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B18 | Massachusetts Lawyers Weekly | September 25, 2006 Subscribe Today - Call 1-800-451-9998 www.masslawyersweekly.com | Cite this page 35 MLW 290 Continued from page B17 Garaghan, Jennifer L. Stewart and Carol E. Head for the plaintiff; Richard C.McFarland for Commissioner of Correction; Derek L.Gaubatz, Lisa Pirozzolo and Steven P. Lehotsky, for Becket Fund for Religious Liberty and another, amici curiae, submitted a brief (Docket No. SJC- 09617) (April 7, 2006). Religious freedom - Muslim faith Where the defendant Department of Correction and two of its codefendant officials were awarded summary judgment in a suit brought by a plaintiff Muslim inmate who alleged infringement of his right to the free exercise of his religion, the judgment should be affirmed because “the record reflects that the defendants attempted to accommodate the religious needs and requests of inmates practicing the Muslim faith, within bounds that they reasonably concluded were lawful and necessary to maintain the secure and efficient operation of the prison.” Ahmad v. Department of Correction, et al. (Lawyers Weekly No. 10-060-06) (14 pages) (Cordy,J.) (SJC) Case heard by Kern,J.,on a motion for summary judgment. Neil McGaraghan and Katherine W. Grearson for the plaintiff; Richard C.McFarland for the defendants (Docket No. SJC-09477) (April 7, 2006). Transfer of pretrial detainees Where a Superior Court judge,at the request of the Worcester district attorney, ordered the transfer of pretrial detainees from a county jail to a state correctional facility, this order was impermissible under G.L.c. 276, §52A and must accordingly be vacated. Commissioner of Correction v.Superior Court Department of the Trial Court for the County of Worcester,et al.(Lawyers Weekly No.10-035- 06) (8 pages) (Cordy, J.) (SJC) Case reported by Cordy, J., sitting as single justice. William D. Saltzman for the plaintiff; Ellyn H.Lazar-Moore for the District Attorney for the Middle District (Docket No. SJC-09634) (Feb. 27, 2006). Products liability ‘Sophisticated user’defense Where a jury returned a verdict for the defendant bungee cord manufacturer in a product liability case,the verdict should be affirmed, as the trial judge corrected gave the jury a “sophisticated user” instruction. Carrel v.National Cord & Braid Corp.(Lawyers Weekly No.10-135-06) (30 pages) (Cordy,J.) (SJC) Case tried before Brady,J.,in Superior Court.Edward T. Dangel III for the plaintiff; Ralph C. Sullivan and Richard W. Jensen for the defendant (Docket No. SJC-09541) (Aug. 15, 2006). Real property Historic district - Exemption Where an ordinance was enacted in 1972 exempting from the Springfield Historical Commission’s authority all property owned by the Springfield Library and Museum Association and Roman Catholic Bishop of the Diocese of Springfield,we hold that the exemption applies only to property acquired by the time the ordinance was enacted. Springfield Preservation Trust, Inc. v. Springfield Library and Museums Association, Inc., et al. (Lawyers Weekly No. 10-134-06) (33 pages) (Sosman, J.) (Ireland, J., with whom Spina and Cowin,JJ.,join,concurring in part and dissenting in part) (SJC) Case heard by McDonald,J.,on motions for summary judgment and a motion for partial summary judgment. Mark D. Mason for Springfield Library & Museums Association,Inc.; John J.Egan for Roman Catholic Bishop of Springfield; John Egnal and Terry Scott Nagel for the plaintiff (Docket No.SJC-09600) (Aug.14,2006). Implied easement Where (1) plaintiffs,who own lots in an Oak Bluffs subdivision,sought a judgment that four parcels of subdivision land designated as parks are burdened with an easement in the plaintiffs’ favor and (2) a Land Court judge rejected the plaintiffs’ request, we conclude that the judge erred, as evidence indicates that an implied easement exists with respect to the parks. Reagan,et al.v.Brissey,et al.