Opinion
19-P-1154
07-30-2020
R.C. & another v. R.K. & others.
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).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendants appeal from an amended judgment against them, resulting from a jury trial, on claims for trespass, assault, abuse of process, and invasion of privacy. On appeal, the defendants challenge the admission and exclusion of certain evidence; the judge's failure to take judicial notice of the law of adverse possession; the sufficiency of evidence; the correctness of the instructions regarding invasion of privacy; the judge's denial of their posttrial motion seeking remittitur or a new trial; the judge's denial of their special motion to dismiss certain claims pursuant to G. L. c. 231, § 59H (anti- SLAPP statute); and the judge's imposition of a permanent injunction against the defendants. We affirm.
Background. We summarize the facts as the jury could have found them, reserving certain facts for our later discussion. The plaintiffs, R.C. and D.C., own a house in Hingham, Massachusetts (C. property), which is adjacent to a residence owned by defendant R.K. (K. property). R.K. and her now-deceased husband had bought the K. property in 1986. At some point thereafter, the K.s created a gravel driveway that encroached on the C. property. The C.s, who bought their property in 2000, knew that the driveway encroached on their land and discussed the matter with R.K. and her late husband. The C.s permitted the K.s to continue to use the driveway to park recreational vehicles. After R.K.'s husband died, she moved away and her daughter and son-in-law, E.C. and J.C., moved into the K. property, which R.K. continued to own.
In July 2014, the C.s began to improve their property, including the area of the gravel driveway. In response, R.K. sent a notice of trespass letter and subsequently commenced an adverse possession action against the C.s. The complaint falsely alleged continuous adverse use of the area of the gravel driveway over a twenty-year period beginning in 1978, years before the K.s bought the property. A jury found against R.K. in 2017, and she did not appeal.
On July 5, 2015, while the adverse possession action was pending, R.K. claimed that her car had been scratched; she and her son-in-law went to the C.s' home to confront them about it. The evidence permitted the inference that R.K. may have damaged the car herself with the intent of falsely accusing the C.s. In any event, R.K. and J.C. came uninvited onto the C. property and accused R.C. of damaging R.K.'s car. When R.C. denied doing so, J.C. came back onto the C. property and "got into [R.C.'s] face," trying to draw R.C. into a fight on the street. R.C. did not respond, and remained on his own property. A photograph taken by R.K. confirmed that R.C. walked away from the confrontation with his hands in his pockets. Nonetheless, R.K. called the Hingham police, told them that her late husband had been a Hingham firefighter, and then falsely accused R.C. of damaging her car. The police questioned neighbors, and wrote a report.
The following morning R.K. filed a c. 258E complaint against R.C. After an ex parte hearing, a judge declined to issue a protection order. The next day, R.K.'s attorney sent an e-mail (Exhibit 23) to the attorney defending the C.s in the adverse possession action. The contents of this e-mail, as well as subsequent ones, could be read to mean that R.K. wanted to leverage the c. 258E complaint to obtain an advantageous resolution of the adverse possession action, which she otherwise knew was very weak given the inaccurate complaint in that case. After a full evidentiary hearing at which all parties testified, giving the judge a chance to assess credibility and weigh the evidence, the c. 258E complaint was denied.
Thereafter, a surveillance camera was installed on the K. property that was aimed at the C. property, including the area where the C. children played. The C.s spent $5,000 on new landscaping to try to reclaim their privacy. Nonetheless, the presence of the camera caused them to limit the use of their backyard and caused D.C. to be fearful and nervous. The defendants replaced the camera shortly before trial, installing a new one that was aimed differently. They claimed footage from the previous camera did not exist, and attempted to pass off footage from the new one as that from the earlier, differently-aimed one.
The C.s filed this action in August 2015, asserting claims of assault, trespass, invasion of privacy, fraud, malicious prosecution, and abuse of process. The fraud and malicious prosecution claims were dismissed. A jury found in favor of the plaintiffs on the remaining claims, and awarded $275,000 in damages. This appeal followed.
