Posts tagged "Associates"

Barton & Associates, Inc. v. Matarese, et al. (Lawyers Weekly No. 09-021-18)

1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT SUCV2004-0501-BLS1 BARTON & ASSOCIATES, INC. vs. JOSEPH MATARESE and MEDICUS HEALTHCARE SOLUTIONS, LLC (f/k/a Medicus Staffing, LLC) MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTION TO MODIFY JUDGMENT PURSUANT TO RULE 60(b)(5) On December 1, 2005, this court (van Gestel, J.) entered a Final Judgment concluding this case based upon a settlement agreement reached by the parties. The Final Judgment contained a number of elements, among them cash payments from the defendants, Joseph Matarese and Medicus Staffing LLC (Medicus),1 to the plaintiff, Barton & Associates, Inc. (Barton), and a permanent injunction precluding Medicus from hiring anyone previously employed by Barton. Medicus has filed the pending motion under M.R.Civ.P. 60(b)(5) requesting relief from the permanent injunction. For the reasons that follow, the motion is DENIED. 1 As noted in the caption Medicus has changed its name since the Final Judgment entered. The defendants will be referred to collectively as Medicus, unless it is necessary to distinguish between them. 2 BACKGROUND Barton and Medicus are both in the “locum tenens staffing” business. “Locum tenens” is a Latin term apparently originating in the Seventeenth Century generally meaning “a temporary substitute, especially for a doctor or member of the clergy.” It has more recently been used to refer to the business of temporarily placing physicians or other medical professionals with employers. See Wikipedia, locum tenens, last edited January 31, 2018. Barton was first established in 2001, and Matarese was among its first employees, serving as its Director of Operations. Barton maintains that Matarese was the author of its first business plan. In January, 2004, Matarese left Barton and formed Medicus, which began to compete with Barton and solicit its customers. In February, 2004, Barton sued Matarese asserting a number of claims all predicated on his having founded a competing business; in September, 2004, it added Medicus as a defendant. On September 22, 2005, just prior to trial, the parties reported to the court that the case had settled. That day the court ordered the parties to submit to the court a sealed letter that accurately described the parties’ settlement agreement. The order went on to explain that if the parties had not submitted an agreement for judgment within 45 days, it would open the letter and, if it believed it appropriate, enter a final judgment based upon the terms described in the letter. The parties submitted the letter, but were unable themselves to agree upon and execute the documents concluding the case. The court then opened the letter and entered a Final Judgment incorporating its terms. Medicus filed a notice of appeal from the entry of the judgment, but soon thereafter dismissed the appeal. The Final […]

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Posted by Massachusetts Legal Resources - March 8, 2018 at 11:32 pm

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Anesthesia Associates of Massachusetts, PC v. Plexus Anesthesia Services of Massachusetts, PC (Lawyers Weekly No. 09-016-18)

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1884CV00375-BLS2 ____________________ ANAESTHESIA ASSOCIATES OF MASSACHUSETTS, PC v. PLEXUS ANESTHESIA SERVICES OF MASSACHUSETTS, PC ____________________ MEMORANDUM AND ORDER DENYING PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION Anaesthesia Associates of Massachusetts, PC (“AAM”) claims that defendant Plexus Anesthesia Services of Massachusetts, PC (“PASM”) owes it at least $ 2.0 million for past anesthesia services. AAM asks the Court to enter a preliminary injunction that would PASM from transferring or encumbering any assets, or from making any payments of any funds except for paying wages to its employees, paying its attorneys, or paying rent, utilities, and taxes. AAM asserts that it will suffer irreparable harm without the requested injunction because PASM has been making and would continue to make preferential payments to entities other than AAM, thereby preventing from receiving money it is still owed for past services rendered. “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). To the contrary, “the significant remedy of a preliminary injunction should not be granted unless the plaintiffs had made a clear showing of entitlement thereto.” Student No. 9 v. Board of Educ., 440 Mass. 752, 762 (2004). “Trial judges have broad discretion to grant or deny injunctive relief.” Lightlab Imaging, Inc. v. Axsun Technologies, Inc., 469 Mass. 181, 194 (2014). The Court will DENY this motion for a preliminary injunction for two reasons: AAM has not met its burden of proving irreparable harm, and the broad relief it seeks is not permitted without a judgment under Massachusetts law.1 1 At the close of the oral argument, the Court stated that it was also persuaded that granting the preliminary injunction sought by AAM would be against the public interest because it would materially interfere with PASM’s ability to provide anesthesiology services to its hospital clients. However, the Massachusetts Appeals Court has held that it is reversible error for a trial court to consider harm to the public interest as a factor in granting or denying a preliminary injunction in a case like this – 2 – 1. Failure to Prove Irreparable Harm. As the moving party, AAM has the “burden of showing it would suffer an irreparable harm absent an injunction.” GTE Products Corp. v. Stewart, 414 Mass. 721, 726 (1993). AAM asserts that it will suffer irreparable harm without the proposed preliminary injunction because PASM has been making preferential payments to another entity. The sole evidence supporting that assertion is a statement made “upon information and belief” by AAM’s chief operating officer. But assertions in an affidavit or verified complaint made on “information and belief” that are not supported by any other evidence […]

