Care and Protection of M.C. (Lawyers Weekly No. 10-054-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12339   CARE AND PROTECTION OF M.C.       Suffolk.     October 3, 2017. – April 9, 2018.   Present (Sitting at Greenfield):  Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.     Impoundment.  Minor, Care and protection.  Parent and Child, Care and protection of minor.  Constitutional Law, Waiver of constitutional rights, Impoundment order, Self-incrimination.  Witness, Self-incrimination.  Evidence, Communication between patient and psychotherapist.  Practice, Civil, Care and protection proceeding, Impoundment order, Waiver.  Waiver.       Civil action commenced in the Supreme Judicial Court for the county of Suffolk on December 28, 2016.   The case was reported by Lenk, J.     Jeanne M. Kaiser (Bonnie G. Allen also present) for the mother. Mark H. Bluver for the father. Steven Greenbaum, Assistant District Attorney, for the Commonwealth. Scott R. Chapman, Committee for Public Counsel Services (Jessica McArdle, Committee for Public Counsel Services, also present) for the child.     GAZIANO, J.  In this case, we consider the appropriate standards and procedures for requests by the parties and the Commonwealth for the release of impounded records in a care and protection proceeding in the Juvenile Court.  The mother and the father are the subjects of a care and protection proceeding commenced in the Juvenile Court by the Department of Children and Families (department), and are defendants in criminal child abuse cases pending in the Superior Court.  The records from the care and protection proceeding, including the transcripts and exhibits from a trial to terminate parental rights, are impounded, pursuant to G. L. c. 119, § 38, and Juvenile Court Standing Order 1-84, Mass. Ann. Laws Court Rules, Standing Orders of the Juvenile Court, at 1107 (LexisNexis 2016). The father sought access to impounded records from the care and protection proceeding in conjunction with his upcoming criminal trial.  The Commonwealth also sought access to the records for its use in preparation for both the father’s and the mother’s pending criminal trials.  The mother opposed portions of the father’s motion, and opposed the Commonwealth’s motion in its entirety.  The child opposed the release of any records on privacy grounds.  Concluding that both the father and the Commonwealth had met the burden of demonstrating that there was good cause to grant the requested relief from impoundment, a Juvenile Court judge allowed both motions.  After the mother’s application for relief in the Appeals Court was denied, she […]

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Posted by Massachusetts Legal Resources - April 9, 2018 at 5:36 pm

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Maslow v. O’Connor (Lawyers Weekly No. 11-040-18)

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   16-P-1674                                       Appeals Court   JAMES MASLOW & others.[1]  vs.  CAROLYN O’CONNOR[2] & others.[3]     No. 16-P-1674.   Essex.     January 3, 2018. – April 6, 2018.   Present:  Wolohojian, Milkey, & Englander, JJ.     Real Property, Littoral property, License, Harbors.  Way, Private.  Trust, Public trust.  Real Property, Harbors.       Civil action commenced in the Superior Court Department on March 29, 2011.   Motions for summary judgment were heard by Robert A. Cornetta, J.     Robert S. Wolfe for the plaintiffs. John A. Christopher (Glenn A. Wood also present) for the defendants.     ENGLANDER, J.  In this case we examine whether the filling of an area of tidelands pursuant to a G. L. c. 91 license extinguished rights held by upland owners to cross that area to access the remaining tidelands and the sea.  A Superior Court judge determined that the filling of certain tidelands extinguished the plaintiffs’ rights to access remaining tidelands through the end of a private way to which they were abutters.  We reverse, because the c. 91 license by its terms preserved those rights. Background.  a.  The dispute.[4]  This case involves Rackliffe Street, a private way on Rocky Neck, a peninsula that juts into Gloucester Harbor.  Rackliffe Street runs north-south, and it is not disputed that at least prior to 1925, the southern end of Rackliffe terminated at the mean high water mark of Wonson’s Cove, in Gloucester Harbor, such that Rackliffe Street abutters could walk down Rackliffe and access the tidelands from the end of the street. Currently, the black-topped Rackliffe Street does not extend all the way to Wonson’s Cove.  Rather, it terminates approximately ten feet short of the high water mark, after which one must pass over a “grassy strip.”  At the southerly end of this ten-foot grassy strip there is a ramp, which descends into the tidelands and can be used for access. The basic dispute is as follows:  The plaintiffs are Rackliffe Street abutters whose homes are not at the southerly end of the street but who seek access to the tidelands across the grassy strip and ramp.  The defendants are the most southerly abutters, on opposite sides of Rackliffe Street where the street ends at Wonson’s Cove.  They seek to prevent such access.  The O’Connor defendants live at number 18, on the east side of Rackliffe; defendant […]

