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Sometimes a case is in progress during or shortly after a change in the law, when its application and interpretation are still uncertain.  In such cases, the parties may prefer to settle rather than risk an unpredictable result.  In the recent case of Demarco v. Demarcocheck, the parties chose to reach a settlement related to spousal support rather than complete the trial.  The record suggests that the judge encouraged settlement based upon an assumption about how the Alimony Reform Act of 2011 would apply to the case, but a subsequent opinion by the Supreme Judicial Court made that assumption erroneous.

The parties in this case had an alimony provision in their separation agreement that ultimately merged into their judgment of divorce.  The agreement provided that the husband would pay alimony until either the death of one of the parties, the wife’s remarriage, or when the husband had no gross earned income after reaching age 68.  The legislature subsequently changed the law to provide that general term alimony orders terminate when the payor reaches full retirement age.  After the husband stopped paying alimony, the wife filed a complaint for contempt, and the husband then filed an amended complaint for modification based on his reaching retirement age.

It appeared that the attorneys and judge all believed that the retirement age provision of the act would apply retroactively.  If so, the husband would no longer be required to make the alimony payments.  With the consent of the parties’ counsel, the judge discussed the benefits of settling the case, noting that the interpretation of the act was unsettled and that the result of proceeding to trial could be very harsh for the wife.

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Landlords have legal obligations to their tenants. Under Massachusetts law, a landlord may not interfere with the tenant’s quiet enjoyment of the property. Violations of Massachusetts G. L. c. 186, § 14, including interference with quiet enjoyment, can result in liability for either actual and consequential damages or three months’ rent, whichever is greater.

CrackIn the recent case of Clark v. Leisure Wood Estates, Inc., the judge allowed multiple awards for interference with quiet enjoyment.  Residents of a manufactured housing community filed suit against their landlord, alleging a failure to properly maintain and repair common spaces, roads, and home sites. The judge found there had been interference with the plaintiffs’ quiet enjoyment of certain common areas, as well as separate breaches of the covenant of quiet enjoyment regarding the conditions of the plaintiffs’ home sites.  The award included two separate awards for three months’ rent to each household for the breaches of quiet enjoyment.

The defendant appealed, arguing more than one award for interference with quiet enjoyment was improper.  The appeals court noted that parties may generally recover separate awards for separable and distinguishable injuries. The court pointed out that generally damages for interference with quiet enjoyment are measured by the lost value of the rental, but § 14 allows tenants to recover for all foreseeable losses.  Although the damages in cases such as this one can be difficult to measure, § 14 provides for an alternative remedy – three months’ rent.

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The Americans with Disabilities Act (ADA) generally prohibits employment discrimination against qualified individuals on the basis of disability.  A qualified individual is a person who can perform the essential functions of his or her job, with or without reasonable accommodations.  Reasonable accommodations can include modified schedules, modified or new equipment, or job restructuring.  There are exceptions for situations in which the reasonable accommodation would cause an undue hardship to the employer.  42 U.S.C. §§ 12101 et seq.

accessibilityMassachusetts law also prohibits discrimination against anyone who alleges to “be a qualified handicapped person” who is able to perform the essential functions of the job with a reasonable accommodation.  As with the federal law, there are exceptions if the reasonable accommodation would cause the employer an undue hardship. Mass. Gen. Laws Ann. ch. 151B §4(16).

Under either law, the employer must provide a reasonable accommodation to a qualified individual, but the employee must be able to perform the essential functions of the job with that accommodation.  The First Circuit recently reviewed a district court’s grant of summary judgment in Tuvell v. International Business Machines, Inc. The plaintiff filed suit against his former employer, alleging violations of the ADA and state discrimination laws.  The complaint alleged that the employer did not reasonably accommodate the plaintiff’s post-traumatic stress disorder.  Additionally, the plaintiff alleged discrimination on the basis of race, gender, and age.  The complaint also alleged retaliation, including termination, and failure to properly investigate.

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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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