text:
    Scott J. GAGNON v. Barbara J. HADDAD-SABA.
    17-P-718
    Appeals Court of Massachusetts.
    Entered: April 20, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Her married name was Barbara Jeanne Gagnon. She was given leave to resume her former name in the divorce judgment.

   The husband appeals from a 2016 Probate and Family Court order denying his motion for relief from three judgments: a 2013 divorce judgment and two substantively identical 2015 judgments on complaints for modification and for contempt. Although the husband's allegations of fraud by the wife are troubling, we cannot say that the judge abused his discretion in denying the motion, and we therefore affirm.

Background. On June 7, 2013, a judgment of divorce nisi entered, approving and incorporating the parties' separation agreement. As relevant here, the agreement made the parties "responsible for their own student loan obligations as listed on his or her respective Rule 401 financial statement." On May 4, 2015, the husband filed a complaint for modification of alimony, seeking to suspend his obligation to pay alimony due to the termination of his employment, the exhaustion of his savings, and durational limits. On August 3, 2015, the wife filed a complaint for contempt, alleging that the husband had violated the separation agreement by blocking the sale of the former marital home and by failing to make mortgage payments on that home and on a student loan. On August 24, 2015, the husband filed an application for a criminal complaint in District Court, alleging that the wife had forged his signature on various student loan documents. After a hearing, the application was denied.

On September 28, 2015, after a hearing in Probate and Family Court on the wife's contempt complaint, the parties executed a stipulation and agreement for judgment resolving numerous issues. As pertinent here, (1) both parties agreed to pay "the student loans assigned to them in the parties' original divorce agreement"; (2) the husband agreed to transfer title of the former marital home to the wife, and the wife agreed to waive the husband's mortgage arrearages; (3) the husband agreed to pay $400 per month for the wife's health insurance through October, 2021; and (4) the wife waived "all remaining alimony payments stated in the original agreement, in consideration of the foregoing." Judgments incorporating the stipulation entered on October 2, 2015, on both the husband's complaint for modification and the wife's complaint for contempt.

On June 8, 2016, alleging fraud and fraud on the court, the husband moved under Mass.R.Dom.Rel.P. 60(b)(3) and 60(b)(6) for partial relief from the 2013 judgment of divorce and the two 2015 judgments. The motion alleged that between 2005 and 2008, the wife had forged his name as the borrower or cosigner on several student loan documents for her son, resulting in loans now totaling over $100,000. The husband claimed to have been unaware of these loans when he entered into the agreement incorporated in the 2013 divorce judgment and the stipulation incorporated in the two 2015 judgments. On October 21, 2016, the judge denied the husband's motion. This appeal followed.

Relief under rule 60(b)(3). We review a judge's decision on a rule 60(b) motion for abuse of discretion. Owens v. Mukendi, 64 Mass. App. Ct. 820, 826 (2005), S.C., 448 Mass. 66 (2006). A motion seeking relief under rule 60(b)(3) on the ground of fraud, however, must be brought both within a reasonable time and within one year of the judgment. Id. at 823-824. Here, the husband's motion was plainly brought more than one year after the 2013 divorce judgment, and thus the judge had no choice but to deny it insofar as it sought relief from that judgment.

With regard to the 2015 judgments, the judge determined that at the time of those judgments, the husband was aware of the possibility that the wife had fraudulently caused his name to be placed on various student loan documents. More important, the judge concluded that in the stipulation incorporated in the 2015 judgments, whatever additional liability the husband assumed by reaffirming the student loan obligations and agreeing to pay for the wife's health insurance was substantially less than the dollar value of the alimony and marital-home concessions made by the wife "in consideration of" the husband's agreement.

In short, the judge concluded that the 2015 judgments as a whole worked no unfairness to the husband, and therefore he denied relief from those judgments. This did not amount to a "clear abuse of discretion," as would be required for us to reverse the judge's decision. Grindlinger v. Grindlinger, 10 Mass. App. Ct. 823, 823 (1980). Accord Murphy v. Administrator of Div. of Personnel Admin., 377 Mass. 217, 227 (1979).

Relief under rule 60(b)(6). Nor did the judge abuse his discretion in denying the husband's motion insofar as it alleged fraud on the court and sought relief under rule 60(b)(6).

"A party seeking to demonstrate fraud on the court must prove the most egregious conduct involving a corruption of the judicial process itself. Examples are bribery of judges, employment of counsel to influence the court, bribery of the jury, and the involvement of an attorney (an officer of the court) in the perpetration of fraud."

Paternity of Cheryl, 434 Mass. 23, 36 (2001) (quotation omitted). Otherwise stated:

"A 'fraud on the court' occurs where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party's claim or defense."

Rockdale Mgmt. Co. v. Shawmut Bank, N.A., 418 Mass. 596, 598 (1994), quoting from Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir. 1989).

We see no conduct alleged in the husband's motion or supporting materials that would satisfy these stringent standards. "Conduct such as nondisclosure to the adverse party or the court of facts pertinent to the matter before it, without more, does not constitute fraud on the court for purposes of setting aside a judgment under rule 60(b)." Sahin v. Sahin, 435 Mass. 396, 406 (2001). The closest the husband came was to observe that the wife's attorney had drafted the separation agreement that was incorporated in the 2013 divorce judgment, and that certain language in that agreement allegedly furthered the wife's "attempt[ ] to underhandedly thrust her son's college loan obligations onto [the] [h]usband." The husband carefully stopped short, however, of alleging that the wife's attorney knowingly drafted the language for that purpose, or that the attorney took any other action that might constitute fraud on the court.

Order denying motion for relief from judgments affirmed.

      The husband acknowledges in his affidavit in support of his motion for relief that the agreement also provided that he had cosigned and was an indemnitor on one student loan for the benefit of his former stepson, the biological son of the wife. The parties had no children together.

      On August 25, 2015, the husband filed an answer to the complaint, in which he "acknowledges in part non-payment of Student Loans due to outstanding questions regarding legitimacy of these Loans[,]" and alleged discovery of "forged loan applications" on two Sallie Mae loans that he claimed to have been unaware of when he signed the separation agreement in 2013. He also stated that he had filed a criminal complaint and notified various entities for "possible criminal prosecution."

      This provision appears to have added specificity to the husband's existing obligation under article 10 of the separation agreement to provide health insurance for the wife.

      For clarity, we note that these judgments, although not entered until October 2, 2015, were actually dated September 28, 2015, and were mistakenly referred to in subsequent proceedings as having been dated August 28, 2015.

      In all pertinent respects, Mass.R.Dom.Rel.P. 60(b) is identical to Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974). Sahin v. Sahin, 435 Mass. 396, 398 n.4 (2001).

