Lisa Antonelli Jones v. Ryne Steven Johnson.

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-319

LISA ANTONELLI JONES

vs.

RYNE STEVEN JOHNSON.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a Superior Court jury trial, the plaintiff, Lisa A.

Jones, appeals from judgments that, collectively considered,

dismissed her claims against the defendant dentist, Ryne S.

Johnson, arising out of incidents of alleged sexual harassment

that occurred while she was his patient in 2014. 1 We conclude

that a judge (first motion judge) erred in dismissing Jones's

claims under G. L. c. 93A and for intentional infliction of

emotional distress (IIED). We further conclude that a second

1Three different partial judgments entered, on the same
date, based on the partial allowance of Johnson's motion to
dismiss, the partial allowance of his motion for summary
judgment, and a jury verdict that resolved the last remaining
claim. In the absence of a certification under Mass. R. Civ. P.
54 (b), 365 Mass. 820 (1974), "the better practice is to defer
the entry of anything designated a 'judgment' until all claims
are determined as to all parties and then to have a single final
judgment enter as to all claims and parties." Jones v. Boykan,
74 Mass. App. Ct. 213, 218 n.9 (2009).
motion judge erred in ordering summary judgment for Johnson on

Jones's claim of assault and battery, although that judge was

correct in ruling that most of Jones's public accommodation

claim was time-barred and not saved by the continuing violation

doctrine. We therefore vacate portions of the judgments and

remand for further proceedings.

Background. We discuss the key allegations of the first

amended complaint (complaint), reserving certain details for

later discussion. When Jones sought treatment in February 2014

for a front tooth that needed a crown, Johnson made

inappropriate sexually oriented comments to her, both in his

office and in a telephone call to her afterward. These included

responding to her question about her options (by which she meant

treatment options) by suggesting that she "always ha[d] Weld

Square," referring to an area noted for sex workers in New

Bedford, a city near which she lived.

When Jones returned to Johnson's office in April 2014

because a temporary crown had come loose, he told her there was

no charge for the visit but that she could buy him a drink when

he came to New Bedford a few weeks later. Later in April, he

sent her a text message asking to meet; she "felt trapped and

pressured by this behavior as she was part-way through the

dental treatment and had paid [Johnson's] practice a substantial

amount of money." After several text exchanges, she told him

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that she did not feel comfortable meeting him socially, to which

he replied, "Okay, we can keep this strictly professional."

Jones suffered stress, hair loss, anxiety, and fear about

returning for treatment.

When Jones returned for an appointment in June 2014,

Johnson seemed angry (as Jones had feared) and did not speak to

her. To her surprise in light of what Johnson's office had told

her about the purpose of the visit, he began drilling into and

pushing on the tooth, causing her substantial pain. He then

pulled on the tooth using pliers and a wire and exclaimed, "Oh,

no!" She asked what was wrong and Johnson eventually replied,

"Your tooth broke to the gum line and I can't do the crown now."

She asked him if she had options, to which he replied that she

could work the streets in New Bedford. He also said that she

had two choices: "a post and crown which might not last or an

implant for $8,500." Jones stopped treatment with Johnson.

Jones later commenced this action. The complaint alleged,

among other things, claims for violation of c. 93A, IIED,

assault and battery, and sex discrimination in a place of public

accommodation, see G. L. c. 272, § 98. 2 The c. 93A and IIED

As discussed infra, the public accommodation claim was
2

initially filed with the Massachusetts Commission Against
Discrimination under G. L. c. 151B, § 5, and then dismissed and
refiled in Superior Court. The complaint asserted other claims,
including against Johnson's dental practice, that were later
dismissed and are not at issue on appeal.

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claims were dismissed in 2017 for failure to state a claim.

Later, on Johnson's 2018 summary judgment motion, the assault

and battery claim was dismissed, and the public accommodation

claim was narrowed on timeliness grounds. What remained of that

claim was tried in 2021 to a defense verdict. Judgment entered,

and this appeal followed.

