text:
    Aida Jacinta BIELKUS v. Marinus S. STRYDOM.
    17-P-336
    Appeals Court of Massachusetts.
    Entered: March 6, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Aida Jacinta Bielkus (wife) appeals from the corrected consolidated judgment on the complaint of Marinus Strydom (husband) to modify his alimony obligation and on her own complaint for contempt. We affirm.

Background. On July 31, 2009, a judge of the Probate and Family Court issued a judgment of divorce nisi, incorporating the parties' separation agreement. On October 26, 2009, the judge issued a supplemental judgment that decided the remaining contested issues, including the husband's child support and alimony obligations. Using the husband's base salary of $184,000 ($3,541 per week) and attributing no income to the wife, the judge ordered the husband to pay the wife $865 per week for support of the couple's two children. The judge also ordered the husband to pay alimony in the amount of $200 per week, plus thirty percent of any additional compensation (bonuses and commissions) above his base salary. Referring to the thirty percent provision, the judge added, "If the [h]usband is no longer obligated to pay alimony to the [w]ife, the above payment shall be considered child support ...."

On March 23, 2010, the husband filed a complaint for modification on the ground that the wife was employed in a business endeavor and making substantial income. Indeed, the wife had become a partner and an instructor in her family's yoga and life coaching business. On November 2, 2012, a second judge issued a temporary order reducing the husband's weekly alimony obligation from $200 to $150 and suspending the husband's obligation to pay a percentage of his additional compensation.

On October 30, 2013, the husband amended his complaint for modification to include a request to terminate alimony payments based on the durational limits set forth in the Alimony Reform Act. See G. L. c. 208, § 49(b )(2). By stipulation, the parties agreed to suspend the husband's alimony obligation as of February 28, 2015. On April 8, 2015, the wife filed a complaint for contempt based on the husband's failure to pay his portion of the children's extracurricular and orthodontia expenses.

On June 27, 2016 (nunc pro tunc to May 31, 2016), after a trial on the husband's amended complaint for modification and the wife's complaint for contempt, a third judge issued the corrected consolidated judgment that is the subject of this appeal. The judge terminated the husband's obligation to pay thirty percent of additional compensation as of November 2, 2012, and terminated the weekly alimony of $150 as of February 28, 2015, based on the Alimony Reform Act's durational limits-effectively affirming the second judge's temporary order and the parties' stipulation concerning the durational limit.

The trial judge also recalculated the husband's child support obligation. By averaging the last four years of the husband's total compensation (base salary plus bonuses and commissions), the judge found the husband's weekly income to be $4,676. Based on the parties' stipulation that the wife's annual earning potential from 2012 forward was $20,000, the judge attributed weekly income of $385 to her. Under the Child Support Guidelines, the husband was obligated to pay $888 per week. Taking into account the increased expenses of the older children, the judge deviated upwards and ordered the husband to pay child support in the amount of $925 per week. The judge made the increased child support obligation retroactive to January 1, 2016, and ordered the husband to make a one-time lump-sum payment of $1,260 to make up the difference between the original child support amount and the increased amount.

Finally, attributing the husband's nonpayment of the children's expenses to the parties' "issues communicating as to extracurricular activities," the judge dismissed the complaint for contempt and eliminated the requirement that the husband pay half of the expenses for such activities.

Discussion. 1. Modification of alimony. As a consequence of the temporary order and the corrected consolidated judgment, the husband's original alimony obligation of $200 weekly plus thirty percent of additional compensation was reduced to $150 per week as of November 2, 2012. The wife contends that the husband failed to demonstrate a material change in circumstances to warrant this modification, and that she is therefore entitled to back payment of alimony through February 28, 2015, in the amount of $70,584.57. The record belies her claim.

Upon a complaint for modification of alimony, the court may "revise and alter its judgment relative to the amount of such alimony ... and may make any judgment relative thereto which it might have made in the original action." G. L. c. 208, § 37, as amended through St. 1977, c. 495. "To be successful in an action to modify a judgment for alimony or child support, the petitioner must demonstrate a material change of circumstances since the entry of the earlier judgment." Pierce v. Pierce, 455 Mass. 286, 293 (2009), quoting from Schuler v. Schuler, 382 Mass. 366, 368 (1981). "Unless there is no basis in the record for the judge's decision, we defer to the judge's evaluation of the evidence presented at trial." Downey v. Downey, 55 Mass. App. Ct. 812, 816 (2002), quoting from Bush v. Bush, 402 Mass. 406, 411 (1988). We carefully consider the record to determine whether the judge's factual findings are clearly erroneous, whether the judge made any errors of law, and whether the judge committed an abuse of discretion. See Pierce, supra at 293.

When the parties divorced in 2009, the wife was not employed and consequently had no income. By late 2012, however, she was actively involved in her family's business and receiving income therefrom. Exactly how much of the company she owned and how much she was earning were disputed issues at trial, and the parties ultimately stipulated that her income was $20,000 per year. While the court commented that this amount was "not substantial enough to alter the child support amount," the change in circumstances was sufficient for modification of the alimony award. A judge may consider a party's potential earning capacity in evaluating a material change in circumstances. See, e.g., Emery v. Sturtevant, 91 Mass. App. Ct. 502, 509 (2017). The judge did not err or abuse his discretion in reducing the husband's alimony obligation to $150 per week, and eliminating the thirty percent payment, for the period between November 2, 2012, and February 28, 2015.

2. Child support. The wife contends that the trial judge erred in recalculating the husband's child support obligation because he did not incorporate the first judge's provision that thirty percent of additional compensation should be paid as child support if the husband was no longer required to pay alimony. The wife also argues that the judge did not properly apply the Child Support Guidelines.

The guidelines applicable at the time of trial were to be "calculated up to a maximum combined available annual gross income of the parties of $250,000." Massachusetts Child Support Guidelines § II.C (2013). "In cases where income exceeds this limit, the Court should consider the award of support at the $250,000 level as the minimum presumptive order. The child support obligation for the portion of combined available income that exceeds $250,000 shall be in the discretion of the Court." Ibid. "There shall be a rebuttable presumption that the amount of the order which would result from the application of the guidelines is the appropriate amount." G. L. c. 119A, § 13(c ), inserted by St. 1993, c. 460, § 53.

In making the guidelines calculation, the judge correctly considered the husband's entire income, including his additional compensation. See Massachusetts Child Support Guidelines § I.A (2013) (defining income to include "salaries, wages, overtime and tips," "commissions," and "bonuses"). The judge determined that the husband's annual income from all sources was $243,158. Assuming the wife's annual income to be $20,000-an amount that the judge considered favorable to the wife-the parties' total income was $263,158.

The guidelines calculation with respect to the first $250,000 yielded an award of $888 per week to the wife. The judge had discretion to allocate the additional $13,158 as he deemed appropriate. Taking into account the children's increased activities, the judge, in fact, deviated upward by $37 per week in favor of the wife, setting the husband's weekly child support obligation at $925, as compared to his prior obligation of $865. We discern no error or abuse of discretion.

3. Contempt. Additionally, the wife contends that the husband should be held in contempt for refusing to pay his share of the children's orthodontia expenses and the gymnastic classes as required by the separation agreement.

"To constitute civil contempt there must be a clear and undoubted disobedience of a clear and unequivocal command." Mahoney v. Mahoney, 65 Mass. App. Ct. 537, 540 (2006), quoting from Kraft v. Police Commr. of Boston, 417 Mass. 235, 239 (1994). "Civil contempt proceedings are 'remedial and coercive,' intended to achieve compliance with the court's orders for the benefit of the complainant." Poras v. Pauling, 70 Mass. App. Ct. 535, 539 (2007), quoting from Furtado v. Furtado, 380 Mass. 137, 141 (1980). The complainant has the burden to establish the contempt by clear and convincing evidence. Cooper v. Keto, 83 Mass. App. Ct. 798, 804 (2013). "We review the decision to dismiss the complaint for abuse of discretion." Koshy v. Sachdev, 477 Mass. 759, 773 (2017). See Eldim, Inc. v. Mullen, 47 Mass. App. Ct. 125, 129 (1999) (purpose of contempt proceedings is remedial, "and the formulation of the remedy is within the judge's discretion").

The wife claimed that the husband violated the separation agreement when he withheld payment for one child's gymnastics classes. The husband defended his refusal on the ground that he had agreed to pay only if the child were registered in the husband's surname rather than a hyphenated surname. Rather than hold the husband in contempt, the judge eliminated the husband's obligation to pay for extracurricular activities and increased the husband's weekly child support obligation-including a retroactive increase to be paid in a lump sum of $1,260. The judge did not abuse his discretion in dismissing the complaint and fashioning a new remedy for the parties.

The wife also claims that the husband violated the separation agreement when he refused to pay the orthodontia expenses. The separation agreement provides a complicated procedure for selection and payment of health care services for the children, requiring consultation and agreement between the husband and wife, and a formula to use in the case that no agreement can be reached. With respect to the orthodontist, the parties could not reach agreement, and the husband testified that he was "willing to pay half of any fees that are regular in the industry but I have yet to see any explanation of what the treatment is." The judge did not abuse his discretion in declining to find the husband in contempt.

Corrected consolidated judgment dated June 27, 2016, affirmed.

      The judge accepted the parties' stipulation even though he believed that it underestimated the wife's earning capacity, finding that "the income presently, and in the future will probably be higher, in the $25,000-$30,000 range."

      As the wife conceded at oral argument, in making this calculation she erroneously calculated the husband's obligation for 2015 based on the entire year rather than just the first two months. Accordingly, she overstated her claim by at least $22,000.

      We note that the husband paid the wife a total of $1,015 per week during this period in child support and alimony. This exceeds the husband's recalculated child support obligation from January 1, 2016, forward, which was based on his total gross income, including bonuses and commissions.

      By incorporating the husband's additional compensation in the child support calculation, the revised child support order superseded any prior order requiring a percentage payment from additional compensation. The judge did not err in this regard; indeed, self-modifying orders such as the prior order here are disfavored. See Hassey v. Hassey, 85 Mass. App. Ct. 518, 526-528 (2014). To the extent the husband's income increases in the future such that the current child support order becomes inequitable, the wife may seek to modify the child support award accordingly. See Morales v. Morales, 464 Mass. 507, 511 (2013).

