Posts tagged "Company"

Omega Demolition Corp. v. Walsh Construction Company, et al. (Lawyers Weekly No. 09-024-18)

COMMONWEALTH OF MASSACHUSETTS   SUFFOLK, ss.                                                                       SUPERIOR COURT                                                                                                 CIVIL ACTION 2017-1736-BLS 2     OMEGA DEMOLITION CORP., Plaintiff   vs.   WALSH CONSTRUCTION COMPANY,  MCCOURT CONSTRUCTION COMPANY, INC., WALSH-MCCOURT JV1, TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA and CONTINENTAL CASUALTY COMPANY, Defendants     MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ PARTIAL MOTION TO DISMISS   This dispute arises out of a subcontract for bridge demolition between Plaintiff Omega Demolition Corp. (Omega) and Defendants Walsh Construction Company (Walsh) and Walsh-McCourt JV1, (WMJV), a joint venture between Walsh and Defendant McCourt Construction Company, Inc. (McCourt).  Omega, the subcontractor, alleges, among other things, that Walsh and WMJV breached the subcontract by failing to furnish so-called “shielding and containment” for Omega’s use in performing its demolition work.  Walsh, WMJV, McCourt and their sureties, Defendants Travelers Casualty and Surety Company of America and Continental Casualty Company, now move to dismiss those portions of Counts I through V which are based on this allegation, arguing that it is clear from the language of the subcontract that neither Walsh nor WMJV had any obligation to provide shielding and containment for Omega.  This Court disagrees and concludes that the Motion must be DENIED.   BACKGROUND The following is drawn from the allegations in the Complaint together with the exhibits attached to it and documents referenced therein.  See Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2000); Waterson v. Page, 987 F.2d 1, 3-4 (1st Cir. 1993). In March 2013, the Massachusetts Department of Transportation (MassDOT) awarded a general contract (the Primary Contract) to WMJV, a joint venture between Walsh and McCourt, for a project that involved the replacement of or improvements to nine bridges and associated sections of I-95 between Newburyport and Salisbury (the Project).  Project responsibilities were divided between Walsh and McCourt, with Walsh responsible for the portion of the Project involving the reconstruction of the John Greenleaf Whittier Bridge which carries I-95 over the Merrimack River. In December 2013, Walsh, as agent and on behalf of WMJV, entered into a Subcontract with Omega to perform work that included the demolition of the Whittier Bridge and lead abatement.  The Subcontract consisted of a one page document to which several exhibits were attached, including Exhibit A (“Terms and Conditions”) and Exhibit B (“Scope, Clarification, Alternates and Unit Prices”).  Article 1.2 of the Subcontract, under  the heading “Mutual Obligations,” states that: Subcontractor assumes toward Contractor all of the obligations, risks and responsibilities that the Contract by the Contract Documents has assumed to the Owner, and the Subcontractor is bound to the Contract by those obligations in the same manner as the Contractor is bound to the Owner.   The Subcontract also contains other references the Primary Contract.  […]

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Posted by Massachusetts Legal Resources - March 9, 2018 at 5:25 pm

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Skiffington v. Liberty Mutual Insurance Company (Lawyers Weekly No. 11-027-18)

