text:
    COMMONWEALTH v. Ryan DUNTIN.
    17-P-18
    Appeals Court of Massachusetts.
    Entered: April 13, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury trial, the defendant, Ryan Duntin, was convicted of two counts of trafficking persons for sexual servitude, see G. L. c. 265, § 50(a )(ii), and two counts of deriving support from prostitution, G. L. c. 272, § 7. On appeal the defendant contends that (1) the deriving support convictions are lesser included offenses of the trafficking convictions; (2) the judge erred when he did not give the jury a separate acts instruction regarding the trafficking and deriving support charges; (3) the second set of trafficking, deriving support, and conspiracy convictions should have been dismissed as duplicative; and (4) the judge erred when he did not grant the defendant's request for a mistrial. We affirm.

1. Lesser included offenses. In Commonwealth v. McGhee, 472 Mass. 405, 416-417 (2015), the Supreme Judicial Court held that G. L. c. 272, § 7, is not a lesser included offense of trafficking for sexual servitude under G. L. c. 265, § 50(a )(i). For the first time in his reply brief, the defendant argues that McGhee leaves open the question whether G. L. c. 272, § 7 (deriving support), is a lesser included offense of G. L. c. 265, § 50(a )(ii), which prohibits receiving a financial benefit or other thing of value as a result of trafficking in violation of § 50(a )(i). An argument raised for the first time in a reply brief is waived. See Commonwealth v. Stewart, 460 Mass. 817, 831 (2011). Nevertheless, as discussed below, we have reviewed the claim and determined it to be without merit.

In McGhee, the court stated two primary reasons why G. L. c. 272, § 7, was not a lesser included offense of G. L. c. 265, § 50(a )(i) :

"First, the language of G. L. c. 272, § 7, plainly states that the conduct prohibited by that statute is the sharing of proceeds earned by a known prostitute. In contrast, under G. L. c. 265, § 50 (a ), an individual who knowingly enables or causes another person to engage in commercial sexual activity need not benefit, either financially or by receiving something of value, from such conduct in order to be convicted of sex trafficking.... Second, the knowledge element of G. L. c. 272, § 7, is retrospective. That is to say, an individual shares earnings or proceeds knowing that they came from an act of prostitution that already has occurred. In contrast, the knowledge element of G. L. c. 265, § 50 (a ), is prospective. An individual engages in statutorily enumerated acts knowing that those acts will result in another person's anticipated engagement in commercial sexual activity."

McGhee, supra at 416-417.

In an indictment under G. L. c. 265, § 50(a )(ii), one element of the offense is that the defendant obtained a financial benefit or received anything of value. In this respect a trafficking offense charged under § 50(a )(ii) and a deriving support claim under G. L. c. 272, § 7, share a common element. However, G. L. c. 265, § 50(a )(ii), incorporates a violation of G. L. c. 265, § 50(a )(i), and therefore incorporates the knowledge element of § 50(a )(i) into § 50(a )(ii). The knowledge element of the crime of trafficking under § 50(a )(ii) is prospective, while the knowledge element of the crime of deriving support under G. L. c. 272, § 7, is retrospective. McGhee, supra at 417. Each crime contains an element that the other does not, and therefore G. L. c. 272, § 7, is not a lesser included offense of G. L. c. 265, § 50(a )(ii). See Commonwealth v. Vick, 454 Mass. 418, 431 (2009).

2. Separate acts instruction. The defendant contends for the first time on appeal that the deriving support convictions should have been dismissed because the judge erred in not giving a separate acts instruction. In support of his argument, the defendant relies on Commonwealth v. Niels N., 73 Mass. App. Ct. 689, 698 (2009), which states that "[w]here offenses are so closely related in fact that they in substance constitute a single crime, the jury are to be instructed that convictions on those offenses must rest on separate and distinct acts."

The defendant's reliance on Niels N. is misplaced. For the reasons stated above, the trafficking and deriving support crimes each contain elements not present in the other and thus, the same evidence can support convictions for both crimes. The majority opinion in Niels N. was rejected in Vick, supra, and has no application here.

The defendant was charged with two counts of trafficking and two counts of deriving support, however, and to that extent "[t]he question whether two offenses are 'so closely related in fact as to constitute in substance but a single crime,' becomes pertinent ... [because] there are multiple counts of the same offense." Vick, supra at 435, quoting from Commonwealth v. St. Pierre, 377 Mass. 650, 662 (1979). "In those circumstances, multiple convictions and sentences are permissible only where each conviction is premised on a distinct criminal act...." Vick, supra.

"Whether a defendant's actions constitute separate and distinct acts or must be considered a single crime is a question of fact for the jury to resolve." Id. at 435 n.16. Here, the judge instructed the jury:

"The human trafficking and the deriving support counts are alleged to have occurred in two different towns. There's a separate count alleged for Braintree, a separate count alleged for Tewksbury. We're going to have clipped to the verdict slip the particular count. That will tell you whether that's the count that relates to Tewksbury or to Braintree."

The instruction was clear. The factual question whether the defendant committed multiple counts of each offense-"in two different towns"-was squarely before the jury. There was no error.

3. Duplicative convictions. The defendant submits that the conduct charged constituted a single, continuing offense, and that the resulting multiple convictions were duplicative. The evidence showed that the defendant sexually exploited the victim in various locations, including two different hotels, in two different counties, over the course of a number of days. None of the offenses were necessary or incidental to the others. See Commonwealth v. Suero, 465 Mass. 215, 221 & n.6 (2013). The convictions were not duplicative. Ibid.

4. Mistrial. The defendant contends that the judge abused his discretion in denying the defendant's motion for a mistrial. He claims that the jury's exposure to comments made by a juror tainted the jury's deliberations.

During deliberations, the judge received notes from juror number five (juror 5) and juror number thirteen (juror 13), requesting to be made alternates. The judge initially questioned juror 13, who told him that she lived in Randolph, that she was not comfortable sitting on the jury, but that she had never seen the defendant's family before. The trial judge asked: "[D]id you have any conversation with [juror 5] about anything regarding her living in Randolph or the case?" Juror 13 responded: "No. She just was sharing what-you know, fears. I said, well, I live in Randolph, too. That was it." The judge proceeded to question juror 5, who reported that she asked to be an alternate because she lived in Randolph, as did the defendant's family, and that she had recognized some of the defendant's family members as people that she had seen "around town." She also expressed concern about her family's safety, but denied saying anything about the defendant's family in the jury room. After questioning juror 5, the judge denied the defendant's motion for a mistrial and dismissed juror 5 over the defendant's objection.

The judge continued to question juror 13 about her conversation with juror 5. The judge asked juror 13 if juror 5 expressed any fears to the entire group. Juror 13 stated: "It was just-I'm just close-I was close to her. I don't know if anybody heard." After conferring with counsel about whether to dismiss juror 13, the judge-at the defendant's request-once again inquired about what juror 5 said to juror 13. The judge asked: "[D]o you remember exactly what she said to you?" In response juror 13 stated: "Word for word, no. It's just that she thought she saw the-some of the people that were in court in Randolph.... Some people that were in court here-... that were in Randolph.... That's it." After thoroughly questioning juror 13, the judge denied the Commonwealth's request to dismiss juror 13, assigned an alternate to replace juror 5, and instructed the jury to begin their deliberations anew. The defendant declared himself satisfied with juror 13.

The defendant did not renew his request for a mistrial after the judge determined that juror 13 could serve on the jury. Furthermore, the defendant did not ask the judge to question the remaining jurors about their exposure to comments made by juror 5. In fact, defense counsel stated that the defendant "expressed his concerns that if there was some conversation about family members and then jurors are let go one by one, he feels as though that's going to look disfavorable [sic ] upon him."

The judge did not abuse his discretion in denying a mistrial. He questioned jurors 5 and 13 repeatedly at the defendant's request and removed juror 5. See Commonwealth v. Kamara, 422 Mass. 614, 616-617 (1996) ; Commonwealth v. Tennison, 440 Mass. 553, 558 (2003). The defendant raised no objection to juror 13, and the judge's disposition with respect to juror 13 was consistent with the defendant's expressed concern that further questioning was undesirable.

In order to establish grounds for a mistrial, the defendant was required to make a "colorable showing" that some word or deed may have had an impact on the remaining jurors that rose above the level of mere speculation. Commonwealth v. Dixon, 395 Mass. 149, 151-152 (1985). See Commonwealth v. Rivera, 464 Mass. 56, 81 (2013). We accord substantial deference to the trial judge in these matters, as he was "in the best position to evaluate all the circumstances of the exposure to the extraneous matter, and its actual prejudicial effect." Commonwealth v. Hardy, 431 Mass. 387, 392 (2000). The defendant failed to meet his burden to demonstrate that the remaining jurors were in fact exposed to extraneous material. See Commonwealth v. Cordle, 412 Mass. 172, 180 (1992). The judge thoroughly examined juror 5 and juror 13. Juror 5 denied saying anything about the defendant's family or fear for her safety in the jury room. Juror 13 claimed that juror 5 said she "thought she saw the-some of the people that were in court in Randolph," but said that juror 5 was sitting "close to her" and did not know "if anybody heard." Nothing in this statement suggest that any other juror overheard the conversation or would be swayed by it even if overheard. In addition, the judge once again instructed the entire jury that they were to "begin their deliberations anew on the merits of the case." "We presume that the jury followed the instruction." Commonwealth v. Shruhan, 89 Mass. App. Ct. 320, 326 (2016). The judge did not abuse his considerable discretion.

Judgments affirmed.

      At a subsequent plea hearing, the defendant pleaded guilty to two counts of conspiracy to traffic persons for sexual servitude, G. L. c. 274, § 7, and one count of failure to register as a sex offender, G. L. c. 6, § 178H.

