text:
    Ryan TILDEN v. Donald COLE.
    17-P-200
    Appeals Court of Massachusetts.
    Entered: January 22, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The plaintiff, Ryan Tilden, seeks to hold the defendant, Donald Cole, personally liable for repayment of a loan that she made to Preston Ventures, Inc., and/or Preston Ventures, LLC (collectively, Preston Ventures). After a bench trial, a Superior Court judge entered judgment for the defendant. The plaintiff appeals. We affirm.

Background. We set forth the basic material facts, drawing extensively from the trial judge's thoughtful and thorough findings of fact, rulings of law, and decision. Alexander Cole is the son of the defendant. , In 2008, Alexander purported to operate Preston Ventures, an equity investment business. The defendant and his wife loaned Alexander $200,000 to help him start the company. The defendant also allowed Alexander to use his name on the company website as chairman of an advisory board, and the defendant informally gave Alexander business advice.

In February, 2010, the plaintiff entered into a dating relationship with Alexander. The plaintiff socialized with Alexander and the defendant and was present when Alexander and the defendant discussed business. The plaintiff believed that Alexander relied on the defendant for business advice.

In April and May, 2010, the plaintiff loaned Preston Ventures a total of $25,000 to allow Alexander to travel to India for business and she joined him on that trip. Alexander told the plaintiff that the loan would be repaid with interest.

In August, 2010, the plaintiff ended her relationship with Alexander. Also that month, she spoke with the defendant for the first time about the loan that she had made to Preston Ventures and sought his assistance in seeking repayment.

The plaintiff and Alexander resumed their relationship in November, 2010. In May, 2011, Alexander formed Preston Wealth Management, LLC (Preston Wealth), and told the plaintiff that the assets of Preston Ventures were being transferred to Preston Wealth. An "LLC Membership Purchase Agreement" showed that the plaintiff had a .50 percent ownership interest and the defendant had a 1.250 percent interest in the company. An "LLC Interest Purchase Agreement" also showed that the defendant purchased a 1.250 percent ownership interest for one dollar.

The Preston Wealth Web site listed the defendant as a member of its advisory board and displayed a company electronic mail (e-mail) address for him. The only evidence that the defendant used the e-mail address was an e-mail sent to him. The defendant also paid Alexander's expenses in 2011, including a licensing fee, storage fees, and living expenses.

The plaintiff again ended her relationship with Alexander in the fall of 2011. She brought this suit in December, 2011.

In September, 2012, Alexander was missing from the company. Preston Wealth executives and employees who were trying to reach Alexander communicated with the defendant in an effort to reach Alexander. In October, 2012, the defendant sent a letter addressed to Alexander as chief executive officer resigning from the advisory board and asking to be removed from the Web site.

Standard of review. On appeal, we grant deference to the trial judge's findings of fact unless clearly erroneous. The judge's rulings of law are reviewed de novo and the ultimate decision to deny equitable relief is reviewed for abuse of discretion. See Cavadi v. DeYeso, 458 Mass. 615, 624 (2011).

Discussion. 1. Piercing the corporate veil. The plaintiff seeks to pierce the corporate veil and hold the defendant liable for the debt of Preston Ventures on a theory that Preston Ventures was a "sham" corporation controlled by Alexander and the defendant. "The corporate veil may be pierced where the corporate principal exercises (1) some form of pervasive control over the activities of the corporation, and (2) there is some fraudulent or injurious consequence as a result." Kraft Power Corp. v. Merrill, 464 Mass. 145, 152 (2013) (quotation omitted). Twelve factors are considered to determine if this standard was met.

As the trial judge explained in a well-reasoned decision, although the companies were "shams used by Alexander Cole" and Alexander's "alter ego," the plaintiff did not satisfy her burden to demonstrate that the defendant pervasively controlled the companies or that they were his alter ego.

As an initial matter, the plaintiff challenges the trial judge's finding that the defendant did not intend to and did not obtain an ownership interest in Preston Ventures or Preston Wealth. The plaintiff identifies no evidence that the defendant had an ownership interest in Preston Ventures. As for Preston Wealth, the trial judge also noted in her findings that there is an LLC membership purchase agreement for the company stating that the defendant had a 1.25 percent interest. The defendant concedes that he was an owner of 1.25 percent of Preston Wealth. Nevertheless, any ownership interest held by the defendant alone does not demonstrate pervasive control of the activities of either company. The defendant was a member of the advisory board of each company, but there was little evidence as to the role of the boards or the defendant's role on them, other than testimony that the defendant gave advice to Alexander. Additionally, the plaintiff does not dispute that the defendant received no profits from the companies. Furthermore, there was no evidence that the defendant was aware of the plaintiff's loan to Preston Ventures before she approached the defendant and no indication that he was involved in soliciting that loan from her. Considering the totality of the evidence here, we discern no error in the conclusion that piercing the corporate veil to reach the defendant was not justified where the defendant lacked pervasive control and was not an alter ego of the companies. See My Bread Baking Co. v. Cumberland Farms, Inc., 353 Mass. 614, 620 (1968) (piercing the corporate veil only "in rare particular situations"); Evans v. Multicon Constr. Corp., 30 Mass. App. Ct. 728, 736 (1991) ("[T]he exercise is, of course, not one in counting. One examines the twelve factors to form an opinion whether the over-all structure and operation misleads").

2. Joint venture. The plaintiff also argues that the trial judge erred in concluding that the defendant and Alexander were not acting in a joint venture.

A joint venture is "ordinarily, although not necessarily, limited to a single enterprise," and "the relationship of joint adventurers is a matter of intent and arises only when they intend to associate themselves as such." Cardullo v. Landau, 329 Mass. 5, 8 (1952). "[F]actors indicating such an intent include an agreement among the participants for joint profits and a sharing of losses; a contribution of money, assets, talents, etc., to a common undertaking; a joint property interest in the subject matter of the venture; and a right to participate in the control of the venture." Gurry v. Cumberland Farms, Inc., 406 Mass. 615, 623-624 (1990). While the defendant loaned Alexander money and spoke with him about the business, we conclude, largely for the reasons stated above, that the plaintiff failed to carry her burden to show that this amounted to a joint venture and meaningful participation in the business. ,

Judgment affirmed.

      This is the second appeal before this court regarding this case. See Tilden v. Cole, 87 Mass. App. Ct. 1134 (2015).

      We hereinafter refer to Alexander Cole by his first name to avoid confusion with Donald Cole.

      The plaintiff also named Alexander as a defendant in the lawsuit. A default judgment has entered against him. The issues on appeal involve only Donald Cole.

      An LLC membership purchase agreement given to another investor did not list an ownership interest for the plaintiff.

      Those factors are: "(1) common ownership; (2) pervasive control [over the entity]; (3) confused intermingling of business activity assets, or management; (4) thin capitalization; (5) nonobservance of corporate formalities; (6) absence of corporate records; (7) no payment of dividends; (8) insolvency at the time of the litigated transaction; (9) siphoning away of corporate assets by the dominant shareholders; (10) nonfunctioning of officers and directors; (11) use of the corporation for transactions of the dominant shareholders; [and] (12) use of the corporation in promoting fraud." Evans v. Multicon Constr. Corp., 30 Mass. App. Ct. 728, 733 (1991). See My Bread Baking Co. v. Cumberland Farms, Inc., 353 Mass. 614, 618-619 (1968).

      The trial judge considered the defendant to be a victim of Alexander's conduct, although she also found that the defendant did not testify truthfully about several matters.

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

      In the exercise of our discretion, we decline to award the defendant the requested attorney's fees and double costs.


source: Caselaw Access Project

license: Public Domain

text:
    Robert CREMONE v. David LIBASSI.
    17-P-720
    Appeals Court of Massachusetts.
    Entered: January 22, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The plaintiff, Robert Cremone, appeals from the dismissal of his complaint against the defendant, David Libassi, alleging, inter alia, legal malpractice. We affirm.

Background. Libassi represented Cremone in three actions: a 2008 lawsuit arising from his rental of a boat slip at a marina (marina action), a 2008 lawsuit arising from a dispute over a family trust (trust action), and a 2011 lawsuit stemming from his alleged failure to pay child support (divorce action). On April 25, 2016, Cremone filed a pro se complaint against Libassi. In response, Libassi filed a motion to dismiss pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), alleging that all three counts of the complaint were barred by the statute of limitations. A judge of the Superior Court allowed the motion and a final judgment entered on November 15, 2017. This appeal followed.

Discussion. "We review the allowance of a motion to dismiss de novo," Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011), accepting as true "the factual allegations in the plaintiffs' complaint, as well as any favorable inferences reasonably drawn from them." Ginther v. Commissioner of Ins., 427 Mass. 319, 322 (1998).

1. The marina action. A judge of the Superior Court dismissed the marina action for failure to arbitrate. Libassi appealed this decision, and we affirmed the dismissal in an unpublished decision. See Cremone v. Development & Mtg. Group Chelsea II, LLC, 82 Mass. App. Ct. 1124 (2012). "Actions of contract or tort for malpractice, error or mistake against attorneys, ... shall be commenced only within three years next after the cause of action accrues." G. L. c. 260, § 4, as amended through St. 1981, c. 765. A cause of action for attorney malpractice begins to accrue no later than when the client "knows or reasonably should know that he ... sustained appreciable harm as a result of the lawyer's conduct." Lyons v. Nutt, 436 Mass. 244, 247 (2002), quoting from Williams v. Ely, 423 Mass. 467, 473 (1996). Any claim against Libassi arising out of this litigation would have accrued no later than December 3, 2012. Whether or not the plaintiff could still have arbitrated the dispute at that point is beside the point. By that time, the plaintiff was aware of appreciable harm, and "it is not necessary that the plaintiff client know the full extent of harm or loss or know precisely in what manner and what harmful after-effects flow from the alleged malpractice." Franskton v. Denniston, 74 Mass. App. Ct. 366, 374 (2009). Accordingly, this count is time-barred and was properly dismissed.

