Cite this page 39 MLW 1883 | www.masslawyersweekly.com July 11, 2011 | Massachusetts Lawyers Weekly | 15

ADMINISTRATIVEDEP - Clean Waters ActThe Department of Environmental Protection

acted permissibly under the Clean Waters Act inpromulgating “cooling water intake structures”regulations implementing its authority toregulate components of industrial facilities thatwithdraw water from surface waterbodies, theSupreme Judicial Court holds.Entergy Nuclear Generation Company v.

Department of Environmental Protection (LawyersWeekly No. 10-050-11) (30 pages).

NEPA - Coast GuardCoast Guard regulations concerning vessels in

Buzzards Bay are invalid in that they werepromulgated in violation of the Coast Guard’sobligations under the National EnvironmentalPolicy Act, the 1st U.S. Circuit Court of Appealsrules.United States, et al. v. Coalition for Buzzards Bay,

et al. (Lawyers Weekly No. 01-116-11) (28 pages).

ARBITRATIONCommunity college positionIt is beyond the authority of an arbitrator to

question the judgment that a collegeadministration exercises in evaluatingcandidates for a faculty appointment, even if acollective bargaining agreement can beinterpreted as subjecting such issues toarbitration, the Appeals Court says.Massachusetts Board of Higher Education/Holyoke

Community College v. Massachusetts TeachersAssociation/Massachusetts Community CollegeCouncil/National Education Association (LawyersWeekly No. 11-044-11) (19 pages).

Termination - Civil serviceA remand must be ordered — following a

judge’s confirmation of an arbitration award infavor of the Burlington school departmentconcerning the firing of a cafeteria manager —because of a contested issue regarding themanager’s civil service status, the Appeals Courtholds.American Federation of State, County and

Municipal Employees, Council 93, AFL-CIO v. SchoolDepartment of Burlington (Lawyers Weekly No. 11-001-11) (7 pages).

ATTORNEYSLegal malpractice - Damages An argument made by an attorney found

liable by a jury for malpractice, that the verdict

should be reduced based on a contingent feewith the plaintiff client, must be rejected onequitable grounds, a Superior Court judgeconcludes.Cintra v. Law Office of Dane M. Shulman

(Lawyers Weekly No. 12-078-11) (8 pages).

WithdrawalA law firm must continue representing a client

after the lawyer assigned by the firm to the casedecided to leave the practice of law temporarily,the client could not find successor counsel anddiscovery was behind schedule, the SupremeJudicial Court determines.Kiley, petitioner (Lawyers Weekly No. 10-070-11)

(16 pages).

BANKRUPTCYGAL feesFees a Chapter 7 debtor owes to an attorney

who acted as guardian ad litem during thedebtor’s pre-petition divorce proceedingconstitute a nondischargeable debt, a U.S.Bankruptcy Court judge holds. In Re: Gove, Thomas E., Jr. (Lawyers Weekly No.

04-003-11) (21 pages).

Sanction - FeesA creditors’ attorney, who violated Rule 9011

of the Federal Rules of Bankruptcy Procedure,should be sanctioned by being required to paycounsel fees incurred by the debtor, a U.S.Bankruptcy Court judge decides. In Re: Gomez, Alina (Lawyers Weekly No. 04-015-

11) (8 pages).

Violation of stay - Asset removalA debtor’s removal of estate assets from the

premises with which they were imminently to besold constituted a violation of the automaticstay, a U.S. Bankruptcy Court judge decides. In Re: Sayeh, Mouldi (Lawyers Weekly No. 04-

024-11) (15 pages).

BANKS AND BANKINGLender liability - InstrumentalitytheoryA claim filed by architects who worked on a

construction project — seeking to hold liable thedefendant bank that financed the project —must be rejected under the instrumentalitytheory, a Superior Court judge determines. Creative West Architects, LLC, et al. v. Downtown

Natick Development Co., LLC, et al. (LawyersWeekly No. 12-070-11) (10 pages).

CIVIL PRACTICECommitment procedure -Courtroom closureA judge committed no error in refusing to

order the courtroom closed during arecommitment hearing, as the plaintiff did notshow any overriding interest that was likely to beprejudiced absent closure, the Supreme JudicialCourt determines.Kirk v. Commonwealth (Lawyers Weekly No. 10-

032-11) (16 pages).

EMTALASummary judgment was properly awarded to

a hospital which had been sued under theEmergency Medical Treatment and Active LeaveAct by parents whose son died during a hospitaltransfer, as the hospital provided the transfer inthe best interests of the patient, the 1st U.S.Circuit Court of Appeals rules.Ramos-Cruz, et al. v. Centro Medico del Turabo,

et al. (Lawyers Weekly No. 01-081-11) (7 pages).

New trial motionA defendant’s motion for a new trial in an

insurance case on the issue of whether propertydamage was “expected or intended” must bedenied as untimely, a U.S. District Court judge rules.Boston Gas Company v. Century Indemnity

Company (Lawyers Weekly No. 02-265-10) (8 pages).

Sanctions - Fraud on the courtPlaintiffs’ request that a defendant and the law

firm representing that defendant be sanctionedin the amount of $120 million must be deniedbecause of the plaintiffs’ failure to demonstrate,by clear and convincing evidence, that thedefendant or the law firm perpetrated a fraud onthe court, a Superior Court judge decides.Cahaly, et al. v. Benistar Property Exchange Trust

Co., Inc., et al. (Lawyers Weekly No. 12-002-11) (25pages).

