text:
    George RIVERA'S CASE.
    17-P-520
    Appeals Court of Massachusetts.
    Entered: May 21, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The employee, George Rivera, appeals from a decision of the reviewing board of the Department of Industrial Accidents (board) that vacated an award of benefits under G. L. c. 152, §§ 13, 14(1), 30, & 34A, and enhanced attorney's fees under G. L. c. 152, § 13A. , For the reasons that follow, we affirm.

Background. Rivera has been employed as a correction officer for the Department of Correction (DOC) since 1989. On February 25, 1996, he injured both of his knees when he tried to break up a fight between two inmates. The injury required surgery on both knees. The Commonwealth accepted liability for the injury and paid Rivera total and partial incapacity benefits pursuant to §§ 34 and 35.

Rivera returned to work in 2006. In April, 2011, he sought further treatment with his orthopedic surgeon for his left knee, and he filed a claim for benefits to authorize an evaluation. The surgeon examined Rivera after the administrative judge issued a conference order requiring the Commonwealth to pay for the examination under §§ 13 and 30 in December of 2011. See G. L. c. 152, § 10A(2). The surgeon ordered a magnetic resonance imaging of the left knee and recommended further surgery. The Commonwealth appealed from the conference order, but it also issued a "utilization review approval" of the proposed surgery, suggesting that it would pay for it. On March 13, 2012, the surgeon performed surgery on Rivera's left knee. As of that date, Rivera had exhausted all of his benefits.

Thirteen days later, on March 26, 2012, the Commonwealth denied coverage for the surgery. The Commonwealth also denied Rivera's request that he receive physical therapy as recommended by his surgeon. On April 3, 2012, Rivera filed a claim for benefits under § 34A. On June 19, 2012, Rivera returned to work full-time, with no restrictions. Thereafter, the Commonwealth withdrew its appeal from the 2011 conference order. The Commonwealth paid for Rivera's medical services under §§ 13 and 30, and it also paid for the March, 2012, surgery. It did not offer to pay § 34A benefits.

An administrative judge of the Department of Industrial Accidents heard Rivera's claim for workers' compensation benefits. After considering (1) the testimony of Rivera, a DOC employee, and two employees of the Commonwealth, (2) the deposition testimony of the impartial medical examiner (IME), and (3) two reports prepared by the same IME, the administrative judge determined that Rivera's 2012 knee surgery was causally related to the 1996 injury and that Rivera "was totally disabled" from employment for the period of March 13, 2012, through June 18, 2012. Although he credited the IME's opinion that the standard recovery period from the surgery performed on Rivera "is six weeks with physical therapy after which the patient would still have pain and discomfort," the administrative judge found that Rivera was "totally disabled [following the surgery] and had no prognosis as to when or if he would be able to return to his work." He awarded Rivera § 34A benefits for the closed period when he was out of work following surgery, and he ordered the Commonwealth to pay penalties pursuant to § 14(1) because, he found, it had "expressed no reasonable basis for defending against" Rivera's claims. The administrative judge ordered the Commonwealth to pay for Rivera's medical services pursuant to §§ 13 and 30, and he allowed Rivera's motion for enhanced attorney's fees.

As noted, the board reversed the decision of the administrative judge, reasoning that Rivera was not entitled to § 34A benefits because he had not offered any medical evidence that his incapacity following surgery was "permanent." The board concluded that awarding Rivera a higher amount of weekly benefits under § 34A because he had exhausted his entitlement to a lesser amount under §§ 34 and 35 "is contrary to the statutory scheme." The board further concluded that the Commonwealth had reasonable grounds to defend Rivera's claims and therefore vacated the award under § 14(1).

Discussion. "[T]he board may reverse the decision of an administrative judge only where it is 'beyond the scope of his authority, arbitrary or capricious, or contrary to law.' " Wilson's Case, 89 Mass. App. Ct. 398, 400 (2016), quoting from G. L. c. 152, § 11C, as amended by St. 1991, c. 398, § 31. Here, the board determined that the administrative judge's award of § 34A benefits was contrary to law because Rivera did not prove permanency. We may reverse or modify this decision only if "it is based on an error of law, or is arbitrary, capricious, or otherwise not in accordance with law." Ibid. See G. L. c. 30A, § 14(7)(c ), (g ). For the following reasons, we see no error of law and nothing arbitrary or capricious in the board's decision.

Under § 34A, as amended by St. 1991, c. 398, § 60, an insurer "shall pay" benefits to an employee "[w]hile the incapacity for work resulting from the injury is both permanent and total." In this context, "total and permanent disability is intended to mean total and permanent disability to earn wages" of any kind. Frennier's Case, 318 Mass. 635, 639 (1945). The question is not whether the employee is permanently disabled from earning wages from his current or former employment; rather, it is whether "the employee's disability is such that it prevents him from performing remunerative work of a substantial and not merely trifling character." Ibid. "Whether an employee has suffered a total disability is a question of fact, and a board's finding on that issue must stand unless unsupported by the evidence." Trant's Case, 21 Mass. App. Ct. 983, 984 (1986). The employee bears the burden of showing that he is entitled to compensation. Id. at 985.

We agree with the board that Rivera did not sustain his burden of showing permanent incapacity. Neither the reports submitted by the IME nor the testimony presented at the hearing addressed Rivera's ability to earn wages. While the administrative judge found that Rivera's surgery rendered him "totally" disabled from performing the duties of a correction officer, that finding "is of little use ... since one can be 'totally' disabled temporarily or permanently." Kelly's Case, 78 Mass. App. Ct. 907, 909 (2011). The administrative judge explicitly credited the IME's testimony that the standard recovery period for the surgery performed on Rivera is six weeks, and Rivera testified that he returned to work full-time, with no restrictions, three months after the surgery.

It is the board's "exclusive function" to determine the extent of an employee's incapacity and to award compensation accordingly. Sjoberg's Case, 394 Mass. 458, 464 (1985). Here, "there was no medical evidence that the employee was permanently and totally disabled from all occupations" while he recovered from knee surgery. Kelly's Case, supra. Instead, the IME effectively testified that "recovery [from the surgery] is reasonably certain after a fairly definite time." Yoffa v. Metropolitan Life Ins. Co., 304 Mass. 110, 111 (1939). As such, the board's conclusion that Rivera's incapacity following surgery was not "permanent" within the meaning of § 34A is reasonable and entitled to deference. See Sikorski's Case, 455 Mass. 477, 480 (2009). There was no error.

The board properly vacated the § 14(1) penalties awarded to Rivera because, as the board noted in its decision, Rivera never produced any medical evidence to support his claim of total and permanent incapacity. The Commonwealth's contention that Rivera was not entitled to § 34A benefits therefore "had some plausibility." DiFronzo's Case, 459 Mass. 338, 342-343 (2011) (quotation omitted) (articulating standard for determining whether "prudent insurer would have defended the claim"). Similarly, Rivera's entitlement (if any) to § 34A benefits for a closed, three-month period presented "a fair question of law." Ibid. (quotation omitted). Finally, we agree with the board that the Commonwealth had reasonable grounds to defend against Rivera's claim for surgery "[d]ue to the passage of time between the employee's injury [and] his return to full-time work in 2006."

Rivera's request for appellate attorney's fees and costs is denied.

Decision of reviewing board affirmed.

      The board also recommitted the matter to the administrative judge for reconsideration of the attorney's fees issue. After the administrative judge declined to hear the matter on recomittal because in his view, the case had to be reassigned to another administrative judge, the Commonwealth conceded the attorney's fee issue, and the board's decision became final.

      Hereinafter, we will refer to the various provisions of G. L. c. 152 by their section number.

      DOC is self-insured through the Commonwealth.

      Pursuant to § 14(1), as amended by St. 1991, c. 398, §§ 36-38, "if any administrative judge or administrative law judge determines that any proceedings have been brought, prosecuted, or defended by an insurer without reasonable grounds: (a) the whole cost of the proceedings shall be assessed upon the insurer; and (b) if a subsequent order requires that additional compensation be paid, a penalty of double back benefits of such amount shall be paid by the insurer to the employee."

      Although neither Rivera's motion for an enhanced fee nor the administrative judge's decision specify the section under which the fee was awarded, the board reviewed the enhanced fee award under § 13A(5). In pertinent part, that section provides that "the insurer shall pay a fee to the employee's attorney in an amount equal to three thousand five hundred dollars plus necessary expenses" whenever an insurer contests a claim for benefits and the employee prevails "at a hearing pursuant to section eleven." G. L. c. 152, § 13A(5), as amended by St. 1991, c. 398, § 35. "[A]n administrative judge may increase or decrease such fee based on the complexity of the dispute or the effort expended by the attorney." Ibid.

      Quoting from Yoffa v. Metropolitan Life Ins. Co., 304 Mass. 110, 111 (1939), the board noted that "permanency is 'the opposite of temporary or transient,' " and that Rivera "failed to produce any medical evidence that his incapacity from his surgery would 'continue for an indefinite period which is likely never to end, even though recovery at some remote or unknown time is possible.' "

      Because Rivera makes no argument on appeal regarding the board's decision to vacate the §§ 13 and 30 awards, we confine our analysis to Rivera's claim of error under § 34A.

      "We review the board's decision in accordance with the standards set forth in G. L. c. 30A, § 14(7), governing appeals from final administrative agency decisions, but 'we do not review whether the board's decision was supported by substantial evidence.' " Wilson's Case, supra, quoting from Wadsworth's Case, 461 Mass. 675, 679 (2012). This is because, "[i]n workers' compensation cases, '[i]t is the exclusive function of the board to consider and weigh the evidence and to ascertain and settle the facts.' " Bisazza's Case, 452 Mass. 593, 596 (2008), quoting from McEwen's Case, 369 Mass. 851, 853 (1976).


source: Caselaw Access Project

license: Public Domain

text:
    Jerome TIBBS, petitioner.
    17-P-1067
    Appeals Court of Massachusetts.
    Entered: May 25, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The petitioner, Jerome Tibbs, is presently being housed at the Souza-Baranowski Correctional Center (Souza-Baranowski) as a pretrial detainee. She filed a petition for writ of habeas corpus in the Superior Court, contending that her removal from county jail to Souza-Baranowski was improper under G. L. c. 276, § 52A. The judge dismissed the petition on the ground that the petitioner was "a lawfully held [ § 52A ] pre-trial detainee." The petitioner's motion for reconsideration was denied.

