Posts tagged "P.C."

Lubin & Meyer, P.C. v. Manning (Lawyers Weekly No. 09-065-17)

COMMONWEALTH OF MASSACHUSETTS   SUFFOLK, so                                                                                            SUPERIOR COURT CIVIL ACTION 2017-02352-BLS2     LUBIN & MEYER, P.C., Plaintiff   vs.   JOHN J. MANNING, Defendant     MEMORANDUM OF DECISION AND ORDER  ON PLAINTIFF’S MOTION TO DISMISS FIVE (5) COUNTS OF DEFENDANT’S COUNTERCLAIM   This action arises from disputes between a law firm, plaintiff Lubin & Meyer, P.C., and a former associate, defendant John Manning.  Plaintiff alleges that Manning breached his fiduciary duties to the firm and also made false representations.  It alleges that as a result of these actions, Manning forfeited his rights under a referral fee agreement entered into at the time of his departure.  Manning has counterclaimed.  The case is now before the Court on the plaintiff’s Motion to dismiss certain counts of that counterclaim, specifically:  Count II (for defamation), Count III (for invasion of privacy), Count V (for intentional infliction of emotional distress), Count VI (for abuse of process) and Count VII (alleging a violation of 93A claim).  This Court concludes that the Motion must be Allowed as to all counts except for Count VI, which will remain in the case. BACKGROUND Manning was employed as an associate at Lubin & Meyer from 2012 through February 23, 2016, when he was terminated.  At the time of his departure, the firm provided Manning with a letter confirming that he was entitled to payment on two cases that he claims to have generated while at the firm (the Referral Fee Agreement).  According to the Complaint, the firm later discovered that Manning had engaged in certain conduct which breached his fiduciary duties to the firm:  in particular, he failed to inform certain clients that the firm had rejected their claims and misled them as to the status of their cases.  Lubin & Meyer also alleges that Manning represented to it  that he had caused one of the clients covered by the  Referral Fee Agreement to retain Lubin & Meyer when in fact that was not the reason for the client’s decision.  Lubin & Meyer subsequently lodged a complaint about Manning with the Board of Bar Overseers (BBO) and then filed this lawsuit against Manning – a fact reported by the Boston Business Journal.    In his counterclaim, Manning alleges that Lubin & Meyer made false and defamatory statements about him.  These statements are contained in the Complaint that Lubin & Meyer filed and that were later repeated in the Boston Business Journal article, which was based on information “garnered directly” from the Complaint.  ¶¶ 7 and 23-24 of Counterclaim.  These same allegations form the basis for Manning’s claims that Lubin & Meyer invaded his privacy and intentionally inflicted emotional distress.  As to the abuse of press count, Manning […]

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Posted by Massachusetts Legal Resources - January 8, 2018 at 7:10 pm

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C.E.R. v. P.C., et al. (Lawyers Weekly No. 11-021-17)

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-525                                        Appeals Court   C.E.R.  vs.  P.C. & another.[1]     No. 16-P-525.   Essex.     December 1, 2016. – March 6, 2017.   Present:  Milkey, Massing, & Sacks, JJ.     Civil Harassment.  Harassment Prevention.  Protective Order. Words, “Intimidation.”       Complaint for protection from harassment filed in the Ipswich Division of the District Court Department on December 28, 2015.   A hearing to extend harassment prevention orders was had before Peter F. Doyle, J.     Ryan D. Sullivan for the defendants.     SACKS, J.  The defendants, who were roommates, appeal from the District Court’s extension of harassment prevention orders obtained by their then-landlord pursuant to G. L. c. 258E.[2]  We conclude that the evidence was insufficient to support a finding that either defendant had engaged in three or more acts of harassment, and we therefore vacate the extension orders.[3]  We also take the opportunity to emphasize that when a landlord seeks a c. 258E order against tenants, a judge should examine the allegations of harassment carefully, to ensure that c. 258E is not being used as a substitute for eviction through a summary process action under G. L. c. 239. Background.[4]  The plaintiff owned a single-family home which included an “in-law” apartment over the attached garage.  Following her divorce, the plaintiff was ordered by the Probate and Family Court to place her home on the market, which she did in April, 2015.  In mid-2015, the plaintiff rented the apartment to the defendants, while she continued to live in the rest of the home.  The defendants agreed to allow the plaintiff access to the apartment in order to show the home to potential buyers.  One of the defendants, R.C., owned a dog, which also occupied the apartment.  The defendants paid rent and contributed to utility costs, and the living arrangement continued more or less uneventfully until the fall of 2015. Following the events discussed infra, the plaintiff obtained ex parte harassment prevention orders against both defendants on December 28, 2015, requiring them to stay away from the premises and from her.[5]  After an evidentiary hearing on January 7, 2016, the judge extended both orders for one year, requiring the defendants to vacate the premises immediately and stay away from them thereafter. Standard for issuance of harassment prevention orders.  As relevant here, G. L. c. 258E, § 1, inserted by St. 2010, […]

