JOANNA DEPENA & Others v. KERVIN VALDEZ.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-659

JOANNA DEPENA & others.1

vs.

KERVIN VALDEZ.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiffs, Joanna DePena, Jenny Alvarez, and Julio

Meran, appeal from a judgment dismissing their complaint against

Kervin Valdez, the defendant, pursuant to Mass. R. Civ. P. 12

(b) (6), 365 Mass. 754 (1974). The plaintiffs also attempt to

challenge the now-retired judge's denial of their postjudgment

motion to recuse. We affirm in part and vacate in part.

Background. For purposes of the motion to dismiss, we

treat the allegations of the amended complaint as true, see

Lanier v. President & Fellows of Harvard College, 490 Mass. 37,

40 (2022). The plaintiffs are affiliated with various

nonprofits serving Lawrence, Massachusetts. The defendant

operates a business in Lawrence, Massachusetts. The plaintiffs

1 Jenny Alvarez and Julio Meran.
and the defendant collaborated on a community event designed to

provide 40,000 pounds of food to 1,200 families in the greater

Lawrence area. A dispute arose as to whether larger, higher

priced turkeys should be purchased versus smaller, lower priced

turkeys. The defendant purchased the larger, more expensive

turkeys, and requested payment from the plaintiffs' nonprofits.

On behalf of the nonprofits the plaintiffs refused to pay,

claiming that they had not authorized the higher expenditure and

requesting invoices. According to the introduction to the

amended complaint, the defendant then made comments on social

media to the effect that the plaintiffs had "stolen" or

misappropriated money intended for charity. The plaintiffs

thereafter sued alleging defamation (count one), intentional

infliction of emotional distress (count two), and unfair and

deceptive trade practices in violation of G. L. c. 93A (count

three).

Discussion. 1. Procedure. The plaintiffs contend that

the judge erred in treating the defendant's motion to dismiss as

such rather than a motion for summary judgment. After the

motion to dismiss was filed, the plaintiffs submitted a number

of unverified documents in opposition. This filing failed to

comport with the requirements of Superior Court Rule 9A or the

verification requirements of Mass. R. Civ. P. 56, 365 Mass. 824

(1974). See Bardige v. Performance Specialists, Inc., 74 Mass.

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App. Ct. 99, 103 (2009), and cases cited (party opposing motion

for summary judgment must submit verified affidavits and

documents showing facts that would be admissible at trial, and

which demonstrate genuine dispute of material fact). The judge

ruled, correctly, that the plaintiffs would gain nothing by

converting the defendant's motion to one heard under rule 56,

see Eigerman v. Putnam Invs., Inc., 450 Mass. 281, 285 n.6

(2007), because the proffered documents could not be properly

considered. Moreover, the plaintiffs expressed their assent to

this procedure at the hearing before the judge, thus waiving the

issue in any event.2 See Zucco v. Kane, 439 Mass. 503, 509-510

(2003); Nantucket Land Council, Inc. v. Planning Bd. of

Nantucket, 5 Mass. App. Ct. 206, 207 n.2 (1977).

2. Dismissal. "We review the grant of a motion to dismiss

de novo, accepting as true all well-pleaded facts alleged in the

complaint, drawing all reasonable inferences therefrom in the

plaintiff's favor, and determining whether the allegations

plausibly suggest that the plaintiff is entitled to relief."

Lanier, 490 Mass. at 43.

Our review of the amended complaint is hampered by the

complaint itself. The amended complaint is both disorganized

and diffuse. Rather than contain a short and plain statement of

2 When the judge said she would treat the motion as a motion to
dismiss, counsel stated, "I understand," and did not object.

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the facts, see Mass. R. Civ. P. 8, 365 Mass. 749 (1974), whole

sections appear in narrative form, conflating fact, law, and

argument. There are no numbered allegations describing the

parties. Other paragraphs are numbered, but the numbers repeat,

and allegations pertaining to one cause of action appear in a

different cause of action. Based on the plaintiffs' responses

to our questions at oral argument and our own reading of the

amended complaint, we understand the amended complaint to allege

claims brought by the individual plaintiffs against the

individual defendant, and we assess the sufficiency of the

allegations in that context.

a. Defamation. The plaintiffs contend that the defamation

claim was dismissed in error. To prove defamation, the

plaintiffs must allege "first, the defendant made a statement,

of and 'concerning the plaintiff, to a third party'; second, the

'statement could damage the plaintiff's reputation in the

community'; third, the defendant was at fault for making the

statement; and fourth, the statement caused economic loss or, in

four specific circumstances, is actionable without economic

loss." Scholz v. Delp, 473 Mass. 242, 249 (2015), quoting

Ravnikar v. Bogojavlensky, 438 Mass. 627, 629–630 (2003).

Although buried in the discursive introduction, the amended

complaint does allege that the defendant posted a false

statement on social media to the effect that the plaintiffs

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"stole" money associated with the community event. This is a

form of libel (a statement charging the plaintiffs with a

crime), which is actionable without proof of economic loss.

