COHEN , J. Juan Doe appeals from an order of a judge of the Superior Court denying his petition to seal his criminal record in a case terminated by a nolle prosequi. We infer from the order that, in balancing the interests of the public and the defendant, as required by Commonwealth v. Pon, 469 Mass. 296 (2014), the judge may have relied upon a factor that is inconsistent with Pon 's revised standard for discretionary sealing, and may have placed too much importance on another...
AGNES , J. The question before us is whether the plaintiff, Temistocles Omar Santana, is eligible to bring a claim for relief under the erroneous conviction statute, G. L. c. 258D, because his conviction was reversed due to the effect of an improper jury instruction. 1 The plaintiff contends that he is eligible to bring such a claim because he was granted judicial relief "on grounds which tend to establish the [plaintiff's] innocence." G. L. c. 258D, 1(B)(ii). We disagree, and affirm...
AGNES , J. In this appeal, we must determine the legal sufficiency of Stephen Trychon's complaint charging the Massachusetts Bay Transportation Authority (MBTA) with violations of G. L. c. 149, 185, the Massachusetts public employee whistleblower statute (whistleblower statute). A Superior Court judge allowed the MBTA's motion, pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974), to dismiss the complaint. 1 We conclude that Trychon has stated a plausible claim for relief. See...
COHEN , J. The plaintiff sought judicial review of a decision of the Board of Appeal on Motor Vehicle Liability Policies and Bonds (board) denying her application for reinstatement of her driver's license. On cross motions for judgment on the pleadings, a judge of the Superior Court ruled in favor of the board, and the plaintiff appealed to this court. The plaintiff argues that the board erred in determining that her 1989 conviction of "driving while ability is impaired," in violation...
KATZMANN , J. The plaintiff, JB Mortgage Co., LLC, appeals from a judgment of the Superior Court dismissing its action to enforce defendant Jordan L. Ring, III's guaranty of a promissory note secured by a mortgage on real property. The trial judge found that the plaintiff's suit was barred by the applicable statute of limitations because it was filed more than twenty years after a default existed on the underlying note. The central issue before us is when the cause of action on the...
Rescripts The defendant, Sean Brantley, appeals from the judgments after his convictions by a Superior Court jury of possession of cocaine and furnishing a false name to a law enforcement officer. 1 The defendant contends that (1) his motion to suppress evidence should have been allowed; (2) the evidence was insufficient to establish beyond a reasonable doubt the elements of furnishing a false name; (3) the jury instructions on furnishing a false name were incorrect; and (4) defense counsel...
CYPHER , J. The plaintiffs, three registered voters (voters) 2 in the town of Lynnfield (town), appeal from the dismissal in the Superior Court of their complaint alleging that the board of selectmen of Lynnfield (board) 3 violated the open meeting law, G. L. c. 30A, 18-25, in the selection process for appointing several municipal officials. The voters argue that the board violated the open meeting law by (1) failing to give proper notice of the meeting at which the new town...
BLAKE , J. A judge of the Juvenile Court found that the child was in need of care and protection, that the mother was unfit to assume parental responsibility, and that the unfitness was likely to continue into the indefinite future. On appeal, the mother challenges the sufficiency of the evidence supporting the judge's conclusion that she was unfit, contending that the evidence failed to establish a nexus between her parenting and a showing of harm to the child. She also claims that the...
CYPHER , J. In these appeals from convictions of malicious burning of property, G. L. c. 266, 5, and malicious destruction of property over $250, G. L. c. 266, 127, the defendants, Samuel Doxsey and Scott Balboni, argue that (1) their motions to suppress documentary evidence obtained from third parties should have been allowed; (2) their motions to strike certain witness testimony were erroneously denied; and (3) the evidence of wilful and malicious burning was insufficient. 2 We...
MASSING , J. Defendant Kristen Bilbo taught in the plaintiff Plymouth Public Schools (district) over the course of five consecutive school years. She took maternity leave during two of them. The district tendered a notice of nonrenewal at the end of the fifth year. Bilbo asserts that her service, interrupted only by her leave permitted under the Family and Medical Leave Act, 29 U.S.C. 2601 et seq. (FMLA), entitles her to professional teacher status, 2 giving her rights including...