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Posted by Massachusetts Legal Resources - March 7, 2017 at 2:39 am

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Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., et al. (Lawyers Weekly No. 10-074-16)

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-11901   KAMEE VERDRAGER  vs.  Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., & others.[1]       Suffolk.     November 5, 2015. – May 31, 2016.   Present:  Botsford, Duffly, Lenk, & Hines, JJ.     Anti-Discrimination Law, Employment, Sex, Termination of employment.  Employment, Discrimination, Sexual harassment, Demotion, Retaliation, Termination.  Unlawful Interference.  Practice, Civil, Summary judgment, Discovery.       Civil action commenced in the Superior Court Department on November 3, 2009.   The case was heard by Peter M. Lauriat, J., on motions for summary judgment.   The Supreme Judicial Court granted an application for direct appellate review.     Kamee Verdrager, pro se. Joan A. Lukey (Justin J. Wolosz with her) for the defendants. Ellen J. Messing, for Massachusetts Employment Lawyers Association, amicus curiae, submitted a brief. Ben Robbins & Martin J. Newhouse, for New England Legal Foundation & another, amici curiae, submitted a brief.     LENK, J.  General Laws c. 151B, § 4, prohibits employers from discriminating against employees on the basis of gender.  It also prohibits them from retaliating against employees for engaging in “protected activity,” i.e., activity undertaken “to protest or oppose statutorily prohibited discrimination” (citation omitted).  See Thirkield v. Neary & Hunter OB/GYN, LLC, 76 F. Supp. 3d 339, 350 (D. Mass. 2015) (interpreting G. L. c. 151B).  Here, we are asked to determine whether summary judgment should have entered for the employer on an employee’s claims for gender discrimination and retaliation.  In addressing the retaliation claim, we confront the novel question whether it is “protected activity” for an employee to search for, copy, and share with the employee’s attorney confidential documents that the employee is authorized to access in the course of employment and that may help prove a discrimination claim. The plaintiff is an attorney who worked for a Boston law firm, defendant Mintz, Levin, Ferris, Cohn, Glovsky and Popeo, P.C. (firm).  During the course of her employment with that firm, from June, 2004, to November, 2008, she complained to her superiors and, ultimately, to the Massachusetts Commission Against Discrimination (MCAD), that she was being subjected to discriminatory treatment on the basis of her gender – treatment that, she believed, led to her demotion in February, 2007.  In the wake of this demotion, and on the advice of her attorney, the plaintiff searched the firm’s document management system for items that might prove her assertions of discrimination.  […]

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Posted by Massachusetts Legal Resources - May 31, 2016 at 5:52 pm

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Katz, Nannis & Solomon, P.C., et al. v. Levine, et al. (Lawyers Weekly No. 10-033-16)

