text:
    COMMONWEALTH v. Reginald LAFONDRIE.
    17-P-594
    Appeals Court of Massachusetts.
    Entered: July 16, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant was charged in a four-count complaint. After amendment, count one alleged aggravated assault and battery causing serious bodily injury, count two alleged assault and battery, count three alleged assault and battery, and count four alleged violation of an abuse prevention order. The defendant was convicted on count one of the lesser included offense of assault and battery, and on counts two, three, and four. He now appeals, arguing that the convictions of assault and battery on counts one, two, and three were duplicative, and that his convictions on counts one and two should be vacated. Because the defendant did not raise his claim before the trial court, he is entitled to relief only if he can demonstrate an error that created a substantial risk of a miscarriage of justice. See Commonwealth v. Medina, 81 Mass. App. Ct. 525, 528 (2012).

The judge did not explain to the jury which act of the defendant was charged in each of counts one, two, and three. However, the judge did say: "Each charge in the complaint is an accusation of a different crime. You must consider each charge separately and return a separate verdict whether guilty or not guilty for each charge and I'll explain to you further the charges in a moment." And, in closing, the prosecutor clearly and correctly described the act that formed the basis for each charge. All of the alleged acts took place during a single physical fight between the defendant and the victim, his wife. The prosecutor explained that the aggravated assault and battery charged in count one occurred when "this defendant put his wife ... in a headlock, squeezing her to the point where she had difficulty breathing ... causing her to either pass out or lose consciousness." The prosecutor continued, arguing that "[o]n Counts II and III the assault and battery ... I have proven that this defendant committed two counts of assault and battery during that same physical fight." The prosecutor said "the first" was when, while holding her in the headlock the defendant "began banging her in her middle back area" with his elbow, and that, with respect to "[t]he second count of straight assault and battery ... I ask you to consider that [as] ... she was up against the wall, he punched her in the stomach.... He punched her in the stomach, again, touching her, intending to do so, an act that is likely to commit bodily harm without consent."

Each of the three acts described by the prosecutor was a "separate and distinct act" capable of supporting a separate conviction. See Commonwealth v. Maldonado, 429 Mass. 502, 509 (1999). Consequently we cannot say that these convictions were duplicative as a matter of law.

Finally, although the defendant is correct that "[w]hether a defendant's actions constitute separate and distinct acts or must be considered a single crime is a question of fact for the jury to resolve," Commonwealth v. Vick, 454 Mass. 418, 435 n.16 (2009), and that the judge did not instruct the jury that they could find that the defendant's acts constituted a single crime, the prosecutor's precise delineation of the defendant's separate acts was enough to preclude a substantial risk of a miscarriage of justice in this case. Compare Commonwealth v. Sanchez, 405 Mass. 369, 381-382 (1989) (substantial risk that justice miscarried due to duplicative convictions where jury could have found defendant's conduct to constitute single crime, judge did not so instruct, and "[t]he Commonwealth [did] not argue" that acts were separate), with Commonwealth v. Mamay, 407 Mass. 412, 418 (1990) (no substantial risk that justice miscarried due to duplicative convictions where jury could have found defendant's conduct to constitute single crime, judge did not so instruct, and "the prosecutor consistently highlighted the different actions of the defendant").

Judgments affirmed.

      The defendant apparently did not realize at the time of briefing that count two had been amended prior to the introduction of evidence to simple assault and battery from aggravated assault and battery, and therefore argues before us that the guilty verdict on count two was on a lesser included offense. It appears that the defendant is incorrect, but it is of no moment, as our analysis would be the same even if count two was a finding of guilt only on a lesser included offense.


source: Caselaw Access Project

license: Public Domain

text:
    Robert J. HADGE v. BOARD OF REGISTRATION OF REAL ESTATE APPRAISERS.
    17-P-647
    Appeals Court of Massachusetts.
    Entered: July 16, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Robert J. Hadge, a certified residential real estate appraiser, appeals from a judgment of the Superior Court affirming the amended final decision and order of the board of registration of real estate appraisers (board). We affirm.

1. Prior proceedings. In May, 2010, Prospect Mortgage, LLC, C2C Appraisal Service (Prospect Mortgage), lodged a complaint against Hadge with the division of professional licensure. Prospect Mortgage alleged that "multiple appraisals assigned to [Hadge] have been inspected by other people in [his] office ... and [he] was not present during the physical inspection." Hadge fully cooperated with the ensuing board investigation.

On July 25, 2011, an order to show cause issued. Hadge, who was represented by counsel, entered into a stipulation agreement with the board; he conceded liability for certain violations and exercised his right to present mitigating evidence relevant to any sanction. On April 9, 2013, after taking administrative notice of "everything," including the stipulation agreement, an administrative hearing officer conducted a formal sanctions hearing. In her tentative decision, the hearing officer found the testimony of Hadge and his witnesses "credible and sincere," and left the choice of sanctions, if any, up to the board. See 801 Code Mass. Regs. § 1.01(11)(c) (1998). In its final decision and order, the board adopted the tentative decision without modification, and imposed a significant sanction.

On review in the Superior Court, a judge concluded that he was unable to evaluate whether the sanction was arbitrary and capricious or an abuse of the board's discretion. See G. L. c. 30A, § 14(7), and c. 112, § 190(D ). Accordingly, he ordered the case remanded to the board for an explanation as to how it "came to its conclusion" and how the sanction fit within past precedents. Following a remand hearing, the board, in its amended final decision and order, unanimously reaffirmed the sanction.

On cross-motions for judgment on the pleadings, a judge denied Hadge's motion, allowed the board's motion, and affirmed the board's amended final decision. This appeal followed. Over the board's objection, a judge extended the stay of the sanction pending the result of this appeal.

2. Substantial evidence. a. Stipulated facts. The board licensed Hadge to practice as a certified real estate appraiser in May, 1994. On five occasions between November, 2009, and April, 2010, Prospect Mortgage placed orders for Hadge -- and only Hadge -- to perform appraisals of certain properties located in Sharon, Dedham, Walpole, Dover, and Medford. In fact, the appraisals, including the physical inspections, were performed by Marilyn Ganame and Marie Limongelli. Hadge's electronic signature certifying that he had performed the actual work was affixed to the reports. The appraisal reports did not disclose to Prospect Mortgage either that other individuals had affixed Hadge's electronic signature or the fact that Limongelli and Ganame had performed the appraisals. Hadge did not give written authorization to his staff specific to these assignments to affix his signature to the reports. Hadge agreed that, even though his staff performed the affixing, he was liable for the appraiser's certifications contained in the reports. He also admitted that, by certifying in the reports that he had performed the appraisals, including physical inspections of the properties, he violated Uniform Standards of Professional Appraisal Practice (USPAP) ethics rules 1-1(b), 2-2(b)(vii), 2-2(b)(xi), 2-3 (2003) and G. L. c. 112, § 189(7). Finally, Hadge admitted that (1) his failure to maintain "sole and personal control" of his electronic signature, and (2) his failure to provide written authorization specific to these five assignments for another individual to affix his signature to the appraisal reports violated two of the board's regulations. See 264 Code Mass. Regs. §§ 6.02(3)(a) & (f) (2016).

b. Mitigation evidence credited by the hearing officer. Both Hadge and Jonathan Asker, Hadge's "fact" expert, provided the historical context in which the mistakes occurred. Following the national mortgage crisis, the adoption of the Home Valuation Code of Conduct in May, 2009, fundamentally changed the appraisal business. Appraisers no longer received their assignments from their individual clients. Overnight, Hadge's work orders began to come from appraisal management companies, each with different demands and requirements.

Due to lowered interest rates at the time, the appraisal business steadily increased, while, at the same time, the supply of certified real estate appraisers apparently declined. In general, more compliance issues were raised and appraisals were subjected to greater scrutiny. Appraisers received many more call backs from appraisal management companies seeking corrections of reports. Asker testified that, although there was "really no excuse" for the inadvertent mistakes, he could understand how they happened during that timeframe.

Hadge explained that he believed his signature inadvertently ended up on the reports because of a computer or "software" glitch, and he offered a letter from the software vendor, explaining how the mistakes in the signatures likely were made. Hadge's business practice was to allow his support staff to make changes to the appraisal reports that did not involve "appraisal" issues. To make those changes, his support staff always logged in under Hadge's name and, as required by the software, "unsigned" the report. After making changes, his support staff member re-signed the reports. Hadge testified that two of the appraisal reports (one completed by Ganame, one by Limongelli) initially went out to Prospect Mortgage with the correct names on them. When the support staff attempted to add Hadge's name as the supervising appraiser to these reports, the actual appraiser's name was deleted by the software program and Hadge's name appeared as the sole appraiser. With respect to the other three reports, Hadge assumed that his employees had realized that, after the reports were completed and signed, his errors and omissions policy needed to be added to them. After the changes were made, the program switched in Hadge's name as the appraiser because his support staff were logged-in under his name. The vendor subsequently updated the software to show the actual appraiser's log-in name on every single screen.

