Van Liew v. Eliopoulos, 16-P-567.

• Decision Date: 25 August 2017
• Docket Number: No. 16-P-567.,16-P-567.
• Citation: Van Liew v. Eliopoulos, 84 N.E.3d 898, 92 Mass.App.Ct. 114 (Mass. App. 2017)
• Parties: Roland VAN LIEW v. Philip ELIOPOULOS; Hands on Technology Transfer, Inc., Third-party Defendant.
• Court: Appeals Court of Massachusetts

92 Mass.App.Ct. 114

84 N.E.3d 898

Roland VAN LIEW

v.Philip ELIOPOULOS; Hands on Technology Transfer, Inc., Third-party Defendant.

No. 16-P-567.

Appeals Court of Massachusetts, Middlesex..

Argued January 5, 2017

Decided August 25, 2017

Brian C. Newberry, Boston, for Roland Van Liew & another.

David H. Rich, Boston, for the defendant.

Present: Green, Meade, & Blake, JJ.

BLAKE, J.

In 2010, a bitter feud erupted between Chelmsford residents Roland Van Liew and Philip Eliopoulos.Van Liew commenced the dispute by accusing Eliopoulos, a local selectman, of shady political dealings in his work as a real estate attorney.After Eliopoulos responded publicly to the allegations, Van Liew filed in Superior Court this defamation action against him.Eliopoulos counterclaimed, alleging defamation on the part of Van Liew, and impleaded Van Liew's company, Hands on Technology Transfer, Inc.(collectively, Van Liew).A jury subsequently found Van Liew liable for making twenty-nine defamatory statements, and awarded $2.9 million in damages.They found no wrongdoing on the part of Eliopoulos.The judge denied Van Liew's posttrial motions on the counterclaim verdict,¹ and he now appeals,² challenging the proof of defamation on the twenty-nine statements.He also claims that the judge committed evidentiary errors and that the excessive damages awarded require remittitur.We affirm.

Background.1.Real estate development in Chelmsford.In the summer of 2008, Chelmsford real estate broker and developer Michael Eliopoulos, Philip's³father, approached Eastern Bank about a historic home situated on a parcel of land it owned in Chelmsford center.Michael then negotiated the sale of an undeveloped portion of the property with Thomas Dunn, an employee of Eastern Bank.The purchase price was $480,000.Philip and his law firm reviewed draft agreements and served as real estate counsel.The sale closed on June 17, 2009, after which the 2.41-acre property became known as 9 North Street (the property).⁴During the real estate negotiations, until April of 2009, when his term expired, Philip was a member of the board of selectmen (board) of Chelmsford.He attended his final meeting on March 23, 2009.

In 2007, prior to Michael's offer to purchase the property, the Chelmsford fire department and department of public works facility study committee (the committee) was considering options for a new fire station headquarters.One option was rebuilding and expanding the Chelmsford center fire station, which was located on Chelmsford-owned land adjacent to the property.On August 7, 2007, the committee voted to narrow their primary and alternative site selections to two choices, neither of which was the center fire station or the property.Accordingly, Philip and the other members of the board understood that, as of September of 2007, the committee no longer was interested in the possible purchase of the property.Ultimately, the committee identified a location on Wilson Street for a new fire department headquarters.⁵

Beginning in April, 2009, after the expiration of his board term, Philip assisted Michael in his development of the property.The plan called for the rehabilitation of the historic house, and the construction of a new four-unit, family-owned office building.During the nine-month permitting process, Philip represented Michael's newly formed corporation, Epsilon Group, LLC(Epsilon).After a series of public hearings and changes to the plan, a number of local boards and committees approved the project, including the historic district commission, the conservation commission, and the planning board of Chelmsford.On August 23, 2010, the board determined that the project did not violate a historic preservation restriction (restriction) that encumbered the property.Scrutiny of the project was careful and deliberate due to the prominence of the Eliopoulos family in Chelmsford, as well as the vocal opposition to the project.