(Lawyers Weekly No. 10-058-06) (16 pages) (Greaney, J.) (SJC) Case heard by Scheier, J., on motions for summary judgment. Daniel C. Perry for the plaintiffs; Ronald H. Rappaport for the defendant town of Oak Bluffs; Kenneth L. Kimmel for defendant Louise Brissey, et al. (Docket No. SJC- 09630) (April 4, 2006). Restrictions - Specificity - Extension Where a plaintiff trust filed suit claiming to be a beneficiary of a restriction on the defendants’ land, a declaratory judgment in the defendants’ favor must be affirmed because (1) the restriction does not specifically mention either the plaintiff nor its land and (2) the restriction was not lawfully extended beyond its specified duration. Brear v.Fagan,et al.(Lawyers Weekly No.10- 104-06) (16 pages) (Sosman, J.) (SJC) Case heard by Lombardi, J., in Land Court. Donald K. Freyleue for the plaintiff; Michael P. McCarron for the defendants (Docket No. SJC-09657) (June 19, 2006). Title dispute - Civil rights violation Where a title dispute arose between the plaintiff and defendants over a triangular parcel located between their Marshfield properties, we hold that a judge acted permissibly on the evidence in ruling (1) that an escrow agreement concerning transfer of the parcel in question from the plaintiff to the defendants was enforceable and (2) that delivery of the relevant deed effectively conveyed title to the defendants. Haufler,trustee,v.Zotos,et al.(Lawyers Weekly No. 10-063-06) (29 pages) (Marshall, C.J.) (SJC) Case heard by Hely, J., in the Superior Court. J. Gavin Cockfield for the plaintiff; Robert E. Kelley for the defendants (Docket No. SJC-09502) (April 12, 2006). Retirement Criminal convictions - Forfeiture Where a clerk-magistrate of the Boston Juvenile Court has been convicted of criminal offenses, he has forfeited his entitlement to a retirement allowance as a member of the state employees’ retirement system. State Board of Retirement v. Bulger, et al. (Lawyers Weekly No. 10-037-06) (17 pages) (Spina, J.) (SJC) Case reported by Sosman, J., sitting as single justice.Grace H.Lee,Nicola Favovito and Rehana Thomas for the plaintiff; Paul T. Hynes and Catherine A.Highet for John P.Bulger (Docket No. SJC-09494) (March 6, 2006). Public employee - Forfeiture vote Where (1) the plaintiff State Board of Retirement voted to implement the pension forfeiture provisions of G.L.c. 32, §15(4), against a defendant former state representative who had been convicted in federal court of mail fraud, wire fraud,interstate travel to commit bribery and conspiracy to commit those crimes and (2) a state district court judge subsequently ruled that the vote was time-barred, we hold that the judge erred, as pension forfeiture proceedings under §15(4) are not subject to any statute of limitations. State Board of Retirement,et al.v.Woodward, et al.(Lawyers Weekly No.10-084-06) (15 pages) (Spina, J.) (SJC) Case reported by Spina, J., sitting as single justice. Peter Sacks for the plaintiffs; Edward J. McCormick II and Elizabeth Maitland for defendant Francis Woodward (Docket No. SJC-09575) (May 15, 2006). Search and seizure Drug-sniffing dog - Police stop Where a defendant has been convicted of cocaine trafficking, the conviction should be affirmed, as the use of a drug-sniffing dog to detect cocaine in the defendant’s car, after the car had been pulled over by the police,was not unconstitutional. Commonwealth v.Feyenord (Lawyers Weekly No. 10-146-05) (35 pages) (Cordy, J.) (Greaney, J., concurring) (Marshall, C.J., joined by Ireland, J., dissenting) (SJC) Pretrial motion to suppress evidence was heard by Hillman,J.; case tried before him. Michael J. Traft for the defendant; Michelle R. King for the commonwealth (Docket No. SJC-09410) (Sept. 2, 2005). Unexcused absence - Waiver Where a narcotics defendant failed to appear at the scheduled hearing on his suppression motion, a judge acted improperly in ruling the motion automatically waived. Having said this, we direct that the judge’s order be vacated and the case remanded for a hearing on the motion. We go on today to rule that it would have