Posts tagged "Norfolk"

Vinnie v. Superintendent, Massachusetts Correctional Facility, Norfolk (Lawyers Weekly No. 10-044-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12299   RAYMOND P. VINNIE  vs.  SUPERINTENDENT, MASSACHUSETTS CORRECTIONAL INSTITUTE, NORFOLK.     March 21, 2018.     Supreme Judicial Court, Superintendence of inferior courts.     In 1993, Raymond P. Vinnie was convicted of murder in the first degree.  After plenary review, we affirmed the conviction and the denial of his motion for a new trial.  Commonwealth v. Vinnie, 428 Mass. 161, cert. denied, 525 U.S. 1007 (1998), overruled on another ground by Commonwealth v. Paulding, 438 Mass. 1 (2002).  In 2016, Vinnie filed a petition for a writ of habeas corpus pursuant to G. L. c. 248, § 1, in the county court, arguing that he was unlawfully imprisoned pursuant to a void mittimus.  A single justice of this court transferred the petition to the Superior Court.  A judge in that court denied relief.  Vinnie then filed a motion in the county court, seeking to reinstate his petition on the ground that the Superior Court judge made various procedural and substantive errors.  The same single justice denied the motion without a hearing.  Vinnie appeals from that ruling.   The single justice properly denied Vinnie’s motion to reinstate the petition.  The Superior Court judge’s decision denying habeas relief was reviewable in the ordinary appellate process.  After habeas relief was denied in the Superior Court, Vinnie “could have obtained review by this court only if he was granted leave by a single justice pursuant to the gatekeeper provision of G. L. c. 278, § 33E.  He cannot circumvent the gatekeeper provision by filing his petition in the county court in the first instance.”  Tyree v. Commonwealth, 449 Mass. 1034, 1034 (2007), cert. denied, 554 U.S. 926 (2008).  There was no basis to “reinstate” the petition in the county court.   Judgment affirmed.     Raymond P. Vinnie, pro se. Eric A. Haskell, Assistant Attorney General, for the respondent. Full-text Opinions

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Posted by Massachusetts Legal Resources - March 21, 2018 at 3:39 pm

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Connor v. District Attorney for the Norfolk District (Lawyers Weekly No. 12-109-17)

COMMONWEALTH OF MASSACHUSETTS   NORFOLK, ss.                                                                                  SUPERIOR COURT                                                                                                             CIVIL ACTION                                                                                                             No. 14-01322     MYLES J. CONNOR   vs.   DISTRICT ATTORNEY FOR THE NORFOLK DISTRICT   MEMORANDUM OF DECISION AND ORDER ON DEFENDANT’S MOTION FOR RECONSIDERATION   The plaintiff, Myles J. Connor (“Connor”), brought this action for declaratory relief pursuant to G. L. c. 231A, seeking a declaration that he is the owner of certain property (“the Property”) which was seized by the District Attorney for the Norfolk District (“District Attorney”) during execution of a search warrant in 1985.  On June 12, 2017, this Court denied the District Attorney’s motion for summary judgment.  Now before the Court is the District Attorney’s motion for reconsideration.  For the reasons contained herein, the motion for reconsideration is DENIED. BACKGROUND   The facts surrounding how the District Attorney came to possess the Property, and Connor’s efforts to reclaim the Property, have already been described in detail in this Court’s earlier Decision and Order on Defendant’s Motion for Summary Judgment.  Connor v. District Attorney for the Norfolk District, 2017 WL 2979108 (Mass. Super. 2017).  Those facts are incorporated by reference into this decision. The District Attorney has submitted additional exhibits to supplement the summary judgment record.  The additional exhibits include deposition testimony of Kathryn M. Perry-Dougan, who pled guilty to a charge of drug possession following the 1985 search of her apartment where the Quincy police seized drugs as well as the Property. DISCUSSION   A party seeking reconsideration of a prior ruling must show newly discovered evidence, a change of circumstances, a change of law, or a plain error of fact or law in the original ruling.  See Mass. R. Civ. P. 60(b); Audubon Hill South Condominium Assoc. v. Community Assoc. Underwriters of Am., Inc., 82 Mass. App. Ct. 461, 470 (2012).  The District Attorney has shown none of these, nor has explained why arguments made in its motion for reconsideration were not made earlier. In its motion, the District Attorney re-hashes its argument that the doctrine of laches applies to Connor’s claim.  The District Attorney has failed to point out any reason that would require reconsideration on this point.  Fundamentally, the District Attorney’s argument remains flawed in that it is premised on the notion that the burden of initiating action in this case rested on the Plaintiff.  It did not – the law places that burden squarely on the shoulders of the District Attorney.  The District Attorney’s attempts to shift that burden are plainly misplaced.  Even were the Court to leave this point aside and reconsider the laches argument, it would still conclude that the District Attorney is not entitled to prevail on summary judgement on this record.  “Laches is […]

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Posted by Massachusetts Legal Resources - August 18, 2017 at 2:10 am

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Bishay, et al. v. Clerk of the Superior Court on Norfolk County (Lawyers Weekly No. 10-018-17)

