Posts tagged "Lawyers"

Commonwealth v. J.A., a juvenile (Lawyers Weekly No. 10-187-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12277

COMMONWEALTH  vs.  J.A., a juvenile.

Suffolk.     September 7, 2017. – November 20, 2017.

Present:  Gants, C.J., Lenk, Gaziano, Budd, Cypher, & Kafker, JJ.

DogYouthful Offender ActStatute, Construction.  Words, “Serious bodily harm.”

Indictments found and returned in the Suffolk County Division of the Juvenile Court Department on November 19, 2015.

A motion to dismiss was heard by Peter M. Coyne, J.

The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. read more

Posted by Stephen Sandberg - November 20, 2017 at 6:04 pm

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Commonwealth v. Sullivan (Lawyers Weekly No. 10-186-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-11808

COMMONWEALTH  vs.  GERALD SULLIVAN.

 

 

 

Middlesex.     April 7, 2017. – November 16, 2017.

Present:  Gants, C.J., Lenk, Gaziano, Budd, & Cypher, JJ.

HomicideFelony-Murder RuleArmed Home InvasionDeoxyribonucleic AcidPractice, Criminal, Witness, Hearsay, Confrontation of witnesses, Disclosure of evidence, Capital case.  Evidence, Hearsay, Expert opinion, Disclosure of evidence, Exculpatory, Qualification of expert witness, Impeachment of credibility.  Witness, Police officer, Expert, Impeachment, Competency, Credibility.  Constitutional Law, Confrontation of witnesses.  Due Process of Law, Disclosure of evidence. read more

Posted by Stephen Sandberg - November 16, 2017 at 9:03 pm

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Commonwealth v. Bolton (Lawyers Weekly No. 11-144-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-960                                        Appeals Court

COMMONWEALTH  vs.  SCOTT JOSEPH BOLTON.

No. 16-P-960.

Worcester.     October 18, 2017. – November 16, 2017.

Present:  Massing, Kinder, & Ditkoff, JJ.

Jurisdiction, Of crime.  District Attorney.  Constitutional Law, Place of trial.  Practice, Criminal, Place of trial, District Attorney, Plea, New trial.

Indictment found and returned in the Superior Court Department on November 18, 2011. read more

Posted by Stephen Sandberg - November 16, 2017 at 5:29 pm

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Wells Fargo Bank, N.A. v. Comeau (Lawyers Weekly No. 11-143-17)

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-335                                        Appeals Court

WELLS FARGO BANK, N.A., trustee,[1]  vs.  NANCY P. COMEAU.

No. 16-P-335.

Essex.     November 3, 2016. – November 15, 2017.

Present:  Agnes, Blake, & Desmond, JJ.

Subrogation.  Mortgage, Priority.  Real Property, Mortgage.

Civil action commenced in the Superior Court Department on June 17, 2013.

The case was heard by Timothy Q. Feeley, J., on motions for summary judgment. read more

Posted by Stephen Sandberg - November 15, 2017 at 4:26 pm

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Brangan v. Commonwealth (Lawyers Weekly No. 10-185-17)

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-12284

JAHMAL BRANGAN  vs.  COMMONWEALTH.

Suffolk.     September 7, 2017. – November 14, 2017.

Present:  Gants, C.J., Gaziano, Budd, Cypher, & Kafker, JJ.

Practice, Criminal, Double jeopardy, Indictment, Conduct of prosecutor, Argument by prosecutor.  Robbery.

Civil action commenced in the Supreme Judicial Court for the county of Suffolk on December 19, 2016.

The case was considered by Lowy, J.

Merritt Schnipper for the defendant.

Amal Bala, Assistant District Attorney, for the Commonwealth. read more

Posted by Stephen Sandberg - November 14, 2017 at 3:23 pm

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135 Wells Avenue, LLC v. Housing Appeals Committee, et al. (Lawyers Weekly No. 10-184-17)

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-12253

135 WELLS AVENUE, LLC  vs.  HOUSING APPEALS COMMITTEE & others.[1]

Suffolk.     April 6, 2017. – November 13, 2017.

Present:  Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, & Cypher, JJ.[2]

Municipal Corporations, Property, Use of municipal property.  Real Property, Deed, Restrictions.  Housing.  Zoning, Housing appeals committee, Low and moderate income housing, Board of appeals:  jurisdiction.  Permit.

Civil action commenced in the Land Court Department on January 14, 2016. read more

Posted by Stephen Sandberg - November 14, 2017 at 4:38 am

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Braintree Property Associates, LP v. Marzouki, et al. (Lawyers Weekly No. 09-038-17)