      The husband's request for attorney's fees is denied. We do not view the wife's appeal as frivolous.


source: Caselaw Access Project

license: Public Domain

text:
    Parviz SANIEOFF v. Syroos SANIEOFF.
    17-P-619
    Appeals Court of Massachusetts.
    Entered: March 1, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The parties are brothers who agreed to submit to binding arbitration of "any and all claims and counterclaims raised in" a pending Superior Court action that arose out of the brothers' real estate ventures. In that suit, the plaintiff (Parviz) alleged breach of fiduciary duty, breach of contract, breach of the implied covenant of good faith and fair dealing, and sought an accounting, judicial dissolution, and injunctive relief. The defendant (Syroos) asserted counterclaims of breach of contract, breach of the implied covenant of good faith and fair dealing, claims to recover on a promissory note and for money had and received, abuse of process, violation of G. L. c. 93A, § 11, specific performance, and injunctive relief. After a two-day hearing, the arbitrator awarded Parviz $3,654,136.13 on his claims, and nothing to Syroos on his counterclaims, with each party to bear his own attorney's fees and costs. A judge of the Superior Court confirmed the award after correcting what he concluded was a mathematical error. Judgment was awarded in favor of Parviz for $3,778,028.13 plus interest and costs; Syroos's counterclaims were dismissed; Spectacular Realty, LLC, was dissolved under G. L. c. 156C; and Fenmore Realty Trust was terminated, with its beneficial interest divided equally between the parties.

Syroos has appealed, arguing that (1) the arbitrator exceeded his authority by making an award to a nonparty, (2) the arbitrator failed to decide all issues submitted to him, (3) the judge erred in modifying the award, and (4) the arbitrator's arbitrary conduct permeated the arbitration such that a new arbitration is required. We affirm.

An arbitration award is subject to a narrow scope of review, Superadio Ltd. Partnership v. Winstar Radio Prods., LLC, 446 Mass. 330, 333 (2006). That said, "[j]udicial intervention is permitted where an award 'was procured by corruption, fraud or other undue means,' [G. L. c. 251,] § 12(a )(1), or where the 'arbitrators exceeded their powers,' [G. L. c. 251,] § 12(a )(3)." Superadio Ltd. Partnership, supra at 334. "An arbitrator exceeds his authority by granting relief beyond the scope of the arbitration agreement ... by awarding relief beyond that to which the parties bound themselves ... or by awarding relief prohibited by law." Ibid., quoting from Plymouth-Carver Regional Sch. Dist. v. J. Farmer & Co., 407 Mass. 1006, 1007 (1990).

Here, Syroos contends that the arbitrator exceeded his authority by awarding damages to Unique Realty Trust (Unique), a nonparty to the arbitration. At the outset, we note that this argument was not raised below and is waived. Martins v. University of Mass. Med. Sch., 75 Mass. App. Ct. 623, 634 n.17 (2009). It also fails because it is factually infirm. The arbitrator did not award anything to Unique; only Parviz (who was a party properly before the arbitrator) received an award. The fact that the arbitrator credited Parviz for amounts paid from, as the arbitrator found, "his Unique Realty Trust account" does not mean that the arbitrator made an award to Unique.

At bottom, although styled as one concerning the arbitrator's authority, in truth Syroos's argument is an attempt to attack the arbitrator's factual determination that monies from Unique were contributed by Parviz on his own behalf, rather than on behalf of Unique. But "[a]n arbitrator's findings of fact and conclusions of law are binding even if erroneous." Conway v. CLC Bio, LLC, 87 Mass. App. Ct. 503, 505 (2015). Even were that not the case, there was ample evidence for the arbitrator's finding. Although Unique appears to have had a separate form as a realty trust, it was one hundred percent Parviz's and he was the real party in interest. Druker v. State Tax Commn., 374 Mass. 198, 201 (1978).

We are equally unpersuaded by Syroos's argument that the arbitrator was required to spell out the specific steps required to unwind the affairs of Spectacular Realty, LLC, rather than to simply order its dissolution pursuant to G. L. c. 156C, § 44. Although it is presumed that arbitrators will decide all matters submitted to them, Fazio v. Employers' Liab. Assur. Corp., 347 Mass. 254, 257 (1964), it does not follow that the arbitrator was required to do anything more than order dissolution, especially because he required the parties to take all steps necessary to achieve that end. As the judge noted, G. L. c. 156C, §§ 43, 45(b ), and 46, provide for the dissolution and winding up of an LLC. And, once confirmed, the arbitration award became a court order subject to all the ordinary remedies should one of the parties fail to comply with the order to take all necessary steps to achieve the entity's dissolution. Nothing further was required.

Syroos next argues that the judge improperly modified the arbitration award to correct mathematical errors. On pages seven through eight of the corrected final award, the arbitrator laid out his calculation of the amount to be awarded Parviz, broken down by each entity at issue. Those figures correspond to the amounts mentioned in previous paragraphs in which the arbitrator addressed his reasoning with respect to each entity. However, the chart contains an evident mathematical miscalculation resulting in a shortfall to Parviz. The sum of the subsidiary figures is $3,778,028.13, not $3,381,593.13 as the arbitrator stated. It is true that a different number, $3,654,136.13, appears on the last page of the arbitrator's award. The judge was entitled to determine that this too was a mathematical error, especially because he had the benefit of the arbitrator's detailed rationale as to each entity and the summary chart on pages seven through eight. Where "there was an evident miscalculation of figures," the judge can correct the award at the request of a party. G. L. c. 251, § 13(a )(1). "The 'evident miscalculation of figures' referred to is one which arises in the working out in mathematical terms of an agreed or assumed standard or principle." Dadak v. Commerce Ins. Co., 53 Mass. App. Ct. 302, 304-305 (2001) (citation omitted). In other words, it does not stem "from the arbitrators' adoption of particular substantive positions." Id. at 305-306. The judge's correction of the award fell within these acceptable parameters.

Finally, Syroos argues that the arbitrator engaged in arbitrary conduct by (1) ignoring agreed-to facts; (2) double counting damages; (3) ignoring his own legal conclusion resulting in an irreconcilable award; and (4) awarding damages inconsistent with the contribution made. Even if these assertions were correct (a matter we specifically do not suggest is the case), they would be no basis upon which to vacate the award. See G. L. c. 251, § 12(a ).

We deny Parviz's request, pursuant to Mass.R.A.P. 25, as appearing in 376 Mass. 949 (1979), for attorney's fees associated with this appeal, although we note that the issues raised by Syroos were not substantial.

Judgment affirmed.


text:
    Daniel W. CRONIN & another v. TOWN OF LUNENBURG & others.
    17-P-99
    Appeals Court of Massachusetts.
    Entered: March 1, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Jacquelyn M. Cronin.

      The zoning board of appeals of Lunenburg and its members in their official capacity.

   After the zoning board of appeals of Lunenburg (board) affirmed the town building inspector's decision to deny the plaintiffs a building permit, the plaintiffs sought review in Superior Court pursuant to G. L. c. 40A, § 17. The judge ordered summary judgment for the board, reasoning that the doctrine of infectious invalidity precluded the plaintiffs from obtaining the building permit. On appeal, the plaintiffs claim that the judge erred because they had cured any infectious invalidity prior to the permit application. We affirm.

Background. We summarize the material facts in the light most favorable to the plaintiffs. See Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). On March 12, 2004, the plaintiffs purchased real property at 27 Oak Avenue in the town of Lunenburg (27 Oak). At the time of purchase, the plaintiffs owned an adjacent parcel, 31 Turkey Hill Road (31 Turkey Hill). Both parcels had been improved by single-family homes. While 31 Turkey Hill complied with the Lunenburg zoning by-law in all respects, 27 Oak did not. The width of the 27 Oak lot was 140 feet, thirty-five feet less than required. However, 27 Oak predated the relevant zoning by-law and therefore qualified as a preexisting nonconforming lot. See G. L. c. 40A, § 6.

The plaintiffs sought to create a third buildable lot (new lot) using land from both 27 Oak and 31 Turkey Hill. To this end, they deeded a five foot wide, 260 foot long strip (spur) from 27 Oak to 31 Turkey Hill, and installed a sewer line along the spur to connect to the municipal sewer system. This transfer further reduced the width of 27 Oak from 140 feet to 135 feet. The plaintiffs filed an approval not required plan (ANR plan) with the town, and subsequently sold 27 Oak.

In 2008, the plaintiffs applied for a permit to build a single-family home on the new lot. In a decision affirmed by this court in Cronin v. Zoning Bd. of Appeals of Lunenburg, 79 Mass. App. Ct. 1112 (2011) (Cronin I ), the application was denied because the transfer of the spur from 27 Oak to the new parcel caused 27 Oak to lose its status as a lawful preexisting nonconforming lot. "Under the common-law principle of 'infectious invalidity,' a property owner may not create a valid building lot by dividing it from another parcel rendered nonconforming by such division." 81 Spooner Road, LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692, 694 n.6 (2012). Accordingly, the doctrine of infectious invalidity rendered the new lot unbuildable, as its formation created a zoning violation at 27 Oak.

Prompted by a footnote in Cronin I, the plaintiffs transferred the spur to the new owners of 27 Oak in exchange for an easement over the land and its sewer connection infrastructure. They then recorded another ANR plan and reapplied for a permit to build on the new lot. Their application was again denied based on the doctrine of infectious invalidity. A Superior Court judge affirmed the board's decision and this appeal followed.

Discussion. We review the summary judgment record de novo, see Federal Natl. Mort. Assn. v. Hendricks, 463 Mass. 635, 637 (2012), to determine "whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law." Augat, Inc., supra. In this context, we "determine[ ] whether the board has applied th[e appropriate legal] standards in an unreasonable, whimsical, capricious or arbitrary manner." Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461 Mass. 469, 475 (2012) (quotation omitted).

