CMJ Management Company v. Wilkerson (Lawyers Weekly No. 11-038-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 16-P-426 Appeals Court CMJ MANAGEMENT COMPANY[1] vs. PATRICIA WILKERSON. No. 16-P-426. Suffolk. December 1, 2016. – March 31, 2017. Present: Cypher, Maldonado, & Blake, JJ. Housing. Landlord and Tenant, Termination of lease. Summary Process. Practice, Civil, Summary process, Jury trial. Summary process. Complaint filed in the Boston Division of the Housing Court Department on September 15, 2014. The case was heard by MaryLou Muirhead, J. Stephanie Schuyler (Hoang Nguyen also present) for the tenant. John G. Hofmann for the landlord. CYPHER, J. Patricia Wilkerson appeals from a Housing Court judgment, entered following a bench trial, that awarded the plaintiff possession of an apartment in which Wilkerson resided with her three grandchildren. Wilkerson argues that the judge erred in concluding that the conduct of her juvenile grandson constituted criminal activity that materially breached her lease. In addition, Wilkerson argues that the judge erred by striking her request for a jury trial after she failed to comply with a Housing Court pretrial conference order requiring the submission of a pretrial conference memorandum. Background. We summarize the facts from the judge’s findings, reserving some facts for later discussion.[2] Wilkerson is a resident at the Harbor Point Apartments in the Dorchester section of Boston (Harbor Point). CMJ Management Company (CMJ) is Harbor Point’s managing agent. Harbor Point is a housing development combining market-rate and subsidized units. Of the 1,283 units, 400 are subsidized pursuant to the Section 8 Housing Assistance Program of the United States Housing Act, 42 U.S.C. §§ 1437 et seq. (Section 8 program). Wilkerson had custody of her fourteen year old grandson, who, along with his two adult brothers, were authorized occupants of her apartment. In July of 2014, while playing with other children in one of the common areas of the apartment complex, the juvenile grandson fired a BB gun multiple times, injuring two juvenile residents. Later that day, a Harbor Point security guard went to Wilkerson’s apartment, spoke with Wilkerson and the juvenile about the incident, and confiscated the BB gun. The parents of the injured children apparently did not pursue criminal charges. The following week Wilkerson received a notice to quit, terminating her lease. Pursuant to the Section 8 program, Wilkerson’s tenancy is subsidized by the United States Department of Housing and Urban Development (HUD). […]
Tam, et al. v. Federal Management Co., Inc., et al. (Lawyers Weekly No. 12-154-16)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION No. 2013-2347 BLS 1 SIEW-MEY TAM, on behalf of herself and others similarly situated, and MARY JANE RAYMOND vs. FEDERAL MANAGEMENT CO., INC., RICHARD HENKEN, DAVID FLAD AND PETER LEWIS MEMORANDUM AND ORDER ON DEFENDANTS’ MOTION FOR DECERTIFICATION OF CLASS ACTION On December 16, 2015, this court (Brieger, J.) allowed a motion to certify a class of current and former employees of Federal Management Co., Inc. (“Federal”) alleging the failure of Federal to pay them for overtime hours worked. The class of employees certified was “all current and former Property Managers” employed by Federal from January 1, 2005, to the present.1 The Court carefully reviewed each of the prerequisites for class certification under Mass. R. Civ. P. 23 and found that they were satisfied. Among other findings, the Court concluded that on the pre-discovery record plaintiffs, Siew-Mey Tam and Mary Jane Raymond, were adequate representatives of a class of approximately 40 current or former property 1 Memorandum of Decision and Order on Plaintiffs’ Motion to Certify a Class (“Class Cert Order”). The Class Cert Order did not expressly address the dates inclusive for the putative class. Instead, the court stated that plaintiffs’ motion for class certification is “ALLOWED.” In plaintiffs’ motion for class certification, the time period for the class sought by plaintiffs was “March 1, 2000, to the present.” However, in plaintiffs’ Opposition to the present motion for decertification, plaintiffs assert that the certified class time period is from “January 1, 2005, to the present.” Opposition, p. 2. Accordingly, I adopt plaintiffs’ assertion and find that the presently certified class period is from January 1, 2005 to the present. 