Lead Opinion
A Suffolk County jury awarded each plaintiff $45,000 on counts of false imprisonment and violations of G. L. c. 12, §§ 11H-11I, the Massachusetts Civil Rights Act (MCRA).
We summarize the evidence with reasonable inferences drawn in favor of the plaintiffs, reserving certain details for discussion of the issues. In September, 1989, the plaintiffs’ father, Robert H. Sarvis (Mr. Sarvis), executed a $650,000 promissory note in favor of the bank, secured by a mortgage on residential property located at 22 Brant Point Road, Nantucket (property). In October, 1990, Mr. Sarvis defaulted on the note and the bank demanded payment. In June, 1991, the bank published and mailed notice of foreclosure sale, as required by G. L. c. 244, § 14. On June 28, 1991, an affiliate of the bank purchased the property at the foreclosure sale.
On July 2, 1991, the defendant bank, through its vice-president, defendant Robert DeChristofaro, listed the property with defendant Samuel Daume, an agent with the Lee Real Estate Agency in Nantucket and former employee of the bank. An internal bank memo dated July 8, 1991, indicated that bank counsel had been instructed to begin eviction proceedings against Mr. Sarvis, who “said he had no intention of lеaving.” On July 10, the bank received a $660,000 cash offer for the property. Laurie Locklin, a bank employee assigned to the disposition of the property, noted in an internal memo that the bank stood to make a $100,000 profit and recommended a “quick close” once the property “[was] vacant.”
DeChristofaro wrote to Mr. Sarvis on July 11, 1991, informing him that the bank had changed the locks on the residence and that Sarvis should arrange to remove his remaining personal belongings from the residence. On July 12, bank counsel, acting on behalf of the bank, wrote to the chief of police in Nantucket, advising him that the bank had become owner of the 22 Brant Point Road property through a fоreclosure sale, that “certain unauthorized individuals had recently attempted to gain access to [the property],” and that the bank might seek his “assistance if such unauthorized activity persists.” Attorney Michael S. Field, representing Mr. Sarvis, acknowledged DeChristofaro’s July 11 letter with a phone call, stating that his client had a right to possession of the property and suggesting that they agree upon a date by which Mr. Sarvis would vacate the property. He confirmed their conversation by letter dated July 22. DeChristofaro responded to Field’s letter with his own, dated July 30, explaining the bank’s “position” that it was entitled to possession because Mr. Sarvis had “abandoned” the property and thаt “any attempt at entry onto the premises will be considered trespassing.”
During late July, 1991, Daume visited the property frequently. Whenever he saw the plaintiffs, he told them that they had to leave, or be arrested. If the plaintiffs were not at home, Daume
On August 5, 1991, the bank received a $730,000 offer to purchase the property. DeChristofaro, on behalf of the bank, accepted that offer. On August 7, Daume wrote to DeChristofaro, as requested, informing him that he had inspected the property and discovered, despite having changed the locks, that it remained occupied and contained furniture and men’s and women’s clothing. Daume also wrote that “[t]he only articles removed from the house were food from [the] refrigerator and [the] freezer and trash. The cleaning woman [sent by the bank] removed [only the] garbage, paper, and junk .... Nothing еlse was removed!” Internal bank memos contained entries that, as of September, Mr. Sarvis still had not vacated the property. The bank filed a summary process action against Mr. Sarvis in October. He moved out around mid-October. The bank obtained a judgment for possession on November 5.
1. Denial of the motion for judgment n.o.v. a. The MCRA claim, (i) Sufficiency of the evidence. The defendants argue that they are entitled to judgment n.o.v. because the evidence was insufficient to establish a violation of G. L. c. 12, §§ 11H-11I
Plaintiffs base their MCRA claim on the right not to be еvicted except by summary process. See G. L. c. 239, § 1; G. L. c. 184, § 18.
