Sarvis v. Boston Safe Deposit and Trust Co.

• Decision Date: 09 June 1999
• Docket Number: No. 97-P-1412,97-P-1412
• Citation: 711 N.E.2d 911,47 Mass.App.Ct. 86
• Parties: Robert A. SARVIS & another 1 v. BOSTON SAFE DEPOSIT AND TRUST COMPANY & others. 2
• Court: Appeals Court of Massachusetts

Page 911

711 N.E.2d 911

47 Mass.App.Ct. 86

Robert A. SARVIS & another ¹ v. BOSTON SAFE DEPOSIT AND TRUST COMPANY & others. ²

No. 97-P-1412.

Appeals Court of Massachusetts Suffolk.

Argued Dec. 11, 1998.

Decided June 9, 1999.

Richard I. Rubin, Barre, VT, for the plaintiffs.

Michael C. Gilleran, Boston, for the defendants.

Present: KASS, DREBEN, & SPINA, JJ.

SPINA, J.

A Suffolk County jury awarded each plaintiff $45,000 on counts of false imprisonment and violations of G.L. c. 12, §§ 11H-11I, the Massachusetts Civil Rights Act (MCRA). ³ The trial judge awarded plaintiffs $105,500 in counsel fees and $4,564.05 in costs under the MCRA. The defendants appeal the denial of their motion for judgment notwithstanding the verdict (judgment n.o.v.), Mass.R.Civ.P. 50(b), 365 Mass. 814 (1974), renewing their arguments as to (1) the sufficiency of the evidence; (2) the applicability of respondeat superior to claims under the MCRA; and (3) the defense of res judicata. The defendants also claim error with respect to portions of the judge's charge and to the denial of their motion for a new trial as to damages. We affirm.

We summarize the evidence with reasonable inferences drawn in favor of the plaintiffs, reserving certain details for discussion of the issues. In September, 1989, the plaintiffs' father, Robert H. Sarvis (Mr. Sarvis), executed a $650,000 promissory note in favor of the bank, secured by a mortgage on residential property located at 22 Brant Point Road, Nantucket (property). In October, 1990, Mr. Sarvis defaulted on the note and the bank demanded payment. In June, 1991, the bank published and mailed notice of foreclosure sale, as required by G.L. c. 244, § 14. On June 28, 1991, an affiliate of the bank purchased the property at the foreclosure sale.

After the sale, the plaintiffs, who were twenty-one (Robert) and seventeen (Catherine) years of age, respectively, continued to live at the property with their father and his fiancee, to whom he is now married. They also kept three dogs at the property. The family maintained both telephone and electric service and received mail and telephone calls there. Throughout the summer, the plaintiffs held full-time jobs in the area.

On July 2, 1991, the defendant bank, through its vice-president, defendant Robert DeChristofaro, listed the property with defendant Samuel Daume, an agent with the Lee Real Estate Agency in Nantucket and former employee of the bank. An internal bank memo dated July 8, 1991, indicated that bank counsel had been instructed to begin eviction proceedings against Mr. Sarvis, who "said he had no intention of leaving." On July 10, the bank received a $660,000 cash offer for the property. Laurie Locklin, a bank employee assigned to the disposition of the property, noted in an internal memo that the bank stood to make a $100,000 profit and recommended a "quick close" once the property "[was] vacant."

DeChristofaro wrote to Mr. Sarvis on July 11, 1991, informing him that the bank had changed the locks on the residence and that Sarvis should arrange to remove his remaining personal belongings from the residence. On July 12, bank counsel, acting on behalf of the bank, wrote to the chief of police in Nantucket, advising him that the bank had become owner of the 22 Brant Point Road property through a foreclosure sale, that "certain unauthorized individuals had recently attempted to gain access to [the property]," and that the bank might seek his "assistance if such unauthorized activity persists." Attorney Michael S. Field, representing Mr. Sarvis, acknowledged DeChristofaro's July 11 letter with a phone call, stating that his client had a right to possession of the property and suggesting that they agree upon a date by which Mr. Sarvis would vacate the property. He confirmed their conversation by letter dated July 22. DeChristofaro responded to Field's letter with his own, dated July 30, explaining the bank's "position" that it was entitled to possession because Mr. Sarvis had "abandoned" the property and that "any attempt at entry onto the premises will be considered trespassing."

During late July, 1991, Daume visited the property frequently. Whenever he saw the plaintiffs, he told them that they had to leave, or be arrested. If the plaintiffs were not at home, Daume would leave a note to that same effect. Jeffrey Lee, owner of the Lee Real Estate Agency, spoke with police regarding a loud party the plaintiffs were having at the property on the evening of August 1. The Nantucket police log indicates that shortly after midnight on August 2, Lee told police that "the bank would testify if Sarvis were to be arrested." Police cleared the partygoers from the house shortly after Lee's call. Later that day, Daume called DeChristofaro and informed him that the plaintiff Catherine Sarvis had had a "beer" party at the property the previous night. DeChristofaro directed bank counsel to contact Attorney Field "and put Sarvis on notice [that] any further entry will be subject to trespass and arrest." During the evening of August 4, the Nantucket police received several calls regarding trespassers at the property. At approximately 2 A.M. on August 5, police entered the property and arrested the plaintiffs for trespassing under G.L. c. 266, § 120. The officers designated Jeffrey Lee and the bank as the complainants in the application for criminal complaints against the plaintiffs. The charges were dismissed in December, 1991, for insufficient evidence.

