Becker v. Phelps (Lawyers Weekly No. 11-098-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-951 Appeals Court JILL S. BECKER vs. MONT ANDREW PHELPS. No. 13-P-951. Middlesex. June 2, 2014. – August 22, 2014. Present: Green, Trainor, & Grainger, JJ. Divorce and Separation, Alimony. Contract, Consideration, Waiver. Civil action commenced in the Middlesex Division of the Probate and Family Court Department on August 2, 2012. A motion to dismiss was heard by Dorothy M. Gibson, J., and a motion to alter or amend judgment was considered by her. Jill S. Becker, pro se. Brian P. Heneghan for the defendant. GRAINGER, J. The parties, formerly married, raise an interpretive question of first impression under a provision of the Alimony Reform Act of 2011,[1] G. L. c. 208, § 49(a). Background. The facts are uncontested. After eight years of marriage the parties divorced on November 9, 2010. The parties entered into a separation agreement addressing various topics, including the division of marital assets, payment of the expenses of medical insurance and education for the couple’s children, and the parties’ respective obligations to maintain life insurance. Germane to the issue raised on appeal, the parties also stipulated to two lump sum payments of $ 500,000 in lieu of periodic alimony payments. The payments were due to be paid by the wife to the husband on or before December 1, 2013, and on or before December 1, 2018. Unpaid amounts were subject to a four percent annual interest payment commencing December 1, 2011. These annual payments were terminable upon the death of either party or upon the payment in full of the two lump sums, whichever occurred earlier. The agreement was incorporated into the judgment of divorce, specifically provided that it would survive the judgment, and contained no other provision for termination of these enumerated obligations.[2] The husband remarriedin June of 2012, after the first four percent annual payment was made. Shortly thereafter the wife filed a complaint for declaratory relief in the Probate and Family Court asserting that all alimony obligations “were terminated by operation of law.” She appeals from the dismissal of her complaint and the subsequent denial of her motion to alter or amend the judgment. For the reasons set forth below we affirm. Proceedings in the Probate and Family Court. The husband’s motion to dismiss the wife’s complaint relied on the Supreme Judicial Court’s statement in Keller v. […]
Kewley v. Department of Elementary and Secondary Education, et al. (Lawyers Weekly No. 11-099-14)
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-833 Appeals Court BARBARA KEWLEY vs. DEPARTMENT OF ELEMENTARY AND SECONDARY EDUCATION & others.[1] No. 13-P-833. Suffolk. December 11, 2013. – August 22, 2014. Present: Green, Sikora, & Milkey, JJ. License. Administrative Law, Agency, Judicial review, Agency’s interpretation of statute. School and School Committee, Professional teacher status, Appointment of personnel. School and School District. Constitutional Law, Police power. Due Process of Law, License, Retroactive application of statute, Substantive rights. Statute, Retroactive application, Construction. Practice, Civil, Review of administrative action, Action in nature of mandamus. Civil action commenced in the Superior Court Department on August 6, 2009. The case was heard by Heidi E. Brieger, J., on motions for summary judgment. Daniel O’Connor (Laura Elkayam with him) for the plaintiff. John M. Stephan, Assistant Attorney General, for the Department of Elementary & Secondary Education. Thomas A. Mullen for the Wachusett Regional School Committee. SIKORA, J. In 2009 the plaintiff, Barbara Kewley, brought suit in Superior Court against three governmental defendants: the Department of Elementary and Secondary Education (DESE); the Board of Registration in Speech-Language Pathology and Audiology (board); and the Wachusett Regional School Committee (school committee) (collectively, defendants). She sought a declaratory judgment of her eligibility to practice speech and language therapy in public schools under the authority of her licensure from the DESE and without licensure from the board, and an affirmative injunction compelling the school committee to grant her a teacher’s contract as a speech therapist. The defendants contested those entitlements. At the conclusion of discovery, the parties composed a statement of agreed material facts and submitted cross motions for summary judgment. By memorandum of decision and a conforming order, a judge of the Superior Court granted full summary judgment in favor of all defendants. Kewley has appealed. For the following reasons, we now affirm. Background. 1. Early biography. In 1981 Kewley earned a bachelor of science degree in the field of speech, language, and hearing disorders. Also in 1981, she earned a license from the Department of Education certifying her as an “educator” in “all levels” of “speech,” “language,” and “hearing disorders” (DESE license). The life of the license originally was indefinite. The Legislature subsequently renamed the Department of Education as DESE. Pursuant to the Education Reform Act of 1993, DESE has required renewal of licensure at five-year intervals. G. L. […]
