Rodriguez v. City of Somerville (Lawyers Weekly No. 10-124-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-11767 EDGAR RODRIGUEZ[1] vs. CITY OF SOMERVILLE. July 20, 2015. Massachusetts Tort Claims Act. Moot Question. Practice, Civil, Moot case, Presentment of claim under Massachusetts Tort Claims Act, Interlocutory appeal. Governmental Immunity. Municipal Corporations, Governmental immunity, Liability for tort. Notice, Claim under Massachusetts Tort Claims Act. After the plaintiff, Edgar Rodriguez acting on behalf of his minor son Rodrigo, commenced this negligence action against the city of Somerville (city), the city filed a motion to dismiss pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), claiming that the plaintiff failed to meet the presentment requirements set forth in the Massachusetts Tort Claims Act (Act). See G. L. c. 258, § 4. A judge in the Superior Court denied the motion, concluding that the letter satisfied the statutory requirements. The city appealed, and in doing so argued that the appeal, which was interlocutory, was proper pursuant to the doctrine of present execution. The Appeals Court concluded that the doctrine of present execution does not apply and dismissed the appeal. See Rodriguez v. Somerville, 86 Mass. App. Ct. 1 (2014). The case is now before this court on further appellate review. Background. The essential background, as set forth in the Appeals Court’s decision, is as follows: “On April 14, 2011, Rodrigo Rodriguez, a second grade student at the Argenziano School in [the city], was injured when a metal door frame fell off the front door of the school and struck him in the head. On May 11, 2011, an attorney representing the minor and his parent and next friend, Edgar Rodriguez, sent a letter to the mayor of [the city].” Id. at 2. The plaintiff maintains that the letter was meant to satisfy the presentment requirements of G. L. c. 258, § 4, and in his complaint filed on March 29, 2013, alleged that “[t]imely and proper presentment was made to [the city] pursuant to [G. L. c. 258, § 4].”[2] Discussion. 1. Mootness. We address, as an initial matter, the plaintiff’s motion to dismiss the city’s appeal to this court as moot. He argues that the presentment question is moot because the original pleadings in the case have been superseded by subsequent pleadings, filed while this appeal has been pending. Among other things, the plaintiff has filed an amended complaint; the city has, in turn, filed an amended answer; and additional […]
DaRosa, et al. v. City of New Bedford (Lawyers Weekly No. 10-081-15)
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-11759 JOHN DaROSA & others[1] vs. CITY OF NEW BEDFORD; MONSANTO COMPANY & others,[2] third-party defendants. Bristol. January 8, 2015. – May 15, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Public Records. Municipal Corporations, Public record. Attorney at Law, Work product, Attorney-client relationship. Privileged Communication. Practice, Civil, Discovery. Civil action commenced in the Superior Court Department on October 24, 2008. A motion to strike privilege and work product objections to certain documents and to compel their production, filed on May 15, 2014, was heard by Richard T. Moses, J. An application for leave to prosecute an interlocutory appeal was allowed by Judd J. Carhart, J., in the Appeals Court, and the case was reported by him to that court. The Supreme Judicial Court granted an application for direct appellate review. Shephard S. Johnson, Jr., for city of New Bedford. Mary K. Ryan (Cynthia M. Guizzetti with her) for AVX Corporation. John J. Gushue, for ABC Disposal Service, Inc., was present but did not argue. Mark P. Dolan & Stanley F. Pupecki, for Tutor Perini Corporation, submitted a brief. Michael R. Perry & Aaron D. Rosenberg, for NSTAR Electric Company & another, submitted a brief. John J. Davis & John M. Wilusz, for Massachusetts Municipal Association, amicus curiae, submitted a brief. Martha Coakley, Attorney General, & Judy Zeprun Kalman, for the Commonwealth, amicus curiae, submitted a brief. Brandon H. Moss, for Massachusetts Municipal Lawyers Association, Inc., amicus curiae, joined in a brief. GANTS, C.J. In General Elec. Co. v. Department of Envtl. Protection, 429 Mass. 798, 801 (1999) (General