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25-P-1055 Appeals Court
HAVERHILL STEM LLC & another1 vs. LLOYD JENNINGS & another.2
No. 25-P-1055.
Essex. April 6, 2026. – July 13, 2026.
Present: Blake, C.J., Shin, & Wood, JJ.
Practice, Civil, Judgment notwithstanding verdict, New trial,
Attorney's fees. Privileged Communication. Attorney at
Law. Law of the Case. Massachusetts Civil Rights Act.
Waiver. Civil Rights, Availability of remedy, Attorney's
fees, Motion for attorney's fees. Libel and Slander.
Conspiracy. Damages, Attorney's fees.
Civil action commenced in the Superior Court Department on June 5, 2019.
The case was tried before Elizabeth A. Dunigan, J.; motions for judgment notwithstanding the verdict and for a new trial, filed on January 13, 2025, were considered by her; and a motion for an award of attorney's fees and costs, filed on January 21, 2025, also was heard by her.
Alvin S. Nathanson for the defendants.
Thomas K. MacMillan (Kristin M. Yasenka also present) for the plaintiffs.
1 Caroline Pineau.
2 Brad Brooks.
2
BLAKE, C.J. In this appeal, the defendants, Lloyd Jennings
and Brad Brooks, appeal from a corrected judgment and posttrial
order for attorney's fees that entered after a Superior Court
jury found in favor of the plaintiffs, Haverhill Stem LLC (Stem)
and its owner Caroline Pineau, on their claims for defamation,
civil conspiracy, and violations of their rights under the
Massachusetts Civil Rights Act (MCRA), G. L. c. 12, § 11I.3 The
defendants also appeal from an order dated February 21, 2025,
which denied their motions for judgment notwithstanding the
verdict and for a new trial. Essentially, the defendants argue
that the absolute litigation privilege shields them from civil
liability for their statements and conduct that formed the bases
of the plaintiffs' claims, the verdict was inconsistent, and the
award of attorney's fees was time barred or, alternatively,
unwarranted and an abuse of discretion. For the reasons that
follow, we reverse so much of the order dated February 21, 2025,
that denied the motion for judgment notwithstanding the verdict
on the claim for civil conspiracy. The corrected judgment on
that claim entered in favor of Pineau is vacated, and the case
is remanded for entry of judgment for the defendants on the
claim for civil conspiracy as well as recalculation of damages.
3 Judgment entered in favor of the defendants on the plaintiffs' G. L. c. 93A claim.
3
In all other respects, the corrected judgment and the order
dated February 21, 2025, are affirmed.
Background. We summarize the history of the case and the
facts as the jury could have found them, reserving certain
procedural details for later discussion.
The crux of the issue here arises from a dispute between
abutting business owners. The defendants own the property
located at 128-130 Washington Street in the city of Haverhill
(city), which leases residential units and a restaurant space in
which Jennings held a business interest. Pineau is the sole
manager and member of Stem, a State-licensed cannabis retailer
which leased 124 Washington Street, next to the defendants'
property.4 Prior to Stem's lease, the defendants had constructed
a deck at 124 Washington Street to resolve an issue with the
previous owner of that property.5
As part of the process to open a retail marijuana
dispensary, Pineau gathered signatures in support of Stem
4 Pineau's father purchased 124 Washington Street and leased it to Stem. The plaintiffs have since purchased the property from Pineau's father.
5 The defendants had sought to build a deck behind their own building at 128 Washington Street. The prior owner of 124 Washington Street raised concerns that the defendants' proposed deck extended onto his property; that dispute was resolved by the defendants paying $30,000 to also build a deck behind 124 Washington Street. See Haverhill Stem LLC v. Jennings, 99 Mass. App. Ct. 626, 628 (2021).
4
opening the store in the downtown business district in which the
properties are located. Later, she applied for a special permit
for Stem as required by the applicable zoning ordinance.6 Pineau
also contacted her immediate abutters, including Brooks, to
inform them of her intent to open a marijuana dispensary. After
speaking to Brooks, Pineau met with him in person, and he
demanded $30,000. Pineau testified that when she initially told
Brooks about Stem's lease, he told her, "[Y]ou sure as hell
better bet me and my partner [Jennings] are going to get our
$30,000 back for the deck that we built." Pineau further
testified that Brooks said, "[M]y partner and I said whoever
goes in that building owes us $30,000 for the deck."
Altogether, the defendants met with Pineau, her husband,
her and Stem's attorney, or some combination of them about eight
times between July 2018 to June 2019. At the first formal
meeting with the defendants, Pineau and her husband met them at
a location of their choosing; when Pineau and her husband
arrived, the "office was very dark" and only the defendants were
present. The defendants led Pineau and her husband "down a
long, dark hallway into a conference room" and told Pineau that
6 In January 2019, the city enacted and adopted a zoning ordinance entitled "An Ordinance Relating to Adult Use of Marijuana and Marijuana Establishment." The zoning ordinance provided regulations as to the permissible uses of property and structures in certain districts, including the use of recreational retail marijuana establishments.
5
"they felt disrespected, that [she] hadn't approached them prior
to purchasing the [property] to ask for their permission."
