JOSEPH E. SZAWLOWSKI, Trustee v. GEORGE W. PRICE & Others.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-520

JOSEPH E. SZAWLOWSKI, trustee,1

vs.

GEORGE W. PRICE & others.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Joseph E. Szawlowski, trustee of the Stan

and Mary Ellen Szawlowski Family Trust (trust), appeals from a

judgment that (i) dismissed without prejudice the plaintiff's

claims against defendants Christopher Maffucci and Don J.J.

Cordell, attorneys at the law firm Casner & Edwards LLP;

(ii) dismissed with prejudice the claims against the other

defendants, which include attorneys George W. Price, Julie

1 Of the Stan and Mary Ellen Szawlowski Family Trust.

2Julie Bryan, Don J.J. Cordell, Christopher Maffucci,
Casner & Edwards LLP, Jeffrey Robins, Joseph Lipschitz, Page
Schroder, and Saul Ewing Arnstein & Lehr LLP. As is our custom,
the parties' names appear as they do in the complaint, although
we note that defendants Robins, Lipschitz, and Schroder indicate
their names are spelled "Jeffrey Robbins," "Joseph Lipchitz,"
"Paige Schroeder."
Bryan, and the Casner & Edwards firm itself (remaining Casner

defendants), as well as attorneys Jeffrey Robins, Joseph

Lipschitz, Page Schroder, and the law firm Saul Ewing Arnstein &

Lehr LLP (Saul Ewing defendants); and (iii) ordered the

plaintiff to pay the Saul Ewing defendants $62,500 in attorney's

fees pursuant to the anti-SLAPP statute, G. L. c. 231, § 59H.

The plaintiff also appeals from an order requiring him to pay

$7,500 in sanctions for suing Maffucci and Cordell without a

good-faith basis (sanctions order).

For the reasons that follow, we affirm the sanctions order

and the portion of the judgment that dismissed the claims

against Maffucci and Cordell. We also modify the judgment to

reflect that the claims against the Saul Ewing defendants are

dismissed under Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754

(1974), and reverse the award of attorney's fees and costs to

those defendants pursuant to the anti-SLAPP statute. Finally,

we vacate so much of the judgment as dismissed the claims

against the remaining Casner defendants and remand for further

proceedings consistent with this memorandum and order.

Background. In reviewing the judgment of dismissal under

rule 12 (b) (6), we accept as true the well-pleaded facts as

alleged by the plaintiff in support of his claims and draw all

reasonable inferences in the plaintiff's favor. See Shaw's

2
Supermkts., Inc. v. Melendez, 488 Mass. 338, 339 (2021). In

reviewing the judge's allowance of the Saul Ewing defendants'

anti-SLAPP special motion to dismiss, we summarize the facts as

derived from the pleadings and attached documentary evidence

before the Superior Court. See Bristol Asphalt, Co. v.

Rochester Bituminous Prods., Inc., 493 Mass. 539, 542 (2024)

(Bristol Asphalt).

This litigation concerns a family potato farming business

in Northampton. The business now operates through four closely-

held corporations and one limited liability company

(collectively, the companies). For years, the companies were

owned by the founder's four grandsons: Frank, Chester, John,

and Stanley Szawlowski. In 2009, the grandsons entered into a

shareholder stock redemption agreement (SSRA) to restrict the

transfer of shares in the companies, provide a mechanism for

purchasing a deceased shareholder's interest, and establish a

method for valuing shareholder interests. In 2016, they

executed an equity agreement that valued each grandson's share

at $4 million. Following John's death in 2016 and Stanley's

death in 2020, the companies are now owned by Frank and Chester

(directly or through family trusts), and the trust that holds

the interests previously belonging to Stanley.

3
In 2018, represented by the remaining Casner defendants

(i.e., Price and Bryan), Frank and Chester tried to amend the

SSRA in an attempt to "freeze out" Stanley and the trust and

deprive them of the full value of their interest in the

companies. According to the plaintiff, these defendants

"colluded and conspired" with Frank and Chester, drafted an

amendment and related written consents "that devalue [m]inority

interest and altered the corporate agreements and structure in

violation of the fiduciary duties and in violation of the

contractual rights," and "arranged for a shareholder meeting

without notice to Stanley for the purpose of execution of those

documents." After Stanley and the trust were notified of the

amendment, they threatened litigation against Frank, Chester,

and the companies. The plaintiff eventually filed a shareholder

lawsuit in the Superior Court against Frank, Chester, and the

companies challenging the validity of the amendment. The

companies retained the Saul Ewing defendants to represent them

in the litigation; the remaining Casner defendants represented

Frank and Chester. In 2020, while the shareholder action was

pending, Chester noticed a special shareholder meeting at which

the 2018 SSRA amendment was ratified; Frank and Chester voted

for ratification, and the plaintiff voted against it.

