text:
    COMMONWEALTH v. Levins FRANCOIS.
    17-P-764
    Appeals Court of Massachusetts.
    Entered: July 2, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury trial, the defendant, Levins Francois, was convicted of assault and battery by means of a dangerous weapon (bleach), in violation of G. L. c. 265, § 15A(b ). On appeal, the defendant contends that (1) there was insufficient evidence to support the conviction; (2) the defendant was prejudiced by inadmissible hearsay testimony for which no curative instruction was given; (3) the judge erred in not giving an eyewitness identification instruction; and (4) his counsel was ineffective for not requesting a curative or eyewitness jury instruction. We affirm.

Discussion. 1. Sufficiency of the evidence. We summarize the evidence presented at trial in the light most favorable to the Commonwealth. Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). Anushka Narcisse and the defendant had been in a dating relationship for several years. On the night of February 27, 2015, Narcisse was visiting the defendant at his house on Fuller Street in Dorchester. At around 10:00 P.M. , Robert Brown and Anthony Gonzalez saw Narcisse running from Fuller Street onto Morton Street. Narcisse was screaming, crying, and asking for help. A six-feet tall, dark-skinned man, who wore dreadlocks, and who was carrying a bottle of bleach, chased her. Narcisse fell or was pushed and was then straddled by the man, who then poured bleach on her. After emptying the bottle of bleach, the man ran from the scene.

Narcisse testified pursuant to a court order. She claimed that she was intoxicated and did not remember what happened after she tripped while running to catch a bus. As Brown and Gonzalez approached Narcisse, there was a strong odor of bleach and her clothes were fading. She did not smell of alcohol and did not appear to be intoxicated. A nearby emergency medical technician, Caitlin Waibel, observed Narcisse running from a pursuer, who dumped something over her. As Waibel approached, Narcisse was distressed, smelled of bleach, and had minor burns on her body. According to Waibel's partner, Kenneth Arienti, Narcisse was crying uncontrollably, smelled of bleach, and her clothing was damp and discolored. Upon arriving at the scene, Officer Ismael Sosa also observed that the liquid on the ground smelled like bleach and that Narcisse smelled like bleach and did not smell of alcohol.

Eight months later, Brown was asked to identify the man he saw pour bleach on Narcisse. Detective Erin Schroeder showed Brown a photographic array (photo array) of nine to twelve individuals. She used specific parameters for the photo array; she selected individuals who had roughly the same age, height, and other characteristics as the defendant, including dreadlocks. Brown picked a photograph of someone other than the defendant. At trial Detective Schroeder testified that after the photo array Brown stated, "I don't really remember what [the perpetrator] looked like. I was more concentrating on [Narcisse] on the ground."

The defendant contends that the evidence was insufficient, because there was no eyewitness identification and the remaining evidence was purely speculative. "Proof of the identity of the person who committed the offense may be established in a number of ways and it is not necessary that any one witness should distinctly swear that the defendant was the man, if the result of all the testimony, on comparison of all its details and particulars, should identify him as the offender." Commonwealth v. Blackmer, 77 Mass. App. Ct. 474, 483 (2010) (quotation omitted).

Narcisse was dating the defendant when she visited him at his home on Fuller Street on the evening of the crime. Thereafter, multiple witnesses viewed Narcisse screaming frantically while being chased down Fuller Street-the street on which the defendant lived. The assault occurred on Morton Street, in close proximity to the defendant's house. Narcisse was chased by a six-feet tall, dark-skinned man with dreadlocks carrying a bottle of bleach. The fact that the perpetrator was carrying a bottle of bleach-an item commonly used and stored in the household rather than carried on the street-gives support to the inference that the pursuer took the bleach from a nearby home, chased Narcisse down the street, and poured it on her.

The physical description of the assailant matched the defendant's appearance. Notwithstanding the lack of an in-court identification, the jury were able to see the defendant in the court room and compare his appearance to the descriptions given by the witnesses. See Blackmer, supra. The inferences made were reasonable, not speculative. See ibid. See also Commonwealth v. Jones, 477 Mass. 307, 316-318 (2017) (defendant's presence in area of crime, his lies to police evidencing consciousness of guilt, and similarity of his appearance with witnesses' descriptions was sufficient to identify defendant as shooter); Commonwealth v. Brennan, 74 Mass. App. Ct. 44, 48 (2009) (defendant identified as burglar based on circumstantial evidence including that defendant was in area at time crime occurred and had keys to burglary site). The judge correctly denied the defendant's motion for a required finding of not guilty.

2. Hearsay testimony. The defendant maintains that he was prejudiced by the following hearsay testimony by Officer Sosa.

PROSECUTOR : "And when you saw that liquid on the ground did you see anything on the woman that you were speaking with?"
OFFICER SOSA : "Yeah, the woman was apparently soiled; and I guess during the incident with her ex-boyfriend or boyfriend, whoever it was, the suspect it turned out to be later, it was relayed to us that he had poured bleach on her."
DEFENSE COUNSEL : "Objection."
THE COURT : "Okay. Objection sustained as to the statement that someone else made to the officer."

After the judge sustained the initial objection the defendant did not ask for a curative instruction or move to strike. The defendant claims that the judge erred in not giving a curative instruction sua sponte. Our review is limited to whether the judge erred, and if so, whether the error created a substantial risk of a miscarriage of justice. Cf. Commonwealth v. Murphy, 426 Mass. 395, 403 (1998) ; Commonwealth v. Marinho, 464 Mass. 115, 122 (2013).

The judge was not required to give a curative instruction in the absence of a request to do so. See Commonwealth v. Isabelle, 444 Mass. 416, 420 (2005). Furthermore, although Officer Sosa's answer that "it was relayed to us that [the defendant] had poured bleach on [Narcisse]" was hearsay, the adverse effect of the improper testimony was mitigated by the judge's jury instructions as a whole. The judge instructed the jury at the outset of trial and during his final jury instructions regarding the purpose of objections at trial. Moreover, he informed the jury to "not consider any answer that [he] struck from the record and told [them] to disregard." Although the judge did not explicitly tell the jury to disregard Officer Sosa's answer, the judge immediately stated: "Objection sustained as to the statement that someone else made to the officer." The jury are presumed to have "[a] certain measure of ... sophistication." Commonwealth v. Kozec, 399 Mass. 514, 517 (1987).

The defendant also asserts error in Officer Sosa's testimony that Narcisse told him that bleach was poured on her. Officer Sosa's statement that "it must have been that bleach because that's what she was saying was poured on" was hearsay. Even if counsel's objection was sufficient to reach the challenged testimony, the testimony did not prejudice the defendant as it was cumulative of other properly admitted evidence. See Commonwealth v. Wilson, 427 Mass. 336, 348 (1998).

3. Ineffective assistance. The defendant maintains that his counsel was ineffective when he failed to move to strike and request an instruction following Officer Sosa's hearsay testimony. To establish ineffective assistance of counsel, the defendant bears the burden of showing "that there has been a 'serious incompetency, inefficiency, or inattention of counsel-behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer,' and that counsel's poor performance 'likely deprived the defendant of an otherwise available, substantial ground of defence.' " Commonwealth v. Millien, 474 Mass. 417, 429-430 (2016), quoting from Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

The defendant "raises this issue for the first time on appeal, presenting the weakest form of such a challenge because it is bereft of any explanation by trial counsel for his[, her, or their] actions and suggestive of strategy contrived by a defendant viewing the case with hindsight." Commonwealth v. Beaulieu, 90 Mass. App. Ct. 773, 781 (2016) (quotation omitted). Defense counsel could have concluded there was a risk that a curative instruction would draw further attention to Officer Sosa's statement. See Commonwealth v. Lao, 460 Mass. 12, 21 (2011). "For that reason, we are unable to determine whether defense counsel's asserted failures may in fact have been the considered product of a tactical decision," and the defendant has failed to establish that his counsel was ineffective. Beaulieu, supra (quotation omitted).

4. Jury instructions. For the first time on appeal the defendant contends that the judge erred by failing to instruct the jury sua sponte on eyewitness identification pursuant to Commonwealth v. Rodriguez, 378 Mass. 296, 310-311 (1979), S.C., 419 Mass. 1006 (1995), and its progeny. In addition, he maintains that his counsel was ineffective for failing to request an eyewitness identification instruction. We review both claims for a substantial risk of a miscarriage of justice. See Commonwealth v. Navarro, 474 Mass. 247, 248-249 & n.1 (2016) ; Commonwealth v. Willard, 53 Mass. App. Ct. 650, 659-660 (2002).

The Commonwealth's evidence of identity was circumstantial. No eyewitness identification was made. The judge was not obligated to give a partial or modified instruction. See Commonwealth v. Johnson, 470 Mass. 389, 398 (2015). The witnesses testified to generic details about the defendant's height, race, and hairstyle that did not convey "details so specific to the defendant that they essentially serve as a partial eyewitness identification." Id. at 395 n.11.

The defendant also maintains that the judge should have given an eyewitness identification instruction because Brown failed to identify the defendant in a photo array. "Where there is no incriminating eyewitness identification testimony, a witness's failure to identify the defendant is not part of the jury's evaluation of identification evidence but simply exculpatory evidence indicating that the defendant was not the perpetrator, which the jury may weigh in light of the totality of the evidence." Johnson, supra at 396. Even where requested, a "judge [does] not abuse his discretion by declining to give an identification instruction where there was no positive eyewitness identification or other eyewitness testimony that significantly incriminated the defendant." Id. at 398. For these same reasons, we see no basis for a claim of ineffective assistance of counsel.

