text:
    ADOPTION OF MARYANNE (and a companion case ).
    17-P-555
    Appeals Court of Massachusetts.
    Entered: May 1, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Adoption of Sara. The children's names are pseudonyms.

   After trial, a judge of the Juvenile Court found the father unfit to parent his two daughters, Maryanne and Sara, terminated his parental rights, and approved the adoption plan of the Department of Children and Families (department), pursuant to G. L. c. 210, § 3. On appeal, the father contends that (1) the department failed to furnish adequate support services in order to transition the children to his care; (2) the judge failed to consider much of the evidence favorable to him; and (3) the judge placed inappropriate weight on the children's bonds with the foster parents. We affirm.

1. Background. We summarize the relevant facts and procedural history from the judge's findings. Following investigation of reports of neglect, in October, 2011, the department filed a care and protection petition, pursuant to G. L. c. 119, § 24, on behalf of Maryanne (born in August, 2011), and obtained temporary custody of her. While that petition was pending, the mother and the father had another child, Sara, in July, 2012. One day after her birth, the department filed a care and protection petition on behalf of Sara, and was granted temporary emergency custody of her as well. The children were placed with the same foster parents, who are also the preadoptive parents, and with whom they have remained during the course of the proceedings.

In September, 2013, after the two petitions were consolidated, a trial commenced. At the conclusion of trial, the mother and the father stipulated that they were currently unfit and that the children were in need of care and protection. Following a multiday trial in November and December, 2014, the judge found the children in need of care and protection, terminated the mother's parental rights, and, separately, found the father unfit but did not terminate his rights at that time; the judge explained that although the father appeared to not have benefited from the services he received, a determination regarding termination was premature until he completed an evaluation of his parenting skills and psychological functioning.

Two experts conducted assessments of the father before trial resumed in November, 2015. Both testified during this phase of the trial. Based on all of the evidence, the judge concluded that the father remained unfit and that it was in the children's best interests to terminate the father's parental rights. Most notably, he found that the father suffers from lasting anger management issues, has little insight into his extensive history of perpetrating domestic violence, and lacks insight into the children's special needs and their ability to overcome a disruption of their attachment to their foster parents.

2. Termination of parental rights. A decision to terminate parental rights requires a two-step analysis. See G. L. c. 210, § 3 ; Adoption of Nancy, 443 Mass. 512, 515 (2005). First, the judge must find, by clear and convincing evidence, that the parent is unfit and will continue to be unfit into the indefinite future. See Adoption of Jacques, 82 Mass. App. Ct. 601, 606, 610 (2012). Second, the judge must determine whether the termination of parental rights serves the best interests of the children. Id. at 606. The judge's decision will remain undisturbed unless the findings of fact are clearly erroneous or there is a clear error of law or abuse of discretion. Adoption of Ilona, 459 Mass. 53, 59 (2011).

"Parental unfitness must be determined by taking into consideration a parent's character, temperament, conduct, and capacity to provide for the child in the same context with the child's particular needs, affections, and age." Adoption of Mary, 414 Mass. 705, 711 (1993). "Because childhood is fleeting, a parent's unfitness is not temporary if it is reasonably likely to continue for a prolonged or indeterminate period." Adoption of Ilona, 459 Mass. at 60. A "faint hope" that the parent will become fit at some point in the future, without more, will not defeat a finding of continuing unfitness. Id. at 59-60. In making this decision, the judge may properly take into account "prognostic evidence derived from an ongoing pattern of parental neglect or misconduct." Custody of a Minor (No. 1), 377 Mass. 876, 883 (1979).

Here, the judge's detailed findings of fact and conclusions of law clearly and convincingly establish the father's unfitness. The judge properly applied the statutory criteria of G. L. c. 210, § 3(c ), in arriving at this conclusion. The father does not challenge any of the findings of the judge as erroneous, nor does he directly challenge the finding that he remained unfit. Instead, he raises three counter arguments focused on undermining the conclusion that termination was in the children's best interests. We address each.

a. Inadequate support services. The father contends that the department did not do enough to reunite him with his children during the period after the 2014 finding of unfitness, in violation of its duty to "make 'reasonable efforts' aimed at restoring the child to the care of the natural parents" before seeking to terminate parental rights. Adoption of Ilona, 459 Mass. at 60 (quotation omitted). See G. L. c. 119, § 1. Yet, he failed to request such additional support at that time. Compare Adoption of Gregory, 434 Mass. 117, 124 (2001) (where parent opposing termination of rights claims that department violated Americans with Disabilities Act, "parent must raise a claim of inadequate services in a timely manner so that reasonable accommodations may be made"). Additionally, the department's duty to make reasonable efforts is contingent on the parent's fulfilment of his own responsibilities, including service plan compliance. See Adoption of Mario, 43 Mass. App. Ct. 767, 774 (1997) ; Adoption of Eduardo, 57 Mass. App. Ct. 278, 282 (2003). As the judge found here, the father did not utilize the services he was offered on a regular and consistent basis.

Even if the department had failed to meet its obligation of reasonable efforts, however, that would "not preclude the court from making any appropriate order conducive to the child's best interest." Adoption of Ilona, 459 Mass. at 61, quoting from G. L. c. 119, § 29C. While courts protect the rights of parents, "the parents' rights are secondary to the child's best interests and ... the proper focus of termination proceedings is the welfare of the child." Adoption of Gregory, 434 Mass. at 121. See Adoption of Inez, 428 Mass. 717, 720 (1999), quoting from Care & Protection of Robert, 408 Mass. 52, 62 (1990) ("While parents have a constitutionally recognized interest in maintaining the family unit, a 'child's interest in freedom from neglect or abuse is absolute' "). Thus, the father's reasonable efforts argument fails to undermine the judge's best interests finding.

b. Consideration of father's efforts. The father next contends that the judge's decision to terminate his parental rights was unsupported because the judge inappropriately ignored evidence proving that he had benefited from the services he received. Contrary to this assertion, the judge specifically considered that the father completed anger management classes and domestic violence programs, participated in an autism support group, was participating in individual counseling, and attended all visits with the children. However, the judge also considered that the father continues to lack insight into his parenting deficiencies, has minimized his domestic violence and anger issues, and has demonstrated an inability to consistently cooperate with service providers and the department or sustain meaningful improvements. Although the father relies on the testimony of his own expert concerning his progress, the judge was entitled to rely on the competing expert. See Custody of Two Minors, 396 Mass. 610, 618 (1986).

While the father is to be lauded for the positive steps he has taken to improve his situation, good intentions are not alone sufficient indicia of ability adequately to care for children. See Care & Protection of Three Minors, 392 Mass. 704, 712 (1984). Indeed, "[e]ven where a parent has participated in programs and services and demonstrated some improvement, we rely on the trial judge to weigh the evidence in order to determine whether there is a sufficient likelihood that the parent's unfitness is temporary." Adoption of Ilona, 459 Mass. at 59-60. The judge's finding that the father's unfitness was not temporary was adequately supported in the record.

c. Children's attachment to the foster parents. The judge found that the children "have formed a secure primary attachment to" the foster parents, but "have little attachment to the father." The father argues that the judge's conclusion that the children "have formed a very strong bond with" the foster parents did not comport with the applicable law regarding bonding as a basis to terminate his parental rights. See G. L. c. 210, § 3(c)(vii). He argues that the judge instead impermissibly compared which caretaker might be better for the children. In determining whether to terminate a parent's rights, a trial judge must consider the best interests of each of the children individually. See Petitions of the Dept. of Social Servs. to Dispense with Consent to Adoption, 20 Mass. App. Ct. 689, 697 (1985). A child's "special needs are relevant because they bear on whether this particular [father] ... can be a fit parent to this particular child." Adoption of Abigail, 23 Mass. App. Ct. 191, 193 (1986).

Here, the judge found that the father had no understanding of the children's psychological and emotional needs. Since birth, Sara's condition has been medically complex, requiring early intervention services. Maryanne requires special services for autism and speech delays. From all that appears in the record, both children will continue to require constant medical monitoring and special care, and the judge found that a bond has formed between the children and the foster family, who have demonstrated a high degree of commitment to the children's special needs.

Although a child's bond with his or her foster parents cannot be the sole basis for a decision to terminate parental rights, the existence of such a bond may be given weight when there is other evidence of parental unfitness, as is true in the instant case. See Adoption of Frederick, 405 Mass. 1, 7 (1989) ; Adoption of Rhona, 63 Mass. App. Ct. 117, 127 n.10 (2005). Given the father's weaknesses in identifying and responding to the children's emotional needs, it was not error for the judge to conclude that the father "lack[ed] the capacity to meet the special needs of the child[ren] upon removal" from the care of their foster parents. See G. L. c. 210, § 3(c )(vii), as amended by St. 1999, c. 3, § 17. There was no error in the judge's consideration of the children's bond with the foster parents.

Decrees affirmed.

      The mother did not appeal from the termination of her parental rights.

      He does briefly argue that the "evidence supporting the judge's finding of unfitness is stale" because it is based on the "circumstances that necessitated the filing of the Petition and not on his parenting ability at the time of the trial." Yet, the judge made nearly 100 findings that deal directly with the father's status as of the November, 2015, trial.


source: Caselaw Access Project

license: Public Domain

text:
    Anne LANGLAIS v. Robert HILDEBRAND.
    17-P-1004
    Appeals Court of Massachusetts.
    Entered: May 1, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a motor vehicle accident, the plaintiff sued the defendant for negligence, seeking damages for medical expenses and pain and suffering. The jury returned a verdict for the plaintiff and awarded her damages in the amount of $17,226. Claiming that this award was greatly disproportionate to her medical expenses, the plaintiff moved for additur or a new trial on damages. The judge denied the motion, and the plaintiff appeals from both the judgment and the posttrial order.

We note at the outset that the plaintiff has failed to provide a record appendix that is adequate for appellate review. "It is the obligation of the appellant[ ] to include in the appendix those [materials that] are essential for review of the issues raised on appeal ...." Shawmut Community Bank, N.A. v. Zagami, 30 Mass. App. Ct. 371, 372-373 (1991), S.C., 411 Mass. 807 (1992). The crux of the plaintiff's appeal is that the jury's award cannot be reconciled with her medical records and bills, yet she did not include any of those records and bills in the appendix. Her appeal fails for this reason alone. See Cameron v. Carelli, 39 Mass. App. Ct. 81, 84 (1995).

