Opinion
16-P-770
05-17-2017
C.R. v. Torrey BEIQUE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Torrey Beique appeals from a judgment of the Superior Court, finding him liable on the plaintiff's claims of assault and battery and intentional infliction of emotional distress, and awarding damages to the plaintiff, as mother and next friend of her minor child (child). We discern in Beique's various claims of error no cause to disturb the judgment, and affirm.
Background. On an occasion when the child was playing with Beique's children, Beique brought the child alone into his bedroom and sexually assaulted her. Beique admitted to sufficient facts on a charge of assault and battery under G. L. c. 265, § 13A(a ). The plaintiff then brought this civil action against Beique, raising claims for assault and battery and intentional infliction of emotional distress. A motion judge ordered the entry of partial summary judgment as to liability on the count alleging assault and battery, an order Beique does not challenge. Beique did not appear at the final pretrial conference, his default was entered, and a hearing for an assessment of damages was scheduled. Beique attended the hearing but did not testify. Following the plaintiff's presentation, a second judge made certain injunctive orders, which Beique does not challenge, and awarded money damages of $250,000 (exclusive of interest).
Discussion. We are unpersuaded that the judgment must be set aside because the second judge did not vacate Beique's default, not least because Beique never moved to vacate the default. Nor does the record support Beique's claim that the clerk did not adequately notice the final pretrial conference. At the assessment hearing, in response to Beique's question, the plaintiff's counsel represented that the motion judge orally informed Beique of the date of the final pretrial conference in open court (a representation Beique did not challenge) and that the clerk subsequently sent written notice as well. The clerk had recited the address that the clerk had listed for Beique, and he confirmed that the listed address was correct. In short, the record before us suggests the clerk gave adequate notice. In this light, and Beique having made no objection to the procedure employed at the assessment hearing, we need not address Beique's jury trial argument. See Silkey v. New England Tel. & Tel. Co., 9 Mass. App. Ct. 816, 817 (1980) ; Henderson v. D'Annolfo, 15 Mass. App. Ct. 413, 425 n.16 (1983). See also Mass.R.Civ.P. 55(b)(2), as amended, 463 Mass. 1401 (2012).
Equally without merit are Beique's suggestions that the plaintiff failed to prove her claims and that the second judge's factual findings lack evidentiary support. The basic facts of Beique's attack as related by the second judge were established by (i) Beique's admission to sufficient facts in the criminal proceedings; (ii) the motion judge's unchallenged allowance of partial summary judgment; and (iii) the well-pleaded allegations in the complaint, deemed admitted for hearing purposes, see Nancy P. v. D'Amato, 401 Mass. 516, 519 (1988). Those facts adequately support the second judge's findings and establish liability for both assault and battery and intentional infliction of emotional distress. See id. at 520 (elements of claim for intentional infliction of emotional distress); Commonwealth v. Porro, 458 Mass. 526, 529-530 (2010) (elements of claim for assault and battery). Thus, as the second judge observed, the only questions left open for hearing were what remedies, if any, would be appropriate.
Both the plaintiff and the child's grandmother testified regarding the child's emotional trauma, as revealed by their firsthand observations of the child's behavior before and after Beique's attack. That testimony, if credited (as the second judge was entitled to do), established that after the attack the child became anxious, fearful of others, withdrawn, and highly dependent on family members for support. Indeed, more than two years after the attack the child continued to have unexplained, debilitating panic attacks and on at least one occasion panicked and hid in the basement when an unexpected visitor knocked on the house door, suffering from what the grandmother described as a "crippling" fear of Beique. The child was described as having been outgoing, friendly, fear-free, and independent before the attack. The plaintiff testified, without objection, regarding the child's postattack ongoing therapy and treatment plan and their costs, as well as the special support systems established for the child by her school. The plaintiff also testified, again without objection, regarding the child's therapist's diagnosis that the child suffered from posttraumatic stress disorder arising from Beique's attack and that the therapist recommended that the child have no contact of any kind with Beique because "it would send her spiraling [backwards], and any progress that we've made with her, because she has such a paralyzing fear of him, that it would absolutely destroy any progress that we've made with her."
Such evidence furnished ample basis for the second judge's conclusion that Beique's attack caused the child significant emotional and other injuries, and rebuts any claim that the second judge's award is so "greatly disproportionate to the injury proven" that it represents "a miscarriage of justice." Labonte v. Hutchins & Wheeler, 424 Mass. 813, 824 (1997), quoting from doCanto v. Ametek, Inc., 367 Mass. 776, 787 (1975).
We decline to award appellate attorney's fees.
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Judgment affirmed.