O’Connor Constructors, Inc. v. HVAC Compensation Corporation, et al. (Lawyers Weekly No. 12-099-17)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION NO. 15-0205-BLS1 O’CONNOR CONSTRUCTORS, INC. vs. HVAC COMPENSATION CORPORATION and others1 MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT In this action, the plaintiff, O’Connor Constructors, Inc. (O’Connor), seeks to recover sums paid by the defendant HVAC Compensation Corporation (HVAC), a non-profit corporation established as a workers compensation self-insurance group or SIG, to purchase a loss portfolio transfer (LPT) insurance policy. O’Connor withdrew from HVAC at the end of 2009. It asserts that a substantial portion of the surplus that HVAC used to purchase the LPT policy should have been distributed to it as dividend. O’Connor also seeks to set aside an assessment that HVAC issued against O’Connor for additional funds to cover a liquidity deficit created by the purchase of the LPT policy. The additional defendants are the trustee/directors of HVAC (hereafter referred to as the Directors), each of whom are representatives of the companies that comprise the SIG, as well as the member companies themselves. While O’Connor’s complaint initially pled seven counts, four were previously dismissed. Three counts remain: breach of contract (Count I), breach of fiduciary duty (Count VI), and violation of G.L. c. 93A (Count VII). The 1 (i) Richardd Donohoe, William J. Lynch, Kevin R. Gill, James Morgan, Paul M. Level, Jr., and Shane B. Hamel, each sued individually and as Trustee/Director of HVAC, and (ii) Harrington Bros. Corporation, William V. Lynch Co., Inc., McCusker-Gill co., Inc., Worcester Air Conditioning, LLC, Le Bel, Inc., and Hamel & McAlister, Inc. 2 case is now before the court on the defendants’ motion for summary judgment. For the following reasons, the motion is DENIED as to Counts I and VI and ALLOWED as to Count VII. FACTS The following facts are either undisputed or viewed in the light most favorable to O’Connor, the non-moving party. In 1992, HVAC was organized to operate as a workers’ compensation SIG pursuant to G.L. c. 152, §§25E – 25U. Its members were companies principally engaged in the heating, ventilation, and air conditioning trades in Massachusetts. While a SIG is permitted to organize itself in various forms, HVAC was organized as a not-for-profit corporation under G.L. c. 180, § 4(n). Each HVAC member is required to enter into an Application and Indemnity Agreement (Indemnity Agreement) and is bound by HVAC’s by laws. Material to this case is a provision in G.L. c. 180, § 3 which provides that not-for-profit corporations, like HVAC, may not through their articles of organization or bylaws eliminate the personal liability of its directors “ (i) for any breach of the . . . director’s duty of loyalty to the corporation or its members, (ii) for […]
Categories: News Tags: 1209917, Compensation, Constructors, Corporation, HVAC, Inc., Lawyers, O’Connor, Weekly
Mooney, et al. v. Diversified Business Communications, et al. (Lawyers Weekly No. 12-116-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT SUCV2016-3726-BLS2 JOHNJ. MOONEY and MORGAN D. WHEELOCK, Plaintiffs vs. DIVERSIFIED BUSINESS COMMUNICATIONS, DBC PRI-MED, LLC, THEODORE WIRTH, KATHY WILLING, and OAKLEY DYER Defendants MEMORANDUM OF DECISION AND ORDER ON REMAING ISSUES RELATED TO PLAINTIFFS’ MOTION TO COMPEL After a hearing on July 11, 2017, this Court allowed that part of the plaintiffs’ Motion to Compel which concerned the production of certain Board of Directors minutes of the defendant Diversified Communications. See Memorandum of Decision and Order on Plaintiffs’ Motion to Compel, dated July 20, 2017. As to the remainder of the motion, this Court concluded that the defendants could withhold certain documents based on a claim of privilege, provided that the privilege had been properly asserted as to those documents actually withheld (represented by both sides to be a couple of dozen); that determination would be made by the Court after it reviewed those documents in camera. The Court also allowed the defendants time to respond to a last-minute assertion by the plaintiffs that any claim of privilege had been waived. After a flurry of additional briefing and after conducting an in camera review, this Court concludes that the defendants need not to produce any additional documents and that the plaintiffs must return to the defendants those documents that had been produced inadvertently. In reaching this decision, the Court has reviewed the 28 documents listed on the defendants’ privilege