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Newton Presbyterian Church, et al. v. Smith, et al. (Lawyers Weekly No. 09-048-17)

SUCV2017-0804-BLS 2
Third Party Plaintiff,
Third Party Defendant
This action arises from a dispute over the ownership of property of the Newton Presbyterian Church (“NPC”), a member of the national Presbyterian denomination known as the Presbyterian Church (USA) (the “PCUSA”). In January 2017, a breakaway faction within the NPC led by the individual defendants conducted a vote purporting to effect the departure of NPC from the Presbyterian Church in order to affiliate with a conservative evangelical organization called the Evangelical Covenant Church (“ECC”). Calling themselves the “Newton Covenant
1 Carmen Aldinger, Anders Brownworth, Thomas Devol, Harold Jones, Doris Kellom, Kristen Lucken, Roger Mark, Rosalind Picard, Daniel Romaine, Beatrice Yankey and the Newton Covenant Church.
Church” (“NCC”), the defendants assumed control over NPC’s bank accounts and other property, including the church building located at 75 Vernon Street in Newton.
The Presbytery of Boston is the governing body for all PCUSA member churches in the greater Boston area, including the NPC. Pursuant to PCUSA’s Constitution (which includes provisions to deal with schisms within congregations), the Presbytery has determined that the loyal Presbyterian members of the NPC are the “true church” and that the NCC members controlled by the breakaway faction are no longer members of the NPC, with no power to control NPC property. This lawsuit seeks enforcement of this determination together with damages. The matter is now before the Court on plaintiffs’ Motion for Partial Summary Judgment on Count I seeking declaratory relief. This Court concludes that the motion must be Allowed, for following reasons.
In support of their motion, plaintiffs primarily rely on documents, the authenticity of which is not in question. Those documents together with other undisputed facts reveal the following. 2
A. The PCUSA Hierarchical Structure
The PCUSA is a Protestant Christian denomination consisting of congregations and a hierarchy of four governing councils that make up “one church.” The four governing councils are — in ascending order–the session, the presbytery, the synod, and the General Assembly. A session, elected by a congregation, governs at the congregational level. A presbytery, made up of clergy and elders from congregations in a specific geographical area, governs the churches in
2 Although purporting to dispute most of the facts cited in the Rule 9(A)(b)(5) statement proffered by the plaintiffs, the defendants do not cite to any facts in the summary judgment record nor do they allege any particular facts to show that a genuine dispute indeed exists.
a specific locality. A synod, made up of members of presbyteries within a region, governs the presbyteries in a multi-state region. The General Assembly governs the 16 regional synods at the national level. The acts of each council are subject to review by the next higher council.
A central tenet of the denomination is “connectionalism,” with all member congregations and governing councils agreeing to conduct worship in accordance with the PCUSA Constitution (the Constitution). 3 The Constitution consists of the Book of Confessions and the Book of Order, which contains the church governance provisions. See Ex A of Joint Appendix. The Constitution defines the jurisdiction of each council, with powers not mentioned expressly reserved to the presbyteries. A congregation as described in the Constitution “refers to a formally organized community chartered and recognized by a presbytery” and governed by the Constitution. Members of the congregation put themselves under the leadership of the session and the higher councils. A congregation may not hire a new minister or terminate that relationship without its presbytery’s approval.
This hierarchical decision-making structure is, as stated in the Constitution, “applicable to all matters pertaining to property.” As to ownership of that property, the Constitution contains a Trust Clause, which states:
All property held by or for a congregation, Presbytery, a synod, the General Assembly or the Presbyterian Church (U.S.A.) whether legal title is lodged in a corporation, a trustee or trustees, or an unincorporated association, and whether the property is used in programs of a congregation or of a higher council retained for the production of income, is held in trust nevertheless for the use and benefits of the Presbyterian Church (U.S.A.)
3 The Constitution states: “The mutual interconnection of the church through its councils is a sign of the unity of the church. Congregations of the Presbyterian Church (U.S.A.) while possessing all the gifts necessary to be the church are nonetheless not sufficient in themselves to be the church. Rather they are called to share with others both within and beyond the congregation the task of bearing witness to the Lordship of Jesus Christ in the world.” Ex A of Joint Appendix.
Ex A of Joint Appendix at G-4-0203. This Trust Clause was in direct response to the Supreme Court’s holding in Jones v. Wolf, 443 U.S. 595, 603 (1979), discussed infra. The PCUSA’s predecessor organization, based primarily in the northern United States, added this clause in 1981. After it combined with the Presbyterian denomination based primarily in the southern United States, the General Assembly of the PCUSA approved the clause for inclusion in the PCUSA Constitution.
In addition to this Trust Clause, the Constitution limits a congregation’s right to sell, encumber, or mortgage its real property without written permission of the presbytery. When a congregation is formally dissolved or becomes extinct, its property “shall be held, used, and applied for such uses, purposes, and trusts as the presbytery may direct, limit and appoint” or it may be “sold or dispose of as the presbytery may direct.” In the event of a schism within the congregation, the Constitution sets forth a process for determining which of the factions is entitled to the property, stating that if there is no reconciliation or division into separate congregations, “the presbytery shall determine if one of the factions is entitled to the property because it is identified by the presbytery as the true church within the Presbyterian Church (U.S.A.).” The Constitution expressly states that this determination does not depend on which faction received the majority vote within the congregation at the time of the schism.
B. The Presbytery of Boston and the NPC
The Presbytery of Boston (the Presbytery) was incorporated in 1888 for the purpose of holding church property in the event that a congregation “shall cease to carry out the purposes for which it was originally created.” See Ex. C of Joint Appendix. Ten years later, NPC was incorporated and has continued its membership in the PCUSA and the governing councils ever since. Its
Articles of Incorporation state that “the purpose for which the corporation is committed is the establishment and maintenance of the public worship of God in accordance with the principles and doctrines of the [PCUSA].” In 1956, NPC adopted corporate Bylaws, which have been amended over the years. See Ex. BB, as adopted October 5, 2008. The Bylaws provide that members of the corporation are those who are “in full communion of the Newton Presbyterian Church.” Article 2 of Bylaws, attached as Ex BB of Joint Appendix. “A member of this corporation who shall for any cause cease to be a member in full communion of the Newton Presbyterian Church shall forthwith cease to be a member of this corporation and shall forfeit and lose all claims and rights to the [sic] all the privileges, franchises and property of the corporation.” Article 2 of Bylaws, Ex. BB.
