text:
    COMMONWEALTH v. Gerardo CRUZ.
    SJC-12463
    Supreme Judicial Court of Massachusetts.
    December 27, 2018
    Mark Booker, Boston, for the respondent.
    John P. Zanini, Assistant District Attorney (AlexaRae Wright, Assistant District Attorney, also present) for the Commonwealth.
    RESCRIPT
    Gerardo Cruz appeals from a judgment of a single justice of this court allowing the Commonwealth's petition for relief pursuant to G. L. c. 211, § 3. The Commonwealth sought relief from the portion of a discovery order that, in essence, required the prosecutor to produce certain exculpatory information from the personnel files of the Boston Police Department and its internal affairs division. We affirm.
    Cruz is charged in the Boston Municipal Court with two counts of unlawful possession of a firearm, unlawful possession of ammunition, drug possession, two counts of possession with intent to distribute drugs, and receiving stolen property. In October 2017, a judge in that court granted in part Cruz's motion for discovery from the Commonwealth, including a request, appearing in paragraph two of the endorsed motion, that the Commonwealth produce "[d]ocuments and information concerning whether [the Boston Police Department] has ever admonished, disciplined, investigated, [or] reprimanded" the police officer who drafted the search warrant affidavit in Cruz's case. At the hearing on the motion, the judge made clear to the prosecutor that "in [her] view that mean[t] personally looking through [internal affairs division] materials, personnel files of this officer, and finding out from supervisors whether there's anything of that nature." The Commonwealth sought reconsideration of the order insofar as it purported to require the prosecutor, pursuant to Mass. R. Crim. P. 14, as appearing in 442 Mass. 1518 (2004), to review files not in the Commonwealth's "possession, custody or control." The motion judge denied the request for reconsideration, and the Commonwealth then sought relief from a single justice of this court pursuant to G. L. c. 211, § 3.
    After a hearing, the single justice allowed the Commonwealth's petition, reasoning that "[h]ere, as in Commonwealth v. Wanis, 426 Mass. 639, 644 [690 N.E.2d 407] (1998), 'the judge erred in ordering discovery pursuant to rule 14 of records of the internal affairs division of a police department against a prosecutor who did not have possession, custody, or control of any of the requested information.' Commonwealth v. Rodriguez, 426 Mass. 647, 648, 692 N.E.2d 1 (1998)." The single justice further found that to the extent that the request at issue was made pursuant to Mass. R. Crim. P. 17, 378 Mass. 885 (1979), the requirements of neither rule 17 nor Wanis were satisfied.
    "We review a decision of the single justice ... under G. L. c. 211, § 3, only for 'clear error of law or abuse of discretion.' " Commonwealth v. Bertini, 466 Mass. 131, 137, 993 N.E.2d 654 (2013), quoting Caggiano v. Commonwealth, 406 Mass. 1004, 1005, 550 N.E.2d 389 (1990). Here, the single justice properly vacated paragraph two of the discovery order to the extent it "require[d] the prosecutor assigned to the case to look through the internal affairs division file and/or other personnel files of the Boston police officer who wrote the search warrant affidavit," where such materials were not in the possession, custody, or control of the Commonwealth. But by vacating the provision of the discovery order that contained this requirement, the single justice did nothing to relieve the Commonwealth of its ongoing duty to disclose exculpatory information -- including any material, exculpatory information related to past discipline or internal investigation of the officer in question -- to the extent such information is in the possession, custody, or control of the prosecution team. Wanis, 426 Mass. at 644, 690 N.E.2d 407. See Mass. R. Crim. P. 14 (a).
    Moreover, Cruz is not necessarily foreclosed from seeking additional materials from the Boston Police Department through a motion pursuant to rule 17, provided that he can meet the applicable legal standard under that rule. See Wanis, 426 Mass. at 643-644, 690 N.E.2d 407. See also Commonwealth v. Dwyer, 448 Mass. 122, 139-147, 859 N.E.2d 400 (2006) (discussing protocol for pretrial inspection of third-party records under Mass. R. Crim. P. 17 ); Commonwealth v. Lampron, 441 Mass. 265, 268, 806 N.E.2d 72 (2004) (holding that "[r]egardless of how a defendant styles his request, pursuit of documents and records in the possession of a nonparty must be considered and analyzed under rule 17 [a] [2]"); Rodriguez, 426 Mass. at 648-650, 692 N.E.2d 1 (concerning rule 17 discovery of certain records of internal affairs division).
    Judgment affirmed.

      The parties dispute whether the challenged portion of the discovery order was issued pursuant to Mass. R. Crim. P. 14 or Mass. R. Crim. P. 17, 378 Mass. 885 (1979). Because the dispute centers on the scope of the prosecutor's obligations under the discovery order (rather than the Boston Police Department's), we treat it primarily under rule 14.

      Cruz argues that the single justice erred in determining that the discovery order was modified by the trial judge's comments at the hearing to include this requirement. We see no error in the single justice's interpretation. In any event, to the extent the single justice may have gone further than necessary in vacating the entirety of paragraph two, as opposed to merely clarifying the prosecutor's obligations under that paragraph, there would be no prejudice to Cruz, for the reasons discussed herein.


source: Caselaw Access Project

license: Public Domain

text:
    Sevket AKTAS v. Tina AKTAS.
    SJC-12104
    Supreme Judicial Court of Massachusetts.
    December 27, 2018
    Sevket Aktas, pro se.
    The petitioner, Sevket Aktas, appeals from a judgment of a single justice of this court denying his petition for extraordinary relief pursuant to G. L. c. 211, § 3. We affirm.
    The petitioner was divorced from the respondent, Tina Aktas, pursuant to a judgment of divorce nisi entered February 7, 2011. In May, 2011, the respondent filed a complaint for modification of child support in the Probate and Family Court, which was followed, in January of the following year, by a motion pursuant to Mass. R. Dom. Rel. P. 60(b) to set aside the property settlement in the divorce judgment. A judge allowed both requests for relief, issuing a judgment dated December 27, 2013.
    The petitioner then made several pro se filings in the Appeals Court in an attempt to appeal from the judgment. The first was treated as a motion to file a late notice of appeal, which was denied without prejudice. The petitioner renewed the motion to file a late notice of appeal in his second filing in the Appeals Court, and a single justice of that court granted the motion, directing the petitioner "to file his notice of appeal in the Probate and Family Court on or before November 24, 2014." However, rather than file a notice of appeal in the Probate and Family Court as directed, the petitioner made a third pro se filing in the Appeals Court on November 24, 2014, which consisted of a number of miscellaneous documents (but not a notice of appeal). The Appeals Court clerk docketed the miscellaneous materials, but notified the petitioner that the case was closed and that "[n]o action will be taken by the court on this or any future filing in this matter."
    The petitioner then sought extraordinary relief from a single justice of this court pursuant to G. L. c. 211, § 3, which the single justice denied.
    "It is incumbent on a party seeking exercise of this court's extraordinary power of general superintendence under G. L. c. 211, § 3, to demonstrate the absence or inadequacy of alternative means of redress." Lasher v. Leslie-Lasher, 474 Mass. 1003, 1004, 46 N.E.3d 1027 (2016). The petitioner has failed to meet that burden here, where he had the opportunity to obtain review of the judgment of the Probate and Family Court judge in an appeal to a panel of the Appeals Court; was given leave by a single justice of the Appeals Court to file a late notice of appeal in the Probate and Family Court in order to avail himself of that remedy; yet failed to file a notice of appeal in the Probate and Family Court as directed, either within the time initially provided by the rules or within the extended time authorized by the Appeals Court single justice. See Mass. R. A. P. 3 (a), as amended, 378 Mass. 927 (1979) ("An appeal permitted by law from a lower court shall be taken by filing a notice of appeal with the clerk of the lower court ..."); Mass. R. A. P. 4, as amended, 430 Mass. 1603 (1999) (defining time within which notice of appeal must be filed); Mass. R. A. P. 14 (b), as amended, 378 Mass. 939 (1979) (authorizing single justice of appellate court to extend time for filing notice of appeal). See also Lasher, supra (affirming denial of relief pursuant to G. L. c. 211, § 3, where adequate review of order denying relief from divorce judgment could be obtained "through the ordinary appellate process, in an appeal to a panel of the Appeals Court"); Cimini v. Cimini, 449 Mass. 1033, 873 N.E.2d 237 (2007) (affirming denial of relief pursuant to G. L. c. 211, § 3, where appropriate avenue for relief from interlocutory order of Probate and Family Court judge was "to appeal in the ordinary course from any final adverse judgment in the Probate and Family Court"). The single justice did not commit a clear error of law or abuse her discretion in denying relief.
    Judgment affirmed.


text:
    James MURRAY v. MASSACHUSETTS PAROLE BOARD & Another.
    SJC-12241
    Supreme Judicial Court of Massachusetts.
    December 27, 2018
    James Murray, pro se.
    RESCRIPT
    The petitioner, James Murray, also known as James Hines, appeals from the judgment of a single justice of this court denying, without a hearing, his petition for equitable relief. We affirm.
    The petitioner was convicted in 1982 of armed robbery and escape. His consecutive committed sentences "were to be served from and after sentences he was, and still is, serving in Federal prison in connection with offenses committed in the District of Columbia. In 2003, he was granted parole from Federal prison, but declined to be released because he did not want to return to Massachusetts to serve his 'from and after' sentences." Murray v. Massachusetts Parole Bd., 451 Mass. 1002, 1003, 884 N.E.2d 954 (2008) (seeking order directing Massachusetts Parole Board to aggregate Massachusetts and District of Columbia sentences). See Murray vs. Bledsoe, U.S. Dist. Ct., Nos. 10-11019, 11-10905 (D. Mass. Sept. 11, 2012), aff'd, U.S. Ct. App., No. 12-2245 (1st Cir. June 03, 2014) ("[s]ince 2003, the United States Parole Commission has ordered the petitioner paroled to the custody of Massachusetts authorities on at least three occasions. Each time the petitioner has refused to sign the parole certificate, nullifying the parole").
    Although the petitioner has not yet begun serving his Massachusetts sentences, the petition filed in the county court essentially sought an order requiring that he be considered for parole, citing G. L. c. 127, § 134 (c ), and general principles of equity. The single justice properly denied the petition. "To the extent that the petitioner seeks credit toward satisfaction of his Massachusetts sentences for the time he has remained incarcerated in Federal prison since he was granted but refused release on parole, such relief is not available because he is not currently serving his Massachusetts sentences; the [Massachusetts Parole] [B]oard is authorized to make parole decisions affecting only 'prisoners in [S]tate and county correctional institutions,' " Murray, 451 Mass. at 1003, 884 N.E.2d 954, quoting G. L. c. 127, § 128, including "inmate[s] serving a Massachusetts sentence in another [S]tate." G. L. c. 127, § 134 (c ). The petitioner is not such an inmate. See Murray vs. Stempson, U.S. Dist. Ct., No. 92-0118 (D.D.C. May 1, 1992) (denying petitioner's request for order directing District of Columbia Parole Board to aggregate his District of Columbia sentences with his Massachusetts sentences).

