Baker, et al. v. Wilmer Cutler Pickering Hale and Dorr LLP, et al. (Lawyers Weekly No. 11-094-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-639 Appeals Court CHRISTIAN BAKER & others[1] vs. WILMER CUTLER PICKERING HALE AND DORR LLP & others.[2] No. 16-P-639. Suffolk. February 13, 2017. – July 21, 2017. Present: Kafker, C.J., Carhart, & Desmond, JJ.[3] Limited Liability Company. Fiduciary. Corporation, Stockholder, Close corporation. Attorney at Law, Fiduciary duty, Attorney-client relationship. Conspiracy. Consumer Protection Act, Trade or commerce. Practice, Civil, Motion to dismiss, Consumer protection case. Civil action commenced in the Superior Court Department on May 28, 2015. Motions to dismiss were heard by Kenneth W. Salinger, J. Dana Alan Curhan for the plaintiffs. Erin K. Higgins (Kathleen R. O’Toole also present) for Gunderson Dettmer Stough Villeneuve Franklin & Hachigian LLP & another. Richard M. Zielinski for Wilmer Cutler Pickering Hale and Dorr LLP & another. KAFKER, C.J. Minority members of a Massachusetts limited liability company seek to hold the company’s attorneys liable for their involvement in an alleged “freeze-out” orchestrated by and on behalf of the majority members. According to the minority members, the majority members secretly retained the attorneys, one of whom is the daughter of a majority member, to, at least ostensibly, represent the closely held company. The attorneys then worked behind the scenes to assist the majority in merging the company with and into a newly created Delaware limited liability company, all for the purpose of eliminating significant protections afforded minority members under the Massachusetts company’s operating agreement. By the time the attorneys’ involvement came to light, the majority members had unfettered control of the resulting entity, with a new operating agreement that extinguished the minority’s rights to, among other things, participate in management, access the company’s records, and prevent dilution of their interests. The minority members, the plaintiffs in this action, responded by asserting claims against the attorneys and their respective law firms for breach of fiduciary duty, aiding and abetting tortious conduct, civil conspiracy, and violation of G. L. c. 93A. The matter now comes before this court for de novo review after a judge of the Superior Court, acting on motions filed by the defendants, dismissed the plaintiffs’ claims against the attorneys and their law firms for failure to state a claim upon which relief can be granted. See Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974). For the reasons discussed below, we reverse the […]
Strawbridge v. The Bank of New York Mellon (Lawyers Weekly No. 11-093-17)
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-1244 Appeals Court SANDRA M. STRAWBRIDGE vs. THE BANK OF NEW YORK MELLON.[1] No. 16-P-1244. Norfolk. May 1, 2017. – July 20, 2017. Present: Agnes, Massing, & Lemire, JJ. Mortgage, Foreclosure, Assignment. Real Property, Mortgage. Notice, Foreclosure of mortgage. Assignment. Practice, Civil, Motion to dismiss. Civil action commenced in the Superior Court Department on August 11, 2015. A motion to dismiss was heard by Jeffrey A. Locke, J., and a motion for reconsideration was considered by him. Glenn F. Russell, Jr., for the plaintiff. Anthony J. Coletti for the defendant. AGNES, J. The plaintiff, Sandra M. Strawbridge, appeals from a judgment of the Superior Court dismissing her verified complaint for declaratory and injunctive relief, which challenges the action of the defendant, Bank of New York Mellon (Bank), as trustee for the Certificateholders CWABS, Inc., Asset Backed Certificates Series 2007-10 (CWABS trust), to foreclose on her property. She maintains that the judge erred in applying G. L. c. 244, § 14, and some of our recent case law. As Strawbridge has failed to state a plausible claim that the Bank, at the time of foreclosure, did not hold both the mortgage and the note, see Eaton v. Federal Natl. Mort. Assn., 462 Mass. 569, 583-589 (2012), and based on the sound reasoning in the judge’s thorough memorandum of decision, we affirm. Background. The verified complaint, viewed in a light most favorable to Strawbridge, contains the following facts. In 2007, Strawbridge received a $ 370,000 loan as part of a home refinancing arrangement with Countrywide Home Loans, Inc. (Countrywide). In exchange for the loan, Strawbridge executed a promissory note payable to Countrywide, and granted a mortgage on the subject property to secure payment for the note. The mortgage identified Countrywide as the “Lender” and Strawbridge as the “Borrower.” The mortgage also designated Mortgage Electronic Registration Systems, Inc. (MERS)[2] as the mortgagee, “acting solely as a nominee for Lender and Lender’s successors and assigns.” Although MERS held the mortgage solely as a nominee for Countrywide, the mortgage contained a provision authorizing MERS to act on behalf of Countrywide in the event of a default.[3] In 2009, Strawbridge defaulted on her note by failing to keep up with her mortgage payments. In February, 2010, MERS assigned Strawbridge’s mortgage to the Bank. A MERS […]
