text:
    Peter L. MURPHY v. Stephen VONA.
    17-P-1061
    Appeals Court of Massachusetts.
    Entered: June 28, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Individually and as trustee of 181 Pineridge Realty Trust.

   The present dispute arises from the purchase, development, and sale of property, through a nominee trust, on Pine Ridge Road in Newton. On July 2, 2014, the plaintiff, Peter L. Murphy, commenced an action in the Superior Court against Stephen Vona, individually and in his capacity as trustee of 181 Pineridge Realty Trust (trust), seeking an accounting of the trust's funds around the time of the sale of the Pine Ridge Road property. Vona filed counterclaims for declaratory judgment, indemnification, breach of contract, breach of fiduciary duty, invasion of privacy, and trespass and conversion. After a bench trial in June of 2016, judgment entered in favor of Murphy on his complaint for an accounting. Judgment entered in favor of Vona on his counterclaims for invasion of privacy and for trespass, and in favor of Murphy on the remaining counterclaims. The judge subsequently denied Vona's motion to amend the final judgment. On appeal, Vona contends that the judge erred in (1) finding that he was personally liable on a $150,000 loan from a real estate investor; (2) concluding that he had failed to equalize the preacquisition capital contributions made by the parties; (3) relying on an unqualified expert witness to determine the construction costs for the Pine Ridge Road project; (4) finding that Murphy did not breach his agreement with him by abandoning the project; and (5) denying his posttrial motion to amend the judgment. We clarify the extent to which Murphy is entitled to prejudgment interest.

1. Background. We summarize the relevant facts as found by the judge in her comprehensive written decision, reserving some details for our discussion of the issues. In early 2011, Vona, a real estate developer, and Murphy, a coffee shop owner, decided to purchase the Pine Ridge Road property, divide it into three lots, renovate the existing house located on one lot, and build two additional homes, one on each new lot. They orally agreed that they would contribute equal amounts of capital towards the property's acquisition, would both work on the Pine Ridge Road project, and would not take any payment for the services they provided. Vona signed the purchase and sale agreement for the property. He contributed $75,000 towards the deposit, and Murphy paid $25,000.

Vona then executed a declaration of trust establishing the trust for the purposes of holding legal title to the Pine Ridge Road property for the benefit of the trust's beneficiaries, and engaging in necessarily incidental functions. Vona, who was the sole trustee, had a seventy percent beneficial interest in the trust, and Murphy had a thirty percent beneficial interest. Among other matters, the declaration of trust did not permit Vona to "borrow money, sell, mortgage or otherwise dispose of all or any part of the Trust Premises" without Murphy's consent.

As the closing date for the Pine Ridge Road property approached, Vona did not have the money he needed for his share of the down payment. Consequently, unbeknownst to Murphy, Vona obtained a loan from a real estate investor, Mark Schwarz, in the amount of $150,000 (Schwarz loan). Dedham Savings (bank) agreed to finance the Pine Ridge Road project and committed to lending the trust $3,584,000, which was secured by a mortgage on the property. Vona elected not to purchase title insurance. The trust acquired the Pine Ridge Road property for $2,200,000. The payment at closing consisted of $1,650,000 from the bank, $390,000 from Murphy, and $79,441.94 from Vona.

Work began on the Pine Ridge Road property in September of 2011. Eight to nine months later, around the time of the closing on the first house, the prospective purchasers discovered a problem with the title and cancelled the closing. The title problem, which took two years to resolve, delayed the sale of the homes, caused the trust to incur significant unanticipated expenses, lengthened the duration of the entire project, and substantially reduced the net sale proceeds. Murphy, who was experiencing financial hardship, became increasingly frustrated and angry with Vona over the delays and unexpected costs. By April of 2013, Murphy had begun to work on another real estate development project, returning to Pine Ridge Road only to perform small jobs at Vona's request. The three completed homes sold for $1,835,000, $2,125,000, and $2,190,000, respectively, amounts which were less than the offers that had been made prior to the discovery of the title problem.

As sole trustee, Vona had exclusive control of the trust's finances and the bank accounts relating to the project. The judge found that, at best, Vona's record-keeping was "very sloppy." Vona used funds from the trust's bank accounts to pay for expenses associated with his other real estate development projects, and, conversely, he used the bank accounts for those other projects to pay for expenses associated with the Pine Ridge Road project. He also charged expenses for all of his projects to one credit card, and he commingled the bills, invoices, and receipts for his various projects. Once the trust began to receive loan disbursements from the bank, Vona started to "reimburse" himself for purported expenses by writing checks or electronically transferring funds from the trust's accounts to his personal or business accounts.

In December of 2013, while at the worksite, Murphy entered Vona's truck and discovered what he thought was a ledger sheet for the trust, which he interpreted as showing suspicious payments from the trust to entities that were not related to the Pine Ridge Road project. Knowing that Vona kept the project's account ledger on the desk in his home office, Murphy entered Vona's house and photographed pages from the ledger without permission to do so. Upset by his discoveries, Murphy commenced the present action, alleging that Vona had improperly spent the trust's funds on personal expenses, seeking to enjoin Vona from "selling, transferring, conveying, removing or otherwise divesting the Trust of its assets," and requesting a true and accurate accounting of all of the trust's funds.

Following a bench trial, the judge determined, as an initial matter, that Vona and Murphy were coventurers in the Pine Ridge Road project. Turning to Murphy's request for an accounting, the judge stated that because Vona had a fiduciary duty to Murphy, Vona was required to account for all of the funds that should be in the possession of the trust, and to demonstrate that he did not misappropriate any such funds. Based on the credible evidence, the judge concluded that Vona had failed to account for his purported capital contributions, the general construction costs, or any trust property in the manner required by Massachusetts law. More specifically, the judge stated that Vona had not maintained clear and accurate records pertaining to the administration of the trust, and had regularly commingled funds from his various real estate development projects, making it impossible to determine whether particular financial transactions were related to the trust. The judge further found that there was considerable evidence of expenses being factored into general construction costs that plainly were not attributable to the trust, such as payments on the Schwarz loan. The judge determined that Vona, in his individual capacity, owed the trust $1,079,721.56, as repayment for improper expenses. The judge denied Vona's motion to amend the judgment. The present appeal ensued.

2. Discussion. a. Standard of review. In civil actions tried without a jury, "[f]indings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." Mass.R.Civ.P. 52(a), as amended, 423 Mass. 1402 (1996). See Kendall v. Selvaggio, 413 Mass. 619, 620 (1992). "A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Id. at 620-621, quoting from J.A. Sullivan Corp. v. Commonwealth, 397 Mass. 789, 792 (1986).

b. Vona's personal liability on the Schwarz loan. Vona contends that the judge erred in determining that he was personally liable for the Schwarz loan. He asserts that the loan was for the benefit of the Pine Ridge Road project, that it was intended to cover initial expenses prior to the receipt of loan disbursements from the bank, and that Murphy had signed a promissory note for the loan in October of 2011. Based on this evidence, Vona argues that the portion of the accounting pertaining to the Schwarz loan and related interest payments must be reversed. We disagree.

As the closing date for the purchase of the Pine Ridge Road property approached, Vona did not have the money he needed for his share of the down payment. Vona secured the Schwarz loan pursuant to a short-term promissory note dated July 26, 2011, that was signed by Vona in his individual capacity, and the funds were transferred to a bank account associated with his own business, not to an account for the trust, which had not yet been established. The judge found that Murphy did not know that Vona had borrowed $150,000 from Schwarz.

Several months later, Vona proposed to Murphy that they borrow money from Schwarz so that construction on the Pine Ridge Road project could begin, and Murphy could be reimbursed for his overpayment of his preacquisition capital contribution. It was Murphy's understanding that this would be a personal loan. In October of 2011, Vona and Murphy signed a short-term promissory note in favor of Schwarz for $150,000. As the judge properly found, this note was merely a reissuance of the note that Vona had personally signed on July 26, 2011, albeit now with an extended repayment period and a higher interest rate. Schwarz did not provide any additional funds. We conclude that the judge's finding that the Schwarz loan was Vona's personal obligation was not clearly erroneous.

c. Equalization of preacquisition capital contributions. Vona argues that the judge's determination that he must personally reimburse Murphy in the amount of $130,279.03 to equalize the parties' preacquisition capital contributions to the Pine Ridge Road project was clearly erroneous. Vona asserts that, after the closing on the Pine Ridge Road property, he made several payments to Murphy and contributions to the trust which more than offset Murphy's overpayment of preacquisition capital. Therefore, Vona continues, he has satisfied his reimbursement obligation to Murphy.

It is undisputed that when the parties decided to purchase the Pine Ridge Road property, they agreed that they would contribute equal amounts of capital towards its acquisition. Because the parties' combined preacquisition capital contributions totaled $569,441.94 (comprised of a $100,000 purchase and sale deposit, and a $469,441.94 down payment at closing), Vona and Murphy were each obligated to pay $284,720.97. Murphy's preacquisition capital contribution totaled $415,000 (a $25,000 deposit, and a $390,000 down payment), whereas Vona's preacquisition capital contribution totaled $154,441.94 (a $75,000 deposit, and a $79,441.94 down payment). Consequently, Vona owed Murphy $130,279.03 to equalize their preacquisition capital contributions. The judge found that in October of 2011, Vona paid Murphy $50,000 from the funds that he had personally received as part of the Schwarz loan; the judge credited Vona for this payment, thereby reducing the amount that Vona owed Murphy to $80,279.03.

