James B. Nutter & Company v. Estate of Murphy, et al. (and two consolidated cases) (Lawyers Weekly No. 10-013-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12325 JAMES B. NUTTER & COMPANY vs. ESTATE OF BARBARA A. MURPHY & others[1] (and two consolidated cases[2]). Suffolk. October 2, 2017. – January 18, 2018. Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ. Mortgage, Foreclosure. Real Property, Mortgage. Civil actions commenced in the Land Court Department on October 27, 2015; January 28, 2016; and February 11, 2016, respectively. A motion for partial judgment on the pleadings was heard by Robert B. Foster, J., and the cases were reported by him to the Appeals Court. The Supreme Judicial Court on its own initiative transferred the cases from the Appeals Court. Daniel Bahls (Uri Strauss also present) for Brett Jamieson. Effie Gikas Tchobanian for the plaintiff. Elaine Benkoski, for Estate of Barbara A. Murphy & others, was present but did not argue. GANTS, C.J. In 2007 and 2008, three elderly homeowners obtained loans from James B. Nutter & Company (Nutter), secured by reverse mortgages on their homes. A few years later, two of the borrowers died; the third took ill and could no longer live in her home. Alleging default, Nutter now seeks to foreclose on the mortgages. Rather than proceed directly to foreclosure, however, Nutter brought separate actions in the Land Court against each borrower or the executors of their estate,[3] seeking in each case a declaratory judgment allowing it to foreclose pursuant to the statutory power of sale. Each of the reverse mortgages adhered to Nutter’s standard form, which states in paragraph 20 that, in the event of default, “[l]ender may invoke the power of sale and any other remedies permitted by applicable law.” The issue we must resolve is whether this language in the reverse mortgage incorporates the statutory power of sale as set forth in G. L. c. 183, § 21, and allows Nutter to foreclose on the mortgaged property in accordance with the requirements in § 21. We hold that it does. Background. 1. Reverse mortgages. For many retirees, one of the most reliable potential sources of income in later life is the accrued equity in their homes. See Consumer Financial Protection Bureau, Issue Brief: The costs and risks of using a reverse mortgage to delay collecting Social Security, at 8 (2017). In order to secure cash for their living expenses, many […]
Commonwealth v. James (Lawyers Weekly No. 10-125-17)
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-12196 COMMONWEALTH vs. STEVEN JAMES. Suffolk. March 6, 2017. – August 1, 2017. Present: Gants, C.J., Lenk, Hines, Lowy, & Budd, JJ. Practice, Criminal, Capital case, Postconviction relief. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on February 9, 2016. The case was reported by Hines, J. Rosemary Curran Scapicchio (Dennis M. Toomey also present) for the defendant. Mary E. Lee, Assistant District Attorney, for the Commonwealth. HINES, J. The narrow question before us, here on a reservation and report from a single justice of the county court, is whether a juvenile who has been convicted of murder in the first degree, and whose conviction has been affirmed by this court after plenary review, is thereafter subject to the gatekeeper provision of G. L. c. 278, § 33E. We conclude that the gatekeeper provision applies. The case should now proceed in the county court as a gatekeeper matter. Background. The defendant, Steven James, was convicted in 1995 of murder in the first degree on a theory of extreme atrocity or cruelty. He was sentenced to a mandatory term of life without the possibility of parole, pursuant to G. L. c. 265, § 2, as amended through St. 1982, c. 554, § 3. See Commonwealth v. James, 427 Mass. 312, 313, 318 (1998). He was seventeen years old when the killing occurred in 1994, id. at 315, and under the law at that time was considered an adult for purposes of the criminal proceedings. See Watts v. Commonwealth, 468 Mass. 49, 50-51 (2014). On appeal, this court “reviewed the entire record and conclude[d] that relief pursuant to G. L. c. 278, § 33E, [was] not warranted,” and affirmed James’s conviction. James, supra at 318. In 2013, James filed a motion for a new trial in the Superior Court, with multiple subsequent supplements. A judge other than the trial judge, who had since retired, held a nonevidentiary hearing and denied the motion. However, because James was under the age of eighteen at the time of the killing, he was resentenced to life with the possibility of parole. See Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass. 655, 658 (2013), S.C., 471 Mass. 12 (2015) (“imposition of a sentence of life in prison without […]
Robert and Ardis James Foundation, et al. v. Meyers (Lawyers Weekly No. 10-055-16)