The procedure and parameters for removing a pretrial detainee from a county jail to a State correctional institution are detailed in § 52A : "Persons held in jail for trial ... if they have been previously incarcerated in a correctional institution of the commonwealth under sentence for a felony, may, with the approval of the district attorney, be removed by the commissioner of correction to a correctional institution of the commonwealth, and said commissioner shall, at the request of the district attorney, cause them to be returned to the jail where they were awaiting trial" (emphasis supplied). G. L. c. 276, § 52A, as amended through St. 1973, c. 514.

The petitioner was arrested and held on charges stemming from offenses alleged in both Suffolk and Norfolk County. She was held in the Suffolk County jail and subsequently transferred to Souza-Baranowski, a State correctional institution where she had previously been incarcerated as a result of a felony conviction. She argues that her present pretrial detention is unlawful as it does not comply with the requirements of § 52A. She further challenges her bail as excessive and contends that she has been hindered from contacting her attorney. Because we conclude that a habeas petition is not the proper vehicle to press the latter two arguments, as those contentions should properly be raised in her pending criminal proceedings, they need not be further discussed in this memorandum and order. See Doyle v. Commonwealth, 472 Mass. 1002, 1003 (2015). Cf. Sheriff of Suffolk County v. Pires, 438 Mass. 96, 99-101 (2002).

Ultimately, it is unclear on the record before us whether the petitioner was transferred with the required approval from the Suffolk County district attorney. At oral argument, the Commonwealth asserted that the Supreme Judicial Court's order no. 49, SJ-1984-278 and SJ-1984-282 (Nov. 6, 1990), addressing overcrowding in the Suffolk County jail created an implicit and ongoing agreement for the transfer of past felons to a State correctional institution. That order recommends the continued use of § 52A as a means to combat overcrowding, but it is unclear whether it serves to override the statutory requirement of district attorney approval. Thus, we vacate the judgment dismissing the petition for writ of habeas corpus and remand the case to the Superior Court for development of that question and to ultimately determine whether the transfer complied with the statutory requirements of § 52A.

So ordered.

Vacated and remanded.

      As the petitioner identifies as a transgendered woman, we use feminine pronouns.

      The petitioner also contends that since Souza-Baranowski is a "maximum security" prison equivalent to MCI-Cedar Junction, the statutorily designated "state prison," her pretrial detention there constitutes "infamous punishment" in violation of art. 12 of the Massachusetts Declaration of Rights. Due to our resolution here we need not reach this issue, which we leave for the court to address on remand.

      Insofar as the petitioner is challenging the conditions of her confinement, a habeas corpus proceeding also is not the proper vehicle for these claims. See Dutil, petitioner, 437 Mass. 9, 22 (2002).


text:
    PAULINI LOAM, LLC v. COLBEA ENTERPRISES, LLC & another.
    17-P-1001
    Appeals Court of Massachusetts.
    Entered: May 18, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Suburban Shell Service, Inc.

   Paulini Loam, LLC (Paulini) brought suit against abutting landowner Colbea Enterprises, LLC (Colbea) and Colbea's tenant, Suburban Shell Service, Inc. (Suburban), seeking removal of certain encroachments on Paulini's land. After a bench trial, a Superior Court judge ordered the defendants to remove some of the encroachments, but declined to order the removal of a car-wash structure and a small portion of pavement. As to the car wash, the judge ruled that the encroachment was innocent and de minimis and that requiring removal would be oppressive and inequitable to the defendants while not necessary to protect Paulini's substantial rights. As to the pavement, the judge ruled that Suburban had acquired a prescriptive easement. The parties cross-appeal.

Paulini's appeal. Paulini argues that the judge erred by not ordering the defendants to remove the car wash. We review the judge's findings of fact for clear error and his conclusions of law de novo. See Cavadi v. DeYeso, 458 Mass. 615, 624 (2011). "We examine the judge's imposition of equitable remedies under an abuse of discretion standard." Ibid., quoting from Demoulas v. Demoulas, 428 Mass. 555, 589 (1998).

The judge's reasons for not ordering removal were sound. First, he was warranted in concluding that the encroachment was innocent based on evidence that Colbea's predecessor in title had the land surveyed before building the car wash in 1997. Paulini raises no serious challenge to the factual support for the judge's determination. Instead, Paulini argues that, even if the original encroachment was innocent, Colbea cannot claim innocence because it purchased the property in the middle of litigation and thus with knowledge of the encroachment. But Paulini cites no authority to support the proposition that an encroachment, made innocently, loses its innocence upon sale of the property. Paulini's conclusory claim does not rise to the level of adequate appellate argument. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).

Second, the judge properly found the encroachment to be de minimis. The encroachment is comparable in magnitude to that in Capodilupo v. Vozzella, 46 Mass. App. Ct. 224, 227 (1999). Although Paulini contends that the encroachment here is greater, the judge found the differential to be "marginal[ ]," while Paulini's "parcel of land is roughly [ten] times as large as the encroached-upon parcel in Capodilupo." These findings are not clearly erroneous. Moreover, as in Capodilupo, Paulini has made no plausible claim that the encroachment is denying it the beneficial use of its land. Ibid.

Finally, the judge was warranted in finding that an order of removal would be oppressive and inequitable to the defendants and was not necessary to protect Paulini's substantial rights. A court of equity can refuse to require removal of an encroachment where "the cost of removal by the defendant[s] would be greatly disproportionate to the injury to the plaintiff from [the] continuation" of the encroachment. Goulding v. Cook, 422 Mass. 276, 277 n.3 (1996), quoting from Peters v. Archambault, 361 Mass. 91, 93 (1972). Here, the judge had evidence from which he could infer that the costs to the defendants of relocating or removing the car wash would be not insubstantial. Paulini, on the other hand, failed to articulate what injury it would suffer if the car wash remains where it is. The judge appropriately balanced these equities and acted within his discretion in declining to order removal.

The defendants' appeal. The defendants first contend that the judge defined Suburban's prescriptive easement too narrowly and should have found that it extended "to the edge of the car wash encroachment." But as the defendants agreed at trial, Suburban's claim to an easement depended on its proving that a fence located between the two properties had remained in the same location for twenty years. The judge found Suburban's proof to be insufficient, and the defendants acknowledge that this was not clear error. We therefore have no basis on which to reverse the judge's decision. Although the defendants now advance a theory that some unspecified "documentary evidence" supports a finding of a broader easement, we decline to consider that argument as it is unsupported by record citations and is different from the theory presented to the judge at trial. See Mass.R.A.P. 16(a)(4) ; Williams Bros. v. Peck, 81 Mass. App. Ct. 682, 688 n.7 (2012).

The defendants' next argument fares better. We agree that the judge should have concluded that Colbea acquired title by adverse possession to the encroaching portion of pavement, and not merely an easement by prescription. The judge found, and Paulini does not dispute, that Suburban "made open, notorious, continuous and adverse use of this land for well over [twenty] years." Colbea was thus entitled to title by adverse possession of the same area. See Lawrence v. Concord, 439 Mass. 416, 426 (2003) ("A person claiming title by adverse possession need not personally occupy the land for twenty years. He may rely on the possession of his tenants, whose possession is his own"); AM Properties, LLC v. J & W Summit Ave., LLC, 91 Mass. App. Ct. 150, 157-158 (2017) (landowner allowed to tack on period of use by tenant).

Conclusion. The judgment shall be modified to reflect that Colbea acquired title by adverse possession to the portion of encroaching pavement. As so modified, the judgment is affirmed.

So ordered.

      Colbea purchased the property while the case was pending and was then substituted as a defendant.

      There appears to be no dispute that the defendants have already removed these encroachments, which consist of underground vent pipes, fence sections, and a utility pole.

      The only case Paulini cites, Goulding v. Cook, 422 Mass. 276 (1996), indicates, to the contrary, that the focus of the inquiry is whether "the unlawful encroachment has been made innocently." Id. at 277 n.3, quoting from Peters v. Archambault, 361 Mass. 91, 93 (1972).

      Paulini curiously argues that other encroachments (the fence portions and the vent pipes) are preventing it from installing a fence on its property. But again, the judge ordered the defendants to remove those encroachments, and the defendants do not challenge that part of the order.

      Paulini does not contest that privity exists between Colbea and its predecessors in title.


text:
    Jeanne Sweeney MOONEY v. Setti D. WARREN & others.
    17-P-1234
    Appeals Court of Massachusetts.
    Entered: May 25, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Matthew A. Cummings, Edward Aucoin, Vincent Nguyen, and the city of Newton.

   The plaintiff, Jeanne Sweeney Mooney, appeals from the entry of summary judgment against her in the Superior Court on her ten-count first amended complaint. On appeal she focuses on two of the counts: one alleging that defendants the city of Newton, its former mayor Setti Warren, and its former police chief Matthew Cummings violated G. L. c. 151B by retaliating against her for lodging a claim of discriminatory acts by Cummings, and the other alleging a civil conspiracy among defendants Cummings, former police lieutenant Edward Aucoin, and former police department employee Vincent Nguyen. We affirm.

Background. The history and record of this case are long and voluminous; we summarize the relevant parts of the summary judgment record in the light most favorable to Mooney. On September 22, 2011, Nguyen, who was responsible for collecting cash and check payments received by the police department, reported to Aucoin, the department's internal affairs officer, that $660 in cash and $1,466.50 in checks were missing. Nguyen accused Mooney of stealing them. Aucoin informed Cummings of the allegations. Aucoin conducted an investigation and concluded that probable cause existed to charge Mooney with larceny. On September 26, 2011, Mooney was placed on paid administrative leave on suspicion of the theft. In the light most favorable to Mooney, the evidence permits the inference that both Nyugen, who reported to Mooney, and Cummings, to whom Mooney reported, had reasons to dislike Mooney prior to the alleged theft.

