BRIAN JOHNSON v. PETER FREI

PETERSON, J. This appeal involves an abuse of process claim. [Note 1] By way of background, Brian Johnson ("Johnson"), the town of Holland's highway surveyor, and Peter Frei ("Frei"), a Holland resident and frequent blogger, had a longstanding acrimonious relationship. The two men were constantly at loggerheads because Frei routinely criticized Johnson and some of his family members in his blog. [Note 2] For his part, Johnson regularly confronted Frei and referred to him in derogatory terms, including "scumbag" and "white trash." Their mutual enmity escalated on February 19, 2011, when Johnson, his father, and his friends were participating in an ice fishing derby on a frozen reservoir that fronts Frei's property. Johnson and his cohorts were drinking, constantly revving their four-wheelers, and even urinating on Frei's property throughout the day. The group displayed signage pointed at Frei's residence that read "EAT ME." When Frei approached Johnson and his group and requested them to leave, an altercation ensued. Johnson's father tripped Frei, and Johnson attempted to kick Frei while he was on the ground. Unbeknownst to Johnson, Frei surreptitiously recorded the fracas with his concealed iPhone.

Underlying litigation. Johnson sued Frei in the Palmer District Court, alleging that Frei violated G.L. c. 272, § 99Q, the Massachusetts wiretapping statute. Frei, in turn, filed a counterclaim against Johnson. The counterclaim included, inter alia, an abuse of process claim. [Note 3] The claims were tried before a jury in February, 2013. Before submitting the case to the jury, the trial judge allowed Johnson's motion for a directed verdict as to the abuse of process claim. The jury delivered a split verdict, awarding Johnson $100.00 on his wiretapping claim and Frei $1,500.00 on his civil rights claim. [Note 4]

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Johnson and Frei then filed cross appeals with the Appellate Division challenging various rulings by the trial judge. [Note 5] Among the rulings that Frei challenged was the trial judge's allowance of Johnson's motion for a directed verdict as to the abuse of process claim. This Appellate Division found no error and affirmed the judgments. Both parties sought further appellate review. An Appeals Court panel, in an unpublished decision, affirmed the decision and order of the Appellate Division, except for the directed verdict on Frei's abuse of process claim. [Note 6] Holding that "evidence that Johnson filed suit against Frei satisfied 'process,'" a predicate element for an abuse of process claim, the Appeals Court remanded the abuse of process claim to the trial court for further proceedings consistent with its order.

In December, 2019, Frei's abuse of process claim was retried to a jury. Frei fared no better, as the jury returned a verdict in Johnson's favor. Frei moved for a new trial, arguing that the jury's answer to special verdict questions belied unchallenged evidence that Johnson initiated "process" when he filed his original suit against Frei. After his motion for a new trial was denied, Frei filed the instant appeal.

In his third appeal, Frei challenges three separate rulings, one by the motion judge and two by the trial judge: the denial of his motion in limine to admit into evidence a so-called public education letter issued to Johnson by the Massachusetts States Ethics Commission ("SEC"); the denial of his request for particular jury instructions on the elements of abuse of process; and, finally, the denial of his motion for a new trial. We address Frei's claims in that order.

Public Education Letter. After the first trial but before the second trial, the SEC launched an investigation into allegations that Johnson and the four members of the town of Holland board of selectmen violated G.L. c. 268A, the Massachusetts conflict of interest law. [Note 7] The investigation centered on whether the town funded Johnson's private civil lawsuit against Frei and who authorized the expenditure. [Note 8]

After completing its investigation, the SEC found reasonable cause to believe that Johnson and the town's selectboard violated G.L. c. 268A. In lieu of authorizing adjudicatory proceedings, however, the SEC elected to resolve the complaint by way of the issuance of a "public education letter." In its letter dated November 30, 2015, the SEC found that Johnson, the town's "highway surveyor," was a "municipal employee" as defined by G.L. c. 268A, § 1(g). The SEC also found that Johnson, by "receiving payment of his legal fees in his private civil lawsuit for or because of his official position," violated G.L. c. 268A, § 23(b)(2)(i). [Note 9] In finding the violation as to Johnson, the SEC made subsidiary findings that the

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dispute between Johnson and Frei was a "purely private dispute steeped in mutual, longstanding apathy" and that "[t]here was no legitimate public purpose for the Town to fund Johnson's lawsuit against Frei for secretly recording Johnson."

Prior to the retrial of the abuse of process claim, Frei moved in limine to offer the "public education letter" into evidence. [Note 10] Johnson countered with his own motion in limine to exclude the letter and any reference to it during trial. [Note 11] According to the motion judge's written decision, Frei argued that the letter was relevant to his abuse of process claim "because a state agency determined that it was improper for the Town of Holland to have paid Johnson's legal fees in a private suit against Frei."

