text:
    COMMONWEALTH v. Karen CRONIN.
    17-P-974
    Appeals Court of Massachusetts.
    Entered: October 24, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   On appeal from her convictions of negligent operation of a motor vehicle and operating under the influence of intoxicating liquor in violation of G. L. c. 90, § 24, the defendant, Karen Cronin, claims error in the trial judge's acceptance of her waiver of a jury trial because (1) the defendant's written waiver was defective; (2) the judge's colloquy was insufficient; and (3) defense counsel failed to provide the certification required by G. L. c. 218, § 26A. We affirm.

Background. On May 2, 2016, the defendant filed a motion on a form titled "Motion Pursuant to Rule 19(a) for Relief from Election of Jury or Jury-Waived Trial" marked both to request relief from a prior "election of trial ... by judge," and to "move for trial ... by judge." The form was signed by the defendant, her attorney, and the judge. The same day, the judge conducted a colloquy with the defendant concerning her waiver of her right to a jury trial. No separate written waiver of the right to a jury trial was filed. Defense counsel did not file a certification with the court verifying that the attorney had informed the defendant of the consequences of waiving the right to a jury trial.

Discussion. 1. Written waiver. Before a judge can accept a defendant's waiver of the right to trial by jury, the defendant must first sign and file a written waiver. See G. L. c. 218, § 26A ; G. L. c. 263, § 6 ; Mass. R. Crim. P. 19 (a), 378 Mass. 888 (1979); Dist./Mun. Cts. R. Crim. P. 4 (e). Our case law makes the requirement of a signed written waiver of the right to a jury trial a "bright line rule." Commonwealth v. Osborne, 445 Mass. 776, 781 (2006).

The statutory requirement of a defendant's written waiver of the right to a jury trial does not, however, prescribe a particular form of writing. See G. L. c. 263, § 6 (defendant may "waive his right to trial by jury by signing a written waiver thereof and filing the same with the clerk of the court"). Consequently, the use of a motion form to effect a waiver of the right to a jury trial does not render such waiver per se invalid. Compare Osborne, supra at 778 (reversing judgment, finding "[t]here [was] no evidence that the defendant ever saw, read, or signed a written waiver of his right to a jury trial"). Here, the motion was signed by the defendant, thus satisfying Osborne's requirement of a signed written waiver, which evidences a period of calm reflection and deliberative decision-making by the defendant. While we do not endorse the use of the motion here rather than the signed jury waiver, the motion sufficed for this purpose.

Additionally, although the defendant's motion form was filled out in a manner susceptible of two contradictory interpretations -- that she sought relief from a prior election of a jury-waived trial, and that she sought a jury-waived trial -- the judge cured any ambiguity by asking the defendant during the colloquy whether, by "signing this form," she intended to waive her right to a jury trial. Both the written waiver and the defendant's responses during colloquy informed the judge's assessment of the voluntariness and intelligence of the defendant's waiver of her right to a jury trial. See Commonwealth v. Hernandez, 42 Mass. App. Ct. 780, 785 (1997).

2. Colloquy. Before accepting a defendant's waiver of her right to trial by jury, a judge must conduct a colloquy to determine that the waiver is made knowingly and voluntarily. Ciummei v. Commonwealth, 378 Mass. 504, 509-510 (1979). However, "[t]he colloquy ... is only evidence of whether a defendant's waiver of the right to trial by jury was voluntary and intelligent. It is not an independent constitutionally required prerequisite to a valid waiver of the right to a jury trial." Commonwealth v. Schofield, 391 Mass. 772, 775 (1984). Consequently, "omissions [of particular inquiries suggested in Ciummei ] alone are not enough to make the colloquy inadequate. Whether a colloquy conducted by a trial judge before accepting a defendant's waiver of his right to trial by jury is adequate depends upon the specific facts of each case." Commonwealth v. Abreu, 391 Mass. 777, 779 (1984).

The defendant contends that the judge erred while explaining the requirement of unanimity when he said that jurors "basically have to unanimously come to a verdict." The defendant suggests the word "basically" may be understood to modify "unanimously," and therefore misstates the standard for a jury verdict by suggesting a verdict could be reached without the agreement of all jurors.

The omission from a colloquy of a description of the requirement of jury unanimity does not invalidate a jury waiver. See Commonwealth v. Hendricks, 452 Mass. 97, 107-108 (2008). However, where a judge incorrectly explains the differences between jury and bench trials, a jury waiver may be held to be invalid. See Commonwealth v. Towers, 35 Mass. App. Ct. 557, 559 (1993). Here, the judge's use of the term "basically" does not appear to modify the term "unanimously" in any way that could confuse a defendant about the requirement of unanimity in a jury verdict. There are no degrees of unanimity to which "basically" could relate.

The defendant further maintains that the judge should have asked whether she drank alcohol on the day of the trial because she had been charged with a crime involving alcohol. She further asserts that the judge should have reconsidered his acceptance of the defendant's waiver once testimony revealed that the defendant had bipolar disorder and took medication.

In a jury waiver colloquy, "[t]he judge should make sure that the defendant ... is not intoxicated or otherwise rendered incapable of rational judgment" to ensure that the waiver is made intelligently and voluntarily. Ciummei, 378 Mass. at 510. See Towers, 35 Mass. App. Ct. at 559. However, a judge may also evaluate whether a defendant is intoxicated or otherwise incompetent by observing the defendant's behavior during the colloquy. See Commonwealth v. Hardy, 427 Mass. 379, 383 (1998) ; Commonwealth v. Onouha, 46 Mass. App. Ct. 904, 905 (1998). Here, the record indicates that the defendant responded appropriately to questions posed by the judge during the colloquy, and the judge was able to observe her demeanor. There was no error.

There is likewise no support in the record for the suggestion that the judge should have reconsidered the voluntariness of the defendant's waiver after the testimony revealed she had bipolar disorder and took medication. During the trial, when the defendant did not understand a question, she said so and sought clarification. Furthermore, the judge was able to observe the defendant's demeanor, and to determine whether the defendant was impaired or incompetent earlier in the day during the jury waiver colloquy.

3. Defense counsel certification. Finally, the defendant contends that her convictions must be reversed because counsel did not file the defense certification contemplated by G. L. c. 218, § 26A ("defense counsel shall execute a certificate signed by said counsel indicating that he has made all the necessary explanations and determinations regarding such waiver"). Notably, § 26A applies only to trials in the Boston Municipal Court and the District Court; it is not a requirement applicable to all trials.

The counsel certificate is materially different from the written waiver of the right to a jury trial. The purpose of the written jury waiver by the defendant is to "assure[ ] that the ultimate decision regarding waiver of the jury be left to the defendant himself, not his counsel." Osborne, 445 Mass. at 781, quoting Commonwealth v. Pavao, 423 Mass. 798, 803 (1996). The counsel certificate is not signed by the defendant and does not reflect the defendant's decision-making. Rather, it is directed to "ensuring an evidentiary record that will foreclose most posttrial disputes about whether the waiver was knowingly and voluntarily made." Osborne, supra. To date, the case law has considered the certificate as some evidence that the defendant understood the rights he or she was giving up; we have looked to the certificate in conjunction with the colloquy to determine whether the waiver was made voluntarily and intelligently. See Hernandez, 42 Mass. App. Ct. at 785. Here, we are satisfied that the motion, signed by the defendant, as well as the defendant's representation to the judge that she had conferred with counsel and was satisfied with counsel's representation, together with the balance of the colloquy, were sufficient to establish that the defendant had adequate advice before she waived her right to a jury trial.

Judgments affirmed.

      The colloquy was as follows:
      The Court : "Ma'am, I see you've signed this form. Is that correct?"
      The Defendant : "Yes."
      The Court : "Before you did, you spoke with your attorney?"
      The Defendant : "Yes, sir."
      The Court : "You're satisfied with the representation?"
      The Defendant : "Yes, sir."
      The Court : "You understand by signing this form, you're waiving your right to a jury trial? We actually have jurors here today who basically have to unanimously come to a verdict. By waiving the jury, I will hear the case. The Commonwealth is still bound by the rules of evidence. Do you understand that?"
      The Defendant : "Yes, sir."
      The Court : "You're doing this knowingly, voluntarily and freely?"
      The Defendant : "Absolutely."
      The Court : "Nobody's forced you, is that correct?"
      The Defendant : "I'm sorry?"
      The Court : "No one's forced you to do this?"
      The Defendant : "No."
      The Court : "All right. I accept it. Thank you so much."
      The Defendant : "You're welcome. Thank you."
      The Court : "All right. That's allowed."

      We are ever mindful of the busy docket of the Boston Municipal Court and the District Court. However, G. L. c. 263, § 6, requires a written jury waiver. The form removes the type of ambiguity that otherwise presents itself in this appeal, and contains the attorney certification also absent in this case. See E.B. Cypher, Criminal Practice and Procedure § 31:18 (4th ed. 2014).

      In addition, the directive in G. L. c. 218, § 26A, to make "all the necessary explanations and determinations" is necessarily a highly case-specific exercise which does not lend itself easily to a bright line test. Moreover, the substance of the communication is privileged. In contrast, the jury waiver form closely follows the language of the statute.


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. Dale JENKINS.
    17-P-767
    Appeals Court of Massachusetts.
    Entered: October 24, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   A jury convicted the defendant of negligent operation of a motor vehicle, in violation of G. L. c. 90, § 24 (2) (a ). The defendant raises three arguments on appeal: (1) the prosecutor improperly commented on the defendant's right to remain silent, (2) the judge erred in admitting lay and expert opinion testimony regarding the vehicle's speed, and (3) the evidence was insufficient to prove negligence beyond a reasonable doubt. We affirm.

1. Right to remain silent. The defendant argues that the prosecutor improperly commented on his constitutional right to remain silent and impermissibly shifted the burden of proof. He rests this argument on a series of questions the prosecutor posed on cross-examination about the defendant's claim that he swerved to avoid hitting a deer. More specifically, the prosecutor asked a series of questions seeking to establish that, in the immediate aftermath of the accident, the defendant did not mention anything about a deer -- whether to police, an accident reconstructionist, first responders, a bystander, or medical personnel at the hospital. The defendant argues that this line of questioning was impermissibly designed to impeach him with his prearrest and postarrest silence, in violation of the Fifth and Fourteenth Amendments to the United States Constitution, and of art. 12 of the Massachusetts Declaration of Rights.