Electric), we held that “materials privileged as work product . . . are not protected from disclosure under the public records statute unless those materials fall within the scope of an express statutory exemption.” We noted that there is not an express statutory exemption for work product and rejected the claim that work product is protected from disclosure by an implied exemption. See id. at 801-806. In General Electric, the parties were not yet in litigation, so the work product was sought under the public records act rather than in discovery. And in General Electric we did not reach the issue whether the work product would be protected from disclosure under the “policy deliberation” […]
Goduti v. City of Worcester (Lawyers Weekly No. 11-048-15)
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-597 Appeals Court PHILIP L. GODUTI, trustee,[1] vs. CITY OF WORCESTER. No. 14-P-597. Suffolk. January 12, 2015. – May 13, 2015. Present: Fecteau, Wolohojian, & Massing, JJ. Moot Question. Practice, Civil, Moot case, Summary judgment. Real Property, Foreclosure of tax title, Record title. Mortgage, Foreclosure. Municipal Corporations, Tax title property. Taxation, Real estate tax: tax taking. Civil action commenced in the Land Court Department on September 29, 2011. The case was heard by Keith C. Long, J., on motions for summary judgment. Michael J. Markoff for the plaintiff. Karen A. Meyer, Assistant City Solicitor, for the defendant. FECTEAU, J. Philip L. Goduti appeals from the allowance of summary judgment against him by a judge of the Land Court in his declaratory judgment action regarding the legality of the city of Worcester’s (city) tax assessment for the years 2006 through 2011 on a property located at 2 Gambier Avenue, Worcester (property). He first contends that the city was not authorized, under G. L. c. 59, § 11, to assess taxes to his mortgagor, who failed to pay the taxes, but was required, instead, to assess taxes during those years only to him, the purported record owner of the property following his foreclosure by entry pursuant to G. L. c. 244, § 1. Second, Goduti argues that the judge incorrectly determined, especially at the summary judgment stage, that he had waived his foreclosure. While we need not reach his arguments because this case has become moot, we reject his contentions nevertheless. 1. Background. The property in question was first acquired by Sandra and James Dunn, husband and wife, in 1973. In 1989, Goduti became a mortgagee of the property behind two others.[2] While remaining current on the first two mortgages, the Dunns fell behind on their mortgage payments to Goduti. Utilizing the foreclosure by entry procedure of G. L. c. 244, § 1, Goduti recorded a certificate of entry in the registry of deeds on October 9, 1996, thereby signaling his intent to foreclose. During the three‑year period after Goduti filed his certificate of entry, after which foreclosure would be completed and his title would ripen, he accepted regular payments from the Dunns; Goduti disputes that those payments were applied to the mortgage, claiming that they were for use or occupation of the property. When the Dunns divorced in 2004, the […]
Chief of Police of the City of Worcester v. Holden (Lawyers Weekly No. 10-041-15)
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-11682 CHIEF OF POLICE OF THE CITY OF WORCESTER vs. RAYMOND J. HOLDEN, JR. Worcester. November 6, 2014. – March 11, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Firearms. License. Constitutional Law, Right to bear arms, Vagueness of statute. Due Process of Law, Revocation of license, Vagueness of statute. Words, “Suitable person.” Civil action commenced in the Superior Court Department on December 6, 2011. The case was heard by James R. Lemire, J., on motions for judgment on the pleadings. The Supreme Judicial Court granted an application for direct appellate review. Mel L. Greenberg for the defendant. Kevin M. Gould, Assistant City Solicitor (David M. Moore, City Solicitor, with him) for the plaintiff. Julia Kobick, Assistant Attorney General, for the Commonwealth, amicus curiae. The following submitted briefs for amici curiae: Jonathan E. Lowy, Kelly Sampson, Elizabeth Burke, Jonathan L. Diesenhaus, James W. Clayton, & Anna