Martinez, et al. v. Waldstein (Lawyers Weekly No. 11-046-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 15-P-455 Appeals Court FRANCISCO MARTINEZ, trustee,[1] & another[2] vs. THOMAS G. WALDSTEIN. No. 15-P-455. Middlesex. January 13, 2016. – April 29, 2016. Present: Cypher, Meade, & Neyman, JJ. Collateral Estoppel. Judgment, Preclusive effect. Negligence, Misrepresentation. Contract, Misrepresentation. Practice, Civil, Judgment on the pleadings, Affidavit. Subrogation. Civil action commenced in the Superior Court Department on July 2, 2014. The case was heard by Kimberly S. Budd, J., on a motion for judgment on the pleadings. Peter S. Brooks for the plaintiffs. Damian R. LaPlaca for the defendant. NEYMAN, J. Francisco Martinez, trustee of the Baystate Portfolio Trust (trust), and Eric AmRhein (collectively, plaintiffs), appeal from a judgment of the Superior Court dismissing their complaint alleging misrepresentation and violation of G. L. c. 93A, § 11, against the defendant, attorney Thomas G. Waldstein, on the basis of issue preclusion. This is the second appeal to this court arising out of the plan to purchase the mortgage and foreclose on a property located at 3 Ronald Road in Sudbury (the property) in order to eliminate junior mortgages on the property. See U.S. Bank, N.A. v. Martinez, 86 Mass. App. Ct. 1111 (2014) (Baystate I). The plaintiffs’ claims in the present action hinge on their allegation that they reasonably relied on Waldstein’s representations in an affidavit regarding mortgage priorities on the property. A Superior Court judge (motion judge) granted Waldstein’s motion for judgment on the pleadings, concluding that the plaintiffs could not establish that they reasonably relied on Waldstein’s representations because a different Superior Court judge (trial judge) had found otherwise in Baystate I.[3] The plaintiffs contend that the motion judge erred in applying issue preclusion because the issue of reasonable reliance was not actually litigated in Baystate I, and thus was neither identical to any issues raised in Baystate I nor essential to the judgment in Baystate I. We affirm. 1. Background. We first summarize the relevant facts from the motion judge’s decision on Waldstein’s motion for judgment on the pleadings, taking those facts stated by the plaintiffs as true. See Mass.R.Civ.P. 12(c), 365 Mass. 754 (1974); Jarosz v. Palmer, 436 Mass. 526, 530 (2002) (Jarosz). We then look to the entire record of Baystate I, with a view toward comparing the issues adjudicated therein with the issues raised by the plaintiffs in the present action. See Boyd […]
Bayless v. TTS Trio Corporation, et al. (Lawyers Weekly No. 10-058-16)
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-11958 HOWARD H. BAYLESS, administrator,[1] vs. TTS TRIO CORPORATION[2] & others.[3] Worcester. January 11, 2016. – April 28, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Alcoholic Liquors, Sale to intoxicated person. Negligence, Serving alcoholic liquors to guest. Practice, Civil, Affidavit. Civil action commenced in the Superior Court Department on April 14, 2014. Motions to strike an affidavit and for partial summary judgment were heard by Richard T. Tucker, J. Leave to prosecute an interlocutory appeal was allowed in the Appeals Court by Peter J. Agnes, Jr., J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Scott T. Ober (Margarita I. Warren with him) for the defendants. Ernest E. Wessell for the plaintiff. Annette Gonthier Kiely, Thomas R. Murphy, Erin K. Thurston, & Lisa DeBrosse Johnson, for Massachusetts Academy of Trial Attorneys, amicus curiae, submitted a brief. SPINA, J. In this case, we are asked to determine whether an affidavit submitted pursuant to G. L. c. 231, § 60J (commonly referred to as the dram shop act), must be a sworn statement based upon personal knowledge.[4] Section 60J prescribes the procedural requirements applicable to “[e]very action for negligence in the distribution, sale or serving of alcoholic beverages to a minor or to an intoxicated person.”[5] Pursuant to § 60J, within ninety days of filing his or her complaint, a plaintiff must file an affidavit “setting forth sufficient facts to raise a legitimate question of liability appropriate for judicial inquiry.” Herman T. Bayless, the plaintiff’s decedent, was killed in a one-car accident after leaving a restaurant owned by the defendants where he had consumed alcoholic beverages. The plaintiff alleged that prior to his decedent’s fatal motor vehicle accident, the defendants exhibited negligent, wilful, wanton, and reckless conduct by selling and serving alcoholic beverages to the decedent while he was obviously intoxicated, and that such conduct was the proximate cause of the decedent’s death. The plaintiff submitted an affidavit pursuant to § 60J (§ 60J affidavit) that was signed by the plaintiff’s counsel. The affidavit stated that it was based on information and belief gathered from witness statements, a police report, and a medical toxicology report. The defendants argue that an affidavit submitted pursuant to § 60J must be […]
