Posts tagged "Corp."

Omega Demolition Corp. v. Walsh Construction Company, et al. (Lawyers Weekly No. 09-024-18)

COMMONWEALTH OF MASSACHUSETTS   SUFFOLK, ss.                                                                       SUPERIOR COURT                                                                                                 CIVIL ACTION 2017-1736-BLS 2     OMEGA DEMOLITION CORP., Plaintiff   vs.   WALSH CONSTRUCTION COMPANY,  MCCOURT CONSTRUCTION COMPANY, INC., WALSH-MCCOURT JV1, TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA and CONTINENTAL CASUALTY COMPANY, Defendants     MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ PARTIAL MOTION TO DISMISS   This dispute arises out of a subcontract for bridge demolition between Plaintiff Omega Demolition Corp. (Omega) and Defendants Walsh Construction Company (Walsh) and Walsh-McCourt JV1, (WMJV), a joint venture between Walsh and Defendant McCourt Construction Company, Inc. (McCourt).  Omega, the subcontractor, alleges, among other things, that Walsh and WMJV breached the subcontract by failing to furnish so-called “shielding and containment” for Omega’s use in performing its demolition work.  Walsh, WMJV, McCourt and their sureties, Defendants Travelers Casualty and Surety Company of America and Continental Casualty Company, now move to dismiss those portions of Counts I through V which are based on this allegation, arguing that it is clear from the language of the subcontract that neither Walsh nor WMJV had any obligation to provide shielding and containment for Omega.  This Court disagrees and concludes that the Motion must be DENIED.   BACKGROUND The following is drawn from the allegations in the Complaint together with the exhibits attached to it and documents referenced therein.  See Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2000); Waterson v. Page, 987 F.2d 1, 3-4 (1st Cir. 1993). In March 2013, the Massachusetts Department of Transportation (MassDOT) awarded a general contract (the Primary Contract) to WMJV, a joint venture between Walsh and McCourt, for a project that involved the replacement of or improvements to nine bridges and associated sections of I-95 between Newburyport and Salisbury (the Project).  Project responsibilities were divided between Walsh and McCourt, with Walsh responsible for the portion of the Project involving the reconstruction of the John Greenleaf Whittier Bridge which carries I-95 over the Merrimack River. In December 2013, Walsh, as agent and on behalf of WMJV, entered into a Subcontract with Omega to perform work that included the demolition of the Whittier Bridge and lead abatement.  The Subcontract consisted of a one page document to which several exhibits were attached, including Exhibit A (“Terms and Conditions”) and Exhibit B (“Scope, Clarification, Alternates and Unit Prices”).  Article 1.2 of the Subcontract, under  the heading “Mutual Obligations,” states that: Subcontractor assumes toward Contractor all of the obligations, risks and responsibilities that the Contract by the Contract Documents has assumed to the Owner, and the Subcontractor is bound to the Contract by those obligations in the same manner as the Contractor is bound to the Owner.   The Subcontract also contains other references the Primary Contract.  […]

Read more...

Posted by Massachusetts Legal Resources - March 9, 2018 at 5:25 pm

Categories: News   Tags: , , , , , , , ,

Walker, et al. v. Boston Medical Center Corp., et al. (Lawyers Weekly No. 12-081-17)