Soon after receiving notice of the complaint, Hadge implemented a procedure designed to prevent similar mistakes from happening in the future. No further complaints have been lodged against Hadge.

3. Board's substantive decisions. At all times, Hadge has blamed his predicament on software "defects" and errors. The board did not accept this characterization. In its first decision, the board explained that the most troubling aspect of Hadge's conduct was the assignment of the work to other appraisers despite clear instructions from the client to the contrary. This impropriety occurred before any software "glitch." The board noted that, in each case, the appraiser responsible for the work did not appear on the certification. The board concluded that Hadge's violations were significant enough to justify the full revocation of his license. However, the board concluded that the matter was "unique" and factually distinguishable from past board cases. Accepting Hadge's mitigating evidence, the board instead elected to impose a suspension, finding that "this [wa]s less an issue of trying to mislead clients as it [wa]s a failure of [Hadge] to be in control of what occurred in his office." The board emphasized, however, that "the substantial errors should not be minimized."

As directed by the Superior Court judge, on remand, the board provided further explanation of the reasoning that had led it to impose the eighteen-month suspension. First, the board again rejected Hadge's characterization of what had occurred, reiterating that "the matter went well beyond a software error." The board further explained what it meant by Hadge failing "to be in control." As the board viewed the matter, Hadge inappropriately delegated his appraisal responsibilities, allowing his unlicensed staff to make appraisal assignments, to make corrections to appraisals, and to affix signatures to completed appraisals. These facts, in the board's view, necessitated a significant sanction. Moreover, the board noted that this was not an isolated incident; Hadge violated the client's specific instructions on five occasions over the course of a six-month period. In the board's view, this was evidence of a systemic problem. The board indicated that "the numerous misrepresentations occurring over an extended period of time, even if not intentional, were substantial and strike at the heart of being a licensed appraiser such as [Hadge]." Given the agreed-upon facts and Hadge's admitted violations of Massachusetts statutory and regulatory law, as well as professional standards, the board concluded that the sanction was reasonable.

4. Standard of review. Our review of the board's disciplinary decision is circumscribed by statute and case law. We may not set aside an agency decision unless we determine that the board's decision was unlawful. See G. L. c. 30A, § 14(7)(a )-(g ). Here, Hadge has the burden to establish the invalidity of the board's decision. See Gauthier v. Director of the Office of Medicaid, 80 Mass. App. Ct. 777, 783 (2011). In evaluating the sanction, we must give due regard to the board's "experience, technical competence, and specialized knowledge." G. L. c. 30A, § 11(5). Where different views of the evidence are open, we may not substitute what we would consider a more appropriate sanction for the board's choice. See Gauthier, supra at 783. We may only interfere with the board's exercise of its broad discretion on a showing of extraordinary circumstances. See Lawless v. Board of Registration in Pharmacy, 466 Mass. 1010, 1012 (2013).

5. Discussion. After careful review, we discern no violation of Hadge's due process rights or error of law by the board. Hadge, it was found, had no intent to deceive or to mislead anyone. The appraisals were performed accurately by licensed appraisers employed by Hadge. However, in addition to admitting liability for electronic signature violations, Hadge also agreed that he was liable for the inaccurate appraiser's certifications in the five reports. Specifically, he stipulated that, by improperly certifying that he had performed the appraisals, including the physical inspections of the properties, he violated the industry ethics rule and standards, board regulations, and the statute that empowers the board to discipline certificate holders. See G. L. c. 112, § 189(7) ("failure ... to exercise reasonable diligence in developing an appraisal, preparing an appraisal report, or communicating an appraisal" is grounds for discipline). The hearing officer ruled that Hadge had notice of the charges against his license; and that, based upon all the findings of fact contained in the entire stipulation agreement, Hadge was subject to discipline for the statutory and regulatory violations. There is no evidence that the hearing officer disregarded any part of the stipulation agreement. In fashioning an appropriate sanction, the board was entitled, consistent with due process mandates, to rely on these stipulated facts and stipulated violations.

The incorrect information conveyed to the client by Hadge's certifications raised serious public policy concerns for the board and was an important factor in its sanction decision. As the board noted, Hadge's digitally signed certifications told the client that (1) the appraiser was aware of his ethical obligations; (2) the appraisal reflected "the opinion, analyses, and conclusions" of the appraiser selected by the client (Hadge); and (3) no other appraisers had provided significant appraisal work. The board agreed that, as Hadge earlier stipulated, the inaccurate certifications violated USPAP rule 1-1(b) (prohibiting appraisers in course of developing real property appraisal from committing "a substantial error of omission or commission that significantly affects an appraisal").

On remand, the board relied upon the undisputed evidence and referenced Hadge's "actions and inactions," his failure to be in control of what went on in his office, his "blind" delegation, and the duration of the misconduct as the important grounds for the significant sanction. Read in context, the phrase "multiple misrepresentations" alluded to the many inaccurate facts passed on to the client by means of the certifications. Hadge agreed that he was liable for these certifications, which the board described in its expertise as "the core of the appraisal world." As Hadge admitted in the stipulation agreement, his acts violated Massachusetts statutory and regulatory law. We are satisfied that Hadge was not disciplined for new charges in violation of his due process rights. It also follows from what we have said that there is no merit to Hadge's other legal arguments regarding the sanctions based upon the "dismissed" charges.

Hadge has failed to demonstrate any abuse of discretion in the board's choice of sanction. The board disciplined Hadge for much more than electronic signature errors. Hadge allowed his staff to make appraisal assignments, to correct appraisal reports, and to affix signatures. His staff missed the client's specific instructions limiting the assignments to Hadge, switched in Hadge's name as the appraiser as a result of a software "glitch," and failed to catch these errors before sending the final reports to the client. Hadge's delegation of his professional duties allowed these mistakes to happen. As a result, the board was warranted in finding that none of its prior disciplinary cases cited by Hadge were applicable or binding. In short, the facts of the case fall short of the extraordinary circumstances required to justify the reversal of the sanction.

The judgment of the Superior Court that affirmed the final amended decision of the board is affirmed.

Judgment affirmed.

      Prosecuting counsel's motion to amend the order was subsequently allowed. The amended order to show cause added new allegations and causes of action.

      The board suspended Hadge's license for eighteen months. In addition, the board conditioned reinstatement on (1) the completion of at least twenty-eight hours of continuing education and the taking of the national Uniform Standards of Professional Appraisal Practice (USPAP) course with examination; and (2) the payment of a civil penalty of $2,500. The board also mandated that Hadge serve a one-year probation period to commence upon the reinstatement of his license.

      Pursuant to an agreement between Hadge and the board, the sanction was stayed pending the review.

      That same year, Hadge incorporated his own business, R.J. Hadge Appraisals, Inc. At the time of the events that gave rise to the disciplinary action, Hadge, the company president, employed five other appraisers as well as three support staff.

      The orders listed Hadge as the assigned appraiser and contained the following instruction from the client: "Appraisals must be completed by the assigned appraiser, appraisals cannot be reassigned to other appraisers in your office." Prior to these orders, Hadge and some of his approved appraisers had performed work for Prospect Mortgage. Hadge acknowledged his error in not enlightening his staff about Prospect Mortgage's requirement (or for not being more aware of it).

      Hadge typically did not look at orders when they came in to the office. He delegated assignment duties to his office manager, Judy Lull, a nonappraiser. Lull assumed there was no restriction and, pursuant to office policy, assigned the work to the appraisers in the office most familiar with the subject territories. Ganame, a licensed appraiser, performed four of the appraisals. Limongelli, a certified residential real estate appraiser, performed one appraisal. The educational and work experience requirements for State certificates are more rigorous than those required for State licenses. See 264 Code Mass. Regs. §§ 5.03 & 5.04 (2016).

      None of the certified appraisal reports were included in the record. Pursuant to the Uniform Standards of Professional Appraisal Practice (USPAP) ethics rule 2-3 (2003), each appraisal report must contain a signed certification similar in content to the following form:
      "I certify that, to the best of my knowledge and belief:
      "[T]he statements of fact contained in this report are true and correct.
      "[T]he reported analyses, opinions, and conclusions are limited only by the reported assumptions and limiting conditions and are my personal, impartial, and unbiased professional analyses, opinions, and conclusions.
      "I have no (or the specified) present or prospective interest in the property that is the subject of this report and no (or the specified) personal interest with respect to the parties involved.
      "I have no bias with respect to the property that is the subject of this report or to the parties involved with this assignment.
      "[M]y engagement in this assignment was not contingent upon developing or reporting predetermined results.
      "[M]y compensation for completing this assignment [is] not contingent upon the development or reporting of a predetermined value or direction in value that favors the cause of the client, the amount of the value opinion, the attainment of a stipulated result, or the occurrence of a subsequent event directly related to the intended use of this appraisal.
      "[M]y analyses, opinions, and conclusions were developed, and this report has been prepared, in conformity with the Uniform Standards of Professional Appraisal Practice.
      "I have (or have not) made a personal inspection of the property that is the subject of this report. (If more than one person signs this certification, the certification must clearly specify which individuals did and which individuals did not make a personal inspection of the appraised property.)
      "[N]o one provided significant real property appraisal assistance to the person signing this certification. (If there are exceptions, the name of each individual providing significant real property appraisal assistance must be stated." (Emphasis added).

