Correllas v. Viveiros

• Decision Date: 05 June 1991
• Citation: 410 Mass. 314,572 N.E.2d 7
• Parties: Patricia M. CORRELLAS, et al. 1 v. Michelle B. VIVEIROS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 7

572 N.E.2d 7

410 Mass. 314

Patricia M. CORRELLAS, et al. ¹ v. Michelle B. VIVEIROS.

Supreme Judicial Court of Massachusetts Bristol.

Argued Dec. 6, 1990.

Decided June 5, 1991.

Thomas F. McGuire, Jr., Fall River, for plaintiffs.

Clement Brown, Fall River, for defendant.

Before LIACOS, C.J., and ABRAMS, NOLAN, O'CONNOR and GREANEY, JJ.

NOLAN, Justice.

This case arises from allegedly false statements made about Patricia M. Correllas (plaintiff) by Michelle Viveiros to police officers during the course of a criminal investigation. The plaintiff brought this action, alleging malicious prosecution, defamation, and intentional infliction of emotional distress. The judge granted summary judgment in favor of the defendant because (1) the defendant did not, as a matter of law, institute criminal proceedings against the plaintiff as required for malicious prosecution; (2) the statements were absolutely privileged, and thus could support neither a defamation action nor an intentional infliction of emotional distress claim, and (3) the plaintiff had failed to demonstrate that there was a genuine issue of material fact in connection with the elements of the tort of intentional infliction of emotional distress. We now affirm the granting of summary judgment.

In August, 1986, the plaintiff was a vault teller at the Fall River branch of the Durfee-Attleboro Bank. The defendant was her assistant. On or about October 15, 1986, officials of the bank discovered that $8,000 was missing from the Fall River branch vault. Both women were questioned by police officers with regard to the missing funds. After being informed by police of the results of a polygraph examination, Viveiros confessed to stealing $4,000. She further told police that Correllas had conceived the plan to steal the money, and that she was of the belief that Correllas had stolen the additional $4,000. Correllas was then charged with larceny. After a trial at which Viveiros testified against Correllas, Correllas was acquitted.

Correllas and her husband then brought this action for malicious prosecution, intentional infliction of emotional distress, defamation, and loss of consortium. Viveiros moved for summary judgment, supporting her motion with three affidavits, one from herself, one from the investigating police officer, and one from the assistant district attorney. These affidavits briefly described the conversations with the police and stated the reasons that the criminal charges had been brought against Correllas. Correllas presented no affidavits, but rather supplied the court with a certified transcript of the criminal trial. The transcript contained Correllas's sworn testimony that she had no knowledge of the theft and had never planned any such action. The judge granted summary judgment on all counts.

As a preliminary matter, we must determine what materials were properly before the judge on the motion for summary judgment. Rule 56(c) of the Massachusetts Rules of Civil Procedure, 365 Mass. 824 (1974), states summary judgment shall be entered "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Viveiros argues that, because transcripts of prior testimony are not among the materials explicitly mentioned in rule 56(c), the transcript offered by Correllas should not be considered in determining whether there exists a genuine dispute as to any material fact. ² We disagree.

The purpose of summary judgment is to decide cases where there are no issues of material fact without the needless expense and delay of a trial followed by a directed verdict. See Cassesso v. Commissioner of Correction, 390 Mass. 419, 422, 456 N.E.2d 1123 (1983); Kesler v. Pritchard, 362 Mass. 132, 134, 284 N.E.2d 602 (1972). To that end, "all doubt as to the existence of a genuine issue of material fact must be resolved against the party moving for summary judgment." Attorney Gen. v. Bailey, 386 Mass. 367, 371, 436 N.E.2d 139, cert. denied sub nom. Bailey v. Bellotti, 459 U.S. 970, 103 S.Ct. 301, 74 L.Ed.2d 282 (1982), quoting Gross v. Southern Ry., 414 F.2d 292, 297 (5th Cir.1969). Of course, when a motion for summary judgment is made and properly supported, the non-moving party may not simply rest on pleadings, "but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Mass.R.Civ.P. 56(e), 365 Mass. 824 (1974).