Sex Offender Registry Board -Incarceration - Video conferenceThe Sex Offender Registry Board’s

classification of a convicted criminal as a level-three sex offender was valid despite the fact thatthe board conducted a hearing by videoconference while the offender was incarcerated,the Appeals Court determines.Doe, Sex Offender Registry Board No. 1 v. Sex

Offender Registry Board (Lawyers Weekly No. 11-108-11) (21 pages).

CONSTITUTIONALFirst Amendment - ReappointmentA defendant town council’s refusal to

reappoint a plaintiff to an unpaid advisory

opinion after he publicly criticized some of thecouncil’s policies did not amount to a FirstAmendment violation, the 1st U.S. Circuit Courtof Appeals holds.Foote v. Town of Bedford, et al. (Lawyers Weekly

No. 01-097-11) (17 pages).

CONSUMERPROTECTION

AuctioneerA defendant auctioneer had no legal duty to

examine a bank’s authority to pursue foreclosureon the plaintiff’s home and therefore cannot beheld liable under G.L.c. 93A, a Superior Courtjudge determines.Graham v. Aames Funding Corporation, et al.

(Lawyers Weekly No. 12-317-10) (6 pages).

Building code violationsThe defendants’ noncompliance with the

building code and a city “change in use”requirement amounted to violations of G.L.c.93A, a Superior Court judge concludes.Klairmont, et al. v. Gainsboro Restaurant Inc., et

al. (Lawyers Weekly No. 12-020-11) (28 pages).

FDPCAA letter sent by the defendants to the plaintiff

was only an invitation to negotiate and thereforedid not violate the Fair Debt Collection PracticesAct, a U.S. District Court judge determines.Waters v. Kream, et al. (Lawyers Weekly No. 02-

059-11) (6 pages).

CONTRACTAmbiguityA judge, who found that a contract contained

a significant ambiguity about which the partieshad never reached a meeting of the minds, actedpermissibly by (1) inserting a term to implementthe parties’ stated business objectives and (2)declaring the resulting agreement binding, theAppeals Court says.Browning-Ferris Industries, Inc. v. Casella Waste

Management of Massachusetts, Inc. (LawyersWeekly No. 11-069-11) (24 pages).

Credit card accounts - InterestCredit card interest rate charges above 18

percent are unconscionable and “so outrageousas to warrant holding [them] … unenforceable,” aSuperior Court judge decides.Citibank (South Dakota), N.A. v. DeCristoforo

(Lawyers Weekly No. 12-001-11) (12 pages).

This annual section contains summariesof “important opinions” that were pub-lished in Massachusetts Lawyers Week-

ly in the first six months of 2011.The “Important Opinions of the Week” that

appear on the front page of the newspaper areselected from the decisions issued and receivedthe previous week. The summaries cover rul-ings from the appellate and trial courts in Mas-sachusetts, as well as from MCAD and otherstate agencies.The full text of any opinion from the 1st U.S.

Circuit Court of Appeals, Bankruptcy Appel-late Panel, U.S. District Court, U.S. Bankrupt-cy Court, U.S. magistrate judges, Supreme Ju-dicial Court and Appeals Court can beobtained without cost by visiting wwwmass-lawyersweekly.com.All other court opinions included in this sec-

tion can be ordered from www.lwopinions.com.

The complete Lawyers Weekly digest of anybrief summary contained here can be foundby searching Massachusetts Lawyers Weekly’sarchives at www.masslawyersweekly.com.Please note that, while Lawyers Weekly re-

ceives all decisions of the appellate courts inthe state, the newspaper relies on individualjudges and attorneys to inform it of trial courtrulings that might be of interest to the bar.Please consider sending in these rulingswhether or not they seem like significant cas-es. Upon request, the names of the attorneysof record in the case will be included in thepaper.If you wish to submit a trial court decision,

please mail it to: Thomas E. Egan, Massachu-setts Lawyers Weekly, 10 Milk St., Suite 1000,10th Floor, Boston, MA, 02108-4649. Ques-tions can be directed to Tom at (617) 218-8166or at tom.egan@lawyersweekly.com.

Continued on page 16

MOST IMPORTANT OPINIONS

January - June 2011JASON SCALLY

16 | Massachusetts Lawyers Weekly | July 11, 2011 www.masslawyersweekly.com | Cite this page 39 MLW 1884

LIGHTEN YOUR LOAD WITH

NEW WESTLAW FORM BUILDER.

TED AND HIS ESTATE PLANNING FORMS

WERE INSEPARABLE.

Westlaw® Form Builder can take your Massachusetts estate planning forms from tedious to

streamlined, from time-consuming to cost-effective. This new online document assembly tool

delivers continually updated and lawyer-tested forms, plus state-of-the-art automation to build

them. No-charge linking to related content on WestlawNext™, too, including the Massachusetts

Practice Series and Massachusetts General Laws Annotated. Embrace the future with Westlaw

Form Builder.

For more information, call 1-800-759-5418 or visit west.thomson.com/formbuilder.

© 2011 Thomson Reuters L-369483/7-11

Thomson Reuters and the Kinesis logo are trademarks of Thomson Reuters.

Non-compete agreementA request for a preliminary injunction to

enforce non-compete provisions in anindependent contractor/consultant agreementwill be denied because the basis for personaljurisdiction is dubious and the plaintiff has notshown a likelihood of success on the merits.

Maine Pointe, LLC v. Starr, et al. (Lawyers WeeklyNo. 02-045-11) (7 pages).

