Oral Arguments, May 8, 2026, Vuono, Neyman, Smyth, JJ., presiding

Added: 2026-05-09

[00:04:15]on a four o'clock in the afternoon on a Monday was $780.

[00:04:23]>> Come on. Go >> watch TV.

[00:04:26]>> Court rise.

[00:04:27]>> I don't sleep during the last time. Last time I was there.

[00:04:38]Hear ye, hear ye, hear ye all persons having anything to do before the honorable the justices of the appeals court now sitting at Boston within and of the commonwealth draw near. Give your attendance and you shall be heard. God save the commonwealth of Massachusetts.

[00:04:53]Court is open. Please be seated.

[00:04:57]>> Thank you very much and welcome to today's sitting of the appeals court. To my right is Justice Eric Nyman. To my left is Justice Paul Smith. My name is Arian Vuno. We've already had some technical issues today, so we apologize for the late start. So, we'll get we'll get right to it. The first case is John Doe 21732 versus the Sex Offender Registry Board, case number 2025-P 0148. And I know both of you know that you have 15 minutes to present your argument and that we've already read everything that you have presented to us. And so, we look forward to hearing your most important points.

[00:05:33]>> Thank you. Go ahead. Proceed. Fred Burkeolder on behalf of John Doe 21732.

[00:05:39]Your honors, what I'd like to speak about today is what I perceive to be a gap between what the regulations um provide concerning defense-free time in the community and what the science is establishing.

[00:05:56]the issue in a in a nutshell in in this case other than of course the issue I raised which is balancing and mechanical application but I think that's fairly well presented in the in the brief and doesn't need to be um repeated is we have a situation where although certainly the issue is addressed by the regulations in do 515164 it was determined that if in fact the regulations don't encompass what the science says, then either an expert is necessary, a remand is necessary, or otherwise.

[00:06:33]>> So the question is, does in fact what's in the regulations encompass what the science says? And I'm here to say I don't think so. And the reason I say it is because Dr. Hansen is, as we all know, one of the most respected scientists in this area.

[00:06:50]He came up with the concept of dissidence. distance is is a significant concept in that and my sister and I have talked about this quite a bit at length which is it is it is in essence almost the same as a 20-year passes and and you're relieved from administration.

[00:07:08]That's how low um the the risk level arrives. So the question becomes what do we do in a situation like this where we have a guy that's been 18 years out offense free in the community frankly has adjusted well done well >> the question is whether or not the hearing examiner considered that right >> yes and the language that that that was used to say it considered which is that it's contemplated in the regulations or it says it's reference in the regulations is the very same language which occurred in 3548 which was my case. Um, and in that case, the I I looked back at my brief this morning.

[00:07:45]Factor 29 was given full credit in that case, and the same language was used, and that particular panel said that's not enough. There has to be a more thorough and nuanced evaluation of whether or not the studies that were presented apply >> to this individual and his circumstances. That didn't happen in this case, and that's what I wanted to have happen. And I think it would have made a difference given the fact that 18 years is a considerable period of time along the parameters that those studies state and I don't need to repeat them.

[00:08:19]Um they're set forth in great detail in in my brief and the studies are of course attached. So I don't know >> that's the gap as far as you're concerned. You you've articulated it for us.

[00:08:31]>> Pardon me please.

[00:08:32]>> That's the gap as far as your concern which you you have articulated for us.

[00:08:36]oftenimes I get the question which is how do we resolve it and I don't know that I have an answer for that because you of course you can't have an expert in every case um but in the same respect you can't have much the same as the issue of factor 37 is being addressed and was addressed by the SJC yesterday and on a different issue you can't have something that's not based upon empirical science and here the empirical science is very clear that says dissidence does occur but the regulations don't provide for that So >> the hearing examiner provided in part with regard to factor 29 found in part the risk of reoffense decreases for most offenders after living in the community offense free for 5 to 10 years. The risk of reoffense lowers substantially after 10 years of offense-free time in the community. Is there anything in that most recent Hansen article that is inconsistent with that statement?

[00:09:28]>> It defines dissonance as follows. states the individual's risk of future sexual offending has dropped below a level where there is no longer any public protection benefit to sexual offender specific interventions.

[00:09:41]>> Sounds pretty sounds pretty consistent to me.

[00:09:43]>> I I think that well here let's put it this way. If if the the result would have been a level one offense and no internet dissemination or at least internet publication, then I would tend to agree with you. But to keep somebody at a level two, but yet say that what that regulation says is consistent with dissonance, there's a conflict there based upon the definition I just read. And and you know what results from application of the factor? So I think there is a gap. I think that a level one would make me happy. I'll go home. Thank you very much. I don't see that happening. But but that's the result. I think that that would make the most sense. I don't know that an expert's going to say much more than Dr. Hansen is going to say other than speak to the particulars of this individual, but this issue's been addressed once and and that was the decision that came out which was that's not enough of an explanation. It was the same explanation my sister cites to a decision which was four years before um Dr. Hansen studies came out. I couldn't tell from the decision what studies were contemplated, but I don't think it's the same issue here. Here we're talking about a gap >> and it's not accounted for in LA.

[00:11:04]>> Okay.

[00:11:05]>> Also, I'd say that the regs have been updated. I think it was 25 or 26 and they now cite one of the Hansen articles that you have included. Um but my question is for for every fact there's a continuum minimum weight full weight um and and he received full weight for 29.

[00:11:25]So if there were an error um sister in a moment may argue it was harmless but what would the benefit have been?

[00:11:33]>> Well the same error the same degree of weight was afforded in 3548 when they found that the explanation as to why that study didn't apply to that individual was present. same thing same factor 29 same full weight was applied still explanation which was it's cited by the regula or it's it's considered in the regulations wasn't enough so I don't know if that answers your question but that's that's how I see it which is and and my sister makes an argument in her brief which I I've heard more than one time which is you can only get full weight well that's fine except that's not what the science is saying the science is saying something different and we have to base these things on something. We already have enough differential reliance upon the board and and you know I have tremendous respect for what they do and the like, but they've got to base these things upon science or we're in no man's land and we're at pick and choose. And that's kind of where I feel we are on this issue much the same as the issue that was before the SJC yesterday, which is again no science, but we can consider multiple offenses and we can bypass the NA constitutional argument by saying we're not dealing with compulsiveness. Well, the SJC saw that argument before and said it wasn't teed up in the last case, but somebody tees it up properly and presents it or demands the evidence of the studies and it wasn't produced, then we've got a different story. Mhm.

[00:12:56]>> That's where I'm at here.

[00:12:57]>> Okay.

[00:12:59]>> Thanks. Any >> further questions?

[00:13:01]>> I don't I don't see Thank you very much.

[00:13:03]>> Thank you.

[00:13:03]>> I always appreciate everyone's advocacy in these issues.

[00:13:08]>> Counselor, >> thank you. Good morning, your honors.

[00:13:10]Nancy Morreny appearing on behalf of the Sex Offender Registry Board.

[00:13:14]>> I'm just going to ask you to lean into your microphone a little bit more so I can hear you a little bit better.

[00:13:18]>> Is that better?

[00:13:18]>> That's much better. Thank you.

[00:13:21]Um, this case is about whether the hearing examiner properly considered the articles in regards to offense-free time in the community and whether the level two classification was supported by substantial evidence. Here the hearing examiner include consideration of all the evidence including the articles and found that there were two high-risisk factors and eight risk elevating factors that applied that supported lowering his risk from a level three to a level two.

[00:13:49]In regards to the scholarly articles that do raises in his brief, those only addressed offense free time in the community, I will note that in the superior court, only the articles regarding collateral consequences were addressed there. So this court might find that this issue is already waved.

[00:14:07]However, if it's not considered waved, the hearing examiner in the decision explicitly states that he considered all the articles and he explained why he gave them little weight in his overall analysis. It's different than the case that do relies upon because he gave that further analysis. He didn't just say, "I considered them."

[00:14:30]Second, as your honors noted, the hearing examiner already gave factor 29 full weight, and a hearing examiner cannot give more than full weight to a factor. Um, the appellent essentially arguing that giving more weight to the offense-free time in the community, once you hit a certain level, then no other factor matters. And that's contrary to what the regulations specifically say. They provide this 38 factors that the hearing examiner is supposed to consider in this qualitative analysis and it's not one factor that's going to completely outweigh all the others.

