author: LEMIRE, J.

text:
    Matthew MCINTYRE & others v. ZONING BOARD OF APPEALS OF BRAINTREE & others.
    No. 17-P-1122.
    Appeals Court of Massachusetts, Suffolk..
    Argued March 9, 2018 Decided October 10, 2018
    Gerald M. Moody, Milford, for the plaintiffs.
    Deborah I. Ecker for zoning board of appeals of Braintree & others.
    Present: Lemire, Ditkoff, & McDonough, JJ.

      Christine McIntyre, Joseph Murphy, Jane Murphy, and Martine D. Murphy.

      Mento Enterprises, Inc.; JJM Myrtle Street Corporation; building inspector and code compliance officer of Braintree; and town of Braintree.

   LEMIRE, J.

The issue before us is whether a Land Court judge correctly dismissed the plaintiffs' complaint, which sought a determination that their appeal from the issuance of a building permit had been constructively approved pursuant to G. L. c. 40A, § 15. Because the plaintiffs failed to file an appeal from the issuance of the building permit within the time limit established by § 15, we affirm.

Background. On August 13, 2013, the building inspector and code compliance officer (building inspector) of Braintree (town) issued a building permit to Mento Enterprises, Inc. (Mento), for construction of a single family dwelling at 38 Myrtle Street in Braintree. The plaintiffs, owners of residential land abutting or in close proximity to the property, learned that a building permit had issued when construction activity began on August 14, 2013. On September 27, 2013, forty-four days after becoming aware of the construction, the plaintiffs filed an appeal with the zoning board of appeals (board). It is now undisputed that the appeal was untimely.

Nonetheless, the board held a public hearing on November 26, 2013, and voted to continue the hearing. After a weather-related delay, the board conducted an additional hearing on January 8, 2014, 103 days after the plaintiffs had filed their appeal. During the January 8 meeting, the board found that because the plaintiffs had failed to file a timely appeal from the building inspector's decision to grant the building permit as set forth in the first paragraph of G. L. c. 40A, § 15, the board lacked jurisdiction to consider the merits of the appeal. The board voted unanimously to deny the plaintiffs' request for relief, but did not file a decision on that date.

On January 17, 2014, 112 days after filing their appeal, the plaintiffs filed a notice of constructive approval of their appeal with the Braintree town clerk (town clerk) in accordance with the requirements set forth in the fifth paragraph of G. L. c. 40A, § 15. Later on that same day, the board filed with the town clerk its written decision denying the appeal on grounds that the appeal had been untimely. Neither the board nor the other defendants appealed from or took other action related to the plaintiffs' notice of constructive approval.

On January 30, 2014, the plaintiffs commenced this action in the Land Court seeking, among other relief, a declaratory judgment that their appeal to the board had been constructively granted. On June 8, 2017, on cross motions for summary judgment, the Land Court granted judgment in favor of the defendants, finding that because the plaintiffs had failed to file a timely appeal with the board, their appeal from the issuance of the building permit could not be constructively approved.

Statutory requirements. General Laws c. 40A, § 15, establishes the mechanism for appealing decisions of a local zoning enforcement officer to a board of appeals. Paragraph two provides that any appeal "shall" be taken within thirty days of the date of the order or decision appealed from, by filing a notice of appeal with the city or town clerk with a copy to the zoning administrator. Thereafter, there are a number of time requirements the board must satisfy. The board must hold a hearing open to the public within sixty-five days of the board's receipt of notice of such appeal and the board's decision must be made within one hundred days of the filing of an appeal unless the time is extended by written agreement between the "applicant" and the board of appeals. G. L. c. 40A, § 15. Finally, the board must reduce its decision to final written form and file it with the city or town clerk within fourteen days of the one hundred-day deadline. Id. See Burnham v. Hadley, 58 Mass. App. Ct. 479, 482-483, 790 N.E.2d 1098 (2003) ; O'Kane v. Board of Appeals of Hingham, 20 Mass. App. Ct. 162, 478 N.E.2d 962 (1985). At least where the board has jurisdiction over the appeal, "[f]ailure by the board to act within said one hundred days ... shall be deemed to be the grant of the appeal ...." G. L. c. 40A, § 15, fifth par.

The petitioner has fourteen days following expiration of the board's one hundred-day deadline to file a notice of constructive approval with the city or town clerk and notify "parties in interest," as defined in G. L. c. 40A, § 11. Id. See Uglietta v. City Clerk of Somerville, 32 Mass. App. Ct. 742, 746, 594 N.E.2d 887 (1992). After the twenty-day period to appeal the constructive approval passes without notice of appeal, "the city or town clerk shall issue a certificate stating the date of approval, the fact that the board failed to take final action and that the approval resulting from such failure has become final, and such certificate shall be forwarded to the petitioner." G. L. c. 40A, § 15, fifth par.

Discussion. There is now no dispute that the plaintiffs did not appeal from the building inspector's decision to issue the building permit at issue within thirty days. It is also without dispute that the board did not make a decision within one hundred days of when the plaintiffs did file their appeal. The question, then, is how these lapses bear on the plaintiffs' claim to constructive approval of their appeal to the board. It is well settled that the thirty-day deadline to appeal from a zoning officer's issuance of a building permit is both strictly enforced and is a jurisdictional prerequisite to the board's jurisdiction to hear an appeal. See Connors v. Annino, 460 Mass. 790, 797, 955 N.E.2d 905 (2011) ("We interpret [G. L. c. 40A,] §§ 7, 8, and 15 to mean that when a party with adequate notice of the issuance of a building permit claims to be aggrieved by the permit on the ground that it violates the zoning code, the party must file an administrative appeal within thirty days of the permit's issuance; a failure to do so deprives the board or other permit granting authority, and later the courts, of jurisdiction to consider the appeal"). See also Costello v. Board of Appeals of Lexington, 3 Mass. App. Ct. 441, 445, 333 N.E.2d 210 (1975) (discussing notice provisions in precursor to G. L. c. 40A, § 17 ). "The filing and constructive grant provisions of § 15 are explicit" and "[n]either the city nor the petitioner may vary the statutory filing requirement." Racette v. Zoning Bd. of Appeals of Gardner, 27 Mass. App. Ct. 617, 619, 541 N.E.2d 369 (1989). See DeLucia v. Kfoury, 93 Mass. App. Ct. 166, 169-170, 100 N.E.3d 748 (2018) (appeal period set by statute cannot be enlarged and any order purporting to do so is a nullity).

It follows that filing a timely notice of appeal by a petitioner is a statutory prerequisite to a board's duty -- or even authority -- to comply with the various hearing and decisional deadlines imposed on it by § 15. See Pasqualino v. Board of Appeals of Wareham, 14 Mass. App. Ct. 989, 990, 440 N.E.2d 523 (1982) (no constructive grant of variance where "there is nothing in the record that would permit the judge to conclude that the plaintiffs' application had been filed with the town clerk in accordance with the [time] requirements of G. L. c. 40A, § 15"). Otherwise, a board without any authority to grant an appeal would be able to effect a constructive approval merely by refusing to act. It would make little sense for the statutory scheme to permit a board, by inaction, to accomplish what it cannot do through purposeful action.

Although the plaintiffs' notice of constructive approval was filed within 114 days of their appeal to the board, they could not obtain such an approval because they did not satisfy the initial statutory requirement of filing a notice of appeal from the issuance of the building permit within thirty days. The plaintiffs were never entitled to a hearing before the board or to a decision on the merits. The plaintiffs cite no authority for the proposition that, by holding a hearing in error, a board of appeals can somehow grant itself jurisdiction to hear an untimely appeal. Due to the plaintiffs' untimely appeal, the board lacked jurisdiction to issue a decision on the merits, whether that decision was by written decision or by constructive approval.

The plaintiffs cite Elder Care Servs., Inc. v. Zoning Bd. of Appeals of Hingham, 17 Mass. App. Ct. 480, 459 N.E.2d 832 (1984), for the proposition that because the plaintiffs complied with all of the § 15 requirements for a constructive approval, the town's only mechanism for relief was through a timely § 17 appeal from the constructive approval. They contend that the town's failure to bring such an appeal means the plaintiffs are entitled to enforce their notice. However, they ignore the fact that, unlike the plaintiff in Elder Care Servs., Inc., they did not satisfy the requirements for constructive approval in the first instance, because they filed their appeal from the issuance of the building permit after the thirty-day deadline.

It is true that in Elder Care Servs., Inc., we held that, absent a timely appeal pursuant to G. L. c. 40A, § 17, the town could not raise its arguments that the constructively granted permit was for a use prohibited by the zoning by-law, or, alternatively, that the petitioner had waived its right to a constructive grant. Id. at 481, 483, 459 N.E.2d 832. In other words, the town's substantive defenses to a constructive approval that (so far as town records revealed) complied with all of the statutory time limits had to be challenged in a G. L. c. 40A, § 17, appeal. Here, in contrast to the defendant board of appeals in Elder Care Servs., Inc., the town is not offering a substantive legal defense for its inaction. Rather, it is simply arguing that the plaintiffs failed to meet all of the requirements to be eligible for constructive approval. See Uglietta, 32 Mass. App. Ct. at 747, 594 N.E.2d 887 (request for declaratory judgment that special permit had been constructively granted under G. L. c. 40A, § 9, denied where plaintiff's failure to file required notice of constructive approval with city clerk within fourteen days as required by statute "in effect nullifies any grant"). In Uglietta, the procedural posture was analogous to this case. There, the petitioner filed an action seeking both a declaration that a special permit had been constructively granted and an order requiring the city clerk to issue a certificate so stating. However, because the petitioner had failed to timely notify the city clerk of the board of appeals's failure to act and the resultant constructive approval, we held that any constructive grant that could have been the result of the board's failure to file a timely decision was effectively nullified. Id. Having concluded that any constructive grant was a nullity, we declined to reach the plaintiff's argument that the board had waived its right to challenge the claim of constructive approval by not filing an appeal after the plaintiff belatedly filed a notice of constructive approval. Id. at 747, 594 N.E.2d 887.