Commonwealth v. Veiovis (Lawyers Weekly No. 10-121-17)
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-12017 COMMONWEALTH vs. CAIUS VEIOVIS. Berkshire. November 10, 2016. – July 19, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, & Lowy, JJ. Homicide. Evidence, Photograph, Relevancy and materiality, Inflammatory evidence, Prior misconduct, Identity, State of mind, Motive. Practice, Criminal, Capital case, Argument by prosecutor, Instructions to jury. Indictments found and returned in the Superior Court Department on October 6, 2011. The cases were tried before C. Jeffrey Kinder, J. Dana Alan Curhan (Christie L. Nader also present) for the defendant. David F. Capeless, District Attorney for the Berkshire District, for the Commonwealth. GANTS, C.J. The defendant was found guilty by a Superior Court jury on three indictments charging murder in the first degree on the theory of deliberate premeditation for the grisly killing of David Glasser, Edward Frampton, and Robert Chadwell.[1] The Commonwealth’s theory of the case was that the defendant participated in these killings with Adam Lee Hall and David Chalue to prevent Glasser from testifying against Hall in two criminal cases. They kidnapped Frampton, who was Glasser’s roommate, and Chadwell, who was Glasser’s neighbor, simply because Frampton and Chadwell had the misfortune of being in Glasser’s apartment when they entered to kidnap and later kill Glasser, and then killed Frampton and Chadwell to ensure their silence regarding the kidnapping and killing of Glasser. After the three victims were killed, the defendant, Hall, and Chalue dismembered their bodies and placed the body parts in plastic bags, and Hall arranged for the burial of the plastic bags.[2] The defendant presents four primary claims on appeal: (1) that the evidence of his knowing participation in these crimes was insufficient as a matter of law to support his convictions; (2) that the judge abused his discretion in admitting evidence of other acts the probative value of which was outweighed by the risk of unfair prejudice; (3) that the judge abused his discretion in admitting in evidence a statement by the defendant regarding the scars on his right arm; and (4) that the prosecutor presented facts in closing argument that were not supported by the evidence at trial. We affirm the convictions and conclude that the defendant is not entitled to relief under G. L. c. 278, § 33E. Background. Because the defendant challenges the sufficiency of the evidence at trial, “we […]
Gund, et al. v. Planning Board of Cambridge, et al. (Lawyers Weekly No. 11-091-17)
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-1339 Appeals Court GRAHAM GUND & others[1] vs. PLANNING BOARD OF CAMBRIDGE & others.[2] No. 15-P-1339. Suffolk. October 7, 2016. – July 19, 2017. Present: Agnes, Maldonado, & Desmond, JJ. Courthouse. Zoning, Nonconforming use or structure, Governmental use. Governmental Immunity. County, Municipal zoning by-laws. Municipal Corporations, Governmental immunity, By-laws and ordinances. Civil action commenced in the Land Court Department on November 19, 2014. Motions for summary judgment were heard by Robert B. Foster, J., and entry of separate and final judgment was ordered by him. Mark Bobrowski for the plaintiffs. Kevin P. O’Flaherty for LMP GC Holdings, LLC. Vali Buland, Assistant City Solicitor, for planning board of Cambridge. Adam Hornstine, Assistant Attorney General, for the Commonwealth. MALDONADO, J. The Edward J. Sullivan Court House (court house) was constructed by Middlesex County (county) between 1968 and 1974 on land owned by the county on Thorndike Street in Cambridge (city). First owned by the county and then, after 1997, by the Commonwealth, the court house was immune from the local zoning ordinance when it was built, and in the ensuing years when it housed the Superior Court, the Cambridge Division of the District Court Department, and associated court offices through 2009, and a jail facility through 2014. Defendant LMP GP Holdings, LLC (developer), is a private entity that has entered into a purchase and sale agreement with the Commonwealth to purchase the court house and has taken steps to obtain approvals to redevelop it. The sole issue on appeal is whether the court house, when it loses its governmental immunity by transfer to the developer, will constitute a preexisting nonconforming structure under G. L. c. 40A, § 6, and § 8.22.2(a) of the relevant zoning ordinance such that redevelopment may be approved by special permit.