      Advisory Board of Pardons.

      The petitioner's multiple prior attempts to challenge aspects of his Massachusetts sentences have been unsuccessful. See Murray v. Commonwealth, 455 Mass. 1016, 1017, 918 N.E.2d 787 (2009) (dismissing as moot petition for equitable relief concerning sentence appeals); Murray v. Massachusetts Parole Bd., 451 Mass. 1002, 1003, 884 N.E.2d 954 (2008) (Parole Board without authority to make parole decisions where petitioner not serving Massachusetts sentences); Murray v. Commonwealth, 447 Mass. 1010, 1010, 852 N.E.2d 66 (2006) (seeking relief in nature of mandamus concerning sentence appeals); In re Hines, 432 Mass. 1004, 1005, 732 N.E.2d 274 (2000) (G. L. c. 211, § 3, petition seeking certification of question concerning constitutionality of consecutive sentences or an advisory opinion); Hines v. Commonwealth, 425 Mass. 1013, 1013, 680 N.E.2d 1172 (1997) (G. L. c. 211, § 3, petition alleging errors in connection with sentence appeals); Hines v. Commonwealth, 423 Mass. 1004, 668 N.E.2d 324, cert. denied, 519 U.S. 984, 117 S.Ct. 439, 136 L.Ed.2d 337 (1996) (seeking relief, pursuant G. L. c. 211, § 3, from imposition of consecutive sentences on and after sentence being served in District of Columbia). See also Hines v. Superior Court, 423 Mass. 1005, 668 N.E.2d 323, cert. denied, 519 U.S. 984, 117 S.Ct. 439, 136 L.Ed.2d 337 (1996) (seeking relief from convictions, pursuant to G. L. c. 211, § 3 ).

      General Laws c. 127, § 134 (c ), provides in part that "in the case of an inmate serving a Massachusetts sentence in another [S]tate, the chairman may request the paroling authority of that [S]tate or at the written request of the inmate the [F]ederal paroling authority with jurisdiction over the institution in which said inmate is housed to conduct a hearing in lieu of the Massachusetts board for the purpose of ascertaining the suitability of such inmate for a parole permit and to report its findings and recommendations as to parole and conditions of parole to the board."

      We again "express no view on the merits of the petitioner's claims were he to raise them after returning to Massachusetts to begin serving his sentences." Murray, 451 Mass. at 1003 n.3, 884 N.E.2d 954.

   In Murray v. Commonwealth, 455 Mass. 1016, 1016-1017, 918 N.E.2d 787 (2009), we described the petitioner's history of filing multiple improper and ultimately unsuccessful actions in this court to challenge his Massachusetts sentences. We put him "on notice that any future attempt to seek extraordinary relief from this court, pursuant to G. L. c. 214, § 1 ; G. L. c. 211, § 3 ; or otherwise, raising like claims may result in appropriate action by the court." Id. at 1017, 918 N.E.2d 787. We now order, therefore, that until such time as the petitioner actually begins serving his Massachusetts sentences, he shall not be permitted to file any further action in this court challenging the validity or status of his sentences or his entitlement to parole, without prior approval of a single justice of this court.

Judgment affirmed.

      We decline to address additional issues raised by the petitioner on appeal that were not raised before the single justice, or to consider materials that were not included in the record before her. See In re Hines, 432 Mass. at 1005 n.1, 732 N.E.2d 274, citing Milton v. Boston, 427 Mass. 1016, 1017, 696 N.E.2d 141 (1998), and Campiti v. Commonwealth, 426 Mass. 1004, 1005, 687 N.E.2d 268 (1997).


author: KAFKER, J.

text:
    Jillian CALIXTO & another v. Heather COUGHLIN & others.
    SJC-12515
    Supreme Judicial Court of Massachusetts, Middlesex..
    Argued November 8, 2018. Decided December 28, 2018.
    Nicholas J. Rosenberg, Boston, for the plaintiffs.
    David G. Thomas (Mian R. Wang, Boston, also present) for the defendants.
    The following submitted briefs for amici curiae: Christopher H. Lindstrom & Matthew P. Ritchie, Boston, for Greater Boston Chamber of Commerce.
    Ben Robbins & Martin J. Newhouse, Boston, for New England Legal Foundation.
    Arthur P. Murphy & Geoffrey P. Wermuth, Quincy, for Murphy, Hesse, Toomey & Lehane, LLP.
    Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

      Individually and on behalf of all others similarly situated, and derivatively on behalf of ISIS Parenting, Inc.

      Kathryn Reynolds, individually and on behalf of all others similarly situated, and derivatively on behalf of ISIS Parenting, Inc.

      Heather Coughlin, Peter Delahunt, Gregg Dion, and S. Brendan Coughlin.

   KAFKER, J.

The primary issue presented is the interplay, if any, between two employee protection statutes: G. L. c. 149, § 148 (Wage Act), and the Federal Worker Adjustment and Retraining Notification Act, 29 U.S.C. §§ 2101 - 2109 (2018) (WARN Act). The defendant corporate officers (officers) directed ISIS Parenting, Inc. (company), where the plaintiff employees (employees) worked until it abruptly ceased operations and terminated its entire workforce. Alleging a WARN Act violation for failure to provide them with sixty days' advance notice of the company's shutdown, the employees brought a class action lawsuit against the company in Federal court and received a nearly $2 million default judgment. Subsequently, the employees brought a putative class action lawsuit against the officers in State court under the Wage Act, claiming that the $2 million WARN Act damages constitute wrongfully withheld "earned wages" for which the officers are individually liable. In addition, the employees argue that the officers committed a breach of fiduciary duties that they owed to the company by allowing the company to violate the WARN Act. Because we conclude that WARN Act damages are not "earned wages" under the Wage Act, and that the employees have not asserted a viable claim for breach of fiduciary duties, we affirm the dismissal of the employees' case.

1. Background. We review the allowance of a motion to dismiss de novo, accepting all well-pleaded facts in the complaint as true, and taking into account any attached materials. See Cook v. Patient Edu, LLC, 465 Mass. 548, 549, 989 N.E.2d 847 (2013). The employees were among the more than 200 people who worked at the company, which operated for more than a decade and had several stores in the Boston area. At some point the company ran into financial difficulties, and its management decided to stop operating. On January 14, 2014, without any prior warning, one of the officers informed the company's employees that the company was shutting down and their employment was terminated immediately.

That fall, the employees brought a class action lawsuit against the company in the United States District Court for the District of Massachusetts, alleging a violation of the WARN Act. The WARN Act provides that an employer, defined as a "business enterprise" that employs at least one hundred full-time employees or at least one hundred full- and part-time employees who collectively work at least 4,000 non-overtime hours per week, 29 U.S.C. § 2101(a)(1), "shall not order a plant closing or mass layoff until the end of a [sixty]-day period after the employer serves written notice of such an order" on each affected employee or the employees' representative, 29 U.S.C. § 2102(a). If an employer fails to comply with the sixty-day notice requirement, it "shall be liable to each aggrieved employee who suffers an employment loss as a result of such closing or layoff" for "back pay" and employee benefits covering each day of the notice violation. 29 U.S.C. § 2104(a)(1). "Back pay" under the WARN Act is owed for each day of violation and is set as the higher of the "average regular rate" received during the employee's last three years of employment or the "final regular rate" received by the employee. 29 U.S.C. § 2104(a)(1)(A). The WARN Act further provides that these remedies "shall be the exclusive remedies for any violation of this chapter." 29 U.S.C. § 2104(b). The WARN Act also states that "[t]he rights and remedies provided to employees by this chapter are in addition to, and not in lieu of, any other contractual or statutory rights and remedies of the employees, and are not intended to alter or affect such rights and remedies." 29 U.S.C. § 2105.

The company did not defend the lawsuit, and the Federal District Court judge eventually awarded a nearly $2 million default judgment under the WARN Act to the employees. After failing to collect any of this judgment amount from the company due to the company's insolvency, the employees brought this putative class action in the Superior Court against the officers directly. The officers moved to dismiss the complaint for failure to state a claim. The Superior Court judge granted the motion, finding that the Federal District Court's WARN Act award "does not qualify as 'earned wages' giving rise to a claim under the Wage Act." This appeal followed.

2. Discussion. a. Whether WARN Act damages are earned wages under the Wage Act. The Wage Act provides that "[e]very person having employees in his service shall pay weekly or bi-weekly each such employee the wages earned by him to within six days of the termination of the pay period during which the wages were earned if employed for five or six days in a calendar week." G. L. c. 149, § 148, first par. It also provides that outstanding wages shall be paid "in full on the day of [an employee's] discharge." Id. To combat "unscrupulous employers" who violate these requirements by withholding earned wages (citation omitted), Segal v. Genitrix, LLC, 478 Mass. 551, 560, 87 N.E.3d 560 (2017), the Wage Act, with limited exceptions not relevant here, provides a private cause of action, imposes personal liability on certain corporate officers, and awards mandatory treble damages and attorney's fees to a successful plaintiff. See Melia v. Zenhire, Inc., 462 Mass. 164, 170, 967 N.E.2d 580 (2012) (describing these provisions of Wage Act). It may also impose criminal liability. See G. L. c. 149, § 27C.