Here, the question is whether the board could have reasonably decided that, notwithstanding the transfer of the spur back to 27 Oak, the doctrine of infectious invalidity still applied. The judge summarized the board's decision as follows:

"[The board found 27 Oak] in violation of a Lunenburg ... Zoning Bylaw, Section 5.[1.]6.1, 'Reduction of an occupied lot.' As such, zoning infractions exist as a result of [the new lot] and have not been cured and as such, based on the doctrine of infectious invalidity, ... the [board] denied the building permit."

Section 5.1.6.1 of the town's by-law states that "no lot on which a building is located ... shall be reduced or changed in size or shape so that the ... lot fails to comply with lot area, width, setback or yard provisions of this Bylaw, or, if such ... lot already fails to comply with said provisions, such reduction or change would bring about a greater degree of non-compliance." We discern nothing arbitrary or unreasonable in the board's determination that the use of the spur to create a new lot rendered 27 Oak more noncompliant with Lunenburg's zoning regulations. This determination was not "whimsical" or "capricious." Shirley Wayside Ltd. Partnership, supra. Rather, it was the board's "reasonable interpretation of its own zoning bylaw," and was entitled to deference. Ibid.

27 Oak lost its lawful preexisting nonconforming status when the spur was first conveyed. See Cronin I, supra. The reconveyance of the spur back to 27 Oak did not revive the lot's preexisting nonconforming status. See Carabetta v. Board of Appeals of Truro, 73 Mass. App. Ct. 266, 271 (2008) (lots may not be reconfigured "so as to restore old record boundaries to obtain a grandfather nonconforming exemption"). Therefore, at the time of the second building permit application, 27 Oak's lot width-a dimension including the width of the spur-violated the town's zoning by-law. The board could reasonably have concluded that increased use of this nonconforming portion of 27 Oak solely to support the creation of a new lot was a change to 27 Oak that aggravated its nonconformity, in violation of section 5.1.6.1 of the town's by-law. This increased invalidity "infected" the new lot and rendered it nonconforming as well. We therefore conclude that the board reasonably applied the doctrine of infectious invalidity to affirm the building inspector's denial of a permit. See 81 Spooner Road, LLC, 461 Mass. at 694 n.6.

Judgment affirmed.

      In relevant part, the footnote stated, "[i]f the plaintiffs were to deed the spur back to the owners of [27 Oak] in exchange for an easement over the same strip of land, then [27 Oak's] width nonconformity would regain its protected status." Cronin I, supra at n.9.

      Our review is complicated by the absence of the summary judgment record. The parties have supplied only the judge's memorandum of decision. However, as neither party disputes the facts or the judge's characterization of the reason for the board's decision, we decide the issue on the record before us.

      We do not fault the plaintiffs for pursuing the remedy suggested by footnote nine in Cronin I. We agree with the judge, however, that the footnote is dictum unsupported by any authority for the proposition that, in these circumstances, 27 Oak could regain its protected status via reconveyance.

      "[A] local board of appeals brings to the matter an intimate understanding of the immediate circumstances, of local conditions, and of the background and purposes of the entire bylaw." Berkshire Power Dev., Inc. v. Zoning Bd. of Appeals of Agawam, 43 Mass. App. Ct. 828, 832 (1997) (quotation omitted). Accordingly, "deference is owed to a local zoning board's home grown knowledge about the history and purpose of its town's zoning by-law." Deadrick v. Zoning Bd. of Appeals of Chatham, 85 Mass. App. Ct. 539, 545 (2014) (quotation omitted).


text:
    Teries ISCKARUS v. FEDERAL NATIONAL MORTGAGE ASSOCIATION & another.
    17-P-1197
    Appeals Court of Massachusetts.
    Entered: March 1, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Cummingham, Machanic, Cetlin, Johnson, Harney & Tenney, LLP.

   The plaintiff, Teries Isckarus, filed the underlying action seeking to set aside the foreclosure sale of her residence. A Superior Court judge dismissed the complaint for failure to state a claim pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974), and judgment entered for the defendants. The plaintiff challenges the dismissal on appeal. We affirm.

It is the plaintiff's burden to provide us with a record that supports her claims on appeal. See Mass.R.A.P. 18(a), as amended, 425 Mass. 1602 (1997); Cameron v. Carelli, 39 Mass. App. Ct. 81, 83-84 (1995). Other than a copy of the motion judge's decision, which the plaintiff has appended to her brief, she has provided no record at all. In particular, the plaintiff has failed to provide a copy of her complaint. Without the complaint, we are unable to determine whether the plaintiff sufficiently stated facts that might plausibly entitle her to relief from the defendants.

Moreover, the plaintiff's brief does not adequately inform us of the nature and basis of her claims on appeal or the error, if any, purportedly made by the motion judge. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975); Cameron v. Carelli, supra at 85-86. The plaintiff does not explain why the foreclosure was "[i]llegal" or identify what steps in the foreclosure process may not have been followed. Such "bald assertions ... lacking legal argument and authority" are not appropriate appellate argument. Zora v. State Ethics Commn., 415 Mass. 640, 642 n.3 (1993).

Judgment affirmed.

      Because the documents appended to the plaintiff's notice of appeal do not appear to have been before the motion judge, we do not consider them. See Delisle v. Commonwealth, 416 Mass. 359, 361 n.2 (1993).

      The request by defendant Cummingham, Machanic, Cetlin, Johnson, Harney & Tenney, LLP, for fees and costs, unsupported by citation to authority, is denied.


text:
    COMMONWEALTH v. Bernardo G. BREA.
    17-P-405
    Appeals Court of Massachusetts.
    Entered: March 1, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant was charged with receiving stolen property, G. L. c. 266, § 60 ; larceny of a motor vehicle, subsequent offense, G. L. c. 266, § 28(a ) ; and unlawful possession of fireworks, G. L. c. 148, § 39, after the police executed a search warrant on a storage unit he was renting. The defendant moved to suppress the fruits of the search, arguing that the search was not supported by probable cause, and the judge allowed the motion. The Commonwealth appealed. We reverse.

Facts. The search warrant was supported by an affidavit of Officer Gregory W. Smith and a document provided by Uncle Bob's Self Storage (Uncle Bob's), where the defendant rented his storage unit. Officer Smith averred that, on December 11, 2014, he had been told by a named confidential informant, a former cell mate of the defendant at a correctional facility, that the defendant had brought the informant to unit E39 on December 6, 2014. According to the informant, the defendant showed him at least three dirt bikes and told him that they were stolen and for sale. The informant provided Officer Smith with his contact information and date of birth, and he offered to testify in court concerning the information he provided. The next day, Officer Smith went to Uncle Bob's and inquired about the unit. The manager at Uncle Bob's told him that the defendant had recently vacated unit E39. Officer Smith entered the unit and observed "multiple sets of tire tracks across the floor ... consistent with dirt bike tire patterns." The manager then provided Officer Smith with a document indicating that the defendant had vacated unit E39 on November 29, 2014, and had moved to unit C03. Later that day (December 12), Officer Smith obtained and executed a search warrant on unit C03. He found several dirt bikes and dirt bike parts, as well as some fireworks.

Analysis. "[A] search warrant may issue only on a showing of probable cause." Commonwealth v. Anthony, 451 Mass. 59, 68 (2008). "[W]e review the motion judge's probable cause determination de novo." Commonwealth v. Tapia, 463 Mass. 721, 725 (2012) (quotation omitted). Probable cause exists only if "the facts contained in an affidavit, and reasonable inferences that may be drawn from them, [are] sufficient for the magistrate to conclude that the items sought are related to the criminal activity under investigation, and that they reasonably may be expected to be located in the place to be searched at the time the warrant issues." Anthony, supra (quotations omitted).

Here, the informant's tip was essential to any expectation that items relating to criminality would be found in unit C03. Thus, the crucial question, as the lower court and the parties recognize, is the reliability of the informant's information. This is evaluated under the two-pronged Aguilar-Spinelli test. See Commonwealth v. Upton, 394 Mass. 363, 374-376 (1985). First, the Commonwealth must demonstrate that the informant had a sufficient basis of knowledge. We hold that this prong was satisfied. Second, the Commonwealth must demonstrate the informant's veracity. See id. at 374-375.

The defendant argues on appeal, and the judge below held, that a discrepancy between the informant's statements and the Uncle Bob's document vitiates the informant's veracity: the informant told Officer Smith that he had visited the defendant's E39 unit on December 6, but the document reveals that the defendant moved out of that unit on November 29. We agree with the defendant that this discrepancy reduces the informant's veracity to some extent, but hold, given the totality of the circumstances, that the informant was still sufficiently veracious for his information to support a finding of probable cause.

While we will assume the informant did not visit unit E39 when he said he did, his knowledge of the unit number strongly supports an inference that he visited the unit at some point after the defendant started renting it in October of 2014. The existence of tire tracks consistent with dirt bike tracks in unit E39 on December 12, 2014, corroborates the informant's statements that he had seen dirt bikes there, and indicates they were recently in the unit. Finally, the informant was named, gave Officer Smith his contact information, and offered to cooperate with the police in subsequent proceedings, which substantially bolstered his veracity, and thus his statement that the defendant told him the bikes were stolen. See Commonwealth v. Alvarez, 422 Mass. 198, 205 (1996) (named informants have "inherent reliability"). This is sufficient to support a finding of probable cause. Therefore, the order allowing the defendant's motion to suppress is reversed.

So ordered.

Reversed.

      The Commonwealth advances several speculative explanations for the discrepancy. We do not credit any of them and hold that probable cause exists despite the Commonwealth's inability to explain the discrepancy.

