Grand Manor Condominium Association, et al. v. City of Lowell (Lawyers Weekly No. 10-015-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12294 GRAND MANOR CONDOMINIUM ASSOCIATION & others[1] vs. CITY OF LOWELL. Middlesex. October 5, 2017. – January 19, 2018. Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker, JJ. Hazardous Materials. Massachusetts Oil and Hazardous Material Release Prevention Act. Real Property, Environmental damage. Limitations, Statute of. Practice, Civil, Statute of limitations. Damages, Hazardous waste contamination. Civil action commenced in the Superior Court Department on October 10, 2012. The case was tried before Kathe M. Tuttman, J. The Supreme Judicial Court granted an application for direct appellate review. Alan B. Rubenstein (Stacie A. Kosinski also present) for the plaintiff. C. Michael Carlson, Assistant City Solicitor (Rachel M. Brown, Assistant City Solicitor, also present) for city of Lowell. KAFKER, J. The owners of condominium units at Grand Manor and the Grand Manor Condominium Association (collectively, plaintiffs) filed suit against the city of Lowell (city) on October 10, 2012, for the release of hazardous materials at the Grand Manor condominium site. The plaintiffs brought claims for response costs under G. L. c. 21E, § 4A, and for damage to the plaintiffs’ property under G. L. c. 21E, § 5 (a) (iii).[2] A jury found that the plaintiffs’ claim under § 5 (a) (iii) was barred by the applicable statute of limitations, G. L. c. 21E, § 11A (4). The plaintiffs appealed, and we granted their application for direct appellate review. On appeal, the plaintiffs argue that (1) the statute of limitations did not begin to run until the plaintiffs knew that the property damage was permanent; and (2) the trial judge erred in instructing the jury that the plaintiffs had the burden of persuasion to show that they filed suit within the statute of limitations. The city contends that the plaintiffs needed to know only that there was environmental damage and that the defendant was the source of the damage, not that the damage was permanent, for the limitations period to begin to run. The city also contends that the jury were properly instructed. We conclude that a plaintiff must be on notice that he or she has a claim under § 5 (a) (iii) before that claim may be time barred, and that such notice is separate from a plaintiff’s notice that environmental contamination has occurred. A plaintiff has notice of a claim under § 5 (a) (iii) once the plaintiff learns whether or not […]
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Deputy Chief Counsel for the Public Defender Division of the Committee for Public Counsel Services, et al. v. Acting First Justice of the Lowell Division of the District Court Department (Lawyers Weekly No. 10-084-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12121 DEPUTY CHIEF COUNSEL FOR THE PUBLIC DEFENDER DIVISION OF THE COMMITTEE FOR PUBLIC COUNSEL SERVICES & another[1] vs. ACTING FIRST JUSTICE OF THE LOWELL DIVISION OF THE DISTRICT COURT DEPARTMENT. Suffolk. November 9, 2016. – May 24, 2017. Present: Gants, C.J., Hines, Gaziano, Lowy, & Budd, JJ. Committee for Public Counsel Services. District Court, Drug court session. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on February 23, 2016. The case was reported by Duffly, J. Paul R. Rudof, Committee for Public Counsel Services (Ryan M. Schiff, Committee for Public Counsel Services, also present) for the plaintiffs. Bethany L. Stevens for the defendant. HINES, J. This matter is before us on a reservation and report, by a single justice of this court, of a petition for relief under G. L. c. 211, § 3. The petition, brought by the Deputy Chief Counsel for the Public Defender Division of the Committee for Public Counsel Services and the Deputy Chief Counsel for the Private Counsel Division of the Committee for Public Counsel Services (collectively CPCS), sought an order affirming CPCS’s independent authority under G. L. c. 211D to select and supervise attorneys for indigent defendants in the pilot program it had launched in the drug court session of the Lowell Division of the District Court Department (drug court). The issue arose after the Acting First Justice of the Lowell District Court (Justice), citing the need for a “team” approach to cases in the drug Court, removed CPCS attorneys from drug court cases to which they had been assigned and excluded CPCS attorneys from assignment to any new case in the drug court. The single justice, in her reservation and report, observed that “the matter raises some important legal questions that ought to be decided by the full court, concerning specialty courts in general and adult drug courts in particular, and the respective roles and responsibilities of judges, [CPCS], and individual defense attorneys.” The issue highlights the tension that may arise between an attorney’s duty to zealously advocate for the rights of the drug court defendant and a drug court model that favors a collaborative and nonadversarial approach to supervision of the drug court defendant. We recognize that the success of drug court outcomes depends in large part […]