[00:15:06]Um, third, it's important to note that these are statistical studies that make conclusions of a general view and the numbers that stand for he has a zero risk of reoffense don't apply here. If you look um on appellence page 26 of his brief, it states that depending on the static 99R score, offenders may reach a certain level of desistance after a certain number of number of years offense free.

[00:15:33]However, in this case, there was no static 99R. So, that article couldn't even be considered relevant here because there was no 99R score. So, therefore, that offender doesn't fall within one of those offenders that this article is even studying.

[00:15:50]Sorry, you said earlier that the hearing examiner said he did consider the articles and he draw he digs down into a 1998 and I think 2002 article by Hansen and say these are similar to these other articles but those other articles came in 2017 and I I some other more recent time. Isn't the hearing examiner obligated to actually reference those in some form and at least drill down on whether there are distinctions between those articles in 2017 versus the ones that have already been sort of embedded into the regulations, the articles from 98 and 2002 >> only if there is evidence in it that's not already encompassed within the regulation. And the decision shows the hearing examiner picked a few of the articles. He didn't go through every single one and showed why there was some differences. But as he noted in the decision, factor 29 was already given full weight. So you can't give more weight to that factor. He already gave it to it. So it wasn't much more for him to even explain.

[00:16:58]>> That argument is correct. So long as there's nothing in the newer articles that is significantly distinct from the regulation, >> right?

[00:17:08]>> And we don't have that analysis in here.

[00:17:11]I think that's part of Mr. Barkalder's point, >> right? But if he says he considered them, that means he read them just because he didn't put in the decision every single article why it was different. He said that this was already similar to the research that was noted.

[00:17:28]So if he said on a whole that the articles contain similar research as the board's regulatory factors, that would address that.

[00:17:39]Hypothetically, if we disagree with you, why would this not be prejuditial?

[00:17:43]>> Excuse me.

[00:17:44]>> Hypothetically, if we disagree with that portion of your argument, why would it not be prejuditial here?

[00:17:50]>> It wouldn't be prejuditial because he gave factor 29 full weight. So, he he considered it, which is what he was required to do. He says he considered it. He addressed that it was already addressed in the board's regulatory factors. He gave full weight to factor 29, which those articles specifically address. And those, as I noted, those articles don't even address the specific offender that we have here. The board's required to use the regulations to consider what risk that offender poses based on that individual's circumstances. And that's what the regulatory factors are there to address, this individualized review. It's not once you hit this certain number of years then you have no more risk. So it's not just because this article says that these specific offenders pose zero risk.

[00:18:43]It doesn't specifically equate to the indiv individualized review of this offender using the board's regulatory factors.

[00:18:53]Um so the hearing examiner considered that evidence along with all the other evidence and um those argument also that substantial evidence was not supported in the decision also was not raised in the superior court and also should be waved. Regardless it is supported by substantial evidence. The hearing examiner looked at all the evidence which regulatory factors applied and how much how much weight to give it. Um it was within his discretion. There was no clear error here.

[00:19:23]Um, and he did end up lowering DO from a three to a two. So, if the board would request that the level two is upheld because there are no errors and it was supported by substantial evidence. And if your honors don't have any further questions, I would rest on the board.

[00:19:39]>> Just briefly, did you make the waiver argument in your brief?

[00:19:42]>> I don't think so.

[00:19:46]That' be a double waiver of both issues there's waiver but I will argue that um it is not there so it is in the record that it was not raised below.

[00:20:00]>> Thank you your honor.

[00:20:00]>> See no further questions. Thank you very thank you both very much for your arguments.

[00:20:04]>> All right the next case is AFCO Electric versus APC Development Group Inc. 2025-0895.

[00:20:24][clears throat] >> All right. Good morning, counselor.

[00:20:29]>> Good morning, your honors.

[00:20:31][clears throat] Alise Q on behalf of Appellant Avco. Um, as a brief actual background, this case involves a dispute between a general contractor and a subcontractor regarding a public construction project in Gloucester, Massachusetts. AFCO submitted a lump sum filed subbid to Gloucester for the work identified in division spec.

[00:20:53]>> We are well aware of the facts of this case. So, let's move to the argument and I have uh some preliminary questions for you. First one is there was no objection here to the verdict slip, correct? at trial?

[00:21:05]>> Not at trial, your honor. Both sides provided proposed verdict slip forms and this was the uh version that the judge used.

[00:21:12]>> Okay. And just out of curiosity, I recognize that the summary judgement decision is obviously not the correctness of it is not before us on appeal, but do you take any issue with the judge's summary of the facts, the agreed upon facts in his decision?

[00:21:27]I uh I recognize, your honor, that the summary judgement decision informed the rest of the case and that if it had come out differently, it would have materially altered how the rest of the case progressed.

[00:21:41]>> Right. I'm not asking about his legal decision. I'm just talking about his background statement of facts seemed to me to be a frankly an accurate picture of the agreed upon facts. I'm just wondering if you agree or dispute that or or don't agree with my statement. Uh, I guess your honor, I would say that the uh to the extent that they do not comply with the briefs of the parties and with the statement of material facts that was submitted on behalf of Abco, I would say that those facts were incorrect, your honor.

[00:22:09]>> Okay. So, I have one more preliminary question, then I promise we'll let you argue and that's uh the defendants frame the issue in the brief as the finding that Avco owned the card access security work is not clearly erroneous. And my question for you is, do you agree that under the test in Miller um the issue before us is at least partly a question of fact?

[00:22:34]>> I do not, your honor. I believe that you are bound by the trial judge stating that this is not within division 26 and that the documents themselves are clear on their face that the division 26 work does not refer or relate to division 28.

[00:22:50]>> So then what does it mean in Miller when The court stated, "The test for resolving disputes of this kind is the degree of obviousness of the omission, error, or discrepancy in the specs. If the discrepancy is subtle, then we do one thing."

[00:23:06]However, where a contractor is presented with an obvious omission, inconsistency, or discrepancy, he should at least ask for clarification.

[00:23:13]Um, and then it goes on to describe what to do if the if there is no ambiguity. I mean, it seems to me that under Miller this is at least partly the test is at least partly a question of fact >> then you have the finding of the trial judge as a finding of fact that division 26 does not refer relate to division 28 your honor >> I understand that but even if it doesn't let's assume that's the case and let's assume that there are other portions of the bidding documents and the contracts that do make the omission obvious to a let's say a knowledgeable subcontractor bidding on this.

[00:24:00]Isn't that an issue of fact for a finder of fact to explore >> for the lower court? Yes, your honor.

[00:24:08]And I believe that the judge did make that finding of fact.

[00:24:14]>> Okay.

[00:24:16]Um, your honor, I would also point to the the statute GL chapter uh 149 section 44F, which requires that the specification for the electrical filed sub bidder be delineated in one specific section. In this case, you have division 26 and you can refer back to the uh documents that were submitted by AVCO where they state in their bid form that they are specifically bidding on division 26. And then you also have the agenda number two where the general contractor submitted an RFI, a request for information to the owner saying and requesting clarification as to who is responsible for the uh division 26 work or I guess which subid is responsible for which area of work. And you have addendum number two which then um states that the electrical subidder is responsible only for division 26 and the general contractors had the benefit of that addendum when they made their bid which is similar to AM uh which was a 2025 decision 2025 decision from the appellet court. It's a rule 23 decision.

[00:25:21]uh but I think it's very informative here that the agenda can modify the bid form and the parties have the ability to then bid with that information. So if you take the case here where you have AVCO who did not have the agenda number two, they had the clear specification the division 26 which was identified in accordance with 44F that it was in the one specific section. And then you have the agenda which clarified it for the general contractor saying that the electrical subidder is responsible for division 26. The general contractor is therefore responsible for division 28.

[00:25:57]they were on notice as to what their scope of work would be when they submitted their bid and that is the difference between AVCO and AM.

[00:26:06]>> I want to go back to your earlier statement. So are you making the argument that as a matter of law if division 26 division 26 specification does not reference division 28 then you win.

