Opinion
20-P-1129
12-17-2021
JAMES MASLOW & others [1] v. CAROLYN O'CONNOR [2] & others. [3]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiffs, James and Karen Maslow and Elizabeth Lewis, appeal from the entry of summary judgment in favor of the defendant Alsue, see note 3, supra, on the plaintiffs' claim under the Massachusetts Civil Rights Acts (MCRA), G. L. c. 12, §§ 11H-I. The plaintiffs also challenge a portion of a permanent injunction that was otherwise favorable to them and the imposition of sanctions against their counsel. We affirm both the limited judgment before us and the sanctions, but we do not reach any issue regarding the injunction, as it is not properly before us.
Background.
The essential background facts appear in the decision on the defendants' previous appeal. See Maslow v. O'Connor, 93 Mass.App.Ct. 112 (2018). On remand, the motion judge had before him not only the usual summary judgment materials but also excerpts of several parties' testimony in the earlier trial in this matter. See Id. at 114 n.7. Briefly, the plaintiffs live on Rackliffe Street in Gloucester, a street that leads to Wonson's Cove in Gloucester Harbor. Defendants Alsue and the O'Connors own the two properties adjacent to the end of Rackliffe Street and to Wonson's Cove. The dispute focuses on the plaintiffs' access to Wonson's Cove via a grassy strip lying across the end of Rackliffe Street, between the properties owned by Alsue and the O'Connors. See Id. at 119. In the previous appeal, the court ruled that the plaintiffs, as Rackliffe Street abutters, have the right to pass over the grassy strip to gain access to the cove. Id. at 118.
It was represented at oral arguments that the O'Connors no longer own the property.
This appeal does not require us to determine the precise current ownership of the grassy strip, and we intimate no view on the issue.
Discussion.
1. MCRA claim.
The plaintiffs contend that there remain disputes of material fact regarding several issues and that the judge therefore erred by granting summary judgment to Alsue on the MCRA claim. These issues, the plaintiffs argue, are whether Alsue (1) interfered by threats, intimidation, and coercion with their right to pass over the grassy strip, and (2) acted in concert with the O'Connors and is therefore jointly liable to the plaintiffs for any MCRA violation by the 0'Connors.
"The standard of review of a grant of summary judgment is 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 a judgment as a matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). Our review of the grant of summary judgment is de novo, meaning we consider all the evidence that was before the motion judge and draw all reasonable inferences therefrom in the light most favorable to the nonmoving parties. See Miller v. Cotter, 448 Mass. 671, 676 (2007). Alsue, as the moving party, had the burden of establishing that there was no genuine issue as to any material fact and that Alsue was entitled to judgment as a matter of law. See Drakopoulos v. U.S. Bank Nat'1 Ass'n, 465 Mass. 775, 777 (2013). Alsue could obtain summary judgment by demonstrating that the plaintiffs had no reasonable expectation of proving an essential element of their case. See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991) .
To establish a G. L. c. 12, § 111, claim, a plaintiff must demonstrate that "(1) his exercise or enjoyment of rights secured by the Constitution or laws of either the United States or of the Commonwealth, (2) has been interfered with, or attempted to be interfered with, and (3) that the interference or attempted interference was by 'threats, intimidation or coercion.'" Bally v. Northeastern Univ., 403 Mass. 713, 717 (1989), citing G. L. c. 12 § 11H. Although the key terms are not defined in the statute itself, the Supreme Judicial Court has defined a "threat" as "the intentional exertion of pressure to make another fearful or apprehensive of injury or harm." Planned Parenthood League of Mass., Inc. v. Blake, 417 Mass. 467, 474, cert, denied, 513 U.S. 868 (1994) (PPLM). "Intimidation" is defined as "putting [a person] in fear for the purpose of compelling or deterring conduct." Id. at 474. "Coercion" is defined as "the application to another of such force, either physical or moral, as to constrain [a person] to do against his will something he would not otherwise have done." Daes v. Dempsey, 403 Mass. 468, 471 (1988). Whether conduct constitutes threats, intimidation, or coercion is examined using a reasonable person standard. See Glovsky v. Roche Bros. Supermkts., Inc., 469 Mass. 752, 763 (2014).
