text:
    COMMONWEALTH v. Juan A. FIGUEROA.
    17-P-1343
    Appeals Court of Massachusetts.
    Entered: September 4, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   A jury convicted the defendant, Juan A. Figueroa, Jr., of murder in the second degree in 2009, and the trial judge denied his motion for a reduction of the verdict under Mass.R.Crim.P. 25(b)(2), as amended, 420 Mass. 1502 (1995). In 2017, more than eight years after the denial of his first rule 25(b)(2) motion, the defendant filed a second rule 25(b)(2) motion, seeking a reduction of the verdict to manslaughter or a new trial. He contended, as before, that his conviction of murder in the second degree was not "consonant with justice," and, further, that appellate counsel's alleged ineffectiveness for failing to challenge the denial of the first rule 25(b)(2) motion and a particular jury instruction on direct appeal resulted in a miscarriage of justice. As the trial judge had retired, a second Superior Court judge denied the motion without an evidentiary hearing. The defendant appeals. We affirm.

Discussion. 1. Relief under rule 25(b)(2). The trial judge denied the defendant's first rule 25(b)(2) motion, and the defendant did not challenge that ruling on direct appeal. Eight years later, the defendant filed a second motion under rule 25(b)(2), insisting that it was "not a motion for a new trial pursuant to Mass.R.Crim.P. 30 [, as appearing in 435 Mass. 1501 (2009) ], and [that he did] not wish it to be so construed." The motion judge denied the motion "on the merits" and without a hearing.

Rule 25(b)(2) authorizes two distinct types of motions. The first "permits a motion for a new trial to be presented in conjunction with the renewal of a denied motion for a required finding of not guilty" after a jury has been discharged. Commonwealth v. Keough, 385 Mass. 314, 317 (1982). We are concerned here with the second type, which gives trial judges the "option to reduce a verdict [as] a means to rectify a disproportionate verdict, among other reasons, short of granting a new trial." Commonwealth v. Woodward, 427 Mass. 659, 667 (1998). Under this part of rule 25(b)(2), "a trial judge has broad authority to reduce a jury's verdict, despite the presence of legally sufficient evidence to support it." Commonwealth v. Grassie, 476 Mass. 202, 214 (2017).

The second sentence of rule 25(b)(2) has no time limit, and "[t]his absence of a time limit on the filing of such a motion is paralleled by the absence of any time limit on the filing of a motion for a new trial under Mass.R.Crim.P. 30(b)." Keough, supra at 318. It follows, the defendant contends, that he may file multiple rule 25(b)(2) motions because he would be permitted to file multiple motions under rule 30(b). The Commonwealth contends that a defendant is permitted only one rule 25(b)(2) motion, noting that rule 30(b) permits a judge to grant a motion for a new trial "at any time," whereas rule 25(b)(2) does not contain similarly broad language.

We need not resolve this question, because the relief the defendant seeks under rule 25(b)(2) is nonetheless available under rule 30(b). In fact, our cases have at times treated motions filed under rule 25(b)(2) as being essentially interchangeable with rule 30(b) motions. See Commonwealth v. Gilbert, 447 Mass. 161, 167 (2006) ; Commonwealth v. Pring-Wilson, 448 Mass. 718, 731-732 (2007), and cases cited therein. Moreover, "in rare cases, in order to fulfil the obligation incorporated in Mass.R.Crim.P. 30(b) to determine whether 'justice may not have been done,' a trial judge may need to look beyond the specific, individual reasons for granting a new trial to consider how a number of factors act in concert to cause a substantial risk of a miscarriage of justice and therefore warrant the granting of a new trial." Commonwealth v. Rosario, 477 Mass. 69, 77-78 (2017). Notwithstanding the defendant's disavowal in the trial court of any intent to have his motion treated as a rule 30(b) motion, the defendant in his brief to this court has subtly shifted his emphasis and invoked the "confluence of factors" language from rule 30(b) jurisprudence. See id. at 77, and cases cited therein. Accordingly, we consider the judge's denial of his motion through that lens.

2. Confluence of factors. The defendant contends that the facts of his case are consonant with a verdict of manslaughter, and that an erroneous instruction on the Commonwealth's burden of proving murder in the second degree contributed to the wrong verdict. The motion judge denied the defendant's motion "on the merits," finding "no weakness in the critical evidence presented at trial, ... no un-cured error in the jury instructions, ... [and] no ineffective assistance of appellate counsel."

"Whether an appeal is from the granting or the denial of a motion for a new trial, an appellate court will examine the motion judge's conclusion only to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Grace, 397 Mass. 303, 307 (1986). See generally Commonwealth v. Brescia, 471 Mass. 381, 387-391 (2015) (discussing standard of review for allowing of new trial motion on ground that justice may not have been done). "Under the abuse of discretion standard, the issue is whether the judge's decision resulted from 'a clear error of judgment in weighing the factors relevant to the decision ... such that the decision falls outside the range of reasonable alternatives.' " Commonwealth v. Kolenovic, 471 Mass. 664, 672 (2015), quoting from L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). We conclude that the motion judge made no error of law and did not abuse her discretion in denying the motion.

At the defendant's trial, the jury were presented with two vastly differing versions of the events. The trial judge, who had the opportunity to assess the credibility of the defendant's version, denied the defendant's posttrial motion to reduce the verdict, necessarily concluding that the jury's verdict comported with the weight of the evidence. The motion judge saw no reason to disturb that conclusion, and neither do we. This is not a case in which "a number of factors act in concert to cause a substantial risk of a miscarriage of justice and therefore warrant the granting of a new trial." Rosario, 477 Mass. at 78. The defendant received a fair opportunity to present his version of the case. The jury were warranted in convicting him of murder in the second degree, where the evidence showed that once the defendant had overpowered the victim and taken the knife from him, he stabbed him five times rather than availing himself of the opportunity to retreat. The defendant's decision to flee the scene, destroy evidence, and evade the authorities bespeaks malice more than it suggests a credible claim of self-defense or accident. See Commonwealth v. Lyons, 444 Mass. 289, 292 ("[T]o justify a reduction in the verdict, there must be some weakness in the critical evidence ... or some weakness in the evidence coupled with trial error").

Nor do we think that the judge's single erroneous utterance concerning the Commonwealth's burden of proof creates a substantial risk of a miscarriage of justice. After properly instructing the jury that the Commonwealth must prove both elements of murder in the second degree beyond a reasonable doubt, the judge stated, "If, however, you find in your consideration of the evidence the Commonwealth has failed to prove one or more of these elements then you should consider finding the defendant not guilty of the crime of murder in the second degree" (emphasis supplied). The judge misspoke; she should have instructed that the jury "must" find the defendant not guilty of murder in the second degree if the Commonwealth failed to prove any element thereof. However, in the instructions both preceding and following this error, including a supplemental instruction in response to the jury's request to be reinstructed on murder in the first degree, murder in the second degree, and manslaughter, the judge correctly informed the jury of the verdicts available to them and repeatedly stated that the Commonwealth had the burden to prove the elements of any crime beyond a reasonable doubt. See Commonwealth v. Silva, 455 Mass. 503, 524 (2009) (no substantial likelihood of miscarriage of justice in cases involving two irreconcilable instructions if "considering the charge as a whole, ... the instructional center of gravity falls on the side of the correct instruction").

Finally, the defendant argues that he is entitled to a new trial because of the ineffective assistance of appellate counsel on direct appeal, who did not challenge the erroneous jury instruction or the denial of his original rule 25(b)(2) motion. "When assessing whether appellate counsel's behavior fell below the standard of an ordinary, fallible lawyer, we focus on whether appellate counsel 'failed to raise a significant and obvious issue ... which ... may have resulted in a reversal of the conviction, or an order for a new trial.' " Commonwealth v. Aspen, 85 Mass. App. Ct. 278, 282 (2014), quoting from Commonwealth v. Sowell, 34 Mass. App. Ct. 229, 232 (1993). "The challenge is not to identify every plausible argument but rather to argue those issues which are most likely to be resolved in favor of one's client." Sowell, supra at 233.

The affidavit of appellate counsel, describing his reasons for pursuing the issues that he did, was submitted in the proceedings on the defendant's motion. Counsel focused on other issues because he "did not think that the issue was as strong as the issues [he] raised in the brief, and [he] did not feel it would have been wise to substitute the 'consider' argument for one of the other arguments" because the judge's instructions as a whole cured the error. We agree with appellate counsel's assessment, and with the motion judge's conclusion that counsel's decision to focus on other arguments than those subsequently pressed in the postconviction motion was not manifestly unreasonable. See Commonwealth v. Zagrondy, 443 Mass. 93, 98 (2004) ; Commonwealth v. Jones, 42 Mass. App. Ct. 378, 380 (1997).

Order denying motion for relief under Mass.R.Crim.P. 25(b)(2) affirmed.

      We affirmed the judgment in Commonwealth v. Figueroa, 82 Mass. App. Ct. 1123 (2012). The Supreme Judicial Court denied further appellate review, 464 Mass. 1103 (2013).

      In Gilbert, supra at 162-163, acting on the defendant's rule 30(b) motion, a judge reduced a murder in the first degree verdict to a verdict of murder in the second degree under rule 25(b)(2). The court affirmed the order, notwithstanding that the new trial motion was filed eleven years after the defendant's conviction of murder in the first degree, the motion judge was not the trial judge, and the Supreme Judicial Court had previously affirmed the conviction and denied relief under G. L. c. 278, § 33E.

