Opinion
No. 12–P–475.
2013-09-30
Ted TUROWSKI v. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY & others.
By the Court (COHEN, GRAINGER & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Ted Turowski, appeals from a judgment notwithstanding the verdict in favor of Paul McKenna and Edward Collins and directed verdicts in favor of the remaining defendants. Reciting the facts where relevant to the issues on appeal, we reverse in part and affirm in part.
We note that the judgment on the jury verdict erroneously resulted in a judgment, and awarded damages, against Peter St. Clair, and that the docket was corrected to reflect that the judge directed a verdict in St. Clair's favor.
Background. We view the evidence in the light most favorable to Turowski and “determine whether, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, the jury reasonably could return a verdict for the plaintiff.” Phelan v. May Dept. Stores Co., 443 Mass. 52, 55 (2004), quoting from Tosti v. Ayik, 394 Mass. 482, 494 (1985) (judgment notwithstanding verdict). See W. Oliver Tripp Co. v. American Hoechst Corp., 34 Mass.App.Ct. 744, 751 (1993) (directed verdict). Accordingly, the jury could have found the following. In 1972, Turowski became employed by the Massachusetts Bay Transportation Authority (MBTA) and, in 1986, became elected to the executive board (board) of the Alliance of the MBTA Unions (Alliance). He served in various positions while on the board and was elected as treasurer in 1998. As treasurer, Turowski was in charge of Alliance funds, which included collecting money, making deposits, and making disbursements. Regarding disbursements, the Alliance by-laws provided that the treasurer “shall make no disbursements without the sanction of the Executive Board, other than normal operating expenses ” (emphasis supplied).
In or around May, 2001, board members learned that, almost every month, Turowski wrote himself a $200 check, in addition to his Alliance stipend, for work he considered “extra.” Some board members, including McKenna and Collins, believed Turowski did not have the authority to independently write himself these checks. The matter eventually was put to the board for a vote, and it was voted for “ checks of this nature to come before the Board for approval” (emphasis supplied).
In October, 2001, the MBTA finalized a new contract for its employees. It had been approximately four years since their last contact. All employees, including board members, received pay increases and retroactive paychecks. These were disbursed by Turowski and did not require prior board approval. Because board members' stipends were based on the old contract wages, on November 19, 2001, Turowski also disbursed retroactive paychecks to board members for their Alliance-related work.
November, 2001, was also a time during which elections for the board were to take place. At some point between November 19 and 21—before any official vote by the board—McKenna wrote the following statements on his Alliance—related retroactive paycheck:
“Another reason not to vote for Livingston & Turowski. Once again Rich Livingston and Ted Turowski have written unauthorized checks. These checks were not approved by the E–Board [executive board of the union] or membership! All E–Board members with the exception of Turowski and Livingston have agreed to send there [sic] checks back. The Board is looking into legal action on this issue. Call Rich Livingstone [sic] for an explanation.”
McKenna made copies of the statements and left them in the foremen's room for other employees to read. Collins faxed a copy of the check to employees at the power control center. Copies were later posted on MBTA bulletin boards.
The Alliance held its next meeting on November 26, 2001, during which board elections were to take place. At this meeting, McKenna disputed that Turowski had the authority to issue the Alliance-related retroactive paychecks without prior board approval. The matter was put to the board for a vote, and the board voted for all members to return their Alliance-related retroactive paychecks. At the end of the meeting, the votes were tallied and Turowski was not reelected as treasurer. Eventually, Turowski sued the defendants for defamation.
Turowski testified that he was approached by MBTA employees regarding the statements, and there was testimony that MBTA employees understood the statements to mean that Turowski stole money from the Alliance. Turowski further testified that as a result of the dissemination of the statements, he was not reelected as treasurer, he retired early from the MBTA, and he experienced mental pain and suffering. Additionally, Turowski testified that he later moved to Florida and became a real estate agent, but, as a result of the statements, he was prohibited from running for and being elected to a paid position with the Flagler County Association of Realtors. The jury returned a verdict in favor of Turowski for $321,000 against McKenna and Collins.