Categories: News Tags: 1109914, department, Education, Elementary, Kewley, Lawyers, Secondary, Weekly
Hazel’s Cup and Saucer, LLC v. Around the Globe Travel, Inc. (Lawyers Weekly No. 11-100-14)
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-1371 Appeals Court HAZEL’S CUP & SAUCER, LLC vs. AROUND THE GLOBE TRAVEL, INC. No. 13-P-1371. Suffolk. May 8, 2014. – August 22, 2014. Present: Rubin, Wolohojian, & Maldonado, JJ. Consumer Protection. Practice, Civil, Class action. Telephone. Advertising. Civil action commenced in the Superior Court Department on March 8, 2010. A motion for class certification was heard by Frances A. McIntyre, J., and entry of judgment was ordered by her. Tod A. Lewis, of Illinois, for the plaintiff. RUBIN, J. The Federal Telephone Consumer Protection Act of 1991 (TCPA) forbids the use of “any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine an unsolicited advertisement.” 47 U.S.C. § 227(b)(1)(C) (2006). The TCPA creates a private right of action for recipients of unsolicited advertisements received by facsimile (fax), entitling them to collect from the sender the greater of actual damages or $ 500. Treble damages are available in the case of knowing or wilful violations. Florida travel agency Around The Globe Travel, Inc. (Around The Globe) hired New York fax broadcaster Business to Business Solutions (B2B) to assist it with advertising a Super Bowl party on a cruise ship. Using a list of fax machine telephone numbers purchased from a third party, B2B sent 2,325 faxes to 1,640 different Massachusetts business fax numbers on August 2 and 3, 2006. One of the recipients was the plaintiff, Hazel’s Cup & Saucer, LLC (Hazel’s). Hazel’s brought this case as a putative class action in the Superior Court against the defendant Around The Globe.[1] The submissions of Hazel’s to the lower court describe some of the difficult and costly procedures undertaken by Hazel’s, its counsel, and its expert witness in order to find both Around The Globe and B2B, and to identify the recipients of the advertisement at issue. The motion judge denied a motion for class certification under Mass.R.Civ.P. 23, as amended, 452 Mass. 1401 (2008).[2] With respect to the four factors listed in rule 23(a) — numerosity, commonality, typicality, and adequacy of representation — the judge found the requirements of the TCPA easily met. As for the factors outlined in rule 23(b) — predominance of common questions of law and fact over issues affecting only individual members, and superiority of class action over other methods of adjudication — the judge […]
Commonwealth v. Wright (Lawyers Weekly No. 10-146-14)
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-11501 COMMONWEALTH vs. EDWARD G. WRIGHT. Hampden. April 10, 2014. – August 20, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.[1] Homicide. Practice, Criminal, New trial, Hearsay, Capital case. Evidence, Third-party culprit, Exculpatory, Opinion, Hearsay, Motive, Relevancy and materiality. Indictment found and returned in the Superior Court Department on June 7, 1984. Following review by this court, 411 Mass. 678 (1992), a motion for a new trial, filed on April 24, 2012, was considered by C. Jeffrey Kinder, J., and motions for reconsideration were considered by him. A request for leave to appeal was allowed by Botsford, J., in the Supreme Judicial Court for the county of Suffolk. Richard J. Fallon (Matthew A. Kamholtz with him) for the defendant. Dianne M. Dillon, Assistant District Attorney, for the Commonwealth. GANTS, J. On April 10, 1985, the defendant, Edward G. Wright, was convicted by a jury of murder in the first degree on the theories of deliberate premeditation and extreme atrocity or cruelty. We affirmed the defendant’s conviction and the denials of his first and second motions for a new trial. Commonwealth v. Wright, 411 Mass. 678, 683, 686-689, 691 (1992). After various proceedings, which we will detail below, the defendant, in April, 2012, filed his fifth motion for a new trial, arguing, insofar as relevant here, that newly discovered evidence in the form of third-party culprit evidence warranted a new trial. The motion was denied without an evidentiary hearing, as were motions for reconsideration. The defendant then petitioned a single justice of this court, pursuant to the “gatekeeper” provision of G. L. c. 278, § 33E, for leave to appeal the denial of his fifth motion for a new trial. The single justice allowed the appeal to proceed. We now affirm the denial of the motion. 