text:
    Jean MURRAY v. Moira C. MURPHY & another.
    17-P-459
    Appeals Court of Massachusetts.
    Entered: April 5, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Ryan Murphy.

   According to the plaintiff's complaint, on May 17, 2011, a car driven by defendant Moira C. Murphy (defendant driver) rear-ended the plaintiff's car while it was stopped at a stoplight in the Jamaica Plain section of Boston. Alleging that the collision aggravated a preexisting medical condition and caused her to incur various medical bills, the plaintiff brought a personal injury action against the defendant driver in 2014. On the final scheduled trial date, plaintiff's counsel appeared but his client did not. A Superior Court judge dismissed the case with prejudice "for want of prosecution," even though counsel was prepared to go forward with the trial without his client present. Because we agree with the plaintiff that this was error, we reverse.

Background. Upon filing on May 16, 2014, the plaintiff's action was designated a track F case, meaning that a pretrial conference was to be scheduled within sixteen months. See Superior Court Standing Order 1-88(G)(i)(8). A final pretrial conference in fact was scheduled for December 10, 2015, with a jury trial scheduled for December 14, 2015. Those events were postponed at the request of the plaintiff, but with the defendants' assent. Trial was rescheduled for April 13, 2016, but also was postponed at the request of the plaintiff after her attorneys were allowed to withdraw. Trial was then rescheduled for May 3, 2016, but once again it was postponed at the plaintiff's request (without any opposition from the defendants). As a result, the trial was rescheduled for August 18, 2016, with the parties notified that there would be "no further continuances."

Nevertheless, on July 29, 2016, the plaintiff filed an "emergency motion to continue" the scheduled trial based on the fact that the plaintiff's daughter was due to give birth on or about the scheduled trial date, and the plaintiff wanted to attend that event to assist her daughter. That motion was denied on the day it was filed. The judge explained that the plaintiff had already requested multiple continuances and that the parties had been notified that there would be no further continuances. The judge also expressly relied on her observation that "a 9[:00 A.M. ]-1[:00 P.M. ] trial schedule over a two-day trial does not necessarily mean that the [plaintiff] will miss the birth of her grandchild."

The plaintiff filed her pretrial memorandum on August 12, 2016, and the final trial conference was held on August 16, 2016, two days before the scheduled trial. According to an affidavit submitted by plaintiff's counsel, the subject of the plaintiff's potential absence from part of the trial was discussed at the final trial conference, which was presided over by the same judge who had denied the emergency motion to continue and who eventually dismissed the complaint. Plaintiff's counsel avers that he pointed out that his client might be absent from part of the anticipated two-day trial because of the upcoming birth of her grandchild, and asked whether he could inform the jury why she was not present. Plaintiff's counsel states that the judge "agreed that if the plaintiff [were] not present, [the judge] would inform the jury that the plaintiff was not present 'for good cause.' "

On August 18, 2016, the scheduled trial date, plaintiff's counsel brought to the judge's attention that his client had reported to him the night before that her daughter had indeed gone into labor in Vermont and that the plaintiff intended to be there with her. According to the plaintiff's representations, although her daughter had planned to have the baby at home through natural childbirth, complications arose that required the daughter to be admitted to one hospital and then transferred to another hospital. With his client in Vermont to attend to her daughter, counsel filed on her behalf a "renewed emergency motion to continue trial" seeking a continuation of the trial to the following week. The motion was accompanied by a letter from a doctor stating that the daughter had been admitted to the University of Vermont Medical Center on August 17, 2016, that she faced a "high risk pregnancy," and that she "likely will deliver in the next [forty-eight hours]."

The judge denied the plaintiff's motion, explaining her decision both from the bench and later in a written memorandum of decision. She indicated that she doubted the truth of the plaintiff's claims about the timing of her daughter's pregnancy, and she noted that those claims were not supported by affidavit. She also reasoned that, in any event, "the plaintiff's presence at her grandchild's birth [was] desirable but not necessary." In light of the fact that the "emergency motion to continue" had previously been denied, the judge characterized the plaintiff's decision not to attend the opening of the trial as "flout[ing]" the judge's previous order and as "contumacious." The judge did not address any discussions that occurred at the final trial conference just two days earlier about the plaintiff potentially missing part of the contemplated two-day trial because of the anticipated birth of her grandchild.

Critically, in ruling on the plaintiff's motion, the judge did not merely deny the request for a further continuance. In addition, the judge sua sponte dismissed the plaintiff's complaint with prejudice, even though plaintiff's counsel was prepared to go forward with the trial without his client present, and he was even prepared, if need be, to conclude the trial without his client ever testifying. The dismissal turned on the judge's subsidiary conclusion that the plaintiff's testimony was necessary to prove her case. Specifically, she stated that "[t]he plaintiff would be a necessary witness at her own trial at least for the purpose of identifying herself as the operator of one of the motor vehicles involved in the subject accident." The judge further reasoned that if the trial went forward on the scheduled start date, without the plaintiff, there likely was not enough to fill up that one-half day. She also stated that if she held the trial open for the plaintiff to come the following day, this would have caused "a premature suspension of the trial [that day] and inconvenience to the jurors." Moreover, based in part on the plaintiff's blemished litigation track record that the judge gleaned from other dockets, the judge expressed her doubt that the plaintiff in fact would show up the following day. As the judge put it, she "could not credit plaintiff's counsel's assurances that his client would show up for trial [on the following day]." If the plaintiff did not show up, the judge apparently believed she would then have to direct a verdict against the plaintiff. Concerned about wasting the jury's time and court resources, the judge decided preemptively to dismiss the case.

The following week, the plaintiff filed a motion for reconsideration, which was supported by counsel's affidavit documenting the course of events. The defendants filed an opposition, and the judge summarily denied the motion "essentially for the reasons set forth in the opposition." The judge added that she "stands by [her] determination that the sanction of dismissal was warranted by the plaintiff's dilatory conduct and unreasonable requests." This appeal ensued.

Discussion. The appeal before us is a narrow one. The plaintiff does not challenge the denial of her last-minute request for a continuance. Indeed, without abandoning her position that the judge should have allowed a brief additional continuance in the circumstances presented, the plaintiff acknowledges that the judge likely acted within her considerable discretion in declining to do so. In addition, the plaintiff acknowledged at oral argument that if the trial had gone forward as scheduled and ended well before 1:00 P.M. that day, the judge would have been within her rights to bring the trial to conclusion at that point and to issue a directed verdict if the plaintiff had failed to produce sufficient proof to send the case to the jury.

What the plaintiff does challenge is the judge's refusal to give her a chance to prove her case with the evidence available to her. Although the judge stated that she was dismissing the plaintiff's case for failure to prosecute, what she effectively did was to issue a directed verdict against the plaintiff without hearing her available evidence. We agree with the plaintiff that this was improper under the facts of this case.

To be sure, the judge's impatience with the plaintiff's absence is understandable. However, there was no court order or rule of law that required that the plaintiff herself attend the trial. As the plaintiff points out, it is not even particularly unusual for the alleged injured party on whose behalf a tort action has been brought to be absent from a trial (with wrongful death actions being the most obvious example).

Of course, a plaintiff's testimony might in particular circumstances be necessary to prove her case. Thus, as a matter of proof, a plaintiff's absence might doom her case even if her presence is not legally required. The judge's on-the-fly assessment that the plaintiff could not prove her case without her own testimony is the fulcrum on which the judge's dismissal order ultimately turns.

Whether a plaintiff's available proof is sufficient to send a case to a jury generally presents nuanced questions properly addressed in a considered fashion on an appropriate and complete record. Prior to trial, the summary judgment process presents a means for addressing such questions. Mass.R.Civ.P. 56, 365 Mass. 824 (1974). Once a case has proceeded beyond that point and is set for trial, there are still some situations where a plaintiff's anticipated inability to prove her case is so obvious that a trial judge remains free to direct a verdict against her without even hearing her available proof. But the case law indicates that such cases should be rare exceptions. Thus, for example, appellate courts long strongly have cautioned trial judges against issuing directed verdicts after hearing only a plaintiff's opening. See Douglas v. Whittaker, 324 Mass. 398, 399-400 (1949) ("[T]he power to dispose of the case on the opening must be exercised cautiously[, and i]t should not be exercised until it is apparent that the plaintiff cannot supply the evidence necessary to establish [her] case"). Accord Pitts v. Wingate at Brighton, Inc., 82 Mass. App. Ct. 285, 286 (2012). Such cautions obviously are even more appropriate as to issuing directed verdicts without even allowing a plaintiff to present an opening statement.

Turning back to the particulars of the case before us, we conclude that it was far from obvious that the plaintiff would be unable to prove a case against the defendants without the plaintiff's own testimony. Counsel explained how he believed he could prove liability through his examination of the defendant driver, and could demonstrate damages through medical records provided pursuant to G. L. c. 233, § 79G. Of course, as plaintiff's counsel recognized, trying to prove the case in this manner was hardly ideal and may not ultimately have been effective in securing a favorable jury verdict. However, at the point the judge dismissed the case, the plaintiff had at least a plausible argument that she could put together a legally sufficient case for the jury's consideration even without her own testimony. For example, with regard to the one issue on which the judge focused in deeming the plaintiff's presence essential-proof that the plaintiff in fact was the occupant of the car that the defendant driver struck-it may be that plaintiff's counsel could have elicited such proof from his examination of the defendant driver. As the plaintiff put it in her brief, "[i]t was not for the court to predetermine ... what information [plaintiff's counsel] would be able to extract from [the defendant driver] during her testimony."

In closing, we emphasize our reluctance to interfere with a trial judge's management of her busy trial docket. However, "[c]alendar clearance cannot be pursued in ways that undercut the very purpose for which courts exist, to try cases on their merits and render justice in accordance with the substantial rights of parties ready for trial." Dewing v. J.B. Driscoll Ins. Agency, 30 Mass. App. Ct. 467, 472 (1991). Here, the judge effectively resolved the plaintiff's case on the merits as a matter of law without a formal record or a developed sense of what the evidence would show. We conclude that the judge's premature dismissal of the case was error, and we therefore reverse the judgment and remand this case for trial.