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; SJCReportersjc.state.ma.us   17-P-425                                        Appeals Court   ANN SKIFFINGTON  vs.  LIBERTY MUTUAL INSURANCE COMPANY.     No. 17-P-425.   Hampden.     November 9, 2017. – March 8, 2018.   Present:  Meade, Shin, & Ditkoff, JJ.     Motor Vehicle, Insurance. Insurance, Motor vehicle insurance, Construction of policy, Coverage, Settlement of claim, Amount of recovery for loss.       Civil action commenced in the Superior Court Department on January 25, 2016.   A motion to dismiss was heard by Constance M. Sweeney, J.     Matthew T. LaMothe for the plaintiff. Daniel P. Tighe for the defendant.     SHIN, J.  Following a motor vehicle accident, the plaintiff, a third-party claimant, received reimbursement from Liberty Mutual Insurance Company (Liberty Mutual) for the loss of her vehicle.  She then sought additional payment for (1) costs arising from loss of use of her vehicle, even though she was unable to produce any documentation to Liberty Mutual that she had paid for substitute transportation, and (2) her title and registration fees and the residual value of her inspection sticker.  When Liberty Mutual denied liability for these claims, the plaintiff brought this putative class action, seeking declaratory relief under G. L. c. 231A and damages for unfair claim settlement practices under G. L. c. 93A, § 9, and G. L. c. 176D, § 3(9).  On Liberty Mutual’s motion, a Superior Court judge dismissed the complaint in its entirety under Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), and the plaintiff appeals.  As we conclude that the plaintiff has failed to allege compensable damages, we affirm, modifying the judgment to declare the rights of the parties. Background.  We accept the allegations of the amended complaint as true for purposes of this appeal.  See Goodwin v. Lee Pub. Schs., 475 Mass. 280, 284 (2016).  In October of 2015, the plaintiff’s 2005 Nissan Altima was struck by a driver whose vehicle was insured by Liberty Mutual under a standard Massachusetts automobile policy.[1]  The plaintiff’s vehicle was declared to be a total loss.  After determining that its insured was responsible for the accident, Liberty Mutual reimbursed the plaintiff for the loss of her vehicle. The plaintiff then sent Liberty Mutual a demand letter under G. L. c. 93A, claiming that she was also entitled to payment for loss of use, title and registration fees, and the residual value of her inspection sticker.  Liberty Mutual sent a letter in response detailing its rationale for denying the claims.  […]

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Posted by Massachusetts Legal Resources - March 8, 2018 at 4:23 pm

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Casseus, et al. v. Eastern Bus Company, Inc., et al. (Lawyers Weekly No. 10-024-18)

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-12315   IBNER CASSEUS[1] & another[2]  vs.  EASTERN BUS COMPANY, INC., & another.[3]       Middlesex.     October 2, 2017. – February 8, 2018.   Present:  Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.     Labor, Overtime compensation.  Bus.  Carrier, Charter service, License.  School and School Committee, Transportation of students.       Civil action commenced in the Superior Court Department on May 30, 2014.   Motions for summary judgment were heard by Dennis J. Curran, J.   An application for leave to prosecute an interlocutory appeal was allowed by Gabrielle R. Wolohojian, J., in the Appeals Court.  The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     Damien M. DiGiovanni (Joseph P. McConnell also present) for the defendants. Ian O. Russell for the plaintiffs. Peter J. Pingitore, for School Transportation Association of Massachusetts, Inc., amicus curiae, submitted a brief.     LENK, J.  This case requires us to construe an exemption to the Massachusetts overtime statute.  The overtime statute generally requires employers to pay an overtime premium to employees who work more than forty hours in a given week.  G. L. c. 151, § 1A.  The statute, however, “shall not be applicable to any employee who is employed . . . by an employer licensed and regulated pursuant to [G. L. c. 159A],” which governs motor vehicle common carriers of passengers in Massachusetts.  See G. L. c. 151, § 1A (11); G. L. c. 159A. The plaintiffs are bus drivers whose employer, the defendant Eastern Bus Company, Inc. (Eastern Bus), provides two types of transportation:  charter service, for which Eastern Bus must hold a license under the common carrier statute; and transportation of pupils between home and school, which does not constitute charter service.  See G. L. c. 159A, § 11A.  The bus drivers perform both of these services.  They claim that they are entitled to overtime payment.  Their argument is twofold. The bus drivers first assert that Eastern Bus is only “licensed and regulated” under the common carrier statute during the hours when it is providing charter service.  The exemption, then, only applies during those hours, and not when Eastern Bus is providing school transportation.  The bus drivers further argue that this overtime exemption should be interpreted in the same manner as two similarly structured Federal overtime exemptions.  These Federal exemptions, for certain employees of air and rail common carriers, are not applied to employees who spend a substantial […]

