text:
    COMMONWEALTH v. David J. VIEIRA.
    16-P-1459
    Appeals Court of Massachusetts.
    Entered: January 23, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, David Vieira, was convicted after a jury trial in 2009 of trafficking in cocaine, G. L. c. 94C, § 32E(b )(4), and we affirmed the conviction on appeal. Commonwealth v. Vieira, 79 Mass. App. Ct. 1115 (2011). The defendant now appeals from the denial of his motion for a new trial. Finding no support for the defendant's claim of an unwaived conflict of interest on the part of defense counsel, we affirm.

1. Conflict of interest. "An actual or genuine conflict of interest ... must be one in which prejudice is 'inherent in the situation,' such that no impartial observer could reasonably conclude that the attorney is able to serve the defendant with undivided loyalty." Commonwealth v. Mosher, 455 Mass. 811, 819-820 (2010). Such a conflict may be found "where an attorney represents codefendants with inconsistent or contradictory lines of defense." Id. at 820, quoting from Commonwealth v. Walter, 396 Mass. 549, 544 (1986).

Here, defense counsel had represented a codefendant, David Medeiros, in prior cases. Counsel had briefly represented Medeiros in 2005 in an unrelated Federal case in which Medeiros and the defendant were codefendants. His representation of Medeiros in State court ended in February, 2008. Putting aside a one-day representation in District Court in 2004, counsel's representation of the defendant began in December, 2008. Accordingly, at no point did counsel represent both the defendant and Medeiros at the same time. Moreover, the Superior Court judge addressing the conflict issue determined that the defendant would be tried separately from Medeiros, thus eliminating any chance that counsel's argument would increase the chances of Medeiros's conviction. Accordingly, there was no actual conflict of interest. See Commonwealth v. Allison, 434 Mass. 670, 688-696 (2001) ; Mosher, 455 Mass. at 820.

A potential conflict of interest, such as that occasioned by counsel's stated desire to remain in Medeiros's good graces, requires relief only if the defendant "establishes ' "material prejudice" to his defense resulting from the alleged conflict.' " Commonwealth v. Stote, 456 Mass. 213, 222 (2010), quoting from Mosher, 455 Mass. at 823. Furthermore, a defendant may waive a conflict of interest. Commonwealth v. Watkins, 473 Mass. 222, 235 (2015). Here, the defendant's claim fails both because of his waiver and his failure to establish material prejudice to his defense.

Defense counsel properly brought the potential conflict to the attention of the judge prior to trial. Counsel then explained to the defendant his relationship with Medeiros and the potential risks of his representing the defendant. The judge conducted a colloquy with the defendant, at the end of which the defendant requested that counsel continue to represent him. We discern no error in the motion judge's determination, based on this colloquy, that "the defendant knowingly and voluntarily waived" the conflict. See Commonwealth v. Zabek, 86 Mass. App. Ct. 520, 526 (2014).

Furthermore, the defendant has failed to demonstrate material prejudice to his defense. At trial, counsel repeatedly highlighted evidence of Medeiros's involvement in the crime. In closing argument, counsel mentioned Medeiros eleven times, again highlighting the connection between Medeiros and the drugs.

The defendant relies on defense counsel's failure to call two witnesses. One is an unnamed "witness in the health food store ... [who] would have identified ... Medeiros[ ] as the person who had purchased the [i]nositol." This claim, however, was unsupported by any affidavit or other evidence, and it is hard to see how such a witness would have materially helped the defendant. At trial, a detective testified that seven empty bottles of inositol were found in a trash bag that codefendant Jose Avellar, accompanied by Medeiros, placed in a dumpster, along with a Wal-Mart receipt for acetone. The defendant told the police that Medeiros and Avellar had assisted him in preparing and packaging cocaine. As the Commonwealth's theory was that Medeiros and Avellar were assisting the defendant in a drug operation, further evidence that Medeiros had purchased the inositol would have accomplished little, and its absence did not materially prejudice the defendant. See Commonwealth v. Croken, 59 Mass. App. Ct. 921, 922 (2003).

The other witness identified by the defendant is Medeiros himself. Even putting aside the serious danger that Medeiros would have confirmed the defendant's statement to the police that Medeiros and Avellar had assisted the defendant in preparing cocaine, the defendant provides no reason to believe that Medeiros would have waived his right against self-incrimination. Accordingly, there was no error in the motion judge's determination that the defendant "failed to establish that [defense counsel's] representation was in any way impaired by his representation of [Medeiros] several years earlier." See Mosher, 455 Mass. at 823-826.

2. Bail money. The defendant alleges that he was the source of the money used by Medeiros's mother to post bail for Medeiros, a claim that apparently was accepted by the United States District Court for the District of Massachusetts, which ordered most of the money forfeited to the United States. The defendant further alleges that defense counsel diverted some of that money, apparently to pay an outstanding legal fee. The motion judge expressly discredited this allegation, and the defendant forthrightly "acknowledge[s] the lack of proof at this stage." Without deciding either way whether the defendant would be entitled to press the claim if he developed compelling evidence, we likewise recognize that the defendant has so far failed to provide adequate proof of this allegation, and thus the motion judge was entitled to discredit it. See Commonwealth v. Sanchez, 476 Mass. 725, 742 (2017).

Order denying motion for new trial affirmed.

      In 2016, we affirmed the denial of jail credits for the defendant arising from time already credited to the sentence in this Federal case. Commonwealth v. Vieira, 89 Mass. App. Ct. 1122 (2016).

      The defendant's claim that counsel did not provide him with certain information when explaining the conflict to him carries little weight in light of his initial inability to remember the colloquy at all.


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. Pamela FERRIE (and Two Companion Cases).
    17-P-127 16-P-1327
    Appeals Court of Massachusetts.
    Entered: January 23, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Against Keita Freeman.

   The defendants, Pamela Ferrie and Keita Freeman, appeal from their convictions following a Superior Court jury trial. Both defendants were convicted of witness intimidation, in violation of G. L. c. 268, § 13B. Freeman was also convicted of assault and battery by means of a dangerous weapon, in violation of G. L. c. 265, § 15A(b ). We affirm the defendants' convictions.

Background. We briefly recite the facts that the jury could have found, reserving certain facts for later discussion. In July, 2014, the defendants approached the victim, Erica Messina, on the front porch of a three-story apartment building in the Dorchester section of Boston. Ferrie was a resident of the apartment building. Messina frequently stayed at the building with a friend who lived in the second floor apartment with John Lynch. Ferrie and Messina had a contentious relationship stemming from allegations that Messina went through Ferrie's valuables in the basement of the building. Ferrie was also upset because Messina frequently loitered on the front porch of the building. Freeman, Ferrie's boy friend, confronted Messina about her ongoing conduct. Messina told Freeman that she was stressed out and pregnant. When Messina attempted to leave the porch, Freeman punched her on the side of the face. Messina then swung a knife at Freeman. Freeman knocked the knife out of her hand with a chair and continued to beat her head and stomach with the chair.

After his arrest, on a jailhouse recorded telephone line, Freeman admitted that he "bugged out" on Messina because he was stressed out. He instructed Ferrie-in so many words-that she needed to prevent Messina from testifying against him in court. Over the course of her recorded conversations with Freeman, Ferrie repeatedly agreed to his requests, and at one point stated, "I've done everything you've asked me to do." The recorded telephone calls were entered in evidence.

Shortly after her recorded conversation with Freeman, Ferrie told Messina that she should not go to court and that if she did, she and her unborn child "would be done." According to Messina, that same day she informed her mother, the building's landlord, Stephen Lasoff, and Lynch that Ferrie threatened her. Shortly after, Messina reported the threat to Detective Thompson, who in turn contacted Lasoff and then filed a complaint in the District Court.

Ferrie's appeal. Ferrie contends that the judge erroneously admitted hearsay evidence that corroborated Messina's testimony and cut against Ferrie's alibi. Ferrie also maintains that the prosecutor misstated evidence in his closing argument.

a. Hearsay. Messina told Lynch about the conversation in which she claimed Ferrie threatened her. At trial, Messina did not initially recall the exact date that the threat occurred. During cross-examination, Messina assented to Ferrie's theory that the threat took place on July 28, 2014, a Monday. Ferrie had an alibi-testimony from her employer that she was at work on July 28. To rehabilitate Messina's testimony, the Commonwealth examined Lynch, who testified that he spoke with Messina about the threat on the day that it occurred, which was a Sunday. Over objection, he testified to what Messina told him. Ferrie contends that Lynch's testimony regarding his conversation with Messina was impermissible hearsay.

Ordinarily, "a witness's prior consistent statement is inadmissible, even where a prior inconsistent statement of the witness has been admitted." Commonwealth v. Zukoski, 370 Mass. 23, 26 (1976). "[H]owever, a witness's prior consistent statement is admissible where a claim is made that the witness's in-court statement is of recent contrivance or is the product of particular inducements or bias." Id. at 26-27.

The defense questioned Messina's credibility, and impeached her with her history of drug use, admitted falsehoods, and varying versions of her story at different stages of the proceeding. While Ferrie's counsel stated in his opening statement that Messina's story was fabricated, there was no claim that the story was recently fabricated. The defense theory was that Messina was unreliable, and had fabricated all of her testimony from the start. Contrast Commonwealth v. Saarela, 376 Mass. 720, 723 (1978). Accordingly, Lynch's testimony was not admissible as a prior consistent statement.

Lynch's testimony was, however, admissible for other reasons. "[I]f a statement is not offered to prove the facts asserted in it but is offered only to show that the statement 'was made,' it is not hearsay and is admissible." Commonwealth v. Siny Van Tran, 460 Mass. 535, 550 (2011). Lynch's testimony was admissible to show the jury that Messina spoke with Lynch on the day the threat occurred-a Sunday. See Commonwealth v. Sullivan, 410 Mass. 521, 526 (1991). Therefore, Lynch's testimony concerning the fact of the conversation and its general content was properly admitted for that relevant purpose.

