Opinion
11-P-196
01-06-2012
JOHN E. BOYLE v. CAPE COD TIMES & others.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, John Boyle, appeals from a summary judgment dismissing his claims of defamation and intentional infliction of emotional distress against the defendants Cape Cod Times, Dow Jones Local Media Group, Inc., Amanda Lehmert, Ann Brennan, and Peter Myer.
In reviewing the allowance of summary judgment, we work from the same record as the motion judge and decide the motion de novo. Miller v. Cotter, 448 Mass. 671, 676 (2007). Here, we look at the evidence in the light most favorable to Boyle to determine whether the record on summary judgment contains evidence sufficient to raise issues of fact on each of the elements of Boyle's claims. For substantially the reasons discussed in the motion judge's thorough memorandum of decision, we conclude that Boyle cannot show that he was defamed and, therefore, the defendants' motion for summary judgment was properly allowed.
While a judge's memorandum of decision does not relieve us of our responsibility to review the record independently, that memorandum often, as here, provides a helpful analysis and makes our review more efficient.
Boyle's claim of intentional infliction of emotional distress and his defamation claim arise out of the same conduct, namely the publishing of certain statements. Having concluded that none of the statements was false and defamatory, we also conclude, as a matter of law, that the defendants' conduct in publishing the statements was not 'extreme and outrageous,' 'beyond all possible bounds of decency,' or 'utterly intolerable in a civilized community.' Howell v. Enterprise Publishing Co., LLC, 455 Mass. 641, 672 (2010), quoting from Agis v. Howard Johnson Co., 371 Mass. 140, 144-145 (1976). Therefore, Boyle has failed to put forth sufficient evidence to support his claim of intentional infliction of emotional distress.
The summary judgment record shows that Boyle owned and operated two businesses on Cape Cod, a livery service known as King's Coach and a trash-hauling company known as Five Star. He purchased the latter business from the estate of Shirley Reine, who was found murdered in her garage in 2005. Shortly after acquiring Five Star, Boyle discovered that the company was in poor financial condition, which, in turn, put pressure on the financial health of King's Coach. By 2006, King's Coach was experiencing serious financial difficulty. Boyle did not renew his livery license and decided to try to sell the company. He looked for a buyer but was unsuccessful and suspended the effort in April, 2006.
Meanwhile, defendant Lehmert, a reporter for the Cape Cod Times newspaper, started investigating Reine's murder. Because Boyle was associated with Reine and her husband, Lehmert contacted him, and he agreed to cooperate with Lehmert on the investigation. Lehmert soon discovered that Boyle's businesses were struggling. She spoke with various employees of King's Coach who claimed that they were owed approximately $33,000 in back wages and that Boyle's bookkeeper had quit because she was owed $5,000. Lehmert also learned that several King's Coach motor vehicle inspection stickers were expired and that Boyle had been charged criminally with larceny by check and failure to maintain workers' compensation insurance. In addition, Lehmert discovered that more than one King's Coach customer claimed to have been charged for services they did not receive, that Boyle was operating his business without a license, and that the Attorney General's office was investigating complaints from Boyle's employees and customers.
Lehmert reported these facts in two articles she wrote about Boyle, which were published in the Cape Cod Times on July 21, 2006, and September 9, 2006. Lehmert also reported that Boyle had struggled financially after buying Five Star, which had been owned by Shirley Reine, 'who was found shot dead in her garage in May 2005.' One article mentioned that Boyle could not be reached for comment. In his complaint, Boyle alleges that certain statements, including those concerning the money he owed to his employees, whether he was operating his livery business 'illegally,' whether his bookkeeper was fired or quit, and whether he could be reached for comment, were false and defamatory. He also contends that the articles falsely implied that he was somehow connected to Reine's murder.
In granting summary judgment, the motion judge determined that the challenged statements were either substantially true, or, even if false, were not defamatory. Consequently, the judge ruled that the record did not support a claim of defamation. Our review of the record, including Boyle's affidavit, leads us to the same conclusion.
As the judge noted, while Boyle maintains that the statement in the article that he owed his employees $33,000 is false, he admits that he owed his employees money and acknowledges that the employees have made claims for $20,000. Similarly, even though Boyle acknowledges that he was operating his livery business without a license, he contends that the allegation that he was operating his business 'illegally' is untrue because he allegedly received verbal authorization to operate without a license. Our case law holds that 'when a statement is substantially true, a minor inaccuracy will not support a defamation claim.' Reilly v. Associated Press, 59 Mass. App. Ct. 764, 770 (2003). Here, as the motion judge aptly observed, Boyle's claims are based on minor factual discrepancies. As such, they are insufficient to defeat summary judgment.
We further conclude, as did the judge, that no reasonable reader could infer from either article that Boyle was implicated in or in any way connected to Reine's murder. '[I]n a defamation action a threshold issue is whether the statement is reasonably susceptible of a defamatory meaning, and that determination is a question of law for the court.' Foley v. Lowell Sun Publishing Co., 404 Mass. 9, 11 (1989). The appropriate inquiry here is whether a reasonable reader would have understood the statements as connecting Boyle to the murder. See Phelan v. May Dept. Stores Co., 443 Mass. 52, 57 (2004). Because no reasonable reader could do so, the defendants' motion for summary judgment was properly allowed.
We reach a similar conclusion with respect to Boyle's claims concerning statements about whether his bookkeeper quit or was fired and whether Lehmert tried to reach him for a comment. Whether true or not, neither has the potential to discredit Boyle in the mind of a reasonable reader.
Judgment affirmed.
By the Court (Green, Vuono & Milkey, JJ.),