Law Office of Isaac J. Mass -- Greenfield, Massachusuetts
 
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_ In the wild west of the internet, many people believe they can post anything they want about people they do not like or are angry at.  It is not true.  If someone has intentionally or negligently posted a negative lie about you or presented information in a way that leaves a false impression on a website or social network like facebook, google+, twitter or other network you may be able to sue them for damages to your reputation.  This is also true is someone merely repeated or re-tweeted the  lie.

In Massachusetts, the elements of a defamation claim are:
  1. a false and defamatory communication
  2. of and concerning the plaintiff which is
  3. published or shown to a third party



In Massachusetts, you know must also show fault, i.e. that the publication was at least negligent if not intentional.  Written defamation is libel and when it could damage the plaintiff's reputation in the community by accusing them of a crime (even an uncharged crime), having a loathsome disease (including most sexually transmitted diseases) or presents the plaintiff in a light that suggests he or she is unprofessional or unethical in business, the libel may be actionable per se, which means plaintiffs do not need to plead or prove economic losses in order towin. 

The statute of limitations for defamation in Massachusetts is (3) years.   Massachusetts, however, has adopted the single publication rule, defining publication as the time when a work is "first made widely available to the public". See Abate v. Maine Antique Digest, 17 Mass. L. Rep. 288 (Mass. Super. Ct. 2004).

Online attacks may also be actionable under the Massachusetts anti-bullying statute.

If you have been defamed, whether with slander (oral defamation) or libel (written defamation), you may be able to recover money for the damage to your reputation.  For a free consultation on your case, contact the Law Office of Isaac J. Mass. 


 
 
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_ Today, in the case of Guzman v. Pring-Wilson, No. 10-P-1431, (2012), the Massachusetts Court of Appeals ruled that intentional actions do not preclude negligence.   Cindy Guzman was the executrix for the estate of Michael Colon and brought an action against Alexander Pring-Wilson for damages sustained from Pring-Wilson’s fatal stabbing of Michael Colon on the streets of Cambridge.  The facts of the case showed that Pring-Wilson, losing a fist fight pulled a knife and began to swing it wildly, striking Colon multiple times including piercing the right ventricle of his heart causing death. 

On appeal, Pring-Wilson argued that all the facts at trial about the fight were accurate, but that his actions were intentional and not negligent.  The Court of Appeals disagreed, even though Pring-Wilson intentionally pulled and swung his knife, there was no evidence that he intended to cut or kill Colon.  The court reminded us that “[i]ndeed, much negligent conduct involves some intentional act, e.g., driving at an excessive rate of speed, seeHarrison v. Mattapoisett, 78 Mass.App.Ct. 367 (2010)”

Non-court observers might ask, why would it matter if the stabbing was negligent or intentional.  The case indicates that Guzman brought the case on a number of theories including an intentional tort, only negligence went to trial.  In many cases, the source of funds to pay in personal injury or wrongful death case is the attackers insurance.  Insurance often precludes any coverage or liability for the insured’s intentional acts.

Victims of criminal acts have a right to civil recovery as well.  Sometimes, the case can be complicated when the attacker has no means to pay themselves.  Sometimes homeowners or business insurance can cover the actions that took place.  If you or a loved one has been the victim of a criminal action resulting in medical bills, loss of wages, scarring, disability, loss of enjoyment of life,  loss of consortium, or pain and suffering you can bring a civil case. Punitive damages may be awarded in some wrongful death cases. If you would like to have a free consultation of your case contact the Law Office of Isaac J. Mass.


 
 
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_ Every four years most people know that they get to vote for President, watch the Summer Olympics and have an extra day in February to get things done.  For those who are incarcerated though it means an extra day in jail or prison.

The amount of days you will serve in the House of Correction or State Prison may depend on when you are sentenced.  If you are held on bail or sentenced prior to February 29th on a leap year, you are likely to serve an extra day in jail if you are sentenced to a specific number of months or years in the House of Correction.    This may also effect when you are eligible for parole.  In 2006, the Massachusetts Appeals Court in Commonwealth v. Mello, 65 Mass.App.Ct. 674 (2006) overruled a trial judges approval of a motion to correct the mittimus and upheld the Massachusetts Department of Corrections policy of not crediting the extra leap day every four years.   

