Loreen DALY v. TOWN OF SANDWICH & others.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Loreen Daly, appeals from a judgment entered by a Superior Court judge granting the defendants’ motion for summary judgment on all claims. Concluding that the plaintiff failed to show a genuine issue of material fact with respect to her claims of fraud and misrepresentation, civil conspiracy, deprivation of due process, and violation of the Massachusetts Civil Rights Act, we affirm.
1. Background. In November 2004, the plaintiff purchased a three bedroom, single family home (property) in the town of Sandwich (town) from a private developer (developer). The property was located in a G. L. c. 40B development named “Woodside Village,” and the deed to the property was recorded with a restriction that classified it as a “moderate” home, limiting the maximum resale price of the property to “assure its affordability by future middle income purchasers.” Subsequent to closing on the property, the plaintiff became aware for the first time that a nonstandard Fixed Activated Sludge Treatment (FAST) denitrification septic system was installed on the property.
As Woodside Village was located in a sensitive water resource area, it was subject to nitrogen restrictions. To increase the number of bedrooms permitted in the development, the developer made the decision to install six FAST denitrification systems in some of the housing units. Three of these systems were installed in units designated for affordable buyers, and the other three were installed in units designated for moderate income buyers. The FAST systems require ongoing maintenance and monitoring well in excess of that required for standard septic systems.
Once the plaintiff discovered the FAST system, she immediately requested that it be removed, as she was not notified of its installation and did not sign a contract for the maintenance of the system. The developer referred her to defendant David Mason, the town's director of public health.
Mason in turn sought guidance from Brian Dudley of the Department of Environmental Protection (DEP). After consulting with Dudley, Mason informed the plaintiff, in a letter dated February 1, 2005,
“[T]he alternative system may be abandoned with the following stipulations: 1) A deed restriction limiting the dwelling to two bedrooms must be placed on the property deed․ 2) You must provide this office with existing floor plans for a 2 bedroom home․ You should contact the Assessors Office to schedule a site visit so the number of bedrooms can be determined. 3) The alternative septic system must be removed and replaced with a fitted tank that meets the minimum 1500 gallon septic tank requirement.”
Thereafter, the plaintiff eliminated a bedroom and recorded a two bedroom deed restriction. The plaintiff filed suit, unrelated to this action, against the developer to require him to remove the FAST system. Upon settlement of that action, the developer agreed to remove the FAST system and to write a letter to the town's zoning board of appeals (board) requesting that the deed restriction designating the property as a “moderate” income property be lifted in consideration of the plaintiff's removal of a third bedroom and recording of a two bedroom deed restriction. The FAST components of the system were then removed and replaced with a standard cover, and the existing 1500 gallon tank remained on the property.
In August 2009, the plaintiff submitted a request to the board to modify the comprehensive permit to remove the “moderate” deed restriction from her unit, thus allowing the property to be sold at market rate. Her request was deemed a substantial change to the comprehensive permit by the board, and it was scheduled for a public hearing. Subsequently, allegedly at the direction of a town planner, the plaintiff rescinded her request and purchased a list of abutters from the town to notify them of the hearing. She submitted another request to remove the deed restriction in October 2009. The plaintiff was never heard at a public hearing with respect to her request.
In August 2010, after several back and forth e-mail communications between the plaintiff and assistant town manager Douglas Lapp (a defendant), Lapp told the plaintiff that the town was not interested in discussing a settlement with respect to the property's deed restrictions, and, “if [the plaintiff] want[ed] to continue pursuing these matters then we strongly encourage [the plaintiff] to hire an attorney.” The plaintiff in fact hired an attorney and sued the town and several of its officials and employees for fraud and misrepresentation, civil conspiracy, denial of due process, and violation of the Massachusetts Civil Rights Act. A judge granted summary judgment to the defendants, and this appeal followed.
2. Standard of review. In evaluating the allowance of a motion for summary judgment, “we review de novo whether there were genuine issues of material fact.” Cellco Partnership v. Peabody, 98 Mass. App. Ct. 496, 500 (2020). “The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law.” Molina v. State Garden, Inc., 88 Mass. App. Ct. 173, 177 (2015), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). “In order to defeat summary judgment, the [opposing party is] required to ‘set forth specific facts showing that there is a genuine issue for trial.’ ” Athanasiou v. Selectmen of Westhampton, 92 Mass. App. Ct. 94, 98 (2017), quoting Mass. R. Civ. P. 56 (e), 365 Mass. 824 (1974).
