author: SULLIVAN, J.

text:
    Kenneth PERREAULT v. AIS AFFINITY INSURANCE AGENCY OF NEW ENGLAND, INC.
    No. 17-P-1139
    Appeals Court of Massachusetts, Suffolk..
    Argued May 8, 2018. Decided August 2, 2018.
    Keith L. Miller, Boston, for the plaintiff.
    Geoffrey M. Raux (Noah G. Brown also present), Boston, for the defendant.
    Present: Sullivan, Neyman, & Englander, JJ.
   SULLIVAN, J.

This is an action against an insurance broker that arises out of an attorney malpractice claim. The plaintiff, Kenneth Perreault, sued his former attorney, Simon Mann, for legal malpractice. Mann settled with Perreault and, as part of the settlement, assigned his rights against his malpractice insurance provider, Liberty Insurance Underwriters, Inc. (Liberty), and its broker, AIS Affinity Insurance Agency of New England, Inc. (AON), to Perreault. Perreault then brought a claim against AON for negligence, breach of contract, and violation of G. L. c. 93A. Perreault now appeals from the grant of summary judgment in favor of AON. At issue is whether Perreault presented sufficient evidence from which a finder of fact could conclude that a special relationship existed between Mann and AON, such that AON had a duty to make certain that Mann had adequate malpractice liability insurance to cover all of Mann's work as an attorney. Perreault also claims AON breached a contract with Mann to procure coverage. We affirm.

Background. We summarize the evidence in the summary judgment record in the light most favorable to the plaintiff, the nonmoving party. See Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120, 571 N.E.2d 357 (1991).

1. Legal malpractice claim. In September, 2008, Perreault retained Mann to represent him in a wrongful death action. Perreault wanted Mann to advise him regarding an action against tobacco companies for the death of his wife due to cancer. Perreault's wife died in March, 2006. The statute of limitations on a wrongful death action is three years. See G. L. c. 229, § 2.

In May, 2009, Mann obtained a medical opinion regarding the likelihood of success of an action by Perreault. Mann retained a registered nurse, who opined that the case had merit but questioned whether the statute of limitations had run. Mann withheld this report from Perreault and in July, 2009, sent a letter to Perreault stating that there was no likelihood of success on the wrongful death claim and terminating his representation. Perreault sought the opinion of another attorney, who requested Mann's file and determined that there was a viable claim of attorney malpractice. Thereafter, Perreault sent Mann a G. L. c. 93A demand letter and filed suit against Mann.

2. Legal malpractice insurance policies. There are three relevant insurance policies, covering three firms with which Mann was involved during the relevant time period. All of these policies were "claims made and reported" policies. The parties agree that coverage was available only when both the alleged misconduct and resulting claim arose during a policy period. That is, if the alleged malpractice arose before the policy period, coverage would only be available if the malpractice arose on or after a policy's "prior acts" date, or fell within an "automatic extended reporting period" of sixty days after the policy terminated.

a. A & G policy. In 2006, Mann was an associate at the law firm of Arnowitz & Goldberg (A & G). The law firm consisted of Mann, Jerrold Arnowitz, and Henry Goldberg. Mann had no involvement in acquiring or purchasing the A & G professional liability policy with Liberty through AON. He did not review the A & G policy, did not discuss the policy with Arnowitz or Goldberg, and had limited communication with AON regarding the A & G policy.

b. AGM policy. In 2007, Arnowitz, Goldberg, & Mann LLC (AGM) was formed. Mann, now one of three managing members of AGM, contacted Kathleen Burns at AON in August, 2007, to obtain insurance coverage for AGM. Burns sent Mann an application and helped him fill out pertinent information to complete the application. Although Mann claims that he "relied exclusively on [Burns's] advice and recommendation as to different types of policies," Burns did not evaluate AGM's particular coverage needs and was not asked to provide risk management services or consultation regarding the scope of insurance that AGM might need. AON placed AGM's malpractice insurance policy with Liberty.

c. Mann Firm policy. In late December, 2009, Mann left AGM. Mann opened the Law Offices of Simon Mann (Mann Firm) and contacted Burns to obtain a new malpractice policy for the Mann Firm. Mann relied on Burns regarding insurance coverage for the Mann Firm. Mann instructed Burns to purchase a new policy for the Mann Firm with a starting date of January 4, 2010. Mann did not disclose the Perreault claim on the application, but he told Burns that he "needed coverage for all my past work since I first became an attorney in 2006." On December 15, 2009, Burns responded, "Please make [the AGM policy] payment so that [it] does not cancel so we can offer you prior acts." Mann then sent AON the AGM policy payment.

On December 24, 2009, Mann sent instructions to Burns via electronic mail message (e-mail) to cancel the AGM policy. On December 28, 2009, Burns responded, "I just need this request on firm letterhead with the date to cancel. Please let the other attorneys know they will not have any coverage. The [A & G] policy was cancelled for non payment. Please read (all attorneys) the provision for the extended reporting period endorsement." That same day Mann responded on AGM letterhead, "Please cancel the insurance policy for [AGM] effective no later than December 31, 2009." Mann did not purchase extended reporting coverage for the Mann Firm. Immediately thereafter, Burns responded, "We received the request and will cancel the [AGM] policy 12/31."

The Mann Firm account was then transferred to Matthew Kiernan of AON, who handled new accounts. Kiernan communicated with Mann about the Mann Firm policy application. On January 4, 2010, Kiernan sent a completed application to Mann for review and approval. Mann executed the application, manually checked a box indicating that it was for a policy with a January 4, 2010, prior acts date, and returned the executed application to AON on January 5. On February 2, 2010, the Mann Firm policy issued with coverage for the period of January 4, 2010, to January 4, 2011. The policy had a prior acts date of January 4, 2010, and no tail. After receiving the policy, Mann did not review it.

d. Commencement of the malpractice action. In March, 2010, Perreault sent a G. L. c. 93A demand letter to Mann. Mann sought coverage for the malpractice action from Liberty. Liberty declined coverage under two of the three policies at issue: The AGM policy because it was cancelled, pursuant to Mann's request, on December 31, 2009; and the Mann Firm policy because it was not in effect until January 4, 2010, and did not have prior acts coverage before that date, or a tail. Liberty agreed to provide a defense under the A & G policy. Mann hired new counsel and reached a settlement with Perreault, assigning his rights to any claims against Liberty and AON to Perreault. This litigation ensued.

Discussion. On appeal, "[w]e review a grant of summary judgment de novo." Miller v. Cotter, 448 Mass. 671, 676, 863 N.E.2d 537 (2007). We look to the summary judgment record to determine "whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law." Augat, Inc., 410 Mass. at 120, 571 N.E.2d 357. See Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002).

1. Negligence -- duty. As the plaintiff properly acknowledges, there is "no general duty of an insurance agent to ensure that the insurance policies ... provide coverage that is adequate for the needs of the insured." Martinonis v. Utica Natl. Ins. Group, 65 Mass. App. Ct. 418, 420, 840 N.E.2d 994 (2006). See Robinson v. Charles A. Flynn Ins. Agency, Inc., 39 Mass. App. Ct. 902, 902-903, 653 N.E.2d 207 (1995). However, an insurance agent may acquire a greater duty of investigation, advice, and assistance to an insured by reason of "special circumstances." McCue v. Prudential Ins. Co. of America, 371 Mass. 659, 661-662, 358 N.E.2d 799 (1976). Martinonis, supra at 421, 840 N.E.2d 994. Such "special circumstances of assertion, representation and reliance" may create a duty of due care. McCue, supra at 661, 358 N.E.2d 799, quoting from Rapp v. Lester L. Burdick, Inc., 336 Mass. 438, 442, 146 N.E.2d 368 (1957).

Factors creating special circumstances include (1) a prolonged business relationship; (2) the complexity and comprehensiveness of the customer's coverages; (3) the frequency of contact between a customer and agent to attend to the customer's insurance needs;

and (4) the extent to which a customer relies on the advice of the agent by reason of the complexity of the policies. See McCue, 371 Mass. at 661-663, 358 N.E.2d 799 ; Bicknell, Inc. v. Havlin, 9 Mass. App. Ct. 497, 500-501, 402 N.E.2d 116 (1980) ; Construction Planners, Inc. v. Dobax Ins. Agency, Inc., 31 Mass. App. Ct. 672, 674-676, 583 N.E.2d 255 (1991). The list is not exhaustive; for example, enhanced duties will arise "when the agent holds himself out as an insurance specialist, consultant or counselor and is receiving compensation for consultation and advice apart from premiums paid by the insured." Baldwin Crane & Equip. Corp. v. Riley & Rielly Ins. Agency, Inc., 44 Mass. App. Ct. 29, 32, 687 N.E.2d 1267 (1997) (quotation omitted).

Viewing the undisputed facts in the light most favorable to the plaintiff, no rational finder of fact could conclude that special circumstances existed such that AON owed Mann a duty of care. Although Burns had worked with A & G since 2005, Mann did not have a prolonged business relationship with AON and had no involvement in acquiring or purchasing the A & G professional liability policy. Mann did not communicate personally with AON until 2007, when he sought professional liability coverage for AGM, and then again in 2009, to place the Mann Firm coverage. His relationship with AON spanned only three years. Contrast McCue, 371 Mass. at 660, 662, 358 N.E.2d 799 (twenty-eight-year relationship between insured and agent involving seven different policies).

Mann's insurance needs were not complex but, rather, were limited to basic malpractice liability insurance coverage. Burns communicated perfunctorily with Mann via e-mail, telephone, and letter. Burns did not evaluate AGM's particular coverage needs and was not asked to provide risk management services or consultation regarding the scope of insurance that AGM or the Mann Firm might need. Contrast McCue, 371 Mass. at 662, 358 N.E.2d 799 (agent made monthly visits to attend to client's insurance needs); Martinonis, 65 Mass. App. Ct. at 421-422, 840 N.E.2d 994 (plaintiffs asked specific questions about adequacy of policy limits and were assured by agent that policy limits were proper). Neither AGM nor Mann paid any additional fees for professional advice. See Baldwin Crane & Equip. Corp., 44 Mass. App. Ct. at 32, 687 N.E.2d 1267.

