Mar-Lees Seafood LLC, et al. v. Lees, et al. (Lawyers Weekly No. 12-144-16)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss.SUPERIOR COURT CIVIL ACTION 2012-4609-BLS2 MAR-LEES SEAFOOD LLC, MAR-LEES HOLDING LLC, and SEAFOOD DEVELOPMENT PARTNERS, LLC, Plaintiffs vs. JOHN A. LEES, JR., JAL CONSULTING, INC., ML HOLDINGS, INC., LEES SEAFOOD HOLDINGS, LLC, MICHAEL F. SWEENEY, DUFFY & SWEENEY, LTD., NORATLANTIC 21, LLC, N.A. 21 HOLDINGS, LLC, and JAMES DWYER, Defendants MEMORANDUM OF DECISION AND ORDER ON LEES AND SWEENEY DEFENDANTS’ MOTIONS FOR RECONSIDERATION The Lees and Sweeney Defendants have moved for reconsideration or clarification of the Court’s ruling that Plaintiffs’ Count Six for breach of fiduciary duty survives summary judgment to the extent it is based on allegations that “Lees sold tilapia from TAF without providing plaintiffs an opportunity to participate in these transactions.” See Memorandum of Decision and Order dated July 22, 2016, at p.15. After carefully considering the arguments put forward by both partiesand on further review of the summary judgment record, this Court concludes that the Motion should be ALLOWED. The summary judgment record contains no evidence cognizable under Mass. R. Civ. P. 56(e) that Lees sold tilapia from TAF. In support of this allegation, Plaintiffs point to a statement in their Second Answers to Interrogatories in which they asserted that Lees “purchas[ed] and [sold] tilapia from TAF, at a profit, without providing Plaintiffs an opportunity to make the same business deal.” The statement, however, is not based on personal knowledge and therefore does not constitute admissible evidence under Rule 56(e). Plaintiffs also suggest that the Arbitration Award provides support for their claim. Quite the contrary is true. The Panel explicitly found that the transactions at issue were loansto TAF and not purchases or sales. Moreover, as to those loans, the Panel expressly found that the plaintiffs did not suffer any harm as a result of Lees making such loans. In so finding, it pointed out that New Mar-Lees had previously refused to extend credit to TAF and would not have loaned TAF money if it had been asked to do so. It also concluded that the loans were “designed to assist a business that [Lees] hoped would do more business with Mar-Lees,” gave TAF “the funds to purchase a substantial amount of product from Mar-Lees,” and “benefited rather than harmed Mar-Lees.” Award at p. 20. Given these findings and their collateral estoppel effect on these proceedings, plaintiffs may not assert a breach of fiduciary duty claim based on this set of allegations. SO ORDERED. __________________________________ Janet L. Sanders Justice of the Superior Court Dated: October 20, 2016 Full-text Opinions
Hillside FXF, LLC, et al. v. Premier Design + Build Group, LLC, et al. (Lawyers Weekly No. 12-147-16)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT SUCV2013-03831-BLS2 HILLSIDE FXF, LLC & JONES DEVELOPMENT COMPANY, LLC, Plaintiffs vs. PREMIER DESIGN + BUILD GROUP, LLC, HALEY & ALDRICH, INC., & G. LOPES CONSTRUCTION, INC., Defendants MEMORANDUM OF DECISION AND ORDER ON DEFENDANT HALEY & ALDRICH, INC.’S MOTION FOR SUMMARY JUDGMENT Plaintiffs Hillside FXF, LLC (Hillside) and Jones Development Company, LLC (Jones) filed this action against defendants, Haley & Aldrich, Inc. (Haley), Premier Design + Build Group, LLC (Premier), and G. Lopes Construction, Inc. (Lopes) seeking to recover damages relating to the construction of a freight facility in Northborough, Massachusetts. All three defendants have moved for summary judgment. This memorandum addresses that motion brought by the defendant Haley. The Plaintiffs’ Third Amended Complaint (the Complaint) asserts the following claims against Haley: breach of contract (Count II), gross negligence (Count VI), breach of express and implied warranties (Count VII), common law indemnity (Count VIII), reformation (Count IX), and negligent or intentional misrepresentation (Count X). Haley moves for summary judgment as to all of these counts. In the alternative, it argues that its liability must be capped pursuant to the written contracts it entered into with plaintiffs. The plaintiffs agree that summary judgment is appropriate as to Count VIII, their common law indemnity claim, but otherwise contest the 2 motion. This Court concludes that, with the exception of Count VIII, Haley’s motion must be Denied. BACKGROUND The relevant facts in the summary judgment record, viewed in the light most favorable to the plaintiffs, are as follows. Hillside and Jones, both based in Kansas City, Missouri, engage in commercial development and construction projects. On August 23, 2011, Hillside as the owner/developer and Premier as the general contractor entered into an agreement to construct a FedEx freight facility at 300 Bartlett Street, Northborough, Massachusetts (the Project). The Project’s plans required a significant amount of cut and fill and excavation work at the site to prepare for the building’s construction. The