text:
    Virginia Rice ROSCIOLI & another v. William SANDERSON & others.
    17-P-499
    Appeals Court of Massachusetts.
    Entered: May 15, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Barbara Rice, as personal representative of the estate of Frances S. Rice.

      John Welch, Ellen Welch, and over 180 other individuals who may claim or assert a right of way over the property at issue or may otherwise be affected by an adjudication of the rights of the parties as to that way.

   The defendants, John and Ellen Welch, appeal from the denial of their special motion to dismiss filed pursuant to the "anti-SLAPP" statute, G. L. c. 231, § 59H. We affirm.

Background. Before the commencement of the action, the plaintiffs, Virginia Rice Roscioli and Barbara Rice, complained to the town of Sturbridge that various people had trespassed on what they contend is their exclusive right of way. The town requested that the public submit statements or affidavits regarding their use of the way. Many of the neighbors claimed that they used the way for an extended period of time dating back to, in one instance, 1940. The Welches claimed to have used the way since 1983. The town received over 180 affidavits from people detailing their use of the way in question. As a result of the affidavits, the town determined that it would no longer enforce the trespassing laws regarding the way.

The plaintiffs then filed a Land Court action naming as defendants all the individuals who filed affidavits with the town. In that action the plaintiffs sought a declaration of the rights of the parties under G. L. c. 231A; to quiet title under G. L. c. 240, § 6 ; to compel the defendants to try title under G. L. c. 240, § 1 et seq. ; and to abate a trespass to realty involving title under G. L. c. 185, § 1(o ). The Welches responded by filing counterclaims and cross claims pursuant to G. L. c. 231A, § 1 et seq. ; G. L. c. 240, § 6 ; and G. L. c. 240, § 1 et seq. The Welches' pleading stated that, "An actual controversy exists between and among the parties concerning whether the right-of-way is a public way, a private way with public access, and/or whether a class of people, including Welch, has express easement rights and/or has acquired an easement by prescription for use of said right-of-way."

Thereafter, the Welches filed a special motion to dismiss, arguing that the claims against them were based solely on their petitioning activity-that is, filing affidavits with the town. A Land Court judge denied the special motion to dismiss, concluding that:

"While the defendants' submissions to the Town allowed the plaintiffs to identify the persons who claim rights in their properties, the case is not about those submissions but, instead, about the existence and scope of the rights so claimed. As such, it is a proper 'cloud on title' case, properly brought before this court, G. L. c. 240, § 6, and is not precluded by the Anti-SLAPP statute. See Office One, Inc. v. Lopez, 437 Mass. 113, 122 (2002) ('To invoke the statute's protection, the special movant need show, as a threshold matter, through pleadings and affidavits, that the claims against it are, in fact, "based on" its petitioning activities alone and have no substantial basis other than or in addition to its petitioning activities')."

Discussion. "The Legislature enacted the anti-SLAPP statute to counteract 'SLAPP' suits, defined broadly as 'lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.' " Blanchard v. Steward Carney Hosp., Inc., 477 Mass. 141, 147 (2017), quoting from Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 161 (1998). A party may file a special motion to dismiss under the anti-SLAPP statute if "the civil claims, counterclaims, or cross claims against said party are based on said party's exercise of its right of petition under the constitution of the United States or of the commonwealth." G. L. c. 231, § 59H, inserted by St. 1994, c. 283, § 1. See 477 Harrison Ave., LLC v. JACE Boston, LLC, 477 Mass. 162, 167 (2017), quoting from Duracraft, supra.

To meet their initial burden the Welches must first show that the plaintiffs' claims "are solely based on [the Welches'] own petitioning activities." Blanchard, supra at 159. Even when the movant establishes that the plaintiffs' claims are based on the movant's petitioning activities, the plaintiffs may defeat the motion by "demonstrating that each such claim was not primarily brought to chill the special movant's legitimate petitioning activities." Id. at 160. This is to be considered by "assess[ing] the totality of the circumstances pertinent to the nonmoving party's asserted primary purpose in bringing its claim" by examining, inter alia, "[t]he course and manner of proceedings, the pleadings filed, and affidavits 'stating the facts upon which the liability or defense is based.' " Ibid., quoting from G. L. c. 231, § 59H.

The Welches contend that the suit is based exclusively on petitioning activity because the only people who were sued were individuals that filed affidavits with the town. However, the underlying case, on its face, involves the adjudication of rights to a way; the dispute began not with petitioning activity by the defendants, but when the plaintiffs complained about trespassers. The Welches identify no person claiming rights in the way that was not sued, nor do they suggest any other manner in which the plaintiffs could discern who claims a right to the way. It is evident from the pleadings and the facts alleged by the Welches that the plaintiffs have little interest in the Welches' communications with the town but rather wish to settle the question of their title in the way. Accordingly, whether we view this as a failure to demonstrate that the suit was brought "solely" based on the Welch's petitioning activities, or a failure to show that the claims were not primarily brought to chill the Welches' legitimate petitioning activities, the judge correctly denied relief pursuant to G. L. c. 231, § 59H.

The plaintiffs request attorney's fees and costs. At the time this case was brought, the Blanchard case had not been decided. In the exercise of our discretion, we conclude that the Welches' appeal was not "wholly insubstantial, frivolous and not advanced in good faith." G. L. c. 231, § 6F, inserted by St. 1976, c. 233, § 1. See generally Masterpiece Kitchen & Bath, Inc. v. Gordon, 425 Mass. 325, 329-330 (1997). We therefore deny the plaintiffs' request for § 6F sanctions.

Order denying special motion to dismiss affirmed.

      "An interlocutory appeal from the denial of an anti-SLAPP special motion is available under the doctrine of present execution." Reichenbach v. Haydock, 92 Mass. App. Ct. 567, 568 n.4 (2017).

      The motion was decided before Blanchard, supra, but the rationale of the judge's order is sufficiently clear to permit appellate review under the Blanchard standard. We may affirm on any ground supported by the record. See Brangan v. Commonwealth, 477 Mass. 691, 698 n.12 (2017).

      The standard in Blanchard is applicable on direct appeal to motions decided before it was decided. Reichenbach v. Haydock, 92 Mass. App. Ct. 567, 568 & n.5 (2017).

      The plaintiffs used the affidavits to identify the individuals who claim rights in the way.

      Because we decide this case on this basis, we need not consider the Welches' other arguments regarding the judge's analysis of the first stage of Blanchard. See Reichenbach v. Haydock, 92 Mass. App. Ct. at 576.


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. YUSEF Y., a juvenile.
    17-P-769
    Appeals Court of Massachusetts.
    Entered: May 15, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   A Juvenile Court judge dismissed the delinquency complaint charging the juvenile with negligent operation of a motor vehicle, G. L. c. 90, § 24(2)(a ), for failure to comply with the citation requirements of G. L. c. 90C, § 2. Concluding that the Commonwealth failed to show a circumstance justifying the failure to issue a timely citation, we affirm.

Under G. L. c. 90C, § 2, as appearing in St. 1985, c. 794, § 3, "[a] failure to give a copy of the citation to the violator at the time and place of the violation shall constitute a defense in any court proceeding for such violation, except [1] where the violator could not have been stopped or [2] where additional time was reasonably necessary to determine the nature of the violation or the identity of the violator, or [3] where the court finds that a circumstance, not inconsistent with the purpose of this section to create a uniform, simplified and non-criminal method for disposing of automobile violations, justifies the failure." Here, there is no question that the first and second exceptions do not apply; the juvenile was present at the scene of the accident and received a citation for a marked lane violation and underage use of an electronic device.

When we apply the third exception, we consider "the two fundamental purposes of the statute: (1) prevention of 'manipulation and misuse' of citations; and (2) 'prompt and definite notice' to the alleged violator of the nature of the offense." Commonwealth v. Burnham, 90 Mass. App. Ct. 483, 485 (2016), quoting from Commonwealth v. Pappas, 384 Mass. 428, 431 (1981). Here, both fundamental purposes weigh in favor of dismissal.

Unlike in many cases in which we have applied the third exception, there was no oral notice to the juvenile that criminal charges were forthcoming. See, e.g., Commonwealth v. Moulton, 56 Mass. App. Ct. 682, 683 (2002) ; Commonwealth v. O'Leary, 92 Mass. App. Ct. 282, 283, further appellate review granted, 478 Mass. 1105 (2017). We have previously held that the issuance of a citation for an infraction or a minor criminal charge does not by itself provide implicit notice of more serious charges. Burnham, 90 Mass. App. Ct. at 488. Indeed, here the citation issued at the time of the accident would have led the juvenile to believe that this would be the extent of the charges.

Similarly unavailing is the Commonwealth's contention that the injuries to the other driver sufficed to provide constructive notice to the juvenile that criminal charges were forthcoming. To be sure, "[t]he risk that a putative defendant will remain unaware of a transient traffic offense and will be unprepared to defend against it unless the incident is 'called immediately to [his] attention' has little relevance when applied to more serious crimes." Pappas, 384 Mass. at 431, quoting from Commonwealth v. Giannino, 371 Mass. 700, 703 (1977). Such crimes are usually more serious than here, see Pappas, supra at 428 (vehicular homicide); Commonwealth v. Babb, 389 Mass. 275, 276 (1983) (vehicular homicide); Moulton, 56 Mass. App. Ct. at 683 (operating under the influence); O'Leary, 92 Mass. App. Ct. at 283 (operating under the influence, subsequent offense). Nonetheless, "there is no bright-line rule," Burnham, 90 Mass. App. Ct. at 485, and constructive notice may apply to a charge of negligent operation. See Commonwealth v. Cameron, 416 Mass. 314, 315-316 (1993) (collision with bicyclist). See also Pappas, supra at 431-432 ("It is inconceivable that the defendant would be unaware of the seriousness of a situation in which his vehicle had crossed the center line of a public street and struck a pedestrian); Commonwealth v. Kenney, 55 Mass. App. Ct. 514, 515 (2002) (collision with pedestrian that "thrust the victim forty-three feet forward").

Here, however, despite the unquestionable severity of the other driver's injuries, both the investigating officer and the prosecutor's office concluded within four days of the accident that the case did not warrant the issuance of criminal charges. The claim, therefore, that the juvenile should have realized that criminal charges were forthcoming when experienced law enforcement professionals did not so realize rings hollow.