      Although the Uncle Bob's document is ambiguous as to when in October the defendant moved in, the move-in date is most likely October 27. The "Start Date" is listed as October 1. However, the "Original Move" and "Space Moved In" dates are listed as October 27, and the document indicates that the defendant made a payment of $29.84 on October 27, which is equal to the five-day prorated amount of his monthly rate of $185. A full payment of $185 was made on November 4, which presumably was the November payment; therefore, the $29.84 was most likely a prorated payment for the portion of October that he occupied the unit. Thus, the informant could have visited the unit at most one and one-half months before the search warrant was executed.


text:
    COMMONWEALTH v. Ricky L. WHITE.
    16-P-1208
    Appeals Court of Massachusetts.
    Entered: March 1, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   On September 9, 2011, the defendant pleaded guilty to sixteen indictments stemming from a series of drug transactions and a traffic stop, all of which occurred in 2009, including trafficking in cocaine; distribution of heroin, subsequent offense; possession of cocaine with intent to distribute, subsequent offense; possession of a class B substance; a school zone violation; conspiracy to distribute; and accessory to distribute heroin. On October 15, 2012, the defendant filed a motion to withdraw his guilty pleas based on the misconduct of Annie Dookhan, who was employed as a chemist at the William A. Hinton State Laboratory Institute (Hinton lab). A special magistrate issued a proposed order that denied the motion on December 9, 2014. A Superior Court judge adopted the proposed order and denied the motion on July 11, 2016. The defendant appeals, alleging that Dookhan's involvement detracted from the factual basis of the plea and, as a result, he would have rejected the plea agreement had he known. We affirm.

A motion to withdraw a guilty plea is treated as a motion for a new trial under Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001), and reviewed "to determine if the judge committed a significant error of law or other abuse of discretion." Commonwealth v. Williams, 89 Mass. App. Ct. 383, 388 (2016), quoting from Commonwealth v. Scott, 467 Mass. 336, 344 (2014). A defendant must enter a guilty plea "with an understanding of the nature of the charge and the consequences of the plea." Williams, supra. To determine whether these requirements have been satisfied in light of a challenge centered on Dookhan's misconduct, we begin "with a conclusive presumption that the misconduct was egregious and that its occurrence was attributable to the Commonwealth," ibid., quoting from Scott, supra at 352, and, second, consider whether the defendant showed that "the misconduct influenced his decision to plead guilty or, put another way, that it was material to that choice." Ibid., quoting from Scott, supra at 346.

With regard to the first prong, Dookhan was listed as the primary chemist on one drug certificate and the secondary, or confirmatory, chemist on nine. As such, the judge found that the defendant was entitled to this presumption with respect to the distribution and school zone charges, as well as the remaining charges on which Dookhan was the confirmatory chemist. With regard to the second prong, the defendant claims that both the special magistrate and Superior Court judge erred in finding that Dookhan's misconduct was not material to his plea agreement.

1. Factual basis of the plea. The defendant claims that evidence of Dookhan's misconduct would have detracted from the factual basis used to support his plea. We disagree. Even without admitting the drug certificates, the positive field tests for cocaine and heroin and the circumstantial evidence surrounding the defendant's arrest were sufficient to establish that the substances were cocaine and heroin.

First, the field tests could have been properly introduced at trial to support the defendant's conviction of the drug charges. See Commonwealth v. Dawson, 399 Mass. 465, 467 (1987) ("Proof that a substance is a particular drug need not be made by chemical analysis and may be made by circumstantial evidence"). To be admissible, field tests must be shown reliable in accordance with the "inherently fact-intensive and flexible Lanigan analysis.[ ]" Commonwealth v. Fernandez, 458 Mass. 137, 149 (2010), quoting from Canavan's Case, 432 Mass. 304, 312 (2000). The Commonwealth could have made certain proffers, such as the training and experience of the conducting officer and the methodology of the testing, to support the judge finding the tests to be reliable. See Commonwealth v. Marte, 84 Mass. App. Ct. 136, 141 (2013). Although not conclusive that the substances at issue were, in fact, illegal narcotics, a "presumptively positive field test, with proper foundation, may be of persuasive weight" to a fact finder. Id. at 141-142.

Second, circumstantial evidence of the defendant's conduct in this case supported the reliability of the field tests and the plea agreement as a whole. See id. at 142. The defendant and his codefendant, Evans Mahon, engaged in a series of transactions over a two-month period in 2009 with an undercover officer for the sale of substances, each of which tested positive in field tests for cocaine and heroin. During these transactions, the defendant used street terms for quantities of drugs, such as "forty," and "fifty," and was referred to by a "street name." The defendant arranged for the officer to meet Mahon in various locations, where Mahon handed the officer bags of white, rock-like substances, and paper packets containing brown substances that field tested positive for cocaine and heroin, respectively. The defendant himself handed the officer bags of white, rock-like substances, which also field tested positive for cocaine. Finally, the defendant was stopped while driving, and a search of the car turned up marijuana, cocaine, Vicodin pills, and Suboxone pills. In its totality, such circumstantial evidence is sufficient to support the factual basis of the plea agreement.

2. Plea agreement. The defendant next claims that he established that he would have rejected the plea agreement. We disagree. The reduction in the defendant's sentence provided an obvious incentive to make the plea agreement rather than risk the uncertainties of trial. The defendant faced a mandatory minimum of fourteen years for the charges, or forty-five if sentenced consecutively. Even if all of the charges related to Dookhan's misconduct were dismissed, the defendant would have nevertheless faced a mandatory minimum of ten years for the two conspiracy charges and one charge of possession with intent to distribute cocaine that was not tested at the Hinton lab. Instead, the defendant resolved all the charges, including the 2011 offense, with a single global plea that significantly reduced the sentence to "concurrent sentences of five years to five years and one day in State prison on nine of his sixteen counts, followed by two and one-half years in the house of correction for the five school zone charges, followed by nine years of supervised probation on the remaining two counts."

The defendant next claims that his plea counsel believed a shorter sentence was possible if the conspiracy and accessory charges stood alone. This claim fails on two grounds. First, conspiracies to distribute can be proven separately from the underlying drug offense. See Commonwealth v. Cantres, 405 Mass. 238, 242-243 (1989). Second, as previously stated, because proof that the drugs were cocaine and heroin can be supplied by circumstantial evidence, it would have been irrational to refuse a plea agreement that reduced the sentences for both the conspiracy and accessory charges. This is especially true considering the 2011 charge would have remained in effect. Therefore, the defendant has not established that, as a reasonable probability, he would have rejected the plea.

Order dated July 11, 2016, denying motion for new trial affirmed.

      The defendant also resolved an unrelated charge from 2011 that is not at issue in this appeal.

      See Commonwealth v. Lanigan, 419 Mass. 15, 26 (1994).

      To support the defendant's argument that Dookhan's misconduct detracted from the factual basis of his plea agreement, he also argues that the police officers' testimony may have been subject to evidentiary challenges. We decline to conclude that the judge abused her discretion based on speculation. See Scott, 467 Mass. at 357.

      In fact, the defendant testified that he "took the plea because of the fact that [he] was told [he] was going to get a substantial amount of time and [he] wasn't willing to go to trial."

      The defendant also claims the special magistrate gave disproportionate weight to the defendant's statements during the plea colloquy. Because the defendant failed to point to evidence in the record to support this claim, we deem it waived. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).


text:
    C.E.M. v. J.A.L.
    17-P-797
    Appeals Court of Massachusetts.
    Entered: March 6, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant appeals from a District Court order dated February 17, 2017 (the order), extending for one year an initial ex parte abuse prevention order issued pursuant to G. L. c. 209A. The defendant argues that at the evidentiary hearing at which both parties testified, the plaintiff (his former wife) failed to introduce sufficient evidence to support the order. We disagree and therefore affirm the order.

As the judge made no findings, "we consider whether the judge could find, by a preponderance of the evidence, together with all permissible inferences, that the defendant had committed" abuse within the meaning of G. L. c. 209A. Gassman v. Reason, 90 Mass. App. Ct. 1, 7 (2016) (same, regarding order under G. L. c. 258E). One such form of abuse is "placing another in fear of imminent serious physical harm." G. L. c. 209A, § 1, amended by St. 1990, c. 403, § 2. When this type of abuse is at issue,

"[t]he judge must focus on whether serious physical harm is imminent and should not issue a c. 209A order on the theory that it will do no harm, i.e., 'seems to be a good idea or because it will not cause the defendant any real inconvenience.' Wooldridge v. Hickey, 45 Mass. App. Ct. [637,] 639 [ (1998) ], quoting from Smith v. Joyce, 421 Mass. 520, 523 n.1 (1995)."

Carroll v. Kartell, 56 Mass. App. Ct. 83, 87 (2002). "Generalized apprehension, nervousness, feeling aggravated or hassled" is insufficient. Wooldridge, 45 Mass. App. Ct. at 639. "[O]ur cases have required in addition that the fear be reasonable." Iamele v. Asselin, 444 Mass. 734, 737 (2005).

Here, the parties had been married for three and one-half years, the plaintiff filed for divorce in August of 2016, and a judgment of divorce nisi issued on November 30, 2016. The plaintiff sought the G. L. c. 209A order in early February, 2017. Her affidavit recited, among other things, that the defendant, on three different occasions during their marriage, had been physically abusive to her while intoxicated, including by throwing beer bottles. The affidavit further stated that he had been sending "threatening" electronic mail messages (e-mails) and text messages for months and had "threatened [her] physical and mental safety."

At the evidentiary hearing on the extension of the ex parte order, the plaintiff proceeded pro se; the defendant was represented by counsel. The plaintiff testified that the defendant had been "abusive emotionally and at times physically" during their marriage. On one occasion in November, 2015, she "was driving him home and he was black-out drunk and he punched [her] in the leg." After she filed for divorce, he had sent her "thousands of text messages, e-mails and phone calls of an harassing, disturbing, threatening nature." Asked by the judge for details about those messages that the plaintiff "took as a threat to physically harm" her, she read some of them out loud, from August and September, 2016:

"I'm going to bring this TDO back and put ten thousand bullet holes in it. I'm going whacky, fucking nuts. God fucking damn. Eat shit. Wait 'til that cunt sees what I did.
"...
"You better tell your buddies I want my punching bag back or they will be my punching bag. That was mine.
"...
"Rage. I'm so fucking mad anyone in my way will feel the devil. Rage. Rage. I know I will spend the rest of my life in jail. Rage. I'm so mad. Hate is a strong word. You and your cross-fit boyfriend better stay away from me, please. I will end up in jail. You guys stay away. I'm very mad. Leave me alone.
"...
"Please don't get a restraining order. That will only make things worse."

