author: WENDLANDT, J.

text:
    Jon BUTCHER v. UNIVERSITY OF MASSACHUSETTS & others.
    No. 17-P-161
    Appeals Court of Massachusetts, Suffolk..
    Argued April 11, 2018 Decided September 17, 2018
    Jon Butcher, pro se.
    Jean M. Kelley, Shrewsbury, for the defendants.
    Present: Milkey, Maldonado, & Wendlandt, JJ.

      Keith Motley, Winston Langley, Patrick Day, James Overton, Donald Baynard, Paul Parlon, Shira Kaminsky, Paul Driskill, Cady Vishniac, and Brian Forbes.

   WENDLANDT, J.

This case presents the issue whether, in the absence of any official government action, the fair reporting privilege extends to a newspaper's publication of a witness's statement to police. The plaintiff, Jon Butcher, filed this defamation action against the University of Massachusetts (UMass), a number of its employees (university defendants), and other individuals associated with its student newspaper (newspaper defendants), after the newspaper published articles reporting that he allegedly had taken photographs of women without their permission on the campus of the University of Massachusetts-Boston (UMB). We hold that, prior to the commencement of official police action, the newspaper's publication of a witness's allegations to police officers was not protected by the fair reporting privilege. We thus reverse the Superior Court judge's allowance of summary judgment as to Butcher's defamation claim against the defendant Cady Vishniac. We also reverse the allowance of summary judgment on Butcher's intentional infliction of emotional distress claim against Vishniac. We otherwise affirm the judgment.

Background. "We recite the facts in the light most favorable to the plaintiff." Ravnikar v. Bogojavlensky, 438 Mass. 627, 628, 782 N.E.2d 508 (2003). The allegedly defamatory publications concern an incident -- the details of which are disputed -- that took place at the John F. Kennedy Massachusetts Bay Transportation Authority station (JFK station) on the morning of March 13, 2013. At the time, Butcher worked as a security engineer in the information technology department at UMB, and regularly rode a shuttle bus from JFK station to campus.

That morning, the records of the UMB police department reflect that a UMB police officer responded to a report of suspicious activity that had taken place at JFK station. The officer arrived at the UMB campus and met with a bus driver for the private company that provided the shuttle service. The bus driver stated that he had observed Butcher taking photographs of women on the bus. The bus driver explained that he confronted Butcher, and Butcher responded by attempting to hide his face with a newspaper. Before exiting the bus, Butcher photographed the bus driver, and the bus driver photographed Butcher. The bus driver sent the officer his photograph of Butcher.

Following this report, Butcher, under the assumed name "Eric Jones," sent an electronic mail message (e-mail) to the UMB public safety department regarding the incident, and provided a different version of events. In the e-mail, Butcher indicated that the bus driver had falsely accused him of taking photographs of people on the bus, and then had become very hostile toward him. Butcher explained that the bus driver began taking photographs of him and then physically blocked him when he tried to exit the bus. Butcher stated that he took photographs of the bus driver so that he could report the incident.

Sometime after the UMB officer met with the bus driver, the UMB student newspaper published an excerpt from the UMB police blotter regarding the incident:

"A suspicious white male in a black jacket took photographs and video of nearby women, as well as some buildings on campus. A witness stated that the party did not appear to be a student and was not wearing a backpack. The witness snapped a photograph of the suspect and shared that photograph with Campus Safety[.] Officers tried to locate the suspect at JFK/UMass Station, but could not find him."

Subsequently, on March 25, 2013, the newspaper published an article on its Web site, accompanied by a photograph of Butcher provided by the shuttle bus company, and a headline above the photograph stating, "Have You Seen This Man?" The article provided additional details regarding the incident covered in the police blotter:

"On the morning of March 13, the man in the photograph allegedly walked around the UMass Boston campus snapping pictures of female members of the university community without their permission. According to the student who reported him, he did not appear to be a student as he was not carrying a backpack. If you see him, please call Campus Safety at 617-287-7780."

Additionally, in its March 26 through April 9 print version, the newspaper published the same article as the one appearing on the Web site, this time accompanied by two photographs of Butcher, under the same headline, "Have You Seen This Man?"

According to UMB police records, on March 27, after publication of these articles, two of the named university defendants, Detective Paul Parlon and Captain Donald Baynard of the UMB police department, met with Butcher to discuss the incident at JFK station. When they informed him that the UMB student newspaper had published his image along with the above described allegations, he became incensed. They then asked him whether he had taken photographs at the JFK station, to which he responded, "I take pictures of everything. I was taking pictures of the amount of buses and the structural area." He further stated that on that day he had been photographing "the sun and the flowers or something." He also explained that he had sent his earlier e-mail using the Eric Jones alias because he values his privacy, did not want to create problems at his workplace, and wanted to remain anonymous. At the conclusion of the meeting, Baynard and Parlon took possession of Butcher's UMass cellular telephone (cell phone) over Butcher's protests. Examination of the "Micro SD card" from the cell phone did not reveal any photographs of women from the day of the incident at the JFK station. The only photographs from that day were of buses and bus drivers at the JFK station.

In the months following the newspaper's publication of the above described articles, Butcher became distressed as he believed that he faced hostility on campus. He believed that people he passed on campus stared at him with fear and loathing. He also began walking from the JFK station to campus instead of taking the shuttle because the bus drivers would stare at him and kept copies of the newspaper articles regarding Butcher open on their dashboards. The campus environment made him fear both for his safety, and for the safety of his family.

Additionally, Butcher faced negative consequences at his workplace in the UMB information technology department. His relationship with the defendant Brian Forbes, his supervisor, deteriorated after the publications. For example, he was no longer given the opportunity to attend trainings regarding campus network security and implementation of new campus technology, and he was also removed from ongoing information technology department projects. In addition, he was given a higher volume of low-level assignments, including being tasked with responding to simple computer security inquiries from campus employees. Eventually, the stress, fear, and negative work environment caused Butcher to decide to leave his job, forfeiting his pension and benefits package. Although his current salary is higher than at UMB, he has less paid vacation time, sick time, and personal days.

Procedural history. In January, 2014, Butcher filed the present action in Superior Court, asserting six claims arising from the aforementioned publications: (1) defamation (against all defendants); (2) "declaratory judgment" (against all defendants); (3) "direction under false pretense" (against Forbes); (4) "illegal seizure without probable cause" (against Baynard and Parlon); (5) workplace retaliation (against Forbes); and (6) "emotional distress" (against all defendants). A Superior Court judge allowed the defendant Patrick Day's motion to dismiss as to all counts of the complaint, describing Day's motion as "without opposition"; allowed UMass's and the university defendants' motion to dismiss as to all counts except the claim for intentional infliction of emotional distress; and allowed Vishniac's motion to dismiss as to all counts except the defamation and intentional infliction of emotional distress claims. A different Superior Court judge then allowed the remaining defendants' motion for summary judgment on the remaining counts, and entered final judgment for all the defendants.

Discussion. We review the motion judge's allowance of summary judgment de novo to determine whether "there is [a] genuine issue as to any material fact ... and the moving party is entitled to judgment as a matter of law" (quotation omitted). Dulgarian v. Stone, 420 Mass. 843, 846, 652 N.E.2d 603 (1995). See Mass. R. Civ. P. 56 (c), 365 Mass. 824 (1974). "The party moving for summary judgment in a case in which the opposing party will have the burden of proof at trial is entitled to summary judgment if he demonstrates ... that the party opposing the motion has no reasonable expectation of proving an essential element of that party's case" (quotation omitted). Dulgarian, 420 Mass. at 846, 652 N.E.2d 603.