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Posted by Massachusetts Legal Resources - February 28, 2018 at 10:20 pm

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Braintree Property Associates, LP v. Marzouki, et al. (Lawyers Weekly No. 09-038-17)

COMMONWEALTH OF MASSACHUSETTS NORFOLK, ss. SUPERIOR COURT CIVIL ACTION NO. 15-00144 BRAINTREE PROPERTY ASSOCIATES, LP vs. FRANCO MARZOUKI, DR. WU, LLC, D.B.A EMACK & BOLIOS AND ROBERT ROOK and FRANCO MARZOUKI, CROSS-CLAIM PLAINTIFF, vs. ROBERT ROOK, CROSS-CLAIM DEFENDANT MEMORANDUM OF DECISION AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT This action arises out of a lease agreement between the property owner, plaintiff, Braintree Property Associates, LP (“Braintree”), the lease holder, defendant Dr. Wu, LLC, d/b/a Emack & Bolios (“Wu”), for which Robert Rook is the sole owner and manager. Defendants Rook and Franco Marzouki guaranteed Wu’s obligations to Braintree. There is no dispute that Wu breached its lease by vacating the property it leased from Braintree before its lease was up. Plaintiff moves for summary judgment on its claims against Wu, Rook and Marzouki. All defendants oppose. Wu and Rook cross-move for summary judgment against Braintree, improbably claiming that Braintree is entitled to no lost rent at all under the terms of Braintree’s own Lease, which Braintree opposes. Marzouki moves for summary judgment on his cross-claim for indemnification from Rook, which Rook opposes. The issue at the core of this case is a straight-forward dispute about the measure of damages arising from Wu’s undisputed breach of its lease with Braintree. Based on the lease 2 and the undisputed facts, in consideration of the parties’ memoranda of law and oral arguments, and for the reasons that follow, plaintiff’s motion for summary judgment is ALLOWED. Wu’s cross-motion for summary judgment is DENIED. For other reasons, Marzuki’s motion for summary judgment on his cross-claim against Rook is DENIED. FACTS In reviewing a motion for summary judgment, the Court views the evidence in the light most favorable to the non-moving party and draws all reasonable inferences in his favor. Jupin v. Kask, 447 Mass. 141, 143 (2006), citing Coveney v. President & Trustees of the College of the Holy Cross, 388 Mass. 16, 17 (1983). Braintree operates the South Shore Plaza, a shopping mall in Braintree. Rook is the sole owner and manager of Wu, which does business as Emack & Bolios, an ice cream seller. On or about July 25, 2011, Wu, as tenant, entered into a lease (“Lease”) with Braintree for commercial space at the South Shore Plaza. The lease had a five-year term and required Wu to pay rent and fees. The lease term was to commence May 1, 2011 and end May 1, 2016. On or about July 25, 2011, defendants Marzouki and Rook each executed a joint and several guaranty of Wu’s lease obligations. Beginning in June, 2014, Wu stopped paying rent, and did not pay any rent thereafter. Neither Rook nor Marzouki made good on the rent Wu failed […]

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Posted by Massachusetts Legal Resources - November 14, 2017 at 1:04 am