Judgment affirmed.

      Brown and Gonzalez were in a vehicle driving down Morton Street.

      "Circumstantial evidence is competent to establish guilt beyond a reasonable doubt." Commonwealth v. Cotto, 69 Mass. App. Ct. 589, 591 (2007) (quotation omitted). "While the inferences drawn must be reasonable, they 'need not be necessary or inescapable.' " Commonwealth v. Merry, 453 Mass. 653, 661 (2009), quoting from Commonwealth v. Grandison, 433 Mass. 135, 140-141 (2001).

      The jury were also permitted to disbelieve Narcisse's testimony that she was drunk and could not remember what happened. In this domestic violence matter, that the loss of memory was grounded in fear was "a permissible inference" for the finder of fact. Commonwealth v. Fitzgerald, 376 Mass. 402, 413 (1978). Although disbelief of her testimony would not be enough, alone, to sustain the Commonwealth's burden of proof of identity, see Cahaly v. Benistar Property Exch. Trust Co., 451 Mass. 343, 352-358 & n.31 (2008), the jury were permitted to consider "the possibility that fear was the explanation" in evaluating the other evidence. Fitzgerald, supra.

      He instructed the jury that "evidence consists of the testimony of witnesses ..., any documents or other things that were received into evidence as exhibits and any fact on which the lawyers have agreed or which I have told you that you may accept as proved," and that they were "to confine [their] deliberations to the evidence and nothing but the evidence."

      Defense counsel objected to the officer's testimony that he assumed it was bleach, but counsel did not object to the officer's testimony that Narcisse told him it was bleach.

      See Commonwealth v. Franklin, 465 Mass. 895, 910 n.24 (2013) ; Commonwealth v. Gomes, 470 Mass. 352, 379-388 (2015), S.C., 478 Mass. 1025 (2018).

      Defense counsel focused on Brown's identification of another person in the opening statement and closing argument. An instruction which explained why misidentification occurs could have undercut the defendant's theory that the evidence was exculpatory. Whether to request such an instruction in these circumstances is a quintessentially strategic decision for counsel, not a unilateral action by the judge. See Commonwealth v. Norris, 462 Mass. 131, 144 (2012).


source: Caselaw Access Project

license: Public Domain

text:
    K.B. v. J.B.
    17-P-349
    Appeals Court of Massachusetts.
    Entered: July 6, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   J.B. (father) appeals from a judgment of divorce nisi that awarded K.B. (mother) sole physical custody but a generous visitation schedule to the father; legal custody was granted to both parents. The father contends that the Probate and Family Court judge abused his discretion by not giving sufficient weight to the fact that the mother maintains a relationship with, and allows access to the children to, her father (grandfather), who sexually abused her as a child, and by accepting a report from a guardian ad litem (GAL) who did not comply with the standards for category F GAL investigations. We affirm.

Discussion. 1. GAL report. The father contends that the judge abused his discretion in accepting the report of a GAL who did not comply with Probate and Family Court Standing Order 1-05 (2005). However, the father directed us to no case or statute that makes this standing order binding, nor are we aware of any; it is just the opposite. The statute for the appointment of GALs, which simply provides that "[a]ny judge of a probate court may appoint a guardian ad litem to investigate the facts of any proceeding pending in said court relating to or involving questions as to the care, custody or maintenance of minor children," gives judges wide latitude in the appointment of GALs. G. L. c. 215, § 56A, inserted by St. 1975, c. 400, § 72.

Here, the judge appointed the GAL that was specifically requested by the parties. At that time of his appointment, the GAL had almost forty years of experience in family law matters, and had been appointed to prepare GAL reports numerous times over the years. In these circumstances the judge had no reason to doubt the GAL's qualifications, nor was he given any. Accordingly, we defer to the judge's express determination of the GAL's qualifications and credibility. See Custody of Eleanor, 414 Mass. 795, 799 (1993). See also Sacco v. Roupenian, 409 Mass. 25, 29-30 (1990) (question whether basis of expert doctor's opinion is sound goes to weight, not admissibility).

We are also not persuaded by the father's contention that the GAL's report was subpar because he failed to investigate, explore, and address the grandfather's sexual abuse of the mother when she was a child, and its impact on the children. The father, who was interviewed by the GAL, had the ability to raise concerns about the grandfather's past sexual abuse of the mother, but did not do so. The GAL should not be faulted for failing to investigate matters that were not brought to his attention. In any event, the father was not prejudiced by the omission of this inquiry in the GAL report. The grandfather's sexual abuse of the mother was fully explored during the trial. Accordingly, we see no abuse of the "[d]iscretion [that] allows the judge, when determining the best interests of children, to consider the widest range of permissible evidence, including the reports and testimony of a court appointed investigator or G.A.L." Ardizoni v. Raymond, 40 Mass. App. Ct. 734, 738 (1996).

2. Grandfather's abuse. The father next takes issue with the judge's award of sole physical custody of the children to the mother in light of her continued contact with a man (i.e., the grandfather) that sexually abused her as a child. The father contends that the judge overlooked a present risk of abuse to the children. We disagree.

The judge heard testimony that the grandfather sexually abused the mother when she was about six years old -- the approximate age of the parties' children. However, the judge also heard that the abuse stopped when the mother reported it to her mother (grandmother) years ago, the mother sought counselling for the abuse for more than ten years, she has since reconciled with the grandfather, and she currently enjoys a "great" relationship with him. Furthermore, despite the mother's reconciliation with the grandfather, there is no evidence that during the family's visits with the grandfather (which included the father) the mother left the children alone with him. Rather, the mother testified that she would never leave the children alone with the grandfather, and this testimony was corroborated by testimony that the grandfather's wife will always be present when the children visited with them, and that the grandmother had no concerns about the grandfather abusing the children. Based on this evidence, it is clear that the judge, who otherwise made very detailed findings, gave no weight to the father's concern with the mother's continued relationship and family visits with the grandfather, who lives in Florida six months out of the year. Contrast B.B.V. v. B.S.V., 68 Mass. App. Ct. 12, 19-20 (2006) (court vacated and remanded custody order that did not limit access of mother's father to her children when the two appeared to be in an ongoing incestuous relationship and mother saw no issue in allowing him access to her children). For these reasons, we see no abuse of the judge's wide discretion in determining that "the promotion of the best interests of the children and their general welfare" lies with awarding physical custody of the children to the mother. See Rolde v. Rolde, 12 Mass. App. Ct. 398, 402 (1981). See also Rosenthal v. Maney, 51 Mass. App. Ct. 257, 269 n.15 (2001) (quality of child's life with mother "amply supported by the uncontroverted evidence").

Judgment affirmed.

      We deny the father's request for appellate attorney's fees.


text:
    SEA VIEW RETREAT, INC. v. SECRETARY OF the EXECUTIVE OFFICE OF HEALTH AND HUMAN SERVICES.
    17-P-552
    Appeals Court of Massachusetts.
    Entered: July 6, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Sea View Retreat, Inc. (Sea View), appeals from so much of a judgment of the Superior Court as denied its request for reimbursement from the Commonwealth of user fees associated with the operation of its nursing home facility. Sea View contends that (1) the administrative magistrate of the Division of Administrative Law Appeals (DALA) acted in a manner contrary to an express statutory mandate; and (2) Sea View was not required to appeal the user fee assessments to DALA within sixty days, in compliance with G. L. c. 118G, § 25(e ). We affirm.

Background. Sea View is a nursing home facility located in Rowley. Federal law permits States to collect nursing facility user fees as broad-based uniformly imposed health-care-related taxes, which become part of a nursing facility's cost basis for purposes of Medicaid reimbursement. See 42 U.S.C. § 1396b(w)(3)(B) (2000) ; 42 C.F.R. § 433.68 (2008) (discussing permissible health-care-related taxes). In 2002, with the enactment of G. L. c. 118G, § 25, the Legislature authorized the Commonwealth to collect an assessment for every "non-Medicare reimbursed patient day" from nursing facilities in the Commonwealth. Sea View has been assessed quarterly user fees since 2002 for each day of care it provides to patients whose care is not reimbursed by Medicare.

The same Federal law also allows a State to apply for a waiver, which permits the State to exempt certain groups of nursing facilities from paying the user fees. See 42 C.F.R. § 433.68. After obtaining a Federal waiver, the Commonwealth, in 2006, promulgated its own regulations consistent with the Federal scheme.

It is undisputed that, from the time the Commonwealth's regulations were promulgated, Sea View met the criteria necessary for a facility to be deemed exempt from paying user fees. It is also undisputed that despite Sea View meeting these criteria, the Commonwealth did not identify Sea View as a nursing facility eligible for exemption or provide Sea View with an exemption. Between 2006 and July, 2011, Sea View continued to pay the quarterly user fee assessments. While paying the user fees, Sea View collected "add-on" user fee reimbursements from the Commonwealth. "Add-ons" are Medicaid payment enhancements intended to reimburse nursing homes for a portion of the user fee assessments that they are required to pay to the Commonwealth. See now 101 Code Mass. Regs. § 206.06(12) (2018).

On November 1, 2011, the Commonwealth issued Sea View an invoice for payment of the most recent quarter's user fees. Sea View did not make payment. On January 4, 2012, the Commonwealth issued a past-due notice, demanding Sea View pay its unpaid quarterly user fee assessment. On February 2, 2012, Sea View appealed the user fee assessment to DALA. The DALA magistrate concluded that Sea View's challenge to the assessment of fees imposed prior to December 4, 2011, were time-barred for failure to appeal within the sixty-day period set forth in G. L. c. 118G, § 25(e ). In addition, the magistrate concluded that although Sea View met the criteria for exempt status, it did not in fact have an exemption at the time of the action -- due to its placement on the Commonwealth's exemption waiting list.

