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Recent Court Decisions:

The Law Office of David F. Segadelli is a general practice that is located in the Charlestown neighborhood of Boston. For more than fourteen years Attorney Segadelli has helped hundreds of individuals and small businesses to successfully resolve criminal, civil and appellate cases.

U.S. Bank Trust, N.A., trustee v. Kelly A. Johnson & another, No. 19-P-0317 (Mass. App. Ct., Oct 24, 2019) - Through its response to the first of the three question reported to it by the lower court. The Appeals Court here "conclude[d] that the ten-day period prescribed by § 5 for filing a motion to waive the appeal bond is not a jurisdictional prerequisite to consideration of such a motion." Therefore, the defendants failure to seek a waiver of any appeal bond, within the same ten-day period that applied to the required notice of appeal did not mean that that request could not be considered by the lower court. The Court explained that although the relevant "statute sets a ten-day period following the entry of judgment for a defendant to file a motion to waive the appeal bond, it is silent on the consequence of a failure to do so." Plus, where the lower court, i.e., "Housing Court," seems to "routinely ... treat a similar time period for requesting a bond under rule 12 as advisory rather than mandatory, and [further the] practical considerations suggest strongly that in many circumstances the information essential to a determination of indigency will be unknown until after the bond is set."

Davis v. Comerford & another, No. SJC-12712 (Sept. 16, 2019) - Although vacating the lower court's orders at issue on appeal in this case, the Court did  conclude that in certain circumstances a lower court may upon motion of a landlord in a summary process eviction case utilize its equitable authority to order that a tenant at sufferance make "interim use and occupancy payments during the pendency of" said action. Before doing so the lower court "must hold a use and occupancy hearing" to consider the relevant factors and circumstances, which the Court further discussed in its decision. Moreover, if warranted by the circumstances, the court may direct that any such payments be made directly to the landlord.

Gliottone v. Ford Motor Co. & others, No. 17-P-1204 (Mass. App. Ct., July 31, 2019) - Reversing order that had granted summary judgment in favor of the defendant(s) as to the plaintiff's claims in a "Lemon Law" case because the Court concluded that although expert testimony might have been necessary to prove the precise cause of the automobile's defects it was not required to prove the elements of the plaintiff's claim under G.L. c. 90, s. 7N 1/2. Rejecting the argument made by the defendant, Ford, the Court explained that "because it does not matter what is causing the vehicle to malfunction, or even if it can be determined what is causing it, expert testimony is not always required to demonstrate that a vehicle has a nonconformity. In many circumstances, including these, a rational juror, without an expert, can understand the facts necessary to decide whether a plaintiff has demonstrated an actionable defect or malfunction."

Pierce v. Hansen Engineering & Machinery Co., Inc. & another, No. 18-P-1355 (Mass. App. Ct., July 31, 2019) - Before the Court on cross-appeals from a judgment for the plaintiff in a negligence action, the Court dismissed the principal appeal based on an argument, raised by the cross-appellant, that the lower court had abused its discretion by allowing the request by the defendants to file late their notice(s) of appeal. Where the  conduct and reasons provided by counsel for the defendants did not amount to "excusable neglect" In reaching this result the Court explained that "If the record does not support a showing of excusable neglect, 'there is no room within which judicial discretion can operate.'" Shaev v. Alvord, 66 Mass. App. Ct. 910, 911 (2006).

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