Pineau testified that Jennings, who had more of an interest in
the restaurant, did most of the talking. In addition to the
monetary demand, Pineau was told that it was important for the
restaurant to have access to her deck.
Whenever Pineau's husband left the room, Jennings became
"increasingly more aggressive in tone," to the point that Pineau
"was feeling very uncomfortable." Jennings told her, "You ain't
from this town, [Brooks] and I are. I grew up on these streets,
and I didn't grow up rich." Pineau testified,
"They told me that whoever purchased the property, that it
came with this $30,000 vendetta. They didn't care what
went into the building. They were going to fight it every
step of the way and put whatever went in through the same
hell with the city that they went through."7
In March 2019, the defendants met with Pineau and her
attorney. At this meeting, the defendants again demanded
$30,000 and use of the plaintiffs' deck. Jennings told the
plaintiffs' attorney that Pineau and her husband "didn't know
7 This testimony was supported by Pineau's husband as well as by another business owner, who testified that Brooks told him,
"[The defendants] had this vendetta, and it was going to be
against anybody who tried to do anything with the . . .
property and I said to [Brooks] . . . I tried to buy that
thing four or five different times, so if it was me you
were going to try to beat me up for $30,000 and he said yes
and he was adamant about it."
6
who [they] were dealing with and [the defendants] were going to
fight [the plaintiffs] every step of the way."
The defendants told other people in the community,
including members of the city council and the mayor, that Pineau
owed them $30,000. Pineau's husband testified that six or seven
people in the community, including the mayor, asked him about
the $30,000 debt that the plaintiffs allegedly owed the
defendants.
Although Pineau offered the defendants about $20,000 "[t]o
make [the defendants'] behavior stop and stop intimidating
[her]," Pineau did not ultimately pay the defendants.
As time passed, the defendants eventually increased their
demands from $30,000 to over $75,000. In April 2019, Pineau's
husband met with the defendants again to hear their demands.
Pineau's husband testified that Jennings told him that if the
plaintiffs did not make the payment, "I can promise you that I'm
going to take everything from [Pineau], I'm going to destroy
her, and I don't care if that stops at me taking your house --taking your house from you." He reiterated, "I want to take
everything from her." Jennings further told Pineau's husband
that "if they weren't going to get use of the deck, then the
price was going to be upwards of -- much higher than $75,000,"
7
and the defendants "were looking to file a RICO[8] lawsuit"
against the plaintiffs. Jennings concluded the meeting by
asking whether Pineau's husband "heard the rumor going around
about [Pineau] . . . sleeping with" another business owner so
that Stem could "get a favorable ruling . . . on [the] zoning
dispute" concerning the retail marijuana dispensary.
After this meeting, Pineau filed a report with the
Haverhill police department because she was fearful of the
defendants harming her business, her home, and her person.
Afterward, the defendants called Pineau's husband "saying they
were extremely pissed off that [the plaintiffs] had gone to the
police over this."
In May 2019, the defendants filed a complaint in the Land
Court challenging the zoning ordinance. The complaint named the
plaintiffs and the city as defendants. One month later, the
plaintiffs filed the instant complaint against the defendants in
the Superior Court, alleging violations of the MCRA, unfair and
deceptive trade practices under G. L. c. 93A, civil conspiracy,
and defamation.9 While litigation was pending in both cases, the
8 The Federal Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962(c), was enacted as Title IX of the Organized Crime Control Act of 1970, as a comprehensive criminal and civil remedy to be used against organized criminal activity.
9 The plaintiffs also made claims of civil harassment and intentional interference with contractual and economic relationships, which were both disposed of prior to trial. The
8
plaintiffs applied to the city for the special permit to open
the dispensary. The defendants spoke in opposition to the
plaintiffs' request for the special permit at the public hearing
on June 18, 2019. The special permit was nevertheless granted
and filed with the city clerk in September 2019. That same
month, the defendants filed a second Land Court complaint
against the city and the plaintiffs (among others) challenging
the issuance of the special permit.
While no formal meetings occurred between the parties after
the filing of the instant complaint, interactions did occur,
resulting in Pineau's filing of an application for a harassment
prevention order against Jennings. At trial, Pineau read from
her October 2019 affidavit filed in support of the application,
which was admitted as an exhibit along with the full report.10
She detailed the following:
claim for civil harassment was dismissed on the defendants' first motion to dismiss in March 2020. The plaintiffs voluntarily dismissed their claim for intentional interference with contractual and economic relationships.
10As the trial judge noted in her posttrial memorandum of decision and order on the defendants' motions for judgment notwithstanding the verdict and for a new trial, "[e]vidence of allegations that defendant Jennings threatened to burn down the deck was introduced at trial jointly by the parties as an agreed-upon exhibit" (emphasis added). The judge ultimately instructed the jury that the report and the affidavit were provided for a limited purpose -- "to show the nature of the relationship between the parties and the series of events that occurred between them during this time period."
9
"On or about September 30, 2019, the defendant, Lloyd
Jennings, entered into my building at 124 Washington Street
. . . . This harassment has escalated over the past 12
months, and it is intensifying now with Mr. Jennings coming
into my property without warning. . . . Jennings uses his
criminal reputation to bolster his threats. I was told he
was threatening to burn down my deck, take my home from me,
and I am extremely fearful for me, my two-year-old [child],
who is often at work with me. Mr. Jennings then increased
his threats from 30K to 50K to $75,000. The harassment
continues on a daily basis, and I'm asking for the court's
help in protecting my safety."