3. Fraud and misrepresentation. a. Elements of fraud. “Under the common law, fraud is a knowing false representation of a material fact intended to induce a plaintiff to act in reliance, where the plaintiff did, in fact, rely on the misrepresentation to his [or her] detriment.” Fordyce v. Hanover, 457 Mass. 248, 257 (2010). The plaintiff's fraud and misrepresentation claim, as it stood at the time of summary judgment, was solely against defendant Mason.
b. Requirements to remove FAST system. In her brief, the plaintiff alleges that Mason was aware “(1) that the DEP merely approved the use of six denitrification systems and did not require them as he later alleged; and, (2) that the FAST denitrification system installed on [the plaintiff's] property was unlawfully installed by [the developer].”
The summary judgment record offers nothing to show that the six denitrification systems were not in fact required by the DEP. Although it is extremely difficult to read, it appears that the aggregation plan for the development that Mason signed included an attached plot plan with a chart indicating that a denitrification system would be installed on the plaintiff's lot. Further, an e-mail from a DEP employee to the plaintiff's attorney stated, “The FAST units at this location were installed as part of a nitrogen aggregation plan. MassDEP did not approve the I/A systems per se. They were required as part of the aggregation plan approval” (second emphasis added). The plaintiff points to Mason's responses to the plaintiff's request for admissions, where he stated that “the nitrogen aggregation loading plan ․ [was] approved by DEP ․ [and] included, as part of the approved plan, the installation of six (6) denitrification septic systems in Woodside Village.” Just because the plan including the six FAST systems was “approved” by the DEP does not mean that it was not also “required.” Indeed, one would presume that DEP would not approve a plan unless it contained all the elements that were required.3 In a letter dated April 11, 2006, from the DEP to plaintiff's counsel, a DEP employee stated, “The local approving authority, in this case the Sandwich Board of Health, was responsible for reviewing the developer's application and for applying the Title 5 regulations requiring a nitrogen reducing innovative alternative system if the design flows from the residences exceed 440 gpd per acre” (emphasis added), which the development exceeded. As the summary judgment record does not contain evidence that would allow a trier of fact to find that the six FAST denitrification systems were not required, the plaintiff has no reasonable expectation of proving at trial that Mason knew that they were not required. See Stolzoff v. Waste Sys. Int'l, Inc., 58 Mass. App. Ct. 747, 759 (2003), quoting Danca v. Taunton Sav. Bank, 385 Mass. 1, 8 (1982) (to establish fraud, plaintiff must show “the defendant made a false representation of a material fact with knowledge of its falsity”). Accordingly, any suggestion by Mason that the FAST system was required for the plaintiff to maintain a three bedroom residence on the property cannot serve as a “knowing false representation of a material fact.” Fordyce, 457 Mass. at 257.4
c. Removal and replacement of the tank. The plaintiff alleges that Mason committed fraud in stating that she would have to “remove and replace” the tank while allowing the developer, who ultimately took on the task of replacing the system, to “just change out the covers” and leave the original tank in the ground. Mason's instruction to the plaintiff that “[t]he alternative septic system must be removed and replaced with a fitted tank that meets the minimum 1500 gallon septic tank requirement” was incorrect, as demonstrated by the permit allowing the developer to remove the FAST system and replace the existing cover with a standard cover. Although this statement was in error, the summary judgment record contains nothing from which a trier of fact could reasonably find that it was knowingly false. On the contrary, the fact that Mason reached out to Dudley, an employee of the DEP, suggests that he did not know how to address this matter at first glance, and that he referred to an individual of greater knowledge to ensure an accurate response.
