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-659

JOANNA DEPENA & others.1

vs.

KERVIN VALDEZ.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiffs, Joanna DePena, Jenny Alvarez, and Julio 

Meran, appeal from a judgment dismissing their complaint against 

Kervin Valdez, the defendant, pursuant to Mass. R. Civ. P. 12

(b) (6), 365 Mass. 754 (1974). The plaintiffs also attempt to 

challenge the now-retired judge's denial of their postjudgment 

motion to recuse. We affirm in part and vacate in part.

Background. For purposes of the motion to dismiss, we 

treat the allegations of the amended complaint as true, see

Lanier v. President & Fellows of Harvard College, 490 Mass. 37,

40 (2022). The plaintiffs are affiliated with various 

nonprofits serving Lawrence, Massachusetts. The defendant 

operates a business in Lawrence, Massachusetts. The plaintiffs 

1 Jenny Alvarez and Julio Meran.
2

and the defendant collaborated on a community event designed to 

provide 40,000 pounds of food to 1,200 families in the greater 

Lawrence area. A dispute arose as to whether larger, higher 

priced turkeys should be purchased versus smaller, lower priced 

turkeys. The defendant purchased the larger, more expensive 

turkeys, and requested payment from the plaintiffs' nonprofits.

On behalf of the nonprofits the plaintiffs refused to pay, 

claiming that they had not authorized the higher expenditure and 

requesting invoices. According to the introduction to the 

amended complaint, the defendant then made comments on social 

media to the effect that the plaintiffs had "stolen" or 

misappropriated money intended for charity. The plaintiffs 

thereafter sued alleging defamation (count one), intentional 

infliction of emotional distress (count two), and unfair and 

deceptive trade practices in violation of G. L. c. 93A (count 

three).

Discussion. 1. Procedure. The plaintiffs contend that 

the judge erred in treating the defendant's motion to dismiss as 

such rather than a motion for summary judgment. After the 

motion to dismiss was filed, the plaintiffs submitted a number

of unverified documents in opposition. This filing failed to 

comport with the requirements of Superior Court Rule 9A or the 

verification requirements of Mass. R. Civ. P. 56, 365 Mass. 824 

(1974). See Bardige v. Performance Specialists, Inc., 74 Mass. 
3

App. Ct. 99, 103 (2009), and cases cited (party opposing motion 

for summary judgment must submit verified affidavits and 

documents showing facts that would be admissible at trial, and 

which demonstrate genuine dispute of material fact). The judge 

ruled, correctly, that the plaintiffs would gain nothing by 

converting the defendant's motion to one heard under rule 56, 

see Eigerman v. Putnam Invs., Inc., 450 Mass. 281, 285 n.6 

(2007), because the proffered documents could not be properly 

considered. Moreover, the plaintiffs expressed their assent to 

this procedure at the hearing before the judge, thus waiving the 

issue in any event.2 See Zucco v. Kane, 439 Mass. 503, 509-510 

(2003); Nantucket Land Council, Inc. v. Planning Bd. of 

Nantucket, 5 Mass. App. Ct. 206, 207 n.2 (1977).

2. Dismissal. "We review the grant of a motion to dismiss 

de novo, accepting as true all well-pleaded facts alleged in the 

complaint, drawing all reasonable inferences therefrom in the 

plaintiff's favor, and determining whether the allegations 

plausibly suggest that the plaintiff is entitled to relief." 

Lanier, 490 Mass. at 43.

Our review of the amended complaint is hampered by the 

complaint itself. The amended complaint is both disorganized 

and diffuse. Rather than contain a short and plain statement of 

2 When the judge said she would treat the motion as a motion to 

dismiss, counsel stated, "I understand," and did not object.
4

the facts, see Mass. R. Civ. P. 8, 365 Mass. 749 (1974), whole 

sections appear in narrative form, conflating fact, law, and 

argument. There are no numbered allegations describing the 

parties. Other paragraphs are numbered, but the numbers repeat, 

and allegations pertaining to one cause of action appear in a 

different cause of action. Based on the plaintiffs' responses 

to our questions at oral argument and our own reading of the 

amended complaint, we understand the amended complaint to allege

claims brought by the individual plaintiffs against the 

individual defendant, and we assess the sufficiency of the 

allegations in that context.

a. Defamation. The plaintiffs contend that the defamation 

claim was dismissed in error. To prove defamation, the 

plaintiffs must allege "first, the defendant made a statement, 

of and 'concerning the plaintiff, to a third party'; second, the 

'statement could damage the plaintiff's reputation in the 

community'; third, the defendant was at fault for making the 

statement; and fourth, the statement caused economic loss or, in 

four specific circumstances, is actionable without economic 

loss." Scholz v. Delp, 473 Mass. 242, 249 (2015), quoting 

Ravnikar v. Bogojavlensky, 438 Mass. 627, 629–630 (2003). 

Although buried in the discursive introduction, the amended 

complaint does allege that the defendant posted a false 

statement on social media to the effect that the plaintiffs 
5

"stole" money associated with the community event. This is a 

form of libel (a statement charging the plaintiffs with a 

crime), which is actionable without proof of economic loss. 