Meikle v. Nurse (Lawyers Weekly No. 10-057-16)
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-11859 GARTH MEIKLE vs. PATRICIA NURSE. Suffolk. November 5, 2015. – April 27, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Summary Process. Practice, Civil, Summary process, Counterclaim and cross-claim. Landlord and Tenant, Security deposit, Termination of tenancy, Eviction. Summary process. Complaint filed in the Boston Division of the Housing Court Department on June 11, 2014. The case was heard by MaryLou Muirhead, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Louis Fisher (Patricia Whiting with him) for the defendant. Garth Meikle, pro Se. Peter Vickery, for Worcester Property Owners Association, Inc., amicus curiae, submitted a brief. Maureen McDonagh & Julia Devanthéry, for City Life/Vida Urbana, amicus curiae, submitted a brief. HINES, J. In this appeal we decide whether a tenant may assert a violation of the security deposit statute, G. L. c. 186, § 15B, as a defense to a landlord’s claim for possession in a summary process action brought under G. L. c. 239, § 1A. The issue arises from a Housing Court judge’s disposition of a summary process action brought by Garth Meikle, the landlord, against Patricia Nurse, the tenant. After a trial, the judge ruled that the tenant properly could assert a violation of the security deposit statute as a counterclaim for damages, but that a counterclaim on this basis is not a defense to the landlord’s claim for possession. The tenant appealed, arguing that the plain language of G. L. c. 239, § 8A, buttressed by its legislative history, establishes that a violation of the security deposit statute may be asserted as a defense to a landlord’s claim for possession and that the judge erred in rejecting this interpretation of the statute. We transferred the appeal to this court on our own motion.[1] We conclude that a violation of the security deposit statute is encompassed within the definition of “counterclaim or defense” in G. L. c. 239, § 8A, and that a counterclaim or defense on that basis may be asserted as a defense to a landlord’s possession in a summary process action under G. L. c. 239, § 1A. Therefore, we reverse the Housing Court judgment granting possession to the landlord and remand for a hearing in accordance with the provisions of G. L. c. 239, § 8A, fifth par.[2] Background. We summarize the judge’s findings of fact, which we […]
Commonwealth v. Heath (Lawyers Weekly No. 11-045-16)
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 15-P-227 Appeals Court COMMONWEALTH vs. CARROLL N. HEATH.[1] No. 15-P-227. Essex. February 11, 2016. – April 26, 2016. Present: Kafker, C.J., Rubin, & Agnes, JJ. Practice, Criminal, Loss of evidence by prosecution, Preservation of evidence, New trial. Evidence, Exculpatory, Videotape, Relevancy and materiality. Complaint received and sworn to in the Newburyport Division of the District Court Department on May 30, 2013. The case was tried before Allen G. Swan, J., and a motion for a new trial was heard by him. Christine DeBernardis for the defendant. Catherine P. Sullivan, Assistant District Attorney, for the Commonwealth. KAFKER, C.J. The defendant, Carroll N. Heath, was convicted of assault and battery on a police officer pursuant to G. L. c. 265, § 13D, and also of disturbing the peace.[2] He appeals the judge’s denial of his motion for a new trial on the assault and battery charge, claiming that he was denied due process of law by the Commonwealth’s failure to preserve a video recording of incidents in the booking room of the Haverhill police station that led to the assault and battery charge.[3] We reverse. 1. Background. a. The events of May 29. On May 29, 2013, the defendant was arrested for disturbing the peace. He had entered the emergency room at Merrimac Valley Hospital in Haverhill, demanded a sandwich, a shower, and that someone do his laundry, and let loose a tirade of racist, sexist, and other offensive comments at medical personnel when they told him that he must first see a physician before they could provide him with food and that they “did not have a shower in the emergency department.” Haverhill police Officer Dennis Moriarty, who was called to the hospital, tried to calm the defendant and escorted him from the hospital building while the defendant verbally threatened to hack him to pieces with a machete. The defendant then proceeded to a neighboring property, and Moriarty was called to that location by a resident when the defendant refused to leave. Moriarty then arrested the defendant and took him to the police station for booking. Officer Moriarty testified at trial that because the defendant “needs crutches to walk . . . [and] has no use of his legs,” Moriarty did not place the defendant in handcuffs at the time of the arrest. Moriarty testified […]
