City of Brockton v. Energy Facilities Siting Board (No. 1) (and two consolidated cases) (Lawyers Weekly No. 10-131-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-11406 CITY OF BROCKTON vs. ENERGY FACILITIES SITING BOARD (No. 1) (and two consolidated cases[1]). Suffolk. March 4, 2014. – July 31, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.[2] Energy Facilities Siting Board. Public Utilities, Energy company, Electric company. Electric Company. Massachusetts Environmental Policy Act. Administrative Law, Decision, Judicial review, Substantial evidence. Environment, Air pollution, Environmental impact report. Municipal Corporations, Electric plant, Water supply. Civil actions commenced in the Supreme Judicial Court for the county of Suffolk on August 24, August 28, and September 2, 2009. After consolidation, the case was reported by Spina, J. Lisa C. Goodheart (Phelps T. Turner, Joshua D. Nadreau, & Staci Rubin with her) for Frank J. Babbin & others. John L. Holgerson for town of West Bridgwater. Gregor I. McGregor (Nathaniel Stevens with him) for city of Brockton. Sookyoung Shin, Assistant Attorney General, for Energy Facilities Siting Board. David S. Rosenzweig (Erika J. Hafner & Michael J. Koehler with him) for Brockton Power Company LLC. The following submitted briefs for amici curiae: Veronica Eady for Conservation Law Foundation. Rahsaan D. Hall, Matthew Cregor, Sasha N. Kopf, Tyler D. Crosby, & Priya A. Lane for Lawyers’ Committee for Civil Rights and Economic Justice. Wendy B. Jacobs & Aladdine D. Joroff for Hands Across the River Coalition. BOTSFORD, J. Brockton Power Company LLC (Brockton Power, or company) filed a petition pursuant to G. L. c. 164, § 69J¼ (§ 69J¼), with the Energy Facilities Siting Board (board) to construct and operate a 350-megawatt combined-cycle energy generating facility (facility) powered by natural gas and ultra-low sulfur distillate (ULSD) on a 13.2-acre lot in the city of Brockton (city). After extensive hearings, the board approved Brockton Power’s petition, with conditions. The city, the town of West Bridgewater (town), and a group of residents of the city and the town (residents), all interveners in the proceedings before the board (collectively, interveners), filed appeals in the county court pursuant to G. L. c. 164, § 69P, and G. L. c. 25, § 5.[3] A single justice reserved and reported the case to the full court.[4] On appeal the interveners argue[5] that the board (1) failed to adopt and apply the 2002 environmental justice policy that is a binding environmental protection policy of the Commonwealth; (2) improperly relied on the National Ambient Air Quality Standards for […]
Brockton Power Company LLC v. Energy Facilities Siting Board (Lawyers Weekly No. 10-132-14)
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-11405 SJC-11407 BROCKTON POWER COMPANY LLC vs. ENERGY FACILITIES SITING BOARD & others.[1] CITY OF BROCKTON vs. ENERGY FACILITIES SITING BOARD & another[2] (No. 2). Suffolk. March 4, 2014. – July 31, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.[3] Energy Facilities Siting Board. Public Utilities, Electric company, Energy company. Municipal Corporations, Electric plant, Water supply. Environment, Air pollution. Electric Company. Administrative Law, Decision, Judicial review, Substantial evidence. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on October 28, 2011. The case was reported by Spina, J. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on October 26, 2011. The case was reported by Spina, J. Gregor I. McGregor (Nathaniel Stevens with him) for city of Brockton. David S. Rosenzweig (Erika J. Hafner & Michael J. Koehler with him) for Brockton Power Company LLC. Sookyoung Shin, Assistant Attorney General, for Energy Facilities Siting Board. Lisa C. Goodheart (Phelps T. Turner, Joshua D. Nadreau, & Staci Rubin with her) for Frank J. Babbin & others. Wendy B. Jacobs & Aladdine D. Joroff, for Massachusetts Rivers Alliance & others, amici curiae, submitted a brief. BOTSFORD, J. On August 7, 2009, the Energy Facilities Siting Board (board), acting pursuant to G. L. c. 164, § 69J¼ (§ 69J¼), approved the petition of Brockton Power Company LLC (Brockton Power or company), to build and operate a 350-megawatt combined-cycle energy generating facility (facility