      The husband had not only applied for criminal complaints making such allegations, but had also made them in his August 24, 2015, answer to the wife's contempt complaint, and in a motion he filed that same day to modify the separation agreement. We recognize that, as the husband argues, the judge's decision on the rule 60(b) motion erroneously found that the husband, prior to the 2015 judgments, had filed a trustee process motion making such allegations; the trustee process motion was not filed until 2016. We have also considered the husband's argument that the judge clearly erred in finding that the husband received, on September 28, 2015, a letter bearing that same date from Northstar Location Services, putting him on further notice of such possibly fraudulent loans. We view these points as immaterial to the judge's well-supported finding, based on the husband's other filings, that the husband was on notice of possible fraud prior to the 2015 judgments.

      The judge could also have considered that the husband's motion did not plainly establish which, if any, allegedly fraudulently obtained loans had not been disclosed to the husband prior to the 2015 judgments. We are, for example, unable to determine from the record which loans were subsumed in the "consolidation loan" of which the husband claimed he was unaware. Nor did the husband help clarify matters when he failed to list any student loans whatsoever as liabilities on his 2015 financial statement, despite having listed, on his 2013 statement, two student loans totaling approximately $112,000, and on his 2014 statement, two differently-dated student loans totaling approximately $150,000.


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. Mark D. DEGRACE, Jr.
    17-P-825
    Appeals Court of Massachusetts.
    Entered: April 20, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury trial in the Superior Court, the defendant, Mark D. DeGrace, Jr., was convicted of assault and battery by means of a dangerous weapon and two counts of intimidation of a witness. DeGrace appeals from all the convictions, claiming only that the evidence was insufficient as to one count of intimidation of a witness. We affirm.

Background. Viewing the evidence in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), the jury could have found the following facts. Nelson Gonzalez and his fiancée, Desire Littleton, lived with Desire's brother, Martin Littleton, in Hyannis. On February 5, 2016, around 5:30 P.M., while Gonzalez, Desire, and Martin were home, DeGrace arrived and tried to gain entry into the house. DeGrace banged on the back door and tried to come in through the window. Martin let him in and they started arguing. Desire called the police.

The next day, Gonzalez was walking from the house to his friend's car, an Acura, as DeGrace drove up to the house in a Subaru auto. DeGrace parked the Subaru, blocking the Acura, rolled down his windows, and asked Gonzalez "why you all" would not let him in the house. Gonzalez did not respond and walked toward the passenger side of the Acura. When Gonzalez saw DeGrace pull out a baseball bat from the Subaru, he began to run. DeGrace struck Gonzalez on the left side of his head. DeGrace returned to his car and stated, "I'm going to get you one by one." Meanwhile, Desire, who was in the house during the incident, heard Martin yelling. She went to the living room and looked out the window. She saw DeGrace get into the Subaru and drive away. Gonzalez and Desire eventually drove to the Cape Cod Hospital.

Three Barnstable police officers were dispatched to the Littleton residence, including Officer Corbin Fries and Officer Sean Roycroft. They spoke with Martin about the incident. Officer Fries went to the hospital where he saw Desire and Gonzalez. Desire appeared to be shaking. Eventually, Gonzalez admitted to being assaulted by DeGrace.

Afterward, Officer Fries arrested DeGrace during a traffic stop. When DeGrace was arrested, he stated, "Whoever called you, tell them to meet me in my cell." During booking, Officer Roycroft saw DeGrace making a telephone call. During the call, DeGrace stated, "I only get myself into trouble that I know I can get myself out of." DeGrace then made a punching motion and stated, "I'm going to kill those mother fuckers."

Discussion. Sufficiency of the evidence. DeGrace argues that the evidence was insufficient to prove the charge of witness intimidation as to Desire Littleton. In reviewing the denial of a motion for a required finding of not guilty, we "look at the evidence in the light most favorable to the Commonwealth to determine whether any rational jury could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Belle Isle, 44 Mass. App. Ct. 226, 229 (1998).

"Conviction of witness intimidation under G. L. c. 268, § 13B, requires the Commonwealth to prove beyond a reasonable doubt that '(1) the target of the alleged intimidation was a witness in a stage of a criminal proceeding, (2) the defendant wilfully endeavored or tried to influence the target, (3) the defendant did so by means of intimidation, force, or threats of force, and (4) the defendant did so with the purpose of influencing the complainant as a witness.' " Commonwealth v. Robinson, 444 Mass. 102, 109 (2005) (footnote omitted), quoting from Commonwealth v. McCreary, 45 Mass. App. Ct. 797, 799 (1998). "[A]n 'action does not need to be overtly threatening to fall within the meaning of "intimidation." ' " Commonwealth v. Cohen (No. 1), 456 Mass. 94, 124 (2010), quoting from Commonwealth v. Casiano, 70 Mass. App. Ct. 705, 708 (2007). Instead the jury may consider "[t]he place, time, and circumstances" of the intimidating conduct. Commonwealth v. McCreary, supra at 800. Moreover, it is not "necessary to establish that the intimidation was successful in the sense that the target of the intimidating conduct was actually frightened and made reluctant to testify." Commonwealth v. Rivera, 76 Mass. App. Ct. 530, 535 (2010).

Here, it was reasonable for the jury to find that DeGrace intended his comments to interfere with Desire's participation in the criminal proceedings. Desire made the initial telephone call to the police the day before the assault. DeGrace returned the following day, stating that he would "get you one by one." The jury could reasonably infer that "you" also included Desire. It is of no consequence that DeGrace did not know that Desire was in the house at the time that the statement was made. Indeed, threats communicated to a third party need not reach the intended target. See Commonwealth v. Valentin V., 83 Mass. App. Ct. 202, 206 (2013) ("[A] defendant may act 'directly or indirectly,' and the focus here ... is on the defendant's actions and intentions, not the victim's reaction"). And, while this statement alone is sufficient to support the conviction, the time, place, and context of DeGrace's statements during and after his arrest further bolsters this conclusion. See Commonwealth v. Robinson, 444 Mass. at 111.

Judgments affirmed.

      Although the defendant's surname is spelled "Degrace" in his brief, we adhere to the spelling "DeGrace" (with a capital "G") that appears in the indictments.

      The defendant was also indicted on a third count of intimidation of a witness, three counts of threatening to commit a crime, and two counts of trespass. Prior to trial, the Commonwealth entered a nolle prosequi on the third count of witness intimidation, one count of threatening, and both counts of trespass. At the conclusion of the Commonwealth's case, the judge allowed the defendant's motion for required findings as to the two remaining counts of threatening.

      As the Littletons share a surname, we use first names to avoid confusion.

      DeGrace does not challenge the witness intimidation conviction regarding Gonzalez. He also raises no argument as to the charge of assault and battery by means of a dangerous weapon. We affirm those convictions without further discussion.


text:
    COMMONWEALTH v. Darrell SMITH.
    17-P-654
    Appeals Court of Massachusetts.
    Entered: April 30, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Darrell Smith, was convicted by a jury of armed robbery, G. L. c. 265, § 17 ; possession of a firearm without a license as a subsequent offender, G. L. c. 269, § 10(a ) and (d ), and as an armed career criminal, G. L. c. 269, § 10G ; and various other firearm offenses. The judgments were affirmed by the Supreme Judicial Court. Commonwealth v. Smith, 460 Mass. 385 (2011). Thereafter, the defendant filed a motion for a new trial asserting, among other things, that (i) the Commonwealth failed to provide potentially exculpatory evidence and (ii) his Sixth Amendment right to a public trial was violated when members of the public, including his mother, were excluded from the court room during jury selection. The motion judge, who was not the trial judge, denied the motion in a well-reasoned memorandum of decision. We affirm.