Although the statute does not specifically define "wages earned," we have adopted the "plain and ordinary meaning" of those terms. Awuah v. Coverall N. Am., Inc., 460 Mass. 484, 492, 952 N.E.2d 890 (2011). Specifically, we explained there that "[w]here an employee has completed the labor, service, or performance required of him, therefore, according to common parlance and understanding he has 'earned' his wage." Id. In Massachusetts State Police Commissioned Officers Ass'n v. Commonwealth, 462 Mass. 219, 220, 226, 967 N.E.2d 626 (2012) ( State Police ), we provided further guidance in the context of employees challenging a mandatory furlough program that they contended should not have been applied to them. We rejected their argument that the deprivation of wages they would or should have earned was the deprivation of "earned wages" under the Wage Act. Id. at 226, 967 N.E.2d 626. We agreed with the employer that "the right to payment of 'earned' wages is secured by virtue of work or service actually performed," id. at 225, 967 N.E.2d 626, and thus that "a prospective reduction in the number of days to be worked," even if improper, "does not deprive the plaintiffs of any wages 'earned' " under the Wage Act, id. at 226, 967 N.E.2d 626.

The same is true for the failure to pay the additional compensation awarded to workers under the WARN Act if the sixty days' notice of plant closure is not provided. The payment is not for work that has actually been performed but for work that would have been performed had the sixty days' notice been provided. In fact, the WARN Act provides that the amount of compensation "shall be reduced by ... any wages paid by the employer to the employee for the period of violation" (emphasis added). 29 U.S.C. § 2104(a)(2)(A). The extraordinary relief the Wage Act provides -- individual liability, treble damages, and possible criminal liability -- is directed at particularly egregious behavior, i.e., not paying wages for work actually performed, and not at other employment violations. See Segal, 478 Mass. at 560, 87 N.E.3d 560 (purpose of Wage Act is to prevent employers' unscrupulous, long-term detention of wages).

Furthermore, not only must the employees' work actually have been performed, but the wages also must be presently -- not just prospectively or potentially -- due to be paid by the employer. See, e.g., State Police, 462 Mass. at 225, 967 N.E.2d 626 ; Weems v. Citigroup Inc., 453 Mass. 147, 153-155, 900 N.E.2d 89 (2009). For example, we recently held that accrued, unused "sick time" was not an "earned wage" under the Wage Act where separating employees were only entitled to compensation for that accrued sick time under certain conditions. See Mui v. Massachusetts Port Auth., 478 Mass. 710, 713, 89 N.E.3d 460 (2018). We also rejected the argument that tax deferred compensation was wages under the Wage Act that must be paid within seven days of the end of the pay period, holding that "[t]he Legislature's remedy for the evil of unreasonable detention of wages is not applicable to deferred compensation contributions," as "[t]he contributed funds are intended to be held, out of the employee's possession, for an extended period." Boston Police Patrolmen's Ass'n, Inc. v. Boston, 435 Mass. 718, 720, 761 N.E.2d 479 (2002). The work must have been actually performed and wage payments must be presently due to trigger the precise requirements and severe penalties of the Wage Act.

Characterizing WARN Act damages as back pay does not alter this analysis. Earned wages are not the equivalent of back pay.

Back pay compensates a variety of different types of employment law violations under State and Federal law. In general, it compensates employees for amounts that they "normally would have earned" had a violation not occurred (emphasis added). Phelps Dodge Corp. v. National Labor Relations Bd., 313 U.S. 177, 197, 61 S.Ct. 845, 85 L.Ed. 1271 (1941). That can be for wages earned but unfairly compensated, as in cases of unequal pay, or for wages not earned, due to the failure to hire because of discrimination or the failure to provide notice, as under the WARN Act. See 4 N.P. Lareau, Labor and Employment Law §§ 98.06, 109.03, 114.02, 125.03, 174.02 (2018) (discussing back pay awards for violations of various Federal civil rights, antidiscrimination, and employee protection statutes). Regardless, back pay is not the same as wages earned but not paid under the Wage Act, which has its own particular and precise requirements.

In sum, an employee who is terminated with inadequate notice and entitled to WARN Act damages for the amounts he or she would have earned had proper notice been provided has not "earned wages" for work actually performed and presently due as required by the Wage Act. We thus hold that WARN Act damages are not wrongfully withheld wages for which the officers can be held liable under the Wage Act.

b. Breach of fiduciary duties. The employees further argue that the officers committed a breach of their fiduciary duties to the company by causing it to incur WARN Act liability. As creditors of the company, the employees argue that they have standing to bring this claim derivatively.

It is true that, under Delaware law, "the creditors of an insolvent corporation have standing to maintain derivative claims against directors on behalf of the corporation for breaches of fiduciary duties." North Am. Catholic Educ.Programming Found., Inc. v. Gheewalla, 930 A.2d 92, 101 (Del. 2007). A court applying Delaware law has allowed such a suit to be brought by a bankruptcy trustee alleging harm to a company arising out of director misconduct that resulted in WARN Act violations. See In re Golden Guernsey Dairy, LLC, 548 B.R. 410, 413 (Bankr. D. Del. 2015). But "individual creditors of an insolvent corporation have no right to assert direct claims for breach of fiduciary duty against corporate directors." North Am. Catholic Educ. Programming Found., Inc., supra at 103. A claim that a corporate officer committed a "breach of a duty owed directly to the plaintiff" is a direct suit, not a derivative one. Branch v. Ernst & Young U.S., No. Civ. A. 93-10024-RGS, 1995 WL 791941 (D. Mass. Dec. 22, 1995).

As the Delaware Chancery Court has cautioned, "fiduciary duty law" in the creditor context should be applied "quite cautiously, to avoid unduly benefiting creditors by enabling them to recover in equity when they could not prevail" on other legal theories asserted directly against defendants. Prod. Resources Group, L.L.C. v. NCT Group, Inc., 863 A.2d 772, 801 n.88 (Del. Ch. 2004). Accordingly, we conclude that the employees' breach of fiduciary duty claim is improperly brought: while styled as a derivative claim, it simply repackages the employees' primary argument that the officers committed a breach of duties owed to them under the WARN Act. By its express terms, the WARN Act is the exclusive remedy for WARN Act violations. See 29 U.S.C. § 2104(b). We therefore affirm dismissal of the claim against the officers for breach of fiduciary duty.

3. Conclusion. For the foregoing reasons, we affirm the Superior Court judge's grant of the officers' motion to dismiss.

So ordered.

      One defendant did not work at the company, but was named only with respect to the fraudulent conveyance claim. The other defendants were the president/chief executive officer, chief financial officer, and corporate secretary.

      We acknowledge the amicus briefs of the Greater Boston Chamber of Commerce; the New England Legal Foundation; and Murphy, Hesse, Toomey & Lehane, LLP, in support of the defendants.

      The company offered pre- and postnatal classes and services and sold related products for children and parents.

      Exceptions to the sixty-day notice period apply when (1) the employer, under certain circumstances, was actively seeking capital at the time when the notice should have been given; (2) business circumstances that were not foreseeable caused the plant closing or mass layoff without sixty days' notice; (3) a natural disaster caused the plant closing or mass layoff without sixty days' notice. 29 U.S.C. § 2102(b) (2018).

      The employees voluntarily dismissed several counts of their original complaint.

      The employees rely on Federal bankruptcy cases classifying WARN Act damages as wages for purposes of bankruptcy creditor priority. But these cases have concluded that "back pay under WARN constitutes wages for the purposes of the Bankruptcy Code" because the Code explicitly includes severance pay in the definition of "wages," see 11 U.S.C. § 507(a)(4)(A) (2018), and because WARN Act damages may be regarded as "statutory severance pay." In re Hanlin Group, Inc., 176 B.R. 329, 334 (Bankr. D.N.J. 1995). By contrast, severance pay is not mentioned in the Wage Act, and it has not been deemed an "earned wage" under the act. See Prozinski v. Northeast Real Estate Servs., LLC, 59 Mass.App.Ct. 599, 603-605, 797 N.E.2d 415 (2003) (holding that severance pay is not covered by Wage Act in part because it is not expressly included in statute). See also Mui v. Massachusetts Port Auth., 478 Mass. 710, 713, 89 N.E.3d 460 (2018) (citing Prozinski, supra, for its holding that Wage Act does not cover severance pay); Weems v. Citigroup Inc., 453 Mass. 147, 151, 900 N.E.2d 89 (2009) (same).

      A derivative suit is "a suit by the corporation, asserted by the stockholders on its behalf, against those liable to it. ... The fundamental purpose of a derivative action is to enforce a corporate right that the corporation has refused for one reason or another to assert." R.F. Balotti & J.F. Finkelstein, Delaware Law of Corporations and Business Organizations § 13.10 (3d ed. 2018 Supp.).

      Under G. L. c. 156D, § 7.47, we apply the substantive law of the jurisdiction where a foreign corporation is incorporated -- in this case, Delaware -- to a derivative proceeding.

      Because we affirm the dismissal of the Wage Act and breach of fiduciary duty claims, we also affirm the dismissal of the fraudulent conveyance claim.


author: DITKOFF, J.

text:
    UBS FINANCIAL SERVICES, INC. v. Donna M. ALIBERTI.
    No. 17-P-1169
    Appeals Court of Massachusetts, Suffolk..
    Argued May 7, 2018 Decided October 4, 2018
    Carmen A. Frattaroli, Salem, for the defendant.
    John K. Wells, Boston, for the plaintiff.
    Present: Trainor, Ditkoff, & Wendlandt, JJ.
   DITKOFF, J.

The defendant and plaintiff in counterclaim, Donna M. Aliberti, alleges that she was the sole properly designated beneficiary of three individual retirement accounts (IRAs) owned by Patrick Kenney (Kenney), her former romantic partner, and held by the plaintiff, UBS Financial Services, Inc. (UBS). She alleges that, after Kenney died, UBS distributed funds from two of the IRAs to improper claimants, while ignoring her claims. Even after the only other claimant dropped his claim to the largest IRA, UBS waited more than three months before distributing the uncontested proceeds to Aliberti. She now appeals from a judgment on the pleadings by a Superior Court judge dismissing her amended counterclaim against UBS as to all three IRAs. Concluding that a custodian holding an IRA has duties under New York law, both as a fiduciary and in contract, to a beneficiary of the account, we reverse the judgment for UBS on Aliberti's claims of breach of contract, breach of fiduciary duty, and violation of G. L. c. 93A, § 2. We otherwise affirm the judgment for UBS on Aliberti's amended counterclaim.

