Posts tagged "Evans"

Evans v. Mayer Tree Service, Inc., et al. (Lawyers Weekly No. 11-024-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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   14-P-1642                                       Appeals Court   GEORGE EVANS  vs.  MAYER TREE SERVICE, INC., & others.[1] No. 14-P-1642. Worcester.     September 9, 2015. – March 3, 2016.   Present:  Meade, Wolohojian, & Milkey, JJ. Practice, Civil, Summary judgment, Relief from judgment. Commissioner of the Department of Conservation & Recreation.  Trespass.  Real Property, Trespass, Removal of timber.  Nuisance.  Consumer Protection Act, Insurance, Unfair act or practice.  Insurance, Unfair act or practice.       Civil action commenced in the Superior Court Department on January 31, 2011.   The case was heard by Daniel M. Wrenn, J., on motions for summary judgment, and a motion for relief from judgment was also heard by him.     E. Douglas Sederholm for the plaintiff. Denise M. Tremblay for Mayer Tree Service, Inc. James T. Scomby for Marquis Tree Services, Inc. Elizabeth W. Morse for Farm Family Casualty Insurance Company.      MILKEY, J.  In August of 2008, an invasive, wood-boring insect known as the Asian longhorned beetle (ALH beetle) was discovered in the Worcester area.  The ALH beetle infests particular types of hardwood trees (host trees) that die as a result.  Federal and State officials mobilized quickly to address the problem.  Under the plans that they jointly developed and implemented, host trees that showed tell-tale signs of infestation were to be destroyed, together with those additional host trees that were deemed to be at high risk of infestation.  The actual tree removal work was to be done by State contractors (and their subcontractors). The plaintiff, George Evans, owns property at 14 Randolph Road in Worcester, where he lives with his wife.  There were numerous host trees at his property, including Norway maples.  It is uncontested that in February of 2009, defendant Marquis Tree Services, Inc. (Marquis),[2] entered Evans’s property and destroyed at least twenty-one Norway maples there at the specific direction of a Federal field inspector who mistakenly believed that Evans had given written permission to have all host trees on his property destroyed. The principal question before us is whether, under the particular circumstances presented, Marquis can be liable pursuant to G. L. c. 242, § 7, for destroying Evans’s trees “without license” to do so.  On cross motions for summary judgment, a Superior Court judge ruled in the defendants’ favor in a detailed and thoughtful decision.  Because we conclude that material facts remain in dispute that preclude entry of judgment […]

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Posted by Massachusetts Legal Resources - March 4, 2016 at 1:08 am

Categories: News   Tags: , , , , , , ,

Commonwealth v. Evans (Lawyers Weekly No. 11-084-15)

  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-975                                        Appeals Court   COMMONWEALTH  vs.  JOHNNY J. EVANS.     No. 14-P-975. Suffolk.     March 16, 2015. – July 31, 2015.   Present:  Katzmann, Milkey, & Agnes, JJ. Controlled Substances.  Practice, Criminal, Motion to suppress. Constitutional Law, Search and seizure, Investigatory stop, Reasonable suspicion.  Search and Seizure, Threshold police inquiry, Reasonable suspicion.  Threshold Police Inquiry.     Complaint found and returned in the Roxbury Division of the Boston Municipal Court Department on April 17, 2013.   A pretrial motion to suppress evidence was heard by David B. Poole, J.   An application for leave to prosecute an interlocutory appeal was allowed by Ralph D. Gants, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by him to the Appeals Court.     Cailin M. Campbell, Assistant District Attorney, for the Commonwealth. Rebecca A. Jacobstein for the defendant.     MILKEY, J.  During a street encounter that occurred in the Upham’s Corner neighborhood of the Dorchester section of Boston, Boston police discovered a bag of “crack” cocaine inside the defendant’s mouth.  The Commonwealth charged the defendant with possession of that cocaine in violation of G. L. c. 94C, § 34.  After holding an evidentiary hearing, a Boston Municipal Court judge allowed the defendant’s motion to suppress the cocaine.  On the Commonwealth’s interlocutory appeal of that ruling, we affirm. Background.  When reviewing a decision on a motion to suppress, we accept the judge’s findings of fact absent clear error, but make an independent determination whether the judge correctly applied constitutional principles to the facts as found.  Commonwealth v. Lyles, 453 Mass. 811, 814 (2009).  The following recitation is drawn from the judge’s careful findings, none of which the Commonwealth has demonstrated to be clearly erroneous. At approximately 2:00 A.M. on March 11, 2013, the defendant was walking alone along Humphreys Street toward Humphreys Place.  There, he was spotted by Boston police Officers Dodd and Conley who, dressed in plain clothes, were traveling in an unmarked police cruiser.  As the judge found, the officers had not “been dispatched to the area for a specific report of a crime or otherwise”; instead they were on routine patrol “in the area they covered.”  When they saw the defendant, they did not recognize him or “know him from any prior interactions.”  Rather, to them, “[h]e was just a person walking on the […]

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Posted by Massachusetts Legal Resources - August 1, 2015 at 12:53 am

Categories: News   Tags: , , , ,

Commonwealth v. Evans (Lawyers Weekly No. 10-172-14)