Where Vona challenges the judge's purported failure to credit him for additional payments made to offset the parties' unequal preacquisition capital contributions, Vona was required to show that he made such payments to Murphy from his own funds. The judge properly found that Vona's financial record-keeping was extremely "sloppy," that Vona regularly commingled his personal funds with those of the trust and of his other real estate development projects, and that it was virtually impossible to ascertain the source of various payments that Vona claimed to have made. The judge was not required to simply accept Vona's testimony regarding additional payments. See New England Canteen Serv., Inc. v. Ashley, 372 Mass. 671, 675 (1977) ("[I]t is the trial judge who, by virtue of [her] firsthand view of the presentation of evidence, is in the best position to judge the weight and credibility of the evidence"). We conclude that the judge's finding that Vona must personally reimburse Murphy in the amount of $80,279.03 to equalize the parties' preacquisition capital contributions was not clearly erroneous.

d. Determination of construction costs. Vona contends that the judge erred in relying on an expert report from Schwarz to ascertain the general construction costs for the Pine Ridge Road project. Based on that report, the judge found that Vona was liable to the trust in the amount of $913,515.56, which was the difference between the costs as determined by Vona's expert witness ($2,633,600.56), and the costs as determined by Schwarz ($1,720,085). Vona also asserts that Schwarz's report failed to take into account a number of construction-related expenses, including costs to settle a zoning issue, carrying costs resulting from the title problem, and costs to remove the customizations of two homes. In Vona's view, the only qualified expert was his expert, and the judge's rejection of his opinion was clearly erroneous. We disagree.

It is well established that a trustee has a duty "to keep clear and accurate accounts with respect to the administration of [a] trust[ ]." Akin v. Warner, 318 Mass. 669, 674 (1945). See Briggs v. Crowley, 352 Mass. 194, 199-200 (1967). The trustee bears the burden of accounting for all of the assets in the trust and demonstrating that there was no misappropriation of or failure to preserve such assets. See Akin v. Warner, supra at 674-675; Rugo v. Rugo, 325 Mass. 612, 617 (1950). A trustee who fails to accurately account for the handling of trust property "must stand the loss." Markus v. Markus, 331 Mass. 394, 399 (1954). See Attorney Gen. v. Bedard, 218 Mass. 378, 385-386 (1914) (trustees "must be charged with everything for which they have not properly accounted" because it is their obligation "to keep the trust fund distinguished from other moneys in their hands"). In an action for an accounting, a court will adjudicate the amount of funds that should be in the possession of a trust, and will determine any amounts for which the trustee is liable to the trust or its beneficiaries. See Milbank v. J.C. Littlefield, Inc., 310 Mass. 55, 61 (1941).

Here, the judge concluded that Vona had failed to meet his burden of accounting for general construction costs. Vona had not maintained clear and accurate records for the trust, he had regularly commingled funds from his various real estate development projects, and he had factored expenses into general construction costs that were not attributable to the trust. As the judge correctly noted, the burden was on Vona, not on the court, to marshal the evidence in a clear and comprehensible fashion. The judge was not required to credit Vona's expert's testimony and report, particularly where his financial analysis was not comprehensive in scope. See Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 509-510 (1997) ; Gaw v. Sappett, 62 Mass. App. Ct. 405, 409 (2004).

Contrary to Vona's argument, the judge did not disqualify Schwarz as an expert witness. Rather, the judge stated that Schwarz was not an accounting expert, and she found that he was biased due to a prior relationship with Murphy, but she relied on his expert opinion as to the costs of renovation and construction for the Pine Ridge Road project. It was within the judge's discretion to do so. See Leibovich v. Antonellis, 410 Mass. 568, 571-573 (1991). See also New England Tel. & Tel. Co. v. Assessors of Boston, 392 Mass. 865, 870 (1984). Given that Vona, not Murphy, had the burden of accounting for the trust's funds, the judge properly could decide that the shortcomings in Schwarz's testimony were inconsequential. See Lenehan v. Travers, 288 Mass. 156, 159 (1934). We conclude that the judge did not err in determining the general construction costs.

e. Murphy's abandonment of the project. Vona argues that, contrary to the parties' agreement to work on the Pine Ridge Road project to completion, Murphy failed to contribute any time or sweat equity from April of 2013 until June of 2014, thereby effectively abandoning the project. Vona requests that we remand the matter so that the judge can make findings as to the damages he sustained. We decline to do so.

Contrary to Vona's assertion, the judge did not determine that Murphy had abandoned the Pine Ridge Road project. Instead, the judge found that Vona had elected not to purchase title insurance; that the title problem took two years to resolve; that the delay caused Murphy to become frustrated, angry, and financially strapped; that Murphy undertook another real estate project in April of 2013; that he periodically returned to Pine Ridge Road when Vona asked him to perform small jobs; and that Murphy returned to the project once the title problem was resolved. Moreover, with respect to Vona's counterclaims, the judge concluded that Murphy did not breach either a fiduciary duty to Vona or an implied covenant of good faith and fair dealing. It was the province of the judge to accept the testimony of Murphy that he did not abandon the Pine Ridge Road project. See Gaw v. Sappett, 62 Mass. App. Ct. at 409. We add that the judge determined that Vona was entitled to reimbursement for reasonable warranty work that he performed, without Murphy, after the houses were sold. There was no error.

f. Motion to amend the final judgment. Finally, Vona claims that the judge erred in denying his motion to amend the judgment because Murphy was not entitled to prejudgment interest with respect to the accounting. In the final judgment, the judge stated that funds shall be distributed as specified, "subject to interest as provided by law." The judge first detailed the amounts of money that Vona, either in his individual capacity or in his trustee capacity, was obligated to pay Murphy and the trust. She did not specifically mention interest with regard to these distributions. The judge then set forth the amount of money that Murphy owed Vona as damages for invasion of privacy and trespass, and she stated that the court would compute statutory interest from the date of the counterclaim (August 26, 2014).

We recognize that a request for an accounting is an equitable proceeding. See Berwin v. Cable, 313 Mass. 431, 435-437 (1943) ; Lembo v. Casaly, 5 Mass. App. Ct. 240, 240-241 (1977). See also Nolan & Sartorio, Equitable Remedies § 19.1 (3d ed. 2007) ("[A]ctions for an accounting are cognizable under the general principles of equity jurisprudence"). The final judgment in such an action should "state and adjudicate the account and show the balance due from one party to the other." Milbank v. J.C. Littlefield, Inc., 310 Mass. at 61. See DiManno v. DiManno, 332 Mass. 709, 712 (1955).

Here, apart from adjudicating an accounting of the trust's funds, the judge also determined that Murphy was entitled to reimbursement from Vona for preacquisition and postacquisition capital contributions. Such reimbursements can fairly be characterized as "damages." See Rood v. Newberg, 48 Mass. App. Ct. 185, 195 (1999) (defining meaning and purpose of damages). General Laws c. 231, § 6H, provides that "[i]n any action in which damages are awarded, but in which interest on said damages is not otherwise provided by law," interest shall be added thereon at the rate set forth in G. L. c. 231, § 6B. It is well established that prejudgment interest is awarded "to compensate a damaged party for the loss of use or the unlawful detention of money." Conway v. Electro Switch Corp., 402 Mass. 385, 390 (1988). See Rood v. Newberg, supra at 194-195. "The damaged party is entitled to a return on the money that the party would have had but for the other party's wrongdoing." McEvoy Travel Bureau, Inc. v. Norton Co., 408 Mass. 704, 717 (1990). A judge does have the authority not to award prejudgment interest where it would result in a windfall to the recipient. See Sterilite Corp. v. Continental Cas. Co., 397 Mass. 837, 841-842 (1986) ; Nissan Autos. of Marlborough, Inc. v. Glick, 62 Mass. App. Ct. 302, 311 (2004). In this case, we do not view an award of prejudgment interest as constituting a windfall.

3. Conclusion. For the foregoing reasons, we vacate, in part, the order denying the motion to amend. The final judgment entered on April 21, 2017, shall be modified to clarify that prejudgment interest shall be added to the amounts set forth in parts 1A and 1C of the judgment. Prejudgment interest on the amounts set forth in parts 3 and 4 of the judgment shall be awarded from from the date of the counterclaim. In all other respects, the judgment and order are affirmed. As requested, Murphy is entitled to the costs of this appeal. See Mass.R.A.P. 26, as amended, 378 Mass. 925 (1979).

So ordered.

Vacated in part; affirmed in part.

      The judge also determined that (1) Vona, in his individual capacity, owed Murphy $80,279.03 in satisfaction of the parties' agreement to contribute equal amounts of preacquisition capital; (2) Vona, as trustee, owed Murphy $238,145.52 as reimbursement for his outstanding preacquisition and postacquisition capital contributions; (3) Vona, as trustee, owed Murphy $406,006.85, which represented Murphy's thirty percent beneficial interest in the trust; (4) Murphy owed Vona $5,000 in damages on Vona's counterclaim for invasion of privacy; and (5) Murphy owed Vona $100 in nominal damages on Vona's counterclaim for trespass.

      Vona further argues that the judge erred by only addressing "construction costs," and not other expenses of the trust, including mortgage costs, legal fees, closing costs, property taxes, utility costs, and the like. Vona claims that he advanced personal funds for these incidental expenses, and that the judge's failure to credit him for such payments constituted reversible error. Because this claim was raised in a footnote in the brief, it does not rise to the level of appellate argument, and, therefore, we deem it waived. See Mole v. University of Mass., 442 Mass. 582, 603 n.18 (2004).

      We view the amounts set forth in parts 1B and 1D of the judgment as providing an accounting, as to which Murphy is not entitled to prejudgment interest.


source: Caselaw Access Project

license: Public Domain

text:
    Debra DAVIDOWICZ v. 4M FRUIT DISTRIBUTORS, INC., & others.
    17-P-660
    Appeals Court of Massachusetts.
    Entered: June 28, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Mark DeFrancesco and Maria DeFrancesco.