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Spinazola v. Mass. Environmental Associates, Inc., et al. (Lawyers Weekly No. 12-078-17)

1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION NO. 0684CV00949BLS1 ROSEMARY SPINAZOLA, as Executrix of the Estate of Clarence Spinazola and as Co-Trustee of the Clarence Spinazola 1994 Revocable Trust vs. MASS. ENVIRONMENTAL ASSOCIATES, INC. and PATRICK J. HANNON MEMORANDUM OF DECISION AND ORDER ON MOTION TO SUBSTITUTE ASSIGNEE, KING ROOT CAPITAL, LLC, AS PLAINTIFF AND REQUEST FOR EXECUTION This case was filed on March 6, 2006. On March 8, 2007, a Final Judgment by Default Upon Assessment of Damages by the Court entered in favor of the plaintiff, Rosemary Spinazola, as Executrix of the Estate of Clarence Spinazola and as Co-Trustee of the Clarence Spinazola 1994 Revocable Trust (the Judgment)1, in the amount of $ 982,316, with interest from the date of filing. On August 20, 2007, the defendants filed a “Motion to Vacate Judgment by Default for Failure to Produce Discovery and for Failure to Comply with Court Orders.” On September 18, 2007, that motion was denied. Then, nearly ten years later, the motion now before the court was filed. It is styled: “Motion to Substitute Assignee, King Root Capital, LLC, as Plaintiff and Request for Execution” (the Motion). In that motion, King Root Capital, LLC (King Root) alleges that: (1) Spinazola assigned her interest in the Judgment to ABCD Holdings, LLC (ABCD Holdings or, simply, ABCD); (2) ABCD, thereafter, assigned its interest to King Root; (3) after accounting for payments by the defendants and the further accrual of post- 1 It is not clear to the court whether the judgment is in favor of Rosemary Spinazola, individually, or the Estate or a Trust. The court will simply use the term “plaintiff.” 2 judgment interest, as of October 18, 2016 the Judgment balance is $ 2,055,540.59, with interest accruing from that date; and (4) the court should “substitute it as the plaintiff in this case and issue an execution in its name [in that amount].” The defendants appeared by counsel and opposed the motion. The principal grounds for their opposition was that the sole member of ABCD is attorney George A. McLaughlin, III, whose brother is the sole member of King Root. McLaughlin represented defendant Hannon for a number of years, and, in particular, in connection with the negotiation and execution of a Settlement Agreement between the plaintiff and Hannon pursuant to which the Judgment would be satisfied in full by payment to plaintiff of $ 400,000 according to a payment schedule (the Agreement).2 The defendants also alleged that McLaughlin diverted funds available to pay the balance of the $ 400,000 due under the Settlement Agreement to other entities.3 Based on these allegations, the defendants assert that the assignments “are void against public policy, fatally infected […]

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Posted by Massachusetts Legal Resources - June 30, 2017 at 10:33 pm

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Rauhaus Freedenfeld & Associates LLP v. Prince (Lawyers Weekly No. 12-075-17)

