Paine, et al. v. Sexton, et al. (Lawyers Weekly No. 11-149-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 14-P-14 Appeals Court ROBERT L. PAINE, trustee[1] & another[2] vs. CHELLISE L. SEXTON[3] & another.[4] No. 14-P-14. Suffolk. April 2, 2015. – September 23, 2015. Present: Milkey, Brown, & Massing, JJ. Land Court, Registration proceedings. Real Property, Registered land, Adverse possession, Record title, Deed. Adverse Possession and Prescription. Deed, Description. Practice, Civil, Summary judgment, Motion to amend. Civil action commenced in the Land Court Department on February 10, 1999. The case was heard by Alexander H. Sands, III, J., and motions for summary judgment were heard by him. Albert J. Schulz for the defendants. Sarah Turano-Flores for the plaintiffs. BROWN, J. This case causes us to examine a novel treatment of the law of adverse possession and presents difficult concerns with a color of title claim as well. On review we conclude the judge’s resolution of both issues in favor of the plaintiffs is sustainable, and the well-crafted arguments of the defendants do not persuade us otherwise. Accordingly, we affirm the judgment entered by the Land Court judge. The plaintiffs seek to register approximately thirty-six acres of predominately woodland located in Wellfleet. In their petition for registration, they asserted claims based on record title and adverse possession.[5] For their claims of adverse possession, they assert nonpermissive use of portions of the property for more than twenty years in a manner that was actual, open, notorious, exclusive, and adverse. See Kendall v. Selvaggio, 413 Mass. 619, 621-622 (1992). In addition, based on deeds purporting to convey title to them, they claim adverse possession under color of title to portions of the locus where they cannot show actual use. See Norton v. West, 8 Mass. App. Ct. 348, 350-351 (1979). In response, the defendants contend that the plaintiffs cannot establish their claim of adverse possession of any portion of the wooded parcels because they have not enclosed them or reduced them to cultivation, see Senn v. Western Mass. Elec. Co., 18 Mass. App. Ct. 992, 993 (1984), and in any event the deeds under which they claim color of title are inadequate in description to support such a claim. The case proceeded in the Land Court in two stages. The adverse possession claim was tried first and the judge concluded that the plaintiffs’ use of portions of the property was sufficient to […]
C.E. v. J.E. (Lawyers Weekly No. 10-162-15)
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-11945 C.E. vs. J.E.[1] September 23, 2015. Supreme Judicial Court, Superintendence of inferior courts. Practice, Civil, Stay of proceedings. Divorce and Separation, Stay of judgment. C.E. (wife) appeals from a judgment of a single justice of this court denying her petition for relief under G. L. c. 211, § 3, specifically, a stay pending her appeal from a judgment of divorce nisi. At trial, the wife alleged that the husband, J.E., sexually abused one of the parties’ two minor children. The judge found, after a fourteen-day trial, that the alleged abuse had not been proved by a preponderance of the evidence. A judgment of divorce nisi issued, paragraphs 3 and 4 of which grant the husband unsupervised parenting time with the children. The wife moved in the Probate and Family Court and before a single justice of the Appeals Court for a stay pending appeal of these two paragraphs. Mass. R. A. P. 6, as appearing in 454 Mass. 1601 (2009). When those motions were unsuccessful, the wife filed her petition pursuant to G. L. c. 211, § 3, seeking a stay, which a single justice of this court denied without a hearing. On the wife’s emergency motion, we issued an interim order staying paragraphs 3 and 4 pending further order of this court. We now vacate our interim order and affirm the judgment of the single justice.[2] “Relief pursuant to G. L. c. 211, § 3, is extraordinary. We will not disturb the single justice’s denial of relief absent an abuse of discretion or other clear error of law. See, e.g., Matthews v. Appeals Court, 444 Mass. 1007, 1008 (2005). A petitioner seeking relief under the statute ‘must “demonstrate both a substantial claim of violation of [her] substantive rights and error that cannot be remedied under the ordinary review process.”‘ McGuinness v. Commonwealth, 420 Mass. 495, 497 (1995), quoting Planned Parenthood League of Mass., Inc. v. Operation Rescue, 406 Mass. 701, 706 (1990).” Bledsoe v. Commissioner of Correction, 470 Mass. 1017, 1017 (2014), quoting Black v. Commonwealth, 459 Mass. 1003, 1003 (2011). Here, the wife had an adequate remedy in the ordinary review process, as she “had the opportunity to appeal from the order of the single justice of the Appeals Court to a panel of that court” and “also could have requested that the Appeals Court expedite such an appeal.” Blonde v. […]
Commonwealth v. Rodriguez (Lawyers Weekly No. 10-160-15)