   Following several months of leave due to cancer treatment, the plaintiff's employment was terminated. She brought an action in the Superior Court against her former employer, 4M Fruit Distributors, Inc. (4M); Mark DeFrancesco (Mark ), the owner and president of 4M; and Maria DeFrancesco (Maria), the office manager of 4M (collectively, the defendants), alleging handicap discrimination in violation of G. L. c. 151B, and aiding and abetting handicap discrimination. A judge allowed the defendants' motion for summary judgment, concluding that the plaintiff was not a "qualified handicapped person" as she was unable to perform the essential functions of her job at the time she was terminated, and that the defendants had no obligation to keep her position open indefinitely. The plaintiff now appeals. We vacate in part and affirm in part.

Background. We briefly summarize the critical facts, viewed in the light most favorable to the plaintiff. See Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 680 (2016). The plaintiff began working as a billing clerk for 4M in 2000. In September of 2011, she was diagnosed with head and neck cancer. On November 4, 2011, she took a medical leave of absence to receive treatment including radiation and chemotherapy. The radiation and chemotherapy treatments ended on or about November 22, 2011.

The plaintiff then received several open-ended grants of leave from the defendants, who gave their assurance as late as March of 2012 that she still had a job. During this leave period, Mark told the plaintiff that he was afraid that his health insurance premiums would increase because of her cancer. On April 17, 2012, the plaintiff spoke to Louis Simonelli, then the owner of twenty-five percent of 4M, and told him that she had a letter stating that she could return to work. Simonelli told her to speak to Maria, who directed her to speak to Mark. The plaintiff advised Mark that she had a doctor's note clearing her to return to work. He replied that 4M no longer had any work for her. The parties agree that the plaintiff was terminated on April 17, 2012.

Discussion. To prevail on a motion for summary judgment, the moving party bears the burden of demonstrating that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See Bulwer, supra; Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002). In considering such a motion, we view the evidence and draw all reasonable inferences in the light most favorable to the nonmoving party. See Premier Capital, LLC v. KMZ, Inc., 464 Mass. 467, 474-475 (2013). Additionally, our review is de novo. See Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 474 Mass. 382, 395 (2016).

To establish a prima facie case of employment discrimination on the basis of handicap, the plaintiff "must show that he or she suffered an adverse employment action, that he or she has a 'handicap,' as defined in G. L. c. 151B, § 1, that he or she is a 'qualified handicapped person,' as defined in § 1, and that the adverse action was taken because of his or her handicap." See Gannon v. Boston, 476 Mass. 786, 795 (2017). See also Dartt v. Browning-Ferris Indus., Inc. (Mass.), 427 Mass. 1, 3 (1998). The critical issue in this case is whether the plaintiff can establish that she was a "qualified handicapped person" under G. L. c. 151B, § 1(16). A "qualified handicapped person" is defined as "a handicapped person who is capable of performing the essential functions of a particular job, or who would be capable of performing the essential functions of a particular job with reasonable accommodation to his handicap." Ibid. Employees are not entitled to unlimited leaves of absence, but a request for a limited extension of time may constitute a reasonable accommodation in some circumstances. See Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. 443, 455-456 (2002). An employer's refusal to provide reasonable accommodation during the interactive process, once initiated as it was here, violates G. L. 151B, § 4(16). See Russell, supra at 457-458.

Here, a genuine issue of material fact exists as to whether the plaintiff was a qualified handicapped person within the meaning of the statute. Through a combination of her own testimony and the doctor's letter, the plaintiff provided evidence that on the date of her termination, she was capable of performing the essential functions of her billing clerk position with reasonable accommodation (i.e., a short extension of her leave until April 23, 2012). The judge concluded, however, that the doctor's letter did not support her claim because the plaintiff "has not produced any evidence from which this court could reasonably infer that she received the letter prior to April 23, 2012." We disagree.

The plaintiff repeatedly testified that she received the letter on April 17, 2012. Although the letter is dated April 23, six days after she was terminated, the plaintiff averred that she had the letter in hand on April 17 and that it was dated for the 23rd (the following Monday) because that was the day she was cleared to return to work. The judge discounted this assertion as being supported only by the plaintiff's "unsupported conclusory allegation." Contrary to this view, the plaintiff's deposition testimony, while perhaps implausible and contrary to the majority of the record evidence, constituted more than a general denial or conclusory statement. Although the judge's conclusion was understandable, he was not free to make a credibility assessment or resolve factual disputes at this stage of the proceedings. This is particularly so where the factual dispute concerned a determinative issue in this case: whether the plaintiff was qualified to perform the essential functions of her job at the time of termination. If she had the doctor's letter in hand on April 17, and was indeed ready to return to work with a one-week accommodation, then she was potentially a qualified handicapped person under the statute. Accordingly, there was a triable issue of fact, which precludes summary judgment.

The defendants contend that even if the plaintiff had received medical clearance to return to work as of April 17, summary judgment was still appropriate because 4M had already eliminated her position. See Gannon, 476 Mass. at 793 n.4. We disagree. There is no evidence in the summary judgment record delineating the specific date on which the defendants eliminated or decided to eliminate the plaintiff's position. Accordingly, there was a material dispute of fact as to whether the defendants decided to eliminate her position before she was terminated, or in reaction to her news that she was ready to return.

Finally, the plaintiff maintains that her aiding and abetting claim against the DeFrancescos was wrongly dismissed on summary judgment. See G. L. c. 151B, § 4(5). We disagree. In the context of an aiding and abetting action brought under c. 151B, the plaintiff must show, in relevant part, an individual and distinct wrong, separate from the underlying claim of discrimination. See Lopez v. Commonwealth, 463 Mass. 696, 713-714 (2012). In the present case, the evidence viewed in the light most favorable to the plaintiff fails to show that either individual defendant committed a "wholly individual and distinct wrong ... separate and distinct from the claim in main." Id. at 713 (quotation omitted). See Jupin v. Kask, 447 Mass. 141, 159 n.17 (2006) ("[W]e may affirm the grant of summary judgment on any ground apparent from the summary judgment record").

In sum, we conclude that genuine issues of material fact preclude a conclusion that the plaintiff is not a qualified handicapped person as a matter of law. Accordingly, so much of the judgment as dismisses the claim of handicap discrimination is vacated, and the judgment is otherwise affirmed. The case is remanded for further proceedings in accordance with this memorandum and order.

So ordered.

Vacated in part; affirmed in part and remanded.

      For convenience we sometimes employ first names for the DeFrancescos.

      The facts are taken from the consolidated statement of material facts.

      On several occasions between November of 2011 and March of 2012, the plaintiff spoke to either Mark or Maria about her ability to return to work. The defendants never imposed a deadline for her return, and the plaintiff did not provide an exact date by which she could come back. Instead, the plaintiff stated in most of these discussions that she would "probably" be able to return to work within a few weeks. In early April, 2012, Maria informed the plaintiff that she would need a doctor's note in order to return to work.

      Louis Simonelli died at some point after April of 2012, but the record does not specify the date of his passing.

      In the memorandum of decision on the motion for summary judgment, the judge disregarded the plaintiff's "responses and submissions not presented in the manner required by [Superior] Court Rule 9A(b)(5)" because many responses were "prolix, include argumentative and hyperbolic characterizations of the facts and legal arguments, and assert the existence of a factual dispute but [do] not cite to supporting evidentiary material." Nonetheless, the court reviewed and considered "all evidentiary materials submitted to determine whether any genuine dispute of material fact exists." This approach was within the judge's discretion.

      Maria's deposition testimony reflects that Mark decided to "terminate" the plaintiff "in April" because the plaintiff's "position was no longer needed." Mark testified that he terminated the plaintiff "[s]ometime in April."

      The defendants argue that this case epitomizes the maxim, "no good deed goes unpunished." While we offer no opinion as to the accuracy of the defendants' contention, portions of the undisputed facts reflect that the defendants provided periods of extended leave to the plaintiff. Our decision should not be read to imply otherwise. We only hold that genuine issues of material fact, as discussed herein, preclude summary judgment as to the handicap discrimination claim.


text:
    Lisa L. LANZILLOTTI v. Erik M. PETERSON.
    17-P-1063
    Appeals Court of Massachusetts.
    Entered: June 28, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a hearing on Lisa L. Lanzillotti's (mother) complaint for modification and Erik M. Peterson's (father) counterclaim for modification, a Probate and Family Court judge issued two judgments, one awarding sole physical custody to the mother and reducing the father's parenting time with their minor child, and the other denying the father's counterclaim. The father appeals, arguing that the judge adopted the mother's proposed judgments without undertaking independent analysis, that the findings were not supported by and were contradictory to the evidence introduced at the hearing, and that the judge did not consider the child's best interest in entering the modification of the parties' joint parenting schedule. The mother cross-appeals, arguing that the judge erred in denying her sole legal custody. We affirm.

1. Findings and conclusions of law. The father claims that because the judge adopted in whole the mother's proposed judgments and proposed rationale, findings, and conclusions of law, the judgments that issued lacked "any badge of personal analysis" or "other reflection of independent work on the part of the [j]udge." We will strictly scrutinize, and sometimes set aside, findings that are proposed by the parties and adopted by the judge when they are not supported by the evidence. See Cormier v. Carty, 381 Mass. 234, 236-238 (1980). Upon review of the findings in this case, we disagree with the father's claim.

The key findings underpinning the change in circumstances to support custody modification are that, since the parties' divorce, the father moved to a town sixty miles away from where the parties lived at the time of their divorce and failed "to disclose to [or discuss with] [the] [m]other important decisions and events which directly impact [the child]." These findings were supported by the evidence, including: (1) the guardian ad litem's testimony that she was concerned the father did not communicate his intention to move to Longmeadow to the mother earlier; (2) the father's testimony that the child must wake up at 5:30 A.M. on transition mornings in order to arrive at the mother's house by 7:00 A.M. ; and (3) the mother's testimony that the child is "exhausted," "generally a different little girl," and "tired and cranky" since the father's move.