      The defendant's brief also refers, in passing, to the defendant's abusive childhood and psychosocial history, without providing any record citation or otherwise developing the claim. "We decline to address the [defendant's] cursory and unsubstantiated argument, as it does not rise to the level of acceptable appellate argument." Cameron v. Carelli, 39 Mass. App. Ct. 81, 86 (1995).

      The defendant objected to the instruction at trial, but did not pursue his challenge on direct appeal. Accordingly, the claim is unpreserved and "we grant relief only if we conclude that the waived error created a substantial risk of a miscarriage of justice standard. Commonwealth v. Randolph, 438 Mass. 290, 293, 296 (2002).

      As the defendant's motion did not raise a "substantial issue," the motion judge did not abuse her discretion by declining to hold an evidentiary hearing. See Commonwealth v. Chatman, 466 Mass. 327, 334 (2013).


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. Luigi E. AYELA.
    17-P-1586
    Appeals Court of Massachusetts.
    Entered: September 20, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury trial, the defendant was found guilty of indecent assault and battery on a person fourteen years of age or older. The defendant claims that the judged erred in declining to instruct the jury on the lesser included offense of assault and battery. We affirm.

The defendant claims that the jury could have found either that his touching of the victim's buttocks was not indecent, or alternatively that he "intentionally" touched the victim on her back, not on her buttocks, despite his own testimony that the touching was accidental. We disagree.

To be entitled to a lesser included instruction on assault and battery, the evidence must provide a rational basis for acquitting the defendant of indecent assault and battery, and convicting him of the lesser included offense. See Commonwealth v. Thayer, 35 Mass. App. Ct. 599, 602 (1993), S.C., 418 Mass. 130 (1994). However, "[e]ven when evidence is introduced that would justify conviction for a lesser included offense, the defendant is not entitled to an instruction thereupon unless the proof on the 'elements differentiating the two crimes is sufficiently in dispute so that the jury may consistently find the defendant innocent of the greater and guilty of the lesser included offense.' " Commonwealth v. Olmande, 84 Mass. App. Ct. 231, 238-239 (2013), quoting from Commonwealth v. Egerton, 396 Mass. 499, 504 (1986). "That evidence, in ordinary circumstances, cannot be the mere possibility that the jury might not credit a portion of the Commonwealth's evidence, which of course they are always free to do." Commonwealth v. Donlan, 436 Mass. 329, 337 (2002). See Commonwealth v. Porro, 458 Mass. 526, 536 (2010).

Here, the victim testified that the defendant ran up behind her, "grabbed" or "cupped" her left buttocks, and then celebrated his misdeed. According to the defendant, while under the influence of marijuana and alcohol, he decided to introduce himself to the victim, ran to catch up to her, tripped, and accidentally touched the victim's back with his chest area. Thereafter, he claimed he only raised his arms in self-defense.

The defendant's claim that a lesser included instruction was warranted because the jury could have found that the defendant's touching was not indecent is wholly without merit. While not an exhaustive list, the "intentional, unjustified touching" of certain body parts such as the buttocks, thighs, pubic area, and breasts of a female constitutes an indecent assault and battery. Commonwealth v. Mosby, 30 Mass. App. Ct. 181, 184 (1991). Rather, the differentiating element between the two offenses, i.e., indecency, was never in question at trial, and thus, the defendant was not entitled to a lesser included instruction.

The defendant makes an alternative claim that a lesser included instruction was required where the jury could have found that he committed an unconsented-to touching of a nonintimate part of the victim's body, i.e., her back, based on the conflicting accounts by the defendant and the victim. This too is without merit.

As stated above, there was no dispute about the element that differentiated the greater from the lesser crime. The element that the defendant did dispute was whether the touching was intentional as opposed to being the product of an accident when he tripped. However, with this being the focus of the dispute, the jury were left with only two possible verdicts: guilty of indecent assault and battery or a complete acquittal. In this circumstance, the defendant was not entitled to a lesser included instruction. See Egerton, 396 Mass. at 504 (lesser included instruction not warranted because defense, if believed, would have led to complete acquittal).

Nonetheless, the defendant claims that the jury could have believed portions of his testimony and portions of the victim's testimony to cobble together sufficient evidence to support the necessity of a lesser included instruction. We disagree. It is important to note that the focus in these circumstances is on the judge, and not the jury, because "a judge need not charge the jury on a hypothesis unsupported by the evidence." Ibid. To that end, "[t]he judge need not reconstruct all possible factual scenarios subsumed in the evidence presented, no matter how unreasonable, and charge the jury accordingly." Donlan, 436 Mass. at 337 (quotation omitted).

There was no affirmative evidence that the defendant intentionally touched the victim's back. There was only evidence that the defendant either intentionally grabbed the victim's buttocks or accidentally fell into her back. A finding that the defendant intentionally touched the victim's back could only be based on disbelief of the defendant's testimony that he tripped and fell into the victim. This does not constitute affirmative evidence sufficient to warrant a lesser included offense instruction. See ibid. The judge neither erred nor abused her discretion in denying the defendant's request for the lesser included instruction.

Judgment affirmed.

      After the defendant assaulted the victim, she yelled, "[Y]ou mother fucker," and punched him in the face.

      Also, the mere fact that the victim was clothed in shorts when the defendant accomplished his indecent touching of her buttocks in no way diminishes his crime. The law does not require indecent assault and battery to be accomplished by a touching under the clothes. See Commonwealth v. Castillo, 55 Mass. App. Ct. 563, 566 (2002).


text:
    C.P. v. E.P.
    18-P-182
    Appeals Court of Massachusetts.
    Entered: September 20, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, E.P., appeals pro se from an abuse prevention order issued by a judge of the Probate and Family Court, dated April 21, 2017. On appeal, he claims (1) G. L. c. 209A is unconstitutional and (2) the abuse prevention order issued against him should be vacated, asserting there was insufficient evidence to support it. We affirm.

1. Constitutionality of G. L. c. 209A. Assuming the matter is properly before us, see G. L. c. 231A, § 8, the defendant makes a facial claim that G. L. c. 209A violates the due process rights of defendants. We disagree. "Whether a defendant's constitutional rights have been violated will depend on the fairness of a particular proceeding." Frizado v. Frizado, 420 Mass. 592, 598 (1995). Due process fundamentally requires a defendant an opportunity to be heard, a right to present evidence, and a general right to cross-examine witnesses. See id. at 597. This case illustrates the due process protections that are available under the statute. On April 21, 2017, an evidentiary hearing was held for a judge to determine whether the abuse prevention order against the defendant should be extended. During that hearing, the defendant was present in the courtroom, was represented by counsel, and was provided an opportunity to be heard. He was permitted to testify on his own behalf and his attorney cross-examined the plaintiff. The defendant was also able to present evidence including a police report from an earlier incident. He received all the process he was due.

2. The order in this case. An abuse prevention order may be extended if it is demonstrated, by a preponderance of the evidence, that the order is necessary to protect the party from "abuse" as defined in G. L. c. 209A, § 1. See Iamele v. Asselin, 444 Mass. 734, 739 (2005). "Typically, the inquiry will be whether a plaintiff has a reasonable fear of 'imminent serious physical harm.' " Id. at 739-740, quoting from G. L. c. 209A, § 1(b ). "The only criterion for extending the original order is a showing of continued need for the order." Pike v. McGuire, 47 Mass. App. Ct. 929, 929 (1999). Here, the plaintiff testified that she was presently in fear and scared of the defendant. The judge expressly credited the plaintiff's testimony and found "by a preponderance of the evidence that [the plaintiff] continues to credibly be in fear." There was neither an error nor an abuse of discretion in extending the abuse prevention order.

Order dated April 21, 2017, affirmed.

      The Supreme Judicial Court has already rejected the defendant's additional claim that an abuse prevention order should issue only after a jury trial. Frizado, 420 Mass. at 595.


text:
    KIRIBATI SEAFOOD COMPANY, LLC v. M. Delacy CROVO.
    17-P-847
    Appeals Court of Massachusetts.
    Entered: September 19, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Also known as Delacy Crovo, and also known as Marie Carlson.

   This is one of several actions arising out of damage to the plaintiff's commercial fishing vessel in the South Seas. In this legal malpractice action, the plaintiff appeals from a summary judgment entered in favor of the defendant. The motion judge ruled that the plaintiff's claims were time-barred. We agree and accordingly, we affirm.

Background. Kiribati Seafood Company, LLC (Kiribati), filed this action on September 8, 2014. In its nine-count amended complaint, Kiribati sought to recoup from the defendant, M. Delacy Crovo (Delacy), the costs of a receivership that ran from July 2, 2010, through June 26, 2013, under the oversight of a Washington State court. The receivership was imposed as a result of Kiribati's failure to comply with an order requiring it to transfer certain settlement proceeds (Tahiti proceeds) into the court registry. Serving as a conduit, Delacy, a Massachusetts attorney, had convinced Kiribati's counsel in France, Dechert, LLP (Dechert), to wire $671,876.51 of the proceeds into her IOLTA account. In her defense, Delacy averred under the pains and penalties of perjury that as directed by her brother Charles, she had distributed the Tahiti proceeds to two trusts before learning of the transfer order on June 30, 2010. Charles averred that the two trusts were bona fide creditors of Kiribati and that neither he nor Larry had any interest in those trusts. Charles and Larry both assured Coscia that when Delacy paid out the money, "she was unaware of the court order and that she had done nothing wrong."