Discussion. We review the sufficiency of the complaint de

novo, taking as true its factual allegations and drawing all

reasonable inferences in Jones's favor. See Curtis v. Herb

Chambers I-95, Inc., 458 Mass. 674, 676 (2011). "[W]e look

beyond the conclusory allegations in the complaint and focus on

whether the factual allegations plausibly suggest an entitlement

to relief." Id., citing Iannacchino v. Ford Motor Co., 451

Mass. 623, 635-636 (2008). In doing so, we consider, among

other things, exhibits attached to the complaint. See Schaer v.

Brandeis Univ., 432 Mass. 474, 477 (2000).

1. Chapter 93A claim. In the context of medical (or in

this case dental) treatment, alleged negligence alone does not

state a c. 93A claim. See Darviris v. Petros, 442 Mass. 274,

278-280 (2004). Rather, a plaintiff must allege some unfairness

or deception in an "entrepreneurial or business aspect of [the

defendant's dental] practice." Id. at 280. Here, the first

motion judge dismissed Jones's c. 93A claim on the ground that

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her complaint failed to allege that any of Johnson's conduct was

economically motivated.

Jones's complaint, however, attached and incorporated her

c. 93A demand letter, in which she alleged that Johnson's

conduct had an economic dimension. Specifically, she alleged

that after Johnson broke her tooth, he told her that a crown

probably would not last and suggested that she proceed with an

implant costing $8,500. His office retained the money she had

already paid for the crown. After her final visit, his office

pressured her to return, including by "falsely stating that she

would lose all of her money and that [the] office had

additionally obtained her insurance coverage/payments . . . to

force her to continue treatment (and remain under the financial

leverage of Dr. Johnson . . . ) when it was clear that she was

seeking an alternate provider."

Jones cited these allegations in her opposition to

Johnson's motion to dismiss. We view the allegations in the

light most favorable to Jones and draw all reasonable inferences

from them in her favor. See Curtis, 458 Mass. at 676. In that

light, the allegations were sufficient to state a claim under

c. 93A as interpreted in Darviris, 442 Mass. at 278-281.

Dismissal of that claim was therefore error.

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2. IIED claim. To state a claim for IIED, a plaintiff

must allege four elements. See Agis v. Howard Johnson Co., 371

Mass. 140, 144 (1976).

"It must be shown (1) that the actor intended to inflict
emotional distress or that [they] knew or should have known
that emotional distress was the likely result of [their]
conduct; (2) that the conduct was extreme and outrageous,
was beyond all possible bounds of decency and was utterly
intolerable in a civilized community; (3) that the actions
of the defendant were the cause of the plaintiff's
distress; and (4) that the emotional distress sustained by
the plaintiff was severe and of a nature that no reasonable
[person] could be expected to endure it" (citations and
quotations omitted).

Id. at 144-145. Here, the first motion judge dismissed Jones's

IIED claim on the grounds that she failed to allege either that

Johnson's conduct was sufficiently extreme and outrageous or

that Johnson intended to inflict such distress on Johnson.

"The standard for making a claim of intentional infliction

of emotional distress is very high," and there is no doubt that

a "judge may grant a motion to dismiss where the conduct alleged

in the complaint does not rise to [the] level" required by Agis

(quotation omitted). Polay v. McMahon, 468 Mass. 379, 385-386

(2014). Here, however, Jones alleged that Johnson made numerous

inappropriate sexual comments and advances to her when she was a

patient under his care, intentionally broke her tooth as

retaliation for rebuffing his advances, and finally suggested

that, inferentially in spite of, or because of, her damaged

front tooth, she could still become a sex worker on the street

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unless she paid $8,500 for an implant. Viewing these

allegations and the reasonable inferences therefrom in the light

most favorable to Jones, we cannot reasonably say, as a matter

of law, that the conduct was not extreme and outrageous within

the meaning of Agis, 371 Mass. at 145.

