text:
    Richard H. PEARSON, trustee, & another v. BAYVIEW ASSOCIATES, INC.
    17-P-428
    Appeals Court of Massachusetts.
    Entered: February 23, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Of the Southwest Trust.

      Bonnie B. Pearson, as trustee of the Southwest Trust.

   The plaintiffs, Richard H. and Bonnie B. Pearson, as trustees of the Southwest Trust (the Pearsons), appeal from a Land Court judgment declaring that a right of way easement first recited in a 1927 deed does not reach certain land in Wareham owned by the Pearsons, and does not confer upon them any right to pass and repass to and from their land over what is now Bayberry Road, a private way that the defendant, Bayview Associates, Inc. (Bayview), claims to own. Bayview conditionally cross-appeals from certain findings the judge made after trial. We vacate the judgment, reject Bayview's challenges to the findings, and remand for further proceedings to determine precisely where the right of way emanates from the Pearsons' land onto Bayberry Road.

1. Background. We draw our summary of the basis of this dispute from the judge's thorough and thoughtful memorandum of decision, issued after a bench trial involving numerous recorded deeds and plans and the testimony of three expert witnesses, a surveyor, and two real estate lawyers who had examined those documents. Before agreeing to hear those witnesses, the judge appropriately made clear that "no matter how good they are," he was "not going to look to ... any kind of lawyer to tell [him] how to read the documents ...." "The basic principle governing the interpretation of deeds is that their meaning, derived from the presumed intent of the grantor, is to be ascertained from the words used in the written instrument, construed when necessary in the light of the attendant circumstances." Sheftel v. Lebel, 44 Mass. App. Ct. 175, 179 (1998). Similar principles govern the interpretation of easements created by conveyances. Ibid. Where all of the evidence consists of documents and testimony explaining them, we may be in as good a position as the judge to decide issues of fact. See Stamper v. Stanwood, 339 Mass. 549, 551 (1959). Nevertheless we will review his findings of fact for clear error; we review his conclusions of law de novo.

The Pearsons are successors in interest to a roughly four-acre, and roughly rectangular, oceanfront parcel (the locus) earlier conveyed by one Carlton (the grantor) to one Godfrey (the grantee) in 1927, and eventually known as lot 1005. The 1927 deed conveyed, along with the fee to the locus, an easement (the 1927 easement) consisting of "a right of way suitable for the Grantee's purposes from a point at the Northeasterly side of the lot hereby conveyed to said Beach Road," and this same language appears in each subsequent deed conveying the locus. The land adjoining the northeastern side of the locus, also owned by the grantor in 1927, today includes a private way known as Bayberry Road, which connects to a public way known in 1927 as Beach Road.

The grantor, through other deeds and at various times after 1927, conveyed his remaining land around and adjoining the locus to other parties. That land was subdivided; it includes what is now Bayberry Road and adjoining lots on which homes have been built. The defendant Bayview, an association comprised of approximately twenty owners of such homes, claims to own Bayberry Road.

In 1999, the Pearsons divided the locus into lot 1005A (the northwestern portion of the locus), which they conveyed to third parties, and lot 1005B (the southeastern portion), which they retained for themselves. They did not expressly reserve, for the benefit of lot 1005B, any right of way over lot 1005A. Both lots 1005A and 1005B adjoin Bayberry Road along their northeastern boundaries; Buzzards Bay lies along their southwestern boundaries. Lot 1005A currently enjoys access to Bayberry Road (and from there to Beach Road) via a right of way, separate from the 1927 easement, over land lying to the northwest of lot 1005A, owned by the original grantor (Carlton) in 1927, and now owned by third parties (the Russetts). We later refer to that land as the Russett parcel.

Although the 1927 easement established a right of way "from a point at the Northeasterly side of the [locus] to said Beach Road," it did not itself precisely identify that point. The Pearsons-as successors in interest to the 1927 grantee-assert that the right of way begins at a point or points on Bayberry Road where it adjoins their lot 1005B. Bayview-as an association of successors in interest to the 1927 grantor-disagrees, contending that the right of way either begins from a point on Bayberry Road that adjoins lot 1005A (now owned by third parties), or else begins on the northwestern boundary of lot 1005A and runs over the Russett land.

The judge concluded that the 1927 grantor and grantee had "settled on a specific point" and, although its precise location was not stated in the deed and could not now be determined, it was "along what is now Bayberry Road, but just at and very near to the northwest corner of the land conveyed in the 1927 deed." In today's terms, the judge ruled, the easement begins at a point on Bayberry Road that is "at and immediately near the northwest corner of ... [l]ot 1005A" and "in no way reaches to any part of [l]ot 1005B's ... boundary along Bayberry Road." Accordingly, the judge ruled, "[t]he Pearsons, as owners of [l]ot 1005B, have no record right under the 1927 deed to pass to and from their land onto and over Bayberry Road." As a result of that decision, it appears that as a practical matter, unless the Pearsons' lot 1005B has non-record rights, e.g., an easement by prescription, it is inaccessible by land.

Discussion. To determine the existence and attributes of a right of way, we look:

"to the intention of the parties regarding the creation of the easement or right of way, determined from 'the language of the instruments when read in the light of the circumstances attending their execution, the physical condition of the premises, and the knowledge which the parties had or with which they are chargeable.' "

Adams v. Planning Bd. of Westwood, 64 Mass. App. Ct. 383, 389 (2005), quoting from Boudreau v. Coleman, 29 Mass. App. Ct. 621, 629 (1990).

Here, the judge based his conclusion that the easement was located at or very near the northwestern corner of the locus on three essential grounds: (1) an interpretation of the phrase "suitable for the Grantee's purposes" as appearing in the 1927 easement; (2) consideration of the so-called Titus Plan mentioned elsewhere in the 1927 deed; and (3) a resulting decision not to apply the principle that unclear language in deeds is construed most strongly against the grantor. Considering each ground in turn, we conclude that, because neither the quoted phrase nor the Titus Plan clearly located the easement at or near the northwestern corner, the deed should be construed against the grantor and the easement is therefore located at or very near to the northeastern corner. Turning to Bayview's cross appeal, we find unpersuasive its arguments that three of the judge's findings rejecting alternative locations for the easement were premature. Finally, we conclude that, on remand, the judge should apply certain equitable principles in determining the exact location and bounds of the easement.

1. "The Grantee's purposes." The Pearsons emphasized at trial that the 1927 easement was required to be "suitable for the Grantee's purposes" and that the grantor could reasonably have anticipated that the grantee might subdivide and develop the locus. Therefore, they argued, the most reasonable interpretation was that the grantor intended to locate the easement at that "point at the Northeasterly side of the [locus]" that was closest to the northeastern (rather than northwestern) corner, because then the easement would allow subdivisions and development of the locus without landlocking any newly created subdivision lots.

The judge disagreed, concluding that the phrase "suitable for the Grantee's purposes" meant only "suitable for the grantee to access Beach Road," as this was "the dominant, and only really explicit, purpose of the right of way-to get out to the road." Accordingly, the judge ruled, not only was the Pearsons' interpretation not "the most reasonable interpretation of the deed," but "[n]o good reason exists why [the grantee] would need or desire to locate the access point" any farther than necessary from Beach Road-that is, any farther than necessary from the northwestern corner of the locus, the point closest to Beach Road. In sum, the judge determined, the 1927 deed located the right of way on Bayberry Road "at a definite point at or very near to the northwestern corner of the locus[.]"

Interpreting the deed as clearly placing the point at that location was an error of law, or, to the extent it was a finding of fact, clearly erroneous. The judge reasoned that locating the easement's beginning point at the northeastern corner of the locus would be "contradictory to the language of the deed." But no language in the deed specifies where along the northeastern side "the point" is. The judge also reasoned that locating that point at the northeastern corner was "unreasonable and unnecessary for [the grantee's] purpose-gaining access to a public way." But the deed refers to "purposes," in the plural, and expressly refers to permissible development of the locus, which locating the easement at the northeastern corner would facilitate. Indeed, as the judge acknowledged, when the 1927 easement was created, the grantor himself was in the process of subdividing his remaining lands.

Most significantly, reading the phrase "suitable for the Grantee's purposes" as meaning "suitable for the grantee to access Beach Road" would render the phrase superfluous, contrary to settled interpretive principles. Even without that phrase, the 1927 easement would still have established "a right of way ... from a point at the Northeasterly side of the lot hereby conveyed to said Beach Road," plainly indicating that its purpose was to provide access to Beach Road. The phrase "suitable for the Grantee's purposes" must therefore have been intended to add some meaning. Its words reflect the grantor's understanding both that the grantee might have multiple purposes for the right of way and that the easement should accommodate those purposes.

We do not mean to suggest that the deed clearly located the beginning point of the easement near the northeastern corner of the locus or at any other particular point along its northeastern boundary. We conclude only that the deed, considered in light of the factors mentioned in Adams, 64 Mass. App. Ct. at 389, cannot be read as clearly locating the beginning point at or near the northwestern corner. The "deed is ambiguous because its meaning, as far as the right of way is concerned, is uncertain and susceptible of multiple interpretations." Hamouda v. Harris, 66 Mass. App. Ct. 22, 26 (2006).

2. The Titus Plan. The 1927 deed, after the describing the locus by its metes and bounds, also referred to it as "the parcel of land marked '4 Acres' on a certain plan made by John E. Titus Landscape Architect, ... [r]evised February 7, 1927, said plan to be recorded herewith, and to which plan reference is to be had." The Titus Plan was never recorded and could not be located despite the parties' diligent efforts. The judge initially mentioned the Titus Plan in his findings of fact, but only to "infer" that it "quite likely" answered the question of where the 1927 grantor and grantee intended the easement to be.

In discussing the conclusions to be drawn from his findings, the judge went further:

"While it is not necessary for me to make such a finding to resolve the question tried to me, what I conclude occurred is that, in 1927, when [the grantor] sold the locus to [the grantee], there was already in existence a right of way leaving from the conveyed land along its northeastern side line, very close to its northwestern corner. This right of way headed from there in a northerly and westerly direction towards the Beach Road. It is fair to infer that this right of way, because it was in existence already, was known to the parties to the 1927 deed, and was depicted on the 1927 Titus Plan."