Ferrie objected to Lynch's testimony, but did not seek a limiting instruction after it was admitted. For this reason, the jury were able to consider the testimony for the truth of the matter asserted, a use not contemplated by our rules of evidence. We therefore review this error for a substantial risk of a miscarriage of justice. Cf. Commonwealth v. Veiovis, 477 Mass. 472, 486-487, 496 (2017). "[I]n light of the magnitude of the evidence" against Ferrie, including the taped conversations, "we discern no substantial [risk] of a miscarriage of justice that could have resulted from the judge's failure to give [an instruction] sua sponte." Commonwealth v. Novo, 449 Mass. 84, 93 (2007).

b. Closing argument. Ferrie maintains that the prosecutor improperly characterized the evidence by indicating that Detective Thompson confirmed that Ferrie threatened Messina after he spoke with Lynch and Lasoff. "Prosecutors must limit the scope of their closing arguments to facts in evidence and the fair inferences that may be drawn therefrom." Commonwealth v. Valentin, 474 Mass. 301, 309 (2016). Statements made during closing arguments are considered in the context of the entire argument and in light of the judge's instructions to the jury. Commonwealth v. Carriere, 470 Mass. 1, 19 (2014).

The challenged statement is as follows:

"[Messina] has been consistent that [the threat] was said, and you have corroborating evidence that it was said, not on the 28th but on the 27th, inside the date range in this indictment. You know it because despite what [defense counsel] said, Detective Thompson followed up in the investigation. He called the landlord, Mr. Lasoff, and had a conversation with him. He called John Lynch, the man who was renting the apartment, and had a conversation with him. And when he spoke to them, he confirmed this conversation and applied for a complaint against [Ferrie]."

On appeal, Ferrie contends the prosecutor's statement was erroneous because it was based on impermissible hearsay that corroborated Messina's testimony, and further, that the testimony mischaracterized the evidence. Detective Thompson testified that he spoke to Lasoff after Messina complained that she was threatened by Ferrie. He stated that through his conversation with Lasoff he "actually confirmed that the opportunity to have the conversation [with Messina] took place," but did not testify to the substance of his conversation with Lasoff. The prosecutor's reference to this conversation itself was not erroneous as it was rooted in the evidence presented at trial, but to the extent that it suggested that he confirmed the content of the conversation with Lasoff, he misspoke. Moreover, the prosecutor's reference to a telephone conversation between Thompson and Lynch lacks support in the record.

The misstatements, however, do not require reversal. "In determining whether an error in closing argument requires reversal, we consider whether defense counsel made a timely objection; whether the judge's instructions mitigated the error; whether the error was central to the issues at trial or concerned only collateral matters; whether the jury would be able to sort out any excessive claims or hyperbole; and whether the Commonwealth's case was so strong that the error would cause no prejudice." Commonwealth v. Harris, 443 Mass. 714, 732 (2005).

The judge instructed the jury on three separate occasions that they were the sole and exclusive judges of the facts and that closing arguments were not evidence. See Commonwealth v. Bresilla, 470 Mass. 422, 438 (2015), quoting from Commonwealth v. Kozec, 399 Mass. 514, 517 (1987) ("[W]e must and do recognize that closing argument is identified as argument, the jury understand [ ] that, instructions from the judge inform the jury that closing argument is not evidence, and instructions may mitigate any prejudice in the final argument"). In addition, the evidence against Ferrie was strong, specifically, the jailhouse recordings that showed the existence of a plan between the defendants to prevent Messina from testifying. Treating the objections to closing argument as preserved, we are convinced that any error in the closing argument "did not influence the jury, or had but very slight effect." Commonwealth v. Cheremond, 461 Mass. 397, 411 (2012), quoting from Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).

Freeman's appeal. Freeman contends that the judge erroneously denied him the opportunity to put on expert evidence regarding his defensive wounds ; the judge abused his discretion by admitting jailhouse telephone call recordings between Freeman and Ferrie and Freeman and his wife; and the Commonwealth should not have been able to access his jailhouse telephone calls without a search warrant.

a. Expert evidence. Prior to trial, the parties filed motions in limine to determine the admissibility of Dr. Carl Dahlberg's anticipated testimony about Freeman's defensive wounds. On the first day of trial, although he initially stated that Dahlberg was not qualified as an expert, the judge reserved his ruling on the motion pending voir dire of Dahlberg. Dahlberg's voir dire occurred on the fourth day of trial. Before the voir dire, Freeman stated, "I am not going to put forth any concept of opinion as to how [the defensive] injuries were suffered at this point. I just would be using [Dahlberg] to provide information with regard to the gravity, nature and severity of the injuries. So I am not going to go down that particular road.... I'm not going to go into the defensive wounds and all of that issue."

On appeal, Freeman now contends that the judge erroneously denied him the opportunity to offer expert evidence regarding his defensive wounds. As a general rule, we do not allow "a lawyer [to] try a case on one theory and then, having lost on that theory, argue before an appellate court ... issues which might have been, but were not, raised at the trial." Commonwealth v. Olson, 24 Mass. App. Ct. 539, 544 (1987). Thus, we treat this issue as waived, and reverse only if we find that there has been error, and the error created "a substantial risk of a miscarriage of justice." Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). The judge did not abuse his discretion by declining to rule on a matter that was no longer before him. See Commonwealth v. Feliciano, 442 Mass. 728, 737 (2004).

b. Jailhouse recordings. Freeman maintains that the judge abused his discretion by admitting jailhouse telephone call recordings in evidence because they were more prejudicial than probative. "The relevance threshold for the admission of evidence is low." Commonwealth v. Adjutant, 443 Mass. 649, 657 n.11 (2005), quoting from Commonwealth v. Arroyo, 442 Mass. 135, 144 (2004). The judge's determination of whether the evidence is relevant and more prejudicial than probative "will be upheld on appeal absent palpable error." Commonwealth v. Marrero, 427 Mass. 65, 67-68 (1998), quoting from Commonwealth v. Valentin, 420 Mass. 263, 270 (1995).

We note that the judge conducted a thorough examination of the recorded calls before determining their admissibility. He excluded one recording completely and another was redacted. The remaining recorded calls were relevant because Freeman admitted to assaulting Messina, discussed his state of mind during the assault (relevant to prove that his actions were not self-defense), and showed that the defendants established a plan to intimidate Messina to prevent her from testifying against Freeman. In balancing probative value against risk of prejudice, the fact that the evidence goes to a central issue in the case weighs in favor of admission. See Commonwealth v. Ridge, 455 Mass. 307, 322-323 (2009) ; Mass. G. Evid. § 403 (2017). The judge did not abuse his discretion in admitting the recordings.

c. Privacy interest. Finally, Freeman suggests that the Supreme Judicial Court's ruling in Matter of a Grand Jury Subpoena, 454 Mass. 685, 688 (2009), which holds that no privacy interest exists in recorded inmate telephone conversations when the inmate is on notice that the calls were being recorded, is in error. We decline to extend relief beyond those boundaries defined by the Supreme Judicial Court.

Judgments affirmed.

      He stated to his wife (a woman other than Ferrie), "You think I wanna be sitting here because I beat up some fucking dope head?"

      Freeman stated that Ferrie needed to "prevent these motherfuckers from being at court" and said, "I can't have the bitch come to court and tell a fucking story about how I beat her the fuck up."

      Lynch believed Messina told him about the threat on a weekend day because he had played golf that day and he did not play golf during the week.

      The prosecutor did not argue, and the judge did not make a finding of, recent contrivance, only that the statements were consistent.

      The Commonwealth maintains that the error is unpreserved because the nature of the objection changed between trial and appeal. For purposes of the appeal, we treat the objection as preserved.

      Freeman asked the judge, "with regards to a voir dire at the close of the Commonwealth's case, that the Court just hold off on making a ruling on [the admissibility of Dahlberg's testimony] and allow at that time for me to make the argument and show the case law." In response, the judge stated, "All right. The Court reserves on the motion for voir dire."


text:
    Robert C. RANSOW v. AETNA CASUALTY & AETNA CASUALTY & SURETY COMPANY.
    17-P-542
    Appeals Court of Massachusetts.
    Entered: January 23, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The plaintiff appeals from the denial of his 2016 motion for relief from judgment pursuant to Mass.R.Civ.P. 60(b)(4) and 60(b)(5), 365 Mass. 828 (1974). The motion sought relief from a 1994 order allowing the defendant's motion for relief from judgment and a subsequent 1996 order enforcing a settlement agreement. Two prior rule 60(b) motions filed by the plaintiff were denied in 1997 by two different Superior Court judges. In 2016, a third Superior Court judge denied the plaintiff's motion at issue here, stating:

"Two prior judges of this court have denied the plaintiff's belated attempts to reopen his case as untimely and lacking in merit. Now there is a third to conclude the same and offer the additional rationale that the plaintiff's renewed attempt to reopen the case is issue precluded."

We affirm.

1. Motion for relief from judgment. To prevail on a motion pursuant to Mass.R.Civ.P. 60(b)(4), the plaintiff must demonstrate that the "judgment is void for lack of subject matter or personal jurisdiction, or for failure to conform to the requirements of due process of law." Wang v. Niakaros, 67 Mass. App. Ct. 166, 169 (2006). The plaintiff's motion below and his brief to this court argue that the Superior Court judge erred by allowing the defendant's 1994 motion for relief from judgment pursuant to rule 60(b)(5), as that rule did not properly apply to the relief sought in the motion. Nothing in this record suggests that the defendant's motion for relief from judgment was pursuant to rule 60(b)(5), nor did the plaintiff pose any procedural objection at the time. In any event, the plaintiff makes no showing that, at the time the decisions were rendered (or any time thereafter), the court lacked personal or subject matter jurisdiction, or that any of its proceedings failed to comply with the due process of law. Rather, the plaintiff's argument amounts to a challenge to the legal basis of the judge's 1994 order. Such a challenge does not render the order void. See Bowers v. Board of Appeals of Marshfield, 16 Mass. App. Ct. 29, 33 (1983) (allegedly erroneous judgment "is not susceptible to attack as void"). Accordingly, the plaintiff's motion was properly denied.