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-12153   BAHIG BISHAY & others[1]  vs.  CLERK OF THE SUPERIOR COURT IN NORFOLK COUNTY.     January 23, 2017.     Mandamus.  Clerk of Court.  Judgment, Implementing settlement agreement.  Practice, Civil, Action in nature of mandamus, Entry of judgment.     Bahig Bishay commenced an action in the Superior Court, bringing various claims against National Investigations, Inc., and its principals, Glenn Gillis and Garry Gillis (collectively, National); Harvard 45 Associates, LLC, and its principals, Harold Brown and Enrique Darer (collectively, Harvard); and Allied Finance Adjusters Conference, Inc. (Allied), arising from Bishay’s eviction from his home.  More particularly, Bishay sought damages on various theories for the removal and storage of his personal property in the course of the eviction.  Allied’s motion to dismiss the claims against it was allowed, as was Harvard’s motion for summary judgment as to both the claims against it and a counterclaim it asserted against Bishay.  Bishay and National thereafter reported that they settled their dispute, and they moved for entry of final judgment.  Harvard and Allied opposed the motion, and a judge in the Superior Court denied it.  Bishay again moved for entry of final judgment.  Harvard and Allied opposed that motion, and a different judge denied it.  Bishay and National (collectively, petitioners) jointly filed a petition in the county court seeking relief in the nature of mandamus pursuant to G. L. c. 211, § 3, and G. L. c. 249, § 4, specifically requesting that the clerk of the Superior Court be ordered to enter final judgment as the petitioners proposed.  Harvard moved to intervene and filed an opposition, joined by Allied, in which it argued that the proposed judgment was collusive and fictitious, adverse to the interests of Harvard and Allied, and contrary to the prior ruling on summary judgment.[2]  A single justice of this court denied relief without a hearing.  The petitioners appeal.   The case is before us pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), which requires the petitioners to “set forth the reasons why review of the trial court decision cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other available means.”[3]  The petitioners have not done so.  They argue that requiring them to proceed to a jury trial would be wasteful in these circumstances, as they have in fact resolved their dispute.[4]  […]

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Posted by Massachusetts Legal Resources - January 23, 2017 at 10:07 pm

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Shipps v. District Attorney for the Norfolk District (Lawyers Weekly No. 10-111-15)

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-11733   WILLIAM M. SHIPPS, JR.  vs.  DISTRICT ATTORNEY FOR THE NORFOLK DISTRICT. July 6, 2015.     Declaratory Relief.  Practice, Criminal, Capital case, Sentence.     William M. Shipps, Jr., filed a complaint in the county court in 2014, pursuant to G. L. c. 231A, seeking a declaration that his sentences for murder in the first degree under G. L. c. 265, § 2, as amended by St. 1979, c. 488, § 2, which were imposed thirty years earlier, are unconstitutional.  A single justice of this court dismissed the complaint.  We affirm.   In 1984, Shipps was convicted of two indictments charging murder in the first degree and other crimes.  He was sentenced on the murder convictions to two consecutive life terms in State prison without the possibility of parole, and to four concurrent life terms on the remaining convictions.  Commonwealth v. Shipps, 399 Mass. 820 (1987).  Thereafter, Shipps filed three motions seeking a new trial in the Superior Court, all of which were denied.  Commonwealth v. Shipps, 440 Mass. 1018, 1019 (2003), cert. denied, 541 U.S. 910 (2004).  A single justice of this court denied leave to appeal from the ruling on the third motion, pursuant to the “gatekeeper” provision of G. L. c. 278, § 33E, and we dismissed Shipps’s appeal from that ruling.  Id.   1.  In 2014, Shipps filed a complaint for declaratory relief in the county court, seeking a determination that the imposition of his sentence (indeed, any sentence at all) for his convictions of murder in the first degree violated the ex post facto and due process clauses of the United States Constitution because the sentencing statute applicable at the time of his offenses, G. L. c. 265, § 2, as amended by St. 1979, c. 488, § 2, provided for no penalty other than death, which by the time of his offenses had been ruled unconstitutional.  See District Attorney for the Suffolk Dist. v. Watson, 381 Mass. 648 (1980).  It is well established that declaratory relief ordinarily is not available in the context of pending criminal cases.  Id. at 659.  Similarly, a complaint seeking declaratory relief may not be used postconviction to avoid the gatekeeper provision of G. L. c. 278, § 33E, or to challenge the legality of a sentence by contesting the constitutionality of the statute under which the plaintiff (the defendant in the underlying criminal case) was sentenced.  […]

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Posted by Massachusetts Legal Resources - July 6, 2015 at 11:49 pm

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Barron Chiropractic & Rehabilitation, P.C. v. Norfolk & Dedham Group (Lawyers Weekly No. 10-171-14)