or project) powered by natural gas and ultra-low sulfur distillate (ULSD) in the city of Brockton (city). As approved by the board, the facility would use wastewater from the city’s advanced wastewater reclamation facility (AWRF) for its cooling tower. In a consolidated appeal by three of the interveners, we affirmed the board’s decision. See Brockton v. Energy Facilities Siting Bd. (No. 1), ante (2014) (Brockton [No. 1]), decided today. On April 9, 2010, while the consolidated appeal was pending, Brockton Power submitted a project change filing (PCF) to the board, seeking approval of three changes to its project. In the PCF, Brockton Power sought to: (1) change the source of the facility’s cooling tower water from the AWRF to the Brockton municipal water supply (BMWS); (2) eliminate the use of ULSD as an alternative fuel and rely solely on natural gas […]
Commonwealth v. Lopez (Lawyers Weekly No. 11-091-14)
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 13-P-750 Appeals Court COMMONWEALTH vs. MIGUEL LOPEZ. No. 13-P-750. Hampden. February 6, 2014. – July 30, 2014. Present: Cypher, Graham, & Carhart, JJ. Rape. Assault and Battery. Constitutional Law, Speedy trial. Evidence, Hospital record, Disclosure of evidence. Practice, Criminal, Speedy trial, Discovery, Disclosure of evidence. Indictments found and returned in the Superior Court Department on July 27, 2011. A motion to dismiss was heard by C. Jeffrey Kinder, J., and the cases were tried before Bertha D. Josephson, J. David M. Skeels, Committee for Public Counsel Services, for the defendant. Deborah D. Ahlstrom, Assistant District Attorney, for the Commonwealth. CYPHER, J. The defendant, Miguel Lopez, was convicted by a jury of rape, G. L. c. 265, § 22(b), and assault and battery, G. L. c. 265, § 13A(a). He appeals, claiming (1) that he was prejudiced by the lack of a speedy trial and (2) that the Commonwealth failed to provide mandatory discovery. We affirm. Background. On July 27, 2011, a HampdenCounty grand jury returned indictments against the defendant on the underlying charges. The defendant was arraigned on August 9, 2011, and counsel was appointed. On November 15, 2012, the defendant filed a motion to dismiss on speedy trial grounds, with a supporting memorandum. After a hearing on the motion five days later, the judge denied the motion. A jury trial began on December 11, 2012, after which the defendant was found guilty on both charges. On December 19, 2012, the defendant was sentenced on the rape conviction to a term of not more than ten years, and not less than nine years, to be served at the Massachusetts Correctional Institution at Cedar Junction. On the assault and battery conviction, the defendant was sentenced to the Hampden County house of correction for two and one-half years, the sentence to run concurrently with the sentence to be served on the rape conviction. Facts. A jury could have found the following facts. On July 11, 2010, the victim, Valerie,[1] was living in an apartment with her stepdaughter. The defendant lived upstairs in the same apartment building with his wife, who was out of town at the time. Valerie knew the defendant because he was a good friend of Valerie’s former boyfriend, Frank,[2] who had recently ended their relationship. Valerie was also a friend of the defendant’s wife. At 6:00 A.M. on the […]
Commonwealth v. Traylor (Lawyers Weekly No. 11-092-14)
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; SJCReportersjc.state.ma.us 11-P-1238 Appeals Court COMMONWEALTH vs. MATTHEW TRAYLOR. No. 11-P-1238. Suffolk. October 2, 2012. – July 30, 2014. Present: Berry, Green, & Meade, JJ. Child Abuse. Assault and Battery. Reckless endangerment of a child. Constitutional Law, Double jeopardy. Practice, Criminal, Double jeopardy. Statute, Construction. Indictments found and returned in the Superior Court Department on September 12, 2008. The cases were tried before Elizabeth M. Fahey, J. A motion to stay execution of sentence was heard in this court by Fecteau, J. David Hirsch for the defendant. Kevin J. Curtin, Assistant District Attorney (Elizabeth A. Dunigan, Assistant District Attorney, with him) for the Commonwealth. BERRY, J. The defendant was charged under G. L. c. 265, § 13J(b), on two indictments for assault and battery upon a child by having care and custody of said child and committing an assault and battery, or wantonly or recklessly permitting or allowing another to commit an assault and battery resulting in substantial bodily injury to the child,[1] and on five indictments for assault and battery upon a child by having care and custody of said child and committing an assault and battery, or wantonly or recklessly permitting or allowing another to commit an assault and battery resulting in bodily injury to the child.