NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-1208 22-P-1209
GEORGE SIMOLARIS
vs.
TIMOTHY PIWOWAR (and a companion case1).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, George Simolaris, a former member of the
town of Billerica (town) board of selectmen and a current town
meeting member, appeals from the entry of summary judgment in
favor of the town's superintendent of schools, Timothy Piwowar,
on the plaintiff's defamation claim (first matter). In a
separate matter, the plaintiff appeals from the entry of summary
judgment in favor of the town manager, John Curran, on a similar
claim of defamation in connection with a special election
(second matter). We affirm both judgments.
Discussion. As the appellant, the plaintiff was obligated
under Mass. R. A. P. 18 (a) (1), as appearing in 481 Mass. 1637
(2019), to prepare and file an appendix with a table of contents
1 George Simolaris vs. John Curran. that included, among other things, "any parts of the record
relied upon in the brief [and] any document, or portion thereof,
filed in the case relating to an issue which is to be argued on
appeal." This "fundamental and long-standing rule of appellate
civil practice," Shawmut Community Bank, N.A. v. Zagami, 30
Mass. App. Ct. 371, 373 (1991), S.C., 411 Mass. 807 (1992),
applies equally to parties who, like the plaintiff, represent
themselves, see Davis v. Tabachnick, 425 Mass. 1010, 1010, cert.
denied, 522 U.S. 982 (1997). Here, in both matters the
plaintiff did not file an appendix but instead relies on an
addendum that does not include the exhibits to the joint
statement of facts, the defendant's summary judgment motion, or
the defendant's reply brief. The failure to file an appendix
hinders our ability to review the summary judgment decisions,
and we may affirm the Superior Court judgments on this basis
alone. See Cameron v. Carelli, 39 Mass. App. Ct. 81, 84 (1995).
See also Kiribati Seafood Co. v. Dechert LLP, 478 Mass. 111, 116
(2017) (review of summary judgment decision generally de novo
"because we examine the same record and decide the same
questions of law").
In any event, the record before us, viewed in the light
most favorable to the plaintiff, supports the grant of summary
judgment in both matters. See, e.g., Metcalf v. BSC Group,
Inc., 492 Mass. 676, 681 (2023).
2 1. First matter. In the first matter, the plaintiff's
defamation claim centers around two letters sent by Piwowar via
e-mail message to members of the community on February 13, 2015,
and November 27, 2017.
a. February 2015 letter. The February 2015 letter
concerned the town's plan to construct a new high school and
addressed a video created by the plaintiff about the issue. The
video featured the plaintiff, who was then a member of the
town's board of selectmen, conducting a walking tour and
providing commentary on the existing high school site and a
proposed site to relocate the high school. Piwowar, the town's
superintendent of schools, addressed the video in the
"Importance of Factual Information" section of the February 2015
letter. Piwowar explained that the plaintiff "is entitled to
his opinions, but a number of his statements that he made as
'facts' in his video were inaccurate." Piwowar asserted that
the plaintiff agreed to remove portions of the video that were
inaccurate, but then failed to do so. The plaintiff asserts
that statement is false. Piwowar also attached to the letter a
transcript of the plaintiff's video annotated with Piwowar's
"factual rebuttals" to its contents.
As the judge properly determined, any claim related to the
February 2015 letter was time barred under G. L. c. 260, § 4,
because the plaintiff brought this action in November 2019, more
3 than three years after the letter was published. See Wolsfelt
v. Gloucester Times, 98 Mass. App. Ct. 321, 324 (2020) (cause of
action accrues for defamation claim when statement published to
third party).
b. November 2017 letter. The November 2017 letter
concerned an upcoming special town election to rescind a budget
amendment article ("article 10"). The plaintiff, still a member
of the board of selectmen, successfully campaigned for the
special election. In the letter, Piwowar wrote,
"Back in February 2015, I wrote in a similar manner to the community about the high school project, and entitled one of the sections, 'Importance of Factual Information'. Within that section, I wrote that 'if misinformation is spread in the community, it should be addressed as soon as possible[.]' Please allow this memo to serve a similar purpose as it relates to the December 2 election."
The letter then provided information about article 10.
To the extent that the plaintiff argues Piwowar may be
liable for defaming him in the February 2015 letter by virtue of
referencing it in the November 2017 letter, this argument is
waived because it was not raised before the Superior Court. See
Weiler v. PortfolioScope, Inc., 469 Mass. 75, 86 (2014)
(argument raised for first time on appeal waived).
Even if we were to reach the merits, the argument still
fails. Under the single publication rule, "aggregate
communication [is treated] as one publication that gives rise to
one and only one cause of action [that accrues] from the point
4 at which the original dissemination occurred." Wolsfelt, 98
Mass. App. Ct. at 325.2 An exception exists in that "[a]ny
future republication of the [alleged] false statements . . .
could form the basis for a new cause of action against the
republisher." Id. at 329, quoting Flynn v. Associated Press,
401 Mass. 776, 780 n.5 (1988). That exception does not apply
here because the mere reference to the February 2015 letter does
not constitute a republication. See In re Philadelphia
Newspapers, LLC, 690 F.3d 161, 175 (3d Cir. 2012), cert.
dismissed, 568 U.S. 1151 (2013), cited by Wolsfelt, 98 Mass.
