Institution for Savings in Newburyport v. Langis, et al. (Lawyers Weekly No. 11-023-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 17-P-4 Appeals Court INSTITUTION FOR SAVINGS IN NEWBURYPORT AND ITS VICINITY vs. MATTHEW LANGIS & another.[1] No. 17-P-4. Essex. November 6, 2017. – February 27, 2018. Present: Kinder, Desmond, & Sacks, JJ. Judgment, Default, Relief from judgment. Practice, Civil, Default, Relief from judgment. Civil action commenced in the Superior Court Department on December 19, 2014. A motion for relief from judgment, filed on February 26, 2016, was heard by Elizabeth M. Fahey. Eric P. Magnuson (Joseph T. Toomey also present) for the plaintiff. Kevin J. O’Connor for Infinex Investments, Inc. SACKS, J. This appeal raises a question regarding the procedure to be followed when a plaintiff files a properly supported application for default judgment for failure to serve interrogatory answers under Mass.R.Civ.P. 33(a)(4), as appearing in 436 Mass. 1401 (2002), but no final judgment can enter because damages have not yet been determined. The question is whether a defendant seeking relief from the initial action on such an application must satisfy the “excusable neglect” standard under Mass.R.Civ.P. 60(b)(1), 365 Mass. 828 (1974), requiring “unique or extraordinary” circumstances, Feltch v. General Rental Co., 383 Mass. 603, 614 (1981) (quotation omitted), or merely the less demanding “good cause” standard for removal of a default under Mass.R.Civ.P. 55(c), 365 Mass. 822 (1974), i.e., “a good reason for failing to . . . defend in a timely manner and . . . meritorious defenses.” Johnny’s Oil Co. v. Eldayha, 82 Mass. App. Ct. 705, 708 (2012). Our prior decisions strongly suggest, and we now determine, that rule 55(c)’s good cause standard governs. Background. The case arises out of a complaint filed in the Superior Court involving a commercial dispute. On December 18, 2015, after the defendant Infinex Investments, Inc. (Infinex), missed a previously extended deadline for serving interrogatory answers on the plaintiff, Institution for Savings in Newburyport and its Vicinity (IFS), IFS served a final request for answers pursuant to rule 33(a)(3). On January 28, 2016 — the day after Infinex’s final rule 33(a)(4) deadline for serving such answers expired — IFS filed a properly supported “application for default judgment,” pursuant to Mass.R.Civ.P. 33(a)(6), as appearing in 454 Mass. 1404 (2009), which included a request for a hearing on damages, pursuant to Mass.R.Civ.P. 55(b)(2), as amended, 463 Mass. 1401 (2012). IFS’s application and accompanying […]
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McEvoy v. Savings Bank Life Insurance Co. of Massachusetts (Lawyers Weekly No. 12-084-17)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION NO. 2017-1961 BLS1 LESLIE V. McEVOY, individually and on behalf of a class of similarly situated persons, vs. SAVINGS BANK LIFE INSUARNCE CO. OF MASSACHUSETTS MEMORANDUM OF DECISION AND ORDER PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION The plaintiff Leslie V. McEvoy alleges that she holds a participating whole life insurance policy issued by the defendant Savings Bank Life Insurance Co. (SBLI).1 In this action, she seeks to enjoin all SBLI’s policyholders from voting on a proposed conversion of SBLI from a stock life insurance company to a mutual life insurance company. The case came before the court on June 27, 2017 on the plaintiff’s motion for a preliminary injunction enjoining the vote until additional disclosures concerning the plan of conversion demanded by her were made to SBLI’s other 480,000 policyholders. In her complaint, the plaintiff alleges that the vote on the plan of conversion is to occur at a Special Meeting of policyholders scheduled for that purpose on June 28, 2017. It appears, however, that voting has actually been underway for weeks. While the meeting was scheduled for 11:00 AM on June 28, 2017, and policyholders present at the meeting who had not previously voted could vote at that time, voting opened on May 19, 2017 and could be accomplished by mail, phone call, or on the internet, so long as the votes were 1 It appears that the plaintiff owns two policies, each in the face amount of $ 1,000, although was is pledged to a division of the State of New Hampshire. 