1. Background. Because the facts of this case were already set forth by the Supreme Judicial Court in connection with the defendant's direct appeal, we review them only briefly here. In the early morning hours of May 7, 2006, the victim, Trent Harvey, was driving in the Dorchester section of Boston when he saw Elizabeth Splaine, a sex worker with whom he was familiar, and gave her a ride. The two drove to several locations, including a bank in Cambridge from which Harvey withdrew $500 from an automated teller machine. Splaine saw Harvey place the money in the visor above his seat. Harvey dropped Splaine at her mother's house and proceeded to visit his daughter, leaving her $100. He then returned to pick up Splaine, who eventually asked Harvey to drive her to a particular intersection in Dorchester to meet a friend. When they arrived at the intersection, they found the defendant and Mahogany Penn, a woman with whom Harvey was familiar.

The defendant opened the door to let Splaine out and proceeded to enter Harvey's vehicle, point a firearm at Harvey's side, and command him to drive. The defendant took Harvey's gold chain and the remaining $400 that Harvey had placed in the vehicle's visor. Harvey managed to escape soon thereafter.

Boston police officers were called to the scene. Harvey reluctantly reported the theft and described the defendant, Splaine, and Penn. While Harvey was speaking to the police, Splaine walked out of a nearby apartment building. Several minutes later, Penn exited the same apartment building, spoke to Splaine, and returned to the building. Harvey identified Splaine and Penn as the women who had robbed him.

One of the officers recognized Splaine from an incident that had occurred one week earlier during which Splaine was present in a particular apartment (located in the same apartment building from which Splaine and Penn had exited) with a man matching Harvey's description of the male assailant. The police officers proceeded to the apartment and knocked on the door. Penn ran out of the apartment. She was visibly shaken and stated, "He has a gun. He's wrapping it in a black sock." The officers evacuated the apartment building, found and arrested the defendant, and located a loaded firearm in a black sock on the ground directly below the window of the apartment.

Upon returning to the station, police Detective Robert Zingg unloaded and then fumed the firearm before sending it to the latent print unit. This procedure was described in a police incident report. Later testing by the latent print unit uncovered no fingerprints on the firearm.

On further appellate review, the Supreme Judicial Court affirmed the judgments. Smith, 460 Mass. at 386. The defendant's subsequent motion for a new trial was denied. This appeal followed.

2. Discussion. We review an order denying a motion for new trial to "determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Grace, 397 Mass. 303, 307 (1986). "[W]hen a new trial claim is constitutionally based, as in the instant case[ ], 'this court will exercise its own judgment on the ultimate factual as well as legal conclusions.' " Commonwealth v. Laguer, 448 Mass. 585, 593 (2007), quoting from Commonwealth v. Healy, 438 Mass. 672, 678 (2003).

a. Failure to disclose evidence. The defendant first maintains that the motion judge erred in denying his motion for new trial because the Commonwealth denied him due process by failing to disclose documentation of the fuming process despite requests to do so during discovery. See Brady v. Maryland, 373 U.S. 83, 87 (1963). We begin by noting that, at oral argument, the defendant's appellate counsel clarified that the defendant's Brady claim was not based on the police incident report, which documented that Zingg fumed the firearm, because that report was provided to the defendant. Instead, the defendant's Brady claim rests on his contention that the Commonwealth should have created an additional report of the fuming procedure. The argument lacks merit. Commonwealth v. Caillot, 454 Mass. 245, 262 (2009) ("The so-called Brady obligation is one of disclosure; it imposes no obligation on the prosecution to gather evidence or conduct additional investigation").

Even assuming arguendo that the Commonwealth failed to disclose some hypothetical documentation concerning Zingg's fuming procedure, the defendant has not met his burden to show that this supposed evidence was exculpatory in that it tended to negate his guilt or support his innocence. Id. at 261-262. To the contrary, the evidence that he now argues should have been disclosed-which he speculates might have shown that fingerprint evidence may have been destroyed by Zingg's supposed improper performance of the fuming process-would have weakened his defense at trial. Specifically, during closing argument, trial counsel emphasized the absence of the defendant's fingerprints on the firearm in support of his innocence. Evidence that Zingg inadvertently erased fingerprints on the firearm would have provided the jury with an explanation as to why the defendant's fingerprints were not on the firearm. Nor can the defendant meet his burden to show that the supposedly withheld fuming report was exculpatory by relying on speculation that Zingg erased a third party's fingerprints. See, e.g., Laguer, 448 Mass. at 597-598.

b. Right to a public trial. The defendant also contends that his right to a public trial under the Sixth Amendment to the United States Constitution was violated when his family was barred from the court room during jury empanelment. Where, as here, trial counsel failed to object to closure of the court room, any claim of error is unpreserved. Commonwealth v. LaChance, 469 Mass. 854, 857 (2014). Accordingly, the defendant is only entitled to relief where he is able to demonstrate that the temporary closure resulted in a substantial risk of a miscarriage of justice. Ibid. See Weaver v. Massachusetts, 137 S. Ct. 1899, 1911 (2017). The defendant has failed to make such a showing and, accordingly, his claim fails.

Order entered April 21, 2017, denying motion for new trial affirmed.

      The defendant was also indicted on two charges of assault by means of a dangerous weapon, G. L. c. 265, § 15B(b ) ; and one charge of receiving stolen property, G. L. c. 266, § 60. The Commonwealth entered a nolle prosequi on the receiving stolen property charge and on one of the assault charges. The other assault charge was dismissed by the trial judge as duplicative of the armed robbery charge.

      As set forth in the Boston police department latent print processing manual, "Cyanoacrylate fuming is a method for developing friction ridge impressions .... Cyanoacrylate vapor is thought to polymerize due to a reaction with water and possibly other latent print constituents to form a white deposit." The process is used to test an item for latent fingerprints.

      A panel of this court had previously reversed the judgments on direct appeal in an unpublished decision issued pursuant to our rule 1:28, Commonwealth v. Smith, 77 Mass. App. Ct. 1112 (2010).

      The defendant initially filed a pro se motion for new trial. While the motion was pending, the defendant filed a motion for additional discovery of evidence related to the fuming, which was allowed. With the help of appointed counsel, the defendant filed an amended motion for new trial. We refer to both the pro se and amended motions as the motion for a new trial.

      The defendant also maintains that the Commonwealth acted in bad faith by failing to disclose additional documentation of the fuming. Because there is nothing to suggest that the Commonwealth possessed any undisclosed documentation, we disagree.

      For the same reasons, the defendant has not demonstrated that "a substantial basis exists for claiming prejudice from the nondisclosure." Commonwealth v. Tucceri, 412 Mass. 401, 412 (1992).

