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Mediation and arbitration are often less expensive and less stressful alternatives to litigation in family law matters.  The parties must agree to submit to alternative dispute resolution, however.  When agreeing to one of these alternatives, the parties should understand what the agreement entails and whether the decision is subject to judicial review.

gavelThe Massachusetts Appeals Court recently reviewed a challenge to a judgment based on an arbitrator’s findings and award in Gravlin v. Gravlin.

The husband appealed Probate and Family Court judgments after the court confirmed an arbitration award for the wife, arguing it was an improper delegation of the judge’s authority to submit the complaints to arbitration and an abuse of discretion to enter judgment based on the arbitration award.

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Often at issue in drug cases is the validity of searches and seizures of evidence.  Even when the police obtain a search warrant, a defendant may challenge a search that is not authorized by the warrant. In Commonwealth v. Sanchez, the Massachusetts Appeals Court considered whether the search of an apartment authorized by a warrant extended to a shed in the back yard of the apartment.

The court considered the findings made by the motion judge in determining that the shed was within the curtilage of the defendant’s apartment and therefore could properly be included within the search.  The defendant, who was convicted of trafficking in 100 file0001914433073grams or more of crack cocaine, argued that the search warrant that authorized a search of his third-floor apartment and any persons present in it did not extend to the shed in the back yard.  The apartment building contained three apartments.  When the defendant approached as a passenger in the vehicle, the police stopped him and obtained a set of keys from him.

The police used one of the keys to open the apartment.  Minutes later, an officer went out to search the fenced back yard.  The officer saw the shed and unlocked the padlock on its door with one of the keys.  He ultimately found and seized cocaine that had been hidden above one of the ceiling panels in the shed.  The police also seized receipts from the apartment, showing the defendant rented the shed from the building’s owners.

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Both state and federal wage and hour laws protect employees’ rights to receive payment of the wages due to them in a timely manner.  In some cases, the court must determine which laws, including the laws of which states, apply to a plaintiff’s claims.  In file000126221232Ossenbruggen v. Cowan Systems, LLC, the District Court of Massachusetts had to consider whether Maryland would apply its own wage laws or Massachusetts’ Wage Act in determining if it was appropriate to transfer the case in accordance with a forum selection clause in the contracts between the parties.

The plaintiffs filed suit to recover wages they alleged were due to them and similarly situated workers who had also worked as drivers for the defendants.  The plaintiffs alleged, in part, that the defendants violated the Massachusetts Wage Act.

The plaintiffs originally filed the case in Suffolk Superior Court, but it was removed to the District of Massachusetts.  The plaintiffs then moved to have the case transferred to the Western Division of the District of Massachusetts.  The defendants also sought to have the case transferred, but to the Baltimore Division of the District of Maryland, based on a forum selection clause in the contract.

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Massachusetts General Laws c. 183A, § 6(c) provides that a lien for the unpaid common expenses of a condominium is prior to all other liens on the unit except those recorded before the master deed was recorded, a first mortgage on the unit recorded before the assessment became delinquent, and liens for property taxes and other municipal assessments.  The statute further provides that the lien for common expenses does take priority over a first mortgage to the extent of the common expenses assessments that would have become due absent acceleration in the six months immediately preceding the filing of the action to enforce the lien, as well as costs and reasonable attorneys’ fees to enforce that lien.

file00022066144The statute does not state whether an organization of unit owners can file multiple actions for priority liens after the first six-month period of unpaid common expenses if the unit owner continues not to pay.  The Massachusetts Supreme Judicial Court recently considered this issue in Drummer Boy Homes Association, Inc. v. Britton.  The parties have been involved in lengthy litigation involving parking rights at the condominium complex for many years, but this case addressed only the unpaid common expenses.

The defendants began withholding monthly common expenses due to a dispute regarding parking and fines in 2004.  In August 2007, the association filed suit, seeking unpaid common expenses and the enforcement of a priority lien.  The defendants continued withholding payments, and the association filed a second claim for the unpaid expenses that accrued after the first case was filed, as well as another priority lien.  The association filed yet a third case in October 2008.  The trial court granted the association’s motion to consolidate all three cases.

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The Uniform Commercial Code (“U.C.C.”) is a uniform act that applies to certain commercial agreements, including the sale of goods.  The U.C.C. addresses issues such as non-conforming goods, acceptance of the goods, and revocation of that acceptance.  The file0002079692698Massachusetts Appeals Court recently addressed the issue of revocation in the case of New England Precision Grinding, Inc. vs. Simply Surgical, LLC.

The plaintiff entered into a contract to supply its customer with medical device parts.  The plaintiff then contracted with the defendant seller to get the parts from an Indian manufacturer, the defendant manufacturer.

The manufacturer would certify that the parts conformed to the plaintiff’s specifications.  Upon receipt, the plaintiff would inspect the parts.  If the plaintiff approved them, it would then certify they conformed to its customer’s specifications and ship them on to the customer.  The customer then inspected the parts.

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Eligible employees may take unpaid leave for up to twelve weeks during a twelve-month period for “a serious health condition” that prevents the employee from performing her job functions, pursuant to the Family and Medical Leave Act (“FMLA”). 29 U.S.C. § 2612.  file000921513512The employee generally must be returned to the same or an equivalent position.  29 U.S.C. § 2614.  The law also protects the employee from retaliation or discrimination.