[2],[3] At the time the child (the defendant’s four month old son), whom we shall call Rory,[4] sustained his injuries, he was living with his eighteen month old sister, his mother, his aunt, and his maternal grandfather. The child’s oldest injuries coincided closely with the first day of his mother’s return to work full time, after which time the defendant was the child’s primary caretaker, looking after the child at the child’s home, although the defendant did not reside there. In this consolidated appeal, the defendant argues that five of the seven convictions were duplicative; the evidence was insufficient; and a single justice of this court erred in denying his motion for a stay of execution.[5] We affirm. In this case, the particularized injuries to the child as charged in the seven indictments were as follows: Indictment 1 — substantial bodily injury Lacerated liver. Indictment 2 — substantial bodily injury Lacerated spleen. Indictment 3 — bodily injury Fractured humerus. Indictment 4 — bodily injury Fractured tibia. Indictment 5 — bodily injury Fractured iliac […]
Commonwealth v. Bradshaw (Lawyers Weekly No. 11-090-14)
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-897 Appeals Court COMMONWEALTH vs. CHRISTOPHER BRADSHAW. No. 12-P-897. Middlesex. October 9, 2013. – July 29, 2014. Present: Cypher, Katzmann, & Maldonado, JJ. Indecent Assault and Battery. Dangerous Weapon. Evidence, Relevancy and materiality, Motive, State of mind, Intent, Inflammatory evidence, Knife. Intent. Practice, Criminal, State of mind. Indictments found and returned in the Superior Court Department on April 29, 2010. One case was tried before Diane M. Kottmyer, J., and one case was tried before Paul A. Chernoff, J. Bruce Ferg, Committee for Public Counsel Services, for the defendant. Fawn D. Balliro Andersen, Assistant District Attorney, for the Commonwealth. KATZMANN, J. A Superior Court jury convicted the defendant of indecent assault and battery on a child under the age of fourteen, G. L. c. 265, § 13B, as a lesser included offense of aggravated rape of a child, G. L. c. 265, § 23A(a). A second Superior Court jury convicted the defendant of carrying a dangerous weapon when arrested upon a warrant, G. L. c. 269, § 10(b). In this consolidated appeal, the central question is whether the admission of the defendant’s statement that he was attracted to younger boys — a category that includes the victim — was reversible error because it amounted to impermissible character or propensity evidence suggesting that the defendant was likely to have committed the sexual assault. The defendant also argues that the evidence was insufficient to support the dangerous weapon conviction. We affirm. Background. 1. The party incident. The first jury could have found the following. On the evening of April 1, 2010, the defendant attended a party at the townhouse of the victim’s mother, Mona.[1] The victim, Billy, lived in the townhouse with Mona and his sister, Sarah. At the time of the incident, Billy was nine years old and Sarah was twelve. During the party, several adults — including the defendant and Nirva Guirand, a friend of the defendant and of Mona — were gathered upstairs in the mother’s bedroom and drinking alcohol. At the relevant time, Billy was asleep on the couch downstairs in the living room. Sarah testified that she left her bedroom late at night to go down to the kitchen. When she had partially descended the flight of stairs, she saw Billy lying asleep on the living room couch.[2] She saw that his shirt was raised and […]
Lightlab Immaging, Inc. v. Axsun Technologies, Inc., et al. (Lawyers Weekly No. 10-130-14)
