FRANK C. CHIODO, JR. v. TOWN OF BOLTON & Another. ( 2024 )

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
23-P-682
FRANK C. CHIODO, JR.1
vs.
TOWN OF BOLTON & another.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Frank C. Chiodo, Jr., filed suit against the town of
Bolton (town) and former town official Joseph Lynch, alleging
defamation, violations of the Massachusetts Civil Rights Act,
G. L. c. 12, §§ 11H, 11I (MCRA), and intentional interference
with advantageous relations, among other claims. The claims
stemmed from a series of events that occurred while Lynch was
the director of the department of public works for the town. A
Superior Court judge allowed the defendants' motion for summary
judgment, and Chiodo appeals, principally arguing that there are
1 Doing business as F.C. Chiodo, Jr. Excavating Company.
2Joseph Lynch, individually and in his capacity as the
director of public works of the town of Bolton.
disputed issues of fact precluding summary judgment on his
defamation claim against Lynch. In addition, Chiodo challenges
the grant of summary judgment on his claims under the MCRA and
for intentional interference with advantageous relations and
argues that the judge erred by denying his motion to compel the
production of certain documents. We affirm.
Background. We summarize the material facts in the light
most favorable to Chiodo, the nonmoving party. See Cesso v.
Todd, 92 Mass. App. Ct. 131, 132 (2017). Lynch served as the
town's director of the department of public works at all
relevant times. As part of his role, Lynch assisted with
reviewing bids and proposals for a project to install
underground propane tanks at a local school. At a meeting in
the fall of 2017, Chiodo critiqued Lynch's suggestion to use a
less costly method as "patently unsafe and improper." The town
awarded the contract to Chiodo, and he successfully completed
the project.
Chiodo contracted again with the town during the winter of
2017 to 2018, this time to provide snowplowing services. During
a snowstorm in March 2018, Lynch confronted two of Chiodo's
employees, accused them of poor work practices, and yelled at
them using inappropriate language. After the confrontation
Chiodo terminated his plowing contract with the town.
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About a year later in early 2019, Lynch contacted Bill
Brookings, a member of the town's board of health (board), to
complain of tree clearing, excavation activity, and suspected
improper burying of tree stumps on Chiodo's property, which was
located directly across from Lynch's office. Lynch suggested
that the board may want to look into the matter. Lynch also
informed the town administrator, Donald Lowe, about the issue.
At his deposition Lowe testified that his conversation with
Lynch went as follows:
"Mr. Lynch told me that he observed while Mr. Chiodo was
clearing property that he owned across the street from the
D.P.W. of trees, that in his opinion, he didn't see a lot
of material being shipped off the -- or trucked off the
property, and he speculated that Mr. Chiodo may be burying
stumps on the property."
The board contacted Chiodo to inform him of the complaint and
requested that he attend a board meeting, which he did.
Ultimately, the board did not order Chiodo to do anything
related to the complaint. Acting on his own accord, however,
Chiodo had test holes excavated on his property to prove that he
had not buried any tree stumps.
Based on these events, Chiodo filed suit raising numerous
claims against both Lynch and the town. Only the following are
at issue on appeal. First, Chiodo claimed that Lynch defamed
him by complaining to Brookings and Lowe about the potential
burying of tree stumps on his property. Second, Chiodo claimed
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that Lynch interfered or attempted to interfere with his free
speech and petitioning rights through threats, intimidation, or
coercion in violation of the MCRA. Third, Chiodo claimed that
Lynch intentionally interfered with his advantageous relations
("snow plowing" and "new business") with the town. As noted,
Chiodo appeals from the grant of summary judgment for the
defendants on these claims.3
Discussion. 1. Summary judgment. We review a grant of
summary judgment de novo to determine "whether, viewing the
evidence in the light most favorable to the nonmoving party, all
material facts have been established and the moving party is
entitled to judgment as a matter of law." See Matter of the
Estate of Urban, 102 Mass. App. Ct. 284, 289-290 (2023), quoting
Molina v. State Garden, Inc., 88 Mass. App. Ct. 173, 177 (2015).
Where, as here, the nonmoving party will have the burden of
proof at trial, summary judgment is appropriate if the nonmoving
party "has no reasonable expectation of proving an essential
element of that party's case" (citation omitted). Bourque v.