So ordered.

Reversed and remanded.

      The plaintiff also joined Ryan Murphy as the alleged owner of the car.

      The affidavit was submitted by the plaintiff in support of the motion to reconsider filed by plaintiff's counsel after the judge dismissed the complaint. At oral argument, we asked whether the final trial conference was recorded and, if so, why we were not provided a transcript. Plaintiff's counsel responded that he did not know whether the conference was recorded. We note that defense counsel did not file a counteraffidavit or otherwise question the averments that were made regarding the discussions at the pretrial conference. Nor did the judge question the accuracy of counsel's averments about what transpired during the final trial conference in her eventual ruling on the motion for reconsideration.

      According to plaintiff's counsel's affidavit, it was 10:15 a.m. at the point the judge dismissed the case, and it is uncontested that the trial session was scheduled to conclude that day at 1:00 p.m. The only witness that plaintiff's counsel intended to call that day was the defendant driver. The judge concluded that the defendant driver would be "a presumably very brief witness," something that the plaintiff conceded during the oral argument before us. As the plaintiff points out, however, there were four pending motions filed by the defendants that still needed to be resolved, jury selection, opening statements, and wrangling over medical records that plaintiff's counsel intended to submit in order to prove damages. Nevertheless, for purposes of this appeal, we assume that the judge was correct that had the trial gone forward, the first day's proceedings may have ended prior to 1:00 p.m.

      During the hearing, the judge initially expressed an openness to going forward with the trial and then holding it open for the plaintiff to attend the following day. She asked counsel to pass along to his client that his client would be sanctioned personally if she did not show up. Counsel reported back that his client understood that she would be sanctioned if she did not arrive the following day and that she had assured him she would be there. However, while counsel was tracking down his client, the judge unsuccessfully sought to reach the plaintiff's daughter's doctor, and researched the dockets of other cases in which the plaintiff had been involved. When the hearing renewed, the judge announced that she had a change of heart and intended to dismiss the case based on the plaintiff's absence.

      Whether a directed verdict was properly granted is a question of law. Hubert v. Melrose-Wakefield Hosp. Assn., 40 Mass. App. Ct. 172, 176 (1996). We therefore disagree with the plaintiff's position that our review is limited to whether the judge committed an abuse of discretion. In any event, we would conclude that the judge did abuse her discretion if that standard were to apply.

      Accordingly, the judge's labeling the plaintiff's decision to stay in Vermont as "contumacious" is not accurate (putting aside whether the judge had blessed the plaintiff's missing part of the trial during the final trial conference).

      The plaintiff included in the record appendix the defendants' interrogatory answers in which the defendant driver appears to have made a binding admission that the plaintiff was the occupant of the car that she struck. However, it does not appear that these interrogatory answers were provided to the judge, and therefore they are not properly part of the record on appeal. Even though the defendants never moved to strike these from the record appendix, we do not rely on them.

      We emphasize that we are not saying that the judge's assessment that the plaintiff would be unable to prove her case without testifying necessarily was incorrect. Rather, the point is that the judge was not yet in a position to draw such a conclusion.


source: Caselaw Access Project

license: Public Domain

text:
    Roney L. HARRIS v. PHH MORTGAGE CORPORATION (and a companion case ).
    17-P-71
    Appeals Court of Massachusetts.
    Entered: April 4, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      PHH Mortgage Corporation vs. BMC Mortgage Co. in MA & Roney L. Harris. We refer to this as a companion case because although the cases were consolidated below, they maintained separate dockets and not all relevant entries, including the judgments, appear in both dockets.

   This appeal is from two matters, consolidated in the Superior Court, related to a mortgage granted by Roney L. Harris on real property located at 615 White Street in Springfield (property). In his action against PHH Mortgage Corporation (PHH), Harris prevailed only on his G. L. c. 93A claim because PHH had sent him a foreclosure notice at a time when a bankruptcy court judge had already determined that PHH did not hold the subject mortgage. In its action to quiet title to the property, PHH prevailed and obtained a judgment declaring that PHH now properly holds the mortgage and the corresponding note. Harris appeals from the judgment entered in PHH's action to quiet title. We affirm.

We summarize the facts found by the trial judge after a two-day bench trial in June, 2014. In connection with his purchase of the property, Harris obtained a loan from BMC Mortgage Co. in MA (BMC). On February 13, 2004, he signed a note in the amount of $122,640 and executed a mortgage deed. On that same day, BMC executed two assignments of the mortgage-first to Mortgage Electronic Registration System, Inc. (MERS) and then to Cendant Mortgage Corporation (Cendant). On March 8, 2004, MERS assigned the mortgage to BMC. On April 12, 2004, Cendant purported to assign the mortgage to MERS. On January 25, 2005, Cendant was merged into PHH.

In 2007, Harris stopped making payments on his loan. Thereafter, he filed a bankruptcy petition under Chapter 7 of the United States Bankruptcy Code. On January 29, 2008, Harris commenced an adversary proceeding in the bankruptcy court challenging PHH's rights in connection with the subject mortgage. On May 23, 2008, MERS purported to assign the mortgage and note to PHH, effective as of January 24, 2008.

On December 30, 2008, Harris's debt on the note was discharged. On July 19, 2010, judgment entered in the adversary proceeding, stating that PHH "did not hold a valid and perfected mortgage on [the] property of the Debtor ... on the date of the commencement of this case." According to the trial judge in his amended findings and rulings, the bankruptcy court judge had found "that the mortgage assignment from BMC to Cendant (predecessor to PHH) on February 13, 2004, was invalid, because BMC had previously assigned the mortgage to MERS, so BMC had no interest to assign." In July, 2011, Harris's bankruptcy case was closed. The following month, PHH sent Harris a notice of mortgage foreclosure sale pursuant to G. L. c. 244, § 14.

On August 18, 2011, Harris filed an action in Superior Court to enjoin the impending foreclosure. On September 20, 2011, a judge issued a preliminary injunction in that matter, requiring PHH to cease and desist from proceeding with foreclosure on the property. In March, 2012, Harris amended his complaint to include additional claims against PHH, including under c. 93A.

In April, 2012, PHH filed in the Superior Court its own action against BMC, seeking to quiet its title to the property. In that action, Harris was originally named as a party in interest and eventually was named as a defendant. Harris's action and PHH's action to quiet title were consolidated in the Superior Court by order dated August 9, 2012.

On December 5, 2012, a Superior Court judge allowed, in part, Harris's "amended" motion for summary judgment on the issue of PHH's standing to proceed with a foreclosure sale. In regards to that order, the judge stated that he was not declaring that PHH would never be able to perfect standing, but only that PHH did not currently have the requisite standing to proceed under G. L. c. 244, § 14. On April 10, 2013, BMC executed an assignment of the mortgage to PHH.

After the trial in Superior Court, the trial judge held that PHH had proved "that it is now the holder of the Note and Mortgage," and judgment entered for PHH on its quiet title action. As to Harris's action, based on the trial judge's findings that PHH committed a knowing and wilful violation of c. 93A, judgment entered for Harris solely on his c. 93A claim, awarding him nominal damages, which were doubled, and his remaining claims were dismissed.

Discussion. As the trial judge correctly stated, the discharge of a debt in bankruptcy only extinguishes the creditor's right to proceed against the debtor personally. See Christakis v. Jeanne D'Arc Credit Union, 471 Mass. 365, 367 (2015) (Christakis ), quoting from Johnson v. Home State Bank, 501 U.S. 78, 84 (1991) ("Essentially, 'a bankruptcy discharge extinguishes only one mode of enforcing a claim-namely, an action against the debtor in personam-while leaving intact another-namely, an action against the debtor in rem' "). It does not prevent the creditor from proceeding against the real estate that serves as collateral for the discharged loan. Christakis, supra at 367-368.

To be sure, as stated by the trial judge, the purported assignments by BMC to Cendant and then by Cendant to MERS were invalid because BMC had already assigned the mortgage to MERS before it purported to assign that same mortgage to Cendant. See Bongaards v. Millen, 55 Mass. App. Ct. 51, 55 (2002) (subsequent deed a nullity where title previously conveyed by grantor to different grantee). MERS validly assigned the mortgage back to BMC on March 8, 2004. But MERS's subsequent assignment of the mortgage to PHH on May 23, 2008, was then invalid because MERS had nothing to assign at the time. See ibid.

Accordingly, as of 2013, the mortgage was held by BMC, with the last valid assignment being the one from MERS to BMC on March 8, 2004. The trial judge correctly held, based on the April 10, 2013, assignment from BMC to PHH, that PHH was the lawful owner of the mortgage as of the time of trial. ,

Judgment entered October 21, 2015, affirmed.

Corrected judgment entered November 19, 2015, affirmed.

Order entered October 25, 2015, denying motion for reconsideration affirmed.

Order entered December 3, 2015, denying motion to dismiss affirmed.

Orders entered December 9, 2015, denying motions to dismiss, to rescind, and to reconsider affirmed.

      Harris's notice of appeal also states that he appeals from the judgment entered in his action filed against PHH, claiming, in part, that the trial judge failed to assess more than nominal damages on his c. 93A claim, as well as appeals from various orders. However, we find no discussion of this judgment, or the orders, in his brief that rises to the level of proper appellate argument. Accordingly, we do not reach those issues. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975); K.A. v. T.R., 86 Mass. App. Ct. 554, 567 (2014) (terse and conclusory assertions that do not "rise to the level of reasoned appellate argument as contemplated by Mass.R.A.P. 16 [a][4]" not considered by appellate court).

      The trial judge found that on February 13, 2004, BMC first assigned the mortgage to MERS and thereafter assigned it to Cendant. This timing cannot be verified from documents in the record, but the documents do reveal that the assignment to MERS was recorded on February 13, 2004, while the assignment to Cendant was not recorded until June 28, 2004.

