text:
    Phyllis GREENE, personal representative, v. Mohamed ELGEZIRY & another.
    17-P-780
    Appeals Court of Massachusetts.
    Entered: February 6, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Of the estate of Michael Abraham.

      Harbor Medical Associates, P.C.

   From April 8, 2011, to November 28, 2012, Michael Abraham was under the care of his primary care physician, Mohamed Elgeziry, M.D. Over that time period, Abraham on multiple occasions complained of various symptoms, including several that are commonly associated with heart disease, such as chest tightness and shortness of breath. Dr. Elgeziry provided certain diagnoses unrelated to heart disease, and to address these issues, he prescribed various medications. Dr. Elgeziry also referred Abraham to a neurologist. Dr. Elgeziry never diagnosed Abraham with, or treated him for, heart disease ; he also did not refer him to a cardiologist.

On November 28, 2012, Abraham was taken to an emergency room in full cardiac arrest, and a "100 [percent] occlusion of his left anterior descending artery" was discovered. He died five days later at the age of forty-six. His mother, Phyllis Greene, filed this medical malpractice action in Superior Court as the personal representative of his estate. In it, she alleged that Dr. Elgeziry's failure to appreciate and address Abraham's heart disease violated the applicable standard of care and caused Abraham's premature death.

In accordance with G. L. c. 231, § 60B, the matter was referred to a medical malpractice tribunal. After a hearing, the tribunal concluded that Greene's offer of proof, even if properly substantiated, was insufficient to raise a "legitimate question of liability appropriate for judicial inquiry." G. L. c. 231, § 60B, inserted by St. 1975, c. 362, § 5. Greene did not post the $6,000 bond required by the statute, and her action against Dr. Elgeziry therefore was dismissed. See ibid. ("If [the] bond is not posted within thirty days of the tribunal's finding [for the defendant] the action shall be dismissed"). Because we agree with Greene that her offer of proof was adequate, we reverse.

Standard of review. "Before a [medical] malpractice tribunal, a plaintiff's offer of proof must (1) show that the defendant is a provider of health care as defined in G. L. c. 231, § 60B ; (2) demonstrate that the health care provider [in question] did not conform to good medical practice; and (3) establish resulting damage." Saunders v. Ready, 68 Mass. App. Ct. 403, 403-404 (2007), citing Santos v. Kim, 429 Mass. 130, 132-134 (1999). The relevant standard of care is the one that applies to "the average qualified physician in his or her area of specialty" (in this case, a primary care physician). Medina v. Hochberg, 465 Mass. 102, 106 (2013). Whether the physician met the applicable standard of care generally can be answered only with the aid of expert opinion. See Kapp v. Ballantine, 380 Mass. 186, 190 & n.4 (1980). The expert opinion must be rooted in the record evidence and not be based on speculation, conjecture, or assumptions not supported by the evidence. Blood v. Lea, 403 Mass. 430, 434 (1988).

In determining whether a plaintiff's offer of proof is sufficient, "[t]he question to be decided ... by the tribunal is a factual one." Kopycinski v. Aserkoff, 410 Mass. 410, 413 (1991). However, the tribunal's task is "akin to a trial judge's evaluation of a motion for a directed verdict." Cooper v. Cooper-Ciccarelli, 77 Mass. App. Ct. 86, 91 (2010), citing Little v. Rosenthal, 376 Mass. 573, 578 (1978). Thus, "the tribunal may not examine the weight or credibility of the evidence." Cooper, 77 Mass. App. Ct. at 91, citing Perez v. Bay State Ambulance & Hosp. Rental Serv., Inc., 413 Mass. 670, 676 (1992). Instead, it must consider the proof in the light most favorable to a plaintiff. Blake v. Avedikian, 412 Mass. 481, 484 (1992). "An offer of proof is sufficient if 'anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff.'" Thou v. Russo, 86 Mass. App. Ct. 514, 516 (2014), quoting from St. Germain v. Pfeifer, 418 Mass. 511, 516 (1994).

Background. a. Facts. We summarize the facts drawn from the medical records, reserving some particulars for later discussion. Abraham visited Dr. Elgeziry twelve times from April, 2011, through July, 2012. During his visits, Abraham presented to his primary care physician numerous complaints about various symptoms he was experiencing, including, but not limited to, chest tightness and congestion, fatigue, weakness, general malaise, severe bilateral posterior neck and shoulder pain radiating to arms, wheezing, difficulty breathing, and sexual dysfunction.

Based on Abraham's complaints and test results, Dr. Elgeziry diagnosed Abraham with various maladies, including upper respiratory infection, asthma, seizure disorder, pernicious anemia, hypercholesterolemia, and hypogonadism. Dr. Elgeziry prescribed various medications to Abraham, including antibiotics, vitamin B12, omeprazole, prednizone, and topical testosterone cream. Dr. Elgeziry also referred Abraham for neurological consultation, which resulted in Abraham's being diagnosed with having had a grand mal seizure, cervical radiculopathy, and degenerative disc disease.

On November 28, 2012, Abraham was found unconscious in his house by his girl friend. He was rushed to the emergency department of Brockton Hospital, where he was diagnosed with a "full cardiac arrest" and acute myocardial infarction with a "100 [percent] occlusion of the left anterior descending artery." On November 30, 2012, Abraham was found to have suffered "an irreversible insult to the nervous system with really no reasonable chance of functional survival." On December 3, 2012, he died. The cause of death was determined to be "anoxic brain injury secondary to myocardial infarction."

b. Expert opinion. Before the tribunal, Greene submitted an expert opinion letter that had been prepared by Paul Genecin, M.D., a physician board-certified in internal medicine and a clinical associate professor at Yale School of Medicine. Among his other conclusions, Dr. Genecin opined that "the signs and symptoms of coronary artery disease include, but are not limited to, dyspnea, dyspnea on exertion, reduced exercise tolerance chest pain/angina, chest tightness, persistent symptoms of heartburn despite treatment, left arm pain, left shoulder pain, left neck pain, left arm numbness/tingling, dry cough, acute and intermittent episodes of wheezing." Dr. Genecin further noted that under the applicable standard of medical care, which was well established by 2011, the patients displaying the symptoms of coronary artery disease should be referred to a cardiologist for further testing, assessment, and treatment. He specifically criticized Dr. Elgeziry for prescribing the testosterone cream for Abraham where testing had revealed no hormone deficiencies and where use of such a cream had the potential to exacerbate any cardiac problems.

Dr. Genecin further stated that "in [his] professional opinion, to a reasonable degree of medical certainty, the care and treatment rendered to Michael Abraham between [April 8, 2011,] and [November 28, 2012,] by [Dr. Elgeziry] deviated from the accepted standard of care," because Dr. Elgeziry failed to recognize and appreciate the symptoms displayed by Abraham as the signs of coronary artery disease, failed to order or refer Abraham for cardiac work-up, failed to offer appropriate pharmacologic treatment to Abraham, and failed to refer Abraham to a cardiologist. Dr. Genecin concluded that "[a]s a direct result of Dr. Elgeziry's deviation from the accepted standard of care, ... Abraham was not evaluated by a cardiologist for [coronary artery disease ] causing a significant delay in the diagnosis and treatment of his underlying cardiac condition and, ultimately, resulting in a massive myocardial infarction, anoxic brain injury, and his premature and preventable death."

Discussion. As the record amply reveals, Abraham repeatedly had presented his primary care physician with complaints about symptoms that, according to the expert opinion letter, were indicative of coronary artery disease. Furthermore, based on specific facts reflected in the medical record, Greene's expert opined that Dr. Elgeziry's failure to address such symptoms constituted a deviation from the standard of care and that this caused Abraham's death.

To the extent that Dr. Elgeziry argues that the expert opinion letter is based on facts that are contradicted by the medical records, we are unpersuaded. For example, while it is true that the medical records do not contain a specific reference to Dr. Elgeziry's having concluded that Abraham suffered from heartburn, this can be inferred from the fact that Dr. Elgeziry prescribed him omeprazol (which is used to treat acid reflux symptoms). In addition, while the medical records may not include a specific reference to Abraham's experiencing chest "pain," they do include multiple references to his having experienced chest "tightness," as well as other forms of pain associated with cardiac conditions.

To be sure, Dr. Elgeziry is able to point to certain facts that arguably cut against Greene's claim that he violated the standard of care. For example, he highlights that Abraham exhibited a number of additional symptoms that pointed to noncardiac causes, and that during particular visits, Abraham did not exhibit certain signs potentially indicative of heart disease. In the end, Dr. Elgeziry may be able to use such arguments to persuade the fact finder that he acted reasonably and fully complied with the applicable standard of care. However, that is not something that can be resolved on the current record without straying into the inappropriate role of weighing the evidence. See Cooper v. Cooper-Ciccarelli, 77 Mass. App. Ct. at 91. For present purposes, the medical records and the expert's "detailed report, fairly read, presented more than conclusory assertions, and provided evidence from which a reasonable juror could infer sub-par professional conduct on [Dr. Elgeziry's] part." Lambley v. Kameny, 43 Mass. App. Ct. 277, 287 (1997). This was sufficient.