Rather than initiate criminal charges against Mooney, city officials, including Warren, decided to hire an outside investigator to conduct an independent investigation. The investigation, which took place from October, 2011, through January, 2012, concluded that there was probable cause to believe that Mooney had committed larceny.

In early February, 2012, Cummings was ready to initiate criminal charges against Mooney, but Nguyen, the key witness, was caught shoplifting. Any action against Mooney was delayed while Nguyen's conduct was investigated. With respect to the allegations against Mooney, Nguyen submitted to a lie detector test in March, 2012, which he passed. The charges were further delayed while Mooney was offered a lie detector test posing the same questions that Nguyen had been asked.

On May 21, 2012, Mooney, through counsel, sent Warren a presentment letter as a precursor to a lawsuit under the Massachusetts Torts Claims Act, G. L. c. 258. In her letter, Mooney set forth various allegations of misconduct by Cummings in his job performance, as well as discriminatory acts against her. On May 30 or 31, 2012, Cummings and Aucoin met with lawyers from the city solicitor's office to discuss Mooney's letter. Assistant city solicitor Jeffery Honig suggested holding "the criminal charges over Jeanne Sweeny's [sic ] head until-in hopes that she would submit to a lie detector test and that they would extend this over a long period of time until they negotiated some type of money agreement."

On June 1, 2012, Cummings was summoned to Warren's office, having been told that the mayor "wanted to discuss the demand letter and that type of thing." At that meeting, although there is no evidence that the demand letter was discussed, Warren asked the city solicitor for her opinion "[o]n what they should do and which avenues they should take." According to Cummings, the options under consideration included "[t]he hanging it over their heads for the lie detector test and dragging it on further and further and further." Cummings told Warren that "[he] thought the [c]ity made a mess here, [he didn't] want to hang anything over anybody's head, she's not going to take a lie detector test, and that was about it." "[T]he mayor took about a half a second" to tell Cummings to go ahead with the criminal charges.

On June 5, 2012, Aucoin initiated criminal proceedings against Mooney in the Framingham Division of the District Court Department. After a probable cause hearing held on August 21, 2012, a clerk magistrate found probable cause to issue a criminal complaint charging Mooney with larceny. She was acquitted after a jury trial held in May, 2013, and returned to work in late 2013. Meanwhile, the city commissioned an independent investigation of Mooney's allegations of Cummings's misconduct, which the investigator substantiated. The city relieved Cummings of his duties in October, 2012. An arbitrator later determined that the city's action against Cummings was unfounded.

Discussion. 1. Retaliation. To prevail on a claim of retaliation, an employee must show that the employer took adverse action against the employee in response to the employee's protected activity. Verdrager v. Mintz, Levin, Cohen, Ferris, Glovsky & Popeo, P.C., 474 Mass. 382, 405-406 (2016). "[T]he employer's desire to retaliate against the employee must be shown to be a determinative factor in its decision to take adverse action." Psy-Ed Corp. v. Klein, 459 Mass. 697, 707 (2011). In this case, Mooney must prove that Warren ordered the initiation of criminal charges against her in retaliation for her presentment letter alleging discrimination by Cummings (and threatening to sue the city). Although Mooney would bear the ultimate burden at trial, at the summary judgment stage Warren, as the moving party, must affirmatively demonstrate the absence of a genuine issue of material fact on every relevant issue. See Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 39 (2005) ; Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 683 (2016).

The summary judgment record provides no evidence that Warren directed Cummings to initiate charges against Mooney because of her letter. In the light most favorable to Mooney, the evidence permits the inference that Warren gave Cummings permission to go forward-which Cummings had wanted to do months before Mooney sent the letter-after a discussion of the city's options for dealing with Mooney's letter. Thus, the question is whether "a reasonable jury could infer," Bulwer, supra at 682, from this sequence of the events that Warren instructed Cummings to proceed not on the merits of the charges against Mooney, but because she complained and threatened suit.

"Of course, '[t]he mere fact that one event followed another is not sufficient to make out a causal link.' " Mole v. University of Mass., 442 Mass. 582, 592 (2004), quoting from MacCormack v. Boston Edison Co., 423 Mass. 652, 662 n.11 (1996). "Where, as here, adverse employment actions or other problems with an employee predate any knowledge that the employee has engaged in protected activity, it is not permissible to draw the inference that subsequent adverse actions, taken after the employer acquires such knowledge, are motivated by retaliation." Id. at 594. We agree with the motion judge that this is not a case in which the sequence of events permits a reasonable inference of retaliation.

Mooney is not entitled to an inference of causation as a "satisfactorily performing employee" against whom adverse action is taken "in the immediate aftermath" of protected activity. Mole, supra at 592. We understand the term "satisfactorily performing employee" as used in the Mole decision to refer to an employee who has not, prior to the exercise of protected activity, given the employer any reason to take adverse action. Even if Mooney was otherwise satisfactorily performing her job duties, her suspension on allegations of larceny, which occurred long before she submitted her demand letter, negates any inference that can be drawn from the timing of when criminal charges were filed.

2. Civil conspiracy. To prove civil conspiracy, Mooney was required to "show an underlying tortious act in which two or more persons acted in concert and in furtherance of a common design or agreement." Bartle v. Berry, 80 Mass. App. Ct. 372, 383-384 (2011). "It is not sufficient to prove joint tortious acts of two or more persons...." Gutierrez v. Massachusetts Bay Transp. Authy., 437 Mass. 396, 415 (2002), quoting from Nolan & Sartorio, Tort Law § 99, at 134 (2d ed. 1989). Rather, the plaintiff must demonstrate that the participants acted pursuant to an agreement. Ibid.

Mooney's theory is that Nguyen, Cummings, and Aucoin conspired to bring false charges against her as early as the day of the alleged theft or, at the latest, after Nguyen was caught shoplifting. "[A]n inference of an implied agreement could properly be drawn from the conduct of two or more parties," Kyte v. Philip Morris Inc., 408 Mass. 162, 167 (1990). Accordingly, to be entitled to summary judgment, the defendants must show that no reasonable jury could find or infer the existence of an agreement among them to pursue false criminal charges against Mooney.

We agree with the motion judge that the defendants carried their burden. In the light most favorable to Mooney, the evidence supported the inference that Nguyen and Cummings each harbored ill-will against Mooney for different reasons. Again, indulging all inferences in Mooney's favor, the record might even support her claim that Nguyen made false statements concerning her involvement in the theft. However, the summary judgment record provides no evidence of ill will on the part of Aucoin or any indication that he or Cummings had an agreement with Nguyen, or knowingly assisted or encouraged Nguyen, to pursue groundless charges. While there was evidence showing that they all acted independently to press charges, there is no evidence in the record that would warrant an inference of concerted action to pursue false charges.

Judgment affirmed.

      Warren testified in his deposition that he told Cummings from the outset that any decision regarding criminal prosecution of Mooney were for Cummings to make. Warren categorically denied making any decision with respect to the criminal charges or taking part in any conversation about using the threat of criminal charges as a bargaining chip with Mooney.

      As Mooney conceded in her opposition to Cummings's summary judgment motion, Cummings could not be liable for retaliation under c. 151B because his desire to proceed against Mooney was manifest long before she sent the demand letter. Thus, any liability on the part of the city necessarily must be based on Warren's actions. See Bain v. Springfield, 424 Mass. 758, 765 (1997).

      The tort of malicious prosecution requires proof that the defendants "instituted criminal proceedings against her with malice and without probable cause." Correllas v. Viveiros, 410 Mass. 314, 318 (1991).


text:
    COMMONWEALTH v. Thomas L. MAYRAND.
    14-P-1314
    Appeals Court of Massachusetts.
    Entered: May 24, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury-waived trial in the District Court, the defendant, Thomas L. Mayrand, was convicted of operating a motor vehicle on a public way with a blood alcohol content of 0.08 percent or greater. On appeal he argues that the test results produced by a breath-testing instrument known as the Draeger Alcotest 7110 MK III-C breathalyzer (Draeger Alcotest) were inadmissible.

The defendant had filed a pretrial motion to suppress the results of a breathalyzer test he took using the Draeger Alcotest. As a result of proceedings before the Supreme Judicial Court, a number of cases, including the defendant's, were consolidated before a specially assigned District Court justice (assigned justice) for the purpose of hearing a collective motion to exclude the test results produced by the Draeger Alcotest. In February, 2011, the assigned justice, after reviewing the submissions of the parties, denied the motion without a hearing. The defendant's trial followed in August, 2012. The defendant's appeal from his conviction was entered in this court in August, 2014, but was stayed essentially from March, 2015, until December, 2017, pending the outcome of appeals in the Supreme Judicial Court regarding one of the other consolidated cases heard by the assigned justice.

On June 12, 2015, the Supreme Judicial Court released Commonwealth v. Camblin, 471 Mass. 639 (2015) (Camblin I ). Camblin I vacated the order of the assigned justice denying the motion to exclude test results and remanded the matter, requiring that a hearing be held on the scientific reliability of the Draeger Alcotest. After conducting a hearing upon remand, the assigned justice again denied the motion, finding that the source code for the Draeger Alcotest was reliable, that the Dreager Alcotest instrument is capable of testing exclusively for ethanol, and that any errors in the source code for the Draeger Alcotest did not affect the instrument's ability to calculate a subject's blood alcohol content. Later that same month, the defendant was given leave by this court to file in the District Court a motion for reconsideration of his motion to exclude the test results of the Draeger Alcotest; that motion was subsequently denied.

On December 8, 2017, the Supreme Judicial Court released Commonwealth v. Camblin, 478 Mass. 469 (2017) (Camblin II ). Camblin II affirmed the order, after remand, of the assigned justice denying the motion to exclude the test results of the Draeger Alcotest and upheld his rulings of law concerning the Draeger Alcotest's reliability and the admissibility of its test results.