NPC has at various times recognized the authority, participated in and benefited from the hierarchical structure of PCUSA. It has submitted its session minutes to the Presbytery for annual review, elected and sent delegates to Presbytery meetings, and paid annual fees. Members of the NPC session, known as “ruling elders,” take an oath as required by the Constitution in which each vows to be governed by PCUSA polity and to abide by its principles. Pursuant to its Bylaws, the powers of NPC’s Board of Trustees are “subject to the regulations in the Constitution” of the PCUSA.
The NPC has over the year’s also demonstrated familiarity with PCUSA policies concerning property. It has received loans from the Presbytery for property-related projects, and in 1986 asked for and received approval from the Presbytery to purchase a home for its pastor. In seeking that approval, the Financial Secretary of the NPC stated: “It is our understanding from the Book of Order, sect. G-8-0501 that both the purchase and the mortgage must have written Presbytery approval before they can be consummated.” A similar acknowledgement was
contained in a filing with the Registry of Deeds related to that purchase. In allowing the Presbytery to host meetings at the church in 1988, the NPC noted “we are basically stewards of facilities which have been given to us for the use of the wider church and community.” In 1989, the congregation followed the Presbytery’s advice not to convert the church property into an historic building because PCUSA “buildings need to be plastic enough to meet the needs of our mission today and tomorrow.” At its September 2015 Fall Congregational Meeting, the session recognized that “PCUSA polity is that NPC holds the building in trust for the Presbytery.” Even more recently, at its April 2016 Called Meeting of the Session, the session again recognized that NPC “can’t leave with property” of the PCUSA.
C. The Schism
The genesis of the dispute that cause the schism within the Newton congregation stems from a 2011 vote by a majority of the presbyteries approving an amendment to the Constitution allowing LGBT members to be ordained. In 2015, the majority of presbyteries approved another amendment permitting same-sex marriage in PCUSA churches. These two amendments were among the issue that led the NPC session to begin what the governing documents describe as a “denominational discernment process.” That is a process by which congregations can seek dismissal from the PCUSA to another “Reformed” denomination within the Protestant tradition. Under the Constitution, the relationship between a congregation and PCUSA “can be severed only by constitutional action on the part of the presbytery.”
In accordance with this constitutional process, the Presbytery of Boston assigned a Response Team to NPC in September of 2015 to discuss next steps, to investigate the conflict within the congregation, and to provide for the Presbytery a final report, including recommendations regarding dismissal. The NPC session originally considered seeking dismissal to the Evangelical
Covenant Order of Presbyterians (ECO). ECO is a denomination in the Reformed tradition. It then considered dismissal to the more conservative Evangelical Covenant Church (ECC), which does not permit same-sex marriage or ordination of gay men or women. The Response Team informed the session that the Presbytery would be unable to dismiss NPC to the ECC denomination because ECC is not a Reformed denomination as required by Article 13.3 of the PCUSA Constitution.
In October of 2016, the Presbytery, at the request of some members of the NPC congregation and pursuant to the Constitution, appointed an Administrative Commission to oversee the situation and determine if the congregation was in schism. In early January 2017, the Administrative Commission learned that the NPC session planned to hold a vote to “withdraw” from the PCUSA, affiliate with the ECC and amend NPC’s bylaws. The Administrative Commission wrote a letter to the NPC congregation stating that this change of denominational affiliation could be effected only by a vote of the Presbytery. Certain members of the NPC, led by the individual defendants, nevertheless held a putative vote on January 15, 2017 purporting to change NPC’s denominational affiliation from the PCUSA to the ECC. A majority of congregation members present voted in favor.
After the vote, the Administrative Commission informed the NPC Session that all who voted to leave PCUSA were no longer members of NPC. It also determined on behalf of the Presbytery that the NPC members who wanted to remain members of the PCUSA constituted the “true church,” or the “true” NPC. The Presbytery instructed former NPC members, including the individual defendants, to “refrain from taking any action purporting to affect the ownership, possession, use or status of the church property” or to change NPC’s name. The breakaway
faction has ignored these directions, and has changed signage at the building at 75 Vernon Street to the “Newton Covenant Church” where it conducts religious services. This lawsuit ensued.
Before turning to the legal arguments made in support of and against the motion, this Court addresses the defendants’ assertion that this motion is premature. They note that that this Court (Salinger, J.) limited discovery in this case to the exchange of documents, thus preventing them from taking depositions or conducting third party discovery. They argue that it would be unfair for this Court to decide this case based on affidavits of individuals they have not had a chance to question. The problem with this argument is that the issues raised by the instant motion can (and should) be decided based on documents, which speak for themselves. Although providing the Court with context, the affidavits are unnecessary. Moreover, the defendants fail to identify any genuine fact dispute that would preclude summary judgment. Indeed, even their replies to the Statement of Undisputed Material Facts go no further than the bare assertion that the fact is “disputed.” This is simply not enough. This Court therefore turns to the legal issues raised by this motion.
The courts have adopted two approaches to resolve church property disputes. The first is the “ecclesiastical” approach. Where a church has a hierarchical structure and the dispute is one of internal discipline and governance that is intertwined with religious doctrine, then the court must defer to the decision-making processes of the hierarchical church. See Par. Of the Advent v. Protestant Episcopal Diocese of Mass., 426 Mass. 268, 280 (1997). The second is the “neutral principles” approach. If the dispute does not relate to questions of religious doctrine, discipline or authority, then courts apply traditional judicial methods of interpretation to discern the parties’ intent, examining key documents and evaluating the parties’ behavior. Jones v. Wolf, 443 U.S.
595, 602-603 (1979). The plaintiffs contend that they are entitled to summary judgment under either approach, but with an expressed preference that this Court decides the motion using the ecclesiastical approach. This Court concludes that the question of the right to use and possess NPC property is inextricably intertwined with the question of which individuals hold authority to act on behalf of the church. Applying an ecclesiastical approach, this Court further concludes that plaintiffs are entitled as a matter of law to summary judgment in their favor on Count I of the Complaint.
