Powell v. Stevens, No. 2000-0089 (MA 5/10/2004), 2000-0089
| Decision Date | 10 May 2004 |
| Docket Number | No. 2000-0089,2000-0089 |
| Parties | Joanne Powell, Administratrix of the Estate of Mary Ann Cullinane <U>vs.</U> Esther Stevens, Trustee of the Twenty Marlborough Street Trust and David P. Stevens. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Joanne Powell, Administratrix of the Estate of Mary Ann Cullinane (the plaintiff), has brought a Motion for Summary Judgment upon Esther K. Stevens' and David P. Stevens' (the defendants') counterclaim for slander of title.
The issue to be decided in this case is whether the filing of a lis pendens memorandum in connection with a claim affecting the title to real estate lies within the absolute privilege accorded judicial proceedings in Massachusetts.
On March 2, 2000, plaintiff commenced this action against defendants, Esther Stevens, Trustee of the Twenty Marlborough Street Trust, and David Stevens. The Amended Complaint (dated October 12, 2001) alleges six causes of action: (1) breach of promissory note; (2) breach of guaranty; (3) breach of contract; (4) rescission; (5) declaratory judgment; and (6) a claim to quiet title. On the same date, the administrator obtained a lis pendens which was recorded with the Suffolk County Registry of Deeds at Book 24728, Page 16.
The Amended Complaint alleges the following facts. On December 19, 1986, Mary Cullinane, the deceased, conveyed her property at 20 Marlborough Street, Boston (the "Property") to Esther Stevens, for consideration of $430,000. Esther Stevens executed a promissory note (the "Note") in the amount of $350,000, which was guaranteed by defendant David Stevens. As security for the Note, Mary Cullinane took back a mortgage on the Property in the amount of $350,000. By instrument dated August 2, 1993, Mary Cullinane discharged the mortgage. The discharge was not recorded until April 26, 1996, the day of Ms. Cullinane's death in Ireland. This event raised suspicions and the administrator of Mary Cullinane's estate commenced this suit based on the belief that the discharge was fraudulently obtained. On November 27, 2001, defendants filed their answer and counterclaim. The counterclaim alleges slander of title by reason of the recordation of the lis pendens.
Prior to trial, the parties agreed to sever the direct claims from the slander of title counterclaim. On May 5-7, 2003, the direct claims were tried before a jury. At the conclusion of plaintiff's evidence, defendants moved for and received a directed verdict.
Defendant Esther Stevens then filed a motion to assign the counterclaim for trial, which plaintiff opposed. After a hearing on the motion, the court issued the following Order for the disposition of all remaining claims: (1) plaintiff would serve a motion for summary judgment on defendants upon the slander of title counterclaim; (2) defendants would respond; and (3) the court would receive oral argument on the motion.
Powell filed her motion for summary judgment; the court heard oral argument from all parties on the motion for summary judgment upon to the slander of title counterclaim. The matter was then taken under advisement.
A motion for summary judgment is in order, and shall be granted where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there are no genuine issues as to any material fact in dispute and where the summary judgment record entitles the moving party to judgment as a matter of law. Nashua Corp. v. First State Ins. Co., 420 Mass. 196, 202 (1995); Wheatley v. Am. Tel. & Tel. Co., 418 Mass. 394, 397 (1994); Cassesso v. Comm'r of Corr., 390 Mass. 419, 422 (1983); Cmty. Nat'l Bank v. Dawes, 369 Mass. 550, 553 (1976); Mass. R. Civ. P. 56(c). In deciding a motion for summary judgment, the court views the facts "in the light most favorable to . . . [the non-moving party], taking all the facts set forth in its supporting affidavits as true." G.S. Enter., Inc. v. Falmouth Marine, Inc., 410 Mass. 262, 263 (1991). The moving party bears the burden of affirmatively demonstrating the absence of any genuine issue of material fact on every relevant triable issue. Pederson v. Time, Inc., 404 Mass. 14, 17 (1989). To satisfy this burden, the moving party may either submit affirmative evidence that negates an essential element of the opposing party's case; or demonstrate that the opposing party has no reasonable expectation of proving an essential element of his case at trial. Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991); Kourouvacilis v. Gen. Motors Corp., 410 Mass. 706, 716 (1991).