plaintiffs hired Haley to perform geotechnical consulting work as well as soil testing. Before construction began, Haley prepared a lengthy Report that summarized the results of subsurface soil explorations and made certain recommendations as to geotechnical design and construction for the proposed facility. This Report included Haley’s analysis of soil at the Project and its moisture contents, as well as its recommendation that compacted granular fill be used at certain areas of the site where unsuitable soils were located. On June 28, 2011, Haley and Hillside entered into a written agreement (the Reliance Agreement) stating that the services performed by Haley were subject to the scope of services expressed in the Report and that Hillside could rely on the Report, subject to certain terms and […]
MacKinnon, et al. v. Berluti, et al. (Lawyers Weekly No. 12-145-16)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION No. 13-4023 BLS 2 PAUL MACKINNON and THEODORE OLIVO, Plaintiffs vs. ROBERT R. BERLUTI and BERLUTI, McLAUGHLIN & KUTCHIN, LLP, Defendants FINDINGS OF FACT ON COUNT V OF COMPLAINT ALLEGING VIOLATION OF G.L.c. 93A This case involves a dispute between an attorney and two of his clients about the fee that the attorney collected in connection with a settlement of his clients’ contract and Wage Act claims against their former employer. The plaintiffs (the former clients) contend that the defendant attorney misled them as to the value of their claims and then collected as part of that settlement a fee that was excessive and substantially more than the contingent fee that the plaintiffs had originally agreed to pay. Plaintiffs asserted, among other things, claims for breach of contract and a violation of 93A. On September 26, 2016, the jury returned a verdict in favor of the defendants on the breach of contract counts. Specifically, they found that the written fee agreement that plaintiff Paul McKinnon had with the defendant Robert Berluti had been modified and that as a consequence of that modification, there was no breach of the fee agreement when the settlement proceeds were disbursed as they were. The jury made this finding in the context of a set of instructions which advised them of the special duties that an attorney owes to his client – duties which are fiduciary in nature. They also were instructed that the defendants bore the burden of 2 proving that there had been a modification. As to plaintiff Olivo, the jury found that he had no agreement with Berluti regarding the payment of attorney’s fees and therefore there was no breach of contract. This verdict was amply supported by the evidence. This Court reserved for itself the 93A Count. I informed the parties before submission of the contract count to the jury that I intended to adopt the findings of the jury as part of my own findings on the reserved 93A claim. I do so now. Moreover, there are no additional facts that plaintiffs have proven which would support the conclusion that the defendants engaged in unfair and deceptive business practices. Defendants are therefore entitled to judgment in their favor on this last remaining count in the case. In support thereof, this Court makes the following findings of fact. Olivo approached Berluti in 2008 about bringing a claim against his former employer Lindenmayr Monroe for unpaid commissions. Because Olivo had been terminated by the company and there was a possibility the company could assert counterclaims against him if he brought his own suit, it was agreed that Olivo would try to find […]
Commonwealth v. HealthDrive Corporation, et al. (Lawyers Weekly No. 12-140-16)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT SUCV2014-00772-BLS2 COMMONWEALTH OF MASSACHUSETTS Plaintiff vs. HEALTHDRIVE CORPORATION & ALEC H. JARET, D.M.D., P.C., Defendants MEMORANDUM OF DECISION AND ORDER ON (1) COMMONWEALTH’S MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST DEFENDANT ALEC H. JARET, D.M.D., P.C., D/B/A HEALTHDRIVE DENTAL GROUP AND (2) DEFENDANTS’ CROSS MOTION FOR PARTIAL SUMMARY JUDGMENT The Commonwealth of Massachusetts filed this action against defendants HealthDrive Corporation (HealthDrive) and Alec H. Jaret, D.M.D., P.C. (Jaret) seeking to recover alleged overpayments of approximately $ 1.1 million made by the Massachusetts Medicaid agency MassHealth in connection with dental “house calls” made to certain MassHealth members. The case is now before the Court on cross motions for partial summary judgment as to Count I of the Commonwealth’s Second Amended Complaint. That Count seeks to recover the alleged overpayments under regulations which require a provider to reimburse MassHealth in the event that it is paid more than it is legally entitled to receive. 