His allegation was supported by Cloutier's affidavit, which directly accused Jones and Dean of threatening and coercing him to accuse Smith falsely. Smith argued that Jones and Dean were motivated by a desire for retaliation โ presumably, for Smith's complaint about them to Bender. The district judge, relying in part on Morreale v. De Zotell, 10 Mass. App. Ct. 281, 282-83, 406 N.E.2d 1311 (1980), ruled that Smith failed to allege facts showing that the disciplinary board acted without probable cause in finding him guilty. While true enough, in that the disciplinary board had only Cloutier's original, unsworn statement to Dean, and not his recantation, this does not compel the conclusion that the complaint failed to state a claim as to defendants Jones and Dean, the alleged conspirators. That Cloutier, and not Jones or Dean, signed the criminal complaint does not defeat Smith's malicious prosecution claim under Massachusetts law.
Lincoln v. Shea, 361 Mass. 1, 4 (1972). Morreale v. DeZotell, 10 Mass. App. Ct. 281, 281-282 (1980). Carroll v. Gillespie, 14 Mass. App. Ct. 12, 18 (1982).
The essential element to be proved is that the defendant lacked probable cause to believe that the plaintiff had committed the crime charged, and the plaintiff has the burden of proving that element. Morreale v. DeZotell, 10 Mass. App. Ct. 281, 281-282 (1980), and cases cited. The defendants argue that the plaintiff's proof was insufficient to support a finding that Gillespie lacked probable cause.
'" Bednarz v. Bednarz, 27 Mass.App.Ct. 668, 674 n. 1 (1989) (citations omitted); see also Morreale v. DeZotell, 10 Mass.App.Ct. 281, 282 (1980), citing Restatement (Second) Torts ยง 673, Comment on (b) and (c). Here, the parties dispute whether the compressors were "new" when sold to the Town, whether Fiske was aware of the facts contained in the Siebe contract, and whether Fiske's statement that he was "responsible for the actions of the company" was actually an admission of guilt.
"The essential element to be proved is that the defendant lacked probable cause to believe that the plaintiff had committed the crime charged, and the plaintiff has the burden of proving that element." Carroll, 14 Mass.App.Ct. at 18, citing Morreale v. DeZotell, 10 Mass.App.Ct. 281, 281-82 (1980).A. CH, Clift and Hensler's Special Motion to Dismiss Is Timely.
' Lincoln v. Shea, 361 Mass. at 5-6." Morreale v. DeZotell, 10 Mass. App. Ct. 281, 282 (1980). Where the evidence relevant to the existence of probable cause is undisputed, the court may rule as a matter of law that such cause did exist, and the plaintiff will be found to have failed to establish the cause of action of malicious prosecution.