D.D.S. Industries, Inc. v. Leftfield LLC.

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-511

D.D.S. INDUSTRIES, INC.

vs.

LEFTFIELD LLC.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This dispute arose from a project to renovate and construct

a high school in the city of Fall River (city). A subcontractor

on the project, D.D.S. Industries, Inc. (D.D.S.), brought a

claim for defamation against the project manager, Leftfield LLC

(Leftfield), alleging that Leftfield published false statements

about D.D.S. in a letter to the city's mayor. On Leftfield's

motion a Superior Court judge dismissed the claim under G. L.

c. 231, § 59H (commonly known as the anti-SLAPP statute), and

D.D.S. appeals. We affirm.

Background. D.D.S. was one of several contractors that

responded to a request for qualification (RFQ) for heating,

ventilation, and air conditioning work on the project. The RFQ
was issued in accordance with G. L. c. 149A, § 8, which

establishes a detailed process for selecting trade contractors

to perform "sub-bid classes of work" on certain public building

projects. In brief, the process has two phases: the first

consists of scoring the responses to the RFQ and creating a list

of "prequalified" trade contractors, G. L. c. 149A, § 8 (e)-(f);

and the second consists of inviting all "prequalified" trade

contractors to submit a bid on the project, G. L. c. 149A,

§ 8 (g). D.D.S. was prequalified to bid under this process and

then, as the lowest qualified bidder, was awarded the contract.

See G. L. c. 149A, § 8 (h).

Construction on the project began at some point in 2018.

After the project encountered significant delays, the general

contractor, Suffolk Construction Company (Suffolk), sent D.D.S.

a series of notices of default, alleging that D.D.S. had failed

to complete numerous items of work in a timely and satisfactory

manner. D.D.S. responded by claiming that the delays were

caused by scheduling issues, the COVID-19 pandemic, and, mostly,

Suffolk itself.

On February 23, 2021, D.D.S.'s owner, Dwight Silvia, posted

a lengthy message in a public Facebook group called "Fall

River." The Fall River Reporter, a local newspaper, managed the

group, which at the time had over twenty thousand members. In

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the post Silvia criticized Suffolk's management of the project,

alleging among other things that Suffolk was attempting to

"cover up" "numerous deficiencies" in the construction; that the

defective work would expose children attending the school to

health and safety issues, such as mold and inadequate fire

safety measures; and that "the Fall River taxpayer will continue

to pay" for the problems caused by Suffolk's "poor construction

practices." Silvia admitted that D.D.S. was responsible for

"some minor problems" but claimed that these did not affect

health or safety or the integrity of the building.

Leftfield received numerous telephone calls and requests

for comment from local media as a result of Silvia's post. On

February 24, 2021, Leftfield responded to the post by sending

the letter that is the subject of this case. In the letter,

addressed to the "Mayor of Fall River," Leftfield characterized

Silvia's post as "misleading" and attributed the majority of the

quality issues with the project to D.D.S. The letter went on to

describe the quality issues, both those attributable to D.D.S.

and those attributable to others, and the remedial steps taken

to resolve them. On February 26, 2021, the mayor posted the

letter on his own Facebook page.

A few months later, D.D.S. filed the underlying complaint

against Leftfield. The complaint, which D.D.S. amended once,

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identifies the following statements in Leftfield's letter as

defamatory: D.D.S. was "responsible for most of the quality

issues" on the project; and D.D.S. was "marginally qualified" to

work on the project. After a hearing the judge allowed

Leftfield's special motion to dismiss the amended complaint

under the anti-SLAPP statute and awarded Leftfield its

attorney's fees and costs.

Discussion. The anti-SLAPP statute "provides a procedural

remedy -- the special motion to dismiss -- for early dismissal

of SLAPP suits, i.e., 'lawsuits brought primarily to chill the

valid exercise of the constitutional rights of freedom of speech

and petition for the redress of grievances.'" Nyberg v.

Wheltle, 101 Mass. App. Ct. 639, 645 (2022), quoting Blanchard

v. Steward Carney Hosp., Inc., 477 Mass. 141, 147 (2017). A

special motion to dismiss under the anti-SLAPP statute is

evaluated under a two-stage, burden-shifting test. First, the

moving party must demonstrate "through the pleadings and

affidavits that the claims against it are 'based on' the

[party's] petitioning activities alone and have no substantial

basis other than or in addition to the petitioning activities."

