Groton-Dunstable Regional School Committee v. Groton-Dunstable Educators Association (Lawyers Weekly No. 11-075-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 14-P-701 Appeals Court GROTON-DUNSTABLE REGIONAL SCHOOL COMMITTEE vs. GROTON-DUNSTABLE EDUCATORS ASSOCIATION. No. 14-P-701. Middlesex. March 9, 2015. – July 20, 2015. Present: Trainor, Wolohojian, & Carhart, JJ. School and School Committee, Professional teacher status, Termination of employment. Education Reform Act. Arbitration, Collective bargaining, School committee. Public Employment, Collective bargaining, Termination. Civil action commenced in the Superior Court Department on November 4, 2013. The case was heard by Robert L. Ullmann, J., on a motion for judgment on the pleadings. Laurie R. Houle for the defendant. Howard L. Greenspan for the plaintiff. WOLOHOJIAN, J. At issue is whether the defendant union is entitled on behalf of a terminated teacher to pursue arbitration under the provisions of its collective bargaining agreement, or whether it is instead required to pursue arbitration under G. L. c. 71, § 42, amended by St. 1993, c. 71, § 44. Because we conclude that G. L. c. 71, § 42, provides the exclusive route to arbitrate the termination of a teacher with professional teacher status (previously known as tenure), we affirm the judgment resulting from the allowance of the plaintiff school committee’s motion for judgment on the pleadings. The school committee and the union entered into a collective bargaining agreement (CBA) that covered the period September 1, 2011, through August 31, 2014. One article of the CBA governed the arbitration of grievances, and set out detailed procedures for such arbitration. Another article of the CBA provided that teachers would not “be disciplined, reprimanded, reduced in rank or compensation, or deprived of any professional advantages or salary increase without just cause.” Melissa Pooler, a teacher with professional teacher status,[1] was terminated by the school committee on July 16, 2013. After the union’s grievance on behalf of Pooler was denied,[2] the union claimed arbitration under the CBA. The school committee responded by suing to stay arbitration pursuant to G. L. c. 150C, § 2. The school committee’s motion for a preliminary injunction was allowed, as was its subsequent motion for judgment on the pleadings. The latter is the subject of this appeal.[3] Section 42 of G. L. c. 71 provides, as pertinent here, that teachers with professional teacher status (such as Pooler) may seek to have an arbitrator review their termination in accordance with the procedures specified in the statute. Section 42 also provides that such a teacher “shall not be dismissed […]
Categories: News Tags: 1107515, Association, Committee, Educators, GrotonDunstable, Lawyers, regional, school, Weekly
Shea v. Federal National Mortgage Association, et al. (Lawyers Weekly No. 11-012-15)
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-1630 Appeals Court PAUL SHEA vs. FEDERAL NATIONAL MORTGAGE ASSOCIATION & others.[1] No. 13-P-1630. February 18, 2015. Real Property, Mortgage. Assignment. Mortgage, Real estate, Assignment, Foreclosure. Practice, Civil, Motion to dismiss. At issue is whether a judge properly dismissed[2] the plaintiff’s claims[3] attacking the validity of a mortgage foreclosure to which Eaton v. Federal Natl. Mort. Assn., 462 Mass. 569 (2012), does not apply.[4] The plaintiff contends that the foreclosure was void because the mortgage was not validly assigned to OneWest Bank FSB (OneWest), the foreclosing mortgagee. He argues that the assignment was invalid because (1) the assignor never held the underlying note, and (2) the assignment was not specifically authorized by the owner of the debt.[5] We affirm.[6] Background.[7] The plaintiff (and another person who is not a party to this case) purchased the property at issue in April 2005. In 2007, as part of a refinancing of the property, the plaintiff granted a mortgage to IndyMac Bank, FSB (IndyMac) to secure a loan in the amount of $ 281,600. In pertinent part, the 2007 mortgage contained the following provisions. The mortgage defines IndyMac, which is the owner of the debt, as the “Lender.” The mortgage defines Mortgage Electronic Registration System, Inc. (MERS), as “a separate corporation that is acting solely as a nominee for Lender and Lender’s successors and assigns. MERS is the mortgagee under this Security Instrument” (emphasis in original). A section entitled “TRANSFER OF RIGHTS IN THE PROPERTY” provides that the mortgage secures both the repayment of the loan and the borrower’s performance of covenants and agreements to the Lender. That section continues as follows: “Borrower does hereby mortgage, grant and convey to MERS (solely as nominee for Lender and Lender’s successors and assigns) and to the successors and assigns of MERS, with power of sale . . . . . . . “Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower in this Security Instrument, but, if necessary to comply with law or custom, MERS (as nominee for Lender and Lender’s successors and assigns) has the right: to exercise any or all of those interests, including, but not limited to, the right to foreclose and sell the Property; and to take any action required of Lender including, but not limited to, releasing […]
Drummer Boy Homes Association, Inc. v. Britton, et al. (Lawyers Weekly No. 11-145-14)
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; SJCReporter@sjc.state.ma.us 12-P-1761 Appeals Court DRUMMER BOY HOMES ASSOCIATION, INC. vs. CAROLYN P. BRITTON & another.[1] No. 12-P-1761. Middlesex. March 3, 2014. – November 7, 2014. Present: Trainor, Brown, & Meade, JJ. Condominiums, Common expenses. Real Property, Condominium. Lien. Mortgage, Priority. Civil actions commenced in the Concord Division of the District Court Department on August 6, 2007; February 6, 2008; and October 6, 2008. After consolidation, the case was heard by Peter J. Kilmartin, J., on a motion for summary judgment, and a motion to alter and amend the judgment was also heard by him. Thomas O. Moriarty (Katherine G. Brady with him) for the plaintiff. Randy A. Britton, pro se. Henry A. Goodman, Ellen A. Shapiro, Merle R. Hass, Charles A. Perkins, Jr., & Gary M. Daddario, for Community Associations Institute, amicus curiae, submitted a brief. Stephen C. Reilly & Jennifer E. Greaney, for Bank of America, N.A., amicus curiae, submitted a brief. BROWN, J. The plaintiff, Drummer Boy Homes Association, Inc. (Association), appeals from a decision and order of the Appellate Division of the District Court in the Association’s consolidated actions against the owners of a condominium unit to recover unpaid common expenses. The Appellate Division ruled that, pursuant to G. L. c. 183A, § 6, the Association’s statutory lien for those expenses was prior to the first mortgage on the defendants’ unit only to the extent of amounts due for the six months preceding the institution of the first of the Association’s three consolidated lawsuits, and not for the three successive six-month periods preceding each suit. The defendants, Carolyn P. Britton and Randy Britton, appearing pro se, cross-appeal, claiming the judgment is void due to misnomer of the plaintiff.[2] We affirm. 1. Background. We summarize the undisputed facts and procedural history from the Appellate Division’s July 9, 2010, opinion, supplemented from the record. The Association provides for the common operation of a condominium complex in Lexington known as Drummer Boy Green. The defendants, owners of a unit in the complex, withheld payment of their monthly fees for common expenses in connection with a dispute with the Association over certain parking rules and associated fines. Pertinent here, the Association filed an action in the District Court on July 31, 2007, to recover the unpaid common expenses and to establish a […]
Massachusetts State Automobile Dealers Association, Inc., et al. v. Tesla Motors MA, Inc., et al. (Lawyers Weekly No. 10-163-14)
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; SJCReporter@sjc.state.ma.us SJC-11545 MASSACHUSETTS STATE AUTOMOBILE DEALERS ASSOCIATION, INC., & others[1] vs. TESLA MOTORS MA, INC., & another.[2] Norfolk. May 6, 2014. – September 15, 2014. Present: Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Motor Vehicle, Dealer. Consumer Protection Act, Motor vehicle franchise, Standing. Practice, Civil, Standing. Civil action commenced in the Superior Court Department on October 16, 2012. A motion to dismiss was heard by Kenneth J. Fishman, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Thomas S. Vangel (James F. Radke with him) for Massachusetts State Automobile Dealers Association, Inc., & others. Richard P. Campbell for the defendants. John E. Kwoka, Jr., pro se, amicus curiae, submitted a brief. BOTSFORD, J. In Beard Motors, Inc. v. Toyota Motor Distribs., Inc., 395 Mass. 428 (1985) (Beard Motors), this court held that a Massachusetts motor