Here, the plaintiffs' claimed constructive approval of their appeal to the board is a nullity. Their late filing rendered them ineligible for any approval, constructive or otherwise. The town is not obligated to bring a § 17 appeal to challenge a purported constructive approval of an untimely appeal. The judge properly declined to provide the requested relief.

Conclusion. For all of the foregoing reasons, we affirm the judgment for the defendants.

So ordered.

      This is the second time this matter has come before us. The first time, we remanded for further consideration of whether statements by the town solicitor and mayor indicating the plaintiffs had a longer time to appeal the building permit estopped the town from claiming the plaintiffs had filed a late appeal. McIntyre v. Zoning Bd. of Appeals of Braintree, 89 Mass. App. Ct. 1119, 2016 WL 1621937 (2016) (decision pursuant to our rule 1:28). On remand, the Land Court judge rejected the estoppel claim. See O'Blenes v. Zoning Bd. of Appeals of Lynn, 397 Mass. 555, 558-559, 492 N.E.2d 354 (1986). The plaintiffs do not challenge the judge's decision on the estoppel issue in this appeal and we do not address it.

      We recite the undisputed facts taken from the record relevant only to the narrow jurisdictional issue on appeal. For a more detailed summary of the factual and procedural background see McIntyre v. Zoning Bd. of Appeals of Braintree, 89 Mass. App. Ct. 1119, 2016 WL 1621937 (2016).

      Defendant JJM Myrtle Street Corporation subsequently purchased the lot from Mento in November, 2013.

      The plaintiffs' action sought to annul the decision of the board pursuant to G. L. c. 40A, § 17 ; requested relief in the nature of mandamus pursuant to G. L. c. 249, § 5 ; and also sought additional declaratory relief.

      Because there is no requirement that notice to abutters or even public notice be given of a building permit application or issuance, "difficult questions concerning adequacy of notice may arise at the margins" when parties in interest do not receive notice until after a period of time in the thirty-day appeal period has already elapsed. Connors, 460 Mass. at 798 n.10, 955 N.E.2d 905. Here, the plaintiffs admittedly learned of the building permit the day after it was issued. As a result, there is no issue with regard to adequacy of notice.

      The plaintiffs cite no authority for their assertion that the board may waive the time limit to file an appeal.


source: Caselaw Access Project

author: McDONOUGH, J.

license: Public Domain

text:
    Lisa BOBBLIS v. Andrew J. COSTA.
    No. 17-P-557.
    Appeals Court of Massachusetts, Plymouth..
    Argued January 12, 2018 Decided October 18, 2018
    Patricia Michaels-Hamilton, Boston, for the husband.
    John Foskett, Boston, for the wife.
    Present: Vuono, Agnes, & McDonough, JJ.
   McDONOUGH, J.

This is an appeal from a judgment dismissing a complaint for retroactive modification of a child support order. The complaint was filed by Andrew J. Costa (father) to terminate his child support obligation to his former wife, Lisa Bobblis (mother), for one of their two children. As we discuss in more detail below, pursuant to a separation agreement that was incorporated into the judgment of divorce, the father was required to pay child support until the child became emancipated. The agreement provided that emancipation would occur at the age of twenty-three if the child attended college or other accredited post high school training or education. The agreement further stated that emancipation would occur if the child entered the military. The child in question attended college as a full-time student and joined the United States Army Reserve Officer Training Corps (ROTC) at the beginning of his junior year. The father claims that joining the ROTC is the equivalent of entering the military and, as a result, the child was emancipated at the time his participation in the ROTC program began. Consequently, the father argues, his child support obligation terminated at the beginning of the child's junior year of college. Following a trial at which both parties appeared pro se, a judge of the Probate and Family Court rejected the father's argument. In a well-reasoned memorandum of decision, the judge ruled that the child was not emancipated by virtue of his enrollment in the ROTC and dismissed the father's complaint. We affirm.

Background. We summarize the undisputed material facts as follows. After eleven years of marriage, the parties divorced in 2000 pursuant to a divorce judgment that incorporated the parties' separation agreement. The mother had physical custody of both children. The parties agreed that the father would pay weekly child support "until the emancipation of all the children." They further agreed that a child's emancipation would occur upon the earliest of certain future events, of which only two are relevant here: first, "if the child attends college or other accredited post-high school training or education, emancipation shall be at age 23 or such time as the child completes such training or education"; or second, upon "[e]ntry by the child into the military."

In August of 2012, the child enrolled at Springfield College. He received a scholarship award from the college and also obtained a number of educational loans. In addition, through its long-standing ROTC program, the Army awarded him a scholarship beginning in his junior year of college. Following his graduation in May of 2016, the Army commissioned him as an officer, assigned him to its field artillery branch, and ordered him to report for duty at Fort Sill in Oklahoma.

A trial was held on September 23, 2016. Both parties presented their respective cases and offered uncontested documentary evidence. Those documents included an ROTC enlistment document and an ROTC scholarship cadet contract (cadet contract), both signed by the child and an Army official. The documents were interlinked: both made reference to the other, for purposes of supplying details of his participation in the ROTC college program as well as his later military service (if any) in the Army.

In her memorandum of decision, the judge referred to the ROTC documents, indicating how each confirmed the distinction between the ROTC program, which provided some specialized training to a student cadet, and the military service that an ROTC cadet formally commits to undertake upon graduation. Based on the ROTC documents, Federal statutory law, and relevant case law (including reported decisions of other State courts), the judge concluded that the child did not become emancipated by virtue of his participation in the ROTC.

Discussion. We review a judge's decision denying or allowing modification of a child support order for abuse of discretion. See Lizardo v. Ortega, 91 Mass. App. Ct. 687, 691-692, 78 N.E.3d 89 (2017) ; Wasson v. Wasson, 81 Mass. App. Ct. 574, 576, 965 N.E.2d 882 (2012). An abuse of discretion may be found where a trial judge has made a clear error in weighing the relevant factors for a modification, so that the "decision falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27, 20 N.E.3d 930 (2014). A judge's interpretation of the meaning of a term or clause in a contract, which is a question of law, is reviewed de novo. Balles v. Babcock Power, Inc., 476 Mass. 565, 571, 70 N.E.3d 905 (2017).

1. ROTC program structure. Upon enrolling in the ROTC program, the child executed two documents, which were produced as evidence during the trial: the cadet contract and the enlistment document. The cadet contract established the terms and conditions of the child's participation in the ROTC program "and later service in the United States Army." The enlistment document, which incorporates the cadet contract by reference, established the child's rank as an ROTC cadet, and states that the cadet contract includes "additional details of [his] enlistment."

In exchange for a scholarship covering his tuition and educational expenses, as well as a monthly subsistence allowance, the child assumed an active duty obligation to be met after he completed the ROTC program and graduated from college. He also agreed to accept an appointment, if offered, as a commissioned officer in the Army, upon graduation and completion of all ROTC requirements. However, if he violated the terms of the cadet contract or the ROTC program, he could have been ordered to active duty as an enlisted soldier or required to reimburse the United States government for the scholarship funds he had received.

The cadet contract closely tracks chapter 103 of title 10 of the United States Code, which establishes and governs ROTC programs. See 10 U.S.C. §§ 2101 - 2111b (2012). That chapter lists the requirements for a person's initial enrollment in the two-year ROTC "advanced training" program, including enlistment as an ROTC cadet. See 10 U.S.C. §§ 2101, 2104(b). As with the cadet contract, the chapter states that an "ROTC cadet may be ordered to active duty as an enlisted reservist only if he does not complete his course of instruction or declines to accept a commission when offered." Allison v. United States, 426 F.2d 1324, 1326 (6th Cir. 1970). In addition, one who fails to complete the required active duty period "shall be subject to ... repayment provisions." 10 U.S.C. § 2105. Notably, an officer appointed following completion of an ROTC program "may not be credited with enlisted service for the period covered by his advanced training." 10 U.S.C. § 2106(c).

The contractual provisions of the enlistment document and cadet contract, as well as the statutory authority governing the ROTC program, demonstrate a clear distinction between participation in an ROTC program and military service under the ROTC program's terms. As the trial judge noted, "[an] ROTC cadet is simply a scholarship student who receives some special training and has an obligation to perform military service or repay the funds received after participation in the program." Importantly, the cadet contract and 10 U.S.C. §§ 2101 et seq. contemplate the possibility that a cadet may never enter active duty, for a number of reasons, and in such circumstances require the cadet to repay the Army for the scholarship. And, as noted supra, participation in the ROTC program is specifically not credited as military service as it pertains to the service obligations of appointed officers.

2. Statutory and decisional law. Statutory and decisional authority further highlight the difference between participation in the ROTC program and service in the military. For example, the United States Code specifically distinguishes between members of the armed forces on one hand, and ROTC cadets on the other, in providing death benefits to members of the military. See 10 U.S.C. § 1475(a)(1)-(4) (2012) ; Allison, 426 F.2d at 1326-1327. In addition, when considering whether a statutorily established life insurance policy for members of the military covers ROTC cadets, the United States Court of Appeals for the Sixth Circuit stated that "Congress has not considered ROTC training or training in the military academies as regular military service" (footnote omitted). Allison, supra at 1326. Similarly, the legislative history behind the Federal Employees Compensation Act (FECA) "indicates a belief on the part of members of Congress that ROTC students are not members of the armed forces." Id. at 1327. According to the Senate committee on armed services's report on FECA, "ROTC members are civilians and have no military status." Id., quoting 1956 U.S. Code Cong. & Admin. News 3870. Finally, the Uniform Code of Military Justice does not apply to ROTC candidates, while it does apply to cadets of the United States Military Academy, the United States Air Force Academy, and the United States Coast Guard Academy. See 10 U.S.C. §§ 801, 802 (2012) ; Allison, supra at 1326.