Furthermore, the Commonwealth provided no evidence to the motion judge regarding the reason for the eventual issuance of the citation. See Babb, 389 Mass. at 277 (officer waited until victim died to cite defendant for vehicular manslaughter); Cameron, 416 Mass. at 315 n.1 (officer was under mistaken impression that he had to wait to see if victim died); Moulton, 56 Mass. App. Ct. at 683 (officer wanted to "check a few things out" before issuing citation); Burnham, 90 Mass. App. Ct. at 484 (subsequent arrest of defendant for operating under influence caused prosecutor to reopen investigation); O'Leary, 92 Mass. App. Ct. at 284 (officer waited to obtain approval from supervisor). Although such evidence is not required, see Burnham, supra at 485, its absence here provides no confidence that the goal of the prevention of manipulation and misuse of citations has been achieved. Without any idea why the police and the prosecutor's office, content with the absence of criminal charges, reversed themselves seventy-nine days later, the motion judge had no obligation to find that "a circumstance, not inconsistent with the purpose of this section to create a uniform, simplified and non-criminal method for disposing of automobile violations," G. L. c. 90C, § 2, justified the delayed citation.

Order dismissing delinquency complaint affirmed.

      Pappas and Babb predated the Legislature's decision to remove the citation defense from violations resulting in death. See St. 1986, c. 620, § 18.


text:
    COMMONWEALTH v. Keion JACKSON.
    17-P-956
    Appeals Court of Massachusetts.
    Entered: May 15, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Keion Jackson, was convicted by a jury of assault and battery on a family or household member in violation of G. L. c. 265, § 13M(a ). On appeal, he argues that the conviction should be vacated because (i) the trial judge erred in permitting the victim to testify to a prior uncharged incident of domestic violence, (ii) the trial judge erroneously admitted the victim's medical records, and (iii) the prosecutor made improper statements during closing argument. We affirm.

Background. At trial, the victim testified as follows. She had been dating the defendant for approximately eight months, and lived with him in a second floor apartment of a house in New Bedford. One morning in August, 2016, the victim awoke to find the defendant standing over her, holding her cellular telephone (cell phone), and shouting about another communication between the victim and a man. The victim grabbed her cell phone and fled the apartment with the defendant in pursuit.

The defendant caught her on the stairway, wrapped his arm around her neck and lifted her off the step. The victim could not breathe and struggled to free herself. As she felt herself losing consciousness, she stopped struggling, and the defendant released her. The victim then ran from the building. She was brought to a hospital for treatment for her injuries.

Discussion. 1. Admission of prior incident of domestic violence. On appeal, the defendant first maintains that the trial judge erred in permitting the victim to testify, over objection, that in June, 2016-approximately two months prior to the incident giving rise to the present conviction-the defendant forcibly prevented her from exiting her vehicle over the course of approximately four hours during which he struck her repeatedly, pulled her hair, choked her with a flashlight, and sprayed her face with pepper spray. At one point, the defendant told the victim that he was going to kill her and throw her body in a nearby dumpster. Photographs of the victim's injuries from the prior incident were also introduced.

While evidence of a defendant's prior bad acts is "inadmissible for the purpose of demonstrating the defendant's bad character or propensity to commit the crimes charged," Commonwealth v. Crayton, 470 Mass. 228, 249 (2014), such evidence may be admissible if it is relevant for some other purpose (such as "to depict the existence of a hostile relationship between the defendant and the victim") and its probative value outweighs the risk of unfair prejudice. Commonwealth v. Oberle, 476 Mass. 539, 550 (2017), quoting from Commonwealth v. Linton, 456 Mass. 534, 551 (2010). "Determinations of the relevance, probative value, and prejudice of such evidence are left to the sound discretion of the judge, whose decision to admit such evidence will be upheld absent clear error." Commonwealth v. Robidoux, 450 Mass. 144, 158 (2007).

Here, the trial judge did not abuse his discretion in admitting this evidence. The prior incident, occurring just two months before the charged conduct, was relevant to contextualize the nature of the parties' relationship. See Oberle, 476 Mass. at 550-551. Additionally, the trial judge reduced the possibility of any undue prejudice by providing a limiting instruction to the jury. See id. at 550.

2. Admission of victim's medical records. Next, the defendant contends that the trial judge erred by allowing the admission of the victim's medical records, which although redacted, identified the defendant as the person who choked the victim. Medical records are admissible as an exception to the rule against hearsay, but only to the extent that the statements in those records are related to the patient's medical history or treatment. See G. L. c. 233, § 79. Accordingly, the victim's statements contained in her medical records that she had been choked for a period of time and had red marks on her neck were properly admitted. See Commonwealth v. Dimonte, 427 Mass. 233, 242 (1998).

As the Commonwealth concedes, however, the statement that she was the victim of an "assault" committed by "her boy friend" was not related to her medical treatment and thus should have been redacted. Because the defendant objected, we review the error in admitting these portions of the victim's medical records for prejudicial error. An error is only nonprejudicial where we are "sure that the error did not influence the jury, or had but very slight effect." Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).

Here, the jury acquitted the defendant of strangulation, indicating that the medical records had, at most, only a very slight effect. See Commonwealth v. Sosnowski, 43 Mass. App. Ct. 367, 372 (1997). Moreover, the statements were cumulative of photographs of the victim's injuries and the victim's detailed testimony identifying the defendant as choking her. See Commonwealth v. Womack, 457 Mass. 268, 275 (2010). Furthermore, the Commonwealth's closing argument relied principally on the victim's testimony, referencing the medical records only in response to trial counsel's argument that the victim left the hospital without being formally discharged. See Commonwealth v. Irene, 462 Mass. 600, 619 (2012).

3. Closing argument. The defendant finally argues that the prosecutor made two improper statements during closing argument requiring reversal of his convictions. He contends that the prosecutor improperly injected an expert opinion into the closing argument by describing the victim as a "battered woman." The isolated phrase, which was descriptive, was not improper in the context of the entire closing argument, see Commonwealth v. Renderos, 440 Mass. 422, 425 (2003), during which the prosecutor relied on the victim's testimony that she did not report the abuse earlier because, inter alia, she was frightened that he would beat her if she did and the defendant asked her not to report the abuse. See Commonwealth v. Grimshaw, 412 Mass. 505, 509 (1992). Contrary to the defendant's contention, the passing reference did not invite the jury to rely on expert opinion without an expert. Cf. Commonwealth v. Fredette, 56 Mass. App. Ct. 253, 263-264 (2002).

Next, the defendant maintains that the prosecutor improperly vouched for the victim's credibility when she stated, "Well, I'm still standing here" in response to the defendant's argument that the victim fabricated the incident. The Commonwealth concedes this was error, and we agree. See Commonwealth v. Shelley, 374 Mass. 466, 471 (1978). Because there was no objection, we review this error to determine whether it created a substantial risk of a miscarriage of justice. See Commonwealth v. Dirgo, 474 Mass. 1012, 1012 (2016). Here, this single remark did not, in the context of the entire argument, create such a risk. Commonwealth v. Cunneen, 389 Mass. 216, 223-224 (1983). The overwhelming majority of the prosecutor's argument focused on the evidence that the victim's testimony was consistent and thus should be believed. Moreover, the remark was counterbalanced by strong instructions by the judge on the issues of credibility, weight of the evidence, and the Commonwealth's burden of proof. See Commonwealth v. Fletcher, 52 Mass. App. Ct. 166, 174 n.6 (2001).

Judgment affirmed.

      The defendant was acquitted of strangulation or suffocation in violation G. L. c. 265, § 15D(b ).


text:
    Miriam DE OLIVEIRA & another v. FNBN1, LLC.
    17-P-471
    Appeals Court of Massachusetts.
    Entered: May 18, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Carlos Antonio De Oliveira. Because the plaintiffs share the same surname, we refer to them by their first names when necessary to distinguish between them.

   The plaintiffs, Carlos and Miriam De Oliveira, appeal from a judgment of the Superior Court entered in favor of the defendant, FNBN1, LLC, upon the parties' cross motions for summary judgment. On appeal, the De Oliveiras contend that they are entitled to retroactive application of Pinti v. Emigrant Mort. Co., 472 Mass. 226 (2015) (Pinti ), to invalidate the foreclosure on their property for FNBN1's noncompliance with paragraph 22 of their mortgage; that the foreclosure process was fundamentally unfair because of FNBN1's violation of G. L. c. 244, § 35A ; and that their claim under G. L. c. 140D was brought within the statute of limitations. We affirm.

Background. Carlos De Oliveira purchased a home at 16 Bellevue Avenue, Oak Bluffs, on April 9, 2007. On that same day, he granted a promissory note to First National Bank of Arizona (FNBA) and a mortgage on the property to Mortgage Electronic Registration Systems, Inc. (MERS) as nominee for FNBA. On September 6, 2011, MERS assigned the mortgage to FNBN1, and recorded the assignment at the Dukes County registry of deeds.

In early 2011, the De Oliveiras defaulted on the mortgage. Specialized Loan Servicing, LLC, servicer to FNBN1 (servicer), sent Carlos a right to cure letter dated March 14, 2011, in accordance with G. L. c. 244, § 35A. The servicer also sent Carlos three successive notices of default; the last was dated July 12, 2011. The De Oliveiras failed to cure the default, and a foreclosure sale was held on April 25, 2012. FNBN1 recorded a foreclosure deed on July 25, 2012, and on September 17, 2012, initiated a summary process action in the Edgartown District Court.

In June, 2013, a District Court judge allowed FNBN1's motion for summary judgment in the summary process action and judgment for possession entered in favor of FNBN1. In July, 2013, Carlos appealed that decision to the Appellate Division of the District Court, which affirmed the judgment some three and one-half years later, on February 23, 2017. While that appeal was pending, on April 22, 2014, the De Oliveiras filed this action in the Superior Court challenging the 2012 foreclosure. Judgment for FNBN1 entered on December 7, 2016; the judge ruled in the De Oliveiras' favor on their request for an accounting and for FNBN1 on the remainder of the complaint.

Discussion. Summary judgment is proper if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002). See Nurse v. Omega US Ins., Inc., 88 Mass. App. Ct. 458, 460-461 (2015). "We review a decision to grant summary judgment de novo." Deutsche BankNatl. Trust Co. v. Gabriel, 81 Mass. App. Ct. 564, 565 n.7 (2012). "We may consider any ground supporting the judgment." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).

