Deborah A. Butler v. Kenny King.

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

23-P-16

DEBORAH A. BUTLER

vs.

KENNY KING.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff appeals from a decision and order of the

Appellate Division of the District Court affirming the dismissal

of her fraud claims against the defendant. 1 Following an

automobile collision in which she "rear-ended" the defendant,

the defendant filed a claim with the plaintiff's insurance

carrier, citing damage to his vehicle. Although the plaintiff

contended that the defendant's vehicle was not damaged to the

extent that he represented to her insurer, the carrier issued

the defendant a check for $1,400 and subjected the plaintiff to

a surcharge. The plaintiff appealed from the surcharge, and it

was affirmed in the Superior Court. As a result, the plaintiff

sued the defendant under G. L. c. 266, § 111A, alleging theft by

1 The plaintiff has appeared pro se throughout these proceedings.
fraud (count one) and theft of property by fraud (count two). 2

The defendant moved to dismiss the complaint, and a judge of the

District Court, concluding that the plaintiff had no private

right of action to bring suit, granted the defendant's motion.

The plaintiff appealed to the Appellate Division of the District

Court, which affirmed the dismissal. We affirm as well.

Discussion. The plaintiff argues that (1) ample

legislative history exists supporting the conclusion that the

Legislature intended G. L. c. 266, § 111A, to convey a private

right of action, (2) the motion judge and District Court

appellate panel misinterpreted her second count as a claim for

"fraudulent misrepresentation," 3 and (3) the motion judge failed

to draw reasonable inferences in her favor as the nonmoving

party when dismissing the complaint pursuant to Mass. R. Civ. P.

12 (b) (6), 365 Mass. 754 (1974). "We review the denial of a

motion to dismiss de novo." Drake v. Leicester, 484 Mass. 198,

199 (2020), citing Edwards v. Commonwealth, 477 Mass. 254, 260

(2017).

2 The plaintiff described count two in her complaint as
"INTENTIONAL TORT (Theft of property by fraud)."
3 The plaintiff appeals the decision of the Appellate Division

and refers to decisions made by both the motion judge and the
Appellate Division throughout her brief before this court.
Because, as we note below, we review these issues de novo, we
restrict our discussion to the ruling of the motion judge,
except where necessary to address specific aspects of the
plaintiff's argument. See Newton-Wellesley Hosp. v. Magrini,
451 Mass. 777, 783 (2008).

2
1. Private right of action. Count one of the plaintiff's

complaint alleged that the defendant committed theft by fraud in

violation of G. L. c. 266, § 111A. The motion judge dismissed

that claim on the ground that c. 266, § 111A, is a criminal

statute that does not create a private right of action. On

appeal, the plaintiff argues that this court should infer a

legislative intent to create such a private right of action due

to the statute's legislative history. We are not persuaded and

decline to do so.

Chapter 266, § 111A, criminalizes the presentation of

fraudulent insurance claims. 4 Importantly, its text does not

4 General Laws c. 266, § 111A, reads:

"Whoever, in connection with or in support of any claim
under any policy of insurance issued by any company, as
defined in section one of chapter one hundred and seventy-
five, and with intent to injure, defraud or deceive such
company, presents to it, or aids or abets in or procures
the presentation to it of, any notice, statement, proof of
loss, bill of lading, bill of parcels, invoice, schedule,
account or other written document, whether or not the same
is under oath or is required or authorized by law or by the
terms of such policy, knowing that such notice, statement,
proof of loss, bill of lading, bill of parcels, invoice,
schedule, account or other written document contains any
false or fraudulent statement or representation of any fact
or thing material to such claim, or whoever with intent as
aforesaid makes, prepares or subscribes, or aids or abets
in or procures the making, preparation or subscription of,
any such notice, statement, proof of loss, bill of lading,
bill of parcels, invoice, schedule, account or other
written document intended to be presented to any such
company in connection with or in support of any claim under
any such policy issued by it knowing that such notice,
statement, proof of loss, bill of lading, bill of parcels,

3
contain an explicit private right of action. When a statute

does not contain an explicit private right of action, we

consider whether legislative intent suggests an implied right

exists. Juliano v. Simpson, 461 Mass. 527, 531 (2012), citing

Loffredo v. Center for Addictive Behaviors, 426 Mass. 541, 543

(1998). Here, none does. First, the plaintiff fails to cite to

any of the "ample" support for implying a private right of

action to be found in the legislative history of c. 266, § 111A.