In any event, the record materials we do have demonstrate that the judge did not abuse her discretion in denying the plaintiff's motion. See Baudanza v. Comcast of Mass. I, Inc., 454 Mass. 622, 630 (2009), quoting from Blake v. Commissioner of Correction, 403 Mass. 764, 771 (1989) (whether to allow motion for additur or new trial on damages "rests in the sound discretion of the judge"). The defendant argued to the jury that the plaintiff was not entitled to the full amount of damages she claimed. A reasonable juror could have accepted any of the reasons the defendant offered in support, including lack of causation between the accident and some of the plaintiff's medical symptoms. This is not the "extraordinary" case where the jury's award was so inadequate as to warrant reversal. Magaw v. Massachusetts Bay Transp. Authy., 21 Mass. App. Ct. 129, 139 (1985).

Judgment affirmed.

Order denying motion for additur or new trial on damages affirmed.

      The judge later allowed the defendant's motion to reduce the award by $8,000 to offset the personal injury protection benefits received by the plaintiff. The plaintiff raises no claim of error as to this ruling.


text:
    COMMONWEALTH v. Jose L. MERCADO.
    17-P-167
    Appeals Court of Massachusetts.
    Entered: May 7, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury trial, the defendant was convicted of three counts of armed robbery and one count of assault by means of a dangerous weapon. He challenges the judge's denial of his motion to suppress his initial stop and, for the first time, asserts that the show-up identification procedure police used was improper and should have been suppressed. We affirm.

Background. The judge credited the testimony of each testifying police officer in its entirety, specifically noting certain pertinent facts. We summarize the facts found by the motion judge, which are consistent with the evidence presented at trial. The defendant was one of three men suspected in the robbery of four Northeastern University students near the Ruggles Massachusetts Bay Transportation Authority (MBTA) station in the Roxbury section of Boston. One victim of the robbery called police and said that three men threatened him and his companions with a gun and at one point fired a bullet at the ground, prompting the victims to surrender their property. He described the three men as follows: the man with the gun was a black man wearing a black hoodie and blue jeans; the second assailant was a heavyset Hispanic man wearing a black hoodie and a black Colorado Rockies hat; and the third man was either black or Hispanic and the victim did not remember his clothing.

The victim's description of the assailants was dispatched over the radio. Because the Boston police department's "ShotSpotter" system signaled that shots had been fired, police were already responding to the area. Officer Malik Morgan of the Boston housing police arrived at the Alice Taylor housing project, located in the immediate vicinity of the Ruggles station, within approximately five minutes of the initial report of a gunshot. Officer Morgan observed the defendant and two other men matching the victim's description of the assailants exit a residence approximately one minute after his arrival. Specifically, the officer observed the defendant to be a heavyset Hispanic man wearing a black hoodie and a black Colorado Rockies hat. Officer Morgan ordered the men to stay where they were; they did not comply and instead hurriedly retreated into the residence. Officer Morgan approached and knocked on the door for several minutes with no response. Sergeant John Doris of the Boston police department next arrived at the scene and was flagged down by Officer Morgan. Sergeant Doris also began to knock on the door, which eventually was opened by the mother of one of the three suspects, who lived there, and allowed the officers to enter the apartment. Sergeant Doris concluded that the three men, including the defendant, matched the victim's description and they became combative and uncooperative as Sergeant Doris spoke with them. As they continued to put their hands in their pockets despite Segeant Doris's requests for them to keep their hands visible, the officer requested backup.

The three men were handcuffed and frisked, and the apartment was searched for other people. After a shell casing was recovered close to the site of the robbery, Sergeant Doris arranged for three of the victims to be brought to the area for a show-up identification. The identification procedure took place approximately twenty minutes after the officers responded, at which time two of the victims positively identified the defendant, who was then placed under arrest.

On appeal, the defendant asserts that his motion to suppress should have been allowed because Officer Morgan lacked reasonable suspicion to order the defendant and the other two men to stop. He further contends that the show-up identification procedure was unreliable and unduly suggestive.

Discussion. "In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact unless they are clearly erroneous but independently review the judge's ultimate findings and conclusions of law." Commonwealth v. Depiero, 473 Mass. 450, 453 (2016), quoting from Commonwealth v. Anderson, 461 Mass. 616, 619, cert. denied, 568 U.S. 946 (2012). As the defendant failed to challenge the show-up identification until now, we review to determine whether it was error for the judge to admit evidence from the show-up identification and, if so, "whether the error created a substantial risk of a miscarriage of justice." Commonwealth v. Kelly, 470 Mass. 682, 697 (2015).

We first conclude that the judge did not err in denying the defendant's motion to suppress. The defendant maintains that Officer Morgan lacked the requisite reasonable suspicion that the defendant had committed a crime when he ordered him to stop and that all evidence obtained after that order should be suppressed. Reasonable suspicion must be "based on specific, articulable facts and reasonable inferences therefrom." Commonwealth v. Pinto, 476 Mass. 361, 363-364 (2017). "To make an investigatory stop based solely on a physical description, the description need not be so particularized as to fit only a single person, but it cannot be so general that it would include a large number of people in the area where the stop occurs." Commonwealth v. Depina, 456 Mass. 238, 245-246 (2010).

Having discerned no clear error in the judge's findings of fact, we confine our analysis to those facts. As a result, we conclude that Officer Morgan had reasonable suspicion to order the defendant to stop. The defendant and his two companions matched the description offered by a victim of the robbery that was relayed to Officer Morgan. Although general, vague descriptions will not give rise to reasonable suspicion, particularized details can provide sufficient grounds. Compare Commonwealth v. Lopes, 455 Mass. 147, 157-158 (2009) (description of brown van with tinted windows and Cape Verdean flag in back was sufficiently particularized), with Commonwealth v. Cheek, 413 Mass. 492, 496 (1992) (description of suspect as "black male with black [three-quarter] length goose" jacket insufficient). The description of one assailant as a heavyset Hispanic male wearing a black hoodie and a black Colorado Rockies hat was particular enough to justify the officer's order that the defendant stop. Furthermore, the stop was supported by other factors: the temporal and physical proximity to the scene of the crime, the seriousness of the crime being investigated, and the defendant being with two other men matching the victim's description of the other suspects. See Depina, supra at 246-247. The judge's denial of the motion to suppress was proper.

Similarly, we conclude there was no substantial risk of a miscarriage of justice stemming from the show-up identification. A finding of a substantial risk of a miscarriage of justice occurs when an error leaves us "with a serious doubt that the defendant['s] guilt had been fairly adjudicated." Commonwealth v. Amirault, 424 Mass. 618, 647 (1997). Show-up identifications, which are essentially one-on-one identification procedures, are generally disfavored by the law because they are, to some extent, "inherently suggestive." Commonwealth v. Figueroa, 468 Mass. 204, 217 (2014). However, a show-up identification only violates due process "where the defendant proves by a preponderance of the evidence that it is 'unnecessarily suggestive' " (emphasis omitted). Ibid., quoting from Commonwealth v. Phillips, 452 Mass. 617, 627-628 (2008). The use of a show-up identification must be justified by good reason, with one such reason being concern for public safety following a violent crime. See Commonwealth v. Martin, 447 Mass. 274, 279 (2006) ; Phillips, supra at 629. In the present case, officers recognized the defendant and his companions as matching the description of the assailants, and there was an ongoing concern about an armed assailant who had just fired a gun in a densely populated area near a busy MBTA station. As this is one type of situation contemplated to justify the use of a show-up identification, we discern no error and therefore no substantial risk of a miscarriage of justice.

Judgments affirmed.

      The judge began his written findings of fact with the following: "The [c]ourt heard testimony by Boston [h]ousing [p]olice Officer Malik Morgan and Boston [p]olice Sergeant John Doris at an evidentiary hearing held on November 24, 2015. The [c]ourt finds that [Officer] Morgan and [Sergeant] Doris were credible and credits all of their testimony."

      A ShotSpotter is an automated acoustic device used by the Boston police department to detect and locate gunshots.

      The identification procedure was undertaken after a warrant was obtained and the apartment was searched. Among other things, the search yielded property of the victims and a Colorado Rockies hat. During the show-up, the hat was worn by another suspect, not the defendant, and the defendant was positively identified nonetheless.


text:
    Daniel CRAIG v. CONSERVATION COMMISSION OF MATTAPOISETT & others.
    17-P-269
    Appeals Court of Massachusetts.
    Entered: May 1, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Buzzards Bay Coalition, Inc., and twelve additional citizens, interveners.

   Daniel Craig appeals from a judgment issued by a judge of the Superior Court allowing the defendants' motions for judgment on the pleadings and upholding an enforcement order issued on September 14, 2015, by the conservation commission of Mattapoisett (commission). Substantially for the reasons stated by the judge, we affirm.

Background. Craig's property is in the area of Eel Pond and contains salt marsh and a buffer zone to salt marsh as defined in the Wetlands Protection Act (act), G. L. c. 131, § 40, and 310 Code Mass. Regs. § 10.00 et seq. (2014). The subdivision in which Craig's property lies was developed subject to an order of conditions issued by the commission on June 12, 2000, which, among other things, restricted lawn size to a total of 10,000 square feet per lot and established a seventy-five foot "no disturbance" zone for certain lots, including Craig's lot, "in perpetuity." Craig's home was constructed subject to an additional order of conditions issued on August 28, 2000, and amended in December of 2004, which contained the same restrictions in perpetuity. Craig's home was constructed in compliance with the orders of condition. A certificate of compliance issued with respect to the June 12, 2000, order of conditions on May 23, 2006. A certificate of compliance with respect to the order of conditions as amended in December, 2004, issued on August 17, 2006.

In 2012, Craig and his wife (the Craigs) requested a determination of applicability for work on the property including construction of a pool, concrete apron, pool perimeter fence, and outdoor cooking area within land subject to coastal storm flooding. The commission issued a negative determination of applicability, and the work was allowed to proceed without an order of conditions from the commission.

