In the Matter of Moran, Robert C. (Lawyers Weekly No. 10-068-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12356 IN THE MATTER OF ROBERT C. MORAN. April 20, 2018. Attorney at Law, Disciplinary proceeding, Suspension, Deceit, Drafting of will. The respondent, Robert C. Moran, appeals from an order of a single justice of this court, acting on an information filed by the Board of Bar Overseers (board), suspending him from the practice of law for nine months. We vacate the order and remand the case for the entry of an order suspending the respondent from the practice of law for fifteen months.[1] Background. Bar counsel filed an amended five-count petition for discipline with the board alleging multiple acts of misconduct in connection with the respondent’s handling of the affairs of two elderly clients, both of whom are now deceased. Two counts alleged that the respondent charged excessive fees;[2] that he failed to inform his clients of fees for services rendered and fee withdrawals;[3] that he held the clients’ funds in nontrust accounts;[4] and that he drafted testamentary instruments for both clients that included substantial testamentary gifts to himself.[5] Two other counts concerned the respondent’s conduct as executor for the same clients’ estates. They alleged that the respondent failed to render diligent and competent services;[6] that he charged and collected excessive fees;[7] that he failed to hold estate funds in segregated interest-bearing accounts;[8] that he negotiated and withdrew estate funds before his appointment as executor;[9] and that he intentionally misrepresented, under oath, the amount of estate assets in a probate court filing for one estate.[10] The fifth count charged misconduct in connection with trust accounts and trust funds.[11] The respondent answered and asserted certain facts in mitigation. See S.J.C. Rule 4:01, § 8 (3), as appearing in 453 Mass. 1310 (2009) (“[a]verments in the petition are admitted when not denied in the answer”). A hearing committee of the board conducted an evidentiary hearing and determined that bar counsel had proved, with limited exceptions, the petition’s allegations. A majority of the committee recommended that the respondent be publicly reprimanded; a dissenting member found additional facts supporting violation of Mass. R. Prof. C. 1.8 (c), 426 Mass. 1338 (1998) (substantial testamentary gifts), and recommended a greater sanction. Both the respondent and bar counsel appealed to the board. The board adopted the dissenting hearing committee member’s factual findings concerning the additional misconduct, and the hearing […]
Robert and Ardis James Foundation, et al. v. Meyers (Lawyers Weekly No. 10-055-16)
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-11898 ROBERT AND ARDIS JAMES FOUNDATION & another[1] vs. DANIEL MAXWELL MEYERS. Suffolk. December 10, 2015. – April 21, 2016. Present: Gants, C.J., Spina, Cordy, Duffly, Lenk, & Hines, JJ. Contract, Implied covenant of good faith and fair dealing. Damages, Breach of contract, Sale of stock. Corporation, Stock. Civil action commenced in the Superior Court Department on November 16, 2006. After transfer to the business litigation session, the case was heard by Christine M. Roach, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Joseph L. Bierwirth, Jr. (Ryan P. McManus & Thomas J. Carey, Jr., with him) for the plaintiffs. Kevin P. Martin (Katherine C. Sadeck with him) for the defendant. LENK, J. This case considers whether there was a breach of the implied covenant of good faith and fair dealing in a contract dispute between two sophisticated investors. In 1998 and 1999, Robert James, acting on behalf of the Robert and Ardis James Foundation charitable foundation (foundation), agreed to advance over $ 650,000 to Daniel Meyers, the defendant, to purchase shares of stock in what was then a young, privately held company that Meyers had cofounded, in exchange for a portion of the proceeds of an eventual sale of those shares. The agreement was memorialized in two single-page, non-integrated letters that set out formulas by which to calculate the distribution of proceeds, but did not discuss the timing of sale. In 2006, following nearly two years of unsuccessful efforts to get Meyers to discuss bringing the agreements to a close, the foundation filed a complaint against Meyers seeking specific performance and damages. After a six-day bench trial in the business litigation session of the Superior Court in 2011, a judge found that Meyers had committed a breach of the implied covenant of good faith and fair dealing, and awarded damages based on a date of breach of July 31, 2006.[2] The Appeals Court reversed, see Robert & Ardis James Found. v. Meyers, 87 Mass. App. Ct. 85, 86 (2015), and we granted the foundation’s application for further appellate review. Meyers argues that he did not commit a breach of the implied covenant, and that the damages award should be vacated. We conclude that the trial judge’s decision was not erroneous, and affirm the […]
Robert and Ardis James Foundation, et al. v. Meyers (Lawyers Weekly No. 11-011-15)
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-1169 Appeals Court ROBERT AND ARDIS JAMES FOUNDATION & another[1] vs. DANIEL MAXWELL MEYERS. No. 13-P-1169. Suffolk. March 14, 2014. – February 12, 2015. Present: Cohen, Graham, & Grainger, JJ. Contract, Implied covenant of good faith and fair dealing. Damages, Breach of contract, Sale of stock. Corporation, Stock. Civil action commenced in the Superior Court Department on November 16, 2006. After transfer to the business litigation session, the case was heard by Christine M. Roach, J. Kevin P. Martin (Katherine Sadeck with him) for the defendant. Joseph L. Bierwirth (Thomas J. Carey, Jr. with him) for the plaintiffs. GRAHAM, J. This action arose out of two one-page letter agreements (letter agreements or agreements) between plaintiff Robert James and the defendant, Daniel Maxwell Meyers,[2] in which James agreed to provide Meyers with $ 653,340 for the purchase by Meyers of 31,107 shares of stock in the First Marblehead Corporation, a company cofounded by Meyers. In exchange for supplying Meyers with the funds, James would receive the right to participate in the proceeds of the sale of the 31,107 shares. However, notably absent from each letter agreement was any provision governing its termination or establishing conditions upon which Meyers would be required to sell their stock.