2. The divorce action. On July 18, 2011, Cremone signed a stipulation that became a judgment of the Probate and Family Court regarding child support arrears. He alleges that Libassi knew or should have known that he did not owe any child support. Even if true, this cause of action accrued when Cremone signed the stipulation, nearly five years before he filed this complaint. Moreover, Cremone acknowledged that this count was "beyond the statute of limitations" in his response to Libassi's motion to dismiss. This count was properly dismissed.

3. The trust action. On April 2, 2013, Libassi filed a motion to withdraw from representing the plaintiff in a trust action and a notice of attorney's lien. Cremone filed a response objecting to the lien on April 16, 2013. Libassi claims that as a result, this cause of action accrued on April 2, 2013. We disagree. No action was taken on the motion until February 28, 2014, when a judge of the Superior Court allowed the motion with Cremone's "assent and decision to proceed pro se." Accordingly, this action is not time-barred; however, that does not end the analysis. To establish a prima facie case for legal malpractice, the plaintiff must establish that there was an attorney-client relationship, that the attorney breached the standard of legal care owed to the plaintiff, that the plaintiff suffered a loss as a result, and that the breach of the standard of care was the proximate cause of the plaintiff's loss. See Colucci v. Rosen, Goldberg, Slavet, Levenson & Wekstein, P.C., 25 Mass. App. Ct. 107, 111 (1987). There is no question that there was an attorney-client relationship between Cremone and Libassi. Passing over the question whether Libassi breached the standard of legal care, Cremone's complaint fails to set forth the requisite loss. Indeed, his complaint simply alleges that he was harmed because he had to represent himself and argue against three experienced attorneys. Notably, the docket reflects that Cremone assented to Libassi's motion to withdraw and agreed to represent himself. In addition, eleven months passed between the allowance of Libassi's motion and the start of the trial, more than sufficient time for Cremone to retain successor counsel. "While a complaint attacked by a ... motion to dismiss does not need detailed factual allegations ... a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than ... enough to raise a right to relief above the speculative level ... [based] on the assumption that all the allegations in the complaint are true." Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), quoting from Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1964-1965 (2007). As Cremone failed to allege actual harm, this claim was properly dismissed.

Judgment affirmed.

      An appellate court may affirm the judgment on grounds different from those advanced by the trial judge. See Hawthorne's, Inc. v. Warrenton Realty, Inc., 414 Mass. 200, 210 n.6 (1993).

      Cremone's claim is not saved from dismissal by the averment in his complaint that "had Attorney LiBassi advanced his case properly, the [p]laintiff would have achieved a better outcome." Iannacchino, supra (conclusory and speculative allegations insufficient to state a viable claim for relief).


text:
    COMMONWEALTH v. Peter DEGENNARO.
    16-P-1753
    Appeals Court of Massachusetts.
    Entered: January 19, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Peter DeGennaro, appeals from an order denying his motion for new trial. The defendant argues that he received ineffective assistance of counsel from his appellate attorney in his direct appeal, Commonwealth v. DeGennaro, 84 Mass. App. Ct. 420 (2013) (DeGennaro I ). The defendant specifically contends that his attorney failed to argue that applying a "novel construction" of the fiduciary embezzlement statute, G. L. c. 266, § 57, to the defendant would be an ex post facto application of the criminal statute, thereby violating the defendant's due process rights. We affirm.

The defendant was convicted of violating G. L. c. 266, § 57, the fiduciary embezzlement statute. This court affirmed the defendant's convictions in DeGennaro I. The Supreme Judicial Court denied the defendant's application for further appellate review. Commonwealth v. DeGennaro, 466 Mass. 1111 (2013).

A judge may grant a new trial "at any time if it appears that justice may not have been done." Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). We review a judge's ruling on a motion for new trial "only to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Acevedo, 446 Mass. 435, 441 (2006), quoting from Commonwealth v. Grace, 397 Mass. 303, 307 (1986). In order to establish a claim for ineffective assistance of counsel, the defendant must show that counsel's conduct fell "below that which might be expected from an ordinary fallible lawyer" and prejudiced the defendant by "depriving him 'of an otherwise available, substantial ground of defence.' " Commonwealth v. Lavoie, 464 Mass. 83, 89 (2013), quoting from Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

The defendant argues that his attorney was ineffective because she failed to assert the argument articulated in Bouie v. Columbia, 378 U.S. 347 (1964), that is, retroactive application of a court's "novel construction" of a criminal statute to a defendant is a violation of due process. We agree with the motion judge that the defendant's Bouie argument "would not have altered the outcome."

While our interpretation of the fiduciary embezzlement statute in DeGennaro I was the first time that this court applied the statute to a contractual escrow agent, such an application was not "unexpected and indefensible." Id. at 354 (quotations omitted). As discussed in DeGennaro I, the fiduciary embezzlement statute was interpreted based on the "plain and ordinary meaning of its words." DeGennaro I, 84 Mass. App. Ct. at 428, quoting from Commonwealth v. Truong, 78 Mass. App. Ct. 28, 31 (2010). This court stated that the

"[o]rdinary, reasonable usage of the concept and term of an escrow agent in a contract refers to a trusted stakeholder of money, property, or other elements of value for the later benefit of interested parties. Decisional law, legal dictionaries, and general dictionaries describe the trusted character of the escrow officer. [Footnotes omitted.] One of the layperson's most common contacts with, and understanding of, the escrow function develops, as here, in the agreement for the purchase of a home. In short, [the defendant] occupied a position of trust created by a written instrument well within the meaning of the fiduciary embezzlement statute."

DeGennaro I, supra at 428-429 (emphasis supplied).

The defendant fails to provide us with any persuasive argument that the fiduciary embezzlement statute did not provide him with "fair warning of the conduct that [the statute] makes a crime." Bouie, supra at 350. Our interpretation in DeGennaro I was merely "an 'evolutionary restatement' of the rule rather than a substantively new rule." Commonwealth v. Golston, 373 Mass. 249, 254 (1977), cert. denied, 434 U.S. 1039 (1978). Such interpretation was based on the plain language of the statute, the "[o]rdinary, reasonable usage of the concept and term of an escrow agent," and a "layperson's most common ... understanding of[ ] the escrow function." DeGennaro I, 84 Mass. App. Ct. at 428-429. We would be hard pressed to find that such an analysis was "unexpected and indefensible." Bouie, 378 U.S. at 354. Thus, asserting a Bouie argument would not have afforded the defendant with "an otherwise available, substantial ground of defence." Saferian, 366 Mass. at 96.

We therefore conclude that the motion judge did not abuse his discretion in denying the defendant's motion for a new trial.

Order denying motion for new trial affirmed.


text:
    Simcha WELLER v. Cheri-Anne MALO.
    17-P-360
    Appeals Court of Massachusetts.
    Entered: January 26, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The father appeals from a judgment ordering child support in the amount of $2,320 per week. The judgment was entered after a trial by representation in which the parties submitted written stipulations of fact, and also stipulated that the trial judge could take judicial notice of their financial statements. The only issues for trial were the amount of child support to be paid by the father and whether he should pay any portion of the wife's legal fees and costs. On appeal, the father does not challenge any subsidiary findings as clearly erroneous. Instead, he argues in essence that the child support award is excessive in that it is not limited to the child's needs and accordingly in effect amounts to alimony or property division in disguise. Although we acknowledge that the award is high, it is supported by the judge's careful findings, was within the confines of our precedent, and we perceive no abuse of discretion. We accordingly affirm.

The facts are essentially undisputed, and we summarize them as follows. The unmarried parents have one child, who was born in July, 2013. The parents' relationship ended in October, 2014, and the mother returned to live with her parents in New Hampshire, where she and the child continued to live until the time of trial. The parents agreed to the removal of the child to New Hampshire, to the mother's primary physical custody of the child, and to a parenting schedule that results in the father having the child approximately one-third of the time (although this schedule is flexible given the father's work commitments). Given the fact that the parties agreed that the mother would not move beyond a certain distance from the father's residence, the judge found that the parties accepted that the mother may move from her parents' house in the future. The mother has been, and was at the time of trial, employed in a medical-related field and the judge imputed a gross annual income (base salary and bonus) to her of $118,000 ($2,269 per week). The mother's weekly needs, as stated on her financial report, are approximately $1,900 per week and include housing, child care, and medical, dental and vision insurance. The mother has gross assets valued at $182,000.

The father's gross assets are valued at approximately $10.5 million, and he has a gross weekly income of $22,237. His weekly income net of income taxes, FICA, and Medicare is approximately $15,101. He lives in a condominium at the Four Seasons in Boston. The father's weekly needs, as reflected on his financial statement are approximately $10,485, including medical insurance for himself and the child, long term disability insurance, parking, and 403B retirement contributions, but excluding child support. The judge found that the father's standard of living is substantially higher than the standard at which the child has been living since the termination of his parents' relationship.

At the time of trial, the child was three years old and attended a private preschool costing $7,200 per year, to which the father did not directly contribute. The parties reached an agreement in which they deferred decision on how the child's college expenses would be covered. As to more immediate expenses, the parties provided that they would share equally in extracurricular and activities expenses, provided they agree on them. If they do not agree, the party who wants the child to participate in the activity is to be responsible for all of the costs.

The judge calculated that, pursuant to the 2013 child support guidelines and based on the first $250,000 of the parties' combined income, child support would be $703 per week. At trial, the father sought a child support order of $800-the amount he had been paying under a temporary order. The mother, by contrast, sought an amount between $2,652 and $4,206 per week. As we noted at the outset, the judge ordered the father to pay $2,320 per week. We review the judge's decision regarding child support for abuse of discretion. Boulter-Hedley v. Boulter, 429 Mass. 808, 811 (1999). "Where[, as here,] the parties' combined gross income exceeds the maximum level at which the guidelines are strictly applicable, a judge has discretion to adjust upward from the 'minimum presumptive level of support.' " M.C. v. T.K., 463 Mass. 226, 233 (2012), quoting from Adams v. Adams, 459 Mass. 361, 393 (2011). See Guidelines § II-C (no presumptive application when combined annual gross income of parties is greater than $250,000).

