text:
    Richard G. BEACH  v. TOWN OF NORFOLK & others.
    16-P-1738
    Appeals Court of Massachusetts.
    Entered: March 29, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      As assignee of Pine Creek Development Corp., John F. Scott, and Robert J. Brown.

      Conservation Commission of Norfolk, Jeffrey Kane, Marie Simpson, Jason R. Talerman, and Graves Engineering, Inc.

   Richard Beach appeals from judgments of the Superior Court; the first is a summary judgment for the town of Norfolk (town) and its conservation commission (commission) on his takings claims, and the second dismissed claims against individual employees and a consultant of the town. We affirm.

The developers sought to develop approximately thirty-eight acres of property in Norfolk. They knew that the extent the locus could be developed was uncertain but expected that even if they could build only one house, they would be able to sell it for a substantial amount. As it turns out, they expended considerable sums in an effort to permit a fifteen-lot subdivision which required a bridge to cross over a stream and replication of disturbed wetlands. The plaintiff contends that delays and unfair and capricious application of the wetlands regulations, as demonstrated by the conditions imposed by the commission in granting an order of conditions for a fourteen-lot subdivision (the 2007 final decision), amounted to an unconstitutional taking of the property. Specifically, the plaintiff claims that in approving the developers' plan, the commission imposed conditions never imposed on other projects, including that (i) construction could not commence until two full growing seasons had elapsed after the completion of required wetland replication, (ii) the commission's consent was required before the 2007 final decision could be assigned to a third-party purchaser; and (iii) no certificate of compliance would be issued for five years after completion of the work. The plaintiff contends that these conditions, along with the commission's multiple delays highlighted by its failure for over a year to authorize its consultant to review revised plans submitted as required by the 2007 final decision, constituted a taking.

The developers commenced an appeal of the conditions imposed in the 2007 final decision but ultimately asked that it be dismissed with prejudice due to financial constraints. Subsequently, the developers brought this action against the town, the commission, individual employees of the town, and the commission's consultant, Graves Engineering, Inc. (Graves). Later, Beach was substituted as the plaintiff. The town successfully moved for summary judgment. The primary focus of this appeal is on the claim that the 2007 final decision and commission's delays amount to a regulatory taking by the commission and the town.

Discussion. A. Failure to exhaust. As an initial matter, we agree with the motion judge that the developers' failure to complete a certiorari appeal of the 2007 final decision does not necessarily preclude him from bringing a takings claim. It is true that "[t]he Supreme Court of the United States has generally denied landowners the right to challenge land use regulations as takings until they have shown that available legal processes, not yet used, will not eliminate the alleged taking." Wilson v. Commonwealth, 413 Mass. 352, 356 (1992). Indeed, if the commission exceeded its authority in imposing the conditions in the 2007 final decision or the commission applied the regulations in what the plaintiff claims is an "unequal, arbitrary and capricious" way, the plaintiff's remedy was to challenge the commission's action through a certiorari appeal. Fieldstone Meadows Dev. Corp. v. Conservation Commn. of Andover, 62 Mass. App. Ct. 265, 267 (2004).

However, we have allowed plaintiffs who accept the validity of wetland regulations as applied to them to proceed with a takings claim without first pursuing an administrative appeal. See Hamilton v. Conservation Commn. of Orleans, 12 Mass. App. Ct. 359, 372-373 (1981) (where plaintiff accepts correctness of department's decision, no need to pursue G. L. c. 30A, § 14, appeal before commencing suit for damages for a taking). The plaintiff acknowledges this in his brief where he cites W.R. Grace & Co.-Conn. v. Cambridge, 56 Mass. App. Ct. 559, 573 n.10 (2002) (W.R. Grace ), and notes that "a regulatory taking claim 'presupposes that the regulation is valid as applied to the locus.' " Ibid. In proceeding with the takings claim, the plaintiff must accept the validity of the 2007 final decision, including the conditions imposed. To the extent the plaintiff relies on the argument that the conditions imposed were arbitrary and capricious, that argument was waived when the plaintiff dismissed that appeal.

B. Summary judgment standard. "When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate shall be entered against him." Mass.R.Civ.P. 56(e), 365 Mass. 824 (1974). "[B]are assertions and conclusions" based on "understandings, beliefs, and assumptions are not enough to withstand a well-pleaded motion for summary judgment." Benson v. Massachusetts Gen. Hosp., 49 Mass. App. Ct. 530, 532 (2000), quoting from Polaroid Corp. v. Rollins Envtl. Servs.(NJ), Inc., 416 Mass. 684, 696 (1993).

The plaintiff suggests that the decision of a judge on an earlier motion to dismiss, ruling in his favor on certain elements of his claim, is "the law of the case." However, not only is a "second judge [ ] not obliged to follow an earlier ruling by another judge," Martin v. Toy, 54 Mass. App. Ct. 642, 644 (2002), but the plaintiff's burden is different on summary judgment than it was on the motion to dismiss. Hiles v. Episcopal Diocese of Mass., 437 Mass. 505, 515-516 (2002). Rather than simply stating a claim, in order to defeat a well-pleaded summary judgment motion, the plaintiff had to demonstrate there was a reasonable expectation that he could prove the essential elements of his claim at trial. Benson, supra at 533.

C. Regulatory taking claim. Accepting the validity of the conditions imposed, we consider whether they amounted to a taking of the property. "When a regulatory taking involves neither a physical invasion nor a complete deprivation of use, as in the case here, Federal law has established several interrelated factors which are to be considered in determining whether a compensable taking has occurred: (1) 'the economic impact of the regulation on the claimant'; (2) 'the extent to which the regulation has interfered with distinct investment-backed expectations'; and (3) 'the character of the governmental action.' " Daddario v. Cape Cod Commn., 425 Mass. 411, 415-416, cert. denied, 522 U.S. 1036 (1997), quoting from Leonard v. Brimfield, 423 Mass. 152, 154, cert. denied, 519 U.S. 1028 (1996). We review each of these factors.

1. Economic impact on the developers. In terms of economic impact, the plaintiff focuses on the $2.9 million he claims reflects the purchase price of the property and the costs expended to develop it. Our takings cases that have considered the economic impact of a wetlands by-law, however, compare the value of the land before and after the order of conditions. See Giovanella v. Conservation Commn. of Ashland, 447 Mass. 720, 734 (2006). "A small economic impact is insufficient to demonstrate a taking; a property owner must show that the economic impact of the governmental regulation was severe." Zanghi v. Board of Appeals of Bedford, 61 Mass. App. Ct. 82, 89 (2004). The Supreme Judicial Court has noted that twenty-nine percent, and even seventy-eight and ninety-two percent, reductions in value have not been enough to sustain a takings claim. Giovanella, 447 Mass. at 734.

Here, the plaintiff simply asserts but does not offer evidence of any diminution in value of the property. The locus when purchased was limited by the presence of wetlands and the developers were aware that the prior owner was unable to obtain permits to develop the property. Development remains limited by the presence of wetlands today. See FIC Homes of Blackstone, Inc. v. Conservation Commn. of Blackstone, 41 Mass. App. Ct. 681, 693-694 (1996) (FIC Homes ). The plaintiff cites to no case where recovery of development costs was allowed under a regulatory takings theory when there has been no showing that the value of the property has been impaired by government action. Moreover, the record demonstrates that at the very least a single-family home can be constructed on the property. "A single family house is a sufficient practical use to prevent the wetland restrictions from constituting a taking." Moskow v. Commissioner of Envtl. Mgmt., 384 Mass. 530, 533 (1981).

In addition, the developers' verified complaint asserts that the market for subdivision lots collapsed during the administrative process rendering it economically unfeasible to pursue the project. Moreover, the record reflects that the developers pursued two other plans and filed two unsuccessful administrative appeals of the commission's denial, presumably at significant expense. We note that "[i]t is not sufficient that there be an economic impact of some kind as a result of the" commission's decision. W.R. Grace, 56 Mass. App. Ct. at 573. "All governmental regulation of business has an economic impact of some kind, and the formulation by the Supreme Court of the 'economic factor' must contemplate more than that.... [F]or there to be a taking, the owner must satisfy the burden of showing that there has been a negative economic impact as a direct consequence of the government's action, rather than as a product of the owner's own activities or decisions." Ibid. In other words, a takings claim is not insurance for economic downturns or business decisions, wise or unwise. Even if it could be said the commission unreasonably delayed review of the revised final plans or that the requirement of the two-season growing period for wetlands replication caused an unreasonable delay in the project, there is no affidavit or other evidence that demonstrates that the delay and the conditions imposed by the commission are what caused the developers to be unable to proceed with the development. Further, the plaintiff has not shown that the commission even was required to act on the revised plans while the developers actively appealed the 2007 final decision. The plaintiff does little more than point to what he alleges are arbitrary and capricious conditions without (i) recognizing that a claim that the conditions are arbitrary and capricious has been waived, (ii) offering evidence connecting the commission's decision and conduct to a reduced value of the property, or (iii) causally connecting the commission's decision and conduct to the developers' inability to proceed with the subdivision. This is not enough to defeat the commission's summary judgment motion.

2. Interference with distinct investment-backed expectations. Wetlands restrictions "may deprive an owner of a beneficial property use-even the most beneficial use-without rendering the regulation an unconstitutional taking." Moskow, 384 Mass. at 533, quoting from Lovequist v. Conservation Commn. of Dennis, 379 Mass. 7, 19 (1979). "What may be characterized as forbidden takings are those governmental actions which strip private property 'of all practical value to them or to anyone acquiring it, leaving them only with the burden of paying taxes on it.' " Lovequist, 379 Mass. at 20, quoting from MacGibbon v. Board of Appeals of Duxbury, 369 Mass. 512, 517 (1976).

The plaintiff argues that the commission violated the developers' reasonable expectations by imposing unexpected and costly burdens. However unexpected, the developers' failure to pursue their appeal of the conditions prevents the plaintiff from arguing that the conditions exceeded the commission's authority or were arbitrary and capricious. In addition, as discussed above, the plaintiff has failed to raise a genuine issue of material fact that the conditions imposed were what interfered with the developers' investment-backed expectations, rather than their business decisions or the unexpected fall in the real estate market. Speculation that there would be a reduction in the pool of prospective purchasers or delayed sales because a certificate of compliance would not issue for five years is unsupported by credible evidence. In addition, the plaintiff's suggestion that the developers' personal expectations are what is important is unavailing as the test is whether the commission interfered with reasonable investment-backed expectations based on existing conditions. See W.R.Grace, 56 Mass. App. Ct. at 573-574.