DiMasi v. State Board of Retirement, et al. (Lawyers Weekly No. 10-056-16)
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-11971 SALVATORE F. DiMASI vs. STATE BOARD OF RETIREMENT & others.[1] Suffolk. February 9, 2016. – April 21, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Public Employment, Forfeiture of retirement benefits. Retirement. State Board of Retirement. Contribution. Words, “Final conviction.” Civil action commenced in the Supreme Judicial Court for the county of Suffolk on June 16, 2014. The case was reported by Cordy, J. Thomas R. Kiley for the plaintiff. David R. Marks, Assistant Attorney General, for the defendants. SPINA, J. After the plaintiff, Salvatore F. DiMasi, was convicted of several violations of Federal law, the State Board of Retirement (board) unanimously approved the forfeiture of his retirement allowance in accordance with G. L. c. 32, § 15 (4), and a judge in the Boston Municipal Court Department affirmed the board’s decision. DiMasi filed a complaint for relief in the nature of certiorari pursuant to G. L. c. 249, § 4, in the Supreme Judicial Court for Suffolk County. A single justice reserved and reported the case for determination by the full court. DiMasi contends that a “final conviction” of a criminal offense for purposes of § 15 (4) occurs at the conclusion of the appellate process, not when a sentence is imposed. He further contends that the board improperly has withheld his accumulated total deductions since September, 2011. For the reasons that follow, we conclude that, in the context of pension forfeiture, a “final conviction” occurs when an individual is sentenced. We further conclude that DiMasi is entitled to the return of his accumulated total deductions, together with interest on such deductions from September, 2011, until such time as payment is made. 1. Statutory framework. The provisions of G. L. c. 32, § 15, “pertain to dereliction of duty by a member of the contributory retirement system for public employees (member).” See State Bd. of Retirement v. Bulger, 446 Mass. 169, 170 (2006) (Bulger). General Laws c. 32, § 15 (4), states as follows: “In no event shall any member after final conviction of a criminal offense involving violation of the laws applicable to his office or position, be entitled to receive a retirement allowance under the provisions of [§§ 1-28], inclusive, nor shall any beneficiary be entitled to receive any benefits […]
Robert and Ardis James Foundation, et al. v. Meyers (Lawyers Weekly No. 10-055-16)
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-11898 ROBERT AND ARDIS JAMES FOUNDATION & another[1] vs. DANIEL MAXWELL MEYERS. Suffolk. December 10, 2015. – April 21, 2016. Present: Gants, C.J., Spina, Cordy, Duffly, Lenk, & Hines, JJ. Contract, Implied covenant of good faith and fair dealing. Damages, Breach of contract, Sale of stock. Corporation, Stock. Civil action commenced in the Superior Court Department on November 16, 2006. After transfer to the business litigation session, the case was heard by Christine M. Roach, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Joseph L. Bierwirth, Jr. (Ryan P. McManus & Thomas J. Carey, Jr., with him) for the plaintiffs. Kevin P. Martin (Katherine C. Sadeck with him) for the defendant. LENK, J. This case considers whether there was a breach of the implied covenant of good faith and fair dealing in a contract dispute between two sophisticated investors. In 1998 and 1999, Robert James, acting on behalf of the Robert and Ardis James Foundation charitable foundation (foundation), agreed to advance over $ 650,000 to Daniel Meyers, the defendant, to purchase shares of stock in what was then a young, privately held company that Meyers had cofounded, in exchange for a portion of the proceeds of an eventual sale of those shares. The agreement was memorialized in two single-page, non-integrated letters that set out formulas by which to calculate the distribution of proceeds, but did not discuss the timing of sale. In 2006, following nearly two years of unsuccessful efforts to get Meyers to discuss bringing the agreements to a close, the foundation filed a complaint against Meyers seeking specific performance and damages. After a six-day bench trial in the business litigation session of the Superior Court in 2011, a judge found that Meyers had committed a breach of the implied covenant of good faith and fair dealing, and awarded damages based on a date of breach of July 31, 2006.[2] The Appeals Court reversed, see Robert & Ardis James Found. v. Meyers, 87 Mass. App. Ct. 85, 86 (2015), and we granted the foundation’s application for further appellate review. Meyers argues that he did not commit a breach of the implied covenant, and that the damages award should be vacated. We conclude that the trial judge’s decision was not erroneous, and affirm the […]
