Man: SJC-13011
in the matter of an impounded case.
-: Okay.
Mr. Briony quick.
Leone-Quick,
sorry.
-: No problem, Chief justice.
Good morning everyone.
My name is Brett Leone-Quik,
and I represent the appellant
in this appeal.
I'm gonna focus my presentation this morning
on why the Probate court misapplied the second stage
of the augmented DuraCraft framework
that this court has established
for deciding motions to dismiss fraud
under the Massachusetts Anti-SLAPP Statute.
I'm also going to address why the Probate court
doesn't have jurisdiction over any of the claims
that are before it
and why (indistinct) is a matter of law
in refusing to give full faith and credit
to a judgment entered in Minnesota.
Now, both parties agree that this appeal involved,
involves claims from minutes
regarding distributions from a Minnesota trust
that are governed by Minnesota--
-: Mr. Leone-Quik,
before you,
I think we have a big interest
in whether the Anti-SLAPP Statute
is at all applicable here.
We, I,
before I wouldn't jump into these other issues
before you give us comfort
that the Anti-SLAPP can be applied
to this kind of accounting procedure,
because
we're,
we're far removed from
sort of
where Anti-SLAPP started at this point.
So could you start particularly with the argument
that this accounting procedure is just not a civil claim
that's covered by the Anti-SLAPP laws?
'Cause I wouldn't skip that step if I were you.
-: Sure, I won't,
I won't skip that at all,
I'll address it right now upfront.
So, I think you can start with
the plain language of the statute
which makes the Anti-SLAPP Statute available in,
quote "any case"
where a party asserts
quote "civil claims".
-: Is this a civil claim?
-: This is a civil claim I think.
And, and, and here's why.
You read the amended objections,
It makes allegations of fact
and it alleges a legal theory
under which the appellee seeks damages.
If, if that doesn't fit the definition of a claim,
however that term is defined,
I'm not sure what would.
The amended objection-- -: So every account,
what is,
you know again,
we're not probate lawyers.
So, walk us through a little bit.
This is, this is an accounting process.
What's it,
what's it called?
And what is its purpose?
-: So, conservators annually file accounts
with the Probate court.
And I think a good way to get acclimated
to what this looks like
is page 28 of the record
is the account forms
that the Probate court require that conservators use.
That'll give you a good sense
of what these accounts look like,
because I think that informs
what an objection to account will look like.
And so, when you look at the form
that's mandated by the Probate court
to use for filing accounts,
you'll see it has three schedules.
There's Schedule A,
that lists the receipts or the income
that had been received from the trust during that year.
Schedule B, is the expenses paid by the estate
or debts owed by the estate.
And then schedule C
is kind of a summation of the assets on hand.
And so, when a conservator files an account
and if a protected person wants to object to the account
then the objection needs to focus on
things that are listed on the account
or things that should have been listed on the account.
For example, if there is an estate asset
that isn't listed on the account
but should be listed on the account,
that's a proper form of an objection.
And if, for example,
there's an expense listed on the account
that is excessive or inappropriate,
that's the sort of thing that can be objected to as well.
-: Is this like,
and again, I'm using lay terminology and I apologize,
but is this also like a final accounting?
Is there a finality purpose to these objections
where we're basically gonna get all this done
and move on type of thing?
-: That's right.
So the process plays out in that fashion,
where the conservator can move for a final settlement
of all of the accounts at the end of the conservatorship.
And at that point in time
the Probate court has two options:
One, if there's an objection to the account
it can hold a proceeding
where the objections are resolved.
Again, that gets back to my initial point,
why this is like a claim,
why this is like a case.
The regular rules of civil procedure
govern situations where there's an objected to accounting.
So an objected to accounting
is a proceeding
almost identical to any other piece of litigation
that you would see in the Superior court.
In fact, it's, it's governed by the same rules of procedure.
So, an objection to an account
while focusing on
what's identified in the account
does take the form of litigation.
It's an action where
allegations have been made
that something is not appropriately reflected
on the account
or is like I said, it's an excessive expense
and then that issue is litigated.
In, in the,
in the manner that any other claim
or case would be litigated.
-: Mr. Briony-Quik,
Leone-Quik,
the...
Are there other cases involving accounting ?