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-11902   KATZ, NANNIS & SOLOMON, P.C., & others[1]  vs.  BRUCE C. LEVINE & another.[2]       Norfolk.     December 10, 2015. – March 9, 2016.   Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Massachusetts Arbitration Act.  Arbitration, Judicial review, Scope of arbitration, Confirmation of award, Authority of arbitrator, Damages, Attorney’s fees.  Contract, Arbitration.  Practice, Civil, Attorney’s fees, Costs.  Damages, Attorney’s fees.       Civil action commenced in the Superior Court Department on February 27, 2013.   A motion to confirm an arbitration award was heard by Patrick F. Brady, J.; a motion for attorney’s fees and costs was heard by him; and entry of separate and final judgments was ordered by him.   The Supreme Judicial Court granted an application for direct appellate review.     Thomas J. Carey, Jr. (Daniel J. Cloherty & Victoria L. Steinberg with him) for Bruce C. Levine. Warren D. Hutchison (Nancy M. Reimer with him) for the plaintiffs. Joseph S.U. Bodoff, for Levine, Caufield, Martin & Goldberg, P.C., was present but did not argue.     BOTSFORD, J.  The central question presented in this appeal is whether parties to a commercial arbitration agreement may alter by contract the scope or grounds of judicial review of an arbitration award that are set out in the Massachusetts Uniform Arbitration Act for Commercial Disputes (MAA), G. L. c. 251.  We decide that the grounds of judicial review are limited to those delineated in G. L. c. 251, §§ 12 and 13. Background.  The defendant Bruce C. Levine and the plaintiffs Allen G. Katz, Lawrence S. Nannis, and Jeffery D. Solomon were members of an accounting firm known as Levine, Katz, Nannis & Solomon, P.C. (LKNS or firm).  They were each a shareholder in the firm, and a party to a stockholder agreement dated October 1, 1998 (agreement), that governed their professional association and relationship.[3]  In 2011, Katz, Nannis, and Solomon, purporting to act pursuant to the agreement, voted to require the withdrawal of Levine as a director and stockholder in LKNS; Levine disagreed that the termination of his stockholder interest and position was in accordance with the agreement’s terms, and the arbitration at issue in this case concerned that dispute.  We summarize the relevant provisions of the agreement, the parties’ dispute leading to arbitration, and the arbitration award, followed by a summary of the proceedings in the […]

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Posted by Massachusetts Legal Resources - March 9, 2016 at 5:02 pm

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Byron V. Hartunian, M.D., P.C. v. Pilgrim Insurance Company (Lawyers Weekly No. 11-152-14)

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   14-P-8                                          Appeals Court   BYRON V. HARTUNIAN, M.D., P.C.  vs.  PILGRIM INSURANCE COMPANY. No. 14-P-8. Middlesex.     September 9, 2014. – November 24, 2014.   Present:  Kantrowitz, Grainger, & Hanlon, JJ.     Insurance, Motor vehicle personal injury protection benefits, Settlement of claim, Unfair act or practice.  Consumer Protection Act, Insurance, Unfair or deceptive act.  Motor Vehicle, Insurance.     Civil action commenced in the Cambridge Division of the District Court Department on November 7, 2008.   The case was heard by Severlin B. Singleton, III, J.     Joseph R. Ciollo for the defendant. Francis A. Gaimari for the plaintiff.     GRAINGER J.  A $ 990 dispute, reduced shortly before a bench trial in the District Court to a claim for $ 188.10, has resulted in an award totaling $ 25,343.53 against Pilgrim Insurance Company (Pilgrim).[1]  Pilgrim now appeals from the decision and order of the Appellate Division of the District Court affirming the District Court judgment in favor of Byron Hartunian, M.D., P.C. (Hartunian), on his claim that Pilgrim unfairly delayed payment for orthopedic treatment rendered by Hartunian to the claimant under Pilgrim’s policy.  We affirm. This case arises out of an April 4, 2007, automobile accident in which a passenger was injured, resulting in her need for medical treatment.  The automobile in which she was a passenger was covered by a standard Massachusetts automobile insurance policy (auto policy) issued by Pilgrim.  A personal injury protection (PIP) benefits application was received by Pilgrim approximately ninety days after the accident.  Some ninety additional days thereafter Pilgrim received treatment records and bills from Hartunian for five different dates of treatment.[2]  Pilgrim initially paid $ 515 to Hartunian, constituting payment for the first two treatment dates of May 15 and June 20, 2007.  Thereafter, Pilgrim paid Hartunian an additional $ 495 for the remaining three treatment dates of July 19, August 14, and October 2, 2007.  Although these two payments were intentionally $ 990 less than the total of Hartunian’s billings, Pilgrim did not notify Hartunian or his patient of its intention not to pay the $ 990 within ten days of the submission of the bills.  Pilgrim based its nonpayment on its determination that the charges exceeded an amount that was reasonable in comparison to other medical providers in the same geographic area. After approximately twelvemonths of demanding payment to […]

