Lighthouse Masonry, Inc., et al. v. Division of Administrative Law Appeals, et al. (Lawyers Weekly No. 10-204-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11318 LIGHTHOUSE MASONRY, INC., & another[1] vs. DIVISION OF ADMINISTRATIVE LAW APPEALS & another.[2] Suffolk. September 9, 2013. ‑ December 31, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Labor, Public works, Wages. Public Works, Wage determination. Attorney General. Division of Administrative Law Appeals. Administrative Law, Decision. Civil action commenced in the Superior Court Department on August 26, 2008. The case was heard by Mitchell H. Kaplan, J., on motions for summary judgment. The Supreme Judicial Court granted an application for direct appellate review. Harvey B. Heafitz (Scott K. Semple with him) for the plaintiffs. Richard C. Heidlage, Special Assistant Attorney General, for Division of Administrative Law Appeals. Karla E. Zarbo, Assistant Attorney General (Bruce Trager, Assistant Attorney General, with her) for the Attorney General. The following submitted briefs for amici curiae: Christopher C. Whitney & Scott K. Pomeroy for Associated Builders & Contractors, Massachusetts Chapter. Donald J. Siegel & James A.W. Shaw for Massachusetts Building Trades Council. Patricia A. DeAngelis, Special Assistant Attorney General, for Department of Labor Standards. BOTSFORD, J. This case primarily concerns the process governing appeals from civil citations issued by the Attorney General for alleged violations of the Commonwealth’s prevailing wage law, G. L. c. 149, §§ 26-27H. The plaintiffs, Lighthouse Masonry, Inc., and its president, Peter Alves (collectively, Lighthouse), appeal from a Superior Court judgment that affirmed a prevailing wage law decision of a Division of Administrative Law Appeals (DALA) hearing officer under G. L. c. 149, § 27C (b) (4) (§ 27C [b] [4]). We consider here two interrelated questions about the DALA administrative hearing process directly raised in Lighthouse’s appeal: whether the chief administrative magistrate of DALA has authority to review and approve a proposed decision of a DALA hearing officer in a § 27C (b) (4) appeal before the final decision is issued; and if so, whether, when a hearing officer of DALA resigns after drafting a decision on an appeal under § 27C (b) (4) but before the issuance of a final decision, another DALA hearing officer may take over responsibility for deciding the appeal. We also consider Lighthouse’s challenge on substantive grounds to the affirmance of one of the civil citations issued against it by the Attorney General. We leave for resolution […]
Categories: News Tags: 1020413, Administrative, Appeals, Division, Inc., Lawyers, Lighthouse, Masonry, Weekly
Commonwealth v. Povez (Lawyers Weekly No. 11-150-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑998 Appeals Court COMMONWEALTH vs. JANLEER POVEZ. No. 12‑P‑998. Worcester. September 16, 2013. ‑ December 31, 2013. Present: Kantrowitz, Sikora, & Hines, JJ. Jury and Jurors. Practice, Criminal, Jury and jurors, Challenge to jurors, Instructions to jury. Intoxication. Indictments found and returned in the Superior Court Department on June 25, 2008. The cases were tried before Janet Kenton-Walker, J. Leslie W. O’Brien for the defendant. Michelle R. King, Assistant District Attorney (Lisa Casella, Assistant District Attorney, with her) for the Commonwealth. KANTROWITZ, J. Charged with murder in the first degree, the defendant, Janleer Povez, was found guilty of murder in the second degree.[1] He appeals, claiming error in (1) the allowance of a peremptory challenge of a prospective Hispanic juror; (2) the judge’s failure to order, sua sponte, a competency examination; and (3) the instructions provided to the jury. As we are constrained to agree with the defendant on his first claim, we reverse. Facts. On April 21, 2008, Jack McGuire was a victim of a drug deal gone wrong. That morning, shortly after midnight, McGuire went to an area known for drug dealing, a parking lot of a local Dunkin’ Donuts, to purchase “crack” cocaine. Eventually, he met with Lance Savage, a drug middle-man, and asked if Savage could secure one hundred dollars’ worth of crack cocaine. Savage