1. Evidentiary matters. We review the defendants' various claims of evidentiary error for abuse of discretion. N.E. Physical Therapy Plus, Inc. v. Liberty Mut. Ins. Co., 466 Mass. 358, 363 (2013). "An appellate court's review of a trial judge's decision for abuse of discretion must give great deference to the judge's exercise of discretion; it is plainly not an abuse of discretion simply because a reviewing court would have reached a different result." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). "[A] judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made 'a clear error of judgment in weighing' the factors relevant to the decision . . . such that the decision falls outside the range of reasonable alternatives" (citation omitted). Id.
a. Exhibit 23 and police report. The defendants contend that Exhibit 23 was inadmissible because it was (1) irrelevant; (2) an expression of willingness to compromise; (3) not complete without the attached police report; (4) admitted without adequate foundation; (5) a pretrial litigation communication from counsel upon which liability of the client could not be predicated; and (6) admitted without a limiting instruction. Many of these arguments are waived, having not been properly preserved below. See CBI Partners Ltd. Partnership v. Chatham, 41 Mass. App. Ct. 923, 926 n.6 (1996) ("Having stated the specific grounds for its objection below, the [defendants] may not urge other grounds on appeal"). We accordingly address here only those that were properly preserved.
On direct examination, D.C. testified that she learned a complaint had been taken against R.C. from an e-mail that had been sent to their lawyer in the adverse possession case. After this testimony, counsel for the C.s offered the e-mail (which ultimately became Exhibit 23) into evidence. The defendants objected on three grounds: it was irrelevant, incomplete, and a communication between counsel. During the sidebar discussion, the judge noted that the police report that had been attached to the e-mail was inadmissible, and that R.K. had been copied on the e-mail. The judge further noted that the e-mail was not being offered for the truth of the matters asserted, but for D.C.'s state of mind. The judge noted that defense counsel did not seek a contemporaneous limiting instruction, and the judge suggested giving one during the final charge (which defendants did not later request, nor did they object to its absence from the charge). On this basis, the e-mail was introduced as Exhibit 23.
The defendants argue that the e-mail was irrelevant because it was not in fact an attempt to use the pending c. 258E case as leverage for a favorable resolution of the adverse possession case. But the proper interpretation of Exhibit 23 was a question of fact, not one of admissibility. Moreover, there is no doubt that Exhibit 23 was relevant to the issue for which it was admitted, namely when and how D.C. became aware of the c. 258E case. See Mass. G. Evid. § 401 (2019). The fact that it may or may not (depending on its interpretation) be relevant to another issue did not make it inadmissible.
The defendants also contend that, as a pretrial communication between counsel, Exhibit 23 is protected by the litigation privilege and cannot be the basis of liability for the attorney or his client. "The litigation privilege generally precludes civil liability based on 'statements by a party, counsel or witness in the institution of, or during the course of, a judicial proceeding' . . ." (citation omitted). Gillette Co. v. Provost, 91 Mass. App. Ct. 133, 140 (2017). Here, however, the plaintiffs were not using the statements in Exhibit 23 themselves as a basis for liability, but were using them instead as evidence of "abuse of process -- a claim plainly not subject to dismissal on the ground of any privilege." Id. "[S]tatements preliminary to litigation are only privileged if they 'relate[] to a proceeding [that] is contemplated in good faith and [that] is under serious consideration.'" Id. at 142, quoting Sriberg v. Raymond, 370 Mass. 105, 108-109 (1976).
The third preserved basis for objecting to Exhibit 23 was completeness because it was admitted without the police report it transmitted. However, we see no error in the judge's conclusion that the police report was inadmissible. To begin with, it is not -- as the defendants contend -- a matter about which the judge could properly take judicial notice. Although a judge "may take judicial notice of the docket entries and papers filed in [the c. 258E] case[], [the judge] may not take judicial notice of facts or evidence brought out in th[at] separate action[]." Home Depot v. Kardas, 81 Mass. App. Ct. 27, 28 (2011). Therefore, the fact that the police report had been introduced in the c. 258E case did not mean that the judge was required to take judicial notice of its contents in this one. Nor did the judge abuse his discretion in refusing to admit the police report as a business record. Although police reports may, in certain circumstances, be admissible as business records under G. L. c. 23, § 78, "statements in such a report made by bystanders may be inadmissible as 'second level' or 'totem-pole' hearsay. . . . Moreover, there is authority that police reports should ordinarily be excluded when offered by the party at whose instance they were made." Julian v. Randazzo, 380 Mass. 391, 394 (1980).
b. Other trial issues. The defendants argue that plaintiffs' counsel should not have been permitted to cross-examine a witness about whether defendant E.C. had previously told the truth. Whatever the merits of this argument, it is waived because no objection was lodged below. Handrahan v. Red Roof Inns, Inc., 43 Mass. App. Ct. 13, 22 (1997).