M. Kelly, of the District of Columbia, & Kathy B. Weinman for Brady Center to Prevent Gun Violence. Ben T. Clements & Lila E. Slovak for Massachusetts Chiefs of Police Association, Inc., & others. Edward F. George, Jr., & Susan Chu for Gun Owners’ Action League, Inc. Karen L. MacNutt for Commonwealth Second Amendment, Inc. SPINA, J. This case mounts a challenge under the Second Amendment to the United States Constitution[1] to the constitutionality of the “suitable person” standard in G. L. c. 140, § 131 (d) and (f), as amended through St. 1998, c. 180, § 41, by which licenses to carry firearms were issued, suspended, or revoked between 2005 and 2010.[2] The chief of police of the city of Worcester (chief) determined, based on the history of domestic violence of Raymond J. Holden, Jr., against his wife, that Holden was not a suitable person to have such a license. Holden sought judicial review of three separate adverse decisions of the chief: suspension of his license, then revocation of his license, and finally denial of his application for a new license to carry. After a complex history of District Court litigation that was consolidated and resolved largely in favor of Holden, the chief sought certiorari review in the Superior Court. On cross motions for judgment on the pleadings, a judge in the Superior Court ruled in favor of the […]
City of Worcester v. Civil Service Commission (Lawyers Weekly No. 11-016-15)
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 12-P-1844 Appeals Court CITY OF WORCESTER vs. CIVIL SERVICE COMMISSION & another.[1] No. 12-P-1844. Suffolk. December 6, 2013. – February 26, 2015. Present: Fecteau, Sullivan, & Maldonado, JJ. Practice, Civil, Review respecting civil service. Civil Service, Police, Decision of Civil Service Commission, Termination of employment, Judicial review. Administrative Law, Hearing, Judicial review. Municipal Corporations, Police. Police, Discharge. Public Employment, Police, Termination. Statute, Construction. Civil action commenced in the Superior Court Department on October 22, 2010. The case was heard by Carol S. Ball, J., on motions for judgment on the pleadings. Leo J. Peloquin for the plaintiff. Robert L. Quinan, Jr., Assistant Attorney General, for Civil Service Commission. Meghan C. Cooper for Leon Dykas. MALDONADO, J. The city of Worcester (city) appeals from a judgment of the Superior Court upholding the determination of the Civil Service Commission (commission) that an appointing authority may not suspend or terminate a tenured employee for the employee’s failure to testify at a hearing pursuant to G. L. c. 31, § 41. The city contends that because § 41 does not explicitly establish a statutory testimonial privilege and because police department rules and regulations require officers to provide truthful testimony when requested, the commission exceeded its authority and improperly intruded upon the city’s right to enforce its rules of conduct. We conclude that the commission’s determination that, because the § 41 hearing is held for the protection of the tenured employee and not the appointing authority, the tenured employee may not be sanctioned for the employee’s failure to testify at his § 41 hearing is consistent with the statutory purpose of § 41 and entitled to substantial deference. Therefore, we affirm. Factual background. The relevant facts drawn from the administrative record are undisputed. Leon Dykas was a tenured civil service employee, working as a police officer for the Worcester police department (department). In 2008, Dykas was purported to have engaged in noncriminal misconduct involving his ex-wife in violation of a “Last Chance Settlement Agreement” into which he had entered with the department.[2] Dykas cooperated with the department’s internal investigation and attended an investigatory interview at the department’s bureau of professional standards (BOPS) as ordered. Following review of the BOPS report and a transcript of Dykas’s interview, the chief of police, Gary Gemme, placed Dykas on paid administrative leave pending completion of […]
City of Somerville, et al. v. Commonwealth Employment Relations Board, et al. (Lawyers Weekly No. 10-016-15)
