Posts tagged "Ltd."

Roma, III, Ltd. v. Board of Appeals of Rockport (Lawyers Weekly No. 10-002-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12278   ROMA, III, LTD.  vs.  BOARD OF APPEALS OF ROCKPORT.       Suffolk.     September 6, 2017. – January 8, 2018.   Present:  Gants, C.J., Lenk, Gaziano, Budd, Cypher, & Kafker, JJ.     Municipal Corporations, By-laws and ordinances.  Zoning, Validity of by-law or ordinance, Private landing area.  Federal Preemption.       Civil action commenced in the Land Court Department on March 12, 2015.   The case was heard by Robert B. Foster, J., on motions for summary judgment.   The Supreme Judicial Court granted an application for direct appellate review.     Jackie Cowin for the defendant. Nicholas Preston Shapiro (Robert K. Hopkins also present) for the plaintiff. Maura Healy, Attorney General, & Elizabeth N. Dewar, State Solicitor, for division of aeronautics of the Department of Transportation, amicus curiae, submitted a brief.     GANTS, C.J.  A judge of the Land Court barred the town of Rockport (town) from enforcing a zoning bylaw that prohibited the use of land for a private heliport without some form of approval, variance, or special permit because the bylaw had not been approved by the division of aeronautics of the Department of Transportation (division).  The issue on appeal is whether cities and towns may exercise their zoning authority to determine whether land in their communities may be used as a noncommercial private restricted landing area, here a heliport, or whether they may do so only with the approval of the division because the exercise of such zoning authority is preempted by the State’s aeronautics statutes, G. L. c. 90, §§ 35-52 (aeronautics code).  We hold that there is no clear legislative intent to preempt local zoning enactments with respect to noncommercial private restricted landing areas, and that a city or town does not need the prior approval of the division to enforce a zoning bylaw that requires some form of approval, variance, or special permit for land to be used as a private heliport.[1] Background.  Roma, III, Ltd. (plaintiff), is the owner of 1.62 acres of oceanfront property in Rockport (property).  The property, improved by a single-family residence, is located in what is classified as a residential A zoning district. Ron Roma (Roma) is licensed as a helicopter pilot and regularly uses the helicopter he owns to travel to his various family homes, business engagements, and other activities.  Roma does not operate his helicopter for […]

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Posted by Massachusetts Legal Resources - January 9, 2018 at 4:37 pm

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In re Rewalk Robotics Ltd. Stockholder Litigation (Lawyers Weekly No. 09-063-17)

COMMONWEALTH OF MASSACHUSETTS   SUFFOLK, ss.                                                                       SUPERIOR COURT                                                                                                 CIV. NO. 16-3336- BLS 2                                                                                                 (Consol. with 16-3670-BLS 2)     IN RE REWALK ROBOTICS LTD. STOCKHOLDER LITIGATION      MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ RENEWED REQUEST TO STAY     This is a putative class action brought pursuant to Sections 11, 12 and 15 of the Securities Act of 1933.  The lead case was filed October 31, 2016 and the second on November 30, 2106, with the two actions consolidated in January 2017.  In April this year, the defendants moved to stay this case because of pending parallel federal multi-district litigation proceedings.  This Court (Salinger, J.) denied that request because nothing had taken place of note in the federal litigation and because this case was filed first. Defendants then moved to dismiss the case pursuant to Rule 12(b)(6), Mass.R.Civ. P.    One (but not the only)  basis for that motion was that this Court does not have subject matter jurisdiction — an issue over which federal courts have split and which was central to a case which was the subject of a then pending petition for writ of certiorari before the United States Supreme Court.  A hearing  on the Motion to Dismiss was held on October 18, 2017 and the matter taken under advisement.  Shortly thereafter, four of the individual defendants who resided overseas moved to dismiss for lack of service of process; the plaintiffs responded by asking for more time.  At a hearing on this latest motion, defense counsel again renewed their request to stay based on developments since Judge Salinger ruled.  This Court now agrees that this action should be stayed in favor of the pending federal proceedings. Since the original motion to stay was filed, the pending federal litigation in Massachusetts has been expanded to include a case that had been originally filed in California.  There is therefore not just one but two federal cases here that raises the same issues and involves the same parties.  Requiring the parties to litigate in two separate forums — particularly where the federal action is broader and thus will likely proceed regardless of what this Court does – is not a wise use of judicial or litigation resources.  The petition to the United States Supreme Court has been granted, and arguments on that case were heard on November 28, 2017.  If the Supreme Court concludes that this Court does not have jurisdiction, then this case will have to be dismissed.  Most important, defendants have filed a motion to dismiss in the federal litigation that makes similar (if not entirely identical) arguments as were asserted in the motion that this Court heard on October 18.  A hearing on that motion […]

