2016 Mass. App. Div. 122

March 27, 2015 - October 20, 2016

Appellate Division Western District

Court Below: District Court, Palmer Division

Present: Noonan, Despotopulos & McGill, JJ.

Judgment entered in Palmer District Court by Poehler, J. [Note 1]

Tani E. Sapirstein for the plaintiff.

Peter Frei, pro se.

MCGILL, J. The plaintiff, Brian Johnson ("Johnson"), is the highway surveyor, an elected position, in the town of Holland. The defendant, Peter Frei ("Frei"), is a resident of the town who operates a blog, on which he posts, among other things, his commentary on town politics and elected officials. Following a confrontation between the parties on the day of the town's annual ice fishing derby on February 19, 2011 on a frozen lake in front of Frei's house, Frei sought a G.L. c. 258E harassment prevention order against Johnson in March, 2011. After extensive hearing, the court denied the application, finding that Frei was not, in fact, intimidated by Johnson. Johnson thereafter brought the instant action against Frei, in June, 2011, for a violation of G.L. c. 272, § 99 Q, the Massachusetts wiretapping statute ("wiretapping statute"). Frei filed multiple counterclaims, one of which was an allegation of violation of the Massachusetts Civil Rights Act, G.L. c. 12, § 11I ("MCRA"). The jury returned a verdict in favor of Johnson on the wiretapping claim, awarding $100.00 pursuant to special verdict slip questions. The jury also awarded Frei $1,500.00 on his civil rights violation counterclaim pursuant to special verdict slip questions. [Note 2] Both pretrial and posttrial well-reasoned, written memoranda of decisions and orders issued by the trial judge addressed the legal disputes raised on appeal by both parties. We find no error.

1. Johnson argues that the court erred in denying his motion for judgment notwithstanding the jury's verdict in favor of Frei on his counterclaim for a civil rights violation on the ground of insufficiency of the evidence. To determine the correctness of the trial judge's denial, we analyze "whether 'anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of [Frei].'" Boothby v. Texon, Inc., 414 Mass. 468, 470 (1993), quoting Dobos v. Driscoll, 404 Mass. 634, 656 (1989). "The evidence is reviewed in the light most favorable to [Frei], 'without weighing the credibility of the witnesses or otherwise considering the weight of the evidence.'" Haddad v. Wal-Mart Stores, Inc., 455 Mass. 91, 94 n.5 (2009), quoting Tosti v. Ayik, 394 Mass. 482, 494 (1985), S.C., 400 Mass. 224 (1987). According to the MCRA, "[a]ny

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person whose exercise or enjoyment of rights secured by the constitution or laws of the United States, or of rights secured by the constitution or laws of the commonwealth, has been interfered with, or attempted to be interfered with" may file a civil action for injunctive relief and other appropriate equitable relief, including the award of compensatory damages. G.L. c. 12, § 11I. An aggrieved person who prevails on such claim is also entitled to the award of the costs of the litigation and reasonable attorney's fees. Id.

"To establish a claim under the [MCRA], [an individual] must prove 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). A threat is the intentional exertion of pressure to make another fearful or apprehensive of injury or harm. Haufler v. Zotos, 446 Mass. 489, 505 (2006). Intimidation is putting another person in fear for the purpose of compelling or deterring conduct. Id. Coercion is to exert force, either physical or moral, in order to constrain another person to do something he would not have otherwise done. Id. It must be shown that a reasonable person would believe that the conduct would interfere with a person's exercise or enjoyment of certain civil rights. See Planned Parenthood League of Mass., Inc. v. Blake, 417 Mass. 467, 475 (1994) (Planned Parenthood).