In 2014, however, the commission learned that Craig had planted lawn and other landscaping that violated the act as well as the orders of condition issued in 2000. The commission notified Craig and met with him and/or his representative. Craig submitted an after-the-fact notice of intent which proposed substantial restoration but retained a portion of the lawn within the buffer zone. After negotiations regarding appropriate restoration failed, Craig withdrew his after-the-fact notice of intent without prejudice on July 27, 2015. On September 14, 2015, the commission issued an enforcement order, finding that Craig had cleared land of native vegetation and placed loam and sod within (a) a wetland resource area, (b) the 100-foot buffer to a resource area, and (c) land subject to coastal storm flowage, without filing a notice of intent or receiving a negative determination of applicability from the commission, in violation of the act and 310 Code Mass. Regs. § 10.00 (2014). The commission ordered Craig to return the property to the conditions approved on August 17, 2006, when the commission issued a certificate of compliance. The commission provided nearly three pages of instructions and special orders describing the required remediation.

Craig appealed by filing an action in the nature of certiorari, see G. L. c. 249, § 4, in the Superior Court, and he also sought a declaratory judgment that the conditions contained in the 2000 and 2004 orders of conditions expired after certificates of compliance were recorded. The parties submitted cross motions for judgment on the pleadings, Mass.R.Civ.P. 12(c), 365 Mass. 754 (1974), and a judge allowed the commission's and the interveners' motions.

Discussion. An "enforcement order is not the product of an adjudicatory proceeding involving the presentation of evidence. Rather, the order constitutes discretionary action by the commission pursuant to its undisputed authority to enforce the act within the town." Garrity v. Conservation Commn. of Hingham, 462 Mass. 779, 792 (2012). "Accordingly, our task is not to determine whether the record contains substantial evidence to support the commission's action but, rather, to decide whether the commission exercised its discretion arbitrarily and capriciously." Ibid. The plaintiff bears the burden of proof that the commission acted arbitrarily and capriciously. Ibid."A decision is not arbitrary and capricious unless there is no ground which 'reasonable men might deem proper' to support it." T.D.J. Dev. Corp. v. Conservation Commn. of N. Andover, 36 Mass. App. Ct. 124, 128 (1994), quoting from Cotter v. Chelsea, 329 Mass. 314, 318 (1952). We review the administrative record without giving the view of the Superior Court judge any special weight. Fieldstone Meadows Dev. Corp. v. Conservation Commn. of N. Andover, 62 Mass. App. Ct. 265, 267 (2004).

Other than minor activities, any activity in the buffer zone which, in the judgment of the issuing authority, will alter an area subject to protection under the act, is subject to regulation and requires the filing of a notice of intent. 310 Code Mass. Regs. § 10.02(b) (2014). On appeal, Craig does not deny that he has altered wetlands, the buffer zone, and land subject to coastal storm flowage by installing a lawn and other landscaping without filing a notice of intent. The act authorizes a conservation commission to issue enforcement orders directing compliance with the act and specifically allows a commission to order "[a]ny person who violates the provisions of this section [ § 40 ] ... to restore property to its original condition." G. L. c. 131, § 40. The commission, therefore, was well within its authority in ordering Craig to restore the property to its original condition.

On appeal, Craig first argues that the commission's order is vague, ambiguous, and inconsistent because it requires him to restore the property to conditions existing on August 17, 2006, when the commission issued a certificate of compliance, but then it partially relies on a 2015 site plan prepared for the Craigs that, he contends, contains a different wetlands delineation than existed on August 17, 2006. Craig argues that the enforcement order does not incorporate a plan, and he cannot possibly comply with such a vague order. His argument is unavailing. The enforcement order provides that "[t]he area seaward of the 100 foot buffer zone as delineated by the purple line on the attached memorandum provided by the Buzzards Bay National Estuary Program dated September 14, 2015 ... must be remediated according to" specific, detailed criteria which contain references to specific plans as needed. It is clear that the commission has determined that remediation according to the detailed enforcement order incorporating the Buzzards Bay National Estuary Program memorandum and designated portions of a 2015 site plan submitted in support of Craig's after-the-fact notice of intent, is sufficient to satisfy the commission that the property will be adequately returned to conditions existing on August 17, 2006. We discern no ambiguity or vagueness in the enforcement order.

Next, Craig claims the commission's enforcement order is a "pretext" to "improperly revive" extinguished conditions contained in the 2000 and 2004 orders of conditions. The short answer to this argument is that if Craig did not want to give the commission an opportunity to order the property returned to its original condition, he should have filed a notice of intent and obtained an order of conditions before he installed over 20,000 square feet of lawn in areas subject to protection. That the commission's authority under the act to order the property returned to its original condition when a property owner disturbs protected lands without filing a notice of intent, and its authority under what Craig insists are extinguished conditions, overlap does not mean there was a nefarious scheme to enforce allegedly expired conditions. Regardless of what may have been discussed at meetings where Craig and the commission negotiated to come to an agreement on the scope of remediation, the commission did not in its enforcement order rely on the conditions contained in the 2000 and 2004 orders of condition. The commission was not required to forego its authority under the act. The commission's order to return the property to its original condition was authorized by the act.

Finally, Craig sought a declaratory judgment that the conditions contained in the 2000 and 2004 orders of condition are nonexistent. Citing 310 Code Mass. Regs. § 10.05(9)(e) (2014), Craig contends that once certificate of compliance issued, the orders of condition expired and were no longer applicable to the property even though the orders of conditions state that they apply to the property in perpetuity. The judge concluded that because the commission issued the enforcement order pursuant to the act and not pursuant to the conditions contained in the 2000 and 2004 orders of condition, there was no live controversy before him. On appeal, Craig simply argues the merits of his declaratory judgment count but does not refute the judge's conclusion that there was no justiciable controversy before him. Craig thereby waived the argument.

We have considered whether we should exercise our discretion to comment on the status of the "perpetual" restrictions contained in the 2000 and 2004 orders of conditions where they were not restated in the certificates of compliance. See Silva v. Attleboro, 454 Mass. 165, 167 n.4 (2009). They strike us as different from the affirmative "maintenance" and "monitoring" conditions specifically required to be noted on a certificate of compliance. We note, however, that the wetlands legislative and regulatory schemes require conservation commissions to conduct the initial review on issues bearing on wetlands regulation "for the familiar purpose of bringing local knowledge to bear on local conditions and reducing the administrative burden on the department [of environmental protection]." Garrity, 462 Mass. at 786, quoting from Hamilton v. Conservation Commn. of Orleans, 12 Mass. App. Ct. 359, 368 (1981). How a local commission has interpreted the regulation would have bearing on the issue. The deference we owe to a commission's interpretation of a regulation within its charge prevents us from interfering unless it is shown to be "arbitrary or capricious," or "supported by no ground which reasonable men might deem proper to support it," or "is devoid of any conceivable ground upon which [the action] may be upheld," or is "impossible by any reasonable construction [to] be interpreted in harmony with the legislative mandate." Conservation Commn. of Falmouth v. Pacheco, 49 Mass. App. Ct. 737, 739 n.3 (2000) (quotations omitted). We conclude that if the issue of the enforceability of the restrictions contained in the 2000 and 2004 orders of condition arises again in the future, the commission should undertake the initial review of the issue. We therefore decline to comment.

Judgment affirmed.

      Craig makes a one-line argument in his brief that construction of a lawn is "de minimis" action and is a permissible use under the "minor activity" provisions in 310 Code Mass. Regs. § 10.02(2)(b) (2014). It is Craig's burden to prove that his conduct did not violate the act, and his argument falls far short of carrying that burden. See Garrity, 462 Mass. at 795 (in absence of evidence that work qualifies as "minor activity," homeowner failed to prove commission acted arbitrarily and capriciously in determining order of conditions was required for work).

      Craig does not argue that in any particular respect the commission exceed its authority under the act, but instead contends that the commission was impermissibly reviving extinguished conditions.

      Section 10.05(9)(a) of 310 Code Mass. Regs. provides that certificates of compliance stating that the work has been satisfactorily completed shall be issued upon request. Section 10.05(9)(e) provides that "[i]f the final order contains conditions which continue past the completion of the work, such as maintenance or monitoring, the Certificate of Compliance shall specify which, if any, of such conditions shall continue."


text:
    Lisa C. PAZOL & others v. TOUGH MUDDER INCORPORATED.
    17-P-653
    Appeals Court of Massachusetts.
    Entered: May 7, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Maria C. Newman, Lisa Russ, and Audrey J. Bennett. The plaintiffs sued on behalf of themselves and others similarly situated.

   The plaintiffs appeal from the Superior Court judgment dismissing their complaint against Tough Mudder Incorporated (Tough Mudder), alleging that the judge erred in allowing Tough Mudder's motion to dismiss and to compel arbitration. The plaintiffs claim that the arbitration provision contained in the parties' agreement is unenforceable and that the agreement itself is an unenforceable contract. We affirm.

Background. The record reflects the following facts. Tough Mudder is a company that organizes athletic endurance events consisting of mud-filled obstacle courses designed to test participants' physical and mental strength. In 2014, Tough Mudder advertised a "Mudderella Boston" event scheduled to take place in Haverhill on September 6. The plaintiffs are all Massachusetts residents who used Tough Mudder's online Web site to sign up for the event and to pay the registration fee. When registering for the event, Tough Mudder presented each plaintiff with a "participant assumption of risk, waiver of liability, and indemnification agreement" (agreement) on the Web site in a scroll box displaying a portion of its text; scrolling through the box allowed registrants to read the full text of the agreement. A check box beneath the scroll box declared "I agree to the above waiver." In order to register for the event, the plaintiffs needed to check this box.

Prior to the date of the event, officials in Haverhill declined Tough Mudder's request for a permit. Tough Mudder immediately moved the event to nearby Amesbury. However, just a few days before the event, Tough Mudder learned that Amesbury could no longer serve as host. Tough Mudder then secured a third, out-of-State location for the event in Westbrook, Maine, approximately eighty miles from the original Haverhill location. Due to this increased distance, the plaintiffs were unable to attend the event.