App. Ct. at 329 n.12 (hyperlink and reference to defamatory
material not within republication exception).
The judge also correctly concluded that any claim based on
the contents of the November 2017 letter fails. The plaintiff
has failed to point to any "false statement regarding the
plaintiff" in the November 2017 letter. Flagg v. AliMed, Inc.,
466 Mass. 23, 37 (2013). To the extent he asserts that the
reference to "misinformation" and the February 2015 letter was
Free access — add to your briefcase to read the full text and ask questions with AI
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-1208 22-P-1209
GEORGE SIMOLARIS
vs.
TIMOTHY PIWOWAR (and a companion case1).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, George Simolaris, a former member of the
town of Billerica (town) board of selectmen and a current town
meeting member, appeals from the entry of summary judgment in
favor of the town's superintendent of schools, Timothy Piwowar,
on the plaintiff's defamation claim (first matter). In a
separate matter, the plaintiff appeals from the entry of summary
judgment in favor of the town manager, John Curran, on a similar
claim of defamation in connection with a special election
(second matter). We affirm both judgments.
Discussion. As the appellant, the plaintiff was obligated
under Mass. R. A. P. 18 (a) (1), as appearing in 481 Mass. 1637
(2019), to prepare and file an appendix with a table of contents
1 George Simolaris vs. John Curran. that included, among other things, "any parts of the record
relied upon in the brief [and] any document, or portion thereof,
filed in the case relating to an issue which is to be argued on
appeal." This "fundamental and long-standing rule of appellate
civil practice," Shawmut Community Bank, N.A. v. Zagami, 30
Mass. App. Ct. 371, 373 (1991), S.C., 411 Mass. 807 (1992),
applies equally to parties who, like the plaintiff, represent
themselves, see Davis v. Tabachnick, 425 Mass. 1010, 1010, cert.
denied, 522 U.S. 982 (1997). Here, in both matters the
plaintiff did not file an appendix but instead relies on an
addendum that does not include the exhibits to the joint
statement of facts, the defendant's summary judgment motion, or
the defendant's reply brief. The failure to file an appendix
hinders our ability to review the summary judgment decisions,
and we may affirm the Superior Court judgments on this basis
alone. See Cameron v. Carelli, 39 Mass. App. Ct. 81, 84 (1995).
See also Kiribati Seafood Co. v. Dechert LLP, 478 Mass. 111, 116
(2017) (review of summary judgment decision generally de novo
"because we examine the same record and decide the same
questions of law").
In any event, the record before us, viewed in the light
most favorable to the plaintiff, supports the grant of summary
judgment in both matters. See, e.g., Metcalf v. BSC Group,
Inc., 492 Mass. 676, 681 (2023).
2 1. First matter. In the first matter, the plaintiff's
defamation claim centers around two letters sent by Piwowar via
e-mail message to members of the community on February 13, 2015,
and November 27, 2017.
a. February 2015 letter. The February 2015 letter
concerned the town's plan to construct a new high school and
addressed a video created by the plaintiff about the issue. The
video featured the plaintiff, who was then a member of the
town's board of selectmen, conducting a walking tour and
providing commentary on the existing high school site and a
proposed site to relocate the high school. Piwowar, the town's
superintendent of schools, addressed the video in the
"Importance of Factual Information" section of the February 2015
letter. Piwowar explained that the plaintiff "is entitled to
his opinions, but a number of his statements that he made as
'facts' in his video were inaccurate." Piwowar asserted that
the plaintiff agreed to remove portions of the video that were
inaccurate, but then failed to do so. The plaintiff asserts
that statement is false. Piwowar also attached to the letter a
transcript of the plaintiff's video annotated with Piwowar's
"factual rebuttals" to its contents.
As the judge properly determined, any claim related to the
February 2015 letter was time barred under G. L. c. 260, § 4,
because the plaintiff brought this action in November 2019, more
3 than three years after the letter was published. See Wolsfelt
v. Gloucester Times, 98 Mass. App. Ct. 321, 324 (2020) (cause of
action accrues for defamation claim when statement published to
third party).
b. November 2017 letter. The November 2017 letter
concerned an upcoming special town election to rescind a budget
amendment article ("article 10"). The plaintiff, still a member
of the board of selectmen, successfully campaigned for the
special election. In the letter, Piwowar wrote,
"Back in February 2015, I wrote in a similar manner to the community about the high school project, and entitled one of the sections, 'Importance of Factual Information'. Within that section, I wrote that 'if misinformation is spread in the community, it should be addressed as soon as possible[.]' Please allow this memo to serve a similar purpose as it relates to the December 2 election."
The letter then provided information about article 10.
