VITTANDS V. SUDDUTH 730 N.E.2d 325 (2000) CASE BRIEF

VITTANDS V. SUDDUTH

730 N.E.2d 325 (2000)

NATURE OF THE CASE: Sudduth (D) appealed a grant of summary judgment on her counterclaims for abuse of process and intentional infliction of emotional distress.

FACTS: D purchased a six-lot subdivision containing lot 4A in 1985 and sought to develop the subdivision for residential use. D had obtained from the city and the Commonwealth all of the necessary building and sewage disposal permits that would allow construction of residences on the subdivision finally to go forward. Vittands (Ps) are neighbors but not abutters to lot 4A. Several Ps confronted D from time to time, informing her that they would never allow anything to be built on lot 4A, that their children had always played on it, and that the neighbors considered it their 'private park.' Vittands (P), told D in 1985 that he was going to 'take' all her land and later told her that he would prevent the construction of anything on the Hesperus Avenue lots at all costs. Ps in fact had been 'involved in a series of administrative proceedings and litigation involving the development of Lots 4A, 5A and 6A.' Ps had been 'actively opposing the development of the defendant's property for nine years.' Hence the war began. When Ps' attorney, Brian Cassidy, allegedly discovered for the first time that the city board of health (board) had granted D an on-site sewage disposal permit in December, 1992, Cassidy sent a letter to the board on December 3, 1993, alleging that the sewage disposal system was in violation of board regulations and requesting a review of the situation. The board never responded to this letter. D contends that Great Pond Builders informed her that Ps, aware of a pending sales agreement, had trespassed onto her land in order to harass individuals from Great Pond Builders as well as other potential buyers. Approximately five and one-half months after his first letter, Cassidy again wrote to the board, itemizing the sewage disposal system's alleged violations of local and State environmental regulations. Cassidy's letter also stated that the disposal system required a variance and therefore the board's agent did not have the authority to approve the disposal permit issued to D. Believing that the installation of the sewage disposal system was 'imminent,' Ps filed suit against d in Superior Court the next day, requesting relief in the form of a temporary restraining order and a preliminary injunction to prevent the construction of the disposal system. The neighbors also sought a declaratory for the alleged needed variances. Curiously, neither the board, the city, nor the DEP were named as parties in Ps' suit. The complaint further stated that disposal system variances had been required for other subdivision lots and were denied and that they had expected that lot 4A's system would also require variances pursuant to board regulations. Ps submitted an affidavit by Vittands (P), who is an environmental engineer, averring that his review of the sewage disposal system plans submitted by D showed numerous State and local environmental violations. On June 6, 1994, a hearing was held on Ps' motion for injunctive relief. D did not appear, since neither she nor her counsel apparently knew of the hearing in time to attend, although notice had been served at D's place of business. A Superior Court judge granted the motion for injunctive relief ex parte. The same judge vacated the preliminary injunction without opinion on June 19. D then filed four counterclaims against Ps, claiming abuse of process and intentional infliction of emotional distress, costs and requesting sanctions against Cassidy under Mass.R.Civ.P. 11(a). The judge entered summary judgment without opinion in favor of D on Ps' initial lawsuit. Great Pond Builders had opted not to complete the purchase of lot 4A and had informed her that they would not close pursuant to the purchase and sale agreement while Ps' claims remained outstanding. Ps' filed a special motion to dismiss D's counterclaims. A different Superior Court judge allowed the special motion and, pursuant to the statute, also awarded attorneys' fees to Ps in the amount of $3,255. D appealed this dismissal of her counterclaims to this court. While her appeal was pending, D received a summons in December, 1995, to appear for involuntary bankruptcy. The subdivision containing lot 4A was eventually sold to pay the accumulated taxes on the land. The case was remanded. Ps filed a renewed special motion to dismiss under the anti-SLAPP Statute as well as a motion for summary judgment on D's counterclaims. The judge allowed the motion for summary judgment on all of D's counterclaims. Both parties appealed.

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