Posts tagged "Division"

State Road Auto Sales, Inc. v. Massachusetts Division of Banks (Lawyers Weekly No. 09-013-18)

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1784CV04041-BLS2 ____________________ STATE ROAD AUTO SALES, INC. v. MASSACHUSETTS DIVISION OF BANKS ____________________ MEMORANDUM AND ORDER DENYING PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION State Road Auto Sales, Inc., seeks a preliminary injunction that would bar the Massachusetts Division of Banks from completing an ongoing adjudicatory hearing. The Division brought administrative charges asserting that State Road violated G.L. c. 255B, which governs retail installment sales of motor vehicles, by acting as a “motor vehicle sales finance company” without a license and by entering into illegal motor vehicle installment sales with individual consumers. The Legislature authorized the Commissioner of Banks to implement and enforce c. 255B. State Road is entitled to contest those charges through an evidentiary proceeding before a Division hearing officer. State Road argues that the Division’s administrative charges and adjudicatory proceeding are barred by State Road’s recent settlement of a class action brought on behalf of consumers who entered into motor vehicle leases with State Road that were in effect after October 21, 2013, and were signed before January 1, 2016. More specifically, State Road argues that the order approving the class action settlement deprived the Division of subject matter jurisdiction to decide the pending administrative charges and, in the alternative, that the prior settlement has collateral estoppel or issue preclusive effect that would bar the Division from exercising its jurisdiction over State Road. The Court concludes that State Road is not entitled to preliminary injunctive relief because it has failed to exhaust its administrative remedies and therefore is not likely to succeed on the merits of its claims. Cf. Fordyce v. Town of Hanover, 457 Mass. 248, 266 (2010) (vacating preliminary injunction because plaintiffs were “unlikely to succeed on the merits”). The Division of Banks has already began an enforcement action against State Road, those adjudicatory proceedings are still pending, and the determination of – 2 – whether the Division can prosecute and decide the administrative charges turns on disputed issues of fact and not pure issues of law. Under these circumstances, State Road must exhaust its administrative remedies at the Division before seeking to challenge the Division’s exercise of jurisdiction over State Road in court. See Wilczewski v. Commissioner of the Dept. of Envtl. Quality Eng’g, 404 Mass. 787, 793-794 (1989) (affirming dismissal of challenge to agency’s jurisdiction in pending matter); Gill v. Board of Reg. of Psychologists, 399 Mass. 724, 728 (1987) (ordering dismissal of action); East Chop Tennis Club v. Massachusetts Comm’n Against Discrim., 364 Mass. 444, 451 (1973) (vacating decree entered by Superior Court and ordering dismissal of action); Reliance Ins. Co. v. Commissioner of Ins., 31 Mass. App. Ct. 581, 585 (1991) (affirming dismissal of action). […]

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Posted by Massachusetts Legal Resources - March 1, 2018 at 9:05 am

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Essex Regional Retirement Board v. Justices of the Salem Division of the District Court Department of the Trial Court, et al. (Lawyers Weekly No. 11-086-17)

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-1158                                       Appeals Court   ESSEX REGIONAL RETIREMENT BOARD  vs.  JUSTICES OF THE SALEM DIVISION OF THE DISTRICT COURT DEPARTMENT OF THE TRIAL COURT[1] & another.[2]     No. 16-P-1158.   Essex.     March 8, 2017. – July 12, 2017.   Present:  Grainger, Blake, & Neyman, JJ.[3]     Public Employment, Retirement, Forfeiture of pension.  Police, Retirement.  Pension.  Constitutional Law, Public employment, Excessive fines clause.  County, Retirement board.  Practice, Civil, Action in nature of certiorari.  District Court, Appeal to Superior Court.       Civil action commenced in the Superior Court Department on July 14, 2015.   The case was heard by James F. Lang, J., on motions for judgment on the pleadings.     Michael Sacco for the plaintiff. Thomas C. Fallon for John Swallow.     GRAINGER, J.  The plaintiff, Essex Regional Retirement Board (board), appeals from a judgment allowing a motion for judgment on the pleadings in favor of defendant John Swallow.  The board determined that Swallow’s convictions of various criminal offenses committed in October, 2012, while on administrative leave, render him ineligible to receive a retirement allowance pursuant to G. L. c. 32, § 15(4).  We agree, and conclude that Swallow’s convictions fall within the purview of § 15(4).  We remand the case for consideration of the constitutionality of the assessed penalty under the Eighth Amendment to the United States Constitution. Background.  We summarize the procedural history and the underlying relevant facts which are undisputed.  In June, 2012, Swallow was placed on administrative leave from his duties as a sergeant in the Manchester police department.  At that time he was also suspended from a second job he held as a paramedic with Northeast Regional Ambulance Service.  Although Swallow left his badge and his service handgun at the police station, his license to carry a firearm was not suspended at that point.  After being placed on administrative leave, Swallow experienced significant depression and began drinking heavily on a daily basis. On the afternoon of October 26, 2012, Swallow was at home with his wife, Lauren Noonan.  He was drinking heavily and the couple began arguing, initially because Noonan was concerned that Swallow might drive his car.  The quarrel escalated; Noonan went to her bedroom and sat on the bed with one of her dogs.  Swallow then entered the room with a .45 caliber handgun, and grabbed Noonan by the shirt.  He began screaming […]