The motion judge who heard pretrial motions denied Frei's motion and allowed Johnson's motion, thereby excluding the "public education letter" from evidence. The motion judge concluded that the fact that the SEC subsequently determined that the town of Holland should not have funded Johnson's wiretapping suit against Frei was not relevant because the funding source for Johnson's suit was never part of Frei's abuse of process counterclaim.

We find no error with respect to the motion judge's order excluding the letter from evidence. As a preliminary matter, an appellate court should disturb a verdict because of the admission or exclusion of certain evidence only if the ruling "has injuriously affected the substantial rights of the parties." G.L. c. 231, § 110. Frei does not even come close to clearing this hurdle.

Second, we agree with the motion judge that the letter was not relevant. The concept of relevance has two prongs: (1) the evidence must have some tendency to prove a particular fact; and (2) the particular fact must be material to an issue in the case. Harris-Lewis v. Mudge, 60 Mass. App. Ct. 480, 485 (2004). The public education letter falters as to both prongs.

Finally, while we agree with Frei's premise that the introduction of the "public education letter" into evidence may have swayed the jury in his favor, the letter still constitutes inadmissible hearsay. We reject Frei's proposition that the letter is preclusive as to Johnson's ulterior motive for filing suit against Frei, i.e., "to stop harassment by Frei." [Note 12] Neither the doctrine of res judicata nor collateral estoppel applies to the letter for the simple reason that there was no adjudication that Johnson violated the conflict of interest laws. [Note 13] An "adjudication" is "the formal giving or pronouncing of a judgment or decree" that "implies a hearing . . ., after notice, of

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legal evidence on the factual issue(s) involved." Black's Law Dictionary 39 (5th ed. 1979), citing Genzer v. Fillip, 134 S.W. 2d. 730, 732 (Tex. Civ. App. 1939). Here, the SEC conducted an investigation into allegations that Johnson violated the conflict of interest statute.

As made clear by the letter, while the SEC found reasonable cause to believe that Johnson violated G.L. c. 268A, it stopped short of instituting any adjudicatory proceedings.

Frei's request for jury instructions. In addition to challenging the exclusion of the SEC's letter, Frei contends that the judge's instructions to the jury on the abuse of process claim were deficient as a matter of law. "A trial judge has wide discretion in framing the language of jury instructions." Sugarman & Sugarman, P.C. v. Shapiro, 102 Mass. App. Ct. 816, 821 (2023), citing Kiely v. Teradyne, Inc., 85 Mass. App. Ct. 431, 441 (2014). In that same vein, a judge is not obligated to utilize specific jury instructions requested by a party "so long as all necessary instructions are given in adequate words." Id., quoting Commonwealth v. Marrero, 427 Mass. 65, 72 (1998).

Here, it is true that the trial judge declined to give Frei's proposed abuse of process instruction verbatim. [Note 14] However, the instruction that the judge did give to the jury, which he sourced from the Massachusetts Superior Court Civil Practice Jury Instructions § 21-1 (Mass. Cont. Legal Educ. 3d 2018), is the substantial equivalent. [Note 15] More importantly, the trial judge's instruction accurately captured the three elements of an abuse of process claim as delineated by the prevailing decisional law, as well as an accurate definition of "process." We find no error with the judge's instructions as to the abuse of process claim.

Not long into their deliberations, the jury submitted a question to the judge. [Note 16] After consulting with counsel, the judge repeated the instruction he originally gave regarding the elements of abuse of process and the definition of "process," not once or even twice but three times. We also find no error with the judge's supplemental instructions.

Frei's motion for new trial. Finally, Frei contends that the trial judge erred when he denied the motion for a new trial. Frei submits that "no reasonable jury could have concluded that Johnson's civil complaint against Frei did not constitute

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process." Frei also suggests that the instructions given by the trial judge relative to abuse of process were legally insufficient and constituted prejudicial error.

To satisfy a claim of abuse of process, the evidence must establish three elements: "(1) 'process' was used; (2) for an ulterior or illegitimate purpose; (3) resulting in damage." Johnson v. Frei, 2018 Mass. App. Div. 122, 126, quoting Vittands v. Sudduth, 49 Mass. App. Ct. 401, 406 (2000). The word "process" in the context of an abuse of process claim means "causing papers to issue by a court 'to bring a party . . . within its jurisdiction.'" Silvia v. Building Insp. of W. Bridgewater, 35 Mass. App. Ct. 451, 453 n.4 (1993), quoting Jones v. Brockton Pub. Mkts., Inc., 369 Mass. 387, 390 (1975).

Here, it was uncontroverted that Johnson initiated process when he filed his original suit against Frei alleging a violation of the wiretapping statute. First, although not evidence, Johnson's counsel effectively conceded that Johnson used process during her opening statement and closing argument. [Note 17] Next, both Frei and Johnson testified about Johnson's wiretapping lawsuit against Frei and the outcome of the trial. Third, Frei offered Johnson's complaint into evidence without objection. Therefore, we can say with reasonable confidence that the jury misunderstood the applicable law as to what constitutes "process" for the purposes of an abuse of process claim.

