U.S. Bank National Association v. Bolling (Lawyers Weekly No. 11-116-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-1259 Appeals Court U.S. BANK NATIONAL ASSOCIATION, trustee,[1] vs. WENDY BOLLING. No. 15-P-1259. Hampden. June 9, 2016. – September 1, 2016. Present: Grainger, Meade, & Wolohojian, JJ. Contract, Choice of law clause. Mortgage, Assignment, Foreclosure. Real Property, Mortgage. Practice, Civil, Standing. Conflict of Laws. Summary process. Complaint filed in the Western Division of the Housing Court Department on April 17, 2012. The case was heard by Robert G. Fields, J., on motions for summary judgment; a motion to vacate judgment, filed on April 1, 2014, was heard by him; a motion for reconsideration, filed on May 22, 2014, was heard by him; and the entry of judgment was ordered by him. Robert Bruce Allensworth (Robert W. Sparkes, III, with him) for the plaintiff. Glenn F. Russell, Jr., for the defendant. Daniel Bahls & Uri Strauss, for Luz Diaz, amicus curiae, submitted a brief. WOLOHOJIAN, J. At issue is whether the defendant, Wendy Bolling, has standing to challenge the assignment of a mortgage that was not made in accordance with the terms of a pooling and servicing agreement (PSA) to which she was not a party. Because the defect rendered the assignment merely voidable rather than void, we conclude that she does not. Bolling moved for summary judgment in the summary process eviction action below, arguing (among other things)[2] that the foreclosure sale through which the plaintiff, U.S. Bank National Association, trustee for RASC 2006KS9 c/o GMAC Mortgage, LLC (trust), took title to a property at 114 Lamont Street, Springfield, was void because the assignment of the mortgage to the trust did not comply with the terms of a PSA between Residential Asset Securities Corporation, Residential Funding Company, LLC, and U.S. Bank National Association.[3] Specifically, Bolling alleged that the assignment did not take place within the time period required under the PSA. She further argued that this deficiency rendered the assignment void under New York law, which she contended governed because of the PSA’s choice-of-law provision.[4] The judge agreed, ruled that Bolling had standing to challenge the assignment because it was void under New York law (and not merely voidable), and allowed her motion for summary judgment. Judgment entered accordingly. The trust appeals. We begin with the proposition, of long standing, that Massachusetts applies its own law […]
Santos v. U.S. Bank National Association, et al. (Lawyers Weekly No. 11-081-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-334 Appeals Court MILTON R. SANTOS[1] vs. U.S. BANK NATIONAL ASSOCIATION, trustee,[2] & others.[3] No. 15-P-334. Suffolk. February 24, 2016. – July 8, 2016. Present: Katzmann, Milkey, & Blake, JJ. Bank. Loan. Mortgage, Real estate, Foreclosure. Real Property, Mortgage. Notice. Practice, Civil, Motion to dismiss, Summary judgment, Summary process. Summary Process. Civil action commenced in the Superior Court Department on March 28, 2011. The case was heard by Heidi E. Brieger, J., on a motion for summary judgment. Michael J. Traft (Robert Graves with him) for the plaintiff. Sean R. Higgins (Michael Stanley with him) for the defendants. KATZMANN, J. The plaintiff mortgagor Milton R. Santos appeals from orders of a Superior Court judge dismissing his claim that the mortgagee and mortgage servicing defendants violated G. L. c. 244, § 35A, and granting summary judgment to the defendants on his claim that U.S. Bank National Association (U.S. Bank) negligently processed his loan modification applications made pursuant to the Home Affordable Modification Program (HAMP). We affirm. Background. We recite the facts alleged in Santos’s complaint as supplemented by the undisputed facts in the summary judgment record and descriptions of HAMP from case law. HAMP.