Commonwealth v. Dacosta (Lawyers Weekly No. 11-058-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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‑1249 Appeals Court COMMONWEALTH vs. DARCI T. DACOSTA. No. 13‑P‑1249. Worcester. March 7, 2014. ‑ May 30, 2014. Present: Katzmann, Rubin, & Carhart, JJ. Motor Vehicle, Operating under the influence. Evidence, Blood alcohol test, Breathalyzer test, Intoxication. Intoxication. Complaint received and sworn to in the Westborough Division of the District Court Department on July 9, 2012. The case was tried before Andrew M. D’Angelo, J., and a postverdict motion for a required finding of not guilty was heard by him. Jane A. Sullivan, Assistant District Attorney, for the Commonwealth. Darla J. Mondou for the defendant. RUBIN, J. The Commonwealth appeals from a trial court judge’s allowance of defendant Darci T. Dacosta’s motion for a required finding of not guilty following the defendant’s conviction at a jury trial of operating a motor vehicle with a blood alcohol level of .08 percent or greater in violation of G. L. c. 90, § 24(1)(a)(1). See Mass.R.Crim.P. 25(b)(2), as amended, 420 Mass. 1502 (1995) (rule 25[b][2]). The defendant was arrested after the pickup truck he was driving was pulled over for an inspection sticker violation. The officer who pulled the truck over observed that the defendant’s speech was slurred, his eyes were red and glassy, and his breath smelled moderately of alcohol. The officer conducted two field sobriety tests and concluded that the defendant had failed both. The officer placed the defendant under arrest and brought him to the Northborough police station. At the station, the defendant consented to a breathalyzer test. Two tests were administered, each of which showed his blood alcohol level to be .09 percent. The first reading was taken approximately fifty minutes after the defendant was stopped by the police, and the second was taken approximately fifty-five minutes after the stop. The case was submitted to the jury on both the theory of operating a motor vehicle while under the influence of intoxicating liquor, and the theory of a “per se” violation of the statute through the operation of a motor vehicle with a blood alcohol level of .08 percent or more. See G. L. c. 90, § 24(1)(a)(1), as amended through St. 2003, c. 28, § 1 (providing for punishment of any person who “upon any [public] way . . ., operates a motor vehicle with a percentage, by weight, of alcohol in their blood of eight […]
Commonwealth v. Wright (Lawyers Weekly No. 11-056-14)
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‑199 Appeals Court COMMONWEALTH vs. CHRISTOPHER WRIGHT. No. 13‑P‑199. Hampshire. March 11, 2014. ‑ May 29, 2014. Present: Trainor, Brown, & Meade, JJ. Search and Seizure, Motor vehicle, Reasonable suspicion, Threshold police inquiry. Constitutional Law, Search and seizure, Reasonable suspicion. Threshold Police Inquiry. Practice, Criminal, Motion to suppress. Controlled Substances. Indictment found and returned in the Superior Court Department on November 15, 2011. A pretrial motion to suppress evidence was heard by C. Jeffrey Kinder, J., and the case was tried before Richard J. Carey, J. Jennifer Petersen for the defendant. Thomas H. Townsend, Assistant District Attorney, for the Commonwealth. BROWN, J. The defendant was convicted by a jury of trafficking in cocaine.[1] On appeal, he challenges only the motion judge’s order denying his motion to suppress, contending that the State trooper exceeded the permissible scope of a routine traffic stop. We affirm. Background. We summarize the facts the motion judge found, supplemented with uncontested evidence from the motion hearing merely to provide context. See Commonwealth v. Johnson, 82 Mass. App. Ct. 336, 337 (2012). On September 20, 2011, Trooper Brendan Shugrue observed a grey Nissan following very closely behind a white Toyota. Shugrue followed the Nissan, and further observed that the vehicle had tinted windows and New Jersey license plates. Shugrue pulled over the vehicle for following too closely. While at the side of the vehicle, Shugrue smelled a strong odor of air freshener. The defendant was driving, and Mitchell Degroat was a passenger. Shugrue explained why he had pulled over the vehicle and asked the defendant for his driver’s license. The defendant produced a New York license and stated that he and the passenger were traveling to Vermont to visit the defendant’s niece. Degroat professed to own the vehicle, but produced a New Jersey registration indicating that a leasing company was the owner. When Shugrue asked Degroat for identification, he produced an expired, faceless New York driver’s permit. Throughout this encounter, Degroat did not make eye contact with Shugrue. Shugrue then returned to his cruiser to issue the defendant a written warning. Before completing the paperwork, he called for backup to watch the Nissan, as he could not see into the vehicle while sitting in his cruiser, due to the tinted windows on the Nissan. Trooper William Loiselle […]