Also waived are the defendants' arguments that the judge should have instructed the jury on the law of adverse possession and on nominal damages, and that she incorrectly instructed them on invasion of privacy. Objections to the instructions on these bases were not made below. See Karen Constr. Co. v. Lizotte, 396 Mass. 143, 149 (1985) ("When no objection is taken to the failure of a judge to give an instruction, and the attention of the judge is not called to the matter, such failure cannot be raised on appeal").
Two additional arguments fail because they are not supported by the record. Specifically, the record belies the defendants' argument that the judge failed to take judicial notice of the law of adverse possession, two statutes, and prior rulings concerning the amended complaint. Similarly, the defendants' argument that the plaintiffs argued spoliation, a line of argument disallowed by the trial judge, is unsupported by the record. The judge ruled that "plaintiffs are not precluded from questioning witnesses and defendants regarding the installation and removal of camera equipment and arguing reasonable inferences there from."
2. Sufficiency of evidence. The defendants argue that there was insufficient evidence to prove by a preponderance of the evidence the plaintiffs' claims of invasion of privacy, abuse of process, assault, and trespass. The defendants have a heavy burden on appeal as "[a]n appellate court will not set aside a jury verdict on any material fact found by a jury unless the jury verdict or fact has no rational basis in the evidence." Brewster Wallcovering Co. v. Blue Mountain Wallcoverings, Inc., 68 Mass. App. Ct. 582, 594-595 (2007). "A jury verdict will be upheld so long as anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff[s]" (citation and quotation omitted). Id. at 595. For these purposes, we view the evidence in the light most favorable to the plaintiffs.
a. Invasion of privacy. "To sustain a claim for invasion of privacy, the invasion must be both unreasonable and substantial or serious" (citation and quotation omitted). Polay v. McMahon, 468 Mass. 379, 382 (2014). The plaintiffs "may support a claim of invasion of privacy by showing that a defendant has intruded unreasonably upon the [plaintiffs'] 'solitude' or 'seclusion'" (citation omitted). Id. Whether an intrusion is unreasonable, substantial, or serious are questions of fact determined by the jury. Id. at 383.
The evidence permitted the jury to find that the defendants installed a surveillance camera the day after they lost the c. 258E trial in order to observe the plaintiffs and their children while they were in their own yard. The plaintiffs as a result became reluctant to use their yard, and D.C. in particular did not feel comfortable because of the surveillance. The C.s were compelled to plant landscaping to try to regain their privacy. The evidence was sufficient to permit the jury to find that the plaintiffs' privacy was invaded. Polay, 468 Mass. at 384.
b. Abuse of process. The three elements of an abuse of process action are that "'process' was used, for an ulterior or illegitimate purpose, resulting in damage" (citation omitted). Millennium Equity Holdings, LLC v. Mahlowitz, 456 Mass. 627, 636 (2010). Here, the evidence permitted the inference that the purpose of the c. 258E harassment action was to extract a favorable outcome in the pending adverse possession action which otherwise was not likely to succeed. The inaccuracy of the factual allegations of the adverse possession action, combined with the timing of the sequence of events, including the sending of Exhibit 30 (an unobjected-to version of Exhibit 23), the lack of factual support for the c. 258E claim, and the contents of the e-mail suggesting a compromise immediately after the filing of the c. 258E complaint, were sufficient bases upon which to permit the jury to find the necessary elements of the claim.
c. Assault. An assault is an "act done with the intention of causing 'a harmful or offensive contact with the person of the other . . . , or an imminent apprehension of such a contact [if] . . . the other is thereby put in such imminent apprehension" (citation and quotation omitted). Guzman v. Pring-Wilson, 81 Mass. App. Ct. 430, 434 (2012). The jury could find that J.C. "got into [R.C.'s] face," standing chest-to-chest with him and screaming. Whereas R.C. tried to deescalate the situation by walking away and remaining calm, J.C. tried to escalate it by attempting to induce a physical conflict in the street. At the same time, R.K. was recording the incident on her cellphone, and E.C. was shouting at R.C. as well. The jury could readily credit R.C.'s testimony that he was afraid that he was about to be drawn into a physical conflict with J.C.
The defendants contend that provocation is a defense to the assault. However, the defendants never argued provocation as a defense but to mitigate damages in response to a jury question. The issue is accordingly waived. Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006).
d. Trespass. "One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally [a] enters land in the possession of the other, or causes a thing or a third person to do so, or [b] remains on the land, or [c] fails to remove from the land a thing which he is under a duty to remove" (citation and quotation omitted). Dilbert v. Hanover Ins. Co., 63 Mass. App. Ct. 327, 333 (2005). The evidence showed that R.K. and J.C. came uninvited onto the C.s' property.
