Posts tagged "Lawyers"

In the Matter of Moran, Robert C. (Lawyers Weekly No. 10-068-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-12356   IN THE MATTER OF ROBERT C. MORAN.       April 20, 2018.     Attorney at Law, Disciplinary proceeding, Suspension, Deceit, Drafting of will.     The respondent, Robert C. Moran, appeals from an order of a single justice of this court, acting on an information filed by the Board of Bar Overseers (board), suspending him from the practice of law for nine months.  We vacate the order and remand the case for the entry of an order suspending the respondent from the practice of law for fifteen months.[1]   Background.  Bar counsel filed an amended five-count petition for discipline with the board alleging multiple acts of misconduct in connection with the respondent’s handling of the affairs of two elderly clients, both of whom are now deceased.  Two counts alleged that the respondent charged excessive fees;[2] that he failed to inform his clients of fees for services rendered and fee withdrawals;[3] that he held the clients’ funds in nontrust accounts;[4] and that he drafted testamentary instruments for both clients that included substantial testamentary gifts to himself.[5]  Two other counts concerned the respondent’s conduct as executor for the same clients’ estates.  They alleged that the respondent failed to render diligent and competent services;[6] that he charged and collected excessive fees;[7] that he failed to hold estate funds in segregated interest-bearing accounts;[8] that he negotiated and withdrew estate funds before his appointment as executor;[9] and that he intentionally misrepresented, under oath, the amount of estate assets in a probate court filing for one estate.[10]  The fifth count charged misconduct in connection with trust accounts and trust funds.[11]  The respondent answered and asserted certain facts in mitigation.  See S.J.C. Rule 4:01, § 8 (3), as appearing in 453 Mass. 1310 (2009) (“[a]verments in the petition are admitted when not denied in the answer”).   A hearing committee of the board conducted an evidentiary hearing and determined that bar counsel had proved, with limited exceptions, the petition’s allegations.  A majority of the committee recommended that the respondent be publicly reprimanded; a dissenting member found additional facts supporting violation of Mass. R. Prof. C. 1.8 (c), 426 Mass. 1338 (1998) (substantial testamentary gifts), and recommended a greater sanction.  Both the respondent and bar counsel appealed to the board.  The board adopted the dissenting hearing committee member’s factual findings concerning the additional misconduct, and the hearing […]

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Posted by Massachusetts Legal Resources - April 20, 2018 at 2:47 pm

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Carey, et al. v. Commissioner of Correction (Lawyers Weekly No. 10-067-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-12369   MICHAEL CAREY & others[1]  vs.  COMMISSIONER OF CORRECTION.       Suffolk.     January 8, 2018. – April 19, 2018.   Present:  Gants, C.J., Lowy, Budd, Cypher, & Kafker, JJ.     Commissioner of Correction.  Regulation.  Administrative Law, Agency’s interpretation of regulation, Administrative Procedure Act.  State Administrative Procedure Act.       Civil action commenced in the Superior Court Department on January 2, 2014.   The case was heard by Joseph F. Leighton, Jr., J., on motions for summary judgment.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     Leonard M. Singer for the plaintiffs. William D. Saltzman for the defendant.     BUDD, J.  In 2013, the Department of Correction (department) announced that visitors to correctional facilities would be subject to search by drug-detecting dogs.  The plaintiffs, who are visitors to correctional facilities who are not attorneys, allege that this canine search policy (policy) violated the department’s existing regulations and that the department failed to follow requirements of the Administrative Procedure Act (APA), G. L. c. 30A, §§ 1 et seq., in implementing this new policy.  The defendant Commissioner of Correction (commissioner) contends that the policy is consistent with the department’s existing regulations and is exempt from the APA. We conclude that although the policy is not inconsistent with the department’s existing regulations, it is not exempt from the APA.  Given the policy’s substantial impact on institutional security, however, entry of judgment shall be stayed for 180 days to permit the department to take action consistent with this opinion, during which time the department may continue to enforce the policy. Background.  In early 2013, the department announced that it would begin subjecting prison visitors to search by drug-detecting dogs.[2]  The plaintiffs commenced this action to prevent the department from implementing the new policy.  The plaintiffs sought a judgment declaring that the policy was not authorized by the department’s existing regulations, as well as a preliminary injunction to enjoin the department from implementing the policy without its being promulgated pursuant to the APA.[3]  A judge in the Superior Court denied the plaintiffs’ motion for a preliminary injunction, concluding that the wording of the regulation governing visits by members of the general public was broad enough to allow for canine searches. The policy was thereafter implemented.  The dogs performing the searches are not aggressive and […]