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1684CV02016-BLS2 ____________________ RAUHAUS FREEDENFELD & ASSOCIATES LLP v. TODD PRINCE ____________________ MEMORANDUM AND ORDER ON PLAINTIFFS’ MOTION TO DISMISS COUNTERCLAIMS Rauhaus Freedenfeld & Associates LLP is an architectural firm based in Boston, Massachusetts, that specializes in designing animal hospitals. It is suing Todd Prince for not paying Plaintiff in full for designing renovations for an animal hospital owned by Prince in Deerfield, Illinois. Prince asserts various counterclaims. Plaintiff has moved to dismiss four of the five the counterclaims; it does not seek dismissal of the counterclaim for breach of contract (Count I). The Court will allow the motion in part and deny it in part. Specifically, it will dismiss the claim for negligent misrepresentation but otherwise deny the motion to dismiss. 1. Fraud Claim. Plaintiff argues that the counterclaim for fraud (Count II) is not pleaded with the particularity required by Mass. R. Civ. P. 9(b). Under this rule, a claimant must “at a minimum” support their claim for fraud by specifically alleging “the identity of the person(s) making the” allegedly fraudulent “representation, the contents of the misrepresentation, and where and when it took place,” and must also “specify the materiality of the misrepresentation, [his] reliance thereon, and resulting harm.” Equipment & Systems for Industry, Inc. v. NorthMeadows Constr. Co., Inc., 59 Mass. App. Ct. 931, 931-932 (2003) (rescript). Prince has stated his fraud claim with sufficient particularity. The allegations in the counterclaim plausibly suggest that Plaintiff’s agent made specific and false statements of fact to Prince at a meeting in September 2015, Plaintiff made specific and false promises in the parties’ contract that Plaintiff never intended to perform, Plaintiff made these false statements and promises to induce Prince to sign the contract, Prince did so to his detriment, and as a result Prince was damaged in that he paid $ 126,098.56 for draft drawings that he cannot use. These allegations state a claim for fraud. See Masingill v. EMC Corp., 449 Mass. 532, 540 (2007) (elements of – 2 – fraud); McCarthy v. Brockton Natl. Bank, 314 Mass. 318, 325 (1943) (“A principal is liable for the fraud committed by his agent or servant acting within the scope of his employment.”); Cumis Ins. Society v. BJ’s Wholesale Club, Inc., 455 Mass. 458, 474 (2009) (fraud claim may be based on false promise if “the promisor had no intention to perform the promise at the time it was made”) (quoting Yerid v. Mason, 341 Mass. 527, 530 (1960)). The Court reminds the parties, however, that an “intention not to perform a promise” cannot be inferred merely from later “nonperformance of the promise.” Galotti v. United States Trust Co., 335 Mass. 496, 501 (1957); […]

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Posted by Massachusetts Legal Resources - June 15, 2017 at 9:12 pm

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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 […]

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Posted by Massachusetts Legal Resources - March 16, 2017 at 3:36 pm

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Columbia Plaza Associates, et al. v. Northeastern University (Lawyers Weekly No. 12-175-16)

1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT SUCV2013-2392-BLS 2 COLUMBIA PLAZA ASSOCIATES, et al. Plaintiffs vs. NORTHEASTERN UNIVERSITY Defendant FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT This case arises from a series of agreements between the defendant Northeastern University (Northeastern) and the plaintiff Columbia Plaza Associates (CPA), a minority owned general partnership. The agreements related to the development of land known as Parcel 18 adjacent to Northeastern’s main campus. Northeastern owned the parcel, and plaintiffs held certain development rights. Plaintiffs allege that that Northeastern reaped unbargained for benefits in developing the parcel without adequately compensating them, and also convinced the Boston Redevelopment Authority (BRA) to approve plans needed to allow that development by misrepresenting to the BRA that it had the plaintiffs’ participation. This matter came before the Court in October 2016 for jury-waived trial on the sole remaining count of the Verified Complaint, Count VII, alleging a violation of Chapter 93A. This Court concludes that judgment should enter for the defendant. 2 FINDINGS OF FACT1 Parcel 18 is located in the Roxbury neighborhood of Boston next to Northeastern’s main campus. It consists of five sub parcels: 18-1A, 18-1B, 18-2, 18-3A and 18-3B. The BRA designated Parcel 18 as a Planned Development Area (PDA), specifically PDA 34. A PDA is a zoning overlay district and is one of the tools used by the BRA to impose certain controls on commercial development. Those tools include Cooperation Agreements, Sales and Construction Agreements, Master Plans and Development Plans. In June 1989, the BRA adopted a Master Plan and a Development Plan for Parcel 18. The Master Plan provided for the development of multiple buildings on four of the sub parcels, 18-1A, 18-1B, 18-3A, and 18-3B (collectively the “Development Parcels”). The remaining sub parcel, 18-2, was to be the site of a parking garage (the “Garage Parcel”). At the time, Parcel 18 was owned by various government entities, although Northeastern would ultimately become the owner of all of Parcel 18. CPA was formed for the purpose of participating in Boston’s “linkage plan,” a program created to promote development in areas of Boston in need of revitalization by linking together a commercial developer with a minority partner. CPA held certain development rights on Parcel 18. The commercial developer with whom CPA was paired was Metropolitan Structures, an Illinois-based general partnership. From its inception until December 2008, CPA had two general partners: plaintiff Ruggles-Bedford Associates Limited Partnership, (Ruggles-Bedford LP) comprised primarily of 1 In ruling on a motion for summary judgment in this case, another Superior Court judge outlined in the “Background” section of his decision certain facts contained in the summary judgment record, with all inferences drawn in favor of the […]