The instant case is remarkably similar to Episcopal Diocese of Massachusetts, v. Devine, 59 Mass.App.Ct. 722 (2003). Driven by disagreement over certain doctrinal matters, leaders of St. Paul’s Episcopal Parish in Brockton (St Paul’s) took steps to separate from the Diocese of the Protestant Episcopal Church in the United States of America (PECUSA). The Diocese bishop asserted control over the Parish, sought to replace its leaders, and then commenced an action seeking injunctive and declaratory relief when the displaced leaders refused to surrender the church keys. The Appeals Court turned first to the question of subject matter jurisdiction, noting that the First Amendment prohibits civil courts from intervening in disputes concerning religious doctrine or internal organization. “Massachusetts courts traditionally have resolved the question of jurisdiction by examining the structure of the religious organization to determine whether it is hierarchical or congregational, or a combination of both.” Id. at 726. The Appeals Court reasoned that, if the religious organization is hierarchical in structure, courts presented with an internal church dispute generally are without authority to second guess the determination of the matter by the church’s highest ecclesiastical authority. Id. That the court must defer to authority does not mean the court is without jurisdiction, however. Quoting Jones v. Wolf, 443, U.S. at 602, the Appeals Court noted that the “State has an obvious and legitimate interest in the
peaceful resolution of property disputes and in providing a civil forum where the ownership of church property can be determined conclusively.” Id. at 728. Thus, a request by ecclesiastical authorities for civil enforcement of their decision is quite properly within the court’s jurisdiction.
The Appeals Court in Devine then turned to whether the PECUSA was hierarchical in structure, and concluded that it was. It noted that PECUSA and its affiliated dioceses and parishes were governed by a national constitution and canons. The Bylaws of St Paul’s were subject to that constitution and acknowledged the authority of the PECUSA and the Diocese of which it was a part. The question of who had the right to use and possess the church property was “inextricably intertwined with the question of which individuals hold authority to act on behalf St. Paul’s (a question that essentially depends on the authority of the Diocese and its bishop over the mission or parish).” Id. at 728. Affirming the lower court’s decision to award declaratory and injunctive relief to the Diocese, the Appeals Court concluded that such relief was “necessary to enforce the ecclesiastical determination.” The same conclusion is compelled here.
The PCUSA is undisputedly a hierarchical church. Indeed, the Supreme Court has recognized it as such. See Jones, 443 U.S. at 597- 598. It has a national constitution that defines the powers of the four governing councils. All member congregations and governing councils agree to conduct worship in accordance with the Constitution. Those councils operate on a hierarchical basis: each higher council has the power to review and change the actions of the lower one. At the lowest tier is the session, elected by the congregation of the particular church. A congregation may not make important decisions – like hiring a minister or purchase a home for him or her – without the approval of the regional presbytery. As to NPC in particular, its Articles of Incorporation acknowledge the fact that it operates in accordance with the principles of the PCUSA.
As to the particular decision at issue, it involves a decision by one faction of the church to break away and affiliate with another group. The Constitution sets forth a specific process for dealing with this event, empowering the Presbytery of Boston to determine the “true church” and thus to decide who is entitled to the church property. The defendants’ decision to form a new church is the result of their disagreement with PCUSA’s position on same sex marriage and LGBT ordination. The Presbytery’s determination is therefore inextricably intertwined with religious doctrine. To set aside that determination would entangle this Court in what is essentially a religious controversy, which is prohibited by the First Amendment. This Court nevertheless has the ability to enforce that determination, given the state’s interest in peaceful resolution of disputes even where the litigants are religious institutions.
Although this Court need not consider the alternative “neutral principles” approach, this Court is of the view that even under that approach, the plaintiffs are entitled to a judgment in their favor on Count I. When the Supreme Court first recognized the neutral principles approach as a means to adjudicate church disputes, it provided specific instructions to denominations that sought to ensure that “the faction loyal to the hierarchical church will retain the church property. “ Jones, 443 U.S. at 606. It instructed such denominations to “recite an express trust in favor of the denominational church” in the “constitution of the general church.” That is precisely what the PCUSA did. Pursuant to its Constitution’s Trust Clause, all property held by NPC is held in trust for the use and benefit of PCUSA. Other documents support the conclusion that NPC holds its property in trust for the PCUSA. Those documents include the Presbytery of Boston’s and NPC’s Article of Incorporation. That the deed to 75 Vernon Street does not itself contain similar language is irrelevant. See Devine, 59 Mass.App.Ct. At 732. Finally, the individual members of the NPC congregation have over the years acknowledged the
fact that the NPC must get Presbytery approval before making any decisions with respect to property That understanding was expressed as recently as 2015 and 2016.
Defendants rely on an a 1982 legal memorandum that advised NPC that it retained its property regardless of the Trust Clause in the Constitution but recommended nonetheless that NPC change its Bylaws to reflect its understanding that NPC, not PCUSA, controlled church property. The recommendation was adopted and a provision in the Bylaws was added stating: “[u]nless subject to a specific trust expressed by the donor, property received and held…by this Corporation is held by it in trust for religious purposes and will be applied, subject to that trust, in accordance with the wishes of the membership. “ Article 14 of Bylaws, Ex. BB. This Court is not bound by the legal opinion of a third party, which on its face appears to be wrong in its analysis. Moreover the Bylaw acknowledges that the powers of the Board of Trustees, including the power to control property, are subject to the Constitution. Finally, even without that acknowledgement within the Bylaws, NPC’s Article of Incorporation requires it to operate in accordance with the principles and doctrines of the PCUSA. It thus would not have the authority to amend its Bylaws in a way which would conflict with those principles. See Primate and Bishops’ Synod of Russian Orthodox Church Outside Russia v. Russian Orthodox Church of the Holy Resurrection, Inc., 35 Mass.App.Ct. 194, 200 (1993). (Where bylaws conflict with articles of organization, the bylaws are subordinate).
For these reasons and for other reasons articulated in the plaintiffs’ Memoranda of Law in support, their Motion for Partial Summary Judgment as to Count I of the Complaint is ALLOWED. This matter is scheduled for a Rule 16 Conference December 21, 2017 at 2:00 p.m.
Janet L. Sanders
Justice of the Superior Court
Dated: November 16, 2017 read more

