MIRAGEAS & AVERY FEATURED IN MASSACHUSETTS LAWYERS WEEKLY AFTER SUCCESSFULLY DEFENDING FRIVOLOUS APPEAL
Brown v. Entin
BRISTOL SUPERIOR COURT No. 1773CV00235
MASSACHUSETTS APPEALS COURT No. 21-P-70
In February of 2022, a panel of judges from the Massachusetts Appeals Court affirmed a Superior Court judgment entered in our clients’ favor following a five-day bench trial in June of 2019. The case centered upon a boundary dispute whereby both neighboring parties laid claim to the same four acres of land. The Superior Court determined that the disputed land had been erroneously deeded twice, first to our clients’ predecessor-in-title and then to the defendants’ predecessor-in-title some 12 years later. Hence, our clients held title to any overlapping land in the two deeds according to the old adage “first in time, first in right.” The Court went on to determine that the proper boundary lines described in our clients’ deed were those drawn by their expert surveyor, Robert Staples, PE.
Although the Superior Court rejected a number of objections to the judgment that the defendants raised after trial, the defendants decided to press on with a full appeal of the judgment to the Massachusetts Appeals Court. Thus, our clients were forced to incur substantial legal expenses on an appellate brief and oral argument in the Appeals Court. In its decision, the Appeals Court not only affirmed our clients’ judgment, but agreed that the defendants’ appeal was frivolous and entirely without merit, entitling our clients to the reimbursement of their attorney’s fees on appeal. The Court went on to award our clients $37,227.50 in fees – just $200 less than the total requested by our firm via motion.
Given the fairly infrequent nature of attorney’s fees being awarded for frivolity in the Appeals Court, and the sizeable amount of the award, our victory was recently featured in an article by Massachusetts Lawyers Week – check it out below!
A special thanks goes to appellate attorney extraordinaire Kevin Powers of Foxborough, who assisted our firm in the preparation of its appellate brief and presentation at oral argument.
Firm Secures Dismissal of Pipe Supplier from Mesothelioma Litigation
BARRY v. 3M COMPANY ET ALS.
MIDDLESEX SUPERIOR COURT No. 1981CV03038
In this case, our firm secured dismissal of a long-time pipe supplier client from costly mesothelioma litigation filed against multiple manufacturers, suppliers and distributors in the New England area. Mesothelioma cases typically involve claims for wrongful death and/or permanent injuries (including pain and suffering) caused by the inhalation of asbestos-containing products. Companies who are shown to have sold and-or failed to provide adequate warning as to the dangers of asbestos products can be held strictly liable for significant (multi-million dollar) damages, sometimes decades after the alleged exposure. occurred. Mesothelioma cases require the hiring of costly experts to provide opinions at trial on the plaintiff’s medical history, and whether or not the plaintiff’s exposure to the defendants’ products led to the medical issues suffered by the plaintiff.
Although our client’s corporate name had been around since the early 20th century as a seller of pipe and appurtenances in Massachusetts, its current owners had only purchased the business assets (including the corporate name) in 1986 – well after the use of asbestos pipe in the construction industry had been widely discontinued, and many years after the plaintiff’s alleged exposure. In fact, our client’s owners had set up a brand new company to purchase these assets, and the selling corporation continued its corporate existence for another 10 years after the sale. Our firm was therefore able to show that our client could not be liable to the plaintiff on a “corporate successor” theory based on his exposure to any products that our client’s corporate predecessor may have supplied to construction sites between 1968 and 1972. We also demonstrated that the plaintiff had failed to produce sufficient evidence of any asbestos-containing products supplied by the corporate predecessor to any construction sites on which the plaintiff had worked during this time. After a motion for summary judgment on these issues was granted by the Court, our small business client was dismissed from suit prior to trial, saving it enormous expense in terms of litigation fees and potential liability.
Avery Honored with WCBA President’s Award
Attorney Ryan P. Avery was recently honored as one of two recipients of the Worcester County Bar Association (WCBA) President’s Award for the 2019-2020 term. Current WCBA President Robert White presented Avery with the award at the Association’s annual dinner on June 9, 2020.
The WCBA President’s Award is presented annually to one or more members for their outstanding service and dedication to the bar association. Attorney Avery has been a WCBA member for 8 years and has served as Chair of the Labor & Employment, Civil Litigation and Superior Court Committees. He has also served on the WCBA Executive Committee since 2017.
Defense Verdict: Firm Prevails in Trial Over Commercial Property Eviction
Medway Auto Sales, Inc. v. McMullin
Norfolk Superior Court No. 1582CV00900
In this case, our office secured the dismissal of all claims against our client, a commercial landlord in Medway that had been sued by its former tenant for breach of contract, wrongful eviction, conversion of property and violation of the Massachusetts Consumer Protection Statute (Mass. Gen. Laws c. 93A). Final judgment was entered in our client’s favor following a three-day jury trial held in Norfolk Superior Court at which the former tenant requested damages of approximately $300,000.00. The jury found our client not liable for two of the three claims that it considered, and awarded the tenant zero damages on the third. In a separate written decision, the judge presiding over the case found that our client had not violated Chapter 93A, a claim that, if successful, would have entitled the tenant to his reasonable attorney’s fees plus three times (3X) any damages awarded. The tenant’s post-trial motion was denied.