Where...
Are they, are you aware of any other,
any SLAPP cases brought in the context of accounting?
'Cause accounting's a fairly common corporate procedure too,
right?
I mean, any,
has any SLAPP ever been brought into one of those
that you're, that you know of?
-: We have not seen any published decisions on that.
I think our papers have reference
to one appeals court decision
that's unpublished.
The (indistinct)
if I've pronounced that right, case.
And that dealt with,
you know, a proceeding in the Probate court,
which, you know, did not
you know, the, the court there apparently
wasn't troubled by the fact that
the Anti-SLAPP Statute was being applied
in the Probate court case.
But there,
we haven't seen any reported decisions involving objections.
I think that's a function of two things though.
One is,
it just means that they haven't arisen in enough numbers
to filter up through the system
and become published decisions.
Two, I think it's a function
of what we were talking about before
which is,
the purpose of the account
is not to allege wide ranging claims,
wide ranging conspiracies,
like the amended objections do here.
But they're really intended
to focus on
specific entries in the account.
And yes, in that context,
in a proper accounting context,
the Anti-SLAPP really won't apply
because those types of issues
that the accounting process is intended to focus on
wouldn't necessarily give rise
to the types of allegations and claims
that are subject to the Anti-SLAPP Statute.
But that's not the case we have here.
Here we have an amended objection
that goes far beyond anything that's in an actual account.
In fact, there's really no nexus
between the allegations and the claims asserted
and the accounts that were actually filed.
And so I think the Anti-SLAPP Statute should apply.
And I, and I guess,
another way of looking at it is,
why should we be drawing a bright line here
that exempts entire types of cases or proceedings
from the reach of the Anti-SLAPP Statute?
You know,
there's nothing in the plain language of the statute
that suggests we should do that.
There's nothing in the legislative history
I saw suggesting we should do that.
And, and-- -: Can I ask you to,
to go on with that explanation.
Is there anything about Anti-SLAPP and its purposes
that would lead to its proper application
in an objection to an accounting?
-: I think it does because again,
the purpose of this statute is pretty broad,
it's to protect lawful petitioning activity
across a very broad spectrum of,
you know, of instances.
And so I think applying it in the Probate court context
doesn't raise any issues at all.
There's been a suggestion in the Apellis papers
that this would somehow assert
the jurisdiction of the Probate court
to oversee conservatorships.
And I just don't see that frankly.
This will simply
weed out claims that the legislature has said
do not involve,
do not belong in any courts of the Commonwealth.
And, you know, certainly if this,
these claims were asserted in the superior court
and the Anti-SLAPP Statute would apply.
And so it's unclear why it shouldn't apply
just because it's been,
you know, these same sorts of claims
that would be subject to the statute in the superior court.
The statute somehow doesn't apply
because the same sort of allegations and claims
have been made in the Probate court
in connection with an accounting process.
So, you know,
I don't think it'll, you know,
you know, to kind of finish my point on this.
I don't think it'll interfere
with the Probate court's jurisdiction
over conservatorships at all.
It'll simply allow conservators
to enjoy the same protections
that anyone else has under the statute
when they're engaged in lawful petitioning activities.
It won't weed out legitimate claims against conservators,
those will stay.
That's what the augmented DuraCraft framework
is intended to do,.
Is to differentiate between claims that should go forward
and claims that, you know, should not.
So--
-: I'm gonna encourage you, Mr.Leone-Quick,
to move on to your actual argument
with regard to the SLAPP Statute
only because your time's running out.
-: My time is running out,
so thank you very much.
What I wanna focus on again is,
is the second prong of the DuraCraft analysis.
And under that prong,
it's the appellee who has to carry the burden
to show both:
One, that the claims are colorable
and two, that the claims were not retaliatory.
And it's on this prompt
that the Probate court aired as a matter of law.
You know, this court held in Blanchard too,
that colorability in this context means
whether the claim quote
"offers some reasonable possibility
of a decision in the party's favor".
And there are numerous independent reasons
why the claims for attorney's fees
are not colorable here under this standard.
The first one is because,
my clients did not owe
any fiduciary duty as conservators
at the point in time
when they petitioned the Minnesota court
to reform a family trust.
The, you know,
the timeline goes like this very briefly.