In the end, however, the judge placed considerable weight on the Titus Plan:

"As I have said, the deed's explicit reference to the 1927 Titus Plan proves that the parties looked to that plan specifically to memorialize and illustrate their agreement about the right of way's definite location. Their failure to record or preserve that plan leaves us today somewhat unsure where exactly that location of the easement was planted by the parties, but I harbor no uncertainty that they did fix the right of way in a specific place." (Emphasis added.)

We view this statement about the Titus Plan as an erroneous legal conclusion, or, to the extent it is a finding of fact, clearly erroneous. No language in the 1927 deed states or implies that a right of way is depicted on the Titus Plan or otherwise suggests any connection between the right of way and that plan. The deed does not, after referring to the right of way, state, "as shown on the Titus Plan," or anything to that effect. Indeed, the deed's only other reference to the Titus Plan, set forth in the margin, shows that had the parties meant to refer to the Titus Plan to clarify what portion of the locus was meant by the deed's easement language, they knew how to do so.

Although the evidence did not compel a conclusion that the Titus Plan did not show the location of the easement, the judge's conclusion that it did show the location was speculative. The deed's references to the missing Titus Plan cannot support a determination that the parties definitely intended the easement to begin at a point at or near the northwestern corner of the locus.

3. Construing the deed against the grantor. "It is a rule in the construction of deeds, that the language, being the language of the grantor, is to be construed most strongly against him." Bernard v. Nantucket Boys' Club, Inc., 391 Mass. 823, 827 (1984), quoting from Thayer v. Payne, 2 Cush. 327, 331 (1848). This interpretive canon is useful when questions arise "from the ambiguity, brevity, or uncertainty of the descriptive words used." Atkins v. Bordman, 2 Met. 457, 463 (1841). The underlying rationale is that the grantor "selects the terms, and it [is] supposed that he will insert all that has been agreed upon beneficial to himself, and will be less careful to state fully all which is beneficial to the grantee." Johnson v. Jordan, 2 Met. 234, 240 (1841). Here, construing the 1927 easement most strongly against the grantor would mean that the undefined "point at the Northeasterly side of the lot" is located at or very near the northeastern corner of the lot, because a right of way originating at that point would burden more of the grantor's then-retained land than would a right of way originating at any other point along the northeastern side of the lot.

The judge declined to apply this interpretive canon, for two reasons. First, he "observe[d] that this canon, where matters of description are concerned, is best and more often applied to resolve the tension between multiple distinctly conflicting provisions within a deed, and not so often to give meaning to one ambiguous descriptive provision." Based on the cases cited by the judge and the parties in their briefs, we express no view about where the canon is best or most often applied. But we know of no decision expressing a preference for applying the canon in the first class of cases, or suggesting that it is less useful in the second class, which includes the present case. The canon was applied in Estes v. DeMello, 61 Mass. App. Ct. 638, 641 (2004), a case involving a single purported condition on a deeded easement, and has been applied in several Land Court decisions, cited by the Pearsons, involving single disputed provisions. And the rationale for the canon, as stated in Johnson, supra at 240-241, appears equally applicable to both classes of cases.

Second, the judge declined to apply the canon because, although it can "help break a tie," it does not control in every case; in this case, "many other factors" supported locating the easement's beginning point at or very near the northwest corner of the locus, and there was "no occasion to apply the canon to upend the result called for by the clear weight of the evidence." But we have concluded above that the two principal factors the judge relied upon-the language creating the easement, construed in light of the factors mentioned in Adams, 64 Mass. App. Ct. at 389, and the deed's references to the Titus Plan-cannot be read as clearly locating the beginning point at or near the northwestern corner of the locus.

Therefore, it was error not to construe the deed most strongly against the grantor, meaning that the easement originates at a point at or very near the northeastern corner. This conclusion is subject to an important qualification, which we address after disposing of Bayview's cross appeal.

4. Bayview's cross appeal. Bayview argues that, if we vacate the judgment, we should not remand for the purpose of fixing the right of way's location and bounds, but instead should vacate three of the judge's findings-which Bayview contends went beyond the scope of the trial as originally defined by the judge -and remand to allow Bayview to present fact witness testimony on those issues. We disagree.

a. First challenged finding. The first finding Bayview challenges is that the original right of way existed at a point along the northeastern side of the locus. Bayview asserts that its fact witnesses would have testified that as of the early 1950s, there was a "well-worn path" leading to Beach Road from the northwestern side of the locus (now the northwestern boundary of lot 1005A) over what is now the Russett parcel, and that this path is where the parties to the 1927 deed, notwithstanding its language, actually intended to locate the right of way. We find persuasive, however, the judge's reasoning that there was no reason to believe that, in and around 1927, the parties would have departed from the language of the deed in this manner.

To be sure, and as the judge recognized elsewhere in his decision, unclear language in a deed may be clarified by the parties' subsequent conduct and use of the land, "providing the acts relied upon are not so remote in time or so disconnected with the deed 'as to forbid the inference that they had relation to it as parts of the same transaction or were made in explanation or characterization of it.' " Boudreau v. Coleman, 29 Mass. App. Ct. 621, 632 (1990), quoting from Bacon v. Onset Bay Grove Assn., 241 Mass. 417, 423 (1922). In Boudreau, supra, actions taken between ten and sixteen years after the deeds in question were "removed in time" and "merit[ed] little weight in determining the presumed intent of the parties to [those] deeds." Id. at 632-633. In Bacon, supra, actions taken twenty years after a deed, see id. at 421, 424, were too "remote" to "show[ ] an intent proper to be considered in the construction of the deed." Id. at 424. It follows that here, even if a "well-worn path" observed in the early 1950s permitted an inference that the path was created as early as the late 1940s, that would still be approximately twenty years after the 1927 deed, too remote in time to bear on the intent of the parties to that deed.

b. Second challenged finding. The second finding Bayview challenges is that the 1927 easement has an existence separate from the right of way over what is now the Russett parcel. Bayview asserts that its fact witnesses would have testified that the parties, by their conduct and acquiescence, relocated the 1927 easement to the right of way over the Russett parcel (or, put differently, substituted a right of way over the Russett parcel for the 1927 easement), pursuant to the principles stated in Proulx v. D'Urso, 60 Mass. App. Ct. 701, 705 (2004). The judge found that there was no evidence of such a relocation; Bayview now argues that the judge should not have so found before hearing from its fact witnesses.

We disagree. Such a relocation can occur only by the conduct of "the parties," ibid., i.e., the dominant and servient estate owners. In this instance, such a relocation could have occurred only at a time when the original servient estate (the land to the northeast, over which Bayberry Road now passes) and the claimed substituted servient estate (the Russett parcel to the northwest) were under common ownership, so that their owner could relocate the easement from the former location to the latter with the acquiescence of the owner of the locus. Such common ownership existed through 1944, as of which time both parcels were owned by one Jacoby, a successor in interest to the original grantor (Carlton). But in December, 1944, Jacoby conveyed the Russett parcel to one Messenger. Thereafter, the Pearsons assert, the two parcels were not under common ownership, and Bayview has not disputed this point. Thus no relocation as described in Proulx could have occurred after 1944. Because Bayview's fact witness testimony extends back no further than to what was observed in the early 1950s, the judge did not err or abuse his discretion in finding, without hearing that testimony, that no relocation had occurred.

c. Third challenged finding. The third finding Bayview challenges is that the 1927 easement, as assertedly relocated under Proulx to run over the Russett parcel, had not been subsequently relocated by a 1995 instrument executed by the Russetts and the Pearsons. Bayview's argument is entirely dependent on its argument regarding the second challenged finding, which argument we have rejected above.

5. Fixing the right of way's location and bounds. We add an important qualification to our conclusion that the easement originates at a point at or very near the northeastern corner of the locus. "Where the instrument creating an easement does not fix its location or bounds, a court may do so in the absence of agreement by the parties." Cater v. Bednarek, 462 Mass. 523, 533 (2012). See Burnham v. Mahoney, 222 Mass. 524, 529 (1916). In doing so, "a judge inevitably will confront a conflict between a dominant estate and a servient estate, and 'the public policy favoring socially productive use of land generally leads to striking a balance that maximizes the aggregate utility of the [dominant] and servient estate.' " Cater, supra, at 533-534, quoting from Restatement (Third) of Property (Servitudes) § 4.10 comment b (2000) (Restatement). "This generally means that a judge should strike 'a balance between minimizing the damage to the servient estate and maximizing the utility to the [dominant estate],' ... recognizing that the holder of an easement is entitled to use the servient estate 'in a manner that is reasonably necessary for the convenient enjoyment' of the dominant estate." Id. at 534, quoting from Restatement §§ 4.8 comment b, 4.10. These principles are to be applied taking into account conditions at the dominant and servient estates as they exist at present. See Cater, supra at 527-530 & n.18 (recounting trial judge's application of principles in light of current conditions reflecting development since easement's creation); id. at 534 (concluding that "the judge ably applied these principles in establishing the location of the easement").

Here, although we have concluded that the right of way originates at a point at or very near the northeastern corner of the locus, the judge on remand (absent an agreement by the parties) should apply the Restatement's principles to fix the right of way's precise location and bounds. There may be a location along the northeastern boundary that better serves those principles than would a location at or very near the northeastern corner. We recognize that the right of way may remain appurtenant to both lots 1005A and 1005B. See Anzalone v. Metropolitan Dist. Commn., 257 Mass. 32, 36 (1926). But in light of the Restatement's principles, and of the fact that lot 1005A already enjoys access to Bayberry Road (and from there to Beach Road) via an easement over the Russett parcel that is distinct from the 1927 easement, we conclude that the right of way must originate entirely along the northeastern boundary of lot 1005 (not lot 1005A), as that is "reasonably necessary for the convenient enjoyment" of lot 1005B. Restatement § 4.10.

Conclusion. The judgment is vacated, and the case is remanded for further proceedings consistent with this memorandum and order.

So ordered.

Vacated and remanded.

      For simplicity we will refer to the Pearsons as owners, while recognizing that the Southwest Trust is the owner of record.

      Beach Road is known today as Little Harbor Road. For simplicity we refer to it herein as Beach Road.