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-11374 LIGHTLAB IMAGING, INC. vs. AXSUN TECHNOLOGIES, INC., & another.[1] Suffolk. December 2, 2013. – July 28, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Contract, Performance and breach, Implied covenant of good faith and fair dealing, Interference with contractual relations, Construction of contract. Unlawful Interference. Trade Secret. Unjust Enrichment. Consumer Protection Act, Unfair act or practice. Evidence, Expert opinion. Witness, Expert. Damages, Future damages, Loss of profits. Declaratory Relief. Injunction. Practice, Civil, Injunctive relief. Civil action commenced in the Superior Court Department on January 7, 2009. The case was tried before Margaret R. Hinkle, J.; a motion for summary judgement was heard by her; and entry of final judgment was ordered by Peter M. Lauriat, J. The Supreme Judicial Court granted an application for direct appellate review. Kenneth R. Berman (Cynthia M. Guizzetti with him) for the plaintiff. William F. Lee (Felicia H. Ellsworth & Laurence A. Schoen with him) for the defendants. SPINA, J. The plaintiff, Lightlab Imaging, Inc. (LightLab), prevailed in much of the litigation below, which involved claims of breach of contract and the covenant of good faith and fair dealing, tortious interference with contractual and advantageous business relations, misappropriation of trade secrets and confidential information, unjust enrichment, and violations of G. L. c. 93A. LightLab appeals from three aspects of the judgment pertaining to relief. First, the judge excluded opinion testimony from LightLab’s expert economist on the question of future lost profits for twenty years beyond the term of the parties’ contract based on yet-to-be conceived future products. Second, the judge denied permanent injunctive relief that LightLab sought for protection against future misappropriation of its trade secrets where, although LightLab had established past misappropriation, it offered no proof of a likely reoccurrence. Third, the judge who entered the amended final judgment declined to include in that judgment a declaration of LightLab’s contract rights that mirrored the language of the order for summary judgment concerning contract interpretation. We affirm, but order the inclusion of the declaration sought by LightLab. 1. Background. The trial of this action was conducted in multiple phases. We summarize the various phases. a. Liability phase. The liability claims, except for the G. L. c. 93A claim and certain of the trade secret claims, were tried to a jury. The jury could have […]
Commonwealth v. Rutledge (and 16 companion cases) (Lawyers Weekly No. 11-088-14)
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-965 Appeals Court COMMONWEALTH vs. ROBERT RUTLEDGE (and sixteen companion cases[1]). No. 13-P-965. July 25, 2014. Firearms. Constitutional Law, Stop and frisk, Search and seizure, Probable cause. Search and Seizure, Protective frisk, Container, Exigent circumstances, Probable cause. Probable Cause. Practice, Criminal, Motion to suppress. The defendants were charged with, inter alia, numerous firearms offenses. A judge in the Superior Court allowed the defendants’ motions to suppress a firearm seized after a warrantless search of a backpack following an investigatory stop of a motor vehicle. The Commonwealth appeals, contending that a preliminary patfrisk of the backpack was not necessary as a prerequisite to the search. We affirm. 1. Background. After an evidentiary hearing on the motions, the judge found the following facts. On July 13, 2011, a 911 operator in Brockton received a call from Roseangela Andrade. She explained to the operator that, while on the telephone with her boyfriend, she overheard an argument erupt between her current boyfriend and her former boyfriend, Jaemill Horton. Andrade further reported that, during the argument, Horton allegedly pulled a gun on her boyfriend, threatening to kill him if Andrade refused to drop her pending charges against Horton. Andrade advised the operator that Horton drove a black Acura automobile, with registration number “749-GH7.” Initial dispatch to the scene of the alleged altercation returned nothing. After following up with Andrade, officers determined that the vehicle was an Infiniti, with registration number “759-GH7,” and that Horton had an active matter pending in the Taunton Division of the District Court Department. At that time, the police