Posted by Stephen Sandberg - December 7, 2017 at 12:03 am

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Commonwealth v. Smith (Lawyers Weekly No. 11-138-17)

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;

16-P-406                                        Appeals Court


No. 16-P-406.

Plymouth.     April 5, 2017. – October 27, 2017.

Present:  Meade, Hanlon, & Maldonado, JJ.

Controlled Substances.  Evidence, Expert opinion.  Witness, Expert.

Indictment found and returned in the Superior Court Department on July 11, 2014.

The case was tried before Robert C. Cosgrove, J.

Nancy A. Dolberg, Committee for Public Counsel Services, for the defendant. read more

Posted by Stephen Sandberg - October 27, 2017 at 6:03 pm

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Smith, et al. v. City of Westfield, et al. (Lawyers Weekly No. 10-155-17)

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;


VIRGINIA B. SMITH & others[1]  vs.  CITY OF WESTFIELD & others.[2]

Hampden.     April 6, 2017. – October 2, 2017.

Present:  Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.[3]

Municipal Corporations, Parks, Use of municipal property.  Parks and Parkways.  Constitutional Law, Taking of property.  Due Process of Law, Taking of property.

Civil action commenced in the Superior Court Department on April 27, 2012.

The case was heard by Daniel A. Ford, J. read more

Posted by Stephen Sandberg - October 2, 2017 at 4:58 pm

Categories: News   Tags: , , , , ,

Smith, et al. v. Unidine Corporation (Lawyers Weekly No. 12-097-17)