COMMONWEALTH OF MASSACHUSETTS
NORFOLK, ss. SUPERIOR COURT
CIVIL ACTION
NO. 15-00144
BRAINTREE PROPERTY ASSOCIATES, LP
vs.
FRANCO MARZOUKI, DR. WU, LLC, D.B.A EMACK & BOLIOS
AND ROBERT ROOK
and
FRANCO MARZOUKI, CROSS-CLAIM PLAINTIFF, vs. ROBERT ROOK, CROSS-CLAIM DEFENDANT
MEMORANDUM OF DECISION AND ORDER ON
CROSS-MOTIONS FOR SUMMARY JUDGMENT
This action arises out of a lease agreement between the property owner, plaintiff, Braintree Property Associates, LP (“Braintree”), the lease holder, defendant Dr. Wu, LLC, d/b/a Emack & Bolios (“Wu”), for which Robert Rook is the sole owner and manager. Defendants Rook and Franco Marzouki guaranteed Wu’s obligations to Braintree. There is no dispute that Wu breached its lease by vacating the property it leased from Braintree before its lease was up. Plaintiff moves for summary judgment on its claims against Wu, Rook and Marzouki. All defendants oppose. Wu and Rook cross-move for summary judgment against Braintree, improbably claiming that Braintree is entitled to no lost rent at all under the terms of Braintree’s own Lease, which Braintree opposes. Marzouki moves for summary judgment on his cross-claim for indemnification from Rook, which Rook opposes.
The issue at the core of this case is a straight-forward dispute about the measure of damages arising from Wu’s undisputed breach of its lease with Braintree. Based on the lease
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and the undisputed facts, in consideration of the parties’ memoranda of law and oral arguments, and for the reasons that follow, plaintiff’s motion for summary judgment is ALLOWED. Wu’s cross-motion for summary judgment is DENIED.
For other reasons, Marzuki’s motion for summary judgment on his cross-claim against Rook is DENIED.
FACTS
In reviewing a motion for summary judgment, the Court views the evidence in the light most favorable to the non-moving party and draws all reasonable inferences in his favor. Jupin v. Kask, 447 Mass. 141, 143 (2006), citing Coveney v. President & Trustees of the College of the Holy Cross, 388 Mass. 16, 17 (1983).
Braintree operates the South Shore Plaza, a shopping mall in Braintree. Rook is the sole owner and manager of Wu, which does business as Emack & Bolios, an ice cream seller.
On or about July 25, 2011, Wu, as tenant, entered into a lease (“Lease”) with Braintree for commercial space at the South Shore Plaza. The lease had a five-year term and required Wu to pay rent and fees. The lease term was to commence May 1, 2011 and end May 1, 2016.
On or about July 25, 2011, defendants Marzouki and Rook each executed a joint and several guaranty of Wu’s lease obligations.
Beginning in June, 2014, Wu stopped paying rent, and did not pay any rent thereafter. Neither Rook nor Marzouki made good on the rent Wu failed to pay to Braintree. On October 22, 2014, Wu ceased business, and on October 30, 2014, vacated the premises.
Braintree sent a demand letter to Wu dated November 26, 2014, which was copied to Marzouki and Rook and guarantors. That letter did not terminate the Lease but demanded all rental payments due under it, discounted to present value as permitted under the Lease and as
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reflected in a spreadsheet enclosed with the letter. The alleged damages totaled $ 126,773.55. The letter stated that Braintree “will assume the debt is valid unless the undersigned receives notice from Tenant within thirty (30) days after its receipt of this letter that Tenant disputes the validity of the debt, or any portion thereof,” in which event “the undersigned will obtain verification of the debt and mail a copy of such verification to the Tenant, upon request by the Tenant” but that “[i]f the total sum is not paid within thirty (30) days from the date of this letter, the undersigned will attempt to obtain a judgment” against Wu. In response, Wu did not pay the rent demanded. Instead, Wu wrote back by letter dated December 5, 2014 and claimed that the debt was disputed and demanded verification of it and noted that Braintree’s letter did not terminate the Lease. Braintree did not respond, but filed suit.
The Lease stated that Wu would be in default if it abandoned or vacated the Premises, as it did. Lease, §18.1(f). Among Braintree’s remedies were to collect the full rent due, terminate the Lease by giving such notice to Wu or re-enter and take possession of the Premises. If Braintree re-entered or took possession of the premises, Braintree could terminate the lease and demand that Wu pay all of the rent due under the Lease immediately or it could allow the Lease to continue and deduct from the rent owed any rent Braintree was able to collect on re-letting on an ongoing basis:
If Landlord re-enters the Premises … or if it takes possession pursuant to legal proceedings or otherwise, it may either terminate this Lease, but Tenant shall remain liable for all obligations arising during the balance of the original stated term as hereafter provided as if this Lease had remained in full force and effect, or it may, from time to time, without terminating this Lease, make such alternations and repairs as it deems advisable to relet the Premises, and relet the Premises … for such term … and at such rentals and upon other terms and conditions as Landlord in its sole discretion deems advisable; upon each such reletting all rental received by Landlord therefrom shall be applied, first, to any indebtedness other than rent due hereunder from Tenant to Landlord; second, to pay any costs and expenses of reletting, including broker’s and attorney’s fees and costs of