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Posted by Massachusetts Legal Resources - January 9, 2018 at 2:20 am

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Mullins v. Colonial Farms Ltd., et al. (Lawyers Weekly No. 12-077-17)

1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION NO. 2013-04375 BLS1 JOSEPH R. MULLINS, on behalf of nominal defendants CMJ MANAGEMENT COMPANY and CMJMC, INC. vs. COLONIAL FARMS LTD., & others1 FINDINGS OF FACT AND CONCLUSIONS OF LAW FOLLOWING JURY WAIVED TRIAL ON DAMAGES INTRODUCTION As reflected in the court’s earlier Memorandum of Decision and Order on the Parties’ Cross-Motions for Summary Judgment (the Decision, capitalized terms shall have the same meaning in this memorandum as in the Decision), it is undisputed that, at Corcoran’s direction, the Partnerships ceased making payment of the Incentive Management Fees to CMJ Management under the Supplemental Agreements in January, 2010. Further, the termination of these payments would constitute a breach of each of the Supplemental Agreements, unless Corcoran (on behalf of the Partnerships) proved at trial that (i) Corcoran, Jennison and Mullins had all agreed that the Supplemental Agreements were to be cancelled as part of the transaction in which each of them repurchased their interests in the Partnerships from Paine Webber in 1999, and (ii) this cancellation was not reflected in the 1999 transaction documents as a consequence of a mutual mistake. Following a jury trial, on March 1, 2017, the jury answered the single 1 Fawcett’s Pond Apartments Company (Fawcett), Holbrook Apartments Company (Holbrook) Marvin Gardens Associates (Marvin) Quaker Meadows Apartments Company (Quaker), Joseph E. Corcoran, and Gary A. Jennison and CMJ Management Company and CMJMC, Inc., nominal defendants. 2 question put to them in a special verdict slip concerning the existence of such a mutual mistake2: “NO.” The parties had previously agreed that if the jury found that no mutual mistake had occurred, they would submit the question of how much should have been paid to CMJ Management by the Partnerships to the court for its decision, jury-waived. The court heard evidence on this issue on March 3, 2016 (as a supplement to the evidence presented during the jury trial). Three witnesses testified and an additional six exhibits were admitted in evidence. Thereafter, the parties submitted proposed findings of fact and conclusions of law. FINDINGS OF FACT/CONCLUSIONS OF LAW Findings and Conclusions Addressing the Manner in which the Incentive Management Fees are Calculated During Years in which there were no Regulatory/Loan Restrictions on Distributions The Supplemental Agreements for four of the Partnerships—Colonial, Marvin, Quaker, and Fawcett all provided that, “to the extent funds are available for [their] payment”: The Incentive Management Fee shall be an annual, non-cumulative fee payable out of cash available therefor . . . in an amount equal to, for each year, 40% of the amount, if any, by which Cash Flow for such year exceeds one half of the maximum amount of distributable cash flow […]

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Posted by Massachusetts Legal Resources - July 1, 2017 at 2:08 am

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In re ReWalk Robotics Ltd. Stockholder Litigation (Lawyers Weekly No. 12-048-17)