Furthermore, the summary judgment record contains nothing that would allow a trier of fact to find that the plaintiff acted upon this statement to her detriment. See Masingill v. EMC Corp., 449 Mass. 532, 540 (2007), quoting Kilroy v. Barron, 326 Mass. 464, 465 (1950) (“To recover for fraudulent misrepresentation, a plaintiff ‘must allege and prove that the defendant made a false representation of a material fact with knowledge of its falsity for the purpose of inducing the plaintiff to act thereon, and that the plaintiff relied upon the representation as true and acted upon it to [her] damage’ ”). It was the developer, not the plaintiff, who undertook the effort and incurred the financial obligation to remove the FAST system, pursuant to the settlement agreement between them. See Copley Place Assocs., LLC v. Téllez-Bortoni, 91 Mass. App. Ct. 186, 188-189 (2017) (discussing importance of showing reliance in fraud or deceit action).5
4. Civil conspiracy. There are two types of civil conspiracy under Massachusetts law: (1) conspiracy to commit a tort and (2) peculiar power of coercion. Under the first theory, to prove a claim of civil conspiracy to commit a tort, the plaintiff “must show an underlying tortious act in which two or more persons acted in concert and in furtherance of a common design or agreement.” Bartle v. Berry, 80 Mass. App. Ct. 372, 383-384 (2011). Where the plaintiff fails to offer evidence that the defendants acted together to injure the plaintiff, “[i]t is not sufficient to prove joint tortious acts of two or more persons.” Gutierrez v. Massachusetts Bay Transp. Auth., 437 Mass. 396, 415 (2002), quoting J.R. Nolan & L.J. Sartorio, Tort Law § 99, at 134 (2d ed. 1989). Under the second theory, “[t]he element of coercion has been required only if there was no independent basis for imposing tort liability -- where the wrong was in the particular combination of the defendants rather than in the tortious nature of the underlying conduct.” Kurker v. Hill, 44 Mass. App. Ct. 184, 188 (1998). Accord Fleming v. Dane, 304 Mass. 46, 50 (1939), quoting DesLauries v. Shea, 300 Mass. 20, 33 (1938) (“in order to prove an independent tort for conspiracy upon the basis of ‘mere force of numbers acting in unison’ it must be shown that there was some ‘peculiar power of coercion of the plaintiff possessed by the defendants in combination which any individual standing in a like relation to the plaintiff would not have had’ ”); Neustadt v. Employers Liab. Assur. Corp., 303 Mass. 321, 325 (1939).
The plaintiff's civil conspiracy claim against the various individual defendants fails, because the summary judgment record contains no evidence that these defendants “acted in unison” or in “furtherance of a common design or agreement.”6 Bartle, 80 Mass. App. Ct. at 383-384. The only evidence that the defendants acted together in responding to the plaintiff's concerns are the e-mails between them in which they discuss the plaintiff's frustration with her deed restrictions and the FAST system. Although there are communications between most of the defendants in these e-mails, none of them evince any agreement to work against the plaintiff. Contrast Wodinsky v. Kettenbach, 86 Mass. App. Ct. 825, 837 (2015) (civil conspiracy demonstrated where one defendant acted on other defendant's behalf in communications with plaintiff and all defendants worked together to shut down elevator to force plaintiff, fourth floor tenant, out). Notably, all of the e-mails post-date the plaintiff's removal of her bedroom and the FAST denitrification system, and none of them contain discussions intimating that the FAST system could have been removed without removing a bedroom.
Regarding the plaintiff's allegation that the individual defendants acted together to mislead her in her request to remove her deed restriction, there is no evidence in the summary judgment record to suggest that the defendants acted in furtherance of “an agreement” to prevent her from removing her restriction. The plaintiff's bare allegations that the defendants “engaged in a continuous effort to hide that [they] failed to take action on [the developer's] letter,” and “embarked on a dubious joint effort to mislead” her is, without more, simply not sufficient to show civil conspiracy. See Kurker, 44 Mass. App. Ct. at 189, quoting Stock v. Fife, 13 Mass. App. Ct. 75, 82 n.10 (1982) (“In the tort field, the [concerted action] doctrine appears to be reserved for application to facts which manifest a common plan to commit a tortious act where the participants know of the plan and its purpose and take affirmative steps to encourage the achievement of the result”). Accordingly, summary judgment in favor of the defendants was appropriate on the civil conspiracy claim.