While no other Massachusetts court has directly ruled on the issue before us (whether enrolling in an ROTC program is considered entry into the military for purposes of emancipation), courts in other jurisdictions have considered the related question of whether enrolling in a military academy is an emancipating event. Military service is often considered an emancipating event because it subjects an individual to "extensive government control, which is inconsistent with a parent's control and support of a child." Zuckerman v. Zuckerman, 154 A.D.2d 666, 668, 546 N.Y.S.2d 666 (N.Y.A.D. 1989). For example, in Howard v. Howard, 80 Ohio App. 3d 832, 835, 610 N.E.2d 1152 (1992), the court concluded that enrolling as a cadet in the United States Coast Guard Academy was not equivalent to entering the military and did not emancipate the parties' child. The court stated that "in essence, [the child's] status at the Academy is no different from any other college student on a full scholarship," and reasoned that, "[u]like a fact pattern where an individual enters the armed services and thus removes himself from parental control and care, [the child] is merely a college student in a military academy." Id. Of particular relevance to the court in Howard was the apparent intent of the parties, as is the case here, that child support continue while the child pursued a four-year college degree. Id.

Conclusion. We agree with the trial judge's thoughtful analysis respecting the distinction between a student cadet participating in a college ROTC program, and a cadet's later full-time military service. Like the trial judge, we believe that "[e]ntry ... into the military" as set forth in the parties' separation agreement, when used in the emancipation context, does not apply to participation in a ROTC program that does not include full-time service in an active or reserve component of the armed forces. See, e.g., Allison, 426 F.2d at 1326-1327 ; Bishop v. Bishop, 287 N.J. Super. 593, 599-603, 671 A.2d 644 (1995). We therefore affirm the judgment dated November 3, 2016, dismissing the complaint for modification.

So ordered.

      On appeal, the father erroneously argues that the judge "did not issue" factual findings. The judge's findings, although not expressly labeled as such, are set forth in her written decision, are firmly rooted in the evidence, and more than adequately support the judgment of dismissal. See generally Mass. R. Dom. Rel. P. 52(a).

      The child and the mother remain co-obligors on college loans.

      The father relied on a "United States Government Common Access Card," which allegedly referenced the child's rank and pay grade. The mother countered with a sworn statement of an Army ROTC officer, who indicated that this card was inaccurate, that it had been issued by mistake, and that the child was in the process of obtaining a corrected card. Other than the father and the mother, no witnesses were called to testify.

      The father argues, in passing, that the judge erred by denying him an opportunity to prove that the child no longer resided with the mother. Putting aside whether the father preserved this claim of error, it is enough to say that the father did not, at any stage of the case, offer any competent evidence to show that the child in fact ever maintained a domicile apart from the mother during the relevant time frame.

      We consider "(1) whether the factual findings are 'clearly erroneous,' giving 'due regard ... to the opportunity of the trial court to judge the credibility of the witnesses,' Mass. R. Dom. Rel. P. 52(a) (2008); (2) whether there were errors of law; and (3) whether the judge appears to have based her decision not on sound discretion, but 'on whimsy, caprice, or arbitrary or idiosyncratic notions' " (citation omitted). Pierce v. Pierce, 455 Mass. 286, 293, 916 N.E.2d 330 (2009).

      Conversely, courts in New York and Missouri have held that, when considering emancipation, entering the United States Military Academy at West Point or the United States Air Force Academy is equivalent to entering the military. See Porath v. McVey, 884 S.W.2d 692, 696 (Mo. Ct. App. 1994) ; Dingley v. Dingley, 121 N.H. 670, 673, 433 A.2d 1281 (1981) ; Zuckerman, 154 A.D.2d at 668, 546 N.Y.S.2d 666. Those courts considered the day-to-day lifestyle of a West Point or Air Force cadet, which is highly structured and leaves cadets little free time of their own. See Porath, supra at 695. They also noted that cadets are provided with free tuition, room, board, health care, monthly pay, and other allowances, thus rendering cadets self-supporting. See Zuckerman, supra. These cases are readily distinguishable from the case before us, as the hallmarks of military service present at those military academies were not part of the child's ROTC experience at Springfield College.

      Claiming the father's appeal is frivolous, the mother also maintains she is entitled to attorney's fees and double costs pursuant to Mass. R. A. P. 25, as appearing in 376 Mass. 949 (1979). We disagree. Although we affirm the judgment, "[u]npersuasive arguments do not necessarily render an appeal frivolous." Avery v. Steele, 414 Mass. 450, 455, 608 N.E.2d 1014 (1993). Because the father presented a question we deemed "worthy of appellate consideration," his appeal does not justify awarding attorney's fees and double costs. Hodge v. Klug, 33 Mass. App. Ct. 746, 758, 604 N.E.2d 1329 (1992).


author: AGNES, J.

text:
    Jessica DIGIULIO v. DIRECTOR OF THE DEPARTMENT OF UNEMPLOYMENT ASSISTANCE.
    No. 17-P-330
    Appeals Court of Massachusetts, Suffolk..
    Argued December 7, 2017. Decided October 24, 2018.
    David A. Guberman, Special Assistant Attorney General (Carolyn E. Hunt also present) for the defendant.
    Doreen M. Zankowski, Boston, for the plaintiff.
    Present: Agnes, Blake, & McDonough, JJ.
   AGNES, J.

The sole question before us is whether the plaintiff, Jessica DiGiulio, is entitled to unemployment benefits after leaving her employment in Massachusetts to relocate to Puerto Rico with her husband, a special agent with the Drug Enforcement Administration (DEA), who was transferred to work on the island. We conclude that the twelfth paragraph of G. L. c. 151A, § 25 (e ), controls the outcome of this case and precludes DiGiulio from receiving unemployment benefits. We therefore reverse the judgment issued by the District Court judge.

Background. The essential facts are not in dispute. DiGiulio worked full time as a registered nurse for Ideal Image of Massachusetts beginning in May, 2014. Her husband works as a special agent for the DEA. In April, 2015, DiGiulio's husband was notified by the DEA that he would be transferred to Puerto Rico in July, 2015, for a period of at least three years. DiGiulio subsequently informed her manager that she intended to resign from her position in August, 2015, due to her husband's relocation. Her husband moved to Puerto Rico and began his assignment on July 27, 2015. DiGiulio's last day of work was on August 26, 2015. She remained in Massachusetts for approximately one month before joining her husband in Puerto Rico.

DiGiulio filed a claim for unemployment compensation with the Department of Unemployment Assistance (department) in September, 2015. In paperwork DiGiulio submitted to the department, she explained that she could no longer continue working at her job due to her "[h]usband's job relocating us to [P]uerto [R]ico." The department issued a notice of disqualification on September 25, 2015. On September 30, 2015, DiGiulio requested a hearing on the matter, and a telephonic hearing was conducted before a department review examiner on October 20, 2015. The review examiner concluded that DiGiulio was disqualified from receiving unemployment compensation on the basis that she left her employment to relocate with her husband to Puerto Rico. DiGiulio appealed the decision of the review examiner to the department's board of review (board), which denied review and thereby adopted the review examiner's decision. See G. L. c. 151A, § 41 (c ). Thereafter, DiGiulio filed a complaint for review in the District Court. The judge ultimately vacated the decision of the board and ordered the department "to pay [DiGiulio] her unemployment compensation, if she is otherwise eligible." The judgment was stayed pending final disposition of the department's appeal, which is now before us.

Discussion. We review the board's decision based on the standards set forth in G. L. c. 30A, § 14 (7). See G. L. c. 151A, § 42. "The agency's decision may only be set aside if the court determines that the decision is unsupported by substantial evidence or is arbitrary or capricious, an abuse of discretion, or not in accordance with law."

Coverall N. Am., Inc. v. Commissioner of the Div. of Unemployment Assistance, 447 Mass. 852, 857, 857 N.E.2d 1083 (2006). "[W]here an agency determination is based on a question of law, we review the matter de novo." Cape Cod Collaborative v. Director of the Dep't of Unemployment Assistance, 91 Mass. App. Ct. 436, 440, 76 N.E.3d 265 (2017).

General Laws c. 151A, § 25, sets forth a number of circumstances under which a claimant may be disqualified from receiving unemployment benefits. Subsection (e ) of G. L. c. 151A, § 25, has been amended numerous times since it was first enacted in 1941. The first paragraph of G. L. c. 151A, § 25 (e ), provides that a claimant may be barred from receiving unemployment benefits where she leaves her employment "voluntarily unless the employee establishes by substantial and credible evidence that [s]he had good cause for leaving attributable to the employing unit or its agent." The third paragraph of § 25 (e ) (paragraph three), however, goes on to provide that "[a]n individual shall not be disqualified from receiving benefits under the provisions of this subsection, if such individual establishes to the satisfaction of the commissioner that his reasons for leaving were for such an urgent, compelling and necessitous nature as to make his separation involuntary." G. L. c. 151A, § 25 (e ). There are decisions of both this court and the Supreme Judicial Court recognizing that a claimant's personal circumstances, including relocating with one's spouse or partner to another locality, may constitute such "urgent, compelling and necessitous" reasons for leaving gainful employment so as to render the claimant's "separation involuntary." Id. See Norfolk County Retirement Sys. v. Director of the Dep't of Labor & Workforce Dev., 66 Mass. App. Ct. 759, 765, 850 N.E.2d 1079 (2006), and cases cited. Indeed, in Director of the Div. of Employment Sec. v. Fingerman, 378 Mass. 461, 462, 464, 392 N.E.2d 846 (1979), the Supreme Judicial Court held that the board properly awarded unemployment benefits to a claimant who left her job to move with her husband after he secured employment in California. Similarly, in Reep v. Commissioner of the Dep't of Employment & Training, 412 Mass. 845, 852, 593 N.E.2d 1297 (1992), the court concluded that a claimant who left her job in order to relocate with her partner to another part of the State was entitled to receive unemployment benefits.

