South Boston Elderly Residences, Inc. v. Moynahan (Lawyers Weekly No. 11-054-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-209 Appeals Court SOUTH BOSTON ELDERLY RESIDENCES, INC. vs. GERALD MOYNAHAN. No. 16-P-209. Suffolk. December 1, 2016. – May 9, 2017. Present: Milkey, Massing, & Sacks, JJ. Housing. Summary Process. Landlord and Tenant, Eviction, Rent, Repairs, Habitability, Reprisal against tenant, Consumer protection, Quiet enjoyment. Practice, Civil, Summary process, Abatement, Damages. Damages, Breach of implied warranty of habitability. Summary Process. Complaint filed in the Boston Division of the Housing Court Department on February 4, 2013. The case was heard by Jeffrey M. Winik, J. Joseph Ross (Ellen Rappaport-Tanowitz also present) for the tenant. W. Paul Needham for the landlord. MILKEY, J. The defendant, Gerald Moynahan, rents a small apartment from the plaintiff, South Boston Elderly Residences, Inc. (landlord). In this summary process action, Moynahan retained possession, which is no longer at issue. The remaining disputes concern his counterclaims. A Housing Court judge found that the landlord committed a breach of the warranty of habitability with respect to two different problems with the apartment. One was a recurring moisture problem that became so bad at one point that mushrooms were growing in the carpeting. The other was the lack of ventilation due to inaccessible windows. However, for various reasons that the judge explained in a detailed memorandum of decision, Moynahan received only minor rent abatement damages, and his claim brought pursuant to G. L. c. 93A was dismissed. The judge also concluded that the landlord had presented clear and convincing evidence to overcome the statutory presumption that its efforts to evict Moynahan were in retaliation for his reporting the sanitary code violations at the apartment. We affirm in part, reverse in part, and remand for additional proceedings. Background. In November, 2007, Moynahan moved into unit 13 of an elderly housing complex that the landlord owns in the South Boston neighborhood of Boston. The building had just been renovated, and Moynahan was the first tenant to move into unit 13 after the renovation. This ground-floor apartment totals approximately 453 square feet in size. Because of the sloping topography of the site, part of the unit is subterranean. Unit 13 has long suffered from moisture and related mold problems. The specific progression of these problems is important to resolving this case, and we therefore turn to reviewing that history in […]
Gannon v. City of Boston (Lawyers Weekly No. 10-059-17)
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-12136 SEAN GANNON vs. CITY OF BOSTON. Suffolk. December 8, 2016. – April 18, 2017. Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ.[1] Anti-Discrimination Law, Handicap, Employment, Burden of proof. Employment, Discrimination. Handicapped Persons. Municipal Corporations, Police. Public Employment, Police. Practice, Civil, Summary judgment, Burden of proof. Civil action commenced in the Superior Court Department on September 27, 2012. The case was heard by Douglas H. Wilkins, J., on a motion for summary judgment, and a motion for reconsideration was considered by him. Harold L. Lichten (Adelaide H. Pagano also present) for the plaintiff. Nicole I. Taub, Senior Special Assistant Corporation Counsel, for the defendant. Simone R. Liebman & Constance M. McGrane, for the Massachusetts Commission Against Discrimination, amicus curiae, submitted a brief. Robert S. Mantell, for Massachusetts Employment Lawyers Association, amicus curiae, submitted a brief. GANTS, C.J. The issue presented on appeal is whether a city is entitled to summary judgment on a handicap discrimination claim under G. L. c. 151B, § 4 (16), where the police department limits an officer to desk duty based on an informed, good faith belief that the officer can no longer safely patrol the streets because of his perceived handicap. We conclude that summary judgment is not appropriate where there are facts in dispute as to whether the officer is a qualified handicapped person capable of performing the full duties of a patrol officer without posing an unacceptably significant risk of serious injury to himself or others. The city at trial may present the evidence that caused the department to believe that the officer cannot safely assume the full duties of a police officer, but that determination rests with the fact finder based on the preponderance of the evidence, not with the department based on its informed, good faith belief. Therefore, we vacate the motion judge’s entry of summary judgment in favor of the city of Boston (city) and remand the case for a trial.