In addition, the judge evaluated the credibility of the mother's testimony regarding her choice of living arrangements and rejected the mother's request for sole legal custody, indicating that she did not accept the mother's proposed judgments wholesale. For these reasons, "[w]e are satisfied that the judge's findings bear the imprint of [her] independent judgment and that they should be given the weight customarily afforded findings of trial judges." Edinburg v. Cavers, 22 Mass. App. Ct. 212, 219-220 (1986).

2. Sufficient evidentiary basis. The father also claims that several of the judge's findings lacked a sufficient evidentiary basis. We disagree.

Some of the challenged findings have their evidentiary basis in credibility determinations, such as the father's motivations for moving to Longmeadow and desiring to send the child to a preschool in Enfield, Connecticut. Others are supported by the exhibits contained within the record, such as the father "excessively" sending the mother electronic mail messages that included "request[s for] personal information unrelated to [the child]." As to the several "conclusory" findings that the father claims are entirely unsupported by the record, those findings resulted from the judge reasonably weighing the evidence contained within the record. "Absent clear error, we will not substitute our weighing of the evidence for that of a trial judge who had the opportunity to observe the witnesses and form conclusions about their credibility, even if our weighing of the evidence might have differed from that of the judge." B.B.V. v. B.S.V., 68 Mass. App. Ct. 12, 18-19 (2006), quoting from A.H. v. M.P., 447 Mass. 828, 838 (2006). We find no such error in the judge's findings.

3. Modification of parenting schedule and legal custody. Next, the father disputes the judge's determination that, despite the parties previously sharing physical and legal custody, the mother was the primary caretaker of the child and was the "more appropriate parent" to have sole physical custody. Furthermore, on cross appeal, the mother argues that the judge erred in finding that it was not in the child's best interest to award her sole legal custody. We disagree with each of these claims.

The judge crafted the parenting schedule set forth in the judgment "to minimize the long frequent commutes and transitions" the child undergoes each week. As the judge found, the mother's home is closer in proximity to the child's pediatrician, preschool, and family supports, and to the mother's dental practice. The parenting schedule also contemplated the close bond the mother and child share, while ensuring that the father is able to maintain and foster his relationship with the child. The parenting schedule therefore takes the child's best interest into primary consideration and was not error. See Rolde v. Rolde, 12 Mass. App. Ct. 398, 402 (1981).

Furthermore, although the judge found that it was in the best interest of the child to grant sole physical custody to the mother, the judge refused to award the mother sole legal custody. As stated by the judge, although "[m]any of the [f]ather's interactions with the [m]other" support the mother receiving sole physical custody, "they do not rise to a level to justify a change as to legal custody." Based on the facts found by the judge on the evidence before her, there was no error in maintaining joint legal custody.

Judgments affirmed.

      The father alerts us to a finding that purports to limit the parties' communication to one electronic mail message per week regarding the child's well-being and care, but that no such restriction is contained in the judgment. This discrepancy, which can best be characterized as oversight, does not constitute a basis for overturning an otherwise sufficient judgment.

      The mother's request for appellate attorney's fees is denied.


text:
    COMMONWEALTH v. Mark ANDREWS.
    17-P-804
    Appeals Court of Massachusetts.
    Entered: June 27, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury trial in the District Court, the defendant was convicted of breaking and entering a motor vehicle with the intent to commit a misdemeanor. He appeals, arguing that the judge erred in denying his motion for a required finding of not guilty because the Commonwealth presented insufficient evidence to show that he had the requisite intent to commit the misdemeanor. We affirm.

"When reviewing a motion for a required finding of not guilty, we view the evidence in the light most favorable to the Commonwealth. Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). We must consider whether 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' Id. at 677, quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979)." Commonwealth v. McWilliams, 473 Mass. 606, 610 (2016). General Laws c. 266, § 16A, as amended by St. 1966, c. 408, provides that "[w]hoever in the nighttime or daytime breaks and enters a ... vehicle with intent to commit a misdemeanor shall be punished ...." Here, as noted, supra, the defendant contests only the element of "intent to commit a misdemeanor."

At trial, the victim testified that, at 2:00 P.M. on April 12, 2015, he was standing in his kitchen looking out of the window overlooking his driveway, when he saw the defendant leaning into the open window of his daughter's car; the defendant's head and chest were inside the car, which was parked in the driveway some thirty feet from the roadway. Initially the victim thought the person could be his daughter's friend, who might have left something in the car from the night before and was merely stopping by to pick it up. However, when he realized there was no other car or bike in the driveway-only the defendant holding a skateboard-he concluded, "it just seemed, okay, this is not normal." When the victim went out into the driveway and confronted him, the defendant stated that he had not leaned into the car, rather, he was merely using the driveway to turn around.

At trial, the defendant reiterated that he had entered the driveway (an upward slope) for the purpose of slowing, or stopping, his "longboard" skateboard near the bottom of the steep hill he was descending. He testified that it "was really the only way to stop." The defendant also insisted that, when he executed his turn, he did not touch either of the two cars parked in the victim's driveway, nor did he reach any part of his body into the daughter's car. The defendant maintained that he was not in the driveway for very long before the victim came out of the house; by that time, he testified, he had already made his turn and his back was toward the house.

A reasonable jury could have found this evidence sufficient to prove that the defendant had reached into the car, intending to commit the crime of larceny. "A person's knowledge or intent is a matter of fact, which is often not susceptible of proof by direct evidence, so resort is frequently made to proof by inference from all the facts and circumstances developed at the trial .... The inferences drawn by the jury need only be reasonable and possible and need not be necessary or inescapable." Commonwealth v. Moore, 50 Mass. App. Ct. 730, 735 (2001), quoting from Commonwealth v. Longo, 402 Mass. 482, 487 (1988). Here, the defendant's intent to steal may be inferred from the fact that he "leaned" his head and chest into the car through the open passenger window and, when confronted, offered no explanation for his behavior, but, rather, insisted that he had not "reached into any cars that were in the driveway," but merely turned around in the driveway. See, e.g., Commonwealth v. Shedd, 140 Mass. 451, 453 (1886) ("There was evidence tending to prove that the defendant broke and opened the windows, which was the act alleged to have been done in the attempt to commit the burglary; and the jury might well have inferred, from the circumstances attending the act, and from the conduct and declarations of the defendant, that the act was done for the purpose of stealing"). See also Commonwealth v. Murphy, 31 Mass. App. Ct. 901, 903 (1991). Although the defendant here offered contradicting evidence, the weight of the evidence was for the jury to determine. See Commonwealth v. Lebron, 66 Mass. App. Ct. 907, 910 (2006) ("[C]redibility determinations are in the purview of the fact finder").

Viewing this evidence in the light most favorable to the Commonwealth, and all permissible inferences drawn therefrom, we are satisfied that the Commonwealth presented "enough evidence that could have satisfied a rational trier of fact of each ... element beyond a reasonable doubt." Commonwealth v. Torres, 468 Mass. 286, 292 (2014), quoting from Latimore, 378 Mass. at 677-678. That is, the jury reasonably could have concluded that the evidence was sufficient to prove that the defendant intended a larceny, albeit a misdemeanor, when he reached into the open window of the car while it was parked in the driveway of the victim's home. We see no error.

Judgment affirmed.

      The defendant was acquitted of assault by means of a dangerous weapon.

      The defendant testified that longboards can travel up to forty miles per hour.


text:
    DEPARTMENT OF REVENUE v. C.P.R.
    17-P-1345
    Appeals Court of Massachusetts.
    Entered: June 27, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Child support enforcement division, on behalf of E.W. and the Department of Transitional Assistance.

   The defendant (father) appeals from a judgment declaring him to be the child's father and ordering him, among other things, to pay specified child support. We affirm.

At the outset, we note that, as a pro se litigant, the father is held to the same standard as a litigant represented by counsel. See Maza v. Commonwealth, 423 Mass. 1006, 1006 (1996). Moreover, we are not required to consider appellate contentions falling below a minimal quality of competent legal argument. See Zora v. State Ethics Commn., 415 Mass. 640, 642 n.3 (1993), and cases cited; Cameron v. Carelli, 39 Mass. App. Ct. 81, 85-86 (1995), and cases cited. Here, the argument section of the father's brief is conclusory, prolix, and rambling. Assuming, without deciding, that we may read the father's brief as alleging nonfrivolous constitutional and legal errors by the Department of Revenue (Department) and by the Probate and Family Court, we address them in turn.

It is undisputed that E.W. (mother) is (and at the time of the birth was) unmarried and that the child received public assistance benefits from the Department of Transitional Assistance (DTA). The mother identified the father as the child's father. Accordingly, and contrary to the father's suggestion, the Department has both standing and an obligation to seek indemnity from the father on behalf of the DTA and to bring an action on behalf of the mother to establish paternity and to enforce support. See G. L. c. 18, § 21 ; G. L. c. 119A, §§ 2(a ), 3(a ). The Probate and Family Court has subject matter jurisdiction to consider the Department's complaint. See G. L. c. 119A, § 3(c )(5) ; G. L. c. 209C, §§ 3, 5(a ), 5(d ). The Department's complaint, alleging, among other things, that the child was born outside of a marital relationship and that the father is the child's father, more than sufficiently sets out factual allegations establishing the Department's claims.

The father's argument that he suffered a violation of his constitutional rights during the paternity proceedings is also without merit. The father cannot claim insufficient process because he admittedly received all notices due to him under applicable law and he objected to and vigorously participated in these proceedings throughout. The father does not assert, nor does the record reveal, that he lacked a full and fair opportunity to be heard "at a meaningful time and in a meaningful manner." Adoption of Simone, 427 Mass. 34, 39 (1998), quoting from Armstrong v. Manzo, 380 U.S. 545, 552 (1965). Additionally, we find no merit in the father's argument that the statutes at issue violate the Fourteenth Amendment to the United States Constitution either facially or as applied.