However, the same year that Reep was decided, the Legislature again amended G. L. c. 151A, § 25 (e ), see St. 1992, c. 26, § 20, by adding the following final paragraph (paragraph twelve) to subsection (e):

"Notwithstanding the provisions of this subsection, no waiting period shall be allowed and no benefits shall be paid to an individual under this chapter for the period of unemployment next ensuing and until the individual has had at least eight weeks of work and in each of said weeks has earned an amount equivalent to or in excess of the individual's weekly benefit amount after having left work to accompany or join one's spouse or another person at a new locality." ,

The department argues that the enactment of paragraph twelve renders paragraph three inoperative if the sole basis of a claimant's request for unemployment benefits stems from his or her leaving a job to relocate with a spouse or partner. We agree.

We review questions of statutory interpretation de novo, giving substantial deference to an agency's reasonable interpretation of legislative edicts existing within a complex statutory scheme that it is tasked with enforcing. See Attorney Gen. v. Commissioner of Ins., 450 Mass. 311, 319, 878 N.E.2d 554 (2008). "It is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain, ... the sole function of the courts is to enforce it according to its terms." James J. Welch & Co. v. Deputy Comm'r of Capital Planning & Operations, 387 Mass. 662, 666, 443 N.E.2d 382 (1982), quoting Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 61 L.Ed. 442 (1917). The Legislature's use of the words "[n]otwithstanding the provisions of this subsection" in paragraph twelve "clearly signals the drafter's intention that the provisions of the 'notwithstanding' section override conflicting provisions of any other section." Attorney Gen., supra, quoting Cisneros v. Alpine Ridge Group, 508 U.S. 10, 18, 113 S.Ct. 1898, 123 L.Ed.2d 572 (1993).

Prior to the Legislature's enactment of paragraph twelve in 1992, a claimant was entitled to obtain unemployment benefits after leaving a job to follow a spouse to another locality. See, e.g., Fingerman, 378 Mass. at 464, 392 N.E.2d 846. However, by adding paragraph twelve to § 25 (e ) in 1992, including the language "[n]otwithstanding the provisions of this subsection," the Legislature made a clear statement that the limiting language in paragraph twelve prevailed over any other conflicting language within § 25 (e ), including the language contained in paragraph three. To conclude otherwise would require that we "ascrib[e] no meaning to the 'notwithstanding' language" set forth in paragraph twelve.

Attorney Gen., supra at 320, 878 N.E.2d 554. See G. L. c. 4, § 6, Third. This result would contravene the most fundamental tenet of statutory interpretation: a "statute is to be construed as written, in keeping with its plain meaning." Stop & Shop Supermkt. Co. v. Urstadt Biddle Props., Inc., 433 Mass. 285, 289, 740 N.E.2d 1286 (2001). Thus, regardless of whether leaving a job to follow a spouse or partner to another locality was at one time considered an "urgent, compelling and necessitous" reason for leaving gainful employment under paragraph three, since the 1992 amendment inserting paragraph twelve the statute has explicitly prohibited a claimant from receiving unemployment benefits "after having left work to accompany or join one's spouse or another person at a new locality."

While we recognize that G. L. c. 151A is to "be construed liberally in aid of its purpose, which purpose is to lighten the burden which now falls on the unemployed worker and his family," G. L. c. 151A, § 74, we cannot ignore a clear legislative mandate. Moreover, it is not for us to "comment on the wisdom of legislative enactments." Administrative Justice of the Hous. Court Dep't v. Commissioner of Admin., 391 Mass. 198, 205, 461 N.E.2d 243 (1984). Because DiGiulio's only articulated basis for leaving work was to accompany her husband to Puerto Rico, she is not entitled to unemployment benefits, based on the statutory language set forth in paragraph twelve of G. L. c. 151A, § 25 (e).

The judgment is reversed, and a new judgment shall enter affirming the decision of the board.

So ordered.

      Section 20 of St. 1992, c. 26, was enacted on April 27, 1992, and took effect that same day. The court's decision in Reep issued on June 11, 1992, and involved events that occurred prior to the amendment of the statute.

      The above quoted statutory provisions requiring a claimant to earn a wage equal to or greater than his or her weekly unemployment benefit amount for a period of at least eight weeks as a precondition to receiving unemployment benefits is not at issue in the present appeal.

      "Words and phrases shall be construed according to the common and approved usage of the language; but technical words and phrases and such others as may have acquired a peculiar and appropriate meaning in law shall be construed and understood according to such meaning." G. L. c. 4, § 6, Third.

      DiGiulio further argues that she is entitled to benefits based on § 1212(F) of the department's "Service Representatives Handbook," which was in effect at the time she applied for unemployment benefits. This provision has since been rescinded by the department. We need not decide whether the department had the authority to issue such subregulatory guidance because DiGiulio would not be eligible for unemployment benefits even if § 1212(F) were applicable. Section 1212(F) provided that the spouse of a serving member in the armed forces was entitled to obtain unemployment benefits after resigning his or her employment in the event the claimant's spouse was involuntarily transferred to a new duty station. Here, DiGiulio's husband is an agent of the DEA and thus does not qualify as a serving member in the armed forces. See G. L. c. 4, § 7 (" 'Armed forces' shall include army, navy, marine corps, air force and coast guard"). See also 10 U.S.C. § 101(a)(4) (2012) ("The term 'armed forces' means the Army, Navy, Air Force, Marine Corps, and Coast Guard").


author: RUBIN, J.

text:
    Ronald F. NARDONE v. LVI SERVICES, INC.
    No. 17-P-845
    Appeals Court of Massachusetts, Middlesex..
    Argued April 12, 2018 Decided October 29, 2018
    William J. Royal, Jr., Wellesley, for the plaintiff.
    Matthew A. Porter, Boston, for the defendant.
    Present: Rubin, Sacks, & Singh, JJ.
   RUBIN, J.

Plaintiff Ronald Nardone brought suit against his former employer, LVI Services, Inc. (LVI), for breach of contract, promissory estoppel, and quantum meruit. A jury found LVI not liable for breach of contract, but liable for $800,000 on the promissory estoppel claim and $200,000 on the quantum meruit claim. Following trial, a judge of the Superior Court granted LVI's motion for judgment notwithstanding the verdict on the promissory estoppel and quantum meruit claims. Nardone appeals from this decision, and we reverse.

Facts. "In reviewing [a] judgment [notwithstanding the verdict], we consider the facts and inferences therefrom in the light most favorable to the plaintiff to determine 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.' " Phelan v. May Dep't Stores Co., 60 Mass. App. Ct. 843, 844, 806 N.E.2d 939 (2004), quoting Stapleton v. Macchi, 401 Mass. 725, 728, 519 N.E.2d 273 (1988). Viewed in that light, the jury could have found the following.

Nardone began working for LVI, an environmental remediation company, in 1988, as the director of sales and marketing for its Boston branch. He was promoted to president of the branch in 1989 and then to corporate vice-president of business development in 1990, a position he held until his departure from LVI in 2011. In his position as corporate vice-president of business development, Nardone was responsible for developing and maintaining relationships with clients, which included Fortune-100 companies. He also hired individuals, trained and managed salespeople, engaged in business development strategy, and regularly presented at senior management meetings.

In 1997, 2002, and 2005, LVI searched for investors to recapitalize the company in order to provide cash to fund its rapid growth. Nardone participated in each search by making "roadshow presentations," at which he, along with president and chief executive officer Burton Fried and chief financial officer Paul Cutrone, pitched the recapitalization to potential investors. It was disputed at trial whether making these presentations was part of Nardone's job, but, viewed in the light most favorable to Nardone, a reasonable juror could have concluded that it was not a required part: Nardone "wouldn't say [the roadshow presentations] were part of [his] job," he "would not classify [doing the roadshow presentations] as part of [his] job," he did not "believe it was part of [his] job description," and, in response to a question on cross-examination whether it was "part of the ordinary course of [his] duties and responsibilities to make these presentations; wasn't it?" Nardone responded, "I don't agree." And Fried testified that, "I asked [Nardone] if he wanted to appear and give the presentation on behalf of the business development aspect of the business and he said yes. He thanked me for inviting him. I thought important to invite him.... Although I didn't require him, he just accepted the invitation." Nardone did not receive any compensation for his work on the roadshow presentations apart from his salary. LVI obtained recapitalizations of approximately $24 million in 1997, $70 million in 2002, and $300 million in 2005.

As compensation for the 1997 recapitalization, members of senior management, including Nardone, received a combination of shares and stock options. These stock options "expired worthless" because the company did not meet certain earning criteria that were necessary conditions for the options to vest. Fried told Nardone that members of senior management would receive similar compensation --shares and stock options -- for the 2002 recapitalization.

In August of 2005, after one of the roadshow presentations relating to the 2005 recapitalization, Nardone learned from Fried that a potential investor had offered to purchase stock options from option-holders at a rate of $1,400 per option. Fried told Nardone that, once he went home and saw his stock option agreement, he would realize that he was "going to be a millionaire." But, when Nardone got home, he discovered that he had no stock options. He relayed this information to Fried, who said, "That's impossible." Nardone, Fried, and Cutrone then examined a list, maintained by Cutrone, of all the option-holders together with the number of options they held. The list contained approximately thirty people, but not Nardone: about twenty employees who did not own equity in the company, and all the management stockholders except Nardone. Based on the number of stock options held by each management stockholder and the offer price, Nardone estimated that the average management stockholder would have received approximately one million dollars for his or her options.

