Opinion
10-P-1697
10-20-2011
ARCADD, INC. & another v. SAMUEL H. PATTERSON & another.
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 defamation action arises out of the termination of an architectural contract between the town of Falmouth and the plaintiffs. The plaintiffs, ARCADD, Inc. and Ashkouri (collectively ARCADD), filed the defamation action against the town's then assistant superintendent of finance and human resources, Mark Dupuis, and the school committee chairman, Samuel H. Patterson, Jr., arising out of statements the two men made upon termination of the a multi-million dollar school renovation contract wherein the plaintiffs were to provide architectural services. See Phelan v. May Dept. Stores Co., 443 Mass. 52, 55-56 (2004).
In April, 2006, the town by letter informed ARCADD that it desired to terminate ARCADD's contract 'on the grounds of convenience' and also requested that ARCADD provide its billings for its claims. In May, 2006, ARCADD provided such a list totaling $2,021,007.44. By letter dated June 2, 2006, town counsel provided ARCADD with a summary of the town's claims against ARCADD, totaling $3,408,485. On June 9, 2006, ARCADD sued the town for breach of contract. On June 29, 2006, the town filed its counterclaim and also terminated the contract 'for cause.' Shortly thereafter, the town entered into a contract with another firm to complete the design work on the project.
In August, 2006, Katherine Craven, executive director of the Massachusetts School Building Authority, sought from the town written notification about the legal proceedings in connection with the school project and background information. Dupuis sent Craven a letter in which he wrote, among the various statements now alleged to be defamatory -- 'Falmouth has terminated ARCADD's contract for cause.' Other allegedly defamatory comments made by the defendants at a parent information forum were reported in the local press.
ARCADD brought separate actions for defamation against Patterson and Dupuis, which were then consolidated. A Superior Court judge allowed the defendants' motion for summary judgment, concluding that the statement in the letter to Craven that the town had terminated the contract 'for cause' was true, as was Dupuis's statement (reported in a local newspaper) that the project 'had to be modified to meet the building code.' (The only verbatim quotation in the newspaper attributed to Dupuis was -- 'If there is one main reason [for the delays], that is the one.') The judge also ruled that the statements complained of either were not actionable statements of opinion or otherwise not defamation as matter of law. See and compare National Assn. of Govt. Employees, Inc. v. Central Broadcasting Corp., 379 Mass. 220, 227 (1979).
'Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact that the moving party is entitled to a judgment as a matter of law.' Highlands Ins. Co. v. Aerovox Inc., 424 Mass. 226, 232 (1997) (internal quotations and citations omitted). The nonmoving party bears the burden of showing specific facts to establish the existence of a material fact once the moving party establishes the absence of a triable issue. See Doe v. Liberty Mut. Ins. Co., 423 Mass. 366, 368 (1996).
In an attempt to survive summary judgment, the plaintiffs relied on an affidavit from Hisham Ashkouri and handwritten minutes of meetings run by the Falmouth high school building committee as primary evidence to show that the statements made were defamatory, knowingly false and spoken with malice because the defendants were privy to the ongoing problems with the Project. We affirm.
Our review is de novo. Miller v. Cotter, 448 Mass. 671, 676 (2007).
Summary judgment was properly granted, as the plaintiffs did not present sufficient evidence to counter the defendants' position that the statements made did not rise to the level of defamation. See Howell v. Enterprise Pub. Co., LLC, 455 Mass. 641, 671 (2010). Moreover, they did not provide anything that could contravene the reasonable inferences that the statements were nonactionable opinions or shielded by conditional privilege. See Kourovacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). This is a fatal procedural misstep.
The plaintiffs' failure sufficiently to address the defendant's motion to strike major portions of Hisham Ashkouri's affidavit offered in an attempt to thwart summary judgment was another significant misstep. See and compare Sklar v. Beth Israel Deaconess Med. Center, 59 Mass. App. Ct. 550, 552 n.3 (2003).
A defamatory statement must subject a plaintiff to 'contempt, hatred, scorn, or ridicule or tend to impair his standing in the community.' Tartaglia v. Townsend, 19 Mass. App. Ct. 693, 696 (1985). No such showing has been made to appear. The nonmoving party's failure to prove an essential element of his case 'renders all other facts immaterial' and mandates summary judgment in favor of the moving party. Kourouvacilis v. General Motors Corp., supra at 711. Thus, on the record before us, as the plaintiffs have not shown a reasonable expectation of proving an essential element of their case, i.e., that the statements were defamatory, summary judgment was correctly entered. See Alba v. Sampson, 44 Mass. App. Ct. 311, 312 (1998).
Judgment affirmed.
By the Court (Trainor, Brown & Carhart, JJ.),