The plaintiff simply did not raise a genuine issue of material fact as to whether the commission seriously interfered with the developers' investment-backed expectations.

3. Character of the governmental action. Finally, the character of the governmental action did not amount to a physical invasion of the plaintiff's property. FIC Homes, 41 Mass. App. Ct. at 695. "A requirement that a person follow administrative procedures for obtaining a permit is not a taking of property." Wilson, 413 Mass. at 356-357. The delay in reviewing the revised plans required by the 2007 final decision occurred while that decision was being appealed. Moreover, the requirement of the two-season growing period ensures that replicated wetlands are in place before existing wetlands are disturbed. The character of government action is less likely to result in a taking when its objective is preventing harm. Giovanella, 447 Mass. at 735.

We have considered whether the condition making the 2007 final decision personal to the developers and transferable only with the commission's permission somehow constitutes a taking. Even if the plaintiff could show that restricting the transfer of the 2007 final decision in effect restricted the transfer of the property itself, the plaintiff's suggestion that the restriction constitutes a taking is unavailing. In Steinbergh v. Rent Control Bd. of Cambridge, 406 Mass. 147 (1989) (Steinbergh I ), the Supreme Judicial Court held that the city of Cambridge lacked authority to adopt an ordinance which prohibited sales of certain condominium units without the rent control board's approval. In Steinbergh v. Rent Control Bd. of Cambridge, 413 Mass. 736 (1992) (Steinbergh II ), the plaintiffs in Steinbergh I sought damages for a temporary regulatory taking for the time period the unlawful ordinance was in place. The Supreme Judicial Court rejected the takings argument, Steinbergh II, 413 Mass. at 744-747, and the plaintiff here makes no reasoned argument distinguishing the facts before us from Steinbergh II.

Finally, the plaintiff cites Giovanella to suggest that a regulation that unfairly singles out an owner may constitute a taking. To the extent the plaintiff's argument that the developers were treated differently from other applicants is not barred by the failure to complete the certiorari appeal, there was no showing that other applicants were similarly situated. We agree with the judge that, in the absence of evidence regarding other applicants' proposed similar projects, the claim is unavailing. Even where a party offered an affidavit of an expert who reviewed other plans but provided no information as to the specifics of those subdivisions, we held that the appellant failed to show the board acted arbitrarily or abused its discretion by treating substantially similar plans differently. Collings v. Planning Bd. of Stow, 79 Mass. App. Ct. 447, 456 (2011).

Also unavailing is the plaintiff's argument that the commission's actions were taken with the purpose of thwarting the development plans and not with the purpose of advancing the Commonwealth's legitimate wetlands interest and, therefore, the actions constitute a taking. See Gove v. Zoning Bd. of Appeals of Chatham, 444 Mass. 754, 759-760 (2005), quoting from Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 548 (2005) (whether application of a regulation "substantially advances legitimate [S]tate interests" is a due process inquiry, not a takings test, and "has no proper place in our takings jurisprudence"). There is no due process claim before us.

For all of the foregoing reasons and those stated by the motion judge, we conclude that the plaintiff's takings claim properly was denied.

D. Other claims. The claims against Jeffrey Kane, Marie Simpson, and Jason R. Talerman were dismissed for failure to comply with discovery requests. Although the plaintiff argues on appeal that the sanction of dismissal was too harsh, for the reasons stated by the judge, we discern no error. Moreover, where separate and final judgment entered as to Talerman and Kane in June of 2013 and as no appeal was taken within thirty days, the developers waived their right to appeal. See Mass.R.A.P. 4, as amended, 430 Mass. 1603 (1999); Mood v. Kilgore, 384 Mass. 459, 462 (1981) (notice of appeal must be filed within thirty days of the entry of judgment). Although Simpson asks for costs and fees, we do not view the plaintiff's arguments as frivolous.

Finally, on appeal, the plaintiff makes no argument as to Graves, and, therefore, the plaintiff has waived that appeal. Graves has requested an award of the attorney's fees incurred on appeal, as well as costs. We agree that an award of reasonable fees and costs is appropriate. Graves may submit a petition for fees and costs, together with supporting materials, within fourteen days of the date of this decision. The plaintiff shall have fourteen days thereafter to respond. See Fabre v. Walton, 441 Mass. 9, 10-11 (2004).

Judgments affirmed.

      John Scott and Robert Brown, principals of Pine Creek Development Corp. (collectively, "the developers") acquired thirty-four acres of the locus at issue for $225,000 in 2000. Because the locus was land-locked, the developers purchased an abutting parcel for $300,000. Scott was aware that other developers had considered or tried to develop the original parcel, one at substantial expense, but could not get the necessary permits. Richard Beach (the plaintiff) provided one million dollars in capital to fund the purchase and development of the locus. Over several years, the developers executed other loan transactions in addition to the amount owed to Beach. When they defaulted on their loan with the private lender 54 LLC, it foreclosed on the property in approximately 2011. With a debt of approximately $2.9 million dollars, Brown and Scott sought protection in the bankruptcy court. They assigned their rights in this action to the plaintiff by court order dated March 27, 2014.

      The record is not clear whether "two full growing seasons" is two years or a spring and a fall. John Scott's errata sheet states, "I think that it's reasonable to assume that a growing season goes from April 1 through September 30." The commission stated in its discovery responses (where the plaintiff assumed that a growing season was April 1 through October 31) that "two growing seasons is not necessarily equivalent to two years" and could be spring and fall. This was significant because the developers had obtained a special permit from the Norfolk zoning board of appeals to construct a bridge but the permit would lapse if construction did not begin within one year. The special permit provided that the zoning board of appeals had discretion to extend the period of the permit for "good cause."

      Hereafter we refer to the town and commission, collectively, as the commission.

      Indeed, the judge's July, 2015, summary judgment memorandum and order states that the plaintiff does "not challenge the underlying validity of the wetlands regulations or any of the specific conditions in the Final Order, but argue[s] those conditions work a regulatory taking."

      The plaintiff may well be attempting to convert an equal protection argument into a takings claim. "The courts of this Commonwealth and the First Circuit [of the United States Court of Appeals] have emphasized that the denial of a land use permit does not rise to a constitutional violation absent special considerations. 'Liability in the instant type of equal protection case should depend on proof that (1) the person, compared with other similarly situated, was selectively treated; and (2) that such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.' " Daddario v. Cape Cod Commn., 56 Mass. App. Ct. 764, 772-773 (2002), quoting from Rubinovitz v. Rogato, 60 F.3d 906, 909-910 (1st Cir. 1995). "As this court has stated, the 'allegation that others similarly situated obtained permits is not, without more, a denial of equal protection of the laws. Allegations of clear and intentional discrimination are required.' " Daddario, 56 Mass. App. Ct. at 773, quoting from Rosenfeld v. Board of Health of Chilmark, 27 Mass. App. Ct. 621, 628-629 (1989). That others were granted permits without the same conditions, without more, is not enough to support an equal protection claim. Daddario, 56 Mass. App. Ct. at 774.


source: Caselaw Access Project

license: Public Domain

text:
    Johanna LIEF-SOCOLOW & others v. PLYMOUTH ROCK ASSURANCE CORPORATION & others.
    17-P-393
    Appeals Court of Massachusetts.
    Entered: March 28, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      John M. Socolow, individually and as parent and next friend of Jake Socolow, Alison Socolow, and Samuel Socolow.

      Annette Liquori and Nicola Liquori. The Liquoris are not parties to this appeal.

   This case arises from a motor vehicle accident in which the plaintiffs sued defendant Plymouth Rock Assurance Corporation (PRAC) and its insureds, defendants Annette and Nicola Liquori. The parties agreed to arbitrate the tort claims. The arbitration agreement included so-called "high/low" amounts, established interest provisions, and specifically excluded the G. L. c. 93A claims against PRAC. The voluntary arbitration resulted in an award of $905,000, well in excess of the high limit of $250,000 agreed to by the parties. PRAC paid the $250,000 within the required time frame. The plaintiffs then moved to confirm the $905,000 award, which motion was denied. The remaining G. L. c. 93A claim was tried before a judge of the Superior Court, where the plaintiffs again sought to confirm the $905,000 award. The judge found that PRAC had violated G. L. c. 93A and trebled the damages, using the base measure of $250,000 as damages. She also confirmed the previously satisfied $250,000 award. Both parties filed posttrial motions objecting to the judgment, which were denied. This cross appeal followed.

The plaintiffs claim error in the judge's findings as to the measure of damages for the purpose of assessing damages under G. L. c. 93A. PRAC claims that the plaintiffs did not prove that its investigation and settlement offers violated G. L. c. 93A, that they did not prove PRAC wilfully and knowingly violated G. L. c. 93A so as to warrant multiple damages, and that the judge erred in calculating the damages award pursuant to G. L. c. 93A. We reverse.

Background. On August 19, 2009, Johanna Lief-Socolow's (Johanna's) Toyota vehicle was struck by an Acura vehicle operated by the defendant-insured, Annette Liquori. While Johanna did not seek medical treatment at the time, she began to experience headaches, insomnia, and back pain shortly thereafter. The nature of her injuries was not easily diagnosable or apparent. However, over time it became clear that Johanna became increasingly forgetful, disorganized, irritable, and less intelligent than she was prior to the accident. On the eve of the arbitration proceedings, Johanna's medical bills totaled more than $12,000. Prior to the agreement to arbitrate, in June, 2010, PRAC offered $9,000 to settle the claim based on the information it had at the time. John M. Socolow, Johanna's husband and the family's attorney, demanded $250,000 and, subsequently, $300,000, where his demand remained. In October, 2010, PRAC made another offer, this one in the amount of $16,000. Finally, in December, 2010, PRAC offered $35,000 to resolve the claim. Unable to settle the claim, the parties submitted to voluntary arbitration with a low of $35,000 and a high of $250,000, the policy limit. The arbitrator, who by agreement was not aware of the high/low, awarded the plaintiffs $905,000. PRAC then promptly paid $250,000 to the plaintiffs.