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Posted by Massachusetts Legal Resources - February 8, 2018 at 7:20 pm

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Acushnet Company v. Beam, Inc. (Lawyers Weekly No. 11-012-18)

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-1611                                       Appeals Court   ACUSHNET COMPANY  vs.  BEAM, INC.[1]     No. 16-P-1611.   Suffolk.     September 14, 2017. – February 2, 2018.   Present:  Wolohojian, Agnes, & Wendlandt, JJ.     Corporation, Sale of assets, Subsidiary.  Contract, Construction of contract.  Sale, Contract of sale, Of corporate property.  Taxation, Accounts receivable.  Practice, Civil, Summary judgment, Findings by judge.       Civil action commenced in the Superior Court Department on March 27, 2012.   The case was heard by Kenneth W. Salinger, J.   Eric R. Breslin, of New Jersey (Sean S. Zabeneh, of Pennsylvania, & Bronwyn L. Roberts also present) for the plaintiff. Michael J. Tuteur (Michael Thompson also present) for the defendant.     WOLOHOJIAN, J.  At issue is the interpretation, under New York law, of a provision in the stock purchase agreement pursuant to which Beam, Inc. (Beam), sold its subsidiary, Acushnet Company (Acushnet).[2]  More specifically, the parties disagree as to which of them is entitled to $ 16.62 million of value added tax (VAT) receivables carried on Acushnet’s balance sheet at the time of the closing.  Beam took the amount as a postclosing setoff for its own benefit; in response, Acushnet brought this suit.  On cross motions for summary judgment, a judge of the Superior Court determined that the contract provision was ambiguous.  A jury-waived trial followed before a second judge, who found that the “apparent purpose of the parties” was to allow for the setoff.  On appeal, Acushnet argues (1) that the motion judge erred, as a matter of law, when she concluded that the contract provision was ambiguous; and (2) that the trial judge’s interpretation of the contract was clearly erroneous.  We affirm. Background.  The following facts are either undisputed or taken from the trial judge’s findings of fact and supported by the record. In late 2010, Beam decided to sell Acushnet (a wholly-owned subsidiary engaged in the manufacture and distribution of golf products) by way of auction.  The eventual winning bidder was a group led by FILA Korea, Ltd. (buyer group), and, after a period of negotiations, the parties formalized the deal in a stock purchase agreement (SPA), dated May 19, 2011.[3]  A little over two months later, on July 29, 2011, the transaction closed, with the buyer group purchasing all of the stock in Acushnet for $ 1.225 billion, subject to certain postclosing […]

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Posted by Massachusetts Legal Resources - February 2, 2018 at 4:39 pm

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Bennett v. R.J. Reynolds Tobacco Company (Lawyers Weekly No. 09-007-18)

