WorldWide TechServices, LLC v. Commissioner of Revenue, et al. (and three consolidated cases) (Lawyers Weekly No. 10-032-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12328 WORLDWIDE TECHSERVICES, LLC vs. COMMISSIONER OF REVENUE & another[1] (and three consolidated cases[2]). Suffolk. November 7, 2017. – February 22, 2018. Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker, JJ. Taxation, Abatement, Sales and use tax. Practice, Civil, Abatement, Intervention. Administrative Law, Intervention. Due Process of Law, Intervention in civil action. Appeal from a decision of the Appellate Tax Board. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Edward D. Rapacki for the intervener. John A. Shope (Michael Hoven also present) for the taxpayers. Daniel J. Hammond, Assistant Attorney General (Daniel A. Shapiro also present) for Commissioner of Revenue. Ben Robbins & Martin J. Newhouse, for New England Legal Foundation, amicus curiae, submitted a brief. KAFKER, J. Fifteen years and three Supreme Judicial Court decisions ago, this protracted case commenced regarding taxes imposed on computer service contracts. The litigation began when purchasers of the service contracts filed a putative class action against the sellers,[3] claiming under G. L. c. 93A that the imposition of these taxes was unlawful and an unfair and deceptive practice. The sellers successfully moved to compel arbitration pursuant to the terms of the computer service contracts, and a judge in the Superior Court eventually confirmed the award. The next chapter in this tax saga, and the one we are required to decide today, then ensued. For the sole and express purpose of hedging their bets in response to the class action, the sellers had applied for tax abatements from the Commissioner of Revenue (commissioner) beginning in 2004. The commissioner denied the applications, and the sellers petitioned the Appellate Tax Board (board). The appellant, Econo-Tennis Management Corp., doing business as Dedham Health and Athletic Complex (Dedham Health), one of the consumers who purchased these service contracts, moved to intervene in the proceedings, which the board allowed. Thereafter, the board, with certain exceptions, reversed the decision of the commissioner and allowed the abatements, ordering the parties to compute the amounts to be abated. Taxes totaling $ 215.55 were imposed on the service contracts purchased by Dedham Health.[4] After the class action litigation on the claims under G. L. c. 93A ended in the sellers’ favor, the sellers withdrew their tax abatement petitions with prejudice. Dedham Health moved to strike the withdrawals. The […]
Categories: News Tags: 1003218, cases, Commissioner, consolidated, Lawyers, Revenue, TechServices, three, Weekly, WorldWide
Commonwealth v. Cawthron (and three companion cases) (Lawyers Weekly No. 11-003-17)
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 15-P-1751 Appeals Court COMMONWEALTH vs. KEITH CAWTHRON (and three companion cases[1]). No. 15-P-1751. Middlesex. November 10, 2016. – January 6, 2017. Present: Trainor, Meade, & Hanlon, JJ. Controlled Substances. Practice, Criminal, Motion to suppress, Admissions and confessions. Evidence, Admissions and confessions. Constitutional Law, Admissions and confessions, Investigatory stop. Due Process of Law, Police custody. Indictments found and returned in the Superior Court Department on April 24, 2014. Pretrial motions to suppress evidence were heard by Kenneth W. Salinger, J., and a motion for reconsideration was considered by him. An application for leave to prosecute an interlocutory appeal was allowed by Margot Botsford, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court. Timothy Ferriter, Assistant District Attorney, for the Commonwealth. Thomas M. Glynn for Keith M. Cawthron. Daniel E. Callahan, Committee for Public Counsel Services, for Craig Flodstrom. MEADE, J. A Middlesex County grand jury indicted the defendant, Keith M. Cawthron, and the codefendant, Craig Flodstrom, for trafficking in an amount more than eighteen and less than thirty-six grams of oxycodone, in violation of G. L. c. 94C, § 32E(c)(1), and conspiracy to traffic oxycodone, in violation of G. L. c. 94C, § 40. Prior to trial, the defendants moved to suppress the oxycodone and statements they made at the time they were stopped by the police. After conducting an evidentiary hearing, the motion judge issued findings and an order that allowed Cawthron’s motion to suppress in full, and allowed Flodstrom’s motion to suppress in part and denied it in part.[2] The Commonwealth timely noticed an appeal, and a single justice of the Supreme Judicial Court allowed the Commonwealth’s application for leave to pursue an interlocutory appeal and reported the matter to this court. See G. L. c. 278, § 28E; Mass.R.Crim.P. 15(a)(2), as appearing in 422 Mass. 1501 (1996). This appeal presents the question whether the conduct of the police officers, during the course of an investigatory stop, elevated that stop to one of custodial interrogation requiring the recitation of Miranda rights. The motion judge determined that it did. We reverse. Background. Detective Michael Donovan and Detective Lieutenant Ryan Columbus of the Tewksbury police department testified at the motion hearing.[3] The motion judge made detailed findings of fact to support his order, as […]