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Posted by Massachusetts Legal Resources - April 19, 2018 at 5:18 pm

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Commonwealth v. Tahlil (Lawyers Weekly No. 10-062-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-12338   COMMONWEALTH  vs.  ADNAN TAHLIL.     April 18, 2018.     Practice, Criminal, Discovery, Interlocutory appeal.  Evidence, Videotape.  Constitutional Law, Self-incrimination.  Attorney at Law, Use of confidence or secret.     The Commonwealth appeals from a judgment of a single justice of the county court denying its petition for relief pursuant to G. L. c. 211, § 3, from an interlocutory ruling of the Boston Municipal Court Department.  We reverse.   The defendant, Adnan Tahlil, has been charged in the Boston Municipal Court Department with larceny from a person, in violation of G. L. c. 266, § 30; assault and battery, in violation of G. L. c. 265, § 13A; assault and battery by means of a dangerous weapon, in violation of G. L. c. 265, § 15A (b); and receiving stolen property, in violation of G. L. c. 266, § 60.  The charges stem from an incident that occurred on May 18, 2013, during which several individuals assaulted and robbed the victim.  Shortly thereafter, someone used the victim’s Citizens’ Bank card at a Tedeschi market.  The police obtained a digital video disc (DVD) containing surveillance video from the market.  The victim viewed the DVD at the police station and identified the defendant and two other individuals as three of the four assailants.   During the course of discovery, the Commonwealth provided the defendant with a copy of the DVD.  It appears that defense counsel was unable to open and view the DVD and ultimately viewed the video footage at the district attorney’s office.  As the trial date approached, the Commonwealth was unable to locate its own copy of the DVD.  On the day before the scheduled trial, the Commonwealth moved for an order requiring the defendant to return to the Commonwealth a copy of the DVD for the Commonwealth’s use at trial.[1]  The trial judge denied the motion.  The Commonwealth then filed its G. L. c. 211, § 3, petition, which a single justice denied without a hearing.   In its appeal to this court, the Commonwealth argues that the trial judge’s decision to deny its motion was clearly erroneous.  We agree.  No reasonable basis exists for the defendant’s refusal to return to the Commonwealth a copy of the very thing that the Commonwealth gave to him.  The defendant does not deny that he has the item.  His main argument is that requiring him to provide the Commonwealth with a copy of the DVD would violate […]

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Posted by Massachusetts Legal Resources - April 19, 2018 at 6:34 am

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Commonwealth v. Escobar (Lawyers Weekly No. 10-063-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-12430   COMMONWEALTH  vs.  JUSTINO ESCOBAR.     April 18, 2018.     Controlled Substances.  Constitutional Law, Plea, Conduct of government agents.  Due Process of Law, Plea, Disclosure of evidence.  Supreme Judicial Court, Superintendence of inferior courts.  Practice, Criminal, Plea, Conduct of government agents, Disclosure of evidence, New trial.  Evidence, Certificate of drug analysis, Disclosure of evidence.     The defendant, Justino Escobar, pleaded guilty to cocaine trafficking in 2009 and was sentenced to a term of from eight to twelve years in State prison.  In July, 2015, he filed a motion for a new trial and a related motion to conduct postconviction discovery, seeking to have his conviction vacated pursuant to Commonwealth v. Ware, 471 Mass. 85 (2015), and Commonwealth v. Scott, 467 Mass. 336 (2014).  In his motions, Escobar argued that the Commonwealth had not fully investigated misconduct at the William A. Hinton State Laboratory Institute (Hinton drug lab).[1]  In his view, the Inspector General’s investigation of the Hinton lab was incomplete because it did not inquire into whether any chemist other than Annie Dookhan had acted improperly.[2]   Escobar subsequently filed a motion to vacate his conviction and for the dismissal of the underlying charge as well as a motion for a so-called “Cotto order” pursuant to this court’s decision in Commonwealth v. Cotto, 471 Mass. 97 (2015).  After a hearing, in July, 2017, a judge in the Superior Court denied without prejudice the motions to vacate and for a Cotto order; allowed in part the motion for postconviction discovery, ordering limited discovery; and declined to rule on the motion for a new trial pending completion of that limited discovery.[3]  Escobar appealed.  We allowed his application for direct appellate review, and affirm.   On the basis of the record that was before her, the judge’s rulings were correct.  As she noted, Escobar’s core argument is that the chemist who analyzed the samples in his case, Della Saunders, had “testing productivity numbers” comparable to those of Dookhan.  In Escobar’s view, this raises the question whether Saunders, like Dookhan, also engaged in misconduct.  In light of his arguments, the judge determined that some limited postconviction discovery was warranted, and she thus allowed, in part, Escobar’s motion on this point.[4]  She also concluded, reasonably, that she could not fairly rule on Escobar’s motion for a new trial until that limited discovery […]