2 received in time to be counted by the time of the meeting. As a result, the majority of votes cast in this election may well have been received by SBLI management before the annual meeting. In consequence, from a practical perspective a motion brought before the court on the afternoon of June 27th to preliminarily enjoin the vote that was to be completed and tallied the following morning was not timely. The proposed conversion of SBLI into a mutual insurance company calls for the SBLI shareholders, 30 Massachusetts banks or banks that had acquired Massachusetts banks, to receive $ 57.3 million in return for their shares in SBLI. This sum is to be financed through the issuance of Surplus Notes. While SBLI and its financial advisers have been working for some time on the sale of these Surplus Note to certain financial institutions, at oral argument the court was informed that the closing on that transaction was still two or three weeks away. In theory, therefore, the court could still issue a mandatory preliminary injunction voiding the vote, which would of course preclude any possibility […]
Brady, et al. v. Citizens Union Savings Bank, et al. (Lawyers Weekly No. 11-025-17)
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 16-P-308 Appeals Court NANCY BRADY, executrix,[1] & another[2] vs. CITIZENS UNION SAVINGS BANK[3] & another.[4] No. 16-P-308. Bristol. December 6, 2016. – March 9, 2017. Present: Green, Agnes, & Desmond, JJ. Probate Court, Attorney’s fees, Trust. Trust, Attorney’s fees. Executor and Administrator, Attorney’s fees. Practice, Civil, Attorney’s fees. Complaint in equity filed in the Bristol Division of the Probate and Family Court Department on July 13, 2011. Following review by this court, 88 Mass. App. Ct. 416 (2015), an award of attorney’s fees, costs, and compensation for professional services was entered by Virginia M. Ward, J. Carol L. Ricker for Dale Eggers. Edwin F. Landers, Jr., for W. Nancy Brady. Ben N. Dunlap for Edwin J. Haznar, Jr. GREEN, J. On remand following our decision in a previous appeal in this case, see Brady v. Citizens Union Sav. Bank, 88 Mass. App. Ct. 416 (2015) (Brady I), the Probate and Family Court judge entered a thorough and detailed written memorandum of decision, in which she reduced from $ 457,902.09 to $ 350,680.80[5] the amount the plaintiffs could recover as reimbursement for fees and costs their decedents incurred in defense of a lawsuit brought against them by the defendant Dale Eggers and her daughter. Eggers has again appealed, contending that (1) the amount of fees is unreasonable in light of the nature and complexity of the underlying litigation; (2) the amount of fees represents an unreasonable proportion of the value of assets held by the Wilson O. Smith Trust (trust); and (3) the judge failed adequately to consider the availability of insurance proceeds as an alternative source of reimbursement. We affirm, addressing Eggers’s arguments in turn.[6] Lodestar method.[7] In determining the amount of a reasonable fee, we consider “the nature of the case and the issues presented, the time and labor required, the amount of damages involved, the result obtained, the experience, reputation and ability of the attorney, the usual price charged for similar services by other attorneys in the same area, and the amount of awards in similar cases.” Linthicum v. Archambault, 379 Mass. 381, 388-389 (1979). Determination of a reasonable fee is in the first instance largely committed to the sound discretion of the trial judge, who is in the best position to evaluate the […]
Brady, et al. v. Citizens Union Savings Bank, et al. (Lawyers Weekly No. 11-152-15)