1. Background. The essential facts are drawn from the pleadings and the documents attached to the pleadings or incorporated by reference, see State Room, Inc. v. MA-60 State Assocs., L.L.C., 84 Mass. App. Ct. 244, 245, 248, 995 N.E.2d 807 (2013), and we assume the allegations pleaded by Aliberti, as the party opposing judgment on the pleadings, are true. See Merriam v. Demoulas Super Mkts., Inc., 464 Mass. 721, 723, 985 N.E.2d 388 (2013).

Prior to his death, Kenney owned three IRAs held by UBS: (1) one with an approximate value of $31,000; (2) one with an approximate value of $18,000; and (3) one with an approximate value of $276,000. The IRAs were maintained pursuant to a "UBS Client Relationship Agreement" (client agreement), a contract between UBS and Kenney designating UBS as custodian of the IRAs without discretionary authority.

Under the client agreement, UBS obligated itself to transfer any funds to the beneficiary or beneficiaries previously named by Kenney upon Kenney's death. When he opened them in 2008, Kenney named Aliberti the sole beneficiary for all three IRAs. Margaret Kenney, a financial adviser at UBS and the former sister-in-law of Kenney, managed Kenney's IRAs.

In November, 2013, after Kenney expressed a desire to name additional beneficiaries, UBS sent Kenney beneficiary designation update forms (update forms) for the IRAs. Kenney returned update forms for the two smaller IRAs, but not for the largest. The update forms named Craig Gillespie as the primary beneficiary with Aliberti, Aliberti's son, and Kenney's niece as contingent beneficiaries. Inconsistent with these designations, the forms also dictated that all four beneficiaries were each to receive a twenty-five per cent share of the proceeds. (The update form instructions required that the primary beneficiary shares total one hundred per cent and that the contingent beneficiary shares total one hundred per cent.) UBS requested that Kenney clarify whether all four individuals were intended as primary beneficiaries and sent him another set of update forms to fill out correctly. UBS never received properly completed update forms for the two smaller IRAs. Kenney unexpectedly died on December 2, 2013.

On December 17, 2013, Aliberti contacted Margaret Kenney concerning the IRAs and requested that all funds be distributed to her as the sole beneficiary. Instead, Margaret Kenney responded with a series of text messages, including, "How big of a whore are you," "You are the most worst piece of filth I have ever encountered," and, "Are you so eager to grab the money. Did you even notice his death certificate is wrong? Oh no you were too busy ransacking."

On December 23, 2013, UBS received a letter from Gillespie's attorney stating that Gillespie was an intended beneficiary of the largest IRA and that he intended to take legal action to determine the matter. The letter also advised UBS not to make any distribution from that IRA pending resolution of the dispute. Meanwhile, on January 9, 2014, Aliberti complained to UBS about the text messages she received from Margaret Kenney. UBS responded on February 4, 2014, to inform Aliberti her concerns were being reviewed and UBS would follow up with her. When no update came, Aliberti complained again on February 24, 2014, and was assured by UBS an update would be forthcoming. Although Margaret Kenney was removed from the management of the IRAs, Aliberti received no further communication or information from UBS concerning her complaints or the IRAs.

In March and April of 2014, UBS distributed the proceeds from the two smaller IRAs equally among the four beneficiaries named on the incorrectly completed update forms (including Aliberti). Beyond that, UBS continued to ignore Aliberti's claims to all three IRAs and, in particular, provided no information on the status of the largest IRA where she remained the sole designated beneficiary.

On May 2, 2014, Aliberti's attorney sent UBS a letter requesting documents related to the disposition of the three IRAs. UBS did not respond at first and produced the requested materials only after a subpoena was issued. Further communications from Aliberti's attorney and Kenney's estate went unheeded by UBS for over one year, until UBS responded on June 15, 2015, to a demand letter from Aliberti's attorney outlining claims against UBS under G. L. c. 93A.

UBS eventually filed suit in the Superior Court on August 4, 2015, to determine the beneficiaries of the largest IRA by interpleading Gillespie and Aliberti. Gillespie and Aliberti filed answers and asserted counterclaims against UBS. Aliberti also asserted a cross claim against Gillespie. The three-party dispute continued until March 10, 2016, when all claims brought by Gillespie were dismissed with prejudice by agreement of the parties. No competing claims remained on the largest IRA, yet UBS did not distribute the funds to Aliberti until more than three months later, on July 1, 2016.

Aliberti filed an amended counterclaim against UBS on July 21, 2016. The amended counterclaim alleges multiple counts of breach of contract (counts one, four, and seven), breach of fiduciary duty (counts two, five, and eight), intentional infliction of emotional distress (counts three, six, and nine), and violation of G. L. c. 93A, § 2, against UBS for its conduct in connection with all three IRAs (count ten). UBS filed an amended complaint on September 1, 2016, arguing the distribution mooted Aliberti's claims on the largest IRA and alleging abuse of process and malicious prosecution, based both on Aliberti's initial and amended counterclaim. Then, on October 25, 2016, UBS moved for judgment on the pleadings on Aliberti's amended counterclaim, which was duly opposed by Aliberti. A Superior Court judge granted judgment on the pleadings for UBS on all counts of the amended counterclaim on June 26, 2017, and Aliberti filed a notice of appeal.

2. Standard of review. A motion for judgment on the pleadings under Mass. R. Civ. P. 12 (c), 365 Mass. 754 (1974), "is 'actually a motion to dismiss ... [that] argues that the complaint fails to state a claim upon which relief can be granted.' " Martinez v. Waldstein, 89 Mass. App. Ct. 341, 345, 49 N.E.3d 245 (2016), quoting Jarosz v. Palmer, 436 Mass. 526, 529, 766 N.E.2d 482 (2002). "We review de novo the judge's order allowing a motion for judgment on the pleadings under rule 12 (c)." Wheatley v. Massachusetts Insurers Insolvency Fund, 456 Mass. 594, 600, 925 N.E.2d 9 (2010). We accept as true the facts from the pleadings and otherwise incorporated by the pleadings, see Merriam, 464 Mass. at 723, 985 N.E.2d 388, and we "draw every reasonable inference in favor of" the nonmoving party. Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676, 940 N.E.2d 413 (2011).

3. Breach of contract. Contrary to UBS's argument, the client agreement forms the basis of all counts of breach of contract alleged in Aliberti's amended counterclaim. The client agreement was attached to UBS's original complaint, is referenced in the pleadings and incorporated in the record, and may be considered in deciding whether Aliberti's amended counterclaim warranted dismissal. See A.L. Prime Energy Consultant, Inc. v. Massachusetts Bay Transp. Auth., 479 Mass. 419, 421, 95 N.E.3d 547 (2018), quoting Schaer v. Brandeis Univ., 432 Mass. 474, 477, 735 N.E.2d 373 (2000) (considering facts from "matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint" with facts alleged in pleadings on motion to dismiss).

It is also reasonable to infer the contractual relationship alleged in Aliberti's pleadings refers to that very client agreement. See Fraelick v. PerkettPR, Inc., 83 Mass. App. Ct. 698, 702, 989 N.E.2d 517 (2013) (drawing "every reasonable inference in [nonmovant's] favor" and accepting "the sum and substance of the factual allegations contained in the [pleadings]"). To conclude otherwise by discounting the client agreement that is within the record and essential to the case ignores the elephant in the room. That UBS now implies it does not exist strains credulity, especially given that UBS attached the client agreement to its own complaint in the first place. See id. at 700-701 & n.3, 989 N.E.2d 517 (considering contract included in record by moving party and relied upon in nonmoving party's pleadings). Moreover, Aliberti specifically refers to the obligations owed by UBS under the client agreement as the basis of her amended counterclaim. See Vranos v. Skinner, 77 Mass. App. Ct. 280, 282 n.3, 930 N.E.2d 156 (2010) (judge properly considered documents that "were cited in the complaint, were central to the plaintiff's claims, and were of undisputed authenticity"). Because it is in the record and the "sum and substance" of Aliberti's claims, Fraelick, supra, at 702, 989 N.E.2d 517, we consider the client agreement in determining whether the pleadings state a claim upon which relief may be granted.

Pursuant to the client agreement, any dispute arising thereunder is governed by New York law, which we apply accordingly in reviewing the sufficiency of the pleadings. See Realty Fin. Holdings, LLC v. KS Shiraz Manager, LLC, 86 Mass. App. Ct. 242, 246-247, 18 N.E.3d 350 (2014) ("Massachusetts will give effect to a choice of law provision in a contract dispute, if to do so is fair and reasonable"). Breach of contract in New York (as in Massachusetts) requires (1) the existence of a valid contract; (2) the breach of that contract; and (3) resultant damages. Second Source Funding, LLC v. Yellowstone Capital, LLC, 144 A.D.3d 445, 445-446, 40 N.Y.S.3d 410 (N.Y.A.D. 2016). With the existence of a contract adequately alleged, Aliberti also alleged the additional elements as required.

Aliberti was a designated beneficiary, and the client agreement obligated UBS to distribute all IRA funds to the designated beneficiaries upon Kenney's death. Kenney died, and as pleaded, the funds were not timely distributed. On the counts of the amended counterclaim regarding the two smaller IRAs (counts one and four), Aliberti alleges UBS never received valid update forms to warrant its failure to distribute the entirety of the proceeds in those IRAs to her, and she thereby continues to suffer losses.

For the largest IRA, where UBS never received anything from Kenney naming anyone other than Aliberti as the designated beneficiary, Aliberti alleges UBS had no lawful excuse or justification to delay distributing the funds. Considering the time value of money and the fact that no investment decisions were made regarding the largest IRA for over two and one-half years, the facts alleged in the pleadings support the inference that Aliberti likely was damaged from the delay in distributing those funds. In any event, in New York "[n]ominal damages are always available in breach of contract action[s]," Schleifer v. Yellen, 158 A.D.3d 512, 513, 71 N.Y.S.3d 420 (N.Y.A.D. 2018), quoting Kronos, Inc. v. AVX Corp., 81 N.Y.2d 90, 95, 595 N.Y.S.2d 931, 612 N.E.2d 289 (1993), including for the unreasonable delay in disbursement and the failure to provide information on the accounts. See Schleifer, supra (affirming denial of motion to dismiss contract claims based on breaching party's failure to make payments on time and disclose required financial statements).

