Massachusetts Cases ©   Coverage   Help   Search Westlaw   Topic: AllCivil RightsCommercial Law & ContractsCriminal JusticeEducationEnvironmental LawEstate Planning & ProbateFamily LawFinance & BankingGovernment ContractsHealth & MedicineInsuranceLabor & EmploymentLegal EthicsPension & Retirement BenefitsProfessional MalpracticeReal PropertySecurities & Blue Sky LawTaxationTort LawWorkers Compensation Kennan S. PELLOT v. COMMONWEALTH of Massachusetts. , Mass.App.Ct., November 20, 2009 By the Court (TRAINOR, SMITH & VUONO, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 A Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974), motion cannot be employed as a substitute for a timely appeal. See Muir v. Hall, 37 Mass.App.Ct. 38, 41 (1994); Piedra v. Mercy Hosp., Inc., 39 Mass.App.Ct. 184, 188 (1995); Pielech v. Massasoit Greyhound, Inc., 47 Mass.App.Ct. 322, 327 (1999). The plaintiff's petition, nevertheless, attempts, impermissibly, to circumvent the appeal period, as it raises issues kno... COMMONWEALTH v. James R. SALVI. , Mass.App.Ct., November 20, 2009 By the Court (TRAINOR, BROWN & WOLOHOJIAN, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 Under the Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979), standard, there was insufficient evidence of joint venture for this case to reach the jury. It was error for the trial judge to deny the defendant's motion for a required finding of not guilty, insofar as it related to the charge of possession with intent to distribute cocaine. Accordingly, we reverse the conviction of possession with in... COMMONWEALTH v. Betzaida MORALES. , Mass.App.Ct., November 20, 2009 By the Court (BERRY, KAFKER & GRAINGER, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 A Superior Court jury found the defendant guilty of trafficking in cocaine in excess of twenty-eight grams, G.L. c. 94C, § 32E(b )(2). The trial judge subsequently sentenced the defendant to the mandatory minimum term of five years. The defendant appeals from her conviction, arguing that the trial judge erred in (i) admitting drug certificates in evidence without live testimony in violation of the defendan... William H. SORKPOR v. ASSISTANT DISTRICT ATTORNEY. , Mass.App.Ct., November 20, 2009 By the Court (CYPHER, BROWN & TRAINOR, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 The plaintiff filed a civil complaint alleging wrongful arrest, which a Superior Court judge dismissed. Though the plaintiff filed a timely notice of appeal, this court refused to docket it because he failed to pay the entry fee within the ten days mandated by Mass.R.A.P. 10(a)(1), as amended, 435 Mass. 1601 (2001). The Superior Court issued the notice of assembly of record on appeal on July 11, 2007, and t... COMMONWEALTH v. Eddie CAMACHO. , Mass.App.Ct., November 20, 2009 By the Court (McHUGH, VUONO & MEADE, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 After a jury trial, the defendant was found guilty of distribution of cocaine in violation of G.L. c. 94C, § 32A(c ), and of doing so in a school zone in violation of G.L. c. 94C, § 32J. On appeal, the defendant claims that: (1) there was insufficient evidence to establish that he was a joint venturer, (2) a drug certificate of analysis was admitted in evidence in violation of the Sixth Amendment's confrontat... COMMONWEALTH v. Abram ACEVEDO. , Mass., November 20, 2009 Practice, Criminal, Motion to suppress. Pamela Lindmark for the defendant. Fawn D. Balliro Andersen, Assistant District Attorney, for the Commonwealth. RESCRIPT. The defendant was convicted of unarmed robbery. G.L. c. 265, § 19 (b ). His only claim on appeal is that, before trial, a judge in the Superior Court erred in denying his motion to suppress evidence--including an identification of the defendant made by the victim--obtained after he was stopped by police on the afternoon of... Barry H. SPENCER, JR. v. SUPERIOR COURT FOR SUFFOLK COUNTY , Mass., November 20, 2009 Supreme Judicial Court, Appeal from order of single justice. Mandamus. Moot Question. Practice, Criminal, Transcript of hearing. Appeals Court, Appeal from order of single justice. The case was submitted on briefs. Barry H. Spencer, Jr., pro se. Joseph M. Ditkoff, Assistant District Attorney, for the defendant. RESCRIPT. Barry H. Spencer, Jr., the defendant in two underlying criminal cases, filed a petition in the county court seeking relief in the nature of mandamus, pursuant to... COMMONWEALTH v. Maurice FELDER. , Mass., November 20, 2009 Homicide. Practice, Criminal, Capital case, Discovery, Argument by prosecutor, Instructions to jury. Evidence, Photograph. INDICTMENTS found and returned in the Superior Court Department on March 29, 2005. The cases were tried before Cornelius J. Moriarty, J. Stephen Paul Maidman for the defendant. Thomas H. Townsend, Assistant District Attorney, for the Commonwealth. Present: Marshall, C.J., Ireland, Spina, Botsford, & Gants, JJ. IRELAND, J. On February 26, 2007, a jury c... COMMONWEALTH v. Jose GOMES. , Mass.App.Ct., November 20, 2009 Constitutional Law, Search and seizure, Reasonable suspicion, Investigatory stop. Search and Seizure, Threshold police inquiry, Reasonable suspicion. Practice, Criminal, Motion to suppress. COMPLAINT received and sworn to in the New Bedford Division of the District Court Department on May 24, 2006. A pretrial motion to suppress evidence was heard by Therese M. Wright, J., and the case was tried before Joan E. Lynch, J. Christine K. Tramontana for the defendant. Kristen L. Spooner, As... Michael F. O'CONNELL and Nancy E. O'Connell, Plaintiffs, v. Patrick J. KNIGHT and Nissa R. Knight, Defendants. , Mass.Land Ct., November 19, 2009 DECISION ALEXANDER H. SANDS, III, Justice. Plaintiffs Michael F. O'Connell ("O'Connell") and Nancy E. O'Connell (together, "Plaintiffs") filed their unverified Complaint on July 13, 2007, pursuant to G.L. c. 231A, § 1, alleging an actual controversy between them and Defendants Patrick J. Knight and Nissa R. Knight relative to the ownership of a small strip of land between the properties owned by Plaintiffs ("Plaintiff Property") and Defendants ("Defendant Property"). Defendants filed their A... Michael F. O'CONNELL and Nancy E. O'Connell, Plaintiffs, v. Patrick J. KNIGHT and Nissa R. Knight, Defendants. , Mass.Land Ct., November 19, 2009 JUDGMENT SANDS, J. Plaintiffs Michael F. O'Connell ("O'Connell") and Nancy E. O'Connell (together, "Plaintiffs") filed their unverified Complaint on July 13, 2007, pursuant to G.L. c. 231A, § 1, alleging an actual controversy between them and Defendants Patrick J. Knight and Nissa R. Knight relative to the ownership of a small strip of land between the properties owned by Plaintiffs ("Plaintiff Property") and Defendants ("Defendant Property"). Defendants filed their Answer on August 8, 2007.... Michael E. HAMILTON [FN1]FN1. Individually and as assignee of Christopher Matczak. v. HANOVER INSURANCE COMPANY & another. [FN2]FN2. DEA-Fraser Insurance Agency, Inc. , Mass.App.Ct., November 19, 2009 By the Court (McHUGH, COHEN & SIKORA, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 The plaintiff, who was injured in an automobile accident, secured a judgment against the responsible party, Christopher Matczak, in excess of the $20,000 limit of Matczak's personal automobile liability insurance policy. Thereafter, the plaintiff, individually and as Matczak's assignee, brought this action against the defendants, Hanover Insurance Company (Hanover) and DEA- Fraser Insurance Agency, Inc. (DEA... ESTATE OF Phyllis JOHNSON, & others [FN1]FN1. Melrose Associates Limited Partnership (Melrose), Lorene Johnson, as trustee, David Johnson, Cindy Johnson, James Johnson, Eileen Witkowski, as she is executrix of the estate of Frederick Witkowski, and , Mass.App.Ct., November 19, 2009 By the Court (McHUGH, VUONO & MEADE, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 Pursuant to Mass.R.Civ.P. 23.1, 365 Mass. 768 (1974), the estate of Phyllis Johnson (estate) brought this derivative partnership action in Superior Court against the defendants. Several additional plaintiffs were joined under Mass.R.Civ.P. 19(a), 365 Mass. 765 (1974). The suit sought monetary and equitable relief from the defendants, Melvin Rose, Inc. (MRI), the general partner, and Norampac Thompson, Ltd. (N... COMMONWEALTH v. Chad R. STARR. , Mass.App.Ct., November 19, 2009 By the Court (COHEN, BROWN & MILLS, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 After a jury-waived trial, the defendant was convicted of (1) trafficking in morphine (28 to 100 grams), G.L. c. 94C, § 32E(c )(2); (2) possession of a class A substance with the intent to distribute, G.L. c. 94C, § 32(a ); (3) possession of a class C substance with intent to distribute, G.L. c. 94C, § 32B(a ); and (4) possession of hypodermic needles or syringes, G.L. c. 94C, § 27(a ). [FN1] We affirm. ... COMMONWEALTH v. John L. LYNCH. , Mass.App.Ct., November 19, 2009 By the Court (COHEN, BROWN & MILLS, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 The defendant's arguments pressed on appeal from his conviction of open and gross lewdness are unavailing. The circumstances of the case are controlled in material respects by the teaching of Commonwealth v. Poillucci, 46 Mass.App.Ct. 300, 303-304 (1999). Viewing the entire scenario, the fact finder, here the judge, could fairly conclude that there was sufficient evidence of the victim's shock or alarm to supp... COMMONWEALTH v. Joseph HINES. , Mass.App.Ct., November 19, 2009 By the Court (COHEN, BROWN & MILLS, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 Nothing has been made to appear that would cause us to reverse the defendant's convictions of the offenses arising out of the events occurring on September 5, 2006, in Hyannis. Nor do we think defense counsel's performance constituted ineffective assistance within the meaning of Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Accordingly, we treat the defendant's claims of error in summary fashion, for t... COMMONWEALTH v. Richard GILLIS. , Mass.App.Ct., November 19, 2009 By the Court (KAFKER, KATZMANN & RUBIN, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 The defendant, Richard Gillis, appeals the denial of his motion to withdraw his guilty plea. He alleges that the plea colloquy was inadequate to insure that his plea was made voluntarily. The voluntariness of a plea must be demonstrated affirmatively on the record at the time the judge accepts a defendant's plea. Boykin v. Alabama, 395 U.S. 238, 242-244 (1969). Commonwealth v. Foster, 368 Mass. 100, 102... COMMONWEALTH v. Wayne CHAPMAN. , Mass.App.Ct., November 19, 2009 By the Court (McHUGH, COHEN & SIKORA, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 Wayne Chapman appeals from a judgment adjudicating him a sexually dangerous person. See G.L. c. 123A, §§ 1 & 14. At his jury-waived trial, there was no disagreement that he suffers from pedophilia. [FN1] At issue was whether he remains predisposed to act upon it and is "likely" to engage in sexual offenses, given his age and physical condition. FN1. It is undisputed that Chapman sexually molested mor... Hannah BODKINS v. James TEWHEY. , Mass.App.Ct., November 19, 2009 By the Court (KAFKER, KATZMANN & RUBIN, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 The defendant, James Tewhey, appeals from the denial of his motion to set aside a default judgment under Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974). Background. The plaintiff, Hannah Bodkins, filed a complaint in the Superior Court against the defendant for legal malpractice, arising from the defendant's representation of the plaintiff in her divorce. On February 5, 2008, a Middlesex County deputy sherif... ADOPTION OF ARIZONA. [FN1]FN1. A pseudonym. , Mass.App.Ct., November 19, 2009 By the Court (KAFKER, KATZMANN & RUBIN, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 This is an appeal by the mother from a decree of the Boston Juvenile Court finding her child in need of care and protection and terminating her parental rights under G.L.c. 210, § 3. The mother argues first that the Juvenile Court judge violated her rights to due process. The mother concedes that on August 15, 2008, after the court's first hearing in this matter, she received in hand a summons notifying al... PRESTIGE IMPORTS, INC., & others [FN1]v. SOUTH WEYMOUTH SAVINGS BANK. FN1. Helmut Schmidt and Renate Schmidt. , Mass.App.Ct., November 19, 2009 Practice, Civil, Summary judgment, Judicial discretion, Review of interlocutory action. Bank. Uniform Commercial Code, Bank, Defenses, Good faith, Notice. Negotiable Instruments, Defenses, Holder in due course. Negligence, Bank, In cashing check. Fraud. Fiduciary. Words, "Notice," "Knowledge." CIVIL ACTION commenced in the Superior Court Department on February 1, 1991. The case was heard by Elizabeth Butler, J., on renewed motions for partial summary judgment, and entry of separate and fin... BANK OF AMERICA, N.A. [FN1]v. PRESTIGE IMPORTS, INC., & others. [FN2]FN1. The original plaintiff in this action was South Shore Bank. A motion to substitute Bank of America, N.A., was allowed in this court. Throughout our decision, we will refer to , Mass.App.Ct., November 19, 2009 Bank. Uniform Commercial Code, Bank, Good faith. Negligence, Bank, In cashing check. Practice, Civil, Instructions to jury, Summary judgment. Negotiable Instruments, Payment. Consumer Protection Act, Bank, Unfair or deceptive act. Contract, Performance and breach. CIVIL ACTION commenced in the Superior Court Department on February 1, 1991. Motions for summary judgment were considered by Elizabeth Butler, J., and the case was tried on a bifurcated basis by Paul A. Chernoff, J., one trial to... COMMONWEALTH v. Eric SHAUGHESSY. [FN1]FN1. As is our practice, we spell the defendant's name as it appears in the indictment. See, e.g., Commonwealth v. Perez, 444 Mass. 143, 143 n. 1, 825 N.E.2d 1040 (2005). , Mass., November 19, 2009 Privileged Communication. Practice, Criminal, Disclosure of identity of informer, Affidavit, Waiver, Attorney's fees. CIVIL ACTION commenced in the Supreme Judicial Court for the county of Suffolk on February 2, 2009. The case was reported by Spina, J. Mary E. Lee, Assistant District Attorney, for the Commonwealth. Michael B. Galvin (Thomas