The father first argues that the judge abused her discretion because the award was excessive and unrelated to the child's reasonable needs. The father's argument is based on a very narrow definition of need, which he hinges on the fact that the mother's financial statement showed a positive difference between her income and her expenses. The judge was not confined to looking at this so-called surplus in evaluating the child's needs. To the contrary, the judge's charge, even when applying the guidelines, is to consider and evaluate the totality of the circumstances in determining the parties' support obligation. Croak v. Bergeron, 67 Mass. App. Ct. 750, 755 (2006). To this end, the guidelines specifically permit deviation from the presumptive amount where any number of certain circumstances exist. One such circumstance of particular importance to this case is where "application of the guidelines would result in a gross disparity in the standard of living between the two households such that one household is left with an unreasonably low percentage of the combined available income." Guidelines § IV. While child support cannot "be used to equalize living standards in the parental households," the guidelines "allow a child to benefit from one parent's higher income and avoid a 'gross disparity' of standard of living." M.C., 463 Mass. at 234-235. Thus, the judge did not err in considering the parties' disparate means to determine the child's needs. "[C]hildren's needs are to be defined, at least in part, by their parents' standard of living and that children are entitled to participate in the noncustodial parent's higher standard of living when available resources permit." Brooks v. Piela, 61 Mass. App. Ct. 731, 737 (2004). As the judge found, the father "has the financial resources to provide experiences for [the child] that [the m]other has no practical hope of providing for him, even in part." And she could exercise her discretion to attempt to bridge this gap in opportunity between the parents.

Other factors were also properly considered by the judge. For example, the judge noted that the terms of the parties' agreement allocate a disproportionate (as measured against income) percentage of the child's expenses to the mother and, moreover, make any contribution from the father voluntary since he has agreed to share only in expenses of which he approves. Thus, the judge found force in the mother's argument that the father's only obligation is child support, a matter she could consider in setting the amount of the award. See Leonardo v. Leonardo, 40 Mass. App. Ct. 572, 577 (1996).

Moreover, in evaluating the "surplus" reflected on the mother's financial statement the judge could properly consider that the parties anticipated that the mother would move from her parents' home, where her living and child care expenses were deflated. The judge could take into account a reasonably anticipatable future expense or change in living circumstances such as this when setting the award.

For all of these reasons, we conclude that the judge was within her discretion in setting the amount of child support, although we acknowledge that the amount was high. For essentially the same reasons, the father's secondary argument (that the child support award was in effect a form of disguised alimony or property division) also fails. Although a child support award should not "provide a windfall to the child and custodial spouse," Pearson v. Pearson, 52 Mass. App. Ct. 156, 160 (2001), because the child support award was based on the child's needs, the order is neither disguised alimony nor property division.

Judgment affirmed.

      Before trial, the parties had reached an agreement as to all other issues, including custody.

      The mother's parents helped to provide child care.

      He also owned an additional residence in which the parties lived, but that he no longer owns.

      If the parties are unable to agree on a private school in the future, he is to attend public school where the mother lives.

      There is no suggestion that the judge was engaged in income equalization here.

      Each party's request for appellate fees and costs is denied.


text:
    CHELSEA HOUSING AUTHORITY v. Henry CORDERO & others.
    17-P-600
    Appeals Court of Massachusetts.
    Entered: January 26, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Robert Donovan, Patrick Flynn, James Haggerty, and Maria Rivera.

   This appeal presents the question whether the Superior Court judge abused his discretion when he denied a motion for reconsideration filed by certain defendants who, having been dismissed from the case, sought an award of attorney's fees incurred in defense. We affirm.

Background. The underlying case arises from some well-publicized events involving the plaintiff, Chelsea Housing Authority (CHA), a public body. The fundamental ground of CHA's claims is that from 2001 to 2011, its executive director, Michael McLaughlin, allegedly engaged in systematic fraudulent activity, including secretly inflating his own salary and misappropriating funds dedicated for other uses. In October, 2014, CHA accordingly sued several of its former employees, including McLaughlin, former staff members, and auditors.

In the same complaint, however, CHA also sued former members of CHA's board of commissioners, five of whom are appellants here (board members). The claims against the board members were (1) breach of fiduciary duty for failing to oversee and to discover McLaughlin's actions, and (2) negligence regarding McLaughlin and CHA's operations.

The board members moved to dismiss on several grounds, arguing in essence that a public body such as CHA cannot bring such claims against its public board members and that, in any event, the board members were immune from suit under G. L. c. 121B, § 13. The board members apparently subsequently added the argument that they also were immune under G. L. c. 258.

In a decision entered on November 20, 2015, the judge ordered the dismissal of the claims against each of the former board members. The judge's thoughtful opinion agreed that the board members were immune from suit pursuant to G. L. c. 121B, § 13. The judge also ordered the entry of a separate and final judgment pursuant to Mass.R.Civ.P. 54(b), 365 Mass. 820 (1974).

Board members' requests for attorney's fees. After judgment entered, the board members made two different, successive requests for attorney's fees, both of which were denied. The board members then moved for reconsideration of the denial of the second request, and it is the denial of the reconsideration motion that is the subject of this appeal. The sequence is as follows:

1. On January 14, 2016, fifty-five days after judgment entered, the board members filed a motion for fees under G. L. c. 231, § 6F. The order denying the motion entered on February 18, 2016. No appeal was taken from this denial.

2. On June 20, 2016, more than five months later, the board members filed yet another motion for attorney's fees, this time citing a different statute and theory, i.e., the Massachusetts Tort Claims Act, c. 258, § 2. The order denying this motion entered on July 12, 2016. No appeal was taken from this denial either.

3. On September 19, 2016, the board members filed a motion for reconsideration of the judge's order denying their second motion for fees, the motion based upon c. 258. The judge denied the motion for reconsideration on October 6, 2016, stating: "After review, denied for reasons stated in plaintiff's opposition memorandum."

Discussion. We review the judge's denial of a motion for reconsideration for abuse of discretion. See Audubon Hill S. Condominium Assn. v. Community Assn. Underwriters of America, Inc., 82 Mass. App. Ct. 461, 470-471 (2012). Passing the question whether any of the board members' fee requests were timely, the judge did not abuse his discretion here for at least the following reasons. First, the motion for reconsideration was not based upon changed circumstances or a "particular and demonstrable error" in the original ruling. Id. at 470. Indeed, the board members did not address these standards for reconsideration in their motion before the trial court. Second, the board members' argument, which is based upon c. 258, fails even if it were before us on an initial motion, because the record demonstrates that the board members never satisfied the requirements of the statute. Chapter 258, § 2, sets forth a detailed process for a public official to obtain counsel under that section. The statute contemplates that "if a cause of action is improperly commenced against a public employee of the commonwealth alleging ... the negligent or wrongful act or omission of such employee, said employee may request representation by the public attorney of the commonwealth." G. L. c. 258, § 2, inserted by St. 1984, c. 279, § 1. The public attorney-i.e., the Attorney General-can then (1) represent the employee, provided that certain conditions are met, or (2) determine that a conflict of interest exists. It is only if the public attorney concludes that a conflict exists that the employee could be entitled to attorney's fees for outside counsel.

Here, the process contemplated by c. 258 was never initiated because the board members never requested representation by the Attorney General. Chapter 258 is therefore inapplicable on these facts.

Finally, we acknowledge that the board members' frustration with the claims brought against them is both evident and, to some degree, understandable. As the judge remarked in denying the first request for fees, the claims brought against the board members were not well considered. But the board members' frustration begs the question whether they have presented a meritorious appeal from a denial of a motion for reconsideration of a successive request for fees. They have not.

Order denying motion for reconsideration affirmed.

      That statute, applicable to State housing authorities, provides in relevant part: "The members, employees, officers and agents of an operating agency shall not be liable as such on its contracts or for torts not committed or directly authorized by them ...." G. L. c. 121B, § 13, as appearing in St. 1983, c. 246.

      As noted, the board members brought two separate fee requests. The first request, invoking G. L. c. 231, § 6F, was brought fifty-five days after the November 20, 2015, entry of the rule 54(b) judgment, well after the deadline for other postjudgment motions, such as a motion to alter or amend. In regards to § 6F, this court has stated that "the necessary time for such a hearing procedure comes immediately after the primary event of a verdict, ruling, or order. At that moment, the total circumstances of the case are full and fresh in the mind of the judge.... [An untimely request] would utterly defeat the purpose and means contemplated by the statute." Powell v. Stevens, 69 Mass. App. Ct. 87, 92 n.7 (2007) (motion for fees under G. L. c. 231, § 6F, not timely). See Ben v. Schultz, 47 Mass. App. Ct. 808, 811-813 (1999).
      With respect to the second, successive motion for fees, invoking G. L. c. 258, the filing was even less timely, occurring more than five months after the board members' first motion for fees. The board members offered no reason why they could not have advanced all of the purported grounds for a fee award simultaneously, or why the judge should take up a successive motion for fees filed seven months after judgment entered.


text:
    COMMONWEALTH v. Travis L. DUPREE.
    16-P-1126
    Appeals Court of Massachusetts.
    Entered: January 26, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   A jury convicted the defendant of operating a motor vehicle under the influence of intoxicating liquor (OUI-alcohol), and, after a subsequent bench trial, the judge found the defendant guilty of the second offense portion of the complaint. On appeal the defendant argues that the judge erred by improperly limiting his cross-examination of the Commonwealth's witness. We affirm.

Background. The sole witness at trial was State trooper Kyle Flanagan. In June of 2014, Flanagan responded to an accident on Route 495, where he saw a vehicle in the breakdown lane. The vehicle had front end damage and appeared to be disabled. Flanagan determined that the vehicle had "jump[ed] the curb and then collid[ed] with [a] highway sign."

The defendant was the only person in the vehicle and was seated in the driver's seat. Flanagan observed "a strong smell of an alcoholic beverage emanating off [the defendant's] person and out the vehicle." When Flanagan approached, the defendant was "nodded off" and not responding to questions, but then woke up "in a violent type behavior," "beat[ing] his chest," "scratching himself," and "talking in incomprehensible language" before nodding off again. He "continue[d] this cycle of behavior" at the accident scene and at the hospital where he was transported.