The trial judge correctly instructed the jury that if they found that Johnson violated the MCRA, then Frei was entitled to compensatory damages. Further, there was sufficient evidence that would warrant a jury to find that Johnson's conduct threatened Frei's ability to post articles on his blog and therefore interfered with the exercise of his constitutional right of free speech. There was evidence that Johnson, alone and in a group, participated in threats and actions that would intimidate a reasonable person from exercising his right of free speech. Frei testified that over the course of some four years, he posted numerous items on his blog regarding Johnson and his family, including an alleged illegal land transaction by Johnson's father, a town selectman; Johnson's and his department's alleged violation of the Wetlands Protection Act; Johnson's alleged use of town equipment for personal use; and Johnson's alleged hiring of an improperly licensed driver. During this span, Johnson would confront Frei, asking him, at one point after the posting regarding his father, "why don't you cut out that bullshit, you know, on your blog," and on other occasions calling Frei demeaning names, like "white trash" and "loser" and "scum bag." Frei further testified that, on the day of the fishing derby on February 19, 2011, Johnson and other members of the highway department drilled their holes on that part of the lake directly in front of Frei's house, and that Johnson and his friends were drinking, driving and revving four-wheelers (one of which had a sign facing Frei's house that stated, "Eat Me"), and urinating on his property throughout the day. Finally, he testified that when he approached the group, he was tripped by Johnson's father-in-law, and while he was still on the ground, Johnson commenced a movement so as to kick him in the head, though he did not complete the kick because Frei informed the group he was recording the incident. The jury would be warranted in a finding that the conduct of Johnson was threatening and intimidating in nature towards Frei regarding blog posts in violation of the MCRA. There was no error on the sufficiency of the evidence.

2. Johnson next argues that the court erred in allowing Frei's motion in limine to preclude admission of the court's decision in the prior G.L. c. 258E proceeding between the parties. Specifically, Johnson argues that the court's finding, in the context of the c. 258E proceeding, that Frei was not intimidated by Johnson precluded a later claim by Frei for a

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civil rights violation, where Frei could have and should have brought that claim in the c. 258E proceeding. Johnson also argues that the court's finding that Frei was not intimidated, in the context of the G.L. c. 258E proceeding, was preclusive on the issue of intimidation in Frei's subsequent counterclaim for a civil rights violation.

The generic term, "res judicata," the preclusive effect of a prior adjudication, encompasses the specific judicial doctrines of "issue preclusion" and "claim preclusion." See Bagley v. Moxley, 407 Mass. 633, 636 (1990).

"The doctrine of res judicata provides that 'a judgment in one action has a binding effect in and effectively bars another action.' Loguidice v. Passalacqua, 1992 Mass. App. Div. 210, citing Heacock v. Heacock, 402 Mass. 21, 23 n.2 (1988). It is a doctrine of claim and issue preclusion. Hoch v. Porrazzo, 2005 Mass. App. Div. 61. Claim preclusion bars the relitigation of claims in a subsequent suit when there is '(1) the identity or privity of the parties to the present and prior actions; (2) identity of the cause of action; and (3) prior final judgment on the merits.' Id., quoting Bui v. Ma, 62 Mass. App. Ct. 553, 561 (2004). Issue preclusion, also known as 'collateral estoppel,' bars the relitigation of an issue when 'the same issue arises in a later action, based on a different claim, between the same parties or their privies,' Heacock, supra at 23 n.2, and the determination of the issue was essential to the decision in the earlier action. Day v. Kerkorian, 61 Mass. App. Ct. 804, 808-809 (2004). The party asserting res judicata has the burden of establishing the elements of claim or issue preclusion. Doyle [v. Baltaks], [ 2007 Mass. App. Div. 43,] 44."

Financial Planning Alternatives, Inc. v. De Lage Landen Fin. Servs., Inc., 2012 Mass. App. Div. 132, 134.

The doctrine of claim preclusion makes a valid, final judgment conclusive on the parties and their privies, and bars further litigation of all matters that were or should have been adjudicated in the action on the claim. Heacock, supra at 23. Claim preclusion requires a showing that the party to be precluded from the action has had the incentive and opportunity to litigate the matter fully in the first lawsuit and should not be allowed to relitigate the same claim in the future. Id. at 24. On the issue of claim preclusion, Johnson has pointed us to no case in which an appellate court has sanctioned the use of claim preclusion to prevent a harassment-prevention-order applicant from bringing a subsequent civil rights claim against the alleged harasser -- a proposition that runs contrary to the statute. See G.L. c. 258E, § 3(g) ("An action commenced under this chapter shall not preclude any other civil or criminal remedies.").