John Mello had been convicted of the crimes of home invasion, assault and battery by means of a dangerous weapon, and armed assault in a dwelling house.  He was sentenced to a term of ten years to ten years and one day on the home invasion conviction and to a concurrent term of four to six years on the armed assault in a dwelling house conviction. The defendant was also sentenced to five years probation for each of the three convictions of assault by means of a dangerous weapon, to be served concurrently on and after the completion of his State prison sentence. Mello sought two days of jail time credit for February 29th, 2000 and 2004.

The Appeal Court, however, found that the legislature “defined a "year" as a calendar year, not as a compilation of 365 days.”  General Laws c. 4, § 7, Nineteenth, reads:

"In construing statues the following words shall have the meanings herein given, unless a contrary intention clearly appears:

" 'Month' shall mean a calendar month, except that, when used in a statute providing for punishment by imprisonment, one 'month' or a multiple thereof shall mean a period of thirty days or the corresponding multiple thereof; a 'year', a calendar year " (emphasis added).

It is vital when accepting a plea agreement in a leap year to negotiate for a stay of execution until after February 29th or to seek a sentence which is for a term of days not months or years.  Two days may not seem like a lot of time to most of us, but when you are incarcerated every day counts.  If you have been arrested and face criminal charges, you should contact a lawyer who is familiar with how time in jail is calculated and credited.  The Law Office of Isaac J. Mass represents criminal defendants zealously and advocates for them even on the smallest details which effect their lives; contact us for a free consultation. 




 
 
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Earlier this month, in Shirley Wayside Limited Partnership v. Board of Appeals of Shirley, SJC-10869, (2012), the Massachusetts Supreme Judicial Court ruled that a mobile home park in Shirley can expand from 65 to 79 units.

Wayside owns and operates a 55 and older mobile home park on approximately twenty acres of land currently contains sixty-five mobile homes, one of which is abandoned.

At trial, Wayside presented evidence of trip generation in the form of a vehicle counting study. The study showed that 434 vehicles per day currently and their expert predicted that the proposed expansion would generate an additional sixty to seventy-five trips per day. The board neither performed its own traffic study nor had the Wayside traffic study reviewed by its own consultant.

In 1985, Shirley amended its zoning bylaw which permits expansion of preexisting nonconforming uses if the landowner satisfies three conditions including one:

1)      The board must find "that such extension, alteration, reconstruction or repair is not substantially more detrimental to the neighborhood than the existing non conforming structure or use."

In 2005, Wayside applied for a permit to replace the abandoned mobile home and to add an additional fourteen mobile homes. The proposed expansion will be toward the rear of the property, in an area well screened by trees and other buffers. The board denied Wayside's application, finding that Wayside "did not satisfy the burden that this expansion will not be more substantially detrimental to the neighborhood due to the density of the expansion and the encroachment of the 25% rule."

In reaching this conclusion, the board considered the following factors: (1) "present zoning regulations do not allow additional [mobile homes] in the Town of Shirley"; (2) "the impact of the additional residents on the area and the infrastructure of the Town of Shirley, in particular the possible economic burden on the school system, as the tax base for [mobile homes] is much less than the tax base for residential homes"; (3) encroachment on wetlands; (4) groundwater runoff; (5) density of the existing area and expansion area; (6) property devaluation to abutters; (7) the heavy amount of traffic on the road; and (8) the closeness of the proposed expansion to the twenty-five per cent allowed under the rule, which left no room for error.

Following a trial de novo, the Land Court judge addressed each of the reasons offered by the board in denying the permit. He concluded that no rational board could have drawn the same conclusions and that, accordingly, the board's decision was arbitrary and capricious. The judge vacated the decision and remanded with instructions to issue a special permit.

The Shirley zoning board had refused to grant a special permit, finding that the park owner failed to establish that the expansion would not be substantially more detrimental to the neighborhood than the existing mobile home park.

But the SJC upheld the Land Court judge in reversing the board’s decision.

“We conclude that the expansion complies with the zoning bylaw at issue, which we interpret as imposing minimum lot size dimensions on the entire mobile home park and not on individual mobile homes, governed only by board of health regulations,” Justice Robert J. Cordy wrote for a unanimous SJC. “We further agree with the Land Court judge that there is no evidence that either the density within the mobile home park expansion or the modest increase in traffic will be detrimental to the surrounding neighborhood.”