Non-compete agreementA company will be granted a preliminary

injunction barring a former sales engineer fromworking for a competitor where the engineersigned a non-compete agreement and hisknowledge of his former employer’s productwould inevitably surface during his newemployment, a Superior Court judge concludes.

Empirix Inc. v. Ivanov (Lawyers Weekly No. 12-098-11) (5 pages).

COPYRIGHTSitcomsA jury rightly held a defendant liable for

copyright infringement where the setting,character names, costumes, character interactions,comedy line, mood and camera angles werealmost identical in the defendant’s situationcomedy and in a prior one produced by theplaintiffs, the 1st U.S. Circuit Court of Appeals rules.

TMTV Corp. v. Mass Productions, Inc., et al.(Lawyers Weekly No. 01-143-11) (22 pages).

CORPORATECounsel - CompensationAn agreement under which an attorney

received corporate shares as payment for legalservices was valid, the Appeals Court rules.

Rubin v. Murray, et al. (Lawyers Weekly No. 11-046-11) (31 pages).

Selling shares - Good faith and fair dealingThe plaintiff stockholders in a “Subchapter S”

corporation have the freedom to sell their sharesunder Article 5 of the corporation’s Articles ofOrganization but are nevertheless subject to theimplied covenant of good faith and fair dealing,a Superior Court judge decides.

Merriam, et al. v. Demoulas Super Markets, Inc.,et al. (Lawyers Weekly No. 12-063-11) (19 pages).

CRIMINALCSRA violations - Jury instructionsA judge acted permissibly in instructing a jury

that a defendant could be found guilty ofviolating the Child Support Recovery Act so longas the jury concluded beyond a reasonabledoubt that he was able to pay at least a portion

of his child support obligation but failed to do so,the 1st U.S. Circuit Court of Appeals says.

United States v. Carlson (Lawyers Weekly No. 01-110-11) (3 pages).

Felon in possession - EstoppelA judge presiding over the trial of a defendant

charged with being a felon in possession of afirearm did not err in excluding evidence that thedefendant had been assured by his probationofficer that he could lawfully go hunting, the 1stU.S. Circuit Court of Appeals determines.

United States v. Small (Lawyers Weekly No. 01-075-11) (8 pages).

Improper firearm storageA defendant’s conviction for improper firearm

storage should be upheld, as the firearm storagestatute does not violate the Second Amendment,the evidence was sufficient to show the gun wasnot within the defendant’s control and a child’sstatement without her live testimony was notserious error, the Appeals Court says.

Commonwealth v. Patterson (Lawyers WeeklyNo. 11-071-11) (9 pages).

Inducing a minor to becomeprostituteA defendant’s conviction on the charge of

inducing a minor to become a prostitute mustbe reversed because of the commonwealth’sfailure to prove that the minor was not already aprostitute, the Appeals Court decides.

Commonwealth v. Matos (Lawyers Weekly No.11-009-11) (21 pages).

Larceny - Allegedly sleeping jurorA defendant’s conviction of larceny under

$250 must be overturned because the trial judgeerred in failing to hold a hearing in order todetermine whether a juror had been sleepingduring trial, the Appeals Court determines.

Commonwealth v. Dyous (Lawyers Weekly No.11-088-11) (10 pages).

Murder - Brother’s pretrialstatementsA judge acted permissibly in admitting

substantively pretrial statements made by amurder defendant’s younger brother indicatingthat the defendant, armed with a gun, was at thecrime scene, the Supreme Judicial Court decides.

Commonwealth v. Adams (Lawyers Weekly No.10-017-11) (15 pages).

Pyramid schemeA defendant’s conviction for setting up or

promoting a lottery was sufficiently supportedby evidence of a pyramid scheme, the AppealsCourt determines.

Commonwealth v. Stewart-Johnson (and acompanion case) (Lawyers Weekly No. 11-011-11)(14 pages).

Recalcitrant witness lawA federal judge has acted permissibly in

ordering the state to toll an appellant’s state

sentence while the appellant serves time forfederal civil contempt, the 1st U.S. Circuit Courtof Appeals decides.

In Re: Grand Jury (Lawyers Weekly No. 01-074-11) (9 pages).

Restitution - FDCPAThe United States may use the Federal Debt

Collection Procedure Act’s garnishmentprocedure to enforce a restitution order in favorof a private-party victim of crime, the 1st U.S.Court of Appeals decides.

United States v. Witham (Lawyers Weekly No. 01-141-11) (22 pages).

Sentencing - CrackA defendant, who has been charged with

possessing, with intent to distribute, five gramsor more of crack cocaine, will be sentenced, ifconvicted, under the Fair Sentencing Act of 2010,a U.S. District Court judge decides.

United States v. Watts (Lawyers Weekly No. 02-082-11) (48 pages).

Sentencing - Defendant’s absencefrom hearingA remand must be ordered where the

defendant was not present at a hearing in whicha judge found him to be a career offender andimposed a 90-month prison sentence on him,the 1st U.S. Circuit Court of Appeals holds.

United States v. Bryant (Lawyers Weekly No. 01-131-11) (13 pages).

Sentencing - Ex post facto clauseA defendant, who pleaded guilty to an

indictment charging him with various firearmoffenses, must be resentenced, where a judgeapplied a U.S. Sentencing Guidelines provisionnot in effect at the time of the commission of thecrimes, the 1st U.S. Circuit Court of Appeals rules.

United States v. Rodriguez (Lawyers Weekly No.01-317-10) (10 pages).

Sentencing - ‘Mangos’ ruleThe holding in State v. Mangos, 134 F.3d 460

(1st Cir. 1998), that the boilerplate charginglanguage of assault and battery aloneestablishes a violent felony for Armed CareerCriminal Act purposes, is no longer good law,the 1st U.S. Circuit Court of Appeals rules.