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Posted by Massachusetts Legal Resources - April 6, 2018 at 9:37 pm

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Commonwealth v. Anitus (Lawyers Weekly No. 11-041-18)

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   16-P-1282                                       Appeals Court   COMMONWEALTH  vs.  JEFFREY ANITUS.     No. 16-P-1282.   Bristol.     December 6, 2017. – April 6, 2018.   Present:  Milkey, Henry, & Wendlandt, JJ.     Robbery.  Deoxyribonucleic Acid.  Identification.  Evidence, Identification.  Practice, Criminal, Required finding.     Indictments found and returned in the Superior Court Department on December 19, 2013.   The cases were tried before Renee P. Dupuis, J.     Michelle Menken for the defendant. Shoshana E. Stern, Assistant District Attorney, for the Commonwealth.     WENDLANDT, J.  Following a jury trial, the defendant was convicted of armed robbery while masked, pursuant to G. L. c. 265, § 17, and assault by means of a dangerous weapon, pursuant to G. L. c. 265, § 15B(b).[1]  On appeal, the defendant argues that there was insufficient evidence to support the conviction under Commonwealth v. Morris, 422 Mass. 254 (1996).  Applying the Supreme Judicial Court’s jurisprudence regarding the sufficiency of fingerprint evidence found on a moveable object at a crime scene to the deoxyribonucleic acid (DNA) evidence in this case, we agree. Background.  On July 3, 2013, two men broke into a Burger King in Easton at around 11:30 P.M. and stole approximately $ 3,000.  Both men were described by the restaurant manager, who was present during the robbery, as African-American and wearing blue surgical masks.  The first assailant was approximately six feet tall, and armed with a gun; he wore a dark hooded sweatshirt.  The second assailant, who wore a tan hooded sweatshirt, was “a little bit taller” than the armed man. Surveillance recordings from the Burger King and the neighboring Dunkin’ Donuts captured images of both men as they fled the crime scene.  The recordings showed the second assailant removing his mask and, as he is fleeing the crime scene, tossing something into the Dunkin’ Donuts plaza.  His profile was captured in one of the recordings; however, the recording (and the still photographs captured from it) were grainy and of extremely poor quality.[2]  The surveillance recordings also captured a white vehicle matching the make and model of the defendant’s mother’s vehicle.[3] One of the police officers who responded to the crime scene discovered two cloth items — a white toddler-sized T-shirt and a blue knotted bandana — in the Dunkin’ Donuts plaza.  The Commonwealth’s theory was that the defendant was the second assailant.  Based on the recordings,[4] the Commonwealth argued […]

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Posted by Massachusetts Legal Resources - April 6, 2018 at 6:02 pm

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Committee for Public Counsel Services, et al. v. Attorney General of Massachusetts, et al. (Lawyers Weekly No. 10-051-18)

