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-663

KIRBY MASTRANGELO & others1

vs.

CITY OF AMESBURY & others.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiffs appeal from the entry of summary judgment 

against them in the Superior Court. Two counts from the 

plaintiffs' first amended complaint are at issue: one alleging 

that the former mayor of Amesbury, C. Kenneth Gray (mayor), in 

his individual capacity,3 intentionally interfered with the 

plaintiffs' advantageous economic relationship with the Cannabis 

Control Commission (commission), and the other seeking 

declaratory and injunctive relief against the mayor and the city 

of Amesbury. We affirm.

1 Candace Kattar and CKR Natural Solutions, LLC (CKR).

2 C. Kenneth Gray, individually and in his capacity as Mayor of 

the city of Amesbury, and the Cannabis Control Commission.

3 The plaintiffs' intentional interference claim against Mayor 

Gray in his official capacity was previously dismissed and is 

not before us.
2

Discussion. We review a decision on a motion for summary 

judgment de novo without deference to the motion judge. Boelter

v. Selectmen of Wayland, 479 Mass. 233, 237 (2018). "Summary 

judgment is appropriate where there are no material facts in 

dispute and the moving party is entitled to judgment as a matter 

of law." Federal Nat'l Mtge. Ass'n v. Rego, 474 Mass. 329, 332 

(2016). We may consider any ground that supports the judgment. 

Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).

1. Intentional interference. The plaintiffs assert two 

primary claims of error in the motion judge's decision entering 

summary judgment for the mayor on their intentional interference 

claim. First, the plaintiffs argue that the judge erred by

applying a heightened actual malice standard to the "improper 

motive or means" element of the tort of intentional interference 

with an advantageous economic relationship. Second, they assert 

that, even if the actual malice standard applied here, there is

sufficient evidence in the record from which a jury could infer 

that the mayor acted with malice. The plaintiffs' brief is

silent, however, on the alternative ground supporting the motion 

judge's decision -- i.e., common-law immunity. See Gildea v. 

Ellershaw, 363 Mass. 800, 820 (1973). Accordingly, the issue is 

waived. See Abate v. Fremont Inv. & Loan, 470 Mass. 821, 833 

(2015) (failure to address issue on appeal waives right to 
3

appellate review); Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 

34, 35 n.1 (2005) (same).

Even if the issue were not waived, we agree with the motion 

judge that the mayor is shielded from liability by the commonlaw immunity doctrine. Under Massachusetts common law, "a

public official, exercising judgment and discretion, is not 

liable for negligence or other error in the making of an 

official decision if the official acted in good faith, without 

malice, and without corruption." Nelson v. Salem State College, 

446 Mass. 525, 537 (2006). The mayor's decision to not enter a

host community agreement (HCA)4 on behalf of the city with CKR 

and instead request that the plaintiffs first obtain a special 

permit from the planning board was a discretionary act.5 See 

Mederi, Inc. v. Salem, 488 Mass. 60, 66 (2021) ("a municipality 

4 "A host community agreement is an agreement between the 

prospective marijuana establishment and the host community 

'setting forth the conditions to have a marijuana establishment 

. . . located within the host community.'" CommCan, Inc. v. 

Mansfield, 488 Mass. 291, 292 n.3 (2021), quoting G. L. c. 94G, 

§ 3 (d). "An applicant must provide the commission with proof 

of an HCA as part of its application for a license." Mederi, 

Inc. v. Salem, 488 Mass. 60, 63 (2021), citing 935 Code Mass. 

Regs. § 500.101(1)(a)(8) (2021).

5 The commission requires that applications to operate a retail 

marijuana establishment (RME) include, among other things, 

certification of an HCA with the host municipality, completion 

of a community outreach meeting, and a description of plans to 

ensure compliance with all local codes, ordinances, and bylaws.

935 Code Mass. Regs. § 500.101(1)(a)(8)-(10) (2021).
4

may use its discretion in determining whether to enter into an 

HCA with a prospective retail establishment").

Here, the mayor submitted affidavits stating he requested 

the plaintiffs to first obtain a permit from the planning board 

in response to local opposition to CKR's plans, including 

opposition from a councilor. The burden then shifted to the 

plaintiff to show a dispute of material fact as to malice or bad 

faith. See Godbout v. Cousens, 396 Mass. 254, 261-262 (1985) 

(discussing shifting burdens of proof on summary judgment). The 

plaintiffs did not submit any admissible evidence that the mayor 

harbored any personal hostility or ill will toward the 

plaintiffs. Also absent from the summary judgment record is

evidence that the mayor's decision was motivated by revenge, cf.