As a result of Camblin I and Camblin II, the defendant in the present case filed an assented-to motion to waive oral argument. In that motion the defendant states that because "all the issues raised in his brief" have been addressed by the Supreme Judicial Court in Camblin I and Camblin II, he "feels it is in his best interest to waive oral argument ... and acknowledges that he received the full[ ] evidentiary hearing on his motion to exclude the [Draeger] Alcotest results to which he was entitled under Camblin I." Upon review, we agree. Accordingly, we affirm the judgment.

So ordered.

      The defendant was also found responsible for a marked lanes violation.


text:
    Alan Roy HOLLANDER v. David M. VERNICK & another.
    17-P-637
    Appeals Court of Massachusetts.
    Entered: May 24, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Vernick & Gopal LLC.

   The plaintiff, Alan Roy Hollander, appeals from a judgment of dismissal entered in the Superior Court. The defendants' motion to dismiss was allowed on the basis that the plaintiff was unable to prove the requisite elements of his medical malpractice claim due to his inability to introduce various medical publications in evidence. For the reasons set forth below, we affirm.

Background. The plaintiff, an attorney proceeding pro se, filed a medical malpractice action against the defendants on May 1, 2014. Based on our reading of the limited record before us, the plaintiff alleged that David M. Vernick (defendant) was negligent in failing to timely diagnose an acoustic neuroma in his right ear. The plaintiff moved in limine to admit various medical publications, including articles found on the Internet, in evidence to prove the standard of care the defendant was required to exercise in treating the plaintiff and the defendant's breach of that duty. The plaintiff intended to rely solely on those publications to prove the elements of duty and breach; he sought to admit the publications via G. L. c. 233, § 79C, or, alternatively, G. L. c. 233, § 79B. In an attempt to comply with the evidentiary requirements of both statutes, the plaintiff informed the motion judge that he intended to introduce biographical information about the publication authors, including an undated curriculum vitae and printouts found on the Internet, indicating that the authors were board certified in otolaryngology or medical school professors. The plaintiff explicitly stated that he did not intend to introduce the medical publications through any other means, including the testimony of a witness.

The motion judge concluded that the plaintiff could not prove that the authors of the articles were "expert[s] on the subject," G. L. c. 233, § 79C, as appearing in St. 1965, c. 425, or that the documents were "commonly ... used and relied upon" by otolaryngologists, G. L. c. 233, § 79B, inserted by St. 1947, c. 385, § 1, via the biographical information of the authors alone. The motion judge then dismissed the case at the request of the defendants after concluding that the plaintiff could not prove the required elements of his case, given his intention to rely solely on the publications to prove the elements of duty and breach.

Discussion. 1. Statements of facts of general interest. The plaintiff first argues that the medical publications were admissible pursuant to the hearsay exception set forth in G. L. c. 233, § 79B. See Mass. G. Evid. § 803(17) (2018).

Before evidence may be admitted under G. L. c. 233, § 79B, the trial judge must first find that "the proposed exhibit is (1) issued to the public, (2) published for persons engaged in the applicable occupation, and (3) commonly used or relied on by such persons." Mazzaro v. Paul, 372 Mass. 645, 652 (1977). Here, the plaintiff sought to prove that the medical publications were commonly used or relied on by otolaryngologists by providing documentation that the authors of those publications were board certified otolaryngologists or medical school professors. As the motion judge properly concluded, the credentials of the authors do not speak to whether the publications are commonly used or relied on by otolaryngologists. As such, the evidence was properly excluded as it did not fall within the hearsay exception set forth in G. L. c. 233, § 79B.

2. Learned treatises. The plaintiff further argues that the medical publications were admissible under the learned treatise hearsay exception, G. L. c. 233, § 79C. See Mass. G. Evid. § 803(18)(A) (2018).

General Laws c. 233, § 79C, inserted by St. 1965, c. 425, provides, in pertinent part:

"Statements of facts or opinions on a subject of science or art contained in a published treatise, periodical, book or pamphlet shall, in so far as the court shall find that the said statements are relevant and that the writer of such statements is recognized in his profession or calling as an expert on the subject, be admissible in actions of contract or tort for malpractice, error or mistake against physicians, surgeons, dentists, optometrists, hospitals and sanitaria, as evidence tending to prove said facts or as opinion evidence."

The biographical information of the author of a medical publication alone cannot "serve as the basis of [a] judge's finding that the writer of a relevant statement in the text has the required professional standing." Reddington v. Clayman, 334 Mass. 244, 247 (1956). However, a party may use the testimony of an opponent witness to establish that the author of a publication is a recognized expert in a particular field. See Thomas v. Ellis, 329 Mass. 93, 98, 100 (1952).

Here, the plaintiff attempted to establish the expertise of the authors of the medical publications via documents containing the biographical information of the various publication authors. In doing so, the plaintiff failed to provide sufficient evidence to prove that the authors were recognized as experts on the subject. See Reddington, supra. When asked by the motion judge whether he intended to introduce the publications through a witness, the plaintiff replied that he did not intend to do so. Thus, although the plaintiff could have sought to introduce the publications via the testimony of the defendant, he explicitly indicated that he had no intention of doing so. The evidence was thus properly excluded.

Conclusion. As stated above, the plaintiff failed to meet the evidentiary requirements of both G. L. c. 233, § 79B, and G. L. c. 233, § 79C. The motion judge properly allowed the defendants' motion to dismiss on the basis that the exclusion of that evidence rendered the plaintiff unable to prove the elements of duty and breach in his medical malpractice action.

Judgment affirmed.

      The plaintiff did not provide this court with a copy of his complaint.

      The plaintiff failed to submit to this court copies of his motions in limine.


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    GREGORY B. JONES'S CASE.
    17-P-951
    Appeals Court of Massachusetts.
    Entered: May 24, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The employer NStar appeals from a decision of the reviewing board of the Department of Industrial Accidents (board), upholding an administrative law judge's determination that the claimant employee, Gregory Jones, contracted Lyme disease during his employment with NStar in 2006. NStar maintains two arguments on appeal: (1) that there was insufficient evidence to conclude that Jones contracted Lyme disease while he was working for NStar in 2006, and (2) that the board erred in awarding attorney's fees to Jones, pursuant to G. L. c. 152, § 13A(6). We affirm.

Background. Jones was employed by NStar from 2001 to 2007, and has been employed by National Grid since 2008. In 2006, Jones began feeling symptoms that mirrored those of Lyme disease. He tested positive for Lyme disease in August 2011, and on September 23, 2011, went on medical leave from National Grid. On July 22, 2012, after approximately one year of medication, Jones was able to return to work at National Grid.

A hearing was held before the administrative judge on December 10, 2013. The deposition of Dr. Siegel, as well as medical reports from Dr. Hicks, Dr. Donta, Dr. Brusch, and a registered nurse practitioner, Joan Romboli, were submitted as exhibits. The judge found that Jones contracted Lyme disease while he was working for NStar in 2006. In reaching this conclusion, the judge adopted portions of Dr. Siegel's expert opinion and Romboli's medical reports. The judge also adopted portions of Dr. Donta's opinion "with the proviso that [he] do[es] not accept any opinion [of Dr. Donta] that is based on a clinical history from [Jones] that attempts to move the goalposts of the onset of [Jones's] chronic Lyme disease to 2009 or later." The judge specifically found that Jones "was infected with Lyme disease during his employment with NStar and [that the Lyme disease ] remained latent until his employment with National Grid when it progressed-becoming causative of his incapacity for work and leave for medical treatment." The judge, thus, concluded that NStar is liable for Jones's personal injury. As such, the judge ordered that NStar reimburse National Grid for its disability payments to Jones; pay Jones "all of the medical expenses for treatment, diagnoses, rehab and study of his Lyme disease condition ... from 2006 through the present"; and pay Jones's legal counsel's fee of $9,000 plus necessary expenses pursuant to G. L. c. 152, § 13A(5).

The board affirmed the judge's decision as to the award of benefits, concluding that the judge's finding on causation was supported in the record, but vacated the award of legal counsel fees and recommitted that determination "for further findings on whether such a fee is due, and if so, in what amount." The board, pursuant to G. L. c. 152, § 13A(6), ordered that NStar pay Jones's legal counsel a fee of $1,618.19, because Jones "prevailed on NStar's cross appeal."

Discussion. We review a reviewing board's decision in accordance with the standards expressed in G. L. c. 30A, § 14(7)(a )-(d ), (f ), and (g ), as amended by St. 1991, c. 398, § 32A, which provides that a reviewing board's decision may only be set aside or modified if the decision is:

"(a ) In violation of constitutional provisions; or (b ) In excess of the statutory authority or jurisdiction of the agency; or (c ) Based on an error of law; or (d ) Made upon unlawful procedure; or ... (f ) Unwarranted by facts found by the court on the record as submitted or as amplified ... in those instances where the court is constitutionally required to make independent findings of fact; or (g ) Arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law."

See Scheffler's Case, 419 Mass. 251, 258 & n.4 (1994).

NStar maintains on appeal that the evidence was insufficient to conclude that Jones contracted Lyme disease while working for NStar in 2006. Specifically, NStar argues that the judge erred in crediting Dr. Siegel's testimony rather than that of Dr. Donta, which provided that Jones contracted Lyme disease at some point after 2009 while he was working for National Grid. We see no error in the judge adopting the opinion of Dr. Siegel rather than that of the other experts. An administrative judge is free "to accept the medical testimony of one expert and to discount that of another." Thompson v. Berkshire County Assoc. for Retarded Citizens, 20 Mass. Workers' Comp. Rep. 247, 251 (2006), quoting from Fitzgibbons's Case, 374 Mass. 633, 636 (1978).

