Com v. Mubdi, 3/29/10

Commonwealth v. Martel Mubdi, March 29, 2010
456 Mass. 385

The defendant was charged with possession of marijuana, possession of marijuana with intent to distribute, and possession of marijuana with intent to distribute within 1,000 feet of a school or public park. The marijuana with which he is charged of possessing and distributing was confiscated after the police conducted a stop and protective search of the defendant’s car. The trial judge denied the defendant’ motion to suppress evidence, finding reasonable suspicion and reasonable protective search. The defendant appealed, the Appeals Court affirmed the denial. The SJC reversed the denial of the motion to suppress.

Kelley s. Riccelli Enterprises of Mass., Inc., 3/29/10

Dennis A Kelley vs. Riccelli Enterprises of Massachusetts, Inc., and others, March 29, 2010

2010 Mass. App. Div. 81

Motion for Summary Judgment, Withholding Payment on Contract and G.L.c. 93a, Attorney’s Fees

Facts

Plaintiff (“Kelley”) was an independent trucking contractor, who was hired by the defendant (“Ricelli”).  Two days after work was completed and a bill was sent to Ricelli for Kelley’s services, a fire broke out in Ricelli’s equipment yard which destroyed Kelley’s tractor, the two vehicles on either side of it, and caused oil and gas to leak resulting in environmental damage.  Ricelli withheld payment to Kelley and filed suit against him in superior court for the costs of the environmental damages, claiming it was Kelley’s truck that caught fire and caused all the damage.  After numerous requests from Kelley and his attorney for Ricelli to pay for the work done, Kelley filed this lawsuit alleging that Ricelli had withheld payment only to gain advantage in its litigation with Kelley’s insurer. 

The trial court agreed with Kelley and found a breach of contract and damages, and then doubled those damages under G.L.c. 93a, and assessed attorney’s fees.  Ricelli appealed both a denial of the summary judgment motion he filed at the start of the trial, as well as the finding of a violation of 93a and damages.  The Appellate Division affirmed the judgment and damages.

Galinsky v. Segal, 3/29/10

Blair Galinsky vs. David Segal, March 29, 2010

2010 Mass. App. Div. 76

Landlord Tenant Security Deposit, Counsel Fees, G.L.c. 186 §15B, Exclusion of Documents

Facts

Galinsky brought a G.L.c. 186 §15B action against his former landlord, David Segal to recover his security deposit, as well as treble damages and attorney’s fees.  Segal counterclaimed for alleged damage to property, unpaid water and septic bills, lost rent, and other costs.  Galinsky had rented a house in Lincoln, MA from Segal, and at the start of the rental had paid him a $3500 security deposit.  After Galinsky left the property, Segal made a list of damages and unpaid bills and sent them to Galinsky, not at the forwarding address he left with the post office, but rather by regular mail to the rental property.  Galinsky never received this list of alleged damages, which contained no actual evidence of the cost to repair the damages or the damages themselves.

Galinsky and his attorney had written several letters requesting the return of the security deposit, but when Segal did not pay, Galinsky commenced this action 3 months after he moved out. 

A pretrial conference was held at which time Galinsky’s attorney served Segal with a request for admissions, and Segal responded that the house had been vacated and he had not paid the security deposit back to Galinsky within thirty days.  At the start of the trial, Galinsky’s new lawyer filed a motion in limine to prohibit the introduction of Segal’s damage list because it had not been received by the discovery deadline.  The trial judge agreed and excluded the damage list.

Feyre-Febonio v. Thelen, 3/17/2010

Victoria A. Feyre-Febonio vs. Helen Thelen, March 17, 2010

2010 Mass. App. Div. 65

Remodeling Work, Denial of Motion for Directed Verdict

Facts

Victoria Febonio moved to the pioneer valley with her young child and wanted buy a home.  Helen Thelen was the mother of a playmate of Febonio’s child and was also a real estate agent.  They entered into a deal whereby Febonio would do some painting for Thelen, and in return she would appraise real estate for Febonio.  Eventually, Thelen wanted Febonio to remodel a bathroom in her basement and Febonio began work and completed the job in bits and pieces to accommodate Thelen’s cash flow.  When the job was done, Febonio sent Thelen the bill for $1700, and when the bill went unpaid she brought a small-claims action against Thelen, who then removed the case to the civil docket, filed counterclaims, and requested a jury trial.

The jury dismissed Thelen’s counter claim, and awarded Febonio $2500.  Thelen appealed the denial of her motion for a directed verdict and denial of her motion for post-trial relief.  The Appellate Division affirmed the decisions.

Com v. Flanagan, 3/15/10

Commonwealth v. Kelly J. Flanagan, March 15, 2010
76 Mass. App. Ct. 456

Double Jeopardy; Lesser Included Offense; Operation of Motor Vehicle.

The defendant made two double jeopardy claims on appeal. She was convicted (i) of two counts of causing serious bodily injury while operating a motor vehicle negligently and while intoxicated (M.G.L. c. 90, s. 24L(1)) and (ii) of reckless operation of a motor vehicle (M.G.L. c. 90, s. 24(2)(a)).

Johnson v. Lapan, 3/15/10

Sylanda Y. Johnson vs. Tammy Lapan, and others, March 15, 2010

2010 Mass. App. Div. 55

Motion for Summary Judgment- Issue Preclusion

Facts

In December, 2005, the plaintiff was injured when a rental car she was a passenger in was hit by a car driven by the defendant.  The plaintiff was not insured through the rental company or covered by any resident relative’s policy.  She incurred $14,791.24 in medical expenses.  She submitted a claim to the rental company’s insurer for uninsured motorist coverage of her personal injuries, and in October, 2006 sought arbitration of this claim in Superior Court.

In February of 2007 before the arbitration was complete, the plaintiff brought a negligence action against the defendant to recover damages for personal injuries for the exact same amount as in her arbitration claim.  In January of 2008 the arbitrator awarded Ms. Johnson $16, 791.24 in damages and the award was paid by the rental car insurance company.  In March, 2008 the defendants in the negligence action moved jointly for summary judgment on the primary grounds that issue preclusion prevented Ms. Johnson from litigating the issue of her damages.  The trial court allowed the motions and denied the plaintiff’s motion for reconsideration.  The plaintiff then filed a Rule 8C appeal.  The Appellate Division reviewed the motion for summary judgment de novo and found no error.

Mizhir v. Carbonneau, 3/15/10

George J. Mizhir, III vs. Jenny Carbonneau, and others, March 15, 2010

2010 Mass. App. Div. 57

Malicious Prosecution, Judgment notwithstanding the verdict, Remittur

Mizhir filed a malicious prosecution action against three individuals he believed set up his arrest.  One of the original 3 defendants, Brian McCarty (McCarty) Defaulted and after assessing damages a judgment was entered against him for 25,000 dollars.  The case against the remaining two defendants was tried in front of a jury and after answering special questions from the judge, a judgment was entered against them jointly and severally for $200,000.  Both defendants filed separate motions for new trial, entry of judgment n.o.v., and remitter, all of which were denied.  Carbonneau appealed those denials.  Because she contended the judge erred in denying her request for judgment n.o.v., the evidence was viewed in the light most favorable to the plaintiff.  The Appellate Division affirmed the judgment and damages.