1. Trial. We set forth the relevant facts as detailed in our earlier opinion, which we supplement in footnotes: “In the afternoon of May 14, 1984, officers of the Springfield police department found the victim’s body with more than sixty stab wounds in her second-floor apartment at 306 Dwight Street Extension.[[2],[3]] There was evidence that she had died between 12:15 A.M. and 6:15 A.M. that day. A neighbor heard a woman screaming for about fifteen minutes shortly before 4 A.M.[[4]] He […]
Nautical Tours, Inc. v. Department of Public Utilities (Lawyers Weekly No. 10-147-14)
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-11455 NAUTICAL TOURS, INC. vs. DEPARTMENT OF PUBLIC UTILITIES. August 20, 2014. Department of Public Utilities. License. Public Utilities, Sight-seeing vehicle. Carrier, Sight-seeing vehicle. Motor Vehicle, Sight-seeing vehicle. Nautical Tours, Inc. (Nautical Tours), appeals from a judgment of a single justice of this court affirming a decision of the Department of Public Utilities (department) that it did not have jurisdiction to issue the type of license needed by Nautical Tours to operate its business in the city of Boston. Nautical Tours seeks to operate amphibious motor vehicles for sightseeing and charter purposes on the streets of Cambridge and Boston and the waters of the Charles River and Boston Harbor. The parties disagree about the appropriate license needed to operate in Boston. Nautical Tours contends that it must obtain a municipal street license pursuant to G. L. c. 159A, § 1. The department ruled that Nautical Tours was required to obtain a sightseeing license, which the Boston police commissioner has the exclusive authority to issue, pursuant to St. 1931, c. 399. We agree with the department that the Legislature established two different licensing schemes. Although a municipal street license is needed to carry passengers for hire on the public ways of cities and towns in the Commonwealth under G. L. c. 159A, § 1, a sightseeing automobile operating in the city of Boston must obtain a separate sightseeing license under St. 1931, c. 399. Because we further agree with the department that it did not have jurisdiction to issue Nautical Tours a municipal street license to operate its amphibious motor vehicles in Boston, we affirm. Background. In 2010, Nautical Tours filed a petition with the department concerning its proposed operation of amphibious motor vehicles over certain public ways in Boston. Nautical Tours asked the department (1) to exercise its licensing authority to issue a municipal street license under G. L. c. 159A, § 1; and (2) to amend the certificate of public convenience and necessity that it had issued in a proceeding in 2007, under G. L. c. 159A, § 7. In its 2007 order, the department concluded that Nautical Tours had not met its burden of demonstrating that it was able to operate its proposed plan, because it could not demonstrate that it had secured adequate financing. See Deacon Transp., Inc. v. Department of Pub. Utils., 388 Mass. 390, 394 (1983). To facilitate Nautical Tour’s ability to […]
Commonwealth v. Gonzalez (Lawyers Weekly No. 10-144-14)
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-11428 COMMONWEALTH vs. MARIO GONZALEZ. Suffolk. April 11, 2014. – August 19, 2014. Present: Ireland, C.J., Spina, Gants, Duffly, & Lenk, JJ.[1] Homicide. Evidence, Admissions and confessions, Voluntariness of statement, Dying declaration, Prior misconduct, Intoxication, Intent. Practice, Criminal, Capital case, Admissions and confessions, Voluntariness of statement, Instructions to jury. Intoxication. Mental Impairment. Intent. Indictment found and returned in the Superior Court Department on March 19, 2009. A pretrial motion to suppress evidence was heard by Charles J. Hely, J., and the case was tried before Geraldine S. Hines, J. David Keighley for the defendant. Helle Sachse, Assistant District Attorney, for the Commonwealth. GANTS, J. In the early morning hours of February 15, 2009, the defendant stabbed his girl friend multiple times shortly after they returned to his apartment from a local bar. The victim died of her wounds later that morning. A Superior Court jury convicted the defendant of murder in the first degree on a theory of extreme atrocity or cruelty, in violation of G. L. c. 265, § 1.