The defendant's brief proceeds on the incorrect assumption that prearrest and postarrest statements are subject to the same constitutional analysis. The defendant is correct that postarrest "silence cannot be used for the substantive purpose of permitting an inference of guilt, and ... taking the witness stand does not constitute a waiver of that constitutional right. United States v. Hale, 422 U.S. 171, 175, 181 (1975)" (footnote omitted). Commonwealth v. Mahdi, 388 Mass. 679, 694 (1983). By contrast, however, prearrest silence may be used to impeach a defendant without violating the Fifth Amendment or denying the fundamental fairness guaranteed by the Fourteenth Amendment. Jenkins v. Anderson, 447 U.S. 231, 238-239 (1980). That said, under our common-law evidentiary principles, "impeachment of a defendant with the fact of his pre-arrest silence should be approached with caution," Commonwealth v. Thompson, 431 Mass. 108, 117, cert. denied, 531 U.S. 864 (2000), quoting Commonwealth v. Nickerson, 386 Mass. 54, 62 (1982), because such evidence is of "extremely limited probative worth," Nickerson, supra at 61 n.6, quoting People v. Conyers, 52 N.Y. 2d 454, 458 (1981). Whenever such impeachment "is undertaken, it should be prefaced by a proper demonstration that it was 'natural' to expect the defendant to speak in the circumstances." Id. at 62. See Commonwealth v. Gardner, 479 Mass. 764, 770 (2018).

Here, all but one of the prosecutor's references to the defendant's silence were to the period before his arrest, and the defendant does not argue that they failed to meet the common-law standard for admission. Thus, the defendant has not shown error with respect to the references to prearrest silence. However, one of the prosecutor's questions pertained to the defendant's postarrest silence, and this reference was clearly impermissible. No objection was raised and thus, the question before us is whether the reference to the single instance of postarrest silence resulted in a substantial risk of a miscarriage of justice where it was cumulative of the references to prearrest silence which have not been shown to be erroneous. See Commonwealth v. Letkowski, 469 Mass. 603, 617 (2014) (applying substantial risk analysis to unpreserved claim of postarrest silence). "An error creates a substantial risk of a miscarriage of justice unless we are persuaded that it did not materially influence the guilty verdict." Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). To make that determination, we look at the factors identified in Alphas, supra.

In the context of this case, we conclude that the erroneous reference to postarrest silence did not result in a substantial risk of a miscarriage of justice. To begin with, the primary focus of the defense was the issue of intoxication -- not the deer. Indeed, the vast bulk of the defendant's closing focused on the issue of intoxication, no doubt because it was an element of two of the charges, and its elimination from the case would leave the jury with the option of convicting only on the lesser included offense of negligence. Defense counsel's strategy paid off; the defendant was acquitted of both operating under the influence of alcohol and the firearm charge. It is true that the defendant's postarrest silence related to his defense that he was not negligent because he had swerved to avoid a deer. However, it must be noted that negligence is to be viewed in the totality of the circumstances, which here included that the defendant had been drinking, admitted going over the speed limit, was driving a powerful performance car on a dark road late at night, that neither he nor his passenger was wearing a seatbelt, alcohol was present in the vehicle, and it could readily be inferred that the purpose of the ride was to demonstrate the power and speed of the vehicle to the passenger even though the defendant did not have much familiarity with the vehicle, having driven it fewer than ten times. In these circumstances, the deer was but one part of the bigger picture; it was not a "silver-bullet" defense. In addition, the defendant referred to the loss of his career due to a "stupid decision," which the jury were free to accept as an acknowledgement that he made a bad decision with respect to some aspect of his driving; it matters not for these purposes whether the decision related to alcohol, speed, or something else. In any event, his admission was at odds with his deer defense. In short, we conclude that reference to the defendant's postarrest silence did not result in a substantial risk of a miscarriage of justice.

2. Opinion testimony. The defendant argues that the Commonwealth's expert should not have been permitted to opine that the defendant's vehicle's speed was "greater than reasonable" because the opinion had no scientific basis. Admissible expert testimony must, among other things, be "based on facts or data of a type reasonably relied on by experts to form opinions in the relevant field" and have a "[reliable underlying] process or theory [that is] applied to the particular facts of the case in a reliable manner." Commonwealth v. Barbosa, 457 Mass. 773, 783 (2010), cert. denied, 563 U.S. 990 (2011).

The trial transcript belies the defendant's contention that the expert's testimony was impermissibly conclusory. The expert testified without objection to the relationship between the "critical scuff mark" and the defendant's vehicle's speed, center of gravity, engine strength, width of tires, and width of wheel base. In addition, he testified without objection that "[a] vehicle traveling in the road, [with] normal steering, [it] will not leave any marks. At a normal speed, the car is made to make that turn." The expert witness based his opinion on his knowledge of vehicle dynamics and his observations of the accident scene and the defendant's vehicle; the opinion was properly admitted. Compare Commonwealth v. Addy, 79 Mass. App. Ct. 835, 838-839 (2011).

The defendant also argues that the admission of the expert witness's opinion that the vehicle's speed was "greater than reasonable" essentially informed the jury that the defendant's operation of the vehicle was negligent, and therefore should have been excluded because it touched on the ultimate issue for the jury to decide. We disagree. The opinion did not come "close to an opinion as to whether the defendant is guilty." Commonwealth v. Canty, 466 Mass. 535, 542 (2013). Rather, the expert's opinion spoke only to speed, which was just one factor to be considered in the question of the defendant's negligence. See Commonwealth v. Duffy, 62 Mass. App. Ct. 921, 922 (2004). As the judge instructed, the jury were to "examine all the evidence about how the accident happened." Accordingly, admitting the opinion regarding the reasonableness of the speed was not error. Compare Ford v. Boston Hous. Auth., 55 Mass. App. Ct. 623, 626 (2002) (no error in admission of expert's conclusion of building code violation where it "did not resolve the ultimate question of negligence").

The defendant also contends that the trial judge abused her discretion in permitting lay witness testimony concerning the defendant's vehicle's speed preceding the crash, where the lay witness heard but did not see the vehicle in motion. We disagree. Lay witness opinion is admissible where it is "(a) rationally based on the perception of the witness; (b) helpful to a clear understanding of the witness's testimony or the determination of a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge." Canty, 466 Mass. at 541, quoting Mass. G. Evid. § 701 (2013).

Here, the lay witness was a neighbor who lived approximately seventy-five feet from the road near the accident scene. The neighbor testified that he had extensive experience in both seeing and hearing motor vehicles pass his house at what he perceived to be a high rate of speed. On the night in question, immediately before the crash, he observed the sound of the defendant's motor vehicle approaching: "a very high revving engine," "moving quickly through [four] gears," "very, very loudly," with a "very high torque." Even were we to assume, as the defendant argues, that there was insufficient foundation from these facts to permit the neighbor's lay opinion that the defendant was traveling at a "high rate of speed," we discern no prejudice given that this opinion was essentially duplicative of the Commonwealth's expert's opinion. Moreover, it was unlikely to add anything to the natural commonsense inference the jury were permitted to draw from the neighbor's testimony that the defendant was moving quickly through gears. The neighbor's testimony was based on "common experience" and "a process of reasoning familiar in everyday life," and was admissible lay opinion. Canty, supra at 542.

3. Sufficiency of the evidence. In reviewing the sufficiency of the evidence, we must determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).

The essential elements of negligent operation of a motor vehicle are: "(1) operat[ion of] a motor vehicle, (2) upon a public way, (3) ... negligently so that the lives or safety of the public might be endangered." Duffy, 62 Mass. App. Ct. at 921. Only the third element is at issue. Taken as a whole, and viewed in the required light most favorable to the Commonwealth, the evidence sufficed to permit the jury to conclude beyond a reasonable doubt that the defendant was negligent. The defendant had been drinking before he got behind the wheel of the vehicle, and it was for the jury to determine from the contradictory evidence how much he had consumed. The jury were not required to accept his calculation of the amount. The circumstances of the evening permitted the jury to conclude that, after an evening of drinking around a fire pit, the defendant offered to take the passenger (a friend) for a ride to show off his car, which was a vintage high performance Corvette whose engine the defendant had recently had redone to increase its horsepower. The defendant had no great experience handling the car, having driven it fewer than ten times. The accident occurred late at night on an unlit section of road in a lightly-settled, wooded area -- conditions that would favor driving cautiously, rather than speeding. Yet, he was driving above the speed limit, and above the critical speed for the road. The defendant himself was not wearing a seatbelt, nor did he ensure that his passenger was. There was an open container of beer in the console next to the driver's seat. The jury were not required to accept the defendant's testimony that the passenger placed it there. The details of the horrific crash spoke not only to the defendant's loss of control of the vehicle, but to the speed with which he had been traveling before it occurred. The passenger was thrown from the vehicle and suffered severe injuries, including a partial internal decapitation; the vehicle came to rest 245 feet from the critical scuff mark; the vehicle split one utility pole into pieces and knocked down three small trees before coming to its final rest on a fourth tree; the vehicle dragged one tree approximately twenty-two feet; and the defendant's car had extensive damage. The jury had photographs of the scene and of the condition of the car to consider. The jury were not required to accept the defendant's claim that he swerved to avoid a deer. Finally, the defendant's statement that his career would be ruined because of "this stupid decision," could easily be interpreted as an admission that he knew he had driven in a manner, or at a time, he should not have.

Judgment affirmed.

      The conviction came as a lesser included offense to the charge of operating a motor vehicle while under the influence of intoxicating liquor and being negligent, causing serious bodily injury. The jury returned a verdict of not guilty on a charge of carrying a loaded firearm while under the influence of intoxicating liquor. After trial, the trial judge allowed the defendant's renewed motion for a required finding of not guilty of assault and battery by means of a dangerous weapon causing serious bodily injury.

      The Supreme Judicial Court has not "considered whether art. 12 prohibits use of a defendant's prearrest silence for impeachment," instead relying on evidentiary principles. Commonwealth v. Gardner, 479 Mass. 764, 768 (2018).

