This is an overview of a defamation lawsuit filed against Philip Krestedemas by his ex-wife.
An appeal has been filed by Myrtise Kretsedemas (Myrtise) against a judgment that dismissed her first amended complaint. In that complaint, she had filed charges of defamation and intentional infliction of emotional distress against her former husband, Philip Kretsedemas (Philip), as well as against Ievgeniia Zasoba (Zasoba).
Following the anti-strategic litigation against public participation (anti-SLAPP) act, a judge of the Superior Court granted Philip and Zasoba’s special motions to dismiss, which were submitted by the provisions of G. L. c. 231, § 59H ,after the hearing. In her appeal, Myrtise asserts that the judge made a mistake when she dismissed the complaint without first requiring that the plaintiff verify her allegation or otherwise substantiate it with an affidavit. 3) We agree.
We take a look at the decision that the judge made about a special motion to dismiss, which was submitted by the provisions of G. L. c. 231, § 59H, “for an abuse of discretion or error of law.” (Blanchard II) Blanchard v. Steward Carney Hospital, Inc., 483 Massachusetts Law Review, Volume 203, Page 203 (2019). SLAPP actions, which are defined as “lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances,” are eligible for early dismissal through the special motion to dismiss, which is a procedural remedy that is provided by General Laws c. 231, section 59H.
A citation from Blanchard v. Steward Carney Hosp., Inc., 477 Mass. 141, 147 (2017) (Blanchard I) was made in the case of Nyberg v. Wheltle, which was decided by the Massachusetts Appellate Court in 2022. Through the use of a special motion, the act makes it possible for the victim to request that a meritless lawsuit be dismissed as quickly as possible and that the victim’s costs and attorney’s fees be paid promptly. In the case of Vittands v. Sudduth, which was decided in 1996, the Massachusetts Appellate Court ruled 515 and 517.
There are multiple levels of evaluation for a special motion to dismiss. “During the initial phase of the process, a special movant is required to provide evidence that the nonmoving party’s claims are solely founded on the petitioning activities that it has undertaken.” At the number 159, Blanchard I, 477 Mass. For more information, please refer to Duracraft Corporation v. Holmes Productions Corporation, 427 Massachusetts 156, 167-168 (1998).
In the second step, if the special movant can meet the burden that was imposed in the first stage, then the responsibility will be transferred to the party that is not moving. As stated above, Blanchard I. From that point on, the nonmoving party has the potential to win (1) by establishing that the petitioning actions of the special movant, upon which the challenged claim is founded, do not have a reasonable foundation in fact or law, and that the petitioning activities at issue caused [her] injury. “by demonstrating that each challenged claim does not give rise to a ‘SLAPP’ suit,” or (2) “by demonstrating that this is the case.” The citation is at 159-160.
The special motions to dismiss that Philip and Zasoba submitted in this case appear to have been supported by affidavits as well as significant other evidentiary items. These materials include police reports, a 911 call log, and a public records request and answer. When making his decision about the motions, the judge relied on these materials. Nevertheless, none of these materials were included in the appendix that was attached to Myrtise’s account. 4.
The judge decided that Philip and Zasoba had the first burden of proving that Myrtise’s claims originated from Philip and Zasoba’s protected petitioning actions, which included the 911 call and the petition under G. L. c. 209A. This was about the first stage of the process. McLarnon v. Jokisch, 431 Mass. 343, 347 (2000) (filing for abuse protection orders protected under anti-SLAPP statute); Keegan v. Pellerin, 76 Mass. App. Ct. 186, 190 (2010) (reporting suspected criminal activity to police protected petitioning activity) are two cases that illustrate this point. As a result, Myrtise was given the responsibility.
Myrtise was unable to prove either (1) that Philip or Zasoba were involved in “sham” petitioning activity or (2) that her claims were not made largely to chill Philip’s and Zasoba’s protected petitioning activities. The judge reached this conclusion at the second stage of the case. Blanchard I, 477 Mass., pages 159-160, is the source.