Discussion. 1. Confirmation of arbitration award. We review a judge's decision to confirm an arbitration award de novo. Massachusetts Hy. Dept. v. Perini Corp., 79 Mass. App. Ct. 430, 436 (2011). The plaintiffs argue that the judge erred in failing to confirm the full arbitration award of $905,000. PRAC claims that it was error to confirm the arbitration award at all, as it was satisfied in full. We agree with PRAC.

The purpose of confirming an arbitration award is to "enable a plaintiff to collect an unsatisfied award." Murphy v. National Union Fire Ins. Co., 438 Mass. 529, 532 (2003). However, if the award is satisfied, confirmation of the award becomes moot. Id. at 533. A trial court has no jurisdiction to hear an action to confirm an arbitration award if it has been fully satisfied. Diaz v. Cruz, 76 Mass. App. Ct. 773, 774 (2010). Here, PRAC promptly paid the $250,000 after the arbitrator's decision issued. As such, confirmation of the arbitration award was already moot when the judge confirmed the award. Confirmation of the award was error.

2. General Laws c. 93A claim. PRAC claims that it was error for the judge to find that it violated G. L. c. 93A in two respects: (1) that PRAC refused to pay the claim without conducting a reasonable investigation, and (2) that it failed to effectuate a prompt, fair, and equitable settlement when liability became reasonably clear. We agree.

" General Laws c. 93A, § 2(a ), states that '[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are ... unlawful.' " Bobick v. United States Fid. & Guar. Co., 439 Mass. 652, 658 (2003). General Laws c. 176D, § 3, bans "unfair or deceptive acts or practices in the business of insurance," including "[u]nfair claim settlement practices." G. L. c. 176D, § 3, inserted by St. 1972, c. 543. "The former statute incorporates the latter, and [accordingly] an insurer that has violated G. L. c. 176D, [§ 3(9) ], ... by definition, has violated the prohibition in G. L. c. 93A, § 2, against the commission of unfair or deceptive acts or practices." Hopkins v. Liberty Mut. Ins. Co., 434 Mass. 556, 564 (2001). Moreover, "[a]n insurer's duty to settle arises when liability has become reasonably clear." O'Leary-Alison v. Metropolitan Property & Cas. Ins. Co., 52 Mass. App. Ct. 214, 217 (2001) (quotation omitted).

a. Reasonable investigation. Here, the judge found that PRAC did not perform any meaningful prelitigation investigation into Johanna's injuries. We disagree. PRAC was in regular communication with John, who initially was serving as the family attorney. PRAC received from John multiple medical records with conflicting opinions about the existence of Johanna's injuries. Thereafter, PRAC obtained three independent medical examination (IME) reports. It also engaged the services, and relied on the expertise, of a neurologist, who opined that Johanna did not suffer any neurological damage. PRAC could rely on independent medical advice from a neurologist when both the extent of the injuries as well their nexus to the accident are unclear. See id. at 217-218. Indeed, PRAC had reason to be skeptical as to the extent of Johanna's injuries. See Silva v. Norfolk & Dedham Mut. Fire Ins. Co., 91 Mass. App. Ct. 413, 417 (2017). Johanna did not report any injuries at the scene of the accident and did not receive care at the emergency department. Her injuries were also not readily apparent or diagnosable at the initial stages of the investigation. PRAC's decision to hire a neurologist for a medical records review after obtaining three IME reports fulfilled PRAC's investigatory obligation. To find otherwise was error.

PRAC also relied on the experience and opinion of its attorney, with whom PRAC had worked for twenty years. "A plausible, reasoned legal position that may ultimately turn out to be mistaken-or simply ... unsuccessful-is outside the scope of the punitive aspects of the combined application of c. 93A and c. 176D." Guity v. Commerce Ins. Co., 36 Mass. App. Ct. 339, 343 (1994). PRAC's reliance on seasoned counsel was justified and did not constitute an unreasonable investigation.

b. Reasonableness of settlement offers. In a claim for violation of G. L. c. 93A, the standard for assessing PRAC's settlement offer is "whether, in the circumstances, and in light of the complaint's demands, the offer is reasonable." Klairmont v. Gainsboro Restaurant, Inc., 465 Mass. 165, 184 (2013) (citation omitted). The standard is an objective one, and the reasonableness of the offer is determined at the time it is made. Heller v. Silverbranch Constr. Corp., 376 Mass. 621, 628 (1978).

At the time the case went to arbitration, Johanna's medical bills totaled more than $12,000. Thus, based on the information that PRAC had at the time, it was reasonable for it to offer $9,000, then $16,000, and finally $35,000 prior to arbitration. Moreover, the plaintiffs negotiated and accepted the high/low arbitration parameters thereby agreeing to settle the claim for an amount between $35,000, PRAC's highest offer, and $250,000, the insured's policy limits. The difference between the offer made and the amount awarded did not violate G. L. c. 93A where PRAC relied on medical expert opinions that contested damages. See Parker v. D'Avolio, 40 Mass. App. Ct. 394, 401-402 (1996). To find otherwise was error.

The judgment is reversed. A new judgment shall enter in favor of PRAC.

So ordered.

Reversed.

      The plaintiffs appeal from the judgment and the order denying their motion to alter or amend the judgment. PRAC appeals from the judgment and the order denying its motion for new trial and/or for remittitur.

      We use first names as the plaintiffs share a surname.

      Johanna accompanied her friend, who was a passenger, to the emergency department where her friend was treated. However, the plaintiff did not seek treatment herself. Afterward, Johanna, her friend, and their six children took a taxicab to Six Flags and spent the day there.

      The plaintiffs argue that Murphy is inapplicable as the claim there arose from an underinsured motorist where arbitration was mandated, and did not address the so-called "interplay" between G. L. c. 93A and G. L. c. 251. This argument is without merit. Regardless of whether an arbitration is mandated, when an arbitration award is satisfied, confirmation of the award becomes moot. Murphy v. National Union Fire Ins. Co., supra. Moreover, Murphy addressed this interplay as the case resolved whether the plaintiffs there were entitled to a "judgment" confirming their arbitration award for the purpose of doubling or trebling damages under a G. L. c. 93A claim. Id. at 532-533.

      Because we conclude that it was error to find that PRAC violated G. L. c. 93A, we need not reach the measure of damages claims.


text:
    Kelly A. BERARD v. DEPARTMENT OF UNEMPLOYMENT ASSISTANCE & another.
    17-P-398
    Appeals Court of Massachusetts.
    Entered: March 27, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Indigo Salon and Day Spa.

   The plaintiff, Kelly A. Berard, appeals from a District Court judgment affirming a decision of the board of review (board) of the defendant Department of Unemployment Assistance (DUA), which had denied Berard's claim for unemployment benefits. We affirm.

Timeliness of appeal. As a threshold matter, we have some doubt whether this appeal is properly before us. The governing statute provides, "Notice of appeal shall be filed in the office of the clerk of the district court within thirty days after entry of the judgment by the clerk. The completion of such appeal shall be made in accordance with the Massachusetts Rules of Appellate Procedure." G. L. c. 151A, § 42, inserted by St. 1990, c. 154, § 30. Berard did not file her notice of appeal within thirty days of the entry of the District Court judgment. The clerk-magistrate issued a notice stating that "the appeal is late" and that Berard "should file a motion to file a late appeal." Berard filed such a motion. DUA did not oppose it; rather, DUA submitted a letter to the District Court citing Mass.R.A.P. 4(c), as amended, 378 Mass. 928 (1979), and informing the court that the issue before it was "whether [Berard] has made a showing of excusable neglect." The judge found excusable neglect and allowed the motion.

Decisional law suggests that a "statutory appeal period ... cannot be overridden by a contrary rule of court when the manner and time for effective filing of an appeal are delineated in the statute." Friedman v. Board of Registration in Med., 414 Mass. 663, 665 (1993). See Harper v. Division of Water Pollution Control, 412 Mass. 464, 465 (1992). Moreover, such statutory appeal periods have been called "jurisdictional." Friedman, supra at 666. See Morales v. Appeals Ct., 427 Mass. 1009, 1010 (1998) (Appeals Court "had no authority to grant an extension of time for filing" appeal beyond statutory seven-day period required by G. L. c. 261, § 27D ).

Conversely, in a case brought under a prior version of the very statute at issue here, the court noted that "[a]s part of the legislation to harmonize the statute law with the new rules of civil and appellate procedure," the statute was amended in 1973 to add a reference to the Massachusetts Rules of Appellate Procedure. Schulte v. Director of the Div. of Employment Security, 369 Mass. 74, 81 n.5 (1975). While not deciding "just how far the new rules will affect appeals under § 42," the court noted that "the policies of these rules should be taken into account in deciding procedural questions arising under § 42." Ibid.

For the purposes of this appeal, we will assume without deciding that the District Court judge properly took into account the policies of the appellate rules. We are reluctant to dismiss the appeal as untimely where the DUA took the position that an enlargement of time for excusable neglect was permissible; Berard is proceeding pro se and, consequently, this important issue has not been adequately briefed; and, in any event, we affirm the judgment on the merits.

Review of board's decision. Our review of the board's decision is governed by G. L. c. 30A, § 14(7). See G. L. c. 151A, § 42. We must "give due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it." Cape Cod Collaborative v. Director of the Dept. of Unemployment Assistance, 91 Mass. App. Ct. 436, 440 (2017), quoting from G. L. c. 30A, § 14(7), as appearing in St. 1973, c. 1114, § 3. We review to determine whether the board applied appropriate legal principles in making its decision, and we accord deference to the board's factual findings, as "[t]he board alone functions as the finder of the facts." Guarino v. Director of the Div. of Employment Security, 393 Mass. 89, 92 (1984). To be valid, the board's decision must be supported by substantial evidence. See ibid. See also Subcontracting Concepts, Inc. v. Commissioner of the Div. of Unemployment Assistance, 86 Mass. App. Ct. 644, 646 (2014). Substantial evidence is "such evidence as a reasonable mind might accept as adequate to support a conclusion." G. L. c. 30A, § 1(6), inserted by St. 1954, c. 681, § 1.