K.G.M. Custom Homes, Inc. v. Prosky, et al. (Lawyers Weekly No. 10-091-14)
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‑11449 K.G.M. CUSTOM HOMES, INC. vs. STEPHEN J. PROSKY & others.[1] Bristol. February 4, 2014. ‑ May 29, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Contract, Sale of real estate, Performance and breach, Implied covenant of good faith and fair dealing, Damages, Specific performance, Provision for liquidated damages. Real Property, Sale, Purchase and sale agreement, Specific performance. Damages, Breach of contract, Liquidated damages, Attorney’s fees. Practice, Civil, Election of remedies, Attorney’s fees. Civil action commenced in the Superior Court Department on December 21, 2004. The case was heard by Thomas F. McGuire, Jr., J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Michelle N. O’Brien for the plaintiff. Edmund A. Allcock (Haley Byron with him) for the defendants. CORDY, J. On October 12, 1999, the defendants, Stephen J. Prosky, Karen Monteiro, and Joan Stormo (Proskys),[2] executed a purchase and sale agreement with the plaintiff, K.G.M. Custom Homes, Inc. (K.G.M.). The Proskys agreed to sell approximately 45.7 acres of land in Norton to K.G.M. for the purpose of developing residential homes, with the price to be determined by the number of “approved and permitted buildable house lot[s],” and the closing set for twenty-one days “after all final approvals are granted and the expiration of any and all appeal periods.” In or about August, 2004, after a five-year process, during which time K.G.M. worked to gain approval for its development plan, and after a dispute over the calculated sale price, Peter T. Clark, the Proskys’ attorney, falsely told one of K.G.M.’s attorneys that the Proskys had received a higher offer for the property and informed him that K.G.M. should calculate its damages based on the liquidated damages provision of the purchase and sale agreement. K.G.M. filed suit for specific performance. While the suit was pending, K.G.M. received final approval for its plan, and the parties met at the office of K.G.M.’s real estate attorney, Henry J. Sousa, Jr., in an attempt to close on the sale of the property. Due to Clark’s withholding of information in the days leading up to the closing, as well as his behavior at the closing, the parties were unable to close the sale. After a jury-waived trial, a Superior […]
Benson v. Commonwealth (Lawyers Weekly No. 11-057-14)
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‑1134 Appeals Court WILLIAM BENSON vs. COMMONWEALTH. No. 13‑P‑1134. May 29, 2014. Correction Officer. Public Employment, Assault pay benefits, Salary. The plaintiff was employed as an officer at the Suffolk County jail from September 1, 1993, to February 27, 2012. On April 13, 2006, he was injured as a result of inmate violence. Prior to his injury, the plaintiff received a weekend shift differential of one dollar per hour for all regularly scheduled hours worked between 11:00 P.M. on Friday and 11:00 P.M. on Sunday. Prior to July 1, 2006, he received a night shift differential of one dollar per hour for regularly scheduled hours worked during the night shift.[1] The plaintiff also accrued vacation time in exchange for hours worked. As a result of the plaintiff’s injury, he received both workers’ compensation and assault pay benefits. On January 1, 2010, the Suffolk County jail was transferred to the Commonwealth, and the plaintiff’s assault pay benefits were paid pursuant to G. L. c. 30, § 58. On February 3, 2012, the plaintiff filed an action in the Superior Court contending that his assault pay wrongfully excluded his night shift differential, weekend shift differential, holiday pay, and vacation accrual that he previously received as an active employee. He also alleged that the Commonwealth impermissibly reduced his assault pay by $ 960, the total of his outside earnings.[2] The plaintiff moved for summary judgment. The Commonwealth, on a cross motion for summary judgment, argued that the plaintiff’s assault pay was rightfully calculated. The judge granted the plaintiff an additional forty-two dollars per week from February 3, 2009, to December 3, 2011, due to his night shift pay increase, and denied the remainder of his claims. He now appeals. The judge decided the case on cross motions for summary judgment; therefore, we give no deference to her decision and review the order de novo. See Albahari v. Zoning Bd. of Appeals of Brewster, 76 Mass. App. Ct. 245, 248 (2010). The plaintiff argues that his night and weekend shift differentials, in addition to his holiday pay and vacation accruals, should be integrated into his “regular salary” for purposes of calculating his assault pay. We disagree. The purpose of the assault pay statute is “to insure that correctional officers who become disabled in the line of duty […]
Commonwealth v. Lopes (Lawyers Weekly No. 11-052-14)
