JPMorgan Chase & Co., Inc. v. Casarano

Massachusetts Appeals Court -- February 28, 2012

Facts: This is an appeal from a grant of summary judgment by the Land Court invalidating a mortgage due to a lack of material terms. A borrower executed a first mortgage in favor of First Eastern Mortgage Corporation to finance her purchase of property. Over the course of eighteen years, she refinanced the first mortgage, repeatedly discharging it and replacing it with another, until finally it was assigned to the plaintiff, JP Morgan Chase (a.k.a. Wells Fargo). She also executed a second mortgage on the property for $15,443 in favor of one of the sellers who subsequently assigned it to the Ford Realty Trust, of which the Defendant, Casarano is the trustee.

The note relating to the second mortgage was lost and the Plaintiffs filed for declaratory judgment in the Land Court seeking to quiet title and establish the primacy of their first mortgage. The judge found evidence from the second mortgage document that the note required monthly payments of $100 and that the debt was subject to an interest rate of ten percent per annum. However, the mortgage document itself lacked evidence of additional terms such as the payment schedule, default terms, assignability, whether the note is under seal, whether the instrument is a demand or term note and, if the latter, the maturity date.

Issue: Whether the terms of the mortgage document were sufficient to make the missing mortgage note enforceable.

No. The Land Court judge correctly concluded that even if the terms of the missing note were deemed to support a cause of action, there is no possibility of ascertaining whether the statute of limitations would render it unenforceable. While an existing note and mortgage are to be read together, the unenforceability of a missing note is certainly not remedied by importing terms, themselves insufficient, from the mortgage. For the same reason, the mortgage document itself cannot constitute a valid enforceable contract, because the terms of the mortgage are equally inadequate in the mortgage taken alone. Judgment affirmed. (HG)

Commonwealth v. Henry Arias

Appeals Court of Massachusetts -- February 28, 2012

Facts: Defendant, Arias, appeals his conviction for unlawfully carrying a firearm and possession of ammunition without a license. On the morning of May 29, 2008, Massachusetts Bay Transportation Authority’s (MBTA) security unit received information from two MBTA supervisors that "other people" had informed them that one of the contract cleaners may be carrying a gun in the small of his back while working on the property and possibly one in his car. Without identifying their sources, the supervisors then provided the MBTA officer with information regarding the defendant, including his name, where he worked, the type of vehicle he drove, and other information from his employment records. Relying on this information, but without ascertaining the identities of, or speaking to, the "other people" from whom the supervisors had obtained their information, MBTA officers proceeded to North Station where they saw the BMW, purportedly driven by the defendant, parked and unoccupied on an access road. From its license plate they learned that the car was registered to a woman who lived at an address matching the defendant’s employment record and further investigation revealed that the defendant did not have a firearms license.

The officers waited and watched the vehicle from a distance. Around 1:00 A.M., the defendant returned to the car, opened the door and sat down in the passenger seat to put on work boots. At that point, the sergeant approached the vehicle with another officer close behind. They identified themselves as MBTA Police and as they approached, the defendant stepped out of the car. He was informed that the MBTA had received information that an employee was carrying a firearm and instructed that for his safety, they were going to conduct a pat down. When he nodded his head affirmatively, the pat down proceeded, but no firearm was located. With the defendant’s consent, the officers then searched the vehicle and found a loaded pistol beneath a floor mat under the driver's seat. The defendant immediately declared, "I found it…I was going to call the police but I didn't. I just put it in the car." The defendant was then handcuffed and read the Miranda warnings as he was led to a nearby cruiser. After the defendant acknowledged the warnings, he was asked to explain the gun, whereupon the defendant essentially repeated his account of how he found the gun.

Issue 1: Whether the motion judge erred in denying the Defendant’s motion to suppress based on the court’s determination that prior to arrest, the Defendant consented to the search of his motor vehicle which resulted in the discovery of the firearm and ammunition.

