Bellermann, et al. v. Fitchburg Gas and Electric Light Company (Lawyers Weekly No. 10-110-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 SJC-11979 MARCIA D. BELLERMANN & others[1] vs. FITCHBURG GAS AND ELECTRIC LIGHT COMPANY. Worcester. March 10, 2016. – July 29, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.[2] Electric Company. Public Utilities, Electric company. Practice, Civil, Class action, Consumer protection case. Consumer Protection Act, Class action, Unfair or deceptive act. Civil action commenced in the Superior Court Department on January 7, 2009. Following review by this court, 470 Mass. 43 (2014), a renewed motion for class certification was heard by Richard T. Tucker, J., and a decision allowing class certification was reported by him to the Appeals Court. The Supreme Judicial Court granted an application for direct appellate review. Gavin J. Rooney, of New Jersey (Anne W. Chisholm & Eric R. Passeggio with him) for the defendant. Deborah Phillips (Barry M. Altman & Edwin H. Howard with her) for the plaintiffs. Robin L. Main, for Massachusetts Electric Company & others, amici curiae, submitted a brief. DUFFLY, J. In Bellermann v. Fitchburg Gas & Elec. Light Co., 470 Mass. 43 (2014) (Bellermann I), we affirmed a Superior Court judge’s denial of a motion for class certification of residential and business customers of the defendant, Fitchburg Gas and Electric Light Company (FG&E).[3] In that case, the plaintiffs, who lost electric power during a major winter ice storm in 2008 that struck significant portions of the northeast (Winter Storm 2008), sought class certification under G. L. c. 93A, §§ 9 (2) and 11, for themselves and other users of electricity who were injured by FG&E’s assertedly inadequate preparation for and response to Winter Storm 2008. See Bellermann I, supra at 44-46. The plaintiffs’ efforts to obtain class certification in that case were premised on FG&E’s asserted failure properly to prepare and plan for Winter Storm 2008, which prolonged the power outages the plaintiffs experienced, and on FG&E’s deceptive communications made before and during the storm that resulted in the plaintiffs’ inability to plan for the extended outages.[4] See id. at 45, 54. We concluded that there was no abuse of discretion in the judge’s determination that the record did not support class certification on these theories, because the asserted injuries suffered by class members were too dissimilar. See id. at 53-57. We also observed, however, that the plaintiffs had proposed […]
Deutsche Bank National Trust Company v. Fitchburg Capital, LLC, et al. (Lawyers Weekly No. 10-062-15)
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 SJC-11756 DEUTSCHE BANK NATIONAL TRUST COMPANY, trustee,[1] vs. FITCHBURG CAPITAL, LLC, & others.[2] Suffolk. January 5, 2015. – April 15, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Mortgage, Real estate, Discharge, Foreclosure, Dragnet clause. Real Property, Mortgage. Limitations, Statute of. Practice, Civil, Summary judgment, Statute of limitations. Statute, Retroactive application, Construction. Due Process of Law, Retroactive application of statute, Statute of limitations. Constitutional Law, Contract clause. Civil action commenced in the Land Court Department on July 2, 2012. A motion for partial summary judgment was heard by Robert B. Foster, J., and entry of separate and final judgment was ordered by him. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Jeffrey T. Angley (Robert K. Hopkins with him) for Fitchburg Capital, LLC. Jeffrey B. Loeb for the plaintiff. Thomas O. Moriarty, for Real Estate Bar Association for Massachusetts, Inc., & another, amici curiae, submitted a brief. Philip F. Coppinger, for Ry-Co International, Ltd., amicus curiae, submitted a brief. HINES, J. Under a 2006 amendment to the so-called “obsolete mortgage” statute, a mortgage becomes unenforceable after a certain number of years: a mortgage in which the term or maturity date is stated becomes unenforceable five years after the expiration of the term and a mortgage in which the term or maturity date is not stated becomes unenforceable thirty-five years after recording.[3] G. L. c. 260, § 33, as amended by St. 2006, c. 63, § 6. The defendant Fitchburg Capital, LLC (Fitchburg), foreclosed on two mortgages at a time when both mortgages would be unenforceable under the amended statute if the five-year statute of limitations was applicable. In this appeal, we interpret the amended statute to determine whether a mortgage stating only the term or maturity date of the underlying debt is a “mortgage in which the term or maturity date of the mortgage is stated” under G. L. c. 260, § 33, and whether the retroactive application of § 33 to mortgages recorded before the effective date of the amendment is constitutional. The plaintiff, Deutsche Bank National Trust Company, as trustee of Ameriquest Mortgage Securities, Inc., Asset-backed Pass-through Certificates, Series 2004-R11 under the Pooling and Servicing Agreement dated as of December 1, 2004 (Deutsche Bank), filed a motion for partial summary judgment seeking a declaration that the mortgages are […]