Dr. Elgeziry separately argues that the offer of proof does not sufficiently establish causation between Abraham's death and his deviation from the standard of care. "Not a great deal is required to fend off a directed verdict on the issue of causation. It is enough to adduce evidence that there is a greater likelihood or probability that the harm to the plaintiff flowed from conduct for which the defendant was responsible." Joudrey v. Nashoba Community Hosp., Inc., 32 Mass. App. Ct. 974, 976 (1992), quoting from Held v. Bail, 28 Mass. App. Ct. 919, 921 (1989). Admittedly, the portion of the expert's opinion letter that directly addressed causation is phrased in fairly conclusory terms. However, the portion of the letter that addresses the standard of care fills in details regarding specific steps that could have been taken to address Abraham's heart disease, such as catheterization. Moreover, the medical record indicates that catheterization was performed on Abraham after his heart attack. This appears to have successfully unclogged his artery (even though the intervention was, at that point, too late to save his life). Reading the offer of proof as a whole, we conclude that it presented a sufficient showing of causation.

In sum, we conclude that Greene has satisfied her initial burden of "rais[ing] a legitimate question of liability appropriate for judicial inquiry." G. L. c. 231, § 60B. Accordingly, we reverse the judgment of dismissal and remand this matter to the Superior Court where the determination of the tribunal is to be replaced with a determination that the plaintiff's offer of proof is sufficient to raise a legitimate question appropriate for judicial inquiry.

So ordered.

      The claims were based on negligence, vicarious liability, and related theories.

      General Laws c. 231, § 60B, the malpractice tribunal statute, applies broadly to "all treatment-related claims" involving a provider of health care. Vasa v. Compass Med., P.C., 456 Mass. 175, 177 (2010), quoting from Little v. Rosenthal, 376 Mass. 573, 576 (1978). See generally Jacobs & Laurence, Professional Malpractice §§ 5.1-5.7 (2017).

      The current appeal is before us based on a separate and final judgment entered dismissing the plaintiff's claims against Dr. Elgeziry. See Mass.R.Civ.P. 54(b), 365 Mass. 820 (1974). Harbor Medical Associates, P.C. (Harbor) remains a party to the underlying litigation. Given that Harbor's alleged liability is based entirely on Dr. Elgeziry's alleged negligence, the propriety of the judge's entry of a separate and final judgment lies in significant doubt. Nevertheless, in our discretion, we reach the merits, which have been fully briefed by both sides.

      General Laws c. 231, § 60B, "requires a physician member on the tribunal so that he or she may lend expertise in medical matters and assist in screening out nonmeritorious claims." Blood, 403 Mass. at 435.

      For example, on April 8, 2011, Abraham's complaints about chest congestion, wheezing, and difficulty breathing were paired with his complaints about abdominal bloating and diarrhea.

      For example, during his visit to Dr. Elgeziry's office on June 3, 2011, Abraham presented complaints of shoulder pain and constant episodes of moderate fatigue, but he did not experience chest pain and denied chest tightness, and Dr. Elgeziry noted that, related to Abraham's heart condition, "the apical impulse was normal [and] heart rate and rhythm were normal."

      We note one additional problem with the medical tribunal proceedings. Over the plaintiff's objection, Dr. Elgeziry's counsel improperly presented the tribunal with the results of her own research about the topical testosterone cream prescribed by Dr. Elgeziry and its effects on the risk of coronary artery disease. While she herself recognized that such material was outside the record, she nevertheless argued that the tribunal could "take that into account" when deciding the issue of causation.


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. John AGUIAR.
    17-P-26
    Appeals Court of Massachusetts.
    Entered: February 6, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, John Aguiar, was convicted, following a jury trial, of multiple counts of indecent assault and battery on a person under the age of fourteen in violation of G. L. c. 265, § 13B. On appeal, he argues that the motion judge abused his discretion in denying his second motion for new trial in which he argued, inter alia, that his trial counsel was ineffective for failing to consult with an expert on the unreliability of memory. We affirm.

Background. We have previously summarized the facts as the jury could have found them in connection with the defendant's direct appeal and his appeal from the denial of his first motion for a new trial, See Commonwealth v. Aguiar, 78 Mass. App. Ct. 193 (2010) (Aguiar I ); Commonwealth v. Aguiar, 86 Mass. App. Ct. 1103 (2014) (unpublished) (Aguiar II ). Briefly, the defendant sexually abused two female victims, Lauren and Jane, in his home when they were young children. The first victim, Lauren, is the defendant's niece. Lauren was twenty-one years old at the time of trial, and testified that the defendant sexually abused her multiple times when she was six years old, during a period when she and her parents temporarily lived in his home. The second victim, Jane, was the daughter of the defendant's wife's best friend, who was an employee of the family business. Jane was fifteen years old at the time of trial, and testified that, when she was between seven and nine years old, the defendant sexually abused her on numerous occasions when he babysat her in his home while her mother and his wife were out.

At trial, the defense was that the two victims and their respective families conspired to manufacture the abuse allegations as part of an extended familial dispute concerning the family business that had pitted both Lauren's and Jane's parents against the defendant and his wife. The defendant's trial counsel extensively cross-examined both victims, exposing inconsistencies in their testimonies to support his defense that they fabricated the allegations. The defendant was convicted. We affirmed.

In his first motion for new trial, the defendant argued that his trial counsel provided ineffective assistance by pursuing a defense strategy that resulted in the joinder of the victims' cases and failing to object to the admission of evidence under the first complaint doctrine. His motion was denied. We affirmed. Aguiar II, 86 Mass. App. Ct. 1103 (2014).

In his second motion for new trial, the defendant again argues that his trial counsel was ineffective. This time, he faults trial counsel for failing to consult an expert on the unreliability of an adult's memory of abuse that occurred during early childhood. The defendant submitted an affidavit from a psychiatrist in which the psychiatrist reviewed inconsistencies in the victims' testimonies, listed certain memory disorders, and opined that expert testimony regarding the fallibility of memory was warranted in the defendant's case. In addition, the defendant submitted an affidavit from trial counsel stating that he did not make a strategic decision to forgo a defense "premised on dissociative or delusional disorder." The motion was denied by the motion judge, who was also the trial judge. This appeal followed.

Discussion. We review the defendant's argument that the motion judge erred in denying his motion for new trial for abuse of discretion. Commonwealth v. Cameron, 473 Mass. 100, 104 (2015). Because the motion judge also presided at trial, we extend the judge's decision "special deference." Commonwealth v. Grace, 397 Mass. 303, 307 (1986). The defendant's claim of ineffective assistance of counsel is reviewed by applying the familiar two-part test: (1) whether the defendant has demonstrated "serious incompetency, inefficiency, or inattention of counsel-behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer," and (2) if so, whether counsel's poor performance "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

The defendant argues that trial counsel was ineffective because he did not consult an expert to explain that an adult's memory of events that occurred during childhood is unreliable. However, the psychiatrist concedes that the average juror would not need the aid of expert testimony in order to understand this concept. He states that "[t]he average juror has extensive personal experience of the fallibility of memory simply by achieving the age at which one can serve on a jury."

Next, the defendant argues that trial counsel was ineffective because he admits that he did not make a strategic decision regarding presenting a dissociative disorder defense. However, the psychiatrist does not explain dissociative disorder, the characteristics of someone who has this disorder, how the disorder affects memory or leads to a false accusation of sexual abuse, or how any of the characteristics of the victims fit within that disorder. At best, he points to certain discrepancies in the first complaints made by each of the victims and states that these discrepancies "raise[ ] questions about disassociation." Given the paucity of information in the psychiatrist's affidavit about dissociative disorder, we cannot fault trial counsel for not consulting with such an expert.

While the psychiatrist also mentions other disorders such as "posttraumatic stress disorder, false memory syndromes, malingering, [and] factitious disorder," he does not explain these disorders, the causes thereof, the traits of individuals with these disorders, or how any of the disorders specifically might affect childhood memories of sexual abuse. Instead, the psychiatrist makes broad statements regarding the fallibility of memory, noting that inconsistencies in Lauren's testimony "raise[ ] questions about the accuracy and validity of her remembering," or suggest the "fallibility of memory." When, in connection with his review of Jane's testimony, he mentions "misattribution or false memory" and "dissociation and other memory impairments," he says only that the testimony "raises questions" about the disorders without explaining what those questions might be or how they provide a basis for an otherwise overlooked defense to explain a false accusation of sexual abuse. Cf. Commonwealth v. Polk, 462 Mass. 23, 27-29 (2012) (expert testimony on memory impairment admissible where expert explained memory disorder, identified victim's specific traits that were consistent with disorder, and opined that disorder would explain victim's alleged false testimony). Moreover, while an expert is not required to definitively diagnose a victim, the psychiatrist here failed even to suggest that victims' profiles fit any of the disorders he lists. At best, he sets forth "general factors [that] are frequently found in cases involving disorders of memory function" without explanation as to how specifically those factors relate to the victims. Cf. Commonwealth v. Shanley, 455 Mass. 752, 757-759 (2010) (expert testimony on memory admitted where, although expert did not diagnose victim, expert defined specific memory disorder, and also explained how its causes and symptoms were consistent with victim's history).

Even assuming arguendo that the failure to consult with an expert regarding such information fell below the performance of an ordinary fallible lawyer, the defendant has not shown that he was deprived of a substantial ground of defense. As explained above, the psychiatrist's affidavit does not set forth how specifically any of the enumerated memory disorders are consistent with the victims' profiles; and, he provides no explanation as to how these disorders affect memory or cause false memories of sexual abuse. Indeed, with regard to the defendant's principle argument-that memory can distort over time due to a number of factors-the psychiatrist admits this is a concept well understood by the average juror. See Commonwealth v. Hudson, 446 Mass. 709, 725-726 (2006) (declining to find counsel ineffective where counsel failed to pursue defense strategy that would not have aided defendant's case).