Moreover, in addition to Dr. Siegel's expert opinion, the judge also relied on a series of medical reports from Romboli, which showed a progression of medical issues stemming from Jones's Lyme disease. These reports further corroborated that the onset of Jones's Lyme disease occurred around 2006 when he was working for NStar. The judge therefore concluded that any of the tick bites that Jones received during his employment with National Grid, which started in 2008, could not have contributed to his long-term Lyme disease symptoms. The administrative law judge's decision, and therefore the board's affirmance, rested upon sufficient evidence, valid findings, and was free of any arbitrariness or capriciousness.

NStar next argues that the board erred in awarding attorney's fees to Jones, pursuant to G. L. c. 152, § 13A(6), because NStar did not cross-appeal, agree to a settlement, or "seek to set aside the benefits ordered to be paid to [Jones] but only that National Grid should pay them."

General Laws c. 152, § 13A(6), as appearing in St. 1991, c. 398, § 35, provides that

"[w]henever an insurer appeals a decision of an administrative judge and the employee prevails in the decision of the reviewing board, the insurer shall pay a fee to the employee's attorney in the amount of one thousand dollars, plus necessary expenses. An administrative judge may increase or decrease such fee based on the complexity of the dispute or the effort expended by the attorney."

NStar relies on the wrong provision in the statute, i.e., § 13A(8)(b ), in asserting that the board erred in awarding attorney's fees. Applying the correct provision, i.e., § 13A(6), we see no error in the board's decision to award attorney's fees to Jones's counsel, as Jones prevailed in NStar's appeal to the board. We have considered NStar's remaining arguments and find no reason to disturb the board's decision.

Decision of reviewing board affirmed.

      The board specifically found that "even in the face of a negative test, the other facts pointed to [Jones's] Lyme disease stemming from exposure while at NStar. This is sufficient support for the ultimate finding of a causal relationship."

      General Laws c. 152, § 13A(8)(b ), as appearing in St. 1991, c. 398, § 35, provides:
      "Whenever an insurer and an employee agree to a settlement under section forty-eight, the attorney's fee shall be paid from the settlement in accordance with the following provisions:
      "...
      "(b ) when the insurer and the employee reach such settlement subsequent to insurer acceptance of liability or subsequent to a decision of an administrative judge, the reviewing board, or the appeals court of the commonwealth finding insurer liability which is in effect at the time such agreement is entered into, such fee shall be no more than twenty percent of amount of such settlement."


text:
    COMMONWEALTH v. John C. GOULDING.
    17-P-1251
    Appeals Court of Massachusetts.
    Entered: May 24, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury-waived trial in the Superior Court, the defendant, John Goulding, was convicted of trafficking in heroin, 200 grams or more, in violation of G. L. c. 94C, § 32E(c ). On appeal, he contends that he did not possess the requisite intent to distribute heroin, and that he should not have received a mandatory minimum sentence. We affirm.

The judge comprehensively summarized his findings on the record. The facts are not in dispute on appeal and need not be repeated here.

We first address the defendant's claim that he did not possess the intent to distribute heroin. As part of this claim, he contends that: (1) he depended on Geoffrey Chandler, the leader and orchestrator of the heroin trafficking operation at issue in this case, for work and, thus, could not refuse to assist him; (2) it would have been "unsafe" to refuse to assist in this case, given the narcotics trade in which Chandler and his associates engaged; (3) he was merely a passenger in a vehicle involved in the drug operation and had no means to escape; and (4) Chandler's mother helped raise him from an early age, and he thus felt obligated to assist him. The claims are unavailing.

Here, the evidence, viewed in the light most favorable to the prosecution, was sufficient to prove beyond a reasonable doubt that the defendant was a joint venturer to heroin trafficking. "[T]o prove the defendant guilty as a joint venturer, the Commonwealth was required to prove that he was present at the scene of the crime, had knowledge that another intended to commit the crime and shared the intent to commit the crime, and by agreement was willing and available to help the other if necessary." Commonwealth v. Hernandez, 439 Mass. 688, 694 (2003). The evidence in the present case establishing those three elements was overwhelming.

The defendant was present during the commission of the offense. He was visibly nervous and sweating profusely during the motor vehicle stop and was caught holding a block of heroin inside the front waistband of his pants. The heroin was wrapped in green cellophane, weighed 257.77 grams, and had an approximate street value of at least $25,000. When the police located the heroin, the defendant blurted out, "I'm fucked. My life is ruined. I'm going to prison forever." Asked where he got the drugs, the defendant responded, "You know where I got it from." Asked what the item was, he responded, "You know what the stuff is." In view of the large amount of heroin, the defendant's nervous demeanor, the concealing of the drugs in his waistband, and the statements that could be viewed as admissions, we have no difficulty in determining that the evidence was sufficient to prove all of the elements of trafficking in heroin by means of joint venture. See Commonwealth v. Pratt, 407 Mass. 647, 653 (1990) ; Commonwealth v. Roman, 414 Mass. 642, 645 (1993). In addition, the evidence that the defendant had acted as one of Chandler's "holders" in the past, further demonstrated his knowledge and intent to assist in the commission of the crime in the present case.

The defendant also argues that he should not have received the minimum mandatory State prison sentence imposed in this case. The defendant concedes that the judge would have erred in imposing a sentence less than the minimum mandatory sentence required by statute. Nonetheless, he asks this court to vacate or reduce his sentence in the interest of justice, because he had never been arrested on a narcotics charge or previously incarcerated. This we cannot do. See Commonwealth v. Ehiabhi, 478 Mass. 154, 161 (2017) (error for judge not to sentence defendant pursuant to statutes under which he was properly charged and convicted).

Judgment affirmed.

      The arguments raised in the defendant's brief are presented pursuant to Commonwealth v. Moffett, 383 Mass. 201, 208 (1981).

      The defendant did not squarely raise any of these intent-related arguments at trial. Instead, the defense centered on the issue of the claimed inability to exercise dominion and control over the heroin. Nonetheless, we briefly address the intent claim under the familiar Latimore standard. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).


text:
    COMMONWEALTH v. Lawrence ZINSER.
    17-P-383
    Appeals Court of Massachusetts.
    Entered: May 23, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant appeals from an order by the trial judge denying his second motion for new trial. He raises three arguments on appeal, contending that it was an abuse of discretion to deny his motion where: (1) the defendant was unlawfully absent from a pretrial conference; (2) the evidence was insufficient to support a conviction for assault with intent to kill; and (3) the Supreme Judicial Court and this court incorrectly described the incident between the defendant and the victims. We affirm.

We review the denial of a motion for new trial for abuse of discretion. Commonwealth v. Acevedo, 446 Mass. 435, 441-442 (2006). "Reversal for abuse of discretion is particularly rare where[, as here,] the judge acting on the motion was also the trial judge." Ibid., quoting from Commonwealth v. Lucien, 440 Mass. 658, 670 (2004). The defendant's arguments were not raised in his direct appeal or his first motion for new trial and, thus, are waived. See Mass.R.Crim.P. 30(c)(2), 378 Mass. 901 (1979). Waiver, however, does not mean that the issue is precluded, but rather that the claims are reviewed for a substantial risk of a miscarriage of justice. Commonwealth v. Randolph, 438 Mass. 290, 293, 296 (2002). An analysis under the substantial risk standard begins with a determination of whether or not there was an error. Id. at 297-298.

First, the defendant argues that he was unlawfully absent from the March 31, 1997, pretrial conference. The only evidence that the defendant was not present at the pretrial conference is his own self-serving affidavit, which the judge was free to reject as "not credible." Commonwealth v. McWilliams, 473 Mass. 606, 621 (2016). Even if the defendant was absent, only the prosecutor and the defense attorney are required to attend a pretrial conference. See Mass.R.Crim.P. 11(a), as appearing in 442 Mass. 1509 (2004) ("[T]he court shall order the prosecuting attorney and defense counsel to attend a pretrial conference" but the defendant needs only to be "available" to attend). "A defendant need not be present ... at any proceeding where evidence is not to be taken." Mass.R.Crim.P. 18(a)(3), 378 Mass. 888 (1979). See Robinson v. Commonwealth, 445 Mass. 280, 285-286 (2005), quoting from Mass.R.Crim.P. 18(a) ("[C]riminal defendants shall have the right to be present 'at all critical stages' of court proceedings"). There is no indication that evidence was taken at the pretrial conference.

Next, the defendant argues that the evidence was insufficient to support a conviction for assault with intent to kill. Viewing the evidence, and the reasonable inferences that can be drawn from it, in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), there was sufficient evidence. "The elements of assault with intent to kill are assault, specific intent to kill, and [a] mitigating factor" (emphasis omitted). Commonwealth v. Vick, 454 Mass. 418, 428-429 (2009) (quotation omitted). When the unarmed victim ran at the defendant, the defendant responded by attacking the victim with a knife. In doing so, the defendant caused severe injuries to the victim. The extent of the victim's injuries coupled with the defendant's decision to attack the victim, rather than to get into his car, could lead a reasonable jury to conclude he intended to kill the victim once the victim ran toward him.

Finally, the defendant argues that the Supreme Judicial Court and this court incorrectly described the incident between the defendant and the victims as the victims confronting the defendant, rather than assaulting him. Even assuming this description is incorrect, the defendant's failure to petition for rehearing under Mass.R.A.P. 27, as amended, 410 Mass. 1602 (1991), to correct any factual error precludes him from raising the claim now. See Commonwealth v. Hanlon, 44 Mass. App. Ct. 810, 813-814 (1998).

The defendant's motion was properly denied.

Order entered February 23, 2017, denying motion for postconviction relief affirmed.

      The defendant also argues that it was prosecutorial misconduct for the Commonwealth to charge him with armed assault with intent to murder. On direct appeal, the defendant's argument that he was overcharged was rejected. See Commonwealth v. Zinser, 51 Mass. App. Ct. 1105 (2001). He is therefore precluded from raising the issue again. See Commonwealth v. Williams, 431 Mass. 71, 74 (2000).


text:
    M.M. v. J.M.
    17-P-1396
    Appeals Court of Massachusetts.
    Entered: May 23, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, J.M., appeals from an order issued against her pursuant to G. L. c. 209A as well as the order denying her motion to vacate that order. She contends that (1) there was insufficient evidence to support the 209A order, and (2) the District Court judge violated her due process rights by failing to provide her with a meaningful opportunity to challenge the plaintiff's evidence. We affirm.