log as being withheld in their entirety. That review showed that — notwithstanding the plaintiffs’ arguments to the contrary – every document involved or discussed communications between and among corporate representatives of the defendant Pri-Med and Pri-Med’s counsel in connection with litigation threatened by a former Pri-Med employee Lynn Long. After the July 11 hearing, the plaintiffs submitted an additional brief that largely reargued their position that the privilege should not, as a matter of law, prevent plaintiffs from obtaining the documents. Plaintiffs also argued — for the first time — that this Court should also review in camera documents that had been produced by defendants but in redacted form. There being no suggestion that defendants are asserting a privilege without any factual basis for doing so, this Court sees no need to expand its review to these additional documents. Defendants have produced thousands of documents in a fairly short time frame and have appeared to have worked in good faith and with due diligence to fulfill their discovery obligations. Continuing judicial oversight of the discovery process is neither a wise use of judicial resources nor necessary under the circumstances. Just as plaintiffs have sought to expand the number of documents subject to in […]
Categories: News Tags: 1211617, Business, Communications, Diversified, Lawyers, Mooney, Weekly
Cort v. Majors (Lawyers Weekly No. 11-112-17)
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-694 Appeals Court TCHAD CORT vs. ALVER MAJORS. No. 16-P-694. Suffolk. May 10, 2017. – August 31, 2017. Present: Milkey, Sullivan, & Henry, JJ. Summary Process. Practice, Civil, Summary process, Jury trial, Waiver of trial by jury. Constitutional Law, Trial by jury, Waiver of constitutional rights. Summary Process. Complaint filed in the Boston Division of the Housing Court Department on September 2, 2015. The case was heard by MaryLou Muirhead, J. Carson Denny (Patricia Whiting also present) for the defendant. Tchad Cort, pro se. HENRY, J. The defendant tenant, Alver Majors (tenant), appeals from a Housing Court judgment, entered following a bench trial, that awarded to the plaintiff landlord, Tchad Cort (landlord), possession of an apartment in which the tenant resided. The trial judge also awarded damages to the landlord for nonpayment of rent, reduced by the amount of relief granted to the tenant on his counterclaims for breach of the covenant of quiet enjoyment and breach of G. L. c. 93A. The tenant argues that the judge erred by ruling that the tenant waived his right to a jury trial by failing to object to the commencement of a bench trial. We conclude that the tenant did not waive his right to a jury, and therefore vacate the judgment. Background. The tenant lived for four years in the basement unit of the landlord’s building at 96 Mount Pleasant Avenue in the Roxbury section of Boston, paying $ 600 per month in rent. In April of 2015, the tenant ceased paying his rent. In September, 2015, the landlord filed a claim for possession in the Housing Court due to the tenant’s nonpayment of rent. The tenant timely filed an answer and counterclaims alleging violations of the implied warranty of habitability and G. L. c. 93A, and breach of the covenant of quiet enjoyment. The tenant’s answer included a request for a jury trial in the caption and in the body of the answer. The tenant’s jury claim was separately docketed. The tenant and the landlord both appeared pro se on the date scheduled for trial. When the case was called, the judge asked the tenant if he was prepared to move forward with the trial and he responded affirmatively. The judge then asked the clerk to swear in the witnesses and called the […]
Valente v. TB Bank, N.A. (Lawyers Weekly No. 11-117-17)
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-1119 Appeals Court GERALD VALENTE, executor,[1] and trustee,[2] vs. TD BANK, N.A.[3] No. 16-P-1119. Worcester. March 3, 2017. – August 30, 2017. Present: Agnes, Kinder, & Shin, JJ. Bank. Negligence, Bank. Notice, Timeliness. Uniform Commercial Code, Bank, Notice, Payment on negotiable instrument. Negotiable Instruments, Payment. Civil action commenced in the Superior Court Department on October 25, 2011. The case was heard by Daniel M. Wrenn, J., on a motion for summary judgment. Barry A. Bachrach for the plaintiff. Catherine R. Connors for the defendant. AGNES, J. Before a bank customer may sue his bank for honoring a check drawn on his account that bears an “unauthorized signature or alteration,” Massachusetts law requires that the customer notify the bank of the matter within one year after a statement of the account showing the item that was paid is made available to him. G. L. c. 106, § 4-406(f), as appearing in St. 1998, c. 24, § 8.