  1   COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss SUPERIOR COURT CIVIL ACTION 2015-01733-BLS1 KAMYRA WALKER and another,1 1 Anne O’ Rourke 2 MDF Transcription, LLC and Richard J. Fagan. on behalf of themselves and other similarly situated vs. BOSTON MEDICAL CENTER CORP. and others 2 MEMORANDUM OF DECISION AND ORDER ON DEFENDANT BOSTON MEDICAL CENTER CORP.’S MOTION FOR SUMMARY JUDGMENT In March 2014, defendant Boston Medical Center, Corp. (BMC) learned that another health care provider had inadvertently accessed a BMC patient’s medical information on a website maintained by defendant MDF Transcriptions, LLC (MDF), a medical transcription company used by both BMC and thisother provider.  It sent a letter to all its patients who had records that had been transcribed by MDF informingthem that there might have been unauthorized access to their medical information. After receiving this letter, the plaintiffs Kamyra Walker and Anne O’Rourke,filedthisputative classaction against BMC, MDF, and Richard Fagan, MDF’s owner and manager.  They assertthat the defendants are liableto them, and all other similarly situated BMC patients,for failing to ensure that their medical information was kept confidential.  The case is before the court on BMC’smotionfor summary judgment. BMCargues, among other things, that the plaintiffs lack standing to maintain the claims asserted2   against it.3 For the reasons that follow, the motion isALLOWED. 3 BMC also argues that the complaint fails to state a claim on which relief may be granted. Having found that the plaintiffs lack standing to bring their claims, the court does not reach this issue. 4 “FTP, or file transfer protocol, is a protocol for exchanging files over any computer network that supports the TCP/IP protocol (such as the Internet or an intranet).  SRI Int’l Inc. v. Internet Sec. Sys., 647 F. Supp. 2d 323, 332 n.2 (D. Del. 2009). 5 Plaintiffs note that JosephCumillus, BMC’s 30(b)(6) deponent, stated in his deposition:  “it was concerning to me that this information was on an FTP site that wasn’t password protected.”  The court understands this to refer BACKGROUND For several years, certain BMC medical practices used MDF to transcribe their physicians’ audio recordedpatientnotes.  The transcriptions were available through a “file transfer protocol” (FTP or .ftp) site maintained by MDF.4 On March 4, 2014, Pam Bronson of Access Sports Medicine(ASM), anotherMDF customer, telephoned BMC.  She informed BMC that she saw a BMC transcription record when she accessed MDF’s transcription portalusing her ASM user name and password.  In response, BMC contacted MDF,and MDF took down the FTP site.  Shortly thereafter, BMC terminated its relationship with MDF and notified patients, including the plaintiffs, of what had occurred. The notification letter sent to the plaintiffs informed them that their patient records from office visits with physicians “were inadvertently made accessible to […]

Read more...

Posted by Massachusetts Legal Resources - July 4, 2017 at 5:18 am

Categories: News   Tags: , , , , , , ,

Feeney v. Wave Systems Corp., et al. (Lawyers Weekly No. 12-173-16)

1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT SUCV2015-01938-BLS2 GERARD T. FEENEY, Plaintiff vs. WAVE SYSTEMS CORP., WILLIAM M. SOLMS, & WALTER A. SHEPHARD, Defendants MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND ON DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT This is an action alleging a failure to pay accrued vacation time in violation of the Massachusetts Wage Act, G.L.c. 149 §148. Plaintiff, a former Chief Financial Officer for Wave Systems Corp. (Wave), has sued not only Wave but two of its officers, CEO and President William M. Solms and CFO Walter A. Shephard. Wave is in bankruptcy, so the claims against it are stayed. Now before the Court are plaintiff’s Motion for Summary Judgment and defendants’ Motion for Partial Summary Judgment. This Court concludes that both motions must be DENIED, except as to the issue of notice raised by the defendants’ motion. Although certain facts in the summary judgment record are undisputed, the record also contains many fact disputes on critical issues. Briefly summarized, the record reveals the following. When Feeney was first hired by Wave in June 1998, the terms of his employment were set forth in an Employment Agreement. In addition to salary, Feeney was entitled to four weeks of vacation “in accordance with such executive benefit plans and policies as have been or may be established by Wave.” Upon termination, Feeney was entitled to be paid for all vacation 2 accrued as of the date of termination. In 2002, however, Wave issued an Employee Handbook which capped vacation pay at a total of 320 hours. There is a dispute of fact as to whether this applied to Feeney. Plaintiff relies heavily on the affidavit submitted by Wave’s former CEO Stephen Sprague in which Sprague states that he decided in or around 2004 not to apply the vacation cap in the Employee Handbook and to permit employees to accrue their vacation time without limitation. However, Solms has submitted a competing affidavit which states that the Handbook controlled and that a vacation cap has been and continued to be applied to employees, including executives like Feeney. Although plaintiff correctly notes that Solms joined the company only in October 2013 and therefore would have no personal knowledge about company policies before that date, there is other evidence in the summary judgment record which backs him up. Specifically, Kathleen Donovan, who worked in the Human Resources Department at Wave and was Wave’s Controller during the relevant time period, states in an affidavit that Sprague never informed her that he was changing what was contained in the Employee Handbook and that it was her understanding that a cap applied. Emails dated in 2007 and 2008 by other […]

Read more...