Order denying motion for new trial, dated December 13, 2016, affirmed.

      Pseudonyms are used for the victims. They are the same pseudonyms used by this court in Aguiar I.

      Her stepfather is the defendant's wife's brother.

      At the time that the families were living together, the defendant, the defendant's wife, and Lauren's stepfather worked together in the family business.

      His argument on direct appeal was that the trial judge erred by denying his motion to sever and thereby allowing the two victims' cases to be tried together. Aguiar I, 78 Mass. App. at 198-199.

      Because the defendant has not shown that trial counsel was ineffective, his appellate counsel on his first motion for a new trial was not ineffective when he did not raise this claim. See Breese v. Commonwealth, 415 Mass. 249, 256 (1993) ("Appellate counsel [is] not ineffective for choosing to forgo a meritless argument").

      Similarly, with regard to other inconsistencies in the victim's testimony, the psychiatrist states only: "this confusion warrants expert opinion regarding the fallibility of memory"; and "all of these contradictory statements warrant an expert opinion regarding the problem of memory dysfunctions."

      The psychiatrist also states, without further detail: "The testimony by [Jane] and her mother regarding the details of the first complaint and motivation for divulging information are discrepant and thus raise the issue of false memory, fabrication, or contamination of memory as a result of other influences."

      Similarly, the psychiatrist notes that "multiple sources of depression and depression itself can directly influence the validity and reliability of memory," and Jane's mental health issues "raise[ ] much deeper questions about [her] memory reliability," but does not set forth those questions or explain how depression particularly affects memory.

      Because the defendant's new trial motion does not raise a substantial issue, the motion judge did not abuse his discretion in declining to hold an evidentiary hearing. See Commonwealth v. Chatman, 466 Mass. 327, 334 (2013).


text:
    COMMONWEALTH v. John J. PETERS.
    17-P-449
    Appeals Court of Massachusetts.
    Entered: February 6, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   In this appeal from the revocation of his probation, the defendant argues that the evidence was insufficient to prove by a preponderance of the evidence that he knew the truck he was driving was stolen. We review the judge's revocation of probation for abuse of discretion. See Commonwealth v. Bukin, 467 Mass. 516, 521 (2014).

The Commonwealth bore the burden to prove by a preponderance of the evidence that the defendant violated a condition of his probation. See Commonwealth v. Holmgren, 421 Mass. 224, 226 (1995). The condition at issue in this case required the defendant to obey all local, State, and Federal laws. He was alleged to have violated that condition by, among other things, receiving a stolen motor vehicle. "The offense of receiving a stolen motor vehicle requires the Commonwealth establish that (1) the motor vehicle was stolen; (2) the defendant received the motor vehicle; and (3) the defendant knew that the motor vehicle was stolen. See G. L. c. 266, § 28(a )." Commonwealth v. Ramos, 470 Mass. 740, 750 (2015). The defendant argues that the evidence was insufficient to establish the third element of the offense. We review to determine "whether the record discloses sufficient reliable evidence to warrant the finding[ ] by the judge," Commonwealth v. Morse, 50 Mass. App. Ct. 582, 594 (2000), that the defendant knew the truck was stolen.

The judge credited the Commonwealth's evidence in toto. That evidence can be summarized as follows. On December 11, 2014, the defendant was released from custody, having finished serving a period of incarceration on several charges. See note 1, supra. Before the defendant's release, a truck and its keys were stolen from a U-Haul lot in Fall River at some point between 7:00 P.M. the night before and 7:30 A.M. on the day of his release. Not long after noon, a report was made to Westminster police of a minor motor vehicle accident involving a U-Haul truck at the Rodeway Inn. An officer investigated and learned from the front desk that the U-Haul belonged to the defendant, who was staying in room eight. Upon inquiry, the defendant admitted that the truck was his, but denied any accident and pointed out the lack of any damage to the truck. While in the defendant's presence, the officer took down the registration number of the truck. He thereafter continued his investigation at the station, where he learned that (1) the truck was stolen, and (2) the defendant's license had been suspended for motor vehicle theft. This portion of the officer's investigation was completed quickly. He returned to the motel within twenty minutes of speaking with the defendant, just missing the defendant, who had driven off in the truck with a woman as his passenger. The defendant was stopped shortly thereafter on Route 2. A syringe needle was found on the floor board near the passenger, and a search of the defendant and his companion revealed four baggies of crack cocaine and one baggie of heroin.

Direct evidence of the defendant's knowledge that the truck was stolen was not required; the matter could be established circumstantially. See Commonwealth v. Cromwell, 53 Mass. App. Ct. 662, 668 (2002) ("The crime of receiving stolen goods may be proved by circumstantial evidence"). Among other things, "[t]he inference permitted by possession of recently stolen property can be a strong one." Commonwealth v. Kirkpatrick, 26 Mass. App. Ct. 595, 600 (1988). In addition, consciousness of guilt could be inferred from the defendant's speedy departure from the motel after learning that the police were investigating matters concerning the truck and had taken its registration number. Taken together, the evidence and the reasonable inferences to be drawn therefrom were sufficient to permit the judge to find that the defendant knew the truck was stolen.

Order revoking probation affirmed.

      The probation at issue had been imposed as part of a sentence after the defendant's conviction (by way of plea) in 2013 for breaking and entering in the nighttime, larceny from a building, larceny of a motor vehicle, and breaking and entering into a depository.


text:
    Mark A. LARACE & another v. WELLS FARGO BANK, N.A., trustee, & others.
    17-P-263
    Appeals Court of Massachusetts.
    Entered: February 5, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Tammy L. Larace.

      Of the ABFC 2005-Opti Trust.

      Ocwen Loan Servicing, LLC; Lender Processing Services; Assurant Field Asset Services; and Ablitt & Scofield, P.C.

   Mark and Tammy LaRace commenced this action seeking damages against the defendants arising out of a foreclosure sale of property owned by them. Their complaint contained counts for wrongful foreclosure, violation of c. 93A, and slander of title. On the defendants' motions, a Superior Court judge dismissed their claims as barred by the applicable statutes of limitation. We affirm.

"We review the allowance of a motion to dismiss de novo, accepting as true all factual allegations in the complaint and favorable inferences drawn therefrom. We may also consider exhibits attached to the complaint and items appearing in the record," Lipsitt v. Plaud, 466 Mass. 240, 241 (2013), and we may take judicial notice of other related proceedings. See ibid. See also Amato v. District Attorney for the Cape & Islands Dist., 80 Mass. App. Ct. 230, 232 n.5 (2011).

On July 5, 2007, Wells Fargo Bank, as trustee of the ABFC 2005-Opti Trust (bank), conducted a nonjudicial foreclosure sale of the plaintiffs' property. In October, 2008, the bank filed an action in the Land Court seeking to quiet title to the property. The LaRaces did not initially appear in that action. On March 26, 2009, judgment entered against the bank, the Land Court having determined that the foreclosure sale was invalid. The bank sought to vacate the judgment. At this point, the LaRaces appeared in Land Court in opposition to that motion. The motion to vacate the judgment was denied, and the bank appealed. Meanwhile, on December 23, 2009, the LaRaces sent a G. L. c. 93A demand letter to American Home Mortgage Services, Inc. (the predecessor to Ocwen Loan Servicing, LLC) seeking damages for the wrongful foreclosure of their home.

In an opinion dated January 7, 2011, the Supreme Judicial Court affirmed the Land Court judgment in U.S. Natl. Bank Assn. v. Ibanez, 458 Mass. 637 (2011). Three years later, on January 6, 2014, the LaRaces commenced this action. The defendants moved to dismiss the complaint on the ground that the claims were time-barred. The Superior Court judge agreed. The judge determined that the limitations period began to run on March 26, 2009, the date the Land Court found that the foreclosure sale of the LaRaces' home was invalid. He rejected the argument by the LaRaces that they did not have "definitive notice" of the state of Massachusetts law until the Supreme Judicial Court issued its decision, noting that the appropriate standard for accrual of an action is when a party has knowledge they were injured, not when they have "definitive notice." Accordingly, he ruled that the three-year statute of limitations applicable to the plaintiff's tort claims of wrongful foreclosure and slander of title, see G. L. c. 260, § 2A, expired on March 26, 2012, and the four-year limitation period applicable to the c. 93A claim, see G. L. c. 260, § 5A, expired on March 26, 2013, both well before the commencement of this action on January 6, 2014.

"[A] cause of action accrues on the happening of an event likely to put the plaintiff on notice." Flynn v. Associated Press, 401 Mass. 776, 780 (1988), quoting from Hendrickson v. Sears, 365 Mass. 83, 89-90 (1982). "The 'notice' required is not notice of every fact which must eventually be proved in support of the claim." Ibid., quoting from White v. Peabody Constr. Co., 386 Mass. 121, 130 (1982) ). Rather, the accrual date for both the tort and c. 93A claims is "when the plaintiff knew or should have known of appreciable harm resulting from" the defendants' wrongful foreclosure of their home. Schwartz v. Traveler's Indem. Co., 50 Mass. App. Ct. 672, 678 (2001), quoting from International Mobiles Corp. v. Corroon & Black/Fairfield & Ellis, Inc., 29 Mass. App. Ct. 215, 221 (1990). The March 26, 2009, decision of the Land Court judge that the bank did not have the legal right to foreclose on their property put the LaRaces on notice that an injury had occurred. See Flynn, 401 Mass. at 780, quoting from White, 386 Mass. at 130. That they were on notice at that time is confirmed by their December 23, 2009, G. L. c. 93A demand letter, referenced in the complaint. The complaint, filed more than four years later on January 4, 2016, was, therefore untimely.