Sea View then filed a complaint in Superior Court that, as amended, contained a claim for judicial review under G. L. c. 30A, § 14, and a claim for declaratory judgment under G. L. c. 231A, § 2. Sea View was successful with respect to one part of the action: The Commonwealth was required to grant it the user fee exemption. (See note 7, supra.) However, the Superior Court judge agreed with the magistrate that Sea View was limited to pursuing claims for user fees assessed on or after the November 1, 2011, assessment, which was the first one timely appealed to DALA in accordance with G. L. c. 118G, § 25(e ). This appeal followed.

Discussion. a. General Laws c. 30A, § 14. Sea View contends that since it should have received the legislatively mandated exemption at all times, it is entitled to retroactive application of exempt status. "Appellate review under G. L. c. 30A, § 14, is limited to determining whether the agency's decision was unsupported by substantial evidence, arbitrary and capricious, or otherwise based on an error of law." Burke v. Board of Appeal on Motor Vehicle Liab. Policies & Bonds, 90 Mass. App. Ct. 203, 205 (2016) (quotation omitted). "As the party challenging an agency decision under G. L. c. 30A, § 14, [Sea View] has the burden of proof to demonstrate the invalidity of the administrative determination." Id. at 206.

General Laws c. 118G, § 25(e ), states that an aggrieved nursing facility challenging a user fee assessment "may file an appeal to the division of administrative law appeals within 60 days of the date of the notice of underpayment or the date the notice was received, whichever is later." In this case, Sea View did not appeal any assessments for years. Instead, Sea View made quarterly user fee payments -- while collecting "add on" reimbursements -- between 2006 and 2011, before first filing an appeal on February 2, 2012.

Nonetheless, Sea View maintains that the Commonwealth ignored its requests to be reclassified as exempt, and that the DALA magistrate erred in declining to find that the Commonwealth had received faxed letters Sea View sent in prior years requesting exempt status. The DALA magistrate was not required to make the requested finding. The legitimacy of Sea View's reclassification requests -- alleged to have been sent as early as 2009 -- are not material, as Sea View did not file a timely appeal in accordance with § 25(e ).

b. General Laws c. 231A, § 2. Sea View contends it may nonetheless bring an action for declaratory relief under G. L. c. 231A, § 2, and obtain retroactive relief in that manner. Sea View may not use a declaratory judgment action to circumvent the applicable administrative appeal period, however. See New England Milk Dealers Assn., Inc. v. Department of Food & Agric., 22 Mass. App. Ct. 705, 709 (1986) (Milk Dealers ). "[I]n the absence of special circumstances, usually ones involving a question of broad and acute public interest, declaratory relief should not be used to circumvent a period prescribed by statute for obtaining judicial review."Ibid. The declaratory judgment action also must be filed within the sixty-day time frame allotted in § 25(e ). See Milk Dealers, supra at 706.

c. Futility. Sea View claims that it was not required to "exhaust administrative remedies" by complying with § 25(e ), because it would have been futile or inadequate. "To obtain declaratory relief in a case involving administrative action, a plaintiff must show [among other things] ... [that] available administrative remedies have been exhausted." New Bedford Educators Assn. v. Chairman of Mass. Bd. of Elementary & Secondary Educ., 92 Mass. App. Ct. 99, 107 (2017) (quotation omitted). "The doctrine of exhaustion of administrative remedies is one of deference to the Legislature where it has expressed its intent that a particular question be determined in the first instance by an administrative agency. Exceptions are rare." Athol Memorial Hosp. v. Commissioner of Div. of Med. Assistance, 437 Mass. 417, 426 (2002). Under one such exception, "where ... the administrative remedies would be inadequate, or resort to them futile, courts can exercise jurisdiction despite the plaintiff's failure to pursue such remedies." Ciszewski v. Industrial Acc. Bd., 367 Mass. 135, 141 (1975). "[T]his exception applies only where the power and authority of the agency themselves are in question, and not where the exercise of that agency's discretion is challenged." Ibid.

The futility exception does not apply in these circumstances. As discussed below, the proper course of action for Sea View was filing an appeal to DALA within the sixty-day time frame provided in § 25(e ). If Sea View had done so and the DALA magistrate "applied the law incorrectly to the facts [he] found, such an error could be rectified in a complaint for judicial review under G. L. c. 30A, § 14." Athol Memorial Hosp., supra. "Since 'a direct and distinct path of review' [was] available, declaratory relief is not." Rosenfeld v. Board of Health of Chilmark, 27 Mass. App. Ct. 621, 626 (1989), quoting from Milk Dealers, supra.

Moreover, G. L. c. 118G, § 25(b ), enacted to fund Medicaid payments, provides that "[e]ach nursing home shall pay an assessment ... sufficient in the aggregate to generate $145 million in each fiscal year." Allowing noncompliance with the sixty-day appeal period provided in § 25(e ) and permitting parties to seek declaratory judgments to recoup funds from long-past assessment periods would frustrate the Legislature's purpose of ensuring that Medicaid payments were funded for "each fiscal year."

Finally, Sea View contends that the Commonwealth is not entitled to a windfall of user fee payments when it was never authorized to assess them. The Commonwealth has not received a windfall. Sea View could have appealed the erroneous user fee assessments for any quarterly period between 2006 and 2011, but failed to do so.

Judgment affirmed.

      In late 2012, the Legislature repealed G. L. c. 118G, § 25, and placed the same language in the newly created G. L. c. 118E, § 63(e ). See St. 2012, c. 224, §§ 131, 132.

      See St. 2002, c. 184, § 101.

      See generally 114.5 Code Mass. Regs. §§ 12.00 (2006).

      Sea View last paid any assessed user fees in July, 2011.

      Additionally, according to the Commonwealth, between Sea View's cessation of user fee payments in 2011 and the first quarter of 2016, Sea View received some $1.2 million in "add-on" payments.

      In its appeal to DALA, Sea View contended that it was exempt from user fee payments assessed and collected by the Commonwealth and that it had sent the Commonwealth numerous reclassification requests, which had been ignored. Sea View requested that DALA declare it exempt from having to pay user fee assessments issued after September 1, 2009, and that it order the Commonwealth to refrain from taking any action against it for the failure to pay future user fee assessments.

      One of the issues decided by the Superior Court judge was that the Commonwealth did not have the authority to create a waiting list for nursing facilities that qualify for exempt status. As the Commonwealth did not appeal, the merits of that ruling are not before us.

      Also relevant is the necessity that the Commonwealth's program remain in compliance with the Federal regulations to maintain Federal funding. See Daley v. Secretary of Exec. Office of Health & Human Servs., 477 Mass. 188, 190 (2017) ; Needham v. Director of Office of Medicaid, 88 Mass. App. Ct. 558, 561 (2015). This is especially relevant since the Commonwealth is required to finance a significant portion of Medicaid benefits on its own. See Daley, supra.


text:
    Joel COLEMAN v. David NORRIS.
    17-P-703
    Appeals Court of Massachusetts.
    Entered: July 6, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The issue we consider in this appeal is the enforceability of a disputed settlement agreement. The plaintiff, Joel Coleman, appeals from an order of the Superior Court allowing defendant David Norris' motion to enforce settlement. A stipulation of dismissal was entered on September 8, 2016. See Mass.R.Civ.P. 41(b)(2), 365 Mass. 803 (1974). Coleman's primary argument on appeal is that the motion judge erred in allowing Norris's motion to enforce settlement because there was no valid agreement between Commerce Insurance Co. (Commerce), Coleman, and Norris. Coleman maintains that Commerce's release form (release), which was sent in response to Coleman's August 18, 2015, demand for the tender of Norris's insurance policy limits, served as a counter offer because the release included the additional terms that both Norris and Commerce are to be released from all liability arising out of the underlying motor vehicle accident. Coleman specifically argues that the motion judge erred for three reasons: (1) the motion judge did not conduct an evidentiary hearing on the issue as to whether there was a meeting of the minds between the parties; (2) the motion judge did not apply the summary judgment standard, viewing the facts in the light most favorable to Coleman; and (3) the motion judge looked back to prior offers and rejected proposals over the previous thirteen months to "extrapolate a meeting of the minds and definite terms." We affirm.

Background. We summarize the material facts which are undisputed. On October 7, 2012, Coleman and Norris were involved in a motor vehicle accident. On April 23, 2014, Coleman sent Commerce a demand letter for the tender of $100,000, Norris's insurance policy limits. Commerce responded to Coleman's demand letter on July 1, 2014, offering Coleman a settlement of $33,914. On July 28, 2014, Coleman filed the current law suit, and mailed a letter to Norris stating,

"I have enclosed a copy of the demand letter that was sent to [Commerce]. It is my understanding that the limits of coverage accessible to you through Commerce are $100,000. The damages in this matter far exceed the policy limits. However, Commerce has failed to tender the policy limits. A law suit has been filed and you may retain separate counsel to protect your rights above and beyond the coverage limits of the automobile policy."