In October 2014,
the Probate court terminated the guardianship here
and transferred the question
of whether the conservatorship should continue
to a Florida state court.
In July of 2016,
after a trial,
the Florida state court sided with my clients
and determined that a professional trustee
should be appointed to oversee the Corpus of this estate.
In July of 2016,
pursuant to that order,
my clients transferred custody
of the entire conservatorship estate
and all of its assets
to the professional trustee
and they were only required
to file accounts
through July of 2016.
The Probate court's decision below
specifically recognize that July 6th, 2016,
was quote,
"when the conservator's role of fiduciaries
was effectively terminated
by the Florida court's order
appointing Northern Trust Company
as limited guardian of the protected person's estate."
In addition, in January of 2017,
the parties stipulated
to the end of the conservatorship in Massachusetts.
It wasn't until August of 2017,
a year after my clients stopped being conservators
over the conservatorship estate and its assets
that they filed their petition in Minnesota.
So--
-: Don't, we have,
again, I thought the Probate court judge's decision was,
you know, sort of very perceptive
and, and it,
it talks about the fact that for 15 years,
your clients didn't do the accounting, right?
Or, you know,
basically, something that should have been happening
on a regular basis wasn't happening at all.
And this was part of sort of an orchestrated,
you know,
campaign.
I'm not sure.
I mean, again, I don't know the truth of that
but it's disputed
and it looks like that's what was driving the probate judge
to reach the result he did.
And there seems to be,
particularly he's an expert in this type of,
you know, trust issue.
Don't we weigh into this carefully, right?
-: Well, I think, sure.
And I think though that
what we're really focusing on with colorability,
you know, can be reviewed by this court.
And the, and the Probate court's decision on colorability
really doesn't,
isn't based on any kind of specialty knowledge
or specialty rule with respect to the Probate court.
Again it, it goes to breach of fiduciary duty
which I've just talked about.
Which indisputably
and even pursuant to the Probate court zone decision
didn't exist for my clients
at the time they brought their petition to me.
-: But the problem is,
at least, according to my reading
of the probate judge's decision.
For 15 years,
your clients don't live up to its fiduciary obligation,
at least in this accounting aspect of this.
And then,
the lawsuit immediately
takes them out of the whole equation.
They're no longer conservators.
It also fixes some obvious problems with the trust
but it just,
I think the judge is saying,
I got to reserve judgment here,
whether this is retaliatory or without merit,
because there's a lot going on here
and your clients are fiduciaries to this,
at one point mentally ill
protected person.
-: Sure, so the way I would address that is,
the original objections that have been completely resolved
and are not before the court anymore.
The Probate court or part of this appeal
dealt with that fact,
that the objections had not been filed for 15 years.
There was motion practice.
There were claims made based in part on the delay in time.
And those have been resolved
through a settlement of the parties.
These are now new issues in different issues
and I really don't think the issues bleed over.
You know, my clients paid a price in settlement
with respect to their tardy filing of accounts earlier.
And there's really no connection
between the claims at issue now,
the amended objections at issue now
and the,
you know,
the fact that the
accounts had not been filed for several years.
-: Leone-Quick, you mentioned legislative history.
Isn't part of the legislative history,
and we see this mentioned in,
in a lot of Anti-SLAPP cases,
that the whole point of Anti-SLAPP was,
you had folks out there
who would engage in petitioning activity
and they just get overwhelmed,
crushed
and intimidated out of litigation.
And
that
often times
we see Anti-SLAPP in the antithesis of that situation.
And even when used appropriately,
it, it becomes not that,
but a litigation weapon.
Isn't that part of the legislative history?
-: That's part of the legislative history.
And that's what I wanted to address as well
in terms of the kind of retaliate,
you know, the judges finding,
the Probate court judges finding on
a retaliatory purpose and retaliation.
And he based that on two factors:
One, which we say is not appropriate,
which is that,
the claims were only filed
after the petitioning activity occurred.
And then two,
that this isn't the typical case.
That this isn't the case of a developer against a,
you know, a citizen of modest means
petitioning the government.
And, and,
and that isn't a dispositive factor either,
and this court has made it clear
that while that describes the typical case
the legislature intended to go beyond the typical case
and there can still be retaliation
even when that's not the issue.