[4] In the present case, the plaintiff, Gerald Valente, in his capacity as the executor of the estate of Mauro Valente (decedent or Mauro) and as trustee of the Valente Family Trust, brought suit against the decedent’s widow, Donna Valente,[5] and her daughter, Lillianna Saari, alleging that they wrongfully misappropriated substantial sums of money from the decedent’s estate and a family trust that were on deposit in TD Bank, N.A. (bank). In the same action, in the only count in the complaint against the bank, the plaintiff alleged that the bank was negligent and thereby liable for damages because it was aware of the wrongful conduct by the decedent’s widow. For substantially the same reasons given by the Superior Court judge below, who allowed the bank’s motion for summary judgment in a thoughtful and comprehensive memorandum of decision, we hold that the one-year notice requirement set forth in G. L. c. 106, § 4-406(f), bars a customer’s lawsuit against his bank for honoring a check with a forgery of the customer’s signature despite an allegation that the bank had actual knowledge of the forgery.[6] Background. The essential facts material to the outcome in this case are not in dispute. The following account is drawn from the materials submitted by the plaintiff and the bank in connection with the bank’s motion for summary judgment. Mauro and Donna […]
Commonwealth v. Villagran (Lawyers Weekly No. 10-145-17)
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-12239 COMMONWEALTH vs. JONATHAN VILLAGRAN. Norfolk. March 7, 2017. – August 29, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.[1] Firearms. Controlled Substances. Disturbing the Peace. Constitutional Law, Search and seizure, Reasonable suspicion, Probable cause. Search and Seizure, Reasonable suspicion, Protective frisk, Probable cause. Probable Cause. Complaint received and sworn to in the Quincy Division of the District Court Department on March 26, 2015. A pretrial motion to suppress evidence was heard by Diane E. Moriarty, J., and the cases were tried before Robert P. Ziemian, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Mathew B. Zindroski for the defendant. Laura A. McLaughlin, Assistant District Attorney (David M. Ringius, Assistant District Attorney, also present), for the Commonwealth. HINES, J. After a jury trial in the Quincy District Court, the defendant, Jonathan Villagran, was convicted of carrying a firearm without a license, G. L. c. 269, § 10 (a); carrying a dangerous weapon on school grounds, G. L. c. 269, § 10 (j); possession of a firearm without a firearm identification card, G. L. c. 269, § 10 (h); disturbing a school, G. L. c. 272, § 40; and possession of a class D substance with intent to distribute, G. L. c. 94C, 32C.[2] The complaint issued after a police officer, responding to a report of an unauthorized person on the property of Milton High School (school), searched the defendant’s backpack and discovered a firearm, money, and marijuana. Prior to trial, the defendant filed a motion to suppress statements and physical evidence seized during the search of his backpack, arguing that the police officer lacked a constitutionally permissible basis for the patfrisk and the subsequent search. A judge of the District Court denied the motion. The defendant appealed, asserting that the denial of the motion to suppress violated his rights under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights.[3] He also challenges the sufficiency of evidence to support the conviction of disturbing a school. We transferred the case to this court on our own motion and take this opportunity to reaffirm the distinction between the traditional standard applicable to a police officer’s conduct implicating the Fourth Amendment and the less stringent standard applicable to a school official who does […]
Cesso v. Todd (Lawyers Weekly No. 11-110-17)