      General Laws c. 265, § 50(a ), inserted by St. 2011, c. 178, § 23, provides in pertinent part:
      "Whoever knowingly: (i) subjects, or attempts to subject, or recruits, entices, harbors, transports, provides or obtains by any means, or attempts to recruit, entice, harbor, transport, provide or obtain by any means, another person to engage in commercial sexual activity, a sexually-explicit performance or the production of unlawful pornography in violation of chapter 272, or causes a person to engage in commercial sexual activity, a sexually-explicit performance or the production of unlawful pornography in violation of said chapter 272; or (ii) benefits, financially or by receiving anything of value, as a result of a violation of clause (i), shall be guilty of the crime of trafficking of persons for sexual servitude...."

      We review an unpreserved claim of error in the judge's jury instructions to determine if there was an error, and if so, whether that error caused a substantial risk of a miscarriage of justice. Commonwealth v. Kelly, 470 Mass. 682, 697 (2015).

      Separate indictments charged offenses occurring in Middlesex County and Norfolk County. The cases were consolidated for trial.

      The victim was unsure how long they stayed in the second hotel because the "days ran into each other."

      In addition, the judge reminded the jurors that they must "decide this case based on the evidence and based upon the evidence alone."

      The defendant did not ask the judge to examine the foreperson, who presumably was aware of the notes that both jurors passed to the judge.


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. Igor PEULIC.
    17-P-541
    Appeals Court of Massachusetts.
    Entered: April 13, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant appeals from his conviction of assault by means of a dangerous weapon, to wit, a firearm (ABDW). He argues that the judge erred in responding to a jury question concerning the actus reus of the crime, that the judge gave erroneous instructions on specific intent, and that the prosecutor's closing argument vouched for the credibility of police witnesses. We affirm.

Background. The jury could have found the following facts. In the early morning of February 1, 2015, Chelsea police Officer Rafael Serrano was on patrol in Bellingham Square in Chelsea when he heard two gunshots. Serrano looked up, heard a third gunshot, and saw a muzzle flash in a crosswalk approximately 400 feet from where he was parked. A man, later identified as the defendant, was in the crosswalk near the muzzle flash.

As Serrano approached in his cruiser, he saw the defendant try to conceal a firearm in his clothing. Before he could do so, Serrano yelled, "[S]top, police" and exited his cruiser with his weapon in hand. The defendant fled with the firearm in his right hand, as Serrano pursued him on foot. Serrano could see the firearm in the defendant's hand during the entire pursuit.

Chelsea police Officer Joseph Capistran was parked near Bellingham Square when he heard gunshots and a report over his radio that another officer was following the suspect on foot. Capistran drove to Chestnut Street, exited his cruiser, and saw the defendant run around the corner with "his right hand raised" and holding a firearm. Capistran yelled a number of times, "[D]rop the gun," but the defendant instead ran up the sidewalk and momentarily disappeared behind a van. When he emerged, the defendant took a few steps with the firearm at his right thigh, causing Capistran to give three more verbal warnings to drop the gun. The defendant stopped, turned to face Capistran, who was about fifteen feet away, and "raise[d]" the firearm to about waist level in a "threatening manner." The firearm was high enough that Capistran "was able to see the hole at the end of the barrel." Believing that he was in immediate danger, Capistran fired three rounds, hitting the defendant.

Meanwhile, Serrano was still pursuing the defendant on foot when he heard someone yelling "drop the gun," after the defendant ran onto Chestnut Street. When Serrano turned the corner, he saw the defendant on the sidewalk and Capistran in the street giving orders to drop the gun. Serrano observed as the defendant turned toward Capistran and "raised" the firearm to about waist level. Capistran then fired his weapon three times.

Discussion. 1. Response to jury question. During deliberations the jury asked the judge: "We need clarification of 'assault with a dangerous weapon.' Does the weapon have to be pointed at a person in order to constitute assault?" After consulting with the parties, the judge replied as follows:

"Whether assault by means of a dangerous weapon occurs depends on what facts you find. What is required is that the defendant intentionally engaged in conduct of the sort that would raise a reasonable apprehension of bodily injury.
"This determination can be made on the basis of the facts and circumstances you find surrounding the alleged crime including how the weapon's potential for harm would have appeared to a reasonable observer."

The defendant argues, for the first time on appeal, that the overall thrust of the instruction-that the jury did not have to agree that he pointed the firearm at someone-was wrong because the pointing of the firearm at Capistran was the "sole, indispensable actus reus upon which the [ABDW] charge was premised." We disagree. To the extent the jury were asking whether, as a matter of law, a person must have pointed a firearm at someone to be guilty of assault with the firearm, the answer plainly is no, as the defendant acknowledges. See, e.g., Commonwealth v. Lengsavat, 49 Mass. App. Ct. 243, 244-245 (2000). And to the extent the jury were seeking the judge's assistance on how to apply the law to the facts of the case, the judge properly declined to answer such factual questions as she was "not authorized to speak" to them. Commonwealth v. Nelson, 468 Mass. 1, 16 (2014).

While not quarreling with these propositions, the defendant argues that the Commonwealth's case in fact was limited to its allegation that he pointed the gun at Capistran, and the judge should have so instructed. But that is wrong as a factual matter. Based on Capistran's and Serrano's testimony, the jury could have found either that the defendant raised the firearm without pointing it at Capistran, or that he both raised and pointed it. Defense counsel noted this distinction several times in his closing, arguing for example that Serrano's testimony "started off as a raised [the] gun, and then with a little bit more questioning became pointed the gun." Thus, had the judge answered yes to the jury's question, as the defendant suggests she should have, she would have been commenting on factual issues as to which she was "not authorized to speak." Ibid. It was for the jury to decide what the defendant did with the firearm and whether his conduct constituted assault. The judge did not abuse her discretion in declining to resolve these factual issues herself. See Commonwealth v. Wood, 469 Mass. 266, 293 (2014), quoting from Commonwealth v. Delacruz, 463 Mass. 504, 518 (2012) ("The proper response to a jury question must remain within the discretion of the trial judge, who has observed the evidence and the jury firsthand and can tailor supplemental instructions accordingly").

The defendant also challenges the last sentence of the response, arguing that the judge erred by telling the jury that they could consider "how the weapon's potential for harm would have appeared to a reasonable observer." The judge took this language, at the prosecutor's suggestion and over the defendant's objection, from Commonwealth v. Tarrant, 367 Mass. 411 (1975). But the defendant is correct that Tarrant concerned a different issue-the standard for determining whether a neutral item used during an assault constitutes a dangerous weapon. See id. at 414-417. Because firearms are dangerous per se, see Commonwealth v. Keown, 478 Mass. 232, 249 (2017), the Tarrant standard is not relevant here. Rather, as the Commonwealth agrees, the question that the jury had to decide was whether the defendant engaged in "objectively menacing" conduct with the intent to put the victim in fear of immediate bodily harm. See, e.g., Commonwealth v. Kilburn, 438 Mass. 356, 358 (2003).

Looking at the instructions as a whole, however, we conclude that they accurately communicated the relevant legal principles. See Commonwealth v. Cassidy, 470 Mass. 201, 223 (2014), quoting from Commonwealth v. Sellon, 380 Mass. 220, 233-234 (1980) ("The judge's additional instructions 'must be read in light of the entire charge,' and the judge is 'not required to repeat all aspects of [her] prior charge' "). The judge's response to the jury question began by stating that the defendant must have "intentionally engaged in conduct of the sort that would raise a reasonable apprehension of bodily injury" (emphasis added). Likewise, in her main charge, the judge told the jury several times that the defendant had to have committed an "act" or "conduct" that would cause a reasonable apprehension of bodily harm. The judge then set out as a separate element of the crime that the defendant "in committing the assault used a dangerous weapon." In light of these instructions, we disagree with the defendant's assertion that the jury would have understood the judge's response to mean that "they could find [the defendant] guilty of [ABDW] if a loaded gun is a dangerous weapon." Rather, a rational jury would have understood that the defendant had to have committed some act or conduct that caused Capistran to reasonably apprehend harm. In these circumstances we can say "with fair assurance" that the inclusion of the Tarrant language in the judge's response did not mislead the jury or "had but very slight effect." Commonwealth v. Cruz, 445 Mass. 589, 591 (2005), quoting from Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).

2. Instructions on specific intent. The defendant next argues that the judge did not adequately convey to the jury that the defendant needed to have intended a particular result from his conduct, i.e., that Capistran would be placed in fear of bodily harm. The defendant's primary quarrel is with the judge's use of the Superior Court model jury instruction defining specific and general intent, the relevant portion of which is set out in the margin. Because the defendant did not object to the instruction-and in fact affirmatively requested that the judge give it-we review to determine whether any error created a substantial risk of a miscarriage of justice. See Commonwealth v. St. Louis, 473 Mass. 350, 359 (2015).

Both the Supreme Judicial Court and this court have recognized that defining the difficult legal concepts of general and specific intent "can obscure more than [it] illuminate[s]." Commonwealth v. Deschaine, 77 Mass. App. Ct. 506, 513 (2010). See Commonwealth v. Gunter, 427 Mass. 259, 268-269 (1998) ; Commonwealth v. Sibinich, 33 Mass. App. Ct. 246, 249 n.1 (1992) ; Commonwealth v. Henault, 54 Mass. App. Ct. 8, 13 n.7 (2002). Here, the instruction defining specific intent was unilluminating because, among other reasons, "it did not emphasize that the defendant must have acted with purpose or have intended certain consequences." Gunter, 427 Mass. at 269. We take this opportunity to reiterate that it is not " 'necessary that a judge use the common-law terms, general intent and specific intent, provided that [s]he explains to the jury the Commonwealth's burden on the specific intent element in a charged offense ...-that a defendant must not only have consciously intended to take certain actions, but that he also consciously intended certain consequences ... to result from his actions.' (Footnote omitted.)." Deschaine, 77 Mass. App. Ct. at 513, quoting from Gunter, 427 Mass. at 268-269.