Yes. It was an error to deny the motion to suppress, therefore the firearm and ammunition should not have been admitted at trial. The Defendant’s consent for the search of his vehicle was tainted by the unlawful stop and frisk by which it was preceded. First, the investigatory stop must be lawful. Second, to proceed from a stop to a frisk, the police officer must reasonably suspect that the person stopped is armed and dangerous. Here, there was no doubt that the defendant was "stopped" in a constitutional sense when the sergeant told the defendant that he intended to conduct a frisk. A stop is lawful only if the police have "an objectively reasonable suspicion of criminal activity, based on specific and articulable facts. When the reasonable suspicion is based on an informant's tip, the Commonwealth must show the basis of knowledge of the source of the information and the underlying circumstances demonstrating that the source of the information was credible or the information reliable. Here, the supervisors expressly told the police that they were passing on information they had obtained from "other people" but said nothing about who the other people were and provided no information about the other people that would enable anyone to determine either their veracity or basis of knowledge. Nothing in the record suggests that the police knew who the informants were before they arrested the Defendant or that they had any idea how the informants knew of the gun.

Free and voluntary are defined by case law to be "unfettered by coercion, express or implied, and . . . something more than mere ‘acquiescence to a claim of lawful authority.’" "Consent to search obtained through exploitation of a prior illegality, particularly very close in time following the prior illegality, has not been regarded as freely given unless the taint of the illegality has been attenuated." Relying on the findings of the Supreme Judicial Court in Commonwealth v. Loughlin, 385 Mass. 60 (1982), this Court found that the record does not show sufficient attenuation of the illegal search and seizure of the defendant to warrant a finding that his consent was an act of free will, unaffected by the taint of the illegality. The officer did not advise the Defendant of “his right to refuse to consent to the search. No significant time elapsed between the illegality [of the stop] and the 'consent.' No intervening event occurred that dissipated the effect of the illegality." Judgment reversed.

Issue 2: Whether the trial judge erred in allowing introduction of hearsay testimony.

Yes. The trial judge erred in allowing the officers to testify, over objection, that the defendant was known to carry a firearm and that he would be driving a BMW to North Station. The testimony was hearsay, perhaps totem pole hearsay, as the officers received all of that information from the supervisors, who did not testify and who received at least some of it from unnamed others. Admission of testimony that went beyond what was necessary to show the state of police knowledge violated the defendant's right to confrontation under the Sixth Amendment to the United States Constitution. The error was not harmless, as the testimony bore on issues central to the Commonwealth's case and central to the defense. Judgment reversed.

Note: The court declined to resolve Defendant’s claim that the trial judge should have held an evidentiary hearing on the voluntariness of his statements. (HG)

Commonwealth v. Kateley, 461 Mass. 575 (2012)

 Supreme Judicial Court   February 24, 2012

Facts: In 1998, the defendant plead guilty to sex offenses in Oregon. In 2006, he had been held in custody at the Norfolk County Correctional Center. Upon his release, he signed a form acknowledging that he had been informed of his duty to register and to provide ten-day notice to the board if he planned to move. That day, the defendant filled out his initial sex offender registration form at the Brockton police department. At the time, he check the box indicating that he was a level two sex offender, listed an apartment at 167 Newbury street as his address, and provided a telephone number. He also listed his daughter as his closest living relative and provided that she also lived at 167 Newbury Street.

A detective made several unsuccessful attempts to verify the defendant's contact information by visiting the apartment and call him. When he asked the defendant to provide accurate telephone number and address, the defendant provided him with a new phone number and stated that he resided at the 167 Newbury address. He also said that he stayed somewhere else but refused to provide that address.

Again the detective unsuccessfully tried to telephone the defendant. He also visited the apartment where he met the defendant's daughter and granddaughter. The defendant was not there and the detective testified that it appeared to him the defendant did not live there. When the detective asked the defendant for his other address, the defendant refused again.

The defendant then sent a letter to the board stating, “due to a family situation I have to immediately return to Oregon.” It provided that future correspondence from the board could be sent to him in care of what appeared to be a family member in Oregon. The detective, upon returning to the Newbury Street apartment and finding a tenant who did not know the defendant or his family, applied for an arrest warrant. The defendant was then arrested in Brockton for failure to register.