called the defendant, who agreed to meet at a convenience store in Worcester. A short time later, the defendant and his girlfriend met Savage and McGuire at the prearranged destination and entered McGuire’s car. Savage told the defendant that McGuire wanted “six for a hundred,” or six twenty-dollar “rocks” of crack cocaine for one hundred dollars, but McGuire first wanted to “taste it.” McGuire then drove the car to a secluded location and sampled the drug. Satisfied with the “hit,” McGuire said, “[l]et me get the rest . . . .” The defendant handed over the remaining rocks. Suddenly, McGuire pulled a gun from his left side and shouted for the occupants to “[g]et the fuck out the [sic] car.” The defendant and his girlfriend jumped out. Savage stayed in and a struggle ensued. The defendant shouted to Savage: “Get him, . . . get him. Pull him out the [sic] car.” Soon both combatants were out of the car and still fighting despite […]
Commonwealth v. Rose (Lawyers Weekly No. 11-149-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13‑P‑347 Appeals Court COMMONWEALTH vs. MICHAEL D. ROSE. No. 13‑P‑347. December 24, 2013. Controlled Substances. Conspiracy. Constitutional Law, Double jeopardy. Practice, Criminal, Double jeopardy, Duplicative convictions. The defendant appeals from an order denying his motion seeking to vacate his conviction on a charge of conspiracy to violate drug laws, entered as part of a plea agreement, based on a claim that it is duplicative of his conviction on a charge of distribution of cocaine. We affirm the order, as the two charges are neither legally nor, on the recitation of facts supporting the guilty pleas in the present case, factually duplicative. Duplicative convictions violate the double jeopardy clause of the Fifth Amendment to the United States Constitution. “The traditional rule in Massachusetts, as embodied in Morey v. Commonwealth, 108 Mass. 433, 434 (1871) (Morey), and its progeny, is that ‘a defendant may properly be punished for two crimes arising out of the same course of conduct provided that each crime requires proof of an element that the other does not.’” Commonwealth v. Vick, 454 Mass. 418, 431 (2009), quoting from Commonwealth v. Valliere, 437 Mass. 366, 371 (2002). “It is well settled that, on its face, conspiracy is a separate and distinct crime from the substantive offense.” Commonwealth v. D’Amour, 428 Mass. 725, 747 (1999). That is because “[t]he conspiracy charge require[s] proof of an agreement and the substantive charge [does] not,” Commonwealth v. DeCillis, 41 Mass. App. Ct. 312, 314 (1996), quoting from Commonwealth v. Cannavo, 16 Mass. App. Ct. 977, 978 (1983), but the conspiracy charge does not require proof of completion of the substantive crime. A conspiracy charge nonetheless may be duplicative of the substantive offense if in the circumstances of a particular case both are in actuality the same offense. See Commonwealth v. D’Amour, 428 Mass. at 747-749 (“entire crime of conspiracy is subsumed by the crime of accessory before the fact to murder on a hiring theory”). The defendant contends that the present case presents such circumstances, since (he asserts) the recitation of facts furnished by the Commonwealth in support of his guilty pleas described no agreement other than as implied by the defendant’s participation in the sale of cocaine that was the basis for the distribution charge. In summary form, those facts include […]
Diatcehnko v. District Attorney for the Suffolk District, et al. (Lawyers Weekly No. 10-202-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11453 GREGORY DIATCHENKO vs. DISTRICT ATTORNEY FOR THE SUFFOLK DISTRICT & others.[1] Suffolk. September 4, 2013. ‑ December 24, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Constitutional Law, Sentence, Cruel and unusual punishment, Parole, Retroactivity of judicial holding. Due Process of Law, Sentence, Parole. Parole. Retroactivity of Judicial Holding. Homicide. Practice, Criminal, Sentence, Parole, Retroactivity of judicial holding, Capital case. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on March 19, 2013. The case was reported by Botsford, J. Benjamin H. Keehn, Committee for Public Counsel Services, for the petitioner. John P. Zanini, Assistant District Attorney, for District Attorney for the Suffolk District. Amy L. Karangekis, Assistant Attorney General, for chair of the Massachusetts Parole Board & another. The following submitted briefs for amici curiae: Timothy J. Cruz, District Attorney, & Robert C. Thompson, Assistant District Attorney, for District Attorney for the Plymouth District. Annie L. Owens, of the District of Columbia, & Emily R. Schulman for Massachusetts Association of Criminal Defense Lawyers & others. David J. Apfel & Kunal Pasricha for American Civil Liberties Union of Massachusetts & others. Kenneth J. Parsigian, Steven J. Pacini, & Amy E. Feinman for Citizens for Juvenile Justice & others. John J. Barter for Herby J. Caillot. SPINA, J. On the evening of May 9, 1981, Gregory Diatchenko, who was seventeen years old at the time, stabbed Thomas Wharf nine times as Wharf sat in his red Cadillac automobile near Kenmore Square in Boston. Wharf was pronounced dead at 10:40 P.M. A Superior Court jury convicted Diatchenko of murder in the first degree on theories of deliberate premeditation, extreme atrocity or cruelty, and felony-murder (armed robbery). He was sentenced to a mandatory term of life imprisonment without the possibility of parole, pursuant to G. L. c. 265, § 2.[2] On direct appeal, this court affirmed Diatchenko’s conviction. See Commonwealth v. Diatchenko, 387 Mass. 718, 719 (1982). Among other claims, we rejected his contention that his sentence violated the Eighth and Fourteenth Amendments to the United States Constitution and art. 26 of the Massachusetts Declaration of Rights.[3] Id. at 721-727. Diatchenko’s conviction thus became final.[4] Thirty years later, the United States Supreme Court decided Miller v. Alabama, 132 S. Ct. 2455 (2012) […]
Commonwealth v. Brown (Lawyers Weekly No. 10-203-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11454 COMMONWEALTH vs. MARQUISE BROWN. Middlesex. September 4, 2013. ‑ December 24, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Constitutional Law, Sentence, Cruel and unusual punishment, Parole, Severability. Due Process of Law, Sentence, Parole. Parole. Homicide. Practice, Criminal, Sentence, Parole, Capital case. Statute, Severability. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on December 6, 2012. The case was reported by Botsford, J. Michael A. Kaneb, Assistant District Attorney (Christopher M. Tarrant & Robert J. Bender, Assistant District Attorneys, with him) for the Commonwealth. Barbara Kaban, Committee for Public Counsel Services, for the defendant. The following submitted briefs for amici curiae: Marsha L. Levick, Emily C. Keller, & Lauren A. Fine, of Pennsylvania, for Juvenile Law Center & others. Timothy J. Cruz, District Attorney, & Robert C. Thompson, Assistant District Attorney, for District Attorney for the Plymouth District. David J. Apfel & Kunal Pasricha for American Civil Liberties Union of Massachusetts & others. Kenneth J. Parsigian, Steven J. Pacini, & Amy E. Feinman for Citizens for Juvenile Justice & others. John J. Barter for Herby J. Caillot. SPINA, J. This case is before us on a reservation and report from a single justice. We must determine the effect of the United States Supreme Court’s recent decision in Miller v. Alabama, 132 S. Ct. 2455 (2012), on the sentencing of juvenile defendants convicted of murder in the first degree under G. L. c. 265, § 1. In Miller, the Supreme Court held that the mandatory imposition of life-without-parole sentences on homicide offenders who were juveniles at the time of their crimes violates the bar against cruel and unusual punishment under the Eighth Amendment to the United States Constitution. Miller, 132 S. Ct. at 2469. Additionally, we held today in Commonwealth v. Diatchenko, ante at , (2013), that all life-without-parole sentences for juvenile offenders, whether mandatory or discretionary, violate art. 26 of the Massachusetts Declaration of Rights. We now hold that Brown is entitled to the benefit of Miller and Diatchenko and that he may not be sentenced to life without parole. He may only be sentenced to the lesser punishment under G. L. c. 265, § 2, of mandatory life in prison with the possibility of parole set pursuant to the parole eligibility statute in effect at the […]