1. Res judicata. In the Superior Court, the De Oliveiras argued that FNBN1 wrongfully foreclosed on their home because the notices of default did not strictly comply with paragraph 22 of the mortgage as required by Pinti, and that FNBN1's failure to provide an adequate right to cure letter under G. L. c. 244, § 35A, rendered the foreclosure fundamentally unfair. The judge ultimately concluded that the De Oliveiras had waived the Pinti issue by failing to raise it on appeal from the summary process judgment. We agree, and further conclude that both the Pinti claim and the § 35A claim are barred by principles of issue preclusion.

"The term 'res judicata' includes both claim preclusion and issue preclusion." Kobrin v. Board of Registration in Med., 444 Mass. 837, 843 (2005). "Claim preclusion makes a valid, final judgment conclusive on the parties and their privies, and prevents relitigation of all matters that were or could have been adjudicated in the action." Ibid., quoting from O'Neill v. City Manager of Cambridge, 428 Mass. 257, 259 (1998). "Similarly, issue preclusion 'prevents relitigation of an issue determined in an earlier action where the same issue arises in a later action, based on a different claim, between the same parties or their privies.' " Ibid., quoting from Heacock v. Heacock, 402 Mass. 21, 23 n.2 (1988). "A party is precluded from relitigating an issue where '(1) there was a final judgment on the merits in the prior adjudication; (2) the party against whom preclusion is asserted was a party (or in privity with a party) to the prior adjudication; and (3) the issue in the prior adjudication was identical to the issue in the current adjudication,' was essential to the earlier judgment, and was actually litigated in the prior action." DeGiacomo v. Quincy, 476 Mass. 38, 42 (2016), quoting from Kobrin, supra.

As to the first element, final judgment on the merits of the summary process action entered in June, 2013, almost a year before the De Oliveiras filed their Superior Court complaint. See Campos v. Van Houtum, 45 Mass. App. Ct. 918, 919 (1998), quoting from O'Brien v. Hanover Ins. Co., 427 Mass. 194, 200-201 (1998) ("[A] trial court judgment is final and has preclusive effect regardless of the fact that it is on appeal").

Secondly, Carlos was a party to the summary process action, and Miriam, by her own allegations, see note 2, supra, was in privity with him. "[T]he determination whether a nonparty is in privity with a party depends on the nature of the nonparty's interest, whether that interest was adequately represented by a party to the prior litigation, and whether binding the nonparty to the judgment is consistent with due process and common-law principles of fairness." DeGiacomo, 476 Mass. at 43-44. Here, Carlos's interest in preventing FNBN1 from gaining possession was clearly aligned with Miriam's. Binding her to the prior judgment does not offend due process or common-law principles of fairness, as she was aware of the summary process action and, in any event, Carlos adequately represented the relevant interests of all of the property's occupants.

Lastly, as defenses in the summary process action, Carlos asserted that FNBN1 was not entitled to possession because it did not comply with paragraph 22 of the mortgage or with G. L. c. 244, § 35A. Thus, the issues in the prior adjudication were identical to those raised in the Superior Court complaint and were actually litigated. And the issues were essential to the earlier judgment, as resolution in Carlos's favor would have precluded judgment of possession for FNBN1. See Federal Natl. Mort. Assn. v. Rego, 474 Mass. 329, 339 (2016) ("Where the affirmative defenses or counterclaims challenge the right to possession, the judge must resolve those claims as part of the summary process action").

The De Oliveiras further contend that they preserved these issues by explicitly reserving them in Carlos's brief to the Appellate Division. "However, litigants cannot unilaterally reserve rights to bring claims in later actions. Rather, the preservation of claims in this manner is the exclusive province of the court hearing the action." Santos v. U.S. Bank Natl. Assn., 89 Mass. App. Ct. 687, 693 (2016). The De Oliveiras contend that Santos was wrongly decided because it failed to take into account that under Rule 5 of the Uniform Summary Process Rules, "Counterclaims shall not be considered compulsory; that is, they shall not be considered waived for the purpose of a separate civil action or actions if not asserted in a summary process action." Here, however, Carlos did assert his Pinti and § 35A claims in the summary process action, they were decided against him, and he expressly waived them on appeal. The De Oliveiras cannot relitigate these claims in a subsequent action.

2. Chapter 140D claim. The De Oliveiras contend that the judge erred in determining that their G. L. c. 140D claim was time barred. "The Massachusetts Consumer Credit Cost Disclosure Act (MCCCDA), G. L. c. 140D, §§ 1 - 35, governs the rights and duties of creditors and obligors (borrowers or consumers) engaged in consumer credit transactions." May v. SunTrust Mort., Inc., 467 Mass. 756, 756 (2014). Carlos executed the note and mortgage on April 9, 2007. The De Oliveiras filed the Superior Court complaint more than seven years later. The statute of limitations for all claims under the MCCCDA is four years.

The De Oliveiras argue that the discovery rule tolled the statute of limitations because they are not fluent in English and were not represented by counsel at the closing. The discovery rule does not apply in these circumstances. Any alleged defects in the loan documentation were not concealed; they were apparent on the face of those documents. The De Oliveiras' alleged c. 140D claim was not inherently unknowable; it could have been discovered at any time with the exercise of reasonable diligence. See Albrecht v. Clifford, 436 Mass. 706, 714-715 (2002) ; Gore v. Daniel O'Connell's Sons, 17 Mass. App. Ct. 645, 647 (1984).

Finally, the remedy of rescission is plainly unavailable to the De Oliveiras, whether as plaintiffs or defendants-in-counterclaim. See May, 467 Mass. at 761-765. While, theoretically, they might assert a claim of recoupment under c. 140D against FNBN1 to offset any money damages that FNBN1 might have obtained by way of a counterclaim, id. at 765, in this case FNBN1's sole counterclaim was for possession.

Judgment affirmed.

      Carlos was the sole mortgagor; however, the complaint alleges that Miriam was involved with all aspects of the real estate transaction, contributed one-half of the down payment, and contributed to the monthly mortgage payments. Also, Carlos and Miriam jointly recorded a Declaration of Homestead.

      Carlos has appealed that decision to this court. We affirm the decision and order of the Appellate Division in the summary process action in a separate memorandum and order issued today. See FNBN1, LLC vs. De Oliveira, Mass. App. Ct., No. 17-P-726.

      Judgment also entered for FNBN1 on its counterclaim, a single count for possession.

      The summary process complaint named Carlos "and all occupants" as defendants, although the final judgment was amended "not to include Miriam deOliveira." The docket sheet lists Miriam as a defendant. She was represented by the same attorney who represented Carlos-and who continues to represent both of them in this court.

      In the summary process case, the judge who acted on the first motion for summary judgment discussed the § 35A and paragraph 22 notices. Correctly anticipating the result in U.S. Bank Natl. Assn. v. Schumacher, 467 Mass. 421, 431 (2014), with respect to the § 35A notice, but failing to anticipate Pinti regarding the requirements of paragraph 22, the judge explicitly rejected the § 35A claim, and implicitly rejected the paragraph 22 claim, on the ground that § 35A is not among the statutes relating to foreclosure by exercise of the power of sale. See DeGiacomo, 476 Mass. at 49 (giving preclusive effect to issue implicitly determined in prior action); Green v. Brookline, 53 Mass. App. Ct. 120, 127 (2001) (same). Carlos could have pursued both of these claims in his appeal to the Appellate Division, and if he had, the rule of retroactivity announced in Federal Natl. Mort. Assn. v. Marroquin, 477 Mass. 82 (2017), would have applied with respect to his Pinti claim. However, as discussed infra, he expressly abandoned his Pinti and § 35A claims in that appeal, purporting to reserve them for litigation in the Superior Court action that is the subject of this appeal.

      See G. L. c. 260, § 5A, as appearing in St. 1983, c. 636, § 29 ("Actions arising on account of violations of any law intended for the protection of consumers, including ... chapter one hundred and forty D ... shall be commenced only within four years next after the cause of action accrues"). See also G. L. c. 140D, § 10(f ), inserted by St. 1981, c. 733, § 2 ("An obligor's right of rescission shall expire four years after the date of consummation of the transaction or upon the sale of the property, whichever occurs first").


text:
    FNBN1, LLC v. Carlos Antonio DE OLIVEIRA.
    17-P-726
    Appeals Court of Massachusetts.
    Entered: May 18, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      The complaint named De Oliveira and "all occupants" as defendants. Judgment entered only against De Oliveira, and he is the sole appellant.

   In an action initiated in the District Court, a judge granted summary judgment in favor of the plaintiff, FNBN1, LLC, on a summary process action for possession and eviction of the defendant, Carlos Antonio De Oliveira. De Oliveira appealed to the Appellate Division of the District Court, which affirmed the judgment. On further appeal to this court, De Oliveira contends that (1) the District Court judge erred by granting FNBN1's motion for summary judgment because FNBN1 did not produce an affidavit complying with G. L. c. 244, § 15 ( § 15 affidavit); (2) the affidavit and business records submitted in support of the motion were not competent to establish that FNBN1 complied with the requirements of G. L. c. 244, § 14, concerning exercise of its power of sale; (3) Mortgage Electronic Registration Systems, Inc. (MERS) did not properly assign the mortgage to FNBN1; and (4) the mortgage was originated fraudulently. We affirm.

Background. De Oliveira purchased a home at 16 Bellevue Avenue, Oak Bluffs, on April 9, 2007, granting a mortgage on the property to MERS as nominee for the lender, First National Bank of Arizona. On September 6, 2011, MERS assigned the mortgage to FNBN1 and recorded the assignment at the Dukes County registry of deeds.

In early 2011, De Oliveira defaulted on his loan. Thereafter, Specialized Loan Servicing, LLC, servicer to FNBN1 (the servicer), sent De Oliveira a series of notices. First, the servicer sent a right-to-cure letter dated March 14, 2011, pursuant to G. L. c. 244, § 35A. The servicer then sent De Oliveira three successive notices of default and intent to foreclose, the last dated July 12, 2011, under paragraph 22 of the mortgage.

Eight months later, on March 22, 2012, FNBN1, through its attorneys, the Harmon Law Offices, PC, delivered to De Oliveira and all other record lien holders, by certified mail, notice that a mortgage foreclosure sale would take place on April 25, 2012. FNBN1 also caused notice of the foreclosure sale to be published on March 30, April 6, and April 13, 2012. FNBN1 purchased the property for $441,000 at the foreclosure sale held on April 25, 2012, and recorded a foreclosure deed and affidavit on July 25, 2012.