Commonwealth v. Iacoviello (and three companion cases) (Lawyers Weekly No. 11-125-16)
OTICE: 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-1818 Appeals Court COMMONWEALTH vs. ROBERT IACOVIELLO (and three companion cases[1]). No. 13-P-1818. Suffolk. April 8, 2016. – September 15, 2016. Present: Cypher, Katzmann, & Massing, JJ. Homicide. Practice, Criminal, Instructions to jury. Self-Defense. Wanton or Reckless Conduct. Intoxication. Evidence, Prior violent conduct. Accessory and Principal. Indictments found and returned in the Superior Court Department on December 20, 2007. The cases were tried before Patrick F. Brady, J., and a motion for a new trial, filed on May 6, 2014, was heard by him. Sara A. Laroche (Patricia L. Garin with her) for Robert Iacoviello. Willie J. Davis for James Heang. Cailin M. Campbell, Assistant District Attorney (Edmond J. Zabin, Assistant District Attorney, with her) for the Commonwealth. CYPHER, J. In the early morning hours of September 29, 2007, two groups converged in the dark near a baseball field behind Revere High School. One group consisted primarily of off-duty Revere police officers dressed in civilian clothes. The other group consisted of four local young men who were either members of or affiliated with a gang. Both groups had been drinking for much of the night. Heated, gang-related words were exchanged. Guns were fired from both sides. One person, off-duty Revere police Officer Daniel Talbot, was fatally wounded. A second person, defendant Robert Iacoviello, was charged with murder in the first degree, carrying a firearm without a license, and possession of a firearm without a firearm identification card. A third person, defendant James Heang, who had not been present during the fateful encounter, was charged with being an accessory after the fact in aid of Iacoviello and carrying a firearm without a license. In a joint trial, a jury found Iacoviello guilty of murder in the second degree, G. L. c. 265, § 1, and carrying a firearm without a license, G. L. c. 269, § 10(a).[2] The jury found Heang not guilty of carrying a firearm without a license, G. L. c. 269, § 10(a), but guilty of being an accessory after the fact, G. L. c. 274, § 4. The defendants appeal, raising issues they preserved during the proceedings below. Iacoviello primarily argues that the trial judge erred by declining to instruct the jury on self-defense, voluntary manslaughter, and involuntary manslaughter. Heang primarily argues that the trial judge erred by prohibiting […]
Categories: News Tags: 1112516, cases, Commonwealth, companion, Iacoviello, Lawyers, three, Weekly
Three Registered Voters v. Board of Selectmen of Lynnfield, et al. (Lawyers Weekly No. 11-101-16)
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 15-P-936 Appeals Court THREE REGISTERED VOTERS vs. BOARD OF SELECTMEN OF LYNNFIELD & another.[1] No. 15-P-936. Essex. March 9, 2016. – August 12, 2016. Present: Cypher, Cohen, & Neyman, JJ. Open Meeting Law. Municipal Corporations, Open meetings. Civil action commenced in the Superior Court Department on January 5, 2015. A motion to dismiss was heard by Robert A. Cornetta, J. Michael C. Walsh (David E. Miller with him) for the plaintiffs. Thomas A. Mullen for the defendants. CYPHER, J. The plaintiffs, three registered voters (voters)[2] in the town of Lynnfield (town), appeal from the dismissal in the Superior Court of their complaint alleging that the board of selectmen of Lynnfield (board)[3] violated the open meeting law, G. L. c. 30A, §§ 18-25, in the selection process for appointing several municipal officials. The voters argue that the board violated the open meeting law by (1) failing to give proper notice of the meeting at which the new town administrator was appointed; (2) failing to properly process their complaint; and (3) failing to interview and to deliberate on applicants for the town administrator position in an open meeting. We affirm the dismissal of the complaint. This case appears to be the first under G. L. c. 30A, §§ 18-25, to reach an appellate court. This new statute, inserted by St. 2009, c. 28, § 18,[4] was a significant revision of the former open meeting law, G. L. c. 39, §§ 23A-23C, which was repealed by St. 2009, c. 28, § 20. Therefore, we briefly summarize provisions of the new law as relevant to the present case. The open meeting law continues to “manifest[] . . . a general policy that all meetings of a governmental body should be open to the public unless exempted by . . . statute.” Attorney Gen. v. School Comm. of Taunton, 7 Mass. App. Ct. 226, 229 (1979). Section 20(a) of the open meeting law declares that “all meetings of a public body shall be open to the public,” and § 20(b) states that a public body “shall post notice of every meeting at least 48 hours prior to such meeting.” G. L. c. 30A, § 20, as appearing in St. 2014, c. 485. Section 19(a) of the new law established a division of open government in the office of the Attorney General and provided her authority pursuant to § 25(a) to “promulgate rules and regulations to carry out enforcement of […]