Commerce appointed an attorney to defend Norris on September 8, 2014. On June 16, 2015, Coleman sent a letter to Norris, which proposed a postjudgment assignment of rights from Norris to Coleman "as it pertains to the policy of insurance" so that Coleman can "pursue [Commerce] for damages above and beyond the policy limits." Such assignment of rights was offered in exchange for Coleman's agreement to not seek recovery of Norris's "personal assets and future wages to satisfy any judgment above and beyond the policy limits."

On July 3, 2015, Coleman sent Commerce another letter seeking the tender of Norris's policy limits by July 17, 2015. Coleman specifically states in the July 3, 2015, letter:

"I write this letter as a good faith last chance effort to avoid the need to send a formal statutory demand letter under the 93A/176D and subsequent litigation.
"If claims management still fails to tender the policy limits I will go forward with the necessary statutory requirements discussed above and move forward to trial exposing the policy holder to damages well beyond the policy limits ..." (emphasis added).

Commerce neither responded nor tendered the policy limits to Coleman by the July 17, 2015, deadline. On August 5, 2015, Commerce sent an electronic mail (e-mail) message to Coleman inquiring about high-low arbitration. Coleman responded that his "demand stays the same, the policy limits." On August 18, 2015, Coleman sent Commerce a letter declining Commerce's high-low arbitration proposal. In the same letter, Coleman made another demand for the tender of Norris's policy limits:

"I renew my client's demand for the policy limits and note that Commerce has still not made a reasonable offer of settlement.... If the offer of the policy limits is not made in [seven] days I will move forward with trial and seek the most possible for my client and seek an assignment of rights from the policy holder for all of his direct claims against Commerce" (emphasis added).

Commerce e-mailed Coleman on the same date requesting that Coleman call Commerce to discuss settlement. Coleman responded, "I am simply waiting for you to tell me if [C]ommerce will tender the policy limits or not. I will not be calling." Commerce sent a response e-mail asking Coleman for his fax number and stated that Commerce "will fax the 100k release."

On August 19, 2015, Commerce e-mailed and mailed Coleman the release tendering the policy limits of $100,000. The release also included a provision that, in exchange for the $100,000, Coleman would "remise, release and forever discharge" Norris and Commerce from "any and all actions, claims and demands, whatsoever ... arising out of the accident." More than two months later, on October 24, 2015, Coleman mailed Commerce a letter rejecting Commerce's release because it included Commerce's and Norris's release from liability which, according to Coleman, were additional terms to his August 18, 2015, offer. Norris thereafter filed a motion to enforce the settlement agreement between Coleman and Commerce as it applied to Norris. The motion was allowed.

Discussion. A settlement agreement is an enforceable contract. See, e.g., Carver v. Waldman, 21 Mass. App. Ct. 958, 960 (1986). An enforceable contract requires "(1) terms sufficiently complete and definite, and (2) a present intent of the parties at the time of formation to be bound by those terms." Targus Group Intl., Inc. v. Sherman, 76 Mass. App. Ct. 421, 428 (2010). The determination whether the settlement agreement was "sufficiently clear and complete" is reviewed de novo. Basis Technology Corp. v. Amazon.com, Inc., 71 Mass. App. Ct. 29, 36 (2008). A determination that the parties intended to be bound by the settlement agreement is a factual determination, which is reviewed for clear error. See Fecteau Benefits Group, Inc. v. Knox, 72 Mass. App. Ct. 204, 212 (2008).

"In order to form a contract under Massachusetts law, '[a]n offer must be matched by an acceptance. A counteroffer proposing a term that is materially different from that contained in the original offer constitutes a rejection of the offer and negates any agreement.' ... Moreover, '[i]t is axiomatic that to create an enforceable contract, there must be agreement between the parties on the material terms of that contract, and the parties must have a present intention to be bound by that agreement.' Situation Mgmt. Sys. v. Malouf, Inc., 430 Mass. 875, 878 (2000). Thus, while '[i]t is not required that all terms of the agreement be precisely specified, and the presence of undefined or unspecified terms will not necessarily preclude the formation of a binding contract[,]' in order for an enforceable contract to exist, the parties must have reached an agreement on all of the essential terms." D'Agostino v. Federal Ins. Co., 969 F. Supp. 2d 116, 126 (2013), quoting from Situation Mgmt. Sys., supra.

Here, Coleman contends that the last communication between his attorney and Commerce, dated August 18, 2015, did not include a release from liability for Norris and Commerce; rather, it merely sought Commerce's tender of Norris's policy limits. According to Coleman, Commerce's inclusion of itself and Norris in the release constituted a counter offer, thereby negating the existence of an agreement. We disagree. The communication dated August 18, 2015, in addition to issuing a "demand for the policy limits," stated that "[i]f the offer of the policy limits is not made in [seven] days [Coleman] will move forward with trial and seek the most possible ... and seek an assignment of rights from [Norris] for all of his direct claims against Commerce." The communication is clear and shows that Coleman proposed to Commerce that he would accept Norris's policy limits of $100,000 in exchange for not "mov[ing] forward with trial" and not "seek[ing] assignment of rights from [Norris] for all of his direct claims against Commerce." The judge found, and we agree, that this communication "established the material terms of his offer and a deadline for acceptance: an exchange of money -- $100,000, the full policy limit -- for forbearance of Coleman's legal claims against Norris and Commerce, set to expire within seven days." Furthermore, the July 3, 2015, letter specifically references Coleman's G. L. c. 93A claim, stating that if Commerce does not tender the policy limits, Coleman will move forward with the "necessary statutory requirements discussed above." Such language is in reference to Coleman's discussion of his "93A/176D and subsequent litigation" against Commerce in the July 3, 2015, letter. Although Commerce did not respond to Coleman by July 17, 2015, Coleman subsequently "renew[ed] [his] demand" in the letter dated August 18, 2015.

Coleman next argues that the judge erred because he did not conduct an evidentiary hearing on whether there was a meeting of the minds regarding a release of Coleman and Norris from liability. It is not entirely clear whether an evidentiary hearing was requested. In any event, it is within a judge's discretion not to hold an evidentiary hearing. See Commonwealth v. Jones, 77 Mass. App. Ct. 53, 60 (2010). We see no abuse of discretion here. Determination as to whether the parties' communications constituted a contractual agreement was an interpretation of law and a reading of the plain language in the parties' communications. Coleman's remaining claims have not been overlooked. They do not require discussion.

Order allowing motion to enforce settlement affirmed.

      By way of background, Norris filed a motion to enforce settlement; said motion was allowed on March 17, 2016. The motion judge issued an order of dismissal nisi and ordered the parties to either file an "[a]greement for [j]udgment or [s]tipulation of [d]ismissal" by April 19, 2016. The motion judge further ordered that "[i]f said [a]greement or [s]tipulation is not filed by said date the [c]lerk is hereby directed to prepare, sign and enter [j]udgment dismissing the [c]omplaint, and all other claims, without prejudice and without statutory costs." Coleman filed a motion for reconsideration; said motion was denied on August 23, 2016. On September 8, 2016, the parties entered into a stipulation of dismissal with Coleman receiving a $100,000 judgment and both parties retaining their rights of appeal. Coleman filed the instant appeal on October 6, 2016.

      Commerce was Norris's insurance provider at the time of the underlying motor vehicle accident. Commerce is not a party in this case; however, the judge allowed Commerce to argue on its own behalf without a motion to intervene.

      This accident allegedly resulted in Norris suffering severe injuries. As a result, Norris allegedly accumulated over $50,000 in medical bills and $1,388,932.70 in damages. The amount of Norris's damages is disputed by the parties.

      Norris was deposed on June 19, 2015.

      As a result of this proposal, Norris's attorney instructed Norris to obtain private counsel. Norris's attorney also notified Coleman's attorney that he believed he had a duty to inform Commerce of the content of the proposal.

      Coleman relies on D'Agostino, supra, in arguing that the "inclusion of an additional party to a proposed release acts as a counter offer." D'Agostino differs from the case at bar because the parties' communications in D'Agostino emphasized "that as a condition to any settlement, D'Agostino would need to retain the ability to pursue claims against Bank of America, which was not a party to the lawsuit, for alleged breach of its fiduciary duties to the [t]rust." Id. at 121. Here, nowhere in Coleman's August 18, 2015, communications was there a condition that Coleman retain the ability to pursue Commerce. In fact, the offer states the contrary; if Commerce does not tender the policy limits, Coleman will seek an assignment of Norris's rights to pursue Commerce. Commerce thereafter tendered the policy limits.

      See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).


text:
    William J. NUTT & others v. ZONING BOARD OF APPEALS OF MARBLEHEAD & others.
    17-P-1229
    Appeals Court of Massachusetts.
    Entered: July 6, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Deborah S. Nutt, Kevin J. McKernan, Rebecca A. McKernan, Stein I. Skaane, and Jean Cragin Skaane.

      Ralph Sevinor and Meryl Sevinor.

   The plaintiffs appeal from a judgment of the Land Court in favor of the defendants. The judge found that the zoning board of appeals of Marblehead (ZBA) reasonably interpreted its own by-laws on how to measure the height of a building when it issued a special permit for the construction of a new house on shorefront property owned by Ralph Sevinor and Meryl Sevinor (collectively, Sevinors). On appeal, the plaintiffs contend that the interpretation of the by-laws is legally untenable, unreasonable, whimsical, capricious, or arbitrary. We affirm.

Discussion. We only overturn the decision of a ZBA when "it is based on a legally untenable ground" or "is based on an 'unreasonable, whimsical, capricious or arbitrary' exercise of its judgment." Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374, 382 (2009) (Wendy's ), quoting from Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478, 487 (1999). We also afford " 'substantial deference' to a board's interpretation of its zoning bylaws and ordinances." Wendy's, supra at 381, quoting from Manning v. Boston Redev. Authy., 400 Mass. 444, 453 (1987).