Perreault looks to statements from AON's Web site to support the existence of a special relationship. As the motion judge stated, "[S]uch reliance is misplaced because [Perreault] has not even alleged that Mann relied on, or ever even read, these statements prior to this lawsuit." Furthermore, the affidavit of Joseph Guerrero, president of AON's "Attorneys' Advantage" and "A & E Advantage"

divisions, states that the Web site Perreault references pertained to a division of AON with which Mann did not deal and listed services that the division Mann dealt with did not provide to attorneys who purchased the malpractice liability policies. Neither AGM nor the Mann Firm retained the other AON division to provide additional services.

Perreault also contends that Burns was bound to issue Mann a policy with adequate prior acts coverage because Mann informed Burns that he "needed coverage for all [his] past work since [he] first became an attorney in 2006," and Burns responded, "Please make [the AGM policy] payment so that [it] does not cancel so we can offer you prior acts." This exchange did not create a special relationship. Burns told Mann that he needed to keep the AGM policy in force if he (or other members of the firm) wanted to be offered prior acts coverage in the future. See note 3, supra. She did not promise to provide prior acts coverage, advise him regarding eligibility, or advise him regarding his insurance needs.

Mann then departed from the path laid out in Burns's e-mail and directed that the AGM policy lapse no later than December 31, 2009. He then manually checked a box on the Mann Firm policy application setting the prior acts coverage date of January 4, 2010. He did not request a tail, despite the fact that Burns told him to read the pertinent clause regarding coverage extensions. When Mann received the Mann Firm policy it specifically stated that it had a prior acts date of January 4, 2010. In the absence of a special relationship, Mann was obligated to review the Mann Firm policy before signing. "[I]n such circumstances, a business entity such as [Mann] should read its policies rather than rely on representations by an agent." See Sarnafil, Inc. v. Peerless Ins. Co., 418 Mass. 295, 307, 636 N.E.2d 247 (1994).

Summary judgment was properly granted on the negligence claim as a matter of law because Perreault did not demonstrate that there were facts in dispute that would establish a duty running from AON to Mann.

2. Contract claim. Perreault contends that even if there was no special relationship, AON's failure to secure prior acts coverage was in breach of contract. The record is devoid of evidence that would permit a fact finder to conclude that there was a contract that obligated AON to ensure Mann had particular coverage. Once again, Perreault relies on the e-mail exchange where Mann stated that he "needed coverage for all [his] past work since [he] first became an attorney in 2006," and Burns's response, "Please make [the AGM policy] payment so that [it] does not cancel so we can offer you prior acts." This exchange did not set forth the material terms of an agreement. See Rodriguez v. Massachusetts Bay Transp. Authy., 92 Mass. App. Ct. 26, 29-30, 80 N.E.3d 365 (2017) (contract must state terms with specificity). Rather, Burns told Mann to keep the old policy in place so that he could ask for prior acts coverage in the future. Mann sent in a payment for the AGM policy, but he soon thereafter shifted course and terminated the AGM coverage no later than December 31, 2009. Mann did not request either a prior acts date going back to 2006 or a tail, despite having the extended reporting period endorsement called to his attention. No contract was made.

3. Chapter 93A. In the absence of a special relationship, there is no merit to Mann's c. 93A claim. Viewed in the light most favorable to Mann, neither Burns's handling of Mann's request for insurance nor the modification of the A & G policy to exclude him constituted an unfair or deceptive act under G. L. c. 93A. See generally Auto Flat Car Crushers, Inc. v. Hanover Ins. Co., 469 Mass. 813, 820, 17 N.E.3d 1066 (2014). Cf. Construction Planners, Inc., 31 Mass. App. Ct. at 677-678, 583 N.E.2d 255. Summary judgment was properly granted as a matter of law.

Judgment affirmed.

      Mann purchased Liberty policies through AON. Separate litigation between Liberty and Perreault has concluded. Liberty is not a party to this litigation.

      Although we have conducted a de novo review, we acknowledge the judge's thorough and well-reasoned memorandum of decision.

      As is discussed infra, Mann also had the option to purchase an additional period of extended reporting, often referred to as a "tail," for a one-year, two-year, three-year, five-year, or unlimited term, but did not.

      The Mann Firm could take advantage of AGM's prior acts coverage if AGM was considered to be a "predecessor" of the Mann Firm, making the predecessor firm (AGM) a "named insured." The Liberty policy also defined "predecessor" as
      "any law firm, law partnership or professional corporation if fifty percent (50%) or more of the lawyers who were shareholders in, partners of, or employees of such firm, partnership or professional corporation immediately thereafter became partners of, shareholders in, or employees of the named insured."
      Mann did not provide Burns with any information regarding the number of attorneys in his firm from AGM. As it turned out, since the Mann Firm was not composed of fifty percent or more of the attorneys working at AGM, AGM was not by definition a "predecessor" of the Mann Firm, although a firm formed by the remaining two partners of AGM may have been a predecessor firm. In addition, predecessor coverage was available only if coverage was continuous, without a gap.

      The policy's sixty-day automatic extended reporting period extended the period to report claims under the AGM policy to March 1, 2010.

      The sixty-day automatic extended reporting period terminated on March 1, 2010. Mann did not elect a longer period.

      Following Mann's departure, A & G contacted Burns and requested that Liberty issue a "Specific Attorney(s) Exclusion" that eliminated coverage for Mann's acts as an A & G associate. Mann had not asked to be updated if there were any changes to the A & G policy, and his former partners did not inform him.

      AON also asserts that the Mann Firm could not independently obtain prior acts coverage because it was a newly formed entity which had not been in existence at the time the claim arose. We need not reach that issue because prior acts coverage was not requested.

      Perreault also maintains that Mann had coverage under the AGM policy because it was not formally cancelled until January 20, 2010. The AGM policy, as requested, was cancelled on December 31, 2009. The policy states, "This policy may be cancelled by the named insured by surrender thereof to us or by mailing to us a written notice stating when thereafter such cancellation shall be effective." Mann wrote a letter to AON in December, 2009, requesting the AGM policy be cancelled no later than December 31, 2009. December 31, 2009, was the effective date of the cancellation as a matter of law. See Palardy v. Canadian Universal Ins. Co., 360 F.2d 1007, 1009-1010 (2d Cir. 1966) (interpreting like provision of a products liability policy).


source: Caselaw Access Project

author: VUONO, J.

license: Public Domain

text:
    AA & D MASONRY, LLC v. SOUTH STREET BUSINESS PARK, LLC, & others.
    No. 16-P-1752.
    Appeals Court of Massachusetts, Norfolk..
    Argued November 13, 2017. Decided August 8, 2018.
    Mark C. O'Connor, Boston, for the plaintiff.
    Samuel Perkins, Boston, for Olga L. Franchi & others.
    Present: Vuono, Rubin, & Henry, JJ.

      David A. Franchi, Olga L. Franchi, Domenic Franchi, John S. Franchi, and Lisa M. Carroll.

   VUONO, J.

The plaintiff, AA & D Masonry, LLC (AA & D), appeals from a judgment dismissing its complaint on statute of limitations grounds. As will be discussed in more detail below, this is the latest in a series of actions brought by AA & D to obtain payment for masonry work it performed in 2009, in connection with the construction of an office park (the project) on property owned by the defendant, South Street Business Park, LLC (South Street). The first case resulted in default judgments against South Street and the project's contractor, Crowsnest Corporation (Crowsnest). The present complaint was filed on October 30, 2015, and asserts claims against South Street, its principal, David A. Franchi, and members of David's family including Olga L. Franchi (mother), Domenic Franchi (father), John S. Franchi (brother), and Lisa M. Carroll (sister). AA & D claims that each of the individual defendants had sufficient involvement and ownership interest in South Street to be held liable for South Street's breach of contract and the default judgment under the theory of piercing the corporate veil. For the reasons that follow, we conclude that the complaint was properly dismissed.

Background. We summarize the facts alleged in AA & D's complaint and describe the history of prior related litigation in order to provide context for our discussion of the issues. On or about January 6, 2009, AA & D entered into a written contract with Crowsnest for the benefit of South Street to furnish masonry labor and materials to the project. The contract sum was $409,452. The complaint alleges that AA & D was induced to enter the contract by South Street and Crowsnest through representations of the project manager that AA & D would be paid in installments from the proceeds of a construction loan from Wells Fargo Bank, N.A. (Wells Fargo), which was secured by a mortgage on the property.

AA & D completed its work in June of 2009, but it was not paid as promised. This led AA & D to file a mechanic's lien under G. L. c. 254, § 4. AA & D recorded a notice of the contract and a statement of account in the Middlesex South District registry of deeds on June 29, 2009, and August 26, 2009, respectively. By that time, as AA & D subsequently learned, South Street had granted a mortgage to Olga in the amount of $4,750,000. The mortgage was secured by the property and recorded at the same Registry on March 12, 2009. A discharge of that mortgage was recorded shortly thereafter, on March 25, 2009.

On August 27, 2009, AA & D commenced an action to enforce its mechanic's lien against Crowsnest, South Street, and Wells Fargo as a party in interest. Neither Crowsnest nor South Street filed a response to the complaint. On April 21, 2010, AA & D obtained separate default judgments against South Street and Crowsnest, in the amount of $409,452 plus interest (the South Street judgment). No portion of the South Street judgment has been paid to AA & D.

More than three years later, on or about January 11, 2013, AA & D filed a new lawsuit against Crowsnest, David, and Olga, alleging that David, a principal of Crowsnest, and Olga, a de facto principal, were jointly and severally liable with Crowsnest for contempt for nonpayment of the South Street judgment. The complaint further alleged claims of fraudulent misrepresentation, breach of the covenant of good faith and fair dealing, unjust enrichment, conversion, and violation of G. L. c. 93A (the 2013 case).