On September 17, 2012, FNBN1 initiated this summary process action in the Edgartown District Court. The parties filed cross motions for summary judgment, which the first motion judge denied. A second motion judge allowed FNBN1's second summary judgment motion, concluding that the uncontroverted materials submitted by FNBN1 demonstrated that it had properly exercised its power of sale. Judgment for possession entered in favor of FNBN1 on June 10, 2013. De Oliveira now appeals from the Appellate Division's affirmance of the judgment.

Discussion. "The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law." Bank of N.Y. v. Bailey, 460 Mass. 327, 331 (2011), quoting from Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). "Our review of a motion judge's decision on summary judgment is de novo, because we examine the same record and decide the same questions of law." Kiribati Seafood Co., LLC v. Dechert LLP, 478 Mass. 111, 116 (2017).

1. Section 15 affidavit. "In a summary process action for possession after foreclosure by sale, the plaintiff is required to make a prima facie showing that it obtained a deed to the property at issue and that the deed and affidavit of sale, showing compliance with statutory foreclosure requirements, were recorded." Bailey, 460 Mass. at 334. De Oliveira claims FNBN1 failed to make this prima facie showing because it failed to produce a sufficient § 15 affidavit.

"[A] plaintiff in a postforeclosure summary process case may make a prima facie showing of its right to possession by producing an attested copy of the recorded foreclosure deed and affidavit of sale under G. L. c. 244, § 15." Federal Natl. Mort. Assn. v. Hendricks, 463 Mass. 635, 637 (2012). However, a defective § 15 affidavit "does not void a foreclosure sale or the right to possession." Ibid. The foreclosing party may cure a defective affidavit of sale "by extrinsic evidence [showing] that the power of sale was exercised properly and the foreclosure was valid." Ibid. Thus, assuming without deciding that the Ryan-Polczinski affidavit did not comply with the statute, this deficiency alone does not preclude the entry of summary judgment for FNBN1. Rather, we must determine whether FNBN1 offered sufficient, uncontested extrinsic evidence to cure the defects.

2. Extrinsic evidence. With its second motion for summary judgment, FNBN1 submitted the affidavit of Kendra A. Keegan, attorney manager of the Post Sale Department at the office of FNBN1's foreclosing attorneys. Keegan authenticated numerous business records generated in connection with FNBN1's exercise of its power of sale. De Oliveira argues that the Keegan affidavit does not effectively establish that FNBN1 complied with G. L. c. 244, § 14, because, among other things, it asserts bare legal conclusions, is not based on personal knowledge, and does not establish the affiant's competency to testify. We disagree.

Keegan, as a manager of the firm, was competent to authenticate the foreclosing attorneys' business records. "The affidavit was made on the basis of personal knowledge of the ... practices of the [foreclosing attorneys] as well as a review of the business records and it was sufficient." First Natl. Bank of Cape Cod v. North Adams Hoosac Sav. Bank, 7 Mass. App. Ct. 790, 794 (1979). These records established that "advance notice of the foreclosure sale ha[d] been provided to the mortgagor, to other interested parties, and by publication in a newspaper published in the town where the mortgaged land lies or of general circulation in that town." U.S. Bank Natl. Assn. v. Ibanez, 458 Mass. 637, 647 (2011), citing G. L. c. 244, § 14. We agree with the second motion judge that Keegan's affidavit corrected any deficiencies in the § 15 affidavit.

3. Assignment of the mortgage. De Oliveira contends that MERS never held the mortgage and, therefore, could not assign it to FNBN1. De Oliveira also argues that even if MERS did hold the mortgage, the foreclosure sale was nonetheless invalid because FNBN1 was not assigned the mortgage until September 6, 2011, after De Oliveira received the right-to-cure letter and notices of default. These claims are meritless.

The first page of the mortgage plainly states that "MERS is the mortgagee under this Security Instrument." Page three states that De Oliveira "does hereby mortgage, grant and convey to MERS (solely as nominee for Lender and Lender's successors and assigns) and to the successors and assigns of MERS, ... the following described property ...." Under Massachusetts law, MERS may hold and assign mortgages. See Sullivan v. Kondaur Capital Corp., 85 Mass. App. Ct. 202, 209-210 (2014) ; Shea v. Federal Natl. Mort. Assn., 87 Mass. App. Ct. 901, 903 (2015). Thus, it is beyond dispute that MERS was the mortgagee and, as such, had the right to assign, and did assign, the mortgage to FNBN1.

De Oliveira provides no authority to support his contention that a foreclosing mortgagee is required to hold the mortgage at the time that the lender gives the requisite notices under G. L. c. 244, § 35A, and we are aware of none. To the contrary, even in a post-Eaton case, which this is not, a mortgage holder is not required to "hold both legal and equitable interest in the loan ... at the time of ... any previous transfers of the recorded mortgage interest." Sullivan, 85 Mass. App. Ct. at 210. Rather, to have the authority to foreclose, FNBN1 had to be the assignee of the mortgage "at the time of the notice of sale and the subsequent foreclosure sale." Ibanez, 458 Mass. at 648. Again, it is undisputed that MERS assigned the mortgage to FNBN1 prior to FNBN1's sending the notice of sale and foreclosure. Therefore, there are no triable issues of fact concerning MERS's assignment of the mortgage to FNBN1.

4. Fraud claim. De Oliveira also argues that there was fraud in the mortgage's origination. The Appellate Division did not consider this claim, concluding that the record contained "scant, if any, credible evidence of fraud as to FNBN[1]." Similarly, De Oliveira's brief in this court contains only unsupported allegations of fraud, with no connection to FNBN1. An "appellate court need not pass upon questions or issues not argued in the brief," Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975), and briefs that are limited to "bald assertions of error, lacking legal argument and authority" do not "rise[ ] to the level of appellate argument." Zora v. State Ethics Commn., 415 Mass. 640, 642 n.3 (1993). "As both a legal and a practical matter, [De Oliveira's] submissions provide an insufficient basis for this court reasonably to consider his claims." Kellogg v. Board of Registration in Med., 461 Mass. 1001, 1003 (2011).

Decision and order of the Appellate Division affirmed.

      In a separate memorandum and order issued today, we affirm the judgment in favor of FNBN1 in a subsequent action that De Oliveira and his wife brought in the Superior Court to challenge the foreclosure. See De Oliveira vs. FNBN1, LLC, Mass. App. Ct., No. 17-P-471.

      See Eaton v. Federal Natl. Mort. Assn., 462 Mass. 569 (2012). "The rule announced in Eaton was given only prospective effect, to foreclosure sales for which the mandatory notice of sale was given after the date of that opinion (June 22, 2012)." Sullivan, 85 Mass. App. Ct. at 209.

      Moreover, the servicer may properly give the notice required under G. L. c. 244, § 35A, as occurred here. See Haskins v. Deutsche Bank Natl. Trust Co., 86 Mass. App. Ct. 632, 641 (2014) (servicer is "within the scope of parties encompassed by the term 'mortgagee' in § 35A [h ][4]").


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    COMMONWEALTH v. Nikolas PAPADOPOULOS.
    17-P-9
    Appeals Court of Massachusetts.
    Entered: May 17, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant appeals from his conviction, after a jury trial, of negligent operation of a motor vehicle, G. L. c. 90, § 24(2)(a ). He claims the evidence was insufficient to support the conviction. After considering the evidence and the reasonable inferences to be drawn from it in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979), we affirm.

Background. On the afternoon of September 6, 2013, the defendant was driving three schoolmates home from school in his Mazda sport utility vehicle (SUV). The defendant drove westbound on the Casey Overpass, a part of the Arborway in the Jamaica Plain section of Boston that is four lanes wide with a concrete barrier dividing the two eastbound lanes from the two westbound lanes. That day, one of the westbound lanes was closed for construction and the remaining westbound lane was "in terrible disrepair" with "a lot of potholes."

Monica Thomas was driving her Lexus in the open westbound lane, proceeding "very slowly" in order to avoid the potholes, when the defendant pulled up "very close" to her rear bumper, making her "anxious." After Thomas crossed the overpass, traveling in the left lane and with no cars in front of her, she sped up to thirty or thirty-five miles per hour, in order to create distance between her vehicle and the defendant's SUV.

Thomas then saw in her rear-view mirror that the defendant's SUV, still behind her in the left lane, had its right "blinker" on. Next, Thomas heard, from behind her, "screeching sounds getting progressively closer to [her]. And louder." She looked in her rearview mirror and saw nothing, but as she glanced to her right, she saw the defendant's SUV coming towards her, "sort of on two wheels." She immediately stepped on her brakes; she then saw the defendant's SUV cross from the right lane into the left lane, approximately five feet in front of her Lexus, and then hit the median, become airborne, and go over the median. The defendant's SUV then collided head-on with an oncoming vehicle (the pickup truck). Thomas saw "two bodies fly out of" the SUV.

Just before the accident, the front seat passenger in the pickup truck saw two vehicles traveling in the westbound lanes. The defendant's SUV was in the right lane, either behind or beside the other vehicle. The defendant's SUV "swerve[d] one way, swerve[d] back the other, [and] cut in front of [the] vehicle that was in the left-hand lane." The passenger in the pickup truck heard screeching sounds from the tires of the defendant's SUV and saw it cross over the median and collide with the vehicle in which the passenger was riding.

Trooper Pereira, the Commonwealth's collision reconstruction analyst, examined tire markings and other evidence at the scene. He determined that the defendant's SUV, while on the westbound portion of the Arborway, had "turn[ed] right" in an "evasive action," then turned left and went back into the left lane, hit and crossed over the median, "roll[ed] over on the roadway," and collided with the pickup truck. The trooper calculated that the defendant was driving at a speed of fifty-one miles per hour at the time he lost control. The posted speed limit for the westbound portion of the overpass was thirty miles per hour. A postaccident analysis revealed no defects in the SUV's acceleration, speed control or throttle cables, or braking systems.

Discussion. A conviction of negligent operation of a motor vehicle requires the Commonwealth to "prove that the defendant (1) operated a motor vehicle (2) upon a public way (3) negligently so that the lives or safety of the public might be endangered." Commonwealth v. Ross, 92 Mass. App. Ct. 377, 379 (2017). The defendant challenges the sufficiency of the evidence only on the issue of his negligence.

The defendant first claims that the evidence that he drove at a negligent speed was "uncertain at best." He points to Thomas's testimony that the defendant drove behind her and that she drove no more than thirty to thirty-five miles per hour while leaving the overpass; and to the testimony of one of the passengers in the defendant's SUV that the defendant was driving at a "moderate" rate of speed. But the jury were entitled to credit Thomas's testimony to the effect that the defendant, after using his turn signal to indicate a lane change, passed her on the right-necessarily driving faster than she was-as well as the trooper's testimony that the defendant was driving fifty-one miles per hour.