[3] A judge of the Land Court concluded on summary judgment in a well-reasoned decision that c. 40A, § 6, and § 8.22.2(a) of the zoning ordinance govern the developer’s efforts to redevelop the property, and we affirm.[4] Background. The background facts are not in dispute and are largely derived from an agreed statement of facts. On October 30, 2014, the planning board of Cambridge (planning board) granted four special permits to the developer authorizing the redevelopment of the court house to include twenty stories and 476,303 gross square feet of office, […]
Commonwealth v. Biesiot (Lawyers Weekly No. 11-092-17)
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-314 Appeals Court COMMONWEALTH vs. JOHN H. BIESIOT. No. 16-P-314. Suffolk. January 10, 2017. – July 19, 2017. Present: Grainger, Wolohojian, & Neyman, JJ.[1] Practice, Criminal, Required finding. Evidence, Consciousness of guilt, Identity, Inference. Massachusetts Bay Transportation Authority. Complaints received and sworn to in the Brighton Division of the Boston Municipal Court Department on February 18, 2010, February 15, 2012, and September 25, 2012. The cases were tried before David T. Donnelly, J. Dana Alan Curhan for the defendant. Nicholas Brandt, Assistant District Attorney, for the Commonwealth. NEYMAN, J. After a jury trial in the Brighton Division of the Boston Municipal Court Department, the defendant, John H. Biesiot, was convicted of fifteen counts of vandalizing property. On appeal, he contends that the evidence was insufficient to establish that he committed the offenses.[2] We affirm in part and reverse in part. Background. We summarize the facts as the jury could have found them, reserving certain details for our analysis of the issues raised on appeal. Lieutenant Detective Nancy O’Loughlin (Lieutenant O’Loughlin) of the Massachusetts Bay Transportation Authority (MBTA) police has spent nearly three decades investigating and prosecuting graffiti vandalism, also referred to as “tagging.” See Commonwealth v. Iago I., 77 Mass. App. Ct. 327, 331 (2010) (referencing practice of spray painting name or sign on particular location as “tagging”). She had extensive training on and experience with investigating tagging incidents and the tagging “subculture.”[3] Lieutenant O’Loughlin described how individuals engaged in the tagging subculture tend to adopt a “specific tag name,” which is akin to a signature that represents the tagger’s identity, and provides the tagger “credit or fame.” She testified that taggers often congregate and form a “crew,” adopt a crew name, typically with a three-letter acronym, and “go out on missions” to place their crew and individual tags on a targeted location, often at or near rival crews’ tags. The crew tag is often placed “alongside the [individual’s] tag, or somewhere in the tag.” In October, 2005, Lieutenant O’Loughlin, later assisted by members of a joint task force that included Boston police Detective William Kelley, began to investigate a series of related tagging incidents in the Boston area involving MBTA property.[4] Specifically, on October 12, 2005, the tag “Wyse” was found on trains at the […]
Commonwealth v. Rivera (Lawyers Weekly No. 11-090-17)
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-331 Appeals Court COMMONWEALTH vs. JAVIER RIVERA. No. 16-P-331. Bristol. April 5, 2017. – July 17, 2017. Present: Milkey, Sullivan, & Desmond, JJ. Possession of Burglarious Instruments. Constitutional Law, Identification. Due Process of Law, Identification. Identification. Practice, Criminal, Required finding, Motion to suppress, Argument by prosecutor. Complaint received and sworn to in the Fall River Division of the District Court Department on March 27, 2014. A pretrial motion to suppress evidence was heard by Kevin J. Finnerty, J., and the case was tried before him. Meghan K. Oreste for the defendant. Robert P. Kidd, Assistant District Attorney, for the Commonwealth. SULLIVAN, J. The defendant, Javier Rivera, appeals from his conviction of possession of a burglarious instrument, in violation of G. L. c. 266, § 49.