Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Van Liew v. Eliopoulos

Appeals Court of Massachusetts, Middlesex

August 25, 2017

ROLAND VAN LIEW
v.
PHILIP ELIOPOULOS; HANDS ON TECHNOLOGY TRANSFER, INC., third-party defendant.

          Heard: January 5, 2017.

         Civil action commenced in the Superior Court Department on January 3, 2011.

         The case was tried before Kenneth V. Desmond, Jr., J., and a motion for a new trial or in the alternative for remittitur was heard by him.

          Brian C. Newberry for Roland Van Liew & another.

          David H. Rich for the defendant.

          Present: Green, Meade, & Blake, JJ.

          BLAKE, J.

         In 2010, a bitter feud erupted between Chelmsford residents Roland Van Liew and Philip Eliopoulos. Van Liew commenced the dispute by accusing Eliopoulos, a local selectman, of shady political dealings in his work as a real estate attorney. After Eliopoulos responded publicly to the allegations, Van Liew filed in Superior Court this defamation action against him. Eliopoulos counterclaimed, alleging defamation on the part of Van Liew, and impleaded Van Liew's company, Hands on Technology Transfer, Inc. (collectively, Van Liew). A jury subsequently found Van Liew liable for making twenty-nine defamatory statements, and awarded $2.9 million in damages. They found no wrongdoing on the part of Eliopoulos. The judge denied Van Liew's posttrial motions on the counterclaim verdict, [1] and he now appeals, [2] challenging the proof of defamation on the twenty-nine statements. He also claims that the judge committed evidentiary errors and that the excessive damages awarded require remittitur. We affirm.

         Background.

         1. Real estate development in Chelmsford.

         In the summer of 2008, Chelmsford real estate broker and developer Michael Eliopoulos, Philip's[3] father, approached Eastern Bank about a historic home situated on a parcel of land it owned in Chelmsford center. Michael then negotiated the sale of an undeveloped portion of the property with Thomas Dunn, an employee of Eastern Bank. The purchase price was $480, 000. Philip and his law firm reviewed draft agreements and served as real estate counsel. The sale closed on June 17, 2009, after which the 2.41-acre property became known as 9 North Street (the property).[4] During the real estate negotiations, until April of 2009, when his term expired, Philip was a member of the board of selectmen (board) of Chelmsford. He attended his final meeting on March 23, 2009.

         In 2007, prior to Michael's offer to purchase the property, the Chelmsford fire department and department of public works facility study committee (the committee) was considering options for a new fire station headquarters. One option was rebuilding and expanding the Chelmsford center fire station, which was located on Chelmsford-owned land adjacent to the property. On August 7, 2007, the committee voted to narrow their primary and alternative site selections to two choices, neither of which was the center fire station or the property. Accordingly, Philip and the other members of the board understood that, as of September of 2007, the committee no longer was interested in the possible purchase of the property. Ultimately, the committee identified a location on Wilson Street for a new fire department headquarters.[5]

         Beginning in April, 2009, after the expiration of his board term, Philip assisted Michael in his development of the property. The plan called for the rehabilitation of the historic house, and the construction of a new four-unit, family-owned office building. During the nine-month permitting process, Philip represented Michael's newly formed corporation, Epsilon Group, LLC (Epsilon). After a series of public hearings and changes to the plan, a number of local boards and committees approved the project, including the historic district commission, the conservation commission, and the planning board of Chelmsford. On August 23, 2010, the board determined that the project did not violate a historic preservation restriction (restriction) that encumbered the property. Scrutiny of the project was careful and deliberate due to the prominence of the Eliopoulos family in Chelmsford, as well as the vocal opposition to the project.