Commonwealth v. Allen (Lawyers Weekly No. 10-054-16)
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-11850 COMMONWEALTH vs. JAMES ALLEN. Suffolk. December 10, 2015. – April 20, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Homicide. Firearms. Defense of Others. Practice, Criminal, Instructions to jury. License. Constitutional Law, Right to bear arms. Indictments found and returned in the Superior Court Department on February 1, 2011. The cases were tried before Patrick F. Brady, J. The Supreme Judicial Court granted an application for direct appellate review. Matthew V. Soares for the defendant. Amanda Teo, Assistant District Attorney (Jennifer J. Hickman, Assistant District Attorney, with her) for the Commonwealth. Levi W. Swank, of the District of Columbia, & David A.F. Lewis & Stephen D. Poss, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief. CORDY, J. On March 21, 2012, a jury convicted the defendant, James Allen, of murder in the second degree,[1] and of carrying a firearm without a license, possession of ammunition without a firearms identification card, and possession of a large capacity firearm feeding device without a license.[2] At trial, his defense was that he was justified in using deadly force because he was coming to defense of a friend (Shawn Buchanan) who was being threatened with deadly force by the victim, Senai Williams. The defendant timely appealed his conviction, and we granted his application for direct appellate review. On appeal, he raises several claims. First, he argues that the trial judge’s instruction to the jury on defense of another was incorrect because it improperly suggested that the defendant may have had a duty to retreat, and because it negated the possibility of a finding of so-called excessive force manslaughter by instructing that the defendant was required to avail himself of available alternatives before employing deadly force and that if the Commonwealth proved that the defendant used excessive force then it had proved that he did not act in lawful defense of another. The defendant also claims error based on misstatements by the prosecutor in closing argument; the admission of irrelevant and prejudicial testimony; insufficient evidence supporting the firearms convictions; and constitutional violations in connection with the firearm indictments. We conclude that portions of the jury instructions concerning excessive force manslaughter were erroneous and prejudicial. Accordingly, we reverse the defendant’s conviction of murder in […]
Commonwealth v. Shruhan (Lawyers Weekly No. 11-044-16)
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-382 Appeals Court COMMONWEALTH vs. TIMOTHY SHRUHAN. No. 14-P-382. Suffolk. October 1, 2015. – April 19, 2016. Present: Cypher, Milkey, & Massing, JJ. Assault and Battery by Means of a Dangerous Weapon. Evidence, Hearsay, Admitted without objection, Prior misconduct, Argument by prosecutor, Identification. Practice, Criminal, Hearsay, Failure to object, Argument by prosecutor, Instructions to jury. Identification. Indictment found and returned in the Superior Court Department on April 15, 2011. The case was tried before Thomas A. Connors, J. Charles W. Rankin (Kerry A. Haberlin with him) for the defendant. Paul B. Linn, Assistant District Attorney, for the Commonwealth. CYPHER, J. The defendant, Timothy Shruhan, appeals from his conviction by a Superior Court jury on August 24, 2012, of aggravated assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A(c). Now, with new counsel, he seeks a new trial, alleging that cumulative errors in the admission of inflammatory evidence[1] and that the prosecutor’s appeals to the jury’s emotions created a substantial risk of a miscarriage of justice. We affirm. Background. On the afternoon of September 11, 2006, Timothy Cahill stopped at The Quencher Tavern (Quencher), a neighborhood bar near a community center where he worked in the South Boston section of Boston, met his father briefly, and ordered a cheeseburger to go. While he was walking on I Street back to work, a man he did not know, later identified as the defendant, rushed out of the driver’s seat of a nearby parked automobile, yelling, “Hey, Joey.” The defendant, mistaking Cahill for a South Boston man (Joe Pano), apparently aimed to settle a score over a stolen item. He stabbed Cahill in the abdomen causing life threatening injuries. Both “kind of stumbled” and the victim, who was immediately aware that he had been stabbed, put one hand on his wound and ran to the Quencher. More than once, he exclaimed, “I’m not Joey.” The defendant gave chase but soon quit and ran back to the car, still occupied by his companion, Robert Glavin. The defendant drove off but not before a passerby, Jessica Bianco, had memorized the car’s license plate number. Upon reaching her home on East Sixth Street, Bianco telephoned the police and passed on her observations. She had noticed the Infiniti emblem on the rear of the […]