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-1641 Appeals Court W. NANCY BRADY, executrix,[1] & another[2] vs. CITIZENS UNION SAVINGS BANK[3] & another.[4] No. 14-P-1641. Bristol. June 1, 2015. – September 30, 2015. Present: Sullivan, Maldonado, & Massing, JJ. Probate Court, Attorney’s fees, Trust. Trust, Attorney’s fees. Practice, Civil, Attorney’s fees. Executor and Administrator, Attorney’s fees. Complaint in equity filed in the Bristol Division of the Probate and Family Court Department on July 13, 2011. The case was heard by Virginia M. Ward, J. Philip J. Laffey for Dale Eggers. Edwin F. Landers, Jr., for W. Nancy Brady. Ben Nathan Dunlap for Edwin J. Haznar, Jr. MASSING, J. Defendant Dale Eggers, a beneficiary of the William O. Smith Trust (the trust), appeals from a decree issued by a judge of the Probate and Family Court awarding attorney’s fees, costs, and compensation for professional services to be paid to the plaintiffs from trust funds. The plaintiffs’ petition to the court claimed that their decedents (the trustees) had rendered legal and accounting services to the trust and had incurred expenses in their defense of a lawsuit that Eggers initiated against them in connection with their duties as trustees. The amount of the award was nearly sixty percent of the value of the trust at the time of the petition. While we do not reach the question of the reasonableness of the award, we remand the case for the judge to “undertake a more specific and searching analysis of the actual requests for fees and costs submitted than the record suggests took place.” Matter of the Estate of King, 455 Mass. 796, 809 (2010) (King). Background. Eggers’s father, Wilson O. Smith, established the trust in 1987. Among the beneficiaries were Smith’s wife, Betty Georgas (who was not Eggers’s mother), Eggers, and Eggers’s children. In December, 2006, Eggers and one of her daughters initiated a lawsuit in the Probate and Family Court against the trustees, Thomas T. Brady and Edwin J. Haznar, alleging breach of fiduciary duty in their 1994 conveyance of a Florida property out of the trust to Georgas (the prior action). After nearly four years of litigation, on November 8, 2010, summary judgment entered in favor of the trustees. Among the grounds for judgment was that the prior action was barred by the statute of limitations because Eggers […]
Retiring at 50: Could You Follow This Woman’s Extreme Savings Plan?
Americans may be living longer, but our retirement plans aren’t keeping up. Which means people are living longer with smaller bank accounts. But Marlene Konkoly will retire at age 50. How did she do it? She contributes a whopping 45 percent of the gross annual income she earns as a procurement officer for an automotive finance company to her retirement—all while owning a home and remaining debt-free. Konkoly is actually well ahead of the retirement savings curve compared to many of her fellow Americans. According to the U.S. Department of Labor, fewer than half of Americans even know how much money they would need to retire. And nearly a third of employees who had access to a defined contribution plan such as a 401(k) did not participate in it. “Save at least what your employer matches in your 401(k),” Konkoly said. “It’s like saying no to free money if you don’t.” Konkoly, who lives in Royal Oak, MI, said she started saving at 22—but only because other people said she should. She saved a mere 2 percent at her first job out of college. “I didn’t think I could afford much. I didn’t have any understanding of savings and how it would affect my future,” she said. $ 17,000 in Debt At 27, she had $ 17,000 in credit card debt—but this became a turning point in her financial history. “I made the decision right then to get myself out of debt,” she said. “I took on extra work where I could. I started to learn how to research purchases before I bought items, and I began budgeting for the first time ever. I successfully eliminated my debt five years later.” Once she was out of credit card debt, Konkoly, who is single and has no children, turned her focus to her golden years. “I started to see people around me who simply could not afford to ever retire,” she said. “I knew I didn’t want to be in that position, so I started applying the same principles which got me out of debt toward saving more for retirement.” How She Got Smart Konkoly decided to get smart: She took graduate classes in personal finance to understand her portfolio and learn about retirement savings. She reads books, researches on the Internet and follows blogs about saving and investing. And she works with a financial adviser she trusts. “Just because I can do it myself doesn’t mean I have to,” Konkoly said. “Having a professional adviser allows me to focus on other parts of my life without the time commitment of constantly researching the market.” Maxing Out Her 401K Konkoly “maxes […]