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-11814 COMMONWEALTH vs. ELIVETTE RODRIGUEZ. Bristol. March 5, 2015. – September 22, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Marijuana. Threshold Police Inquiry. Search and Seizure, Threshold police inquiry, Reasonable suspicion. Constitutional Law, Investigatory stop, Reasonable suspicion. Complaint received and sworn to in the New Bedford Division of the District Court Department on April 27, 2012. A pretrial motion to suppress evidence was heard by Joseph I. Macy, J. An application for leave to prosecute an interlocutory appeal was allowed by Gants, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by him to the Appeals Court. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. John L. Calcagni, III, for the defendant. Corey T. Mastin, Assistant District Attorney, for the Commonwealth. BOTSFORD, J. This case, in which the defendant appeals from the denial of her motion to suppress, centers on a motor vehicle stop based on a police officer’s detection of an odor of burnt marijuana coming from the vehicle. It requires us to evaluate further the impact of G. L. c. 94C, §§ 32L-32N, inserted by St. 2008, c. 387, §§ 2-4, which decriminalized possession of one ounce or less of marijuana. For the reasons discussed hereafter, we conclude that at least in a stop such as this one, where there was at best reasonable suspicion to believe that a civil marijuana infraction was occurring, but not probable cause, the stop was impermissible. Accordingly, the order denying the defendant’s motion to suppress must be reversed. 1. Background. To provide context, we summarize the evidence presented at the hearing on the defendant’s motion to suppress.[1] On the evening of April 26, 2012, Detective Daniel Amaral of the New Bedford police department was driving an unmarked police cruiser assisting a narcotics surveillance team of police officers when he came upon a motor vehicle that he had stopped once before. During the earlier stop, Amaral had arrested the woman who normally drove that vehicle for heroin possession. He knew that the surveillance team was interested in the vehicle because of its connection to the earlier drug-related arrest. Accordingly, he followed the vehicle and thereafter received instruction from the […]
Hickey v. Pathways Association, Inc., et al. (Lawyers Weekly No. 10-161-15)
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-11603 BRIAN S. HICKEY & others[1] vs. PATHWAYS ASSOCIATION, INC., & others.[2] Suffolk. October 7, 2014. – September 22, 2015. Present: Gants, C.J., Spina, Botsford, Duffly, Lenk, & Hines, JJ. Beach. Way, Private. Real Property, Registered land: Easement, Beach, Easement. Easement. Civil action commenced in the Land Court Department on April 15, 2009. The case was heard by Karyn F. Scheier, J., on a case stated. The Supreme Judicial Court granted an application for direct appellate review. Jennifer S.D. Roberts for Lorraine M. Paglia & another. Brian M. Hurley for Brian S. Hickey & another. Kevin T. Smith for Elizabeth J. Walker & others. David L. Delaney for Pamela A. Maher & others. Roland W. Young, pro se. Peter L. Freeman, for William J. Creonte & others, was present but did not argue. LENK, J. This case involves a dispute among landowners in the same subdivision over access rights over a private way to the beach. The plaintiffs own two beachfront lots in the town of Dennis (town), fronting on Shore Drive. Shore Drive runs along the waterfront parallel to Cape Cod Bay. The plaintiffs’ lots are separated by a twenty-foot way that extends south from Cape Cod Bay, along the length of the lots, to Shore Drive. The defendants[3] own lots located to the south and west of the plaintiffs’ lots, starting from the inland side of Shore Drive. All of the land involved is registered land; it had formed part of a 217.24 acre tract of land originally owned by Frank B. Tobey and registered in the Land Court in 1903. In 1917, Tobey conveyed the parcel to two sisters who thereafter subdivided the parcel repeatedly through 1977. Over that sixty-year period, they subdivided the parcel a small section of residential lots at a time. The way appears on the subdivision plans creating the plaintiffs’ lots, and on some of the plans creating the defendants’ lots. The defendants maintain that, according to provisions in their deeds and certificates of title, all of which reference easements over ways in subdivision plans, they hold rights of access over the way. The plaintiffs contend that they hold all ownership rights in the way, and the defendants have no right to use it for any purpose. The plaintiffs claim that, […]
Commonwealth v. Jones (Lawyers Weekly No. 10-159-15)