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1684CV03336-BLS2 1684CV03670-BLS2 ____________________ IN RE REWALK ROBOTICS LITD. STOCKHOLDER LITIGATION ____________________ MEMORANDUM AND ORDER DENYING DEFENDANTS’ MOTION TO STAY PENDING PARALLEL FEDERAL PROCEEDINGS The named plaintiffs in these putative class actions claim that ReWalk Robotics Ltd. and thirteen other defendants are liable under §§ 11, 12(a)(2), and 15 of the federal Securities Act because ReWalk purportedly made false statements in a registration statement and prospectus concerning a public offering of securities. The first of these actions was filed on October 31, 2016. The second was filed on November 30, 2016. They were consolidated on January 9, 2017. A similar lawsuit making similar Securities Act claims against the same Defendants was filed in the United States District Court for the District of Massachusetts on January 31, 2017. That lawsuit was docketed as Deng v. ReWalk Robotics et al., no. 1:17-cv-10179-FDS, and is pending before Judge Saylor. Defendants have moved to stay these state court proceedings pending dispositive resolution of this federal lawsuit.1 A trial judge has broad discretion to grant or deny a stay of proceedings pending resolution of the same or similar claims in another forum. Travenol Laboratories, Inc. v. Zotal, Ltd., 394 Mass. 95, 97 (1985). The Court concludes, in the exercise of its discretion, that there is no good reason to stay these actions. It will therefore DENY Defendants’ motion. 1 When Defendants filed their motion to stay, they represented that a second federal class action asserting similar claims had been filed against them in the United States District Court for the Northern District of California, and that Defendants have moved to have the two federal actions consolidated in the District of Massachusetts as a single multidistrict litigation proceeding. In their reply memorandum, however, Defendants report that the California action was voluntarily dismissed on March 23, 2017. As a result, there are currently only two sets of actions asserting similar Securities Act claims against ReWalk and the other Defendants: these two actions in Massachusetts Superior Court and the Deng case filed several months later in federal court in the District of Massachusetts. – 2 – Although Defendants argue that it would be inefficient for these cases and the pending federal action to proceed at the same time, they do not muster any convincing explanation as to why they seek a stay of these actions in Massachusetts court rather than asking the federal judge to stay the later-filed federal action. The first of these consolidated actions was filed in the Massachusetts Superior Court three months before the pending federal action was filed. Furthermore, the additional factual allegations asserted in the consolidated complaint in these actions suggest that the state court plaintiffs have […]

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Posted by Massachusetts Legal Resources - April 27, 2017 at 4:32 pm

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Fletcher Fixed Income Alpha Fund, Ltd., et al. v. Grant Thornton LLP, et al. (Lawyers Weekly No. 11-085-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   15-P-830                                        Appeals Court   FLETCHER FIXED INCOME ALPHA FUND, LTD., & another[1]  vs.  GRANT THORNTON LLP & others.[2]     No. 15-P-830.   Suffolk.     January 6, 2016. – July 14, 2016.   Present:  Cypher, Grainger, & Meade, JJ.     Auditor.  Practice, Civil, Motion to dismiss.  Jurisdiction, Nonresident, Long-arm statute.  Due Process of Law, Jurisdiction over nonresident.  Negligence, Misrepresentation, Proximate cause.  Proximate Cause.     Civil action commenced in the Superior Court Department on January 17, 2014.   Motions to dismiss were heard by Janet L. Sanders, J.     Rachel S. Fleishman, of New York (Philip Y. Brown with her) for the plaintiffs. Grant J. Esposito, of New York, for Grant Thornton LLP. William M. Connolly, of Pennsylvania, for EisnerAmper LLP & another. Jonathan D. Cogan, of New York, for SS&C Technologies, Inc.     MEADE, J.  The plaintiffs, Fletcher Fixed Income Alpha Fund, Ltd. (Alpha), and Massachusetts Bay Transportation Authority Retirement Fund (MBTARF), Alpha’s sole shareholder, appeal from the dismissal of their claims for accounting malpractice and negligent misrepresentation against certain entities that audited and administered Alpha, for failing to discover the fund manager’s fraud.  The claims against the defendants, Grant Thornton LLP (Grant Thornton), and EisnerAmper LLP and EisnerAmper (Cayman) Ltd. (collectively, EisnerAmper), who served as auditors, were dismissed for lack of personal jurisdiction, a Superior Court judge ruling that the plaintiffs failed to show that their claims arose from the defendants’ transaction of business in Massachusetts.  The claims brought by MBTARF against SS&C Technologies, Inc. (SS&C), a former Alpha administrator, were dismissed for failure to state a claim upon which relief can be granted, the judge reasoning that Alpha was insolvent by the time SS&C was hired, thereby negating the element of proximate cause. Pending their appeal to this court, the plaintiffs settled with EisnerAmper.  As to the remaining defendants, the plaintiffs principally argue that in deciding the issue of specific jurisdiction, the judge should have taken into account a broader range of contacts between Grant Thornton and Massachusetts, and should have considered Grant Thornton’s knowledge that the audit reports would be sent to a Massachusetts entity.  MBTARF also maintains that the judge held it to an incorrect pleading standard in dismissing its claims against SS&C for failure to allege facts to support causation.  We affirm. Background.  We summarize the undisputed facts from the judge’s February 23, […]