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Posted by Massachusetts Legal Resources - April 19, 2018 at 3:00 am

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A.F. v. D.F. (Lawyers Weekly No. 10-064-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-12425   A.F.  vs.  D.F.     April 18, 2018.     Abuse Prevention.  Harassment Prevention.  Supreme Judicial Court, Superintendence of inferior courts.     The petitioner appeals from a judgment of a single justice of this court denying his petition pursuant to G. L. c. 211, § 3.  We affirm.   The respondent sought an abuse prevention order against the petitioner pursuant to G. L. c. 209A.  After a hearing on the extension of the temporary ex parte order, a judge in the District Court declined to extend the G. L. c. 209A order and instead issued a one-year harassment prevention order pursuant to G. L. c. 258E.  The judge subsequently denied the petitioner’s motion to reconsider, and the petitioner then filed his G. L. c. 211, § 3, petition in the county court.  The single justice denied the petition without a hearing.   The petitioner has now filed a memorandum and appendix pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), but he is not challenging an interlocutory ruling of the trial court.  Regardless of whether rule 2:21 applies, however, it is clear that the petitioner is not entitled to review pursuant to G. L. c. 211, § 3, because he has an adequate alternative remedy.  See O’Brien v. Borowski, 461 Mass. 415, 417-418 (2012) (appeals from G. L. c. 258E harassment prevention orders to be filed in Appeals Court).  The petitioner argues that the normal appellate process would be inadequate because of the time it would take to pursue the appeal and receive a favorable outcome.  The remedy for this concern is to seek expedited review in the Appeals Court, a stay of the underlying order pending appeal, or both, not through a G. L. c. 211, § 3, petition in this court.   The single justice did not err or abuse his discretion in denying relief under G. L. c. 211, § 3.   Judgment affirmed.     The case was submitted on the papers filed, accompanied by a memorandum of law. A.F., pro se.   Full-text Opinions

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Posted by Massachusetts Legal Resources - April 18, 2018 at 11:25 pm

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Vilbon v. Board of Registration in Nursing (Lawyers Weekly No. 10-065-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-12359   CARLINE VILBON  vs.  BOARD OF REGISTRATION IN NURSING.     April 18, 2018.     Board of Registration in Nursing.  Nurse.  License.  Moot Question.  Supreme Judicial Court, Superintendence of inferior courts.     Carline Vilbon appeals from a judgment of the county court dismissing as moot her appeal under G. L. c. 112, § 64, from an order of the Board of Registration in Nursing (board) indefinitely suspending her nursing license.  The grounds for the suspension were that Vilbon had not satisfied the educational requirements for licensure in Massachusetts and that she had engaged in deceptive conduct to obtain a license.  While the matter was pending before the single justice, the board reconsidered and withdrew its finding that Vilbon had engaged in deceptive conduct, acknowledging that it had erred in making this finding.  In addition, Vilbon remedied the deficiencies in her education.  The board therefore reinstated her license.  Vilbon now argues that, despite the reinstatement of her license, she has suffered further harm for which the board should compensate her and that sanctions should be imposed on the executive director of the board.  However, under the “plain and unambiguous language of G. L. c. 112, § 64,” Hoffer v. Board of Reg. in Medicine, 461 Mass. 451, 456 (2012), our authority is limited to “revising or reversing the decision of the board” suspending her license.  The statute does not provide for any further relief.  As Vilbon has received all the relief that is available under G. L. c. 112, § 64, the single justice properly dismissed the matter as moot.  See Padmanabhan v. Centers for Medicare & Medicaid Servs., 476 Mass. 1018, 1019 (2017), citing Rasten v. Northeastern Univ., 432 Mass. 1003, 1003 (2000).   Judgment affirmed.     Carline Vilbon, pro se. Carrie Benedon, Assistant Attorney General, for the defendant.   Full-text Opinions

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Posted by Massachusetts Legal Resources - April 18, 2018 at 7:50 pm