The receiver expended significant sums of money tracing and recovering funds. At the end of the day, Kirabati paid the money it owed to the Seattle firm as well as a substantial amount incurred in connection with the receivership. On July 1, 2013, Kiribati, co-managed by Nicholas Coscia, sued Dechert for, among other actions, releasing the Tahiti proceeds to Delacy. See Kiribati Seafood Co., LLC v. Dechert LLP, 478 Mass. 111 (2017). Kiribati elected not to add Delacy as a defendant in that action (or to bring a separate action against her, which, all parties agree, would have been timely filed).

Discussion. At summary judgment, Kiribati argued unsuccessfully that its negligence and contract-based malpractice claims were timely under the discovery rule, which in its view accrued on February 8, 2012, the date of Coscia's deposition in the Washington action. We fully agree with the judge's analysis of the limitations issue as it was presented to her. See Frankston v. Denniston, 74 Mass. App. Ct. 366, 373 (2009). On appeal, Kiribati presses a different claim and standard. Kiribati now focuses exclusively on its breach of fiduciary duty claim, maintaining that under the more exacting actual knowledge standard, the breach of fiduciary duty claim was timely. See Lattuca v. Robsham, 442 Mass. 205, 213 (2004) ; Doe v. Harbor Sch., Inc., 446 Mass. 245, 254-257 (2006). "An issue not raised or argued below may not be argued for the first time on appeal." Century Fire & Marine Ins. Corp. v. Bank of New England-Bristol County, N.A., 405 Mass. 420, 421 n.2 (1989).

In any event, were we to reach the merits, we would conclude that the breach of fiduciary duty claim accrued no later than late June, 2011. At this point, Kiribati acquired actual knowledge of Delacy's disbursals and violation of the transfer order, the bases of the breach of fiduciary claim for which damages are sought in this case. Filed more than three years after actual knowledge of the injury at Delacy's hands was acquired, Kiribati's breach of fiduciary duty claim was untimely.

Additionally, Kiribati has provided no basis for equitable tolling in this case. As the judge noted, the general rule is that the appointment of a receiver does not toll the running of the limitations period. See Commissioner of Ins. v. Bristol Mut. Liab. Ins. Co., 279 Mass. 325, 328 (1932). Kiribati argues that where, as here, the receiver was a "custodial" receiver under Washington statutory law, he lacked the authority to bring a breach of fiduciary claim against Delacy. However, in the summary judgment record and at the oral argument on the motion for summary judgment, Kiribati agreed that pursuant to the court's appointment order, the receiver could have filed an action against Delacy. Having failed to raise the lack of authority argument below, Kiribati may not raise it here. See Century Fire & Marine Ins. Corp., 405 Mass. at 421 n.2.

We also conclude, as did the judge, that the adverse domination doctrine may not be applied to extend the limitations period. See Aiello v. Aiello, 447 Mass. 388, 401-406 (2006). Although Charles, the "culpable" party, may have controlled Kiribati, once the receiver was appointed, Charles lacked the authority to act on behalf of the corporation. The receiver was a disinterested officer of the court, and not a corporate wrongdoer. There are no facts of record showing that the receiver refused to allow Kiribati to protect its interests. In fact, Coscia, put on notice of Delacy's wrongdoing, did not ask the receiver to bring an action against Delacy on behalf of Kiribati. Nor did he petition the court to bring the action himself. As Coscia admitted, "[t]here is no reason to believe that such a request would have been denied." The requirements of the doctrine, as a matter of law, were not met.

The judgment, as amended on March 3, 2017, is affirmed. The order denying Kiribati's motion for reconsideration is affirmed.

So ordered.

Affirmed.

      Regardless of how they are cast, all legal malpractice claims are subject to a three-year limitation period. See G. L. c. 260, § 4 ; Hodas v. Sherburne, Powers & Needham, P.C., 938 F. Supp. 58, 59 (D. Mass. 1996). On appeal, Kiribati advances arguments solely with respect to its breach of fiduciary duty claim (count VIII). All other substantive claims, as well as Kiribati's separate appeal from the order denying its motion for reconsideration, are deemed waived. See Abate v. Fremont Inv. & Loan, 470 Mass. 821, 833 (2015).

      There are three members of the Crovo family whose actions are relevant to this appeal: the defendant (Delacy), her brother Charles, and their father, Larry. To avoid confusion, hereinafter we shall refer to each by first name. From 2010 until March, 2012, Charles was the controlling member of Kiribati, while Nicholas Coscia was the minority shareholder. At that time, Charles lost his interest in Kiribati, through foreclosure, to a third party. Larry served as Kiribati's representative in the Tahiti litigation.

      A Seattle law firm, MWW, PLLC (MWW), filed suit against Kiribati to establish an attorney's fee lien on the Tahiti proceeds. A Washington judge ordered Kiribati to deliver $581,434 of the Tahiti proceeds into the court registry by June 25, 2010 (transfer order). In its motion seeking the appointment of a receiver, MWW accused Charles and Coscia of perpetrating a "pretty clear fraud" to get the money into their control.

      Coscia, an attorney, participated in the opposition to the appointment of the receiver.

      In his second report dated June 29, 2011, the receiver disclosed, as herein relevant, that Delacy (1) made several distributions of the Tahiti proceeds to Charles personally and to his companies, including one made on July 1, 2010; (2) obtained a treasurer's check in the amount of $426,000 from her IOLTA account payable to "Jeffrey Parker"; and (3) continued to hold $1,022.57 of Tahiti proceeds in her IOLTA account despite the receiver's demand for a return of the money. The receiver also informed the court that (1) much of the money distributed by Delacy to Charles could not be traced; (2) some of the Tahiti proceeds belonging to Kiribati were used to pay off a personal judgment against Charles; and (3) he had commenced adjunct litigation against Charles and Coscia, seeking damages in the amount of the proceeds transferred to Delacy. The receiver's report was provided to Coscia at the time it was issued. The disposition of the adjunct litigation is not revealed on this record.


text:
    William MCDONALD & another v. PAR HOSPITALITY, LLC.
    17-P-1417
    Appeals Court of Massachusetts.
    Entered: September 19, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Jacqueline McDonald.

   Following their separation from employment, William and Jacqueline McDonald brought this action, alleging that their former employer, PAR Hospitality, LLC (PAR), violated the Wage Act, G. L. c. 149, §§ 148 and 150, and the minimum fair wage law, G. L. c. 151, § 1 et seq. (MFWL). After a four-day trial, the jury, answering special questions, found that the McDonalds had not proven their Wage Act claims. At a posttrial proceeding, the parties agreed that, in light of the jury's answers, the McDonalds were not entitled to any damages under the MFWL. The trial judge subsequently denied the McDonalds' motion for judgment notwithstanding the verdict, concluding that the Department of Labor Standards (department) regulation governing wage deductions was inapplicable and could not be used in determining PAR's compliance with the MFWL. See 454 Code Mass. Regs. § 27.05 (2015). Judgment entered in favor of PAR. This appeal followed. We affirm.

1. Background. The facts are drawn from the jury's findings as well as the undisputed evidence. PAR is the owner and operator of the Super 8 Motel in Watertown (motel). From February, 2005, until 2013, the McDonalds worked for PAR, performing various functions, including taking motel reservations, providing front desk coverage, and undertaking on-call maintenance work. As compensation, the McDonalds agreed to be paid ten dollars per hour for a set number of hours plus the provision of free housing (agreement). The agreement was not reduced to writing.

For the duration of their employment, the McDonalds resided with their two children at 125-127 Arsenal Street, a two-family home adjacent to the motel. At first, they lived in the downstairs two-bedroom unit; upon their request, in 2013, PAR permitted them to move into the upstairs two-story, four-bedroom unit. From July 12, 2010, until December 31, 2012, the McDonalds each worked forty-eight hours per week. Neither received any compensation for the hours that exceeded the agreement. At all relevant times, the minimum wage was eight dollars per hour. The value of the housing provided by PAR, as found by the jury, ranged from $1,500 per month in 2010 to $2,100 per month in 2013.

2. Standard of review. The trial judge's interpretation of the regulation is subject to de novo review. See Commonwealth v. Aldana, 477 Mass. 790, 801 & n.22 (2017). Applying traditional rules of statutory construction, we must construe the regulation as promulgated, giving plain language its ordinary meaning. See Young v. Patukonis, 24 Mass. App. Ct. 907, 908 (1987). The language "must be considered in light of the other words surrounding [it], ... and its scope and meaning must be determined by reference to context." Knapp Shoes, Inc. v. Sylvania Shoe Mfg. Corp., 418 Mass. 737, 744 (1994) (quotation omitted). "[W]here two or more statutes relate to the same subject matter, they should be construed together so as to constitute a harmonious whole consistent with the legislative purpose." Federal Natl. Mort. Assn. v. Hendricks, 463 Mass. 635, 641 (2012), quoting from Board of Educ. v. Assessor of Worcester, 368 Mass. 511, 513-514 (1975).

3. Discussion. PAR fully complied with the oral agreement entered into by the parties at the beginning of the employment relationship. However, a contract or agreement to pay employees less than the minimum wage is presumptively "oppressive and unreasonable" and void as against public policy. G. L. c. 151, § 1. See G. L. c. 151, § 20 (prohibiting employers from raising this type of agreement as defense in MFWL action). Compare G. L. c. 149, § 148 (prohibiting special contracts).

On appeal, the McDonalds argue that where, as here, PAR failed to comply with the notice and writing requirements of 454 Code Mass. Regs. § 27.05(2), PAR was barred from taking any deductions from their weekly wages for housing. As a fallback argument, the McDonalds contend that even if some credit was due for the housing, PAR was limited, pursuant to the regulation, to one thirty dollar per person weekly deduction. If PAR was not entitled to any credit for the housing (or was entitled to only a limited deduction), it paid the McDonalds less than minimum wage from July 12, 2010, until March 23, 2012. If, on the other hand, the full value of the housing is included in the McDonalds' wages, PAR, the McDonalds agree, complied with the MFWL.

