Chemawa Country Golf, Inc. v. Wnuk

• Decision Date: 29 May 1980
• Citation: 9 Mass.App.Ct. 506,402 N.E.2d 1069
• Parties: CHEMAWA COUNTRY GOLF, INC. v. Lorraine WNUK.
• Court: Appeals Court of Massachusetts

Page 1069

402 N.E.2d 1069

9 Mass.App.Ct. 506

CHEMAWA COUNTRY GOLF, INC. v. Lorraine WNUK.

Appeals Court of Massachusetts, Bristol.

Argued Dec. 13, 1979.

Decided April 4, 1980.

Further Appellate Review Denied May 29, 1980.

Sharryn E. Ross, Jamaica Plain, for defendant.

Henry G. Barrett, North Attleboro, for plaintiff.

Before ARMSTRONG, ROSE and KASS, JJ.

KASS, Justice.

Neighborliness and sweet reason have not characterized a decade of uneasy coexistence between the Wnuks, Lorraine Wnuk and Stephen Wnuk, and Chemawa Country Golf, Inc. (Chemawa). Their acrimony has spawned a battery of administrative and judicial proceedings (one came to this court), ¹ including the action, now before us, by Chemawa for abuse of process and tortious interference with contractual relations. That suit was tried to a jury, which returned verdicts for the defendants Lorraine and Stephen on the complaints of abuse of process, ² and a verdict of $15,000 for Chemawa and against Lorraine for tortious interference with business relations. After the verdict, Lorraine made timely motions for judgment notwithstanding the verdict and for a new trial. From the denial of these motions, Lorraine has appealed.

From the evidence, the jury might have found the following facts:

Since 1948, the Wnuks have owned a twenty-five-acre residential property on Cushman Road in North Attleboro. A golf course began operating on a property of about fifty-five acres across the road in 1959. Chemawa bought the golf course on November 17, 1969, and discord began the following June with a complaint by Lorraine about a noisy pool party at Chemawa which had lasted until 2:00 A.M. Several like complaints followed that summer. In 1970-1972 Chemawa expanded its facilities, especially around its swimming pool, and undertook to cut a new driveway entrance to its parking lot near the Wnuks' home. Resort to public authority now began in earnest. The Wnuks complained to the board of selectmen about zoning violations by Chemawa and that its late night activity constituted a nuisance. They complained to the conservation commission of Attleboro concerning a drainage culvert which Chemawa had installed. Between 1969 and 1973 they appeared fourteen times before the town planning board and addressed twenty written communications to it concerning a variety of Chemawa's enterprises and activities. Lorraine complained to the police about Chemawa cutting down a thirty-inch ash tree and an eighteen-inch maple tree (the tree warden ruled they were not to be cut down) and to the town health department about an allegedly unlawful chimney fireplace and allegedly unlawful placement of rubbish. She also called down the majesty of the law on a club member who was having a family cookout on the ground that he or Chemawa had not obtained a proper permit for outdoor burning.

The town revoked Chemawa's license to have live music and dancing on its premises and shortened the hours during which it might serve alcoholic beverages, so that none could be served after 11:00 P.M.

The jury might also have found that apart from involving public officials, agencies and courts, Lorraine parked her car next to the pool and blew her horn for twenty minutes at a time, that she played loud music, and that she clanged garbage can tops together for the purpose of annoying Chemawa's members.

During the course of the trial, the parties and the judge heaped all proceedings before courts and town boards into the category of "process." Our law is otherwise; in the context of an action for abuse of process, " 'process' refers to the papers issued by a court to bring a party or property within its jurisdiction," e. g., a writ of attachment, the process used to initiate a civil action, and the process related to the bringing of criminal charges. Jones v. Brockton Pub. Mkts., Inc., 369 Mass. 387, 390, 340 N.E.2d 484 (1975), and cases cited. Compare Restatement (Second) of Torts § 674 (1977), which describes a tort of wrongful use of civil proceedings. Since the jury were given to understand that all recourse to the machinery of government, judicial or otherwise, was "process," we must assume that, in returning a verdict for the defendants, the jurors found that when the Wnuks protested to town agencies and initiated law suits, they did not do so with an ulterior purpose for which the particular proceeding was not intended. Quaranto v. Silverman, 345 Mass. 423, 426, 187 N.E.2d 859 (1963). Prosser, Law of Torts § 121 (1971). So, for example, the jury's verdict implies a finding that the Wnuks' suits founded on alleged violations of zoning regulations and acts constituting a nuisance were intended to abate those violations and acts, not to drive Chemawa out of business or its principal officers out of their minds. We are left with the inference that, in finding for Chemawa on the claim of wrongful interference with contractual relations, which also imports the element of improper motive, the jury considered the other vexations which Lorraine visited upon Chemawa: the complaints, banging of trash pail covers and so forth.

In its classic form, the tort of interference with contractual relations involves the undoing of a business arrangement bound by contract. See e. g., Lumley v. Gye, 118 Eng.Rep. 749 (1853) (contract to perform services as a singer); Carpenter, Interference with Contractual Relations, 41 Harv.L.Rev. 728 (1928). Nolan, Tort Law § 71 (1979). The elements of the tort, as set out more than a century ago in Walker v. Cronin, 107 Mass. 555 (1871), are: "(1) intentional and wilful acts (2) calculated to cause damage to the plaintiffs in their lawful business, (3) done with the unlawful purpose to cause such damage and loss, without right or justifiable cause on the part of the defendant, (which constitutes malice), and (4) actual damage and loss resulting." At 562. In Owen v. Williams, 322 Mass. 356, 360, 77 N.E.2d 318 (1948), the court cited with approval the modern formulation of these principles in Restatement (Second) of Torts § 766 (1977). See Ryan, Elliott & Co. v. Leggat, McCall & Werner, Inc., --- Mass.App. ---, --- ^a, 396 N.E.2d 1009 (1979).

In the instant case the plaintiff charges no disruption of a particular contract; rather it complains of interference with prospective contractual relations. This is a recognized extension of the more typical tort. Godin v. Niebuhr, 236 Mass. 350, 351, 128 N.E. 406 (1920). Restatement (Second) of Torts § 766B (1979), ³ particularly comment (c ), which includes in the field of potential harm "any other relations leading to potentially profitable contracts." It is not necessary that the prospective relation be expected to be reduced to a formal binding contract. Id. See Botkin v. Miller, 190 Mass. 411, 413, 77 N.E. 49 (1906) (call by a group of orthodox Jews for a boycott of a barbershop kept open on Saturday by a co-religionist); Owen v. Williams, 322 Mass. at 356-357, 77 N.E.2d 318 (interference with hiring of the plaintiff by a hospital as a special duty nurse).

As we have previously noted, it is an essential element of the tort that the defendant act without justifiable cause. Grammenos v. Zolotas, 356 Mass. 594, 597, 254 N.E.2d 789 (1970). Pino v. Trans-Atlantic Marine, Inc., 358 Mass. 498, 504, 265 N.E.2d 583 (1970). Ryan, Elliott & Co. v. Leggat, McCall & Werner, Inc., --- Mass.App. at --- ^b, 396 N.E.2d 1009. The jury could have found that the purpose of...