1 managers. Defendants took an interlocutory appeal of the class certification order. The Appeals Court affirmed. Following the certification, discovery by both sides ensued, including the depositions of the named plaintiffs. Federal, and the individual defendants, now move to decertify the class based, principally, on the ground that discovery has shown that Tam and Raymond are not adequate class representatives. Defendants also take the opportunity to ask the Court to re-visit all of the other criteria for class certification. For the reasons stated below, the motion will be allowed. BACKGROUND In the Class Cert Order, Judge Brieger noted that the facts of this case are relatively straightforward and undisputed. Federal manages seventeen residential, commercial and retail properties, providing building operations, financial administration, leasing and regulatory compliance services. For each property Federal employs a property manager who may have anywhere from two to seventeen employees reporting to her/him. Raymond was employed by Federal as a property manager from February 1990 to March 2011. Tam was employed by Federal as a property manager […]
Vitali v. Reit Management & Research, LLC (Lawyers Weekly No. 11-119-15)
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-1304 Appeals Court DONNA VITALI vs. REIT MANAGEMENT & RESEARCH, LLC. No. 14-P-1304. Suffolk. May 8, 2015. – August 21, 2015. Present: Green, Milkey, & Maldonado, JJ. Labor, Overtime compensation, Wages. Practice, Civil, Summary judgment. Civil action commenced in the Superior Court Department on February 13, 2012. The case was heard by Mitchell H. Kaplan, J., on a motion for summary judgment. Stephen S. Churchill for the plaintiff. Jennifer B. Furey (Paul F. Beckwith with her) for the defendant. MILKEY, J. The plaintiff, Donna Vitali, worked as a bookkeeper for the defendant, Reit Management and Research, LLC (company), a property management firm. She was paid by the hour and, pursuant to both statute and company policy, she was to be paid overtime at one and one-half times the regular rate for any work done in excess of forty hours in a given week. See G. L. c. 151, § 1A. She brought the current action alleging that she accrued overtime that was not credited by the system the company had in place to keep track of employee hours. In a detailed and thoughtful decision, a Superior Court judge allowed the company’s motion for summary judgment. Because we conclude that there are material facts in dispute, we reverse. Standard of review. Our review of the allowance of a motion for summary judgment is de novo. Deutsche Bank Natl. Trust Co. v. Fitchburg Capital, LLC, 471 Mass. 248, 252-253 (2015). Disputed facts are to be read in the light most favorable to the nonmoving party, in this case, Vitali. Id. at 250. “The moving party must affirmatively show that there is no real issue of fact, all doubts being resolved against the party moving for summary judgment.” Shawmut Worcester County Bank, N.A. v. Miller, 398 Mass. 273, 281 (1986) (quotation omitted). Evidence in the record is considered together with all reasonable inferences to be drawn from the record. Godfrey v. Globe Newspaper Co., 457 Mass. 113, 119 (2010). Background. The nature of the dispute. Vitali was scheduled to work from nine to five, five days per week, with a paid one-hour lunch break. Both sides agree that lunch breaks do not count toward overtime. They also agree that if an employee has to work during what otherwise would be a lunch break, the employee gets no […]
First Bostonview Management, LLC v. Bostonview Corporation, et al. (Lawyers Weekly No. 11-118-15)
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-1237 Appeals Court FIRST BOSTONVIEW MANAGEMENT, LLC vs. BOSTONVIEW CORPORATION & others.[1] No. 13-P-1237. Norfolk. October 1, 2014. – August 19, 2015. Present: Berry, Hanlon, & Carhart, JJ. Charity. Corporation, Charitable corporation, Religious, Sale of assets, Officers and agents, Board of directors. Sale, Of corporate property, Real estate. Contract, Sale of real estate, Ratification. Real Property, Purchase and sale agreement. Agency, Ratification. Civil action commenced in the Superior Court Department on November 13, 2009. The case was heard by Kenneth J. Fishman, J., on a motion for summary judgment, and a separate and final judgment was ordered by him. David B. Summer (Elliot M. Sherman with him) for the plaintiff. Carole C. Cooke (Nicholas B. Carter with her) for Bostonview Corporation. BERRY, J. The plaintiff, First Bostonview Management, LLC (First Bostonview), appeals from the judgment entered pursuant to Mass.R.Civ.P. 54(b), 365 Mass. 821 (1974), after the allowance of the summary judgment motion by the defendant, Bostonview Corporation (Bostonview), a charitable corporation, on First Bostonview’s claims stemming from its attempt to purchase substantially all of Bostonview’s real property. We affirm the judgment. As is further discussed herein in more particularized detail, the corporate board of directors of a charity and the powers of corporate officers in a charitable organization, such as Bostonview, are