SUFFOLK, ss. COMMONWEALTH OF MASSACHUSETTS SUPREME JUDICIAL COURT FOR SUFFOLK COUNTY No. SJ-2017-347 COMMITTEE FOR PUBLIC COUNSEL SERVICES, HAMPDEN COUNTY LAWYERS FOR JUSTICE, INC., HERSCHELLE REAVES, and NICOLE WESTCOTT vs. ATTORNEY GENERAL of MASSACHUSETTS, DISTRICT ATTORNEY for BERKSHIRE COUNTY, DISTRICT ATTORNEY for BRISTOL COUNTY, DISTRICT ATTORNEY for the CAPE and ISLANDS, DISTRICT ATTORNEY for ESSEX COUNTY, DISTRICT ATTORNEY for HAMPDEN COUNTY, DISTRICT ATTORNEY for MIDDLESEX COUNTY, DISTRICT ATTORNEY for NORFOLK COUNTY, DISTRICT ATTORNEY for the NORTHWESTERN DISTRICT, DISTRICT ATTORNEY for PLYMOUTH COUNTY, DISTRICT ATTORNEY for SUFFOLK COUNTY, and DISTRICT ATTORNEY for WORCESTER COUNTY DECLARATORY JUDGMENT This matter came before the court, Gaziano, J., on a petition pursuant to G L. c. 211, § 3, seeking relief for defendants affected by the misconduct of state chemist Sonja Farak. As an initial matter, the respondents — the Attorney General and the offices of the Massachusetts District Attorneys — have agreed to vacate certain convictions obtained using drug certificates signed by Sonja Farak. The respondents have filed with the court, and served on the petitioners, formatted interim lists identifying the defendants and their convictions, delinquency or youthful offender adjudications, or other adverse dispositions that the respondents agree should be vacated and dismissed with prejudice. The convictions, adjudications, or other dispositions of those cases are addressed in this orcler. Final lists are to be provided by the respondents and filed with this court no later than April 30, 2018. Those lists may result in additional dismissals. Accordingly, it is ORDERED that the convictions of drug offenses under G. L. 94C that have been so identified by the respondents in the interim lists filed with this court on or before March 30,2018, shall be and are hereby VACATED AND DISMISSED WITH PREJUDICE, and any outstanding warrants associated with those convictions are recalled. The clerk shall provide copies of the formatted lists to the Judicial Information Services Department of the trial comi fmihwith in order to effectuate the dismissals. Entered: April 5, 2018 ~ Comi (Gaz.·ia./n.o, J.), fiJ1{y- , ‘\ (‘ – . f;} – /8 r. ;/ . I !f~{A /1 2~U lriaura S. Doy~~re~J I /~ ‘4 Full-text Opinions

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Posted by Massachusetts Legal Resources - April 6, 2018 at 12:09 am

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Boelter, et al. v. Board of Selectmen of Wayland (Lawyers Weekly No. 10-050-18)

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-12353   MARY ALICE BOELTER & others[1]  vs.  BOARD OF SELECTMEN OF WAYLAND.       Middlesex.     December 5, 2017. – April 5, 2018.   Present:  Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.     Open Meeting Law.  Municipal Corporations, Open meetings, Selectmen.  Moot Question.  Attorney General.       Civil action commenced in the Superior Court Department on February 11, 2014.   The case was heard by Dennis J. Curran, J., on motions for summary judgment.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     Mark J. Lanza, Special Town Counsel, for the defendant. David S. Mackey, Special Assistant Attorney General (Christine M. Zaleski also present) for Massachusetts Gaming Commission. George H. Harris for the plaintiffs. The following submitted briefs for amici curiae: Maura Healey, Attorney General, & Jonathan Sclarsic & Kevin W. Manganaro, Assistant Attorneys General, for the Attorney General. Robert J. Ambrogi & Peter J. Caruso for Massachusetts Newspaper Publishers Association. Kenneth S. Leonetti, Christopher E. Hart, Michael Hoven, & Kelly Caiazzo for Hal Abrams & others.     LENK, J.  The plaintiffs, all registered voters in the town of Wayland (town), brought this action in the Superior Court to challenge the procedure by which the board of selectmen of Wayland (board) conducted the 2012 performance review of the town administrator.  The chair of the board had circulated to all board members, in advance of the public meeting where the town administrator’s evaluation was to take place, board members’ individual written evaluations, as well as a composite written evaluation, of the town administrator’s performance.  The board made public all written evaluations after the open meeting.  The issue before us is whether the board violated the Massachusetts open meeting law, G. L. c. 30A, §§ 18 and 20 (a), which generally requires public bodies to make their meetings, including “deliberations,” open to the public. A judge of the Superior Court allowed the plaintiffs’ motion for summary judgment, issued a permanent injunction, and declared “stricken” a contrary determination by the Attorney General that had issued the prior year, on essentially the same facts, in which the Attorney General had found that the board’s conduct had not violated the open meeting law.  The board appealed from the allowance of summary judgment, arguing that the matter is moot, its conduct did not violate the […]

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Posted by Massachusetts Legal Resources - April 5, 2018 at 5:00 pm

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St. Laurent, et al. v. Middleborough Gas & Electric Department (Lawyers Weekly No. 11-039-18)

