text:
    Felix Ramon BENCOSME v. Amanda Liz DOMINGUEZ.
    17-P-553
    Appeals Court of Massachusetts.
    Entered: March 9, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The mother appeals from a judgment entered after trial that, among other things, gave the parties shared legal custody of the child, denied the mother's request to remove the child to Pennsylvania and ordered the child's return to Massachusetts after the 2016-2017 school year, and set alternative parenting schedules depending on whether the mother returned to Massachusetts. On appeal, the mother argues that (1) the judge did not consider all the factors identified in Yannas v. Frondistou-Yannas, 395 Mass. 704, 711 (1985), and (2) the judge abused her discretion when she concluded that it was in the child's best interests to return to Massachusetts. We affirm.

We review a judge's decision regarding the removal of a child for "abuse of discretion or an error of law," accepting the judge's findings unless shown to be clearly erroneous. Id. at 712. "A finding is 'clearly erroneous' only when, 'although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.' " Basis Technology Corp. v. Amazon.com, Inc., 71 Mass. App. Ct. 29, 36 (2008), quoting from Demoulas v. Demoulas Super Mkts, Inc., 424 Mass. 501, 509 (1997). A judge abuses her discretion where she "ma[kes] 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), quoting from Picciotto v. Continental Cas. Co., 512 F.3d 9, 15 (1st Cir. 2008).

Under G. L. c. 208, § 30, as amended by St. 1986, c. 462, § 9, a minor child who is under the "suitable age to signify his consent" cannot be removed from Massachusetts "without the consent of both parents, unless the court upon cause shown otherwise orders." "Cause" in this context means "only that the removal must be in the best interests of the child." Yannas, supra at 711. To determine the best interests of the child, "the first consideration is whether there is a good reason for the move, a 'real advantage.' " Ibid. The judge is then to look at a number of factors "collectively" to determine "the best interests of the child." Id. at 712. "The relevant factors are: (1) whether the quality of the children's lives will be improved, including any improvement that 'may flow from an improvement in the quality of the custodial parent's life'; (2) any possible 'adverse effect of the elimination or curtailment of the child[ren]'s association with the noncustodial parent'; (3) 'the extent to which moving or not moving will affect the [children's] emotional, physical, or developmental needs'; (4) the interests of both parents; and (5) the possibility of an alternative visitation schedule for the noncustodial parent." Murray v. Super, 87 Mass. App. Ct. 146, 150 (2015), quoting from Dickenson v. Cogswell, 66 Mass. App. Ct. 442, 447 (2006). "Every person, parent and child, has an interest to be considered. The judicial safeguard of those interests lies in careful and clear fact-finding ...." Yannas, 395 Mass. at 712. See generally Miller v. Miller, 478 Mass. 642, 648-650 (2017).

The judge identified the correct legal principles and standards in her detailed decision; there is nothing to indicate that she was unaware of the pertinent legal framework. Indeed, on page nine of her decision, the judge explicitly and correctly identified the pertinent factors to be considered and, on pages eight through ten, she correctly stated the governing legal principles. In the following pages of her decision, the judge discussed her rationale for each and every one of the Yannas factors, and included her salient findings as to each. After that, the judge evaluated the real advantage to the mother against the best interests of the child, and concluded that it is not in the child's best interests to be removed to Pennsylvania. In short, the judge's decision reflects both her understanding of the correct legal principles and her reasoning as to each of the Yannas factors.

The mother, however, challenges the judge's decision on the ground that the judge's findings are "inadequate" (nota bene, not "clearly erroneous") in the sense that the judge did not consider all the Yannas factors and, accordingly, that the judge abused her discretion or made an error of law. See Prenaveau v. Prenaveau, 81 Mass. App. Ct. 479, 486 (2012) ("the absence of evidence in support of findings, or the failure of the findings to support the judge's orders will constitute 'an abuse of discretion' and require reversal"). We are not persuaded. As to some of the specific matters about which the mother complains there was no finding, the judge cannot be criticized where the mother did not introduce evidence on the point. As to others, the evidence was conflicting, and it was for the judge to resolve which evidence she credited and how to weigh it.

It is true, as the mother argues, that "[a]n evaluation of the best interests of the child requires attention to whether the quality of the child's life may be improved by the change (including any improvement flowing from improvement in quality of custodial parent's life)." Yannas, supra at 711. This is because "the best interests of a child are so interwoven with the well-being of the custodial parent." Id. at 710, quoting from Cooper v. Cooper, 99 N.J. 42, 54 (1984). Often, the positive impact on the custodial parent will result in a positive impact on the child. See, e.g., Williams v. Pitney, 409 Mass. 449, 455 (1991) (finding financial stress and unhappiness of custodial parent in not being allowed to move "would adversely affect the children"); Miller, supra at 656 (finding that improvement in custodial parent's financial and social status would improve lives of children). It is also-equally true that the judge did not make an explicit finding about whether the benefit to the mother of moving to Pennsylvania resulted in improvement to the child or to what degree. However, it does not follow that the judge failed to consider the matter. Indeed, it is clear from the judge's rationale and other findings that she acknowledged the significant financial and other benefits to the mother of the move to Pennsylvania. However, the judge thought they were only part of the picture of important factors to be considered from the perspective of the child and, moreover, they did not outweigh the benefits to the child of remaining in Massachusetts.

Finally, the mother argues it was an abuse of discretion to deny her request to remove the child to Pennsylvania. Although the mother presented evidence to show that she obtained real and concrete benefits for herself and the child when she moved to Pennsylvania, it remained within the judge's discretion-after assessing the credibility of the witnesses, the weight of the evidence, and the interests of all parties-to conclude that it was in the child's best interests not to be removed from Massachusetts. The judge was entitled to credit the father's testimony regarding his pre-removal involvement in the child's life and to the positive changes in his circumstances, to give weight to the importance of the child's relationships with her extended family, to the child's expressed wish to remain in Massachusetts, and to the strain and stress on the child of traveling thirteen hours round trip every other weekend to Massachusetts. See, e.g., Dickenson, 66 Mass. App. Ct. at 449. The judge's conclusion that there were "clear and significant negative effects on the child and [f]ather which are not outweighed by the benefits that would inure to [m]other" cannot be said to lie outside the range of permissible conclusions.

For the reasons set out above, the order denying the motion to remove the child is affirmed.

So ordered.

Affirmed.

      The language applies with equal force to a child who, like the child here, is born out of wedlock with two legal parents. See Smith v. McDonald, 458 Mass. 540, 546 (2010).

      For this reason, no finding was required regarding the child's relationship with the mother, how that relationship would be affected whether the child was removed or not, and the ease or availability of alternate forms of interstate travel.

      Thus, although there was evidence of greater financial means and structure in the mother's new household in Pennsylvania, there was also evidence that the child had experienced change and disruption as a result of the mother's unilateral removal from Massachusetts. For example, the mother admitted that the child had switched schools three times in three years. These differences were for the judge to reconcile as the finder of fact, and she was not required to make a finding based on the mother's view of the evidence. Similarly, it was for the judge to determine what weight to give to the child's relationship with her extended family in Massachusetts.

      We note that circumstances may change or evolve going forward and that the mother may at that time seek a modification of the current order if there is a material change in circumstance.


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. Sean MACDONALD
    17-P-781
    Appeals Court of Massachusetts.
    Entered: March 21, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Sean MacDonald, appeals from his conviction of operating a motor vehicle while under the influence of liquor, third offense, G. L. c. 90, § 24. He argues that a police officer's testimony that, in his "professional opinion," the defendant "was impaired" was testimony on the defendant's guilt, and that there was insufficient evidence of intoxication and diminished capacity to operate a motor vehicle safely.

The officer's testimony that it was his "professional opinion" that the defendant "was impaired" was not testimony on the defendant's guilt. See Commonwealth v. Canty, 466 Mass. 535, 544 (2013) (lay witness may opine on defendant's level of sobriety). Even assuming it was some other kind of error, it was not objected to, and there was no substantial risk of a miscarriage of justice given the overwhelming evidence of intoxication and diminished capacity, including, but not limited to: the defendant's inability to "maintain[ ] the right hand lane" while driving; an overwhelmingly strong odor of alcohol coming from the vehicle and the defendant's breath; the defendant's slow, exaggerated movements and unsteadiness on his feet; the defendant's extremely slurred speech; the defendant's initial incredulity when the officer informed him he had been driving without a tire on one of his rims, and his subsequent statement that he had no idea where the tire went; the defendant's repeated admissions that he had been drinking alcohol all night; and the defendant's inability to recite the alphabet beyond the letter F and the numbers from seventy-seven to ninety-three. The evidence, viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979), was sufficient to support the conviction.

Judgment affirmed.

      The defendant concedes that the evidence showed he was operating a motor vehicle on a public way.


text:
    COMMONWEALTH v. Edy H. ORELLANA.
    17-P-316
    Appeals Court of Massachusetts.
    Entered: March 20, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant was tried before a District Court jury on various charges including breaking and entering in the nighttime with intent to commit a felony, strangulation, larceny, and multiple violations of an abuse prevention order. He was convicted on a single count of violation of the abuse prevention order, on a single date. The defendant testified at trial, and he conceded being at the residence specified in the order on the date in question. He now appeals, claiming various errors by the prosecutor and trial judge. We affirm.

1. Background. We recount those facts the jury could reasonably have found, as they are relevant to the charge of violating the restraining order.

On June 23, 2015, Jane obtained a G. L. c. 209A abuse prevention order against the defendant, who is her former boy friend and the father of one of her children. The restraining order was for one year, not expiring until June 23, 2016. The restraining order provided that the defendant was to stay fifty yards away from Jane, even if she "seems to allow or request contact." The defendant was also ordered to stay away from a specific address, which was Jane's residence. At trial, Jane testified that the defendant was in court when the restraining order issued on June 23, 2015, and the defendant testified that he was served with the restraining order and aware of its specific terms.

