Andrew Thibaudeau v. Denise Reis.

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

24-P-82

ANDREW THIBAUDEAU

vs.

DENISE REIS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Andrew Thibaudeau, brought a complaint

against the defendant, Denise Reis, alleging negligence

(count I), gross negligence (count II), defamation/libel

(count III), intentional infliction of emotional distress

(count IV), and negligent infliction of emotional distress

(count V). Upon motion, the judge dismissed all counts but for

count IV, pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754

(1974). A bench trial in the Superior Court was held as to

count IV, where the parties waived detailed written findings of

fact and rulings of law pursuant to Rule 20 of the Rules of the

Superior Court (2023). Following the trial, the judge issued a

finding in plaintiff's favor and, in so doing, answered special

questions on each element of the claim. The defendant now

appeals, arguing that the judge erred by finding that the
plaintiff satisfied the elements of his claim for intentional

infliction of emotional distress. Plaintiff cross-appeals

arguing that the motion judge erred in dismissing counts I-III

and V. We affirm the judgment in all respects.

Standard of review. "Pursuant to rule 20 (2) (h), the

parties waived their right to a jury trial and to detailed

written findings of fact and rulings of law" (quotation

omitted). K & K Dev., Inc. v. Andrews, 103 Mass. App. Ct. 338,

344 (2023). "Accordingly, appellate review is conducted

according to the same standard as that applied to a judgment

entered following a jury verdict." Id., citing Rule 20 (8) (b)

of the Rules of the Superior Court (2018). "We therefore review

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 drawn in favor of the

prevailing party" (quotation and citation omitted). K & K Dev.,

Inc., supra.

Background. The conduct forming the basis of the

plaintiff's claim for intentional infliction of emotional

distress was the defendant's non-consensual acts of sharing an

unflattering nude photograph of the plaintiff and

surreptitiously accessing the plaintiff's personal email,

Google, and Facebook accounts.

2
At trial, the defendant testified that she took the nude

photograph of the plaintiff (photo) on her cell phone when she

and the plaintiff were living together as a couple and that they

both laughed at the photo because it was unflattering. The

defendant further stated that she only showed the photograph to

her friend, Amy Gallinelli, while they were sitting alone at a

public bar after she and the plaintiff had broken up. She

testified that the purpose of showing Gallinelli the photo was

to confide in her and to have a laugh. The defendant also

admitted that she sent Gallinelli an electronic copy of the

photo on multiple occasions. On one of these occasions, the

defendant decided to send Gallinelli the photo to "cheer her up"

after Gallinelli had experienced a breakup of her own, and to

express the sentiment that "it could be worse." On another

occasion, the defendant testified that she set the nude photo as

the plaintiff's contact picture on her cell phone and then

shared the contact profile with Gallinelli. The defendant could

not recall whether she told Gallinelli not to share the photo

with anyone else but felt like they had an "unspoken" agreement

that her friend would not share the photo with others.

The defendant also readily admitted that she accessed the

plaintiff's email, Facebook, and Google accounts without his

permission. In so doing, the defendant read the plaintiff's

emails and private messages on Facebook, operated his Facebook

3
account, and viewed and deleted some of his photos. In fact,

the defendant sent one text message to Gallinelli detailing her

use of the plaintiff's Facebook account to "unblock herself,"

and sent another text to Gallinelli stating "[h]e [the

plaintiff] finally realized that I had accessed his google

accounts though because he changed his password. And now I

can't get in[to] his email, photos, etc." She subsequently

remarked that "it was about time he [the plaintiff] noticed"

that she had access to his accounts because she deleted some of

the plaintiff's personal photos "weeks ago."

Contrary to the defendant's testimony, Gallinelli testified

that the defendant first showed her the photo at Gallinelli's

home and then showed the photo again to herself and a group of

four or five mutual friends when they were at a local bar.

Gallinelli also testified that the photo was shared with

multiple people at Gallinelli's home during social gatherings.

Gallinelli further testified that she told other friends that

she had a copy of the photograph, and that "everybody knew about

it," referring to her mutual friend group with the plaintiff.

Additionally, although Gallinelli is unsure whether she told

anyone that the defendant had access to the plaintiff's online

accounts, Gallinelli did confront at least one of the

plaintiff's mutual friends about certain Facebook messages on

the plaintiff's account that the defendant shared with her.