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   SJC-11561   BARRON CHIROPRACTIC & REHABILITATION, P.C.  vs.  NORFOLK & DEDHAM GROUP. Norfolk.     May 5, 2014. – October 15, 2014.   Present:  Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.[1]     Insurance, Motor vehicle personal injury protection benefits, Unfair act or practice.  Contract, Insurance.  Practice, Civil, Summary judgment, Attorney’s fees.  Consumer Protection Act, Insurance.       Civil action commenced in the Dedham Division of the District Court Department on November 25, 2009.   The case was heard by James J. McGovern, J., on a motion for summary judgment.   The Supreme Judicial Court granted an application for direct appellate review.     Francis A. Gaimari (Robert N. Fireman & Stephen B. Byers with him) for the plaintiff. Joseph R. Ciollo (Michael L. Snyder with him) for the defendant. E. Michael Sloman, for Automobile Insurers Bureau, amicus curiae, submitted a brief. Christopher M. Moutain, for American Insurance Association & others, amici curiae, submitted a brief.     LENK, J.  The personal injury protection (PIP) provision of the automobile insurance statute permits an unpaid party to bring an action for breach of contract against an automobile insurer if the latter has not paid PIP benefits for more than thirty days after those benefits became due and payable.  G. L. c. 90, § 34M, fourth par.  If the unpaid party receives a judgment for any amount due and payable by the insurer, it also may recover its costs and reasonable attorney’s fees.  The primary question before us is whether an unpaid party who has brought suit and thereafter refused the insurer’s tender of amounts due and payable, made prior to the entry of judgment, may proceed with the suit and, if successful, obtain a judgment for those amounts as well as its costs and attorney’s fees.  We conclude that it may proceed with the action under G. L. c. 90, § 34M. 1.  Background.  The plaintiff, Barron Chiropractic & Rehabilitation, P.C. (Barron), provided chiropractic services to Nicole Jean-Pierre following her automobile accident on August 20, 2008.  Jean-Pierre was injured while driving a vehicle insured by the defendant Norfolk & Dedham Group (Norfolk) pursuant to G. L. c. 90, § 34A, which requires compulsory motor vehicle liability insurance, including PIP benefits.[2]  See G. L. c. 90, §§ 34A, 34M. Norfolk received notice of the accident on August 22, 2008, and, on October 10, 2008, received Jean-Pierre’s application for PIP benefits.[3] Shortly thereafter, pursuant to its contractual right […]

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Posted by Massachusetts Legal Resources - October 15, 2014 at 8:00 pm

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Norfolk & Dedham Mutual Fire Insurance Company v. National Continental Insurance Company (Lawyers Weekly No. 11-099-13)

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, Pemberton Square, Suite 2500, Boston, MA 02108-1750;  (617) 557-1030; SJCReporter@sjc.state.ma.us       12‑P‑1207                                       Appeals Court   NORFOLK & DEDHAM MUTUAL FIRE INSURANCE COMPANY  vs.  NATIONAL CONTINENTAL INSURANCE COMPANY.       No. 12‑P‑1207.      August 14, 2013.     Insurance, Motor vehicle insurance, Notice, Cancellation.  Motor Vehicle, Insurance.  Registrar of Motor Vehicles.  Notice, Cancellation of insurance.       The question is whether the defendant, National Continental Insurance Company (National), “immediately upon the intended effective date of the cancellation of [an automobile insurance] policy . . . forwarded to the registrar of motor vehicles a notice, in such form as he may prescribe, containing such information to apprise the registrar of the particular motor vehicle registration on which the insurance is intended to be cancelled.”[1]  G. L. c. 175, § 113A(2), as amended by St. 1990, c. 287, § 1.     The facts are these:[2]  National issued a commercial automobile policy to Genivaldo DeSousa on March 7, 2009.[3]  On October 13, 2009, National notified DeSousa that the policy would be canceled effective November 3, 2009, at 12:01 A.M. for nonpayment of premiums.[4]  DeSousa did not pay.  On November 4, 2009, therefore, National notified DeSousa that his policy had been canceled as previously warned.  Two days later, on November 6, 2009, National electronically notified the registry of motor vehicles (RMV) (in a form known as a send report) that DeSousa’s policy had been canceled effective November 3, 2009.  The send report was in the form prescribed by the RMV in the sense that it supplied all the information required by the RMV including, among other things, the correct policy number, vehicle identification number, and license plate number.  However, it incorrectly identified DeSousa as a corporation rather than as an individual.[5]  Three days later, on November 9, 2009, the RMV electronically notified National of the error (in a form known as a return report).  On November 17, 2009, National sent a second send report correctly identifying DeSousa as an individual.  The RMV accepted the corrected send report that same day and accepted the cancellation of DeSousa’s policy effective November 3, 2009.[6]   A few weeks later, on December 7, 2009, DeSousa was in an accident with Eddy Guillaume, who was insured by the plaintiff, Norfolk & Dedham Mutual Fire Insurance Company (Norfolk & Dedham).   Norfolk & Dedham brought the underlying action, pursuant to G. L. c. 175, § 113, and G. L. c. 214, § 3(9), to reach and apply National’s policy in payment […]

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Posted by Massachusetts Legal Resources - August 17, 2013 at 10:04 am

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