1. Defamation. To establish a claim for defamation, a plaintiff must prove four elements: (1) the defendant made a false statement to a third party, (2) of or concerning the plaintiff, (3) that was capable of damaging the plaintiff's reputation in the community and that caused the plaintiff economic loss or is actionable without proof of economic loss, and (4) the defendant was at fault. See Ravnikar, 438 Mass. at 629-630, 782 N.E.2d 508. Disposing of a plaintiff's case at the summary judgment stage is "especially favored" in the defamation context because "[a]llowing a trial to take place in a meritless case would put an unjustified and serious damper on freedom of expression.... Even if a defendant in a libel case is ultimately successful at trial, the costs of litigation may induce an unnecessary and undesirable self-censorship." Dulgarian, 420 Mass. at 846-847, 652 N.E.2d 603, quoting King v. Globe Newspaper Co., 400 Mass. 705, 708, 512 N.E.2d 241 (1987), cert. denied, 485 U.S. 940, 108 S.Ct. 1121, 99 L.Ed.2d 281 and 485 U.S. 962, 108 S.Ct. 1227, 99 L.Ed.2d 427 (1988). Despite these policy concerns, however, defendants in defamation cases still must "meet the usual burden under [ Mass. R. Civ. P. 56 ] of demonstrating by evidence 'considered with an indulgence in the plaintiff's favor' the absence of disputed issues of material fact and their entitlement to judgment as a matter of law." Salvo v. Ottaway Newspapers, Inc., 57 Mass. App. Ct. 255, 259, 782 N.E.2d 535 (2003), quoting Mulgrew v. Taunton, 410 Mass. 631, 633, 574 N.E.2d 389 (1991).

Butcher's defamation claim rests on essentially two publications by the UMB student newspaper: (i) the excerpt from the police blotter, and (ii) the articles accompanied by the photograph(s) of him that were published on the newspaper's Web site and in its print edition. He argues that these publications damaged him by falsely branding him as a sexual predator and, thus, subjected him to a campus and work environment that was so hostile that he was forced to leave.

a. Police blotter. With regard to the excerpt from the police blotter, Butcher's claim fails as a matter of law because this excerpt bears no indication that it was "of or concerning" Butcher. The only information identifying the individual referred to in the excerpt was that it was "[a] suspicious white male in a black jacket ... [who] did not appear to be a student and was not wearing a backpack." Without more, these "words [cannot] reasonably ... be interpreted to refer to the plaintiff." New England Tractor-Trailer Training of Conn., Inc. v. Globe Newspaper Co., 395 Mass. 471, 479, 480 N.E.2d 1005 (1985).

b. Articles with photographs. We turn next to Butcher's claim regarding the articles accompanied by his photographs. Vishniac argues that Butcher cannot show an actionable false statement. Butcher makes two distinct claims regarding the falsity of the statements made in the published articles. We address each in turn.

i. Inaccurately reporting the witness's statements. First, Butcher contends that the articles inaccurately reported the contents of the police reports of the underlying witness allegations. While there are discrepancies between the police records and the newspaper articles, the articles were "substantially true" accounts of the contents of the police reports. Reilly v. Associated Press, 59 Mass. App. Ct. 764, 770, 797 N.E.2d 1204 (2003). The essence of Butcher's defamation claim is that the articles stigmatized him as a sexual predator by reporting that he had suspiciously taken photographs of women without their permission. The portion of the reporting that was inaccurate relative to the police records -- that it was a student, rather than a bus driver, who reported him, and that he took pictures on the campus as opposed to a shuttle bus -- "did not create a substantially greater defamatory sting than [the] accurate report." Jones v. Taibbi, 400 Mass. 786, 795, 512 N.E.2d 260 (1987).

ii. Fair report privilege. Second, Butcher maintains that the underlying witness allegations were themselves false. Vishniac responds only that the newspaper's publications are protected under the fair report privilege because they communicated the witness statements included in the UMass police blotter.

The fair report privilege protects publications that "fairly and accurately report certain types of official or governmental action" even where the facts underlying the official action are defamatory. ELM Med. Lab., Inc. v. RKO Gen., Inc. 403 Mass. 779, 782, 532 N.E.2d 675 (1989). "For example, '[t]he publication of the fact that one has been arrested, and upon what accusation, is not actionable, if true," even where the accusations turn out to be false.

Jones, 400 Mass. at 795, 512 N.E.2d 260, quoting Thompson v. Globe Newspaper Co., 279 Mass. 176, 188, 181 N.E. 249 (1932). This privilege is grounded in the policy that "(1) the public has a right to know of official government actions that affect the public interest, (2) the only practical way many citizens can learn of these actions is through a report by the news media, and (3) the only way news outlets would be willing to make such a report is if they are free from liability, provided that their report was fair and accurate." Yohe v. Nugent, 321 F.3d 35, 44 (1st Cir. 2003), quoting ELM Med. Lab., Inc., 403 Mass. at 782, 532 N.E.2d 675.

Here, the police made no arrest, no formal charges were filed, there was no official police statement, and no search warrant was issued. In these circumstances, the Supreme Judicial Court has explained that " 'statements made ... by the complainant or other witnesses ... as to the facts of the case or the evidence expected to be given are not yet part of the judicial proceedings or of the arrest itself and are not privileged ....' Restatement (Second) of Torts § 611 comment h (1977). Accordingly, '[t]here is also no privilege to report the unofficial talk of such officials as policemen, as distinct from their official utterances or acts, such as an arrest' .... W. Prosser & W. Keeton, [Torts § 112,] at 836 [ (5th ed. 1984) ]." Jones, 400 Mass. at 796, 512 N.E.2d 260. Thus, the fair report privilege "does not apply to witness statements to police, whether appearing in an official police report or not, where no official police action is taken." Reilly, 59 Mass. App. Ct. at 776, 797 N.E.2d 1204. Such unconfirmed allegations have "neither the authority nor the importance to the public that other documents or statements shielded by the fair reporting privilege possess." Id. Extending the privilege to a witness's allegations merely because they appear in a police blotter does not further the doctrine's purpose of allowing the public to learn of official actions affecting the public interest. See id. at 777, 797 N.E.2d 1204. See also Phillips v. Evening Star Newspaper Co., 424 A.2d 78, 89 (D.C. 1980) (reporting on events documented in police activity log not privileged because, where there was no arrest, log did not "carry the dignity and authoritative weight as a record for which the common law sought to provide a reporting privilege"). Contrast Medico v. Time, Inc., 643 F.2d 134, 141-142 (3d Cir. 1981) (allegations in nonpublic, but official, Federal Bureau of Investigation investigatory reports submitted by Philadelphia field office qualified for privilege). In the circumstances of this case, the privilege does not apply.

iii. Damages. Vishniac alternatively contends that summary judgment was proper because Butcher has no reasonable expectation of proving at trial that he has suffered a cognizable harm. "Damages in a defamation case are limited to actual damages, which are compensatory for the wrong that has been done." Draghetti v. Chmielewski, 416 Mass. 808, 815, 626 N.E.2d 862 (1994). These damages include "not only out-of-pocket expenses, but also harm inflicted by impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering." Id. at 815-816, 626 N.E.2d 862, citing Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 861, 330 N.E.2d 161 (1975). When there is evidence of mental suffering, "the plaintiff is entitled to recover for the 'distress and anxiety which may have been the natural result of the legal wrong.' " Shafir v. Steele, 431 Mass. 365, 373, 727 N.E.2d 1140 (2000), quoting Markham v. Russell, 12 Allen 573, 575, 94 Mass. 573 (1866).

The record is sufficient to allow the trier of fact to reasonably conclude that Butcher has suffered actionable harm. Butcher testified that, after the articles were published, he faced a hostile campus that caused him mental distress and made him fear for his safety and the safety of his family. He also testified that, as a consequence of the articles, he lost the trust of his supervisor in the information technology department, and he was thus given less responsibility and handed a higher volume of lower-level work. He testified that he was compelled to leave his job, forfeiting a pension and benefits package. These harms stem from the defamatory publication that branded him a possible sexual predator to the campus community. Thus, Butcher has provided sufficient evidence of mental suffering, reputational harm, and economic loss to sustain an actionable claim for defamation. See Draghetti, 416 Mass. at 816, 626 N.E.2d 862 (sustaining jury award of damages to plaintiff where he testified that he suffered emotional distress, was ridiculed at work, and had marital problems due to defendant's defamation).