Subsequently, the plaintiffs filed a complaint in the Superior Court, alleging breach of contract, breach of the implied covenant of good faith and fair dealing, and unjust enrichment. They also claimed that Tough Mudder's policy of refusing refunds for any reason violated the Massachusetts Consumer Protection Act, G. L. c. 93A. The plaintiffs also presented class action allegations. After removing the case to Federal court, where it was later remanded back to the Superior Court, Tough Mudder moved to dismiss or to stay and to compel arbitration. Following a hearing, the judge allowed the motion. In dismissing the plaintiffs' complaint, the judge adopted Tough Mudder's arguments and ruled that the plaintiffs' allegations "are plainly subject to the [a]rbitration agreement provisions of the parties' contracts and must be mediated first, and then, if unsuccessful, arbitrated."

Discussion. In assessing Tough Mudder's motion to compel arbitration, which is properly treated as one for summary judgment, we must determine whether the parties agreed to submit the dispute to arbitration. Miller v. Cotter, 448 Mass. 671, 676 (2007). See G. L. c. 251, § 2(a ). As such, we review a grant of summary judgment de novo, construing all facts in favor of the nonmoving party. Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).

1. Statutory framework. The Uniform Arbitration Act, set forth in G. L. c. 251, §§ 1 et seq. (the act), "express[es] a strong public policy favoring arbitration as an expeditious alternative to litigation for settling commercial disputes." Home Gas Corp. of Mass., Inc. v. Walter's of Hadley, Inc., 403 Mass. 772, 774 (1989), quoting from Danvers v. Wexler Constr. Co., 12 Mass. App. Ct. 160, 163 (1981). The act provides in part:

"A written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties shall be valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract."

G. L. c. 251, § 1, inserted by St. 1960, c. 374, § 1. The act also allows for proceedings in the Superior Court to compel arbitration in accordance with the terms of an arbitration agreement, and permits an interlocutory appeal from an order denying an application to compel arbitration. See G. L. c. 251, §§ 2, 18.

Under both State and Federal law, it is clear that parties to an agreement can agree to arbitrate claims and disputes that might arise between them. See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26-27 (1991) ; Warfield v. Beth Israel Deaconess Med. Center, Inc., 454 Mass. 390, 395-396 (2009). As noted supra, § 2 of the act provides that a party aggrieved by another's refusal to arbitrate a dispute where a written agreement between the parties requires arbitration may apply to the Superior Court for an order directing that such a procedure take place. G. L. c. 251, § 2. The act also provides an opposing party who questions the existence of a valid agreement to arbitrate to have the issue addressed by a judge, with the proviso that such a determination as to the agreement's validity be decided summarily. G. L. c. 251, § 2(a ). See St. Fleur v. WPI Cable Sys./Mutron, 450 Mass. 345, 353 (2008).

2. Scope of our review. Courts have a very limited role in matters involving arbitration. When a motion to compel arbitration is met with the argument that the entire agreement is unenforceable, our only task is to determine whether the arbitration provision itself is enforceable. See Quirk v. Data Terminal Sys., Inc., 379 Mass. 762, 766 (1980) ("We think it is clear that the Legislature intended, by the language of § 1 [of the act], that the arbitration provision be unenforceable only when the arbitration provision itself [and not the contract as a whole] is revoked 'upon such grounds as exist ... for the revocation of any contract' "). If we determine that the arbitration provision is enforceable, then questions surrounding the formation of the agreement itself, such as whether the consideration offered was illusory, or questions about other specific provisions, are left to the arbitrator. Id. at 766-768. See Barnstead v. Ridder, 39 Mass. App. Ct. 934, 936 (1996) (once judge determines matter should be arbitrated, questions regarding interpretation of agreement left for arbitrator).

Thus, to determine whether the arbitration provision is enforceable, we must examine its language independent of the rest of the agreement. Notwithstanding the strong public policy favoring arbitration that underlies the act, see Home Gas Corp. of Mass., Inc., 403 Mass. at 774, it remains available to the party opposing arbitration to assert traditional grounds that would permit the voiding of a contract, such as fraud, duress, and unconscionability, in arguing that the motion to compel arbitration should be denied. See St. Fleur, supra at 350, citing Doctor's Assocs., Inc. v. Casarotto, 517 U.S. 681, 687 (1996). Here, the plaintiffs allege that the arbitration provision is unconscionable.

a. Unconscionability. The plaintiffs allege that the arbitration provision is unconscionable for a number of reasons. They claim that the arbitration clause is not conspicuous, as it is "not highlighted and is obscurely embedded deep in the [a]greement" such that it creates "unfair surprise" to registrants. The plaintiffs also argue that certain terms within the provision are vague or undefined, which they again claim constitute "unfair surprise."

Historically, courts considered a contract unconscionable if it was "such as no man in his senses and not under delusion would make on the one hand, and as no honest and fair man would accept on the other." Hume v. United States, 132 U.S. 406, 411 (1889), quoting from Earl of Chesterfield v. Janssen, 28 Eng. Rep. 82, 100 (Ch. 1750). Later, "a contract was determined unenforceable because unconscionable when 'the sum total of its provisions drives too hard a bargain for a court of conscience to assist.' " Waters v. Min Ltd., 412 Mass. 64, 66 (1992), quoting from Covich v. Chambers, 8 Mass. App. Ct. 740, 750 n.13 (1979). "The determination that a contract or term is or is not unconscionable is made in the light of its setting, purpose and effect." Miller, 448 Mass. at 679, citing Restatement (Second) of Contracts § 208 comment a (1981). "Because there is no clear, all-purpose definition of 'unconscionable,' nor could there be, unconscionability must be determined on a case by case basis ..., giving particular attention to whether, at the time of the execution of the agreement, the contract provision could result in unfair surprise and was oppressive to the allegedly disadvantaged party." Zapatha v. Dairy Mart, Inc., 381 Mass. 284, 292-293 (1980). Considering the setting, purpose, and effect of the arbitration provision here, we conclude that it was not unconscionable.

Nothing in the setting of its execution suggests that the arbitration provision was procedurally unconscionable. The entire agreement is preceded by a conspicuous, clearly-worded, all-caps header stating: "PARTICIPANTS: READ THIS DOCUMENT CAREFULLY BEFORE SIGNING. THIS DOCUMENT HAS LEGAL CONSEQUENCES AND WILL AFFECT YOUR LEGAL RIGHTS AND WILL ELIMINATE YOUR ABILITY TO BRING FUTURE LEGAL ACTIONS." The arbitration provision is titled "Mediation and Arbitration," appears on the fourth page of the seven-page agreement, and is written in what appears to be the same size and font as the rest of the agreement. The provision itself is only one paragraph long and uses fairly clear language. There is nothing in the record suggesting that the plaintiffs were under pressure to read the agreement quickly or to not read it at all. The agreement also required an affirmative response from the plaintiffs by clicking the "I accept" button. See Ajemian v. Yahoo!, Inc., 83 Mass. App. Ct. 565, 576 (2013). These factors all weigh against a finding of unfair surprise or oppressive formation. See Swift v. Zynga Game Network, Inc., 805 F. Supp. 2d 904, 911-912 (N.D. Cal. 2011) (granting motion to compel arbitration where plaintiff had opportunity to review terms of service via hyperlink and clicked "I accept" button).

Similarly, nothing in the terms of the arbitration provision-its purpose and effect-suggests that it was substantively unconscionable. The purpose of submitting disputes to binding arbitration is heavily favored by statute and by case law. See G. L. c. 251, § 1 ; Home Gas Corp. of Mass., Inc., 403 Mass. at 774. The agreement was bilateral in that either party could invoke its provisions. All rights and remedies available in the courts were preserved for the arbitrator. On this record, there is no viable claim of unconscionability in the arbitration provision.

b. Scope of provision. Finally, the plaintiffs argue that even if the arbitration provision is enforceable, their claims against Tough Mudder do not require arbitration because they do not fall within the scope of that provision. Specifically, they argue that the language in the agreement requiring that "all disputes, controversies, or claims arising out of my participation in the Mudderella event shall be submitted to binding arbitration" does not apply to them, because the plaintiffs never participated in the event.

Under the terms of the arbitration provision, the plaintiffs agreed that "[i]n the event of a legal issue, [they] agree to engage in good faith efforts to mediate any dispute that might arise" and that should mediation fail, "all disputes, controversies, or claims arising out of [their] participation" in the event should be submitted to arbitration. This language is somewhat unclear, because it first requires the parties to mediate "any dispute that might arise," but if mediation fails, to submit to arbitration all "disputes, controversies, or claims arising out of [their] participation" in the event. However, the Commonwealth's policy in favor of arbitration generally instructs us that where, as here, a contract has an arbitration provision that is broad in its reach, there is a rebuttable presumption that a contract dispute is covered by the provision, and doubts whether a particular dispute comes within the scope of the provision should be resolved in favor of arbitration. See Drywall Sys., Inc. v. ZVI Constr. Co., 435 Mass. 664, 666 (2002). See also Commonwealth v. Philip Morris Inc., 448 Mass. 836, 843-844 (2007). "In a number of contexts, we have construed the phrase 'arising out of' and similar phrases (e.g., 'connected to' or 'relating to') in an arbitration clause as constituting 'broad' language that invokes the FAA's [and the act's] presumption in favor of arbitration." Warfield, 454 Mass. at 396-397. As such, we are persuaded that the claims raised in the plaintiffs' complaint fall within the scope of the arbitration provision. See Massachusetts Coalition of Police, Local 165, AFL-CIO v. Northborough, 416 Mass. 252, 256 (1993) ( [A]bsent "positive assurance" that arbitration provision does not cover instant dispute, motion to compel arbitration should not be denied [citation omitted] ).

Conclusion. Because we conclude that the agreement contains an enforceable provision requiring the parties to submit legal disputes to arbitration, and that this case falls within the scope of that provision, the judge properly dismissed the plaintiffs' complaint. As to the plaintiffs' remaining claims, they are for the arbitrator to decide.

Judgment affirmed.

