Civil practice – SLAPP – Real estate commission

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Where a plaintiff claiming to be owed a $79,687.50 commission from the sale of real property has filed a special motion to dismiss the defendants’ counterclaims, that motion should be denied in part, as the plaintiff has not shown that the counterclaims for breach of the covenant of good faith and fair dealing and violation of G.L.c. 93A are solely based on the plaintiff’s petitioning activities.

“The plaintiff, NRT New England, LLC d/b/a Coldwell Banker Realty (‘Coldwell’), brought this breach of contract action against the defendants, Peter Holland and Laura Holland (collectively, the ‘Hollands’), for a $79,687.50 commission Coldwell claims the Hollands owe it from the sale of a property in Wellesley. The Hollands have filed counterclaims against Coldwell for abuse of process (Count I); breach of the implied covenant of good faith and fair dealing (Count II); tortious interference with contractual relations (Count III); and violation of G.L.c. 93A (Count IV). Now before the court is Coldwell’s Special Motion to Dismiss Defendants’ Counterclaims under G.L.c. 231, §59H, the anti-SLAPP statute, or, in the alternative Motion to Dismiss under Mass. R. Civ. P. 12(b)(6). For the reasons that follow, Coldwell’s motion is allowed in part and denied in part. …

“On July 8, 2020, the Hollands entered into an Exclusive Listing Agreement (‘Agreement’) with Coldwell under which Coldwell would sell 100 Brook Street in Wellesley (the ‘Property’) for a commission of 4.375% of the gross sale price of the Property. …

“The Hollands brought counterclaims for abuse of process, breach of the implied covenant of good faith and fair dealing, tortious interference with contractual relations, and violation of G.L.c. 93А. …

“A party bringing a special motion to dismiss under G.L.c. 231, §59H must make a threshold showing that the claims against it are based on its petitioning activities alone and have no substantial basis other than or in addition to the petitioning activities. …

“The Hollands’ claims for abuse of process and tortious interference with contractual relations are based upon Coldwell’s petitioning activities alone, that is, Coldwell’s filing of its lawsuit and obtaining an attachment on the Hollands’ real estate based on its likelihood of success on the merits of its underlying claims. …The burden thus shifts to the Hollands to show that Coldwell’s exercise of its right to petition was devoid of any reasonable factual support or arguable basis in law. The Hollands have not done so.

“As the underlying claims upon which the lawsuit and attachment are based, that is breach of contract and quantum meruit, have not been resolved, the court cannot conclude at this stage that those claims lack any reasonable factual support or any arguable basis in law. … Thus, the court allows the special motion to dismiss as to Counterclaim Counts I and III. The dismissal of these counterclaims ‘is not as to the merits of the claims at this juncture, and is accordingly without prejudice.’ …

“Coldwell has not shown that the Hollands’ claims for breach of the covenant of good faith and fair dealing and violation of G.L.c. 93A are solely based on its petitioning activities. Instead, these claims are based on Coldwell’s conduct with respect to the Agreement. Thus, the court denies Coldwell’s special motion to dismiss as to these claims. The court also denies Coldwell’s motion to dismiss for failure to state a claim upon which relief can be granted as to these claims. The allegations in the counterclaim complaint, if true, plausibly suggest an entitlement to relief against Coldwell for these claims. …

“For the reasons discussed, Coldwell’s Special Motion to Dismiss Defendants’ Counterclaims under G.L.c. 231, §59H or, in the alternative Motion to Dismiss under Mass. R. Civ. P. 12(b)(6) is allowed in part and denied in part. The motion is allowed as to Counts I and III, under G.L.c. 231, §59H, and denied otherwise. Counts I and III are dismissed without prejudice. Coldwell is entitled to recover reasonable legal fees and costs that it ‘incurred for the special motion and any related discovery matters,’ G.L.c. 231, §59H, as to Counts I and III. Coldwell shall submit to the court an affidavit outlining its reasonable attorneys’ fees and costs related to Counts I and III within twenty days after this order is docketed.”

NRT New England, LLC v. Holland, et al. (Lawyers Weekly No. 12-059-25) (6 pages) (Pasquale, J.) (Plymouth Superior Court) (Civil Action No. 2583CV00429) (Dec. 17, 2025).

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