Commonwealth v. Mogelinski (Lawyers Weekly No. 10-200-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11331 COMMONWEALTH vs. MATTHEW MOGELINSKI. Franklin‑Hampshire. September 3, 2013. ‑ December 23, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Juvenile Court, Jurisdiction, Delinquent child. Jurisdiction, Juvenile Court, Juvenile delinquency proceeding. Practice, Criminal, Juvenile delinquency proceeding, Transfer hearing, Issuance of process, Complaint, Indictment. Delinquent Child. Youthful Offender Act. Words, “Apprehension.” Indictments found and returned in the Superior Court Department on December 5, 2011. After transfer to the Franklin and Hampshire Counties Division of the Juvenile Court Department, questions of law were reported to the Appeals Court by Judith J. Phillips, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Jeffrey S. Brown for the defendant. Cynthia M. Pepyne, Assistant District Attorney, for the Commonwealth. John Cushman & Patricia Garin, for Committee for Public Counsel Services, amicus curiae, submitted a brief. LENK, J. This case concerns the jurisdiction of the Juvenile Court.[1] The Commonwealth filed five delinquency complaints against the defendant when he was seventeen, charging him with rape of a child under sixteen, G. L. c. 265, § 23, and indecent assault and battery on a child under fourteen, G. L. c. 265, § 13B, based on an alleged seven-year period of sexual abuse of the victim. Although summonsed into court on those complaints while still seventeen years old, the defendant had turned eighteen by the time of his first scheduled court appearance and arraignment. More than six months later, the Commonwealth obtained youthful offender indictments against the defendant, based on the portion of the alleged abuse that took place when he was between fourteen and seventeen years old. Pursuant to Mass. R. Crim. P. 34, as amended, 442 Mass. 1501 (2004), a judge of the Juvenile Court reported four questions concerning issues of the Juvenile Court’s jurisdiction: “1. Whether the term ‘apprehended’ as appearing in G. L. c. 119, § 72[,] and G. L. c. 119, § 72A[,] refers to the time when a complaint is issued against an individual, or to when an individual is summoned for arraignment, or when an individual voluntarily appears in response to a summons or complaint and submits to the jurisdiction of the court at arraignment, or when an individual is arrested, or taken into custody pursuant to a complaint issued by the court? “2. Whether an individual may be indicted […]
Categories: News Tags: 1020013, Commonwealth, Lawyers, Mogelinski, Weekly
A Juvenile v. Commonwealth (Lawyers Weekly No. 10-201-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11585 A JUVENILE vs. COMMONWEALTH. December 23, 2013. Supreme Judicial Court, Superintendence of inferior courts, Appeal from order of single justice. Juvenile Court, Delinquent child. Practice, Criminal, Juvenile delinquency proceeding, Transfer hearing. Delinquent Child. A juvenile against whom a delinquency complaint has issued in the Juvenile Court, charging him with certain offenses, appeals from a judgment of a single justice of this court denying, without a hearing, his petition for relief under G. L. c. 211, § 3. We affirm. The alleged offenses occurred when the juvenile was sixteen years old. The Commonwealth has moved for a transfer hearing pursuant to G. L. c. 119, § 72A, which applies to juvenile offenders who are apprehended after their eighteenth birthdays. Under the statute, a Juvenile Court judge, after making a probable cause determination, has discretion either to order that the juvenile be discharged or to “dismiss the delinquency complaint and cause a criminal complaint to be issued.”[1] The juvenile moved to dismiss the charges on the ground that there had been prejudicial delay in apprehending him. The motion was denied. The juvenile’s G. L. c. 211, § 3, petition sought relief from that denial. The case is before us pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), which requires an appellant in these circumstances to “set forth the reasons why review of the trial court decision cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other available means.”