KIRBY MASTRANGELO & Others v. CITY OF AMESBURY & Others. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-663
KIRBY MASTRANGELO & others1
vs.
CITY OF AMESBURY & others.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiffs appeal from the entry of summary judgment
against them in the Superior Court. Two counts from the
plaintiffs' first amended complaint are at issue: one alleging
that the former mayor of Amesbury, C. Kenneth Gray (mayor), in
his individual capacity,3 intentionally interfered with the
plaintiffs' advantageous economic relationship with the Cannabis
Control Commission (commission), and the other seeking
declaratory and injunctive relief against the mayor and the city
of Amesbury. We affirm.
1 Candace Kattar and CKR Natural Solutions, LLC (CKR).
2 C. Kenneth Gray, individually and in his capacity as Mayor of
the city of Amesbury, and the Cannabis Control Commission.
3 The plaintiffs' intentional interference claim against Mayor
Gray in his official capacity was previously dismissed and is
not before us.
Discussion. We review a decision on a motion for summary
judgment de novo without deference to the motion judge. Boelter
v. Selectmen of Wayland, 479 Mass. 233, 237 (2018). "Summary
judgment is appropriate where there are no material facts in
dispute and the moving party is entitled to judgment as a matter
of law." Federal Nat'l Mtge. Ass'n v. Rego, 474 Mass. 329, 332
(2016). We may consider any ground that supports the judgment.
Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).
1. Intentional interference. The plaintiffs assert two
primary claims of error in the motion judge's decision entering
summary judgment for the mayor on their intentional interference
claim. First, the plaintiffs argue that the judge erred by
applying a heightened actual malice standard to the "improper
motive or means" element of the tort of intentional interference
with an advantageous economic relationship. Second, they assert
that, even if the actual malice standard applied here, there is
sufficient evidence in the record from which a jury could infer
that the mayor acted with malice. The plaintiffs' brief is
silent, however, on the alternative ground supporting the motion
judge's decision -- i.e., common-law immunity. See Gildea v.
Ellershaw, 363 Mass. 800, 820 (1973). Accordingly, the issue is
waived. See Abate v. Fremont Inv. & Loan, 470 Mass. 821, 833
(2015) (failure to address issue on appeal waives right to
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appellate review); Sullivan v. Liberty Mut. Ins. Co., 444 Mass.
34, 35 n.1 (2005) (same).
Even if the issue were not waived, we agree with the motion
judge that the mayor is shielded from liability by the common-
law immunity doctrine. Under Massachusetts common law, "a
public official, exercising judgment and discretion, is not
liable for negligence or other error in the making of an
official decision if the official acted in good faith, without
malice, and without corruption." Nelson v. Salem State College,
446 Mass. 525, 537 (2006). The mayor's decision to not enter a
host community agreement (HCA)4 on behalf of the city with CKR
and instead request that the plaintiffs first obtain a special
permit from the planning board was a discretionary act.5 See
Mederi, Inc. v. Salem, 488 Mass. 60, 66 (2021) ("a municipality
4 "A host community agreement is an agreement between the
prospective marijuana establishment and the host community
'setting forth the conditions to have a marijuana establishment
. . . located within the host community.'" CommCan, Inc. v.
Mansfield, 488 Mass. 291, 292 n.3 (2021), quoting G. L. c. 94G,
§ 3 (d). "An applicant must provide the commission with proof
of an HCA as part of its application for a license." Mederi,
Inc. v. Salem, 488 Mass. 60, 63 (2021), citing 935 Code Mass.
Regs. § 500.101(1)(a)(8) (2021).
5 The commission requires that applications to operate a retail
marijuana establishment (RME) include, among other things,
certification of an HCA with the host municipality, completion
of a community outreach meeting, and a description of plans to
ensure compliance with all local codes, ordinances, and bylaws.
935 Code Mass. Regs. § 500.101(1)(a)(8)-(10) (2021).
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may use its discretion in determining whether to enter into an
HCA with a prospective retail establishment").
Here, the mayor submitted affidavits stating he requested
the plaintiffs to first obtain a permit from the planning board
in response to local opposition to CKR's plans, including
opposition from a councilor. The burden then shifted to the
plaintiff to show a dispute of material fact as to malice or bad
faith. See Godbout v. Cousens, 396 Mass. 254, 261-262 (1985)
(discussing shifting burdens of proof on summary judgment). The
plaintiffs did not submit any admissible evidence that the mayor
harbored any personal hostility or ill will toward the
plaintiffs. Also absent from the summary judgment record is
evidence that the mayor's decision was motivated by revenge, cf.