In October of 2014, a complaint issued against the defendant charging him with operating a motor vehicle under the influence of drugs (OUI-drugs). In September of 2015, this complaint was dismissed, and a new complaint issued charging the defendant with OUI-alcohol, second offense. The case proceeded to trial on this charge in March of 2016.

During cross-examination, defense counsel elicited testimony from Flanagan that he was dispatched to the scene of the accident in June of 2014. Defense counsel then started to ask about what occurred "in approximately September of 2015," but the prosecutor objected. At an ensuing sidebar conference, the prosecutor asserted that defense counsel was seeking to elicit testimony that the district attorney's office had asked Flanagan at that time to file a different charge. When asked by the judge why the testimony was relevant, defense counsel responded:

"It's relevant because the charge ... goes from OUI drugs to OUI alcohol after being in the medical records .... [A]t the urging of the district attorney's office, Trooper Flanagan was asked to amend his complaint.... But there's nothing in his police report that says anything about alcohol. It's still OUI drugs."

The judge then sustained the objection, stating:

"I don't think the procedural posture of the changing complaint [is relevant] and I noted that [the prosecutor] didn't object during or after your opening statement when you made this an issue before the jury. And I frankly would have sustained the objection because I don't think there's any relevance to this jury in determining whether or not he's guilty of OUI alcohol, that there has been a previous charge that was different and was changed in light of an investigation by the district attorney's office into the evidence.
"So I'm going to sustain [the] objection and preclude you from ... making any inquiry as to when a prior complaint was taken out or dismissed or new charges were filed because ... I don't see how that issue is relevant or shows any bias or prejudice towards your client by the trooper or by the [district attorney's] office.... I certainly think you can cross-examine the trooper on the absence of any mention of alcohol in the police report. I don't know if you're getting there or not or what the evidence is at this point, but I don't think the charging issue is relevant and should be part of the evidence in this case."

Discussion. Both the Federal and State constitutions "guarantee a criminal defendant's right to confront the witnesses against him through cross-examination." Commonwealth v. Miles, 420 Mass. 67, 71 (1995). The right is "not absolute," however, and "the scope of cross-examination rests largely in the sound discretion of the trial judge." Ibid. In determining whether a limitation on cross-examination was permissible, "we weigh the materiality of the witness's direct testimony and the degree of the restriction on cross-examination." Id. at 72. We will not overturn the judge's determination unless the defendant can "demonstrate[ ] that the judge abused [her] discretion and that the defendant was prejudiced thereby." Ibid. See Commonwealth v. Mercado, 456 Mass. 198, 203 (2010).

The judge here did not abuse her discretion by precluding the defendant from questioning Flanagan about the "procedural posture of the changing complaint." That the charge was changed from OUI-drugs to OUI-alcohol following an investigation by the district attorney's office was not relevant to establish any fact at trial. That is, the prosecutor's charging decision, which could have been influenced by a variety of factors, did not make it more or less probable that the defendant drove his vehicle while under the influence of alcohol. Cf. Commonwealth v. DaSilva, 471 Mass. 71, 81 (2015) (testimony about "course of investigations generally," including "decision to arrest and charge someone with a crime," was "irrelevant" and "had no evidentiary value"); Commonwealth v. Johnson, 43 Mass. App. Ct. 509, 514 (1997) (delay in return of indictment "was of no significance or consequence" and should not have been put before jury). See Cedeno v. Commonwealth, 404 Mass. 190, 196-197 (1989) ("Prosecutors have wide ranges of discretion in deciding whether to bring criminal charges and in deciding what specific charges to bring").

The defendant does not, in fact, argue to the contrary on appeal. Instead, he claims that what trial counsel sought to ask Flanagan "was neither specific to the procedural posture nor to the charge itself." As a result, he says, the effect of the judge's ruling was to more broadly limit counsel from cross-examining Flanagan "about the facts and circumstances supporting the charge, and the ultimate conclusions drawn, both on the date [of] offense and at trial."

The record does not support the defendant's characterization, however. As is evident from the sidebar discussion, the judge only precluded defense counsel from asking Flanagan about the circumstances that led to the filing of a different charge in September of 2015. The judge in no way barred inquiry into the facts supporting the charge; to the contrary, she expressly allowed counsel to "cross-examine [Flanagan] on the absence of any mention of alcohol in the police report." Nor did the judge prohibit defense counsel from cross-examining Flanagan about the conclusions he drew on the date of offense, as compared to at trial. The prosecutor raised that issue on direct examination, and there is nothing to indicate that the judge precluded cross-examination on the same issue. Thus, as the judge did not limit inquiry into these areas, we discern no abuse of discretion. See Commonwealth v. Crouse, 447 Mass. 558, 574 (2006) (judge acted within discretion in limiting cross-examination, where his "ruling was based firmly on the purpose for which the witness was called" and did not preclude other inquiries).

Judgment affirmed.

      The complaint was later amended to reflect a second offense.

      We note that, in order to convict a defendant of OUI-alcohol, the jury need only find that the alcohol "contributed to the defendant's impairment." Commonwealth v. Stathopoulos, 401 Mass. 453, 457 (1988), quoting from State v. West, 416 A.2d 5, 9 (Me. 1980).

      Defense counsel took advantage of that opportunity when cross-examination resumed, asking Flanagan, "And in your police report, the only mention of alcohol is the fact that you smelled alcohol on [the defendant's] breath?" And earlier, counsel secured an admission from Flanagan that "constricted" pupils, which he observed on the defendant, is "an indicator of the possibility of narcotic usage" but not alcohol usage.

      Specifically, the prosecutor asked Flanagan, "[I]t's also fair to say that initially you charged the [d]efendant with operating under the influence of drugs, correct?" After Flanagan replied affirmatively, the prosecutor asked, "But you're able to tell this jury that based on all your observations you believed that, in part, he was at least also intoxicated by liquor, correct?" Flanagan again replied affirmatively.


text:
    COMMONWEALTH v. Roger FORCIER.
    16-P-762
    Appeals Court of Massachusetts.
    Entered: January 25, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Roger Forcier, posted a message on his status on the Web site Facebook, for which a jury convicted him of violating a G. L. c. 209A abuse prevention order. The defendant challenges the sufficiency of the evidence and asserts, further, that his Facebook post is protected speech under the First Amendment to the United States Constitution. We affirm.

Discussion. 1. Sufficiency of the evidence. To convict the defendant of violating an abuse prevention order, the Commonwealth must establish that "(1) a valid G. L. c. 209A order was entered by a judge and was in effect on the date of the alleged violation; (2) the defendant violated the order; and (3) the defendant had knowledge of the order." Commonwealth v. Silva, 431 Mass. 401, 403 (2000), citing Commonwealth v. Collier, 427 Mass. 385, 388-389 (1998). In this case, the defendant challenges the sufficiency of the second element, arguing, specifically, that the Commonwealth did not put forth sufficient evidence that he intended to convey a threat to the victim in violation of the "no abuse" portion of the restraining order. Accordingly, we review the evidence in the light most favorable to the Commonwealth to determine whether there was enough evidence to satisfy a rational trier of fact, see Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979), that the Facebook communication the defendant posted intentionally placed the victim "in fear of imminent serious physical harm." G. L. c. 209A, § 1, as amended through St. 1990, c. 403, § 2. See Collier, supra at 389 (violation of G. L. c. 209A order must be by "an intentional act by the defendant").

In the late evening of November 17, 2014, the defendant posted on Facebook that "[n]ot too many people can hit a moving target at 300-500 yards. I'm one of them. And right now, all I need is [twenty-five]. Two rounds. That's all it will take. One for you and one for ...." Although the defendant and the victim had blocked each other from communicating via Facebook, a friend of the victim viewed the post, took a "screen-shot" of it, and texted that photograph to the victim. The victim read the post the next day and reported it to the police that same day.

The post did not name the victim; however, where the restraining order had been recently modified to contain a twenty-five-yard stay-away provision, the jury could reasonably infer that the defendant's post, which boasts that he only needed twenty-five yards "to shoot you," was intended for the victim. The defendant's use of the word "you" rather than "her" or "she" also suggested that he intended the communication to be read by victim directly. The fact that the threat came through Facebook, from which the victim blocked the defendant's posts, does not alter this analysis. The jury could reasonable infer that, after ten years of dating, the victim and defendant would have accumulated mutual Facebook friends. See Commonwealth v. Walters, 472 Mass. 680, 696 n.33 (2015) (post on Facebook can communicate threat under stalking statute, especially when person placing post and victim have mutual friends).

The evidence also supported a reasonable inference that the defendant placed the victim in objectively reasonable fear of imminent physical harm. See Vittone v. Clairmont, 64 Mass. App. Ct. 479, 484 (2005). In the post the defendant bragged about his short and long range shooting capabilities and, further, his ability to shoot the victim in one round. To the victim, this was not simply hyperbole. She knew the defendant had been a sharpshooter in the Marines and, thus, she had good reason to fear imminent physical harm. Contrary to the defendant's contention, the fact that the defendant also claims to not "own a gun" did not take away from the reasonableness of the victim's fear or dissipate the immediacy of the threat. The restraining order was fairly new, suggesting the victim's prior abuse at the hands of the defendant was not attenuated, and the defendant was not imprisoned. Contrast Callahan v. Callahan, 85 Mass. App. Ct. 369, 377-378 (2014) (reasonable fear of "imminent serious physical harm" lessens over time after abusive partner is imprisoned).

2. First Amendment. The defendant also argues that his Facebook post is protected speech under the First Amendment. The defendant waived this issue by raising it for the first time on appeal. See Commonwealth v. Johnson, 470 Mass. 300, 307 (2014). In any event, even if we were to reach this issue, the defendant would not prevail because "the First Amendment does not protect conduct that threatens another." Commonwealth v. Robicheau, 421 Mass. 176, 183 (1995). We discern no error.

Judgment affirmed.


text:
    VIPER VENTURES, LLC v. Cheryl A. CORBETT& another.
    16-P-1617
    Appeals Court of Massachusetts.
    Entered: January 25, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Richard E. Warren. Don Corbett Real Estate Corporation was a party to this action in the trial court, but subsequently filed a notice of waiver of appeal and is therefore not a party to this appeal.

