Mullins v. Corcoran, et al. (Lawyers Weekly No. 09-032-18)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1484CV02302-BLS2 ____________________ JOSEPH R. MULLINS v. JOSEPH E. CORCORAN and GARY A. JENNISON ____________________ MEMORANDUM AND ORDER ON PLAINTIFF’S MOTION TO BIFURCATE AND DEFENDANTS’ MOTIONS IN LIMINE This lawsuit concerns failed attempts to develop certain property in Somerville, Massachusetts. The parties jointly own the property through a closely-held company known as Cobble Hill Center LLC. They agreed to develop it together in a 1987 contract that divided up many of their other real estate interests. Joseph Mullins has asserted claims against Joseph Corcoran and Gary Jennison for breach of contract and breach of fiduciary duty. Corcoran and Jennison, in turn, assert similar counterclaims against Mullins for breach of contract and breach of fiduciary duty. The case is scheduled to be tried before a jury starting on May 14, 2018. The Court rules as follows on three motions in limine that were filed by Corcoran and Jennison and a motion to bifurcate trial into separate liability and damages phases that was filed by Mullins. 1. Measure of Damages. The Court will ALLOW the request by Corcoran and Jennison within Motion in Limine No. 1 for leave to present evidence of alleged damages calculated as the future profits Defendants claim to have lost as a result of Mullins’ alleged breaches of contract and fiduciary duty. The general measure of damages is the same for breach of contract as for breach of fiduciary duty; under either theory, a prevailing claimant is entitled to be put in the position they would have been in if there had been no breach of duty. See, e.g., Mailman’s Steam Carpet Cleaning Corp. v. Lizotte, 415 Mass. 865, 869 (1993) (breach of contract); Berish v. Bornstein, 437 Mass. 242, 270 (2002) (breach of fiduciary duty) In an appropriate case, lost profits can be the appropriate measure of damages either for breach of contract or breach of fiduciary duty, assuming that the claimant – 2 – can meet its burden of proving that the alleged breach proximately caused a future loss of profits. See, e.g., Situation Management Systems, Inc. v. Malouf, Inc., 430 Mass. 875, 880 (2000) (breach of contract); O’Brien v. Pearson, 449 Mass. 377, 387 (2007) (breach of fiduciary duty). Defendants’ proposed methodology for calculating lost profits is permissible in concept. They intend to present evidence calculating their counterclaim damages as the future market value of the building they had wished to contract, minus the development costs that would have been incurred to construct the building, minus the residual value of the property in its current state. If the jury were to credit Defendants’ evidence, that would be a permissible way to value damages. See, e.g., Neal v. Jefferson, 212 […]
America’s Test Kitchen Inc. v. Kimball, et al. (Lawyers Weekly No. 09-033-18)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1684CV03325-BLS2 ____________________ AMERICA’S TEST KITCHEN INC., as the Sole General Partner of America’s Test Kitchen Limited Partnership v. CHRISTOPHER KIMBALL and Others1 ____________________ MEMORANDUM AND ORDER ON CROSS-MOTIONS TO COMPEL PRODUCTION OF DOCUMENTS Christopher Kimball, Melissa Baldino, Christine Gordon, and Deborah Broide used to work for America’s Test Kitchen on a television cooking show and on related programming and publications distributed through various media. This lawsuit concerns and arises from their development of a competing business. ATK brought suit first. Kimball and CPK Media, LLC, asserted counterclaims. The Court will refer to America’s Test Kitchen, Inc., and America’s Test Kitchen Limited Partnership as the “ATK Parties” and to Defendants as the “CPK Media Parties.” The parties have filed cross-motions to compel the production of documents withheld under a claim of privilege or litigation work product. The party asserting that a particular set of documents is protected from disclosure by the attorney-client privilege or the work product doctrine has the burden of proving that contention. See Commissioner of Revenue v. Comcast, 453 Mass. 293, 304 & 315 (2009); Hanover Ins. Co. v. Rapo & Jepsen Ins. Services, Inc., 449 Mass. 609, 619-620 (2007). The Court will allow the ATK Parties’ motion to the extent that it seeks production of any disputed communications with Matthew Sutton or those disputed communications with William Thorndike that are not protected by the work product doctrine. It will deny the ATK Parties’ motion to the extent that it seeks production of protected work product in communications with Thorndike, or the production of any disputed communications with Melissa Baldino or Thomas Hagopian. And it will deny the CPK Media Parties’ motion in its entirety, as to communications with ATK’s public relations consultants, with its lawyers, or among its board members. 