      "There is nothing in the Constitution of this Commonwealth corresponding to the right to a 'public trial' expressly granted by the Sixth Amendment to the Constitution of the United States." Commonwealth v. Blondin, 324 Mass. 564, 570 (1949). Accordingly, the defendant's claim rests on the Sixth Amendment to the United States Constitution.

      In light of our conclusions, we need not separately address the defendant's claim that trial counsel was ineffective for failing to raise the alleged discovery violation or to object to the closure of the court room.


text:
    COMMONWEALTH v. Kiara MARK.
    17-P-549
    Appeals Court of Massachusetts.
    Entered: April 30, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a trial in the District Court, a jury found the defendant, Kaira Mark, guilty of operating a motor vehicle while under the influence of alcohol, in violation of G. L. c. 90, § 24(1)(a )(1). On appeal, the defendant contends that the Commonwealth failed to corroborate her admission that she was operating the vehicle. She also contends, for the first time on appeal, that the judge erred by failing to give a curative instruction, sua sponte, concerning the arresting officer's opinion that the defendant was "intoxicated." We affirm.

Background. The evidence, viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1978), was as follows:

On February 20, 2016, at approximately 2:45 A.M. , Braintree police Officer Brian Eng responded to a motor vehicle crash at the corner of Granite Street and Lundquist Drive. Upon arrival, he observed a black sedan straddling the double-yellow line in the middle of Granite Street and debris on the road between the car and a visibly damaged telephone pole. The vehicle had major front-end damage on the passenger side, was leaking fluids, and all of the airbags had deployed. The defendant, who was two or three feet away from the car when Eng arrived, told him that she had been driving because her friend was too drunk to drive. The friend, a young woman who was the registered owner of the vehicle, was curled up in a fetal position in the back seat.

The defendant had bloodshot eyes, and a moderate odor of alcohol emanated from her breath. Her speech was "thick tongue[d] and slurred," as she bounced back and forth between topics of conversation with Eng. On her way into the police station, the defendant was stumbling and unsteady on her feet. Once at the station, Eng asked the defendant to count backwards from fifty-seven to forty-two. She agreed to take the test, but did not count backwards in numerical order. At trial, when asked his opinion of the defendant's sobriety, Eng opined that "she was intoxicated."

Discussion. 1. 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. Ross, 92 Mass. App. Ct. 377, 378 (2017), quoting from Commonwealth v. Oberle, 476 Mass. 539, 547 (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 (2016), quoting from Commonwealth v. Woods, 466 Mass. 707, 713, cert. denied, 134 S. Ct. 2855 (2014).

The defendant contends the evidence at trial was insufficient to corroborate her admission to operating the vehicle. An uncorroborated admission is insufficient "to warrant a finding by the jury on the element of operation." Commonwealth v. Adams, 421 Mass. 289, 291 (1995). See Commonwealth v. Leonard, 401 Mass. 470, 473 (1988) (minimal, speculative evidence other than defendant's admission insufficient to prove operation). Corroborative evidence is "some evidence, besides the confession, that the criminal act was committed by someone," proving that "the crime was real and not imaginary." Commonwealth v. White, 475 Mass. 724, 738-739 (2016), quoting from Commonwealth v. Forde, 392 Mass. 453, 458 (1984).

The Commonwealth is not required to offer direct evidence to prove operation. See Commonwealth v. Beltrandi, 89 Mass App. Ct. 196, 199-200 & n.4 (2016). Indeed, "[p]roof of operation may 'rest entirely on circumstantial evidence.' " Commonwealth v. Petersen, 67 Mass App. Ct. 49, 52 (2006), quoting from Commonwealth v. Cromwell, 56 Mass. App. Ct. 436, 438 (2002).

The Commonwealth presented circumstantial evidence, in addition to the defendant's admission, to prove that the crime occurred and that the defendant operated the motor vehicle. The evidence placed the defendant within three feet of the car upon the officer's arrival. The position of the car in the road, and the damage to it and the telephone pole, indicated recent operation. See Beltrandi, supra at 202, quoting from Commonwealth v. Hilton, 398 Mass. 63, 68 (1986) ("The manner in which the [vehicle] was parked ... was evidence that it may have been driven by a driver under the influence of alcohol"). Tellingly, the defendant cooperated with Eng's counting backwards test. See Commonwealth v. O'Connor, 420 Mass. 630, 632 (1995) (defendant's admission of operation corroborated by "facts and circumstances surrounding the accident and from the defendant's cooperation with the field sobriety tests").

The defendant contends that the presence of the registered owner of the vehicle in the back seat undermines the probative value of the Commonwealth's circumstantial evidence. However, "[t]he fact that there were other persons present at the scene, unsupported by evidence tending to suggest that someone other than the defendant was operating the [vehicle], cannot serve to undermine the probative value of the corroborative evidence previously discussed." Adams, supra at 291-292. See Beltrandi, supra at 201 ("[T]he presence of a second person [does] not render the inference that the defendant was the operator of the vehicle unreasonable"). Here, nothing suggested that the vehicle owner, found curled up in the back seat, had been driving; rather, the evidence suggested that she was too drunk to drive, as the defendant had said. Compare Leonard, supra at 472 (defendant's wife, who was also in vehicle when police arrived, testified she was operator). The condition of the owner further corroborated the defendant's admission. The Commonwealth's evidence "did not require the jury to make a 'leap of conjecture' to infer that the defendant was the operator of the vehicle," Beltrandi, supra at 202, quoting from Commonwealth v. Latney, 44 Mass. App. Ct. 423,426 (1998), and was thus sufficient corroboration.

2. Jury instruction. The defendant contends that because Eng's testimony that she was intoxicated touched upon the ultimate issue, the judge was required to instruct the jury, sua sponte, that Eng's testimony "is not dispositive of the matter." Commonwealth v. Lugo, 63 Mass. App. Ct. 204, 208 (2005). "The danger posed by a witness, especially a police officer witness, offering an opinion regarding a defendant's guilt is 'that 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 (2013), quoting from Commonwealth v. LaCorte, 373 Mass. 700, 705 (1977). Because the defendant did not raise this objection at trial, our review is limited to determining whether the alleged error created a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). We discern no such risk.

A police officer is permitted, as a lay witness, to express an opinion on a defendant's sobriety. See Canty, supra at 540. An officer may not offer an opinion on "whether a defendant operated a motor vehicle while under the influence of alcohol or whether the defendant's consumption of alcohol diminished [her] ability to operate a motor vehicle safely." Id. at 544. Eng's opinion that the defendant was "intoxicated" was not an opinion regarding the defendant's guilt and was admissible.