      The grantor conveyed most of this land in 1928, but reserved to himself a 5.8 acre parcel adjoining the southeastern boundary of the locus, along with a right of way from the northeastern boundary of his parcel, across what is now Bayberry Road, out to Beach Road. The record does not clearly reflect when and to whom the grantor subsequently conveyed his parcel, but there is no dispute that the parcel's ownership has changed and that it has been subdivided.

      The judge further ruled that to the extent the Pearsons sought to establish such a non-record right over Bayberry Road, they could not do so in this case, but only in a separate action. The Pearsons challenge this ruling as an abuse of discretion. Because we rule in the Pearsons' favor on their claim of record rights, we need not reach this other issue.

      The deed restricts development, but only until 1950, to "single private dwelling houses (each such dwelling house to cost not less than [$10,000], bathhouses and boat houses." The deed prohibits, but only until 1950, use of the locus "for livery stables, hotels, boarding-houses, shops or factories, [or] for any trade, business, public amusement or entertainment, whatsoever." We recognize that the judge rejected the testimony of one of the Pearsons' expert witnesses that the deed "reflect[ed] an intent to convey an easement that would facilitate a broad range of purposes and uses of the locus." Even if that range is not "broad," it still encompasses the types of development expressly envisioned in the deed.

      The judge concluded that even if the grantee had been considering later subdivision, he would not have bargained with the grantor for the right to enter the locus any farther than necessary from its northwestern corner, because from there the grantee would have been able to reserve access across the most northwesterly new lot created by the subdivision to any other newly created lots. Although the grantee would have been able to do so, it would have been at least as advantageous to him to have the right to access such lots from a point closer to the northeastern corner of the locus, over the grantor's land instead of his own, using what is now Bayberry Road. The judge did not address this point.

      "The principles governing interpretation of a deed are similar to those governing contract interpretation. In the case of the latter, [a]n interpretation which gives a reasonable meaning to all of the provisions of a contract is to be preferred to one which leaves a part useless or inexplicable." Estes v. DeMello, 61 Mass. App. Ct. 638, 642-643 (2004), quoting from Jacobs v. United States Fid. & Guar. Co., 417 Mass. 75, 77 (1994).

      The judge's findings of fact adopted the suggestion of Bayview's expert witness that the phrase "suitable for the Grantee's purposes" was "intended to refer to the method of travel set up in the easement, rather than the grantee's future use of the locus." The expert had testified that the phrase encompassed travel "on foot, with animal-drawn carriages ... toboggans, moving on to motor vehicles ... unless there were words of limitation as to the type of use, the type of vehicle of conveyance, that essentially it's wide open for whatever the grantee wants to use with it." But it is settled as a matter of law that a right of way, unless otherwise restricted, is "properly subjected to animal and vehicular use, the theory being that such use, being necessary to the reasonable and proper use and enjoyment of the dominant estate, was within the contemplation of the parties." Marden v. Mallard Decoy Club,Inc., 361 Mass. 105, 107-108 (1972) (quotation omitted). See Crosier v. Shack, 213 Mass. 253, 256 (1913) ; Swenson v. Marino, 306 Mass. 582, 586-587 (1940). The grantor's use of the phrase "suitable for the Grantee's purposes" was therefore not necessary to achieve this result, and so the phrase must mean something more. To the extent the judge found as fact that the phrase referred only to the method of travel, that finding was clearly erroneous.

      The 1927 deed recites that certain restrictions apply to three particular portions of the locus. Those portions are first described individually, by reference to the deeds under which the grantor obtained title to them, and then collectively, by the phrase, "all of which land is shown on the plan of John E. Titus before referred to, and is there marked 'RESTRICTED,' to which plan reference is to be had."

      We agree with the judge's conclusion that the easement's reference to "a point" at the northeastern side cannot reasonably be construed to mean any or every point along that side, as the Pearsons had argued.

      The judge limited the trial to consideration of documents and expert witness testimony aimed at "the threshold (and potentially dispositive) issue of locating the record easement created in 1927." Other claims or theories asserted by the Pearsons were "held in abeyance" pending the result of the trial, recognizing that those claims and theories would involve additional fact witness testimony.

      Bayview's brief states that its fact witnesses would provide testimony about "the right of way utilized since the 1940s," but Bayview cites no record support for this claim.

      As stated in Proulx:
      "[An] original easement may be deemed relocated when the conduct of the parties is such as to permit a conclusion that a different easement had 'been substituted for the way mentioned in the deeds' because the evidence reflects 'a tacit understanding or an implied agreement,' manifested by the dominant owner's 'acquiescence' in the use of the different easement in lieu of the original for a number of years."
      Ibid., quoting from Anderson v. DeVries, 326 Mass. 127, 132 (1950). Anderson's separate statement that an easement cannot "be altered or changed without the consent of all parties in interest," 326 Mass. at 132, was abrogated in M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87, 90-91 (2004) (allowing servient estate owner to relocate easement unilaterally under conditions set forth in Restatement (Third) of Property (Servitudes) § 4.8(3) (2000). Bayview does not argue that such a unilateral relocation could have occurred or did occur here.

      If Bayview's position were otherwise, we would have expected Bayview to so argue in a reply brief in support of its cross appeal. Nor does the record not allow us to determine that the two parcels came under common ownership after 1944.

      We also note that the language of the 1927 deed placing the easement's beginning point "at the Northeasterly side of the lot" has continued to appear in each subsequent deed conveying the locus, including one in 1990.


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. Luis R. VALDES.
    16-P-1466
    Appeals Court of Massachusetts.
    Entered: February 22, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury trial in the District Court, the defendant, Luis Valdes, was convicted of violating an abuse prevention order, threatening to commit a crime, and intimidation of a witness. The defendant appeals claiming that the judge erred in allowing prior bad act evidence and hearsay testimony. We affirm.

Background. The jury could have found the following facts. The defendant and the victim, whom we shall call Pamela, had a romantic relationship between 2003 and 2008, from which a child was born. By 2014, the defendant had moved to Florida but came back to Massachusetts to visit family. On May 5, 2014, Pamela obtained a G. L. c. 209A restraining order (209A order) against the defendant. Four days later, on May 9, 2014, the defendant called the victim from a restricted telephone number and threatened to kill her. He told her if she extended the restraining order, "[she] wouldn't make it through the front door ... [and] would be bodied and thrown in the Merrimack River." Pamela telephoned the police the next day to report the incident.

Discussion. 1. Admission of prior bad acts. Prior to trial, the defendant filed a motion in limine to exclude all prior bad act evidence. After a voir dire hearing, during which Pamela testified, the judge allowed the motion as to an alleged rape of the victim, but otherwise denied the motion. Pamela testified that: (1) the defendant verbally and physically abused her between 2004 and 2008; (2) the defendant repeatedly threatened to kill her and throw her in the Merrimack River; (3) she obtained a 209A order in 2009 and another in 2012; (4) the defendant violated both 209A orders by telephoning Pamela from a restricted telephone number and threatening to kill her; (5) the defendant jumped into her automobile and choked her in front of their daughter; and (6) the defendant telephoned her multiple times in 2014 and threatened her safety. The defendant argues that this evidence was more prejudicial than probative and had not been previously disclosed.

The prosecution "may not introduce evidence that a defendant previously has misbehaved, indictably or not, for the purposes of showing his bad character or propensity to commit the crime charged, but such evidence may be admissible if relevant for some other purpose" such as to show a pattern of conduct, intent, and the relationship between a defendant and a victim, Commonwealth v. Helfant, 398 Mass. 214, 224 (1986), and cases cited, and if the probative value outweighs the risk of unfair prejudice. See Commonwealth v. Foxworth, 473 Mass. 149, 160 (2015). "[W]e afford trial judges great latitude and discretion" and "we uphold a judge's decision in this area unless it is palpably wrong." Commonwealth v. Sicari, 434 Mass. 732, 752 (2001).

We discern no error. The evidence was admitted to show the hostile nature of the defendant's relationship with Pamela, his motive or intent to commit the charged crimes, and Pamela's state of mind when she received the defendant's threatening telephone call. See Commonwealth v. Gil, 393 Mass. 204, 215-216 (1984) ; Commonwealth v. Bianchi, 435 Mass. 316, 322 (2001) ; Mass. G. Evid. § 404(b) (2015). Indeed, the increasingly violent nature of their relationship, his continued threats to kill Pamela and throw her body in the Merrimack River, and previous violations of the two 209A orders were probative of the defendant's state of mind and relevant to rebut his claim that this incident was a recent contrivance by Pamela to prevent the defendant from getting visitation with their daughter. See Commonwealth v. Butler, 445 Mass. 568, 575 (2005) ("The two protective orders demonstrated that the defendant and [the victim] had, at different times, a continuous hostile relationship and had been 'sufficiently estranged' "). Additionally, any possible prejudice was diminished by the judge's forceful instructions to the jury, on multiple occasions, of the limited purpose of the testimony. See id. at 576. Finally, nothing in the record indicates that the defendant specifically requested and the Commonwealth failed to provide prior bad act evidence. See Commonwealth v. Miozza, 67 Mass. App. Ct. 567, 574 (2006) (defendant needs to expressly request specific evidence). The defendant requested statements of witnesses in the pretrial conference report, but there is no indication in the record that the Commonwealth had possession of any witness statements not disclosed prior to trial.

2. Hearsay testimony. The defendant next claims that the judge erred in allowing Officer Stephen Beland to testify that Pamela told him that the defendant telephoned her, threatened to kill her, and ordered her not to go to court to extend the 209A order. The defendant contends that this hearsay statement was offered for its truth and therefore was inadmissible. The Commonwealth counters that the statement was offered for a proper, nonhearsay purpose. We agree with the Commonwealth as the defendant opened the door to this testimony when he cross-examined Pamela as he sought to impeach her by implying that her report to the police was inconsistent with her trial testimony. Furthermore, the defendant argued that Pamela's testimony was a recent contrivance in order to gain an advantage in an ongoing custody dispute. While a prior consistent statement of a witness is not admissible, "if a witness is impeached on cross-examination by a claim of recent contrivance or inducement, a statement that [she] made before [she] had an incentive to fabricate [her] testimony may be admitted." Commonwealth v. Barbosa, 457 Mass. 773, 797 (2010). Accordingly, it was not an abuse of discretion to admit Beland's testimony. See id at 797-798.

Judgments affirmed.