   Viper Ventures, LLC (Viper), brought this action for breach of contract to collect on three promissory notes, each of which was guaranteed by one or more of the defendants. After the defendants conceded liability, the case proceeded to a bench trial on damages. At trial Viper did not offer any financial records in evidence, but sought instead to prove its damages through the testimony of its manager, Ralph Caruso. Over the defendants' objections, the judge admitted Caruso's testimony relating to the amounts owed on each note and then ordered entry of judgment against the defendants as follows: $305,596.35 against Cheryl Corbett, $45,670.63 against Richard Warren, and $77,594.85 against Don Corbett Real Estate Corporation. Two of the defendants, Cheryl Corbett and Richard Warren, appeal, arguing that much of Caruso's testimony was inadmissible hearsay and violated the best evidence rule. We agree and thus vacate the portion of the judgment addressing damages and remand for further proceedings.

1. The defendants' admissions. As the judge ruled, the defendants made "significant substantive admissions" in their answer to the complaint, in papers they filed at summary judgment, and by failing to respond to Viper's requests for admissions. Consequently, the following facts are deemed admitted: the three notes were originally executed by Daniel Corbett, as trustee of the 27 Andover Street Trust, in favor of Danversbank and secured by mortgages on the property at 27 Andover Street (property). Defendant Cheryl Corbett guaranteed the first and second notes (in the principal amounts of $375,000 and $65,000), and she and defendant Richard Warren cosigned the third note (in the principal amount of $60,000).

In April of 2011, Danversbank assigned the notes to Viper. That same month, Daniel Corbett filed for bankruptcy under Chapter 7 of the United States Bankruptcy Code. In March of 2014, the bankruptcy trustee sold the property and made payment to Viper from the proceeds of the sale, but the amount paid was substantially less than what was owed on the notes.

All three notes are currently in default. The first two notes carry default rates of eighteen percent per annum, and the third carries a default rate of six and one-half percent per annum. Furthermore, by guaranteeing the notes, the defendants are obligated to pay for the costs of enforcement, including reasonable attorney's fees.

2. Trial on damages. Over the defendants' objection, the judge allowed Caruso to use a chalk during his testimony. The chalk contained detailed figures and calculations regarding (1) the principal amounts owed on the notes when Viper acquired them; (2) the rent payment credits applied to interest on the first note; (3) the interest that accrued on each note up to March of 2014, the date Viper received the proceeds from the sale of the property; (4) the amount of the sale proceeds; (5) how the proceeds were applied to the principal and interest on each note; (6) the interest that accrued on each note from March of 2014 to the date of trial; and (7) the total amount, including principal, interest, and attorney's fees, due on each note. Reading from the chalk, Caruso testified as to these figures and calculations, down to the decimal point, over numerous objections from the defendants.

On cross-examination Caruso testified that he prepared the chalk with his attorney, using the "original records." He admitted that those records were the basis of his knowledge of the principal amounts owed on the notes when Viper acquired them. He also admitted that he did not know those amounts when he was deposed by the bankruptcy trustee years earlier in 2012. When asked whether he had any of the records with him, he stated that he had left them in his office.

3. Discussion. We review a judge's evidentiary rulings for abuse of discretion. See N.E. Physical Therapy Plus, Inc. v. Liberty Mut. Ins. Co., 466 Mass. 358, 363 (2013). Here, the defendants contend that the judge abused his discretion by allowing Caruso to testify as to the contents of the original records he relied on to arrive at the calculations contained in the chalk, without requiring him to submit the records themselves. We agree.

Much of Caruso's testimony was inadmissible hearsay, and potentially double hearsay, as it was offered to prove the contents of the original records. His testimony also violated the best evidence rule, which requires a proponent to submit the original of a writing or record in order to prove the contents thereof, unless he can "show a sufficient excuse for its nonproduction." Commonwealth v. Driscoll, 91 Mass. App. Ct. 474, 480 (2017), quoting from Commonwealth v. Ocasio, 434 Mass. 1, 6 (2001). See Mass. G. Evid. § 1002 (2017). Viper made no such showing-offering only Caruso's testimony that he left the records in his office-and the judge did not make the necessary findings to excuse production of the originals. See Driscoll, 91 Mass. App. Ct. at 480.

We reject Viper's argument that Caruso's testimony was admissible because it was based on his personal knowledge, independent of his review of the documents. Again, Caruso conceded that the documents were the basis of his knowledge of the balance due on the notes, which was the starting point for his calculations. Furthermore, Viper failed to lay any foundation to establish that Caruso had independent personal knowledge of the numerous other figures on the chalk, with the exception of the rent payments. Regarding that issue, Caruso testified that he personally received and deposited the rents, that there was one tenant, and that the tenant paid the same amount every month. As the defendants acknowledged at oral argument, this foundational testimony was sufficient to establish Caruso's personal knowledge of the amount of rent he received. But the remainder of his testimony was based on the chalk, which was in turn based on the original records and not his independent knowledge. As the testimony thus sought to prove the content of those records, it should not have been admitted. See Quinn Bros. v. Wecker, 414 Mass. 815, 822 (1993) (trustee could not testify as to interest costs charged to trust where his knowledge of those costs was based on hearsay documents); Sylvania Elec. Prods., Inc. v. Flanagan, 352 F.2d 1005, 1007-1008 (1st Cir. 1965) (admission of summary of data contained in work records violated best evidence rule, where witness testified that he had some original records at home). Cf. National Grange Mut. Ins. Co. v. Walsh, 27 Mass. App. Ct. 155, 158 (1989) (plaintiff failed to establish amount of damages where it submitted "[n]o voucher or other evidence of payment," instead relying on "a conclusory memorandum prepared by counsel").

For these reasons the portion of the judgment on the issue of damages is vacated, and the matter is remanded for proceedings consistent with this memorandum and order. The judgment is otherwise affirmed.

So ordered.

vacated in part and remanded; affirmed in part.

      At various points in their brief, the defendants assert that Viper failed to offer evidence of the assignment. Such evidence was unnecessary, however, because the judge deemed the fact of the assignment admitted as a consequence of the defendants' failure to respond to Viper's requests for admission. The defendants do not claim that the judge abused his discretion in this respect.

      Had Viper submitted the records and established that they were made in the regular course of business, they would have been admissible under the business records exception to the hearsay rule. See Commonwealth v. Driscoll, 91 Mass. App. Ct. 474, 477 (2017).

      According to the chalk, when Viper acquired the notes, the amounts owed were, respectively, $366,299.69, $52,154.37, and $37,262.87. Caruso's calculations were based on those starting figures.

      Given our ruling, we need not reach the defendants' argument that the award of attorney's fees was an abuse of discretion.


text:
    COMMONWEALTH v. Marc A. MANSON-HING.
    17-P-826
    Appeals Court of Massachusetts.
    Entered: January 25, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   A Boston Municipal Court jury convicted the defendant of assault and battery by means of a dangerous weapon (a knife). On appeal, he claims that reversal is required because of errors in the jury instructions. We affirm.

Background. The victim was the stepfather of the defendant's three children. The incident that underlay the conviction took place during an exchange of the children in a public parking lot on January 18, 2016. According to the victim's testimony, a disagreement ensued regarding the manner in which the defendant was dealing with the children, including how he was buckling one of them into the victim's car. The victim testified that after he completed buckling the child and was about to get back into the driver's seat, the defendant "rushed" him and stabbed him with a knife. As confirmed by medical records, the blade penetrated the victim's skin in the lower chest area, even though he was wearing both a "hoodie" and a down jacket. On cross-examination, the victim repeatedly denied pushing the defendant out of the way in order to buckle the child, and he denied touching the defendant in any respect. He did acknowledge that after the stabbing, he retrieved his own knife from the car and chased after the defendant.

After the defendant fled, he called 911 to report the incident. The defendant admitted to the police that he had gotten into a fight with the victim and had stabbed him. However, he sought to portray the victim as the aggressor. According to the defendant, after the victim was being "too rough" putting the children into the car, "he tried to intervene and they ended up fighting." Although the defendant told police that he "had to stab [the victim]," no detail came in with regard to how the confrontation unfolded. The defendant's closing argument nevertheless was based on a theory that he stabbed the victim in self-defense. Apparently rejecting that theory, the jury convicted him.

Discussion. The defendant asserts two errors in the jury instructions. First, the defendant argues that the trial judge erred in instructing the jury that a knife is a dangerous weapon as a matter of law. Second, the defendant argues that the trial judge erred in failing to instruct the jury on the use of nondeadly force in self-defense. We address the defendant's arguments in turn.

a. Dangerous weapon. The judge instructed the jury that a dangerous weapon "is an item which is capable of causing serious injury or death." However, he then went on to instruct them that "as a matter of law ... a knife is a dangerous weapon, per se." Because the defendant lodged no objection to this instruction, we review to determine whether any error caused a substantial risk of a miscarriage of justice. Commonwealth v. Delaney, 442 Mass. 604, 615 (2004).

Given the nature of the knife here, the Commonwealth appropriately acknowledges that the judge erred by instructing the jury that it was dangerous per se. See Commonwealth v. Bois, 476 Mass. 15, 29-30 (2016). We agree with the Commonwealth that this error nevertheless does not require reversal of the defendant's conviction. To demonstrate a substantial risk of a miscarriage of justice, a defendant has to show "serious doubt whether the result of the trial might have been different had the error not been made." Commonwealth v. LeFave, 430 Mass. 169, 174 (1999). In light of the dangerous manner in which defendant used the knife here-that is, to stab the victim in the chest-we are confident that the jury's verdict would not have been different had they properly been instructed. See Commonwealth v. Delaney, supra (where defendant used a pocket knife to stab the victim multiple times, including two stab wounds to the abdomen, erroneous instruction that the knife was dangerous per se did not create a substantial risk of a miscarriage of justice).

b. Self-defense. The judge instructed the jury at length about self-defense, including instructing them that "if you have a reasonable doubt whether or not the defendant acted in self-defense, your verdict must be not guilty." In providing further detail about such a defense, the judge employed instructions that apply to a defendant's use of deadly force to defend himself. See Commonwealth v. Pike, 428 Mass. 393, 396 (1998). Thus, for example, the judge instructed that one way the Commonwealth could overcome a claim of self-defense was "by proving beyond a reasonable doubt that there was no overt act, either words, a gesture, or some other action that gave rise to a reasonable belief of attack or immediate danger of great bodily harm."