The defendant further suggests that the mere occurrence of the collision does not prove he drove negligently. He points to Trooper Pereira's testimony about tire tracks left in the area by an unidentified third vehicle, driving at approximately seventy-eight miles per hour, that the trooper "[i]nitially" thought might have played a role in the accident. The defendant argues that his "evasive action" could have been a reasonable attempt to avoid the danger posed by that vehicle. But there was no evidence as to when those tire tracks were made, and numerous witnesses testified that they noticed only two vehicles (the defendant's and Thomas's) in the westbound lanes immediately before the accident. The jury were not required to believe that any third vehicle played a role.

The Commonwealth presented ample evidence from which the jury could find beyond a reasonable doubt that the defendant operated his SUV negligently. The jury could have found that the defendant tailgated Thomas's vehicle as they traveled on the one open lane on the overpass; that, once the roadway widened to two lanes, he signaled a lane change and then swerved into the right lane and accelerated to fifty-one miles per hour, tires squealing, in an attempt to pass her; and that then, whether purposefully or due to a loss of control, he swerved back into the left lane, up on two wheels, passing only five feet in front of Thomas, hit and crossed over the median, rolled over, and then collided with the pickup truck. The jury could find that some of these acts alone, and certainly all of them in combination, constituted negligent operation.

This is not a case where driving in excess of the speed limit is the only evidence of negligence. See Commonwealth v. Duffy, 62 Mass. App. Ct. 921, 922 (2004) (speeding alone "does not mandate ... a finding" of negligent operation of a motor vehicle, but it may be considered in combination with other factors as evidence of same). Nor is this a case like Aucella v. Commonwealth, 406 Mass. 415 (1990), in which the mere occurrence of a collision, "where the circumstances immediately preceding it are left to conjecture, [was] not sufficient to prove negligence on the part of the operator of the vehicle." Id. at 418 (quotation omitted).

Conclusion. The evidence was sufficient for the jury to find the defendant guilty, beyond a reasonable doubt, of negligent operation of a motor vehicle.

Judgment affirmed.

      The defendant was also found responsible by the trial judge for a marked lanes violation, two counts of failure to wear a seat belt, and speeding.

      The defendant's direct appeal was consolidated with his appeal from an order by a single justice of this court denying his motion to stay execution of the terms of his probation pending appeal. Prior to oral argument, the defendant withdrew all claims on appeal except the sufficiency claim.

      The driver of the pickup truck suffered a brain injury in the collision and did not testify. Pursuant to the judge's ruling on the defendant's motion in limine, no evidence of the injuries suffered by any individual involved in the accident, including the driver of the pickup truck and the two passengers ejected from the defendant's SUV, was introduced at trial.

      The jury could infer that Trooper Pereira later changed his view, but he was not asked whether or why he did so.

      Nor were the jury required to accept the defendant's theory, advanced in closing argument, that the tire tracks were left by Thomas's vehicle and that it was her dangerous driving the defendant was reasonably attempting to avoid. We also note that the judge, at the defendant's request, twice instructed the jury that in determining whether the defendant was negligent, they could consider whether the defendant faced a sudden emergency that required a rapid decision, and, if so, whether the Commonwealth had proven beyond a reasonable doubt that he failed to act as a reasonable person would under similar emergency circumstances.


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    DORCHESTER CHIROPRACTIC & REHAB CENTERS, INC. v. COMMERCE INSURANCE COMPANY.
    17-P-1124
    Appeals Court of Massachusetts.
    Entered: May 17, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Doing business as Care Plus Chiropractic & Rehab.

   The plaintiff medical services provider filed suit to recover unpaid personal injury protection (PIP) benefits on behalf of its patient, Margarita Rodriguez, who was injured in an automobile accident. Defendant Commerce Insurance Company (Commerce), Rodriguez's insurer, denied coverage, invoking a policy exclusion that denies PIP benefits where the insured "contributed to his or her injury by operating an auto ... while under the influence of alcohol" (alcohol exclusion). A Boston Municipal Court judge granted summary judgment to Commerce, and a divided panel of the Appellate Division affirmed. Because the summary judgment record reveals genuine issues of material fact, we reverse that portion of the decision and order of the Appellate Division dismissing the plaintiff's claim for breach of contract.

Background. On August 23, 2014, Rodriguez was injured in a serious two-car crash at an intersection in the Dorchester section of Boston. Rodriguez was extracted from her vehicle and taken to the hospital, where she was treated for her injuries. According to hospital records, which were certified pursuant to G. L. c. 233, § 79, upon arrival at the hospital Rodriguez had an odor of alcohol and she was ultimately diagnosed, inter alia, with ETOH (ethyl alcohol) intoxication. Her blood ethanol level was 141 mg/dl.

The police report regarding the crash, however, does not mention anything regarding alcohol. The police report also does not contain a description of how the accident happened, or where the two vehicles were traveling prior to striking each other. The only information in the police report as to the collision was a statement, attributed to one of the occupants of the car that collided with Rodriguez, that Rodriguez's car "came out of nowhere."

The plaintiff provided medical services to Rodriguez and then sought reimbursement from Commerce. Commerce paid the plaintiff's first bill, in the amount of $1,079.14. Commerce refused to provide PIP benefits for the remaining amounts, however, on the basis of the alcohol exclusion.

After the plaintiff filed suit, Commerce moved for summary judgment, relying primarily on an affidavit from one of its own employees, as well as the hospital records. The plaintiff's opposition to summary judgment did not rely on any counter affidavits. Instead, the plaintiff contended that the summary judgment record revealed genuine issues of material fact, including (1) whether Rodriguez was "under the influence of alcohol" at the time of the accident, and (2) whether Rodriguez had "contributed to [her] injury."

The Boston Municipal Court judge allowed the summary judgment motion, and a divided panel of the Appellate Division affirmed, reasoning that the hospital records "support[ ] the finding" that Rodriguez was operating under the influence, and further concluding that Rodriguez contributed to her injury because "[t]he accident occurred when Ms. Rodriguez took a left hand turn across the path of another vehicle." The dissenting judge concluded, to the contrary, that the summary judgment record revealed genuine issues of material fact both as to whether Rodriguez contributed to her injuries, and whether she was under the influence of alcohol at the time of the accident. The plaintiff appeals.

Discussion. PIP benefits are a standard coverage required for automobile insurance policies in Massachusetts. See G. L. c. 90, § 34M ; Commerce Ins. Co. v. Alvarado, 83 Mass. App. Ct. 604, 606 (2013). They cover "all reasonable expenses incurred within two years from the date of accident for necessary medical, surgical, x-ray, and dental services," and are to be paid expeditiously, without reference to fault, so that insureds will have necessary funds available to cover the immediate expenses of injury from an accident. G. L. c. 90, § 34A. Accord Fascione v. CNA Ins. Cos., 435 Mass. 88, 94 (2001) ; Ortiz v. Examworks, Inc., 470 Mass. 784, 787-788 (2015). Rodriguez's policy provided for up to $8,000 per person in PIP benefits.

By statute, however, insurers may exclude an insured from PIP benefits if such person's "conduct contributed to his [or her] injury in any of the following ways while operating a motor vehicle in the [C]ommonwealth: (1) while under the influence of alcohol...." G. L. c. 90, § 34A. By its plain terms, the alcohol exclusion requires that the insurer make two distinct showings: (1) that the insured was "operating a motor vehicle ... while under the influence of alcohol," and (2) that the insured's "conduct contributed to [her] injury." Ibid. See Sullivan v. Brookline, 435 Mass. 353, 360 (2001) (statutory language should be given effect consistent with its plain meaning). Because Commerce is relying on a policy exclusion, it has the burden of proof. Norfolk & Dedham Mut. Fire Ins. Co. v. Cleary Consultants, Inc., 81 Mass. App. Ct. 40, 52 (2011).

To prevail on a motion for summary judgment, the moving party must "show," by reference to pleadings, discovery materials, or affidavits, "that there is no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law." Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002). Where affidavits are submitted, they must be "made on personal knowledge," and "set forth such facts as would be admissible in evidence." Mass.R.Civ.P. 56(e), 365 Mass. 824 (1974). Since Commerce had the burden of proof here, it was required to show that there were no genuine factual issues as to each element needed to establish that the alcohol exclusion applied. See Carey v. New England Organ Bank, 446 Mass. 270, 278 (2006).

We review an order granting summary judgment de novo. We consider the evidence submitted in the light most favorable to the party opposing summary judgment, to determine whether the moving party is entitled to judgment as a matter of law. Federal Natl. Mort. Assn. v. Hendricks, 463 Mass. 635, 637 (2012).

Here, Commerce has the burden to show that Rodriguez's conduct "contributed to ... her injur[ies]," and its summary judgment materials failed to establish that there was no genuine issue of fact as to that element. There was, in fact, no evidence in the summary judgment record as to how the car crash occurred, nor any evidence of how Rodriguez contributed to it. The police report did not describe where the cars were coming from or going to, or how they came to collide. There was no affidavit or deposition testimony from any participant or witness to the crash. According to Commerce, Rodriguez stated that she had "little memory" of the collision, only that she was "about to" make a left-hand turn when the crash occurred. That statement is not probative of fault; neither is the statement in the police report that Rodriguez's car "came out of nowhere."

Even if we were to assume that the record sufficiently established that Rodriguez was under the influence of alcohol at the time, that would not establish as a matter of law that she contributed to her injuries. As noted above, the "under the influence" and "contributed to" elements are distinct in the policy. Moreover, standing alone, being under the influence at the moment an accident occurs is not necessarily dispositive of fault; suppose, for example, that Rodriguez had been rear-ended while waiting to make a turn. The problem here is that the summary judgment record is bare as to how the crash occurred, and we are not at liberty to substitute what we might think was likely.