A Zoning Board must do more than consider a list of factors, they must articulate a reasonable reason why those factors in each case as applied fail to meet the zoning bylaws requirements.  Additionally, the Zoning Boards decision must be supported by evidence.

If you are bring a project before a zoning, planning board or other administrative agency, and want a consultation on your project contact the Law Office of Isaac J. Mass.  Attorney Isaac Mass has over a decade of experience serving on municipal boards and is currently a member of the both the Massachusetts Bar Associations Property Section Council, but also the Real Estate Bar Association.

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_Today in the case of Juliano v. Simpson, SJC-10843, 2012, the Massachusetts Supreme Judicial Court refused to expand social host liability to underage bring-your-own-beer parties.

On July 2, 2007, nineteen-year-old Jessica invited several friends, including nineteen-year-old Christian, to a party at her Wrentham home while her father was away. Christian attended with his sixteen-year-old girlfriend Rachel. On their way to the party, Christian obtained a "thirty-pack" of beer and a bottle of rum at a package store. They arrived at Jessica’s home between 6 P.M. and 8 P.M., and Christian brought the booze into the house.

Over the course of the evening, Christian drank one or two mixed drinks and six or seven of the cans of the beer that he had brought to the party. Jessica drank beer as well, from a supply that she had obtained earlier. Although there were some alcoholic beverages belonging to Jessica’s father in the house, Jessica neither consumed those beverages nor offered them to her guests. Jessica stayed in the company of her guests throughout the evening. At one point, an uninvited attendee began to engage in antagonistic behavior toward her, pouring beer onto the floor inside the house; Jessica ordered him to leave, and he did.

Sometime before 11 P.M., Christian and Rachel began to argue outside the house. They were loud enough to draw the attention of Jessica and several other guests. Rachel pushed Christian, and a friend of his intervened, removing him to another part of the property while Jessica spoke alone with Rachel. Soon afterward, Rachel and Christian prepared to leave the party. Concerned that Christian was still upset from the argument and that Rachel had drank too much alcohol to drive, Jessica suggested that she drive the two home. Rachel agreed not to drive herself, but Christian insisted that he take Rachel home. At approximately 11 P.M., the couple left the Jessica’s House with Christian driving. Shortly thereafter, the automobile struck a utility pole, causing injuries to both teenagers.

The Massachusetts Supreme Judicial Court found that neither Jessica nor her Father were liable for the injuries to the two teenagers.  In doing so they noted Ulwick v. DeChristopher, 411 Mass. 401, 408 (1991), where the court “expressed doubt that a social host can effectively prevent a guest from drinking the guest's own supply of alcohol, in contrast to the host who furnishes liquor to guests.”  The court believes that those who furnish alcohol are, like a bartender, better situated to "shut off" guests who should not be drinking because of age or intoxication, and are expected to do so.  The court found "a number of practical difficulties" in requiring a social hosts "to police the conduct of guests who drink their own liquor."   The court noted that social hosts might be forced to kick out drunk guests making it more likely that they would drink and drive.   

The court made no comment on the liability of the package store which provided the alcohol to Christian and Rachel in violation of the law.  The package store may very well be liable.  Also Christian is likely to be liable to Rachel for her injuries.

If you have been injured in an alcohol related incident and want more information about recovering for your injuries, medical expenses, lost wages, pain and suffering you can contact the Law Office of Isaac J. Mass.   If your loved one has died as a result of an alcohol related incident you may have an action for wrongful death, contact the Law Office of Isaac J. Mass for more information. Attorney Mass can meet with you at his Greenfield office or come to you by appointment.


 
 
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“The only two certainties in life are death and taxes.” --Benjamin Franklin in a 1789 letter to Jean-Baptiste Leroy.

As we rush to our accountants feverishly with W-2, 1099’s and Schedule C’s, in anticipation of hopefully receiving a refund, it pays not only to prepare for next year’s taxes, but also to prepare for death.  Instead of procrastinating take this time and a portion of your refund to prepare the documents you will need for the end of your life.  A will, durable power of attorney, heath care proxy and HIPPA form, will all help you and your loved ones when the time comes.