Although the MCRA prohibits attempts to interfere, the plaintiffs did not allege any such attempt in their complaint, or argue it in their summary judgment opposition. We thus focus solely on actual interference.
a. Fence.
The plaintiffs first argue that Alsue's erection of a fence, which projected out toward the center line of Rackliffe Street, was coercive because it interfered with their rights. The fence did not extend all the way to the midline of Rackliffe Street, so the plaintiffs were not completely blocked from crossing the portion of the grassy strip adjacent to Alsue's property. Even if the fence had extended all the way to the midline, this would have been at most a direct violation of the plaintiffs' right to pass over the grassy strip. See Longval v. Commissioner of Correction, 404 Mass. 325, 333 (1989) ("direct violation of a person's rights does not by itself involve threats, intimidation, or coercion"). Although we apply a reasonable person standard in any event, see Glovsky, 469 Mass. at 763, it is noteworthy that the plaintiffs themselves, in their affidavits and in their testimony at the earlier trial, never claimed that Alsue's fence "constrain[ed] [them] to do against [their] will something [they] would not otherwise have done." See Daes, 403 Mass. at 471.
The plaintiffs cite PPLM, 417 Mass. 467, and Bell v. Mazza, 394 Mass. 176 (1985), for the proposition that "[p]hysically obstructing a person's exercise of their property, statutory and/or constitutional rights is actionable coercion." However, the facts of those cases are quite different from the facts here. In PPLM, the defendants knowingly and intentionally used their bodies and bicycle locks to "present[ ] frightening, threatening and impermeable physical obstacles" that prevented patients and others from physically entering, leaving, or using medical facilities. PPLM, supra at 475. In Bell, one defendant warned that he "would do 'anything,' 'at any cost, '" to prevent the construction of a tennis court on the plaintiffs' property. Bell, supra at 179. The defendants then formed an association to prevent construction, threatened to sue the plaintiffs' contractors, attempted to induce the electric company to discontinue plaintiffs' service, physically blocked a plaintiff's passage, and called the police and fire departments concerning the plaintiffs' actions. Id. at 179-180.
Here, Alsue's erection of a fence bore no resemblance to the campaigns in PPLM and Bell to prevent those plaintiffs' exercise of their rights. Therefore, the plaintiffs here had no reasonable expectation of proving that the fence interfered with their rights through coercion. See Kourouvacilis, 410 Mass. at 716.
Nor was Alsue's conduct, considered in the light most favorable to the plaintiffs, anything like the aggressive, abusive, antagonistic, and persistent interference with property rights described in Haufler v. Zotos, 446 Mass. 489, 506-508 (2006) .
The plaintiffs do not argue that the fence constituted a threat or intimidation.
b. Private property sign.
The plaintiffs also argue that the "Private Property" sign that Alsue posted on its fence in 2008 was both threatening and intimidating. However, the plaintiffs do not point to, nor can we find, any case suggesting that a mere sign proclaiming a piece of land to be private property is either threatening or intimidating.
On appeal, the plaintiffs do not make any argument regarding the "No Trespassing" portion of the sign.
Moreover, although we apply a reasonable person standard, it is again noteworthy that nowhere in their affidavits or their trial testimony did the plaintiffs themselves ever state that they felt threatened or intimidated by the sign. The record suggests that the O'Connors were the only ones that may have threatened to call the police or press charges against the plaintiffs for crossing the grassy strip. There is no evidence in the record that Alsue's sign constituted an "intentional exertion of pressure" that would make a reasonable person "fearful or apprehensive of injury or harm." PPLM, 417 Mass. at 474. See Glovsky, 469 Mass. at 763. Therefore, the plaintiffs had no reasonable expectation of proving that the sign constituted a threat or intimidation.
Additionally, the record contains no evidence that Alsue's sign forced the plaintiffs to do or not do anything. Despite the sign, the plaintiffs still attempted to use the grassy strip; the record suggests that, if anything, it was the O'Connors' actions that stopped them. See Pheasant Ridge Assocs. Ltd. Partnership v. Burlington, 399 Mass. 771, 781 (1987) (unlawful, void, and in bad faith taking was not coercive because it did not seek to restrain or dominate the plaintiffs' will and force them "to do or not to do anything"). The plaintiffs also did not testify at trial or state in their affidavits that they felt coerced by the sign. The plaintiffs had no reasonable expectation of proving that the sign constituted coercion. See Kourouvacilis, 410 Mass. at 716.
c. Glaring at a plaintiff.