initiated a general broadcast advising the officers to look for a black Infiniti, explaining that a gun had been pulled and threats made in connection with a pending court case. Officer Michael Minnock heard the general dispatch, but did not respond to the area. A little over an hour later, Minnock spotted the suspect vehicle and observed its occupants making furtive movements. Minnock activated his emergency lights and siren and stopped the vehicle. At that time, Horton, who was driving, exited the vehicle. In response, Officer Minnock exited his cruiser, drew his firearm, and ordered Horton to get back into the vehicle. Horton, however, did not comply. The front seat passenger, Rutledge, also exited the vehicle and was ordered toreenter. Instead, both Horton and Rutledge fled […]
Commonwealth v. Kostka (Lawyers Weekly No. 11-089-14)
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-1576 Appeals Court COMMONWEALTH vs. CHRISTOPHER KOSTKA. No. 13-P-1576. Suffolk. May 9, 2014. – July 25, 2014. Present: Green, Meade, & Sullivan, JJ. Contempt. Practice, Criminal, Contempt. Deoxyribonucleic Acid. Constitutional Law, Search and seizure. Search and Seizure, Buccal swab, Probable cause. Probable Cause. Evidence, Buccal swab, Relevancy and materiality. Adjudication of contempt in the Superior Court Department by Jeffrey A. Locke, J., on April 9, 2013. John H. Cunha, Jr., for the defendant. Teresa K. Anderson, Assistant District Attorney (Ursula A. Knight, Assistant District Attorney, with her) for the Commonwealth. GREEN, J. In Commonwealth v. Draheim, 447 Mass. 113, 119 (2006), the Supreme Judicial Court held that “so long as the Commonwealth satisfies the requirements of both the Fourth Amendment [to the United States Constitution] and Mass. R. Crim. P. 17(a)(2), 378 Mass. 885 (1979), it should be permitted the same access as defendants to potentially beneficial evidence from third parties,” including third parties who are not suspects in a crime. Accordingly, in Draheim, the Commonwealth was allowed to obtain saliva samples from two alleged male victims of alleged statutory rapes and from two children borne by the defendant, in order to allow deoxyribonucleic acid (DNA) testing to determine whether either of the alleged victims had fathered either child. This appeal presents a variation on the theme. Christopher Kostka (Christopher) is the twin brother of Timothy Kostka (Timothy), who has been indicted on charges of murder in the first degree and armed home invasion, arising from the stabbing death of Barbara Coyne. The Commonwealth obtained an order from the Superior Court compelling Christopher to provide a buccal swab to allow the Commonwealth to determine whether Timothy and Christopher are identical or fraternal twins. If (as the Commonwealth anticipates) DNA testing establishes that the two are fraternal twins, the Commonwealth proposes to use the test results to establish that biological material recovered from the victim’s fingernails must have been contributed by Timothy (and, in particular, to exclude Christopher as a possible contributor). Christopher appeals from a judgment of contempt entered in the Superior Court, following his refusal to comply with the order. See Lenardis v. Commonwealth, 452 Mass. 1001, 1001 (2008) (“A nonparty directed to provide evidence pursuant to [Mass.R.Crim.P. 17(a)(2), 378 Mass. 885 (1979),] can challenge the propriety of the order by refusing to comply […]
Pacific Indemnity Company, et al. v. Lampro, et al. (Lawyers Weekly No. 11-087-14)
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-1510 Appeals Court PACIFIC INDEMNITY COMPANY & others[1] vs. MICHAEL LAMPRO[2] & another.