After seeing the list, Nardone said to Fried, "[W]hat are we going to do about this, because if this isn't made right, I'm not going to continue with the roadshow; you can get someone else to do it; I'm finished; get Bob Katz (phonetic), Brian Messico, Dave Pearson; I don't care who, but I'm done." Fried responded that this must have been a mistake, that he needed Nardone to "finish this process," and that, if Nardone continued with the roadshows, he would "make it right."

The next week, Fried contacted Nardone and told him that he had "found a way to make up for the oversight." According to Fried, the offer to purchase the company included a cash bonus at closing, and Fried would be able to "make up for [his] oversight through that cash pool." Although it was impossible for Nardone to receive any new options, according to Fried, the cash bonus was a "perfect mechanism" to rectify the situation. Fried also told Nardone that the likelihood was "extremely high" that the company would receive the cash bonus, and that it would be in the millions. Nardone told Fried that, if Fried agreed to compensate Nardone through this mechanism, then he would continue to do roadshow presentations. Fried agreed, and Nardone made five or six more presentations.

After the recapitalization deal closed on November 15, 2005, Fried told Nardone that LVI did not receive a closing bonus, but that he had managed to get $50,000 for Nardone. Nardone grudgingly accepted the money and continued to work for LVI.

In February of 2008, though, Nardone came across a summary of the 2005 recapitalization deal that stated that LVI had, in fact, received a closing bonus of $7.95 million. Approximately $2 million had gone to Fried, $750,000 had gone to each of the chief operating officers, and $4 million had been distributed among other managers. Nardone brought this situation to the attention of Robert McNamara, who had succeeded Fried as president of the company. McNamara told Nardone, "You got screwed," and said he would try to make Nardone whole by giving him stock options that Nardone would be able to sell when the company went public. However, this did not transpire because the 2008 financial crisis, which began shortly after Nardone's conversation with McNamara, foreclosed any possibility of an initial public offering. Apart from the $50,000, Nardone never received what Fried had promised.

Discussion. The jury found for the plaintiff Nardone on his promissory estoppel claim and on his claim in quantum meruit.

The trial court, however, allowed LVI's motion for judgment notwithstanding the verdict on both claims.

In order to succeed on such a motion, the defendant must show that, taking all the evidence and the reasonable inferences drawn therefrom in the light most favorable to the plaintiff, no reasonable juror could return a verdict for the plaintiff. See Phelan, 60 Mass. App. Ct. at 844, 806 N.E.2d 939. Our review of the allowance of such a motion is de novo, id. at 845, 806 N.E.2d 939, and consequently we, too, employ this high bar.

1. Promissory estoppel. In the judge's order allowing the motion for judgment notwithstanding the verdict on the promissory estoppel claim, the judge concluded that the proof before the jury was inadequate to establish either that the plaintiff was induced to act in reliance on a promise of the defendant or that he suffered a detriment as a result of relying on the promise of the defendant. The judge first concluded that "participation in the investor presentations was part of the plaintiff's job." And that meant, the judge held, that he was "not induced to participate in those presentations by the defendant's promises."

In assessing a motion for judgment notwithstanding the verdict the judge is required to view the evidence in the light most favorable to the plaintiff. See Phelan, 60 Mass. App. Ct. at 844, 806 N.E.2d 939. After all, the jury is the finder of fact and unless the evidence was insufficient to support a finding necessary for the judgment it is not the role of the trial judge to second guess the jury's factual findings.

In this case, the evidence was sufficient to allow the jury to find that although the defendant was not compensated for his "roadshow" presentations on top of his usual salary, neither were they required as part of this job. Although the trial judge asserted that the plaintiff testified that the road shows were part of his job responsibilities, fairly read his testimony was far more nuanced than that. The jury may view the evidence as a whole, and the plaintiff testified that he "wouldn't say [the roadshow presentations] were part of [his] job," he "would not classify [doing the roadshow presentations] as part of [his] job," and he did not "believe it was part of [his] job description." In light of all this, the jury could have concluded that his statement that all of his work in connection with the roadshows "was done while [he was] a salaried employee of LVI," on which the defendant before us relies, was merely a statement that he received no further compensation for doing the roadshows although they were not a required part of his job. Nor is a statement that Nardone made in his affidavit on which the defendant also relies inconsistent with this. He said: "In the ordinary course of my duties and responsibilities as an executive, as [s]enior [v]ice [p]resident of [b]usiness [d]evelopment at [d]efendant, LVI, I was well aware of the corporate actions of LVI and the status of LVI's efforts to market to potential investors and LVI in connection with the 1997, 2002, and 2005 [r]ecapitalizations of LVI, and was very involved in the marketing, presentations, due diligence, and related in the recapitalizations, including the 2005 [r]ecapitalization with Code Hennessy." Even if this is read to mean that he did the presentations as part of his job, and it is ambiguous on the point, the jury were still free to find that he was not required to do so. Indeed, Burton Fried testified that "I didn't not require him, he just accepted the invitation."

In light of all the evidence, the jury were entitled to conclude that the roadshows were not a required part of the plaintiff's job responsibilities, that he could have declined to continue doing them, and that he threatened to do so.

If doing these presentations were not a required part of Nardone's job responsibilities such that he could decline to continue doing them -- even if, when he did them, he did them as part of his job -- the jury were also free to find that LVI's unkept promise nonetheless induced him to make the subsequent roadshow presentations once he concluded that he had been treated unfairly and that, if his concerns were not addressed, he would stop making the presentations. Indeed, it is obvious on the face of it that the promises made here and found by the jury were precisely intended to induce the plaintiff to make the subsequent roadshow presentations. And neither is the fact that Nardone did the presentations in the past dispositive of whether Fried's promise constituted an inducement. It would be inconsistent with the equitable nature of the doctrine of promissory estoppel to say that a promise that was intended to induce voluntary action, and that did, in fact, induce that action, did not, as a matter of law do so, simply because at an earlier time, the plaintiff would have done that action without that promise. Given the facts that could have been found by the jury about the precise way in which doing the presentations was and was not "part of" Nardone's job, the trial judge's conclusion that the jury could not have found that the promise induced any action by the plaintiff is in error.

The judge's second conclusion with respect to the promissory estoppel claim was that any action or failure to act by the plaintiff in reliance on the promise made to him was not "detrimental." The judge's analysis in full, was that "the plaintiff failed to show that he was caused to forego some other employment opportunity ... because he relied on the promised payment."

This views too narrowly the nature of the equitable doctrine of promissory estoppel. As an equitable doctrine, promissory estoppel is concerned with any detrimental change in position, not only with economic detriment. Indeed, before us, LVI does not suggest that only economic detriment may give rise to a promissory estoppel claim, and rightly so: the Supreme Judicial Court has found detriment in forbearance from filing a lawsuit, regardless of whether it would have been successful, Sullivan v. Chief Justice for Admin. and Mgt. of the Trial Court, 448 Mass. 15, 27-30, 858 N.E.2d 699 (2006), and other cases have found detriment in giving up the right to do something one is legally entitled to do. See, e.g., LeMaitre v. Massachusetts Turnpike Auth., 452 Mass. 753, 755 n.2, 897 N.E.2d 1218 (2008) (plaintiff remained in job based on rate of benefits promised in defendant's employee manual). A party can rely on a promise to his or her detriment without showing that he or she forewent some other economic opportunity.

Before us, LVI argues instead that "merely remaining employed cannot constitute the detrimental reliance required for a promissory estoppel claim." In this, LVI relies primarily on our recent decision in Suominen v. Goodman Indus. Equities Mgt. Group, LLC, 78 Mass. App. Ct. 723, 941 N.E.2d 694 (2011), in which we held that "continued employment alone" is not sufficient to establish detrimental reliance as a matter of law -- that a reasonable juror could find that a person who continued in his or her employment did not suffer the required detriment. Id. at 732 n.11, 941 N.E.2d 694. But this is not relevant to the heart of plaintiff's claim here: that he suffered a legal detriment by doing further roadshow presentations, which were not a required part of his job responsibilities and that he otherwise would not have done, presentations that were intentionally induced by the defendant's promise and that were for its benefit. In fact, Suominen also held that a jury could find the requisite detriment in a plaintiff working harder in his or her position in reliance on a promise -- what is required is something more than continuing employment simpliciter. See id. at 734, 941 N.E.2d 694. This is analogous to the detriment Nardone testified to here: In reliance on Fried's promise to make him whole, Nardone agreed to do more roadshow presentations than he otherwise would have or was required to do as part of his job. Therefore, although they were not required to do so, a jury could have found that Nardone suffered the requisite detriment, and a judgment notwithstanding the verdict in favor of the defendant on this basis was inappropriate.

2. Quantum meruit. "To achieve recovery upon the theory of quantum meruit, the claimant must prove (1) that it conferred a measurable benefit upon the defendants; (2) that the claimant reasonably expected compensation from the defendants; and (3) that the defendants accepted the benefit with the knowledge, actual or chargeable, of the claimant's reasonable expectation." Finard & Co., LLC v. Sitt Asset Mgt., 79 Mass. App. Ct. 226, 229, 945 N.E.2d 404 (2011). The plaintiff argues, and apparently the jury found, that he conferred a benefit upon the defendant by continuing the roadshow presentations, that Fried's promise to make him whole in exchange for his continued participation in the roadshows created a reasonable expectation of compensation, and that LVI, through Fried, accepted the benefit knowing of the plaintiff's expectation.