5. Massachusetts Civil Rights Act. To prevail on a claim under the Massachusetts Civil Rights Act (act), G. L. c. 12, §§ 11H, 11I, “the plaintiff must prove that the defendant[ ] used ‘threats, intimidation or coercion’ to interfere with, or attempt to interfere with, rights secured by the Constitution or laws of the United States or the Commonwealth of Massachusetts.” Mancuso v. Massachusetts Interscholastic Athletic Ass'n, 453 Mass. 116, 131 (2009), quoting Brum v. Dartmouth, 428 Mass. 684, 707-708 (1999). “A ‘threat’ is ‘the intentional exertion of pressure to make another fearful or apprehensive of injury or harm.’ ․ ‘Intimidation’ involves putting one in fear for the purpose of compelling or deterring conduct.’ ‘Coercion’ is the application to another of force ‘to constrain him to do against his will something he would not otherwise have done’ ” (citations omitted). Mancuso, supra, quoting Kennie v. Natural Resource Dep't of Dennis, 451 Mass. 754, 763 (2008). The act does not “require[ ] proof of specific intent or of some overtly menacing behavior on the part of the defendants.” Reproductive Rights Network v. President of the Univ. of Mass., 45 Mass. App. Ct. 495, 508 (1998).
Here, the plaintiff advanced these claims only against Mason in her summary judgment pleadings. Looking at the evidence in the summary judgment record in the light most favorable to the plaintiff, there was nothing to support that Mason used “threats,” “intimidation,” or “coercion” to interfere with her rights. Mancuso, 453 Mass. at 131. “[T]he direct violation of a right by itself is not the equivalent of coercion.” Currier v. National Bd. of Med. Examiners, 462 Mass. 1, 13 (2012). Coercion constitutes “the active domination of another's will.” Id. at 12, quoting Buster v. George W. Moore, Inc., 438 Mass. 635, 646 (2003). “Whether conduct constitutes coercion is examined from an objective, reasonable person standard.” Currier, supra at 13. The act does “not require that the defendant's action be wilful.” Redgrave v. Boston Symphony Orch., Inc., 399 Mass. 93, 99 (1987).
Assuming, without deciding, that the plaintiff was deprived of a constitutionally protected property right, Mason's interference with that right does not constitute the kind of coercion contemplated by the act. Although he instructed her that, to obtain a permit to replace the FAST denitrification system she would have to remove a bedroom and record a deed restriction, he did not tell her that she had to replace her septic system. If the plaintiff chose not to do so, she could have kept her third bedroom.7 See Currier, 462 Mass. at 13 (where defendant prohibited plaintiff from expressing breast milk when she wanted to, but not from expressing breast milk in totality, not coercion).
Although much of her argument discusses coercion, the plaintiff briefly states that she felt “threatened and intimidated” by Mason. This is not enough to raise a genuine issue of material fact. “That [the plaintiff] subjectively may have felt ‘threatened’ or ‘intimidated’ does not suffice.” Glovsky v. Roche Bros. Supermkts., Inc., 469 Mass. 752, 764 (2014) (rejecting plaintiff's claims under act where store manager told plaintiff he could not solicit signatures there).
6. Due process. Although the plaintiff captioned her final claim against Mason as proceeding under art. 11 of the Massachusetts Declaration of Rights, she set out an equal protection claim under the Fourteenth Amendment to the United States Constitution, alleging that she was singled out for worse treatment than the other homeowners in the development with FAST systems because she was the only single woman.8 “The equal protection clause of the Fourteenth Amendment mandates that ‘all persons similarly situated should be treated alike.’ ” Mancuso, 453 Mass. at 128, quoting Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985). To prevail on a “class of one” equal protection claim, the plaintiff must demonstrate that “(i) he [or she] was treated differently than other similarly situated supplicants and (ii) the differential treatment resulted from a gross abuse of power, invidious discrimination, or some other fundamental procedural unfairness.” Mancuso, supra at 129, quoting Pagan v. Calderon, 448 F.3d 16, 34 (1st Cir. 2006).