Even if a curative instruction was warranted, we discern no risk of a miscarriage of justice. "We note first that the risk of prejudice arising from the admission of an opinion that closely touches on the ultimate issue of guilt is less with lay opinion than with expert opinion, even where the lay opinion is offered by a police officer." Canty, supra at 545. Furthermore, the trial judge did instruct the jury that, as the "sole judges of the credibility of the witnesses," they must determine "which witness to believe and how much weight to give each of their testimony." With respect to the element of being under the influence, the judge instructed the jurors "to rely on your experience and common sense about the effect of alcohol" and to "evaluate any believable evidence" on the issue. Compare Canty, supra (no prejudice from erroneous admission of testimony on the defendant's impairment where judge instructed that jury "ultimately must determine whether the defendant was under the influence of alcohol, and that they may consider any opinion they heard about the defendant's sobriety 'and accept it or reject it' "). We are confident that the absence of an instruction specifically stating that Eng's opinion was not "dispositive" did not materially influence the verdict. See Alphas, supra.

Judgment affirmed.

      As noted, the defendant relies on Lugo, which states that when expert opinion on the ultimate issue is admitted, "the trial judge should instruct the jury that the witness's interpretation is not dispositive of the matter." 63 Mass. App. Ct. at 208. Eng's opinion on the defendant's sobriety was a lay opinion, not an expert opinion. See Canty, 466 Mass. at 540, 545.


text:
    BEULAH PILGRIM HOLINESS CHURCH v. Christophine OTTO & others.
    17-P-418
    Appeals Court of Massachusetts.
    Entered: April 30, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Jacqueline Frances, Anita Christmas, and Andrea Christmas. Wenley Thorney (also referred to in the record as Wenley Thorne) was allowed to intervene in the matter.

   Pursuant to Mass.R.Civ.P. 64(a), as amended, 423 Mass. 1403 (1996), a Housing Court judge reported his August 31, 2015, interlocutory order (order) for review and determination whether the Housing Court has subject matter jurisdiction to resolve a church property dispute between two factions of the Beulah Pilgrim Holiness Church (church). In the order, the judge concluded that the court had jurisdiction to determine the ultimate issue in a summary process action that Terrance Davis, acting as a purported agent of the church, brought against four of its tenants. We answer the reported order in the affirmative and remand for further proceedings.

Civil courts may resolve disputes over church property by applying neutral principles of law and avoiding entanglement in religious doctrine, polity, and practice. Jones v. Wolf, 443 U.S. 595, 602 (1979). "The State has an obvious and legitimate interest in the peaceful resolution of property disputes, and in providing a civil forum where the ownership of church property can be determined conclusively." Ibid. Courts have jurisdiction to resolve property disputes within congregational churches, such as here, in a similar way as "hierarchical churches-by inquiring into the allocation of authority within the church and according deference to the decisions of its highest authority-the only difference being that a more thorough inquiry may be needed to identify organizational authority in a congregational church." Wooten v. Crayton, 66 Mass. App. Ct. 187, 197 (2006), citing Callahan v. FirstCongregational Church of Haverhill, 441 Mass. 699, 708 (2004).

To the extent that the judge is able for summary judgment purposes to determine whether the manual or the by-laws govern the control and management of the church's properties using neutral principles of law, without becoming entangled in matters of religious doctrine, we conclude that the Housing Court has subject matter jurisdiction to do so. The scope of the judge's inquiry may include any relevant statutes, the deeds to the properties in question, and the manual and by-laws at issue. Fortin v. Roman Catholic Bishop of Worcester, 416 Mass. 781, 786 (1994). The Housing Court may not, however, "take sides" on the ecclesiastical matter of which document generally controls the church and its congregants. Wooten v. Crayton, supra at 195. However where, as the judge concluded in the order here, his inquiry will not "intrude into the religious beliefs and practices of the church," it avoids such prohibited entanglement.

Once the judge makes this initial determination, neutral principles of law can be applied to determine who, under the controlling document, may properly act as the church's agent to pursue summary judgment and obtain possession of the properties. At oral argument, counsel for the church conceded that the manual contains nothing that would require the judge to conduct a religious evaluation and stated that he "honestly d[id] not know" whether the by-laws contain any ecclesiastical doctrine that would call for such an evaluation. Church by-laws, however, are considered "a contract between the church and its members, and are interpreted according to principles of contract law." General Convention of the New Jerusalem in the United States of America, Inc. v. MacKenzie, 449 Mass. 832, 835 (2007).

We remand the matter to the Housing Court for further proceedings consistent with this memorandum and order.

So ordered.

Remanded.

      The church brought two summary process complaints: the first against Anita Christmas and Andrea Christmas on December 23, 2013, and the second against Frances and Otto on September 1, 2014. The two summary process actions were consolidated.

      In its brief, the church also raises res judicata as an issue, based on a Superior Court judge's decision in an unrelated case between the church and Davis. That issue was not part of the reported order, and therefore, is not properly before us.


text:
    COMMONWEALTH v. Viktoriya M. BLINDMAN.
    17-P-76
    Appeals Court of Massachusetts.
    Entered: April 30, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant had been charged by complaint with a second or subsequent offense of operating a motor vehicle while under the influence of intoxicating liquor, disorderly conduct, and two counts of assault and battery on a police officer. After an evidentiary hearing, the defendant's motion to suppress was denied. Thereafter, a single justice of the Supreme Judicial Court granted the defendant leave to appeal the order denying the motion to suppress, and the matter was reported to this court. We affirm.

The defendant claims the motion judge erred in denying the motion to suppress because the police were not justified in issuing an exit order and that there was no probable cause to arrest her. We disagree.

Although the motion judge concluded that probable cause to arrest the defendant did not exist at the time of the exit order, we note that contrary to the defendant's claim, probable cause is not required to justify an exit order. There are three bases upon which an exit order issued to a passenger in a vehicle may be justified: (1) an objectively reasonable concern for the safety of the officer or other persons, (2) reasonable suspicion that the passenger is engaged in criminal activity, or (3) pragmatic reasons, e.g., to facilitate an otherwise lawful search of the vehicle pursuant to the automobile exception to the warrant requirement. See Commonwealth v. Cruz, 459 Mass. 459, 466-467 (2011). Also, "it does not take much for a police officer to establish a reasonable basis to justify an exit order or search based on safety concerns." Commonwealth v. Gonsalves, 429 Mass. 658, 664 (1999). The test is an objective one, taking into consideration the "totality of circumstances." Id. at 665, quoting from State v. Smith, 134 N.J. 599, 618 (1994). See Commonwealth v. Goewey, 452 Mass. 399, 406-407 (2008).

Here, the police officer was justified in issuing an exit order to the defendant because of his reasonable suspicion, based on specific and articulable facts, that the defendant had been the operator of the car, that she was intoxicated, and she had fled the scene of an accident. To the extent the defendant was found in the passenger's seat when the police officer approached, and the 911 caller used masculine pronouns to describe the operator of the car, there was also evidence that the officer, as he approached the car, saw the defendant in the process of maneuvering over the center console, i.e., "switching" seats with the nonintoxicated male who had been in the passenger seat. The motion judge concluded as much when she noted in her findings that the officer "may have concluded that he had cause to order her out of the vehicle" in order to investigate "the defendant's seat maneuver" and her "apparent intoxication," and that she was likely "responsible for the described erratic operation." In addition, the car was seriously damaged, which was consistent with the 911 caller's report that it had been in an accident before the car fled the scene. Given these circumstances, the exit order was justified in order to permit the officer to make a threshold inquiry.