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Posted by Massachusetts Legal Resources - July 12, 2017 at 8:47 pm

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Deputy Chief Counsel for the Public Defender Division of the Committee for Public Counsel Services, et al. v. Acting First Justice of the Lowell Division of the District Court Department (Lawyers Weekly No. 10-084-17)

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-12121   DEPUTY CHIEF COUNSEL FOR THE PUBLIC DEFENDER DIVISION OF THE COMMITTEE FOR PUBLIC COUNSEL SERVICES & another[1]  vs.  ACTING FIRST JUSTICE OF THE LOWELL DIVISION OF THE DISTRICT COURT DEPARTMENT.       Suffolk.     November 9, 2016. – May 24, 2017.   Present:  Gants, C.J., Hines, Gaziano, Lowy, & Budd, JJ.     Committee for Public Counsel Services.  District Court, Drug court session.       Civil action commenced in the Supreme Judicial Court for the county of Suffolk on February 23, 2016.   The case was reported by Duffly, J.     Paul R. Rudof, Committee for Public Counsel Services (Ryan M. Schiff, Committee for Public Counsel Services, also present) for the plaintiffs. Bethany L. Stevens for the defendant.     HINES, J.  This matter is before us on a reservation and report, by a single justice of this court, of a petition for relief under G. L. c. 211, § 3.  The petition, brought by the Deputy Chief Counsel for the Public Defender Division of the Committee for Public Counsel Services and the Deputy Chief Counsel for the Private Counsel Division of the Committee for Public Counsel Services (collectively CPCS), sought an order affirming CPCS’s independent authority under G. L. c. 211D to select and supervise attorneys for indigent defendants in the pilot program it had launched in the drug court session of the Lowell Division of the District Court Department (drug court).  The issue arose after the Acting First Justice of the Lowell District Court (Justice), citing the need for a “team” approach to cases in the drug Court, removed CPCS attorneys from drug court cases to which they had been assigned and excluded CPCS attorneys from assignment to any new case in the drug court. The single justice, in her reservation and report, observed that “the matter raises some important legal questions that ought to be decided by the full court, concerning specialty courts in general and adult drug courts in particular, and the respective roles and responsibilities of judges, [CPCS], and individual defense attorneys.”  The issue highlights the tension that may arise between an attorney’s duty to zealously advocate for the rights of the drug court defendant and a drug court model that favors a collaborative and nonadversarial approach to supervision of the drug court defendant.  We recognize that the success of drug court outcomes depends in large part […]

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Posted by Massachusetts Legal Resources - May 24, 2017 at 7:41 pm

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Howell v. Brockton Division of the District Court Department (Lawyers Weekly No. 10-068-17)

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-12217   CURTIS HOWELL  vs.  BROCKTON DIVISION OF THE DISTRICT COURT DEPARTMENT.     Supreme Judicial Court, Superintendence of inferior courts.     May 3, 2017.     Curtis Howell appeals from a judgment of the county court in which the single justice declined to grant his petition for relief under G. L. c. 211, § 3.  His petition and other papers, which are disorganized and difficult to decipher, apparently relate to proceedings to evaluate his competency to stand trial on criminal charges in the District Court.  We affirm.   The case is before us on Howell’s memorandum and appendix pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), which requires a party challenging an interlocutory ruling of the trial court to “set forth the reasons why review of the trial court decision cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other available means.”  Howell has not carried his burden under the rule.  In his memorandum, rather than demonstrating that the District Court judge has made a ruling that cannot be remedied in the ordinary appellate process or by other means, he presses an unsubstantiated claim that he has been subjected to unlawful surveillance since childhood by means of an implanted device.  In particular, he does not offer any reason why G. L. c. 123, § 17, which permits any person found incompetent to stand trial to petition the court at any time for a competency hearing, does not afford adequate review of a determination of incompetency.  Moreover, we have thoroughly reviewed the papers submitted to the single justice and find no basis to disturb her determination that Howell is not entitled to relief.[1]   Judgment affirmed.     The case was submitted on the papers filed, accompanied by a memorandum of law.   Curtis Howell, pro se.      [1] There is some suggestion that Howell may have been represented by counsel in the District Court.  He proceeded pro se in the county court.  “Absent extraordinary circumstances, a party represented by counsel in pending criminal proceedings is not entitled to challenge interlocutory rulings pro se.”  Azubuko v. Commonwealth, 464 Mass. 1014, 1014 (2013), citing Commonwealth v Molino, 411 Mass. 149, 152 (1991). Full-text Opinions