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   17-P-835                                        Appeals Court   ALLISON ST. LAURENT & another[1]  vs.  MIDDLEBOROUGH GAS & ELECTRIC DEPARTMENT.     No. 17-P-835.     April 4, 2018.     Municipal Corporations, Municipal electric plant, Governmental immunity.  Middleborough.  Massachusetts Tort Claims Act.  Statute, Construction.     Middleborough Gas & Electric Department (MGED) appeals from a Superior Court order denying its motion to dismiss for lack of presentment.  The motion judge denied the motion on the ground that MGED is not a “public employer” subject to the Massachusetts Tort Claims Act, and thus the presentment requirement of G. L. c. 258, § 4, did not apply.  We disagree and remand so that the Superior Court can address whether the presentment requirement was satisfied on the facts here.   Background.[2]  The complaint alleges that the plaintiffs were injured in October, 2013, when a ladder they were near came into contact with an “arc[ing]” electrical current.  They claim that the current came from an “improperly grounded” line maintained by MGED, and that MGED was negligent.  Between November, 2013, and July, 2015, and prior to filing suit, the plaintiffs’ attorney communicated with representatives of MGED multiple times, both orally and in writing.  Eventually efforts at presuit resolution failed, and the plaintiffs filed this lawsuit on April 19, 2016.   MGED filed a motion to dismiss, arguing that the plaintiffs had failed to make presentment as required by the Massachusetts Tort Claims Act, G. L. c. 258, § 4.  The plaintiffs responded (1) that no presentment was required because MGED is not a “public employer” as defined in G. L. c. 258, § 1, as amended by St. 1993, c. 110, § 227, and thus the Tort Claims Act does not apply and (2) that in any event the plaintiffs had satisfied the presentment requirement through correspondence with representatives of MGED.  The motion judge denied MGED’s motion on the ground that MGED was not a public employer, but rather was a “commercial business.”   Discussion.  The question before us turns on the definition of “public employer,” found at c. 258, § 1, which provides that “public employer” includes “any . . . town . . . and any department . . . thereof . . . including a municipal gas or electric plant.”  In construing a statute we begin with its plain language, and we think the language here admits of only one interpretation.  See Commonwealth v. Stewart-Johnson, 78 Mass. App. Ct. 592, 600 (2011) (“A statute is to be interpreted according […]

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Posted by Massachusetts Legal Resources - April 4, 2018 at 3:57 pm

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Commonwealth v. Lujan (Lawyers Weekly No. 11-038-18)

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   16-P-1428                                       Appeals Court   COMMONWEALTH  vs.  MIHAIL LUJAN.     No. 16-P-1428.   Hampden.     September 14, 2017. – April 3, 2018.   Present:  Wolohojian, Agnes, & Wendlandt, JJ.     Rape.  Practice, Criminal, Motion to suppress, Interpreter, Admissions and confessions, Voluntariness of statement.  Interpreter.  Due Process of Law, Interpreter.  Constitutional Law, Voluntariness of statement, Admissions and confessions.       Indictment found and returned in the Superior Court Department on April 30, 2013.   A pretrial motion to suppress evidence was heard by Tina S. Page, J.   An application for leave to prosecute an interlocutory appeal was allowed by Geraldine S. Hines, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court.     David L. Sheppard-Brick, Assistant District Attorney, for the Commonwealth. Patrick Levin, Committee for Public Counsel Services, for the defendant.     WOLOHOJIAN, J.  We are called upon in this interlocutory appeal to decide whether a Superior Court judge erred in allowing the defendant’s motion to suppress statements he made during a police interview.  The defendant’s native and primary language is Moldovan but he also has some knowledge of Russian, a language unrelated to Moldovan.  To bridge the language barrier between the officers (who spoke English) and the defendant (who did not) the officers enlisted the help of a Russian-speaking student intern (intern).  The intern had no knowledge of Moldovan, and was not a certified interpreter in Russian.  After reviewing a videotape of the interview and conducting an evidentiary hearing that included testimony from a court-certified Russian interpreter, the judge found numerous irregularities in the way the intern carried out his interpretative role.  These included instances where the intern omitted or changed words, phrases, and even questions and answers; instances where the intern suggested words to the defendant that the defendant adopted to his detriment; instances where the intern asked his own questions; and instances where the intern resorted to pantomime and gestures in an attempt to explain Russian words to the defendant and to help understand what the defendant was trying to say.  The judge concluded that the defendant was not effectively advised of his Miranda rights and that the defendant’s statement was not voluntary because much of the statement was not his. In this interlocutory appeal, the Commonwealth argues that (1) the […]