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Posted by Massachusetts Legal Resources - July 18, 2016 at 2:20 pm

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Crown v. Kobrick Offshore Fund, Ltd., et al. (Lawyers Weekly No. 11-040-14)

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‑64                                         Appeals Court   MARC CROWN, trustee,[1]  vs.  KOBRICK OFFSHORE FUND, LTD., & others.[2] No. 13‑P‑64. Suffolk.     December 6, 2013.  ‑  April 24, 2014. Present:  Fecteau, Sullivan, & Maldonado, JJ.     Uniform Securities Act.  Securities, Sale.  Consumer Protection Act, Securities transactions.  Practice, Civil, Instructions to jury, Judgment notwithstanding verdict, Summary judgment, Attorney’s fees.  Evidence, Impeachment of credibility, Cross‑examination, Expert opinion, Qualification of expert witness.  Witness, Impeachment, Cross‑examination, Expert.  Contract, Indemnity.  Indemnity.  Public Policy.       Civil action commenced in the Superior Court Department on June 21, 2001.     After review by the Supreme Judicial Court, 442 Mass. 43 (2004), a motion for summary judgment was heard by Ralph D. Gants, J.; the case was tried before Margaret R. Hinkle, J., and motions for judgment notwithstanding the verdict, for a new trial, and to alter or amend the findings were considered by her.     Philip Y. Brown (Stacie A. Kosinski with him) for the plaintiff. Jeffrey S. Robbins for the defendants.     FECTEAU, J.  This cross appeal involves the plaintiff’s claim under the Massachusetts Uniform Securities Act (securities act) for misrepresentation, G. L. c. 110A, § 410(a)(2), tried to a jury, and a claim for unfair and deceptive trade practices, G. L. c. 93A, § 11, tried to a judge; both trials resulted in a judgment for the defendants.  On appeal from the judgment and the denial of three posttrial motions, the plaintiff challenges a number of evidentiary rulings, the jury instructions, and the sufficiency of the evidence.  In their cross appeal from the judgment, the defendants challenge the allowance of the plaintiff’s motion for summary judgment that dismissed their counterclaim for breach of contract.   We discern no abuse of discretion or other error in the evidentiary rulings or jury instructions challenged by the plaintiff, and we see no merit in the plaintiff’s argument that the evidence was insufficient.  As to the defendants’ claim on appeal, we conclude that summary judgment was properly entered because the ground for the defendants’ counterclaim is irreconcilable with the Supreme Judicial Court’s decision in a related case, Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43 (2004) (Marram I).  Accordingly, we affirm the judgment and the orders denying the plaintiff’s posttrial motions. Background.  1.  Procedural history.  This dispute arises from the plaintiff’s investment in the Kobrick Offshore Fund (fund), which […]

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Posted by Massachusetts Legal Resources - April 24, 2014 at 5:09 pm

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Fraco Products, Ltd., et al. v. Bostonian Masonry Corporation (Lawyers Weekly No. 11-118-13)

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us     12‑P‑933                                                                              Appeals Court   FRACO PRODUCTS, LTD., & another[1]  vs.  BOSTONIAN MASONRY CORPORATION. No. 12‑P‑933. Suffolk.     May 6, 2013.  ‑  September 26, 2013. Present:  Kantrowitz, Katzmann, & Rubin, JJ.       Negligence, Construction work, Scaffolding, Manufacturer, Vicarious liability, Joint tortfeasor.  Indemnity.  Workers’ Compensation Act, Exclusivity provision.  Joint Tortfeasors.  Contract, Indemnity.       Civil action commenced in the Superior Court Department on April 11, 2006.   The case was heard by Nancy Holtz, J., on a motion for partial summary judgment.     James E. Carroll for the plaintiffs. Robert R. Pierce for the defendant.       KATZMANN, J.  This appeal arises from a construction accident and involves a dispute over indemnification.[2]  The primary issue on appeal is whether the trial judge properly granted summary judgment against Fraco Products, Ltd., and Fraco Products, Inc. (collectively, Fraco), on their third-party complaint seeking indemnification from Bostonian Masonry Corporation (Bostonian) on a theory of common-law indemnity, where Bostonian had paid workers’ compensation benefits to the estate of its employee, the plaintiff in the underlying suit.  We affirm. Background.  Fraco is a designer, manufacturer, and seller of industrial mast-climbing platforms used in construction.  The mast-climbing platforms are used instead of scaffolding.  They are long platforms that are hydraulically lifted up (or lowered down) a mast extending up the side of a structure.  Construction workers, such as masons, stand on the platforms to install materials, such as stone and windows.  On April 8, 2004, Fraco sold Bostonian six platforms, including the mast-climbing platform (Machine No. 10) at issue in this construction accident, for $ 225,710.  Bostonian paid an initial amount upon delivery and then paid the remainder in five monthly installments.  The terms and conditions of the contract provided the following language as to the right of ownership: “Right of Ownership – Under this Agreement, the SELLER [Fraco] shall remain and shall continue to remain the owner of the Equipment sold to the BUYER [Bostonian], the Parties agreeing that the ownership shall not be transferred neither [sic] at the drafting stage of the Agreement, nor upon delivery of the Equipment, but only after all sums due, as stated in each and every invoice to be issued by the SELLER, will have been paid in full to the SELLER.”   The terms and conditions of the sales contract also included provisions as to […]