Insofar as we can discern, the only actual legislative history

cited by the plaintiff during these proceedings or the

proceedings below, aside from the creation of the statute

itself, is contained in her memorandum of law in opposition to

the defendant's motion to dismiss. There, she stated that

"[t]he legislative history of §111A omits any express

prohibition of a private right of action. As such a credible

argument can be made that such right is implied." The argument

is unavailing. The mere absence of an explicit prohibition of a

private right to action is not, as the plaintiff stated in her

invoice, schedule, account or other written document
contains any false or fraudulent statement or
representation as aforesaid, shall, except as provided in
section one hundred and ten or one hundred and eleven, be
punished by imprisonment in the state prison for not more
than five years or by imprisonment in jail for not less
than six months nor more than two and one half years or by
a fine of not less than $500 nor more than $10,000, or by
both such fine and imprisonment in jail."

4
brief, "ample legislative history" establishing such a right. 5

See Fratus v. Harwich, 100 Mass. App. Ct. 27, 29 (2021).

The plaintiff's remaining argument -- that we should infer

a private right of action based on the First Circuit's decision

in Ferragamo v. Chubb Life Ins. Co. of Am., 94 F.3d 26 (1st Cir.

1996) -- is without merit and borders on the frivolous.

Although Ferragamo, supra, does deal with a complaint alleging

fraud, contrary to the plaintiff's assertion in the trial court,

nothing in Ferragamo suggests that the fraud complaint at issue

in that case was brought under c. 266, § 111A. See id. at 28

(identifying counterclaims for "fraud, deceit and negligent

misrepresentation"). Moreover, in that case, the plaintiff sued

his insurance carrier directly, whereas here, the plaintiff has

sued the third-party recipient of a payment made by her carrier.

In light of these distinctions, the plaintiff's reliance on

Ferragamo is misplaced.

2. Fraudulent misrepresentation. The plaintiff next argues

that the courts below misunderstood count two of her complaint

as one for "fraudulent misrepresentation," which she equates to

a claim for breach of contract. 6 She claims that the motion

5 Here, having thoroughly reviewed the legislative history of
c. 266, § 111A, we discern no such right.
6 This argument is difficult to understand and is only minimally

supported by legal citations as required by Mass. R. A. P. 16
(a) (9) (A), as appearing in 481 Mass. 1628 (2019). See Maroney
v. Planning Bd. of Haverhill, 97 Mass. App. Ct. 678, 683 n.8

5
judge therefore required her to "aver, among other things, that

King's misrepresentation induced her to act to her detriment,"

and further, that this misrepresentation caused the lower court

judges to wrongly apply Mass. R. Civ. P. 9 (b), 365 Mass. 751

(1974), and require her to plead facts in her complaint "with

particularity." 7 She relatedly argues that the judge failed to

draw reasonable inferences in her favor as the nonmoving party

when considering the defendant's motion to dismiss. On careful

review, we discern no error.

First, the plaintiff's argument that the motion judge, and

later the Appellate Division, required her to show reliance on

the defendant's misrepresentations is, simply, not supported by

the record. Contrary to the plaintiff's argument here, neither

the ruling of the motion judge nor the order of the Appellate

Division suggests that the plaintiff was required to show that

she relied on any misrepresentation on the part of the

defendant. The only record citations that the plaintiff makes

(2020) (arguments lacking legal citations "do not rise to the
level of appellate argument"). "Although some leniency is
appropriate in determining whether pro se litigants have
complied with rules of procedure, the rules nevertheless bind
pro se litigants as all other litigants." Brown v. Chicopee
Fire Fighters Ass'n, Local 1710, IAFF, 408 Mass. 1003, 1004 n.4
(1990).
7 As we discuss infra, rule 9 (b) requires that "[i]n all

averments of fraud, mistake, duress or undue influence, the
circumstances constituting fraud, mistake, duress or undue
influence shall be stated with particularity."