According to the review examiner's findings, adopted by the board, soon after Berard began her employment on January 22, 2015, she experienced health issues and was permitted to reduce her work schedule from twenty-six to sixteen hours per week. On May 2, 2015, the owner and Berard agreed that Berard would give complimentary fifteen-minute massages to clients. Berard gave two complimentary massages, for which she did not receive any pay. She voiced her discontent to the manager. That same day, the manager asked Berard to return her parking pass and requested that she share it with another employee. Unhappy with this arrangement, Berard stopped using the pass and began paying for her own parking when reporting to work.

Shortly thereafter, the employer began offering massages at a reduced rate, and Berard was paid lower commissions as a result. When Berard came to work on June 4, 2015, the receptionist gave her a note from the manager requesting that Berard give complimentary massages that day. Berard, in turn, gave the employer a written statement expressing her dissatisfaction with her employment conditions. After receiving the manager's note, Berard walked out and sent the owner her resignation by electronic mail (email), asserting, "What you did today is called a 'constructive discharge.' " The employer did not have an opportunity to discuss Berard's concerns with her before she resigned.

The board determined that Berard's complaints about the parking pass did not constitute good cause for quitting. Although the board agreed that "working for free is unreasonable," it further concluded that Berard was ineligible for benefits because she had failed to show that she made a reasonable attempt to preserve her job or that such an attempt would have been futile. We discern no grounds for disturbing the board's decision under G. L. c. 30A, § 14(7).

Under G. L. c. 151A, § 25(e )(1), the claimant bears the burden of proving eligibility for unemployment claims by "proving either that [s]he left [her] employment for good cause attributable to the employing unit, or that [her] reason for leaving was of an urgent, compelling, and necessitous nature that would render [her] departure involuntary." Crane v. Commissioner of the Dept. of Employment & Training, 414 Mass. 658, 660 (1993). Good cause can be shown by "intolerable working conditions," such as exposure to "substandard sanitation, temperature, ventilation, or other like factors which may contribute to the physiological discomfort or demise of exposed employees," but does not include "general and subjective dissatisfaction with working conditions." Sohler v. Director of the Div. of Employment Security, 377 Mass. 785, 789 (1979).

The board's determination that Berard's frustration about parking did not amount to good cause is sound as a matter of law and supported by substantial evidence. The board was justified in determining that her unwillingness to share the parking pass with another employee was not an unbearable working condition but was merely a matter of subjective dissatisfaction.

Even where a claimant has good cause for leaving her job, she must demonstrate a reasonable attempt to preserve her employment before resigning, or that any attempt at preservation would have been futile. See Kowalski v. Director of the Div. of Employment Security, 391 Mass. 1005, 1006 (1984) ; Guarino, 393 Mass. at 93-94. The board's determination in this regard was supported by substantial evidence. Berard resigned before giving the owner an opportunity to respond to her letter of grievances. Moreover, the record included an email that the owner sent to Berard the day after she resigned, which spoke directly to Berard's concerns. The board regarded this email as an indication that if Berard had attempted to address her concerns with the owner before resigning, her attempts would not have been in vain. Based on the foregoing, we are satisfied that the record contains substantial evidence to support the board's conclusions, and that its conclusions are based on sound legal principles.

Judgment affirmed.

      In response to an order of the panel directing the parties to be prepared to discuss the procedural issue at oral argument, DUA took the position that the District Court judge exceeded his authority, marshalling the decisional law discussed above. Berard, for her part, reasonably explained her late filing, which was based in part on her medical condition and in part on alleged (mis)guidance from court personnel.

      Berard also claims harassment and discrimination at her place of employment. We do not consider these claims because, as the board observed, the review examiner did not find them credible.


text:
    COMMONWEALTH v. Edgardo RODRIGUEZ.
    16-P-1702
    Appeals Court of Massachusetts.
    Entered: March 27, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury trial in the District Court, a jury convicted the defendant, Edgardo Rodriguez, of possession of a Class B controlled substance, Suboxone. G. L. c. 94C, § 34. On direct appeal, the defendant argues that he was deprived of his right to confront the witnesses against him in violation of the Sixth Amendment to the United States Constitution because Paul Eyerle, a supervisor in the State Police Crime Laboratory's (crime lab) drug unit, testified regarding drug evidence analyzed by a chemist who no longer worked at the crime lab (original chemist). Specifically, the defendant argues that it was error for Eyerle to mention that he reviewed the original chemist's certificate of analysis as part of his preparation for trial. Because Eyerle testified as to his own opinion about the composition of the substances, the original chemist's certificate of analysis was not introduced in evidence or her opinion stated for the jury, and Eyerle was subject to cross-examination, we conclude that the defendant was not deprived of his right of confrontation.

An expert witness's independent opinion is admissible notwithstanding the expert's reliance on test results obtained by a nontestifying analyst. Commonwealth v. Greineder, 464 Mass. 580, 582, 595-596 (2013). The expert may not testify, on direct examination, as to the "specific information on which he or she relied" in reaching an independent opinion, because such testimony would be hearsay. Id. at 583, citing Commonwealth v. McNickles, 434 Mass. 839, 857 (2001). See Mass. G. Evid. § 705 (2017). Allowing an expert's opinion while holding inadmissible the hearsay basis for that opinion protects a criminal defendant's right of confrontation because "the declarant of the opinion is testifying at trial" and is subject to cross-examination. Greineder, supra at 584, quoting from Commonwealth v. Barbosa, 457 Mass. 773, 783-784 (2010).

We conclude that Eyerle's testimony did not exceed the bounds set by Greineder. On direct examination, Eyerle testified that he reviewed, and approved, the original chemist's work, which included her matrix notes, raw data, and the certificate of analysis, "for administrative and technical accuracy." He did not testify as to what the results of her tests were. He then testified that, in preparation for trial, he reviewed "the matrix notes, certificate analysis and the raw data" and that he "look[ed] at the comparisons that were made by the original analyst and conclusions and then determine[d] whether or not what [his] conclusions would be for the same data." Finally, in response to the prosecutor's question, he stated that in his opinion the substances tested were Suboxone.

We note that although Eyerle testified that he reviewed the original chemist's certificate of analysis, he did not testify as to her conclusions. See Barbosa, supra at 783-784. He also did not testify as to the results of any of the tests performed by the original chemist, id. at 784, nor did he say that his conclusions matched hers. Id. at 786. While it is possible that the jury could have inferred that Eyerle's conclusions matched the original chemist's, such an inference does not render his testimony inadmissible. See id. at 788 (risk that jury may infer facts not in evidence based on expert's opinion not reason to declare opinion inadmissible absent substantial risk of unfair prejudice).

The defendant's argument is not strengthened by Officer Thomas's testimony. The prosecutor asked Thomas what the process was for retrieving evidence from the crime lab. He testified that he would go to the crime lab, give them a form, and receive a package in a sealed bag and a "certificate that's [sic] says exactly what it was." First, we note that he said "certificate" and not "certificate of analysis," which is somewhat ambiguous, because it could mean either a certificate that tells the police what the substance is, or a certificate that tells the police that it is the same evidence that was given to the crime lab. Second, although Thomas was asked about what occurred when he retrieved the evidence in this case, his answer appears to give the general process for retrieving evidence from the crime lab and not what specifically happened in this case. The prosecutor's next question: "And was there a certificate returned with these items when you picked them up from the State Police Crime Lab?" appears to confirm this interpretation. Before Thomas can answer, defense counsel objects, and after a conversation at sidebar the prosecutor rephrases her question. Thus, it does not appear that the jury heard from Thomas that the evidence in this case was received from the crime lab with the original chemist's certificate of analysis telling the police "exactly what it was." While the jury did later hear from Eyerle that there was a certificate of analysis in the file, and may have connected that to Thomas's earlier testimony, that is not what Greineder prohibits.

Assuming arguendo that Eyerle's reference to the original chemist's certificate was error, it was harmless beyond a reasonable doubt. See Commonwealth v. Vasquez, 456 Mass. 350, 352 (2010) (preserved constitutional errors reviewed under "harmless beyond a reasonable doubt" standard). Under that standard, we look to determine whether the other evidence as to the chemical composition of the substances was so "overwhelming" as to "nullify any effect" the reference to the certificate may have had on establishing the element of the crime that the substances were Suboxone. Id. at 363. We first note that prior to his hospital admission the defendant told Officer Thomas that he had ingested Suboxone. After his hospital stay the defendant confirmed this statement in an interview with Officer Hamilton. In addition, Eyerle testified to his expertise in chemical analysis of unknown substances with an emphasis on drug analysis, and the judge qualified him as an expert. Setting aside Eyerle's reference to the certificate, he testified that he reviewed the original chemist's matrix notes and the raw data of the tests she performed and determined what his conclusions would be for the same data. Based on that independent review, he concluded that the substances were Suboxone. Considering the entirety of Eyerle's testimony and the other evidence presented, we are satisfied beyond a reasonable doubt that Eyerle's two brief references to the original chemist's certificate of analysis did not have an effect on the jury and did not contribute to the jury's verdict. See Commonwealth v. Tyree, 455 Mass. 676, 701-702 (2010). Contrast Vasquez, supra at 363-367 (error not harmless beyond reasonable doubt where erroneously admitted drug certificates were sole evidence that seized substance was cocaine).

Judgment affirmed.

      On cross-examination, the expert may be required to disclose the underlying facts or data on which the expert's opinion is based. See Commonwealth v. Nardi, 452 Mass. 379, 387-395 (2008).

      We also note that the judge instructed the jurors on expert witness testimony according to the standard model jury instruction, telling them, "because a particular witness has specialized training and experience in his field does not put that witness on a higher level than any other witness, and ... [y]ou're to treat the so-called expert witness just like you would treat any other witness.... [I]t's completely up to you to decide whether you accept the testimony of the expert witness, including the opinions the witness gave."


text:
    P.B. v. A.B.
    17-P-1168
    Appeals Court of Massachusetts.
    Entered: March 26, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, A.B., appeals from the issuance of a permanent G. L. c. 209A order against him. He argues that (1) the evidence was insufficient to support the issuance of the ex parte 209A order, the one-year extension, or the permanent order; (2) he was unconstitutionally deprived of a hearing; and (3) the judge's denial of his motion for relief from judgment was error. We affirm.