         2. Feud begins.

         Van Liew, a successful local business owner, was one of the vocal opponents of the project. Commencing in early 2010, Van Liew, through several organizations controlled by him, [6] widely published statements criticizing Philip for engaging in self-dealing and conflicts of interest at the expense of Chelmsford. He flooded Chelmsford residents with his messaging, accusing Philip and other Chelmsford officials of violating State and local ethics laws and of violating the restriction. The publications conjured up unsavory images of shady "back room" dealing at Chelmsford town hall, influence peddling, and fixed governmental proceedings. Van Liew's statements were published and repeated across a variety of media outlets: mass electronic mail messages (e-mails), letters, a digital video disc (DVD) sent to thousands of Chelmsford residents, Web site postings, a glossy newsletter entitled "Why Perjury Matters, " lawn signs, bumper stickers, letters to newspapers, automated telephone calls, and video recordings of conferences and meetings. Van Liew spent between $1 and $2 million to spread his messaging. In early August, 2010, Philip attempted to defend himself in an open letter sent to every Chelmsford resident, at his own expense.[7]

         3. No wrongdoing found by State agencies.

         In late 2009, Philip voluntarily subjected himself to an investigation by the State Ethics Commission (commission). Notwithstanding the multiple complaints lodged against him by Van Liew and his associates, the commission did not pursue enforcement proceedings against Philip, and closed the case on December 1, 2011. A similar investigation of the Chelmsford town manager, Paul Cohen, reached the same result. Likewise, the Board of Bar Overseers (BBO) took no action in response to Van Liew's complaints to that agency. The office of the Attorney General also declined to investigate Philip. No finding ever was made that the permitting process or the project was illegal or violated the restriction.

         4. Present action.

         On January 3, 2011, Van Liew filed the present action, with Philip's counterclaim following shortly thereafter. Over the course of seventeen days in February and March, 2015, the case was tried to a jury. At the close of the case, the jury were given a special verdict form, which properly defined the requirements of defamation involving a public official and, as to the counterclaim, asked whether Philip had proven all of the required elements of his claims on each of thirty-nine statements.[8] The jury awarded $2.9 million in damages to Philip on twenty-nine of those statements. Van Liew moved for judgment notwithstanding the verdict and a new trial on the counterclaim verdict and a remittitur on the damages award, [9] claiming that the judge had hampered his ability to present his case and improperly admitted prejudicial evidence, the proof of defamation was legally insufficient, and the damages awarded were excessive. The judge denied all of the posttrial motions, and Van Liew now raises the same claims on appeal. Further facts, including the defamatory statements at issue, will be set forth infra.

         Discussion.

         1. Evidentiary claims.

         Due to concerns over the length of the trial, the judge imposed a preliminary time limit on Van Liew's case-in-chief, which the judge extended several times.[10] Van Liew nevertheless challenges the time limits placed on his case-in-chief. There was no abuse of discretion, considering Van Liew's severe underestimation of the time required to examine his witnesses, and juror concern over the length of the trial.[11] See Clark v. Clark, 47 Mass.App.Ct. 737, 746 (1999) ("A judge, as the guiding spirit and controlling mind of the trial, should be able to set reasonable limits on the length of a trial. This includes the right to set reasonable limits on the length of the direct and cross-examination of witnesses").

         Van Liew also maintains that the following evidence should have been excluded as unduly prejudicial: (1) evidence related to his arrest and prosecution for attempting to poison his neighbor's dog; (2) evidence related to commission enforcement proceedings against one of his attorneys, Richard McClure; and (3) references to his anti-Vatican and population control opinions.

         As to the dog incident, the evidence provided a cause of Van Liew's claimed emotional distress other than Philip's statements.[12] Van Liew also opened the door to impeachment by testifying that he was perceived as a "good neighbor." See Mass. G. Evid. § 608 (2017). The evidence about McClure likewise was not substantially more prejudicial than probative. See Mass. G. Evid. § 403 (2017). Even after the commission closed the case on Philip, Van Liew continued to publish statements about Philip's ethical violations based in part on McClure's legal advice. The commission investigation of McClure was probative of Van Liew's recklessness in continuing to rely on McClure's opinion, even after learning of the commission charges against him.[13] See Murphy v. Boston Herald, Inc., 449 Mass. 42, 49 (2007), citing St. Amant v. Thompson, 390 U.S. 727, 730-732 (1968) (discussing reckless reliance on third-party opinion in defamation case) . In each instance, the judge also gave limiting instructions on the proper use of the evidence to the jury, who were presumed to have followed these instructions. See Gath v. M/A-Com, Inc., 440 Mass. 482, 493 (2003).