In early January of 2017, after the plaintiff informed the defendant that she did not want their wedding photographs any more, he sent her a video showing him dousing the photographs with gasoline and burning them, making "a very large fire." Accompanying the video was a message saying, "Look what you did now. I hope you are happy now."

The most recent incident was on Sunday, February 5, 2017, at 9 A.M. The plaintiff testified that the defendant had shown up at her front door. She "argued with him for probably two to three minutes telling him he didn't belong [t]here, [she] didn't want him [t]here," but he verbally "coerced" and "manipulate[d]" his way in, saying "[h]e just wanted to talk." She testified that, once inside:

"He kept grabbing me. I was walking all around my apartment.... [H]e cornered me[,] hugging me. I was pushing him away. He followed me into my living room. Everywhere I went, he followed me and kept hugging me and grabbing me. And then he pulled my pants down."

She went into the bathroom, "overwhelmed and stressed and [not knowing] what to do"; she put her pants back on.

When she came out of the bathroom, "he was laying in [her] bed naked." "He wasn't leaving until [she] had sex with him." She "continually said [she] was not having sex with him," that she "didn't want to have sex with him," and that she "didn't want to see him" and "he had no business being there." She went over to the bed and he took her shirt off. "He was not leaving unless [she] had sex with him." "It just happened."

Defense counsel pressed the plaintiff:

Q: "Did your ex-husband physically force you to have sex?"
A: "It is a pretty gray area."
Q: "I'm going to suggest it is a yes or a no. Did he force you physically to have sex?"
A: "Yes."

Defense counsel followed up, asking among other things if the defendant had threatened the plaintiff, to which she replied, "[h]ave you seen the man's size? ... He was not leaving my apartment." "You see the size discrepancy here? ... He was following me around my apartment hugging me, smothering me as I pushed him away." Eventually, he left. The next day, the plaintiff applied for the G. L. c. 209A order.

The plaintiff further testified that she remained "concerned about [her] physical safety," whether in her apartment or at the grocery store; she was "scared to go about life because [she didn't] know where he's going to turn up. He's not a stable man."

Defense counsel was able to elicit other statements from the plaintiff that undercut or even contradicted some of the testimony recounted above. The defendant also testified, stating that he had never threatened or physically harmed the plaintiff and that all of their sexual activity was consensual. Had the judge chosen to credit these statements, no order would have been appropriate.

Nevertheless, it was for the judge to evaluate the demeanor and credibility of the witnesses, to decide whom to believe and which parts of each witness's testimony to believe. We cannot second-guess those determinations. A judge is not required to wait for an actual incident of serious physical harm to occur before concluding that a plaintiff reasonably fears that such harm is imminent and that issuance of the order is warranted. We therefore affirm the order dated February 17, 2017.

So ordered.

Affirmed.

      The record gives no further explanation of the acronym "TDO."


text:
    COMMONWEALTH v. Randy A. VELEZ.
    16-P-1094
    Appeals Court of Massachusetts.
    Entered: March 5, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Randy A. Velez, appeals from his convictions of violation of an abuse prevention order and assault and battery on a household member. On direct appeal, the defendant makes no argument of trial error. Accordingly, the judgments are affirmed.

The only issue briefed by the defendant is that a judge of the District Court abused his discretion in denying a posttrial motion for funds for additional investigative work prepatory to the filing of a motion for new trial. The defendant has filed no appeal from the denial of the motion, and consequently there is no matter before us to act upon.

Judgments affirmed.


text:
    James KANE & others v. Thomas MARTEL & others.
    16-P-1533
    Appeals Court of Massachusetts.
    Entered: March 5, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Irene Kane, Valerie B. Robin, Brian J. Cavanaugh, John Annello, Cassandra Annello, Stacy A. Dow, Alfred Cox, Edythe Cox, Mark G. Patrolia, Gayle Callahan, Neil Flaherty, and Alanna Whelen.

      Dawn Martel and Andrew Schlosberg.

   The defendants, Thomas and Dawn Martel and Andrew Schlosberg, appeal from a third amended judgment issued by a judge of the Land Court in a dispute involving ownership of, and access to, a beach in Hingham Harbor situated near the parties' homes. Concluding that all of the remaining plaintiffs hold easement rights to access and use the beach, effective by deed and implication, we affirm.

1. Background. For a detailed factual background of the dispute over the beach and walkways, we refer to the Land Court judge's initial decision entered on December 12, 2007, and his third revised decision dated August 3, 2016. On remand from this court, see Crow Point Community Club v. Martel, 88 Mass. App. Ct. 1103 (2015), the judge found that all named plaintiffs-those on lots A through I tracing title directly through William Daley, as well as those on lots J through P tracing title through the April, 1929, deed conveying those lots to Thomas J. Higgins-to be beneficiaries of the deeded rights conveyed through the May, 1929, deed. The judge adjudicated the scope of those rights accordingly.

2. Standard of review. On appeal from a trial court judgment, we review a judge's findings only for clear error, Brandao v. DoCanto, 80 Mass. App. Ct. 151, 156 (2011), but review conclusions of law de novo. Martin v. Simmons Properties, LLC, 467 Mass. 1, 8 (2014). As the defendants here do not challenge any factual findings, we limit our discussion to the Land Court judge's application of law.

3. Deeded easement rights. An easement is appurtenant to land where it is created to benefit the land and benefits the possessor in the use of that land. Denardo v. Stanton, 74 Mass. App. Ct. 358, 361 (2009). Appurtenant easements attach to and run with the land intended to benefit thereby (the dominant estate), and consequently benefit subsequent possessors of that property. Schwartzman v. Schoening, 41 Mass. App. Ct. 220, 223 (1996). If expressly granted by deed, the instrument must only reasonably identify the dominant and servient tenements and the easement itself. Haugh v. Simms, 64 Mass. App. Ct. 781, 784-785 (2005).

"The general principle governing the interpretation of deeds is that the intent of the parties is 'ascertained from the words used in the written instrument interpreted in the light of all the attendant facts.' " Perry v. Nemira, 91 Mass. App. Ct. 12, 17 (2017), quoting from Hickey v. Pathways Assn., Inc., 472 Mass. 735, 744 (2015). When the deed's language, however, "is 'clear and explicit, and without ambiguity, there is no room for construction, or for the admission of parol evidence, to prove that the parties intended something different.' " Hamouda v. Harris, 66 Mass. App. Ct. 22, 25 (2006), quoting from Cook v. Babcock, 7 Cush. 526, 528 (1851).

There is no ambiguity in the deed at issue. The May, 1929, deed expressly grants easement rights to "[Daley], and to those claiming under him as their respective interests may appear as appurtenant to the land on Downer Avenue and Jarvis Avenue ... conveyed to said Daley by George A. Cole by deed dated March 5, 1929" (emphases supplied). The grantor explicitly intended the easement to be appurtenant and to benefit the land on Downer and Jarvis Avenues conveyed in the March, 1929, Daley-Cole deed as the dominant estate. The easement runs with the land, and benefits all possessors of those lots. The May, 1929, deed also identifies the easement as granting recreational use of "the beach and shore of Hingham harbor opposite the end of Melville Walk and Lot 1 on [the 1897 Plan]" (the servient estate). Given that it would be inconsistent with the intention of the grantor to provide for the use of the beach while denying the necessary access to do so, it is well-established that the conveyance must include access rights through an implied easement. See Murphy v. Olsen, 63 Mass. App. Ct. 417, 423-424 (2005). All the plaintiffs in this appeal claim under Daley as owners of lots within the dominant estate, and thereby hold easement rights to access the beach as conferred by the May, 1929, deed.

Moreover, the fact that Daley conveyed lots presently owned by certain plaintiffs to Higgins, prior to the May, 1929, deed, does not invalidate the rights of those plaintiffs. This case does not involve a chain-of-title defect in the grantor of a purported easement, see Dalessio v. Baggia, 57 Mass. App. Ct. 468, 469-472 (2003), as the defendants do not dispute that the Downer estate retained access rights in their predecessors' property at the time of the May, 1929, deed. Nor do the defendants claim a title defect such that the encumbrance imposed on their property could not be reasonably ascertained. See Devine v. Nantucket, 449 Mass. 499, 507 (2007). Indeed, the defendants were well aware that the May, 1929, deed subjected their property to easements at the time of its conveyance. Rather, the defendants argue that the easement's grantees cannot include those plaintiffs tracing title through Higgins because they are outside Daley's record title chain.

Appurtenant easements, however, are not required to be recorded in the grantees' title. Cheever v. Graves, 32 Mass. App. Ct. 601, 606 (1992) ("[T]he fact that no easement rights ... are expressly recited in the [grantees'] chain of title is of no significance"). Similarly, the grantee owner or successors in interest of the dominant estate need not be specifically or even correctly identified at the time of conveyance. See Reagan v. Brissey, 446 Mass. 452, 458-461 (2006) (reference to subdivision plan sufficient to deed easements appurtenant to specific lots). Rather, it is required only that the dominant and servient estates be reasonably ascertainable. See Haugh, 64 Mass. at 785. Likewise, "[w]hether a way is appurtenant to land depends upon its relation to the land in respect of use, and not upon any correspondence with the title of the owner in respect of duration." Dennis v. Wilson, 107 Mass. 591, 594 (1871). Once the appurtenant property is identified, "[a]n easement is to be interpreted as available for use by the whole of the dominant tenement existing at the time of its creation." Matthews v. Planning Bd. of Brewster, 72 Mass. App. Ct. 456, 465 (2008), quoting from Pion v. Dwight, 11 Mass. App. Ct. 406, 410 (1981). It is thus irrelevant whether the plaintiffs trace title through Daley or Higgins, because they all possess property comprising the dominant estate at the time of the May, 1929, deed and in relation to use of the beach.