Background. The plaintiff, P.B., is the former wife of the defendant. On December 21, 2015, after learning that the defendant was scheduled to be released from a correctional facility where he had served nearly twenty-three years, the plaintiff filed a complaint seeking an abuse prevention order pursuant to c. 209A (209A order). The plaintiff's affidavit, filed in support of the complaint, described the emotional and physical abuse she had experienced at the hands of the defendant throughout their marriage. In the year prior to her complaint, the plaintiff mysteriously began receiving the defendant's mail at her home even though he never had lived there and had not even had contact with her in over eighteen years. In addition, the plaintiff received a sympathy card from the defendant after her then-husband passed away, although his death had not yet been reported publicly. The card was inscribed by the defendant with the following: "I'm thinking of you today and every day, today and always." The plaintiff interpreted this to mean that "he was still thinking about [her] and not in a good way." Finally, the plaintiff stated that these actions caused her to fear for her life. The plaintiff reiterated her concerns and affirmed the contents of her affidavit, under oath at the ex parte hearing. The defendant was served in hand with the ex parte order. The defendant sent a letter to the judge in which he acknowledged receipt of the ex parte order. He wrote, "my intention in writing to the court isn't so much as to object ... as it is to enlighten the court on some issues it should be aware of." The defendant then did not appear for the extension hearing on December 31, 2015, which was before a second judge. At that hearing, the plaintiff testified, albeit briefly. The order was extended for one year, until December 30, 2016. On December 12, 2016, the defendant filed a motion to terminate the 209A order, which was heard by the second judge at the same time as the further extension hearing on December 30, 2016. Both parties were present. The defendant's motion was denied and the permanent order entered.

The defendant then filed his first and only notice of appeal, which was docketed on January 25, 2017. On February 15, 2017, the defendant filed a motion for relief from judgment and for recusal of the second judge. The motion for relief from judgment was denied; no action was taken on the motion for recusal.

Discussion. 1. Sufficiency of evidence for the 209A orders. The defendant claims that the evidence presented at the hearings was insufficient to support issuance of the 209A orders. We first note that because the defendant failed to file a timely notice of appeal from the ex parte 209A order or from the initial one-year 209A order, the challenges to those orders are waived. See Wotan v. Kegan, 428 Mass. 1003, 1003 n.2 (1998) ("[T]he appropriate avenue for review of c. 209A orders now is the filing of an appeal in the Appeals Court"). "A defendant's motion to terminate an order is not a motion to reconsider the entry of a final order, and does not provide an opportunity for a defendant to challenge the underlying basis for the order or to obtain relief from errors correctable on appeal." MacDonald v. Caruso, 467 Mass. 382, 388 (2014).

Notwithstanding, the plaintiff's affidavit and subsequent testimony at both the ex parte and initial hearing after notice were sufficient to justify the entry of and the one-year extension of the 209A order. See Iamele v. Asselin, 444 Mass. 734, 736-741 (2005). See also Frizado v. Frizado, 420 Mass. 592, 596 (1995). Contrast Banna v. Banna, 78 Mass. App. Ct. 34, 36 (2010) (evidence insufficient to extend 209A order where judge only asked plaintiff if she wanted order extended). Moreover, turning to the only order properly before us, when the most recent actions of the defendant are viewed in light of the evidence of the decades-long physical and emotional abuse that the plaintiff endured prior to the defendant's incarceration, the permanent 209A order was properly entered as well.

2. Right to be heard. The defendant next argues that he was unconstitutionally deprived of a hearing before the one-year 209A order was issued. This claim too suffers from the same procedural defect as the sufficiency claim. Notwithstanding, a 209A order "must provide the defendant with reasonable notice and an opportunity to be heard." Caplan v. Donovan, 450 Mass. 463, 470 (2008). The defendant did not make any arrangement to be brought into court or to seek a continuance while he was incarcerated. He did, however, send a letter to the court, which the judge ordered to be filed. The judge was entitled to discredit the defendant's letter and to credit the plaintiff's affidavit and testimony. See Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 148 (2006). After his release from prison, the defendant filed a motion to terminate and appeared at the hearing on both that motion and the plaintiff's further extension request. When given the opportunity to cross-examine the plaintiff, the defendant chose not to. The defendant then testified on his own behalf. He told the judge that he "certainly had an opportunity to defend [him]self at this hearing." At the conclusion of the hearing, the judge asked the defendant, "what's your response to a lifetime restraining order, please?" The judge then stated, "Having heard no response, the date will be lifetime." The defendant was not deprived of a hearing.

3. Denial of motion for relief from judgment. The defendant argues that the denial of his motion for relief from judgment filed pursuant to Mass.R.Civ.P. 60(b)(3), 365 Mass. 828 (1974), was error. As the defendant's notice of appeal preceded the denial of that motion, and no further notice of appeal was filed, this issue is not properly before us. See Mass.R.A.P. 4(a), as amended, 464 Mass. 1601 (2013) ("A notice of appeal filed before the disposition of any of the above motions [including under rule 60 ] shall have no effect"); Eyster v. Pechenik, 71 Mass. App. Ct. 773, 779 (2008).

Abuse prevention order entered December 30, 2016, affirmed.

      The plaintiff was not the victim in the case for which the defendant was incarcerated. The plaintiff did, however, testify at his trial. At that trial, she testified in a way that is best described as not helpful to him. Thereafter, the defendant and members of his family threatened the plaintiff, causing her to fear for her life.

      At this hearing, the judge used inappropriate language to describe the defendant. While this language gives us pause, it does not affect the outcome of this appeal.

      We find no merit in the defendant's claim that the plaintiff could not currently be in fear of him because she brought their son to visit with him during the early years of his incarceration.

      We discern no merit in the defendant's argument that "he was deprived of a full and a fair opportunity to be heard and to present evidence [at the further extension hearing] because [it was held] before [the second judge,] who had previously demonstrated bias and prejudicial preconceived notions against the defendant."


text:
    Richard D. BOSTWICK v. SANTANDER BANK, N.A., & others.
    17-P-291
    Appeals Court of Massachusetts.
    Entered: March 26, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Federal National Mortgage Association, Orlans Moran PLLC, and Saturn Realty Group, LLC.

   The pro se plaintiff brought this action to try title and for trespass, alleging that Santander Bank, N.A. (Santander), lacked authority to foreclose on the subject property because it did not own the mortgage on the property and could not produce the original note. On the defendants' motion, a Land Court judge dismissed the complaint for several reasons, including that (1) the try title claim was barred under Mass.R.Civ.P. 12(b)(9), as amended, 450 Mass. 1403 (2008), because the plaintiff had raised the same underlying allegations in a prior action still pending in Superior Court, and (2) the plaintiff failed to state a claim for trespass because he could not show that the defendants' entry on the property was unlawful without first showing that Santander lacked authority to foreclose, a question that had to be resolved in the prior pending action. As we agree with these rulings, we affirm.

Background. We recite so much of the procedural history as is necessary to frame the issues on appeal. In January of 2003, the plaintiff granted a mortgage to Sovereign Bank (Sovereign). When the plaintiff defaulted on the mortgage several years later, Sovereign filed a Servicemembers Civil Relief Act (SCRA) complaint in the Land Court. In May of 2009, the plaintiff filed a responsive complaint in the Superior Court (2009 action), raising a myriad of allegations, including that Sovereign had no authority to foreclose because it had assigned the mortgage to the Federal National Mortgage Association (Fannie Mae) in February of 2003. In October of 2012, a judge granted summary judgment in favor of Sovereign and Fannie Mae. Regarding Sovereign's authority to foreclose, the judge found in effect that the issue was not ripe because "there ha[d] been no foreclosure." In an unpublished memorandum and order, a panel of this court affirmed on the ground that "there ha[d] been no foreclosure, only Sovereign Bank's filing of a Land Court action pursuant to the [SCRA]." Bostwick v. Sovereign Bank, 85 Mass. App. Ct. 1101 (2014).

In August of 2015, Sovereign, now known as Santander, filed another SCRA action in the Land Court. The next month, the plaintiff brought a second responsive suit in Superior Court (2015 action), again asserting a myriad of claims against numerous defendants, including Santander, Fannie Mae, and Orlans Moran PLLC. Included in the complaint were allegations that Santander lacked authority to foreclose because it had assigned the mortgage to Fannie Mae and could not produce the original note.

Santander and Fannie Mae moved to dismiss the claims against them on the ground of res judicata. In the motion Santander and Fannie Mae asserted that the issue whether "the [d]efendants lack the authority to foreclose on the [p]roperty" was "considered in [the 2009 action] and expressly rejected by the [c]ourts." In April of 2016, a judge (different from the one who ruled in the 2009 action) allowed the motion, concluding that "the merits of [the plaintiff's] claims" had been resolved in the 2009 action.

Days later, Orlans Moran PLLC conducted the foreclosure sale on behalf of Santander. The plaintiff then filed this suit in June of 2016. After the Land Court judge issued his ruling on September 22, 2016, the plaintiff returned to the Superior Court and moved to vacate the dismissal in the 2015 action, which was still pending because there were unresolved claims against other defendants. He also sought to amend his complaint to add allegations relating to the foreclosure sale and to add Saturn Realty Group, LLC (Saturn), the highest bidder at the sale, as a defendant. A judge denied the motion without comment.

Discussion. We review de novo a judge's ruling on a motion to dismiss under Mass.R.Civ.P. 12(b)(9). See Okoli v. Okoli, 81 Mass. App. Ct. 381, 384 (2012). " Rule 12(b)(9) provides for the dismissal of a second action in which the parties and the issues are the same as those in a prior action still pending in a court of this Commonwealth. The rule prohibits the long-barred practice of claim-splitting." Lyons v. Duncan, 81 Mass. App. Ct. 766, 770-771 (2012), quoting from M.J. Flaherty Co. v. United States Fid. & Guar. Co., 61 Mass. App. Ct. 337, 339 (2004). Here, the relevant parties are the same as those in the 2015 action. And regarding identity of the issues, we agree with the Land Court judge's assessment that the 2015 action, "at its core, sought the prevention and prospective invalidation of the then pending mortgage foreclosure based on the purported assignment in 2003 of the mortgage to Fannie Mae by Sovereign .... This is the same basis for [the] plaintiff's claim in this [action] that the foreclosure brought about by the April, 2016 sale is invalid."