Cachopa v. Stoughton, 72 Mass. App. Ct. 657, 665 (2008) (no 

summary judgment on common-law immunity where the plaintiff 

produced evidence from which a jury could infer that official's 

conduct motivated by revenge, raising inference of malice), or a 

"spiteful, malignant purpose, unrelated to [a] legitimate 

[municipal] interest" (citation omitted), Blackstone v. Cashman, 

448 Mass. 255, 263 (2007). Nor has the plaintiff offered 

evidence to support an inference of bad faith. See BuffaloWater 1, LLC v. Fidelity Real Estate Co., 481 Mass. 13, 25-26 

(2018) (bad faith suggests "'a dishonest purpose or some moral 

obliquity,' a 'conscious doing of wrong,' or a 'breach of a 
5

known duty through some motive of interest or ill will'"

[citation omitted]). The plaintiffs' theory that the mayor held 

them to a different standard because of their economic 

empowerment (EE) status6 rests more on conjecture and speculation

than rational inferences of probabilities from established facts

where, as here, there was opposition to the application, and the 

mayor simply asked that the planning board review the 

application.7 See Gram v. Liberty Mut. Ins. Co., 384 Mass. 659, 

6 "Economic empowerment priority applicants are, broadly 

speaking, those applicants from communities that have been 

disproportionately harmed by marijuana law enforcement 

(particularly Black, Hispanic, and Latino communities)." 

Mederi, Inc., 488 Mass. at 62, citing 935 Code Mass. Regs. 

§ 500.002 (2021). "The commission statutorily is required to 

prioritize such applicants." Id., citing G. L. c. 94G, § 4 (a

1/2) (iv). See 935 Code Mass. Regs. § 500.102(2)(a) (2021).

7 The plaintiffs’ argument that the requirement that they obtain 

a special permit in the first instance put them into an "endless 

loop" (because they could not obtain a permit without a

commission application, they could not submit a commission 

application without an HCA, and they could not get an HCA 

without a permit) is unavailing. The argument is premised on 

theoretical hurdles based on regulatory interpretation, rather 

than on a factual record of obstruction. For example, the 

record reflects that the plaintiffs did initiate the commission 

application process, and there is nothing in the record to 

suggest that the planning board refused to consider the

plaintiffs for a special permit due to the absence of a complete 

commission application. We have also considered the plaintiffs' 

argument that the mayor acted unlawfully by entering into an HCA 

with two other parties in October 2018 before either applicant 

had received a special permit from the planning board, while

requiring the plaintiffs to obtain a special permit in the first 

instance. This claim is without merit because no statute, 

regulation, or city ordinance explicitly states the order in 

which an RME applicant must obtain a special permit or an HCA. 

Further, although the statutory and regulatory scheme requires

economic empowerment applicants to receive priority review by 
6

664 (1981), quoting Alholm v. Wareham, 371 Mass. 621, 627 (1976)

("reasonable inference of malice must . . . be 'based on 

probabilities rather than possibilities'"). See also South 

Boston Betterment Trust Corp. v. Boston Redev. Auth., 438 Mass. 

57, 69 (2002) ("there is every presumption in favor of the 

honesty and sufficiency of the motives actuating public officers 

in actions ostensibly taken for the general welfare" [citation 

omitted]).

At bottom, there is insufficient evidence on this record to 

justify a trial on whether the mayor acted in bad faith, with 

malice, or corruptly. See South Boston Betterment Trust Corp., 

438 Mass. at 69. Summary judgment was properly entered for the 

mayor on the plaintiffs' intentional interference claim.

2. Declaratory judgment. The count for declaratory 

judgment was also properly dismissed. At the time of summary 

judgment, the declaratory judgment count applied only to the 

city and the mayor, as the commission had been dismissed from 

the litigation by stipulation of the parties. With respect to 

any declaration concerning the city and the mayor, the complaint 

alleged that the city and/or the mayor violated G. L. c. 94G and 

"abused their powers" by placing unreasonable obstacles before 

the commission, "municipalities, as the de facto gatekeepers to 

such priority application review, are not required to consider 

whether any entity seeking to enter an HCA is an economic 

empowerment priority applicant." Mederi, Inc., 488 Mass. at 72.
7

the plaintiffs to obtain an HCA and by manipulating the process 

to preclude them, as EE priority applicants, from obtaining 

commission approval. Although the complaint alleged that 

declaratory relief was sought "to secure a determination of the 

relative rights, duties, status, and legal relationship of the 

Plaintiffs as EE applicants, the Mayor and/or the City and the 

[commission]" pursuant to G. L. c. 94G, it did not request any 

particular declaration.8 As such, the judge was entirely within 

his discretion in concluding that the request for declaratory 

relief was too amorphous to address. See Everett v. Local 1656, 

Int'l Ass'n of Firefighters, 411 Mass. 361, 369 (1991), citing 

G. L. c. 231A, § 3 (judge, in his discretion, may decline 

declaratory relief if it would serve no useful purpose).9

Judgment affirmed.

By the Court (Vuono, 

Sullivan & Singh, JJ.10),

Clerk

Entered: April 5, 2023.

8 Within the count for declaratory judgment was a request for 

injunctive relief; however, all requests for injunctions were 

against the dismissed party, the commission.

9 We recognize that the judge dismissed the declaratory judgment 

count as moot since necessary parties had been dismissed from 

the litigation and the plaintiffs had no pending application 

with the city. We may affirm on any ground apparent from the 

record. See O’Keeffe v. Dwyer & Duddy, P.C., 100 Mass. App. Ct. 

671, 676 n.10 (2022).

10 The panelists are listed in order of seniority.