Opinion
20-P-962
06-11-2021
RICHARD PAIVA & another [1] v. MIDDLESEX SHERIFF'S OFFICE.[2]
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
This appeal arises from the dismissal of a complaint brought by the plaintiffs, a husband and wife, against their former employer, the Middlesex Sheriff's Office, and several of its officers or employees, alleging violations of the Whistleblower Act, G. L. c. 149, § 185 (act). The plaintiffs initially prevailed against the defendants' motion to dismiss those claims as time-barred. However, on the defendants' motion for summary judgment, a second motion judge ruled that the claims were indeed time-barred. The plaintiffs contend that this was error because the earlier decision on the motion to dismiss had resolved this issue and, under the law of the case doctrine, was binding on the second judge. We conclude that the second judge was not so constrained and therefore affirm.
The parties stipulated to the dismissal of the plaintiffs' remaining claims.
The plaintiffs make no argument that the second judge's analysis of why their claims were time-barred was itself erroneous; they claim only that she should not have undertaken that analysis.
Background.
We recite the undisputed facts relied upon by the second judge, supplemented by other facts from the record where relevant. In November 2012, the plaintiffs, through their attorney, submitted a demand letter to the defendant sheriff's office, alleging retaliation in violation of the act.
In November 2016, the plaintiffs commenced this action alleging such retaliation. The defendants moved to dismiss based upon the complaint having been filed after the two-year limitations period set forth in the act. See G. L. c. 149, § 185 (d). The plaintiffs' November 2012 demand letter was not attached to the complaint or the defendants' motion to dismiss. The first motion judge ruled that the plaintiffs had alleged sufficient facts to proceed under a continuing violation theory and therefore denied the motion to dismiss.
After some discovery, the defendants moved for summary judgment. The November 2012 demand letter was part of the summary judgment record. At this stage, the second judge ruled that the plaintiffs' complaint was filed after the limitations period had expired. The plaintiffs then timely appealed the judgment.
Discussion. The plaintiffs argue that the law of the case doctrine constrained the second judge to follow the first judge's ruling regarding whether the claims were time-barred. They rely on King v. Driscoll, 424 Mass. 1 (1996), which described the doctrine as "reflect[ing] [an appellate] court's reluctance 'to reconsider questions decided upon an earlier appeal in the same case.'" Id. at 7-8, quoting Peterson v. Hopson, 306 Mass. 597, 599 (1940). But "King refers to reconsideration of questions previously decided on appeal, not to reconsideration of questions previously decided in a motion decision." Winchester Gables, Inc. v. Host Marriott Corp., 70 Mass.App.Ct. 585, 593 (2007). "Further, 'a second judge does have the power to rule differently from the first judge on a "case, an issue, or a question of fact or law once decided" in order to reach a just result.'" Id., quoting Goulet v. Whitin Mach. Works, Inc., 399 Mass. 547, 554 (1987).
More fundamentally, the two judges here were deciding different questions. The first judge, in ruling on the motion to dismiss, was required to take the complaint's factual allegations as true, draw all reasonable inferences in the plaintiffs' favor, and determine "whether the factual allegations plausibly suggest[ed] an entitlement to relief." Curtis v. Herb Chambers 1-95, Inc., 458 Mass. 674, 676 (2011). In doing so, the judge did not have the November 2012 letter before him and so could not consider its content. The second judge, in ruling on the motion for summary judgment, was required 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 a judgment as a matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). The nonmoving party "cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment." LaLonde v. Eissner, 405 Mass. 207, 209 (1989). Here, the defendants' summary judgment motion asserted that the plaintiffs had sent the November 2012 demand letter, the plaintiffs' opposition agreed that this was true, and both parties submitted copies of the letter as exhibits. Thus the second judge, unlike the first, was free to examine the content of the letter and to determine, as she did, that it showed the plaintiffs were aware by November 2012, more than two years before the complaint was filed, of the defendants' alleged retaliatory acts. The second judge thus ruled that the continuing violation doctrine did not apply. There was no error in her determining this question based on the fuller record before her.
Judgment affirmed.
The panelists are listed in order of seniority.