The plaintiff suggests that identity of issues is lacking because his claims were not resolved on the merits in either the 2009 or 2015 action. While that is true, the fact remains that the issue of Santander's authority to foreclose was raised and litigated in the 2015 action, which was still pending when the Land Court judge issued his decision. If the plaintiff believes that the judge in the 2015 action erred in applying res judicata, his remedy is to appeal from the final judgment when it enters. What matters for our purposes is that the same issue between the same parties was raised in a prior action that was pending when judgment entered in this case. Dismissal of the try title claim was thus proper under rule 12(b)(9).

With regard to the trespass claim, the plaintiff acknowledges that its success depends on a finding that the underlying foreclosure was wrongful. Because that issue cannot be resolved in this proceeding, dismissal under rule 12(b)(6) was appropriate.

Judgment affirmed.

      Sovereign later changed its name to Santander.

      Separate and final judgment initially entered for Santander, Fannie Mae, and Orlans Moran PLLC on September 27, 2016. When the plaintiff tried to appeal, however, a single justice of this court determined that the appeal was premature because the "Superior Court proceedings are ongoing." The single justice thus ordered that the appeal be vacated, "notwithstanding the entry of separate and final judgment[ ]," and "may be re-entered upon the conclusion of all proceedings in the ... Superior Court."

      Although Saturn is not a defendant in the 2015 action, we view that to be inconsequential for purposes of rule 12(b)(9) because the plaintiff's claims against Saturn are inextricably intertwined with, and dependent on, his claims challenging Santander's authority to foreclose. Cf. M.J. Flaherty Co., 61 Mass. App. Ct. at 339 (dismissal not mandated under rule 12 [b][9] where "issue in the second case [was] not who must prevail on the [issue in the first case] as a matter of law and fact"). Alternatively, if the claims against the other defendants are barred under rule 12(b)(9), the claims against Saturn would be subject to dismissal under rule 12(b)(6).

      We note that, contrary to Santander's and Fannie Mae's representations to the judge in the 2015 action, the plaintiff's claim in the 2009 action was dismissed because it was not ripe; it was not adjudicated on the merits. Nonetheless, whether the judgment in the 2009 action operates as res judicata is an issue that is not properly before us in the current appeal.

      To the extent we have not addressed the plaintiff's other arguments, they "have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).


text:
    ADOPTION OF KAYA (and a Companion Case ).
    17-P-1097
    Appeals Court of Massachusetts.
    Entered: April 2, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Adoption of James. The children's names are pseudonyms.

   The mother and father appeal from decrees terminating their parental rights as to two of their children, Kaya and James. Both parents argue that the evidence did not clearly and convincingly establish their parental unfitness. The mother additionally argues that certain of the judge's subsidiary findings of fact are clearly erroneous and that the judge impermissibly put the burden on her to prove that she is fit. We affirm.

The mother's appeal. 1. Parental unfitness. A judge may terminate parental rights only where there is clear and convincing evidence that the parent is currently unfit to provide for the welfare and best interests of her children. See Adoption of Kimberly, 414 Mass. 526, 528-529 (1993). "Parental unfitness must be determined by taking into consideration a parent's character, temperament, conduct, and capacity to provide for the child in the same context with the child's particular needs, affections, and age." Adoption of Mary, 414 Mass. 705, 711 (1993). In deciding whether a parent is currently unfit, the judge can "rely upon prior patterns of ongoing, repeated, serious parental neglect, abuse, and misconduct." Adoption of Kimberly, 414 Mass. at 529, quoting from Adoption of Diane, 400 Mass. 196, 204 (1987).

Here, the judge's findings detail the mother's lengthy history of neglecting her children-she has nine total-stemming from a variety of factors, including domestic violence, substance abuse, untreated mental health issues, housing instability, and criminal behavior resulting in incarceration. This pattern of neglect dates to 1993 and resulted in the removal of the mother's seven other children. Although the mother is correct that a finding of current unfitness cannot be based on stale information, the judge properly considered this history for its prognostic value. See Adoption of Carla, 416 Mass. 510, 517 (1993).

Added to this prognostic evidence was evidence demonstrating the mother's current inability to parent Kaya and James. The mother did not receive adequate prenatal care for either Kaya or James, the latter of whom was born prematurely. In September of 2011, while the mother was pregnant with James, she was involved in a serious domestic violence incident with the father, who reported to the police that the mother pulled a knife on him. The mother was arrested, found guilty of assault by means of a dangerous weapon, and given a six-month suspended sentence. Even after this incident, the mother continued to advocate for remaining in contact with the father.

Although the mother was found unfit to parent Kaya after the first trial, she was given another opportunity to regain custody of the children. In August of 2013, DCF increased the frequency of her visits with the children with the aim of reunification. But while the mother's attendance was initially consistent, by April of 2014, she began missing multiple visits. It is uncontested that the mother missed approximately forty percent of the visits scheduled in 2014, causing DCF to reduce them to a monthly basis. The mother missed many visits for unexplained reasons or because she did not call DCF in time to confirm. She also cancelled numerous home visits, failed to attend early intervention sessions for James, and failed to attend James's medical and dental appointments despite DCF's request that she do so. In addition, the mother failed to appear for two days of the second trial, which led the judge to draw a negative inference against her.

The record also supports the judge's determination that the mother did not meaningfully participate in or benefit from services since she was found unfit after the first trial. Just a few months later, in December of 2013, the mother failed a drug test, testing positive for marijuana. She did not receive counselling or therapy on a consistent basis and was terminated from two programs in late 2013 and in 2014 for noncompliance. She failed to complete a domestic violence program and was involved in another domestic violence incident in January of 2014. At the time of trial, she was homeless and had no viable plan for obtaining housing that would be suitable for the children. She also failed to appreciate the impact of her smoking around the children, both of whom suffer from asthma, which had been a recurring issue throughout the proceedings. Although DCF repeatedly advised the mother that her smoking could trigger James's asthma, the foster parents reported that the children would return from visits smelling like smoke. The judge cited this as an example of how the mother continued to place her needs above those of her children.

We reject the mother's claim that the judge failed to give sufficient weight to the evidence in her favor. The judge did take that evidence into account, finding for example that the mother participated in some services, that she was appropriate during visits, and that she was no longer in a relationship with the father. Nonetheless, the judge found that the mother had not "benefitted from the services that she actually utilized, including [gaining] any knowledge or insight about domestic violence or the impact her behavior has on her children" and had not made any "significant progress towards changing a pattern of behavior that endangers the welfare of [the] children." We discern no error in this determination or in the judge's ultimate conclusion that the evidence clearly and convincingly demonstrates that the mother is currently unfit to parent Kaya and James. See Adoption of Lorna, 46 Mass. App. Ct. 134, 143 (1999) ("The judge was not obliged to believe that the parenting skills of the mother ... had improved simply because of [her] recent cooperation with the department, or that [her] good intentions eliminated risk of future abuse").

2. Contested subsidiary findings. The judge's subsidiary findings "must be left undisturbed absent a showing that they are clearly erroneous." Custody of Eleanor, 414 Mass. 795, 799 (1993). "A finding is clearly erroneous when there is no evidence to support it, or when, 'although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.' " Ibid., quoting from Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 160 (1977).

The mother has not shown any reversible error in the judge's subsidiary findings. The evidence supports the judge's findings that the mother did not visit with the children consistently, that her housing situation was unsuitable for the children, that her mental health issues were "largely untreated," and that she did not complete a domestic violence program. Regarding the finding that the children are bonded to their foster parents, the "judge could permissibly infer that some bonding had occurred" in light of the fact that the children had lived with the foster parents for approximately three years by the time of trial. Adoption of Daniel, 58 Mass. App. Ct. 195, 203 (2003). Because bonding was not a decisive factor in the unfitness inquiry, expert testimony and more detailed findings were not required. See ibid.

The mother also challenges several findings relating to her inability to understand or meet the children's needs. These arguments invite us to reweigh the evidence and substitute our own findings for those of the judge, which we cannot do. See Adoption of Quentin, 424 Mass. 882, 886 (1997). Although there may be minor errors in some of the findings, we view them as inconsequential to the judge's ultimate determination of unfitness. See Care & Protection of Olga, 57 Mass. App. Ct. 821, 825 (2003).

We likewise reject the mother's argument that the judge erred in finding her unfit because the evidence did not establish a nexus between her mental health issues and her parental shortcomings. The judge's determination was not based on the mother's mental health issues alone. Cf. Care & Protection of Bruce, 44 Mass. App. Ct. 758, 763 (1998). Regardless whether mental illness was the precise cause of the mother's parenting deficiencies, the evidence clearly and convincingly established her unfitness.

3. Shifting of burden of proof. Finally, the mother contends that the judge impermissibly shifted the burden to her to prove that she is fit. In support, the mother takes pieces of the judge's decision out of context and asks us to view them in isolation. We decline to do so. The judge properly recited DCF's burden of proving parental unfitness by clear and convincing evidence and ultimately concluded that DCF sustained its burden. There was no error.

The father's appeal. The father does not challenge any of the judge's subsidiary findings but argues that the findings taken together do not clearly and convincingly establish that he is unfit. We disagree. The findings detail the father's extensive criminal record and history of domestic violence, resulting in the issuance of multiple restraining orders against him. He also has significant mental health issues, for which he does not take medication. He did not engage in services, cooperate with DCF, or visit the children, and his whereabouts were unknown for extended periods of time. He lacks suitable housing or a future plan to take care of the children. These findings amply support the judge's determination that the father is currently unfit to parent Kaya and James.

Decrees affirmed.