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-10873 COMMONWEALTH  vs.  THOMAS EVANS. Middlesex.     November 8, 2013. – October 20, 2014. Present:  Ireland, C.J., Spina, Cordy, Duffly, & Lenk, JJ.1   Homicide.  Robbery.  Felony-Murder Rule.  Malice.  Practice, Criminal, Capital case, Required finding, Argument by prosecutor.  Evidence, Consciousness of guilt, Expert opinion.  Witness, Expert.  Deoxyribonucleic Acid.     Indictments found and returned in the Superior Court Department on October 15, 2007.   The cases were tried before Raymond J. Brassard, J.     Leslie W. O’Brien for the defendant. Fawn D. Balliro Andersen, Assistant District Attorney (John C. Verner, Assistant District Attorney, with her) for the Commonwealth.     DUFFLY, J.  The defendant was indicted for the armed robbery and murder of Paula Doherty.  The victim was last seen alive on Saturday, September 30, 2006, at her Medford residence, where she, a friend, the defendant, and the defendant’s nephew had been using cocaine.  When the friend left at 5:30 P.M. that afternoon, the defendant had passed out in a chair in the victim’s room and the victim was preparing to go to sleep.  On Monday, October 2, after the victim failed to return telephone calls, the friend went to the victim’s house to check on her, and discovered the body of the victim, who had been beaten to death.  A Superior Court jury found the defendant guilty of murder in the first degree on theories of extreme atrocity or cruelty and felony-murder, with armed robbery as the predicate felony. On appeal, the defendant contends that the trial judge erred in denying his motions for a required finding of not guilty, because the circumstantial evidence of guilt was insufficient to establish that the defendant was at the scene of the crime during the period when the victim was robbed and killed.  The defendant argues also that the judge erred in allowing the admission of expert testimony concerning the potential absence of blood on the victim’s killer.  We conclude that there was no error requiring reversal and, after a careful review of the record, that there is no reason to exercise our authority under G. L. c. 278, § 33E, to order a new trial or to reduce the conviction to a lesser degree of guilt. 1.  Facts.  Based on evidence introduced at trial, the jury could have found the following. a.  Events of September 28 to 30, 2006.  The victim sold cocaine from her residence, […]

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Posted by Massachusetts Legal Resources - October 20, 2014 at 2:30 pm

Categories: News   Tags: , , , ,

Evans v. Lorillard Tobacco Company (Lawyers Weekly No. 10-102-13)

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‑11179   WILLIE EVANS, executor,[1]  vs.  LORILLARD TOBACCO COMPANY.     Suffolk.     December 3, 2012.  ‑  June 11, 2013. Present:  Ireland, C.J., Spina, Cordy, Botsford, Gants, & Duffly, JJ.     Tobacco.  Wrongful Death.  Negligence, Wrongful death, Duty to warn, Defective product, Adequacy of warning, Comparative, Gross negligence.  Consortium.  Parent and Child, Consortium.  Wilful, Wanton, or Reckless Conduct.  Conscious Pain and Suffering.  Consumer Protection Act, Unfair or deceptive act.  Uniform Commercial Code, Warranty.  Warranty.  Damages, Wrongful death, Loss of consortium, Punitive, Conscious pain and suffering.  Jury and Jurors.  Practice, Civil, Wrongful death, Challenge of jurors, Bias of judge, Mistrial, Dismissal, Instructions to jury.  Collateral Estoppel.  Estoppel.  Res Judicata.  Limitations, Statute of.  Evidence, Findings in another proceeding, Relevancy and materiality.       Civil action commenced in the Superior Court Department on June 28, 2004.   The case was tried before Elizabeth M. Fahey, J., and motions for judgment notwithstanding the verdict, for a new trial, for remittitur, and to alter or amend findings of fact and judgment were heard by her.   The Supreme Judicial Court granted an application for direct appellate review.     Paul F. Ware, Jr. (Kevin P. Martin & Andrew J. McElaney, Jr., with him) for the defendant.   Michael D. Weisman (Thomas Frisardi with him) for the plaintiff. The following submitted briefs for amici curiae: Robin S. Conrad, Kate C. Todd, & Lisa S. Blatt, of the District of Columbia, & Carolyn A. Pearce for Chamber of Commerce of the United States of America. Hugh F. Young, Jr., of Virginia, & David R. Geiger & Creighton Page for Product Liability Advisory Council, Inc. Richard A. Samp, of the District of Columbia, & Donald R. Pinto, Jr., for Washington Legal Foundation. Ellen Vargyas, of the District of Columbia, & Lisa G. Arrowood & Katherine A.K. Mumma for American Legacy Foundation & others. Michael B. Elefante for Tobacco Control Legal Consortium. Steven J. Phillips & Victoria Phillips, of New York, & Christopher Weld, Jr., Edward Foye, David C. Strouss, & Michael A. Lesser for Kathleen Donovan & another. Emily G. Coughlin & Cynthia M. Kopka for Massachusetts Defense Lawyers Association. Timothy C. Kelleher, III, & J. Michael Conley for Massachusetts Academy of Trial Attorneys.     GANTS, J.  Marie R. Evans (Marie) died in 2002, at the age of fifty-four, from small cell lung cancer caused by smoking cigarettes.  […]

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Posted by Massachusetts Legal Resources - June 11, 2013 at 6:48 pm

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