Olga moved to dismiss the complaint in the 2013 case under Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974). In its opposition to Olga's motion, filed on March 4, 2013, AA & D asserted that (1) "[t]he public records of this court and Middlesex South [r]egistry of [d]eeds indicate a pattern by David Franchi to defraud his creditors through his corporate entities. In some instances this appears to have been accomplished with the assistance of his mother, Olga Franchi"; (2) "[a] search of David Franchi's name through the Trial Court Information Center reveals dozens of suits were filed in Middlesex Superior Court by creditors and contractors against him and the corporate entities in which he was a principal"; (3) in addition to its suit, AA & D had discovered at least three other suits filed against Crowsnest and South Street by subcontractors alleging nonpayment for work on the project; and (4) AA & D had recently discovered, from records relating to an action on the mortgage filed in Superior Court by Wells Fargo against South Street and David, that David and South Street had defaulted on the construction loan in April of 2009. AA & D pointed specifically to the $4,750,000 mortgage to Olga, as recorded in the Middlesex South District registry of deeds (and a copy of which was attached to AA & D's opposition), as evidence of collusion and fraud because it showed that Olga was involved in diverting funds from the Wells Fargo loan. AA & D argued that the timing of South Street's April 1, 2009, default on the Wells Fargo loan "is curious because it comes immediately after South Street granted Olga Franchi a mortgage in the amount of $4,750,000 and discharged the same in less than thirty days." Ultimately, Olga's motion to dismiss the complaint was allowed. AA & D appealed, and the judgment of dismissal as to Olga was affirmed in an unpublished memorandum and order issued pursuant to our rule 1:28. See AA & D Masonry, LLC v. Franchi, 87 Mass. App. Ct. 1136, 33 N.E.3d 1269 (2015). No final judgment appears to have entered with respect to David and Crowsnest.

As indicated, AA & D brought this Superior Court action on October 30, 2015. The allegations in the current complaint mirror those asserted in the 2013 case (albeit with more particularity) and are primarily as follows: (1) South Street fraudulently diverted loan proceeds from Wells Fargo to other entities owned and controlled by the individual defendants; (2) the defendants confused and intermingled the assets of South Street and their other entities while failing to observe corporate formalities; (3) on February 25, 2009, South Street fraudulently granted Olga a mortgage in the amount of $4,750,000; (4) South Street defaulted multiple times on the Wells Fargo loan and concealed that fact from AA & D; (5) David and Crowsnest also concealed from AA & D that they had been sued by another contractor in connection with the project; and (6) the individual defendants are de facto principals, owners, and alter egos of South Street and, as such, they controlled and managed South Street directly or through David as their agent. AA & D's complaint seeks relief for contempt of the South Street judgment (count I), fraud in the inducement (count II), conversion (count III), unjust enrichment (count IV), and violations of G. L. c. 93A (count V). It also seeks, in count VI, to pierce the corporate veil to hold the individual defendants liable for South Street's conduct as stated in counts II through V.

The defendants filed motions to dismiss AA & D's complaint on the ground, among others, that counts II through VI are barred by the applicable statutes of limitations, the longest of which is six years. They maintained that AA & D was harmed in 2009, when it was not paid from the proceeds of the Wells Fargo loan as promised. AA & D did not dispute that the applicable statutes of limitations had expired unless tolling applied. Rather, it argued that it was entitled to tolling of the limitations periods under the discovery rule and the fraudulent concealment statute, G. L. c. 260, § 12, because it could not reasonably have discovered the identity of those responsible for its injury until 2013, when it obtained documents related to the Wells Fargo loan.

AA & D did not argue in its oppositions, as it argues now, that count VI included an action on an unsatisfied judgment and was subject to a twenty-year period of limitations. See G. L. c. 235, § 19. The motion judge therefore did not address that issue. After judgment entered, AA & D filed a motion to reconsider in which it raised this claim for the first time. No action appears to have been taken on the motion for reconsideration, nor was it the subject of a notice of appeal. We decline to address the issue. See Commissioner of Rev. v. Comcast Corp., 453 Mass. 293, 312-313, 901 N.E.2d 1185 (2009) (new legal theory presented for the first time in motion for reconsideration is waived).

The motion judge concluded that AA & D's claims are time-barred because no tolling applies, and dismissed the complaint pursuant to Mass.R.Civ.P. 12(b)(6). On appeal, AA & D does not challenge the dismissal of count one. For substantially the reasons articulated by the judge, we conclude that the statutes of limitations on AA & D's remaining claims were not tolled. We therefore affirm the judgment of dismissal.

Discussion. "We review the allowance of a motion to dismiss de novo, accepting the allegations in the complaint as true and drawing all reasonable inferences in the plaintiff's favor." Harrington v. Costello, 467 Mass. 720, 724, 7 N.E.3d 449 (2014). "To survive a motion to dismiss, the facts contained in the complaint, and the reasonable inferences drawn therefrom, must " 'plausibly suggest[ ]" ... an entitlement to relief.' " Flagg v. AliMed, Inc., 466 Mass. 23, 26-27, 992 N.E.2d 354 (2013), quoting from Iannacchino v. Ford Motor Co., 451 Mass. 623, 636, 888 N.E.2d 879 (2008).

1. The discovery rule. The Supreme Judicial Court has adopted "a discovery rule for the purpose of determining when a cause of action accrues, and thus when the statute of limitations starts to run." Bowen v. Eli Lilly & Co., 408 Mass. 204, 205, 557 N.E.2d 739 (1990). The rule provides "that a cause of action accrues for purposes of the statute of limitations on the happening of an event likely to put the plaintiff on notice of facts giving rise to the cause of action." Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 520, 677 N.E.2d 159 (1997). "Under the discovery rule, the limitation period accrues when the plaintiff has 'sufficient notice of two related facts: (1) that [it] was harmed; and (2) that [the] harm was caused by the defendant's conduct.' "

Commonwealth v. Tradition (N. Am.) Inc., 91 Mass. App. Ct. 63, 71, 71 N.E.3d 142 (2017), quoting from Harrington v. Costello, supra at 725, 7 N.E.3d 449. The knowledge required to trigger commencement of the statute of limitations " 'is not notice of every fact which must eventually be proved in support of the claim,' but rather 'knowledge that an injury has occurred.' " Pagliuca v. Boston, 35 Mass. App. Ct. 820, 824, 626 N.E.2d 625 (1994), quoting from White v. Peabody Constr. Co., 386 Mass. 121, 130, 434 N.E.2d 1015 (1982).

"A plaintiff may be put on 'inquiry notice' [that a cause of action has accrued] where it is informed of facts that would suggest to a reasonably prudent person in the same position that an injury has been suffered as a result of the defendant's conduct." Commonwealth v. Tradition (N. Am.) Inc., supra. See Felton v. Labor Relations Commn., 33 Mass. App. Ct. 926, 928, 598 N.E.2d 687 (1992) ;

Szymanski v. Boston Mut. Life Ins. Co., 56 Mass. App. Ct. 367, 371, 778 N.E.2d 16 (2002). "[T]he factual inquiry focuses on which was the first event reasonably likely to put the plaintiff on notice that the defendant's conduct had caused him injury." Ibid.

As previously noted, AA & D asserts that its causes of action against the individual defendants did not accrue until March or April of 2014. According to AA & D, it could not with reasonable diligence have discovered that the defendants were responsible for its injury before reviewing various documents that were obtained while conducting discovery in connection with the 2013 case. Those documents allegedly show that (1) David is not the sole owner of South Street, (2) John and Lisa (together with David) were coguarantors of the Wells Fargo loan, (3) South Street maintained a working capital account at Middlesex Savings Bank and loan proceeds were deposited into that account and then almost immediately transferred to other bank accounts in the name of other entities the defendants owned and controlled, and (4) a notice of default on behalf of Wells Fargo to South Street dated August 20, 2008, specified that the basis for the claim of default was the failure of the borrower to utilize loan proceeds exclusively for the development project as required by the loan documents. (See note 11, supra.)

The problem with AA & D's argument is that we test the accrual of a cause of action by what a reasonable person in the plaintiff's position would have known "or on inquiry would have discovered at the various relevant times." Bowen v. Eli Lilly & Co., supra at 210, 557 N.E.2d 739. We believe that a reasonably prudent plaintiff in AA & D's position, upon not being paid any of the over $400,000 due after six months of contracted labor, would have made inquiries to determine how the Wells Fargo construction loan proceeds had been spent. See Friedman v. Jablonski, 371 Mass. 482, 486, 358 N.E.2d 994 (1976) (as of time of sale, plaintiff buyers bringing action for deceit in connection with sale of real estate could have taken steps to discover misrepresentations and therefore cause of action accrued at that time). It is clear that AA & D would have learned that other contractors had not been paid, that South Street had defaulted on the Wells Fargo loan both before and after contracting with AA & D, and that a "fraudulent" mortgage had been granted to Olga and discharged ten days later, had AA & D followed up on information that was available through the Trial Court Information Center or recorded in the Middlesex South District registry of deeds in 2009, as it apparently did before filing its opposition to the motion to dismiss in the 2013 case. There are no allegations in the complaint that support the inference that AA & D was able to discover this information in 2013, but not in 2009. Indeed, all of the documents upon which AA & D currently relies to establish fraud and collusion were created in 2009 (see note 11, supra ), and could have been obtained by AA & D when it filed its complaint to enforce its mechanics lien. We therefore conclude that AA & D failed to exercise its duty of reasonable inquiry and, as a result, the discovery rule does not protect AA & D's complaint from dismissal on statute of limitations grounds. See Harrington v. Costello, 467 Mass. at 730 n.17, 7 N.E.3d 449.

2. General Laws c. 260, § 12. Equally unavailing is AA & D's contention that the statutes of limitations were tolled due to the defendants' fraudulent concealment of material facts which prevented it from learning their individual identities and the extent of their involvement in diverting funds from the Wells Fargo loan. See G. L. c. 260, § 12 (excluding for statute of limitations purposes the period before the plaintiff becomes aware of his cause of action "[i]f a person liable to a personal action fraudulently conceals the cause of such action from the knowledge of the person entitled to bring it"). Even accepting for the purposes of this appeal AA & D's allegations that the defendants took actions to conceal their financial circumstances, those actions did not give rise to AA & D's injury. AA & D was injured in 2009, when it was not paid as promised from the proceeds of the Wells Fargo loan. AA & D immediately was aware of its injury and, as we have already discussed, it was or should have been aware of potentially fraudulent conduct when reasonable inquiry would have uncovered the $4,750,000 mortgage granted to Olga. Consequently, and despite the alleged collusion between the defendants, the statutes of limitations were not tolled under G. L. c. 260, § 12.