The key events that were the subject of trial occurred in the evening of July 28, 2015. Both Jane and the defendant testified, and both recounted that the defendant showed up that night at the address identified in the order, which was Jane's residence. Both also testified that they spoke at the residence that evening, and that Jane, at least, was upset. After Jane and the defendant spoke, Jane left the apartment and called 911. The police arrived shortly thereafter. The defendant saw the police from the apartment, and left down the apartment building's back staircase because, in his words, he "didn't want to get in trouble with the police." When he reached the bottom of the staircase he remained there, which is where the police found him, "sweating" and "out of breath." The defendant testified that he changed his mind and decided to remain on the grounds because he wanted to talk to the police-because, in his words, he had "done nothing wrong."

Following a jury trial, the defendant was found guilty of one charge of violating an abuse prevention order, in violation of G. L. c. 209A, § 7, for the date of July 28, 2015. This appeal followed.

2. Discussion. The defendant asserts three separate errors during trial, which he contends require reversal of his conviction. At the outset, however, we note that the elements of the crime of violating the restraining order were essentially conceded; the defendant took the stand and testified that he had notice of the order and its terms, and that he was inside the residence identified in the order and spoke directly to Jane on the night in question. Those facts satisfy the essential elements of the crime. See Commonwealth v. Rauseo, 50 Mass. App. Ct. 699, 704-705 (2001).

The defendant first argues that one of the prosecutor's questions on cross-examination to the defendant-"So rather than speak with officers and explain to them what had happened, you decided to go down the back of the building with [Jane's] purse and wait there until they came to you?"-infringed upon his right not to incriminate himself. The question was proper; it was not a comment on a decision by the defendant to remain silent, but rather was appropriate cross-examination in direct response to the defendant's own testimony that because he believed he had done nothing wrong, he had made the deliberate decision to talk to the police. See Commonwealth v. Hunt, 50 Mass. App. Ct. 565, 567-568 (2000). Furthermore, even if we were to assume that the question was improper, given the evidence of guilt, the jury's verdicts on the other charges, and the judge's instructions, there was no "substantial risk of a miscarriage of justice" here. Commonwealth v. Letkowski, 469 Mass. 603, 617 (2014).

Nor was there any abuse of discretion in the judge's decision to give a consciousness of guilt instruction based upon the defendant's flight down the back stairs. See Commonwealth v. Morris, 465 Mass. 733, 737-739 (2013). There was abundant evidence to justify the instruction; the defendant fled the apartment, and he testified that he did so to avoid the police.

Finally, the defendant complains about a sentence in the prosecutor's closing argument where, in responding to the defense's assertions that Jane had fabricated her version of the events that evening, the prosecutor attempted to bolster Jane's credibility by pointing out that she came "in here and testif[ied] under the pains and penalties of perjury."

Arguing that an alleged victim should be viewed as credible because she was willing to testify was improper under Commonwealth v. Beaudry, 445 Mass. 577, 587-588 (2005). There was no objection at the time, however, and there is no substantial risk of a miscarriage of justice here. The evidence of the restraining order violation was not dependent on Jane's testimony. Moreover, the improper statement was one sentence of a lengthy paragraph of argument that was otherwise proper, where the prosecutor argued that Jane's actions in seeking and enforcing the restraining order against the defendant were consistent over an extended period of time. The otherwise proper context may well be why the sentence did not draw an objection in the first place. See Commonwealth v. Degro, 432 Mass. 319, 326 (2000).

Judgment affirmed.

      A pseudonym.

      Though both Jane and the defendant testified to an understanding that the restraining order permitted the defendant to have contact with Jane about her children, the order as it issued on June 23, 2015, did not so state.

      The c. 209A order was in effect on July 28, 2015.

      The defendant's trial contention was that Jane had concocted the entire situation as revenge because of the defendant's infidelity. The defendant testified he received a text message from Jane, earlier in the evening of July 28, 2015, to the effect that their infant daughter had fallen and hurt her head. He also told the police about the text. The defendant testified that he had gone to the apartment to check on his daughter.


text:
    COMMONWEALTH v. Alexander ECHEVARRIA.
    17-P-419
    Appeals Court of Massachusetts.
    Entered: March 20, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   An Essex County grand jury returned indictments charging the defendant with numerous offenses including three counts of assault and battery by means of a dangerous weapon causing serious bodily injury (ABDW/SBI), in violation of G. L. c. 265, § 15A(c )(i). The charges stemmed from the shooting of Mark Daniels on March 10, 2016. The defendant moved to dismiss two of the three ABDW/SBI indictments, contending that they are duplicative and thus prosecution is barred under the double jeopardy clause of the Fifth Amendment to the United States Constitution. A judge of the Superior Court allowed the defendant's motion, and the Commonwealth sought leave to pursue an interlocutory appeal. See Mass.R.Crim.P. 15 (a)(2), as appearing in 422 Mass. 1501 (1996). A single justice of the Supreme Judicial Court granted the Commonwealth's petition and reported the case to this court. For the reasons that follow, we conclude that the indictments must be reinstated.

Background. We briefly summarize the evidence before the grand jury. The defendant, Daniels, and a number of friends were on the front porch of a building in the city of Lynn "smoking weed" and talking when a dispute arose over the defendant's claim that Daniels owed him money for two ounces of marijuana. During the course of the argument, the defendant left the front porch and obtained a firearm from within the building. Upon returning to the group on the porch, the defendant stood approximately seven feet away from Daniels and stated: "You think I am playing?" The defendant then pulled out the firearm and fired a shot that struck Daniels in the leg. Daniels immediately began screaming from the pain. The defendant paused and looked around at the people present. He then fired two more shots, hitting Daniels on the right and left sides of his chest, before fleeing from the scene. The shooting occurred in a matter of seconds.

Daniels suffered life-threatening injuries. Viewing the evidence before the grand jury in the light most favorable to the Commonwealth, see Commonwealth v. Levesque, 436 Mass. 443, 444 (2002), there was probable cause that the shooting resulted in "serious bodily injury" as defined by the statute. See G. L. c. 265, § 15A(d ).

Discussion. As noted, the defendant moved to dismiss two of the three ABDW/SBI indictments as duplicative. Following a hearing and review of the grand jury testimony, the motion judge agreed with the defendant that the indictments in question are duplicative because, as the motion judge explained in his memorandum of decision, "the defendant cannot be prosecuted for three charges of ABDW/SBI based on one victim and three shots fired in immediate succession as part of one altercation."

The Commonwealth argues that the judge's order should be vacated and the indictments reinstated for two reasons. First, it claims that the judge usurped the function of the petit jury when he concluded that the defendant's alleged conduct constituted one continuing offense because the shots were fired in "immediate succession." Second, the Commonwealth asserts that the judge violated the separation of powers by dismissing indictments that are supported by probable cause.

At this juncture, we need not decide whether the judge's decision to dismiss the indictments usurped the function of the petit jury or violated art. 30 of the Massachusetts Declaration of Rights. Rather, the question is whether the evidence presented to the grand jury met the threshold requirement of establishing probable cause to believe that the defendant committed three separate and distinct acts, so as to factually support three counts of ABDW/SBI.

"Probable cause requires sufficient facts to warrant a person of reasonable caution in believing that an offense has been committed." Levesque, supra at 447. As the Commonwealth notes in its brief, this calls for "something definite and substantial, but not a prima facie case of the commission of a crime, let alone a case beyond a reasonable doubt." Commonwealth v. Bond, 375 Mass. 201, 210 (1978). Here, the grand jury was presented with sufficient evidence to support a finding of probable cause that the defendant committed the crimes as charged. In other words, because a person of reasonable caution could believe that each firing of the gun constituted a separate act, the motion judge erred in dismissing two of the three ABDW/SBI indictments.

We wish to add that, should this case proceed to trial, nothing in our conclusion should be interpreted to mean that the trial judge is precluded from allowing a motion for a required finding of not guilty in the event the Commonwealth fails to prove the defendant committed three separate and distinct acts beyond a reasonable doubt. In addition, the trial judge may vacate one or more convictions to prevent multiple punishments should the defendant be found guilty of three counts of ABDW/SBI based on evidence that does not support multiple convictions as a matter of law. However, because dismissal of the indictments at this point in the proceedings was not warranted, we vacate the order dismissing indictments ESCR2016-302-003 and ESCR2016-302-004 and remand the matter to the Superior Court for further proceedings consistent with this decision.

So ordered.

Reversed and remanded.

      The defendant also was indicted on one count of armed assault with intent to murder, in violation of G. L. c. 265, § 18(b ), and one count of carrying a firearm without a license, in violation of G. L. c. 269, § 10(a ).

      Five witnesses testified before the grand jury. Four of them, Maliek Bennett, Tyler McFadden, Keenan Benton, and Isaiah Davis, were friends of Daniels. Bennett and McFadden were present when the shooting took place and they related their own observations. The fifth witness, Lieutenant Thomas Reddy of the Lynn police department, testified to various aspects of the investigation including his interview with Daniels.

      Specifically, the testimony about the timing was that one or two seconds passed between the first shot and the second two shots.

      The defendant did not dispute that the indictments were supported by probable cause.

      In reaching his conclusion, the judge relied on a decision issued by another Superior Court judge in an unrelated case, Commonwealth v. Downs. The motion judge's reliance on Downs was misplaced for a number of reasons, but primarily because in that case the issue of duplicative convictions arose after the jury had returned a guilty verdict. Thus, unlike the circumstances presented here, jeopardy had attached thereby requiring the judge to engage in a different analysis. See note 7, infra.

      During the hearing on the defendant's motion to dismiss, the prosecutor stated that, at trial, the Commonwealth would introduce additional evidence including testimony that the firearm in question, a Smith & Wesson M & P 9 millimeter, is not automatic and each shot requires a separate pull on the trigger. The prosecutor also stated that the Commonwealth would introduce medical evidence regarding the three wounds, to demonstrate the track and specific effects of each bullet.