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-11775 COMMONWEALTH vs. CLAUZELL JONES. Worcester. March 2, 2015. – September 21, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Rape. Rape-Shield Statute. Deoxyribonucleic Acid. Constitutional Law, Confrontation of witnesses, Public trial. Evidence, Expert opinion, Scientific test, Hearsay, Chain of custody, Sexual conduct. Witness, Expert. Practice, Criminal, Confrontation of witnesses, Public trial, Instructions to jury. Indictments found and returned in the Superior Court Department on March 17, 2009. The cases were tried before David Ricciardone, J., and a motion for a new trial, filed on July 5, 2013, was heard by him. The Supreme Judicial Court granted an application for direct appellate review. Kathleen M. O’Connell for the defendant. Ellyn H. Lazar-Moore, Assistant District Attorney, for the Commonwealth. Brad A. Compston, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief. LENK, J. The defendant was indicted on charges of rape, in violation of G. L. c. 265, § 22 (b), and furnishing alcohol to a minor, in violation of G. L. c. 138, § 34. At trial, the defendant testified both that his sexual contact with the victim did not involve penetration and that it was consensual. To establish the element of penetration necessary to sustain a conviction of rape, the Commonwealth offered, in addition to the victim’s testimony, results of deoxyribonucleic acid (DNA) testing that purportedly identified the defendant’s saliva on “intimate” swabs taken from the victim’s vagina. To prove that the sexual contact was nonconsensual, the Commonwealth offered, among other evidence, testimony concerning the victim’s conduct shortly after the alleged rape occurred. The defendant was convicted by a Superior Court jury in May, 2011, on both indictments. On appeal, the defendant argues that the judge erred in allowing the Commonwealth to introduce, through the testimony of an expert witness who was not present when the victim’s “rape kit” examination was performed, evidence concerning how the various swabs that the expert tested were collected. The defendant further contends that the judge violated his right to a public trial by holding, pursuant to G. L. c. 233, § 21B (rape shield law), an in camera hearing to determine the admissibility of evidence relating to the victim’s prior sexual contact with the individual to whom the victim first reported the alleged rape (first complaint witness). Finally, the defendant challenges […]
Ellis v. Commissioner of the Department of Industrial Accidents, et al. (Lawyers Weekly No. 11-148-15)
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-402 Appeals Court JAMES ELLIS[1] vs. COMMISSIONER OF THE DEPARTMENT OF INDUSTRIAL ACCIDENTS & another.[2] No. 13-P-402. Suffolk. October 10, 2013. – September 18, 2015. Present: Berry, Green, & Trainor, JJ. Workers’ Compensation Act, Lump-sum settlement, Attorney’s fees. Administrative Law, Judicial review. Practice, Civil, Frivolous action. Civil action commenced in the Superior Court Department on May 28, 2008. The case was heard by Geraldine S. Hines, J., on a motion for summary judgment. Teresa Brooks Benoit for the plaintiff. Timothy J. Casey, Assistant Attorney General, for Commissioner of the Department of Industrial Accidents. Michael K. Landman, for Landman, Akashian & White, P.C., was present but did not argue. BERRY, J. Reduced to essentials, in this latest appellate foray, the plaintiff, James Ellis, contends that, in considering whether to approve a lump sum agreement under § 48 of G. L. c. 152, the Workers’ Compensation Act (act), for injuries to a worker, an administrative judge of the Department of Industrial Accidents (department) or a law judge on the department’s reviewing board (reviewing board) (hereinafter collectively referred to as administrative judge) is absolutely foreclosed from reviewing the authenticity of the legal expenses and from adjusting those expenses downward, leaving more money for the injured worker under the lump sum settlement payment. We reject Ellis’s contentions regarding total unreviewability of the claimed legal expenses. Ellis offers no precedent, i.e., no caselaw or statutory authority, for this proposition. See note 8, infra. We conclude that an administrative judge — in review of a proposed lump sum awarded and to be paid in settlement to an injured worker — does have the authority to review and adjust downward unsubstantiated or unreasonably excessive attorney’s fees and expenses. Put another way, it is within the purview of an administrative judge to modify the amount allocated in the lump sum settlement to an employee’s attorney for attorney’s fees and necessary expenses where the fees and expenses, upon review, are insufficiently supported or deemed not necessary, and the administrative judge, by such an adjustment, neither increases the burden on the insurer nor decreases the net sum to be paid to the employee. In the past five years alone, Ellis or his legal assistants (collectively, Ellis) have filed over one hundred and fifty workers’ compensation appeals in this court. In a substantial number […]
Categories: News Tags: 1114815, Accidents, Commissioner, department, Ellis, Industrial, Lawyers, Weekly
Commonwealth v. Walters (Lawyers Weekly No. 10-158-15)