[00:26:25]>> Yes, your honor. and we don't consider any other evidence. We don't look to anything else.

[00:26:30]>> I Yes, your honor.

[00:26:32]>> Okay, I understand your argument.

[00:26:35][snorts] >> Um the the purpose of the public bidding laws is twofold. The first is to enable the public contracting authority to obtain the lowest price for the work and the second is to establish an honest and open procedure for competition. And so the the second aim of the statute is generally termed the equal footing principle. [snorts] And the equal footing principle is the idea that every bidder or sub bidder who uh submits a bid to an owner on a public construction project are bidding under the the same parameters. And which is why GL chapter 149 section 44F requires that the sub biders not have to comb or search through each of the documents to determine what their scope of work is, but sets forth one specific section that they are responsible for. In this case, that was division 26.

[00:27:28]When AVCO submitted its bid for the work, it did identify division 26 work on its bid. It did not list any other work. It did not list a subp paragraph e sub bidder um nor identify that anyone was going to provide the security card system access work. And uh as identified in interstate electric where that work was not bid by the electrical submitter, it is then the responsibility of the general contractor. In this case, APC was responsible for performing that work. That work was in the scope of their general contract. And when they performed that work and were paid for that work, they were in essence paid for division 28 work. and AVCO is looking to recover the amounts that APC now holds for the work that they were forced to perform under protest.

[00:28:14]>> Okay.

[00:28:20]Um, did your honors have any additional questions regarding the deal chapter 149 section 44 work?

[00:28:28]>> Just reconciling your position with Miller to get back to that.

[00:28:31]>> Sure. you draw a distinction in Miller that the court found I believe based on testimony that there's customary practice and they you I think it was a plumbing dispute involved plumbing and they used that as part of their finding that the contractor was aware of this customary practice.

[00:28:51]Um correct?

[00:28:52]>> Yes, your honor. And do we not have that here based on the testimony and the judge's verdict slip that that you know your client reviewing the heramman plans reviewing um understanding what was contained in them that the practices that you own that work when you bid on that plan >> when the owner identified that the sub bidder was going to be responsible for the division 26 work especially in addendum number two then they clarified that no you don't have that same need to look through the documents. Division 26 does not refer relate to division 28.

[00:29:26]And the onus is not on the subcontractor to then go in and look through every single document and identify could I be responsible for this? Could I be responsible for that? Could I be responsible for that? That invites lack of clarity in public bidding. It means that Aco could have submitted a bid for different work than a different electrical subidder because they are trying to interpret the contract documents. The purpose of the statute is to avoid that type of confusion.

[00:29:52]>> But is there a lack of clarity or or confusion when AFCO lists the disputed work in a schedule of values for instance?

[00:30:02]>> The schedule of values cannot modify the subcontract that must be entered into uh in accordance with the bid that's set for.

[00:30:08]>> I'm not suggesting it modifies it, but the understanding or the intent of your client at the time is relevant, is it not?

[00:30:16]intent is irrelevant to the scope that the party's into in the subcontract. The subcontract must comply with the bid.

[00:30:24]>> But I think to follow up, the intent is relevant to as to the knowledge and the understanding of your client with respect to what would what an electrical subcontractor would be responsible for.

[00:30:37]Correct?

[00:30:38]>> No, your honor. I would say that under GL chapter 149 section 44F, it specifically states that the electrical work must be identified in one specific section. You've said that I we we got that. Okay. Yeah.

[00:30:49]>> To the extent that the case law refers to whether or not there is additional work that could be identified as electrical work. Again, I think you could look at the distinction between um John Miller and AM where AM they they issued an addendum. They identified work that may or may not be electrical work, which is the trenching uh that the electrical contractor was responsible for and they issued an addendum and drawings that were updated to say you will be responsible for this work and that is not present here. Here you have an addendum that specifically says that the electrical submitters are only responsible for division 26 work.

[00:31:28]>> I think we understand your argument.

[00:31:30]>> Thank you. Actually, I have one one more question and I'm sorry. Um, >> your final argument in this case is that I want to make sure I understand it properly >> that uh well, let me put it this way.

[00:31:45]The court issued a judgment and the judgment included costs. Was the amount of costs identified anywhere? Is it in the record?

[00:31:53]>> No, your honor. uh subsequent to the judgment noting that costs may or could be awarded, there was a motion for those costs which was denied. So no costs were actually awarded in accordance with the judgment.

[00:32:07]>> Okay, then I'm not sure I understand your argument. I know that so a judgment issued it included costs >> and fees I believe. Your honor, >> I thought the original judgment just included uh >> advoc >> costs. But hold on. Um that appendix four, isn't it?

[00:32:30]>> Yeah. The judgment says plaintiffs named above take nothing. The action be dismissed on the merits and the defendants's names above will recover statutory cost.

[00:32:42]you then or your client filed a motion then uh or rather they filed a motion for attorney's fees and costs post judgment and the judge denied that motion. Correct?

[00:32:54]>> Yes, your honor.

[00:32:54]>> So your argument on appeal is that the determination the costs in the judgment are inconsistent with the judge's subsequent determination on the postjudgment motion. Correct?

[00:33:07]>> Yes, your honor.

[00:33:08]>> All right. So, that begs two questions for me. The first one is um as I as I said, what are the amount of costs that were awarded? And you're telling me none have been awarded?

[00:33:19]>> Correct, your honor.

[00:33:20]>> And I'm curious, did you file a motion for clarification or reconsideration with the judge to say, "Hey, these two things are inconsistent. What What is your ruling here?"

[00:33:30]>> We did not, your honor. Um we certainly did not want costs to be awarded to the uh prevailing side. So, the purpose of the appeal was just to ensure that if this were remanded or um there were further proceedings that no attorney's fees be awarded and um no costs be awarded, your honor.

[00:33:48]>> Yeah. Well, again, as I understand it, the judge certainly did not award attorneys.

[00:33:52]>> No, I understand to the extent ambiguity as to whether or not costs are being awarded is your argument.

[00:33:57]>> Yes, your honor.

[00:33:58]>> Okay, I understand.

[00:34:00]>> Um briefly, I understand I'm low on time. Um, as far as the settlement agreement between the parties, the judge did find that AFCO had waved its right to pursue this claim against the general contractor. Um, settlement agreements are subject to general contract interpretation. This sub this settlement agreement is very clear on its face. It is by and between only Avco and Haramman. It is for the benefit only of Avco and Haramman. The releases were limited to the parties Avco and Haramman. It also specifically states that there are to be no third-party beneficiaries as a result of the settlement agreement and AFCO uh retained its right to pursue any additional claims. Um so there just on the face and the actual contractual language set forth in the settlement agreement. There was no waiver and that is an issue of law as a matter of contract interpretation.

[00:34:53]>> Okay, additional questions.

[00:34:56]>> We're all set with our questions. Thank you very much for answering what we already posed to you and we appreciate your argument.

[00:35:03]>> Counselor, >> good morning. Uh, Matthew Mitchell from Orinberger, Delissian Harris on behalf of AFCO, I mean APC and merchants. Um, >> I know this is probably the least important issue on appeal, but could you start by addressing the costs issue?

[00:35:19]>> Um, my understanding is, your honor, is is that the costs that were awarded were statutory costs um for a prevailing party. the the motion was a 2316F motion which was for attorney's fees, cost and expenses. My my understanding is that those are two different things um and that the original statutory costs were awarded. Um >> is there any document in the record reflecting what those costs awarded are?

[00:35:46]>> Nope, there is not.

[00:35:48]>> And some >> so what then? Um, so I requested um the cost be assessed, but I never received any sort of response from the clerk's office in terms of the number >> of what that would be.

[00:36:02]>> What is the amount that you sought?

[00:36:05]>> Um, if if um my memory is correct, it was somewhere between $5 and $600.

[00:36:11]>> Okay.

[00:36:12]>> It was not a big number.

[00:36:15]So our position is that um that AFCO is is ignoring the second half of Miller. Um the the first two arguments that AFCO makes, they cite Miller 18 times. Um and no other case in for the proposition that that Avco did not um own the work under the statute.