COMMONWEALTH OF MASSACHUSETTS   SUFFOLK, ss                                                                                             SUPERIOR COURT CIVIL ACTION 2017-0603-BLS1     TINA BENNETT, INDIVIDUALLY and as PERSONAL REPRESENTATIVE of the ESTATE OF DAVID BENNETT   vs.   R.J. REYNOLDS TOBACCO COMPANY, individually and as successor by merger to LORILLARD TOBACCO CO., PHILIP MORRIS USA, INC., and GLOBAL PARTNERS, L.P.     MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTION TO DISMISS   In this action the plaintiff, Tina Bennett, alleges claims for wrongful death and civil conspiracy against the defendants[1].  She brings these claims as the Personal Representative of the Estate of David Bennett (David and the Estate).[2]  The defendants have moved to dismiss the complaint on the grounds that Ms. Bennett was appointed as the personal representative of the Estate under G.L. c. 190B, § 3-108 (4) of the Uniform Probate Code (UPC or the Code), and an appointment under that provision of the Code does not carry with it the authority to bring either a wrongful death action under G.L. c. 229, § 2 or a tort claim that belonged to the plaintiff’s decedent at the time of his death and had become an asset of the estate. [3]   BACKGROUND FACTS The following facts are taken from the allegations of the plaintiff’s amended complaint, her petition for appointment as the personal representative of David’s estate (the Petition), and the Decree and Order on Petition for Late and Limited Formal Testacy and/or Appointment with respect to the Estate issued by the Worcester Probate and Family Court dated July 26 2017. David Bennett died on March 7, 2014.  In the Petition, his residence is listed as 22 Roosevelt Dr., Southbridge, Massachusetts.  Southbridge is a town in Worcester County.  This action was first filed on February 22, 2017, although the plaintiff had not yet filed any process seeking appointment as the personal representative of the Estate by that date.  On May 16, 2017, the plaintiff filed a Petition for Late and Limited Formal Testacy and/or Appointment in the Worcester Probate and Family Court.  On July 26, 2017, that Court issued a decree allowing the Petition and appointing the plaintiff the personal representative of the Estate pursuant to G.L. c. 190B, § 3-108(4).  On August 11, 2017, the plaintiff filed an amended complaint alleging her appointment as the personal representative of the Estate.   DISCUSSION The issue presented by this case is one of first impression, both in Massachusetts and other states that have adopted the UPC:  does a personal representative appointed with the limited authority provided by § 3-108(4) of the UPC have standing to bring tort actions that were the property of the deceased and are an asset of the estate and/or an action for wrongful […]

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Posted by Massachusetts Legal Resources - February 2, 2018 at 9:29 am

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MHM Correctional Services, Inc., et al. v. Darwin Select Insurance Company, et al. (Lawyers Weekly No. 09-008-18)

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss SUPERIOR COURT CIVIL ACTION NO. 2017-01825-BLS2 MHM CORRECTIONAL SERVICES, INC., CENTURION OF MINNESOTA, LLC, CENTURION OF MISSISSIPPI, LLC & MASSACHUSETTS PARTNERSHIP FOR CORRECTIONAL HEALTHCARE, LLC, Plaintiffs vs. DARWIN SELECT INSURANCE COMPANY N/K/A ALLIED WORLD SURPLUS LINES INSURANCE COMPANY & ALLIED WORLD ASSURANCE COMPANY, Defendants MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTION TO DISMISS This case concerns six separate claims for coverage brought by insureds against their insurers. The plaintiffs are MHM Correctional Services, Inc. (MHM), Centurion of Mississippi, LLC (Centurion-MS), Centurion of Minnesota, LLC (Centurion-MN), and Massachusetts Partnership for Correctional Healthcare, LLC (MPCH), each of which provides healthcare services to inmates housed in state prison facilities. Plaintiffs have been sued or are the subjects of indemnification demands in connection with six class action lawsuits alleging that the health care rendered to inmates in those facilities is so inadequate as to violate their constitutional rights. In the instant case, plaintiffs seek declaratory and injunctive relief as to the coverage obligations of the defendants Darwin Select Insurance Company n/k/a Allied World Surplus Lines Insurance Company (Darwin) and Allied World Assurance Company (Allied World) in relation to these six lawsuits. Defendants now move to dismiss, relying on the language of the underlying policies, all of which are before the Court. In the event that this Court does not 2 dismiss certain counts, the defendants ask this Court to stay the proceedings. For the reasons that follow, the Motion to Dismiss is Denied. BACKGROUND Plaintiffs have contracts with various Departments of Corrections (DOCs) throughout the United States to provide medical and mental healthcare services to their prisoner populations. MHM provides mental healthcare services for the Alabama DOC (ADOC). Centurion-MS provides medical and mental healthcare services for the Mississippi DOC (MSDOC). Centurion-MN provides medical and mental healthcare services for the Minnesota DOC (MNDOC). MPCH provides medical and mental healthcare services for the Massachusetts DOC (MADOC). These DOCs are currently defendants in six federal class action lawsuits filed between 2010 and 2015 on behalf of incarcerated individuals. Those lawsuits are: Dunn v. Thomas (Dunn), No. 2:14-cv-00601-MHT-TFM; DePriest v. Walnut Grove Correctional Authority (DePriest), No. 3:10-cv-663 DPJ-FKB; Dockery v. Epps (Dockery), No. 3:13-cv-326-TSL-JMR; Ligons v. Minnesota Department of Corrections (Ligons), No. 15-cv-2210, PJT/BT; Paszko v. O’Brien (Paszko), No. 1:15-cv-12298-NMG; and Briggs v. Massachusetts Department of Corrections (Briggs), No. 1:15-cv-40162-GAO. Each of these lawsuits seeks injunctive and declaratory relief as well as attorney’s fees. Both the MNDOC and Centurion-MN are defendants in Ligons. Both the MADOC and MPCH are defendants in Paszko and Briggs. The ADOC is a defendant in Dunn and the MSDOC is a defendant in DePriest and Dockery. MHM and Centurion-MS are not named defendants in Dunn, DePriest, or […]