Discussion. 1. Judgment notwithstanding the verdict. After the jury returned verdicts against McKenna and Collins for defamation, McKenna and Collins moved for judgment notwithstanding the verdict. The judge allowed the motion, determining that the statements were substantially true because Turowski did not obtain prior board approval before issuing the Alliance-related retroactive paychecks, and the board's vote to return the checks evinced that the checks were unauthorized. Additionally, the judge determined that Turowski failed to demonstrate by clear and convincing evidence that the statements were made with actual malice.
To prevail on a claim for defamation, Turowski had to establish that (a) the defendants published false statements to a third party, (b) the statements damaged Turowski's reputation in the community, (c) the defendants acted with actual malice in publishing the statements, and (d) the publication of the statements caused Turowski economic loss or is actionable without economic loss. Ravnikar v. Bogojavlensky, 438 Mass. 627, 629–630 (2003). As an initial matter, we conclude that the statements are defamatory. See, e.g., Gorodetzer v. Kraft, 360 Mass. 743, 746 (1972); Arsenault v. Allegheny Airlines, Inc., 485 F.Supp. 1373, 1378, aff'd, 636 F.2d 1199 (1st Cir.1980), cert. denied, 454 U.S. 821 (1981).
We conclude that Turowski is a public figure and, therefore, he was required to establish that the defendants acted with actual malice in publishing the statements. See Materia v. Huff, 394 Mass. 328, 331 (1985).
a. Falsity of the statements. The trial judge's ruling that the statements were substantially true was based on his determination that the board voted to require Turowski to obtain prior approval before making any disbursements. However, the board never made such a blanket vote. Rather, the record clearly indicates that the board voted only once with regard to requiring Turowski to obtain prior approval and that the vote was for “checks of this nature,” which is a reference to checks that Turowski had been writing to himself for work he considered extra. These checks are separate and distinct from the Alliance-related retroactive paychecks.
Indeed, there was ample evidence from which the jury could reasonably conclude that disbursements of the Alliance-related retroactive paychecks were “normal operating expenses” under the by-laws. For example, it was considered a “normal operating expense[ ]” for Turowski to disburse retroactive paychecks to MBTA employees. Similarly, it was “normal” for Turowski to disburse board members' Alliance stipends, which were based on their wages under a previous contract. The jury could have concluded that because wages were increased as a result of the new contracts, stipends for board members' work on behalf of the Alliance would be increased as well. Further, Turowski testified that he made the disbursements with advice of the Alliance's accountant, and the accountant provided a letter—admitted in evidence—stating that “retroactive pay adjustments due to new contracts are a normal function and responsibility of the organization.” Additionally, even though the board members eventually voted to return their checks, they did not do so until after the statements were published.
Therefore, we conclude the judge's determination that Turowski needed prior board approval before issuing the Alliance-related retroactive paychecks was error. Also, because the evidence was sufficient for the jury to conclude that the disbursement of the Alliance-related retroactive paychecks was “normal,” the jury could reasonably conclude that the statements that Turowski wrote “unauthorized checks” for disbursing them were false.
b. Defamatory connotation. There was testimony that MBTA employees interpreted the statements to mean that Turowski had stolen money from the Alliance. Such evidence is sufficient to satisfy Turowski's burden of proof in this regard. Compare Phelan v. May Dept. Stores Co., 443 Mass. at 59. Contrast Brauer v. Globe Newspaper Co., 351 Mass. 53, 56 (1966).
c. Actual malice. The standard of reckless disregard requires the jury, based on objectively reasonable inferences, to engage in a subjective determination of the defendants' probable awareness of the falsity of the statements. King v. Globe Newspaper Co., 400 Mass. 705, 719–720 (1987). Additionally, “the republisher of a defamatory statement ‘is subject to liability as if he had originally published it.’ “ Appleby v. Daily Hampshire Gazette, 395 Mass. 32, 36 (1985), quoting from Restatement (Second) of Torts § 578 (1977). See Flynn v. Associated Press, 401 Mass. 776, 780 n. 5 (1988).