There are two substantial procedural defects in this case that preclude our evaluation of the merits of the defendant's claims. First, the defendant has failed to provide us with an adequate appellate record, as is her burden. See Mass.R.A.P. 18(a), as amended, 425 Mass. 1602 (1997). In particular, we note the absence of a transcript from the hearing after notice. Without such a transcript, we can neither weigh the sufficiency of the evidence against the defendant, nor evaluate the adequacy of the process she received in the lower court. See Shawmut Community Bank, N.A. v. Zagami, 30 Mass. App. Ct. 371, 372-373 (1991), S.C., 411 Mass. 807 (1992) ("It is the obligation of the appellants to include in the appendix those parts of the [lower court proceedings] ... which are essential for review of the issues raised on appeal"); Cameron v. Carelli, 39 Mass. App. Ct. 81, 84 (1995) (lacking an adequate transcript, "we are unable to address the issue of the sufficiency of the evidence"). Second, as far as we can tell, the defendant failed to make her due process argument in the District Court and, therefore, it is not properly before us on appeal. See NES Rentals v. Maine Drilling & Blasting, Inc., 465 Mass. 856, 860 n.8 (2013) (argument raised for first time on appeal is waived).

Notwithstanding the procedural shortcomings in the appellate record, we have reviewed the limited record before us. Discerning no error therein, we affirm.

Order entered September 12, 2017, affirmed.

Order denying motion to vacate affirmed.

      Additionally, without appropriate record citation, the defendant's claims amount to "bald assertions of error" and thus do not rise to the level of appellate argument required by Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). Kellogg v. Board of Registration in Med., 461 Mass. 1001, 1003 (2011) (citation omitted).

      This argument was not mentioned in the motion to vacate, and because we have no transcript from the hearing after notice, we cannot discern whether it was properly preserved there. See Davis v. Tabachnick, 425 Mass. 1010, 1010 (1997) ("[W]e shall not address the merits of the plaintiffs' claims because there is nothing in the record before us that indicates that those claims were adequately raised and preserved").

      We deny the defendant's request for appellate attorney's fees.


text:
    P.M. v. J.M.
    17-P-1026
    Appeals Court of Massachusetts.
    Entered: May 23, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, J.M., appeals from a series of Probate and Family Court judgments and orders entered subsequent to a judgment of divorce nisi. Specifically, she noticed appeals from (1) a contempt judgment entered on March 6, 2017 (the March 6 judgment); (2) eleven orders on various motions, all entered on March 22, 2017 (the March 22 orders); and (3) a contempt judgment dated April 3, 2017 (the April 3 judgment). Discerning no error on the record before us, we affirm.

Initially, we need not address the underlying merits of the April 3 judgment. Although the defendant mentioned this judgment in the facts section of her brief, she failed to address it as part of her argument and, therefore, we consider it no further. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975) ("The appellate court need not pass upon questions or issues not argued in the brief"). See Abate v. Fremont Inv. & Loan, 470 Mass. 821, 833 (2015) ("[F]ailure to address this issue on appeal waives [an appellant's] right to appellate review of the judge's ruling on the merits"); Hutchinson v. Hutchinson, 6 Mass. App. Ct. 705, 711 (1978) ("[P]assing reference to the issue" is not argument).

To the extent the defendant argues that the probate judge erred with regard to the March 6 judgment and the March 22 orders, she has failed to provide us with an adequate record to support her claims. It is an appellant's burden to provide this court with a sufficient appellate record. See Mass.R.A.P. 18(a), as amended, 425 Mass. 1602 (1997). See also Rothman v. Trister, 450 Mass. 1034, 1034 (2008) (pro se litigants are "bound to comply with the governing court rules"). Here, the defendant has failed to produce, among other things, any hearing or trial transcripts or statements of evidence presented. Accordingly, we are unable to conduct a meaningful review of her claims. See Shawmut Community Bank, N.A. v. Zagami, 30 Mass. App. Ct. 371, 372-373 (1991), S.C., 411 Mass. 807 (1992).

Nonetheless, we have undertaken such independent review as the record before us permits. No error appearing, we affirm.

March 6, 2017, judgment affirmed.

Orders entered March 22, 2017, affirmed.

April 3, 2017, judgment affirmed.

      The defendant's March 24, 2017, notice of appeal, which we read as designating appeals from the March 6 judgment and the March 22 orders, was appended to her brief. Given that this notice was neither entered on the trial court docket, nor identified in the assembly of the record, it is unclear whether the judgment and orders to which it refers are properly before us. However, no party has raised an objection to the propriety of this appeal and, therefore, we consider the defendant's arguments as to those matters. See Sniffin v. Prudential Ins. Co. of America, 395 Mass. 415, 420 n.10 (1985).

      Moreover, even if we had a sufficient record, the defendant's claims-consisting of generalized factual assertions unsupported by the record, and legal conclusions unsupported by adequate legal authority-do not rise to the level of appellate argument. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). See also K.A. v. T.R., 86 Mass. App. Ct. 554, 567 (2014).

      We deny the defendant's request for appellate attorney's fees.


text:
    COMMONWEALTH v. Lynda MORTON.
    17-P-169
    Appeals Court of Massachusetts.
    Entered: May 30, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After being convicted of operating under the influence of alcohol (OUI), the defendant brought a motion for a new trial, asserting that her trial counsel was ineffective. That motion was denied following an evidentiary hearing, a decision the defendant now appeals. We affirm.

Background. On August 17, 2012, at approximately 11 P.M. , a Wrentham police officer observed the defendant in her vehicle parked in the wrong direction on a major road in Wrentham. The officer approached the defendant, who said that she was having car trouble and was trying to contact her husband. The defendant was advised to move her vehicle to a safer spot, and the officer returned to his vehicle and began to drive away. As he drove past the defendant's vehicle, the officer noticed, for the first time, damage to the front right side of the vehicle. While the officer was turning around to return to the police station, he saw the defendant drive her vehicle, without headlights on, over a curb, across a lawn, and into the parking lot of a nearby apartment complex.

At this point, the police officer approached the defendant again and requested her license and registration. While still seated in the vehicle, the defendant told the officer she was on the telephone and to hold on. The officer then noticed that her speech was slurred. After the call ended, the officer again asked for her license and registration at which time he detected a strong odor of alcohol and noticed that the defendant's eyes were glassy and bloodshot. As a result, the officer asked her to perform three field sobriety tests, two of which she was unable to successfully perform and the third she refused. She informed the officer that she had been drinking at an establishment in Foxboro, where she had been in a minor car accident. The officer placed her under arrest.

Following her conviction, the defendant filed a motion for a new trial, alleging that her trial counsel was ineffective. The motion was denied by the same judge who conducted the trial. On appeal, the defendant asserts the following deficiencies in her counsel's representation: he only met with her for ten minutes before the trial date; he was unprepared for trial on the trial date; he did not file a motion to suppress her statement that she had been in a motor vehicle accident; he failed to specifically challenge, through a motion to dismiss or motion for a required finding of not guilty, whether the Commonwealth could prove that the defendant operated the vehicle; and he failed to contact three potential witnesses who would have testified that she was not under the influence of alcohol on the night in question. Notably, the defendant failed to submit an affidavit from trial counsel, and she was the only person to testify at the hearing on her motion for a new trial.

Discussion. On review of the defendant's motion for a new trial, we must "determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Grace, 397 Mass. 303, 307 (1986). When the motion judge was also the trial judge, as in the present case, we afford "special deference" to the judge's ruling. Commonwealth v. Fappiano, 69 Mass. App. Ct. 727, 730 (2007), quoting from Commonwealth v. Buck, 64 Mass. App. Ct. 760, 762 (2005). When the basis for a motion for a new trial is ineffective assistance of counsel, we first determine whether the defendant has demonstrated "serious incompetency, inefficiency, or inattention of counsel-behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). If that is found, we must then determine whether counsel's performance "likely deprived the defendant of an otherwise available, substantial ground of defence." Ibid. As we conclude that the defendant did not establish that her trial counsel's performance fell measurably below that of an ordinary fallible lawyer, we need not reach the second inquiry.

The defendant did not produce an affidavit from her trial counsel or any additional witnesses at the motion hearing. As a result the judge was limited to the defendant's self-serving testimony and was free to "draw a negative inference ... that there is no affidavit from counsel because a truthful affidavit would not assist the defendant." Commonwealth v. Martinez, 86 Mass. App. Ct. 545, 551 (2014). In denying the defendant's motion, the judge found that her "testimony alone does not provide this court with sufficient credible evidence that warrants the court's vacating her conviction by a jury of her peers and granting her a new trial."

Regarding the defendant's contention that trial counsel should have raised various motions, including a motion to suppress a statement made by the defendant and a motion to dismiss for lack of evidence to support the operation prong of an OUI charge, we conclude that she failed to demonstrate that either motion would have had any force. Counsel is under no obligation to raise a motion that had no likelihood of success. See Commonwealth v. Comita, 441 Mass. 86, 91 (2004).

As to the defendant's remaining claims, we defer to the judgment of the motion judge. See Fappiano, supra. Beyond the absence of an affidavit from trial counsel, the defendant failed to produce any of the witnesses whose absence she claimed prejudiced her at trial. We conclude, therefore, that the judge's determination that the defendant's testimony alone did not establish that any of trial counsel's actions fell measurably below the actions of an ordinary fallible lawyer was not an abuse of discretion. See Commonwealth v. Beaulieu, 90 Mass. App. Ct. 773, 781 (2016), quoting from Commonwealth v. McCormick, 48 Mass. App. Ct. 106, 108 (1999) ("[W]e are unable to determine whether 'defense counsel's asserted failures may in fact have been the considered product of a tactical decision' ").

