Massachusetts Appeals Court

The Massachusetts Appeals Court today ordered a new hearing for a college student seeking an extension of a restraining order against a classmate after a lower-court judge said it's a matter for college officials, not the judicial system.

The unidentified woman wanted to continue to have her equally unnamed classmate to stay away from her and her classes on campus after their romance soured and, she claimed, he stalked her and eventually attacked her sexually. But Somerville District Court Judge Neil Walker rejected her request:

The Massachusetts Appeals Court ruled today a Roxbury man has to tear down part of the two-unit condo building he put up on Magazine Street because he tore down a neighbor's fence and then built part of the structure where his neighbors used to plant vegetables and repair their cars.

The court said that while it couldn't figure out where the actual property line was, it didn't matter, because the neighbors had gained the disputed land through "adverse possession" - they had used it continuously for more than two decades without any complaints and presented evidence the people they bought their house from had erected the fence even earlier than that.

The Massachusetts Appeals Court today reinstated a Chelsea condo owner's lawsuit against her condo trust and management company over leaks she said were so bad she had mushrooms growing on her doorframe and she eventually had to flee the unit on her doctor's advice.

The Massachusetts Appeals Court has upheld a Newton man's conviction for pushing two Jehovah's Witnesses who'd rung his door - sending one to the hospital with a broken shoulder and arm after she lost her balance and fell.

Neal Farber was arrested on Aug. 13, 2008 after allegedly pushing the two 60-something women away from his house after first screaming at them that he was tired of them and their religion.

The Massachusetts Appeals Court today upheld a Boston Public Health Commission ban on the sale of cigar wraps, saying the commission has a legitimate public-health reason for trying to keep the green leafy material out of the hands of young people.

A group of wrap manufacturers had sued to overturn the regulation, charging the commission was violating manufacturers' constitutional rights - and those of the young black men the group said were the predominant purchasers of the product.

The court ruled the racial-discrimination argument moot because the companies had not raised it in their original suit in Suffolk Superior Court, but only on appeal after losing there. The appeals court then, however, went on at some length to dismiss the argument:

The Massachusetts Appeals Court ruled today that even if it bought John Carey's argument that the ex-wife of a friend wanted him to wrap a necktie around her neck and pull it tight enough to cut off her breathing, he'd still be guilty because neither state law nor a Supreme Court ruling on the privacy of sexual acts lets somebody assent to an act that could kill them.

The Massachusetts Appeals Court today tossed part of the drug conviction of a woman who verbally agreed to waive a jury trial but who never actually signed a waiver as required by state law, because she was illiterate.

A Cambridge man will get a new larceny trial because one of the jurors who heard his case may have been snoozing in the jury box.

The Massachusetts Appeals Court today upheld a verdict against a crematory that included a certificate with the wrong woman's information on an urn given to two Dorchester women after their mother died in 2003.

Drive a rental car without authorization from the rental company and you lose your normal right to privacy during a police search, the Massachusetts Court of Appeals ruled today in a case involving a man convicted of drug possession.

The Massachusetts Appeals Court ruled Friday that Jordan's Furniture's annual Red Sox contest isn't a lottery because nobody pays money specifically to enter it.

For the past several years, the furniture chain has reimbursed people who buy furniture during a set period if the Red Sox do something in particular - at first, win the World Series, but more recently, hit a sign in the outfield.

A customer, Gisela Levin, sued over the 2008 version, claiming the giveaway was a private lottery, which is illegal in Massachusetts. But in its decision, the court noted that none of the purchase price of the furniture went toward the potential prize - which nobody won since the Red Sox failed to win the World Series that year.

• Complete ruling

Via Massachusetts Lawyers Weekly.

CommonWealth follows up on the case of a former attorney for the Massachusetts Appeals Court who got caught when the site did a little sting of people offering to sell term papers on Craigslist.

The Massachusetts Appeals Court today upheld the fraud conviction of a woman who used a co-worker's debit card to buy pizza and clothes and to renew her driver's license.

Laura Ryan, who used the co-worker's card while on work release from MCI Framingham, had argued that state law explicitly refers to fraud involving "credit" cards and that debit cards are just not the same.

The appeals court, however, discounted that argument and upheld Ryan's conviction as "a common and notorious thief:"

The Massachusetts Appeals Court ruled against the clothing chain today in a tax case involving a subsidiary at which nobody worked.

The Hingham-based Talbots set up a subsidiary in another state, loaned it more than $100 million, transferred certain intellectual assets to it, then tried to deduct the cost of royalties for use of that property.

But the subsidiary had no employees and all decisions were made at Talbots headquarters back here in Massachusetts, and that constitutes a legal "sham," the court ruled, adding it was not amused to learn that:

The record also contains several letters and memoranda from Talbots employees and outside advisors which reveal that the transfer and licensing arrangement here "was specifically devised as a tax avoidance scheme."