McKenna's intent in publishing the statements was for others to understand that the board had not authorized the checks. Collins adopted this interpretation. However, McKenna and Collins knew that the board acted in its official capacity only by a majority vote, that the board did not vote to require Turowski to obtain prior board approval before issuing the Alliance-related retroactive paychecks, and that the board disapproved of the checks after the statements were published. Thus, McKenna and Collins, as board members, were in a position to know that these statements were false.
Further, the jury could have determined that the animosity between the parties was the motivating force behind the publication of the statements. See, e.g., McNamee v. Jenkins, 52 Mass.App.Ct. 503, 507 (2001) (plaintiff's report critical of defendant's performance and work-related dispute relevant to jury's determination of actual malice). The record reflects a long-running dispute between McKenna and Collins and Turowski, in which McKenna and Collins routinely criticized Turowski's work as treasurer. The jury heard testimony that the board was in turmoil and McKenna and Collins were aligned against Turowski. Moreover, McKenna testified that his whole objective in publishing the statements was to get Turowski removed from the treasurer position. Thus, it was reasonable for the jury to conclude that McKenna and Collins published the defamatory statements with reckless disregard for the truth.
d. Damages. “Because First Amendment rights are at stake, we are not slow to pronounce a verdict excessive in defamation cases, ... even though by doing so we must necessarily substitute our assessment of reasonable damages for that of the jury.” Tosti v. Ayik, 394 Mass. at 496 (citation omitted). Many of Turowski's claimed damages are conjectural, including whether he would have remained on the board or would have been elected as treasurer of the Flagler County Association of Realtors. Accordingly, we are concerned that the jury's award of damages may have been excessive.
2. Directed verdicts. a. MBTA. Turowski argues that judge erred in directing a verdict in favor of the MBTA because, as he alleges, the MBTA allowed the defamatory statements to be transmitted via its property and allowed the statements to remain within its offices and facilities. The MBTA, however, was unaware of where the copies came from or who generated them. Further, the MBTA was not made aware of the copies until after the board voted to return the checks. Simply put, the MBTA was not in a position to know whether the statements were true or false. Thus, the judge properly directed a verdict in favor of the MBTA.
b. Alliance. The trial judge directed a verdict in favor of the Alliance. On appeal, Turowski makes a conclusory and legally unsupported argument that the Alliance is vicariously liable for the publication of the defamatory statements. “We decline to address [Turowski's] cursory and unsubstantiated argument, as it does not rise to the level of acceptable appellate argument.” Cameron v. Carelli, 39 Mass.App.Ct. 81, 86 (1995).
c. Peter St. Clair. At the close of trial, Turowski's counsel argued that there was sufficient evidence from which the jury could infer that St. Clair republished the defamatory statements. The judge disagreed and directed a verdict in favor of St. Clair. On appeal, Turowski fails to specifically address this issue. We therefore deem any argument in this regard as waived. See Driscoll v. Boston Edison Co., 25 Mass.App.Ct. 954, 954 (1988).
3. Conclusion. The order allowing McKenna's and Collins's motion for judgment notwithstanding the verdict, and the amended judgment entered thereon, are reversed. However, because the judge entered a judgment notwithstanding the verdict in favor of McKenna and Collins, it was not necessary for the judge to consider their posttrial argument on excessive damages. Given our decision and our concerns about the award, the matter is remanded for consideration of the issue, in accordance with Mass.R.Civ.P. 59(a), 365 Mass. 827 (1974). The amended judgments entered on the directed verdicts are affirmed.
So ordered.