      "The question whether factual allegations within multiple indictments adequately charge separate [offenses] so as to permit their prosecution is one of fact and law and dependent on the particulars in each case. The question is one that, in the first instance, may be for the motion or trial judge in the context of a motion to dismiss and, should the case proceed to trial, is a factual question that a properly instructed jury must decide. In any event, after a jury verdict of guilty on multiple convictions, and on the request of defense counsel for a judgment notwithstanding the verdict, 'a judge also must determine whether the convictions violate the defendant's rights' under the principles of double jeopardy." Commonwealth v. Dykens, 473 Mass. 635, 645 (2016), quoting from Commonwealth v. Suero, 465 Mass. 215, 222 (2013).


text:
    QUINCY MUTUAL FIRE INSURANCE COMPANY v. David GOFF & others.
    17-P-730
    Appeals Court of Massachusetts.
    Entered: March 20, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Matthew Lavoie, Richard J. Lavoie, and Barbara S. Lavoie.

   The defendants appeal from a judgment entered following a jury-waived trial declaring that Quincy Mutual Fire Insurance Company (Quincy Mutual) has no obligation to defend or indemnify Jeoung F. Kim (Kim) with respect to claims asserted against him by David Goff for injuries Goff sustained when punched by Kim. We affirm.

Goff filed an amended complaint in the underlying tort action against Kim, Matthew Lavoie, Barbara S. Lavoie, and Richard J. Lavoie. The amended complaint alleges that on August 9, 2009, while at a party at the Lavoies' house, Kim struck Goff in the face with his fist, causing Goff serious and permanent injuries. Kim's father, Kyung Kim, was insured under a homeowners policy, and under a "personal umbrella liability endorsement" to that policy, issued by Quincy Mutual. In 2014, after being notified of the incident and pending lawsuit, Quincy Mutual filed a complaint seeking a declaratory judgment that it had no obligation to defend or indemnify Kim with respect to claims asserted by Goff arising out of the incident.

We review the trial judge's findings of fact for clear error and review de novo rulings on questions of law. See Martin v. Simmons Properties, LLC, 467 Mass. 1, 8 (2014). "A finding of fact by the trial judge will not be deemed clearly erroneous unless the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." White v. Hartigan, 464 Mass. 400, 414 (2013) (quotation omitted). The interpretation of an insurance contract presents an issue of law for the court. Jefferson Ins. Co. of N.Y. v. Holyoke, 23 Mass. App. Ct. 472, 475 (1987).

On the basis of credible testimony by three witnesses, the trial judge found that Kim delivered three closed-fist punches to Goff's face, knocking him unconscious and causing him to strike his head on the pavement as he fell to the ground. Goff suffered serious injuries, including a fractured face, jaw, and skull, and developed a seizure disorder. The judge made specific and detailed findings that the incident was not an accident or an act of self-defense, but that Kim intentionally, without provocation, struck Goff in the face with the purpose of causing him injury.

The homeowners policy at issue here provides for coverage to an insured for bodily injury resulting from an "occurrence." An "occurrence" is defined as "an accident ... which results ... in 'bodily injury.' " Personal liability coverage does not apply to " 'bodily injury' ... [w]hich is expected or intended by the 'insured,' " nor does it apply to " 'bodily injury' ... [a]rising out of ... physical ... abuse." The personal umbrella liability endorsement also covers bodily injuries resulting from an occurrence. Under the umbrella coverage, an "occurrence" is likewise defined as "an accident ... which results ... in ... '[b]odily injury.' " Coverage is excluded for bodily injury arising out of "criminal acts," or "an act which is expected or intended by an 'insured' to cause 'bodily injury.' " Since Kim was the perpetrator of an intentional attack, the judge concluded that the defendants did not prove the incident was an "occurrence" within the meaning of the policy and that coverage was precluded pursuant to the exclusions in the policy and endorsement.

The defendants argue that because Kim did not specifically intend to cause the harm to Goff that resulted when his head hit the pavement, and it was not substantially certain that such harm would occur from punching Goff in the face, the injuries resulted from an accident and are not excluded by the intentional act provisions of the homeowners policy and umbrella endorsement. The argument fails. The Supreme Judicial Court has observed that the very nature of some acts carry with them an intent to cause harm as a matter of law. See Worcester Ins. Co. v. Fells Acres Day Sch., Inc., 408 Mass. 393, 401 (1990). "[R]eason mandates that from the very nature of the act, harm to the injured party must have been intended." Id. at 400, quoting from United States Fid. & Guar. Co. v. American Employer's Ins. Co., 159 Cal. App. 3d 277, 291 n.9 (1984). See Newton v. Krasnigor, 404 Mass. 682, 685 (1989) ("The insured need not intend to cause the exact extent of the injury which results, in order for the exclusion to apply"); Terrio v. McDonough, 16 Mass. App. Ct. 163, 169 (1983) ("[I]t is self-evident that if a person is pushed down a flight of stairs it is to be expected that a person will be hurt"); Liberty Mut. Fire Ins. Co. v. Casey, 91 Mass. App. Ct. 243, 250 (2017) ("[B]ecause [the defendant] intended to commit the inherently harmful act, his subjective intent as to the degree of injury he intended to cause is irrelevant").

The judge did not err in concluding that Kim intended to strike Goff and that Goff's injuries were a direct result of the attack. Likewise, there was no error in the judge's conclusion that Kim's attack was excluded from coverage and that Quincy Mutual had no duty to defend or indemnify him.

Judgment affirmed.

      As Kyung Kim's son and a resident of his home, Kim was an "insured" pursuant to the terms of the homeowners policy.

      The cases the defendants rely on do not involve Massachusetts law and in any event differ in procedural posture from the present matter. See Breland v. Schilling, 550 So.2d 609 (La. 1989) (appeal after jury trial finding that insured did not intend bodily injury); Desselle v. St. Paul Ins. Co., 688 So.2d 1080, 1081 (La. Ct. App. 1996) (affirming summary judgment denying coverage for injuries resulting from intentional punches, but suggesting possibility that injuries sustained in fall following punches might present triable question of fact).


text:
    COMMONWEALTH v. Luis MEDINA.
    16-P-1593
    Appeals Court of Massachusetts.
    Entered: March 19, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Also known as Lino Rosa Alamos.

   The defendant, Luis Medina, appeals from his conviction of trafficking in a controlled substance (cocaine). G. L. c. 94C, § 32E(b ). We discern in the defendant's various claims of error no cause to disturb the judgment, and affirm.

The defendant contends that the Commonwealth failed to present sufficient evidence that the defendant had knowledge and control of the substance found in a secreted hide in the vehicle he was driving. When reviewing the denial of a motion for a required finding of not guilty, "we consider the evidence introduced at trial in the light most favorable to the Commonwealth, and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Oberle, 476 Mass. 539, 547 (2017), citing Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). "The inferences that support a conviction 'need only be reasonable and possible; [they] need not be necessary or inescapable.' " Commonwealth v. Waller, 90 Mass. App. Ct. 295, 303 (2016), quoting from Commonwealth v. Woods, 466 Mass. 707, 713 (2014).

The trooper's discovery of the secreted cocaine in the vehicle driven by the defendant, without more, would not have been sufficient to prove the defendant's knowledge and control over the substance. In the present case, however, additional factors, considered in context, combine to support an inference that the defendant possessed both knowledge and control over the drugs and cash found in the hide.

The vehicle was registered in the name of a friend from whom the defendant claimed to have borrowed it while the friend was away in Puerto Rico. The defendant's exclusive and continuous use of the vehicle while his friend was in Puerto Rico supported the inference that he, rather than the friend, possessed the drugs and cash found in the hide. The hide contained an excess of $1,160 in contraband and cash, and the jury could reasonably have inferred that someone would not have lent their vehicle and gone to Puerto Rico with that amount of contraband and money still hidden inside. See Commonwealth v. Sinforoso, 434 Mass. 320, 329 n.6 (2001).

Moreover, the trooper also detected a very strong scent of air fresheners from within the vehicle, suggesting (based on the trooper's experience) that they were being used to mask the scent of contraband from drug sniffing canines. The present strong scent of air fresheners supports an inference that they were currently being (or had very recently been) used for that purpose, further reducing the likelihood that the defendant's friend had secreted the drugs and cash in the hide before lending the vehicle to the defendant and leaving for Puerto Rico, without informing the defendant of the presence and contents of the hide. Considered together, and in further combination with the defendant's nervousness, and his evasive and inconsistent statements about where he was going and from where he was coming, these factors were sufficient to support an inference that the defendant had knowledge and control of the contraband and cash recovered from the hide.

The defendant also contends that the primary chemist's testimony reciting, according to the defendant, the contents of the certificates of analysis was inadmissible hearsay. The defendant mischaracterizes the chemist's testimony. The chemist testified that after conducting definitive tests on the unknown substance in the thirteen bags seized from the hide, he found the substance to be cocaine. The certificates of analysis, which contained the complete results of all tests, including those performed by a second chemist, were not admitted in evidence. The primary chemist only referred to the certificates to refresh his recollection. His testimony did not refer to the second chemist's opinion, but was based the tests he conducted and his own conclusions. This was not hearsay. The jury could reasonably have inferred that the primary chemist meant his own determination, not the second chemist's, when he said the substance was found to contain cocaine. Thus, the primary chemist's testimony was not hearsay, and its admission was not error. See Commonwealth v. Johnson, 410 Mass. 199, 202 (1991).

The defendant assigns error to the prosecutor's statement during closing argument that the substance was "without a doubt" cocaine. Because the defendant did not object to the statement in the closing argument, he is entitled to relief only if the statement was improper and created a substantial risk of a miscarriage of justice. See Commonwealth v. Staines, 441 Mass. 521, 535 (2004). In order to determine whether remarks made by the prosecutor during closing argument are improper, the court considers the remarks "in light of the entire argument, the judge's instructions, and the evidence at trial." Commonwealth v. Burns, 49 Mass. App. Ct. 677, 679 (2000). Contrary to the defendant's contention, the prosecutor's statement was grounded in evidence elicited during the primary chemist's testimony that, based on his definitive testing, the substance was cocaine. The prosecutor's statement that the substance was "without a doubt" cocaine was a reasonable inference the jury could have properly drawn from the evidence at trial. At most the prosecutor's remark was a minor misstatement and the trial judge's instructions to the jury would have mitigated any prejudice that could have arisen. See Commonwealth v. Maynard, 436 Mass. 558, 571 (2002).