1. Legal tenability. The Sevinors own land overlooking Marblehead harbor. Under Marblehead by-laws, the maximum height for a building in this area is thirty feet. Article II, § 200-7, of the by-laws states that the height of a building is "measured from the highest point of any roof or parapet to the lowest point of the original grade or the lowest point of the finished grade of the ground adjoining the building, whichever makes the building height greater." That section also states that original grade is defined as "[t]he level of the land at a construction site prior to site preparation," while the definition of "site preparation" includes the "removal and moving of standing buildings."

When the Sevinors applied for a special permit to raze the existing house on their land and to construct a new one, they submitted plans showing a proposed height of thirty feet, measured from twenty-three feet above sea level. This measurement excludes the depth of the existing basement from the height calculation because the proposed house will be further inland, and on a different foundation, than the existing house. The Marblehead building commissioner (commissioner) endorsed this measurement in a letter to the ZBA.

The commissioner explained that he always excludes existing basements from height calculations because "the existing basement would be considered to be part of the excavation [i.e., the site preparation,] required for the proposed structure and would not contribute to the height calculation." The ZBA adopted the commissioner's interpretation. Contrary to the plaintiff's assertions, the ZBA's interpretation conforms with the definitions in the by-laws of site preparation and original grade. Accordingly, we conclude it is legally tenable and worthy of deference. Wendy's, supra.

2. Unreasonableness, whimsicality, capriciousness, or arbitrariness. We also are not persuaded by the plaintiff's contention that the ZBA's decision is otherwise legally unsound.

As stated supra, the ZBA reasonably interpreted its own bylaws. Furthermore, the commissioner's letter makes clear that this is the interpretation applied to all building projects. Here, the ZBA had full access to the proposed plans for the new house and carefully considered the factors mandated by its by-laws in issuing the special permit here. The original plans were even changed to meet certain requirements and, while the approved plans propose a house that is nonconforming in some respects, it proposes a more conforming house than the Sevinors' existing home. We discern no error.

Judgment affirmed.

      Article II, § 200-36(B), requires that the ZBA consider the following factors:
      "(1) The general purpose and intent of this Bylaw, and whether
      (2) The specific site is an appropriate location for such use or building; and
      (3) The use as developed will not adversely affect the neighborhood; and
      (4) There will be no nuisance or serious hazard to vehicles or pedestrians;
      (5) Adequate and appropriate facilities will be provided for the proper operation of the proposed use."


text:
    Salvatore CARUSO & another v. Craig R. CUTONE & another.
    17-P-881
    Appeals Court of Massachusetts.
    Entered: July 5, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Rosanna Caruso.

      Safety Insurance Company, which is not a party to this appeal.

   On January 27, 2014, defendant Craig Cutone hit plaintiff Salvatore Caruso with his automobile while Caruso was crossing the street at the intersection of William Street and Route 28 in Stoneham. Caruso sued Cutone for negligence; Caruso's wife, Rosanna Caruso, sued for loss of consortium. The case was tried before a jury; they returned a special verdict in favor of Cutone, finding that the plaintiffs did not establish the element of negligence, something the jury indicated by marking an "X" on a line next to the word "No" beneath a question that read: "Was Craig R. Cutone negligent on January 27, 2014?" Consistent with the instructions on the special verdict slip, the jury consequently did not go on to answer any of the subsequent questions on the slip, including the next one, "Was the negligence of Craig R. Cutone a substantial factor in contributing to cause injuries to plaintiff Salvatore Caruso?" The plaintiffs filed a motion for a new trial, which was denied, and now appeal.

The essence of the plaintiffs' claim is that Cutone's admissions at trial establish that, as a matter of law, he was negligent, that he had breached the duty of care. Cutone hit Caruso with his automobile while making a left turn. Although Cutone testified that he "already looked left and got clearance from the car coming that they're stopping or stopped," he also agreed with plaintiffs' counsel when asked the following question on cross-examination: "At the time when you were pulling out from the lot, you're looking right, you're driving towards the left. You're not looking where you're going?" The plaintiffs argue that driving without looking where one is going is negligent as a matter of law.

We need not, however, decide this issue. In instructing the jury on the element of negligence, the judge said the following:

"If Mr. Cutone could not have seen Mr. Caruso by using ordinary care, then he may not be found to be negligent. On the other hand, if Mr. Caruso could've been seen and the collision prevented if Mr. Cutone used ordinary care, then you must decide whether Mr. Cutone was negligent in light of all the circumstances."

This instruction, which was not objected to at trial, actually conflates the elements of negligence and causation. It told the jury that, to find that Cutone had met the element of negligence, they were required to find not only that he had breached his duty of care, but that his exercise of due care could have prevented the accident -- in other words, under this instruction, even if the jury found that Cutone breached a duty of due care they could not find the element of negligence proven unless they also found that his negligence was a "but for" cause of the accident.

This is not an accurate instruction with respect to the element of negligence, see Donovan v. Philip Morris USA, Inc., 455 Mass. 215, 221-222 (2009) (breach of duty and causation are distinct elements of the tort of negligence), but since it was given, the jury might have returned the special verdict of "not negligent" not because it found that Cutone did not breach the duty of care properly defined, but because it found that his negligence was not a "but for" cause of the accident. That is, the jury's verdict might reflect a finding that Cutone was negligent in not looking where he was driving, but that the accident would have occurred even had he been paying perfect attention and taking due care.

Whether or not Cutone breached his duty of care, the latter finding would have been adequately supported by the record, which includes testimonial and videotape evidence that lighting in the area was poor and that Caruso ran into the street while wearing dark clothes. A jury could have found that, in these circumstances, Cutone could not have avoided the accident even had he been looking where he was going, and therefore that, even if he was negligent, such negligence was not a "but for" cause of the accident.

A new trial is appropriate only if the judge can be satisfied that the jury "failed to exercise an honest and reasonable judgment in accordance with the controlling principles of law." Hartmann v. Boston Herald-Traveler Corp., 323 Mass. 56, 60 (1948). Given the principles of law as the judge without objection instructed upon them, and the record of the case, the judge's denial of the motion for a new trial was not in error.

Judgment affirmed.

Order denying motion for new trial affirmed.

      The plaintiffs argue that the jury were "bound by" these admissions in that they were required to accept them as true. We assume without deciding that the plaintiffs are correct.

      Although our decision is based on a ground different from the motion judge's, we may affirm on any ground apparent in the record. See Gabbidon v. King, 414 Mass. 685, 686 (1993).


text:
    Richard A. CAMPOS v. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY.
    17-P-1146
    Appeals Court of Massachusetts.
    Entered: July 5, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The plaintiff, Richard A. Campos, appeals from a Superior Court order allowing the Massachusetts Bay Transportation Authority's (MBTA's) motion for summary judgment on his complaint, alleging that the MBTA discriminated against him on the basis of his race and color in violation of G. L. c. 151B, § 4, when it placed him on administrative leave for approximately six months and suspended him for ten days. We affirm.

Background. We briefly summarize the material facts in the light most favorable to the plaintiff, the nonmoving party, reserving additional facts for later discussion. See Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 35 (2005). The plaintiff, who is of Hispanic descent, joined the MBTA police department (the department) as a patrol officer in 1996, rose through the ranks, and eventually became a lieutenant in 2008 after receiving the highest score on the promotional examination.

While working as a lieutenant for the department, the plaintiff supplemented his income by working police detail assignments (details), which consist of work outside of an officer's normal duties often paid by the third party for whom the work is being done. To get paid for a detail, an officer must submit both (i) a hard copy detail card, attesting to the start and finish times of the detail as well as the actual hours worked, and (ii) a computerized version of this same information in the department's assignment tracking system (Larimore System). One such detail at the Ruggles MBTA station (Ruggles detail) is paid by Northeastern University police department (Northeastern).

In early March, 2013, Northeastern contacted the department to complain that it had been charged for a February 15, 2013, Ruggles detail when no department officer had worked the detail; instead, a Northeastern officer had performed the detail. Although the plaintiff had not worked the detail, the Larimore System listed the plaintiff as having worked this detail, and the plaintiff had submitted a signed detail card, confirming that he had worked that detail. In response to Northeastern's complaint, Robert Fitzsimmons, the deputy chief in charge of the department's internal affairs unit, commenced an investigation of the plaintiff's detail assignments.

During the investigation, the plaintiff admitted that he had not worked the February 15 detail. He explained that, on the evening of the detail, he had asked another department lieutenant to remove him from the Larimore System and to contact Northeastern to confirm the removal. The plaintiff left for a one-week vacation the next day, and when he returned, he submitted several detail cards for payment. When he checked the Larimore System, he saw that the February 15 detail was still listed as his assignment, and mistakenly submitted for payment of the detail, forgetting that he had not actually worked that evening.

In addition to the February, 2013, Ruggles detail, Fitzsimmons discovered that the plaintiff had worked two overlapping detail assignments in separate locations in December, 2012, and had received double payment for the time. Fitzsimmons reported the status of his investigation to the department chief, Paul MacMillan, who placed the plaintiff on paid administrative leave pending the completion of the investigation. As a result, although the plaintiff was paid his full salary, he was no longer eligible to supplement his pay by working details.