In terms of issue preclusion, Johnson failed to show anything, other than conclusory statements, regarding the evidence and documentation, such as the prior G.L. c. 258E harassment affidavits, complaint, transcript, or submitted certified documentary evidence from the harassment order hearing, at the jury trial session in this case. There was no substantial showing, in limine, that the same sets of facts or law were present in both proceedings. In particular, Johnson did not prove the third element of issue preclusion, which requires a prior adjudication that is identical to the issue in the current adjudication, and was essential to the earlier judgment. See TLT Constr. Corp. v. A. Anthony Tappe & Assocs., Inc., 48 Mass. App. Ct. 1, 5 (1999). See also Wright Mach. Corp. v. Seaman-Andwall Corp., 364 Mass. 683, 688 (1974). The trial judge in the instance action correctly ruled: "I don't know that

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he has to prove that he actually was intimidated but rather that the actions were designed to intimidate." See Planned Parenthood, supra at 474-475 (holding that trial court correctly applied objective standard of whether reasonable woman seeking abortion services would be threatened, intimidated, or coerced by the defendants' conduct), citing Commonwealth v. DeVincent, 358 Mass. 592, 593 (1971) ("the threat is to be tested objectively; the state of mind of the person threatened is not controlling").

3. Johnson finally argues that the court abused its discretion in granting Frei $16,024.65 in attorney's fees related to his counterclaim for a civil rights violation on the grounds that the award is disproportionate to the $1,500.00 damages award on this counterclaim and that Frei's trial attorney failed to maintain his time records properly. The first ground is without merit. See Jones v. Gangi Printing, Inc., 2016 Mass. App. Div. 38, 39 (stating, in context of evaluating fee request pursuant to statutory award under lodestar method, "When a litigant's victory, although minor as to the extent of relief, represents a significant legal issue serving an important public purpose, the fee award need not be proportionate to the damages recovered."). Regarding the second ground, although we have in the appellate record the trial court's decision on the fee award, in which she applies the lodestar method, Johnson has not included the several motions and affidavits submitted by Frei's counsel, to which the court's decision makes reference. Given this failure, we find no error.

4. For his part, Frei argues that the court erred in denying his motion for judgment notwishstanding the jury's verdict for Johnson on his claim for violation of the wiretapping statute. A private person is prohibited from secretly recording a conversation under the wiretapping statute. O'Sullivan v. NYNEX Corp., 426 Mass. 261, 263 (1997). The wiretapping statute was enacted to prohibit the unrestricted use of modern intelligence equipment to monitor and intercept communications between parties. G.L. c. 272, § 99 A. Interception is defined as securing the means to secretly hear, secretly record, or providing aid to an individual with the intention of secretly hearing or recording an oral conversation with a device by any person who has not been given authority to do so. G.L. c. 272, § 99 B 4. See Commonwealth v. Tavares, 459 Mass. 289, 296 (2011). A citizen may not be surreptitiously wiretapped unless law enforcement officials have met the evidence burden to show that there is a suspicion that the individual is committing an offense. Id. at 302. Although the wiretapping statute allows law enforcement to wiretap suspects, the statute protects citizens from unjustified and overbroad intrusions on privacy rights. Commonwealth. v. Vitello, 367 Mass. 224, 231 (1975). If there was a violation of the wiretapping statute by a private citizen, then

"[a]ny aggrieved person whose oral or wire communications were intercepted, disclosed or used except as permitted or authorized by this section or whose personal or property interests or privacy were violated by means of an interception except as permitted or authorized by this section shall have a civil cause of action against any person who so intercepts, discloses or uses such communications or who so violates his personal, property or privacy interest, and shall be entitled to recover from any such person -

1. actual damages but not less than liquidated damages computed at the rate of $100 per day for each day of violation or $1000, whichever is higher;

2. punitive damages; and

3. a reasonable attorney's fee and other litigation disbursements reasonably incurred. Good faith reliance on a warrant issued under this section shall constitute a complete defense to an action brought under this paragraph."