[1] The defendant contends that (1) the evidence was insufficient to show that he possessed a burglarious instrument with intent to commit a crime, (2) the showup procedure was unnecessarily suggestive, and (3) the prosecutor argued facts not in evidence in his closing argument. We affirm. Sufficiency. Viewing the evidence in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), a reasonable jury could find that on the night of March 27, 2014, at around 1:45 A.M., a witness saw two men across the street from his home. The street was otherwise deserted.[2] The men were standing in front of a convenience store, wearing dark clothing.[3] While one of the men was banging on the door with a bar or a crowbar, the other was standing facing the street and looking in both directions. Periodically, both men walked away to check the street. Eventually, they left and the witness called the police. When an officer arrived, he noticed that the door to the convenience store had been pried open at the bottom, and there was a softball-sized hole in the door. Another officer, who also arrived at the scene, drove around the immediate area with the car windows open searching for two men who fit the witness’s description. After driving for approximately ten minutes he saw two men in dark clothing about one-half mile from the store. The officer also heard “somebody drop some kind of metallic object, like a hard object fell on the ground” near the […]
Cave Corporation v. Conservation Commission of Attleboro (Lawyers Weekly No. 11-088-17)
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-944 Appeals Court CAVE CORPORATION vs. CONSERVATION COMMISSION OF ATTLEBORO. No. 16-P-944. Plymouth. April 6, 2017. – July 14, 2017. Present: Green, Blake, & Lemire, JJ. Municipal Corporations, Conservation commission, By-laws and ordinances. Wetlands Protection Act. Civil action commenced in the Superior Court Department on January 9, 2015. The case was heard by Richard J. Chin, J., on a motion for judgment on the pleadings, and a motion for clarification or reconsideration was considered by him. Matthew Watsky for the plaintiff. Rebekah Lacey for the defendant. GREEN, J. When a municipal conservation commission fails to act timely on a notice of intent for work affecting wetlands, the applicant is entitled to seek relief from the Department of Environmental Protection (DEP). G. L. c. 131, § 40. If, on the applicant’s request for relief, the DEP thereafter issues a superseding order of conditions authorizing the work described in the notice of intent, the superseding order controls the work under the Wetlands Protection Act (act), G. L. c. 131, § 40, notwithstanding any more restrictive provisions of an otherwise applicable municipal wetlands ordinance or by-law. See Oyster Creek Preservation, Inc. v. Conservation Commn. of Harwich, 449 Mass. 859, 865 (2007). Cave Corporation (Cave), the plaintiff in the present case, contends that such a superseding order operated to divest the conservation commission of Attleboro (commission) of all authority to regulate activity on the land subject to the superseding order, even if the same land is also the subject of a separate notice of intent on which the commission acted timely.[1] A judge of the Superior Court disagreed, and we affirm. Background. The Attleboro city council adopted the Attleboro wetlands protection ordinance (ordinance) on October 2, 2001, and the commission, acting pursuant to authority delegated by the ordinance, promulgated rules and regulations thereafter. Section 18-1.1 of the ordinance recites as its purpose: “to protect the wetlands, water resources, and adjoining land areas in Attleboro by controlling activities deemed by the Conservation Commission likely to have a significant or cumulative effect upon resource area values, including but not limited to the following: public or private water supply, groundwater, flood control, erosion and sedimentation control, storm damage prevention including coastal storm flowage, water quality, water pollution control, fisheries, wildlife habitat, rare species habitat including rare plant species, agriculture, […]
Categories: News Tags: 1108817, Attleboro, Cave, Commission, Conservation, Corporation, Lawyers, Weekly
S.M., et al. v. M.P., et al. (Lawyers Weekly No. 11-089-17)