[4] “HAMP was part of Congress’s response to the financial and housing crisis that struck the country in the fall of 2008.” Spaulding v. Wells Fargo Bank, N.A., 714 F.3d 769, 772 (4th Cir. 2013). Acting under authority conferred by the Emergency Economic Stabilization Act of 2008 (EESA), 12 U.S.C. § 5201 et seq. (and specifically the Troubled Asset Relief Program [TARP], 12 U.S.C. §§ 5211–5241), and in conjunction with the Federal Housing Finance Agency, the Federal National Mortgage Association (Fannie Mae), and the Federal Home Loan Mortgage Corporation (Freddie Mac), the Secretary of the Treasury (Secretary) introduced the Making Home Affordable Program in February, 2009. HAMP, which is administered by Fannie Mae, is part of this initiative. Markle v. HSBC Mort. Corp. (USA), 844 F. Supp. 2d 172, 176 (D. Mass. 2011). “HAMP aims to provide relief to borrowers who have defaulted on their mortgage payments or who are likely to default by reducing mortgage payments to sustainable levels. . . . Under HAMP, loan servicers receive incentive payments for each permanent loan modification completed. . . . Mortgage lenders approved by Fannie Mae […]
Plymouth Public Schools v. Education Association of Plymouth & Carver, et al. (Lawyers Weekly No. 11-077-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-906 Appeals Court PLYMOUTH PUBLIC SCHOOLS vs. EDUCATION ASSOCIATION OF PLYMOUTH & CARVER & another.[1] No. 15-P-906. Plymouth. April 11, 2016. – June 30, 2016. Present: Cypher, Katzmann, & Massing, JJ. School and School Committee, Professional teacher status, Maternity leave, Arbitration, Termination of employment. Arbitration, Arbitrable question, School committee. Public Employment, Paid leave, Termination. Family & Medical Leave Act. Civil action commenced in the Superior Court Department on February 18, 2014. The case was heard by Frank M. Gaziano, J., on motions for summary judgment. Matthew D. Jones (Ashley F. Call with him) for the defendants. Michael J. Long for the plaintiff. MASSING, J. Defendant Kristen Bilbo taught in the plaintiff Plymouth Public Schools (district) over the course of five consecutive school years. She took maternity leave during two of them. The district tendered a notice of nonrenewal at the end of the fifth year. Bilbo asserts that her service, interrupted only by her leave permitted under the Family and Medical Leave Act, 29 U.S.C. §§ 2601 et seq. (FMLA), entitles her to professional teacher status,[2] giving her rights including arbitration of her dismissal.[3] The district contends that Bilbo is not entitled professional teacher status or arbitration because she did not serve three consecutive full years. We conclude that whether Bilbo has attained professional teacher status is for the arbitrator to decide. Background.[4] Bilbo worked full-time as a special education teacher at Plymouth North High School starting on March 10, 2008, through the end of the school year in June, 2013. She took maternity leave during her first and fourth full years as a teacher, for sixty days in 2009 and for fifty-six days in 2012. Bilbo’s leave was authorized under the FMLA. She was paid during both absences using accumulated sick time and a sick-leave bank available under the governing collective bargaining agreement. Toward the end of her fifth year of teaching, by letter dated May 31, 2013, the district provided Bilbo with notice that she would not be reappointed to a teaching position for the next school year.[5] The letter explained, “You are not being appointed to a teaching position based upon the recommendations of your supervising principal and program manager and the concerns about continuity of instruction and the education of our students.” Asserting that she possessed professional […]
Federal National Mortgage Association v. Rego, et al. (Lawyers Weekly No. 10-069-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11927 FEDERAL NATIONAL MORTGAGE ASSOCIATION vs. EDWARD M. REGO & another.[1] Essex. November 3, 2015. – May 24, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Summary Process, Appeal. Mortgage, Foreclosure. Real Property, Mortgage. Practice, Civil, Summary process, Counterclaim and cross-claim. Consumer Protection Act, Unfair act or practice. Housing Court, Jurisdiction. Jurisdiction, Housing Court. Summary Process. Complaint filed in the Northeast Division of the Housing Court Department on August 31, 2012. Motions for partial summary judgment were heard by Timothy F. Sullivan, J., and a motion to dismiss counterclaims was also heard by him. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Michael Weinhold for the defendants. Richard E. Briansky for the plaintiff. Thomas J. Santolucito & Danielle C. Gaudreau, for Real Estate Bar Association for Massachusetts, Inc., & another, amici curiae, submitted a brief. Daniel Bahls & Amanda Winalski, for Community Legal Aid, amicus curiae, submitted a brief. DUFFLY, J. The plaintiff, Federal National Mortgage Association (Fannie Mae), filed a complaint for summary process in the Housing Court to establish its right to possession of a house that had been owned by Edward M. Rego and Emanuela R. Rego (Regos) that Fannie Mae purchased at a foreclosure sale. In response, the Regos argued that the foreclosure sale conducted by the bank that held the mortgage on the property, GMAC Mortgage, LLC (GMAC), was void because GMAC’s attorneys had not been authorized by a prior writing to undertake the actions set forth in G. L. c. 244, § 14 (§ 14). The Regos also asserted an equitable defense and counterclaims pursuant to G. L. c. 93A. A Housing Court judge allowed Fannie Mae’s motion for summary judgment “as to possession only,” and scheduled a bench trial on the Regos’ counterclaims under G. L. c. 93A. Thereafter, Fannie Mae moved to dismiss the counterclaims for lack of subject matter jurisdiction; that motion was allowed. Final judgment for possession entered in favor of Fannie Mae, and the Regos appealed. We transferred the case to this court on our own motion. We are confronted with two issues in this appeal.[2] First, we consider the meaning of the language in § 14, authorizing “the attorney duly authorized by a writing under seal” to perform acts required by the statutory power of […]
Burbank Apartments Tenant Association, et al. v. Kargman, et al. (Lawyers Weekly No. 10-051-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11872 BURBANK APARTMENTS TENANT ASSOCIATION & others[1] vs. WILLIAM M. KARGMAN[2] & others.[3] Suffolk. December 8, 2015. – April 13, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Housing. Fair Housing Act. Anti-Discrimination Law, Housing. Civil action commenced in the Boston Division of the Housing Court Department on March 16, 2011. A motion to dismiss was heard by Jeffrey M. Winik, J. The Supreme Judicial Court granted an application for direct appellate review. Ann E. Jochnick (James M. McCreight with her) for the plaintiffs. Janet Steckel Lundberg for the defendants. The following submitted briefs for amici curiae: John Cann, of Minnesota, for Sargent Shriver National Center on Poverty Law & others. Harry J. Kelly & Joshua S. Barlow for Greater Boston Real Estate Board & others. Joseph D. Rich & Thomas Silverstein, of the District of Columbia, Oren M. Sellstrom, of California, & Laura Maslow-Armand for Lawyers’ Committee for Civil Rights Under Law & another. John J. McDermott, of Virginia, & Eleftherios Papadopoulos for National Apartment Association & another. Esme Caramello, Louis Fisher, Erika Johnson, Aditya Pai, & Katie Renzler for Fair Housing Center of Greater Boston & others. Roberta L. Rubin, Special Assistant Attorney General, for Department of Housing & Community Development. CORDY, J. This case arises out of a decision made by the defendants, the principals and owners of Burbank Apartments (Burbank), not to renew Burbank’s project-based Section 8 housing assistance payments contract (HAP) with the United States Department of Housing and Urban Development (HUD) when its forty-year mortgage subsidy contract expired on March 31, 2011. In lieu of those project-based subsidies, the defendants opted instead to accept from its tenants Section 8 enhanced vouchers, enabling tenants living in units subsidized on a project basis to remain as tenants under an alternative Federal housing program.[4] See 42 U.S.C. § 1437f (2012). The plaintiffs, comprised of current and potential Burbank tenants, complained that Burbank’s decision violated § 3604 of the Federal Fair Housing Act (FHA or Title VIII), 42 U.S.C. §§ 3601 et seq. (2012), and the Massachusetts antidiscrimination law, G. L. c. 151B, § 4, both by virtue of intentional discrimination as well as disparate impact on members of otherwise protected classes of citizens. In particular, the plaintiffs alleged that the defendants’ decision not to renew their HAP […]
Categories: News Tags: 1005116, Apartments, Association, Burbank, Kargman, Lawyers, Tenant, Weekly