Judgment affirmed.

RUBIN, J., dissenting in part.

The defendants' motions to dismiss the lawsuit of plaintiff AA & D Masonry, LLC (AA & D), were allowed on statutes of limitations grounds. AA & D now appeals. Because I believe the court majority misapprehends both the doctrine of "inquiry notice" and the significance of recording documents with the registry of deeds, I must respectfully dissent.

In ruling on a motion to dismiss, the allegations of the complaint, and all reasonable inferences favoring the plaintiff that may be drawn therefrom, must be taken as true. See Harrington v. Costello, 467 Mass. 720, 724, 7 N.E.3d 449 (2014). The complaint alleges that the defendant South Street Business Park, LLC (South Street), and Crowsnest Corporation (Crowsnest), an entity owned by defendant David Franchi, were involved in a joint enterprise to develop commercially a parcel of real estate in Marlborough. In February, 2008, South Street obtained a construction loan from Wells Fargo Bank in the original principal amount of $9,550,000 which funds were required to be used exclusively for the construction project in Marlborough. In January, 2009, AA & D entered into a written contract with Crowsnest for the benefit of South Street to furnish masonry labor and materials for the project for the sum of $409,452. The complaint alleges that AA & D was induced to enter the contract by South Street and Crowsnest through representations of the project manager that AA & D would be paid in installments from the proceeds of the Wells Fargo loan. And indeed the written agreement itself provided that payments would be made no later than ten days after receipt by Crowsnest of payment from South Street and/or Wells Fargo.

AA & D completed the work in June, 2009, but was not paid for it. AA & D subsequently filed a mechanic's lien, which, in August, 2009, it sought to enforce by filing a complaint in Superior Court against South Street and Crowsnest. A default judgment was entered in the principal sum of $409,452. South Street has not satisfied any portion of that judgment.

In its complaint AA & D alleges that, unbeknownst to it, South Street defaulted multiple times in its obligations to Wells Fargo under the loan, both prior to and after contracting with AA & D. AA & D alleges that South Street maintained a working capital account at Middlesex Savings Bank, and that loan proceeds were deposited into the account and then almost immediately transferred into other bank accounts in the name of other entities the defendants owned and controlled. During just the six-month time period from January of 2009 to June of 2009, approximately $1,406,000 of deposits into the Middlesex Savings Bank account were diverted to these other entities. And, indeed, a notice of default on behalf of Wells Fargo Bank to South Street dated August 20, 2008, specifies that the basis for the claim of default was the failure of the borrower to utilize loan proceeds exclusively for the development project as required by the loan documents.

Attached to the opposition to the motions to dismiss were, among other things, a repayment and completion guarantee signed by three of the individual defendants, David Franchi, John Franchi, and Lisa Carroll. It guaranteed the $9,550,000 note to Wells Fargo Bank, and also guaranteed "the performance by [South Street] of all the terms and provisions of the Loan Agreement," implying the guarantors maintained a level of control over South Street. The complaint alleges that all the individual defendants were at all material times members or owners of South Street, as well as its alter egos, who controlled and managed South Street directly and/or through defendant David Franchi as their agent, and that they were all partners or principals in the joint venture to commercially develop the subject property.

Count I of the complaint was dismissed for failure to state a claim, and the plaintiff has not appealed that ruling. Count II alleges fraud in the inducement; count III conversion and misappropriation; count IV unjust enrichment; and count V violations of G. L. c. 93A. Count VI does not articulate a stand-alone cause of action. As the majority explains, it articulates a corporate veil-piercing theory of liability against the individual defendants with respect to counts II through V. Consequently, we are concerned only with the statutes of limitations with respect to those latter counts, which range from three to six years. This case was brought more than six years after the failure of Crowsnest to pay AA & D's bill. The question therefore is when the causes of action accrued, starting the statute of limitations clock.

AA & D alleges that it could not have known of the relevant facts underlying these causes of action until the Wells Fargo loan documents and the Middlesex Savings Bank records were provided to it in discovery in a related action in March and April of 2014. Although I agree with the method of analysis employed by the court majority, I think it goes astray in concluding that AA & D's contention is wrong.

Under the discovery rule, "a cause of action accrues when the plaintiff discovers or with reasonable diligence should have discovered that (1) he has suffered harm; (2) his harm was caused by the conduct of another; and (3) the defendant is the person who caused that harm." Harrington v. Costello, 467 Mass. at 727, 7 N.E.3d 449. With respect to the defendants listed on the loan guarantee, I disagree with the court majority's conclusion that with reasonable diligence the plaintiff could have adduced the existence of its causes of action against them more than six, or even three, years prior to initiation of the suit.

The court majority concludes (a) that AA & D should have been aware of a mortgage to Olga Franchi for $4.75 million that was recorded in March of 2009, (b) that this mortgage should have put AA & D on "inquiry notice" that something fraudulent was happening with respect to the loan proceeds, and (c) that based on that notice AA & D should have discovered the documents that reveal the basis for its claims, documents indicating that there were three unknown guarantors of the Wells Fargo loan and that funds from the loan were siphoned to entities they controlled. See ante at ----, 107 N.E.3d at ----. Each of these conclusions warrants examination.

To begin with, the majority holds that AA & D should have been aware of the Olga Franchi mortgage simply because it was recorded. To be sure, AA & D had discovered the mortgage by 2013, and it may be that there is some reason peculiar to the plaintiff in this case why it "had no difficulty" in finding it, such that, as the majority holds, AA & D should have discovered it earlier. Ante at ---- n.14, 107 N.E.3d at 1235-36 n.14. But the majority relies on the simple fact that the mortgage was recorded in support of its conclusion that AA & D should have found it.

The only way to ensure one is aware of all recorded documents with respect to a piece of property is of course to undertake a comprehensive title search. I see no reason for an unpaid worker, supplier, contractor, or subcontractor who files and records a mechanic's lien with the registry of deeds, as AA & D did, to undertake such a search. Unlike a purchaser or mortgagee, who must in order to protect itself examine the title to a piece of property, one recording a mechanic's lien has no reason to engage in a comprehensive title search nor to undertake the expense involved in doing so. I would not hold as the majority does that one who files a mechanic's lien is as a matter of law put "on inquiry" by recorded documents that might have been found in a title search; I believe that doing so will impose unnecessary costs, and create unnecessary complications, for the "contractors, subcontractors, laborers, and suppliers" who routinely utilize such liens "to provide security ... for the value of their services and goods provided for improving the owner's real estate." Hammill-McCormick Assocs., Inc. v. New England Tel. & Tel. Co., 399 Mass. 541, 542-543, 505 N.E.2d 883 (1987). Next, and perhaps more fundamental to this case, even had AA & D been aware of the mortgage, standing alone it presents no reason to suspect a diversion of loan funds to anyone. It is not a disbursement of funds, but an additional debt obligation. Borrowing additional funds cannot put one on notice as a matter of law that there is a problem with the way in which the proceeds of a previous mortgage are being utilized. And while the discharge of the mortgage so quickly might in some circumstances have raised suspicions, there is no reason to believe that AA & D knew, three to six years before the suit was filed, that the mortgage had been discharged, nor is there any basis for a conclusion that someone in AA & D's position, who had done work, not been paid, and filed and recorded a mechanic's lien, should have known of the discharge. Further, "inquiry notice" merely imposes an obligation to investigate; it does not mean that a party can be charged with constructive knowledge of a fact that reasonable investigation should not or could not have revealed. So, even if AA & D should have known of the Olga Franchi mortgage because it was recorded, and even if, standing alone, that mortgage did suggest something nefarious, putting AA & D on some kind of inquiry notice, the court majority does not explain why the mortgage should have sent it looking for the critical loan guarantee from Wells Fargo. Nor does the majority's explanation of how, exactly, AA & D was supposed to obtain the loan guarantee and South Street's bank records stand up to scrutiny. First, the majority says "AA & D could have conducted discovery before moving for a default judgment" in the 2009 case, or gotten postjudgment discovery under Mass.R.Civ.P. 69, 365 Mass. 836 (1974). Ante at ---- n.13, 107 N.E.3d at 1235 n.13. But the defendants in that case, South Street and Crowsnest, did not even file an answer in the 2009 case --perhaps precisely to avoid discovery -- resulting in judgments against them of over $400,000, which they have not paid in the ensuing years, even as interest accrues. A default ends the case. The idea that in those circumstances the defendants would have responded to discovery requests, or -- more to the point --that a plaintiff facing such defendants can be held not to have undertaken a diligent investigation for not making some such requests, either before moving for a default judgment, or after judgment under rule 69, would impose a costly and largely purposeless burden on both the litigant who has done nothing wrong and the courts, and would give a windfall to those who default and seek to avoid judgments rightly entered against them.

The majority also says that "AA & D also could have obtained most of the documents from Wells Fargo, who was named as a party in interest in the 2013 case." Ante at ---- n.13, 107 N.E.3d at 1325 n.13 Of course Wells Fargo would have had only the loan documents, not South Street's bank records, but even passing that, I find it exceedingly unlikely a mortgage lender would provide such records to a third party without a court order even assuming it would be lawful for it to do so, a question unbriefed before us. And, notwithstanding the majority's conclusion that the Olga Franchi mortgage put the plaintiff on inquiry notice, I find it very difficult to imagine a court on the basis of that mortgage ordering Wells Fargo to turn over all the relevant loan documents, including the critical loan guarantee signed by three previously unknown individuals.

I thus do not see how AA & D could with reasonable diligence have discovered the three guarantors of the loan until the documents were turned over in discovery in the related action in 2014. Consequently, I would hold that the discovery rule prevented the causes of action against those three individuals from accruing until that time, and that, consequently, the claims against those defendants were brought timely in the instant action.