2. Intentional infliction of emotional distress. Butcher's intentional infliction of emotional distress claim is premised on the same factual bases as his defamation claim. To sustain such a claim, a plaintiff must prove "(1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous, was beyond all possible bounds of decency and was utterly intolerable in a civilized community; (3) that the actions of the defendant were the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe and of a nature that no reasonable man could be expected to endure it" (citations and quotations omitted). Agis v. Howard Johnson Co., 371 Mass. 140, 144-145, 355 N.E.2d 315 (1976). A plaintiff faces a high burden in making a claim of intentional infliction of emotional distress; "[l]iability cannot be predicated on 'mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.' " Tetrault v. Mahoney, Hawkes & Goldings, 425 Mass. 456, 466, 681 N.E.2d 1189 (1997), quoting Foley v. Polaroid Corp., 400 Mass. 82, 99, 508 N.E.2d 72 (1987).

Putting, as we must, "as harsh a face on [Vishniac's] actions ... as the basic facts would reasonably allow," Richey v. American Auto. Ass'n, Inc., 380 Mass. 835, 839, 406 N.E.2d 675 (1980), a trier of fact could reasonably find that the publication both online and in print of Butcher's photographs alongside allegations that he was surreptitiously photographing women on campus was "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Restatement (Second) of Torts § 46 comment d (1965). See Tech Plus, Inc. v. Ansel, 59 Mass. App. Ct. 12, 26, 793 N.E.2d 1256 (2003) (jury permitted to find extreme and outrageous conduct where defendant made multiple statements to his colleagues that plaintiff, fellow colleague, had engaged in anti-Semitic and homophobic behavior in the past).

Conclusion. So much of the judgment as relates to the defamation and intentional infliction of emotional distress claims against Vishniac is reversed. In all other respects, the judgment is affirmed.

So ordered.

      The newspaper defendants are Shira Kaminsky, Paul Driskill, and Cady Vishniac. The defendants assert that Butcher's claims against Kaminsky and Driskill have been dismissed because they were not served with the summons and complaint. The Superior Court docket reflects neither any proof of service nor a dismissal as to Kaminsky and Driskill. On appeal, Butcher does not address the status of service as to them. Pursuant to Mass. R. Civ. P. 4 (j), as appearing in 402 Mass. 1401 (1988), the time limit for service of the summons and complaint has expired.

      The judge allowed UMass's and the university defendants' motion to dismiss the defamation claim on the ground that the complaint did not plead any role they played in the publication of the articles and photographs.

      Butcher raises no argument on appeal regarding the dismissal of the other counts or the dismissal of all counts against Day. Accordingly all such arguments are waived. See U.S. Bank Nat'l Ass'n v. Schumacher, 467 Mass. 421, 426 n.10, 5 N.E.3d 882 (2014) (argument not addressed on appeal is waived); Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 921 (1975) ("The appellate court need not pass upon questions or issues not argued in the brief").

      Vishniac was the only remaining defendant with regard to the defamation claim; Vishniac, UMass, and the university defendants (except Day) were the remaining defendants with regard to the intentional infliction of emotional distress claim.

      At the summary judgment stage, Vishniac argues only that Butcher has no reasonable expectation of proving at trial either that the articles contained an actionable false statement, or that he suffered cognizable harm. Vishniac does not contest that Butcher has sufficiently demonstrated the other two elements of his defamation claim -- namely that these articles were of or concerning Butcher and that there was fault.

      On summary judgment, Vishniac does not contend that the witness allegations are substantially true.

      Contrast Thompson v. Boston Publ. Co., 285 Mass. 344, 346-347, 189 N.E. 210 (1934) (report of allegations on which plaintiff was arrested after warrant was issued was privileged); Sibley v. Holyoke Transcript-Telegram Publ. Co., 391 Mass. 468, 471, 461 N.E.2d 823 (1984) (publication of statements contained in affidavit for search warrant, which later issued, covered under privilege); Jones, 400 Mass. at 795-797, 512 N.E.2d 260 (report that suspect had been charged with crime, and broadcast of police chief's statements made during official press conference, both protected by privilege).

      The inapplicability of the fair report privilege here, of course, does not necessarily mean that there is liability for the newspaper's publication of any statements shown to be false. As set forth supra, Butcher must prove each element of the defamation claim, including fault, which "varies between negligence (for statements concerning private persons) and actual malice (for statements concerning public officials and public figures)." Ravnikar, 438 Mass. at 630, 782 N.E.2d 508.

      For purposes of summary judgment, Butcher provides sufficient evidence that the campus environment and conditions of his employment became so hostile that he felt compelled to leave. See GTE Prods. Corp. v. Stewart, 421 Mass. 22, 34, 653 N.E.2d 161 (1995) (under theory of constructive discharge, employee may recover damages against employer even if employee leaves voluntarily where "working conditions would have been so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign" [quotation omitted] ).

      Butcher has not asserted a claim for negligent infliction of emotional distress.

      Because UMass is statutorily immune, summary judgment properly entered in favor of UMass as to Butcher's intentional infliction of emotional distress claim. See G. L. c. 258, § 10 (c ) ; Lafayette Place Assocs. v. Boston Redev. Auth., 427 Mass. 509, 533-535, 694 N.E.2d 820 (1998), cert. denied, 525 U.S. 1177, 119 S.Ct. 1112, 143 L.Ed.2d 108 (1999). See also Robinson v. Commonwealth, 32 Mass. App. Ct. 6, 9, 584 N.E.2d 636 (1992) ("[T]he University of Massachusetts is an agency of the Commonwealth under G. L. c. 258"). We also agree with the university defendants that summary judgment as to this claim should enter as to them because, as with the defamation claim, none of the university defendants is alleged to have been responsible for the publication giving rise to the claim. See note 3, supra. This claim is potentially viable only against the remaining newspaper defendant, Vishniac. See note 2, supra.


source: Caselaw Access Project

license: Public Domain

text:
    Kevin HEINE v. Rosangela HEINE.
    17-P-309
    Appeals Court of Massachusetts.
    Entered: September 10, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Kevin Heine (husband), the former husband of Rosangela Heine (wife), appeals from a judgment of divorce nisi (divorce judgment) and a related order of the Probate and Family Court (1) allowing the wife to travel to Brazil with the parties' child for twenty-one days per year, (2) requiring the parties to submit to the continuing, exclusive jurisdiction of Massachusetts for custody-related matters, and (3) awarding attorney's fees to the wife in connection with the husband's motion to stay the divorce judgment. We affirm the portion of the divorce judgment allowing the wife to travel internationally with the child; however, the provision allotting up to twenty-one days for such travel is vacated and remanded for further proceedings consistent with this memorandum and order. The portion of the divorce judgment pertaining to jurisdiction is reversed. The award of attorney's fees to the wife is vacated and remanded for further proceedings consistent with this memorandum and order.

Background. The wife, a native of Brazil, moved to the United States (U.S.) in 1994 and subsequently obtained her U.S. citizenship. The parties were married in June of 2006, and their child was born in November of 2012. In December of 2013, the parties and the child traveled together to Brazil to visit the wife's family. At that point, the parties' marriage had already begun to unravel. The husband ended up returning to the U.S. alone, while the wife and child remained in Brazil for several weeks before returning to the U.S. using plane tickets purchased by the husband.