When the judge reached this conclusion, she pointed out that Myrtise had not only failed to present any evidence that could be considered admissible, which would have raised an inference that Philip and Zasoba’s showing was in any way inaccurate, but that on the record that was before the judge, there was an overwhelming inference that Myrtise intended to suppress legitimate petitioning activity.
Myrtise, for instance, did not provide any proof to demonstrate that the 911 call (which, contrary to what Myrtise claims in her first revised complaint, was made by Philip and not Zasoba) was devoid of any factual or legal substance.
On the other side, it appears that Philip and Zasoba presented affidavits and main documents to demonstrate that the call was justified. One of these papers was an email message in which Myrtise admitted that she had smashed Philip’s phone. Also, the judge correctly determined that Myrtise did not provide any evidence that she had been injured.
Even if the nonmoving party is unable to provide evidence that the moving party engaged in sham petitioning, they still can defeat a special motion to dismiss the case by demonstrating that the suit (1) is “colorable” and (2) “was not brought primarily to chill the special movant’s legitimate exercise of its right to petition, i.e., that it was not retaliatory” (quotations and alteration omitted). According to Blanchard II, 483 Massachusetts at 204, Blanchard I, 477 Massachusetts at 159-161 is cited.
Neither Myrtise’s claim of defamation nor her claim of deliberate infliction of emotional distress may be considered colorable, according to the judge’s decision. No 911 call in which the alleged defamatory words were made was ever made under Zasoba’s name or phone number, according to the evidence, which was not included in the record of the appeal. This evidence was not included in the record.
No evidence that contradicted Myrtise’s position was presented. Because of this, the charge of defamation that Zasoba has made against him is not colorable. Due to the fact that Myrtise admits that she was the one who shattered Philip’s phone and asserts that she was not armed at the time of the occurrence, Philip’s comments to the 911 operator were not incorrect.
In light of the fact that Myrtise is unable to provide evidence that Philip made a false statement, her claim of defamation against him is not considerable. Kilnapp Enters., Inc. v. Massachusetts State Automobile Dealers Association, 89 Mass. App. Ct. 212, 217-218 (2016) is the case that you should look at.
When it comes to the claim of intentional infliction of emotional distress, Zasoba would not have been able to cause Myrtise to experience emotional distress if she had not called 911. Furthermore, Philip’s decision to call 911 in order to document the incident on December 10, 2020 cannot be described as “extreme and outrageous,” “beyond all possible bounds of decency,” or “utterly intolerable in a civilised community.” See Agis v. Howard Johnson Co., 371 Massachusetts 144-145 (1976) for more information. As the judge correctly determined, it was acceptable for Philip to call the police for assistance after a verbal confrontation with his spouse, during which she had begun damaging and smashing things, including his phone. The judge’s decision was correct. In light of these considerations, Myrtise’s argument that Philip and Zasoba intentionally caused her emotional suffering is not a colorable one. 5.
In conclusion, Zasoba has submitted a request for attorney’s costs in the appeal. Please refer to the General Laws chapter 231, section 59H, as well as the Massachusetts Revised Administrative Procedure 25 as it is cited in the 2019 edition of the Massachusetts Statutes. Yes, the request can be granted. Zasoba has the ability to submit an application together with the necessary supporting materials within fourteen days of the issuing of the rescript of this decision. This is in accordance with the method that was outlined in Fabre v. Walton, which was published in 2004 in the Massachusetts Supreme Court. In the following fourteen days, Myrtise will have the opportunity to respond.
The judgement that rejects the first amended complaint has been upheld.
The Footnotes
3. Myrtise also makes a tangential complaint, stating that she ought to have been allowed to receive discovery to oppose the special motions to dismiss. On the other hand, the statute that prohibits the use of SLAPP states that “all discovery proceedings shall be stayed upon the filing of the special motion under this section; provided, however, that the court, on motion and after a hearing and for good cause shown, may order that specified discovery be conducted.” Section 59H of the General Laws, Chapter 231.