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-1047 Appeals Court S.M. & another[1] vs. M.P. & another.[2] No. 15-P-1047. Bristol. April 12, 2016. – July 14, 2017. Present: Green, Trainor, & Milkey, JJ. Adoption, Visitation rights. Minor, Adoption, Visitation rights. Parent and Child, Adoption. Jurisdiction, Juvenile Court, Equitable. Juvenile Court, Jurisdiction. Contract, Visitation rights, Condition, Implied covenant of good faith and fair dealing. Complaint in equity filed in the Bristol County Division of the Juvenile Court Department on July 14, 2014. The case was heard by Siobhan E. Foley, J. Harold N. Robertson for the defendants. TRAINOR, J. The plaintiffs are the biological parents of two children whom the defendants have adopted. At the time the plaintiffs (biological parents) surrendered their parental rights, they entered into open adoption agreements with the defendants (adoptive parents) that allowed for continued visitation on certain specified terms.[3] After the adoptive parents notified the biological parents that they were terminating visitation under the agreements, the biological parents filed an equity complaint for noncompliance with the adoption agreements, seeking their specific performance. Following a hearing, a Juvenile Court judge ruled in the biological parents’ favor, while at the same time ordering them to discontinue a particular practice that the adoptive parents opposed. On the adoptive parents’ appeal, we vacate the judge’s order and remand the matter for further proceedings. Background. The older child, Abby,[4] was born on June 2, 2008. From about two weeks after her birth until thirteen months old, she lived with a cousin. At age thirteen months, she was placed with her now parents, who adopted her when she was about three and one-half years old. She has diagnoses of fetal alcohol syndrome, neurosensory hearing loss, and anxiety. She uses hearing aids; she has had physical therapy and occupational therapy services; she is followed by a speech therapist; and she has been involved with a counselor at school. The child was subject to a care and protection petition brought by the Department of Children and Families (DCF) in the Bristol County Division of the Juvenile Court Department. That matter was ultimately concluded with the biological parents and the adoptive parents executing an open adoption agreement. On January 1, 2012, the biological parents had a second child, Betsy.[5] She was born with neonatal abstinence syndrome and was […]
Commonwealth v. Cooley (Lawyers Weekly No. 10-119-17)
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-11691 COMMONWEALTH vs. EDWARD COOLEY. Hampden. March 10, 2017. – July 13, 2017. Present: Gants, C.J., Gaziano, Lowy, & Budd, JJ. Homicide. Robbery. Firearms. Joint Enterprise. Evidence, Joint venturer, Exculpatory. Practice, Criminal, New trial, Capital case. Indictments found and returned in the Superior Court Department on June 29, 2010. The cases were tried before Mary-Lou Rup, J., and a motion for a new trial, filed on October 24, 2011, was heard by her. Stephen Paul Maidman for the defendant. David L. Sheppard-Brick, Assistant District Attorney, for the Commonwealth. BUDD, J. In the early morning hours of March 20, 2010, Nicholas Hiller was shot and killed in Springfield while sitting in his motor vehicle. The defendant, Edward Cooley, was indicted and ultimately convicted by a jury of murder in the first degree on a theory of felony-murder,[1] as well as unlawful possession of a firearm and wilful interference with a criminal investigation. In this consolidated appeal, the defendant claims that the judge erred in denying his motion for a required finding of not guilty of murder in the first degree and unlawful possession of a firearm. The defendant further argues that the judge improperly denied his motion for a new trial, which was based on the Commonwealth’s failure to disclose allegedly exculpatory evidence that had been specifically requested. We affirm the defendant’s convictions and the judge’s order denying his motion for a new trial. After a review of the entire record, we also decline to reduce or set aside the defendant’s murder conviction under G. L. c. 278, § 33E. Background. We summarize the facts in the light most favorable to the Commonwealth, reserving certain details for discussion of specific issues. At approximately 12:20 A.M. on March 20, 2010, in a Springfield neighborhood, a witness heard two shots fired. She looked out her window and saw two men speaking in a “panicking way”; the men then ran in opposite directions. Other witnesses also heard the gunshots, soon followed by the sound of a motor vehicle crashing. The victim’s motor vehicle had crashed through a fence, struck another vehicle, and come to a stop in the yard of one of the witnesses. The victim was slumped over in the driver’s seat and bleeding heavily. As the witnesses […]