Ravnikar, supra at 630; Shafir v. Steele, 431 Mass. 365, 373

(2000); Lynch v. Lyons, 303 Mass. 116, 118-119 (1939). The

defamation claim should not have been dismissed.

b. Intentional or reckless infliction of emotional

distress. To state a claim for reckless or intentional

infliction of emotional distress, "four elements must be

established. It must be shown (1) that the actor intended to

inflict emotional distress or that he knew or should have known

that emotional distress was the likely result of his conduct;

(2) that the conduct was extreme and outrageous, was beyond all

possible bounds of decency and was utterly intolerable in a

civilized community; (3) that the actions of the defendant were

the cause of the plaintiff's distress; and (4) that the

emotional distress sustained by the plaintiff was severe and of

a nature that no reasonable man could be expected to endure it"

(citations and quotations omitted). Agis v. Howard Johnson Co.,

371 Mass. 140, 144-145 (1976). Allegations of extreme or

outrageous conduct therefore must meet a high bar. See Lanier,

490 Mass. at 48. The plaintiffs' amended complaint contains

bare and conclusory allegations that track the elements of the

cause of action. However, the amended complaint fails to allege

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underlying facts sufficient to plausibly suggest that the

defendant's conduct was so extreme and outrageous as to "flout

the most basic community standards of decency and propriety," or

that the plaintiffs suffered severe distress, and count two was

properly dismissed for this reason. Id. In addition, the

plaintiffs have not made any appellate argument regarding the

dismissal of this claim, and the argument is therefore waived.

See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass.

1628 (2019). See also Zoning Bd. of Appeals of Lunenburg v.

Housing Appeals Comm., 464 Mass. 38, 55 (2013) (arguments not

made on appeal are waived).

c. Chapter 93A. The dismissal of the c. 93A claim

presents a more complex issue. The plaintiffs appear to allege

the purchase of the turkeys and demand for payment was an unfair

and deceptive trade practice, but the underlying transaction, as

alleged, was one involving the plaintiffs' nonprofits and the

defendant's business, not the plaintiffs and defendant

individually.3 On appeal, the plaintiffs explicitly ground their

3 To the extent that the amended complaint appears to allege
improper billing and pricing, this is a dispute between the
plaintiffs' nonprofits and the defendant's business, none of
which are parties to this action. Moreover, there is no
allegation in the present complaint that the disagreement
regarding cost, billing, or pricing rose above the level of a
business dispute between the nonprofit and corporate entities.
See generally Anthony's Pier Four, Inc. v. HBC Assocs., 411
Mass. 451, 474 (1991). Further, there exists a fundamental,
threshold question whether the fundraiser constituted commercial

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c. 93A claim on their claim for intentional infliction of

emotional distress, but this claim was properly dismissed.

Finally, the plaintiffs (as individuals) complain of damage to

their professional reputations as a result of allegedly libelous

statements by the defendant as an individual. Such defamation

may support a G. L. c. 93A claim. See Dulgarian v. Stone, 420

Mass. 843, 853 (1995); TLT Constr. Corp. v. A. Anthony Tappe &

Assocs., Inc., 48 Mass. App. Ct. 1, 13 (1999). Where a

defamation claim has been improperly dismissed, the G. L. c. 93A

claim based on the defamation may also survive. Whether the

plaintiffs may bring a claim under G. L. c. 93A, § 9 or § 11

(the complaint fails to allege which), may be decided on remand.

On this one basis only, the c. 93A claim should not have been

dismissed.

3. Recusal. The judge denied the motion to recuse on the

ground that the plaintiffs failed to comply with Superior Court

Rule 9A, without prejudice to their right to refile in

compliance with the rule. The plaintiffs now claim that this

was error. Leaving aside the fact that the motion is now mooted

by the judge's retirement, the plaintiffs failed to file a

activity by parties engaged in trade or commerce, a matter as to
which there are no allegations in the amended complaint. See
Linkage Corp. v. Trustees of Boston Univ., 425 Mass. 1, 23
(1997); Planned Parenthood Fed'n of Am., Inc. v. Problem
Pregnancy of Worcester, 398 Mass. 480, 491-493 (1986).

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notice of appeal from the denial of their motion. See Mass. R.

A. P. 3, as appearing in 481 Mass. 1603 (2019); Mass. R. A. P.

4, as appearing in 481 Mass. 1606 (2019). As a result, there is

no appeal pending from the order denying the motion, and we

cannot review it. While "the letter and spirit of [our rules of

appellate procedure] g[i]ve the Appeals Court the power to act -

- provided the notice of appeal was filed within one year of the

issuance of notice of the order the [plaintiffs] sought to

appeal from," no notice of appeal was filed in this case within

thirty days, nor was there a motion for leave to file late

notice of appeal within the one year period.4 Commonwealth v.

Jordan, 469 Mass. 134, 144 (2014). "A timely notice of appeal

is a jurisdictional prerequisite to our authority to consider

any matter on appeal." DeLucia v. Kfoury, 93 Mass. App. Ct.

166, 170 (2018). Moreover, even if we were able to consider the

issue, we would discern no abuse of discretion in the judge's

decision to require compliance with the procedural rules

applicable to all litigants. Cf. Malden Police Patrolman's

Ass'n v. Malden, 92 Mass. App. Ct. 53, 55-56 (2017) (whether to

hear motion that failed to comply with rule 9A fell within

motion judge's discretion).

4 The motion was denied on March 2, 2022.

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Conclusion. So much of the judgment that dismissed counts

one and three, to the extent that the c. 93A claim in count

three is based on alleged defamatory statements, is vacated. In

all other respects the judgment is affirmed.

So ordered.

By the Court (Sullivan,
Sacks & Ditkoff, JJ.5),

Clerk

Entered: April 28, 2023.

5 The panelists are listed in order of seniority.

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