The first motion judge also ruled that the complaint failed

to allege, except in impermissible conclusory fashion, see

Iannacchino, 451 Mass. at 635-636, that Johnson intended to

inflict emotional distress. The judge read the complaint as

alleging only that emotional distress was "the predictable

result of actions (sexually harassing her and intentionally

breaking her tooth) that [Johnson] took because he was trying to

produce different results altogether (persuading [Jones] to take

part in the romantic/sexual relationship and retaliating against

her for not doing so)." What this overlooks is that under Agis

it also suffices that the defendant "knew or should have known

that emotional distress was the likely result of his conduct."

Agis, 371 Mass. at 144-145. The complaint sufficiently alleged

this element. Dismissal of the IIED claim was therefore error.

3. Assault and battery claim. In reviewing whether

summary judgment was proper on the assault and battery claim, we

ask whether, viewing the evidence in the light most favorable to

Jones as the nonmoving party, all material facts were

established and Johnson was entitled to judgment as a matter of

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law. See Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117,

120 (1991). Johnson could also obtain summary judgment by

showing that Jones, who would bear the burden of proof at trial,

had no reasonable expectation of proving an essential element of

her case. See Kourouvacilis v. General Motors Corp., 410 Mass.

706, 716 (1991).

Jones claimed that Johnson committed an assault and battery

"by his malicious, intentional and permanently damaging

treatment of [Jones] resulting in breaking off of her tooth."

The second motion judge correctly characterized this claim as

one for battery (rather than assault and battery). See Conley

v. Romeri, 60 Mass. App. Ct. 799, 805 n.6 (2004). The judge

recognized that the tort of battery required, among other

things, that the defendant have caused a harmful or offensive

contact with the person of another. See Waters v. Blackshear,

412 Mass. 589, 590 (1992).

The judge ruled that here, the summary judgment record

contained insufficient evidence that Johnson caused any

"harmful" contact with Jones. In the judge's view, the only

evidence of the contact being harmful was Jones's own deposition

testimony that Johnson had wrapped a wire around her tooth,

"snapped it down until [her] tooth broke," and then, when Jones

asked him what had happened, replied, "your tooth snapped off to

the gumline." Johnson, however, offered an affidavit from an

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expert periodontist opining -- based among other things on

radiographs (X-rays) taken before and after the event and on a

conversation with Johnson -- that Jones's tooth had not

fractured at all. Rather, the expert opined that composite

resin material, left over from a 2006 root canal procedure, had

become loose and separated from Jones's tooth. In light of this

expert evidence, and without any contrary expert evidence

offered by Jones, the judge ruled that "no finder of fact

reasonably could conclude that Johnson in fact had broken her

tooth."

This ruling was in error. The expert's opinion was based

in part on the explanation Johnson gave him of what happened.

Not only did Johnson never tell Jones this version, but he made

a contemporaneous comment to her that undercuts it. A finder of

fact could credit Jones's deposition testimony that (1) Johnson

told her that her tooth had snapped off, and (2) Johnson never

informed her that "it was the resin plug that actually loosened

and gave way and not the tooth itself." 3 Johnson, as a dentist

3 A finder of fact could also credit Jones' deposition
testimony that, at an earlier appointment with Johnson, when her
old crown was removed, she could still see a small tooth "like a
rabbit tooth" remaining, but that after the "snapping" incident,
Johnson gave her a mirror and she looked and saw that she had
"no tooth in [her] head." Jones's account of a dental
hygienist's surprised reaction to the "snapping" also supports
Jones's claim.

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with twenty-seven years of experience as of the time he treated

Jones, was not lacking in expertise of his own. What he told

Jones (according to her) was in the nature of an excited

utterance, arguably against his own interest, and thus less

likely to be fabricated. The finder of fact would not be

required to believe either (1) what Johnson might have said

later to the expert periodontist that informed the expert's

opinion, or (2) Johnson's deposition testimony that he noticed

and told Jones that the plastic filling (or "core") of her tooth

was "wiggling" and "had a little wobble to it." 4 Not every

question regarding an alleged injury in a medical setting

requires expert testimony.

