Shrine of Our Lady of La Salette Inc. v. Board of Assessors of Attleboro (Lawyers Weekly No. 10-049-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12021 SHRINE OF OUR LADY OF LA SALETTE INC. vs. BOARD OF ASSESSORS OF ATTLEBORO. Suffolk. December 5, 2016. – March 22, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Taxation, Real estate tax: abatement, Real estate tax: exemption, Real estate tax: classification of property. Real Property, Tax. Appeal from a decision of the Appellate Tax Board. The Supreme Judicial Court granted an application for direct appellate review. Diane C. Tillotson (Ryan P. McManus also present) for the taxpayer. Michael R. Siddall (James M. Hannifan also present) for board of assessors of Attleboro. Heidi A. Nadel, for Massachusetts Council of Churches & others, amici curiae, submitted a brief. Felicia H. Ellsworth, Eric L. Hawkins, & William R. O’Reilly, Jr., for Roman Catholic Archbishop of Boston & others, amici curiae, submitted a brief. GANTS, C.J. This is an appeal from a decision of the Appellate Tax Board (board) concerning property in Attleboro owned by the taxpayer, Shrine of Our Lady of La Salette Inc. (Shrine). The Shrine sought a tax abatement from the board, claiming that certain portions of its property were exempt from taxation under G. L. c. 59, § 5, Eleventh (Clause Eleventh), the exemption for “houses of religious worship.” The crux of the appeal is the scope of this exemption. For the reasons set forth below, we conclude that property is exempt from taxation under Clause Eleventh where the dominant purpose of the questioned portion of property is religious worship or instruction, or purposes connected with it. Applying this principle, we conclude that the board erred when it found that the Shrine’s “welcome center” and maintenance building were not exempt under Clause Eleventh. We affirm its denial of an abatement for the former convent that the Shrine leased to a nonprofit organization for use as a safe house for battered women, and for the wildlife sanctuary that was exclusively managed by the Massachusetts Audubon Society in accordance with a conservation easement. The safe house and wildlife sanctuary might have been exempt from real estate taxation under G. L. c. 59, § 5, Third (Clause Third), as the property of a benevolent or charitable organization devoted to charitable use, had the Shrine satisfied the filing requirements for such an exemption, but they were not exempt under Clause Eleventh.[1] Background. […]
Commonwealth v. Dragotta (Lawyers Weekly No. 10-048-17)
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-12186 COMMONWEALTH vs. HEATHER DRAGOTTA. Essex. December 6, 2016. – March 21, 2017. Present (Sitting at Lawrence): Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ.[1] Assault and Battery. Wanton or Reckless Conduct. Child Abuse. Indictments found and returned in the Superior Court Department on October 1, 2010. The cases were heard by Richard E. Welch, III, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Patrick Levin, Committee for Public Counsel Services, for the defendant. Marcia H. Slingerland, Assistant District Attorney, for the Commonwealth. BUDD, J. After a jury-waived trial, Heather Dragotta was convicted on one indictment charging her with wantonly or recklessly permitting another person to commit an assault and battery that resulted in bodily injury to her infant daughter (victim).[2] G. L. c. 265, § 13J. The injury, an interhemispheric subdural hematoma, that is, bleeding between the hemispheres of the victim’s brain, was recklessly inflicted by Dragotta’s boy friend, Steven Amos, after Dragotta left the victim in his sole care while she took a shower.[3] The Appeals Court affirmed Dragotta’s conviction, and we granted her application for further appellate review. Commonwealth v. Dragotta, 89 Mass. App. Ct. 119, S.C., 475 Mass. 1102 (2016). Because we conclude that the evidence was insufficient to establish that her conduct was wanton or reckless, we reverse the conviction. Background. Much of the evidence presented at trial was directed to explaining the victim’s injuries and their cause. Now, however, we are primarily concerned with Dragotta’s state of mind when she left the victim in Amos’s care to take a shower. Viewing the evidence at trial in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), the trial judge, as fact finder, reasonably could have found the following facts. The victim, who was Dragotta’s first child, was born on April 27, 2010. Amos was not the victim’s father, but he participated actively in her care and acted as her father in all respects.[4] After the birth, Dragotta and Amos temporarily stayed with Dragotta’s parents in Weare, New Hampshire, so that the victim’s grandmother could help with the baby. Also living in the Weare house were Dragotta’s brother and his girl friend, as well […]
Commonwealth v. Fantauzzi (Lawyers Weekly No. 11-030-17)
