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Mike Franco case file

Mass. Appeals Court decision: Franco v. Mudford

Franco v. Mudford
802 N.E.2d 129 (Table)
Jan. 21, 2004. (Approx. 1 page)


Unpublished Disposition

Appeals Court of Massachusetts.

Michael FRANCO,



No. 02-P-1030.

Jan. 21, 2004.



***1 Michael Franco appeals from an order of the Appellate Division of the District Court dismissing his claims of malicious prosecution and abuse of process pursuant to G.L. c. 231, 59H, the "anti-SLAPP" statute, [FN1] and dismissing his claim of trespass quare clausum fregit pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974). We affirm.

FN1. The District Court had dismissed the abuse of process and malicious prosecution claims under Mass.R.Civ.P. 12(b)(6), 365 Mass.

755 (1974). The Appellate Division determined that the claims survived a rule 12(b)(6) analysis but nonetheless should be dismissed under the anti-SLAPP statute.


The complaint alleges that on April 2, 1998, the parties [FN2] were talking and the left side door of the husband's vehicle was open. The husband wished to end the conversation and close the door to the vehicle but the wife placed herself in such a way that she blocked him from closing the door. The husband continued to try to pull the door closed so that he could leave.

FN2. At the time the conduct at issue took place, the parties were married but separated. They have subsequently divorced. For ease, we refer to the parties as husband and wife.


The wife's version of the events, pertinent to the special motion to dismiss, is similar. She contends the parties met to transfer their baby to the husband's care for visitation and that they argued when the wife questioned when she could expect the child and cautioned him not to return the baby late. She averred that she approached the car to explain her comment but that the husband was not interested in an explanation and closed the car door on her three times before allowing her to move out of the way to allow him to close the door.

Both parties agree that the wife thereafter went to the police station, reported the incident, and completed an affidavit in support of further abuse prevention orders. On the basis of this incident, the husband was subsequently arrested and prosecuted for violating an existing abuse prevention order. He was found not guilty at trial. This complaint alleging abuse of process, malicious prosecution, and trespass quare clausum fregit followed.

The husband contends that his wife's conduct in signing an affidavit for further abuse prevention orders resulting in his prosecution was motivated not by fear of him, but by her desire to gain a tactical advantage in custody proceedings pertaining to the parties' pending divorce and custody dispute over their young daughter. He claims it was error to allow the wife's special motion to dismiss [FN3] his malicious prosecution and abuse of process claims because the improper motivation underlying the wife's "petitioning activity" provides a separate substantial basis other than or in addition to the petitioning activities for his claim. See McLarnon v. Jokisch, 431 Mass. 343, 348 (2000). We disagree.

FN3. The special motion to dismiss was brought pursuant to G.L. c. 231, 59H, commonly known as the "anti-SLAPP" statute.


"The filing of a complaint for an abuse protection order and the submission of supporting affidavits are petitioning activities encompassed within the protection afforded by G.L. c. 231, 59H." Fabre v. Walton, 436 Mass. 517, 523 (2002). In Fabre, as here, where the appellant's abuse of process and malicious prosecution claims were dismissed under the anti-SLAPP statute, the appellant argued that it was not the "petitioning activity" that was the subject of his claim, but the complainant's "ulterior motive" in bringing a 209A complaint in order to make a permanent mark on the appellant's record. Id. at 523-524. The Supreme Judicial Court held that "[n]otwithstanding [plaintiff's] allegations concerning the motive behind [the appellee's] conduct, the fact remains that the only conduct complained of is [the appellee's] petitioning activity." Id. at 524. "[T]he motive behind the petitioning activity is irrelevant at this initial stage." Office One, Inc. v. Lopez, 437 Mass. 113, 122 (2002). "The focus solely is on the conduct complained of, and, if the only conduct complained of is petitioning activity, then there can be no other 'substantial basis' for the claim." Ibid. Thus, notwithstanding the wife's alleged improper motivation in this case, the only conduct complained of is the petitioning activity. Once it is established that there is no other substantial basis for the claim, the burden shifts to the husband to demonstrate that the petitioning activity was "devoid of any reasonable factual support or any arguable basis in law." Fabre, 436 Mass. at 524. "In determining whether the petitioning activity is devoid of any reasonable factual support or arguable basis in law, the statute directs the judge to consider the 'pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based." ' Ibid., citing G.L. c. 231, 59H. Here, the husband concedes that he attempted to pull the car door closed at least twice while the wife was in the doorway. He does not deny hitting her. An abuse prevention order prohibiting the husband from abusing the wife was in place at the time of the incident. (S.A.4-5) Notwithstanding his ultimate acquittal on criminal charges, on these facts there was no error in concluding there was reasonable factual support for the petitioning activity. There was no error in allowing the special motion to dismiss.

***2 In Count II of his complaint, the husband contends he was under no obligation to continue the conversation with his wife and that the wife committed the tort of trespass quare clausum fregit by standing in the doorway and preventing him from closing the door. On appeal, the husband tacitly concedes that he raised the wrong theory of law but argues that dismissal under rule 12(b)(6) is error if the facts state a claim under any theory of law. He contends his wife's conduct in talking to him at his open car door and blocking him from closing the door constitutes false imprisonment, trespass to chattels, or battery. Even accepting the husband's version of the facts as true, as we must when considering a rule 12(b)(6) motion, [FN4] the facts simply do not support a claim of false imprisonment by "unlawful confinement by force or threat." Ortiz v. County of Hampden, 16 Mass.App.Ct. 138, 140 (1983). Nor was there any claim of damages to the car or his person, a necessary element of trespass to chattels. See New England Tel. & Tel. Co. v. National Merchandising Corp., 335 Mass. 658, 664 (1957), and authorities cited. Finally, we do not countenance the husband's argument that the wife's position effectively made him strike her with the door such that we should find that she initiated the contact necessary for his battery claim to survive.

FN4. "In considering a motion to dismiss under Mass.R.Civ.P. 12(b)(6), we accept as true the factual allegations of the complaint, as well as any reasonable inferences that may be drawn from the facts therein alleged." Berkowitz v. President & Fellows of Harvard College, 58 Mass.App.Ct. 262, 270 (2003).


The wife has requested leave to file an affidavit documenting the reasonable fees she has incurred in this appeal. Pursuant to G.L. c. 231, 59H, when a special motion to dismiss is properly granted, the award of reasonable attorney's fees and costs, including appellate fees and costs, is mandatory. MacDonald v. Paton, 57 Mass.App.Ct. 290, 296 (2003). Leave to submit the necessary motion and supporting affidavit is granted.

Decision and order of the Appellate Division affirmed.

Franco v. Mudford
802 N.E.2d 129 (Table), 60 Mass.App.Ct. 1112, 2004 WL 98193 (Mass.App.Ct.) Unpublished Disposition