Drummer Boy Homes Association, Inc. v. Britton, et al. (Lawyers Weekly No. 10-043-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11969 DRUMMER BOY HOMES ASSOCIATION, INC. vs. CAROLYN P. BRITTON & another.[1] Middlesex. January 7, 2016. – March 29, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Condominiums, Common expenses. Real Property, Condominium. Lien. Mortgage, Priority. Practice, Civil, Standing, Attorney’s fees. Civil actions commenced in the Concord Division of the District Court Department on August 8, 2007; February 6, 2008; and October 6, 2008. After consolidation, the case was heard by Peter J. Kilmartin, J., on a motion for summary judgment, and a motion to alter and amend the judgment was also heard by him. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Thomas O. Moriarty (Jennifer L. Barnett with him) for the plaintiff. Michael A.F. Johnson, of the District of Columbia (Rhiannon A. Campbell with him), for Federal Housing Finance Agency & others, amici curiae. Randy A. Britton, pro se. The following submitted briefs for amici curiae: Alan E. Lipkind & Elizabeth Brady Murillo for Avidia Bank & others. Henry A. Goodman, Ellen A. Shapiro, Charles A. Perkins, Jr., Scott J. Eriksen, & David R. Chenelle for Community Associations Institute. Clive D. Martin & Diane R. Rubin for Real Estate Bar Association for Massachusetts, Inc. Stephen C. Reilly & Jennifer E. Greaney for Bank of America, N.A. SPINA, J. At issue in this case is whether G. L. c. 183A, § 6, permits an organization of unit owners to establish multiple contemporaneous priority liens on a condominium unit by filing successive legal actions to collect unpaid monthly common expense assessments (common expenses).[2] We conclude that the statute allows for such liens. Accordingly, we reverse the judgment of the Appellate Division of the District Court,[3] which reached a contrary conclusion.[4] 1. Background. Over the last ten years, the parties in this case have been involved in protracted and contentious litigation concerning parking rights at a condominium complex. Our recitation of the factual background and procedural history encompasses only those matters that relate to the specific issues now before this court. Drummer Boy Condominium II, which consists of twelve individual units, is one of nine condominiums comprising Drummer Boy Green in Lexington. In the aggregate, the nine condominiums have approximately 150 units. The defendant, Carolyn […]
Kilnapp Enterprises, Inc. v. Massachusetts State Automobile Dealers Association, et al. (Lawyers Weekly No. 11-030-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-101 Appeals Court KILNAPP ENTERPRISES, INC.[1] vs. MASSACHUSETTS STATE AUTOMOBILE DEALERS ASSOCIATION & others.[2] No. 15-P-101. Suffolk. December 7, 2015. – March 17, 2016. Present: Rubin, Maldonado, & Massing, JJ. Libel and Slander. Actionable Tort. Practice, Civil, Motion to dismiss. Civil action commenced in the Superior Court Department on March 10, 2014. A motion to dismiss was heard by Judith Fabricant, J. Travis J. Jacobs for the plaintiff. Alan D. Rose, Sr., for Fisher & Phillips LLP & another. James F. Radke for Massachusetts State Automobile Dealers Association. RUBIN, J. This is an action for defamation brought by Kilnapp Enterprises, Inc., doing business as Real Clean (Real Clean), which describes itself as “a broker for automobile detailing and reconditioning between service providers and automobile dealerships.”[3] Real Clean brought this action against the Massachusetts State Automobile Dealers Association (MSADA) for its published statements concerning an investigation by the United States Department of Labor (DOL) into the practices of automobile detailing “brokers” including Real Clean. The complaint asserts not only a claim for defamation, but includes several other related counts that will be described more fully below. It names as a defendant not only MSADA but the author of the published statements, Attorney Joseph Ambash, and his law firm, Fisher & Phillips LLP. The defendants brought a motion to dismiss under Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), which was allowed. Real Clean appeals. Because the materials properly considered by the judge in the Superior Court demonstrate that Real Clean will be unable to prove that the defendants’ statements were materially false under the applicable standard, which requires demonstration that actionable statements have been made with knowledge of their falsity or in reckless disregard of their truth or falsity, we affirm the judgment dismissing all of Real Clean’s claims. Background. Our review of the allowance of a motion to dismiss is de novo. Glovsky v. Roche Bros. Supermkts., Inc., 469 Mass. 752, 754 (2014). For purposes of reviewing the allowance of a motion to dismiss we must, of course, take all the allegations in the plaintiff’s operative complaint, here the amended and verified complaint filed on May 7, 2014, as true. Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). […]