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-11620 CITY OF SOMERVILLE & another[1] vs. COMMONWEALTH EMPLOYMENT RELATIONS BOARD & others.[2] Suffolk. November 3, 2014. – February 3, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. School and School Committee, Retirement benefits, Group insurance, Collective bargaining. Municipal Corporations, Group insurance, Collective bargaining. Retirement. Public Employment, Retirement benefits, Collective bargaining. Insurance, Group. Appeal from a decision of the Division of Labor Relations. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Matthew J. Buckley, Assistant City Solicitor, for the plaintiffs. T. Jane Gabriel for the defendant. Laurie R. Houle, Ira Fader, Colin R. Confoey, & Jason Powalisz for the interveners, submitted a brief. SPINA, J. At issue in this case is whether the city of Somerville (city) and the school committee of Somerville (school committee) violated G. L. c. 150E, § 10 (a) (5), and, derivatively, G. L. c. 150E, § 10 (a) (1), when the city unilaterally reduced its percentage contribution to retired employees’ health insurance premiums without engaging in collective bargaining over the matter with current employees.[3] We conclude that the city and the school committee did not violate these statutory provisions. Accordingly, we reverse the decision of the Commonwealth Employment Relations Board (board), which reached a contrary conclusion. 1. Statutory framework. Our resolution of the present dispute is based on the interplay between G. L. c. 150E and G. L. c. 32B. General Laws c. 150E, § 2, protects the rights of public employees to self-organization and collective bargaining. Pursuant to G. L. c. 150E, § 6, “[t]he employer and the exclusive representative . . . shall negotiate in good faith with respect to wages, hours, standards [of] productivity and performance, and any other terms and conditions of employment . . . .” General Laws c. 150E, § 10, states, in relevant part: “(a) It shall be a prohibited practice for a public employer or its designated representative to: “(1) Interfere, restrain, or coerce any employee in the exercise of any right guaranteed under this chapter; “. . . “(5) Refuse to bargain collectively in good faith with the exclusive representative as required in section six . . . .” “Under the Home Rule Amendment, art. 89, § 6, of the Amendments to the Massachusetts Constitution, municipalities of the Commonwealth may choose to provide health insurance coverage to their […]
Categories: News Tags: 1001615, Board, City, Commonwealth, employment, Lawyers, Relations, Somerville, Weekly
Cape Cod Shellfish & Seafood Company, Inc., et al. v. City of Boston, et al. (Lawyers Weekly No. 11-148-14)
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 11-P-1474 Appeals Court CAPE COD SHELLFISH & SEAFOOD COMPANY, INC., & others[1] vs. CITY OF BOSTON & another.[2] No. 11-P-1474. Suffolk. October 9, 2013. – November 12, 2014. Present: Cypher, Katzmann, & Maldonado, JJ. Taxation, Exemption, Leased property, Abatement, Real estate tax: exemption, abatement. Contract, Lease of real estate. Landlord and Tenant, Taxation, Tenancy at sufferance, Lease as contract. Real Property, Lease. Massachusetts Port Authority. Boston. Civil action commenced in the Superior Court Department on November 9, 2004. After review by this court, 74 Mass. App. Ct. 1127 (2009), the case was heard by Elizabeth M. Fahey, J., on a motion for summary judgment. Marshall F. Newman for the plaintiffs. Adam Cederbaum, Assistant Corporation Counsel, for city of Boston. MALDONADO, J. The plaintiffs appeal from a Superior Court judgment in favor of the city of Boston (city) in its effort to tax the plaintiffs as lessees of property owned by the Massachusetts Port Authority (Massport), on Boston’s Fish Pier. Although, pursuant to G. L. c. 91 App., § 1-17 (§ 17), as appearing in St. 1978, c. 332, § 2, Massport and its lessees are not required to pay real estate taxes on Massport properties, an exception to the exemption applies to business lessees of property in the area known as the Commonwealth Flats. In an earlier decision pursuant to our rule 1:28, we determined that the plaintiffs are liable for taxes for their respective lease terms under that exception.