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alterations and repairs; third, to rent due hereunder, and the residue, if any, shall be held by Landlord and applied in payment of future rent as it becomes due hereunder.
If rental received from such reletting during any month are less than that to be paid during that month by Tenant hereunder, Tenant shall immediately pay any such deficiency to Landlord.
See §18.1.
Braintree eventually re-let the Premises on or about November, 2015, and the replacement tenant began paying rent in or about December 2015. Wu made no payments of any difference between the rent Wu owed and rent Braintree collected. Neither did Rook or Marzouki.
Under the Lease, a re-letting of the Premises was not a termination of the Lease in the absence of written notice. Id. (“No re-entry of taking possession of the Premises by landlord shall be construed as election to terminate this Lease unless a written notice of such termination is given by Landlord.”). Braintree gave no written notice of termination. Even where the Lease was not terminated but Braintree “takes action” because of Wu’s breach, Braintree could, as a remedy in addition to others it had, demand prospective damages according to a formula included in the Lease:
Notwithstanding any such reletting without termination, Landlord may at any time terminate this Lease for any prior breach or default. If Landlord terminates this Lease for any breach, or otherwise takes action on account of Tenant’s breach or default hereunder, in addition to any other remedies it may have, it may recover from Tenant all damages incurred by reason of such breach or default, including … an amount equal to the difference between the Minimum Rent1 and all items of additional rents reserved hereunder for the period which would otherwise would have constituted the balance of the Lease Term and the present rental value of the Premises for such period, both discounted in accordance with accepted financial practices to the then present worth … all of which shall immediately be due and payable from tenant to Landlord. In determining the rental value
1 Minimum Rent is defined in Sections 1.1(f) and 4.1 as the rent due under the lease for each year for the five-year period of the leasehold, with adjustments not relevant here.
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of the Premises, the rental realized by any reletting, if such reletting is accomplished by Landlord within a reasonable time after the termination of the Lease, shall be deemed prima facie to be the rental value, but if Landlord shall not undertake to relet or having undertaken to relet, has not accomplished reletting, then it will be conclusively presumed that the Minimum Rent and all items of additional rent reserved under this Lease represent the rental value of the Premises for the purposes herein (in which event the Landlord may recover from the Tenant, the full total of all Minimum Rent and all items of additional rent due hereunder, discounted to present value as hereinbefore provided). Landlord shall, however, account to Tenant for the Minimum Rent and additional rent received from persons using or occupying the Premises during the period representing that which would have constituted the balance of the Lease Term, but only at the end of said period, and only if Tenant shall have paid to Landlord its damages as provided herein, and only to the extent of sums received from Tenant as Landlord’s damages, Tenant waiving any claim to any surplus.
Section 18.2.
DISCUSSION
Under Mass. R. Civ. P. 56(c), either the plaintiffs or the defendants will be entitled to summary judgment if they can show that no dispute exists as to any material fact and they are entitled to judgment as a matter of law. Cassesso v. Commissioner of Corr., 390 Mass. 419, 422 (1983). Either party may satisfy its burden of demonstrating the absence of triable issues by submitting affirmative evidence demonstrating entitlement to relief (or the opposing party’s lack of entitlement), or by demonstrating that the opposing party has no reasonable expectation of proving an essential element of their case. Flesner v. Tech. Comm. Corp., 410 Mass. 805, 809 (1991). If one party establishes the absence of a triable issue, the other party must demonstrate, through admissible evidence, an issue of material fact to defeat summary judgment. Godbout v. Cousens, 396 Mass. 254, 261 (1985).
Braintree is correct that the undisputed facts show that each of the defendants breached their agreements – Wu by vacating the premises and not making good on the rent, and Marzouki
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and Rook for not stepping in and making Wu’s payments to Braintree on Wu’s behalf pursuant to their guaranty.
As to Braintree’s damages, Wu’s claim that there is a material dispute as to the extent of Braintree’s mitigation efforts is meritless. While a landlord is generally required to mitigate damages by taking reasonable steps to find another tenant, Krasne v. Tedeschi & Grasso, 436 Mass. 103, 109 (2002), commercial parties can agree otherwise, and here, the lease did not obligate Braintree to mitigate at all. The Lease says this in two places. In §18.1, the Lease states that “[i]n determining the rental value of the Premises, the rental realized by any reletting, if such reletting is accomplished by Landlord within a reasonable time after the termination of the Lease, shall be deemed prima facie to be the rental value, but if Landlord shall not undertake to relet or having undertaken to relet, has not accomplished reletting, then it will be conclusively presumed that the Minimum Rent