The judge also did not err by admitting into evidence the father's refusal to take a genetic marker test or by drawing an adverse inference therefrom. See G. L. c. 209C, § 17 ; Department of Rev. v. B.P., 412 Mass. 1015, 1016-1017 (1992). Simply because the father invoked his privilege pursuant to the Fifth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights does not preclude the adverse inference in this civil action. See Department of Rev. v. B.P., supra. See also Frizado v. Frizado, 420 Mass. 592, 596 (1995). To the extent that the father's remaining arguments rise to an appellate level, see Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975), we deem those arguments to be without merit for substantially the reasons set forth in the Department's responsive brief at pages thirty-three to thirty-six and thirty-eight to forty-two.

Judgment affirmed.

      Recipients of public assistance benefits from the DTA subrogate to the DTA the right to collect child support payments owed them. See G. L. c. 18, § 21 ; Brady v. Brady, 380 Mass. 480, 483-486 (1980) (discussing this subrogation). The Department, in turn, acts to collect for the DTA. See G. L. c. 119A, §§ 2, 3.


text:
    COMMONWEALTH v. Michael BRACE.
    16-P-390
    Appeals Court of Massachusetts.
    Entered: June 27, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   In 1993, the defendant was indicted on two counts of rape of a child, his stepdaughter. In 1996, prior to trial, he entered guilty pleas on both counts pursuant to North Carolina v. Alford, 400 U.S. 25, 37-38 (1970), and a Superior Court judge sentenced him to State prison. In 2001, the defendant filed his first motion to withdraw guilty pleas and for new trial; the record before us does not indicate that any action was taken on that motion. In 2005, after the defendant was charged with open and gross lewdness, his probation was revoked and the suspended portion of his sentence on the rapes was imposed. The open and gross lewdness charge subsequently was reduced to indecent exposure, and a jury found him not guilty of that charge. The defendant challenged his probation revocation in this court, which affirmed it in an unpublished memorandum and order pursuant to our rule 1:28. See Commonwealth v. Brace (Brace I ), 75 Mass. App. Ct. 1109 (2009).

Meanwhile, the defendant filed his second motion for new trial on the underlying rape convictions in 2006. The motion judge, who was also the plea judge, denied the second motion, and the defendant's motion to reconsider that decision. The defendant initially sought to appeal those rulings, but, after we vacated the notice of appeal and entry of the appeal, the defendant did not pursue that appeal further. Instead, he filed a third motion for new trial in 2011, which was denied by a Superior Court judge, who was not the plea judge. We affirmed the order denying the third motion for new trial in an unpublished memorandum and order pursuant to our rule 1:28. See Commonwealth v. Brace (Brace II ), 84 Mass. App. Ct. 1129 (2014).

The defendant then filed a second motion to reconsider the denial of his third motion, which was denied by the same judge who denied his second motion. He now challenges that last denial, arguing that he was entitled to a new trial on multiple grounds: his trial counsel was ineffective, the revocation of his probation and the imposition of the suspended sentence were unlawful, the plea judge took part in negotiating the plea bargain, the motion judge erred in denying him an evidentiary hearing on his third motion, and the Commonwealth failed to disclose certain purportedly exculpatory information. Discerning no abuse of discretion or substantial risk of a miscarriage of justice, we affirm.

As an initial matter, we note that some of the defendant's arguments were directly addressed by this court in our prior rulings, and the defendant is estopped from making them. See Brace I, supra (addressing lawfulness of revocation of defendant's probation); Brace II, supra (addressing defendant's claim of ineffective assistance of trial counsel). See also Commonwealth v. Ellis, 475 Mass. 459, 475 (2016), quoting from Commonwealth v. Rodriguez, 443 Mass. 707, 710-711 (2005) ("[W]here a defendant ... simply seeks to relitigate a motion that was previously denied by the motion judge and rejected on direct appeal, 'principles of direct estoppel operate as a bar to the defendant's attempt ... to relitigate issues' ").

Furthermore, to the extent that the issues the defendant now seeks to raise on appeal were not previously raised either at trial or in his multiple earlier motions and appeals, he has waived them. See Commonwealth v. Chase, 433 Mass. 293, 297 (2001) ("The defendant waived the issues he now raises [in his motion for new trial] by not presenting them in his direct appeal"). "A defendant generally may not raise any ground in a motion for a new trial that could have been, but was not, raised at trial or on direct appeal.... It is neither unreasonable nor unduly burdensome to require a defendant to advance his contentions, even those with constitutional ramifications, at the first opportune time." Ibid.

In any event, the defendant has failed to demonstrate that the issues he now seeks to raise create a substantial risk of a miscarriage of justice. The defendant's argument that the plea judge unduly participated in the negotiation of the plea appears to be based on the judge's remark during the plea hearing, "I think you would be very wise to give serious consideration to [the plea deal] the government is proposing." We find nothing in that remark, in the context of the entire comprehensive plea colloquy administered by the judge, that would suggest that the judge was an "active negotiator[ ] in plea bargaining discussion[ ]." Commonwealth v. Gordon, 410 Mass. 498, 501 n.3 (1991).

Likewise unavailing is the defendant's argument that the motion judge, in denying an evidentiary hearing on his third motion, erroneously relied on a letter the defendant wrote to the parole board in 1997, in which the defendant confessed to having raped his stepdaughter. Putting aside the fact that the defendant has not provided us with any evidence (other than a statement in his appellate brief) that he wrote the letter under duress, the defendant also admitted to two qualified examiners in 2002 that he had sexually abused the victim, Brace II, supra, which the Commonwealth brought to the attention of the motion judge. Therefore, the motion judge had ample reason to deny an evidentiary hearing, because the defendant failed to raise " 'a substantial issue' that [was] supported by a 'substantial evidentiary showing.' " Commonwealth v. Sylvester, 476 Mass. 1, 5 (2016), quoting from Commonwealth v. Scott, 467 Mass. 336, 344 (1981).

Finally, the defendant's claim that the Commonwealth violated its discovery obligations, see Maryland v. Brady, 373 U.S. 83, 87 (1963), by failing to disclose certain records to the defendant, also lacks merit. First, those records were not in the custody of the Commonwealth. See Commonwealth v. Nelson, 90 Mass. App. Ct. 594, 596 (2016) (for a Brady violation to occur, "material information [must be] in the possession of the prosecutor"). Second, we addressed the issue of disclosure of allegedly exculpatory information in Brace II, supra. There was no substantial risk of a miscarriage of justice.

Under these circumstances, we discern no abuse of discretion and no reason to disturb the order denying the motion to reconsider the denial of the defendant's third motion for new trial. See Commonwealth v. Weichell, 446 Mass. 785, 799 (2006), quoting from Commonwealth v. Grace, 397 Mass. 303, 307 (1986) (denial of motion for new trial reviewed only for "a significant error of law or other abuse of discretion").

Order denying motion to reconsider affirmed.

      On count one, the defendant received a sentence of six years and three months to eight years in State prison. On count two, he received a suspended sentence of ten to fifteen years in State prison and was placed on probation for five years under certain conditions (drug and alcohol treatment, sex offender evaluation and treatment, and no contact with victim).

      The defendant also filed a motion to reconsider that denial, which was also denied.

      With respect to the revocation of probation, the defendant maintains that a District Court jury, in a separate subsequent trial, found him not guilty of indecent exposure (a lesser included offence of open and gross lewdness, which had been the basis of the revocation of his probation). That argument is without merit because "[t]he standard of proof in a probation revocation proceeding is the civil standard of preponderance of the evidence rather than the criminal standard of beyond a reasonable doubt." Commonwealth v. Hill, 52 Mass. App. Ct. 147, 154 (2001).

      For example, the judge told the defendant that he had "an absolute right to a trial, to the fairest trial that [the judge] can preside over," and explained to the defendant the choice he had (to go to trial or to plead guilty) and the consequences of that choice, underscoring that the defendant "[had] got[ten] to decide what [was] best for [him]."

      In his brief, the defendant asserts that he wrote the letter so that he could be released from prison and spend time with his mother, who had terminal cancer.

      As to the other arguments raised by the defendant on appeal, "they 'have not been overlooked. We find nothing in them that requires discussion.' " Department of Rev. v. Ryan R., 62 Mass. App. Ct. 380, 389 (2004), quoting from Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).


text:
    KAREN KING LEFF & another v. Deborah KING.
    17-P-633
    Appeals Court of Massachusetts.
    Entered: June 27, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Peter R. King.

   Background. Karen King Leff (Karen) appeals from an order of the Probate and Family Court mandating the sale of a "house lot" she owned together with her brother, Peter R. King (Peter), and her sister, appellee Deborah King (Deborah), and from the final decree on a petition for partition of that property. Karen also purports to appeal from an order of that same court denying her cross motion for summary judgment, and granting Deborah's, in a related breach of contract action. The facts are, for the most part, undisputed.

The parties owned together two pieces of real property. One, the house lot, was a residential dwelling in Montgomery. The other, the "wood lot," was a landlocked fifteen-acre parcel of land, also in Montgomery. On November 26, 2012, the parties executed a contract to dispose of both lots.

The contract provided as follows. Deborah would select a broker to list the lots within thirty days, with the house lot at an initial sales price of $275,000 and the wood lot at $42,500. The siblings would share equally in the proceeds. Deborah's contract with the broker would contain terms that the parties to the agreement would be "excepted from the broker's commission" and that the broker would receive no commission if one of the parties purchased the property. If the broker could not secure a sales price of at least $215,000, then Karen, Peter, or both would have the option to purchase the property for $201,000. The contract also provided that the parties "shall accept" offers within ten percent of the listed sales price, provided there were no further costs to the estate.