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Posted by Massachusetts Legal Resources - November 24, 2014 at 6:51 pm

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Barron Chiropractic & Rehabilitation, P.C. v. Norfolk & Dedham Group (Lawyers Weekly No. 10-171-14)

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-11561   BARRON CHIROPRACTIC & REHABILITATION, P.C.  vs.  NORFOLK & DEDHAM GROUP. Norfolk.     May 5, 2014. – October 15, 2014.   Present:  Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.[1]     Insurance, Motor vehicle personal injury protection benefits, Unfair act or practice.  Contract, Insurance.  Practice, Civil, Summary judgment, Attorney’s fees.  Consumer Protection Act, Insurance.       Civil action commenced in the Dedham Division of the District Court Department on November 25, 2009.   The case was heard by James J. McGovern, J., on a motion for summary judgment.   The Supreme Judicial Court granted an application for direct appellate review.     Francis A. Gaimari (Robert N. Fireman & Stephen B. Byers with him) for the plaintiff. Joseph R. Ciollo (Michael L. Snyder with him) for the defendant. E. Michael Sloman, for Automobile Insurers Bureau, amicus curiae, submitted a brief. Christopher M. Moutain, for American Insurance Association & others, amici curiae, submitted a brief.     LENK, J.  The personal injury protection (PIP) provision of the automobile insurance statute permits an unpaid party to bring an action for breach of contract against an automobile insurer if the latter has not paid PIP benefits for more than thirty days after those benefits became due and payable.  G. L. c. 90, § 34M, fourth par.  If the unpaid party receives a judgment for any amount due and payable by the insurer, it also may recover its costs and reasonable attorney’s fees.  The primary question before us is whether an unpaid party who has brought suit and thereafter refused the insurer’s tender of amounts due and payable, made prior to the entry of judgment, may proceed with the suit and, if successful, obtain a judgment for those amounts as well as its costs and attorney’s fees.  We conclude that it may proceed with the action under G. L. c. 90, § 34M. 1.  Background.  The plaintiff, Barron Chiropractic & Rehabilitation, P.C. (Barron), provided chiropractic services to Nicole Jean-Pierre following her automobile accident on August 20, 2008.  Jean-Pierre was injured while driving a vehicle insured by the defendant Norfolk & Dedham Group (Norfolk) pursuant to G. L. c. 90, § 34A, which requires compulsory motor vehicle liability insurance, including PIP benefits.[2]  See G. L. c. 90, §§ 34A, 34M. Norfolk received notice of the accident on August 22, 2008, and, on October 10, 2008, received Jean-Pierre’s application for PIP benefits.[3] Shortly thereafter, pursuant to its contractual right […]

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Posted by Massachusetts Legal Resources - October 15, 2014 at 8:00 pm

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Zullo v. Culik Law P.C., et al. (Lawyers Weekly No. 10-050-14)

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‑11576   JOHN F. ZULLO  vs.  CULIK LAW P.C. & another.[1]     March 17, 2014.     Supreme Judicial Court, Superintendence of inferior courts.  Practice, Civil, Small claims procedure.       John Zullo appeals from a judgment of a single justice of this court denying his petition for relief under G. L. c. 211, § 3.  Zullo commenced an action in the small claims session of the District Court against his former attorney and law firm.  Judgment entered for the defendants.  Zullo’s petition sought relief from that judgment.  We have repeatedly stated that a plaintiff who chooses to proceed in the small claims session waives the right to appeal from any adverse judgment, and likewise is not entitled to invoke this court’s extraordinary power of general superintendence in lieu of an appeal to compel review of the judgment.  See Tessema v. Nextel Sys. Corp., 451 Mass. 1007, 1007-1008 (2008); Stevenson v. Mackey, 450 Mass. 1014, 1015 (2007); Pandey v. Ware Div. of the Dist. Court Dep’t, 412 Mass. 1002, 1003 (1992) (“by choosing to pursue their claim as plaintiffs in the small claims session, the plaintiffs waived their right to appeal from any adverse rulings . . . [and] where the plaintiffs chose to pursue the small claims procedure which is ‘not exclusive but an alternative to the formal procedure of the District Court,’ . . . the single justice was warranted in refusing to grant relief under G. L. c. 211, § 3″).  As in each of those cases, the single justice here was warranted in declining to grant extraordinary relief.   Judgment affirmed.     John F. Zullo, pro se. Josef C. Culik for the defendants.      [1] Josef C. Culik. Full-text Opinions

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Posted by Massachusetts Legal Resources - March 17, 2014 at 11:59 pm

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Ari Weitzner, M.D., P.C. v. Cynosure, Inc.