The Supreme Judicial Court recently decided a case involving allegations of FMLA retaliation in Esler v. Sylvia-Reardon.  The plaintiff had worked as a hemodialysis nurse at the hospital for several years.  In November of 2008, the plaintiff requested FMLA leave for symptoms partly related to a blood disorder. The hospital approved the request for leave from November 14 through December 15, 2008.  The plaintiff’s symptoms included fatigue and anxiety, and her doctor had recommended she engage in light exercise and pleasurable activities.  She visited friends in New York during her leave and injured her wrist ice skating.  Her supervisor called while she was in New York, stating that the FMLA paperwork had not been received and the plaintiff’s job was in jeopardy.  The plaintiff told her supervisor that she was in New York, and the supervisor questioned her being on vacation while she was on FMLA leave.  When the plaintiff told her supervisor about her injury, the supervisor said the plaintiff needed to come back the following week or she could not hold her job.

After learning she needed surgery for her injury, the plaintiff submitted another request for FMLA leave.  The hospital approved the request for leave from December 8, 2008, through February 6, 2009, a total of twelve weeks from the initial leave.

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Property developers sometimes enter into agreements for the benefit of the development.  Both the Uniform Common Interest Ownership Act (UCIOA) and the Restatement (Third) of Property:  Servitudes allow the condominium board to terminate certain agreements made by the developer, but Massachusetts has not adopted either.  Therefore, in the recent case of Sewall-Marshal Condominium Association v. 131 Sewall Avenue Condominium Association, the appeals court considered a contract entered into by the developer in light of the Massachusetts Condominium Act.

046In this case, one condominium association sued a neighboring condominium association for a declaratory judgment regarding the parties’ rights under a parking agreement.  The parties shared common developers.  A contract was executed that provided for the sharing of parking spaces between the parties.  The agreement allowed the plaintiff, which had fewer units, 20% of the parking spaces and the defendants 80%.  The agreement continued for 28 years before the defendant notified the plaintiff it would not continue to follow the agreement.  The plaintiff filed suit.

The defendant argued that the contract was unenforceable under the Condominium Act.  The defendant further argued that the contract was unconscionable.  The Land Court judge entered a declaratory judgment for the plaintiff, and an appeal followed.

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Child support in Massachusetts is determined using the Massachusetts Child Support Guidelines.  There is a rebuttable presumption that the guidelines apply to all child support cases, whether they are establishing a new order or modifying an order that is already in place.  Massachusetts law requires that child support orders be modified if there is an inconsistency between a current child support order file000950486984and the amount that would result from the application of the guidelines.  G.L. c. 208, § 28.  The Massachusetts Appeals Court recently considered whether a mother’s waiver of interest in income from vested restricted stock units prevented that income from being included in the child support calculation in Hoegan v. Hoegan.

The divorce judgment had incorporated the parents’ separation agreement, under which the father was to pay $1,020 in child support every other week.  Both parties had agreed this amount was greater than the amount calculated under the guidelines in effect at the time.  The agreement required the parents to revisit the amount of child support in April of each year.  An exhibit to the agreement, titled “Pension/Retirement Funds, Etc.,” stated that the mother acknowledged her awareness of the father’s participation in a stock plan through his employer and that she waived all rights to those accounts.

The father subsequently filed for a modification to the parenting schedule and to extend the child support review to three years.  In a counterclaim, the mother sought to have the child support recalculated to include “all” of the father’s income.  The parenting schedule issue was resolved, leaving only the child support and tax exemption issues for trial.

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Pursuant to the Sixth and Fourteenth Amendments to the U.S. Constitution and Article 12 of the Massachusetts Declaration of Rights, a criminal defendant has the right to counsel at “critical stages” of the prosecution.  The Massachusetts Supreme Judicial Court has held that a defendant does not have a right to counsel before deciding whether to take a breathalyzer test.  Those cases, however, were decided before a 2003 amendment that changed the Massachusetts DUI statute, G.L. c. 90, § 24.  Before the amendment, there was a permissible inference that a person was under the influence with a blood alcohol level at or above .08.  The amendment removed the permissible inference and made it a violation for a person to operate a vehicle with a blood alcohol level at or above .08.

beerIn Commonwealth v. Neary-French, the defendant moved to suppress the results of her breathalyzer test, arguing she had been denied her right to counsel before deciding whether to take the test.  The trial court reported to the Appeals Court the question of whether the amendment that created the per se violation made the decision of whether to take a breathalyzer test a critical stage of the proceedings, thus triggering the right to counsel. The Supreme Judicial Court transferred the case to itself on its own motion.

This case arose from an incident beginning at around 1:15 in the afternoon.  The police chief was on patrol when he was signaled and told that the defendant’s vehicle was “bumping into” another vehicle.  He called for assistance.  When the other officer arrived, he administered field sobriety tests and arrested the defendant, based on those tests and his observations.

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The termination of an employee is always complicated, but it is even more complex when the employee has a high level position and an employment contract.  When the employment agreement sets out the circumstances under which the employment may be terminated, a failure to follow it can have expensive consequences for the business.  Employment agreements commonly require an employer to pay severance for termination without cause, so it is very important for the employer to follow all of the contract’s requirements when terminating for cause.

19-08-6In EventMonitor, Inc. v. Leness, the plaintiff was a software company that had hired the defendant as its vice president for business affairs in 2001.  Pursuant to the agreement, the company could terminate the defendant without cause with 30 days’ notice, but it had to pay severance of 12 months’ salary and benefits in the event of a no-cause termination.  The contract required the company to pay unused vacation time, regardless of whether termination was for cause or without cause.  There was also a non-disclosure provision that required the defendant to return any items with proprietary information, including any copies.

In 2007, the defendant presented a business proposal to the company president that would spin off the sales and support business into a new company, led by the defendant.  The new company would take most of the revenue, which came from service and licensing agreements.  The president thought that the defendant developed the plan out of his own self-interest and that it demonstrated a lack of loyalty to the company.  The company notified the defendant of his termination.

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