Any confusion caused by the instruction did not, however, create a substantial risk of a miscarriage of justice in light of the charge as a whole. When instructing on the elements of ABDW, the judge properly explained that "[a]n assault occurs when the defendant with the intent to cause apprehension of immediate bodily harm does some act that causes such apprehension." She then reiterated that "the Commonwealth must prove beyond a reasonable doubt that the defendant possessed the intention to cause apprehension or fear of immediate bodily harm." Furthermore, the written instructions to the jury contained the following statement, which was underlined for emphasis: "The crime of assault requires the Commonwealth to prove that the defendant acted with a specific intent to act to put the person in fear of imminent bodily injury." Considered as a whole, these instructions accurately conveyed to the jury the specific intent element of the offense.

3. Closing argument. The defendant challenges the prosecutor's closing argument on two grounds. He first contends that the prosecutor impermissibly vouched for the credibility of Capistran and Serrano by referring to them several times as "trained observers." As the defendant preserved this objection at trial, we review for prejudicial error. See Commonwealth v. Kee, 449 Mass. 550, 559 n.11 (2007).

"Improper vouching occurs if 'an attorney expresses a personal belief in the credibility of a witness, or indicates that he or she has knowledge independent of the evidence before the jury.' " Commonwealth v. Ortega, 441 Mass. 170, 181 (2004), quoting from Commonwealth v. Wilson, 427 Mass. 336, 352 (1998). The prosecutor here did neither. By referring to the officers as "trained observers," the prosecutor was not arguing that they should be believed because they are officers. Rather, she was responding to defense counsel's claim that Capistran had imagined that certain things occurred during the incident because he was under stress. To counter that claim, the prosecutor asked the jury to consider Capistran's testimony about his years of experience and training, including "target shooting for accuracy and the scenario base[d] shooting, shoot, don't shoot to test his discretion in these moments." This argument was grounded in the evidence and did not constitute improper vouching. See Commonwealth v. Ahart, 464 Mass. 437, 445 (2013) (not improper vouching to argue that "officer should be believed because he was a twenty-six-year veteran of the State police[ ] ... and ... had worked on more than one hundred homicide investigations"). See also Kee, 449 Mass. at 560 (similar). Any possibility of prejudice, moreover, was mitigated by the judge's instruction that the jury should not give special consideration to the testimony of a police officer because of the nature of his employment.

The defendant next challenges the prosecutor's comment that Serrano would not "risk his entire career for the sake of an officer [Capistran] who could not even remember his name at first." As the defendant failed to preserve this objection, we review to determine whether any error resulted in a substantial risk of a miscarriage of justice. See id. at 559 n.11. We discern no error. The prosecutor's comment was a fair response to defense counsel's attack on Serrano's credibility, see Commonwealth v. Chavis, 415 Mass. 703, 713 (1993), and was grounded in the evidence-in particular, in Capistran's testimony that an officer who commits perjury would face potential "[s]uspension, termination, [and] prosecution." And again, the jury are presumed to have followed the judge's instruction that the testimony of a police officer is entitled to no special weight because of his employment.

Judgments affirmed.

      The defendant was also convicted of carrying a firearm without a license, carrying a loaded firearm without a license, and discharging a firearm within 500 feet of a dwelling. Although he filed a general notice of appeal, the defendant does not raise in his brief any claim of error regarding these convictions.

      "There are two forms of intent: general and specific. General intent is when we do things more or less unconsciously, such as sitting down in a chair. We would not do it unless our mind first resolved to do it, but it does not require any concentration or focusing of the mind.
      "Specific intent is the act of concentrating or focusing the mind for some perceptible period. It is a conscious act and the determination of the mind to do an act before the desired act is committed. In other words, an act performed with specific intent is a conscious one, done with the determination of the mind to commit the act."
      Massachusetts Superior Court Criminal Practice Jury Instructions, § 1.9 (Mass. Cont. Legal Educ. 2d ed. 2013).

      We disagree with the defendant's assertion that this statement was inaccurate because it did not refer to "the specified victim of the offense," i.e., Capistran. The statement was preceded and followed by multiple references to Capistran as the intended victim of the assault. Thus, read in context, the statement conveyed that the defendant must have intended to put Capistran in apprehension or fear of immediate bodily harm.

      The judge provided written instructions on specific intent after the jury advised that they could not hear the tape.

      Serrano also testified that he was trained in target shooting and scenario-based shooting.


text:
    COMMONWEALTH v. Keith HENDERSON.
    17-P-580
    Appeals Court of Massachusetts.
    Entered: April 13, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant was convicted of various counts of leaving the scene of an accident that caused property damage and leaving the scene of an accident that caused personal injury, and one count of assault and battery with a dangerous weapon. The operative facts involved the defendant's flight from the police in a stolen vehicle, during which he sideswiped one vehicle and crashed into two others. Occupants of two of the cars he struck were injured and testified at trial to their injuries. On direct appeal, this court affirmed the convictions as to one count of each of the above crimes. Commonwealth v. Henderson (No. 1), 89 Mass. App. Ct. 205, 205, 211 (2016) ; Commonwealth v. Henderson (No. 2), 89 Mass. App. Ct. 1112 (2016) (unpublished opinion pursuant to rule 1:28).

This appeal is from an order of the Superior Court denying the defendant's third motion for a new trial. We affirm.

Discussion. We review the denial of a motion for a new trial for abuse of discretion. See Commonwealth v. Acevedo, 446 Mass. 435, 441 (2006).

At the outset, we note that the arguments made in the defendant's third new trial motion could have been made previously, on direct appeal or in one of the defendant's first two new trial motions. Indeed, at least some of the arguments the defendant now raises were made, in whole or in part, in prior motions for a new trial that were denied, and from which no appeal was taken. All of the arguments at issue accordingly have been waived. See Commonwealth v. Balliro, 437 Mass. 163, 166 (2002) ("A motion for a new trial may not be used to compel the review of issues on which the defendant has already had appellate review or issues on which the defendant has forgone the opportunity"). Motions for a new trial are not to be used to present serially arguments that were previously advanced, or could have been.

a. The alleged Brady violation. The defendant's arguments fail on their merits, in any event. The defendant first argues that the Commonwealth violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to produce the hospital records of Christopher Zabik, one of the two persons injured during the incident. The defendant claims that the hospital records were exculpatory, because they allegedly show that Zabik was not injured when he reached the hospital, after the defendant crashed into him. The defendant, however, fails to produce any evidence that the Commonwealth had possession or control of those records prior to the conclusion of trial. There accordingly is no showing of a Brady issue. See Commonwealth v. Camacho, 472 Mass. 587, 600 (2015) (Commonwealth's duty to disclose exculpatory evidence only applies to information in possession or subject to control of prosecutor).

b. Alleged ineffective assistance of counsel. The defendant also argues that trial counsel was ineffective in investigating Zabik's injuries, and by failing to cross-examine Zabik at trial. The defendant previously challenged the sufficiency of Zabik's evidence on direct appeal, and the argument was rejected. Henderson (No. 2), supra. The defendant also made a similar ineffective assistance of counsel argument in his second motion for a new trial, which was denied and from which no appeal was taken. The current iteration of this argument is not supported in the record. There is no affidavit from trial counsel regarding whether he did or did not investigate Zabik's injuries, or regarding his trial strategy as to the cross-examination. See Commonwealth v. Martinez, 86 Mass. App. Ct. 545, 551 (2014) (when there is no affidavit provided from former counsel, judge can reasonably draw negative inference and conclude there is no affidavit because truthful affidavit would not assist defendant); Commonwealth v. Lys, 91 Mass. App. Ct. 718, 722 (2017).

Moreover, the defendant's argument is based upon the notion that the Commonwealth failed to prove that the victims suffered personal injuries that were "more than transient and trifling," and that defense counsel failed to properly investigate or exploit the Commonwealth's alleged failure. Commonwealth v. Burno, 396 Mass. 622, 627 (1986). But there were two persons who testified to being injured in the incident, not just Zabik, and the defendant's arguments do not address the other injured party. And in any event it is uncontested that the collision caused Zabik's car to spin 180 degrees in the roadway, and that Zabik was transported to the hospital on a backboard. There was accordingly considerable evidence corroborating Zabik's own testimony that he suffered injury that was more than trifling, and tending to explain trial counsel's decision not to cross-examine Zabik. It was well within the discretion of the motion judge, who was also the trial judge, to reject this argument. See generally Commonwealth v. Lucien, 440 Mass. 658, 670 (2004) (reversal for abuse of discretion is rare where motion judge is also trial judge).

We have carefully considered each of the defendant's remaining arguments, and find them without merit. The motion judge did not abuse his discretion in denying the defendant's motion for a new trial.

Order denying motion for new trial affirmed.

      In violation of G. L. c. 90, §§ 24(2)(a ) and (24)(2) (a 1/2)(1), and G. L. c. 265, § 15A(b ), respectively. The jury also convicted on one count of receiving a stolen motor vehicle, in violation of G. L. c. 266, § 28(a ).

      The defendant also argues that appellate counsel provided ineffective assistance for his direct appeal by failing to investigate and to raise an argument of ineffective assistance of trial counsel, again largely focused on the testimony of Zabik. Here as well, the defendant has not provided an affidavit from appellate counsel. Moreover, the record contains a communication from appellate counsel to the defendant explaining specifically why an ineffective assistance claim was not raised on direct appeal, which was that the defendant wished to pursue the direct appeal expeditiously.


text:
    WINSUM LIMITED PARTNERSHIP v. 17-33 WINTER STREET, LLC.
    17-P-646
    Appeals Court of Massachusetts.
    Entered: April 13, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   In these cross appeals, the plaintiff, Winsum Limited Partnership (Winsum), and the defendant, 17-33 Winter Street, LLC (Winter Street), appeal from a judgment issued by a judge of the Superior Court granting, in part, Winsum's motion for partial summary judgment. Winsum contends that the judge erred in concluding that its right to enforce a parking prohibition on the south side of Hamilton Place, a private way in Boston, has been extinguished by Winter Street's adverse use of six parking spaces for a period greater than twenty years. Winter Street maintains that any rights that Winsum had to enforce a parking ban on the whole of Hamilton Place were granted through a restriction that expired in 1980. We affirm.