      The first amended complaint also named Tough Mudder, LLC, and BK Bridge Events, LLC, as defendants. These two entities have since merged into Tough Mudder and are no longer in existence.

      According to the affidavit of Tough Mudder's vice-president of event production, approximately 11,300 individuals registered for the Mudderella Boston event, paying a total of $1,065,040.35 in nonrefundable registration fees. Of those 11,300 individuals, 6,960, representing $617,574.86 in registration fees retained by Tough Mudder, did not attend the event in Maine.

      Congress adopted a similar statute, the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. Its language is remarkably similar to that of the Massachusetts act: "[A]n agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2.

      We also reject the plaintiffs' claim that the arbitration provision lacks mutual consideration. This is clearly not so. Each party waived its right to judicial process and gained the right to invoke arbitration. This reciprocal exchange of benefit and detriment constitutes consideration. Marine Contractors Co. v. Hurley, 365 Mass. 280, 286 (1974), citing Williston, Contracts § 102 (3d ed. 1957) ("The requirement of consideration is satisfied if there is either a benefit to the promisor or a detriment to the promisee").

      See, e.g., Drywall Sys., Inc., supra at 666-667 (construction subcontracts between general contractor and subcontractor providing for arbitration of claims "arising out of or relative to" subcontracts required arbitration of all parties' construction project claims, including claim under G. L. c. 93A); Philip Morris Inc., supra at 844 (settlement agreement between Commonwealth and tobacco companies providing for arbitration of disputes "arising out of" or "relating to" calculation of companies' annual payments required arbitration of claim).

      In light of our decision, we deny the plaintiffs' request pursuant to c. 93A for appellate attorney's fees.


text:
    Robert A. ROTHSTEIN v. CONTRIBUTORY RETIREMENT APPEAL BOARD & another.
    17-P-170
    Appeals Court of Massachusetts.
    Entered: May 4, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      State Board of Retirement.

   The plaintiff, Robert Rothstein, appeals from a Superior Court judgment affirming a decision of the defendant Contributory Retirement Appeal Board (CRAB), which denied Rothstein's request to revoke his election to discontinue contributions to the State retirement system after he turned seventy years old. Rothstein's principal claim on appeal is that CRAB erred because the defendant State Board of Retirement (board) failed to provide 180 days' notice of his right to elect as required by statute. Concluding that Rothstein has failed to show prejudice resulting from the notice he received, we affirm.

Background. 1. The election statute. Pursuant to G. L. c. 32, § 90G ¾, inserted by St. 1990, c. 254, § 3, members of the State retirement system (system) working past age seventy had two options: (1) to discontinue contributions to the system at age seventy, or (2) to continue contributions through payroll deductions. If a member elected to continue contributions, the additional time served and any increase in regular compensation would be considered in the calculation of the member's retirement benefit. If a member elected to discontinue contributions, his retirement benefit would be calculated using only his service and compensation prior to age seventy.

The statute required the board to notify members of this election requirement between their sixty-ninth birthday and 180 days before their seventieth birthday. The member could make the election at any time between their sixty-ninth birthday and sixty days before their seventieth birthday. The statute further provided that the election, once made, "may not be revoked." Ibid.

2. Rothstein's election and appeal. The relevant facts are not in dispute. Rothstein's seventieth birthday was March 5, 2010. About ninety days before that date, by letter of December 3, 2009, the board informed Rothstein, a University of Massachusetts professor who planned to work beyond age seventy, that he had the right to elect whether to continue his contributions to the system once he turned seventy. The letter was accompanied by a form, which Rothstein was to complete by indicating his choice and return to the board "no later than [thirty] [sic ][ ] days prior to [his seventieth] birthday."

Based on his years of service, Rothstein was already eligible for the maximum lifetime annual retirement benefit, eighty percent of his highest average annual compensation. He testified that "at the time it didn't seem likely that there would be salary increases[,] at least in the near future." Therefore, even if he continued to pay into the system, an increase in his ultimate retirement benefit was unlikely. After consulting with his wife and, according to his wife's testimony, a financial advisor, Rothstein decided to terminate his contributions. On February 3, 2010, he sent the board a fully executed form reflecting his decision to discontinue his retirement contributions when he reached age seventy.

Seventeen months later, on July 20, 2011, Rothstein sent a letter to the board requesting that he "be allowed to resume making retirement contributions, including the contributions for the period since March[,] 2010." In the letter, he acknowledged that "[t]he form stated, and [he] fully understood, 'that [his] decision cannot be revoked.' " When the board denied his request, Rothstein appealed to CRAB, asking that the board's decision be reversed for two reasons: first, the board's notice to Rothstein regarding his right to elect was provided later than required by the statute; and second, he had been misled by published materials propagated by the Public Employee Retirement Administration Commission regarding the approximate differences in retirement benefits under different pension options. An administrative magistrate of the Division of Administrative Law Appeals (DALA) concluded that, although the board's notice to Rothstein was not consistent with the statute, his election was irrevocable under G. L. c. 32, § 90G ¾. The magistrate also rejected Rothstein's contention that he had been misled, reasoning that the publications were not incorrect and the board had provided opportunities for clarification.

Rothstein objected to the magistrate's decision, but CRAB adopted the magistrate's findings and affirmed the DALA decision. Rothstein sought judicial review in Superior Court pursuant to G. L. c. 30A, § 14. Upon cross motions for judgment on the pleadings, the Superior Court judge ordered judgment for the defendants. This appeal followed.

Discussion. The language of the election statute at issue here is unambiguous. It plainly states that "[a]n election under this section may not be revoked." G. L. c. 32, § 90G ¾. Rothstein acknowledged that he understood the finality of his election when he executed the election form confirming that "I understand my decision cannot be revoked." Despite this assertion, he claims that he should have been permitted to change his election seventeen months later because he was not given the minimum 180 days' notice prescribed by statute. We are not persuaded.

"Judicial review of a CRAB decision under G. L. c. 30A, § 14, is narrow. We are not called upon to determine whether the CRAB decision is based on the 'weight of the evidence,' nor may we substitute our judgment for that of CRAB.... A court may not set aside a CRAB decision unless the decision is legally erroneous or not supported by substantial evidence." RetirementBd. of Salem v. Contributory Retirement Appeal Bd., 453 Mass. 286, 288-289 (2009), quoting from Damiano v. Contributory Retirement Appeal Bd., 72 Mass. App. Ct. 259, 261 (2008). Even where CRAB has erred, we will not set aside its decision unless the error has prejudiced the plaintiff's substantial rights. See G. L. c. 30A, § 14(7).

Here, the DALA magistrate made (and CRAB adopted) the finding that the board gave Rothstein ninety-two days' notice of his right to elect before his seventieth birthday, rather than the 180 days provided by statute. Although the statute requires 180 days' notice, it specifies no remedy if such notice has not been given. CRAB interpreted the statute to mean that members receiving deficient notice were entitled to more time (equal to the statutory period) to make their election. CRAB concluded, however, that once such members made their election, it was irrevocable. We think this interpretation of the plain language of G. L. c. 32, § 90G ¾, was reasonable. "Where an agency's interpretation of a statute is reasonable, [we] should not supplant it with [our] own judgment." Boston Retirement Bd. v. Contributory Retirement Appeal Bd., 441 Mass. 78, 82 (2004). For this reason, we discern no error in CRAB's decision.

Rothstein contends that CRAB's decision should be set aside because it acted arbitrarily or capriciously in selectively enforcing the provisions of G. L. c. 32, § 90G ¾. According to Rothstein, CRAB cannot permit the board to provide less timely notice than that required by the statute, and yet strictly enforce the irrevocability of his election. The argument is unavailing. "A decision is not arbitrary and capricious unless there is no ground which 'reasonable [people] might deem proper' to support it" (emphasis supplied). T.D.J. Dev. Corp. v. Conservation Commn. of N. Andover, 36 Mass. App. Ct. 124, 128 (1994), quoting from Cotter v. Chelsea, 329 Mass. 314, 319 (1952). As discussed above, the unambiguous language of the statute supported CRAB's decision. Bearing in mind the deference owed in this context, we discern nothing arbitrary or capricious in CRAB's application of the statute in these circumstances.

We disagree, however, with the board's argument that once a member makes an election under G. L. c. 32, § 90G ¾, the election is irrevocable, and no remedy is available, under any circumstances. This statutory interpretation is inconsistent with the general principle that the Superior Court has the equitable power to correct an administrative process that is fundamentally unfair. See Milligan v. Board of Registration in Pharmacy, 348 Mass. 491, 500 (1965) ("[T]he broad, remedial purpose of [G. L. c. 30A is] to provide comprehensively for procedural due process in administrative proceedings"). Accordingly, bearing in mind that we "grant special deference to the agency's interpretation of the statutory scheme it is charged with administering," Buchanan v. Contributory Retirement Appeal Bd., 65 Mass. App. Ct. 244, 246 (2005), we reject the board's contention that because the election was irrevocable under the statute, no remedy was available, even to address an inequity in the administrative process. However, for the reasons that follow, Rothstein has failed to demonstrate any inequity here.

Rothstein should have received notice of his right to elect at least 180 days before turning seventy. He did not. Nothing in the record, however, suggests that he suffered prejudice as a result. Rather, he made a considered decision after consulting with his wife and a financial advisor. Even though the election form recommended that Rothstein contact a retirement counselor to discuss his retirement options, he chose not to because he had no questions. According to Rothstein, "it seemed very straightforward." Consequently, he did not, at any point, request additional time to make his election. Moreover, he has not claimed, much less shown, that he would have chosen differently had he received more time to make his election. Simply put, Rothstein has failed to establish that the notice he received prejudiced his substantial rights. See G. L. c. 30A, § 14(7).

Judgment affirmed.

      Section 90G ¾ was repealed effective July 1, 2017. St. 2017, c. 47, §§ 28, 153. The repeal has no impact on this case. See St. 2017, c. 47, § 141 ("A member who made an election under section 90G ¾ ... prior to [July 1, 2017,] shall have the election maintained ...").

      See note 5, infra.