      The board regulations permit appraisers to authorize agents to affix their signatures to appraisal reports only if certain steps are taken. See 264 Code Mass. Regs. § 6.02(f) (2016). The authorized agent must be identified by name in the report; the report must state that the appraiser did not personally affix the signature, but rather authorized a specifically named person to do so; the appraiser must give written authorization specific to the particular assignment to the agent signing for the appraiser; and the written authorization is included in the work file and made available to the client. Hadge and his staff took none of these steps here.

      Many large banks who loaned money to Asker's individual clients promulgated a new policy limiting appraisal work to certified appraisers (certification policy).

      Judy Lull explained that, in that time, she fielded forty to fifty calls per day from clients requesting changes or addenda to appraisal reports. Based on these calls, she made minor changes to the appraisal reports.

      At Hadge's request, the software vendor provided a letter explaining revisions to the signature areas on the reports. During the remand hearing, the board entered the letter as an exhibit. According to the vendor, once reports are unsigned, all information is deleted from the supervisor's section. The purpose of the design is to protect changes being made to reports without the knowledge of the supervisors. The vendor further explained that "[d]ue to the software program design, if the person who is re-signing the supervisor's signature to the report does not apply the signature correctly to the right side of the appraisal report, the supervisor's information is applied to the left side of the report and overwrites the appraiser's information." The vendor informed Hadge that others had experienced difficulties with signatures switched from supervisor to actual appraiser.

      At an office meeting, Hadge instructed his staff to (1) make sure the appraiser assigned the work was acceptable to the client; (2) log in under the actual appraiser's name when affixing the electronic signature; (3) print out a hard copy of the appraisal report before sending it to the client; and (4) e-mail a copy of the report to the appraiser to verify that the correct signature appeared on the report.

      Contrary to the board's analysis, there was evidence in the transcript that Prospect Mortgage was "made aware that other appraisers were doing the work" on two of the orders. Hadge gave conflicting testimony about whether he or his office received telephone calls about these two orders from Prospect. The hearing officer did not mention these aspects of Hadge's testimony in her decision. In any event, even if two reports initially were submitted to Prospect Mortgage with the correct appraiser names on them, the amended reports submitted to Prospect contained Hadge's certifications and omitted any reference to the work of Ganame and Limongelli.

      Indeed, the testimony of Lull, Hadge's office manager, supported this finding. Lull testified that "everything was so busy and new back then [in 2009-2010]" that she was unaware that the software glitch was happening.

      The fraud and misrepresentation charges included originally required a showing of intent that was not demonstrated on the agreed-upon facts. See, e.g., G. L. c. 112, § 189(5) ("an act or omission involving dishonesty, fraud, or misrepresentation with the intent to substantially benefit the certificate or license holder or another person or with the intent to substantially injure another person" is grounds for discipline). Pursuant to the stipulation agreement, those charges were dismissed. Nor were they revived by the board in subsequent proceedings and unfairly used to discipline Hadge.

      These agreed-upon facts covered Prospect Mortgage's five work orders for Hadge -- and only Hadge -- to perform the appraisals, the physical inspections and appraisals performed by other appraisers in contravention of explicit orders, and the admitted violations of the USPAP ethics rule and five USPAP standards, and the statutory and regulatory violations. Pursuant to board regulation, all appraisers are required to follow USPAP standards of practice. See 264 Code Mass. Regs. § 11.01(1) (2016).

      Moreover, the board did not engage in "rank speculation" about Hadge possibly violating the certification policy. The board expressly acknowledged that there was no evidence as to whether Prospect Mortgage had adopted the policy. As the board properly reasoned, the existence of such a policy "serve[d] to highlight the importance of adhering to client assignments and using adequate certifications."


text:
    Thomas E. YAHOUB'S CASE
    17-P-796
    Appeals Court of Massachusetts.
    Entered: July 16, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The employee, Thomas E. Yahoub, appeals from a decision of the reviewing board of the Department of Industrial Accidents (reviewing board) affirming an administrative judge's decision denying his claim for incapacity and medical benefits. The employee primarily argues that the reviewing board erred in determining that the insurer could not be collaterally estopped from litigating facts previously resolved in the employee's favor before the Division of Unemployment Assistance (DUA). We affirm.

Background. The employee began working in 1999 as a custodian for the public schools in the town of Milton (town). On December 28, 2004, he was injured in an altercation with his supervisor. Following an investigation into the incident, the town concluded that the employee was the aggressor and terminated his employment. In February, 2005, the employee applied for unemployment compensation benefits with the DUA. After an evidentiary hearing, the DUA found that the employee did not initiate the altercation and awarded him benefits on the ground that the town had failed to prove "deliberate misconduct in willful disregard of the employing unit's interest." The town appealed to the District Court, which affirmed the DUA's decision.

In August, 2007, the employee filed with the Department of Industrial Accidents (DIA) a claim for workers' compensation benefits, alleging severe emotional distress due to the December, 2004, altercation. A hearing under G. L. c. 152, § 11, was held over four days before an administrative judge and included testimony from the employee, the supervisor, and a witness to the altercation. The insurer, Massachusetts Interlocal Insurance Association, argued, inter alia, that the employee was not entitled to benefits because (1) his actions constituted serious and wilful misconduct under G. L. c. 152, § 27 ; and (2) his firing was a bona fide personnel action pursuant to G. L. c. 152, § 1(7A). After the first hearing day, the employee moved, under the doctrine of collateral estoppel, to prevent the insurer from relitigating the facts found by the DUA. Noting a lack of privity between the parties in the two proceedings, the administrative judge denied the motion. The administrative judge ultimately found that the employee initiated the altercation and denied his claim under both statutory provisions raised by the insurer. The employee appealed to the reviewing board, which, relying primarily on Tuper v. North Adams Ambulance Serv., Inc., 428 Mass. 132 (1998) (Tuper ), agreed with the administrative judge's collateral estoppel ruling and affirmed the decision. This appeal ensued.

Discussion. We review a decision by the reviewing board to determine whether it is "based on an error of law, or is arbitrary, capricious, or otherwise not in accordance with law." Wilson's Case, 89 Mass. App. Ct. 398, 400 (2016). The employee claims error in the reviewing board's holding that collateral estoppel does not apply to the insurer. Specifically, he contends that lack of privity is irrelevant because the town was a party to both proceedings and that the elements of collateral estoppel are met as to the town. We disagree.

"Before a party will be precluded from relitigating an issue, a court must determine that (1) there was a final judgment on the merits in the prior adjudication; (2) the party against whom preclusion is asserted was a party (or in privity with a party) to the prior adjudication; and (3) the issue in the prior adjudication was identical to the issue in the current adjudication." Tuper, supra at 134.

Even assuming, without accepting, that both of the employee's premises are correct, the insurer's lack of privity with a party to the prior adjudication prevents the application of collateral estoppel against it here. As noted above, collateral estoppel requires a plaintiff to demonstrate, among other elements, that said litigant "was a party (or in privity with a party) to the prior adjudication." Ibid. Indeed, it violates due process for a prior judgment to bind a litigant "who was not a party or a privy and therefore has never had an opportunity to be heard." Massachusetts Property Ins. Underwriting Assn. v. Norrington, 395 Mass. 751, 754 (1985) (Norrington ) (quotation omitted). Thus, to prevent the insurer from litigating the factual issues in this case, the employee had to establish the elements of collateral estoppel as to the insurer, not just the town. See id. at 754-756.

Here, the employee concedes that the insurer was not a party to the unemployment proceedings, and we agree with the reviewing board that he failed to demonstrate privity. Privity may be established by showing that the relevant party to the present action exerted "substantial control" over a party to the prior action. See Bourque v. Cape Southport Assocs., 60 Mass. App. Ct. 271, 275 (2004). Here, however, the employee has presented no evidence that the insurer exerted any control over a party to the prior action, let alone "substantial control." Ibid. That two parties may have been "interested in proving or disproving the same facts" is not enough to create privity. Norrington, supra. Consequently, the reviewing board did not err in concluding that the employee could not collaterally estop the insurer from contesting the facts of this case. See Tuper, 428 Mass. at 134.

Although we could end our analysis there, we note that the reviewing board's decision comports with the fairness and policy considerations discussed in Tuper. See id. at 136-137. Lack of privity notwithstanding, it would have been unfair to apply preclusive effect to the DUA's decision given the small "stake[s]" of that adjudication relative to those before the DIA. Id. at 136. Moreover, allowing successful DUA claimants to utilize offensive collateral estoppel in worker's compensation actions -- which carry potential G. L. c. 152, § 28, ramifications -- would "force[ ]" employers "to litigate unemployment compensation claims to the hilt," contravening "the objective, and even the Federal mandate, of promptly resolving such claims." Id. at 137.

Decision of reviewing board affirmed.

      The employee sought incapacity benefits under G. L. c. 152, §§ 34, 34A, and 35, and medical benefits under §§ 13 and 30.