      Only the bankruptcy court judgment is in the record. If the bankruptcy court judge issued separate findings and rulings, they are not before us. A portion of the transcript from the adversary proceeding is, however, included. This excerpt shows that counsel for PHH requested that the judgment entered in the adversary proceeding not exclude PHH's ability to obtain a corrective assignment in the future. In reply, the judge stated, "[T]hat's an advisory opinion and I, I don't do those. All I can tell you is that as of the date of the filing of the case PHH is, that, that PHH does not have an allowed secured claim." Harris seems to argue that the bankruptcy court judge determined that the mortgage was not a "perfected lien." The record presented on appeal is not sufficient to allow this panel to determine whether he made this argument at trial, although it is referenced in a letter Harris sent to the lower court and in his c. 93A demand letter. In any event, the bankruptcy court judgment does not suggest that any determination was made as to the validity of the mortgage itself. That judgment merely states that "PHH ... did not hold a valid and perfected mortgage" as of the commencement of the action. This does not mean that no such lien existed-it only means that PHH was not the holder of that lien at the relevant time.

      According to the trial judge, the claims in Harris's amended complaint include intentional infliction of emotional distress, libel, quiet title, and abuse of process.

      The trial judge also held that PHH was the holder of the note. Harris states in his reply brief that the indorsements on the note indicate that BMC indorsed the note as payable to Wachovia Mortgage Corporation and then crossed out that indorsement and indorsed it as payable to Cendant, which then indorsed the note in blank. Harris does not, however, explain the significance of the first indorsement. The record also does not disclose whether Harris raised this issue at the trial. See Shawmut Community Bank, N.A. v. Zagami, 30 Mass. App. Ct. 371, 372-373 (1991), S.C., 411 Mass. 807, 810-812 (1992) (obligation of appellant to include transcripts sufficient to determine whether issue raised on appeal was properly presented and preserved); Cameron v. Carelli, 39 Mass. App. Ct. 81, 84 (1995). Accordingly, we see no basis in the record before us for displacing the trial judge's determination that PHH is the holder of the note. Additionally, to the extent Harris challenges the trial judge's factual determination that PHH has physical possession of the note, he has not demonstrated that this factual finding is "clearly erroneous." Mass.R.Civ.P. 52(a), as amended, 423 Mass. 1402 (1996). See N-Tek Constr. Servs., Inc. v. Hartford Fire Ins. Co., 89 Mass. App. Ct. 186, 190 (2016).

      To the extent Harris has made other arguments that are not addressed here, 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) (quotation omitted).


text:
    W.R.S. v. R.S. & others.
    17-P-88
    Appeals Court of Massachusetts.
    Entered: April 4, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      B.S., A.S., and M.S.

   The plaintiff appeals from a judgment dismissing his ten-count amended complaint against his parents and siblings. As to all counts, the judge allowed the defendants' motion to dismiss pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), and dismissed the plaintiff's abuse of process claim (count eight of the amended complaint) on the basis also of the anti-SLAPP statute, G. L. c. 231, § 59H ( § 59H ). We affirm in part and vacate the judgment in part.

Background. This case comes to us on appeal from the judge's allowance of the defendants' motion to dismiss. Accordingly, on review, we take all allegations in the amended complaint, and inferences drawn from them in the plaintiff's favor, as true. Bayless v. TTS Trio Corp., 474 Mass. 215, 223 n.13 (2016).

The plaintiff alleges that as a forty-one year old disabled adult, he moved into his parents' home due to his severe medical issues. The living arrangement was inharmonious.

The plaintiff alleges that his family harassed, ridiculed, ignored, and belittled him. He also alleges that, over a ten-day period, his mother moved out of the house and his father conducted a campaign of harassment and mistreatment aimed at forcing the plaintiff from the home. The father eventually obtained a harassment prevention order (HPO) pursuant to G. L. c. 258E, which forms the basis for the plaintiff's abuse of process claim.

Discussion. 1. Abuse of process. The father obtained a temporary HPO on February 23, 2015, and police removed the plaintiff from the family home later that day. After much litigation, including two appeals to this court, the father obtained a permanent HPO. The plaintiff alleges that the father abused this process by committing perjury, using the HPO to illegally evict him by circumventing Housing Court procedures, and injuring him by forcing him into a hotel without all of his medication and inflicting reputational damage. In dismissing this claim, the judge relied on rule 12(b)(6) and § 59H.

a. Rule 12(b)(6). The judge found that the plaintiff was collaterally estopped from bringing his abuse of process claim because he had the opportunity to litigate these issues when contesting the HPO. See Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 679 n.8 (2011) (dismissal pursuant to rule 12 [b][6] appropriate in cases of collateral estoppel). During the pendency of this appeal, a panel of this court determined that the acts forming the basis of the HPO constituted not only civil harassment, but also criminal harassment. See R.S. v. W.R.S., 92 Mass. App. Ct. 1110 (2017). Given this determination, the plaintiff's abuse of process claim was properly dismissed under rule 12(b)(6). See Fabre v. Walton, 436 Mass. 517, 524-525 (2002).

b. Section 59H. The judge also allowed the defendants' special motion to dismiss the abuse of process claim pursuant to § 59H, applying the framework set forth in Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156 (1998).

The judge properly found that the plaintiff's abuse of process claim was based solely on the defendants' protected petitioning activity. However, we must remand for a determination under the augmented Duracraft framework announced in Blanchard v. Steward Carney Hosp., 477 Mass. 141 (2017). Under Blanchard, if the underlying plaintiff is unable to establish that the defendants' petitioning lacked a reasonable basis, the plaintiff may avoid dismissal under § 59H by showing that the underlying claim was brought "not to interfere with and burden defendants' ... petition rights, but to seek damages for the personal harm to [the plaintiff] from [the] defendants' alleged ... [legally transgressive] acts." Id. at 160, quoting from Sandholm v. Kuecker, 2012 IL 111443, ¶ 57. Although Blanchard came down after the order of dismissal in this case, it applies retroactively. Dever v. Ward, 92 Mass. App. Ct. 175, 183 (2017). The proper course in this case is to vacate that portion of the judgment of dismissal that relies on § 59H, and to remand for further proceedings under the augmented Duracraft framework. See id. at 184.

2. Other counts. The judge dismissed the plaintiff's other counts under rule 12(b)(6). "To survive a motion to dismiss, the facts alleged and the reasonable inferences drawn therefrom must 'plausibly suggest ... an entitlement to relief.' " Arsenault v. Bhattacharya, 89 Mass. App. Ct. 804, 809 (2016), quoting from Coghlin Elec. Contractors, Inc. v. Gilbane Bldg. Co., 472 Mass. 549, 554 (2015). Although our review is de novo, Curtis, 458 Mass. at 676, here, we agree with the judge's rulings as to each of the additional claims.

a. Negligence claims. We agree with the judge that the plaintiff's claims for negligence, gross negligence, and negligent infliction of emotional distress fail because the plaintiff failed to establish that any of the defendants owed him a cognizable legal duty. See Davis v. Westwood Group, 420 Mass. 739, 742 (1995) ("Before liability for negligence can be imposed, there must first be a legal duty owed by the defendant to the plaintiff"). Furthermore, contrary to the plaintiff's assertions, the defendants did not owe him a duty to act simply because they were family. See Pridgen v. Boston Hous. Authy., 364 Mass. 696, 710 (1974), citing Restatement (Second) of Torts § 314A (1965) (duty to act only arises in specific special relationships, such as "parent and [minor] child").

The plaintiff's proof of the existence of a landlord-tenant relationship is also deficient. In the absence of a lease, the proof needed to establish a tenancy at will. Tenancies at will are created upon the consent of both parties. Corcoran Mgmt. Co. v. Withers, 24 Mass. App. Ct. 736, 742 (1987). Here, the undisputed proof established that the plaintiff's parents "intentionally refused [the p]laintiff's offer to pay for rent." Therefore, the plaintiff did not establish a tenancy.

Further, because none of the negligence claims survives dismissal, the judge also properly dismissed the plaintiff's claim for negligent infliction of emotional distress. See Payton v. Abbott Labs, 386 Mass. 540, 557 (1982) ("[I]n order to recover for negligently inflicted emotional distress [the plaintiff] must prove ... negligence").

b. Intentional infliction of emotional distress. We likewise are not persuaded that the plaintiff established a claim for intentional infliction of emotional distress (intentional infliction). Polay v. McMahon, 468 Mass. 379, 385 (2014). Liability for intentional infliction attaches only "where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Foley v. Polaroid Corp., 400 Mass. 82, 99 (1987), quoting from Restatement (Second) of Torts § 46 comment d (1965). "[M]ere insults, indignities, threats, annoyances, petty oppressions, or other trivialities," as are alleged here, do not give rise to liability for intentional infliction. Ibid. The plaintiff's intentional infliction claim also fails because he was an adult with his own income who could have left the purported abusive environment any time he pleased. Cf. Ziemba v. Fo'cs'le, Inc., 19 Mass. App. Ct. 484, 489-490 (1985) (court did not find intentional infliction where plaintiffs were threatened with arrest if they did not leave an eating establishment, but chose not to leave).

c. Conversion. The plaintiff's claim for conversion, relating to the possessions that remained in the house from the time of his removal on February 23, 2015, until the time the Housing Court gave him an order for their retrieval also does not lie because the plaintiff has failed to show that his parents "intentionally or wrongfully exercise[d] acts of ownership, control or dominion" over his possessions during that time. See ZVI Constr. Co., LLC v. Levy, 90 Mass. App. Ct. 412, 419 (2016), quoting from Grand Pac. Fin. Corp. v. Brauer, 57 Mass. App. Ct. 407, 412 (2003) (defining elements of conversion).