The first problem for the McDonalds is that the effective date of the portion of the regulation imposing the notice and writing requirements is January 16, 2015, well into this litigation. Compare 455 Code Mass. Regs. § 2.03(4) (1998). Generally, regulatory changes of substance may only be applied prospectively. See Biogen IDEC MA, Inc. v. Treasurer & Recr. Gen., 454 Mass. 174, 189-190 (2009). To the extent that the McDonalds seek to come within the exception for curative or remedial changes to regulations, they have not demonstrated that the language at issue was intended to clarify rather than to change the law. See Figueroa v. Director of the Dept. of Labor & Workforce Dev., 54 Mass. App. Ct. 64, 70-71 (2002). Moreover, the curative exception may not be invoked where, as here, "settled expectations" would be upset. Id. at 71.

Even assuming that this language in the regulation should be given retroactive effect, we conclude, as the judge did, that it was inapplicable to the facts of the case. Here, there is no evidence that PAR made "deductions" from the "basic minimum wage," which, pursuant to regulation, is defined as the statutory rate (then eight dollars per hour). See 454 Code Mass. Regs. § 27.02 (2015) ; G. L. c. 151, § 1. To the contrary, as agreed upon prior to the commencement of employment, PAR paid the McDonalds a flat rate per week, plus a housing benefit. Lacking PAR's wage and hour records, we are unable to ascertain how the cost of the housing was treated, if at all, for accounting purposes. Cf. G. L. c. 151, § 15 (imposing record-keeping requirements on employers). Assuming in the McDonalds' favor that the compensation arrangement can be construed to include "deductions" for lodging, their interpretation of the regulatory language cannot be reconciled with its ordinary meaning. The lodging covered by the regulation pertains to rooms. The word "room" in the context of housing suggests a rooming or a lodging house, a dormitory for seasonal help, or a single bedroom in a private residence. In no sense is "a room" the equivalent of an entire apartment in a two-family house.

The McDonalds' proposed interpretation would lead to difficulties in application, as demonstrated by their case. For example, while the McDonalds seek to limit PAR's credit to a thirty dollar weekly deduction for the one bedroom they shared, PAR argues that it is entitled to a thirty dollar credit for each room of the five-room apartment occupied by the McDonald family. See 454 Code Mass. Regs. § 27.05(2). We prefer the simpler, more literal reading to one leading to uncertain results in application. See Commonwealth v. Hourican, 85 Mass. App. Ct. 408, 411 (2014) ("[W]e inspect the results of [the canons'] application for rationality and practicality"). We conclude that the regulation governing deductions for lodging did not apply, and thus PAR was not barred from receiving credit for the housing provided to the McDonalds during their employment.

Our interpretation finds support in other sections of the regulation, as well as in the related unemployment insurance benefits statute. See 454 Code Mass. Regs. § 27.02 (with certain exceptions not applicable here, "[t]he regular hourly rate shall include all remuneration for employment paid to, or on behalf of, the employee"); G. L. c. 151A, § 1(s )(A) (defining "wages" to mean "every form of remuneration ... whether paid directly or indirectly, including ... reasonable cash value of board, rent, housing, lodging ... and all remuneration paid in any medium other than cash").

Because the regulation did not apply, the judge did not err by refusing to limit the amount of the weekly credit to PAR to thirty dollars per person. See 454 Code Mass. Regs. § 27.05(2).

The judge did not err in denying the McDonalds' motion for judgment notwithstanding the verdict. The judgment, as corrected on September 14, 2017, is affirmed.

So ordered.

Affirmed

      In their three-count complaint, the McDonalds alleged that PAR (1) failed to pay them all their earned wages in a timely fashion; (2) retaliated against them for complaining to the Attorney General's office about the nonpayment of wages; and (3) failed to pay them the statutory minimum wage for the duration of their employment. See G. L. c. 149, §§ 148, 148A ; G. L. c. 151, § 20.

      The McDonalds have waived their Wage Act claims and press only their claim under the MFWL.

      William McDonald's last day of work was January 14, 2013; Jacqueline McDonald's was May 25, 2013.

      The jury specifically rejected the McDonalds' testimony about the terms of their compensation package, finding no agreement to pay the McDonalds for all the hours that they worked. Until March 22, 2012, the agreed-upon number of hours per week was thirty-two; from March 23, 2012, until the end of the employment, the agreed-upon number was forty hours. Between July 12, 2010, and March 22, 2012, PAR paid the McDonalds $320 per week (i.e., ten dollar per hour times thirty-two agreed-upon hours); and from March 23, 2012, to December 31, 2012, PAR paid the McDonalds $400 per week (i.e., ten dollars per hour times forty agreed-upon hours).

      We note that, as motel employees, the McDonalds were not eligible for the statutory premium overtime rate. See G. L. c. 151, § 1A(12). The jury found that, in 2013, neither McDonald worked in excess of forty hours per week. The McDonalds do not press damage claims for this time period.

      We have assumed that the legal issue, first presented in the McDonalds' motion in limine, was properly preserved at trial.

      If the "commissioner" expressly approves the payment of a lesser wage, the rule does not apply. See G. L. c. 151, § 1. The "commissioner" is the director of the department. G. L. c. 151, § 2. There is no suggestion that PAR obtained the necessary approval triggering the statutory exception to the general rule.

      Title 454 Code Mass. Regs. § 27.05(1) provides that "[n]o deduction, other than those required or expressly allowed by law, and those allowed for lodging and meals listed in 454 CMR 27.05(2) and (3), shall be made from the basic minimum wage." Title 454 Code Mass. Regs. § 27.05(2), governing permissible deductions for lodging provides, as herein relevant, that "[a]n employer may deduct from the basic minimum wage of an employee a sum per week as set forth in 454 CMR 27.05(2)(a) through (c) for lodging that is safe and sanitary, and meets the standards for housing established by [the State Sanitary Code].... A deduction for lodging is not permitted unless the employee voluntarily accepts and actually uses the room. Deductions for lodging shall not be made by the employer unless the employer has given the employee prior written notice describing the lodging, setting forth the amount to be charged to the employee for the lodging, and providing notice that the employee's acceptance of the lodging is voluntary, and the employee has provided voluntary written acceptance of the lodging and deductions."

      During that time period, PAR paid each McDonald sixty-four dollars less than required each week by the MFWL (i.e., $384 [sixteen times eight dollars] minus $320 in actual wages). The $400 weekly wage paid to the McDonalds between March 23, 2012, and December 31, 2012, exceeded the minimum wage.

      Pursuant to the regulation, the department does not permit the employer to take deductions for lodging "unless the employee voluntarily accepts and actually uses the room." The department caps the amount of the deduction by reference to the number of persons occupying the room.


text:
    Mary Katherine CONNORS v. Kevin G. CONNORS.
    17-P-1147
    Appeals Court of Massachusetts.
    Entered: September 18, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   At issue in this appeal is the validity of a postnuptial agreement executed in April, 2011, by Mary Katherine Connors (wife) and Kevin G. Connors (husband). Almost four years after signing that agreement, in January, 2015, the wife filed a complaint for divorce and sought, among other things, to enforce the postnuptial agreement. The husband filed a counterclaim for divorce, requesting that the postnuptial agreement be declared invalid. The husband claimed that the postnuptial agreement was unenforceable because it was the product of duress and coercion and was not fair or reasonable either at the time of execution or the divorce. A joint motion to bifurcate the case and go forward first on the issue of the validity of the postnuptial agreement was allowed, and, following a trial at which both parties testified, a judge of the Probate and Family Court upheld the postnuptial agreement. The judge issued a partial judgment on divorce and counterclaim for divorce (partial judgment), as well as a memorandum of decision, dated October 26, 2016, upholding the postnuptial agreement, and issued an order dated October 27, 2016, requiring the husband to pay the wife's attorney's fees and costs in the amount of $141,665.70. After a trial as to the remaining issues regarding the divorce, the judge issued a judgment of divorce nisi (judgment) dated December 9, 2016, which incorporated the partial judgment.

The husband appeals from the judgment, claiming that the judge abused her discretion by concluding that the postnuptial agreement is enforceable and that certain of the judge's findings are clearly erroneous. The husband also appeals from the order requiring him to pay his wife's attorney's fees and costs. For the reasons that follow, the order requiring the husband to pay the wife's attorney's fees and costs is vacated; paragraph number 2 of the judgment is affirmed and the judgment is vacated in all other respects; and the matter is remanded for further proceedings consistent with this memorandum and order.

Background. We summarize the facts as found by the judge. The parties were married on August 20, 1988, and had four children, two of whom were emancipated at the time of the trial. The husband was the primary wage earner during the marriage, while the wife maintained the home and was the primary caregiver for their children. The husband earned a substantial salary and provided the family with a comfortable lifestyle. He founded or cofounded twelve health care technology companies and held the position of chief executive officer (CEO) for ten of those companies. The judge found that the husband is a successful entrepreneur and venture capital investor with extensive experience in negotiating contracts in a complex field. In 2015, the husband's gross income was approximately $500,000. Although the wife essentially had not worked for approximately thirty years, the judge found that she was employable in a sales capacity. Prior to the parties' marriage, both the husband and the wife knew of a possible future inheritance to the wife from her uncle. At some point before 2001, the parties learned that the inheritance was estimated at over eight million dollars.