      The insurer is a public employer workers' compensation self-insurance group. See G. L. c. 152, § 25E.

      Having decided this case on privity grounds, we need not address the employee's contention that the reviewing board erred in holding that G. L. c. 151A, § 46, precludes the introduction of DUA materials in subsequent DIA proceedings.


text:
    COMMONWEALTH v. John M. HUTCHINSON, Jr.
    17-P-828
    Appeals Court of Massachusetts.
    Entered: July 16, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury trial, the defendant was convicted of operating a motor vehicle while under the influence of alcohol (OUI). On appeal, he claims that an error in the judge's preliminary jury instructions resulted in a substantial risk of a miscarriage of justice. We affirm.

Prior to opening statements and hearing testimony, the judge explained the mechanics of the trial to the jury. Relative to objections, he stated:

"If I agree with an objection to a question the term I'll use is sustained. You are [to] disregard that question and you're not to speculate as to what the answer may or may not have been. In the same way, you are to disregard any evidence that I tell you is stricken from the record. If I reject or overrule an objection I'm going to permit the witness to answer and you may not consider that answer and you're not to give that answer any more weight than you would have if no objection had been made" (emphasis supplied).

There was no objection to this instruction, and thus, we review to determine if there was any error, and if so, whether that error created a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 297 (2002).

To make this determination, we ask four questions:

"(1) Was there error? (2) Was the defendant prejudiced by the error? (3) Considering the error in the context of the entire trial, would it be reasonable to conclude that the error materially influenced the verdict? (4) May we infer from the record that counsel's failure to object or raise a claim of error at an earlier date was not a reasonable tactical decision?"

Id. at 298 (citations omitted). "Only if the answer to all four questions is 'yes' may we grant relief." Ibid. Commonwealth v. Coutu, 88 Mass. App. Ct. 686, 693 (2015).

Despite the Commonwealth's argument that the charge read as a whole left the jury with a proper understanding of objected-to evidence, see Commonwealth v. Grant, 418 Mass. 76, 85 (1994) ("adequacy of instructions must be determined in light of their over-all impact on the jury" [quotation omitted] ), it was error to instruct the jury that they could not consider a witness's answer to a question that was the subject of an overruled objection. See Commonwealth v. Cameron, 385 Mass. 660, 668 (1982) ("Jurors are expected to follow instructions to disregard matters withdrawn from their consideration").

Although we conclude there was error, when we consider the error in the context of the entire trial, it would not be reasonable to conclude that the error prejudiced the defendant or materially influenced the verdict. See Randolph, supra at 299-300. The defendant points to two incidents where he claims an overruled objection on cross-examination risked a miscarriage of justice. First, the defendant asked the first officer whether the defendant slurred less in the booking video than he had at roadside. The prosecutor objected, which was overruled, and the officer responded that the defendant slurred less in the video. However, prior to objection, the officer had already (on more than one occasion), described the defendant's level of slurring, including that he slurred less in the video. Indeed, the prosecutor's objection was that the question had been asked and answered.

Second, when the defendant asked the same officer whether mixing medications and alcohol would affect sobriety, the officer replied that he could not testify to that. After the officer's answer, the judge overruled the prosecutor's late objection. However, prior to this exchange, defense counsel had elicited that the officer did not ask the defendant what medication he was taking for his multiple sclerosis. Also, after the overruled question, defense counsel elicited that it does matter whether someone is taking medication. Given the point of the inquiry -- how the defendant's medication could have caused his symptoms of impairment -- the defendant was not prejudiced and the verdict was not materially influenced in light of the other salient facts the jury heard on the matter before and after the overruled objection.

Another evaluation of prejudice to the defendant requires us to look at the strength of the Commonwealth's case. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). Although not overwhelming, due to the absence of field sobriety tests or breathalyzer results, the evidence supporting the defendant's guilt was abundant. He was driving at a rate well in excess of the posted speed limit, had difficulty following the officer's instructions to produce the proper documents upon being stopped, avoided eye contact and shook excessively, slurred his speech, had bloodshot and glassy eyes, was unsteady on his feet, and had the smell of alcohol emanating from his person. There were alcohol containers in the car, including at least one that appeared to have been consumed recently, as well as an admission from the defendant that he had consumed one to two alcoholic beverages earlier. See Commonwealth v. Dussault, 71 Mass. App. Ct. 542, 543-545 (2008). Because we do not answer all four of the Randolph inquires in the affirmative, there is no substantial risk that justice miscarried. See Randolph, 438 Mass. at 298 ; Commonwealth v. Arias, 84 Mass. App. Ct. 454, 469 (2013).

Judgment affirmed.

      The defendant was also found guilty of negligent operation of a motor vehicle, but a judgment notwithstanding the verdict was entered on that verdict without objection from the Commonwealth.

      The defendant also claims that the judge's instruction on field sobriety tests, where no such tests were conducted, and his instruction on inconsistent statements, which he claims was "not an error," contributed to the substantial risk that justice miscarried. We disagree. First, both arguments are presented in a conclusory fashion without supporting authority and are, therefore, waived. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). Second, even if not waived, we fail to see how either harmed the defendant, let alone created a substantial risk of a miscarriage of justice.


text:
    COMMONWEALTH v. Alex BAEZ.
    16-P-1134
    Appeals Court of Massachusetts.
    Entered: July 13, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Also known as Alex Perez.

   A jury convicted the defendant, Alex Baez, of assault and battery, G. L. c. 265, § 13A(a ). At trial, the defendant argued that he acted in self-defense, and he requested and was granted a self-defense instruction. On appeal, he asserts that the judge improperly instructed the jury on the elements of self-defense, challenging specifically that the judge's supplemental instruction improperly included when one can use deadly force -- an instruction not applicable to the charge against him. In the absence of an objection, we affirm.

Background. The jury could have found that the defendant punched the victim twice during an argument. At trial, the defendant testified that he did so because the victim grabbed his arm during the argument. On this basis, the judge properly found that a self-defense instruction was warranted. See Commonwealth v. Harrington, 379 Mass. 446, 450 (1980).

In her general instructions to the jury, the judge charged, in relevant part:

"To prove that the defendant did not act in self-defense, the Commonwealth must prove one of the following things beyond a reasonable doubt: One, that the defendant did not reasonably believe he was being attacked or immediately about to be attacked and that his safety was in immediate danger ...."

The judge also gave a supplemental instruction, which included that "[t]he Commonwealth may prove that the defendant did not act in self-defense by proving beyond a reasonable doubt that there was no overt act, either words, a gesture[,] or some other action that gave rise to a reasonable belief of attack or immediate danger of great bodily harm." The jury convicted the defendant, and this appeal followed.

Discussion. Once the defendant raised an issue of self-defense, as the defendant did here, the Commonwealth bore the burden of disproving at least one of the elements. Id. at 452. That burden included disproving that the defendant acted in "reasonable apprehension" for his safety. Commonwealth v. Galvin, 56 Mass. App. Ct. 698, 702 (2002). As the defendant correctly points out, there are two "mutually exclusive" standards for reasonable apprehension depending upon the type of force the defendant used. Commonwealth v. Walker, 443 Mass. 213, 217 (2005). The distinction lies in whether the force used was deadly or nondeadly. Commonwealth v. Pike, 428 Mass. 393, 395 (1998).

A defendant may use deadly force if he "had reasonable ground to believe and actually did believe that he was in imminent danger of death or serious bodily harm." Commonwealth v. Toon, 55 Mass. App. Ct. 642, 645 (2002). In contrast, a defendant's right to use nondeadly force, the applicable standard here, arises at a "somewhat lower level of danger." Pike, supra (citation omitted).

The right to use nondeadly forces arises if a defendant has "a reasonable concern over his own safety," Commonwealth v. Baseler, 419 Mass. 500, 504 (1995), due to some overt threatening act. Commonwealth v. Alebord, 49 Mass. App. Ct. 915, 916 (2000). There is no allegation that the defendant used deadly force, therefore, only the instruction on the use of nondeadly force was applicable here. Baseler, supra at 503-504.

Here, the judge's supplemental instruction included language pertaining to the more stringent standard applicable only in the use of deadly force. We agree with the defendant that this additional language was superfluous and erroneous. See Commonwealth v. Noble, 429 Mass. 44, 46-47 (1999). See also Baseler, supra. However, because the defendant did not object to the judge's instructions at trial, we review for whether the error created a substantial risk of a miscarriage of justice. Commonwealth v. Arias, 84 Mass. App. Ct. 454, 464 (2013). And in our view, the error did not create a substantial risk of miscarriage of justice for two reasons.

First, the challenged language was only a small portion of a larger proper charge to the jury. In addition to the erroneous language, the judge also properly instructed that:

"[a] person cannot lawfully act in self-defense unless he is attacked or is immediately about to be attacked. The Commonwealth may prove that the defendant did not act in self-defense by proving beyond a reasonable doubt that there was no overt act, either words, a gesture[,] or some other action that gave rise to a reasonable belief of attack ...."

