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Wynn And Wynn http://www.wynnandwynn.com Attorneys at Law, Massachusetts Mon, 13 Mar 2017 19:24:35 +0000 en-US hourly 1 http://wordpress.org/?v=3.9.17 One Surgeon Supervising Two Separate Operating Rooms: Medical Malpractice; Yes or No? http://www.wynnandwynn.com/blog/one-surgeon-supervising-two-separate-operating-rooms-medical-malpractice-yes-or-no/ http://www.wynnandwynn.com/blog/one-surgeon-supervising-two-separate-operating-rooms-medical-malpractice-yes-or-no/#comments Mon, 13 Mar 2017 19:22:17 +0000 http://www.wynnandwynn.com/?p=2723 By: Attorney Kevin J. O’Malley| Partner Two Complicated Spinal Surgeries, Two Separate Operating Rooms, Surgeries Performed at the Same Time, One Surgeon Supervising Both Surgeries, One Patient Is Left a Quadriplegic, Medical Malpractice; Yes or No? Last month the Boston Globe reported on a case tried in Suffolk Superior Court where a 45 year old […]

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By: Attorney Kevin J. O’Malley| Partner

Massachusetts-Attorney-Medical-Malpractice-Double-Surgery Two Complicated Spinal Surgeries, Two Separate Operating Rooms, Surgeries Performed at the Same Time, One Surgeon Supervising Both Surgeries, One Patient Is Left a Quadriplegic, Medical Malpractice; Yes or No?

Last month the Boston Globe reported on a case tried in Suffolk Superior Court where a 45 year old father of two brought a lawsuit against Massachusetts General Hospital and his surgeon because the patient was left a quadriplegic after complicated spinal surgery. The essential allegation was that the surgeon, who was supervising another complicated spinal surgery in another operating room at the same time, failed to disclose that he would be supervising simultaneous surgeries in separate operating rooms and that the surgeon’s divided attention caused the quadriplegia. The jury found in favor of the defendants.

Medical malpractice cases are often complex and require an exceptional grasp of both the legal issues and the technical aspects of medicine. Hospitals and doctors vigorously defend medical malpractice cases. You can be sure that, if you or a loved one had what you believe is a bad medical result, the doctor and hospital have already thoroughly investigated the situation and have already contacted their insurers and attorneys to defend them should a medical malpractice claim be made.

It is imperative that, if you or a loved one believe you have been harmed as a result of the negligence of a medical professional, you immediately consult with counsel to evaluate your case, gather the medical records and do the necessary investigation on your behalf to determine whether there is a viable claim for medical malpractice. Again, be assured that the doctor and the hospital are preparing their case as you sit idly by.

What is Medical Malpractice?

Medical malpractice is, simply put, negligence which occurs in the field of patient care. Like any negligence case, the basic elements are duty, breach, causation, and harm.

Duty

Did the medical provider owe you or your loved one a duty of care? This is perhaps the simplest element of a case. If you or your loved one was treated by a medical provider, then that medical provider owed you a duty to use generally accepted practices and procedures used by medical professionals in your specific geographic region.

Breach of the Duty

Did the level of care provided by the medical provider (be it doctor, nurse, surgeon, nurse’s aide, etc.). fall below the accepted practices and procedures in your area? Breach of the duty of care i.e. providing care below the accepted standard, is almost always, except in the most egregious cases, a question of opinion. Again, rest assured, that if you or your loved one have suffered a bad end medical result, the doctor, hospital and their insurers are consulting experts in order to obtain favorable opinions should a
case be filed. It is especially important to consult an attorney sooner rather than later so that your attorney can consult notable experts in the particular medical specialty to secure an opinion as to whether or not the care provided was substandard.

Causation

Even if a medical provider treated you and even if the care provided was substandard, if the breach of duty did not cause your poor medical result, there can be no recovery. Again, causation will likely be the subject of expert medical opinion so the sooner you consult an attorney, the better.

Harm

Did the substandard care provided to you by your medical provider which caused your poor medical result cause harm? If the answer is yes, then you have a medical malpractice claim for which you may recover damages. If the answer is no, then there is no medical malpractice claim for which you can recover damages. What kind of damages are compensable? Under Massachusetts law, a plaintiff may recover no more than $500,000.00 for pain and suffering, loss of consortium or companionship, embarrassment any other general damages under most circumstances. In addition to general damages, a successful plaintiff in a medical malpractice case in Massachusetts can recover compensatory damages like reimbursement of expenses such as medical costs and reimbursement of lost wages (both past and future).