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-76 Appeals Court THOMAS CESSO vs. GARY OWEN TODD. No. 16-P-76. Essex. January 6, 2017. – August 28, 2017. Present: Vuono, Milkey, & Henry, JJ. Attorney at Law, Malpractice, Attorney-client relationship, Withdrawal, Signing of pleadings and other court papers. Practice, Civil, Summary judgment. Civil action commenced in the Superior Court Department on November 16, 2011. The case was heard by Timothy Q. Feeley, J., on a motion for summary judgment. Mary-Ellen Manning for the plaintiff. Nancy M. Reimer for the defendant. HENRY, J. The plaintiff, Thomas Cesso, appeals from the summary judgment in favor of the defendant, Gary Owen Todd, on Cesso’s claims of legal malpractice and misrepresentation. Because genuine issues of material fact exist on the summary judgment record, especially whether an attorney-client relationship continued to exist between Todd and Cesso after July 25, 2008, we vacate in part and affirm in part. Background. We summarize the undisputed facts drawn from the summary judgment record; to the extent the record includes disputed evidence, we consider that evidence in the light most favorable to Cesso, against whom summary judgment entered. See Ritter v. Massachusetts Cas. Ins. Co., 439 Mass. 214, 215 (2003). The parties do not agree on when the attorney-client relationship began or ended. For purposes of this opinion, we note their differences and, where material, resolve differences in the light most favorable to Cesso. Cesso contends that his attorney-client relationship with Todd, an attorney at the law firm Todd & Weld LLP (Todd & Weld), commenced on May 28, 2008, when Cesso spoke with Todd to discuss the possibility of Todd taking over representation of Cesso in a divorce action that was set for trial shortly thereafter. On June 6, 2008, Cesso met with Todd to continue the discussion in person. On June 30, 2008, Todd introduced Cesso to another Todd & Weld attorney, John Earl Quigley, who would assist Todd in the representation.[1] On July 3, 2008, Cesso’s prior attorney withdrew from the divorce action. On July 7, 2008, Cesso asked Todd and Quigley to send him a client agreement and to enter their appearances in the divorce action. This is when Todd contends the representation commenced. On July 9, 2008, both Todd and Quigley filed appearances for Cesso in the divorce action. […]
Commonwealth v. Perez (Lawyers Weekly No. 10-142-17)
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-12251 COMMONWEALTH vs. FERNANDO PEREZ. Hampden. April 3, 2017. – August 25, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, & Cypher, JJ.[1] Constitutional Law, Sentence. Due Process of Law, Sentence. Practice, Criminal, Sentence. Indictments found and returned in the Superior Court Department on February 16 and March 2, 2001. Following review by the Appeals Court, 62 Mass. App. Ct. 912 (2004) and 67 Mass. App. Ct. 1116 (2006), a motion for resentencing, filed on March 7, 2016, was considered by Daniel A. Ford, J., and a motion for reconsideration was considered by him. The Supreme Judicial Court granted an application for direct appellate review. Elizabeth Caddick for the defendant. Elizabeth Dunphy Farris, Assistant District Attorney (Katherine E. McMahon, Assistant District Attorney, also present) for the Commonwealth. Merritt Schnipper, for Committee for Public Counsel Services, amicus curiae, submitted a brief. HINES, J. In the early morning hours of December 23, 2000, the juvenile defendant, Fernando Perez, who was then seventeen years of age, embarked on a crime spree in downtown Springfield. Accompanied by his adult uncle and armed with a handgun, the defendant committed two robberies, all within a span of thirty minutes. While attempting a third robbery, he shot the intended victim, a plain-clothed Springfield police officer. In November, 2001, a Superior Court jury convicted the defendant of armed robbery, armed assault with intent to rob, assault and battery by means of a dangerous weapon, and related firearms offenses. The judge sentenced the defendant to multiple concurrent and consecutive terms, resulting in an aggregate sentence of thirty-two and one-half years,[2] with parole eligibility after twenty-seven and one-half years. In 2015, after our decision in Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass. 655 (2013) (Diatchenko I), S.C., 471 Mass. 12 (2015), the defendant filed a motion for resentencing under Mass. R. Crim. P. 30 (a), as appearing in 435 Mass. 1501 (2001), arguing that the aggregate sentence imposed violated the prohibition on cruel and unusual punishment under the Eighth Amendment to the United States Constitution, and the cognate provision of art. 26 of the Massachusetts Declaration of Rights, by requiring him to serve twelve and one-half years longer before parole eligibility than a juvenile defendant convicted of murder. He argued also […]
Brangan v. Commonwealth (Lawyers Weekly No. 10-143-17)
