GEORGE SIMOLARIS v. TIMOTHY PIWOWAR (And a Companion Case).

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).

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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

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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

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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.

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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.

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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

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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.

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