J. Carey, Jr., with him) for the defendant. Peter B. Krupp, for Committee for Public Counsel Services & others, amici curiae, submitted a brie... Paul A. ANASTASIO, Plaintiff, v. Barbara NAWROCKI, Defendant. , Mass.Land Ct., November 18, 2009 DECISION KEITH C. LONG, Justice. Introduction This case arises from the late Freda (Bond) Bunker's July 30, 1981 transfer of land from herself individually to the Freda R. (Bond) Bunker Trust (the "Trust") and an alleged mistake in the description of the land being transferred. Deed from Freda B. Bunker/ a/k/a Freida B. Bunker to Richard A. Meaney, as Trustee of the Freda R. (Bond) Bunker Trust (July 30, 1981), recorded in the Barnstable Registry of Deeds at Book 3341, Page 162 (Trial Ex. 6). ... Rebecca SCAGLIONE v. Carl VITELLO. , Mass.App.Ct., November 18, 2009 By the Court (KAFKER, KATZMANN & RUBIN, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 On September 11, 2006, pursuant to G.L. c. 209A, the plaintiff, Rebecca Scaglione, obtained an ex parte abuse prevention order against her former boyfriend of ten months, the defendant, Carl Vitello. She averred by supporting affidavit (emphases supplied): "On or about 9/9/2006, the Defendant Carl Vitello and I had an argument and I asked him to leave my residence and not come back. Carl would not leav... NORTH CHELMSFORD WATER DISTRICT v. DEPARTMENT OF PUBLIC WORKS OF CHELMSFORD & another. [FN1]FN1. Chelmsford zoning board of appeals. , Mass.App.Ct., November 18, 2009 By the Court (KANTROWITZ, SMITH & GRAHAM, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 A judge in the Land Court allowed the defendants' motion for summary judgment, ruling that the plaintiff's appeal to the Land Court was untimely. The plaintiff appeals. We affirm. The plaintiff is the water district, the chairman of which was dissatisfied with the department of public works's installation of a tank for "emulsified asphalt" on the locus, which is in an aquifer protection district. The ... Wayne KURKER & another [FN1]FN1. Margaret Kurker. v. Stefan SEIDNER & another. [FN2]FN2. Cynthia Seidner. , Mass.App.Ct., November 18, 2009 By the Court (KANTROWITZ, SMITH & GRAHAM, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 After the plaintiffs filed a motion for final judgment, the defendants requested the relocation of a driveway easement pursuant to M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87, 93 (2004). The judge denied the request, ruling that the M.P.M. case only applied to granted easements, not, as here, a prescriptive easement. As the defendants argue on appeal, Trenz v. Norwell, 68 Mass.App.Ct. 271, 280 (2007), au... COMMONWEALTH v. Hector UCETA. , Mass.App.Ct., November 18, 2009 By the Court (KANTROWITZ, SMITH & GRAHAM, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 The defendant was charged with one count of assault and battery, G.L. c. 265, § 13A, and one count of indecent assault and battery on a person fourteen years of age or over, G.L. c. 265, § 13H. After a bench trial, he was acquitted on the first count, convicted on the second. On appeal, the defendant argues that the Commonwealth failed to produce sufficient evidence regarding the essential element of lac... COMMONWEALTH v. Ronald STEPHENS. , Mass.App.Ct., November 18, 2009 By the Court (KAFKER, KATZMANN & RUBIN, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 The defendant, Ronald Stephens, filed a motion pursuant to G.L. c. 276, § 100C, seeking to seal records relating to the nolle prosequi of indictment MICR-1992-667 (the 1992 charges). A Superior Court judge denied the motion, and the defendant appeals. Background. On April 28, 1992, the defendant was indicted for masked armed robbery (eleven counts), unlawful possession of a firearm, and receiving a stol... Gary CHAMBERLAIN v. Kurt NUISSL, trustee, [FN1] & another. [FN2]FN1. Of the Brothers Realty Trust. FN2. Gunter Nuissl, trustee of the Brothers Realty Trust. , Mass.App.Ct., November 18, 2009 By the Court (LENK, KANTROWITZ & HANLON, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 This is the second appearance of this case before this court. See Chamberlain v. Nuissl, 71 Mass.App.Ct. 1101 (2007). In our first review, we affirmed the trial court's award of specific performance on the purchase and sale of a condominium and attorney's fees for Chamberlain, but remanded on the issue of damages under G.L. c. 93A. On remand, the trial court awarded Chamberlain damages totaling $99,872.9... Adam BARTLETT v. Megan M. BARTLETT. , Mass.App.Ct., November 18, 2009 By the Court (KAFKER, KATZMANN & RUBIN, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 At issue in this appeal are two G.L. c. 209A abuse prevention orders. The appellant is the former husband. The former wife successfully sought c. 209A relief on behalf of herself and the couple's child. The initial c. 209A orders were issued on December 9, 2008, and, after a hearing with both parties present, were extended on December 15, 2008. The order regarding the wife was extended until December 15, 2... BANK OF AMERICA, N.A., & another, [FN1] trustees [FN2]v. W. Bruce DUDLEY & others. [FN3]FN1. Bradley R. Cook. FN2. Of The Esther Eberstadt Baldwin Trust--1974.FN3. Faye A. Dudley, B. Dane Dudley, Kathryn Harrington, Christine D. Gilbert, Kevi, Mass., November 18, 2009 Trust, Reformation. Taxation, Trust. Mark E. Swirbalus & Leiha Macauley, for the plaintiffs, submitted a brief. RESCRIPT. The trustees of The Esther Eberstadt Baldwin Trust--1974 commenced this action in the Probate and Family Court seeking reformation of the trust to authorize division of the trust into two subtrusts in order to minimize Federal generation skipping transfer (GST) taxes. The defendants are certain named beneficiaries, who have all assented to the proposed reformation, ... COMMONWEALTH v. Eric J. KNIGHT. , Mass.App.Ct., November 18, 2009 Practice, Criminal, Instructions to jury. Arrest. Resisting Arrest. Constitutional Law, Search and seizure. Search and Seizure, Arrest. COMPLAINT received and sworn to in the Dorchester Division of the Boston Municipal Court Department on July 21, 2006. The case was tried before E. Sydney Hanlon, J. Christie M. Charles for the defendant. Elisabeth Kosterlitz, Assistant District Attorney, for the Commonwealth. Present: McHugh, Vuono, & Meade, JJ. MEADE, J. After a jury tria... COMMONWEALTH v. Ami H. PERRY. , Mass., November 18, 2009 Dangerous Weapon. Practice, Criminal, Required finding. Words, "Blackjack." Thomas J. Chirokas for the defendant. Michael J. Markoff, Special Assistant District Attorney, for the Commonwealth. RESCRIPT. After investigating a report of an assault, police detectives effectuated a warrantless arrest of the defendant, Ami H. Perry. He subsequently was charged with assault and battery by means of a dangerous weapon (a pencil), in violation of G.L. c. 265, § 15A (a ), and violation of a l... Ellen DAMI-HEARL v. CITY OF NORTH ADAMS. , Mass.App.Ct., November 17, 2009 By the Court (LENK, KAFKER & RUBIN, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 In August of 2004, while walking and "visiting gravesites" in Southview Cemetery, a property owned and operated by the city of North Adams (city), the plaintiff fell into a pothole and was injured. She filed an action under the Massachusetts Tort Claims Act, G.L. c. 258, alleging the city was negligent in failing to repair the pothole in which she fell. The city's subsequent motion for summary judgment was gra... Michael A. MAYNARD v. Lisa STOCKBERGER. , Mass.App.Ct., November 17, 2009 By the Court (GRASSO, FECTEAU & HANLON, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 The parties cross-appeal from a judgment of divorce entered in the Probate and Family Court. The husband also appeals from the allowance of the late filing of the wife's notice of appeal by a single justice of this court. On the merits, the husband argues that the judge should have ordered the wife to pay him alimony. The wife claims that the judge's property division award was unfair. We affirm. A. Lat... COMMONWEALTH v. Craig A. PICKERING. , Mass.App.Ct., November 17, 2009 By the Court (KANTROWITZ, SMITH & GRAHAM, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 On May 29, 2008, after a probation revocation hearing, a District Court judge revoked the defendant's probation. On appeal, the defendant claims that there was insufficient evidence to find that he violated the terms and conditions of his probation, and that the judge committed reversible error because he based his finding of violation solely on unreliable, unsubstantiated hearsay. We affirm. 1. Backg... COMMONWEALTH v. Ernest MARSHALL. , Mass.App.Ct., November 17, 2009 By the Court (GRASSO, FECTEAU & HANLON, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 The defendant appeals from his conviction, following a bench trial in the District Court, of three weapons violations and one drug offense: unlawful possession of a firearm, under the provisions of G.L. c. 269, § 10(a ); unlawful possession of ammunition, G.L. c. 269, § 10(h ); carrying a loaded firearm, G.L. c. 269, § 10(n ); and possession of marijuana, G.L. c. 94C, § 34. On appeal, he contends that the ... COMMONWEALTH v. David JORDAN. , Mass.App.Ct., November 17, 2009 By the Court (GREEN, GRAHAM & FECTEAU, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 The defendant appeals from his conviction as a youthful offender of unlawful possession of a firearm, G.L. c. 269, § 10(a ). [FN1] He makes three arguments on appeal: (1) the judge erroneously refused to declare a mistrial or otherwise cure misstatements the prosecutor made during his closing argument, (2) the judge abused his discretion in allowing the Commonwealth to call a witness who had not been listed... COMMONWEALTH. v. Paul ALEBORD. , Mass.App.Ct., November 17, 2009 By the Court (KANTROWITZ, SMITH & GRAHAM, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 On January 10, 1980, the defendant, Paul Alebord, [FN1] pleaded guilty to armed robbery, and was sentenced to a term of imprisonment of not more than six years, and not less than four years, with a stay of execution for six months. The defendant then defaulted, and a capias issued. Five years later, he was brought before the court, and the sentence was ordered to be executed. On July 28, 2008, the pro se... ADOPTION OF BODE. [FN1]FN1. A pseudonym. , Mass.App.Ct., November 17, 2009 By the Court (KANTROWITZ, SMITH & GRAHAM, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 The mother appeals from a decree of the Juvenile Court terminating her right to consent to the adoption of her son, Bode. G .L. c. 210, § 3. On appeal, the mother claims that the evidence at trial did not support the judge's conclusion that she is unfit to raise her child. She also argues that the judge erred in determining that the adoption plan proposed by the Department of Children and Families (depar... COMMONWEALTH v. Daniel C. HOLLISTER. , Mass.App.Ct., November 17, 2009 Constitutional Law, Confrontation of witnesses. Practice, Criminal, Confrontation of witnesses. Firearms. Evidence, Ballistician's certificate. COMPLAINT received and sworn to in the Greenfield Division of the District Court Department on October 12, 2007. The case was heard by W. Michael Goggins, J. Lisa M. Kavanaugh, Committee for Public Counsel Services, for the defendant. Judith Ellen Pietras, Assistant District Attorney, for the Commonwealth. Present: Kafker, Dreben, & Woloh... Leah DANIELS v. COMMONWEALTH. , Mass., November 17, 2009 Supreme Judicial Court, Appeal from order of single justice. Practice, Criminal, Double jeopardy, Required finding. Armed Assault with Intent to Murder. Mayhem. Assault and Battery by Means of a Dangerous Weapon. Self- Defense. Willie J. Davis for the petitioner. Macy Lee, Assistant District Attorney, for the Commonwealth. RESCRIPT. Leah Daniels appeals from a judgment of a single justice of this court denying her petition for relief pursuant to G.L. c. 211, § 3. We affirm. Followin... 90 EXCHANGE LLC by its managing member, Jonathan BEDARD, Plaintiff, v. MAYO GROUP DEVELOPMENT, LLC and John Timothy Phelan, Richard J. Ford, Paul T. Crowley, Loretta Cuffe-O'Donnell, Charles T. O'Brien, Wayne A. Lozzi, William R. Trahant, Jr., Darr, Mass.Land Ct., November 16, 2009 JUDGMENT SANDS, J. Plaintiff 90 Exchange LLC, through its Manager Jonathan Bedard ("Bedard"), filed its Verified Complaint with the Essex Superior Court (Civil Action No. 7-2194) on November 16, 2007, appealing pursuant to G.L. c. 40A, § 17, a decision of Defendant City Council of the City of Lynn (the "City Council") granting an amendment to a pre-existing special permit. [FN1] The City Council filed its Answer and Jury Demand on December 5, 2007. [FN2] This case was transferred to the Per... 90 EXCHANGE LLC by its Managing Member, Jonathan BEDARD, Plaintiff, v. MAYO GROUP DEVELOPMENT, LLC and John Timothy Phelan, Richard J. Ford, Paul T. Crowley, Loretta Cuffe-O'Donnell, Charles T. O'Brien, Wayne A. Lozzi, William R. Trahant, Jr., Darr, Mass.Land Ct., November 16, 2009 DECISION ALEXANDER H. SANDS, III, Justice. Plaintiff 90 Exchange LLC, through its Manager Jonathan Bedard ("Bedard"), filed its Verified Complaint with the Essex Superior Court (Civil Action No. 7-2194) on November 16, 2007, appealing pursuant to G.L. c. 40A, § 17, a decision of Defendant City Council of the City of Lynn (the "City Council") granting an amendment to a pre-existing special permit. [FN1] The City Council filed its Answer and Jury Demand on December 5, 2007. [FN2] This case wa... LaSALLE BANK NATIONAL ASSOCIATION, as Trustee for the Registered Holders of Structured Asset Securities Corporation, Structured Asset Investment Loan Trust, Mortgage Pass-Through Certificates Series 2004-8, Plaintiff v. John O'SULLIVAN and Capital , Mass.Land Ct., November 16, 2009 DECISION CHARLES W. TROMBLY, JR., Justice. Plaintiff, LaSalle Bank National Association, as Trustee for the Registered Holders of Structured Asset Securities Corporation, Structured Asset Investment Loan Trust, Mortgage Pass-Through Certificates, Series 2004-8, commenced this case on January 14, 2008, seeking to remove a cloud on title, pursuant to G.L. c. 240, §§ 6-10, from a parcel of real property, known as and numbered 279 Common Street in Quincy, owned of record by Defendant John O'Sulli... LaSALLE BANK NATIONAL ASSOCIATION, as Trustee for the Registered Holders of Structured Asset Securities Corporation, Structured Asset Investment Loan Trust, Mortgage Pass-Through Certificates Series 2004-8, Plaintiff v. John O'SULLIVAN and Capital , Mass.Land Ct., November 16, 2009 JUDGMENT [FN1] FN1. If not specifically defined herein, each term carries the same definition employed in the Decision. TROMBLY, J. Plaintiff, LaSalle Bank National Association, as Trustee for the Registered Holders of Structured Asset Securities Corporation, Structured Asset Investment Loan Trust, Mortgage Pass-Through Certificates, Series 2004-8, commenced this case on January 14, 2008, seeking to remove a cloud on title, pursuant to G.L. c. 240, §§ 6-10, from a parcel of real property,... COMMONWEALTH v. Thomas D. YOUNG. , Mass.App.Ct., November 16, 2009 By the Court (BERRY, KAFKER & GRAINGER, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 The defendant was convicted of carrying a firearm, possession of ammunition, and carrying a loaded firearm. On appeal, he claims that the judge erred in denying his motion to suppress evidence obtained from a search of his person and vehicle. We affirm. 