We have also considered whether the record established no genuine issue as to whether Rodriguez was under the influence of alcohol at the time of the crash. While a closer question, we cannot so conclude. The hospital records do reflect a blood ethanol serum level of 141 mg/dl, and a diagnosis of "ETOH intoxication." The blood serum level apparently would translate to a blood alcohol level of 0.12, well above the 0.08 blood alcohol level that defines driving under the influence in G. L. c. 90, § 24(1)(a ). Faced with this admissible evidence in the summary judgment record, as to the "under the influence" element the plaintiff could not rest on its pleadings, but instead needed to respond with "specific facts" showing a genuine triable issue as to whether Rodriguez was under the influence during the crash. Mass.R.Civ.P. 56(e). Here, however, the plaintiff satisfied its obligation by pointing to the police report, which did not mention anything concerning alcohol even though it was prepared by a police officer who interacted with Rodriguez immediately after the crash. At least in the absence of additional evidence on this issue from the police officer or others, we cannot conclude that there is no genuine issue of material fact and that the "under the influence" element has been established as a matter of law.

In addition to its contract claim pursuant to G. L. c. 90, § 34M, the plaintiff also asserted a claim under G. L. c. 93A, §§ 9 and 11, alleging that Commerce engaged in unfair and deceptive trade practices and unfair claim settlement practices in denying the plaintiff's claim. As to the G. L. c. 93A claim, we affirm the grant of summary judgment. The plaintiff had the burden of proof on this claim, and submitted nothing in its opposition to the summary judgment motion that would raise a triable issue of fact concerning an unfair or deceptive trade or insurance practice. See Caira v. Zurich Am. Ins. Co., 91 Mass. App. Ct. 374, 381-382 (2017), citing Guity v. Commerce Ins. Co., 36 Mass. App. Ct. 339, 343-344 (1994) (where insurance company adopts "reasoned legal position" based on existing law and circumstances, no unfair settlement claim lies under G. L. c. 93A and G. L. c. 176D).

The portion of the decision and order of the Appellate Division dismissing the plaintiff's contract claim is reversed. In all other respects, the decision and order is affirmed.

So ordered.

Reversed in part; affirmed in part.

      The relevant facts are taken from the summary judgment record, and are viewed in the light most favorable to the plaintiff as the nonmoving party. See Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).

      The plaintiff brought claims for breach of contract, pursuant to G. L. c. 90, § 34M, and of unfair trade practices, pursuant to G. L. c. 93A, §§ 9 and 11. The c. 93A claim included unfair claim settlement practices pursuant to G. L. c. 176D, § 3.

      The statement in the Appellate Division's decision, to the effect that Rodriguez made a left turn across traffic, is not supported by admissible evidence in the summary judgment record. While the affidavit from an employee of Commerce purports to determine that Rodriguez was at fault because she took a "left-hand turn across the path of the adverse motor vehicle," there was no evidence presented supporting that statement. The Commerce employee affiant, of course, was not a percipient witness.

      The plaintiff objects to translating the blood serum alcohol level to a blood alcohol level, contending that there was no evidence in the summary judgment record regarding such a translation, and that expert testimony would be required. See Commonwealth v. Dube, 413 Mass. 570, 571 n.2 (1992). See generally Commonwealth v. Sargent, 24 Mass. App. Ct. 657, 658-659 (1987) (noting difference between serum alcohol reading and blood alcohol reading). Given our resolution here, this issue-and whether there is "genuine" dispute as to it-can be addressed on remand.

      Commerce's request for costs pursuant to Mass.R.A.P. 26, as amended, 378 Mass. 925 (1979), is denied. The plaintiff has requested attorney's fees and costs pursuant to G. L. c. 90, § 34M. Any decision as to awardable fees and costs must await further proceedings in the trial court.


text:
    Lucy O. CRANE v. Robert W. CRANE.
    17-P-233
    Appeals Court of Massachusetts.
    Entered: May 17, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The husband appeals from the second amended judgment of divorce nisi, specifically challenging the division of marital assets. He makes two arguments on appeal: first, he argues that the judge abused her discretion when she declined to offset a $304,554 payment given to the wife from the sale of the marital home; and second, he contends that the judge abused her discretion by treating as advances on the marital estate $439,000 of litigation and other expenditures related to the husband's children from his first marriage. We affirm.

The facts are essentially undisputed, and we summarize only those pertinent to the issues on appeal. The parties had a ten-year marriage that produced a set of twins in June of 2007. The husband in addition had two children from an earlier marriage. Each spouse brought significant, but unequal, assets into the marriage: the husband brought assets valued at $2.9 million, while the wife brought $900,000. "In recognition of the unequal financial contributions of the parties on the date of the marriage," the judge gave each party an offset equal to the amount he/she brought into the marriage. "From there, the balance of $3.27 million [of marital assets] shall be divided approximately in half, in special consideration of the parties' relatively equal contributions to the marriage and Husband's superior opportunity to acquire future capital assets and income" (emphasis added).

The husband filed a motion to alter or amend the judgment, raising nine specific contentions of error in the judgment. That motion was allowed in part and denied in part, with the judge giving specific additional explanation as to her reasoning with respect to each item. Although the judge adjusted certain portions of the original judgment, she concluded overall that the "changes do not materially affect the findings of fact and do not disturb the overall scheme of distribution of the parties' assets nor its rationale."

The husband's arguments can be viewed as stemming from the fact that although the judge stated that she intended an "approximately" equal division of the property accumulated during the marriage, the ultimate division of those assets was not fifty-fifty. But the goal of G. L. c. 208, § 34, is "an equitable, rather than an equal, division of property." Williams v. Massa, 431 Mass. 619, 626 (2000). As long as the judge considers all the relevant § 34 factors together, giving each the weight the judge deems appropriate, "a judge's determination on the equitable division of marital property will not be disturbed." Id. at 631. Contrast Sampson v. Sampson, 62 Mass. App. Ct. 366, 371 (2004) (property division vacated where judge's purported equal division was inequitable). With these general principles in mind, we now turn to the husband's two specific claims of error.

The husband first argues that the judge abused her discretion by declining to offset the $304,553.99 payment given to the wife from the sale of the marital home. In dividing the marital property, the judge assigned the marital home to the husband at its fair market value, $1,417,500, rather than the purchase price, $1,280,000. The judge then declined to offset the $304,553.99 sale proceeds paid to the wife. The husband argues that this decision resulted in "double dipping" or a double benefit to the wife because the house was counted against him at a price higher than he paid for it and the sale proceeds were not counted against her. We have previously stated that "double dipping" may arise from "the seeming injustice that occurs when property is awarded to one spouse in an equitable distribution of marital assets and is then also considered as a source of income for purposes of imposing support obligations." Champion v. Champion, 54 Mass. App. Ct. 215, 219 (2002). In that sense, double dipping did not occur here; the judge did not consider the marital home as a source of income for purposes of imposing support obligations.

Moreover, we see no inequity in the judge's handling of the proceeds of the sale of the marital home, which was grounded on permissible considerations and solidly on the facts. The judge rested her decision on the husband's use of marital funds to purchase the home, "[h]is conduct in trying to force a rapid sale at a reduced price, and then buying the marital home for himself" below market value, and the benefit of owning the home, which meant he did not have to move. She balanced these financial advantages to the husband against the disadvantages to the wife who, after the home was sold, "had little time to find a suitable residence" and whose "search was difficult because the children were still in school and she did not have adequate liquid funds to make a down-payment on a house." In addition, the husband's refusal to comply with a court order requiring him to give the wife her portion of the proceeds from the marital home exacerbated the wife's disadvantage. Given the inequities caused by the husband's conduct, we cannot say it was abuse of discretion for the judge to decline to offset the payment as part of her overall assessment of all the § 34 factors.

The husband also argues that the judge abused her discretion by treating $439,000 of expenditures related to the children of his first marriage as advances on his share of the marital estate. In fact, the judge did not treat all of those expenditures as advances. The judge treated $130,000 spent on the children as an advance because the funds "were in excess of [the husband's] child support obligations and were not spent in furtherance of the marriage." By contrast, the amounts spent on child support ($380,000) and for his daughter's college tuition ($140,000) were not treated as advances.

The judge did, however, treat $309,000 expended in litigation against the husband's first wife as an advance. The judge found those expenses to be unreasonable. The husband's first marriage ended in a contentious divorce. She also found that the wife did not have full knowledge of those expenses, nor did she consent to them. Ultimately, the judge found that the expenses were not made in furtherance of the marital enterprise. Conduct that has an adverse impact on the marital estate may be "considered as a factor that would diminish that spouse's equitable share of the marital property." Kittredge v. Kittredge, 441 Mass. 28, 38 (2004). When the husband spent beyond what the judge determined was reasonable, he eliminated resources that would have otherwise been part of the marital property and subject to division. The judge was, therefore, within her discretion to consider the loss to the marital estate from the husband's unreasonable spending in her analysis of the § 34 factors. See id. at 43 (judge permitted to consider husband's losses from gambling as factor in dividing marital estate); Salten v. Ackerman, 64 Mass. App. Ct. 868, 873-874 (2005) (judge permitted to consider husband's losses from bad investments as factor in dividing marital estate).

Second amended judgment affirmed.

      Because the husband only challenges the division of marital assets, we limit our summary of the judge's extensive findings to those that relate to that aspect of the judgment.

      The parties also filed a joint motion to amend the judgment to allow the wife to resume using her former name and to issue "a wage assessment for payment of child support." The judge allowed the joint motion.

      Indeed, neither party received spousal support. The record demonstrates that the judge limited her consideration of child support to entirely appropriate factors. See Massachusetts Child Support Guidelines § II (2013) (defining factors to be considered in setting child support order).

      After the wife filed for divorce, the parties decided to sell the marital home. The husband pushed for the home to be sold immediately, representing to the court that the parties could not afford to keep the home. At the husband's request, a special master was appointed to oversee the sale of the marital home and the court ordered that "each party shall be obligated to accept an offer that is within 3.5 [percent] of the listing price." Initially, the marital home was listed at $1.425 million, with agreed monthly reductions in price for every month the property did not sell. Ultimately, the price dropped to $1.325 million and the husband offered to purchase the home for $1.28 million, exactly three and one-half percent below the asking price. The special master accepted the husband's offer. The wife moved out of the home after the husband's offer was accepted and the husband continued to live in the home. The wife received $304,553.99 from the sale.

      In fact, litigation regarding the husband's two children from the first marriage continued during the parties' marriage.