Furthermore, Aliberti was an intended beneficiary of the client agreement. See Commissioner of the Dep't of Social Servs. of N.Y. v. New York-Presbyterian Hosp., 164 A.D.3d 93, 99-100, 82 N.Y.S.3d 390 (1st Dept. 2018) ("[A]n agreement under which a benefit is to be provided directly to a third party generally establishes an intended third-party beneficiary status"). Aliberti could properly bring these claims against UBS for breaching its contractual obligations to her as an intended third-party beneficiary. See Vestal v. Pontillo, 158 A.D.3d 1036, 1039 & n.1, 72 N.Y.S.3d 610 (N.Y.A.D. 2018) ("Plaintiff was the intended beneficiary of the [life insurance] policy from the moment when decedent applied for the policy," thus providing her with standing "as a third-party beneficiary with regard to her claims sounding in contract"). Accord Tokhtaman v. Human Care, LLC, 149 A.D.3d 476, 477, 52 N.Y.S.3d 89 (N.Y.A.D. 2017) ("Defendants are not entitled to dismissal of the breach of contract claim. Plaintiff has standing to sue as a third-party beneficiary of the alleged contracts requiring defendants to pay plaintiff"). Accordingly, Aliberti sufficiently pleaded the remaining elements of breach and resulting damages on the counts alleging breach of contract.

4. Breach of fiduciary duty. To state a claim for breach of fiduciary duty, a plaintiff must "allege that (1) [the breaching party] owed [her] a fiduciary duty, (2) ... [the breaching party] committed misconduct, and (3) [the plaintiff] suffered damages caused by that misconduct." Burry v. Madison Park Owner LLC, 84 A.D.3d 699, 700, 924 N.Y.S.2d 77 (N.Y.A.D. 2011). Accord NRT New York, LLC v. Morin, 147 A.D.3d 589, 589, 48 N.Y.S.3d 56 (N.Y.A.D. 2017). In both New York and Massachusetts, "brokers for nondiscretionary accounts do not owe clients a fiduciary duty." Celle v. Barclays Bank P.L.C., 48 A.D.3d 301, 302, 851 N.Y.S.2d 500 (N.Y.A.D. 2008). Kenney's accounts were nondiscretionary and thereby imposed no fiduciary duty on UBS with respect to him.

See Barrett v. Grenda, 154 A.D.3d 1275, 1278, 62 N.Y.S.3d 673 (N.Y.A.D. 2017) (financial institution holding self-directed IRA "owed no fiduciary duty to plaintiff" owning the account). That is not so, however, for Aliberti as a beneficiary.

Rather, "[a] fiduciary relationship 'exists between two persons when one of them is under a duty to act for ... the benefit of another upon matters within the scope of the relation.' " EBC I, Inc. v. Goldman, Sachs & Co., 5 N.Y.3d 11, 19, 799 N.Y.S.2d 170, 832 N.E.2d 26 (2005), quoting Restatement (Second) of Torts § 874 comment a. The accounts at issue were IRAs, which by definition are "trust[s] created or organized in the United States for the exclusive benefit of an individual or his beneficiaries." 26 U.S.C. § 408(a) (2012). Although 26 U.S.C. § 408 does not create any private right of action for Aliberti here, it establishes UBS as a trustee holding the IRAs for the exclusive benefit of Aliberti following Kenney's death and in accordance with certain contractual obligations. A trustee is a fiduciary under New York law, see N.Y. Estates, Powers and Trusts Law § 1-2.7, which at the minimum suggests a common-law fiduciary duty owed to Aliberti. See EBC I, Inc., supra at 21, 799 N.Y.S.2d 170, 832 N.E.2d 26.

Here, the essential elements of a fiduciary relationship -- reliance, de facto control, and dominance, see People v. Coventry First LLC, 13 N.Y.3d 108, 115, 886 N.Y.S.2d 671, 915 N.E.2d 616 (2009), are most telling. UBS exercised complete control over the IRAs following Kenney's death, and Aliberti -- a named beneficiary -- was entirely reliant on UBS for access to the funds and any information about them. This alone is sufficient to establish a fiduciary relationship. See Shurka v. Shurka, 100 A.D.3d 566, 566, 955 N.Y.S.2d 12 (N.Y.A.D. 2012) ("appellant has administered and controlled the payment of the promissory notes on which defendant is a payee, thus creating a fiduciary relationship between defendant and appellant").

As a fiduciary, UBS was obligated to administer the IRAs for the exclusive benefit of Aliberti (assuming the truth of Aliberti's allegation that she was the only proper beneficiary) while acting fairly and in her best interests. See EBC I, Inc., 5 N.Y.3d at 19-20, 799 N.Y.S.2d 170, 832 N.E.2d 26. Accord McDermott v. Regan, 82 N.Y.2d 354, 361, 604 N.Y.S.2d 890, 624 N.E.2d 985 (1993) ("fiduciary role as trustee" requires acting in beneficiaries' "best interests in exercising its limited oversight of the funds");

Matter of Lawrence, 24 N.Y.3d 320, 344, 998 N.Y.S.2d 698, 23 N.E.3d 965 (2014) (breach occurs when any fiduciary "acts in his own interests rather than in the best interests of the [beneficiary]").

More specifically, UBS was required to timely distribute the IRA proceeds to Aliberti upon Kenney's death and to keep her otherwise informed of their status. See Glassman v. Weinberg, 154 A.D.3d 407, 409, 62 N.Y.S.3d 54 (N.Y.A.D. 2017) (trial court properly sustained "counterclaim's allegation that [plaintiff's] efforts to delay turnover of the escrowed funds were contrary to his fiduciary duty"). See also Shurka, 100 A.D.3d at 566-567, 955 N.Y.S.2d 12 ("The court also properly ordered [fiduciary controlling payments] to produce documents related to [company holding payment funds], and to pay to defendant her proportionate past and future payments on the promissory notes, which it appears [fiduciary] has withheld").

Accepting the allegations in Aliberti's amended counterclaim as true, see Curtis, 458 Mass. at 676, 940 N.E.2d 413, UBS intentionally did not distribute the proceeds in a timely manner. At the very least, UBS had a basic "duty to perform its ministerial functions with due care," see Cece & Co. v. U.S. Bank Nat'l Ass'n, 153 A.D.3d 275, 278-280, 60 N.Y.S.3d 5 (N.Y.A.D. 2017) (commercial trustee owed duty of care to securities' owners even in absence of fiduciary relationship), which it likewise failed to do by unreasonably refusing to take reasonably prompt measures to adjudicate the dispute concerning the proper beneficiary of the largest IRA and then unreasonably delaying distribution even once the dispute was resolved.

The claims that UBS breached its fiduciary duty to a beneficiary of the IRAs are neither conclusory, contrast Dineen v. Wilkens, 155 A.D.3d 607, 609, 64 N.Y.S.3d 56 (N.Y.A.D. 2017), nor are they necessarily duplicative in substance or in damages to those of breach of contract. Compare Vandashield Ltd. v. Isaacson, 146 A.D.3d 552, 555, 46 N.Y.S.3d 18 (N.Y.A.D. 2017), quoting Don Buchwald & Assocs. v. Rich, 281 A.D.2d 329, 330, 723 N.Y.S.2d 8 (N.Y.A.D. 2001) (punitive damages allowed for breach of fiduciary duty where claimant alleged "intentional or deliberate wrongdoing"), with International Plaza Assocs., L.P. v. Lacher, 63 A.D.3d 527, 528, 881 N.Y.S.2d 414 (N.Y.A.D. 2009), quoting Fulton v. Allstate Ins. Co., 14 A.D.3d 380, 381, 788 N.Y.S.2d 349 (N.Y.A.D. 2005) ("Punitive damages are not recoverable for an ordinary breach of contract"). Aliberti, in short, sufficiently pleaded claims in the counts of her amended counterclaim alleging breach of fiduciary duty.

5. Intentional infliction of emotional distress. The sole basis for Aliberti's allegations of intentional infliction of emotional distress is a conclusory claim stating she suffered "extreme emotional distress." That is not enough to survive a motion for judgment on the pleadings for the counts alleging intentional infliction of emotional distress. See Polay v. McMahon, 468 Mass. 379, 388, 10 N.E.3d 1122 (2014) (affirming dismissal of claim containing "only the conclusory statement that 'the emotional distress suffered by the [p]laintiff was severe and of such a nature that no reasonable person could be expected to endure it' ").

6. General Laws c. 93A, § 2, claim. Section 2 of G. L. c. 93A prohibits unfair and deceptive acts or practices in the conduct of any trade or commerce. There is no rule "that G. L. c. 93A claims invariably are prohibited against trustees or other fiduciaries," only "that violations of c. 93A must take place in the conduct of 'trade or commerce.' "

Quinton v. Gavin, 64 Mass. App. Ct. 792, 797, 835 N.E.2d 1124 (2005), quoting G. L. c. 93A, § 2 (a ). Consequently, UBS "may not rely on [its] status as trustee to shield [itself] from liability under G. L. c. 93A." Gavin, supra at 799, 835 N.E.2d 1124.

Like in Quinton, UBS became a trustee here by providing financial services "to members of the public in the ordinary course of business," 64 Mass. App. Ct. at 799, 835 N.E.2d 1124, and thereby engaged in commercial practices "in connection with professional services ... sold in the marketplace." Baker v. Wilmer Cutler Pickering Hale & Dorr LLP, 91 Mass. App. Ct. 835, 851, 81 N.E.3d 782 (2017). One of its customers was Kenney, who entered into a commercial transaction with UBS under the client agreement. See Quinton, supra at 798-799, 835 N.E.2d 1124. This is sufficient to supply the "trade or commerce" requirement of G. L. c. 93A, § 2. See Selmark Assocs., Inc. v. Ehrlich, 467 Mass. 525, 549, 5 N.E.3d 923 (2014) (requiring commercial transaction in business context for c. 93A claims); Barron v. Fidelity Magellan Fund, 57 Mass. App. Ct. 507, 513-514, 784 N.E.2d 634 (2003) (c. 93A claim by account beneficiary properly actionable against brokerage company).