Order denying motion for new trial affirmed.


text:
    William F. READE, Jr. v. SECRETARY OF the COMMONWEALTH & another.
    17-P-304
    Appeals Court of Massachusetts.
    Entered: May 30, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Attorney General.

   The plaintiff appeals from the dismissal of his complaint. The plaintiff filed suit against the defendants after the Secretary of the Commonwealth did not conduct an investigation into the plaintiff's concerns regarding Barack Obama's legal qualifications to run for President in 2012, and the Attorney General did not investigate the Secretary of the Commonwealth's inaction. The plaintiff's appeal fails for two reasons.

First, the plaintiff has not made an argument that rises to the level of an appellate argument within the meaning of Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). An appellate brief must "contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on." Mass.R.A.P. 16(a)(4). "Briefs that limit themselves to bald assertions of error that lack[ ] legal argument ... [do not] rise[ ] to the level of appellate argument required by rule 16." Kellogg v. Board of Registration in Med., 461 Mass. 1001, 1003 (2011) (quotations omitted). The plaintiff does not support his claims with relevant facts, sufficient legal argument, or supporting legal authority. Although the plaintiff is a pro se litigant, his noncompliance with the rules of appellate procedure is not excused because he "is held to the same standards as litigants who are represented by counsel." Maza v. Commonwealth, 423 Mass. 1006, 1006 (1996).

Second, to the extent that the plaintiff seeks reinstatement of his complaint, the complaint was properly dismissed. The plaintiff does not have standing because he has not suffered nor is he in danger of suffering any legal harm from the lack of investigation. Tax Equity Alliance for Mass. v. Commissioner of Rev., 423 Mass. 708, 714-715 (1996). Even if the plaintiff had standing, the statutory sections he relies on, G. L. c. 55B, §§ 4 and 5, do not require the defendants to investigate the plaintiff's claim and, as such, the defendants cannot be compelled to do so. See Anzalone v. Administrative Office of the Trial Ct., 457 Mass. 647, 655 (2010) (writ of mandamus cannot be used to compel discretionary acts). Nor do the statutory sections provide for a private cause of action by persons not acting on behalf of candidates if there is no investigation. See G. L. c. 55B, §§ 4 - 5. See also Sullivan v. Chief Justice for Admin. & Mgmt. of the Trial Ct., 448 Mass. 15, 38 (2006) ("[A] clear legislative intent is necessary to infer a private cause of action from a statute" [citation omitted] ).

Judgment affirmed.

Order denying motion for reconsideration affirmed.

      He also noticed an appeal from the order denying his motion for reconsideration.

      Appellate briefs must also have a table of contents; a table of cases, statutes, and other authorities cited; a statement of the issues the party presents for review; a statement of the case detailing the procedural history; and a statement of the relevant facts. Mass.R.A.P. 16(a)(1-3), as amended, 428 Mass. 1603 (1999). None of these are present in the plaintiff's brief.


text:
    COMMONWEALTH v. Jose AVELINO.
    17-P-370
    Appeals Court of Massachusetts.
    Entered: May 30, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Jose Avelino, was convicted of one charge of assault and battery by means of a dangerous weapon (motor vehicle) and one charge of violating an abuse prevention order. The defendant argues on appeal that the trial judge erred in denying the defendant's request for a curative instruction following the prosecutor's closing argument. We affirm.

Background. We summarize the facts as the jury could have found them. The victim was married to, but separated from, the defendant. The victim had a restraining order against the defendant that was in effect on October 16, 2013. On that date, the victim was driving in her vehicle with a work colleague. The victim observed that it was "at the time that the kids were coming out of school." The victim noticed the defendant's vehicle ahead of hers, with two other vehicles separating them. The defendant "kept looking ... at [the victim] through the mirror," and the victim feared that the defendant "might do something." When there were no longer other vehicles between them, the defendant sped forward, applied his breaks, and then drove backwards and hit the victim's vehicle. Both the defendant and the victim exited their vehicles, and the defendant told the victim that he was going to call the police and report that the victim hit the defendant's vehicle because she was behind him. The victim responded that she was sure that "there'll be somebody that saw that you're the one that hit me and not me hit you," as she had observed that there were "a lot" of people on the street.

The defendant testified in his own defense that the victim hit his car, that he was looking in the mirror to see his surroundings while driving, and that he realized that the victim was in the other vehicle only when he exited his vehicle after the collision.

No other witnesses testified. Before closing arguments, defense counsel informed the judge that he would not request a missing witness instruction but that he would argue to the jury that the Commonwealth failed to produce sufficient evidence to convict the defendant, noting that other individuals who were described on the scene did not testify at trial. The prosecutor "[had] no problem with that." Defense counsel argued to the jury that the Commonwealth did not corroborate the victim's testimony with testimony from the colleague, school children, or police.

The prosecutor then argued in his closing argument, in relevant part, that "there was no evidence in this trial that any of the other people who were around that day were available to come in and testify as witnesses today."

Discussion. The defendant argues that the convictions must be reversed because the prosecutor shifted the burden of proof to the defendant and the judge failed to give a curative instruction following the closing argument. We disagree.

As an initial matter, we note that it was permissible for defense counsel to argue that no other potential witnesses testified and corroborated the victim's testimony and the Commonwealth had not produced sufficient evidence to warrant a conviction beyond a reasonable doubt. See Commonwealth v. Saletino, 449 Mass. 657, 672 (2007). While the prosecutor's remark in response is the type of statement to avoid, it was not prejudicial. "Remarks made during closing arguments are considered in the context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury." Commonwealth v. Whitman, 453 Mass. 331, 343 (2009).

In the entirety of the Commonwealth's closing argument, the prosecutor permissibly asked the jury to consider the credibility of each witness and their testimony. The prosecutor acknowledged that neither witness's testimony was corroborated, but that the lack of corroboration itself did not make either more or less credible than had there been corroboration. The prosecutor did not, however, state how any other potential witness would have testified. The prosecutor's request that the jury consider the credibility of each witness based on their respective testimony did not shift the burden.

Furthermore, the judge's instructions to the jury adequately cured any prejudice. The judge instructed the jury on the Commonwealth's burden of proof at the beginning of trial and in the final instructions, and instructed the jury that closing arguments were not evidence and that the jury should decide the facts "solely from the evidence admitted in this case and not from suspicion or conjecture." See Commonwealth v. Tu Trinh, 458 Mass. 776, 788 (2011). "We presume that a jury follow all instructions given to it." Commonwealth v. Watkins, 425 Mass. 830, 840 (1997). In context of the entirety of the short trial, there was no error in the judge's decision not to give a curative instruction following the prosecutor's closing argument where the other instructions were sufficient.

Judgments affirmed.

      At the request of the Commonwealth, a second assault and battery by means of a dangerous weapon charge was dismissed before trial.

      On direct examination, the prosecutor asked the victim if the victim knew where her colleague was on the day of trial. The judge sustained the defendant's objection to the question.

      After the prosecutor's closing argument, there was an inaudible sidebar discussion. After trial, the attorneys stipulated that "after the Commonwealth's closing and at the defendant's request, counsel went to sidebar .... At the sidebar conference defendant objected to and requested a curative instruction concerning the Commonwealth's statement in closing to the effect that '... there was no evidence in this trial that any of the other people who were around that day were available to come in and testify as witnesses today.'... The judge denied defendant's request." The trial judge allowed the stipulation, stating that "[t]he Court has no independent memory of the content of the sidebar discussion. Nevertheless, the Court does not have reason to doubt the joint recollection of the attorneys, and therefore the stipulation may be included in the record on appeal." The objection, as stipulated to by the parties, sufficiently preserved the issue for appeal.


text:
    COMMONWEALTH v. Eugene C. BERTINI.
    17-P-412
    Appeals Court of Massachusetts.
    Entered: May 30, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Eugene C. Bertini, appeals from an order of the District Court denying his three motions for new trial pursuant to Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2009). The defendant was adjudicated a delinquent child and was committed to the Department of Youth Services (the department) until he was eighteen years old. As such, the defendant argues that the Juvenile Court retained jurisdiction over him and that the District Court therefore lacked jurisdiction to prosecute him for subsequent criminal offenses. We disagree and affirm the motion judge's order denying the defendant's motions for new trial.

Background. The defendant was born in June, 1973. In November, 1986, he was adjudicated delinquent and placed on one year's probation. In January, 1987, the defendant was committed to the department until he was eighteen years old. In March of 1990, when he was sixteen years old, the defendant was charged with abandoning a motor vehicle. Later in 1990, when the defendant was seventeen years old, he was charged by separate complaints with leaving the scene of an accident causing property damage and being a disorderly person.

On August 28, 1990, the charge of abandoning a motor vehicle was "dismissed at the request of the complainant with the consent of the defendant." On October 4, 1990, the defendant admitted to facts sufficient to prove the crime of leaving the scene of an accident causing property damage and the case was continued without a finding; the District Court subsequently converted the disposition to a guilty finding on November 26, 1990. Also on November 26, 1990, the defendant pleaded guilty to the disorderly person charge.

Twenty-six years later, in August, 2016, the defendant filed three motions pursuant to Mass.R.Crim.P. 30(b), arguing that the District Court lacked subject matter jurisdiction for each charge because the defendant was previously adjudicated a delinquent child, committed to the department, and remained exclusively under the jurisdiction of the Juvenile Court. The defendant also argued that he was deprived of a transfer hearing pursuant to G. L. c. 119, § 61 (now repealed). See St. 1990, c. 267, § 3, for text of statute prior to repeal. Following a hearing, the motion judge denied the defendant's motions.

Discussion. We review the denial of the defendant's motions filed pursuant to Mass.R.Crim.P. 30(b)"to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Grace, 397 Mass. 303, 307 (1986).

As an initial matter, the defendant's motion for a new trial on the charge of abandoning a motor vehicle is moot because the complaint was dismissed. We therefore consider only the defendant's two remaining motions.