Judgment affirmed.

      The LaRace matter was a companion case to Ibanez, and the bank's appeal was resolved in that decision.

      Additional arguments raised by the plaintiffs below were not addressed in their brief, and are deemed waived. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975); Board of Appeals of Maynard v. Housing Appeals Comm. in the Dept. of Community Affairs, 370 Mass. 64, 68 (1976).

      To the extent the plaintiffs' argument that the statute of limitations did not commence until the Land Court's decision was affirmed by the Supreme Judicial Court was raised below, the case law is to the contrary. See Frankston v. Denniston, 74 Mass. App. Ct. 366, 375 (2009) (rejecting claim that limitation period was extended until lower court decision was affirmed on appeal; "[t]hat a case is ongoing and not finally adjudicated through the trial or appellate stage does not mean there is no duty of inquiry").


text:
    COMMONWEALTH v. Gilbert RODRIGUEZ-DIAZ.
    16-P-371
    Appeals Court of Massachusetts.
    Entered: February 5, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant was convicted by a Boston Municipal Court jury of (1) possession of a firearm without a license, and (2) unlawfully possessing a loaded firearm. The gun in question was found under the cushion and in the corner of a large, weathered chair, located outdoors in a private parking lot at 576-580 Blue Hill Avenue in the Dorchester section of Boston, and on which the defendant had been seated until the police arrived and arrested him. The defendant claims that the search that yielded the gun violated the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights, and that even if the search was valid, the evidence presented at trial was insufficient to convict him of possessing the firearm. For the following reasons, we affirm.

1. Facts. We summarize the facts found by the motion judge after an evidentiary hearing, and supplement where necessary with undisputed testimony credited by the judge. See Commonwealth v. Powell, 459 Mass. 572, 574 n.7 (2011), cert. denied sub nom. Powell v. Massachusetts, 565 U.S. 1262 (2012).

On September 8, 2014, at approximately 1:30 A.M. , Boston police Officer James O'Loughlin and his partner, Officer Edward Dervan, were on patrol when they pulled into a large parking lot adjacent to the apartment buildings located at 576, 578, and 580 Blue Hill Avenue. The parking lot was "open for vehicles to pull in and for people to walk in and out of." No one monitored the area and there were no signs prohibiting trespassing or loitering.

Officer O'Loughlin was familiar with this area because he had responded numerous times to the parking lot, including assisting another officer with a firearm arrest, responding to a report of shots fired, and trying to halt a spate of break-ins to the basement of one of the adjacent apartment buildings. Because of the high level of criminal activity in this area, Officer O'Loughlin patrolled the parking lot often.

On the evening in question, when Officer O'Loughlin entered the parking lot he saw the defendant, whom he knew, seated on a large, weathered brown chair; another male, Elvin Pena, sitting on the left arm of that chair; and a third male sitting on a milk crate on the other side of the chair from Pena. Officer Dervan told Officer O'Loughlin that he saw Pena "flick[ ] something" to the ground, and the two officers stopped their vehicle and got out. Officer Dervan went to the area where Pena had flicked the object and recovered a plastic bag of white powder. Officer O'Loughlin approached the defendant.

The defendant had a bottle of rum with the top askew between his feet. Officer O'Loughlin testified that he understood there is a Boston city ordinance that prohibits open containers of alcohol "on public ways where the public has [the] right of access and even on private property without the owner's permission." Based on his understanding of this ordinance, Officer O'Loughlin ordered the defendant to "get up off the chair" so he could "do a search incident to arrest."

The defendant complied but upon standing, he twice tried to reach into his right pants' pocket. Officer O'Loughlin twice commanded him not to do so, and then began a patfrisk. Immediately Officer O'Loughlin felt a small packet that he described as consistent with heroin or crack cocaine. The defendant then stated, "it's personal use." Officer O'Loughlin retrieved the item, which he testified appeared to be a bag of heroin. The defendant then took off his coat and handed it to Officer O'Loughlin, telling him to check the coat. Officer O'Loughlin did so, finding nothing further. The defendant then voluntarily pulled off his sneakers and handed them to Officer O'Loughlin, saying, "[G]o ahead, look, nothing. It's personal."

While this search was ongoing, Pena slid into the chair where the defendant had been sitting. Officer O'Loughlin asked Pena to step out of the chair, and when he stood, Officer O'Loughlin lifted the seat cushion and saw a sock placed in the corner of the chair. Officer O'Loughlin felt the sock and detected a firearm. The object was a fully loaded .22 caliber revolver. Both Pena and the defendant were placed under arrest.

The defendant filed a pretrial motion to suppress, inter alia, the firearm. After an evidentiary hearing, the motion judge denied the motion. Most importantly, the judge ruled that the defendant did not establish a reasonable expectation of privacy in the parking lot chair, so the search of the chair violated no Fourth Amendment or art. 14 interests.

The defendant thereafter stood trial, inter alia, on charges of (1) possessing a firearm without a license, and (2) unlawfully carrying a loaded firearm. The jury returned a guilty verdict on both charges on September 30, 2015.

Discussion. 1. The search and seizure issues. We first address whether the search of the chair, which yielded the gun, violated the Fourth Amendment or art. 14. As the Supreme Judicial Court has made clear, art. 14 and the Fourth Amendment protect privacy interests, so any challenge under these provisions must show an infringement of a person's privacy. See, e.g., Commonwealth v. Rice, 441 Mass. 291, 295 (2004) ; Commonwealth v. Rodriguez, 456 Mass. 578, 590 n.12 (2010), citing Commonwealth v. Mubdi, 456 Mass. 385, 393 (2010). The key issue thus is whether the defendant established any "reasonable expectation of privacy" in the chair. See Commonwealth v. Mubdi, 456 Mass. at 391. We hold that no such interest was shown on the record.

At the outset, we note that our conclusion does not turn on whether the defendant established "standing" to mount a challenge to the search. Our case law is clear that a person has "automatic standing" to contest the lawfulness of a warrantless search where, as here, "possession of the seized evidence ... is an essential element of guilt." Commonwealth v. Amendola, 406 Mass. 592, 601 (1990). But having automatic standing does not necessarily establish a reasonable expectation of privacy in the place searched. As the Supreme Judicial Court explained in Commonwealth v. Mubdi, 456 Mass. at 392-393, the automatic standing cases do not relieve a criminal defendant of the need to show that someone had a protectable privacy interest:

"Where the defendant has automatic standing, the defendant need not show that he has a reasonable expectation of privacy in the place searched.
"...
"The defendant, however, still must show that there was a search in the constitutional sense, that is, that someone had a reasonable expectation of privacy in the place searched, because only then would probable cause, reasonable suspicion, or consent be required to justify the search."

(Emphasis in original).

The defendant failed to show an expectation of privacy here. The chair in question was outdoors, in a parking area that was unguarded, unrestricted, and frequented by residents and nonresidents alike. The evidence was that the weathered chair had been outside for a long time, in the same location. The chair was not in a home or building, or associated with a home or building, and for all that appears in the record it was abandoned. As Mubdi holds, the defendant had the burden to show that someone had a reasonable expectation of privacy in the chair, and no such evidence was adduced. Id. at 392. See Commonwealth v. Montanez, 410 Mass. 290, 301-303 (1991).

Since there was no reasonable expectation of privacy in the chair, it follows that there was no Fourth Amendment or art. 14 violation in searching it, and no basis for suppressing the firearm found in it.

2. Sufficiency of evidence. The defendant also challenges the jury verdict, claiming that there was insufficient evidence to establish his possession of the gun. In evaluating sufficiency, this court determines 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, 443 U.S. 307, 318-319 (1979). Accord Commonwealth v. Blevins, 56 Mass. App. Ct. 206, 211 (2002). "Circumstantial evidence is competent to establish guilt beyond a reasonable doubt," and in evaluating the evidence we will consider not only direct evidence but also the "reasonable and possible" inferences, provided they are "not too remote in the ordinary course of events, or forbidden by any rule of law." Commonwealth v. Cotto, 69 Mass. App. Ct. 589, 591-592 (2007) (quotations omitted).

Here the case against the defendant was not based upon actual possession, but upon constructive possession. The defendant was never observed in actual possession of the gun. Nor was there any fingerprint or deoxyribonucleic acid evidence. Our case law has addressed constructive possession on many occasions, in varying fact patterns. To prove constructive possession, it is not sufficient merely to show the defendant was located near the item in question-e.g., illegal drugs or a firearm. As we said in Cotto, 69 Mass. App. Ct. at 592 (quotation omitted): "Presence alone cannot show the requisite knowledge, power, or intention to exercise control over the contraband, but presence supplemented by other incriminating evidence, will serve to tip the scale in favor of sufficiency."