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-11898 ROBERT AND ARDIS JAMES FOUNDATION & another[1] vs. DANIEL MAXWELL MEYERS. Suffolk. December 10, 2015. – April 21, 2016. Present: Gants, C.J., Spina, Cordy, Duffly, Lenk, & Hines, JJ. Contract, Implied covenant of good faith and fair dealing. Damages, Breach of contract, Sale of stock. Corporation, Stock. Civil action commenced in the Superior Court Department on November 16, 2006. After transfer to the business litigation session, the case was heard by Christine M. Roach, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Joseph L. Bierwirth, Jr. (Ryan P. McManus & Thomas J. Carey, Jr., with him) for the plaintiffs. Kevin P. Martin (Katherine C. Sadeck with him) for the defendant. LENK, J. This case considers whether there was a breach of the implied covenant of good faith and fair dealing in a contract dispute between two sophisticated investors. In 1998 and 1999, Robert James, acting on behalf of the Robert and Ardis James Foundation charitable foundation (foundation), agreed to advance over $ 650,000 to Daniel Meyers, the defendant, to purchase shares of stock in what was then a young, privately held company that Meyers had cofounded, in exchange for a portion of the proceeds of an eventual sale of those shares. The agreement was memorialized in two single-page, non-integrated letters that set out formulas by which to calculate the distribution of proceeds, but did not discuss the timing of sale. In 2006, following nearly two years of unsuccessful efforts to get Meyers to discuss bringing the agreements to a close, the foundation filed a complaint against Meyers seeking specific performance and damages. After a six-day bench trial in the business litigation session of the Superior Court in 2011, a judge found that Meyers had committed a breach of the implied covenant of good faith and fair dealing, and awarded damages based on a date of breach of July 31, 2006.[2] The Appeals Court reversed, see Robert & Ardis James Found. v. Meyers, 87 Mass. App. Ct. 85, 86 (2015), and we granted the foundation’s application for further appellate review. Meyers argues that he did not commit a breach of the implied covenant, and that the damages award should be vacated. We conclude that the trial judge’s decision was not erroneous, and affirm the […]
Robert and Ardis James Foundation, et al. v. Meyers (Lawyers Weekly No. 11-011-15)
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-1169 Appeals Court ROBERT AND ARDIS JAMES FOUNDATION & another[1] vs. DANIEL MAXWELL MEYERS. No. 13-P-1169. Suffolk. March 14, 2014. – February 12, 2015. Present: Cohen, Graham, & Grainger, JJ. Contract, Implied covenant of good faith and fair dealing. Damages, Breach of contract, Sale of stock. Corporation, Stock. Civil action commenced in the Superior Court Department on November 16, 2006. After transfer to the business litigation session, the case was heard by Christine M. Roach, J. Kevin P. Martin (Katherine Sadeck with him) for the defendant. Joseph L. Bierwirth (Thomas J. Carey, Jr. with him) for the plaintiffs. GRAHAM, J. This action arose out of two one-page letter agreements (letter agreements or agreements) between plaintiff Robert James and the defendant, Daniel Maxwell Meyers,[2] in which James agreed to provide Meyers with $ 653,340 for the purchase by Meyers of 31,107 shares of stock in the First Marblehead Corporation, a company cofounded by Meyers. In exchange for supplying Meyers with the funds, James would receive the right to participate in the proceeds of the sale of the 31,107 shares. However, notably absent from each letter agreement was any provision governing its termination or establishing conditions upon which Meyers would be required to sell their stock.[3] In the fall of 2004, James’s daughter, Catherine James Paglia (Catherine[4]), seemingly on behalf of the James family, inquired of Meyers, seeking termination of the agreements. Meyers declined and, on November 16, 2006, the plaintiffs filed a multicount complaint in Superior Court, later amended, asserting claims for division and distribution of the shares (count I), dissolution of a partnership or joint venture (count II), declaration of an agency relationship (count III), breach of an implied term of the contract (count IV), breach of the implied covenant of good faith and fair dealing (count V), payment of a share of the dividends (count VI), and declaratory judgment (count VII). After a six-day bench trial in April, 2011, the trial judge found in favor of Meyers on counts I through IV and VI. She did, however, determine that on July 31, 2006, Meyers breached the implied covenant of good faith and fair dealing (count V). The judge awarded the plaintiffs damages based on the fair market value of the shares of the stock as of the time of the […]