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-574 Appeals Court COMMONWEALTH vs. MIGUEL FANTAUZZI. No. 15-P-574. Suffolk. October 4, 2016. – March 21, 2017. Present: Kafker, C.J., Trainor, & Henry, JJ. Homicide. Self-Defense. Felony-Murder Rule. Firearms. Practice, Criminal, Instructions to jury. Indictments found and returned in the Superior Court Department on March 25, 2013. The cases were tried before Christine M. Roach, J. Katherine C. Riley for the defendant. Cailin M. Campbell, Assistant District Attorney, for the Commonwealth. KAFKER, C.J. The defendant, Miguel Fantauzzi, was convicted by a jury of voluntary manslaughter on an indictment that charged murder in the second degree.[1] On appeal, he claims that the trial judge’s jury instructions regarding the relationship of self-defense to felony-murder and voluntary manslaughter were erroneous and that the Commonwealth’s closing argument contained improper statements. We agree that the instructions in this particularly complicated case, where the underlying felony did not mark the defendant as either the aggressor or initiator of the violence, were incorrect, and therefore we reverse the conviction of voluntary manslaughter. Background. The jury were warranted in finding the following facts. On October 27, 2012, the victim, Christopher Powell, made plans with the defendant via text message to purchase drugs from the defendant. At 6:29 P.M., the defendant called the victim’s cellular telephone (cell phone) and talked with him for a little over a minute. Shortly thereafter, the defendant entered the rear passenger seat of the victim’s sport utility vehicle (SUV), which was parked on the street near 50 Clark Avenue in Chelsea. The victim sat in the driver’s seat, and his friend, Robert Dobay, sat in the front passenger seat. After the defendant entered the SUV, the drug deal went awry. The defendant, who had brought a loaded firearm to the meeting, fired two shots inside the SUV. The defendant got out of the SUV, which began rolling until it hit the vehicle in front of it. The defendant then fired two more shots at the SUV, one of which shattered the back passenger side window and the other of which went through the front passenger door, grazing Dobay’s leg. Dobay testified that after the shots were fired, he jumped out of the SUV and began running down Clark Avenue. As Dobay ran, he looked back and saw the defendant run […]
Chitwood v. Vertex Pharmaceuticals, Inc. (Lawyers Weekly No. 10-046-17)
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-12101 FRED CHITWOOD vs. VERTEX PHARMACEUTICALS, INC. Suffolk. November 9, 2016. – March 20, 2017. Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ.[1] Corporation, Stockholder, Custodian of corporate records. Civil action commenced in the Superior Court Department on August 15, 2013. The case was heard by Janet L. Sanders, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Steven J. Purcell, of New York (Justin Sherman, of New York, & Mitchell J. Matorin also present) for the plaintiff. Todd Cronan (William B. Brady also present) for the defendant. Ben Robbins & Martin J. Newhouse, for New England Legal Foundation, amicus curiae, submitted a brief. GANTS, C.J. Under G. L. c. 156D, § 16.02 (b), of the Massachusetts Business Corporation Act (act), a shareholder of a corporation, upon written notice, is entitled to inspect and copy various categories of corporate records if the shareholder makes the demand “in good faith and for a proper purpose,” and if the particular records sought to be inspected are “directly connected” with that purpose. The plaintiff, Fred Chitwood, a shareholder of the defendant Vertex Pharmaceuticals, Inc. (Vertex or the corporation), made a demand for corporate records pursuant to § 16.02 (b), claiming that inspection of the records was needed to investigate his allegation that the board of directors had committed a breach of its fiduciary duty of oversight with regard to Vertex’s financial reporting and insider stock sales. Vertex “rejected” the demand, claiming that the demand was “invalid under Massachusetts law” and that it was improper because the board, following a reasonable inquiry by a special committee of independent directors, had rejected his earlier demand to commence derivative litigation based on the same allegations of misconduct. The plaintiff commenced an action in the Superior Court, seeking an order compelling Vertex to make the requested corporate records available to the plaintiff. After a bench trial, the judge dismissed the complaint with prejudice, concluding that the plaintiff had failed to meet his burden of showing a proper purpose. The issue on appeal is whether the judge applied the correct standard regarding the proper purpose required to inspect corporate records under § 16.02 (b). We conclude that she did not. Because the judge applied too demanding a standard […]
Ferri, et al. v. Powell-Ferri, et al. (Lawyers Weekly No. 10-047-17)