When reviewing the denial of a motion for judgment n.o.v., we must ask “whether ‘anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff.’ ” Poirier v. Plymouth,
“To establish a claim under the [MCRA], the plaintiffs must prove that (1) their exercise or enjoyment of rights secured by. the Constitution or laws of either the United States or of the Commonwealth, (2) have been interfered with, or attempted to be interfered with, and (3) that the interference or attempted interference was by ‘threats, intimidation or coercion.’ ” Swanset Dev. Corp. v. Taunton,
Under the MCRA, a “ ‘[tjhreat’ . . . involves the intentional
Daume and DeChristofaro repeatedly told the plaintiffs and their attorney that the plaintiffs would be arrested if they did not vacate the property. That the defendants saw fit to express in a business-like tone their intent to have others physically engage the plaintiffs does not alter the nature of their conduct. They forewarned of a confrontation with police if the plаintiffs did not do as they suggested. While the plaintiffs may not have felt threatened or intimidated, they were concerned enough to discuss events promptly with their father and their attorney and were assured that they had a right to occupy the property, so they stood ground. Evidence of “threats, intimidation, or coercion” is to be measured by an objective standard, not the state of mind of the person threatened. Planned Parenthood League of Mass., Inc. v. Blake, 417 Mass, at 474-475. Daume’s and DeChristofaro’s statements could reasonably be viewed as threats within the meaning of the MCRA.
After their threats proved ineffective, though not for want of effort, the defendants pressed the Nantucket police, fully expecting that the plaintiffs would be аrrested if the police saw them at the property. The arrests and detention of the plaintiffs by police were intrinsically coercive and, thus, sufficient to meet
The defendants contend that there can be no liability under the MCRA because the arrests were a direct violation of the plaintiffs’ rights. See Longval v. Commissioner of Correction,
Here, the defendants attempted to interfere with the plaintiffs’ right to a summary process hearing by threatening them with arrest and then bringing about their arrests. The threats and coercion were not a direct violation of the right to a summary process hearing, but the means by which the defendants interfered with its enjoyment. The arrests were motivated, inferentially, by the defendants’ desire to remove the plaintiffs from the property without having to observe their right to summary process. As more than a direct violation was involved, the requirements of the MCRA were met. See Longval, 404 Mass, at 333.
The defendants next contend that they did not violate the MCRA because their request for police involvement was no more than a petition for the redress of a grievance. See Bell v.
(ii) Respondeat superior. The bank argues that the MCRA does not impose liability on private employers based on a theory of respondeat superior. It concedes that an employer may be held liable for a civil rights violation by an employee, but only if it is shown that the employee acted in accordance with the employer’s policy or custom. The argument presents a question not addressed previously either by the Supreme Judicial Court or by this court.
The defendants rely upon Lyons v. National Car Rental Sys., Inc.,
“Though we always treat their decisions with deference, we are not bound by decisions of Federal courts except the decisions of the United States Supreme Court on questions of Federal law.” Commonwealth v. Montanez,
Our “primary function in interpreting any statute is to ascertain the ‘intent of the Legislature, as evidenced by the language used, and considering the purposes and remediеs intended to be advanced.’ ” Deas v. Dempsey,
The MCRA forbids “any person or persons” from interfering by threats, intimidation, or coercion with another’s enjoyment of his or her civil rights. G. L. c. 12, § 11H. The Legislature has directed that “[i]n construing statutеs . . . unless a contrary intention clearly appears . . . [the word] ‘[p]erson’ . . . shall include corporations, societies, associations and partnerships” (emphasis added). G. L. c. 4, § 7, Twenty-third. See Commonwealth v. ELM Med. Labs., Inc.,
A corporation is a creature of the law, a “separate and distinct legal entity . . . [that] can only act through its agents.” Sunrise Properties, Inc. v. Bacon, Wilson, Ratner, Cohen, Salvage, Fialky & Fitzgerald, P.C.,
Our decisions have impliedly recognized that a plaintiff may state a cause of action under the MCRA against a private employer based on respondeat superior. See Pheasant Ridge Assocs. Ltd. Partnership v. Burlington,
The evidence warranted findings that DeChristofaro was an agent of the bank and acted in the scope of his employment. His involvement occurred in the course of preparing the property for sale, which included the removal of occupants. He was also furthering the bank’s interests by pursuing a quick turnover for a substantial gain. See Wang Labs., Inc. v. Business Incentives, Inc., 398 Mass, at 859. Daume and Lee, though independent contractors, acted at the direction and under the control of DeChristofaro, and as such were agents of the bank for purposes of its vicarious liability. See Corsetti v. Stone Co.,
b. The false imprisonment claim. The defendants also challenge the denial of their motion for judgment n.o.v. as to the claim for false imprisonment. They argue that they did not participate in the arrest and that the evidence did not establish a conspiracy to do so.