vehicle dealer did not have standing to maintain an action for an alleged violation of G. L. c. 93B, § 12A, against a motor vehicle distributor with which it was not affiliated. In the case before us, the principal question is whether amendments to the statute in 2002 broadened the scope of standing under c. 93B, such that Massachusetts motor vehicle dealers now have standing to maintain an action for an alleged violation of the statute against unaffiliated motor vehicle manufacturers or distributors. We hold that the 2002 amendments did not have this effect. Chapter 93B is aimed primarily at protecting motor vehicle dealers from injury caused by the unfair business practices of manufacturers and distributors with which they are associated, generally in a franchise relationship. We therefore affirm the judgment of the Superior Court dismissing the plaintiffs’ action on the basis of lack of standing. Procedural background. The plaintiff Massachusetts State Automobile Dealers Association, Inc. (MSADA), is a Statewide organization that represents the interests of new automobile and truck franchised dealerships in Massachusetts; two of the other plaintiffs, Connolly Buick Co., Inc., doing business as Herb Connolly Chevrolet, and Jake Kaplan’s Inc., doing business as Fisker Norwood, are Massachusetts motor vehicle dealers. The plaintiffs commenced this action against Tesla Motors, Inc., an automobile manufacturer, and its Massachusetts subsidiary, Tesla Motors MA, Inc., alleging that the defendants were operating “an automobile dealership showroom in the Natick Mall without a license […]
Categories: News Tags: 1016314, Association, Automobile, Dealers, Inc., Lawyers, massachusetts, Motors, state, Tesla, Weekly
U.S. Bank National Association v. Schumacher (Lawyers Weekly No. 10-041-14)
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; SJCReporter@sjc.state.ma.us SJC‑11490 U.S. BANK NATIONAL ASSOCIATION, trustee,[1] vs. JOHN SCHUMACHER & another.[2] Worcester. November 7, 2013. ‑ March 12, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Mortgage, Foreclosure, Real estate. Summary Process. Practice, Civil, Summary process. Jurisdiction, Summary process, Housing Court, Equitable. Notice. Housing Court, Jurisdiction. Summary process. Complaint filed in the Worcester County Division of the Housing Court Department on April 12, 2010. The case was heard by Timothy F. Sullivan, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Max Weinstein (Paul R. Collier, III, with him) for the defendants. Jeffrey S. Patterson (Morgan T. Nickerson with him) for the plaintiff. The following submitted briefs for amici curiae: Allen Acosta, Sora J. Kim, & Uri Y. Strauss for Community Legal Aid, Inc. Geoffry Walsh for National Consumer Law Center. Benjamin O. Adeyinka for Real Estate Bar Association for Massachusetts, Inc., & another. Martha Coakley, Attorney General, & M. Claire Masinton, Lisa R. Dyen, & Stephanie Kahn, Assistant Attorneys General, for the Commonwealth. Grace C. Ross, pro se. SPINA, J. General Laws c. 244, § 35A, inserted by St. 2007, c. 206, § 11, gives a mortgagor of residential real property in the Commonwealth a ninety-day right to cure a payment default before foreclosure proceedings may be commenced. In this summary process action, we consider whether § 35A is part of the foreclosure process itself and, if so, whether a mortgagee’s failure to comply strictly with its provisions, particularly the notice requirements, renders a foreclosure sale void. The property at issue was owned by the defendant, John Schumacher, and is located partially in the town of Clinton and partially in the town of Lancaster, at 1204 Main Street (property). On April 12, 2010, U.S. Bank National Association, as trustee for Bear Stearns Asset-Backed Securities Trust 2004-AC4 (bank), filed a summons and complaint in the Worcester County Division of the Housing Court Department against Schumacher, seeking to evict him from the property following its sale to the bank at a foreclosure auction. On May 25, 2012, a judge entered judgment in favor of the bank for possession, plus court costs. Schumacher appealed, and we transferred the case to this court on our own motion. We now conclude that G. L. c. 244, § 35A, is not part of […]
Categories: News Tags: 1004114, Association, Bank, Lawyers, National, Schumacher, U.S., Weekly
School Committee of Marshfield v. Marshfield Education Association (Lawyers Weekly No. 11-007-14)
