Setters v. Boyd

The plaintiff appeals from a judgment dated September 22, 2011, dismissing his complaint for defamation for failure to state a claim upon which relief can be granted. See Mass.R.Civ.P. 12(b)(6), 365 Mass. 754.

Background. The present case arises out of an earlier proceeding in which the plaintiff sued the defendants to establish an easement over land they held in trust (first action). On December 3, 2007, the trial judge filed a memorandum of decision that recognized an easement by necessity in the plaintiff's favor, though not on the precise terms requested by the plaintiff. On June 20, 2007, the plaintiff filed a second complaint against the defendants alleging that they had defamed him when, in a pretrial memorandum filed in the first action, they asserted that the plaintiff, while an assessor for the town of Somerset (town), promised to raise taxes on their property unless they sold it to him at a discounted price, and by listing the plaintiff's business partner and his supervisor at the town's assessor's office as witnesses. Eventually, the question whether the plaintiff's claim stated a viable cause of action came before a judge of the Superior Court who, on February 24, 2011, denied the defendants' motion to dismiss. The judge, however, on his own initiative, decided to reconsider the matter. The parties were given the opportunity to file additional briefs and another hearing was conducted on September 14, 2011. The judge issued a comprehensive memorandum of decision in which he reconsidered and allowed the defendants' motion to dismiss under Mass.R.Civ.P. 12(b)(6), because the statements attributed to the defendants in their pretrial memorandum filed in the first action were absolutely privileged.

Discussion. The law is settled that statements made in the course of, and pertaining to, a judicial proceeding are absolutely privileged, and, even if made with malice and in bad faith[,] cannot be the basis of an action for defamation. Correllas v. Viveiros, 410 Mass. 314, 319 (1991). Here, the allegedly defamatory statements were made in the course of, and related to, a judicial proceeding; namely, the first action between the parties. As such, they cannot form the basis of a claim for defamation. See Hartford v. Hartford, 60 Mass.App.Ct. 446, 452 (2004). The plaintiff argues, for the first time on appeal, that the defendants also made statements outside the judicial proceedings that support his claim for defamation. However, as these general allegations were not set forth in his complaint, which he did not seek to amend, and are not supported by an affidavit or otherwise verified as required by Mass.R.Civ.P. 56(e), 365 Mass. 824 (1974), there was no basis to defer the resolution of the case until a motion for summary judgment. See Godbout v. Cousens, 396 Mass. 254, 263 (1985) (Allegations in an unverified pleading are not accorded any evidentiary weight in determining whether there exists a genuine issue of material fact under rule 56[c] ) (footnote omitted).The defendants have requested appellate attorney's fees, which we may award in our discretion when an appeal is deemed to be frivolous. A frivolous appeal is one in which the law is settled and the appealing party presents no reasonable expectation of a reversal. See Avery v. Steele, 414 Mass. 450, 455 (1993). For the above reasons, this is such a case. The judge's memorandum of decision was comprehensive and identified the controlling authorities. Therefore, in accordance with the procedure set out in Fabre v. Walton, 441 Mass. 9, 10–11 (2004), the defendants may submit to the Clerk of the Appeals Court a detailed affidavit supporting the award of attorney's fees and costs within fourteen days of the date of the rescript. The plaintiff shall have fourteen days thereafter to file an opposition.

Judgment affirmed.
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