In September of 2014, the husband initiated divorce proceedings in the Probate and Family Court. In November of 2014, the wife filed a motion seeking permission to travel with the parties' child to Brazil to attend her father's funeral. On November 17, 2014, following a hearing, a judge of the Probate and Family Court (motion judge) issued a temporary order (1) incorporating a stipulation of the parties agreeing to temporary shared legal custody of the child; (2) establishing a temporary parenting plan; and (3) prohibiting each party from traveling internationally with the child, absent the agreement of the other party. On February 11, 2015, the motion judge issued a second temporary order (1) incorporating a stipulation of the parties agreeing to a temporary holiday and vacation parenting schedule; and (2) prohibiting both parties from traveling internationally with the child until further order of the court.

In March of 2016, the parties entered into a separation agreement settling nearly all of the issues relating to the divorce. The separation agreement provided, in relevant part, that the parties would have shared legal custody of the child and would adhere to a shared parenting plan under which the parties would enjoy approximately equal parenting time with the child. The separation agreement further provided that the parties would share the child's school vacations on an alternating basis, and each party would be entitled to have two nonconsecutive weeks of summer vacation with the child. The parties were unable to reach an agreement regarding the wife's request to travel to Brazil with the child.

On March 10, 2016, the parties went to trial on the issue pertaining the child's international travel. The judge heard testimony from both parties, along with representations of counsel, and directed the parties to submit memoranda on the international travel issue. The divorce judgment entered on June 13, 2016, incorporating the parties' separation agreement and adjudicating the international travel issue. The judgment permitted the wife to renew the child's passports (U.S. and Brazil) and to travel with the child to Brazil for up to twenty-one days each year. The judgment further required (1) the wife to register the judgment in Brazil, and (2) the parties to stipulate that the Massachusetts Probate and Family Court shall retain continuing and exclusive jurisdiction over any future custody disputes.

On July 6, 2016, the husband filed a motion for relief from judgment, which was denied on August 1, 2016. The wife thereafter filed a motion seeking an award of attorney's fees in connection with the husband's motion for relief from judgment. On August 12, 2016, the husband filed a motion to stay pending appeal. At the hearing on the husband's motion to stay, the judge also allowed the wife to be heard on her motion for attorney's fees. On September 9, 2016, the judge denied the husband's motion to stay and ordered him to pay the wife $1,250 in "attorney fees related to her opposition to the motion to stay." The present appeal by the husband followed.

Discussion. The husband argues that the judge erred in (1) allowing the wife to travel to Brazil with the child for up to twenty-one days per year, (2) ordering the parties to agree to Massachusetts having continuing and exclusive jurisdiction over future custody disputes, and (3) awarding the wife attorney's fees in connection with the husband's motion to stay. We address the husband's arguments in turn.

International travel. "In custody matters, the touchstone inquiry [is] ... what is 'best for the child.' " Hunter v. Rose, 463 Mass. 488, 494 (2012), quoting from Custody of Kali, 439 Mass. 834, 840 (2003). See G. L. c. 208, § 28. In determining the child's best interests, there is no "definitive list of criteria" for the judge consider. El Chaar v. Chehab, 78 Mass. App. Ct. 501, 506 (2010), quoting from Charara v. Yatim, 78 mass. App. Ct. 325, 334 (2010). Rather, "[t]he judge is afforded considerable freedom to identify pertinent factors in assessing the welfare of the child and weigh them as [he] sees fit." Smith v. McDonald, 458 Mass. 540, 547 (2010). "Findings of fact shall not be set aside unless clearly erroneous," J.S. v. C.C., 454 Mass. 652, 657 (2009), quoting from Mason v. Coleman, 447 Mass. 177, 186 (2006), and we "consider whether there was an abuse of discretion in how the judge accounted for the child's best interests." Schechter v. Schechter, 88 Mass. App. Ct. 239, 245 (2015).

Here, in determining the child's best interests, the judge weighed both the benefits and the potential risks associated with permitting the child to travel to Brazil with the wife. The judge found that traveling to Brazil was the child's only means of maintaining a relationship with his maternal grandmother, who had "been unable to get travel visas to visit the child in the United States." See Yannas v. Frondistou-Yannas, 395 Mass. 704, 712 (1985) (observing benefit to children in "strengthen[ing] their ties to family [outside of U.S.] and to [their mother's] culture"). The judge also considered whether there was a potential risk of harm to the child in allowing him to travel internationally with the wife. See Murphy v. Murphy, 380 Mass. 454, 461-462 (1980) ("child snatching" by parent and subsequent "captures" of child "can be harmful" and can cause "emotional and physical reactions in the child commensurate with these distresses" [quotations omitted] ).

In determining whether the circumstances of the case presented an "increased likelihood for an international abduction," the judge considered a list of "red flags" promulgated by the National Center for Missing and Exploited Children (NCMEC). The judge acknowledged that while the NCMEC red flags "constitut[ed] neither expert testimony nor [binding] legal precedent," they nevertheless offered some "probative value." The judge made findings as to the NCMEC red flags and concluded that the wife "does not present criteria to fit the NCMEC's potential abductor profile."

It is apparent from the judge's findings that he did not credit the husband's assertion that the wife intended to relocate to Brazil after the divorce. The judge found that the wife, a naturalized U.S. citizen, has resided in the U.S. continuously for over twenty years, and has lived in Massachusetts for over ten years, and that the wife has ties to her local community in Cohasset where the child is enrolled in school and where she is "actively looking for housing."

The judge also found that the wife has a potentially significant financial disincentive in returning to Brazil. The judge noted that the wife has traveled to Brazil several times since she moved to the U.S. and has always returned. Moreover, neither the judge's findings, nor the evidence in the record, indicate that the wife has ever attempted, or even threatened, to abscond with the child to Brazil. To the contrary, the judge found that the wife had an "opportunity" to remain in Brazil with the child, "[a]t a time when she was already contemplating divorce" in December of 2013, but returned the child to the U.S. without incident. The judge further found that the wife was willing to "commit" to certain safeguards recommended by NCMEC, including "conceding" to the "future exclusive jurisdiction" of Massachusetts "over any custody disputes, and registering ... such binding jurisdiction in the courts of Brazil."

In sum, it is apparent that the judge viewed the risk of international abduction to be low, and that such risk was outweighed by the benefit to the child in maintaining a relationship with his mother's family in Brazil. Based on the record before us, we discern no abuse of discretion in the judge's weighing of the "pertinent factors" and implicitly concluding that the child's best interests would be served by traveling to Brazil with the wife. See Smith, 458 Mass. at 547.

However, we agree with the husband that allowing up to twenty-one days for such travel is inconsistent with the terms of the separation agreement. The separation agreement provides that the parties shall share equally in the child's school vacations, and that each party shall be entitled to have the child for two nonconsecutive weeks during summer vacation. The judge did not explain whether the three consecutive weeks of international travel are in addition to, or lieu of, the two nonconsecutive vacation weeks allotted to the wife under the separation agreement. Moreover, by expanding the wife's vacation time without granting the husband a corresponding expansion, the judge undermined the clear intention of the parties to have equal vacation time with the child, as expressed in their separation agreement. See Colorio v. Marx, 72 Mass. App. Ct. 382, 386 (2008), quoting from Judge Rotenberg Educ. Center, Inc. v. Commissioner of the Dept. of Mental Retardation (No. 1), 424 Mass. 430, 443 (1997) ("The interpretation of the separation agreement is a question of law, and is therefore 'afforded plenary review' "). Accordingly, while we affirm the judge's decision to allow the child to travel to Brazil, the provision allowing up to twenty-one days for such travel must be vacated and remanded. On remand, the judge shall (1) clarify whether the three consecutive weeks of international travel are meant to augment or replace the two nonconsecutive weeks of vacation allotted to the wife in the separation agreement, and (2) determine whether the husband is entitled to a corresponding expansion of his vacation time with the child, in light of the parties' expressed intentions in their separation agreement.