The incident described above did not result in formal charges or
issuance of a harassment prevention order against Jennings.
Pineau testified to other intimidating behavior by
Jennings, such as an incident in December 2019, in which she
arrived home and discovered Jennings parked in front of her
house. Pineau testified that after she brought her child inside
her home, Jennings "slowly drove by my house and stared me down,
and then he pulled into the driveway across the street from my
house, did a three-point turn and, again, proceeded to drive
slowly by my driveway and stare me down."
Stem eventually opened in May 2020. Pineau testified that,
in addition to the defendants' opposition to the zoning
ordinance and the special permit, the defendants caused delays
in the plaintiffs' construction by calling State and Federal
regulators "multiple times," prompting inspectional visits.
Because of the delays caused by the defendants' lawsuits and
interference with construction of the store, the plaintiffs lost
10
expected revenue -- approximately "a million dollars a month" --during the "six to eight months'" delay.
In June 2020, the Land Court granted summary judgment in
favor of the city and the plaintiffs on the defendants'
complaint challenging the zoning ordinance. That judgment was
later affirmed by a panel of this court.11 At that time, the
defendants voluntarily dismissed their appeal from the special
permit that was pending in the Land Court.
After the defendants pursued two unsuccessful interlocutory
appeals from orders on their special motion to dismiss this
matter, which we will discuss in more detail infra, trial ensued
in December 2024. On December 12, 2024, the jury returned a
verdict for Stem on the MCRA claim as against Jennings, for
Pineau on the civil conspiracy claim as against both
defendants,12 and for Pineau on the defamation claim as against
both defendants. A corrected judgment ultimately entered on
December 23, 2024.
On January 13, 2025, the defendants filed their motions for
judgment notwithstanding the verdict and for a new trial, which
were denied by the trial judge on February 21, 2025.
11 See Brooks v. Haverhill, 100 Mass. App. Ct. 1105 (2021).
12The jury found that Stem proved the defendants engaged in a civil conspiracy but did not prove harm or damage to Stem, and judgment entered in favor of the defendants on this claim.
11
On January 10, 2025, Stem filed its notice of intent to
file a motion for an award of attorney's fees and costs pursuant
to G. L. c. 12, § 11I. On January 21, 2025, Stem filed its
motion for an award of attorney's fees and costs. On April 10,
2025, the trial judge held a hearing on the motion. On May 8,
2025, the trial judge awarded Stem $174,630 for attorney's fees
and $4,113.25 in costs, for a total of $178,743.25.
Discussion. 1. Standards of review. The defendants
preserved their claims at trial and in postjudgment motions for
judgment notwithstanding the verdict and for a new trial.
Construing the evidence in the light most favorable to the
nonmoving party, we evaluate the denial of a motion for judgment
notwithstanding the verdict to determine "whether 'anywhere in
the evidence, from whatever source derived, any combination of
circumstances could be found from which a reasonable inference
could be made in favor of the [nonmovant].'" O'Brien v.
Pearson, 449 Mass. 377, 383 (2007), quoting Turnpike Motors,
Inc. v. Newbury Group, Inc., 413 Mass. 119, 121 (1992). Our
review of the denial of a motion for new trial is for an abuse
of discretion "when the argument on appeal is based on the
weight of the evidence, whether the damages awarded are
excessive, or the impact of newly discovered evidence." Fyffe
v. Massachusetts Bay Transp. Auth., 86 Mass. App. Ct. 457, 471
(2014). The prejudicial error standard governs our review of
12
the claims before us on direct appeal from the corrected
judgment. See id. at 470-471; Wahlstrom v. JPA IV Mgt. Co., 95
Mass. App. Ct. 445, 448 (2019).
2. Jury verdict. a. Absolute litigation privilege. The
litigation privilege, "which precludes civil liability based on
communications made by a party, witness, or attorney in
connection with judicial proceedings or contemplated
litigation," does not protect the defendants from liability in
these circumstances. Bassichis v. Flores, 490 Mass. 143, 144
(2022). Notably, as this issue was already appealed and no new
evidence was adduced at the trial that would change the outcome
of the earlier decision of a panel of this court, we conclude
that, under the law of the case, the absolute litigation
privilege does not protect the defendants. See Kitras v.
Aquinnah, 474 Mass. 132, 146, cert. denied, 580 U.S. 1000
(2016).
We now recite the fairly complex procedural history on this
issue in some detail. This court has twice considered and
rejected the defendants' arguments. See Haverhill Stem LLC v.