The plaintiffs also point to evidence that, on an unknown date, Alsue's owners glared at one of the plaintiffs who was crossing the grassy strip. However, under the reasonable person standard, even viewing these facts in the light most favorable to the plaintiffs, a glare would not be enough to constitute threats, coercion, or intimidation under the MCRA. See Glovsky, 469 Mass. at 763.
d. Placement of objects.
The plaintiffs argue that the placement of other miscellaneous objects on the grassy strip supports their MCRA claim against Alsue. However, the plaintiffs point to no evidence that Alsue placed those objects in the strip.
e. Concerted action.
Lastly, the plaintiffs claim that Alsue acted in concert with the O'Connors and is therefore liable for the O'Connors' alleged violations of the MCRA. In Bell, the court recognized joint venture liability in the MCRA context but did not state what evidence was necessary to prove a joint venture. See Bell, 394 Mass. at 180, 184. Bell did, however, cite Caron v. Lynn Sand & Stone Co., 270 Mass. 340 (1930), as an illustration of principles of joint venture or joint enterprise liability. Bell, supra at 184. Caron identified the elements of a joint enterprise as a common purpose, an equal right to control the enterprise, and a community of interest. Caron, supra at 346-347. "As it exists in the law of tort, the doctrine of joint enterprise is narrowly defined and narrowly applied." Stock v. Fife, 13 Mass.App.Ct. 75, 78 (1982).
"The joint enterprise is found to exist when two or more persons tacitly or expressly undertake an activity together --usually an automobile trip -- with common purpose, community of interest and an equal right to a voice in the control." 2 D.B. Dobbs, P.T. Hayden, and E.M. Bublick, Torts § 435, at 829 (2d ed. 2011).
The plaintiffs identify no theory of concerted action that would not require, at a minimum, a shared intent to violate the MCRA. Cf. Commonwealth v. Zanetti, 454 Mass. 449, 467 (2009) (in criminal context, joint venture liability requires shared intent to commit crime). The plaintiffs' claims on appeal that the defendants are jointly liable for creating a public nuisance and for a civil conspiracy were not pleaded in the complaint or otherwise raised in the trial court, and thus are waived. See Albert v. Municipal Court of Boston, 388 Mass. 491, 493-494 (1983) .
Nothing in this record remotely compares to the evidence of joint action in Bell, where the defendants formed a neighborhood association to interfere with the plaintiffs' use of their property. Bell, 394 Mass. at 180. Here, the record contains no evidence that Alsue and the O'Connors had a common purpose or an equal right to a voice in any joint enterprise. Alsue's owners did not live on Rackliffe Street, and the plaintiffs point to no evidence that either of Alsue's owners ever communicated with the O'Connors at all, let alone regarding any shared purpose of blocking access to the grassy strip. Additionally, Alsue and the O'Connors could control only their respective halves of Rackliffe Street. There is no evidence that Alsue had any voice in what the O'Connors may have done to interfere with the plaintiffs' access to the grassy strip. Even if the O'Connors had entirely blocked their half of the street next to the strip, Alsue never completely blocked its own half, instead building its fence only part way to the street's midline, and later moving the fence back at least to the edge of the street after a survey showed the location of Alsue's property line. This forecloses any reasonable inference of a common purpose to block access to the strip.
The plaintiffs did not properly controvert, and therefore are deemed to have admitted, Alsue's amply supported assertions about the original and relocated placements of the fence. See Superior Court Rule 9A (b) (5) (iii) (A) (2021); Dziamba v. Warner & Stackpole LLP, 56 Mass.App.Ct. 397, 399-401 (2002) .