Furthermore, when the defendant would not exit the car upon command, she began her assaultive behavior which culminated in her striking one of the officers. Having done so, the police had probable cause to arrest her for assault and battery on a police officer. Upon these facts, the defendant claims that she had the right to resist the officer's excessive use of force. However, there is no merit to this claim, as the motion judge made no finding that the officers used excessive force. Rather, the motion judge found that the officers were trying to "assist" the intoxicated defendant out of the car when the defendant became verbally abusive and physically combative. The defendant's actions were not lawful. See Commonwealth v. Moreira, 388 Mass. 596, 601 (1983) (defendant is not privileged to use force to resist arrest in absence of excessive force by arresting officer).

Order denying motion to suppress affirmed.

      Also, as the motion judge determined, because the car was seriously damaged it had to be towed, and the police officers were justified in ordering the defendant to exit the car before it was towed. See Commonwealth v. Brinson, 440 Mass. 609, 615 (2003). It is of no moment that the defendant's companion arranged for a private company to tow the car, because the exit order preceded that occurrence.


text:
    COMMONWEALTH v. Glen R. BOVAT.
    17-P-599
    Appeals Court of Massachusetts.
    Entered: April 30, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   In 1988, the defendant pleaded guilty to two counts of aggravated rape, G. L. c. 265, § 22(a ), and one count of kidnapping, G. L. c. 265, § 26, resulting from two separate incidents in separately docketed cases. In 2000, the defendant filed a motion for a new trial on both dockets pursuant to Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). The defendant's motions were denied. The defendant entered an appeal from those denials, but eventually moved to withdraw the appeal. On June 5, 2001, the appeal was dismissed with prejudice. On December 27, 2016, the defendant filed a second motion for a new trial on both dockets pursuant to Mass.R.Crim.P.30(b). The defendant's second motion raised the same issues that were adjudicated adversely to him in his 2000 motion; the second motion was denied, and the defendant filed a notice of appeal on both dockets. We affirm.

The claims raised by the defendant in his second motion for a new trial are precluded by direct estoppel. Direct estoppel bars the relitigation in a motion for a new trial of issues which were "actually litigated and determined on the defendant's original motion." Commonwealth v. Rodriguez, 443 Mass. 707, 710 (2005). In his 2000 motion, the defendant argued that he was constructively denied counsel by counsel's failure to file certain pretrial motions. Alternatively, the defendant argued that plea counsel provided ineffective assistance for failing to challenge the sufficiency of the evidence for one count of rape, for misunderstanding the rape-shield law, for unreasonably evaluating the risk of going to trial, and for allowing the imposition of an illegal sentence. These claims, which are identical to those raised in his second motion for a new trial, were fully and finally adjudicated, and the defendant had an opportunity at that time to obtain appellate review of the denial of that motion, which he elected not to pursue, after consultation with his then-counsel. The defendant's attempt to revive his claims is unavailing.

Judgments affirmed.

Order denying motion for new trial affirmed.

      The first incident occurred on June 14, 1987, and involved one victim. The second incident occurred on November 7, 1987, and involved two victims. The defendant was indicted on numerous charges related to both incidents. As a result of the plea agreement, the remaining charges were resolved either by the filing of guilty findings without imposition of a sentence, or by the Commonwealth's filing a nolle prosequi.

      The defendant's motion to withdraw the appeal initially was denied without prejudice to renewal, accompanied by counsel's affidavit "that he [had] explained to his client the consequences of withdrawing his appeal." Thereafter, the defendant filed a renewed motion, accompanied by affidavits of both the defendant and his counsel.

      The two appeals were consolidated in this court.

      Even if the defendant's current claims were not barred, they are without merit. The defendant has failed to establish that better work by his plea counsel "might have accomplished something material for the defense." Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977).


text:
    COMMONWEALTH v. Stephen MCVEY.
    17-P-859
    Appeals Court of Massachusetts.
    Entered: April 30, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant appeals from his conviction, after a jury trial, of violating an abuse prevention order in violation of G. L. c. 209A, § 7. On appeal he argues that the evidence was insufficient to prove beyond a reasonable doubt that he knew of the terms of the order or that violation of the order could result in criminal charges. We affirm.

To prove a violation of an abuse prevention order, the Commonwealth must prove beyond a reasonable doubt that "(1) a valid G. L. c. 209A order was entered by a judge and was in effect on the date of the alleged violation; (2) the defendant violated the order; and (3) the defendant had knowledge of the order." Commonwealth v. Melton, 77 Mass. App. Ct. 552, 555 (2010), quoting from Commonwealth v. Silva, 431 Mass. 401, 403 (2000). The only element the defendant challenges is the third element-knowledge. Viewing the evidence and the reasonable inferences drawn from it in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), the jury could have found that the defendant had actual knowledge of the terms of the order. The officer who responded to the scene of the incident giving rise to the order recognized the defendant, recognized his distinctive accent, and obtained biographical information from him at the scene, including his cellular telephone (cell phone) number. The officer removed the defendant from the scene by giving him a ride to Quincy station. He (the officer) then helped the victim obtain an abuse prevention order prohibiting the defendant from contacting or being within 100 yards of the victim, and requiring the defendant to stay away from her residence, which was the apartment where the original incident took place. The order was quickly obtained and, moments later, the officer called the cell phone number the defendant had provided as his own. The officer recognized the male voice that answered as that of the defendant. The officer informed the defendant that a restraining order had been obtained, that the defendant could not "go back there," and that the defendant was not permitted to contact the victim. The defendant responded "something like okay or something like that" and "confirmed he understood." From this evidence, the jury could reasonably find, beyond a reasonable doubt, that the defendant knew of the 209A order and knew its terms-that he was to stay away from the apartment and from the victim.

It is true, as the defendant argues, that there was no evidence that the defendant was informed that violating the order could result in criminal charges. It does not follow, however, that the evidence was insufficient to support the defendant's conviction. The Commonwealth was not required to prove, as an element of the offense, that the defendant had knowledge of the criminal consequences of violating the order. Moreover, to the extent the defendant can be understood to be making a due process based argument, such an argument would fail because "[d]ue process requires that criminal statutes unambiguously describe proscribed conduct and the penalties resulting from engaging in such conduct. ... Due process does not require actual notice of criminal penalties." (Emphasis supplied.) Commonwealth v. Dowler, 414 Mass. 212, 216 n.7 (1993) (citations omitted). See Commonwealth v. Delaney, 425 Mass. 587, 592 (1997), quoting from Commonwealth v. Butler, 40 Mass. App. Ct. 906, 907 (1996).

Judgment affirmed.

      The jury reasonably could find that "there" referred to the victim's apartment from which the defendant had been removed only shortly before by the officer.