United States v. Holloway, et al. (Lawyers WeeklyNo. 01-014-11) (24 pages).

Tax evasion - SentenceA judge committed no abuse of discretion in

ordering a defendant convicted of tax evasion tofile all unfiled tax returns and pay all outstandingtax arrearages as a condition of supervisedrelease, the 1st U.S. Court of Appeals holds.

United States v. Thomas (Lawyers Weekly No. 01-039-11) (19 pages).

Third-party culprit evidenceA defendant’s first-degree murder conviction

may stand where the trial judge did not err inbarring third-party culprit evidence or in

admitting the medical examiner’s opinion as tothe types of weapons consistent with the victim’sinjuries, the Supreme Judicial Court rules.

Commonwealth v. Ruell (Lawyers Weekly No. 10-036-11) (18 pages).

DAMAGESDiscovery failuresPlaintiffs will be awarded more than $5 million

in damages in light of the defendants’ failures tocomply with discovery requests, a Superior Courtjudge rules.

New England Confectionery Company, Inc. v.Mark Stafford & Sons Transportation Corporation,et al. (Lawyers Weekly No. 12-014-11) (2 pages).

DOMESTIC RELATIONSDivorce - Military retirement payA remand must be ordered where a judge’s

financial disposition in a divorce judgment hasleft the parties in significantly disparatecircumstances, the Appeals Court rules.

Casey v. Casey (Lawyers Weekly No. 11-103-11)(21 pages).

Divorce - MisconductA divorced woman’s challenge to a decision

awarding 90 percent of the marital estate to thehusband must fail, as the judge permissiblyapplied the relevant factors, including the wife’sconviction for soliciting the murder of thehusband, the Appeals Court determines.

Wolcott v. Wolcott (Lawyers Weekly No. 11-005-11) (14 pages).

ELECTIONSCampaign funds - SecurityA district attorney may use campaign funds

for enhanced security in the wake of threats, asthe expenditure would meet the standard forcommittee expenditures and would notconstitute the personal use of campaign funds,the Director of the Office of Campaign & PoliticalFinance concludes.

In Re: Blodgett, Jonathan W. (Lawyers WeeklyNo. 27-022-11) (2 pages).

EMPLOYMENTAlleged disability discriminationAn employer did not commit disability

discrimination by firing an employee who refusedto return to work after being denied an extendedleave of absence to accommodate episodicmigraines, a Massachusetts Commission AgainstDiscrimination hearing officer has held.

Massachusetts Commission AgainstDiscrimination, et al. v. Verizon New England, Inc.(Lawyers Weekly No. 22-004-11) (32 pages).

MOST IMPORTANT OPINIONS | January - June 2011Continued from page 15

ArbitrationIn a situation in which an employee has

signed an employment agreement containingan arbitration clause purporting to coverexpressly claims of employment discrimination,the Massachusetts Commission AgainstDiscrimination may still go forward under G.L.c.151B, §5, to conduct its own independentproceeding with respect to the employee’sallegations of discrimination, the SupremeJudicial Court says.

Joule´, Inc., et al. v. Simmons, et al. (LawyersWeekly No. 10-033-11) (20 pages).

DiscoveryA judge acted prematurely in awarding

summary judgment to a defendant employer ona plaintiff’s claims of discrimination, defamationand breach of contract, given the defendant’sfailure to participate fully in the discovery process,the 1st U.S. Circuit Court of Appeals rules.

Baltodano v. Merck, Sharp & Dohme (I.A.) Corp.,et al. (Lawyers Weekly No. 01-052-11) (14 pages).

Family and Medical Leave Act -‘Healing pilgrimage’

An employer did not violate the Family andMedical Leave Act by terminating an employeefor taking an unapproved seven-week leave toaccompany her husband on a spiritual healingtrip, the 1st U.S. Circuit Court of Appeals decides.

Tayag v. Lahey Clinic Hospital, Inc. (LawyersWeekly No. 01-024-11) (11 pages).

FLSA - Immigration statusA defendant restaurant — charged with

violating the Fair Labor Standards Act by notpaying the plaintiffs minimum wages andovertime — cannot compel the plaintiffs to replyto written questions about their immigrationstatus, as the information sought is not relevant,a U.S. District Court judge rules.

Lin, et al. v. Chinatown Restaurant Corp., et al.(Lawyers Weekly No. 02-064-11) (9 pages).

G.L.c. 151B - Former employeeA person need not be a current employee to

enjoy the protection from retaliation offered byG.L.c. 151B, §4(4) and (4A), the Supreme JudicialCourt rules.

Psy-Ed Corp., et al. v. Klein, et al. v. Hirsch, et al.(and a companion case) (Lawyers Weekly No. 10-072-11) (41 pages).

Non-payment of severanceFor Wage Act purposes, an employee’s wages

include severance pay, a Superior Court judge rules. Juergens v. MicroGroup, Inc. (Lawyers Weekly

No. 12-008-11) (4 pages).

Promotion - ProfessorAn individual who was denied promotion to

full professor status based on disparatetreatment is entitled to promotion, lost wagesand $200,000 in emotional distress damages, aMassachusetts Commission AgainstDiscrimination hearing officer holds.

Sun v. University of Massachusetts, Dartmouth(Lawyers Weekly No. 22-011-11) (50 pages).