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-12070 MICHAEL J. FERRI, trustee,[1] & others[2] vs. NANCY POWELL-FERRI & another.[3] Suffolk. November 8, 2016. – March 20, 2017. Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, & Budd, JJ.[4] Trust, Assets of trust, Distribution, Irrevocable trust, Spendthrift provision. Certification of a question of law to the Supreme Judicial Court by the Connecticut Supreme Court. Charles L. Solomont (Nathaniel Bruhn also present) for the plaintiffs. Jeffrey J. Mirman for Paul John Ferri, Jr. Kenneth Walton (Patricia B. Gary also present) for Nancy Powell-Ferri. Gaziano, J. In this case we are asked to answer three questions certified to us by the Connecticut Supreme Court concerning the authority of a trustee to distribute (i.e., to decant) substantially all of the assets of an irrevocable trust into another trust. The questions, arising out of divorce proceedings pending in Connecticut between Nancy Powell-Ferri and her husband Paul John Ferri, Jr., the beneficiary of a Massachusetts irrevocable trust, are as follows: “1. Under Massachusetts law, did the terms of the Paul John Ferri, Jr. Trust (1983 Trust) . . . empower its trustees to distribute substantially all of its assets (that is, to decant) to the Declaration of Trust for Paul John Ferri, Jr. (2011 Trust)? “2. If the answer to question 1 is ‘no,’ should either 75% or 100% of the assets of the 2011 Trust be returned to the 1983 Trust to restore the status quo prior to the decanting? “3. Under Massachusetts law, should a court, in interpreting whether the 1983 Trust’s settlor intended to permit decanting to another trust, consider an affidavit of the settlor . . . , offered to establish what he intended when he created the 1983 Trust?” For the reasons we discuss, we answer the first question and third questions yes, and do not answer the second question. Facts and procedural history. We recite the relevant facts presented in the Connecticut Supreme Court’s statement of facts for certification to this court. The Paul John Ferri, Jr. Trust, dated June 24, 1983 (1983 Trust), was settled by Paul J. Ferri for the sole benefit of his son, Paul John Ferri, Jr. (Ferri Jr. or beneficiary), when Ferri Jr. was eighteen years old. The trust was created in Massachusetts and is governed by Massachusetts […]
Commonwealth v. Kang (Lawyers Weekly No. 11-028-17)
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-1731 Appeals Court COMMONWEALTH vs. BYUNG-JIN KANG. No. 15-P-1731. Middlesex. November 7, 2016. – March 16, 2017. Present: Cypher, Massing, & Sacks, JJ. Firearms. Evidence, Firearm. Practice, Criminal, Instructions to jury. Complaints received and sworn to in the Newton Division of the District Court Department on February 15, 2013, and June 9, 2014. The cases were tried before Dyanne J. Klein, J. Robert L. Sheketoff for the defendant. Susan Leigh Harris, Assistant District Attorney, for the Commonwealth. CYPHER, J. The defendant, Byung-jin Kang, was convicted of carrying a loaded firearm without a license in violation of G. L. c. 269, § 10(n), and carrying a firearm without a license in violation of G. L. c. 269, § 10(a). On appeal, the defendant claims that he was improperly denied the opportunity to present the affirmative defense of the “antique” firearm exemption from licensure requirements, arguing that (1) evidence related to his defense was excluded; and (2) the judge improperly denied his request for a jury instruction on the antique firearm exemption. We affirm. Facts.[1] The incident in question arises from a roadside confrontation between the defendant and another driver.[2] During this confrontation, the second driver seized a firearm from the defendant and contacted police after the defendant left the scene in his vehicle. Police recovered this firearm, a small silver revolver, from the pavement near the other driver, and located the defendant a short distance from the scene. Officers discovered the firearm to be loaded, and later ballistic testing revealed it was capable of firing. At trial, the defendant did not contest possession. He testified that the firearm was his, and that he was aware that it was loaded. The defendant claimed, however, that the Commonwealth had failed to meet its burden to prove operability, arguing that the chain of custody evidence was insufficient, as were the qualifications of the police officer conducting the test-firing. Discussion. 1. Exclusion of antique firearm evidence. Prior to trial, the defendant indicated his intent to rely on the defense of exemption from the firearm licensure requirements for an antique firearm manufactured prior to 1900.[3] See Commonwealth v. Jefferson, 461 Mass. 821 (2012). In support of his defense, the defendant wanted to testify that he had purchased the firearm from “the online [Internet] store, antiqueguns.com,” from “a section […]
Commonwealth v. Rutherford (Lawyers Weekly No. 10-045-17)