1. Background. We briefly summarize the evidence presented to the judge on Winsum's motion for partial summary judgment. In 1950, Loew's Boston Theaters Company (Loew's) and The Boston Real Estate Trust (BRE Trust) entered into an indenture in which BRE Trust granted Loew's easement rights "to use [Hamilton] Place throughout its entire extent for purposes of travel on foot and with vehicles, and of light and air." In addition, the parties agreed that "[n]either party shall permit vehicles to stand in Hamilton Place longer than necessary for loading and unloading." In 1994, Winsum acquired and became successor in interest to Loew's interest. In 2007, Winter Street acquired and became successor in interest to the Janelon Trust's (Janelon) interest, which had acquired its interest from BRE Trust. Both Winsum and Winter Street became bound to the rights identified in the 1950 indenture.

Winsum's property presently houses the Orpheum Theatre and The Corner Mall, a twenty-tenant enclosed retail mall. Hamilton Place, which extends from Tremont Street, is the main access point to the Orpheum Theatre as well as a second access point to The Corner Mall. Members of the public use Hamilton Place to access both locations.

Since at least 1979, Janelon employees parked cars in six parking spaces on the south side of Hamilton Place-in direct conflict with Winsum's rights established in the indenture. In addition, any vehicle parked without Janelon's permission was towed. Janelon did not receive any complaints about the use of the parking spaces. Janelon used the spaces on a daily basis for itself and its guests from the time it acquired the property until it sold the property to Winter Street in 2007. Winsum's agent, Thomas Frawley, submitted an affidavit dated January 2016, asserting, however, that "[r]ecently, Winter Street or its agents have allowed parking in Hamilton Place."

In 2015, the board of appeal of Boston (board) granted Winter Street a variance permitting three food trucks to use the north side of Hamilton Place (as opposed to the south side where Winter Street used the six parking spaces). Subsequently, Winsum brought the present action in the Superior Court, appealing the board's decision granting the variance and seeking declaratory relief to determine the parties' rights in Hamilton Place. The Superior Court judge allowed, in part, Winsum's motion for partial summary judgment. Separate and final judgment then entered pursuant to Mass.R.Civ.P. 54(b), 365 Mass. 820 (1974). These cross appeals ensued.

2. Standard of review. "We review a grant of summary judgment de novo, construing all facts in favor of the nonmoving party." Miller v. Cotter, 448 Mass. 671, 676 (2007). Summary judgment is appropriate where there are no genuine issues of material fact in dispute and the moving party is entitled to judgment as a matter of law. Community Natl. Bank v. Dawes, 369 Mass. 550, 553 (1976). If the moving party asserts the absence of any triable issue, the nonmoving party "must respond and allege specific facts establishing the existence of a material fact in order to defeat the motion." Drakopoulos v. U.S. Bank Natl. Assn., 465 Mass. 775, 778 (2013) (quotation omitted). "[C]onclusory statements, general denials, and factual allegations not based on personal knowledge [are] insufficient to avoid summary judgment." O'Rourke v. Hunter, 446 Mass. 814, 821 (2006) (quotation omitted). See Mass.R.Civ.P. 56(e), 365 Mass. 824 (1974).

3. Discussion. a. Applicability of G. L. c. 184, § 23. Winter Street contends that the judge erred in concluding that the parking prohibition in the indenture was a feature of the affirmative easement not subject to the thirty-year limitation for restrictions set forth in G. L. c. 184, § 23. It maintains that Winsum no longer has the right to enforce the parking prohibition anywhere on Hamilton Place because the rights conferred in the indenture should be classified as a restriction that expired in 1980, thirty years after it was signed. We disagree.

"A restriction on the use of land is a right to compel the person entitled to possession of the land not to use it in specified ways." Patterson v. Paul, 448 Mass. 658, 662 (2007) (quotation omitted). Restrictions on land are generally disfavored. See ibid. Conversely, "[a]n affirmative easement 'creates a nonpossessory right to enter and use land in the possession of another and obligates the possessor not to interfere with the uses authorized by the easement.' " Id. at 663, quoting from Restatement (Third) of Property (Servitudes) § 1.2 (2000). "[A]ffirmative easement[s] allow[ ] easement owner[s] to enter [the] servient estate and do acts thereon." Ibid.

Here, the indenture is replete with affirmative easement rights that BRE Trust and Loew's granted to each other. Section 4 of the indenture gives Winsum the right "to use [Hamilton] Place throughout its entire extent for purposes of travel on foot and with vehicles, and of light and air." It also prohibits both parties from allowing "vehicles to stand in Hamilton Place longer than necessary for loading and unloading." The indenture specifically confers on Winsum the right to enter and use land in the possession of another, and preserves the right to pass along the entire way, free of obstacles, except for temporary parking. This right was of value given the nature of the commercial operations, which included a theater. The rights identified in the indenture are properly classified as an affirmative easement. See Patterson, supra at 664. Cf. Labounty v. Vickers, 352 Mass. 337, 347-348 (1967) ("A restriction on the use of land is a right to compel the person entitled to possession of the land not to use it in specified ways.... But the holder of such a restrictive right has no right to use the land on which he holds the restriction as he would if he held an affirmative easement" [quotation omitted] ). As a matter of law, the judge correctly determined that Winsum holds an affirmative easement and thus its rights established in the indenture are not subject to the thirty-year limitation set forth in G. L. c. 184, § 23.

b. Adverse use. Winsum contends that the judge erred in determining that its right to enforce its affirmative easement, as it relates to the parking proviso on the south side of Hamilton Place, has been extinguished.

In order to extinguish an easement there must be occupation of the easement that is irreconcilable with its use as a way. The use must be open, notorious, adverse, and without interruption for more than twenty years. Brennan v. DeCosta, 24 Mass. App. Ct. 968, 969 (1987), citing Lemieux v. Rex Leather Finishing Corp., 7 Mass. App. Ct. 417, 422-424 (1979). Here, Winter Street produced evidence that cars parked in the parking spaces on the south side of Hamilton Place for a period greater than twenty years, contrary to the provision of the indenture which prohibited "vehicles to stand in Hamilton Place longer than necessary for loading and unloading."

Winter Street provided affidavits that its immediate predecessor, Janelon, used the south side of Hamilton Place for parking between 1979 and either 2007 or 2012. In addition, the affidavit of Janelon's property manager, Judee Shupe, stated that Janelon maintained the six parking spots and only people authorized by Janelon were allowed to park in the spots. This evidence satisfied Winter Street's burden to show, on summary judgment, that its use of the parking spaces was continuous, adverse, open, and notorious. See Brennan, supra. Furthermore, Winter Street provided evidence that it had used the south side of Hamilton Place "in a manner so inconsistent with [the rights provided in the indenture]." Lemieux, supra at 423 (quotation omitted).

Nonetheless, Winsum claims that the affidavit of its agent, Frawley, creates a dispute of material fact as to whether Winter Street satisfied the twenty-year period necessary for adverse use. The Frawley affidavit states that "[r]ecently, Winter Street or its agents have allowed parking in Hamilton Place." The affidavit not does raise a dispute of material fact because it fails to challenge the evidence of adverse, exclusive, and continuous use beginning in 1979. See Dawes, 369 Mass. at 555-556 ("vague and general allegations of expected proof" are not enough to defeat motion for summary judgment [quotation omitted] ). In light of the evidence submitted by Winter Street that Janelon continuously used the south side of Hamilton Place for automobile parking for a period greater than twenty years, some specific factual averments were necessary to raise an issue of material fact. See id. at 559-560. Partial summary judgment in favor of Winter Street extinguishing so much of the affirmative easement that precluded the parking of automobiles on the south side of Hamilton Place was proper. ,

c. Modification of the judgment. The final judgment states that the "parking prohibition in Section 4 of the 1950 Indenture Agreement has been extinguished with respect only to the parking of six automobiles along the southerly side of Hamilton Place." Winter Street contends that the judge abused her discretion by declining to amend the final judgment to refer more liberally to "vehicles," rather than automobiles, to avoid potential ambiguity. The judge concluded that the judgment, as entered, "accurately states the findings of the Court." After careful review of the record, the evidence shows that the six parking spaces were predominantly used to park automobiles. The judge properly limited Winsum's affirmative easement in accordance with Winter Street's use. We discern no abuse of discretion.

Judgment affirmed.

      Janelon, for a fee, gave Live Nation, a booking agent that booked acts for the Orpheum Theatre, a Winsum tenant, permission to use the parking spaces for tour buses, vans, and trucks to unload equipment.

      Frawley's responsibilities as an agent of Winsum included the day-to-day oversight of the property at issue for the past thirty-one years.

      For example, in section 2 of the indenture, Loew's grants to BRE Trust "common rights in Music Hall Place," including the right to "install, maintain and use connections" with various utilities. In section 3, BRE Trust grants to Loew's "the common ... right to use for travel on foot only, the area between Music Hall Place and the south-east wall of the building known as 17-19 Winter Street."

      Based on the language of the indenture, Winter Street's suggestion that portions of the indenture were easements while the parking prohibition was a restriction is not consistent with a reading of the document as a whole. See Sheftel v. Lebel, 44 Mass. App. Ct. 175, 182 n.8 (1998) (language in indenture "cannot be read in isolation ... but must be read in its proper context, as part of the instrument as a whole").