Lowell v. Talcott, et al. v. Hunnewell, et al. (Lawyers Weekly No. 11-096-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-1053 Appeals Court WILLIAM A. LOWELL, trustee,[1] vs. MARIA OAKES TALCOTT & others;[2] ARNOLD W. HUNNEWELL, JR., & another,[3] third-party defendants. No. 13-P-1053. Norfolk. April 10, 2014. – August 18, 2014. Present: Graham, Wolohojian, & Milkey, JJ. Trust, Beneficiary. Devise and Legacy, Issue. Legitimacy. Paternity. Probate Court, Interpretation of trust instrument, Attorney’s fees. Practice, Civil, Attorney’s fees. Words, “Issue.” Civil action commenced in the Norfolk Division of the Probate and Family Court Department on September 28, 2010. The case was heard by George F. Phelan, J., on motions for summary judgment; a motion for attorney’s fees and costs was heard by him; and the entry of final judgment was ordered by him. James R. Knudsen for Maria Oakes Talcott. Maureen E. Curran for Katharine Van Buskirk & others. Steven E. Gurdin (A. Hether Cahill with him) for William A. Lowell & others. GRAHAM, J. In this case, we are asked to consider whether a child born in 1963 while her mother was married to a man who is not the child’s father, is an “issue” of the mother as that term is used in the wills of the mother’s grandparents, drafted in 1951. We conclude that on the particular facts presented, she is. Background. In 1951, Francis J. Oakes, Jr., and his wife, Mary P. Oakes (collectively, testators), executed reciprocal wills leaving the bulk of their property in trust for the benefit of one another and their issue. Francis[4] died on August 14, 1954, and Mary died on July 7, 1956. Upon their deaths, pursuant to each will, separate trusts were created for each of their three daughters and their respective “issue.” Thus, two trusts were created for each daughter. Only the trusts for their daughter, Elisabeth Oakes Colford, and her issue, are before us. The wills provided for discretionary distributions of “net income and/or principal” to the testators’ children or to the “issue of such child.” The term “issue” is not defined in the wills. The trusts are to terminate twenty-one years after the death of the last survivor of those of the testators’ issue who were living at the time of the testators’ deaths, in equal shares per stirpes. In 1955, Elisabeth’s daughter, Juliana Colford Van Buskirk, married David Van Buskirk. Their daughters, Katharine and Elisabeth,[5] were born in 1956 […]
McLaughlin v. City of Lowell (Lawyers Weekly No. 11-093-13)
NOTICE: The slip opinions and orders posted on this Web site are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. This preliminary material will be removed from the Web site once the advance sheets of the Official Reports are published. 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 James McLAUGHLIN vs. CITY OF LOWELL. No. 11-P-2072. Middlesex. February 7, 2013. – July 25, 2013. Fire Fighter, Retirement, Incapacity. Municipal Corporations, Fire department, Retirement board. Public Employment, Accidental disability retirement, Reinstatement of personnel. Public Employee Retirement Administration Commission. Division of Administrative Law Appeals. Contributory Retirement Appeal Board. Administrative Law, Judicial review. Collateral Estoppel. Practice, Civil, Summary judgment, Judgment notwithstanding verdict. Employment, Discrimination. Anti-Discrimination Law, Employment, Handicap. CIVIL ACTION commenced in the Superior Court Department on May 24, 2004. Motions for summary judgment were heard by Joseph M. Walker, III, J., and the case was tried before him. Betsy L. Ehrenberg (Alfred Gordon with her) for the plaintiff. Kimberley A. McMahon, Assistant City Solicitor, for the defendant. Present: Cypher, Kantrowitz, & Fecteau, JJ. FECTEAU, J. The plaintiff, James McLaughlin, and the defendant, city of Lowell (city), each appeal from orders and judgments of a judge of the Superior Court. McLaughlin, a former fire department captain retired on a disability pension, sought restoration to service. He appeals the entry of summary judgment in favor of the city with respect to his reinstatement claim under G.L. c. 32, § 8(2). Having successfully brought handicap discrimination and interference claims, however, which resulted in jury verdicts in his favor, McLaughlin avers that the trial judge improperly eviscerated the remedial scheme of G.L. c. 151B and arbitrarily reduced the amount of his attorney’s fees and costs. [FN1] On the other hand, the city contends that the Superior Court lacked jurisdiction over McLaughlin’s discrimination claims and erroneously allowed McLaughlin to relitigate matters already decided before the Division of Administrative Law Appeals (DALA) and the Contributory Retirement Appeal Board (CRAB). The city additionally argues that McLaughlin did not prove a prima facie case of handicap discrimination or interference, and further, that the judge erred in giving certain jury instructions. [FN2] We affirm in part and reverse in part. 1. Background. McLaughlin began working as a firefighter with the Lowell fire department (LFD) in 1974, ultimately attaining the rank of captain. On July 8, 1996, McLaughlin suffered an asthma attack after responding to a small outdoor mulch fire without wearing protective gear. Thereafter, McLaughlin applied for and was granted accidental disability retirement under […]
Lynch, Markey to Debate Tonight in Lowell
The combatants for the Democratic nomination in the U.S. Senate special election will square off Monday night in Lowell for their second debate leading up to the April 30 primary. Congressmen Edward Markey (D-Malden) and Stephen Lynch (D-South Boston) will participate in the debate being held at 7:30 p.m. at Durgin Hall on the campus of the University of Massachusetts Lowell. The debate is being sponsored by UMass Lowell’s Center for Public Opinion and the Boston Herald. Questions for the debate will be posed by UMass Lowell students while the moderator will be reporter Jaclyn Cashman, according to the university. Markey and Lynch previously met for their first debate March 27 at the Channel 5 studios in Needham. The two candidates agreed to six total debates before the primary. The winner of the April 30 primary will be the Democratic nominee to fill the U.S. Senate seat vacated by U.S. Secretary of State John Kerry. The general election in June 25. SOUTH END PATCH: Facebook | Twitter | E-mail Updates South End Patch