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 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) 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
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
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
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
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
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
In a clear case of undue influence, the MA Appeals Court affirmed the trial court’s dis-allowance of Alice Sharis will on the grounds of lack of testamentary capacity and her grandson’s undue influence. In the Matter of the Estate of Alice R. Sharis, 83 Mass. App. Ct. 839 (2013). Continue reading
The case of Nordberg v. Dept. of Educ., 465 Mass. 1017 (2013), illustrates the failure to petition the correct court for interlocutory appellate relief (i.e., to challenge an order of the trial court that is not a final order).
In Nordberg the petitioner properly sought interlocutory relief in the MA Appeals Court, under Mass. Gen. Laws ch.231, § 118 (first paragraph), lost, and failed to request further appellate review in the MA Appeals Court. Rather, he twice sought further interlocutory relief in the MA Supreme Judicial Court (SJC) by way of its general superintendence power over all courts of the Commonwealth, under Mass. Gen. Laws ch. 231, § 3. The petition to the SJC and subsequent appeal to the full court never had a chance of success because it was procedurally inappropriate.
Seeking appellate review of an interlocutory decision requires knowledge of the appellate court’s single justice practice and procedure. Simple mistakes will doom a petition for relief from the outset resulting in a waste of resources on the part of the parties and the courts. Continue reading