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-12232 JAHMAL BRANGAN vs. COMMONWEALTH. Suffolk. May 2, 2017. – August 25, 2017. Present: Gants, C.J., Hines, Gaziano, Lowy, Budd, & Cypher, JJ.[1] Bail. Indigent. Due Process of Law, Pretrial detainees. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on February 26, 2016. The case was heard by Lenk, J. Merritt Schnipper for the petitioner. Amal Bala, Assistant District Attorney, for the Commonwealth. Shira Diner & Ryan M. Schiff, for Committee for Public Counsel Services, amicus curiae, submitted a brief. HINES, J. The practice of releasing a defendant on bail prior to trial has been part of Massachusetts law since its beginnings as a colony. See Commonwealth v. Baker, 343 Mass. 162, 165 (1961). The Body of Liberties (1641), the oldest known compilation of Massachusetts Colonial law, provided that: “18. No mans person shall be restrained or imprisoned by any Authority whatsoever, before the law hath sentenced him thereto, If he can put in sufficient securitie, bayle or mainprise, for his appearance, and good behaviour in the meane time, unlesse it be in Crimes Capital, and Contempts in open Court, and in such cases where some expresse act of Court doth allow it.” See Baker, supra. This statement, although nearly four centuries old, summarizes well the dual functions of bail. On the one hand, release on bail preserves the liberty of the accused until he or she has been afforded the full measure of due process in a criminal trial. “This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction. . . . Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning” (citation omitted). Stack v. Boyle, 342 U.S. 1, 4 (1951).[2] On the other hand, the giving of security serves to assure that the defendant will appear in court when called to do so. “The right to release before trial is conditioned upon the accused’s giving adequate assurance that he will stand trial and submit to sentence if found guilty.” Id. Where, as in this case, the defendant is unable to give the necessary security for his appearance at […]
Van Liew v. Eliopoulos v. Hands on Technology Transfer, Inc., et al. (Lawyers Weekly No. 11-109-17)
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-567 Appeals Court ROLAND VAN LIEW vs. PHILIP ELIOPOULOS; Hands on Technology Transfer, Inc., third-party defendant. No. 16-P-567. Middlesex. January 5, 2017. – August 25, 2017. Present: Green, Meade, & Blake, JJ. Libel and Slander. Constitutional Law, Libel and slander. Damages, Libel, Emotional distress, Remittitur. State Ethics Commission. Conflict of Interest. Emotional Distress. Practice, Civil, Judicial discretion, Instructions to jury. Civil action commenced in the Superior Court Department on January 3, 2011. The case was tried before Kenneth V. Desmond, Jr., J., and a motion for a new trial or in the alternative for remittitur was heard by him. Brian C. Newberry for Roland Van Liew & another. David H. Rich for the defendant. BLAKE, J. In 2010, a bitter feud erupted between Chelmsford residents Roland Van Liew and Philip Eliopoulos. Van Liew commenced the dispute by accusing Eliopoulos, a local selectman, of shady political dealings in his work as a real estate attorney. After Eliopoulos responded publicly to the allegations, Van Liew filed in Superior Court this defamation action against him. Eliopoulos counterclaimed, alleging defamation on the part of Van Liew, and impleaded Van Liew’s company, Hands on Technology Transfer, Inc. (collectively, Van Liew). A jury subsequently found Van Liew liable for making twenty-nine defamatory statements, and awarded $ 2.9 million in damages. They found no wrongdoing on the part of Eliopoulos. The judge denied Van Liew’s posttrial motions on the counterclaim verdict,[1] and he now appeals,[2] challenging the proof of defamation on the twenty-nine statements. He also claims that the judge committed evidentiary errors and that the excessive damages awarded require remittitur. We affirm. Background. 1. Real estate development in Chelmsford. In the summer of 2008, Chelmsford real estate broker and developer Michael Eliopoulos, Philip’s[3] father, approached Eastern Bank about a historic home situated on a parcel of land it owned in Chelmsford center. Michael then negotiated the sale of an undeveloped portion of the property with Thomas Dunn, an employee of Eastern Bank. The purchase price was $ 480,000. Philip and his law firm reviewed draft agreements and served as real estate counsel. The sale closed on June 17, 2009, after which the 2.41-acre property became known as 9 North Street (the property).[4] During the real estate negotiations, until April of 2009, when […]
Categories: News Tags: 1110917, Eliopoulos, Hands, Inc., Lawyers, Liew, Technology, Transfer, Weekly