The marriage was not a particularly happy one. The husband's commitment to work required frequent business travel and left little time for his wife and family. The parties' problems worsened following the birth of their last child in 2003. Soon thereafter, the wife began to suspect that the husband was having an affair with a colleague and requested that the colleague be fired. The husband denied the affair and continued to travel with the colleague, often without informing his wife. The wife's accusations and distrust of her husband's fidelity increased. On two occasions the wife physically assaulted the husband during arguments over the colleague, who eventually was fired in 2011. The parties attended marriage counseling, but the strain on the marriage did not abate. Around 2008, the couple began discussion regarding a postnuptial agreement as a part of the counseling process. The husband created a document entitled "In the event of Divorce" (divorce document), with a general purpose of insulating the wife's inheritance from being included as a marital asset in the event of a divorce. The divorce document eventually became the basis for the postnuptial agreement, which was negotiated over a two-year period from 2009 to 2011.

The judge found that neither party was contemplating divorce at the time the postnuptial agreement was drafted, but that both almost certainly realized that the postnuptial agreement had implications along those lines. At first the husband was not represented by counsel, but, at the wife's insistence, the husband retained counsel, who thereafter also participated in a lengthy negotiation process. The parties eventually executed a final postnuptial agreement on April 29, 2011. The signing of the postnuptial agreement was recorded and a copy of that recording was admitted in evidence.

Like the divorce document that preceded the postnuptial agreement, the postnuptial agreement sets forth the parties' intent that the wife's inheritance be excluded from any division of the marital estate in the event of a divorce. The postnuptial agreement further provides for the equal division of all remaining property and the husband's income. Among other provisions, the postnuptial agreement recites that the parties are aware of the rights to which they may be entitled under Massachusetts law, each party has retained counsel, and each executed the agreement "freely and voluntarily." At trial, however, the husband testified he would sign whatever his wife put in front of him in order to save his marriage and show her how much he loved her. As a result, he claims, he did not push for any changes and accepted the fifty-fifty division of his income even though his attorney advised him not to.

Although the judge did not explicitly reject the husband's claims as to his motivation, she unequivocally rejected the assertion that he signed the postnuptial agreement under duress. The judge found that the husband intended to be bound by the postnuptial agreement and changed his mind after the wife filed for divorce. The judge then observed that, "[a]t trial[,] husband intends to seek a greater share of marital assets (80-20) given what he perceives to be his greater contribution to the marriage, though he is concerned the present post nuptial agreement leaves him with insufficient retirement funds and a greater share of marital assets would enable him to recoup to a level he would need to support himself."

On the basis of these "facts and circumstances," the judge concluded that the postnuptial agreement was "fair and reasonable and enforceable." The judge stated that she had analyzed the factors set forth in Ansin v. Craven-Ansin, 457 Mass. 283 (2010) (Ansin ), and found that those factors had been met. As to the distribution of property, the judge ruled: "The provision in the post nuptial agreement that wife's inherited property be excluded from the marital estate and parties divide equally the assets they have accumulated through their partnership is not unreasonable per se and is indeed often seen in pre nuptial agreements involving inherited property. If this [a]greement is upheld then at the divorce trial [h]usband intends to seek a disproportionate share of the non inherited marital property (80/20 in his favor) given wife's inheritance. That is a matter for the divorce."

With respect to the alimony provision, the judge stated, "While the alimony provisions for equal sharing of [husband's] income, as defined in the [postnuptial] agreement, (after excluding income from her inheritance), may not be what the Court itself would enter, I do not find it unconscionable or unreasonable at the time it was signed or at [the] time of enforcement." In reaching this conclusion, the judge "evaluated the entire context in which the agreement was reached, ... considered husband's extensive business acumen, ... allowed greater latitude here where each had independent counsel of their choosing and ... considered the [ ]magnitude of disparity between the outcome under the agreement and outcome under otherwise prevailing legal principles."

At the close of evidence in the first portion of the bifurcated trial, the judge scheduled the remaining issues for trial on November 16 and 17, 2016, and December 1, 2016. In her memorandum of decision dated October 26, 2016, the judge ruled that the postnuptial agreement was valid and enforceable, and issued a partial judgment to that effect. The judge also issued an order, dated October 27, 2016, requiring the husband to pay the wife's attorney's fees and costs as provided by the postnuptial agreement. The parties then filed a joint motion to continue the second portion of the bifurcated trial (second trial), requesting that the number of trial days be reduced from three to one, which was allowed. After the one-day trial, the judge issued a judgment, dated December 9, 2016, which incorporated the partial judgement, and also incorporated and merged a parenting plan agreement dated December 1, 2016.

Discussion. 1. The postnuptial agreement. The thrust of the husband's argument is that the judge applied an improper standard of review and failed to adequately scrutinize the provisions of the postnuptial agreement. As a result, the husband claims, the judge's ruling that the postnuptial agreement is fair and reasonable and not the product of duress and coercion amounts to an abuse of discretion. The husband also argues that the judge's mistaken belief that there was to be a subsequent trial as to the division of marital property undermines her conclusion that the postnuptial agreement was fair and reasonable both at the time of execution and at the time of divorce.

We reject most of the husband's assertions. We do not agree that the judge abused her discretion by concluding that the husband signed the postnuptial agreement freely and voluntarily. The judge's determination that the postnuptial agreement was not the product of duress or coercion is amply supported by the evidence. As the judge noted, the husband is a sophisticated businessman with significant experience in contract negotiations. While the husband may have been determined to sign whatever the wife put in front of him, he did so of his own free will and with the advice of counsel. Moreover, the judge clearly understood that it was the wife's burden to prove the absence of duress and we agree with her conclusion that the wife had met her burden.

Next, we do not agree that the judge applied an improper standard when reviewing the postnuptial agreement. The judge correctly relied upon the factors set forth in Ansin and did not, as the husband claims, apply a "conscionability" standard as opposed to a "fair and reasonable" standard in deciding that the agreement was valid and enforceable. Although the judge described the alimony provision as not "unconscionable or unreasonable," we are confident that she understood the level of scrutiny required by Ansin with respect to the postnuptial agreement as to the time it was executed.

That said, we do have one significant concern. Our review leads us to conclude that in her memorandum of decision the judge was not sufficiently clear as to whether she had determined that the postnuptial agreement was fair and reasonable at the time of the divorce. We agree with the husband that the judge proceeded on the mistaken belief that the husband would have an opportunity to seek a "disproportionate share of the non inherited marital property" at the second trial. On two occasions in her detailed memorandum of decision, the judge expressly noted that the husband intended to request a greater share of marital assets at the second trial. Coupled with the judge's observation that "the alimony provisions ... may not be what the Court itself would enter," these comments suggest that the judge had some misgivings with respect to the fairness of the postnuptial agreement at the time of the divorce and that she believed that any unfairness could be mitigated at the subsequent second trial. More fundamentally, her reference to the possibility of a different division of the marital assets than that provided for in the postnuptial agreement indicates that the judge may not have fully realized that the postnuptial agreement would be binding as to the division of assets at the time of the divorce.

In considering the postnuptial agreement on remand, the judge should address only whether the agreement's provisions for alimony and the division of noninherited assets were fair and reasonable at the time of the divorce. Among the factors the judge should consider are "the financial and property division provisions of the agreement as a whole" and "the mandatory and, if the judge deems it appropriate, the discretionary factors set forth in G. L. c. 208, § 34." Ansin, 457 Mass. at 298, quoting from Dominick v. Dominick, 18 Mass. App. Ct. 85, 92 (1984).

2. Attorney's fees and costs. Because the postnuptial agreement provides that a breaching party shall be liable for reasonable costs and expenses in connection with such breach and the judge concluded that the husband breached the postnuptial agreement, the judge ordered the husband to pay the wife's attorney's fees and costs. However, given our conclusion, it is no longer clear whether the husband has breached the postnuptial agreement. Thus, the question whether the wife is entitled to her reasonable attorney's fees and costs must be revisited by the judge on remand.

Conclusion. The order dated October 27, 2016, requiring the husband to pay the wife's attorney's fees and costs, is vacated. Paragraph number 2 of the judgment dated December 9, 2016, is affirmed, and the judgment is vacated in all other respects. The matter is remanded for further proceedings consistent with this memorandum and order.

So ordered.

Affirmed in part; vacated in part and remanded.

      The judge found insufficient evidence of an affair, but observed that the husband's failure to fire the colleague or be truthful about traveling with her contributed to the deterioration of the marriage.

      The judge did "not find credible or persuasive [the] husband's testimony that he signed the document out of fear or duress." She stated: "While execution of the post nuptial agreement may be inherently stressful, that does not here rise to the level of duress to the extent that [h]usband is unable to exercise his own judgment. I do not find [h]usband, on the facts of this case, was under duress or that he did not understand or appreciate the consequences of what he was doing or that he was unable to act of his free will. Husband is a savvy and sophisticated businessman. He has a long history of developing and operating businesses in the scientific field. Indeed he has largely taught himself in this area and become very proficient. His income has been substantial. He has served on boards of directors of multiple businesses and acted as CEO at times. In this capacity he has negotiated and executed contracts, dealt with attorney's [sic ], [and] suggested revisions to contracts [that] raised capital. Through his financial efforts the parties have developed a sizeable marital estate, exclusive of [w]ife's inheritance. Wife has no such extensive business background. Husband has the further opportunity of acquiring future assets if Solace [a company formed by the husband, wife, and three others to develop a nonsurgical solution for female urinary incontinence ] is sold for example at the price range [125 to 450 million dollars] he contemplates."