d. Discrimination. Pursuant to G. L. c. 151B, § 9, the plaintiff alleges that the defendants discriminated against him because of his handicap. However, the statute excludes from its reach the leasing of "a single dwelling unit in a two family dwelling, the other occupancy unit of which is occupied by the owner as his residence." G. L. c. 151B, § 4(11)(3), inserted by St. 1983, c. 628, § 3. In addition to having failed to establish the existence of a tenancy, the plaintiff's claim fails because it does not fall within the scope of the statute. Because the plaintiff has not identified a civil right that the defendants violated, the plaintiff's claim under G. L. c. 12, § 11I, alleging violations of his civil rights, also fails.

e. Fraudulent concealment/misrepresentation. Fraudulent concealment refers to the concealment of, or, in cases of fiduciary duty, failure to disclose "the facts that would give rise to knowledge of a cause of action." Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 519 (1997). We disagree with the plaintiff's assertion that the father's failure to report the plaintiff's disability to police or his alleged misrepresentation to a judge concerning the nature of a Facebook post are facts that give rise to knowledge of a cause of action. We perceive no error. See Welch v. Barach, 84 Mass. App. Ct. 113, 120 n.11 (2013) (the action lies where there is an "intentional or reckless ... misstatement ... of an existing fact ... of a material nature, ... causing intended reasonable reliance and ... financial harm to the plaintiff").

f. Civil conspiracy. There are two ways to prove civil conspiracy. See Kurker v. Hill, 44 Mass. App. Ct. 184, 188 (1998). "[A] plaintiff must show [either] that two or more defendants acted in concert, and that 'there was some peculiar power of coercion of the plaintiff possessed by the defendants in combination which any individual standing in a like relation to the plaintiff would not have had,' " Wodinsky v. Kettenbach, 86 Mass. App. Ct. 825, 837 (2015), quoting from DesLauries v. Shea, 300 Mass 30, 33 (1938), or that the defendants engaged in a common tortious plan. Kurker, supra at 188-189. The plaintiff's claim does not survive under either theory. The amended complaint fails to allege facts supporting an inference that the defendants acted in concert to create a peculiar power of coercion that they would not have had as individuals, and, further, because no tortious claim involving all of the defendants survives dismissal, there is also no underlying tort upon which the conspiracy could lie. See id. at 188.

Conclusion. So much of the judgment as dismisses count eight of the amended complaint pursuant to G. L. c. 231, § 59H, is vacated, and the matter is remanded for further proceedings consistent with this memorandum and order. In all other respects, the judgment is affirmed.

So ordered.

vacated in part and remanded; affirmed in part

      Since the plaintiff is pro se, we liberally construe his filings, I.S.H. v. M.D.B., 83 Mass. App. Ct. 553, 560 (2013), while still holding him to governing court rules, Rothman v. Trister, 450 Mass. 1034 (2008).

      See R.S. v. W.S., 89 Mass. App. Ct. 1135 (2016) (vacating the original one-year c. 258E order); R.S. v. W.R.S., 92 Mass. App. Ct. 1110 (2017) (affirming the subsequent permanent c. 258E order).

      If, on remand, the court grants the defendants' special motion to dismiss as to the abuse of process claim, the judgment should include an award of costs and reasonable attorney's fees as required by G. L. c. 231, § 59H. See Fabre, 436 Mass. at 525 ; 477 Harrison Ave., LLC v. JACE Boston, LLC, 477 Mass. 162, 175-176 (2017).

      We deny the defendants' request for appellate fees pursuant to Mass.R.A.P. 25, as appearing in 376 Mass. 949 (1979), and G. L. c. 211A, § 15, because the appeal is not frivolous.


text:
    COMMONWEALTH v. Tony D. HARRIS.
    17-P-464
    Appeals Court of Massachusetts.
    Entered: April 4, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Five years after pleading guilty to drug and firearms offenses in the District Court, the defendant filed a motion for new trial (once amended) seeking to vacate his guilty pleas after learning of the misconduct of Annie Dookhan, the chemist who performed the confirmatory tests on the cocaine in his case. Following a hearing, the judge denied the amended motion, adopting the Commonwealth's argument that the defendant had failed to meet his burden of proof. On appeal the defendant claims that the judge abused her discretion because (1) there was a reasonable probability that he would not have pleaded guilty had he known of Dookhan's misconduct, and (2) the judge applied the wrong burden of proof. We affirm.

Background. After fleeing from police officers, the defendant was arrested in possession of a firearm, cocaine, and marijuana. The suspected controlled substances were sent to the Hinton lab for testing and Dookhan performed the secondary test on the suspected cocaine, confirming that the substance tested positive for the presence of cocaine. Dookhan did not test the seized marijuana.

Thereafter, the defendant entered into a global plea agreement with the Commonwealth in this case and two unrelated Superior Court cases. Pursuant to that plea agreement and a joint sentencing recommendation, the defendant pleaded guilty to (and was sentenced on) the following counts in the District Court: (1) carrying a loaded firearm without a license (twelve months, from and after the sentence on count five); (3) possession with intent to distribute marijuana (six months); (4) resisting arrest (six months); (5) carrying a firearm without a license (eighteen months); (6) possession of cocaine with intent to distribute (six months); and (7) committing a drug violation in a school zone (two years from and after the sentences imposed on counts three and six). All of the District Court sentences were ordered to run concurrently with State prison sentences imposed in the first Superior Court case (the 2007 case), in which the defendant received an aggregate committed sentence of five years to five years and one day on charges including armed assault with intent to murder and assault and battery by means of a dangerous weapon. In the second Superior Court prosecution (the 2008 case) the defendant pleaded guilty to (and was sentenced on) possession of cocaine with intent to distribute (one year and one day), and possession of marijuana with intent to distribute (one year concurrent).

Discussion. We review a defendant's motion to withdraw his guilty pleas as a motion for new trial. Commonwealth v. Furr, 454 Mass. 101, 106 (2009). We evaluate the judge's decision to deny the motion "only to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Acevedo, 446 Mass. 435, 441 (2006), quoting from Commonwealth v. Grace, 397 Mass. 303, 307 (1986).

To prevail on a motion to withdraw his guilty pleas, a defendant is required to establish (1) that there was egregious government misconduct in his case, (2) which had materially influenced his decision to plead guilty. Commonwealth v. Scott, 467 Mass. 336, 347-358 (2014). As the Commonwealth concedes, here Dookhan's participation in the analysis of the seized substance was sufficient to establish a conclusive presumption of egregious government misconduct. Id. at 354. However, after considering the totality of the circumstances, the judge concluded that the defendant failed to satisfy the second prong of Scott. That is, the defendant failed to "demonstrate a reasonable probability that he would not have pleaded guilty had he known of Dookhan's misconduct." Id. at 355. We discern no abuse of discretion in this conclusion.

In Scott, the Supreme Judicial Court recognized that "a defendant's decision to tender a guilty plea is a unique, individualized decision, and the relevant factors and their relative weight will differ from one case to the next." Id. at 356. Among the factors a motion judge should consider are whether evidence of the misconduct could have detracted from the factual basis supporting the guilty plea, and whether the value of the evidence was outweighed by the benefit the defendant received from the plea agreement. Id. at 355-356.

We agree with the Commonwealth that, in this case, the evidence against the defendant was strong. The firearm, cocaine, and marijuana were all seized by the police from the defendant's person. Dookhan had no involvement in the charges related to the firearm and the marijuana. The marijuana charge would have served as a predicate for the school zone charge had the case proceeded to trial. Thus, Dookhan's misconduct would not have affected the strength of the evidence on those charges.

Moreover, there was other evidence of the nature of the white powder in the defendant's possession. In addition to the physical examination of the substance by experienced officers, the Commonwealth's evidence included a positive test by the primary chemist. See Commonwealth v. Antone, 90 Mass. App. Ct. 810, 817 (2017) (defendant had to consider that primary test may be admitted in evidence even though confirmatory test by Dookhan inadmissible). There was also evidence of a positive field test by the police before the evidence was submitted to the laboratory. Although not conclusive that the white powder seized from the defendant was, in fact, cocaine, "a presumptively positive field test, with proper foundation, may be of persuasive weight" to a fact finder. Commonwealth v. Marte, 84 Mass. App. Ct. 136, 141-142 (2013). Thus, independent of Dookhan's confirmatory test, there was evidence which, if admitted, would support a conclusion that the substance possessed by the defendant was cocaine.

Even assuming that Dookhan's misconduct would have provided a substantial ground of defense on the cocaine charge in the District Court, it would not have affected the more serious charges, including armed assault with intent to murder, pending in the 2007 case in Superior Court. On that charge, the defendant faced a maximum sentence of twenty years' imprisonment and a minimum mandatory sentence of five years. G. L. c. 265, § 18(b ). In light of the defendant's lengthy criminal history, it was reasonable to anticipate that a conviction at trial would result in a sentence that far exceeded the five-year mandatory minimum. The defendant would also have been aware that convictions after trials in the District Court and Superior Court prosecutions could result in consecutive sentences. Yet the defendant negotiated a favorable global disposition in which his sentences in the District Court were served concurrently with the longer aggregate committed sentence in the 2007 case, which was equal to the minimum mandatory sentence on the more serious Superior Court charge in that case. In these circumstances, where there was other evidence of the nature of the suspected cocaine, and the defendant received a significantly reduced sentence as part of the global plea agreement, the defendant has failed to demonstrate a reasonable probability that he would not have pleaded guilty to the drug charges had he known of Dookhan's misconduct.

The defendant argues that the allowance of a similar motion for new trial in the 2008 Superior Court case should inform our analysis in this case. We disagree. While the 2008 Superior Court case and the instant prosecution were considered together by the parties for purposes of the global plea agreement, the motions for new trial were filed and considered separately. The motion for new trial in the 2008 Superior Court case was allowed on June 26, 2013. The motion for new trial in this District Court case was not filed until September 17, 2015, over two years later, shortly after the defendant was indicted as an armed career criminal in a third Superior Court prosecution. Moreover, there were substantive differences between Dookhan's role in the 2008 case and her role in the District Court prosecution. Dookhan was the primary chemist responsible for conducting the testing in the 2008 case, but only performed the confirmatory testing in this case. Thus, on the limited record before us, we cannot conclude that the order allowing the motion for new trial in the 2008 case is inconsistent with our decision here.