The case is similar to a ruling against Syms in 2002 and against publisher IDG last fall.

• Complete ruling

The Massachusetts Appeals Court today overturned a judgment against a worker who had sued Harvard Vanguard for discrimination, ruling he has the right to make his case to a jury that having a supervisor call him "a dirty fucking nigger" was proof of workplace discrimination against him.

The Massachusetts Appeals Court ruled today some evidence against a man charged with driving down I-93 while drunk and with a cracked windshield can't be used against him because he was initially pulled over for having black tape over "Spirit of America" on his license plate.

A divided Massachusetts Appeals Court said today a man with three OUI convictions under his belt can get his license back four years earlier than the Registry wanted because it's not his fault Massachusetts didn't learn of one of his out-of-state convictions until several years after the fact.

The Massachusetts Appeals Court ruled today that some families living on Hingham's Crow Point can continue to use a small beach that had been blocked off in 2004 by some other families closer to the water - decades after the entire neighborhood first began using the beach.

In its ruling, the court said a lower-court judge erred in siding with the blockers by incorrectly interpreting part of the Colonial Ordinance of 1641-1647, which codified what is still Massachusetts law on property rights of seaside residents.

The Massachusetts Appeals Court ruled today a woman who claimed to be the daughter of an East Boston parking-lot owner could share in his estate even if none of the man's relatives had ever heard of her - or even if she was not his biological daughter.

At issue is a $32-million estate left by Lou DeSanctis, who, despite having made millions running contracting businesses and two East Boston "park and fly" lots, died without a will in 2008.

A few months after his death, his sister, Lydia Bevis, turned over administration of his estate to Mary Verna Hughes, who said she was DeSanctis's daughter. That came as shocking news to his nieces and nephews, who had never heard of her and who sued to block her from sharing in the estate.

But, as the appeals court noted:

The Massachusetts Appeals Court ruled today that while printouts of alleged e-mail correspondence are not enough by themselves to convict a man of soliciting an underage prostitute online, the fact that he showed up at the specific assignation time and place mentioned in the messages is.

At issue were 37 pages of printouts of alleged e-mail correspondence between a man and somebody he thought was a 15-year-old prostitute advertising on Craigslist - who turned out to be a state trooper who specializes in ferreting out such people online.

The Massachusetts Appeals Court ruled today a worker injured at a Childrens Hospital construction project in 2003 has the right to sue the contractor who hired him because the site was a complete and dangerous mess.

A lower court had thrown out William Docos's lawsuit against John Moriarty and Associates on the grounds the leaning sheetrock that injured him was "an open and obvious" danger, so his injuries were his own fault.

But the appeals court reinstated his lawsuit, saying there's dangerous and then there's dangerous:

We now have an equivalent in divorce court: A woman who appealed a divorce ruling giving her ex-spouse most of their assets even though she tried to have him murdered.

The Massachusetts Appeals Court this week upheld a family-court judge's decision to award 90% of the couple's assets to the husband, who now has full custody of their two children and who suffered painful injuries in what might have been an attempt at murder by drowning.

The Massachusetts Appeals Court ruled today a woman who took her daughter away from Lebanon doesn't have to return her daughter there because its courts did not consider the same issues Massachusetts courts would when considering her case.

The Massachusetts Appeals Court today overturned the drug convictions of two Somerville brothers who acknowledged they were hearty consumers of pot, cocaine and Ecstasy because a key part of the case against them involved certificates of authenticity on the drugs found in their apartment.

Massachusetts courts have been tossing drug and gun convictions based on those certificates ever since the US Supreme Court ruled last year - in a case involving a Boston man - that admitting the certificates as evidence without giving defendants the chance to question the experts who filled them out violated their right to due process.

The Massachusetts Appeals Court today rejected a request from Boston-based publisher IDG for abatements on taxes for payments to one subsidiary from other subsidiaries.

IDG, which publishes technology magazines and Web sites around the world, had sought an abatement on excise taxes owed in 1992, 1993 and 1994, arguing that royalties paid by its various subsidiaries for use of the brand's "world" logo (think Computerworld and PC World, both IDG subsidiaries) to an IDG subsidiary called IDG Holdings should not be counted toward IDG's overall corporate income.

The court, however, agreed with the Department of Revenue and the Appellate Tax Board that the transfer of the "world" licensing business from the IDG mothership to the subsidiary "had no economic substance or business purpose other than tax avoidance, and therefore constituted a sham transaction," because IDG Holdings conducted no actual business. IDG produced documents showing IDG Holdings had opened accounts with an investment firm and a bank in Delaware, but the court ruled a bank account by itself does not show actual business operations.