      The defendant cites to Commonwealth v. Picariello, 40 Mass. App. Ct. 902 (1996), to support his claim that the prior conduct was too remote in time and not relevant. Picariello does not apply as the evidence of prior abuse in that case was admitted to undermine the credibility of the defendant's alibi. See id. at 903. We also reject the defendant's contention that the evidence was too remote, as it is not about when the prior incident occurred, but rather the "logical relationship" between the crime charged and the prior incident. Commonwealth v. Facella, 478 Mass. 393, 405 (2017).

      The defendant's claim that the limiting instructions at multiple junctures of Pamela's testimony is indicative of the unfairly prejudicial nature of the testimony is misplaced. The trial judge "has discretion as to the time of [limiting] instructions," Commonwealth v. Carter, 475 Mass. 512, 526 (2016), and we presume that the jury followed the judge's instructions. See Commonwealth v. Helfant, 398 Mass. at 228.

      Notably, visitation issues did not arise until 2015, after the defendant's arrest.


text:
    M.K. v. D.K.
    17-P-788
    Appeals Court of Massachusetts.
    Entered: February 22, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant appeals from the issuance of a G. L. c. 209A abuse prevention order entered after notice on March 13, 2017, and its one-year extension issued by a different judge, entered on April 5, 2017. He contends that the plaintiff failed to demonstrate, at either hearing, that she was in reasonable apprehension of imminent serious harm. We affirm.

Background. The plaintiff filed an application for a 209A order, and an ex parte order issued, on March 3, 2017. With minor variations, the facts presented at the ex parte hearing and at the two hearings after notice, based on the plaintiff's affidavit and testimony, were the same.

The plaintiff and the defendant had been married for eleven years. The plaintiff had recently informed the defendant that she was unhappy in the marriage, and the couple had begun marriage counselling. The defendant became depressed, gained weight, and started hoarding. His attitude and conduct toward the plaintiff became increasingly erratic and paranoid, and he became intrusive and confrontational. He began searching through her telephone, electronic mail, trash, and purse. He photocopied notes in her purse that she had written for discussion with their counsellor and accused her of cheating on him.

Before work on the morning of March 3, 2017, the plaintiff met with a friend at her previous place of employment in Agawam. The defendant telephoned her to ask where she was and to talk about their relationship. The plaintiff said that she was seeing a friend and that it was not a good time to talk. Twenty minutes later, the defendant arrived at the building where the plaintiff had met her friend and confronted her about not spending time with him to work on their relationship. The plaintiff again told him that she did not want to talk, and she asked him to leave her alone so she could go to work.

Instead, when the plaintiff drove to work in Holyoke, the defendant followed closely behind in his truck. Frightened by the defendant's behavior, the plaintiff tried to telephone the security department at her workplace for an escort into the building. Unable to reach the security department, she parked in front of the building entrance. The defendant parked his car directly behind the plaintiff's car, and as she started to enter the building, again insisted that the plaintiff talk with him. When she declined and asked him to leave, the defendant started to get inside the plaintiff's car. She told him to get out of her car, but he refused, insisting that if she would not speak with him, the marriage was over and he wanted her out of the house. The plaintiff then went inside the building to get someone from security. The defendant got into his truck and drove away before security officers arrived outside. The plaintiff went to court that same day to apply for a 209A order.

The plaintiff testified that this incident, combined with the defendant's recent escalating erratic conduct and past incidents, caused her to fear for her safety. The defendant had been verbally abusive throughout their marriage, calling her derogatory names in front of family members. Several years before he had picked up the family's dog by the neck and punched it in the head after it scratched the paint of his truck. About one year before the plaintiff sought the 209A order, in the course of an argument with her, he punched a wall in the kitchen, breaking the sheetrock. She was also afraid because the defendant owned more than fifty guns, which at times throughout their marriage he had failed to secure properly; however, there was no evidence that he had ever misused or threatened her with a gun.

Discussion. "We review the issuance of an order pursuant to G. L. c. 209A for an abuse of discretion or other error of law." E.C.O. v. Compton, 464 Mass. 558, 561-562 (2013). "We accord the credibility determinations of the judge who 'heard the testimony of the parties ... [and] observed their demeanor' ... the utmost deference." Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 140 n.3 (2006), quoting from Pike v. Maguire, 47 Mass. App. Ct. 929, 929 (1999).

Under G. L. c. 209A, "a person 'suffering from abuse' by a 'family or household member' may seek protection from such abuse by application to the court for an order requiring the defendant (among other measures) to refrain from abusing or contacting the victim." Carroll v. Kartell, 56 Mass. App. Ct. 83, 85 (2002), quoting from G. L. c. 209A, § 3, as amended through St. 1998, c. 179, § 5. " 'Abuse' is defined by the statute as acts '(a ) attempting to cause or causing physical harm; (b ) placing another in fear of imminent serious physical harm; [or] (c ) causing another to engage involuntarily in sexual relations by force, threat or duress.' " Carroll v. Kartell, supra, quoting from G. L. c. 209A, § 1, as amended through St. 1996, c. 450, § 232.

Subsection (b ), which is the relevant part of the definition in this case, "closely approximates the common-law description of the crime of assault, and we are guided by the law of that crime." Carroll v. Kartell, supra at 86. "When a person seeks to prove abuse by 'fear of imminent serious physical harm,' our cases have required in addition that the fear be reasonable." Iamele v. Asselin, 444 Mass. 734, 737 (2005). "Accordingly, we consider whether 'the actions and words of the defendant placed [the plaintiff] in reasonable apprehension that physical force might be used against her.' " Carroll v. Kartell, supra, quoting from Commonwealth v. Robicheau, 421 Mass. 176, 181 (1995). "The standard for determining whether a defendant's acts rise to the level of abuse, however, is not subjective. Rather, the court looks to whether the plaintiff's apprehension that force may be used is reasonable." Carroll v. Kartell, supra at 87.

The judges did not abuse their discretion by finding that the defendant's escalating conduct toward the plaintiff, culminating with the incident on March 3, caused the plaintiff to reasonably fear imminent serious physical harm. The plaintiff described violent and abusive episodes leading up to her decision to end the marriage (she filed for divorce in the time between the two hearings). In the days leading up to the issuance of the ex parte order, the defendant's behavior had become increasingly erratic, paranoid, and possessive in response to the plaintiff's estrangement. The behavior culminated with the defendant, after being asked to leave the plaintiff alone, seeking her out where she had met a friend. He then followed her to her workplace, and when he was again asked to leave, he instead got into her car demanding that she speak with him. The defendant's behavior "combined ... to create a picture of a volatile situation in which the possibility of physical abuse was present." Commonwealth v. Gordon, 407 Mass. 340, 350 (1990). The fact that the defendant obeyed the 209A order between March 3 and April 5 "is not a ground for refusing an extension of the initial order." Iamele v. Asselin, supra at 738.

The defendant likens his conduct to that of the defendant in Carroll v. Kartell, supra at 84-85, who made "insistent" attempts to speak with the plaintiff at a brunch at the Museum of Science and, when rebuffed, "demanded" to telephone her that evening. However, unlike Kartell who, when asked to leave the plaintiff alone, responded by writing her a letter-rather than call her on the telephone, which, he wrote, "[she] might regard as intrusive," id. at 85-the defendant here followed the plaintiff to work and when he was again asked to leave her alone, got into her car. The plaintiff did not describe mere "[g]eneralized apprehension, nervousness, feeling aggravated or hassled," Woolridge v. Hickey, 45 Mass. App. Ct. 637, 639 (1998), but rather pointed to a pattern of escalating conduct and a specific instance that now placed her in imminent fear of serious physical harm. Her fear, when viewed in light of the "totality of the circumstances of the parties' relationship," Vittone v. Clairmont, 64 Mass. App. Ct. 479, 486 (2005), quoting from Iamele v. Asselin, supra at 740, was objectively reasonable.

We conclude that the judges did not abuse their discretion or err as a matter of law in determining that the defendant's conduct "created an apprehension of imminent serious physical harm on the part of [the plaintiff] that was objectively reasonable." Ginsberg v. Blacker, 67 Mass. App. Ct. at 143. The first judge had a sufficient basis for extending the ex parte 209A order for thirty days, and the second judge, for extending it for one year.

Orders entered March 13, 2017, and April 5, 2017, affirmed.

      We assume, without deciding, that the issuance of the second order after notice does not render moot the appeal from the issuance of the first order after notice. Compare C.R.S. v. J.M.S., 92 Mass. App. Ct. 561, 563-566 (2017) (issuance of order after notice renders appeal of prior ex parte order moot).


text:
    Donna KATIN v. The STOP & SHOP COMPANY, LLC.
    17-P-345
    Appeals Court of Massachusetts.
    Entered: February 28, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   While Donna Katin was shopping in a store owned by The Stop & Shop Company, LLC (Stop & Shop), she slipped and fell on an advertising sign that had fallen on the ground. She then brought this negligence action to recover damages for her injuries. A judge granted summary judgment for Stop & Shop, concluding that (1) under the traditional theory of premises liability, Katin could not prove that Stop & Shop had notice of the condition that caused her fall, and (2) the "mode of operation" theory of premises liability was not applicable to her claim. Katin appeals, challenging both rulings. We affirm.

Background. The basic facts are not in dispute. On March 25, 2010, Katin entered a Stop & Shop store and went directly to the area where the bread was sold. There, she slipped on a sign that was lying on the floor face down. Katin had been in the store for less than two minutes when she fell.

The only other person in the area was a male customer, who picked up the sign and showed it to Katin. The side of the sign that had been facing up was completely white and blended in with the color of the floor. The other side had red and blue lettering that resembled the "Wonderbread" logo. Katin observed that the sign was "very clean" with no dirt, footprints, or tire tracks. Nothing about its appearance suggested that it had been on the floor for an unreasonable amount of time.

Katin does not know how the sign ended up on the floor or how long it was there. Nearby, however, there was an empty display frame, which was freestanding, approximately thirty-six inches tall, and made of steel. According to one of the store managers, Louis D'Amato, the construct of the frame would have made it impossible for the sign to fall out on its own.