The defendant does not claim that the judge misstated the law of self-defense applicable to the use of deadly force. Rather, he claims-for the first time on appeal-that the judge also should have instructed the jury about self-defense through the use of nondeadly force. See id. at 395, quoting from Commonwealth v. Baseler, 419 Mass. 500, 502-503 (1995) ("The right to use nondeadly force arises at a 'somewhat lower level of danger' than the right to use deadly force"). Had the judge done so, the defendant maintains, the jury might well have found his attacking the victim with the knife to have been justified.

Assuming arguendo that it is possible to stab someone with a knife in the abdomen without using "deadly force," we discern no reversible error here. Although the defendant's statement that he "had to stab" the victim was admitted, there was no evidence that the victim had attacked the defendant at any point prior to the stabbing. Moreover, the only evidence of when the stabbing took place was that it occurred as the victim was getting back into his car in a public parking lot (indicating that the defendant in any event had ample opportunity to retreat from any confrontation). On this record, the defendant was not entitled to a self-defense instruction with regard to either deadly or nondeadly force. See Commonwealth v. Maguire, 375 Mass. 768, 772 (1978) (a self-defense "instruction need not be given where there was insufficient evidence to support a theory of self-defense"). See also Commonwealth v. Tirado, 65 Mass. App. Ct. 571, 575-576 & n.2 (2006) (use of deadly or nondeadly force in self-defense both "require that the defendant retreat if retreat is reasonable in the circumstances; that is, he must avail himself of all proper means to avoid physical combat before he resorts to the use of force" [quotation omitted] ). Accordingly, "[t]he judge's instructions permitting the jury to consider self-defense by the use of deadly force ... granted the defendant a benefit to which he was not entitled." Commonwealth v. Doucette, 430 Mass. 461, 470 (1999). In addition, in light of the absence of evidence supporting the defendant's contention that he acted in self-defense through the use of either deadly or nondeadly force, he has not shown any likelihood that the absence of instruction on a defendant's use of nondeadly force affected the jury's verdict.

Judgment affirmed.

      The defendant did not testify, but his hearsay statements to the police were admitted.

      During his opening statement to the jury, defense counsel characterized the knife as an ordinary pocket knife with two small folding blades (one about two and a half inches long, and the other about one and a half inches long). The knife itself was admitted in evidence but not provided to us, and there was little testimony at trial describing it. On appeal, the defendant, in the addendum to his brief, provided two pictures of what he maintains is the knife produced by the Commonwealth at trial. He also moved to have the knife transferred to this court (according to the motion, the knife is no longer in the possession of the Boston Municipal Court but was returned to the police.) For its part, the Commonwealth appears not to dispute the defendant's characterization of the knife or that the pictures provided by the defendant are of the knife. In any event, the Commonwealth acknowledges that the knife is not of the type whose possession is prohibited by statute. See G. L. c. 269, § 10(b ) ; Commonwealth v. Higgins, 85 Mass. App. Ct. 534, 535-537 (2014). Because we have assumed that the knife is as the defendant has characterized it, we deny his motion to transfer the knife as moot.


text:
    COMMONWEALTH v. Marcel MAY.
    16-P-1513
    Appeals Court of Massachusetts.
    Entered: January 24, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury trial, the defendant was convicted of carrying a firearm without a license in violation of G. L. c. 269, § 10(a ). In this appeal, he claims that there was insufficient evidence to support his conviction and that there was error in the prosecutor's closing statement. We affirm.

1. Sufficiency of the evidence. In reviewing the sufficiency of the evidence, we view the evidence in the light most favorable to the Commonwealth with specific reference to the substantive elements of the offense. See Jackson v. Virginia, 443 U.S. 307, 324 n.16 (1979) ; Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). "In order to sustain a conviction, the Commonwealth must prove beyond a reasonable doubt that the defendant 'actually or constructively possessed the firearm,' and that he did so knowingly." Commonwealth v. Romero, 464 Mass. 648, 652 (2013), quoting from Commonwealth v. Hubbard, 69 Mass. App. Ct. 232, 237 (2007). "Possession implies 'control and power,' ... exclusive or joint ..., or, in the case of 'constructive possession,' knowledge coupled with the ability and intention to exercise dominion and control." Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989), quoting from Commonwealth v. Rosa, 17 Mass. App. Ct. 495, 498 (1984).

In the light most favorable to the Commonwealth, the jury could have found the following: after police officers attempted to stop the car in which the defendant was a passenger, the driver slowed, but then accelerated and drove away from the police cruiser. A police officer saw an arm reach out of the front passenger's window and throw a dark object toward a parked vehicle and a building. The car did not sway or move when the object was thrown. The vehicle eventually stopped 150 yards away from where the object was discarded. After detaining the defendant, the officers returned to that location and retrieved a loaded 9-millimeter handgun from underneath the passenger's side of a parked vehicle. The handle was broken and plastic pieces of the handle were found near the firearm.

From this evidence, it was a reasonable inference that the defendant, the sole passenger, who was seated in the front passenger seat, threw the firearm from the passenger window. Contrary to the defendant's claim, that inference was not defeated because he neither owned nor operated the car, and the firearm was not found on his person or in the car. Such matters affect the weight of the evidence, not its sufficiency. In any event, the claim is simply not relevant to the evidence here, which supports the rational conclusion that the defendant-passenger threw the gun out the window. Therefore, the evidence was sufficient to establish actual possession and knowledge of the firearm. See Commonwealth v. Jefferson, 461 Mass. 821, 827 (2012).

2. Closing argument. The defendant claims the prosecutor erred in his closing argument in three respects, by: (1) misstating the evidence in suggesting that the defendant informed the driver about the gun; (2) impermissibly vouching for a police officer's credibility; and (3) relying on facts not in evidence to argue that the defendant threw the gun with such force that it bounced off a nearby wall. The defendant objected to only the last claim. We review the preserved claim under the prejudicial error standard and the remaining claims under the substantial risk of a miscarriage of justice standard. Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). Commonwealth v. Springer, 49 Mass. App. Ct. 469, 476 (2000). In all three claims, we find no error.

First, with regard to the defendant's unpreserved claim that the prosecutor misstated evidence, the prosecutor stated: "The evidence suggests that [the driver] didn't stop because the passenger informed him that the gun was in the car." A prosecutor may, as here, "analyze the evidence and suggest what reasonable inferences the jury should draw from that evidence." Commonwealth v. Grimshaw, 412 Mass. 505, 509 (1992). There was no error.

Second, with regard to the defendant's unpreserved claim that the prosecutor impermissibly vouched for the witness's credibility, the prosecutor referenced "the arm out the window," a fact in evidence, to which he retorted: "There's no escaping that." This statement merely responded to the defendant's attack on the witness's credibility and did not impermissibly imply that the police witness inherently should be believed. Contrast Commonwealth v. Kelly, 417 Mass. 266, 271 (1994). The jury, properly instructed, were free to weigh the credibility of the officer's testimony. Commonwealth v. Brewer, 472 Mass. 307, 315 (2015).

Third, relative to the defendant's preserved claim that the prosecutor referred to facts not in evidence, we disagree. This remark was based on the officer's testimony, and the reasonable inferences drawn therefrom. In fact, the officer testified that the object was thrown "at a fast pace" from the front passenger window. He estimated that the object "went up about 50 feet-50 degrees, so it would be over-it appeared to be over the [parked] vehicle." He further testified that a building was located twenty feet away from the car's passenger window. After the car was stopped, the police found a broken firearm with several scattered pieces of plastic underneath a parked car adjacent to a wall of the nearby building. The argument was not improper.

In any case, the judge gave two instructions to the jury, both before and after the closing arguments, that such arguments are not evidence. Even if there were any missteps by the prosecutor, these instructions would have been sufficient to alleviate any potential prejudice. Furthermore, "[j]urors are presumed to follow a judge's instructions." Commonwealth v. Williams, 450 Mass. 645, 651 (2008).

Judgment affirmed.

      We have considered the defendant's subsidiary arguments and find nothing that warrants further discussion. See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).


text:
    CERTAIN UNDERWRITERS AT LLOYD'S, LONDON v. ATLANTIC CONSTRUCTION SERVICES, INC.
    16-P-1646
    Appeals Court of Massachusetts.
    Entered: January 24, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Certain Underwriters at Lloyd's, London (Lloyd's) brought this action seeking a declaratory judgment that it has no duty to indemnify its insured, Park Grove Realty Trust (Park Grove), with respect to a personal injury verdict against Park Grove and its independent contractor, Atlantic Construction Services, Inc. (Atlantic). Judgment entered in favor of Lloyd's after cross motions for summary judgment. On appeal, Atlantic makes three arguments. First, Atlantic argues that Lloyd's failed to preserve its right to raise the independent contractors exclusion during the underlying tort action and therefore is estopped from doing so now. Next, Atlantic argues that the independent contractors exclusion is ambiguous and the ambiguity must be construed against Lloyd's. Finally, Atlantic argues that, even if the independent contractors exclusion is unambiguous, the exclusion does not apply to the underlying tort action because Park Grove's negligence, not Atlantic's, is the basis for the action against Park Grove. We affirm.

The essential facts are undisputed. In 2002, Park Grove hired Atlantic, an independent contractor, to (among other things) construct a sidewalk as part of a residential housing project. Atlantic stopped paving part of a sidewalk short of a driveway on the property and built a "cold joint" between the two. In 2006, Claire LaPosta tripped and fell on the cold joint and injured herself. LaPosta sued Atlantic for its negligent construction of the "cold joint" and Park Grove for its failure to warn of the defect created by Atlantic. A jury returned a verdict that assigned, as relevant here, fifty-five percent fault to Atlantic and thirty percent fault to Park Grove, jointly and severally. Lloyd's refused to indemnify Park Grove for its portion of the judgment; as a result, Atlantic (through its insurer) satisfied the full amount. This suit followed in which Lloyd's, relying on the independent contractors exclusion contained in its general liability policy under which Park Grove was insured, sought a declaration that it had no duty to indemnify Park Grove. That provision excludes from coverage " 'bodily injury' or 'property damage' arising out of operations performed for the Named Insured by Independent Contractors or acts or omissions of the Named Insured in connection with his general supervision of such operations."