      The judge stated she had scrutinized the postnuptial agreement carefully to determine whether "(1) each party had the opportunity to obtain separate legal counsel of his/her choosing[;] (2) ... there was fraud or coercion in obtaining the [a]greement[;] (3) ... there was full disclosure of all assets before the [a]greement was signed[;] (4) ... each spouse knowingly and explicitly agreed in writing to waive the right to a judicial equitable division of assets and all marital rights in [the] event of divorce[; and] (5) ... [the] terms of the [a]greement were fair and reasonable at [the time of] execution and remained so at [the] time of divorce." See Ansin, supra at 291.

      According to the joint motion, the parties were requesting the reduction in trial days on the ground that the "upcoming trial was intended to be a divorce trial regarding division of assets and support in the event the postnuptial agreement was declared invalid as well as on the custody and parenting plan for the parties' minor son. As the postnuptial agreement has been declared valid and enforceable, the parties only need one day for the custody and parenting plan aspect of the case."

      Although the judge found that duress was "the only ground on which [the husband sought] to invalidate the [postnuptial a]greement," the husband argued at trial that the postnuptial agreement was unenforceable "[w]hether or not [he] was under duress" when he signed it. We thus agree with the husband that he preserved the argument.

      Although we do not reach the issue, we note that the husband's argument regarding the scope of the attorney's fee award has merit. We have reviewed the invoices submitted by the wife's counsel in support of the amount requested for attorney's fees, and agree with the husband that the invoices are not sufficiently specific to determine the amount of time spent on enforcing the postnuptial agreement. Thus, should the wife prevail on remand, we anticipate that she will provide a more detailed request.


text:
    COMMONWEALTH v. Ronni SANQUINTIN.
    17-P-472
    Appeals Court of Massachusetts.
    Entered: September 17, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   On April 24, 2013, the defendant, Ronni Sanquintin, was indicted for assault and battery on a police officer, G. L. c. 265, § 13D ; possession of a firearm without a firearm identification card, G. L. c. 140, § 129C ; possession of ammunition without a firearm identification card, G. L. c. 140, § 129C ; trafficking in cocaine, G. L. c. 94C, § 32E ; and trafficking in heroin, G. L. c. 94C, § 32E. Following a jury trial, the defendant was convicted of assault and battery on a police officer. On appeal, the defendant argues that he is entitled to a new trial because he was prejudiced by the admission of certain hearsay statements in evidence. For the reasons stated below, we affirm.

Background. On February 28, 2013, officers from the Lawrence police department surveilled the defendant's uncle, Radhames Pimentel, and observed him engaging in what were believed to be a series of drug transactions. The police then arrested Pimentel and applied for a warrant to search the second-floor apartment of the three-family building that Pimentel was seen entering and exiting. Detectives McLellan and Guthrie remained in the apartment to ensure that no one entered the premises until a search warrant could be procured.

The defendant subsequently arrived at the apartment and informed the detectives that he resided there. The defendant was told that the apartment was being secured until a warrant could be obtained. The defendant became agitated after hearing that the police were attempting to search the apartment, and his mood from thereon fluctuated, with the defendant being calm one moment and agitated the next The defendant proceeded to sit down on a landing outside of the apartment entrance. Both detectives were also on the landing, with Detective McLellan standing approximately one foot away from the defendant. After the defendant sat down, Detective McLellan called Captain Vasque, also of the Lawrence police department, to inform him that the defendant had arrived on the scene with keys to the apartment. Detective McLellan testified that the defendant then punched him in the thigh with a closed fist. The prosecutor asked Detective McLellan whether the punch was "hard," to which he responded, "Yeah. He swung." Detective McLellan further testified during cross-examination that the punch did not leave a mark or bruise on his thigh. Detective Guthrie, who was also standing on the landing with the defendant and Detective McLellan, testified that he did not observe the defendant punch Detective McLellan.

On redirect examination, Captain Vasque was permitted to testify, over the objection of defense counsel, that while speaking with Detective McLellan over the phone, he heard Detective McLellan state, "Did you just punch me? Are you trying to punch me? Or something to that effect. Something along those lines." Defense counsel again objected and moved to strike the testimony. The objection was overruled.

Discussion. The defendant argues on appeal that Captain Vasque's testimony was improperly admitted hearsay evidence and that its admission constituted prejudicial error necessitating a new trial. We disagree.

The question is whether Detective McLellan's statement was an assertion. See Mass. G. Evid. § 801(a) (2018) (defining "statement" as "a person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion"); Commonwealth v. Baker, 20 Mass. App. Ct. 926, 928 n.3 (1985). See also Bacon v. Charlton, 7 Cush. 581, 586 (1851). To answer that question, we must decide whether Detective McLellan was intending to make an assertion that the defendant had struck him when he said, "Did you just punch me? Are you trying to punch me?" The legal status of "implied assertions" has been described as a "thorny problem." Commonwealth v. Pelletier, 71 Mass. App. Ct. 67, 72 n.6 (2008). It is not a question that has been answered in any definitive way in Massachusetts. We are not required to answer it in this case because we can resolve this matter by assuming that Captain Vasque's testimony was hearsay, and that the defendant's multiple objections were sufficient to preserve the issue on appeal.

We therefore review to determine whether the admission of the testimony prejudiced the defendant. See Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). Here, Captain Vasque's testimony was merely cumulative of Detective McLellan's prior testimony, in which he testified that he was, in fact, punched in the thigh by the defendant. See Commonwealth v. Martinez, 431 Mass. 168, 176 (2000), quoting from Commonwealth v. Bart B., 424 Mass. 911, 915 (1997) ("The admission of cumulative evidence does not commonly constitute reversible error"). Additionally, the testimony at issue consisted of two short sentences made during the course of a multi-day trial. See Commonwealth v. Rebello, 450 Mass. 118, 128-129 (2007). Finally, the prosecutor did not refer to Captain Vasque's testimony in her closing argument. See id. at 129. For these reasons, we conclude that the admission of Captain Vasque's testimony in evidence was not prejudicial to the defendant.

Judgment affirmed.

      The Commonwealth nol prossed the heroin charge to the extent that it alleged that he was trafficking in heroin prior to trial, resulting in the defendant being instead charged with possession of a class A substance with intent to distribute. On that count, as well as the trafficking in cocaine count, the jury were unable to render a verdict and a mistrial was declared. The defendant was found not guilty of the unlawful possession of a firearm and ammunition offenses.


text:
    COMMONWEALTH v. Roy SABANERO.
    17-P-1458
    Appeals Court of Massachusetts.
    Entered: September 17, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   A judge of the Superior Court allowed the defendant's motion to suppress illegal drugs and other items seized during the execution of a search warrant. The Commonwealth appeals, arguing that the affidavit filed with the application for the warrant recited information that sufficiently established probable cause to believe that evidence of drug dealing would be found in the defendant's residence. We agree, and reverse.

Background. On April 10, 2016, Detective Bruce Nicely, assigned to the organized crime intelligence bureau of the New Bedford police department, applied for a search warrant for the defendant's residence at 966 County Street, New Bedford. The warrant issued the same day, authorizing a search for, among other things, controlled substances, specifically marijuana, and all tools and equipment used in drug manufacturing or distribution. Nicely's affidavit in support of his application recited that he had considerable experience in drug investigations. He then recounted information he had received from Detective Sergeant Justin Kagan, who had received information from a "confidential and reliable informant." Kagan had been speaking with the informant over a period of sixty days, up until the time that the application was filed. He knew the informant's name and address and knew that the informant was a drug user, who was familiar with street level sales of illegal drugs.

In the past, the informant had provided information that led to a search warrant and subsequent seizure of illegal drugs, drug paraphernalia, and cash at a named address. A named individual was arrested, presumably as a result of that seizure. The informant told Kagan that he had purchased marijuana "on multiple occasions" at the defendant's residence from an individual he described as "a short Hispanic male with short black hair and a thin build."

Kagan watched the defendant's address ("conducted surveillance") and observed an individual matching the informant's description leave the residence by the rear door. City records revealed that an individual named Roy Sabanero lived at that address, and Kagan concluded from a booking photograph of Roy Sabanero that Sabanero was the man he had seen leave the building. A police report from March 5, 2016, listed the same address as Sabanero's and revealed that a quantity of cocaine and a quantity of marijuana were seized from a vehicle then operated by Sabanero. The informant also identified Sabanero from the booking photograph as the person from whom he purchased the marijuana. Sabanero's board of probation record listed twenty-three adult arraignments, including six for drug-related offenses, including distribution and possession with intent to distribute. The informant also told Kagan that the informant had bought marijuana from Sabanero in the rear hallway of the target residence within seventy-two hours of the search warrant application; police surveillance produced observations of the defendant going in and out of that residence and, on one occasion, conducting what Kagan believed, based on his experience and training, to be "a hand-to-hand [drug] transaction" after leaving the residence.

Discussion. "We confine our examination of the sufficiency of a search warrant application to the 'four corners of the affidavit.' " Commonwealth v. Mendes, 463 Mass. 353, 364 (2012) (citation omitted). "The facts contained in the [search warrant] affidavit, and the reasonable inferences therefrom, must demonstrate probable cause to believe that evidence of the crime will be found in the place to be searched." Commonwealth v. Tapia, 463 Mass. 721, 725 (2012) (citation omitted). "This probable cause inquiry requires a nexus between the items to be seized and the place to be searched." Ibid. (citation omitted). "Because a determination of probable cause is a conclusion of law, we review a search warrant affidavit de novo." Commonwealth v. Foster, 471 Mass. 236, 242 (2015).