4. Implied easement rights. "[R]ights and appurtenant easements pass by grant without specific mention," Cheever, 32 Mass. App. Ct. at 606 ; they belong to the granted estate and are implicitly "included in the conveyance, unless the contrary shall be stated in the deed." G. L. c. 183, § 15. It is therefore of no consequence that the May, 1929, deed did not expressly grant access rights in Melville Walk.

Furthermore, there is no general prohibition against the conveyance of implied easements; rather, "[w]hen an easement ... is created, every right necessary for its enjoyment is included by implication," Murphy, 63 Mass. App. Ct. at 423, quoting from Anderson v. De Vries, 326 Mass. 127, 134 (1950), and thus "[a] conveyance of an easement will include a right of access to the easement." Id. at 424, quoting from Restatement (Third) of Property, Servitudes § 2.15 comment b (2000). See Labounty v. Vickers, 352 Mass. 337, 346 (1967) ("[Plaintiffs'] predecessors in title owned an [implied] easement in the land of the defendants' predecessors in title and that easement passed to the plaintiffs by the deeds of their predecessors"); Reagan, 446 Mass. at 454, 458-459 (easement by necessity, conveyed by deed, granted present-day owners of appurtenant property right to use parks otherwise owned by grantor's heirs). Thus, as it is now established that the Downer estate retained an easement by implication in Melville Walk, the deed thereby conveyed the same easement by implication across the defendants' property to the lots now owned by the plaintiffs. Any subsequent conveyance included all rights belonging to those properties under G. L. c. 183, § 15, including the implied rights necessary to access the beach. See Murphy, 63 Mass. App. Ct. at 423.

It is not the case, likewise, that the Downer estate impermissibly imposed an easement across a servient estate it did not own at the time, as the defendants suggest. Rather, the May, 1929, deed conveyed a preexisting easement across the defendants' land, imposed by implication and attached as intended to the plaintiffs' current property within the dominant estate.

The Downer estate retained lots opposite Melville Walk through 1924, including the properties now owned by the plaintiffs. We previously noted that the "use of a way for access preceding severance of the dominant parcel from the servient way will support the creation of an easement by implication," Kane v. Vanzura, 78 Mass. App. Ct. 749, 756 (2011), while observing that "Downer, and those claiming through his estate, would have used Melville Walk for access to the beach," prior to the conveyance of the servient estate to the defendants' predecessors beginning in 1897. Id. at 757. The implied access rights, therefore, were appurtenant to the lots now owned by the plaintiffs at the time of the easement's creation in 1917, when the Downer estate conveyed the last of its interest in Melville Walk and severed its common ownership of the dominant and servient estates. The subsequent conveyance to the plaintiffs' predecessors, claiming through the Downer estate, would by implication include those preexisting access rights. See Murphy, 63 Mass. App. Ct. at 423. The May, 1929, deed did not, then, improperly impose a new easement across property no longer owned by the Downer estate, but expressly conveyed one that already validly existed over the defendants' land and appurtenant to the plaintiffs' property from inception.

Indeed, as both the deed and attendant circumstances here demonstrate, see Labounty, 352 Mass. at 344, the plaintiffs' properties have at all relevant times comprised the dominant estate. Cf. Taylor v. Martha's Vineyard Land Bank Commn., 475 Mass. 682, 686 (2016) (easement may not be used to benefit estate other than dominant estate). The easement, in this respect, is not alleged to be overburdened, given that the plaintiffs seek access only for the use of their rights in the beach as granted, see Hamouda, 66 Mass. App. Ct. at 28-29 ; nor is it overloaded.

As more fully discussed in the Land Court judge's third revised decision, and consistent with the preceding analysis, the 1879 indenture and subsequent conception of the 1897 plan illustrate the intent of the parties to provide the properties now owned by the plaintiffs with the appurtenant use of the beach as part of a planned seaside community. Thus, when the plaintiffs' predecessors purchased that property in 1924, it was part of the dominant estate in regard to the implied easement across the defendants' property.

The May, 1929, deed confirms this intention by expressly granting use of the beach to those particular lots only months before the expiration of the nearly-identical rights conferred in the 1879 indenture. To now invalidate the implied easement would effectively extinguish all other rights in the beach, contrary to the express intent of the parties and rendering the plaintiffs' rights in the beach useless. See Kline v. Shearwater Assn., Inc., 63 Mass. App. Ct. 825, 831 (2005), quoting from Maddalena v. Brand, 7 Mass. App. Ct. 466, 469 (1979) (easements construed to avoid results "inconsistent with what was meant by the parties to or the framers of the instrument"). See also Perry, 91 Mass. App. Ct. at 18 (interpreting deed to include implied access rights where expressly-granted easement would otherwise be "utterly useless" to owner). We decline to do so.

In short, the Downer estate effectively conveyed the rights it purported to through the May, 1929, deed expressly and by implication. The plaintiffs, as successors in interest to the owners of property within the dominant estate at all relevant times, thereby hold implied easement rights to access the beach across the defendants' property to the extent determined by the unchallenged findings of the Land Court judge.

Third amended judgment affirmed.

      The original plaintiffs were James and Irene Kane, Donald and Geraldine Mann, and the Crow Point Community Club, to which Melinda Ponder, Ronald C. Cates, Dana Malcolm, Richard and Virginia McCourt, Maryanne Campbell, Arthur W. Handrahan, Stacey A. Dow, Robert P. and Anne D. Masland, Alfred and Edythe Cox, Mark G. Patrolia, Gayle Callahan, Anthony and Kathleen Arnold, Mary T. Dillon, Margaret S. Iser, and Charles J. and Carol A. Murray were later added. This appeal, however, concerns only the "deeded rights plaintiffs." Cates, Malcolm, the McCourts, the Maslands, and Iser were previously dismissed from this action on directed verdicts against their claims of prescriptive rights in the disputed property. Campbell, Handrahan, Dillon, and the Murrays hold prescriptive rights and are not parties to this appeal. The Crow Point Community Club was dismissed from this action by agreement of the parties. Furthermore, Valerie B. Robin and Brian J. Cavanaugh now own the Manns' former property, John and Cassandra Annello now own Ponder's former property, and Neil Flaherty and Alanna Whelan now own the Arnolds' former property.

      We previously addressed this litigation in Kane v. Vanzura, 78 Mass. App. Ct. 749 (2011). There, we reversed part of the initial decision issued by the Land Court judge regarding ownership of the fee interest in the beach and held that the Downer estate, at the time of the May, 1929, deed conveying rights to use and access the beach, possessed the rights that it purported to convey by that deed. Id. at 754-755. In the second revised decision, dated May 16, 2014, the Land Court judge held on remand that interpreting the May, 1929, deed required (1) determining the identity of the deeded rights plaintiffs; and (2) determining what rights they hold. The judge, however, concluded that both issues required the Downer estate as a necessary party and deferred further determination of the matter. On subsequent appeal, we vacated that portion of the decision and again remanded to the Land Court to determine (1) which of the parties claiming to be "deeded rights plaintiffs" actually had rights to access and use the beach; and (2) the scope of those rights. See Crow Point Community Club, 88 Mass. App. Ct. at 1103. The Land Court judge then issued the third revised decision and third amended judgment on August 3, 2016.

      The original defendants to this action included Robert and Cynthia Stimson, Michael and Mary Donahue, Amyra O'Connell, and George and Martha Schwartz. O'Connell was dismissed as a party to the action prior to this appeal, and the plaintiffs no longer claim any right adverse to the Schwartz property. During the pendency of this action, moreover, the Stimsons conveyed their property to Cedric and Elizabeth Vanzura, who were substituted as defendants. The Vanzuras then sold that property to Thomas and Dawn Martel, who have been substituted for the Vanzuras with the permission of the Land Court and are current defendants in this appeal. Likewise, the Donahues conveyed their property to Andrew Schlosberg, who was substituted for the Donahues and is a current defendant in this appeal.

      See Taylor, 475 Mass. at 685 n.11, quoting from Southwick v. Planning Bd. of Plymouth, 65 Mass. App. Ct. 315, 319 n.12 (2005) ("We 'use[ ] "overburden" to describe only use of an easement for a purpose different from that intended in the creation of the easement, [and] "overload" to describe the situation ... where an appurtenant easement is used to serve land other than the land to which it is appurtenant' ").


text:
    COMMONWEALTH v. James SCHAFF.
    17-P-120
    Appeals Court of Massachusetts.
    Entered: March 5, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, James Schaff, appeals from an order denying his motion for a new trial seeking to vacate his guilty plea to one count of failing to register as a sex offender, subsequent offense. , We affirm.

Background. The following facts are drawn from the motion judge's memorandum of decision and order. The defendant is classified by the Sex Offender Registry Board as a level three offender. On Friday, February 15, 2013, he was released from incarceration on an unrelated offense. Although the defendant indicated on an incarcerated sex offender registry form that he was homeless and would likely stay at a Boston homeless shelter, he traveled to Wrentham and, at 4:00 P.M. , arrived at the home of Jayne Miller. She and the defendant had been pen pals whose exchanges had become romantic; they had discussed the potential of living together.

The defendant slept at Miller's home for three nights. On Monday, February 18, 2013, he appeared at the Wrentham police station to register as a sex offender. The defendant indicated in the "current resident address" space that he was homeless and drew a line through the "secondary address" space. He returned to Miller's home for a fourth night.

On Tuesday, February 19, 2013, at 4:00 A.M. , Miller called the Wrentham police regarding a domestic disturbance between herself and the defendant. The defendant told a responding officer that "I guess I'm living here" and that "I just got out of jail a few days ago and I really haven't thought about it, but I guess I'll be getting my mail here." Officers told the defendant that he could not remain at the apartment and, after the defendant told them that he was homeless, took him to the Wrentham police station to sleep in the lobby. After a sergeant arrived at 8:00 A.M. and learned that the defendant had been staying at Miller's since February 15, the defendant was arrested.