130 C.M.R. §450.260(A), §450.237. The defendants also move for summary judgment in their favor on Counts X through XIII1 and, if this Court determines that they are entitled to retain the payments at issue, they seek dismissal of the remaining claims asserted against them. After careful review of the summary judgment 1 These Counts are all equitable in nature and are based on the same allegations as Count I. The Commonwealth does not move for summary judgment on these counts, however, because they are not available as equitable remedies if the regulation at issue is valid such that the Commonwealth has a remedy at law. 2 record, this Court concludes that the Commonwealth’s motion must be Allowed and the defendants’ motion must be Denied. BACKGROUND The summary judgment record reveals the following material facts. MassHealth is the Massachusetts Medicaid program and is administered by the Executive Office of Health and Human Services. It is a cooperative federal and state undertaking that provides payment for medical services to individuals and families unable to pay for their own medical care. Included in the care that MassHealth pays for are dental services for certain low income people. HealthDrive is a Delaware corporation that, in exchange for a monthly fee, provides business, management, and administrative assistance to health care providers who service geriatric populations living in long-term care facilities. Jaret is one of those providers, furnishing dental services to people covered under MassHealth who live in nursing homes or similar facilities. Pursuant to the agreement that Jaret has with HealthDrive, Health Drive submits claims to MassHealth on behalf of Jaret. Jaret and others like it enter into contracts with MassHealth in order to be reimbursed for the services they render. 130 C.M.R. §450.101. In those […]
Categories: News Tags: 1214016, Commonwealth, Corporation, HealthDrive, Lawyers, Weekly
McDonough v. Guyton, et al. (Lawyers Weekly No. 12-142-16)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT SUCV2015-03655-BLS2 ELINOR MCDONOUGH, Plaintiff vs. JOSEPH GUYTON, individually and d/b/a THE GUYTON GROUP, THE BULLFINCH GROUP INSURNACE AGENCY, INC., THE BULLFINCH GROUP INSURANCE GROUP, LLC, PARK AVENUE SECURITIES, LLC and THE GUARDIAN LIFE INSURANCE COMPANY, Defendants MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF’S MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT AND ON DEFENDANTS’ MOTION TO DISMISS In this action, plaintiff Elinor McDonough alleges that the defendant Joseph Guyton, individually and as an agent of other entities also named as defendants, not only mismanaged her finances and assets but encouraged her to make investment decisions that served the interest of the defendants at McDonough’s expense. On March 24, 2016, this Court (Salinger, J.) dismissed certain tort-based counts of the Complaint on the grounds that they were time-barred. Judge Salinger reasoned that the three year statute of limitations applicable to those claims began to run as of 2010, when the plaintiff necessarily became aware that she suffered some harm, not as of 2014 when she learned that the investments were unsuitable. In so holding, Judge Salinger noted that, if the Complaint had alleged that McDonough had a fiduciary duty to Guyton, then the limitations clock would begin to run only when she had actual knowledge of the unsuitability of the investments, and that was not (according to the Complaint) until 2014. 2 The plaintiff now moves to amend the Complaint to expressly allege the existence of a fiduciary relationship and has included facts which she contends are sufficient to support that. The defendants oppose the motion on the grounds that it adds no new allegations and also move, in the alternative, to dismiss the amended complaint pursuant to Rule 12(b)(6), Mass.R.Civ.P., if the plaintiff’s Motion is allowed. This Court concludes that the plaintiff’s Motion to Amend must be ALLOWED and the defendants’ Motion to Dismiss must be DENIED. The Court reaches this conclusion in light of the standard that must be applied at this early stage in this case. Although the Complaint must contain something “more than labels and conclusions” so that her entitlement to relief rises above the speculative level, see Iannachino v. Ford Motor Co., 451 Mass. 623, 636 (2008), the standard is nevertheless a generous one: this Court must accept as true all factual allegations and draw all reasonable inferences in favor of the plaintiff. This Court is also guided by those Massachusetts cases which have discussed what is necessary in order to find a fiduciary relationship. Although there are certain considerations that are relevant to the determination, it is inevitably a fact driven one. Patsos v. First Albany Corp., 433 Mass. 323, 332 (2001) (reversing summary judgment allowance because […]