[3] No. 13-P-1510. Berkshire. April 1, 2014. – July 24, 2014. Present: Vuono, Meade, & Carhart, JJ. Consumer Protection Act, Insurance, Unfair act or practice, Subrogation. Insurance, Coverage, General liability insurance, Subrogation, Unfair act or practice. Contract, Insurance. Indemnity. Subrogation. Practice, Civil, Motion to dismiss. Civil action commenced in the Superior Court Department on June 17, 2010. The case was heard by was heard by John A. Agostini, J., on a motion for judgment on the pleadings. Matthew D. Sweet for the plaintiffs. Jeffrey L. McCormick for Preferred Mutual Insurance Company. MEADE, J. The plaintiff, Pacific Indemnity Company (Pacific), as subrogee of its insured, Steven and Sue Levkoff, appeals from the entry of judgment for the defendant, Preferred Mutual Insurance Company (Preferred). Pacific and the Levkoffs sued Preferred and its insured, Michael Lampro, principal of the landscaping company Steven Michael Designs (SMD), after SMD damaged the Levkoffs’ property while performing tree and brush removal work. On appeal, Pacific claims that the Superior Court judge erred by concluding that the damage to the Levkoffs’ property was not covered by SMD’s commercial general liability insurance policy. Pacific argues that judgment on the pleadings should not have entered for Preferred on Pacific’s G. L. c. 93A claim because, even if the Levkoffs’ property damage fell outside of SMD’s insurance policy, Preferred’s conduct violated G. L. c. 93A. We affirm. 1. Background. In January, 2009, the Levkoffs contracted with SMD to perform landscaping services on their land in Monterey, Massachusetts. The Levkoffs were insured under a homeowners’ insurance policy issued by Pacific, and SMD held a commercial general liability insurance policy through Preferred. The Levkoffs planned to build a vacation home on their property, which borders Lake Garfield and is considered an environmentally sensitive area. Prior to contracting with SMD, the Levkoffs presented their building and landscaping plans to the Monterey Conservation Commission (commission). The permits issued by the commission allowed the Levkoffs to pursue their landscaping plans so long as they did so in compliance with environmental regulations. The Levkoffs and SMD executed a $ 24,000 contract to remove trees and brush “in accordance with” the commission’s permits and the Levkoffs’ engineering plans. The contract held SMD “responsible for damage to new or existing work on the […]
The Woodward School for Girls, Inc. v. City of Quincy, et al. (Lawyers Weekly No. 10-129-14)
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-11390 THE WOODWARD SCHOOL FOR GIRLS, INC. vs. CITY OF QUINCY, trustee,[1] & another.[2] Norfolk. December 2, 2013. – July 23, 2014. Present: Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Trust, Charitable trust, Investments, Trustee’s accounts. Damages, Breach of fiduciary duty, Interest. Interest. Massachusetts Tort Claims Act. Governmental Immunity. Immunity from Suit. Municipal Corporations, Trusts, Governmental immunity. Waiver. Laches. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on July 11, 2007. After transfer to the Norfolk County Division of the Probate and Family Court Department, the case was heard by Robert W. Langlois, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. John S. Leonard (James S. Timmins, City Solicitor, with him) for city of Quincy. Sarah G. Kim (Josephine M. Deang Chin & Alison K. Eggers with her) for the plaintiff. CORDY, J. This dispute arises from a trust established in 1822 by former President John Adams and supplemented by a bequest of his grandson in 1886. The city[3] of Quincy (Quincy) served as trustee of the Adams Temple and School Fund and the Charles Francis Adams Fund (collectively, Funds) through two boards.[4] The Woodward School for Girls, Inc. (Woodward), the income beneficiary of the Funds since 1953, filed suit against Quincy initially seeking an accounting and thereafter asserting that Quincy committed a breach of its fiduciary duties to keep adequate records, invest the trust’s assets properly, exercise reasonable prudence in the sales of real estate, and incur only reasonable expenses related to the management of the Funds. We transferred the case here on our own motion following Quincy’s appeal and Woodward’s cross appeal from a Probate and Family Court judge’s ruling removing Quincy as trustee and ordering it to pay a nearly $ 3 million judgment.[5] On appeal, Quincy asserts that the trial judge erred in finding that Quincy committed a breach of its fiduciary duties to the Funds by failing to invest in growth equities to protect the principal when the Funds have only an income beneficiary to provide for, and by not heeding specific investment advice it received in 1973. In addition, Quincy challenges the award of damages, alleging that it was based on an improperly introduced and unsound […]