Simply put, in the totality of circumstances in this case, where (1) the defendant risked a far greater period of incarceration if he proceeded to trial, (2) evidence of the positive primary test and the field test of the cocaine may have been admitted at trial, (3) the evidence against him on the noncocaine offenses was strong, (4) Dookhan's testimony was not necessary to prove the noncocaine charges, and (5) the defendant avoided a potential lengthy State prison sentence in an unrelated case, the motion judge did not abuse her discretion when she denied the defendant's request to withdraw his guilty pleas.

Finally, we see no merit in the defendant's claim that, in adopting the argument set forth in the Commonwealth's written opposition, the judge employed an incorrect burden of proof. We have reviewed the Commonwealth's memorandum in opposition to the motion for new trial. It correctly states that "[a] defendant who has received the benefit of this conclusive presumption of misconduct [set forth in Scott, 467 Mass. at 354 ] must still show a reasonable probability that he would not have pleaded guilty had he known of the misconduct." We see no reason to conclude that the judge misapplied this well-settled standard.

Order denying amended motion for new trial affirmed.

      Dookhan pleaded guilty to multiple counts of evidence tampering and obstruction of justice, all related to her handling and testing of drug samples at the William A. Hinton State Laboratory Institute (Hinton lab). See generally Commonwealth v. Scott, 467 Mass. 336, 337-342 (2014).

      Count two was dismissed as duplicative.

      The sentences on counts three, four, six, and seven were also to run concurrently with the sentence on count five.

      The other included crimes were a silencer charge and carrying a loaded firearm while intoxicated.

      Because in the 2008 case Dookhan was the primary chemist testing the cocaine and the sole chemist testing the marijuana, the defendant's motion in the Superior Court to withdraw those guilty pleas was allowed, and the charges were ultimately dismissed at the request of the Commonwealth.

      On the record before us, we are not persuaded by the defendant's claim that, had he known of Dookhan's misconduct, he would have pursued a meritorious motion to suppress the evidence seized from his person because the police lacked reasonable suspicion to stop him. The cases upon which he relies, Commonwealth v. Warren, 475 Mass. 530 (2016), and Commonwealth v. Meneus, 476 Mass. 231 (2017), were decided after the defendant had waived his motion to suppress and pleaded guilty. Therefore, they could not have influenced the defendant's decision to plead guilty.

      The defendant challenges the assertion that there was a positive field test on the suspected cocaine because there is no reference to a field test in the testing officer's police report. The officer's affidavit, however, states that he conducted a field test and that the substance tested positive for cocaine. This conflict in the evidence would likely have affected the weight, not the admissibility, of the field test evidence.


text:
    ADOPTION OF UGO (and five companion cases ).
    17-P-715
    Appeals Court of Massachusetts.
    Entered: April 4, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Care and Protection of Ellen; Adoption of Robert; Adoption of Thomas; Adoption of Linda; and Adoption of Mary. The children's names are pseudonyms.

   The mother appeals from findings of unfitness made by a judge of the Juvenile Court as to all the children; decrees terminating her parental rights to the five youngest children (including Ugo); and the judge's refusal to order posttermination and postadoption visits with the five youngest children. Ugo appeals from the decree terminating the mother's parental rights as to him. We affirm.

1. Sufficiency of the evidence regarding parental unfitness. A judge must find, by clear and convincing evidence, that the biological parent is currently unfit to further the welfare and best interests of each child before terminating parental rights. See Adoption of Kimberly, 414 Mass. 526, 528-529 (1993). See also G. L. c. 210, § 3. "Generally, no one factor is determinative and the judge should weigh all the evidence." Petitions of the Dept. of Social Servs. to Dispense with Consent to Adoption, 399 Mass. 279, 290 (1987). "The judgment must analyze the parent's character, temperament, capacity and conduct in relation to the particular child's needs, age, affections and environment." Adoption of Carlos, 413 Mass. 339, 348 (1992).

Before terminating parental rights, the judge is required "to make specific and detailed findings." Adoption of Gregory, 434 Mass. 117, 126 (2001). "We give substantial deference to a judge's decision that termination of a parent's rights is in the best interest of the child, and reverse only where the findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion." Adoption of Ilona, 459 Mass. 53, 59 (2011).

Here, the judge's findings of fact clearly and convincingly support her ultimate finding that the mother is unfit to care for each of the children. The judge's findings of fact and consideration of the factors enumerated in G. L. c. 210, § 3, demonstrate that (1) the mother had over a decade-long history of serious abuse and neglect of her children; (2) she lacks the necessary understanding of her children's special needs; (3) she suffers from mental health disorders and substance abuse problems and fails to utilize services on a consistent basis; and (4) she lacks insight into her responsibility for why the children were removed.

We note, as did the judge, that the mother complied with much of her service plan. Specifically, the mother graduated from a twelve-week parenting class and attended two anger management classes. Additionally, the mother attended many of her scheduled parent-child visits and showed improvement in several areas. Nevertheless, the mother did not effectuate a substantial and material change in the actions and behavior that had led to a long history of involvement with the Department of Children and Families (DCF). Her testimony at trial consistently showed a lack of responsibility for and recognition of her actions that caused the abuse and neglect of the children. Accordingly, there was sufficient evidence to clearly and convincingly establish that the mother was unfit and that her unfitness would continue into the indefinite future to a near certitude. See Adoption of Jacques, 82 Mass. App. Ct. 601, 606 (2012).

2. Termination of parental rights. "After ascertaining unfitness, the judge must determine whether the parent's unfitness is such that it would be in the child's best interests to end all legal relations between parent and child." Adoption of Nancy, 443 Mass. 512, 515 (2005). "[O]n-going, repeated patterns of serious parental neglect and abuse ... can be relied on by the judge when determining parental unfitness." Adoption of Mary, 414 Mass. 705, 711 (1993). Here, in addition to the detailed and numerous findings of the mother's unfitness, the judge's conclusion that it was in the best interests of the five youngest children to terminate the mother's parental rights as to them was supported by the record. The judge carefully evaluated the best interests of each child individually as evidenced by her decision not to terminate the mother's parental rights as to the oldest child. See note 4, supra. The mother has a lengthy history of physically and emotionally abusing her children and refuses to take responsibility for her actions or show an ability to change. The mother continues to place her children at risk for further abuse by exposing them to dangerous living conditions and continuing to have relationships with violent and abusive partners. We therefore conclude that the judge's factual findings clearly support the determination that the termination of the mother's parental rights as to the five youngest children served their best interests. See, e.g., Care & Protection of Bruce, 44 Mass. App. Ct. 758, 761 (1998) ; Care & Protection of Lillith, 61 Mass. App. Ct. 132, 139 (2004) ; Adoption of Anton, 72 Mass. App. Ct. 667, 676 (2008).

3. Ugo's appeal. Ugo, who was fourteen years old at the time of the trial, independently appeals from the decree terminating the mother's rights as to him. He argues on appeal, as he did at trial, that his best interests lie in not terminating the rights of the only parent he has ever known, and that he should have continued access to the mother's support and "consistent care." "A judge should consider the wishes of the children in making custodial determinations." Adoption of Nancy, 443 Mass. at 518. Here, the judge gave Ugo's expressed wishes appropriate weight. The judge's findings explain that the plan for Ugo is to place him with his father once he is "healthy and safe enough to leave residential care and maintain himself outside of care for a period of time." Based on the judge's findings of fact, the judge did not abuse his discretion when making this determination, especially when considering the mother's history of neglect of Ugo's substantial special needs. See Care & Protection of Vick, 89 Mass. App. Ct. 704, 710 (2016) ("The child's wishes, however, are neither decisive nor outcome dispositive, ... and must be considered against the backdrop of the mother's unfitness").

4. Posttermination and postadoption visitation. The mother argues that the judge should have ordered visitation with the children to whom her parental rights were terminated. "In determining whether to exercise the authority to order visitation, a judge must ask two questions: First, is visitation in the child's best interest? Second, in cases where a family is ready to adopt the child, is an order of visitation necessary to protect the child's best interest, or may decisions regarding visitation be left to the judgment of the adoptive family?" Adoption of Ilona, 459 Mass. at 63. Here, the judge found that there was no significant bond between the mother and the three youngest children and that it would be in those children's best interests to leave the question of posttermination and postadoption contact to the discretion of their legal guardians. The judge also found that since another one of the children (Ugo's twin brother) did not want to have visits with the mother, "any visits shall be left to the sound discretion of his father," who has permanent custody of that child. Finally, with regard to Ugo, the judge found "that although there may be some evidence of a bond between Ugo and Mother, given his severe mental health issues, contact with Mother shall be left to the sound discretion of his legal guardian." We see no error in any of those findings. See Adoption of Vito, 431 Mass. 550, 563-564 (2000).

5. DCF's efforts. The mother argues that the judge failed "to acknowledge [that Mother's] low I.Q. was barely above retardation and the services required to address Mother's needs are different than someone with an average I.Q." The mother contends that because DCF's service plans failed to account for the mother's cognitive limitations and disabilities in violation of the Americans with Disabilities Act, 42 U.S.C. §§ 12131 - 12134 (2012), DCF violated its mandate to provide reasonable efforts to preserve family integrity. See Adoption of Ilona, supra at 61 ("Where a parent ... has cognitive or other limitations that affect the receipt of services, the department's duty to make reasonable efforts to preserve the natural family includes a requirement that the department provide services that accommodate the special needs of a parent"). However, because the mother failed to raise a challenge until the termination proceedings, any claimed violation is not properly before us on appeal. See Adoption of Gregory, 434 Mass. at 124. The mother could have raised her claim of inadequate services numerous times prior to the termination proceedings to properly preserve this issue for appeal. See id. at 124-125. See also Adoption of Uday, 91 Mass. App. Ct. 51, 53-54 (2017).