Cachopa v. Stoughton, 72 Mass. App. Ct. 657, 665 (2008) (no
summary judgment on common-law immunity where the plaintiff
produced evidence from which a jury could infer that official's
conduct motivated by revenge, raising inference of malice), or a
"spiteful, malignant purpose, unrelated to [a] legitimate
[municipal] interest" (citation omitted), Blackstone v. Cashman,
448 Mass. 255, 263 (2007). Nor has the plaintiff offered
evidence to support an inference of bad faith. See Buffalo-
Water 1, LLC v. Fidelity Real Estate Co., 481 Mass. 13, 25-26
(2018) (bad faith suggests "'a dishonest purpose or some moral
obliquity,' a 'conscious doing of wrong,' or a 'breach of a
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known duty through some motive of interest or ill will'"
[citation omitted]). The plaintiffs' theory that the mayor held
them to a different standard because of their economic
empowerment (EE) status6 rests more on conjecture and speculation
than rational inferences of probabilities from established facts
where, as here, there was opposition to the application, and the
mayor simply asked that the planning board review the
application.7 See Gram v. Liberty Mut. Ins. Co., 384 Mass. 659,
6 "Economic empowerment priority applicants are, broadly
speaking, those applicants from communities that have been
disproportionately harmed by marijuana law enforcement
(particularly Black, Hispanic, and Latino communities)."
Mederi, Inc., 488 Mass. at 62, citing 935 Code Mass. Regs.
§ 500.002 (2021). "The commission statutorily is required to
prioritize such applicants." Id., citing G. L. c. 94G, § 4 (a
1/2) (iv). See 935 Code Mass. Regs. § 500.102(2)(a) (2021).
7 The plaintiffs’ argument that the requirement that they obtain
a special permit in the first instance put them into an "endless
loop" (because they could not obtain a permit without a
commission application, they could not submit a commission
application without an HCA, and they could not get an HCA
without a permit) is unavailing. The argument is premised on
theoretical hurdles based on regulatory interpretation, rather
than on a factual record of obstruction. For example, the
record reflects that the plaintiffs did initiate the commission
application process, and there is nothing in the record to
suggest that the planning board refused to consider the
plaintiffs for a special permit due to the absence of a complete
commission application. We have also considered the plaintiffs'
argument that the mayor acted unlawfully by entering into an HCA
with two other parties in October 2018 before either applicant
had received a special permit from the planning board, while
requiring the plaintiffs to obtain a special permit in the first
instance. This claim is without merit because no statute,
regulation, or city ordinance explicitly states the order in
which an RME applicant must obtain a special permit or an HCA.
Further, although the statutory and regulatory scheme requires
economic empowerment applicants to receive priority review by
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664 (1981), quoting Alholm v. Wareham, 371 Mass. 621, 627 (1976)
("reasonable inference of malice must . . . be 'based on
probabilities rather than possibilities'"). See also South
Boston Betterment Trust Corp. v. Boston Redev. Auth., 438 Mass.
57, 69 (2002) ("there is every presumption in favor of the
honesty and sufficiency of the motives actuating public officers
in actions ostensibly taken for the general welfare" [citation
omitted]).
At bottom, there is insufficient evidence on this record to
justify a trial on whether the mayor acted in bad faith, with
malice, or corruptly. See South Boston Betterment Trust Corp.,
438 Mass. at 69. Summary judgment was properly entered for the
mayor on the plaintiffs' intentional interference claim.
2. Declaratory judgment. The count for declaratory
judgment was also properly dismissed. At the time of summary
judgment, the declaratory judgment count applied only to the
city and the mayor, as the commission had been dismissed from
the litigation by stipulation of the parties. With respect to
any declaration concerning the city and the mayor, the complaint
alleged that the city and/or the mayor violated G. L. c. 94G and
"abused their powers" by placing unreasonable obstacles before
the commission, "municipalities, as the de facto gatekeepers to
such priority application review, are not required to consider
whether any entity seeking to enter an HCA is an economic
empowerment priority applicant." Mederi, Inc., 488 Mass. at 72.
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the plaintiffs to obtain an HCA and by manipulating the process
to preclude them, as EE priority applicants, from obtaining
commission approval. Although the complaint alleged that
declaratory relief was sought "to secure a determination of the
relative rights, duties, status, and legal relationship of the
Plaintiffs as EE applicants, the Mayor and/or the City and the
[commission]" pursuant to G. L. c. 94G, it did not request any
particular declaration.8 As such, the judge was entirely within
his discretion in concluding that the request for declaratory
relief was too amorphous to address. See Everett v. Local 1656,
Int'l Ass'n of Firefighters, 411 Mass. 361, 369 (1991), citing
G. L. c. 231A, § 3 (judge, in his discretion, may decline
declaratory relief if it would serve no useful purpose).9
Judgment affirmed.
By the Court (Vuono,
Sullivan & Singh, JJ.10),
Clerk
Entered: April 5, 2023.
8 Within the count for declaratory judgment was a request for
injunctive relief; however, all requests for injunctions were
against the dismissed party, the commission.
9 We recognize that the judge dismissed the declaratory judgment
count as moot since necessary parties had been dismissed from
the litigation and the plaintiffs had no pending application
with the city. We may affirm on any ground apparent from the
record. See O’Keeffe v. Dwyer & Duddy, P.C., 100 Mass. App. Ct.
671, 676 n.10 (2022).
10 The panelists are listed in order of seniority.
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