Jennings, 99 Mass. App. Ct. 626, 628 (2021) (Stem I); Haverhill
Stem LLC v. Jennings, 102 Mass. App. Ct. 1121 (2023) (Stem II).13
13 Twice the Supreme Judicial Court denied further appellate review. See 492 Mass. 1106 (2023); 488 Mass. 1102 (2021).
13
In their July 2019 motion to dismiss the complaint pursuant to
Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), and the
"anti-SLAPP" statute, G. L. c. 231, § 59H, the defendants argued
that their allegedly defamatory statements were preliminary to
municipal hearings and, therefore, privileged. After a Superior
Court judge (first motion judge) denied the special motion to
dismiss, the defendants appealed under the doctrine of present
execution.14 Stem I, 99 Mass. App. Ct. at 630-635. In a
published opinion, we affirmed the first motion judge's order
denying the special motion to dismiss. Id. at 635. We
concluded that the defendants' conduct was unconnected to the
litigation -- namely, the two Land Court cases and the special
permit proceeding -- as "the alleged statements at issue [were]
that the defendants would use litigation to obtain monetary
relief and thereby cause [Pineau's] financial ruin"; monetary
relief, however, "could not be obtained as a result of the
14The claim for civil harassment was dismissed at this stage under rule 12 (b) (6), while the claim for interference with contractual relationships was voluntarily dismissed. See note 9, supra. After docketing their interlocutory appeal in Stem I, the defendants answered the complaint in this action and filed counterclaims for abuse of process, malicious prosecution, and MCRA violations. The plaintiffs moved to dismiss the counterclaims pursuant to the anti-SLAPP statute. A different Superior Court judge allowed that motion, leading to a statutory award of attorney's fees against both defendants in the amount of $9,630. That award became part of the corrected judgment and is not at issue here.
14
contemplated Land Court litigation." Id. at 636. Additionally,
we held "that the alleged statements that the defendants claim
are privileged fairly can be viewed as part of the conduct of
extortion" under G. L. c. 93A, and that the privilege would not
attach where "the statements are being used as evidence of the
defendants' misconduct." Id. at 636-637. See Gillette Co. v.
Provost, 91 Mass. App. Ct. 133, 140-141 (2017).
Shortly after release of our decision in Stem I, the
Supreme Judicial Court decided in Bassichis, 490 Mass. at 144,
that an attorney's conduct during litigation was shielded from
civil liability under the litigation privilege. In the trial
court, the defendants renewed their motion to dismiss based on
the holding in Bassichis, supra. Another judge of the Superior
Court (second motion judge) denied this motion. The defendants
filed a second present execution appeal, in which a panel of
this court affirmed the second motion judge's order denying the
renewed motion to dismiss. See Stem II, 102 Mass. App. Ct.
1121. In Stem II, the panel concluded that Bassichis, supra,
neither overruled Stem I nor controlled this case. Importantly,
even had Bassichis cast doubt on Stem I, the panel noted that
the Supreme Judicial Court did not "change the requirement that
the communications and conduct have 'some relation to the
proceeding.'" Stem II, supra, quoting Bassichis, supra at 150.
The defendants "were not entitled to use the shield of the
15
litigation privilege to make threats or false statements that
were unrelated to the subject of the contemplated city council
and Land Court proceedings." Stem II, supra. See Hoar v. Wood,
3 Met. 193, 197 (1841) (litigation privilege is unavailable
where party or counsel uses opportunity "to gratify private
malice by uttering slanderous expressions . . . which have no
relation to the cause or subject matter of the inquiry"). Even
when broadly considered, the statements and conduct alleged in
the complaint had no "reasonable relation or reference to the
subject of inquiry" and could not "possibly be pertinent" to the
ongoing litigation or the permit process and, therefore, were
outside the scope of the litigation privilege. Stem II, supra,
quoting Aborn v. Lipson, 357 Mass. 71, 73 (1970).
The analysis in Stem II remains apt to the facts presented
to the jury and, therefore, constitutes the law of the case.
Under the law of the case doctrine, we will not "reconsider
questions decided upon an earlier appeal in the same case."
King v. Driscoll, 424 Mass. 1, 8 (1996), quoting Peterson v.
Hopson, 306 Mass. 597, 599 (1940). "An already decided issue
should not be reopened 'unless the evidence on a subsequent
[proceeding] was substantially different, controlling authority
has since made a contrary decision of the law applicable to such
issues, or the decision was clearly erroneous and would work a
manifest injustice.'" Kitras, 474 Mass. at 146, quoting King,
16
supra. None of those circumstances are present here -- no
controlling authority has since made a contrary decision of law
applicable to the facts adduced at trial, and the decision was
not clearly erroneous. Further, although the defendants argue
that "nearly all those facts [alleged in the complaint] and
additional facts were presented to this jury," they have not
identified any additional fact at trial that would have yielded
a different result than in Stem II.
Regardless, even if the decision in Stem II did not
establish the law of this case, we conclude that the defendants'
statements and conduct in totality are not protected by the
privilege. As noted in Stem II, the defendants were acting as
"individuals," not attorneys.15 Where the litigation privilege
pertains to nonattorney parties, it allows them to make
"communications preliminary to litigation," Sriberg v. Raymond,
370 Mass. 105, 109 (1976), and "to testify without fear of civil
liability," Bassichis, 490 Mass. at 152, in connection with a
judicial proceeding. "The purpose of the litigation privilege
is twofold: to encourage 'zealous advocacy' by attorneys and to
15Importantly, Bassichis noted that the litigation privilege would not completely shield an attorney from wrongdoing, as other remedies -- such as court room sanctions, contempt proceedings, and Board of Bar Overseer disciplinary proceedings for violations of the rules of professional responsibility -- exist "to discourage and sanction attorney misconduct." Bassichis, 490 Mass. at 153.