In view of the February, 2013, and the December, 2012, incidents, Fitzsimmons expanded his investigation of the plaintiff's detail assignments, finding eleven other instances when, according to "Fast Pass" transponder records, the plaintiff's vehicle was on the road during times where his detail submissions reported that he was still at the Ruggles detail.

In June, 2013, Fitzsimmons issued a written report to the chief, concluding that the plaintiff had, among other things, acted with fraudulent and larcenous intent by submitting for and receiving payment for details when he knew he was not present, and violated the department rules prohibiting officers from violating criminal laws. Although Fitzsimmons had received the plaintiff's explanation for the February 15 Ruggles detail, he did not ask the plaintiff to explain either the December, 2012, violation or the eleven other instances of discrepancies regarding the plaintiff's Ruggles details.

After reviewing the report, the chief convened a disciplinary hearing (just cause hearing), at which the plaintiff was represented by counsel. Fitzsimmons testified regarding his investigation. The plaintiff had the opportunity to testify and present evidence, but chose not to do so. In particular, the plaintiff offered no explanation for either the December, 2012, violation or for the eleven instances where he left the Ruggles detail early but was paid for the full time period.

The hearing officer concluded that the plaintiff had knowingly submitted false claims for payment in connection with the eleven occasions where he left the Ruggles detail early, and for the December, 2012, overlapping shifts, but that he did not knowingly make false time submissions in connection with the February 15, 2013, Ruggles detail. The chief reviewed these conclusions, and determined that the plaintiff had committed serious misconduct. After negotiations with plaintiff's counsel, the chief suspended the plaintiff for ten days without pay.

Discussion. We review a ruling on a motion for summary judgment de novo to determine whether the moving party has established that, viewing the evidence in the light most favorable to the opposing party, "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 680 (2016), quoting from Premier Capital, LLC v. KMZ, Inc., 464 Mass. 467, 474 (2013). See Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002). To survive summary judgment on a claim of employment discrimination pursuant to G. L. c. 151B, a plaintiff-employee must produce evidence from which a reasonable jury could infer "four elements: membership in a protected class, harm, discriminatory animus, and causation." Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 474 Mass. 382, 396 (2016). Because there is rarely direct evidence of discriminatory animus, a plaintiff may establish these elements by producing "indirect or circumstantial evidence using the familiar three-stage, burden-shifting paradigm" first set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805 (1973). Bulwer, supra at 680-681.

At the first stage, the plaintiff must produce evidence of a prima facie case of discrimination-that is, evidence that would allow a reasonable jury to infer that the plaintiff: (i) is a member of protected class; (ii) performed the job adequately; and (iii) suffered an adverse employment action. Ibid. Here, we assume without deciding that the plaintiff's evidence supports a prima facie case. In the second stage, the burden of production shifts to the employer to articulate a nondiscriminatory rationale for the adverse employment decision. Ibid. The MBTA has articulated a legitimate, nondiscriminatory reason for the adverse employment action-namely, that (as set forth supra ) he violated the department policies by submitting for and receiving payment for work that he did not perform.

In the third stage, the burden shifts back to the employee to produce evidence that would allow a reasonable jury to infer that the employer's stated rationale was not the actual reason, and as such, was pretext. Ibid. As supposed evidence of pretext, the plaintiff points to Fitzsimmons's failure to interview the plaintiff (beyond seeking his explanation for the February, 2013, Ruggles detail) and others regarding the numerous alleged policy violations. However, an incomplete or cursory investigation is not a basis for a finding of pretext. See Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 128, 134 (1997). Moreover, the Fitzsimmons investigation was not the end of the MBTA's efforts to investigate the plaintiff's misconduct. To the contrary, the plaintiff was given a full opportunity to provide exculpatory information during the just cause hearing, was represented by counsel, and affirmatively chose not to explain his detail assignment submissions. Any purported failure on Fitzsimmons's part to proactively seek clarification from the plaintiff-information the plaintiff failed to provide when given the chance-is not evidence that the MBTA's rationale was a pretext.

The plaintiff also alleges that pretext can be found on the basis of the supposed disparate treatment of the plaintiff in comparison to a white officer. The white officer here was not similarly situated to the plaintiff. See id. at 130-133. This officer, unlike the plaintiff, neither made false representations nor double billed a third party regarding detail assignments. Furthermore, the white officer was disciplined by a different supervisor than the plaintiff. See Rodriguez-Cuervos v. Wal-Mart Stores, Inc., 181 F.3d 15, 21 (1st. Cir. 1999). In these circumstances, the treatment of the white officer was not evidence that the MBTA's rationale regarding the plaintiff's discipline was pretext.

Finally, the plaintiff argues that pretext can be inferred based on historic instances of the MBTA's treatment towards him prior to the investigation at issue in this case. We disagree in light of the time span between the plaintiff's placement on administrative leave and these prior events, and the fact that those events involved entirely different factual contexts and concerned decisions made by MBTA employees not involved in the current allegations. See Morrison v. Carleton Woolen Mills, Inc., 108 F.3d 429, 439 (1st Cir. 1997) (time-barred conduct considered only if "legally relevant" to the conduct about which the employee timely complains).

Judgment affirmed.

      The motion judge also ordered the entry of summary judgment on the plaintiff's employment retaliation claim pursuant to G. L. c. 151B, § 4(4). As the plaintiff raises no challenges to that portion of the motion judge's order, the issue is waived. See Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 35 n.1 (2005).

      At the time, he was the highest ranking Hispanic officer in the department.

      This is referred to as a "double dipping" violation.

      The chief stated that placing officers under investigation on paid administrative leave is a standard department procedure.

      The plaintiff's argument, citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000), that, at summary judgment, the judge cannot consider the movant's undisputed evidence is directly contradicted by well-established Massachusetts precedent. See Barron Chiropractic & Rehabilitation, P.C. v. Norfolk & Dedham Group, 469 Mass. 800, 804 (2014) (citations omitted). Indeed, Federal courts of appeals addressing a similar argument have soundly rejected it. LaFrenier v. Kinirey, 550 F.3d 166, 168-169 (1st Cir. 2008) (citing cases from the United States Court of Appeals for the First, Third, Fourth, and Sixth Circuits).

      The Supreme Judicial Court has previously considered and rejected the plaintiff's argument that in addressing a motion for summary judgment in a discrimination case courts should proceed directly to the third stage of the McDonnell Douglas paradigm. Sullivan, 444 Mass. at 46 n.17 ("We proceed with the McDonnell Douglas analysis because it remains 'a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination' "), quoting from Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978).

      The plaintiff's belated explanations have no bearing on what the chief believed when he made his decision to place the plaintiff on paid administrative leave and (following Fitzsimmons's investigation, the just cause hearing, and negotiation with the plaintiff's counsel) to suspend the plaintiff. As such, the plaintiff cannot rely on these explanations to show pretext. Sullivan, 444 Mass. at 56 (explaining that "our task is not to evaluate the soundness of [the defendant's] decision making, but to ensure it does not mask discriminatory animus").

      The plaintiff's argument that the issue whether comparators are similarly situated is always a question for the jury is belied by the case law. See, e.g., Matthews, 426 Mass. at 130-133.


text:
    COMMONWEALTH v. Paulino MIRANDA.
    16-P-1498
    Appeals Court of Massachusetts.
    Entered: July 5, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   On May 10, 2010, a grand jury indicted the defendant, Paulino Miranda, on charges of murder in the first degree, two firearms charges, armed robbery, and assault by means of a dangerous weapon. On August 31, 2015, the defendant's jury trial commenced. On September 9, 2015, the trial judge allowed the defendant's motion for required findings of not guilty as to the armed robbery and assault by means of a dangerous weapon charges, and denied the motion as to the other charges. Two days later, the jury found the defendant guilty of murder in the second degree and the two firearms charges. The defendant now appeals those convictions, alleging a number of errors, and claims of ineffective assistance of counsel. We affirm.

Background. At approximately 10:00 P.M. on December 12, 2009, Davine Berry ran into a convenience store in Brockton with blood on his shirt. He frantically explained that his friend had been shot and asked someone to telephone 911. State police Trooper Robert Bohn followed Berry to the store after observing him driving his vehicle erratically. When confronted by the trooper, Berry directed him to Berry's vehicle. In the vehicle's passenger seat lay the body of the victim, Ralph Hyppolite, shot once in the head at close range, apparently killing him instantly. Brockton police Detective McDermott, responding at the convenience store a short time later, observed a green Ford Explorer pull into the parking lot. The driver exited and walked towards the crime scene before officers turned him away.

Brockton police officer Scott Landry arrived at the convenience store and spoke with Berry. Based on their conversation, Officer Landry drove to the Ash Street area near a playground. He searched the area with a flashlight, discovering a single cartridge casing which he photographed on the ground near the playground. Officer Landry left the cartridge in place and waited there for another technician or officer to retrieve it. Detective McDermott, also investigating the Ash Street area, noticed the same green Ford Explorer he had seen at the convenience store pull into an adjacent apartment complex, turn around, and drive away.

Berry showed Trooper Bohn a picture of a license plate from his cellular telephone. That license plate was registered to a vehicle whose owner resided at 19 Sofia Avenue in Brockton. Trooper Landry testified that a general broadcast came over the radio for a gray Honda Accord with a license plate matching the one in Berry's photograph registered to 19 Sofia Avenue. Officers directed to that area found the vehicle parked outside 19 Sofia Avenue. Detective Mercurio parked outside the house in an unmarked cruiser, and then observed the defendant, another man, and a woman, Ana Goncalves, exit the house and drive away in a different vehicle -- an older-style Lincoln. Police stopped that vehicle and placed the defendant in handcuffs before taking all three occupants to the police station.