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Posted by Massachusetts Legal Resources - May 3, 2017 at 7:13 pm

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Charbonneau v. Presiding Justice of the Holyoke Division of the District Court Department (Lawyers Weekly No. 10-009-16)

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-11908   JOSHUA CHARBONNEAU  vs.  PRESIDING JUSTICE OF THE HOLYOKE DIVISION OF THE DISTRICT COURT DEPARTMENT.       Suffolk.     October 8, 2015. – January 22, 2016.   Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.     Supreme Judicial Court, Superintendence of inferior courts.  District Court.  Practice, Criminal, Plea.  Statute, Construction.       Civil action commenced in the Supreme Judicial Court for the county of Suffolk on May 13, 2015.   The case was reported by Botsford, J.     Paul R. Rudof, Committee for Public Counsel Services (Ryan M. Schiff, Committee for Public Counsel Services, with him) for the plaintiff. Susanne G. Reardon, Assistant Attorney General, for the defendant. William C. Newman, Chauncey B. Wood, & Joseph N. Schneiderman, for American Civil Liberties Union of Massachusetts & another, amici curiae, submitted a brief.   HINES, J.  In this appeal, we determine whether a standing  order of the Holyoke Division of the District Court Department (Holyoke District Court), prohibiting the tender of a so-called “defendant-capped” plea on the day of trial, contravenes the guilty plea procedure mandated in G. L. c. 278, § 18, and Mass. R. Crim. P. 12, as appearing in 442 Mass. 1511 (2004).  Joshua Charbonneau, who stands charged in the Holyoke District Court with larceny over $ 250, challenges the standing order on statutory and constitutional grounds.  He contends that the standing order violates his right to tender a defendant-capped plea at any time prior to trial because neither G. L. c. 278, § 18, nor Mass. R. Crim. P. 12 imposes a time limit on such tenders.  He also asserts that the judicially imposed time limit unconstitutionally burdens his right to due process.  We conclude that the standing order conflicts with and impairs a  defendant’s right to tender a defendant-capped plea as provided in G. L. c. 278, § 18, and Mass. R. Crim. P. 12.  Consequently, we vacate the standing order on that ground and bypass Charbonneau’s constitutional claim.[1] 1.  Background.  On February 19, 2015, the presiding justice of the Holyoke District Court[2] (presiding justice) promulgated a standing order applicable to trials beginning with the June, 2015, jury-of-six session.  In accordance with the standing order, a defendant who intended to proffer a defendant-capped plea was required to do so at the final pretrial status conference which, in the Holyoke District Court, is scheduled for the Wednesday two weeks prior to […]

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Posted by Massachusetts Legal Resources - January 22, 2016 at 6:02 pm

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Subcontracting Concepts, Inc. v. Commissioner of the Division of Unemployment Assistance, et al. (Lawyers Weekly No. 11-147-14)