      Indeed, he does not even mention this standard in his brief.

      Abuse of discretion occurs where the judge "made a clear error of judgment in weighing the factors relevant to the decision such that the decision falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

      The jury's finding that the defendant was not guilty of offenses requiring him to be "under the influence" of alcohol did not preclude them from considering the defendant's consumption of alcohol prior to driving. Commonwealth v. Ross, 92 Mass. App. Ct. 377, 380 (2017), citing Commonwealth v. Robicheau, 421 Mass. 176, 177, 181 (1995).


text:
    Carrie Anne BORERI v. Kevin BORERI.
    17-P-1288
    Appeals Court of Massachusetts.
    Entered: October 24, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   This appeal follows a Probate and Family Court judgment dismissing with prejudice Kevin Boreri's (Boreri) pro se contempt complaint, filed on January 17, 2017, against Carrie Anne Boreri, also known as Carrie A. Milardo (Milardo), based on his allegation that she "may have grossly understated" her income in financial submissions, both pre- and post-divorce. We affirm.

Background. Boreri and Milardo were granted a divorce in 2002. On January 17, 2017, Boreri filed a complaint for contempt against Milardo. Boreri's complaint requested that Milardo be found in contempt for submitting fraudulent financial statements. Milardo filed a motion to dismiss pursuant to Mass. R. Dom. Rel. P. 12 (b) (6) and 9 (b). At the hearing on Milardo's motion to dismiss, conducted before a judge of the Probate and Family Court, Milardo argued that Boreri's complaint for contempt must be dismissed as he had not alleged disobedience by Milardo of a clear and unequivocal command of the court. The hearing judge determined that Boreri's allegations were in the nature of fraud or misrepresentation, not civil contempt. The judge found that the complaint for contempt was "not the proper vehicle to allege" fraud and dismissed Boreri's complaint with prejudice. Boreri appeals.

Discussion. "We review the allowance of a motion to dismiss de novo," Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011), accepting as true "the factual allegations in the plaintiff['s] complaint, as well as any favorable inferences reasonably drawn from them." Ginther v. Commissioner of Ins., 427 Mass. 319, 322 (1998). "What is required at the pleading stage are factual 'allegations plausibly suggesting (not merely consistent with)' an entitlement to relief." Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007).

"Civil contempt is a means of securing for the aggrieved party the benefit of the court's order." Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 565 (1997). "It can be used as an enforcement mechanism only if the underlying order is sufficiently clear, so that the party to be bound is provided with adequate notice of the required or prohibited activity." Id. at 565-566.

Here, it was proper to dismiss the underlying contempt complaint as it failed to state a claim for contempt. See Whelan v. Frisbee, 29 Mass. App. Ct. 76, 82 (1990). Additionally, we find no merit in Boreri's contention that the judge denied him an opportunity to contest the motion to dismiss. The record before us belies that contention. Boreri submitted a written opposition and was afforded an opportunity at the motion hearing to advance an argument why the complaint should not be dismissed.

Finally, Milardo has requested appellate attorney's fees, and we conclude that on this record an award of such fees is appropriate. Milardo may submit a petition for attorney's fees, along with the necessary supporting materials, within fourteen days of the date of the rescript. See Fabre v. Walton, 441 Mass. 9, 10-11 (2004). Boreri may have fourteen days thereafter to file his response. See id.

Judgment dated March 21, 2017, affirmed.


text:
    Kristen MARSHALL v. Douglas S. MARSHALL.
    17-P-745
    Appeals Court of Massachusetts.
    Entered: October 23, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Douglas S. Marshall (husband), the former husband of Kristen Marshall (wife), appeals from an amended judgment of divorce nisi (amended judgment), entered by the Probate and Family Court on June 24, 2015, principally challenging (a) the amount of the base alimony award, (b) the imposition of an additional, contingent alimony award tied to the husband's bonus income, and (c) the division of assets. We vacate the base and contingent alimony awards, and remand for further proceedings consistent with this memorandum and order. We affirm the remainder of the amended judgment.

Background. The parties were married in Pennsylvania on July 20, 1996. Two days prior to their wedding, the parties entered into an antenuptial agreement (agreement), governed by Pennsylvania law, designating which property would be subject to equitable distribution in the event of a divorce. The agreement provides, in relevant part, that (1) the parties' property rights would be determined as of the date of their physical separation; (2) each party would retain their "separate property" as defined in the agreement; and (3) any property not designated as "separate property" would be deemed "marital property" subject to equitable distribution. Included within the scope of "marital property" was any real property held by the parties as tenants by the entirety, and the agreement required the parties to hold title to their "primary residence" as tenants by the entirety "unless [they] specifically waive[d] such requirement." "Separate property" was defined in the agreement as "all business assets referred to in Sections 3 and 4 hereof, including appreciation and income therefrom." The parties expressly acknowledged that, "except for the provisions of [the] agreement," any appreciation in the "separate property" listed in Sections 3 and 4 would ordinarily constitute marital property subject to equitable distribution. The "separate property" described in Sections 3 and 4 was limited to the parties' interests in their respective family businesses, and any property received through a family trust or inheritance. However, additional "separate property" was listed on two schedules (Schedules A and B) attached to the agreement, including the husband's Canadian Registered Retirement Savings Plans (RRSP) and a Mcdermid Saint Lawrence (Mcdermid) account containing approximately $108,000 USD ($135,000 CDN).

On November 1, 2008, the parties separated and the husband moved out of 33 Ashton Avenue, the marital home. In May of 2013, the wife filed a complaint for divorce seeking alimony, child support, and an equitable distribution of the marital estate consistent with the parties' agreement. During the pendency of the divorce proceedings, the husband was ordered to pay temporary child support of $965 per week, base alimony of $1,355 per week, and additional unallocated support equivalent to thirty-three per cent of his bonuses, if and when received. On May 19, 2015, following a four-day trial, the judge issued a judgment of divorce nisi (judgment), along with extensive findings of fact spanning forty-five pages and containing 331 separate numbered findings. Finding the agreement to be valid and enforceable, the judge concluded that the parties' property rights would be determined as of November 1, 2008, the date of their physical separation, and any property acquired after 2008 would be deemed "separate property." The judgment provided, in relevant part, that (1) the parties would share equally in the $922,000 equity value of the marital home (33 Ashton Avenue); and (2) the husband would receive, as his separate property, the $443,634 rolled into the TD Ameritrade account from his Mcdermid account, the full equity value of his new home (173 Crafts Street), and the full value of his Canadian RRSP accounts. The judgment also required (1) the husband to pay child support of $965 per week, base alimony of $1,355 per week, and additional alimony equivalent to thirty-three per cent of any cash bonuses; (2) the parties to share equally in the children's extracurricular expenses, and (3) the wife to pay for the children's childcare expenses, her own health and dental insurance coverage, and to maintain a $250,000 life insurance policy naming the husband as beneficiary thereof until the children's emancipation.

The wife filed a timely motion to amend the judgment, asserting that the base alimony award did not meet her increased postdivorce expenses, and that certain aspects of the property division conflicted with the agreement and the judge's own findings. The judge apparently agreed, allowing much of the wife's motion and issuing an amended judgment of divorce nisi (amended judgment) on June 12, 2015. The amended judgment departed from the original judgment by (1) assigning the entire $922,000 equity in 33 Ashton Avenue to the wife as her "separate property" (rather than dividing it equally between the parties); (2) assigning the wife $84,312 as her share of the equity in 173 Crafts Street (which had previously been assigned solely to the husband); (3) assigning only $108,000 (rather than $443,634) of the TD Ameritrade account to the husband as his separate property; (4) assigning the wife $27,121 as her share of the "growth" in the husband's RRSP accounts (which had previously been assigned solely to the husband); (5) requiring the husband to reimburse the wife in the amount of $100,000 for her "separate property" used to purchase the husband's partnership shares in the now-defunct Monitor Group; and (6) increasing the base alimony award from $1,355 to $1,680 per week. The judge did not issue any additional or amended findings in support of the amended judgment. The present appeal by the husband followed.

Discussion. The husband claims error with respect to (1) the base and contingent alimony awards, and (2) the various amendments to the property division. We address the husband's arguments in turn.

1. Alimony. The husband argues that it was an abuse of discretion for the judge to increase the base alimony award to $1,680 per week, and to make an additional, contingent alimony award tied to the husband's bonus income.

Alimony is governed by the Alimony Reform Act (the act), G. L. c. 208, §§ 48 - 55. " 'A judge has broad discretion when awarding alimony under the statute,' but the act establishes presumptive parameters: the amount of general term alimony 'should generally not exceed the recipient's need or [thirty] to [thirty-five] per cent of the difference between the parties' gross incomes established at the time of the order being issued.' " Young v. Young, 478 Mass. 1, 5-6 (2017), quoting Zaleski v. Zaleski, 469 Mass. 230, 235 (2014), and G. L. c. 208, § 53 (b ). "[W]here the supporting spouse has the ability to pay, 'the recipient spouse's need for support is generally the amount needed to allow that spouse to maintain the lifestyle he or she enjoyed prior to termination of the marriage.' " Young, supra at 6, quoting Pierce v. Pierce, 455 Mass. 286, 296 (2009).

Here, the judge found the parties enjoyed an "upper-middle class" lifestyle during the marriage, though they were "conservative" with their money, usually investing it instead of spending it on luxuries. The judge found the wife's claimed expenses of $2,719 per week to be "overstated," and concluded that the wife's needs could largely be met with the same amount of weekly child support ($965) and base alimony ($1,355) that she had been receiving under the temporary order. The judge further found that any shortfall would be covered once the wife started working, despite that she had not worked since the birth of the parties' first child in 2000. In her motion to amend, the wife argued, among other things, that the judge failed to take into consideration her increased expenses resulting from the financial obligations imposed on her by the divorce judgment. The judge apparently agreed, increasing the weekly base alimony amount to $1,680 in the amended judgment. The husband claims this increased amount is an abuse of discretion as it exceeds the wife's need. We disagree.