To the extent the plaintiff's motion sought relief from judgment pursuant to Mass.R.Civ.P. 60(b)(5), that subsection has no apparent applicability here, and the plaintiff provides no separate argument on appeal concerning it. The issue, therefore, is waived. See Doe v. New Bedford Hous. Authy., 417 Mass. 273, 279 n.7 (1994). To the extent the plaintiff's brief seeks relief pursuant to Mass.R.Civ.P. 60(b)(6), 365 Mass. 828 (1974), that argument was not made below and may not be raised for the first time on appeal. See Gaw v. Sappett, 62 Mass. App. Ct. 405, 410 (2004). In any event, the plaintiff has failed to establish that any such motion seeking relief under either rule 60(b)(5) or (6), filed more than twenty years after the orders complained of, was filed within a reasonable time. See Gath v. M/A-Com, Inc., 440 Mass. 482, 497 (2003).

2. Attorney's fees. The defendant has requested appellate attorney's fees, not to exceed $2,500, in its brief on the ground that the appeal is frivolous. We agree, and we award attorney's fees pursuant to Mass.R.A.P. 25, as appearing in 376 Mass. 949 (1979). See Worcester v. AME Realty Corp., 77 Mass. App. Ct. 64, 72-73 (2010). Accordingly, in conformance with the procedure described in Fabre v. Walton, 441 Mass. 9, 10-11 (2004), the defendant shall, within fourteen days of the date of the rescript, file with this court and serve on the plaintiff a motion for determination of appellate attorney's fees and costs, supported by an affidavit detailing such fees and costs. The plaintiff may, within fourteen days thereafter, file with this court and serve on the defendant any opposition.

Order entered November 17, 2016, denying motion for relief from judgment affirmed.

      The parties entered into a settlement agreement after the insurer successfully moved to reduce the damages contained in the original judgment. The settlement agreement relinquished the plaintiff's right to appeal from the 1994 judgment.

      The docket reflects that the plaintiff filed a motion for relief from judgment on January 28, 1997, which was denied on February 20, 1997. He filed another motion for relief from judgment on May 28, 1997. A different Superior Court judge denied that motion on June 2, 1997, finding it "duplicative[,] untimely[,] and utterly without merit."

      Although the motion was filed more than twenty years after the orders at issue entered, there is no time limit for a motion for relief from a void judgment pursuant to rule 60(b)(4). Uzoma v. Okereke, 88 Mass. App. Ct. 330, 331 (2015).

      The plaintiff's brief states that the enforcement of the settlement agreement deprived him of his right to appeal. In fact, a judge found after a full hearing that the plaintiff agreed not to appeal as part of a settlement agreement, and the plaintiff enjoyed a full appeal of that decision. Ransow v. Aetna Cas. & Sur. Co., 42 Mass. App. Ct. 1110 (1997).

      In our discretion, we award only single costs, as we believe that an award of attorney's fees will suffice to deter further frivolous appeals.


text:
    COMMONWEALTH v. Jose CARRION.
    16-P-1325
    Appeals Court of Massachusetts.
    Entered: January 23, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant was indicted for murder in the first degree in the stabbing death of Melvin Pina, Jr. (the victim). After a nine-day trial in Superior Court, a jury convicted the defendant of the lesser-included offense of murder in the second degree. On appeal, the defendant argues that his pretrial motion to suppress certain evidence should have been allowed, and that his trial counsel was ineffective for failing to re-raise the suppression issue at trial. The defendant also argues that the Commonwealth's evidence at trial was insufficient to support his conviction for murder in the second degree. We affirm.

1. Motion to suppress. a. The factual findings. Three police witnesses testified at the motion to suppress hearing (two State troopers and a New Bedford detective). The motion judge found all three "believable and reliable witnesses," and she "credit[ed] their testimony in its entirety." Based on the evidence before her and inferences she drew from that evidence, the judge made the following findings of fact:

"On March 17, 2012, the body of the victim, Melvin Pina ('Pina') was discovered in the back yard of a residence on Conduit Street in New Bedford. He had been stabbed to death. During the initial investigation, the police received information about possible suspects in the murder: two brothers, Isaiah and Jose Trinidad, and the defendant. The police learned that [the defendant] had warrants outstanding for motor vehicle violations and minor drug offenses. Armed with this information, the police went searching for [the defendant] in order to place him under arrest on the warrants and to speak with him about the incident. Their search brought the police to the second floor apartment located at 42 Edward Street, New Bedford, the apartment of the defendant's girlfriend, Tanya Franklin ('Franklin'), and the location at which the defendant was known to reside.
"At approximately 6:00 P . M ., Trooper Michael Chevren ('Chevren') ... accompanied by several other state and local police officers entered the building and ascended to the second floor apartment.... Chevren was familiar with forensics associated with crime scenes including the appearance of blood stains. The other officers included Trooper Zack Johnson ('Johnson'), Detective Michael Carrier ('Carrier') and Detective James Estrella ('Estrella') of the New Bedford Police Department.... All of the officers were dressed in plain clothes wearing jackets indicating that they were police officers. Their badges were displayed.
"Carrier knocked on the door. Franklin answered the door. The entry door was off the kitchen. Chevren and Carrier identified themselves as police officers. Without entering into the apartment or moving over the threshold, Carrier and Chevren asked Franklin if the defendant was home. The tenor of the conversation was polite and cordial. Franklin backed away from the door and motioned with her hand for the officers to enter the kitchen area of the apartment. Meanwhile, the defendant stepped into the kitchen from one of the adjoining rooms. He did not object to the police presence in his kitchen. Carrier motioned for the defendant to step outside the apartment. The defendant stepped into the hallway, leaving Chevren and Franklin in the kitchen. Several small children were also in the apartment.
"The defendant asked the officers if he could be provided with shoes to wear to the station. Franklin asked Chevren for permission to get the defendant a pair of shoes. Chevren followed Franklin to the threshold of the doorway leading into a bedroom to make sure she did not retrieve a weapon to provide to the defendant. Chevren observed a small folding knife on the dresser. He also saw a pile of dirty clothes, atop of which was a pair of jeans. Franklin retrieved the shoes and gave them to Chevren, who examined them to make sure they did [not] contain any weapons. The shoes were given to the defendant and he was removed from the scene by the police.
"During this interaction, Franklin initiated conversation with Chevren, asking him what 'this was all about?' Chevren asked her if she knew what the defendant was wearing the previous evening. In response, Franklin walked into the bedroom and grabbed a pair of jeans that were lying on top of a dirty pile of laundry in the corner of the bedroom. Chevren followed Franklin into the bedroom. Franklin did not tell Chevren to stay in the kitchen or to wait outside the apartment while she retrieved the jeans. Instead, she picked up the jeans and showed them to Chevren. Chevren observed what he believed, based upon his training and experience, to be bloodstains on the leg of the jeans. Simultaneously, Franklin made the same observation, after which she tried to hide the stains by folding one leg over the other. Chevren instructed Franklin to stop what she was doing. He advised her that they would be freezing the scene in order to secure a warrant. Based in part upon the observations made by Chevren of the knife and the bloodstained jeans, a warrant was obtained to search the apartment, resulting in the seizure of the knife, the jeans and other evidence."

In reviewing a judge's "ruling on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error 'but conduct an independent review of [her] ultimate findings and conclusions of law.' " Commonwealth v. Scott, 440 Mass. 642, 646 (2004), quoting from Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002). The defendant has not demonstrated any clear error in the judge's subsidiary findings.

b. The scope of the defendant's argument. The dispute before us regarding the motion to suppress is a relatively narrow one. The defendant does not challenge the police's initial entry into the apartment to execute the arrest warrant. See Commonwealth v. Nova, 50 Mass. App. Ct. 633, 634-635 (2000) ("An arrest warrant encompasses the power to enter a residence for the purpose of executing the warrant"). Contrast Commonwealth v. Rogers, 444 Mass. 234, 240-241 (2005) (ambiguous gesture by person answering door did not justify warrantless entry into home). Moreover, although the defendant does not concede that Chevren was justified in following the defendant's girl friend in order to monitor her retrieval of the defendant's shoes, this is not the focus of his appeal in light of how little Chevren observed during that first trip to the bedroom. In any event, we conclude that in light of obvious potential safety concerns, it was reasonable and appropriate for Chevren to follow the girl friend to the bedroom when she retrieved the defendant's shoes. See Commonwealth v. Quilter, 81 Mass. App. Ct. 808, 810 (2012). See also Commonwealth v. Franco, 419 Mass. 635, 642 (1995) (where police who were inside residence to execute arrest warrant moved defendant to another room for proper purpose, they could seize contraband observed there in plain view).

What the defendant does actively contest is the validity of the actions that Trooper Chevren took after the arrest warrant was executed and the defendant was removed from the apartment. This included two related acts: Chevren's conversing with the girl friend in the kitchen and his following her to the bedroom the second time. The defendant maintains that without the resulting discovery of the bloody pants, the police lacked probable cause to obtain the search warrant through which they seized those pants and the knife. We address those contentions in order.

c. Chevren's conversation with the girl friend. Chevren's speaking with the girl friend in the kitchen was not itself a search; it was a conversation. In fact, it was the girl friend who initiated the conversation regarding "what 'this was all about.' " The record does not indicate that there was anything coercive about Chevren's making inquiries of the girl friend. As the judge noted, the girl friend initially invited the officers into her apartment, Chevren's tone with her was "polite and cordial" throughout, and there is no indication that she at any point asked him to leave. See Commonwealth v. Cantalupo, 380 Mass. 173, 178 (1980) ("What, if any, limitations on the consent are implied by the language or conduct of the consenting party is a question in the first instance for the judgment of the police officers to whom the consent is given").