4
In 2021, the plaintiff brought this action against the

defendant attorneys and law firms, asserting claims for

conspiracy, breach of fiduciary duty, aiding and abetting

tortious conduct, and intentional interference with contractual

or business relations. The defendants moved to dismiss all

claims under the anti-SLAPP statute and rule 12 (b) (6). The

plaintiff voluntarily dismissed the claims against Maffucci and

Cordell.

In an order dated November 28, 2022, the judge denied the

remaining Casner defendants' anti-SLAPP special motion to

dismiss because they failed to show that the claims against them

are based solely on petitioning activity. Nevertheless, the

judge allowed their motion to dismiss under rule 12 (b) (6) on

the ground that the claims are barred by the litigation

privilege. The judge also stated that, in the alternative,

dismissal was proper because the plaintiff failed to plausibly

allege that the remaining Casner defendants caused the trust any

compensable injury. The judge allowed the Saul Ewing

defendants' anti-SLAPP special motion to dismiss, reasoning that

their representation of the companies in the shareholder

litigation and efforts to settle or otherwise resolve that

litigation were protected petitioning activity, and that the

plaintiff failed to show that the Saul Ewing defendants'

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petitioning activity lacked factual support or any arguable

legal basis, or that the plaintiff's claims were not brought

primarily to chill legitimate petitioning activities.

In an order dated December 22, 2022, the judge allowed a

motion for sanctions by Cordell, Maffucci, and Casner & Edwards

(to the extent that the plaintiff sought to hold the firm liable

for the actions of Cordell and Maffucci). The judge concluded

that the plaintiff's claims against Cordell and Maffucci

warranted sanctions under G. L. c. 231, § 6F, and Mass. R. Civ.

P. 11 (a), as appearing in 488 Mass. 1403 (2021), because they

"were wholly insubstantial, frivolous and not advanced in good

faith." The judge ordered the trustee, individually, to pay

$7,500 for attorney's fees and costs incurred in preparing those

defendants' motion to dismiss and sanctions motion.

In an order dated January 30, 2023, the judge denied the

plaintiff leave to amend his complaint because he did "nothing

to show that he has a meritorious motion to amend that would

cure the defects identified in the Court's prior ruling." The

judge also dismissed with prejudice the claims against all the

defendants not voluntarily dismissed, and further ordered the

plaintiff to pay the Saul Ewing defendants $62,500 in attorney's

fees and costs under the mandatory fee-shifting provision of the

anti-SLAPP statute.

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On January 30, 2023, judgment entered as to the dismissal

orders and award of attorney's fees and costs pursuant to the

anti-SLAPP statute. On February 21, 2023, the plaintiff filed a

notice of appeal purporting to appeal from not only the

judgment, but also a variety of orders that predated the

judgment, including the sanctions order of December 22, 2022.

Discussion. 1. Sanctions order. The judge allowed the

motion for sanctions by Cordell, Maffucci, and Casner & Edwards

pursuant to G. L. c. 231, § 6F, and rule 11 (a). General Laws

c. 231, § 6G, provides that an appeal from an order that awards

attorney's fees under G. L. c. 231, § 6F, must be taken to a

single justice of this court "within ten days after receiving

notice of the decision thereon." Because the plaintiff did not

appeal from the judge's sanctions order until two months later

and, when he did, sought review in the wrong forum, his appeal

from the order, to the extent it is based on G. L. c. 231, § 6F,

requires dismissal. See Holmes v. Andersen, 94 Mass. App. Ct.

472, 474-476 (2018). See also Ben v. Schultz, 47 Mass. App. Ct.

808, 814 (1999) (motion under G. L. c. 231, § 6F, is collateral

proceeding, "not a distinct cause of action resulting in a

judgment").

