Citibank (SD) v. Garabedian, 3/30/10

Citibank (South Dakota), N.A. vs. Charles Garabedian, March 30, 2010

2010 Mass. App. Div. 89

Res Judicata

The plaintiff “Citibank” brought a claim for payment of a delinquent credit card account of the defendant “Garabedian” on which the court entered summary judgment for Citibank.  The case arose out of Garabedian’s failure to make payments on either his Visa card or his MasterCard which he had applied for, received, and used from Citibank.  On April 8, 2005, Citibank brought a claim in Lawrence district court for the unpaid balance on his Visa card, and a default judgment for the plaintiff was entered on that claim when Garabedian failed to answer.  On October 5^th, 2006, Citibank filed an action to collect the balance owed on Garabedian’s MasterCard account.  The case was dismissed on February 5^th, 2007 pursuant to rule 4(j) for Citibank’s failure to effect timely service of process.  On January 14, 2008, Citibank brought the same action a second time and both parties moved for summary judgment pursuant to Mass. R. Civ. P., Rule 56.  Garabedian claimed that res judicata barred this action because the action had already been dismissed, and in the alternative because Citibank was obligated to bring this action with the first collection action in 2005.  The trial court denied Garabedian’s motion and awarded summary judgment for Citibank.  The Appellate Division affirmed that decision.

Bertrand v. Merrimack Mutual Fire Ins. Co., 3/30/10

Joseph Bertrand, and another vs. Merrimack Mutual Fire Insurance Company, March 30, 2010

2010 Mass. App. Div. 85

Referee’s Award, Summary Judgment

The plaintiff-homeowners (“Bertrands”) filed this action against Merrimack Mutual Fire Insurance Company (“Merrimack”) for benefits they alleged were due under their insurance policy for damage caused to their home by a fire.  The insurance policy the Bertrands had with Merrimack contained different coverage sections that were supposed to pay for different types of losses or expenses.  Merrimack paid amounts that exhausted the coverage maximums of the sections covering loss or damage to property and loss of use of property, but there was still $19,000 dollars available to the Bertrands under the section that covered additional living expenses.  The Bertrands had placed some of their property into a storage unit after the fire and were seeking the $260 dollars a month that the unit cost to rent from this latter section of Merrimack’s policy.  Merrimack argued that this section was only designed for temporary living expenses in case the family could not live in the house, and was not meant to cover storage fees.  Merrimack believed that this cost was included in an earlier section covering loss of use of property, and the maximum coverage on that section having already been paid, Merrimack refused to pay these storage fees.

In accordance with G.L.c. 175 §99, the Bertrands agreed to a three member board of referees to determine amount of loss owed to them.  This referee board concluded that Merrimack owed the Bertrands $0.00.  The Bertrands then took their claim to court where the trial judge awarded summary judgment for Merrimack.  The Appellate Division vacated the summary judgment order.

City Sanitation v. Beck, 3/30/10

City Sanitation vs. Christopher Beck and another, March 30, 2010

2010 Mass. App. Div. 92

Motion to Dismiss for Lack of Personal Jurisdiction

Facts

The plaintiff “City” brought a suit alleging conversion of his truck engine, stating that the defendant’s brother, while in possession of City’s truck, removed its engine and put it into a truck owned by the defendant “Christopher”.  Christopher denied owning the truck or that the motor was actually switched, and moved pursuant to Mass. R. Civ. P. 12(b)(2) that the case against him be dismissed for lack of personal jurisdiction.  Christopher is a resident of Rhode Island, and the other defendant is his company which is incorporated in Rhode Island and has its principle place of business there.  The trial judge ordered the case dismissed for lack of personal jurisdiction and the Appellate Division affirmed that order.

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.

Burgos v. Pilgrim Ins. Co., 3/15/10

Maritele Burgos and another v. Pilgrim Insurance Company, March 15, 2010
2010 Mass. App. Div. 49

Insurance, “Personal Injury Protection” Benefits, Motion for Summary Judgment
 
The plaintiffs, an automobile driver (Burgos) and her friend, were insured by Pilgrim, the defendant insurance company. The plaintiffs commenced this action after Pilgrim denied their claims. Summary judgment was entered for Pilgrim. Plaintiffs appealed. The dispositive issue was whether the plaintiffs' delayed submissions of their PIP applications prejudiced the defendant-insurer's investigation, thereby justifying denial of their PIP claims. The Appellate Division affirmed the summary judgment for Pilgrim, the defendant-insurer.