"[B]oth the act and the case law interpret 'need' in terms of the marital lifestyle the parties enjoyed during the marriage, as established by the judge at the time of the order being issued, in this case, the judgment of divorce." Young, 478 Mass. at 6-7. Here, both parties were living relatively commensurate lifestyles at the time of the divorce, as reflected in their similar household spending. See M.C. v. T.K., 463 Mass. 226, 234 n.11 (2012) ("standard of living ... may be closely linked to household spending"). There is no question that the husband has the ability to pay the increased amount of $1,680 per week, as his total weekly expenditures (including all support obligations) amount to $5,546, and he earns a weekly gross income of $9,394 (excluding bonuses). Accordingly, we cannot say the base alimony award of $1,680 per week is excessive or an abuse of discretion.

However, we conclude that the contingent alimony award tied to the husband's bonus income must be vacated in light of Young, supra. In Young, a case that was decided after the issuance of the amended judgment, the Supreme Judicial Court opined that "[t]here may be cases in which a variable or contingent [alimony] award is warranted, but such cases are the exception rather than the rule, and must be justified by the special circumstances of the case." Id. at 9. The judge's findings do not reflect any of the "special circumstances" justifying a contingent award, "such as where the supporting spouse's income is highly variable from year to year, sometimes severely limiting his or her ability to pay, and where a percentage formula, averaged over time, is likely not to exceed the needs of the recipient spouse."Id. at 10. Moreover, because the judge did not have the benefit of Young's guidance, it is unclear the extent to which the contingent bonus alimony award may have factored into the judge's calculation of the base alimony award. Accordingly, we vacate both the base and contingent alimony awards, and remand for reconsideration in light of Young. Though we are remanding both alimony awards due to their intertwined nature, we emphasize that the base amount of $1,650 has been affirmed. If the judge on remand determines that additional alimony above $1,680 per week is warranted, but does not find any "special circumstances" justifying a "variable or contingent" award under Young, the judge may, in his or her discretion, increase the base alimony award in an amount commensurate with the wife's need and the husband's ability to pay.

2. Property division. The husband argues that the amended property division is inconsistent with both the judge's findings and the parties' agreement, specifically contesting the disposition of (a) 33 Ashton Avenue, (b) 173 Crafts Street, (c) the appreciation of his separate property held in the TD Ameritrade and RRSP accounts, and (d) the wife's Monitor Group investment.

a. 33 Ashton Avenue. The husband claims it was error to assign the full equity of 33 Ashton Avenue to the wife as her separate property, as that particular asset was designated marital property under the agreement. The agreement provides, in relevant part, that any real property held as tenants by the entirety would be deemed marital property, and requires that the parties hold title to their "primary residence" as tenants by the entirety "unless [they] specifically waive[d] such requirement." The judge found that 33 Ashton Avenue "would have been marital property as defined by the parties' [a]greement"; however, the parties had executed a "valid," albeit unrecorded, deed transferring title to the wife individually in 2012. The judge found the husband had "signed over all of the equity in [33 Ashton Avenue] to the [w]ife," effectively converting that asset into the wife's separate property. The husband contends the transfer was not valid because the deed was never recorded, and the agreement does not authorize the conversion of marital property to separate property. We disagree.

While the agreement is silent regarding the conversion of marital property into separate property, the agreement does expressly allow the parties to waive the requirement that title to their primary residence be held as tenants by the entirety. Moreover, the agreement permits the modification or waiver of its provisions with a written instrument signed by both parties. It was therefore appropriate to treat the deed, signed by both parties, as a valid modification or waiver of the agreement's provisions requiring that the parties' "primary residence" be held as tenants by the entirety and deemed marital property. This conversion of 33 Ashton Avenue from marital property to the wife's separate property was also consistent with the spirit of the agreement -- to preserve the parties' respective premarital and family assets -- as the judge found the marital home was purchased entirely with funds furnished by the wife and her mother. See Merrimack College v. KPMG LLP, 88 Mass. App. Ct. 803, 805 (2016), quoting Sullivan v. Southland Life Ins. Co., 67 Mass. App. Ct. 439, 442 (2006) ("The objective is to construe the contract as a whole, in a reasonable and practical way, consistent with its language, background, and purpose"). Accordingly, we discern no error in assigning the full equity of 33 Ashton Avenue to the wife as her separate property.

b. 173 Crafts Street. The husband contends it was error to reimburse the wife for her "share" of the equity in 173 Crafts Street, as the judge found that any property acquired after 2008 constituted separate property. We disagree. While the judge found 173 Crafts Street, which was purchased in 2009, to be the husband's separate property, she also found that the $150,000 down payment was comprised of "marital funds" withdrawn from the TD Ameritrade account held in the wife's name. There is no indication, either in the judge's findings or in the record, that the wife effectively waived her right to share in the marital property used by the husband to purchase 173 Crafts Street. Accordingly, we discern no error in the amended property division as it pertains to 173 Crafts Street.

c. Appreciation of the husband's separate property. The husband claims the judge erroneously treated the appreciation of his separate property (held in the TD Ameritrade and RRSP accounts) as marital property, in contravention of the parties' agreement. We disagree.

As found by the judge, the agreement provided that any appreciation during the marriage of the separate property described in Sections 3 and 4 would constitute separate property, rather than marital property. In the initial judgment, the judge assigned to the husband, as his separate property, the appreciation in (a) his Canadian RRSP accounts, and (b) the funds originally held in his Canadian Mcdermid account (later transferred to the parties' TD Ameritrade account). In her motion to amend, the wife argued that this was error because the husband's RRSP and Mcdermid accounts were not part of the separate property specifically described in Sections 3 and 4 of the agreement, thus any appreciation of those assets during the marriage constituted marital property. The judge apparently agreed, as the amended judgment treated the appreciation of the Mcdermid and RRSP accounts as marital property, and divided such appreciation equally between the parties.

In allowing the wife's motion to amend, the judge implicitly adopted her interpretation of the agreement that only the appreciation of assets specifically listed in Sections 3 and 4 of the agreement constituted separate property. Our reading of the agreement is consistent with this interpretation. See Colorio v. Marx, 72 Mass. App. Ct. 382, 386 (2008) (contract interpretation is question of law "afforded plenary review"). The agreement's language carves out an exception to the general rule under Pennsylvania law that any appreciation of assets (both separate and marital) during the marriage shall constitute marital property subject to equitable distribution. See 23 Pa. Cons. Stat. § 3501 (definition of marital property includes "the increase in value of any nonmarital property"). The agreement plainly states that this exception applies to the separate property specifically described in Sections 3 and 4 of the agreement. The husband's Mcdermid and RRSP accounts, while constituting separate property under the agreement, were not part of the assets specifically described in Sections 3 and 4. While the judge's findings certainly could have been clearer on this point, she was nevertheless correct in treating the appreciation of those accounts as marital property, as they were not specifically included in the exception carved out by the agreement. See Kobico, Inc. v. Pipe, 44 Mass. App. Ct. 103, 108 (1997), citing Restatement (Second) of Contracts § 203(c) (1981) (specific and exact terms in contract given greater weight than general language). Accordingly, we discern no error in the amended property division as it relates to the RRSP and TD Ameritrade accounts.

d. Monitor Group investment. The husband argues it was error to require him to reimburse the wife for the $100,000 investment of her separate property in the now-defunct Monitor Group. We disagree.

The judge found that, during the marriage, the husband purchased partnership shares in Monitor Group using $100,000 of the wife's "separate property." Despite finding that the wife was entitled to the reimbursement of those funds, the judge failed to address the $100,000 investment in the initial judgment. However, the amended judgment corrected this omission, requiring the husband to reimburse the wife for $100,000 of her separate property invested in Monitor Group on his behalf. The husband contends it was error to reimburse the wife for what was essentially a poor investment, as his partnership shares had been "wiped out" by the time of the divorce due to Monitor Group declaring bankruptcy in 2012. However, as of November 1, 2008, the date for determining the parties' property rights under the agreement, the husband's partnership shares in Monitor Group were still in existence. As the judge correctly found, the wife never executed an instrument converting the $100,000 investment into marital property, as provided for in the agreement, thus the $100,000 remained the wife's separate property at the time of the parties' separation in 2008. Accordingly, it was not error to order reimbursement of that amount to the wife in the amended judgment.

Conclusion. The portions of the amended judgment requiring the husband to pay weekly alimony of $1,680 and additional alimony equivalent to thirty-three per cent of his bonus income are vacated and remanded for further proceedings consistent with this memorandum and order. The husband shall pay temporary alimony to the wife of $1,680 per week during the pendency of the remand. The remainder of the amended judgment is affirmed. The wife's request for appellate attorney's fees and costs is denied.

So ordered.

Affirmed in part; vacated in part and remanded.

      The agreement did carve out one exception, providing that any "income and appreciation from the investment of the proceeds received from the disposition of separate property" would be deemed marital property. However, the proceeds themselves would remain separate property.

      As described in Section 3, the wife's "separate property" consisted of (1) all interests in Burgoyne, Inc., including "all income and profits from such property (other than income and profits derived from the reinvestment of such property ...)"; (2) any real property associated with Burgoyne, Inc.; (3) all property of any trust established by a member of the wife's family; and (4) any other property acquired by inheritance, except for "any income, rents and profits from such property, and any increase in value therein subsequent to the date of acquisition." As described in Section 4, the husband's "separate property" consisted of (1) all interests in Nextest, Inc., including "all income and profits from such property (other than income and profits derived from the reinvestment of such property ...)"; (2) any real property associated with Nextest, Inc.; (3) all property of any trust established by a member of the husband's family; and (4) any other property acquired by inheritance, except for "any income, rents and profits from such property, and any increase in value therein subsequent to the date of acquisition."

      Neither party challenged the validity of the antenuptial agreement at the trial.

      This amount represented the equity remaining after deducting the $178,000 mortgage gifted to the wife by her mother, which the judge found to be the wife's separate property.

      The husband claimed in his brief that the wife's motion to alter or amend was untimely; however, the husband later waived that issue at oral argument, having conceded the motion was indeed timely.

      The judge allowed the wife's motion to alter or amend on June 12, 2015. The husband subsequently filed a motion to vacate the judge's June 12 ruling, which was denied on July 28, 2015.

      "[A] judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made 'a clear error of judgment in weighing' the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014), quoting Picciotto v. Continental Cas. Co., 512 F.3d 9, 15 (1st Cir. 2008).