Posted by Massachusetts Legal Resources - December 30, 2016 at 6:31 pm

Categories: News   Tags: , , , , , ,

United Salvage Corp. of America v. Kradin (Lawyers Weekly No. 12-159-16)

1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION NO. 16-03131 BLS 2 UNITED SALVAGE CORP. OF AMERICA d/b/a FRAMINGHAM SALVAGE CO., Plaintiff vs. RICHARD KRADIN, Defendant MEMORANDUM OF DECISION ON PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION Plaintiffs United Salvage Corporation, doing business as Framingham Salvage Company (Framingham Salvage), instituted this action against the defendant Richard Kradin seeking enforcement of noncompetition and nonsolicitation agreements negotiated when Kradin sold his salvage business to plaintiff. A hearing on plaintiff’s request for a preliminary injunction was held on November 3, 2016. Ruling from the bench, this Court allowed that Motion and entered the Order proposed by plaintiff. Although this Court did articulate the reasons for its ruling in open court, this memorandum is issued by way of further explanation. Framingham Salvage is in the scrap metal and metal recycling business. In January 2015, it purchased all the assets of a competitor, Industrial Metal Recycling Inc. (IMR), owned by the defendant Kradin. In connection with that transaction, the parties executed a series of agreements, all of which are attached to the Verified Complaint. Kradin was represented by 2 counsel in negotiating these agreements, which reference each other and therefore are construed as a whole. Pursuant to an Asset Purchase Agreement, Framingham Salvage obtained all the assets of IMR, including its goodwill, in return for assuming liabilities totaling over $ 500,000 and forgiving IMR’s own $ 152,607 debt to plaintiff. Pursuant to an Employment Agreement, Framingham Salvage agreed to employ Kradin for a term of 60 months at a $ 250,000 annual salary. The parties executed a third agreement, entitled Proprietary Information and Inventions Agreement (the PII Agreement), which contains the restrictive covenants at issue in this case. Those covenants prohibit Kradin from competing with Framingham Salvage or soliciting the business of any customer with whom he has had personal contact or learned about during the course of his employment with the plaintiff. The covenants applied not only during the period of Kradin’s employment but continue for a period of five years from the date of the termination of his employment, regardless of the reason for the termination. Section 4(i ) if the PII Agreement further stated: Each of my obligations to be performed under this Agreement shall be interpreted independent of any other provisions of this Agreement, the Asset Purchase Agreement or my Employment Agreement and any other obligation the Company [Framingham Salvage] may have toward me. The existence of any claims by me against the Company, whether based on this Agreement or otherwise, shall not be a defense to the enforcement by the Company of any of my obligations under this Agreement.” On July 25, 2016, Framingham Salvage terminated Kradin, alleging that […]

Read more...

Posted by Massachusetts Legal Resources - December 6, 2016 at 6:29 pm

Categories: News   Tags: , , , , , , ,

Amaral v. Seekonk Grand Prix Corp. (Lawyers Weekly No. 11-008-16)

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-1848                                       Appeals Court   SUSAN M. AMARAL  vs.  SEEKONK GRAND PRIX CORP. No. 13-P-1848. Bristol.     October 6, 2014. – January 14, 2016.   Present:  Cypher, Grainger, & Maldonado, JJ.     Negligence, One owning or controlling real estate.       Civil action commenced in the Superior Court Department on May 2, 2012.   The case was heard by Richard T. Moses, J., on a motion for summary judgment.     Melody A. Alger for plaintiff. Jacqueline L. Allen for the defendant.     MALDONADO, J.  The Massachusetts recreational use statute[1]  provides that those who make their land available to the public for “recreational . . . purposes without imposing a charge or fee therefor, . . . shall not be liable for personal injuries . . . sustained by such members of the public . . . in the absence of wilful, wanton, or reckless conduct by [the landowner].”  G. L. c. 21, § 17C(a), as appearing in St. 1998, c. 268.  In this case, we are asked whether the statute bars a claim of negligence asserted by a mother (the plaintiff) who was injured by an errant “go-cart” while watching her sons drive go-carts at the defendant’s recreational facility.  The facility does not charge an admission onto the grounds but sells tickets for its rides, and the plaintiff had purchased tickets for use by her sons.  We conclude that the statute does not bar relief for injuries caused by negligence in these circumstances. Background.  Seekonk Grand Prix Corp.[2] (Grand Prix) is a Massachusetts corporation that operates a commercial recreational facility offering, among other activities, go-cart races.  Grand Prix charges a fee for the go-carts, miniature golf, bumper cars, and other similar activities.  It does not charge a fee to watch these activities, nor does it charge a fee to enter the facility. On May 25, 2009, the plaintiff took her two sons, ages eleven and thirteen years of age, to Grand Prix’s facility.  She purchased six tickets for her sons’ use.  At the time of the injury, she was standing behind a chain link fence as she watched her sons drive the go-carts.  After the other drivers had returned to the station, a go-cart driven by a young girl went through the fence and struck the plaintiff, causing a number of injuries, including a pulmonary embolism that resulted from a blood clot in her left leg. The plaintiff filed a negligence action […]

Read more...