A person may be liable for false imprisonment not only when
c. Res judicata. The defendants argue that the plaintiffs are barred by res judicata from relitigating claims involving their wrongful eviction or removal from the property because their father litigated the same claims and issues in a prior action with the bank and that they were in privity with him as to those matters.
The term “res judicata” includes both claim preclusion and issue preclusion. Heacock v. Heacock,
The doctrine of issue preclusion “prevents relitigation of an issue determined in an earlier action where the same issue arises in a later action, based on a different claim, between the same parties or their privies.” Id. at 23 n.2. It requires proof that “(1)
The prior action was brought by the bank against Mr. Sarvis in December, 1991, to recover the deficiency due on the promissory note secured by the mortgage оn the property. Mr. Sarvis asserted a multiple count counterclaim against the bank, including a claim (count III) that the bank “wrongfully induced the police to come upon said property and remove members of [his] family who were lawfully residing therein . . . without due process of law.” He sought damages only for himself. The plaintiffs were not parties to that action. The bank moved for summary judgment, and on June 4, 1992, a Superior Court judge (not the judge who presided over the trial presently on review) dismissed count HI. The judge reasoned that since the bank complied with the notice and publication requirements of G. L. c. 244, § 14, relating to foreclosure sales, Mr. Sarvis’s rights in the property were foreclosed, and count III of his counterclaim, which fixe judge termed “an action for wrongful eviction,” necessarily fails.
We agree that plaintiffs probably stood in privity with their father as to his interest in the property. See Old Dominion Copper Mining & Smelting Co. v. Bigelow,
There was nо privity between the plaintiffs and their father as to their civil rights and false imprisonment claims. Such claims were independent of any claim Mr. Sarvis may have had against the defendants. “[I]t creates no privity between two parties that, as litigants in two different suits, they happen to be interested in proving or disproving the same facts.” Sturbridge v. Franklin,
The defendants have'failed to show that the plaintiffs’ claims were actually litigated in the prior action. “It is a violation of due process for a judgment to be binding on a litigant who was not a party or a privy and therefore has never had an opportunity to be heard.” Massachusetts Property Ins. Underwriting Assn. v. Norrington,
2. Jury instructions. The defendants argue the judge committed reversible error in several aspects of the jury instructions. They challenge the judge’s instructions on the separate issues of conspiracy and superseding causes. In addition, they argue the judge committed reversible error by emphasizing “abandonment” as a “key” issue in the case.
The trial judge maintains discretion in charging the jury, and a charge is to be read as a whole in determining whether the jury were properly instructed. See O’Connor v. Raymark Indus.,
There was no error in the judgе’s refusal to instruct that false imprisonment could be established by proof that the defendants conspired with the police, where there was no evidence to support that theory. As we stated, infra, the plaintiffs were not required to prove that the defendants conspired to cause the plaintiffs’ arrest. The judge correctly instructed the jury in accordance with the alternative requested by the defendants, that the plaintiffs must prove the defendants “acted in a way purposefully calculated to bring about incarceration.”
The defendants now claim that the judge’s failure also to instruct on conspiracy violated a promise to so charge. We find no express promise to charge on conspiracy, and the defendants never reminded the judge of any promise to so charge, having had the opportunity to do so after the judge instmcted the jury and before they retired to deliberate.
We also reject the defendants’ argument that the judge erred by remarking to the jury in his instructions that the question of plaintiffs’ “abandonment” of the property was “the key” issue in the trial. Defendants objected to the judge’s use of the word “the,” and he obliged by telling the jury that it was “a key” issue. There was no objection to the charge as corrected. The issue of abandonment was vigorously presented by the defendants. The judge’s instructions as a whole were corrеct, and we conclude there was no error where the words in question were
3. Remittitur. The defendants also appeal from the judge’s denial of their motion for a new trial on the issue of damages. They contend that they were entitled to a remittitur because the jury award of $45,000 to each plaintiff was excessive. They contend that because the plaintiffs suffered only “minor” inconvenience, emotional upset, and embarrassment, the award was excessive.