On August 5, 1991, the bank received a $730,000 offer to purchase the property. DeChristofaro, on behalf of the bank, accepted that offer. On August 7, Daume wrote to DeChristofaro, as requested, informing him that he had inspected the property and discovered, despite having changed the locks, that it remained occupied and contained furniture and men's and women's clothing. Daume also wrote that "[t]he only articles removed from the house were food from [the] refrigerator and [the] freezer and trash. The cleaning woman [sent by the bank] removed [only the] garbage, paper, and junk.... Nothing else was removed!" Internal bank memos contained entries that as of September, Mr. Sarvis still had not vacated the property. The bank filed a summary process action against Mr. Sarvis in October. He moved out around mid-October. The bank obtained a judgment for possession on November 5.

1. Denial of the motion for judgment n.o.v. a. The MCRA claim. (i) Sufficiency of the evidence. The defendants argue that they are entitled to judgment n.o.v. because the evidence was insufficient to establish a violation of G.L. c. 12, §§ 11H-11I MCRA). ⁴ In particular, they contend that there was no evidence that they threatened, intimidated, or coerced the plaintiffs or that their actions involved actual or threatened confrontations with the plaintiffs.

Plaintiffs base their MCRA claim on the right not to be evicted except by summary process. See G.L. c. 239, § 1; G.L. c. 184, § 18. ⁵ , ⁶ See also Attorney Gen. v. Dime Sav. Bank of New York, FSB, 413 Mass. 284, 596 N.E.2d 1013 (1992). The defendants have not argued that G.L. c. 184, § 18, does not create a right, the violation of which, by threats, intimidation, or coercion, rises to the level of a civil rights ⁷ violation under the MCRA. That issue, therefore, is deemed waived. Warner-Lambert Co. v. Execuquest Corp., 427 Mass. 46, 50 n. 7, 691 N.E.2d 545 (1998). Our use of the word "right" does not indicate acceptance of the vitality of the claim, and we express no view about that issue.

When reviewing the denial of a motion for judgment n.o.v., we must ask "whether 'anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff.' " Poirier v. Plymouth, 374 Mass. 206, 212, 372 N.E.2d 212 (1978), quoting from Raunela v. Hertz Corp., 361 Mass. 341, 343, 280 N.E.2d 179 (1972). Dobos v. Driscoll, 404 Mass. 634, 656, 537 N.E.2d 558, cert. denied sub nom. Kehoe v. Dobos, 493 U.S. 850, 110 S.Ct. 149, 107 L.Ed.2d 107 (1989). A jury's verdict must be upheld if a plaintiff has presented evidence from which it could rationally be supported. Young v. Atlantic Richfield Co., 400 Mass. 837, 841, 512 N.E.2d 272 (1987), cert. denied, 484 U.S. 1066, 108 S.Ct. 1029, 98 L.Ed.2d 993 (1988).

"To establish a claim under the [MCRA], the plaintiffs must prove that (1) their exercise or enjoyment of rights secured by the Constitution or laws of either the United States or of the Commonwealth, (2) have been interfered with, or attempted to be interfered with, and (3) that the interference or attempted interference was by 'threats, intimidation or coercion' ". Swanset Dev. Corp. v. Taunton, 423 Mass. 390, 395, 668 N.E.2d 333 (1996) (citation omitted). Defendants have focused only on the third element, which requires proof that the defendants interfered with the plaintiffs' civil rights by "threats, intimidation, or coercion." See Redgrave v. Boston Symphony Orchestra, 399 Mass. 93, 98, 502 N.E.2d 1375 (1987). Use of the disjunctive "or" indicates that a plaintiff need establish only one of the three alternatives. See Nuclear Metals, Inc. v. Low-Level Radioactive Waste Mgmt. Bd., 421 Mass. 196, 212, 656 N.E.2d 563 (1995).

Under the MCRA, a " '[t]hreat' ... involves the intentional exertion of pressure to make another fearful or apprehensive of injury or harm. 'Intimidation' involves putting in fear for the purpose of compelling or deterring conduct.... [C]oercion ... [is] 'the application to another of such force, either physical or moral, as to constrain him to do against his will something he would not otherwise have done.' " Planned Parenthood League of Mass., Inc. v. Blake, 417 Mass. 467, 474, 631 N.E.2d 985 (citations omitted), cert. denied, 513 U.S. 868, 115 S.Ct. 188, 130 L.Ed.2d 122 (1994). There must also be evidence of "actual or potential physical confrontations...