Judgment as to oldest child affirmed.

Decrees as to five youngest children affirmed.

      The children's fathers did not appeal from the judge's disposition of their cases.

      As an initial matter, we conclude that the mother's challenges to the judge's impartiality are without merit. For the reasons stated in the brief of the Department of Children and Families (DCF) at pages fifty through fifty-two, these challenges are unsupported by the record, or simply a disagreement with the judge's weighing of the evidence and credibility determinations. See Adoption of Hugo, 428 Mass. 219, 229 (1998), cert. denied, 526 U.S. 1034 (1999).

      The judge found that it was in the best interests of the oldest child for the mother to retain parental rights as to her, and entered judgment awarding permanent custody of that child to DCF.

      Some of the most egregious examples of such conduct include: multiple instances of physical abuse toward the children; exposure of the children to domestic violence and sexual assault; and neglect of the children's special medical, emotional, and developmental needs.

      Each of the children exhibits significant mental and emotional trauma that can be traced to the mother's actions and omissions. Three of the children have required extensive stays in specialized residential care and each of the children will require therapy for the foreseeable future.

      Ugo argues that the judge erred in ignoring the fact that he does not want to live with his father. We note that Ugo could only be returned to his father's custody if DCF, after consultation with his mental health care providers, deemed it in his best interests.

      Ugo "adopts Mother's facts and argument related to Mother's intellectual disability." Even assuming that Ugo has standing to make such an argument, we do not find it persuasive for the reasons stated.


text:
    Fabienne SAINT-SURIN v. Koby KEMPEL.
    17-P-454
    Appeals Court of Massachusetts.
    Entered: April 3, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The plaintiff (mother) and the defendant (father), unmarried parents of a child born of a brief relationship, bring cross appeals challenging the child support provisions of an amended judgment of the Probate and Family Court entered on November 22, 2016, after a four-day bench trial. We affirm.

Background. In a judgment entered August 23, 2016, the judge determined that the defendant was the father, granted sole custody to the mother, and ordered the father to pay child support. The judge also issued findings of fact, conclusions of law, and a rationale in support of the judgment. The judge determined that the father's weekly income was $3,436, yielding a payment of $554 per week under the Massachusetts Child Support Guidelines (2013) (Guidelines). However, because the father sought no parenting time, the judge, as permitted by the Guidelines, made an upward adjustment in the father's child support obligation by ten percent, to $609 per week. In addition, finding that the father's income varied from year to year, and that the child was entitled to share in the higher standard of living of the father as the noncustodial parent, the judge ordered that ten percent of "any bonus over $20,000 per year, commission, distribution or other earned or business income," be paid as child support.

On the father's unopposed motion to amend the judgment to reduce (pursuant to an earlier stipulation) the period of retroactive child support, an amended judgment and amended rationale dated October 18, 2016, were entered on October 24, 2016. The mother and the father cross-appealed.

Discussion. 1. Mother's appeal. a. Income. We review the judge's determination of income for child support purposes under the abuse of discretion standard. See Casey v. Casey, 79 Mass. App. Ct. 623, 634 (2011). "Findings 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 witnesses." J.S. v. C.C., 454 Mass. 652, 657 (2009), quoting from Mason v. Coleman, 447 Mass. 177, 186 (2006). See Dennis v. Dennis, 29 Mass. App. Ct. 161, 165 (1990).

The mother contends that the judge should have imputed more income to the father in calculating child support. In her brief, however, she fails to specify any finding that she claims was clearly erroneous, or any particular category of income that was properly before the judge and that should have been imputed, or any error of law or abuse of discretion. Moreover, as the mother conceded at oral argument, by requiring that the father pay ten percent of any future bonus or other additional income in excess of $20,000 per year, the judge provided the child with additional support in those years when the father's income may be higher. Accordingly, we see no abuse of discretion or other error.

b. Retroactivity of child support. The mother asserts that the judge abused her discretion in allowing the father's motion to amend the judgment to reduce, based on the parties' earlier stipulation, the period for which retroactive child support was due. But the mother failed to oppose this motion and has therefore waived this issue. In any event, the mother's short appellate argument on the issue has not demonstrated any abuse of discretion in the judge's explanation for the amendment.

c. Discovery order. The mother argues that the judge abused her discretion in allowing the father's motion to quash a subpoena duces tecum served upon the father's accountant. The subpoena was served shortly before trial, over two months after the pretrial order provided that "discovery is completed" and that "except for rebuttal witnesses and for good cause shown, only the parties may testify at trial." In quashing the subpoena, the judge agreed with the father that the subpoena was an improper effort to conduct discovery on the eve of trial.

On appeal, the mother argues that "[t]he timing of the subpoena was motivated by concern that advance notice to the [f]ather would enable him to take steps to further conceal information as he had throughout discovery." The mother did not make this argument to the judge, however, and therefore it is waived. Moreover, "[t]he extensive discretion of trial judges with respect to both the process of discovery and the admission of evidence" is well established. See Beaupre v. Cliff Smith & Assocs., 50 Mass. App. Ct. 480, 485 (2000). There is nothing in the record here showing that the judge abused that discretion.

2. Father's appeal. In his cross appeal, the father argues that the judge applied an improper "arbitrary, percentage-driven" standard, unlinked to the child's needs, when she ordered additional support of ten percent of "any bonus over $20,000 per year, commission, distribution or other earned or business income." We disagree.

"Of particular relevance to the issues before us are the principles that responsibility for child support should be calculated 'in proportion to, or as a percentage of,' income, and that, where one parent has a higher standard of living, a child is entitled to enjoy that higher standard." M.C. v. T.K., 463 Mass. 226, 234 (2012), quoting from Massachusetts Child Support Guidelines, Preamble (2006). Under the Guidelines, "children's needs are to be defined, at least in part, by their parents' standard of living and ... children are entitled to participate in the noncustodial parent's higher standard of living when available resources permit." Brooks v. Piela, 61 Mass. App. Ct. 731, 737 (2004).

Here, the evidence demonstrated that the father earned a significant income, the "bonus" portion of which, based on the father's reporting, was subject to substantial annual variations. In 2014, his bonus was $237,181 (equal to $4,561 per week), but for 2015 (the last full year before trial) he reported bonuses equal to either $192 per week or $288 per week; the judge found that he offered no credible explanation for the discrepancy. In early 2016, he reported receiving quarterly bonuses of $5,000 for the preceding year, or $20,000 annually, and stated his expectation of receiving a $5,000 bonus for the first quarter of 2016. Accordingly, the judge assumed a $20,000 annual bonus (equal to $384.61 weekly) for purposes of calculating his weekly income and the resulting child support award; but recognized that the bonus or additional income from other sources might well exceed that amount.

Additionally, the judge determined that the father's statements about his income and expenses were "not reliable, contain[ed] many inaccuracies, and reflect[ed] significant omissions." Quoting from Crowe v. Fong, 45 Mass. App. Ct. 673, 682 (1998), the judge concluded that the father's statements were "fraught with deception in an attempt to hide from the [c]ourt his net worth and his ability to pay for the support of his ... child[ ]."

"Income" is defined very broadly to include "income from whatever source," including "bonuses" and twenty-six other itemized categories of income, as well as "any other form of income or compensation not specifically itemized." See Guidelines § I-A. The judge had broad discretion in determining income. See Casey v. Casey, 79 Mass. App. Ct. at 634. Accordingly, and in light of the uncertainties attributable to the father, the judge did not abuse her discretion when she considered the likely future income of the father in excess of his current income, and required payment of ten percent of that excess amount as child support.

The father nevertheless asserts that the judge must have based this requirement on the provision of the Guidelines allowing deviation from the presumptive award where "application of the guidelines would result in a gross disparity in the standard of living between the two households such that one household is left with an unreasonably low percentage of the combined available income." Guidelines § IV, circumstance (6). The father then notes that the judge did not make the specific written findings required by § IV to support such a deviation.

We reject the father's premise. Nowhere in her findings, conclusions, or rationale did the judge refer to any gross disparity between the father's and mother's household living standards, or to any cause for deviation from the application of the Guidelines. Rather, the judge merely recognized that the father was likely to earn more income in future years than he had reported or than could be accurately predicted at the time of trial, and that, in accordance with Guidelines principles, an appropriate percentage of that income should be paid as child support.

The father also argues that the judge should have focused on what was "a reasonable award in light of [the child's] needs," and that the percentage provision ignores that consideration. As support, the father relies on J.C. v. E.M., 36 Mass. App. Ct. 446 (1994), a decision where the noncustodial parent's income was high enough that the "guidelines [did] not apply," id. at 450 ; Cooper v. Cooper, 62 Mass. App. Ct. 130 (2004), a decision applying to "circumstances ... falling far outside of the Massachusetts Child Support Guidelines," id. at 135 ; and Bush v. Bush, 402 Mass. 406 (1988), a decision concerning a request to modify the child support provision of a divorce judgment based on changed circumstances, and where the Massachusetts Child Support Guidelines were not even mentioned, see id. at 409-410. None of those decisions is relevant to this case, which is governed by, and which we conclude the judge decided in accordance with, the Guidelines.

Conclusion. The amended judgment dated October 18, 2016, is affirmed.

So ordered.

Affirmed.

      Comprising $2,543.27 base salary, a $384.61 bonus (based on assumed $20,000 annual bonus income), and $508 in regular payments received from the father's brother.

      In making the adjustment, the judge relied on Guidelines § II-D ("If parenting time is less than one-third for the parent who is not the residential parent, the Court may consider an upward adjustment to the amount provided under the child support guidelines"). The father does not challenge this adjustment on appeal.

      Finding that the mother was working to improve her career prospects by attending college full time, while also caring for the child, the judge declined to either attribute income to the mother or to find her unemployed or underemployed.

      For reasons unclear from the record, perhaps due to a clerical mistake, the identical amended judgment dated October 18, 2016, was entered on the docket again on November 22, 2016.