Nevertheless, the defendant argues that as soon as the police had executed the arrest warrant and removed the defendant from the premises, they had an affirmative obligation to leave the girl friend's apartment. Thus, the defendant suggests, the constitutional infirmity here was not in Chevren's making inquiries of the girl friend, but in his doing so at this particular place and time.

We disagree. Where, as here, the girl friend volunteered an openness to speaking with Chevren after the arrest warrant was executed, and she never indicated that he should leave, we discern no constitutional problem in Chevren's taking this opportunity to speak with her. On this record, we decline to adopt a bright-line rule barring police who legitimately were inside a residence to execute an arrest warrant from engaging in conversations initiated by other occupants there as soon as the warrant has been executed. Contrast Commonwealth v. Cordero, 477 Mass. 237, 241-242 (2017) (establishing bright-line rule that absent additional justification, police cannot continue to detain occupants of vehicle stopped for routine civil traffic violations once tasks tied to traffic infraction are, or reasonably should have been, completed).

d. The discovery of the bloody pants. Having concluded that Chevren did not violate any constitutional norms in speaking with the girl friend in the kitchen, we turn now to his second trip to the bedroom (during which he observed the defendant's bloody pants). We agree with the Commonwealth that the motion judge did not commit clear error in concluding that the girl friend had consented to Chevren's following her there in order that she could show him what the defendant had been wearing the night before. To be sure, she did not affirmatively invite him to follow her to the bedroom using her words. Nevertheless, her walking there in response to his question as to what the defendant wore the night before could have been understood as a nonverbal invitation to do so (particularly where Chevren already had accompanied her to the bedroom once). The fact that-once back in the bedroom-the girl friend retrieved the defendant's pants and showed them to Chevren supports that it indeed was her intent that Chevren follow her when she left the kitchen. Contrast Commonwealth v. Suters, 90 Mass. App. Ct. 449, 455 (2016) (where defendant in presence of police officers entered basement room and closed door behind him, "a reasonable person in the position of the police officers would understand that any consent that may previously have been given by [his wife] with respect to entry into [that] room was withdrawn").

e. The seizure of the pants and the knife. With Chevren lawfully having observed the bloody pants, and armed with information that the defendant had been at the murder site, the application for the search warrant was amply supported. Indeed, the defendant does not contend otherwise. Accordingly, we discern no error in the judge's denial of the motion to suppress.

2. Ineffectiveness of counsel. Defense counsel vigorously, if unsuccessfully, pursued the motion to suppress. When that was denied, he then unsuccessfully sought to pursue an interlocutory appeal of that denial. Nevertheless, the defendant now argues that his counsel was constitutionally ineffective for failing to renew the motion to suppress at trial. To succeed on his ineffective assistance claim, the defendant must show that his counsel's failure to renew the suppression issue at trial both fell "measurably below that which might be expected from an ordinary fallible lawyer" and "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974) (establishing familiar two-prong test for ineffective assistance).

The flaw in the defendant's ineffective assistance claim is that he is unable to identify any evidence that came out at trial that materially affected the suppression calculus. All he claims is that the trial evidence revealed "that the interaction [between Chevren and the girl friend] was longer and more detailed than initially reporte[d] by [Chevren] with [Chevren] asking more questions," and that this somehow "bolster[ed] the defense argument that [the girl friend] did not voluntarily consent to the continued police presence." The defendant has not demonstrated that any revelations that arose at trial regarding the precise nature of the conversation between Chevren and the girl friend so strengthened his suppression argument that his counsel was constitutionally ineffective for failing to renew the issue.

3. Sufficiency of the evidence. The defendant also argues that he was convicted of murder in the second degree based on legally insufficient proof. In a challenge to the sufficiency of the evidence, we examine whether, "viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). In addition, the sufficiency of the evidence "is to be measured upon that which was admitted in evidence without regard to the propriety of the admission." Commonwealth v. Sepheus, 468 Mass. 160, 164 (2014), quoting from Commonwealth v. Farnsworth, 76 Mass. App. Ct. 87, 98 (2010).

The Commonwealth presented evidence upon which the jury could find that the defendant, together with others, violently attacked the victim at an after-hours club, and that during this attack, the victim was stabbed in the chest (which caused his death). The apparent murder weapon was then found in the defendant's possession with traces of the victim's blood (despite the defendant's attempts to wash the blood off the knife). The pants that the defendant had been wearing that night were also stained with the victim's blood. Such evidence presented an ample basis on which rational jurors could find that the defendant "knowingly participated in the commission of the crime charged, alone or with others, with the intent required for that offense." Commonwealth v. Zanetti, 454 Mass. 449, 468 (2009). Nothing more was required.

Judgment affirmed.

      Nothing in the record indicates that Chevren's asking the girl friend questions in her own home remotely could be considered custodial. Compare Commonwealth v. Lavendier, 79 Mass. App. Ct. 501, 503-506 (2011) (significantly more intensive questioning of defendant in his cousin's home held not custodial). This is hardly surprising given that the girl friend herself was never a suspect, and had no reason to believe she was.
      On appeal, the defendant suggests that the conversation between Chevren and the girl friend was inherently coercive because the two were of different races or ethnicities. The defendant did not press this argument in the trial court, and his factual premise is not established by the record.

      We recognize that it may well be that, as a result of Chevren's seizing this opportunity, the girl friend was caught off guard by his questions. Although this may have made Chevren's efforts to investigate the victim's murder more effective, it does not mean that Chevren thereby violated the constitution.

      As an alternative argument, the defendant suggests that even if Chevren was not constitutionally required to leave the apartment once the arrest warrant had been executed, we should hold that he had an affirmative duty to inform the girl friend that she had no obligation to speak with him. Again, the defendant has provided no citation that recognizes such a duty, and especially given that we lack the Supreme Judicial Court's superintendence powers, we have no basis for creating such a Miranda-like prophylactic rule here. At most, the case law indicates that where police made a request of a defendant to conduct a search without explaining his right to refuse that search, this is "a factor to be considered in assessing the voluntariness of the consent." Commonwealth v. Cantapulo, supra.

      Notably, this is not a case where the police are contending that they had consent to rummage through the defendant's bedroom or otherwise to conduct an active search of it. The Commonwealth's narrow contention is that the police had consent to continue the conversation with the girl friend by following her to the bedroom.

      We need not reach the Commonwealth's alternative argument that the police could have seized the pants without a search warrant.


text:
    L.B. & others v. COMMISSIONER OF the DEPARTMENT OF DEVELOPMENTAL SERVICES.
    16-P-1328
    Appeals Court of Massachusetts.
    Entered: January 29, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      D.M., A.M., and M.P.

   The plaintiffs appeal from a Superior Court judgment dismissing their lawsuit against the commissioner of the Department of Developmental Services (commissioner or department). Concluding that (1) the plaintiffs have not pleaded sufficient facts to show the impairment of a constitutionally-protected liberty interest or a substantial injury, and (2) 115 Code Mass. Regs. §§ 5.05 (2009) and 5.13 (2011) are not unconstitutionally vague, we affirm.

1. Background. The plaintiffs are caregivers employed by the Judge Rotenberg Educational Center, Inc. (JRC), a private facility licensed by the department to provide services for developmentally disabled adults. On February 17, 2013, the plaintiffs were involved in an incident with a resident of the JRC that was later investigated by the department. By the time of that investigation, the JRC had already disciplined and retrained the plaintiffs.

The department investigator found numerous shortcomings on the part of the JRC. The investigator found that the narrow hallways of the residence and the placement of the resident's bedroom "put [the resident] and staff at unnecessary risk of harm." The investigator also found that the JRC had failed to keep the resident's individual habilitation plan up to date. The investigator questioned whether the residence was "even appropriate for [the resident's] needs." In light of these shortcomings, the investigator found that the plaintiffs should have ceased transporting the resident once she began actively struggling and that their failure to do so "exposed [the resident] to a serious risk of harm." Accordingly, the investigator found "sufficient evidence to substantiate mistreatment." Although the investigator and the resulting action plan recommended numerous remedial steps for the JRC, they did not recommend any remedial steps for the plaintiffs.

The plaintiffs appealed the finding of mistreatment to the commissioner, who affirmed the finding. The plaintiffs then filed a complaint in the Superior Court seeking, inter alia, judicial review and a declaratory judgment. A Superior Court judge dismissed the complaint under Mass.R.Civ.P. 12(b)(6), as amended, 365 Mass. 755 (1974), for failure to state a claim upon which relief can be granted.

2. Standard of review. "We review the denial of a motion to dismiss de novo, accepting the facts alleged in the complaint as true and drawing all reasonable inferences in the plaintiff[s'] favor." Edwards v. Commonwealth, 477 Mass. 254, 260 (2017). To survive a motion to dismiss, the plaintiffs must present factual allegations that rise above the level of speculation, see Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), and plausibly suggest an entitlement to relief. See Flagg v. AliMed, Inc., 466 Mass. 23, 26 (2013). See also Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011) ("we look beyond the conclusory allegations in the complaint and focus on whether the factual allegations plausibly suggest an entitlement to relief").