And here we have some hallmarks of retaliation.
We have a bitter intra family dispute
that's gone on for years and years
across three different States.
My client is 80 years old,
over 80 years old
and she's in fragile health.
She specifically withdrew
from the Minnesota litigation
because quote,
"her desire to withdraw
from this difficult family litigation
and eliminate a number of contentious issues
from this case".
She paid a significant sum to her son
to settle the original objections to the account
to avoid having to go to trial
against her mentally ill son
up here in Massachusetts.
And so I think,
these are precisely the types of factors
that this court has said
are part of the totality test
that should be considered
when dealing with,
you know, retaliatory claims.
I'll wrap up.
I know my,
you know, I'm happy to entertain more questions
but to the extent there aren't questions,
I'll, I'll wrap up quickly here.
And I'd like to end kind of on a practical note.
I think the cleanest way here
to reverse the probate court's decision
is to find that it aired as a matter of law
in finding colorability of the claims.
And I addressed it briefly
and it's, it's laid out in our papers.
I think the Probate court committee
clear error in this regard
and reversing on that basis
would represent a pretty straightforward application
of the augmented DuraCraft framework.
And it wouldn't otherwise disrupt
or change the existing landscape
with respect to the Anti-SLAPP Statute.
In addition, dismissal of the claims
on the basis of lack of subject matter jurisdiction
will advance the important objectives of judicial economy
and will provide important guidance to the Probate court
and litigants--
-: Haven't there been a -: Probate court jurisdiction.
-: If we mean that whenever an Anti-SLAPP cases
brought all this other stuff,
particularly this is a narrow Anti-SLAPP, right?
It's only,
only one part of the accounting duty is challenged, right?
Leone-Quick: That's right.
-: So, we've got this little Anti-SLAPP issue
on one part of it.
And now you want us to accelerate a decision
on all these other issues
that aren't even related to the Anti-SLAPP
that would ordinarily wait a whole trial.
Why would we do that?
Aren't we then just inviting everybody
who wants to skip the whole process
to file any SLAPP cases.
'Cause it's gonna basically jump the whole thing forward
into the appellate process.
-: Yeah, I mean,
I think that risk, sure.
I can't say that that risk doesn't exist.
My sense is though that that risk is minimal
just because, you know,
this court does have the discretion.
For example, on subject matter jurisdiction.
It does have the discretion
on whether it wants to take that question up or not.
It decided to do that in the Maxwell case,
admittedly reluctantly.
But in this case,
we think this is the same type of extraordinary circumstance
that existed in Maxwell
that would warrant
raising and assessing the subject matter jurisdiction issue.
The issue was fully briefed below
and before this court.
Discovery has been completed.
And so there's no more facts
that need to be discovered.
And even the Probate court's decision
on it's motion to dismiss
recognized that this theory that claims here,
the differential distribution claims theory.
He called it a novel legal theory
and admitted that it,
you know, essentially that it was unclear to him
whether those claims should move forward or not
but ultimately decided to let them go forward.
And so, there's that factor here,
that judicial economy when there's an important issue
that we know the lower court,
at least in this instance
and possibly in other instances
is struggling with
it makes sense to address it now.
-: Struggling with the fact that
whether it's an accounting issue or, you know,
or whether it's in your case
a tortious interference when it...
Isn't that gonna be...
You gotta really understand
all the underlying trust documents
and what's it,
what the fight is about here
to be able to answer that question.
It doesn't seem so,
it's not a straightforward issue of law, is it?
-: Well, in some ways,
I recognize it's complicated.
It doesn't seem that way to me
because I've been living this,
you know, for a long time in this case.
But here's maybe the best way to decomplicate it.
And that is,
these were discretionary trusts.
The protected person here wasn't entitled
to any distributions from them.
But he's alleged that the conservators took steps
to somehow interfere with the discretionary distributions
he would have otherwise received,
but for that interference.
And that, that's the heart of those claims.
And in so, in some ways it's very simple.
That's a tortious interference
with an expectancy interest type of claim.
When superior court recognized that in a,
in a very well reasoned decision hand of Dee Williams
which we cite in our papers.
That sounds in tort
that doesn't relate to conservatorship property.