Therefore, reading the instruction as a whole, as we must, see Commonwealth v. Allen, 474 Mass. 162, 168 (2016), the instruction properly placed the burden on the Commonwealth to disprove that the defendant acted in reasonable apprehension. Contrast Baseler, supra at 503 n.4 & 506 (reversible error when judge improperly instructed jury as to use of deadly force and never instructed on nondeadly force).

Second, the strength of the Commonwealth's case precludes us from concluding that a substantial risk of miscarriage of justice was created. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999) (to determine risk of miscarriage of justice appellate court considers strength of Commonwealth's case). This was not a case of simply the victim's word against the defendant's but, rather, the victim's account was corroborated by an eyewitness, who testified that the defendant punched the victim twice without provocation. Accordingly, we affirm.

Judgment affirmed.

      The defendant was charged with assault and battery by means of a dangerous weapon causing serious bodily injury, but was convicted of the lesser included offense. The greater charge arose from the victim's claim that the defendant attacked him with a steel pipe.

      The elements of self-defense are: (1) a reasonable apprehension for one's safety; (2) an inability to retreat (subject to the "castle law" statute); and (3) nonexcessive force. See Commonwealth v. Galvin, 56 Mass. App. Ct. 698, 702 (2002). The Commonwealth need only disprove one.


text:
    COMMONWEALTH v. Kevin MWANGI.
    18-P-122
    Appeals Court of Massachusetts.
    Entered: July 23, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   In 2013 the defendant admitted to sufficient facts to support charges of possession of a class B substance and conspiracy to violate drug laws. The case was continued without a finding (CWOF) for six months. Several years later, the defendant moved for a new trial, arguing that plea counsel was constitutionally ineffective for failing to advise him of the immigration consequences of the pleas. After a nonevidentiary hearing, the same judge who accepted the pleas denied the motion. The defendant now appeals. We reverse.

We review a judge's decision on a motion for new trial "to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Lavrinenko, 473 Mass. 42, 47 (2015), quoting from Commonwealth v. Grace, 397 Mass. 303, 307 (1986). "That discretion, however, is not boundless and absolute." Commonwealth v. Kolenovic, 471 Mass. 664, 672 (2015), quoting from Commonwealth v. Genius, 402 Mass. 711, 714 (1988). "While we will not disturb a judge's subsidiary findings which are warranted by the evidence, 'ultimate findings and conclusions of law, particularly those of constitutional dimensions, are open for our independent review.' " Commonwealth v. Cousin, 478 Mass. 608, 615 (2018), quoting from Commonwealth v. Walter, 396 Mass. 549, 553-554 (1986).

To establish a claim of ineffective assistance of counsel, the defendant must "show[ ] that his attorney's performance fell 'measurably below that which might be expected from an ordinary fallible lawyer,' and that he suffered prejudice because of his attorney's unprofessional errors." Lavrinenko, 473 Mass. at 51, quoting from Commonwealth v. Clarke, 460 Mass. 30, 45 (2011). The Commonwealth concedes that the motion judge erred in concluding that plea counsel provided proper advice to the defendant regarding the immigration consequences of his pleas. See Lavrinenko, 473 Mass. at 51-54 ; Commonwealth v. Henry, 88 Mass. App. Ct. 446, 452-454 (2015). Thus, we need only decide whether the defendant was prejudiced.

In order to prove prejudice, the defendant must "convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Clarke, 460 Mass. at 47, quoting from Padilla v. Kentucky, 559 U.S. 356, 372 (2010). This requires the defendant to show "that (1) he had an 'available, substantial ground of defence,' Commonwealth v. Saferian, [366 Mass. 89,] 96 [1974], that would have been pursued if he had been correctly advised of the dire immigration consequences attendant to accepting the plea bargain; (2) there is a reasonable probability that a different plea bargain (absent such consequences) could have been negotiated at the time; or (3) the presence of 'special circumstances' that support the conclusion that he placed, or would have placed, particular emphasis on immigration consequences in deciding whether to plead guilty. Hill v. Lockhart, [474 U.S. 52,] 60 [ (1985) ]." (Footnote omitted.) Clarke, 460 Mass. at 47-48

The motion judge concluded that the defendant failed to establish prejudice because his pleas were "nothing short of a gift to the defendant, and one which no reasonable person would not have taken advantage of." The relevant test, however, is "not whether the defendant was satisfied with the plea bargain at the time, having received inadequate advice about the immigration consequences of a conviction, but whether there is a reasonable probability that, in the absence of counsel's errors, a reasonable person in the defendant's position would have chosen to go to trial ... rather than accept the plea offer." Lavrinenko, 473 Mass. at 61 n.22. For a defendant facing deportation, "[e]ven a small chance of acquittal may be sufficient to show that it was reasonably probable that a person in the position of the defendant would have rejected the plea and insisted on going to trial." Id. at 63. See Commonwealth v. DeJesus, 468 Mass. 174, 184 (2014) ("If an assessment of the apparent benefits of a plea offer is made, it must be conducted in light of the recognition that a noncitizen defendant confronts a very different calculus than that confronting a United States citizen").

We conclude here that the defendant met his burden of showing an available substantial ground of defense -- a motion to suppress -- that he would have pursued had he been advised correctly of the immigration consequences of the pleas. "To show that a 'substantial defense' was available, the defendant need not show that it was more likely than not that such a defense would have resulted in acquittal." Lavrinenko, 473 Mass. at 57 n.19. "The Supreme Court ... requires only that a defendant could have rationally gone to trial in the first place, and it has never required an affirmative demonstration of likely acquittal at such a trial as the sine qua non of prejudice." Ibid., quoting from United States v. Orocio, 645 F.3d 630, 643 (3d Cir.2011), abrogated on other grounds by Chaidez v. United States, 568 U.S. 342 (2013).

In DeJesus the Supreme Judicial Court affirmed the allowance of a motion for new trial, based in part on the judge's findings that the defendant could have filed a motion to suppress that "had significant support in the evidence and law." 468 Mass. at 183. The Commonwealth contends that DeJesus is distinguishable because the judge in this case did not make similar findings. But the judge's statements at the hearing on the motion for a new trial can be read to mean that he found a motion to suppress to constitute a substantial ground of defense. Specifically, when defense counsel offered to explain why a motion to suppress was viable, the judge stated that he did not need to hear about it further, telling counsel, "I've read it in your [motion for a new trial]. I see there was -- it was a result of a stop, and there could've been, certainly, a challenge -- well, at least arguably, there could've been a challenge on the basis of search and seizure. I agree."

Furthermore, even assuming that the judge did not so find, the viability of a motion to suppress depends solely on questions of law, as applied to undisputed facts in the record. An evidentiary hearing and factual findings were therefore not necessary on this point. See Commonwealth v. Sylvain, 483 Mass. 872, 839 (2016); Commonwealth v. Gordon, 82 Mass. App. Ct. 389, 395 (2012). While we need not decide the motion to suppress itself, having reviewed the parties' briefing on the issues that would have been raised therein, we independently conclude that such a motion would have been a substantial ground of defense. Though it may not have resulted in suppression and acquittal, it was at least substantial enough to make it rational for the defendant to have rejected the pleas. See DeJesus, 468 Mass. at 183-184.

This is especially so when we "take into account the particular circumstances informing the defendant's desire to remain in the United States." Id. at 184 (quotation omitted). Though the judge made no findings on this point, he also did not reject the defendant's affidavit detailing his special circumstances. In the context of this case, we do not agree with the Commonwealth that the absence of findings precludes us from considering the affidavit. The Commonwealth did not file a written opposition to the motion, nor did it contest the facts in the affidavit. We are not barred from considering uncontested facts in the record that the judge implicitly accepted. See Sylvain, 473 Mass. at 839 ; Gordon, 82 Mass. App. Ct. at 395.

Moreover, there is evidence corroborating much of the defendant's affidavit, including his allegation that immigration concerns were of specific concern to him when he entered the pleas. Based on our review of the record, we conclude that there is no genuine dispute as to at least the following facts. At the time of the pleas, the defendant was twenty-one years old, a lawful permanent resident, and attending college on scholarship. He arrived in this country from Kenya when he was fourteen years old to live with his mother, who is HIV positive. The defendant and his mother are very close, as detailed in a psychodiagnostic evaluation report. According to the report, both the defendant and his mother would fear for his safety and suffer extreme emotional hardship were he forced to leave the United States and return to Kenya.

In light of these uncontested facts, and the availability of a substantial defense, the record "provide[s] a sufficient basis on which to conclude that there was a reasonable probability that, but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial." Sylvain, 473 Mass. at 833-834 (quotation omitted). See DeJesus, 468 Mass. at 184 (judge properly allowed motion to withdraw plea where defendant had viable motion to suppress and "he had been in the country since he was eleven years old, his family was in Boston, and he had maintained steady employment in the Boston area"). Cf. Lee v. United States, 137 S. Ct. 1958, 1964, 1968-1969 (2017) (though defendant had no viable defense at trial, it would not have been irrational to reject plea offer where he placed paramount importance on avoiding deportation). The order denying the motion for new trial is therefore reversed, the CWOF dispositions are vacated, and the defendant's admissions to sufficient facts are set aside.

