MARK KON & Others v. BETH FISHMAN & Others; CRAIG RODGERS, Defendant-In-Counterclaim.

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

24-P-1125

MARK KON1 & others2

vs.

BETH FISHMAN & others;3 CRAIG RODGERS, defendant-in-counterclaim.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiffs and the defendant-in-counterclaim appeal

from a Superior Court judge's order denying their respective

motions to dismiss the defendants' counterclaims under the anti-

SLAPP statute, G. L. c. 231, § 59H. The judge concluded that

the moving parties had not met their burden of showing that the

counterclaims were based on the moving parties' petitioning

activities alone and had no substantial basis other than or in

1Individually and as a member of the Cambridge Tower
Corporation and Cambridge Tower Small Owners' Association, LLC.

2Rodolfo Ruben Rosales and David Hermann, individually and
as members of the Cambridge Tower Corporation and Cambridge
Tower Small Owners' Association, LLC.

3Margaret Mishara; Jesse Zorfas; Palm Realty, LLC; Alacrity
LLC; and Alacrity Limited Partnership.
addition to their petitioning activities. We agree and thus

affirm.

Background. Cambridge Tower Corporation (CTC) is a for-

profit corporation that owns and operates Cambridge Tower, a

mixed-use building containing eighty-eight residential units.

The plaintiffs, Mark Kon, Rodolfo Ruben Rosales, and David

Hermann, and the defendant-in-counterclaim, Craig Rodgers, are

minority shareholders of CTC.4 The individual defendants, Beth

Fishman, Margaret Mishara, and Jesse Zorfas, are CTC's directors

and collectively own and control fifty-two percent of CTC's

shares.5

In July 2021 the defendants scheduled a special meeting of

the shareholders to vote on a proposed amendment to CTC's

bylaws, which would have allowed non-natural persons to own

shares in CTC. According to the minority shareholders, the

defendants called for the vote because they were planning to

sell their shares in CTC to a real estate investment company

(buyer) for more than $20 million and the buyer was insisting on

4 We will refer to the plaintiffs and Rodgers together as
"minority shareholders," except where it is necessary to
differentiate among them.

5 The other defendants are corporate entities that hold the
individual defendants' shares in CTC. For simplicity we will
use the term "defendants" to refer interchangeably to the
individual defendants and to the named defendants collectively.

2
the amendment as a condition of the sale. The minority

shareholders assert that not only did the defendants conceal

this from the other shareholders, they actively tried to mislead

the other shareholders into believing that the amendment was in

everyone's interest. The defendants for their part acknowledge

that they sought the amendment to "assuage" the buyer, but

characterize the amendment as "ministerial." In particular,

they assert that the amendment would have merely resolved a

discrepancy in the corporate documents, as CTC's restated

articles of organization had been amended long ago to authorize

corporate ownership of shares.

On July 23, 2021, a few days before the scheduled meeting,

the plaintiffs brought the underlying lawsuit claiming, among

other things, that the defendants breached their fiduciary

duties to the plaintiffs and CTC. The complaint contains

numerous allegations of wrongdoing by the defendants, including

that they improperly called the meeting to force a vote on the

proposed amendment, illegally leveraged their controlling

interest in CTC to remove the plaintiffs from the board of

directors, and delayed necessary repairs to the Cambridge Tower

parking garage.

Over two years after the plaintiffs filed their complaint,

the defendants brought counterclaims against them and Rodgers

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for breach of fiduciary duty,6 tortious interference with

prospective contractual relations, and abuse of process. The

plaintiffs and Rodgers filed separate motions to dismiss the

counterclaims under the anti-SLAPP statute, which the judge

denied after hearings on each motion. Details regarding the

nature of the counterclaims are reserved for later discussion.

Discussion. Resolution of a special motion to dismiss

under the anti-SLAPP statute proceeds in two stages. At stage

one, the moving party must "make a threshold showing 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). If the

moving party meets this burden, the nonmoving party must show at

stage two that the moving party's petitioning activity "was

devoid of any reasonable factual support or any arguable basis

in law" and caused the nonmoving party "actual injury." Bristol

Asphalt Co., supra at 557, quoting G. L. c. 231, § 59H. Our

6 This claim was brought as a cross claim on behalf of CTC,
but the parties refer to it as a counterclaim. For simplicity
we will do the same.

4
review of a judge's denial of an anti-SLAPP motion is de novo.

See Bristol Asphalt Co., supra at 560.

