O  T  H  E  R      D  E  C  I  S  I  O  N  S  :

North American Expositions Company, LP v. Corcoran, 20 Mass. L. Rep. 189,
2005 Mass. Super. LEXIS 352   (Nov. 14, 2005) (van Gestel, J.).

This is the Court’s second opinion in this matter. In July 2005, the Court denied Plaintiff’s request for an injunction to prevent the owners and operators of the Bayside Expo Center from interfering with its effort to organize “Gate Shows” at the new Convention Center. The Court in essence held that Bayside held a statutory veto to prevent Gate Shows from being produced or sponsored at the Convention Center. Plaintiff alleged that in an effort to prevent the shows from being sponsored at the Convention Center, Bayside threatened a lawsuit against the South Boston Community Development Foundation and also advocated its position to the Legislature.
This opinion concerned Bayside’s special motion to dismiss, under the anti-SLAPP statute

(G.L. c. 59H), Plaintiff’s claim for interference with contractual relations (and related claims). The anti-SLAPP statute is designed to resolve quickly

lawsuits commenced primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Court held that Bayside’s activities before the Foundation and the Legislature constituted “petitioning activities” under the anti-SLAPP statute. The Court further held that Bayside had met its burden of establishing that Plaintiff’s claims were based on Bayside’s petitioning activities alone and had no substantial basis other than the petitioning activities. The burden thus shifted to Plaintiff to demonstrate that Bayside’s petitioning activities were devoid of any reasonable factual support or any factual basis in law and caused injury to the Plaintiff. The Court held that Plaintiff did not meet its burden because, as it noted at the injunction stage, Bayside effectively had a right to veto the sponsorship of a gate show at the Convention Center. Its petitioning activities were validly exercised. 

King v. Conant, 20 Mass. L. Rep. 223, 2005 Mass. Super. LEXIS 555
(Nov. 14, 2005) (van Gestel, J.).

This opinion sets forth the Court’s findings on claims against a psychologist, Robert Sayre, relating to fees he charged to Hilda Anderson, whom Sayre treated over a long period of time for a number of mental illnesses. Sayre also was employed at various times by the Ayer-Anderson Foundation, a non-profit organization at which Ms. Anderson worked. From 1994 through early 2003, Sayre billed Ms. Anderson in excess of $600,000. All of the bills were sent to and paid by Ms. Anderson’s attorney (Conant) and contained no explanation whatsoever as to what treatment was being provided. Plaintiff’s claims against Conant were settled before trial. The invoices simply listed dates, names and number of hours. There were nearly 600 entries of four hour sessions designated “Hilda, Paul and Frank.” Paul was Hilda’s husband and Frank was an astronomer who came to the Foundation twice a week and ran courses in astronomy. The Court found that none of these sessions related to services provided to Ms. Anderson. Despite this inappropriate billing, the jury found, and the Court agreed, that Sayre inflicted no physical or emotional harm on his patient.

There were four claims tried to the Court: unjust enrichment, declaratory judgment, breach of fiduciary duty and violation of Chapter 93A. The Court held that Sayre breached his fiduciary duty as a psychotherapist by billing Ms. Anderson for services he did not render. The Court held that the claim of unjust enrichment was in effect an equitable remedy to which Plaintiff was entitled as a result of Sayre’s breach of fiduciary duty. As for the 93A claim, the Court found that the demand letter was satisfactory in its explication of the claims presented. The Court also held that but for the billing of fictitious sessions, Sayre would not be

liable under 93A because his treatment did not harm Ms. Anderson. To the contrary, the Court found that Ms. Anderson clearly benefited from Sayre’s treatment. The Court, however, held that Sayre violated 93A by misrepresenting or exploiting his fees. The Court acknowledged that there is no case law involving whether the fee practices of a psychologist are subject to 93A. Relying on a 1984 SJC decision in which the Court held that a 93A claim could be maintained against an attorney for pursuing an unlawful contingent fee agreement, the Court concluded that there is “little substantive difference between an attorney pursuing an illegal fee agreement . . . and a psychologist misrepresenting the amount of his fees or exploiting his position with his patient regarding his fees, which is made illegal by the incorporation of the Ethical Principles of Psychologists and Code of Conduct.”

The Court also refused to dismiss the 93A claim on the basis of the statute of limitations, notwithstanding that some of the services were rendered well in excess of four years prior to commencement of the action. The Court noted that the discovery rule applies to 93A claims and that Ms. Anderson did not discover her monetary loss until uncovering her attorney’s own fiduciary breaches in paying the bills without question. The Court reasoned: “In a battle between a psychologist with significant fiduciary duties to his patient, who violated [ethical rules] . . ., and a patient with the kind of psychological impairments of Mrs. Anderson, this Court sides with the patient.” The Court, however, declined to award multiple damages, on the bases that Ms. Anderson did not suffer any physical or emotional harm and that her economic harm was compounded by her attorney (Conant).