and all items of additional rent reserved under this Lease represent the rental value of the Premises for the purposes herein (in which event the Landlord may recover from the Tenant, the full total of all Minimum Rent and all items of additional rent due hereunder, discounted to present value as hereinbefore provided”). Id. (emphasis added). It says it again in §18.2 – “Tenant waives and releases any claim arising out of or related to the payment of percentage of rent by any successor tenant in the Premises, to whom Landlord may relet the Premises, but nothing contained herein shall obligate Landlord to relet if Tenant shall default hereunder.” Id. (emphasis added). Since Wu expressly agreed that Braintree had no obligation to mitigate it damages arising from Wu’s breach, Wu cannot create a material issue about Braintree’s level of mitigation.
In the same vein, the argument advanced by Wu and Rook that under the Lease, the calculation set forth in Braintree’s own Lease means that Braintree is entitled to zero damages is
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nonsensical. While the Lease provides alternative methods of calculating damages, it consistently and clearly entitles Braintree to the full value of the rental payment due from Wu. The parties dispute how one of those methods was to work – the provision in §18.2 which is to be used to calculate the present value of future rent payments in the event Wu did not pay them as required – but the Court concludes that it need not consider this issue at all, as it is irrelevant to this dispute. The mechanism outlined in §18.2 was designed to reduce Braintree’s future expected damages to a present value, which Wu was required to pay immediately, prior to the expiration of the Lease in May, 2016. The undisputed facts show that Wu paid nothing after it vacated the premises, and the Lease terminated in May, 2016, under its terms. At this point, then, there is no need to calculate the present value of expected damages; Braintree’s damages are all historical, they can and should be calculated mathematically.
Since Braintree did not terminate the Lease, the Lease sets as the minimum rent Braintree is to recover each month as the amount Wu agreed to pay. Braintree’s damages can be calculated as a simple subtraction of the minimum rent the Lease required Wu to pay from any amount Braintree actually received, with any surplus going to Braintree, as per the terms of the Lease. In addition, the Lease permits Braintree to recover attorney’s fees and costs under §18.2. Braintree is also entitled to statutory interest.
Wu’s motion for summary judgment – that Braintree violated Chapter 93A by failing to validate its debt as suggested in the November 26, 2014 letter – is meritless. Wu waived any notice requirements in the Lease. See Lease, §18.1 (describing the landlord’s remedies in the event of default, “without grace period, demand or notice (the same being waived by Tenant”)); §18.2 (“Except as otherwise specifically required by this Lease, Tenant waives any and all
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statutory and legal notice requirements”). It thus cannot bring a Chapter 93A claim for Braintree’s failing to follow-up on a notice to which Wu was not entitled.
Marzouki’s claim for summary judgment against Rook for indemnity is denied, and emphatically so. No such claim is valid under the terms of Marzouki’s Guaranty. “The liability of the defendants as guarantors is to be ascertained from the terms of the written contract construed according to the usual rules of interpretation read in connection with the subject matter, the relations of the parties to the transaction, and the well understood usages of business.” Schneider v. Armour & Co., 323 Mass. 28, 30 (1948) (citation omitted). In the guaranty, Marzouki and Rook “jointly and severally, do hereby absolutely and unconditionally guarantee to Landlord, its successors and assigns, the full and prompt payment when due, of all rents, charges and additional sums coming due under said Lease” as well as all attorney’s fees and expenses incurred by Braintree. It added that “[t]his Guaranty shall be an absolute and unconditional guaranty and shall remain in full force and effect as to Guarantors during the demised term of said Lease, any renewal or extension thereof, and thereafter so long as any liability remains due and payable even though the demised term or any renewal or extension thereof shall have expired.” In short, Marzouki and Rook promised they would both stand behind Wu if Wu defaulted. Marzouki cannot escape that responsibility by asserting that Rook undertook to indemnify him, which would violate the guaranty he signed.
Accordingly, Wu, Marzouki and Rook are jointly and severally liable for the total damages incurred by Braintree. See 275 Washington St. Corp. v. Hudson River Int’l, LLC, 465 Mass. 16, 30 (2013) (“[w]hen one guarantees the contract of another, the guarantor is bound by the terms of the contract guaranteed. … [and] [h]is obligations are co-extensive of the principal obligor”) (citation omitted).
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CONCLUSION
For the foregoing reasons, plaintiff’s motion for summary judgment is ALLOWED. Wu’s cross-motion for summary judgment is DENIED. Marzuki’s motion for summary judgment on his cross-claim against Rook is DENIED.
Plaintiff shall submit a calculation of damages, along with evidence of attorney’s fees and statutory interest, within ten days of this Order.
______________________________
Michael D. Ricciuti
Justice of the Superior Court
Date: September 26, 2017 read more