3. Due process claim. The Fourteenth Amendment to the United States Constitution does not recognize a person's reputation as a protected liberty interest, "unless 'a right or status previously recognized by state law [is] distinctly altered or extinguished.' " Vaccaro v. Vaccaro, 425 Mass. 153, 160 (1997) (Vaccaro ), quoting from Paul v. Davis, 424 U.S. 693, 711 (1976) (Paul ). In particular, stigma resulting from defamatory State action, standing alone, is not an actionable due process violation. Paul, 424 U.S. at 709. The Supreme Judicial Court has held that art. 12 of the Massachusetts Declaration of Rights similarly provides "no independent protection for an individual's reputation." Vaccaro, 425 Mass. at 161 n.9.

Accordingly, the plaintiffs ultimately must show that the department's determination has the effect of altering or extinguishing their rights or status. The plaintiffs, however, do not sufficiently allege any change to their status or rights. Other than conclusory allegations, they plead no termination or other adverse employment decision, and the plaintiffs remained employed in the same position at the time they filed their complaint. The documents incorporated in their complaint reflect that the discipline of the plaintiffs preceded the department's determination.

Although it is uncontested that the department's findings are maintained in its electronic databases and in internal JRC records, the controlling statutory and regulatory scheme, including the Fair Information Practices Act, precludes the release of this information to employers and potential employers. See G. L. c. 66A, § 2(c ) ; 115 Code Mass. Regs. §§ 4.05 - 4.06 (2009), 9.19(1)(b) (2017). Accordingly, the plaintiffs' basic contention that the plaintiffs' future employment opportunities will be adversely affected does not rise above a speculative possibility. See Edwards, 477 Mass. at 265 (dismissing plaintiff's claim as "too speculative" where fact-finder would be required to "jump from one inference to another absent any of the necessary factual support"). In light of the "ample confidentiality procedures in place to protect the information in the system from general dissemination," the complaint shows no more than "a generalized fear of injury to [the plaintiffs'] reputation" insufficient to support a due process claim. Vaccaro, 425 Mass. at 161. See Board of Regents of State Colleges v. Roth, 408 U.S. 564, 573 (1972) (no actionable stigma to support due process claim where State action did not foreclose employment opportunities). The judge properly dismissed the due process claim.

4. Certiorari. In this context, to obtain certiorari review, the plaintiffs are required to show, inter alia, "a substantial injury or injustice arising from the proceeding under review." New Bedford Educators Assn. v. Chairman of the Mass. Bd. of Elementary and Secondary Educ., 92 Mass. App. Ct. 99, 113 (2017), quoting from School Comm. of Hudson v. Board of Educ., 448 Mass. 565, 576 (2007). Such a substantial injury may exist in the absence of the deprivation of a constitutional right, see Revere v. Massachusetts Gaming Commn., 476 Mass. 591, 603-604 (2017), but it may not lie where "the allegations are speculative and the damage alleged is generalized." Friedman v. Conservation Commn. of Edgartown, 62 Mass. App. Ct. 539, 545 (2004), quoting from Fiske v. Board of Selectmen of Hopkinton, 354 Mass. 269, 271 (1968). As with the due process claim, the plaintiffs' failure to plead, beyond conclusory allegations, any nonspeculative harm to their employment prospects is fatal to their certiorari claim. See Johnston v. Box, 453 Mass. 569, 583 (2009), quoting from All Seasons Servs., Inc. v. Commissioner of Health & Hosps. of Boston, 416 Mass. 269, 272 (1994) ("Courts are not required to grant motions to amend prior complaints where 'the proposed amendment ... is futile' ").

5. Constitutionality of regulations. A law is unconstitutionally vague "if persons 'of common intelligence must necessarily guess at its meaning and differ as to its application,' " or if it otherwise "subjects people to an unascertainable standard." Chief of Police of Worcester v. Holden, 470 Mass. 845, 854 (2015), quoting from Caswell v. Licensing Commn. for Brockton, 387 Mass. 864, 873 (1983), and Brookline v. Commissioner of the Dept. of Envtl. Quality Engr., 387 Mass. 372, 378 (1986) (Brookline ). "While civil statutes are also subject to scrutiny for vagueness, '[t]he test is less strict when the law involves the regulation of business and economic activity and does not inhibit the exercise of constitutionally protected rights.' " Massachusetts Gen. Hosp. v. Commissioner of the Div. of Med. Assistance, 66 Mass. App. Ct. 485, 490 (2006) (Massachusetts Gen. Hosp.), quoting from Massachusetts Fedn. of Teachers, AFT, AFL-CIO v. Board of Educ., 436 Mass. 763, 780 (2002). "In addition, we recognize that 'the practical necessities of discharging the business of government inevitably limit the specificity with which [a regulatory agency] can spell out prohibitions.' " Massachusetts Gen Hosp., 66 Mass. App. Ct. at 490, quoting from Brookline, 387 Mass. at 378.

Under this standard, the challenged regulations provide an ascertainable standard. The general prohibition of mistreatment under 115 Code Mass. Regs. § 5.05 provides ten specific examples of proscribed conduct, and is neither unascertainable nor requires guesswork as to its meaning and application by persons of common intelligence. See Massachusetts Gen. Hosp., 66 Mass. App. Ct. at 490-491 (medical regulations providing "several sources of guidance" to assist interpretation, "a list of factors" to consider in application, and "concrete examples" of prohibited situations satisfied constitutional standards). Nor do the plaintiffs appear to question that the department may find mistreatment where caregivers fail to follow the relevant safety manual, thus creating a serious danger of an actively resisting resident falling on stairs; rather, they challenge the accuracy of those factual findings.

Likewise, as the plaintiffs pointed out to the department, for purposes of this case, 115 Code Mass. Regs. § 5.13 merely creates an exception to the emergency restraint requirements of 115 Code Mass. Regs. § 5.11 (2009). The department investigator substantiated only a violation of § 5.05. Nothing in § 5.13 provides an exception to the prohibition of mistreatment in § 5.05. Although the commissioner's discussion of § 5.11 and § 5.13, and her construction of the plaintiffs' argument regarding them, is hard to follow, § 5.13 itself provides ascertainable guidance, at least in the context of this case.

Judgment affirmed.

      Contrary to the plaintiffs' suggestion, the Supreme Judicial Court did not overrule Vaccaro sub silentio in Doe v. Attorney Gen., 426 Mass. 136, 144 (1997) (Doe ). The court there held that a person adjudicated a sex offender had the right to challenge the constitutionality of the sex offender registry requirements. Doe, 426 Mass. at 143-144. To reach this conclusion, the court stated that it "need[ed] not decide ... that injury to reputation alone is a protected privacy interest under the due process provisions of the State Constitution."Id. at 144. Rather, the due process rights arose from the combination of "(1) the requirement that [the plaintiff] register with local police; (2) the disclosure of accumulated personal information on request; (3) the possible harm to his earning capacity; (4) the harm to his reputation; and most important, (5) the statutory branding of him as a public danger, a sex offender." Ibid. The fourth and arguably the third factors apply to the plaintiffs.


text:
    Mary C. INTONTI v. Albert J. INTONTI.
    17-P-777
    Appeals Court of Massachusetts.
    Entered: January 29, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Albert Intonti (father) filed a complaint for civil contempt against Mary Intonti (mother), claiming that she failed to comply with the parties' separation agreement, which was incorporated in a divorce judgment. A judge of the Probate and Family Court found the mother not in contempt and awarded her attorney's fees in the amount of $500. The father appeals.

"[A] civil contempt finding [must] be supported by clear and convincing evidence of disobedience of a clear and unequivocal command." Birchall, petitioner, 454 Mass. 837, 853 (2009). "Where the order is ambiguous or the disobedience is doubtful, there cannot be a finding of contempt." Id. at 852, quoting from Judge Rotenberg Educ. Center, Inc. v. Commissioner of the Dept. of Mental Retardation (No. 1), 424 Mass. 430, 443 (1997). We review the judge's ultimate conclusion on contempt for abuse of discretion. See K.A. v. T.R., 86 Mass. App. Ct. 554, 567 (2014). An abuse of discretion occurs where "the judge made a clear error of judgment in weighing the factors relevant to the decision, ... such that the decision falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (quotation omitted).

The father alleged in his complaint that the mother should be found in contempt on two grounds. First, he alleged that the mother failed to send him copies of their children's college bills, as required by the separation agreement. It is true that the agreement states that the mother "will send copies of college bills to" the father. It goes on to state, however, that "[t]he parties have certain funds set aside for the children's college education" and that neither party would be obliged to pay for college education until "all those available funds are exhausted." According to the father's trial testimony, the funds have not yet been exhausted, and he has not yet been called upon to contribute to the children's education. It is evident that the judge found the agreement reasonably susceptible to the mother's interpretation-that she need not send the father copies of the college bills until such time as he becomes obligated to contribute. The judge was within her discretion in finding the agreement ambiguous in this respect and therefore in concluding that the mother did not disobey "a clear and unequivocal command." Birchall, 454 Mass. at 853. See Rosen v. Rosen, 90 Mass. App. Ct. 677, 691-692 (2016).

Second, the father alleged that the mother violated the separation agreement by not delivering to him certain items of personal property. But as the father conceded at trial, the agreement does not specifically list or identify the allegedly missing items as his property and does not otherwise unambiguously command the mother to deliver the specified items to him. Thus, it was likewise within the judge's discretion to find the mother not in contempt on this basis.

We reject the father's assertion that the judge did not afford him a fair trial, as we have carefully reviewed the trial transcript and discern no unfairness in the way the judge conducted the proceeding. We note that the father at no time objected to any of the procedures employed or the evidence admitted. He never indicated to the judge that he intended to call witnesses, nor did the judge prevent him from doing so. Furthermore, as the trial came to a close, the judge specifically asked the father whether there was "[a]nything else, sir, you want to tell me?" After the father responded with additional statements, the judge closed the proceedings without objection. In short, the record establishes that the father had a full and fair opportunity to present his case.