[2] On appeal, the defendant claims that: (1) the statements the defendant made from his holding cell in response to police questioning should have been suppressed because he had earlier invoked his right to silence; (2) the admission in evidence of the defendant’s invocation of his right to silence created a substantial likelihood of a miscarriage of justice; (3) the trial judge erred in admitting statements made by the victim as dying declarations; (4) the judge erred in admitting certain testimony regarding the defendant’s prior bad acts; and (5) the absence of an instruction to the jury that they may consider the defendant’s consumption of alcohol in determining whether the defendant acted in a cruel or atrocious manner in causing the victim’s death created a substantial likelihood of a miscarriage of justice. The defendant also requests that we exercise our authority under G. L. c. 278, § 33E, to reduce the conviction to a lesser included offense. We reject the defendant’s first four claims, but agree with the fifth. We therefore reverse the defendant’s conviction of murder in the first degree and remand the case to the Superior Court to allow the Commonwealth to choose between entry of a verdict of murder in the second degree or retrial of the defendant […]
Commonwealth v. Vacher (Lawyers Weekly No. 10-145-14)
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-11220 COMMONWEALTH vs. ROBERT B. VACHER. Barnstable. April 11, 2014. – August 19, 2014. Present: Ireland, C.J., Spina, Gants, Duffly, & Lenk, JJ. [1] Homicide. Constitutional Law, Admissions and confessions, Search and seizure, Voluntariness of statement, Probable cause. Search and Seizure, Standing to object, Probable cause. Evidence, Identification, Opinion, Photograph, Immunized witness. Identification. Practice, Criminal, Admissions and confessions, Agreement between prosecutor and witness, Capital case, Instructions to jury, Motion to suppress, Standing, Voluntariness of statement. Joint Enterprise. Witness, Immunity. Indictments found and returned in the Superior Court Department on April 10, 2009. A pretrial motion to suppress evidence was heard by Gary A. Nickerson, J., and the cases was tried before Robert C. Rufo, J. James L. Sultan (Kerry Haberlin with him) for the defendant. Julia K. Holler, Assistant District Attorney, for the Commonwealth. LENK, J. A Superior Court jury found the defendant guilty of murder in the first degree, on theories of deliberate premeditation, extreme atrocity or cruelty, and felony murder.[2] On appeal, the defendant asks us to recognize for the first time the concept of “target standing,” and to declare the witness immunity statute, G. L. c. 233, § 20C, unconstitutional. He argues that, in litigating his own motions to suppress, he should have been afforded target standing to challenge the violation of his alleged coventurers’ constitutional rights. He further argues that the witness immunity statute, G. L. c. 233, § 20C, is facially unconstitutional, in that it operates to benefit only the Commonwealth and unfairly skews the adversary system, and unconstitutional as applied to him, in that the Commonwealth’s reliance on a “spate” of immunized witnesses deprived him of a fair trial. The defendant also contends that the trial judge’s failure to exclude identification testimony, and his failure to instruct the jury pursuant to Commonwealth v. DiGiambattista, 442 Mass. 423, 447-448 (2004), concerning the partial recording of the defendant’s interrogation by police, were erroneous and require a new trial. Concluding that there was no prejudicial error, we affirm the defendant’s convictions. After a review of the entire record pursuant to G. L. c. 278, § 33E, we discern no reason to exercise our power to reduce the defendant’s conviction to a lesser degree of guilt or to order a new trial. 1. Introduction. On December 16, 2008, the victim’s body was found burning in […]
Lowell v. Talcott, et al. v. Hunnewell, et al. (Lawyers Weekly No. 11-096-14)
