Silva v. Todisco Services, Inc. (Lawyers Weekly No. 09-027-18)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1684CV02778-BLS2 ____________________ CHRISTOPHER SILVA, on behalf of himself and all others similarly situated v. TODISCO SERVICES, INC. d/b/a Todisco Towing ____________________ MEMORANDUM AND ORDER ON PLAINTIFF’S MOTION FOR CLASS CERTIFICATION Todisco Services, Inc., towed Christopher Silva’s motor vehicle without his consent from a private parking lot. This was a “trespass tow,” made at the request of the property owner or manager pursuant to G.L. c. 266, § 120D. Silva alleges that the mileage charge and fuel surcharge imposed by Todisco were illegal because the invoice or tow slip did not include information required by 220 C.M.R. § 272.03, a Department of Public Utilities (“DPU”) regulation that establishes maximum rates for involuntary tows. Silva asserts claims for violation of G.L. c. 93A, declaratory relief, negligent misrepresentation, intentional fraud, and unjust enrichment. Silva has moved to certify a class of plaintiffs whose passenger vehicles were towed without their consent by Todisco, either as a trespass tow or as a “police tow” made at the request of a local police department, and who were assessed similar surcharges without being provided information required by the DPU regulation. Todisco asserts that this action is moot because Todisco tendered payment of the full treble damages Silva seeks for himself under G.L. c. 93A. In the alternative Todisco urges the Court either to deny class certification completely or to certify a narrower class consisting only of people subjected to trespass tows. The Court concludes that Todisco’s attempt to “pick off” the named plaintiff did not moot Silva’s individual claims or the class action. It will allow the class certification motion in part and, in the exercise of its discretion, will certify a class of “trespass tow” plaintiffs for the purposes of the claims asserted under c. 93A and for declaratory relief. But it will deny the motion to the extent that Silva seeks to include “police tow” plaintiffs in the class, and to the extent that he seeks to certify a class with respect to the misrepresentation, fraud, and unjust enrichment claims. – 2 – 1. Effect of Tender to Named Plaintiff. Todisco argues that Silva’s individual claims are moot, and that therefore class certification is inappropriate,1 because Todisco has already tendered the maximum amount of compensation that Silva himself could possibly recover in this action. Silva (or his son acting on his behalf) paid Todisco $ 169.00 to regain his vehicle after Todisco had towed it. In May 2017, almost 20 months after Silva filed this suit, Todisco sent Silva a check for three times that amount ($ 507.00). Todisco said in its cover letter that it tendered this payment “without any conditions and/or restrictions.” Silva responded by saying […]
Silva v. Todisco Services, Inc. (Lawyers Weekly No. 12-006-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1684CV02778-BLS2 ____________________ CHRISTOPHER SILVA, on behalf of himself and all others similarly situated v. TODISCO SERVICES, INC. d/b/a Todisco Towing ____________________ MEMORANDUM AND ORDER DENYING DEFENDANT’S MOTION TO DISMISS Todisco Towing towed Christopher Silva’s motor vehicle without Silva’s consent from a private parking lot in Salem, Massachusetts, to East Boston. The Todisco invoice says this was a “trespass” tow, which presumably means that the vehicle was towed at the request of the property owner or manager because it was parked there illegally in violation of a posted notice. Cf. G.L. c. 266, § 120D. Silva says Todisco charged him $ 169.00, including a $ 90.00 towing charge; a $ 42.00 mileage charge; a $ 35.00 storage charge; and a $ 2.00 fuel surcharge. Silva alleges that the mileage charge and fuel surcharge were illegal because Todisco’s invoice or tow slip did not include information required by 220 C.M.R. § 272.03, a regulation promulgated by the Department of Public Utilities (“DPU”) that establishes maximum rates for towing vehicles. Silva asserts claims for negligent misrepresentation, intentional fraud, unjust enrichment, violating G.L. c. 93A, and declaratory judgment. He also seeks to represent a class consisting of all people whose motor vehicles were towed by Todisco and were charged a mileage fee or fuel surcharge when Todisco did not record the required information on the tow slip. Silva seeks monetary compensation for damages, punitive damages under c. 93A, equitable relief, and declaratory relief on behalf of himself and the putative class members. Todisco moves to dismiss this action on the grounds that Silva