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‑264                                        Appeals Court   ARI WEITZNER, M.D., P.C.  vs.  CYNOSURE, INC. No. 13‑P‑264. Middlesex.     October 4, 2013.  ‑  March 13, 2014. Present:  Graham, Sikora, & Hanlon, JJ.   Practice, Civil, Class action, Judicial discretion.  Rules of Civil Procedure.  Due Process of Law, Class action, Jurisdiction over nonresident.  Superior Court, Jurisdiction.       Civil action commenced in the Superior Court Department on May 24, 2005.   A motion for class certification was heard by Joseph M. Walker, III, J., and entry of final judgment was ordered by him.     Todd C. Bank (Christopher J. Marino with him) for the plaintiff. Richard M. Zielinski for the defendant.       SIKORA, J.  The plaintiff, Ari Weitzner, M.D., P.C. (Weitzner), brought a class action complaint in Superior Court for injunctive relief and damages against the defendant, Cynosure, Inc. (Cynosure).  A judge denied class certification and subsequently entered judgment on the merits of Weitzner’s individual claims.  Weitzner has appealed.  He contends (1) that the judge wrongly denied certification of the proposed class of plaintiffs, and (2) that the judge should not have adjudicated the merits of his individual claims because the Superior Court lacked jurisdiction over allegations of damages below the level of $ 25,000.  For the following reasons, we affirm. Background.  The following facts emerge from the record as undisputed.  Weitzner conducts an ophthalmology practice in Brooklyn, New York; Cynosure is a manufacturer of laser and light-based technology with a principal place of business in Massachusetts.  Between April 7, 2004, and May 20, 2004, Cynosure sent Weitzner four unsolicited facsimile advertisements. On May 24, 2005, Weitzner filed the class action complaint in Superior Court alleging that Cynosure had violated the Telephone Consumer Protection Act of 1991 (TCPA), 47 U.S.C. § 227.  The TCPA prohibits, inter alia, the transmission of unsolicited advertisements via facsimile.  47 U.S.C. § 227(b)(1)(C).  Weitzner requested $ 1,500 in statutory damages for each violation of the TCPA and an order enjoining Cynosure from “continuing to send unsolicited facsimile advertisements.”  See 47 U.S.C. § 227(b)(3).  Three months later, in August of 2005, Cynosure voluntarily suspended its facsimile transmission program.  In February of 2006, a judge denied Cynosure’s motion to dismiss the complaint.  Weitzner subsequently ignored Cynosure’s offer to confess judgment on his individual claims. In April of 2008, Weitzner moved for certification of a nationwide class composed of:   “[a]ll individuals […]

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Posted by Massachusetts Legal Resources - March 15, 2014 at 9:54 pm

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Harmon Law Offices, P.C. v. Attorney General (Lawyers Weekly No. 11-085-13)