Finally, we conclude that the judge was within her discretion in awarding attorney's fees to the mother. The judge had discretion to award fees pursuant to G. L. c. 208, § 38, and could do so "even in the absence of bad faith or frivolous claims or defenses." Wasson v. Wasson, 81 Mass. App. Ct. 574, 582 (2012). We perceive no abuse of discretion in the modest sum the judge awarded in this case.

Judgment dated April 20, 2017, affirmed.

      We exercise our own discretion to deny the mother's request for appellate attorney fees.


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    Paul SULLIVAN v. CORA OPERATIONS, INC., & another.
    16-P-1709
    Appeals Court of Massachusetts.
    Entered: January 26, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Individually and on behalf of all others similarly situated.

      John V. Zirpolo.

   The plaintiff appeals from a judgment dismissing, pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), his complaint asserting violation of the Massachusetts prevailing wage statute, G. L. c. 149, § 27 (Wage Act), and for quantum meruit. In essence, the plaintiff claims he was entitled to be paid according to a wage rate schedule requiring drawbridge operators be paid a prevailing hourly wage of $74.55 and that the defendants violated the Wage Act when they followed a subsequent opinion letter from the Department of Labor Standards (DLS). We affirm.

We review the denial of a motion to dismiss under rule 12(b)(6) to determine whether the factual allegations of the complaint are sufficient to plausibly suggest an entitlement to relief. See Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008). We accept as true the complaint's well-pleaded factual allegations and draw every reasonable inference in favor of the plaintiff. See Warner-Lambert Co. v. Execuquest Corp., 427 Mass. 46, 47 (1998). While the allegations of the complaint generally control in evaluating a motion under rule 12(b)(6), "matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint, also may be taken into account." Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2000), quoting from 5A Wright & Miller, Federal Practice and Procedure § 1357, at 299 (1990). See Jarosz v. Palmer, 49 Mass. App. Ct. 834, 836 (2000) ; Lalchandani v. Roddy, 86 Mass. App. Ct. 819, 824 (2015).

Viewed through this legal framework, we summarize the allegations of the complaint (together with the documents to which it refers and the opinion letter of which the judge took judicial notice). The plaintiff, a bridge tender (also known as a "drawbridge operator"), is employed by defendant Cora Operations, Inc. (Cora). Cora is a subcontractor to J.F. White-Skanska, Joint Venture, which serves as general contractor to the Massachusetts Department of Transportation (MassDOT) with respect to the Fore River bridge replacement project (project). In 2012, MassDOT issued a request for proposal (RFP) stating the project was subject to the Wage Act, and included a wage sheet produced by DLS. The wage sheet did not have a separate classification for drawbridge operators; accordingly, bridge tenders such as the plaintiff were paid at the lowest rate on the wage schedule, which is alleged to have been $19.47. The complaint does not allege that Cora failed to follow the 2012 wage sheet in paying the plaintiff.

On August 20, 2013, DLS published a revised wage schedule for the project that included a "Drawbridge Operator" classification which carried an hourly wage of $74.55. Cora requested an opinion from DLS as to whether it was required to pay its bridge tenders the new higher wage. In response, DLS issued an opinion letter stating that Cora was required to follow the revised wage schedule. Cora complied.

Subsequently, on December 5, 2014, DLS issued another opinion letter (2014 DLS letter) in which it again addressed the wages for bridge tenders working on the project. DLS concluded that "[g]iven the unusual increase in the prevailing wage for the Drawbridge Operator classification, the impact on already-awarded contracts, and the 'understanding' of the parties in the private construction industry, the DLS determines that the Drawbridge Operator classification on the prevailing wage sheet is only effective for public works bid after the date of this letter. For contracts awarded prior to this date [such as the project], the bridge tender must be paid at the lowest rate on the applicable rate sheet." In accordance with the 2014 DLS letter, Cora subsequently reduced the plaintiff's wages to his previous hourly rate.

This suit followed in which, as we noted at the outset, the plaintiff asserts claims for violation of the Wage Act and quantum meruit against his employer. The claims are unusual in the sense that the defendants are not alleged to have deviated from the wage rates set by DLS as interpreted by it. Instead, the claims rest on the plaintiff's contention that DLS can only set wages through wage schedules, not opinion letters, and accordingly the 2014 DLS letter did not relieve the defendants of their obligation to pay the plaintiff in accordance with the earlier wage schedule. We are not persuaded. DLS is permitted to "make an advisory ruling with respect to the applicability to any person, property or state of facts of any statute or regulation enforced or administered by" it. G. L. c. 30A, § 8, inserted by St. 1954, c. 681, § 1. And we have previously held that DLS opinion letters, although not having "the same 'force of law' as a statute," Niles v. Huntington Controls, Inc., 92 Mass. App. Ct. 15, 21 (2017), are within the "Legislature's broad delegation to the commissioner of 'the details of how the prevailing wage law should be applied,' " id. at 22, quoting from Teamsters Joint Council No. 10 v. Director of the Dept. of Labor & Workforce Dev., 447 Mass. 100, 109 (2006).

Judgment affirmed.

      The plaintiff makes no meaningful argument concerning the dismissal of his quantum meruit claim.

      On appeal, the plaintiff does not meaningfully challenge the judge's decision to take judicial notice of the DLS letter, which was neither referenced in the complaint nor attached to it. Indeed, the plaintiff mentions the point only in passing at the end of his reply brief. "Any issue raised for the first time in an appellant's reply brief comes too late, and we do not consider it." Pasquale v. Casale, 72 Mass. App. Ct. 729, 738 (2008), quoting from Assessors of Boston v. Ogden Suffolk Downs, Inc., 398 Mass. 604, 608 n.3 (1986).

      The lowest rate classification was called "tree trimmer groundman."

      We have not found (nor has the plaintiff pointed us to) any case in which a Wage Act claim has been found to lie against an employer who pays its employees at the rate set by DLS.

      The plaintiff's reliance on George v. National Water Main Cleaning Co., U.S. Dist. Ct., Civil Action No. 10-10289-DJC (D. Mass. Sept. 16, 2013), is misplaced. Unlike in that case, we are not presented here with a situation where an employer sought a post-hoc opinion letter from DLS after a Wage Act suit had already been filed.


text:
    COMMONWEALTH v. Segundo L. LOJA.
    16-P-1731
    Appeals Court of Massachusetts.
    Entered: January 26, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury-waived trial, the defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor (OUI) and negligent operation of a motor vehicle. On appeal, the defendant argues that it was error for the judge to allow scientific evidence without expert testimony and that the judge erred in denying his motions for required findings. We affirm.

Discussion. 1. Scientific evidence. "Generally, determinations as to the admissibility of evidence lie 'within the sound discretion of the trial judge.' " Commonwealth v. Bins, 465 Mass. 348, 364 (2013), quoting from Commonwealth v. Jones, 464 Mass. 16, 19-20 (2012). See Mass. G. Evid. § 403 (2017).

Here, the arresting officer conducted a horizontal gaze nystagmus (HGN) test prior to arresting the defendant. At trial the judge allowed the officer to testify only as to his directions to the defendant on how to perform the test and the officer's observations of the defendant's compliance with the directions. The judge specifically excluded any testimony relating to scientific conclusions or opinions. We discern no error on the part of the judge. The officer did not directly render an expert opinion as to his interpretation of the HGN test; instead, his testimony amounted to a lay opinion that the defendant did not follow the directions that the officer provided for the test. A lay opinion is admissible where it is "(a) rationally based on the perception of the witness; (b) helpful to a clear understanding of the witness's testimony or the determination of a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge ...." Mass. G. Evid. § 701. See Commonwealth v. Canty, 466 Mass. 535, 541 (2013).

2. Sufficiency of the evidence. The defendant also argues that the evidence, when viewed in the light most favorable to the Commonwealth, was not sufficient to support a conviction for the offenses of operating under the influence and negligent operation of a motor vehicle, and the civil infraction of marked lanes violation. The elements of operating under the influence are (1) operation of a vehicle, (2) on a public way, (3) under the influence of alcohol. See G. L. c. 90, § 24. A defendant operates a vehicle negligently when he (1) operates a motor vehicle, (2) upon a public way, (3) negligently so that the lives of the public might be endangered. See § 24(2)(a ).

The evidence against the defendant included the manner in which he operated his vehicle, observations about his person, the presence of alcohol in the defendant's vehicle and opinions of the arresting officer. The officer's attention was drawn to the defendant when he observed the defendant's vehicle cross the center line as he exited route 6. When the officer attempted to stop the defendant's vehicle, the defendant increased his speed and made a number of turns without signaling. After stopping the defendant the officer made observations about the defendant's person that led him to form the opinion that the defendant was under the influence of intoxicating liquor. The observations included the smell of alcohol on the defendant's breath, bloodshot and watery eyes, and that the defendant was unsteady on his feet. The officer also observed two cold bottles of beer and one empty bottle of beer in the vehicle. The officer testified that the defendant was extremely intoxicated and it would be unsafe for the defendant to attempt to perform any physical field sobriety tests. The officer attempted to conduct an HNG test and provided verbal and demonstrative directions to the defendant. The defendant was unable to follow these directions. Therefore, taken in the light most favorable to the Commonwealth and drawing all reasonable inferences therefrom, we conclude that there was sufficient evidence to convict the defendant of operating under the influence and negligent operation. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).

Finally, the testimony that the defendant drove over the center line as he exited the ramp onto route 6A was sufficient to show that route 6A contained marked lanes and that the defendant drove outside of those lanes. Id. at 676-677.

Judgment affirmed.

      The trial judge also found the defendant responsible for possession of an open container of alcohol in a motor vehicle and marked lanes violation.

      The defendant does not challenge the sufficiency of evidence as to the elements of operation or public way.