Here there was sufficient evidence for the jury to find the defendant guilty of possessing the firearm, although we acknowledge the question is a close one. When he was encountered, the defendant was seated on the chair in which the gun was located, and although the gun was not in his actual possession he could easily have reached it, as it was within reach of his left hand. It was 1:30 A.M. in a parking lot frequented by a variety of people, including five other individuals that evening. While proximity to the gun alone is not enough, it can still be powerful evidence, and the jury could readily infer that in those circumstances, the person who possessed the gun likely would stay very close to it, and would not leave it to be found by someone else.

And here, proximity was not the only evidence of possession. The jury also heard about the defendant's behavior when he was arrested. The defendant voluntarily took off his coat, and showed it to the officer. He then voluntarily took off his shoes, although he was in an asphalt parking lot littered with debris. He also "inched" away from the chair, ultimately moving an estimated five feet away. Finally, the jury were told that the arresting officer had interacted with the defendant before the night in question, and that whereas previously the defendant had been "very calm," on this night he was "very nervous and very fidgety."

On this evidence the jury could have drawn reasonable inferences that the defendant's behavior coupled with the location of the gun showed the elements of constructive possession-knowledge of the firearm and the ability and intent to control it. The jury could have inferred that the defendant's behavior-particularly the voluntary removal of his shoes while he moved away from the chair-was intended to distract the officer's attention from the chair and the gun. They could have concluded that the totality of the defendant's actions, including his voluntary removal of the clothing that he offered to the officer and his evident nervousness, showed consciousness of guilt.

In short, there was sufficient evidence here, in addition to the defendant's proximity to the weapon, for the jury to find guilt beyond a reasonable doubt.

Judgments affirmed.

      Officer O'Loughlin was the only witness at the evidentiary hearing.

      The defendant was charged at the time not only with gun and ammunition possession charges, but also with public drinking, and possession of illegal drugs. The drug charge was dismissed prior to trial, and the trial judge granted judgment notwithstanding the jury verdict on the subsequent public drinking conviction. Because the drug and public drinking charges are not before us on appeal, we do not address the search and seizure issues with respect to the alleged drugs, and specifically we do not confirm that the "arrest" for public drinking was appropriate. We include these facts, however, as they are an integral part of the entire factual narrative.

      The jury also found the defendant guilty of violating the Boston ordinance prohibiting public drinking, and of unlawful possession of ammunition. The judge entered judgment notwithstanding the verdict as to the public drinking charge, and the Commonwealth dismissed the possession of ammunition charge at sentencing.

      The defendant does not appear to argue, nor could he, that even if there is no reasonable expectation of privacy in the chair, the gun should nevertheless be suppressed as the fruit of the prior, allegedly unlawful, arrest. Here the gun was secreted in the chair before the police took any action that evening. See Commonwealth v. Rodriguez, 456 Mass. at 587 (no fruit of poisonous tree issue if drugs had been dropped on ground in public park before police stopped defendant). See also Commonwealth v. Porter P., 456 Mass. 254, 259 (2010) ("If no one has a reasonable expectation of privacy in the place searched, the police are free to search that place without a warrant and without probable cause, as often as they wish").

      The facts adduced at trial were very similar to those adduced at the suppression hearing. At trial, the judge struck testimony that the defendant had drugs on his person, and also struck the statement, "it's personal use." However, the jury heard testimony that Officer O'Loughlin found an "item" in the defendant's coat.

      The defendant also argues on appeal that Officer O'Loughlin's testimony at trial regarding prior interactions with the defendant brought in improper evidence of "prior bad acts." The contention is without merit, because the trial judge properly limited the officer's testimony so that he gave no evidence of a prior arrest-merely prior "interactions." There was thus no prior bad acts evidence admitted at trial.

      The defendant argues that the evidence points equally to Pena, and cites cases for the proposition that "[w]hen the evidence tends equally to sustain either of two inconsistent positions, neither of them can be said to have been established by legitimate proof" (emphasis supplied). Commonwealth v. Carbello, 33 Mass. App. Ct. 616, 619 (1990). We think the principle inapplicable here, in the context of review of a jury verdict and where, in any event, the propositions are not necessarily inconsistent, as the law would allow the conclusion that both the defendant and Pena were in constructive possession of the gun. See Commonwealth v. Elysee, 77 Mass. App. Ct. 833, 847-849 (2010) (finding evidence sufficient to support finding of constructive possession of firearm by two defendants).
      As to the defendant's argument that there was insufficient evidence of the firearm being loaded, we note that the firearm in question was a revolver, that there was testimony the revolver was loaded when seized, and that a photograph of the revolver as seized was introduced in evidence, as was the revolver itself. "Where, as here, the firearm was a revolver ..., a rational jury could infer that those who possessed the firearm knew that it was loaded with ammunition." Commonwealth v. Jefferson, 461 Mass. 821, 828 n.7 (2012).


text:
    B. Ruben DEWAYNE v. Sumner DAVIS & others.
    16-P-1584
    Appeals Court of Massachusetts.
    Entered: February 5, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Dianette R. Keith and Patricia White-Davis.

   The plaintiff, B. Ruben DeWayne, claims to have a prescriptive easement over the defendants' registered property to reach his garage, which was built in 1924. He contends the easement should have been noted in the 1972 decree of registration of the defendants' property and that its absence is due to submission of inaccurate or incomplete plans which, he asserts, amounts to perpetrating a fraud on the court and renders the decree void ab initio. A judge of the Superior Court allowed the defendants' motion for summary judgment and dismissed the plaintiff's complaint. We affirm.

"[F}or registered land to be burdened by an easement, generally the easement must be shown on the certificate of title." Hickey v. Pathways Assn., 472 Mass. 735, 754 (2015). "This is so whether the easement in question was granted by deed or acquired by prescription. To hold otherwise would undermine the integrity of the registration system, for over every title would loom the possibility of an undisclosed but valid interest in the land acquired through prescriptive use." Tetrault v. Bruscoe, 398 Mass. 454, 461 (1986). Here, no easement is noted in the decree or the certificate of title and even if an easement by prescription had existed before the registration decree, any such easement did not survive the registration proceedings. See id. at 459-460.

As the plaintiff points out, his predecessor in title objected to the registration claiming the same easement that the plaintiff claims in this action. "Before the Land Court issues a judgment of registration, it first must pass on the validity of asserted encumbrances.... Therefore, a certificate of title represents a determination by the Land Court that only those encumbrances appearing on the certificate are valid." Ibid.

To the extent the plaintiff contends that the decree was obtained through fraud by the filing of incomplete plans, where it is undisputed that the plaintiff's predecessors received notice and in fact responded to the registration proceedings, they had an opportunity to raise any issue regarding the accuracy of the plans at that time. Familiar principles of issue preclusion foreclose that argument now. See Putignano v. Treasurer & Receiver General, 55 Mass. App. Ct. 828, 831 (2002).

Judgment affirmed.

      Moreover, if the plaintiff had a valid argument that the registration decree is void, the Legislature has "provided, reasonably we think, that any attack on the integrity of a judgment of registration may only be asserted in the Land Court, the forum from which the challenged judgment issued." Tetrault, 398 Mass. at 460. "[T]he Land Court has the resources of its engineers, records, and specialized knowledge which make it the more suitable forum to form judgments in cases that will result in changes in the state of a registered land title." Feinzig v. Ficksman, 42 Mass. App. Ct. 113, 117 (1997).


text:
    ADVANCED PATIENT CARE, LLC v. PARTNERS HEALTHCARE SYSTEM, INC.
    16-P-1728
    Appeals Court of Massachusetts.
    Entered: February 5, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Advanced Patient Care, LLC (APC), brought this action against Partners HealthCare System, Inc. (Partners), after a business relationship between them failed. Among other claims, APC asserted breach of contract, breach of the implied covenant of good faith and fair dealing, defamation, commercial disparagement, and violation of G. L. c. 93A. A judge allowed Partners's motion for summary judgment on each of these claims, and APC appeals. As Partners agrees, there are disputed issues regarding a portion of APC's claims for breach of contract and breach of the implied covenant of good faith and fair dealing. We therefore vacate a portion of the judgment and remand for further proceedings on those issues only. In all other respects, we affirm.

Background. The following facts are undisputed. APC is a company that produces wound care products known by the name of GentleOne. Partners is a hospital and physician network, which includes Brigham and Women's Hospital (BWH) and Massachusetts General Hospital (MGH). In 2009 APC marketed GentleOne products to BWH. After a surgeon evaluated the samples, Dave Dolan, then a nursing director at BWH, sought authorization from Partners to purchase the products.

Thereafter, APC participated in an eleven-step process to obtain Partners's approval for use of GentleOne at BWH. Upon completion of the process, APC and Partners entered into a "materials agreement" in October of 2010. The materials agreement, which had a term of one year, states that "APC will provide to Partners the materials described in Exhibit A hereto ... (the 'Deliverables')." It further states that "[a]ll purchases of Deliverables must be approved in writing, in advance, by Partners." Although exhibit A sets out product descriptions and unit pricing for the "Deliverables," the materials agreement nowhere specifies the quantities of product to be bought or sold.

Following execution of the materials agreement, Dolan and APC sales representative Mark Cyr discussed the projected use of GentleOne at BWH. In an electronic mail message (e-mail) dated November 21, 2010, Cyr wrote that he and Dolan had determined the projected use to be thirty-two boxes of the "starter dressings" per month, or 192 boxes over six months, and sixty-four boxes of the "cover dressings" per month, or 384 boxes over six months. Partners forwarded these projections to distributor Owens & Minor (O&M), which Partners used as an intermediary to place its orders for GentleOne.

