Opinion
No. 94-02174
February, 1998
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This case arrives before the court on Defendant's Motion for Summary Judgment. Plaintiff, Paula M. Houle (Houle), instituted the action alleging defamation, malicious prosecution, and violation of G.L.c. 93A. Houle's allegations arise out of certain comments made by Defendant, Liliane D. Khoury (Mrs. Khoury), and from Khoury's initiation of a state criminal investigation against Houle. For the reasons that follow, Defendants Motion is ALLOWED as to Houle's malicious prosecution and c. 93A claims, but DENIED as to the defamation count.
BACKGROUND
From December, 1990 through July 24, 1992, the Khoury Travel Agency employed Houle. Defendant's husband (Mr. Khoury) owned the agency. In early 1991, Houle entered a window display contest sponsored by American Airlines. After winning the contest, she received two vouchers, each good for two round trip airline tickets to Tokyo. After a minor dispute with Mr. Khoury concerning whether to sell the tickets to a customer, Houle gave one voucher to Jean Roy, an employee of the agency. The other voucher expired early in July, 1992 and Houle informed Mr. Khoury of its expiration. Later in July, 1992, however, an American Airlines representative arrived at Khoury Travel and extended the voucher. The representative also allowed Houle to change the destination from Tokyo to Aruba. Houle never informed Mr. Khoury that the voucher had been extended or that she intended to use it for a vacation to Aruba.
On July 10, 1992 Mrs. Khoury discovered that Houle intended to use the voucher for her trip. Mrs. Khoury then told her husband of Houle's impending vacation and gave him the voucher. Mr. Khoury responded by speaking to Detective Peter Lemon of the Bellingham Police. Mr. Khoury explained that he had a problem with one of his employees stealing from him. Detective Lemon advised Mr. Khoury to confront his employee with a witness present and suggested that he arrange an appointment at the police station. At the time, Detective Lemon did not make note of the details of the accusation, did not create a file and did not file a report. On July 24, 1992, Mr. Khoury confronted Houle with a witness present. Following the confrontation, Houle left the agency's employ and refused to sign a non-competition agreement.
Mrs. Khoury discovered Houle's plans for the voucher while delivering the mail from Khoury Travel to the post office. Accidentally spilling coffee on some of the mail, Mrs. Khoury opened the damaged envelopes to replace them with new envelopes. Upon opening one of the damaged envelopes, Mrs. Khoury discovered the voucher and Houle's proposed vacation.
On July 27, 1992, Mrs. Khoury traveled to Garelick Farms, an agency client, to deliver a present. While at Garelick Farms, Mrs. Khoury spoke to one of its employees, Joan Doyle (Doyle), and informed her that Houle was dismissed from the agency because she was under "federal investigation". Doyle testified at deposition that the remark did not influence Garelick Farms to choose to retain Khoury Travel.
At about the time of these events, Houle alleges, she was looking for real estate to open her own travel agency.
On July 29, 1992, Mrs. Khoury spoke with Detective Lemon. Following this conversation, Detective Lemon filed an application for a criminal complaint against Houle. Houle requested a show cause hearing, after which the judge determined that probable cause existed to support a criminal complaint. The complaint then issued, charging Houle with forgery, uttering a forged instrument, and larceny over $250. Houle then removed the case from the Milford District Court to the Worcester District Court jury session where the case was ultimately dismissed.
DISCUSSION
Summary judgment shall be granted where there are no genuine issues of material fact on any relevant issue raised by the pleadings and the moving party is entitled to judgment as a matter of law. Mass.R.Civ.P. 56 (c); McNeil v. Metropolitan Property Liability Ins. Co., 420 Mass. 587, 598 (1995). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue and that the summary judgment record entitles the moving party to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1989). If the moving party demonstrates the absence of a triable issue, the party opposing the motion must, in order to defeat the motion, present specific references to the record establishing the existence of a genuine issue of material fact. Id. at 17. The opposing party cannot, however, rest only upon his or her pleadings or upon mere assertions of disputed facts to defeat the motion for summary judgment. LaLonde v. Eissner, 405 Mass. 207, 209 (1989).
Mrs. Khoury has moved for summary judgment on all of Houle's claims, to wit, defamation, malicious prosecution and c. 93A. We shall address each claim in turn.
A. DEFAMATION
Mrs. Khoury's statement to Doyle imputes criminal conduct to Houle. Such an imputation is defamatory per se. See Jones v. Tabbi, 400 Mass. 786, 792 (1987); Stone v. Essex Cty. Newspapers, Inc., 367 Mass. 849, 853 (1975). Mrs. Khoury, for the purposes of this motion, does not contest that she made the statement nor does she contest its defamatory nature. Instead, she argues that her statement that Houle was under "federal investigation" was substantially true and therefore she cannot be held liable.
The Supreme Judicial Court is firm that the truth is an absolute defense to a defamation action. See Milgroom v. News Group Boston, Inc., 412 Mass. 9, 12-13 (1992). In fact, the statement need not be absolutely accurate to avoid liability; it is enough, for a defense, if the statement is substantially true. Id. at 13. Mrs. Khoury contends that, at the time she stated that Houle was under federal investigation, Houle was actually under investigation by the Bellingham Police. Hence, her statement to Doyle, she claims, was substantially true, thus providing her with a Milgroom defense. Mrs. Khoury likens the Bellingham inquiry to a federal one by asserting that both entail a criminal investigation. Her defamatory description of the investigation as federal, rather than local, should not, she argues, preclude this court from finding the statement substantially true and, therefore, non-actionable.