been within the judge’s discretion in the present case to find that the defendant had waived his right to be present at the suppression hearing and to conduct the hearing without him. Robinson v.Commonwealth (Lawyers Weekly No. 10-166-05) (16 pages) (Spina, J.) (SJC) Case was reported by Cowin, J., sitting as Single Justice.James S.Murphy for the defendant; Carolyn A. Burbine for the commonwealth (Docket No. SJC-09425) (Nov. 14, 2005). Securities IPO - Broker’s liability - Reliance damages - G.L.c. 93A Where plaintiffs filed suit alleging that they lost $12 million when the defendant brokerage firm failed to allocate shares to the plaintiffs in connection with a company’s initial public offering,a judge committed no error in awarding the defendant summary judgment on the plaintiffs’ contract claim, as the parties’ oral agreement contained an implicit condition precedent that was not met. We go on to affirm the judge’s decision to award the plaintiffs reliance damages on a misrepresentation claim plus treble damages and counsel fees on a G.L.c. 93A count. Twin Fires Investment, LLC, et al. v. Morgan Stanley Dean Witter & Co.,et al.(Lawyers Weekly No.10-179-05) (32 pages) (Marshall,C.J.) (SJC) Case heard by Gants,J.,in Superior Court.Robert D.Friedman,Susan E.Stenger and Andrew F.Caplan for the plaintiffs;William Pratt,Eric F.Leon, David I. Horowitz (of New York), John R. Snyder and Carol E.Head for the defendants (Docket No. SJC-09406) (Nov. 30, 2005). Taxation Real estate - Exemption - Veterans - Residency requirement Where a state law, which grants certain disabled veterans a partial real estate tax exemption, contains a residency requirement limiting the exemption to veterans who have resided in Massachusetts “for five consecutive years next prior to date of filing for exemptions,”we hold that the residency requirement does not violate (1) the equal protection and privileges and immunities clauses of the Fourteenth Amendment to the U.S.Constitution or (2) Part 1,article 6 of the Declaration of Rights of the Massachusetts Constitution. Sylvester v. Commissioner of Revenue, et al. (Lawyers Weekly No. 10-167-05) (16 pages) (Greaney, J.) (SJC) Case heard by Hines, J., on motions for summary judgment. Joel Z. Eigerman for the plaintiff; Thomas A. Barnico and Daniel J. Hammond for the defendant Commissioner of Revenue; Bryan R. LeBlanc for the defendant town of Danvers (Docket No. SJC- 09486) (Nov. 16, 2005). Tort Limitations - Sexual misconduct - Fiduciary duty Where a plaintiff filed suit alleging that the defendant counsellor breached his fiduciary duty by engaging in a sexual relationship with the plaintiff, a judgment for the defendant should be affirmed based on the three-year statute of limitations. Doe v. Harbor Schools, Inc., et al. (Lawyers Weekly No. 10-041-06) (26 pages) (Marshall, C.J.) (SJC) Case heard by Grasso, J., on motions for summary judgment. Michael D.Riseberg and Brian R. Birke for Harbor Schools, Inc.; Richard J.Fallon for the plaintiff (Docket No.SJC-09566) (March 14, 2006). Nuisance Where a defendant (1) placed along the borderline separating his property from that of a plaintiff neighbor construction debris and other items,including portable toilets and an office trailer,(2) often landed a helicopter near the borderline and (3) held youth parties of 150-200 people on his property, we hold that the defendant engaged in activities on his property creating or maintaining unreasonable aesthetic conditions for the plaintiff neighbor and that such actions were actionable as a private nuisance. Rattigan, trustee, et al. v. Wile, individually and as trustee (Lawyers Weekly No.10-020-06) (21 pages) (Cowin,J.) (SJC) Case heard by Staffier, J., in the Superior Court. Sander A. Rikleen and John J. Griffin Jr. for the defendant; John Connolly Jr. and Kevin P. Geaney for the plaintiffs (Docket No. SJC-09479) (Jan. 25, 2006). Uniform Anatomical Gift Act - Consent - ‘Good faith’ Where the plaintiffs allege that, in connection with their attempt to