At the time of the defendant's offenses, a "delinquent child" was defined as "a child between seven and seventeen who violates any city ordinance or town by-law or who commits any offence against a law of the commonwealth" (emphasis added). G. L. c. 119, § 52, as amended through St. 1960, c. 353, § 1. The defendant relies on G. L. c. 119, § 58, as amended through St. 1973, c. 925, § 42, which provided at the time that a delinquent child may be committed to the department "until such child becomes eighteen." The defendant maintains that, because he was adjudicated as a delinquent child, placed on probation, and committed to the department's custody, the Juvenile Court retained jurisdiction over him for all subsequent offenses until he turned eighteen years old. We disagree.

The Juvenile Court did not maintain jurisdiction over the defendant for all subsequent offenses until he reached eighteen years of age. See Elliot v. Commonwealth, 478 Mass. 1017, 1018 (2018) (although defendant was committed to department at time of subsequent offense, "[b]ecause a seventeen year old was not, at the time, considered a 'child,' the Juvenile Court did not have jurisdiction over the matter"). The Juvenile Court retained jurisdiction over the defendant only for matters pertaining to his 1986 offense-an offense that occurred before he turned seventeen-and resulted in the Juvenile Court placing him on probation and in the department's custody. At the time of the defendant's offenses at issue here, the District Court maintained original jurisdiction over all other misdemeanor offenses, "complaint of which shall be brought in the division of the district court department" wherein the offense allegedly occurred. G. L. c. 218, § 26, as amended by St. 1978, c. 478, § 187. The motion judge concluded, and we agree, that "[t]he defendant was seventeen years old at the time he was charged in the Woburn District Court" for the offenses at issue here and, "[t]herefore, under the statute in effect at the time, he was an adult for purposes of jurisdiction."

Because we hold that the District Court had jurisdiction over the then seventeen year old defendant, we need not address the defendant's argument regarding a transfer hearing pursuant to G. L. c. 119, § 61. Other arguments raised by the defendant "have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).

Order denying defendant's motions for new trial affirmed.

      The defendant's motions were each labeled "Defendant's motion pursuant to Mass.R.Crim.P. 30 [b] to vacate [the disposition] for lack of subject matter jurisdiction." A motion filed pursuant to Mass.R.Crim.P. 30(b) is a motion for a new trial.

      Nevertheless, as a panel of this court ruled in a separate appeal involving the defendant where he raised similar arguments, we note that the Commonwealth was not required, pursuant to the statute, to request a transfer hearing before proceeding with misdemeanor charges against the defendant in District Court. See Commonwealth v. Bertini, 90 Mass. App. Ct. 1116 (2016).


text:
    COMMONWEALTH v. Jessey L. DEITNER.
    17-P-634
    Appeals Court of Massachusetts.
    Entered: May 30, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   By the Court (Milkey, Hanlon & Singh, JJ. )

On June 6, 2012, Jane Doe obtained an ex parte abuse prevention order against the defendant pursuant to G. L. c. 209A. That order, inter alia, prohibited the defendant from contacting Doe, and it required him to stay one hundred yards from her. On June 19, 2012, the order was extended for one year, and on June 18, 2013, it was extended for an additional ten years (expiring on May 15, 2023). No timely appeal of the original issuance of the order or of its extensions was ever taken.

Based on an incident that occurred on October 4, 2015, a District Court jury convicted the defendant of violating the order. On appeal, the defendant seeks to vacate that conviction by arguing that the order and its extensions never should have issued. The defendant waived his right to appeal the issuance of the order and its extensions, and cannot collaterally attack the order in a case enforcing that order. See Commonwealth v. Marrero, 85 Mass. App. Ct. 911, 912 (2014) ("As a general rule the defendant does not have the option to act in violation of a court order and then, in a subsequent criminal proceeding, assert as a defense that the order should not have been issued"). See also Mohamad v. Kavlakian, 69 Mass. App. Ct. 261, 264 (2007) ("Even if erroneous, a court order must be obeyed").

None of this is to suggest that we discern any merit in the defendant's argument that the order improperly was issued or extended. To the contrary, the facts regarding the October 4, 2015, incident appear to reinforce the need and appropriateness of the underlying order.

Judgment affirmed.

      The panelists are listed in order of seniority.

      A pseudonym.

      Doe testified that at an outdoor parade that day, the defendant was looking at her and her family while standing about sixty feet away. Then, according to Doe, after she and her husband had left the parade and went to an American Legion hall, the defendant entered the hall, made eye contact with her, walked directly past her, then immediately returned and approached her and her husband, and invited them to "take it outside."

      Indeed, even where the person subject to a court order claims it is invalid on First Amendment to the United States Constitution grounds, he generally can be prosecuted for a violation of the order regardless of its validity. See Matterof Providence Journal Co., 820 F.2d 1342, 1346-1347 (1st Cir. 1986), cert. dismissed, 485 U.S. 693 (1988).


text:
    Jeanette L. BLAKE & another v. BAY STATE HOME LOAN GROUP, LLC.
    17-P-264
    Appeals Court of Massachusetts.
    Entered: May 29, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Maxwell A. Blake.

      Formerly known as Bay State Realty Solutions, LLC.

   In January of 2014, Jeannette and Maxwell Blake (the Blakes) brought a try title claim in the Land Court pursuant to G. L. c. 240, §§ 1 - 5, challenging the validity of Bay State Home Loan Group, LLC's (Bay State), status as a mortgagee authorized to foreclose on their property in Boston. In response, Bay State brought a counterclaim seeking a declaratory judgment to confirm its status as a mortgagee with the statutory power of sale. The Blakes did not file an answer or otherwise respond to Bay State's counterclaim. Instead, in August of 2015, the Blakes moved to voluntarily dismiss their petition pursuant to Mass.R.Civ.P. 41, 365 Mass. 803 (1974). They argued that in light of the decision in Abate v. Fremont Inv. & Loan, 470 Mass. 821 (2015), they could not maintain their preforeclosure action to try title, as the Land Court had no jurisdiction over the matter at that time. Bay State opposed the Blakes' motion.

The judge granted the Blakes' motion in part, dismissing their try title claim but retaining jurisdiction over Bay State's counterclaim for declaratory judgment, citing Mass.R.Civ.P. 41(a)(2) ("If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's objection"). The Blakes now contend that the judge erred in doing so, arguing that the use of the word "petition" instead of "complaint" in G. L. c. 240 indicates that the rules of civil procedure do not apply to try title actions.

Discussion. In Abate, supra at 834, the Supreme Judicial Court held that an action to try title brought prior to a foreclosure sale taking place cannot stand due to a court's lack of subject matter jurisdiction. This is because one of the jurisdictional elements that a petitioner must allege when bringing a try title claim-that of an actual or possible adverse claim on the subject property-is not satisfied until a foreclosure sale occurs; prior to a foreclosure sale, a mortgagor and a mortgagee hold "complimentary claims of title," and stand in "equipoise." Ibid. Here, the Blakes filed their try title petition two days before the scheduled foreclosure auction. Thus, under Abate, their try title action could not stand, and the judge correctly dismissed it.

However, as the judge noted, the Blakes' position that the rules of civil procedure do not apply to try title actions and, as a result, that the judge should have dismissed Bay State's counterclaim, is plainly contradicted not only by rule 41, but also by Abate and Bevilacqua v. Rodriguez, 460 Mass. 762 (2011), which both analyze actions to try title under Mass.R.Civ.P. 12, 365 Mass. 754 (1974). See Bevilacqua, supra at 764-765; Abate, supra at 829-830. Thus, while Abate mandates the dismissal of the Blakes' premature try title petition, it does not require the dismissal of Bay State's counterclaim as well. This is because "[a] counterclaim in an answer constitutes a separate and distinct cause of action. Thus, a defendant is entitled to a determination of [its] counterclaim even though there is a dismissal or a discontinuance of the original bill of complaint (or petition)." New England Merchs. Natl. Bank of Boston v. Kann, 363 Mass. 425, 427 n.2 (1973). Therefore, the judge did not err in refusing to dismiss Bay State's counterclaim.

We are also mindful of the purpose of a try title petition, which is to enable a plaintiff who meets the jurisdictional prerequisites to require an adverse claimant either to "disclaim the relevant interest in the property or to bring an action to assert the claim in question." Bevilacqua, supra at 766, citing G. L. c. 240, § 1. Here, the Blakes in their petition requested that Bay State "be summoned to show cause as to why it should not be required to bring an action to try title as against [the Blakes]." Thus, the Blakes initially sought to compel Bay State to do exactly what it did: bring an action in order to resolve the parties' respective claims on the property. By permitting Bay State to accomplish this by way of a counterclaim, the judge was simply allowing an expedited resolution of the claims brought by the Blakes in their petition. This was entirely in keeping with the rules of civil procedure, as well as with Land Court procedure. See Land Court Standing Order 1-04 (adopting certain time standards in order to " 'secure the just, speedy and inexpensive determination of every action,' as required by Mass. R. Civ. P. 1 [, as amended, 450 Mass. 1403 (2008) ]"). See also Jepson v. Deutsche Bank Natl. Trust Co., 969 F. Supp. 2d 202, 205-206 (D. Mass. 2013) (try title statute intended to provide quick way to resolve title disputes).

Judgment affirmed.

      Bay State, in its notice of cross appeal and brief, argues that it is entitled to trial and appellate attorney's fees pursuant to the note secured by the subject mortgage. That note contains language giving Bay State "the right to be paid back by [the Blakes] for all of its costs and expenses in enforcing this Note." Here, Bay State's counterclaim sought a declaratory judgment that it held both the note and the mortgage. As such, it was not so much a proceeding to enforce the note as it was a proceeding to establish Bay State's right to foreclose on the Blakes' mortgage. Therefore, we deny Bay State's request for appellate attorney's fees, and deny its request to remand this case to the Land Court for an award of trial attorney's fees.