Cape Southport Assocs., LLC, 60 Mass. App. Ct. 271, 277 (2004).
a. Defamation. To prove defamation, a plaintiff must
establish, among other elements, that "the defendant published a
3 Chiodo raises either no argument or inadequate argument
about the grant of summary judgment on his remaining claims,
which we therefore need not address. See Mass. R. A. P.
16 (a) (9), as appearing in 481 Mass. 1628 (2019).
4
defamatory statement of and concerning the plaintiff" and that
"the statement was a false statement of fact (as opposed to
opinion)." Lawless v. Estrella, 99 Mass. App. Ct. 16, 18-19
(2020). The "plaintiff must specifically identify the allegedly
false statement" in the complaint. Kelleher v. Lowell Gen.
Hosp., 98 Mass. App. Ct. 49, 53 n.2 (2020). To be actionable,
the identified statement "must reasonably be understood either
as a statement of actual fact, or one that implies defamatory
facts." Id. at 53. Statements that merely "express a
'subjective view,' are not statements of actual fact." Id.
Here, while the complaint refers generally to Lynch's
"accusations" and "allegations" that Chiodo was burying tree
stumps on his property, it does not identify any specific words
spoken by Lynch, let alone identify a statement that could
reasonably be understood as a statement of actual fact. Even on
appeal, Chiodo fails to identify the allegedly false statement
with any specificity. See Kelleher, 98 Mass. App. Ct. at 53 n.2
("The plaintiff's allegation that the defendant made statements
that 'cast the plaintiff in a negative light,' but that does not
identify a specific statement, is not sufficient"). To the
extent Chiodo relies on Lowe's deposition testimony, that
testimony does not show that Lynch made a false statement of
fact. As Lowe testified, Lynch "speculated" that Chiodo "may"
be burying tree stumps and conveyed that this was his "opinion"
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based on his not "see[ing] a lot of material being . . . trucked
off the property." This constituted a nonactionable statement
of opinion, as Lynch's "use of cautionary terms" relayed that he
was "indulging in speculation" based on what he saw occurring on
Chiodo's property. Scholz v. Delp, 473 Mass. 242, 251 (2015),
quoting King v. Globe Newspaper Co., 400 Mass. 705, 713 (1987).
See Lyons v. Globe Newspaper Co., 415 Mass. 258, 266 (1993)
(statement not actionable because it "indicated to the
reasonable reader that the proponent of the expressed opinion
engaged in speculation and deduction based on the disclosed
facts").
Chiodo points to no other evidence that Lynch made a
statement that reasonably could be understood as a factual
assertion that Chiodo was burying tree stumps on his property.
Although Chiodo claims that Lynch also made defamatory
statements to Brookings, Chiodo did not depose Brookings or
submit any evidence about what Lynch said to him or to any other
member of the board. Thus, the summary judgment record does not
show that Lynch made a false statement of fact, as opposed to
opinion. For at least this reason, summary judgment was
properly granted for Lynch on the defamation claim.
b. MCRA. A successful MCRA claim requires proof "that the
defendant[] used 'threats, intimidation or coercion' to
interfere with, or attempt to interfere with, rights secured by
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the Constitution or laws of the United States or the
Commonwealth of Massachusetts." Mancuso v. Massachusetts
Interscholastic Athletic Ass'n, 453 Mass. 116, 131 (2009),
quoting Brum v. Dartmouth, 428 Mass. 684, 707-708 (1999).
Although it is unclear from the complaint what Chiodo alleges to
be the "threats, intimidation or coercion" engaged in by Lynch,
on appeal he points to "the snow plowing incident and the false
and defamatory tree stump burial allegations." According to
Chiodo, these incidents interfered with or constituted an
attempt to interfere with his rights to free speech and to
petition the government.
Chiodo's claims under the MCRA were properly dismissed
because he did not offer evidence, or even allege, that Lynch
took some act that, "objectively viewed, would cause a person
not to exercise a constitutional right or deprive that person of
that right." Doe v. Senechal, 66 Mass. App. Ct. 68, 79 (2006).