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Posted by Massachusetts Legal Resources - December 31, 2016 at 5:14 am

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Russell Block Associates v. Board of Assessors of Worcester (Lawyers Weekly No. 11-145-15)

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-283                                        Appeals Court   RUSSELL BLOCK ASSOCIATES  vs.  BOARD OF ASSESSORS OF WORCESTER. No. 14-P-283. Suffolk.     November 10, 2014. – September 16, 2015.   Present:  Rubin, Brown, & Maldonado, JJ. Taxation, Real estate tax:  abatement, classification of property.  Real Property, Tax.     Appeal from a decision of the Appellate Tax Board.     John F. O’Day, Jr., Assistant City Solicitor, for board of assessors of Worcester. Daniel I. Cotton for the taxpayer.     BROWN, J.  The board of assessors of Worcester (assessors) challenges a decision of the Appellate Tax Board (board) granting the taxpayer an abatement of the fiscal year (FY) 2012 tax on its parking garage.  The issue for consideration is whether the board erred by finding and ruling that the subject property was a multiple-use property appropriately classified as part residential and part commercial.[1]  See G. L. c. 59, § 2A(b).  We conclude that the board’s classification determination was a reasonable interpretation of the statutory language.  Accordingly, we affirm the decision of the board. 1.  Facts.  We summarize the board’s findings.[2]  In 1992, the taxpayer, Russell Block Associates, constructed a twenty-four story residential building (Tower) in the city of Worcester.  The Tower development project was conditioned on the construction of a parking garage.[3]  The five-story garage in issue contains 300 parking spaces and is located across a small side street from the Tower.  There are no dwelling units in the garage.  By contract entitled “Agreement to Provide Parking Spaces,” the taxpayer agreed to reserve a minimum of one hundred spaces and up to a maximum of 250 spaces for exclusive use by the tenants of the Tower. For the next nineteen years, the assessors classified the garage as a mixed-use property, taxing a large percentage of its value at the lower residential rate.[4]  In classifying the property in this manner, the assessors followed the guidelines issued by the Commissioner of Revenue (commissioner).[5]  See G. L. c. 58, § 3; McNeill v. Assessors of W. Springfield, 396 Mass. 603, 606 (1986).  Beginning in FY 2012, however, the assessors classified the property as entirely commercial. 2.  Standard of review.  Our task is to embrace an interpretation “consistent with the purpose of the statute and in harmony with the statute as a whole.”  Adams v. Assessors of Westport, 76 Mass. App. Ct. 180, 183-184 (2010), quoting from Sudbury v. Scott, 439 Mass. […]

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Posted by Massachusetts Legal Resources - September 16, 2015 at 8:20 pm

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Navy Yard Four Associates, LLC v. Department of Environmental Protection, et al. (Lawyers Weekly No. 11-130-15)