Nos. 2015-2667 and 2015-3417
consolidated with No. 2016-3297 1
In this action under the Massachusetts Wage Act, G.L. c. 149, §§ 148, 150 (the “Act”),
the employer, Unidine Corporation, and plaintiffs, former employees, cross move for summary
judgment. The principal issue presented is whether the former employees are entitled to recover
for the non-payment of commissions and a bonus. The employer says they are not because of the
terms and conditions of the governing agreement for calculating and paying commissions and
bonuses. The former employees assert that they should be paid the commissions as a matter of
law under the Act.2
The resolution of the motion turns on both the terms and conditions of the written
agreement regarding commissions and bonuses as well as the terms of the Act. The Act requires
1 These actions are consolidated into the lead case, Civil Action No. 2016-3297 BLS1.
The plaintiff in No. 2016-3297 is Correna Lukas. Unidine and Lukas do not move for summary
judgment in the lead case.
2 Plaintiffs also assert claims for breach of contract, breach of the implied covenant of
good faith and fair dealing, and “quantum meruit/unjust enrichment.” All claims are for nonpayment
of commissions or bonus.
the timely payment of wages. Wages include commissions “when the amount of such
commissions . . . has been definitely determined and has become due and payable . . . .” Id. The
terms of the written agreement determine what has been “definitely determined” and what is “due
and payable.”
The following facts, drawn from the parties’ Statement of Undisputed Material Facts, are
Unidine is in the business of providing dining management services to institutional
clients such as hospitals, senior living facilities, universities, etc. Unidine employs Directors of
Business Development (“DBDs”) to sell the services of Unidine and to develop and maintain
relationships with client customers as the contracts with the client customers are performed.
Plaintiffs, Donald Smith and Matthew Ales, were employed by Unidine as DBDs.3
DBDs earn a base salary and are eligible to participate in Unidine’s 2014 Sales
Commission and Bonus Plan (the “Plan”) subject to its terms and conditions. DBDs, including
Smith and Ales, acknowledge and sign the Plan each year. All of plaintiffs’ claims arise under
the 2014 Plan. The Plan applies to contracts with client customers executed in 2014.
Smith began work at Unidine on April 14, 2014, as an at-will employee, in the position of
DBD. He was paid a base salary of $ 125,000 per year, and a signing bonus of $ 25,000. Smith
was terminated from employment on May 29, 2015.
Ales began work at Unidine on January 3, 2012, as an at-will employee, in the position of
3 Signed employment letters in the record indicate that Smith and Ales were employees
at-will and that Massachusetts law governs the agreements.
DBD. His base salary was $ 80,000 per year and was increased to $ 90,000 on January 1, 2015. In
February 2015, Ales voluntarily resigned from Unidine.
The Plan
The Plan provides for the payment of commissions to DBDs subject to its terms and
conditions, based upon obtaining and maintaining for one year a new client account for Unidine.
Under the Plan, “[c]ommissions will be earned ratably over a twelve (12) month period. As such,
commissions will be paid on a monthly basis over the first year following execution (signed by
both parties) of the contract and commencement of service by Unidine.” Plan ¶ E.4 The Plan
further provides that commission payments “shall commence following the end of the first full
month of the account’s operation.” Id.
Paragraph E of the Plan lists a number of contingencies that must occur before the first
commission payment is due. Among those contingencies are the following:
– execution of a signed contract
– planning and execution of a transition meeting by the DBD with the client and
Unidine operations personnel
– development of the first Unidine invoice to the client
– “invoicing and collection of Initial Payment . . . .” Id. at ¶ E 6 (emphasis in
-completion of the Commission Worksheet and Commission Submittal Checklist.
The Plan recognizes that the DBD has a continuing interest in the successful performance
of the contract. For example, the Plan allows the company to terminate commission payments if
the customer fails to pay any Unidine invoice or accrues an account receivable in excess of the
payment terms. Also, if the new account is terminated prior to the completion of twelve (12)
4 This quotation is from the Plan executed by Smith. The Plan executed by Ales is slightly
different. It states “[c]ommissions will be earned and paid ratably over a twelve (12) month
period as described in this section.”
months of commission payments, “any commission payments made will be returned to the
company over the same number of months as paid as well as any bonus payments. During this
period, in the event the Director of Business Development leaves the company for any reason,
any commission and/or bonus balance due the company will be due immediately to the company
and may be used to off-set any compensation due.” Id.5 Moreover, both Smith and Ales testified
in their depositions to the effect that they worked closely with the operations staff and maintained
contact with the customer as part of their jobs.6
Finally, the Plan provides that “[t]o be eligible for Commission Payment or bonus the
participant must be employed by Unidine at the time the Commission Payment or bonus is
processed and paid as described in paragraph E – Commission Payment.” Plan, ¶ B.
With respect to the payment of either a quarterly or annual bonus, the Plan is sparse. In
two paragraphs, reference is made to another, unspecified, “plan” which appears to include goals
for revenue to be generated by the DBD (although there is no definition of how the revenue
targets are set or calculated). If the DBD exceeds the goals by certain percentages (e.g., 125%,
150%, 200%), the DBD is “eligible” for payment of the bonus. The Plan does not explicitly
reserve any discretion to the company or its officers as to whether the revenue goals were met or
5 The application of this provision requiring return of commissions is subject to the
discretion of the officers of the company.
6 In particular, Ales testified that maintaining relationships was “part of my job” and gave
the example of going to the location of a customer (Three Pillars) and staying there for two
months to “smooth things out” when operations were going poorly.
Facts With Respect to Smith
Smith’s sole claim is that he is owed a commission7 with respect to a single customer,
Southeast Missouri Hospital. It is undisputed that Smith was responsible for the sale of services
to the hospital and that he worked to get the operations team set up to have a successful and
smooth start-up and launch. The hospital signed a contract with Unidine on November 24, 2014,
but dining services were not commenced until March 22, 2015. The hospital paid the initial
advance payment on March 24, 2015, and paid the first monthly invoice under the contract on
April 20, 2015. After Smith’s employment was terminated8 on May 29, 2015, Unidine sent Smith
a check in an amount (Smith concedes) that represents the value of two months of commission
payments (April and May). No further commissions were paid to Smith. Accordingly, Smith’s
claim in this lawsuit is for commissions that he alleges would have been paid to him in the ten
months after his termination. In his memorandum in opposition to Unidine’s motion for summary
judgment (and in support of his cross-motion for summary judgment), Smith states “[w]hile
Smith was not employed at the time his commission payment was due, all other contingencies
were satisfied.” Plaintiffs’ Memorandum, p. 10.
Facts With Respect to Ales
Ales claims that he is owed commissions with respect to five (5) client customers of
Unidine. Ales also asserts that he is owed a bonus under the Plan for the year, 2014. The five
7Smith makes no claim for an unpaid bonus.
8 Unidine states that Smith was terminated because Smith failed to pursue a business
opportunity for the company and because of Smith’s weak sales pipeline and disagreements with
senior management. Smith contends that he was not given any reason for his termination. In any
event, Smith does not allege that the termination of his at-will employment was wrongful or
motivated by bad faith.
customers are Wellspring, Cedarbrook, Bethesda, Three Pillars and Presence Health. Unidine
concedes that Ales performed some work to obtain each of these accounts. The undisputed facts
regarding each of the customers, however, are the following.
Wellspring. The contract between Wellspring and Unidine was entered into on
September 30, 2015. Ales voluntarily left the employment of Unidine seven months earlier, on
February 18, 2015. No commission was paid to Ales.