Likewise, until it obtained the bank records from Middlesex Savings Bank, the plaintiff could not have known that, rather than simply running out of money on the project, South Street diverted funds from the loan to entities controlled by Domenic, John, and Lisa Carroll, which is the operative set of facts with respect to these causes of action.

I therefore would reverse the dismissal of counts II through VI of the complaint as to defendants South Street, Domenic Franchi, John Franchi, and Lisa Carroll on these independent bases. And, even if I am mistaken that the discovery-rule issue can be decided as a matter of law in favor of AA & D, it is certainly clear that when, exactly, AA & D should have known of these causes of action presents at least a jury question rendering the dismissal of these counts improper. See Riley v. Presnell, 409 Mass. 239, 240, 565 N.E.2d 780 (1991) ("[W]hen a plaintiff knew or should have known of his cause of action is one of fact which in most instances will be decided by the trier of fact").

The defendants Olga Franchi and David Franchi stand on a somewhat different footing. In the related suit filed in January of 2013, Olga Franchi and David Franchi were named as defendants. AA & D argued in that case that there was a diversion of funds from the project to Olga, evidenced by the repayment of her mortgage and its recorded discharge in 2009. A final judgment (which was affirmed on appeal) was entered as to Olga Franchi in that case and it is thus res judicata as to her. Likewise, because that case is still pending against David Franchi, this case is barred as to him by Mass.R.Civ.P. 12(b)(9), as amended, 450 Mass. 1403 (2008). Dismissal as to those two defendants was thus appropriate.

For these reasons I respectfully dissent with respect to so much of the judgment as dismissed the claims against South Street, Domenic Franchi, John Franchi, and Lisa Carroll. I would affirm so much of the judgment as dismissed the claims against David Franchi and Olga Franchi.

      Because some of the individual defendants have the same surname, we use their first names for ease of reference.

      Attached to the defendants' motions to dismiss were various pleadings filed in prior cases brought by AA & D. Attached to AA & D's opposition to the motions to dismiss were various documents that AA & D claims were obtained during the course of conducting discovery in a case filed against David, Olga, and Crowsnest in 2013. The judge apparently considered these pleadings and documents; however, neither side requested that the defendants' motions be converted into ones for summary judgment and the judge did not do so sua sponte.

      The contract identifies South Street as the "owner."

      The original principal amount of the loan was $9,550,000. The complaint alleges that these funds were required to be used exclusively for the construction project and that the contract between Crowsnest and AA & D provided that payments to AA & D would be made no later than ten days after receipt by Crowsnest of funds from South Street and/or Wells Fargo.

      The mortgage was granted on February 25, 2009.

      Wells Fargo filed an answer in which it asserted among other defenses that "Wells Fargo holds a construction mortgage on the real estate that is the subject matter of the Complaint, which mortgage takes priority over any lien that the Plaintiff may obtain pursuant to the Complaint." Wells Fargo attached a copy of the construction mortgage to its answer.

      Wells Fargo filed a limited opposition to AA & D's motion for a default judgment against South Street in response to AA & D's request that the property be sold and the sale proceeds applied to the sum owed to AA & D. Wells Fargo argued that AA & D's lien was extinguished because it had foreclosed on the property, which was sold at auction on March 31, 2010, for $1,500,000, leaving a multi-million dollar deficiency on Wells Fargo's secured debt. No action appears to have been taken on Wells Fargo's opposition.

      We agree with the dissent that dismissal of the complaint is warranted as to David because the 2013 case against him is still pending, and as to Olga under the doctrine of res judicata. See post at ----, 107 N.E.3d at ----. In light of our conclusion regarding the statutes of limitations, however, we do not discuss those subjects further.

      AA & D conceded before the motion judge that (1) the tort claims alleged in counts II and III have a three-year statute of limitations, G. L. c. 260, § 2A ; (2) the claim alleged in count IV is contractual in nature and thus has a six-year statute of limitations, G. L. c. 260, § 2 ; (3) the claim alleged in count V has a four-year statute of limitations, G. L. c. 260, § 5A ; and (4) count VI does not allege a separate cause of action but is an alternative theory of liability, see Lipsitt v. Plaud, 466 Mass. 240, 253 n.14, 994 N.E.2d 777 (2013).

      The documents are as follows: (1) personal financial statement of David, dated April 29, 2009; (2) building loan agreement between South Street and Wells Fargo dated February 7, 2008; (3) repayment and completion guaranty of David, John, and Lisa, dated February 7, 2008; (4) notice of default on behalf of Wells Fargo dated August 20, 2008; and (5) demand letter of behalf of Wells Fargo dated July 22, 2009.

      That statute provides, in relevant part, that if a judgment remains unsatisfied, the judgment creditor "may at any time after the judgment, subject to [G. L. c. 260, § 20, providing that a judgment is presumed satisfied twenty years after it is rendered], bring a civil action thereon." AA & D has not pursued an action under the statute despite obtaining writs of execution on the judgment in 2012 and 2016.

      The dissent suggests that the documents in question were not discoverable because Crowsnest and South Street defaulted in 2010. See post at ----, 107 N.E.3d at ----. However, AA & D could have conducted discovery before moving for a default judgment, and it could have proceeded under Mass.R.Civ.P. 69, 365 Mass. 836 (1974), to locate assets from which the South Street judgment could be satisfied after the default judgments entered. "Rule 69, in aid of a judgment, makes available postjudgment discovery and equips the court with 'all the traditional flexibility of a court of equity,' including enforcement of orders of the court against persons who may not originally have been parties." Evans v. Multicon Constr. Corp., 30 Mass. App. Ct. 728, 732, 574 N.E.2d 395 (1991), quoting from Geehan v. Trawler Arlington, Inc., 371 Mass. 815, 817-818, 359 N.E.2d 1276 (1977). AA & D also could have obtained most of the documents from Wells Fargo, who was named as a party in interest in the 2013 case. Similarly, AA & D knew David Franchi was a principal and could have sought discovery from him.

      The dissent posits that the mortgage to Olga could only have been discovered by conducting a title search, which would have imposed an unnecessary burden on AA & D. See post at ----, 107 N.E.3d at ----. However, AA & D apparently had no difficulty conducting a search, perhaps a limited one, in 2013.

      We note that the complaint does not set forth any factual allegations to support this contention. The complaint does not allege which material facts were concealed, by whom, or how; indeed, there are no factual allegations of specific actions taken by any of the defendants which would support an inference that they intentionally concealed their identities from AA & D.

      The defendants also argue that (1) the South Street judgment is void because a damages remedy was not within the court's jurisdiction under the mechanic's lien statute and Mass.R.Civ.P. 54(c), as amended, 463 Mass. 1401 (2012); and (2) fraud was not pleaded with particularity as required by Mass.R.Civ.P. 9(b), 365 Mass. 751 (1974). These claims have not been overlooked; in light of our conclusion, they need not be addressed.

      The parties agree that the following statutes of limitations apply: three years for counts II and III, six years for count IV, and four years for count V. Although in its motion for reconsideration of the trial court's dismissal of its lawsuit AA & D attempted to assert that count VI was in fact an action to enforce a judgment, which has a twenty-year limitations period, see G. L. c. 235, § 19 ; G. L. c. 260, § 20, I agree with the court majority that this untimely argument is waived in this case. See ante at ----, 107 N.E.3d at ----.

      It is irrelevant that the mortgage may have been superior to the mechanic's lien. There is nothing one filing a mechanic's lien on real property can do about that, as it occurs by operation of law. See Evans Prod. Co. v. D.J. Dev. Corp., 6 Mass. App. Ct. 306, 308 n.2, 375 N.E.2d 345 (1978) (priority of mechanic's liens vis-à-vis mortgages is determined by statute). Nor would uncovering the existence of a prior encumbrance be of any benefit to one filing a mechanic's lien, as recording puts one on constructive notice -- not inquiry notice -- of the existence of the prior encumbrance. See Bank of Am., N.A. v. Casey, 474 Mass. 556, 567, 52 N.E.3d 1030 (2016) ("[C]onstructive notice arises by operation of law under G. L. c. 183, § 4, in any case where the mortgage is properly recorded").

      The only information AA & D obtained from the Trial Court Information Center -- that "dozens of suits were filed in Middlesex Superior Court by creditors and contractors against [David Franchi] and the corporate entities in which he was a principal," including four suits by others for nonpayment related to the project on which AA & D worked -- is irrelevant to the question before us, as it neither suggested that there were three unknown guarantors of the Wells Fargo loan, nor indicated that the proceeds of that loan had been siphoned off to other entities controlled by the three loan guarantors. Nonetheless, I think the majority is in error in holding that any reasonable party in AA & D's position, prior to 2013, would have combed through the Trial Court Information Center records for lawsuits involving David Franchi and the corporate entities in which he was a principal. In 2010, AA & D obtained a default judgment against Crowsnest and South Street for the entire value of the unpaid work. Whether, if the information were relevant, no reasonable party in that position would have omitted such a search, and, if so, how long a reasonable party would have waited before conducting it, cannot be resolved at the motion to dismiss stage.

      The court majority observes that, in a responsive pleading filed in a related action in 2013, AA & D claimed knowledge that the mortgage to Olga was fraudulent. But this tells us nothing about when (or how) AA & D should have learned of the discharge. This suit was filed on October 30, 2015, and so the earliest accrual date for the shortest limitations period in this case is October 30, 2012. The prior suit was filed on January 11, 2013, and AA & D's pleading that refers to a fraudulent mortgage was filed on March 4, 2013. Given this timeline, it is entirely possible -- and an inference we must draw at the motion to dismiss stage -- that AA & D discovered the purportedly fraudulent mortgage after October 30, 2012.

      Or diverting it to Olga, see infra.


author: HANLON, J.

text:
    COMMONWEALTH v. Jeremy GRAFTON.
    No. 17-P-753.
    Appeals Court of Massachusetts, Middlesex..
    Argued March 5, 2018 Decided August 14, 2018
    Sarah M. Unger, Boston, for the defendant.
    Elizabeth J. May, Assistant District Attorney, for the Commonwealth.
    Present: Vuono, Hanlon, Wendlandt, JJ.
   HANLON, J.