To the extent the order was based on rule 11 (a), we

discern no abuse of discretion. See Van Christo Advertising,

7
Inc. v. M/A-COM/LCS, 426 Mass. 410, 417 (1998). The judge

concluded that the trustee, himself an attorney, willfully

violated rule 11 (a) by filing claims on behalf of the trust

against Cordell and Maffucci without having "a subjective good

faith belief that the pleading was supported in both fact and

law." Id. at 416. Although the plaintiff argues that it was

reasonable to infer from these attorneys' representation of the

companies in other matters that they were also involved in an

alleged conspiracy to draft the SSRA amendment, he made no such

allegation in the complaint, conclusory or otherwise, but rather

"asserted claims against them based solely on their proper and

lawful representation of clients in civil proceedings."

Furthermore, the plaintiff refused to voluntarily dismiss his

claims against these defendants until after they served their

motions to dismiss. The award of $7,500 in sanctions was

appropriate in light of the attorney's fees and costs these

defendants incurred in responding to the plaintiff's baseless

claims against them.

2. Dismissal of the claims against the remaining Casner

defendants. The judge dismissed the complaint against the

remaining Casner defendants under rule 12 (b) (6) for failure to

state a claim for which relief may be granted. "We review the

grant of a motion to dismiss de novo, accepting as true all

8
well-pleaded facts alleged in the complaint, drawing all

reasonable inferences therefrom in the plaintiff's favor, and

determining whether the allegations plausibly suggest that the

plaintiff is entitled to relief." Lanier v. President & Fellows

of Harvard College, 490 Mass. 37, 43 (2022).

We disagree with the judge's conclusion that the

plaintiff's claims against the remaining Casner defendants are

barred by the litigation privilege. The litigation privilege

precludes civil liability based on "statements by a party,

counsel or witness in the institution of, or during the course

of, a judicial proceeding," Sriberg v. Raymond, 370 Mass. 105,

108 (1976), as well as statements "preliminary to litigation"

that relate to the contemplated proceeding. Id. at 109. For

example, in Bassichis v. Flores, 490 Mass. 143, 144 (2022), the

litigation privilege applied because the defendant attorney was

representing his client in a divorce proceeding. In Sriberg,

supra, the Supreme Judicial Court applied the privilege to

statements in a demand letter because they related to a

proceeding that was "contemplated in good faith and . . . under

serious consideration." The litigation privilege does not,

however, "encompass . . . attorneys' conduct in counselling and

assisting their clients in business matters generally." Kurker

v. Hill, 44 Mass. App. Ct. 184, 192 (1998). In Kurker, we

9
declined to apply the privilege to shield attorneys who

allegedly "engaged in a conspiracy to undervalue the assets and

freeze out the plaintiffs." Id.

Here, no litigation was underway or even at a "preliminary"

stage when the remaining Casner defendants began to work with

Frank and Chester on the 2018 SSRA amendment and related written

consents. These defendants were not preparing to initiate

litigation against Stanley or the trust, but rather, it is

alleged, engaged in an effort to deprive them of the full value

of their interest in the companies. It is immaterial whether

they anticipated that Stanley and the trust might initiate

litigation in response, or prepared the amendment with the aim

of defeating such a lawsuit; counselling clients on business

matters does not become "litigation privileged" simply because a

counselled action might result in an injured party filing suit.

We also disagree with the judge's conclusion, in the

alternative, that the claims against the remaining Casner

defendants warrant dismissal because the plaintiff failed to

plausibly allege that those defendants caused the trust any

compensable injury. The parties do not dispute that injury or

damages is an element of each of plaintiff's claims. See Baker

v. Wilmer Cutler Pickering Hale & Dorr LLP, 91 Mass. App. Ct.

835, 842, 847-848 (2017) (breach of fiduciary duty, aiding and

10
abetting, civil conspiracy). See also Blackstone v. Cashman,

448 Mass. 255, 260 (2007) (intentional interference with

contractual or advantageous relationship). Such claims need not

be pleaded with particularity, see Mass. R. Civ. P. 9 (b), 365

Mass. 751 (1974), but rather must be supported by factual

allegations "enough to raise a right to relief above the

speculative level" (citation omitted). Iannacchino v. Ford

Motor Co., 451 Mass. 623, 636 (2008).

