Murray, et al. v. Department of Conservation and Recreation (Lawyers Weekly No. 10-115-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 SJC-12002 ELAINE K. MURRAY & another[1] vs. DEPARTMENT OF CONSERVATION AND RECREATION. Suffolk. April 5, 2016. – August 4, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.[2] Land Court, Jurisdiction. Jurisdiction, Land Court. Railroad. Easement. Real Property, Easement. Civil action commenced in the Land Court Department on September 19, 2011. The case was heard by Gordon H. Piper, J., on motions for summary judgment. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. David A. Murray (Peter M. Schilling with him) for the plaintiffs. Frances S. Cohen, Assistant Attorney General, for the defendant. SPINA, J. The plaintiffs appeal from a judgment of the Land Court dismissing without prejudice their action to quiet title under G. L. c. 240, §§ 6-10, for lack of subject matter jurisdiction.[3] The thrust of their action is that a railroad easement formerly owned by the Pennsylvania Central Transportation Co. (Penn Central) across portions of their lands was abandoned when the United States Railway Association (USRA), acting pursuant to the Regional Rail Reorganization Act of 1973, devised a final system plan which designated certain profitable rail lines that were to be transferred from eight bankrupt regional rail carriers in the northeast and the midwest regions of the country to the Consolidated Rail Corporation (Conrail), but not the rail line over the easement that encumbered their lands. The plaintiffs contended that the railroad easement over their lands was abandoned by virtue of its nondesignation for transfer to Conrail in the final system plan. The judge in the Land Court disagreed and concluded that a certificate of abandonment from the Federal Surface Transportation Board (STB) was necessary before a State court could exercise jurisdiction to determine State law claims regarding easements, and that STB’s jurisdiction was both exclusive and primary. The plaintiffs appealed, and we transferred the case to this court on our own motion. We affirm the judgment of the Land Court. Facts. The following facts are undisputed. Boston and Worcester Railroad (B&W) was created in 1831. In 1847 it filed a “Plan of Location of the Newton Railroad” with the Middlesex County commissioners. The easement over the plaintiffs’ properties appears as part of the proposed railroad line depicted on the […]
Categories: News Tags: 1011516, Conservation, department, Lawyers, Murray, Recreation, Weekly
Murray v. Town of Hudson, et al. (Lawyers Weekly No. 10-135-15)
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-11816 JOHN W. MURRAY vs. TOWN OF HUDSON & others.[1] Worcester. April 9, 2015. – August 3, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Municipal Corporations, Liability for tort, Parks, Notice to municipality, Governmental immunity. Negligence, Municipality, One owning or controlling real estate, Athletics. Massachusetts Tort Claims Act. Parks and Parkways. Governmental Immunity. Notice, Claim under Massachusetts Tort Claims Act. Practice, Civil, Presentment of claim under Massachusetts Tort Claims Act. Civil action commenced in the Superior Court Department on April 24, 2013. The case was heard by John S. McCann, J., on a motion for summary judgment. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Brian W. Murray for the plaintiff. John J. Davis for town of Hudson. Charlotte E. Glinka, Thomas R. Murphy, Elizabeth S. Dillon, & John A. Finbury, for Massachusetts Academy of Trial Attorneys, amicus curiae, submitted a brief. GANTS, C.J. During a varsity baseball game between two high school teams at a public park in the town of Hudson (town), the plaintiff, a ballplayer with the visiting team, seriously injured his knee while warming up in the bullpen. The plaintiff filed suit in the Superior Court against the town under the Massachusetts Tort Claims Act, G. L. c. 258 (act), alleging that his injury was caused by the town’s negligence and its wanton and reckless conduct in allowing the visiting team to use a dangerous bullpen. The judge allowed the town’s motion for summary judgment, concluding that the evidence did not support a finding of wanton or reckless conduct, and that the plaintiff’s negligence claim was barred by the recreational use statute, G. L. c. 21, § 17C, where the injury occurred on a baseball field owned by the town that it allowed the public to use without a fee, and where the town had no “special relationship” with the plaintiff because he was a student from a visiting high school rather than the town’s own high school. We conclude that the town could be found liable for negligence despite the recreational use statute because, where a town’s school invites another town’s school to play an athletic match on a town field, the town owes the visiting student-athletes the same duty to provide a […]