17
promote 'full disclosure' by witnesses, without the fear of
civil liability." Mackie v. Rouse-Weir, 495 Mass. 252, 261
(2025), quoting Bassichis, supra at 151-152. See, e.g., Mackie,
supra at 264-265 (extending privilege to nonattorney's reports
prepared in anticipation of hearing); Aborn, 357 Mass. at 72-73
(litigation privilege shielded nonattorney witness for
defamatory statements about plaintiff made in testimony given at
hearing); Mezullo v. Maletz, 331 Mass. 233, 236-237 (1954)
(litigation privilege shielded nonattorney witness for
declarations made in commitment proceedings). For example, a
nonattorney's complaint in a court of proper jurisdiction and
words spoken in that court constitute words "spoken in the
course of judicial proceedings, and being pertinent to the
matter in hearing, [a]re absolutely privileged." Laing v.
Mitten, 185 Mass. 233, 235 (1904). As relevant here, judicial
proceedings include sworn testimony before a legislative
committee. See Sheppard v. Bryant, 191 Mass. 591, 593 (1906).
Under this lens, there would be no civil liability for the
defendants' statements, even if made in bad faith and with
malice, in their Land Court lawsuits and their testimony at the
public hearing on the special permit; however, the bulk of their
conduct forming the bases for the plaintiffs' claims occurred
not within a judicial proceeding or preliminary to litigation,
but were demands purposefully relayed down darkened hallways, in
18
Pineau's driveway at her residence, at coffee shops, and at
Stem's property without invitation to effect relief to which the
defendants would not be entitled under any litigation presently
occurring or plausibly considered.16
Moreover, the defendants' statements and conduct were
unrelated to their Land Court litigation or the special permit
proceedings. The defendants' combined statements and conduct --which included, among other things, threatening to file a RICO
lawsuit when they took no steps toward actually filing (and
which, if filed, would not have yielded use of the plaintiffs'
deck as relief), threatening to "destroy" Pineau financially and
to take her home, telling other members of the community that
Pineau owed them $30,000 when she did not, and demanding payment
for and the use of a deck built prior to Stem's lease --exceeded the scope of the litigation privilege as they were all
wholly unrelated to either judicial proceeding. See Gillette
Co., 91 Mass. App. Ct. at 141 (litigation privilege did not
attach to party's "sending letters threatening a baseless
lawsuit with the knowledge that [recipient] would have to
disclose them to potential partners and investors, and then
16As noted earlier, while the defendants told Pineau's husband that they "were looking to file a RICO lawsuit" against the plaintiffs, the defendants did not file such a lawsuit. Additionally, they made no mention of considering such a lawsuit in their brief or in their testimony at trial.
19
actually filing a baseless lawsuit, all as a means to prevent
[recipient] from competing in the . . . market").
b. MCRA and defamation claims. Contrary to the
defendants' arguments, the jury could have reasonably found in
favor of Stem on the MCRA claim as against Jennings, and in
favor of Pineau on the defamation claim as against both
defendants. It follows that the judge correctly denied the
motions for judgment notwithstanding the verdict or for a new
trial on these claims.
i. MCRA. The defendants claim that the MCRA verdict was
inconsistent and contrary to the evidence at trial because the
jury returned a verdict for only Stem, not Pineau, on the MCRA
claim, and not for Stem on any other claims. First, this claim
is waived, as the defendants did not timely raise it before the
jury were discharged. Where a party "contends that the jury
were confused and their verdict was inconsistent with the
uncontroverted evidence," that "party must request the judge to
instruct the jury to reconsider their verdict before they are
discharged and when there is time to correct any inconsistency."
Kuwaiti Danish Computer Co. v. Digital Equip. Corp., 438 Mass.
459, 466 (2003). "Failure to make such a timely request
constitutes a waiver of any challenge to the verdict on the
ground that it is inconsistent." Id.
20
Second, even if the claim was not waived, the jury could
have reasonably found that Jennings, through the use of threats,
intimidation, or coercion against Pineau as the sole agent of
Stem, interfered with, or attempted to interfere with, Stem's
exercise or enjoyment of its rights to seek a special permit and
use and enjoy the property. A violation of the MCRA requires
the plaintiff to prove "that (1) his exercise or enjoyment of
rights secured by the Constitution or laws of either the United
States or of the Commonwealth, (2) has been interfered with, or
attempted to be interfered with, and (3) that the interference
or attempted interference was by 'threats, intimidation or
coercion.'" Haufler v. Zotos, 446 Mass. 489, 504 (2006),
quoting Bally v. Northeastern Univ., 403 Mass. 713, 717 (1989).
The "right to use and enjoy one's own property is
constitutionally secured." Haufler, supra. That includes the
right to seek the issuance of a permit for use of property, even
if there is no right that a permit issue. See Kennie v. Natural
Resource Dep't of Dennis, 451 Mass. 754, 762 (2008).