Race and color of complainant’sfiancée

A respondent company and its co-respondentpresident discriminated against a complainanttruck driver on the basis of the race and color ofhis fiancée and will be required to pay thecomplainant $50,000 in emotional distressdamages and to pay the commonwealth a civilpenalty of $10,000, a Massachusetts CommissionAgainst Discrimination hearing officer decides.

MCAD, et al. v. American ReclamationCorporation, et al. (Lawyers Weekly No. 22-042-10)(14 pages).

‘Skycaps’ - Tips - PreemptionA judgment — that an airline violated the

Massachusetts tips statute by chargingpassengers a $2 fee for each bag checked with“skycaps” providing curbside service at Boston’sLogan Airport — must be vacated on federalpreemption grounds, the 1st U.S. Circuit Court ofAppeals determines.

DiFiore, et al. v. American Airlines, Inc. (LawyersWeekly No. 01-121-11) (20 pages) (Lawyers WeeklyNo. 01-121-11) (20 pages).

Wage Act - DeductionA company’s written policy — under which a

worker found by the company to be at fault in anaccident involving company trucks may agree toa deduction from earned wages in lieu ofdiscipline — violates the Wage Act, the SupremeJudicial Court determines.

Camara, et al. v. Attorney General, et al. (LawyersWeekly No. 10-015-11) (14 pages).

Wage Act - LLCDefendant managers and officers of a limited

liability company cannot be held individuallyliable under the Wage Act because a limitedliability company is not a corporation and only“officers or agents having the management of [a]corporation” can be found individually liableunder the Act, a Superior Court judge holds.

Cook v. Patient EDU, LLC, et al. (Lawyers WeeklyNo. 12-112-11) (7 pages).

Wage Act - Retirement deductionsDefendants violated the Wage Act and should

pay treble damages where they deducted sumsfrom a plaintiff employee’s weekly paycheck butdid not place them in a retirement account aspromised, a Superior Court judge rules.

Pacheco v. H.N. Gorin. Inc., et al. (Lawyers WeeklyNo. 12-093-11) (16 pages).

Whistleblower suit - JurisdictionThe U.S. District Court, not the Financial

Industry Regulatory Authority arbitration panel,has jurisdiction over a plaintiff’s claim that hewas wrongfully retaliated against, in violation ofthe Sarbanes-Oxley Act, after raising concernsregarding purported misconduct by thedefendants in connection with securitiestransactions, a U.S. District Court judge decides.

Pezza v. Investors Capital Corporation, et al.(Lawyers Weekly No. 02-049-11) (18 pages).

ENVIRONMENTALFine - Mercury

An $18 million penalty, imposed on adefendant for violating federally approved stateregulations as to hazardous waste storage,should be upheld despite the fact that the judge,and not a jury, determined the facts as to theamount of the penalty, the 1st U.S. Circuit Courtof Appeals holds.

United States v. Southern Union Co. (LawyersWeekly No. 01-312-10) (43 pages).

EVIDENCEExpert - Marijuana

A defendant’s drug convictions will be affirmedbecause the prosecution expert’s testimonyconcerning his examination of the substance atissue was sufficient evidence that it wasmarijuana, the Supreme Judicial Court holds.

Commonwealth v. MacDonald (Lawyers WeeklyNo. 10-038-11) (24 pages).

ImpoundmentA document impoundment request made by

a party to an arbitration proceeding should beallowed in part, a Superior Court judge rules.

Dever v. Oppenheimer & Co., Inc. (LawyersWeekly No. 12-299-10) (4 pages).

Revocation of driver’s license -Certificate

A defendant’s conviction for drunk driving whileunder license suspension must be vacated wherethe judge admitted into evidence, withouttestimony from the Registry of Motor Vehicles, aregistry certificate indicating that a notice oflicense suspension or revocation had been mailedto the defendant, the Supreme Judicial Court says.

Commonwealth v. Parenteau (Lawyers WeeklyNo. 10-086-11) (16 pages).

SpoliationAn insurance company, which allowed the

destruction of certain policyholders’ vehicle afteran accident despite an agreement with themthat it would be preserved, has exposed itself toan argument to the jury that the spoliationcaused the policyholders to incur unnecessarylegal expenses in an underlying product liability

action, a Superior Court judge holds.Bagg, et al. v. Ford Motor Co., et al. (Lawyers

Weekly No. 12-068-11) (12 pages).

INSURANCEAttorneys - Fees

An insurance company violated G.L.c. 93A byrefusing to reimburse, at an hourly rate higherthan $150, an attorney who charged $225 anhour to defend a realty trust sued by tenantsalleging mold exposure, the Appeals Court rules.

Northern Security Insurance Co., Inc. v. R.H. RealtyTrust, et al. (Lawyers Weekly No. 11-024-11) (12 pages).

G.L.c. 93ADefendant insurance advisors and attorneys

alleged to have failed to draft insurance trustsand related documents properly could not beheld liable under G.L.c. 93A because theplaintiffs’ damage claims were too speculative towarrant relief, a Superior Court judge decides.

Sherman, et al. v. Shub, et al. (Lawyers WeeklyNo. 12-115-11) (8 pages).

Legal malpractice - Fee disputeA legal malpractice police issued to an

attorney does not cover a suit instituted by thefirm he formerly was associated with for feescollected from clients whom the attorneycontinued to represent after leaving the firm, aU.S. District Court judge rules.

Clermont v. Continental Casualty Co. v.Freedman, DeRosa & Rondeau LLP (LawyersWeekly No. 02-066-11) (29 pages).