In January of 2011, Cornel Ramos, a product manager at Partners, instructed O&M to purchase a two-month supply of GentleOne. O&M, however, ordered cases instead of boxes, resulting in an order that was ten times larger than what Partners expected. Nonetheless, APC delivered the order to O&M in April of 2011, and O&M paid for it in full.

Subsequently, O&M and APC discussed how to handle the surplus inventory. In August of 2011, APC agreed to the return of 150 boxes, and O&M agreed to continue to stock GentleOne, subject to APC paying a stocking fee and committing to sell fifty percent of its inventory by the end of 2011. When APC failed to meet that goal, it agreed to take back more inventory, for a total of 1,048 boxes. APC did not refund O&M for the returned boxes.

Meanwhile, in September of 2011, Dolan left BWH and later joined APC as a sales representative. In January of 2012 (after the materials agreement had expired), his replacement, Eileen O'Connell, told Cyr that BWH had decided to discontinue using GentleOne. According to Cyr, at this meeting, O'Connell falsely referred to a "recall" of the product. The same month, APC tried to sell GentleOne to clinicians at MGH. Dolan set up a meeting with MGH nurse manager Annette Levitt, but Levitt canceled, stating that she had "been advised by Partners ... that there is currently a recall on some of the products."

In December of 2012, APC served a demand letter on Partners alleging, among other things, breach of contract and violations of G. L. c. 93A. The parties engaged in discussions throughout early 2013, but Partners ultimately decided not to reinstate APC as a vendor.

Discussion. We review the judge's decision de novo, taking the evidence in the light most favorable to APC. See Boazova v. Safety Ins. Co., 462 Mass. 346, 350 (2012). Summary judgment is appropriate if Partners can prove that APC "has no reasonable expectation of proving an essential element of its case." Ibid.

1. Breach of contract (count 1). As APC clarified at oral argument, its claim of breach of contract rests on two grounds: (1) Partners's failure to pay for the three orders totaling $35,160, see note 2, supra; and (2) its refusal to continue to buy GentleOne products. Regarding the first ground, Partners conceded at oral argument that there are disputed issues as to whether the $35,160 is owed to APC and, if so, whether it is O&M or Partners that is liable for it. Further proceedings are thus required on that portion of APC's claim.

Regarding the second ground, however, APC can point to no contract that required Partners to buy more product than it did, whether before or after the materials agreement expired. It is undisputed that the materials agreement did not specify a quantity of GentleOne to be bought or sold, but instead contemplated that purchases would be governed by future "writing[s]" (i.e., purchase orders), which had to be "approved ... in advance, by Partners." Thus, while the materials agreement may have been enforceable with respect to the topics it covered, such as pricing, it imposed no obligation on Partners to purchase any particular quantity of product, or any product at all for that matter. See Gill v. Richmond Co-op. Assn., Inc., 309 Mass. 73, 80 (1941) (no enforceable contract where buyers "promised nothing except to buy such milk as they might order"); Cabot Corp. v. AVX Corp., 448 Mass. 629, 640 (2007) ("[A] 'contract' to purchase an unspecified amount of goods is not a contract at all").

We disagree with APC's contention that the parties' e-mails demonstrate that Partners committed itself to purchase "at least as much as [Partners's] projected usage" of GentleOne. One e-mail sets forth APC's unilateral "expectation" of the amount of product it could produce per month, and the remainder merely provide projections of Partners's usage for the ensuing six-month period. Nowhere did Partners promise to buy at least as much as the projections or otherwise commit itself to buy any specified quantity of product. Cf. Cabot Corp., 448 Mass. at 640 (language in letters that " '[i]t [was buyer's] intention to purchase the following materials' [was] not a binding commitment by [the buyer] to make any purchases at all"). Thus, as no contractual provision required Partners to order more product than it did, there is no triable issue on this aspect of APC's claim.

2. Breach of implied covenant of good faith and fair dealing (count 2). The implied covenant of good faith and fair dealing prevents a party to a contract from "do[ing] anything that will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract." Anthony's Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 471-472 (1991). "The covenant may not, however, be invoked to create rights and duties not otherwise provided for in the existing contractual relationship." Uno Restaurants, Inc. v. Boston Kenmore Realty Corp., 441 Mass. 376, 385 (2004). APC's failure to demonstrate a contractual breach therefore dooms its claim of breach of the covenant (other than the portion relating to the $35,160 in unpaid orders).

Arguing otherwise, APC appears to suggest that the covenant imposed an independent obligation on Partners to renew the materials agreement and to continue using APC as a vendor. That is not so. The covenant governs "the performance of existing [contractual] terms," but not "the creation of new terms." Renovator's Supply, Inc. v. Sovereign Bank, 72 Mass. App. Ct. 419, 433 (2008). The materials agreement contains no provision that speaks to renewal. Thus, regardless of its reasons, Partners did not breach the covenant by declining to renew and by terminating APC as a vendor. See id. at 433-434 (defendant did not breach covenant where "actionable conduct related entirely to the formation of a further ... agreement and not to the performance of the existing agreement").

Partners was therefore entitled to summary judgment on this claim, excepting the portion concerning the unpaid $35,160, as to which disputed issues remain.

3. Defamation and commercial disparagement (counts 4 and 5). To prove defamation or commercial disparagement, APC must show that Partners published a false statement about APC to a third party. See White v. Blue Cross & Blue Shield of Mass., Inc., 442 Mass. 64, 66 (2004) (defamation); HipSaver, Inc. v. Kiel, 464 Mass. 517, 523 (2013) (commercial disparagement). APC bases its claims on four alleged uses of the word "recall" by (1) BWH employee O'Connell at a meeting, (2) MGH employee Levitt in an e-mail to APC, (3) O&M in two "debit memos" sent to APC, and (4) Partners employee Ramos to Levitt. Even assuming, however, that the first three statements can be imputed to Partners, they plainly were not communicated to a third party. O'Connell's alleged statement was made only to representatives of APC, Partners, and BWH. Levitt's and O&M's statements were made only to APC itself. Thus, with respect to these statements, APC cannot prove the publication element of its claims.

Regarding Ramos's alleged statement to Levitt, we agree with the judge that the statement falls within the "common business interest" privilege. This conditional privilege applies "if the publisher of the statement and the recipient have a common interest in the subject and the statement is 'reasonably calculated to further or protect that interest.' " Downey v. Chutehall Constr. Co., 86 Mass. App. Ct. 660, 666 (2014), quoting from Sheehan v. Tobin, 326 Mass. 185, 190-191 (1950). Our "courts have consistently recognized the common interest privilege within the business context." Ibid. (collecting cases).

APC does not contest that Partners and MGH had a legitimate and common business interest in evaluating whether MGH should use GentleOne products, and that Ramos's statement furthered their common interest. Cf. Humphrey v. National Semiconductor Corp., 18 Mass. App. Ct. 132, 133-134 (1984) ; Downey, 86 Mass. App. Ct. at 666. APC argues, however, that the conditional privilege was lost because Ramos made the statement with reckless disregard for its falsity. See Downey, supra at 667 (to defeat conditional privilege, plaintiff must prove that defendant's conduct was reckless). But in support, APC asserts only that Ramos failed to exercise "diligence," which, even if true, does not constitute recklessness. See ibid., quoting from HipSaver, Inc., 464 Mass. at 530 ("[R]eckless conduct is not measured by whether a reasonably prudent man would have published or would have investigated before publishing"). Furthermore, the undisputed facts are that, upon learning that Levitt believed GentleOne to be recalled, Ramos quickly followed up to make "clear that the product is not on a Recall." In light of this evidence, APC has no reasonable expectation of proving that Ramos acted recklessly.

4. Violation of G. L. c. 93A (count 6). Finally, APC contends that Partners's conduct was unfair and deceptive under G. L. c. 93A. Because both APC and Partners are engaged in trade or commerce, "a good faith dispute as to whether money is owed, or performance of some kind is due, is not the stuff of which a c. 93A claim is made." Duclersaint v. Federal Mort. Assn., 427 Mass. 809, 814 (1998). It is evident that APC and Partners had "a genuine difference of opinion," ibid., i.e., "an ordinary ... dispute without conduct that was unethical, immoral, oppressive, or unscrupulous." Ibid., quoting from Kobayashi v. Orion Ventures, Inc., 42 Mass. App. Ct. 492, 505 (1997). We therefore agree with the judge that APC has failed to identify any misconduct that rises to the level of a c. 93A violation.

Conclusion. So much of the judgment as dismisses counts 1 and 2, as they relate to the $35,160 in unpaid orders, 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, affirmed in part.

      Another claim, for negligence, was dismissed earlier in the proceeding. APC does not appeal from that dismissal.

      According to APC, it owed no refund because Partners caused the ordering error and failed to pay for three subsequent orders totaling $35,160. APC alleges that these orders were placed on June 22, 2011; September 28, 2011; and October 5, 2011.

      The parties dispute the reasons for BWH's decision, but the dispute is immaterial to our analysis.

      A few days later, Ramos e-mailed Levitt, stating that he "hope[d] to be clear that the product is not on a Recall. It is just that it does not adhere and absorb as the rep has claimed."

      The parties dispute the reasons for Partners's decision, but this dispute is also immaterial to our analysis.

