Beliveau v. Ware (Lawyers Weekly No. 11-074-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-1318 Appeals Court GENE BELIVEAU[1] vs. RICHARD J. WARE.[2] No. 13-P-1318. Plymouth. October 9, 2014. – July 9, 2015. Present: Graham, Brown, & Sullivan, JJ. Conversion. Damages, Conversion. Limited liability company. Practice, Civil, Notice of appeal. Civil action commenced in the Superior Court Department on December 31, 2007. The case was tried before Christopher J. Muse, J., and postjudgment motions were heard by him. Paul T. Prew for the plaintiff. Michael J. Sacchitella for the defendant. BROWN, J. A Superior Court jury returned a verdict, based on answers to special questions, in favor of the plaintiff-in-counterclaim Richard J. Ware (Ware or the plaintiff), doing business as Mass Sealcoat and Maintenance (Mass Sealcoat), that the defendants-in-counterclaim, Gene Beliveau and Plymouth County Paving, LLC (collectively, defendants), converted personal property owned by Ware and that Beliveau breached a fiduciary duty owed to him. The jury awarded damages of $ 40,000 to Ware.[3] The defendants appeal from the orders denying their postjudgment motions and from the judgment. We affirm the orders. 1. Procedural point. We address a procedural issue sua sponte prior to discussing the merits of the appeal. It is well-established that “an appeal founded on a notice of appeal filed prior to disposition of a postjudgment motion under Mass.R.Civ.P. 50(b), 52(b), or 59 is a nullity and shall be dismissed.” Blackburn v. Blackburn, 22 Mass. App. Ct. 633, 634-635 (1986), quoting from Anthony v. Anthony, 21 Mass. App. Ct. 299, 302 (1985). “A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion as provided above.” Mass.R.A.P. 4(a), as amended, 464 Mass. 1601 (2013). The jury verdict was entered on June 8, 2012, and after filing on June 18, 2012, a notice of intent to file postjudgment motions, on June 25, 2012, the defendants filed three postjudgment motions: motion for a new trial, motion for judgment notwithstanding the verdict, and motion to alter or amend the judgment. The next day they filed a notice of appeal from the judgment. The defendants’ postjudgment motions were denied by the trial judge, and the defendants filed a notice of appeal from each denial of their the postjudgment motions. Those appeal notices did not reference the notice of appeal filed on June 26, 2012, and dealt […]
Commonwealth v. Ware (Lawyers Weekly No. 10-052-15)
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-11709 COMMONWEALTH vs. BRYANT WARE. Hampden. December 4, 2014. – April 8, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Supreme Judicial Court, Superintendence of inferior courts. Controlled Substances. Practice, Criminal, Plea, Conduct of government agents, Discovery, Disclosure of evidence. Evidence, Guilty plea, Certificate of drug analysis, Exculpatory, Disclosure of evidence. Constitutional Law, Plea, Conduct of government agents. Due Process of Law, Plea, Disclosure of evidence. Indictments found and returned in the Superior Court Department on August 29, 2007; November 25, 2009; and March 9, 2010. A motion for leave to conduct postconviction discovery and for funds, filed on February 14, 2014, was considered by C. Jeffrey Kinder, J. The Supreme Judicial Court granted an application for direct appellate review. James P. McKenna for the defendant. Katherine A. Robertson, Assistant District Attorney, for the Commonwealth. SPINA, J. In this case, we consider whether a Superior Court judge abused his discretion in denying a motion for leave to conduct postconviction discovery and for funds, filed by the defendant, Bryant Ware. The defendant sought retesting of drug evidence maintained by the Springfield police department in countless cases brought by the Commonwealth between July, 2004, and January 18, 2013. During that time period, Sonja Farak was a chemist at the Department of Public Health’s State Laboratory Institute in Amherst (Amherst drug lab). Also during that time period, the defendant was indicted on drug charges in three separate cases. His motion for postconviction discovery was predicated on the fact that Farak pleaded guilty on January 6, 2014, to four counts of tampering with evidence, G. L. c. 268, § 13E; four counts of theft of a controlled substance (cocaine) from a dispensary, G. L. c. 94C, § 37; and two counts of unlawful possession of a class B substance (cocaine), G. L. c. 94C, § 34. In denying the motion, the judge concluded that the defendant had failed to establish a prima facie case for relief under Mass. R. Crim. P. 30 (c) (4), as appearing in 435 Mass. 1501 (2001). We conclude that the judge did not abuse his discretion, and affirm his order. At the same time, based on what we learn from the record in this case about Farak’s misconduct at the Amherst drug lab and the Commonwealth’s failure to investigate the scope and timing of such misconduct, we further […]