      The judge's skepticism toward the wife's claimed expenses appeared to be largely driven by the fact that, during the pendency of the divorce proceedings, the temporary child support and base alimony awards totaling $2,320 left the wife with a "weekly deficit" of $399, which the judge found "mathematically impossible" for the wife to maintain while "simultaneously increasing her assets and incurring no debt" during the same period. However, the "deficit" was almost entirely covered by the additional support of $385 per week that the wife received from the husband's bonus income.

      The wife obtained a Master's Degree in Social Work from Boston University in May of 2014, but had not yet undergone the licensing exam at the time of the trial. The wife testified that she hoped to eventually earn $50,000 annually; however, the judge noted that the wife had never earned that much. The judge nevertheless found the wife capable of working and found her capable of meeting the shortfall even with an annual income of $25,000.

      These additional expenses included, but were not limited to, health and dental insurance coverage for herself, along with life insurance coverage.

      However, the husband's reported expenses of $2,901 per week (excluding support obligations) are slightly higher than those claimed by the wife. See Goldman v. Goldman, 28 Mass. App. Ct. 603, 611 (1990) ("Absent good reason, in a long term marriage, there is no justification for the life-style of one spouse to go down while the other remains high").

      We do not suggest that additional alimony is warranted.

      The agreement provides that "[n]o modification or waiver of any of the terms hereof shall be valid unless in writing and signed by both parties ...."

      The judge found that 33 Ashton Avenue was purchased with a combination of $449,000 from the wife's personal accounts, and a $300,000 mortgage from the wife's mother. "The [w]ife's mother made a series of gifts over the years, reducing the principal on the mortgage from $300,000 to $178,000." The wife's mother then forgave the remaining balance; the judge found that the wife acquired, by gift from her mother, the $178,000 mortgage on 33 Ashton Avenue, which constituted her "separate property."

      There was an outstanding mortgage on 173 Crafts Street of approximately $415,752 as of January, 2015; the appraised value was $625,000 as of June, 2014. The initial judgment awarded the husband the entire equity in 173 Crafts Street as his separate property. The wife argued in her motion to amend that the husband was only entitled to retain as his separate property the equity gained from his mortgage payments ($40,623), and that the remaining equity ($168,625) constituted marital property subject to equitable division. The amended judgment required the husband to pay the wife approximately $84,312 for her "share of the equity" in 173 Crafts Street.

      The relevant language provides that "except for the provisions of this agreement, any increase in value or income from [the] separate property as described in paragraphs A, B, C and D of [Sections 3 and 4] after the marriage is entered into would be marital property ... but that by the provisions of this agreement any such increase in value or income is made ... separate property."

      The amended judgment assigned only $108,000 USD (approximately $135,000 CDN) of the TD Ameritrade account to the husband as his separate property, which represented the original balance of the husband's Mcdermid account at the time of the marriage. The balance of the TD Ameritrade account, after deducting the wife's separate property, was divided equally between the parties, as was the appreciation in the husband's RRSP accounts.

      They were instead listed on Schedule B, which contained additional "separate property" not included in Sections 3 and 4.

      The husband testified that "all of the investments in Monitor, all of the preferred shares have been wiped out, as have all the common equity."

      Indeed, the husband testified that Monitor Group's assets, including the husband's shares in the company, still existed in 2008 at the time of the separation. While he claimed that his Monitor Group investment was worth little by that time due to the company's financial difficulties, he admitted that he was still receiving interest on his investment in 2008.

      To the extent that we do not address the husband's other contentions, they "have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).


text:
    WEBSTER BANK, N.A. v. Christine HILTON.
    17-P-913
    Appeals Court of Massachusetts.
    Entered: October 23, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Webster Bank, N.A. (bank) foreclosed on Christine Hilton's property, she refused to vacate, and on April 12, 2017, a judgment of possession entered for the bank. She appeals, raising a host of alleged errors with respect to the April 12 judgment, as well as alleged errors as to several postjudgment motions. We conclude that Hilton did not timely notice an appeal from the April 12 judgment or the denial of her Mass. R. Civ. P. 59 motion, but did timely appeal from the denial of her Mass. R. Civ. P. 60(b) motion. After consideration of the issues properly before us, we affirm.

Discussion. 1. The timeliness of the notices of appeal. As indicated, judgment entered on April 12, 2017. Hilton timely served a rule 59(e) motion on April 21, 2017, which the judge denied on May 12, 2017. Hilton did not then notice an appeal. Instead, on May 22 Hilton filed a rule 60(b) motion to vacate the judgment. The judge denied Hilton's rule 60(b) motion on June 2. Hilton then, on June 9, filed a notice of appeal, which purported to appeal from the April 12, 2017, judgment, the May 12, 2017, order denying the rule 59(e) motion, and the June 2, 2017, order denying the rule 60(b) motion. On June 27, the judge determined that the notice of appeal was untimely.

Hilton's June 9 notice of appeal was untimely as to both the April 12 judgment and the May 12 order denying her rule 59(e) motion, but it was not untimely as to the June 2 order denying the rule 60(b) motion. By statute, Hilton needed to file a notice of appeal within ten days of the April 12 judgment, unless the appeal period was tolled by the timely filing of a motion for postjudgment relief, as set forth in Mass. R. A. P. 4, as amended, 430 Mass. 1603 (1999). See G. L. c. 239, § 5 (a ) ; Jones v. Manns, 33 Mass. App. Ct. 485, 488-489 (1992) ("The statute is not unclear: the ten-day period for appeal ... is fixed by statute and is jurisdictional"). Here Hilton's timely filed rule 59(e) motion tolled the running of the time for filing the notice of appeal until the rule 59(e) motion was denied on May 12, 2017. Hilton did not file her notice of appeal within ten days of the May 12 denial, however. Moreover, the rule 60(b) motion filed on May 22, 2017, did not further toll the running of the appeal period as to the judgment, because the rule 60(b) motion was not filed within ten days of the entry of judgment, as required by Mass. R. A. P. 4 (a) (4). Accordingly, the judge was correct in dismissing Hilton's purported appeals from the judgment and rule 59(e) order.

Hilton's appeal from the denial of her rule 60(b) motion stands on different footing. Hilton's June 9 notice of appeal also specified that it was from the June 2 order denying her rule 60(b) motion. As to that order Hilton's notice of appeal was timely, being filed within ten days of that order's entry. Accordingly, Hilton's appeal from the order denying her rule 60(b) motion should not have been deemed untimely. See Muir v. Hall, 37 Mass. App. Ct. 38, 40 (1994).

2. Rule 60(b) motion. In her rule 60(b) motion Hilton argued, in effect, that purportedly newly discovered evidence -- public record documents filed in an earlier Land Court proceeding between the parties -- showed that the right to cure letter sent to Hilton before the bank foreclosed was inadequate and that, therefore, the bank's foreclosure was void. The judge denied Hilton's motion, essentially on the grounds that (i) Hilton's newly submitted documents were available to Hilton before judgment entered and, therefore, the documents did not constitute "newly discovered evidence"; (ii) Hilton did not adequately explain why she could not have produced this evidence, or raised her argument, before judgment entered; and (iii) even considering Hilton's additional documents "there remains no dispute that Plaintiff served the Notice prior to the commencement of the foreclosure and therefore met its burden pursuant to ¶ 22 of the Mortgage."

Because Hilton did not timely appeal the underlying judgment, Muir, 37 Mass. App. Ct. at 40, the only question properly before us is whether the judge abused her discretion by denying Hilton's rule 60(b) motion. See Berube v. McKesson Wine & Spirits Co., 7 Mass. App. Ct. 426, 433-435 (1979). For substantially the reasons identified by the judge, Hilton has not shown any abuse of discretion. The fundamental basis of Hilton's argument is that the notices she received in connection with the foreclosure were legally inadequate. Hilton did not persuasively show why the documents she was relying on for her rule 60(b) motion could not have been provided during the summary judgment process. Hilton's argument of "newly discovered evidence" is unavailing.

3. Stay of execution. Finally, we observe that on August 4, 2017, Hilton filed a pleading that a single justice of this court construed as a notice of appeal from an August 2, 2017, order staying execution on the condition that Hilton pay specified use and occupancy fees. The single justice then consolidated that appeal with the present matter "without the need for further assembly of the record." A judge has broad discretion to issue a stay of execution in summary process proceedings on such terms "as the court may deem just and reasonable." G. L. c. 239, § 9. In part because Hilton did not perfect an appeal from the summary process judgment and she could have had no reasonable expectation that the order on her rule 60(b) motion would be reversed, the judge did not abuse her discretion by granting a conditional stay of execution. See id.; Spence v. Reeder, 382 Mass. 398, 422 (1981).

So much of the June 27, 2017, order as deemed untimely Hilton's notice of appeal from the order denying her rule 60(b) motion is vacated. In all other respects, the June 27, 2017, order is affirmed. The June 2, 2017, order denying Hilton's rule 60(b) motion is affirmed. The August 2, 2017, order granting a conditional stay of execution is affirmed.

So ordered.

Vacated in part; affirmed in part.

      365 Mass. 827 (1974).

      365 Mass. 828 (1974).

      Hilton also sought relief from a single justice of this court from so much of the June 27 order as denied her motion to waive the appeal bond. See G. L. c. 239, § 5 (f ). The single justice denied Hilton's petition on August 7. Hilton did not notice an appeal from the single justice's decision and the question is not before us.

      See also Reporter's Notes to Rule 4, Massachusetts Rules of Court, Rules of Appellate Procedure, at 231 (Thomson Reuters 2018) ("This amendment is not intended to provide a litigant with multiple opportunities to extend the time period to claim an appeal. Assume that the defendant serves a motion for relief from judgment within ten days of entry of judgment, thereby staying the time period to claim an appeal from judgment. Two months later, the judge enters an order denying the motion for relief. Entry of that order starts the clock running to file a notice of appeal. If the defendant moves for reconsideration of the order denying relief from judgment, the motion for reconsideration should have no effect on the time period to claim appeal from the original judgment").