Massachusetts R. Civ. P. 59(a) governs a motion for new trial following a jury trial. The rule states in pertinent part that "[a] new trial may be granted to all or any of the parties and on all or part of the issues . . . for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the Commonwealth." Mass. R. Civ. P. 59(a)(1). It is well settled that an appellate court's review on appeal from the denial of a motion for a new trial is confined to whether the trial judge abused his discretion. Fyffe v. Massachusetts Bay Transp. Auth., 86 Mass. App. Ct. 457, 471 (2014) ("We show great deference to the view taken by the trial judge in denying a new trial motion when the argument on appeal is based on the weight of the evidence . . . .").

In Wahlstrom v. JPA Mgt. Co., 95 Mass. App. Ct. 445 (2019), the Appeals Court clarified the standard for a trial judge to apply when considering a motion for a new trial pursuant to Mass. R. Civ. P. 59(a). It is not enough for the moving party to show that the jury's verdict belied uncontested evidence. Rather, "the judge should not take it upon himself to nullify a jury's verdict by granting a new trial unless it appears on a survey of the whole case that otherwise a miscarriage of justice would result." Id. at 447, quoting Evans v. Multicon Constr. Corp., 6 Mass. App. Ct. 291, 295 (1979).

While we agree that the jury's answer to the first special question was patently inconsistent with the evidence, we nonetheless decline to reverse the trial judge and grant Frei a new trial. Upon review of Frei's motion for a new trial, the judge's written decision denying same, and the transcript of the trial, we are confident that the trial judge applied the correct standard. Furthermore, we agree with his penultimate finding that the jury's finding that Johnson did not use process, when considered against the backdrop of the "whole case," did not result in a miscarriage of justice.

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As the judge articulated in his decision, several facts militate against nullifying the jury's verdict and granting Frei a new trial. First, Johnson had a bona fide reason to file the suit against Frei. Johnson averred that Frei violated the wiretapping statute, and a jury agreed. We think this uncontested evidence alone was enough to preempt Frei's abuse of process claim. Next, the evidence that Frei offered to prove the second element (i.e., an ulterior motive or illegitimate purpose) was lackluster at best and, in our estimation, fell markedly short of the "preponderance of the evidence" standard. Outside of Frei's self-serving testimony, the only source of evidence as to the second element was the testimony of Frei's girlfriend, Diana Manning ("Manning"). While Manning testified that Johnson's ulterior motive in filing the wiretapping claim was "to shut down [Frei's] blog," her testimony during cross-examination undermined this claim. Specifically, Manning conceded that Frei started blogging about Johnson in 2009 but Johnson did not file his wiretapping lawsuit until June, 2011, after Frei secretly recorded Johnson. Finally, Frei's own trial testimony during cross-examination torpedoed his abuse of process claim. Frei conceded that he broke the law when he covertly recorded Johnson with his iPhone, which legitimized Johnson's wiretapping claim. Worse yet, Frei agreed with Johnson's counsel that the jury verdict in Johnson's favor foreclosed his abuse of process counterclaim. [Note 18] While Frei's counsel attempted to rehabilitate Frei, the damage was done.

Finally, Frei also suggests that the trial judge's jury instruction on the abuse of process claim constituted prejudicial error. As the Appeals Court noted in the Wahlstrom case, the Fyffe case "explicated an appellate standard of review, the prejudicial error standard." Wahlstrom, supra at 449. When, as here, the appellant appeals a judgment because of the trial judge's instructions, or lack thereof, "the deferential standard applicable to review of the new trial motion does not relieve [an appellate court] of the duty to examine the record to determine whether instructions that are given or not given amounted to an error of law, and to assess whether the error was prejudicial." Fyffe, supra at 471.

If there was an error with the jury instructions, it was the fact that the trial judge instructed the jury on the "process" element in the first place. Consistent with the Appeals Court's unpublished decision, the judge should have advised the jury that Johnson's complaint for violation of the wiretapping statute was not disputed by Johnson and satisfied the "process" element as a matter of law. As the Appeals Court panel stated, "Here, evidence that Johnson filed suit against Frei satisfies the 'use of process' element." Johnson, supra. This was, as Frei aptly points out, the "law of the case" upon remand to the trial court.

Based on the record before us, we are unable to find as a matter of law that the judge's instructions constituted prejudicial error. Although judges play an integral role in fashioning jury instructions that comport with the evidence and the applicable law, counsels' role in this regard is equally important.

Despite the Appeals Court having ruled in his favor, Frei, inexplicably, did not request the trial judge to instruct the jury that Johnson's wiretapping action satisfied the "process" element as a matter of law. Even more mystifying, Frei's own

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proposed instruction on abuse of process included all three elements, as well as a definition of "process." Because Frei did not ask the judge to inform the jury that Johnson's wiretapping action satisfied the "process" element as a matter of law and because his own proposed jury instructions included the "process" element, the trial judge's instructions did not yield any prejudicial error.

For the foregoing reasons, the judgment is affirmed.