The trial judge's decision to admit two of the defendant's defaults was not prejudicial, as the defendant contends. Evidence of flight may be admitted at trial to suggest consciousness of guilt. See Commonwealth v. Booker, 386 Mass. 466, 469 (1982). There was no abuse of discretion in the judge's finding that the probative value of the defendant's defaults outweighed the risk of unfair prejudice, particularly where the Commonwealth provided sufficient evidence of the defendant's knowledge of the court dates. The judge's instructions to the jury that they were not required to draw inferences of guilt from the defendant's defaults unless supported by all the evidence, that innocent reasons for the defaults may exist, and that evidence of consciousness of guilt is not sufficient by itself to convict the defendant, all combined to diminish any prejudice caused by the admission of the defaults.

Finally, the trial judge properly allowed the defendant's trial to proceed to a jury after conducting a thorough colloquy with the defendant, where the defendant made an informed decision and withdrew his previous written waiver of his right to a jury trial. Furthermore, unlike the right to a jury trial, the defendant does not have a constitutional right to a trial without a jury. See Commonwealth v. Francis, 450 Mass. 132, 134 (2007), citing Singer v. United States, 380 U.S. 24, 26 (1965).

Judgment affirmed.

      Based on the amounts and prices of cocaine sold in 2001.

      The jury also could have inferred, based on the testimony of a different trooper, that the defendant owned the vehicle himself, despite its registration in the name of another person, because the amount of cocaine was consistent with distribution and it is common for drug dealers to register their vehicles in others' names to avoid detection by law enforcement.


text:
    K.E.H. v. B.M.G.
    17-P-496
    Appeals Court of Massachusetts.
    Entered: March 19, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The plaintiff, K.E.H., appeals from an order denying her motion to reconsider her motion to vacate an amended judgment entered in December, 2005, on a complaint for modification (amended judgment). The plaintiff contends that (1) the amended judgment is void because it entered without notice to her in violation of her due process rights, and (2) the judge erred in finding that there was no evidence supporting the plaintiff's claim that the docket sheet had been tampered with. We affirm.

Background. The plaintiff and the defendant, B.M.G., were never married but have two children together. On December 24, 1999, a judgment entered ordering the defendant to pay the plaintiff $258 per week in child support. On April 20, 2005, a judgment entered on the plaintiff's complaint for contempt, finding that the defendant was in arrears on his child support obligation but that he was unable to pay the $258 weekly obligation. There was, however, no change to the defendant's child support obligation at that time.

On July 7, 2005, following a hearing, the judge issued a modified judgment (modified judgment). Finding that the defendant remained in arrears, the judge ordered that the defendant pay $128 per week in child support, with the $130 per week balance to accrue. The modified judgment also set forth a September 29, 2005, compliance review date and provided that the plaintiff, who lived in Florida at all relevant times, need not appear. The docketed copy of the judgment reflects that the clerk's office sent the plaintiff a copy. This is the first of several communications the plaintiff claims she did not receive.

After the modified judgment issued but before the September 29, 2005, compliance review date, the defendant, on August 5, 2005, filed a motion for reconsideration of the modified judgment in which he sought clarification of the arrearages attributable to him. The motion's certificate of service certified that the defendant served the motion on the plaintiff by delivery to her Florida address via United States Postal Service. The plaintiff denies receiving a copy of this motion.

At the September, 2005, compliance hearing, at which the plaintiff did not appear, the judge dismissed the defendant's motion for reconsideration without prejudice, setting it down for reconsideration on December 28, 2005. The docket reflects that the clerk's office also mailed a copy of this order (which reflected the new hearing date) to the plaintiff's Florida residence. The plaintiff denies receipt of this order as well.

The plaintiff did not appear at the December, 2005, hearing. However, on the basis of the various notices that had been mailed to the plaintiff's residence, the judge found that the plaintiff was on notice of the hearing, and he issued the amended judgment in which he reduced the defendant's weekly child support obligation to $128 per week and created a payment plan to address the past-due child support. The plaintiff also denies receipt of the amended judgment.

Eight years later, on September 3, 2013, the plaintiff filed a motion to vacate the amended judgment, on the grounds that she was not notified of the modified judgment and did not receive any of the subsequent notices, orders, and judgments, and therefore, judgment had entered in violation of her right to due process. The judge denied the plaintiff's motion, finding that she had notice of the hearing dates and judgment. The plaintiff filed a motion for reconsideration, which the judge also denied. This appeal followed.

Discussion. We review the judge's denial of the plaintiff's motion for reconsideration for an abuse of discretion. Piedra v. Mercy Hosp., Inc., 39 Mass. App. Ct. 184, 188 (1995).

The plaintiff contends that the judge committed clear error in finding that she received notice of the modified judgment (which was the judgment initially reducing the defendant's support payments) and the subsequent hearing dates and judgments. She claims that the defendant and the clerk did not mail any communications to her and that the docket sheets and docketed filings reflecting otherwise were tampered with. We are not persuaded. Aside from these self-serving accusations, which the judge was free to discredit, see Commonwealth v. Espada, 450 Mass. 687, 702 n.17 (2008), we see no evidence in the record to rebut the docket sheet's presumption of regularity. See Commonwealth v. Podoprigora, 46 Mass. App. Ct. 928, 929 (1999), and cases cited. Accordingly, we conclude the judge's finding that the plaintiff received notice of the judgments is not clearly erroneous. See Mass.R.Dom.Rel.P. 52(a).

We also are not persuaded by the plaintiff's assertions that, even if mailed to her home, these communications did not reach her residence. The record reflects that the modified judgment (which included the defendant's new child support payment amount and notice of the September, 2005, compliance review date), the defendant's August 5, 2005, motion to amend the modified judgment, the order dismissing the defendant's motion without prejudice and setting it down for reconsideration in December, 2005, and the judgment were all deposited in the mail for delivery to the plaintiff's residence. The plaintiff does not deny residing at the address to which these communications were addressed but rather asserts the post office does not deliver to her residence. However, these claims are also unsubstantiated, and the judge could properly find that the letters were delivered as addressed. Commonwealth v. Crosscup, 369 Mass. 228, 239 (1975). Accordingly, we conclude, as did the judge, that the plaintiff was not denied due process, particularly where the judge found it incredulous for someone as heavily invested in the outcome of the litigation as the plaintiff was to wait eight years to assert lack of notice. Cf. Andover v. State Fin. Servs., Inc., 432 Mass. 571, 574-576 (2000) (judge correctly denied due process claim premised on lack of notice when notice was mailed and "recipient's own passivity" impeded delivery).

Furthermore, not every notice defect results in a due process violation that voids the judgment. See Solimeno v. State Racing Commn., 400 Mass. 397, 406 (1987) ("[E]ven if notice was defective, the plaintiffs have demonstrated no prejudice"). Here, the plaintiff was not prejudiced by the proceedings resulting in the reduction in the defendant's child support obligation. See White v. Laingor, 434 Mass. 64, 67 (2001) (child support orders must be "fair and reasonable"). See also Poras v. Pauling, 70 Mass. App. Ct. 535, 541-542 (2007) (child support obligor must have "present ability to pay" to be in contempt). The plaintiff was on notice even before the modified judgment issued that the judge had found the defendant unable to pay the $258 weekly child support obligation, and that the appropriateness of that obligation was at issue in the July 6, 2005, hearing. Id. at 542. Accordingly, we perceive no error.

Order dated December 17, 2015, denying motion for reconsideration affirmed.

      The plaintiff's notice of appeal specifies only the denial of the motion to reconsider as the order from which an appeal is taken. See Mass.R.A.P. 3(c), as appearing in 430 Mass. 1602 (1999).


text:
    Akiko NISHIYAMA v. Ranbir DHILLON.
    17-P-1041
    Appeals Court of Massachusetts.
    Entered: March 19, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The wife, Akiko Nishiyama, appeals from a judgment of divorce nisi and a judgment declining to find the husband, Ranbir Dhillon, in contempt. We affirm.

Background. The judge found the following facts. In November, 2013, the wife filed for divorce. The husband responded with a counterclaim for divorce in January, 2014. Before either party had filed for divorce, the husband had filed a complaint for custody, seeking custody of the parties' three children and an emergency order prohibiting the wife from removing the children to her native Japan. In April, 2014, the judge issued temporary orders providing that the husband pay, among other things, the costs of school and daycare for their children, insurance and registration for the wife's car, and $750 per week to the wife for child support. Between September, 2014, and July, 2015, the wife filed four complaints for contempt alleging that the husband failed to make "various payments." These complaints were consolidated with the divorce complaints and the husband's custody complaint, and a trial was held on days in October, 2015, and January, 2016.

At trial, a court-appointed guardian ad litem (GAL) testified and was cross-examined by the wife, and the GAL's report was admitted in evidence over the wife's objection. After trial, a judgment of divorce nisi entered on March 23, 2016. That same day, the judge, after reviewing evidence submitted by the wife, determined that the husband did not wilfully fail to make payments to the wife, and thus a judgment entered finding him not in contempt.

Discussion. On appeal, the wife primarily contests a number of the judge's findings of fact. A judge's factual findings will "not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." Mass.R.Dom.Rel.P. 52(a). "A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Barboza v. McLeod, 447 Mass. 468, 469 (2006), quoting from Marlow v. New Bedford, 369 Mass. 501, 508 (1976).

We note at the outset that the wife has failed to provide this panel with the trial transcripts and all but a very few trial exhibits, thus leaving us with a wholly inadequate record on which to review her claims. See Shawmut Community Bank, N.A. v. Zagami, 30 Mass. App. Ct. 371, 372-373 (1991), S.C., 411 Mass. 807 (1992). Moreover, the wife's allegations lack supporting citation to the record or to legal authority. See Kellogg v. Board of Registration in Med., 461 Mass. 1001, 1003 (2011), citing Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). While we recognize that the wife is self-represented, she is nonetheless required to comply with the Massachusetts Rules of Appellate Procedure. See Brossard v. West Roxbury Div. of the Dist. Ct. Dept., 417 Mass. 183, 184 (1994).