lacks standing, the DPU has primary jurisdiction, the statute authorizing a fine for violating the tow charge regulation bars any other relief, the cited regulation did not require Todisco to disclose any information, the claims for misrepresentation and fraud cannot be decided on a class-wide basis, and the claims for misrepresentation and fraud and under G.L. c. 93A are all preempted by federal law. The Court concludes that none of these arguments justifies dismissal. It will therefore DENY the motion to dismiss. – 2 – 1. Standing. Todisco asserts that Silva lacks standing to bring this action because the allegations in the complaint establish that Todisco’s alleged wrongdoing did not cause Silva himself to suffer any injury. This argument is without merit. Todisco correctly points out that the complaint alleges that Nathan Silva went to East Boston to retrieve the towed vehicle and paid the $ 169.00 total charge demanded by Todisco. But the complaint also alleges that Nathan paid the towing charges imposed by Todisco on behalf of Christopher Silva, Nathan was acting as Christopher’s agent, Christopher is the one who actually paid […]
Silva v. Todisco Services, Inc. (Lawyers Weekly No. 12-006-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1684CV02778-BLS2 ____________________ CHRISTOPHER SILVA, on behalf of himself and all others similarly situated v. TODISCO SERVICES, INC. d/b/a Todisco Towing ____________________ MEMORANDUM AND ORDER DENYING DEFENDANT’S MOTION TO DISMISS Todisco Towing towed Christopher Silva’s motor vehicle without Silva’s consent from a private parking lot in Salem, Massachusetts, to East Boston. The Todisco invoice says this was a “trespass” tow, which presumably means that the vehicle was towed at the request of the property owner or manager because it was parked there illegally in violation of a posted notice. Cf. G.L. c. 266, § 120D. Silva says Todisco charged him $ 169.00, including a $ 90.00 towing charge; a $ 42.00 mileage charge; a $ 35.00 storage charge; and a $ 2.00 fuel surcharge. Silva alleges that the mileage charge and fuel surcharge were illegal because Todisco’s invoice or tow slip did not include information required by 220 C.M.R. § 272.03, a regulation promulgated by the Department of Public Utilities (“DPU”) that establishes maximum rates for towing vehicles. Silva asserts claims for negligent misrepresentation, intentional fraud, unjust enrichment, violating G.L. c. 93A, and declaratory judgment. He also seeks to represent a class consisting of all people whose motor vehicles were towed by Todisco and were charged a mileage fee or fuel surcharge when Todisco did not record the required information on the tow slip. Silva seeks monetary compensation for damages, punitive damages under c. 93A, equitable relief, and declaratory relief on behalf of himself and the putative class members. Todisco moves to dismiss this action on the grounds that Silva lacks standing, the DPU has primary jurisdiction, the statute authorizing a fine for violating the tow charge regulation bars any other relief, the cited regulation did not require Todisco to disclose any information, the claims for misrepresentation and fraud cannot be decided on a class-wide basis, and the claims for misrepresentation and fraud and under G.L. c. 93A are all preempted by federal law. The Court concludes that none of these arguments justifies dismissal. It will therefore DENY the motion to dismiss. – 2 – 1. Standing. Todisco asserts that Silva lacks standing to bring this action because the allegations in the complaint establish that Todisco’s alleged wrongdoing did not cause Silva himself to suffer any injury. This argument is without merit. Todisco correctly points out that the complaint alleges that Nathan Silva went to East Boston to retrieve the towed vehicle and paid the $ 169.00 total charge demanded by Todisco. But the complaint also alleges that Nathan paid the towing charges imposed by Todisco on behalf of Christopher Silva, Nathan was acting as Christopher’s agent, Christopher is the one who actually paid […]
Silva v. Steadfast Insurance Company (Lawyers Weekly No. 11-097-15)