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   13-P-269                                        Appeals Court   SUBCONTRACTING CONCEPTS, INC.  vs.  COMMISSIONER OF THE DIVISION OF UNEMPLOYMENT ASSISTANCE & another.[1] No. 13-P-269. Middlesex.     October 8, 2013. – November 12, 2014.   Present:  Rubin, Milkey, & Agnes, JJ.   Employment Security, Employment relationship, Burden of proof.   Civil action commenced in the Ayer Division of the District Court Department on August 23, 2011.   The case was heard by Michael J. Brooks, J.     Jack K. Merrill for the plaintiff. Suleyken D. Walker, Assistant Attorney General, for Commissioner of Unemployment Assistance.      AGNES, J.  This case concerns the liability of the plaintiff, Subcontracting Concepts, Inc. (SCI), a New York corporation, for contributions to the Massachusetts unemployment compensation fund (fund) pursuant to G. L. c. 151A, §§ 13 & 14.  The Division of Unemployment Assistance (DUA) determined that the defendant Kenneth Flynn was an “employee,” who performed “employment” services for SCI, who was his “employer.”  SCI contends that Flynn was an independent contractor (and not an employee) under a statutory exemption set forth in G. L. c. 151A, § 2.  For the reasons that follow, we conclude that the board of review (board) of the DUA ruled correctly that Flynn was an employee who performed services for SCI, and thus we affirm the judgment of the District Court which reached the same result. 1.  Procedural background.[2]  This appeal arose out of a claim for unemployment compensation filed by Flynn in September, 2009.  Flynn worked from April 4, 2009, to August 12, 2009, when he was terminated.  Flynn named Ace Expediters of Alabama, Inc. (Ace), as his employer.  Flynn did not work for anyone else during this period.[3] 2.  Factual background.  The examiner made the following findings of fact which are amply supported by the evidence presented at the hearing.  On March 21, 2009, Flynn entered into a written contract with SCI to provide services to “SCI and its customers.”[4] The examiner found that SCI “is engaged in providing drivers and vehicles to client courier services to perform their necessary delivery work.  They also provide a payroll service, paying the drivers, who are always hired as independent contractors.”  Flynn did not sign a contract with SCI’s courier client for whom he made the deliveries, in this case Ace.   Flynn’s agreement with SCI states that “no employer/employee relationship is created under this agreement or otherwise.”  No taxes were deducted from Flynn’s pay […]

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Posted by Massachusetts Legal Resources - November 12, 2014 at 8:41 pm

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Pepin, et al. v. Division of Fisheries and Wildlife (Lawyers Weekly No. 10-027-14)

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‑11332   WILLIAM PEPIN & another[1]  vs.  DIVISION OF FISHERIES AND WILDLIFE.   Hampden.     October 8, 2013.  ‑  February 18, 2014. Present:  Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.     Administrative Law, Agency’s authority, Agency’s interpretation of statute, Decision, Hearing, Proceedings before agency, Regulations, Summary decision.  Practice, Civil, Review of administrative action.  Regulation.  Division of Fisheries and Wildlife.  Massachusetts Endangered Species Act.     Civil action commenced in the Superior Court Department on September 1, 2009.   A motion for judgment on the pleadings was heard by C. Jeffery Kinder, J., and motions for summary judgment were heard by Constance M. Sweeney, J.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     William J. Murray for the defendant. Matthew C. Ireland, Assistant Attorney General, for the plaintiffs. The following submitted briefs for amici curiae: Damien M. Schiff & Jonathan Wood, of California, & Donald R. Pinto, Jr. for Pacific Legal Foundation. Jason C. Rylander & Michael P. Senatore, of the District of Columbia, for Defenders of Wildlife & another. Jeffrey B. Augello & David S. Jaffe, of the District of Columbia, for National Association of Home Builders. Douglas H. Hallward-Driemeier, Jacob Scott, Jacob M. Heller, & Kevin P. Budris for Massachusetts Audubon Society & others.   Paul Peter Nicolai for Economic Development Council of Western Massachusetts & another. Benjamin Fierro, III for Home Builders Association of Massachusetts, Inc. Ann M. Risso for Nature Conservancy.       LENK, J.  William and Marlene Pepin (petitioners) own approximately thirty-six acres of land in Hampden.[2]  Their ability to construct a home on this land is restricted by the property’s delineation as a “priority habitat” for the eastern box turtle, a “species of special concern” under 321 Code Mass. Regs. § 10.90 (2012).  The property has been so designated by the Division of Fisheries and Wildlife (division), a unit of the Department of Environmental Protection, pursuant to the implementing regulations of the Massachusetts Endangered Species Act, G. L. c. 131A, §§ 1-7 (MESA).   MESA authorizes the division to designate certain areas as “significant habitats” of endangered or threatened species.  G. L. c. 131A, § 4.  Development of land within significant habitats is sharply restricted.  See G. L. c. 131A, §§ 2-4.  The division also has promulgated regulations establishing a second type of protected habitat, denoted “priority habitat,” to protect species that are either […]

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Posted by Massachusetts Legal Resources - February 20, 2014 at 12:11 pm

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Lighthouse Masonry, Inc., et al. v. Division of Administrative Law Appeals, et al. (Lawyers Weekly No. 10-204-13)