It relates to a contingent or expectancy interest.
And the Commonwealth yes,
is recognized a tort claim
with respect to that type of fact pattern.
And so that's, that's where this case fits
and that's where this, this case should really live.
-: Okay.
-: Now finally, Oh-- -: Am sorry, yeah.
-: I do just wanna make clear for the record
that the conservator will be seeking her appellate fees
under the Anti-SLAPP Statute
should she prevail on this issue in this appeal.
And if the court wishes
the conservator will submit a letter
to memorialize this request pursuant to rule 22--
-: Is that request in the record?
That's why I'm making,
that's why I'm making it here on the record.
And like I said-- -: Oh, this is the record?
-: This is the record -: It's not your brief?
Okay. -: Not the brief,
but to the extent that this court
wants it in the written record,
I can submit a letter after this argument
under rule 22c-2 to make it formal.
-: Yeah, you might wanna do that.
-: Thank you, we will do that.
Thank you
and thank you for your time.
-: Okay.
Attorney Waters.
-: Morning.
Thank you
and good morning, chief justice Budd.
Good morning, Justices of the court.
My name is Charles Waters.
I represent the appellee William C. Ham.
Mr. Ham was the protected person
for 16 years in a guardianship.
And his parents were the guardians
over his person and assets.
For most of those years later on
they became only the conservators over his assets.
Now, despite the sizeable estate
and all the attorneys advising the conservators,
they didn't file an inventory
at the beginning of this case.
They didn't file a single accounting for 16 years.
That's the basis of this objection.
The protected person is now 51,
is happily married,
and the court has since ordered
restoration of his full capacity.
But he objects to this accounting because he,
to the extent that
he is attempting to learn what the actual assets were
for the 16 years
while the fiduciaries had exclusive control of it.
Now we're here today in this court
because the conservator is making
an unprecedented attempt to strike portions
of the protected person's objection
to their account
by using the Massachusetts anti SLAPP statute.
This has never happened before.
The statute has never been used like this in accounting,
not just in Massachusetts
but anywhere I can find.
And my client asks respectfully
that this court issue is simple decision
making sure that this type of weaponization
of the Anti-SLAPP Statute
doesn't happen again.
Put simply,
the statute-- -: Can I,
can I,
the, they're only attacking part of,
they're attacking the request for the accounting
based on the Minnesota lawsuit, right?
It's a narrow one, right?
They're, they're not trying to
question your ability to count all of it.
It's just that part of it, right?
Under Anti-SLAPP.
-: That's correct.
-: And there's precedent for that?
That there's precedent for,
you know, if you've got a multi-part thing and only claim
and part of it is based on a,
a piece of litigation,
that you could target that part for anti-SLAPP, right?
-: Well, in a,
in a civil case, yes.
But this isn't a civil case
and it's never been done in an accounting case.
-: And it looks,
so then that gets to the big issue.
So, your brother says,
look, the rules of civil procedure
cover this type of accounting.
It's, it's a litigate,
it's, it's a traditional litigation in just another form.
So why wouldn't we
treat this as a civil case or,
you know, a case.
-: For a number of reasons,
but there are remarkable differences
between a typical civil action
and an objection to a fiduciary accounting.
You can start with the language of the statute itself.
Does not encompass objections
to fiduciary accounts.
It instead speaks
in the language of typical civil litigation.
The special motion may be filed
in response to quote,
"civil claims, counterclaims or cross claims".
That closely tracks rules of civil procedure,
Rule 7(a).
It also says quote,
"that they can file the motion Core
within 60 days of service of the complaint".
The complaint is again,
language that tracks Rule 7(a).
Now, procedurally that makes a difference.
A typical civil action is filed through 7(a).
Plaintiff files it
and the case begins.
But that's not how it goes for an objection
to a fiduciary accounting.
Instead, you look at completely different statutes.
You look at General Laws Chapter 190B,
Section 1-401
and 5-418
as well as the Probate Court Rule 72.
Now this requires a multi-step process,
not just a one-step plaintiff files complaint
and you're off and running.
This requires a multi-step process
that includes the filing of an accounting,
the issuance of a service of all interested parties.
And then the filing of a written affidavit of objection.
Obviously, far different than the typical civil action case.