Conclusion

The consequences of medical negligence can be catastrophic. Lives are turned upside down, bills can’t be paid because you are unable to work. The stress on you and on your immediate and extended family and friends can be overwhelming. If you or your loved one has experienced a bad medical result, while you are in the midst of all this tumult, the doctor, the hospital, and their insurance companies are building a defense against your claim. It is important that you contact us now if you think you might have a claim for medical negligence so that we can evaluate it, investigate it, seek medical opinions about the level of care you received and come to an informed decision as to whether or not there is a viable case for medical negligence.

In order to prosecute a medical negligence case, it takes experience and it takes horsepower. As one of the largest firms in southeastern Massachusetts over the last forty years, we have the resources to successfully litigate a medical negligence case for you. If you or a loved one believes you have been the victim of medical negligence, please call today 1.800.852.5211 or request a free consultation!

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Understanding Trusts in Massachusetts http://www.wynnandwynn.com/blog/understanding-trusts-in-massachusetts/ http://www.wynnandwynn.com/blog/understanding-trusts-in-massachusetts/#comments Mon, 27 Feb 2017 19:38:29 +0000 http://www.wynnandwynn.com/?p=2718 By: Attorney William Rosa| Partner My last blog focused on the various forms of tenancies in which you can hold real estate in Massachusetts. This blog is an expansion of my previous blog dated September 6, 2016 in which we are going to discuss an alternative type of ownership which is commonly used today in […]

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By: Attorney William Rosa| Partner

Types-of-trust-in-massachusetts My last blog focused on the various forms of tenancies in which you can hold real estate in Massachusetts. This blog is an expansion of my previous blog dated September 6, 2016 in which we are going to discuss an alternative type of ownership which is commonly used today in Massachusetts.

Today’s subject is Trusts. For those of you not familiar with the concept of a Trust, a Trust is most commonly a written instrument in which one individual (the Trustee) holds title to real estate for the benefit of one or more other individuals (the Beneficiaries), for example: A and B (husband and wife) are the owners of real estate. A and B create a Trust in which A is named as Trustee, and A and B are each named as 50% Beneficiaries of the Trust, with the survivor of them being entitled to the entire 100% beneficial interest upon the death of the other.

The primary reason for the use of a Trust is to separate the legal ownership in the Trustee from the equitable ownership in the Beneficiaries. This separation of legal and equitable ownership may shield the Beneficiaries from third-party liability. Since the Schedule of Beneficiaries to a trust is not recorded with the Declaration of Trust at the Registry of Deeds, the identity of the Beneficiaries is not a matter of public record. Additionally, upon the death of the first of the Beneficiaries, the entire beneficial interest of the trust is held by the survivor Beneficiary and does not pass through the estate of the first deceased Beneficiary.

There are two types of Trusts in Massachusetts. The first is a Testamentary Trust which is a Trust created by will or other document dealing with the estate of a particular person and only comes into use upon the death of that individual. This type of Trust is better left to a discussion of estates and estate planning rather than real estate; so, beyond identifying this type of Trust, we will not delve into Testamentary Trusts at this time.

The second type of Trust is what is commonly referred to as an Intervivos Trust which means it comes into use while the person who creates the Trust is alive. Intervivos Trusts can take, basically, two forms. The first is a Trust that is only used in a very few states, Massachusetts being one of them. This Trust is loosely referred to as a Nominee Trust. A Nominee Trust says that A, as Trustee, holds legal title to the property for the benefit of A and B (using the example above); however, the Trustee has no authority or power to deal with the property in the Trust without the consent of the Beneficiaries. Based upon the terms of the Trust, consent must either be by unanimous or a majority vote of the Beneficiaries in order for the Trustee to sell, mortgage, or take any action relative to the property held in the Trust. The Trustee must receive, in writing, such consent of the beneficiaries.

The second type of Intervivos Trust used in Massachusetts is more closely akin to a “true” Trust. In this case, A, as Trustee, again holds property for the benefit of A and B but in this type of a Trust, A, as Trustee, has the full and complete authority to deal with the Trust property as he or she deems fit. The relationship between the Trustee and the Beneficiaries is one of a fiduciary nature. This means that the Trustee owes to the Beneficiaries upmost good faith in dealing with the Trust property; or, in other words, the Trustee will do nothing with the Trust property that would be detrimental to the Beneficiaries. The advantage of this type of Trust is the Trustee may deal with the property without the consent of the Beneficiaries as long as the action taken is in the best interest of the Beneficiaries. If the Trustee is selling or mortgaging the property, any buyer or bank mortgaging the property does not need to look to any other party for consent to consummate the transaction.