The judge concluded, and the defendant argues on appeal, that "[t]here was no evidence that as a consequence of the defendant's promise he did anything that he was not already doing as part of the investor presentations. He did not take on some new obligation and the defendant did not receive some new benefit which it was not already entitled to receive." In other words, the judge concluded that, because doing the roadshow presentations was part of the plaintiff's job, his continuing to do them did not confer a measurable benefit on the defendant to which it was not already entitled. But since a reasonable juror could have found that doing the presentations was not a required part of Nardone's job, it equally could have found that his continuing to do them did confer a measurable benefit on LVI to which it was not already entitled. So this argument fails.

The defendant next argues that the evidence as a matter of law fails to establish that LVI had actual or chargeable knowledge of Nardone's expectation, or that either party reasonably expected LVI to pay Nardone for continuing to do the roadshow presentations. According the defendant, no such expectation could exist because the roadshow presentations were part of his job, he had never been paid for them in the past, and "there was no evidence that circumstances had changed."

But of course the jury were entitled to find changed circumstances: Nardone discovered that, as a result of an oversight, he had not received approximately one million dollars' worth of stock options, and he threatened to stop doing the roadshow presentations unless he was compensated, a threat to which Fried, on behalf of LVI, acceded. A jury could have concluded that, while he had no reasonable expectation of being paid for the roadshow presentations in the past, Fried's promise that Nardone would receive compensation commensurate with the options he did not receive created a reasonable expectation he would be paid in the future.

The argument that the jury could not have found that LVI had actual knowledge of Nardone's expectation likewise fails. Fried, LVI's CEO, induced this expectation by promising to compensate Nardone through the cash bonus that was part of the 2005 recapitalization, so he clearly had knowledge of Nardone's expectation that he would be paid. And, "knowledge of officers and directors having substantial control of all activities of a corporation is imputed to the corporation." Demoulas v. Demoulas, 428 Mass. 555, 584, 703 N.E.2d 1149 (1998), quoting Phoenix Sav. & Loan, Inc. v. Aetna Cas. & Sur. Co., 381 F.2d 245, 250 (4th Cir. 1967).

Finally, the defendant argues that the jury's award of $200,000 on the quantum meruit claim lacks evidentiary basis. According to LVI, an award of $200,000 was disproportionate to Nardone's work because Nardone testified to performing only thirty-one hours of work on the roadshow presentations after Fried's promise. But this argument incorrectly presupposes that the measure of recovery in quantum meruit must be based on the hourly rate the promisee might have charged for the work. Indeed, we have held that "[t]he reasonable value of the services to the promisor, that is to say, the value of the benefit conferred upon the promisor, is the appropriate restitutional measure of damages." Slawsby v. Slawsby, 33 Mass. App. Ct. 465, 467, 601 N.E.2d 478 (1992) (emphasis added). And there is ample evidence of the enormous value of Nardone's work to the promisor, LVI. Fried agreed to pay Nardone the value of his lost stock options -- which the jury was told was one million dollars -- in exchange for his continuing the presentations. A reasonable juror could have concluded that, if the value of Nardone's work to LVI had been less than the value of Nardone's lost stock options, Fried would not have promised this. It would have been irrational to do so, doubtless out of character for a highly successful CEO like Fried. And, given that the jury awarded Nardone $800,000 for promissory estoppel, awarding more than $200,000 on quantum meruit very well might have been duplicative. The $200,000 figure is however supported by the evidence.

The order allowing the motion for judgment notwithstanding the verdict is reversed. The judgment dated May 9, 2017, is vacated. The judgment on jury verdict is reinstated.

So ordered.

      The jury also found LVI not liable for unpaid commissions, and the judge granted summary judgment in favor of LVI on counts alleging age discrimination, breach of the covenant of good faith and fair dealing, and unpaid commissions owed anytime earlier than six years before the date the action was filed. Burton Fried, Paul Cutrone, Scott State, and David Pearson were also named as defendants, but all claims against them were dismissed before trial. This appeal does not concern any of the claims mentioned in this footnote, or any claims against the noncorporate defendants.

      "Circumstances that may give rise to an estoppel are (1) a representation intended to induce reliance on the part of a person to whom the representation is made; (2) an act or omission by that person in reasonable reliance on the representation; and (3) detriment as a consequence of the act or omission." Sullivan v. Chief Justice for Admin. and Mgt. of the Trial Court, 448 Mass. 15, 27-28, 858 N.E.2d 699 (2006) (citation omitted).

      The defendant would also rely on Hall v. Horizon House Microwave, Inc., 24 Mass. App. Ct. 84, 506 N.E.2d 178 (1987), which, it contends stands for the proposition that a party cannot show detriment merely by continuing in one's employment. For the reasons given above, we need not dwell on this point. To the extent the defendant reads Hall as holding that a party must show economic loss if he is to demonstrate that remaining in a job that he otherwise would not have due to a promise amounts to detriment, we disagree with its reading. As explained in Suominen, 78 Mass. App. Ct. at 734, 941 N.E.2d 694, the "type of detriment" at issue in that case -- like the type of detriment at issue here -- "was not discussed in Hall." In any event, even if the holding of Hall were as the defendant contends, it was superseded by the Supreme Judicial Court's subsequent opinion in Sullivan.

      LVI does not argue that, if we reverse, a new trial is required, based on the judge's statement that, if he had not granted JNOV he would have ordered a new trial because the judgments were against the weight of the evidence. In any event, because the judge's "decision ... on the motion for judgment notwithstanding the verdict points out the inadequacies which [he] found with the evidence regarding the promissory estoppel and quantum meruit claims," and that decision was infected by the legal errors we have described above, there is no basis for the judge to order a new trial. See Turnpike Motors, Inc. v. Newbury Group, Inc., 413 Mass. 119, 127, 596 N.E.2d 989 (1992) (decision to grant a new trial as against the weight of the evidence is reviewed for abuse of discretion, but a judge may exercise this discretion only "when the verdict 'is so greatly against the weight of the evidence as to induce in his mind the strong belief that it was not due to a careful consideration of the evidence, but that it was the product of bias, misapprehension or prejudice' "), quoting Scannell v. Boston Elevated Ry., 208 Mass. 513, 514, 94 N.E. 696 (1911).


author: HANLON, J.

text:
    COMMONWEALTH v. Timothy LAVIN.
    No. 17-P-408
    Appeals Court of Massachusetts, Worcester..
    Argued March 12, 2018 Decided October 30, 2018
    Justin Drechsler, Cambridge, for the defendant.
    Donna-Marie Haran, Assistant District Attorney, for the Commonwealth.
    Present: Vuono, Hanlon, & Wendlandt, JJ.
   HANLON, J.

After a jury trial, the defendant was convicted of armed robbery while masked, in violation of G. L. c. 265, § 17 ; home invasion, G. L. c. 265, § 18C ; assault and battery, G. L. c. 265, § 13A (a ) ; possession of ammunition without a firearm identification card, G. L. c. 269, § 10 (h ) ; and impersonating a police officer, G. L. c. 268, § 33. At the end of the trial, after the defendant was found guilty of possession of ammunition without a firearm identification card, he pleaded guilty to a sentence enhancing element of that charge, one that charged him with being a career criminal pursuant to G. L. c. 269, § 10G.

The defendant appeals, arguing that the judge erred (1) in denying his motion for a required finding of not guilty; (2) by allowing the Commonwealth's expert to testify about certain fingerprint evidence; and (3) in failing to grant a mistrial or to provide a curative instruction to the jury about comments made during the prosecutor's closing argument that the defendant alleges were burden-shifting. The defendant also contends that he was unfairly prejudiced by the Commonwealth's late disclosure of footwear impression evidence. We affirm.

Background. The jury heard the following evidence. On November 27, 2010, the victim was living in a second-floor apartment in a two-family house owned by his grandmother, who lived in the first-floor apartment. At approximately 2 A.M. , he was watching a movie when his dog began pacing, "barking and moaning, [and] growling ... [which] was unusual." Shortly afterwards, three men broke down his front door and entered the apartment, yelling, "WPD, WPD, Officer O'Malley. Where's the drugs, cocaine?"

Each intruder was wielding what appeared to be a semiautomatic firearm; two of the men were dressed in dark clothes and wore black ski masks and black "hoodies." The third man was not wearing a mask; he was approximately five feet, seven to nine inches tall, and had a "long skinny face." The victim described him as a "darker skinned individual. He wasn't Caucasian." The victim was unable to give any physical description of the other two men, apart from clothing, because they were masked and wore hoodies. One of those two men, who stayed with the victim "pretty much the whole time," was the defendant ; the victim described him as the largest of the three. He was approximately six feet tall, with a "[b]road build"; he wore a black hoodie, dark jeans, a black mask, and "Jordan 4" sneakers that were predominantly black with red and gray features. The other masked intruder was approximately five feet, ten inches tall.

The victim was very afraid, and his dog was barking continuously and urinating "all over the kitchen floor." The "individuals were shouting at [him], telling [him] to put the dog in the cage," and he did so. After that, "the individuals zip-tied" the victim's hands behind his back. The defendant then pointed a gun at the victim and ordered him into the living room, where the victim "eventually ... sat down on [his] couch." The victim noticed his new cellular telephone (cell phone) on the arm of the couch; although he was able to slide it behind his back unnoticed, he was unable to gain access to it.

The defendant stayed in the living room with the victim while the other two men ransacked the apartment. At some point while he was watching over the victim, the defendant asked the victim where the drugs and money were located in the apartment. The victim responded that he had a little marijuana in a drawer in the kitchen pantry. The defendant then led the victim at gunpoint to the kitchen pantry, but when he saw the victim's marijuana (which weighed approximately one ounce), the defendant insisted that there had to be more. The victim responded that he had no other drugs, and the defendant forced him back into the living room and ordered him to lie face down on the floor. When the victim refused, the defendant threatened him with the firearm; the victim believed he was going to die and did eventually lie face down on the floor. At the same time, the defendant also was communicating occasionally with the two other men.