The jury heard testimony from Pineau, her husband, and
another business owner that Jennings repeatedly demanded money
from Pineau as well as use of the deck17 and, when given neither,
17Incidentally, the jury heard testimony that, had the plaintiffs granted Jennings the use of their deck, the plaintiffs likely would not have been successful in obtaining their licensing as the Cannabis Control Commission was concerned
21
Jennings said that he would do everything he could to "destroy"
Pineau and put her through "hell." Pineau also testified that
Stem's opening was beset by delays from unexpected safety
inspections prompted by calls from the defendants. All acts
directed at Pineau as the sole manager and member (i.e., agent)
of Stem necessarily affected Stem, just as Stem's right to
pursue the permit and use the property as it chose necessarily
affected Pineau. As Stem could "only act through its agent[],"
Pineau, Jennings's actions against Pineau deprived Stem of the
use of its property. See Sunrise Props., Inc. v. Bacon, Wilson,
Ratner, Cohen, Salvage, Fialky & Fitzgerald, P.C., 425 Mass. 63,
69 (1997). Cf. Merrimack College v. KPMG LLP, 480 Mass. 614,
615 (2018) ("traditional principles of agency law . . . impute
the wrongdoing of those agents to the plaintiff organization");
Sunrise Props., Inc., supra at 67 ("under ordinary agency
principles, [agent's] knowledge is imputed to" corporation).
Accordingly, based on the evidence, the jury could have found
that the actions were not directed at Pineau individually, but
at her as Stem's agent. We also note that, under the MCRA, Stem
had standing to pursue (and did pursue) remedies for such
interference with its property rights by Jennings. See Pheasant
about the building's security, and another business's use of the deck would have presented a significant security risk.
22
Ridge Assocs. Ltd. Partnership v. Burlington, 399 Mass. 771,
780-781 (1987) ("no doubt" that plaintiffs, which included
corporations and limited partnership, had right to seek permit,
and that right was interfered with by defendant under MCRA).
See also Howcroft v. Peabody, 51 Mass. App. Ct. 573, 592-593
(2001), quoting G. L. c. 4, § 7, Twenty-third (under MCRA,
"person" includes "corporations, societies, associations and
partnerships"). Accordingly, the jury could have reasonably
concluded that Jennings made threatening statements to Pineau,
acting as an agent of Stem, in an attempt to prevent Stem from
opening and enjoying the use of its property.
ii. Defamation. The evidence also supports the jury's
findings that the defendants made statements concerning Pineau
to a third party, those statements could damage Pineau's
reputation in the community, the defendants were at fault in
making the statements, and the statements caused Pineau economic
loss. See Ravnikar v. Bogojavlensky, 438 Mass. 627, 629-630
(2003). There is no merit to the defendants' argument that the
verdict for Pineau was erroneous as Pineau was not the real
party in interest because Stem was the lessee of the property
and the applicant for the special permit. See Sunrise Props.,
Inc., 425 Mass. at 69. Pineau testified about the economic
losses she incurred as the owner of Stem and about the harm to
her business reputation. Additionally, whether the statements
23
at issue were opinion rather than fact was "a question [for the
jury,] if the statement[s] reasonably can be understood both
ways" as the defendants argue. King v. Globe Newspaper Co., 400
Mass. 705, 709 (1987), cert. denied, 485 U.S. 940 and 485 U.S.
962 (1988). Adequate evidence was produced to allow the jury to
determine that the statements that Pineau owed Brooks and
Jennings $30,000 were statements of fact, that they were false,
and that they prejudiced Pineau's business. This was supported
by Pineau's testimony concerning Stem's delayed opening and loss
of revenue during that delay as well as her husband's testimony
that he was questioned by prominent community members about the
alleged debt.
c. Civil conspiracy. The defendants correctly argue that,
based on the verdict and jury instructions, the jury could not
have reasonably found "an underlying tortious act" to support
the conspiracy judgment. Bartle v. Berry, 80 Mass. App. Ct.
372, 383-384 (2011). Over the defendants' objections, the judge
instructed the jury that the underlying tort was "to extort
$30,000 from Caroline Pineau." When the jury later asked the
judge for "the formal definition of 'extortion,'" the judge
answered, relying on language in Stem I, 99 Mass. App. Ct. at
634, that extortion "is coercion by improper means that is
designed to reap an economic reward." Had the jury instruction
additionally identified another recognized tort as the possible
24
basis of the conspiracy claim, such as one outlined in the MCRA
or defamation claims and on which the jury found in favor of the
plaintiffs, the verdict could have stood; however, given the
instruction, the judgment as to the civil conspiracy claim
against the defendants cannot stand.
While the defendants are correct that "extortion" is not a
recognized civil tort in the Commonwealth, see Leventhal v.
Dockser, 361 Mass. 894, 894 (1972), we do not necessarily agree
with the defendants' argument that the judge erroneously
instructed the jury as to the underlying claim of "extortion,"
where the so-called extortion here could constitute tortious
conduct under G. L. c. 93A, which the plaintiffs claimed. In
Stem I, 99 Mass. App. Ct. at 634, we described "extortion --coercion by improper means that is designed to reap an economic
reward" -- as actionable "in the business context . . . under
c. 93A." As we noted above in note 3, however, the plaintiffs'
tort claim for unfair and deceptive trade practices under G. L.
c. 93A failed. Thus, "the plaintiffs' claims that the
defendant[s] . . . conspired against them necessarily fails."