Commonwealth v. Amado (Lawyers Weekly No. 10-053-16)
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-11914 COMMONWEALTH vs. ADERITO P. AMADO. Plymouth. December 8, 2015. – April 19, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Controlled Substances. Search and Seizure, Protective frisk, Probable cause, Body examination. Constitutional Law, Search and seizure, Probable cause. Probable Cause. Practice, Criminal, Motion to suppress. Indictment found and returned in the Superior Court Department on July 18, 2011. A pretrial motion to suppress evidence was heard by Frank M. Gaziano, J., and the case was tried before Merita A. Hopkins, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Susan E. Taylor for the defendant. Mary E. Lee, Assistant District Attorney, for the Commonwealth. HINES, J. After a jury trial, the defendant, Aderito Amado, was convicted of trafficking in fourteen grams or more of cocaine, in violation of G. L. c. 94C, § 32E (b). The Appeals Court affirmed the conviction in an unpublished memorandum and order issued pursuant to its rule 1:28. We granted the defendant’s application for further appellate review to consider whether the search of the defendant’s genital area during a patfrisk for weapons was a strip search and, if so, whether it satisfied the probable cause requirement articulated in Commonwealth v. Morales, 462 Mass. 334, 342 (2012). We conclude that although the police properly initiated the motor vehicle stop, the subsequent search, which involved pulling the defendant’s clothing away from his body, shining a flashlight inside the clothing, and removing an object from his buttocks, was an unlawful strip search on two grounds. First, the search of the defendant’s buttocks area exceeded the permissible scope of a patfrisk for weapons where it occurred after the police had dispelled the safety concerns prompting the exit order and patfrisk. Second, the search met the criteria of a strip search as we have defined it, and the search was unlawful because the police lacked probable cause to believe the defendant was concealing drugs on his person and it was otherwise unreasonable. Thus, the judge erred in denying the motion to suppress the evidence obtained during the search. We reverse the denial of the motion to suppress and remand the matter to the Superior Court for further proceedings. 1. Motion to suppress. a. Background. On June 2, 2011, […]
Kitras, et al. v. Town of Aquinnah, et al. (Lawyers Weekly No. 10-052-16)
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-11885 MARIA A. KITRAS, trustee,[1] & others[2] vs. TOWN OF AQUINNAH & others.[3] Suffolk. December 8, 2015. – April 19, 2016. Present: Gants, C.J., Spina, Cordy, Duffly, Lenk, & Hines, JJ. Easement. Necessity. Real Property, Easement. Law of the Case. Civil action commenced in the Land Court Department on May 20, 1997. After review by the Appeals Court, 64 Mass. App. Ct. 285 (2005), the case was heard by Charles W. Trombly, Jr., J. After further review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Jennifer S.D. Roberts for Vineyard Conservation Society, Inc. Diane C. Tillotson for Martha’s Vineyard Land Bank. Ronald H. Rappaport for town of Aquinnah. Wendy H. Sibbison for Maria A. Kitras & another. Leslie Ann Morse for Mark D. Harding & others. Jennifer H. Flynn, Assistant Attorney General, for the Commonwealth, was present but did not argue. The following submitted briefs for amici curiae: Lawrence H. Mirel, of the District of Columbia, for Aquinnah/Gay Head Community Association. Andrew H. Cohn, Felicia H. Ellsworth, & Claire M. Specht for Real Estate Bar Association for Massachusetts, Inc., & another. Nicole Friederichs, Lorie Graham, & Jeffrey Pokorak for Wampanoag Tribe of Gay Head (Aquinnah). Michael Pill, pro se. SPINA, J. In this case, we are asked to determine whether easements by necessity were created as a result of an 1878 partition of Native American common land in the town of Gay Head (now known as Aquinnah).[4] Gay Head is located on the western coast of Martha’s Vineyard, connected to the rest of the island by an isthmus. At the time of the 1878 partition, Gay Head was inhabited solely by members of the Wampanoag Tribe of Gay Head (Tribe).[5] When two commissioners appointed by the probate court pursuant to statute partitioned the common land into hundreds of lots to be held in severalty[6] by members of the Tribe, they did not include express easements providing rights of access, leaving the lots landlocked. The plaintiffs are owners of several lots created by this partition and are seeking, over one hundred years later, easements by necessity over the lots of the defendants. We conclude that the defendants presented sufficient evidence to rebut the presumption that the commissioners intended to include rights of […]