PIPA directed verdict for a plaintiff seeking to

recover “personal injury protection” benefits forchiropractic treatment must be reversed, as theplaintiff did not present a prima facie case thatthe patient was an occupant in a vehicle insuredby the defendant at the time of the accident, theDistrict Court/BMC Appellate Division decides.

Excel Physical Therapy, Inc. v. Commerce InsuranceCo. (Lawyers Weekly No. 13-014-11) (7 pages).

LABORCJAM - Court officers

It did not amount to a prohibited laborpractice for the Chief Justice for Administrationand Management of the Trial Court to decideunilaterally to hire nonunion per diem courtofficers to provide security services in the SuffolkCounty Superior Court, the Appeals Court rules.

Chief Justice for Administration andManagement of the Trial Court v. CommonwealthEmployment Relations Board (Lawyers Weekly No.11-077-11) (21 pages).

LANDLORD AND TENANTCommercial lease - Escrow

A commercial tenant committed breach ofcontract by paying rent to the seller of thepremises instead of to an escrow agent asmandated by an escrow agreement, a SuperiorCourt judge rules.

Resnick v. Wyman-Gordon Co., et al. (LawyersWeekly No. 12-314-10) (17 pages).

Reasonable accommodation -Emotional support dog

Apartment building owners, who refused toallow a tenant suffering from AIDS and relatedillnesses to keep an emotional support dog,must pay him $25,000 in emotional distressdamages, a Massachusetts Commission AgainstDiscrimination hearing officer rules.

Massachusetts Commission AgainstDiscrimination, et al. v. Brighton GardensApartments, LP, et al. (Lawyers Weekly No. 22-007-11) (17 pages).

Unsafe condition - Commercial leaseThe statutory duty of a landlord under G.L.c.

186, §19, to exercise reasonable care to correctan unsafe condition described in a written noticefrom a tenant applies to commercial leases, theSupreme Judicial Court rules.

Bishop v. TES Realty Trust, et al. (Lawyers WeeklyNo. 10-026-11) (17 pages).

MORTGAGESForeclosure - Assignment

Plaintiffs, who were not the original mortgageesof certain properties, (1) failed to make therequired showing that they were the holders of themortgages at the time of foreclosure and (2) as aresult, did not demonstrate that the foreclosuresales to them validly conveyed title, the SupremeJudicial Court says.

U.S. Bank National Association v. Ibanez (and aconsolidated case) (Lawyers Weekly No. 10-005-11)(32 pages).

MOTOR VEHICLESBreath test readings

A defendant’s drunk driving conviction will beaffirmed where the judge’s erroneous decision toallow two breath test readings into evidence washarmless, the Appeals Court determines.

Commonwealth v. Rumery (Lawyers Weekly No.11-022-11) (9 pages).

OUIA defendant, who was found slumped over the

steering wheel of a vehicle with the key in theignition, was properly charged with operating amotor vehicle under the influence of intoxicatingliquor despite the fact that the engine was notrunning, the Appeals Court holds.

Commonwealth v. McGillivary (Lawyers WeeklyNo. 11-018-11) (17 pages).

OUI - CertificationAn annual certification, and accompanying

diagnostic records, attesting to the properfunctioning of the breath testing machine usedto test a defendant’s blood alcohol content areadmissible in an OUI prosecution without thelive testimony of the technician who performedthe machine certification test, the SupremeJudicial Court rules.

Commonwealth v. Zeininger (Lawyers WeeklyNo. 10-080-11) (26 pages).

OUI - License suspensionThe Registrar of Motor Vehicles may consider

restoring the driving privileges of a defendantconvicted of drunk driving for a third time eightyears after his latest conviction, the AppealsCourt determines.

DiGregorio v. Registrar of Motor Vehicles, et al.(Lawyers Weekly No. 11-032-11) (18 pages).

NEGLIGENCEDram shop suit

Where (1) a nightclub patron who was injuredin a fall settled with the nightclub for $400,000 and(2) the nightclub has since sought indemnificationand contribution from a restaurant where theinjured patron had attended a birthday partyearlier that evening, the nightclub’s request must

Cite this page 39 MLW 1885 | www.masslawyersweekly.com July 11, 2011 | Massachusetts Lawyers Weekly | 17

������������ �����

������ �� ������������

15% OFFAny Arrangement

(617) 269-7271 www.stapletonfloral.com635 E. Broadway – 200 Seaport Blvd., Boston

MOST IMPORTANT OPINIONS | January - June 2011

Continued on page 18

18 | Massachusetts Lawyers Weekly | July 11, 2011 www.masslawyersweekly.com | Cite this page 39 MLW 1886

fail for lack of evidence that the restaurant wasaware of any intoxication on the part of the patronby the time he was served his last drink there, aSuperior Court judge rules.Felt Enterprises, Inc. v. Chau Chow, II, Inc.

(Lawyers Weekly No. 12-060-11) (9 pages).

Malpractice - Expert witnessA defendant expert witness must be granted

summary judgment on a damage claim filed by aplaintiff client because no fiduciary duty existedbetween the plaintiff and defendant and theplaintiff’s claims, considered tort claims, arebarred by the economic loss doctrine, a SuperiorCourt judge concludes.Albert v. Zabin, et al. (Lawyers Weekly No. 12-

004-11) (8 pages).

Slip and fall injuryA restaurant employee, who fell on ice while

delivering trash to a dumpster, may not recoverdamages from the premises owner because thelatter was unaware of the unsafe condition andthe relevant lease assigned the duty to preventthe relevant hazard to the employer, a SuperiorCourt judge says.Chen v. Bram, et al. (Lawyers Weekly No. 12-094-

11) (6 pages).