[00:36:40]Um I think the facts are pretty overwhelming um for Judge How. I think it was clear that Mr. Villanucci knew um before he even submitted his subbid uh that the card access security system work was included in the scope of work.

[00:36:56]Um his he testified that he had questions about the scope of the work.

[00:37:01]He testified that he read the section 28 card access system specifications before that. He went to the pre-bid meeting with the city of Gloucester knowing that he had questions about the scope of the work, but he couldn't remember if he asked any. Um, the amount of the bid was $191,000.

[00:37:21]The amount of the subcontract was $194,000 and the amount of um that was on his schedule of values was 194,000. So it seems to me that the schedule of values has the section 28 work in it for the card access system and the numbers are the same for for the bid for the subcontract and for the schedule of values. He must have known that that work was contained in there. other >> AFCO AFCO's position which was made quite clear here and is clear in the brief is that if division 26 doesn't reference division 28 and the work in division 28 is out as a matter of law.

[00:38:03]What is your legal authority to support your position that that is incorrect? I know it's Miller. Is there any other case that addresses this issue?

[00:38:14]>> U Miller is is the case um as far as I know. judge and the twopronged analysis.

[00:38:21]One, you know, was it in the specs or was it not? Um, and number two, if there's any confusion that's obvious, then the contractor needs to, um, understand that the work is included in the scope. And in this particular case, um, it looks to me like, um, Mr. Mr. Villanucci knew that all of the applications and certificates for payment that were submitted to APC after the work started listed the security card access work. He was paid for the security card access work according to um the documents that are in the record the the um applications and certificates for payment. And then the last application in certificate for payment was altered um to change um rough access security to rough finish access security to finish and then $41,000 was added to the end of it um for that card access work and >> testy raised the issue in a phone call I believe it was our meeting and that's why he didn't change it earlier. Is it your position it's fair to infer the judge didn't credit that testimony? Um I yeah I my client um didn't testify to that at all.

[00:39:35]>> Oh, not your client.

[00:39:36]>> Right. I I understand. I think Mr. Villanucci had >> Oh, I see. Mr. Fra didn't testify that he had the same conversation.

[00:39:42]>> Correct. Um I I I think one of the things that that Judge How focused on was Mr. Villanucci's credibility. I mean, I think there's a huge credibility issue. um not knowing who put rough access security and finish access security on the applications and certificate for payment, the schedule of values. This is a this is a twoperson operation.

[00:40:04]>> Well, you you say she focused on it, but the parties waved formal findings of fact here, correct?

[00:40:10]>> Yes.

[00:40:11]>> And so the findings that we have are simply those that are in the agreed upon special verdict form.

[00:40:17]>> Yes, your honor, they are. Um so based upon the Miller analysis I think it's clear um that that AFCO knew that the card access system work was contained within the scope of work prior to actually submitting its submit and I think if you look at the the last document or one of the last documents in the record it's the the estimate um from BCM controls um for the card access work and BCM controls makes the the actual box for the card access system work, but they don't do any electrical work whatsoever. So, that electrical work in in the um uh estimate that that AFCO got from VCM indicated that that AFCO was going to be the one to do the electrical work. VCM just supplies the box. AD AFCO installs it. So that notation on the plan um that AFCO refers to u my client testified that BCM was just going to supply the box and that AV AFCO was going to be the one that actually ran the wires through the walls and hooked those boxes up.

[00:41:29]So their own document that they submitted um to Haramman um and the city of Gloucester indicates that they were responsible for the electrical work.

[00:41:40]>> Yeah. Speaking of uh Haramman, the let's call it the extinguishment claim.

[00:41:45]>> Yes.

[00:41:46]>> That's that was the judge's alternative basis to decide in your favor. Correct.

[00:41:50]>> Yes.

[00:41:50]>> I notice in your brief you don't cite any legal authority for the proposition that supports that extinguish extinguishing their claim or that the that AFCO's settlement with Haramman extinguished AVCO's claims against your client. I don't see any case law cited in support of that proposition. Do you have any? I do not judge, but it it seems to me that, you know, AFCO, I mean, Haramman is as the architect is the one responsible for making decisions on change orders. Um, and those determinations are binding. So, AFCO's decision to release Haramman, who drafted all the documents and who made the decision on the change order to deny it, they've released Haramman for all of those things and the claims in the complaint. I I fully understand the argument. It would just be nice to have author legal authority to support it. I don't see it, but I suppose you're arguing in part that it is almost all a question of fact, but I'm not sure that's the case.

[00:42:48]>> Understood.

[00:42:49]>> Okay.

[00:42:52]>> I'm not sure if there are any other questions.

[00:42:54]>> Well, just follow up on that. The authority cited by um Avco relied to to extinguish whether the claim was extinguished relied on a a tort feeer analysis. Yes.

[00:43:06]>> And follow up on on Justice NA's question. Are saying there's no law on this in the contract? I mean, wouldn't it be different um for torers versus there's no dispute they entered in a contract here? So, how could a settlement with a party that wasn't even part of this contract between AFCO and APC extinguish the contract claim?

[00:43:25]Because AFCO has released Herman who was responsible for the plans that were according to AFCO vague. And those those are the allegations in the complaint exactly against against Herman and against APC and merchants. They referenced the same ambiguous plans and specifications. Their claims are based on both of those things. Herman was responsible for that and AVCO released Herman.

[00:43:50]>> Who provides payment to AVCO under the contract?

[00:43:55]>> The city of Gloucester >> goes through APC.

[00:44:00]And and in terms of the quantum marrowit claim, um there was no evidence anywhere in the record that my client got paid.

[00:44:08]So according to the case law that I've cited, there's there's no claim for quantum meowit against my client because they never received any money for that work.

[00:44:20]And also in the breach of contract claim, the the AFCO, Mr. Villanucci, couldn't identify uh a contract. He said, I mean, it wasn't the subcontract that was breached and he could not identify any other contract that was breached and those are the only two claims against my client complaint.

[00:44:38]>> Okay, >> that's all I have.

[00:44:41]>> Right. Any more questions?

[00:44:43]>> Thank you both.

[00:44:43]>> I see no additional questions. I thank the >> Thanks very much >> both of you very much. We'll take the we'll take we'll take the case under advisement.

[00:44:53]Right. We're moving on to the next case which is Julie Powell versus Mary Ellen Kushman and another 2025-0916.

[00:45:21]Give the parties one moment to take a seat and then we'll start.

[00:45:31]>> All right. Thank you. Good morning, counselor.

[00:45:33]>> Good morning. May please the court. Jeff Eugino on behalf of the appellant Julie Pal as as a derivative trustee of the 71 Hillburn Street Condominium Trust. um to the court. We're here today seeking to overturn two orders of the superior court which resulted from a a default judgment um hearing on essentially assessment of damages uh after a default judgment. Um the first is the the court's refusal to bar the appelles from further serving as condominium trustees um for the for this condominium. And and on that it's it's an abuse of discretion standard. And I'm fully prepared to argue that and the reasons why it it it was abuse of discretion. The second is involves a legal error and that's the court's refusal under chapter 183A section 6A to award my client attorney's fees for this action which was brought again derivatively in this 2unit up and down condominium in Roslandale which I can detail further was essentially her only option here as a as a 50/50 two-unit condominium. On that point, I think the court is is is is wrong as a matter of law that that that that section of the condominium act permits and requires um the award of attorney's fees in circumstances such as this where our client has done all she can to seek assessment. Again, this is not a 10-unit condo with a board of five trustees that can vote in assessment. Her only option here after the appelles refused arbitration was take this into superior court. And this is in through this litigation, it is her only option to to assess those fees. Um, >> before you go, I just have a preliminary question.

[00:47:13]>> Sure.

[00:47:14]>> The defendants make representations in their brief and in their I'm going to put this in quotes correction of docketing statement, >> right?

[00:47:22]>> That as of April 21, 2025, they have paid in full the entire amount awarded to Opalant $19,120.60 60 and the amount awarded to the trust with interest $14,828.14.

[00:47:35]Do you dispute that?

[00:47:36]>> I don't dispute that.

[00:47:38]>> You don't dispute that?

[00:47:39]>> I don't.

[00:47:39]>> Okay. So, right. So, >> you also seek I said the judge should have ordered a lean here. Um that only matters here if we agree with you that you should be awarded more fees. Is that correct?

