GRAINGER, J. This appeal stems from the defendant's convictions of firearm-related offenses. The defendant argues that the trial judge erred in declining to give the DiGiambattista 1 instruction related to unrecorded police interrogations, in interrupting defense counsel's closing, and in admitting certain testimony. For the reasons detailed below, we reverse. Background. We recite the facts as the jury could have found them during the trial. An investigation of a gun-related incident,...
AGNES, J. Under the Massachusetts Business Corporation Act (Act), 3 G. L. c. 156D, as appearing in St. 2003, c. 127, shareholders have the right to dissent from a proposed merger and demand that the corporation pay "fair value" for their shares if the merger is accomplished. G. L. c. 156D, 13.02( a ). The principal issue presented by this appeal is whether the trial judge correctly applied the appraisal provision of the Act, G. L. c. 156D, 13.30, in determining the "fair value" of stock...
McHUGH, J. On November 13, 1997, Alonzo McConnico, an employee of Travelers Rental Company, Inc., doing business as Dollar Rent-A-Car (Dollar), struck and killed Sheila Kohlmeyer, a pedestrian, while he was driving one of Dollar's automobiles. After the accident, Dollar and its excess insurer, United National Insurance Company (United), filed an action against McConnico and Kohlmeyer's estate (estate) seeking a declaration that McConnico did not have express or implied permission to drive...
KANTROWITZ, J. This appeal arises from a personal injury action brought by Cleber Coleta Dos Santos (Dos Santos), his wife, and his son against Jose T. Coleta (Dos Santos's brother-in-law) and Maria A. Coleta (Dos Santos's sister-in-law), claiming damages for negligence, failure to warn, and loss of consortium following an accident on the defendants' property in which Dos Santos broke his neck, rendering him a quadriplegic. The jury returned a verdict for the defendants. At issue here is the...
GRAHAM, J. The Commonwealth's lodging house licensing statutory system — G. L. c. 140, 22-32 (Act) — is at the center of this consolidated appeal. Five property owners (defendants) appeal from judgments of the Housing Court permanently enjoining them "from allowing more than three unrelated adults to reside in each legal dwelling unit" in question, and from final orders adjudging them in contempt for disobeying court orders so enjoining them. General Laws c. 140, 22, amended by St....
TRAINOR, J. The defendants, Ronald F. Palmer and Jeanette M. Palmer (collectively, Palmers), appeal from a jury verdict finding that a 2000 deed from the plaintiff, Virgil D. Howe, to the Palmers was the product of undue influence and that the Palmers had intentionally inflicted emotional distress on Howe. In answer to special questions, the jury found that Howe did not know nor should he reasonably have known prior to March 1, 2003, that he had been harmed (for purposes of applying the...
WOLOHOJIAN, J. Hamilton James (James), a client of State Street Bank and Trust Company (State Street), wished to make a charitable gift of mutual fund shares to The James Family Charitable Foundation (foundation). The shares were in the custody of State Street pursuant to a custodianship agreement (agreement) between James and State Street that, among other things, required State Street to transfer assets when instructed to do so by James. James, through his investment agent, instructed State...
McHUGH, J. Chelsea D. Scott and Tina Brelin-Penney, husband and wife, appeal from a Superior Court judgment dismissing employment discrimination claims they brought against their former employer, Encore Images, Inc. (Encore), and Laurel Mervis. The claims stem from an injury Scott suffered while he was employed by Encore as a warehouse coordinator. The injury resulted in a disability, a workers' compensation proceeding and, they claim, their discharge. Both plaintiffs filed claims with the...
SIKORA, J. This appeal presents issues generated by the sale of a small business. The buyers and sellers were familiar with the local industry and each other. After the sale, the disappointing performance of the business cast doubt upon the integrity of the parties' negotiations and set in motion the following dispute. The resulting issues include the evidentiary use of a party's failure to file Federal income tax returns, the permissible approximation of compensatory damages, and the...
WOLOHOJIAN, J. The plaintiff, a teacher in the Springfield public school system (school), 1 was suspended without pay and subsequently terminated because she was the subject (together with her parents and siblings) of Federal indictments charging corruption at the Springfield Housing Authority (SHA). 2 After the charges against the plaintiff were dismissed pursuant to an agreement with the Federal government, the plaintiff sought reinstatement and back pay. The defendant denied those...