On May 28, 2013, Deborah informed Karen and Peter that the house lot had been listed. This listing was for $265,000, but Karen and Peter did not know at the time that the property had been listed at a reduced price from that specified in the parties' contract. Deborah's contract with the broker did not include the required terms restricting the broker's commission. An offer for $255,000 was made on June 27, 2013, and expired on July 1. Karen and Peter were not aware of the offer until after it expired. They then learned that the house lot had not been listed for the agreed-upon price and so informed Deborah, who then relisted it for $275,000. After the relisting, another offer was made, this time for $260,000, which also expired before Karen and Peter received it. A final offer, also for $260,000, was made, which Karen and Peter rejected because they believed that Deborah had breached their contract and that they were therefore entitled to buy her out for one-third of $201,000.

Karen and Peter then brought an action in Probate and Family Court on November 24, 2014 (2014 action). The complaint sought both damages and specific performance of the contract and partition of the wood lot, which had not sold. Eventually the parties filed cross motions for summary judgment. Immediately after the hearing on these motions, at the suggestion of the court, the parties' counsel signed a stipulation according to which Deborah would file a petition for partition of the house lot and that the cross motions "shall be considered and apply as to that Petition as well as the current Petition/Complaint."

Shortly thereafter, Deborah filed a petition for partition that recited a minimum sales price of $255,000 (2016 action). The next day, the court decided the cross motions for summary judgment in favor of Deborah, holding that her initial listing of the property at $265,000 was not a material breach. The plaintiffs appealed from the order, but this court dismissed the appeal as premature because the petition to partition the wood lot had not been resolved, and consequently there was no final judgment.

At a hearing on October 11, 2016, Peter, through his counsel, made an oral offer to purchase the house lot for $242,250, which is equal to the minimum sales price of $255,000, recited in the petition for partition, less a five percent realtor's commission. Karen was not present at that hearing. Following another hearing, in an order dated November 7, 2016, the court issued an "Order to Sell" the house lot to Peter for $242,250. This order was entered on the dockets of both the 2014 and 2016 actions, and Karen filed timely notices of appeal from the order in both actions. The records of these appeals have been assembled and are before us. After Karen filed her notices of appeal, Peter purchased the house lot, the deed was recorded, and the court entered a final decree on petition for partition of the house lot in the 2016 action. Karen also has appealed from this decree.

Discussion. Because final judgment has not entered in the 2014 action, we may consider only those issues properly appealed in the 2016 action. This includes the order to sell. In addition, the parties stipulated that the summary judgment order in the 2014 action would apply to the 2016 action. The docket sheet in the 2016 action does not refer to the stipulation or the summary judgment order, so we cannot be certain that the summary judgment order applies to it. Nonetheless, since the parties and the judge agreed that it would, we will assume so and consider that order as well, to which we turn first.

On the merits, Karen's appeal from this order is insubstantial. At oral argument, Karen's counsel represented that Karen is seeking specific performance of the contract, which she interprets to mean that Deborah should be ordered to sell the house lot to her, and perhaps also Peter, for $201,000. But the contract by its plain terms does not entitle her to this. The contract says that, if the broker were to receive no offers above $215,000, then Karen and/or Peter would acquire the option to buy Deborah out of her share of the house for her share of $201,000. Even assuming there was a breach of the contract by Deborah, the contract does not say that this option would arise in the event of such a breach. And the parties stipulated that Karen and Peter rejected an offer of $260,000, which rendered the $201,000 clause inoperative because this offer was for greater than $215,000.

Karen also argues that she is entitled to damages resulting from Deborah's delay in listing the house lot, her initial listing of the property at $265,000 instead of $275,000, and her failure to include terms in her agreement with the broker that restricted the broker's commission. Since the broker never sold the house, Karen was not harmed by Deborah's failure to negotiate a contract with a broker that denied the broker a commission. And, because there were no offers at or above $265,000, and the house had not been sold before the complaint was filed, it would have been impossible for Karen to demonstrate any damages from either the delayed listing or the initial listing for $265,000.

Finally, Karen objects to the November 7 order to sell, claiming that the sales price is without an evidentiary basis, that the order violates the Statute of Frauds, and that she did not agree to the sale. "An issue not raised or argued below may not be argued for the first time on appeal." Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006) (quotation omitted). After carefully reviewing the record, we conclude that none of these arguments were made below: Karen's only objections below were that the petition was not noticed in the registry of deeds as required by G. L. c. 241, § 7, that the order to sell improperly deducted an expense of $141 for liability insurance taken out by Deborah, and that the net sale proceeds should be held in escrow until the ultimate resolution of the appeal that had recently been dismissed. Karen does not raise these arguments on appeal, and there is nothing in the record to indicate that Karen objected to the sale itself before the Probate and Family Court. Her arguments are therefore waived.

Finally, with respect to the final decree on the petition for partition, Karen argues only that she did not receive notice of the time and place of the sale as required by the statute, G. L. c. 241, § 12, and that, therefore, the partition should be vacated and the final decree reversed. Because this argument was not raised in the trial court, however, it is waived. The sale was completed and the deed recorded just minutes before a hearing commenced on Karen's motion to stay the sale. Karen also argues that this was improper. To the extent this claim is properly before us, however, it, too, has been waived. Karen made no such argument below, and at the hearing itself, upon receiving a report of the recording of the deed, the position of counsel for Karen was not that the recordation or sale should be undone, but that the application for stay was moot.

Conclusion. The order to sell entered in the 2014 and 2016 actions, the final decree on the petition for partition entered in the 2016 action, and the summary judgment order entered in the 2014 action are affirmed.

So ordered.

Affirmed

      Peter was Karen's coplaintiff in the breach of contract action and coobjector in the partition action but did not participate in the appeal.

      The 2014 and 2016 actions were consolidated below.

      Karen argues that the Probate and Family Court lacked jurisdiction over the breach of contract claim. Were this argument properly before us, we would hold that it is incorrect. General Laws c. 215, § 6, grants the Probate and Family Court general equity jurisdiction, which includes actions for specific performance of contracts. Compare G. L. c. 185, § 1(k ) (Land Court has jurisdiction over "[a]ll cases and matters cognizable under the general principles of equity jurisprudence where any right, title or interest in land is involved, including actions for specific performance of contracts"). In its order on the cross motions for summary judgment, the court concluded that it had jurisdiction because the breach of contract count is "only a specific performance request." We agree in light of our conclusion that it would be impossible for Karen to prove damages arising from a sale that had not yet occurred.

      Given our conclusion that there is no merit to her appeal from the order on the cross motions for summary judgment, any complaint she might have had about holding the sale proceeds in escrow would, in any event, be moot.


text:
    COMMONWEALTH v. Robinson TEJEDA.
    17-P-573
    Appeals Court of Massachusetts.
    Entered: June 26, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Acting on a motion to revise and revoke a sentence under Mass.R.Crim.P. 29(a), a Superior Court judge reduced the defendant's sentence for armed robbery from six to eight years, to five to seven years. The principal basis for the judge's decision was that after she had imposed the six- to eight-year sentence, the defendant's coventurer, who had been separately tried before a different judge, had received a five- to seven-year sentence with respect to the same armed robbery. Because in doing so the judge ran afoul of Supreme Judicial Court precedent by improperly basing the decision on a postsentencing event, we vacate the order and remand the matter for further consideration consistent with this memorandum and order.

1. Background. In 2012, Robinson Tejeda participated in an armed robbery that went awry, and during which one of his coventurers was shot and killed. The details of the crime are set forth in Commonwealth v. Tejeda, 473 Mass. 269, 270 (2015). For present purposes, it is material that the defendant remained outside in a vehicle while his coventurers, Stephen Etienne and Christopher Pichardo, entered a building to meet a drug dealer. Ibid. During the ensuing armed robbery of the drug dealer, Etienne attempted a distraction and thereafter Pichardo was shot, and later died. Ibid.

In March, 2014, a Superior Court jury convicted the defendant of murder in the second degree on the theory of felony-murder, in violation of G. L. c. 265, § 1 ; armed robbery, in violation of G. L. c. 265, § 17 ; home invasion, in violation of G. L. c. 265, § 18C ; and possession with intent to distribute a class D controlled substance (marijuana), in violation of G. L. c. 94C, § 32C(a ). See Tejeda, 473 Mass. at 270-271. The trial judge thereafter allowed the defendant's motion for a required finding of not guilty as to the felony-murder conviction, left the remaining convictions standing, and sentenced the defendant to six to eight years in State prison on the armed robbery offense, and to three years' probation from and after the sentence for armed robbery. Id. at 271. On appeal, the Supreme Judicial Court affirmed the required finding of not guilty on the charge of murder in the second degree, but also affirmed the judgments as to the defendant's remaining convictions. Id. at 271, 281-282.

On January 27, 2016, the defendant filed a timely motion to revise or revoke his six- to eight-year sentence, pursuant to Mass.R.Crim.P. 29(a), 378 Mass. 899 (1979). The motion was succinct, and was not accompanied by an affidavit. The defendant argued principally that the sentence was unjust because, when compared to his coventurers, the defendant had the least involvement in the criminal acts, and because his coventurer Etienne, who had a greater role in the armed robbery and (allegedly) a more serious criminal history, received a less severe sentence of five to seven years on his armed robbery charge. Etienne had been tried before a different Superior Court judge, and was sentenced after the defendant.

The judge allowed the motion, and reduced the defendant's sentence to five to seven years. The judge reasoned:

"I think it's a fairly straightforward issue. You know, frankly I think there's a real value to treating like cases alike as much as possible. It's hard sometimes to decide if cases are exactly alike. There's differences in criminal records, there's different facts or different levels of involvement. When it comes down to it, however, if I had Mr. Tejeda here and was sentencing him at the same time as Mr. Etienne, if they had been tried together, then I would have imposed the same sentence."

The Commonwealth appeals.

2. Discussion. We review the disposition of a motion to revise or revoke a sentence for abuse of discretion. Commonwealth v. Malick, 86 Mass. App. Ct. 174, 185 (2014), citing Commonwealth v. Derry, 26 Mass. App. Ct. 10, 13 (1988). Though the power to revise or revoke is "severely limited," Commonwealth v. Jackson, 80 Mass. App. Ct. 528, 533 (2011), a judge may revise or revoke a sentence if it appears that "justice may not have been done." Mass.R.Crim.P. 29(a).