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-987 Appeals Court GARY P. SILVA vs. STEADFAST INSURANCE COMPANY. No. 14-P-987. Hampden. March 5, 2015. – August 7, 2015. Present: Cypher, Kafker, & Green, JJ. Practice, Civil, Summary judgment. Insurance, Unfair act or practice, Settlement of claim. Consumer Protection Act, Insurance, Offer of settlement, Unfair act or practice, Consumer, Businessman’s claim. Civil action commenced in the Superior Court Department on November 14, 2012. The case was heard by Constance M. Sweeney, J., on motions for summary judgment. Mark J. Albano for the plaintiff. Timothy O. Egan for the defendant. KAFKER, J. Gary P. Silva appeals from the entry of summary judgment in favor of Steadfast Insurance Company (Steadfast). In his complaint, Silva claimed that Steadfast violated G. L. c. 176D, § 3(9), and G. L. c. 93A, §§ 2 and 11, by failing to effectuate a prompt, fair, and equitable settlement of earlier litigation arising out of damage to Silva’s business caused by a botched demolition project by Associated Building Wreckers, Inc. (Associated), a company insured by Steadfast. Silva maintains that Steadfast should have made a settlement offer after judgment entered in the earlier litigation even though (1) Silva was appealing multiple aspects of that judgment and seeking to expand the scope of both liability and damages, and (2) postjudgment motions by both Silva and Steadfast to recalculate the amount of damages were ultimately allowed. We affirm. Background. The city of Holyoke hired Associated to demolish an abandoned building that was adjacent to Silva’s property, on which Silva operated his auto body and repair business, S&L Automotive. During demolition, which took place on January 19, 2006, the building collapsed onto Silva’s property and severely damaged his business. Steadfast was Associated’s liability insurer at the time. On December 29, 2006, Silva brought suit in Superior Court against Associated seeking, among other things, damages for his business and property and for personal injuries.[1] At the close of Silva’s evidence in that trial, the judge directed a verdict for Associated on Silva’s nuisance, strict liability, and G. L. c. 93A claims. At the conclusion of the trial on June 21, 2010, the judge awarded Silva $ 366,607.36 on his first breach of contract claim,[2] including damages for building repair, removal, and demolition costs, along with $ 10,000 for personal property damage. The judge ruled in favor of Associated on Silva’s claims for […]
Commonwealth v. Silva (Lawyers Weekly No. 10-094-15)
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-11096 COMMONWEALTH vs. ROBERT SILVA. Plymouth. February 6, 2015. – June 11, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, & Hines, JJ. Homicide. Robbery. Felony-Murder Rule. Joint Enterprise. Search and Seizure, Warrant, Expectation of privacy, Clothing. Constitutional Law, Search and seizure, Privacy. Malice. Intent. Practice, Criminal, Capital case, Motion to suppress, Instructions to jury, Argument by prosecutor, Presumptions and burden of proof. Indictments found and returned in the Superior Court Department on March 23, 2007. A pretrial motion to suppress evidence was heard by Paul E. Troy, J., and the cases were tried before Richard J. Chin, J. Chauncey B. Wood for the defendant. Mary E. Lee, Assistant District Attorney, for the Commonwealth. BOTSFORD, J. The defendant, Robert Silva, stands convicted of murder in the first degree on theories of extreme atrocity or cruelty and felony-murder, and also of armed robbery.[1] He appeals the convictions, arguing that (1) his motion to suppress evidence of his sneakers and evidence derived from blood found on his sneakers was improperly denied; (2) the trial judge erred in instructing the jury on the theory of joint venture liability where the Commonwealth’s exclusive argument was that the defendant was guilty as a principal; (3) the judge also erred in denying the defendant’s request for an instruction on involuntary manslaughter; and (4) the prosecutor improperly shifted the burden of proof in her closing argument. Finally, the defendant argues that he is entitled to relief under G. L. c. 278, § 33E. We affirm the defendant’s convictions. Background. 1. Facts. We summarize the facts that the jury could have found at trial.[2] During the afternoon of June 9, 2004, the defendant and Eric Pimental, both eighteen years old, were walking together on a path in the woods in Wareham. They encountered Thomas Loftus, the victim, who was intoxicated,[3] and they agreed that they would “roll” him.[4] After Pimental knocked the victim down to the ground, both Pimental and the defendant began to kick the victim, and the defendant jumped on the victim’s chest. The defendant later stated to David Belmore, a fellow inmate of the Plymouth County correctional facility (PCCF), “You should have seen [the victim’s] eyes bug out when I jumped on his chest,” and that he and Pimental knew the victim was […]
Silva v. Carmel (Lawyers Weekly No. 10-073-14)