      See also Piedra v. Mercy Hosp., Inc., 39 Mass. App. Ct. 184, 188 (1995) (motion to vacate judgment "cannot be used as a substitute for the regular appeal procedure"); Charles Choate Memorial Hosp. v. Commissioner of Pub. Welfare, 13 Mass. App. Ct. 1080, 1081 (1982) ("In all but exceptional circumstances, the failure to prosecute an appeal from the original judgment will bar relief" [quotation omitted] ).


text:
    COMMONWEALTH v. Alexander E. HERNANDEZ.
    17-P-931
    Appeals Court of Massachusetts.
    Entered: October 23, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury-waived trial, a judge convicted the defendant, Alexander E. Hernandez, of operating a motor vehicle after suspension of his license, G. L. c. 90, § 23. On appeal, he contends that (1) admission of Registry of Motor Vehicles (RMV) records violated the confrontation clause of the Sixth Amendment to the United States Constitution; (2) the notice of license suspension printed only in the English language violates his due process and equal protection guarantees under the Federal and State Constitutions because he speaks only Spanish; (3) the notice violates 28 C.F.R. § 42.104 (2017) ; and (4) the Commonwealth presented insufficient evidence to support his conviction. We affirm.

Discussion. 1. RMV records and the confrontation clause. The defendant raises confrontation clause challenges to the admission of the following documents: (1) an "RMV Certificate," (to which he also raises a separate hearsay challenge); (2) the suspension notices; (3) the "USPS Confirmations," and (4) a "Non-Reinstatement Certificate," stating that the defendant's license was not reinstated. We are not persuaded.

The confrontation clause only bars "testimonial" hearsay -- "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Crawford v. Washington, 541 U.S. 36, 52 (2004). It is in this legal context that we address the defendant's challenges to the documentary proof.

The RMV certificate, which is "a clerk's affidavit authenticating an official record[,] is not testimonial for purposes of the confrontation clause," Commonwealth v. McMullin, 76 Mass. App. Ct. 904, 904 (2010), and properly was admitted. Likewise, the suspension notices, which are prepared pursuant to G. L. c. 90, § 22, to apprise operators of the RMV's actions and the operator's rights following a suspension, are not testimonial. The USPS confirmations were properly admitted business records, see Commonwealth v. Ellis, 79 Mass. App. Ct. 330, 335 (2011), produced for internal use contemporaneously with the suspension notices, and have only an ancillary purpose of possible use at a future trial. Commonwealth v. McEvoy, 93 Mass. App. Ct. 308, 316 (2018). Therefore, their admission also did not violate the confrontation clause.

Finally, the admission of the nonreinstatement certificate, which the Commonwealth concedes is testimonial, was harmless beyond a reasonable doubt. Ellis, 79 Mass. App. Ct. at 334-335. Here, the Commonwealth presented sufficient additional evidence of the defendant's license suspension beyond the nonreinstatement certificate. The RMV records showed that the defendant's license was suspended at the time of his arrest, as did the certified copy of the criminal docket sheet of his conviction of operating while under the influence. In further support of an inference of license suspension, the defendant admitted to the arresting officer that he did not have a license. Id.

2. Due process. We find similarly unavailing the defendant's claim that the RMV's use of an English language suspension notice violates due process. An English language notice is constitutionally sufficient for non-English language speakers when:

"(1) it would put a reasonable person on notice that inquiry is required, (2) further inquiry would reveal the facts necessary to understand the nature of the proceeding and the opportunity to be heard, and (3) the party's disability does not render him incapable of understanding the need for such inquiry."

Commonwealth v. Olivo, 369 Mass. 62, 69 (1975).

The suspension notice employed here provided such inquiry notice. See DaLomba v. Director of the Div. of Employment Sec., 369 Mass. 92, 98 (1975) (receipt of official correspondence puts reasonable recipient on notice that it must be translated if they cannot comprehend it). It was official correspondence from the RMV, and would alert any reasonable person to the need for further inquiry. Id.

3. Equal protection. Pursuant to the holding in Olivo, supra at 72-73, we also summarily dispense with the defendant's contention that the English language notice of his license suspension violated his equal protection guarantees. In Olivo, the Supreme Judicial Court made clear that the use of English notices, even with those who do not read English, does not violate either the State or Federal guarantee of equal protection. Id.

4. 28 C.F.R. § 42.104 (2017). The defendant contends for the first time on appeal, and without any documentary support, that the use of English language notices violates 28 C.F.R. § 42.104 (2017), which prohibits any discrimination based on "race, color, or national origin" in Federally funded programs. The defendant did not raise this argument in the trial court and offers no support for it here. Therefore, we deem it waived. Commonwealth v. Obi, 475 Mass. 541, 549 (2016). In any event, we are not aware of any authority suggesting that the RMV violated 28 C.F.R. § 42.104 (2017), or that a violation must result in the reversal of a criminal conviction. Cf. Alexander v. Sandoval, 532 U.S. 275, 285 (2001) (regulation does not afford private right of action to challenge English-only public program on disparate impact theory of discrimination).

5. Sufficiency. "To review a claim of sufficiency of the evidence we ask whether, 'after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " Commonwealth v. Mauricio, 477 Mass. 588, 597 (2017), quoting Commonwealth v. St. Hilaire, 470 Mass. 338, 343 (2015). The elements of a § 23 violation are (1) the defendant operated a motor vehicle, (2) while his or her license was suspended, and (3) that the defendant received notice that his or her license had been suspended or revoked. Commonwealth v. Royal, 89 Mass. App. Ct. 168, 170 (2016). Here, the defendant challenges the sufficiency of proof as to the third element on three grounds.

First, the defendant claims that he never received the notice. This argument fails. The Commonwealth need not prove actual receipt but, rather, pursuant to G. L. c. 90, § 22 (d ), the Commonwealth need only show "that the registry properly mailed the notice of suspension or revocation, which constitutes 'prima facie evidence of receipt by the addressee.' " Commonwealth v. Parenteau, 460 Mass. 1, 6 (2011), quoting Commonwealth v. Koney, 421 Mass. 295, 303-304 (1995). The Commonwealth submitted numerous RMV documents indicating both that the defendant's license was suspended and that the RMV had mailed notices of the suspension to his address. This evidence was sufficient. Id.

Second, the defendant asserts that because the RMV documents were inadmissible, the Commonwealth failed to prove that he received notice. This claim also fails because, in addition to already concluding that these documents were properly admitted, we consider, "[i]n determining the sufficiency of the evidence ... 'the evidence in its entirety, including, not excluding, that admitted [at] trial but found inadmissible on appeal.' " Mauricio, supra, quoting Commonwealth v. DiBenedetto, 414 Mass. 37, 46 (1992).

Third, the defendant claims that, even if he received the notice, it was insufficient because he only reads Spanish. We reiterate the words of the Supreme Judicial Court: "[o]fficial communications in the English language are reasonable and are sufficient to constitute effective notice." DaLomba, 369 Mass. at 96 (discussing notice requirement under G. L. c. 151A, § 39 ).

Judgment affirmed.

      The Commonwealth also charged the defendant with a civil marked lanes violation. The judge found the defendant not responsible on that charge.

      Which authenticates the RMV records.

      Which document the mailing of the notices.

      See Commonwealth v. Grady, 474 Mass. 715, 719 (2016) (motion in limine to exclude evidence preserves argument).

      The certificate states: "I further certify in accordance with G. L. [c. 90, § 23 ], that there has since been no reinstatement of [the defendant's] license or right to operate motor vehicles in the Commonwealth of Massachusetts."

      While the criminal docket sheet is insufficient to prove notice of the suspension, it is competent to prove the fact of the suspension. See Commonwealth v. Oyewole, 470 Mass. 1015, 1016 & n.1 (2014).


text:
    COMMONWEALTH v. Michael M. KARANJA.
    17-P-1120
    Appeals Court of Massachusetts.
    Entered: October 23, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury trial in the District Court, the defendant, Michael M. Karanja, was convicted of operating under the influence of intoxicating liquor (OUI) third offense, OUI while his license was suspended for OUI ("OUI while OAS for OUI"), and leaving the scene of property damage. On appeal, he contends that the judge abused her discretion by refusing to bifurcate the OUI while OAS for OUI count from the OUI count. We affirm.

Background. On August 2, 2016, at approximately 8:30 P.M. , the defendant crashed the white Toyota Corolla automobile he was driving into the rear of a parked Honda Civic on Barker Avenue in Lowell. The crash caused extensive damage to the parked Civic, which "was totaled." A neighborhood resident, Sean Cailler, heard the sound of the crash from his nearby home, went outside, and approached the Corolla. Cailler noticed that the Corolla was still running, the defendant was "fishing through" the glove box, and the vehicle smelled of alcohol. Cailler reached inside the Corolla, shut the vehicle off, and told the defendant "he needs to get out of the car." Cailler helped the defendant out of the vehicle and also noted that the defendant had slurred speech. The defendant then ran away from the accident scene. A different neighbor tried to stop him, but the defendant shoved him out of the way. Cailler pursued the defendant, brought him to the ground, and held him until the police arrived.

Officer Brian Rourke arrived at the scene, approached Cailler and the defendant, and asked the defendant if he was okay. The defendant was "very hard to understand." His speech was "slurred," and "[a] lot of his words were almost unrecognizable." Officer Rourke detected a strong odor of alcohol from the defendant. The defendant "had zero balance" and could not stand on his own. Officer Rourke called for EMTs who subsequently transported the defendant to the hospital. There, the defendant "started to become more aggressive," and he was reluctant to receive medical help. His speech and responses were observed to be "[d]elayed" and "sluggish."

While the defendant was being treated by EMTs, Officer Rourke conducted an inventory search of the Corolla. Therein he located two water bottles containing a clear liquid, which "smelled like an alcoholic beverage."

Discussion. Prior to trial, the Commonwealth moved in limine to introduce evidence of the defendant's prior conviction and license suspension. The defendant objected, and asked the judge to try some portion of the OUI while OAS for OUI count with the trial on the OUI third offense count. The judge denied the defendant's request and allowed the Commonwealth's motion. The defendant contends that the judge abused her discretion in denying his request to bifurcate the OUI while OAS for OUI count from the OUI count because (a) it caused the jury to hear highly prejudicial evidence and (b) the judge failed to give "serious consideration" to the request. The Commonwealth responds that the judge acted within her discretion under well-established precedent and properly considered the defendant's request. In addition, the Commonwealth contends that any alleged prejudice was alleviated by the judge's clear and repeated limiting instructions. Under the particular facts of this case, the Commonwealth has the better argument.