Even though Myrtise did not ask the judge to allow her “specified discovery,” she never did. The claim is considered to be waived in this posture. As an additional point of interest, the statute that prohibits the use of SLAPP was enacted to offer a “quick remedy against the time and cost of otherwise protracted litigation” (quotation and source absent). In the case of Cardno ChemRisk, LLC versus Foytlin, 476 Massachusetts 479, 483, 484 (2017). It would be counterproductive to this objective to permit this matter to move to the discovery stage at this stage, unless there is a compelling reason to do so.
4. The appellant is the one who is responsible for providing a record that substantiates the assertions that she is making in her appeal. By citing Arch Medical Associates v. Bartlett Health Enterprises, Inc., 32 Massachusetts App. Court 404, 406 (1992), the case of Hasouris v. Sorour, 92 Massachusetts App. Court 607, 610 n.4 (2018), was addressed.
For more information, please refer to Mass. R. A. P. 18 (a), which was published in 481 Mass. 1637 (2019), and Mass. R. A. P. 18 (a) (1) (D), which was published in 491 Mass. 1603 (2023). As a result of this, we do not have any factual basis to conclude that the judge abused her discretion by granting the motions. In any case, Myrtise did not argue in the appeal that the steps that Philip and Zasoba claimed to have taken were not protected petitioning activities.
5. The judge’s decision that Myrtise’s primary motivation in initiating her complaint was retaliatory and designed to restrict Philip’s and Zasoba’s petitioning activities is supported by Myrtise’s argument that the judge abused her discretion in making that determination. The information that was shown to the judge seemed to indicate that Myrtise’s decision to file this lawsuit was motivated by her anger over the fact that Philip contacted the police while they were engaged in a verbal dispute. In any case, the judge considered this evidence.
In Massachusetts, cases where a wife raises claims of defamation and intentional infliction of emotional distress (IIED) against her former husband are part of a broader category of intrafamily tort litigation. While specific statistics on such cases are limited, Massachusetts courts have addressed several notable instances, and legal frameworks exist to manage and mitigate these disputes.
Legal Framework and Notable Cases
Defamation and IIED in Divorce Contexts
In Massachusetts, defamation involves the publication of a false statement that injures someone’s reputation. IIED requires conduct that is extreme and outrageous, causing severe emotional distress. Both torts can arise during or after divorce proceedings, especially when one party alleges that the other made harmful statements or engaged in harassing behavior.
Notable Cases:
- Correllas v. Viveiros (1991): The Massachusetts Supreme Judicial Court held that statements made to police during an investigation were absolutely privileged, barring defamation and IIED claims.
- Jeffrey M. Kelso v. Barbara Kelso: A husband filed claims including defamation and IIED against his ex-wife, alleging she made false statements during their divorce. The court dismissed the claims, emphasizing the need for conduct to be “extreme and outrageous” for IIED.
Challenges in Quantifying Cases
Massachusetts does not maintain specific statistics on defamation or IIED claims between former spouses. These cases often fall under broader categories of civil litigation or family law, making it difficult to isolate and quantify them. However, the presence of such cases in appellate decisions indicates that they are not uncommon.
Measures to Address and Reduce Such Cases
Legal Protections and Remedies:
- Harassment Prevention Orders (MGL c. 258E): Individuals can seek court orders to prevent harassment, including behaviors that may constitute IIED.
- Frivolous Litigation Sanctions (MGL c. 231, § 6F): Courts can impose costs on parties who file insubstantial or bad-faith claims, deterring misuse of legal processes.
Alternative Dispute Resolution:
Mediation and counseling services are encouraged to resolve disputes amicably, reducing the likelihood of litigation.
Public Awareness and Education:
Legal aid organizations and bar associations provide resources to educate individuals about their rights and the legal standards for defamation and IIED, promoting informed decision-making.
While defamation and IIED claims between former spouses in Massachusetts present complex legal challenges, existing laws and court precedents provide mechanisms to address and mitigate such disputes. Ongoing efforts in legal education and alternative dispute resolution continue to play a role in reducing the incidence and impact of these cases.