Com v. Porter P., 3/11/10

Commonwealth v. Porter P., a juvenile, March 11, 2010
456 Mass. 254

The Commonwealth appealed the Juvenile Court’s granting of a motion to suppress evidence (a gun and a statement) seized during a search conducted by police of the juvenile defendant’s room in a transitional family shelter. The police conducted the warrantless search of the room after being given consent by the shelter’s director. The defendant argued that the warrantless search of the room and seizure of the gun violated the Fourth Amendment to the U.S. Constitution and article 14 of the Massachusetts Declaration of Rights; and that his statement to police after the seizure should also be suppressed as “fruit of the poisonous tree” of the illegal search and seizure under Wong Sun v. United States, 371 U.S. 471 (1983). The SJC affirmed the allowance of the motion to suppress, excluding both the gun and the statement.

Com v. Kereakoglow, 3/10/10

Commonwealth v. Gregory Kereakoglow, March 10, 2010
456 Mass. 225

Obscenity, Dissemination of matter harmful to minor, Community standard

The defendant was convicted by an Essex County jury of possession with intent to disseminate matter harmful to minors. The harmful matter consisted of three digital images of the fifty-year-old Hampshire County defendant posing naked, which he sent by electronic mail to a police officer posing online as a fifteen-year-old girl living in Essex County. The jury was required to decide whether the images were patently contrary to prevailing standards of adults in the county where the offense was committed as to be suitable material for minors. There was no testimony at trial as to the prevailing standards of adults in Hampshire County. The SJC reversed the conviction because there was no mention of either Hampshire or Essex County in the judge’s instruction on how the jury was to determine the county where the offense was committed. Accordingly, the jury had no alternative but to improperly decide whether the images were patently contrary to the prevailing standards of adults in Essex County as opposed to Hampshire County where the offense was committed.

Com v. Depina, 3/10/10

Commonwealth v. Nathaniel Depina, MARCH 10, 2010
456 Mass. 238

Firearms, Search and seizure, Investigatory stop

The defendant was convicted of illegal possession of a firearm. On appeal he argued the motion judge erred in the denial of his motion to suppress. The SJC disagreed and affirmed the conviction.

Long v. The Niles Co., Inc., 3/10/10

Robert J. Long and another v. The Niles Company, Inc., March 10, 2010
2010 Mass. App. Div. 43

Negligence, Insurance Coverage Deductible, Notice, Motion for Directed Verdict

The plaintiffs (“the Longs”), are condominium unit owner who sustained water damage to their unit and afterwards learned of a $15,000.00 gap in insurance coverage. The defendant, The Niles Company, Inc. (“Niles”), is the condominium management company. At trial, a jury found Niles to be negligent in failing to inform the Longs of an increase in the insurance coverage deductible for water damage, and awarded the Longs damages in the amount of $15,000.00. Niles appealed both the jury's verdict and the trial court's denial of its motion for directed verdict and a new trial. The Appellate Division vacated the judgment for the Longs, reversed the denial of Niles' motion for directed verdict, and ordered entry of judgment for Niles.

Miller v. J and Q Automotive, Inc., 3/9/10

Jacqueline M. Miller, and another v. J and Q Automotive, Inc., March 9, 2010
2010 Mass. App. Div. 41

Breach of Contract, Warranty of Merchantability, Consumer Protection, G.L.c. 93A, Misrepresentation
 
The plaintiffs (“the Millers”), purchased a used vehicle from the defendant, J and Q Automotive, Inc. (“defendant”). This action commenced after the vehicle broke down. The complaint alleged breach of contract, violation of G.L.c. 93A, breach of the warranty of merchantability, and misrepresentation. Summary judgment was entered for the defendant. The Millers appealed that ruling. The Appellate Division affirmed summary judgment for the defendant on breach of contract, breach of warranty of habitability and misrepresentation counts. Summary judgment for the defendant on the G.L.c. 93A count was reversed.