While he was lying on the floor, the victim tried to reach for his cell phone, now under the couch, but the defendant grabbed it away from him. The defendant then left the living room, but quickly came back and reached behind the television stand, grabbed a wire, and used the wire to tie the victim's legs. He left the victim two more times, each time asking the victim if there was anything else in the apartment. The last time the defendant returned to the victim he was carrying a shoebox containing "junk" (including perfume and jewelry) and approximately $1,600 in cash. The victim estimated that, at that point, the men had been in his apartment for approximately forty-five minutes.

Roughly ten minutes later, the victim no longer heard the intruders and he believed that they had left. He was able to get to his feet and find a knife, but he was unable to cut the ties. He then "rolled down the stairs" to his grandmother's apartment and woke her up; his grandmother also was unable to cut the ties, so the victim asked her to call his friend, who lived nearby, to come and help. The friend came and freed the victim from the ties, and left shortly thereafter. The victim's grandmother then called the victim's mother, who arrived a short time later and called the police.

The victim then went back upstairs to his apartment to check on the damage. Walking up the stairs, he noticed a fully loaded ammunition clip on the stairs. He picked up the clip with the sleeve of his sweater, and then placed it back down in the same place. Although he spoke to the police when they responded to the call, the victim also went to the Worcester police station later that day and gave a more detailed account of the home invasion, including a description of the items that had been taken. He also described the Jordan sneakers the defendant had worn.

During their investigation, police officers recovered the ammunition clip from the stairs to the victim's second-floor apartment. Inside the apartment, they seized plastic zip ties and a "webcam-type device with a wire"; each of the items was logged as evidence of the crime. Officers also canvassed the victim's neighborhood; one neighbor, who lived about four houses away from the victim, told the police that he had been smoking a cigarette on his front porch when he noticed a tan vehicle parked across the street from his house at about 3 A.M. According to the neighbor, it was a "strange" vehicle, that is, he did not recognize it as belonging to anyone on the street. The neighbor saw a person get out of the vehicle and put on a hood, and then meet two individuals who were walking out of the woods at the end of the street, which is a "dead-end." The neighbor then saw the three men walk into the victim's house. Approximately one-half hour later the neighbor heard the vehicle drive away.

Worcester police Lieutenant David Grady recovered two latent fingerprints, one from the base of the ammunition clip and one from a zip tie found in the victim's apartment. After processing the fingerprints, Grady matched a fingerprint recovered from the ammunition clip to the defendant's left thumbprint.

At about 9 A.M. on November 28, 2010, police officers went to the defendant's girl friend's house. Inside the house, the officers found the defendant lying awake in one of the bedrooms and arrested him. In the same bedroom, the police found two bags containing two replica revolvers and one replica semiautomatic handgun. In addition, when he was arrested, the defendant was wearing a pair of Jordan sneakers, which the victim later identified as the sneakers worn by the intruder who had kept watch over him.

Later that day, after the police sought and received a search warrant, they returned to the girl friend's house. Outside the house, an officer saw a "light-colored Chevy Blazer" parked in the driveway. During the search, they seized additional evidence from the same bedroom where the defendant was found, including a black hooded sweatshirt and a pair of jeans from a hamper, winter knit hats from a pile of clothing on the floor, photographs of the defendant from a box in the closet, and a black bag containing, among other things, black gloves, bandanas, a replica revolver, and a replica semiautomatic handgun. In a second bedroom, officers found another black replica firearm and, in the kitchen, a garbage bag containing a Samsung cell phone with its battery and back cover removed. The victim later identified the seized Samsung cell phone as his.

Discussion. 1. Motion for required finding of not guilty. In reviewing the denial of a motion for a required finding of not guilty, we review the evidence in the light most favorable to the Commonwealth, along with reasonable inferences therefrom, to determine whether we are satisfied that the Commonwealth presented "enough evidence that could have satisfied a rational trier of fact of each ... element beyond a reasonable doubt." Commonwealth v. Torres, 468 Mass. 286, 292, 10 N.E.3d 1065 (2014), quoting Commonwealth v. Latimore, 378 Mass. 671, 677-678, 393 N.E.2d 370 (1979). The jury's inferences must be "reasonable and possible" (quotation omitted). Commonwealth v. Woods, 466 Mass. 707, 713, 1 N.E.3d 762, cert. denied, 573 U.S. 937, 134 S.Ct. 2855, 189 L.Ed.2d 818 (2014). In this case, the question is whether the Commonwealth presented sufficient evidence to identify the defendant as one of the three intruders.

Relying on Commonwealth v. Morris, 422 Mass. 254, 662 N.E.2d 683 (1996), the defendant argues that the thumbprint on the ammunition clip was the only evidence identifying him as one of the intruders and that evidence was insufficient to prove beyond a reasonable doubt that he left the thumbprint on the clip during the commission of the crime. In Morris, the Supreme Judicial Court held that fingerprint evidence is admissible and that "[f]ingerprint evidence coupled with other evidence may rationally link a defendant to a crime." Id. at 257, 662 N.E.2d 683. However, there, the court concluded that fingerprint evidence on a mask worn by one of a group of intruders, even when considered with other evidence, was not sufficient to establish beyond a reasonable doubt that "the defendant had been at the crime scene and impressed his thumbprint on the mask at that time." Id. at 259, 662 N.E.2d 683. In that case, there also was evidence that "linked the defendant, or at least his residence," to two of the known intruders. Id. at 258, 662 N.E.2d 683. Nonetheless, the court concluded that the evidence was insufficient -- even when combined with evidence of the defendant's "possible resemblance to one of the intruders, the general resemblance of the motor vehicle owned by the defendant's mother to a vehicle leaving the crime scene, and the clarity of the thumbprint." Id. The court determined that this "add[ed] little weight to the evidence," and concluded that "[o]n the evidence a doubt that was reasonable as to the defendant's guilt had to remain." Id. at 260, 662 N.E.2d 683. See Commonwealth v. Anitus, 93 Mass. App. Ct. 104, 108, 97 N.E.3d 700 (2018) ("[T]he presence of a fingerprint on an object alone provides insufficient data to determine when the fingerprint was placed on the object. Indeed, fingerprints can last for months after placement" [citations omitted] ).

The facts in this case are easily distinguished because there was considerable evidence besides the thumbprint linking the defendant to the crime. First, the victim described the defendant, the largest of the three intruders (who had stood watch over him), as being approximately six feet tall with a "[b]road build" and wearing dark jeans, a black "hoodie," and black "Jordan 4" sneakers with red and gray features. In the bedroom where the police found the defendant, they also found a black hooded sweatshirt and a pair of jeans in a hamper. At the time of his arrest, the defendant was wearing Jordan sneakers. The victim later identified the sneakers as those worn by the largest intruder who had kept watch over him during the home invasion.

Second, the victim told the police that the three intruders were carrying semiautomatic weapons when they broke into his apartment. In the bedroom where they found the defendant, the police also found bags containing replica revolvers and a replica semiautomatic weapon, photographs of the defendant in the closet, and several more replica firearms.

Perhaps most important, "critically important," according to the judge when she denied the defendant's motion for a required finding, the police found in a garbage bag in the kitchen a Samsung cell phone (broken in three pieces). When the victim went to the police station for an interview soon after the home invasion, he described for the police items taken from his apartment during the home invasion, including a Samsung cell phone. He also identified that Samsung cell phone recovered during the search as the cell phone missing from his apartment after the home invasion. In addition, as the judge noted, given that the victim had not observed the ammunition clip earlier, it is very likely that it was left on the victim's stairway at the time of the home invasion and that the defendant's fingerprint was impressed on it at that time.

Finally, the victim's neighbor told the police that he saw a tan vehicle parked near the victim's home around the time of the incident; he saw someone get out of the vehicle, "put a hood on," and go into the victim's house with two other individuals who appeared to have "come out of the woods" near the end of the victim's dead-end street. At the time the police executed a search warrant at the house of the defendant's girlfriend, one of the officers noticed a "light-colored Chevy Blazer" parked in the driveway of that house.

We are satisfied that, here, the fingerprint evidence coupled with all of the other evidence rationally linked the defendant to the crimes charged and was sufficient to persuade the jury beyond a reasonable doubt of the defendant's guilt. See Commonwealth v. Webster, 480 Mass. 161, 167, 102 N.E.3d 381 (2018) ("To be sure, the Commonwealth's case was circumstantial. Even so, 'circumstantial evidence is sufficient to establish guilt beyond a reasonable doubt.' Commonwealth v. Miranda, 458 Mass. 100, 113 [934 N.E.2d 222] [2010], cert. denied, 565 U.S. 1013 [132 S.Ct. 548, 181 L.Ed.2d 396] [2011], S.C., 474 Mass. 1008 [49 N.E.3d 675] [2016]"). See also Brangan v. Commonwealth, 478 Mass. 361, 364-365, 84 N.E.3d 1269 (2017). As a result, the judge did not err in denying the defendant's motion for a required finding of not guilty.

2. Late disclosure of evidence. A few weeks before trial, the Commonwealth provided to the defendant photographs of "footwear impressions" left in the victim's apartment. On the first day of trial, the defendant moved to dismiss the indictments on the ground that the Commonwealth had failed to provide "exculpatory" evidence in a timely manner. After the disclosure, the defendant had located an expert who, defense counsel said, would testify that his analysis would exclude the defendant as the source of the imprints. The judge denied the motion, saying that the defendant had not shown that he had been prejudiced by the late disclosure.