After a jury trial, the defendant was convicted of disconnecting and removing fire protection devices -- smoke detectors -- in violation of G. L. c. 148, § 27A. The statute requires that such devices may not be removed or disconnected without a permit. The defendant appeals, arguing that, because the procurement of a permit is an element of the crime, the judge erred in denying his motion for a required finding of not guilty and in improperly instructing the jury. The issue is whether failure to obtain a permit to remove the fire protection devices is an element of the offense -- which the Commonwealth always must prove beyond a reasonable doubt -- or whether the defendant must raise the permit issue as an affirmative defense and produce some evidence to support it, in order to shift to the Commonwealth the burden of disproving it. Here, we agree with the judge that the defendant was entitled to raise the issue as an affirmative defense, but that, if he did not, the Commonwealth was not required to disprove it. For that reason, we affirm the judgment.

Background. The jury heard the following evidence. On the afternoon of July 29, 2015, Sergio Munos was the property manager of the three-story, two-family house at 12 Munroe Avenue in Waltham; a family lived on one side of the house and the other side functioned, essentially, as a rooming house with seven bedrooms. Munos was responsible for renting those bedrooms as well as for providing maintenance for the entire property, along with several other properties.

Around noon, Munos drove into the parking lot of the house, intending to address an issue a tenant had reported to him -- a leaking toilet. As he did so, he observed the defendant walking from the direction of the back door of the house toward trash barrels a short distance away; the defendant was carrying a large plastic grocery bag. Munos could see that fire extinguishers and smoke detectors were in the bag that the defendant was carrying. When Munos approached the defendant to speak with him, the defendant looked "surprised," walked quickly to the trash barrels, and threw the bag he was carrying into one of the barrels. When Munos tried to speak to him, the defendant walked away, "scream[ing]" at Munos but refusing to answer any questions.

Munos recognized the contents of the bag -- now in the trash barrel -- as two fire extinguishers and two smoke detectors that he previously had installed in the house. The fire extinguishers had been installed in the kitchen and in the common area; the smoke detectors had been installed on the second-floor hallway ceiling and on the third-floor hallway ceiling. Munos took photographs of the items in the trash barrel and then retrieved the items from the trash, reinstalled them back in the house, and contacted the police. The owner of the property testified that, at the time of the incident, eviction proceedings against the defendant were already pending.

After the Commonwealth rested, defense counsel moved for a required finding of not guilty, arguing that the Commonwealth had offered no evidence that the defendant did not possess a permit to remove the smoke detectors. The judge denied the motion, ruling that the question of a permit was "a defense."

The defendant testified in his own defense and denied removing the fire extinguishers or the smoke detectors; he claimed that he was out of the house the entire day. He also testified that he was present when a health inspector came to the house the following day, July 30, 2015. According to the defendant, the health inspector had come in response to the defendant's request to have the building inspected because of "mice, cockroaches, [and] soiled carpet." The defendant testified that he became aware of the missing smoke detectors only as a result of this health inspection. At the close of all of the evidence, during the charge conference, defense counsel renewed her argument that failure to obtain the necessary permit was an element of the Commonwealth's proof. The judge declined to give that instruction to the jury.

In reviewing the denial of a motion for a required finding of not guilty, we assess the evidence in the light most favorable to the Commonwealth, along with reasonable inferences therefrom, to determine whether we are satisfied that the Commonwealth presented "enough evidence that could have satisfied a rational trier of fact of each ... element beyond a reasonable doubt." Commonwealth v. Torres, 468 Mass. 286, 292, 10 N.E.3d 1065 (2014), quoting from Commonwealth v. Latimore, 378 Mass. 671, 677-678, 393 N.E.2d 370 (1979). The jury's inferences must only be reasonable and possible. Torres, supra.

The defendant argues that it was error to deny his motion for a required finding of not guilty and his request for a jury instruction on the issue of the necessary permit. He contends that, in cases where the behavior at issue is the norm, e.g., operating a motor vehicle, the Commonwealth bears the burden of proving that the behavior was unlicensed or uninsured. By contrast, for conduct that is generally prohibited, e.g., possession of a firearm, "the burden is on the defendant to come forward with evidence of the defense." Commonwealth v. Jones, 372 Mass. 403, 406, 361 N.E.2d 1308 (1977). In the defendant's view, handling fire protection devices is more like the former than the latter.

The issue for us, then, is whether, in the circumstances presented -- removing fire protection devices -- the absence of a permit is an essential element of the offense or an affirmative defense. We are satisfied that obtaining the necessary permit here is an affirmative defense.

"An affirmative defense is defined as a matter which, assuming the charge against the accused to be true, constitutes a defense to it; an 'affirmative defense' does not directly challenge any element of the offense." Commonwealth v. Farley, 64 Mass. App. Ct. 854, 861, 835 N.E.2d 1159 (2005), quoting from 21 Am. Jur. 2d Criminal Law § 217 (1998). Such a defense "involves a matter of justification particularly within the knowledge of the defendant on which he can fairly be required to adduce supporting evidence." Farley, supra, quoting from Model Penal Code § 1.12(3)(c) (1985). Pursuant to G. L. c. 278, § 7, "[a] defendant in a criminal prosecution, relying for his justification upon a license, ... or authority, shall prove the same; and, until so proved, the presumption shall be that he is not so authorized."

The cases citing G. L. c. 278, § 7, give us some guidance. See, for example, Jones, supra ("We sum up the established interpretation of G. L. c. 278, § 7, as it applies to prosecutions under G. L. c. 269, § 10 [a ]. The holding of a valid license brings the defendant within an exception to the general prohibition against carrying a firearm, and is an affirmative defense. Absence of a license is not 'an element of the crime,' as that phrase is commonly used. In the absence of evidence with respect to a license, no issue is presented with respect to licensing. In other words, the burden is on the defendant to come forward with evidence of the defense. If such evidence is presented, however, the burden is on the prosecution to persuade the trier of facts beyond a reasonable doubt that the defense does not exist") (citation omitted).

The courts consistently have followed that analysis in the cases involving possession of a firearm. In Commonwealth v. Humphries, 465 Mass. 762, 767, 991 N.E.2d 652 (2013), the court reiterated: "[A] defendant charged with a possessory firearms offense can raise the defendant's own license as a defense. See Commonwealth v. Gouse, 461 Mass. 787, 802-803, 965 N.E.2d 774 (2012) ..., and cases cited. Such a defendant must, prior to trial, provide notice of intent to raise the defense of license, see Mass. R. Crim. P. 14(b)(3), and must produce 'some evidence' of license at trial before the burden shifts to the Commonwealth to prove the absence of the defendant's license beyond a reasonable doubt." See Commonwealth v. Indrisano, 87 Mass. App. Ct. 709, 712, 35 N.E.3d 722 (2015).

The courts have employed the same analysis in other contexts. In Commonwealth v. Jefferson, 377 Mass. 716, 718, 387 N.E.2d 579 (1979), the court said that "[t]he same principles apply to a prosecution under G. L. c. 94C, § 27 [, which made unlawful possession of hypodermic needles or syringes, with certain exceptions]. The 'authority' which the defendant must show extends beyond a license or other governmentally issued permission. It includes, for example, the 'authority' to possess a hypodermic needle which may arise from the defendant's status as a student in a school described in the statute or which may arise because the defendant is a patient who has a written prescription from a physician. Placing on the Commonwealth the burden of disproving each of the numerous exemptions under G. L. c. 94C, § 27, would make successful prosecutions under the statute virtually impossible." In Commonwealth v. O'Connell, 438 Mass. 658, 664-665, 783 N.E.2d 417 (2003) (citation and footnote omitted), the court held that "authority [to sign checks on behalf of an authorized signator] may be raised as a defense, and, if so raised, the Commonwealth then bears the burden of proving beyond a reasonable doubt the absence of authority. See G. L. c. 278, § 7. To raise the defense of acting under authority, the defendant must so notify the prosecutor and file a copy of the claim with the clerk of the court where the case is pending. Mass. R. Crim. P. 14(b)(3) .... Failure to do so renders the claim of authority unavailable as a defense." See Commonwealth v. Dzewiacin, 252 Mass. 126, 130-131, 147 N.E. 582 (1925) (Where a defendant is charged with transporting intoxicating liquors, " G. L. c. 278, § 7, provides that a defendant in a criminal prosecution who relies for his justification upon a license, appointment or authority, shall prove the same, and until so proved, the presumption is that he is not so authorized").

By contrast, the Supreme Judicial Court explicitly has distinguished the cases involving records from the Registry of Motor Vehicles from application of G. L. c. 278, § 7. See Commonwealth v. Munoz, 384 Mass. 503, 507, 426 N.E.2d 1161 (1981) ("The Commonwealth, in urging us to apply G. L. c. 278, § 7, to this case and to require the defendant to bear the burden of producing evidence showing insurance, points to the relative ease with which the defendant could produce a document proving insurance if the car were in fact insured as compared with the difficulty the Commonwealth has in proving noninsurance. The Commonwealth acknowledges, however, that under G. L. c. 90, § 34I, the Registrar of Motor Vehicles is obliged to maintain information as to insurance on every car registered in the Commonwealth and is required to make this information available to any person on request. Even assuming that it may be difficult for the Commonwealth to prove noninsurance, this obstacle does not warrant the application of c. 278, § 7, in view of the fact that noninsurance is an element, in fact, the central element of a prosecution under G. L. c. 90, § 34J. Accordingly, we conclude that G. L. c. 278, § 7, is inapplicable to prosecutions under G. L. c. 90, § 34J").

We are persuaded that removing fire protection devices, with all of the safety concerns that activity presents, is more like those cases (possession of a firearm or ammunition, possession of a hypodermic needle, signing another's name to a check, or transportation of alcohol during Prohibition) that prohibit the behavior absent an affirmative showing from the defendant that his or her actions were authorized. The facts of this case, concerning a three-story rooming house with seven unrelated tenants occupying one side of a two-family house and a family occupying the other side, highlight the importance of the necessary fire protection devices and the safety interests protected by the statute.