      Although Winsum moved for partial summary judgment, the judge granted partial summary judgment in favor of Winter Street, as she was permitted to do. See Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002). For this reason, we review the entry of summary judgment as if Winter Street was the moving party.

      Shupe stated in her affidavit that she was the property manager of Janelon between 1979 and 2007 and "worked there 5-6 days a week during [that] time period."

      Winsum contests that Winter Street's use was neither "exclusive" nor "uninterrupted" as Live Nation used the parking spaces when there were shows at the Orpheum Theatre. This argument is unavailing for two reasons. First, the Cinelli affidavit states that "when the Orpheum Theatre had shows or concerts, it would pay a fee to [Winter Street] to park buses, trucks and other motor vehicles." Even if Live Nation used the parking spots, it did so with the permission of Winter Street. Second, the affidavits state that Live Nation has used the parking spots since 2004. By that time Winter Street had already established its adverse use for more than twenty years.

      The partial extinguishment of its easement as it pertains to the south side of Hamilton Place does not extinguish Winsum's easement as it relates to the northerly side of Hamilton Place. See Post v. McHugh, 76 Mass. App. Ct. 200, 205 (2010) (partial adverse use can extinguish easement to extent of such use).

      Having determined that Winsum's easement has been partially extinguished due to Winter Street's adverse use, we decline to address the abandonment or estoppel arguments.

      We review a decision on a motion to alter or amend a judgment for an abuse of discretion. Quarterman v. Springfield, 91 Mass. App. Ct. 254, 260 (2017).


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    COMMONWEALTH v. Carlos M. RIVERA.
    17-P-919
    Appeals Court of Massachusetts.
    Entered: April 13, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The Commonwealth appeals from a District Court order suppressing the fruits of a search of the defendant, Carlos M. Rivera. Although this is a close case, we agree that the police lacked probable cause to search the defendant at the time of the search. Accordingly, we affirm.

1. Standard of review. We adopt the subsidiary findings of fact of the motion judge, which we accept absent clear error, reserving for independent review her ultimate findings and her conclusions of law. See Commonwealth v. Anderson, 461 Mass. 616, 619 (2012) ; Commonwealth v. Charley, 91 Mass. App. Ct. 223, 224 (2017).

2. Discussion. The Commonwealth properly concedes that the second detective needed probable cause to search the defendant. Although the observations made by the first detective established reasonable suspicion to conduct an investigatory stop, see Commonwealth v. Sweezey, 50 Mass. App. Ct. 48, 51 (2000), the second detective immediately conducted a search and had no basis to believe the defendant was armed or dangerous. Accordingly, the search must be "justified by probable cause and exigent circumstances." Commonwealth v. Washington, 449 Mass. 476, 483 (2007).

Cases in which observation of a hand-to-hand transaction in a high drug area establish probable cause generally involve additional incriminating evidence. For example, the involvement of a known drug dealer or known drug user is powerful evidence supporting probable cause. See Commonwealth v. Kennedy, 426 Mass. 703, 709-710 (1998) ; Commonwealth v. Freeman, 87 Mass. App. Ct. 448, 449, 453 n.5 (2015). Possession of narcotics or drug paraphernalia by one of the parties after the exchange supports probable cause. See Commonwealth v. Mora, 477 Mass. 399, 400, 404 (2017). Cf. Commonwealth v. Rivera, 425 Mass. 633, 635, 648-649 (1997) (sufficient evidence to support conviction). A complex transaction, in which the money or the item travels through a third person, also supports probable cause. See Commonwealth v. Santaliz, 413 Mass. 238, 241 (1992) ; Freeman, supra at 450-451 & n.2.

This case contains none of those additional factors supporting probable cause. Although this case is somewhat stronger than Commonwealth v. Clark, 65 Mass. App. Ct. 39, 44 (2005), in light of the fact that the apparent buyer was waiting by his car for the defendant, it lacks the additional evidence of criminality that established probable cause in Santaliz, Rivera, Kennedy, and Freeman.

Finally, although the defendant's statement that he "sold that guy an eighth of weed" established probable cause, see Commonwealth v. Villalta-Duarte, 55 Mass. App. Ct. 821, 824 (2002), the judge found that the defendant made this statement after the second detective had initiated the search. As we discern no clear error in that finding, the statement cannot be used to justify a search that occurred prior to the statement's being made. Accordingly, we affirm the suppression of the fruits of the search.

Order allowing motion to suppress affirmed.


text:
    Jose FARIA v. The PORTUGUESE AMERICAN CIVIL LEAGUE OF LOWELL.
    17-P-932
    Appeals Court of Massachusetts.
    Entered: April 13, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   At issue in this appeal is whether the exclusivity provision in the Workers' Compensation Act (Act), G. L. c. 152, § 23, bars the plaintiff's negligence claim. We conclude that it does and, therefore, affirm the judgment entered by a Superior Court judge dismissing the plaintiff's complaint.

The plaintiff, Jose Faria, claims that he was hired as an independent contractor in his profession as a chef by the defendant, The Portuguese American Civil League of Lowell (the League). On January 27, 2015, Faria was entering the League's function hall when he slipped and fell on an accumulation of ice, causing him to suffer a displaced trimalleolar fracture of his right ankle. As a result of the injury, Faria incurred more than $28,000 in medical expenses, lost wages, "permanent impairment, [and] pain and emotional anguish." Following the injury, Faria filed a worker's compensation claim against the League, asserting that he was an employee. The League denied liability, claiming, among other things, that Faria was an independent contractor, not an employee. Eventually, the parties agreed to settle the case for a lump-sum payment under G. L. c. 152, § 48. The settlement agreement states in relevant part as follows:

"In view of the significant issues as to liability, specifically whether or not an employer/employee relationship existed, as well as additional issues raised as to credibility and [average weekly wage], it was determined that it would be in the employee's best interest to settle his case rather than to proceed with litigation with the associated risks and uncertainties. Settlement will provide Mr. Faria with some certainty and allow him to put this matter behind him and move forward with his life. It should be noted that this settlement is on a no liability basis and that the insurer will not be responsible for the payment of future medical treatment related to the injury. The insurer has, however, agreed as part of this settlement to pay for reasonable, necessary and related medical treatment incurred by Mr. Faria as of the date of the approval of this settlement."

After Faria brought the present negligence action against the League, the League filed a motion to dismiss for failure to state a claim, Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), arguing that Faria's claim is barred by the § 48 settlement. For the reasons that follow, the motion to dismiss was properly allowed.

General Laws c. 152, § 23, as amended by St. 1985, c. 572, § 34, provides, in relevant part: "[i]f an employee accepts payment of compensation under this chapter on account of personal injury or makes an agreement under section forty-eight, such action shall constitute a release to the insured of all claims or demands at common law, if any, arising from the injury." Although Faria accepted payment of compensation on account of personal injury and made an agreement under § 48, he argues that his negligence claim is not barred by § 23 because it was not determined in the Department of Industrial Accidents (DIA) proceedings whether he is an employee or independent contractor. However, § 23 bars Faria's claim even though his employment status was not determined (or admitted to) in the worker's compensation proceedings. See Kniskern v. Melkonian, 68 Mass. App. Ct. 461, 465-466 (2007) (party who entered into § 48 settlement barred from asserting tort claim against employer notwithstanding that party claimed he was independent contractor). Here, as in Kniskern, "the problem with [Faria's] argument is that employee status is a condition to recovery of the lump sum settlement under the Act." Id. at 465. If Faria is an independent contractor, and not an employee, he is outside the scope of the Act and could not have received a lump-sum settlement pursuant to § 48. See Foley v. Polaroid Corp., 381 Mass. 545, 549 (1980) ("one must be found to be an employee before compensation may be had under the act"); Murphy v. Commissioner of Dept. of Industrial Accidents, 415 Mass. 218, 222 (1993) ("The Act applies only to employees who come within its ambit ... [and] requires that participating employees waive their right to sue in tort for work-related injuries").

In sum, Faria "pursued his claim through the administrative procedures established by the DIA," Maxwell v. AIG Domestic Claims, Inc., 460 Mass. 91, 111 (2011), he and the League "participat[ed] in the DIA benefit determination process," id. at 114, and they agreed upon a lump-sum settlement under § 48. By the express terms of § 23, that settlement was Faria's exclusive remedy against the League for his injury. See id. at 107 ; Kniskern, supra at 466.

Judgment affirmed.

      Both parties submitted additional documents that related to Faria's worker's compensation claim in support of their respective positions on the motion to dismiss. When Faria asked that the motion be converted into one for summary judgment, the League stated, "[t]hat would be fine" because "there are not issues of material fact as to the grounds" for its motion to dismiss. The judge took "judicial notice" of the additional documents, but he did not convert the motion into one for summary judgment. In light of the express provisions of the Act, the outcome is the same whether the motion is viewed as one to dismiss or for summary judgment.

      Nothing in Wentworth v. Henry C. Becker Custom Bldg. Ltd., 459 Mass. 768 (2011), requires us to revisit Kniskern. See Wentworth, supra at 773 n.7 (citing with approval Kniskern's holding "that the plaintiff's employment status was established when the plaintiff accepted a lump-sum settlement pursuant to G. L. c. 152, § 48, which only applies to employees"). In Wentworth, the defendant was not an insured, the plaintiff's decedent and ward were not employees of the defendant, and the defendant was therefore not immune from the plaintiff's common-law claims.

      Lee v. International Data Group, 55 Mass. App. Ct. 110 (2002), upon which Faria relies for the proposition that only the DIA can decide whether he is an employee within the meaning of the Act, is inapposite. Whereas the plaintiff in Lee never "filed a claim with DIA ... or made any effort to obtain compensation for her injuries other than by launching a series of court actions" in which she claimed to be an employee of the defendant, id. at 116, Faria proceeded in the DIA under a claim that he was the League's employee. The League disputed that claim, it and Faria agreed to settle the claim, and Faria's Superior Court complaint does not seek a declaration of his employment status. As such, "the issue of [Faria]'s employment status" was not before the Superior Court. Id. at 114-115.

