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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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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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