The certified transcript of the prior criminal trial may not qualify as an affidavit as we have previously defined that term. Galvin v. Town Clerk of Winchester, 369 Mass. 175, 177, 338 N.E.2d 834 (1975). However, we have never been overly technical in our reading of what a judge should consider on a motion for summary judgment. In Rutland v. Fife, 385 Mass. 1010, 433 N.E.2d 424 (1982), we considered a letter as part of the record on summary judgment. In Jackson v. Longcope, 394 Mass. 577, 580 n. 2, 476 N.E.2d 617 (1985), we noted that "[i]t is proper on a motion for summary judgment to recognize those facts of which a judge may take judicial notice, including criminal cases involving a party." In Makino U.S.A., Inc. v. Metlife Capital Credit Corp., 25 Mass.App.Ct. 302, 318 n. 6, 518 N.E.2d 519 (1980), the Appeals Court stated that "[t]estimony received in court may be considered on summary judgment motions...."

None of these sources--letters, judicial notice, and in-court testimony--is specifically referred to in rule 56, yet we held their consideration on the question of summary judgment to be proper. ³ Similarly, a certified transcript of a prior criminal trial containing sworn statements of parties bearing on the matter at hand ought to be considered by the judge in determining whether there are any triable issues in the case. ⁴ We shall, therefore, review the various counts taking into consideration the transcript and the sworn statements contained therein.

1. Malicious Prosecution.

Correllas first claims that Viveiros's actions constituted malicious prosecution. To prove malicious prosecution, Correllas must show that Viveiros instituted criminal proceedings against her with malice and without probable cause and that those proceedings terminated in favor of Correllas. Beecy v. Pucciarelli, 387 Mass. 589, 593-594, 441 N.E.2d 1035 (1982). Viveiros argues that she did not "institute the proceedings" against Correllas merely by telling police officers of the alleged plan to steal the money. In support of this, she offers her affidavit and the affidavits of the police officer and the district attorney. These latter two affidavits state they brought charges against Correllas based on Viveiros's statements "and other information" (emphasis in the original).

It is well established that a person need not swear out a criminal complaint in order to be held answerable for malicious prosecution. "The fact that ... the chief of police signed and swore to the written complaint does not save the defendant if he intentionally induced the police to do so, acting in good faith on the defendant's information." Tangney v. Sullivan, 163 Mass. 166, 167, 39 N.E. 799 (1895). See Seelig v. Harvard Coop. Soc'y, 355 Mass. 532, 536, 246 N.E.2d 642 (1969); Witham v. Gregory & Read Co., 243 Mass. 595, 597, 137 N.E. 752 (1923). However, the defendant must have, in some sense, initiated the prosecution. The mere transmission of information to a police officer, who using his or her independent judgment, then pursues the matter and institutes criminal proceedings, has never been held sufficient to support an action for malicious prosecution. See Burnham v. Collateral Loan Co., 179 Mass. 268, 274, 60 N.E. 617 (1901); Ziemba v. Fo'cs'le, Inc., 19 Mass.App.Ct. 484, 485, 486, 475 N.E.2d 1223 (1985).

In this case, Viveiros provided information to police while she was a suspect in a theft already under investigation. The prosecutor, in his affidavit, stated that, "[a]t no time did Ms. Viveiros come forward of her own free will and offer information concerning the missing money." The plaintiff offered no evidence to the effect that Viveiros encouraged or demanded that police institute criminal proceedings against Correllas. The entry of summary judgment on the malicious prosecution count, therefore, was proper because the undisputed evidence showed that Viveiros did not institute the criminal proceedings against Correllas.

2. Defamation.

Correllas next claims that Viveiros defamed her by accusing her of complicity in the theft. Defamation is the publication of material by one without a privilege to do so which ridicules or treats the plaintiff with contempt. See Merrill v. Post Publishing Co., 197 Mass. 185, 191-192, 83 N.E. 419 (1908). Although criminal accusations are generally regarded as defamatory, see Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 853, 330 N.E.2d 161 (1975), Viveiros argues that any such accusations were made in circumstances rendering them absolutely privileged. Correllas argues that at least some of the defamatory statements were made in circumstances rendering them only conditionally privileged, and that Viveiros lost that privilege through abuse.

Statements made in the course of a judicial proceeding which pertain to that proceeding are, of course, absolutely privileged and cannot support a claim of defamation, even if uttered with malice or in bad faith. Seelig v. Harvard Coop. Soc'y, 355 Mass. 532, 538, 246 N.E.2d 642 (1969). Therefore, no action will lie in relation to the testimony of Viveiros at the criminal trial of Correllas.

Viveiros, however, admitted in her affidavit to making arguably defamatory statements to the police officer and the prosecutor during the course of the investigation of the crime, prior to the institution of formal judicial...