Opinion
21-P-68
02-11-2022
Wilson DESENA v. Ivan BURNS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Plaintiff Wilson DeSena appeals from a summary judgment dismissing his tort claims against defendant homeowner Ivan Burns for interference with advantageous relations. We affirm.
As is our custom, we spell the plaintiff's name as it appears in the complaint.
Background. The following facts are undisputed. In 2014, the boiler in Burns's home discharged oily soot, causing extensive damage. At the suggestion of his insurer, Chubb Insurance Company (Chubb), Burns hired SynergyOne Solutions, Inc. (SynergyOne), to clean up the soot and to repair the damage.
In the summer of 2015, based on problems with SynergyOne's past estimates, Chubb stopped referring jobs to SynergyOne.
In 2015, DeSena worked for SynergyOne performing the work at Burns's home. Burns was not happy with DeSena's work. On October 30, 2015, Burns sent an e-mail to Chubb stating that he would inform SynergyOne's president that "I want ... De[S]ena out of the loop because he is wasting everyone's time." On February 9, 2016, Burns wrote to SynergyOne's president, "[Y]ou have an employee, ... DeSena, who is engaging in unethical practices that are doing serious harm to your company in the eyes of customers, subcontractors, and Chubb Insurance, among others." The letter continued for several pages, detailing many examples of what Burns considered to be DeSena's "reprehensible conduct." After SynergyOne failed to pay a subcontractor on time, on February 16, 2016, Burns sent Chubb an e-mail stating his view that DeSena's estimates contained inaccuracies, including inflated costs and inappropriate descriptions of work.
In September 2016, SynergyOne terminated DeSena. DeSena sued Burns, claiming that Burns intentionally interfered with DeSena's advantageous relationships with SynergyOne and Chubb. Finding that there was no genuine issue of material fact, a Superior Court judge granted Burns's motion for summary judgment.
Discussion. "We review a grant of summary judgment de novo to determine ‘whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law.’ " Pinti v. Emigrant Mtge. Co., 472 Mass. 226, 231 (2015), quoting Juliano v. Simpson, 461 Mass. 527, 529-530 (2012). The party who moves for summary judgment has the initial burden to show "that there is an absence of evidence to support the case of the nonmoving party." Kourouvacilis v. General Motors Corp., 410 Mass. 706, 714 (1991). If the moving party meets that burden, to survive a motion for summary judgment, the nonmoving party must "set[ ] forth specific facts showing that there is a genuine issue for trial." Id. at 716, quoting Mass. R. Civ. P. 56 (e), 365 Mass. 824 (1974).
In order to establish a claim for intentional interference with advantageous relations, DeSena was required to prove the following: (1) he had an advantageous relationship, such as a contractual or employment relationship with either SynergyOne or Chubb; (2) Burns knowingly induced a breaking of the relationship; (3) Burns's interference with the relationship was improper in motive or means; and (4) Desena was harmed by Burns's conduct. See Blackstone v. Cashman, 448 Mass. 255, 260 (2007). The motion judge properly granted summary judgment for Burns, because DeSena did not set forth specific facts showing either that Burns knowingly induced a break in DeSena's relationship with SynergyOne or Chubb, or that any interference by Burns was improper in motive or means.
Viewed in the light most favorable to DeSena, Burns's communications with SynergyOne and Chubb expressing his dissatisfaction with DeSena's work and his view that DeSena's billing practices were "reprehensible" and "unethical" did not establish a claim for intentional interference with advantageous relations with SynergyOne. As the judge ruled, DeSena did not provide any evidence that Burns's statements caused SynergyOne to terminate his employment. SynergyOne's president averred in an affidavit that he decided to terminate DeSena in or about September 2016, and that his decision "had nothing to do with" and was "not in any way influenced" by Burns's statements. Contrary to DeSena's argument, his unsupported claim that the affidavit was "self-serving" does not generate a genuine issue of material fact. See Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 683 (2016) (party opposing summary judgment must substantiate genuine issue of material fact, including by producing evidence of pretext).
Nor did Burns's complaints about DeSena amount to intentional interference with any advantageous relationship between DeSena and Chubb. Putting to one side whether DeSena had any contractual or employment relationship with Chubb, as mentioned above, see note 2, supra, the undisputed evidence was that Chubb stopped referring business to SynergyOne before Burns made any negative statements about DeSena. There is no evidence that Burns's complaints about DeSena caused Chubb to stop referring business to SynergyOne, let alone that any such lack of business caused SynergyOne to terminate DeSena. DeSena has not shown a genuine issue of material fact that would survive summary judgment. See Kourouvacilis, 410 Mass. at 716.
DeSena also failed to provide any evidence that Burns's complaints about him were "improper in motive or means" (citation omitted). Dear v. Devaney, 83 Mass. App. Ct. 285, 295 (2013). "[I]mproper conduct may include ulterior motive (e.g., wishing to do injury) or wrongful means (e.g., deceit or economic coercion)" (quotation and citation omitted). Cavicchi v. Koski, 67 Mass. App. Ct. 654, 658-661 (2006). See Restatement (Second) of Torts § 767 comment c (fraudulent misrepresentations and bad faith lawsuits are improper conduct).
Burns's complaints to his insurer, Chubb, and his contractor, SynergyOne, that DeSena's billing practices were "unethical" and his conduct "reprehensible" did not on their face demonstrate that Burns had an improper motive or used an improper means. See, e.g., Dulgarian v. Stone, 420 Mass. 843, 852 (1995) (reporter's statement that autobody shop violated law not improper in motive or means). Nor did DeSena provide any extrinsic evidence that Burns's statements were a "smokescreen" for his desire to have DeSena fired. See, e.g., Skyhook Wireless, Inc. v. Google Inc., 86 Mass. App. Ct. 611, 621 (2014) (summary judgment proper where plaintiff software developer did not demonstrate that Google's assertion of contractual rights was "smokescreen" to shut plaintiff out of market). For that matter, DeSena did not provide any evidence that Burns's complaints about him were knowingly false. See, e.g., Dulgarian, 420 Mass. at 852 ("plaintiffs could not prove that any of the defendants’ statements were false"). Contrast Cavicchi, 67 Mass. App. Ct. at 658-659 (improper means where defendant knowingly made material misrepresentations to plaintiff's clients that induced them to discharge plaintiff).
Having decided the case on these grounds, we need not reach Burns's alternative argument that any statements he made about DeSena were made in anticipation of litigation, and so they would be inadmissible at any trial. See Gillette Co. v. Provost, 91 Mass. App. Ct. 133, 140 (2017). See also Mass. G. Evid. art. V(h)(1) (2021).
Judgment affirmed.