[3] At issue now is whether the plaintiffs, all of whom remained on the property after the end of their lease terms, continue to be liable as lessees for the taxes assessed during the holdover period. Background. We recount the undisputed facts from the motion judge’s May 20, 2011, memorandum of decision and order on the city’s motion for summary judgment, supplemented also by the record on appeal as noted. The plaintiffs, Cape Cod Shellfish & Seafood Company, Inc.; John Mantia & Sons Co., Inc.; Atlantic Coast Seafood, Inc.; New England Marketers, Inc.; and Great Eastern Seafood, Inc., operated wholesale fish and seafood businesses on the Boston Fish Pier, which is owned by Massport and situated in the Commonwealth Flats area of South Boston. The plaintiffs originally occupied the property pursuant to written leases with Massport. The relevant leases of the plaintiffs covered the […]
City of Springfield v. Civil Service Commission, et al. (Lawyers Weekly No. 10-142-14)
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-11540 CITY OF SPRINGFIELD vs. CIVIL SERVICE COMMISSION & another.[1] Hampden. April 8, 2014. – August 18, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.[2] Civil Service, Provisional promotion, Termination of employment, Notice. Labor, Civil service. Employment, Termination. Jurisdiction, Civil Service Commission. Administrative Law, Evidence. Notice, Termination of employment, Administrative hearing. Waiver. Civil action commenced in the Superior Court Department on July 29, 2010. The case was heard by Bertha D. Josephson, J. on motions for judgment on the pleadings. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Maurice M. Cahillane, Jr. (William E. Mahoney with him) for city of Springfield. Andrew M. Batchelor, Assistant Attorney General, for Civil Service Commission. Bart W. Heemskerk for Joseph McDowell. BOTSFORD, J. Joseph McDowell was hired by the city of Springfield (city) in 1987 as a skilled laborer, and soon thereafter achieved the status of a permanent, tenured civil service employee of the city. In 1993, he received the first of two provisional promotions;[3] he worked in the second of these provisional positions until 2005, when the city terminated his employment. One issue we consider in this appeal is whether, despite being terminated from his provisional position, McDowell was entitled to appeal his termination pursuant to the relevant provisions of the civil service statute, G. L. c. 31, §§ 41–45; agreeing with the Civil Service Commission (commission), we conclude that he was. We also consider whether the commission, in deciding McDowell’s appeal, permissibly could consider that subsequent to the city’s discharge of McDowell, he had been indicted and then pleaded guilty to the crime of filing false tax returns. We decide that in the particular circumstances of this case, the commission was permitted to take the criminal proceeding against McDowell and its disposition into account, but that McDowell’s indictment for filing false tax returns did not qualify as an indictment “for misconduct in [McDowell’s] . . . employment” within the meaning of G. L. c. 268A, § 25, and thus a suspension based on the indictment would not have been valid. 1. Background. McDowell began working as a skilled laborer for the city in 1987. In 1989, he was promoted to the position of carpenter within the city’s civil service system. After completing his probationary period, McDowell […]
Categories: News Tags: 1014214, City, Civil, Commission, Lawyers, Service, Springfield, Weekly
City of Brockton v. Energy Facilities Siting Board (No. 1) (and two consolidated cases) (Lawyers Weekly No. 10-131-14)
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-11406 CITY OF BROCKTON vs. ENERGY FACILITIES SITING BOARD (No. 1) (and two consolidated cases[1]). Suffolk. March 4, 2014. – July 31, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.