Here are some key questions to ask yourself about estate planning while you are preparing your taxes:

You might note that each dependent child currently earns you a $1,000 child tax credit.  Who will take care of those children if something should happen to you.  Your will can set out guardianship provisions for your child. 

As you itemize the deductions on your Schedule C, small business people should ask themselves, “who will take over the business when I am no longer around; How will my family replace the income?”  With so few family businesses left, you may need to set up a buy-sell agreement so that a partner or employee can buy-out your share of the business if you pass, or you may simply need an insurance policy to replace the income from a business that will dissolve without you.

As you are deducting the mortgage interest on your home, ask yourself, “Will this home go to my spouse or kids automatically or will it have to go through probate.”  Deeding your property properly will avoid any problems with probate.

As you report your modest interest on from your 1099-Div, ask “does my family know where all my bank and investment accounts are?  Does someone have the ability to access all my accounts if I become disabled or pass away?”  How will the mortgage, utilities and other monthly bills be paid, If you can’t get to the bank?  A Durable Power of Attorney  or joint accounts may be the answer?

As you itemize your charitable deductions ask yourself, “could I give more if I donated differently?”  Maybe a gift of stock would make more sense, because the charity would not have to claim the capital gain.  What kinds of gifts to charity do you want to make when I am gone?

When reporting your capital gains, ask “could I do better, by giving a gift of stock to my beneficiaries while I am alive and avoid the gains.”  A trust may be a great way for you to plan for this kind of giving without completely disposing of the property today.

When reporting your health insurance on you state return, ask “Who will make medical decisions for me when I am unable to do it myself? Do these people know what decisions I would make?  Will they be able to follow through? Will the doctors even give them the information they need to decide?” A carefully drafted health care proxy with health care directives incorporated may solve the problem.  A separate HIPPA will avoid all the red tape and keep your loved ones out of court in attempting exercising the healthcare proxy.

Finally, when examining the line item that allows you to deduct gambling losses, but only to the extent of winnings, ask yourself.  “Do I want to gamble with estate planning?”  If you do not make plans, your property will pass, after probate, by the laws of intestate distribution (perhaps passing to distant relatives who you don’t really like) and it may even go to the state itself.

If you would like help with your estate planning, you can contact the Law Office of Isaac J. Mass.  Applying your tax return to your estate planning is a way to have peace of mind that next year when you do your taxes, you will know the answers to all the questions above. 

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_ Many reports show mortality rates spike during the holidays between Christmas and New Year’s Day.  There are a number of speculated causes for the jump in the death rate ranging from the stress of holidays to increased binging food and alcohol.  Even hospital deaths go up as labor is more limited at this time of year.

After spending the holiday with your family you may be happy to shuffle off your mortal coil and not care what happens to your property after you die.  If, however, you do have concerns about how loved ones will be taken care of after you pass some simple estate planning can be just the trick. 

A will lets you tell the world, and more importantly the court, whom you want to get your assets. Die without one, and the state decides who gets what, without regard to your wishes or your family’s needs.  Making a will is especially important for people with young children, because wills are the best way to transfer guardianship of minors.

You may amend your will at any time. In fact, it's a good idea to review it periodically and especially when your marital status changes. At the same time, review your beneficiary designations for your 401(k), IRA, pension and life insurance policy since those accounts will be transferred automatically to your named beneficiaries when you die.

A will is also useful if you have a trust. A trust is a way to let you put conditions on how your assets are distributed after you die and it can help you minimize gift and estate taxes. But you still need a will since most trusts deal only with specific assets such as life insurance or a piece of property, but not the sum total of your holdings.

Even if you have what is known as a revocable living trust in which you can put the bulk of your assets, you still need what is known as a pour-over will. In addition to letting you name a guardian for your children, a pour-over will ensures that all the assets you intended to put into the trust are put there even if you fail to act on them before your death.

Any assets that are not retitled in the name of the trust are considered subject to probate. As a result, if you have not specified in a will who should get those assets, a court may decide to distribute them to heirs whom you may not have chosen.