      At oral argument, Faria contended that his claim for pain and suffering is not barred because the § 48 settlement did not compensate him for those injuries. See Curry v. Great Am. Ins. Co., 80 Mass. App. Ct. 592, 596 (2011). We decline to address this argument, which is not made in Faria's brief, see Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975), except to note that the complaint's bare allegation that Faria suffered "pain and emotional anguish" as a result of the League's negligence "does not constitute an allegation of fact" sufficient to withstand a motion to dismiss. Polay v. McMahon, 468 Mass. 379, 388 (2014).


text:
    COMMONWEALTH v. Rinaldo DELGALLO.
    17-P-649
    Appeals Court of Massachusetts.
    Entered: April 19, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      The parties agree that the defendant's name is "Rinaldo Del Gallo, III." In accordance with our custom, however, we spell the defendant's name as it appears on the criminal complaint.

   In this consolidated appeal, Rinaldo Delgallo appeals from his conviction of one count of assault and battery, the order denying his motion for reconsideration of his motion to dismiss pursuant to Mass.R.Crim.P. 36, 378 Mass. 909 (1979) ( rule 36 ), and the order denying his motion for a new trial. We affirm.

Background. We summarize the relevant facts as they could have been found by the jury, reserving certain factual and procedural details for the discussion below.

In October, 2012, the defendant and the victim were roommates. They lived in a four-bedroom house along with the victim's girl friend, her two children, and an additional roommate. The victim and defendant experienced conflict "[a]ll the time."

On October 15, 2012, the victim observed the defendant's papers and other belongings on a table of the victim's in the living room. The victim asked the defendant to keep his belongings off of that table and moved the defendant's belongings onto the defendant's table. The victim testified that the defendant began yelling, tried to grab the belongings from the victim, hit the victim in the face, and grabbed the victim and choked him. The victim called the police. An officer responded and spoke with both men. The officer did not observe physical injuries on the defendant. The officer observed that the victim's face was red and swollen and his neck was red and had some scratches. At trial, the Commonwealth introduced photographs of marks on the victim's arm, neck, and face.

Discussion. 1. Speedy trial. a. Rule 36. The defendant was scheduled for trial on March 5, 2014, which the parties agree was day 364 under rule 36. That rule provides that a defendant must be tried "within twelve months after the return day in the court in which the case is awaiting trial." Mass.R.Crim.P. 36(b)(1)(C). However, some periods of time are excluded under the rule or if the defendant "acquiesced in, was responsible for, or benefited from the delay." Commonwealth v. Davis, 91 Mass. App. Ct. 631, 632 (2017), quoting from Commonwealth v. Spaulding, 411 Mass. 503, 504 (1992). "To overcome the motion to dismiss, the Commonwealth had the burden of justifying a delay ... beyond the one year period allowed by the rule." Commonwealth v. Fleenor, 39 Mass. App. Ct. 25, 27 (1995), quoting from Commonwealth v. Wysocki, 28 Mass. App. Ct. 45, 46 (1989). "In order to meet its burden, the Commonwealth does not have to demonstrate that the defendant assented, on the record, to the various continuances of the trial dates. Rather, ... it is the obligation of defense counsel to object to delay (emphasis supplied)." Fleenor, supra (quotation omitted). "A failure to object to a continuance or other delay constitutes acquiescence." Commonwealth v. Tanner, 417 Mass. 1, 3 (1994).

Here, the parties do not dispute that, on day 364, the case was continued because the judge scheduled for the trial session was absent. The case was continued to April 29, 2014. On April 29, before trial started, the defendant filed a motion to dismiss pursuant to rule 36. The question is whether the defendant properly objected to the continuance to April 29.

The Commonwealth relies on the docket, which is devoid of a defense objection to the continuance. "For purposes of a rule 36 calculation of excludable periods, the docket and the clerk's log are prima facie evidence of the facts recorded therein." Commonwealth v. Roman, 470 Mass. 85, 93 (2014). The docket also does not indicate that there was a judge present in the court room to note any objection; rather, the docket reflects that the judge was "[w]aived" that day.

The defendant contends, however, that there was a judge briefly present in the session to announce the scheduled judge's absence and that trial counsel orally objected to the continuance while that other judge was in the court room. The judge on the motion for reconsideration did not hear sworn testimony on the issue, but the defendant addressed the motion judge and stated that his memory was that an objection was made and a judge was present. He also argues that the docket in this case is not controlling because there is a confirmed error in an earlier docket entry. However, past errors are insufficient to conclude that the March 5 docket entry was erroneous. See Commonwealth v. Denehy, 466 Mass. 723, 727 (2014) (defendant's contention that docket erroneously reflected that rule 36 motion was withdrawn was unsupported as "[a] party's self-serving and uncorroborated assertions of what transpired at trial cannot serve as grounds to contend that the official record of the proceedings, prepared by a neutral court official, was falsified" [quotation omitted] ). Simply put, the motion judge was not required to credit the defendant's self-serving statements. See Commonwealth v. McWilliams, 473 Mass. 606, 621 (2016) ("[A] motion judge may reject a defendant's self-serving affidavit as not credible" [quotation omitted] ).

Additionally, the defendant argues that a session clerk was present in the court room and had the power to note the objection. Any objection that was made to the clerk was inadequate. See Fleenor, 39 Mass. App. Ct. at 28 n.4 (defense counsel following "local practice" and objecting to session clerk was insufficient to object under rule 36 ).

The defendant was obligated to formally object to a continuance to preserve his rule 36 rights; he failed here to meet his obligation and demonstrate that he adequately objected to the continuance before a judge. See Commonwealth v. Taylor, 469 Mass. 516, 524 (2014) (defendant is required to "explicitly and formally object, on the record, to each and every proposed continuance or delay"); Commonwealth v. Bourdon, 71 Mass. App. Ct. 420, 428 (2008) ("Where obligations to inquire and object exist, defense counsel must do more than inquire and register the defendant's objection over the back fence. Such casual steps do not suffice"). We therefore discern no error in the denial of the defendant's motion for reconsideration of the motion to dismiss pursuant to rule 36.

b. Ineffective assistance of counsel. The defendant argues in the alternative that the motion judge erroneously denied his motion for a new trial because trial counsel's failure to properly object to the continuance amounted to ineffective assistance of counsel.

Where the defendant's motion was based on a claim of ineffective assistance of counsel, we review by applying the familiar two-part test: (1) whether the defendant demonstrated "serious incompetency, inefficiency, or inattention of counsel-behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer," and, if found, (2) whether counsel's poor performance "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

The motion judge found that trial counsel's failure to object was ineffective assistance, but that the defendant did not show that the failure was prejudicial. We agree. Even if the defendant properly objected on March 5, the Commonwealth's time to try the case pursuant to rule 36 did not pass until the following day. The defendant did not provide any evidence that, had counsel properly objected, the Commonwealth could not have requested another judge for trial that same day, or that the case could not have been continued one day and tried in a timely manner.

The defendant also asserts that, on March 7, 2014, two days after the continuance was ordered and one day after the speedy trial deadline, he contacted trial counsel via electronic mail and asked trial counsel to file a written objection that the defendant drafted to preserve the defendant's rule 36 rights. Although a defendant may file a written objection to a continuance, see Fleenor, supra at 28 n.4, the defendant did not show that he experienced prejudice from trial counsel failing to file what would have been an untimely objection. See Spaulding, 411 Mass. at 505-506 ("[A] defendant who does not object when a trial date passes without any action being taken will be deemed to have acquiesced in that delay"), and cases cited. Contrast Denehy, 466 Mass. at 728-729 (trial counsel was ineffective for failing to preserve meritorious rule 36 motion and counsel's errors prejudiced defendant by requiring him to proceed to trial). We cannot conclude that trial counsel's failure to object to the continuance prejudiced the defendant.

2. Additional alleged errors. The defendant also challenges the cumulative effect of several trial errors. Where the defendant did not object at trial, "we must determine whether the error created a substantial risk of a miscarriage of justice." Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).

The defendant contends that the Commonwealth elicited improper testimony from the police officer who responded to the victim's 911 call. The officer testified that the victim told him that the defendant "approached him in an aggressive manner ... and that he then pushed [the victim] down into a couch, choked him briefly, and then punched him in the face." However, the officer's testimony on this point was merely cumulative of the victim's testimony. See Commonwealth v. Wilson, 427 Mass. 336, 348 (1998) ("The improperly admitted hearsay did not prejudice the defendant because it was merely cumulative of properly admitted evidence ... [and] the defendant was not prejudiced in light of the other evidence of his guilt" [citations omitted] ).

The defendant further argues that trial counsel was ineffective for failing to request a defense of property instruction. See Commonwealth v. Donahue, 148 Mass. 529, 531 (1889) ("[A] man may defend or regain his momentarily interrupted possession by the use of reasonable force"). The defendant does not contend that he was entitled to hit the victim and argues on appeal only that he had the right to take back his papers. Trial counsel argued that the defendant acted in self-defense after the victim pushed and kicked the defendant, and that the defendant physically responded thereafter. The defendant's own testimony was that he grabbed the files and pushed and hit the victim after the victim pushed and kicked the defendant. Trial counsel's request for an instruction on self-defense but not on defense of property was not ineffective where the defendant was not entitled to the defense of property instruction. See Commonwealth v. Gill, 37 Mass. App. Ct. 457, 462 n.3 (1994).