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Myrick v. Superior Court Department (Lawyers Weekly No. 10-066-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-12190   KYL V. MYRICK  vs.  SUPERIOR COURT DEPARTMENT.[1]     April 18, 2018.     Mandamus.  Practice, Civil, Action in nature of mandamus.  Supreme Judicial Court, Superintendence of inferior courts.     Kyl V. Myrick appeals from a judgment of a single justice of this court denying his petition for relief in the nature of mandamus.  Myrick’s petition sought the reversal of a Superior Court judgment dismissing a civil complaint that he had filed in that court.  That complaint concerned the denial of his applications for criminal complaints in the Boston Municipal Court Department.  In his petition to the single justice, Myrick also challenged the Superior Court judge’s declining to recuse himself from the matter.  The single justice correctly denied both the petition and Myrick’s subsequent request for reconsideration.   “It would be hard to find any principle more fully established in our practice than the principle that neither mandamus nor certiorari is to be used as a substitute for ordinary appellate procedure or used at any time when there is another adequate remedy.”  Rines v. Justices of the Superior Court, 330 Mass. 368, 371 (1953).  See, e.g., Ardon v. Committee for Pub. Counsel Servs., 464 Mass. 1001 (2012).  There was, as the single justice recognized, a plainly adequate alternative remedy for Myrick to pursue after his complaint in the Superior Court was dismissed, namely, an appeal to the Appeals Court from the judgment of the Superior Court dismissing the complaint.  See Mass. R. A. P. 4 (a), as amended, 464 Mass. 1601 (2013).  As for Myrick’s claim that the Superior Court judge should have recused himself, that claim also could have been raised on appeal to the Appeals Court.  See Bloise v. Bloise, 437 Mass. 1010, 1010 (2002), citing Doten v. Plymouth Div. of the Probate & Family Court Dep’t, 395 Mass. 1001, 1001 (1985).  See also Ewing v. Commonwealth, 451 Mass. 1005, 1006 (2008).   Judgment affirmed.     Kyl V. Myrick, pro se. Eric A. Haskell, Assistant Attorney General, for the defendant.        [1] The real party in interest, the defendant named in the complaint filed in the Superior Court Department, was not made a party to these proceedings.   Full-text Opinions

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Posted by Massachusetts Legal Resources - April 18, 2018 at 4:16 pm

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Ramirez v. Commonwealth (Lawyers Weekly No. 10-060-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-12340   JORGE RAMIREZ  vs.  COMMONWEALTH.       Suffolk.     December 5, 2017. – April 17, 2018.   Present:  Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.     Firearms.  Constitutional Law, Right to bear arms, Severability.  Statute, Validity, Severability.       Civil action commenced in the Supreme Judicial Court for the county of Suffolk on March 21, 2017.   The case was reported by Hines, J.     Benjamin H. Keehn, Committee for Public Counsel Services, for Jorge Ramirez. Kathryn Leary, Assistant District Attorney, for the Commonwealth.     GANTS, C.J.  We once again confront the question whether the absolute criminal prohibition of civilian possession of a stun gun, in violation of G. L. c. 140, § 131J, violates the Second Amendment to the United States Constitution, which is applied to the States by its incorporation into the Fourteenth Amendment.  In Commonwealth v. Caetano, 470 Mass. 774 (2015) (Caetano I), we held that § 131J did not violate the Second Amendment right to bear arms, as interpreted by District of Columbia v. Heller, 554 U.S. 570 (2008).  However, the United States Supreme Court, in a brief per curiam opinion, concluded that each of the three explanations we offered to support this holding were inconsistent with propositions stated in Heller, and therefore vacated the judgment and remanded the case for further proceedings.  See Caetano v. Massachusetts, 136 S. Ct. 1027 (2016) (Caetano II).  That case was later dismissed as moot after it was “resolved . . . to [the parties’] mutual satisfaction,” so we did not there revisit the question of § 131J’s constitutionality.  But we must revisit it in this case, where the defendant was charged in a criminal complaint with possession of a stun gun, in violation of § 131J, among other crimes, and moved unsuccessfully to dismiss that count of the complaint, arguing that § 131J unconstitutionally infringes on his Second Amendment rights. We conclude that the absolute prohibition against civilian possession of stun guns under § 131J is in violation of the Second Amendment, and we order that the count of the complaint charging the defendant with such possession be dismissed with prejudice. Background.  We summarize the agreed-upon facts relevant to this appeal.  On November 5, 2015, at approximately 2:15 A.M., Officer Sean Matthews of the Revere police department was on patrol when he observed a vehicle with a broken taillight that was […]

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Posted by Massachusetts Legal Resources - April 17, 2018 at 10:23 pm