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‑11438 PATRICIA SILVA, guardian,[1] vs. NANCY CARMEL. Middlesex. February 6, 2014. ‑ April 18, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Abuse Prevention. Intellectually Disabled Person. Department of Developmental Services. Words, “Household members.” Complaint for protection from abuse filed in the Newton Division of the District Court Department on May 23, 2012. A hearing to extend the abuse prevention order was had before Dyanne J. Klein, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Frederick M. Misilo, Jr. (Marisa W. Higgins with him) for the defendant. Erin Jordan Harris for the plaintiff. The following submitted briefs for amici curiae: Joseph N. Schneiderman, of Connecticut, & Tara Hopper Zeltner for Association of Developmental Disabilities Providers & another. Donna Morelli, Christina L. Paradiso, Edward M. Ginsburg, & Nathan Morse for Community Legal Aid. IRELAND, C.J. The defendant appeals from an abuse prevention order issued against her pursuant to G. L. c. 209A by a District Court judge based on events that occurred in a residential program under the auspices of the Department of Developmental Services. Because we conclude that individuals who share a common diagnosis or status, rather than marriage, blood, or other relationships that are enumerated in G. L. c. 209A, § 1, and who live together in a State-licensed residential facility, do not qualify as “household members” within the meaning of G. L. c. 209A, § 1, we vacate the order against the defendant. Facts and procedure. The defendant and the victim are intellectually disabled adults who receive services from the Department of Developmental Services (department) in a residential program operated by a third party, Riverside Community Care, with funding from the department. Both individuals have legal guardians, family members in each case, who have been appointed by judges in the Probate and Family Court. The parties do not dispute the following facts that resulted in the complaint for an abuse prevention order: On May 22, 2012, the defendant went upstairs to the hallway outside the victim’s bedroom and, during an ensuing altercation, pushed the victim into the bathroom. As a result of being pushed, the victim suffered injuries to her head, neck, and back when she fell backward into a bathtub. The next day, the plaintiff filed her application for an […]
Silva v. Silva (Lawyers Weekly No. 10-005-14)
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‑11560 ROBERT SILVA vs. HEATHER SILVA. January 10, 2014. Supreme Judicial Court, Superintendence of inferior courts, Appeal from order of single justice. Divorce and Separation, Visitation. Robert Silva[1] appeals from a judgment of a single justice of this court denying, without a hearing, his petition for relief under G. L. c. 211, § 3. We affirm. In connection with divorce proceedings, Robert filed a complaint for contempt against his wife, Heather Silva, alleging that she disobeyed an order of the Probate and Family Court concerning visitation with the parties’ child. After a hearing, a judge in that court found that Heather was not guilty of contempt and entered judgment accordingly. Robert’s G. L. c. 211, § 3, petition sought relief from that judgment. Robert has filed, in the full court, a motion to reconsider, which appears intended as a memorandum and appendix pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001). That rule does not apply, as Robert is challenging a final judgment of contempt, not any “interlocutory ruling in the trial court.” (Emphasis added.) S.J.C. Rule 2:21 (1). “Regardless whether rule 2:21 applies, however, ‘[r]elief pursuant to G. L. c. 211, § 3, is not available where the alleged error or abuse can be adequately and effectively remedied through the normal appellate process or through some other available method of review.’” DeFeudis v. DeFeudis, 449 Mass. 1030, 1031 (2007), quoting Hines v. Superior Court, 423 Mass. 1005, cert. denied, 519 U.S. 984 (1996). It is clear on the record before us that Robert had an adequate remedy in the ordinary appellate process, as he could have taken a direct appeal from the judgment on his complaint for contempt. See, e.g., Freudis v. Hartwell, 80 Mass. App. Ct. 496, 501 (2011) (appeal from judgment that former spouse not guilty of contempt); Ainslie v. Ainslie, 6 Mass. App. Ct. 692, 693 (1978) (immediate appeal, during pendency of divorce proceedings, from judgment of contempt). The fact that Robert claims that he is being prevented from visiting with his child does not mean that the Appeals Court could not resolve the matter fairly and expeditiously. Accordingly, he was not entitled to extraordinary relief. Judgment affirmed. The case was submitted on the papers filed, accompanied by a memorandum of law. Robert Silva, pro se. [1] […]