[2] Background. The plaintiff, Sean Gannon (Gannon or plaintiff), began working for the Boston police department (department) in 1996. For the first decade of his employment, Gannon was a patrol officer performing the full range of patrol officer duties. Gannon is an avid practitioner of mixed martial arts (MMA) who has trained since his teenage […]
Saturn Funding, LLC v. NRO Boston, LLC, et al. (Lawyers Weekly No. 12-017-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION NO.: 16-2523B SATURN FUNDING, LLC vs. NRO BOSTON, LLC, NORTH RIVER OUTFITTERS, NRO SPORT, LLC, NRO EDGARTOWN LLC, and ALICE INDELICATO and JASON INDELICATO MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ NRO BOSTON, LLC AND NORTH RIVER OUTFITTERS, NRO SPORT, LLC, NRO EDGARTOWN LLC, JASON INDELICATO AND ALICE INDELICATO’S MOTION TO REMOVE DEFAULT AND FILE ANSWER AND AFFIRMATION DEFENSES LATE The defendants move under Mass. R. Civ. P. 55(c) and 60(b) to vacate a Default Judgment by Confession against NRO Boston, LLC, North River Outfitters, NRO Sport, LLC, NRO Edgartown LLC, Alice Indelicato, and Jason Indelicato that was obtained by Saturn Funding, LLC. Plaintiff opposes this motion on the grounds that the defendants have not shown good cause under Mass.R.Civ.P. 55(c) to set aside the entry of Mass.R.Civ.P. 55(a) default. Pursuant to the plaintiff’s request under Mass. R. Civ. P. 55(b)(1), defendants were all defaulted. [1] Judgment by Default entered on January 3, 2017. For the reasons stated herein, the defendants’ motion is ALLOWED. ANALYSIS Mass.R.Civ.P. 60(b) states in part: On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b) , (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void… or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order or proceeding was entered or taken… This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court… Whether or not to grant relief under Mass.R.Civ.P. 60(b) “rests within the sound discretion of the judge” and is “to be applied ‘toward the objective that legal procedure becomes the vehicle for determination of the issues upon their merits instead of upon refinement of procedure…’” Berube v. McKesson Wine & Spirits Co., 7 Mass. App. Ct. 426, 429 (1979) (quoting Florida Investment Enterprises, Inc. v. Kentucky Co., 160 So. 2d 733, 736 (Fla. Dist. Ct. App. 1964)). “Rule 60(b) is remedial in character and subject to a liberal interpretation and application in […]
Verizon New England Inc. v. Board of Assessors of Boston (and a consolidated case) (Lawyers Weekly No. 10-173-16)
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-12034 VERIZON NEW ENGLAND INC. vs. BOARD OF ASSESSORS OF BOSTON (and a consolidated case[1]). Suffolk. April 7, 2016. – November 2, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, & Hines, JJ.[2] Telephone Company. Taxation, Assessors, Personal property tax: value. Constitutional Law, Taxation. Appeal from a decision of the Appellate Tax Board. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. William Hazel for the taxpayers. Anthony M. Ambriano for board of assessors of Boston. Maura Healey, Attorney General, & Daniel J. Hammond, Assistant Attorney General, for Attorney General & another, amici curiae, submitted a brief. Kenneth W. Gurge, for Massachusetts Municipal Association & others, amici curiae, submitted a brief. BOTSFORD, J. Two telephone companies appeal from a decision of the Appellate Tax Board (board) upholding the property tax assessments by the board of assessors of Boston (assessors) for fiscal year (FY) 2012 on certain personal property each company owns. At issue is whether the tax assessments, which were based on a “split” tax rate structure determined in accordance with G. L. c. 40, § 56 (§ 56), constituted a disproportionate tax that, as such, violated the Constitution of the Commonwealth. More particularly, the question is whether the split tax rate structure authorized by § 56 — a rate structure that provides for taxable personal property to be taxed at a rate identical to the rate applied to commercial and industrial real property but higher than the rate that would apply if all taxable property, real and personal, were taxed at a single, uniform rate — violates the proportionality requirement of Part II, c. 1, § 1, art. 4, of the Constitution of the Commonwealth, as amended by art. 112 of the Amendments to the Constitution, as well as art. 10 of the Massachusetts Declaration of Rights. We conclude that the split tax structure authorized by § 56 and related statutes does not violate the Massachusetts Constitution. We affirm the board’s decision.[3] Background.[4] a. Procedural background. Verizon New England Inc. (Verizon) and RCN BecoCom LLC (RCN) (collectively, taxpayers) are subject to property tax in the city of Boston on personal property consisting primarily of machinery, poles, underground conduits, wires, and pipes (§ 39 property) that they own and use for business purposes. Pursuant […]
Kalu v. Boston Retirement Board, et al.
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-1148 Appeals Court OBIDIYA KALU vs. BOSTON RETIREMENT BOARD & another.[1] No. 15-P-1148. Norfolk. May 4, 2016. – October 14, 2016. Present: Katzmann, Carhart, & Sullivan, JJ.[2] Contributory Retirement Appeal Board. Public Employment, Accidental disability retirement, Retirement. Retirement. Practice, Civil, Appeal. Administrative Law, Decision, Judicial review, Official notice, Substantial evidence. Civil action commenced in the Superior Court Department on July 21, 2014. The case was heard by Peter B. Krupp, J., on motions for judgment on the pleadings. Charles E. Berg for the plaintiff. Elizabeth Kaplan, Assistant Attorney General, for Contributory Retirement Appeal Board. Edward H. McKenna for Boston Retirement Board. SULLIVAN, J. The plaintiff, Obidiya Kalu, appeals from a Superior Court judgment affirming a decision of the Contributory Retirement Appeal Board (CRAB). CRAB had determined that while Kalu’s appeal from the denial of accidental disability retirement benefits by the Boston Retirement Board (BRB) was timely, she was not entitled to those benefits.[3] We conclude that the appeal was timely, but we vacate the judgment affirming the denial of benefits and remand the case for further proceedings. Timeliness of appeal from retirement board decision. The first issue presented is whether the fifteen-day appeal period from an adverse decision of a retirement board set forth in G. L. c. 32, § 16(4), begins to run when a represented applicant receives proper notice of the retirement board’s decision, or when an applicant’s legal counsel receives such notice. We defer to CRAB’s reasonable interpretation of its enabling statute and conclude that the appeal period begins to run when notice is received by the applicant’s counsel. After a hearing, an administrative magistrate of the Division of Administrative Law Appeals (DALA) made factual findings on the issue of when notice was received, and by whom, all of which were adopted by CRAB. “We accept the facts found by CRAB when there is substantial evidence to support them, and also accept the reasonable inferences CRAB draws from the facts.” Rockett v. State Bd. of Retirement, 77 Mass. App. Ct. 434, 438 (2010) (citation omitted). We summarize the pertinent findings, all of which were supported by substantial evidence. Attorney James Ellis filed the claim for accidental disability retirement benefits on Kalu’s behalf on December 30, 2006. In October, 2008, the BRB held a hearing on Kalu’s […]
Categories: News Tags: Board, boston, Kalu, Retirement
Albright v. Boston Scientific Corporation (Lawyers Weekly No. 11-123-16)