1. Background. The following facts are taken from the trial court judge's decision on the motion to suppress. Officer Pistolese stopped the defendant's ... COMMONWEALTH v. Jason R. FONTANA. , Mass.App.Ct., November 16, 2009 By the Court (COHEN, BROWN & MILLS, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 The defendant was charged with operating under the influence (OUI), third offense, G.L. c. 90, § 24, and the unlawful possession of a class E controlled substance, G.L. c. 94C, § 34. The defendant pleaded guilty to the unlawful possession charge and was convicted by a jury on the OUI charge. He waived his right to a jury trial on the subsequent offender portion of the OUI charge, and the trial judge allowed hi... COMMONWEALTH v. Jomar BENZAN. , Mass.App.Ct., November 16, 2009 By the Court (GRASSO, FECTEAU & HANLON, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 A jury found the defendant guilty of armed assault with intent to murder (three indictments), intimidation of a witness, and conspiracy. On appeal from those convictions, the defendant argues that (1) limitations on impeachment imposed by the trial judge violated his right to confront and cross-examine the witnesses against him and (2) introduction of prior bad acts gave rise to a substantial risk of a mis... George BARKAS v. PREMIER INSURANCE COMPANY. , Mass.App.Div., November 13, 2009 In the Worcester Division, Docket No. 0762-CV-0348, Gardner, J. Paul J. Franco, Esq., Daniel E. Shanahan, Esq., Law Offices of Joseph J. Cariglia, Worcester, MA, for plaintiff. Carey H. Smith, Esq., Morrison Mahoney, LLP, Worcester, MA, for defendant. Before LOCONTO, P.J., BRENNAN & RUTBERG, JJ. OPINION LOCONTO, P.J. When the insurer denied his Personal Injury Protection ("PIP") benefits claim for lost wages, the plaintiff brought this action for breach of contract. After a bench ... Christine ANDERSON v. HAMEL, WICKENS & TROUPE FUNERAL HOME, INC., & others [FN1] (and twenty-two companion cases [FN2]). FN1. Bayview Crematory, LLC; Cremation Society, Inc.; and Linda Stokes, trustee of the Dekes Realty Trust of 107 Broad, Mass.App.Ct., November 13, 2009 By the Court (McHUGH, BROWN & VUONO, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 The plaintiffs in these consolidated cases are the spouses, relatives, and representatives of deceased persons (the decedents) whose bodies were cremated by the defendant crematory, Bayview Crematory, LLC (Bayview). Arrangements for the cremations were made by the defendant funeral homes, Hamel, Wickens & Troupe Funeral Home, Inc. (Hamel); the Cremation Society, Inc.; or Commonwealth Cremation & Shipping Serv... COMMONWEALTH v. Leslie Bin LI. , Mass.App.Ct., November 13, 2009 By the Court (DUFFLY, MILLS & MEADE, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 The defendant appeals from his convictions of distributing a class D substance (marijuana) and conspiring to violate the controlled substance laws. The District Court judge, sitting without a jury, denied the defendant's motion for a required finding of not guilty. In the wake of the decision in Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009), we invited the defendant and the Commonwealth to file supple... COMMONWEALTH v. Corey BONNER. , Mass.App.Ct., November 13, 2009 By the Court (TRAINOR, BROWN & WOLOHOJIAN, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 We are constrained to reverse the judgment and set aside the verdict on the indictment charging the defendant with possession of cocaine with the intent to distribute. The defendant may be retried if the Commonwealth wishes to do so. See Kater v. Commonwealth, 421 Mass. 17, 18 (1995). Under Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009), the Commonwealth's admission of drug analysis certificates ... COMMONWEALTH v. Kenneth W. DEROCHE. , Mass.App.Ct., November 13, 2009 By the Court (KATZMANN, SMITH & VUONO, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 The defendant was convicted by a District Court jury of assault and battery. On appeal, he contends that the judge erred in failing to give his proposed instruction on self-defense. In particular, the defendant claims that he was entitled to a "castle law" instruction. See G.L. c. 278, § 8A. [FN1] We affirm. FN1.General Laws c. 278, § 8A, inserted by St.1981, c. 696, provides as follows: "In the pr... COMMONWEALTH v. Edward W. CHAPIN. , Mass.App.Ct., November 13, 2009 By the Court (TRAINOR, BROWN & WOLOHOJIAN, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 After a bench trial, the defendant was convicted, pursuant to G.L. c. 265, § 13A(a ), of assault and battery. The conviction arose from the defendant's conduct during a February 3, 2008, incident involving his then girl friend, Tammy Johnson, and her ward, in front of a store in Greenfield. At trial, the two sides presented different characterizations of the event. The Commonwealth sought to prove that ... COMMONWEALTH v. Victor DAVILA. , Mass.App.Ct., November 13, 2009 By the Court (BERRY, GRAINGER & WOLOHOJIAN, JJ). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 The defendant appeals from the denial of his motion to withdraw pleas made in 1983 to various charges, including second degree murder. The defendant filed two earlier motions to withdraw his pleas, and on both previous occasions, when represented by counsel, he did not press the motions. On this third occasion, he proceeds pro se and argues that his plea was not voluntary and intelligent because he did ... Paul L. MUCKLE v. COMMONWEALTH. , Mass., November 13, 2009 Supreme Judicial Court, Superintendence of inferior courts, Appeal from order of single justice. Paul L. Muckle, pro se. RESCRIPT. Paul L. Muckle appeals from a judgment of a single justice of this court denying his petition for relief under G.L. c. 211, § 3. We affirm. Muckle seeks relief from a preliminary injunction issued in a civil action in the Housing Court. He also appears to be challenging other interlocutory rulings in that case and in a criminal case arising from the same... NORFOLK FINANCIAL CORPORATION v. Nadine MAZARD. , Mass.App.Div., November 12, 2009 In the Eastern Hampshire Division, Docket No. 0598-CV-0324, Kumor, J. Trisha Kazan, Esq., Uxbridge, MA, for plaintiff. Nadine C. Mazard, Esq., Mazard Law Group, Amherst, MA, for defendant. Before LoCONTO, P.J., BRENNAN & COTE, [FN1] JJ. FN1. Justice Kenneth M. Cote participated in the hearing of this case, but did not participate in this opinion. OPINION BRENNAN, J. Norfolk Financial Corporation ("Norfolk") brought this collection action against Nadine Mazard ("Mazard") in... Alfredo TRINIDAD v. PILGRIM INSURANCE COMPANY. , Mass.App.Div., November 12, 2009 In the Fitchburg Division, Docket No. 0816-CV-0528, Zide, J. James N. Ellis, Esq., Ellis & Associates Law Office, Worcester, MA, Charles E. Berg, Esq., Law Offices, So. Easton, MA, for plaintiff. Joseph R. Ciollo, Esq., McGovem & Ganem, Boston, MA, for defendant. Before LOCONTO, P.J., BRENNAN & RUTBERG, JJ. OPINION LOCONTO, P.J. This is a Dist./Mun. Cts. R.A.D.A. 8C appeal on the record of proceedings by the plaintiff of the allowance of the defendant's Mass. R. Civ. P. 56 motion... Robert E. MARHEFKA and Linda Marhefka, Plaintiffs, v. ZONING BOARD OF APPEALS OF the TOWN OF SUTTON, Arthur Keown, Richard Deschenes, Jeffrey Fenuccio, Gerald Page, Russell Sylvia, as they are members of the Town of Sutton Zoning Board of Appeals, , Mass.Land Ct., November 12, 2009 JUDGMENT SANDS, J. Plaintiffs filed their unverified Complaint on December 5, 2007, appealing a decision of Defendant Sutton Zoning Board of Appeals ("ZBA") which granted a dimensional variance (the "Variance") to Defendants Roseanne LaBarre and John Scott ("LaBarre/Scott"). A case management conference was held on February 26, 2008. LaBarre/Scott filed their Answer on March 5, 2008. On July 17, 2008, LaBarre/Scott filed their Motion for Summary Judgment, together with supporting memorandu... Robert E. MARHEFKA and Linda Marhefka, Plaintiffs, v. ZONING BOARD OF APPEALS OF the TOWN OF SUTTON, Arthur Keown, Richard Deschenes, Jeffrey Fenuccio, Gerald Page, Russell Sylvia, as they are members of the Town of Sutton Zoning Board of Appeals, , Mass.Land Ct., November 12, 2009 DECISION ALEXANDER H. SANDS, III, Justice. Plaintiffs filed their unverified Complaint on December 5, 2007, appealing a decision of Defendant Sutton Zoning Board of Appeals ("ZBA") which granted a dimensional variance (the "Variance") to Defendants Roseanne LaBarre and John Scott ("LaBarre/Scott"). A case management conference was held on February 26, 2008. LaBarre/Scott filed their Answer on March 5, 2008. On July 17, 2008, LaBarre/Scott filed their Motion for Summary Judgment, together w... Anna Christina WOLFE v. Gerald P. ATKINS, Sr., trustee. [FN1]FN1. Of the 21st Century Real Estate Trust. , Mass.App.Ct., November 12, 2009 By the Court (BERRY, GRAINGER & WOLOHOJIAN, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 Wolfe, a residential landowner in Brookline, brought suit seeking a prescriptive easement over Atkins's abutting commercial property. The evidence showed that for approximately twenty-six years, Wolfe, members of her family, and certain other neighbors had crossed over the property as a shortcut to get to Washington Street and Brookline Village before Atkins purchased it. After a bench trial, the Land ... COMMONWEALTH v. Barry SPENCER, Jr. , Mass.App.Ct., November 12, 2009 By the Court (TRAINOR, BROWN & WOLOHOJIAN, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 Nothing has been made to appear that the single justice abused his discretion or otherwise erred in denying the defendant's motion to stay sentence and to compel transcripts. Our review of the record on appeal does not support the defendant's claim that he was prejudiced in his efforts to pursue appellate review or to obtain a new trial. See and compare Commonwealth v. Hudson, 404 Mass. 282, 284-285 (19... COMMONWEALTH v. Todd MOSES. , Mass.App.Ct., November 12, 2009 By the Court (TRAINOR, BROWN & WOLOHOJIAN, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 Upon review of the record, the briefs, and the transcript, and in light of Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009), we are constrained to vacate the defendant's conviction for possession with intent to distribute cocaine, subsequent offense, in violation of G.L. c. 94C, § 32A(c ), and remand for such proceedings as the Commonwealth deems appropriate. Judgment reversed. Verdict set aside... COMMONWEALTH v. Kathleen A. BROWN (and a companion case [FN1]). FN1.Commonwealth vs. John F. O'Brien., Mass.App.Ct., November 12, 2009 By the Court (KAFKER, KATZMANN & RUBIN, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 The defendants, Kathleen A. Brown and John F. O'Brien, were each convicted of trafficking in cocaine weighing more than twenty-eight grams, in violation of G.L. c. 94C, § 32E(b ). Brown was also convicted of possession of a hypodermic instrument in violation of G .L. c. 94C, § 27(a ), [FN2] and O'Brien was convicted of possession of cocaine in violation of G.L. c. 94C, § 34. [FN3] On appeal, they contend t... CACH, LLC v. Tanya STEELE. , Mass.App.Ct., November 12, 2009 By the Court (KAFKER, KATZMANN & RUBIN, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 The defendant, Tanya Steele, appeals from a Superior Court judgment that confirmed an arbitrator's award of $3,899.99 plus statutory interest to Cach, LLC, stemming from a credit card dispute. For the reasons discussed below, we affirm. Background. On February 12, 2003, Steele and Cach, LLC (Cach) entered into a credit card agreement (agreement). According to the agreement, any dispute between the two s... Lee FORT v. COMMONWEALTH. , Mass., November 12, 2009 Supreme Judicial Court, Appeal from order of single justice, Superintendence of inferior courts. The case was submitted on the papers filed, accompanied by a memorandum of law. Lee Fort, pro se. RESCRIPT. The petitioner, Lee Fort, appeals from a judgment of a single justice of this court denying his petition under G.L. c. 211, § 3. We affirm. Fort was convicted of cocaine trafficking and of doing so in a school zone. Prior to his trial he filed a motion to suppress, which was den... Jay Patrick MELLEN v. Thomas F. REILLY. , Mass., November 12, 2009 Supreme Judicial Court, Appeal from order of single justice. Douglas S. Martland, Assistant Attorney General, for the defendant. Jay Patrick Mellen, pro se, submitted a brief. RESCRIPT. The plaintiff filed, in the county court, a "complaint pursuant to MGL 275 Section § 1, Justices keeping public peace; security." [FN1] A single justice denied relief. The plaintiff's submissions, both in the county court and in this court, fail to establish any basis for relief. He does not pro... BULLDOG INVESTORS GENERAL PARTNERSHIP, et al. [FN1]FN1. Opportunity Partners, L. P., Full Value Partners, L.P., Opportunity Income Plus Fund, L.P., Kimball & Winthrop, Inc., Full Value Advisors, LLC, Spar Advisors, LLC, Phillip