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Commonwealth v. Richardson (Lawyers Weekly No. 10-061-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-12375   COMMONWEALTH  vs.  JOSHUA A. RICHARDSON.       Middlesex.     December 7, 2017. – April 17, 2018.   Present:  Gants, C.J., Gaziano, Lowy, Cypher, & Kafker, JJ.     Marijuana.  Medicine.  Controlled Substances.  Search and Seizure, Affidavit, Probable cause, Warrant.  Probable Cause.  License. Jury and Jurors.  Evidence, Expert opinion, Intent.  Intent.  Practice, Criminal, Affidavit, Motion to suppress, Warrant, Instructions to jury.       Complaint received and sworn to in the Framingham Division of the District Court Department on September 9, 2013.   A motion to dismiss was heard by Douglas W. Stoddart, J.; a pretrial motion to suppress evidence was heard by Martine Carroll, J.; and the case was tried before David W. Cunis, J.   The Supreme Judicial Court granted an application for direct appellate review.     Allison Callahan for the defendant. Elizabeth J. May, Assistant District Attorney, for the Commonwealth.     KAFKER, J.  The defendant, a medical marijuana patient, was arrested when police discovered twenty-two marijuana plants growing in his basement.  After a jury trial, he was convicted of unlawful cultivation of marijuana and possession with intent to distribute marijuana.  On appeal, he argues that (1) the criminal complaint and the search warrant lacked probable cause; (2) the jury instructions were in error; (3) the evidence was insufficient to find the defendant guilty beyond a reasonable doubt; and (4) the medical marijuana law’s sixty-day supply limit is unconstitutionally vague as applied.  For the reasons stated below, we reverse in part and affirm in part. Background.  The defendant, Joshua A. Richardson, was an unemployed tattoo artist living in Framingham at the time of his arrest.  On July 2, 2013, he obtained a written certification from a qualifying physician that approved his use of medical marijuana to treat a number of medical conditions.  The certification constituted a valid hardship cultivation registration permitting the defendant to grow up to ten ounces of marijuana every sixty days for his personal, medical use.[1]  Approximately two months later, on September 7, 2013, the defendant telephoned 911 to report a home invasion at his residence.  The defendant told the 911 operator that three men had entered his home and “started beating the hell out of [him].” Officer Wayne Jordan reported to the defendant’s residence within a few minutes of receiving the dispatch.  The defendant told Wayne that three men had broken into […]

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Posted by Massachusetts Legal Resources - April 17, 2018 at 6:48 pm

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O’Donoghue, et al. v. Commonwealth, et al. (Lawyers Weekly No. 11-046-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   16-P-72                                         Appeals Court   KEN O’DONOGHUE, trustee,[1] & others[2]  vs.  COMMONWEALTH & others.[3]     No. 16-P-72.   Suffolk.     December 5, 2017. – April 17, 2018.   Present:  Vuono, Sullivan, & Massing, JJ.     Res Judicata.  Judgment, Preclusive effect.  Seashore.  Real Property, Littoral property.  Words, “Beach.”     Civil action commenced in the Land Court Department on July 22, 1998.   The case was heard by Harry M. Grossman, J.   Brian Jay Rogal for the plaintiffs. Robert W. Galvin for town of Marshfield. Kendra Kinscherf, Assistant Attorney General, for the Commonwealth.     SULLIVAN, J.  The plaintiffs commenced this action against the Commonwealth in the Land Court to quiet title to certain “beach lots” in the Rexhame Terrace section of the town of Marshfield (town) and to remove a cloud on title that resulted from the decisions in Thomas v. Marshfield, 10 Pick. 364 (1830) (Thomas I), and Thomas v. Marshfield, 13 Pick. 240 (1832) (Thomas II).  The plaintiffs also sought damages for trespass against the individual defendants.  The town was allowed to intervene as a defendant.  In its answer the town asserted, as an affirmative defense, title to the beach lots set aside for use by all of the town’s inhabitants as a common area, and further stated that the plaintiffs have only a right of “commonage” along with other inhabitants of the town.  The trial judge bifurcated the “public” portions of the case — the claims among the plaintiffs, the Commonwealth, and the town — and, following a trial, concluded that the plaintiffs had not met their burden of demonstrating title sufficient to quiet title or remove the cloud of title due to the decisions in Thomas I and Thomas II.  The judge further concluded that the town has superior title in most if not all portions of the beach lots.[4]  The parties have filed cross appeals.  Substantially for the reasons stated by the judge in his careful, detailed, and well-reasoned decision, we affirm. Background.  The judge made detailed factual findings, which for the most part are undisputed.  We repeat only those necessary to give context to our discussion, noting where material disputes arise.  The judge’s factual findings will not be overturned unless clearly erroneous.  See Whiteveld v. Haverhill, 12 Mass. App. Ct. 876, 876 (1981); Feldman v. Souza, 27 Mass. App. 1142, 1143 (1989). Marshfield Neck […]

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Posted by Massachusetts Legal Resources - April 17, 2018 at 3:13 pm

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