      We deny the wife's request, pursuant to G. L. c. 208, § 38, for legal fees associated with this appeal.


text:
    COMMONWEALTH v. Mickal LACAZE.
    17-P-362
    Appeals Court of Massachusetts.
    Entered: May 17, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury trial, the defendant, Mickal Lacaze, was found guilty of stalking, G. L. c. 265, § 43(a ), and intimidation of a witness, G. L. c. 268, § 13B. The defendant was acquitted of two counts of threatening to commit a crime, G. L. c. 275, § 2. On appeal, the defendant argues that the trial judge's failure to provide the jury with a "no adverse inference" instruction constituted reversible error. The defendant further argues that the judge erred by admitting electronic mail messages (e-mails) written by the defendant in evidence and failing to instruct the jury that they must find by a preponderance of the evidence that the defendant authored the e-mails. Finally, the defendant argues that the Commonwealth bolstered its case by improperly eliciting certain testimony from one of its witnesses and that defense counsel's failure to object to the testimony of the Commonwealth's witness amounted to ineffective assistance of counsel. For the reasons that follow, we affirm.

Background. Based on the evidence, the jury could have found the following facts.

The defendant's employment with H & R Block was terminated in 2010. In March, 2014, the defendant's former H & R Block manager (manager) received a series of threatening e-mails from the defendant and reported the incident to the police. The defendant was subsequently arraigned on charges of threatening to commit a crime and stalking. After his arraignment on those charges, the defendant sent the manager further threatening e-mails. Those e-mails were forwarded to the police, and another complaint issued charging the defendant with witness intimidation and another count of threatening to commit a crime. The defendant was ultimately convicted of stalking and witness intimidation.

Discussion. 1. "No adverse inference" instruction. After the trial judge recited the jury instructions following closing arguments, the defendant requested at sidebar that the trial judge further provide the jury with a "no adverse inference" instruction based on the defendant's decision to not testify in his own defense. The judge stated that he would give the appropriate instruction, but then failed to do so. The defendant did not object or otherwise bring this omission to the judge's attention.

"When a defendant requests an instruction regarding his election not to testify, the trial judge must give an instruction that minimizes the risk that the jury will draw an adverse inference from his election." Commonwealth v. Botelho, 87 Mass. App. Ct. 846, 848 (2015). The judge's failure to provide the jury with such an instruction therefore constituted error. Because the defendant failed to object to the judge's omission, we review to determine whether the error created a substantial risk of a miscarriage of justice. See Commonwealth v. Dussault, 71 Mass. App. Ct. 542, 544 (2008). In determining whether the failure to give a jury instruction requested by the defendant created a substantial risk of a miscarriage of justice, we consider "whether the Commonwealth presented a strong case against the defendant," and "whether the error is sufficiently significant in the context of the trial to make plausible an inference that the [jury's] result might have been otherwise but for the error." Botelho, supra at 851 (quotation omitted).

Here, the evidence supporting the guilty verdicts was strong. The defendant alluded to killing the manager numerous times in the e-mails admitted in evidence. The defendant also referenced the manager's participation in the criminal case against him, stating that the manager should "mind [her] manners in court" because he may "lose control of [him]self and beat the shit out of [the manager]." The manager testified that she felt threatened by the e-mails and that they made her very upset.

The error also was not significant in the context of the trial. The jury found the defendant not guilty of two counts charging him with threatening to commit a crime. Moreover, the judge, in his instructions to the jury, stated that the defendant was not required to prove his innocence or produce any evidence because the burden of proof is entirely on the Commonwealth.

The defendant's reliance on Commonwealth v. Green, 25 Mass. App. Ct. 751 (1988), and Botelho, supra, is misplaced. In Green, supra at 752, 754-755, the prejudice created by the judge's failure to provide the jury with a "no adverse inference" instruction was compounded by the judge's improper remarks indicating that he did not believe that witnesses intentionally lie. Likewise, in Botelho, supra at 853, the prejudice created by the judge's failure to provide the jury with a "no adverse inference" instruction was aggravated by the prosecutor's statements during closing arguments that "served to focus the jury's attention on the defendant's failure to testify." Here, no other error "exacerbated the prejudice attendant to the judge's failure to give the adverse inference instruction." Ibid. Based on the foregoing, we conclude that there was no substantial risk of a miscarriage of justice.

2. E-mail authentication. A voir dire was held prior to trial to authenticate the e-mails that the Commonwealth sought to introduce in evidence. The e-mails were sent from an e-mail address containing the defendant's name and were signed with the defendant's name. The manager testified that the defendant was associated with the sender's e-mail address and that the defendant knew the manager's e-mail address from his prior employment with H & R Block. The manager further testified that the defendant referenced his employment with H & R Block, as well as the circumstances surrounding his termination, in the e-mails. She also testified that the defendant mentioned two other H & R Block employees, both of whom worked with the defendant, by name in the body of an e-mail.

Before admitting in evidence an electronic communication purportedly authored by a defendant, the trial judge must first "determine whether the evidence was sufficient for a reasonable jury to find by a preponderance of the evidence that the defendant authored the e-mails." Commonwealth v. Purdy, 459 Mass. 442, 447 (2011). "Evidence that the defendant's name is written as the author of an e-mail or that the electronic communication originates from an e-mail ... that bears the defendant's name is not sufficient alone to authenticate the electronic communication as having been authored or sent by the defendant.... There must be some 'confirming circumstances' sufficient for a reasonable jury to find by a preponderance of the evidence that the defendant authored the e-mails." Id. at 450. See Mass. G. Evid. § 901(b)(11) (2018).

The confirming circumstances presented in this case were sufficient for the trial judge to conclude by a preponderance of the evidence that the e-mails were sent by the defendant. The testimony of the manager indicated that the defendant was associated with that e-mail address, and that the defendant knew the manager's e-mail address from his previous employment at H & R Block. As the manager testified, the e-mails themselves discuss the circumstances and timing of the termination of the defendant's employment, and name specific H & R Block employees that he worked with during his tenure with the company. This evidence served to establish by a preponderance of the evidence that the defendant authored the e-mails, and the e-mails were properly submitted to the jury.

The defendant further argues that the judge erroneously failed to instruct the jury that they must find that the defendant authored the e-mails by a preponderance of the evidence. While the judge should have given such an instruction, we conclude that the omission did not give rise to a substantial risk of a miscarriage of justice. See Commonwealth v. Gilman, 89 Mass. App. Ct. 752, 759 n.8 (2016).

3. Bolstering of a Commonwealth witness. The defendant argues that the Commonwealth improperly bolstered its case by presenting the testimony of Detective Moy, the Boston police detective assigned to investigate the case. Detective Moy testified that he sought a criminal complaint against the defendant after receiving a report that the defendant sent threats to the manager and reviewing the e-mails. Detective Moy stated that the defendant was arraigned on that complaint in May, 2014. Detective Moy went on to testify that he applied for an additional complaint against the defendant after he was forwarded further e-mails received by the manager after the defendant's initial arraignment.

There is no merit to the defendant's contention that Detective Moy's testimony improperly bolstered the Commonwealth's case. Detective Moy's testimony was necessary for the Commonwealth to establish that a criminal proceeding was initiated against the defendant at the time he threatened the manager, for the purposes of proving the elements of intimidating a witness. See G. L. c. 268, § 13B ; Instruction 7.360 of the Criminal Model Jury Instructions for Use in the District Court (2014). Because Detective Moy's testimony was properly admitted, the defendant's claim that defense counsel was ineffective for not objecting to that testimony must also fail. See Commonwealth v. Eddington, 71 Mass. App. Ct. 138, 147 (2008).

Judgments affirmed.


text:
    TOWN OF LEYDEN v. Martin L. COHEN.
    16-P-826
    Appeals Court of Massachusetts.
    Entered: May 16, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Martin L. Cohen, appeals from the denial of his motion to vacate a default judgment of the Land Court. We agree with the motion judge that Cohen did not meet his burden, and affirm.

On October 10, 2013, the town of Leyden filed a tax lien foreclosure action in the Land Court, seeking to take land owned by Cohen due to his failure to pay property taxes to the town. Although Cohen filed a written answer on March 17, 2014, he failed to appear at a hearing on the town's motion for entry of legal finding, after which he was defaulted. Pursuant to the town's motion, the court entered a default judgment against Cohen on September 29, 2014. More than ten months later, on August 13, 2015, Cohen moved to vacate the judgment based on excusable neglect, Mass.R.Civ.P. 60(b)(1), 365 Mass. 828 (1974), and fraud, Mass.R.Civ.P. 60(b)(3). The judge denied the motion after a hearing.

We review the denial of a rule 60(b) motion to vacate a default judgment for an abuse of discretion. See Hermanson v. Szafarowicz, 457 Mass. 39, 48 (2010). To obtain relief under rule 60(b), "a party must show both a good reason to remove the default and also the existence of meritorious claims or defenses." Clamp-All Corp. v. Foresta, 53 Mass. App. Ct. 795, 806 (2002).

Under rule 60(b)(1), a party must show mistake, inadvertence, surprise, or excusable neglect. See Berube v. McKesson Wine & Spirits Co., 7 Mass. App. Ct. 426, 429 (1979). Cohen argues that his failure to attend the hearing where the default entered was excusable because he was a pro se defendant who was unfamiliar with the legal system. He claimed that he suffered from certain health maladies including "attention deficit disorder, migraine headaches, and depression." Cohen also stated, however, that "[he] did not see a need to pick up the mail." For a mistake or neglect to be excusable it cannot have been the result of the party's own carelessness. Murphy v. Administrator of Div. of Personnel Admin., 377 Mass. 217, 228 (1979). It was within the judge's discretion to determine that Cohen's failure to check his mail so he would receive notice of the hearing and know when to appear in court was not excusable but careless. The fact that Cohen was pro se did not excuse him from complying "with the relevant rules of procedure and substantive law." Bates v. Commonwealth, 434 Mass. 1019, 1020 n.2 (2001).

Under rule 60(b)(3), "[r]elief may be granted ... if there has been fraud." Owens v. Mukendi, 448 Mass. 66, 73 (2006). Cohen argues that the town perpetrated a fraud upon the court by representing to the court that its tax records were accurate when it knew they may not be. More specifically, Cohen contended that the town did not give him credit for payments he had made. In response, the town explained that Cohen had three properties and that payments Cohen claimed were not credited were actually credited with respect to the other parcels of land. Thus, Cohen's argument does not amount to a fraud on the court; rather, it simply reflects conflicting evidence. Cf. Wojcicki v. Caragher, 447 Mass. 200, 209-210 (2006) (false testimony alone does not establish fraud on the court).

There was no abuse of discretion in the denial of the motion to vacate the default judgment.

Order denying motion to vacate default judgment affirmed.