      This claim-that Rothstein was misled regarding the approximate difference in his retirement benefit under pension options A (monthly payments to the retiree for life) and C (reduced monthly payments to the retiree with a survivor benefit to the retiree's beneficiary for life)-was his principal argument in the proceedings before the board, DALA, and CRAB. Because he has not pursued this argument on appeal, we do not address it.

      We assume, for purposes of this decision, that the board's published materials also misinformed members that they could make their election up to thirty days before their seventieth birthday, where the statute provided that they must do so at latest sixty days before their birthday. This error was immaterial in Rothstein's case, as it provided him more time to make his decision.

      Our decision should not be interpreted to condone the publication of inaccurate information regarding the notice that members receive and the deadline for their election. CRAB's remedy for this misinformation was to grant members the extra time necessary to ensure that they receive the full statutory period to make this important decision. Under the circumstances, we think this remedy was reasonable. Rothstein's proposed remedy-to make his election, wait seventeen months, reevaluate, and then change his mind, was not.


text:
    Felicia HILLIARD-SAWYER v. Michael KELLY.
    16-P-859
    Appeals Court of Massachusetts.
    Entered: May 4, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The parties were divorced in 2008. They share joint legal custody of their four children, with the mother having primary physical custody and the father having rights of visitation. Following a multiple day trial on cross complaints for contempt, a Probate and Family Court judge entered a consolidated judgment that limited visitation in one particular manner that the father challenges on appeal. We affirm.

Background. The father has a long-term, live-in girl friend named Joelle Gomes (to whom the father refers as his fiancée). On April 21, 2014, there was an incident between Gomes and the parties' oldest daughter. As the judge found, by the time the police responded, "[e]veryone was calm and cooperative," and the police "concluded that it was a domestic argument, but no crime had been committed." The children did not report to the police at that time that Gomes had kicked or hit any of them. However, three days later, one of the children reported to her therapist that she saw "Gomes[ ] kick [the oldest daughter] multiple times" during the incident. After the Department of Children and Families received a report from the therapist of abuse or neglect pursuant to G. L. c. 119, § 51A, it opened an investigation and concluded that the report was supported.

A guardian ad litem appointed by the court "testified that the children [whom she found 'very credible'] raised concerns about [Gomes's] possible drug abuse, noting that she 'nods' off on occasion." On April 21, 2014-that is, the same day as the incident between Gomes and the parties' oldest daughter-Gomes was arrested for possession of narcotics after Suboxone was found in her car. According to the father, the charges were dropped after a friend of his came forward and claimed that the Suboxone was his.

Once the judge learned of the April 21, 2014, incident, he issued a temporary order barring Gomes from having contact with the children, and that order remained in effect during the pendency of the proceedings. Then, "[a]fter carefully considering all of the evidence [presented at trial, the judge found] that there [was] sufficient credible evidence to support [the] [m]other's argument that the children should not be in the presence of [Gomes,] at least until [she] receives anger management counsel, and is able to prove through a drug test that she is not abusing narcotics." The judge therefore made the temporary order permanent until Gomes satisfied those conditions. The judgment provided Gomes a detailed road map of what she needed to do before she would be allowed to spend time with the children. The father appealed, arguing that the trial judge erred in prohibiting his fiancée from spending time with the children until she complies with the conditions in the judgment.

Discussion. After a bench trial, we accept the trial judge's findings of fact absent clear error. Mason v. Coleman, 447 Mass. 177, 186 (2006). No such error has been shown here. The trial evidence substantiated the concerns that the judge found with regard to Gomes's volatility and potential substance abuse. In light of those concerns, the judged acted well within his considerable discretion in limiting Gomes's contact with the children until she addressed these issues. See Schechter v. Schechter, 88 Mass. App. Ct. 239, 245 (2015) ("[I]n reviewing the ultimate determination on custody and visitation, we consider whether there was an abuse of discretion in how the judge accounted for the child[ren]'s best interests"). In short, the judge had ample justification to modify the visitation provisions in the limited manner that he did.

Consolidated judgment affirmed.

      The mother initiated the current round of litigation by filing a complaint for modification (since withdrawn) that had sought to remove the children to California. The father filed a contempt action alleging that the mother was interfering with his visitation rights, and the mother filed a contempt action regarding unpaid child support and related issues.

      The friend testified at trial to the same effect.

      The judgment stated in pertinent part as follows:
      "Gomes shall not be in the presence of the children until she completes anger management counseling recommended by the [p]robation [d]epartment of the [c]ourt and until she submits to, and passes, a five panel hair drug test at the Franey Medical Laboratories in Mashpee, Massachusetts. [Gomes] shall contact the [p]robation [d]epartment of the [c]ourt immediately upon [the] [f]ather's receipt of this [j]udgment to enroll in anger management counseling. When she has completed said counseling and has submitted the results of a 'clean' hair test to the [p]robation [d]epartment then she may be present during [the] [f]ather's parenting time with the children."

      It bears noting that in order to be concerned about Gomes's volatility and potential substance abuse, the judge need not have accepted the allegations about Gomes's conduct in full. Thus, there was cause for the judge to be concerned about Gomes's comportment with the children regardless of whether he accepted as true the allegations that Gomes repeatedly kicked the parties' oldest daughter during the August 21, 2014, incident.

      Nor do we discern any procedural error in the judge's addressing his concerns in the case's current posture. Although it appears that the mother's concerns about Gomes were not expressly raised by the pleadings, they were tried with the implied consent of the parties. See Mass.R.Dom.Rel.P. 15(b) ; National Med. Care, Inc. v. Zigelbaum, 18 Mass. App. Ct. 570, 578-579 (1984) ("[I]f the issue is tried by the ... implied consent of the parties and there is no prejudicial surprise, it is treated as if it had been raised in the pleadings without regard to whether the pleadings are amended to conform to the evidence"). We are unpersuaded by the father's suggestion that the judge could not consider the testimony or report of the guardian ad litem on the ground that her appointment was to investigate the children's best interests with regard to the mother's request to remove them to California.

      "To the extent we do not discuss other arguments made by [the father] ..., they 'have not been overlooked. We find nothing in them that requires discussion.' " Department of Rev. v. Ryan R., 62 Mass. App. Ct. 380, 389 (2004), quoting from Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).


text:
    COMMONWEALTH v. Richard ZIEHL.
    16-P-1639
    Appeals Court of Massachusetts.
    Entered: May 4, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury trial in the Superior Court, the defendant, Richard Ziehl, was found to be a sexually dangerous person (SDP) as defined by G. L. c. 123A, § 1, and was committed to the Massachusetts Treatment Center for a term of one day to life. On appeal, he contends that the admission in evidence of two police reports pertaining to nonsexual criminal offenses constituted prejudicial error. We affirm.

Background. The defendant's lengthy criminal history is not in dispute. It includes convictions for multiple sexual offenses, numerous failures to register as a sex offender, and a 2003 home invasion, armed assault, and assault and battery perpetrated on his female therapist at her home. At trial, the Commonwealth presented evidence, inter alia, of the defendant's prior criminal history, an expert's opinion that his pattern of behavior has shown "impulsivity and aggression toward women that is sexual in nature," expert opinion that he suffered from a statutorily-defined personality disorder, and two expert opinions that he was likely to sexually reoffend if not confined to a secure facility. The defendant countered with his own expert's opinion that he did not suffer from a statutorily-defined personality disorder, had demonstrated "control of stopping" his behavior, and was not likely to sexually reoffend. The defendant testified that he had a great deal of self-control over his actions, and denied that the assault against his therapist in 2003 was sexually motivated. The jury found the defendant sexually dangerous. This appeal ensued.

Discussion. The defendant contends that the judge erred in allowing in evidence two police reports pertaining to "non sex offenses," because they contained inadmissible hearsay. Specifically, he maintains that those reports-one regarding a 1990 assault and unarmed robbery of a female taxi driver and the other regarding the 2003 home invasion of his female therapist's residence-were incorrectly admitted in evidence and should not have been referenced by the Commonwealth's experts. We disagree.

1. Standard of review. Contrary to the defendant's claim, the issue was not preserved for appellate review. Prior to jury empanelment, the judge noted that defense counsel had mentioned a "motion to exclude convictions for non-sex offenses," and then stated, "but I did not see a motion asking me to keep out the non-sexual offenses." In response, defense counsel advised, "I think my position at this point is that ... I expect those items to come in ... in fact, as a strategic measure, I am going to be referring to them." It is clear from the context of the discussion that the "items" referenced by defense counsel were the police reports now complained of on appeal. Thus, far from objecting to the admission of the reports, defense counsel agreed to their admission for strategic reasons.

After jury selection, the judge returned to the parties' motions in limine. Defense counsel stated her concern that qualified examiners included hearsay in their reports beyond what is allowed by statute. The judge heard from both parties, and then returned to defense counsel's earlier representations that she wanted to reference the alleged hearsay matters for "strategic reasons." Defense counsel indicated that the judge was correct, but expressed concern that Commonwealth witnesses might speculate that the home invasion might have escalated into a sexual assault had the therapist not armed herself with a chair to defend herself. The judge then engaged in the following exchange with the parties:

THE COURT : "So it is your belief that those statements would come in, but you are trying to prohibit the experts from surmising in some respect what events could have happened had she not armed herself with a chair? Is that a fair statement?"
[ DEFENSE COUNSEL ]: "Yes, your Honor."
THE COURT : "All right. That's the Commonwealth's understanding as well, right, of what admissible evidence is here?"
[ PROSECUTOR ]: "May I add something, your Honor?"
THE COURT : "Sure."
[ PROSECUTOR ]: "With respect to his denial of sexual intent, he does that in most of these to the [qualified examiner]. He denies any sexual intent."
THE COURT : "Okay. Well, let's focus just on this specific subject of [the defendant]'s motion. So do you agree that your experts will not surmise about what could have happened had the therapist/complaining witness not armed herself with a chair, but the statements regarding what [the defendant] says could have happened are admissible?"
[ PROSECUTOR ]: "Yes, your Honor."
THE COURT : "We're both on the same page on that?"
[ DEFENSE COUNSEL ]: "Yes."
THE COURT : "Okay. So that's the ruling as to the motion. Again, it's best if you object question to question. So I am allowing the motion with that understanding; and, again, unless the [the defendant] opens the door."
[ DEFENSE COUNSEL ]: "Yes, your Honor."