At trial, in his opening statement, defense counsel told the jury, as he had informed the judge earlier, that his expert witness would testify that "[h]e specifically excludes Tim Lavin as the source of that print." However, in the middle of the trial, the expert recanted and told defense counsel that he no longer could provide that testimony. The defendant then moved for a mistrial because, as he argued, he had made a promise to the jury that he no longer could keep. The judge denied the motion for a mistrial, but also ruled that the Commonwealth would be precluded from presenting any evidence of footwear impressions. In addition, the judge gave specific, curative instructions to the jury in her final charge, saying that she had excluded all of the evidence relating to the footwear impressions, that the jurors were to disregard anything they might have heard regarding footwear impressions, and that they were not to consider that evidence in any way.

"A defendant seeking relief as a result of delayed disclosure has the burden of showing that he was prejudiced by the delay." Commonwealth v. Brien, 67 Mass. App. Ct. 309, 310, 853 N.E.2d 590 (2006). "In measuring prejudice, 'it is the consequences of the delay that matter, not the likely impact of the nondisclosed evidence.' " Commonwealth v. Almeida, 452 Mass. 601, 609, 897 N.E.2d 14 (2008), quoting Commonwealth v. Stote, 433 Mass. 19, 23, 739 N.E.2d 261 (2000). "When confronted with the Commonwealth's failure to comply with its discovery obligations," a judge is afforded considerable discretion.

Commonwealth v. Fossa, 40 Mass. App. Ct. 563, 567, 666 N.E.2d 158 (1996). Where "there has been disclosure but no evidence of bad faith, the question becomes whether the defendant had sufficient time to adjust to the disclosure in shaping and preparing his defense.... See Commonwealth v. Hamilton, 426 Mass. 67, 70, 686 N.E.2d 975 (1997) (denial of motion for two-week continuance not abuse of discretion where defendant failed to show prejudice by late disclosure of inculpatory fingerprint evidence)." Commonwealth v. Lao, 460 Mass. 12, 20, 948 N.E.2d 1209 (2011).

We see no abuse of discretion. The defendant does not allege that the Commonwealth acted in bad faith. The evidence that was not disclosed until a few weeks before trial was, in the end, inculpatory, and the Commonwealth was precluded from using it in any way. We are satisfied that the judge's thoughtful solution, including her curative instructions to the jury, obviated any possible prejudice to the defendant from the late discovery or his counsel's unfulfilled promise. See id. See also L.L. v. Commonwealth, 470 Mass. 169, 184 n.27, 20 N.E.3d 930 (2014). Contrast Commonwealth v. Chambers, 465 Mass. 520, 534-535, 989 N.E.2d 483 (2013) (Defendant prejudiced where judge reversed her pretrial ruling and precluded during trial evidence important to defense without providing sufficient curative jury instruction).

3. Expert testimony. Lieutenant Grady, testifying as an expert on latent fingerprint identification, opined that the fingerprint recovered from the ammunition clip found on the victim's stairs belonged to the defendant. Describing the method used to extract the print and identify the defendant, Grady properly framed his findings in the form of an opinion, not overstating the match as a certainty; on cross-examination he clarified that he did not know when the defendant's thumbprint was "impressed upon the clip." See Commonwealth v. Fulgiam, 477 Mass. 20, 44-45, 73 N.E.3d 798, cert. denied, --- U.S. ----, 138 S.Ct. 330, 199 L.Ed.2d 221 (2017).

At the end of Grady's testimony, the prosecutor asked him whether his findings had been verified by another expert, and he responded, "Yes." There was no objection. That question should not have been asked. See id. at 45-46, 73 N.E.3d 798, citing Commonwealth v. Whitaker, 460 Mass. 409, 421-422, 951 N.E.2d 873 (2011) ("Expert testimony as to the opinions or conclusions of a second, nontestifying expert constitutes inadmissible hearsay"). However, any possible prejudice was cured when the verifying analyst did testify, thus allowing the defendant an opportunity to cross-examine her. See Commonwealth v. Hurley, 455 Mass. 53, 63, 913 N.E.2d 850 (2009) (Although witness was unavailable, admitting her testimony from pretrial detention hearing did not violate confrontation clause because defendant had opportunity to cross-examine witness at earlier hearing). Here, the defendant concedes that the opportunity for cross-examination cured any constitutional confrontation issue; however, he contends that "the hearsay and vouching issues remained." He cites no authority for that argument, and in any event, it is clear that any error did not create a substantial risk of a miscarriage of justice.

4. Closing argument. Finally, the defendant argues that his motion for a mistrial was wrongly denied, because the prosecutor in her closing argument made remarks that were "burden-shifting." The defendant objected to the remarks, and so we review to determine whether there was error and, if so, whether that error was prejudicial. See Commonwealth v. Johnson, 463 Mass. 95, 113-114, 972 N.E.2d 460 (2012). Specifically, the prosecutor said:

"You've heard the defense say Timothy Lavin didn't live
there. But there was no evidence to the contradictory [sic ].
"Think about what Officer Bossolt said. He went into the house, nine o'clock in the morning. Went upstairs. And there's Timothy Lavin in the master bedroom in bed.
"If Timothy Lavin doesn't live at that house or doesn't stay at that house, then why is Timothy Lavin in someone's bed at nine o'clock in the morning? I suggest to you, based on what you heard, he stayed at that house." (Emphasis supplied.)

The defendant contends that, with the emphasized phrase above, the prosecutor shifted the burden to the defendant requiring him to testify or to present evidence countering the argument.

"[A] 'prosecutor ... cannot make statements that shift the burden of proof from the Commonwealth to the defendant.' " Johnson, 463 Mass. at 112, 972 N.E.2d 460, quoting Commonwealth v. Amirault, 404 Mass. 221, 240, 535 N.E.2d 193 (1989). "Such burden shifting typically arises where a prosecutor ... 'calls the jury's attention to the defendant's failure to call a witness or witnesses, or ... "to contradict testimony." ' " Johnson, supra, quoting Commonwealth v. Tu Trinh, 458 Mass. 776, 787, 940 N.E.2d 871 (2011).

Although the phrase in question would have been better left unsaid, "we do not find that this transgression falls into the realm of prejudicial error." Johnson, 463 Mass. at 113, 972 N.E.2d 460. "[T]he prosecutor did not focus the jury's attention on a specific element missing from the defense, nor did the prosecutor otherwise suggest to the jury -- either implicitly or explicitly -- that the defendant had an affirmative duty to counter the Commonwealth's evidence against him." Id. A prosecutor is entitled to argue "the facts in evidence and the reasonable inferences that may be drawn therefrom." Commonwealth v. Diaz, 478 Mass. 481, 487, 86 N.E.3d 485 (2017).

In addition, the judge twice informed the jury -- once before and once after the closing arguments -- that closing arguments are not evidence. In her final charge, the judge emphasized that the Commonwealth has the burden of proof and that the "defendant is not required to call any witnesses or produce any evidence, since he's presumed to be innocent." We presume the jury followed the judge's instructions. See Commonwealth v. Andrade, 468 Mass. 543, 549, 11 N.E.3d 597 (2014). After reviewing the prosecutor's remarks in the context of the whole argument, together with the evidence admitted at trial and the judge's instructions to the jury, we are satisfied that there was no prejudicial error. See Diaz, 478 Mass. at 490, 86 N.E.3d 485.

Judgments affirmed.

      Charges of possession of a firearm without a firearm identification card as a career criminal, use of a firearm while committing a felony, and possession of a class D substance were dismissed at the request of the Commonwealth prior to trial.

      The victim understood "WPD" to mean the Worcester police department. Shortly after the intruders entered, the victim realized they were not police officers. He testified, "So when they weren't presenting any badges and they were just flashing guns at me, that's when I kind of noticed they just weren't police."

      Later, the victim clarified, "Not too dark-skinned, but he wasn't Caucasian." He described himself as "[h]alf Puerto Rican, half Irish," and testified that the man was darker than he was.

      We refer to this man as the defendant, although there was no direct identification testimony. The Commonwealth's case was circumstantial and the issue for the jury at the end of the trial was, in fact, whether this man was the defendant.

      The victim testified that he was a sneaker collector and, therefore, noticed the specific details of this intruder's sneakers.

      The victim's previous cell phone, a "Samsung Instinct," had been deactivated but was located on a stand in the apartment kitchen.

      The victim had not seen the ammunition clip on the stairs when he returned to his apartment before the home invasion.

      The victim returned to the police station after that time and gave the police a list of items taken from his apartment during the home invasion.

      The neighbor testified that even though, according to the police report, he had identified the make, model, and color of the vehicle when he was interviewed by the police around the time of the incident, at trial, he could not recall specific details. He remembered that he had spoken with the police, and agreed that he had told them at the time that it was a tan vehicle, but he was unable to be more explicit.

      The prior evening (on the day when the home invasion occurred), the same officer noticed that the defendant's girl friend had driven that same Chevy Blazer to the police station.

      When one of the officers "powered up" the Samsung cell phone, the victim was able to predict accurately what would appear as well as "the first several contacts" recorded on the cell phone.

      Initially, the Commonwealth intended to offer evidence that footwear impressions obtained at the victim's apartment at the time of the crimes were "similar to" the soles of the sneakers that the defendant was wearing when he was arrested. After receiving the report of the defendant's expert, the Commonwealth's expert, using a new procedure, had developed evidence showing that, in fact, the prints were consistent with the defendant's shoes and were, for that reason, inculpatory. Defense counsel so informed his expert, who then responded that "he would not be helpful to the defense."

      After the testimony of Lieutenant Grady, whom the defendant cross-examined about any "imprints" left by the intruders' footwear, the judge gave a curative instruction that she was striking all testimony regarding footwear impressions and that the jury were to disregard any such testimony.

      The defendant did not cross-examine that expert.

      We remind lawyers that one way to ensure that they stay within the bounds of permissible argument during their closing arguments would be to review the succinct statement of the law regarding closing arguments found in Mass. G. Evid. § 1113(b) (2018).