Detective McDermott later returned to the Sofia Avenue area in order to locate the green Ford Explorer, which he found parked at a nearby house on Fitzpatrick Avenue. He then walked around that property's perimeter, including a wooded area lined by a fence. Walking along the fence, he eventually discovered, up against the fence, a firearm covered with leaves.

Trooper Michael Arnold responded to Ash Street, where he recovered the cartridge casing that Officer Landry had earlier discovered. He then proceeded to the house on Fitzpatrick Avenue to recover the firearm, a nine-millimeter Ruger pistol. Underneath the Ruger Trooper Arnold discovered a second firearm, a Sig Sauer pistol. After Trooper Arnold performed ballistic testing on both pistols, he concluded that the Sig Sauer fired the cartridge casing he found on Ash Street.

Discussion. 1. Sufficiency of the evidence. The defendant contends that the trial judge erred in denying his motion for a required finding of not guilty as to the murder charge. Specifically, the defendant argues that the Commonwealth introduced insufficient evidence to prove that he was the shooter, where the deoxyribonucleic acid (DNA) found on the gun belonged to the defendant and another unknown person, and where the evidence suggested that a number of people could have shot the victim.

A motion for a required finding of not guilty "should be denied if all the circumstances including inferences [that are not too remote according to the usual course of events] are of sufficient force to bring minds of ordinary intelligence and sagacity to the persuasion of [guilt] beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 676 (1979) (quotations omitted). "In evaluating the sufficiency of the Commonwealth's evidence, we consider the evidence introduced up to the time that the Commonwealth rested and the defense filed its first motion for a required finding of not guilty." Commonwealth v. Rarick, 87 Mass. App. Ct. 349, 351 (2015), quoting from Cramer v. Commonwealth, 419 Mass. 106, 112 (1994). We look to determine whether that evidence, viewed in a light most favorable to the Commonwealth, was sufficient to permit the jury to find all elements of the crime charged. Latimore, supra at 676-677. Here, we conclude that the Commonwealth presented sufficient evidence to permit the jury to find beyond a reasonable doubt that the defendant shot the victim.

Alanna Frederick, a forensic scientist at the Massachusetts State police crime laboratory, testified regarding the DNA testing performed on the Sig Sauer pistol and the results. She explained that the swab of the firearm contained a mixture of the defendant's DNA and DNA from another individual, with the defendant matching the major DNA profile. In addition, Trooper Arnold testified that after examining the firearms, their characteristics, and their firing pin impressions, he reached the opinion that the Sig Sauer firearm recovered on Ash Street fired the cartridge casing. Trooper Arnold's opinion, coupled with Frederick's testimony that the defendant matched the major DNA profile found on the firearm used to shoot and kill the victim, was sufficient for the jury to conclude that the defendant shot the victim with that firearm.

In addition to the firearm testimony, a witness placed the defendant at the scene of the shooting. Ana Goncalves testified that she drove the defendant from the house on Sofia Avenue to a playground near Ash Street. Just before the defendant exited her car, Goncalves heard a clicking noise that sounded to her like the sliding of a firearm rack. She also heard the defendant say, as he stepped out of the car, "[W]e're going to get him." The defendant told Goncalves to wait there, which she did. As the defendant walked toward the park, Goncalves could see a dark object in his hand. Goncalves's testimony permitted the jury's inference that when she dropped the defendant off at the scene of the shooting -- moments before it occurred -- he possessed a firearm. Less than ten minutes later, the defendant telephoned Goncalves and asked her to go back to the house on Sofia Avenue. When she did, she saw the defendant, who asked that she drive him and another man to New Bedford. Goncalves refused, but relented when the defendant demanded she do so. She described the defendant's demeanor at this time as "panic[ked]."

Finally, the jury heard testimony from Detective Carpenter that at the police station -- just before officers tested the defendant for gunshot residue -- he saw the defendant licking the four fingers of his right hand. This behavior suggested the defendant's consciousness of guilt, as someone who wanted to hide evidence that recently he had held a firearm as it discharged. See Commonwealth v. Oeun Lam, 420 Mass. 615, 617-618 (1995). Therefore, we conclude that the Commonwealth presented sufficient evidence to permit the jury to consider the murder charge. The judge properly denied the defendant's motion for a required finding of not guilty.

2. Expert testimony. The defendant next claims that the ballistician's testimony exceeded the permissible scope of so-called "toolmark" evidence. As there was no objection to the ballistician's testimony at trial, we review the alleged error for a substantial risk of a miscarriage of justice. Commonwealth v. Amirault, 424 Mass. 618, 653 (1997).

Commonwealth v. Pytou Heang, 458 Mass. 827 (2011), provides guidelines for the admissibility of forensic ballistics testimony. First, the expert must document the findings or observations that support his or her ultimate conclusion, and this supporting information must be provided to the defendant during discovery. Id. at 847. Second, prior to offering an opinion at trial, a ballistics expert should explain the theories and methodologies underlying the ballistics field. Ibid. Finally, a forensic ballistics expert may present an opinion of the toolmarks found on projectiles and cartridge casings "to a reasonable degree of ballistic certainty." Id. at 848.

Here, Trooper Arnold's testimony followed the guidelines set out in Pytou Heang. Trooper Arnold detailed his findings and observations supporting his ultimate opinion, and the defendant does not assert that he was not provided that information in discovery. The trooper explained at length the theories and methodologies behind the ballistics field, noting that the matching process is "opinion based." He detailed the process of gathering the ballistic evidence in this case, the characteristics of the two firearms and their ammunition, and the toolmark evidence both generally and with regard to the evidence in this case. Only after explaining this to the jury did he state his opinion that the Sig Sauer pistol discharged the cartridge casing recovered on Ash Street.

It was likewise not error for the prosecutor to use the phrase "to a reasonable degree of professional certainty," instead of "ballistic certainty." While not in the form preferred by Pytou Heang, the use of the word "professional" did not "imply the presence of a firm statistical basis where none has been demonstrated." Pytou Heang, supra at 849 (ballistics expert should avoid using language such as "absolute certainty"). As noted above, Trooper Arnold prefaced his opinion by testifying that forensic ballistics is inherently subjective and opinion based. As such, use of the term "professional certainty" did not serve to connote a higher degree of certainty than "ballistic certainty." The same can be said of the defendant's claims that the trooper's use of the word "match" was improper. Trooper Arnold gave his testimony regarding a "match" between the recovered cartridge casing and the Sig Sauer pistol as his opinion, which he testified was subjective based on his training and experience. As with all witnesses, jurors were free to credit or to disregard his testimony as they saw fit. Accordingly, the defendant has failed to show that there was an error resulting in a substantial risk of a miscarriage of justice.

Judgments affirmed.

      A "major" DNA profile "comes across [in the testing] consistently at much higher levels than the rest of [the] mixture." Commonwealth v. McGrail, 80 Mass. App. Ct. 339, 341 n.4 (2011).

      "Forensic ballistics or firearms identification is the analysis of bullet and cartridge case evidence and the use of that evidence to link specimens to each other and to particular weapons.... The theory underpinning forensic ballistics is that all firearms possess distinctive features that in turn impart distinctive markings or 'toolmarks' onto projectiles and cartridge casings when the weapon is fired. Using a microscope, firearms examiners compare toolmarks found on spent projectiles and cartridge casings to determine whether they were fired from a particular weapon, generally by comparing projectiles and cartridge casings found at the scene of a crime or in an autopsy with ones test-fired from a seized weapon." Commonwealth v. Pytou Heang, 458 Mass. 827, 836, 837-838 (2011) (quotations omitted).

      It is not for us to second-guess the Supreme Judicial Court's Pytou Heang standards, as the defendant asks us to do, based on questions raised about ballistic evidence in a 2016 report of the President's Council of Advisors on Science and Technology, which we note postdates the trial in this case and no copy of which is in the record.

      In concluding that the forensic ballistics expert's testimony was proper, we also necessarily conclude that the defendant's claim of ineffective assistance of counsel must fail. Defense counsel's failure to object to admissible testimony is plainly not a "manifestly unreasonable" tactical decision. Commonwealth v. Martin, 427 Mass. 816, 822 (1998). Furthermore, the defendant is not aided by the fact that he brings this claim as part of his direct appeal and unsupported by an affidavit from trial counsel, where such claims are in their "weakest form." Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002). The preferred vehicle for such claims is a motion for new trial. Commonwealth v. Zinser, 446 Mass. 807, 810-811 (2006).


text:
    Howard BAILEY v. COMMUNITY RESOURCES FOR JUSTICE, INC.
    17-P-671
    Appeals Court of Massachusetts.
    Entered: July 5, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The very limited record properly before us reflects that plaintiff Howard Bailey's employment with defendant Community Resources for Justice, Inc. (CRJ), terminated in 2005. This action, commenced in November, 2015, is the most recent of several Bailey has since brought against the CRJ, Bailey here alleging that the CRJ failed to "honor[ ] [its] obligation to the terms of DIA # 18718-05"; and that the CRJ "tampered with evidence" and "committed perjury and introduced a forged document" in some unspecified earlier proceeding. A Superior Court judge dismissed Bailey's complaint on the CRJ's motion pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974). We affirm.

We first observe that Bailey did not oppose the CRJ's motion; he has thus waived his present arguments. See Weiler v. PortfolioScope, Inc., 469 Mass. 75, 86 (2014). In any event, Bailey's allegations are fatally defective, and his complaint properly was dismissed, because he has alleged in his complaint no facts that plausibly suggest he can state any viable cause of action.