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; SJCReporter@sjc.state.ma.us 12‑P‑1737 Appeals Court SCHOOL COMMITTEE OF MARSHFIELD vs. MARSHFIELD EDUCATION ASSOCIATION. No. 12‑P‑1737. Plymouth. October 8, 2013. ‑ January 28, 2014. Present: Kafker, Vuono, & Carhart, JJ. Contract, School teacher, Collective bargaining contract, Arbitration. Public Employment, Collective bargaining, Termination. School and School Committee, Collective bargaining, Termination of employment, Arbitration, Waiver. Labor, Public employment, Collective bargaining, Arbitration. Arbitration, School committee, Collective bargaining, Authority of arbitrator, Award. Waiver. License. Public Policy. Civil action commenced in the Superior Court Department on October 14, 2010. The case was heard by Robert C. Cosgrove, J., on motions for summary judgment. James A. Toomey (Tami L. Fay with him) for the plaintiff. John M. Becker for the defendant. Stephen J. Finnegan, for Massachusetts Association of School Committees, Inc., amicus curiae, submitted a brief. Michael J. Long, for Massachusetts Association of School Superintendents, amicus curiae, submitted a brief. KAFKER, J. Review of the arbitration award here requires us to examine the teacher licensing and termination provisions in the Education Reform Act of 1994, St. 1993, c. 71, as well as various provisions in a collective bargaining agreement, and explain their interrelationship. Gerard O’Sullivan was employed as a teacher by the Marshfield public school district (district) for almost eight years. O’Sullivan was terminated in 2008 when the school committee of Marshfield (school committee) took the position that his employment automatically ended by operation of law when his teaching license was not renewed by the Commissioner of Education (commissioner) and the commissioner denied the district superintendent’s request for a waiver of the license requirement. The school committee took no steps to terminate O’Sullivan in accordance with the terms of his teaching contract and the collective bargaining agreement (CBA) between the school committee and the Marshfield Education Association (association), to which O’Sullivan belonged. Nor did the school committee follow the teacher termination process set out in G. L. c. 71, § 42. Rather, the school committee asserted that without a license or waiver, O’Sullivan ceased to be employed as a matter of law, and as a result, was not entitled to any rights afforded a professional teacher under § 42, or under the CBA, including the one-year unpaid leave of absence O’Sullivan had requested so that he could fulfil the requirements necessary for licensure. Thereafter the association, “pursuant to the parties’ collective bargaining agreement,” […]
Categories: News Tags: 1100714, Association, Committee, Education, Lawyers, Marshfield, school, Weekly
Drakopoulos, et al. v. U.S. Bank National Association, et al. (Lawyers Weekly No. 10-126-13)
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‑11271 SUSANNE DRAKOPOULOS & another[1] vs. U.S. BANK NATIONAL ASSOCIATION, trustee,[2] & another.[3],[4] Essex. March 4, 2013. ‑ July 12, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Massachusetts Predatory Home Loan Practices Act. Consumer Protection Act, Mortgage of real estate. Real Property, Mortgage. Mortgage, Assignment. Assignment. Civil action commenced in the Superior Court Department on May 28, 2009. The case was heard by Robert A. Cornetta, J., on motions for summary judgment. The Supreme Judicial Court granted an application for direct appellate review. Paul R. Collier, III (Pamela A. Lebowitz & Max Weinstein with him) for the plaintiffs. Peter F. Carr, II, for the defendants. Martha Coakley, Attorney General, Glenn Kaplan, Aaron Lamb, & Gabriel O’Malley, Assistant Attorneys General, for the Commonwealth, amicus curiae, submitted a brief. LENK, J. In 2006, the plaintiffs, Susanne and Peter Drakopoulos,[5] refinanced their family home in Haverhill through Aegis Lending Corporation (lender), entering into a stated income home mortgage loan secured by a first mortgage on the home.