      We note that the defendant did not raise this argument below and the Commonwealth contends that, had he done so, it would have introduced evidence of the defendant's familiarity with prior restraining orders and the criminal consequences of their violation.


text:
    COMMONWEALTH v. Erich SORENSON.
    17-P-909
    Appeals Court of Massachusetts.
    Entered: April 30, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury trial in the Superior Court, the defendant, Erich Sorenson, was convicted of armed assault with intent to rob, and assault and battery by means of a dangerous weapon causing serious bodily injury. On appeal, the defendant claims that the judge erred in denying his motion to suppress. We affirm.

Background. On April 14, 2012, the defendant stabbed the victim during an attempted robbery. The victim sustained serious injury and was hospitalized for more than six weeks. Two days after the incident, an eyewitness to the stabbing identified the defendant as the assailant and told the police where he lived. Lowell police entered the residence, which was described as a three-story building with numerous apartments on each floor. Sergeant Joseph Murray knocked on the door of one of the units, and after speaking with a female, the defendant came to the door. Murray asked the defendant to step out into the hallway and, after he complied, Murray arrested him.

The defendant filed a motion to suppress both the statements that he made to the police subsequent to his arrest as well as Murray's observation of a cut on the defendant's finger. The defendant claimed that the police did not have probable cause for a warrantless arrest. After an evidentiary hearing, the judge denied the motion, finding that the police had probable cause to arrest the defendant.

Motion to suppress. The defendant filed a motion to suppress claiming that the police lacked sufficient evidence identifying him as the assailant. He claimed that the eyewitness identification of him and the victim's identification of him from a photographic array were insufficient to establish probable cause for a warrantless arrest.

"In reviewing a decision on a motion to suppress, 'we accept the judge's subsidiary findings of fact absent clear error "but conduct an independent review of [her] ultimate findings and conclusions of law." ' " Commonwealth v. Keefner, 461 Mass. 507, 515 (2012), quoting from Commonwealth v. Scott, 440 Mass. 642, 646 (2004). "We make an independent determination of the correctness of the judge's application of constitutional principles." Commonwealth v. Cassino, 474 Mass. 85, 88 (2016) (quotation omitted).

Notably, the defendant does not argue that the judge's findings are clearly erroneous. Indeed, at oral argument, he conceded that the police had probable cause and, having reviewed the record, we agree. Probable cause to arrest "exists where, at the moment of arrest, the facts and circumstances within the knowledge of the police are enough to warrant a prudent person in believing that the individual arrested has committed or was committing an offense." Commonwealth v. Franco, 419 Mass. 635, 639 (1995), quoting from Commonwealth v. Santaliz, 413 Mass. 238, 241 (1992).

Instead, on appeal, the defendant claims for the first time that the arrest was made at the curtilage of the apartment and therefore a warrant was required. The defendant also claims that all he need do is file a motion to suppress citing as the basis the mere fact that he was arrested without a warrant. We disagree on both claims.

Pursuant to Mass.R.Crim.P. 13(a)(2), as appearing in 442 Mass. 1516 (2004), a motion to suppress "shall state the grounds on which it is based and shall include in separately numbered paragraphs all reasons, defenses, or objections then available, which shall be set forth with particularity." This requirement "alerts the judge and the Commonwealth to the suppression theories at issue, and allows the Commonwealth to limit its evidence to these theories." Commonwealth v. Silva, 440 Mass. 772, 781 (2004). Unsurprisingly, the judge's findings are devoid of any discussion of this claim as it was not raised in the motion to suppress. Judges cannot be expected to rule on theories that are not presented to them. "Our system is premised on appellate review of that which was presented and argued below." Commonwealth v. Bettencourt, 447 Mass. 631, 634 (2006). This claim is waived. See Mass.R.Crim.P. 13(a)(2) ("Grounds not stated which reasonably could have been known at the time a motion is filed shall be deemed to have been waived ..."). The question of curtilage is not new and could have been raised in the motion. See Commonwealth v. Murphy, 353 Mass. 433, 436-437 (1968).

As the defendant details, a curtilage analysis is a fact-specific one. See Commonwealth v. Leslie, 477 Mass. 48, 55 (2017). Here, the Commonwealth was not on notice of the defendant's theory that he was arrested without a warrant in the curtilage of the apartment. As a result, the evidence presented on the details of the apartment building, the apartment in question, and the hallway in front of it was de minimus. In United States v. Dunn, 480 U.S. 294, 301 (1987), the United States Supreme Court set out four factors to be used to determine whether the area in question falls within the protection of the Fourth Amendment to the United States Constitution. Such an analysis must be decided on a case-by-case basis. See Commonwealth v. Fernandez, 458 Mass. 137, 143 (2010). By failing to raise this issue below, the Commonwealth was not afforded the opportunity to present evidence on the Dunn factors; the judge was not asked to make such findings; and this panel cannot review the theory, raised for the first time on appeal.

Judgments affirmed.

      We rely solely on the testimony at the suppression hearing, notwithstanding the defendant's citation to trial testimony.


text:
    Diane FUNFAR & others v. TOWN OF FALMOUTH & another.
    17-P-1048
    Appeals Court of Massachusetts.
    Entered: April 27, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Barry Funfar and Linda Ohkagawa.

      Falmouth zoning board of appeals.

   The plaintiffs brought this case pursuant to G. L. c. 40A, § 17, challenging a decision of the Falmouth zoning board of appeals (ZBA), and seeking an order temporarily ceasing the operation of a wind turbine known as "Wind 2." Summary judgment entered in the defendants' favor, in part under the doctrine of laches. In a separate case, Falmouth v. Falmouth Zoning Bd. of Appeals, No. 1472CV00003 (Barnstable County), a different judge of the Superior Court affirmed the ZBA's decision that Wind 2 (and its sister turbine, Wind 1) constitute a nuisance, and permanently ordered that the turbines cease operation. That decision was not appealed and has become final. As a result, the relief sought by the plaintiffs in this case has already been obtained. We accordingly vacate the judgment in this case, and order the entry of a new judgment dismissing this case as moot. See Aquacultural Research Corp. v. Austin, 88 Mass. App. Ct. 631, 636 (2015).

So ordered.

Vacated.


text:
    Mary Jane MACLEAN & another v. CONSERVATION COMMISSION OF NANTUCKET & another.
    17-P-746
    Appeals Court of Massachusetts.
    Entered: April 30, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Anne Jennings.

      Oak Hill Investments, LLC.

   The plaintiffs appeal from a judgment denying their motion for summary judgment on count IV of their complaint and granting judgment in the defendants' favor on that count. At issue is the interpretation of a view easement contained in a deed. All parties took the position below that the language of the easement was unambiguous. The motion judge agreed, and read the language in favor of defendant Oak Hill Investments, LLC (Oak Hill), whose interests are in the servient estate. Although we agree that the plaintiffs were not entitled to summary judgment in their favor, our de novo review of the language at issue leads us to conclude that it is ambiguous and that summary judgment should not have been entered in favor of the defendants. We accordingly vacate the judgment and remand the matter for further proceedings.

