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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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Breach of contract claims often involve disputes over the terms of the agreement, what occurred, and whether a party’s actions constituted a breach.  Sometimes, however, there is a dispute over whether a valid contract even exists.  The existence of a valid contract is fundamental to any breach of contract claim.  To create an enforceable contract, the parties must agree on the material terms and have a present intention to be bound.
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In a recent case, the Massachusetts Appeals Courts determined whether the trial court could find that there was not a valid and enforceable contract when the parties to the contract and the case stipulated that there was.  In Goddard v. Goucher, the defendant, acting as agent and attorney in fact for his mother, attempted to sell a property she held as trustee.   After receiving an offer, the defendant pulled together a team to develop a proposal for potential permitting of the property, which contained wetlands.  The team included an attorney and the plaintiff, who was an environmental engineer.  When the offer fell through, the defendant offered to sell the property to the plaintiff for one dollar and the payment of the back taxes.

The plaintiff asked the attorney from the team to draft a purchase and sale agreement.  The draft stated that the purchase price was one dollar and that the deed was to be delivered on an unspecified date in June 2007, at 10:00 a.m.  The agreement stated that the closing date could be extended for not more than 30 days.  There was also language that time was of the essence.  The plaintiff signed the agreement, and his attorney sent it to the defendant.  The defendant sent it to another attorney for review.  The defendant’s attorney made handwritten revisions to the agreement, including adding language clarifying that the buyer would assume all encumbrances of record and otherwise and “all past, present, and future taxes.”  The defendant signed the agreement with the revisions and returned it to the plaintiff.  The plaintiff testified that he received the signed agreement in August 2007.  The plaintiff’s attorney then performed a title search on behalf of the plaintiff.

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Massachusetts, like many states, has what is known as a recreational use statute.  Recreational use statutes provide some amount of immunity to landowners who open their property to the public for recreational use.  Pursuant to the Massachusetts statute, landowners who open their property to the public for recreational purposes without imposing a charge or fee are not liable for personal injury, absent willful, wanton, or reckless contact.  G.L. c. 21, § 17C(a).  The statute therefore encourages landowners to open their property up to the recreational use of the public for free.  The Massachusetts Appeals Court recently considered whether it barred a negligence claim of a woman who was injured by a go-cart while her children were driving go-carts, when the mother had not paid an admission fee for herself but had purchased ride tickets for her sons, in the case of Amaral v. Seekonk Grand Prix Corp.

file000427960158The defendant is a corporation that runs a recreational facility.  The defendant charges fees for a number of activities, including go-carts, bumper cars, and miniature golf.  The defendant does not charge an admission fee or charge spectators.

The plaintiff and her minor sons went to the facility. She bought tickets for the boys to ride the go-carts.  She stood behind a fence to watch them, and a girl drove a go-cart through the fence and hit her.  As a result of her injuries, the plaintiff ultimately suffered a pulmonary embolism.

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Mass. Gen. Laws ch. 93A, § 2 protects consumers from unfair or deceptive practices or acts in the conduct of trade or commerce.  What constitutes an unfair or deceptive practice or act, however, is not always clear.  The First Circuit recently considered whether a company that provided a service that was used for illegal purposes was liable to the victim in Walsh v. Teltech Systems, Inc.

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SpoofCard is a prepaid calling service that allows callers to choose the number that appears on the recipients’ caller ID, alter their voices on the call, and record and store the calls.  In this case, a woman called the plaintiff through the service and made sexually harassing comments, using her former employer’s number and a voice disguised as male.  Additionally, the calls were recorded without the plaintiff’s consent.  The plaintiff reported the calls to the police department, and the woman’s former employer was arrested and spent several days in jail.

The plaintiff then received voicemails from a blocked number, threatening her if she did not drop the charges.  Additional charges were brought against the same man.  The plaintiff quit her job and moved out of her apartment, which was in the same complex where the charged man lived.

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Many businesses include alternative dispute resolution provisions as a standard part of their contracts. Sometimes, however, one party would prefer to litigate its claims against the other.  Under Massachusetts law, a party cannot be required to arbitrate any claim that is not covered by the agreement to arbitrate.

file00014008231The Massachusetts Appeals Court recently considered whether an agreement to arbitrate applied to claims that arose from services performed under a previous contract in the case of Merrimack College v. KPMG LLP.  The college alleged malpractice against an accounting firm, based on an alleged failure to detect serious irregularities in the financial aid office in fiscal years 1998 through 2004.  The defendant accounting firm moved to compel arbitration, based on a dispute resolution provision in its 2005 services agreement with the college.  The trial judge denied the motion, and the defendant appealed.