Furthermore, on the record presented to us, we see nothing to indicate that the judge's findings were clearly erroneous; even assuming the wife has correctly identified some minor inaccuracies, she has not shown how they were material or prejudicial. The judge heard testimony from seven witnesses and reviewed fifty-two exhibits when making her extensive findings of fact. Moreover, she made findings as to all of the statutory factors set forth in G. L. c. 208, § 34, which she considered when crafting the division of property and determining alimony. See Adams v. Adams, 459 Mass. 361, 371 (2011). The wife appears to argue that the judge erred in crediting the husband's testimony and rejecting hers. However, when faced with conflicting testimony, it was within the judge's discretion to assess the witnesses' credibility and to make her determinations of fact accordingly. See R.D. v. A.H., 454 Mass. 706, 718-719 (2009).

The wife also contends that the trial judge erred in admitting the GAL report, asserting that because the GAL failed to identify all of the sources of her information and to list interview dates, the report "violates due process of law." The wife further claims that the report contains factual errors. Though our review has been hampered by the wife's failure to include the GAL report in the record appendix, we discern no error or abuse of discretion in the judge's careful consideration of and reliance on portions of the report. The judge specially noted that she was "able to distinguish the source of the information in most cases" and that she did not consider any of the "hypotheses and recommendations" inappropriately contained in the report. Moreover, at trial, as the judge noted, the wife was able to cross-examine the GAL about any perceived errors contained in the report. Consequently, the judge did not err in considering this report as evidence. See Adoption of Georgia, 433 Mass. 62, 69 (2000) ("All that is required is that the guardian ad litem be available to testify at trial and that the source of the material be sufficiently identified so that the affected party has an opportunity to rebut any adverse or erroneous material contained therein").

Conclusion. The wife's challenges to the judgment of divorce nisi and the judgment declining to find the husband in contempt (but nevertheless ordering him to make significant payments to or for the benefit of the wife and the children) are all dependent on her assertions that certain factual findings were clearly erroneous. Having rejected those assertions, we see no error of law or abuse of discretion in either judgment.

Judgment of divorce nisi affirmed.

Contempt judgment entered March 23, 2016, affirmed.

      Notwithstanding this finding, the judge ordered the husband to pay the wife "all of the itemized educational expenses, and medical/dental expenses" for the wife and the children within thirty days, as well as certain "home maintenance/operation expenses" once the wife provided the underlying documentation for them. The judge also ordered the husband to contact the children's school "to request that all billing by the school be directed to him."

      The wife challenges more than twenty of the judge's factual findings, including her finding that the husband did not wilfully fail to pay the wife the monies due to her under the temporary orders. Some other findings that the wife disputes concern (1) the length of the marriage and the number of years she was out of work; (2) the husband's annual income; (3) the extent of the husband's infidelity; (4) whether she was sometimes the "physical aggressor" during altercations between her and the husband; (5) whether she had outstanding loans from her parents; and (6) whether the husband is fit to parent. With respect to the length of the marriage, we note that, contrary to the wife's contention, the judge properly calculated the length to be 105 months, in accordance with G. L. c. 208, § 48 (length calculated from date of marriage to date of service of complaint for divorce).

      The wife repeatedly takes issue with the judge accepting the husband's testimony as "truth."


text:
    RICOCHET REAL ESTATE, LLC v. Allison LOZANO & another.
    16-P-1610
    Appeals Court of Massachusetts.
    Entered: March 19, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Mario Lozano.

   The defendants, Allison Lozano and Mario Lozano, appeal from judgments, issued after a bench trial, in favor of Ricochet Real Estate, LLC (Ricochet) in its summary process actions for possession of two residential dwelling units following a foreclosure sale of property located in the Dorchester section of Boston (property). We affirm.

1. Background. We briefly summarize the relevant facts. In 2015, Endeavor High Yield Mortgage Fund, LLC (EHYMF), conducted a foreclosure sale of the property. At the time of the sale, Citadel Realty, LLC (Citadel), a company exclusively owned and managed by Mario, owned the property. Citadel had entered into a mortgage agreement with EHYMF's predecessor in interest, Endeavor Capital North, LLC (ECN), in 2014 (2014 mortgage), but was in default.

EHYMF was the highest bidder for the property at the foreclosure sale. It assigned its bid to Ricochet, which became the record owner of the property. At the time of the assignment to Ricochet, the defendants occupied separate apartment units in the building on the property. After failed attempts to negotiate rental agreements, and the defendants' refusal to pay rent, Ricochet commenced summary process actions against them in the Housing Court. As set forth in more detail below, the defense at trial was that Ricochet was not the owner of the property because the foreclosure sale was not conducted in good faith and with reasonable diligence and was void. The judge issued judgments in favor of Ricochet. This appeal followed.

2. Discussion. We accept the judge's factual findings unless they are clearly erroneous and uphold the legal conclusions based on these findings as long as they "are based on reasonable inferences from the evidence." Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 509 (1997).

At the trials, the defendants argued that Ricochet was not the owner of the property because the foreclosure was void. In particular, the defendants argued that Ricochet's predecessor in interest, EHYMF, had a duty to discharge a 2011 mortgage prior to the foreclosure sale in order to elicit the highest bid for the property. This supposed duty arose because, according to the defendants, EHYMF and the 2011 mortgagee were effectively the same entity such that the 2011 mortgagee's failure to discharge the 2011 mortgage after the underlying loan was paid should be attributed to EHYMF. The only evidence marshalled by the defendants in support of their same entity theory was Mario's testimony that he believed EHYMF and the 2011 mortgagee were related, and documents listing the same address and same attorney for the two entities. Contrary to the defendants' arguments on appeal, the trial judge did not err in finding that this alone was insufficient proof to establish the "rare particular situation[ ]" that justifies corporate veil piercing. My Bread Baking Co. v. Cumberland Farms, Inc., 353 Mass. 614, 620 (1968). See, e.g., OMV Assocs., L.P., v. Clearway Acquisition, Inc., 82 Mass. App. Ct. 561, 569-570 (2012).

On appeal, the defendants also argue that an interlocutory order by a judge of the Superior Court in a parallel action brought by Citadel against various Endeavor entities (including Ricochet), has a preclusive effect in the present action. The Superior Court judge's order is, however, not a "final judgment on the merits." Kobrin v. Board of Registration in Med., 444 Mass. 837, 843 (2005).

Judgments affirmed.

      Because the defendants share a last name, we will refer to them by their first names to avoid confusion.

      The trial judge mistakenly referred to Endeavor Capital Funding, not EHYMF, as the foreclosing mortgagee.

      The defendants' separate appeals were consolidated in this court.

      On appeal, Ricochet concedes that the loan underlying the 2011 mortgage was paid.

      The defendants also argue that EHYMF should have discovered and discharged the 2011 mortgage because it was required, pursuant to G. L. c. 244, § 14, to identify and provide notice of a foreclosure sale to all junior lienholders. The 2011 mortgagee, however, was a senior lienholder.

      The trial judge incorrectly stated that there was "no evidence of this [relation] at trial."

      The defendants did not call any witnesses or otherwise provide evidence of any of the twelve factors that are considered in determining whether the corporate veil should be pierced: "(1) common ownership; (2) pervasive control; (3) confused intermingling of business activity assets, or management; (4) thin capitalization; (5) nonobservance of corporate formalities; (6) absence of corporate records; (7) no payment of dividends; (8) insolvency at the time of the litigated transaction; (9) siphoning away of corporate assets by the dominant shareholders; (10) nonfunctioning of officers and directors; (11) use of the corporation for transactions of the dominant shareholders; and (12) use of the corporation in promoting fraud." Evans v. Multicon Constr. Corp., 30 Mass. App. Ct. 728, 733 (1991).

      In the Superior Court action, Citadel sought to void the foreclosure sale on the same grounds as the defense presented at the trials in this case. Citadel brought a motion for approval of a memorandum of lis pendens, which was allowed. Certain Endeavor entities, including Ricochet, ECN, and EHYMF, filed a special motion to dismiss, pursuant to G. L. c. 184, § 15(c ), which was denied. The Endeavor entities appealed. We affirm the order denying the special motion in an opinion issued today. See Citadel Realty, LLC v. Endeavor Capital North, LLC, 16-P-735.


text:
    COMMONWEALTH v. SEAMUS S., a juvenile.
    17-P-52
    Appeals Court of Massachusetts.
    Entered: March 19, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   A jury found the juvenile delinquent on one count of indecent assault and battery on a child under age fourteen, G. L. c. 265, § 13B. The juvenile (represented by new counsel) filed a motion for new trial on the ground that his trial counsel provided him with ineffective assistance. After a hearing at which trial counsel testified, the motion judge, who was not the trial judge, allowed the juvenile's motion. The Commonwealth claims that the judge's allowance of that motion constituted error. We affirm.

Background. We relate the facts the jury could have found. The alleged victim, whom we shall refer to as Michael, was a thirteen year old boy with Asperger's syndrome, a form of autism. In January, 2010, a disagreement between Michael and his mother about discipline escalated to the point where Michael threatened suicide. Fearing for his safety, his mother took him to the hospital and then to the Brien Center, a psychiatric treatment facility for children and teenagers. That evening, the staff assigned Michael to a double room with the juvenile, who was asleep. Michael fell asleep, but awoke to see the juvenile get out of bed, take off his clothes, and enter Michael's bed. The juvenile grabbed Michael by the arms, got on top of him, and put his hands down Michael's boxer shorts. The juvenile then flipped him over, whereupon Michael passed out. The next day, Michael went home, where he disclosed to his mother, the first complaint witness, what had happened.

Discussion. The motion judge agreed with the juvenile that his trial counsel was ineffective for eliciting cross-examination testimony from the mother and Michael-neither of whom counsel interviewed-and from other witnesses about Michael's repeated accusation of sexual assault, in violation of the first complaint doctrine. The motion judge also faulted trial counsel for failing to exploit discrepancies between the mother's trial testimony and her written statement taken by Detective Eason, when counsel unreasonably elected not to pose a single question to the detective about any of the discrepancies, which the mother had dismissed as "mistakes made by the detective" or his "misunderstandings."

