Posts tagged "Weekly"

Commonwealth v. Lys (Lawyers Weekly No. 11-082-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

16-P-0039                                       Appeals Court

COMMONWEALTH  vs.  CHRIST O. LYS.

No. 16-P-39.

Middlesex.     December 8, 2016. – June 28, 2017.

Present:  Green, Agnes, & Desmond, JJ.

Controlled SubstancesPractice, Criminal, New trial, Plea, Affidavit, Assistance of counsel.  Constitutional Law, Plea, Assistance of counsel.  Due Process of Law, Plea, Assistance of counsel.  Alien.

Complaint received and sworn to in the Marlborough Division of the District Court Department on January 13, 2012.

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Posted by Stephen Sandberg - June 28, 2017 at 8:28 pm

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Adoption of Ilian (Lawyers Weekly No. 11-083-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

16-P-1517                                       Appeals Court

ADOPTION OF ILIAN.[1]

No. 16-P-1517.

Bristol.     May 3, 2017. – June 28, 2017.

Present:  Kinder, Henry, & Desmond, JJ.

Adoption, Dispensing with parent’s consent.  Minor, Adoption.  Parent and Child, Dispensing with parent’s consent to adoption.  Practice, Civil, Findings by judge.  Department of Children & Families.

Petition filed in the Bristol County Division of the Juvenile Court Department on August 23, 2013.

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Posted by Stephen Sandberg - June 28, 2017 at 4:54 pm

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Padmanabhan v. Board of Registration in Medicine, et al. (Lawyers Weekly No. 10-111-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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

SJC-12119

BHARANIDHARAN PADMANABHAN  vs.  BOARD OF REGISTRATION IN MEDICINE & another.[1]

June 27, 2017.

Board of Registration in MedicineAdministrative Law, Decision.

The petitioner, Bharanidharan Padmanabhan, appeals from a judgment of a single justice of the county court dismissing his petition for relief in the nature of certiorari pursuant to G. L. c. 249, § 4.  On May 18, 2017, we issued an order affirming the single justice’s judgment and indicated that this opinion would follow.

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Posted by Stephen Sandberg - June 27, 2017 at 3:50 pm

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George, et al. v. National Water Main Cleaning Company, et al. (Lawyers Weekly No. 10-110-17)

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

SJC-12191

ROBERT GEORGE & others[1]  vs.  NATIONAL WATER MAIN CLEANING COMPANY & others.[2]

Suffolk.     February 14, 2017. – June 26, 2017.

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

Supreme Judicial Court, Certification of questions of law.  Massachusetts Wage Act.  Labor, Wages, Failure to pay wages, Damages.  Damages, Interest.  Interest.  Judgment, Interest.  Practice, Civil, Interest, Judgment, Damages.

Certification of a question of law to the Supreme Judicial Court by the United States District Court for the District of Massachusetts.

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Posted by Stephen Sandberg - June 26, 2017 at 2:48 pm

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Doe, Sex Offender Registry Board No. 326573 v. Sex Offender Registry Board (and a consolidated case) (Lawyers Weekly No. 10-109-17)

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

SJC-12182

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 326573  vs.  SEX OFFENDER REGISTRY BOARD (and a consolidated case[1]).

Suffolk.     February 7, 2017. – June 23, 2017.

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

Sex OffenderSex Offender Registration and Community Notification ActInternet.

Civil action commenced in the Superior Court Department on November 21, 2014.

A motion for preliminary injunction was heard by Gregg J. Pasquale, J., and the case was reported by him to the Appeals Court.

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Posted by Stephen Sandberg - June 23, 2017 at 3:15 pm

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Mount Vernon Fire Insurance Company v. Visionaid, Inc. (Lawyers Weekly No. 10-108-17)

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

SJC-12142

MOUNT VERNON FIRE INSURANCE COMPANY  vs.  VISIONAID, INC.[1]

Suffolk.     December 5, 2016. – June 22, 2017.

Present:  Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, & Cypher, JJ.

Insurance, Insurer’s obligation to defend.

Certification of questions of law to the Supreme Judicial Court by the United States Court of Appeals for the First Circuit.

Kenneth R. Berman (Heather B. Repicky also present) for the defendant.

James J. Duane, III (Scarlett M. Rajbanshi also present) for the plaintiff.

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Posted by Stephen Sandberg - June 22, 2017 at 5:46 pm

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Commonwealth v. George (Lawyers Weekly No. 10-107-17)

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

SJC-12173

COMMONWEALTH  vs.  RICHARD GEORGE.

Worcester.     December 8, 2016. – June 21, 2017.

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

Sex OffenderConstitutional Law, Sex offender.  Due Process of Law, Sex offender, Substantive rights.  Evidence, Sex offender, Expert opinion, Relevancy and materiality.  Witness, Expert.

Civil action commenced in the Superior Court Department on October 11, 2013.

The case was tried before Beverly J. Cannone, J.

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Posted by Stephen Sandberg - June 21, 2017 at 4:44 pm

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Commonwealth v. Jones (Lawyers Weekly No. 10-106-17)

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

SJC-12027

COMMONWEALTH  vs.  MAURICE JONES.