The parties had signed an annual service agreement each year in the form of a letter agreement sent by the defendant to the plaintiff.  None of the “engagement letters” from 1998 through 2004 mentioned arbitration.  The defendant relied on language in the engagement letter for fiscal year 2005.  The 2005 agreement set forth the auditing services the defendant would provide.  The 2005 agreement also included a two-tiered mandatory alternative dispute resolution provision for “[a]ny dispute or claim arising out of or relating to the engagement letter between the parties, the services provided thereunder, or any other services provided by or on behalf of [the defendant]…”

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Massachusetts law protects homeowners from contractors who violate the safety provisions of the building code.  Unfortunately, meeting safety requirements can add to the expense of a construction or home improvement project.  Homeowners may sometimes ask contractors to cut corners to lower the cost of the project.  The Massachusetts Appeals Court recently considered whether a contractor could use the homeowners’ instructions as a defense to liability for violating a building code requirement in the case of Downey v. Chutehall Construction Co.

The plaintiffs hired the contractor to replace the roof and roof deck on their townhouse.  The building code does not allow more than two layers of roofing on file0001573465344the building.  Both the proposal and the final invoice included a line for stripping off the existing roof, but, instead of stripping off the roof, the contractor installed a rubber membrane over it.  It was disputed whether the plaintiff represented to the contractor that there was only one layer of roofing and whether the plaintiff refused to allow the contractor to strip the layers, refused to allow the contractor to perform test cuts to find out how many layers there were, and expressly told the contractor to install a rubber membrane.  The court noted that the results indicated that the jury likely believed the contractor’s version of the events.

A few years after the contractor installed the roof, an HVAC contractor cut a hole in the roof and found four layers of roofing materials and evidence of leaking.  The plaintiffs hired a different contractor to strip the roof and install a new roof and deck.

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It is important for any business to be appropriately insured against loss and liability.  A failure to have sufficient insurance can result in the business paying for not only the damages but also the expenses of litigation out-of-pocket. file3991250010322

In the recent case of Northland Insurance Company v. Doval Remodeling, Inc., an insurance company sought a declaratory judgment that it did not have a duty to defend or indemnify its insured in a case involving personal injuries.

The business had a general liability policy with the insurance company.  The policy contained an exclusion for bodily injury to any person who is employed by, leased to, or contracted with an organization that is contracted with the insured or others on behalf of the insured’s services, when the injury arises from and is in the course of employment or the performance of duties related to the organization’s business.

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Employee claims, whether based on allegations of wage and hour laws or discrimination, can sour a workplace.  Nevertheless, retaliation against an employee who has made a complaint is not the answer.  State and federal laws can make terminating an employee or imposing other adverse consequences because of a complaint or claim for an employment law violation very costly.  In fact, even if the employer articulates a legitimate reason for the termination, a retaliation claim may still succeed if the fact-finder determines it was a pretext.
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In the recent case of Travers v. Flight Services & Systems, Inc., a skycap filed suit against his employer, alleging that the company fired him for helping organize a class action suit against it.  The skycap won his unlawful termination case, and the company appealed both the verdict and the award of damages and fees and costs.  The skycap also appealed, alleging error in the District Court’s elimination of front pay damages, failure to treble front pay and emotional distress damages, and denial of prejudgment interest.

The defendant provides skycap services for JetBlue at Logan International Airport.  According to the opinion, the skycaps rely on tips for the bulk of their pay.  The plaintiff in this case was also the named plaintiff in the class action lawsuit.  The class action was based on a JetBlue decision to start charging $2 per bag checked in via skycap and then keeping the fee, rather than passing it on to the skycap.  The suit claimed that this fee diminished the tips skycaps received and violated Massachusetts wage and tips laws and the Fair Labor Standards Act.

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The Boston Redevelopment Authority (“BRA”) has created an affordable housing program that is intended to help create and maintain affordable housing opportunities for middle-income residents of the city.  The affordable condominium units sold under this program are subject to restrictions that require owners to maintain the unit as their primary residence and prevent them from leasing out the unit.

DSC_1054The Massachusetts Appeals Court recently considered whether a unit owner violated these restrictions by having roommates and spending a significant amount of time traveling as part of his job in Boston Redevelopment Authority v. Pham.

When the unit owner originally applied to purchase the unit, his application indicated his sister would live with him.  He signed several documents, including the deed, the deed rider covenant for affordable housing, a note, a mortgage, and an affirmation stating he agreed to the provisions of the unit deed, the master deed, the declaration of trust, the by-laws, and the condominium rules and regulations.  He also signed an affidavit with his application and again each year, stating that the unit was his principal residence.

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