Opinion
13-P-1454
11-19-2014
RUSSELL REEVES & others v. TOWN OF HINGHAM & others.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On April 28, 2011, the plaintiffs, Russell Reeves, Katherine Harrison, and Austin Reeves, filed a seven-count complaint in Plymouth Superior Court against the town of Hingham (town), Chief Mills, and Detective Mansfield (collectively, the defendants). On February 10, 2012, the defendants moved to dismiss the plaintiffs' complaint pursuant to Mass.R.Civ.P. 12(b)(6), as appearing in 365 Mass. 754 (1974). On March 23, 2012, the plaintiffs filed an amended complaint. On March 25, 2013, a judge of the Superior Court dismissed the plaintiffs' amended complaint, finding that several of the plaintiffs' claims were barred by the statute of limitations and that the plaintiffs had otherwise failed to state a claim upon which relief could be granted. We affirm the dismissal of the plaintiffs' complaint for essentially the same reasons as articulated by the trial judge.
Previously, on January 14, 2010, the plaintiffs had filed a nearly identical complaint against the defendants in Federal court. On March 3, 2011, the Federal District Court entered judgment for the defendants on the plaintiffs' Federal claims, and ordered that the plaintiffs' State law claims be remanded to Superior Court for further adjudication. The United States Court of Appeals for the First Circuit affirmed the Federal District Court's decision.
The trial judge held, additionally, that the plaintiffs' malicious prosecution claim was "precluded because of the [Hingham] District Court's finding of probable cause" against Russell Reeves. See Background, infra.
Background. In mid-October, 2006, a fraudulent electronic mail message (e-mail) was sent from the e-mail address "melissa.tully@yahoo.com" to a number of contacts of Melissa Tully. At the time, Tully was a member of the town's board of selectmen. Tully reported to the Hingham police department (HPD) that she neither created the e-mail address "melissa.tully@yahoo.com," nor did she create or authorize the fraudulent e-mail. A grand jury investigation led the HPD to suspect that Russell Reeves was behind the fraudulent e-mail. As a result, on December 6, 2006, Detective Mansfield, along with members of the HPD and the Plymouth County sheriff's department, went to Reeves's residence to execute a search warrant. During the search, several of the plaintiffs' electronic and digital devices were seized for evaluation. Later, a criminal complaint was filed against Reeves for making a false statement about a candidate for elected public office in violation of G. L. c. 56, § 42, and identity fraud in violation of G. L. c. 266, § 37E. On May 28, 2008, Reeves entered an Alford plea, see North Carolina v. Alford, 400 U.S. 25 (1970), to facts sufficient for a finding of guilty as to the charge of making false statements, and received a continuation without a finding, six months of probation, and a no contact order as to Tully. As a result, the Commonwealth agreed to dismiss the identity fraud charge.
Tully was well known as a strong supporter of the Community Preservation Act (CPA), though the e-mail in question suggested that Hingham voters should repeal the CPA.
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These facts, and alleged subsequent actions of unnamed police officers, form the basis for the plaintiffs' underlying seven-count complaint, which asserts: (1) State civil rights violations under the Massachusetts Constitution and the Massachusetts Civil Rights Act; (2) conversion; (3) malicious prosecution; (4) abuse of process; (5) trespass; (6) intentional infliction of emotional distress; and (7) negligent infliction of emotional distress.
Discussion. We review the decision to allow a motion to dismiss de novo. See Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011); Ryan v. Holie Donut, Inc., 82 Mass. App. Ct. 633, 635 (2012). When considering dismissal of a complaint pursuant to Mass.R.Civ.P. 12(b)(6), an appellate court must assess the legal sufficiency of the complaint, accepting as true all factual allegations in the complaint and drawing "every reasonable inference in favor of the plaintiff." Curtis, supra. The factual allegations of the complaint must plausibly support an entitlement to relief. See Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008). However, "the presence of allegations or information constituting a conclusive affirmative defense can spell the demise of a complaint." Ryan, supra.
1. Statute of limitations. "[A] complaint which shows on its face that the statute of limitations has run prior to the date the action was commenced" may properly be dismissed pursuant to rule 12(b)(6). Babco Indus., Inc. v. New England Merchs. Natl. Bank, 6 Mass. App. Ct. 929, 929 (1978). The plaintiffs argue on appeal that the date for the statute of limitations calculation should be January 19, 2007, the date when the criminal complaint against Russell Reeves for making false statements was issued. We are not persuaded. A cause of action accrues when an injury is sustained or when the plaintiff discovers, or reasonably should have discovered, the harm caused by the defendant's conduct. See Hendrickson v. Sears, 365 Mass. 83, 89-91 (1974). See also White v. Peabody Constr. Co., 386 Mass. 121, 129 (1982) ("[T]he cause of action accrues at the time of injury"). The trial judge was correct in his determination that the statute of limitations began running on December 6, 2006, the day of the execution of the search warrant at the plaintiffs' home. Therefore, the claims stemming from the December 6, 2006, search of the plaintiffs' home -- conversion, malicious prosecution, abuse of process, and trespass -- were correctly dismissed as barred by the three-year statute of limitations applicable to tort actions. See G. L. c. 260, § 2A.
2. Failure to state a claim. As for the remaining counts of the plaintiffs' complaint, the trial judge concluded that the plaintiffs' factual allegations did not "raise a right to relief above the speculative level." Iannacchino, 451 Mass. at 636, quoting from Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1964 (2007). We agree with the trial judge's decision on this point. The complaint alleges that the town, Chief Mills, and Detective Mansfield knew or should have known about the alleged harassment suffered by the plaintiffs at the hands of unnamed and unknown police officers. However, the complaint makes no mention of facts that would support this assertion. Without more, what the plaintiffs allege are not "reasonable inference[s]." Curtis, 458 Mass. at 676. See Mmoe v. Commonwealth, 393 Mass. 617, 620 (1985) (though leniency is appropriate in evaluating pro se complaints, rules of civil procedure are still binding on pro se litigants); Estate of Moulton v. Puopolo, 467 Mass. 478, 492 n.19 (2014). As such, the remaining counts of the plaintiffs' complaint were properly dismissed.
3. Additional arguments. The plaintiffs make a bevy of additional arguments in their brief that are not restricted to the topics discussed within the trial judge's memorandum of decision and order. In conjunction with these arguments, the plaintiffs also make reference to several documents submitted in their appendix that do not conform to the requirements of Mass.R.A.P. 18(a), as amended, 425 Mass. 1602 (1997). These arguments and documents have not been properly presented for appellate review, and we decline to consider them here. See Milton v. Civil Serv. Commn., 365 Mass. 368, 379 (1974); R.W. Granger & Sons v. J & S Insulation, 435 Mass. 66, 74 (2001) ("[I]t is important that an appellate court have before it an adequate record and findings concerning a claim to permit it to resolve that claim properly").
Conclusion. For the above stated reasons, we affirm the dismissal of the plaintiffs' complaint.
Judgment affirmed.
By the Court (Kafker, Trainor & Milkey, JJ.),
Clerk Entered: November 19, 2014.