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-12094 COMMONWEALTH vs. JAMES RUTHERFORD. Worcester. November 10, 2016. – March 16, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, & Lowy, JJ. Homicide. Practice, Criminal, Argument by prosecutor, Capital case. Evidence, Prior misconduct, State of mind. Indictments found and returned in the Superior Court Department on September 23, 2011. The cases were tried before Janet Kenton-Walker, J. Jennifer H. O’Brien for the defendant. Ellyn H. Lazar-Moore, Assistant District Attorney, for the Commonwealth. Gaziano, J. A Superior Court jury convicted the defendant of murder in the first degree on theories of deliberate premeditation and felony-murder, in the July, 2011, death of Francis Spokis.[1] At trial, the defendant conceded that he and his girl friend broke into the victim’s home, robbed him, beat him, and stabbed him to death. The defendant contended, however, largely through the testimony of an expert witness, that he was incapable of forming the intent required for murder because he was impaired by mental illness. The defendant raises two claims in this direct appeal. First, he argues that the prosecutor exceeded the bounds of permissible closing argument by engaging in a personal attack on the defendant’s expert witness, referencing facts not in evidence, and appealing to juror sympathy. Second, the defendant maintains that the trial judge erred by allowing the prosecutor to introduce unfairly prejudicial evidence of uncharged misconduct. The defendant also asks us to invoke our extraordinary power pursuant to G. L. c. 278, § 33E, to order a new trial or reduce the verdict. For the reasons that follow, we affirm the conviction and decline to grant relief under G. L. c. 278, § 33E. Facts. We recite the facts that the jury could have found, reserving some facts for later discussion of particular legal issues at hand. In the summer of 2011, the defendant and his girl friend, Lee Anne Chesko, planned to rob the victim at his house in Rutland over the Fourth of July holiday weekend. The victim’s wife and daughter were scheduled to take a vacation in Maine that weekend, while he remained behind to do some work on the house. The victim had met Chesko approximately six months earlier, and they had entered into a relationship whereby the victim gave Chesko money and drugs in exchange for sex. Most of their […]
Categories: News Tags: 1004517, Commonwealth, Lawyers, Rutherford, Weekly
Copley Place Associates, LLC v. Téllez-Bortoni (Lawyers Weekly No. 11-029-17)
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 16-P-165 Appeals Court COPLEY PLACE ASSOCIATES, LLC vs. CARLOS TÉLLEZ-BORTONI. No. 16-P-165. Suffolk. December 9, 2016. – March 16, 2017. Present: Milkey, Massing, & Sacks, JJ. Fraud. Deceit. Real Property, Lease. Contract, Lease of real estate. Practice, Civil, Summary judgment, Judgment notwithstanding verdict. Civil action commenced in the Superior Court Department on April 24, 2012. A motion for summary judgment was heard by Peter M. Lauriat, J.; the case was tried before Robert B. Gordon, J., and a motion for judgment notwithstanding the verdict was heard by him. Robert E. Curtis, Jr., for the defendant. Martin M. Fantozzi (David M. Zucker also present) for the plaintiff. SACKS, J. The defendant, Carlos Téllez-Bortoni, appeals from a judgment entered against him in favor of the plaintiff, Copley Place Associates, LLC (Copley), on claims for fraud and violation of G. L. c. 93A. He argues that a judge of the Superior Court erred in awarding Copley partial summary judgment against him on liability. We conclude that Copley’s motion failed to establish as undisputed fact that Copley relied to its detriment on false representations made by Téllez-Bortoni. We therefore vacate the judgment and remand for further proceedings. Background. Copley’s claims arose out of a failed venture in which Irish Pub Group, Inc. (IPG), was to have operated a restaurant in space leased from Copley in its mall located in Boston. Téllez-Bortoni signed the lease on IPG’s behalf. Section 24.11 of the lease stated, “If Tenant is or will be a corporation, the persons executing this Lease on behalf of Tenant hereby covenant and warrant that . . . the person signing this Lease on behalf of the corporation is an officer of Tenant, and is duly authorized to sign and execute this Lease.” Sometime after the lease was signed, Téllez-Bortoni informed Copley that one Raymond Houle was “a part of [IPG],” causing Copley to inform a bank that Houle could negotiate a large check Copley had issued to IPG as a portion of a “Landlord’s Contribution” provided for in the lease. Houle deposited the check in IPG’s account. IPG did not use the funds to further the project as required by the lease, the restaurant never opened, and Copley sued IPG, Téllez-Bortoni, Houle, and others on a variety of theories, seeking to recover amounts […]