Jurisdiction. The husband also argues that the judge erred in ordering the parties to agree to be bound to the continuing and exclusive jurisdiction of the Massachusetts Probate and Family Court for all future custody-related matters. We agree. Pursuant to the Massachusetts Child Custody Jurisdiction Act (MCCJA), G. L. c. 209B, "a court must determine whether it has the power to exercise jurisdiction in a custody proceeding and, if so, whether it should exercise that power under the standards provided in the statute." Custody of Brandon, 407 Mass. 1, 5 (1990). "[T]he purposes and provisions of MCCJA and of [ 28 U.S.C. § 1738A (1988), the Parental Kidnapping Prevention Act (PKPA) ], as well as the interpretation of those statutes in Massachusetts and elsewhere, preclude the parties from conferring continuing jurisdiction on the Massachusetts court." Cricenti v. Weiland, 44 Mass. App. Ct. 785, 788 (1998). That the wife agreed "to vest continued jurisdiction in Massachusetts ... is of no significance. What is viewed as subject matter jurisdiction 'cannot be conferred by consent, conduct or waiver.' " Id. at 789, quoting from MacDougall v. Acres, 427 Mass. 363, 371 (1998). Accordingly, the portion of the divorce judgment pertaining to jurisdiction must be reversed.

Attorney's fees. A judge has broad discretion in awarding attorney's fees in a divorce case. See Moriarty v. Stone, 41 Mass. App. Ct. 151, 159 (1996) ; G. L. c. 208, § 38. "[A]mong the relevant factors to be considered" by the judge are "the ability of the wife's counsel, the work performed, the results secured, the time spent, the hourly rates, the existence of contemporaneous time records, the financial positions of the parties, and the husband's obstructionist conduct which prolonged the proceedings." Cooper v. Cooper, 62 Mass. App. Ct. 130, 141 (2004), quoting from Downey v. Downey, 55 Mass. App. Ct. 812, 819 (2002). Here, the judge awarded the wife $1,250 in attorney's fees "related to her opposition to the [husband's] motion to stay," finding that the husband filed the motion to stay in "bad faith." However, the wife sought attorney's fees related to the husband's earlier motion for relief from judgment. It is apparent from the record that at least a portion of the $1,250 in fees awarded to the wife was actually incurred in connection with the husband's motion for relief from judgment, rather than the husband's motion to stay. Moreover, to the extent the judge found the fees to be "reasonable," it appears that he did not have sufficient documentation regarding the services performed by the wife's counsel to evaluate the reasonableness of the fees. Accordingly, the award must be vacated and remanded for a redetermination of the wife's original fee request. The judge may take further evidence on remand if necessary.

Conclusion. So much of the judgment as permits the wife to travel internationally with the child is affirmed. The portion of the divorce judgment allowing the wife to travel with the child to Brazil for up to twenty-one days is vacated and remanded for further proceedings consistent with this memorandum and order. The portion of the divorce judgment pertaining to jurisdiction is reversed. The order awarding the wife $1,250 in attorney's fees related to her opposition to the husband's motion to stay is vacated and remanded for further proceedings consistent with this memorandum and order.

So ordered.

Affirmed and reversed in part; vacated in part and remanded.

      In March of 2016, the parties executed a "memorandum of understanding," which was thereafter memorialized in a formal separation agreement executed on April 11, 2016.

      In his decision, the judge noted, "[t]he nine NCMEC red flags are: previously abducted the child; threatened to abduct the child; no strong ties to the home [S]tate (U.S.); friends or family living in the other country; a strong support network in the other country; no job or financial ties to the U.S. home [S]tate; engaging in abduction planning activities such as quitting a job, selling a home, terminating a lease, closing a bank account, liquidating other assets, applying for a passport, birth certificates, school medical records, or undergoing plastic surgery; a history of marital instability, lack of cooperation with the other parent, domestic violence or child abuse; a criminal record."

      The husband, who submitted the NCMEC factors to the judge for consideration, claims the judge erred in arriving at this conclusion. He argues that the judge made erroneous findings regarding certain red flags, while giving insufficient weight to others. We note that the judge was not required to consider any of the NCMEC red flags, and thus, putting aside the possible hearsay challenge (which is waived and we do not address), the judge was well within his discretion to weigh them as he saw fit. Moreover, to the extent the judge may have made some minor errors, they do not appear to be material to his decision to allow the child to travel to Brazil.

      The judge found that the mother is a U.S. citizen; however, her Brazilian citizenship is "unclear." The mother's counsel represented at trial that the mother has dual citizenship; however, her Brazilian citizenship is not recognized by the U.S.

      The judge found that the wife is an active member of her church and has "social bonds with other parents ... in the area."

      The judge found that the wife is personally liable for debts in Brazil exceeding $200,000 in U.S. dollars. While the judge acknowledged that the wife stands to inherit a fractional interest in Brazilian real property previously owned by her deceased father, the property is the subject of ongoing litigation with several of her extended family members. The husband claims that the judge erred in failing to consider the potentially high value of the wife's inheritance. However, as neither party provided a value for the wife's inheritance at trial, we cannot say that it was error for the judge to omit the value of the inheritance from his analysis.

      The husband claims on appeal that the wife did not return to the U.S. on the date agreed upon by the parties. However, neither the judge's findings nor the evidence at trial (including the husband's own testimony) indicate that the mother remained in Brazil with the child against the husband's objection.

      The husband claims these safeguards are inadequate to protect the child because Brazil, despite being a signatory to the Hague Convention, has a history of noncompliance in custody matters. However, the judge weighed evidence presented by the husband regarding Brazil's alleged noncompliance and ultimately did not find it persuasive.

      Moreover, to the extent the husband challenges the judge's credibility determinations, there is nothing in the record which would leave us "convinced" that the judge's credibility determinations were "plainly wrong," thus we decline to disturb them. Zaleski v. Zaleski, 469 Mass. 230, 237 (2014), quoting from Felton v. Felton, 383 Mass. 232, 239 (1981).

      At the hearing on the wife's motion for attorney's fees, the judge struck the affidavit of costs accompanying the motion and instructed the wife's counsel to proceed on representations.

      With respect to the husband's other arguments not addressed herein, "they 'have not been overlooked. We find nothing in them that requires discussion.' " Department of Rev. v. Ryan R., 62 Mass. App. Ct. 380, 389 (2004), quoting from Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).


text:
    Mae LINDQUIST v. Steve STELLA.
    17-P-605
    Appeals Court of Massachusetts.
    Entered: September 10, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   This is a summary process action brought by Mae Lindquist against her tenant, Steve Stella. After a bench trial, a Housing Court judge ruled in Stella's favor on his counterclaims for breach of the implied warranty of habitability, illegal utility charges, retaliation, discrimination, and violation of G. L. c. 93A and awarded him $48,242.25 in damages and $7,000 in attorney's fees. Lindquist appeals.

After careful review of the record, we conclude that the judge's findings, which she adopted from the parties' proposed findings, do not reflect a meaningful consideration of the evidence. The judge accepted one proposed finding that Stella now concedes is clearly erroneous, and she otherwise failed to resolve discrepancies in the evidence, including some that call Stella's credibility into question. For these reasons, as detailed further below, we vacate portions of the judgment and remand the claims for breach of the warranty of habitability, illegal utility charges, and violation of G. L. c. 93A for further findings, and the retaliation claim for recalculation of damages. On the discrimination claim, we conclude as a matter of law that judgment should enter in Lindquist's favor, and that portion of the judgment is reversed.

Discussion. "On review of a jury-waived proceeding, we accept the judge's findings of fact unless they are clearly erroneous." South Boston Elderly Residences, Inc. v. Moynahan, 91 Mass. App. Ct. 455, 462 (2017), quoting from U.S. Bank Natl. Assn. v. Schumacher, 467 Mass. 421, 427 (2014). A finding is clearly erroneous when there is no evidence to support it or when "although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Jablonski v. Casey, 64 Mass. App. Ct. 744, 747 (2005), quoting from United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). In this case the judge adopted a majority of Stella's proposed findings and some of Lindquist's proposed findings and issued rulings of law. Although this was permissible, we apply "stricter scrutiny" to the judge's adopted findings because we have doubt whether they "are the product of [her] independent judgment." Cormier v. Carty, 381 Mass. 234, 237-238 (1980). See Adoption of Abby, 62 Mass. App. Ct. 816, 817 (2005).

