Applicable Standard for Termination of a Restraining Order

defendant who seeks to terminate a 209A restraining order must show by clear and convincing evidence that, as a result of a significant change in circumstances, it is no longer equitable for the order to continue because the protected party no longer has a reasonable fear of imminent serious physical harm. This rule was announced in the case of MacDonald v. Caruso, 467 Mass. 382 (2014). Continue reading

Supplementary Process Appeal Inappropriate Barring Incarceration

A judge in a supplementary process proceeding may find a judgment debtor in civil contempt of court for non-payment when there is “clear and convincing evidence of a disobedience to a clear and unequivocal command” and the debtor failed to pay without excuse. In re Birchall, 454 Mass. 837, 853 (2009). Civil contempt is remedial, not punitive, in nature; it is to coerce performance by the disobedient party. Continue reading

A Long History of Poor Performance No Basis for Claim of Workplace Retaliation

A prominent hotel requires banquet servers to set up and work events. As stated in the hotel’s employee handbook–attendance is imperative to the job. A banquet server began having attendance issues and received several warnings. Over a year later, the worker became a named plaintiff in a lawsuit brought by banquet workers against the hotel for violating their rights under the Wage Act and the Tips Act. The worker’s attendance problems continued. The suit was settled in favor of the banquet workers. Several months later, the worker was terminated. Was the termination workplace retaliation?

Karatihy lost his case to summary judgment in the Superior Court because he could not establish causation between his participation in the lawsuit and his termination. The MA Appeals Court affirmed.Karatihy v. Commonwealth Flats Development Corp., 2012-P-1353, Sept. 18, 2013. Continue reading

Rule 56(f): Precursor to a Substantive Opposition to Summary Judgment

Rule 56(f) provides a defense to those who cannot present, by affidavit, facts essential to justify opposition to summary judgment—in short, it is a means to argue that summary judgment is premature. “When properly invoked, Rule 56(f) allows a party opposing summary judgment additional time to conduct discovery on matters related to the motion.” C.B. Trucking v. Waste Mgmt., 137 F.3d 41, 44 (1st Cir. 1998) (citing Resolution Trust Corp. v. North Bridge Assoc., 22 F.3d 1198, 1203 (1st Cir. 1994)). A party’s motion for summary judgment may be challenged directly if there is a genuine issue of material fact, or indirectly if the case needs to develop further. Continue reading

Is a Condo Owner’s Balcony a Common Area?

No, this is not a trick question. After cross motions for summary judgment were heard, the Superior Court decided the issue in the negative; however, the MA Appeals Court only affirmed the trial court’s decision regarding the balcony, but reversed the trial court’s decision as to the support beams serving no other purpose than to support the balcony.  Sano v. Tedesco, No. 12-P-746 (Aug. 28, 2013). Continue reading

Doctrine of Absolute Privilege: Judges, Court Reporters, and Prosecutors

A few days ago I published an article regarding Attorney’s Absolute Litigation Privilege. The discussion about the doctrine of absolute privilege identified application beyond attorneys. For an expanded application of the privilege one may examine one of Robert Aldrich’s many filing in the United States District Court for the District of Massachusetts. See Aldrich v. Considine, No. 13-11405-DPW, 2013 U.S. Dist. LEXIS 123733 n.1 (D. Mass. Aug. 29, 2013). Continue reading

Attorney’s Absolute Litigation Privilege

A recent decision of the MA Appeals Court addressed the attorney’s absolute litigation privilege. See Linn v. Corr, 84 Mass. App. Ct. 1107 (2013). After years of litigation in the Family Court, Appeals Court, and Supreme Judicial Court, Peter Linn sued his ex-wife’s divorce and post-divorce lawyers alleging interference with contractual relations, abuse of process, and reckless infliction of emotional and physical distress. Continue reading

Reporting Settlement is Not Announcing an Option to Settle

An unreported decision of the MA Appeals Court reinforces the principle that reporting a settlement agreement is an affirmative act of finality, not an option to settle. A to Z Integrated Systems v. Prashad, 83 Mass. App. Ct. 1134 (2013) (Rule 1:28 Decision). Continue reading

Mutual Mistake Doctrine Protects Only Vigilant Parties to a Contract

The mutual mistake doctrine exists to effectuate the agreement intended by parties to a contract where the contract language fails to capture that agreement. Mutual mistake does not occur when a mistaken belief was not communicated and the topic was not discussed during negotiations and upon receiving the written insurance policy the holder does not object to the terms therein. Caron v. Horace Mann Ins. Co.,466 Mass. 218 (2013). Continue reading