In short, there remained a genuine issue of fact as to

whether Johnson broke Jones's tooth. Summary judgment for

Johnson on the battery claim was therefore error.

4. Public accommodation claim; timeliness. The second

motion judge ordered summary judgment for Johnson on most of

Jones's public accommodation claim, on the ground that most of

Johnson's alleged acts of harassment occurred, and Jones knew

the situation was unlikely to improve, more than 300 days before

4 The apparently contemporaneous written record of Jones's
visit stated that "the core broke off the tooth which left a
stump." Although the reference to the core could support
Johnson's account, the statement that something "broke off"
could be taken to support Jones's account.

10
she filed her claim with the Massachusetts Commission Against

Discrimination (MCAD). See note 2, supra. A claim for sex

discrimination in a place of public accommodation, see G. L.

c. 272, § 98, 5 must be filed with the MCAD "within 300 days after

the alleged act of discrimination." G. L. c. 151B, § 5. Here,

it was undisputed that, of Jones's various interactions with

Johnson, only the June 2014 appointment at which she alleges he

broke her tooth occurred within 300 days before Jones's MCAD

filing. The allegations based on the earlier appointments and

the text messages would be time-barred unless saved by the

continuing violation doctrine.

The parties and the judge proceeded on the basis that the

applicability of that doctrine here was governed by Cuddyer v.

Stop & Shop Supermarket Co., 434 Mass. 521 (2001). See Borne v.

Haverhill Golf & Country Club, Inc., 58 Mass. App. Ct. 306, 308-

309, 312-313 (2003) (applying Cuddyer to claim of sex

discrimination in public accommodation). As most pertinent

here, Cuddyer provides:

"[A] plaintiff who demonstrates a pattern of sexual
harassment that creates a hostile work environment and that
includes conduct within the [then applicable 6] statute of

5 There is no dispute that, for purposes of § 98, a dental
office such as that operated by Johnson is a place of public
accommodation. See G. L. c. 272, § 92A.

6 At the time Cuddyer was decided, the limitations period
for filing with the MCAD was set by G. L. c. 151B, § 5, at six
months. Cuddyer, 434 Mass. at 522. The statute was amended in

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limitations, may claim the benefit of the continuing
violation doctrine and seek damages for conduct that
occurred outside the limitations period, unless the
plaintiff knew or reasonably should have known that her
work situation was pervasively hostile and unlikely to
improve, and, thus, a reasonable person in her position
would have filed a complaint with the MCAD before the
statute ran on that conduct."

Cuddyer, supra at 539. Whether the doctrine applies may in some

cases present issues of fact, see id., but in others, as Jones's

brief acknowledges, its application may be resolved at summary

judgment as a matter of law. See id. at 539-540; Borne, supra

at 312.

Here, the judge discussed the summary judgment record in

detail and concluded that Jones knew, after her second

appointment and a late April 2014 text message exchange with

Johnson, that: (1) she was being sexually harassed, (2) she was

suffering emotional and physical symptoms as a result, and

(3) the situation was "unlikely to improve." Cuddyer, 434 Mass.

at 539. The judge determined as a matter of law that "a

reasonable person in [Jones's] position would have filed a

complaint with the MCAD before the statute ran on that conduct,"

id., and so she could not avail herself of the continuing

violation doctrine.

2002 to enlarge the filing period to 300 days. See G. L.
c. 151B, § 5, as amended by St. 2002, c. 223, § 1.

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On appeal, Jones argues that the judge ignored that, in

response to her text message expressing discomfort about meeting

Johnson socially, he assured her, "we'll keep it strictly

professional." Jones's theory, as we understand it, is that she

was reasonably entitled to rely on this statement as a basis to

think that matters might improve and that there was no need to

file a complaint. Jones points to one of the policy concerns

underlying the Cuddyer rule: that the complainant should not

"be forced prematurely to choose litigation as a remedy."

Cuddyer, 434 Mass. at 538.