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Posted by Massachusetts Legal Resources - April 3, 2018 at 6:29 pm

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Donarumo, et al. v. Phillips, et al. (Lawyers Weekly No. 09-034-18)

COMMONWEALTH OF MASSACHUSETTS   SUFFOLK, ss                                                                                                                                    SUPERIOR COURT             CIVIL ACTION 16-00023-C                                                               ANDREW DONARUMO, individually & d/b/a Drew Donarumo Plumbing & Heating, Donarumo Plumbing & Heating, & Drew’s Plumbing & Heating Inc. Plaintiffs   v.   JEFFERY J. PHILLIPS, Esq. & DANIEL TREGER, Esq. Defendants     MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT PURSUANT TO MASS. R. CIV. P. 56     Plaintiffs Andrew Donarumo (“Mr. Donarumo”), individually and d/b/a Drew Donarumo Plumbing & Heating, Donarumo Plumbing & Heating and Drew’s Plumbing & Heating Inc. (collectively, the “Plaintiffs”), bring this legal malpractice action against their former counsel, Jeffrey J. Phillips, Esq. (“Attorney Phillips”) and Daniel Treger, Esq. (“Attorney Treger”).  Plaintiffs allege that the Defendants were negligent and violated Mass. G.L. c. 93A during their representation of them in a civil action arising out of the sale of Plaintiffs’ plumbing business.  Presented for decision is the Defendants’ Motion for Summary Judgment Pursuant to Mass. R. Civ. P. 56.  Following a hearing and for the reasons which follow, the Defendants’ motion shall be DENIED.   FACTUAL BACKGROUND The following facts are drawn from the summary judgment record and the statement of undisputed material facts filed jointly by the parties under Superior Court Rule 9A(b)(5).  The Court views this record in the light most favorable to the Plaintiffs, the non-moving party. The Furlong Litigation On January 10, 2008, Michael G. Furlong, Esq., JoAnn Furlong and Drew’s Plumbing & Heating II, Inc. (the “Furlongs”) brought an action against the Plaintiffs in Superior Court, alleging that the Plaintiffs had engaged in unlawful and bad faith conduct in connection with the sale of their plumbing business to the Furlongs (the “Furlong litigation”).  More specifically, the Furlongs alleged that the Plaintiffs violated contractual and common law tort duties owed to them  when, immediately following the sale, the Plaintiffs opened up a new plumbing business that began competing against the company sold to the Furlongs.  The Furlongs asserted several causes of action against the Plaintiffs (including violations of Chapter 93A) which, if proven, would have allowed the Furlongs to recover multiple damages and attorneys’ fees. On June 13, 2008, the Plaintiffs retained Attorneys Phillips and Treger (collectively, the “Defendants”) to defend them in the Furlong litigation.  To that end, Mr. Donarumo and Deirdre Donarumo (“Ms. Donarumo”), his spouse and the Trustee of the Donarumo Realty Trust, executed a Legal Services Agreement with the Defendants.  The Defendants thereafter represented the Plaintiffs in the Furlong litigation during the case’s discovery phase, through the trial, and up until September 19, 2013, at which time the Plaintiffs directed the Defendants to cease their post-trial work on Plaintiffs’ behalf.     The Defendants’ Legal […]

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Posted by Massachusetts Legal Resources - April 3, 2018 at 2:55 pm