[6] The total monthly payment on this loan proved to be approximately $ 600 greater than the plaintiffs’ total monthly income. Less than six months after the mortgage was funded, it was sold and assigned to the defendant U.S. Bank National Association (bank) as trustee of the Credit Suisse First Boston Mortgage Securities Corp., Home Equity Pass-Through Certificates, Series 2007-1 (trust). The loan was serviced by the defendant Select Portfolio Servicing, Inc. (servicer). The plaintiffs fell behind in their payments and defaulted on the loan; in November, 2008, the bank foreclosed on the mortgage. The plaintiffs thereafter brought this action, asserting, inter alia, violations of the Predatory Home Loan Practices Act, G. L. c. 183C (act); the Consumer Protection Act, G. L. c. 93A; and the Borrower’s Interest Act, G. L. c. 183, § 28C, The plaintiffs also asserted that the loan was unenforceable because it was unconscionable, and they sought damages and rescission for predatory lending practices. A Superior Court judge granted the defendants’ motions for summary judgment on all claims, based in large part on the ground that the defendants, as assignees, had no liability for the acts of the lender. The plaintiffs appealed. Because we conclude that the bank is not shielded from liability as a matter of law by virtue of its […]
Categories: News Tags: 1012613, Association, Bank, Drakopoulos, Lawyers, National, U.S., Weekly
Deutsche Bank National Association v. First American Title Insurance Company (Lawyers Weekly No. 10-124-13)
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‑11265 DEUTSCHE BANK NATIONAL ASSOCIATION,[1] trustee,[2] vs. FIRST AMERICAN TITLE INSURANCE COMPANY. Suffolk. March 7, 2013. ‑ July 11, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Insurance, Title insurance, Insurer’s obligation to defend. Real Property, Title insurance. Civil action commenced in the Superior Court Department on December 11, 2009. The case was heard by S. Jane Haggerty, J., on motions for summary judgment. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Richard E. Briansky (Jeffrey J. Pyle with him) for the plaintiff. Jason A. Manekas for the defendant. CORDY, J. In the present appeal, we consider whether the terms of a title insurance policy require First American Title Insurance Company (First American) to defend Deutsche Bank National Association (Deutsche Bank) in a lawsuit brought by a third party, Karla Brown,[3] seeking rescission of a note and first mortgage securing that note, originated by Deutsche Bank’s predecessor in interest in connection with the purchase of Brown’s home. Following First American’s denial of coverage, Deutsche Bank instituted this action seeking a judgment declaring that First American has a duty to defend it in Brown’s lawsuit and seeking statutory damages. We transferred the case here on our own motion following Deutsche Bank’s appeal from a Superior Court judge’s order granting summary judgment in favor of First American. On appeal, Deutsche Bank argues that the policy is susceptible to an interpretation that it covers the claims alleged in Brown’s complaint and that two exclusions contained within the policy do not preclude coverage.[4] Based on these arguments, Deutsche Bank contends that First American is under a contractual duty to defend it in the Brown lawsuit. In addition, Deutsche Bank renews its claim for damages under G. L. c. 93A due to First American’s alleged violation of G. L. c. 176D, § 3.[5] In response, First American argues that the allegations in Brown’s complaint do not trigger its duty to defend because they relate to a predatory lending scheme concerning the validity of the underlying note and not the enforceability of Deutsche Bank’s mortgage interest. Alternatively, First American argues that it need not defend Deutsche Bank because Brown’s claims are excluded by the policy. For the reasons discussed below, we conclude that the allegations in […]
O’Brien v. New England Police Benevolent Association, Local 911 (Lawyers Weekly No. 11-038-13)
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‑155 Appeals Court MICHAEL V. O’BRIEN[1] vs. NEW ENGLAND POLICE BENEVOLENT ASSOCIATION, LOCAL 911. No. 12‑P‑155. Suffolk. December 10, 2012. ‑ March 1, 2013. Present: Berry, Fecteau, & Carhart, JJ. Arbitration, Police, Collective bargaining, Authority of arbitrator. Public Policy. Municipal Corporations, Police, Collective bargaining. Police, Discharge, Collective bargaining. Public Employment, Police, Termination, Collective bargaining. Civil action commenced in the Superior Court Department on August 13, 2009. The case was heard by Kimberly S. Budd, J. Tim D. Norris for the plaintiff. Peter J. Perroni for the defendant. FECTEAU, J. The plaintiff, the city manager of the city of Worcester (city), appeals from a judgment of the Superior Court allowing the defendant’s motion to confirm an