[2] Energy Facilities Siting Board. Public Utilities, Energy company, Electric company. Electric Company. Massachusetts Environmental Policy Act. Administrative Law, Decision, Judicial review, Substantial evidence. Environment, Air pollution, Environmental impact report. Municipal Corporations, Electric plant, Water supply. Civil actions commenced in the Supreme Judicial Court for the county of Suffolk on August 24, August 28, and September 2, 2009. After consolidation, the case was reported by Spina, J. Lisa C. Goodheart (Phelps T. Turner, Joshua D. Nadreau, & Staci Rubin with her) for Frank J. Babbin & others. John L. Holgerson for town of West Bridgwater. Gregor I. McGregor (Nathaniel Stevens with him) for city of Brockton. Sookyoung Shin, Assistant Attorney General, for Energy Facilities Siting Board. David S. Rosenzweig (Erika J. Hafner & Michael J. Koehler with him) for Brockton Power Company LLC. The following submitted briefs for amici curiae: Veronica Eady for Conservation Law Foundation. Rahsaan D. Hall, Matthew Cregor, Sasha N. Kopf, Tyler D. Crosby, & Priya A. Lane for Lawyers’ Committee for Civil Rights and Economic Justice. Wendy B. Jacobs & Aladdine D. Joroff for Hands Across the River Coalition. BOTSFORD, J. Brockton Power Company LLC (Brockton Power, or company) filed a petition pursuant to G. L. c. 164, § 69J¼ (§ 69J¼), with the Energy Facilities Siting Board (board) to construct and operate a 350-megawatt combined-cycle energy generating facility (facility) powered by natural gas and ultra-low sulfur distillate (ULSD) on a 13.2-acre lot in the city of Brockton (city). After extensive hearings, the board approved Brockton Power’s petition, with conditions. The city, the town of West Bridgewater (town), and a group of residents of the city and the town (residents), all interveners in the proceedings before the board (collectively, interveners), filed appeals in the county court pursuant to G. L. c. 164, § 69P, and G. L. c. 25, § 5.[3] A single justice reserved and reported the case to the full court.[4] On appeal the interveners argue[5] that the board (1) failed to adopt and apply the 2002 environmental justice policy that is a binding environmental protection policy of the Commonwealth; (2) improperly relied on the National Ambient Air Quality Standards for […]
The Woodward School for Girls, Inc. v. City of Quincy, et al. (Lawyers Weekly No. 10-129-14)
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-11390 THE WOODWARD SCHOOL FOR GIRLS, INC. vs. CITY OF QUINCY, trustee,[1] & another.[2] Norfolk. December 2, 2013. – July 23, 2014. Present: Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Trust, Charitable trust, Investments, Trustee’s accounts. Damages, Breach of fiduciary duty, Interest. Interest. Massachusetts Tort Claims Act. Governmental Immunity. Immunity from Suit. Municipal Corporations, Trusts, Governmental immunity. Waiver. Laches. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on July 11, 2007. After transfer to the Norfolk County Division of the Probate and Family Court Department, the case was heard by Robert W. Langlois, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. John S. Leonard (James S. Timmins, City Solicitor, with him) for city of Quincy. Sarah G. Kim (Josephine M. Deang Chin & Alison K. Eggers with her) for the plaintiff. CORDY, J. This dispute arises from a trust established in 1822 by former President John Adams and supplemented by a bequest of his grandson in 1886. The city[3] of Quincy (Quincy) served as trustee of the Adams Temple and School Fund and the Charles Francis Adams Fund (collectively, Funds) through two boards.[4] The Woodward School for Girls, Inc. (Woodward), the income beneficiary of the Funds since 1953, filed suit against Quincy initially seeking an accounting and thereafter asserting that Quincy committed a breach of its fiduciary duties to keep adequate records, invest the trust’s assets properly, exercise reasonable prudence in the sales of real estate, and incur only reasonable expenses related to the management of the Funds. We transferred the case here on our own motion following Quincy’s appeal and Woodward’s cross appeal from a Probate and Family Court judge’s ruling removing Quincy as trustee and ordering it to pay a nearly $ 3 million judgment.[5] On appeal, Quincy asserts that the trial judge erred in finding that Quincy committed a breach of its fiduciary duties to the Funds by failing to invest in growth equities to protect the principal when the Funds have only an income beneficiary to provide for, and by not heeding specific investment advice it received in 1973. In addition, Quincy challenges the award of damages, alleging that it was based on an improperly introduced and unsound […]