Fried v. Wellesley Mazda, 3/9/10

David J. Fried v. Wellesley Mazda, and another, March 9, 2010
2010 Mass. App. Div. 36

Personal Jurisdiction, G.L.c. 93A, Motion to Vacate Default Judgment, Service of Process, Certified Mail

The plaintiff, Fried, was a customer of the defendants. The defendants are Hometown Auto Framingham, Inc. (“Hometown Auto”) and Wellesley Mazda. Hometown Auto is a Massachusetts corporation doing business as Wellesley Mazda. The defendants failed to respond to the complaint in a timely manner and default judgment against the defendants was entered. The Appellate Division reversed the denial of the defendants' motion to vacate default judgment and returned the case for trial.

Duvivier v. Kay's Oasis Enterprises, Inc., 3/9/10

Marie Duvivier v. Kay’s Oasis Enterprises, Inc., March 9, 2010
2010 Mass. App. Div. 31

Personal Injuries, Negligence, Hair-Weaving Treatment

The defendant, Kay's Oasis Enterprises, Inc. (“Kay's”), operated a hair salon that had treated the plaintiff, Duvivier. Kay's appealed a jury verdict of $500,000.00 against it on a personal injury claim arising out of a hair-weaving treatment it performed on Duvivier. Kay's principal argument on appeal was that a directed verdict should have been allowed on the issue of causation of Duvivier's injury by Kay's treatment. The Appellate Division affirmed the judgment for Duvivier

Cotton v. Hanover Ins. Co., 3/9/10

Stephen J. Cotton v. Hanover Insurance Company, March 9, 2010
2010 Mass. App. Div. 29

Insurance, Personal Injury Protection (PIP), Independent Medical Examination (IME)
 
The plaintiff, Cotton, was insured by the defendant, Hanover Insurance Company. After a jury-waived trial of a personal-injury protection (PIP) action, the trial judge found that Cotton had failed to attend two scheduled independent medical examinations (IME), and that Hanover was not required to prove it was thereby prejudiced in order to deny Cotton's PIP claim. Judgment was entered for Hanover. Cotton appealed, claiming that the trial court erred because Hanover could not prevail without establishing prejudice, which it failed to do. The Appellate Division affirmed the judgment for Hanover.

Civetti v. Petti, 3/9/10

Pauline Civetti v. Mark Petti, Trustee of 6-8 Brook Street Realty Trust, March 9, 2010
2010 Mass. App. Div. 26

Negligence, Property Maintenance, Tort, Personal Injuries, Jury Instructions

The plaintiff (Civetti) rented an apartment from the defendant (Petti). Civetti brought this action against Petti to recover damages for injuries sustained in a fall at her home. Civetti claimed that she fell down a set of stairs because she caught her shoe on a nail that was protruding in the stairway, and that the fall was caused by Petti's negligence in maintaining the property. A jury trial found that Petti was not negligent and judgment was entered in his favor. Civetti appealed, alleging that the trial judge erred in denying her request for jury instructions on the issues of the covenant of quiet enjoyment and the implied warranty of habitability, and in denying her proposed verdict slip regarding those issues. The Appellate Division affirmed the judgment for the defendant, Petti.

Com v. Stote, 3/5/10

Commonwealth v. John Stote, March 5, 2010
456 Mass. 213

Actual Conflict of Interest.

The defendant appealed from his first-degree murder conviction, arguing ineffective assistance of counsel based upon an actual conflict of interest of his defense counsel because of an intimate personal relationship between the defense counsel and an assistant district attorney that was not disclosed to the defendant. The SJC found that the defendant did not meet his burden of showing an actual conflict of interest.

Com v. Perez, 3/5/10

Commonwealth v. Mario Perez, March 5, 2010
76 Mass. App. Ct. 439

Motion to Suppress, Search and seizure.

The defendant contended that his pretrial motion to suppress evidence was improperly denied. The defendant argued that the trial judge should have excluded packages of suspected cocaine that police seized after digging in an area of freshly disturbed dirt near the side entrance to the house (for which the police had a search warrant). The appellate court found that the trial judge properly denied the motion to suppress because the area – which was about three feet from the stairway to the side door and beneath a first-floor window – was clearly within the curtilage of the house, use limited to the occupants of the house. The court also rejected any privacy interest of the defendant in burying the drugs because the drugs were clearly placed there to avoid detention.