The circumstances under which Ms. Khoury made her statement do not, however, permit the court to accept her analogy as a matter of law. Mrs. Khoury made the defamatory statement after Mr. Khoury's initial encounter with Detective Lemon, but before her meeting with the detective at the Bellingham Police Station on July 29, 1992. Mr. Khoury's encounter with Detective Lemon resulted in the detective's advising him to confront Houle with a witness present. Detective Lemon did not take notes, create a file, or investigate the matter further. In short, the Bellingham Police took no action that would warrant the finding, as a matter of law, that Houle was under any type of investigation. No criminal investigation by the Bellingham Police seems to have been ongoing at the time, July 27, Mrs. Khoury informed Doyle that Houle was under federal investigation. The apparent absence of any investigation, town or federal, operates to undermine Khoury's "substantially true" argument and to preclude, at the least, entry of summary judgment in her favor on the defamation count. Whether or not Detective Lemon's conduct constituted an investigation is a genuine issue of material fact deserving of determination at trial.
B. MALICIOUS PROSECUTION
Houle's complaint also alleges that Mrs. Khoury encouraged the Bellingham Police to press charges in order to prevent Houle from opening her own travel agency. The Appeals Court instructs that, "[c]entral to the tort of malicious prosecution is that the actor to be held liable must have made perverse use of the litigation process by instigating criminal proceedings without probable cause and primarily for a purpose other than bringing the targeted person to justice." Conway v. Sterling, 37 Mass. App. Ct. 1, 3 (1994). The probable cause standard is an objective one and, if the facts would justify a reasonable person in thinking that a crime has been committed, then a complaint to the police is warranted and not actionable. Id. at 5. Conversely, if there was no probable cause, the civil action for malicious prosecution may be pressed. But, a showing of no probable cause for the criminal complaint is not the end of the civil plaintiff's burden. A malicious prosecution claim also requires the plaintiff to prove that the defendant initiated court proceedings with hostility or ill will or in order to gain a private advantage. See id. at 3; Restatement (Second) Torts § 668 comments c-g. Where no evidence supports the plaintiff's theory that defendant had a purpose other than bringing the suspected criminal to justice, defendant is entitled to judgment. See Conway, 37 Mass. App. Ct. at 6 (affirming trial court's judgment n.o.v. on malicious prosecution claim).
With respect to the probable cause component of the instant cause of action, Houle has failed to present any persuasive evidence on the summary judgment record to support her claim that Mrs. Khoury lacked probable cause to believe that a crime had been committed. Mrs. Khoury discovered the travel voucher that Houle proposed to use for her trip to Aruba and promptly presented it to her husband. Mr. Khoury then discussed the matter with Detective Lemon and confronted Houle in accordance with Lemon's advice. All of Mr. Khoury's actions indicate that he believed that, at a minimum, the agency was a partial owner of the voucher. Mr. Khoury was, therefore, reasonable in his belief that Houle was stealing from the agency and Mrs. Khoury acted reasonably in bringing their complaint to the Bellingham Police.
That the district court judge, after the show cause hearing, ordered the complaint to issue is supportive, although not dispositive, of the probable cause issue.
With respect to the improper motive component, Houle contends that Mr. Khoury never claimed a proper ownership interest in the voucher. Houle asserts that "[t]here will be ample evidence from which a jury can find; that the defendant lied to the Police about ownership of the ticket and that she did it maliciously to injure the plaintiff's reputation and prevent her from working for a competitor or herself in competition with Khoury's Travel Agent [sic]." That declaration, if supported in the evidentiary record, would likely allow Houle to avoid summary judgment on her malicious prosecution claim. Houle, however, has cited to no persuasive evidence from which this court may infer an improper purpose in Mrs. Khoury's obtaining a criminal complaint against her. The record reflects that Mr. Khoury spoke with Detective Lemon prior to Houle's leaving the agency. Following that meeting, all the legal actions taken by the Khourys were entirely consistent with their reasonable belief that Houle had misappropriated the travel voucher. Moreover, the Khourys acted almost entirely on the Detective Lemon's advice. Houle offers nothing but her own affidavit in support of her contention that Mrs. Khoury lied to the police in order to obtain the criminal complaint. Such reliance on one's own assertions of disputed fact cannot carry the day on a summary judgment motion. See Lalonde, 405 Mass. at 17.
There being no demonstration on this record that Houle will be able to satisfy her evidentiary burdens at trial, the court will grant Mrs. Khoury's motion for summary judgment as to Houle's malicious prosecution claim. See Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991) (moving party may satisfy summary judgment burden by demonstrating that proof of essential element is unlikely to be forthcoming at trial).
C. G.L.c. 93A
In addition to her common law claims for defamation and malicious prosecution, Houle alleges that Khoury's conduct violates G.L.c. 93A. Defamation will support liability under c. 93A where it entails immoral, unethical, oppressive, or unscrupulous conduct that causes substantial injury to other businessmen. See A.F.M. Corp. v. Corporate Aircraft Mgmt., 626 F. Supp. 1533, 1551 (D.Mass. 1985). At bar, Mrs. Khoury has demonstrated, as a matter of law, that her remarks did not cause substantial injury to Houle's business.
Doyle's deposition testimony establishes that Mrs. Khoury's statement — to the effect that Houle was under federal investigation — did not influence Garelick Farms' choice of travel agents. Houle has presented no affirmative evidence to rebut this allegation and has presented no other evidence that she incurred substantial injury. Mrs. Khoury made an injudicious comment that may provide a basis for defamation liability. That comment, however, is not of a sort, in context, that will provide a basis for liability under c. 93A. Accordingly, the court will grant Khoury's motion for summary judgment as to Houle's G.L.c. 93A claim.
ORDER
It is therefore ORDERED that Defendant's Motion for Summary Judgment as to Plaintiff's defamation claim be DENIED, but that Defendant's Motion for Summary Judgment on all other counts be ALLOWED.
____________________________ Daniel F. Toomey Justice of the Superior Court
Dated: February, 1998