Procedural History: At trial, the Commonwealth arguing that the defendant had admitted to living elsewhere, and therefore he had the obligation to report his secondary address. The Commonwealth also argued that the defendant also did not list his secondary, out-of-sate address in Oregon. The defendant provided several witnesses, including his daughter who testified that the defendant slept on the couch and that she had showed the detective the duffel bags belonging to the defendant.

The judge found that the defendant knowingly failed to verify registration information. Specifically, that he failed to verify any other residence, or places that he frequented. Although the judge stated that when the defendant sent the letter regarding his move to Oregon, he knew that he had an obligation to provide ten-day notice to the board of his intention to do so. Nevertheless, she did not find him guilty on that ground, only failing to register. The defendant appealed, arguing that there was insufficient evidence to convict him of failing to verify his registration information.

Issue #1: Whether the Commonwealth lacked sufficient evidence to convict the defendant of failing to verify his sex offender registration information?

Yes. Under the statute, in order for the Commonwealth to prove beyond a reasonable doubt that the defendant failed to provide a secondary address, it had to show that the defendant stayed at an address other than the apartment for either fourteen days in a calendar year or for four or more days in a month. The court concluded that no investigation was executed that would have established a second address or the number of days that he stayed there. The defendant's statement that he stayed elsewhere was the only existing evidence that he may have had a secondary address. Furthermore, the court did not believe that the detective's assertion that the defendant provided him with false telephone numbers was evidence of how often the defendant stayed elsewhere.

The court also concluded that although G.L. c. 6, s 178F 1/2 states that a level two sex offender must inform the local police department in person of an intention to move out of state, no form admitted into evidence, including forms signed by the defendant, indicated that only local police department must be informed.

Issue #2: Whether the defendant should face community parole supervision for life (CPCL)?

No. The defendant had argued that the complaint was deficient under art. 12 of the Massachusetts Declaration of Rights because it failed to allege that the defendant was a level two sex offender, and that he had been convicted of one of the requisite offenses that could result in CPSL. The court found that the complaint against the defendant charged a violation of the duty to register, an offense that is not the same as the alleged predicate offense or condition (i.e. the defendant's prior conviction of certain sex offenses or sex offender classification) that could result in CPSL. Therefore, the complaint did not meet the requirements of art. 12.

Judgment: Judgment reversed. (MW)

Massachusetts Highway Department v. Massachusetts Organization of State Engineers and Scientists

Massachusetts Appeals Court – February 23, 2012

Facts: According to a collective bargaining agreement (agreement) between the Massachusetts Highway Department (MHD) and members of Massachusetts Organization of State Engineers and Scientists (MOSES), "[A]ny dispute concerning the application or interpretation of the terms” of the agreement were subject to a four-step grievance procedure: Step (1) involved an immediate supervisor; step (2) an agency head; step (3) the Commonwealth's Human Resources Department (HRD); and step (4) arbitration. Each step had deadlines for filing the grievance or the appeal, and the first three had deadlines for decisions. The agreement also states that "[t]he arbitrator [had] no power to add to, subtract from, or modify any provision of [the] Agreement or to issue any decision or award inconsistent with applicable law. The decision or award of the arbitrator [was] final and binding in accordance with [G. L. c.] 150C."

Pursuant to the agreement, Arbitrators separately awarded two engineers employed by MHD, additional compensation for the periods of time that they performed work assigned to employees at higher pay grades. However, a Superior Court Judge found that the arbitrators in both cases had exceeded their authority by ignoring provisions in the agreement that contained deadlines for filing grievances. He also asserted that the arbitrators in one case impermissibly "modified the plain language" of the agreement insofar as filing deadlines were concerned and, in the process, "went beyond what [G. L. c.] 150C and Article 23A ever contemplated. MOSES, the exclusive bargaining agent for MHD engineers, appeals the order, claiming that the judge's rulings invaded an area reserved for the arbitrators.

Issue: Whether the arbitrators exceeded their authority by inferring relief beyond the scope of the agreement.