Zuckert v. Fraen Mechatronics LLC, et al. (Lawyers Weekly No. 12-141-16)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT SUCV2015-02833-BLS2 JOSHUA S. ZUCKERT, Plaintiff vs. FRAEN MECHATRONICS LLC, FRAEN CORPORATION, FRAEN MACHINING CORPORATION, FRAEN MACHINING SRL HOLDING CORPORATION, FRAEN REAL ESTATE CORPORATION, FRAEN SRL HOLDING CORPORATION, & SK PATENTS LLC, Defendants MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Plaintiff Joshua S. Zuckert filed this action against defendant Fraen Corporation (Fraen) and related entities alleging breach of two agreements that concern a patent for a “rotary single-phase electromagnetic actuator,” a torque motor used in automobiles. Zuckert’s Complaint asserts the following claims: violation of G.L. c. 93A (Count I), fraud and deceit (Count II), breach of contract (Count III), breach of the implied covenant of good faith and fair dealing (Count IV), fraudulent misrepresentation (Count V), fraudulent concealment (Count VI), and misrepresentation (Count VII). On October 28, 2015, this Court denied defendants’ Motion to Dismiss for failure to state a claim upon which relief may be granted, although this judge did view the Complaint as “decidedly thin.” With discovery closed, the case is now before this Court on the defendants’ Motion for Summary Judgment. After careful review of the summary judgment record, this Court concludes that the plaintiff has no reasonable expectation of proving his claims, so that summary judgment in defendants’ favor is appropriate. 2 BACKGROUND The summary judgment record contains the following undisputed facts. Fraen, a Massachusetts corporation, manufactures electric motor and optical systems for the automotive industry. Zuckert, a mechanical engineer, was the holder of a patent for a torque motor used in automobiles. Zuckert approached Fraen about marketing such devices. In 2012, the parties entered into two agreements: a patent purchase agreement (PPA) and a sales representative agreement (SRA). The defendants’ performance under these agreements is what is at issue in this lawsuit. Under the PPA, Zuckert assigned all rights, title, and ownership interest to the patent rights for the torque motor to Fraen’s subsidiary, defendant SK Patents. In return, SK Patents and Fraen agreed to pay Zuckert a royalty of 0.25 percent on net sales of any product covered by the patent and a royalty of 5 percent of any licensing income, up to a total payment of $ 500,000. The patent rights transfer was permanent and irrevocable so long as Zuckert received at least $ 162,000 in compensation under the SRA by December 15, 2013. Paragraph 7 of the PPA expressly contemplated assignments, with no limitation on SK Patent’s ability to make such an assignment. The PPA also contains an integration clause. ¶10 of PPA. Under the SRA, Zuckert agreed to act as Fraen’s sales representative and to market the torque motor in a “worldwide territory.” Zuckert was required, among other things, to […]
Commonwealth v. Vick (Lawyers Weekly No. 11-161-16)
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-1150 Appeals Court COMMONWEALTH vs. TYRONE VICK. No. 14-P-1150. Suffolk. September 7, 2016. – November 8, 2016. Present: Kafker, C.J., Milkey, & Blake, JJ. Controlled Substances. Practice, Criminal, Motion to suppress. Constitutional Law, Investigatory stop, Reasonable suspicion, Probable cause, Search and seizure. Search and Seizure, Reasonable suspicion, Probable cause, Body examination. Probable Cause. Indictments found and returned in the Superior Court Department on June 7, 2007. A pretrial motion to suppress evidence was heard by Charles J. Hely, J., and the cases were tried before Judith Fabricant, J. Genevieve K. Henrique for the defendant. Nicholas Brandt, Assistant District Attorney, for the Commonwealth. KAFKER, C.J. The defendant, Tyrone Vick, was convicted of possession of a class B substance, see G. L. c. 94C, § 34, following a jury trial. He appeals, arguing that the motion judge erred in denying the defendant’s motion to suppress evidence seized as the result of a stop, a search at the scene, and a search at the police station.[1] The search at the police station involved the use of force to pull down the defendant’s pants and to remove a plastic bag containing drugs (which an officer had felt during the search at the scene) protruding from his buttocks. On appeal, the defendant claims that (1) the motion judge erred by failing to resolve conflicting testimony regarding material facts;[2] (2) the search at the police station constituted a manual body cavity search not supported by a warrant issued by a judge, as required by Rodriques v. Furtado, 410 Mass. 878, 888 (1991); and (3) the police station search, even if characterized as a strip or visual body cavity search, was unreasonably conducted, particularly because it was performed in violation of a Boston police department policy requiring a warrant for the use of force to effectuate such a search. We affirm. Background. “We summarize the facts found by the motion judge following the evidentiary hearing, supplemented where necessary with undisputed testimony that was implicitly credited by the [motion] judge.” Commonwealth v. Oliveira, 474 Mass. 10, 11 (2016). On May 9, 2007, at approximately 6:00 P.M., Boston police Officers Peter Cazeau and Linda Stanford, both in uniform, were on patrol in a marked cruiser near the intersection of Stuart and Tremont Streets, in an area of […]