Posted by Massachusetts Legal Resources - January 14, 2016 at 8:26 pm

Categories: News   Tags: , , , , , , ,

Celco Construction Corp. v. Town of Avon (Lawyers Weekly No. 11-019-15)

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-1880                                       Appeals Court   CELCO CONSTRUCTION CORP.  vs.  TOWN OF AVON. No. 13-P-1880. Norfolk.     October 8, 2014. – March 2, 2015.   Present:  Green, Rubin, & Agnes, JJ. Contract, Public works, Bidding for contract, Municipality, Modification, Promissory estoppel.  Public Works, Bidding procedure, Extra work.  Municipal Corporations, Contracts, Estoppel.       Civil action commenced in the Superior Court Department on October 22, 2010.   The case was heard by Patrick F. Brady, J., on a motion for summary judgment.     Raymond S. Ewer for the plaintiff. Doris R. MacKenzie Ehrens for the defendant.      GREEN, J.  In its successful bid to perform work for the defendant town of Avon (town) on a water main extension project, the plaintiff, Celco Construction Corp. (Celco), assigned a unit price of $ 0.01 as its charge to excavate each cubic yard of rock from the project site.  That price was substantially lower than Celco’s actual cost to remove each cubic yard of rock; Celco constructed its bid based on its belief that the amount of rock actually on site would be considerably less than the unverified estimate indicated in the contract bid documents, so that its low unit price would give it a competitive advantage when compared to other bidders who assigned a unit price to rock removal that more closely approximated the actual cost.[1]  When the amount of rock turned out to exceed the estimate by more than 1,500 cubic yards, Celco sought an “equitable adjustment” in the contract price to recover its increased costs for rock removal.  See G. L. c. 30, § 39N.  The town refused Celco’s request, Celco filed a complaint in the Superior Court, and a judge of that court allowed the town’s motion for summary judgment.  Celco appealed, and we now affirm the judgment. Background.  We summarize the undisputed facts appearing in the summary judgment record relevant to Celco’s claim of entitlement to an equitable adjustment in the contract price.[2]  In 2008, the town solicited bids to perform work on a project for the installation of water mains and associated reconstruction of roadways disturbed during such installation.  Celco submitted a bid and was awarded the contract.  Celco’s bid included unit prices for various elements of the work including, as relevant to its claim for equitable adjustment, a specified unit price of $ 0.01 per cubic yard for excavation and disposal of […]

Read more...

Posted by Massachusetts Legal Resources - March 2, 2015 at 5:27 pm

Categories: News   Tags: , , , , , , ,

The Bank of New York Mellon Corp. v. Wain, et al. (Lawyers Weekly No. 11-072-14)