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Posted by Massachusetts Legal Resources - September 26, 2013 at 4:05 pm

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Brigade Leverage Capital Structures Fund Ltd., et al. v. PIMCO Income Strategy Fund, et al. (Lawyers Weekly No. 10-167-13)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750;  (617) 557-1030; SJCReporter@sjc.state.ma.us     SJC‑11289   BRIGADE LEVERAGED CAPITAL STRUCTURES FUND LTD. & another[1]  vs. PIMCO INCOME STRATEGY FUND & another.[2]     Suffolk.     May 6, 2013.  ‑  September 11, 2013. Present:  Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.       Business Trust.  Trust, Business trust.  Corporation, By‑laws, Stockholder, Board of directors.  Contract.  Words, “On at least an annual basis.”       Civil action commenced in the Superior Court Department on December 1, 2011.   The case was heard by Peter M. Lauriat, J., on motions for summary judgment.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     John C. Ertman, of New York (C. Thomas Brown with him) for the defendants. Joseph S. Allerhand, of New York (Patrick J. O’Toole, Jr., with him) for the plaintiffs. The following submitted briefs for amici curiae: Peter H. Mixon, of California, for California Public Employees’ Retirement System. Jeff Mahoney, of the District of Columbia, for Council of Institutional Investors. Jesse M. Fried, pro se.     GANTS, J.  Under Section 10.2 of the bylaws of the defendants, PIMCO Income Strategy Fund and PIMCO Income Strategy Fund II (collectively, “Funds” or “defendants”), “regular meetings of the Shareholders for the election of Trustees . . . shall be held, so long as Common Shares are listed for trading on the New York Stock Exchange, on at least an annual basis.”  The issue on appeal is the meaning of “on at least an annual basis.”  The plaintiffs, Brigade Leveraged Capital Structures Fund Ltd. and Brigade Capital Management, LLC (collectively, “Brigade” or “plaintiffs”), contend that the bylaws require that an annual meeting of shareholders of each of the Funds be held in or within twelve months of the last annual shareholder meeting.  The defendants contend that the bylaws require only that one annual shareholders’ meeting be held each fiscal year for each of the Funds.  We conclude that “on at least an annual basis” means that an annual shareholders’ meeting for each of the Funds must be held no later than one year and thirty days (395 days) after the last annual shareholders’ meeting. Background.  The defendant Funds are closed-end investment companies registered under the Investment Company Act of 1940, as amended, 15 U.S.C. § 80a-5(a)(1)(2) (2006), that are organized as Massachusetts business trusts under G. L. c. 182.  […]

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Posted by Massachusetts Legal Resources - September 11, 2013 at 6:19 pm