subject to strict fiduciary standards in the conduct of the charity’s business affairs. The Supreme Judicial Court has made clear that only specific authorization can bind a charitable corporation to an “extraordinary transaction” entered into by its corporate officers, and that authority to enter into a contract which would divest the charitable corporation “of the very essence” of its existence lies beyond the power of the charitable corporate board to delegate to corporate officers. Boston Athletic Assn. v. International Marathons, Inc., 392 Mass. 356, 364-367 (1984). In this case, the sale of substantially all of the Bostonview church property (consisting of a church sanctuary, a parish meeting hall, a large apartment complex, offices, and parking spaces on prime land on Beacon Hill near the Massachusetts State House) was indisputably an “extraordinary transaction,” and, if completed to the end would have stripped Bostonview of the very essence of its existence as a charitable corporation, organized “exclusively for religious, charitable, scientific and education purposes” subject to the holding of the church property and the […]
Categories: News Tags: 1111815, Bostonview, Corporation, First, Lawyers, Management, Weekly
Resolute Management Inc., et al. v. Transatlantic Reinsurance Company, et al. (Lawyers Weekly No. 11-040-15)
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-573 Appeals Court RESOLUTE MANAGEMENT INC. & another[1] vs. TRANSATLANTIC REINSURANCE COMPANY & another.[2] No. 14-P-573. Suffolk. November 13, 2014. – April 29, 2015. Present: Green, Wolohojian, & Blake, JJ. Practice, Civil, Motion to dismiss. Consumer Protection Act, Businessman’s claim. Contract, Reinsurance agreement, Interference with contractual relations. Conflict of Laws. Civil action commenced in the Superior Court Department on April 30, 2013. A motion to dismiss was heard by Thomas P. Billings, J. Bryce L. Friedman, of New York (Kevin O’Connor with him) for the plaintiffs. John N. Thomas, of New York (Ben T. Clements with him) for the defendants. GREEN, J. The plaintiffs appeal from a judgment of dismissal entered in Superior Court following the allowance of the defendants’ motion to dismiss the plaintiffs’ complaint pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974).[3] The complaint asserted claims of tortious interference with contractual relations and violation of G. L. c. 93A. We conclude that the judge correctly dismissed the claims of Resolute Management Inc. (Resolute) for tortious interference with contractual relations as Resolute is not a party to the contracts at issue. However, we conclude that the allegations of the complaint do not establish as a matter of law that the plaintiffs cannot maintain a cause of action under G. L. c. 93A, or whether New York or Massachusetts law should apply to the claims of National Indemnity Company (National) for tortious interference with contractual relations. We accordingly reverse so much of the judgment as dismisses the plaintiffs’ c. 93A claims and National’s claims for tortious interference with contractual relations. Background. We summarize the facts alleged in the plaintiffs’ complaint which, for purposes of our review of the defendants’ motion to dismiss, we accept as true, construing all reasonable inferences from those facts in the plaintiffs’ favor. See Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008). National, a Nebraska corporation with a principal place of business in Nebraska, is an eligible surplus lines insurer and reinsurer in the Commonwealth whose business includes issuing reinsurance contracts and contracting to manage asbestos-related personal injury claims for Massachusetts-based insurers. National’s business, in part, is to enter contracts with other insurers’ clients, pursuant to which it (or Resolute, as National’s agent) resolves claims against those other insurers and collects reinsurance. In 2001, National entered into an […]
Categories: News Tags: 1104015, Company, Inc., Lawyers, Management, Reinsurance, Resolute, Transatlantic, Weekly
Mello Construction, Inc. v. Division of Capital Asset Management (Lawyers Weekly No. 11-147-13)