Cedarbrook. While Cedarbrook entered into a contract with Unidine on September 22,
2014, the Cedarbrook facility that was the subject of the contract had not been built. Unidine
began to provide dining services at Cedarbrook on August 10, 2015, six months after Ales left
Unidine. At the time of Ales’ resignation, Cedarbrook had not made its initial payment under the
contract, a first invoice had not been developed and Ales had not completed a transition meeting
or commission worksheet. No commission was paid to Ales.
Bethesda. Bethesda entered into a contract with Unidine on September 30, 2014. Unidine
began providing services on October 18, 2014. Ales earned his first commission on this account
for the month of December 2014. He was also paid a commission on this account for the month
of January 2015. Ales resigned from employment on February 18, 2015, and was not paid a
commission for February or any subsequent month.
Three Pillars. This contract was entered into on February 20, 2014. Services began on
May 1, 2014. Ales was paid his first commission on this account in June 2014. He continued to
receive commission payments through January 2015. When Ales resigned in February 2015, he
was not paid commissions for February or any subsequent month.
Presence Health. Unidine entered into a dining service contract with Presence Health on
January 20, 2014. Ales began receiving commissions on this account in April 2014, and was paid
commissions earned for the months of April through November 2014. In 2014, Presence Health
fell behind on payments owed to Unidine under the contract. Pursuant to paragraph E of the Plan,
commissions were suspended in December 2014 and January 2015 (“Commission Payment shall
terminate at the earlier of any of the following events: . . . 3. Non-payment of any Unidine
invoices by the client during the twelve (12) month term of the Commission Payment.”).
Commission payments did not resume before Ales resigned. No commissions were paid to Ales
on this account after November 2014.
Ales also claims that he earned a bonus in 2014 under the terms of the Plan that was not
paid by Unidine. The dispute on this issue is whether Ales should receive credit for the sale of
the Presence Health account in the calculation of total sales to determine whether a bonus is
owed. Ales admits that without credit for the Presence Health account against his 2014 sales
plan, he does not qualify for any quarterly or annual bonus in 2014. According to the Affidavit of
Steven Servant, Unidine’s Senior Vice President, he informed Ales that the Presence Health sale
would not count toward Ales’ bonus eligibility in 2014. Servant avers that he made that decision
“pursuant to the discretion given me under the Plan.” Servant Aff. ¶ 42. Ales admits that he did
not include the Presence Health sale on his internal monthly reports of business sold in 2014, at
the direction of Servant. Ales denies, however, that he was told that Presence Health would not
be counted for purposes of his bonus calculation.
In sum, Smith seeks payment of commissions in the amount of $ 44,424. Ales seeks
payment of commissions in the amount of $ 139,412, and payment of a bonus for 2014 in the
amount of $ 30,000. To the extent the non-payment of the amounts is found to be in violation of
the Act, any award is subject to automatic trebling, and an award of reasonable attorney fees.
Summary judgment is appropriate where there are no genuine issues of material fact and
the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56(c); Cassesso v.
Commissioner of Corr., 390 Mass. 419, 422 (1983). In this case, the parties cross-move for
summary judgment. Accordingly, both sides assert that there are no disputes of fact
material to the resolution of the motions.
I. Wage Act Claims
The Wage Act, G. L. c. 149, § 148, requires employers to pay employees all earned wages
on a weekly or bi-weekly basis.9 Massachusetts courts generally recognize that the purpose of
this statute is to prevent the unreasonable detention of earned wages by employers. Weems v.
Citigroup, Inc., 453 Mass. 147, 150 (2009). The Wage Act does not, however, define the term
“wages.” Thus, courts have considered various kinds of compensation to determine whether the
compensation should be held to be a “wage” under the Act.
As referenced above, “commissions” are specifically recognized as being covered by the
Act. G.L. c. 149, § 148, ¶ 4. Thus, commissions must be timely paid to an employee “when the
amount of such commissions, less allowable or authorized deductions, has been definitely
determined and has become due and payable.” Id. To be “definitely determined” a commission
must be “arithmetically determinable.” Wiedmann v. The Bradford Group, Inc., 444 Mass. 698,
708 (2005). Commissions are “due and payable” when “any contingencies relating to their
9 The Wage Act includes some exceptions to this general requirement, e.g., executive and
professional employees may request payment on a monthly basis.
entitlement have occurred.” McAleer v. Prudential Insurance Co. Of Am., 928 F. Supp. 2d 280,
288 (D. Mass. 2013)(quoting cases). Accordingly, a court applies the terms of the contract to
determine whether the commission is “definitely determined” and “due and payable.” Gallant v.
Boston Executive Search Assoc., Inc., 2015 WL 3654339, *7 (D. Mass. 2015).
A bonus that is discretionary or contingent upon the employee remaining with the
company for a defined period of time has been held not to be a wage under the Act. Weems, 453
Mass. at 153-154, citing Harrison v. Net Centric Corp., 433 Mass. 465, 466, 473
(2001)(compensation that vests over time is not earned until contingency of continued
employment is met); see also Sheedy v. Lehman Bros. Holdings Inc., 2011 U.S. Dist. LEXIS
131003 (D. Mass. 2011) (where bonus payment is contingent upon continued employment,
payment is not a “wage” under the Act).
A. Claim by Smith
Smith sold services to Southeast Missouri Hospital which made him eligible to receive
commissions. In fact, Unidine paid Smith the commissions owed for the two months following
the date when the commissions first became due and payable. At that point, Smith’s employment
with Unidine was terminated for reasons unrelated to Southeast Missouri Hospital.
Smith argues that commissions are due and payable to him for the following ten months
of the contract with Southeast Missouri Hospital even though he was no longer employed by
Unidine and could no longer provide any ongoing maintenance of the relationship between
Unidine and Southeast Missouri Hospital. He contends that the provision of the Plan that makes
a person ineligible to receive commissions after his employment is terminated is a “special
contract” that is prohibited by the Act. He relies on a recent case decided by the United States
District Court, applying the Act: Israel v. Voya Institutional Plan Services, LLC, 2017 WL
1026416 (D. Mass. 2017). In Israel, the Court granted summary judgment in favor of the
employee holding that commissions earned under the terms of a plan cannot be withheld based
upon the contract provision requiring the employee to be employed at the time of payment.
Unfortunately for Smith, the facts in his case are significantly different than the facts of
Voya. The key finding in Voya was that the commissions were “definitely determined” and “due
and payable” for past services provided before the termination of employment. Id. at *7. That the
commissions were not paid (as opposed to payable) at the time of the employee’s termination of
employment was because of the plan’s provision mandating payment following the third month
“after the month that production activity occurred.” Id. at *2. Thus, the Court found that the Act
prohibits a contract provision that would relieve an employer of the obligation to pay an earned
commission based solely on whether the employee remained employed on the date the company
elects to issue payment. In contrast to Voya, Smith’s claim fails because the commissions he
seeks were not earned and therefore were not “due and payable.”10
The Plan provides that commissions are earned ratably over a twelve month period. The
dictionary meaning of “ratably” is “apportioned.” Webster’s Ninth New Collegiate Dictionary
(1991). Giving the words of the contract their common sense meaning, it is beyond argument
that commissions were “earned” by the DBD each month as he performed or was available to
perform services in aid of the contract. This reading is consistent with the testimony of Smith and
10 Likewise, Perry v. Hampden Engineering Corp., 90 Mass. App. Ct. 1109 (2016) (Rule
1:28 Memorandum and Order), relied upon by plaintiffs, is inapposite. The commission payment
recovered in Perry was earned, and thus due and payable, prior to the date of termination of