Posted by Stephen Sandberg - November 14, 2017 at 1:04 am

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

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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. 638, 644 (2002), citing Pederson v. Time, Inc., 404 Mass. 14, 17 (1989); Kourouvacilis v. Gen. Motors Corp., 410 Mass. 706, 716 (1991). In reviewing a motion for summary judgment, the Court views the evidence in the light most favorable to the non-moving party and draws all reasonable inferences in his or her favor. Jupin v. Kask, 447 Mass. 141, 143 (2006), citing Coveney v. President & Trs. of the Coll.
3
of the Holy Cross, 388 Mass. 16 (1983); see also Simplex Techs., Inc. v. Liberty Mut. Ins. Co., 429 Mass. 196, 197 (1999).
II. Negligence, Defective Design, and Breach of Warranty Claims (Counts I, II, and III)
While styled as three different theories of liability, Counts I, II, and III alleging negligence, defective design and breach of warranty, respectively, all turn on the same core contention that the speed laces on the Boots were defectively designed and that such defect caused plaintiff Francis’ accident.
To establish a claim for defective design, a plaintiff must show that the manufacturer “failed to exercise reasonable care to eliminate avoidable or foreseeable dangers to the user of the product.” Morrell v. Precise Engineering, Inc., 36 Mass. App. Ct. 935, 936 (1994) (Rule 1:28 Opinion), citing Uloth v. City Tank Corp., 376 Mass. 874, 880-881 (1978). A defective design claim requires proof that the product is not reasonably safe for its intended purposes and for reasonably foreseeable uses, considering the customer’s ordinary expectations about the product. See Back v. Wickes Corp., 375 Mass. 633, 640–641 (1978); see also Haglund v. Philip Morris, Inc., 446 Mass. 741, 748 (2006) (in design defect case, “jury must weigh multiple factors, including ‘the gravity of the danger posed by the challenged design, the likelihood that such danger would occur, the mechanical feasibility of a safer alternative design, the financial cost of an improved design, and the adverse consequences to the product and to the consumer that would result from an alternative design.’”) (citations omitted). Further, “[i]n claims alleging negligence in the design of a product, as with claims of a design defect in breach of the implied warranty of merchantability, the plaintiff must show an available design modification which would reduce the risk without undue cost or interference with the performance of the [product], and the jury must consider whether a safer alternative design was available in deciding whether
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the defendant was negligent for failing to adopt that design. … a reasonable alternative design must be shown before a defendant may be found liable for breach of the implied warranty of merchantability based on a design defect, and [a] defendant cannot be found to have been negligent without having breached the warranty of merchantability.” Evans v. Lorillard Tobacco Co., 465 Mass. 411, 443-444 (2013) (citations, internal punctuation omitted).
In this case, Plaintiffs present no expert testimony on whether the design of the speed laces was defective or whether there was an available appropriate design modification that would have reduced such risk without undue cost or interference with the product’s performance. Plaintiffs contend they do not need an expert; Amer Sports argues that they do. The parties appear to agree, however, that the requirement of expert testimony poses a purely legal question for the Court to resolve. Expert testimony is generally required where an issue the jury must decide “is beyond the common knowledge or understanding of the lay juror.” Commonwealth v. Sands, 424 Mass. 184, 186 (1997). Accordingly, Massachusetts courts have routinely held that expert testimony in design defect cases is required. See, e.g., Enrich v. Windmere Corp., 416 Mass. 83, 87 (1993) (alleged defect in an electric cooling fan required expert testimony); Morrell, 36 Mass. App. Ct. at 936 (determination of proper scaffolding brackets required expert testimony); Wiska v. St. Stanislaus Social Club, Inc., 7 Mass. App. Ct. 813, 821 (1979) (alleged defective design of an automobile’s windshield required expert testimony). It is only in rare cases, where the jurors can simply apply their own lay knowledge to determine liability because the “design defect claimed is so simple or obvious that the need for technical assistance is eliminated,” that such expert testimony is unnecessary. Esturban v. Massachusetts Bay Transp. Auth., 68 Mass. App. Ct. 911, 912 n. 7 (2007); Smith v. Ariens Co., 375 Mass. 620, 625 (1978) (a jury could infer without expert testimony that metal protrusions on the handlebars of a
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snowmobile, which cut the plaintiff’s face when she was propelled forward in a collision, amounted to an obvious design defect); doCanto v. Ametek, 367 Mass. 776, 782 (1975) (no expert testimony needed where plaintiff introduced the defendant’s subsequent remedial measures to the machine that caused the injury and the opinion of the designer of the machine that the product was unsafe).2
While the speed laces in this case are of a simple design, and the facts of the accident are straightforward, the analysis of the alleged design defect in the speed laces is neither simple nor straightforward. The jury would have to consider the biomechanics of a person walking in the Boots, the design and location of the speed laces on the Boots, and the appropriateness of an alternative design, all issues which are not sufficiently obvious that they are within the average juror’s common knowledge. See Esturban, 68 Mass. App. Ct. at 912 (“Without the aid of an expert in the field, jurors would also be left to speculate about whether alternatively engineered designs might have prevented the accident”) (citation omitted). This Court thus finds expert testimony is required in this case to prove a design defect in the Boots, and that speed laces – which haves been widely used in a variety of footwear for a century – do not present a gross or obvious defect.