On appeal, the Commonwealth raises two issues. The Commonwealth argues first that the defendant's rule 29 motion should have been denied because it was not accompanied by an affidavit. The Commonwealth cites Mass.R.Crim.P. 29(b), which stated, at the time of the defendant's motion, that "[i]f a defendant files a motion pursuant to this rule, he shall file and serve and the prosecutor may file and serve affidavits in support of their respective positions." 378 Mass. 900 (1979). The Commonwealth reads this language to require the denial of any rule 29 motion not accompanied by an affidavit.

We cannot agree, because such a requirement would circumscribe the judge's discretion to grant rule 29 relief, and it would do so in a manner inconsistent with the rule's basic structure. Rule 29 itself contemplates that a sentence may be revised or revoked not only upon motion by the defendant, but also "upon [the judge's] own motion." In such circumstances there would be no motion from a party and no affidavit, so clearly an affidavit is not always required before rule 29 relief can be granted. And since the judge can grant such relief on her own motion, it follows that the judge cannot be prevented from granting rule 29 relief that she determines is merited, merely because the matter first came before her on a motion by the defendant without an affidavit. We accordingly read rule 29(b) as stating an enforceable requirement that movants file an affidavit, but we do not read it to prohibit the judge from considering an unaccompanied motion if she so chooses.

This understanding of the rule finds support in the case law as well; in Commonwealth v. DeJesus, 440 Mass. 147, 152 (2003), the Supreme Judicial Court stated that in order for a motion to revise or revoke to be "properly filed," the motion "must be accompanied by an affidavit, or otherwise indicate the grounds upon which [the motion] is based" (emphasis supplied). The DeJesus formulation thus explicitly contemplates that a rule 29 motion not accompanied by an affidavit can still be "properly filed." Ibid.

Here, the defendant's motion set forth the "grounds upon which it is based"-that is, that coventurer Etienne received a lesser sentence, even though Etienne "played a greater role in the offense, and ... ha[d] a more serious criminal history." There was no error in considering the motion.

The Commonwealth next challenges the judge's decision on its merits. The gist of the Commonwealth's argument is that the judge should not have relied upon the sentence imposed upon the coventurer, Etienne, because it was imposed after the defendant's sentence, and because the judge was not personally familiar with the facts adduced at Etienne's trial and sentencing.

Nothing in the language of rule 29 itself prohibits a judge from considering a defendant's claim that his sentence should be reduced because a similarly situated coventurer subsequently received a more lenient sentence. Nevertheless, the Supreme Judicial Court opinions interpreting the rule have repeatedly stated that a rule 29 evaluation is to be done "in light of the facts as they existed at the time of sentencing." Commonwealth v. McCulloch, 450 Mass. 483, 487 (2008). Commonwealth v. Rodriguez, 461 Mass. 256, 260 (2012). These cases have been taken to establish a bright-line rule, and the above language from the cases now appears in the Reporter's Notes to Rule 29. Here, Etienne's sentencing occurred after the defendant's and hence did not exist "at the time of sentencing." While no case addresses such a factual context, we are reluctant to recognize an exception to the rule stated in the case law, and hence we must conclude that the judge erred by relying on Etienne's subsequently imposed sentence. Making an exception would more appropriately be left to the Supreme Judicial Court.

At the same time, a judge entertaining a rule 29 motion has broad discretion to take a hard look at whether she believes the original sentence was, in hindsight, too strict. Commonwealth v. McCulloch, supra. That evaluation is subject to the sentencing judge's sound discretion, and as discussed above, the judge can address whether to revise or revoke a sentence sua sponte. Having read the judge's comments at the hearing, we are unclear whether she still would reduce the original sentence even though she could not do so based on the sentence subsequently given to a coventurer. We therefore vacate the judge's ruling on the motion and remand this matter for reconsideration of that motion, and the defendant's sentence, in light of this memorandum and order.

So ordered.

Vacated and remanded

      At the time the defendant filed his motion, rule 29(a) stated: "The trial judge upon his [or her] own motion or the written motion of a defendant filed within sixty days after the imposition of a sentence, [or] within sixty days after receipt by the trial court of a rescript issued upon affirmance of the judgment or dismissal of the appeal, ... may upon such terms and conditions as he [or she] shall order, revise or revoke such sentence if it appears that justice may not have been done."

      This language was revised in 2016, after the defendant's rule 29 motion; the revisions are not material for present purposes.

      Moreover, our cases establish that the sentences given to codefendants ordinarily are a valid consideration for rule 29 purposes. Commonwealth v. Derry, 26 Mass. App. Ct. 10, 13 (1988) (sentencing judge can consider disparity among codefendants' sentences "as one (but not the only) important consideration in revoking the defendant's sentence and revising it."


text:
    Timothy BRALEY v. William BATES.
    17-P-533
    Appeals Court of Massachusetts.
    Entered: June 29, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The plaintiff, Timothy Braley, brought this declaratory judgment action pursuant to G. L. c. 231A, seeking (i) a judgment that the defendant, William Bates, the food service director at the Massachusetts Correctional Institute at Norfolk, violated 103 DOC 760.04(1)(2) and 103 DOC 760.05(2) by substituting meals and changing recipes on the inmate meal menu in violation of the Department of Correction (DOC) substitution guidelines; and (ii) an order permanently enjoining the defendant from further violations. The motion judge allowed the defendant's motion to dismiss on the grounds that the plaintiff failed to exhaust all available administrative remedies, and that the plaintiff did not have a private right of action to challenge the defendant's alleged violation of DOC policies. We reverse.

Discussion. In reviewing the allowance of a motion to dismiss, we accept as true the allegations in the complaint and draw every inference in favor of the nonmovant. See Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). We review the motion judge's decision de novo. See ibid.

Here, we are constrained by prior case law to reverse the motion judge's dismissal of the plaintiff's complaint. To begin, as the defendant apparently concedes, the plaintiff was not required to exhaust all available administrative remedies before bringing his complaint because, pursuant to G. L. c. 127, § 38F, a court may consider an inmate's nonexhausted "action[ ] seeking equitable relief." See Grady v. Commissioner of Correction, 83 Mass. App. Ct. 126, 137 n.9 (2013) ("[I]f Grady had set forth a sufficient showing for declaratory judgment, which is an equitable remedy, then he need not have waited until a final agency action before filing suit in Superior Court").

On appeal, the defendant maintains that the challenged regulations provide the plaintiff no independent private right of action. The cases cited by the defendant, however, stand only for the proposition that a private right to bring a claim for damages cannot be inferred from DOC regulations. See, e.g., Martino v. Hogan, 37 Mass. App. Ct. 710, 720 (1994) (DOC regulations cannot "be fairly read as in themselves establishing a rule of personal liability of officials in case of breach"). Here, the plaintiff seeks only equitable relief. See Royce v. Commissioner of Correction, 390 Mass. 425, 426 n.3 (1983) (holding that plaintiff's claim that DOC was violating DOC regulations "properly stated a claim for declaratory relief"); Ivey v. Commissioner of Correction, 88 Mass. App. Ct. 18, 22 (2015) ("Because they allege that the policy violates DOC regulations, the plaintiffs properly brought this action under the declaratory judgment act"). See also G. L. c. 231A, § 2, as amended by St. 1974, c. 630, § 1 (declaratory judgment "may be used in the superior court to enjoin and to obtain a determination of the legality of the administrative practices and procedures of any ... state agency or official which practices or procedures are alleged to be in violation of ... rules or regulations promulgated under the authority of such laws").

The defendant finally contends that we can affirm the dismissal on the alternative ground that the plaintiff failed to sufficiently allege a violation of 103 DOC 760.05(2) because it allows the DOC to make substitutions and alterations to the inmate meal menu. This argument does not address the second half of 103 DOC 760.05(2), which requires the DOC to "ensur[e] that the substitution is in accordance with the approved departmental substitution guidelines." The plaintiff alleges in his complaint that the DOC does not have substitution guidelines. Accepting this allegation as true, see Herb Chambers I-95, Inc., 458 Mass. at 676, the defendant has failed to show that the plaintiff has not sufficiently alleged a violation of 103 DOC 760.05(2). Accordingly, while we take no position on the ultimate merits of the plaintiff's claim regarding the alleged violations, the motion to dismiss should not have been allowed. See Royce, 390 Mass. at 430.

Judgment reversed.

      For purposes of its motion to dismiss, the defendant makes no argument that 103 DOC 760.04(1)(2) and 103 DOC 760.05(2) are not regulations and, for that reason, are not enforceable by a lawsuit seeking a declaratory judgment and an injunction. Thus, we do not reach that question.

      The other case cited by the defendant, Loffredo v. Center for Addictive Behaviors, 426 Mass. 541 (1998), concerns the Massachusetts regulatory scheme governing methadone treatment programs, and thus, fails to support the defendant's argument regarding the challenged DOC regulations here.

      103 DOC 760.05(2) requires that the DOC "[r]ecord[ ] any substitution(s) or addition(s) in food actually served, ensuring that the substitution is in accordance with the approved departmental substitution guidelines."


text:
    COMMONWEALTH v. Anthony D. BATES.
    17-P-955
    Appeals Court of Massachusetts.
    Entered: June 29, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Anthony D. Bates, appeals from his conviction in the District Court of assault and battery on a family or household member, pursuant to G. L. c. 265, § 13M(a ). The defendant pursues two arguments on appeal: (1) the trial judge erred in allowing evidence of the defendant's prior bad acts, which included photographs of the victim from a previous alleged altercation with the defendant, and (2) the trial judge erred in declaring the defendant's grandmother to be a hostile witness and allowing the Commonwealth to lead and impeach her. We affirm.