Commonwealth v. Balboni (and three companion cases) (Lawyers Weekly No. 11-078-16)
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 14-P-697 Appeals Court 14-P-698 COMMONWEALTH vs. SCOTT BALBONI (and three companion cases[1]). Nos. 14-P-697 & 14-P-698. Middlesex. December 4, 2015. – July 1, 2016. Present: Cypher, Wolohojian, & Carhart, JJ. Burning of Property. Destruction of Property. Practice, Criminal, Motion to suppress, Affidavit. Search and Seizure, Probable cause, Affidavit. Constitutional Law, Search and seizure, Probable cause. Probable Cause. Cellular Telephone. Witness, Cross-examination. Indictments found and returned in the Superior Court Department on July 14, 2009. Pretrial motions to suppress evidence were heard by Christine M. Roach, J., and the cases were tried before Elizabeth M. Fahey, J. Mark G. Miliotis for Samuel Doxsey. Patrick J. Noonan for Scott Balboni. Eric A. Haskell, Assistant District Attorney, for the Commonwealth. CYPHER, J. In these appeals from convictions of malicious burning of property, G. L. c. 266, § 5, and malicious destruction of property over $ 250, G. L. c. 266, § 127, the defendants, Samuel Doxsey and Scott Balboni, argue that (1) their motions to suppress documentary evidence obtained from third parties should have been allowed; (2) their motions to strike certain witness testimony were erroneously denied; and (3) the evidence of wilful and malicious burning was insufficient.[2] We affirm. 1. Background. We recite the evidence in the light most favorable to the Commonwealth. Additional details will be set forth in later sections as necessary. On the evening of April 4, 2009, Daniel Feehan threw a party at his apartment; Doxsey’s younger sister was in attendance. At the party, Feehan sexually assaulted Doxsey’s sister. As she attempted to leave the party, Feehan pulled down her shirt, exposing her chest to the other partygoers. After Doxsey’s sister left Feehan’s apartment, she telephoned Doxsey and told him that she had been assaulted at a party. Doxsey was a student at the University of New Hampshire, living at a fraternity house in Durham, New Hampshire. At around 4:00 A.M., after the party, the Lexington fire department responded to an alarm at an apartment complex where they found a pickup truck engulfed in flames.[3] Fire Captain John Wilson observed fire coming from the rear passenger compartment of the vehicle and flames rising from the exterior doors. On the side of the truck, Captain Wilson discerned “pour patterns” — uneven liquid patterns running down the vehicle’s surface — […]
Commonwealth v. Hunt (and three companion cases) (Lawyers Weekly No. 11-148-13)
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 12‑P‑544 Appeals Court COMMONWEALTH vs. SHAWN HUNT (and three companion cases[1]). No. 12‑P‑544. Bristol. April 10, 2013. ‑ December 20, 2013. Present: Rubin, Fecteau, & Hines, JJ. Homicide. Grand Jury. Practice, Criminal, Grand jury proceedings, Conduct of prosecutor, Disclosure of evidence, Indictment, Dismissal, Capital case. Evidence, Grand jury proceedings, Testimony before grand jury, Identification, Exculpatory, Disclosure of evidence, Credibility of witness, Prior inconsistent statement, Indictment. Identification. Indictments found and returned in the Superior Court Department on January 23, 2009. Motions to dismiss the indictments were heard by Gary A. Nickerson, J. William M. McCauley, Assistant District Attorney (Tara L. Blackman, Assistant District Attorney, with him) for the Commonwealth. Joseph F. Krowski for Jonathan Michael Pittman. Robert S. Sinsheimer for Shawn Hunt. HINES, J. The defendants, Shawn Hunt and Jonathan Michael Pittman, were indicted for murder in the first degree and carrying a firearm without a license by a Bristol County grand jury. After a grand jury witness, the victim’s mother, admitted to fabricating her identification of the defendants as the perpetrators of the crime, a judge allowed the defendants’ motions to dismiss the indictments without prejudice. The Commonwealth now appeals from the order allowing the motions to dismiss, claiming that the judge erred in ruling that the presentation of the witness’s false identification impaired the integrity of the grand jury proceedings. Although we conclude that the judge committed no error in his assessment of the Commonwealth’s conduct in presenting the evidence to the grand jury, we reverse because the evidence was otherwise sufficient to sustain the indictment. 1. Background. On November 20, 2003, Alberto “Tito” Gonzalez was killed by shots fired from a passing motor vehicle in New Bedford. In the immediate aftermath of the crime, the police investigation identified the defendants as possible suspects. The Bristol County district attorney, however, declined to present the case against these defendants (hereinafter, the Gonzalez case) to a grand jury. Almost five years later, a newly elected district attorney presented the Gonzalez case to three successive grand juries, culminating on January 23, 2009, in indictments of the defendants for murder in the first degree and carrying a firearm without a license. On the eve of trial, the Commonwealth learned that Fernanda Gonzalez, the victim’s mother, had fabricated her grand jury testimony identifying Pittman […]