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       13‑P‑101                                        Appeals Court   THE BANK OF NEW YORK MELLON CORP., trustee,[1]  vs.  DAVID WAIN & another.[2] No. 13‑P‑101. Suffolk.     November 1, 2013.  ‑  June 24, 2014. Present:  Kafker, Milkey, & Hines, JJ.   Mortgage, Assignment, Foreclosure.  Notice, Foreclosure of mortgage.  Real Property, Mortgage.  Practice, Civil, Summary judgment, Standing.  Assignment.  Land Court, Jurisdiction.  Jurisdiction, Land Court.       Civil action commenced in the Land Court Department on February 6, 2012.   The case was heard by Alexander H. Sands, III, J., on motions for summary judgment.     Jamie Ranney for the defendants. David W. Merritt for the plaintiff.     MILKEY, J.  David Wain and Donovan Kerr (collectively, the homeowners) owned property in Nantucket that was subject to a mortgage.  The Bank of New York Mellon Corp. (bank) acquired that mortgage through an assignment from the original mortgagee.  After the homeowners defaulted, the bank foreclosed and purchased the property at the foreclosure sale.  The bank then filed an action to quiet title, and the homeowners filed counterclaims seeking to challenge the validity of the foreclosure on various grounds.  In a detailed and thoughtful decision, a Land Court judge ruled in the bank’s favor on summary judgment.  We affirm, albeit on different grounds. Background.  Except as otherwise noted, the facts are undisputed.  At a closing for the property held on November 15, 2006, the homeowners executed a note and mortgage for $ 707,000.   The mortgage was recorded at the local registry of deeds the following day.  The original mortgagee was Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for the Union Capital Mortgage Business Trust. After the homeowners apparently were unable to keep up with their payments, a mortgage servicing entity known as American Home Mortgage Servicing, Inc. (American Home), sent the homeowners a “notice to cure letter” dated April 5, 2010.  See G. L. c. 244, § 35A.  That letter informed the homeowners that they were in default, it explained how the default could be cured, and it stated that if they failed to cure by July 4, 2010, a foreclosure would follow.  The letter stated that American Home was acting on behalf of “Tbw Mortgage-backed Trust 2007-1,” identified as “the Mortgagee of the Note and Deed of Trust associated with your real estate loan.” On or about July 14, 2010, a vice president of MERS executed a formal assignment […]

Read more...

Posted by Massachusetts Legal Resources - June 24, 2014 at 11:39 pm

Categories: News   Tags: , , , , , , ,

Karatihy v. Commonwealth Flats Development Corp. (Lawyers Weekly No. 11-114-13)

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‑1353                                       Appeals Court   RACHID KARATIHY  vs.  COMMONWEALTH FLATS DEVELOPMENT CORP.[1]     No. 12‑P‑1353. Suffolk.     June 4, 2013.  ‑  September 18, 2013. Present:  Cypher, Graham, & Agnes, JJ.   Employment, Termination, Retaliation.  Practice, Civil, Prima facie case.       Civil action commenced in the Superior Court Department on November 24, 2009.   The case was heard by Geraldine S. Hines, J., on a motion for summary judgment, and a motion to reconsider was considered by her.     Scott Adams for the plaintiff. Andrew C. Pickett (Kevin M. Sibbernsen with him) for the defendant.     CYPHER, J.  A Superior Court judge granted summary judgment in favor of Commonwealth Flats Development Corp., doing business as Seaport Hotel and World Trade Center (hotel), after Rachid Karatihy filed a complaint alleging retaliation by the hotel.  Karatihy alleged that the hotel terminated him in retaliation for being a named plaintiff in a lawsuit claiming the hotel violated G. L. c. 149, §§ 148 & 150 (Wage Act), and c. 149, § 152A (Tips Act). The judge ruled in favor of the hotel because Karatihy did not meet his burden on causation, and thus would be unable at trial to prove an essential element of the retaliation claim.  Karatihy maintains that there are disputes of material fact and there was sufficient evidence for a jury to find a causal connection and pretext for his termination, and therefore summary judgment was not proper.  We disagree and affirm summary judgment for the hotel. Background.  We summarize the facts in the light most favorable to the nonmoving party, Karatihy, reserving some facts for later discussion.  See Chervin v. Travelers Ins. Co., 448 Mass. 95, 96 (2006). Karatihy worked as a banquet server at the hotel from 2000 until his termination in 2009.  As a server, his duties included setting up for events and serving food and beverages.  Because attendance is imperative to the job and efficiency is key in serving its customers, the hotel implemented an attendance policy.  Employees are required to “call-out” and notify the hotel at least four hours in advance if they will be late or will miss a shift so the hotel can find a replacement.  All of the “call-outs” are recorded and tracked for each employee.  The attendance policy also placed limits on the number of allowable absences in a given period.  This attendance […]

Read more...