1. Standard of review. We review a judge's allowance of a motion for new trial "to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Grace, 397 Mass 303, 307 (1986). We will accept the motion judge's findings of fact, absent clear error, and independently review her conclusions of law. Commonwealth v. Scott, 440 Mass. 642, 646 (2004).

We review claims of ineffective assistance of counsel using the familiar two-prong test outlined in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). In order to prevail on a motion for a new trial, a defendant must demonstrate (1) that defense counsel's conduct fell "measurably below that which might be expected from an ordinary fallible lawyer," and (2) that counsel's conduct was prejudicial in that it "likely deprived the defendant of an otherwise available, substantial ground of defence." Ibid. With respect to the second requirement, "there ought to be some showing that better work might have accomplished something material for the defense." Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977). The burden is on the defendant to meet both prongs of the test. Commonwealth v. Peloquin, 437 Mass. 204, 210 (2002).

Judicial scrutiny of counsel's performance is highly deferential, and we "must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland v. Washington, 466 U.S. 668, 690 (1984). "An attorney's tactical decision amounts to ineffective assistance of counsel only if it was manifestly unreasonable when made." Commonwealth v. Martin, 427 Mass. 816, 822 (1998). "Only 'strategy and tactics which lawyers of ordinary training and skill in the criminal law would not consider competent' are manifestly unreasonable." Commonwealth v. Zagrodny, 443 Mass. 93, 98 (2004), quoting from Commonwealth v. Levia, 385 Mass. 345, 353 (1982).

2. First complaint doctrine violations. The first complaint doctrine was created to allow "the person who was first told of [an] assault, [to] ... testify to the details of the alleged victim's first complaint of sexual assault and the circumstances surrounding that first complaint as part of the prosecution's case-in-chief." Commonwealth v. King, 445 Mass. 217, 243 (2005), cert. denied, 546 U.S. 1216 (2006). Allowing the prosecution one first complaint witness achieves the principal goal of the doctrine, "which is to refute any false inference that silence is evidence of a lack of credibility on the part of [sexual assault] complainants." Ibid. The first complaint doctrine also serves to limit the "piling on" of multiple complaint witnesses, id. at 245, who "likely serve[ ] no additional corroborative purpose, and may unfairly enhance a complainant's credibility as well as prejudice the defendant by repeating for the jury the often horrific details of an alleged crime." Id. at 243. A first complaint witness may testify to "the details of the complaint itself," including "the complainant's statements of the facts of the assault." Id. at 244, quoting from Commonwealth v. Quincy Q., 434 Mass. 859, 874 (2001). The details of the first complaint may also include "why the complaint was made at that particular time." Id. at 245. The details do not include whether the complainant told others of the assault, "even where the details of the conversation have been omitted." Commonwealth v. Aviles, 461 Mass. 60, 68 (2011). This includes whether the police or other officials were told of the alleged assault. See Commonwealth v. Stuckich, 450 Mass. 449, 457 (2008) ("The fact that the Commonwealth brought its resources to bear on [an] incident creates the imprimatur of official belief in the complainant").

In this case, we agree with the motion judge that trial counsel elicited cross-examination testimony from Michael that fell well outside the scope of the first complaint doctrine. In a futile attempt to impeach Michael-whom he had not interviewed-trial counsel cross-examined Michael regarding details of the assault that he told to the investigator. In addition, trial counsel elicited that Michael discussed the assault with "a few different people" shortly after it happened. Trial counsel did not seek to have these answers stricken, leaving the jury with seemingly consistent accounts of the assault told to persons other than the first complaint witness. By persisting in this line of cross-examination, trial counsel impermissibly permitted Michael to inform the jury that he consistently described the assault to multiple people. See Commonwealth v. King, 445 Mass. at 243. Trial counsel also elicited testimony from the first complaint witness, the mother, that fell outside the scope of the first complaint doctrine. Trial counsel cross-examined the mother at length about her written statement to Detective Eason repeating what Michael relayed to her about the assault. Counsel also asked the mother about her communications about the assault with Detective Eason and members of the district attorney's office.

The mother's written statement, her testimony about the details of Michael's sexual assault set forth in that statement, and her testimony about her communications with police and members of the district attorney's office about Michael's report to her, all combined to suggest that the Commonwealth believed and gave weight to Michael's report in violation of the first complaint doctrine. See Commonwealth v. Aviles, 461 Mass. at 68. This created "the imprimatur of official belief in the complainant" cautioned against in Commonwealth v. Stuckich, 450 Mass. at 457.

3. Failure to present impeachment evidence. "Impeachment of a witness is, by its very nature, fraught with a host of strategic considerations...." Commonwealth v. Fisher, 433 Mass. 340, 357 (2001). When a defendant alleges that counsel failed "to pursue some obviously powerful form of impeachment," we look to determine whether "a different approach to impeachment would likely have affected the jury's consideration." Ibid.

Here, beyond the multiple violations of the first complaint doctrine, the mother's trial testimony directly contradicted parts of her written statement to Detective Eason. In particular, her written statement recited that she read it before she signed it. Yet when cross-examined by trial counsel about contradictions of her statement she made during her testimony on direct examination, she put the blame on Eason for making mistakes and misunderstanding her, and claimed she signed it without reading it. We agree with the motion judge that trial counsel's failure to impeach the mother by not questioning Eason about any of the mother's contradictions of the statement she gave him exacerbated the harmful effect of the improper first complaint testimony.

At the motion hearing, trial counsel testified that he elicited testimony of what the mother told Detective Eason about the sexual assault, because he was planning to impeach her through Eason's expected testimony. Yet, when counsel called Eason to the stand, he never questioned Eason about any of the mother's contradictions of her written statement during her trial testimony. Although counsel testified that he chose not to question the detective about the mother's contradictions because he did not trust the detective, we conclude the motion judge correctly determined that this was not a reasonable course of action, because the result was that the mother's testimony in contradiction of her written statement stood unchallenged. We find no error in the motion judge's findings, and agree that these failures by trial counsel fell well 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. at 96.

Whether these errors warranted the allowance of the juvenile's motion for new trial depends, in part, upon the strength of the Commonwealth's case. Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). Here, the strength of the case must be measured by the other evidence presented at trial, namely, the testimony of the other witnesses. Aside from Michael and the mother, none of the witnesses could testify regarding the facts of the alleged assault, as Michael and the juvenile were the only ones present. There was no physical, forensic, or scientific evidence presented at trial. It follows then that the central issue at trial was the credibility of Michael and his mother. See Commonwealth v. Gardner, 350 Mass. 664, 667 (1966) ; Commonwealth v. Stuckich, 450 Mass. at 454 ; Commonwealth v. Velazquez, 78 Mass. App. Ct. 660, 666 (2011). Due to the lack of any other evidence apart from Michael's and the mother's testimony corroborating the sexual assault, we are left with a "serious doubt" as to whether the result of the trial would have been the same had these errors not been made. Commonwealth v. LeFave, 430 Mass. 169, 174 (1999).

Conclusion. We agree with the motion judge that the combined effect of trial counsel's errors-introducing inadmissible first complaint testimony, and failing to impeach the mother's testimony through the detective who took her statement, which she contradicted in her trial testimony-created a substantial risk that a miscarriage of justice occurred, requiring a new trial.

Order allowing motion for new trial affirmed.

      The juvenile cross-appeals, alleging that the trial judge's reasonable doubt instruction was erroneous. Since we agree with the motion judge that the juvenile did not receive effective assistance of counsel, we express no opinion on that issue here.

      A pseudonym.

      Other discrepancies between the mother's statement and her testimony were as follows. Defense counsel asked the mother if she had asked Michael three times whether he had been sexually assaulted, because that was what her statement said. She denied this and said she only asked him once. Defense counsel asked the mother if she had asked Michael on the phone the next morning if someone had touched him inappropriately. She denied doing so. Her statement to police said she did ask him. Defense counsel also asked if she had asked Michael on the ride home whether someone had touched him. Her written statement says she did ask him. She also denied this, saying Detective Eason must have misunderstood her.

      It is true that "[g]enerally the mere failure to impeach a witness does not prejudice the defendant or constitute ineffective assistance." Commonwealth v. Ortiz, 53 Mass. App. Ct. 168, 180 (2001). However, for the reasons discussed infra, this is one such a case where "counsel's failure to pursue some obviously powerful form of impeachment" likely affected the jury's conclusion. Commonwealth v. Fisher, 433 Mass. at 357.

      In fact, the other witnesses' testimony was largely beneficial to the juvenile's defense. Brien Center staff working that night testified that they performed bed checks every fifteen minutes and did not see the juvenile or Michael out of bed or anything out of the ordinary.


text:
    Michael HAMPTON v. Tara Devi S. ASHOK.
    17-P-125
    Appeals Court of Massachusetts.
    Entered: March 19, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   This case arises out of a dispute about a final grade for a summer session class at the Boston campus of the University of Massachusetts (UMass). The plaintiff, Michael Hampton, appeals from a summary judgment dismissing his complaint. Hampton's complaint alleged that the defendant instructor Tara Devi S. Ashok committed fraud and defamed him by falsely stating that he had failed her class; Hampton also argues that he was improperly denied necessary discovery. We affirm, essentially for the reasons well explained in the judge's thoughtful memorandum.

"We review a grant of summary judgment de novo to determine 'whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.' " DeWolfe v. Hingham Centre, Ltd., 464 Mass. 795, 799 (2013), quoting from Juliano v. Simpson, 461 Mass. 527, 529-530 (2012). Ashok, the moving party, has the burden of establishing that there is no genuine issue as to any material fact and that she is entitled to judgment as a matter of law. See Dias v. Brigham Med. Assocs., Inc., 438 Mass. 317, 319 (2002). We are persuaded that Ashok has done so, as Hampton had no reasonable expectation of proving his case. See Ravnikar v. Bogojavlensky, 438 Mass. 627, 629 (2003).