First, Atlantic argues that Lloyd's failed to preserve its right to raise the independent contractors exclusion during the underlying tort action and therefore is estopped from doing so now. Atlantic raises this issue for the first time on appeal and thus, the argument is waived. International Fid. Ins. Co. v. Wilson, 387 Mass. 841, 851 (1983). The fact that Park Grove made the same point below, does not help Atlantic now. See ibid. (a party cannot adopt a coparty's argument made below for the first time on appeal).

Next, Atlantic argues that the independent contractors exclusion is ambiguous when the phrase "arising out of" is read in the context of other provisions in the policy. "Determining the existence of a contract ambiguity presents a question of law for the court," Bank v. Thermo Elemental Inc., 451 Mass. 638, 648 (2008), which we review de novo, Balles v. Babcock Power, Inc., 476 Mass. 565, 571 (2017). We perceive no ambiguity here. The phrase is "generally understood to mean originating from, growing out of, flowing from, incident to, or having connection with." Cable Mills, LLC v. Coakley Pierpan Dolan & Collins Ins. Agency, Inc., 82 Mass. App. Ct. 415, 424 (2012) (quotation omitted). See Bagley v. Monticello Ins. Co., 430 Mass. 454, 457 (1999) (finding "arising out of" to be unambiguous and to have a meaning "analogous to 'but for' causation"); Fuller v. First Financial Ins. Co., 448 Mass. 1, 5-6 (2006) (same). And that customary understanding leads to a natural and clear meaning of the exclusion, namely that bodily injury or property damage connected to the operations of the insured's (Park Grove) subcontractor (Atlantic) are excluded from coverage.

In the alternative, Atlantic argues that, even if the independent contractors exclusion is unambiguous, the exclusion does not apply to the underlying tort action because Park Grove's liability arises out of Park Grove's failure to warn of the defect in the sidewalk rather than Atlantic's negligence in performing the work. The phrase "arising out of" is to be read expansively and "suggest[s] a causation more analogous to 'but for' causation, in which the court examining the exclusion inquires whether there would have been personal injuries, and a basis for the plaintiff's suit, in the absence of the objectionable underlying conduct." Bagley, supra. We therefore look at "the source from which the plaintiff's personal injury originates," not "the specific theories of liability alleged in the complaint." Id. at 458. The source of LaPosta's injury is indisputably the "cold joint" created by Atlantic. Put otherwise, but for Atlantic's "cold joint," LaPosta would not have been injured. LaPosta's injury therefore arises out of Atlantic's actions and the independent contractors exclusion applies.

Judgment affirmed.

      Park Grove is not a party to the appeal.

      In our de novo review, we view the evidence in the light most favorable to the party against which judgment was entered. Herbert A. Sullivan, Inc. v. Utica Mut. Ins. Co., 439 Mass. 387, 393 (2003).

      Atlantic also argues two other theories of ambiguity: (1) a reading of the independent contractors exclusion in the context of the whole insurance policy renders the exclusion ambiguous; and (2) errors in the schedule of forms and endorsement render the exclusion ambiguous. However, neither of these was raised below and they are accordingly waived. International Fid. Ins. Co., supra.

      Atlantic also argues that if "arising out of" is unambiguous, then the phrase "or acts or omissions of the Named Insured in connection with his general supervision of such operations" should be disregarded as superfluous. Atlantic did not raise this argument below and it is therefore waived. International Fid. Ins. Co., supra.


text:
    COMMONWEALTH v. Lorenzo BALBUENA, Jr.
    17-P-37
    Appeals Court of Massachusetts.
    Entered: January 24, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant raises two issues in this appeal from the revocation of his probation. He argues first that the revocation was impermissibly based on unreliable hearsay and, second, that the evidence was insufficient to prove by a preponderance of the evidence that he used a motor vehicle without authority, G. L. c. 90, § 24(2)(a ).

The defendant's argument that the probation revocation rested entirely on unreliable hearsay is defeated by the record. To be sure, hearsay evidence was introduced at the revocation hearing; however, there was also significant evidence of the testifying officer's personal observations. Thus, this is not a case of probation being revoked based solely on hearsay evidence.

Accordingly, the judge needed only to determine that the hearsay was sufficiently reliable in order to rest his decision on it. Commonwealth v. Patton, 458 Mass. 119, 132 (2010). There are " 'at least five criteria' to be considered on the question of trustworthiness and reliability," not all of which need be present for hearsay to be deemed trustworthy and reliable in a particular case. Id. at 132-133, quoting from the Commentary to Rule 6 of the District Court Rules for Probation Violation Proceedings 800 (LexisNexis 2008-2009). Those factors are: "(1) the level of factual detail, rather than generalized and conclusory assertions; (2) whether the statement is based on personal knowledge and direct observation; (3) whether the statement is corroborated by evidence submitted by the probationer; (4) whether the statement was provided under circumstances that support the veracity of the source; and (5) whether the statement was provided by a disinterested witness." Ibid.

We discern no abuse of discretion in the judge's implicit determination that the hearsay was reliable. The out-of-court statements of the defendant's girl friend were factually detailed and based on her personal knowledge and observation. The statements were corroborated by the officer's subsequent investigation. Further, the fact that the girl friend could be prosecuted for making a false report to a police officer "bolsters the reliability of the report[ ]." Commonwealth v. Nunez, 446 Mass. 54, 59 (2006), quoting from Commonwealth v. Durling, 407 Mass. 108, 121 (1990). We acknowledge that the girl friend was not "disinterested," but that is not dispositive. Similarly, we see no abuse of discretion with respect to the admission of the statements by the defendant's friend, which were based on his (the friend's) personal knowledge and corroborated by other evidence.

Since we see no error or abuse of discretion in admitting the hearsay evidence, that evidence must be considered when evaluating the defendant's argument that the evidence was insufficient. General Laws c. 90, § 24(2)(a ), as amended through St. 1974, c. 418, provides, in relevant part, "[W]hoever uses a motor vehicle without authority knowing that such use is unauthorized shall ... be punished." "The crime comprises at least four distinct elements: (1) use; (2) of a motor vehicle; (3) without authority; and (4) knowing that such use is unauthorized." Commonwealth v. Campbell, 475 Mass. 611, 616 (2016). The defendant challenges the sufficiency of the Commonwealth's proof with respect to all four elements.

For purposes of the defendant's argument, we view the facts, together with the reasonable inference to be drawn from them, in the light most favorable to the Commonwealth to determine whether the Commonwealth met its burden to prove each element of the crime by a preponderance of the evidence. See Commonwealth v. Holmgren, 421 Mass. 224, 227 (1995) (standard of proof in a probation revocation proceeding is the civil standard of preponderance of the evidence). "A proposition is proved by a preponderance of the evidence 'if it is made to appear more likely or probable in the sense that actual belief in its truth, derived from the evidence, exists in the mind or minds of the tribunal notwithstanding any doubts that may still linger there.' " Commonwealth v. Hill, 52 Mass. App. Ct. 147, 154 (2001), quoting from Sargent v. Massachusetts Acc. Co., 307 Mass. 246, 250 (1940).

Taken in this light, the facts showed that, on the date in question, the defendant's girl friend called police to report that her van had been stolen. She told the responding officer that the defendant, along with Jose White, had been at her house earlier in the evening, and that he had been drinking to the point where his "demeanor" changed. White was the defendant's friend, and the defendant had picked him up with the van earlier in the evening. Upon the defendant's change in demeanor, the girl friend asked both the defendant and White to leave her house. Consistent with the fact that his demeanor had visibly deteriorated as a result of alcohol and with the fact that she knew the defendant's license had been suspended, the girl friend did not want the defendant to drive her van. Although it is true that there is no direct evidence that the girl friend herself expressed this sentiment to the defendant, there was evidence that her wish was expressed through her son, who asked the defendant for the keys to his mother's van before the defendant left the house. Upon assuring the son that he (the defendant), did not have the keys, the defendant and White left.

When the girl friend awoke several hours later that evening, she discovered her van was missing. Suspecting that it had been taken by the defendant, and therefore having an idea of where it (and he) might be located, she suggested to the responding officer several locations where the van and the defendant might be found. The defendant was located where his girl friend predicted. The van was about 100-150 feet off the roadway in a grassy field. The driver's seat was empty; the defendant was asleep on the ground behind the van. White was asleep in the passenger seat. Both men were intoxicated.

The evidence was sufficient to prove, by a preponderance of the evidence, the elements of use of a motor vehicle without authority. The defendant's use (and, although not required, operation) of the van can be inferred from the fact that it was located where his girl friend had predicted he might go, from his proximity to the car when it was located, and from the fact that White was in the passenger seat rather than the driver's seat. It can be inferred from the fact that the girl friend's son asked for the keys after his mother asked the defendant to leave the house due to his drinking, that the defendant did not have her permission to use the van given his condition-whether that condition was (as the girl friend stated) his suspended license, or (as the circumstances suggest) alcohol, or both. The judge was permitted to find, using common sense and experience, that a request for a vehicle's keys is the functional equivalent of a statement denying permission to use a vehicle, and that the defendant would have understood it as such.

For the reasons set out above, we conclude that the judge did not abuse his discretion in revoking the defendant's probation. See Commonwealth v. Bukin, 467 Mass. 516, 521 (2014) (probation revocation is reviewed for abuse of discretion).

Order revoking probation and imposing sentence affirmed.

      After the defendant and White were located with the van in the field, White stated that the defendant had picked him up earlier in the evening. It is a fair inference from these facts and the girl friend's son's request to return the keys that the defendant had used the van to pick up White.