SIKORA, J. At the conclusion of a bifurcated trial in Superior Court, the defendant was convicted of operating a motor vehicle under the influence of intoxicating liquor (OUI), seventh offense, G. L. c. 90, 24(1)( a )(1); operating to endanger, G. L. c. 90, 24(2)( a ); and operating after revocation of his license, G. L. c. 90, 23. 1 On appeal he challenges the pretrial denial of his motion to suppress evidence resulting from the stop and detention of his automobile by a police officer...
HANLON, J. Along with her husband, the defendant was convicted of sexual abuse of her four minor sons and related drug offenses after a joint jury-waived trial in 1997. 1 In 2002, she filed a motion for a new trial, arguing that battered woman syndrome had rendered her incompetent to stand trial, and thus she suffered a violation of her constitutional right to due process. 2 A judge other than the trial judge was assigned to hear the motion for a new trial. 3 After reviewing the motion...
COHEN, J. Four years after he was convicted of murder in the second degree, the defendant filed a motion for a new trial, claiming that his trial counsel had provided constitutionally ineffective assistance by failing to object to the closure of the courtroom during jury selection. The trial judge carefully considered the motion, conducting an evidentiary hearing that spanned two days and involved testimony from six witnesses. 1 On April 2, 2009, the judge denied the motion in a detailed...
BROWN, J. In 2010, following a jury-waived trial, the defendant was found guilty on two indictments charging him with rape of his adult daughter in 1993 and 1996, respectively. See G. L. c. 265, 22( b ). On appeal, the defendant argues that the trial judge erred in denying his motion for a required finding of not guilty because there was insufficient evidence to convict him. The defendant also argues that his pretrial motion to dismiss should have been allowed because the evidence before...
MILLS, J. Sometimes ships do not pass in the night. At approximately 9:10 P.M. on Saturday, August 13, 2005, a ferry operated by a company doing business as Boston Harbor Cruises (BHC) struck two stationary boats tied together and anchored in Boston Harbor, sinking both. One of the two boats was a power boat owned by the defendants Jeffrey and Nicole Crispo (the Crispos). The other was a lobster boat owned and operated by Jeffrey's brother, Steven Crispo. The Crispos and Steven (in separate...
VUONO, J. The issue presented in this eminent domain case is whether the rate and method of calculating interest set by G. L. c. 79, 37, 1 as applied to the land taking in question, provides the plaintiff, Central Water District Associates (CWDA), with just and reasonable compensation as mandated by the Fifth Amendment to the United States Constitution and art. 10 of the Massachusetts Declaration of Rights. 2 Upon a motion for summary judgment by the defendant, Cedar Meadow Lake...
BERRY, J. The board of selectmen of Shrewsbury (board), acting as the licensing authority for the town of Shrewsbury (town), denied the plaintiff Grenier's application for a license to sell used cars. The board based the denial on its "Policy Number 9" (Policy 9), 3 which purports to cap at twenty the number of class 2 used car dealer licenses in the town. When Policy 9 was adopted in 1999, the board did not specify why that precise number would be the cap. Rather, all that was stated by...
TRAINOR, J. This is an appeal from a decision of the Appellate Tax Board (board) in favor of the assessors of the cities of Woburn and Springfield (assessors), which denied applications for abatement of certain personal property taxes paid by MASSPCSCO. Because we agree that MASSPCSCO was not entitled to the "stock in trade" exemption from property tax set forth in G. L. c. 59, 5, Sixteenth (2), we affirm the board's decision. We summarize the facts as found by the board. Sprint Spectrum,...
SMITH, J. The plaintiffs, two attorneys (and one of their law firms) and a former class representative, filed multiple complaints in the Superior Court following the withdrawal of a potential class action settlement with Nestle Waters North America, Inc. (Nestle). The defendants are several attorneys (and their respective law firms; collectively, defendant attorneys) who filed a separate class action against Nestle, thereby eliminating the plaintiffs' opportunity to settle with Nestle, and...
SIKORA, J. This appeal presents two issues of coverage under the workers' compensation scheme. The first is the familiar question whether the claimant was an independent contractor or an employee at the time of his injury. The second is the unfamiliar question whether he was working jointly for two employers at the time of his injury so as to impose statutory financial liabilities upon each of them. By thorough findings and reasoning after an evidentiary hearing, an administrative judge of the...