 
 
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_ Sometimes a hand shake is not enough, but sometimes it is.  In 1934, when the owner of Cann’s Cabin a high quality seafood restaurant in Revere, Massachusetts got into business with a beer pouring buddy times got tough.  Just a year after the 21st Amendment to the US Constitution was signed the owner let the buddy start pouring beer at his restaurant.  Business was good at Cann’s and the two decided to build a new larger restaurant with a new tap room.  Then tragedy struck, the Cann’s owner was in a horrible accident and spent three months in the hospital.  During the Great Depression, three months in the hospital meant that the owner went bankrupt.  His buddy agreed to help him out and but the business assets, including leased real estate where they were building a new restaurant, back at the bankruptcy sale and let the owner pay him back when he recovered.  A third party advised them to put it in writing, but the buddy responded that they “trusted each other and had begun business with a hand shake and were content to go on in the same way, and Cann said he was satisfied."

Well the buddy kept part of his word and bought all the assets at the sale for $400.  When it came time to give them to the owner, however, he changed his mind.  The buddy said, "was through being Santa Claus.”  Usually a contract for the sale of land requires a written instrument and a hand shake is not enough.  Here though in Cann v. Barry, 293 Mass. 313 (1936), the court found that the buddy had a fiduciary relationship and had defrauded his business partner had defrauded him.  In this case the hand shake held up.  Still the best advice is to get it in writing.  You never know when your beer buddy is going to turn into Bad Santa.


 
 
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_In a down economy, landlords need to take every competitive advantage to get the highest rents possible.  One competitive advantage may be making your rental units smoke-free.  It may be helpful for landlords to think about what the biggest players in the market do.  Hotels are the king of room rentals.  When you make a room reservation, hotels ask you if you want a smoking or non-smoking room.  Hotel management understands that the nonsmokers do not want to be in a room where people have smoked.  The high rent leaders like the Marriott Group have even gone completely smoke free.  In addition to the higher rent revenue, landlords who have made their units smoke-free have also seen savings in maintenance costs.  In 2009, the Public Health Advocacy Institute at Northeastern University School of Law prepared a Report on Market Demand For Smoke-Free Rules In Multi-Unit Residential Properties which 99% of landlords who implemented a smoke-free rule felt it was a good decision and only 2% of residents in smoke-free housing were opposed to the rules.  If you would like a free copy of the 28 page study please email me.

A no-smoking addendum to your lease should be comprehensive enough to ensure that your smoke-free goals are achieved.  Working with existing tenants to convert to a smoke-free environment can be a challenge, but positive relationship can be maintained by working with tenants in a collaborative way.  Most tenants who smoke are in an ongoing battle to quit.  Often a tenant will agree to sign a lease addendum in exchange for landlord funding a smoking cessation program.  This will be a boon to the landlord who extends the life of the tenant and hopefully the length of the tenancy.  As January approaches smokers all over are making resolutions to quit and this may be the best time to make the move to smoke fee.


 
 
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_ A record low, just over half of all adults in the United States are currently married, and the median age at first marriage has never been higher for brides (26.5 years) and grooms (28.7), according to a new Pew Research Center analysis of U.S. Census data.

In 1960, 72% of all adults ages 18 and older were married; today just 51% are. If this trend continues, the percentage of adults who are currently married will drop to below half within a few years. Other adult living arrangements including cohabitation, single-person households and single parenthood-have all grown more common in the last few decades.

The Pew Research study also finds that the number of new marriages in the U.S. declined by 5% between 2009 and 2010, a sharp one-year drop that may or may not be related to the poor economy.  The research, however, however shows a continuing reverence for marriage with 61% of those never married still desiring to eventually marry.

Massachusetts has some of the most far-reaching laws in the nation regarding the rights of unmarried people living in a co-habitation arrangement. Co-habitation agreements are best thought of as legal contracts between parties. If Massachusetts residents are living with each other and believe they have a general agreement regarding division of financial and material assets, Attorney Isaac Mass recommends that they get it in writing. Courts will view these agreements the same way they would other personal and business contracts. If it's not in writing, it will probably not be enforceable at the time of the relationships demise. Whether you are considering moving in together or have been living in a co-habitation arrangement for a long time, make sure your verbal agreements are put in writing.

The Law Office of Isaac J. Mass can assist clients in putting their co-habitation agreement written and signed into a valid contract. Contact us to learn more about our full range of family law services for married and unmarried couples.


 

(c) 2012 Law Office of Isaac J. Mass, 289 Main Street, Suite 201 Greenfield, MA 01301