      The defendant argues that the defendant's ability to comply was based on a language barrier, however, the weight and credibility of evidence is the province of the fact finder.


text:
    P. GIOIOSO & SONS, INC. v. LIBERTY MUTUAL INSURANCE COMPANY.
    17-P-171
    Appeals Court of Massachusetts.
    Entered: January 26, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The plaintiff construction company, P. Gioioso & Sons, Inc. (Gioioso), purchased lower cost, high-deductible, occurrence-based insurance policies from the defendant, Liberty Mutual Insurance Company (Liberty), for five policy years. These policies required Liberty to pay all claims and then seek reimbursement from Gioioso of the deductible amounts. Additionally, Gioioso was required to post a letter of credit as security for its anticipated financial obligations under the policies.

Gioioso initiated this litigation in 2012, claiming that Liberty improperly inflated the amount of security it would require, needlessly tying up Gioioso's credit, in breach of the parties' agreements and G. L. c. 93A. Liberty counterclaimed for a payment of $112,000 in outstanding premiums in connection with an earlier, retrospectively rated policy. Liberty also counterclaimed for attorney's fees and expenses (count II), relying on language in the contract governing the security obligation.

A Superior Court motion judge entered summary judgment in Liberty's favor on all claims except its claim for attorney's fees. Faced with cross appeals from the parties, we reverse that portion of the judgment pertaining to Liberty's request for fees and expenses (count II of its counterclaim). We affirm all other aspects of the judgment.

1. Breach of the security agreement. Gioioso began purchasing general liability, worker's compensation, and automobile insurance policies from Liberty in 2001, but switched to high-deductible policies requiring the posting of collateral in late 2005. Under its most recent policies, Gioioso's deductible amount was $300,000 for each covered loss. The policies are occurrence-based. In association with these high-deductible policies, the parties entered into an agreement for the guarantee of financial obligations ("security agreement"). The security agreement requires a "clean, irrevocable letter of credit" in an amount listed on an attached schedule, "subject to upward or downward adjustment in amounts by Liberty Mutual at least annually."

The security agreement goes on to state:

"Liberty Mutual may, at its sole discretion, determine that the estimated amount of unpaid Obligations is greater than the amount of the existing letter of credit and, if so, Liberty Mutual shall have the option to require Policyholder to deliver, within (30) days of receipt by Policyholder of written notice by Liberty Mutual, an amendment to the existing letter of credit or an additional letter of credit ... so that the total amount of such letter(s) of credit equals the amount set forth on the most recent Schedule."

The most recent security agreement schedule, dated in 2009, requires a letter of credit in the amount of $2.2 million. That schedule includes the following additional provisions:

"This Schedule, and any amendments, additional Schedules, and updates thereto, are incorporated into and made a part of the [security agreement] entered into between Liberty Mutual and Policyholder .... It is expressly understood and agreed that the amount of collateral ... referenced on this Schedule may be adjusted at the sole discretion of Liberty Mutual to reflect then-current obligations. Policyholder agrees to provide Liberty Mutual with the referenced amounts and any required increases thereto by the Schedule date communicated by Liberty Mutual."

The motion judge determined that Gioioso failed to identify a genuine issue of material fact on its claims that Liberty breached the security agreement or the covenant of good faith and fair dealing implied therein. We agree.

"It is ... elementary that an unambiguous agreement must be enforced according to its terms." Schwanbeck v. Federal-Mogul Corp., 412 Mass. 703, 706 (1992). This is no less true in the insurance context. See Cody v. Connecticut Gen. Life Ins. Co., 387 Mass. 142, 146 (1982). Moreover, "[t]he responsibility of construing the language of an insurance contract is a question of law for the trial judge, and then for the reviewing court." Ibid.

We agree with the motion judge that there is no ambiguity in the security agreement's language conferring "sole discretion" on Liberty to determine the amount of required security. Gioioso was twice informed of this discretion in the plain language of the contract. Accordingly, the motion judge was correct that Liberty's calculation of the security amount-by whatever method it saw fit-could not constitute a breach of the express contract between the parties.

Additionally, we agree that Gioioso failed to identify a genuine dispute of material fact whether Liberty violated the implied covenant of good faith and fair dealing in calculating the security amount. The implied covenant "provides 'that neither party shall do anything that will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract ....' " Anthony's Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 471 (1991), quoting from Drucker v. Roland Wm. Jutras Assocs., 370 Mass. 383, 385 (1976). Accordingly, a misuse of discretion as a means by which to extract concessions from a contract partner may be a breach of the implied covenant. Anthony's Pier Four, 411 Mass. at 473. The scope of the covenant, however, is "only as broad as the contract that governs the particular relationship." T.W. Nickerson, Inc. v. Fleet Natl. Bank, 456 Mass. 562, 570 (2010), quoting from Ayash v. Dana-Farber Cancer Inst., 443 Mass. 367, 385 (2005).

Gioioso submitted two affidavits in opposition to Liberty's motion for summary judgment. The motion judge wrote that "the court has had difficulty in understanding the point being made in the affidavits" but in any event, the fact that one or both of the affiants may have used a method different from Liberty's in calculating the security amount "does not create a triable issue of fact on the question of whether Liberty acted in good faith." Having reviewed the affidavits, we agree that they do not raise a genuine factual dispute as to any issue material to Gioioso's claims.

Here, Gioioso has identified no manner in which it has been deprived of any fruit of its contracts with Liberty, nor has Gioioso suggested in any way that Liberty has used the security agreement to extract a concession from Gioioso. , Accordingly, the judge correctly determined that Liberty was entitled to judgment as a matter of law on Gioioso's claim for breach of the implied covenant.

2. Gioioso's c. 93A claim. The motion judge determined that because Gioioso did not demonstrate a genuine issue of fact on its contract claims, its claim for unfair business practices pursuant to G. L. c. c. 93A, § 11"must also be dismissed." Gioioso argues that a c. 93A claim is sui generis and does not necessarily rise or fall with its contract claims. While this proposition is correct as a general matter, see Kattar v. Demoulas, 433 Mass. 1, 12-13 (2000) ; Gath v. M/A-COM, Inc. v. M/A-Com, Inc., 440 Mass. 482, 498 (2003), it does not help Gioioso here because Gioioso's theories as to how Liberty violated c. 93A are coextensive with its contract theories.

Here, for the same reasons already described, Gioioso failed to establish a dispute of material fact whether Liberty's exercise of its discretion to determine the security amount was an unfair or deceptive practice in the business-to-business context. See Duclersaint v. Federal Natl Mort. Assn., 427 Mass. 809, 814 (1998) ("[A] good faith dispute as to whether money is owed, or performance of some kind is due, is not the stuff of which a c. 93A claim is made"); Giuffrida v. High Country Investor, Inc., 73 Mass. App. Ct. 225, 238 (2008), quoting from Chapter 93A Rights and Remedies § 2.5, at 2-67 (Mass. Cont. Legal Educ. 2d ed. 2007) ("[B]usinesses seeking relief under Section 11 are held to a stricter standard than consumers in terms of what constitutes unfair or deceptive conduct").

3. Liberty's breach of contract claim. Under Gioioso's commercial general liability policy for the year ending in November, 2005, Liberty had the "right and duty to defend the insured against any suits seeking damages." Additionally, the policy stated, Liberty "may, at [its] discretion, investigate any occurrence and settle any claim or suit that may result."

In 2007, the First Baptist Church in Dorchester (First Baptist) sued Gioioso in connection with excavating work Gioioso had performed. Liberty assumed the defense and tried the case, resulting in a jury verdict against Gioioso in the amount of $288,295 plus prejudgment interest. Liberty filed a notice of appeal but then declined to prosecute the appeal, and instead settled the case.

Under the 2004-2005 policy, Liberty claims that Gioioso owes it $112,997 in retrospective premiums in connection with the First Baptist loss. Gioioso does not argue with Liberty's mathematical calculation, but claims it does not owe Liberty any money because Liberty should have pursued the appeal. Liberty, on the other hand, argues that under the relevant policy it had full discretion to settle the First Baptist case.

"Depending upon the reasonable likelihood of success on appeal, the insurer's duty to defend may continue until an appeal has been disposed of." Aetna Cas. & Sur. Co. v. Sullivan, 33 Mass. App. Ct. 154, 157 n.2 (1992). Gioioso argues on the basis of Davis v. Allstate Ins. Co., 434 Mass. 174, 180 (2001), which recites a slightly different formulation of this rule, i.e., that "an insurer's duty to defend generally encompasses an obligation to appeal from an adverse judgment against its insured, but only if reasonable grounds exist to believe the insured's interest might be served by the appeal."

Gioioso's argument that there was an issue of material fact on this point places too much weight on Davis's use of the word "might," and too little on the existence of a reasonable likelihood of success on appeal. Davis relied upon Aetna Cas. & Sur. Co. v. Sullivan, supra, which made clear that "[d]epending upon the reasonable likelihood of success on appeal, the insurer's duty to defend may continue until an appeal has been disposed of." Id. at 157 n.2. An insurer can only be obligated to pursue an appeal where there are "reasonable grounds" for the appeal. Davis, 434 Mass. at 180-181, citing 14 G. Couch, Insurance § 200.48, at 220-118 (3d ed. 1999).

As evidence of reasonable grounds for appeal in the First Baptist case, Gioioso points to three sources: (i) a letter from its own lawyer, Douglas E. Sylvia, advocating for an appeal; (ii) an e-mail from Gioioso's trial lawyer, David R. Cain; and (iii) a letter from Robert A. Curley, Jr., an attorney hired by Liberty to review the trial transcript and make recommendations.