Bristol Asphalt Co. v. Rochester Bituminous Prods., Inc., 493

Mass. 539, 555 (2024), quoting Duracraft Corp. v. Holmes Prods.

Corp., 427 Mass. 156, 167-168 (1998). Second, if the moving

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party makes that showing, the burden shifts to the special

motion opponent to demonstrate that the moving party's "exercise

of its right of petition 'was devoid of any reasonable factual

support or any arguable basis in law' and . . . 'caused actual

injury to the [special motion opponent].'" Bristol Asphalt Co.,

supra at 557, quoting G. L. c. 231, § 59H.1 Our review of a

judge's decision on a special motion to dismiss is de novo.

Bristol Asphalt Co., supra at 560.

1. First stage. "'[P]etitioning' has been consistently

defined to encompass a 'very broad' range of activities in the

context of the anti-SLAPP statute." North Am. Expositions Co.

Ltd. Partnership v. Corcoran, 452 Mass. 852, 861 (2009), quoting

Duracraft, 427 Mass. at 162. These activities include "any

written or oral statement made before or submitted to a

legislative, executive, or judicial body, or any other

governmental proceeding" and "any written or oral statement made

in connection with an issue under consideration or review by a

legislative, executive, or judicial body, or any other

governmental proceeding." G. L. c. 231, § 59H. "[A]ll

1 In Bristol Asphalt Co., 493 Mass. at 553, which was
decided while this appeal was pending, the court eliminated the
so-called "second path" of the second stage, which had provided
an alternative means by which an opponent could defeat a special
motion. D.D.S.'s opposition to Leftfield's motion did not, in
any event, seek to rely on the second path.

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statements made to influence, inform, or at the very least,

reach governmental bodies -- either directly or indirectly"

qualify as petitioning (quotations omitted). North Am.

Expositions Co. Ltd. Partnership, supra at 862.

Here, the sole basis of D.D.S.'s defamation claim is the

letter that Leftfield sent to the city's mayor. That letter

constituted petitioning because it was a statement submitted to

a representative of an executive body to inform him of issues

related to an ongoing public construction project. See North

Am. Expositions Co. Ltd. Partnership, 452 Mass. at 862; Office

One, Inc. v. Lopez, 437 Mass. 113, 122-123 (2002). D.D.S.'s

conclusory assertion that Leftfield wrote the letter not to seek

redress for a grievance, but "in clear retaliation for D.D.S.'s

Facebook post," does not take the letter outside the scope of

petitioning. See Bristol Asphalt Co., 493 Mass. at 563

("neither a special motion proponent's identity, nor the motive

behind its decision to engage in petitioning activity . . . , is

relevant to the threshold inquiry"); Baker v. Parsons, 434 Mass.

543, 551 (2001) ("showing by the defendants that the claims

against them were based on their petitioning activities alone

[was] not defeated by the plaintiff's conclusory assertion that

'certain statements made by the defendants [in petitions to

government officials] constitute[d] defamation'").

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We are also unpersuaded by D.D.S.'s argument that the

letter was not petitioning because Leftfield had no connection

to the city beyond "a contractual relationship." As an initial

matter, D.D.S. waived this argument by failing to raise it to

the judge. See Carey v. New England Organ Bank, 446 Mass. 270,

285 (2006). And in any event, the case on which D.D.S. relies,

Kobrin v. Gastfriend, 443 Mass. 327 (2005), does not support its

position. There, the court held that the special movant, a

physician who was retained by a licensure board to act as its

expert witness, was not engaged in petitioning when he produced

an expert opinion pursuant to his contract with the board. See

id. at 333, 337-338. Kobrin "rest[s] on the commonsense

principle that a statute designed to protect the constitutional

right to petition has no applicability to situations in which

the government petitions itself." Keegan v. Pellerin, 76 Mass.

App. Ct. 186, 192 (2010). See Cardno ChemRisk, LLC v. Foytlin,

476 Mass. 479, 490 (2017) (special movant in Kobrin not engaged

in petitioning because he "spoke in the capacity of . . . a

contracted government expert witness"). Here, Leftfield was

exercising its own right to petition; it was not speaking on

behalf of the government. Kobrin does not apply in these

circumstances.