donate the tissues of their deceased son for transplantation,the defendants (the New England Organ Bank and New England Eye & Tissue Bank) violated the Uniform Anatomical Gift Act, an award of summary judgment for the defendants should be affirmed, as the statute’s “good faith” provision precludes liability with respect to the sole instance of statutory noncompliance identified by the plaintiffs — a failure by the defendants’ agent to make a voice recording of the plaintiffs’ consent by telephone to organ and tissue donation. Carey, et al. v. New England Organ Bank, et al. (Lawyers Weekly No. 10-045-06) (24 pages) (Cowin, J.) (SJC) Case heard by Lowy, J., on a motion for summary judgment. Roy F. Gelineau and Anthony Kline for the plaintiffs; Pamela S. Gilman and Andrew R. Weiner for New England Organ Bank; Brian Sullivan, for New England Eye & Tissue Transplant Bank and another, was present but did not argue (Docket No. SJC-09504) (March 15, 2006). Wrongful death - Cigarettes Where a Superior Court judge dismissed a wrongful death action which (1) was brought against a cigarette manufacturer and (2) was predicated on breach of the warranty of merchantability,we hold that the dismissal was improper and reverse it. Haglund,executrix,v.Philip Morris Incorporated (Lawyers Weekly No. 10-088-06) (22 pages) (Marshall, C.J.) (SJC) Motion to strike heard by Kern, J., and entry of judgment of dismissal ordered by her. Stephen R. Fine and Charles M. Healey III for the plaintiff; Paul E. Nemser and Roberto M. Braceras for the defendant; David R. Geiger, Ashley A. Weaver and Jonathan M. Harrison, on brief, for amicus curiae Products Liability Advisory Council, Inc.; Edward L. Sweda Jr., on brief, for amicus curiae Tobacco Control Resource Center,Inc.(Docket No. SJC-09483) (May 18, 2006). Unemployment compensation Taxation - Religious exemption Where a plaintiff claims that he was wrongfully denied unemployment benefits, his appeal must fail on the ground that the employer, a religious school, is not subject to the state unemployment tax statute. Bleich v. Maimonides School, et al. (Lawyers Weekly No.10-101-06) (15 pages) (Marshall,C.J.) (SJC) Case heard by Zaleski, J., in District Court.
Cite this page 35 MLW 291 | www.masslawyersweekly.com Subscribe Today - Call 1-800-451-9998 September 25, 2006 | Massachusetts Lawyers Weekly | B19 Michael Magerer for the plaintiff;Michael R.Coppock for Maimonides School; James J. Arguin for Division of Unemployment Assistance (Docket No. SJC-09520) (June 16, 2006). Wills and trusts Bank accounts - Estate property Where an administratrix seeks a judgment declaring that the testatrix’s estate includes the funds in two Massachusetts bank accounts,the complaint should be dismissed without prejudice because the requested relief appears not to be necessary. Florio v.Florio,et al.(Lawyers Weekly No.10- 147-05) (5 pages) (Rescript) (SJC) M. David Blake and Carolyn Martello for the plaintiff (Docket No. SJC-09414) (Sept. 2, 2005). ‘GRATs’- Reformation Where the settlor of “grantor retained annuity trusts”seeks reformation of the trusts in light of a 2003 U.S. Tax Court decision, the reformation request should be granted in light of the settlor’s intent concerning her estate tax liability. Freedman, et al. v. Freedman, et al. (Lawyers Weekly No. 10-155-05) (4 pages) (Rescript) (SJC) Appealed from a decision by Greaney, J., sitting as single justice.Morris Robinson and Peter W. KortKamp, for the plaintiffs, submitted a brief (Docket No. SJC-09475) (Sept. 20, 2005). Reformation - Generation-skipping tax Where the trustee and settlors of an irrevocable trust seek reformation of the trust,the reformation should be allowed so as to carry out the settlors’intentions regarding tax consequences. Inderieden, et al. v. Downs, et al. (Lawyers Weekly No. 10-156-05) (3 pages) (Rescript) (SJC) Case reported by LaPointe, J., of the Probate & Family Court. Mark S. Gold submitted a brief for the plaintiffs (Docket No.SJC-09481) (Sept. 21, 2005). Reformation - Settlors’intent Where the settlors, trustees and beneficiaries seek reformation of an irrevocable trust,the request should be granted based on evidence that,because of scrivener’s errors,the trust document does not reflect the settlors’ intent. Ryan, et al. v. Ryan, et al. (Lawyers Weekly No. 10-100-06) (3 pages) (Rescript) (SJC) Case reported by Kagan, J., in the Probate & Family Court. Virginia Ann Brophy, for the plaintiff, submitted a brief (Docket No. SJC-09653) (June 16, 2006). Reformation of trust - Taxes Where a trustee of a revocable family trust seeks reformation, that request should be granted in light of the settlor’s intentions regarding estate tax liability. Grassian v. Grassian, et al. (Lawyers Weekly No. 10-162-05) (3 pages) (Rescript) (SJC) Case reserved and reported by Spina, J.,sitting as single justice. Ann P. Hochberg, Neil L. Cohen and J. James Park for the plaintiff (Docket No. SJC- 09423) (Oct. 14, 2005). Trust reformation Where reformation has been sought of a qualified personal residence trust,we conclude that reformation should be allowed in order to effectuate the settlor’s intent. Van Riper v.Van Riper, et al. (Lawyers Weekly No.10-153-05) (2 pages) (Rescript) (SJC) Case reserved and reported by Ireland, J., sitting as single justice.Domenic P.Aiello submitted a brief for the plaintiff (Docket No. SJC-09506) (Sept. 14, 2005). Workers’ compensation Benefit calculation - ‘Average weekly wages’ Where “average weekly wages” must be determined for a union worker who has been injured on an entirely union public works project and is seeking workers’ compensation benefits, we hold that the plain language of the applicable statutes [G.L.c. 152, §1(1) and G.L.c. 149, §§26 and 27] requires that “employer payments into health and welfare plans, pension plans and supplemental unemployment benefits (fringe benefits)” be included in determining the employee’s average weekly wages. William McCarthy’s Case (Lawyers Weekly No.10-177-05) (30 pages) (Ireland,J.) (Sosman, J., joined by Marshall, C.J., and Cordy, J., concurring) (SJC) Appealed from a decision of the Industrial Accidents Reviewing Board.Myles W. McDonough and Mark H. Likoff for the insurer; Michael C. Akashian for the employee; Timothy Wilton submitted a brief for John Fleming, et al., amici curiae; Karen S. Hambleton submitted a brief for Massachusetts Academy of Trial Attorneys, amicus curiae (Docket No. SJC- 09421) (Nov. 23, 2004). Jurisdiction - Suit under G.L.c. 93A Where plaintiffs initiated suit under G.L.c. 93A,claiming alleged violations of G.L.c.176D by the defendants in their handling of the plaintiffs’ claims for workers’ compensation benefits,a Superior Court judge acted correctly in dismissing the suit due to a lack of subject matter jurisdiction. Fleming,et al.v.National Union Fire Insurance Company,et al.(Lawyers Weekly No.10-176-05) (15 pages) (Spina,J.) (SJC) Case heard by Troy,J., on a motion to dismiss. Timothy Wilton for the plaintiffs;Myles W.McDonough for the defendants (Docket No. SJC-09415) (Nov. 23, 2005). Zoning Standing - Diminution in value Where the Appeals Court concluded that the plaintiff abutters had standing to challenge the issuance of a comprehensive permit for the construction of affordable housing, this was error,as the diminution of the plaintiffs’property values is insufficient to establish standing under G.L.c. 40B. Standerwick,et al.v.Zoning Board of Appeals of Andover,et al.(Lawyers Weekly No.10-099-06) (26 pages) (Marshall,C.J.) (SJC) Case heard by Whitehead,J.,on a motion for summary judgment.Kevin P. O’Flaherty for Avalon at St. Clare, Inc.; Andrew A.Caffrey Jr.for the plaintiffs;Thomas J.Urbelis,for Zoning Board of Appeals of Andover, was present but did not argue;the following submitted briefs for amici curiae: Michael Pill,pro se; R.Jeffrey Lyman, Michael K. Murray and Adam Hollingsworth for Greater Boston Real Estate Board and others (Docket No. SJC-09635) (June 16, 2006).
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