      She also told the officer that she had not given the defendant permission to use the van because his license was suspended.


text:
    COMMONWEALTH v. Raneek SORRELL.
    16-P-802
    Appeals Court of Massachusetts.
    Entered: January 23, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Raneek Sorrell, appeals from an order denying his motion to withdraw his guilty plea and for a new trial. The defendant argues on appeal, among other things, that the judge erred in denying his motion because there was an insufficient factual basis set forth in his guilty plea for the crime of simple possession of marijuana. We agree and, thus, reverse the order denying the defendant's motion to withdraw his guilty plea and for a new trial.

Background. The defendant was charged with the following: (1) possession of a controlled substance near a school zone, in violation of G. L. c. 94C, § 32J ; (2) possession of a class D substance with the intent to distribute, in violation of G. L. c. 94C, § 32C ; (3) disturbing a school or other assembly, in violation of G. L. c. 272, § 40 ; and (4) carrying a dangerous weapon, in violation of G. L. c. 269, § 10(b ). At the plea hearing, the prosecutor and the defendant entered a plea bargain where the parties agreed to the "dismiss[al] [of] the school zone [charge]" and a reduction of the charge of "possession [of a class D substance] with intent [to distribute] ... to [a charge of simple] possession [of a] [c]lass D substance," in violation of G. L. c. 94C, § 34. The parties also agreed to enter a continuance without a finding for two years for the charges of disturbing a school or other assembly, carrying a dangerous weapon, and unlawful possession of a class D substance. At his plea hearing, the defendant admitted to the following facts, as recited by the prosecutor:

"January 6, 2011 at approximately 11:10 A.M. the officers were posted in the second floor main hallway [of Dorchester Academy] when [the defendant] approached the Sergeant and stated he just got shoved into a brick wall, head first, while inside stairwell number 6 by a fellow student, [name omitted]. [The defendant] was immediately referred to the nurse for cuts and scrapes to his left temple area.
"[The] [r]eporting officer then made contact with [the fellow student] who stated that he was walking up the stairwell after lunch with [the defendant] ... [and] the defendant ... claimed to have really good weed on him for sale. [The defendant] then placed or produced several plastic bags of marijuana from his hat. [The fellow student] felt as though [the defendant] was charging too much for cheap weed.
"A physical altercation [ensued] in which both parties were pushing and shoving one another.... The Community Field Coordinator, Karen Greene [ph], conducted an administrative search of the defendant ... and recovered four individually packaged plastic bag[s] containing a green leafy substance, marijuana, from [the defendant's] hat.
"At this time [the defendant] was advised that he was being placed under arrest and he was handcuffed.... [W]hen he was arrested they found and recovered a 3.5 inch serrated black M-Tech knife from the defendant's pants' pocket."

Discussion. "Treating the defendant's motion to withdraw his plea as a motion for a new trial, and recognizing that such a motion is addressed to the trial judge's sound discretion, we review the judge's decision for abuse of discretion or clear error of law, and we reverse only if it appears 'manifestly unjust, or ... the [proceeding] was infected with prejudicial constitutional error.' " Commonwealth v. Loring, 463 Mass. 1012, 1013 (2012) (citations omitted). "A judge may not accept a guilty plea unless there are sufficient facts on the record to establish each element of the offense." Commonwealth v. Hart, 467 Mass. 322, 325 (2014) (quotation omitted). "[B]y pleading guilty, a defendant waives his right to be convicted on proof beyond a reasonable doubt." Commonwealth v. Armstrong, 88 Mass. App. Ct. 756, 758 (2015). "Accordingly, a judge accepting a guilty plea 'is not required to determine whether the defendant is or is not guilty of the offense charged.' " Ibid. (citation omitted). Instead, the judge "need determine only whether the evidence which he had heard, plus any information he has obtained in the plea hearing, is sufficient, when considered with reasonable inferences which may be drawn therefrom, to support the charge to which the defendant is offering a plea of guilty." Ibid. (citation omitted). "Relief under rule 30(b) is 'limited to cases where "it appears that justice may not have been done." ' " Id. at 760, quoting from Commonwealth v. Lopez, 426 Mass. 657, 662 (1998).

General Laws c. 94C, § 34, as amended by St. 2008, c. 387, § 5, provides that "[n]o person knowingly or intentionally shall possess a controlled substance" and that "[a]ny person who violates this section by possession of more than one ounce of marihuana ... shall be punished by imprisonment in a house of correction for not more than six months or a fine of five hundred dollars, or both." According to the plain language of the statute, the Commonwealth must show that the defendant possessed more than one ounce of marijuana in order to prove that he violated the statute. Contrast Commonwealth v. Keefner, 461 Mass. 507, 511-512 (2012) ("[I]n addition to expressly decriminalizing the possession of one ounce or less of marijuana, [St. 2008, c. 387, § 5,] specifically amended § 34 [the simple possession statute] to set forth an exemption of possession of marijuana of one ounce or less under § 32L from the crime of unlawful possession and set forth an exemption of possession of marijuana of one ounce or less under § 32L from the penalties associated with simple possession").

Here, the Commonwealth failed to recite any facts during the defendant's plea colloquy as to the amount of marijuana that the defendant possessed at the time of his arrest. Moreover, there was no information provided in the plea hearing that would have allowed the judge to draw the reasonable inference that the defendant possessed more than one ounce of marijuana at the time of his arrest.

Accordingly, the order denying the defendant's motion to withdraw his guilty plea and for a new trial is reversed.

So ordered.

Reversed.

      Because we vacate the defendant's guilty plea based on the foregoing reasons, we need not reach the defendant's remaining arguments: (1) that his plea was not given voluntarily, intelligently, and knowingly because he did not understand the nature of the elements of unlawful possession and, instead, he merely thought that he was being charged with a civil violation; (2) that his plea counsel was ineffective in regard to immigration matters; and (3) that he improperly was denied an evidentiary hearing.


text:
    James P. BARRON v. John DIPIANO.
    16-P-1287
    Appeals Court of Massachusetts.
    Entered: January 29, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   In this legal malpractice action, the plaintiff claims that the defendant negligently represented him in a proceeding to modify a divorce judgment. A Superior Court judge allowed the defendant's motion for summary judgment, concluding that the plaintiff had no reasonable expectation of proving that the defendant failed to exercise reasonable care during the brief period of his representation. The plaintiff appeals.

The basic facts are undisputed. In September of 2010 the plaintiff filed a pro se complaint in the Probate and Family Court to modify a 2007 divorce judgment. The complaint sought two modifications: an order setting "a specific coparenting schedule" and an adjustment to "the plaintiff's obligation to contribute to [the children's] post-secondary education." In November of 2010, the plaintiff hired the defendant to represent him in the modification proceeding.

The representation lasted less than four months. During that time the plaintiff "would not provide [the defendant] with any current financial information." Eventually, in February of 2011, the defendant filed a motion to withdraw as counsel, citing a breakdown of the attorney-client relationship. That motion was allowed in March of 2011. The plaintiff then hired a different attorney to represent him in the pending action.

Years later, the plaintiff discovered that he was paying an excessive amount of child support because the divorce judgment did not consider Social Security Disability Insurance (SSDI) benefits paid to his children as a credit against his support obligation. The plaintiff alleges that he made this discovery in October of 2014 and that "immediate action was taken to remedy" the issue. He then initiated this lawsuit, claiming that the defendant "negligently failed to properly calculate [the] plaintiff's child support obligations" and that, as a result, the "plaintiff overpaid child support until [the error] was discovered in October 2014." After a hearing and a subsequent telephone conference, the judge granted summary judgment for the defendant.

We review the judge's decision de novo, taking the facts in the light most favorable to the plaintiff. See Boazova v. Safety Ins. Co., 462 Mass. 346, 350 (2012). Summary judgment is appropriate if the defendant can show that the plaintiff "has no reasonable expectation of proving an essential element of [his] case." Ibid. The essential elements of a claim for legal malpractice are that the "attorney committed a breach of the duty to use reasonable care," "the plaintiff suffered actual loss," and "the attorney's negligence proximately caused such loss." Atlas Tack Corp. v. Donabed, 47 Mass. App. Ct. 221, 226 (1999). Although these issues are generally factual ones for the jury, they may be resolved as a matter of law at the summary judgment stage. See Girardi v. Gabriel, 38 Mass. App. Ct. 553, 558-559 (1995) ; Minkina v. Frankl, 86 Mass. App. Ct. 282, 287-289 (2014).

The judge accepted, as do we, the truth of the plaintiff's allegation that the defendant's representation was for the broader purpose of challenging the divorce judgment and was not limited to the two grounds for modification specified in the plaintiff's pro se complaint. Even so, the plaintiff cannot prove two essential elements of his claim: that the defendant failed to meet the standard of care, and that his conduct proximately caused the plaintiff's loss. Again, it is undisputed that the plaintiff would not provide his current financial information to the defendant. In fact, the plaintiff admits in his brief that, at some point "after [the defendant] commenced representation," the plaintiff "stopped communicating" with him "to save legal fees." There is no evidence in the summary judgment record, and no inference can be drawn, that the defendant was ever informed that the plaintiff's children were receiving SSDI benefits. Thus, given that the defendant was not put on notice of the factual predicate for modifying the child support order, the plaintiff has no reasonable expectation of proving that the defendant violated the standard of care by failing to seek such a modification.

Nor can the plaintiff show that the defendant's purported negligence was the proximate cause of the plaintiff's injury. The defendant represented the plaintiff for only a brief four-month period, after which new counsel appeared for the plaintiff in the modification proceeding. Nothing that the defendant did or did not do in those four months prevented the plaintiff from subsequently requesting a modification of his child support obligation. We therefore conclude that there is no triable issue on causation. See Girardi, 38 Mass. App. Ct. at 559-560 ; Fiduciary Trust Co. v. Bingham, Dana & Gould, 58 Mass. App. Ct. 245, 252-254 (2003).

Judgment affirmed.

      The judge dismissed one of the two counts of the complaint pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), on the ground that it was duplicative of the other count. The plaintiff does not challenge that ruling.

      The defendant's renewed motion to strike the plaintiff's brief and dismiss the appeal is denied.