Categories: News Tags: 1103016, Association, Automobile, Dealers, Enterprises, Inc., Kilnapp, Lawyers, massachusetts, state, Weekly
Sewall-Marshal Condominium Association v. 131 Sewall Avenue Condominium Association (Lawyers Weekly No. 11-022-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-149 Appeals Court Sewall-Marshal Condominium Association vs. 131 Sewall Avenue Condominium Association. No. 15-P-149. Suffolk. December 11, 2015. – March 1, 2016. Present: Cypher, Wolohojian, & Carhart, JJ. Condominiums, Parking, Common area. Real Property, Condominium, Registered land. Contract, Validity. Civil action commenced in the Land Court Department on March 1, 2007. The case was heard by Harry M. Grossman, J. Adam P. Whitney for the defendant. Edward S. Englander for the plaintiff. WOLOHOJIAN, J. The parties are neighboring condominium associations in the Coolidge Corner area of Brookline, where parking is at a premium. In 1978, when both condominiums were controlled by the same developers, they entered into a written agreement concerning the shared use and allocation of parking spots on their respective properties. Summarized in broad strokes, they agreed that twenty percent of the spots would be reserved for residents of the plaintiff, the smaller of the two condominium associations (Sewall-Marshal), and eighty percent would be reserved for residents of the defendant, the larger one (131 Sewall), at no cost to either side. This arrangement continued for some twenty-eight years until 131 Sewall notified Sewall-Marshal that it would no longer abide by the agreement. This suit followed, seeking a declaration concerning the rights of the parties under the agreement. In essence, 131 Sewall contends that the agreement is unenforceable because it fails to comply with various provisions of G. L. c. 183A, the statute that enables the creation of condominiums, and because it is otherwise an unconscionable contract. After a bench trial, a judge of the Land Court sitting by designation in the Superior Court disagreed and entered a declaratory judgment in favor of Sewall-Marshal. We affirm. Background. The judge’s findings have not been shown to be clearly erroneous, and we summarize them here. The parties are condominium associations situated on abutting parcels of registered land in Brookline, near Coolidge Corner. Both associations were created in 1978, pursuant to the provisions of G. L. c. 183A, and their master deeds and by-laws were registered with the Norfolk registry district of the Land Court (registry district). With certain exceptions, the organizing documents of both entities mirror each other, which is not surprising given that both properties were developed by the same owners, Roger and Matthew Stern. Roger and Matthew, along with Jeffrey Stern, constituted the original […]
Categories: News Tags: 1102216, Association, Avenue, Condominium, Lawyers, Sewall, SewallMarshal, Weekly
Hickey v. Pathways Association, Inc., et al. (Lawyers Weekly No. 10-161-15)
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 SJC-11603 BRIAN S. HICKEY & others[1] vs. PATHWAYS ASSOCIATION, INC., & others.[2] Suffolk. October 7, 2014. – September 22, 2015. Present: Gants, C.J., Spina, Botsford, Duffly, Lenk, & Hines, JJ. Beach. Way, Private. Real Property, Registered land: Easement, Beach, Easement. Easement. Civil action commenced in the Land Court Department on April 15, 2009. The case was heard by Karyn F. Scheier, J., on a case stated. The Supreme Judicial Court granted an application for direct appellate review. Jennifer S.D. Roberts for Lorraine M. Paglia & another. Brian M. Hurley for Brian S. Hickey & another. Kevin T. Smith for Elizabeth J. Walker & others. David L. Delaney for Pamela A. Maher & others. Roland W. Young, pro se. Peter L. Freeman, for William