6
in support of her contention that her claim in count two was

misunderstood are to the transcript of her argument before the

Appellate Division. There she and the defendant's counsel

raised the prospect of proving that she relied on a

misrepresentation by the defendant; 8 the panel did not suggest

that reliance was an element of the plaintiff's claims.

Furthermore, the panel's written order makes clear that it

properly understood the elements of fraud that must be pleaded.

See Equipment & Sys. for Indus., Inc. v. Northmeadows Constr.

Co., 59 Mass. App. Ct. 931, 931-932 (2003).

The plaintiff further argues that both the motion judge and

the Appellate Division panel wrongly applied rule 9 (b) to her

claim and that rule 9 (b) does not alter the elements she must

plead to establish her claim. As we have just discussed, the

plaintiff has not shown that either the motion judge or the

Appellate Division erred in their assessment of the elements of

the plaintiff's fraud claims. To the extent either the judge or

the panel applied rule 9 (b), we are satisfied that they did so

properly. While the motion judge's endorsement granting the

defendant's motion to dismiss offers relatively little insight

into his reasoning, the Appellate Division panel clearly

8 The defendant suggested during that argument that the plaintiff
should be required "to show that she somehow relied on the
misrepresentation."

7
considered rule 9 (b)'s heightened pleading requirement in its

dismissal of the plaintiff's claim. 9 We conclude that it was

correct to do so. Count two is subject to the rule 9 (b)

requirement that complaints of fraud be pleaded with greater

particularity. See Masingill v. EMC Corp., 449 Mass. 532, 545

(2007) ("Fraud must be pleaded with particularity"). The

plaintiff was, therefore, required to state with a heightened

degree of particularity the specific circumstances of the fraud

she alleged.

Instead, the plaintiff merely asserted in her complaint

that the defendant filed a claim with her insurance provider

that she believed was not supported by the actual damage to his

vehicle. Notably, nowhere in her complaint does she actually

state that the defendant lied in the process of filing the

claim, other than to assert that he filed it fraudulently, nor

does she describe in any detail the state of the defendant's

vehicle after the collision. These conclusory allegations and

unsupported assertions of wrongdoing were not enough. See

Equipment & Sys. For Indus., Inc., 59 Mass. App. Ct. at 931-932.

The plaintiff argues that, under our caselaw, the motion

judge is required to accept as true the allegations in the

complaint and resolve factual disputes in her favor when

9 The panel wrote that "when fraud is alleged, it must be pleaded
with particularity" and cited rule 9 (b) directly.

8
considering the defendant's motion to dismiss pursuant to rule

12 (b) (6). While she is correct in her assertion, rule 12 (b)

(6) does not abrogate rule 9 (b). See Equipment & Sys. for

Indus., Inc., 59 Mass. App. Ct. at 932 ("when a judge considers

a Mass. R. Civ. P. 12 (b) (6) motion to dismiss a complaint

alleging fraud and deceit, the requirement that there be an

'exceedingly liberal reading' of a complaint must include

consideration of the requirements of Mass. R. Civ. P. 9 (b)"

[citation omitted]). Rather, the latter supplements the former

and requires that, although allegations and factual disputes

must be resolved in the plaintiff's favor when analyzing the

defendant's motion to dismiss, those resolutions must all the

same lead the court to conclude that the plaintiff pleaded the

details of the alleged fraud with sufficient specificity. 10 Id.

Here, assuming without deciding that all the factual allegations

contained in the plaintiff's complaint are true, her complaint

nonetheless constitutes little more than an accusation of fraud

without the requisite specificity required by rule 9 (b). In

10It is for this reason that the plaintiff's argument that the
rules of procedure cannot alter the elements of a prima facie
case falls short. Rule 9 (b) does not alter the elements of
fraud, but, rather, requires them to be pleaded with greater
specificity. See Equipment & Sys. for Indus., Inc., 59 Mass.
App. Ct. at 931-932.

9
this light, we discern no error in the motion judge's decision

to dismiss the plaintiff's complaint. See id. at 931-932. 11

Decision and order of
Appellate Division
affirmed.

By the Court (Desmond, Hand &
Hodgens, JJ. 12),

Clerk

Entered: December 14, 2023.

11 The defendant's request for an award of costs and attorney's
fees is denied.
12 The panelists are listed in order of seniority.

10