The motion judge stated that the "affidavit rests critically upon the uncorroborated -- and therefore unreliable - - statements of a confidential informant ... and the limited observations of Kagan [and concluded,] [t]he affidavit in this case does not present facts that enable this kind of conclusion [that is, "that drugs, or the instrumentalities of their trade will be found on the premises"]." We disagree.

In Commonwealth v. Upton, the Supreme Judicial Court

"conclude[d] ... that the principles developed under Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United States, 393 U.S. 410 (1969), if not applied hypertechnically, provide [an] appropriate structure for probable cause inquiries under art. 14. Under the Aguilar-Spinelli standard, if an affidavit is based on information from an unknown informant, the magistrate must 'be informed of (1) some of the underlying circumstances from which the informant concluded that the contraband was where he claimed it was (the basis of knowledge test), and (2) some of the underlying circumstances from which the affiant concluded that the informant was 'credible' or his information 'reliable' (the veracity test). Aguilar v. Texas, supra at 114. If the informant's tip does not satisfy each aspect of the Aguilar test, other allegations in the affidavit that corroborate the information could support a finding of probable cause. Spinelli v. United States, supra at 415.
"Each prong of the Aguilar-Spinelli test -- the basis of knowledge and the veracity of the informant -- presents an independently important consideration. We have said that independent police corroboration can make up for deficiencies in either or both prongs of the Aguilar-Spinelli test. We reiterate today, however, that each element of the test must be separately considered and satisfied or supplemented in some way."

Commonwealth v. Upton, 394 Mass. 363, 374-376 (1985), quoting from Commonwealth v. Upton, 390 Mass. 562, 566, 568 (1983) (emphasis supplied). That is, if there are facts showing that the informant is reliable and that he has a basis of knowledge for what he reports, corroboration is not necessary. See Commonwealth v. Gonzalez, 90 Mass. App. Ct. 100, 103 (2016) (where, as here, "an unnamed informant's tip is relied on by the police as supplying probable cause to arrest and to search, art. 14 [of the Massachusetts Declaration of Rights] requires that the information satisfy the two-pronged standard set forth in Aguilar v. Texas, 378 U.S. 108 [1964], and Spinelli v. United States, 393 U.S. 410 [1969]").

In the case before us, we are satisfied that the search warrant affidavit provided sufficient information to satisfy each of the Aguilar-Spinelli prongs and therefore provided probable cause to believe that evidence of illegal drug dealing would be found in the defendant's second-floor apartment. In reviewing whether the standard is met, "we consider whether, taken as a whole and read in a commonsense fashion, the [hearing evidence] adequately demonstrates that the informant has provided reliable information." Gonzales, 90 Mass. App. Ct. (citation omitted).

First, the informant had an adequate basis of knowledge by virtue of the participation in the defendant's drug dealings, and by providing a clear description of the defendant, and definitively identifying him after seeing his booking photograph. The informant also offered a detailed account of how, on several occasions, the informant purchased marijuana from the defendant outside his second-floor apartment at 966 County Street. See Mendes, 463 Mass. at 365 ("The level of detail found in [the] informant['s] description[ ] is consistent with the kind of firsthand knowledge through personal observation that has repeatedly been held to satisfy the basis of knowledge prong"). Moreover, the information was not stale, as within seventy-two hours of the search warrant application, the informant told Kagan that the defendant sold the informant drugs inside the building. Thus, the basis of knowledge prong was satisfied.

Next, the affidavit satisfied the veracity prong by providing proof of the informant's past reliability. Kagan's past experiences with the informant demonstrated that the informant had provided reliable and accurate information leading to an arrest and seizure of drugs and contraband. "The veracity test may be satisfied by demonstrating the credibility of the informant. That credibility, in turn, may be established by showing that information provided in the past by this informant has proved to be accurate." Gonzalez, 90 Mass. App. Ct. at 104 (citation omitted). This is especially true where, as here, previous accurate tips have led to the seizure of illegal narcotics. See Mendes, 463 Mass. at 365-366 ("As the defendants concede, [confidential informant B's (CSB) ] reliability was established through previous instances where CSB's information led to the confiscation of illegal narcotics. With respect to [confidential informant A,] 'the motion judge relied on the extent of detail in the informant's information, police corroboration of a portion of that detail, and police knowledge of the identity and whereabouts of the informant' " [citations omitted] ). Having these principles in mind, we are satisfied that the informant's information here satisfied the requirements of the Aguilar-Spinelli test. See Commonwealth v. Monteiro, 93 Mass. App. Ct. 478, 481 (2018), reiterating the Supreme Judicial Court's language in Commonwealth v. Upton, supra.

The informant's information here also was corroborated in significant ways, so that, even if it was not sufficient by itself, the affidavit as a whole provided probable cause for the search. "[A]n informant's detailed tip, plus independent police corroboration of those details, can compensate for deficiencies in either or both prongs of the Aguilar-Spinelli standard and thus satisfy the art. 14 probable cause requirement." Gonzalez, 90 Mass. App. Ct. at 103 (citation omitted).

Kagan independently corroborated the details the informant provided through his investigation of relevant records and surveillance of the defendant leaving from, and returning to, the target residence on multiple occasions; on one specific occasion, Kagan observed the defendant leave the residence and conduct a suspected hand-to-hand drug transaction a short distance from the residence. "[D]etail, by itself, does not ordinarily suffice to establish reliability, [but] it remains a factor in the over-all assessment of ... reliability ... [and] police corroboration of that detail is a strong indicator of reliability." Commonwealth v. Alfonso A., 438 Mass. 372, 376-377 (2003). Although not specifically named in the affidavit, the informant was known to Kagan, providing "a factor that weighs in favor of reliability." Id. at 376. Taken together, the veracity prong was satisfied.

"In dealing with probable cause, ... as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent [people], not legal technicians, act." Foster, 471 Mass. at 242 (citations omitted). A reasonable reading of Kagan's affidavit indicates that the recited facts were sufficient for the issuing judge or magistrate to find probable cause that the defendant was illegally selling marijuana, and that, due to the details provided by the informant of the drug transactions occurring in the hallway outside of the defendant's apartment, it was a fair inference that the marijuana, along with evidence that it was being distributed illegally, would be located inside his residence at 966 County Street.

Order allowing motion to suppress reversed.

      We take the background from the warrant itself, along with the supporting application and affidavit.

      During the course of Detective Nicely's tenure with the organized crime intelligence bureau, he has conducted several drug investigations resulting in arrests; he has conducted undercover surveillance, executed numerous search warrants, and cultivated numerous confidential informants; he has participated in narcotics training at the policy academy, and is certified in drug field testing. Through his training and experience, he is familiar with the preparation, packaging, and street value of various controlled substances, and is familiar with common methods of distributing these drugs.

      According to the affidavit for the warrant, the informant's information led to the seizure of "approximately 19 grams of heroin. 2.4 grams of cocaine, packaging materials, digital scale and $1,631.00 in U.S. [c]urrency were seized."

      The informant told Kagan that he would first call the defendant at an identified telephone number and order the quantity he desired. He then would go to the residence, into the back hallway of the multifamily dwelling, and purchase the marijuana from the defendant outside the rear door to the second floor apartment.


text:
    WRIGHT GROUP, INC. v. Jan Patrick KANNALLY & another.
    17-P-1409
    Appeals Court of Massachusetts.
    Entered: September 13, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Northeastern Forensics, Inc.

   The plaintiff, Wright Group, Inc., appeals from Superior Court judgments entered against it after the allowances of motions made by the defendants, Jan Patrick Kannally and Northeastern Forensics, Inc., to dismiss and for summary judgment. The plaintiff also challenges the denial of its motion to amend its complaint. We affirm.

The plaintiff alleged four causes of action in its complaint against the defendants. Count I alleged that the defendants misappropriated the plaintiff's trade secrets, in violation of G. L. c. 93, § 42. Count II alleged that Kannally breached his duty of loyalty to the plaintiff while he was in the plaintiff's employ. Count III alleged that the defendants interfered with the plaintiff's business and advantageous relationships. Lastly, count IV alleged that the defendants violated G. L. c. 93A based on the defendants' misappropriation of the plaintiff's trade secrets.

Procedural background. We recount the lengthy procedural history of the case. The plaintiff filed suit on March 17, 2014, and immediately moved for a preliminary injunction against the defendants, which was denied for failure to demonstrate either a substantial likelihood of success on the merits or a substantial risk of immediate and irreparable harm. The parties thereafter exchanged discovery requests, which resulted in numerous objections from both sides. The defendants specifically requested that the plaintiff provide "a bona fide definition or description of its alleged trade secrets and/or claimed proprietary information." Upon the plaintiff providing the defendants with notice of a deposition date and that it planned to depose the defendants about their client relations and testing methods, the defendants filed an emergency motion for a protective order. This motion was denied "without prejudice to re-file after compliance with Superior Court Rule 9C."

After a Rule 9C conference on February 3, 2015, the defendants filed another motion for a protective order, seeking "to protect themselves from the unwarranted fishing expedition by [the] [p]laintiff into their new business." On March 12, 2015, a judge allowed the motion in part, ordering that "[t]he plaintiff shall not conduct further discovery" until it serves the defendants with a "written, specific designation of those trade secrets claimed to form the basis of this lawsuit." In June, 2015, the defendants filed a "motion to dismiss the complaint for [the plaintiff's] failure to follow the court's orders to define the alleged trade secrets." On August 27, 2015, in an effort to "show restraint to the extent it will allow a last chance for full and unequivocal compliance with the [March 12, 2015,] order to divulge the specific trade secrets at issue," the motion judge denied the defendants' motion to dismiss without prejudice. The motion judge gave the plaintiff fourteen days to serve the defendants "with the specific designation of its claimed trade secrets, including its client lists and proprietary testing and methodology, as previously ordered on March 12, 2015."