Moreover, aside from Plaintiffs’ post-accident claim that the Boots posed an obvious trip hazard, Plaintiffs failed to elicit any evidence concerning similar incidents related to the speed lacing design or that Amer was aware of any such risks associated with the speed laces.
2 The rule is similar in professional negligence cases. In them, a plaintiff can prove professional negligence without an expert “[o]nly where professional negligence is so gross or obvious that jurors can rely on their common knowledge to recognize or infer negligence.” Herbert A. Sullivan, Inc. v. Utica Mut. Ins. Co., 439 Mass. 387, 403 (2003). Examples of such “gross or obvious” malpractice in the professional context includes a failure to meet deadlines, lack of compliance with client’s instructions, and unexcused failures to defend a client, particularly when such actions are compounded by misrepresentations and false statements to the client. See, e.g. Global Naps, Inc. v. Awiszus, 457 Mass. 489, 501 (2010); Wagerman v. Adams, 829 F.2d 196, 218-220 (1st Cir. 1987); Glidden v. Terranova, 12 Mass. App. Ct. 597, 598-601 (1981).
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Plaintiffs thus therefore failed to demonstrate that the speed laces on the Boots created a reasonably foreseeable risk of accident. Two other courts have come to similar conclusions. In a case addressing a similar claim involving shoes with a speed lacing design, the United States District Court for the Southern District of Ohio granted summary judgment against the plaintiff’s claim, finding that the plaintiff had “fail[ed] to raise genuine issues of material fact regarding the breach of duty, foreseeability, and causation elements of his negligence claim related to speed-lace hooks. Plaintiff did not demonstrate how a reasonable jury could find that Defendant was on actual or constructive notice of the alleged danger of speed-lace hooks nor did Plaintiff show that an accident from the use of speed-lace hooks was reasonably foreseeable.” Barger v. CSX Transp., Inc., 110 F. Supp. 2d 648, 653-654 (S.D. Ohio 2000). Similarly, the First Circuit affirmed a grant of summary judgment in a similar case to a manufacturer of resin sandals, called “Crocs,” in part because the plaintiff “failed to put forward an expert to accredit” a government report on potential dangers of the product. Geshke v. Crocs, Inc., 740 F.3d 74, 79 (1st Cir. 2014).
Plaintiffs failed to adduce evidence, expert or factual, to support their contention that the Boots posed an obvious design defect or that a reasonable alternative design was available. Amer Sports is thus entitled to judgment as to Counts I, II, and III of the Complaint.
III. Failure to Warn (Count IV)
Count IV of the Complaint alleges Amer Sports had a duty to warn Plaintiff Francis Clairmont that the Boots posed a tripping hazard.
A manufacturer has a duty to warn against a foreseeable use of its product involving a hazard not apparent to the user. Fegan v. Lynn Ladder Co., Inc., 3 Mass. App. Ct. 60, 63-64 (1975). However, a manufacturer has no duty to warn of “risks that were not reasonably foreseeable at the time of sale or could not have been discovered by way of reasonable testing
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prior to marketing the product.” Vassallo v. Baxter Healthcare Corp., 428 Mass. 1, 23 (1998). “A warning is not required unless ‘the person on whom the duty rests has some reason to suppose a warning is needed.’” Killeen v. Harmon Grain Prod., Inc., 11 Mass. App. Ct. 20, 24 (1980) (quoting Carney v. Bereault, 348 Mass. 502, 506 (1965)). Further, “where the danger presented by a given product is obvious, no duty to warn [exists] because a warning will not reduce the likelihood of injury.” Bavuso v. Caterpillar Indus., Inc., 408 Mass. 694, 699 (1990), quoted in Evans, 465 Mass. at 439.
Francis’ argument that the speed laces were obviously defectively designed undermines her failure to warn claim. Even leaving that aside, Francis failed to establish that the speed laces posed a reasonably foreseeable risk or that such risk could have been discovered through additional product testing. Accordingly, based upon the facts before this Court, Amer Sports had no reason to believe a warning was required and is entitled to summary judgment as to Count IV of the Complaint.
IV. Loss of Consortium (Count IX)
Recovery for loss of consortium generally requires proof of a tortious act which caused injury to one’s spouse. Sena v. Commonwealth, 417 Mass. 250, 264 (1994) (citations omitted); Mouradian v. General Elec., 23 Mass. App. Ct. 538, 544 (1987) (citations omitted). As discussed above, as the substantive counts brought by Francis against Amer Sports must be dismissed, the claims of her husband, George, for loss of consortium arising from Francis’ claims must also be dismissed. Short v. Town of Burlington, 11 Mass. App. Ct. 909, 910 (1981) (claim of wife for loss of consortium failed as entirely derivative of failed personal injury claim by husband). Amer Sports is therefore entitled to summary judgment on Count IX.
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ORDER
For the foregoing reasons, Amer Sports Winter & Outdoor Company’s motion for summary judgment on Counts I-IV and IX is ALLOWED.
______________________________
Michael D. Ricciuti
Justice of the Superior Court
DATED: October 30, 2017 read more