Avery Selected to Massachusetts Super Lawyers’ List
Attorney Ryan P. Avery of MIRAGEAS & AVERY, LLC has been selected to the 2019 Massachusetts Rising Stars List by Super Lawyers. Each year, no more than 2.5 % of the lawyers in each state are selected by the research team at Super Lawyers to receive this honor. Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multi-phase process that includes a statewide survey of lawyers, an independent research evaluation of candidates, and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys. The Super Lawyer lists are published nationwide in Super Lawyer Magazines, and in leading city and regional magazines and newspapers across the country. Super Lawyer Magazines also feature editorial profiles of attorneys who embody excellence in the practice of law. For more information about Super Lawyers, visit SuperLawyers.com.
Establishing Prescriptive Easement Rights Over Driveway
Mongeau v. Masonic Building Association of Uxbridge
Worcester Superior Court No. 1785CV00315
This bench (jury-waived) trial focused on our clients’ use of a driveway that ran over part of the defendant’s land in downtown Uxbridge. Defendant had started to block access to the driveway in 2016, leading our clients to seek a declaration from the court as to their prescriptive easement rights to pass over the defendant’s land for purposes of entering and exiting their property. In order to establish prescriptive easement rights, a party must prove at least 20 years of open, continuous, adverse (non-permissive) notorious use of the land in question. The defendant counterclaimed for trespass as our clients had, in 2012, covered the driveway area with reground asphalt. The Court found that our clients testified credibly at trial to their family’s use of the driveway for over 60 years, and awarded them the requested easement while dismissing the defendant’s counterclaim. The judgment allows our clients, their heirs and/or any future parties who buy our clients’ property to continue to legally utilize the driveway without disturbance.
Proving Contractor’s Right to Payment on Homeowner’s Insurance Claim
Belfor USA Group Inc. v. Porter
Stoughton District Court No. 2017CV75
In this District Court matter, our office represented the plaintiff contractor, which had performed emergency restoration services at the defendant’s home pursuant to an express written contract with the defendant. The defendant’s counterclaims for consequential damages resulting from delay on the project were dismissed prior to trial. After a two day trial on the plaintiff’s claims for breach of contract and quantum meruit, our office successfully proved that the plaintiff had performed work outside the scope of the defendant’s homeowners’ insurance policy, for which the defendant was responsible to pay. The jury verdict awarded all damages requested by the plaintiff. After trial, the parties reached an agreed-upon judgment that was paid promptly and included the plaintiff’s attorney’s fees, costs and interest on the principal balance.
Specific Performance of Commercial Real Estate Purchase and Sale Agreement
Ferreira v. Oxford Realty & Trust, LLC et al.
Worcester Superior Court No. 1785CV01734
Our office filed suit on behalf of a commercial tenant in Milford, who operated a diner on the premises and had contracted to purchase the property after a short-term rental. Under the parties’ original purchase and sale agreement, the tenant had deposited approximately 23% of the purchase price during her rental term. After closing on the property was forestalled due to outstanding requests for c. 21E (hazardous waste) documentation, the property owner refused a short-term extension of closing and demanded some $65,000 more from our client in order to purchase the property.
Our office filed suit in Superior Court for specific performance of the purchase and sale agreement or, in the alternative, the return of deposits paid by our client pursuant to the purchase and sale agreement. We successfully obtained a preliminary injunction from the Worcester Superior Court (1) precluding the owner from selling the property until our litigation was concluded, (2) consolidating any eviction action subsequently filed by the owner with our suit and (3) establishing a temporary monthly rent for the property that was approximately 25% of what the owner was seeking.
The defendant soon returned to court with a request to modify the Court’s rent order. On behalf of our client, we obtained a commercial real estate expert to assess the property in question and draft a report on the property’s fair market value. The defendant’s modification request was denied. The defendant then filed a summary process action to evict our client from the premises, however, our suit for specific performance and the injunctive order previously entered by the court precluded this action from being expedited for trial.
Faced with a compromised rent order, increasing litigation costs and significant legal exposure, the defendant property owner agreed to convey the property to our client on highly favorable terms, including the credit of all deposits previously paid. An expedited closing on the property was consummated within days of reaching agreement.
Class Action Settlement – Failure to Pay Prevailing Wages
Maracallo et als. v. Patriots Environmental Corp. et als.
Worcester Superior Court
In this case, three closely-held asbestos abatement contractors and their common owners (the defendants) operated an employee retirement fund into which a certain percentage of prevailing wages earned by employees (our clients) was supposed to be deposited. These wages were earned by our clients from work they performed on public construction projects throughout Massachusetts.
Instead, the defendants withheld these wages while indicating on employee payroll statements that the deposits had, in fact, been made. As a result, our clients were deprived of more than $320,000 in retirement contributions, plus interest.
Our office filed a putative class action in April of 2015, and, shortly thereafter, a payment of $120,000 was made to the plaintiff class representatives and certain other members of the putative class. A class action was certified by the Worcester Superior Court in September 2015.
In April 2016, the Court approved a class action settlement proposed by the parties, which called for additional payments totaling $262,000 to be made to our clients.
After the defendants failed to consummate settlement pursuant to the Court’s order, our office obtained a real estate attachment on a piece of commercial property owned by the defendants’ real estate holding company, which was added to the class action suit. This property was sold in December of 2016, resulting in full payment to our clients pursuant to the Court’s settlement order.
Successful Appeal of Federal Workers’ Compensation Benefits Denial
Remillard v. United States Office of Workers’ Compensation Programs
U.S. Department of Labor, Office of Workers’ Compensation Programs
Our office successfully appealed the denial of our client’s continuation of pay benefits from the United States Postal Service. Thereafter, the client was approved by the Department of Labor for a schedule award compensating him for 12% permanent impairment to his upper extremity – within 1% of the disability rating reported by the client’s medical providers.