Bartle, 80 Mass. App. Ct. at 384. The instruction was not
necessarily error standing alone; the error was that the
instruction tied the verdict on the conspiracy claim to an
underlying tort for which the jury found the defendants had no
liability.
25
3. Attorney's fees. We review an award of attorney's fees
for abuse of discretion and will reverse the judge's decision
"only if it is clearly erroneous." WHTR Real Estate Ltd.
Partnership v. Venture Distrib., Inc., 63 Mass. App. Ct. 229,
235 (2005). As discussed below, Stem's motion for an award of
attorney's fees was timely, especially where the defendants were
on notice of the request for the fees, some of which were
statutory. Additionally, because the plaintiffs' claims were so
intertwined, we do not consider the judge's attorney's fee award
unreasonable.
a. Timely filed. The defendants argue that Stem's motion
for attorney's fees and costs pursuant to the MCRA fell under
Mass. R. Civ. P. 59 (e), 365 Mass. 827 (1974), and was thus time
barred. We disagree.18 There is no specific procedural rule in
Massachusetts that addresses the timely filing of fee petitions
in the trial court. See Society of Jesus of New England v.
Boston Landmarks Comm'n, 411 Mass. 754, 756-757 (1992) ("The
determination of timeliness is . . . within the discretion of
18 The defendants also argue that "a prevailing party's claim for attorney's fees can only be and must be resolved before the entry" of final judgment and be part of the final judgment as per Mass. R. Civ. P. 54 (a), 365 Mass. 820 (1974). As reflected on the docket, the fee award is not a "second judgment" as the defendants argue but instead an order collateral to the corrected judgment and, therefore, not governed by this rule. See Vermont Mut. Ins. Co. v. Poirier, 490 Mass. 161, 169 (2022).
26
this court"). In fact, comparing the analogous Federal rule,
Fed. R. Civ. P 59(e), the language of Federal and Massachusetts
rules 59 (e) are substantially the same. See Anyaosah v. Copart
of Conn., Inc., 106 Mass. App. Ct. 213, 216 (2025) ("In
construing our rules of civil procedure, we are guided by
judicial interpretations of the cognate Federal rule absent
compelling reasons to the contrary or significant differences in
content" [citation omitted]). The United States Supreme Court
has held that a "motion for attorney's fees [in a civil rights
action] is unlike a motion to alter or amend a judgment," and
"therefore, not governed by the provisions of [Federal] Rule
59(e)" because the award petition "does not imply a change in
the judgment, but merely seeks what is due because of the
judgment" (citation omitted). White v. New Hampshire Dep't of
Employment Sec., 455 U.S. 445, 452 (1982). Further, the Supreme
Judicial Court has held that a motion for statutory attorney's
fees is not a motion to alter or amend the judgment. See Dugan
v. Selectmen of Dartmouth, 413 Mass. 641, 643 (1992) (discussing
indemnification under G. L. c. 258, § 13).
The motion for attorney's fees was timely under these
circumstances. The corrected judgment ultimately entered on
December 23, 2024. Stem filed notice of its intent to request
attorney's fees under the MCRA on January 10, 2025, and filed
its motion for award of fees shortly thereafter on January 21,
27
2025. The corrected order awarding fees issued on May 8, 2025.
We do not think that the defendants have suffered unfair
surprise or prejudice, because the MCRA placed the defendants on
notice that fees "shall" be awarded, G. L. c. 12, § 11I, and the
plaintiffs pursued attorney's fees and costs at multiple stages
of the litigation. On these facts, Stem's motion for attorney's
fees, filed within thirty days from entry of the judgment, was
reasonable. See Dugan, 413 Mass. at 642-643 (motion for
attorney's fees not untimely when filed six months after
judgment). As we conclude that no judicial or procedural rule
governs the timeliness of the fee petition at issue, the filing
date here was not unreasonable given the statutory basis for a
fee award along with the complexities and procedural history of
this case.
b. Award amount. The defendants' argument that the fees
awarded here, $178,743.25, were "not only preposterous" but
"completely unwarranted, unjustified and an abuse of
discretion," is belied by the record. "[M]uch discretion must
be allowed to the trial judges, and rarely should they be
reversed if there is assurance that they have dwelt on the
relevant considerations and have stayed within permissible
evidentiary bounds." Robbins v. Robbins, 19 Mass. App. Ct. 538,
543 (1985), S.C., 22 Mass. App. Ct. 982 (1986). The trial
judge's "award [of attorney's fees] is presumed to be right and
28
will not be disturbed without a showing that the fee is
excessive." Keville v. McKeever, 42 Mass. App. Ct. 140, 155-156
(1997). On this record, the judge acted reasonably within her
discretion in awarding the fees.
The jury awarded $7,500 damages to Stem against Jennings on
the MCRA claim, $90,000 to Pineau against both defendants on the
conspiracy claim, and $15,000 to Pineau against each defendant
on the defamation claim. Stem sought to recover all its fees
incurred in the entire case for all plaintiffs and for all
counts, claiming that it was impossible to separate Stem's fees
from Pineau's as well as the fees incurred in litigating the
various claims. On appeal, Stem maintains that even though it
did not prevail on all claims, the ones that failed were
"sufficiently interconnected" with the MCRA claim and arose out
of "a common nucleus of facts." See Wodinsky v. Kettenbach, 86
Mass. App. Ct. 825, 838-839 (2015) (no abuse of discretion in
awarding attorney's fees even though plaintiffs "did not prevail
on all of their claims," because "the claims on which [they]
were not successful were 'sufficiently interconnected' with the
claims on which they did prevail" [citation omitted]). We agree
and note that it is settled law that fee awards need not always
be proportional to the damages recovered. See, e.g., Hidalgo v.