      The Department of Children and Families (DCF) filed separate care and protection petitions regarding each child. In August of 2012, trial started on the petition as to Kaya only; paternity was not established at that time. In August of 2013, the judge found the mother unfit to parent Kaya but did not order the termination of the mother's rights. The petitions were later consolidated, and, in March of 2015, the consolidated cases proceeded to trial before the same judge, after which the mother's and father's parental rights were terminated as to both children.

      Five of the children were adopted, and one lived with her father until she reached adulthood. The seventh child-who is the eldest of the three children the mother and father had together-is in a guardianship with her paternal grandmother.

      The man involved in this incident was in a relationship with the mother from April of 2011 to at least January of 2013. According to the mother's report to the police, the man grabbed her neck and tried to choke her. Although the mother claims that the judge should not have weighed this evidence against her because she was the victim in the assault, the judge properly viewed the incident-immediately prior to which the mother consumed alcohol to excess, causing her to lose her memory-as indicative of her "inability to make responsible choices."

      The mother raises no independent challenge to the termination of her parental rights. In any event the judge did not abuse her discretion in finding that the mother's unfitness was not temporary and that terminating her parental rights would be in the children's best interests. See Adoption of Elena, 446 Mass. 24, 30 (2006) ("When reviewing a decision to terminate parental rights, we must determine whether the trial judge abused [her] discretion or committed a clear error of law").

      At oral argument the mother claimed that the judge erred in finding that her counselling sessions with Martha Scott were terminated due to the mother's lack of attendance. This finding appears to be clearly erroneous, as a DCF social worker testified that the sessions were discontinued for reasons not attributable to the mother. Even without this finding, however, there is still adequate support for the judge's conclusion that the mother's mental health issues were largely untreated. See Care & Protection of Olga, 57 Mass. App. Ct. 821, 825 (2003) (discounting minor factual errors "not central to the ultimate conclusion of unfitness").

      Although there may be conflicting testimony on this last point, it was for the judge to resolve any factual discrepancies. See Adoption of Peggy, 436 Mass. 690, 702 (2001), cert. denied sub nom. S.J. v. Department of Soc. Servs., 537 U.S. 1020 (2002).

      The judge did not credit the father's claim that he tried to schedule visits with James but the DCF social worker failed to contact him.

      The father does not separately challenge the termination of his parental rights, but, in any event, we discern no abuse of discretion by the judge in that respect. See Adoption of Elena, 446 Mass. at 30.


text:
    COMMONWEALTH v. Johan BURGOS.
    17-P-139
    Appeals Court of Massachusetts.
    Entered: March 30, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Johan Burgos, appeals from his convictions of armed robbery, see G. L. c. 265, § 17, and assault and battery by means of a dangerous weapon, see G. L. c. 265, § 15A. We affirm, addressing the defendant's various claims of error in turn.

1. Prior bad acts. The defendant contends that the trial judge erred in admitting evidence of the defendant's prior bad acts: specifically, the defendant's proximity to a handgun two weeks after the incident. "Evidence showing a defendant's access to firearms may be 'admissible for purposes other than showing a defendant's bad character or criminal propensity.' " Commonwealth v. Bonnett, 472 Mass. 827, 841 (2015), quoting from Commonwealth v. McGee, 467 Mass. 141, 157 (2014). One such purpose is to show that the defendant had the means to commit the crime of which he is accused. See Commonwealth v. Toro, 395 Mass. 354, 356-357 (1985). Proffered evidence of a "weapon that could have been used in the course of a crime is admissible ... even without direct proof that the particular weapon was in fact used in the commission of the crime." Commonwealth v. Barbosa, 463 Mass. 116, 122 (2012). Whether such "evidence is relevant and whether its probative value is substantially outweighed by its prejudicial effect are matters entrusted to the trial judge's broad discretion and are not disturbed absent palpable error." Commonwealth v. Sylvia, 456 Mass. 182, 192 (2010), quoting from Commonwealth v. Simpson, 434 Mass. 570, 578-579 (2001).

We discern no abuse of discretion by the motion judge in his assessment that the probative value of evidence that, on July 18, 2014, thirteen days after the armed robbery, the defendant was observed in a vehicle that was disabled by a collision, with a black handgun on the ground in close proximity just outside the vehicle, outweighed any improper prejudicial effect on the defendant. The evidence was admissible to show that on the date of the charged offense, the defendant had access to a black handgun consistent with the weapon used in the armed robbery. The defendant need not have possessed the gun at the time he was observed in close proximity to it in order for him to have had access to it on the date of the armed robbery. See McGee, supra at 157. Nothing in the description of the circumstances in which the defendant was observed in close proximity to the handgun suggested that he was then engaged in criminal activity or other bad acts. The judge specifically instructed the jury that the defendant did not possess the firearm on July 18, 2014, and they could only consider such evidence to determine whether the defendant had access to a firearm, not as evidence of another criminal offense or bad act. This instruction eliminated the possibility that the jurors would consider the testimony as evidence of possession or other criminal activity.

2. Admission of photograph of defendant. The judge likewise acted within his discretion in admitting a photograph of the defendant taken on July 18, 2014, to show what the defendant looked like close in time to the armed robbery. The judge provided a contemporaneous limiting instruction to the jury that the defendant did nothing wrong on the day the photograph was taken, thereby avoiding any concern that the jury might infer that the photograph was taken incident to wrongdoing by the defendant.

3. Photographic array (array) identification. The defendant also claims that his motion to suppress the identification should have been allowed, because the array shown to the victim was impermissibly suggestive. When evaluating the denial of a motion to suppress on appeal, we accept the motion judge's factual findings unless they are clearly erroneous, but independently determine "the correctness of the judge's application of constitutional principles to the facts as found." Commonwealth v. Bostock, 450 Mass. 616, 619 (2008), quoting from Commonwealth v. Mercado, 422 Mass. 367, 369 (1996). We discern no error in the motion judge's reasoning that the identification of the defendant in the array identification procedure was admissible.

In order to succeed on a motion to suppress a photographic identification, "the defendant must show by a preponderance of the evidence that, in light of the totality of the circumstances, the procedures employed were so unnecessarily suggestive and conducive to irreparable misidentification as to deny the defendant due process of law." Commonwealth v. Miles, 420 Mass. 67, 77 (1995). "There necessarily will be differences in any photographic array, or indeed any lineup. There is no requirement that the defendant's image or person be surrounded by people nearly identical in appearance to his own." Commonwealth v. Montez, 450 Mass. 736, 757 (2008).

The array and the identification procedure utilized in the present case were not unnecessarily suggestive. The detective testified that he assembled the array using an in-house database into which he input information using the victim's description of the assailant and included the defendant's photograph based on knowledge he obtained from inter-departmental bulletins. The array contained a series of eight sequential photographs rather than a simultaneous display of photographs. The motion judge found that the photographs did not show much in the way of gradations in complexion. The procedure was double blind, conducted by a different detective who was uninvolved in the investigation. The identification was carried out after the detective read the full instructions to the victim, which the victim stated he understood. Though the victim wrote in Spanish on the array instructions, there was no indication that he did not comprehend the instructions given in English. The victim then went through all of the photographs and picked out the defendant's photograph, stating he was "very sure" that it was the assailant.

Judgments affirmed.

      That the identification from the array was not recorded did not render the identification inadmissible. See Commonwealth v. Silva-Santiago, 453 Mass. 782, 799 (2009).


text:
    92 MONTVALE, LLC v. ZONING BOARD OF APPEALS OF STONEHAM & another.
    16-P-1373
    Appeals Court of Massachusetts.
    Entered: March 30, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Town of Stoneham.

   The plaintiff, 92 Montvale, LLC (Montvale), appeals from the entry of summary judgment by a judge of the Land Court that affirmed a decision of the zoning board of appeals of Stoneham (board). The board had upheld the denial of Montvale's application for a building permit to construct a light emitting diode (LED) monument sign (the LED sign) on its property. At issue is whether the LED sign, which has the ability to display images or messages at eight to ten second intervals, is an on-premises flashing sign that is prohibited under the town's zoning by-law. The judge concluded that the LED sign is a prohibited flashing sign and that the board did not act arbitrarily or capriciously by affirming the denial of Montvale's application for a building permit. We affirm.

Background. The following undisputed facts are taken from the summary judgment record. Montvale owns a multitenant commercial building located in the town's commercial I zoning district. On June 17, 2014, Montvale submitted an application for a building permit to construct a two-sided monument sign containing a LED panel, which would replace an existing monument sign in the same location. The LED sign is an on-premises sign, which is defined in the by-law as "[a] sign that pertains to the uses of the premises on which it is located and maintained." By-law § 6.7.4.26. The messages on the LED sign are programmed to change at intervals of once every eight or ten seconds to display the names and logos of Montvale's tenants. The town building inspector denied Montvale's application on the grounds that (1) "[e]ach time the sign changes falls under the category of a flashing sign," which is prohibited under the by-law, and (2) "[t]hese signs also have the ability to have animation and scrolling messages which also are prohibited."

Montvale appealed the building inspector's decision to the board, challenging the building inspector's characterization of the LED sign as either flashing (and therefore prohibited) or capable of displaying animated or scrolling images (also prohibited). Pointing to the definitions of flashing signs propounded by the National Highway Traffic Safety Administration and the United States Coast Guard, which define flashing signs as signs which flash more frequently than every eight seconds, Montvale claimed that the LED sign is not a flashing sign. Montvale further asserted that the LED sign is not "animated" because there is no video, movement, or scene depiction.

After a public hearing on August 21, 2014, the board voted to affirm the building inspector's decision. Montvale filed a petition to reconsider, which was denied. In a written decision dated December 11, 2014, the board explained its reasoning as follows:

"Though helpful, the highway traffic safety administration and the coast guard definitions of signs which flash, are not dispositive here. Both marine traffic and highway traffic differ dramatically from motor vehicle traffic in a community like Stoneham. Accordingly, what constitutes a flashing sign in Stoneham must be interpreted within the limited context of Stoneham. Here, there is no dispute that the sign is illuminated. There is no dispute that the sign changes every eight seconds, thus changing the character of the light emanating from the sign."