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‑1661 Appeals Court COMMONWEALTH vs. ROBERT P. LOPES. No. 12‑P‑1661. Berkshire. December 4, 2013. ‑ May 28, 2014. Present: Cypher, Kantrowitz, & Cohen, JJ. Motor Vehicle, Operating under the influence, License to operate. License. Registrar of Motor Vehicles, Revocation of license to operate. Constitutional Law, Confrontation of witnesses. Practice, Criminal, Confrontation of witnesses, Stipulation, Prior conviction, Instructions to jury. Evidence, Prior conviction. Complaint received and sworn to in the Southern Berkshire Division of the District Court Department on August 19, 2011. The case was tried before Rita S. Koenigs, J. Edmund R. St. John, III, for the defendant. John P. Bossé, Assistant District Attorney, for the Commonwealth. COHEN, J. The defendant appeals from two convictions arising from an incident on August 18, 2011: operating a motor vehicle while under the influence of liquor (OUI), fifth offense, pursuant to G. L. c. 90, § 24(1)(a)(1) (count one); and operating a motor vehicle while under the influence of liquor after his license had been suspended (and prior to restoration) for operating a motor vehicle while under the influence of liquor (OUI while OAS for OUI), pursuant to G. L. c. 90, § 23 (count two). With the exception of the subsequent offense portion of count one (which later was tried jury-waived), count one and count two were tried together before a District Court jury in June, 2012. The defendant’s appellate issues all relate to the introduction of evidence of his prior conviction for OUI as part of the Commonwealth’s proof on count two. For the following reasons, we affirm. Background. Prior to trial, the defendant filed a motion to bifurcate the trial so that the jury would first decide count one without hearing evidence, essential to a finding of guilt on count two, that the defendant’s license previously had been suspended or revoked for a prior OUI. The judge denied the motion during a pretrial hearing held on June 18, 2012, but ruled that she would limit the purpose of any such evidence in accordance with Commonwealth v. Beaulieu, 79 Mass. App. Ct. 100, 102-103 (2011). The defendant also filed a motion to exclude evidence of his prior OUI convictions, his chief concern being to prevent their use for impeachment purposes should he elect to testify. The judge ruled that the convictions would not be […]
Ramzi, Inc., et al. v. Department of Public Health (Lawyers Weekly No. 11-053-14)
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‑1450 Appeals Court RAMZI, INC.,[1] & others[2] vs. DEPARTMENT OF PUBLIC HEALTH. No. 12‑P‑1450. Worcester. December 6, 2013. ‑ May 28, 2014. Present: Fecteau, Sullivan, & Maldonado, JJ. Department of Public Health. Public Welfare, Food stamp benefits. Regulation. Notice. Commonwealth, Contracts. Contract, With Commonwealth. Administrative Law, Agency’s interpretation of regulation. Civil action commenced in the Superior Court Department on October 20, 2010. The case was heard by Richard T. Tucker, J., on a motion for judgment on the pleadings. John M. Goggins for the plaintiffs. Iraida J. Alvarez, Assistant Attorney General, for the defendant. SULLIVAN, J. Ramzi, Inc., doing business as North End Market, Nahed Benyamin, and Emad Benyamin (collectively, Ramzi) appeal from a judgment of the Superior Court affirming, in pertinent part, a decision of the Division of Administrative Law Appeals (DALA) upholding a determination of the Department of Public Health (department) to disqualify Ramzi as a WIC vendor for three years and to terminate Ramzi’s WIC vendor status. On appeal, Ramzi contends that the judge erred as a matter of law in affirming the DALA decision. We conclude that an amendment to the governing statute, and ensuing regulatory changes, require a remand to DALA for further consideration of so much of its decision disqualifying Ramzi for a three-year period. Accordingly, we affirm in part and reverse in part. Background. The undisputed facts are set forth in the administrative record and are summarized as follows. 1. The regulatory scheme. WIC is a federally funded supplemental food program for income-eligible women, infants, and children. The program, which is administered by the States, provides WIC checks redeemable in grocery stores, pharmacies, and farmers’ markets for approved foods. See 42 U.S.C. § 1786 (2012); 7 C.F.R. § 246.1 (2009). In the Commonwealth, WIC is administered by the department, subject to regulations promulgated by the United States Department of Agriculture (Department of Agriculture). See 42 U.S.C. § 1786(b)(12) & (f); 7 C.F.R. §§ 246.1 & 246.3(b). 2. Vendor agreements and compliance monitoring. The department’s vendor agreement incorporates pertinent regulatory requirements applicable to WIC vendors. The department and Ramzi entered into a vendor agreement, which outlines the responsibilities of a WIC vendor and potential violations and penalties for those violations, as set forth in the Federal regulations. 7 C.F.R. § 246.12(h)(1)(i) & (h)(3)(i)-(xxv). Upon entering into the vendor […]