Posted by Massachusetts Legal Resources - September 18, 2013 at 2:52 pm

Categories: News   Tags: , , , , , , ,

Franklin Office Park Realty Corp. v. Commissioner of the Department of Environmental Protection (Lawyers Weekly No. 10-172-13)

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‑11334   FRANKLIN OFFICE PARK REALTY CORP.  vs.  COMMISSIONER OF THE DEPARTMENT OF ENVIRONMENTAL PROTECTION.     Worcester.     May 9, 2013.  ‑  September 16, 2013. Present:  Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.       Department of Environmental Protection.  Administrative Law, Agency’s interpretation of statute, Regulations, Judicial review.  Practice, Civil, Review of administrative action.  Environment, Air pollution.  Asbestos.  Statute, Construction.  Regulation.  Words, “Wilful.”       Civil action commenced in the Superior Court Department on March 22, 2011.   The case was heard by John S. McCann, J., on a motion for judgment on the pleadings.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     Louis M. Dundin, Assistant Attorney General, for the defendant. Paul E. White for the plaintiff.       DUFFLY, J.  The plaintiff, Franklin Office Park Realty Corp. (Franklin), challenges the assessment of a penalty in the amount of $ 18,225, imposed by the Department of Environmental Protection (DEP) for improper handling and disposal of roof shingles that contained asbestos.  Franklin argues that, pursuant to G. L. c. 21A, § 16 (administrative penalties act), it was entitled to a notice of noncompliance and the opportunity to cure any violations before a penalty was imposed.  The commissioner of the DEP (commissioner) accepted the recommendation of a hearing officer that he affirm the penalty on the ground that Franklin’s failure to comply fell within one of six exceptions to the notice requirement because it was “willful and not the result of error” (wilfulness exception), see G. L. c. 21A, § 16, which he interpreted as requiring only a showing of “the intent to do an act that violates the law if done.”  Franklin sought judicial review pursuant to G. L. c. 30A, § 14; a judge of the Superior Court determined some of the facts found by the hearing officer to be unsupported by substantial evidence, and that the DEP’s interpretation of G. L. c. 21A, § 16, was unreasonable and thus not entitled to deference.  DEP appealed, and we transferred the case to this court on our own motion. We conclude that the language “willful and not the result of error” in G. L. c. 21A, § 16, when considered in the context of the statutory scheme and the Legislature’s intent, clearly requires a showing that the party who has not complied with the law knew or should […]

Read more...

Posted by Massachusetts Legal Resources - September 17, 2013 at 1:50 pm

Categories: News   Tags: , , , , , , , , , , ,

Hugenberger, et al. v. Alpha Management Corp. (Lawyers Weekly No. 11-087-13)

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‑1788                                       Appeals Court   CHRIS HUGENBERGER & another[1]  vs.  ALPHA MANAGEMENT CORP.       No. 12‑P‑1788.      June 28, 2013.     Consumer Protection Act, Demand letter.   The plaintiffs appeal from a decision of the Appellate Division of the Boston Municipal Court Department (BMC) affirming the trial judge’s allowing the defendant’s motion for reconsideration and ordering the entry of judgment for the defendant.  The trial judge concluded that “the failure to offer the [G. L. c.] 93A demand letter, proof of a required element in the plaintiffs’ case, was a fatal mistake.”  The plaintiffs claim error in this ruling on the ground that they were not required, in the circumstances, to offer the demand letter in evidence and that the failure to do so was not manifestly wrong so as to allow the judge to reconsider his earlier denial of the defendant’s motion for a directed finding.  As we disagree, we affirm.     The plaintiffs brought a complaint in the BMC, alleging, as here relevant, a claim against the defendant, a residential property management company, under G. L. c. 93A, § 2, for reneging on a promised lease of premises.  After a bench trial, the judge ordered judgment to enter in favor of the plaintiffs in the amount of $ 1,851, which he doubled to $ 3,702, and awarded attorney’s fees of $ 6,000.  The judge also made the finding the “G. L. c. 93A demand letter was not offered as an exhibit by the plaintiff during the trial.  A copy of the 93A demand letter was attached as an exhibit to the complaint.”  Furthermore, the defendant requested a ruling of law that its response to the plaintiffs’ demand letter was reasonable.  The judge ruled in response:  “Requests finding of fact.  Defendant’s response not in evidence.  Denied.”  The defendant filed a motion for reconsideration of the ruling on its motion for a directed finding, asserting that the plaintiffs’ failure to introduce the demand letter in evidence was fatal to their claim.[2]  The plaintiffs opposed the motion, asserting in part that the defendant itself had established receipt of the demand letter in its request for a ruling of law.  The judge allowed reconsideration and allowed the defendant’s motion for a directed finding in its favor.  The Appellate Division agreed, stating:  “[b]ecause the demand letter is an element that must be proven […]

Read more...

Posted by Massachusetts Legal Resources - June 28, 2013 at 3:06 pm

Categories: News   Tags: , , , , , ,

Next Page »