Goldstein, Steven Samu, Mass.Super., November 11, 2009 FINDINGS OF FACT, RULINGS OF LAW, AND ORDER FOR JUDGMENT JUDITH FABRICANT, Justice. INTRODUCTION This action arises from activities of the Office of the Secretary of the Commonwealth in enforcing Massachusetts securities laws with respect to certain communications regarding hedge funds, particularly a website operated by the group of plaintiffs who will be referred to herein collectively as "Bulldog Investors," or "Bulldog," and associated e-mail communication. The plaintiffs contend that the ... Joanna SULLIVAN v. Charles D. SULLIVAN. , Mass.App.Ct., November 10, 2009 By the Court (KANTROWITZ, SMITH & GRAHAM, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 This is a removal case, decided in the Probate and Family Court. The mother appeals from a judgment dismissing her modification complaint, by which she sought to remove the couple's two children to Georgia, home of her new husband and step-children. On appeal she contends that the judge (1) abused her discretion in finding no real advantage to the mother if she relocated to Georgia; (2) erred in finding ... Joshua A. POWERS v. Victoria L. POWERS. , Mass.App.Ct., November 10, 2009 By the Court (KANTROWITZ, SMITH & GRAHAM, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 After a divorce trial, the judge awarded joint legal custody of the child to both parents and physical custody to the mother, and allowed the mother to remove the child to Florida. The father appeals, challenging the award of physical custody to the mother and the permission to remove the child to Florida. [FN1] In addition, he claims that the judge's findings of fact were not substantiated by the eviden... COMMONWEALTH. v. Christina POOLE. , Mass.App.Ct., November 10, 2009 By the Court (KANTROWITZ, SMITH & GRAHAM, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 Following a jury-waived trial in the District Court, the defendant, Christina Poole, was convicted of operating a motor vehicle while under the influence of intoxicating liquor. On appeal, she claims that the Commonwealth put forth insufficient evidence of her guilt, and the judge therefore should have granted her motion for a required finding of not guilty. We affirm. In reviewing the denial of a mot... COMMONWEALTH v. Claire J. KELLER. , Mass.App.Ct., November 10, 2009 By the Court (LENK, MEADE & FECTEAU, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 After trial by a jury, the defendant was found guilty on July 18, 2007, of trafficking in a controlled substance (cocaine), G.L. c. 94C, § 32E(b ), and unlawful possession of a Class D controlled substance (marijuana), G.L. c. 94C, § 34. On appeal, the defendant claims error in three respects: (1) the admission of drug certificates without accompanying live testimony from the drug analyst violated her right u... COMMONWEALTH v. Joseph HAYES. , Mass.App.Ct., November 10, 2009 By the Court (GRASSO, FECTEAU & HANLON, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 The defendant appeals from his conviction, following a jury trial in the Superior Court, of robbery (G.L. c. 265, § 17). On appeal, he contends that there should be a new trial because the prosecutor's closing argument was tainted by severely prejudicial statements. We affirm. The defendant specifically complains that the prosecutor improperly shifted the burden to the defendant when she argued in favor... COMMONWEALTH v. John GREENSTEIN. , Mass.App.Ct., November 10, 2009 By the Court (KANTROWITZ, SMITH & GRAHAM, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 A District Court judge found the defendant guilty of operating under the influence of drugs, G.L. c. 90, § 24. Thereafter, the defendant pleaded guilty to possession of Class C drugs (Klonopin), G.L. c. 94C, § 34. That matter was continued without a finding, and was later dismissed. He appeals from the conviction of operating under the influence of drugs, claiming that the trial judge erred in not granti... Mark A. LOWERY, voluntary administrator, [FN1]v. Michael RESCA & another. [FN2]FN1. Of the estate of Billy Joe Lowery. FN2. John Cronin. , Mass.App.Ct., November 10, 2009 Commonwealth, Claim against. Jurisdiction, Claim against Commonwealth, Superior Court. Superior Court, Jurisdiction. Practice, Civil, Transfer of action to Superior Court. Chief Justice for Administration and Management. CIVIL ACTION commenced in the Suffolk Division of the Probate and Family Court Department on October 5, 2007. A motion to dismiss was heard by E. Chouteau Merrill, J. Mark A. Lowery, pro se. Joyce Koo Dalrymple, Assistant Attorney General, for the defendants. Presen... RAYTHEON COMPANY v. COMMISSIONER OF REVENUE. , Mass., November 10, 2009 Holding: After granting taxpayer's application for direct appellate review, the Supreme Judicial Court, Botsford, J., held that taxpayer was required to pay sales and use tax on items. Affirmed. Taxation, Sales and use tax. Words, "Sale at retail." APPEAL from a decision of the Appellate Tax Board. The Supreme Judicial Court granted an application for direct appellate review. Robert M. Buchanan, Jr. (Samuel B. Bruskin with him) for the taxpayer. Timothy J. Casey, Assistant Attorn... ABBOTT A., a juvenile v. COMMONWEALTH. , Mass., November 10, 2009 Supreme Judicial Court, Appeal from order of single justice. Practice, Criminal, Defendant's competency. The case was submitted on the papers filed, accompanied by a memorandum of law. Barbara Kaban for the juvenile. RESCRIPT. The juvenile petitioner appeals from a judgment of a single justice of this court denying his petition pursuant to G.L. c. 211, § 3. We affirm. In July, 2009, the petitioner was charged in the Juvenile Court with armed assault with intent to murder, among o... Alejandro CARDENAS v. CLERK-MAGISTRATE OF THE SUPERIOR COURT IN MIDDLESEX COUNTY. , Mass., November 10, 2009 Supreme Judicial Court, Appeal from order of single justice, Superintendence of inferior courts. Clerk of Court. Alejandro Cardenas, pro se. RESCRIPT. Alejandro Cardenas appeals, pro se, from a judgment of a single justice of this court denying his petition for relief pursuant to G.L. c. 211, § 3. He had sought relief from alleged inaction in the Superior Court in scheduling and acting on various motions that he had filed in a civil matter pending in that court. The case is now before ... COMMONWEALTH v. James P. RIDGE. , Mass., November 10, 2009 Holdings: The Supreme Judicial Court, Ireland, J., held that: (1) defendant, who asserted defense of inadequate police investigation, was not prejudiced by exclusion of hearsay information learned from Florida police; (2) evidence of defendant's access to, and knowledge of, firearms and bullets was admissible under exception to prohibition of "bad acts" evidence; (3) evidence about defendant's shooting at shirt belonging to person whom defendant blamed for losing defendant's money, and ... CLEAN HARBORS ENVIRONMENTAL SERVICES, INC. v. BOSTON BASEMENT TECHNOLOGIES, INC; Admiral Insurance Company, third-party defendant. , Mass.App.Ct., November 9, 2009 Insurance, Coverage, Property damage, General liability insurance, Pollution exclusion clause. Massachusetts Oil and Hazardous Material Release Prevention Act. CIVIL ACTION commenced in the Quincy Division of the District Court Department on October 6, 2005. A third-party complaint, filed on November 14, 2005, was heard by Mark S. Coven, J., on a motion for summary judgment. Douglas W. Salvesen for Boston Basement Technologies, Inc. Brian R. Birke for Admiral Insurance Company. Pres... D'AGOSTINO ASSOCIATES, INC. v. PEABODY CONSTRUCTION CO., INC., & others. [FN1]FN1. Citizens Bank of Massachusetts and Travelers Casualty and Surety Company of America. , Mass.App.Ct., November 9, 2009 By the Court (COHEN, BROWN & MILLS, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 Subcontractor D'Agostino Associates, Inc. (D'Agostino), appeals from an order dissolving a trustee process attachment. D'Agostino obtained a judgment against the general contractor, Peabody Construction Co., Inc. (Peabody), then obtained an ex-parte trustee process attachment, which was served on Citizens Bank of Massachusetts (Citizens), which answered that it had located an account, but was unclear whether P... COMMONWEALTH v. Eugene DAVIS. , Mass.App.Ct., November 9, 2009 By the Court (KAFKER, KATZMANN & RUBIN, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 The defendant, Eugene Davis, was convicted of unlawful distribution of a class A controlled substance and distribution of a controlled substance in a school zone. On appeal, he challenges the sufficiency of the evidence supporting the conclusion that the distribution occurred within the school zone. He also argues that the trial judge erred in not dismissing the indictments because of prosecutorial miscond... COMMONWEALTH v. Anthony R. COPPOLO. , Mass.App.Ct., November 9, 2009 By the Court (COHEN, BROWN & MILLS, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 The defendant appeals from his conviction of operating a motor vehicle while under the influence of intoxicating liquor (OUI), G.L. c. 90, § 24. In denying the defendant's motion to dismiss for violation of his right to an independent medical examination, G.L. c. 263, § 5A, the judge found that although the defendant's § 5A right was violated, there was overwhelming evidence of intoxication. The judge did, how... Holly M. CHIANCOLA v. Kadri KURGUN. , Mass.App.Ct., November 9, 2009 By the Court (GRASSO, FECTEAU & HANLON, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 Holly M. Chiancola (wife) appeals from a judgment modifying an alimony award to Kadri Kurgun (husband) and from so much of the divorce judgment as awarded alimony until the death of either party or the husband's remarriage. [FN1] We affirm. FN1. We refer to the former spouses as husband and wife for ease of reference. 1. Modification of alimony. At the time the judgment of divorce nisi entered... Rudolph F. PIERCE v. Carneice G. PIERCE. , Mass., November 9, 2009 Divorce and Separation, Modification of judgment, Alimony, Findings. Retirement. COMPLAINT for divorce filed in the Middlesex Division of the Probate and Family Court Department on August 12, 1998. A complaint for modification, filed on August 24, 2007, was heard by Leilah A. Keamy, J. The Supreme Judicial Court granted an application for direct appellate review. Anthony M. Doniger (Susan A. Hartnett with him) for Rudolph F. Pierce. David E. Cherny (Mark T. Smith with him) for Carne... COMMONWEALTH v. Cedric R. LEDNUM. , Mass.App.Ct., November 9, 2009 Assault and Battery by Means of a Dangerous Weapon. Dangerous Weapon. Gas. Words, "Dangerous weapon." INDICTMENTS found and returned in the Superior Court Department on February 17, 2005. The cases were tried before D. Lloyd Macdonald, J. Elaine Pourinski for the defendant. Kristen L. Spooner, Assistant District Attorney, for the Commonwealth. Present: Kantrowitz, Smith, & Graham, JJ. KANTROWITZ, J. Today we hold that natural gas, as used here, is a dangerous weapon. As su... TOWN OF PEMBROKE v. FOUNDATION FOR HUMANITY, INC. , Mass.App.Ct., November 6, 2009 By the Court (BERRY, GRAINGER & WOLOHOJIAN, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 This is an appeal by the defendant, Foundation for Humanity, Inc. (foundation), from a judgment of the Superior Court directing the foundation to comply with numerous cease and desist orders stemming from alleged zoning violations. We address the parties' arguments in turn, referring to facts established in the record as they become relevant. We first address the plaintiff town of Pembroke's (town)... Glenn MONIZ v. DEPARTMENT OF CORRECTION & others. [FN1]FN1. Edward Ficco, former superintendent of Souza-Baranowski correctional center (SBCC) and three correction officers; all are sued in their individual capacities. , Mass.App.Ct., November 6, 2009 By the Court (BERRY, KAFKER & GRAINGER, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 The plaintiff, Glenn Moniz, appeals from the dismissal of his complaint, based on 42 U.S.C. § 1983 (2006), G.L. c. 127, § 40, and G.L. c. 12, §§ 11H & 11I, by a judge of the Superior Court. The judge dismissed the action on the grounds that the issues presented had been addressed previously in the plaintiff's action in the nature of certiorari and that the plaintiff failed to state a claim upon which relie... Kenneth HIPSON & others [FN1]FN1. Mary Hipson, Kathleen Fletcher, James Gedenberg, Karen Gedenberg, David LaRose, Carol LaRose, Edward Gaudette, Alice Gaudette, Jeffrey Ray, Jeffrey Whorton, Sharon Whorton, James Ljunggren, Robert Sulik, Kathleen Wo, Mass.App.Ct., November 6, 2009 By the Court (BERRY, GRAINGER & WOLOHOJIAN, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 The plaintiffs appeal the dismissal of their complaint for lack of subject matter jurisdiction by a judge of the Superior Court. The plaintiffs contend that the judge erred in (i) treating the motion in limine of the Auburn zoning board of appeals (board) as a motion to dismiss and failing to afford the plaintiffs an opportunity to respond, (ii) granting the board's motion to dismiss, and (iii) denying... Janet FEENEY v. James A. FEENEY. , Mass.App.Ct., November 6, 2009 By the Court (KATZMANN, J., SMITH, & VUONO, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 The husband appeals from two orders of the Probate and Family Court issued on September 25 and 26, 2007, which dismissed his appeals from the divorce judgment (entered on January 23, 2006) and various subsequent judgments on the wife's complaints for contempt. The basis for the dismissal in both instances was the husband's failure to file a transcript of the proceedings. We affirm. The procedural hi... COMMONWEALTH v. Kelly WALKER. , Mass.App.Ct., November 6, 2009 By the Court (BERRY, GRAINGER & WOLOHOJIAN, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 The defendant appeals from the denial of his motion to reconsider the denial of his motion for a new trial. We affirm. The defendant's motion for a new trial was based on assertions of ineffective assistance of counsel at the time he admitted sufficient facts as to charges of trespass and possession of marijuana and cocaine with intent to distribute. In support he provided an affidavit to the effect... COMMONWEALTH v. Robert N. OLIVERI. , Mass.App.Ct., November 6, 2009 By the Court (McHUGH, VUONO & MEADE, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 The dispatcher's statement had hearsay potential, but it was admitted without objection and without a request that it be used only for a limited purpose. Review, therefore, is limited to determining whether admission of the statement created a substantial risk of a miscarriage of justice. See Commonwealth v. Torres, 71 Mass.App.Ct. 723, 735 (2008). The statement did have nonhearsay relevance, albeit marginal,... COMMONWEALTH v. Melvin JONES. , Mass.App.Ct., November 6, 2009 By the Court (McHUGH, VUONO, & MEADE, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 A jury convicted the defendant of criminal trespass in violation of G.L. c. 266, § 120. On appeal, he claims that the trial judge committed prejudicial error by: (1) permitting the Commonwealth's opening statement, and later testimony, to improperly comment on the defendant's character, and (2) by improperly instructing the jury on the law of criminal trespass. We reverse. 