Trade associationA trade association has no duty to continue to

perform due diligence to ensure that acommercial sponsor, whose product or servicesit endorses and promotes to its membership,continues to meet certain standards of integrityand/or excellence, a Superior Court judge holds.Deheer v. American Academy of Podiatric

Practice Management (Lawyers Weekly No. 12-013-11) (25 pages).

Wrongful death - Mental health professionalsA judge properly ruled in favor of defendant

mental health professionals in a wrongful deathcase, given the plaintiff’s failure to show that thedefendants had a reasonable basis to believethere was clear and present danger that theirpatient would attempt to kill or inflict seriousbodily injury, the Appeals Court says. Shea v. Caritas Carney Hospital, Inc., et al.

(Lawyers Weekly No. 11-090-11) (17 pages).

Wrongful death - PsychiatristA psychiatrist should be granted summary

judgment in a negligence and wrongful deathsuit brought by the estate of a man whocommitted suicide while under the psychiatrist’scare, as the estate has not demonstrated thatanything the psychiatrist did or allegedly failedto do was the cause of the decedent’s death, aSuperior Court judge rules.Estate of Luck v. Albeck (Lawyers Weekly No. 12-

092-11) (7 pages).

PARENT AND CHILDPaternity - IntestacyThe sworn testimony of a child’s father is

sufficient to demonstrate the unambiguousacknowledgement required by G.L.c. 190, §7, theAppeals Court concludes. Cosgrove, et al. v. Hughes (Lawyers Weekly No.

11-028-11) (15 pages).

Termination of parental rightsA remand must be ordered in a case in which

a mother’s parental rights were terminatedbecause the record does not show whether thetermination would be in the child’s best interests,the Appeals Court holds.Adoption of Thea (Lawyers Weekly No. 11-037-

11) (15 pages).

PATENT ANDTRADEMARK

G.L.c. 93A - UMassThe defendant University of Massachusetts

must be granted summary judgment on a G.L.c.93A claim filed by the plaintiffs in a patent

dispute, as the defendant does not qualify as aperson under the statute, a U.S. District Courtjudge decides. Max-Planck-Gesellschaft Zur Foerderung der

Wissenschaften E.V., et al. v. Whitehead Institute forBiomedical Research, et al. (Lawyers Weekly No. 02-023-11) (37 pages).

PRISONSLibel - Online ‘dating’A newspaper, which published articles on the

topic of online “dating” by incarcerated felons,did not libel a prisoner by including informationabout him that was not actionably false or theresult of actual malice, the Appeals Court holds.LaChance v. Boston Herald, et al. (Lawyers

Weekly No. 11-034-11) (6 pages).

REAL PROPERTYEminent domain - SewerA plaintiff limited partnership, which suffered no

pecuniary harm from the city’s taking by eminentdomain of its private sewer system, is entitled to nocompensation, the Appeals Court decides. North Adams Apartments Limited Partnership v.

City of North Adams (Lawyers Weekly No. 11-012-11) (14 pages).

Subdivision approval - Open spaceA town violated state law where its planning

board imposed as conditions for grantingsubdivision approval that open space be dedicatedfor public use and that the open space actually beconveyed to the town, the Appeals Court holds.Collings, et al. v. Planning Board of Stow

(Lawyers Weekly No. 11-085-11) (20 pages).

Unauthorized practice of lawThe closing or settlement of real estate

transactions require not only the presence butthe substantive participation of an attorney onbehalf of the mortgage lender and certainservices connected with real propertyconveyances constitute the practice of law inMassachusetts, the Supreme Judicial Court rules.The Real Estate Bar Association for

Massachusetts, Inc. v. National Real EstateInformation Services, et al. (Lawyers Weekly No. 10-062-11) (40 pages).

SEARCH AND SEIZUREApartment of former girlfriendA defendant could not successfully contest a

warrantless entry by the police into theapartment of his ex-girlfriend and their seizure ofevidence against him there, as he lacked anyreasonable expectation of privacy with respectto those premises, the 1st U.S. Circuit Court ofAppeals decides.United States v. Battle (Lawyers Weekly No. 01-

053-11) (17 pages).

Electronic surveillanceA defendant’s suppression motion will be

denied in light of the fact that Superior Courtjudges have the authority to issue wiretapwarrants for communications between cellphones, a Superior Court judge determines.Commonwealth v. Miranda, et al. (Lawyers

Weekly No. 12-316-10) (18 pages).

Exit order - Odor of burnt marijuanaA defendant auto passenger’s motion to

suppress evidence found by the police after theyordered him to exit from a vehicle must begranted, as the odor of burnt marijuana was notenough, by itself, to justify a police order requiringthe passenger to remove himself from the vehicle,the Supreme Judicial Court concludes.Commonwealth v. Cruz (Lawyers Weekly No. 10-

059-11) (33 pages).

ImpoundmentA judge’s order suppressing a firearm and

ammunition discovered by the police during theinventory search of a vehicle must be reversed,

as such the evidence was obtained as the resultof a lawful impoundment, the Supreme JudicialCourt determines. Commonwealth v. Eddington (and six

companion cases) (Lawyers Weekly No. 10-034-11)(19 pages).

Laptop computer hard driveDefendants’ motions to suppress the contents

of a laptop computer hard drive must be deniedbecause the defendants lack standing to objectto the search of an item left in a stolen carlawfully impounded by the police, a U.S. DistrictCourt judge concludes. United States v. Soto, et al. (Lawyers Weekly No.