The amended counterclaim also adequately alleged unfair or deceptive acts or practices on the part of UBS. "Chapter 93A does not define what constitutes an 'unfair or deceptive act or practice,' " Kattar v. Demoulas, 433 Mass. 1, 13, 739 N.E.2d 246 (2000) ; instead, "an act or practice is unfair if it falls within at least the penumbra of some common-law, statutory, or other established concept of unfairness; is immoral, unethical, oppressive, or unscrupulous; and causes substantial injury to consumers." Exxon Mobil Corp. v. Attorney Gen., 479 Mass. 312, 316, 94 N.E.3d 786 (2018), quoting Walsh v. TelTech Sys., Inc., 821 F.3d 155, 160 (1st Cir. 2016).

In Barron, the plaintiff was the beneficiary of a mutual fund account, 57 Mass. App. Ct. at 508, 784 N.E.2d 634, which was wrongly surrendered and liquidated by the account custodian -- without notice to the owners or the beneficiary -- because the custodian failed to maintain adequate records. Id. at 508 n.3, 511, 784 N.E.2d 634. When the beneficiary requested his account be reinstated, the custodian refused; the beneficiary was forced to file suit, and it took years to recoup his losses. Id. at 509-510, 784 N.E.2d 634. We concluded that the custodian's conduct in that case was not only actionable as unfair or deceptive under G. L. c. 93A, § 2, see Barron, supra at 514, 516 n.20, 784 N.E.2d 634, but also that the claims for attorney's fees and costs could proceed. Id. at 520, 784 N.E.2d 634. Based on the pleadings here, UBS likewise (1) denied Aliberti the funds to which she was entitled; (2) for multiple years; (3) without good reason; (4)

until she was forced to take legal action and incur unnecessary costs and fees. Applying Barron to the case before us, Aliberti has a similarly actionable claim under G. L. c. 93A, § 2.

Moreover, there are "additional facts ... exacerbating the unfairness," Brewster Wallcovering Co. v. Blue Mountain Wallcoverings, Inc., 68 Mass. App. Ct. 582, 606, 864 N.E.2d 518 (2007), in this case. UBS actively ignored Aliberti for months despite repeated complaints and requests for information, see id. (defendant "could rarely be reached and did not return [plaintiff's] frequent telephone calls and letters requesting resolution of the delay problems with any regularity, often took weeks to respond to [plaintiff's] inquiries, and sometimes stopped communicating at all, with no adequate or even plausible explanations for their lack of responsiveness"), and UBS later filed an amended complaint against Aliberti alleging abuse of process and malicious prosecution in response to her assertion of her rights.

Furthermore, we are required at this stage to assume this conduct occurred in breach of a fiduciary duty as well as contractual obligations to Aliberti. See State Room, Inc., 84 Mass. App. Ct. at 248, 995 N.E.2d 807. That is sufficient to plead unfair or deceptive acts under G. L. c. 93A, § 2. See Brewster Wallcovering Co., 68 Mass. App. Ct. at 605-606, 864 N.E.2d 518 ("finding that [party] breached the covenant of good faith and fair dealing ... would provide an independently sufficient basis for the finding that it violated c. 93A"). Accord Baker, 91 Mass. App. Ct. at 850-851, 81 N.E.3d 782. In Baker, for example, minority members of a limited liability company alleged attorneys representing the company violated their fiduciary duty by orchestrating a freeze-out on behalf of majority members. Id. at 837, 81 N.E.3d 782. We reversed the dismissal of the plaintiffs' G. L. c. 93A claims because the specter of fiduciary breach was sufficient to show the defendants "engaged in unfair or deceptive acts or practices." Baker, supra at 851, 81 N.E.3d 782. See McCarthy v. Landry, 42 Mass. App. Ct. 488, 491, 678 N.E.2d 172 (1997) (because "complaint sets forth facts sufficient to allege such a [fiduciary] duty, we further conclude that their G. L. c. 93A claim also was improperly dismissed and may be reexamined on remand"). For the same reason and those previously discussed, the count under G. L. c. 93A, § 2, was sufficient to withstand judgment on the pleadings.

7. Conclusion. So much of the judgment as dismisses the counts of Aliberti's amended counterclaim against UBS for breach of contract, breach of fiduciary duty, and unfair or deceptive trade practices in violation of G. L. c. 93A, § 2, is reversed. The judgment is otherwise affirmed.

So ordered.

      Specifically, the client agreement stated, "At your death, your IRA will be transferred to the beneficiary or beneficiaries you have designated...."

      We refer hereafter to Margaret Kenney by her full name to avoid confusion.

      The record does not reveal how this subpoena was issued.

      The funds from the largest IRA were distributed in accordance with an agreement between UBS and Aliberti releasing UBS from liability specific to those funds alone. Aliberti expressly reserved all other claims, including those depending upon or "related to the conduct of UBS and/or its employees in the handling of [the largest IRA], as well as all other claims in the proposed Amended Counterclaim."

      Aliberti also sought to amend her pleadings to bring claims against Margaret Kenney, but the judge denied this request because Margaret Kenney was not a party to the action. Aliberti raises no challenge to this on appeal.

      Shortly thereafter, UBS voluntarily dismissed its claims against Aliberti without prejudice, and judgment entered accordingly. Although Aliberti's notice of appeal should have been filed after the final judgment, we have the discretion to hear an appeal where a premature notice of appeal was cured by a final judgment. See ZVI Constr. Co. v. Levy, 90 Mass. App. Ct. 412, 418, 60 N.E.3d 368 (2016).

      Indeed, UBS properly conceded the client agreement's existence and validity at oral argument.

      Accord Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 690, 46 N.E.3d 24 (2016).

      Accord Patsos v. First Albany Corp., 433 Mass. 323, 333, 741 N.E.2d 841 (2001) (generally, broker does not owe fiduciary duty to customer "[w]here the account is 'non-discretionary,' meaning that the customer makes the investment decisions and the stockbroker merely receives and executes a customer's orders").

      See Ciampa v. Bank of Am., 88 Mass. App. Ct. 28, 31 n.9, 35 N.E.3d 765 (2015) ("During the life of the settlor, an IRA is essentially a revocable, inter vivos trust" that becomes irrevocable following death).

      A qualifying IRA requires a written instrument providing that, inter alia, funds held in a fiduciary capacity awaiting distribution may not be held "undistributed any longer than is reasonable for the proper management of the account." 26 C.F.R. § 1.408-2(e)(5)(iv). See Federal Administrative Practice § 10531[2] (West Supp. 2018) ("The IRA agreement must provide that if the IRA owner dies before the entire interest in the IRA has been distributed, the remaining interest must be distributed to the beneficiary or beneficiaries in accordance with certain rules"). Although the regulations recognize limits to the extent of fiduciary responsibility for trustees of nondiscretionary accounts like UBS, that requires "clear and convincing proof that such requirements are not germane, under all the facts and circumstances." 26 C.F.R. § 1.408-2(e)(6)(i)(A). See Federal Administrative Practice § 10527 ("A custodial account may be established instead of a trust, in which case the custodian must meet the qualifications of a trustee. The custodial account will then be treated as a trust and the custodian as a trustee").

      Chapter 93A thus precludes trustee claims involving "private disputes between parties to the same business venture," Quinton, 64 Mass. App. Ct. at 797, 835 N.E.2d 1124, which is not the case here. Compare Lattuca v. Robsham, 442 Mass. 205, 209, 812 N.E.2d 877 (2004) (barring c. 93A claim against cotrustee brought by business partner), with Quinton, supra at 797-799, 835 N.E.2d 1124 (affirming judgment on c. 93A claim brought by trust beneficiary and settlors against trustee providing trust arrangements as part of financial management service).

      It is irrelevant that Aliberti was a third-party beneficiary of the client agreement; she has standing nonetheless under the statute. See Kattar v. Demoulas, 433 Mass. 1, 14-15, 739 N.E.2d 246 (2000) ("Parties need not be in privity for their actions to come within the reach of c. 93A").

      Notably, we reached this conclusion even after the custodian had repaid the beneficiary for the actual value of the lost account funds. See Barron, 57 Mass. App. Ct. at 509, 784 N.E.2d 634.

      "[T]he practice of law constitutes 'trade or commerce' for purposes of liability under c. 93A," Baker, 91 Mass. App. Ct. at 850, 81 N.E.3d 782, quoting Brown v. Gerstein, 17 Mass. App. Ct. 558, 570, 460 N.E.2d 1043 (1984), in the same manner as being trustee in the context of a financial services agreement. See Quinton, 64 Mass. App. Ct. at 799, 835 N.E.2d 1124 ("We also fail to see why, having sold his trustee services in the marketplace to consumers, [the defendant] should be treated any differently from similarly situated business professionals [including attorneys and stock brokers] who are subject to the reach of G. L. c. 93A").

      UBS's request for attorney's fees on the ground that Aliberti's appeal is frivolous is, of course, denied. Contrary to UBS's assertion, it is not improper to raise "the same arguments that were raised below." Rather, the arguments that were raised in the Superior Court are the ones preserved for appeal. See Cannonball Fund, Ltd. v. Dutchess Capital Mgt., LLC, 84 Mass. App. Ct. 75, 83 n.20, 993 N.E.2d 350 (2013).


author: AGNES, J.

text:
    COMMONWEALTH v. Erickson RESENDE.
    No. 16-P-1532
    Appeals Court of Massachusetts, Plymouth..
    Argued January 16, 2018. Decided October 5, 2018.
    David Rassoul Rangaviz, Committee for Public Counsel Services, for the defendant.
    Johanna S. Black, Assistant District Attorney, for the Commonwealth.
    Present: Vuono, Agnes, & McDonough, JJ.
   AGNES, J.