1. Character evidence. The defe... COMMONWEALTH v. Timothy ESTABROOK. , Mass.App.Ct., November 6, 2009 By the Court (DUFFLY, MILLS & MEADE, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 The defendant was indicted on charges of (1) vandalizing property, G.L. c. 266, § 126A, (2) carrying a firearm without a license, G.L. c. 269, § 10(a ), and (3) possessing a firearm or ammunition without a firearm identification card, G.L. c. 269, § 10(h ). The defendant's motion to sever the firearms charges from the vandalism charge was denied; his motion for a required finding of not guilty made after the... COMMONWEALTH v. Marvel JEAN-CHARLES. , Mass.App.Ct., November 6, 2009 By the Court (McHUGH, VUONO & MEADE, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 The defendant's contention that there was insufficient evidence to support his guilty plea on the charge of possession with intent to distribute a class D substance in docket number 0450CR001202 fails, both because the Commonwealth stated that it would present evidence at trial that the defendant intended to distribute the marijuana he was charged with possessing and because the actual sale forming the subjec... ADOPTION OF PARNELL. (and one companion case [FN1]). FN1. Adoption of Jack. The children's names are pseudonyms. , Mass.App.Ct., November 6, 2009 By the Court (BERRY, GRAINGER & WOLOHOJIAN, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 The mother was found unfit and her parental rights were terminated by a Juvenile Court judge. She does not contest the termination, but appeals from the judge's failure to order posttermination and postadoption contact with the children. Parnell (born in November, 1997) appeals from the judge's approval of the department's adoption plan (for the children to be adopted by their paternal aunt and uncle),... Judith A. CZYOSKI and Andrew Czyoski, as Trustees of A and B Nominee Realty Trust, Plaintiffs v. Cynthia A. SLADE, as she is the Town Clerk of the Town of Truro, Defendant. , Mass.Land Ct., November 6, 2009 DECISION CHARLES W. TROMBLY, JR., Justice. Plaintiffs commenced this case on May 5, 2009, as an action in the nature of a mandamus, pursuant to G.L. c. 249, § 5, seeking to compel the Defendant, the Town Clerk of the Town of Truro to issue a certificate of constructive approval on a certain definitive subdivision plan of land, titled "Subdivision Plan of Land in Truro, Made for the Czyoski Family Trust, Scale 1"=5', Slade Associates, Inc." dated June 10, 2005 (Definitive Plan). The Definitive... Judith A. CZYOSKI and Andrew Czyoski, as Trustees of A and B Nominee Realty Trust, Plaintiffs v. Cynthia A. SLADE, as she is the Town Clerk of the Town of Truro, Defendant. , Mass.Land Ct., November 6, 2009 JUDGMENT [FN1] FN1. If not specifically defined herein, each term carries the same definition employed in the Decision. TROMBLY, J. Plaintiffs commenced this case on May 5, 2009, as an action in the nature of a mandamus, pursuant to G.L. c. 249, § 5, seeking to compel the Defendant, the Town Clerk of the Town of Truro to issue a certificate of constructive approval on a certain definitive subdivision plan of land, titled "Subdivision Plan of Land in Truro, Made for the Czyoski Family Trus... KARL A. BRIGHT INSURANCE AGENCY, INC. v. Mark WASSARMAN. , Mass.App.Ct., November 5, 2009 By the Court (McHUGH, COHEN & SIKORA, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 On January 23, 2008, as a result of the defendant's failure to answer interrogatories propounded by the plaintiff in July, 2007, the plaintiff obtained a default judgment as to liability and the dismissal of the defendant's counterclaims. On April 15, 2008, at the scheduled hearing for assessment of damages, the defendant, interrogatory answers in hand, moved to vacate the default judgment. [FN1] A judge of ... COMMONWEALTH v. Wayne R. PAYETTE. , Mass.App.Ct., November 5, 2009 By the Court (TRAINOR, BROWN & WOLOHOJIAN, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 A Buckland police officer was monitoring traffic approximately one- quarter mile from the Buckland-Shelburne border when he observed the defendant traveling toward the town of Shelburne in excess of the speed limit. The officer followed and stopped the defendant in Shelburne. [FN1] Suspecting that the defendant was intoxicated, the officer requested assistance from the Shelburne police. When a Shelburne... COMMONWEALTH v. Wesley J. DIXON. , Mass.App.Ct., November 5, 2009 By the Court (BERRY, GRAINGER & WOLOHOJIAN, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 The defendant appeals from his convictions, after a jury trial, for possession with intent to distribute cocaine, subsequent offense, [FN1] and possession of a class B substance (buprenorphine). Among other assertions, [FN2] the defendant argues drug certificates of analysis were erroneously admitted without a live witness, in violation of his right to confrontation under the Sixth Amendment to the Un... COMMONWEALTH v. Rachael BETTERS. , Mass.App.Ct., November 5, 2009 By the Court (McHUGH, COHEN & SIKORA, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 By this interlocutory appeal, the Commonwealth challenges a District Court judge's suppression of the defendant's statements to a police officer at the scene of an automobile accident. The defendant was charged with operating a motor vehicle while under the influence of alcohol and unsafe operation of a motor vehicle. We reverse. Background. We summarize the underlying facts, as found by the motion judge ... ADOPTION OF YNEZ. [FN1]FN1. A pseudonym. , Mass.App.Ct., November 5, 2009 By the Court (McHUGH, COHEN & SIKORA, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 The father appeals from a Juvenile Court judge's decision approving the adoption plan of the Department of Children and Families (DCF). [FN2] The father contends that the judge's determination constituted an abuse of discretion and that the DCF's application of an allegedly discriminatory placement policy violated his equal protection rights. We affirm. FN2. DCF was formerly known as the Department o... ADOPTION OF WILHELMINA. [FN1]FN1. A pseudonym. , Mass.App.Ct., November 5, 2009 By the Court (LENK, KANTROWITZ & HANLON, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 The father appeals a decree terminating his parental rights, arguing that (1) his due process rights were violated in that (a) a hearing was held in his absence, and (b) he was not allowed to present evidence in his trial [FN2]; (2) the judge failed to keep an open mind; and (3) the evidence was insufficient to warrant termination of his parental rights. We affirm. FN2. In response to a question ... COMMONWEALTH v. Michael HARRIS. , Mass.App.Ct., November 5, 2009 Holdings: The Appeals Court, Cypher, J., held that: (1) defendant's second statement to police was not tainted, so as to require suppression, by prior statement obtained in violation of defendant's Miranda rights; (2) entry of nolle prosequi on subsequent offender portion of indictment did not effect an acquittal of the entire indictment; (3) defendant was not prejudiced by alleged loss of evidence; and (4) introduction of drug certificates without testimony of state police analyst ... James J. O'MALLEY, III v. Marguerite F. KELLY. , Mass.App.Div., November 4, 2009 In the Salem Division, Docket No. 0736-CV-1324, Cornetta, J. James J. O'Malley, III, Esq., Salem, MA, for plaintiff. Jeffrey E. Rossman, Esq., Rossman & Rossman, Boston, MA, for defendant. Before COVEN, CURTIN & BRANT, JJ. OPINION COVEN, J. This is a Dist./Mun. Cts. R.A.D.A. 8C appeal by the plaintiff of the dismissal of his second notice of appeal. As the plaintiffs third notice of appeal, commencing this appeal, was submitted after the expiration of the prescribed filing period,... Wilson TORRES'S CASE. , Mass.App.Ct., November 4, 2009 By the Court (LENK, GREEN & TRAINOR, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 Discerning no error in the decision of the reviewing board of the Department of Industrial Accidents, which affirmed the order of the administrative judge, we affirm. Neither issue claimed by the appellant on appeal (that 452 Code Mass. Regs. § 1.19[3] [1997] conflicts with the Workers' Compensation Act, and that the administrative judge erred in failing to order an independent medical exam) was raised below.... Errol MORRIS'S CASE. , Mass.App.Ct., November 4, 2009 By the Court (KANTROWITZ, SMITH & GRAHAM, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 Errol Morris appeals from a decision of the reviewing board of the Department of Industrial Accidents (board) which summarily affirmed the decision of an administrative judge denying the employee's claims for benefits under G.L. c. 152, § 35, from March 31, 2004, to July 13, 2004, and for medical benefits under G.L. c. 152, §§ 13 and 30. We affirm. [FN1] FN1. "Because the board summarily affirmed, we rev... Daniel M. MASON v. DEPARTMENT OF CORRECTION & others. [FN1]FN1. The plaintiff originally brought this action against former Attorney General Thomas Reilly, former Acting Governor Jane Swift, former Governor Mitt Romney, former Commissioner of the D, Mass.App.Ct., November 4, 2009 By the Court (BERRY, DREBEN & HANLON, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 The plaintiff, a prisoner in the departmental disciplinary unit (DDU) at Massachusetts Correctional Institution, Cedar Junction (MCI-Cedar Junction), appeals (pro se) from the entry of a summary judgment in favor of the defendants. His claims arise out of the following circumstances. When he was transferred from the general prison population to the DDU, the plaintiff was notified that he was not permitted to... Claudio M. DELISE v. Jose C. SCERBO. , Mass.App.Ct., November 4, 2009 By the Court (KAFKER, KATZMANN & RUBIN, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 These are cross appeals from a judgment in a bench trial awarding the defendant, Dr. Jose C. Scerbo, approximately $325,000 (plus another $111,000 in prejudgment interest). The plaintiff, Dr. Claudio M. Delise, challenges the judge's accounting of a windup of a joint venture of the two doctors. Also at issue is an order allowing Scerbo's partial summary judgment motion (dismissing Delise's third claim for ... COMMONWEALTH v. Bhavin D. PATEL. , Mass.App.Ct., November 4, 2009 By the Court (LENK, KANTROWITZ & HANLON, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 Among other charges, the defendant, Bhavin D. Patel, was charged with operating a motor vehicle under the influence of alcohol causing serious bodily injury (OUI-SBI), G.L. c. 90C, § 24L(1). The defendant filed a motion to dismiss on the basis that the citation for the charge was not timely issued pursuant to G.L. c. 90C, § 2. Following an evidentiary hearing, the trial court judge allowed the defendant's... COMMONWEALTH v. Ronald NERO. , Mass.App.Ct., November 4, 2009 By the Court (GREEN, GRAHAM & FECTEAU, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 The defendant's trial counsel objected at his jury-waived trial to admission of a certificate of chemical analysis of the crack cocaine the defendant had distributed to an undercover officer. Admission of the certificate over the defendant's objection was error. See Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527, 2532 (2009). Because the claim of constitutional error was preserved, we consider whether it wa... COMMONWEALTH v. Herman J. HALL, Jr. , Mass.App.Ct., November 4, 2009 By the Court (LENK, GREEN & TRAINOR, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 We discern no error in the order of the motion judge denying the defendant's motion for a new trial, for substantially the reasons articulated in the Commonwealth's brief at pages sixteen through thirty-one. Order denying motion for new trial affirmed. John T. HAFFEY v. Howard J. ROCK, individually and as trustee, [FN1] & another [FN2] (and a companion case [FN3]). FN1. Of the Westgate Road Realty Trust, a reach and apply defendant. FN2. Martin J. Coleman, Third. FN3. The companion, Mass.App.Ct., November 4, 2009 Judgment, Relief from judgment, Correction of judgment. Practice, Civil, Relief from judgment, Correction of judgment. CIVIL ACTION commenced in the Superior Court Department on December 7, 1989. Entry of final judgment was ordered by Herman J. Smith, Jr., J., on March 3, 2008. CIVIL ACTION commenced in the Superior Court Department on May 10, 2005. Motions to vacate or to amend the judgment and to dismiss or for summary judgment, filed on November 28, 2007, were heard by Herman J. S... HITACHI HIGH TECHNOLOGIES AMERICA, INC. v. Kevin BOWLER. , Mass., November 4, 2009 Holding: The Supreme Judicial Court, Marshall, C.J., held that Employee Retirement Income Security Act (ERISA) preempted employer's claim. Affirmed. Brett D. Carroll, Boston, for the plaintiff. Gregory D. Lorincz, Attleborro (Paul F. Lorincz with him) for the defendant. Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ. MARSHALL, C.J. We are asked to determine whether the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001 et s... CARE AND PROTECTION OF ZITA. , Mass., November 4, 2009 Minor, Care and protection, Custody, Temporary custody. Parent and Child, Care and protection of minor, Custody of minor. Due Process of Law, Child custody proceeding. Department of Children and Families. Supreme Judicial Court, Superintendence of inferior courts. Juvenile Court. CIVIL ACTION commenced in the Supreme Judicial Court for the county of Suffolk on February 17, 2009. The case was heard by Spina, J. Mark A. Papirio (Timothy M. Kotfila with him) for the child. Monica C. Murphy... MUNI-TECH, INC. v. Mark HENRY. , Mass.App.Div., November 3, 2009 In the Wrentham Division, Docket No. 0657-CV-0060, Johnson Smith, J. Daniel F. MacDonald, Esq., Norwood, MA, for plaintiff. Stephen M.A. Woodworth, Esq., Lynch & Lynch, South Easton, MA, for defendant. Before WILLIAMS, P.J., MERRICK & HAND, JJ. OPINION WILLIAMS, P.J. The plaintiff, Muni-Tech, Inc. ("Muni-Tech"), appeals the bench-trial judgment in favor of the defendant, Mark Henry ("Henry"), claiming that because Henry had stipulated at trial that Tanisha Phifer ("Phifer") was dr... Kevin P. BOIVIN, also known as Kevan P. Boivan; Lorraine Y. Boivin, also known as Lorraine Y. Boivan; and Debra Campagna, Plaintiffs v. Rachel M. BECKMAN, Defendant. , Mass.Land Ct., November 3, 2009 ORDER ALLOWING THE DEFENDANT'S SPECIAL MOTION TO DISMISS TROMBLY, J. This case comes before the court on special motion of the Defendant Rachel M. Beckman to dismiss the Complaint, pursuant to G.L. c. 184, § 15. The underlying action is for a declaratory judgment, pursuant to G.L. c. 231A, § 1 , regarding the rights of the parties in a parcel of real property, known as and numbered 208 North End Boulevard in Salisbury (Property), owned of record by Defendant. Plaintiffs, Kevin Boivin, also ... Kevin P. BOIVIN, also known as Kevan P. Boivan; Lorraine Y. Boivin, also known as Lorraine Y. Boivan; and Debra Campagna, Plaintiffs v. Rachel M. BECKMAN, Defendant. , Mass.Land Ct., November 3, 2009 JUDGMENT [FN1] FN1. If not specifically defined herein, each term carries the same definition employed in the Decision. TROMBLY, J. Plaintiffs, Kevin P. Boivin, also known as Kevan P. Boivan; Lorraine Y. Boivin, also known as Lorraine Y. Boivan; and Debra Campagna, commenced this case on July 28, 2009, seeking a declaratory judgment, pursuant to G.L. c. 231A, § 1, regarding the rights of the parties in a parcel of real property, known as and numbered 208 North End Boulevard in Salisbury (... Patricia A. ORELL v. Sandra L. KRAUSE & another. [FN1]FN1. Francis Campaniello, who was added as a defendant in May 2005, some two and one-half years after the original complaint. , Mass.App.Ct., November 3, 2009 By the Court (LENK, GREEN & TRAINOR, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 The defendants have appealed from a Superior Court judgment on a jury verdict that awards the plaintiff, their abutter to the south, title by adverse possession to a triangular strip of their property, approximately seventeen feet by 125 feet by 125 feet, comprising an area of 1,091 square feet. See trial exhibit 25, RA 84 (2002 survey); RA 40 (judgment). The plaintiff acquired the property marked # 31 on ... COMMONWEALTH v. Tahmouress SADEGHI. , Mass.App.Ct., November 3, 2009 By the Court (GRASSO, FECTEAU & HANLON, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 After a jury trial, the defendant was convicted of armed assault with intent to kill and assault and battery by means of a dangerous weapon causing serious bodily injury. He appeals his convictions and the denial of his motion for new trial based upon ineffective assistance of counsel. In addition, he argues that the prosecutor's opening statement and closing argument were improper, depriving him of a fair... COMMONWEALTH v. Carlos A. NOBOA. , Mass.App.Ct., November 3, 2009 By the Court (LENK, GREEN & TRAINOR, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 After reviewing the parties' written submissions and the trial transcript, we agree with the Commonwealth, for substantially the reasons set forth in its brief at pages seven through fourteen, that sufficient evidence was introduced by the Commonwealth to sustain the defendant's conviction of operating a motor vehicle while under the influence of alcohol. Judgment affirmed. COMMONWEALTH v. Ronald M. LeBLANC. , Mass.App.Ct., November 3, 2009 By the Court (DUFFLY, GRAHAM & FECTEAU, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 The defendant was tried and convicted by a District Court jury of one count of indecent assault and battery upon a child under the age of fourteen, in violation of G.L. c. 265, § 13B. On appeal, the defendant's main contention is that the judge committed prejudicial error by allowing first complaint testimony from two other witnesses, in addition to the actual first complaint witness. He further contends t... COMMONWEALTH v. Duane L. BIRKS. , Mass.App.Ct., November 3, 2009 By the Court (LENK, GREEN & TRAINOR, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 After a jury waived trial, the defendant was convicted of one count of indecent assault and battery on a child under fourteen, G.L .c.265, § 13B, as amended by St.1998, c. 194, § 236. On appeal, he maintains that the trial judge erred in denying his motion for a required finding of not guilty both because the Commonwealth failed to provide the defense with the set date on which the offense was committed and b... COMMONWEALTH v. Locksley BAILEY. , Mass.App.Ct., November 3, 2009 By the Court (GRASSO, FECTEAU & HANLON, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 The defendant appeals from his conviction, following a jury trial in the Boston Municipal Court, of four weapons violations: unlawful possession of a firearm, G.L. c. 269, § 10(a ); unlawful possession of ammunition, G.L. c. 269, § 10(h ); carrying a loaded firearm, G.L. c. 269, § 10(n ); and receiving a firearm with a defaced serial number, G.L. c. 269, § 11C. Specifically, he complains the judge erred in... Mark ANDREWS & others [FN1]v. CITY OF SPRINGFIELD. FN1. Joyce Andrews, Francis Harnois, Robert Hanois, Russell Pepe, Antonette Pepe, Edward J. Nieves, Sharon Nieves, John Scammon, and Robin Scammon. , Mass.App.Ct., November 3, 2009 Practice, Civil, Summary judgment, Standing. Contract, Construction contract, Lease of real estate, Public works, Bidding for contract. Public Works, Bidding procedure. Statute, Construction. CIVIL ACTION commenced in the Superior Court Department on June 10, 2003. A motion for summary judgment was heard by Judd J. Carhart, J., and entry of judgment was ordered by Cornelius J. Moriarty, II, J. Christopher N. Souris for the plaintiffs. Harry P. Carroll (Edward M. Pikula, City Solicito... Susan M. CURTIS, executrix, [FN1]v. HERB CHAMBERS I-95, INC., [FN2] & others. [FN3]FN1. Of the estate of Harold Curtis. FN2. Doing business as Herb Chambers Dodge. FN3. Silver Star, Inc., doing business as Herb Chambers Kia Lynnfield; , Mass.App.Ct., November 3, 2009 Holdings: The Appeals Court, Rubin, J., held that: (1) trade dress claims were barred by collateral estoppel; (2) claims for breach of implied covenant of good faith and fair dealing were not preempted by Federal Copyright Act; (3) claims for interference with advantageous business relations were not preempted by Act; and (4) claims seeking punitive damages for alleged violations of unfair business practices act survived creator's death. Affirmed in part, reversed in part, and r... COMMONWEALTH v. Andre WARREN. , Mass.App.Ct., November 2, 2009 By the Court (GRASSO, FECTEAU & HANLON, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 A jury found the defendant guilty of larceny of property over $250, and uttering a forged instrument. On appeal, the sole issue is whether the evidence sufficed to establish that the defendant knew that the American Express traveler's checks (checks) were forged instruments when he uttered them. [FN1] We affirm for substantially the reasons set forth in the Commonwealth's brief at pages 5 through 12. ... MECHANICS CO/OPERATIVE BANK v. Bahig F. BISHAY. , Mass.App.Ct., November 2, 2009 By the Court (RAPOZA, C.J., GRASSO & MILKEY, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 In these consolidated appeals, Bahig F. Bishay challenges two judgments that stem from Bishay's unlimited personal guaranty of a promissory note to Mechanics Co/Operative Bank (Mechanics). Bishay secured the debt with a 1954 Mercedes Benz 300SL Gullwing, and both actions involved the value of this collateral. The first action, brought by Mechanics against Bishay and another, [FN1] was tried to a jury... John DOE, SEX OFFENDER REGISTRY BOARD NO. 4169 v. SEX OFFENDER REGISTRY BOARD. , Mass.App.Ct., November 2, 2009 By the Court (RAPOZA, C.J., GRASSO & MILKEY, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 The appellant (whom we shall refer to as John Doe) challenges a Superior Court judgment that affirmed a decision by the Sex Offender Registry Board (the board) that classified him as a level 3, high-risk sex offender pursuant to G.L. c. 6, § 178M. We affirm. Doe was convicted of sexual offenses on three separate occasions. In 1989, he was convicted of indecent assault and battery on a child under f... Erin DEACY v. STUDENTCITY.COM, LLC. , Mass.App.Ct., November 2, 2009 By the Court (BERRY, MILLS & WOLOHOJIAN, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 The plaintiff, Erin Deacy, purchased a Cancun, Mexico tour package from the defendant, StudentCity.com, LLC. This was her second vacation package purchased from the defendant. It included air travel from the United States to Mexico, ground transportation, and lodging at the Carisa y Palma hotel (hotel) in Cancun. On March 24, 2002, she embarked on a week-long "spring break vacation." This spring break vac... COMMONWEALTH v. Charles REEVES. , Mass.App.Ct., November 2, 2009 By the Court (BERRY, KAFKER & GRAINGER, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 This case arises from an incident of sexual assault involving the defendant, Charles Reeves, and a female victim. The defendant was tried before a jury in February and March, 2007, on two counts of aggravated rape, assault with intent to rape, indecent assault and battery, kidnapping, assault and battery by means of a dangerous weapon, and assault and battery. [FN1] At trial, the defendant's main defense w... COMMONWEALTH v. Godwin ODIMEGWU. , Mass.App.Ct., November 2, 2009 By the Court (GRASSO, FECTEAU & HANLON, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 On appeal from his conviction of unlawful possession of an electric weapon, the defendant argues that (1) the Commonwealth presented insufficient evidence; (2) the trial judge erred in admitting certain testimony; and (3) the prosecutor's closing argument requires reversal. We affirm. 1. Sufficiency of the evidence. Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 37... Manuel FANTASIA'S CASE. , Mass.App.Ct., November 2, 2009 Holding: The Appeals Court, Smith, J., held that insurer was not prejudiced by failure of claimant to file claim within one-year statute of limitations or claimant's failure to give insurer timely notice of his injury. Affirmed. Scott K. Lueker, Boston (Paul M. Moretti with him) for the insurer. William C. Harpin, Wakefield, for the employee. Present: KATZMANN, SMITH, & VUONO, JJ. SMITH, J. In this long-standing workers' compensation action, we decide an issue we were unable to... COMMONWEALTH v. Tracey DOUGLAS. , Mass.App.Ct., November 2, 2009 Holdings: The Appeals Court, Sikora, J., held that: (1) trial court failed to make specific, clear findings upon adequacy and genuineness of prosecutor's race-neutral explanation, as necessary to sustain peremptory challenge of African-American prospective juror; and (2) erroneous admission of blood alcohol content (BAC) evidence without requisite expert testimony, coupled with jury instruction on a permissible inference of intoxication that had been eliminated by statutory amendments, c... U.S. BANK NATIONAL ASSOCIATION, as trustee, on behalf of the holders of the Home Equity Asset Trust 2005-9 Home Equity Pass-Through Certificates, Series 2005-9, Plaintiff v. Florence N. GITHIRA, Defendant. , Mass.Land Ct., October 30, 2009 JUDGMENT TROMBLY, J. This action was filed by U.S. Bank National Association, as Trustee, on October 23, 2008, seeking to remove a cloud on the title of a parcel of land, with the building thereon, located at 136-138 Exchange Street in the City of Lawrence ("Property"). Specifically, Plaintiff contends that it now owns the property, having purchased it at a foreclosure sale, but that its title is clouded because the Bank noticed and exercised the power of sale contained in the mortgage before... U.S. BANK NATIONAL ASSOCIATION, as trustee, on behalf of the holders of the Home Equity Asset Trust 2005-9 Home Equity Pass-Through Certificates, Series 2005-9, Plaintiff v. Florence N. GITHIRA, Defendant. , Mass.Land Ct., October 30, 2009 DECISION CHARLES W. TROMBLY, JR., Justice. This action was filed by U.S. Bank National Association, as Trustee, on October 23, 2008, seeking to remove a cloud on its title to a parcel of land, with the building thereon, located at 136-138 Exchange Street in the City of Lawrence ("Property"). Specifically, plaintiff contends that it now owns the property, having purchased it at a foreclosure sale, but that its title is clouded because the bank noticed and exercised the power of sale contained ... John DOE, Sex Offender Registry Board No. 22409 v. SEX OFFENDER REGISTRY BOARD. , Mass.App.Ct., October 30, 2009 By the Court (BERRY, GRAINGER & WOLOHOJIAN, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 The plaintiff was convicted of one count of rape of a child under the age of sixteen with force (G.L. c. 265, § 22A) and one count of indecent assault and battery on a child under the age of fourteen (G .L. c. 265, § 13B). The victim was his stepdaughter. After his release from incarceration he was classified by the Sex Offender Registry Board (SORB) as a level three offender. He sought de novo review.... COMMONWEALTH v. XIAOCHENG GU. , Mass.App.Ct., October 30, 2009 By the Court (CYPHER, VUONO & MILKEY, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 Following a jury-waived trial