Murray v. Super (Lawyers Weekly No. 11-022-15)
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 14-P-518 Appeals Court DAWN MICHELLE MURRAY vs. JONATHAN S. SUPER. No. 14-P-518. Worcester. December 2, 2014. – March 16, 2015. Present: Cypher, Wolohojian, & Blake, JJ. Divorce and Separation, Child custody, Child support, Modification of judgment. Minor, Custody. Parent and Child, Custody, Child support. Complaint for divorce filed in the Worcester Division of the Probate and Family Court Department on January 30, 2009. After consolidation, complaints for modification, filed on July 10, 2012, and October 2, 2013, were heard by Lucille A. DiLeo, J. Nicholas J. Plante for the mother. Christine D. Anthony for the father. BLAKE, J. The mother, Dawn Michelle Murray, appeals from a judgment of the Probate and Family Court dismissing her complaint for modification, which sought to remove the minor children of the marriage to the State of California. Where the parent seeking to move has primary physical custody of the children, the standard governing removal of the minor children from the Commonwealth requires a determination of whether there is a real advantage to the custodial parent and consideration of the best interests of the children and the interests of both parents. See Yannas v. Frondistou-Yannas, 395 Mass. 704, 710-711 (1985) (Yannas). Where the real advantage to the custodial parent is at odds with the best interests of the children, the children’s interests are paramount. Concluding that the judge below did not err in placing the interests of the children first, we affirm that part of the judgment denying the mother’s request to remove the children to California. The mother also appeals from that portion of the judgment reducing the child support obligation of the father, Jonathan S. Super.[1] We vacate the portion of the judgment related to child support and remand the matter for additional findings on that issue. Background. We summarize the proceedings, setting forth relevant background facts as determined by the judge, supplemented by the record where necessary, and reserving other facts for our later discussion of the issues. The parties were divorced by judgment of divorce nisi on October 24, 2011, after a contested trial. The divorce judgment provided, in pertinent part, that the parties would share legal custody of their three minor children,[2] with the mother having “primary physical custody” and the father having parenting time. When the children are not in […]
Aviksis, et al. v. Murray, et al. (Lawyers Weekly No. 11-021-15)
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-1718 Appeals Court FELIX AVIKSIS & another[1] vs. KEVIN MURRAY & others.[2] No. 13-P-1718. Suffolk. November 24, 2014. – March 6, 2015. Present: Meade, Hanlon, & Carhart, JJ. Landlord and Tenant, Attorney’s fees. Contract, To guarantee rent payments. Practice, Civil, Attorney’s fees. Civil actions commenced in the Boston Division of the Housing Court Department on September 26, 2008 and November 14, 2008. After consolidation, the cases were heard by MaryLou Muirhead, J., and a motion for attorney’s fees and costs was heard by her. Hans R. Hailey for the plaintiffs. Joseph Lichtblau for the defendants. CARHART, J. Felix Aviksis appeals from a Boston Housing Court judgment awarding attorney’s fees pursuant to G. L. c. 186, § 20, to Kevin Murray (Murray). The award followed a bench trial and a finding in favor of Murray on a complaint by Aviksis, which alleged that Murray was liable as guarantor for damage to a leased premises caused by Murray’s son while a tenant. We reverse the award. Background. On September 1, 2007, several young men, including Murray’s son Rick Murray (Rick), began a one-year residential lease as the tenants of 29 Sutherland Road, Unit 1, in Brighton. The property is owned by 27-29 Sutherland Road, LLC; Aviksis is a manager of the LLC and property manager of the leased unit. The lease provided that the tenants were responsible for all separately metered utilities. Murray executed a guarantee, agreeing, as relevant here, to be responsible for any damage to the property caused by Rick.