Background. The jury could have found the following facts. In 2015, the defendant was dating the victim. While visiting the defendant's grandmother on November 8, 2015, the victim and the defendant started arguing about the defendant allegedly cheating on the victim with another woman. As the argument continued and the victim began yelling at the defendant, the defendant grabbed the victim by her arms and threw her against a television stand. The victim got up and yelled at the defendant to "get out of [her] life." The defendant threw the victim to the floor again and punched her "more than 20 times." The victim attempted to call the police but the defendant grabbed the telephone and told the victim that she was "not calling nobody." The defendant left the apartment and an upstairs neighbor called the police. The defendant turned himself in to the police later that evening.

Discussion. A. Prior bad acts evidence. The Commonwealth moved in limine to admit evidence of eight prior incidents of the defendant's physical abuse of the victim. The Commonwealth argued that these alleged prior acts help show the nature of the relationship between the defendant and the victim, and negate any self-defense claim. The judge granted the motion in part, allowing the Commonwealth to introduce five of the alleged prior bad acts, including a photograph, through the victim's testimony. The defendant maintains that the judge erred in admitting such evidence because the evidence was unfairly prejudicial.

"Evidence of prior bad acts is not admissible to show a defendant's bad character or propensity to commit the charged crime, but may be admissible if relevant for other purposes such as common scheme, pattern of operation, identity, intent, or motive." Commonwealth v. Oberle, 476 Mass. 539, 550 (2017). The judge must determine whether the probative value of the evidence outweighs any undue prejudice to the defendant. See Mass. G. Evid. § 403 (2018). "Determinations of the relevance, probative value, and prejudice of such evidence are left to the sound discretion of the judge, whose decision to admit such evidence will be upheld absent clear error." Commonwealth v. Robidoux, 450 Mass. 144, 158-159 (2007).

"It is well established that in appropriate cases, a defendant's prior acts of domestic violence may be admitted for the purpose of showing a 'defendant's motive and intent and to depict the existence of a hostile relationship between the defendant and the victim.' " Oberle, supra at 550, quoting from Commonwealth v. Linton, 456 Mass. 534, 551 (2010). Here, evidence of the defendant's alleged prior acts against the victim were introduced for such purpose. Moreover, the admission of photographs "rests almost entirely in the discretion of the judge ... [and] [i]t is a 'rare instance [ ] in which the probative value of [such] evidence is [so] overwhelmed by its inflammatory potential' that reversal would be warranted' (citation omitted)." Id. at 551, quoting from Commonwealth v. Bradshaw, 385 Mass. 244, 270 (1982). While the photo here was inflammatory and showed extensive injuries to the victim's face from an alleged prior incident with the defendant, its probative value was not outweighed by unfair prejudice to the defendant. Furthermore, the judge carefully instructed the jury during the final charge that the evidence of prior acts may be considered "solely for the limited purpose of showing the nature of the relationship between the defendant and [the victim] or for the purpose of showing the state of mind of the defendant on the date of these allegations or to rebut any inference of self-defense on the part of the defendant." The judge also instructed that the jury "may not consider this evidence for any other purpose." We presume "[a] certain measure of jury sophistication," Commonwealth v. Kozec, 399 Mass. 514, 517 (1987), and that the jury will abide by the judge's instructions. See Commonwealth v. Pope, 406 Mass. 581, 588 (1990). We see no abuse of discretion in the judge's decision to allow in evidence the photograph and testimony of the defendant's alleged prior acts against the victim.

B. Hostile witness. Lastly, the defendant maintains that the judge abused his discretion in allowing the Commonwealth to treat the grandmother as a hostile witness. "The 'decision whether to allow leading questions [is] left for the most part to the wisdom and discretion of the trial judge.' " Commonwealth v. Ridge, 455 Mass. 307, 326-327 (2009), quoting from Commonwealth v. Flynn, 362 Mass. 455, 467 (1972) (citation omitted). "It is not improper to allow leading questions where a witness's testimony is evasive, ambiguous, or inconsistent." Ibid. Here, the Commonwealth called the grandmother as a witness to the November 8, 2015, incident. While the Commonwealth questioned the grandmother on the details of the incident, she continuously claimed a lack of memory. After the Commonwealth attempted to refresh the grandmother's memory using the November 8 police report, which contained statements the grandmother made to the police on the day of the incident, she continued to evade answering questions by making statements such as: "If that's what [the police report] say[s] I said then I said it" and "I can't remember what the statement said I said, whatever the statement said I said." The Commonwealth subsequently sought to declare the grandmother a hostile witness. The judge allowed the Commonwealth's request due to the grandmother's "demeanor, her testimony today and the background in this case that I am aware." The judge found that the grandmother was "feigning lack of memory with respect to the details in this case that she expects would be damaging to her grandson's case, the grandson whom she has testified she loves very much." This decision was not an abuse of discretion. The defendant's remaining claims have not been overlooked; they do not require discussion.

Judgment affirmed.

      The judge precluded three of the prior bad acts due to remoteness.


text:
    REVERE RETIREMENT BOARD v. ATTORNEY GENERAL.
    17-P-1074
    Appeals Court of Massachusetts.
    Entered: June 29, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The Revere retirement board (board) appeals from a Superior Court judgment concluding that the board violated the open meeting law, G. L. c. 30A, §§ 18 et seq., when it entered into executive session during a meeting. We affirm.

Background. On April 23, 2015, the board filed a notice that it would hold a meeting concerning the "Regular Order of Business" on April 29, 2015. A public notice was also posted outside of the board's office. The notice did not list any executive session or hearing.

On April 29, 2015, the board met in open session. A board member moved to go into executive session "to discuss legal matters with Board Counsel involving pending and/or possible future litigation." Richard Clarke, who had filed an application for accidental disability retirement benefits in 2013, and his attorney questioned whether they were being asked to leave and were told yes. The board entered executive session. After approximately forty-five minutes, the board reconvened in open session and proceeded to discuss Clarke's application. The board voted to request additional information from Clarke.

On May 1, 2015, Clarke's attorney filed a complaint with the office of the Attorney General alleging that the board violated the open meeting law by entering into executive session for an improper purpose and excluding Clarke and him from the session. The board responded that it properly entered into executive session pursuant to the "litigation exception" of G. L. c. 30A, § 21(a )(3).

The Attorney General concluded that the board violated the open meeting law, as the board discussed matters unrelated to litigation strategy; specifically, the merits of Clarke's application and advice of counsel regarding review of the application. The Attorney General ordered the board to publically release the executive session minutes. The board sought review in Superior Court through an action in the nature of certiorari. After a hearing, a judge denied the board's motion for judgment on the pleadings and allowed the Attorney General's cross motion. Judgment entered and the board appeals.

Discussion. Judicial review of a decision in a certiorari proceeding is limited. We review the administrative record to determine whether the decision was supported by substantial evidence, and whether the motion judge correctly concluded that the Attorney General committed no error of law that adversely affected the board's legal rights. See Durbin v. Selectmen of Kingston, 62 Mass. App. Ct. 1, 5-6 (2004).

The litigation exception provides, in relevant part, that "a public body may meet in executive session ... [t]o discuss strategy with respect to ... litigation if an open meeting may have a detrimental effect on the ... litigating position of the public body." G. L. c. 30A, § 21(a )(3). As the motion judge concluded in a well-reasoned decision, this exception did not apply here. The record indicates that during the executive session the board did not discuss pending or future threatened litigation or strategy, but rather it discussed the merits of Clarke's application and sought advice of counsel regarding its review of the application. See Powers v. Freetown-Lakeville Regional Sch. Dist. Comm., 392 Mass. 656, 659 (1984) (litigation exception inapplicable where no "actual" or "imminently threatened" litigation).

The board further contends that the executive session was nonetheless protected by an implied attorney-client privilege. The Supreme Judicial Court has previously considered the attorney-client privilege under the open meeting law. See District Attorney for the Plymouth Dist. v. Selectmen of Middleborough, 395 Mass. 629, 632-634 (1985). The court concluded that the open meeting law was "a statutory public waiver of any possible privilege of the public client in meetings of governmental bodies except in the narrow circumstances stated in the statute." Id. at 634. The litigation exception is one such exception, where "the Legislature contemplated the need for confidential discussion between attorneys and their public clients." Id. at 633. Given the express exceptions that exist in the statute, no other exceptions are implied. Ibid. As the Supreme Judicial Court has explicitly considered the exceptions within the open meeting law, the board's reliance on subsequent cases decided in the context of the public records statute is misplaced.

Lastly, the board argues that its proceedings are "adjudicatory proceedings" which are exempt from the open meeting law. "Adjudicatory proceeding" is defined, in relevant part, as "a proceeding before an agency in which the legal rights, duties or privileges of specifically named persons are required by constitutional right or by any provision of the General Laws to be determined after opportunity for an agency hearing" (emphasis added). G. L. c. 30A, § 1(1). However, the board concedes that a local retirement board is not an "agency" within the meaning of the statute. See Swansea v. Contributory Retirement Appeal Bd., 43 Mass. App. Ct. 402, 405 n.8 (1997), citing G. L. c. 30A, § 1(2). Furthermore, the record does not support a conclusion that the meeting or the executive session was an adjudicatory proceeding, nor did the notice of the meeting indicate an adjudicatory hearing would be held.

Judgment affirmed.

      The minutes of the executive session have been filed under seal and impounded.

      We note that District Attorney for the Plymouth Dist., supra, was decided under an earlier version of the open meeting law, G. L. c. 39, §§ 23A -23C. Both the earlier and current versions contain enumerated exceptions to the open meeting requirement, including the litigation exception.

      This conclusion does not eliminate the attorney-client privilege under the open meeting law in its entirety. See Suffolk Constr. Co. v. Division of Capital Asset Mgmt., 449 Mass. 444, 459 n.20 (2007).