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‑1429 Appeals Court MELLO CONSTRUCTION, INC., vs. DIVISION OF CAPITAL ASSET MANAGEMENT. No. 12‑P‑1429. Bristol. June 4, 2013. ‑ December 18, 2013. Present: Cypher, Graham, & Agnes, JJ. Public Works, General contractor. License. Governmental Immunity. Damages. Practice, Civil, Action in nature of certiorari. Civil action commenced in the Superior Court Department on July 25, 2007. The case was heard by Thomas F. McGuire, Jr., J., on motions for judgment on the pleadings. John J. McNamara for the plaintiff. James A. Sweeney, Assistant Attorney General, for the defendant. GRAHAM, J. The dispositive question presented in this appeal is whether a general contractor may sue the division of capital asset management and maintenance (DCAM) for money damages for a discretionary decision to deny an annual application for certification to bid on public construction projects.[1] We conclude that it may not and affirm a Superior Court judgment dismissing the contractor’s complaint. Background. From 1985 until 2004, Mello Construction, Inc. (Mello), a general contractor specializing in large-scale public construction projects, received annual certificates of eligibility from DCAM.[2] In October, 2004, Mello submitted its annual application for certification. See G. L. c. 149, § 44D(2), as amended by St. 2004, c. 193, § 15. On August 19, 2005, DCAM issued a preliminary determination denying the application based in part on two negative contractor evaluations.[3] See G. L. c. 149, § 44D(4). As permitted by the statute, Mello timely requested reconsideration and submitted additional information and documentation to DCAM, including lengthy rebuttals of the allegedly biased evaluations. See ibid. On October 27, 2005, DCAM, refusing to disregard the negative evaluations, denied Mello’s application for four reasons: (1) failure to achieve a minimum average project rating required for certification; (2) receipt of two failing scores on the Berkley and Andover projects (see note 3, supra); (3) failure to disclose on its application the termination from the Norwood project; and (4) failure to disclose the invoking of a performance bond.[4] Following a hearing in January, 2006, the Attorney General issued a decision on April 6, 2007, affirming the denial of the application.[5] See ibid. In July, 2007, Mello commenced this Superior Court action against DCAM, seeking monetary damages.[6] On December 1, 2009, DCAM filed a motion to have the case proceed pursuant to a writ of certiorari under […]
Cannonball Fund, Ltd., et al. v. Dutchess Capital Management, LLC, et al. (Lawyers Weekly No. 11-094-13)
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‑876 Appeals Court CANNONBALL FUND, LTD., & others[1] vs. DUTCHESS CAPITAL MANAGEMENT, LLC, & others.[2] No. 12‑P‑876. Suffolk. January 17, 2013. ‑ August 2, 2013. Present: Cypher, Rubin, & Wolohojian, JJ. Limitations, Statute of. Practice, Civil, Statute of limitations, Dismissal, Standing. Jurisdiction, Personal, Long‑arm statute, Nonresident. Corporation, Derivative action. Fiduciary. Partnership, Fiduciary duty. Negligence, Causation. Due Process of Law, Jurisdiction over nonresident. Contract, Implied covenant of good faith and fair dealing, Performance and breach. Civil action commenced in the Superior Court Department on June 21, 2011. Motions to dismiss were heard by Judith Fabricant, J. John F. Hagan, Jr., of Illinois, for the plaintiffs. Sanford F. Remz for Sullivan Bille, P.C. Matthew Iverson for Dutchess Capital Management, LLC, & others. WOLOHOJIAN, J. This is the second suit brought individually and derivatively by investors in two “feeder” hedge funds against those who controlled or were involved in the operation of the feeder and master funds[3] and a related entity, against one feeder fund’s accounting firm, and against the administrator of both feeder funds. The plaintiffs previously filed a substantially similar case in the Delaware Court of Chancery. After four of the defendants moved to dismiss the Delaware claims for lack of personal jurisdiction, the plaintiffs voluntarily dismissed the Delaware suit in its entirety. Almost eight months later, the plaintiffs then filed this case in the Superior Court. The primary issue on appeal is whether the plaintiffs are entitled to the benefit of the Massachusetts savings statute, G. L. c. 260, § 32, which permits claims that were timely when originally filed to be refiled (despite the subsequent running of the limitations period) within one year after being dismissed “for any matter of form.” We conclude that voluntary dismissals are not per se excluded from the scope of the savings statute. We also conclude, however, that the record does not establish that all the claims dismissed in the Delaware action were dismissed for a matter of form. Those claims that were not dismissed for a matter of form were properly dismissed by the Superior Court judge as untimely. Those claims for which a sufficient question of fact was raised in the Superior Court, at least at the pleading stage, as to whether they were voluntarily dismissed in the Delaware action […]
Categories: News Tags: 1109413, Cannonball, Capital, Dutchess, Fund, Lawyers, Ltd., Management, Weekly
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 […]
Categories: News Tags: 1108713, Alpha, Corp., Hugenberger, Lawyers, Management, Weekly