1. Implied warranty of habitability. The implied warranty of habitability requires that a landlord maintain a rented unit in compliance with the State sanitary code (code). See South Boston Elderly Residences, 91 Mass. App. Ct. at 462. If a tenant establishes a breach, he may be entitled to a rent abatement. See ibid. Here, the judge awarded Stella "a 30% abatement in the rent from April 2011 through May 2016 due to the rotting front and rear porches." On appeal Lindquist does not contest that the condition of the front porch constituted a breach of the warranty of habitability. She focuses her challenge on the applicable time period, arguing that the judge clearly erred in finding that Stella's tenancy commenced in April of 2011 and then in calculating damages from that date.

We agree that the judge committed clear error. Indeed, Stella concedes that the evidence did not support the judge's finding (adopted from Stella's proposed findings) that his tenancy began in April of 2011. The evidence is undisputed that Lindquist did not even purchase the property until June of 2011. Thus, at a minimum, the damages award must be reduced by the corresponding amount.

But that is not the end of the matter. The judge also adopted Stella's proposed finding that "since the inception of his tenancy, there have been problems with both the front porch and back porch," including "loose boards and rotted wood," "rusted railings," and "lolly columns" that were "giving way and rotting." These issues, however, were first documented by city inspectors in the spring of 2016, nearly five years after Stella's tenancy commenced. It is true that Stella testified that the porches had problems from the start, but he also testified that the problems "had progressively gotten worse since [he] was there." In addition, the judge failed to account for evidence that an independent third party, a city inspector, observed in January of 2016 that the "side porch" was in disrepair, yet reported no issues with the front porch.

In light of this evidence, and after reviewing the record as a whole, we are unable to determine the basis for the judge's finding that the issues documented by the inspectors in 2016 existed "since the inception of the tenancy." "[N]ot every defect gives rise to a diminution in rental value," McKenna v. Begin, 5 Mass. App. Ct. 304, 308 (1977), and even "the existence of a code violation by itself does not necessarily entitle a tenant to a finding that a material breach of the warranty of habitability has occurred." South Boston Elderly Residences, 91 Mass. App. Ct. at 463-464. The judge did not grapple with the issue of when the defects in the porches became serious enough to rise to the level of a material breach. We therefore remand this claim for further findings and recalculation of damages, including whether multiple damages and attorney's fees are warranted under G. L. c. 93A.

2. Illegal utility charges. General Laws c. 186, § 14, as appearing in St. 1973, c. 778, § 2, prohibits a landlord from "transfer[ring] the responsibility for payment for any utility services to [a tenant] without his knowledge or consent." A person who violates this prohibition is subject to criminal penalties and "shall also be liable for actual and consequential damages or three month's rent, whichever is greater, and the costs of the action, including a reasonable attorney's fee." Ibid.

Here, there is no dispute that Lindquist transferred the responsibility for cross-metered utilities to Stella; the issue is whether she did so without Stella's knowledge and consent. On this point the judge found that Stella learned of the cross-metering "only recently, from the [city's] [b]oard of [h]ealth." This finding is clearly erroneous. Although Stella testified that city inspectors told him that there was cross-metering, he did not testify that that was the first time he learned of it. There is evidence, moreover, suggesting to the contrary. Intake notes from the city show that on March 23, 2016, Stella telephoned to complain about "possible cross-metering," stating that "he ha[d] been paying for common lights" and that the conditions existed for "[one] year." Stella acknowledged on cross-examination that he is a master electrician and "know[s] all about electricity." In addition, Lindquist's son, Russell Shepard, testified that, at the start of Stella's tenancy, he and Stella together installed the common area smoke detectors and Stella wired them into his electrical box. Shepard also testified that Stella agreed to pay the common area utilities for a reduced monthly rent.

The judge's adopted findings do not reflect any meaningful consideration of this evidence. See Adoption of Abby, 62 Mass. App. Ct. at 817 ("When adopted findings silently reject contrary evidence, it is difficult to know whether the judge actively chose to reject that evidence" [quotation omitted] ). Thus, further findings are also required on this claim.

3. Retaliation. A tenant is entitled to a rebuttable presumption of retaliation if his landlord takes certain actions within six months of the tenant's engaging in protected activities. See South Boston Elderly Residences, 91 Mass. App. Ct. at 468. A landlord can rebut the presumption "only by clear and convincing evidence that [her] action was not a reprisal against the tenant and that [she] had sufficient independent justification for taking such action, and would have in fact taken such action, in the same manner and at the same time the action was taken, regardless of tenants engaging in" protected activities. G. L. c. 186, § 18, as appearing in St. 1978, c. 149, § 1. Upon a finding of retaliation, the landlord "shall be liable for damages which shall not be less than one month's rent or more than three month[s'] rent, or the actual damages sustained by the tenant, whichever is greater, and the costs of the suit, including a reasonable attorney's fee." Ibid.

Here, the judge awarded Stella three months' rent upon concluding that Lindquist retaliated against him for reporting code violations to the city. The retaliation, the judge found, took three forms: (1) raising Stella's rent, (2) serving an eviction notice, and (3) "arguabl[y] chang[ing] the terms of the tenancy with respect to the available parking." The second of these findings is not clearly erroneous. It is undisputed that Lindquist served the eviction notice within six months of Stella's reporting the violations, giving rise to a presumption of retaliation. Furthermore, the judge was justified in finding that Lindquist did not rebut the presumption. Contrary to Lindquist's assertion, the evidence showed that she knew in January of 2016, before she served the eviction notice, that Stella had reported the violations to the city. In addition, Lindquist failed to offer a sufficient independent justification for her action.

The other two findings are clearly erroneous, however. Lindquist met her burden of showing that the rent increase could not have been retaliatory because Stella testified that Lindquist notified him of it in December of 2015, and there was no evidence that Lindquist even knew about Stella's call to the city until January of 2016. Regarding the purported change in parking, this finding was premised on evidence that Shepard started parking on the public street in a spot regularly used by Stella. As discussed below, however, Shepard's action cannot be imputed to Lindquist and thus does not support Stella's claim that Lindquist retaliated against him.

The evidence therefore supports a finding of only one retaliatory act -- serving an eviction notice. Because the judge predicated damages on either two or three retaliatory acts, we remand this claim for the judge to determine whether recalculation of the damages award and the corresponding award of attorney's fees is appropriate, and if so, to recalculate those amounts.

4. Discrimination. Stella brought his discrimination claim under both G. L. c. 151B and the Federal Fair Housing Act, 42 U.S.C. § 3601 et seq. (2012). The judge ruled in Stella's favor on two grounds. First, she concluded that "when [Lindquist's] agent [Shepard] began to park in a space consistently used by [Stella] due to the proximity to the building and [Stella's] limited mobility, [Lindquist] engaged in or allowed discriminatory activity to occur." Second, she concluded that "[Lindquist] and her agent engaged in discriminatory activity when they restricted [Stella's] use of the back yard due to his son's disabilities."

In reaching these conclusions, the judge engaged in no independent analysis of the agency issue. Instead, she adopted Stella's proposed finding that "Shepherd [sic ] ('Maintenance Manager') is the son of [Lindquist] and maintenance manager of the subject premises, and at all times relevant was operating as an agent of [Lindquist]." This finding is clearly erroneous. There was no evidence that would reasonably support characterizing Shepard as the "maintenance manager." To the contrary, the evidence was that over five years Shepard did repair work at the property on less than a handful of occasions. Indeed, in response to a question whether Shepard "ever made repairs," Stella himself testified that Shepard replaced some broken windows but, otherwise, Stella "really [hadn't] seen much."