      The judge correctly determined that Brewster Wallcovering Co. v. Blue Mountain Wallcoverings, Inc., 68 Mass. App. Ct. 582 (2007), does not help APC's cause. That case involved a requirements contract, i.e., a contract that "measures the quantity [of goods to be sold] by ... the requirements of the buyer." Id. at 597, quoting from G. L. c. 106, § 2-306(1). Cf. Gill, 309 Mass. at 80 (buyers' promise "to buy such milk as they might order ... was not like a promise to buy such milk as they might need in their business"). The materials agreement is not a requirements contract, nor is it an output contract, which measures quantity according to "the output of the seller." Brewster Wallcovering Co., 68 Mass. App. Ct. at 597. To the contrary, it specifically provides that "[n]othing ... shall limit APC's right to provide Deliverables to any other entity, nor [sic ] Partners' right to procure any material(s) from any other entity."

      In any event, as the judge noted, the ordering error resulted in Partners buying far in excess of the projections.

      As APC acknowledged at oral argument, to impute O'Connell's statement to Partners, BWH and Partners must be treated as the same entity.

      We will assume that Ramos's statement can be ascribed to Partners and that Levitt qualifies as a third party.


text:
    COMMONWEALTH v. HO HUYNH.
    17-P-17
    Appeals Court of Massachusetts.
    Entered: February 5, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury trial in the Superior Court, Ho Huynh, the defendant, was convicted of armed home invasion, G. L. c. 265, § 18C, and assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A. Although the defendant did not object to the prosecutor's closing argument at trial, on appeal he contends that the closing was so egregiously improper that a new trial is warranted. We affirm the convictions.

In determining whether improper statements in closing argument require reversal, we evaluate "all the errors in the context of the entire argument and the case as a whole." Commonwealth v. Santiago, 425 Mass. 491, 500 (1997). "[W]e consider whether defense counsel made a timely objection; whether the judge's instructions mitigated the error; whether the error was central to the issues at trial or concerned only collateral matters; whether the jury would be able to sort out any excessive claims or hyperbole; and whether the Commonwealth's case was so strong that the error would cause no prejudice." Commonwealth v. Harris, 443 Mass. 714, 732 (2005). However, "[w]e determine whether [any] errors occurred, before determining their cumulative effect." Commonwealth v. Leary, 92 Mass. App. Ct. 332, 337 (2017).

First, the defendant claims that the prosecutor improperly appealed to the jury's sympathy when, referring to the victim's sister and girl friend, he said, "When someone barges into your house with a gun, points the gun at your brother or boyfriend and begins to attack, there's a good chance you're not going to remember every single detail of what happened." The defendant contends that this argument violated the rule that "[t]he jury should not be asked to put themselves 'in the shoes' of the victim, or otherwise be asked to identify with the victim." Commonwealth v. Bizanowicz, 459 Mass. 400, 420 (2011). "Asking that the jury focus on the victim distracts attention from the actual issues, and invites the jury to decide guilt or innocence on the basis of sympathy." Ibid.

The challenged argument was not an improper appeal to sympathy or emotion. The prosecutor did not ask the jurors to stand in the shoes of the witnesses to the crime, but rather to use their life experiences and common sense to evaluate the minor inconsistencies in witnesses' testimony. Such an argument is proper. See Commonwealth v. Valentin, 474 Mass. 301, 310 (2016) ("Inviting the jurors to draw upon their own life experience and common sense is permissible"). Although the prosecutor couched his argument in second-person pronouns, the mere use of the words "your" and "you're" does not amount to an improper appeal to sympathy. The propriety of closing argument "does not turn on the presence or absence of the pronoun. Rather it is what is being communicated that is key." Commonwealth v. Jenkins, 458 Mass. 791, 797 (2011). In context, "[w]e think the thrust of the argument was plainly apparent, and that the jury could not have understood it for anything more than ... to explain that [the witnesses'] testimony ... had been affected by the stress of what they had seen." Commonwealth v. Valentin, 420 Mass. 263, 274 (1995).

Second, the defendant claims the prosecutor improperly impugned the defense by arguing, "The case was clear when [the police] arrived at the scene. And anything the police are alleged not to have done is just the defendants grasping at straws. And by making these accusations, all they are doing is creating a distraction, a distraction from what happened." The defendant contends that these comments materially influenced the convictions by distracting the jury from their role as the fact finder. See Commonwealth v. Awad, 47 Mass. App. Ct. 139, 142 (1999). We disagree.

"We have often stated that defense counsel's trial tactics are not immune from comment in a prosecutor's closing argument provided the comment is based on evidence heard by the jury." Commonwealth v. Cohen, 412 Mass. 375, 388 (1992). "It is also not improper for a prosecutor to comment on a defendant's attempt to confuse or distract the jury by diverting their attention from the strong evidence of the defendant's guilt." Ibid.

Here, defense counsel's closing argument focused on discrediting the thoroughness of the police investigation. The prosecutor responded by characterizing the defendant's accusations as distractions meant to divert the jury's attention from the strength of the Commonwealth's case. Such an argument is permissible. See ibid. ("It is not improper for the prosecutor to suggest to the jury that the defendant attempted to 'fool' them"); Commonwealth v. Raposa, 440 Mass. 684, 697 (2004) (nothing improper in prosecutor's statement that defense counsel was able to "spin gold from straw").

Furthermore, we are confident that any error in the closing argument was not prejudicial. Without an objection, we consider "whether there was an error that created a substantial risk of a miscarriage of justice." Commonwealth v. Grandison, 433 Mass. 135, 142 (2001). Defense counsel's failure to object, "[a]lthough not dispositive of the issue, ... is some indication that the tone, manner, and substance of the now challenged aspects of the prosecutor's argument were not unfairly prejudicial." Commonwealth v. Toro, 395 Mass. 354, 360 (1985). The verdicts showed that the jurors "had the capacity to discount hyperbole," Commonwealth v. Anderson, 411 Mass. 279, 287 (1991), as they convicted the defendant on only two of the eight counts charged. "Lastly, and most importantly, we perceive no substantial risk of a miscarriage of justice because the Commonwealth presented a very strong case against the defendant." Leary, 92 Mass. App. Ct. at 340.

Judgments affirmed.

      The jury acquitted the defendant of six other charges. The defendant was tried together with a codefendant, who was found guilty on two of his six charges.


text:
    COMMONWEALTH v. Hakeem COOPER.
    17-P-185
    Appeals Court of Massachusetts.
    Entered: February 14, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a bench trial in the Boston Municipal Court, the defendant, Hakeem Cooper, appeals from his conviction of indecent assault and battery on a person over fourteen, in violation of G. L. c. 265, § 13H. The defendant specifically argues that his motion to dismiss the charge for lack of probable cause and his motions for a required finding of not guilty were denied in error. We affirm.

I. Background. "We summarize the facts as the [trial judge] could have found them, in the light most favorable to the Commonwealth," reserving some facts for later discussion. Commonwealth v. Sanna, 424 Mass. 92, 93 (1997). At the time of the incident, the defendant was an inmate in the segregation unit at the Suffolk County house of correction at South Bay (South Bay). As part of her job responsibilities as a nurse at South Bay, the victim administered medications to the inmates. On June 14, 2014, the victim, accompanied by a corrections officer, William Ward, was administering medication to the defendant through the trap door of his jail cell. According to the victim's testimony, the defendant "had a grin on his face" and "leaned his groin forward and touched [her] hand with his penis through his Long Johns" when she placed a cup of water on the sill within the cut-out of the cell door. The victim pulled her hand back from the door and notified Ward of what had just happened. The victim reported the incident to an assistant deputy superintendent of the Suffolk County house of correction, Brian Dacey. Ward and Dacey each created an incident report and testified at trial.

Ward's incident report, which he read out loud at trial, states that the victim "accused [the defendant] of putting his groin in the region at the trap door of his cell while [the victim] proceeded to give [the defendant] his medication. [The victim's] hand brushed [the defendant's] groin." Ward also testified that at the time of the incident he was looking at the defendant's face through a window in the door and not at the trap door; Ward did not observe the defendant touch the victim or "press anything up against the trap door area."

Dacey's incident report, which was filed with the criminal application, states that the defendant "purposely placed his clothed genitals to the area of the trap door so that [the victim's] hand would come into contact with his genitals."

Prior to his trial, the defendant had moved to dismiss the charge for lack of probable cause. A judge, who was not the trial judge, denied this motion. After the Commonwealth rested at trial, and again at the close of all the evidence, the defendant moved for a required finding of not guilty. The trial judge denied both motions and found the defendant guilty of indecent assault and battery on a person over the age of fourteen.

II. Motion to dismiss the complaint for lack of probable cause. We review a judge's ruling on a motion to dismiss for lack of probable cause de novo. Commonwealth v. Humberto H., 466 Mass. 562, 566 (2013). The defendant argues that the facts presented in the complaint were insufficient to establish probable cause that he committed an indecent assault and battery on the victim. Specifically, there were no facts alleged that "the defendant affirmatively moved his body to contact [her] hand." We disagree.