Both Humphries and O'Connell highlight another flaw in the defendant's argument. In order to raise a defense of authority, rule 14(b)(3) of the Massachusetts Rules of Criminal Procedure, as appearing in 442 Mass. 1525 (2004), requires a defendant to provide pretrial notice that he or she intends to rely on a defense of authority or license. Here, the defendant offered no such notice and, instead, testified that he had nothing to do with the removal of the smoke detectors. As a result, a defense of authority was unavailable to him. Cf. Commonwealth v. Jefferson, 461 Mass. 821, 832, 965 N.E.2d 800 (2012).

Conclusion. In sum, reviewing the evidence in the light most favorable to the Commonwealth, rational jurors were entitled to find that the defendant committed the charged offense. See Torres, 468 Mass. at 292, 10 N.E.3d 1065. We see no error in the denial of the defendant's motion for a required finding of not guilty.

Judgment affirmed.

      The defendant was also charged with larceny of $250 or less based on the allegation that he stole two fire extinguishers; he was acquitted of that charge.

      Pursuant to G. L. c. 148, § 27A, as amended by St. 2005, c. 123, § 3, it is unlawful to "shut off, disconnect, obstruct, remove or destroy, or cause or permit to be shut off, disconnected, obstructed, removed or destroyed, any part of any sprinkler system, water main, hydrant or other device used for fire protection or carbon monoxide detection and alarm in any building owned, leased or occupied by such person or under his control or supervision, without first procuring a written permit so to do from the head of the fire department of the city or town wherein such building is situated, which permit such head is hereby authorized to issue subject to such terms and conditions as, in his judgment, protection against fire and the preservation of the public safety may require."
      The "[h]ead of the fire department" is defined as "the chief executive officer of the fire department in a city, town, fire district, the 104th fighter wing fire department or the Massachusetts military reservation fire department having such an officer, otherwise the fire commissioner, board of fire commissioners or fire engineers, or commissioner of public safety; and, in towns not having a fire department, the chief engineer, if any, otherwise the chairman of the board of selectmen." G. L. c. 148, § 1, as amended through St. 2014, c. 313, § 9.

      Munos testified that there were four bedrooms on the third floor, two on the second floor, and one bedroom on the first floor along with a kitchen and a living room.

      The police did not obtain the photographs; Munos's cellular telephone (on which he took the pictures) broke shortly after this incident and he was thereafter unable to recover the photographs from it.

      Much of this side bar conference was "indiscernible" to the transcriber, but the main points are clear enough.

      While the parties used the terms remove and disconnect, and both terms appear in the statute, the judge instructed the jury that "[i]n order to prove [the defendant] guilty of this offense, the [Commonwealth] must prove ... that the defendant disconnected or caused to be disconnected or rendered inoperable a fire protection device[,] ... the fire protection device was located in a residence or a building where individuals reside[,] ...[a]nd ...that the defendant did so with the intent to disconnect such fire protection device."

      Because the Commonwealth's burden of proof did not include absence of a permit as a necessary element of the offense, we also conclude that the judge properly instructed the jury on the law.


author: DITKOFF, J.

text:
    COMMONWEALTH v. Steven BOULEY.
    No. 17-P-984.
    Appeals Court of Massachusetts, Essex..
    Argued February 7, 2018. Decided August 14, 2018.
    Elena M. Rosnov, Saugus, for the defendant.
    Marcia H. Slingerland, Assistant District Attorney, for the Commonwealth.
    Present: Rubin, Maldonado, & Ditkoff, JJ.
   DITKOFF, J.

The defendant, Steven Bouley, appeals from his conviction by a District Court jury of operating a vehicle under the influence of drugs (OUI), G. L. c. 90, § 24(1)(a )(1), second offense, following a single-car accident. A responding emergency medical technician (EMT) testified that, in his opinion, the defendant was actively overdosing at the scene of the accident, and this testimony was corroborated by the observations of a responding police officer and the defendant's admission to having taken fentanyl. We conclude that the jury could convict the defendant without additional proof as to the amount or concentration of narcotics in the defendant's system or expert testimony regarding how that amount or concentration would impair a defendant's ability to operate a vehicle safely. Concluding as well that the trial judge's implicit qualification of the EMT as an expert was proper and that the trial record does not set forth the factual basis for a claim of ineffective assistance of counsel, we affirm.

1. Background. At approximately 9:00 P.M. on May 24, 2015, a Lawrence police officer and an EMT affiliated with Lawrence General Hospital responded to the scene of a single-car accident at an intersection in Lawrence. The officer arrived less than five minutes after the accident was reported, observing that the vehicle appeared to have struck a fire call box on the side of the road and rolled back into the intersection. The defendant was hanging partially out of the vehicle with his feet inside the open driver's side door and his body lying face-up on the street.

The defendant was unconscious, with pinpoint pupils, and was barely breathing as the EMT and other paramedics arrived. A fireman gave the defendant a sternal rub, but the defendant could not be resuscitated. Based on his observation of the defendant and his experience in responding to hundreds of drug overdoses in over eighteen years as a certified paramedic, the EMT believed the defendant was actively overdosing. Following his training, the EMT administered Narcan, an emergency medication used to treat opioid overdoses. The EMT testified that Narcan serves no medical purpose other than to bind to opioids in a person's system and allow the body to restore natural respiration, and that it would not revive a person who was not breathing as a result of any other condition. The defendant responded to the Narcan immediately; his pupils dilated, he began breathing normally, and he awoke in an agitated state. The EMT stated all of the defendant's signs and symptoms -- including his response to the Narcan -- were consistent with an overdose caused by ingesting opioid narcotics.

The defendant, now awake and alert, spoke with the EMT and the police officer, responding appropriately and coherently to questions. He admitted to the EMT that he had taken fentanyl, a synthetic opioid painkiller, and he told the officer he owned the vehicle and was driving at the time of the accident. The defendant, however, said he believed the accident was caused by malfunctioning because of recent repairs to the car's drive shaft.

The defendant also said he hit his head, and there was a slight red mark on his forehead, but there was no sign of a concussion, brain trauma, or any other injury to the defendant. The accident did not appear particularly severe or life-threatening, and there was no evidence of any internal impact or trauma that would have impaired the defendant's breathing.

After the defendant was taken to the hospital, the officer conducted an inventory search of the vehicle. He found a needle and syringe on the driver's seat floor -- items commonly used to ingest narcotics.

The defendant was tried for OUI by a District Court jury. During the trial, the judge denied the defendant's motions for a required finding of not guilty both at the close of the Commonwealth's case and at the close of all the evidence. The jury convicted the defendant.

2. Sufficiency of the evidence. "When reviewing the denial of a motion for a required finding of not guilty, 'we consider the evidence introduced at trial in the light most favorable to the Commonwealth, and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " Commonwealth v. Faherty, 93 Mass. App. Ct. 129, 133, 99 N.E.3d 821 (2018), quoting from Commonwealth v. Oberle, 476 Mass. 539, 547, 69 N.E.3d 993 (2017). "The inferences that support a conviction ' need only be reasonable and possible; [they] need not be necessary or inescapable.' " Commonwealth v. Waller, 90 Mass. App. Ct. 295, 303, 58 N.E.3d 1070 (2016), quoting from Commonwealth v. Woods, 466 Mass. 707, 713, 1 N.E.3d 762 (2014). This determination, moreover, "is to be measured upon that which was admitted in evidence without regard to the propriety of the admission." Commonwealth v. Sepheus, 468 Mass. 160, 164, 9 N.E.3d 800 (2014), quoting from Commonwealth v. Farnsworth, 76 Mass. App. Ct. 87, 98, 920 N.E.2d 45 (2010).

To prove the crime of operating a motor vehicle under the influence of a narcotic drug under G. L. c. 90, § 24(1)(a )(1), the Commonwealth was required to establish that the defendant (1) physically operated a vehicle; (2) on a public way; (3) while under the influence of a narcotic drug. See Commonwealth v. Ferola, 72 Mass. App. Ct. 170, 172-173, 889 N.E.2d 436 (2008) ; Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 392, 75 N.E.3d 638 (2017). The defendant here contests only the final element, which is established by showing that the use of a narcotic drug resulted in the "impairment, to any degree, of an individual's ability to safely perform the activity in question." Commonwealth v. Veronneau, 90 Mass. App. Ct. 477, 479, 60 N.E.3d 1175 (2016).

Temporarily setting aside whether the EMT's testimony was properly admitted (an issue we address, infra ), see Sepheus, 468 Mass. at 164, 9 N.E.3d 800, the evidence was sufficient to prove the defendant's guilt beyond a reasonable doubt. The jury heard testimony from an EMT who was a certified paramedic, experienced in hundreds of drug overdoses, that, shortly after exhibiting the classic symptoms of an opioid overdose and being resuscitated by medication exclusively used for treating opioid overdoses, the defendant admitted to having taken fentanyl. See Gallagher, 91 Mass. App. Ct. at 390-392, 75 N.E.3d 638 (affirming OUI conviction where defendant admitted to consuming alcohol and "exhibited classic symptoms of alcohol intoxication"). It is undisputed, moreover, that the defendant was found in that condition outside of the driver's seat of a car he admitted to driving only minutes after it crashed into a call box on the side of the road. See Commonwealth v. Reynolds, 67 Mass. App. Ct. 215, 219, 852 N.E.2d 1124 (2006) (jury may infer impairment by intoxicating substance from "the manner in which the accident occurred, and the defendant's conduct ... immediately after the collision"). This evidence was corroborated by testimony from an experienced police officer, who also collected a needle and syringe from the driver's seat floor of the defendant's vehicle.

Considering that the defendant was unconscious and barely breathing at the scene of the accident, the jury could reasonably infer that whatever amount of fentanyl he took was sufficient to impair his capacity to operate the car safely. See Commonwealth v. AdonSoto, 475 Mass. 497, 510, 58 N.E.3d 305 (2016) ("slurred speech" and "unsteadiness when standing"); Gallagher, 91 Mass. App. Ct. at 392-393, 75 N.E.3d 638 ("classic symptoms" of intoxication). See also Reynolds, 67 Mass. App. Ct. at 219-220, 852 N.E.2d 1124 (evidence of accident, defendant's appearance thereafter, and admission to taking narcotics supported inference that defendant's ability to drive safely was impaired at the time).