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Cannonball Fund, Ltd., et al. v. Dutchess Capital Management, LLC, et al. (Lawyers Weekly No. 11-094-13)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750;  (617) 557-1030; SJCReporter@sjc.state.ma.us         12‑P‑876                                   Appeals Court   CANNONBALL FUND, LTD., & others[1]  vs.  DUTCHESS CAPITAL MANAGEMENT, LLC, & others.[2]     No. 12‑P‑876. Suffolk.     January 17, 2013.  ‑  August 2, 2013. Present:  Cypher, Rubin, & Wolohojian, JJ.   Limitations, Statute of.  Practice, Civil, Statute of limitations, Dismissal, Standing.  Jurisdiction, Personal, Long‑arm statute, Nonresident.  Corporation, Derivative action.  Fiduciary.  Partnership, Fiduciary duty.  Negligence, Causation.  Due Process of Law, Jurisdiction over nonresident.  Contract, Implied covenant of good faith and fair dealing, Performance and breach.       Civil action commenced in the Superior Court Department on June 21, 2011.   Motions to dismiss were heard by Judith Fabricant, J.       John F. Hagan, Jr., of Illinois, for the plaintiffs. Sanford F. Remz for Sullivan Bille, P.C. Matthew Iverson for Dutchess Capital Management, LLC, & others.   WOLOHOJIAN, J.  This is the second suit brought individually and derivatively by investors in two “feeder” hedge funds against those who controlled or were involved in the operation of the feeder and master funds[3] and a related entity, against one feeder fund’s accounting firm, and against the administrator of both feeder funds.  The plaintiffs previously filed a substantially similar case in the Delaware Court of Chancery.  After four of the defendants moved to dismiss the Delaware claims for lack of personal jurisdiction, the plaintiffs voluntarily dismissed the Delaware suit in its entirety.  Almost eight months later, the plaintiffs then filed this case in the Superior Court.   The primary issue on appeal is whether the plaintiffs are entitled to the benefit of the Massachusetts savings statute, G. L. c. 260, § 32, which permits claims that were timely when originally filed to be refiled (despite the subsequent running of the limitations period) within one year after being dismissed “for any matter of form.”  We conclude that voluntary dismissals are not per se excluded from the scope of the savings statute.  We also conclude, however, that the record does not establish that all the claims dismissed in the Delaware action were dismissed for a matter of form.  Those claims that were not dismissed for a matter of form were properly dismissed by the Superior Court judge as untimely.  Those claims for which a sufficient question of fact was raised in the Superior Court, at least at the pleading stage, as to whether they were voluntarily dismissed in the Delaware action […]

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Posted by Massachusetts Legal Resources - August 2, 2013 at 3:52 pm

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DeWolfe v. Hingham Centre, Ltd., et al. (Lawyers Weekly No. 10-064-13)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750;  (617) 557-1030; SJCReporter@sjc.state.ma.us     SJC‑11168   DANIEL DeWOLFE  vs.  HINGHAM CENTRE, LTD., & others.[1]       Plymouth.     December 3, 2012.  ‑  April 11, 2013. Present:  Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.       Broker.  Negligence, Real estate broker, Misrepresentation.  Zoning.       Civil action commenced in the Superior Court Department on November 6, 2006.   The case was heard by Charles J. Hely, J., on a motion for summary judgment, and entry of final judgment was ordered by him.   After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.     Terrance J. Hamilton (Andrew T. Imbriglio with him) for the defendants. Lawrence J. Rose for the plaintiff. Diane C. Tillotson & Shana E. Maldonado, for Massachusetts Association of Realtors and another, amici curiae, submitted a brief.       LENK, J.  This case arises from certain incorrect representations that a real estate broker made to prospective buyers about the zoning classification of a listed property.  The plaintiff purchased the property after having received the incorrect information and was thereafter unable to use the property as he had intended.  We are called upon to decide whether, in the circumstances, a broker has a duty to investigate before making representations as to the zoning classification of a property.  We are also called upon to decide whether an exculpatory clause concerning warranties and representations, contained in a standard form purchase and sale agreement, precludes the buyer from relying on the broker’s prior written representations as to zoning classification. We conclude that a broker has a duty to exercise reasonable care in making representations as to a property’s zoning designation.  Where, as here, the misrepresentations were based on information provided by the seller, the question turns on whether it was reasonable in the circumstances to rely upon such information, a question to be determined by the trier of fact.  We further conclude that the exculpatory clause in the purchase and sale agreement does not preclude the buyer’s reliance on prior written representations.  Because the defendants have not satisfied their burden of establishing an entitlement to judgment as a matter of law, see Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002), we vacate the judgment.[2]   1.  Background.  The following facts are undisputed.  M. Eileen Richards was a licensed real estate broker employed by […]

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Posted by Massachusetts Legal Resources - April 12, 2013 at 2:39 am

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