Accompanied by the male customer, Katin took the sign to the customer service desk and reported the accident. She told a manager she was "fine" and did not contact the store in the weeks that followed, even though the manager provided her with contact information and invited her to call. Nearly three years later, in February of 2013, Katin filed this lawsuit. At some point in that intervening three-year period, Stop & Shop lost or discarded the sign.

Discussion. "We review a decision on a motion for summary judgment de novo." Bowers v. P. Wile's, Inc., 475 Mass. 34, 37 (2016). Although negligence claims ordinarily raise factual issues for the jury, a defendant can still prevail on summary judgment "by demonstrating that the [plaintiff] has no reasonable expectation of proving an essential element of [her] case at trial." Petrell v. Shaw, 453 Mass. 377, 381 (2009). See Sarkisian v. Concept Restaurants, Inc., 471 Mass. 679, 681 (2015). An essential element of a premises liability claim, and the only one relevant for our purposes, is that the defendant must have had notice of the dangerous condition on the premises. See Bowers, 475 Mass. at 38.

1. Traditional theory. Under the traditional theory of premises liability, and "[w]here the condition consists of spillage on the floor," the notice element is established "if the operator of [the] business 'caused [the] substance, matter, or item to be on the floor; the ... operator had actual knowledge of its presence; or the substance, matter, or item had been on the floor so long that the ... operator should have been aware of the condition.' " Sarkisian, 471 Mass. at 682, quoting from Sheehan v. Roche Bros. Supermkts., Inc., 448 Mass. 780, 782-783 (2007). Katin does not claim that Stop & Shop caused the sign to be on the floor or had actual knowledge of its presence. She does claim, however, that there is a triable issue on whether the condition persisted for so long that Stop & Shop should be charged with constructive knowledge.

While Katin has no direct evidence as to how long the sign was on the floor, there could still be a triable issue if "the physical characteristics" of the sign were such that a jury could infer that enough time had passed for Stop & Shop to become aware of and remedy the condition. Sheehan, 448 Mass. at 784. See Gallagher v. Stop & Shop, Inc., 332 Mass. 560, 563 (1955) (jury could infer that store owner had constructive knowledge of ice cream on floor where "[s]ome appreciable time must have elapsed ... for the ice cream to have gotten into the condition it was in"). The only evidence on this point, however, is Katin's own deposition testimony that the sign was "very clean" with no shoe prints or other marks, which suggests that it was not on the floor for very long. Indeed, Katin conceded below that there was nothing about the sign's physical appearance to indicate that Stop & Shop allowed the condition to persist for an unreasonable amount of time.

Nevertheless, Katin contends that her claim should have gone to the jury because Stop & Shop has a safety and cleanliness policy that requires employees to pick up items that they see on the floor. Based on this policy, she argues, the jury could infer that employees acted carelessly by not "immediately retriev[ing]" the sign. But under the traditional approach to premises liability, store owners are afforded "a reasonable opportunity to discover and correct any hazards before liability attaches." Sheehan, 448 Mass. at 784. Stop & Shop cannot therefore be held liable for its employees' failure to "immediately" pick up the sign; rather, Katin must prove that Stop & Shop had notice that was "sufficient to allow time ... to remedy the condition." Ibid.

Katin further contends that, because Stop & Shop spoliated the sign, she is entitled to an adverse inference instruction of some kind (she does not specify), which would allow a jury to "conclude that the sign remained on the floor for an unreasonable length of time." The problem with this argument is that at no point did Katin demonstrate to the judge that the elements of spoliation were met. In opposing summary judgment, she asserted only summarily that she was entitled to sanctions because Stop & Shop failed to preserve the sign. Sanctions for spoliation do not extend, however, to "a fault-free destruction or loss of physical evidence." Kippenhan v. Chaulk Servs., Inc., 428 Mass. 124, 127 (1998). Instead, they are only appropriate if a party "negligently or intentionally loses or destroys evidence that the [party] ... knows or reasonably should know might be relevant to a possible action." Scott v. Garfield, 454 Mass. 790, 798 (2009). See Kippenhan, 428 Mass. at 127 ("The threat of a lawsuit must be sufficiently apparent ... that a reasonable person in the spoliator's position would realize, at the time of spoliation, the possible importance of the evidence to the resolution of the potential dispute"). Whether the threat of a lawsuit was sufficiently clear, and whether the party negligently or intentionally lost the evidence, involve factual issues that must be decided in the first instance by the judge. See Scott, 454 Mass. at 798. Here, the judge had no occasion to make such findings because Katin did not adequately raise the issues. As a result, we lack any meaningful record on which to consider her claim that she is entitled to an adverse inference instruction.

Furthermore, the judge did address one element of spoliation-whether the nonspoliating party was prejudiced by the loss or destruction of evidence, see Keene v. Brigham & Women's Hosp., Inc., 439 Mass. 223, 235 (2003) -and determined that Katin failed to demonstrate prejudice. We discern no abuse of discretion in this determination. As the judge found, no prejudice resulted from the loss of the sign because "the sign itself is not the only evidence of its condition at the time Katin fell"; "[t]here is also Katin's own testimony as to the sign's clean, white condition." Katin contends that this was error because, if she had the sign itself, she might be able to show that "it was resistant to track marks or dirt." But even then, she still would have no affirmative evidence that the sign was on the floor long enough for Stop & Shop to have discovered and removed it. We therefore agree with the judge that Katin has no reasonable expectation of proving actual or constructive notice under the traditional theory of premises liability.

2. Mode of operation theory. The mode of operation theory of premises liability "refine[s] the ... notice requirement in a narrow subset of premises liability cases" involving "harms caused by third parties, e.g., other business visitors." Sarkisian, 471 Mass. at 683. The theory developed largely as a means of addressing "the change in grocery stores from individualized clerk-assisted to self-service operations," Sheehan, 448 Mass. at 784, but has since been expanded outside of the self-service context. See Sarkisian, 471 Mass. at 683-685. In a case where the theory is applicable, the plaintiff need not prove actual or constructive notice, but instead "satisfies the notice requirement if [s]he establishes that an injury was attributable to a reasonably foreseeable dangerous condition on the owner's premises that is related to the owner's [chosen] mode of operation." Sheehan, 448 Mass. at 786.

Although Katin does not know how the sign ended up on the floor, the evidence, viewed in the light most favorable to her, creates a reasonable inference of third-party interference. In particular, D'Amato's testimony that the sign could not have fallen out of the frame on its own supports an inference that a customer either intentionally or inadvertently removed the sign from the frame. But mere "proof that a store's customer could have conceivably produced the hazardous condition" does not get Katin to the jury; after all, "nearly every business enterprise produces some risk of customer interference." Sarkisian, 471 Mass. at 684, quoting from Chiara v. Fry's Food Stores of Ariz., Inc., 152 Ariz. 398, 400-401 (1987). To survive summary judgment, Katin has the more onerous burden of showing that Stop & Shop employed "a 'particular' mode of operation that ma[de] the hazardous condition foreseeable, and a 'recurring feature of the mode of operation,' rather than one where the risk only 'conceivabl[y]' could arise from the mode of operation" (footnote omitted). Bowers, 475 Mass. at 41, quoting from Sarkisian, 471 Mass. at 684, 687. See Sarkisian, 471 Mass. at 684 (mode of operation approach is limited "to situations where a business should reasonably anticipate that its chosen method of operation will regularly invite third-party interference resulting in the creation of unsafe conditions").

Katin argues that she met her burden because Stop & Shop's "use of the freestanding sign to advertise items for sale on its self-service shelves created a foreseeable risk that customers would knock over or break the sign." We will assume, without deciding, that a relationship exists between the occurrence of the unsafe condition and Stop & Shop's self-service mode of operation. See Sheehan, 448 Mass. at 791 (dangerous condition must be foreseeable and "result[ ] from" proprietor's chosen mode of operation). Even with that assumption, Katin's claim cannot withstand summary judgment because she has no reasonable expectation of proving that the condition was a "recurring feature of the mode of operation." Sarkisian, 471 Mass. at 687. See Bowers, 475 Mass. at 41.

Sarkisian is instructive in this regard. There, the plaintiff slipped and fell on a wet dance floor in a nightclub. See 471 Mass. at 681. The dance floor had two bars from which patrons could purchase drinks served in plastic cups. See ibid. They were then permitted to consume their drinks on the dance floor itself or in a lounge area, which was accessible by stairs at the rear of the dance floor. See ibid. On these facts the Supreme Judicial Court concluded that the mode of operation approach applied to the plaintiff's claim, but was careful to note that she would not have survived summary judgment had she shown only that the nightclub "sells drinks to patrons who are then allowed to travel about the premises." Id. at 687. What allowed her to get to the jury was the additional evidence "that patrons who wish to travel between the bar and their seats are forced-as a recurring feature of the mode of operation-to navigate in the dark through a crowd of dancing people holding plastic cups filled with liquid over a wooden floor." Ibid. While "[s]pillage is conceivable in either circumstance," the dispositive inquiry, the court held, is whether "the regularity of such spillage [is] tied to the mode of operation in a manner that justifies placing the business on notice of the resulting unsafe condition." Ibid.

Here, there is no evidence that Katin's injury resulted from a condition occurring with a "regularity" "tied to" Stop & Shop's self-service model. It is certainly conceivable that a customer might interfere with advertising signs, just as it is conceivable that a bar patron might spill a drink while walking around the premises. But Katin has not presented any evidence from which a reasonable jury could find that fallen signs were a recurring feature of the way Stop & Shop operated. Unlike in Sarkisian, Stop & Shop's mode of operation did not create an inherent risk of the unsafe condition. Furthermore, Katin offered no evidence to contradict D'Amato's deposition testimony that the store had experienced no previous incidents of a sign falling out of its frame. Cf. ibid. (nightclub manager testified in deposition that "spills on the dance floor are part of the business").

In her brief Katin relies heavily on Bowers, which, like Sarkisian, was decided after the judge issued his order in this case. But in Bowers, there was evidence that the store owner "was aware that stones could be dislodged by people walking in the gravel area, and could end up on the walkway, creating a potential tripping hazard." 475 Mass. at 37. In particular, the record there contained deposition testimony from the store manager that the store had a "policy of having employees check the walkway whenever an employee was outside assisting a customer in the gravel area, or performing other work, approximately every fifteen minutes, at least in part due to concerns that stones might come to rest on the walkway as a result of customers walking in and around the gravel area." Id. at 42. In light of this testimony, the Supreme Judicial Court determined that there was "a genuine question of material fact whether the risk of dislodged stones from customers walking in the gravel area in order to look at and select items for purchase was not just a 'conceivable' risk, but, rather, a recurring risk created by [the store's] mode of operation." Ibid.