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G.L. c. 272, § 99 Q.

In this case, Frei admitted that he recorded Johnson without his permission with a secret recording device, which was not visible. Frei used an iPhone to intercept and record an oral conversation between the parties without consent. The jury was warranted in a finding that this action was a violation of the law.

5. Frei disputes the amount of damages in his cross appeal. He argues that Johnson should not have been awarded attorney's fee damages since the town of Holland paid for the attorney, so that Johnson is not an "aggrieved person" under the statute, a requirement in order to award damages. G.L. c. 272, § 99 B 6 ("The term 'aggrieved person' means any individual who was a party to an intercepted wire or oral communication or who was named in the warrant authorizing the interception, or who would otherwise have standing to complain that his personal or property interest or privacy was invaded in the course of an interception."). However, since Frei testified that he actually violated the statute and the jury found that he violated the statute, Johnson is an aggrieved person who may be awarded damages. See Torres v. Attorney Gen., 391 Mass. 1, 15 (1984).

6. Frei also asserts on appeal that the attorney's fees computation, pursuant to his counterclaim for a civil rights violation, improperly excluded activity spent on his other unsuccessful counterclaims. As previously stated, neither party included in the appendix or supplemental appendix Frei's attorney's several motions for attorney's fees and affidavits that the trial judge reviewed in making her decision on attorney's fees. Nevertheless, we note that the trial judge in her decision correctly states that a judge must use considered discretion in determining the amount of damages to be awarded by examining the case, issues, time and labor, amount of damages involved, and the attorneys themselves. The judge's discretion in reducing the amount of awarded damages was fair and impartial based on the statute and case law.

7. Frei argues that the court erred in allowing Johnson's motion for directed verdict on Frei's counterclaim for abuse of process. "The essential elements of the tort of abuse of process are '(1) "process" was used; (2) for an ulterior or illegitimate purpose; (3) resulting in damage.'" Vittands v. Sudduth, 49 Mass. App. Ct. 401, 406 (2000), quoting Kelley v. Stop & Shop Cos., 26 Mass. App. Ct. 557, 558 (1988). For purposes of an abuse of process claim, a plaintiff acts with improper motive where the plaintiff acts "'primarily for a purpose other than that of properly adjudicating' the claim." Sklar v. Beth Israel Deaconess Med. Ctr., 59 Mass. App. Ct. 550, 557 (2003), quoting G.S. Enters., Inc. v. Falmouth Marine, Inc., 410 Mass. 262, 273 (1991). See Restatement (Second) of Torts § 674 (1977). As there was no evidence that Johnson's complaint for violation of the wiretapping statute was brought for an ulterior or illegitimate purpose, the court did not err in granting a directed verdict for Johnson on Frei's counterclaim for abuse of process.

8. Finally, Frei argues that the trial court erred in denying his motion for sanctions against Johnson's attorney for violation of Mass. R. Civ. P. 11. In particular, Frei asserts that Johnson's attorney, in her opposition to Frei's motion to dismiss Johnson's complaint under the wiretapping statute, violated Rule 11 by citing to the Supreme Judicial Court's analysis of the wiretapping statute in the context of a criminal case in Commonwealth v. Hyde, 434 Mass. 594 (2001). We summarily reject Frei's argument as without merit. [Note 3]


[Note 1] The Honorable Patricia T. Poehler recused herself from this appeal, and did not participate in its hearing, review, or decision.

[Note 2] The counterclaim special verdict slip was not included in the appendix. The trial transcript, however, reflects questions and answers by the jury.

[Note 3] We likewise deny Frei's motion to this Division for sanctions against Johnson's attorney for legal arguments made in counsel's appellate brief.