No. As long as the arbitrator’s award does not cross beyond the boundaries to which the parties bound themselves and is not the product of the arbitrator's own "idiosyncratic brand of workplace justice," the award will be upheld. In the end, it is "the arbitrator's interpretation of the bargained-for language that the [parties] . . . agreed to accept, not the interpretation by a court acting upon a subsequent application under G. L. c. 150C, § 11." Sheriff of Suffolk County v. AFSCME Council 93, Local 419, 68 Mass. App. Ct. 222, 226-227 (2007). "When parties agree to arbitrate a dispute, courts accord their election great weight. The strong public policy favoring arbitration requires us to uphold an arbitrator's decision even where it is wrong on the facts or the law, and whether it is wise or foolish, clear or ambiguous." Boston v. Boston Police Patrolmen's Assn., 443 Mass. 813, 818 (2005). Reversed. (HG)

In re Hugo Santos

Supreme Judicial Court of Massachusetts    

Facts:  The petitioner was committed to a treatment center as a sexually dangerous person in 2002. In 2005, he filed a discharge under §9. The commonwealth filed a motion to exclude two reports prepared by the petitioner's psychologists right before trial in 2009. The jury found that the petitioner remained sexually dangerous and needed to be civilly committed. The petitioner appealed.

Issue #1: Whether or not the written reports of defense expert witnesses retained by a § 9 petitioner for purposes of the § 9 proceeding are rendered admissible.

Yes because by excluding those reports while accepting the reports from CAB would create an imbalance of evidence and would raise serious due process issue. (LP)

Mark Juliano & others v. Peter Simpson & another

Supreme Judicial Court of Massachusetts   February 21, 2012

Facts: Defendant invited Plaintiff’s boyfriend, Dunbar, and a few friends for a party at her house while her parents were away. Plaintiff went with Dunbar and they brought beer and rum with them to the party. Dunbar had a few beers and a couple mix drinks. He insisted on driving the plaintiff home after they left the party. The vehicle ran into a utility pole and they both sustained injuries.

Issue #1: Whether or not an underage person who does not provide alcoholic beverage but provide a location to others to consume owes a duty of care to intoxicated guests who are later injured.

No. Violation of G.L.c. 138 § 34 cannot establish social host liability. Unless a social host actually served alcohol or made it available, she could be held liable for injury to third parties caused by the drunk driving of a guest. Only nine state extend social host liability to a host who provided a location for underage drinking. (LP)

Fronk v. Fowler

Appeals Court February 21, 2012

Facts:  After years of litigation, defendants prevailed on all counts.  A Superior Court judge determined that plaintiffs’ claims were frivolous and not advanced in good faith and ruled that defendants were entitled to more than $1.23 million in attorney’s fees and costs pursuant to G. L. c. 231, § 6F plus post-judgment interest pursuant to G.L. c. 235, § 8(4) from the date the award was entered on the docket until the date of execution.  Plaintiffs appeal. 

Holding:  Order affirmed.

Issue:  Whether the Superior Court may grant post-judgment statutory interest on an award of attorney’s fees and costs made pursuant to G. L. c. 231, § 6F.(3)?

Yes.  §8 provides that “[e]very judgment for the payment of money shall bear interest  from the day of its entry . . . as provided for prejudgment interest in such award, report, verdict or finding.”  First, the fact that §6F does not explicitly provide for interest does not preclude analysis under §8 because the Legislature was not required to provide a redundant provision ordering interest awards under § 6F.  Second, under §8, the award of fees and costs here qualifies as a “judgment” because it was subject to immediate appeal, and, at the time the interest was ordered on the §6F award, the appeal of the §6F award by the plaintiffs was finalized.  Further, because the § 6F award of attorneys’ fees and costs was a judgment for the purposes of §8, “[t]he addition of post-judgment interest is an automatic ministerial task and a judge need not expressly allow it.”  Karellas v. Karellas, 54 Mass. App. Ct. 469, 475 (2002).  Thus, the fact that the judge ordering the original §6F award did not mention interest is no bar for the defendants. (LP)