As in all matters of this nature, it is helpful, if not imperative, that you discuss the available options with an attorney and accountant well versed in taxation and real estate law in order to ensure that the Trust that you are selecting is the appropriate vehicle for the purpose you wish to accomplish.

I hope this information has been helpful in alerting you to the existence of this very flexible instrument that may be of benefit to you and your family. Additionally, if you have any questions, please call the attorneys at Wynn & Wynn, P.C. at 1.800.852.5211 or request a free consultation.

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The Devil is in the Details – Documents to collect when facing divorce http://www.wynnandwynn.com/blog/the-devil-is-in-the-details-documents-to-collect-when-facing-divorce/ http://www.wynnandwynn.com/blog/the-devil-is-in-the-details-documents-to-collect-when-facing-divorce/#comments Mon, 06 Feb 2017 20:19:28 +0000 http://www.wynnandwynn.com/?p=2712 By: Attorney Jeffrey D. Kiesling | Associate If you believe that you may be facing divorce, you should secure all available financial documents. In most divorce cases the family’s finances are the primary focus of the divorce action because the parties want to know who gets what. The Court will rely on financial records as […]

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By: Attorney Jeffrey D. Kiesling | Associate

Documents-needed-divorce-Lawyer-Massachusetts If you believe that you may be facing divorce, you should secure all available financial documents. In most divorce cases the family’s finances are the primary focus of the divorce action because the parties want to know who gets what. The Court will rely on financial records as its basis for dividing the property, assets and liabilities of the marriage. Undocumented financial claims will not be persuasive to the Court. Since you are going to need and rely upon financial records, it makes sense to proactively identify and collect them.

Some of the documents may be in your possession, but you will most likely need to approach your employer, accountant, attorney and financial planner other documents. Please note that if your spouse is not aware of your intention to get a divorce you should try to avoid bringing attention to your collection of your financial records as it may cause suspicion.

Here are some suggestions for financial documents/information you will want to locate:

• Bank accounts. Whether you or your spouse have joint or separate bank accounts (checking, savings or both), you need to know where the accounts are and approximately how much is in each account.

• Life insurance policies. Look for policies — those personally purchased and those provided by employers. At some point you’ll have to find out the cash value of each policy by requesting a printout from the insurance company directly or from your investment firm or employer.

• Records pertaining to your home. Monthly mortgage statements tell how much equity you have in your home and how much you still owe. If you have a home equity loan on your home in addition to the mortgage, you’ll need that documentation as well.

• Financial records on recreational property and vehicles. Cottages, time-shares, boats, motor homes, cars, motorcycles and trucks are all part of your asset base. If you have a mortgage or loan outstanding on them, you’ll need to know how much equity you have in the property and what you still owe. Recent statements from lending institutions should tell you.

• Make a list of everything of value that you own. You’re not going to have these things assessed at this point; you just want a record of what there is and where.

• Retirement accounts, stocks and mutual-fund investments and pensions.

• Investment real estate and business interests.

• Your last three (3) years’ tax returns. Tax returns are valuable tracking documents to confirm income, profits, deductions and financial holdings.

Once you obtain these records keep them in a safe place until you are ready to proceed with your divorce at which point your attorney will review them with you and discuss the best plan for you moving forward in order to maximize your financial stake in the assets of the marriage.

If you have questions or would like assistance from an experienced attorney, please call Wynn & Wynn, P.C. 1-800-852-5211 or request a free consultation.

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Obtaining Payment of a Judgment for Money Damages http://www.wynnandwynn.com/blog/obtaining-payment-of-a-judgment-for-money-damages/ http://www.wynnandwynn.com/blog/obtaining-payment-of-a-judgment-for-money-damages/#comments Mon, 23 Jan 2017 20:41:46 +0000 http://www.wynnandwynn.com/?p=2701 By: Attorney Dianna M. Williams| Associate A judgment represents the end of a court case. A valid judgment resolves all contested issues and terminates the lawsuit.  It states who wins the case and what remedies the winner is awarded, which typically includes money damages, injunctive relief, or both. The “winner” of the lawsuit is often […]

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By: Attorney Dianna M. Williams| Associate

Massachusetts-Attorney-Obtaining-Payment
A judgment represents the end of a court case. A valid judgment resolves all contested issues and terminates the lawsuit.  It states who wins the case and what remedies the winner is awarded, which typically includes money damages, injunctive relief, or both. The “winner” of the lawsuit is often referred to as the judgment creditor and the “loser” is referred to as the judgment debtor.