Watch City Constr. Corp., 497 Mass. 319, 324-325 (2026) (proper
question on appeal of attorney's fee award is whether attorney's
29
work, "not the monetary value of the . . . claims, warranted
[the] fees"); Killeen v. Westban Hotel Venture, LP, 69 Mass.
App. Ct. 784, 792 (2007) ("fee award need not be proportionate
to the damages recovered" where verdict serves important public
purpose).
The judge was "in the best position to determine how much
time was reasonably spent on [the] case, and the fair value of
the attorney's services." Fontaine v. Ebtec Corp., 415 Mass.
309, 324 (1993). She outlined the case's extensive procedural
history, which she concluded was "particularly relevant to
resolution of" the attorney's fee petition, as well as
diligently explained the basis of her decision. While the
"results obtained by a claimant may affect the determination of
attorney's fees," School Comm. of Norton v. Massachusetts Comm'n
Against Discrimination, 63 Mass. App. Ct. 839, 853 (2005), this
is not the only factor. A judge may permissibly consider
several factors, none of which is solely determinative,
including
"the nature of the case and the issues presented, the time
and labor required, the amount of damages involved, the
result obtained, the experience, reputation and ability of
the attorney, the usual price charged for similar services
by other attorneys in the same area, and the amount of
awards in similar cases."
Berman v. Linnane, 434 Mass. 301, 303 (2001), quoting Linthicum
v. Archambault, 379 Mass. 381, 388-389 (1979).
30
Furthermore, "a significant attorney's fee may be upheld
because of the importance of providing an incentive to attorneys
to represent litigants . . . who seek to vindicate . . . rights
but whose claim may not result in substantial monetary
compensation and because of the deterrent impact of such
litigation" (quotation and citation omitted). School Comm. of
Norton, 63 Mass. App. Ct. at 854. See Hidalgo, 497 Mass. at 326
(reducing fee award based on damages "impermissibly minimizes
the importance of such claims and risks disincentivizing lawyers
from taking . . . cases").
Here, the judge, who also presided over the trial, noted
the case's five-year history and that the defendants
"aggressively litigated this case, filing voluminous motions,
motions to reconsider denials of those motions, and then,
appeals of those denials, in many instances repeatedly raising
issues that were previously resolved by the court," which,
"undoubtedly, contributed significantly to the complexity and
amount of time the [p]laintiffs' counsel spent litigating this
matter." We agree and therefore affirm the award of attorney's
fees.
Although we vacate so much of the corrected judgment that
relates to civil conspiracy, this does not require a reduction
in the attorney's fee award. First, the defendants have made no
arguments on appeal that the attorney's fee award should be
31
reduced in the event of a reversal on one of the claims, so we
need not decide the issue. Second, we note that a judge is not
required to reduce an award for the result obtained. See J.P.
Constr. Co. v. Stateside Bldrs., Inc., 45 Mass. App. Ct. 920,
921 (1998) ("we reject the defendants' argument that the award
of reasonable attorney's fees must be proportioned strictly to
the award obtained"). See also Hidalgo, 497 Mass. at 320 (error
to reduce attorney's fee award because it "was disproportionate
to the relatively low amount of damages at stake"); Sanitoy,
Inc. v. Ilco Unican Corp., 413 Mass. 627, 631-632 (1992)
(reasonable attorney's fees not limited to "percentage of fees
equal to percentage of [amounts] recovered").
c. Appellate attorney's fees. Finally, the plaintiffs'
request for appellate attorney's fees is denied. A party must
request appellate attorney's fees, and the basis for such, in
their brief. See Mass. R. A. P. 16 (a) (10), as appearing in
481 Mass. 1628 (2019). The plaintiffs' request for appellate
attorney's fees in their brief was based on the alleged
frivolousness of the defendants' appeal. The defendants,
however, have raised at least one significant issue on direct
appeal, which defeats the plaintiffs' request for appellate
attorney's fees under Mass. R. A. P. 25, as appearing in 481
Mass. 1654 (2019), and G. L. c. 231, § 6F, as the appeal was not
entirely frivolous. The plaintiffs have not requested fees
32
under any other authority, and we decline to exercise our
discretion to award them. See Fabre v. Walton, 441 Mass. 9, 10
(2004); Haser v. Wright, 65 Mass. App. Ct. 903, 903 (2005).
Conclusion. For the reasons stated, we reverse so much of
the order dated February 21, 2025, that denied the motion for
judgment notwithstanding the verdict on the claim for civil
conspiracy. The corrected judgment on that claim entered in
favor of Pineau is vacated, and the case is remanded for entry
of judgment for the defendants on the claim for civil conspiracy
as well as recalculation of damages. In all other respects, the
corrected judgment and the order dated February 21, 2025, are
affirmed.
So ordered.