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Posted by Massachusetts Legal Resources - February 2, 2018 at 5:55 am

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James B. Nutter & Company v. Estate of Murphy, et al. (and two consolidated cases) (Lawyers Weekly No. 10-013-18)

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-12325   JAMES B. NUTTER & COMPANY  vs.  ESTATE OF BARBARA A. MURPHY & others[1] (and two consolidated cases[2]).       Suffolk.     October 2, 2017. – January 18, 2018.   Present:  Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.     Mortgage, Foreclosure.  Real Property, Mortgage.       Civil actions commenced in the Land Court Department on October 27, 2015; January 28, 2016; and February 11, 2016, respectively.   A motion for partial judgment on the pleadings was heard by Robert B. Foster, J., and the cases were reported by him to the Appeals Court.   The Supreme Judicial Court on its own initiative transferred the cases from the Appeals Court.     Daniel Bahls (Uri Strauss also present) for Brett Jamieson. Effie Gikas Tchobanian for the plaintiff. Elaine Benkoski, for Estate of Barbara A. Murphy & others, was present but did not argue.     GANTS, C.J.  In 2007 and 2008, three elderly homeowners obtained loans from James B. Nutter & Company (Nutter), secured by reverse mortgages on their homes.  A few years later, two of the borrowers died; the third took ill and could no longer live in her home.  Alleging default, Nutter now seeks to foreclose on the mortgages.  Rather than proceed directly to foreclosure, however, Nutter brought separate actions in the Land Court against each borrower or the executors of their estate,[3] seeking in each case a declaratory judgment allowing it to foreclose pursuant to the statutory power of sale. Each of the reverse mortgages adhered to Nutter’s standard form, which states in paragraph 20 that, in the event of default, “[l]ender may invoke the power of sale and any other remedies permitted by applicable law.”  The issue we must resolve is whether this language in the reverse mortgage incorporates the statutory power of sale as set forth in G. L. c. 183, § 21, and allows Nutter to foreclose on the mortgaged property in accordance with the requirements in § 21.  We hold that it does. Background.  1.  Reverse mortgages.  For many retirees, one of the most reliable potential sources of income in later life is the accrued equity in their homes.  See Consumer Financial Protection Bureau, Issue Brief:  The costs and risks of using a reverse mortgage to delay collecting Social Security, at 8 (2017).  In order to secure cash for their living expenses, many […]

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Posted by Massachusetts Legal Resources - January 18, 2018 at 10:26 pm

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Kantzelis v. The Commerce Insurance Company (Lawyers Weekly No. 09-045-17)