4
The plaintiff's friend, Brian Correria, testified that he

learned about the existence of the photo from his girlfriend,

who is in the same social circle as the defendant, and

immediately notified the plaintiff. Correria stated that after

learning about the photo, the plaintiff began to socialize less

frequently. Likewise, the plaintiff testified that due to the

photo being shared and the defendant's interference with his

online accounts, he tended to "stay away as much as possible"

from local social gatherings and has experienced considerable

mental anguish and difficulty sleeping. The plaintiff expressed

concern about the defendant's actions affecting his employment

due to the possibility that the defendant might still possess

and share his personal information or other photos. The

plaintiff further stated that he has no recollection of the

photo being taken and did not give the defendant permission to

take the photo.

1. Count IV. To prevail on a claim for intentional

infliction of emotional distress, a plaintiff must show

"(1) that the defendant intended to cause, or should have
known that [their] conduct would cause, emotional distress;
(2) that the defendant's conduct was extreme and
outrageous; (3) that the defendant's conduct caused the
plaintiff's distress; and (4) that the plaintiff suffered
severe distress. To be considered extreme and outrageous,
the defendant's conduct must be beyond all bounds of
decency and . . . utterly intolerable in a civilized
community. Liability cannot be founded upon mere insults,
threats, or annoyances" (citation omitted).

5
Howcroft v. Peabody, 51 Mass. App. Ct. 573, 596 (2001).
As indicated supra, we must only consider "whether anywhere

in the evidence, from whatever source derived, any combination

of circumstances could be found from which a reasonable

inference could be drawn in favor of the [prevailing party]"

(quotation and citation omitted). K & K Dev., Inc., 103 Mass.

App. Ct. at 344. Weighing the evidence and assessing the

credibility of witnesses are matters for the trial judge that we

do not engage in on appellate review. See Millenium Equity

Holdings, LLC v. Mahlowitz, 456 Mass. 627, 636-637 (2010) (trial

judge as fact finder is "in the best position to assess the

credibility of witnesses and to determine the facts"). Here,

the judge could reasonably conclude from the totality of the

evidence that the defendant should have at least known that her

decision to share an unflattering nude photograph of the

plaintiff with multiple people in their small community and to

access the plaintiff's online accounts and personal photos

without his permission would cause him emotional distress. See

Howcroft, 51 Mass. App. Ct. at 596. Additionally, sharing an

explicit photograph of another person without their consent is

the type of conduct that has been recognized as "extreme and

outrageous." See Bowman v. Heller, 420 Mass. 517, 522 n.6

(1995) (upholding judge's determination that employee's decision

to distribute photocopies of employer's face superimposed on

6
nude model's body was extreme and outrageous). Finally, given

the uncontroverted testimony regarding the plaintiff's mental

anguish leading him, inter alia, to avoid socializing in his

hometown, the judge's determination that the defendant's conduct

caused the plaintiff severe emotional distress was reasonable

and supported by the record. Howcroft, supra.

Accordingly, the judge did not err in finding the defendant

liable under count IV.

2. Plaintiff's cross-appeal. In his cross-appeal, the

plaintiff argues that the judge erred in dismissing his

negligence claims (counts I, II, & V) on the basis that there is

no "legally cognizable duty between parties in a dating

relationship" because the conduct alleged in the complaint

occurred after the termination of the relationship between the

parties. He further argues that the judge erred in dismissing

his defamation/libel claim (count III) because, contrary to the

judge's conclusion, the photo contained information identifying

the plaintiff as the person depicted in it. These arguments are

unavailing.

First, while the plaintiff avers that the judge relied on

an incorrect ground to dismiss his negligence claims, he fails

to argue that a duty of care existed between himself and the

defendant sufficient to sustain his negligence claims, and he

cites no case law supporting this proposition. Second, the

7
judge dismissed the plaintiff's claim for defamation/libel

(count III) because his complaint failed to identify any

defamatory or false statements that were the cause of his

damages. While the plaintiff now relies on the defendant's

testimony at trial to support his argument that the photo did

contain information identifying the plaintiff, he fails to argue

why the photo was defamatory or libelous or cite any case law to

that effect. As such, the judge did not err in dismissing

counts I-III and count V.

Judgment affirmed.

By the Court (Desmond,
Walsh & Toone, JJ. 1),

Clerk

Entered: January 15, 2025.

1 The panelists are listed in order of seniority.

8