3. Damages. The defendants argue that there was insufficient evidence to support the damages award, and that the judge abused his discretion in declining to remit the damages award. Damages are excessive when they are "so great . . . that it may be reasonably presumed that the jury, in assessing them, did not exercise a sound discretion, but were influenced by passion, partiality, prejudice, or corruption" (citation and quotation omitted). Bartley v. Phillips, 317 Mass. 35, 41 (1944).
For abuse of process, plaintiffs "must show that damage occurred as the natural and probable consequences of the wrong done." Quaranto v. Silverman, 345 Mass. 423, 427 (1963). The costs of defending against an improper action, the emotional harm a party suffers, and the harm to the party's reputation are compensable categories of damages for an abuse of process claim so long as the specific damages are affirmatively proved. Millennium, 456 Mass. at 645. There was evidence here that the C.s incurred fees to have an attorney defend against the c. 258E case, and that that case likely had some impact on R.C.'s reputation in the community. Id. at 649 (damages for reputational harm).
As to assault, a plaintiff may recover damages for "the humiliation, indignity, and injury to [their] feelings." Ross v. Michael, 246 Mass. 126, 129 (1923). The evidence permitted the jury to conclude that the C.s were aggressively confronted outside their home, and embarrassed in front of their neighbors, who were required to be questioned by the police. R.C.'s reputation was negatively affected as a result of the incident, resulting in his resignation as coach of the local youth baseball team. After the incident, the C.s also felt uncomfortable interacting within their sons' school community.
Our courts have upheld the award of damages for distress and discomfort resulting from a trespass. See Harrison v. Textron Inc., 367 Mass. 552, 556 n.13 (1975); Fenton v. Quaboag Country Club, Inc., 353 Mass. 534, 539 (1968) (upheld jury award of $2,650 for plaintiff homeowners' distress and discomfort). The jury were entitled to credit D.C.'s testimony that, as a result of the trespass, she does not feel safe in her home being alone on the C. property. She also carries her phone with her in case she needs to film any interaction with the defendants.
As to the privacy claim, the evidence showed that, as a result of the surveillance camera, the C.s felt uncomfortable in their own yard, and reduced their use of their own property. They were required to plant new landscaping to try to regain their privacy.
Lastly, the defendants argue that the judge should have remitted what they view as the excessive damages award. It is "rare[] for a judge's decision on a remittitur to be set aside on appeal as an abuse of discretion." Dubuque v. Cumberland Farms, Inc., 93 Mass. App. Ct. 332, 350-351 (2018). "[W]e do not substitute our judgment for that of the judge who heard the evidence and saw the witnesses." Id. at 353. Although the damages were high, the judge did not stray outside the bounds of discretion in concluding that they were not "greatly disproportionate to the injury proven," nor did they represent a miscarriage of justice. Reckis v. Johnson & Johnson, 471 Mass. 272, 299 (2015).
The plaintiffs were awarded $100,000 on their abuse of process claim, $50,000 on the assault claim, $50,000 for the trespass claim, and $75,000 for invasion of privacy.
4. Anti-SLAPP. Finally, the defendants argue that the trial judge erred in denying their special motion to dismiss counts I (assault), II (trespass), and IV (abuse of process) pursuant to G. L. c. 231, § 59H (anti-SLAPP statute). The special motion to dismiss allows a special movant to seek dismissal of civil claims "based solely on its exercise of the right of petition." 477 Harrison Ave., LLC v. JACE Boston, LLC, 477 Mass. 162, 168 (2017). It is clear that the assault and trespass claims were not based solely on petitioning activity.
The abuse of process claim was based on the filing and prosecution of the c. 258E case. But an abuse of process claim will not "always be solely based on a special movant's petitioning activities." 477 Harrison, 477 Mass. at 169. For example, "a party's attempt to use an invocation of process to extort an opposing party constitutes a substantial nonpetitioning basis for an abuse of process claim." Id. "The question here then is whether the [nonmoving party] alleges that the [special movants] engaged in any conduct germane to its abuse of process claim, apart from their invocations of process, which can provide a 'substantial basis' for its claim." Id. Here, the plaintiffs alleged that R.K. brought the c. 258E case without factual basis for the ulterior purpose of coercing the C.s to give up their rights in the adverse possession case after it was discovered that she had made false factual allegations in that case.
Judgment affirmed.
By the Court (Vuono, Meade & Wolohojian, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: July 30, 2020.