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In the Matter of Children

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-12386   IN THE MATTER OF CHILDREN.     April 2, 2018.     Supreme Judicial Court, Superintendence of inferior courts.     Frank LaMonde appeals from a judgment of a single justice of this court denying his petition pursuant to G. L. c. 211, § 3.  We affirm.   As best we can tell from the record before us, LaMonde’s two minor children are in the temporary custody of the Department of Children and Families and have been since February, 2016.  Since that time, LaMonde has filed several emergency motions for custody.  In the most recent motion, filed in April, 2017, LaMonde not only seeks custody but also alleges that the children’s mother, from whom LaMonde is divorced, is a danger to the children and has “kidnapped” them two or three times.[1],[2]  The motion was denied.   LaMonde then filed a petition with a single justice of the Appeals Court pursuant to G. L. c. 231, § 118, first par., seeking custody of the children.  He also alleged, in the petition, that the children’s mother kidnapped the children and took them out of Massachusetts; that he reported the alleged kidnapping to both the Probate and Family Court Department and the local police; and that no one has pursued the matter.  The single justice denied the petition.  LaMonde’s subsequent notice of appeal was struck (by a different justice) on the basis that there is no right to appeal from the denial of a petition filed pursuant to G. L. c. 231, § 118, first par.  LaMonde then filed his G. L. c. 211, § 3, petition, which appears to be the same document that he filed in the Appeals Court (i.e., the petition pursuant to G. L. c. 211, § 3, is the exact same as the petition pursuant to G. L. c. 231, § 118, first par.).  A single justice of this court denied the petition without a hearing.   The case is now before us pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), which requires a showing that “review of the trial court decision cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other available means.”  S.J.C. Rule 2:21 (2).  LaMonde has not made, and cannot make, such a showing.  He has already sought interlocutory review of the trial judge’s rulings under G. L. c. 231, § 118, first par., and has been denied relief by […]

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Posted by Massachusetts Legal Resources - April 3, 2018 at 11:20 am

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Mooney, et al. v. Diversified Business Communications, et al. (Lawyers Weekly No. 09-030-18)

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1684CV03726-BLS2 1784CV03423-BLS2 ____________________ JOHN J. MOONEY and MORGAN D. WHEELOCK and JOHN SQUIRE and MACGREGOR INVESTMENTS CORPORATION v. DIVERSIFIED BUSINESS COMMUNICATIONS; DBC PRI-MED, LLC; THEODORE WIRTH; KATHY WILLING; and OAKLEY DYER ____________________ MEMORANDUM AND ORDER ON DEFENDANTS’ MOTIONS TO DISMISS FIVE OF SIX CLAIMS IN EACH ACTION The four Plaintiffs are former minority members of a closely-held Delaware company called DBC Pri-Med, LLC. The majority member is and was defendant Diversified Business Communications. The three individual defendants are all managers of Pri-Med; none of them has any ownership interest in the company.1 In January 2017 Pri-Med called Plaintiffs’ shares, as expressly permitted in Pri-Med’s operating agreement. This LLC Agreement provides that an appraisal firm to be selected by the parties shall determine the value of any called (or put) shares, based on a valuation of Pri-Med as a going concern and without discounting that value for the illiquidity or minority nature of any shares. Plaintiffs allege that Defendants carried out a scheme to artificially deflate the value of Pri-Med in order to avoid paying Plaintiffs a fair and proper price for redeeming their shares. According to Plaintiffs, this scheme involved artificially decreasing Pri-Med’s assets by selling off its major subsidiary (a company called Amazing Charts) and artificially increasing the company’s liabilities by inflating its expenses and debt. 1 The ownership of Pri-Med was divided into three classes of shares. The Series A shares were voting shares. The Series B-1 and B-2 shares were not. Diversified controlled the company because it held roughly 93 percent of the Series A shares. Each of the Plaintiffs held roughly 1.7 percent of the Series A shares. The four Plaintiffs each held one-fourth of the Series B-1 shares, which gave them certain approval rights. Four other individuals held the Series B-2 shares, which had no approval rights. – 2 – Each set of Plaintiffs asserts six claims.2 Count One seeks a declaratory judgment that the sale of Amazing Charts violated the LLC Agreement, and therefore is null and void, because Defendants did not obtain Plaintiffs’ approval. The other claims are for breach of the LLC Agreement, breach of the implied covenant of good faith and fair dealing in the same contract, breach of fiduciary duty, aiding and abetting a breach of fiduciary duty, and certain equitable relief. Defendants have moved to dismiss all of the claims under Mass. R. Civ. P. 12(b)(6) except for the claims in Count Two for breach of contract. The Court will order that declaratory judgment enter in Defendants’ favor on Count One of each complaint, deny the motions with respect to the claim for breach of the implied covenant of good faith and […]

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Posted by Massachusetts Legal Resources - April 3, 2018 at 7:45 am

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