Montvale appealed the board's decision pursuant to G. L. c. 40A, § 17. On cross motions for summary judgment, the judge upheld the board's decision. On appeal, Montvale makes essentially the same arguments that it raised in the Land Court. First, Montvale claims that the LED sign is not a "flashing" sign within the meaning of the by-law because the question whether a sign is flashing under the by-law depends upon the duration of each message and not on the mere fact that the message changes. Montvale does not dispute that the LED sign has "intermittent" digital changes, but it argues that the LED sign does not "flash" because those changes occur only every eight seconds. Second, Montvale argues that the board's inconsistent application and interpretation of the by-law violates its right to due process.

Discussion. We review the Land Court judge's summary judgment decision de novo, Deadrick v. Zoning Bd. of Appeals ofChatham, 85 Mass. App. Ct. 539, 543-544 (2014), but we remain "highly deferential" to a board's interpretation of its own ordinances. Grady v. Zoning Bd. of Appeals of Peabody, 465 Mass. 725, 729 (2013) (quotation omitted).

1. The board's finding that the LED sign is a flashing sign. "When interpreting bylaws, we resort to familiar rules of statutory construction." Plainville Asphalt Corp. v. Plainville, 83 Mass. App. Ct. 710, 712 (2013). "We first look to the language of the bylaw and, where that language is plain and unambiguous, we enforce the bylaw according to its plain wording." Id. at 712-713. The by-law defines a flashing sign as one "that contains an intermittent or sequential flashing light source." "Intermittent" is not defined in the by-law, but the judge noted that it is defined in the American Heritage Dictionary (5th ed.) as "stopping or starting at intervals."

There is no dispute that the LED sign has intermittent digital changes. While Montvale argues that the length of the intermittent change is critical, the board rejected Montvale's interpretation of flashing as depending on the duration of the intermittent light source. Instead, the board concluded that a change in message every eight seconds is actually a change from one lighted image of a name or logo to another, and, therefore, the LED sign is consistent with the ordinary meaning of an "intermittent" (flashing) light source. In other words, because the message on the LED sign changes every eight seconds, the sign's lighting is necessarily intermittent. The board also noted that the only signs that are allowed under the by-law to have changeable messages are billboards and off-premises signs. See by-law § 6.7.8.2(6)(iii) (prohibiting off-premises and billboard changeable message signs that change at intervals of more than once every eight seconds).

The board was entitled to reject Montvale's proposed alternate definitions of "flashing." See Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349, 356 n.11 (2001), quoting from Conservation Commn. of Falmouth v. Pacheco, 49 Mass. App. Ct. 737, 740 n.3 (2000) ("[I]f [an] agency has, in the discretionary exercise of its expertise, made a choice between two fairly conflicting views, and its selection reflects reasonable evidence, [a] court may not displace the agency's choice"). Because the board reasonably could conclude that the LED sign is a flashing one under the by-law's definition of flashing, its determination that the building inspector correctly denied Montvale a building permit is entitled to deference. See Pelullo v. Croft, 86 Mass. App. Ct. 908, 909 (2014) ("[A] court owes deference to the interpretation of a zoning by-law by local officials only when that interpretation is reasonable"). "A zoning board of appeals is entitled to 'all rational presumptions in favor of its interpretation of its own by-law.' " Building Commr. of Franklin v. Dispatch Communications of New England, Inc., 48 Mass. App. Ct. 709, 713 (2000), quoting from Fafard v. Conservation Commn. of Reading, 41 Mass. App. Ct. 565, 572 (1996). We therefore conclude, as did the judge, that the board's decision was not arbitrary, capricious, or erroneous as a matter of law.

2. Alleged inconsistency in application of the by-law. Montvale next argues that the board inconsistently has interpreted the by-law because it has permitted flashing signs similar to the LED sign at other locations. We agree with the judge that the record does not support Montvale's claim. All of the signs to which Montvale points are either (1) off-premises or billboard signs, which are allowed only by special permit, or (2) on-premises signs for which a variance has been granted or the message changes only once per day. By contrast, the LED sign is on-premises, Montvale did not seek or obtain a variance, and the message will change more than once a day. The record thus contradicts Montvale's assertions and demonstrates that the building inspector and the board have been consistent in their interpretation and application of the by-law.

Judgment affirmed.

      The LED sign conforms to all area, dimensional, and setback requirements of the zoning by-law.

      The board did not address the portion of the building inspector's decision denying Montvale's application on the ground that the LED sign is animated, although the defendants made this argument in support of their motion for summary judgment. In light of his conclusion that the LED sign is a flashing one, the judge did not address the question whether the LED sign also is animated. We too decline to address this issue.

      Montvale filed its complaint under G. L. c. 40A, § 17, and G. L. c. 249, § 4. However, because neither party argued the issues under G. L. c. 249, § 4, and because that statute applies to proceedings that are not otherwise reviewable on appeal, the judge proceeded under G. L. c. 40A, § 17, and deemed the issues under G. L. c. 249, § 4, waived. Montvale does not make any argument on appeal regarding this ruling.

      After the hearing on the motions for summary judgment but before the judge rendered his decision, the town amended the bylaw so as to prohibit the type of sign Montvale sought to construct. Montvale brought this amendment to the judge's attention by filing a "Notice of Amendment of Applicable Zoning By-law." The judge concluded that the change in the by-law, which was enacted after Montvale sought a building permit to erect the LED sign, was not applicable. Montvale challenges this ruling on appeal. We agree with the judge that the amendment has no bearing on the issues raised in this case.

      In her affidavit, the building inspector avers that she has brought enforcement actions against various property owners who have signs that display changing messages on the basis that the signs are flashing signs that are prohibited by the by-law. These actions were taken with respect to on-premises and off-premises signs.


text:
    Jennifer Tirrell ROBERTS v. Timothy Paul ROBERTS.
    17-P-1086
    Appeals Court of Massachusetts.
    Entered: March 29, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Jennifer Tirrell Roberts (wife) appeals the dismissal of her complaint for modification. We affirm.

Background. The wife and Timothy Paul Roberts (husband) entered into a separation agreement on January 17, 2013. The agreement provided that it would "be incorporated but not merged into the divorce judgment and shall survive and remain as an independent contract" except for the provisions "dealing with alimony, child support, custody, and visitation." Among the surviving provisions incorporated into the judgment was section two, "life insurance," which required the husband to maintain a life insurance policy "of at least $500,000 ... until the children are emancipated."

On October 7, 2016, the wife filed the complaint for modification, requesting that the life insurance provision of the agreement "be modified by requiring [the husband] to continue his life insurance obligation so long as an award of alimony remains in effect." As grounds for modification, the wife stated that the parties' youngest child "will be emancipated following the current school year, when she attains her undergraduate degree," which would end the husband's obligation to maintain life insurance. The wife now wished the protection of life insurance to secure her future alimony payments.

On November 3, 2016, the husband filed an answer raising three affirmative defenses, and on December 15, 2016, he filed a motion to dismiss. A Probate and Family Court judge held a hearing on the motion on December 21, 2016. The judge dismissed the complaint on December 28, 2016, and denied the wife's motion for relief from judgment on January 31, 2017. This appeal followed.

Discussion. "A separation agreement, fair and reasonable at the time of a judgment nisi, and constituting a final resolution of spousal support obligations, should be specifically enforced, absent countervailing equities." O'Brien v. O'Brien, 416 Mass. 477, 479 (1993). "Countervailing equities include situations where one spouse is or will become a public charge, or where there has been a failure to comply with the agreement." Broome v. Broome, 43 Mass. App. Ct. 539, 544 (1997). "[S]omething more than a material change in circumstances must be established in order to vary the economic terms on which the divorcing parties have agreed." McCarthy v. McCarthy, 36 Mass. App. Ct. 490, 490 (1994).

The wife did not allege any such countervailing equities. She alleged only that the parties' youngest child would soon be emancipated, a condition that the parties explicitly anticipated. This fact is not sufficient to avoid enforcement of the separation agreement. See Broome, supra at 546-548. Nor are we persuaded by the wife's suggestion that the parties intended the husband's life insurance policy to secure both his child and spousal support obligations. As the motion judge observed, the plain language of the agreement does not reasonably support that interpretation. See Krapf v. Krapf, 439 Mass. 97, 105 (2003).

For the purposes of this appeal, we assume, without deciding, that the judge properly could have modified the divorce judgment to compel the husband to carry a life insurance policy to secure his alimony obligation -unlike the life insurance provision, the question of alimony was merged into the judgment-had the wife shown a material change of circumstances. See Vedensky v. Vedensky, 86 Mass. App. Ct. 768, 772 (2014). But the wife failed even to allege a material change in circumstances. The judge did not abuse her discretion in denying the wife's complaint for modification. See Smith v. Edelman, 68 Mass. App. Ct. 549, 555 (2007) (judge did not abuse discretion in concluding "that the termination of alimony payments to the wife was expressly contemplated by the parties' separation agreement, and accordingly did not constitute a material change in circumstances").

Finally, we discern no error or abuse of discretion in the judge's consideration of the husband's motion to dismiss, which did not strictly adhere to Mass.R.Dom.Rel.P. 12 and was in effect a motion for judgment on the pleadings. It is true that the Massachusetts Rules of Domestic Relations Procedure do not specifically authorize a motion for judgment on the pleadings. Nonetheless, the wife filed a written opposition to the husband's motion and received an opportunity to be heard. She has not demonstrated, or even suggested, that she was in any way surprised, hindered in her ability to respond, or unable to submit evidence to demonstrate that a modification was warranted. Accordingly, the procedural irregularities of which the wife complains were not prejudicial and do not warrant disturbing the judgment. See G. L. c. 231, § 119 ; USTrust Co. v. Kennedy, 17 Mass. App. Ct. 131, 135 (1983) ("Every violation of a procedural rule, however, need not-and should not-require the perpetrator to be undone.... Trial judges, therefore, have discretion to forgive a failure to comply with a rule if the failure does not affect the opposing party's opportunity to develop and prepare a response"). Indeed, the wife has not shown that she would have been entitled to modification even if the husband had failed to file a dispositive motion.

Judgment affirmed.

      See G. L. c. 208, § 49(a ), inserted by St. 2011, c. 124, § 3 ("[T]he court may require the payor spouse to provide life insurance or another form of reasonable security for payment of sums due to the recipient in the event of the payor's death during the alimony term").