Posted by Stephen Sandberg - November 13, 2017 at 9:29 pm

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Moses v. Mitchell, et al. (Lawyers Weekly No. 09-040-17)

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COMMONWEALTH OF MASSACHUSETTS
PLYMOUTH, ss. SUPERIOR COURT
CIVIL ACTION
NO. 16-0823
MOONIE MOSES1
vs.
LISA MITCHELL, REBECCA DONAHUE, JOHN P. FREITAS, CHRISTOPHER ANDERSON, ANDREW DEVALLES, AND BRIAN SCHWENK
MEMORANDUM OF DECISION AND ORDER
ON CROSS-MOTIONS FOR JUDGMENT ON THE PLEADINGS
Plaintiff Moonie Moses, an inmate at Old Colony Correctional Center (“OCCC”), brings this case in the nature of certiorari under G.L. c. 249, §4, against Lisa Mitchell, Rebecca Donahue, John P. Freitas, Christopher Anderson, Andrew DeValles, and Brian Schwenk (“Defendants”), officials and employees of OCCC, alleging violations of Department of Correction regulations governing discipline he received as the result of a disciplinary report (or D-Report).
Before the Court is Moses’ motion for judgment on the pleadings. The Defendants oppose and cross-move for judgment on the pleadings. After hearing, and in consideration of the parties’ memoranda of law and oral arguments, the Court ALLOWS Plaintiff’s motion for judgment on the pleadings and DENIES Defendants’ motion.
FACTS
In D-Report 345786, Correctional Officer John Freitas alleged that on August 24, 2015, Moses insulted and threatened him. Specifically, Freitas alleged that Moses “called this officer ‘a piece of shit and then continued to say if you were in my neighborhood in Dorchester I wish
1 The case file, identifying plaintiff as “Moses Moonie,” reverses Mr. Moses’ first and last names.
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you would take a bullet to the head.’” Moses was charged with four offenses – threatening another with bodily harm, in violation of Disciplinary Code Section 3-04; use of obscene, abusive or insolent language or gesture, in violation of Disciplinary Code Section 3-26; conduct which disrupts the normal operation of the facility of unit, in violation of Disciplinary Code Section 3-27; and violation of any departmental rule or regulation, in violation of Disciplinary Code Section 4-11.
Although the D-Report reads as if Moses’ alleged statement was made directly to Freitas, it is undisputed that it was not. Instead, whatever statement Moses made was heard by Correctional Officer Oana T. Farese, who reported it to Freitas. Indeed, the record of the disciplinary hearing reflects Freitas’ statement that “[s]he [Farese] told me she heard the statements. I don’t recall when she told me. … I asked Moses did he say it. He said it was misinterpreted. I’m going to go with what the CO tells me.” Freitas’ statement makes clear that Moses’ position was that what he said had been misunderstood, which is his position before this Court.
Farese’s testimony, which Freitas credited, was thus critical in deciding whether any offense had occurred and any discipline was appropriate. Moses thus requested, pursuant to the regulations that governed the proceeding, that Farese be produced as a witness at the disciplinary hearing, proffering that she could testify that Freitas “lied about [the] statement.”
The hearing was originally scheduled for September 9, 2015. Moses asked for a continuance to request Farese be produced and to review the videotapes taken in the cell block at the time, proffering that they, too, “will show that the officer lied in his statement and nothing he said was true.” The OCCC continued the hearing at Moses’ request, but then continued it five more times at their behest. The hearing was not held until April 1, 2016, a total delay of six
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months. Two of the extensions reflect that they were occasioned because the reporting officer, Freitas, was unavailable. The other four bear no explanation.
Moses’ request for Farese to be produced was denied by Rebecca Donohue, a Disciplinary Hearing Officer. The record of the disciplinary hearing required that “[i]f any [witness] request is denied, a written explanation of the reasons must be included as part of the record.” All that the record reflected as a “written explanation” of Farese’s exclusion were three words: “irrelevant testimony expected.” No further explanation was provided anywhere in the record as to when, how or why Farese’s testimony was deemed to be irrelevant. Moses was also informed that the video tapes he requested were “unavailable,” again without explanation. At the hearing, neither Farese nor any videotapes were produced.
After the hearing, Donohue issued her decision. In it, she concluded that, based on Freitas’ report and testimony, the evidence “clearly established that inmate Moonie used obscene, insolent language to staff” and that, even considering Moses’ testimony, “it appears more likely than not that the proponent’s contention is true.” However, despite finding that Freitas’ allegations were supported, she dismissed the threatening charge as “not supported by the report.” She thus found Moses guilty of offense 3-26, use of obscene, abusive or insolent language or gesture, and imposed 10 days of disciplinary detention. She dismissed charges 3-27 and 4-11 as duplicative.
Moses appealed, arguing that (1) the hearing was not held within a reasonable time; (2) the testimony did not support a guilty finding; (3) he was denied a witness, Farese, who “would have shown that said words were never said”; and (4) that he was denied video evidence “that would have shown that any conversation with the reporting staff and this inmate did not occur.” On April 29, 2016, the Superintendent Lisa Mitchell denied the appeal.
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DISCUSSION
The Defendants correctly argue that Moses does not allege a cognizable federal due process claim. “An inmate is entitled to the protection of procedural due process under the Federal and State Constitutions only if there is an existing liberty or property interest at stake. Sandin v. Conner, 515 U.S. 472, 484 (1995) … Under the Fourteenth Amendment, a liberty interest is ‘generally limited to freedom from restraint which . . . imposes atypical and significant hardship on an inmate in relation to the ordinary incidents of prison life.’ Sandin v. Conner, 515 U.S. at 484. … [S]anctions [such as thirty days in isolation, loss of visitation privileges for one year, and transfer to a higher security prison] did not create a liberty interest and, thus, the defendant was not deprived of the protections of due process to which he was entitled under both the Federal and State Constitutions.” Drayton v. Commissioner of Correction, 52 Mass. App. Ct. 135, 138 (2001).
That federal liberty interests are not at stake does not end the matter, however. Sandin recognized that inmates like Moses “may invoke the First and Eighth Amendments and the Equal Protection Clause of the Fourteenth Amendment where appropriate, and may draw upon internal prison grievance procedures and state judicial review where available.” Sandin, 515 U.S. at 487-488 n.11. In this case, Moses properly invoked judicial review in the nature of certiorari because of the alleged failure of the Defendants to follow Department of Correction regulations. See Ford v. Commissioner of Correction, 27 Mass. App. Ct. 1127, 1129 (1989). “’The purpose of the certiorari procedure is to provide a remedy, where none would otherwise exist, if necessary to avoid manifest injustice,’ or, as otherwise stated, to correct substantial errors of law on the record that adversely affect material rights. We do not believe that it was the intention of the Supreme Court in Sandin to divest an inmate of the ability to challenge the use of alleged improper