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-633 Appeals Court DIANE ALBRIGHT vs. BOSTON SCIENTIFIC CORPORATION.[1] No. 15-P-633. Middlesex. April 15, 2016. – September 13, 2016. Present: Cypher, Katzmann, & Massing, JJ. Conflict of Laws. Negligence, Defective product, Design, Adequacy of warning, Duty to warn. Evidence, Relevancy and materiality, Rebuttal, Bias. Error, Harmless. Practice, Civil, Instructions to jury. Civil action commenced in the Superior Court Department on March 8, 2012. The case was tried before Diane M. Kottmyer, J. Jonathan D. Orent (Dennis A. Costigan with him) for the plaintiff. Robert T. Adams, of Missouri (Susan M. Donnelly Murphy with him) for the defendant. KATZMANN, J. The plaintiff Diane Albright, an Ohio resident, brought this action in the Superior Court against defendant Boston Scientific Corporation (BSC), a Massachusetts-based company, seeking damages for injuries that she sustained after having BSC’s “Pinnacle Pelvic Floor Repair” kit (Pinnacle device) surgically implanted to treat her pelvic organ prolapse (POP) condition.[2] BSC designed, manufactured, and marketed the Pinnacle device and sold it to the Ohio hospital where Albright’s surgery took place. After a three-week trial, a jury found for BSC on Albright’s claims of defective design and inadequate warning. On appeal, Albright challenges the exclusion of the medical application caution (caution) contained within the 2004 material safety data sheet (MSDS)[3] that had been provided to BSC by its supplier of the polypropylene material used to fabricate the mesh in the Pinnacle device. Albright offered the caution for the limited purpose of showing notice and knowledge on the part of BSC. Albright also claims error from the exclusion of two letters that the United States Food and Drug Administration (FDA) sent to BSC in 2012.[4] We conclude that, in the context of the case as it unfolded at trial, it was prejudicial error to exclude the proffered caution and FDA letters. The judgment in favor of BSC shall therefore be vacated and the case remanded to the Superior Court for a new trial. Background. There was evidence from which the jury could have found the following.[5] Surgeries. In 2008, Albright had surgery to treat POP symptoms involving her bladder. Dr. Jay Meyer performed a procedure[6] that did not involve the implantation of surgical mesh. Less than twelve months later, Albright experienced a recurrence of the bulging sensation in her […]
Categories: News Tags: 1112316, Albright, boston, Corporation, Lawyers, Scientific, Weekly
311 West Broadway LLC v. Zoning Board of Appeal of Boston, et al. (Lawyers Weekly No. 11-106-16)
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-1227 Appeals Court 311 WEST BROADWAY LLC vs. ZONING BOARD OF APPEAL OF BOSTON & others.[1] No. 15-P-1227. Suffolk. May 13, 2016. – August 23, 2016. Present: Katzmann, Carhart, & Sullivan, JJ. Zoning, Variance, Appeal, Jurisdiction. Jurisdiction, Superior Court, Zoning. Superior Court, Jurisdiction. Civil action commenced in the Superior Court Department on June 13, 2013. A motion to dismiss was heard by Brian A. Davis, J., and a motion to file an amended complaint was also heard by him. Edward J. Lonergan for 311 West Broadway LLC. Kate Moran Carter for Bromfield Development LLC. Adam Cederbaum for zoning board of appeal of Boston. KATZMANN, J. The plaintiff, 311 West Broadway, LLC (311 West Broadway), appeals from a judgment of the Superior Court dismissing its pending appeal pursuant to the Boston zoning enabling act, St. 1956, c. 665, § 11, as amended through St. 1993, c. 461, § 5 (zoning act), from a decision of the defendant zoning board of appeal of Boston (board) in favor of the defendant Bromfield Development, LLC (Bromfield), in the wake of a new decision issued by the board after an assented-to, judicially-ordered remand. The Superior Court had gained jurisdiction when an appeal was filed from the initial decision of the board, the parties agreed after the filing of that appeal to a judicial remand, the order of remand created no scheduling deadlines for the parties, and the parties provided status reports to a judge regarding the proceedings before the board and the further Superior Court litigation that they contemplated following the board’s new decision. 