Com v. Power, 3/4/10

Commonwealth v. Ann Power, March 4, 2010
76 Mass. App. Ct. 398

Instruction to Jury; Wanton or Reckless Conduct.

The trial judge in the defendant’s case had instructed the jury on four theories of homicide (first- and second-degree murder, involuntary manslaughter by battery, and involuntary manslaughter by wanton and reckless conduct); the defendant contended that the judge’s instruction on the definition of involuntary manslaughter by reason of wanton or reckless conduct was insufficient. The appellate court disagreed with the defendant. The appellate court found that the trial judge properly followed the Supreme Judicial Court’s Model Jury Instructions on Homicide and that the judge correctly rejected the defendant’s proposed additional instruction addressing foreseeability of substantial harm. There was no evidentiary basis supporting the additional instruction, which is necessary for such inclusion, and Massachusetts doctrine and case law on involuntary manslaughter by wanton or reckless conduct has never required specific foreseeability of the manner of harm or death.

Com v. Mathis, 3/2/10

Commonwealth v. Ronald Mathis, March 2, 2010
76 Mass. App. Ct. 366

Search and Seizure, Investigatory Stop, Probable Cause

The defendant argued on appeal that the judge erred in the denial of his motion to suppress the drugs. The Appeals Court, in a split decision, affirmed the conviction.

Com v. Sylvia, 3/2/10

Commonwealth v. Kyle Sylvia, March 2, 201
456 Mass. 182

Opening Statement.

The defendant argued reversible error in the prosecutor’s opening statement, contending that the prosecutor made statements that were not later followed by supporting evidence and were not advanced in good faith. The prosecutor made the statements at issue in order to suggest possible defendant motives for the murder at issue. The SJC, reviewing to determine whether “any misconduct created a substantial likelihood of a miscarriage of justice,” found no error. The court found that the prosecutor’s suggestions of possible motive were all made in good faith, with the prosecutor reasonably expecting to elicit supporting testimony for each suggested motive during the trial. The SJC also noted, first, that the trial judge properly instructed the jury that nothing in the opening statements was to be taken as evidence and second, that the prosecutor’s statements should be viewed in context, wherein he was attempting to make the (legally correct) point that he does not need to prove motive.

Com v. Muniz, 3/2/10

Commonwealth v. Exsel Muniz, March 2, 2010
456 Mass. 166

Motion to Suppress; Firearms; Ballistics Certificate.

The defendant appealed from his conviction of unlawful possession of a firearm, possession of a firearm without a firearms identification card and unlawful possession of ammunition. The defendant argued that under Melendez-Diaz, his constitutional right to confront and cross-examine witnesses against him were violated when the Commonwealth admitted ballistics certificates to prove the charges. The SJC found that admission of the ballistics certificate to prove the firearm charges did not constitute harmless error beyond a reasonable doubt but that the ammunition charge did. The court noted that the harmless beyond a reasonable doubt standard consists of a consideration of whether “on the totality of the record before us, weighing the properly admitted and the improperly admitted evidence together, we are satisfied beyond a reasonable doubt that the tainted evidence did not have an effect on the jury and did not contribute to the jury’s verdicts.”

Kalker v. Binder, 3/2/10

Eloise C. Kalker v. G. Joseph Binder, March 2, 2010
2010 Mass. App. Div. 23

Motion to set aside default, Service of process on out-of-state party, Certified mail

The plaintiff (Kalker) alleged that the defendant (Binder) sold her Steinway grand piano on consignment, but failed to pay her in full pursuant to their agreement. Binder was a resident of New York and the plaintiff had attempted to serve the complaint on the defendant by mailing it to him via certified mail, return receipt requested. A default judgment was entered against the defendant and the defendant appealed. At issue on this appeal are the requirements of G.L.c. 223A, §4 and Mass. r. Civ. P., Rule 4(e)(3), and the proper use of certified mail to effect service upon an out-of-state defendant. The Appellate Division reversed the denial of the defendant's motion to set aside default and returned the case to trial court for the defendant's filing of an answer to the plaintiff's complaint within 20 days.