arbitration award. After hearing, the arbitrator, having found that a police officer’s actions were reasonable and did not justify his termination “for cause,” ordered the city to reinstate and make whole the officer, who had been terminated for actions that the city alleged constituted gross misconduct. The plaintiff contends that the arbitrator’s decision infringes on the city’s managerial prerogative and otherwise violates public policy by requiring the city to retain an officer who (i) violated three teenagers’ constitutional rights and (ii) engaged in felonious conduct by assaulting the teenagers without cause. The plaintiff also argues that the arbitrator exceeded his authority under the applicable collective bargaining agreement (CBA) by improperly interpreting and applying various statutory, regulatory, and other administrative rules incorporated therein. The judge was not persuaded that the arbitrator’s decision to reinstate the officer amounted to a violation of public policy and confirmed the arbitration award. We affirm. Background. From the arbitrator’s decision we draw the following facts, in summary fashion. On the evening of April 7, 2007, Worcester police Officer David Rawlston, who was on injury leave and in his home on Tory Fort Lane in Worcester with his wife and child, received a telephone call from his neighbors informing him that they had seen three unidentified teenagers lurking about his house and his driveway, looking into his automobiles, and moving toward his backyard. Rawlston retrieved his department-issued handgun and a flashlight. After searching the interior of his house, Rawlston met his neighbors outside in his driveway, where they pointed out several teenagers a few houses up the street and […]
Categories: News Tags: 1103813, Association, Benevolent, England, Lawyers, Local, O’Brien, Police, Weekly
Residences at Cape Ann Heights Condominium Association v. Halupowski, et al. (Lawyers Weekly No. 11-032-13)
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‑1689 Appeals Court RESIDENCES AT CAPE ANN HEIGHTS CONDOMINIUM ASSOCIATION vs. BRIAN HALUPOWSKI & others.[1] No. 12‑P‑1689. Essex. December 11, 2012. ‑ February 21, 2013. Present: Kafker, Milkey, & Agnes, JJ. Condominiums, Common expenses. Real Property, Condominium. Lien. Practice, Civil, Dismissal. Jurisdiction, Superior Court, In rem. Superior Court, Jurisdiction. Civil action commenced in the Superior Court Department on August 12, 2011. An appeal from a judgment of dismissal was heard by Green, J., in the Appeals Court, and the case was reported by him to the Appeals Court. Gary M. Daddario for the plaintiff. MILKEY, J. The plaintiff is the owners’ association of a residential condominium located in Gloucester. It brought this action to enforce a statutory lien on one of the condominium’s units. The basis of the lien was $ 3,759.55 in unpaid common expenses. Concluding that the association was unlikely to recover more than $ 25,000, a judge of the Superior Court dismissed the action without prejudice. See G. L. c. 212, § 3A(b). The association appealed pursuant to G. L. c. 212, § 3A(c), and the single justice reserved and reported the matter without decision to a full panel of this court. We reverse. Discussion. Chapter 183A of the General Laws governs the creation and administration of condominiums. Pursuant to § 6 of that chapter, the condominium’s common expenses are to be assessed against all units in the condominium in proportion to the units’ interest in the condominium’s common areas, and “[t]he organization of unit owners shall have a lien on a unit for any common expense assessment levied against that unit from the time the assessment becomes due.” G. L. c. 183A, § 6(a)(i), as amended by St. 1992, c. 400, § 7. These assessments are levied against the units themselves, and constitute “covenants running with the land.” Trustees of the Prince Condominium Trust v. Prosser, 412 Mass. 723, 725 (1992). The lien is enforceable through “a civil action brought in the superior court for the county where [the condominium] lies or in the district court in the judicial district where [the condominium] lies.” G. L. c. 254, § 5, as amended by St. 2010, c. 350, § 7. See G. L. c. 183A, § 6(c). The outcome of such a suit, if successful, is an order for the sale of the unit, subject to the procedures outlined in G. L. c. 254, […]
Categories: News Tags: 1103213, Association, Cape, Condominium, Halupowski, Heights, Lawyers, Residences, Weekly