Since a judgment represents the end of a lawsuit, it is not unreasonable to think that once you receive one, you are finished with your legal battle and, after collecting your money, can be on your merry way.  Unfortunately, it isn’t always that simple.  Judgment debtors often fail, and even refuse, to pay a money judgment entered against them.  If this is the case, there are several legal avenues available to obtain payment.

Determining the Judgment Debtor’s Assets

In order to get paid on a money judgment you first need to figure out what assets a judgment debtor has.  This can be done either through post-judgment discovery or a supplementary process action.

Under the Massachusetts Rules of Civil Procedure, a judgment creditor has broad power to obtain discovery from any person, including a judgment debtor, to assist in obtaining payment of a judgment. See Massachusetts Rules of Civil Procedure, Rules 30, 33, 34, & 69. Post-judgment discovery can be used to request information about and documentation evidencing a judgment debtor’s assets, including bank statements, paychecks, and tax returns. Through this rule a judgment debtor can also be deposed and required to provide detailed information, under oath, about his or her income, bank accounts, investment accounts, real estate, vehicles, boats, jewelry, art, collectibles, inventory, machinery, equipment, and other valuable assets.

Alternatively, a judgment creditor may commence a new lawsuit solely focused on obtaining payment of a prior judgment. This type of lawsuit is called a supplementary process action.  See Massachusetts General Laws Chapter 224, Section 14. In a supplementary process action, a judgment debtor is required to appear in court and submit to an examination under oath relative to his or her assets and ability to pay.  Other witnesses may also be called to testify as to the debtor’s assets.

Using the Judgment Debtor’s Assets to Obtain Payment of Your Judgment

Once this information is obtained, a judgment creditor can use other available legal tools to have those assets satisfy his or her judgment.

If the judgment debtor owns any physical personal property like vehicles, jewelry, artwork, inventory or equipment, the judgment creditor can obtain a Writ of Execution from the court.  A Writ of Execution is a legal document that allows a sheriff to attach any non-exempt personal property of the debtor and hold it for sale at a public auction for the purpose of satisfying the judgment.  See Massachusetts Rules of Civil Procedure, Rule 69, and Massachusetts General Laws, Chapter 235.

If the judgment debtor has money in a bank account or is receiving a wage, a judgment creditor can seek “trustee process attachment” to reach those funds and use them to satisfy the judgment. See Massachusetts Rules of Civil Procedure, Rule 4.2, and Massachusetts General Laws Chapter 246. While trustee process attachment is an effective way to reach the judgment debtor’s bank accounts, apart from domestic relations payments like alimony or child support, courts in Massachusetts are reluctant to garnish wages unless the court is satisfied that all other collection efforts have been exhausted.

If the judgment debtor owns real estate, the judgment creditor can levy the Writ of Execution on that property.  The judgment creditor then has a couple of options.  The judgment creditor can have a sheriff sell the real property at public auction and use the proceeds from the sale to satisfy the judgment.  Alternatively, the judgment creditor can simply record a copy of the Writ of Execution with the Registry of Deeds for the county in which the real estate is located. This option is more common. This recorded writ will act as a lien on the real estate that has to be satisfied before the judgment debtor can sell or refinance the property.

If the judgment creditor cannot find any specific, valuable asset of the debtor’s to apply to the judgment, he or she can proceed with a supplementary process action.  See Massachusetts General Laws Chapter 224, Section 14.  As noted above, once served with a summons, the judgment debtor is required come to court (or else a capias (warrant) will issue and the debtor will be brought in by a sheriff) and submit to an examination under oath relative to his or her assets and ability to pay the judgment.  The court will then enter a Payment Order, based on the examination, requiring the judgment debtor to make a single or recurring weekly or monthly payment(s) to the judgment creditor until the judgment has been satisfied. Payment review hearings can be set up periodically, usually every six months, to see if the judgment debtor’s financial situation and ability to pay has changed.  If the judgment debtor fails to comply with the court’s order for payment, he or she can be held in contempt.

If you have any questions or would like assistance in recovering monies owed or obtaining payment of a judgment, please call the attorneys at Wynn & Wynn, P.C., at 1.800.852.5211 or request a free consultation.