Chiodo makes no allegation that the snowplowing incident or the
complaint about the tree stumps constrained him from speaking or
from petitioning the government. Instead, the basis of his
claims is that Lynch's conduct was retaliation for Chiodo's
prior speech, namely, his criticism of Lynch at the 2017
meeting. But Chiodo cites no authority supporting the
proposition that retaliation is cognizable under the MCRA, nor
does he explain how his theory can be reconciled with the
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statutory language, which requires a showing that the defendant
"interfere[d]" or "attempt[ed] to interfere" with a secured
right. G. L. c. 12, §§ 11H, 11I. See Doe, supra (summary
judgment properly granted on MCRA claim where no evidence that
defendant's conduct "constrain[ed] [plaintiff] against her will
to do something she would not otherwise have done").4 His MCRA
claims thus fail as a matter of law.
c. Intentional interference with advantageous relations.
An essential element of the tort of intentional interference
with advantageous relations is that the defendant "knowingly
induced a breaking" of the plaintiff's "advantageous
4 The only case Chiodo cites (for the first time in his
reply brief) is a Federal case, Najas Realty, LLC v. Seekonk
Water Dist., 821 F.3d 134 (1st Cir. 2016), which expressly
recognizes that "the MCRA is narrower than [42 U.S.C.] § 1983 in
that it limits its remedy to conduct that interferes with a
secured right 'by threats, intimidation or coercion.'" Id. at
141 n.8, quoting Nolan v. CN8, 656 F.3d 71, 76 (1st Cir. 2011).
See Sena v. Commonwealth, 417 Mass. 250, 262 (1994) ("whereas
§ 1983 provides relief for direct violations of one's rights,
relief under [the MCRA] is available only where one's rights are
interfered with or attempted to be interfered with by threats,
intimidation, or coercion"). We note also that, even assuming
retaliation is cognizable under the MCRA, Chiodo offered no
evidence to suggest a causal connection between his comments at
the 2017 meeting and Lynch's later actions. Cf. Mole v.
University of Mass., 442 Mass. 582, 592-593 (2004) (defendant
entitled to directed verdict on retaliation claim under G. L.
c. 151B, where plaintiff did not present sufficient evidence of
causal link between protected conduct and adverse action);
Najas, supra at 141-143 (defendant entitled to judgment on the
pleadings on retaliation claim under § 1983 where complaint did
not plausibly establish causal link between protected conduct
and alleged retaliatory response).
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relationship with a third party." See Blackstone v. Cashman,
448 Mass. 255, 260 (2007). Chiodo has no reasonable expectation
of proving this element of his claim. Although he suggests that
Lynch interfered with his plowing contract with the town, it is
undisputed that Chiodo voluntarily terminated that contract in
2018. Moreover, Chiodo testified in his deposition that,
despite terminating the contract, he continued to plow for the
local schools. As Chiodo points to no other relationship that
Lynch allegedly interfered with, summary judgment was
appropriate.
2. Motion to compel. Chiodo also appeals from the judge's
denial of his motion to compel unredacted minutes from an August
12, 2020 meeting of the town's board of selectmen.5 The
defendants provided Chiodo with redacted minutes from the
meeting -- at which the board of selectmen discussed Lynch's
separation of employment from the town -- but Chiodo later moved
to compel the unredacted minutes. After a hearing and an in
camera review of the unredacted minutes, the judge denied
Chiodo's motion on the grounds that the records were protected
5 We are unpersuaded by the defendants' assertion that
Chiodo did not preserve this issue because he failed to
designate it in his notice of appeal. "The notice of appeal
need not designate prejudgment orders that are appealable as
part of the judgment . . . designated in the notice of appeal."
Mass. R. A. P. 3 (c) (1) (B), as appearing in 491 Mass. 1601(2023).
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by attorney-client privilege and irrelevant. Chiodo fails to
explain on appeal why this was an abuse of discretion. See
Cardone v. Boston Reg'l Med. Ctr., Inc., 60 Mass. App. Ct. 179,
191 (2003) ("The conduct and scope of discovery is within the
sound discretion of the judge"). The issue is therefore waived.
See Mass. R. A. P. 16 (a) (9), as appearing in 481 Mass. 1628(2019).6
Judgment affirmed.
By the Court (Massing, Shin &
D'Angelo, JJ.7),
Clerk
Entered: August 19, 2024.
6 We deny the defendants' request for attorney's fees as
they have not provided a basis for the request. See Mass.
R. A. P. 16 (a) (10), as appearing in 481 Mass. 1628 (2019).
The defendants are entitled to the costs of the appeal in the
ordinary course. See Mass. R. A. P. 26 (a), as appearing in 481
Mass. 1655 (2019).
7 The panelists are listed in order of seniority.
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