1 CPK Media, LLC; Melissa Baldino; Christine Gordon; Deborah Broide; CPK Holdco, LLC; and William Thorndike. – 2 – 1. The ATK Parties’ Motion to Compel. 1.1. Matthew Sutton. The CPK Media Parties have withheld communications with Mr. Sutton regarding legal advice sought by or provided to CPK Media LLC on the ground that those communications are protected by the attorney-client privilege. They argue that (i) this privilege protects confidential communications that share legal advice with a client’s employee who is needed to understand or implement that advice, or that concern information known to the employee that is needed to inform or formulate requests for legal advice; (ii) the same is true regarding similar communications with someone who is the functional equivalent of an employee; (iii) Sutton was the functional equivalent of an employee of CPK Media LLC and was involved in seeking and making sense of legal advice for […]
Cournoyer v. Department of State Police, et al. (Lawyers Weekly No. 11-037-18)
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 17-P-579 Appeals Court ARTHUR COURNOYER vs. DEPARTMENT OF STATE POLICE & another.[1] No. 17-P-579. Middlesex. January 8, 2018. – April 2, 2018. Present: Blake, Neyman, & Ditkoff, JJ. State Police. Retirement. Police, Retirement, Training program, Authority of police chief. Public Employment, Police, Retirement, Reinstatement of personnel. Civil action commenced in the Superior Court Department on March 14, 2016. A motion to dismiss was heard by Bruce R. Henry, J. Scott W. Lang (Jennifer Davis also present) for the plaintiff. Samuel M. Furgang, Assistant Attorney General, for the defendants. DITKOFF, J. The plaintiff, Arthur Cournoyer, appeals from a Superior Court judgment dismissing his claims for declaratory judgment and specific performance against the defendants. The plaintiff argues that the Department of State Police (department) is required by G. L. c. 22C, § 24A, to develop individualized training programs for former State police troopers seeking reinstatement, rather than require them to complete recruit training at the State police academy (academy). Concluding that the statute is unambiguous and that the department may require former troopers separated for more than three years to complete recruit training, we affirm, ordering that the judgment be modified to declare the rights of the parties. Standard of review. We review a ruling on a motion to dismiss de novo, Rodriguez v. Massachusetts Bay Transp. Authy., 92 Mass. App. Ct. 26, 28 (2017), taking the complaint’s allegations as true, as well all reasonable inferences drawn in the plaintiff’s favor, Saliba v. Worcester, 92 Mass. App. Ct. 408, 412 (2017). To survive a motion to dismiss, the plaintiff must present factual allegations that rise above the level of speculation, Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), and plausibly suggest an entitlement to relief, Flagg v. AliMed, Inc., 466 Mass. 23, 26 (2013). Background. The plaintiff was a State police trooper from 1992 until 2000.[2] While so employed, the plaintiff received positive performance evaluations, and he completed all required in-service training in addition to numerous programs, certifications, and service in specialized areas of law enforcement. In 1998, however, the plaintiff suffered a severe injury while on duty, requiring medical leave and ultimately causing his involuntary retirement in 2000. Following several operations and physical rehabilitation, the plaintiff was able to obtain employment, working for the Worcester County sheriff’s department […]
Commonwealth v. Langley (Lawyers Weekly No. 09-029-18)
1 COMMONWEALTH OF MASSACHUSETTS NORFOLK, ss. SUPERIOR COURT Criminal No. 17-64 COMMONWEALTH vs. COREY LANGLEY MEMORANDUM AND ORDER ON DEFENDANT’S MOTION TO DISMISS Defendant Corey Langley is charged with two counts of possession of a substance, material, article, explosive, or ingredient which could be used to make a destructive or incendiary device or substance in violation of G.L. c. 266, § 102(a)(i) (Counts 001 and 002), and two counts of secreting, throwing, launching, or otherwise placing an explosive or incendiary device in violation of G.L. c. 266, § 102A (Counts 003 and 004). Defendant moves to dismiss under Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982), arguing the grand jury heard insufficient evidence to support the indictments. After hearing,1 for the following reasons, the motion is ALLOWED. BACKGROUND The grand jury heard the following evidence: On January 13, 2017, Holbrook Police Department Detective Scott Glover received a call to the effect that two possible explosive devices were located at 44 Poole Circle in Holbrook (“the Property”). When Det. Glover responded to the scene, he observed in the Property’s 1 At the hearing on December 19, 2017, I allowed the Commonwealth’s request for a significant amount of time (until February 27, 2018) to file a written opposition. Despite the accommodation, the Commonwealth has not filed an opposition. 