So ordered.

Reversed in part; vacated in part and set aside.

      Although the defendant styled his motion as one to "withdraw admission and vacate convictions," in fact, the charges against him were dismissed in March of 2014. We treat the motion as one for a new trial under Mass.R.Crim.P. 30, as appearing in 435 Mass. 1501 (2001). See Commonwealth v. Muniur M., 467 Mass. 1010, 1011 (2014).

      As the analysis for withdrawing an admission to sufficient facts is essentially the same as that for withdrawing a guilty plea, we use the terms "admission" and "plea" interchangeably.

      On June 25, 2018, the defendant filed an assented-to motion to waive oral argument, then scheduled for July 10, 2018, and for the issuance of a decision by June 27, 2018, in light of his imminent deportation. We allowed that motion and on June 26, 2018, issued an order reversing the order denying the motion for a new trial. This memorandum and order states the reasons for our June 26 order.

      The order entered on the Appeals Court docket on June 26, 2018, is hereby modified to be consistent with this language.


text:
    COMMONWEALTH v. Andrew W. CROWTHER, Jr., & others.
    17-P-29
    Appeals Court of Massachusetts.
    Entered: July 23, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Kathleen J. Burke; Kilgore Insurance Agency; Cyrus A. Kilgore; and Jeffrey B. Kilgore. We refer to Kilgore Insurance Agency (KIA), Cyrus A. Kilgore, and Jeffrey B. Kilgore collectively as the KIA defendants.

   The Attorney General brought an action on behalf of the Commonwealth pursuant to G. L. c. 93A, § 4, alleging that the defendants engaged in deceptive business practices against purchasers of surplus lines insurance. The Commonwealth contended that, for years, the defendants charged their clients hidden agency fees by altering or withholding legal documents. Following a twenty-two day jury-waived trial, a judge of the Superior Court determined that defendant Andrew Crowther's active concealment of agency fees was a deceptive practice in violation of c. 93A. However, the judge found codefendant Kathleen Burke not liable. The judge ordered Crowther to "pay damages in the nature of restitution," which represented "any money Crowther received above a twenty percent commission." The judge also ruled that the KIA defendants were vicariously liable for Crowther's actions, on the basis of apparent authority. Final judgment entered in the amount of $2,183,637.30 plus statutory interest against Crowther and the KIA defendants. All parties except Burke have appealed. After comprehensive review of the substantial record before us, we affirm.

1. Standard of review. Where, as here, the judge served as the finder of fact, her findings must stand "unless clearly erroneous." Mass.R.Civ.P. 52(a), as amended, 423 Mass. 1402 (1996). We give due regard to the judge's ability to assess the credibility of the witnesses, an opportunity not available to us. See Crown v. Kobrick Offshore Fund, Ltd., 85 Mass. App. Ct. 214, 224 (2014). A finding is not clearly erroneous if it is "supported on any reasonable view of the evidence, including all rational inferences of which it was susceptible." Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 510 (1997) (quotation omitted).

2. Background facts. We recite the facts as found by the trial judge, supplemented where necessary by undisputed evidence from the record. We reserve additional procedural facts relating to the KIA defendants' appeal for later discussion.

a. Surplus lines insurance and placement. We start with a brief overview of the surplus lines insurance industry. Surplus lines insurance carriers fill a niche for higher risk clients who are unable to obtain insurance in the standard or admitted markets. In a typical surplus lines transaction, a client in need of insurance contacts a retail broker like Crowther. In turn, the retail broker speaks to one or more wholesale brokers, seeking the best bottom-line price for the client. After checking with the surplus lines insurance carriers that provide the desired coverage, the wholesale broker provides the retail broker with a written quote, which is then relayed to the client. Ordinarily, the bottom-line premium price contained in the quote includes a commission for the brokers. If the client agrees to the terms of the quote, the insurer or wholesale broker issues a "binder" to the retail broker, who relays that document to the insured to formalize the coverage. Since the premium owed to the insurer must be paid up front, retail brokers often offer premium financing through separate companies. Additionally, within twenty days of procurement, the wholesale broker must file a surplus lines affidavit signed by the insured, or their authorized designee, with the Division of Insurance (DOI). See G. L. c. 175, § 168.

b. Crowther's relationship with KIA. In late 1995 or early 1996, Crowther began his affiliation with defendants Jeffrey and Cyrus Kilgore as an in-house insurance producer. Specializing in surplus lines, Crowther agreed to split his compensation with their agency in exchange for, among other things, office space, supplies, and administrative services. Jeffrey and Cyrus assigned several customer service representatives, including defendant Kathleen Burke, to assist him.

Although Crowther was the main point of contact for his clients, KIA's name -- not Crowther's -- appeared on all major insurance documents. For example, KIA billed Crowther's clients directly using the KIA invoicing system, and then paid Crowther his share. Insurance binders, surplus lines affidavits, and premium finance agreements always listed KIA as the "producer," "broker," or "agency." Cyrus signed the affidavits and binders, and either Cyrus, Jeffrey, or Burke signed the finance agreements. Additionally, when Crowther communicated with his clients, he used the KIA telephone number as well as the KIA computer network, and included the KIA name in his electronic mail (e-mail) signature line.

c. Crowther's business practices. Crowther routinely rolled agency fees into the premiums established by the insurance carriers, and presented the augmented figure to his clients as "the total cost." In Crowther's view, his clients were interested only in obtaining the lowest bottom-line price. Nevertheless, Crowther took active steps to conceal the undisclosed agency fees from these clients. First, Crowther (or more often the customer service representatives performing clerical functions at his direction) "whit[ed] out" the premiums set forth on the policy declarations pages and inserted the total cost figures quoted to and accepted by his clients. Second, Crowther created invoices, outside the usual invoicing system, showing total cost instead of the true premium set by the insurer. Third, Crowther routinely signed, without authorization, the insureds' names to the surplus lines affidavits (which contained the true premiums). Fourth, Crowther either altered the premium finance agreements by removing any reference to the true premiums and agency fees, or failed to mail to the insureds the third page of the agreements containing the true premium. As the judge found after hearing the evidence, these practices occurred when there were no formal laws or regulations regarding "fees which [could] be charged for surplus lines insurance placement, disclosure of those fees[,] or recalculation by the retail broker of the 'premium' set by the insurer."

With all of this in mind, the judge found that Crowther "deliberately kept his clients in the dark as to matters which directly impacted the cost of the clients' insurance." He did so, according to the judge, to deprive them of the opportunity to negotiate his compensation.

3. Rulings of law. The judge concluded that Crowther's active concealment of the agency fees, "particularly considering the size of the agency fee in most instances," was a deceptive practice that violated c. 93A. The judge reasoned that Crowther's actions had the capacity to mislead his clients and prospective clients to act differently from the way they otherwise would have acted (i.e., purchasing insurance policies that they might not have purchased if they were aware of Crowther's fees). See Purity Supreme, Inc. v. Attorney Gen., 380 Mass. 762, 777 (1980) ; Aspinall v. Phillip Morris Cos., 442 Mass. 381, 394 (2004).

4. Discussion. a. Commonwealth's appeal. i. Twenty percent commission retention. The Commonwealth first contends that the judge erred in fashioning the restitution remedy, and in failing to require full disgorgement of all fees acquired by the defendants. We disagree. Pursuant to G. L. c. 93A, § 4, as appearing in St. 1969, c. 814, § 3, a judge may "make such ... orders or judgments as may be necessary to restore to [the injured parties] any moneys ... which may have been acquired by means of [the unlawful acts]." This permissive language allows the courts to use their traditional equity power to tailor appropriate remedies to the facts of each case. See Commonwealth v. DeCotis, 366 Mass. 234, 245 (1974). See also Kattar v. Demoulas, 433 Mass. 1, 17 (2000) ("[Chapter] 93A provides the possibility for broad, far-reaching equitable relief"). Restitution is one recognized equitable remedy in a § 4 case. See DeCotis, 366 Mass. at 244-245 ; Commonwealth v. AmCan Enterprises, Inc., 47 Mass. App. Ct. 330, 337 (1999). Thus, contrary to the Commonwealth's claim, neither the language of § 4, nor anything in our case law, required the judge to select the complete disgorgement of profits as the damages remedy.