02-096-11) (27 pages).

Nexus - Drug salesThe police had probable cause to search a

defendant’s residence where he was seenleaving and returning to his residence multipletimes to what were either known drug sales or toencounters that could readily be inferred to bedrug transactions, the Appeals Court rules.Commonwealth v. Escalera (Lawyers Weekly No.

11-065-11) (28 pages).

SECURITIESLimitationsA complaint alleging a fraudulent stock sale

was rightly dismissed where the complaint wasnot filed within the Sarbanes-Oxley Act’s two-year statute of limitations, the 1st U.S. CircuitCourt of Appeals decides. FirstBank Puerto Rico, Inc. v. La Vida Merger Sub,

Inc., et al. (Lawyers Weekly No. 01-059-11) (6 pages).

SOCIAL SERVICESSSDI and SSI benefit denials - Due processAn administrative law judge violated the due

process rights of a Social Security DisabilityInsurance claimant by engaging in “off therecord” discussion at the outset of the relevanthearing, a U.S. magistrate judge holds.Betancourt v. Astrue (Lawyers Weekly No. 05-

001-11) (11 pages) (8 pages).

TAXATIONCharitable exemption - FoundationA university foundation is not entitled to a

charitable tax exemption for certain propertywhich the foundation does not occupy, theAppeals Court determines.Board of Assessors of Bridgewater v. Bridgewater

State University Foundation (Lawyers Weekly No.11-104-11) (8 pages).

Heirs - Eminent domainFormer landowners’ heirs, who (1) established

a collective one-half interest in a parcel whichthe defendant town took by eminent domainand (2) were awarded half of the fair value of theproperty, are responsible for paying alloutstanding real estate taxes, not just theportion attributable to their half interest in theland, a Superior Court judge says. Richardson, et al. v. Board of Selectmen of

Blackstone, et al. (Lawyers Weekly No. 12-284-10) (5 pages).

TORTMTCA - Private nuisanceA plaintiff trustee’s private nuisance claim

against the commonwealth — alleging that useand enjoyment of the trust property was hinderedby certain construction activities on a statehighway — was subject to the provisions of theMassachusetts Tort Claims Act and was barred bystatutory exceptions to the waiver of sovereignimmunity, the Supreme Judicial Court decides.Morrissey, trustee, v. New England Deaconess

Association — Abundant Life Communities, Inc., etal. (Lawyers Weekly No. 10-214-10) (24 pages).

SLAPP - Federal preemptionA federal judge’s decision to deny a special

motion to dismiss a due process complaint mustbe vacated, as a state anti-SLAPP statute thatserved as the basis for the dismissal motion isenforceable in federal court, the 1st U.S. CircuitCourt of Appeals rules.Godin v. Schenks, et al.(Lawyers Weekly No. 01-313-10) (27 pages).

WILLS AND TRUSTSAdams Temple and School fundThe city of Quincy, acting as trustee, violated the

terms of a trust established by patriot John Adamsby using the relevant funds to meet municipalneeds, not to benefit religious and educationalinterests, and will be required to pay nearly $3million, a Probate & Family Court judge holds. The Woodward School for Girls, Inc. v. City of

Quincy (Lawyers Weekly No. 15-001-11) (73 pages).

ReformationWhere trustees have requested reformation of

the trust, the request should be granted in lightof the settlor’s intent regarding taxes.Bruner, et al. v. Bruner, et al. (Lawyers Weekly No.

10-016-11) (3 pages).

WORKERS’COMPENSATION

IME - Cross-examinationA workers’ compensation claimant, who

submitted to a medical exam pursuant to G.L.c.152, §45, was entitled to a copy of the medicalreport of that exam and to use the report tocross-examine the independent medicalexaminer appointed pursuant to G.L.c. 152,§11A, the Supreme Judicial Court rules.Higgins’s Case (Lawyers Weekly No. 10-090-11)

(20 pages).

Immunity - G.L.c. 152, §23A general contractor’s payment of workers’

compensation benefits to an employee of anuninsured subcontractor did not provide thegeneral contractor with immunity fromcommon-law claims for negligence andwrongful death filed on behalf of the employee,the Supreme Judicial Court holds. Wentworth v. Henry C. Becker Custom Building

Ltd. (Lawyers Weekly No. 10-079-11) (10 pages).

ZONING Comprehensive permitA zoning board erred when, in granting a

comprehensive permit for affordable housing, itimposed conditions making the projectuneconomic and inconsistent with local needs,the Housing Appeals Committee holds.Haskins Way, LLC v. Middleborough Zoning

Board of Appeals (Lawyers Weekly No. 27-013-11)(32 pages).

Counsel feesA plaintiff will be ordered to pay a defendant

more than $62,000 in counsel fees, where theplaintiff, without standing, filed a frivolous andinsubstantial appeal of a planning boarddecision entered in the defendant’s favor, a LandCourt judge determines. Medeiros, trustee, v. Baldwin Brothers, Inc., et al.

(Lawyers Weekly No. 14-128-10) (11 pages).

Special permit - Ocean viewPlaintiffs lack standing to challenge a special

permit grant to their neighbors where evidenceindicates that a proposed seven-foot addition tothe neighbors’ home would have only a deminimis impact on the plaintiff’ ocean view, theSupreme Judicial Court decides.Kenner, et al. v. Zoning Board of Appeals of

Chatham, et al. (Lawyers Weekly No. 10-035-11) (17 pages).

MOST IMPORTANT OPINIONS | January - June 2011Continued from page 17

Visit www.masslawyersweekly.com