Contrary to the defendant's contention, this case is not like Commonwealth v. Shellenberger, 64 Mass. App. Ct. 70, 831 N.E.2d 375 (2005). There, the defendant operated a van at excessive speed, passed vehicles in a no-passing zone, and ultimately caused a fatal crash. Id. at 71-72, 831 N.E.2d 375. The Commonwealth relied upon hospital records showing that the defendant tested positive for amphetamines to argue that the defendant's use of amphetamines made her operation negligent. Id. at 73-74, 831 N.E.2d 375. We reversed, as "the amphetamine theory of criminal liability ... lacked evidentiary foundation -- both by way of any evidence concerning the concentration of amphetamines in the defendant's system as well as any expert evidence concerning the effect of such substances on her ability to drive." Id. at 75-76, 831 N.E.2d 375. In short, the mere fact that the defendant had amphetamines in her system was not a proper basis for an argument that the amphetamines impaired her ability to drive.

Here, by contrast, there is much more than the mere presence of an opioid in the defendant's system. The defendant had enough fentanyl in his system to render him unconscious and barely capable of breathing, much less operating a motor vehicle. He admitted to using fentanyl, responded to Narcan in a manner consistent with an overdose, and had struck a fire call box with his motor vehicle. Thus, the evidence before the jury was sufficient to allow the jury to conclude that the defendant had consumed an excessive amount of fentanyl and that the fentanyl affected his ability to operate a motor vehicle. Shellenberger requires that these factors be demonstrated to show impairment caused by drug use; it is not necessary that they be demonstrated by expert medical testimony.

3. Admissibility of the evidence. We now turn to whether the trial judge properly allowed the EMT to testify that, in his opinion, the defendant was overdosing on narcotics at the scene of the accident. "[D]eterminations as to the admissibility of evidence lie 'within the sound discretion of the trial judge,' " Commonwealth v. Bins, 465 Mass. 348, 364, 989 N.E.2d 404 (2013), quoting from Commonwealth v. Jones, 464 Mass. 16, 19-20, 979 N.E.2d 1088 (2012), an abuse of which "occurs only where the judge makes '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. Keown, 478 Mass. 232, 242, 84 N.E.3d 820 (2017), quoting from L.L. v. Commonwealth, 470 Mass. 169, 185 n.27, 20 N.E.3d 930 (2014). We discern no such abuse of discretion here.

"The judge is not required to hold a voir dire before qualifying an expert, and the judge's determination may be inferred from the record." Commonwealth v. Calderon, 65 Mass. App. Ct. 590, 593, 842 N.E.2d 986 (2006) (citation omitted). A judge may implicitly qualify an experienced, certified EMT as an expert, and "[i]t was not necessary for the judge expressly to qualify [the EMT] as an expert." Commonwealth v. Ruiz, 442 Mass. 826, 834, 817 N.E.2d 771 (2004). Here, the testifying EMT was a certified paramedic with over eighteen years of experience. He had responded to hundreds of calls in which an individual was suspected of having overdosed. He had received training in treating overdoses with Narcan. Accordingly, the judge acted within his discretion in implicitly qualifying the EMT as an expert and allowing him to offer an opinion about the defendant's overdosing. See ibid. ; Commonwealth v. Phillips, 452 Mass. 617, 636 n.13, 897 N.E.2d 31 (2008).

Furthermore, on balance, the EMT's opinion was not unfairly prejudicial against the defendant, as this case does not present the "danger posed by a witness,... offering an opinion regarding a defendant's guilt '[where] the jury might forego independent analysis of the facts and bow too readily to the opinion of an expert or otherwise influential witness.' " Commonwealth v. Canty, 466 Mass. 535, 542-543, 998 N.E.2d 322 (2013), quoting from Commonwealth v. LaCorte, 373 Mass. 700, 705, 369 N.E.2d 1006 (1977). Rather, independent of the challenged opinion, there was evidence that the defendant (1) admitted to taking fentanyl ; (2) was found at the scene of an accident; (3) unresponsive and barely breathing; (4) until revived by a widely-known opioid antidote; (5) outside a vehicle he admitted to driving and which contained a needle and syringe near the driver's seat. The jury thus had ample evidence with which to evaluate the weight and persuasiveness of the EMT's opinion. Compare Gallagher, 91 Mass. App. Ct. at 389-390, 75 N.E.3d 638 ("in view of the whole case, the prejudice flowing from [opinion as to defendant's impairment] would be relatively modest given what must have been obvious to the jury"), with Shellenberger, 64 Mass. App. Ct. at 76-77, 831 N.E.2d 375 ("the evidence of the mere presence of [narcotics] cannot justify the verdict and the supplemental theory of proof advanced by the Commonwealth"). In sum, we see no abuse of discretion in the trial judge's admission of the EMT's testimony that, in his opinion, the defendant experienced an opioid-induced overdose.

4. Ineffective assistance of counsel. Pretermitting the first prong of Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974), there is no evidence in the trial record to support the claim that counsel's conduct "likely deprived the defendant of an otherwise available, substantial ground of defence[.]" Commonwealth v. Navarro, 474 Mass. 247, 254, 49 N.E.3d 665 (2016), quoting from Saferian, supra. On direct appeal, assertions of ineffective assistance succeed "only where 'the factual basis of the ... claim appears indisputably on the trial record.' " Commonwealth v. Diaz, 448 Mass. 286, 289, 860 N.E.2d 665 (2007), quoting from Commonwealth v. Zinser, 446 Mass. 807, 811, 847 N.E.2d 1095 (2006). Crucially, "[a] claim of ineffective assistance of counsel for failure to call an expert witness is generally doomed where '[t]he defendant's claim is not supported by any affidavits' to disclose the content of the omitted expert testimony." Commonwealth v. Alicea, 464 Mass. 837, 850-851, 985 N.E.2d 1197 (2013), quoting from Commonwealth v. Morales, 461 Mass. 765, 785, 965 N.E.2d 177 (2012). Accord Commonwealth v. Seino, 479 Mass. 463, 474, 96 N.E.3d 149 (2018).

The defendant here provided no affidavit describing how expert testimony would have demonstrated the accident was caused by mechanical issues, nor does the record before us otherwise suggest such testimony could have assisted the defendant's case in any meaningful way given the evidence against him. See Commonwealth v. Belliveau, 76 Mass. App. Ct. 830, 836, 927 N.E.2d 496 (2010), quoting from Saferian, 366 Mass. at 96, 315 N.E.2d 878 ("Regardless, given the overwhelming evidence of his intoxication, it certainly did not 'deprive[ ] the defendant of an otherwise available, substantial ground of defence' "). This claim fails as a result. See Alicea, 464 Mass. at 851, 985 N.E.2d 1197.

Judgment affirmed.

      The defendant pleaded guilty to the second offense portion of the complaint and, in addition, did not contest two civil infractions: a marked lanes violation under G. L. c. 89, § 4A, and a miscellaneous motor vehicle equipment violation, G. L. c. 90, § 7.

      The EMT had additional training as a paramedic.

      The police officer testified that the vehicle tires were bald and that "it shouldn't have probably been on the road," but he did not observe any mechanical issue with the motor vehicle.

      The officer had twenty-four years of experience in law enforcement, including over fifty investigations of persons suspected of being under the influence of narcotics.

      The prosecution in Shellenberger was for motor vehicle homicide by negligent operation. See G. L. c. 90, § 24G(b ). The Commonwealth did not charge the defendant with operating under the influence or with motor vehicle homicide by operation under the influence. Shellenberger, 64 Mass. App. Ct. at 71, 831 N.E.2d 375.

      The defendant properly conceded at oral argument that the police officer did not testify that the defendant was overdosing, and makes no other challenge to the officer's testimony.


text:
    COMMONWEALTH v. Leonides BONES.
    17-P-1015
    Appeals Court of Massachusetts.
    Entered: July 5, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Leonides Bones, appeals from the order denying his second motion for a new trial. The defendant was convicted of possession of a class A controlled substance with intent to distribute, G. L. c. 94C, § 34, after a jury trial, and, following a subsequent jury-waived trial, of being a second or subsequent offender. The defendant filed a notice of appeal from the judgments on May 17, 2013, and his direct appeal entered on July 29, 2014. The appeal was stayed on January 8, 2015, to allow the defendant to file a motion for a new trial in the Superior Court. On October 13, 2015, the defendant filed a motion for a new trial pursuant to Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001), which was denied by the trial judge on January 4, 2016. The defendant filed a notice of appeal from the order denying his motion on January 21, 2016. The appeal from the order denying the defendant's motion for a new trial was thereafter consolidated with his direct appeal on March 3, 2016, and the stay of his direct appeal was vacated. The case was then placed on a briefing schedule on August 11, 2016.

The defendant filed a second motion for a new trial in the Superior Court on June 21, 2017, without seeking a stay in this court. The motion was again denied by the trial judge on July 6, 2017, while his consolidated appeal remained pending before this court. On July 28, 2017, the defendant noticed an appeal from the order denying his second rule 30(b) motion. His appeal, which is now before us, entered in this court on August 4, 2017.

We conclude that the judge did not have jurisdiction to act on the defendant's second motion for a new trial during the pendency of his consolidated appeal from the judgments and the order denying his first motion for a new trial. As a result, the defendant's appeal is not properly before us. "Once a party enters an appeal, ... the court issuing the judgment or order from which an appeal was taken is divested of jurisdiction to act on motions to rehear or vacate." Commonwealth v. Cronk, 396 Mass. 194, 197 (1985). See Commonwealth v. Montgomery, 53 Mass. App. Ct. 350, 352 (2001). Because the defendant's consolidated appeal was pending before this court when the defendant brought his second motion for a new trial, the trial judge lacked jurisdiction to act on the motion and the appeal is not properly before us.

The order denying the defendant's second motion for a new trial is vacated, and that motion is to be treated as not acted upon and awaiting determination in the Superior Court.

So ordered.

Vacated.

      The defendant should have sought leave from a single justice of this court to stay his consolidated appeal pending the disposition of the second motion for a new trial. See Commonwealth v. Montgomery, supra at 353-354.