2 backyard near the gate (i) a white bleach bottle with a hole cut into the cap and a pair of underwear on or near the bottle, and (ii) a Crisco bottle filled with nails and batteries, which had a hole cut in its top and a wick coming out of the hole. Det. Glover contacted the State Police Bomb Squad. James Morgan, the owner of the Property, told Det. Glover that after midnight on the previous night, he had heard a loud noise in the woods, like something running away, but he did not see anything. Mr. Morgan reported that the next morning, he observed a bleach bottle in the backyard and a Crisco oil bottle and a burned pair of underwear in the wooded area outside the backyard gate to the Property. Mr. Morgan also said that he noticed that the gate had been sprayed with a liquid. The State Police responded to the scene, photographed the evidence, and made sure it was safe to remove the two bottles from the area. Mr. Morgan told Det. Glover that a number of teenagers were staying in a house on the other side of the wooded area behind the Property, including possibly the defendant; and they were the only people Mr. Morgan believed may have put the objects in his yard. Another Holbrook police officer, Officer Sterling, walked back behind the Property until he […]
Butler v. Turco, et al. (and a companion case) (Lawyers Weekly No. 11-036-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReportersjc.state.ma.us 17-P-814 Appeals Court 17-P-968 BRIAN BUTLER vs. THOMAS A. TURCO & others[1] (and a companion case[2]). Nos. 17-P-814 & 17-P-968. Worcester. Suffolk. February 5, 2018. – March 30, 2018. Present: Meade, Sullivan, & Wendlandt, JJ. Imprisonment, Grievances. Commissioner of Correction. Constitutional Law, Imprisonment, Ex post facto law, Double jeopardy, Cruel and unusual punishment. Due Process of Law, Prison regulation. Practice, Civil, Dismissal. Civil action commenced in the Superior Court Department on January 5, 2016. A motion to dismiss was heard by David Ricciardone, J. Civil action commenced in the Superior Court Department on November 13, 2015. A motion to dismiss was heard by Paul D. Wilson, J. Brian Butler, pro se. Owen McCants, pro se. Sheryl F. Grant for the defendants. MEADE, J. The plaintiffs, Brian Butler and Owen McCants, inmates supervised by the Massachusetts Department of Correction (department) and housed at MCI-Norfolk, each brought actions pro se challenging the consequences imposed on them pursuant to the department’s “Program Engagement Strategy” (PES). The defendants filed motions to dismiss both complaints, which were allowed by two different judges. The plaintiffs appeal, alleging what we construe to be[3] various constitutional infirmities in the PES program. We consolidated the cases for hearing in this court, and now affirm. Background. PES program. In accordance with its mission to “promote public safety by managing offenders,” the department established “appropriate programming in preparation for [inmates’] successful reentry into the community,” such as the Sex Offender Treatment Program (SOTP). However, the department is unable to mandate participation in such programs. As a result, by 2012, a high percentage of offenders declined to attend recommended programs, spending their time in ways that did not address “the very issues that [would] decrease the likelihood that they recidivate.”[4] Nevertheless, these inmates enjoyed the same privileges as “program compliant” offenders, such as single rooms, housing seniority, and institutional jobs. In response, in December of 2013, the department announced it would implement PES, an incentivization structure for program participation.[5] Under PES, privileges are awarded as incentives for inmates who voluntarily participate in programs and are withdrawn from inmates who refuse. The department notified inmates about PES by amending its institutional procedures, hosting informational sessions for inmates, and creating informational flyers. PES went into effect on January […]