Bank of America, N.A. v. Rosa (and three consolidated cases) (Lawyers Weekly No. 10-198-13)
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‑11330 BANK OF AMERICA, N.A. vs. CEFERINO S. ROSA (and three consolidated cases[1]). Essex. September 9, 2013. ‑ December 18, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Mortgage, Foreclosure. Summary Process. Housing Court, Jurisdiction. Practice, Civil, Summary process, Affirmative defense, Counterclaim and cross‑claim. Jurisdiction, Summary process, Housing Court, Equitable. Uniform Summary Process Rules. Rules of Civil Procedure. Statute, Construction. Summary process. Complaints filed in the Northeast Division of the Housing Court Department, two on February 6, 2012, and one each on January 20, 2012, and April 2, 2012, respectively. Motions to strike and to dismiss affirmative defenses and counterclaims were heard by David D. Kerman, J. Proceedings for interlocutory review were heard in the Appeals Court by Mary T. Sullivan, J., and the cases were consolidated and reported by her to the Appeals Court. The Supreme Judicial Court granted an application for direct appellate review. Phoebe N. Coddington, of North Carolina (Jennifer E. Greaney & Stephen C. Reilly with her) for Bank of America, N.A., & another. Thomas J. Santolucito (Rachel B. Meisterman with him) for Federal Home Loan Mortgage Corporation. Richard M.W. Bauer (Eloise P. Lawrence with him) for Ceferino S. Rosa & others. Marylyn E. Flores (David S. Flores with her) for Gerard J. Cioffi. Benjamin O. Adeyinka, for The Real Estate Bar Association of Massachusetts, Inc., & another, amici curiae, submitted a brief. Arielle Cohen & Charles Delbaum, for National Consumer Law Center, amicus curiae, submitted a brief. SPINA, J. In each of these consolidated appeals the plaintiff bank brought a summary process action against the former homeowner-mortgagor in the Housing Court after foreclosure. Each former homeowner raised various defenses and counterclaims in his or her answer to the complaint that challenged the bank’s right to both possession and title as derived through foreclosure sale, as well as other defenses and counterclaims. In each case the bank filed a motion to strike the affirmative defenses and to dismiss the counterclaims on grounds that the only defenses and counterclaims available in summary process are (1) those allowed by G. L. c. 239, § 8A, which does not apply here because there was no landlord-tenant relationship between the parties, and (2) a challenge to title (and thereby possession) based only on a failure to comply […]
Three South End Students Win Scholarships
The three students won scholarships through the Blackstone-Franklin Neighborhood Association. South End Patch News
Categories: Arrests Tags: Scholarships, South, Students, three
Three Things You Didn’t Know about the Boston Center for the Arts
You probably walk by the Tremont Street plaza often, but are you familiar with what the Boston Center for the Arts has to offer the community? South End Patch News
Callahan Tunnel to Close for Three Months in 2014
A major connector between Boston’s North End and East Boston will be shut down for three months at the beginning of 2014. The Callahan Tunnel will close beginning in January 2014 and ending three months later with intermittent overnight closures four four to five months thereafter for a “complete rehabilitation,” according to a Massachusetts Department of Transportation statement Thursday. “The Callahan has served motorists well since the day it opened in 1961 and was paired with the Sumner tunnel,” MassDOT Highway Administrator Frank DePaola said in the statement. “However, every aspect of the tunnel is in fair to poor condition, and the time has come to put the Callahan in shape to last another 50 years.” There will be “extensive public outreach” to determine the best available detours and alternate routes during the closure, according to the statement. The $ 34.9 million tunnel overhaul will include rehabilitation of the 52-year old tunnel’s deck, curb line, gutters and replacement of the tunnel’s wall panels. MassDOT has scheduled a public information session regarding the closure: Wednesday, June 26 – 6:30pm, East Boston High School, 86 White Street According to the statement: In December 2012, a single wall panel fell during evening rush hour. There were no injuries to motorists, damage to vehicles or structural concerns; however, three additional panels are removed as a precaution that evening. MassDOT immediately in December conducted an overnight pull-test of all 2800 panels inside the Callahan Tunnel, removing approximately 120 panels due to either advanced corrosion or as a precaution. In January 2013, plans were carried out to remove all the panels from the Callahan to ensure safety, resulting in dim conditions but no structural issues. SOUTH END PATCH: Facebook | Twitter | E-mail Updates South End Patch