Opinion
14-P-474
12-05-2014
ELENA ROSNOV v. JOHN H. MOLLOY.
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
This matter is again on appeal after a hearing in the Superior Court following a remand by the Supreme Judicial Court, Rosnov v. Molloy, 460 Mass. 474 (2011). The facts are detailed in the Supreme Judicial Court decision and we reiterate them only as necessary to our consideration of the issues.
The previous appeal concerned the parties' dispute over the retroactive application of the mandatory treble damages provision contained in St. 2008, c. 80, § 5, an amendment to the Massachusetts Wage Act, G. L. c. 149, § 150. The Supreme Judicial Court resolved the issue by declaring that the mandatory assessment of treble damages was to be applied only prospectively, and remanded the case for consideration of treble damages under the discretionary standard enunciated in Wiedmann v. Bradford Group, Inc., 444 Mass. 698, 709-710 (2005). See Rosnov, supra at 483.
On remand the trial court judge conducted a nonevidentiary hearing and, based on the trial record, issued a decision making findings and ultimately awarding treble damages. The defendant filed a timely appeal.
Discussion. The judge awarded treble damages on the basis that "the defendant acted with willfullness" in withholding wages from the plaintiff. The Wiedmann decision, on which the judge relied, does not enunciate such a test; it refers instead to Goodrow v. Lane Bryant, Inc., 432 Mass. 165, 178 (2000), a case that considers the award of treble damages for violation of G. L. c. 151, § 1B, relating to overtime compensation, and states that "[p]unitive damages may be awarded for conduct that is 'outrageous, because of the defendant's evil motive or his reckless indifference to the rights of others." Goodrow, supra, quoting from Dartt v. Browning-Ferris Indus., Inc. (Mass.), 427 Mass. 1, 17a (1998), quoting from Restatement (Second) of Torts § 908(2) (1979).
In this case the judge found that the defendant's actions were not "evil" and that "[i]t is questionable that he acted with reckless indifference." While Wiedmann does not use the word "wilfully," Goodrow makes use of the word "wilfully" in declining to award treble damages as follows: "We find nothing in the record to support a finding that [the defendant] intentionally or wilfully violated Massachusetts law . . . ." Goodrow, supra at 179. The plaintiff argues that the judge's finding here should be interpreted to refer to a wilful indifference to her rights and that, because a wilful indifference is more egregious than a reckless indifference, the standard set forth in Wiedmann has been met, especially in light of the Wiedmann court's reliance on Goodrow. The judge's decision is simply phrased in too ambiguous a fashion for us to adopt this reading, especially in light of the Supreme Judicial Court's order containing a specific charge that the decision on remand be rendered under the Wiedmann two-part test.
We note that a finding that something is "questionable" does not meet a recognized standard of proof for a plaintiff to prove a case.
Exacerbating the problem is the finding on which the judge based the determination of wilfulness. The plaintiff's letter to the defendant, referencing an employment agreement, states: "It is important to note that the Agreement is deplete [sic] of any language requiring Ms. Rosnov to remain employed with your office in order to receive the referral fee." This language strongly implies the existence of a document. Inasmuch as the defendant's response, requesting documentary proof of the plaintiff's assertion, was the stated basis for the judge's finding of wilfulness, we cannot agree that this fact alone justifies the imposition of treble damages.,
We consider this to be the case even if, as the judge surmised, the defendant knew there was no written employment agreement. The defendant's response, testing the basis of the plaintiff's assertion, did not rise to the level of "evil" or "reckless indifference."
The term "wilful" is correct if interpreted to apply to the defendant's act of withholding the referral fee. That, however, is not the equivalent of a wilful violation of law which, as the reference in Goodrow to the Restatement explicates, involves a consideration not just of the act itself but of "the character of the defendant's act" (emphasis supplied). Restatement (Second) of Torts § 908(2) (1979). The latter would require a belief by the defendant that the plaintiff was legally entitled to the monies withheld. The judge's finding that the defendant "willfully sought to avoid and deny payment to the plaintiff in breach of the parties' agreement" does not resolve this issue.
Under these circumstances, involving the impossibility of determining whether the proper two-prong Wiedmann standard was incorporated into the judge's decision, we vacate the judgment, findings, and rulings regarding treble damages and remand the matter to a different judge for further proceedings. We express no opinion on any further decision to allow or deny treble damages except to note that such a decision must be based on findings supported by the record and measured against the requirement of conduct defined as outrageous either due to "the defendant's evil motive or his reckless indifference to the rights of others." Wiedmann, 444 Mass. at 710.
So ordered.
By the Court (Grainger, Carhart & Sullivan, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: December 5, 2014.