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‑11318     LIGHTHOUSE MASONRY, INC., & another[1]  vs.  DIVISION OF ADMINISTRATIVE LAW APPEALS & another.[2]     Suffolk.     September 9, 2013.  ‑  December 31, 2013. Present:  Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.     Labor, Public works, Wages.  Public Works, Wage determination.  Attorney General.  Division of Administrative Law Appeals.  Administrative Law, Decision.       Civil action commenced in the Superior Court Department on August 26, 2008.   The case was heard by Mitchell H. Kaplan, J., on motions for summary judgment.   The Supreme Judicial Court granted an application for direct appellate review.     Harvey B. Heafitz (Scott K. Semple with him) for the plaintiffs. Richard C. Heidlage, Special Assistant Attorney General, for Division of Administrative Law Appeals. Karla E. Zarbo, Assistant Attorney General (Bruce Trager, Assistant Attorney General, with her) for the Attorney General. The following submitted briefs for amici curiae: Christopher C. Whitney & Scott K. Pomeroy for Associated Builders & Contractors, Massachusetts Chapter.   Donald J. Siegel & James A.W. Shaw for Massachusetts Building Trades Council. Patricia A. DeAngelis, Special Assistant Attorney General, for Department of Labor Standards.     BOTSFORD, J.  This case primarily concerns the process governing appeals from civil citations issued by the Attorney General for alleged violations of the Commonwealth’s prevailing wage law, G. L. c. 149, §§ 26-27H.  The plaintiffs, Lighthouse Masonry, Inc., and its president, Peter Alves (collectively, Lighthouse), appeal from a Superior Court judgment that affirmed a prevailing wage law decision of a Division of Administrative Law Appeals (DALA) hearing officer under G. L. c. 149, § 27C (b) (4) (§ 27C [b] [4]).  We consider here two interrelated questions about the DALA administrative hearing process directly raised in Lighthouse’s appeal:  whether the chief administrative magistrate of DALA has authority to review and approve a proposed decision of a DALA hearing officer in a § 27C (b) (4) appeal before the final decision is issued; and if so, whether, when a hearing officer of DALA resigns after drafting a decision on an appeal under § 27C (b) (4) but before the issuance of a final decision, another DALA hearing officer may take over responsibility for deciding the appeal.  We also consider Lighthouse’s challenge on substantive grounds to the affirmance of one of the civil citations issued against it by the Attorney General.  We leave for resolution […]

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Posted by Massachusetts Legal Resources - December 31, 2013 at 7:44 pm

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Mello Construction, Inc. v. Division of Capital Asset Management (Lawyers Weekly No. 11-147-13)

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‑1429                                                                             Appeals Court   MELLO CONSTRUCTION, INC.,  vs.  DIVISION OF CAPITAL ASSET MANAGEMENT. No. 12‑P‑1429. Bristol.     June 4, 2013.  ‑  December 18, 2013. Present:  Cypher, Graham, & Agnes, JJ.   Public Works, General contractor.  License.  Governmental Immunity.  Damages.  Practice, Civil, Action in nature of certiorari.       Civil action commenced in the Superior Court Department on July 25, 2007.   The case was heard by Thomas F. McGuire, Jr., J., on motions for judgment on the pleadings.     John J. McNamara for the plaintiff. James A. Sweeney, Assistant Attorney General, for the defendant.     GRAHAM, J.  The dispositive question presented in this appeal is whether a general contractor may sue the division of capital asset management and maintenance (DCAM) for money damages for a discretionary decision to deny an annual application for certification to bid on public construction projects.[1]  We conclude that it may not and affirm a Superior Court judgment dismissing the contractor’s complaint. Background.  From 1985 until 2004, Mello Construction, Inc. (Mello), a general contractor specializing in large-scale public construction projects, received annual certificates of eligibility from DCAM.[2]   In October, 2004, Mello submitted its annual application for certification.  See G. L. c. 149, § 44D(2), as amended by St. 2004, c. 193, § 15.  On August 19, 2005, DCAM issued a preliminary determination denying the application based in part on two negative contractor evaluations.[3]  See G. L. c. 149, § 44D(4).  As permitted by the statute, Mello timely requested reconsideration and submitted additional information and documentation to DCAM, including lengthy rebuttals of the allegedly biased evaluations.  See ibid.  On October 27, 2005, DCAM, refusing to disregard the negative evaluations, denied Mello’s application for four reasons:  (1) failure to achieve a minimum average project rating required for certification; (2) receipt of two failing scores on the Berkley and Andover projects (see note 3, supra); (3) failure to disclose on its application the termination from the Norwood project; and (4) failure to disclose the invoking of a performance bond.[4]   Following a hearing in January, 2006, the Attorney General issued a decision on April 6, 2007, affirming the denial of the application.[5]  See ibid.  In July, 2007, Mello commenced this Superior Court action against DCAM, seeking monetary damages.[6]  On December 1, 2009, DCAM filed a motion to have the case proceed pursuant to a writ of certiorari under […]

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Posted by Massachusetts Legal Resources - December 18, 2013 at 4:54 pm

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