The defendant also contends that the Commonwealth mischaracterized his testimony and improperly argued in closing that the defendant "could have simply walked off" because only a two-foot high circular table was between him and the door. The defendant testified that the table was the only furniture between himself and the door, but that the victim was also between himself and the door. Even if error, "it does not constitute reversible error in the entire context of this case." Commonwealth v. O'Connell, 432 Mass. 657, 660 (2000), and cases cited. We similarly consider the challenges to certain opinion testimony and testimony of prior bad acts. "After review of the entire record, we reject the defendant's argument that there were several errors which, although individually insufficient to require reversal, cumulatively present a substantial risk of miscarriage of justice." Commonwealth v. Zavala, 52 Mass. App. Ct. 770, 777 (2001) (quotation omitted).

Judgment affirmed.

Order denying motion for reconsideration of motion to dismiss for violation of Mass.R.Crim.P. 36 affirmed.

Order denying motion for new trial affirmed.

      Consistent with the docket for March 5, 2014, there was no audio recording that day, as, according to the docket entry regarding the defendant's request for the recording, "there was no session and the jury session lost [its] judge."

      The record from the motion for reconsideration does not include affidavits from either the defendant or trial counsel. The record does include affidavits from the defendant and trial counsel that were filed in support of the defendant's subsequent motion for a new trial. The defendant asserts in his affidavit that trial counsel orally objected to the continuance. Defense counsel states in his affidavit that he does not recall whether he objected to the continuance on March 5, 2014, or who was present in the court room. In reviewing the order denying the motion to reconsider, we cannot consider affidavits not before the motion judge at the time of the decision. The matter is of no moment, however, because the defendant stated his memory to the motion judge, consistent with his later-filed affidavit.

      The docket for September 24, 2013, does not reflect that the defendant objected to a continuance that day. However, the motion judge listened to the audio recording of that date and found that the defendant objected to the continuance.

      After the defendant's motion for reconsideration was denied, the defendant filed a motion to "settle [the] record pursuant to appellate procedure rule 8(e)" as to whether a judge was present at any point on March 5, 2014. The docket states that no action was taken on the motion to settle the record, as the judge who the defendant alleges was present "would not remember one way or another." The defendant did not file a notice of appeal from this order. The defendant's second notice of appeal states that he appeals from the ruling on his "Motion for Evidentiary Hearing To Correct Incomplete and Ambiguous Docket." The defendant, in his motion for reconsideration, asked in the alternative that the judge take additional evidence to reconstruct the record. The defendant pursues no argument on this subject on appeal.

      The motion judge declined to speculate about whether the trial could have been scheduled on the following day. However, he did note that the following day was a Thursday, "a day that the Pittsfield District Court regularly has jury trials."

      The defendant initially miscalculated the rule 36 deadline and indicated that March 27, 2014, was the last day that the case could be tried without violating rule 36.

      The defendant also raised this argument in his motion for a new trial. Trial counsel stated in a sworn affidavit that he did not believe that there was a basis for the instruction.


text:
    KIRIN PRODUCE CO., INC. v. LUN FAT PRODUCE, INC., & others.
    17-P-509
    Appeals Court of Massachusetts.
    Entered: April 12, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Peter Tam, trustee of Tam Realty Trust, and Richard Q. Chen.

   The plaintiff, Kirin Produce Co., Inc. (Kirin), appeals from a judgment entered by a judge of the Superior Court dismissing its amended complaint for failure to allege facts plausibly suggesting that the parties entered into an enforceable agreement that satisfies the Statute of Frauds, and declaring the rights of the parties. In so doing, the judge concluded that Kirin is not entitled to specific performance, nor to challenge any agreement by Lun Fat Produce, Inc. (Lun Fat), to sell Lun Fat's business and property to a third party. We affirm the portion of the judgment allowing the motion to dismiss; because the amended complaint was dismissed, we vacate the declaratory judgment.

Background. Kirin's amended complaint alleges the following facts. Kirin is a produce wholesaler with two retail stores in Boston. Lun Fat also is a produce wholesaler with a retail store in Boston (business); its principal place of business (not its retail store) is located at 93 Newmarket Square, Boston (property). Peter Tam is the president and treasurer of Lun Fat and is also the trustee of the Tam Realty Trust, which owns the property. (We refer to Lun Fat and Tam collectively as Lun Fat.) In or about May, 2015, the parties began discussing the possibility of Kirin purchasing Lun Fat's business along with the property. Over the next several months, the parties discussed the terms of a potential deal and, in December, 2015, they exchanged a draft letter of intent. Thereafter, discussions stalled and the letter of intent was never finalized or signed by either party.

In August, 2016, Kirin became aware that a third party was interested in purchasing the Lun Fat business and property. On August 22, 2016, Kirin proposed to Lun Fat, through a broker, Kai Lau, a set of terms for it to purchase Lun Fat's business and property. Kirin sent two additional revised offers on September 7 and 12, 2016, apparently hoping to spark Lun Fat's interest in selling to Kirin. The September 12, 2016, offer was described as Kirin's "serious, reasonable 'Lease and Then Buy' Offer." Lun Fat responded (on September 15, 2016) with nine changes to the terms. Kirin considered this Lun Fat's counteroffer. On September 16, 2016, Kirin agreed to four of Lun Fat's changes (items numbered 1, 3, 4, and 6), but countered with changes to items numbered 2, 5, 7, 8, and 9. After a face-to-face meeting between the parties on September 18, 2016, Lun Fat informed Kirin on September 23, 2016, that it was "NOT ready to accept the latest Offer on the table."

On September 23, 2016, Lau suggested to Kirin that "if you are really interested in this deal, please MARK UP what you can agree in the spread sheet and send it back to me. I think if you can accept ALL [Lun Fat]'s changes, then [Lun Fat] will be 'leaning towards to sell [sic ] it to you.' " Thereafter, on September 24, 2016, Kirin accepted all nine of Lun Fat's suggested changes in the September 15 "counter offer," but added another item, "item # 10 ... as part of the final offer," revising the liquidated damages term. Kirin also indicated that "[a] check of $10,000 as deposit for this deal is ready for [Lau] to pick up in [Kirin's] office." Lun Fat did not respond to this "final offer," and subsequently sold the business and property to a third party, Richard Q. Chen.

On October 19, 2016, Kirin's attorney, Mark Furman, sent a letter to Lun Fat purporting to "put [it] on notice that [Lun Fat has] entered into an enforceable agreement with Kirin and that [Lun Fat] must conclude the agreed-upon sale to Kirin." In the letter, Furman asserted that, because Kirin had accepted Lun Fat's September 15, 2016, counteroffer, Lun Fat "cannot revoke the offer at this time without breaching the parties' agreement, the implied covenant of good faith and fair dealing, and Mass. Gen. Laws ch. 93A."

On October 24, 2016, Lun Fat responded to Kirin's demand for specific performance, indicating that the parties differed in their interpretations as to what had transpired during the September discussions; according to Lun Fat, only the "possibility" of selling the business and property was discussed, but "there was never any firm decisions reached to advance the deal(s) beyond negotiating what it would take to convince" Lun Fat to sell. In this letter, Lun Fat asserted that Kirin's "acceptance of all the items contained in the worksheet(s) did not automatically result in an enforceable agreement but simply would've positioned [Kirin] in a more competitive situation which may have seen [Lun Fat] leaning towards selling to them." According to Lun Fat, as of October 24, 2016, it still had not received from Kirin any formal written offer for it "to accept, reject, or counter." On October 31, 2016, Kirin filed a complaint against Lun Fat seeking a declaratory judgment that the parties had entered into an enforceable agreement, an order of specific performance of the contract to sell Lun Fat's business and property, and damages.

After a hearing on Lun Fat's Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), motion to dismiss, the judge concluded that the parties had never entered into an enforceable agreement that satisfied the Statute of Frauds, and dismissed Kirin's claims for specific performance, breach of contract, implied covenant of good faith and fair dealing, and violation of G. L. c. 93A. The judge also entered a declaration that there was no enforceable contract between the parties, and that, as a result, Kirin has no right to challenge Lun Fat's sale of the business and property to Chen. Kirin timely appealed.

Discussion. " 'We review the allowance of a motion to dismiss de novo,' Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011), accepting as true 'the factual allegations in the plaintiff['s] complaint, as well as any favorable inferences reasonably drawn from them.' " Genovesi v. Nelson, 85 Mass. App. Ct. 43, 46 (2014), quoting from Ginther v. Commissioner of Ins., 427 Mass. 319, 322 (1998). "Although detailed factual allegations are not required, a complaint must set forth 'more than labels and conclusions. ... Factual allegations must be enough to raise a right to relief above the speculative level.' " Ibid., quoting from Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008).

"Contract formation requires a bargain in which there is a manifestation of mutual assent to the exchange." I & R Mechanical, Inc. v. Hazelton Mfg. Co., 62 Mass. App. Ct. 452, 454-455 (2004), citing Situation Mgmt. Sys., Inc. v. Malouf, Inc., 430 Mass. 875, 878 (2000). See Restatement (Second) of Contracts § 17(1) (1981). This manifestation "between contracting parties generally consists of an offer by one and the acceptance of it by the other." Id. at 455. See Restatement (Second) of Contracts § 22(1) (1981). "It is elementary law that an offer must be accepted in the terms in which it is made in order to become a binding contract, and that a conditional acceptance or one that varies from the offer in any substantial respect is in effect a rejection and is the equivalent of a new proposition." Moss v. Old Colony Trust Co., 246 Mass. 139, 148 (1923). See Restatement (Second) of Contracts §§ 58 - 59 (1981).

"An enforceable agreement requires (1) terms sufficiently complete and definite, and (2) a present intent of the parties at the time of formation to be bound by those terms." Targus Group Intl., Inc. v. Sherman, 76 Mass. App. Ct. 421, 428 (2010). "The controlling fact, however, is always the intention of the parties, and that will normally present a question of fact for the judge." Levenson v. L.M.I. Realty Corp., 31 Mass. App. Ct. 127, 130 (1991) (citation omitted).