1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CA No. 16-3144-BLS1 ALEX KANTZELIS, on behalf of himself and all others similarly situated, vs. THE COMMERCE INSURANCE COMPANY MEMORANDUM OF DECISION AND ORDER ON DEFENDANT’S MOTION TO STRIKE CLASS ALLEGATIONS In this action, the plaintiff, Alex Kantzelis, asserts claims arising out of the defendant, The Commerce Insurance Company’s (Commerce), failure to make payments directly to a secured lender that financed the plaintiff’s purchase of his automobile after Commerce denied coverage for the plaintiff’s collision claim because of misrepresentations in the plaintiff’s application for insurance. He brings this action on his own behalf as well as on behalf of a putative class of similarly situated Commerce insureds. The operative complaint governing the plaintiff’s claims is his Third Amended Class Action Complaint (the Complaint). The original complaint was filed on October 13, 2016. It was amended once as a matter of right and once with Commerce’s assent. Commerce answered this second amended complaint, and also moved to dismiss on the grounds that the plaintiff lacked standing to bring the claims he asserted because he had suffered no damages. At a hearing on that motion, the court noted that the plaintiff’s contention that his debt to the finance firm that financed his purchase of the car would have been extinguished if Commerce had paid 2 the secured lender, as it was allegedly required to do under the insurance policy, was not supported by the policy language—if Commerce paid the loss to the lender it would be substituted as the creditor for the amount of the loss so paid.1 The court went on to comment that it was conceivable that a person in the plaintiff’s position might have suffered some other loss because Commerce did not pay the lender, for example if the car was repossessed and this caused consequential damages to the insured. Plaintiff’s counsel suggested that he could allege these kinds of special damages. The court gave the plaintiff an opportunity to file the third amended complaint, which, as noted above, is now the operative complaint in this case. The case is now before the court on Commerce’s “Motion to Strike Class Allegations.” Commerce contends that because the plaintiff’s claims rest on his allegations of special consequential damages unique to him, they cannot be the predicate for class-based claims. Whether such a motion to strike may be brought under Massachusetts jurisprudence is a question of first impression and discussed below. Of course, a denial of this motion would not be tantamount to the certification of a class, the plaintiff would still have to move for class certification under Mass.R.Civ.P. 23 and provide evidentiary support for class treatment. Rather, the practical issue raised by […]

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Posted by Massachusetts Legal Resources - December 6, 2017 at 8:28 pm

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Ressler v. Deutsche Bank Trust Company Americas, et al. (Lawyers Weekly No. 11-148-17)

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-1711                                       Appeals Court   MONIKA M. RESSLER  vs.  DEUTSCHE BANK TRUST COMPANY AMERICAS, trustee,[1] & others.[2]     No. 16-P-1711.   Dukes.     October 4, 2017. – December 1, 2017.   Present:  Agnes, Sacks, & Lemire, JJ.     Mortgage, Foreclosure, Assignment.  Real Property, Mortgage.  Assignment.  Trust, Trustee’s authority.  Practice, Civil, Motion to dismiss, Attorney’s fees, Frivolous action.       Civil action commenced in the Superior Court Department on July 7, 2016.   A motion to dismiss was heard by Mitchell H. Kaplan, J.     Glenn F. Russell, Jr., for the plaintiff. Robert M. Mendillo for Deutsche Bank Trust Company Americas & another. Grace C. Ross, pro se, amicus curiae, submitted a brief.     SACKS, J.  The plaintiff Monika M. Ressler (the borrower) appeals a Superior Court judgment dismissing her complaint for declaratory and other relief based on her claim that the defendant Deutsche Bank Trust Company Americas, trustee of Residential Accredit Loans Inc. Mortgage Asset-Backed Pass-Through Certificates, Series 2006-QS18 (Deutsche Bank) had acquired her mortgage in violation of a governing pooling and service agreement, making its foreclosure on her mortgage invalid.  Because the borrower’s various arguments are either squarely barred by precedent or border on the frivolous, we affirm.  Although we deny Deutsche Bank’s request that, as a sanction for a frivolous appeal, we award attorney’s fees and costs against the borrower and her counsel jointly and severally, we caution counsel here that such a sanction is within an appellate court’s authority and is more likely to be imposed if counsel fails to heed warnings against repetitive pursuit of unmeritorious appeals.[3] Background.  We review the sufficiency of the borrower’s complaint de novo, taking as true its factual allegations and drawing all reasonable inferences in her favor.  Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011).  “[W]e look beyond the conclusory allegations in the complaint and focus on whether the factual allegations plausibly suggest an entitlement to relief.”  Ibid., citing Iannacchino v. Ford Motor Co., 451 Mass. 623, 635-636 (2008).  In doing so, we consider, among other things, exhibits attached to the complaint.  Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2000). In 2006 the borrower took a $ 500,000 mortgage loan from Lendia, Inc. (the lender), giving the lender a promissory note for that amount and a mortgage on her property in West Tisbury to secure […]