      At oral argument, the mother claimed, based on two 2015 letters reflecting distributions to the father from the Vertical Flank investment fund, that the judge erred in failing to impute additional, future income to the father from that fund. Although the judge discredited the father's testimony regarding Vertical Flank, the judge also found that "no additional evidence was presented at trial upon which the Court can base a finding that [he] continues to have an interest in this entity." Having reviewed the two letters, the later of which stated that the father had been paid back his full original capital investment plus a fifteen percent return, we cannot say that the judge's finding was clearly erroneous.

      At oral argument, the mother challenged as clearly erroneous the judge's finding crediting the father's testimony that he no longer owned horses and had not shown horses since September, 2015. But the judge so found in part because the "[m]other did not present any reliable evidence to the contrary." The mother points to no contrary evidence in the record; her claim in her brief that the father realized $36,000 from the sale of a horse in December, 2015, has no record support. We will not disturb the judge's credibility findings. See J.S., 454 Mass. at 657.

      After the judge allowed the father's motion and an amended judgment issued, the mother moved to "[f]urther [a]mend [a]nd [c]orrect" the judgment to reinstate the prior retroactivity period. The judge denied that motion, and the mother does not challenge or even mention that action on appeal.

      What the mother argued is that she wanted the accountant to testify and his records to be considered as a part of the mother's case in rebuttal. The judge agreed to consider that request and accepted the records in an envelope to be opened only if rebuttal was necessary after the father's case. Ultimately the father did not put on a case-he was called by the mother as her first witness-and the mother did not renew her request for the records to be considered as "rebuttal" evidence.

      The mother also argued to the judge that she had no choice but to subpoena the accountant's records for trial because her previous discovery requests were unsuccessful and her motions to compel were denied. But she has not included those discovery requests or motions in the record appendix, making it impossible for us to determine what records she sought, and from whom, during discovery. Nor has she challenged on appeal the judge's orders denying the motions to compel, one of which orders nevertheless required the father to produce verification for all income received in 2015 from all sources. Thus the limited information in the record about the history of the mother's discovery efforts does not persuade us that the judge abused her discretion in quashing the subpoena to the accountant.

      There is no merit to the father's claim that the ten percent figure is arbitrary and unfair to him. The marginal rate of support at the father's weekly income of $3,436 is, under the Guidelines, twelve percent. The marginal rate in the top income bracket is eleven percent. Thus, the judge's use of a marginal rate of ten percent for any additional bonus income is similar to and slightly below the rates for his income bracket and the top bracket. We see no abuse of discretion. Of course, a change in circumstances could provide the basis for a complaint for modification of the judgment, either to decrease or increase the amount of support. G. L. c. 209C, § 20 ; Doe v. Roe, 32 Mass. App. Ct. 63, 66 (1992).


text:
    COMMONWEALTH v. Kristen L. WOOLF.
    17-P-6
    Appeals Court of Massachusetts.
    Entered: April 3, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   A jury convicted the defendant, Kristen Woolf, of three counts of violation of a harassment prevention order and one count of assault and battery. On appeal, she asserts there was insufficient evidence to support her convictions of violating a harassment prevention order and that various trial errors created a substantial risk of a miscarriage of justice warranting reversal of all of the convictions. We affirm.

Background. The jury could have found the following facts based on the evidence presented at trial. The defendant and the victim lived in the same apartment building, and a dispute between the victim and another woman over a scratch on a car resulted in a physical altercation involving numerous individuals, including the defendant. During that incident, the defendant punched the victim, causing her lip to bleed.

Based in part on that incident, the victim sought and received a harassment prevention order against the defendant pursuant to G. L. c. 258E, § 9. That order required the defendant to stay fifty yards away from the victim when not at the apartment complex and prohibited the defendant from contacting or abusing the victim. The defendant was convicted of violating that order on three separate dates: (1) on August 5, 2015, the defendant was behind the apartment building when the victim and her boy friend entered the parking lot, and the defendant yelled, "You dumb bitch, you can't even drive because you can't read" road signs; (2) on November 17, 2015, the defendant and victim both waited at the school bus stop when the defendant and her friends clapped their hands at the victim, and after the victim turned and looked at the defendant, she said, "What, bitch?"; and (3) on March 2, 2016, the defendant and her friends again were at the bus stop with the victim, and the defendant walked past the victim while laughing and clapping her hands at her.

Discussion. 1. Sufficiency of the evidence. The defendant contends that there was insufficient evidence to support her conviction stemming from the March 2 incident. Further, the defendant cites inconsistencies within the testimony of the victim and her boy friend regarding the dates of incidents underlying the violations of the harassment prevention order. Because of this, she asserts, if one violation is overturned, all three must be overturned because the evidence does not clearly establish which incident took place on which date. Since we conclude that there was sufficient evidence to support the conviction of the March 2 incident, we need not reach the second question.

When the sufficiency of the evidence is challenged, we must determine whether, after viewing the evidence in the light most favorable to the Commonwealth, " 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt' (emphasis in original)." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 433 U.S. 307, 318-319 (1979). To support a conviction of violation of a harassment prevention order, four things must be proven: (1) the victim obtained a harassment prevention order against the defendant; (2) the order was in effect at the time of the violation; (3) the defendant knew that the order was in effect at time of the violation; and (4) the defendant violated the order. See Commonwealth v. Delaney, 425 Mass. 587, 595 (1997).

The issue before us is whether, when viewed in the light most favorable to the Commonwealth, the evidence of the defendant laughing and clapping at the victim was sufficient to establish "contact" in violation of the harassment prevention order. "Our cases generally interpret 'contact' broadly; there are many ways to achieve a communication." Commonwealth v. Basile, 47 Mass. App. Ct. 918, 919-920 (1999). Contact need not be verbal. See Commonwealth v. Butler, 40 Mass. App. Ct. 906, 907 (1996) (defendant contacted victim by anonymously sending flowers); Commonwealth v. Crimmins, 46 Mass. App. Ct. 489, 490 (1999) (defendant made contact by following victim's car); Basile, supra (defendant jumping and waving at victim from down the street constituted contact). Accordingly, we conclude that the victim's testimony about the defendant laughing and clapping at her was sufficient to support the conviction of the March 2 violation. What weight to give this testimony was a question properly left in the hands of the jury. See Commonwealth v. Martin, 467 Mass. 291, 313-314 (2014). Because of this, the three distinct violations of the harassment prevention order were all supported, and any minor confusion on the victim's part regarding which incident occurred on which date did nothing to undermine the verdicts.

2. Substantial risk. The defendant further asserts that four trial errors created a substantial risk of a miscarriage of justice with respect to all of her convictions: (1) the victim referred to prior bad acts of the defendant; (2) the judge failed to sua sponte strike testimony after sustaining defense objections; (3) the judge failed to properly cure the prejudice stemming from failure to strike testimony with her instructions; and (4) the Commonwealth posed improper questions in its closing argument. In reviewing the defendant's claims, we consider whether there was an error made and, if so, whether it created a substantial risk of a miscarriage of justice such that the court is left "with a serious doubt that the defendant['s] guilt had been fairly adjudicated." Commonwealth v. Amirault, 424 Mass. 618, 646-647 (1997).

As it relates to the first three asserted errors regarding prior bad acts testimony and the judge's response, we discern no error and therefore no substantial risk of a miscarriage of justice. The victim struggled to limit her testimony to the three incidents charged, more than once referencing additional incidents between her and the defendant or how there were "so many" other incidents than those charged. The judge sustained defense objections to those statements and instructed the jury to disregard them, and during her jury instructions, the judge reiterated the purpose of objections to evidence and instructed the jury to reach their decision based on what was admitted as evidence. See Commonwealth v. Kozec, 399 Mass. 514, 517 (1987) (jury is presumed to have "[a] certain measure of ... sophistication"). When asked by the defendant to strike testimony after sustaining objections, the judge did so. As to other sustained objections, the judge was under no obligation to interject, sua sponte, and strike the challenged testimony from the record after sustaining the defendant's objections. See Commonwealth v. Pimental, 54 Mass. App. Ct. 325, 330 (2002) ("[T]he trial judge's responsibility to conduct a fair trial does not require her to act as an attorney [for the defendant]"). Here, the judge properly addressed the issues that may have arisen from references to prior bad acts by the defendant, and as there was no error, there was no substantial risk of a miscarriage of justice. See Amirault, 424 Mass. at 646-647.

Finally, we agree with the defendant that there were portions of the Commonwealth's closing argument that were improper, yet after careful consideration, we conclude they did not create a substantial risk of a miscarriage of justice. "In determining whether an argument was improper we examine the remarks 'in the context of the entire argument, and in light of the judge's instructions to the jury and the evidence at trial.' " Commonwealth v. Gaynor, 443 Mass. 245, 273 (2005), quoting from Commonwealth v. Viriyahiranpaiboon, 412 Mass. 224, 231 (1992).

The defendant asserts three errors in the prosecutor's closing argument. The Commonwealth concedes error in one of the challenged statements. Regarding the following questions posed to the jury, however, the Commonwealth contests the defendant's asserted errors. First, the defendant challenges the prosecutor's statement that "[the defendant] tells a police officer to fuck off. Her words, not mine. Don't you think she's capable of calling [the victim] a bitch at the bus stop?" Second, the defendant challenges the statement that "[i]f she yells at a police officer on the phone, who is just doing his job, and threatens him and says I'm going to take out harassment charges against the Middleborough [p]olice [d]epartment, don't you think she's capable of violating a court order?"

"Prosecutors must limit the scope of their closing arguments to facts in evidence and the fair inferences that may be drawn therefrom." Commonwealth v. Valentin, 474 Mass. 301, 309 (2016) (quotation omitted). Just as the prosecutor's statement that fell outside of the record was inappropriate, the repeated suggestions that the defendant's prior bad acts made her more likely to have committed the crimes charged called on the jury to make improper inferences based on the defendant's propensity for wrongdoing. See Commonwealth v. Woollam, 478 Mass. 493, 500 (2017) (evidence may not be used to establish defendant's propensity to commit crime charged). We agree with the defendant that the statements were improper. However, considering the judge's instruction that opening statements and closing arguments are not evidence and the ample evidence presented to support the convictions, we conclude that the errors were not so significant as to leave us "with a serious doubt that the defendant['s] guilt had been fairly adjudicated." Amirault, 424 Mass. at 647.