Nor was there other evidence establishing the existence of an agency relationship between Lindquist and Shepard. "An agency relationship is created when there is mutual consent, express or implied, that the agent is to act on behalf and for the benefit of the principal, and subject to the principal's control." Theos & Sons, Inc. v. Mack Trucks, Inc., 431 Mass. 736, 742 (2000), citing Restatement (Second) of Agency § 1 (1958). See Cabrera v. Jakabovitz, 24 F.3d 372, 386 (2d Cir. 1994) (applying Restatement [Second] of Agency § 1 comment b definition of agency to claim under Fair Housing Act). These hallmarks are missing here. With regard to the parking issue, Lindquist has no control over where people park on a public street, nor was there evidence that Shepard parked in Stella's usual spot at Lindquist's behest. Likewise, with regard to use of the back yard, there was no evidence to support a finding that Lindquist had control over Shepard's behavior or that he was acting on her behalf.

For these reasons we conclude that, as a matter of law, Shepard's acts cannot be imputed to Lindquist because he was not acting as her agent. Lindquist is thus entitled to judgment in her favor on this claim.

Conclusion. The portion of the judgment pertaining to the discrimination claim is reversed, and judgment shall enter for Lindquist on that claim. The remainder of the judgment is vacated, and the case remanded for further proceedings consistent with this memorandum and order.

So ordered.

Reversed in part; vacated in part and remanded.

      The monthly rent at the start of the tenancy was $500. It was increased to $550 in 2014, and again to $650 in January of 2016.

      Lindquist also challenges the judge's findings that (1) the rear porch was rotting, and (2) the violations were not cured until May of 2016. We see no clear error in these findings. The first is supported by an inspection report from the department of inspectional services for the city of Worcester (city), which states that "[t]here are some rotted floor boards on the rear porch and the cement support is cracked and giving away [sic ]." The second finding is supported by evidence that the city filed a complaint in the Housing Court on May 4, 2016, seeking an injunction requiring Lindquist to bring the property into compliance with the code.

      According to the same intake notes, Stella stated during the telephone call that he reported the cross-metering to his landlord and the landlord's response was "[e]viction." This evidence conflicts with Stella's testimony that, at the time of the call, he did not know of Lindquist's intent to evict him. This is but one example of the problems with Stella's testimony that the judge did not "confront ... and ... provide 'an explicit analysis of credibility and the evidence bearing on it.' " Herridge v. Board of Registration of Med., 420 Mass. 154, 164-165 (1995), quoting from Morris v. Board of Registration in Med., 405 Mass. 103, 107, cert. denied, 493 U.S. 977 (1989).

      Stella suggests that, even had he consented to the cross-metering, Lindquist is still liable under G. L. c. 186, § 14, because of her failure to comply with certain provisions of the code -- for example, the requirement of a written agreement before a landlord can transfer responsibility for cross-metered utilities to a tenant. But Stella cites no case supporting the proposition that a violation of the code is alone sufficient to establish liability under G. L. c. 186, § 14. We note that in Al-Ziab v. Mourgis, 424 Mass. 847, 851-852 (1997), the Supreme Judicial Court held that "to support the imposition of liability under [G. L. c. 186, § 14 ], there must be a showing of at least negligent conduct by a landlord and violation of the lead paint statute alone is not sufficient to prove such negligence." In any event we think that this issue should be decided, if necessary, by the judge in the first instance.

      We disagree with Lindquist's argument that Stella's "extreme hostility" was an independent justification. The evidence does not show, much less clearly and convincingly, that this was what motivated Lindquist to serve the eviction notice.

      To the extent the judge found that Lindquist directly restricted Stella's use of the back yard, that finding is not supported by a preponderance of the evidence and is clearly erroneous.

      Stella argues on appeal that Lindquist can be held liable for Shepard's discriminatory harassment, "even in the absence of an agency relationship," because Shepard is Lindquist's tenant. Stella did not raise this argument below, and we cannot consider it on appeal because it depends on facts that are not established in the record. Cf. Aetna Cas. & Sur. Co. v. Continental Cas. Co., 413 Mass. 730, 734-735 (1992). For the same reason, we cannot consider Stella's argument that the judge could have made a finding of "apparent agency."

      The judge's finding was premised on evidence that Shepard told Stella's son Joseph to get out of the yard, calling him a "retard." At the same time, however, the judge credited Shepard's testimony that he did not want Joseph in the yard because of his use of profanity, including sexual profanity, around Shepard's much younger children.

      Given our decision, we deny Stella's request for appellate attorney's fees.


text:
    COMMONWEALTH v. George S. MELO.
    16-P-1730
    Appeals Court of Massachusetts.
    Entered: September 7, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   A District Court jury convicted the defendant of operating a vessel on the waters of the Commonwealth while under the influence of intoxicating liquor and of unsafe operation of a boat. On appeal, the defendant claims the judge erred by (1) denying the defendant's motion to suppress, (2) admitting as evidence his statements refusing to perform a sitting field sobriety test, and (3) allowing testimony of the motor vehicle field sobriety tests. We affirm.

Background. On May 30, 2015, the defendant was observed operating a boat in an erratic manner on Fort Meadow Reservoir, which is located mostly in Marlborough. Witnesses saw the defendant drive his boat towards the causeway and crash into a rock. Marlborough police officers arrived within five to ten minutes after being contacted by one of the witnesses. Marlborough police Officer Paul Connors approached the defendant at the docking area to the reservoir and observed that the boat was damaged and sinking. Connors made observations that the defendant's eyes were glassy and bloodshot, his speech was slurred, and he had a "strong odor of an intoxicating beverage coming from his person." Connors requested that the defendant perform field sobriety tests. After the defendant performed two field sobriety tests, Connors formed the opinion that the defendant was "highly intoxicated," placed him under arrest, and seated him in the rear of a police cruiser.

An environmental police Officer, David Wright, arrived after the defendant had been placed in the Marlborough police cruiser. After it was agreed that the defendant's arrest was under the jurisdiction of the Massachusetts Environmental Police, Wright requested that the defendant perform additional field sobriety tests. Wright sought to have the defendant perform three "sitting field sobriety" tests that are used for operators of boats. The defendant attempted two of the tests and, after Wright explained the third test, the defendant "put his hands down in his face saying he did nothing wrong and he did not want to continue." Based on his observations of the defendant and the defendant's performance on the sitting field sobriety tests, Wright formed the opinion that the defendant was intoxicated and arrested him.

Discussion. 1. Motion to suppress. Prior to trial the defendant moved to suppress the second set of field sobriety tests that were administered by Officer Wright on the ground that they should be considered testimonial evidence because they were conducted "well after the defendant had been arrested," without the benefit of Miranda warnings. Following an evidentiary hearing, the judge denied the motion to suppress and issued written findings and rulings concluding that although the defendant was "in custody" at the time of the second field sobriety tests, the tests were "not testimonial evidence and thus did not require the administration of" Miranda rights.

When reviewing a motion to suppress, "we adopt the motion judge's factual findings absent clear error." Commonwealth v. Isaiah I., 450 Mass. 818, 821 (2008). Although we give the facts found by the motion judge deference, "[w]e independently determine whether the judge correctly applied constitutional principles to the facts as found." Ibid. Here, the judge correctly found that the defendant was in custody at the time he attempted the second set of field sobriety tests. However, our inquiry does not end with the judge's finding regarding custody. Miranda warnings are required only when "a person in custody is subjected to either express questioning or its functional equivalent." Commonwealth v. Torres, 424 Mass. 792, 797 (1997), quoting from Rhode Island v. Innis, 446 U.S. 291, 300-301 (1980). The defendant argues that the judge erred in ruling that the field sobriety tests conducted by Wright were not testimonial evidence. The defendant's argument ignores settled law to the effect that the Fifth Amendment to the United States Constitution and the art. 12 of the Massachusetts Declaration of Rights prohibitions against self-incrimination are not implicated by field sobriety tests. See Commonwealth v. Brennan, 386 Mass. 772, 783 (1982) ; Commonwealth v. Burgess, 426 Mass. 206, 210-211 (1997). Although the defendant was not free to leave at the time Wright conducted the second set of field sobriety tests, the tests do not elicit testimonial or communicative evidence and therefore did not trigger the need for Miranda warnings. Accordingly, the judge correctly applied the relevant constitutional principles and properly denied the defendant's motion to suppress.