[00:47:54]>> Correct. And again, those fees, your honor, that 19,000 plus was for a rule 37 discovery sanction issue was not under 183A.

[00:48:02]>> These are these are different fees in in their in addition for a different under a different on a different basis. I understand that.

[00:48:08]>> Correct.

[00:48:08]>> So that begs this question for me.

[00:48:11]>> I I think your argument as I understand it is that fees here were not discretionary. They were mandatory.

[00:48:18]>> That's right, your honor.

[00:48:20]>> So you cite two cases for that. Mhm.

[00:48:23]>> Number one, you cite the Drummer Boy Holmes case, >> which my understanding of that case is it involves a different section of the statute. That case involves um >> it didn't involve common area fees. Your honor, you're correct.

[00:48:36]>> That involves 183A section 6B. So, that case is certainly distinguishable. And the other case you cite is Calveo versus Raspalo.

[00:48:46]But as I read that case, it doesn't to me suggest that fees are mandatory, at least here where you're dealing with a twounit condo.

[00:49:00]>> So, so can you help me out?

[00:49:03]>> Again, the issue keval was an issue of the of a unit owner building in a common area. Um, again, that was determined to be against the rules. Um, they were they were awarded fees. Um your honor's question is does Kavalo specifically say that mandatory I don't think it says that they're mandatory it >> what what authority do you have then for the proposition your argument as I understand it is that under general laws chapter 183A section 6 sub a sub 2 >> in this instance fees are mandatory >> if that is a correct statement of your position >> which I need you to confirm then I need you to provide us authority to support that proposition.

[00:49:46]>> I that is my position. Um the first authority is the statute itself. Your honor, it says if any expense is occurred by the organization of unit owners as a result of the the owner's failure to abide by the requirements of the chapter.

[00:49:59]Continuing on, the organization of unit owners may assess that expense exclusively against the unit owner. Um the first authority is the statute itself. So um so as Justice Vo just pointed out it says first of all it says >> organization of unit owners may >> assess attorney's fees.

[00:50:19]>> Yes.

[00:50:21]>> Again and the so I'm going to need you to address that.

[00:50:25]>> And the second part is >> is your client an organization of unit owners? And I think your answer is going to be well they are derivatively but go ahead.

[00:50:34]>> That's exactly the answer. It says it of course it says the unit owners may assess this month. In this action, my client is the organization of unit owners derivatively. It's a derivative action. She followed all the rule 23.1 derivative procedures to act on behalf of the trustees. She is acting fully in that capacity that was that was challenged by the appelles during the court case whether they were whether she had had made the proper steps to to to act derivatively derivatively on the behalf of the trustees. legal authority.

[00:51:04]>> Yes. And so therefore she may assess and >> may >> she she's chosen >> saying that she chose to and therefore it becomes mandatory because they they they exercise their discretion may and then the judge must impose. Is that your argument?

[00:51:19]>> That's what that's what the statute says your honor. This is that the union owners may assess in that >> does that language apply in under again I go back to my question beyond the statute. What case supports that your argument in the context of a two unit condo situation?

[00:51:38]>> You're not.

[00:51:39]>> It seems to me that that under the case law, the judge is authorized to sort of step into the shoes of the unit owners and may award he may step into the shoes of the quote unquote organization of unit owners and say, "Yeah, you're paying fees here."

[00:51:55]>> I think you're not compelled to. you I think you're reading something in the statute which not there and I don't think there should be a distinction for a twounit condominium versus a 10-unit condominium which has a board of three people that can sit and vote and to assess here it goes back to the argument that that my client is acting properly derivatively and she's done everything she she should to qualify her as such on behalf of the trustees and she and the statute says she may in in this capacity she may make that assessment it doesn't say that the superior court may make that assessment, your honor, with all due respect. Um, and it says that, you know, and it the statute continues on that such assessment shall constitute a lean against the unit owners. That's not the superior court's discretion in this case. It is it is the board. with is if we again if we have this this is um counterfactual with a 10 10 unit board with three members. I think if your honor is saying that that's different that these the board of three can vote and assess and that would be proper but my client given her precarious position as a 50/50 owner in a you frankly a nightmare of a situation that that she's held to a higher standard that at that point the the the authority shifts to the superior court because it's 50/50. I I do disagree with that your honor.

[00:53:11]Well, I'm not taking a position. I'm asking questions, right? But I disagree with that idea of the case yet. So, so I'm pushing your argument and part of pushing it is asking you, are there any cases then interpreting this language of 6 A2 >> and saying that that language mandates attorney's fees?

[00:53:28]>> Well, I did the Brow case, which is 57 Mass Appeals Court 1108 in the brief. um there you dealt with a unit owner that had um a noxious photo processing um operation going on. You know the problem with your honor is these these cases and and also the Caval case the court in those those matters upheld the unit the organization and owners assessment is fees. So they >> well the case the Caval case specifically used the language the judge did not abuse his discretion in awarding fees.

[00:54:01]>> Correct. Well, but that again he awarded them at at the at the trial court level and that was I mean that's the abuse of discretion standard of course that that is appealed before the court. I mean the fact that that court didn't say that those fees are mandatory I don't think is is dispositive. I think in in the brow case again that in that case the the trial court awarded fees >> and the court upheld the fees but would the court have said why would use that term abuse of discretion when would the right term have been um no abuse of discretion because the fees are mandatory under the statute >> I I think I could have done either your honor but I think when when that case comes up to the appeals court on a you know on that on that issue before you as I am today it's an abuse of discretion ression standard. So the court appeals court looks at that and say that the court in that case in both of these cases the brow case and the cow case upholding fees did not abuse its discretion. You're right. No, it didn't take that extra step and say because it's it's mandatory under 18 under 183A.

[00:55:03]It didn't it didn't say that. That's correct.

[00:55:05]>> It's it's it's subsumed, so to speak.

[00:55:08]It's assumed. that was >> I mean it's baked into the decision in a sense that it wasn't I mean it it again they were they were affirming an award of fees in that case and and they said it was no not an abuse of discretion. Um >> so again I'm so to be clear >> there were myriad reasons for the judge to award fees here >> indeed chose not to. So again, I'm asking you for your best authority that it was an error as a matter of law not to award fees here, which is contingent on there being some authority that fees are mandatory in this context.

[00:55:44]And I understand you're citing the statute and I will reread that. We will all reread it.

[00:55:48]>> But your best authority apart from that you're saying is the brow case which is not precedent but we'll look at it in Calveo. Is that correct?

[00:55:57]>> That's correct. You also have the trustees of the watermill place. That was a mass appeals division um case as well. Um the issue >> that case did that case say that fees are mandatory in this situation?

[00:56:08]>> It's it said trial court and I think I'm quoting it trial court was required to award attorney's fees for the trustees under 183A 6A too little eyes.

[00:56:19]>> Um >> again apt division case but but that's you know I just think that this issue doesn't come up. your honor that much is there's only these handful I can count them on one hand cases that have come up to the court um you know if you look at the the overall purpose of the condominium act the strength of of of section six all the sections of section six with regards to common area fees um with regards to to the violation of rules as in this case I think you have to read it as as a as a strong statute requiring fees otherwise these condominium associations would would essentially become unmanageable in a situation like exactly that we have here. Um if I can can I move just back to the removal of of the trustee um >> Sure.

[00:57:06]>> issue the removal of of the appellies as trustee. You know here again it it's this is an abuse of discretion standard.

[00:57:13]Um it has to fall the judge's decision has to fall outside the range of reasonable alternatives. Um, essentially, um, Judge Ratudi here decided that, you know, he awarded the fees for the the discovery violations.

[00:57:28]He awarded the 12,000 for the for the conversion. Um, and his is it his decision essentially said you have to have unanimous agreement going forward.

[00:57:38]Um, given the history here, the the documented history in the record of success of owners, again, it in terms of the affidavit, it we we never were able to take it to trial or summary judgement on this case again because it went to a default judgment because the appelles never got an attorney after they dismissed their their first attorney.