Moreover, on the facts of this case, the judge did not abuse her broad discretion in fashioning a remedy that required the defendants to turn over all profits above a twenty percent commission. See Demoulas, 433 Mass. at 17-18. See also Augustine v. Rodgers, 47 Mass. App. Ct. 901, 902 (1999) ("That rescission was an available remedy does not lead to the conclusion that it was required.... [R]escission is an equitable remedy awarded at the discretion of the court"). Indeed, the evidence showed that placing surplus lines policies is "work-intensive"; that the standard ten percent commission is far less than that on other lines of insurance, which rises to thirty to forty percent in some cases; that there is little rationale underlying the various sizes of these commissions; and that some surplus lines retail brokers actually do charge a twenty percent fee. Under these circumstances, the restitution awarded was an appropriate remedy. See Keller v. O'Brien, 425 Mass. 774, 778 (1997).

ii. Burke's liability. The Commonwealth next argues that the judge erred as a matter of law by failing to extend c. 93A liability to Burke. See R.W. Granger & Sons, Inc. v. J & S Insulation, Inc., 435 Mass. 66, 73 (2001) ("A ruling that conduct violates G. L. c. 93A is a legal, not a factual, determination"). In declining to hold Burke liable, the judge reasoned that Burke was following the directions of her supervisor, and neither planned nor had a financial stake in his business practices. We conclude that the judge did not err as a matter of law in ruling that Burke's administrative role in Crowther's scheme did not rise to the level of unscrupulous conduct contemplated by c. 93A. See DeCotis, 366 Mass. at 242 ; Turnpike Motors, Inc. v. Newbury Group, Inc., 413 Mass. 119, 131 (1992) ; Beverly v. Bass River Golf Mgmt., Inc., 92 Mass. App. Ct. 595, 606 (2018).

To the extent that the Commonwealth challenges the judge's subsidiary findings, they were amply supported by Burke's testimony and the reasonable inferences that could be drawn from it. See Edinburg v. Edinburg, 22 Mass. App. Ct. 199, 203 (1986), quoting from New England Canteen Serv., Inc. v. Ashley, 372 Mass. 671, 675 (1977) ("[T]he judge's assessment of the quality of the testimony is entitled to our considerable respect because 'it is the trial judge who, by virtue of [her] firsthand view of the presentation of evidence, is in the best position to judge the weight and credibility of the evidence' ").

First, Burke performed administrative and clerical tasks working under Crowther's direction and control. Before Crowther's arrival, Burke did not "work that much with surplus lines." As instructed by Crowther upon his arrival, Burke consistently used a "total cost" figure on all paperwork she generated for him for presentation to his clients. She did not question Crowther about the reasons underlying his instructions; she just followed them. In addition, Burke understood from Crowther's instructions "to go ahead and place the insurance" that (a) he had explained the purposes of the surplus lines affidavits to the clients; and (b) had obtained their authorization for Crowther (and his assistants) to sign them.

According to Burke, she was not involved in establishing premiums or setting the agency fees charged to Crowther's clients. She had no substantive conversations with Crowther's clients and was not privy to what Crowther told them; and in light of her knowledge of industry customs and practices, she did not believe that she did anything illegal or deceptive. Insofar as the Commonwealth argues that the judge was required to find Burke liable on an aiding and abetting theory, the judge may reasonably have concluded that Burke did not unlawfully aid actions she did not understand to be wrong. See Go-Best Assets Ltd. v. Citizens Bank of Mass., 463 Mass. 50, 64 (2012).

While Burke is a licensed insurance producer, the evidence reasonably could be taken to establish that she was not acting in that capacity in connection with the acts deemed c. 93A violations. In contrast to the millions reaped by Crowther and the KIA defendants, Burke received only a salary from KIA and no additional benefits. Under these circumstances we cannot say that Burke's conduct rose to the level of "unscrupulous, coercive, or '[i]ntentionally gainful misconduct' that is characteristic of wrongdoing under G. L. c. 93A." Bass River Golf Mgmt., Inc., 92 Mass. App. Ct. at 606, quoting from McGonagle v. Home Depot U.S.A., Inc., 75 Mass. App. Ct. 593, 600 n.9 (2009). The judge did not err in declining to extend liability to Burke in view of the evidence supporting her claim that she played an unwitting, subordinate role. See DeCotis, 366 Mass. at 242 ("The existence of unfair acts and practices must be determined from the circumstances of each case"). See also Turnpike Motors, Inc., 413 Mass. at 131 ("Notwithstanding the fact that we might arrive at a different conclusion with respect to this issue, we cannot state that the judge was completely unjustified in viewing this matter [how she did]").

iii. Denial of other relief. The Commonwealth lastly contends that the judge erred in declining to impose civil penalties and award attorney's fees. Again, we are unpersuaded. The language of § 4 is clear that these type of sanctions are discretionary:

"If the court finds that a person has employed any method, act or practice which he knew or should have known to be in violation of said section two, the court may require such person to pay to the commonwealth a civil penalty of not more than five thousand dollars for each such violation and also may require the said person to pay the reasonable costs of investigation and litigation of such violation, including reasonable attorneys' fees" (emphases added).

G. L. c. 93A, § 4, as amended by St. 1985, c. 468. See AmCan Enterprises, Inc., 47 Mass. App. Ct. at 338 ("[E]ach [act of deception] may be viewed as a separate statutory violation for which a judge may, under G. L. c. 93A, § 4, impose a separate civil penalty" [emphases added] ). Even assuming scienter, the factual context in which the violations occurred supported the judge's discretionary ruling. See Commonwealth v. ELM Med. Labs., Inc., 33 Mass. App. Ct. 71, 84 n.16 (1992) ; Commonwealth v. Chatham Dev. Co., 49 Mass. App. Ct. 525, 529 (2000). The evidence showed that (1) Crowther committed these acts at a time when agency fee practices were unregulated; (2) he was not fully aware that his practices were improper; and (3) the victims were sophisticated business clients who chose not to ask Crowther questions about his compensation before purchasing their insurance. On these facts, the Commonwealth has failed to show that the judge abused her discretion in refusing to impose the added punishment of civil fines and attorney's fees. See ibid.

b. Crowther's cross appeal. Crowther asserts that the judge's c. 93A ruling was erroneous for a number of reasons. The arguments are unavailing. First, the judge was warranted in concluding, as a matter of law, that Crowther's active concealment of the agency fees was a deceptive practice that violated c. 93A. See Purity Supreme, Inc., 380 Mass. at 777 ; Aspinall, 442 Mass. at 394. Indeed, the evidence demonstrates that, had Crowther's clients been privy to the agency fees that he had concealed, they may have "act[ed] differently from the way [they] otherwise would have acted" by seeking to negotiate his compensation or purchase other insurance. Purity Supreme, Inc., 380 Mass. at 777. See Klairmont v. Gainsboro Restaurant, Inc., 465 Mass. 165, 175 (2013).

Crowther's various attempts to dispute this conclusion are misguided. First, he essentially contends that the judge's finding that he "actively concealed" the agency fees is clearly erroneous. To the contrary, the evidence in support of this finding is overwhelming and need not be repeated here. See Demoulas, 424 Mass. at 510. Second, there is no merit to Crowther's argument that the altered and withheld documents were immaterial. Indeed, as noted above, Crowther's acts of concealment were material insofar as they deprived his clients of the opportunity to negotiate or obtain cheaper insurance. See Klairmont, 465 Mass. at 175. Third, to the extent Crowther argues that there was no causal connection between his actions and any loss suffered by his clients, he cites no evidence indicating that the judge's finding to that effect was clearly erroneous. See DiMarzo v. American Mut. Ins. Co., 389 Mass. 85, 100-101 (1983).

Each of Crowther's remaining arguments are based on mischaracterizations of the judge's findings and rulings. A fair reading of the judge's decision undercuts Crowther's argument that the judge applied the wrong G. L. c. 93A, § 9, standard "to this [§] 11 business case." Notwithstanding that this case actually arose under § 4, footnote fifteen of the judge's decision (of December 3, 2013) establishes that she properly considered the sophisticated nature of Crowther's clients, and recognized the distinctions between § 11 and § 9 standards in evaluating a claimed c. 93A violation. See Kattar, 433 Mass. at 14 ; Giuffrida v. High Country Investor, Inc., 73 Mass. App. Ct. 225, 238 (2008). Next, the judge did not, as Crowther argues, "appl[y] the wrong concept of unfairness to determine that the charging of any fee above [twenty percent] was unfair." The judge grounded Crowther's c. 93A liability on his deceptive conduct, specifically finding that Crowther's conduct was not unfair within the meaning of G. L. c. 93A, § 2(a ).

c. KIA defendants' cross appeal. On cross appeal, the KIA defendants argue that the judge erred in granting the Commonwealth's renewed motion for summary judgement on the issue of vicarious liability. Primarily, they contend that the Commonwealth failed to sustain its burden in establishing the elements of apparent authority. We disagree.

By way of procedural background, on May 10, 2012, the judge issued an order bifurcating the trial. For the sake of efficiency, the issue whether Crowther and Burke violated c. 93A was to be tried first, followed by a second trial on the KIA defendants' vicarious liability "if necessary." However, in her December 3, 2013, order for partial judgment after the first phase of trial, the judge stated that she was "inclined to find from the evidence presented thus far, an agency relationship, based on apparent authority, as between Crowther and the Kilgore defendants." Thereafter, the judge ordered briefing on whether the Commonwealth had established a prima facie case of apparent authority. Post-briefing, she concluded that it had, and ordered the KIA defendants to submit an offer of proof rebutting the Commonwealth's evidence and demonstrating a question of material fact. Following the offer, she asked the Commonwealth to renew its motion for summary judgment, which she then allowed in a comprehensive memorandum and order.