This case presents no such material factual dispute. Instead, the summary judgment record, even when viewed favorably to Katin, establishes at best that there was a conceivable risk that a customer would interfere with the sign and cause it to fall on the ground. Proof of only a conceivable risk does not get Katin to the jury. See Sarkisian, 471 Mass. at 684 ; Bowers, 475 Mass. at 41.

Judgment affirmed.

      For example, the judge had no occasion to decide whether the threat of litigation was so clear that Stop & Shop had a duty to preserve the sign for the three-year period between the date of the accident and the filing of this case.

      We note, however, that this is not a case like Sheehan or Sarkisian, where the unsafe condition resulted from spillage of a product that the proprietor intended for customers to handle or carry around the business establishment. See Sheehan, 448 Mass. at 781-782 (grapes that fell from display table); Sarkisian, 471 Mass. at 682, 685-686 (spilled drinks on dance floor). This case is also distinguishable from Bowers, where the unsafe condition-dislodged stones from a gravel area-resulted from the store's invitation to customers to walk through the gravel area, unassisted by store employees, to shop for products on display there. See 475 Mass. at 36 n.6, 41-42. Here, the sign was not for sale or intended to be handled by customers, and no evidence exists that the risk of it falling was created, or exacerbated, by customers helping themselves to products on the shelves. In other words, as the judge observed, the record does not establish that the risk of a fallen advertising sign is any greater in a self-service store than in other business establishments (such as banks and post offices) that also serve customers and advertise products.


text:
    COMMONWEALTH v. Shayna FERNANDEZ.
    15-P-626
    Appeals Court of Massachusetts.
    Entered: February 27, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury trial, the defendant, Shayna Fernandez, was convicted of manslaughter, see G. L. c. 265, § 13, and motor vehicle homicide while under the influence of alcohol, see G. L. c. 90, § 24G(a ), in connection with the deaths of Francis O'Hanley and Joseph Coppola. Following her convictions, she filed a motion for new trial, which was denied. She appeals from the judgments and from the order denying her motion for new trial. We affirm.

Background. We briefly summarize the facts as the jury could have found them, leaving some details for recitation as relevant to each of the issues discussed infra. On the morning of June 11, 2011, the victims were traveling northbound on Route 93 in Andover in a Chevrolet Blazer sport utility vehicle, which was driven by O'Hanley. Coppola was in the front passenger seat, and O'Hanley's son was in the back seat. The three were headed to New Hampshire for a fishing trip; a small boat was on a trailer hitched to the Blazer.

The defendant was driving a blue vehicle, traveling at a high rate of speed. Several witnesses commented on the alarming manner with which the defendant operated her vehicle. One eyewitness stated that the defendant was driving "like a bat out of hell"; he described that her blue vehicle merged onto Route 93 directly into the middle lane, then went to the left lane before it "darted back in right away to the middle lane and then, poof, out of sight." Another witness estimated that the defendant's vehicle was going 100 miles per hour as she passed his vehicle, which was traveling at seventy miles per hour. He recalled commenting on the defendant's speed: "Holy shit. That was fast." A different witness also estimated that the defendant's vehicle was going "[a] hundred or so" miles per hour. Yet another witness estimated the defendant's vehicle was traveling "at least 85" miles per hour when it passed her; as she saw the defendant's vehicle fast approaching, she recalled saying, "[O]h, my God, this car is going very fast."

As the defendant rapidly gained on the Blazer, the Blazer was either in the middle lane or possibly changing into the left lane. The defendant's vehicle got "very close" to the Blazer and then struck it from behind, thereafter swerving into and through the left lane and onto the grassy median. She then returned to left lane, striking the Blazer again and causing it to roll over and come to a stop on the left side of the highway near the guardrail. O'Hanley and Coppola were ejected from the Blazer and died. The defendant's vehicle continued across three lanes before coming to a rest on the right side of the highway in the breakdown lane.

Trooper R. Daniel O'Brien arrived at the scene and approached the defendant, who was crying and standing near the guardrail by O'Hanley's body. The defendant stated: "Oh, God, I killed them all." The trooper "intermittently" detected the odor of alcohol on the defendant as he interviewed her; one witness noticed "a very strong odor of alcohol on her breath." The defendant admitted to the trooper that she had "a few beers or two beers" the previous night. After subjecting the defendant to field sobriety tests, smelling alcohol on the defendant's breath, and noticing that the defendant's eyes were red, bloodshot, and glassy, the trooper opined that she was intoxicated and arrested her. During the booking process, the trooper detected that "her speech was slurred." The defendant, after being informed of her rights, consented to a breathalyzer examination. Two readings were taken, indicating a .13 percent blood alcohol level and a .12 percent blood alcohol level.

At trial, the defense was that O'Hanley had caused the accident because he was under the influence of marijuana and failed to signal before starting to change lanes as he moved the Blazer from the middle lane to the left lane of the highway. In support of this defense, trial counsel called an emergency department physician who opined that O'Hanley had recently used marijuana. The physician based his opinion on O'Hanley's toxicology report, which showed that he had twenty-seven nanograms per milliliter of blood of tetrahydrocannabinol (THC) in his body. The physician opined that this level of THC may have impaired O'Hanley's driving abilities. In addition, trial counsel disputed that the defendant's alcohol consumption had impaired her driving. Trial counsel elicited testimony, from both the Commonwealth's breathalyzer expert and the defendant's own expert, regarding certain methodological and calibration flaws of the breathalyzer machine used to measure the defendant's blood alcohol content, calling into question the reliability of the defendant's breathalyzer results.

As set forth supra, the defendant was convicted of manslaughter and motor vehicle homicide while under the influence of alcohol; the jury found her not guilty of two counts of motor vehicle homicide with a blood alcohol content of .08 percent or greater.

Discussion. 1. The prosecutor's closing argument. On appeal, the defendant maintains that several remarks by the prosecutor in closing argument were improper. Trial counsel did not object; accordingly, our review is limited to determining whether any error raises a substantial risk of a miscarriage of justice. Commonwealth v. Stewart, 411 Mass. 345, 356-357 (1991).

Having reviewed each of the remarks in the context of the prosecutor's closing argument as a whole and together with the trial judge's jury instructions, see Commonwealth v. Tuitt, 393 Mass. 801, 811 (1985), only two of them warrant discussion. First, the prosecutor improperly disparaged the defendant's medical expert by stating that, because he was paid $237 per hour, he was "an expert at making a quick buck." While "[e]vidence of an expert's billing rate is admissible as evidence of bias, and it is appropriate to remind the jury that an expert was retained by the defendant," Commonwealth v. Bishop, 461 Mass. 586, 598 (2012), it is improper to characterize an expert as a "hired gun" whose testimony was "bought" where (as here) there is no evidence that the expert was paid more than his customary fee. Commonwealth v. Shelley, 374 Mass. 466, 469-470 (1978). Nonetheless, in the context of the prosecutor's entire argument and the trial judge's instructions, including his instruction that closing argument was not evidence, we are confident that the jury took "the criticized argument with a 'grain of salt.' " Commonwealth v. Benson, 419 Mass. 114, 120 (1994), quoting from Commonwealth v. Wallace, 417 Mass. 126, 134 (1994). The remark, while improper, did not create a substantial risk of a miscarriage of justice.

Second, the prosecutor vouched for the accuracy and reliability of the breathalyzer machine by reference to the use of the same apparatus by "every single law enforcement department in the Commonwealth of Massachusetts and the State Police." This was improper. See Commonwealth v. Grandison, 433 Mass. 135, 141-142 (2001). However, the jury plainly were not swayed by the prosecutor's improper statement as evidenced by the fact that the defendant was acquitted of the breathalyzer counts. See Commonwealth v. McCravy, 430 Mass. 758, 765-766 (2000). Furthermore, the trial judge properly instructed the jury that closing arguments are not evidence. Commonwealth v. Watkins, 425 Mass. 830, 840 (1997). Moreover, "[t]he absence of objection by defense counsel during or after argument may provide some guidance as to whether a particular argument was prejudicial in the circumstances." Grandison, supra at 142, quoting from Commonwealth v. Kozec, 399 Mass. 514, 518 n.8 (1987). In the circumstances, this error did not give rise to a substantial risk of a miscarriage of justice.

2. Jury instructions. The defendant next contends that the trial judge erred in certain of his jury instructions. Because trial counsel did not object to the alleged errors, "our review ... is limited to whether the instruction was erroneous and, if so, whether it created a substantial risk of a miscarriage of justice." Commonwealth v. Stewart-Johnson, 78 Mass. App. Ct. 592, 598 (2011).

a. Accident defense. The defendant maintains that the trial judge erred by not giving an accident defense instruction. Commonwealth v. Figueroa, 56 Mass. App. Ct. 641, 650 (2002) ("pure" accident refers to "an unintentional event occurring through inadvertence, mistake, or negligence"). To begin, the defendant acknowledges that accident is not a defense to motor vehicle homicide. See Commonwealth v. Doyle, 73 Mass. App. Ct. 304, 309 (2008).

Pure accident, however, can be a defense to involuntary manslaughter, which requires proof of "wanton and reckless" conduct. Figueroa, supra. Where the defendant's conduct is "inadverten[t], mistake[n], or negligen[t]," a pure accident defense may be proper. Ibid. In assessing whether a pure accident instruction is warranted, we view the evidence in the light most favorable to the defendant. Id. at 651.