[00:57:58]Um, given the history of the ownership of uh 4-month ownership and 8-month ownership, our our client immediately immediately um wasn't going to sit there and in in seller unit. She should be she should be credited for for standing up for standing up for >> understood. But what does that have to do with the judge's judge's abuse of discretion or not abusive discretion in um denying the request from your client that um neither uh Miss Kushman or Mr. um Gonzalez uh Gonaga I'll we'll get the pronunciation of your name correctly later um uh could not serve as as trustees.

[00:58:41]>> You have a a a well doumented uncontested history of malfeasants with regards to finances. You have conversion of over $12,000. You have of that was spending wildly over $6,000 on Amazon charges. You have refusal to provide any um bank bank statements, bank access to at least four or five consecutive owners, which is all detailed in the record. You have severe financial mismanagement.

[00:59:06]>> You think the judge was considering the fact that it's it's a two-unit condominium and that's why um uh uh that request was denied? I don't I don't know that.

[00:59:17]>> In other words, I take your point that the judge did not explain why he made that decision in the uh >> understood. And I I don't know what he was thinking in that respect. And again, I it kind of goes back to that point that just because it's a 50/50 two-unit condominium. I don't think that the law should apply differently than if it was a 10 or 20 or 100 unit condominium. You have a trustee here which is enga which trustees um again you have um Miss Kushman who appointed herself as is my as my client units uh trustee for for a number of years. You have you have um this establishment of using these six security cameras to to follow everyone's move through multiple owners. Yeah. Hey, it's a it's unfortunately it's it's a sorted history um of of what went on and importantly the appelles show no indication that they're going to change their ways so to speak. They they they defied the court here in terms of >> an argument for you. It's your argument seems to me to be based on the judge's findings of fact here, the defendant's conduct was so egregious that it would be outside the range of reasonable alternatives not to impose the remedy that you're seeking here. Is that an accurate summary of your argument?

[01:00:34]>> That's a it's an accurate summary, your honor. I think here you you you couldn't you couldn't think up anymore any more ways in which a condominium trustee could cause havoc to the trustee. And I think it's important that the judge didn't offer any reasons for his finding. He simply said it was inappropriate on on both things we're asking for. I think that I think that itself calls for >> Your time is up. I'm just going to see if if there's any other questions from the panel. Anything else from the panel?

[01:00:57]>> Um all right. We we understand your argument. Thank you very much.

[01:00:59]>> Thank you to the court.

[01:01:00]>> Okay. I understand the epileles are splitting their time. We'll hear from Miss Kushman first for five minutes.

[01:01:16]Good morning, your honors. Mary Ellen Kushman, Appelli. And if it pleases this court, I would like to read just a very brief statement and then yield the rest of the time to Appel Gonzalez.

[01:01:29]>> You will have you have five minutes and then you'll have 10.

[01:01:32]>> Very good. Appelles respectfully request that this court affirm the April 17th judgment from the lower court. appellent identifies no clear error of law or abuse of discretion and raises no valid question of pure law warranting denovo review. Please see our brief at pages uh 2 through three. Instead, appelant asked this court to second guessess the discretionary determinations made by the trial judge who presided over the case.

[01:02:00]Your honors, as you've noted already, appelles have paid the award in full on May 25th. In May 25th, before the appellant filed this appeal, please see our brief at page seven and nine. As you already have mentioned, this appeal should be judged under the discretionary standard, please. Affording the lower court's ruling great difference on appeal. As we have argued, we believe that the attorney fees were properly awarded under rule 37. The trial court applied court rule 37, superior court rule 37 at appellent's own request, SR17.

[01:02:40]That rule expressly authorizes an award of attorney fees, and the trial judge was best positioned to evaluate the facts governing the law. appellants reliance on general law 183A subsection 6 is misplaced. That statute addresses unpaid condominium expenses and appelles have always been current on all such obligations.

[01:03:04]And in any event, the fee award would have been the same regardless of the statute used to calculate it as we argue in our brief on page 3 to four. And that is because the appellant offers no base for reversal based on error or abuse of discretion. The court correctly applied the loadar method to reach that legally and mathematically sound result. The lower court properly applied, excuse me, the lower court properly reduced appellants fee claims due to their flagrant billing deficiencies, including their failure to establish fair market rates, their emission of billing rates from multiple attorneys and the repeated use of black building billing and that we argue in SRRA 18 through 22. The lower court carefully applied that method of loadar and reached a conclusion that was not only legally sound, your honors, but was mathematically correct.

[01:03:59]>> Appellent, are you still referring to the $19,000 that was >> Yes, ma'am.

[01:04:04]>> Yes, your honor.

[01:04:05]>> All right. But you don't dispute that.

[01:04:07]>> No, your honor, we're not disputing it and we have already paid that, >> right? Okay.

[01:04:12]Appellance Council asked this court to overturn that proper fee award, not because the trial court error, but to evade the consequences of their own blatant billing misconduct.

[01:04:25]We also argue that the denial of trustee disqualification was within the court's discretion.

[01:04:32]Permanent disqualification of trustees is, as you know, an extraordinary remedy. The court noted that appellant was not quote entitled to all of the relief she seeks. Sr23.

[01:04:45]The order targeted equitable relief including disabling the security cameras, holding annual meetings, and documenting unanimous decisionmaking when prior to that we had been run informally uh with other uh condominium association members. All of these orders we have complied with, your honor, and all have put the appellant in the position she would have been if no breach of fiduciary duty had been committed.

[01:05:13]>> Right. But does not ignore the fact that the judge did find that the conduct on your part was egregious.

[01:05:19]>> Yes, your honor.

[01:05:22]And we have sought to address that, your honor.

[01:05:24]>> Yeah. Okay. Since then, in short, your honor, uh we find no reversible error or abuse of discussion, and we respectfully request that the judgment be affirmed in its entirety.

[01:05:38]>> Thank you very much.

[01:05:40]>> Okay, one moment. Any questions for >> Nothing. Thank you.

[01:05:43]>> No questions. Thank you.

[01:05:44]>> Questions?

[01:05:45]>> Oh, sorry.

[01:05:48]>> Was there no >> there were no questions. You may take a seat.

[01:05:52]Good morning, Josh. It says Felix Gonzalez. Appil.

[01:05:56]>> Could you pronounce your last name for me?

[01:05:58]>> Gonzalez.

[01:05:59]>> Just Gonzalez. Okay. Not not with the dash. The >> Gonzalez. Go a.

[01:06:03]>> Okay. We'll go with that. Thank you.

[01:06:05]>> Okay.

[01:06:05]>> Please proceed.

[01:06:07]>> I I would answer any questions that the justices might have. If there are no further questions, then >> All right. Well, I'll I'll >> Yes.

[01:06:16]>> One moment. No, your no your brief makes your argument in full and we've read it and we understand it.

[01:06:23]>> Thank you.

[01:06:24]>> And I see there's no questions on either side. I don't have any questions either.

[01:06:27]Um, thank you both very much for appearing today.

[01:06:29]>> Thank you.

[01:06:29]>> All right. We'll take the case under advisement.

[01:06:31]>> Thank you.

[01:06:39]Keep going.

[01:06:41]Keep going.

[01:06:43]Our next case is Xi Ling Wang versus City of Chelsea 2025-10005.

[01:06:53][sighs] We're ready.

[01:07:15]>> Yes, sir.

[01:07:15]>> Good morning.

[01:07:16]>> Good morning, your honor. May I please court John Matus for Mr. Wang? Um, your honors. Um, first I'd just like to say that I believe that the heart of this issue is just one real issue is whether the content of the pres presentment order uh presentment letter uh fulfilled um the statutory obligations and the case law obligations. And it's our position that it does. um unless the court would like me to there was a couple arguments in the opponent's brief that I just like to briefly mention.

[01:07:41]First, they claim that actual our actual notice argument um is waved because it wasn't raised below. Uh I have three responses to that. Number one, this court reviews denovo can hear any arguments it wants. Um number two, the one of the of the four cases that sites for that, three are not summary judgment. The fourth case of sites, M&H Gordon, um states that um it's not enough for the judicial decision not to have raised it. It must not be raised anywhere in the papers below. It's our position that it was raised in the complaint. Uh paragraphs 3,1 1914 5 uh and uh 62. Sorry, they're out of order.

