Posts tagged "Beliveau"

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NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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


Posted by Massachusetts Legal Resources - July 10, 2015 at 3:00 am

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