311 West Broadway did not file an appeal from the new decision of the board, and the question is whether the court was deprived of jurisdiction because a new appeal was required. We conclude that, in the circumstances here, a new appeal was not required and the court was not divested of jurisdiction. We reverse. Background.[2] 311 West Broadway owns property at 311-313 West Broadway in the South Boston section of Boston that abuts property owned by Bromfield at 315-319 West Broadway. Starting in 2012, Bromfield sought approval to change the occupancy of its property from a fitness center and private club to a fitness center, offices, and residential units, and to build a new four-story vertical addition over its […]
South Boston Elderly Residences, Inc. v. Moynahan (Lawyers Weekly No. 11-188-15)
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 15-P-319 Appeals Court SOUTH BOSTON ELDERLY RESIDENCES, INC. vs. GERALD MOYNAHAN. No. 15-P-319. Suffolk. November 2, 2015. – December 15, 2015. Present: Agnes, Sullivan, & Blake, JJ. Practice, Civil, Summary Process, Appeal, Dismissal of appeal, Assembly of record. Summary Process. Rules of Appellate Procedure. Summary process. Complaint filed in the Boston Division of the Housing Court Department on February 4, 2013. A motion to dismiss the appeal was heard by Jeffrey M. Winik, J. A. Joseph Ross for the tenant. W. Paul Needham for the landlord. BLAKE, J. Following the entry of judgment in a summary process action in the Boston Division of the Housing Court, the defendant tenant, Gerald Moynahan, filed a notice of appeal from the judgment. More than one year later, the plaintiff landlord, South Boston Elderly Residences, Inc. (SBER), moved to dismiss the appeal, citing Moynahan’s delay in filing the trial transcript with the court. The motion was allowed, and this appeal followed. We reverse. 1. Procedural background. On October 28, 2013, Moynahan’s notice of appeal relating to the underlying judgment was filed with the court. On November 25, 2013, Moynahan through counsel (counsel) ordered a copy of the recording of the trial, which the court received on December 2, 2013, and so notified counsel that day. On January 21, 2014, counsel retrieved the copy and sent it to be transcribed. A dispute arose between the transcriber and counsel as to who would file the transcript with the court. The transcriber ultimately refused to file the transcript, contrary to Mass.R.A.P. 8(b)(3)(iv), as appearing in 388 Mass. 1106 (1983). On February 18, 2014, the transcription was completed and delivered to counsel. Rather than filing the transcript when he received it from the transcriber, counsel decided to wait until after he recovered from a scheduled surgery to file it.[1] Counsel eventually filed the transcript with the court on December 12, 2014. On December 17, 2014, SBER filed a motion to dismiss the appeal for undue delay pursuant to Mass.R.A.P. 9(c), as amended, 417 Mass. 1601 (1994), and Mass.R.A.P. 10(c), as amended, 417 Mass. 1602 (1994). After a hearing, a judge allowed the motion, on the ground that counsel had committed inexcusable neglect by purposely delaying the filing of the transcript to control the timing of the appeal. Moynahan filed a timely notice […]
Boston edvelopment Authority v. Pham, et al. (Lawyers Weekly No. 11-184-15)
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-1734 Appeals Court BOSTON REDEVELOPMENT AUTHORITY vs. JEFFREY PHAM & another.