Now, the different procedures occurs
because the parties in a guardianship
have different relationships with themselves
and with the courts
than civil actions do.
So an objection can only occur
in the context of an existing action in the Probate court,
in which the court has already appointed a fiduciary.
And again, that's not like a typical civil action case
and that fiduciary-- -: So, can I just,
Mr. Waters, can I just pin you down?
So that means, your only objection to Anti-SLAPP
it's not in Probate court altogether,
it's just in this accounting process.
'Cause we've got a lot of frivolous litigation
in Probate court
where people Sue and cross sue,
and, you know, they Sue for suing.
But you're not saying that we're,
you're not asking for a ruling
that Anti-SLAPP doesn't apply in all probate proceedings,
just in this kind of accounting proceeding.
I'm just trying to clarify what you're--
-: Yeah, that's correct, your Honor.
And my, and my brother counsel mentioned
that there was one,
I think,
unpublished decision--
-: (indistinct) versus (indistinct)
-: That was not an accounting case.
So, I'm only talking about accounting cases
and that makes a difference, your Honor.
That makes a difference
because in an accounting case
there's an existing fiduciary
who's already agreed
to voluntarily
pav duties
both to the court
and to the protected person
to do what's in the protected person's best interest.
So, it's an existing fiduciary with those obligations
both to the court and to the protected person.
Now, in these accounting cases,
it's the court's obligation to oversee the estate
and the fiduciaries actions.
So the fiduciary reports to the court
and the fiducie also reports to the protected person.
And again, that's not like in a typical
civil action
or any other case in Probate court.
Now as a result,
the accounting itself constitutes
the fiduciaries efforts
to comply with her fiduciary obligations to the court
and to the protected person.
So the accounting itself,
is the effort
to comply with her existing fiduciary obligations.
Nothing like that exists in typical civil action cases.
Now, the differences in these relationships
compels different burdens of proof
in accounting cases than a typical civil action cases.
Now, you're all aware that traditionally
parties asserting the claim
has the burden of proof in civil action cases,
but that's not the same with these objections
to fiduciary accounting cases.
After the objection,
the fiduciary has the burden to establish
that the account is correct.
She also has the burden to establish
that she complied with her fiduciary obligations
in managing the assets
and that there was no reason for the court
to surcharge the estate.
So there is no obligation that the,
that the protected person has
after finally the,
the objection and the burden of proof
is entirely on the fiduciary.
Now, this is where Anti-SLAPP comes in.
If the anti SLAPP statute applied to objections
to fiduciary accountings,
it would fundamentally change the statutory scheme.
And instead of holding hearings,
in which the fiduciary has the burden
to justify her actions,
the court would instead
be holding hearings
to determine whether the objector
now with a burden under Anti-SLAPP has,
has satisfied that burden
under the augmented DuraCraft framework.
And if the objector doesn't carry the burden
then the court never considers
whether the fiduciary has carried the burden to establish
that she managed the estate in the best interest of the law.
-: But Counsel,
Isn't that how it's supposed to work in an Anti-SLAPP case?
Why should it not be applied in a probate situation if it,
if it's supported by the facts?
Because I think it changes these burdens
and it changes the statutory scheme
to implement these burdens.
And, and for example,
if like here, the fiduciary,
the conservatives,
breach their duties that culminated in a lawsuit
against the protected person.
That conservator would actually avoid
any review of that conduct.
Because that conduct led to this lawsuit.
The lawsuit would be considered petitioning activity
and so the objector,
if you follow this argument,
and I don't agree with it,
but if you follow it,
the objector ultimately
wouldn't be able to pursue his objection
because it would be knocked out by
the Anti-SLAPP special motion.
That cannot be what the legislature had in mind.
And we provided the court in our papers,
the legislative history.
And you see that the legislature,
legislative history in fact,
did not have that in mind.
Our brief shows that the Bill,
the HB 1520.
We went through Governor Welds veto of it,
the floor debates,
the house debates of the veto override
and the Senate debates.
And all of the legislative history shows that
there was concern about civil lawsuits
against ordinary citizens.
And the, the civil lawsuits bullied the ordinary citizens
and from which they needed protection.
There isn't a single reference in any floor debate
or any other piece of legislative history
showing that they were remotely concerned
about accounting proceedings in Probate court.