Ales as to their ongoing obligations to the client customers. Likewise, Unidine’s Senior Vice
President (Steven Servant) described in his affidavit the ongoing responsibilities of a DBD as the
reason for requiring the commissions to be earned ratably over the twelve month period. Finally,
the Plan’s terms regarding the suspension of commissions when the client customer fails to pay
invoices and the possible retrieval of paid commissions if the new account is terminated during
the twelve month period further support the conclusion that commissions are earned each month
when, with the ongoing maintenance by the DBD, the customer account is fully performing.
Therefore, under the Plan governing the payment of commissions to both Smith and Ales
a commission is not earned when the DBD is no longer employed. Because there is no earned
commission after the termination of employment, a commission is not “due and payable” as
required for recovery of an unpaid commission under the Act.11 In the case of Smith, that means
that he is not entitled to the commission payments sought in his complaint. Summary judgment
dismissing Smith’s complaint is required.
B. Claim by Ales
Ales claims commissions are owed to him with respect to five client customers. Three of
those customers (Bethesda, Three Pillars and Presence Health) present the identical legal issue
discussed above with respect to Smith. That is that commissions were paid to Ales by
Unidine for the period of time before he terminated his employment. Thus, Ales was paid
11 Unidine advances the additional argument that commissions for months after the
termination of employment of a DBD are also not “definitely determined” as required by the Act.
The argument is based on the possibility that the client customer may change its food
requirements, eliminate a facility or otherwise take steps to reduce its invoice from Unidine. If
the amount collected from the client customer changes, then the commission changes. I view this
as further evidence in support of the conclusion that commissions are earned by the DBD each
month he performs services.
commissions for what he earned. He seeks, however, to be paid for commissions for the time
after he stopped performing services to Unidine and its client customers when he left the
employment of Unidine. Because such unpaid commissions were not earned and, therefore, not
“due and payable” there can be no recovery under the Act.
Ales’ claims for commissions with respect to Wellspring and Cedarbrook also fail. In
both cases, no commissions were earned even for the time before Ales left the company because
the Plan required an executed contract and the commencement of services before a commission
could be earned. Unidine did not have a contract (in the case of Wellspring) and did not begin to
provide services (in the case of Wellspring and Cedarbrook) until after Ales left employment.
Accordingly, Ales’ claims for commissions under the Act must be dismissed.
II. Claims for Breach of Contract, Implied Covenant of Good Faith and Fair Dealing and
Quantum Meruit
A. Commissions
The conclusion that commissions were not earned and due and payable to Smith and
Ales under the terms of the Plan necessarily resolves plaintiffs’ claims for breach of contract. If
commissions were not owed to Smith and Ales under the contract terms of the Plan, there also
cannot be a claim for breach of the implied covenant of good faith and fair dealing because to
allow such a claim would be, in effect, to re-write the partes’ contract. The implied covenant in
every contract protects the parties’ reasonable expectations under the contract but does not
“create rights and duties not otherwise provided for.” Bohne v. Computer Associates Intern. Inc.,
514 F. 3d 141, 143 (1st Cir. 2008), quoting Uno Restaurants, Inc. v. Boston Kenmore Realty
Corp., 441 Mass. 376, 385 (2004). Similarly, “[r]ecovery in quantum meruit presupposes that no
valid contract covers the subject matter of a dispute. Where such a contract exists, the law need
not create a quantum meruit right to receive compensation for services.” Boswell v. Zephyr
Lines, Inc., 414 Mass. 241, 250 (1993).
Smith makes clear in his Third Amended Complaint that he does not allege wrongful
termination of his employment. He avers that “while not terminated in bad faith, [he] was not
terminated with good cause.” Id. at ¶ 45. Moreover, the application of the implied covenant of
good faith and fair dealing as described in Gram v. Liberty Mutual Ins. Co., 391 Mass. 333. 335
(1984) protects only an employee’s right not to be deprived of compensation for past services.
Because plaintiffs were not denied compensation for past services under the terms of the Plan,
their claims for commissions alleging breach of contract, breach of the implied covenant and
quantum meruit fail.
B. Ales’ Claim for Bonus
At oral argument, counsel for Ales stipulated that Ales’ claim for an unpaid bonus does
not arise under the Wage Act. Instead, he maintains this claim under theories of breach of
contract, breach of the implied covenant of good faith and fair dealing, and quantum meruit.
Unlike the claims for unpaid commissions, Ales’ claim for an unpaid bonus raises a
genuine issue of material fact that precludes summary judgment. The fact issue presented is
whether, in the calculation of the bonus for 2014, Ales was entitled to have the company include
the revenue received from the Presence Health account. Unidine admits that if the Presence
Health contract had counted towards Ales’ sales quota, he would have been eligible to receive
bonus payments under the Plan. Unidine argues, however, that its management determined that
Presence Health should not be counted in the bonus calculation and that Ales was so informed.
Ales disputes that he was told that Presence Health would not be counted in his bonus
calculation. In his affidavit, Ales states that “I had no reason to believe that Presence Health
would not be counted towards my bonus threshold.”
Unidine argues that it had the discretion under the Plan to determine which accounts
would be counted for purposes of calculating a DBD’s bonus. When asked at oral argument to
identify the provision in the Plan upon which Unidine relies for such discretion, Unidine’s
counsel pointed to ¶ R:
Amendments, Revisions and Interpretation of the Plan: The President & CEO
of Unidine is the sole interpreter and arbitrator of the general and specific
provisions of the Plan and has the right to amend, withdraw, and modify The [sic] Plan at any time without notice.
As can be seen, this paragraph does not give Unidine the explicit discretion to refuse to pay a
bonus that was otherwise earned under the Plan. To the extent ¶ R attempts to reserve to
management the right to “interpret”, “withdraw” or “modify” the Plan, such power must be
viewed in the light of the implied covenant of good faith and fair dealing inherent in every
The Plan states that DBDs will be “eligible” for quarterly and annual bonus payments by
achieving 100% or more of a certain amount. While not explicitly stated, the amount which is the
base for calculating the bonus appears to be the “gross operating budget” for the client customer.
The Plan states that “[o]nly signed, opened accounts, including add-ons, will count toward
achievement of plan for both quarterly and annual bonuses.” Plan ¶ L. Other then those
conditions, the Plan says nothing further about how the client customer’s “gross operating
budget” is calculated or attributed to a DBD. In sum, the summary judgment record is
insufficient to determine, as a matter of law, whether Ales earned a bonus. Ultimately, whether
Ales is entitled to a bonus will depend on the parties’ understanding of the terms of the Plan and
the reasonable expectations of the parties as to how the bonus calculations were to be made.
Summary judgment must be denied with respect to Ales’ claim for a bonus based on breach of
contract and breach of the implied covenant of good faith and fair dealing.12
Unidine’s motion for summary judgment will be ALLOWED, in part, and DENIED, in
part. The motion is ALLOWED (a) to dismiss all claims by Smith in Civil Action No. 2015-
2667,13 and (b) to dismiss the Wage Act claim and all other claims for unpaid commissions by
Ales in Civil Action No. 2015-3417. The motion is DENIED with respect to the claim by Ales
for an unpaid bonus based upon breach of contract and the implied covenant of good faith and
fair dealing. Plaintiffs’ cross-motion for partial summary judgment is DENIED.
By the Court,
Edward P. Leibensperger
Justice of the Superior Court
Date: July 25, 2017
12 Ales’ bonus claim based on quantum meruit must be dismissed because the claim is
governed by contract principles. York v. Zurich Scudder Investments, Inc., 66 Mass. App. Ct.
610, 619 (2006).
13 Final judgment may enter in Civil Action No. 2015-2667, all claims having been
15 read more