The summary judgment record fails to establish a genuine issue of material fact regarding the first prong of this test. The record does not show that anyone else was “similarly situated” to the plaintiff. On the record before us, she was the only individual to request that her FAST system be removed. See DuPont v. Commissioner of Correction, 448 Mass. 389, 399 (2007) (“An equal protection claim can only succeed if a plaintiff establishes that government action discriminates against similarly situated persons”); Gianfrancesco v. Wrentham, 712 F.3d 634, 640 (1st Cir. 2013) (“a class-of-one plaintiff bears the burden of showing that his comparators are similarly situated in all respects relevant to the challenged government action”). Furthermore, the summary judgment record contains no evidence of the marital status of the other homeowners aside from the plaintiff's naked belief that they were married. Indeed, three of the five letters the board of health sent to homeowners instructing them to maintain their FAST systems are addressed to a woman only. The plaintiff stated in her deposition that she only assumes that Mason knows the other homeowners are married. Finally, the plaintiff's naked belief that Mason discriminated against her based on gender because “it's a feeling [she] get[s] as a female” and because her “guess” is that “if [she] was a male, this would not be ․ done to [her]” was insufficient to survive a motion for summary judgment.9
3. In a letter to an affordable housing specialist discussing the Woodside Village Development, town administrator George Dunham stated, “[T]he developer proposes to use the HOME funds to write down the cost of denitrifying septic systems for some of the homes to better protect drinking water supplies.” This statement, similarly, is no indication that these septic systems were not in fact required to maintain the number of bedrooms built in the development.
4. Similarly, the plaintiff does not explain how the omission of the alleged “unlawfully installed” FAST system in Mason's letter induced her to remove the system and her third bedroom. Any unlawful installation might provide a cause of action against the developer but would not change DEP requirements for correcting the problem. Furthermore, there is nothing in the summary judgment record that would allow a trier of fact to find that Mason knew that the system was unlawfully installed at the time he wrote the letter.
5. The plaintiff alleges that Mason made further misrepresentations when he inaccurately described the square footage of the development and the bedrooms allowed under G. L. c. 40B. As the plaintiff in no way explains how she relied on this to her detriment, it cannot support a claim of fraud or misrepresentation. See Copley Place Assocs., LLC, 91 Mass. App. Ct. at 188-189. Furthermore, as her claim that Mason was aware that the developer “switched lots” by installing the FAST system on her property instead of a market rate property was not raised in her opposition and cross motion for summary judgment, we do not consider it. See Kaplan v. Board of Pub. Accountancy, 452 Mass. 1026, 1028 (2008) (we do not consider claims raised for first time on appeal). Moreover, despite the inclusion of this claim in her complaint, the plaintiff states in her brief that this was not a basis for her claim of fraud and misrepresentation against Mason.
6. The plaintiff alleges that the defendants “conspired to (a) force [the plaintiff] to remove a bedroom; (b) hide the fact that the DEP never required that [the FAST system] be installed on her property; [and] (c) deliberately mislead her regarding the subsequent request to remove the Moderate deed restriction” and that they “(d) interfered with and obstructed her property rights; and, (e) were motivated by discriminatory intent.”
7. Similarly, the summary judgment record contains no evidence that Mason allowed other homeowners to turn off their systems. On the contrary, the board of health, of which Mason was the director, sent each homeowner in the development with a FAST denitrification system a letter instructing them that the system had to be turned on and maintained according to Massachusetts law. The plaintiff was the only homeowner who had to remove a bedroom because she was the only homeowner who requested to have her FAST system removed.
8. In her memorandum in opposition to the defendants’ motion for summary judgment and cross motion for summary judgment, the plaintiff raised a takings claim. As she does not pursue this on appeal, but discusses the denial of the right to use and enjoy her property, we confine our analysis to her discrimination claim. See Kaplan, 452 Mass. at 1028.
9. As we affirm the judgment granting the defendants summary judgment on other grounds, we need not consider the defendants’ arguments with respect to the statute of limitations, privilege, qualified immunity, or preemption of the Massachusetts Civil Rights Act. See Li v. Zeng, 98 Mass. App. Ct. 743, 747 (2020) (court need not address alternate grounds for failure of plaintiff's claim where it fails for another reason).
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