Here, the instruction was not warranted. Trial counsel did not seek an accident instruction. Such an instruction would have been at odds with the trial strategy that the defendant was not negligent-the defense was that the defendant was not impaired, O'Hanley was impaired, and the incident was caused by his failure to signal a lane change. See Commonwealth v. Arias, 84 Mass. App. Ct. 454, 468 (2013). The evidence was that the defendant drove, after having at least two beers, in such a manner (including driving with excessive speed and weaving in and out of lanes) that it caused alarm to numerous drivers that morning. See, e.g., Commonwealth v. Filoma, 79 Mass. App. Ct. 16, 24 (2011) (no accident instruction warranted where defendant accelerated backward and forward at night on narrow street); Commonwealth v. Moore, 92 Mass. App. Ct. 40, 42 (2017) (accident instruction not warranted where defendant traveled at "high rate of speed going in and out of traffic"). In the circumstances, the trial judge did not err in declining to instruct the jury sua sponte on pure accident.

b. Exceeding speed limit alone and alcohol consumption alone instructions. The defendant also faults the trial judge for not instructing the jury that neither exceeding the speed limit alone nor driving while under the influence alone is not conclusive evidence of negligence or recklessness. The trial judge properly instructed the jury to consider not only the defendant's speed, but also the manner in which she operated her vehicle, her physical condition, her control of her vehicle, the road conditions, the time of day, weather conditions, and "any other factor[s] that you think are relevant." Commonwealth v. Campbell, 394 Mass. 77, 83 n.5 (1985). He further instructed the jury to consider not only whether the defendant had consumed alcohol, but whether her ability to drive safely was diminished by alcohol. See Commonwealth v. Luiz, 28 Mass. App. Ct. 973, 973-974 (1990). There was no error in the instructions.

3. Motion for a new trial. The defendant argues that the motion judge (who was not the trial judge) erred in denying her motion for a new trial. We review the order denying a motion for a new trial to determine whether there has been an abuse of discretion or other error of law. Commonwealth v. DeJesus, 468 Mass. 174, 178 (2014).

a. Ineffective assistance. The defendant maintains that a new trial was required because trial counsel provided constitutionally ineffective assistance. We review a claim of ineffective assistance under the familiar two-prong test: (1) "whether there has been serious incompetency, inefficiency, or inattention of counsel-behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer" and (2) if so, "whether it has likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

The defendant contends that trial counsel was ineffective for failing to introduce expert testimony on human factors. In support of her motion, the defendant submitted the affidavit of a human factors expert. Much of the information in the expert's affidavit was duplicative of the testimony of the defendant's accident reconstruction expert, and other information was within the ordinary ken of the average juror. Failure to consult with such an expert was not conduct below that of the ordinary fallible lawyer and did not deprive the defendant of a substantial ground of defense. See Commonwealth v. Aspen, 85 Mass. App. Ct. 278, 280-281 (2014).

The defendant also maintains that trial counsel was ineffective for failing to request a lesser included offense instruction. As the defendant acknowledges, the trial judge specifically asked trial counsel whether a lesser included offense instruction was desired. Trial counsel made a strategic decision not to seek such an instruction. The trial judge then engaged in a colloquy with the defendant who confirmed, after a break to consult with her family, that she did not want the instruction. Given this deliberate tactical decision, "the defendant must demonstrate that ... counsel's tactical judgment was manifestly unreasonable." Commonwealth v. Finstein, 426 Mass. 200, 203 (1997). We agree with the motion judge that the defendant failed to make the requisite showing; in the circumstances, we cannot say that it was manifestly unreasonable to pursue an "all-or-nothing" defense. Commonwealth v. Glover, 459 Mass. 836, 844 (2011) (citation omitted).

b. New evidence. The defendant argues that a new trial was warranted based on newly discovered information regarding a lack of written policies and procedures concerning the annual certification of the new model breathalyzer machine. Again, we agree with the motion judge's well-reasoned decision that the defendant has not shown "a substantial risk that the jury would have reached a different conclusion had the evidence been admitted at trial." Commonwealth v. Moore, 408 Mass. 117, 126 (1990) (citation omitted). The jury acquitted the defendant of the breathalyzer counts, plainly agreeing with the defendant's theory that the breathalyzer was not reliable. The trial judge instructed that the jury were to disregard the breathalyzer information if they found the breathalyzer to be unreliable. We assume the jury followed the trial judge's instruction. Commonwealth v. Durand, 475 Mass. 657, 668-669 (2016). The defendant's speculation that the jury nonetheless relied on the breathalyzer readings in connection with the motor vehicle homicide counts does not meet the burden to show a substantial risk that the jury would have reached a different conclusion. Here, the evidence (even excluding the breathalyzer readings) was substantial that the defendant had been drinking, driving erratically and dangerously, smelled of alcohol, had glassy, red, bloodshot eyes, and slurred her speech.

Judgments affirmed.

Order denying motion for new trial affirmed.

      The Commonwealth's accident reconstruction expert opined that the defendant's blue vehicle was traveling so fast that, despite losing speed when it swerved into the grassy median, it was able to catch the Blazer and strike it again.

      Other witnesses testified that the defendant also stated: "Jesus, please don't let these people die" and "I'm so sorry. I [am] so sorry. I cannot live with myself."

      Commonwealth v. Watkins, 425 Mass. 830, 840 (1997) (jury presumed to follow instructions).

      The defendant also argues that the prosecutor's reference to the amount of THC in O'Hanley's body-twenty-seven nanograms per milliliter-as a "trace amount" was error because there was expert testimony that the THC may have impaired O'Hanley. We disagree. The prosecutor's statement is "little more than enthusiastic rhetoric, strong advocacy, and excusable hyperbole." Commonwealth v. Costa, 414 Mass. 618, 629 (1993). The same is true of the prosecutor's statements about the defendant's accountability. See Commonwealth v. Barbosa, 477 Mass. 658, 670-671 (2017).

      The Commonwealth filed a motion in limine to preclude a defense of accident. Trial counsel and the trial judge had the following exchange:
      Trial Counsel : "May I suggest that we just wait on this and see how the facts come out?"
      Judge : "Sure. And propose some instruction because the defense of accident seems inapplicable in this situation. You're not asking for an instruction on the defense of accident. You're asking for an explanation of the colloquial concept of an accident separate and distinct from negligent conduct."
      Trial Counsel : "Exactly."
      At the charge conference, trial counsel did not ask for an accident instruction and did not object to the instructions after they were provided to the jury.

      The defendant also claims that the evidence was insufficient for the jury to conclude that the defendant caused the accident. Viewing the evidence in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), the evidence showed the defendant was intoxicated, driving at a speed of about 100 miles per hour and dangerously switching lanes. As she swiftly bore down on the Blazer, she tried to switch lanes and rear-ended the trailer, lost control of her vehicle, swerved back and again hit the Blazer, which flipped over. The evidence of causation was more than sufficient.

      For example, the expert's affidavit explains that a driver can use a side mirror to assess whether a lane change can be made safely and to gather information on how fast a vehicle is approaching. Compare Commonwealth v. Giontzis, 47 Mass. App. Ct. 450, 461 (1999) (lay opinions as to speed are competent and admissible).

      The defendant also faults trial counsel for failing to seek an instruction on both (i) exceeding the speed limit alone and (ii) drinking alcohol alone. However, as discussed, the instruction that was given was proper.

      The defendant cites Commonwealth vs. Ananias, Dist. Ct. of Mass., No. 1248-CR-1075 (Feb. 16, 2017). The breathalyzer machine used in the present case is the predecessor to the model discussed in Ananias.

      We have considered the defendant's other arguments and find them to have no merit. See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954) ("Other points, relied on by the defendants but not discussed in this opinion, have not been overlooked. We find nothing in them that requires discussion").


text:
    Efrain MATIAS v. Vincent F. RICCIARDI.
    17-P-39
    Appeals Court of Massachusetts.
    Entered: February 27, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The plaintiff Matias appeals from a summary judgment dismissing his complaint. "Summary judgment is appropriate where there is no genuine issue of material fact, and when, viewing the evidence in the light most favorable to the nonmoving party, the moving party is entitled to judgment as a matter of law." Gray v. Giroux, 49 Mass. App. Ct. 436, 438 (2000). See Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002). "We review the judge's order granting summary judgment under the familiar standard: We view the evidence in the summary judgment record in the light most favorable to the nonmoving party, in this case the plaintiffs, and we review de novo the judge's conclusion that summary judgment was appropriate." Cosgrove v. Hughes, 78 Mass. App. Ct. 739, 743 (2011).

It is undisputed that Matias was arrested on drug-related charges in October, 2000. In connection with that arrest the police seized from Matias $395,744. Shortly thereafter Matias, while driving, was arrested after he failed to stop for a police officer; the police found in Matias's car and seized an additional $60,500, bringing the total seized from Matias to $456,244. Matias retained Ricciardi, an attorney, to represent him in the ensuing criminal and civil forfeiture proceedings. Ricciardi, on Matias's behalf, filed motions to suppress certain evidence in the criminal matter. The matter was heavily litigated. The trial judge ordered the evidence suppressed, and the case ultimately ended up before the Supreme Judicial Court, which concluded that the trial judge's suppression order was unwarranted. Commonwealth v. Matias, 440 Mass. 787, 795 (2004).

In 2004, after the Supreme Judicial Court's decision entered, Matias pleaded guilty to possession of marijuana with intent to distribute; Matias was sentenced to two years supervised probation. Matias also resolved the civil forfeiture matters by executing two written agreements for judgment. Relevant here, these agreements, considered together, specify that the Commonwealth would return to Matias a total of $106,946 of the $456,244 seized, with the balance to be retained by various law enforcement entities. After Matias executed the agreements the Commonwealth turned $106,946 over to Ricciardi. Ricciardi, in turn, distributed $60,500 to Matias and kept for himself $46,446.

Matias now asserts, in essence, he was unaware that Ricciardi had kept for himself $46,446 or that the Commonwealth returned a total of $106,946 to him. Matias goes on to assert that he could not have known the true state of affairs in 2004 because Ricciardi never showed Matias the relevant agreement for judgment-instead putting before Matias only that agreement's signature page, which contains no terms or conditions-and because Ricciardi misrepresented to Matias that the Commonwealth was returning to him only $60,500. As the motion judge explained,

"Plaintiff has stated under oath that he never saw anything other than the signature pages of the Agreements for Judgment, which signature pages, he claims, Attorney Ricciardi had him sign, along with a written of waiver of rights, at his plea hearing. He claims that the Defendant falsely led him to believe that the total amount to be returned to the Plaintiff was only $60,500.00."

Finally, Matias claims he only learned of Ricciardi's fraud and concealment in 2012 when, in the course of an attempt to have his 2004 guilty plea set aside, a different attorney representing Matias discovered the 2004 agreements.