Initially, it is black letter law that "the decision to bifurcate is committed to the judge's discretion," Commonwealth v. Lopes, 85 Mass. App. Ct. 341, 349 (2014), and that "bifurcation is not compelled" in cases involving the criminal charges present here. Commonwealth v. Beaulieu, 79 Mass. App. Ct. 100, 102 (2011). Furthermore, the judge provided immediate limiting instructions at trial, which mitigated any risk of prejudice. Moreover, the judge did not merely repeat the limiting instruction in her final jury charge, but she allowed defense counsel to draft his own limiting instruction, which she read to the jury. "The instructions were proper in all aspects and we presume that the jury followed them." Id. at 103.

Contrary to the defendant's claim, the judge also properly considered the defendant's request to bifurcate. First, the defendant's request was unclear. See note 1, supra. Second, the judge provided an opportunity for the defendant to explain the basis of his request, and noted that under "clear" precedent, she had discretion to deny the request. Third, when the defendant later renewed his objection, the judge allowed him to be heard, paused to review case law, cited to Beaulieu, referenced the holding in that case, and explained her basis for denying the request. Viewed in context and under the totality of the circumstances, the judge's approach constituted serious consideration of the defendant's request. See Lopes, 85 Mass. App. Ct. at 349 ("although the decision to bifurcate is committed to the judge's discretion, it is an option worthy of serious consideration").

Judgments affirmed.

      The defendant's request to bifurcate, and the manner in which he proposed to bifurcate the OUI while OAS for OUI count, is unclear. Defense counsel states as follows:
      "What I'm asking you to do just technically is to have the first trial on OUI, OAS, and then I guess the three, four and then the second bifurcated trial would then be if he's convicted for the -- to prove the OUI. Obviously he had the two prior OUIs which would be bifurcated and OAS and also to prove that he had -- so the registered documents would fall into show that he had been suspended for OAS also. Because otherwise, Your Honor, what's happening is this jury is improperly finding out on an OUI one charge that he has a prior suspension for OUI if those documents are let in. So that's why I'm saying OAS -- I'm suggesting OAS second count be tried and then there'd be two prongs in the bifurcation."
      We cannot discern whether defense counsel was asking the judge to conduct two or three separate trials. We also cannot discern whether he was asking to try all or only a portion of the OUI while OAS for OUI count separately from the OUI count.

      We note that the evidence of the defendant's intoxication was strong and corroborated by the liquid in the Corolla that "smelled like an alcoholic beverage," and the motor vehicle crash itself. In addition, the jury could have viewed the defendant's flight from the accident scene as consciousness of guilt evidence. See Commonwealth v. Rojas, 388 Mass. 626, 629 (1983).


text:
    James L. VAN SICKLIN & another v. NANTUCKET SURVEYORS, LLC.
    17-P-1514
    Appeals Court of Massachusetts.
    Entered: October 23, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Amy B. Van Sicklin.

   The plaintiffs, James L. Van Sicklin and Amy B. Van Sicklin, sought damages for breach of contract and negligence against the defendant, Nantucket Surveyors, LLC (NSL), stemming from a failed septic system. A Superior Court judge allowed NSL's motion for summary judgment as to all of the plaintiffs' claims, and subsequently denied the plaintiffs' motion for reconsideration. The plaintiffs now appeal therefrom. For the reasons that follow, we affirm.

Background. We first recite the relevant facts from the summary judgment record, and provide a framework of applicable law. In December, 2009, NSL conducted an inspection and soil investigation at the premises located at 32 Polpis Road, Nantucket, MA (property), which Gary Gregoire and Beth Simonsis (sellers) owned at the time. Gregoire hired NSL to determine soil conditions and to determine if the property's septic system complied with State Sanitary Code Title V (Title V) as required by the Massachusetts board of health. NSL determined that the septic system at the property was not in compliance with Title V and submitted a proposal to Gregoire to design a replacement septic system, conduct an "as-built inspection (open hole and installation)," and file a septic permit application with the Nantucket board of health. Gregoire accepted NSL's proposal and also hired RJ Perry Excavation, LLC (RJ Perry) to perform the excavation and installation of the new septic system.

The plaintiffs and sellers executed an escrow agreement on December 18, 2009, requiring a portion of the purchase price of the property to be held in escrow to pay for the installation, inspection, and certification of the new septic system.

NSL prepared a design plan for the replacement septic system, which explains NSL's obligations as it related to the as-built inspection (open hole and installation) that was referenced in the proposal. The design plan required NSL, in part, to: (1) "inspect the overexcavation prior to fill material and infiltrators being installed"; (2) "inspect and locate the installed system"; and (3) "[a]fter the initial inspection ... call the Nantucket [b]oard of [h]ealth for a final inspection." The design plan also states that "[o]nly after the final inspection is approved by the [b]oard of [h]ealth shall the system components be backfilled" and that "unsuitable soils shall be removed" and replaced with sand. The contract at issue consists of the proposal and the design plan.

The septic system was subsequently installed, and on March 30, 2010, the Nantucket board of health issued a certificate of compliance, indicating the septic system's compliance with Title V. In December, 2014, the septic system failed. The parties agree that "placement of construction and other debris in the leaching fields of the septic system by RJ Perry in violation of applicable regulations and NSL's plan" caused the system to fail.

The plaintiffs filed suit in the Superior Court against NSL and RJ Perry, alleging that NSL was liable for breach of contract and negligence as a result of its failure to inspect RJ Perry's work and ensure that RJ Perry used sand in the leaching fields in accordance with NSL's design. NSL moved for summary judgement and the judge concluded that the contract at issue did not, as a matter of law, require NSL to inspect the fill installed by the contractor and that to establish a duty to inspect under a negligence theory, the plaintiffs needed to present expert evidence, which they did not do. The plaintiffs then filed a motion for reconsideration, which the judge denied. This appeal followed.

Discussion. Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See Federal Nat'l Mtge. Ass'n v. Hendricks, 463 Mass. 635, 637 (2012). See also Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002). We review grants of summary judgment de novo. See Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 474 Mass. 382, 395 (2016). "[W]e view the evidence and draw all reasonable inferences in the light most favorable to the nonmoving party." Premier Capital, LLC v. KMZ, Inc., 464 Mass. 467, 475 (2013).

1. Breach of contract claim. The plaintiffs first contest the judge's determination on summary judgment that NSL did not have a contractual duty to inspect the fill material. They claim that the judge could only reach this conclusion through speculation as the record did not support this interpretation of the as-built inspection requirement. We disagree.

The plain language of the proposal requires NSL to conduct an as-built inspection (open hole and installation). There is nothing in the proposal that requires NSL to inspect the fill materials used to cover the hole. See Citation Ins. Co. v. Gomez, 426 Mass. 379, 381 (1998) (where words of contract are unambiguous, they are construed in their ordinary and usual sense). The plaintiffs respond that the proposal must be read in conjunction with the design plan, which carries with it an inherent duty to inspect the septic system to ensure that it was "as-built" in accordance with the "as-built plans." Although we agree that the design plan was part of the contract, the design plan specifies that NSL was responsible for conducting two inspections. The first occurred, as the design plan required, after RJ Perry excavated the open hole and before the septic system was installed. The second inspection, as the design plan further required, occurred after RJ Perry installed the septic system into the hole. The design plan further provided that "[o]nly after the final inspection is approved by the [b]oard of [h]ealth shall the system components be backfilled." Thus, by its plain terms, the design plan contemplated two inspections by NSL, after which the board of health would conduct a "final inspection," after which RJ Perry was to backfill the completed project. Neither the proposal nor the design plan obligated NSL to conduct a third inspection after the board of health conducted its final inspection and issued its approval. Where, as here, the language of the contract is clear, we cannot add an unstated obligation thereto. See Robbins v. Krock, 73 Mass. App. Ct. 134, 138-139 (2008), quoting Rogaris v. Albert, 431 Mass. 833, 835 (2000) ("the court gives full effect to all the terms expressed by the parties.... It is not the role of the court to alter the parties' agreement").

Alternatively, the plaintiffs point to the first provision in the design notes, found within the design plan, which states: "All work shall comply with the Massachusetts Environmental Code Title 5 and [t]own of Nantucket [b]oard of [h]ealth [r]egulations." Seizing on this language, the plaintiffs contend that NSL ignored certain regulatory and Title V requirements by allowing RJ Perry to use nonconforming soils. The argument is unavailing. Viewing the provisions of the design plan and proposal together in their entirety, it is clear that the first provision mandates that the design plan mandated that "work shall comply" with certain laws and regulations. The work referenced therein was performed by RJ Perry. The provision does not require the design engineer to inspect or oversee that portion of the work. To the contrary, subsequent provisions of the design plan specify the scope of NSL's inspection obligations, as discussed, supra. There is no dispute that the design plan itself did not deviate from its stated requirements, and there is no dispute that NSL complied with its inspection obligations. Accordingly, as a matter of law, NSL had no contractual duty to inspect the fill materials installed by the contractor, RJ Perry. See Lexington Ins. Co. v. All Regions Chem. Labs, 419 Mass. 712, 713 (1995) ("The interpretation of a written contract ... is a question of law, not of fact").

2. Negligence claim. The plaintiffs also contend that the judge erred in granting summary judgment on the negligence claim based on the lack of expert testimony. "Where the [plaintiffs'] claim against [NSL] alleged [NSL's] failure to conform to the standard of care of a reasonable engineer, the plaintiff had to demonstrate the applicable professional engineering standard in this case" (emphasis omitted). Atlas Tack Corp. v. Donabed, 47 Mass. App. Ct. 221, 226 (1999). See LeBlanc v. Logan Hilton Joint Venture, 463 Mass. 316, 329 (2012), quoting Klein v. Catalano, 386 Mass. 701, 708 (1982) ("Architects, like other professionals, ... are expected to exercise 'that skill and judgment which can be reasonably expected from similarly situated professionals.' ... Expert testimony is generally needed to establish this professional standard of care"). "Only in exceptional cases, ... where the malpractice is so gross or obvious that laymen can rely on their common knowledge to recognize or infer negligence, do we not require expert testimony" (citations and quotations omitted). Id.