Defense counsel did not subsequently object to the admission of the testimony now contested on appeal. Thus, the record demonstrates that the defendant did not raise a specific objection to the admission of the police reports-i.e., the issue now raised on appeal. Accordingly, our review is limited to whether the alleged error created a substantial risk of a miscarriage of justice. See Commonwealth v. Fay, 467 Mass. 574, 583 n.9 (2014).

2. Analysis. The crux of the defendant's argument is that the police reports contained inadmissible hearsay and should not have been admitted in evidence because the crimes referenced therein do not meet the statutory definition of "sexual offense" within the meaning of the SDP statute. Pursuant to G. L. c. 123A, § 14(c ), where an individual has been named in an SDP petition, "police reports relating to such person's prior sexual offenses ... shall be admissible at the trial." Accordingly, our analysis turns on whether the incidents at issue in the police reports meet the statutory definition of "sexual offense" as defined in G. L. c. 123A, § 1. The statute's lengthy definition of "sexual offense" includes "any other offense, the facts of which, under the totality of the circumstances, manifest a sexual motivation or pattern of conduct or series of acts of sexually-motivated offenses." In the present case, we discern no error in the admission of the police reports.

As discussed, supra, defense counsel not only chose not to object to the admission of the reports, but also advised the judge that she intended to use the information therein as a strategic measure. Furthermore, the contents of police reports containing totem-pole hearsay are indeed admissible under the plain terms of the statute, and according to common law precedent. See McHoul, petitioner, 445 Mass. 143, 149-152 (2005). Most importantly, the 1990 and 2003 incidents could properly be viewed "under the totality of circumstances," as part of a "pattern of conduct or series of acts of sexually motivated offenses" within the meaning of G. L. c. 123A, § 1. The conduct at issue in these incidents largely mirrored the conduct in other sexual offenses perpetrated by the defendant because it encompassed violent, and seemingly random criminal behavior against females. For example, the 1990 attack of the female taxi driver contained notable similarities to the defendant's 1985 attack of a different female taxi driver. Similarly, one of the Commonwealth's experts opined that the 2003 home invasion involved "a pattern that was similar to the pattern of his sexual offenses." Under such circumstances, we cannot say that the judge erred by not excluding, sua sponte, the information now challenged for the first time on appeal. Cf. Commonwealth v. Given, 441 Mass. 741, 745-746, cert. denied, 543 U.S. 948 (2004). To the contrary, the information, in the context of the specific facts at issue here, fit into the broad statutory definition of "sexual offense." As there was no error, the admission of the reports from the 1990 and 2003 crimes did not create a substantial risk of a miscarriage of justice. See generally Commonwealth v. Glover, 459 Mass. 836 (2011) (where defense counsel's strategic decision was not manifestly unreasonable when made, there was no substantial risk of miscarriage of justice).

Judgment affirmed.

      Our conclusion that the defendant did not object to the admission of the police reports is bolstered by the Superior Court docket, which indicates that the defendant did not file any motion to exclude the police reports.

      One of the Commonwealth's experts further noted that the defendant had stated that his therapist (who was the subject of the home invasion) "had been provocative with him." The expert elaborated that the "provocative comment" concerned her because "it fit the pattern of [the defendant] feeling like women were coming onto him, which was upsetting to him in some way. And so he committed sexual assaults in the past, with that as one of the contributing factors."

      For the reasons delineated herein, we likewise discern no error (much less a substantial risk of a miscarriage of justice) resulting from the admission of the qualified examiner reports containing references to the 1990 and 2003 crimes.


text:
    COMMONWEALTH v. Adriano ALMONTE.
    17-P-595
    Appeals Court of Massachusetts.
    Entered: May 4, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant Adriano Almonte pleaded guilty in Superior Court to possession of a class B substance (oxycodone) with intent to distribute, in May, 2012. He thereafter sought relief from his guilty plea because Annie Dookhan was the confirmatory chemist for his case's drug analysis. The defendant argued that had he known of Dookhan's misconduct, there is a reasonable probability he would not have pleaded guilty. Before us now are his consolidated appeals from orders denying a motion for new trial and a reconsideration motion. Because the judge did not err in concluding that the defendant has not shown prejudice from Dookhan's involvement, we affirm.

1. Background. a. Facts. In July, 2010, Lynn police received information that the defendant and an accomplice were selling oxycodone from an address in Lynn, and that the two of them had recently purchased a large quantity of oxycodone and would be transporting it in the defendant's vehicle. The police were also advised that the defendant's vehicle contained a hidden compartment. Police officers stopped and searched the defendant's car, finding the hidden compartment; inside the compartment were a total of 709 pills, separated into several baggies. Two cellular telephones and $262 were also obtained from the defendant.

The 709 pills were sent to the William A. Hinton State Laboratory Institute for testing. A sample of five of the 709 pills was found to contain oxycodone. On the November, 2010, certificate, chemist Daniela Frasca, as primary chemist, and Annie Dookhan, as confirmatory chemist, are listed as analysts for the sample testing. Primary chemist Frasca analyzed the pills, and prepared five sample vials for confirmatory testing. Frasca and Dookhan certified that the pills contained oxycodone, and that the net weight of all of the pills was 191.32 grams.

The defendant was indicted for trafficking in opium or a derivative in the total amount of 100 grams or more, in violation of G. L. c. 94C, § 32E(c).

b. Plea. Pursuant to a plea agreement with the Commonwealth, on May 30, 2012, the defendant pleaded guilty to the lesser charge of possession of a class B substance (oxycodone) with intent to distribute, in violation of G. L. c. 94C, § 32A. At the plea hearing, the defendant admitted to the material facts, including that a search of the defendant's car revealed a hidden compartment containing a large quantity of pills that tested as oxycodone. The defendant received a sentence of four to five years in State prison.

c. Subsequent procedure. In October, 2012, upon learning of Dookhan's misconduct, the defendant filed his first motion for a new trial seeking to withdraw his guilty plea, questioning the accuracy of the drug analysis and arguing that he was deprived of his rights under the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. In March, 2013, the defendant filed an amended new trial motion (styled as an amended motion to vacate his guilty plea). On August 15, 2013, a special judicial magistrate issued proposed findings of fact and rulings of law denying the amended motion.

Following the defendant's objection to the magistrate's proposed findings and rulings, a Superior Court judge initially disagreed with the magistrate and allowed the motion for a new trial. However, at a January, 2014, evidentiary hearing, the judge was presented with the remaining pills held in evidence by the Lynn police department, and examined their physical integrity. On January 31, 2014, the judge then reversed his previous decision and affirmed the special magistrate's decision denying the defendant's new trial motion. The judge found that "the physical integrity of a very, very large number of the pills, and easily the majority is completely uncompromised. Thus, [the defendant] would not have altered his decision to plead guilty even if he were aware of Ms. Dookhan's misconduct."

On April 22, 2016, after the decisions in Commonwealth v. Scott, 467 Mass. 336 (2014), and Bridgeman v. District Attorney for the Suffolk Dist., 471 Mass. 465 (2015), the defendant sought to "reopen" his motion for a new trial, arguing based upon those decisions that prosecutorial misconduct was presumed, and that accordingly he had been denied due process. The motion, and a subsequent request for reconsideration, were each denied. The defendant appealed the latter denial on August 10, 2016, and we thereafter stayed the appellate proceedings.

On February 24, 2017, the defendant again filed a motion for a new trial seeking to withdraw his guilty plea. On March 23, 2017, the motion was denied because, inter alia, the defendant's case was not a "typical Dookhan case," as the physical integrity of the oxycodone pills was uncompromised. The defendant appealed from the March 23, 2017, order, and his appeals have been consolidated.

2. Discussion. The defendant claims that the motion judge abused his discretion in denying the defendant's motion for new trial. Our review of the judge's decision is limited to determining whether the judge "committed 'a significant error of law or other abuse of discretion.' " Scott, 467 Mass. at 344, quoting from Commonwealth v. Sherman, 451 Mass. 332, 334 (2008). "The judge's disposition of the new trial motion will not be reversed unless it is manifestly unjust ...." Commonwealth v. Hung Tan Vo, 427 Mass. 464, 467 (1998).

To prevail on a motion for a new trial in a Dookhan-related case, the defendant must satisfy a two-part test: he must show (1) "that egregious government misconduct [that implicates his due process rights] preceded the entry of his guilty plea," Scott, 467 Mass. at 347, and (2) that the conduct was material to the defendant's choice of pleading guilty, meaning that there is "a reasonable probability that he would not have pleaded guilty had he known of Dookhan's misconduct." Id. at 355. Accord Commonwealth v. Francis, 474 Mass. 816, 821 (2016). The full context of the defendant's decision to enter a plea agreement is taken into account. Scott, 467 Mass. at 357.

Regarding the first prong of the test, a defendant "is entitled to a conclusive presumption that egregious government misconduct occurred in the defendant's case" if he or she presents a drug certificate from their case that Dookhan signed either as the primary or confirmatory chemist. Scott, 467 Mass. at 352. See id. at 353 & n.9. In this case, as Dookhan was the confirmatory chemist on the sample submitted for testing, we must presume there was egregious government misconduct.

Here, however, the judge found that the defendant failed to demonstrate a reasonable probability that he would not have entered the guilty plea had he known of Dookhan's misconduct. There were hundreds of pills seized from the defendant's car; the motion judge in 2014 found, based on his own observation, that the physical integrity of the majority of these pills was uncompromised. This finding was cited by the motion judge in one of the orders under review. The defendant has not argued, let alone shown, that this finding is clearly erroneous. As a result, the judge could permissibly conclude that the pills were available to be analyzed by chemists other than Dookhan, and the results presented at any trial. In deciding whether to accept the plea deal, the defendant would have had to take into account that the Commonwealth may have been able to prove the contents of these other pills.