[01:08:16]Um and >> what are those paragraphs again?

[01:08:18]>> I'll I'll read them in numerical order.

[01:08:20]Three, five, 14, 19, and 62 where Mr. Wang uh you know states that he went to the offices had discussions with people at the offices and of course that was answered at the uh presuming paragraphs in the opposing uh in the answer. So these were raised below and I believe M&H Gordon which uh was cited by them um states that if it's raised in the initial papers it is raised below. So we believe actual notice is here. But moving on to the presentment letter. the presentment letter um it was timely um it was raised it was brought to the right uh person's uh attention because they admit that in their brief uh page 24 so the only question is whether the content is created now presentment is strict but except on content there's two requirements of it first it must identify the legal basis of the claims and secondly that it's not so obscure that the public officials wouldn't know what they were t what was being told would be baffled or misled as to what the claims propitute is Y >> now their argument is well it didn't give the exact date sorry this is the lower court said well it didn't say the exact date of the incident >> or give the li or give the theory of liability >> theory the theory of liability but I believe that's misread >> or or mention the negligence of maintaining the sewer pipes >> I I I I think that's misreading Martin because Martin says what is the legal basis of the claim not is what is the theory of recovery or the theory of legal liability >> the letter is very thorough in stating this is about damages to my property caused by the city and then in trying to fix it, the city is also causing damage because it's not allowing me to fix it.

[01:09:53]It names specific inspectors by name that he's had conversations with. Um it details, you know, that the subfloor itself was one of the damages that he's trying to recover for.

[01:10:04]>> Can I can I ask you a question? Of course.

[01:10:06]>> Uh let's say hypothetically I'm sitting in the law department. I read this letter uh and again hypothetically I'm saying to myself, what the heck happened here? pick up the phone and call, find out what happened. I'm is the law department obligated to do that or is it have to already be in the letter exactly what happened so that the law department already knows >> does not have to be exactly that is Martin your honor doesn't have to be again all he all it has to do is correctly >> it doesn't require an investigation though correct >> it should it does require them to at least know what you know to be advised so they can conduct a proper investigation so that they can offer settlement I believe I cite to the case law of Rodriguez and I just want to get the case correct where they that the actual purpose of this um sorry that's the appeals court uh that is my incorrect one but um >> Rodriguez was an appeals court case that was taken on further appellet review by the SJC >> right and um one of the purposes of the the major purpose of this is that so they can investigate and then offer settlement or arbitration if they feel like the charges are or the the base of liability would give way to charges again it would be a little bit misreading of Martin to say well you have to give your exact counts and the exact statute you're going to sue under because as you all know you can move to amend your complaint as a matter of rights so you can change your theories later would that require a different presentment letter letter that is not what Martin or the case law suggests it's can you state the legal basis the legal basis is the damages incurred on this exact property as a result of the city as these inspector's actions espec specifically to the subfloor and the structural arguments that should that is enough to put the um the city on notice of what the situation is. You you bring up the last two years of records and say what happened at this property involving us. He says he's had conversations with these inspectors. Let's call these inspectors in. Let's see what we know and let's see if this is actually a something we want to offer settlement on. And so that is the purpose of Martin. Um to require as the lower court did the exact date of the incident um I think misreads Martin. Certainly, it would be helpful and I'm not saying this was a model of particularity as Martin might say.

[01:12:18]>> I didn't interpret the decision to require the exact date. I mean, there was no date in the letter. Was there any date >> in in the in the letter? No, there was not. Um, there was no date given.

[01:12:28]However, first of all, we know that the presentment letter not offered within two years is obviously out of is past due. And so, the inspector or the person receiving the letter can say, okay, it has to be at least two years beforehand.

[01:12:40]But secondly, unless unless there's this is a problem from >> supposed to infer it's timely and filed when they receive it.

[01:12:46]>> Well, no, they don't have to they they can they just have to investigate was there an incident within the last 2 years that these inspectors know about on this property and then we can argue if not we can say well it's not timely because whatever you're arguing about didn't happen or they can say well we don't know what you're talking about here so therefore. So, it's kind of a they kind of both blend together on that, your honor. But it's certainly when you're giving the exact names of the inspectors who are involved and you're talking about the specific damage to the subfloor and the structural integrity, this is not some mystery because he's saying in the letter, um, I was, you know, required to remove the subfloor by the city. So, you guys told me to do this. So, therefore, you know, check your work orders on that. That's going to tell you the dates. And if you want to argue that it's not timely, we can argue that later. But there's no issue of that here.

[01:13:31]And um I believe just one more note I would say unless there's any other questions on the lulling exception.

[01:13:38]>> Actually before you get to Lulling. So two questions for you.

[01:13:42]>> The first one so what is your best authority that supports your argument?

[01:13:47]>> You can cite more than one case if you want but what do you think are the cases that that win the matter for you win the appeal for you? Well, first I would say the Martin Martin in general. Um because uh Martin makes sure that you know the the requirement is that it's not so obscure. It's a very broad broad statement of law. Um it gives a lot of difference to a person sending that letter. And um yes, I'm going to say Martin, your honor.

[01:14:13]>> So here's my other question.

[01:14:16]I'm I'm trying to reconcile all of the case law that considers sort of both prongs. the particularity prong or the or the detail prong, the strictness prong, let's call it, and the doesn't have to be perfect strong.

[01:14:31]So, are you aware of any cases in which a presentment letter was deemed to be sufficient where one, it was missing any reference to general law chapter 258?

[01:14:46]Two, it was missing the date of the incident. Three, it was missing any reference whatsoever to the cause of action here, negligence. And four, it was missing a description of the what I would call the basis of liability, which here is the city's failure to maintain the sewer pipes. Is there any case, any published authority in Massachusetts, where all four of those have been missing and either our court or the Supreme Judicial Court has said, you know what, still enough here to get them over the bar. You're talking about a published case, your honor. I honestly I can I cannot say that I can name one and I and I u but the purpose of Martin is not to set out those prongs. Exactly.

[01:15:33]The purpose is to allow flexibility in this area. Finally, on the lulling exception, um I realize that some of the language in the lulling uh case law is I don't want to say muddled, but to me it seems a little confusing. I know opposing council has cited the fact in its brief that under the lulling exception it must be an affirmative uh take um I want to get the language correctly and that is accurate language I'm not saying that however in um my brief I cite to balante which all which which says that unless uh I want to get the quote correct here but under balante it it's a much it seems like a much looser standard of language and I think there's a reconciliation perhaps a clarification that required under Balante for the lulling exception because I do believe the way my the way that case law that my brother cites it could be read his way but the way Balante read seems like it it could be read my way and so I believe there is some confusion on that >> there are no no other questions I'll rest on my brief thank you >> one moment I'll just check with the panel >> okay thank you very much >> thank you thank Good morning, your honors.

[01:16:48]>> Morning.

[01:16:49]>> Uh Daniel Script from Pierce Davis Paritano having the pleasure of representing the city of Chelsea.

[01:16:54]And to frame the issue concisely, it starts with Judge Budro's decision on our motion to dismiss. and he simply said that all of the portion of count one which was just negligence is dismissed except for um any claims based on the properly the proper maintenance of the sewer pipes. So that's the only issue in play. Now, my brother already talked about the baffling of the educated public officials that is discussed in Gilmore back in the mid 90s when it comes to the precision of the presentment letter. And we have UVA, we have Yukon, we have Cornell on on the on the panel, all educated public officials. And I rhetorically ask you that when you read this presentment letter, where can you glean a claim for negligence of sewer pipes in in in Chelsea? I will respectfully suggest you can't because it's very simple. The word negligence never appears. The word mean >> I'm gonna ask you the same question that I asked your brother. I'm sitting in in the in the sea department uh at the law department that this letter comes across my desk.

[01:17:57]>> How often does it happen that there are two inspectors that are out that are taking care of a situation that are organizing work to be done and there's a complaint about it? I have no idea that this occurred because of a maintenance of a sewer issue. How could I not know anything about that by that letter?

[01:18:14]>> Could you repeat that, your honor, one more time? Sorry.

[01:18:16]>> Uh, again, we'll just um um um to set this to set the um the the um context.