[3] In the fall of 2004, James’s daughter, Catherine James Paglia (Catherine[4]), seemingly on behalf of the James family, inquired of Meyers, seeking termination of the agreements. Meyers declined and, on November 16, 2006, the plaintiffs filed a multicount complaint in Superior Court, later amended, asserting claims for division and distribution of the shares (count I), dissolution of a partnership or joint venture (count II), declaration of an agency relationship (count III), breach of an implied term of the contract (count IV), breach of the implied covenant of good faith and fair dealing (count V), payment of a share of the dividends (count VI), and declaratory judgment (count VII). After a six-day bench trial in April, 2011, the trial judge found in favor of Meyers on counts I through IV and VI. She did, however, determine that on July 31, 2006, Meyers breached the implied covenant of good faith and fair dealing (count V). The judge awarded the plaintiffs damages based on the fair market value of the shares of the stock as of the time of the […]
American International Insurance Company v. Robert Seuffer GmbH & Co. KG (Lawyers Weekly No. 10-081-14)
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‑11418 AMERICAN INTERNATIONAL INSURANCE COMPANY[1] vs. ROBERT SEUFFER GMBH & CO. KG. Middlesex. January 7, 2014. ‑ May 14, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Jurisdiction, Personal. Practice, Civil, Affirmative defense, Waiver, Retroactivity of judicial holding. Waiver. Retroactivity of Judicial Holding. Civil action commenced in the Superior Court Department on December 16, 2009. A motion for summary judgment was heard by Douglas H. Wilkins, J. A proceeding for interlocutory review was heard in the Appeals Court by Judd J. Carhart, J., and the case was reported by him to the Appeals Court. The Supreme Judicial Court granted an application for direct appellate review. Patricia E. Antezana, of Pennsylvania (Meghan M. Sullivan with her) for the defendant. John E. O’Brien, Jr., for the plaintiff. LENK, J. The question before us is whether a party may be deemed to have forfeited by its conduct the defense of lack of personal jurisdiction despite having timely asserted that defense in a responsive pleading pursuant to Mass. R. Civ. P. 12 (h) (1), as appearing in 450 Mass. 1403 (2008). American International Insurance Company (AIIC) filed a complaint in the Superior Court against Robert Seuffer GmbH & Co. KG (Seuffer), alleging various theories of products liability. In its answer, Seuffer raised the defense of a lack of personal jurisdiction, but did not move to dismiss the case on that basis. See Mass. R. Civ. P. 12 (b) (2), 365 Mass. 754 (1974). Instead, it pursued litigation on the merits for over eighteen months before filing a motion for summary judgment that was predicated largely on the jurisdictional defense. A Superior Court judge denied the motion, ruling both that while Seuffer did not have the minimum contacts with Massachusetts necessary for personal jurisdiction, its conduct amounted to a waiver of the defense, and that genuine issues of material fact existed as to the merits which precluded the entry of summary judgment. Seuffer appeals from that order. We conclude that, where a party raises the defense of lack of personal jurisdiction in a responsive pleading, the party’s subsequent conduct may in some circumstances result in a forfeiture of that defense. The determination whether a party’s conduct will cause it to forfeit the right to contest the court’s jurisdiction is fact specific and must be made […]
In the Matter of Clerk-Magistrate Robert E. Powers (Lawyers Weekly No. 10-076-13)
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‑11292 IN THE MATTER OF CLERK-MAGISTRATE ROBERT E. POWERS. Suffolk. January 8, 2013. ‑ May 10, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Clerk of Court. District Court, Clerk‑Magistrate. Supreme Judicial Court, Removal of clerk of court. Practice, Civil, Proceeding for removal of clerk of court. Due Process of Law. Formal charges filed in the Supreme Judicial Court on December 19, 2011. Peter J. Haley for the respondent. Thomas O. Bean (Robert W. Langlois with him) for Committee on Professional Responsibility for Clerks of the Court. Harry Spence, court administrator for the Trial Court, amicus curiae, submitted a letter. GANTS, J. The Committee on Professional Responsibility for Clerks of the Courts (committee) has filed formal charges against the respondent, Robert E. Powers (Powers), clerk-magistrate of the Barnstable Division of the District Court Department (Barnstable District Court), alleging three counts. In the first count, the committee alleges that Powers “typically arrived one to two hours late, and thus did not contribute to the work of the Clerk’s office or the leadership of his staff during the busiest hour of the office day,” in violation of the Code of Professional Responsibility for Clerks of the Courts (code), S.J.C. Rule 3:12, Canon 3, first par., as appearing in 407 Mass. 1301 (1990).[1] The second count alleges that “Powers has willfully, grossly, and continuously failed to maintain order and decorum in proceedings he presided over and to be patient, dignified, and courteous to litigants, lawyers, staff, judges and others in his official dealings,” thus creating “the perception in the community that the Barnstable District Court is not a place to go to be treated fairly and to receive orderly administration of justice,” in violation of Canons 3 (A) (2) and (A) (3).[2] The third count alleges that Powers was “grossly delinquent in performing administrative duties” and “has willfully, grossly, and continuously failed to promptly issue decisions for matters that are heard by him,” in violation of Canons 3 (A) (5) and (B).[3] After a six-day hearing, a hearing officer found by clear and convincing evidence that Powers had committed the alleged violations of these canons of the code, and concluded that “the public good justifies his removal from office under G. L. c. 211, § 4.” The committee adopted the findings […]