Discussion. A motion for a new trial may be allowed when "it appears that justice may not have been done." Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). The motion "is addressed to the sound discretion of the judge, and the judge's disposition of the motion will not be reversed for abuse of discretion unless it is manifestly unjust, or unless the plea colloquy was infected with prejudicial error." Commonwealth v. Correa, 43 Mass. App. Ct. 714, 716 (1997) (citations omitted). The defendant argues that plea counsel's ineffective assistance warrants a new trial. We review the defendant's motion by applying the familiar two-part test for ineffective assistance: (1) whether the defendant demonstrated "serious incompetency, inefficiency, or inattention of counsel-behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer"-and, if found, (2) whether counsel's poor performance "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

A. Failure to register. The defendant does not dispute that he was required to register as a sex offender, but contends that he did not fail to register as required by the registration statute. When registering, a sex offender is required to provide information of any home address and any secondary addresses. Commonwealth v. Arce, 467 Mass. 329, 332 (2014). A secondary address is defined, in relevant part, as "a place where a sex offender routinely lives, abides, lodges, or resides for a period of 4 or more consecutive or nonconsecutive days in any month and which is not a sex offender's permanent address, including any out-of-state address." G. L. c. 6, § 178C, as amended by St. 2006, c. 139, § 5. See Arce, supra at 333 (defining "live," "abide," "lodge," and "reside" by the plain and ordinary meaning of the words). "A defendant who is required to register as a sex offender fails to do so if he knowingly fails to provide notice of a change of address, or knowingly provides false information." Id. at 332, citing G. L. c. 6, § 178H(a ).

The defendant contends that plea counsel was ineffective for failing to argue that the defendant did not fail to list a "secondary address" because he did not "routinely" stay at Miller's home as required under the registration statute. This argument fails for two reasons. First, the recited evidence was sufficient to support the Commonwealth's alternate theory that the defendant knowingly provided false information both by (1) listing himself as homeless and intending to reside in Boston when he filed the incarcerated sex offender registry form but proceeding directly to Wrentham, and (2) misleading the Wrentham police by reporting himself as homeless.

Second, as the motion judge discussed in a well-reasoned decision, plea counsel did argue that Miller's home was not a "secondary address" for purposes of the statute. The defendant filed two motions to dismiss in Superior Court, both of which were denied. Plea counsel represented the defendant on the second motion to dismiss and challenged the indictments. In denying the motion, the judge specifically considered whether there was probable cause for the indictment and properly concluded that the defendant's four-night stay at Miller's could establish a secondary address. See Commonwealth v. Kateley, 461 Mass. 575, 581 (2012) ("[I]n order for the Commonwealth to prove beyond a reasonable doubt that the defendant failed to provide a secondary address, it had to show that the defendant stayed at an address ... for four or more days in a month"); Arce, supra at 333 ("[U]nder the broadest definition afforded by the statute, the Commonwealth must show that the defendant 'lodged' at the apartment by 'stay[ing] overnight' for four days"). The word "routinely" in the statute modifies "lives, abides, lodges, or resides" and does not mean more than one four-day period in a given month. Therefore, the defendant's stay at Miller's, from Friday through Tuesday morning, established a secondary address.

Additionally, this issue also was considered at the plea colloquy. After the Commonwealth recited the facts of the case, plea counsel added that the defendant told the officers that he was homeless. The defendant then began to question if he was at Miller's for the required four days. The plea judge stopped the colloquy to "make it absolutely crystal-clear" that the defendant had a right to a trial. The defendant confirmed that he understood his rights and that he chose to plead guilty. He affirmed that he had enough time to speak with plea counsel, that he was fairly represented, and that he was satisfied with plea counsel's handling of the case. Seeking a "clear record," the plea judge asked the Commonwealth for additional information to establish that there was an adequate basis for the guilty plea. The defendant then further conferred with plea counsel before the judge accepted the plea and concluded the colloquy. We therefore discern no error in the motion judge's conclusion that the defendant failed to satisfy the first Saferian prong.

As to the second prong, the defendant's own affidavit states that he pleaded guilty "only because it became obvious to me and my attorney that I would be convicted at a trial where I would likely receive[ ] a minimum sentence of five years." By accepting the plea, the defendant was sentenced to one year of straight probation with conditions. Accordingly, the defendant did not support that "he would have rejected the plea but for the incompetent advice of counsel." Commonwealth v. Pike, 53 Mass. App. Ct. 757, 763 (2002). We discern no abuse of discretion in the denial of the motion.

B. Grand jury. The defendant also contends that the Commonwealth improperly provided the grand jury with evidence that the defendant was previously incarcerated. To the extent that the defendant argues that the grand jury were impaired by evidence of his prior incarcerations, the defendant waived all nonjurisdictional defects in the indictment upon his guilty plea, pursuant to G. L. c. 277, § 47A. See Commonwealth v. Zion, 359 Mass. 559, 563 (1971).

To the extent that the defendant argues that plea counsel was ineffective for failing to raise this issue in a motion to dismiss, that argument is equally unavailing. "Dismissal of an indictment based on impairment of the grand jury proceedings requires proof of three elements: (1) the Commonwealth knowingly or recklessly presented false or deceptive evidence to the grand jury; (2) the evidence was presented for the purpose of obtaining an indictment; and (3) the evidence probably influenced the grand jury's decision to indict." Commonwealth v. Carr, 464 Mass. 855, 867 (2013) (quotation omitted).

Moreover, "[i]t is not ineffective assistance of counsel when trial counsel declines to file a motion with a minimal chance of success." Commonwealth v. Conceicao, 388 Mass. 255, 264 (1983). Plea counsel was not ineffective for not arguing that the grand jury received evidence that the defendant was previously incarcerated. The Commonwealth introduced prior registration forms signed by the defendant indicating that he was advised of his registration duties, including incarcerated sex offender registration forms that the defendant previously completed. The Commonwealth did not introduce evidence of the defendant's prior convictions, but properly demonstrated his awareness of the registration requirement using the previous registration forms. See Commonwealth v. Scipione, 69 Mass. App. Ct. 906, 907 (2007). Additionally, the Commonwealth advised the sergeant who testified not to answer questions from grand jurors about the defendant's criminal history, and the sergeant did not respond to those juror questions. Of course, the grand jury did know that the defendant was a convicted sex offender because of the nature of the indictment. The Commonwealth twice instructed the grand jury that they were not to infer that the defendant committed this offense based on his sex offender status, previous convictions, or periods of incarceration, and that they were not to speculate whether the defendant was previously convicted of like offenses.

We discern no abuse of discretion in the denial of the defendant's motion for a new trial.

Order denying motion for new trial affirmed.

Order revoking probation and imposing sentence affirmed.

      A grand jury indicted the defendant on one count of failure to register as a sex offender and one count of failure to register as a sex offender, subsequent offense. The first charge was dismissed as merged with the second upon the guilty plea.

      After his plea but before his motion for a new trial was filed and denied, the defendant was found in violation of his straight probation, resulting in revocation and imposition of a committed sentence. The defendant's appeal from the revocation and sentencing order is also before us in this consolidated appeal, but as the defendant advances no argument on this subject, we affirm the order without further discussion.

      A secondary address also includes "all places where a sex offender lives, abides, lodges, or resides for a period of 14 or more days in the aggregate during any calendar year and which is not a sex offender's primary address." G. L. c. 6, § 178C.

      Plea counsel did not represent the defendant on the first motion to dismiss. The defendant did not provide an affidavit from either of his previous attorneys.

      In the second motion to dismiss, the defendant argued that he stayed at Miller's for three nights, that he did not establish a secondary address, that the indictments were not supported by probable cause, and that the registration statute was void for vagueness as applied to the defendant.

      As noted, the defendant was later found in violation of the terms and conditions of his probation and, as a result, his probation was revoked and he was sentenced to five years to five years and one day committed.

      To the extent that the defendant raises ineffective assistance based on plea counsel failing to argue that the sergeant stated erroneous conclusions of fact and law in his grand jury testimony, the defendant already raised this argument in his first motion to dismiss. That motion was denied. Moreover, the sergeant's testimony that the defendant stayed at Miller's apartment for four days was not improper where how many days the defendant stayed at Miller's was an element of the offense.


text:
    AIMCO NORTH ANDOVER, LLC v. Ron DELUCA & others.
    17-P-53
    Appeals Court of Massachusetts.
    Entered: March 5, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Michelle Deluca and Robert Deluca. Neither Michelle Deluca nor Robert Deluca filed a notice of appeal from the summary process judgment, nor did either attempt to enter an appeal in this court. Accordingly, the only proper appellant before us is Ron Deluca. However, the only brief filed in this court was purportedly submitted by Robert Deluca, who is not a proper party to this appeal. As a result, we could deem the appeal of Ron Deluca waived on this basis alone. As discussed infra, there are numerous other bases upon which we deem Ron Deluca's appeal to have been waived.

   The defendant Ron Deluca has appealed from a summary process judgment granting possession to the plaintiff landlord. Despite the allowance of numerous extensions to bring his brief in conformity with the appellate rules, the defendant's submission is so inadequate that it prevents our meaningful review of this appeal.

We have reviewed the trial court judge's findings, rulings, and order for judgment contained in the addendum to the plaintiff's brief. The judge found the defendant was evicted for failing to disclose, as required by the plaintiff's rental application, that he had previously been convicted of a sex offense. The defendant admitted that his answer on the application was incorrect or false, but claimed that he was told to provide the false information by an employee of the plaintiff. The judge found the testimony concerning the defendant's claim not credible.

Although the defendant's brief has no formal argument section, his statement of the facts indicates that he disagrees with the trial judge's factual findings and credibility assessments. We are unable to review his claims of error, however, as the defendant's submission to this court does not contain a record appendix. Consequently, we are unable to determine whether any claims of error "were adequately raised and preserved" at trial, see Davis v. Tabachnick, 425 Mass. 1010, 1010 (1997) (court declined to address merits of claims where record appendix did not contain necessary materials), nor can we assess any argument concerning the inadequacy of the judge's findings or the weight or sufficiency of the evidence. See Buddy's, Inc. v. Saugus, 62 Mass. App. Ct. 256, 264 (2004) (lack of transcript of trial precluded review of judge's decision which was based on evidence at trial).