After a jury-waived trial, the defendant, Erickson Resende, was convicted of unlawful possession of a firearm, G. L. c. 269, § 10 (a ) ; unlawful possession of a large capacity firearm, G. L. c. 269, § 10 (m ) ; and unlawful possession of a loaded firearm, G. L. c. 269, § 10 (n ). The judge vacated the conviction of possession of a firearm, G. L. c. 269, § 10 (a ), as a lesser included offense of possession of a large capacity firearm, G. L. c. 269, § 10 (m ).

On appeal, the defendant argues that his motion to suppress the firearm was erroneously denied because the police did not have reasonable suspicion to conduct the investigatory stop that resulted in his arrest. The defendant further argues that insufficient evidence was admitted to prove that he knew the firearm was loaded, or that he knew the firearm was a large capacity firearm.

We conclude that the investigatory stop was justified under the reasonable suspicion standard. We also conclude that the evidence presented to prove that the defendant knew the firearm was loaded was sufficient based on the interpretation of G. L. c. 269, § 10 (n ), set forth in Commonwealth v. Brown, 479 Mass. 600, 97 N.E.3d 349 (2018), decided while this appeal was pending. However, because the record indicates that the judge did not correctly instruct himself on the law with regard to this charge, the conviction under § 10 (n ) must be vacated. Finally, we conclude that the evidence presented to prove that the defendant knew the firearm was a large capacity firearm was insufficient based on the interpretation of G. L. c. 269, § 10 (m ), set forth in Commonwealth v. Cassidy, 479 Mass. 527, 96 N.E.3d 691 (2018), also decided while this appeal was pending. However, because the judge vacated the defendant's conviction for possession of a firearm under G. L. c. 269, § 10 (a ), solely because it was a lesser included offense of possession of a large capacity firearm under G. L. c. 269, § 10 (m ), we order the former conviction reinstated.

Background. 1. Suppression hearing. The judge found the following facts, which we supplement with additional facts based on the testimony of the only witness, Officer David Delehoy, whose testimony was implicitly credited by the judge. See Commonwealth v. Isaiah I., 448 Mass. 334, 337, 861 N.E.2d 404 (2007), S.C., 450 Mass. 818, 882 N.E.2d 328 (2008).

At approximately 8 P.M. on October 25, 2013, the Brockton police department received a 911 call relaying a potential incident of domestic violence. The caller identified himself as "Edwin" and provided his address, 139 Colonel Bell Drive, and telephone number. He stated that an individual outside was yelling for his girl friend and issuing unspecified threats, and that the individual had mentioned a "gun." The caller described the individual as a light-skinned black male wearing a green jacket and riding a bicycle.

Officer Delehoy, along with other members of the Brockton police department, responded to the area of 139 Colonel Bell Drive. Officer Delehoy was in uniform and driving a marked police cruiser. He characterized the location as a "hot spot" of violent crime and illegal activity. Upon arriving on Colonel Bell Drive, Officer Delehoy saw a light-skinned black male, later identified as the defendant, wearing a green jacket and walking through some trees toward a bicycle lying on the ground.

There were no other pedestrians or bicyclists in the immediate vicinity.

Officer Delehoy stopped his cruiser and approached the defendant. He asked whether the bicycle was owned by the defendant, and the defendant replied that it was. Officer Delehoy told the defendant to remove his hands from his pockets, and the defendant complied. Officer Delehoy then described the incident that prompted the police to respond to the area. The defendant stated that he did not hear anyone yelling and indicated that he had been speaking with his friend, "Scott." The defendant complied with Officer Delehoy's request that he produce his identification. Officer Delehoy then asked the defendant whether he had any weapons on him. In response, the defendant put his head down, lifted his jacket, and exposed the grip end of a firearm that was located in his waistband. At that point, Officer Delehoy grabbed the defendant's wrists and both parties fell into a bush. Another officer pulled the firearm from the defendant's waistband. The defendant was arrested after he failed to produce a valid license to carry the firearm.

After the defendant's arrest, Officer Delehoy was unable to locate the individual who made the 911 call. He testified that the telephone number provided by the caller did not take incoming calls and no one at the address he provided "would admit to being the person who called."

2. Trial. During trial, Officer Delehoy's testimony describing the stop of the defendant was consistent with his testimony during the suppression hearing, except that he did not characterize the location in any particular way. The trial evidence established the following facts. See Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979). Officer Delehoy informed the defendant that the police responded to that location because "somebody was yelling and they made mention of a gun." After the defendant had been arrested, Officer Delehoy removed the magazine from the firearm and inspected the firearm to ensure that it did not contain a chambered round. The magazine contained fourteen rounds of ammunition and was capable of holding up to fifteen rounds of ammunition. At the time the firearm was removed from the defendant's waistband, the ammunition inside the magazine was not visible and only became visible when Officer Delehoy removed the magazine from the firearm. No shell casings were observed in the area where the defendant was arrested, and the defendant made no statement indicating he knew that the firearm was loaded or that it was a large capacity firearm. The defendant did not have any loose rounds of ammunition on his person. During booking, the defendant stated that "a guy" gave him the firearm because the defendant "likes guns." Photographs of the firearm, the magazine, and the fourteen rounds of ammunition was received in evidence; photocopies of these photographs are in the materials before us.

Discussion. 1. Investigatory stop. The defendant argues that the motion judge improperly denied his motion to suppress because Officer Delehoy lacked reasonable suspicion to conduct an investigatory stop. We disagree.

In reviewing the denial of a motion to suppress, we accept the motion judge's subsidiary findings of fact, absent clear error, but independently review his ultimate findings and conclusions of law.

Commonwealth v. Scott, 440 Mass. 642, 646, 801 N.E.2d 233 (2004).

"An investigatory stop is justified only if the police have reasonable suspicion to conduct the stop." Commonwealth v. Pinto, 476 Mass. 361, 363, 67 N.E.3d 713 (2017). "Reasonable suspicion exists when an officer, based on specific, articulable facts and reasonable inferences therefrom, in light of the officer's experience, has reasonable grounds to suspect 'a person is committing, has committed, or is about to commit a crime' (citation omitted)." Id. at 363-364, 67 N.E.3d 713, quoting Commonwealth v. Gomes, 453 Mass. 506, 511, 903 N.E.2d 567 (2009). Where an investigatory stop is based on information provided by a 911 caller, the judge must determine that the caller's basis of knowledge and veracity were sufficiently established in order to conclude that the police had reasonable suspicion of criminal activity. See Commonwealth v. Depiero, 473 Mass. 450, 454, 42 N.E.3d 1123 (2016).

In this instance, the caller's basis of knowledge was sufficiently established because he identified himself as someone living in the area where the incident was taking place, and his description of the suspect and incident taking place, as relayed through Officer Delehoy's testimony and the dispatch log admitted in evidence during the suppression hearing, permitted the judge to infer that the caller was relaying his firsthand observations to the 911 operator. Compare Commonwealth v. Wilson, 441 Mass. 390, 395, 805 N.E.2d 968 (2004).

Our review of whether the caller's veracity was sufficiently established is largely controlled by the guidance supplied by the Supreme Judicial Court in Commonwealth v. Manha, 479 Mass. 44, 46-48, 91 N.E.3d 669 (2018). In Manha, the victim called the police to report that an individual had pointed a firearm at her during a "road rage" incident. Id. at 45, 91 N.E.3d 669. The victim provided a description of the individual and his vehicle. Id. Based on that description, the police subsequently performed an investigatory stop of the defendant's vehicle. Id. The police arrested the defendant after finding a pellet gun during the course of a protective sweep of the vehicle. Id.

On appeal, the Supreme Judicial Court treated the victim as an anonymous 911 caller for the purposes of determining whether the officer had a reasonable suspicion that criminal activity was underway. Id. at 47, 91 N.E.3d 669. The court found that the caller's veracity was established where she was the alleged victim and she stayed on the line after reporting the crime, and thus she was "likely willing to be identified"; the police officer corroborated details provided by the caller, such as the vehicle's description and the driver's race and gender, before stopping the vehicle; and the caller reported a serious crime and present danger involving a firearm. Id. at 47-48, 91 N.E.3d 669.

Here, as the 911 caller provided his name, address, and telephone number when reporting the incident, it was reasonable for the police to conclude that the caller was "willing to be identified." Id. In addition, Officer Delehoy corroborated details provided by the caller prior to the investigatory stop; namely, a light-skinned black male wearing a green jacket and in possession of a bicycle near the address provided by the caller. Finally, the caller reported a domestic violence incident in which a firearm may have been involved. Given the gravity of the crime and the potential danger to the public, "the police would have been remiss had they not conducted an investigative stop." Id. at 48, 91 N.E.3d 669, quoting Commonwealth v. Anderson, 461 Mass. 616, 625, 963 N.E.2d 704, cert. denied, 568 U.S. 946, 133 S.Ct. 433, 184 L.Ed.2d 265 (2012).

Based on the foregoing, the motion judge correctly concluded that Officer Delehoy had reasonable suspicion to seize the defendant for the purposes of conducting an investigatory stop.

2. Sufficiency of the evidence. At the close of the Commonwealth's case, the defendant filed a motion for required findings of not guilty on the charges of possession of a loaded firearm without a license, G. L. c. 269, § 10 (n ), and possession of a large capacity firearm, G. L. c. 269, § 10 (m ). The defendant conceded that there was sufficient evidence that, if credited, would permit a finding that the defendant knowingly possessed a firearm in violation of G. L. c. 269, § 10 (a ). However, the defendant argued that the evidence was not sufficient to prove that he knew the firearm was loaded or that he knew the firearm was a large capacity firearm.

In reviewing the sufficiency of the evidence, the "question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Latimore, 378 Mass. at 677, 393 N.E.2d 370, quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

a. Loaded firearm. Our review of the sufficiency of the evidence for the possession of a loaded firearm conviction is controlled by the Supreme Judicial Court's recent decision in Commonwealth v. Brown, 479 Mass. at 608, 97 N.E.3d 349. In that decision, the court held that the Commonwealth must prove the defendant knew the firearm was loaded with ammunition in order to convict the defendant of possession of a loaded firearm under G. L. c. 269, § 10 (n ). Id.