"When reviewing a grant of summary judgment we consider the pleadings, depositions, answers to interrogatories, and responses to requests for admission under Mass. R. Civ. P. 36, 365 Mass. 795 (1974), together with the affidavits, and ask if there is any genuine issue as to any material fact. See Mass. R. Civ. P. 56(c), as amended, 436 Mass. 1404 (2002). We view the evidence in the light most favorable to the nonmoving party.... Because our review is de novo, see Bank of N.Y. v. Bailey, 460 Mass. 327, 331 (2011), no deference is accorded the decision of the judge in the trial court." Federal Natl. Mort. Assn. v. Hendricks, 463 Mass. 635, 637 (2012) (citations omitted).

The essential facts are undisputed. The plaintiffs own property abutting a parcel of land at 341A Madaket Road, Nantucket, which is burdened by a view easement contained in a deed. Specifically, 341A Madaket Road is:

"[s]ubject to a permanent and non-exclusive view easement which prohibits any and all structures and/or vegetation with a height greater than eight (8') feet from existing grade upon and over said [l]ot."

The only issue is whether this language prohibits construction of a deck and staircase, neither of which will exceed eight feet in height. The plaintiffs moved for summary judgment claiming that the easement unambiguously prohibits construction of "any and all" structures, not only those that are taller than eight feet.

"Whether a contract is ambiguous is ... a question of law." Eigerman v. Putnam Invs., Inc., 450 Mass. 281, 287 (2007). "A term is ambiguous only if it is susceptible of more than one meaning and reasonably intelligent persons would differ as to which meaning is the proper one." Citation Ins. Co. v. Gomez, 426 Mass. 379, 381 (1998). Here, our de novo review of the language leads us to conclude that the absence of a comma after the word "structures" combined with the use of the term "and/or" makes it unclear whether the eight-foot height restriction applies only to vegetation or to structures as well. See Hanson v. Bradley, 298 Mass. 371, 378 (1937) (term "and/or" is "vague expression"); DiFiore v. American Airlines, Inc., 454 Mass. 486, 495 (2009) (quotation omitted) (omission of final comma within string "may cause ambiguities"). When the language of the deed by itself "do[es] not reveal an answer to the question at issue, ... [t]his is the essence of ambiguity." President & Fellows of Harvard College v. PECO Energy Co., 57 Mass. App. Ct. 888, 895-896 (2003). For this reason, neither party was entitled to summary judgment in its favor.

Although the existence of an ambiguity is a question of law, the meaning of the ambiguous language is a question of fact that will need to be determined on remand. Seaco Ins. Co. v. Barbosa, 435 Mass. 772, 779 (2002) (if contract "has terms that are ambiguous, uncertain, or equivocal in meaning, the intent of the parties is a question of fact to be determined at trial"). On remand, the judge may consider extrinsic evidence as well as the language of the deed as a whole to arrive at a reasonable interpretation of the view easement's language. See Patterson v. Paul, 448 Mass. 658, 665 (2007).

Judgment vacated.

      Originally, Oak Hill planned to also construct a swimming pool and outdoor shower, but those plans appear to have changed and at issue now are only the deck and the staircase.

      This being a case in the nature of certiorari seeking a declaratory judgment, the trier of fact is the judge.


text:
    LOTTE LLC v. Peter YOUNG.
    17-P-1317
    Appeals Court of Massachusetts.
    Entered: April 30, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Lotte LLC (Lotte) appeals from a judgment dismissing its breach of contract complaint. We affirm.

Background. We summarize the facts alleged in Lotte's complaint and the attached lease. On May 14, 2015, Peter Young and Lotte executed a lease for certain premises. The lease specifically identifies the "landlord" as "Lotte LLC" and the "tenants," plural, as "Heather Reynolds" and "Peter Yonag" [sic ]. Although the lease contains separate execution lines for both identified tenants, only Young's signature appears. The lease attached to Lotte's complaint does not show Reynolds's signature. According to Lotte, two days after signing the lease, Young "stated he would not be renting the property nor paying any of the monies due under the lease."

Lotte filed a complaint against Young alleging breach of contract. A Superior Court judge dismissed Lotte's complaint on Young's motion under Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974).

Discussion. "We review the allowance of a motion to dismiss de novo. ... We accept as true the facts alleged in the plaintiff['s] complaint as well as any favorable inferences that reasonably can be drawn from them." Galiastro v. Mortgage Electronic Registration Sys., Inc., 467 Mass. 160, 164 (2014). We also take into account "exhibits attached to the complaint." Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2000) (citation omitted). To survive a motion to dismiss, a plaintiff must include in the complaint factual allegations that rise above the level of speculation. Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008).

Lotte's complaint was properly dismissed. Lease paragraph 21 provides, correcting for spelling and other clerical errors, that:

"No rights or obligations are hereunder conferred upon either party until this lease agreement has been executed by both Landlord and Tenant, and a fully executed copy of the lease agreement has been delivered to both parties according to the terms hereof."

Lease paragraph 28 continues that:

"This lease agreement may be executed in several counterparts, ... however, this lease agreement shall not be effective or enforceable against any party hereto until all parties have executed at least one counterpart of the lease and all parties have received a counterpart of all signatures" (emphasis added).

Reynolds is, under the lease's explicit terms, an identified "tenant" and a party to the lease. Lotte does not allege that Reynolds executed the lease or received any counterpart, or that Young was authorized to act on Reynolds's behalf. As such, the lease, by its own terms, never became effective and may not be enforced. Compare Licata v. GGNSC Malden Dexter LLC, 466 Mass. 793, 803 (2014) (patient not bound by arbitration agreement with nursing home where patient did not execute agreement and signatory not authorized to sign on patient's behalf).

Notwithstanding, Lotte suggests that extrinsic evidence in the form of text messages between Young and Lotte demonstrate that Young either waived the lease's full execution requirements or otherwise intended to be bound separately from Reynolds. At the motion hearing, Lotte's counsel represented that there were text messages in which Young purportedly "confirm[ed] that he sent a signed lease." The deficiencies in Lotte's argument are twofold. First, the text messages on which Lotte relies are not in the record. Second, Lotte's representation of the messages at most suggests that Young signed and returned a copy of the lease, not that Young either waived the lease's full execution requirements or otherwise agreed to be bound as the sole tenant given Reynolds's failure to execute. Therefore, even considering the messages, dismissal of Lotte's complaint was proper.

Judgment affirmed.

      Young does not dispute that he is the "Peter Yonag" identified by the lease.

      The judge allowed Young's motion and dismissed Lotte's complaint "for the reasons stated in the defendant's [Young's] memorandum." Young argued that the lease agreement was not a fully executed contract.

      Lotte's argument that the complaint should have been dismissed without prejudice is not supported by legal authority in the brief, as mandated by Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975), and consequently does not rise to the level of proper appellate argument. See Cameron v. Carelli, 39 Mass. App. Ct. 81, 85-86 (1995).