         Finally, Van Liew did not preserve his objection to the introduction of evidence about his opinions on the Vatican and population control.[14] Van Liew's motion in limine to exclude all such evidence initially was allowed. The bases for the motion were relevancy and that any probative value was outweighed by the danger of unfair prejudice. Thereafter, Philip sought to introduce the document contending that Van Liew opened the door to the admission of the evidence. Van Liew's counsel objected on the basis of "foundation, relevance, hearsay, " which the judge overruled. Counsel's objection on the basis of prejudice the following day was untimely. See Matsuyama v. Birnbaum, 452 Mass. 1, 35 (2008). Even if the issue had been preserved, we agree that Van Liew also opened the door to this evidence.[15]

         2. Proof of defamation.

         a. Elements and standard of review.

         To prove defamation, a plaintiff must establish that "the defendant was at fault for the publication of a false statement . . . regarding the plaintiff, capable of damaging the plaintiff's reputation in the community, which either caused economic loss or is actionable without proof of economic loss." White v. Blue Cross & Blue Shield of Mass., Inc., 442 Mass. 64, 66 (2004), citing Ravnikar v. Bogoj avlensky, 438 Mass. 627, 629-630 (2003). See Edwards v. Commonwealth, 477 Mass. 254, 262-263 (2017). If a challenged statement is plainly an opinion or subjective view, rather than a statement of fact, it is not actionable as a matter of law. Scholz v. Delp, 473 Mass. 242, 251 (2015). "In determining whether an assertion is a statement of fact or opinion, 'the test to be applied . . . requires that the court examine the statement in its totality in the context in which it was uttered or published. The court must consider all the words used, not merely a particular phrase or sentence. In addition, the court must give weight to cautionary terms used by the person publishing the statement. Finally, the court must consider all of the circumstances surrounding the statement, including the medium by which the statement is disseminated and the audience to which it is published.'" Downey v. Chutehall Constr. Co., 86 Mass.App.Ct. 660, 663-664 (2014), quoting from Cole v. Westinghouse Bdcst. Co., 386 Mass. 303, 309, cert, denied, 459 U.S. 1037 (1982).[16]

         Because it is undisputed that Philip was a public official at the time the statements were made, [17] in addition to proving the common-law elements of defamation, Federal constitutional law also requires that he prove, by clear and convincing evidence, that Van Liew published the statements with actual malice. See New York Times Co. v. Sullivan, 376 U.S. 254, 279-280 (1964); King v. Globe Newspaper Co., 400 Mass. 705, 719 (1987), cert, denied, 485 U.S. 962 (1988).

         In Murphy, 449 Mass. at 48, the Supreme Judicial Court set out the constitutional principles involved in a defamation case implicating a public official:

"The First Amendment to the United States Constitution sets clear limits on the application of defamation law with respect to any factual statement published in the news media about a public official or public figure, . . . even when that statement is shown to be false and defamatory. In [New York Times Co., 376 U.S. at 279-280], the United States Supreme Court held that, in such cases, the First Amendment requires that the plaintiff must prove, by clear and convincing evidence, that the defendant published the false and defamatory material with '"actual malice" --that is, with knowledge that it was false or with reckless disregard of whether it was false or not.'"

         A finding of "reckless disregard" requires proof that the publisher acted with a "high degree of awareness of [its] probable falsity" or, in other words, "entertained serious doubts as to the truth of his publication." Murphy, supra at 43, 48 (citation omitted). An inference of actual malice may be drawn from circumstantial evidence. Id. at 57-58.

         An appellate court, when faced with a defamation case, must independently review the record as to each defamatory statement to make certain that it supports the jury's finding of actual malice. Id. at 49, citing Bose Corp. v.Consumers Union ofU.S., Inc., 466 U.S. 485, 514 & n.31 (1984). In doing so, the court must defer to the jury's assessments of credibility and demeanor. Id. at 50. "The constitutionally required independent examination therefore takes place when, after compiling all of the facts implicitly established by the jury's ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.