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procedures in the conduct of a disciplinary proceeding because the sanctions did not implicate a liberty interest. To permit this would allow the department carte blanche to conduct a disciplinary hearing in any manner it saw fit as long as the sanction imposed was minor or did not implicate a liberty interest.” Drayton, 52 Mass. App. Ct. at 140 (citation omitted).
Accordingly, in a certiorari action such as this, an inmate may challenge the validity of the disciplinary proceeding to determine whether there is “substantial evidence” in the record to support the disciplinary action imposed. See Cepulonis v. Commissioner of Correction, 15 Mass. App. Ct. 292, 295 (1983). Disciplinary findings must be supported by a preponderance of the evidence. 103 CMR 430.16(1) (2017). Judicial review of such findings is not de novo. Hill v. Superintendent, Massachusetts Correctional Institution, 392 Mass. 198, 202 (1984), reversed on other grounds, 472 U.S. 445 (1985). Instead, the court may “correct only a substantial error of law, evidenced by the record, which adversely affects a material right of the plaintiff,” Sheriff of Plymouth County v. Plymouth County Personnel Bd., 440 Mass. 708, 710 (2004) (citation omitted), or a finding that is not supported by substantial evidence in the record. Beryl v. Superintendent, Souza-Baranowski Corr. Cir., 55 Mass. App. Ct. 906, 907 (2002). “Substantial evidence is evidence that ‘a reasonable mind might accept as adequate to support a conclusion … taking into account whatever in the record fairly detracts from the weight of the evidence.’” Jordan v. Superintendent, 53 Mass. App. Ct. 584, 587 (2002), quoting Cepulonis, 15 Mass. App. Ct. at 296. The court may not displace the hearing officer’s “exclusive function to weigh the credibility of the witnesses and to resolve factual disputes” in the testimony. Jordan, 53 Mass. App. Ct. at 588. However, while “great deference” is owed to the hearing officer’s decision, the court need not defer to it “where the evidence is so limited and problematic” that it cannot support the decision. Jordan, 53 Mass. App. Ct. at 589-90.
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In this case, the Hearing Officer made a substantial error of law and her decision was not supported by substantial evidence in the record. Moses had a right under the applicable regulations to call witnesses unless doing so would be irrelevant, cumulative, repetitive, or hazardous. See 103 CMR 430.14(4) (2017). Correctional Officer Farese was the sole witness who heard the statement attributed to Moses and on which Freitas relied. Yet the Hearing Officer inexplicably denied Moses request to call this critical witness by baldy stating that her testimony would be irrelevant. Nothing in the record supports the conclusion that this was the case. While prison officials have discretion to keep the disciplinary hearing within reasonable limits consistent with the regulations, “there must be some support in the administrative record to justify a decision not to call witnesses in order to ensure that the hearing is not a charade.” Real v. Superintendent, Massachusetts Correctional Institution, Walpole, 390 Mass. 399, 404-07 (1983), vacated, Ponte v. Real, 471 U.S. 491 (1985), on remand, 396 Mass. 1001 (1985). Here there is no such support, and the Court rejects the claim that a three-word notation, “irrelevant testimony expected,” suffices, as the Defendants argue.2
In addition to its being unsupported by the record, the Hearing Officer’s conclusion that Farese’s testimony would be irrelevant is illogical. Indeed, the record shows that Farese was the only witness who had any relevant testimony at all; Freitas’ testimony was entirely derivative of what she allegedly told him, and Freitas acknowledged that Moses contested the interpretation of what he allegedly said. The Court thus rejects the Defendants’ argument that they had no obligation to turn over exculpatory evidence, a claim which misses the point. Moses did not
2 The Defendants accorded themselves an overly-long six-month delay in deciding this case, good cause for which was not adequately justified in writing, as required under the regulations. See 103 CMR 430.23 (2017) (“The procedural time limits set forth in 103 CMR 430.00 are directory and may be waived by the Superintendent, Commissioner or their designees for good cause and in writing”). Even leaving this failure aside, the delay shows that the Defendants had more than adequate time to provide appropriate support in the record to justify the decision to exclude Farese’s testimony.
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request that the Defendants turn over “exculpatory” evidence. Instead, he simply requested, pursuant to the regulations, that a specific witness be produced. The Defendants’ argument about the disclosure of exculpatory evidence strongly suggests that Farese would have offered testimony in support of Moses’ claims, precisely why her testimony was relevant and hence not excludable as irrelevant under 103 CMR 430.14(4).3
During the argument on this motion, the defendants’ attorney provided a plausible explanation for how Farese’s testimony could have been found irrelevant. But she could provide no explanation in the record for how it was found to be irrelevant. This Court concludes that excluding Farese as a witness constituted a substantial error of law and concludes that there was no substantial evidence to support the disciplinary decision in this case.
ORDER
For the reasons detailed above, the defendants’ motion for judgment on the pleadings is DENIED and the plaintiff’s motion for judgment on the pleading is ALLOWED. This Court ORDERS that the guilty finding entered against Moses be dismissed and removed from Moses’ prison record.
SO ORDERED.
MICHAEL D. RICCIUTI
Justice of the Superior Court
Date: October 23, 2017
3 The Court also concludes that the Defendants did not adequately explain why there was no video available of the encounter; it is unclear whether that was because no video was taken or that the Defendants chose not to produce it because it was deemed to be excludable under the regulation. read more

Posted by Stephen Sandberg - November 13, 2017 at 5:54 pm

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Care and Protection of a Minor (Lawyers Weekly No. 10-182-17)

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-12403

CARE AND PROTECTION OF A MINOR.

November 10, 2017.

Supreme Judicial Court, Superintendence of inferior courts.  Practice, Civil, Notice of appeal.  Notice, Timeliness.

The father of a child who is the subject of a care and protection proceeding in the Norfolk County Division of the Juvenile Court Department filed a petition pursuant to G. L. c. 211, § 3, with a single justice of this court seeking relief pursuant to the court’s general superintendence power.  The father is an attorney who is representing himself.  The record of material he has put before us is confusing, to say the least.  It appears that the child has been removed from his parents’ custody and that the father contests the removal.  In his G. L. c. 211, § 3, petition he sought, among other things, a jury trial in the care and protection proceeding.  He also claimed that the Department of Children and Families has violated his due process rights and that “non-party participants” in the care and protection proceeding should have been sequestered during certain motion hearings in the Juvenile Court. read more

Posted by Stephen Sandberg - November 10, 2017 at 9:56 pm

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