Based on the evidence in Brown, the court concluded that the Commonwealth had not sustained its burden of proof, as "no rational trier of fact could have found beyond a reasonable doubt that the defendant knew the firearm was loaded." Id. at 609, 97 N.E.3d 349. In Brown, the loaded firearm was found in the console between the two rear seats of a vehicle during an inventory search. Id. at 602, 97 N.E.3d 349. The defendant was the driver, another occupant was seated in the front passenger seat, and a third occupant was seated in one of the rear seats. Id. The defendant acknowledged that he was aware of the firearm, but he claimed it belonged to someone else and he, the defendant, put it in the vehicle intending to dispose of it. Id. at 603, 97 N.E.3d 349. The rear seat passenger said the firearm belonged to her. Id. There was no evidence that would permit someone to know whether the firearm was loaded simply by its appearance. Id. at 608, 97 N.E.3d 349. Because it was impossible to determine from the firearm's appearance whether it was loaded, and the Commonwealth did not present any evidence that would support an inference that the defendant knew the firearm was loaded, the court concluded that the Commonwealth had not sustained its burden of proof. Id. at 608-609, 97 N.E.3d 349.

The circumstantial evidence in the case before us distinguishes this case from Brown. It is settled that in a criminal case, the evidence may be entirely or principally circumstantial. See Commonwealth v. Donovan, 395 Mass. 20, 25, 478 N.E.2d 727 (1985), and cases cited. See, e.g., Commonwealth v. Chery, 36 Mass. App. Ct. 913, 913-914, 628 N.E.2d 27 (1994). Further, the inferences drawn from circumstantial evidence need not be necessary, but instead only reasonable and possible. Commonwealth v. Bennett, 424 Mass. 64, 68, 674 N.E.2d 237 (1997), and cases cited. Moreover, as the Supreme Judicial Court noted in Brown, supra at 608, 97 N.E.3d 349, a defendant's knowledge that a firearm is loaded can be inferred from circumstantial evidence.

While this is a close case, and the fact finder was not required to infer that the defendant was aware that the firearm was loaded, the inference that the defendant knew that the firearm was loaded is reasonable and possible. Unlike the facts in Brown, supra at 602-603, 97 N.E.3d 349, the defendant, in the case before us, was found with the firearm in his waistband. A commonsense inference from that fact alone is that a person would check to see if the firearm was loaded before putting it in his waistband. This rational inference is strengthened by the additional fact that the defendant admitted that he had some familiarity with firearms. In addition, the inference that the defendant was aware the firearm was loaded is strengthened even further by the evidence that the defendant was alone in the nighttime. Finally, the fact finder could have found that moments before the police arrived, the defendant had been threatening someone and made reference to a firearm. These facts, in combination, permit an inference and a finding beyond a reasonable doubt that the defendant was aware that the firearm found in his waistband was loaded.

b. Large capacity firearm. Our review of the sufficiency of the evidence for the conviction of possession of a large capacity firearm is similarly controlled by a recent decision of the Supreme Judicial Court. In Commonwealth v. Cassidy, 479 Mass. at 529, 96 N.E.3d 691, the court held that "to sustain a conviction under G. L. c. 269, § 10 (m ), the Commonwealth must prove that a defendant either knew the firearm or feeding device met the legal definition of 'large capacity' or knew it was capable of holding more than ten rounds of ammunition."

In Cassidy, supra, the police executed a search warrant for the defendant's apartment. They found two firearms, four feeding devices, and ammunition. The defendant subsequently was convicted of possession of a large capacity firearm, specifically, a nine millimeter pistol that could hold twelve rounds of ammunition, and possession of four large capacity feeding devices, specifically, one extended magazine for a nine millimeter pistol that could hold fifteen or twenty rounds of ammunition and three magazines for an AK-47-style pistol that each could hold thirty rounds of ammunition. See G. L. c. 269, § 10 (m ). The defendant also was convicted of possession of an assault weapon, specifically, an AK-47-style pistol, G. L. c. 140, § 131M, and possession of ammunition, specifically, several boxes and one bag of ammunition, G. L. c. 269, § 10 (h ).

After explaining that the term "knowingly," as it appears in § 10 (m ), modifies not only the phrase "has in his possession,"

but also the phrase "large capacity weapon," Cassidy, supra at 536, 96 N.E.3d 691, the court concluded that the jury could have inferred that the defendant was aware that the nine millimeter pistol and four magazines were capable of holding more than ten rounds of ammunition because the defendant "had owned the firearms and magazines for a significant period of time," as he had purchased them in 2008 or 2009; had fired the two firearms; was familiar with firearms in general, as he had owned other firearms in the past and hunted with firearms since age eight; had knowledge of the nine millimeter pistol's capacity, as he had indicated that he did not fully load the magazine to avoid wearing out the spring; and could see that the magazines were "noticeably larger" than other magazines and "obvious[ly] large." Id. at 537-538, 96 N.E.3d 691.

Here, by contrast, there is no evidence that the defendant had owned the firearm for a significant period of time. The only evidence as to how he acquired the firearm was the defendant's statement that it was given to him by a friend. Also, unlike in Cassidy, there was only one magazine in this case, and that magazine, which was found inside the firearm, cannot be characterized as "obviously large." Indeed, from the photographs and the testimony, when the magazine was inserted into the firearm, the size of the magazine would not be apparent. Although the defendant indicated that he liked firearms, and it could be inferred that he had some familiarity with firearms, there is no evidence that he knew anything in particular about firearms or magazines. Given the evidence presented, we think the Commonwealth failed to carry its burden of proof on the large capacity firearm charge. Contrast id. Accordingly, that conviction must be vacated.

c. Unlawful possession of a firearm. Following sentencing, the judge vacated the defendant's conviction of unlawful possession of a firearm, G. L. c. 269, § 10 (a ), and dismissed that count of the indictment on the ground that it is a lesser included offense of unlawful possession of a large capacity firearm, G. L. c. 269, § 10 (m ). See Commonwealth v. Costa, 65 Mass. App. Ct. 227, 235, 838 N.E.2d 592 (2005). In view of our disposition of the conviction of unlawful possession of a large capacity firearm, G. L. c. 269, § 10 (m ), and the defendant's acknowledgment that the evidence was sufficient to support his conviction of unlawful possession of a firearm, G. L. c. 269, § 10 (a ), we order that conviction reinstated.

3. Instructions on the element of knowledge. "A trial judge sitting without a jury is presumed, absent contrary indication, to have correctly instructed himself as to the manner in which evidence is to be considered in his role as factfinder." Commonwealth v. Batista, 53 Mass. App. Ct. 642, 648 (2002). In the present case, in support of the defendant's motions for required findings of not guilty on the charges under G. L. c. 269, § 10 (m ) and (n ), defense counsel argued that the Commonwealth's burden of proof included proof that the defendant had knowledge that the firearm he possessed was a large capacity firearm ( § 10 [m ] ) and that it was loaded ( § 10 [n ] ). In denying these motions, the judge expressed the view that proof of knowledge, beyond the proof required to establish possession of the firearm, was not required. Although there was no objection, "[b]ecause the judge may have applied a misconception of an essential element of the crime charged, there is a substantial risk that a miscarriage of justice has occurred and the convictions must be reversed. See Wilson v. United States, 250 F.2d 312, 324 (9th Cir. 1957) (no difference between judge incorrectly instructing jury as to applicable law and in effect incorrectly instructing himself - in both cases conviction has resulted from application of improper standard of law)." (Footnote omitted.) Commonwealth v. Gorassi, 432 Mass. 244, 249 (2000). Thus, the conviction of possession of a loaded firearm must be vacated.

Conclusion. Although the evidence presented in support of the charge of possession of a loaded firearm, G. L. c. 269, § 10 (n ), was sufficient to permit the fact finder to infer that the defendant had knowledge that the firearm was loaded, the judge did not instruct himself correctly and therefore that judgment is vacated and the finding of guilt is set a side. Because the evidence presented in support of the charge of possession of a large capacity firearm, G. L. c. 269, § 10 (m ), was insufficient to permit the fact finder to infer that the defendant had knowledge that the firearm was capable of holding more than ten rounds of ammunition, that judgment is vacated, the finding of guilt is set aside, and judgment is to enter for the defendant. Finally, the judgment and the finding of guilt on the charge of unlawful possession of a firearm, G. L. c. 269, § 10 (a ), are reinstated. The case is remanded for further proceedings not inconsistent with this opinion.

So ordered.

      The motion judge found that the stop occurred on October 23, 2013, but the testimony given during the suppression hearing indicates that the stop, in fact, took place on October 25, 2013.

      There was no objection to this testimony, and thus it was available for the judge, as the fact finder, to consider for its full probative worth. See Commonwealth v. Rivera, 91 Mass. App. Ct. 796, 799-800, 81 N.E.3d 327 (2017).

      At the suppression hearing, Officer Delehoy testified that after the defendant's arrest, Delehoy discovered that the telephone number provided by the caller did not receive incoming calls. He also testified that he made an effort to locate the caller, who had identified himself as "Edwin," by going door to door in the neighborhood of the address given by the caller, but he was unable to locate such a person. We do not regard the failure to locate a 911 caller whose name, address, and telephone number were supplied to the police, in these circumstances, as material to the determination whether the information supplied by that caller was reliable for purposes of a threshold inquiry. See Commonwealth v. Meneus, 476 Mass. 231, 236, 66 N.E.3d 1019 (2017) (reasonable suspicion is based on facts available to officer at moment of stop); Commonwealth v. Mercado, 422 Mass. 367, 369, 663 N.E.2d 243 (1996) (same).

      We wish to underscore, however, that the trial judge in this case did not have the benefit of the guidance supplied by the Supreme Judicial Court in Brown, 479 Mass. 600, and Cassidy, 479 Mass. 527, which were decided after the trial in this case.

      Because the defendant has fully served the sentence that was imposed on the greater offense, G. L. c. 269, § 10 (m ), resentencing on the lesser included offense, G. L. c. 269, § 10 (a ), must be to time served. See Commonwealth v. Sallop, 472 Mass. 568, 570-571 (2015). Also, in the event that the defendant is again convicted of the charge under G. L. c. 269, § 10 (n ), the sentence imposed will be within the discretion of the sentencing judge, limited by the terms of the statute and the principle forbidding judicial vindictiveness. See Commonwealth v. Hyatt, 419 Mass. 815, 823 (1995).