[2] The juvenile has not carried his burden under the rule. It is well established that “[t]he denial of a motion to dismiss in a criminal case is not appealable until after trial, and we have indicated many times that G. L. c. 211, § 3, may not be used to circumvent that rule. Unless a single justice decides the matter on the merits or reserves and reports it to the full court, neither of which occurred here, a defendant cannot receive review under G. L. c. 211, § 3, from the denial of his motion to dismiss.” Limbaugh v. Commonwealth, 465 Mass. 1018, 1019 (2013), quoting Bateman v. Commonwealth, 449 Mass. 1024, 1024-1025 (2007). We see no reason why the same should not be true of the denial of a motion to dismiss in a juvenile delinquency case. The juvenile […]
Reznik v. Garaffo, et al. (Lawyers Weekly No. 10-199-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11509 MARK REZNIK vs. RICHARD T. GARAFFO & others.[1] December 20, 2013. Practice, Civil, Intervention, Interlocutory appeal. Mark Reznik filed a petition pursuant to G. L. c. 211, § 3, in the county court seeking, among other things, an order compelling the Superior Court to accept his notice of appeal from an order denying his motion to intervene in the underlying Superior Court action.[2] Reznik had sought to intervene in the underlying case pursuant to Mass. R. Civ. P. 24 (a) (2) and (b) (2), 365 Mass. 769 (1974). When he attempted to filed a notice of appeal from that ruling, however, a second Superior Court judge ordered that the notice of appeal be returned on the ground that Reznik was not a party to the case. Reznik then attempted to file a notice of appeal from that order, which likewise was returned. Reznik’s claim that he improperly was denied an opportunity to appeal has merit. An “interlocutory order denying intervention as of right under Mass. R. Civ. P. 24 (a), 365 Mass. 769 (1974), is immediately appealable, see, e.g., Massachusetts Fed’n of Teachers v. School Comm. of Chelsea, 409 Mass. 203, 204 (1991), and when there is an appeal from a denial of a claim of intervention as of right, the court also generally considers the denial of a request for permissive intervention under Mass. R. Civ. P. 24 (b), 365 Mass. 769 (1974).” Care & Protection of Richard, 456 Mass. 1002, 1002 (2010). The parties agree that Reznik’s motion was predicated on both rule 24 (a) (2) and (b) (2). His right to appeal was effectively cut off, however, because his multiple notices of appeal were refused for filing and returned to him. We are satisfied that further attempts in the trial court to remedy the situation would have been futile, and therefore relief under G. L. c. 211, § 3, was warranted. See Reznik v. District Court Dep’t of the Trial Court, 456 Mass. 1001, 1001 (2010); Elles v. Zoning Bd. of Appeals of Quincy, 450 Mass. 671, 673 n.8 (2008); Driscoll v. T.R. White Co., 441 Mass. 1009, 1010 (2004). The substantive merits of Reznik’s appeal from the denial of his motion to intervene are not before us. While we express no opinion on the merits of […]
Commonwealth v. Hunt (and three companion cases) (Lawyers Weekly No. 11-148-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑544 Appeals Court COMMONWEALTH vs. SHAWN HUNT (and three companion cases[1]). No. 12‑P‑544. Bristol. April 10, 2013. ‑ December 20, 2013. Present: Rubin, Fecteau, & Hines, JJ. Homicide. Grand Jury. Practice, Criminal, Grand jury proceedings, Conduct of prosecutor, Disclosure of evidence, Indictment, Dismissal, Capital case. Evidence, Grand jury proceedings, Testimony before grand jury, Identification, Exculpatory, Disclosure of evidence, Credibility of witness, Prior inconsistent statement, Indictment. Identification. Indictments found and returned in the Superior Court Department on January 23, 2009. Motions to dismiss the indictments were heard by Gary A. Nickerson, J. William M. McCauley, Assistant District Attorney (Tara L. Blackman, Assistant District Attorney, with him) for the Commonwealth. Joseph F. Krowski for Jonathan Michael Pittman. Robert S. Sinsheimer for Shawn Hunt. HINES, J. The defendants, Shawn Hunt and Jonathan