The MCRA cases that the plaintiffs cite to show that Alsue is liable for acting in concert with the O'Connors are easily distinguishable. In Wodinsky v. Kettenbach, 86 Mass.App.Ct. 825 (2015), one defendant acted according to another defendant's instructions and attended meetings on the latter's behalf. Id. at 838. Here, there is no evidence of Alsue acting as the O'Connors' representative. The plaintiffs also cite Commonwealth v. Guilfoyle, 402 Mass. 130 (1988), in which the defendant was part of a group of white youths that chased and threw rocks at Black youths; the case does not discuss issues of joint venture or vicarious liability. Id. at 131-133. Here, the record contains no evidence of Alsue's and the O'Connors' participation in any joint undertaking. Therefore, even viewing the evidence in the light most favorable to the plaintiffs, they had no reasonable expectation of proving that Alsue worked in concert with the O'Connors to interfere with the plaintiffs' rights.
2. Permanent injunction.
The plaintiffs argue that the judge erred in issuing a permanent injunction that, although generally running in the plaintiffs' favor as directed in the earlier appeal, see Maslow, 93 Mass.App.Ct. at 118, permitted the defendants to place a private property sign or signs on the grassy strip. An order disposing of less than all the claims of all the parties is generally not appealable unless the appellant seeks and obtains entry of a separate and final judgment thereon pursuant to Mass. R. Civ. P. 54 (b), 365 Mass. 820 (1974). See Bragdon v. Bradford O. Emerson, Inc., 19 Mass.App.Ct. 42 0, 422 (1985). Here, the judge entered judgment pursuant to rule 54 (b) dismissing the MCRA claim against Alsue, count 2 of the complaint. The plaintiffs properly appealed the judgment dismissing that claim. However, the rule 54 (b) judgment did not incorporate or relate to the injunction, which was based on count 1. The plaintiffs' challenge to a provision of the injunction is independent of whether the plaintiffs have a viable MCRA claim. Therefore, the injunction issue is not properly before us.
3. Sanctions against counsel.
The plaintiffs argue that the judge erred in imposing a monetary penalty on their counsel for seeking to amend the complaint in a manner contrary to the judge's earlier order. The plaintiffs argue that the earlier order was not a "[c]lear and [u]nequivocal [c]ommand," suggesting that they view the sanctions as issued under the judge's contempt power. See Birchall, petitioner, 454 Mass. 837, 853 (2009) .
This issue is properly before us because the plaintiffs' proposed amendments related to their MCRA claim, which is before us on their appeal from the rule 54 (b) judgment.
Nowhere did the judge suggest that he was invoking that power. Rather, we view the sanctions order as having been issued under the judge's "inherent powers necessary to preserve the court's authority to accomplish justice," which include "the power to sanction an attorney for failing to comply with an order of the court." Wong v. Luu, 472 Mass. 208, 218 (2015). We review such an order for abuse of discretion. Id. at 220. "[A] judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made 'a clear error of judgment in weighing' the factors relevant to the decision, . . . such that the decision falls outside the range of reasonable alternatives" (citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) .
After allowing the plaintiffs' motion to amend to add a defendant, the judge's earlier order stated, "[o]therwise, the motion to amend the complaint is DENIED. The request to add fraudulent conveyance as a claim in this case is DENIED. Any relief not stated as allowed in this order is DENIED." The plaintiffs' counsel then filed an amended complaint with changes going well beyond the addition of one defendant. The judge's allowance of Alsue's motion for sanctions properly compensated Alsue for attorney's fees incurred while responding to the improperly amended complaint. The plaintiffs' very short appellate argument against the sanctions, which relies primarily on the incorporation by reference of documents filed in the trial court, does not identify any abuse of discretion in the sanctions order.
4. Appellate attorney's fees.
Alsue requests an award of costs and attorneys' fees on the ground that the plaintiffs' appeal is frivolous. See Mass. R. A. P. 26, as appearing in 481 Mass. 1655 (2019). "An appeal is frivolous, so as to risk potential imposition of a sanction, where there can be no reasonable expectation of a reversal under well-settled law." Marabello v. Boston Bark Corp., 463 Mass. 394, 400 (2012). Here, we decline to hold the appeal so utterly without basis as to warrant an award of fees and costs.
Sanctions order dated January 15, 2020, affirmed.
Judgment pursuant to Mass. R. Civ. P. 54 (b), dated June 25, 2020, affirmed.
The panelists are listed in order of seniority.