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-11799 COMMONWEALTH vs. MICHAEL WALTERS. Bristol. May 4, 2015. – September 18, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Stalking. Criminal Harassment. Abuse Prevention. Perjury. Social Media. Threatening. Evidence, Threat, Intent, Photograph, Relevancy and materiality, Argument by prosecutor, Disclosure of evidence. Constitutional Law, Freedom of speech and press. Intent. Practice, Criminal, Instructions to jury, Argument by prosecutor, Disclosure of evidence, Impeachment by prior conviction. Due Process of Law, Disclosure of evidence. Witness, Impeachment. Indictments found and returned in the Superior Court Department on March 28, 2011. The cases were tried before E. Susan Garsh, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Ethan C. Stiles for the defendant. David B. Mark, Assistant District Attorney (Shoshana Stern, Assistant District Attorney, with him) for the Commonwealth. The following submitted briefs for amici curiae: Claire Laporte, Marco J. Quina, Rebecca M. Cazabon, Stephen T. Bychowski, & Bendan T. Jarboe for Domestic & Sexual Violence Council, Inc., & others. Helen Gerostathos Guyton, Sandra J. Badin, Lyzzette M. Bullock, & John Nucci for Jane Doe Inc. & others. Steven M. Freeman, Lauren A. Jones, & Melissa Garlick, of New York, & Joseph Berman for Anti-Defamation League. Kirsten V. Mayer, Kavitha A. Mecozzi, Jennifer S. Pantina, Alexandra L. Roth, Matthew R. Segal, Jessie J. Rossman, & Mason Kortz for American Liberties Union of Massachusetts. BOTSFORD, J. This case raises the question whether a posting to the Web site Facebook may constitute a threat within the meaning of the stalking statute, G. L. c. 265, § 43 (a) (§ 43 [a]). We conclude that although content posted to Facebook may qualify as a threat as defined in the statute, in this particular case, a reasonable jury could not have found that the defendant’s Facebook profile page constituted such a threat. We therefore vacate the defendant’s conviction of stalking. The defendant’s remaining convictions of criminal harassment, criminal violation of a restraining order pursuant to G. L. c. 209A, § 7 (two counts), and perjury (two counts) are affirmed.[1] Background. 1. Facts. Because the defendant challenges the sufficiency of the evidence presented with respect to the charges of stalking and criminal harassment, we summarize the facts the jury could have found in the light most favorable to the Commonwealth. […]
Commonwealth v. Rezendes (Lawyers Weekly No. 11-147-15)
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 14-P-753 Appeals Court COMMONWEALTH vs. DOMINIC REZENDES. No. 14-P-753. Plymouth. May 11, 2015. – September 17, 2015. Present: Cypher, Meade, & Massing, JJ. Firearms. Assault and Battery by Means of a Dangerous Weapon. Practice, Criminal, Prior conviction, Sentence. Delinquent Child. Words, “Violent crime,” “Deadly weapon.” Indictments found and returned in the Superior Court Department on February 18, 2011. The cases were tried before Merita A. Hopkins, J. James A. Reidy for the defendant. Jessica Heaton, Assistant District Attorney, for the Commonwealth. CYPHER, J. This case requires us to consider the meaning of “violent crime” as used in the Massachusetts Armed Career Criminal Act (Massachusetts ACCA or statute), G. L. c. 269, § 10G, inserted by St. 1998, c. 180, § 71. Specifically, we must interpret the term “deadly weapon,” as used in the definition of violent crime in G. L. c. 140, § 121, as amended by St. 1998, c. 180, § 8. The defendant, Dominic Rezendes, appeals from a conviction under § 10G(c) of the Massachusetts ACCA, which was based, in part, on a juvenile adjudication for assault and battery by means of a dangerous weapon (a pen). We first conclude that the term “deadly weapon” in this context is distinct from the term “dangerous weapon” as applied in our common law. We further hold that for the purposes of conviction under G. L. c. 269, § 10G, a deadly weapon is a weapon that is inherently deadly, and therefore conclude that a pen is not a deadly weapon under this statute. Accordingly, under these circumstances, the defendant’s juvenile adjudication for assault and battery by means of a dangerous weapon could not have formed the basis for a conviction under the Massachusetts ACCA. We reverse the defendant’s conviction under G. L. c. 269, § 10G(c), and remand for resentencing under G. L. c. 269, § 10G(b). Background. In July, 2013, a jury convicted the defendant on two indictments charging assault and battery by means of a dangerous weapon and three indictments involving weapons charges: unlawful possession of a firearm, in violation of G. L. c. 269, § 10(a); unlawful discharge of a firearm within 500 feet of a building, in violation of G. L. c. 269, § 12E; and unlawful possession of a loaded firearm, in violation of G. L. c. 269, § 10(n).[1] The indictment charging unlawful possession of a firearm carried an additional […]