in the Superior Court, the defendant was convicted of indecent assault and battery, as a lesser included offense of rape, and assault with intent to commit rape. [FN1] The defendant appealed and, approximately ten years later, filed a motion for a new trial, which was denied. We discern no error and, therefore, we affirm the judgments and the order denying the motion for a new t... RCS GROUP, INC. v. LAMONICA CONSTRUCTION CO., INC. , Mass.App.Ct., October 30, 2009 Holding: The Appeals Court, Milkey, J., held that subcontractor had no contractual obligation to name general contractor as additional insured in commercial general liability (CGL) insurance subcontractor was required by the contract to purchase. Reversed and remanded. Brian McMenimen, Boston, for the plaintiff. Marielise Kelly, Boston, for the defendant. Present: CYPHER, VUONO, & MILKEY, JJ. MILKEY, J. In 1998, an employee of Lamonica Construction Co., Inc. (Lamonica), was se... Farouk MARTINS v. UNIVERSITY OF MASSACHUSETTS MEDICAL SCHOOL & others. [FN1]FN1. Charles Cook, Nancy Kealey, and Anthony Zanette. , Mass.App.Ct., October 30, 2009 Holdings: The Appeals Court, Brown, J., held that: (1) employee established prima facie discrimination case; and (2) employee established third-stage discrimination case; but (3) employee was preempted from joining MERA claims against university. Affirmed in part, reversed in part, and remanded. Farouk Martins, pro se. Jean Marie Kelley for the defendants. Present: LENK, BROWN, & GRAINGER, JJ. BROWN, J. The point of law we are required to clarify in this case is whe... Mary SHELALES v. DIRECTOR OF THE OFFICE OF MEDICAID. , Mass.App.Ct., October 30, 2009 Holding: The Appeals Court, Grasso, J., held that period began to run on day after applicant's prepayment to long-term care provider was exhausted, not on day after applicant had made transfer. Affirmed. Arthur P. Bergeron, Marlborough, for the plaintiff. Marina Moriarty, Assistant Attorney General, for the defendant. Present: RAPOZA, C.J., GRASSO, & MILKEY, JJ. GRASSO, J. Mary Shelales appeals from a judgment of the Superior Court affirming the decision of the Office of Medica... Lawrence WATSON v. POLICE DEPARTMENT OF BOSTON. , Mass., October 30, 2009 Supreme Judicial Court, Appeal from order of single justice, Superintendence of inferior courts. Practice, Civil, Costs, Waiver. Lawrence Watson, pro se. Dawn M. Beauchesne, Assistant Corporation Counsel, for the defendant, was present but did not argue. RESCRIPT. Lawrence Watson appeals from a judgment of a single justice of this court denying his petition for relief under G.L. c. 211, § 3. Watson commenced an action in the Superior Court, purportedly against the police department ... Lawrence WATSON v. Kevin McCLERKIN. , Mass., October 30, 2009 Supreme Judicial Court, Appeal from order of single justice. Mandamus. Practice, Civil, Action in nature of mandamus. Lawrence Watson, pro se. RESCRIPT. Lawrence Watson appeals from a judgment of a single justice of this court denying his petition for relief in the nature of mandamus. This matter arises from an action commenced by Watson in the Boston Division of the Housing Court Department. Watson filed a notice of appeal from the judge's decision in that action. Watson seeks an orde... Lawrence WATSON v. Sherry WALKER & others. [FN1]FN1. A judge in the Probate and Family Court, the register of the Probate and Family Court, and various Probate and Family Court employees. , Mass., October 30, 2009 Supreme Judicial Court, Appeal from order of single justice. Lawrence Watson, pro se. Annapurna Balakrishna, Assistant Attorney General, for Kathleen Sanford & others, was present but did not argue. RESCRIPT. Lawrence Watson appeals from a judgment of a single justice of this court denying his petition for relief pursuant to G.L. c. 211, § 3. [FN2] Watson seeks relief from a decision of the Appeals Court affirming a final judgment of the Probate and Family Court. L.W. v. S.W., 68 M... Gregory J. RATTA v. CIVIL SERVICE COMMISSION. , Mass.App.Ct., October 29, 2009 By the Court (KAFKER, KATZMANN & RUBIN, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 Gregory J. Ratta appeals from a Superior Court judgment upholding the Civil Service Commission's (commission) decision that the town of Watertown had just cause for his termination. We affirm. I. Background. Watertown employed Ratta from August, 1987, until January, 2002. Ratta held the position of skilled maintenance craftsperson (SMC) during the time at issue. Ratta performed his duties satisfactorily... COMMONWEALTH v. Robert NASSOR. , Mass.App.Ct., October 29, 2009 By the Court (BERRY, MILLS & RUBIN, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 The defendant was convicted of trafficking in fourteen grams or more of cocaine, G.L. c. 94C, § 32E, committing a school zone violation, G.L. c. 94C, § 32J , and illegal possession of both methadone and oxycodone, G.L. c. 94C, § 34. On appeal, he raises several claims of error. 1. Background. On February 28, 2003, Officer Michael Polston responded to a domestic disturbance at the Town Line Inn in Malden. ... COMMONWEALTH v. George WEST. , Mass.App.Ct., October 29, 2009 By the Court (LENK, GREEN & TRAINOR, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 We agree with the Commonwealth that the evidence of the defendant's 2006 assault against his wife was properly admitted, under the reasoning of Commonwealth v. Butler, 445 Mass. 568, 575-576 (2005), and the cases cited therein. [FN1] There was no error, much less a substantial risk of a miscarriage of justice. FN1. Moreover, as the Commonwealth correctly observes, we presume that the judge properly li... COMMONWEALTH v. OPTION ONE MORTGAGE COMPANY & another. [FN1]FN1. H & R Block Mortgage Corporation. , Mass.App.Ct., October 29, 2009 By the Court (COHEN, BROWN & MILLS, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 Upon review of the record appendix, the briefs, and supplemental filings, and in light of the teaching of Commonwealth v. Fremont Inv. & Loan, 452 Mass. 733, 750-752 (2008), nothing has been made to appear that would cause us to conclude the Superior Court judge abused his discretion or otherwise committed an error of law in entering a preliminary injunction in this matter. See generally Carabetta Enterprises,... COMMONWEALTH v. Michael DEXTER. , Mass.App.Ct., October 29, 2009 By the Court (LENK, KAFKER & RUBIN, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 The defendant was convicted of unarmed robbery. On appeal, he argues that his right to confrontation was violated and that the trial court erred in denying his motion to dismiss or suppress. 1. Background. On September 13, 2004, a man entered and robbed the Lowell Cooperative Bank. Pictures from surveillance cameras show the robber wearing a red baseball hat with a distinctive white swirl. Shortly thereafte... COMMONWEALTH v. Domenic COSTAGIOLA. , Mass.App.Ct., October 29, 2009 By the Court (McHUGH, VUONO & MEADE, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 The defendant was convicted on two charges of indecent assault and battery on a child under fourteen. Four witnesses presented testimony at a jury-waived trial. On appeal, the defendant argues that the trial judge improperly admitted testimony from three witnesses in violation of the "first complaint" rule. Commonwealth v. King, 445 Mass. 217, 242-244 (2005), cert. denied, 546 U.S. 1216 (2006). 1. Backgrou... Stephen W. CHAISSON v. Pamela J.R. CHAISSON. , Mass.App.Ct., October 29, 2009 By the Court (TRAINOR, BROWN & WOLOHOJIAN, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 The husband appeals from the May 2, 2008, judgment on the wife's January 3, 2008, complaint for contempt. We affirm. The October 19, 2007, divorce judgment provided that the parties' separation agreement of the same date was incorporated but not merged into the judgment, except for certain provisions not relevant to the present discussion. The separation agreement contained a number of provisions reg... Lisa McGONAGLE [FN1] & another [FN2]v. HOME DEPOT, U.S.A., INC. FN1. Individually and as representative of all persons similarly situated. FN2. Paul Cass, individually and as representative of all persons similarly situated., Mass.App.Ct., October 29, 2009 Consumer Protection Act, Unfair or deceptive act. Taxation, Sales tax. CIVIL ACTION commenced in the Superior Court Department on March 21, 2001. A motion for class certification was heard by Wendie I. Gershengorn, J., and motions for partial summary judgment were also heard by her; the remaining claim was heard by Bruce R. Henry, J., on motions for summary judgment. John P. Zavez for the plaintiffs. Beth I.Z. Boland (Doreen M. Rachal with her) for the defendant. Ben Robbins, Mart... COMMONWEALTH v. Daniel E. DUPONT. , Mass.App.Ct., October 29, 2009 Controlled Substances. Practice, Criminal, Jury and jurors, Empanelment of jury, Challenge to jurors, Hearsay. Evidence, Hearsay. INDICTMENT found and returned in the Superior Court Department on August 17, 2007. The case was tried before John A. Agostini, J. David M. Skeels, Committee for Public Counsel Services, for the defendant. James Petersen, Assistant District Attorney, for the Commonwealth. Present: Trainor, Smith, & Vuono, JJ. SMITH, J. The defendant, Daniel E. Du... COMMONWEALTH v. Brandon WATSON. , Mass., October 29, 2009 Constitutional Law, Identification, Assistance of counsel. Identification. Evidence, Identification, Expert opinion. Witness, Expert. Practice, Criminal, Assistance of counsel, Request for jury instructions. INDICTMENTS found and returned in the Superior Court Department, four on June 7, 2006, and one on June 30, 2006. A pretrial motion to suppress evidence was heard by C. Jeffrey Kinder, J.; the cases were tried before him, and a motion for a new trial, filed on September 8, 2008, was hea... James JOHNSON v. Pompeo RUFO. , Mass.Super., October 28, 2009 MEMORANDUM OF DECISION AND ORDER ON (1) DEFENDANT POMPEO RUFO'S MOTION FOR SUMMARY JUDGMENT, AND (2) DEFENDANT'S MOTION TO STRIKE CERTAIN MATERIALS SUBMITTED BY PLAINTIFF IN OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT PETER M. LAURIAT, Justice. In this negligence action, James Johnson ("Johnson"), seeks to recover damages from his former landlord, Pompeo Rufo ("Rufo"), for injuries he suffered while using a power table saw inside his apartment in Rufo's apartment building. The compl... CAPSTONE BUILDING & CONSTRUCTION, LLC v. Donna PAYNE. , Mass.Super., October 28, 2009 MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION FOR LEAVE TO FILE THIRD- PARTY COMPLAINT PETER M. LAURIAT, Justice. On December 24, 2008, the plaintiff, Capstone Building & Construction LLC ("Capstone"), brought this action against the defendant, Donna Payne ("Payne"), pursuant to G.L. c. 142A, § 4, seeking a de novo trial after an arbitrator's decision. Payne has now moved, pursuant to Mass.R.Civ.P. 14, for leave to file a third-party complaint against one Peter Cahill ("Cahill"), as... Pamela SEGUIN v. Sandra JETTE. , Mass.App.Ct., October 28, 2009 By the Court (KATZMANN, SMITH & VUONO, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 The defendant, Sandra Jette, appeals from a decision of the Probate and Family Court that awarded $62,500 to her sister, the plaintiff, Pamela Seguin, and ordered the partition by sale of property owned by the parties. We affirm. I. Background. The case centers on property that was owned by Roger Jette (Mr. Jette), the father of the parties. In 1996, Mr. Jette executed a deed for the property that grante... Linda GARGAN'S CASE. , Mass.App.Ct., October 28, 2009 By the Court (BERRY, KAFKER & GRAINGER, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 The city of Lowell (city) [FN1] appeals from a decision of the reviewing board (board) of the Department of Industrial Accidents, which summarily affirmed an administrative judge's findings that Linda Gargan's (employee) industrial accident on April 7, 2003, caused her permanent and total incapacity for work from January 6, 2006, to the present and forseeable future. [FN2] The city was ordered to pay G.L... James DICKEY v. James WARREN. , Mass.App.Ct., October 28, 2009 "Anti-SLAPP" Statute. Constitutional Law, Right to petition government, Libel and slander. Libel and Slander. CIVIL ACTION commenced in the Superior Court Department on September 26, 2006. A special motion to dismiss was heard by Peter M. Lauriat, J. James Dickey, pro se. Erin Whelan Pennock for the defendant. Present: Perretta, Duffly, & Grainger, JJ. [FN1] PERRETTA, J. James Dickey, the former landlord of James Warren, brought an action in the Superior Court alleging that Warre... COMMONWEALTH v. Jovani JEUDY. , Mass.App.Ct., October 28, 2009 Holding: The Appeals Court, Perretta, J., held that police officers had a reasonable suspicion that juvenile was involved in criminal activity and, thus, were justified in making an investigatory stop. Affirmed. Search and Seizure, Pursuit, Reasonable suspicion. Constitutional Law, Search and seizure, Investigatory stop, Reasonable suspicion. Firearms. COMPLAINTS received and sworn to in the Suffolk County Division of the Juvenile Court Department on November 1, 2005. INDICTMENT found and ... David IPPOLITO & another [FN1]FN1. Darlene Ippolito v. BRADFORD VILLAGE CONDOMINIUM TRUST & others. [FN2]FN2. Property Management of Andover, Inc., Paul F. Lavallee D/B/A Lavallee Landscaping. , Mass.Super., October 27, 2009 MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT JOHN T. LU, Justice. INTRODUCTION The plaintiff David Ippolito (Mr. Ippolito) injured his arm falling on an ice covered walkway owned by Bradford Village Condominium Trust and Property Management of Andover, Inc. (Bradford Village). [FN3] Mr. Ippolito alleges that the injury was caused by the negligent failure of Bradford Village and Paul F. Lavallee d/b/a Lavallee Landscaping (Mr. Lavallee) to clear the walkway of acc... Sheila ORTA-TELLADO, administatrix [FN1]FN1. Of the estate of Barbara Orta-Ruiz. v. Saurin PATAL & another. [FN2]FN2. Sunit Mukherjee. , Mass.App.Ct., October 27, 2009 By the Court (LENK, KANTROWITZ & HANLON, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 In this medical malpractice action, the jury returned a verdict for