Categories: News Tags: 1102917, Associates, Copley, Lawyers, Place', TéllezBortoni, Weekly
In the Matter of N.L. (Lawyers Weekly No. 10-044-17)
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-12183 IN THE MATTER OF N.L. Middlesex. December 5, 2016. – March 14, 2017. Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Mental Health. Practice, Civil, Commitment of mentally ill person, Continuance, Moot case. Moot Question. Petitions for civil commitment and to authorize medical treatment filed in the Cambridge Division of the District Court Department on November 3, 2014. A motion for a continuance was heard by Roanne Sragow, J., and the petitions were also heard by her. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Karen Owen Talley for the respondent. Diane M. Geraghty Hall for the petitioner. Anna Krieger, Robert D. Fleischner, Jennifer Honig, & Phillip Kassel, for Center for Public Representation & another, amici curiae, submitted a brief. LOWY, J. N.L. appeals from the order for his civil commitment to a mental health facility (hospital), pursuant to G. L. c. 123, §§ 7 and 8, and the order authorizing his treatment with antipsychotic medications pursuant to G. L. c. 123, § 8B. He argues that the District Court judge improperly denied his prehearing request for a continuance to allow time for his counsel to prepare an adequate defense and an independent medical examiner to complete a psychiatric evaluation. We transferred the case from the Appeals Court to this court on our own motion. We dismiss the appeal as moot but exercise our discretion to address the issue before us, which is whether a judge may deny a person’s (or the person’s counsel’s) first request for a continuance of a hearing pursuant to G. L. c. 123, § 7 (c) or 8B. We hold that where a person or his or her counsel requests such a continuance, the grant of the continuance is mandatory where a denial thereof is reasonably likely to prejudice a person’s ability to prepare a meaningful defense.[1] Background. 1. Facts. N.L. was admitted to the hospital on October 30, 2014, under the emergency hospitalization provisions of G. L. c. 123, § 12. On November 3, the hospital filed a petition for commitment pursuant to G. L. c. 123, §§ 7 and 8, and a petition for determination of incompetency and for authorization for medical treatment for mental illness pursuant to G. L. c. 123, § 8B. Counsel was appointed for N.L. […]
Patriot Power, LLC v. New Rounder, LLC, et al. (Lawyers Weekly No. 11-027-17)
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 16-P-420 Appeals Court PATRIOT POWER, LLC[1] vs. NEW ROUNDER, LLC, & another.[2] No. 16-P-420. Middlesex. December 8, 2016. – March 13, 2017. Present: Kafker, C.J., Grainger, & Sullivan, JJ. Declaratory Relief. Practice, Civil, Declaratory proceeding, Burden of proof, Instructions to jury. Contract, Lease of real estate, Condition, Termination. Landlord and Tenant, Termination of lease. Real Property, Lease. Notice. Civil action commenced in the Superior Court Department on March 24, 2014. The case was tried before Bruce R. Henry, J. Mark C. O’Connor (Douglas S. Denny-Brown also present) for the plaintiff. Robert F. Feeney for the defendants. KAFKER, C.J. The issue presented in this declaratory judgment and breach of contract action is which party bears the burden of proof at trial regarding the exercise of a termination option in a lease. The plaintiff, Patriot Power, LLC, doing business as MandaShan Enterprises, was the landlord in a commercial lease; the defendant New Rounder, LLC, was the tenant, and the defendant Concord Music Group, Inc., was the guarantor (we refer to the defendants collectively as tenant). The lease provided that it would automatically renew each year unless either party timely notified the other that it wished to exercise a termination option in the lease. In the instant case, the landlord filed a complaint seeking a declaratory judgment that the tenant had not effectively terminated the lease, and asking for one year’s rent plus consequential damages. The tenant answered and counterclaimed, seeking a declaratory judgment that it had properly notified the landlord of its intention to terminate. The landlord sought a pretrial ruling that the tenant had the burden of proof at trial on the issue of whether it sent a lease termination letter before the nonrenewal deadline. A judge denied the motion, ruling that as the “moving party,” the landlord bore the burden to prove it did not receive the termination letter on time. At trial, a different judge instructed the jury in accordance with the pretrial ruling. The landlord objected to this instruction. The jury returned a verdict in favor of the tenant. On appeal, the landlord contends that the trial judge’s burden of proof instruction was erroneous and prejudicial.[3] We conclude that the tenant had the burden to prove it fulfilled the termination option requirements outlined in the […]