AGNES , J. The Workers' Compensation Act, G. L. c. 152 (act), provides that whenever the Commissioner of the Department of Industrial Accidents (the department) determines that an employer has not provided the insurance required by law, 1 "a stop work order shall be served on said employer, requiring the cessation of all business operations at the place of employment or job site." G. L. c. 152, 25C(1), as amended through St. 1989, c. 341, 82. The stop work order takes effect upon...
MASSING , J. The defendants, Marcus Darbouze (Marcus) and (Marie) 2 (together, the Darbouzes), appeal from a judgment, after a summary process trial in the Housing Court, awarding possession of their residence in Billerica (the property) to the plaintiff, Gold Star Homes, LLC (Gold Star). The Darbouzes assert that the Housing Court judge should not have permitted the trial to go forward during the pendency in the Land Court of a related, prior action in which Marie sought a declaration...
CYPHER , J. The defendant, Timothy Shruhan, appeals from his conviction by a Superior Court jury on August 24, 2012, of aggravated assault and battery by means of a dangerous weapon, G. L. c. 265, 15A( c ). Now, with new counsel, he seeks a new trial, alleging that cumulative errors in the admission of inflammatory evidence 1 and that the prosecutor's appeals to the jury's emotions created a substantial risk of a miscarriage of justice. We affirm. Background. On the afternoon of...
GREEN , J. We are called upon yet again to review a determination that assets within a self-settled irrevocable inter vivos trust should be treated as available to the trust grantor for payment of nursing home expenses (and, correspondingly, render the grantor ineligible for Medicaid benefits). We conclude that a hearing officer of the MassHealth board of hearings erroneously concluded that the trust at issue permitted its trustee to distribute proceeds from the sale of trust assets to...
RUBIN , J. This is an action for defamation brought by Kilnapp Enterprises, Inc., doing business as Real Clean (Real Clean), which describes itself as "a broker for automobile detailing and reconditioning between service providers and automobile dealerships." 3 Real Clean brought this action against the Massachusetts State Automobile Dealers Association (MSADA) for its published statements concerning an investigation by the United States Department of Labor (DOL) into the practices of...
AGNES , J. In this case we address the notice provision contained in G. L. c. 149, 29, as amended by St. 1972, c. 774, 5 ( 29), 1 in the context of a $23.29 million publicly funded project to repair a bridge in Gloucester (project). In particular, we decide whether the electronic mail message (e-mail) notice given by the claimant, N-Tek Construction Services, Inc. (N-Tek), to the general contractor, SPS New England, Inc. (SPS), satisfied 29. N-Tek contends that the Superior...
WOLOHOJIAN , J. The parties are neighboring condominium associations in the Coolidge Corner area of Brookline, where parking is at a premium. In 1978, when both condominiums were controlled by the same developers, they entered into a written agreement concerning the shared use and allocation of parking spots on their respective properties. Summarized in broad strokes, they agreed that twenty percent of the spots would be reserved for residents of the plaintiff, the smaller of the two...
MASSING , J. This appeal involves a series of landlord-tenant disputes in the manufactured housing context. The plaintiffs, residents of Leisure Woods Estates (Leisure Woods), a manufactured housing community in Orange, filed a complaint alleging that the defendant, Leisure Woods Estates, Inc., which owns, operates, and maintains Leisure Woods, failed to properly maintain and repair the common spaces, roads, and home sites. After a jury-waived trial, a judge of the Housing Court entered...
AGNES , J. The Wetlands Protection Act, G. L. c. 131, 40 (act), sets forth "minimum wetlands protection standards, and local communities are free to impose more stringent requirements." Oyster Creek Preservation, Inc. v. Conservation Commn. of Harwich, 449 Mass. 859 , 866 (2007). As we noted in Fafard v. Conservation Commn. of Reading, 41 Mass.App.Ct. 565 , 568 (1996), it is not uncommon for a town, under its local by-law, to establish wetland protection standards that are more...
MILKEY , J. The defendant, KPMG LLP (KPMG), is an accounting firm that performed annual audits for the plaintiff, Merrimack College (Merrimack). In the underlying action, Merrimack alleges that KPMG committed malpractice when it failed to detect serious financial irregularities that occurred in Merrimack's financial aid office during fiscal years 1998 through 2004. Based on a dispute resolution provision included in a contract the parties executed for fiscal year 2005, KPMG argues that...