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‑407                                        Appeals Court   HARMON LAW OFFICES, P.C.  vs.  ATTORNEY GENERAL.     No. 12‑P‑407. Suffolk.     October 11, 2012.  ‑  June 28, 2013. Present:  Graham, Vuono, & Hanlon, JJ.       Attorney General.  Consumer Protection Act, Demand letter.  Mortgage, Foreclosure.  Attorney at Law, Attorney‑client relationship.  Privileged Communication.  Practice, Civil, Interlocutory appeal.       Civil action commenced in the Superior Court Department on October 15, 2010.   The case was heard by Bonnie H. MacLeod‑Mancuso, J.     Evan T. Lawson (Michele A. Hunton with him) for the plaintiff. Jonathan B. Engel, Assistant Attorney General, for the defendant.       VUONO, J.  Acting pursuant to her authority under the Massachusetts consumer protection act, G. L. c. 93A (c. 93A or the statute), the Attorney General issued two civil investigative demands (CIDs or demands) to Harmon Law Offices, P.C. (Harmon), seeking information regarding its foreclosure and eviction practices.[1]  Harmon challenged the demands and filed a complaint seeking relief under § 6(7) of the statute.[2]  After a hearing, a judge of the Superior Court concluded that Harmon had not met its burden of showing good cause to set aside the CIDs and dismissed the complaint.  Harmon appeals, claiming that the judge abused her discretion because the demands interfere with Harmon’s attorney-client relationships, and the requested documents are protected by the litigation privilege.  Harmon also contends that, by representing its clients in foreclosure and eviction proceedings, it is not engaged in trade or commerce and therefore cannot be subject to liability under c. 93A.  Thus, Harmon maintains, the Attorney General exceeded her authority by requesting information directly from Harmon regarding possible violations of c. 93A.  For substantially the reasons articulated by the Superior Court judge in her thorough memorandum of decision and order dismissing Harmon’s complaint, we conclude that Harmon has not met its burden of showing good cause why it should not be required to produce the requested documents.  Accordingly, we affirm. 1.  Appellate review of the judge’s order.  We begin by addressing a procedural issue which neither party has brought to our attention.  An order denying a motion brought pursuant to c. 93A, § 6(7), to set aside or modify a CID is to be distinguished from an order of compliance issued by a court under § 7 of the statute.  The former is interlocutory and not appealable as a final order, see […]

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Posted by Massachusetts Legal Resources - June 28, 2013 at 10:15 pm

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Massachusetts Housing Opportunities Corporation v. Whitman & Bingham Associates, P.C., et al. (Lawyers Weekly No. 11-031-13)

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‑53                                         Appeals Court   MASSACHUSETTS HOUSING OPPORTUNITIES CORPORATION  vs.  WHITMAN & BINGHAM ASSOCIATES, P.C., & another.[1]     No. 12‑P‑53. Essex.     October 3, 2012.  ‑  February 21, 2013. Present:  Graham, Vuono, & Hanlon, JJ.     Sewage Disposal.  Limitations, Statute of.  Negligence, Installation of septic system, Misrepresentation.  Fraud.  Contract, Performance and breach.  Consumer Protection Act, Unfair or deceptive act.       Civil action commenced in the Superior Court Department on May 23, 2008.   The case was heard by Maynard M. Kirpalani, J., on motions for summary judgment.     Daniel J. Murphy for the plaintiff. Eric A. Howard (Patricia B. Gary with him) for Whitman & Bingham Associates, P.C.     GRAHAM, J.  After a wastewater treatment plant for one of its development projects vastly exceeded projected costs, the plaintiff, Massachusetts Housing Opportunities Corporation (MHOC), filed a complaint alleging tort claims (counts I – III), breach of contract (count IV), and violation of G. L. c. 93A (count V) against the defendants, engineering firms Whitman & Bingham Associates, P.C. (Whitman), and Aquapoint, Inc. (Aquapoint).[2]  A judge of the Superior Court granted the defendants’ motion for summary judgment, and MHOC appeals.  It argues that the judge erred in concluding that its tort and contract claims are barred by the applicable statute of limitations, and that its c. 93A claim is without support in the record.  We affirm.   Background.  The undisputed facts, viewed in the light most favorable to the nonmoving party, MHOC, are as follows.  In 2003, MHOC, a property development corporation, was in the process of developing a condominium project in Sterling (development).  On October 2, 2003, it entered into an agreement with Whitman to design “a subsurface sewage disposal system” (septic system) for the development.  Whitman, in turn, hired Aquapoint to provide information about sewage treatment equipment and permitting advice.  Whitman began work on the design, and, in November, 2004, told MHOC that the septic system could be permitted relatively inexpensively under the Department of Environmental Protection’s (DEP) Title 5 alternative system for piloting program (piloting program).[3]  Thereafter, on December 15, 2004, Whitman submitted an application under the piloting program on behalf of MHOC.  MHOC signed the application and paid the $ 430 filing fee by check.  Also in December, 2004, MHOC received a $ 300,000 bid from a third party, M.P. Crowley, to construct the septic system […]

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Posted by Massachusetts Legal Resources - February 21, 2013 at 10:04 pm

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