the defendants. [FN3] The plaintiff appealed the ensuing judgment, claiming that the judge committed reversible error by excluding from evidence a package insert from a box containing a medical device that was admitted in evidence as a device similar to the one used on the decedent and by excluding questions based on this insert. We affir... John DOE v. Jane DOE. , Mass.App.Ct., October 27, 2009 By the Court (LENK, KANTROWITZ & HANLON, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 John Doe (father) brought this action against Jane Doe (mother) to (1) establish his paternity of the minor female child born in 2002; (2) gain sole legal and physical custody of the child; and (3) be allowed to remove the child to Connecticut. The mother and father were never married to each other and their daughter was born when the mother was married to and living with another. After trial, judgment en... Henry F. MEUDT v. Peter A. DUS & others. [FN1]FN1. Peter D. Gillett; Viola M. Gillett; Art Jensen, as trustee of 92 Tower Mountain Road Realty Nominee Trust; Paul H. Hyde, III, as trustee of Tower Mountain Nominee Trust; the town of Hancock; and th, Mass.App.Ct., October 27, 2009 By the Court (TRAINOR, SMITH & VUONO, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 On April 29, 2005, Henry F. Meudt filed a complaint in the Land Court against the defendants. In the complaint, Meudt claimed that he and some of the defendants each own parcels of land abutting a portion of Tower Mountain Road (road) in defendant town of Hancock (town). According to Meudt, as a result of a vote at a 1946 town meeting, a section of the road was legally discontinued as a public way, pursuant ... COMMONWEALTH v. Michael BRACE. , Mass.App.Ct., October 27, 2009 By the Court (LENK, KANTROWITZ & HANLON, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 In this consolidated appeal, the defendant appeals from the revocation of his probation and the denial of his motion for new trial based upon the revocation of his probation. On appeal, the defendant claims error in several respects. Through appellate counsel, he contends that trial counsel was ineffective and, pursuant to Commonwealth v. Moffet, 383 Mass. 201 (1981), that the probation surrender was inje... Bruce CHESLEY v. EASTERN BANK. , Mass.App.Ct., October 27, 2009 By the Court (PERRETTA, [FN9] MILLS & RUBIN, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 The decedent's son and the son's bankruptcy trustee filed affidavits of objections to the probate of the decedent's will which were stricken by the judge. The contestant now appeals from the allowance of the motion to strike the affidavits of objections, the denial of a motion for reconsideration of the motion to strike, and the entry of the decree allowing probate of the will. We affirm on the basis ... CARE AND PROTECTION OF THOMASINA (and a companion case [FN1]). FN1. Care and Protection of Neil. The children's names are pseudonyms. , Mass.App.Ct., October 27, 2009 Moot Question. Statute, Construction. Adoption, Care and protection, Dispensing with parent's consent. Parent and Child, Care and protection of minor. Practice, Civil, Appointment of guardian. Evidence, Child custody proceeding. Minor, Care and protection, Adoption, Visitation rights. PETITIONS filed in the Middlesex County Division of the Juvenile Court Department on September 14, 2006. The cases were heard by Margaret S. Fearey, J. Brad P. Bennion for the mother. Patrick J. Roache,... COMMONWEALTH v. Mario CHERY. , Mass.App.Ct., October 27, 2009 Holdings: The Appeals Court held that: (1) trial court violated defendant's right to confrontation by admitting ballistics certificates without the live testimony of the certifying ballistician, and (2) error was not harmless beyond a reasonable doubt. Reversed and remanded. Rose E. King for the defendant. Janis DiLoreto Noble, Assistant District Attorney, for the Commonwealth. RESCRIPT. [1] The defendant was convicted of one count of unlawful possession of a firearm and o... Steven ELDRIDGE, executor [FN1] & another [FN2]FN1. Of the estate of his father, Ralph C. Eldridge. FN2. Barbara A. Clary, Steven Eldridge's mother. v. Dorothy E. ST. PIERRE & others. [FN3]FN3. John Mahoney, Dorothy St. Pierre's e, Mass.App.Ct., October 26, 2009 By the Court (BERRY, KAFKER & GRAINGER, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 The plaintiffs have appealed from a judgment in the Superior Court following a jury verdict. The judgment declares the defendants John Mahoney (John) and Dorothy St. Pierre (collectively referred to as Mahoneys) to be equal coowners with the plaintiffs of the property at 18-18 1/2 Bisson Street, Beverly, and further orders that the deed to the property be corrected to reflect this. Following the entry o... Michael J. D'AMBROSIO, Jr. & others [FN1]FN1. The parties aligned against the defendant Milgroom include the estate of Lillian D'Ambrosio, the surviving joint owners of various United States securities (the Treasury Direct securities) and various jo, Mass.App.Ct., October 26, 2009 By the Court (GRASSO, FECTEAU & HANLON, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 In this appeal, we consider the claim of Robert Milgroom that a judge of the Probate and Family Court erred in concluding that Milgroom breached his fiduciary duties and converted various assets of his late wife, Lillian D'Ambrosio, totaling more than $2 million dollars. The judge ordered Milgroom to return all of the converted funds to Lillian's estate. We also consider the cross appeal of the equitable d... COMMONWEALTH v. Shawn NIXON. , Mass.App.Ct., October 26, 2009 By the Court (GRASSO, FECTEAU & MILKEY, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 In this appeal from convictions of distribution of a class B substance and a school zone drug violation, we need address only the defendant's arguments that (1) the Commonwealth provided insufficient evidence to support his convictions; and (2) admission of a drug certificate, over objection, violated his right to confront and cross-examine the witnesses against him. [FN1] We conclude that the Commonwealt... COMMONWEALTH v. Patrick JOHNSON. , Mass.App.Ct., October 26, 2009 Holdings: The Appeals Court held that: (1) possession with intent to distribute was lesser included offense of trafficking and was therefore duplicative; and (2) case would be remanded to allow trial court to decide which charge to dismiss. Denial of suppression motion affirmed; case remanded. Brown, J., filed a concurring opinion. William W. Adams, Plainfield, for the defendant. Ellyn H. Lazar-Moore, Assistant District Attorney, for the Commonwealth. RESCRIPT. The def... Deborah Sean DUNN [FN1]v. CITY OF BOSTON. FN1. Formerly known as Deborah Condon., Mass.App.Ct., October 26, 2009 Statute, Construction. Massachusetts Tort Claims Act. Negligence, Municipality. Municipal Corporations, Liability for tort. Words, "Recreational user." CIVIL ACTION commenced in the Superior Court Department on March 22, 2004. The case was heard by Margot Botsford, J., on a motion for summary judgment. J. Michael Conley for the plaintiff. Elizabeth L. Bostwick, Assistant Corporation Counsel, for the defendant. Present: Lenk, Kafker, & Rubin, JJ. LENK, J. The plaintiff, injure... CITIBANK SOUTH DAKOTA N.A. v. Alan L. GRENIER. , Mass.App.Div., October 23, 2009 In the Salem Division, Docket No. 0636-CV-0739, Cornetta, J. No brief filed, for plaintiff. Alan L. Grenier, Esq., Grenier & Associates, Danvers, MA, for defendant. Before COVEN, CURTIN & BRANT, JJ. OPINION COVEN, J. This is a Dist./Mun. Cts. R.A.D.A. 8A appeal by defendant Alan L. Grenier ("Grenier"), a practicing attorney licensed in this Commonwealth, of the summary judgment entered for the plaintiff, Citibank South Dakota N.A. ("Citibank"). On June 30, 2006, Citibank commenced... Dianne CHURCHILL a/k/a Dianne Churchill Nieboer, Plaintiffs v. Janet P. MURPHY, as Trustee of Fish Lane Realty Trust, and Nancy Sevrens, Dale Waine, Michael J. O'Mara, Kerim Koseatac, and Edward Toole, as they are members of the Nantucket Zoning Bo, Mass.Land Ct., October 23, 2009 DECISION KARYN F. SCHEIER, Chief Justice. This case, filed July 3, 2008, represents the second time the property located at 5 Spring Street, Nantucket (Trust Property) has been the subject of a case in this court. In this action, brought pursuant to G.L. c. 40A, § 17, Plaintiff, who owns property abutting the Trust Property, appeals a decision of the Nantucket Zoning Board of Appeals (Board) granting an application for a special permit to Defendant Murphy to construct a residence on the Trust... Corinne SAPAH-GULIAN, Plaintiff, v. Stephen R. LOMANNO, Trustee of the 44 Naushon Circle Realty Trust, Darrell MacLean, and Lisa M. MacLean, Defendants. , Mass.Land Ct., October 23, 2009 DECISION ALEXANDER H. SANDS, III, Justice. Plaintiff Corinne Sapah-Gulian filed her unverified Complaint on January 29, 2007, seeking this court's interpretation of a view easement pursuant to G.L. c. 185, § 1(k). Defendants filed their Answer on April 6, 2007. A case management conference was held on April 10, 2007. Plaintiff filed her Motion for Summary Judgment on May 1, 2008, together with supporting memorandum, Appendix, and Affidavits of Corinne Sapah-Gulian, Randolph Sapah-Gulian and J... Corinne SAPAH-GULIAN, Plaintiff, v. Stephen R. LOMANNO, Trustee of the 44 Naushon Circle Realty Trust, Darrell MacLean, and Lisa M. MacLean, Defendants. , Mass.Land Ct., October 23, 2009 JUDGMENT SANDS, J. Plaintiff Corinne Sapah-Gulian filed her unverified Complaint on January 29, 2007, seeking this court's interpretation of a view easement pursuant to G.L. c. 185, § 1(k). Defendants filed their Answer on April 6, 2007. A case management conference was held on April 10, 2007. Plaintiff filed her Motion for Summary Judgment on May 1, 2008, together with supporting memorandum, Appendix, and Affidavits of Corinne Sapah-Gulian, Randolph Sapah-Gulian and J.E. Landers-Cauley ("Lan... Dianne CHURCHILL a/k/a Dianne Churchill Nieboer, Plaintiffs v. Janet P. MURPHY, as Trustee of Fish Lane Realty Trust, and Nancy Sevrens, et al, as they are members of the Nantucket Zoning Board of Appeals, Defendants. , Mass.Land Ct., October 23, 2009 JUDGMENT OF DISMISSAL SCHEIER, C.J. In this action brought pursuant to G.L. c. 40A, § 17, filed July 3, 2008, Plaintiff appeals a decision of the Nantucket Zoning Board of Appeals (Board), granting Defendant Murphy's application for a special permit to construct a residence on property at 5 Spring Street, Nantucket, which abuts Plaintiff's property. A one-day trial was held on March 17, 2009. A decision of today's date has issued, in which the court held that Plaintiff does not have standing ... COMMONWEALTH v. Darren WILSON. , Mass.App.Ct., October 23, 2009 By the Court (BERRY, KAFKER & GRAINGER, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 The defendant, Darren Wilson, appeals from his convictions on seven indictments: three charging incest, three charging rape of a child, and one charging indecent assault and battery on a child under fourteen years of age. The victim is his biological daughter, Amy. [FN1] He contends that the admission of certain testimony violated the principles of the first complaint doctrine enunciated in Commonwealth v.... BROCKTON AREA MULTI-SERVICES, INC. v. BUILDING INSPECTOR OF EAST BRIDGEWATER. , Mass.App.Ct., October 23, 2009 By the Court (BERRY, KAFKER & GRAINGER, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 Robert Lundberg, in his capacity as building inspector for the town of East Bridgewater (town) appeals the grant of summary judgment in favor of Brockton Area Multi-Services, Inc. (BAMSI). The underlying legal dispute concerns BAMSI's use of the third floor of its building located in the town and used by BAMSI for educational purposes. Background. We summarize the pertinent undisputed facts. BAMSI is a ... COMMONWEALTH v. Johnny LACOURT. , Mass.App.Ct., October 23, 2009 By the Court (DUFFLY, MILLS & MEADE, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 A Superior Court jury convicted the defendant of illegal possession of a firearm and illegal possession of ammunition, and he then pleaded guilty to being an armed career criminal. The defendant's motion for a new trial was denied without hearing by the motion judge, who was also the trial judge. On appeal, as he did in his motion, the defendant claims that his counsel was ineffective for having failed to mov... COMMONWEALTH v. Sudky S. KAMAL. , Mass.App.Ct., October 23, 2009 By the Court (BERRY, KAFKER & GRAINGER, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 The defendant was convicted of indecent assault and battery on a person the age of fourteen or over, G.L. c. 265 § 13H, after a jury trial in the District Court. His substantive appeal and his appeal from the denial of his motion for a new trial have been consolidated. He asserts insufficiency of the evidence and ineffective assistance of counsel. We affirm. 1. Sufficiency of the evidence. For the reaso... Paige B. SCYOCURKA v. BANK OF AMERICA, N.A. , Mass.App.Ct., October 23, 2009 By the Court (DUFFLY, MILLS & MEADE, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 This is the plaintiff's appeal orders and a judgment under G.L. c. 184, § 15, dissolving the memorandum of lis pendens on a 187 acre parcel of land located on West Street in Ludlow, and allowing the defendant's special motion to dismiss the complaint on a finding that the plaintiff's claims were "frivolous and devoid of any arguable basis in law." In her complaint the plaintiff had sought reformation of a mor... COMMONWEALTH v. Paul T. SHARP. , Mass.App.Ct., October 23, 2009 By the Court (McHUGH, COHEN & SIKORA, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 We are unpersuaded by the defendant's arguments. It is doubtful that any of Howard's testimony would have been admissible. His views and opinions that the victim had "set up" the defendant were clearly inadmissible opinions. The victim's alleged statements to Howard about wanting to have sex with him, if admissible at all in light of the rape-shield statute, see G.L. c. 233, § 21B, were of minuscule probativ... © 2009 West, a Thomson business Westlaw Integration Solutions  /  Westlaw.com