In order for his fraud claim to succeed, Hampton "must prove 'that the defendant made a false representation of a material fact with knowledge of its falsity for the purpose of inducing the plaintiff to act thereon, and that the plaintiff relied upon the representation as true and acted upon it to his damage.' " Copley Place Assocs., LLC v. Téllez-Bortoni, 91 Mass. App. Ct. 186, 187-188 (2017), quoting from Danca v. Taunton Sav. Bank, 385 Mass. 1, 8 (1982). "Such reliance by the plaintiff must be reasonable." Ibid., quoting from Masingill v. EMC Corp., 449 Mass. 532, 540 (2007).

Here, Hampton's final grade was based on the course requirements and method of evaluation expressly detailed in Ashok's class syllabus and distributed to each student at the start of the summer session. Following the grading scale outlined in the syllabus, Ashok determined that Hampton's final grade was 56.52-a failing grade. As a result, her statement that Hampton failed her class was based on her calculations and opinion about the work that Hampton had submitted. Hampton offers nothing to show that Ashok's representation about her opinion was false, much less that Ashok knew it was false. Nor is there even an allegation that Hampton did anything in reliance on Ashok's opinion or that he was harmed by such reliance.

Hampton's defamation claim also fails. To withstand a motion for summary judgment for defamation, Hampton was required to establish that, "(a) The defendant made a statement, concerning the plaintiff, to a third party" ; "(b) [t]he statement could damage the plaintiff's reputation in the community"; "(c) [t]he defendant was at fault in making the statement" ; and "(d) [t]he statement either caused the plaintiff economic loss (traditionally referred to as 'special damages' or 'special harm'), or is actionable without proof of economic loss." Ravnikar, 438 Mass. at 629-630. "[T]he gravamen of the tort of defamation does not lie in the nature or degree of the misconduct but in its outcome, i.e., the injury to the reputation of the plaintiff." Barrows v. Wareham Fire Dist., 82 Mass. App. Ct. 623, 627 (2012). Here, Ashok reported (presumably in writing) Hampton's failing grade only to appropriate UMass officials. Hampton has failed to show harm to his reputation or any financial loss. As a result, we agree with the judge that none of the elements necessary to support a claim of defamation was present here.

Because we conclude there is no genuine issue as to any material fact, we are satisfied that the defendant's motion for summary judgment was properly allowed. See Dias, supra.

Finally, Hampton claims error in the denial of his request for discovery of contact information for fellow students. "The conduct and scope of discovery is within the sound discretion of the judge.... While discovery orders are reviewable on appeal from entry of a final judgment, we do not interfere with the judge's exercise of discretion in the absence of a showing of prejudicial error resulting from an abuse of discretion." Solimene v. B. Grauel & Co., KG, 399 Mass. 790, 799 (1987). After review, we see neither error nor abuse of discretion in the judge's refusal to provide Hampton with private contact information for his fellow students.

The personal contact information in the possession of UMass (or Ashok, as a university professor) of other students in Hampton's anthropology class equates to "education records" protected under the Family Educational Rights and Privacy Act (FERPA). 20 U.S.C. § 1232g(a)(4)(A) (2012). See Champa v. Weston Pub. Schs., 473 Mass. 86, 91-93 (2015). Nonetheless, in this case, in order to provide Hampton with a fair chance at securing possible witnesses for trial, the judge ordered defense counsel to contact each student and ask if the student was willing voluntarily to divulge personal information for Hampton's use. Defense counsel then e-mailed each student the request. As proof of compliance, counsel provided a copy of the correspondence (with e-mail addresses redacted), which is contained in the record. We discern no error.

Judgment affirmed.

      Ashok has filed with this court a "Suggestion of Death of Plaintiff-Appellant Michael Hampton," including averments of counsel describing attempts to contact Hampton, a copy of an obituary for a man with what is alleged to be the same full name and date of birth as Hampton, and a copy of an envelope addressed to Hampton but returned by the U.S. Postal Service and marked "deceased." Hampton has proceeded pro se both in the trial court and on appeal. No executor or other personal representative has filed a notice with this court or attempted to appear on Hampton's behalf. We note that, as we understand Hampton's claims, they are tort claims that would not survive his death. See Kraft Power Corp. v. Merrill, 464 Mass. 145, 149-151 (2013). See also Walters v. Nettleton, 5 Cush. 544 (1850). Nonetheless, as the matter on appeal has been briefed, we address the issues presented.

      "The statement may be published in writing or some other equivalent medium (in which case it is designated as libel), or, ... orally (in which case it is designated as slander)." Ravnikar, 438 Mass. at 629.

      The level of fault required in the case of a statement about a private person is negligence. Ravnikar, 438 Mass. at 630.

      According to Hampton's testimony at the second day of his deposition (on September 21, 2015), the veterans program at UMass was paying his tuition.

      To the extent that we may not have remarked upon other contentions Hampton raised in his brief, "they 'have not been overlooked. We find nothing in them that requires discussion.' " Department of Rev. v. Ryan R., 62 Mass. App. Ct. 380, 389 (2004), quoting from Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).


text:
    Michael Joseph RILEY, petitioner.
    16-P-970
    Appeals Court of Massachusetts.
    Entered: March 21, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The petitioner is a transgender woman who was convicted of murder in the first degree by extreme atrocity or cruelty, G. L. c. 265, § 1, as well as disseminating matter harmful to a minor, G. L. c. 272, § 28. She is currently serving a sentence on the former conviction of life in prison without the possibility of parole. As part of her transition from male to female, the petitioner filed a pro se petition in the Probate and Family Court under G. L. c. 210, § 12, seeking to change her name to feminize it. That statute provides that "[t]he change of name of a person shall be granted unless such change is inconsistent with public interests." G. L. c. 210, § 12, as appearing in St. 1977, c. 869, § 3. General Laws c. 210, § 13, as amended through St. 1966, c. 342, § 1, provides that "[t]he court shall, before decreeing a change of name, request a report from the commissioner of probation on the person filing the petition and, except for good cause shown, require public notice of the petition to be given and any person may be heard thereon."

An order entered in the Probate and Family Court requiring that notice be given by mail to the Attorney General of the Commonwealth, the Commissioner of Probation, the Executive Office of Public Safety and Security of the Department of Correction, the Sex Offender Registry Board, the Plymouth County sheriff's office, the Plymouth County district attorney's office, and the petitioner's then-wife, Carolyn Riley. Of those notified parties, only the Plymouth County district attorney's office filed an objection and made an appearance. The Norfolk County district attorney's office also filed an objection and made an appearance.

At an evidentiary hearing on the matter, the petitioner argued not only that her change of name was not inconsistent with public interest, but also that other transgender inmates housed where she is housed, at the Massachusetts Correctional Institution at Norfolk, had been permitted legally to change their names, and that a denial of her petition would violate equal protection.

In reliance on our decision in Verrill, petitioner, 40 Mass. App. Ct. 34 (1996) (Verrill ), a judge of the Probate and Family Court denied the petition for name change. There we wrote that "confusion in the criminal justice system and, more particularly in its record keeping is ... a 'wrongful consequence[ ]' [of a name change] and ... granting a name change to an inmate will likely result in such confusion." Id. at 36. The judge concluded that there was a risk of such confusion in this case, and denied the petition. The judge did not address the equal protection claim raised by the petitioner. The petitioner has appealed.

Discussion. The statutory right to change one's name is exceedingly broad, see Rusconi, petitioner, 341 Mass. 167, 170 (1960), imbued as the choice of name is with constitutional overtones. See Secretary of the Commonwealth v. City Clerk of Lowell, 373 Mass. 178, 185 (1977) (Noting that it has "been authoritatively advised that freedom of personal choice in matters of family life is one of the liberties protected by the due process clause of the Fourteenth Amendment, and that there is a private realm of family life which the State cannot enter," the court ruled that traditional rules of naming could not be imposed upon married persons, divorced persons, or parents seeking to name their children). Of course, as Verrill makes clear, that right is not absolute, and there may be aspects of conviction and incarceration that affect the calculation of the public interest in the case of a prisoner seeking a name change that are not present in the case of an individual who is free. See Verrill, supra at 35-36.

With respect to the statutory question, it appears to us that the judge properly followed Verrill. During the pendency of this appeal, however, we decided Jaynes, petitioner, 88 Mass. App. Ct. 745 (2015) (Jaynes ). This decision clarified the standard articulated in Verrill. In Jaynes we said, "[w]hen a prisoner's right to a name change is at issue, the public interests at stake are heightened, particularly if the prisoner may be paroled in the future." Id. at 747. The negative implication is that where parole is not available, a judge's assessment of the public interest must take account of the reduced-even if not absolutely eliminated-likelihood of release.

Although the judge did discuss the risk of confusion in the criminal justice system in light of the various avenues by which the defendant might one day be released, he did so without the benefit of our teaching in Jaynes. While it may or may not make any difference to the statutory calculus, something we do not decide, we think the prudent course in light of Jaynes is to vacate the decree denying the petition for name change and remand the case for reconsideration in light of our subsequent decision. We note that the proper assessment requires the judge to weigh the petitioner's reasons for seeking the name change as well as broader societal interests. See Verrill, 40 Mass. App. Ct. at 37 (describing the lower court's approach). The examination of the public interest does not eliminate, but requires, consideration of the interests served for the individual by the change of name. Cf. Petition of Two Minors for Change of Name, 25 Mass. App. Ct. 941 (1988) (statutory public interest standard does not replace but incorporates assessment of best interest of child seeking name change).

With respect to the equal protection claim that the judge below did not address, the offices of the district attorneys for Norfolk and Plymouth Counties argue that it was waived. The procedure for petitioning for change of name in the Probate and Family Court is quite informal. It is instituted by filling out a preprinted form. Presumably because many such petitions elicit no objection, the form itself contains a line for the judge to decree the name change. In this case, after the pro se inmate petitioner filed her petition form, the offices of the district attorneys for Norfolk and Plymouth Counties filed their objections. At the next available opportunity, the hearing, the pro se inmate raised her equal protection claim. In the circumstances, we conclude that the equal protection claim was not waived, although neither the facts nor the legal arguments were fleshed out below. Since there must in any event be a remand in this case, the parties may address the equal protection claim on remand should they so choose.