Callahan v. Callahan (Lawyers Weekly No. 11-054-14)
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‑178 Appeals Court APRIL B. CALLAHAN vs. RICHARD E. CALLAHAN. No. 13‑P‑178. Hampden. April 2, 2014. ‑ May 28, 2014. Present: Grasso, Kafker, & Graham, JJ. Abuse Prevention. Complaint for protection from abuse filed in the Hampden Division of the Probate and Family Court Department on July 6, 2010. Motions to extend and to modify or terminate an abuse prevention order were heard by David G. Sacks, J. Richard E. Callahan, pro se. GRASSO, J. At issue is whether a Probate and Family Court judge abused his discretion in extending (and refusing to modify or terminate) an abuse prevention order issued under G. L. c. 209A when the subject of that order was also serving a prison sentence for crimes of violence against the plaintiff who obtained the order. We conclude that the judge did not err and affirm. 1. Background. On July 6, 2010, April B. Callahan sought and received an abuse and prevention order against her then husband, Richard E. Callahan, in the Hampden Division of the Probate and Family Court. The order directed Richard to refrain from abusing April and to vacate and remain away from the marital home, awarded April physical custody of their minor child, and provided visitation to Richard. On July 19, 2010, April moved to amend the order to include no contact with the child. After a hearing at which both parties were present, a judge allowed the motion, modified the order, and continued the matter for further hearing on August 4, 2010. Later in the day on July 19, 2010, Richard violated the order and was arrested for crimes of violence against April, discussed at greater length below. Although held on bail, Richard appeared at the modification hearing held on August 4, 2010, at which the judge scheduled a review of the order modifications for September 22, 2010. On September 22, 2010, after further hearing at which both parties appeared, a judge modified the order to include a provision directing Richard not to contact April, to stay twenty-five yards away from her, and to stay away from her workplace. As so modified the order extended to July 6, 2011, which marked one year from the date of the initial order. On July 6, 2011, the abuse prevention order was extended for an additional […]
Hoort v. Hoort (Lawyers Weekly No. 11-055-14)
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‑1853 Appeals Court NANCY E. HOORT vs. STEVEN T. HOORT. No. 12‑P‑1853. Plymouth. March 12, 2014. ‑ May 28, 2014. Present: Vuono, Grainger, & Agnes, JJ. Contempt. Practice, Civil, Contempt. Divorce and Separation. Taxation, Income tax. Complaint for divorce filed in the Plymouth Division of the Probate and Family Court Department on October 1, 2007. A complaint for contempt was heard by Catherine P. Sabaitis, J. Brian J. Kelly for Steven T. Hoort. Elaine M. Epstein for Nancy E. Hoort. GRAINGER, J. Steven Hoort (husband), the former husband of Nancy Hoort (wife), appeals from a judgment of contempt entered by a judge of the Probate and Family Court. At issue on appeal is the interpretation of language contained in a temporary order that was in effect for a two-year period during the parties’ divorce proceedings requiring the husband to pay the wife “a sum equal to one-third of his year end distribution after taxes.” Background. The parties were married for thirty-one years, although they lived separately during the last two of those years. The husband is a partner in a large law firm; the wife does not work outside the home. In 2007, the wife filed a complaint for divorce on the ground of irretrievable breakdown of the marriage. On October 20, 2008, the court entered the temporary order here in dispute. We review the husband’s compensation structure as it is relevant to the parties’ arguments on appeal. The husband’s approximate annual compensation in 2008 was $ 970,000. The husband’s annual compensation includes the following types of draws or distributions: (1) a $ 10,000 monthly draw; (2) three “tax draws” in the amount of approximately $ 110,000 paid in April, June, and September; and (3) a year-end distribution that is received in January of the following year. The husband’s year-end distributions for 2008 and 2009 — the two years pertinent to the dispute — were $ 245,023 and $ 249,934 respectively. The first complaint for contempt. In January, 2009, the husband received his 2008 year-end distribution. In July, 2009, the wife filed a complaint for contempt asserting that the husband had failed to pay one-third of his 2008 year-end distribution as directed by the court’s temporary order. The contempt action was consolidated with the divorce trial. Following a consolidated trial, […]
Commonwealth v. Ericson (Lawyers Weekly No. 11-050-14)