In his decision, the judge concluded that although each

count in the complaint contains a conclusory allegation of

damages, "the complaint alleges no facts suggesting that it is

true." The plaintiff alleges, however, that through the 2018

SSRA amendment and written consents, the remaining Casner

defendants engaged in a conspiracy with Frank and Chester to

overcome contractual protections for minority shareholders and

undervalue their shares. Those allegations are sufficient to

plausibly suggest an entitlement to relief for purposes of rule

12 (b) (6) and allow the claims to proceed to discovery. See

Baker, 91 Mass. App. Ct. at 842-849; Kurker, 44 Mass. App. Ct.

at 189-190, 192. At the motion hearing, the judge suggested

that the plaintiff's claim for breach of fiduciary duty faced "a

catch 22 . . . in reverse," whereby there would be no damages if

"the claim fails in liability," but if Frank and Chester are

11
"found to have breached their fiduciary duty," the 2018 SSRA

amendment would be unenforceable and "there wouldn't actually be

damages." Although we acknowledge that the doctrine of issue

preclusion or collateral estoppel could bar the present claim

against the remaining Casner defendants if a judgment enters in

favor of Frank and Chester in the shareholder litigation, see

Miles v. Aetna Cas. & Sur. Co., 412 Mass. 424, 427 (1992), that

is not a basis for dismissal at this stage. Rather, "[t]he only

facts appropriate for consideration in deciding a motion to

dismiss are . . . those drawn from factual allegations contained

within the complaint or within attached exhibits." Eigerman v.

Putnam Invs., Inc., 450 Mass. 281, 285 n.6 (2007), citing Schaer

v. Brandeis Univ., 432 Mass. 474, 477 (2000). We express no

view on how developments in the shareholder litigation that may

have occurred or will occur since the filing of the present

complaint might affect this case.

We similarly reject the remaining Casner defendants'

alternative argument that the plaintiff's claims should be

dismissed for failure to allege a breach of fiduciary duty.

"Whether such a fiduciary relationship exists in a particular

case is largely a question of fact." Baker, 91 Mass. App. Ct.

at 837. Applying Baker, and drawing all reasonable inferences

in the plaintiff's favor, the allegations support a plausible

12
inference that the remaining Casner defendants, acting as

counsel for the companies, breached a fiduciary duty owed to

Stanley and the trust, as well as aided, abetted, and conspired

with Frank and Chester in breaching their fiduciary duties to

Stanley and the trust. See Baker, supra; Kurker, 44 Mass. App.

Ct. at 189-190, 192. To the extent that the remaining Casner

defendants contend that they did not actually represent the

companies in connection with the 2018 SSRA amendment, or that

the facts in Baker and Kurker are distinguishable from what

happened here, those arguments can be addressed on a developed

factual record following discovery.

3. Dismissal of the claims against the Saul Ewing

defendants. We review the judge's ruling on the Saul Ewing

defendants' anti-SLAPP motion de novo. Bristol Asphalt, 493

Mass. at 560-562. In Bristol Asphalt, the Supreme Judicial

Court revised the framework used to assess special motions to

dismiss under G. L. c. 231, § 59H. See Bristol Asphalt, supra

at 554-560. As the court explained in a companion case, this

revised framework applies to all cases in which an anti-SLAPP

motion or appeal remains pending as of the issuance of the

rescript in Bristol Asphalt. See Columbia Plaza Assocs. v.

Northeastern Univ., 493 Mass. 570, 578 (2024). At the first

stage of the framework, the proponent of the special motion to

13
dismiss "must show that the challenged count has no substantial

basis in conduct other than or in addition to the special motion

proponent's alleged petitioning activity." Bristol Asphalt,

supra at 555-556. If the proponent cannot make this threshold

showing, the special motion to dismiss must be denied. See id.

at 556.

We disagree with the judge's conclusion that, in addition

to their representation of the companies in litigation, the Saul

Ewing defendants' other alleged actions "also constitutes

petitioning activity, because they all involved communications

undertaken in an attempt to settle or otherwise resolve the

ongoing litigation by the Trust against Frank, Chester, and the

companies." Although it is true that the "[c]ommencement of

litigation" is petitioning activity, 477 Harrison Ave., LLC v.

JACE Boston, LLC, 483 Mass. 514, 520 (2019), as are settlement

discussions between parties to ongoing litigation, see Plante v.