"The type of conduct that constitutes indecent assault and battery on a person over fourteen years of age is not defined in G. L. c. 265, § 13H. A definition adopted by this court provides: '[a]n indecent assault and battery is essentially an act or series of acts which are fundamentally offensive to contemporary moral values .... [I]t is behavior which the common sense of society would regard as immodest, immoral and improper .... Thus, in order to prove indecent assault and battery, the Commonwealth must prove ... that the defendant committed an intentional, unprivileged and indecent touching of the victim.' " (Footnote omitted.) Commonwealth v. Mosby, 30 Mass. App. Ct. 181, 184 (1991), quoting from Commonwealth v. Perretti, 20 Mass. App. Ct. 36, 43-44 (1985). To overcome a motion to dismiss for lack of probable cause, the complaint application need only set forth " 'reasonably trustworthy information sufficient to warrant a reasonable or prudent person in believing that the defendant has committed the offense.' Probable cause is considerably less than proof beyond a reasonable doubt, so evidence that is insufficient to support a guilty verdict might be more than sufficient to establish probable cause." Humberto H., supra at 565 (citations omitted).

Here, the incident report filed with the criminal application provided facts that the defendant "purposely" moved his body to an area where "[the victim's] hand would come into contact with his genitals." The defendant affirmatively moving his genitals to the area of the trap door where the victim's hand would come into contact with them provided the motion judge with sufficient facts to establish probable cause that the defendant intentionally committed an indecent assault and battery on the victim. The motion judge, therefore, did not err in denying the defendant's motion to dismiss the complaint for lack of probable cause.

III. Motions for a required finding of not guilty. In reviewing a denial of a motion for a required finding of not guilty, we must determine whether the evidence was sufficient to permit any rational fact finder to conclude that the essential elements of the crime had been proven beyond a reasonable doubt. See Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). The defendant argues that there was insufficient evidence to support a finding that the defendant's act was an offensive or harmful battery, intentional, or indecent. In considering these claims, we take the evidence in the light most favorable to the Commonwealth. See id. at 677.

The defendant maintains that the judge made an impermissible "leap of conjecture" concerning who touched whom because there was differing testimony at trial. We disagree. Inconsistencies in testimony go to the credibility of the witness and do not necessarily affect the sufficiency of the evidence. See Mosby, 30 Mass. App. Ct. at 185. "Once sufficient evidence is presented to warrant submission of the charges to the [fact finder], it is for the [fact finder] alone to determine what weight will be accorded to the evidence." Ibid., quoting from Commonwealth v. Hill, 387 Mass. 619, 624 (1982).

Lastly, despite the defendant's arguments, there was sufficient evidence to permit a reasonable fact finder to conclude beyond a reasonable doubt that the defendant intended to touch the victim, see Commonwealth v. Holbrook, 86 Mass. App. Ct. 391, 393-394 (2014), and that such touching was indecent. See Commonwealth v. Castillo, 55 Mass. App. Ct. 563, 566 (2002) ("A touching is indecent when, judged by the 'normative standard' of societal mores, it is 'violative of social and behavioral expectations,' ... in a manner 'which [is] fundamentally offensive to contemporary moral values ... [and] which the common sense of society would regard as immodest, immoral and improper' " [quotation omitted] ). Considering the circumstances here, the defendant's contact with the victim through the trap door was not inadvertent, and the "common sense of society would regard" an individual touching another with their genitals as "immodest, immoral and improper." Ibid. (quotation omitted).

Thus, the trial judge did not err in finding beyond a reasonable doubt that the defendant's act constituted an indecent assault and battery on the victim.

Judgment affirmed.


text:
    COLLABORATIVE FOR EDUCATION SERVICES, INC. v. SEIU LOCAL 509.
    17-P-392
    Appeals Court of Massachusetts.
    Entered: February 14, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After an arbitrator decided that a dispute between these two parties was subject to arbitration under their collective bargaining agreement (CBA), Collaborative for Education Services, Inc. (Collaborative) filed a complaint in Superior Court, and moved "to vacate arbitrator's award, to stay arbitration and for declaratory judgment." SEIU Local 509 (union) filed a cross motion to confirm the arbitrator's decision. A Superior Court judge allowed the union's motion and denied Collaborative's motion, and entered judgment accordingly, from which Collaborative now appeals. We affirm.

Background. At issue before us is an interpretation of the CBA and how it relates to conditional employees. The CBA states that an employee must work a "conditional employment period of three consecutive years," during which the "employee may be discharged, laid off, suspended or demoted without recourse by the employee or the Union under the grievance or arbitration procedures established by this Agreement" (conditional employment provision). The CBA further contains a nondiscrimination provision, which states that neither party will "discriminate against any employee in violation of any law on the basis of ... union activity." Finally, the CBA lays out a grievance procedure that provides that if either party disputes the application or interpretation of the CBA and the parties cannot reach an agreement, it may be submitted to arbitration.

The grounds for this appeal began in June, 2014, when Collaborative opted not to renew the contract for a conditional employee (employee) who was nearing the end of her conditional employment period. The union subsequently filed a grievance on behalf of the employee, asserting that her termination was the result of her union activity and therefore violated the nondiscrimination provision of the CBA. Collaborative responded to that grievance by stating that neither the employee nor the union on the employee's behalf was entitled to file such a grievance because the employee was a conditional employee. In response, the union sought arbitration.

The substance of the grievance has never been addressed, as the parties agreed to bifurcate the arbitration and address first whether the grievance is even subject to arbitration. The arbitrator determined that the matter was arbitrable as the asserted discrimination directly related to the employee's termination, and that it was unreasonable to interpret the conditional employment provision as extending so far that no remedies would exist for unlawfully discriminatory terminations. While recognizing that the employee was a conditional employee under the CBA, the judge determined that the nondiscrimination provision applied to "any employee" and that the arbitrator's conclusion that the matter was subject to arbitration was a plausible interpretation of the CBA. Collaborative appeals.

As the issue before us is a "gateway dispute about whether the parties are bound by a given arbitration clause," we review the judge's decision de novo. Feeney v. Dell Inc., 454 Mass. 192, 198-199 (2009), quoting from In re Am. Express Merchants' Litig., 554 F.3d 300, 311 (2d Cir. 2009). See Commonwealth v. Philip Morris Inc., 448 Mass. 836, 844 (2007). Especially when a CBA contains a broad arbitration provision, such as the agreement in question, "[d]oubts should be resolved in favor of coverage." Local No. 1710, Intl. Assn. of Fire Fighters, AFL-CIO v. Chicopee, 430 Mass. 417, 421 (1999), quoting from AT & TTechnologies, Inc. v. Communications Wkrs., 475 U.S. 643, 650 (1986). Where an arbitration clause exists, "there is a presumption of arbitrability in the sense that '[a]n order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.' " Falmouth Police Superior Officers Assn. v. Falmouth, 80 Mass. App. Ct. 833, 838-839 (2011), quoting from Local No. 1710, supra. The presumption of arbitrability may be "successfully rebutted only if the party resisting arbitration shows either (1) the existence of an express provision excluding the grievance from arbitration or (2) the 'most forceful evidence' of a purpose to exclude the claim from arbitration." Sheriff of Suffolk County v. AFSCME Council 93, Local 419, 75 Mass. App. Ct. 340, 343 (2009), quoting from Paper, Allied-Industrial, Chem. & Energy Wkrs. Intl. Union Local 4-2001 v. Exxon Mobil Ref. & Supply Co., 449 F.3d 616, 620 (5th Cir. 2006).

In Falmouth Police, supra at 838-840, the presumption of arbitrability was successfully rebutted upon a showing that the agreement limited arbitrable grievances to violations of the terms of the agreement and the grievance did not fall under those specified terms. Collaborative asks us to read the conditional employment provision, which states that conditional employees have no recourse under the CBA's grievance or arbitration procedures upon being "discharged, laid off, suspended or demoted," as extending to include a termination that violates the CBA's nondiscrimination provision. Further, Collaborative suggests that the CBA, despite the fact that the nondiscrimination provision unambiguously applies to "any employee," establishes its point so clearly that there is a "positive assurance" that the CBA's arbitration provision cannot be utilized by conditional employees alleging discrimination. Id. at 838.

We consider the CBA "in a reasonable and practical way, consistent with its language, background, and purpose." Sheriff of Suffolk County, supra at 342 (quotation omitted). Absent clearer language in the CBA to support Collaborative's interpretation of the contract, and keeping in mind that such a conclusion would leave a conditional employee with no recourse under the CBA in the event of a discriminatory termination, we disagree with Collaborative. Having reviewed the CBA, we cannot say with positive assurance that the contract is not susceptible of the interpretation advanced by the union: that the nondiscrimination provision protects all employees and is separate and distinct from the conditional employment provision. As such, the CBA could be appropriately read to subject the grieved action-that the employee was allegedly terminated as the result of her union activity-to the CBA's arbitration provision. See Falmouth Police, supra at 838-840.

Judgment affirmed.

      The arbitrator wrote as follows: "It is fair to assume that if, during the bargaining for [the conditional employment provision], the Employer had said to the Union words to the effect of 'If you agree to our proposal, we will be able to terminate a conditional employee, with contractual impunity, on the grounds that this employee is gay or black or otherwise protected by the law, and you cannot grieve or arbitrate that termination,' the Union would not have knowingly signed on. It is important, therefore, to harmonize the two provisions so that both provisions are accorded their intended meaning."

      In Falmouth Police, supra at 835, the employee argued that his termination was not supported by just cause. The agreement in question provided for arbitration only in the event of a "violation of the terms of this Agreement." Id. at 835. Whether a termination must be accompanied by just cause was not addressed in the CBA, and the court concluded that the employee's grievance was not subject to the CBA's arbitration provision. Id. at 836-840