Once the moving party demonstrates the absence of any triable issue, the non-moving party may not simply rely on its pleadings but "by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Correllas v. Viveiros, 410 Mass. 314, 317 (1991), quoting Mass. R. Civ. P. 56(e). "A complete failure of proof concerning an essential element of the non-moving party's case renders all other facts immaterial" and mandates summary judgment in favor of the moving party. Kourouvacilis v. Gen. Motors Corp., 410 Mass. at 711 (1991), citing Celotex v. Catrett Corp., 477 U.S. 317, 323 (1986). "Where a moving party properly asserts that there is no genuine issue of material fact, `the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the [non-moving party] on the evidence presented.'" Flesner v. Technical Communications, Corp., 410 Mass. at 809, quotingAnderson v. Liberty Lobby, Inc. 477 U.S. 242, 252 (1986).
The use of summary judgment procedures is favored "in cases where defamation is alleged." Mulgrew v. Taunton, 410 Mass. 631, 632 (1991), citing King v. Globe Newspaper Co., 400 Mass. 705, 708 (1987), cert. denied. "Defendants, however, `must still meet the usual burden under Rule 56 of demonstrating by evidence considered with an indulgence in the plaintiff's favor,' the absence of disputed issues of material fact and their entitlement to judgment as a matter of law.'" Mulgrew v. Taunton, 410 Mass. at 633, quoting Godbout v. Cousens, 396 Mass. 254, 258 (1985).
Slander of title, also referred to as the tort of "injurious falsehood," is catalogued in the Restatement (Second) of Torts , §§ 623A and 624. The term slander of title is defined as "a false and malicious statement, oral or written, made in disparagement of a person's title to real or personal property, causing him injury." 50 Am Jur. 2d Libel & Slander § 548 (1995) (citations omitted). The action of slander of title is the wilful recordation or publication of untrue material that disparages the title of another property. Id. Generally, an action under slander of title may only be maintained by one who possesses an estate or interest in the affected property. See generally Slander of Title: Sufficiency of Plaintiff's Interest in Real Property to Maintain Action, 86 A.L.R. 4th 738 (1991). "The Tort of slander of title is almost identical to the tort of product disparagement, the only difference being that the former tort involves aspersing the quality of one's title to property and the latter tort involves aspersing the quality of one's property." Wendy's of S. Jersey, Inc. v. Blanchard Mgmt. Corp. of N.J., 170 N.J. Super. 491, 493 (Ch. Div. 1979), citing Sys. Operations, Inc. v. Scientific Games Dev. Corp., 555 F.2d 1131, 1140-1141 (3d Cir. 1977).
The requirements liability for the publication of injurious falsehood are as follows:
One who publishes a false statement harmful to the interests of another is subject to liability for pecuniary loss resulting to the other if (a) he intends for publication of the statement to result in harm to the interests of the other having pecuniary value, or either recognizes or should recognize that it is likely to do so, and (b) he knows that the statement is false or acts in reckless disregard of its truth or falsity.
Dulgarian v. Stone, 420 Mass. 843, 852 (1995), quoting Restatement (Second) of Torts, §623A.
In other words, in order to be liable for publishing an injurious falsehood (or slander of title), the party asserting the claim must present affidavits or other documents showing, or tending to show, that the statements made were false and that the publisher acted in reckless disregard of truth or falsity when publishing them. Id Section 624 of the Restatement of Torts (Second) states, in pertinent part, the following:
The rules on liability for the publication of an injurious falsehood stated in §623A apply to the publication of a false statement disparaging another's property rights in land, chattels or intangible things, that the publisher should recognize as likely to result in pecuniary harm to the other through the conduct of third persons in respect to the other's interests in the property.
Comment a: . . . Slander of title, however, differs from personal defamation in at least three important respects. One is that proof of special harm is required in all cases. (See §633). Another is that there must be proof of a greater amount of fault than negligence on the part of the defendant regarding the falsity of the statement. (See §623A, especially Comment d). The third is that because of the economic interest involved the disparagement of property may in a proper case be enjoined, whereas defamation normally cannot.
As noted above, one of the required elements necessary for liability is that the statement must result in pecuniary loss to another. Dulgarian v. Stone, 420 Mass. at 852, quotingRestatement (Second) of Torts, §623A. This pecuniary loss is better characterized as the special damages rule. W. Prosser & W....
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