Spencer v. Civil Service Commission, et al. (Lawyers Weekly No. 10-046-18)
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 SJC-12326 LUIS S. SPENCER vs. CIVIL SERVICE COMMISSION & another.[1] Suffolk. December 4, 2017. – March 27, 2018. Present: Gants, C.J., Gaziano, Lowy, Cypher, & Kafker, JJ. Commissioner of Correction. Public Employment, Resignation. Civil Service, Decision of Civil Service Commission, Termination of employment, Findings by commission. Jurisdiction, Civil Service Commission. Words, “Termination of his service.” Civil action commenced in the Superior Court Department on December 8, 2015. The case was heard by Robert N. Tochka, J., on motions for judgment on the pleadings. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. David A. Russcol (Monica R. Shah also present) for the plaintiff. Jesse M. Boodoo, Assistant Attorney General, for the defendants. KAFKER, J. The issue presented is whether Luis S. Spencer, who resigned under pressure as Commissioner of Correction (commissioner) in the midst of a public investigation of his oversight of Bridgewater State Hospital, has a right, pursuant to G. L. c. 30, § 46D, to revert to a tenured civil service correction officer II position he last held in 1992. Upon his resignation and the denial of his request to revert, Spencer filed an appeal with the Civil Service Commission (commission). The commission concluded that the right to revert to a civil service position applies only to involuntary terminations, not voluntary resignations, and because Spencer voluntarily resigned, no “termination of his service” had occurred within the meaning of G. L. c. 30, § 46D. Spencer brought a complaint against the commission and the Department of Correction (department), seeking judicial review of the commission’s decision. A judge in the Superior Court affirmed the commission’s decision. Spencer appealed, and we transferred his appeal to this court on our own motion. We conclude that § 46D does not provide a right to revert in these circumstances and that the commission’s interpretation of this ambiguous statutory language is reasonable, as it applies the same rules for reversion to managers as it does to all other civil service employees and avoids the type of manipulation of retirement benefits at issue here. Accordingly, we affirm the decision of the commission. Background. a. Statutory framework. Under the Commonwealth’s civil service statutory scheme, a number of rank and file and lower level management positions, particularly in public safety, are […]
Miranda v. A Justice of the Superior Court Department of the Trial Court (Lawyers Weekly No. 10-047-18)
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-12308 CHRISTIAN MIRANDA vs. A JUSTICE OF THE SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT. March 27, 2018. Supreme Judicial Court, Superintendence of inferior courts. Practice, Civil, Action in nature of certiorari. Practice, Criminal, Postconviction relief, Discovery. Christian Miranda appeals from a judgment of the county court denying his petition for relief in the nature of certiorari pursuant to G. L. c. 249, § 4. Miranda, who has been convicted in the Superior Court of certain drug-related offenses, filed a motion to intervene in a separate criminal case also pending in the Superior Court at that time, apparently seeking to participate in postconviction discovery that was proceeding in that case. After a hearing, the motion was denied. Miranda’s petition sought relief from that denial. As there is no basis in the Rules of Criminal Procedure or other law for a defendant to intervene in another defendant’s unrelated criminal case, Miranda cannot show that relief in the nature of certiorari is necessary “to correct [a] substantial error of law apparent on the record.” State Bd. of Retirement v. Woodward, 446 Mass. 698, 703 (2006). See Republican Co. v. Appeals Court, 442 Mass. 218, 227 n.14 (2004) (intervention is “a concept foreign to criminal procedure”). Moreover, Mass. R. Crim. P. 30, as appearing in 435 Mass. 1501 (2001), provides the mechanism for Miranda to seek postconviction discovery in his own case. The single justice neither erred nor abused his discretion by denying relief. Judgment affirmed. Greg T. Schubert for the plaintiff. Thomas E. Bocian, Assistant Attorney General, for the defendant. Full-text Opinions