The problem for Jones is that her deposition testimony

shows beyond reasonable dispute that she did not rely on

Johnson's assurance. Jones testified that even after his text

message, she delayed in making another appointment, and that,

after some time, Johnson's office called to ask if she was

returning to have her treatment completed. Jones then made an

appointment to do so but, on the morning of the appointment, due

to her worry about further sexual harassment, she "had a major

panic attack" and "cancelled last minute." This prompted

Johnson's office to call her back to give her a "sermon" to the

effect that Johnson's time was "very valuable" and he was "very

upset" about the last-minute cancellation. She agreed that she

"felt sexually harassed after the text messages in April," and

it caused her additional hair loss, anxiety, and fear. "[It]

13
just kept getting worse and worse." Based on this record, the

judge correctly ruled that Jones knew the situation was unlikely

to improve and, therefore, the continuing violation doctrine did

not apply.

Jones also suggests that, assuming her public accommodation

claim required evidence that the sexual harassment affected the

quality of the dental treatment she received, then her entire

claim did not accrue until the date Johnson assertedly broke her

tooth, meaning her entire claim was timely filed. Although

Johnson appeared to argue in his summary judgment memorandum

that Jones was required to show an adverse effect on her dental

treatment, nothing in the judge's decision suggests that he

accepted this argument. Jones herself is skeptical of the

argument, Johnson disclaims it in his brief, and we reject it. 7

Nor do we agree with Jones's claim that the trial judge

accepted the argument. Neither the jury instructions nor the

special questions on the verdict slip required the jury, in

order to return a verdict for Jones, to find that any harassment

or discrimination also affected the quality of the dental

7 Because the public accommodation law applies to a wide
range of establishments (such as hotels, restaurants, and gas
stations) going well beyond dental or medical facilities, see
G. L. c. 272, § 92A, the law's prohibition of discrimination in
the "treatment" of a person in a place of public accommodation,
G. L. c. 272, § 98, clearly encompasses more than dental or
medical treatment.

14
treatment Jones received. Both the instructions and the verdict

slip focused instead on whether any discrimination denied Jones

"the full and equal accommodations, advantages, facilities and

privileges of" the dental office as a place of public

accommodation. G. L. c. 272, § 98. The advantages and

privileges of a visit to a dental office could plainly encompass

freedom from sexual harassment, even if the dental treatment

itself were exemplary.

In short, even before Johnson allegedly broke Jones's

tooth, his allegedly improper advances and the resulting harm to

Jones caused the bulk of her claims of discrimination in a

public accommodation to accrue more than 300 days before Jones's

MCAD filing. Summary judgment on those portions of her claims

was therefore proper. 8

Conclusion. So much of the judgments as dismissed the

claims of a c. 93A violation, intentional infliction of

emotional distress, and battery are vacated. In all other

8 Jones argues in passing that she is entitled to a new
trial on her public accommodation claim because the second
motion judge's ruling on the battery claim barred her from
offering evidence at trial of retaliation (in the form of
intentional damage to her tooth) and resulting damages. This
claim, made without any citation to the record or supporting
legal authority, does not rise to the level of appellate
argument under Mass. R. A. P. 16 (a) (9) (A), as appearing in
481 Mass. 1628 (2019), and we decline to consider it. See
Maroney v. Planning Bd. of Haverhill, 97 Mass. App. Ct. 678, 683
n.8 (2020) (claims not adequately argued on appeal are waived).

15
respects the judgments are affirmed. The case is remanded for

further proceedings consistent with this memorandum and order. 9

So ordered.

By the Court (Milkey, Sacks &
Smyth, JJ. 10),

Assistant Clerk

Entered: April 22, 2024.

9 Jones's request for appellate attorney's fees and costs
under c. 93A is denied as premature. Cf. Tavares v. Trial
Court, 103 Mass. App. Ct. 780, 786 n.9 (2024) (request for
appellate attorney's fees under G. L. c. 151B denied as
premature notwithstanding favorable appellate ruling because
"merits of the[] claims remain to be determined" in trial
court).

10 The panelists are listed in order of seniority.

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