Nonetheless, here, no enforceable agreement was ever formed, even on the allegations in Kirin's amended complaint. First, the terms of the purchase and sale were never sufficiently definite. While the parties agreed on many of the terms offered, as indicated in Kirin's September 24, 2016, electronic mail message (e-mail), Kirin also added a tenth term, providing for $1 million in liquidated damages for a breach of the "Sale Agreement." See note 3, supra. Second, it is clear from this record that the parties had never reached a meeting of the minds, but rather, were engaged in ongoing negotiations over fluctuating terms contained in the ongoing e-mail exchanges. The language included on Kirin's spreadsheet offers expressly stated that they were "Draft Only" and "estimated ONLY, to be finalized by both parties!! Subject to change." In rejecting Kirin's September 12 "revised offer," Lun Fat countered with changes to nine separate items; in addition, Lun Fat expressly stated on September 23 that it was "NOT ready to accept the latest Offer on the table." In fact, Lau advised Kirin later on September 23 that if it accepts each of Lun Fat's nine changes, Lun Fat would be "leaning towards" consummating the deal. Kirin's September 24 "final offer" accepted each of the nine items, but then added a new term pertaining to liquidated damages. Despite the parties' numerous e-mails and meeting to discuss the potential sale, it does not appear even from the detailed facts alleged in Kirin's amended complaint that the essential terms of the deal were agreed upon, or that either party had "a present intention to be bound by [an] agreement." Situation Mgmt. Sys., Inc., supra.

In addition, no written document formalizing the agreed upon terms ever materialized. We agree with the judge that, because the sale of the property was an integral part of the total transaction, the proposed deal was subject to the Statute of Frauds. "[T]he Statute of Frauds bars suit '[u]pon a contract for the sale of lands ... or of any interest in or concerning them ... [u]nless the promise, contract or agreement ... is in writing and signed by the party to be charged therewith.' G. L. c. 259, § 1." Hurtubise v. McPherson, 80 Mass. App. Ct. 186, 188 (2011). "Whether a writing satisfies the Statute of Frauds is a question of law." Simon v. Simon, 35 Mass. App. Ct. 705, 709 (1994). Since no one on Lun Fat's behalf signed a writing incorporating the agreement Kirin is seeking to enforce, the requirements of the Statute of Frauds are not met and, therefore, there is no enforceable contract. See Harrington v. Fall River Hous. Authy., 27 Mass. App. Ct. 301, 306 (1989).

Because there was no enforceable contract, we agree with the judge that Kirin's breach of contract and implied covenant of good faith and fair dealing claims fail. Kirin's alleged G. L. c. 93A violation, grounded wholly on the breach of contract claim, fails as well. Finally, because the "actual controversy" raised in Kirin's amended complaint did not withstand a motion to dismiss, we vacate the declaratory judgment. Galipault v. Wash Rock Invs., LLC, 65 Mass. App. Ct. 73, 83 (2005). See G. L. c. 231A, § 1.

The portion of the judgment declaring the rights of the parties is vacated. The remainder of the judgment is affirmed.

      The back and forth negotiations were done via electronic mail messages (e-mails). Each of Kirin's offers consisted of a spreadsheet containing various proposed terms and entitled "Summary of 'Lease Then Buy' Price, Terms & Conditions" and indicating that the offer was a "Draft Only, Subject to Confirmation, Verification & Change by both Seller & Buyer." The spreadsheets also stated that "All dates, $ $ and Terms are estimated ONLY to be finalized by both parties!! Subject to change." Lau indicated in an August 22, 2016, e-mail that "[o]nce both parties agree with the price and terms, then I shall put it in an official written Offer format for final review."

      Item 10 read, "On the Real Estate Agreement, if either party breach [sic ] the Sale Agreement, the defaulted party will pay the other party $1,000,000 flat fee as sole remedy regardless of amount of deposit made."

      Kirin filed an amended complaint seeking declaratory relief against Chen after he was allowed to intervene in the matter. The judge dismissed Kirin's action against Chen, and the propriety of that dismissal is not an issue in this appeal.

      Based on this record, both Kirin and Lun Fat expected a formal written offer memorializing the material terms of the sale, as evidenced by Lau's August 22, 2016, e-mail, and Lun Fat's October 24, 2016, letter.

      This principle likewise applies to any oral offer to consummate the sale of the property that may have transpired as a result of the September 18, 2016, face-to-face meeting attended by the parties.


text:
    THIRTY 2 RUTLAND STREET, LLC v. SHU YING CHAN & others.
    17-P-673
    Appeals Court of Massachusetts.
    Entered: April 18, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      May Lin Chan, Shu Hung Chan, Mui Szeto Chan, and Man Ying Chan.

   The defendants Shu Ying Chan, May Lin Chan, Shu Hung Chan, and Man Ying Chan appeal from a summary judgment entered in favor of the plaintiff after cross motions for summary judgment. We affirm.

Background. We set forth the basic undisputed material facts, as recited in the motion judge's memorandum of decision.

The defendants are siblings and own real estate at 18 Winchester Street, Boston, as joint tenants. In 2013, they communicated with each other about selling the property to the plaintiff, Thirty 2 Rutland Street, LLC. The defendants each granted authority to Shu Ying to sign their names on "Offers to Purchase Real Estate" (OTPs) for the property. The grants of authority were made at a meeting where each sibling was present. They were not memorialized in writing.

In July, 2013, the plaintiff executed an OTP to buy the property for $1,600,000 and tendered the document and the deposit to the defendants' real estate agent. That same day, Shu Ying signed the OTP as the seller. He signed only his own name, and did not indicate on the document if he signed only for himself or also as an agent for his siblings. Subsequently, the defendants refused to execute a Standard Form Purchase and Sale Agreement or convey the property to the plaintiff in accordance with the OTP, and this litigation resulted.

The parties filed cross motions for summary judgment. A Superior Court judge granted the plaintiff's motion and denied the defendants' motion, and ordered specific performance of the OTP for the plaintiff. The judge denied the defendants' motion to reconsider, and a final judgment entered following a stipulated dismissal of the remaining claims in the complaint. This appeal followed.

Standard of review. "The judgment sought [by a motion for summary judgment] shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and responses to requests for admission ... together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002). We review the allowance of a motion for 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." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).

Discussion. 1. Specific performance. The Statute of Frauds, G. L. c. 259, § 1, provides that agreements for the sale of land must be "in writing and signed by the party to be charged therewith or by some person thereunto by him lawfully authorized." As the motion judge noted in her thoughtful memorandum, there is no dispute that Shu Ying had the siblings' authority to sell the property. Rather, the defendants contend that parol evidence cannot be used to determine Shu Ying's intention to sign the OTP for both himself and his siblings. We disagree.

In Tzitzon Realty Co. v. Mustonen, 352 Mass. 648, 654 (1967), the Supreme Judicial Court considered whether a wife could be bound by the signature of her husband alone where she did not herself sign the memorandum of the sale of real estate. The Superior Court judge confirmed the report of a master who had found, after an evidentiary hearing, that the husband's signature was "with [the wife's] consent and acquiescence and that it was the intention and design of both that the [husband's] signature represent the signature of both." Ibid. Based on these facts-and despite their proof by parol evidence-the Supreme Judicial Court held that the husband's signature bound the wife to the memorandum in satisfaction of the Statute of Frauds. Ibid. Here, there is no dispute that Shu Ying had the authority and the intention to sell the property on behalf of his siblings when he signed the OTP. Thus, the Statute of Frauds is satisfied as to all of the defendants by parol evidence of his authorization. See Jacobson v. Perman, 238 Mass. 445, 447-448 (1921) (where agent, authorized by seller to make a sale of goods, signed memorandum of sale in agent's name alone, memorandum was sufficient under the statute and bound seller); Larson v. Jeffrey-Nichols Motor Co., 279 Mass. 362, 364-365 (1932) (employment contract signed by manager with authority of president of company can bind company and satisfy statute).

The defendants' reliance on Freeman v. Fishman, 245 Mass. 222, 226-227 (1923) ; Exchange Realty Co. v. Bines, 302 Mass. 93 (1939) (overruled in part on other grounds by Nalbandian v. Hanson Restaurant & Lounge, Inc., 369 Mass. 150, 156-157 [1975] ); and Gordon v. O'Brien, 320 Mass. 739 (1947), is unpersuasive. In Freeman, 245 Mass. at 224-225, a father signed an agreement to sell real estate on behalf of his minor daughter before being appointed her guardian and being granted a license by the probate court to sell the property. This left performance by the daughter in her own volition (as her agreement and acts of her agent were voidable by her during minority), and thus, before the father was appointed guardian, the buyers had the right to back out of the deal. Id. at 227. In our view, the discussion in Freeman-a case decided over forty years before Tzitzon Realty Co., supra-of whether one buyer's signature (Fishman) bound another buyer (Peikes) where Fishman was authorized to sign on behalf of himself and Peikes is dictum. See Freeman, supra at 226-227. Next, Exchange Realty Co. is distinguishable because, there, the parties expressly agreed that the company and not a particular individual party would be the purchaser. 302 Mass. at 98-99. Finally, Gordon, supra, is also inapposite. In that case a lawyer signed his name on behalf of a client on a memorandum of sale of her property at the instruction of the client's husband, but there was a failure of proof that the client had given the lawyer authority to act for her in the matter. Gordon, 320 Mass. at 741-743. While the lawyer might have been authorized to sign the agreement on behalf of the client's husband, he did not so sign. Id. at 743.

Judgment affirmed.

      A fifth defendant, Mui Szeto Chan, did not pursue an appeal.

      We refer to the siblings by first name for clarity.

      In his affidavit, Shu Ying claimed to have signed only his own name "as a result of mistake or inadvertence."

      The issue on appeal relates only to the claim for specific performance, and not to the dismissed claims.

      In the exercise of our discretion, we decline to award the plaintiff the requested attorney's fees and double costs.