Ravnikar, supra at 630; Shafir v. Steele, 431 Mass. 365, 373 

(2000); Lynch v. Lyons, 303 Mass. 116, 118-119 (1939). The 

defamation claim should not have been dismissed.

b. Intentional or reckless infliction of emotional 

distress. To state a claim for reckless or intentional 

infliction of emotional distress, "four elements must be 

established. It must be shown (1) that the actor intended to 

inflict emotional distress or that he knew or should have known 

that emotional distress was the likely result of his 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 man could be expected to endure it"

(citations and quotations omitted). Agis v. Howard Johnson Co., 

371 Mass. 140, 144-145 (1976). Allegations of extreme or 

outrageous conduct therefore must meet a high bar. See Lanier, 

490 Mass. at 48. The plaintiffs' amended complaint contains 

bare and conclusory allegations that track the elements of the 

cause of action. However, the amended complaint fails to allege 
6

underlying facts sufficient to plausibly suggest that the 

defendant's conduct was so extreme and outrageous as to "flout 

the most basic community standards of decency and propriety," or 

that the plaintiffs suffered severe distress, and count two was 

properly dismissed for this reason. Id. In addition, the 

plaintiffs have not made any appellate argument regarding the 

dismissal of this claim, and the argument is therefore waived. 

See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 

1628 (2019). See also Zoning Bd. of Appeals of Lunenburg v. 

Housing Appeals Comm., 464 Mass. 38, 55 (2013) (arguments not 

made on appeal are waived).

c. Chapter 93A. The dismissal of the c. 93A claim 

presents a more complex issue. The plaintiffs appear to allege 

the purchase of the turkeys and demand for payment was an unfair 

and deceptive trade practice, but the underlying transaction, as 

alleged, was one involving the plaintiffs' nonprofits and the 

defendant's business, not the plaintiffs and defendant

individually.3 On appeal, the plaintiffs explicitly ground their 

3 To the extent that the amended complaint appears to allege 

improper billing and pricing, this is a dispute between the 

plaintiffs' nonprofits and the defendant's business, none of 

which are parties to this action. Moreover, there is no 

allegation in the present complaint that the disagreement 

regarding cost, billing, or pricing rose above the level of a 

business dispute between the nonprofit and corporate entities. 

See generally Anthony's Pier Four, Inc. v. HBC Assocs., 411 

Mass. 451, 474 (1991). Further, there exists a fundamental, 

threshold question whether the fundraiser constituted commercial 
7

c. 93A claim on their claim for intentional infliction of 

emotional distress, but this claim was properly dismissed. 

Finally, the plaintiffs (as individuals) complain of damage to 

their professional reputations as a result of allegedly libelous 

statements by the defendant as an individual. Such defamation 

may support a G. L. c. 93A claim. See Dulgarian v. Stone, 420 

Mass. 843, 853 (1995); TLT Constr. Corp. v. A. Anthony Tappe &

Assocs., Inc., 48 Mass. App. Ct. 1, 13 (1999). Where a 

defamation claim has been improperly dismissed, the G. L. c. 93A 

claim based on the defamation may also survive. Whether the 

plaintiffs may bring a claim under G. L. c. 93A, § 9 or § 11 

(the complaint fails to allege which), may be decided on remand. 

On this one basis only, the c. 93A claim should not have been 

dismissed.

3. Recusal. The judge denied the motion to recuse on the 

ground that the plaintiffs failed to comply with Superior Court 

Rule 9A, without prejudice to their right to refile in 

compliance with the rule. The plaintiffs now claim that this 

was error. Leaving aside the fact that the motion is now mooted 

by the judge's retirement, the plaintiffs failed to file a 

activity by parties engaged in trade or commerce, a matter as to 

which there are no allegations in the amended complaint. See 

Linkage Corp. v. Trustees of Boston Univ., 425 Mass. 1, 23 

(1997); Planned Parenthood Fed'n of Am., Inc. v. Problem 

Pregnancy of Worcester, 398 Mass. 480, 491-493 (1986).
8

notice of appeal from the denial of their motion. See Mass. R. 

A. P. 3, as appearing in 481 Mass. 1603 (2019); Mass. R. A. P. 

4, as appearing in 481 Mass. 1606 (2019). As a result, there is 

no appeal pending from the order denying the motion, and we 

cannot review it. While "the letter and spirit of [our rules of 

appellate procedure] g[i]ve the Appeals Court the power to act -

- provided the notice of appeal was filed within one year of the 

issuance of notice of the order the [plaintiffs] sought to 

appeal from," no notice of appeal was filed in this case within 

thirty days, nor was there a motion for leave to file late 

notice of appeal within the one year period.4 Commonwealth v. 

Jordan, 469 Mass. 134, 144 (2014). "A timely notice of appeal 

is a jurisdictional prerequisite to our authority to consider 

any matter on appeal." DeLucia v. Kfoury, 93 Mass. App. Ct. 

166, 170 (2018). Moreover, even if we were able to consider the 

issue, we would discern no abuse of discretion in the judge's 

decision to require compliance with the procedural rules 

applicable to all litigants. Cf. Malden Police Patrolman's 

Ass'n v. Malden, 92 Mass. App. Ct. 53, 55-56 (2017) (whether to 

hear motion that failed to comply with rule 9A fell within 

motion judge's discretion).

4 The motion was denied on March 2, 2022.
9

Conclusion. So much of the judgment that dismissed counts 

one and three, to the extent that the c. 93A claim in count 

three is based on alleged defamatory statements, is vacated. In 

all other respects the judgment is affirmed.

So ordered.

By the Court (Sullivan, 

Sacks & Ditkoff, JJ.5),

Clerk

Entered: April 28, 2023.

5 The panelists are listed in order of seniority.