There was additional circumstantial evidence supporting the charges against the defendant. See id. at 357 (judge may consider whether Commonwealth presented other circumstantial evidence to support charge). A police informant identified the defendant as an oxycodone dealer and advised police about the hidden compartment in the defendant's car. The defendant's vehicle contained hundreds of pills in such a hidden compartment, and the police observed the defendant entering and driving the vehicle. Some or all of this circumstantial evidence, which tended to show that the defendant possessed and distributed oxycodone, also would have been available at any trial. See Commonwealth v. Antone, 90 Mass. App. Ct. 810, 818 (2017).

In addition to facing a substantial risk of a guilty verdict if he went to trial, the defendant received a considerably reduced sentence as a result of the plea agreement. See Scott, 467 Mass. at 357 (motion judge may consider sentence reduction resulting from plea); Commonwealth v. Resende, 475 Mass. 1, 18-19 (2016). At the time of the plea, the defendant's original charge of trafficking in over 100 grams of opium or a derivative carried a ten-year mandatory minimum sentence. G. L. c. 94C, § 32E(c ), as amended through St. 1992, c. 396, § 3. By agreement the defendant pleaded guilty to the lesser offense of possession of a class B substance with intent to distribute, thereby eliminating, potentially, five additional years in prison.

Finally, apart from Dookhan's misconduct there is no evidence that the defendant had a substantial ground of defense to pursue at trial.

In short, the Superior Court judge did not abuse his discretion or otherwise err in determining that the defendant failed to satisfy his burden of demonstrating a reasonable probability that he would not have pleaded guilty had he known of Dookhan's misconduct.

Order entered August 1, 2016, denying motion for reconsideration affirmed.

Order entered March 23, 2017, denying motion for new trial affirmed.

      The defendant was deported based on his conviction.

      See Commonwealth v. Scott, 467 Mass. 336, 337-342 (2014).

      The defendant filed a notice of appeal from the judge's January 31, 2014, order but apparently failed to perfect the appeal. Even if that appeal were before us, we would reach the same result as we do in our discussion below.

      Although not raised by the defendant, we have considered the statement in Scott, 467 Mass. at 357, that "a judge may not consider any assertion by the Commonwealth that it would have offered to retest the substances at issue in the defendant's case if the defendant had known of Dookhan's misconduct." The statement is not applicable to the facts here, as here the judge's decision denying the motion for new trial was not based upon any offer of the Commonwealth to retest or upon any hypothetical results; rather, the denial was based upon a judge's examination of the physical evidence, and the recognition that many of the pills were physically uncompromised.
      The Scott court's concern about "hypothetical arguments," ibid., accordingly is not present in this case; here at the time of his plea the defendant knew that there were many pills seized, and that given their physical characteristics they may have remained uncompromised. These were the "actual facts and circumstances" that the defendant would have had to consider in deciding whether to plead guilty, even if he had known of Dookhan's misconduct. Ibid.

      We therefore additionally conclude that the motion judge did not err in denying the defendant's motion for a new trial without an additional evidentiary hearing.


text:
    NELI RIDGE, LLC, & another v. TOWN CLERK OF WILMINGTON & another.
    17-P-1350
    Appeals Court of Massachusetts.
    Entered: May 4, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Sixth Realty Trust.

      The town of Wilmington.

   Sixth Realty Trust (the trust) appeals from a Land Court summary judgment dismissing with prejudice the trust's complaint for mandamus and declaratory relief. The sole issue on appeal, as framed by the trust, is whether it is entitled to a certificate of constructive approval, under G. L. c. 40A, § 15, of its 2016 request that the zoning board of appeals of Wilmington (ZBA) modify what the trust characterizes as a "variance" the ZBA had issued in 2008 regarding the trust's property known as 12 Polk Street in Wilmington (town). We agree with the judge that the trust is not entitled to such a certificate and therefore affirm, with one minor modification.

Background. We base our recitation of the pertinent facts largely on the summary judgment decision. The town has an "official map" under G. L. c. 41, § 81E, which affects the issuance of building permits. The trust wished to build on its property at 12 Polk Street, but that street does not appear on the official map. In 2008, the trust, through its trustee, applied to the ZBA, among other things, for relief under G. L. c. 41, § 81Y, from compliance with the official map requirement.

The ZBA received an opinion from town counsel on August 12, 2008, concluding that even if the ZBA granted such relief, no building permit could issue until a way providing frontage for 12 Polk Street was constructed with the approval of the town planning board under G. L. c. 41, § 81G. Town counsel cited a Land Court decision from 2000 in which the town and the ZBA were defendants, and in which a judge concluded that the ZBA's grant of relief under § 81Y"does not obviate compliance with [§ ]81G." On August 13, 2008, the ZBA issued a decision that, among other things, granted the trust relief from the official map under § 81Y, with the understanding "that the applicant must still comply with the requirements of [§ ]81G, as described in Town Counsel's Advisory Opinion."

The trustee appealed other aspects of the ZBA's decision, but not the inclusion of the § 81G provision, to the Land Court. In 2011, a judge affirmed the ZBA decision and, on the trustee's appeal, a panel of this court affirmed the judgment in an unpublished memorandum and order issued pursuant to our rule 1:28. Nelson v. Wilmington, 81 Mass. App. Ct. 1133 (2012).

On June 30, 2016, the trust, through its trustee, filed with the ZBA an application requesting, among other things, to "remove [the § ]81G restriction from [the] variance granted [in] 2008." The following day, the secretary to the ZBA returned the application and the filing fee to the trustee, stating that "[§ ]81G is not [within] the jurisdiction of the [ZBA]."

After 100 days had passed, the trustee filed with the town clerk, on October 14, 2016, a notice of constructive approval under G. L. c. 40A, § 15. On November 2, 2016, the town clerk notified the trustee that no constructive approval had occurred because the application was not within the ZBA's jurisdiction and had never been accepted for filing. Nevertheless, on November 22, 2016, the trustee submitted to the town clerk a certificate of constructive approval with a request that it be executed and returned to the trustee.

The town clerk evidently did not execute or return the certificate, because the trust then filed suit in the Land Court seeking mandamus and declaratory relief aimed at compelling her to do so. The judge ordered summary judgment dismissing the complaint, and this appeal followed.

Discussion. We agree, albeit on grounds different from those cited by the judge, that no constructive approval occurred under G. L. c. 40A, § 15. Quite simply, there was never any effective filing so as to trigger the constructive approval mechanism. The trust's filing was not accepted; instead, the ZBA secretary returned the trust's application and filing fee, stating that the ZBA lacked jurisdiction over the application.

We recognize that the purpose of the constructive approval mechanism is to "[obligate] a board of appeals to act on an appeal within the statutory time period, otherwise the appellant prevails by default." Capone v. Zoning Bd. of Appeals of Fitchburg, 389 Mass. 617, 622 (1983), quoting from Rinaudo v. Zoning Bd. of Appeals of Plymouth, 383 Mass. 885, 885 (1981). Here, however, the trust was informed, within days after filing its application, that the ZBA believed it lacked jurisdiction and was returning the application and filing fee to the trust. This belief, moreover, had a reasonable legal basis, which was known to the trust because of its prior dealings with the ZBA on the issue. The trust could not reasonably have thought that any further action from the ZBA was forthcoming.

If the trust disagreed with the ZBA's position, it could have promptly sought mandamus relief to compel the ZBA to accept the application for filing and could thereby have obtained an early judicial determination of whether the ZBA's position was correct. It is incongruous at best for the trust, instead, to have done nothing for 100 days and then to attempt to take advantage of a statute meant to incentivize ZBAs to make prompt decisions.

Conclusion. Because the application was not constructively approved, the town clerk had no duty to execute any constructive approval certificate; therefore the judgment dismissing the trust's mandamus claim was correct. As to the declaratory judgment claim, "[w]hen an action for declaratory relief is properly brought and relief is denied on the merits, the action should not be dismissed. ... The rights of the parties should be declared." Attorney Gen. v. Kenco Optics, Inc., 369 Mass. 412, 418 (1976). We therefore order that the judgment be modified to include, instead of a dismissal of the declaratory judgment claim (count V of the complaint), a declaration that no constructive approval has occurred of the trust's application to remove the provision regarding G. L. c. 41, § 81G, from the ZBA's 2008 grant of relief under c. 41, § 81Y, and that the trust is not entitled to any certificate of such constructive approval. As so modified, the judgment is affirmed.

So ordered.

As so modified, the judgment is affirmed.

      It appears that in 2008, 12 Polk Street was owned by the Kaiser Realty Trust, of which Mark Nelson was trustee. As of 2016, the property was owned by Sixth Realty Trust, of which Nelson is also the trustee. As nothing appears to turn on the distinction between the trusts, we refer for simplicity to "the trust."

      Insofar as relevant here, § 81G, as appearing in St. 1953, c. 674, § 5, provides:
      "After a city or town has adopted an official map under section eighty-one E, no person shall open a way for public use, except as provided in the subdivision control law, unless the location of such way is in accordance with such official map as it then appears, or has been approved by the planning board under the provisions of this section, and in either case, the grading, surfacing and drainage of such way has been approved by such board" (emphasis added).

      The trust has inexplicably and inexcusably omitted from the record appendix both town counsel's advisory opinion and the ZBA's decision. We have taken judicial notice of those materials as they appear in the record appendix in related litigation, Nelson v. Wilmington, 81 Mass. App. Ct. 1133 (2012). See Jarosz v. Palmer, 436 Mass. 526, 530 (2002) (court may take judicial notice of court records in related case).

      That statute provides in pertinent part: "The decision of the [ZBA] shall be made within one hundred days after the date of the filing of an appeal, application or petition .... Failure by the [ZBA] to act within said one hundred days ... shall be deemed to be the grant of the appeal, application or petition." G. L. c. 40A, § 15, as appearing in St. 1987, c. 498, § 3.

      The ZBA secretary's letter does not appear to have met the various procedural requirements for formal ZBA action under G. L. c. 40A, § 15, and the defendants do not argue that the letter itself constituted sufficient ZBA action to prevent constructive approval under that statute. See generally Capone v. Zoning Bd. of Appeals of Fitchburg, 389 Mass. 617, 622-623 (1983) (discussing ZBA actions required to prevent constructive approval under earlier version of G. L. c. 40A, § 15 ).