Suffolk.     January 10, 2017. – June 20, 2017.

Present:  Gants, C.J., Lenk, Hines, & Budd, JJ.

Homicide.  Jury and Jurors.  Practice, Criminal, Jury and jurors, Empanelment of jury, Challenge to jurors, Hearsay, Instructions to jury.  Evidence, Identity, Consciousness of guilt, Hearsay.  Constitutional Law, Self-incrimination.

Indictments found and returned in the Superior Court Department on June 26, 2013.

The cases were tried before Linda E. Giles, J., and a motion to set aside the verdict was heard by her.

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Posted by Stephen Sandberg - June 20, 2017 at 3:41 pm

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ABCD Holdings, LLC v. Hannon, et al. (Lawyers Weekly No. 12-068-17)

COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT.
1684CV01840-BLS2
____________________
ABCD HOLDINGS, LLC
v.
PATRICK J. HANNON, SOFIA GAGUA, and PATRICK J. (“P.J.”) HANNON and Others1
________________________________________
PATRICK J. HANNON
v.
ABCD HOLDINGS, LLC; ABC&D RECYCLING, INC.; WARE REAL ESTATE, LLC; TRI COUNTY RECYCLING, INC.; and GEORGE McLAUGHLIN, III
____________________
MEMORANDUM AND ORDER DENYING MOTION TO DISMISS COUNTERCLAIMS AND THIRD-PARTY CLAIMS
Plaintiff ABCD Holdings, LLC, (“Holdings”) has sued Patrick J. Hannon in part to enforce Hannon’s personal guaranty of one-half of the amount that Holdings loaned to Ware Real Estate, LLC (“Ware”) and ABC&D Recycling, Inc (“Recycling”). Holdings claims that Hannon is liable under his limited guaranty to repay $ 109,879.50 (half the original loan amount) plus reasonable collection costs.
In response, Hannon has asserted various counterclaims and third-party claims alleging, in essence, that George McLaughlin deliberately prevented Ware and Recycling from repaying what they owed under their note by using Holdings to take control of Ware and Recycling and then transferring their assets and business operatings to a new entity called Tri County Recycling, Inc. (“Tri County”).
The parties sued by Hannon—i.e., McLaughlin, Holdings, Ware, Recycling, and Tri County—have moved to dismiss Hannon’s claims. They claim that Hannon’s claims are all barred by a release executed by the Chapter 7 trustee of Hannon’s bankruptcy estate. In addition, Tri County asserts that the allegations against it do not state viable claims even if the claims were not barred by the release.
The Court concludes that these arguments are without merit. It will therefore DENY the motion to dismiss Hannon’s counterclaims and third-party claims.
1 Reach and Apply Defendants J. Derenzo Co.; J. Derenzo Construction Company, Inc.; Sofia Gagua; RHR, LLC; Patrick J. (“P.J.”) Hannon; Similar Soils, Inc.; Immanuel Corp.; Agritech, Inc.; and L-5, Inc.
– 2 –
1. Settlement Agreement and Release. Hannon filed a petition under Chapter 11 of the United States Bankruptcy Code on May 3, 2012. That bankruptcy case was converted to a Chapter 7 or liquidation proceeding on January 2, 2013. The bankruptcy trustee sued Bright Horizon, LLC (“Bright Horizon”) and The McLaughlin Brothers, P.C. (“McLaughlin Bros.”) to recover various payments Hannon had made to them.
In May 2015 the bankruptcy trustee entered into a settlement agreement in which George McLaughlin, Bright Horizon, and McLaughlin Bros. agreed to pay the bankruptcy estate $ 45,000. In exchange, the trustee released all claims “whether known or unknown” that the estate or Hannon may have against George McLaughlin, Bright Horizon, McLaughlin Bros., or “any entity owned by any of” them. The settlement agreement states that it is releasing such claims “to the Trustee’s full authority to waive such claims.”
McLaughlin asserts that he owns Holdings, Recycling, Ware, and Tri County, and that the release executed by the bankruptcy trustee therefore bars all of Hannon’s counterclaims and third-party claims in this action. The Court disagrees.
Hannon’s claims in this action all arise at least in part from alleged acts by McLaughlin and his companies that occurred after Hannon’s bankruptcy petition was converted to a Chapter 7 proceeding in January 2013. Hannon alleges in his pleading that McLaughlin has been in full control of Recycling and Ware “since February 6, 2013,” and that since that time McLaughlin has taken steps to ensure that neither Recycling nor Ware has repaid any part of the loan to Holdings. He further alleges that Tri County was incorporated in May 2014, and that around that time McLaughlin terminated the business operations of Recycling and Ware and shifted those operations to Tri County.
Hannon correctly argues that the bankruptcy trustee had no power to release claims that were never part of the bankruptcy estate. See In re Ontos, 478 F.3d 427, 431 (1st Cir. 2007). “It is axiomatic that a Chapter 7 trustee may only release claims that he has the power to assert.” In re Pierport Dev. & Realty, Inc., 502 B.R. 819, 825 (Bankr. N.D.Ill. 2013), quoting In re Cent. Ill. Energy, LLC, 406 B.R. 371, 373–74 (Bankr. C.D.Ill. 2008).
– 3 –