2.Feud begins.Van Liew, a successful local business owner, was one of the vocal opponents of the project.Commencing in early 2010, Van Liew, through several organizations controlled by him,⁶ widely published statements criticizing Philip for engaging in self-dealing and conflicts of interest at the expense of Chelmsford.He flooded Chelmsford residents with his messaging, accusing Philip and other Chelmsford officials of violating State and local ethics laws and of violating the restriction.The publications conjured up unsavory images of shady "back room" dealing at Chelmsford town hall, influence peddling, and fixed governmental proceedings.Van Liew's statements were published and repeated across a variety of media outlets: mass electronic mail messages (e-mails), letters, a digital video disc (DVD) sent to thousands of Chelmsford residents, Web site postings, a glossy newsletter entitled "Why Perjury Matters," lawn signs, bumper stickers, letters to newspapers, automated telephone calls, and video recordings of conferences and meetings.Van Liew spent between $1 and $2 million to spread his messaging.In early August, 2010, Philip attempted to defend himself in an open letter sent to every Chelmsford resident, at his own expense.⁷

3.No wrongdoing found by State agencies.In late 2009, Philip voluntarily subjected himself to an investigation by the State Ethics Commission(commission).Notwithstanding the multiple complaints lodged against him by Van Liew and his associates, the commission did not pursue enforcement proceedings against Philip, and closed the case on December 1, 2011.A similar investigation of the Chelmsford town manager, Paul Cohen, reached the same result.Likewise, the Board of Bar Overseers(BBO) took no action in response to Van Liew's complaints to that agency.The office of the Attorney General also declined to investigate Philip.No finding ever was made that the permitting process or the project was illegal or violated the restriction.

4.Present action.On January 3, 2011, Van Liew filed the present action, with Philip's counterclaim following shortly thereafter.Over the course of seventeen days in February and March, 2015, the case was tried to a jury.At the close of the case, the jury were given a special verdict form, which properly defined the requirements of defamation involving a public official and, as to the counterclaim, asked whether Philip had proved all of the required elements of his claims on each of thirty-nine statements.⁸The jury awarded $2.9 million in damages to Philip on twenty-nine of those statements.Van Liew moved for judgment notwithstanding the verdict and a new trial on the counterclaim verdict and a remittitur on the damages award,⁹ claiming that the judge had hampered his ability to present his case and improperly admitted prejudicial evidence, the proof of defamation was legally insufficient, and the damages awarded were excessive.The judge denied all of the posttrial motions, and Van Liew now raises the same claims on appeal.Further facts, including the defamatory statements at issue, will be set forth infra.

Discussion.1.Evidentiary claims.Due to concerns over the length of the trial, the judge imposed a preliminary time limit on Van Liew's case-in-chief, which the judge extended several times.¹⁰Van Liew nevertheless challenges the time limits placed on his case-in-chief.There was no abuse of discretion, considering Van Liew's severe underestimation of the time required to examine his witnesses, and juror concern over the length of the trial.¹¹SeeClark v. Clark, 47 Mass. App. Ct. 737, 746, 716 N.E.2d 144(1999)("A judge, as the guiding spirit and controlling mind of the trial, should be able to set reasonable limits on the length of a trial.This includes the right to set reasonable limits on the length of the direct and cross-examination of witnesses").

Van Liew also maintains that the following evidence should have been excluded as unduly prejudicial: (1) evidence related to his arrest and prosecution for attempting to poison his neighbor's dog; (2) evidence related to commission enforcement proceedings against one of his attorneys, Richard McClure; and (3) references to his anti-Vatican and population control opinions.

As to the dog incident, the evidence provided a cause of Van Liew's claimed emotional distress other than Philip's statements.¹²Van Liew also opened the door to impeachment by testifying that he was perceived as a "good neighbor."SeeMass.G. Evid. § 608(2017).The evidence about McClure likewise was not substantially more prejudicial than probative.SeeMass.G. Evid. § 403(2017).Even after the commission closed the case on Philip, Van Liew continued to publish statements about Philip's ethical violations based in part on McClure's legal advice.

The commission investigation of McClure was probative of Van Liew's recklessness in continuing to rely on McClure's opinion, even after learning of the commission charges against him.¹³SeeMurphy v. Boston Herald, Inc., 449 Mass. 42, 49, 865 N.E.2d 746(2007), citingSt. Amant v. Thompson, 390 U.S. 727, 730-732, 88 S.Ct. 1323, 20 L.Ed.2d 262(1968)(discussing reckless reliance on third-party opinion in defamation case).In each instance, the judge also gave limiting instructions on the proper use of the evidence to the jury, who were presumed to have followed these instructions.SeeGath v. M/A-Com, Inc., 440 Mass. 482, 493, 802 N.E.2d 521(2003).

Finally, Van Liew did not preserve his objection to the introduction of evidence about his opinions on the Vatican and population control.¹⁴Van Liew's motion in limine to exclude all such evidence initially was allowed.The bases for the motion were relevancy and that any probative value was outweighed by the danger of unfair prejudice.Thereafter, Philip sought to introduce the document contending that Van Liew opened the door to the admission of the evidence.Van Liew's counsel objected on the basis of "foundation, relevance, hearsay,"...