Wylie, 63 Mass. App. Ct. 151, 159 (2005), the complaint alleges

conduct by the Saul Ewing defendants that went beyond efforts to

prosecute or settle litigation. Specifically, these defendants

allegedly "drafted additional purported corporate documents,

purporting to effectuate the same or similar amendment to the

2009 SSRA as the 2018 SSRA, and ratifying the actions as they

had alleged had been enacted by consent in 2018, but this time

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. . . through a special meeting." The drafting of corporate

documents to effect or ratify changes in contractual rights is

not petitioning activity, and the fact that such conduct may

have been motivated by an attempt to resolve or narrow ongoing

litigation is irrelevant to the anti-SLAPP analysis. See

Bristol Asphalt, 493 Mass. at 555-556; 477 Harrison Ave., LLC v.

JACE Boston, LLC, 477 Mass. 162, 168 (2017). See also G. L.

c. 231, § 59H. Because the plaintiff's claims against the Saul

Ewing defendants were not "based solely on its petitioning

activity," it was error to allow their special motion to dismiss

and award them attorney's fees and costs under the anti-SLAPP

statute. See Columbia Plaza Assocs., 493 Mass. at 578-579.

Nevertheless, we agree that dismissal of the Saul Ewing

defendants was appropriate because they are shielded by the

litigation privilege, which they asserted as an alternative

basis for dismissal in their rule 12 (b) (6) motion. See

Gabbidon v. King, 414 Mass. 685, 686 (1993) ("It is well

established that, on appeal, we may consider any ground apparent

on the record that supports the result reached in the lower

court"). The litigation privilege "applies regardless of

malice, bad faith, or any nefarious motives on the part of the

lawyer so long as the conduct complained of has some relation to

the litigation" (citation omitted). Bassichis, 490 Mass. at

15
150. Here, the Saul Ewing defendants' alleged conduct involved

representation of the companies in the shareholder or other

litigation or efforts to resolve or narrow the issues in those

lawsuits. In particular, the 2020 special shareholder meeting

was called to address the plaintiff's claim, raised in his

shareholder lawsuit, that the 2018 written consents were invalid

because he did not receive prior notice and the actions were not

voted on at a shareholder meeting. The litigation privilege

shields the Saul Ewing defendants from liability because their

involvement in that special shareholder meeting related directly

to "the preparation or conduct of litigation." Id. at 158. By

contrast, as discussed supra, the privilege does not shield the

remaining Casner defendants because no dispute or threat of

litigation existed when they began to work with Frank and

Chester on the 2018 SSRA amendment and written consents; rather,

their alleged conduct involved "counselling and assisting their

16
clients in business matters generally." Id., quoting Kurker, 44

Mass. App. Ct. at 192.3,4

Conclusion. The order dated December 22, 2022, allowing

the motion for sanctions is affirmed. So much of the judgment

dated January 30, 2023, as dismissed the claims against Cordell

and Maffucci is affirmed. So much of the judgment as dismissed

the claims against the Saul Ewing defendants is modified to

reflect that dismissal is for failure to state a claim and that

portion of the judgment, as so modified, is affirmed. So much

of the judgment as awarded the Saul Ewing defendants attorney's

fees and costs under the anti-SLAPP statute is reversed. So

much of the judgment as dismissed the claims against the

remaining Casner defendants is vacated, and the matter is

3 Because we vacate the judge's decision dismissing the
plaintiff's claims against the remaining Casner defendants, we
need not address his argument that the judge abused his
discretion by denying him leave to amend those claims. As for
the Saul Ewing defendants, we conclude that the judge properly
exercised his discretion in denying the motion to amend. The
plaintiff moved to amend only after the judge allowed the
motions to dismiss and did not submit a proposed amended
complaint or otherwise explain how his amended pleading would
have merit. See Mass. R. Civ. P. 15 (a), 365 Mass. 761 (1974)
(plaintiff not entitled to amend as matter of right after order
of dismissal); Johnston v. Box, 453 Mass. 569, 582 (2009).

4 The defendants' requests for appellate attorney's fees are
denied.

17
remanded for further proceedings consistent with this memorandum

and order.

So ordered.

By the Court (Milkey,
Hodgens & Toone, JJ.5),

Clerk

Entered: August 16, 2024.

5 The panelists are listed in order of seniority.

18