[01:18:23]If I'm sitting in the city law department working for the city of Chelsea, this letter comes across my desk. It indicates to me that two inspectors have gone to an address. I know the address that they have discussed with the owner extensive damages that they have suggested what should be done with respect to those damages. I have no idea that this has to do with the sewer main not being maintained in in Chelsea. It's not the city of Boston. It's the city of Chelsea. How could that not be enough for me to know what's going on?

[01:18:53]>> Because it's not precise enough, your honor.

[01:18:55]>> How precise does it have to be? And how technical are you being here?

[01:18:58]>> Well, it's got to at least mention negligence. It's got to at least mention the cause of action. It's got to at least mention the date. The experts, my brother, >> wait, wait, wait.

[01:19:06]Can you not infer that there's an allegation of negligence based on this letter?

[01:19:12]>> No, you can't, your honor. The letter is based on 93A, which is of course unfair and deceptive practices, which is a wholly different statutory scheme than simple negligence. And of course, negligence in back in the 70s and 60s was subject to governmental or sovereign immunity. And it wasn't until the mid70s and the 80s that the legislature pursuant to the SJC's prompting passed the test morse sorry the mass to claims act which requires precision with regard to the presentment letter. So it puts within the four corners of that document puts the municipal municipality on notice of what actually is being alleged that is missing here. I I'm >> I'm going to say for myself there's no question the letter could have been more explicit. All right. We'll just just say that hypothetically. I'm not going to say to the panel we'll decide that. Uh but that's not the question here, right?

[01:20:00]I mean, we wouldn't be here if the if if the letter mentioned those four four uh facts actually that Justice Nimon has had has articulated earlier.

[01:20:11]But the question still remains under Martin whether or not there's enough in there and that's why I'm not hearing you address directly. Why isn't it enough to understand that there's a negligence claim? Because the letter, first of all, the letter refers to communications with the the city manager and the inspection offices uh the department with regard to the repair of damages already occurred.

[01:20:33]>> And how and how those damages occur just >> well if it it it wasn't mentioned in the letter, your honor. So therefore, how >> Let's let me ask you about that in the letter just to add to Justice Vuno's question. Record appendix page 13 in the letter. What was meant by this language in the letter?

[01:20:54]Mcer and Ambrosino among others unfairly and deceptively failed to adequately respond in the following ways. Here's the language.

[01:21:02]Failing to adequately respond to fixing the property that caused damages by municipal construction that damaged the property at 92 Park Street in Chelsea and refusing discussion to resolve the problem. What is meant by that language?

[01:21:17]Not negligence, your honor. I don't know. It's not my letter. And when the plaintiff was deposed, he tried to pawn off the municipal construction as some sort of road construction.

[01:21:26]>> Failed to adequately respond to fixing the property that caused damages by municipal construction that damaged the property at 92 Park Street in Chelsea.

[01:21:35]>> But it I I understand your order. It does not it doesn't explain how that damage was caused. This >> I think a first year law student might think that could be negligence.

[01:21:44]>> But this but but it doesn't mention negligence. What do you mean?

[01:21:47]>> But what else could it actually be? Give me an idea of what else could I mean because in other words, it doesn't specifically mention negligence. That's correct.

[01:21:55]>> What what other theories would immediately come to mind?

[01:21:58]>> Negligent inspection inspection, your honor, in in terms of inspecting another person's property, which was part of the motion to dismiss in this action because half of the negligence claim, >> so not negligence because of the sewer pipes, but perhaps negligence due to inspection.

[01:22:11]>> Exactly. And that was dismissed in this case. And your honor, if I may point something to Justice Neon actually was on the senior panel.

[01:22:20]I'm sorry for my first time in front of you. You did so much better than most people and you referenced my college. So you're already, you know, a good favor today.

[01:22:27]>> I couldn't remember what your law school as a BC grant. I can't possibly compliment any sort of degree of education from BEu. But with all due respect, I had to go with Cornell. But you were the senior member of a panel in 2021 that had very similar fact pattern, Justice Vano. In that particular case, which is >> sorry, >> Vuno.

[01:22:45]>> Yeah.

[01:22:46]>> Simmons versus MMA, the Mass the Mass Maritime Academy. In that case, your honor, Joseph Nim was was was faced with a letter just like this one here that mentioned damages to a young lady who was hurt as she was getting on or off a vessel. I forgot which one it was, but the question would be the same.

[01:23:03]Well, of course, she got hurt. So, isn't it by inference obviously part of the negligence on MMA? Well, in that particular case, Judge Nyman's panel said n said, "No, the letter is insufficient." And even though that panel called the result harsh, it was still the proper decision under the Mass Claims Act. That case was affirmed. The dismissal was affirmed. That case was eventually dismissed on the grounds of the letter. Even though mentioning damages that you can infer was caused by negligence, it didn't contain the precision required by Gilmore, which of course is not part of the statute, but is part of the jurist prudence that came in the wake of the master claims act. So yes, your honor, Justice Wano, uh there was uh mentions of damages uh with with my first comment to that is that it was a damages allegedly caused by the inspection had nothing to do with negligence. In reality, your honor is this is nothing more than my my brother's predecessor, not my brother, my brother's predecessor writing a letter under 93A that he assumed would carry the weight in terms of 93A. Didn't realize the particularity particularities that are required when suing a public employer under mass and master claims act. And when the mistake was found, he tried to back up that letter into a master claims act presentment letter. Insufficient. It's not appropriate in this context.

[01:24:26]Can I go on?

[01:24:28]Reaching back to uh Simmons versus uh the Mass Maritime Academy. And for your edification, your honors, the site to that, it is a rule 23 case. The site is forgive me, Aron. I'm getting over >> Is it in your brief?

[01:24:42]>> Sorry, >> it's not.

[01:24:42]>> It's It's not in your brief.

[01:24:44]>> No, it wasn't because when I when I studied your decisions, I came across this one. What's the site? The site is 99 Mass App Court 1123 2021.

[01:24:58]Um, uh, Mass Maritime Academy was defendant Simmons, plaintiff Saxs Lamir Ozu, and you were the senior, uh, panelist. Um, with regard to my brother's argument regarding actual notice, reflecting back on that decision, your honor, your panel did not even consider an argument regarding lulling because it wasn't brought below.

[01:25:20]I simply asked you that >> it's I understand it's not precedent though.

[01:25:23]>> It's not pre sorry >> it's not precedent. I said >> it is not precedent but it's persuasive your honor and it does stand for a standard rule of law that we cite in our brief in that particular regard in terms of lulling. Finally, your honor, I have six minutes left. I don't think only half that time. There does require an affirmative act on the part of the defendant or the defense council. Uh there was no affirmative act in this case. All we did was file our motion dismissed in a timely manner. It was oddly enough delayed over a year through no part of the defendant. There were some issues regarding plaintiff's counsel and a replacement of plaintiff's counsel and things of that nature. So it took over a year, believe it or not, to have that motion heard. In that time, the time had run for the motion to for the presentment to be cured. So there was nothing to do because when our motion dismiss was served and filed, it wasn't ripe yet. The argument was unripe. It would have been appropriate to make that argument at that particular point. So eventually we filed our we filed our answer to the one remaining part of the negligence claim of asserting for the first time that there was a lack of proper presentment.

[01:26:29]I asked this I asked this panel what else was this defense council supposed to do? We would not be in an appropriate position to literally call out the plaintist council on the telephone. Oh, by the way, you your your presentment is deficient. You better cure. That would be no duty to our particular client. In fact, I would think that'd be some form of malpractice if actually did that. So, there is no particular lowling here.

[01:26:51]There's no lowling at all. The letter was deficient according to Gilmore. Um, and um, the actual notice is not on the table for this panel to consider. And if it was, it wouldn't apply anyway. I can go into that, but it's only if you'd like me to.

[01:27:07]>> All set. That's it.

[01:27:10]>> The panel is all set. We understand your positions. Uh, thank you for your arguments today. And we'll take the case under advisement. Okay. The court's going to stand in recess. When we return, we're going to have the the panel will be uh composed of myself, Justice Nyman, and Justice Henry. Thank you.

[01:27:35]there.

[01:27:38]Sorry. Thanks.