Michael Pittman, were indicted for murder in the first degree and carrying a firearm without a license by a Bristol County grand jury. After a grand jury witness, the victim’s mother, admitted to fabricating her identification of the defendants as the perpetrators of the crime, a judge allowed the defendants’ motions to dismiss the indictments without prejudice. The Commonwealth now appeals from the order allowing the motions to dismiss, claiming that the judge erred in ruling that the presentation of the witness’s false identification impaired the integrity of the grand jury proceedings. Although we conclude that the judge committed no error in his assessment of the Commonwealth’s conduct in presenting the evidence to the grand jury, we reverse because the evidence was otherwise sufficient to sustain the indictment. 1. Background. On November 20, 2003, Alberto “Tito” Gonzalez was killed by shots fired from a passing motor vehicle in New Bedford. In the immediate aftermath of the crime, the police investigation identified the defendants as possible suspects. The Bristol County district attorney, however, declined to present the case against these defendants (hereinafter, the Gonzalez case) to a grand jury. Almost five years later, a newly elected district attorney presented the Gonzalez case to three successive grand juries, culminating on January 23, 2009, in indictments of the defendants for murder in the first degree and carrying a firearm without a license. On the eve of trial, the Commonwealth learned that Fernanda Gonzalez, the victim’s mother, had fabricated her grand jury testimony identifying Pittman […]
Bank of America, N.A. v. Rosa (and three consolidated cases) (Lawyers Weekly No. 10-198-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11330 BANK OF AMERICA, N.A. vs. CEFERINO S. ROSA (and three consolidated cases[1]). Essex. September 9, 2013. ‑ December 18, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Mortgage, Foreclosure. Summary Process. Housing Court, Jurisdiction. Practice, Civil, Summary process, Affirmative defense, Counterclaim and cross‑claim. Jurisdiction, Summary process, Housing Court, Equitable. Uniform Summary Process Rules. Rules of Civil Procedure. Statute, Construction. Summary process. Complaints filed in the Northeast Division of the Housing Court Department, two on February 6, 2012, and one each on January 20, 2012, and April 2, 2012, respectively. Motions to strike and to dismiss affirmative defenses and counterclaims were heard by David D. Kerman, J. Proceedings for interlocutory review were heard in the Appeals Court by Mary T. Sullivan, J., and the cases were consolidated and reported by her to the Appeals Court. The Supreme Judicial Court granted an application for direct appellate review. Phoebe N. Coddington, of North Carolina (Jennifer E. Greaney & Stephen C. Reilly with her) for Bank of America, N.A., & another. Thomas J. Santolucito (Rachel B. Meisterman with him) for Federal Home Loan Mortgage Corporation. Richard M.W. Bauer (Eloise P. Lawrence with him) for Ceferino S. Rosa & others. Marylyn E. Flores (David S. Flores with her) for Gerard J. Cioffi. Benjamin O. Adeyinka, for The Real Estate Bar Association of Massachusetts, Inc., & another, amici curiae, submitted a brief. Arielle Cohen & Charles Delbaum, for National Consumer Law Center, amicus curiae, submitted a brief. SPINA, J. In each of these consolidated appeals the plaintiff bank brought a summary process action against the former homeowner-mortgagor in the Housing Court after foreclosure. Each former homeowner raised various defenses and counterclaims in his or her answer to the complaint that challenged the bank’s right to both possession and title as derived through foreclosure sale, as well as other defenses and counterclaims. In each case the bank filed a motion to strike the affirmative defenses and to dismiss the counterclaims on grounds that the only defenses and counterclaims available in summary process are (1) those allowed by G. L. c. 239, § 8A, which does not apply here because there was no landlord-tenant relationship between the parties, and (2) a challenge to title (and thereby possession) based only on a failure to comply […]