Bellerman, et al. v. Fitchburg Gas and Electric Light Company (Lawyers Weekly No. 10-180-14)
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-11492 MARCIA D. BELLERMANN & others1 vs. FITCHBURG GAS AND ELECTRIC LIGHT COMPANY. Worcester. March 4, 2014. – October 30, 2014. Present: Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Electric Company. Public Utilities, Electric company. Practice, Civil, Class action, Consumer protection case, Judicial discretion. Consumer Protection Act, Class action, Unfair or deceptive act. Administrative Law, Preclusive effect of decision. Collateral Estoppel. Estoppel. Civil action commenced in the Superior Court Department on January 7, 2009. Motions for class certification and for summary judgment were heard by Douglas H. Wilkins, J., and a decision denying class certification was reported by him to the Appeals Court. A proceeding for interlocutory review was heard in the Appeals court by Cynthia J. Cohen, J., and after consolidation of the appeals, the Supreme Judicial Court granted an application for direct appellate review. Barry M. Altman & C. Deborah Phillips (James L. O’Connor, Jr., Edwin H. Howard, & James M. Galliher with them) for the plaintiffs. Gavin J. Rooney, of New Jersey (Natalie J. Kraner, of New Jersey, with him) for the defendant. Robin L. Main for Massachusetts Electric Company & others, amici curiae, submitted a brief. DUFFLY, J. This case arises out of a major ice storm that struck areas of the northeastern United States in December, 2008 (Winter Storm 2008). The defendant, Fitchburg Gas and Electric Light Company (FG&E), is a public utility that provides electric service to customers in the municipalities of Fitchburg, Lunenburg, Townsend, and Ashby, which were among those affected by the storm. FG&E is one of the utilities owned by Unitil Corporation (Unitil). The plaintiffs are twelve residential and business customers of FG&E who lost power during Winter Storm 2008. They filed a suit in the Superior Court on behalf of themselves and those similarly situated, asserting claims of gross negligence and violation of G. L. c. 93A. Pursuant to G. L. c. 93A, §§ 9 (2) and 11,2 and Mass. R. Civ. P. 23, as amended, 452 Mass. 1401 (2008) (rule 23),3 the plaintiffs moved to certify a class consisting of FG&E’s residential and business customers; their dependents, tenants, and employees; and other users of electricity who sustained damages as a result of FG&E’s inadequate preparation for and response to Winter Storm 2008. The parties also filed cross-motions for partial summary judgment on the plaintiffs’ […]
Fitchburg Gas and Electric Light Company, et al. v. Department of Public Utilities (Lawyers Weekly No. 10-068-14)
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‑11397 FITCHBURG GAS AND ELECTRIC LIGHT COMPANY[1] & others[2] vs. DEPARTMENT OF PUBLIC UTILITIES. Suffolk. December 5, 2013. ‑ April 14, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Department of Public Utilities. Public Utilities, Electric company, Rate setting, Costs of service, Rate of return. Constitutional Law, Taking of property. Due Process of Law, Taking of property, Regulatory proceeding. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on October 17, 2012. The case was reported by Botsford, J. David S. Rosenzweig (Erika J. Hafner with him) for the plaintiffs. Pierce O. Cray, Assistant Attorney General (Rebecca Tepper with him) for the defendant. CORDY, J. This matter comes before us on a reservation and report, without decision, by a single justice of this court of an administrative appeal filed pursuant to G. L. c. 25, § 5. The petitioners, electric companies as defined by G. L. c. 164, § 1, within the jurisdiction of the Department of Public Utilities (department), appeal a final order of the department imposing on the petitioners monetary assessments for the Storm Trust Fund (assessment), pursuant to G. L. c. 25, §§ 12P, 18. In accordance with the language of the fourth sentence of G. L. c. 25, § 18, third par., the order specifically prohibited the petitioners from seeking recovery of the assessment in any rate proceeding. The petitioners claim that this prohibition on recovery, as required by the statute and imposed by the department’s order, is an unconstitutional taking in violation of art. 10 of the Massachusetts Declaration of Rights and the Fifth and Fourteenth Amendments to the United States Constitution. They seek a declaration that the recovery prohibition is unconstitutional, severance of the prohibition from the remainder of the statutory scheme, and reversal of the department’s order. The petitioners essentially assert three grounds on which the recovery prohibition constitutes a taking. First, they claim that the recovery prohibition, as it operates on the assessment, effects a per se taking without just compensation. We conclude that it does not, because a mere obligation to pay such an assessment, regardless of whether recovery is permitted or precluded, does not rise to the level of a compensable per se taking. Second, they assert that it constitutes a taking by way of a confiscatory rate because the recovery […]