On September 10, 2015, the plaintiff served the defendants with impounded documents titled "Plaintiff's Specific Designation of its Trade Secrets." Such documentation comprised two exhibits: Exhibit A, titled "Client of Wright Group"; and Exhibit B, titled "Outline of Examination Protocols." The defendants filed a renewed motion to dismiss the complaint, arguing that these impounded documents failed to satisfy the court's order that the plaintiff specifically define any trade secrets that formed the basis of the lawsuit. After an in-camera review of the impounded documents, a motion judge granted the defendants' motion to dismiss as to counts I and IV, misappropriation of trade secrets and violation of c. 93A, respectively. The motion judge ruled that

"the materials that [the] plaintiff claimed were trade secrets misappropriated by the defendant Kannally, were not at all trade secrets. Both exhibits A and B were compilations of information prepared for filing in court and were not actual business documents of the plaintiff. Thus, there could be no allegation that defendant Kannally misappropriated these documents. Additionally these documents were devoid of content that could, even using the term broadly, be deemed to be trade secrets."

The parties resumed discovery in January, 2016, on counts II and III, Kannally's alleged breach of his duty of loyalty and the defendants' tortious interference with the plaintiff's business and advantageous relationships, respectively. On May 27, 2016, the plaintiff served a motion to amend its complaint, seeking to add claims for interference with contractual relationships and violation of G. L. c. 93A. Following a hearing on July 28, 2016, this motion was denied.

In October, 2016, the defendants moved for summary judgment on both count II and count III, arguing that there is no dispute to any material fact. This motion was granted and judgment entered on those counts. The plaintiff appeals, challenging the dismissal of counts I and IV; the summary judgment against it on count III; and the denial of its motion to amend its complaint.

Discussion. 1. Motion to dismiss counts I and IV. We review the allowance of a motion to dismiss de novo. The plaintiff maintains that the judge erred in dismissing count I, which alleged that the defendants misappropriated the plaintiff's trade secrets. The plaintiff argues that it produced a specific designation of information, i.e., its client list and testing protocol, that satisfies the trade secrets requirements. We disagree.

General Laws c. 93, § 42, inserted by St. 1967, c. 817, § 3, provides in pertinent part that it is unlawful to "embezzle[ ], steal[ ] or unlawfully take[ ], carr[y] away, conceal[ ], or cop[y], or by fraud or by deception obtain[ ], from any person or corporation, with intent to convert to [one's] own use, any trade secret, regardless of value." A trade secret is defined as

"any formula, pattern, device or compilation of information which is used in one's business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it. It may be a formula for a chemical compound, a process of manufacturing, treating or preserving materials, a pattern for a machine or other device, or a list of customers.... A trade secret is a process or device for continuous use in the operation of the business. Generally it relates to the production of goods, as, for example, a machine or formula for the production of an article.... The subject matter of a trade secret must be secret. Matters of public knowledge or of general knowledge in an industry cannot be appropriated by one as his secret" (emphasis supplied).

J. T. Healy & Son, Inc. v. James A. Murphy & Son, Inc., 357 Mass. 726, 736 (1970), quoting from Restatement: Torts, § 757, comment b.

Here, the information contained in the plaintiff's impounded documents, i.e., a list of companies and a summary of the plaintiff's fire testing procedures, do not amount to trade secrets. The plaintiff's list of companies in Exhibit A consists of merely the names of insurance companies, manufacturers, and law firms, all of which is public information and not confidential. Exhibit B is devoid of any information that goes beyond general knowledge in the fire testing industry. Such information "cannot be appropriated by [the defendants] as [the plaintiff's] trade secret." Ibid. Furthermore, we agree with the motion judge that these impounded documents were just "compilations of information prepared for filing in court and were not actual business documents of the plaintiff" that the defendants could potentially have misappropriated.

2. Motion for summary judgment on count III. The plaintiff next argues that the judge erred in granting the defendants' motion for summary judgment on count III, tortious interference with business and advantageous relationships. The plaintiff maintains that (1) material facts had not yet been disclosed, i.e., the defendants' financial disclosures on the amount of revenue earned from common clients with the plaintiff; and (2) notwithstanding the defendants' financial disclosures, the plaintiff had "offered proof that substantiated a successful claim for interference."

There are four elements that must be met in order to satisfy a claim for interference with business relations: "(1) [the plaintiff] had a business relationship for economic benefit with a third party, (2) the defendants knew of the relationship, (3) the defendants interfered with the relationship through improper motive or means, and (4) the plaintiff's loss of advantage resulted directly from the defendants' conduct." Cavicchi v. Koski, 67 Mass. App. Ct. 654, 657 (2006). Here, the plaintiff failed to provide sufficient evidence, even in the light most favorable to it, that Kannally contacted its clients with an improper motive or through improper means, a required element of a claim for tortious interference with business relationships. See ibid.; United Truck Leasing Corp. v. Geltman, 406 Mass. 811, 816 n.8 (1990). We agree with the judge that while Kannally soliciting clients may be considered intentional, it is evident that his motive was to promote his own business, not to hurt the plaintiff. See Hunneman Real Estate Corp. v. The Norwood Realty, Inc., 54 Mass. App. Ct. 416, 429 (2002), quoting from Restatement (Second) of Torts § 768(1)(d), and comment g, at 43 (1979) ("If [the interfering party's] conduct is directed, at least in part, to [advancing his competitive interest], the fact that he is also motivated by other impulses, as, for example, hatred or a desire for revenge is not alone sufficient to make his interference improper").

3. Motion to amend complaint. Finally, the plaintiff argues that the judge abused his discretion in denying the plaintiff's motion to amend its complaint, because, according to the plaintiff, its additional claim for interference with contract relations was not redundant but rather essential to its presentation. The determination whether to grant a motion to amend is within the sound discretion of the motion judge, and "leave should be granted unless there appears some good reason for denying the motion." Vakil v. Vakil, 450 Mass. 411, 417 (2008), quoting from Goulet v. Whitin Mach. Works, Inc., 399 Mass. 547, 549 (1987). Here, the motion judge concluded, and we agree, that the plaintiff's claim for interference with contract relations is functionally similar to its claim that the defendants interfered with the plaintiff's advantageous relationships. The plaintiff maintains that although the substantive elements of the two claims are substantially similar, they are different. Even if the judge abused his discretion in denying the plaintiff's motion to amend its complaint, which we do not conclude, the plaintiff nevertheless failed to present a dispute that any interference on the defendants' part was accomplished through improper means or motive, a required element for both claims. We, therefore, affirm.

Order of dismissal entered November 16, 2015, affirmed.

Judgment entered February 27, 2017, affirmed.

      Kannally is the president and sole director of the codefendant, Northeastern Forensics, Inc.

      We treat the order entered on November 16, 2015, dismissing counts I and IV of the complaint, as a final judgment on those claims.

      The plaintiff does not address the dismissal of count II on appeal.

      The plaintiff sought to preclude the defendants from (1) continuing to contact or do business with any current or past clients of the plaintiff, (2) utilizing any of the plaintiff's "proprietary methods of testing products for causes of fire or other product liability incidents," and (3) "taking, receiving, concealing, assigning, transferring, leasing, pledging, copying or otherwise using any trade secrets of [the plaintiff]."

      The plaintiff "resisted producing this information," claiming that such "information and data are confidential and would, if divulged, provide Kannally with possibly more information than he has misappropriated to date."

      The judge further ruled that "[t]his designation shall be subject to a confidentiality agreement which the parties shall jointly draft and apply to all future discovery in this matter." The parties were unable to reach a mutually agreeable confidentiality agreement, so the court issued its own confidentiality order on May 12, 2015. The plaintiff filed a motion for reconsideration of the confidentiality order. This motion was denied on June 12, 2015.

      Exhibit A consisted of a fifty-two page list of the plaintiff's clientele. Exhibit B consisted of a three-page outline of the plaintiff's "specific protocols" and "specific testing procedures" for examining the origin and cause of fires.

      The plaintiff sought interlocutory review of this decision with a single justice of this court. The interlocutory appeal was denied.

      Over the course of discovery, the defendants filed a motion for a protective order against the plaintiff's overly broad discovery request, which was allowed; the plaintiff filed an emergency motion to compel the defendants to produce certain financial information, which was denied; and the plaintiff filed a renewed motion to compel discovery, which was also denied.

      Because we conclude that the judge did not err in dismissing the plaintiff's misappropriation claim, it follows that dismissal of the plaintiff's G. L. c. 93A claim based on the defendants' alleged misappropriation was also not error.

      The plaintiff's argument that the defendants' financial disclosures would have provided material facts is unpersuasive. While such information might have assisted in assessing damages, it would not have rescued the plaintiff from failing to satisfy the requirement that the defendants' conduct was accomplished through "improper motive or means." Cavicchi, 67 Mass. App. Ct. at 657.

      "To make out a claim of tortious interference with contractual relations, a plaintiff must demonstrate that '(1) he had a contract with a third party; (2) the defendant knowingly induced the third party to break that contract; (3) the defendant's interference, in addition to being intentional, was improper in motive or means; and (4) the plaintiff was harmed by the defendant's actions.' " Cavicchi, 67 Mass. App. Ct. at 657, quoting from Draghetti v. Chmielewski, 416 Mass. 808, 816 (1994).