Commonwealth v. Niemic (Lawyers Weekly No. 10-157-15)
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-11535 COMMONWEALTH vs. JONATHAN NIEMIC. Bristol. April 9, 2015. – September 17, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Homicide. Practice, Criminal, Capital case, Assistance of counsel, Argument by prosecutor, Cross-examination by prosecutor, Instructions to jury. Evidence, Argument by prosecutor, Self-defense, Cross-examination, Impeachment of credibility, Prior inconsistent statement. Self-Defense. Constitutional Law, Assistance of counsel. Indictment found and returned in the Superior Court Department on December 9, 2010. The case was tried before Thomas F. McGuire, Jr., J. Theodore F. Riordan (Deborah Bates Riordan with him) for the defendant. Tara L. Blackman, Assistant District Attorney, for the Commonwealth. SPINA, J. On October 20, 2010, the defendant stabbed the victim six times with a small folding pocket knife, killing him. The Commonwealth’s theory of motive was that both men had been vying for the affection of the same woman. The primary dispute at trial was whether the victim was the first aggressor, whether the defendant acted in self-defense, and who first had possession of the knife. The jury convicted the defendant of murder in the first degree on a theory of extreme atrocity or cruelty. On appeal the defendant asserts error by trial counsel, by the prosecutor, and by the judge. He claims that trial counsel was ineffective (1) for making an incorrect argument about voluntary manslaughter (which he asked the jury to find), and (2) for failing to request an instruction on involuntary manslaughter. The defendant argues that the prosecutor improperly cross-examined him on his right to remain silent, including (1) questions about why he had not gone to police with his version of events, (2) questions about his failure to tell his grandmother and friends that he was defending himself, and (3) questions that emphasized his failure to tell anyone his version of events until trial. The defendant also contends that the prosecutor (4) improperly appealed to the sympathy of the jury in his closing argument, and (5) made improper argument about the defendant’s failure to call witnesses to corroborate his testimony. The defendant asserts that the judge erred (1) by failing to instruct the jury that the Commonwealth must disprove the absence of excessive force in self-defense, and (2) by giving an incorrect instruction on self-defense. We conclude that the combined effect […]
Hawley, et al. v. Preferred Mutual Insurance Company (Lawyers Weekly No. 11-146-15)
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 14-P-917 Appeals Court LINDA HAWLEY & another[1] vs. PREFERRED MUTUAL INSURANCE COMPANY. No. 14-P-917. Hampden. April 10, 2015. – September 16, 2015. Present: Cypher, Trainor, & Katzmann, JJ. Insurance, Reference process, Arbitration, Coverage, Water damage. Contract, Insurance. Consumer Protection Act, Insurance, Unfair act or practice. Limitations, Statute of. Practice, Civil, Statute of limitations, Consumer protection case. Civil action commenced in the Superior Court Department on June 2, 2008. The case was heard by Cornelius J. Moriarty, II, J. James E. Grumbach for the plaintiffs. Jeffrey L. McCormick for the defendant. KATZMANN, J. This appeal arises from a dispute between an insurer and its insured, based on a denial of coverage for water damage, and largely concerns the question whether the insured’s mere request for a reference for arbitration pursuant to G. L. c. 175, § 99, Twelfth, as appearing in St. 1951, c. 478, § 1, operates to toll the statute of limitations period contained in § 99 and incorporated by the insurance policy.[2] We conclude that it does not. On November 12, 2012, after a seven-day bench trial, a Superior Court judge issued a ruling in favor of the defendant, Preferred Mutual Insurance Company (Preferred), on a breach of contract claim and an unfair and deceptive insurance practicesclaim under G. L. c. 93A and G. L. c. 176D. The decision was based on the grounds that the breach of contract claim was barred by the statute of limitations and that there were no facts to support the claim that Preferred acted unfairly or deceptively in denying the insurance claim or in its failure to proceed to reference. A second amended judgment entered on February 11, 2013, and the insureds, Linda and Robert Hawley (the Hawleys), appealed. We affirm on the grounds that (1) the breach of contract claim was filed outside the statute of limitations, as the request for reference did not toll the statute of limitations, and, even if it had, the complaint was not filed within a reasonable time after the denial of the request for reference; and (2) because the loss at issue did not fall within the policy, the c. 93A and c. 176D claims also fail. Background. The facts as found by the Superior Court judge are as follows. Linda Hawley owns the dwelling at issue and Robert Hawley manages it. The dwelling is a […]