Now, with this in mind,
the court should narrowly
construe the Anti-SLAPP Statute
to achieve the legislative aim
that I've just mentioned
without prejudice of the non-moving party.
They've done this in the past,
and we've, we've walked through in our brief
the DuraCraft case,
the Cobra and versus Gaffs Friend case,
the Global NAP Inc case,
Keto Company and Blanchard,
in which the appellate courts have all rained in
the Anti-SLAPP Statute.
They've narrowed it
because the language of the statute
is,
is, is broad
and would trample on constitutional rights
if read without narrowing.
So the lessons from the cases that the SJC
and the Appeals Court of Massachusetts have issued
is that the Anti-SLAPP Statute language apply broadly
causes these constitutional problems.
And they don't achieve legislative intent of eliminating
the lawsuits filed primarily
to chill the petitioning activities.
And they encourage weaponization of the special motions.
And with all due respect,
I have a different perspective
of weaponization of this particular case.
I think this Anti-SLAPP special motion
was weaponization of the statute.
It allowed the,
the fiduciaries to put aside a trial that was imminent.
We were there for a pre-trial hearing
and these motions delayed that trial
and continue to delay that trial
probably up to about 18 months.
And it also
allowed
the
fiduciary
to bootstrap other appellate issues
that have no interlocutory right of appeal.
And in fact, that's what the fiduciary has done here also.
So--
-: Mr. Waters,
if we wrote this decision the way you want to,
we would simply decide that the Anti-SLAPP Statute
does not apply to the accounting procedures
and the rest of this belongs
back in the Probate court for resolution.
Is that what you're asking us to do?
-: I think that's exactly right, your Honor.
And it can be
as narrow as that. -: Are you asking us
anything else besides that?
if we reach your,
the conclusion on the first issue,
that's, that's all we need to decide today,
is that correct?
-: From our perspective, that's all, your Honor.
-: Mmmh, okay.
-: And that's what we'd be looking for.
There's another,
I think obviously--
-: If we did that by the way,
so if we reached that conclusion,
then a trial would,
then the Probate court would then try
the accounting
fight here
and all these issues would then
percolate up in the ordinary course.
Is that right?
-: That's exactly right, your Honor.
-: Okay.
-: My client asked the court
to issue a decision reflecting,
Judge Kafker, what you just stated,
to the extent that there's any analysis
relating to the Anti-SLAPP Statute itself.
I wanna just identify
one area that I think
also should bring the court back to this notion,
that this statute is not applicable
to these types of cases.
And that's the first stage.
That the first stage of the anti-SLAPP is,
is when the moving party has the obligation
to show that the claims
are solely based upon petitioning activity.
-: Well, at least one of the,
the one claim,
the one part of the accounting claim
seems to be based on the Minnesota litigation.
I understand the judge,
in a very sort of thoughtful way,
took a 40,000
feet high perspective on all of what's happened
for the past 16 years
and that may be the right thing to do.
But you could see why
litigating based on the Minnesota litigation
starts sounding like an Anti-SLAPP case, right?
-: Well, your Honor, the,
the allegations are,
are actually start long before the,
the Minnesota litigation.
The, the allegation is that there's a,
there was a pattern in a plan
that dates back to 2012.
So when these,
these fiduciaries were still in their role as conservatives,
they met with lawyers
and they started a plan
that was to keep the award here,
the protected person,
as a quote, unquote,
"legally incapacitated person"
because it would have beneficial impacts
on these other trusts.
That they could continue to
influence the trustees,
to diminish the disbursements
to the protected person throughout
that they would ultimately
throughout this time period
that they would ultimately
insist that the trustees cut off
the disbursements altogether.
And they, in the litigation,
they attempted to actually change the Corpus,
who would receive the percentages of the Corpus
of the trust
once the William H. Ham passed away.
So, the culminating act
was the filing of the lawsuit
which occurred after the,
after the fiduciaries
we're no longer servicing as fiduciaries.
But the whole plan leading up to that,
the five years leading up to that is,
is the fiduciary duty itself
that culminated with the lawsuit.
-: Any other questions?
Very good.
Thank you very much, Counsel.
We'll take our morning break
at this time.