To the extent that the plaintiff argues Piwowar may be
liable for defaming him in the February 2015 letter by virtue of
referencing it in the November 2017 letter, this argument is
waived because it was not raised before the Superior Court. See
Weiler v. PortfolioScope, Inc., 469 Mass. 75, 86 (2014)
(argument raised for first time on appeal waived).
Even if we were to reach the merits, the argument still
fails. Under the single publication rule, "aggregate
communication [is treated] as one publication that gives rise to
one and only one cause of action [that accrues] from the point
4 at which the original dissemination occurred." Wolsfelt, 98
Mass. App. Ct. at 325.2 An exception exists in that "[a]ny
future republication of the [alleged] false statements . . .
could form the basis for a new cause of action against the
republisher." Id. at 329, quoting Flynn v. Associated Press,
401 Mass. 776, 780 n.5 (1988). That exception does not apply
here because the mere reference to the February 2015 letter does
not constitute a republication. See In re Philadelphia
Newspapers, LLC, 690 F.3d 161, 175 (3d Cir. 2012), cert.
dismissed, 568 U.S. 1151 (2013), cited by Wolsfelt, 98 Mass.
App. Ct. at 329 n.12 (hyperlink and reference to defamatory
material not within republication exception).
The judge also correctly concluded that any claim based on
the contents of the November 2017 letter fails. The plaintiff
has failed to point to any "false statement regarding the
plaintiff" in the November 2017 letter. Flagg v. AliMed, Inc.,
466 Mass. 23, 37 (2013). To the extent he asserts that the
reference to "misinformation" and the February 2015 letter was
clearly regarding him, as he was "the public face of the
2 The plaintiff seemingly argues that the information in the February 2015 letter was repeated by third parties, including by his political opponents and others on social media and in newspapers. That other people (not named as parties in this action) repeated the information may be relevant to the issue of damages, but it does not allow the plaintiff to circumvent the single publication rule with respect to this defendant.
5 opposition to [a]rticle 10," the plaintiff is not named in the
November 2017 letter, nor is his role in campaigning for the
special election mentioned. Moreover, the statements that the
plaintiff points to as false in his appellate brief concern
article 10, not the plaintiff.3 When read in context, the
references to the earlier letter demonstrate only Piwowar's
purpose in reaching out -- to address misinformation in the
community and to present the school committee's position on
article 10. For these reasons, we do not disturb the judge's
decision that Piwowar was entitled to summary judgment.4,5
3 The plaintiff argues, inter alia, that the following statements in the November 2017 letter were false: (1) the town would fall into deficit spending; (2) the town would have to pay higher bond rates; and (3) "the ambiguous field plan and the start of an entirely new town department was not abnormal when placed and embedded in [a]rticle 10." 4 We also agree with the judge that no evidence suggests that the
November 2017 e-mail message was sent with actual malice. See Lane v. MPG Newspapers, 438 Mass. 476, 476, 479 (2003) (elected officials are "public officials" who must prove actual malice to sustain defamation claim). See also Rotkiewicz v. Sadowsky, 431 Mass. 748, 755 (2000) ("actual malice means that the defamatory falsehood was published with knowledge that it was false or reckless disregard of whether it was false" [quotation and citation omitted]). 5 The plaintiff argues that his claim is supported by a letter
from the Office of Campaign and Political Finance to Piwowar concluding that Piwowar's "distribution of [the November 2017] e-mail using public resources [i.e., the town e-mail list and server,] did not comply with the campaign finance law." The office closed the matter, noting that Piwowar used limited resources and promptly acknowledged his error. As the judge correctly explained, whether Piwowar violated campaign finance law is beyond the scope of the plaintiff's complaint for defamation.
6 2. Second matter. In the second matter, the plaintiff
claimed that the town manager, Curran, defamed him in connection
with the special election to rescind article 10. In an article
published in the Lowell Sun newspaper, Curran was quoted as
stating that the plaintiff was "yet again spreading lies" and
"making up stories about the whole thing." The plaintiff
argues, inter alia, that Curran's comments constitute defamation
because they made him "appear as an unfit dishonest public
official and citizen," damaged his reputation, and caused him to
lose his seat as a member of the board of selectmen.
The plaintiff's claim in the second matter suffers from
similar shortcomings as the claim in the first matter. First,
the plaintiff failed to file a record appendix in accordance
with Mass. R. A. P. 18 (a) (1). Second, Curran's statements,
viewed in context, constitute nonactionable statements of
opinion and rhetoric. See Howell v. Enterprise Publ. Co., 455
Mass. 641, 672 (2010). Finally, even assuming, arguendo, that
Curran's statements were false, there is no evidence in the
summary judgment record that demonstrates that the statements
were made with actual malice. See note 4, supra. See also
Lane, 438 Mass. at 479 (public official must prove actual malice
to sustain defamation claim based on criticism relating to
7 official conduct). For these reasons, the judgments in both
matters must be affirmed.
So ordered.
By the Court (Milkey, Massing & Neyman, JJ.6),
Assistant Clerk
Entered: March 7, 2024.
6 The panelists are listed in order of seniority.