We review a grant of summary judgment de novo to determine whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law. Chambers v. RDI Logistics, Inc., 476 Mass. 95, 99 (2016). The moving party bears the burden of establishing the absence of a triable issue. SCA Servs., Inc. v. Transportation Ins. Co., 419 Mass. 528, 531 (1995). If the moving party is successful, the opposing party "must respond and allege specific facts establishing the existence of a [genuine issue of] material fact in order to defeat the motion." Ibid.

"A principal is liable for the agent's conduct when the agent acts with the actual or apparent authority of the principal in [a] transaction." Fergus v. Ross, 477 Mass. 563, 566 (2017) (quotation omitted). Apparent authority exists when conduct by the principal "causes a third person reasonably to believe that a particular person ... has authority to enter into negotiations or to make representations as his agent." Hudson v. Massachusetts Property Ins. Underwriting Assn., 386 Mass. 450, 457 (1982) (quotation omitted). Only the words and conduct of the principal are considered in making an apparent authority determination, and "[t]he principal's manifestation of apparent authority does not need to be direct communication with the third party." Fergus, 477 Mass. at 567. Moreover, contrary to the defendants' assertion throughout this litigation, detrimental reliance is not an element of apparent authority. See Hudson, 386 Mass. at 457 (distinguishing between apparent authority and estoppel and including reliance only as an element of the latter); Linkage Corp. v. Trustees of Boston Univ., 425 Mass. 1, 16-17 (1997) (finding apparent authority without discussing detrimental reliance); Barrow v. Dartmouth House Nursing Home, Inc., 86 Mass. App. 128, 132-134 (2014) (bifurcating apparent authority and equitable estoppel analyses and incorporating detrimental reliance only in the test for estoppel). See also Restatement (Third) of Agency § 2.03 comment e (2006) ("To establish that an agent acted with apparent authority, it is not necessary for the plaintiff to establish that the principal's manifestation induced the plaintiff to make a detrimental change in position, in contrast to the showing required by the estoppel doctrines ...").

The summary judgment record supports the judge's conclusion that, on the issue of apparent authority, there was no genuine issue of material fact and the Commonwealth was entitled to judgment as a matter of law. See Chambers, 476 Mass. at 99. Initially, the Commonwealth's proffer was sufficient to establish the elements of apparent authority. As to the KIA defendants' "manifestation" of apparent authority, the evidence shows, inter alia, that they billed all of Crowther's clients directly using the KIA invoicing system. In addition, the KIA name was also listed as some variation of "producer" in all binders, surplus lines affidavits, and premium finance agreements. For these reasons, as well as those stated in the judge's memorandum and order allowing the Commonwealth's renewed motion for summary judgment, such communication was enough to satisfy the manifestation requirement in the present case. See Linkage Corp., 425 Mass. at 16-17 ; Fergus, 477 Mass. at 567. Contrast Theos & Sons, Inc. v. Mack Trucks, Inc., 431 Mass. 736, 745-746 (2000) (no apparent authority where only manifestation was authorized use of principal's trademark and logos).

Moreover, with regard to reasonable belief, all of Crowther's clients included in the final restitution pool attested, via affidavit or sworn questionnaire response, that they thought they were direct clients of KIA or that Crowther was an employee, owner, or agent of KIA. These statements, taken together with the manifestations of the KIA defendants, are sufficient to establish that Crowther's clients reasonably believed that he had the authority to act on behalf of KIA. See Hudson, 386 Mass. at 457 ; Linkage Corp., 425 Mass. at 16-17. Finally, as the judge explained in her order granting the motion, the KIA defendants' offer of proof did not demonstrate a question of material fact as to either of these elements.

Judgment affirmed.

      By posttrial ruling, the judge allowed the Commonwealth's renewed motion for summary judgment on this issue. We discuss this ruling in more detail below.

      Wholesale brokers serve as "middle men" between retail brokers, who manage all contact with the insureds, and surplus lines insurance carriers.

      The commission typically amounts to between 17.5 and 20 percent of the total premium price. Usually, the wholesale broker divides the commission such that the retail broker receives 10 percent of the total premium price, and the wholesale broker receives the remainder of the total commission. It is also an accepted practice, though not routine, for the retail broker to either (1) reject the commission so that it can then charge a separate agency fee, or (2) have the policy issued "net commission," i.e., without commission, allowing both brokers to charge separate fees for their services. It is not customary to charge an agency fee in addition to a commission and, whenever an agency fee is charged, it is industry custom to disclose it to the insured.

      The "binder" is a placeholder document that stays in effect until it is replaced by the official policy, which is often issued weeks after the parties reach an agreement. During that interim period, the binder serves as evidence of insurance and contractually binds the insurer and insured.

      The wholesale broker, retail broker, and the insured sign the affidavit, which, among other things, establishes the amount of the premium set by the insurer for purposes of State taxation.

      Crowther initially served as an in-house broker for another Kilgore business venture, A.B.K. Insurance Agency, Inc. (A.B.K.). By 1999 or the early 2000s, A.B.K. was dissolved or merged into KIA. To the extent that the judge found that Crowther started work at KIA in 1995 or 1996, any error was immaterial.

      As these defendants share a surname, we refer to them by their first names to avoid confusion.

      Sometimes customer service representatives signed the brothers' names on the finance agreements, which they were authorized to do.

      The judge ruled pretrial that Crowther's practice of rolling his agency fee into the bottom-line cost without disclosure to his clients did not, as matter of law, violate G. L. c. 93A. The Commonwealth does not challenge that ruling on appeal.

      When it came to the bottom-line price, Crowther's practice as to his commission varied. However, even when he accepted his commission, he always charged an agency fee. On average, that fee was forty-seven percent of the premium price.

      Steven Guy, a KIA in-house producer whose testimony the judge explicitly credited, stated that the standard commission on admitted market policies was twice the commission on surplus lines policies (which often required more work to place), and that he charged his one surplus lines client around a twenty percent fee. Cyrus Kilgore also charged a surplus lines client a fee in the seventeen to twenty percent range.

      Burke understood the word "premium" to mean the total cost of the insurance, including all component parts; and she believed that the clients had the same understanding. From her many years on the job, she understood that broker commissions and fees were confidential and generally not disclosed to clients; and that KIA had taken steps to determine the propriety of Crowther's fee-based compensation.

      Crowther also claims that the judge erred in considering claims that were time-barred pursuant to G. L. c. 260, § 5A. The record is unclear as to whether the issue was preserved for appeal and properly before us. See Coastal Oil New England, Inc. v. Citizens Fuels Corp., 38 Mass. App. Ct. 26, 29 n.3 (1995) (pursuant to Mass.R.Civ.P. 8 [c], 365 Mass. 749 [1974], "[a] party is required to plead the affirmative defense of statute of limitations in its answer," and the failure to do so "constitutes a waiver of that defense"). See also Shawmut Community Bank, N.A. v. Zagami, 30 Mass. App. Ct. 371, 372-373 (1991), S.C., 411 Mass. 807, 810-812 (1992) ; Davis v. Tabachnick, 425 Mass. 1010, 1010 (1997). Assuming, without deciding, that the issue has not been waived, we agree with the judge that the "discovery rule" defeats any statute of limitations argument under the facts of the present case.

      That Crowther's clients may have sought to negotiate his compensation is exemplified by the testimony of John Brussard. Brussard explained that, after discovering Crowther's hidden agency fee, he demanded and received lower fee charges. We also note that upon discovery of Crowther's nondisclosure, Brussard demanded and obtained a partial refund of undisclosed fees from prior policy years.

      The KIA defendants had over four months -- between the day they were first ordered to make an offer of proof and the day their summary judgment opposition was due -- to take depositions of Crowther's clients on issues relevant to apparent authority and include such evidence in the record. Although the judge encouraged them to do so during this period, they failed to take any depositions.

      In support of the proposition that detrimental reliance is an element of apparent authority, the KIA defendants cite language from Theos & Sons, Inc. v. Mack Trucks, Inc., 431 Mass. 736, 745 (2000), which states that "[a]pparent authority exists only if the plaintiff reasonably relied on the principal's words or conduct at the time he entered the transaction that the agent is authorized to act on the principal's behalf." This language does not establish detrimental reliance as an element of apparent authority. Noting that it does not contain the word "detriment," we read it simply as an expression of the operative point in time for purposes of the apparent authority analysis: the time of the transaction at issue.

      The KIA defendants argue that the judge erred by not requiring "individualized testimony" from each of Crowther's clients because failing to do so denied them the "opportunity to inquire into the validity and reasonableness" of the clients' belief in Crowther's authority. However, the KIA defendants were not denied such an opportunity and, therefore, the judge did not err in this regard. As we discussed in note 16, supra, the judge gave them months to depose Crowther's clients on this question and they chose not to do so. Further, to the extent the KIA defendants argue that each client was required to give traditional in-court testimony in order to prove their reasonable belief, we disagree. See generally Commonwealth v. Chatham Dev. Co., 49 Mass. App. Ct. 525, 528 (2000) ("An action brought by the Attorney General under G. L. c. 93A, § 4, is comparable to a class action").

      Other points raised by the defendants that are not discussed herein "have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).