The denial of a motion based on excessive damages is discretionary. See Freeman v. Wood,
The orders denying the defendants’ motion for judgment n.o.v. and motion for a new trial are affirmed. The judgments are affirmed.
So ordered.
Notes
The jury found for the defendants on the plaintiffs’ claims of malicious prosecution, abuse of process, defamation, intentional infliction of emotional distress, and civil rights violations under 42 U.S.C. § 1983. The plaintiffs did not appeal from the judgment on those counts.
General Laws c. 12, § 11H, as inserted by St. 1979, c. 801, § 1, provides in pertinent part as follows: “Whenever any person or persons, whether or not acting under color of law, interfere by threats, intimidation or coercion, or attempt to interfere by threats, intimidation or coercion, with the exercise or enjoyment by any other person or persons of rights secured by the constitution or laws of the United States,- or of rights secured by the constitution or laws of the commonwealth, the attorney general may bring a civil action for injunctive or other appropriate equitable relief in order to protect the peaceable exercise or enjoyment of the right or rights secured.”
General Laws c. 12, § 111, as inserted by St. 1979, c. 801, § 1, provides as follows: “Any person whose exercise or enjoyment of rights secured by the constitution or laws of the United States, or of rights secured by the constitution or laws of the commonwealth, has been interfered with, or attempted to be interfered with, as described in section 11H, may institute and prosecute in his own name and on his own behalf a civil action for injunctive and other appropriate equitable relief as provided for in said section, including the award of compensatory money damages. Any aggrieved person or persons who prevail in an action authоrized by this section shall be entitled to an award of the costs of the litigation and reasonable attorneys’ fees in an amount to be fixed by the court.”
General Laws c. 239, § 1, states in relevant part: “If ... a mortgage of land has been foreclosed by a sale under a power therein contained or otherwise, or if a person has acquired title to land or tenements by purchase, and the seller or any person holding under him refuses to surrender possession thereof to the buyer, ... the person entitled to the land or tenements may recover possession thereof under this chapter.”
General Laws c. 184, § 18, states in relevant part: “No person shall attempt to recover possession of land or tenements in any manner other than through an action brought pursuant to chapter two hundred and thirty-nine or such other proceedings authorized by law.”
Although the defendants raise no issue as to which legal theory or theories (there were two: that there was an unreasonable seizure under the Fourth Amendment and that there was an eviction without due process) the jury accepted under the MCRA, and in view of the fact that the special verdict questionnaire did not ask the jury to specify, we assume that the jury rejected the theory that the defendants conspired with police to violate plaintiffs’ rights under the Fourth Amendment, the same theory under which plaintiffs proceeded, unsuccessfully, as to their § 1983 claim. Compare Adickes v. Kress & Co.,
The Supreme Court has “held that [42 U.S.C. § 1983] safeguards certain rights conferred by federal statutes. Maine v. Thiboutot,
But see Swanset Dev. Corp. v. Taunton, 423 Mass, at 396 n.ll, where the Court “assumed .without deciding the point that coercion which does not involve physical force might violate” the MCRA.
In Monell, the Supreme Court reexamined its holding in Monroe v. Pape,
“[I]t is a widely accepted rule of statutory construction that general words in a statute such as ‘persons’ will not ordinarily be construed to include the State or political subdivisions thereof.” Hansen v. Commonwealth,
The defendants argue in a footnote that the judge excluded evidence that rebutted the plaintiffs’ argument that the Nantucket police acted solely upon
In the absence of a possessory interest in land, an action in tort for wrongful eviction cannot be maintained. See Sottile v. Kaufman,
Concurrence Opinion
(concurring). This opportunistic private action by two individuals who were well aware that they no longer had a right to occupy the premises they had hunkered down in trivializes the noble purpose of the Massachusetts Civil Rights Act. See Batchelder v. Allied Stores Corp.,