Judgments affirmed.

      The defendant did not have children of her own but would regularly look after neighbors' children at the bus stop.

      The defendant never spoke to the victim during the March 2 incident.

      Any risk of confusion was alleviated by the defendant's request that each verdict slip contain a date of the offense.

      In accordance with model jury instructions, the judge properly instructed the jury that it was their duty to decide questions of fact, including whether to believe witnesses and whether the witnesses' memories are accurate. See Instruction 2.260 of the Criminal Model Jury Instructions for Use in the District Court (2009).

      The Commonwealth concedes that it was improper for the prosecutor to characterize the defendant as a "ringleader" who organized a group of people to harass the victim. There was no evidence to support the Commonwealth's labeling of the defendant as the ringleader.


text:
    COMMONWEALTH v. Dillon A. COPELAND.
    17-P-305
    Appeals Court of Massachusetts.
    Entered: April 2, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   This is the Commonwealth's interlocutory appeal from an order allowing a motion to suppress by a judge of the Central Division of the Boston Municipal Court Department. The defendant was charged by complaint with various firearm and motor vehicle offenses. The defendant filed a motion to suppress, which the judge allowed after an evidentiary hearing. On appeal, the Commonwealth claims it was error to allow the motion. We agree, and reverse.

Here, as the judge found, the car the defendant was operating was stopped after a State trooper noticed one of its headlights was not illuminated. When the defendant was asked for his license and registration, he produced his girl friend's license, who was the front seat passenger and the car's owner. The defendant told the trooper that his license had been suspended, whereupon the trooper ordered him to exit the vehicle. The trooper informed the defendant that he was not under arrest and that he (the trooper) was going to conduct a patfrisk.

Based on these facts, the judge held that because there lacked reasonable and articulable facts that would justify a reasonably prudent person in the trooper's position to be warranted in the belief that the safety of the officer or another was in danger, the exit order was improper. In rebuttal, the Commonwealth claims that the judge did not address, even after its motion to reconsider, the Commonwealth's argument that the exit order and the patfrisk were lawful because there was probable cause to arrest the defendant for operating a motor vehicle after suspension. We agree.

Here, the trooper had probable cause to arrest the defendant for operating a motor vehicle with a suspended license before the trooper issued the exit order. See G. L. c. 90, § 21 (authorizing warrantless arrest for driving after right to operate is suspended); G. L. c. 90, § 23 (criminalizing operation of motor vehicle after suspension of license to operate). After failing to produce his license, the defendant admitted that his license was suspended. It was only at this point that the trooper issued the exit order. See Commonwealth v. Greenwood, 78 Mass. App. Ct. 611, 616 (2011) ("Where police officers have a reasonable, articulable suspicion that a person in a vehicle has committed, is committing, or is about to commit a crime, they may ... issue an exit order").

Because there was probable cause to arrest the defendant for operating a motor vehicle with a suspended license, the trooper was also justified in searching the defendant. See G. L. c. 276, § 1 ; Commonwealth v. Alvarado, 420 Mass. 542, 550 (1995). It matters not that the trooper told the defendant that he was not under arrest because probable cause is determined based on an objective standard. See Commonwealth v. Hason, 387 Mass. 169, 175 (1982) (probable cause inquiry is "objective"; "subjective beliefs of the police officer are not conclusive on this issue"). Also, a search may precede formal arrest as long as probable cause exists for the arrest and the arrest and the search are "roughly contemporaneous." Commonwealth v. Washington, 449 Mass. 476, 481 (2007). In light of this, it was error to allow the motion to suppress.

Order allowing motion to suppress reversed.

      Contrary to the defendant's claim, the existence vel non of probable cause did not require the trooper to perform a license check to confirm that the defendant's license was suspended. "Probable cause exists where 'the facts and circumstances within ... [the trooper's] knowledge and of which [he] had reasonably trustworthy information [are] sufficient in themselves to warrant a [person] of reasonable caution in the belief that' an offense has been or is being committed." Commonwealth v. Hason, 387 Mass. 169, 174 (1982), quoting from Brinegar v. UnitedStates, 338 U.S. 160, 175-176 (1949). The defendant's admission, coupled with his production of a license belonging to another, was reasonably trustworthy information to warrant a person of reasonable caution in the belief that the defendant was operating the car after his right to do so had been suspended.


text:
    Conrad SAVOURY v. BERKSHIRE COUNTY OFFICE OF the SHERIFF & others.
    16-P-1651
    Appeals Court of Massachusetts.
    Entered: April 2, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Thomas N. Bowler and Carmen C. Massimiano, Jr.

   The plaintiff appeals from a judgment entered in the Superior Court, dismissing his complaint on the defendant's motion for summary judgment. We conclude that genuine issues of material fact preclude entry of summary judgment, and we reverse the judgment.

The plaintiff's complaint seeks payment for wages during a period when he was on leave for National Guard service, pursuant to G. L. c. 33, § 59. The plaintiff now concedes that his argument in the Superior Court rested largely on amendments to the statute that came into effect in 2014, after the period for which he claims wages due. However, the plaintiff contends that he is entitled to wages pursuant to St. 2003, c. 137, § 1, "An Act Relative to Public Employees Serving in the Armed Forces of the United States" (act).

As a threshold matter, we reject the defendants' contention that the Wage Act, G. L. c. 149, §§ 148, 150, does not create a private right of action, or that the statute does not include an implied waiver of sovereign immunity. "Where, as here, the Legislature provides expressly that payments shall be made by a municipality or district, waiver of sovereign immunity as to those elements is obvious. Otherwise, the statute would be ineffective, and '[w]e will not impute [to the Legislature] ... an "intention to pass an ineffective statute." ' " Todino v. Wellfleet, 448 Mass. 234, 238 (2007), quoting from Bates v. Director of Office of Campaign & Political Fin., 436 Mass. 144, 173-174 (2002). We also agree with the plaintiff that his claim should have been construed to encompass an entitlement to payments pursuant to St. 2003, c. 137, § 1, even though the complaint did not refer to that act; the plaintiff's arguments at summary judgment invoked the statute, and both the motion judge and the defendants engaged the substance of the claim on that basis. See Whitinsville Plaza, Inc. v. Kotseas, 378 Mass. 85, 89 (1979) ; Gallant v. Worcester, 383 Mass. 707, 709-710 (1981).

The defendants contend, as they did before the Superior Court judge, that the plaintiff's claim fails because his National Guard service was expressly excluded from eligibility for payments under the provisions of the act. Specifically, the act states that "[f]or the purposes of this section, the words 'active service' shall not include active duty for training in the army national guard or air national guard or as a reservist in the armed forces of the United States." The defendants further cite the notation "ACTIVE DUTY (AD) FOR TRAINING" on the plaintiff's pay stubs included in the summary judgment record to establish that the plaintiff's service was excluded by the above-quoted language. However, the pay stubs at issue covered only a portion of the time the plaintiff was on leave for National Guard service, and his orders for the period from October 1, 2009, through September 30, 2010 (a period following the period reflected on the pay stubs), specify that he was ordered to "Full Time National Guard Duty-Operational Support." Combined with the plaintiff's averments that he was assigned to the counter drug division, and construed in the light most favorable to the plaintiff, see Correia v. Fagan, 452 Mass. 120, 130 (2008), the summary judgment record does not establish as a matter of undisputed fact that the plaintiff's National Guard service was excluded from eligibility for payment under St. 2003, c. 137, § 1.

Judgment reversed.

      On appeal, the plaintiff has abandoned his claims for discrimination and retaliation, asserted in counts 4 through 8 of his complaint.

      In full, the act (as amended by St. 2005, c. 77, § 1), is as follows:
      "Notwithstanding any general or special law to the contrary, an employee in the service of the commonwealth or a county, city or town that accepts this section as provided in this section, including an employee of a school district, who has been granted a military leave of absence because the employee is a member of the army national guard, the air national guard or a reserve component of the armed forces of the United States called to active service in the armed forces of the United States after September 11, 2001, shall be entitled to receive pay at his regular base salary as such a public employee, and shall not lose any seniority or any accrued vacation leave, sick leave, personal leave, compensation time or earned overtime. An employee eligible under this section shall be paid his regular base salary as a public employee for each pay period of military leave of absence after September 11, 2001, reduced by any amount received from the United States as base pay for military service performed during the same pay period. For purposes of this section, base pay shall not include any allowances, overtime pay, shift differential pay, hazardous duty pay or any other additional compensation received for military service. For the purposes of this section, the words 'active service' shall not include active duty for training in the army national guard or air national guard or as a reservist in the armed forces of the United States. This section shall take effect in a county, city or town upon its acceptance in a county, by vote of the county commissioners; in a city or town, as provided in section 4 of chapter 4 of the General Laws ; and in a regional school district, by vote of the school committee. Nothing in this section shall limit or reduce a person's entitlement to benefits under section 59 of chapter 33 of the General Laws, and nothing in this section shall entitle a person to benefits in excess of the maximum benefit provided under said section 59 of said chapter 33 for any period during which that person is receiving benefits under this section."

      The plaintiff's military orders were included in the summary judgment record, but it does not appear that the parties directed the attention of the motion judge to them at the hearing on the motion for summary judgment, or otherwise directed any particular argument to them. We recognize that the plaintiff's failure to rely on the orders in his prior arguments could, if viewed strictly, constitute a waiver of any argument based on them now. However, insofar as the orders appear to raise a significant question concerning the plaintiff's eligibility for wages during a considerable period of active duty military service, we decline to hold the plaintiff to such a waiver.