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Posted by Massachusetts Legal Resources - December 1, 2017 at 6:49 pm

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Clairmont, et al. v. Amer Sports Winter & Outdoor Company, et al. (Lawyers Weekly No. 09-039-17)

1 COMMONWEALTH OF MASSACHUSETTS PLYMOUTH, ss. SUPERIOR COURT CIVIL ACTION NO. 14-00505 FRANCIS CLAIRMONT AND GEORGE CLAIRMONT vs. AMER SPORTS WINTER & OUTDOOR COMPANY & another1 MEMORANDUM OF DECISION AND ORDER ON DEFENDANT, AMER SPORTS WINTER & OUTDOOR COMPANY’S, MOTION FOR SUMMARY JUDGMENT This action arises out of a January 15, 2011 incident in which the plaintiff, Francis Clairmont (“Clairmont’), tripped and fell while wearing a pair of boots manufactured by defendant Amer Sports Winter & Outdoor Company (“Amer Sports”). Clairmont’s Complaint against Amer Sports alleges negligence (Count I), defective design (Count II), breach of warranty (Count III), and failure to warn (Count IV) in connection her accident. Clairmont’s husband and co-plaintiff, George Clairmont, also asserts a claim for loss of consortium in the Complaint (Count IX). This matter is before the Court on Amer Sports’ motion for summary judgment on all of the Plaintiffs’ claims. For the following reasons, Amer Sports’ motion is ALLOWED. BACKGROUND The following relevant facts are either undisputed or presented in the light most favorable to the non-moving party, in accordance with the dictates of Mass. R. Civ. P. 56. On or about January 15, 2011, Plaintiff Francis Clairmont (“Francis”) was shopping at the Derby Street Shoppes in Hingham. She was wearing a pair of Solomon Gore-tex Contragrip 1 Eastern Mountain Sports, Inc. 2 ankle high hiking boots (“the Boots”) at the time. Amer Sports manufactured the Boots. The Boots have a “speed lacing” design, which includes a rigid J-shaped hook comprised of a curved neck and a fastening tail, through which the laces pass to tie each of the Boots. As Francis exited the store, the lace of the left boot caught on the hook of her right boot. She fell forward as her legs became entangled and was injured. Plaintiffs present no expert testimony on the design of the speed laces, and have adduced no evidence that Amer Sports knew, or had reason to know, of any similar accidents or occurrences caused by the speed laces. Amer Sports contends that manufacturers have used the patented speed lacing design for more than one-hundred years, and that this design is popular on hiking boots, work boots, and ice skates. DISCUSSION I. Standard of Review Summary judgment is appropriate when the record shows that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Mass. R. Civ. P. 56(c); see also DuPont v. Commissioner of Corr., 448 Mass. 389, 397 (2007). The moving party bears the initial burden of demonstrating that there is no triable issue and he or she is entitled to judgment. Ng Bros. Constr., Inc. v. Cranney, 436 Mass. […]

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Posted by Massachusetts Legal Resources - November 13, 2017 at 9:29 pm

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