Here, the plaintiffs argue that the counterclaims are based

solely on their acts of filing and prosecuting this lawsuit,

which are indisputably petitioning activities. See 477 Harrison

Ave., LLC v. JACE Boston, LLC, 483 Mass. 514, 520 (2019)

("Commencement of litigation is quintessential petitioning

activity"). In his brief, Rodgers similarly argues that the

counterclaims are based solely on his petitioning activity of

assisting with prosecution of the lawsuit. In evaluating these

arguments, we must assess the counterclaims separately to

determine whether each count has a substantial basis in conduct

that is not petitioning.7 See Bristol Asphalt Co., 493 Mass. at

551, 553-554. If the count has a substantial nonpetitioning

basis, it will survive dismissal even if a portion of it "could

be construed as being based on . . . petitioning alone." Id. at

554.

1. Breach of fiduciary duty. One of the central

allegations supporting the defendants' claim of breach of

fiduciary duty is that the minority shareholders interfered with

As the parties appear to agree, the counterclaims for
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civil conspiracy, declaratory judgment, and violation of G. L.
c. 231, § 6F, are derivative of the counterclaims sounding in
tort. We therefore do not address them separately.

5
the defendants' efforts to secure financing for the repairs to

the Cambridge Tower parking garage. Specifically, the

defendants allege that Cambridge Savings Bank (bank) verbally

committed to enter into a loan agreement; the bank agreed to

close on the condition that the minority shareholders sign a

consent form authorizing the defendants to enter into the loan

agreement; instead of simply signing the form, the minority

shareholders "heavily edited it and added self-serving language"

parroting their allegations in this lawsuit; and, as a result,

the bank declined to provide the loan. According to the

counterclaim, the minority shareholders' motive was "to gain

personal advantage -- increased influence in CTC's corporate

governance and change of the [c]orporation's status."

This alleged conduct is distinct from the filing and

prosecution of the lawsuit and is not petitioning activity. In

arguing otherwise, the plaintiffs characterize their conduct as

innocent, asserting that the dispute about the consent form

"took place within the four corners of the lawsuit" because

their edits to the form were intended merely to ensure they did

not abandon or waive their claims. But the motive for the

plaintiffs' conduct is a disputed factual issue that is not

properly resolved at this stage of the analysis. Rather, the

question at this stage is "only the nature of the conduct

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alleged . . . (is it, or is it not, protected petitioning

activity) and not the merits of the case." Burley v. Comets

Community Youth Ctr., Inc., 75 Mass. App. Ct. 818, 822 (2009).

See Bristol Asphalt Co., 493 Mass. at 556-557, 561 n.21. Here,

the nature of the conduct alleged is that the minority

shareholders obstructed the financing in bad faith to obtain the

corporate governance changes they desired -- this constitutes a

substantial nonpetitioning basis for the counterclaim. See

Cadle Co. v. Schlichtmann, 448 Mass. 242, 250, 254 (2007)

(statements published by defendants on website in hopes of

"gaining a tactical advantage in an ongoing legal proceeding"

not petitioning activity, notwithstanding "defendants' self-

serving characterization of the Web site as a 'public forum'").

Rodgers raises a different argument, which is that the

allegations described above could not provide a basis for a

breach of fiduciary duty claim against him because only the

plaintiffs were asked to sign the consent form. But the

counterclaim alleges that Rodgers was "a key player" in the

"efforts to thwart bank financing for repairs" and that he and

the plaintiffs "acted in concert and in furtherance of the

common design of breaching their fiduciary duty to CTC to block

financing for" the repairs. As further alleged, Rodgers's

involvement is evidenced by his financing of the lawsuit and his

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statement to Zorfas that "any cooperation in obtaining financing

for the . . . repairs would be contingent upon a resolution of

the pending litigation on terms favorable to" the minority

shareholders. We are unpersuaded by Rodgers's argument that

this statement was petitioning activity because it was merely

communicating a settlement offer. Focusing on the conduct

complained of, see Burley, 75 Mass. App. Ct. at 822, the

allegation is that Rodgers's statement was part of a scheme to

obstruct the financing to gain leverage for the demands raised

in the lawsuit. Thus, as pleaded, the counterclaim against

Rodgers has a substantial nonpetitioning basis.

2. Tortious interference with prospective contractual

relations. This counterclaim alleges that the minority

shareholders engaged in a "misinformation campaign" against the

defendants to discourage the buyer and other interested parties

from purchasing the defendants' shares in CTC. As part of the

campaign, the minority shareholders allegedly sent false and

defamatory e-mail messages to other shareholders to mislead them

about the impact of the proposed amendment to the bylaws and the

impact of the impending sale of the defendants' shares. The

campaign allegedly culminated in the filing of this lawsuit and

"accomplished [its] ultimate purpose" -- causing the buyer "to

back out of the transaction which was on the cusp of closing."

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This alleged conduct is not petitioning activity, as it

mostly predated the filing of the lawsuit and was geared not

toward reaching the government but toward convincing the buyer

to abandon the deal. The plaintiffs' sole argument to the

contrary is that neither the counterclaim nor the evidence

submitted below suggests that any of the events predating the

lawsuit "caused the deal to fall through." But again, at this

stage all we must decide is whether the conduct complained of

has a substantial nonpetitioning basis. See Burley, 75 Mass.