Finally, as noted, the brief does not contain a substantive argument section, does not contain citation to any legal authority, and consequently does not rise to the level of appellate argument as required by Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975) (briefs "shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to authorities, statutes and parts of the record relied on"; "court need not pass upon questions or issues not argued in the brief"). See Kellogg v. Board of Registration in Med., 461 Mass. 1001, 1003 (2011) (failure to support claims of error with sufficient legal argument, factual detail, or citation to authority; appellant's submissions provided "an insufficient basis for [the] court reasonably to consider [the appellant's] claims"). That the defendant is proceeding pro se does not alter the result. See Davis v. Tabachnick, supra.

As the defendant has provided this court with no record appendix of the proceedings below and no argument compliant with Mass.R.A.P. 16(a)(4), he has waived any issue he might have had on appeal. The judgment is, accordingly, affirmed. The plaintiff's request for fees is denied.

Judgment affirmed.


text:
    Sophia FALDONIE v. The CHILDREN'S HOSPITAL CORPORATION.
    17-P-484
    Appeals Court of Massachusetts.
    Entered: March 5, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The plaintiff appeals from the dismissal of her negligence complaint for failure to effect service within the time permitted by Mass.R.Civ.P. 4(j), as appearing in 402 Mass. 1401 (1988). We affirm.

Background. On June 2, 2016, the plaintiff filed a complaint in the Superior Court alleging that the defendant's negligence caused her to sustain injuries in a June 4, 2013, fall on the grounds of Boston Children's Hospital. Under Mass.R.Civ.P. 4(j), the plaintiff was required to serve the complaint upon the defendant within ninety days, on or before August 31, 2016. On August 8, 2016, plaintiff sent the summons and complaint to the Suffolk County sheriff's department (sheriff) for service; on August 17, the sheriff notified the plaintiff that she had improperly addressed the summons to herself. The same day, the plaintiff sent the sheriff the complaint and a corrected summons. The documents were accompanied by a letter requesting that the sheriff "[k]indly effectuate service on the defendant as soon as possible."

The sheriff did not serve the defendant until September 19, 2016, almost three weeks after the deadline. The defendant filed a motion to dismiss pursuant to Mass.R.Civ.P. 12(b)(5), 365 Mass. 745 (1974), which the judge allowed, reasoning that the plaintiff had failed to demonstrate good cause for the delay in service.

Discussion. Rule 4(j) mandates dismissal of complaints served outside the ninety-day limit unless a plaintiff demonstrates "good cause." The determination of good cause is left to the motion judge's discretion. See Shuman v. Stanley Works, 30 Mass. App. Ct. 951, 952-953 (1991). "Good cause is a stringent standard requiring diligen[t] albeit unsuccessful effort to complete service within the period prescribed by the rule." Commissioner of Rev. v. Carrigan, 45 Mass. App. Ct. 309, 311 (1998) (quotation omitted). See Nett v. Bellucci, 437 Mass. 630, 640 n.8 (2002). "The focus of the court's inquiry [as to good cause] is the reasonableness and diligence of counsel's effort to effect service within the time required." Carrigan, supra at 312, quoting from Shuman, supra at 953.

Here, the record does not establish reasonable diligence by the plaintiff. The majority of the ninety-day period had elapsed before service was initiated. Two weeks before the deadline, the plaintiff was informed by the sheriff that the summons was not correct. After correcting the error and asking for service "as soon as possible," the plaintiff did nothing more to inform the sheriff of the impending deadline, or otherwise ensure timely service. Mere reliance on a process server does not constitute good cause. See Shuman, supra; Carrigan, supra at 314-315. Moreover, despite the looming deadline, the plaintiff failed to file a motion to enlarge the time for service, either before or after ninety days had passed. See Carrigan, supra at 314 ("[T]he plaintiff must take additional steps to ensure timely service of process, or, in the alternative, move under [rule] 6[b] for an enlargement of the time to effect service of process" [quotation omitted] ).

Plaintiffs have long been cautioned to "treat[ ] the ninety-day rule 4(j) period with the respect reserved for a time bomb." Carrigan, supra at 315 (quotation omitted). The plaintiff failed to do so here. In these circumstances, we discern no abuse of discretion in the judge's decision that the plaintiff failed to establish good cause.

Judgment affirmed.

      The plaintiff was represented by counsel throughout the proceedings.

      "If a service of the summons and complaint is not made upon a defendant within 90 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice ... upon motion." Mass.R.Civ.P. 4(j).

      We are not persuaded by the plaintiff's argument that the judge should have considered the fact that the complaint could not be refiled because the statute of limitations had run. Prejudice is not an appropriate consideration in deciding whether the plaintiff has shown good cause under rule 4(j). See Carrigan, supra at 315-316. Our decision in Ceruolo v. Garcia, 92 Mass. App. Ct. 185, 189 (2017), interpreting the term "good cause" in the context of Mass.R.Civ.P. 55(c), 365 Mass. 822 (1974), does not instruct otherwise. The difference between a dismissal without prejudice under rule 4(j) and entry of default judgment under rule 55 is plain, and equitable considerations that are "at their zenith in the [r]ule 55(c) milieu," ibid. (quotation omitted), are not considered in the context of rule 4(j).


text:
    TURNPIKE COMMERCIAL REAL ESTATE, INC. v. B.C. EXECUTIVE REALTY, INC. & others.
    17-P-782
    Appeals Court of Massachusetts.
    Entered: March 5, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Doing business as RE/MAX Executive Realty, Inc.

      Paulo C. deMatos and Karen L. deMatos. Default judgments entered against them. They are not parties to this appeal.

   This case involves a dispute over real estate commissions relating to the sale of two properties. The plaintiff, Turnpike Commercial Real Estate, Inc. (Turnpike) was the buyer's agent. The defendant, B.C. Executive Realty, Inc., doing business as RE/MAX Executive Realty, Inc. (RE/MAX), was the seller's agent. Turnpike filed a complaint in the Superior Court seeking a declaratory judgment that it was entitled to certain commissions. The parties filed cross motions for summary judgment. After hearing, Turnpike's motion was denied and RE/MAX's motion was allowed. Turnpike appeals, claiming error in the judge's application of the doctrine of judicial estoppel and in certain other aspects of the judge's analysis. We affirm.

Background. In 2011, RE/MAX obtained listings for two properties in Medfield, owned by Paulo and Karen deMatos (sellers). Both properties were encumbered by mortgages which exceeded their value. At the time of the sale, the loans were assigned to Nationstar Mortgage (Nationstar). Larkin Holdings, LLC (Larkin Holdings or buyer) purchased the properties. Because the sale price was less than the amount of the outstanding mortgages, the sellers were required to obtain Nationstar's approval for the short sales. As a condition to approving the short sales, Nationstar required all parties to execute short sale affidavits. The short sale affidavits were signed by the sellers; Michael Larkin on behalf of Larkin Holdings; the sellers' agent; and Patrick Larkin of Turnpike as the buyer's agent. The affidavits provided, in pertinent part, that "neither the Seller(s) nor the Buyer(s) will receive any funds or commission from the sale of the Property" and that "[t]here are no agreements, understandings or contracts relating to the current sale or subsequent sale of the Property that have not been disclosed to the Servicer." The closing attorney sent an electronic mail message (e-mail) to the parties informing them that Patrick Larkin had a twenty-five percent membership interest in Larkin Holdings. The parties agreed that in order to move forward with the closing, Turnpike would not receive a commission from the sale. The parties signed the short sale affidavits, the HUD-1 settlement statements were executed, and the transactions closed.

Discussion. On appeal, "[w]e review a grant of summary judgment de novo." Miller v. Cotter, 448 Mass. 671, 676 (2007). We look to the summary judgment record to determine "whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). See Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002).

RE/MAX was entitled to summary judgment and entry of a declaratory judgment awarding it the full commission. It was undisputed that the transactions were short sales which required Nationstar's approval. As a condition precedent, Nationstar required the parties to execute short sale affidavits with certain conditions. Turnpike did not object when, in order to comply with those conditions, it was agreed that it would not receive a commission. The undisputed facts do not support Turnpike's argument that summary judgment should have entered in its favor. Indeed, if RE/MAX had paid a commission to Turnpike after the closing, it would have constituted an end run around Nationstar's short sale requirements.

Turnpike makes several claims of error. First, the fact that Turnpike had previously disclosed Patrick Larkin's interest in Larkin Holdings is of no import. The timeliness of the disclosure was not the issue; rather, it was Nationstar's requirement that the buyer could not receive a commission. Similarly, Turnpike's claim that the judge improperly pierced the corporate veil is misplaced. The judge properly determined that Turnpike's execution of the short sale affidavits, its failure to object to the condition that it would not receive a commission, and the subsequent closings were the operative actions. Accordingly, there was no error.

Turnpike next contends that the judge erred in failing to apply the doctrine of judicial estoppel. Turnpike relies on an e-mail that was sent by RE/MAX's attorney to the seller's attorney, prior to this litigation. It stated that "[i]f Turnpike has not violated Massachusetts law by timely disclosure in writing of its interest in the buyer, RE/MAX will proceed to release Turnpike's commission." Because it had disclosed Patrick Larkin's interest in Larkin Holdings nearly eleven months prior to the closing, Turnpike argues that RE/MAX is judicially estopped from contesting Turnpike's entitlement to a commission. "Judicial estoppel is an equitable doctrine that precludes a party from asserting a position in one legal proceeding that is contrary to a position it had previously asserted in another proceeding." Otis v. Arbella Mut. Ins. Co., 443 Mass. 634, 639-640 (2005). In some instances, judicial estoppel is appropriate where litigants have asserted inconsistent positions in successive stages of the same litigation. Fay v. Federal Natl. Mort. Assn., 419 Mass. 782, 788 n.10 (1995). Because no such legal proceeding existed when the e-mail was sent and the statement was not made before the court, it cannot serve as the basis of judicial estoppel. See Paixao v. Paixao, 429 Mass. 307, 309 (1999). There was no error.

Judgment affirmed.

      Other arguments raised by Turnpike, but not discussed in this memorandum and order, have not been overlooked. We find nothing in them that requires discussion. Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).