[1] No. 14-P-1734. Suffolk. October 1, 2015. – December 9, 2015. Present: Kafker, C.J., Katzmann, & Rubin, JJ. Housing. Redevelopment Authority. Deed. Real Property, Deed, Condominium. Condominiums, By-laws, Master deed. Practice, Civil, Findings by judge, Attorney’s fees. Civil action commenced in the Superior Court Department on December 1, 2010. The case was heard by Bonnie H. MacLeod, J., and a motion for attorney’s fees and costs was heard by her. Edward S. Englander (Shannon F. Slaughter with him) for the plaintiff. James A. Schuh for Jeffrey Pham. KAFKER, C.J. In this case we must decide whether Jeffrey Pham violated affordable housing restrictions established by the Boston Redevelopment Authority (BRA) that (1) required Pham to maintain his condominium unit as his principal residence, and (2) prohibited him from leasing his unit for business or investment purposes. As we discern no error in the Superior Court judge’s determination that Pham continued to occupy his condominium unit as his principal residence despite his extensive work-related travel, and that he did not violate any deed or other covenants when he took in a succession of roommates to share the space and defray the carrying costs of the unit, we affirm. 1. Background.[2] a. 2007 purchase of affordable housing unit. Having won a housing lottery and been approved by the BRA, on June 1, 2007, Jeffrey Pham purchased unit 413, a two-bedroom affordable condominium unit at 2400 Beacon Street in the Chestnut Hill section of Boston (unit or premises). His application stated that his sister, a college student, would live in the unit with him. Pham signed a number of documents relative to his purchase of the unit, including the unit deed, a deed rider covenant for affordable housing (covenant), a note, and a mortgage identifying the BRA as the mortgagee. In addition, recorded with the unit deed is an affirmation signed by Pham accepting the unit deed and agreeing to its provisions along with the provisions of the master deed and declaration of trust,[3] including the by-laws and rules and regulations adopted by the trustees of the condominium. Both as part of his application and yearly thereafter, Pham executed an affidavit averring that he occupied the unit as his principal residence. The purpose of the covenant, […]
Scholz, et al. v. Delp; Scholz v. Boston Herald, Inc., et al. (Lawyers Weekly No. 10-189-15)
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-11511 SJC-11621 DONALD THOMAS SCHOLZ & another[1] vs. MICKI DELP. DONALD THOMAS SCHOLZ vs. BOSTON HERALD, INC., & others.[2] Suffolk. November 4, 2014. – November 25, 2015. Present: Spina, Botsford, Duffly, & Lenk, JJ. Libel and Slander. Practice, Civil, Summary judgment, Costs. Civil action commenced in the Superior Court Department on October 12, 2007. The case was heard by John C. Cratsley, J., on a motion for summary judgment. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Civil action commenced in the Superior Court Department on March 11, 2010. The case was heard by Frances A. McIntyre, J., on a motion for summary judgment, and a motion for costs was heard by her. The Supreme Judicial Court granted an application for direct appellate review. Nicholas B. Carter (Edward Foye & Seth J. Robbins with him) for the plaintiffs. Kathy B. Weinman for Micki Delp. Jeffrey S. Robbins for Boston Herald, Inc. Bruce D. Brown & Gregg P. Leslie, of the District of Columbia, & Cynthia A. Gierhart, of New York, for Reporters Committee for Freedom of the Press & others, amici curiae, submitted a brief. DUFFLY, J. In the mid-1970s, Donald Thomas Scholz, a musician, composer, recording engineer, and record producer, founded the rock band “Boston.” After many years playing in the band, Brad Delp, who was its lead singer, committed suicide on March 9, 2007. The Boston Herald, Inc., published three stories regarding Brad’s suicide, written by columnists Gayle Fee and Laura Raposa, who relied on information from Brad’s former wife, Micki Delp,[3] and various unnamed “insiders” and “friends.” Scholz filed an action for defamation in the Superior Court against Micki, arguing that the statements made by her and reported in the newspaper articles insinuated that Scholz was responsible for Brad’s suicide. Scholz later brought an action in the Superior Court for defamation and intentional infliction of emotional distress against the Boston Herald, Inc., and its two columnists (collectively, the Herald), based on the same statements as reported in the three articles. The two cases were consolidated in the Superior Court after Micki had filed a motion for summary judgment. In August, 2011, a Superior Court judge allowed Micki’s motion, Scholz appealed, and the […]