Here, the plaintiffs did not submit expert evidence in response to NSL's motion for summary judgment. This is not a case where the allegations against NSL involved conduct that was "so gross or obvious that laymen could have relied upon their common knowledge to recognize or infer [NSL's] negligence." Id. Rather, the standard of care and the alleged duties of NSL were "beyond the knowledge and experience of the average jury," and thus expert testimony defining that standard and those duties was required. Atlas, 47 Mass. App. Ct. at 227. Compare Stewart v. Worcester Gas Light Co., 341 Mass. 425, 428, 433-434 (1960) (finding of negligence warranted, without expert testimony, where gas company closed shutoff on gas service pipe in plaintiff's cellar and removed meter but did not close pipe shutoff at street, which contributed to subsequent gas explosion in house), with Esturban v. Massachusetts Bay Transp. Auth., 68 Mass. App. Ct. 911, 911-912 (2007) (requiring expert testimony to demonstrate causal relationship between escalator's "narrow" design and plaintiff's injuries and whether design met industry standards and governmental regulations). Moreover, there is no evidence in the summary judgment record that NSL was aware, or had a duty to be aware, of any deficiencies in the fill. See LeBlanc, 463 Mass. at 330 ("If the claim of negligence here were that the Design Team did not know, but should have known, of the deficiencies in the switchgear, we would conclude, given both the scope and the limitations of the Design Team's contractual responsibilities, that laymen could not reasonably infer without expert evidence that its failure to learn of the deficiencies constituted professional malpractice").

For all of the reasons stated herein, the judgment is affirmed.

So ordered.

Affirmed.

      RJ Perry failed to answer the complaint and the court entered a default against it. The court subsequently entered judgment in favor of the plaintiffs and against RJ Perry. RJ Perry is not a party to this appeal.

      The design plan states that "an open hole inspection by the design engineer is required prior to placing the fill material." The design plan specifies the manner in which the inspections shall proceed as follows: "The contractor shall call [NSL] to inspect the overexcavation prior to fill material and infiltrators being installed. The contractor shall call [NSL] a second time to inspect and locate the installed system. After the initial inspection [NSL] will call the Nantucket [b]oard of [h]ealth for a final inspection. Only after the final inspection is approved by the [b]oard of [h]ealth shall the system components be backfilled."

      We discern no ambiguity in the provisions of the proposal and the design plan. Even assuming, arguendo, that some conflict were to exist between these competing provisions, the more specific provision -- here the provisions delineating NSL's inspection obligations -- controls. See Lembo v. Waters, 1 Mass. App. Ct. 227, 233 (1973), quoting A. Corbin, Contracts § 547, at 176 ("If the apparent inconsistency is between a clause that is general and broadly inclusive in character and one that is more limited and specific in its coverage, the latter should generally be held to operate as a modification and pro tanto nullification of the former").

      The plaintiffs did not seek additional time to pursue discovery pursuant to Mass. R. Civ. P. 56 (f), 365 Mass. 824 (1974).

      NSL did not act as a contractor and thus did not have a contractor-subcontractor relationship with RJ Perry. Compare Kostrzewa v. Suffolk Constr. Co., 73 Mass. App. Ct. 377, 378-380 (2008) (discussing contractor-subcontractor relationship and related duties).

      For the reasons discussed, supra, as well as those articulated by the judge in her "[o]rder on plaintiffs' motion for reconsideration of June 1, 2017[,] [o]rder on summary judgment," the judge did not abuse her discretion in denying the plaintiffs' motion for reconsideration.

      To the extent that we have not specifically addressed subsidiary arguments in the parties' briefs, they have been considered, and do not merit relief or require further discussion. See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).


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    Ara ERESIAN, Jr. v. William MANTALVANOS & another.
    17-P-193
    Appeals Court of Massachusetts.
    Entered: October 22, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Also known as William N. Mantalvanos.

      Stephanie Mantalvanos, also known as Stephanie S. Mantalvanos.

   Ara Eresian, Jr., the plaintiff, sought a declaration that a certain instrument, by which a private trust's beneficiaries, the defendants, appointed a second person to act as trustee, was irregularly executed, notarized, and recorded. A Superior Court judge, after allowing the defendants' motion pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 755 (1974), dismissed Eresian's complaint, essentially on the ground that Eresian lacked standing to seek the declaration. We affirm.

To survive a motion to dismiss, a complaint must include factual allegations sufficient "to raise a right to relief above the speculative level." Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). When considering this question we look not only to the complaint's well-pleaded allegations, but also to any materials attached to the complaint. Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2000). Most relevant here, in a declaratory relief action the plaintiff must allege facts plausibly suggesting that the plaintiff has "a definite interest in the matters in contention in the sense that his rights will be significantly affected by a resolution of the contested point." Bonan v. Boston, 398 Mass. 315, 320 (1986). With these general principals in mind, we consider whether the allegations in Eresian's first amended complaint allege facts plausibly supporting a conclusion that Eresian has a "definite interest" in the questions presented.

A declaration of trust, attached to Eresian's complaint, establishes that "William Mantalvanos and Carleen R. Mantalvanos" were cotrustees of a certain trust known as the "Main/Hitchcock Realty Trust" (Trust). The settlors established the Trust to "hold any and all property that may be transferred to them as Trustees hereunder for the benefit of the persons listed in the Schedule, which is on file and in the possession of the Trustees." Eresian does not allege that he was one of the Trust's settlors or beneficiaries, but instead that he is "a lessee and off-site manager of" certain described real property "who was unlawfully ousted therefrom." Eresian does not allege that this described real property is or was held by the Trust, but, for present purposes only, we assume this to be the case.

Eresian goes on to allege that, in August of 2004, a document identified as a "Directive of Beneficiary" (Directive), a copy of which is attached to the complaint, was recorded. By the Directive, the Trust's beneficiaries, identified as the defendants, declared that the Trust's trustee was "William Mantalvanos ... as of the date hereof" and directed the Trustee to "add Ionna Mantalvanos as an additional Trustee, which addition shall take effect upon the recordation of this fully executed instrument." The Directive was executed by the defendants in their capacities as beneficiaries and their signatures were witnessed and notarized. Eresian alleges, and seeks an order declaring, that Stephanie's signature on the Directive was forged, that Stephanie did not appear before the notary, and that the notary's attestation is fraudulent.

In short, Eresian complains that a Trust document adding an additional trustee was improperly executed and recorded. But Eresian has not raised any allegations demonstrating, if proved, that he has any "definite interest" in that question. Eresian, for example, does not allege any facts plausibly suggesting that he is the Trust's settlor, trustee, or one of the Trust's beneficiaries, or that he is in any other way connected to the trust. As such, Eresian has no standing to raise his present claims and his complaint properly was dismissed. See Weaver v. Wood, 425 Mass. 270, 275 (1997), cert. denied, 522 U.S. 1049 (1998) ("In the case of a private trust, only a named beneficiary, or one suing on his or her behalf, can maintain an action to enforce a trust"); Hillman v. Second Bank-State St. Trust Co., 338 Mass. 15, 19-22 (1958) (third party lacked standing to challenge trustee's actions where trust instrument allowed but did not require trustee to seek third party's advice).

Our conclusion does not change in light of Eresian's allegation that he is (or was) a tenant of certain described premises. Assuming that the premises are or were in fact held by the Trust, Eresian has neither alleged the terms of any lease nor explained how any lease terms could give him any definite interest in the Trust.

Finally, we reject Eresian's assertion that he has standing under G. L. c. 184, § 24. Notwithstanding Eresian's citation to paragraph 5 of the Trust declaration, it is not obvious that § 24, which establishes the validity of instruments effecting title to unregistered land, has any application to instruments purporting to appoint an additional trustee to a private trust. In any event, § 24 appears to be a statute of repose, see McGuinness v. Cotter, 412 Mass. 617, 621-622 (1992), providing only that an unchallenged recorded instrument will be "effective," notwithstanding certain described defects, if more than ten years have passed since recordation. Section 24 does not afford uninterested persons standing to sue.

Judgment affirmed.

Order denying motion to vacate judgment affirmed.

      We disregard Eresian's assertion that he is the Trust's "purported sole trustee" both because the assertion constitutes a legal conclusion and because it is contradicted by the explicit terms of the only Trust documents attached to the complaint. See Galiastro v. Mortgage Elec. Registration Sys., Inc., 467 Mass. 160, 173 (2014), citing Olpin v. Ideal Nat'l Ins. Co., 419 F.2d 1250, 1255 (10th Cir. 1969), cert. denied, 397 U.S. 1074 (1970) (when considering motion to dismiss, court may disregard any allegation contradicted by terms of document attached to complaint). The defendants attached to the memorandum in support of their motion to dismiss documents indicating that Eresian had been named a trustee in August of 2012. Therefore, we disregard the plaintiff's assertion that he is a trustee because it was contradicted by the only Trust documents attached to the complaint and because he appears to have become a trustee eight years after the allegedly fraudulent appointment. See Diamond v. Pappathanasi, 78 Mass. App. Ct. 77, 93 (2010) (party must have interest in entity to maintain suit). Finally, were the plaintiff a trustee, he would not be able to litigate this matter pro se, as he has chosen to do. See Kitras v. Zoning Adm'r of Aquinnah, 453 Mass. 245, 250 n.14 (2009) (cautioning trustees against litigating trust matters pro se). See also LAS Collection Mgt. v. Pagan, 447 Mass. 847, 850-851 (2006) (unlicensed agent may not practice law on principal's behalf).

      Paragraph 5 provides, as relevant here, that "[u]pon the appointment of any successor Trustee, the title to the Trust estate shall thereupon and without the necessity of any conveyance be vested in said successor Trustee."

      Section 24 of G. L. c. 184, provides, in relevant part, that where an "owner of [unregistered] land ... or of any interest in such land" records an instrument "purporting to convey his land or interest, or in any manner affecting or purporting to affect his title thereto," and where that instrument is defective in certain described ways, the instrument nonetheless will be deemed "effective for all purposes" unless, within ten years of recordation, "a proceeding is commenced on account of the defect ... and notice thereof is duly recorded in said registry of deeds."