Posts tagged "1111517"

Ceruolo v. Garcia, et al. (Lawyers Weekly No. 11-115-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030;   16-P-1443                                       Appeals Court   DAVID CERUOLO  vs.  MARTHA GARCIA & another.[1]     No. 16-P-1443.   Essex.     June 5, 2017. – September 7, 2017.   Present:  Sullivan, Henry, & Shin, JJ.     Practice, Civil,  Default, Motion to dismiss.  “Anti-SLAPP” Statute.     Civil action commenced in the Superior Court Department on September 16, 2014.   A special motion to dismiss was heard by Robert A. Cornetta, J., sitting by designation, and a motion to vacate default was considered by him.     Kevin C. Cain for the defendants. Donald J. Hubbard for the plaintiff.     SULLIVAN, J.  The plaintiff, David Ceruolo (David) sued his ex-wife Lyllian Ceruolo (Lyllian),[2] and her mother, Martha Garcia (Garcia) for defamation and negligent and intentional infliction of emotional distress following the conclusion of a contentious divorce.  The defendants were defaulted in the civil action, and moved unsuccessfully to remove the default.  Lyllian and Garcia appeal from the entry of a final judgment after a hearing on assessment of damages, contending that the default should have been vacated.  David cross-appealed regarding damages.  We reverse the judgment and remand the case for further proceedings. Background.  During a contentious divorce action, Lyllian and her mother made serious allegations regarding David’s conduct.  A Probate and Family Court judge found the allegations unproven and untrue. Following the entry of final judgment in the divorce case, David filed this suit against Lyllian and Garcia.  The defendants, represented by counsel, filed a notice of appearance and a notice of intent to file a special motion to dismiss pursuant to G. L. c. 231, § 59H, the “anti-SLAPP” statute.  Thereafter, various procedural anomalies occurred.  Because the timing of subsequent events is of importance here, we set out the timeline in some detail. On November 25, 2014,[3] Lyllian and Garcia timely filed the special motion to dismiss.  The judge considered both the pleadings and the affidavit on file, as required by the statute.  See G. L. c. 231, § 59H (“the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based”).  The pleadings focused on conduct leading up to and during the divorce.  The affidavit of damages filed by David made additional allegations not found in the complaint, including a general statement that there was an ongoing course of defamatory conduct after the entry of the decree.  On […]


Posted by Massachusetts Legal Resources - September 7, 2017 at 3:55 pm

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