      Because Cohen failed to show good cause to remove the default, we need not address the question whether he established a meritorious defense.


text:
    Brian JOHNSON v. Peter FREI.
    17-P-218
    Appeals Court of Massachusetts.
    Entered: May 16, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Brian Johnson sued Peter Frei in District Court for violating the State wiretap statute. See G. L. c. 272, § 99(Q) ( § 99 [Q] ). Frei counterclaimed for numerous torts, including a violation of the Massachusetts Civil Rights Act, G. L. c. 12, §§ 11H & 11I (MCRA). The Appellate Division affirmed the jury's verdicts in favor of Johnson on his wiretap claim, and in favor of Frei on his claims under the MCRA and for defamation. It also affirmed the order allowing Johnson's motion for a directed verdict on Frei's abuse of process claim.

In this cross appeal, both parties raise numerous issues. Specifically, Frei challenges (1) the order granting Johnson's motion for a directed verdict on his abuse of process claim; (2) the sufficiency of the evidence on Johnson's claim that Frei violated the wiretap statute; (3) the judge's attorney's fee award to Johnson; and (4) the judge's failure to order sanctions against Johnson's attorney pursuant to Mass.R.Civ.P. 11(a), as amended, 456 Mass. 1401 (2010), for purportedly misrepresenting the holding of a case. For his part, Johnson challenges (1) the sufficiency of the evidence on Frei's MCRA claim; and (2) the award to Frei of attorney's fees. We affirm the decision and order of the Appellate Division, except for so much of the decision and order as affirmed the allowance of Johnson's motion for a directed verdict on Frei's abuse of process claim.

1. Abuse of process. This court reviews the allowance of a motion for a directed verdict to determine whether, "anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff." Claudio v. Chicopee, 81 Mass. App. Ct. 544, 546 (2012), quoting from Dobos v. Driscoll, 404 Mass. 634, 656, cert. denied sub nom. Kehoe v. Dobos, 493 U.S. 850 (1989).

To satisfy a claim of abuse of process, the evidence must establish that "(1) 'process' was used; (2) for an ulterior or illegitimate purpose; (3) resulting in damage." Vittands v. Sudduth, 49 Mass. App. Ct. 401, 406 (2000), quoting from Kelley v. Stop & Shop Cos., 26 Mass. App. Ct. 557, 558 (1988). This tort imposes liability for "coercion to obtain a collateral advantage, not properly involved in the proceeding itself." Vittands, supra, quoting from Cohen v. Hurley, 20 Mass. App. Ct. 439, 442 (1985).

Here, evidence that Johnson filed suit against Frei satisfies the "use of process" element, Silvia v. Building Inspector of W. Bridgewater, 35 Mass. App. Ct. 451, 453 n.4 (1993), and the evidence of Johnson and Frei's acrimonious history, and the timing of the suit rendered "immaterial [the fact] that the process was ... obtained in the course of proceedings that were brought with probable cause and for a proper purpose." Vittands, supra at 406, quoting from Kelley, supra. In response to several postings Frei wrote on his blog sharply criticizing Johnson, who is an elected official in the town of Holland (town), Johnson repeatedly and aggressively confronted Frei. Johnson called Frei "white trash," "a scumbag," a "loser," and "the dumbest person [he'd] ever met." In one instance, Johnson, told him to "cut out that bullshit ... on your blog," and aggressively stood near Frei's car. In the confrontations that precipitated Frei's surreptitious recording, Johnson and several of his friends set up ice fishing holes a mere few feet away from Frei's house on Lake Hamilton. The group displayed a sign pointed at Frei's home that read "EAT ME." The men were loud and boisterous. One individual even urinated on Frei's property. This behavior persisted until the confrontation that culminated with Frei's recording Johnson.

According to Frei, he walked up to the men to ask them to leave when he was intentionally knocked to the ground. According to Frei, while he was down on the ice, Johnson was about to kick him but stopped when Frei announced that he was recording the incident. Johnson commenced his suit against Frei after Frei posted the recording to his blog. Accordingly, despite the merit in Johnson's § 99(Q) claim, on the basis of the parties' acrimonious history and the events that transpired on the ice prior to Frei's surreptitious recording, the jury could have readily inferred that Johnson's suit was an extension of his prior attempts to compel Frei to remove his blog, rather than a good faith attempt to recover damages for Frei's unlawful activities.

Last, if the jury were to find that Johnson commenced suit with an ulterior purpose, Frei would be entitled to recover reputational damages and the cost of defending against the suit. Millennium Equity Holdings, LLC v. Mahlowitz, 456 Mass. 627, 645 (2010). We conclude, therefore, there is sufficient evidence in this record to satisfy all three prongs of an abuse of process claim.

2. Sufficiency of the evidence on § 99(Q) violation. We turn now to Frei's contention that the evidence did not support a finding that Johnson is an aggrieved person under § 99(Q).

Section 99(Q), inserted by St. 1968, c. 738, § 1, provides:

"Any aggrieved person whose oral or wire communications were intercepted, disclosed or used except as permitted or authorized by this section ... shall have a civil cause of action against any person who so intercepts, discloses or uses such communications ...."

Further, an "aggrieved person" is defined as "any individual who was a party to an intercepted wire or oral communication." G. L. c. 272, § 99(B)(6). "An interception includes a secret recording." Birbiglia v. Saint Vincent Hosp., Inc., 427 Mass. 80, 86 (1998), citing G. L. c. 272, § 99(B)(4). Here, there is no dispute that Frei, using his cellular telephone, secretly recorded Johnson and the other men on the ice. As such, Johnson meets the plain reading of an "aggrieved person" under the statute and we need not look further. See Reading Co-op. Bank v. Suffolk Constr. Co., 464 Mass. 543, 547 (2013) ("We interpret a statute in accordance with the plain meaning of its text").

3. Johnson's attorney's fees award. Frei challenges the award of attorney's fees to Johnson. As grounds, he reasserts that Johnson is not an "aggrieved person"; and, further, that he is not entitled to recoup monies that the town, and not he, expended. We disagree.

Frei's first challenge fails because, as discussed above, Johnson does meet the definition of an "aggrieved person" under G. L. c. 272, § 99(B)(6). In addition, while we can sympathize with Frei's concern over the town expending funds to represent Johnson, who was sued in his individual capacity, that fact does not bar Johnson's recovery of attorney's fees. See Darmetko v. Boston Hous. Authy., 378 Mass. 758, 764-765 (1979) (attorney's fees awarded even though law students represented the plaintiff for free and could not receive remuneration). Therefore, we perceive no abuse of discretion in the judge's award of attorney's fees to Johnson, which we presume will be recouped by the town.

4. Rule 11(a) sanctions. We also see no merit to Frei's final challenge to the judge's ruling. Here, Frei contends the judge erred in denying a request for sanctions against Johnson's attorney, who, Frei claims, misrepresented the holding in Commonwealth v. Hyde, 434 Mass. 594 (2001), in her opposition to Frei's motion to dismiss. Contrary to Frei's assertion, the attorney did not misapply Hyde. In any event, even if she had, counsel are not infallible. Accordingly, we discern no abuse of discretion in the judge's ruling.

5. Sufficiency of the evidence on MCRA violation. On appeal, Johnson argues that the evidence did not support a finding that he threatened, intimidated, or coerced Frei in violation of the MCRA. See Bally v. Northeastern Univ., 403 Mass. 713, 717 (1989), quoting from G. L. c. 12, § 11H. We disagree. Under the MCRA, threats are "intentional exertion[s] of pressure to make another fearful or apprehensive of injury or harm." Haufler v. Zotos, 446 Mass. 489, 505 (2006), quoting from Planned Parenthood League of Mass., Inc. v. Blake, 417 Mass. 467, 474, cert. denied, 513 U.S. 868 (1994). Here, Johnson angrily approached Frei on several occasions. He told Frei to "cut out that bullshit ... on your blog," and aggressively stood near Frei's car. He then chose to ice fish right outside Frei's home and, according to Frei, attempted to strike Frei when Frei was on the ice. On the totality of the circumstances, the jury could have concluded that Frei reasonably feared that Johnson's aggressive behavior was escalating and threatening, and, therefore, that Frei reasonably feared for his safety. See Commonwealth v. Maiden, 61 Mass. App. Ct. 433, 436 (2004) (a threat exists when "its content in the circumstances ... would cause the target of the threat to fear that the threatened crime or injury might be inflicted").

6. Frei's attorney's fees award. Johnson challenges the judge's award of attorney's fees to Frei on two grounds. He asserts the award is disproportionate to Frei's damages and, further, that Frei's attorney did not provide the judge with sufficient records of the time he spent on the MCRA claim. We disagree.

First, "when a plaintiff's victory, although 'de minimis as to the extent of relief[,] ... represent[s] a significant legal conclusion serving an important public purpose,' the fee award need not be proportionate to the damages recovered." Killeen v. Westban Hotel Venture, LP., 69 Mass. App. Ct. 784, 792 (2007), quoting from Diaz-Rivera v. Rivera-Rodriguez, 377 F.3d 119, 125 (1st Cir. 2004). While Frei's damages award was small, his defense of his right to free speech is not. See Commonwealth v. Lucas, 472 Mass. 387, 388 (2015) (right of free speech is "fundamental" and protected by art. 16 of the Massachusetts Declaration of Rights). Second, the record indicates that the judge carefully and properly analyzed Frei's lawyer's records using the lodestar method, see T. Butera Auburn, LLC v. Williams, 83 Mass. App. Ct. 496, 503 (2013), and awarded an amount within "the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). We discern no abuse of discretion.

Conclusion. So much of the Appellate Division decision and order as affirms the directed verdict on Frei's abuse of process claim is reversed, and the matter is remanded to the District Court for further proceedings consistent with this memorandum and order. In all other respects, the decision and order of the Appellate Division is affirmed.

So ordered.

Reversed in part and remanded; affirmed in part.

      Johnson, however, claims Frei slipped on the ice. The jury, of course, were free to disbelieve Johnson's evidence. See T. Butera Auburn, LLC v. Williams, 83 Mass. App. Ct. 496, 501 (2013).

      Frei also challenges his attorney's fee award, contending his attorney's work on his other claims "was so inextricably intertwined" with his MCRA claim that the judge cannot separate the work. See Ross v. Continental Resources, Inc., 73 Mass. App. Ct. 497, 515 (2009). The judge found that she could separate the work, and, upon our own review of the record, we discern no abuse of discretion.

      Frei's request for appellate attorney's fees pursuant to Mass.R.A.P. 25, as appearing in 376 Mass. 949 (1979), is denied.