J. Creonte & others, was present but did not argue. LENK, J. This case involves a dispute among landowners in the same subdivision over access rights over a private way to the beach. The plaintiffs own two beachfront lots in the town of Dennis (town), fronting on Shore Drive. Shore Drive runs along the waterfront parallel to Cape Cod Bay. The plaintiffs’ lots are separated by a twenty-foot way that extends south from Cape Cod Bay, along the length of the lots, to Shore Drive. The defendants[3] own lots located to the south and west of the plaintiffs’ lots, starting from the inland side of Shore Drive. All of the land involved is registered land; it had formed part of a 217.24 acre tract of land originally owned by Frank B. Tobey and registered in the Land Court in 1903. In 1917, Tobey conveyed the parcel to two sisters who thereafter subdivided the parcel repeatedly through 1977. Over that sixty-year period, they subdivided the parcel a small section of residential lots at a time. The way appears on the subdivision plans creating the plaintiffs’ lots, and on some of the plans creating the defendants’ lots. The defendants maintain that, according to provisions in their deeds and certificates of title, all of which reference easements over ways in subdivision plans, they hold rights of access over the way. The plaintiffs contend that they hold all ownership rights in the way, and the defendants have no right to use it for any purpose. The plaintiffs claim that, […]
City of Springfield v. Local Union No. 648, International Association of Firefighters, AFL-CIO (Lawyers Weekly No. 11-107-15)
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 13-P-1691 Appeals Court CITY OF SPRINGFIELD vs. LOCAL UNION NO. 648, INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, AFL-CIO. No. 13-P-1691. Hampden. September 11, 2014. – August 13, 2015. Present: Trainor, Rubin, & Sullivan, JJ. Fire Fighter, Appointment. Arbitration, Fire fighters, Authority of arbitrator, Damages. Labor, Fire fighters, Arbitration, Civil service, Damages. Civil Service, Fire fighters, Appointment. Contract, Collective bargaining contract. Damages, Back pay. Civil action commenced in the Superior Court Department on December 14, 2011. The case was heard by John S. Ferrara, J., on motions for judgment on the pleadings; a motion for reconsideration was heard by him; and entry of a final judgment was ordered by him. Albert R. Mason for the plaintiff. Joseph G. Donnellan for the defendant. RUBIN, J. The city of Springfield (city) appeals from a judgment of the Superior Court confirming a labor arbitration award issued in favor of a public employee union representing firefighters, Local 648, International Association of Firefighters, AFL-CIO (union). We affirm. Background. Because the arbitration award incorporated by reference certain legal conclusions of the Civil Service Commission (commission), we first summarize the commission proceedings, followed by the arbitration proceedings. Under the civil service law, G. L. c. 31, in order to fill a vacant position, the city may appoint either a “permanent” replacement, or, if the vacancy or the position is temporary, a “temporary” replacement. See G. L. c. 31, §§ 6-8. In either event, the appointment must be made through the detailed procedural steps set out in the civil service law. As the commission ultimately found, for an extended period of time the city’s appointments to vacant positions in the fire department did not comply with the above requirements. Rather, in 2009 and 2010, the city filled certain vacancies in its fire department not by promoting firefighters, but by making extended appointments of firefighters to higher-ranking civil service positions on an “acting” basis. These firefighters were paid additional out-of-grade compensation pursuant to the terms of art. 31 of the collective bargaining agreement (CBA) between the union and the city. Even with this additional out-of-grade amount, their compensation and other benefits fell short of that set forth in the CBA for the positions in which they were serving. The city’s justification for this discrepancy was that the firefighters were serving only on an “acting” basis. […]
Categories: News Tags: 1110715, AFLCIO, Association, City, Firefighters, International, Lawyers, Local, Springfield, Union, Weekly