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-1053 Appeals Court WILLIAM A. LOWELL, trustee,[1] vs. MARIA OAKES TALCOTT & others;[2] ARNOLD W. HUNNEWELL, JR., & another,[3] third-party defendants. No. 13-P-1053. Norfolk. April 10, 2014. – August 18, 2014. Present: Graham, Wolohojian, & Milkey, JJ. Trust, Beneficiary. Devise and Legacy, Issue. Legitimacy. Paternity. Probate Court, Interpretation of trust instrument, Attorney’s fees. Practice, Civil, Attorney’s fees. Words, “Issue.” Civil action commenced in the Norfolk Division of the Probate and Family Court Department on September 28, 2010. The case was heard by George F. Phelan, J., on motions for summary judgment; a motion for attorney’s fees and costs was heard by him; and the entry of final judgment was ordered by him. James R. Knudsen for Maria Oakes Talcott. Maureen E. Curran for Katharine Van Buskirk & others. Steven E. Gurdin (A. Hether Cahill with him) for William A. Lowell & others. GRAHAM, J. In this case, we are asked to consider whether a child born in 1963 while her mother was married to a man who is not the child’s father, is an “issue” of the mother as that term is used in the wills of the mother’s grandparents, drafted in 1951. We conclude that on the particular facts presented, she is. Background. In 1951, Francis J. Oakes, Jr., and his wife, Mary P. Oakes (collectively, testators), executed reciprocal wills leaving the bulk of their property in trust for the benefit of one another and their issue. Francis[4] died on August 14, 1954, and Mary died on July 7, 1956. Upon their deaths, pursuant to each will, separate trusts were created for each of their three daughters and their respective “issue.” Thus, two trusts were created for each daughter. Only the trusts for their daughter, Elisabeth Oakes Colford, and her issue, are before us. The wills provided for discretionary distributions of “net income and/or principal” to the testators’ children or to the “issue of such child.” The term “issue” is not defined in the wills. The trusts are to terminate twenty-one years after the death of the last survivor of those of the testators’ issue who were living at the time of the testators’ deaths, in equal shares per stirpes. In 1955, Elisabeth’s daughter, Juliana Colford Van Buskirk, married David Van Buskirk. Their daughters, Katharine and Elisabeth,[5] were born in 1956 […]
Zimmerling v. Affinity Financial Corporatiopn, et al. (Lawyers Weekly No. 11-097-14)
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-1439 Appeals Court WILLIAM ZIMMERLING vs. AFFINITY FINANCIAL CORPORATION, & others.[1] No. 13-P-1439. Middlesex. April 8, 2014. – August 18, 2014. Present: Berry, Katzmann, & Sullivan, JJ. Practice, Civil, Action to reach and apply. Escrow. Uniform Commercial Code, Security interest, Secured creditor. Words, “Transferee,” “Interest in property.” Civil action commenced in the Superior Court Department on November 24, 2010. The case was heard by Joseph M. Walker, III, J., on motions for summary judgment, and entry of final judgment was ordered by Kenneth W. Salinger, J. Brian T. Moore, of Colorado (W. Matthew Iler, Jr., with him) for the plaintiff. Thomas M. Elcock (Thomas Sutcliffe with him) for the interveners. SULLIVAN, J. This appeal concerns the enforceability of security interests in funds deposited in an escrow account pursuant to an order of a judge of the Superior Court. The plaintiff, William Zimmerling (Zimmerling), and the interveners, BHC Interim Funding II, LP, and BHC Interim Funding III, LP, (collectively BHC), are creditors of Affinity Financial Corporation (Affinity). Zimmerling and BHC both lay claim to money owed to Affinity by AARP Financial, Inc. (AARP Financial). At issue is whether BHC’s perfected security interests in the funds held by AARP Financial were extinguished because they were transferred from an AARP Financial bank deposit account to a court-ordered escrow account. See G. L. c. 106, § 9-332(b) (2001) (UCC § 9-332).[2] We conclude that the BHC security interests in the escrowed funds were not extinguished, and affirm the judgment awarding the amounts held in escrow to BHC. Background. The case was decided on cross motions for summary judgment based on an undisputed record. In 2008 BHC advanced funds totalling $ 13.5 million to Affinity. Loan documents and security agreements were executed in connection with each of the two loans. Zimmerling does not dispute that these documents created valid security interests, that the security interests were perfected on or about January 15, and April 28, 2008, and that the security interests covered assets, after-acquired assets, and proceeds of assets. By March of 2010 Affinity had defaulted on the loans, and BHC declared Affinity to be in default. Affinity’s assets were insufficient to pay the loans. Affinity also owed money to Zimmerling, who had successfully arbitrated a claim for breach of an employment contract against Affinity. The Zimmerling award was confirmed by […]
Categories: News Tags: 1109714, Affinity, Corporatiopn, Financial, Lawyers, Weekly, Zimmerling