App. Ct. at 822. Disputed factual issues such as causation are

appropriately left to be resolved in the course of the

litigation. See Bristol Asphalt Co., 493 Mass. at 556-557, 561

n.21; Burley, supra.

Rodgers adds that the counterclaim should be dismissed as

to him because it does not allege that he personally made any of

the communications to the other shareholders. We are

unpersuaded because the counterclaim alleges that Rodgers and

the plaintiffs "acted in concert and in furtherance of the

common design of tortiously interfering with a prospective

contractual relationship to stop the sale." If this were not

enough, the allegation of Rodgers's involvement is supported by

an affidavit from Ian Gillespie, the buyer's principal, in which

he avers that he spoke to Rodgers in August 2021 about the sale

9
and Rodgers "insisted that all of CTC's shareholders have equal

voting power, regardless of the number of shares that they own,"

and suggested that the buyer "would never be able to elect CTC's

board of directors" even if it had "a majority interest in the

corporation."8 This alleged interference with the sale does not

constitute petitioning activity.

3. Abuse of process. An "abuse of process claim will

always be, at least in part, based on a special movant's

petitioning activities," namely, the invocation of process. 477

Harrison Ave., LLC v. JACE Boston, LLC, 477 Mass. 162, 169

(2017). But this does not mean that no abuse of process claim

can survive a motion to dismiss under the anti-SLAPP statute.

For example, "a cognizable claim can . . . involve a subsequent

misuse of such process . . . that is not itself petitioning

activity," such as an "attempt to use an invocation of process

to extort [the] opposing party." Id. To withstand dismissal,

the claim must allege "conduct separate and independent from the

8 Contrary to Rodgers's contention, it is well established
that affidavits can be considered at stage one of the anti-SLAPP
analysis. See Bristol Asphalt Co., 493 Mass. at 555, quoting
Duracraft Corp., 427 Mass. at 167 (whether moving party has made
threshold showing determined by "the pleadings and affidavits").
We do not agree that footnote 21 of Bristol Asphalt Co. limits
this principle. That footnote concerned the standard of review
that applies on appeal and did not put any limitations on a
judge's authority to consider affidavits at stage one. See
Bristol Asphalt Co., supra at 561 n.21.

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petitioning activity"; "allegations of an ulterior motive

unsupported by conduct independent of the petitioning activity"

will not suffice. Keystone Freight Corp. v. Bartlett Consol.,

Inc., 77 Mass. App. Ct. 304, 314 (2010).

Here, the counterclaim fairly alleges that the lawsuit was

part of a broader scheme by the minority shareholders to extort

the defendants to agree to new corporate governance terms. As

in Keystone Freight Corp., 77 Mass. App. Ct. at 315, the

counterclaim alleges wrongful conduct that occurred "before,

after, and separate" from the invocation of process. In

particular, the counterclaim alleges that the minority

shareholders' scheme included spreading misinformation to

mislead other shareholders, communicating with the buyer to

interfere with the sale, and conditioning their cooperation in

obtaining financing on the defendants' capitulating to

unreasonable settlement demands.

In Keystone Freight Corp., 77 Mass. App. Ct. at 315, we

held that the plaintiff's abuse of process claim had a

substantial basis in addition to the defendant's filing of a

collection action, where the plaintiff alleged that the

defendant engaged in fraudulent billing practices before filing

the action, and then after filing the action made a settlement

offer that was "arguably consistent with an attempt . . . to

11
coerce payment of its inflated bill." This case is analogous to

Keystone Freight Corp. and unlike Hidalgo v. Watch City Constr.

Corp., 105 Mass. App. Ct. 148 (2024), on which Rodgers relies.

In Hidalgo, supra at 149, we held that the defendant's

counterclaim for abuse of process was based solely on the

plaintiff's filing of a prior lawsuit, and the defendant's

allegations that the plaintiff "had an improper subjective

motive for filing [the] lawsuit" did not affect the analysis

because motive for filing suit is not separately actionable, id.

at 151. In contrast, here, the defendants do not rely only on

allegations of ulterior motive but, as in Keystone Freight

Corp., supra at 314, allege "conduct separate and independent

from the" filing of the lawsuit. That separate conduct

constitutes a substantial basis other than or in addition to the

minority shareholders' petitioning activities.

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Conclusion. That part of the order dated July 19, 2024,

denying the plaintiffs' and Rodgers's special motions to dismiss

under the anti-SLAPP statute is affirmed.9

So ordered.

By the Court (Shin, Grant &
Hershfang, JJ.10),

Clerk

Entered: November 21, 2025.

9 The plaintiffs' and Rodgers's requests for appellate
attorney's fees are denied.

10 The panelists are listed in order of seniority.

13