Posted by Stephen Sandberg - August 4, 2017 at 11:22 pm

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Sullivan v. Smith (Lawyers Weekly No. 11-174-16)

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;

15-P-1626                                       Appeals Court


No. 15-P-1626.

Hampden.     September 20, 2016. – December 16, 2016.

Present:  Meade, Carhart, & Kinder, JJ.

Parent and Child, Child support.  Probate Court, General equity power, Notice.  Jurisdiction, Equitable.  Uniform Interstate Family Support Act.  Jurisdiction, Personal.  Due Process of Law, Jurisdiction over nonresident.  Practice, Civil, Service of process.  Notice. read more

Posted by Stephen Sandberg - December 16, 2016 at 6:13 pm

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Commonwealth v. Smith (Lawyers Weekly No. 11-126-16)

Posted by Stephen Sandberg - September 15, 2016 at 10:18 pm

Categories: News   Tags: , , , ,

Smith, et al. v. City of Westfield, et al. (Lawyers Weekly No. 111-08-16)

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;

15-P-773                                        Appeals Court

VIRGINIA B. SMITH & others[1]  vs.  CITY OF WESTFIELD & others.[2]

No. 15-P-773.

Hampden.     April 14, 2016. – August 25, 2016.

Present:  Green, Trainor, & Milkey, JJ.

Municipal Corporations, Parks, Use of municipal property.  Parks and ParkwaysConstitutional Law, Taking of property.  Due Process of Law, Taking of property.

Civil action commenced in the Superior Court Department on April 27, 2012. read more

Posted by Stephen Sandberg - August 25, 2016 at 9:49 pm

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Commonwealth v. Smith (Lawyers Weekly No. 10-034-16)

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;



Worcester.     November 6, 2015. – March 11, 2016.

Present:  Gants, C.J., Cordy, Botsford, Lenk, & Hines, JJ.

Homicide.  Robbery.  Attempt.  Felony-Murder Rule.  Constitutional Law, Admissions and confessions, Assistance of counsel.  Evidence, Admissions and confessions, Videotape.  Practice, Criminal, Admissions and confessions, Assistance of counsel, Capital case.

Indictments found and returned in the Superior Court Department on December 7, 2010. read more

Posted by Stephen Sandberg - March 11, 2016 at 7:08 pm

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Commonwealth v. Smith (Lawyers Weekly No. 10-056-15)

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;



Plymouth.     December 4, 2014. – April 9, 2015.

Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.

Homicide.  Constitutional Law, Waiver of constitutional rights by juvenile, Admissions and confessions.  Evidence, Admissions and confessions.  Practice, Criminal, Admissions and confessions.  Supreme Judicial Court, Superintendence of inferior courts.

Indictment found and returned in the Superior Court Department on August 17, 2007. read more

Posted by Stephen Sandberg - April 9, 2015 at 2:12 pm

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Smith v. Masterlaz (Lawyers Weekly No. 10-014-14)

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;



January 28, 2014.

Civil Harassment. Harassment Prevention. Protective Order. Moot Question. Practice, Civil, Appeal, Moot case, Findings by judge.

The defendant, Steven Mastalerz, seeks review of harassment prevention orders issued against him pursuant to G. L. c. 258E.[1]  The defendant filed his appeal in the Appeals Court prior to our decision in O’Brien v. Borowski, 461 Mass. 415 (2012).  The Appeals Court dismissed his appeal as moot because the harassment prevention order had expired.  Lawrence v. Gauthier, 82 Mass. App. Ct. 904 (2012).  The defendant then filed a petition seeking relief pursuant to G. L. c. 211, § 3, in the county court, and a single justice denied his petition without prejudice on August 17, 2011. read more

Posted by Stephen Sandberg - January 28, 2014 at 11:56 pm

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