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-607                                        Appeals Court   NAVY YARD FOUR ASSOCIATES, LLC  vs.  DEPARTMENT OF ENVIRONMENTAL PROTECTION & another.[1] No. 14-P-607. Suffolk.     April 2, 2015. – September 4, 2015.   Present:  Kafker, C.J., Kantrowitz, & Hanlon, JJ.   Harbors.  Real Property, Harbors, Restrictions, Littoral property, License.  Trust, Public trust.  License.  Department of Environmental Protection.  Administrative Law, Agency’s authority, Regulations, Agency’s interpretation of statute, Agency’s interpretation of regulation.  Regulation.  Statute, Construction.  Words, “Tidelands.”     Civil action commenced in the Superior Court Department on December 20, 2011.   The case was heard by Peter M. Lauriat, J., on motions for judgment on the pleadings and for partial summary judgment.     Donald R. Pinto, Jr., for the plaintiff. Seth Schofield, Assistant Attorney General, for Department of Environmental Protection. John A. Pike, for Conservation Law Foundation, amicus curiae, submitted a brief.   KAFKER, C.J.  This appeal arises from a dispute over public accommodation requirements imposed within a waterways license issued by the Department of Environmental Protection (DEP) pursuant to G. L. c. 91 for property currently owned by the plaintiff, Navy Yard Four Associates, LLC (NYF).  The property is an approximately 2.6-acre parcel of land in Charlestown abutting Boston Harbor.  It is the site of a 224-unit apartment building development known as Harborview.  DEP concluded in 2004 that the project was a nonwater-dependent use sited on filled “Commonwealth [t]idelands” and therefore special conditions were included as part of its waterways license to ensure that the project served a “proper public purpose.”  One of these special conditions was that seventy-five percent of the ground floor of the building be reserved for facilities of public accommodation.  In 2009, NYF sought to amend its license, particularly the public accommodation requirements, contending that (1) G. L. c. 91 limits “Commonwealth tidelands” to submerged lands and excludes the tidal flats on which this project is sited, and (2) “Commonwealth tidelands” do not include property owned by the Boston Redevelopment Authority, which owned the property at the time of permitting, or other such political subdivisions or quasi public agencies of the Commonwealth.  DEP declined to grant the amendment, and NYF appealed DEP’s decision to the Superior Court in accordance with G. L. c. 30A, § 14, naming both DEP and the Commonwealth as defendants.  The Superior Court affirmed DEP’s denial of NYF’s requested c. 91 license amendment and rejected NYF’s request for a declaratory […]

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Posted by Massachusetts Legal Resources - September 4, 2015 at 2:56 pm

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Wessell v. Mink Brook Associates, Inc., et al. (Lawyers Weekly No. 11-089-15)

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-1120                                       Appeals Court   MARY ELLEN WESSELL  vs.  MINK BROOK ASSOCIATES, INC., & another.[1] No. 14-P-1120. Worcester.     April 7, 2015. – August 5, 2015.   Present:  Kantrowitz, Kafker, & Hanlon, JJ.   Massachusetts Wage Act.  Attorney at Law, Disqualification, Attorney-client relationship, Conflict of interest.  Employment, Retaliation, Termination.  Damages, Wrongful discharge of employee, Back pay.  Practice, Civil, Instructions to jury, Damages.       Civil action commenced in the Superior Court Department on June 19, 2012.   A motion to disqualify the plaintiff’s attorney was heard by David Ricciardone, J., and the case was tried before him.     Gregg S. Haladyna for the defendants. Steven D. Weatherhead (John F. Welsh with him) for the plaintiff.     KANTROWITZ, J.  This case involves a dispute between an employee and her former employer regarding unpaid wages.  The plaintiff, Mary Ellen Wessell, successfully sued Mink Brook Associates, Inc. (Mink Brook), and owner Robert C. Stone under the Wage Act for lost wages and retaliatory discharge after Stone refused to issue her a paycheck, she complained, and she was fired. In this appeal, the defendants argue that the trial judge improperly denied their pretrial motion to disqualify opposing counsel because Wessell’s attorney, who was her long-time personal friend, had previously provided informal legal advice to her on certain topics in Wessell’s capacity as an employee of Mink Brook.  The defendants also contend that the judge improperly instructed the jury on compensatory damages on the retaliation claim.  We affirm. Background.[2]  Mink Brook was incorporated in 1993 as a franchisee of Paul Davis Restoration, a national company that performed restoration work on houses to mitigate damage from flooding, fire, mold, or other problems.  Stone was Mink Brook’s owner and president.  In 2007, Stone contacted Wessell to discuss hiring her to work on the company’s financial matters and record-keeping.  She joined Mink Brook in its Worcester office as a subcontractor at an hourly rate, and in 2008 she became the company’s “business manager” at an annual salary of $ 50,000.  Wessell’s duties included managing accounts, human resources, payroll, bookkeeping, insurance policies, vehicle registration, and licenses.  She would occasionally work from home on a laptop computer that Stone purchased.  Wessell also performed unpaid work duties during her vacations or at times outside of her business hours.  Employees received paychecks every two weeks.  Wessell testified that she worked about fifty […]

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Posted by Massachusetts Legal Resources - August 5, 2015 at 3:48 pm

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