Commonwealth v. Griffin (Lawyers Weekly No. 10-175-16)
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-11524 COMMONWEALTH vs. KRISTOPHER GRIFFIN. Bristol. April 8, 2016. – November 4, 2016. Present: Gants, C.J., Spina, Botsford, Duffly, & Hines, JJ.[1] Homicide. Home Invasion. Insanity. Mental Health. Evidence, Sanity. Practice, Criminal, Capital case, Assistance of counsel, Opening statement, Argument by prosecutor, Instructions to jury. Indictments found and returned in the Superior Court Department on September 28, 2009. The cases were tried before E. Susan Garsh, J. Neil L. Fishman for the defendant. Yul-mi Cho, Assistant District Attorney, for the Commonwealth. GANTS, C.J. In the late evening or early morning of July 23 and 24, 2009, the defendant broke into the house where his six year old daughter lived with the defendant’s former girl friend and slit his daughter’s throat, causing her death. A Superior Court jury convicted the defendant of murder in the first degree on the theories of deliberate premeditation and extreme atrocity or cruelty, in violation of G. L. c. 265, § 1, and of home invasion, in violation of G. L. c. 265, § 18C.[2] At trial, the defendant did not contest that he had killed the victim, but pursued a defense that he was not criminally responsible at the time of the killing. The defendant presents four claims on appeal. First, he contends that the evidence at trial was insufficient as a matter of law to permit a rational jury to find beyond a reasonable doubt that he was criminally responsible at the time of the killing. Second, he claims that his trial counsel provided ineffective assistance of counsel by admitting in his opening statement that the defendant’s conduct was “not psychotic.” Third, he contends that the prosecutors made improper remarks during their opening statement and closing argument. Fourth, he argues that the judge’s instruction regarding the consequences of a verdict of not guilty by reason of lack of criminal responsibility created a substantial likelihood of a miscarriage of justice. We affirm the defendant’s convictions, and having reviewed the entire record of the case pursuant to our duty under G. L. c. 278, § 33E, we find no reason to exercise our authority to order a new trial or to reduce the verdict of murder in the first degree. Background. Because the defendant challenges the sufficiency of the evidence, we recount the evidence in the light most favorable to the […]
Commonwealth v. Butler (Lawyers Weekly No. 11-160-16)
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 11-P-729 Appeals Court COMMONWEALTH vs. QUINCY BUTLER. No. 11-P-729. Suffolk. November 9, 2015. – November 4, 2016. Present: Cypher, Trainor, & Rubin, JJ. Homicide. Constitutional Law, Jury. Jury and Jurors. Practice, Criminal, Challenge to jurors, Jury and jurors, Capital case, Argument by prosecutor, Witness, Conduct of prosecutor. Evidence, Argument by prosecutor, Cross-examination, Credibility of witness. Witness, Cross-examination, Credibility. Perjury. Indictments found and returned in the Superior Court Department on May 4, 2004. The cases were tried before Patrick F. Brady, J. John M. Thompson for the defendant. Cailin M. Campbell, Assistant District Attorney (Patrick M. Haggan, Assistant District Attorney, with her) for the Commonwealth. CYPHER, J. The defendant, Quincy Butler, appeals from his convictions of murder in the second degree (G. L. c. 265, § 1), and eight related offenses.[1] The defendant was tried with a codefendant, William Wood, on a theory of joint venture for crimes committed in the course of a botched kidnapping and robbery attempt.[2] Wood was convicted of murder in the first degree and various other charges.[3] He appealed his convictions to the Supreme Judicial Court which found no reversible error and found no reason to reduce or reverse the conviction of murder in the first degree pursuant to its authority under G. L. c. 278, § 33E.[4] See Commonwealth v. Wood, 469 Mass. 266 (2014). On appeal, the defendant argues that he was deprived of equal protection and due process because the prosecutor engaged in racial and gender discrimination during jury empanelment. Specifically, he claims that the prosecutor attempted to select jurors who resembled the victim, a white female, and to avoid jurors who resembled the defendants, African American men. The defendant also argues several other issues, some of which were raised by Wood and reviewed and rejected by the Supreme Judicial Court in Wood, supra.[5] We affirm. The Supreme Judicial Court thoroughly explicated the facts of the case in Wood, supra. We will address relevant facts where necessary. Discussion. 1. Jury empanelment. “Article 12 of the Massachusetts Declaration of Rights proscribes the use of peremptory challenges ‘to exclude prospective jurors solely by virtue of their membership in, or affiliation with, particular, defined groupings in the community.’” Commonwealth v. Smith, 450 Mass. 395, 405 (2008), quoting from Commonwealth v. Soares, 377 Mass. […]