Moreover, and to the extent we understand Bailey's allegations, his claims appear to be barred by the earlier judgment in Bailey vs. Community Resources for Justice, Inc., U.S. Dist. Ct., No. 14-CV-11050 (D. Mass. Apr. 3, 2015) (USDC action). Bailey's allegations in the USDC action appear to concern the same general subject matter and factual nexus as those in the matter before us; the two actions are between the same parties; and the prior USDC action was dismissed, on the CRJ's pleading motion, on the merits with prejudice. The USDC judgment is final. Accordingly, all matters now alleged by Bailey either were or should have been raised in the earlier USDC action and he may not relitigate them here. See and compare Massaro v. Walsh, 71 Mass. App. Ct. 562, 564-567 (2008).

No error appearing, the judgment is affirmed.

So ordered.

Affirmed.

      Bailey does not amplify this allegation but it appears to be a reference to the $10,000 lump-sum settlement, approved by the Department of Industrial Accidents in 2007, that resolved Bailey's 2005 workers' compensation claim.

      In his brief, but not in his complaint, Bailey generally asserts that the CRJ does not provide Bailey's "prospective employers ... factual service dates which make it impossible for him to re-enter the work force." Bailey goes on to assert that the CRJ "is not rehiring [Bailey] because [of] his age and disabled veteran status" and that the CRJ is "misleading the lower court as to important dates, evidence[,] etc., that Boston Municipal Court ruled that [Bailey] was terminated ten days after he stopped work."

      We take judicial notice of the USDC action's docket. See Brookline v. Goldstein, 388 Mass. 443, 447 (1983). As reflected on that docket, the judgment entered on April 3, 2015. Bailey did not notice an appeal from the judgment and his motion for leave to file a late notice was denied on June 19, 2015. Bailey did not notice an appeal from the June 19 order. See also § 7 of the affidavit of Ari Zivyon, CRJ's counsel in the Superior Court action, dated December 3, 2015.


text:
    Kim BAKER v. Lilo Ben ZICRON.
    17-P-1363
    Appeals Court of Massachusetts.
    Entered: July 5, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   In June, 2015, the plaintiff filed a complaint in the Superior Court, raising a number of claims arising out of his purchase of four 1960s-era racecars from the defendant, Lilo Ben Zicron. The parties engaged in mediation, and in April of 2016, they executed a written settlement agreement (agreement). The agreement required the defendant to pay $950,000 to the plaintiff pursuant to certain terms and conditions. If the defendant satisfied all of its terms, the parties would file a stipulation dismissing the Superior Court case with prejudice. The agreement also required the defendant to execute an agreement for judgment for $950,000, to be held in escrow by plaintiff's counsel, which would only be filed pursuant to the terms of the agreement.

The agreement required the defendant to sell three of the plaintiff's vehicles on a consignment basis pursuant to a schedule. The defendant was to remit the proceeds of each sale to the plaintiff, to be applied to the $950,000 debt. The first vehicle, a 1969 Lola racecar, was to be sold by October 20, 2016. On October 19, defendant's counsel sent plaintiff's counsel a document purporting to be a purchase agreement for the 1969 Lola. It required the buyer, Gideon Group Holdings, LLC (Gideon), to pay the defendant in three installments: a $10,000 deposit upon execution of the purchase agreement, a $132,500 payment due January 15, 2017, and a final payment of $132,500 due March 15, 2017. The purchase agreement stated that the defendant would retain possession of the vehicle and its "ownership documents" until the final payment was made.

Plaintiff's counsel replied by sending the defendant a notice of breach, stating that the purchase agreement did not constitute a timely "sale" by October 20, 2016, as mandated by the agreement. The defendant denied breaching any part of the agreement. As a result, the plaintiff filed a motion for entry of judgment. After a nonevidentiary hearing, a judge allowed the motion. The defendant now appeals. We affirm, but for reasons different from those of the motion judge. See Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638, 639 (2002). See also GTE Prods. Corp. v. Stewart, 421 Mass. 22, 36 (1995).

Discussion. "A settlement agreement is a contract and its enforceability is determined by applying general contract law." Sparrow v. Demonico, 461 Mass. 322, 327 (2012). It is uncontested that the agreement is a valid and enforceable contract between the parties. Rather, the heart of the parties' dispute is the construction of the terms "sale" and "sell," which are undefined in the agreement. The defendant argues that the terms "sale" and "sell" should be construed to include installment sales such as the one reflected by the purchase agreement, thereby making that a timely sale under the agreement, even though the entire purchase price would not be paid until five months later. We are unpersuaded.

The parties acknowledge that the sale of the 1969 Lola was a consignment sale under the terms of the agreement. Such a sale is governed by Article 2 of the Uniform Commercial Code (UCC). G. L. c. 106, §§ 2-101 et seq. According to the UCC, "a 'sale' consists in the passing of title[ ] from the seller to the buyer for a price." G. L. c. 106, § 2-106(1). Concerning passage of title, "Unless otherwise explicitly agreed title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods...." G. L. c. 106, § 2-401(2). Here, the defendant and Gideon included no language in their purchase agreement governing passage of title. The defendant submits that, because no title document exists for the 1969 Lola, and because the purchase agreement specified that the vehicle would remain in the defendant's possession until the entire purchase price is paid, UCC § 2-401(3)(b ) applies ("if the goods are at the time of contracting already identified and no documents of title are to be delivered, title passes at the time and place of contracting"). We disagree.

The defendant's physical retention of the 1969 Lola is not dispositive of "the time and place at which the seller completes his performance with reference to the physical delivery of the goods" under the UCC. G. L. c. 106, § 2-401(2). Section 2-503(1) describes acceptable methods of a seller's tender of delivery and states in part: "Tender of delivery requires that the seller put and hold conforming goods at the buyer's disposition and give the buyer any notification reasonably necessary to enable him to take delivery. The manner, time and place for tender [of delivery] are determined by the agreement and this Article ..., and if it is of goods they must be kept available for the period reasonably necessary to enable the buyer to take possession...." (Emphases added). G. L. c. 106, § 2-503(1) Thus, in a transaction where the goods do not physically move, the inquiry into whether title has passed and a "sale" has occurred focuses on "whether goods are placed within the actual or constructive possession of another." Circuit City Stores, Inc. v. Commissioner of Rev., 439 Mass. 629, 637 (2003) (Circuit City ).

Here, while the purchase agreement specified that the 1969 Lola was to be sold "where is," i.e., it would remain at the defendant's shop, it also provided that "[the defendant] shall retain possession of the Vehicle and any ownership documents until the entire purchase price is paid." Unlike the store in Circuit City, supra, here the defendant did not hold the 1969 Lola "at the buyer's disposition," upon execution of the purchase agreement; nor is there anything in the record to suggest that the defendant notified Gideon that he was prepared to tender the vehicle to it at that time. See Mechanics Natl. Bank v. Gaucher, 7 Mass. App. Ct. 143, 149 (1979) (no sale of mobile home occurred because customer did not tender full purchase price and dealer failed to transfer possession by delivery to customer). Instead, the purchase agreement plainly states that Gideon has the right to possess the vehicle only after the full purchase price is paid. As such, the defendant's performance, and thus the sale of the 1969 Lola, would only be completed with respect to delivery once Gideon made the last payment in March of 2017. Thus, construing the purchase agreement pursuant to Article 2 of the UCC, the sale of the 1969 Lola would not occur until title passed to Gideon in March of 2017, well outside the October 20, 2016, deadline. Therefore, we conclude that the mere execution of the purchase agreement between the defendant and Gideon did not constitute a timely "sale" under the terms of the agreement.

Accordingly, we agree with the Superior Court judge that the defendant materially breached the agreement when he failed to sell the 1969 Lola by October 20, 2016, justifying the entry of judgment against the defendant.

Amended judgment affirmed.

Order denying motion for reconsideration affirmed.

      Records from the Nevada Secretary of State indicate that Gideon's officers are Jonathan Benzicron, Klara Benzicron, and Puah R. Benzicron, whose addresses are the same as the defendant's. The purchase agreement was signed on behalf of Gideon by a "Puah Benz Sol."

      Gideon paid the $10,000 deposit, which the defendant then paid to the plaintiff pursuant to the agreement.

      The plaintiff filed his motion for entry of judgment because the defendant failed to provide him with an executed agreement for judgment, as the agreement had required. While the latter failure, by itself, arguably breached the agreement, the plaintiff also failed to give the defendant the required notice of breach of that condition. In light of our holding, we express no opinion on the issue.

      The defendant also appeals the denial of his motion for reconsideration, wherein he raised, for the first time, many of the arguments he now makes on appeal.

      Because the parties cooperated in the drafting of the agreement, they included language in it providing that any ambiguity in any provision therein would not be construed against either party.

      While the UCC "instructs us ... that the rights and obligations of parties under the [UCC] should be sorted out without traditional dependence on the concept of title," Mechanics Natl. Bank v. Gaucher, 7 Mass. App. Ct. 143, 146 (1979), strict reliance on the passing of title is nevertheless required when an applicable UCC provision "refers to such title." G. L. c. 106, § 2-401. Such is the case here.

      The judge evidently assumed that the 1969 Lola did have a title document, due to references in the agreement to a title document for a different vehicle.

      It is not stated in the record whether Gideon ever made the final payment and received possession of the 1969 Lola.