Commonwealth v. Grundman (Lawyers Weekly No. 10-045-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReportersjc.state.ma.us SJC-12264 COMMONWEALTH vs. MICHAEL C. GRUNDMAN. Barnstable. November 9, 2017. – March 22, 2018. Present: Gants, C.J., Gaziano, Lowy, & Budd, JJ. Sex Offender. Global Positioning System Device. Practice, Criminal, Sentence, Probation. Indictments found and returned in the Superior Court Department on October 19, 2012. A motion to correct a clerical error in sentence, filed on September 24, 2014, was heard by Gary A. Nickerson, J., and motions for reconsideration were considered by him. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Andrew S. Crouch for the defendant. Elizabeth M. Carey, Assistant District Attorney, for the Commonwealth. LOWY, J. The defendant pleaded guilty to two indictments charging five counts of rape of a child and was sentenced to a term of incarceration and a term of probation. Despite the provisions of G. L. c. 265, § 47, mandating that defendants convicted of certain sex offenses, including rape of a child, be subject to global positioning system (GPS) monitoring as a condition of any term of probation, that condition was not announced in open court when the defendant’s sentence was imposed.[1] At issue here is whether the judge erred in resentencing the defendant to include the GPS monitoring condition approximately ten months after the defendant was originally sentenced. We conclude that because the defendant here did not receive actual notice from the sentencing judge, at the time of sentencing, that GPS monitoring was included as a special condition of his probation, and because the resentencing occurred after the sixty-day period in which an illegal sentence may be corrected under Mass. R. Crim. P. 29 (a) (1), as appearing in 474 Mass. 1503 (2016), the belated imposition of GPS monitoring must be vacated. See Commonwealth v. Selavka, 469 Mass. 502, 513-514 (2014). Background. Following a plea colloquy, the defendant pleaded guilty to five counts of rape of a child, involving two victims. The defendant’s sentencing hearing occurred approximately two months later, when a Superior Court judge sentenced him to a term of two years in a house of correction and a ten-year term of probation (with special conditions) to be served concurrently with his term of incarceration. In open court, the clerk announced that the defendant’s sentence would […]
Commonwealth v. Moore (Lawyers Weekly No. 11-035-18)
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 15-P-944 Appeals Court COMMONWEALTH vs. ERIC MOORE. No. 15-P-944. Suffolk. December 5, 2017. – March 22, 2018. Present: Trainor, Meade, & Wolohojian, JJ. Motor Vehicle, Unauthorized use. Rules of Criminal Procedure. Probable Cause. Practice, Criminal, Complaint, Dismissal, Arraignment. Constitutional Law, Separation of powers. Complaint received and sworn to in the Roxbury Division of the Boston Municipal Court Department on March 23, 2015. A motion to dismiss was heard by Myong Joun, J. Helle Sachse, Assistant District Attorney, for the Commonwealth. Bruce W. Carroll for the defendant. TRAINOR, J. The defendant, Eric Moore, was charged with, among other things, using a motor vehicle without authority (use without authority), in violation of G. L. c. 90, § 24(2)(a). At the arraignment hearing, the defendant orally moved to dismiss the charge of use without authority; the judge allowed the defendant’s motion prior to arraignment and proceeded to arraign the defendant on the remaining charges. The Commonwealth filed this timely appeal, arguing that the judge erred in dismissing the use without authority charge for two reasons: first, a complaint against an adult defendant, unlike one against a juvenile, cannot be dismissed prior to arraignment; and second, the complaint was supported by probable cause that the defendant used the motor vehicle without authority. For the reasons set forth infra, we reverse the dismissal of the charge of use without authority. Background. On March 23, 2015, the defendant was driving a rental car and was pulled over for failing to come to a complete stop at a stop sign. When the police officers asked the defendant for his license and registration, the defendant responded that he did not have a license in his possession. Upon a criminal justice information system query, the officers learned that the defendant’s out-of-State license was suspended. The officers then contacted the rental company and obtained a copy of the rental agreement for the vehicle, which provided that Nicole Hosier of Pittsfield was the only individual authorized to operate the rental car. The officers subsequently arrested the defendant for, among other things, use without authority, and towed the rental car. At the defendant’s arraignment hearing, defense counsel requested to be heard prior to the arraignment. Defense counsel asked the judge to dismiss the use without authority charge because the facts do “not […]