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2. Second stage. Because Leftfield met its burden at the

first stage, the burden shifted to D.D.S. to show both that

Leftfield's letter "was devoid of any reasonable factual support

or any arguable basis in law" and that it caused "actual injury"

to D.D.S. Bristol Asphalt Co., 493 Mass. at 557, quoting G. L.

c. 231, § 59H. "[P]roving petitioning is 'devoid' of any

reasonable factual support or any arguable basis in law is a

difficult task," Bristol Asphalt Co., supra, akin to proving

frivolousness, see id. at 559-560. We conclude that D.D.S.

failed to meet this burden and thus need not decide whether it

has shown actual injury.

As mentioned, D.D.S.'s complaint identifies two statements

in the letter as defamatory. The first -- that D.D.S. was

"responsible for most of the quality issues" on the project --

was not devoid of reasonable factual support (and does not

implicate any law). The letter goes on to describe in detail

the quality issues attributable to D.D.S. The description in

the letter is supported by the exhibits that Leftfield submitted

with its special motion, including the notices of default that

Suffolk sent to D.D.S. and a "Punch List" dated August 26, 2021,

identifying over 300 open items left for D.D.S. to remedy or

complete. In response to the special motion, D.D.S. submitted a

single affidavit from Silvia in which he summarily asserted that

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"D.D.S. was not responsible for the majority of the Project's

issues, but rather the issues on the Project arose from

Suffolk's deficiencies and delays." This was insufficient to

show that Leftfield's petitioning lacked any reasonable factual

support. See 477 Harrison Ave., LLC v. JACE Boston, LLC, 477

Mass. 162, 173 (2017) (special motion opponent "cannot meet its

burden merely by presenting affidavits contradicting the factual

basis of the special movant's petitioning activities").

The second statement identified as defamatory -- that

D.D.S. was only "marginally qualified" to work on the project --

was also not devoid of reasonable factual support or an arguable

basis in law. Under G. L. c. 149A, § 8 (f), "[a]ll trade

contractors who achieve a score of 70 points or greater [based

on their responses to the RFQ] shall be prequalified to submit a

bid." It is undisputed that D.D.S. scored a 74.8 in the

prequalification process. In comparison, the other companies

that responded to the RFQ achieved scores ranging between 83.8

and 90.2. This supports Leftfield's characterization of D.D.S.

as "marginally qualified."2

2 D.D.S. argues otherwise on the ground that a trade
contractor's prequalification score is not a public record.
That is irrelevant to whether Leftfield's petitioning is devoid
of a reasonable basis in fact or law.

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On appeal D.D.S. asserts that Leftfield's letter contains

the additional false statement that D.D.S. "was kept on the List

of Bidders because they are a Fall River-based company." This

statement is not identified in the complaint, however. Thus, it

is not a basis of the defamation claim, see Kelleher v. Lowell

Gen. Hosp., 98 Mass. App. Ct. 49, 53 n.2 (2020), or, in turn, a

basis on which D.D.S. can meet its burden under the anti-SLAPP

test. See Bristol Asphalt Co., 493 Mass. at 558 n.18 ("mere

existence of an isolated 'untrue' or 'misleading' statement

would not, in and of itself, mean that the petitioning activity

was devoid of any reasonable factual support or arguable basis

in law"). Moreover, even had D.D.S. adequately pleaded the

claim, we agree with Leftfield that the statement in the letter

can arguably be construed to be referring to the fact that

D.D.S.'s local references earned it the minimum number of points

required for prequalification. On D.D.S.'s evaluation form, the

reviewer noted: "Meets minimum points but had to call 4

references to hit minimum in all categories. Similar experience

and ability to do job as large as [the project] should be

discussed." One of D.D.S.'s references was from a project in

Fall River, and at least two others were from projects in the

same county. The evaluation therefore provides colorable

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support for Leftfield's statement. See Bristol Asphalt Co.,

supra at 559-560.

3. Appellate fees. Leftfield has requested an award of

its appellate attorney's fees and costs. It is entitled to such

an award. See O'Gara v. St. Germain, 91 Mass. App. Ct. 490, 501

(2017). Accordingly, within fourteen days of the date of this

decision, Leftfield may file an application for fees and costs.

The application shall be limited to those fees and costs

incurred in defending this appeal and shall not include any fees

or costs associated with postjudgment discovery efforts. D.D.S.

may have fourteen days to respond. See Fabre v. Walton, 441

Mass. 9, 10-11 (2004).

Judgment affirmed.

By the Court (Shin, Ditkoff &
Brennan, JJ.3),

Clerk

Entered: November 12, 2024.

3 The panelists are listed in order of seniority.

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