Aquacultural Research Corporation, et al. v. Austin, et al. (Lawyers Weekly No. 11-176-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-1650 Appeals Court AQUACULTURAL RESEARCH CORPORATION & another[1] vs. ROSEMARIE AUSTIN & another.[2] Barnstable. October 1, 2015. – November 9, 2015. Present: Kafker, C.J., Katzmann, & Rubin, JJ. Moot Question. Practice, Civil, Moot case, Vacation of judgment. Civil action commenced in the Orleans Division of the District Court Department on November 12, 2010. The case was heard by Brian R. Merrick, J. Matthew L. McGinnis for Old Kings Highway regional historic district commission. Michele E. Randazzo for town of Dennis. Bruce P. Gilmore, for town of Yarmouth, amicus curiae, submitted a brief. KAFKER, C.J. The primary issue presented in this appeal is the proper application of mootness principles. In particular, we first must decide whether a legal challenge to a permitting process for a wind turbine is mooted by a conservation restriction precluding the construction of the wind turbine. If so, we then must decide the status of the unreviewed town committee, regional commission, and court decisions. We conclude that the case is moot and vacate all of the unreviewed decisions.[3] The procedural posture of the case is as follows. In 2010, Aquacultural Research Corporation (ARC) sought approval to construct a 242-foot-tall wind turbine on its property in the town of Dennis (town). Pursuant to the Old King’s Highway Regional Historic District Act (Act),[4],[5] ARC applied to the town’s Old King’s Highway regional historic district committee (town committee) for a certificate of appropriateness.[6] After the town committee issued the certificate, Rosemarie Austin, a town resident, appealed as an abutter[7] to the Old King’s Highway regional historic district commission (regional commission), pursuant to § 11 of the Act.[8] Austin claimed that the proposed wind turbine, which would be located approximately three-quarters of one mile from her property, would violate the Act and devalue her property. Following a hearing, the regional commission found that the town committee “exercised poor judgment in approving the 600-kilowatt wind turbine at the proposed location.”[9] Based on this finding, the regional commission annulled the town committee decision and denied ARC’s application for the certificate of appropriateness. ARC, and the town as intervener, then appealed to the Orleans Division of the District Court Department. Following a bench trial, a District Court judge revoked and reversed the decision of the regional commission and affirmed the decision of the town committee, finding […]
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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 […]