[3] The lease provided for the landlord’s recovery of attorney’s fees from the tenants in the event of litigation, but the guarantee contract was silent as to attorney’s fees. Unit 1, apparently along with other units on the property, was heated by natural gas, which was separately metered. The tenants did not ask the gas company to put the utility account in their names after they began occupying the unit. Nor did they pay the bill and, eventually, the gas company turned off the gas service to Unit 1, apparently during a period when the tenants were away from the apartment. It was during this time, in early January, 2008, that Unit 1 was damaged when water infiltrated the property. Aviksis alleged that the damage resulted because water pipes froze and […]
Murray to Resign June 2; Patrick Calls Him ‘Outstanding Partner’
Massachusetts Lt. Gov. Tim Murray said none of the controversies that have dogged him during his tenure on Beacon Hill contributed to his decision to announce his resignation. In a press conference at the State House Wednesday, Murray said his final day on the job will be June 2. The next day he will take over as president and CEO of the Worcester Regional Chamber of Commerce where his salary will reportedly be around $ 200,000. In January, Murray said he had no intention of running for governor when Gov. Deval Patrick’s term expires in January 2015. “This has been a very difficult but empowering decision,” Murray said. “It has been an honor to serve as lieutenant governor.” Patrick called Murray an “outstanding partner” during his time in the corner office. Among the accomplishments Patrick touted were his work with the homeless and on domestic violence as well as working closely with government leaders in cities and towns. Murray is also currently the head of the National Lieutenant Governors Association. “He was here, in every way, for the right reasons,” Patrick said. “This is no small loss to our team or for me.” Indeed, there will be no replacement for Murray. Under the current state Constitution there is no mechanism for replacing the lieutenant governor if they leave office before their term ends. Murray said the current investigation into former Chelsea Housing Authority director Michael McLaughlin, who has pleaded guilty to felony charges related to concealing his salary and has ties to Murray, had nothing to do with his decision to resign. “This was a unique and special opportunity that was not going to be there in January 2015,” Murray said. “It builds on everything that I’ve been working on.” Murray said he had no concerns about a possible indictment coming his way in connection with the McLaughlin investigation. Murray was also involved in an early-morning car crash while driving a state vehicle in 2011. He added he was not “actively pursuing” any job when he was approached about the Worcester job and at first was not interested before changing his mind after discussing the idea with his family. Murray would not rule out a run for higher political office at some point in the future. “We’ll see,” Murray said. “I’ve got young kids right now … It takes a toll, (campaigns) are non-stop, frenetic events.” Patrick was asked if the resignation reinforced the idea his administration is entering a “lame duck” phase. “You judge us over the next 18 months and see if we slow down,” Patrick said. “I believe we will show you that […]
Lt. Gov. Tim Murray to Resign
Massachusetts Lt. Gov. Tim Murray will be resigning Wednesday, according to CBS Boston. CBS Boston reported sources saying Murray will leave to become the head of his hometown Worcester Chamber of Commerce, a position that pays over $ 200,000 a year. Murray announced earlier this year he would not run for governor in 2014. Boston.com reports there is no mechanism by which the state Constitution allows for the replacement of the lieutenant governor, meaning Gov. Deval Patrick will be without one until he leaves office in January 2015. As a result, Boston.com reported the next in line of succession for governor is Secretary of State William Galvin. Murray’s tenure as lieutenant governor has been marked with controversy.Boston.com’s report Wednesday mentioned Murray 2011 car crash in a state vehicle as well as ties to former Chelsea Housing Authority director Michael McLaughlin, who has pleaded guilty to felony charges related to concealing his salary. Patch will have more on this story as it becomes available. South End Patch