2. Defendant's statements. Wright testified at trial to statements made by the defendant during the sitting set of field sobriety tests. The defendant argues that his statements that he "did nothing wrong" and that he "did not want to continue" were refusals and therefore erroneously admitted. Here we agree that the statement that the defendant did not want to continue was a refusal and was therefore inadmissible. See Commonwealth v. Brown, 83 Mass. App. Ct. 772, 779 (2013).

At trial, the defendant objected immediately following Wright's testimony regarding the defendant not wanting to continue, however the defense attorney made it clear that his objection was based on what he anticipated was to come next during the officer's testimony. In this circumstance, we conclude that the claim is not preserved, and review any error only to determine if a substantial risk of a miscarriage of justice was created. Commonwealth v. Driscoll, 91 Mass. App. Ct. 474, 482 (2017).

Even though the comment amounts to a reference to the defendant's refusal, prohibited by our cases, in light of the considerable evidence against the defendant, including the witnesses' observations of the defendant's erratic operation of his boat, his physical appearance, his performance on the field sobriety tests, and the officers' opinions as to his sobriety, any error did not create a substantial risk of a miscarriage of justice.

3. Motor vehicle field sobriety tests. The defendant maintains that the judge abused his discretion in admitting Connors's testimony regarding the first set of field sobriety tests. The defendant argues that this testimony was overly prejudicial and misleading. To establish that a judge abused his discretion in denying a motion to exclude testimony, a defendant must show that there was " 'a clear error of judgment in weighing' the factors relevant to the decision, ... such that the decision falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). In this case, we fail to discern any abuse of discretion by the judge, who found that the evidence of field sobriety tests administered by Connors was admissible.

Judgments affirmed.

      The same judge ruled on the motion to suppress and presided over the trial.

      Connors used field sobriety tests that would be used on an operator of a motor vehicle.


text:
    COMMONWEALTH v. Daniel P. FLYNN.
    17-P-840
    Appeals Court of Massachusetts.
    Entered: September 7, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant appeals from the order revoking his probation and imposing sentence, claiming that the finding of a probation violation was impermissibly premised on unreliable hearsay. We find no such infirmity and therefore affirm.

1. Background. In September, 2016, the defendant pleaded guilty to operating a motor vehicle with a suspended license, subsequent offense, and was sentenced to sixty days in the house of correction, suspended for six months. In November, 2016, while still on probation, the defendant was arraigned on charges of assault and battery on a family/household member, strangulation or suffocation, and resisting arrest. The defendant was issued a notice of probation violation, premised on the new charges, and the revocation hearing was scheduled for December 15, 2016.

At the hearing, a probation officer offered a police report dated November 21, 2016, as the only evidence of the violation. The report, authored by a responding police officer, detailed the police response to a dispatch for a woman screaming for help at a specific room at an inn. According to the report, the officer arrived at the inn to find a woman standing outside the room, crying and speaking on the telephone. He overheard her say: "He keeps beating me, I need to leave him." The officer was familiar with the woman and knew she was in a relationship with the defendant. The officer then heard the defendant yell out from inside the room, "[K]eep it up and I will come out there." The woman told the officer that the defendant had "strangled her and punched her in the back of the head." The defendant then "opened the door violently and began to walk out of the room." After a struggle with the police, the defendant was placed under arrest.

Based on this evidence, the judge found that the defendant had violated his probation by having committed domestic assault and battery and imposed the previously suspended sentence of sixty days in the house of correction.

2. Discussion. The defendant contends that the judge abused her discretion in relying on a police report, and the victim's statements contained therein, to find that he had violated his probation because the evidence constituted unreliable hearsay.

Hearsay is generally admissible in probation revocation hearings. See Commonwealth v. Durling, 407 Mass. 108, 114 (1990). Where the sole basis for the revocation is presented through hearsay, however, the evidence must have substantial indicia of reliability. Id. at 118. Evidence that would be admissible through traditional evidentiary rules is presumptively reliable. Ibid. Otherwise, hearsay may be deemed reliable by a consideration of a variety of factors, including (1) the level of factual detail, rather than generalized and conclusory assertions; (2) whether the statement is based on personal knowledge and direct observation; (3) whether the statement is corroborated by evidence submitted by the probationer; (4) whether the statement was provided in circumstances that support the veracity of the source; (5) whether the statement was provided by a disinterested witness; (6) whether the evidence, if based on direct observations, was recorded close in time to the events in question; and (7) whether the statements are internally consistent. Commonwealth v. Hartfield, 474 Mass. 474, 484 (2016), citing Rule 7(b) of the District/Municipal Courts Rules for Probation Violation Proceedings, Mass. Ann. Laws Court Rules, at 97 (LexisNexis 2016).

The judge acted well within her discretion in determining that the victim's statements were presumptively reliable as they constituted excited utterances. "A statement is admissible under the spontaneous [or excited] utterance exception to the hearsay rule if the proponent shows that the statement was made under the influence of an exciting event, before the declarant had time to contrive or fabricate the statement, and that the statement tended to qualify, characterize and explain the underlying event." Commonwealth v. King, 436 Mass. 252, 254 (2002). See Mass. G. Evid. § 803(2) (2018). A judge may consider the condition of the person making the statement, where the statement is made in proximity to the event, and the "temporal closeness of the statements to the startling event" in determining if statements are excited utterances. Commonwealth v. Rodriguez, 90 Mass. App. Ct. 315, 319 (2016).

Here, officers found the victim crying in the hallway outside of the hotel room where the incident took place. As she cried, she was speaking on the telephone, saying that the defendant kept beating her and that she needed to leave him. Officers then heard the defendant state, "[K]eep it up and I will come out there," which he in fact did moments later. The victim had the opportunity to relay to police that the defendant had strangled and punched her before he emerged from the hotel room. Given the victim's condition, the defendant's statement, and the volatility of the situation, the judge could have reasonably determined that the victim's statements to police constituted excited utterances. Despite the presumptive reliability of the statements, the defendant argues that the judge should not have relied on them because the victim was highly intoxicated at the time she made the statements. The only evidence of the victim's intoxication, however, was presented by defense witnesses, which the judge was free to discredit. See Commonwealth v. Cates, 57 Mass. App. Ct. 759, 763 (2003), citing Brown, petitioner, 395 Mass. 1006, 1007 (1985) ("judge responsible for determining the weight and credibility of evidence at revocation hearing").

The judge also acted within her discretion in determining that the police report was reliable. Apart from the victim's statements, the report relayed the officer's own personal knowledge as well as detailed direct observations, recorded close in time to the events. See Durling, 407 Mass. at 121 ; Hartfield, 474 Mass. at 484.

This evidence, properly relied upon, provided ample support for the judge's finding that the defendant had violated his probation by committing a domestic assault and battery. There was no abuse of discretion. See Commonwealth v. Bukin, 467 Mass. 516, 519-520 (2014).

Order revoking probation and imposing sentence affirmed.

      A supplement to the report, authored by another police officer, was also admitted in evidence. It related police observations of the defendant at the police station after his arrest. The supplement is not at issue.

      The defendant and the victim also testified at the hearing. They both indicated that they were engaged to be married and that, on the night in question, they had been drinking alcohol and had begun to argue; they denied that any physical assault took place. Implicit in the judge's finding of a probation violation is the conclusion that she discredited the defendant's account. The judge explicitly noted that she "did NOT credit the testimony of [the victim]."