By contrast, Ricciardi maintains that he and Matias explicitly discussed and agreed that Ricciardi would keep $46,446 of the returned cash as his fee for representing Matias in the criminal and civil forfeiture proceedings, pointing out that Matias admittedly signed both agreements for judgment. Matias disputes this. We do not see any written documentation in the record before us, such as a retainer or fee agreement or even a contemporaneous confirmation letter, supporting Ricciardi's position. Neither do Matias's initials or signature appear on the relevant page of the relevant agreement, which conceivably could have served as conclusive proof that Matias in fact had the full agreement before him and had at least an opportunity to read it. Neither do we see any indication in the plea colloquy or otherwise that either the amounts to be returned to Matias or the purported oral fee agreement was ever memorialized in any way.

Accordingly, while we express no opinion on the facts asserted by the parties, we concur with the motion judge that whether Ricciardi and Matias agreed that Ricciardi could retain the $46,446, or even whether Matias in fact was aware in 2004 that the Commonwealth returned a total of $106,946 to him, constitute genuinely disputed issues of fact that may not be resolved on summary judgment. Compare Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 522 (1997) (although investors signed documents, those documents did not demonstrate that investors knew documents' contents where investors testified they had not read them "because of the express trust they placed in" attorneys).

Although this was the motion judge's conclusion, the judge nonetheless dismissed Matias's complaint on Ricciardi's summary judgment motion, generally reasoning that because the 2004 agreements for judgment were public records Matias's alleged injury was not "inherently unknowable" and the so-called discovery rule did not toll the applicable limitations period. Accordingly, the judge ruled, the three-year tort statute of limitations provided by G. L. c. 260, § 2A, ran long before Matias filed this action in 2014.

In the usual case, a claim accrues, and the statute of limitations will begin to run, when the injured party reasonably could have known of her injury. Bowen v. Eli Lilly & Co., 408 Mass. 204, 206 (1990). Koe v. Mercer, 450 Mass. 97, 101 (2007). But "[w]here a fiduciary relationship exists, the failure adequately to disclose the facts that would give rise to knowledge of a cause of action constitutes fraudulent conduct and is equivalent to fraudulent concealment" within the meaning of G. L. c. 260, § 12. Hays v. Ellrich, 471 Mass. 592, 602 (2015), quoting from Demoulas, 424 Mass. at 519. "In these cases, the statute of limitations clock begins to run only when the plaintiff has 'actual knowledge ... of the facts giving rise to his cause of action,' i.e., the facts which the fiduciary had failed to disclose." Ibid., quoting from Patsos v. First Albany Corp., 433 Mass. 323, 329 n.11 (2001). "[T]he actual knowledge standard recognizes the dependent status of the beneficiary vis-a-vis the fiduciary, and protects the beneficiary's legitimate expectation that the fiduciary will act with the utmost probity in all matters concerning the relationship.... Actual knowledge of injury suffered at a fiduciary's hands ... sets the ... statute of limitations in play." Doe v. Harbor Schs., Inc., 446 Mass. 245, 255-257 (2006).

Without belaboring the point, Ricciardi, an attorney retained by Matias to represent Matias in both criminal and civil forfeiture proceedings, was Matias's fiduciary, Dunne v. Cunningham, 234 Mass. 332, 335 (1920), who owed Matias "[u]nflinching fidelity." Pollock v. Marshall, 391 Mass. 543, 555 (1984), quoting from Berman v. Coakley, 243 Mass. 348, 354 (1923). At least according to Matias, Ricciardi nonetheless (i) misrepresented to Matias that Matias was to receive from the Commonwealth only $60,500 when in fact it was $106,946; (ii) failed to disclose to Matias material facts, namely, that Matias was to receive a total of $106,946; and (iii) retained for himself without notice or consent $46,446 rightfully due Matias. In such circumstances, we ask not when Matias, in the exercise of reasonable diligence, could have discovered his injury but rather when Matias, in fact, discovered his claimed injury.

As discussed above, and as the motion judge specifically found, the question of when, in fact, Matias knew of his alleged injury is genuinely disputed, and not subject to resolution on summary judgment. As such, and solely for the purpose of considering Ricciardi's summary judgment motion, Matias's claim that he first discovered his alleged injury in 2012, a date within the applicable limitations period, must be accepted. The judgment therefore is reversed, and the case is remanded for further proceedings consistent with this memorandum and order.

So ordered.

Reversed and remanded.


text:
    COMMONWEALTH v. Eric W. CATERINO.
    17-P-486
    Appeals Court of Massachusetts.
    Entered: February 27, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   In 2016, a District Court jury convicted the defendant of indecent assault and battery on a person age fourteen or older. The defendant filed a timely notice of appeal. The appeal was stayed by this court, and the defendant was given leave to file a motion for a new trial. In the motion for new trial, the defendant argued that his trial counsel was constitutionally ineffective for failing to pursue defenses based on potential side effects of certain medications that he had been prescribed. The trial judge denied that motion. The defendant's appeal from that denial and his direct appeal were consolidated in this court. The defendant's arguments on appeal relate solely to the denial of the motion for new trial. We affirm.

Background. The trial evidence. On April 19, 2014, the victim-who was approximately thirty-five years old-arrived to clean the home of the defendant's stepmother. According to the victim's testimony, she was greeted there by the defendant, who made lewd and sexually aggressive comments toward her, such as "[c]ome on, we could go downstairs and fuck real quick, nobody would know." The defendant then cornered her, grabbed her, and pulled her against his pelvic area. As the defendant did this, he said, "What would you do if I bent you over and fucked you right now?" The defendant was wearing thin pants, and the victim testified that she could feel the defendant's erect penis pressed against her. She eventually was able to escape.

Through cross-examination and testimony from the defendant's stepmother, defense counsel highlighted alleged inconsistencies in the victim's version of events. He also suggested that the object that the victim believed was the defendant's erect penis was actually a gun that the defendant had placed in his pocket. Apparently crediting the victim's testimony, the jury convicted the defendant.

The new trial motion. As the defendant documented through medical records submitted with his motion for new trial, he had been prescribed three medications prior to the incident: Zoloft (an antidepressant), Klonopin (a sedative and antianxiety drug), and Seroquel (an antipsychotic that is also used as sleep medication). In addition, the defendant's trial counsel averred that the defendant was a long-term user of Suboxone, an opioid, and there was evidence in a pretrial proceeding that he may have abused both alcohol and marijuana. In his new trial motion, the defendant argued that his having been prescribed the various medications could have helped his defense in two different ways. First, citing to various studies and Food and Drug Administration warnings, the defendant argued that decreased libido and erectile dysfunction are common potential side effects of such medications. Had this been put before the jury, the defendant argued, it would have undermined the victim's testimony that he was sexually aggressive toward her and had assaulted her with his erect penis. Second, he argued that his use of these drugs, together with his regular smoking of marijuana, could have supported a defense of involuntary intoxication. The defendant claimed that by not raising such defenses at trial, his counsel was constitutionally ineffective.

The trial judge denied the motion for new trial without a hearing, ruling that "[t]he idea that certain medications may have reduced [the defendant's] libido and therefore should have been presented is purely speculative." After the defendant pressed for a fuller explanation, the judge added the following:

"This [c]ourt is somewhat hard pressed to come up with additional findings other than to state that this [c]ourt does not find 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 performance likely deprived the defendant of an otherwise available, substantial ground of defense. Indeed trial counsel was an experienced lawyer who aggressively cross-examined the victim in this case.
"The defendant inappropriately touched the cleaning lady when she showed up to clean the house. The defendant touched his erect[ ] penis to her behind. The victim was cross-examined on her credibility. A substantial issue is not raised by the motion or affidavit.
"The [c]ourt again concludes that the notion that certain medications the defendant may have taken may have decreased his libido and should have been presented is purely speculative."

Discussion. As the judge correctly recognized, to make out a claim of ineffective assistance, a defendant must demonstrate (1) that his counsel's conduct fell "measurably below that which might be expected from an ordinary fallible lawyer," and (2) that it "likely deprived [him] of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). We review the denial of a motion for new trial for an abuse of discretion or other error of law. Commonwealth v. Murphy, 442 Mass. 485, 499 (2004). Where, as here, the judge hearing the motion for new trial also presided at the trial, his ruling is entitled to "special deference." Commonwealth v. Figueroa, 422 Mass. 72, 77 (1996).

We discern no abuse of discretion here. As the Commonwealth accurately highlights, the defendant did not supply his own affidavit or other proof that he actually took the medications, only that he was prescribed them. Moreover, there was no showing that the defendant actually suffered from a decreased libido or erectile dysfunction, only that these were potential side effects of the prescribed medications. Especially where the jury credited the victim's testimony regarding the defendant's conduct despite defense counsel's aggressive cross-examination, the defendant is hard pressed to show any reasonable likelihood of how testimony about the potential side effects of the medications would have made a difference in the jury's verdict. Therefore, even if we assumed arguendo that the defendant could demonstrate that his counsel's failure to investigate the decreased libido/erectile dysfunction issue met the first prong of the Saferian test, he would still be unable to show that this deprived him of "an otherwise available, substantial ground of defence." Saferian, supra. The defendant's claim that his counsel was ineffective for failing to press an involuntary intoxication defense fails for similar reasons.

Finally, we discern no abuse of discretion in the judge's denying the motion without affording the defendant an evidentiary hearing. The defendant has not demonstrated a "substantial issue" in factual dispute that would have warranted the holding of such a hearing. See Commonwealth v. Alemonte, 84 Mass. App. Ct. 735, 738 (2014), and cases cited.

Judgment affirmed.

Order denying motion for new trial affirmed.

      Based on the defendant's possession of the gun, he was charged with assault and battery by means of a dangerous weapon. The Commonwealth dismissed that charge prior to trial.

      At a pretrial competency hearing, a forensic psychologist testified that he did not "see any sign of substantial mental illness" in the defendant, but that his substance abuse issues might affect his ability to participate in his defense. The motion judge, who eventually presided at trial, did not find the defendant incompetent to stand trial, but he allowed a continuance so that the defendant could go through detoxification and treatment. Included in the witness's testimony was that the defendant self-reported that he was an alcoholic, and that he regularly used marijuana.