McLaughlin and the other moving parties respond by pointing out that Hannon’s bankruptcy estate included not only all claims belonging to Hannon as of May 3, 2012, when he first filed for bankruptcy, but also all other claims arising up until the time when the bankruptcy case was converted to a Chapter 7 proceeding, which occurred on January 3, 2012. See 11 U.S.C. § 1115(a)(1) (property of bankruptcy estate includes “all property of the kind specified in section 541 that the debtor acquires after the commencement of the case but before the case is closed, dismissed, or converted to a chase under chapter 7, 12, or 13, whichever occurs first”); 11 U.S.C. § 541(a)(1) (bankruptcy estate includes “all legal or equitable interests of the debtor in property as of the commencement of the [bankruptcy] case”); Cole v. Pulley, 18 Mass. App. Ct. 950, 951 (1984) (rescript) (for purposes of § 541(a)(1), “property” includes “all interests of the debtor in rights of action” (quoting 4 Collier, Bankruptcy par. 541.10[1] (1983)).
As noted above, however, Hannon’s counterclaims and third-party claims are based in large part upon alleged acts or omissions by McLaughlin and his companies that occurred after Hannon’s bankruptcy case was converted to a Chapter 7 proceeding.
As a result, Hannon’s claims in this action were never part of his bankruptcy estate, and therefore could not be and were not released by the bankruptcy trustee.
2. Claims against Tri County. Hannon asserts two claims against Tri County. He alleges that Tri County would be unjustly enriched if Hannon is forced to pay any amount under the limited guaranty. In addition, Hannon claims that Tri County is liable under the note as a successor in interest to Recycling and Ware, and that Hannon has been harmed by Tri County’s alleged “plundering” of the assets of Recycling and Ware. The Court understands this to be a common law claim for indemnification on the theory that Tri County is legally obligated to repay the note to Holdings, and that if it does not do so and as a result Hannon is liable under his personal guaranty then he is entitled to full indemnification from Tri County.2 It does
2 “A person who, in whole or in part, has discharged a duty which is owed by him but which as between himself and another should have been discharged by the other, is entitled to indemnity from the other, unless the payor is barred by the wrongful nature of his conduct.” Suffolk Const. Co. v. Benchmark Mech. Sys., Inc., 475 Mass.
– 4 –
not matter that Hannon labels this claim as one for “successor liability” rather than a claim for indemnification.3
When one corporation acquires the assets of another, “the liabilities of a selling predecessor corporation are not imposed upon the successor corporation which purchases its assets, unless (1) the successor expressly or impliedly assumes liability of the predecessor, (2) the transaction is a de facto merger or consolidation, (3) the successor is a mere continuation of the predecessor, or (4) the transaction is a fraudulent effort to avoid liabilities of the predecessor.” Guzman v. MRM/Elgin, 409 Mass. 563, 566 (1991).
The facts alleged by Hannon plausibly suggest that Tri County is liable to pay the amounts owed by Ware and Recycling to Holdings under a “de facto merger” or a “mere continuation” theory of successor liability. See generally Milliken & Co. v. Duro Textiles, LLC, 451 Mass. 547, 557-558 (2008) (summarizing factors characterizing de facto mergers and mere continuations).
As a result, Hannon has stated viable claims that if Tri County fails to pay those amounts, and as a result Hannon is compelled to pay Holdings under his personal guaranty, then Tri County would be unjustly enriched and Hannon would be entitled to restitution and indemnification from Tri County.
ORDER
The motion to dismiss Patrick J. Hannon’s counterclaims and third-party claims is DENIED.
6 June 2017
___________________________
Kenneth W. Salinger
Justice of the Superior Court
150, 154 (2016), quoting Santagate v. Tower, 64 Mass. App. Ct. 324, 330 (2005), quoting in turn Restatement of Restitution § 76 (1937).
3 See Gallant v. City of Worcester, 383 Mass. 707, 709 (1981) (complaint may allege facts plausibly suggesting that plaintiff has legally viable claim even if complaint does not name correct legal theory); Republic Floors of New England, Inc. v. Weston Racquet Club, Inc., 25 Mass. App. Ct. 479, 487 (1988) (plaintiff may press at trial any legal theory fairly raised by allegations in complaint, even if that theory is not expressly invoked in the complaint).

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Posted by Stephen Sandberg - June 16, 2017 at 10:15 pm

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Commonwealth v. Widener (Lawyers Weekly No. 11-079-17)

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-1743                                       Appeals Court

COMMONWEALTH  vs.  JAMES L. WIDENER.

No. 15-P-1743.

Plymouth.     April 13, 2017. – June 15, 2017.

Present:  Kafker, C.J., Grainger, & Kinder, JJ.

Firearms.  Practice, Criminal, Motion to suppress, Required finding, Witness, Sentence.  Evidence, Immunized witness, Prior conviction.  Witness, Immunity.  Assault and Battery by Means of a Dangerous Weapon.

Indictments found and returned in the Superior Court Department on March 25, 2011.

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Posted by Stephen Sandberg - June 16, 2017 at 6:40 pm

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