The decree denying the petition for name change is vacated, and the case is remanded for further proceedings consistent with this memorandum and order.

So ordered.

Vacated and remanded.

      See Commonwealth v. Riley, 467 Mass. 799 (2014).

      See Commonwealth v. Riley, 86 Mass. App. Ct. 309 (2014), cert. denied, 135 S. Ct. 1858 (2015).

      Because the petitioner is a transgender woman, we use the female pronoun, as is the practice in our courts. See, e.g., Commonwealth v. Oppenheim, 86 Mass. App. Ct. 359, 361 n.4 (2014).

      The petitioner's then-wife also objected to the petitioner changing her name prior to the finality of their divorce. That divorce is now final, and the petitioner's former wife did not appear at the hearing nor has she filed any further documents or renewed her objection.

      Although the offices of the district attorneys for Norfolk and Plymouth Counties objected to the name change on grounds of risk of confusion, there was no objection from the Commissioner of Probation, the Department of Correction, the Sex Offender Registry Board, or the Plymouth County sheriff's office. In Verrill, the conclusion that the name change "would likely cause significant confusion in the criminal justice system if [the petitioner] were ever released," id. at 37, was based upon filings by the Department of Correction and the Massachusetts Parole Board stating "that many of their records are housed in different facilities and are not accessible by computer. Therefore, a name change may not be properly recorded and accurate record keeping would be seriously compromised." Id. at 37 n.5.
      On remand, given that the petitioner is now represented by counsel, the parties may fruitfully explore whether this two-decade old assessment remains accurate today. There may be some relevance as well to the manner in which the criminal justice system deals with prisoners' name changes that are not the result of proceedings under G. L. c. 210, § 12 ; for example, those attendant upon marriage or divorce. See, e.g., G. L. c. 46, § 1D, inserted by St. 1977, c. 869, § 2 ("Each party to a marriage may adopt any surname, including but not limited to the present or birth-given surname of either party, may retain or resume use of a present or birth-given surname, or may adopt any hyphenated combination thereof"); G. L. c. 208, § 23, as amended by St. 1973, c. 379 ("The court granting a divorce may allow a woman to resume her maiden name or that of a former husband"). We note that the concern raised by the Plymouth County district attorney's office about the inability to find a formerly incarcerated individual in the absence of actual notice of the name change is absent here, where that office has such notice.


text:
    DITECH FINANCIAL, LLC v. Khambao Savankham KENNEDY & others.
    17-P-324
    Appeals Court of Massachusetts.
    Entered: March 19, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Formerly known as Khambao Savankham.

      Sengsouvanny Bounphasaysonh and Joseph Bounphasaysonh. Because they share the same surname, we shall refer to them by their first names.

   The plaintiff, Ditech Financial, LLC (Ditech), appeals from a Land Court order denying its motion to amend the judgment requesting equitable subrogation of a 2007 mortgage granted by the defendant Khambao Svankham Kennedy to the record position of a 2003 mortgage. We affirm.

Background. In 1987, Kennedy purchased a property in Southbridge (property) for $95,000. To finance the purchase, she took out a loan (1987 loan), which was secured by a first mortgage (1987 mortgage) on the property. In 2003, Kennedy refinanced the 1987 loan, borrowed $170,000, discharged the 1987 mortgage, and granted a new first mortgage (2003 mortgage) on the property. In April 2004, Kennedy deeded the property (subject to the 2003 mortgage) to herself and her two children, Sengsouvanny and Joseph, as joint tenants with rights of survivorship. The deed was recorded in the Registry of Deeds.

In 2007, Kennedy refinanced the property again. She borrowed $184,500 from Ditech and executed a note in her name only, secured by a mortgage to Ditech (2007 mortgage) in which she alone was listed as the mortgagor. Although Ditech received a title report listing Sengsouvanny and Joseph as joint owners of the property along with Kennedy, Ditech prepared the closing documents (including the 2007 mortgage) and did not list either Sengsouvanny or Joseph as co-mortgagors on the 2007 mortgage. Ditech was represented by counsel during the closing; however, Kennedy, who is not fluent in English, was not. Kennedy used the proceeds of the 2007 loan, inter alia, to satisfy the balance of the 2003 loan and discharge the 2003 mortgage.

In 2010, Kennedy lost her job and defaulted on the 2007 loan. In December, 2011, Ditech filed a three-count complaint in the Land Court against Kennedy, Sengsouvanny, and Joseph based on the doctrine of mutual mistake. The case proceeded to a bench trial, during which the trial judge suggested to the parties that the theory of equitable subrogation, not pleaded by Ditech, might apply. He set a deadline for posttrial submissions, inviting the parties to address the issue of equitable subrogation. Ditech did not move to amend its complaint to add a claim for equitable subrogation. Neither party made any submissions within the deadline. Thereafter, the trial judge entered judgment against Ditech, declining to address the merits of a claim for equitable subrogation because Ditech neither amended its complaint to seek such relief even after the trial judge raised the issue, nor presented evidence to support such a claim.

Subsequently, Ditech filed a motion to amend the judgment pursuant to Mass.R.Civ.P. 59(e), 365 Mass. 828 (1974), seeking reconsideration of the portion of the judge's decision concerning equitable subrogation. As grounds for its motion, Ditech stated that, on the day of the deadline for posttrial submissions, it had sent, by electronic mail message (e-mail), a written submission briefing the issue of equitable subrogation. Because e-mail filing is not permitted in the Land Court, the submission was untimely. Nevertheless, the trial judge treated the motion to amend the judgment in part as a motion to allow late filing of the written submission, which he allowed. Addressing the issue of equitable subrogation, the trial judge denied the motion to amend the judgment on the basis that Ditech failed to offer evidence at trial from which to conclude that subrogation would not work an injustice to Sengsouvanny and Joseph. This appeal followed.

Discussion. We review a judge's decision to deny a motion to amend judgment pursuant to Mass.R.Civ.P. 59(e) for abuse of discretion. R.W. Granger & Sons, Inc. v. J & S Insulation, Inc., 435 Mass. 66, 79 (2001). An abuse of discretion occurs only 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) (citation omitted). Here, we discern no such abuse.

The remedy of equitable subrogation "is a broad equitable remedy." East Boston Sav. Bank v. Ogan, 428 Mass. 327, 330 (1998) (Ogan ) (quotation omitted). In Ogan, the Supreme Judicial Court set forth five factors that should be considered to determine whether the doctrine of equitable subrogation should be applied: "(1) the subrogee made the payment to protect his or her own interest, (2) the subrogee did not act as a volunteer, (3) the subrogee was not primarily liable for the debt paid, (4) the subrogee paid off the entire encumbrance, and (5) subrogation would not work any injustice to the rights of the junior lienholder." Ibid. (footnote and quotation omitted). Additionally, in determining whether the doctrine should be applied, we are guided by "the purpose of equitable subrogation[, which] is to prevent unjust enrichment." Wells Fargo Bank, N.A. v. Comeau, 92 Mass. App. Ct. 462, 468 (2017).

Here, our analysis is informed by the fact that Ditech did not amend its complaint to include a claim for equitable subrogation, choosing instead to press its claims against the defendants on the basis of the doctrine of mutual mistake. It is not surprising therefore that Ditech's evidence did not establish its entitlement to the remedy of equitable subrogation. Thus, for example, the evidence showed that in executing the 2007 mortgage, Ditech was on notice that Sengsouvanny and Joseph (in addition to Kennedy) held title to the property. Indeed, the 2007 mortgage document, which Ditech prepared, states that Ditech took the mortgage subject to any encumbrances of record. Furthermore, the evidence does not show an impediment that would preclude Ditech from pursuing a claim directly against Kennedy and her interest in the property. Additionally, the evidence is only that the 2007 refinancing extinguished Kennedy's liability on the 2003 note; neither Sengsouvanny nor Joseph is a signatory to the 2003 note. Nothing in the record shows any misconduct by Sengsouvanny or Joseph. On this record, the trial judge did not abuse his discretion in denying the motion to amend the judgment. See, e.g., ibid.

Judgment affirmed.

Order denying motion to amend judgment affirmed.

      The original complaint was filed by BAC Home Loans Servicing, LP (BAC) and BSM Financial, LP (BSM). They assigned the 2007 mortgage to a separate entity, which, after a merger, became Ditech. While the appeal was pending, BAC and BSM filed in the Land Court a motion to substitute Ditech for BAC and BSM, which was allowed. We will refer to each of BAC, BSM, and Ditech as Ditech.

      Ditech's notice of appeal states that it is appealing from both the judgment and the order denying its motion to amend the judgment. The judgment denied Ditech's claims, based on the doctrine of mutual mistake, to reform the 2007 mortgage to include all the record property owners, to declare it holds a valid first mortgage from all the record property owners, and to quiet title to include all the record property owners as mortgagers. As Ditech did not advance any arguments regarding the judgment in its brief, we decline to address them. See Mass.R.A.P. 16(a )(4), as amended, 367 Mass. 921 (1975) ("The appellate court need not pass upon questions or issues not argued in the brief").

      Ditech argues for the first time on appeal that Sengsouvanny's and Joseph's interests are encumbered by the 2007 mortgage because they did not accept Kennedy's conveyance of the deed until after she executed the 2007 mortgage. We need not address the merits of this argument because, having not been raised previously, it is waived. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006), quoting from Century Fire & Marine Ins. Corp. v. Bank of New England-Bristol County, N.A., 405 Mass. 420, 421 n.2 (1989) ("An issue not raised or argued below may not be argued for the first time on appeal").

      Ditech further stated that on that same day, it also had mailed the written submission to the court. The trial judge credited Ditech's assertion, but determined that the mailed submission was likewise untimely.

      The trial judge found that Ditech satisfied the first four elements because Ditech (1) paid the 2003 mortgage to protect its own interest in the property, (2) did not do so as a volunteer, (3) was not primarily liable for the 2003 mortgage that it paid off, and (4) paid off the entire 2003 mortgage.