Opinion
14-P-1484
02-03-2016
MARK J. BROOKS v. ALBERT G. NUGENT & others.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Mark J. Brooks, appeals from a judgment entered by a judge of the Superior Court in favor of the defendants on his three-count complaint alleging: (1) malicious prosecution against the town of Worthington (town) (count I); (2) malicious prosecution against Albert G. Nugent and Gary Lefebvre, in their official and individual capacities (count II); and (3) intentional infliction of emotional distress against the town (count III).
The town's motion to dismiss counts I and III of the complaint was allowed by a judge of the Superior Court (dismissal judge) on the basis of the Massachusetts Tort Claims Act (act). G. L. c. 258, § 10(c). The dismissal judge also concluded that the count II claims against Nugent and Lefebvre in their official capacities were barred by the act, but that the claims against Nugent and Lefebvre in their individual capacities could not be dismissed. A different judge subsequently allowed Nugent's motion for summary judgment on the basis that the claim against him was time-barred. G. L. c. 260, § 2A. She also allowed summary judgment in favor of Lefebvre on the basis that he "cannot be held liable for alleged tortious conduct -- such as malicious prosecution -- committed within the scope of his employment. G. L. c. 258, § 2." She entered judgment in favor of all the defendants, from which Brooks appealed. We affirm.
1. The dismissals. Brooks challenges the dismissal of count III and the portions of count II that sued Nugent and Lefebvre in their official capacities. We perceive no error. The act expressly exempts the town from suit as to "any claim arising out of an intentional tort." G. L. c. 258, § 10(c), inserted by St. 1978, c. 512, § 15. "[T]herefore a public employer cannot be sued for the intentionally tortious conduct of its employee." Barrows v. Wareham Fire Dist., 82 Mass. App. Ct. 623, 626 (2012). The claims asserted in count II against Nugent and Lefebvre in their official capacities for malicious prosecution were likewise properly dismissed. See Howcroft v. Peabody, 51 Mass. App. Ct. 573, 596 (2001) (intentional tort claims against individual defendants in their official capacities properly dismissed).
Brooks has not briefed a claim of error as to the dismissal of count I. We therefore consider any such argument waived. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
2. Summary judgment order. "We review the grant of summary judgment de novo, viewing the evidence contained in the summary judgment record [before us] in the light most favorable to the nonmoving party," in this case Brooks. Nova Assignments, Inc. v. Kunian, 77 Mass. App. Ct. 34, 35 (2010). We separately consider, as the judge did, Brooks's argument as to each individual defendant.
a. Nugent. "Except as otherwise provided, actions of tort . . . shall be commenced only within three years next after the cause of action accrues." G. L. c. 260, § 2A, as amended by St. 1973, c. 777, § 1. See Cuddy v. Sweeney, 7 Mass. App. Ct. 880, 881 (1979) (holding G. L. c. 260, § 2A, governs malicious prosecution and abuse of process actions). Here, Brooks's cause of action against Nugent for malicious prosecution accrued no later than January 16, 2008 -- the date Nugent's application for a criminal complaint against Brooks was dismissed. See Billings v. Commerce Ins. Co., 458 Mass. 194, 199 (2010) ("termination of the underlying action is the event that ripens a malicious prosecution claim and starts the clock on the statute of limitations"). Brooks filed his complaint more than three years later, on May 12, 2011; therefore, the judge properly found the claims against Nugent time-barred.
Nugent's application for a criminal complaint was dismissed upon his failure to appear for the hearing.
b. Lefebvre. Brooks contends that summary judgment in favor of Lefebvre was improper because the record presented a triable question whether the criminal complaint was initiated both with malice and without probable cause. We disagree.
"To assert a proper claim of malicious prosecution, the [plaintiff] must plead facts that demonstrate . . . damage[] because [the underlying criminal action was filed] with malice and without probable cause, and that the . . . action terminated in [the plaintiff's] favor." Beecy v. Pucciarelli, 387 Mass. 589, 593 (1982). While Brooks has demonstrated that the criminal proceedings terminated in his favor, see Cole v. Pulley, 18 Mass. App. Ct. 950, 951 (1984), he failed to plead facts sufficient to demonstrate that the criminal action was lacking in probable cause. Lincoln v. Shea, 361 Mass. 1, 4-5 (1972).
In the police report attached to Lefebvre's application for a criminal complaint, Lefebvre describes a confrontation in which Brooks repeatedly drove his "motor vehicle with a plow" toward Nugent's vehicle, causing Nugent to fear for his safety. Lefebvre also indicated that Brooks exited his motor vehicle, pulled down his pants, and exposed his buttocks to Nugent. Furthermore, Lefebvre attached to his application for a criminal complaint Nugent's written account of the incident, which was "sworn and subscribed to under the pains and penalties of perjury." On the basis of this information Lefebvre, as police sergeant, could apply for a criminal complaint for assault by means of a dangerous weapon and open and gross lewdness and lascivious behavior. Lefebvre need not possess firsthand knowledge of the facts constituting the offenses for which the complaint was sought. Mass.R.Crim.P. 3(g)(1), as appearing in 442 Mass. 1502 (2004).
"The relevant determination in a malicious prosecution claim is whether there was also probable cause to 'believe the criminal proceeding could succeed and, hence, should be commenced.'" Gutierrez v. Massachusetts Bay Transp. Authy., 437 Mass. 396, 406 (2002), quoting from Mejia v. City of N.Y., 119 F. Supp. 2d 232, 254 (E.D.N.Y. 2000). Here, Brooks simply alleged that on the day Nugent's application for a criminal complaint was dismissed, "Lefebvre filed the exact same complaint against [Brooks] on [Nugent's] behalf." The allegation that Lefebvre "instituted or caused to be instituted, criminal actions against [Brooks], all of which were favorably terminated in favor of [Brooks]" was not particularized, and is insufficient to demonstrate that Lefebvre filed an application for a criminal complaint with malice and without probable cause. Beecy v. Pucciarelli, 387 Mass. at 593. To the extent Brooks asserts that his ultimate acquittal of the criminal charges was sufficient, we disagree. The absence of probable cause "must be affirmatively proved, and may not be inferred from the existence of malice . . . or from the fact of acquittal or anything else." Higgins v. Pratt, 316 Mass. 700, 709 (1944). Accordingly, we discern no error in the judge's granting of summary judgment in Lefebvre's favor.
To the extent that we have not addressed Brooks's other contentions, they "have not been overlooked. [Rather, w]e find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
Judgment affirmed.
By the Court (Berry, Meade & Maldonado, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 3, 2016.