The only viable grounds for appeal articulated in these three communications all relate to the exclusion of certain evidence by the trial judge. Both Curley and Sylvia expressly acknowledged in their letters, however, that the exclusion of evidence is reviewed only for an abuse of discretion and an error in such a ruling will result in a new trial only if it prejudiced the proponent of the evidence. See Lind v. Domino's Pizza LLC, 87 Mass. App. Ct. 650, 663 & n.14 (2015).

Moreover, Cain, the trial lawyer, wrote in his e-mail that "my memory and my notes are that [the trial judge] was careful enough in her rulings ... to survive review." And Curley, the attorney hired by Liberty, opined that only one of five possible evidentiary errors presented a viable issue and the likelihood of getting a new trial based on that single error was less than ten percent. He further advised that an appellate court would most likely hold that the error was harmless.

These communications simply do not establish that a "reasonable ground" existed for an appeal, nor do they create a dispute of fact on the issue. Additionally, Liberty correctly relies on the policy language stating that it "may, at [its] discretion ... settle any claim or suit [resulting from an occurrence]." "We interpret these terms according to the 'fair meaning of the language used, as applied to the subject matter.' " Davis, 434 Mass. at 179, quoting from Bilodeau v. Lumbermens Mut. Cas. Co., 392 Mass. 537, 541 (1984). The fair meaning of this language leaves the matter of settlement entirely to the discretion of Liberty. Nonetheless, however, in exchange for that discretion, Liberty was bound by a reciprocal obligation to act in "good faith." Murach v. Massachusetts Bonding & Ins. Co., 339 Mass. 184, 187 (1959).

In this context, good faith requires that the insurer "exercise common prudence to discover the facts as to liability and damages upon which an intelligent decision may be based." Ibid. It is apparent from the uncontroverted evidence in the record that Liberty exercised common prudence to vet the possibility of an appeal, and that its decision to settle had an intelligent and reasoned basis. That Gioioso disagrees with Liberty's decision does not create an issue of fact regarding whether Liberty exercised its discretion in good faith. Accordingly, Liberty was entitled to summary judgment on count I of its counterclaims.

4. Attorney's fees. Finally, we reach Liberty's cross appeal from the motion judge's denial of its request for an award of attorney's fees and expenses based on the following provision found in the security agreement:

"The Policyholder will pay to Liberty Mutual upon demand, any and all reasonable expenses, including without limitation, reasonable legal fees and expenses and the fees and expenses of any experts and agents which Liberty Mutual may incur in connection with (a) the exercise or enforcement of any of the rights or remedies of Liberty Mutual hereunder and/or (b) the failure by Policyholder to perform or observe any of the provisions hereof."

In interpreting a written contract, "the court gives full effect to all the terms expressed by the parties." Robbins v. Krock, 73 Mass. App. Ct. 134, 138 (2008), quoting from Rogaris v. Albert, 431 Mass. 833, 835 (2000). The words used by the parties will be given their ordinary meaning unless otherwise indicated in the contract document. Ibid. And, fundamentally, "[i]t is not the role of the court to alter the parties' agreement."Ibid.

Liberty's defense of Gioioso's suit fits squarely within the plain language of the contract, which allows recovery of fees and expenses incurred "in connection with" the "exercise or enforcement of any of the rights or remedies of Liberty Mutual hereunder." We reject Gioioso's contention that its status as plaintiff rather than defendant is dispositive of the question. Even though Gioioso complied with the security agreement by posting letters of credit as required, its initiation of a lawsuit claiming that Liberty had violated the agreement by requiring the posting of those same letters forced Liberty to "exercise or enforce" its rights by mounting a defense to Gioioso's claims.

Moreover, the motion judge's more narrow reading of the fee-shifting clause-that it applies only to fees incurred as a result of a breach of the security agreement's terms-would render the provision's second clause, lettered "(b)," superfluous. Because the contract expressly provides in clause (b) for fee-shifting in the event that the policyholder fails to "perform or observe any of the provisions hereof," the prior clause, lettered "(a)," must have a more expansive meaning-extending to the exercise of rights even where the policyholder is not strictly in breach of the security agreement. See DeWolfe v. Hingham Centre, Ltd., 464 Mass. 795, 804 (2012) ("Wherever practicable, we interpret a contract so that every word is given effect").

Accordingly, Liberty is entitled by contract to an award of fees and expenses incurred in connection with its defense of Gioioso's claims. Liberty is not, however, entitled to an award of fees associated with prosecuting its counterclaim regarding the First Baptist litigation, which was an action to enforce its rights under an insurance policy and was not brought in connection with any rights or remedies found in the security agreement. Additionally, Liberty is not entitled to attorney's fees incurred on appeal because it did not request the same in its brief, as required by Fabre v. Walton, 441 Mass. 9, 10 (2004). See Beal Bank, SSB v. Eurich, 448 Mass. 9, 12, 14 (2005) (entitlement to appellate fees is waived if not requested brief, and this rule applies to fees sought under contract as well as fees sought under statute).

The portion of the judgment dismissing count II of the defendant's counterclaim is reversed, and that matter is remanded to the Superior Court for a calculation of reasonable legal fees and expenses incurred in connection with Liberty's defense of this action, exclusive of both (i) fees and expenses incurred in connection with count I of Liberty's counterclaims, and (ii) fees and expenses incurred in connection with this appeal. In all remaining respects, the judgment is affirmed.

So ordered.

Reversed in part; affirmed in part.

      Gioioso also asserted claims for breach of fiduciary duty and injunctive relief, but does not pursue those claims on appeal.

      For each policy year, Gioioso was required to enter a new security agreement or amend the existing security agreement. The most recent security agreement between the parties was executed in 2009 in connection with Gioioso's policy for policy year ending in late 2010. The record reveals no material changes in language among the different versions of the security agreements, and we therefore quote from the most recent security agreement unless otherwise specified. For convenience, we refer collectively to all versions of the security agreement in the singular.

      A summary judgment decision is upheld when it is based on undisputed material facts and is correct as a matter of law. See Currier v. National Bd. of Med. Examrs., 462 Mass. 1, 11 (2012).

      Liberty's inclusion in the security requirement of the $112,000 owed from the earlier, retrospectively rated policy did not breach the security agreement because that document's plain language states that it is intended to secure all of Gioioso's obligations "arising out of or in connection with any and all insurance policies issued to [Gioioso]."

      Gioioso's theory that Liberty somehow gained a broader market advantage by over-reaching on security requirements and then reporting the amount of its collateral on financial disclosure documents is unavailing. As a threshold matter, we agree with the motion judge that Gioioso failed to provide admissible evidence supporting this theory. See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 714 (1991). But even assuming arguendo that Liberty was over-secured and obtained a market advantage because of it, such evidence would have had no tendency to show that Liberty violated the implied covenant of good faith and fair dealing inherent in the particular contracts at issue here. The purpose of the implied covenant "is to guarantee that the parties remain faithful to the intended and agreed expectations of the parties in their performance." T.W.Nickerson, 456 Mass. at 570, quoting from Uno Restaurants, Inc. v. Boston Kenmore Realty Corp., 441 Mass. 376, 385 (2004). "A breach occurs when one party violates the reasonable expectations of the other." Eigerman v. Putnam Invs., Inc., 450 Mass. 281, 287-288 (2007). Here, Liberty's broad discretion to set the amount of the security requirement was apparent from the plain language of the contract. Ibid. Any expectation harbored by Gioioso that Liberty would not exercise its discretion in such a way as to further its business interests would not have been a reasonable expectation. Id. at 289. Thus, Gioioso's claim is not viable here, where: (i) the ulterior motive Gioioso ascribes to Liberty had nothing to do with depriving Gioioso of any benefit of the subject contract, and (ii) Gioioso agreed that Liberty would have sole discretion to set the security amount.

      Gioioso's claim that Liberty improperly offered to accept a letter of credit in a reduced amount on the condition that Gioioso would affirm that the security agreement remains in effect is not properly before the court. The complaint does not include this allegation; the facts related to it did not occur until after October 12, 2012, the date the complaint was filed. Although Gioioso moved to amend its complaint and for class certification in May, 2013, that motion was denied. The record does not reveal what changes were proposed in the motion to amend (other than adding a class-based claim), but Gioioso has not appealed from the denial of the motion to amend in any event. Accordingly, this theory was never properly before the motion judge and is not properly before this court. Moreover, we do not believe Liberty's attempt to preserve the legal status quo as a condition of accepting reduced security after the commencement of litigation has the sort of extortionate or coercive quality that would amount to a violation of the implied covenant or c. 93A.

      We agree with the motion judge that Liberty's failure to inform Gioioso at some earlier point in time that Liberty had applied a liquidation credit to the security amount and would cease doing so if Gioioso stopped buying insurance from Liberty does not change the outcome. The parties' security agreement was clear insofar as it conferred "sole discretion" upon Liberty to calculate the security amount. That Gioioso privately assumed that the required security amount would automatically decline once Gioioso stopped purchasing new policies from Liberty was not the fault of Liberty.

      Gioioso also appeals from the decisions on various discovery motions. Having reviewed the record carefully, we see no abuse of discretion in the judge's handling of the discovery issues. See Solimene v. B. Grauel & Co., K.G., 399 Mass. 790, 799 (1987).

      We need not reach Liberty's argument that it risked liability pursuant to G. L. c. 176D and G. L. c. 93A if it did not settle with First Baptist once liability was reasonably clear.

      Because we find that the language of the security agreement is unambiguous, we need not reach the motion judge's alternative holding that even if the fee-shifting language were ambiguous it would be construed against Liberty.

      Liberty's argument as to an alternative basis for a fee award with respect to count I of its counterclaim is limited to a single paragraph in its brief, which simply provides the relied upon language. This treatment does not rise to the level of reasoned appellate argument and we need not consider it. See K.A. v. T.R., 86 Mass. App. Ct. 554, 567 (2014) ; Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).