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‑1639 Appeals Court COMMONWEALTH vs. KEITH ERICSON. No. 12‑P‑1639. Middlesex. December 11, 2013. ‑ May 23, 2014. Present: Green, Sikora, & Milkey, JJ. Obscenity, Dissemination of matter harmful to minor. Practice, Criminal, Motion to suppress, Warrant, Probation. Cellular Telephone. Search and Seizure, Plain view, Warrant. Evidence, Intent. Intent. Indictments found and returned in the Superior Court Department on February 1, 2011. A pretrial motion to suppress evidence was heard by Sandra L. Hamlin, J., and the cases were tried before her. Michael A. Nam‑Krane for the defendant. Michael A. Kaneb, Assistant District Attorney (Patrick Fitzgerald, Assistant District Attorney, with him) for the Commonwealth. SIKORA, J. A Superior Court jury convicted the defendant, Keith Ericson, of soliciting, enticing, or encouraging a child to pose in a state of nudity, G. L. c. 272, § 29A(a), as appearing in St. 1988, c. 226, § 1, and of possession of matter harmful to minors with intent to disseminate, G. L. c. 272, § 28, as appearing in St. 1982, c. 603, § 2. He challenges the convictions upon multiple grounds. For the following reasons, we affirm. Factual background. The relevant evidence in the light most favorable to the Commonwealth was the following. See Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979). On the afternoon of September 25, 2010, the defendant approached A.S., a sixteen year old female, and her boyfriend in a park in the town of Burlington. The defendant claimed to have lost his cellular telephone (cell phone) and asked to borrow A.S.’s cell phone. At the defendant’s direction, A.S. placed a number of calls to the defendant’s phone. Each call ended with a voice-mail greeting for the construction company “H Super Construction” or “Super Construction.” After five or ten minutes, the defendant reported that he had located his phone. Upon leaving the park, A.S. observed the defendant’s black pickup truck. The license plate read “H Super,” and the truck had a Superman symbol emblazoned on its side. Later that afternoon, A.S. began to receive text messages from the defendant’s cell phone. The messages included a number of personal questions. The defendant asked A.S. her name and age, whether she had a boyfriend, and whether she smoked or drank. After A.S. responded that she was sixteen years old and that she did not drink or smoke, the defendant […]
Walker v. Collyer, et al. (Lawyers Weekly No. 11-051-14)
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‑1898 Appeals Court CHARLES G. WALKER vs. JENNIFER COLLYER, administratrix,[1] & others.[2] No. 12‑P‑1898. Suffolk. September 13, 2013. ‑ May 23, 2014. Present: Cohen, Katzmann, & Agnes, JJ. Arbitration, Appeal of order compelling arbitration, Authority of arbitrator, Arbitrable question. Contract, Arbitration. Nursing Home. Medical Malpractice, Contract with doctor. Estoppel. Agency, Liability of agent, Independent contractor. Civil action commenced in the Superior Court Department on January 25, 2012. The case was heard by Carol S. Ball, J. Curtis R. Diedrich for the plaintiff. Scott D. Peterson for Jennifer Collyer. John J. Barter, for Professional Liability Foundation, Ltd., amicus curiae, submitted a brief. KATZMANN, J. Charles Walker, a physician, seeks to avoid being compelled to arbitrate a medical malpractice claim brought by the representative of a deceased patient, Karl Collyer. Walker treated Karl at The Oaks Nursing Center (The Oaks or the facility), a facility at which Walker practices medicine and serves as subacute rehabilitation (rehab) program medical director. Karl and the facility signed an arbitration agreement covering disputes arising from his treatment; Walker did not sign the agreement. In the Superior Court, Walker challenged an arbitrator’s order compelling him to participate in an arbitration proceeding commenced pursuant to the agreement. He now appeals from the judgment entered in the Superior Court affirming the arbitrator’s decision ordering Walker to arbitration. We conclude that the question whether Walker was bound by the arbitration agreement despite being a nonsignatory was a question for the court and not the arbitrator. We further conclude, based upon the undisputed material facts, that Walker is not bound by the agreement. While our courts have determined that under some circumstances a party who did not sign an arbitration agreement can take advantage of an agreement signed by an allied party to compel a signatory to arbitrate, we have not decided the question in the converse that is posed by this case: Can a signatory to an arbitration agreement compel a nonsignatory to arbitrate by virtue of the agreement that he has not signed? Other courts, particularly the Federal courts, have considered such situations, enumerating the circumstances in which a signatory can compel a nonsignatory to arbitrate. We find persuasive the framework laid out clearly by the Federal courts and hold that Collyer, as administratrix of Karl’s […]