 

 

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I AM BUYING/SELLING MY HOME, DO I NEED A REAL ESTATE ATTORNEY? http://www.wynnandwynn.com/blog/i-am-buyingselling-my-home-do-i-need-a-real-estate-attorney/ http://www.wynnandwynn.com/blog/i-am-buyingselling-my-home-do-i-need-a-real-estate-attorney/#comments Mon, 09 Jan 2017 20:03:23 +0000 http://www.wynnandwynn.com/?p=2683 By: Attorney Patricia E. Couto| Associate Buying or selling a home is not an easy process and involves many different people, stacks of paperwork, complex legal documents, and occasionally several attorneys. Buying or selling your home will be one of the most important financial decisions that you face and it is important to make sure […]

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By: Attorney Patricia E. Couto| Associate

Massachusetts-Attorney-Buyer-and-Seller
Buying or selling a home is not an easy process and involves many different people, stacks of paperwork, complex legal documents, and occasionally several attorneys. Buying or selling your home will be one of the most important financial decisions that you face and it is important to make sure you know the parties involved, understand the documents you are signing and make yourself aware any legal obligations. Having an attorney present during your real estate transaction will ensure you know what is going on every step of the way and that the process runs as smoothly as possible.

BUYER’S ATTORNEY

The buyer’s attorney represents the interest of the buyer’s during the real estate transaction. The responsibilities of a buyer’s attorney include:

  • Reviewing and amending the Offer to Purchase and Purchase and Sales Agreement with the seller, the seller’s realtor and the seller’s attorney
  • Negotiating the terms of the Offer to Purchase and Purchase and Sales Agreement with the seller, the seller’s realtor and the seller’s attorney
  • Communicating with the buyer’s lender, the lender’s attorney, the realtors and the seller’s attorney to resolve any issues between the buyers and sellers or the buyers and the lender and to confirm that any requirements from the buyer’s lender have been met
  • Review the buyer’s closing disclosure and any documents the buyer’s may sign at the closing
  • Attend the closing with and explain all the closing documents to be signed

Depending on the lender, buyers can sometimes choose their own attorney to represent both their lender and themselves at their closing. The role of the Lender’s Attorney or “Closing Attorney” is generally to represent only the lender. However, Massachusetts allows one attorney to represent both the lender and the buyer at the closing as long as there are no apparent unresolved disqualifying conflicts between borrower and the lender.  This is because both parties are interested in protecting their interests to ensure marketable title and that the seller has discharged all liens and mortgages. Working with one attorney benefits the buyers by saving them money on legal fees.  The buyers only pay one attorney to review the title, communicate with all the parties, obtain any documentation needed for the closing and prepare and review all buyer closing documents.

SELLER’S ATTORNEY

The seller’s attorney represents the seller’s interest in the real estate transaction. The duties of a sellers’ attorney includes:

  • Creating the Purchase and Sales Agreement
  • Reviewing and amending  the Offer to Purchase and Purchase and Sales Agreement with the buyer, the buyer’s realtor and the buyer’s attorney
  • Negotiating the terms of the Offer to Purchase and Purchase and Sales Agreement with the buyer, the buyer’s realtor and the buyer’s attorney
  • Resolving any title issues that may be discovered during the title examination. NOTE: As the sellers, you are obligated by the purchase and sales agreement to deliver marketable title, meaning it is your responsibility to remove any defects in title.
  • Coordinating with the realtor or with the sellers to obtain a smoke certificate, any final utility readings, or a 6d certificate if a condominium is involved
  • Obtain mortgage payoffs or provide the closing attorney with authorization to obtain the payoff
  • Draft the quitclaim deed or any other legal documents that the sellers may need for the closing
  • Reviewing the sellers’ closing disclosure and any other documents that the sellers may have to sign at closing
  • Attending the closing

If you are thinking of buying or selling your home and have questions or would like assistance, from an experienced attorney, please call Wynn & Wynn, P.C. or request a free consultation.

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THE BASICS OF SUMMARY PROCESS PROCEDURE IN MASSACHUSETTS http://www.wynnandwynn.com/blog/the-basics-of-summary-process-procedure-in-massachusetts/ http://www.wynnandwynn.com/blog/the-basics-of-summary-process-procedure-in-massachusetts/#comments Mon, 19 Dec 2016 20:15:15 +0000 http://www.wynnandwynn.com/?p=2677 By: Attorney Corey T. Pontes| Associate In the Commonwealth of Massachusetts, summary process is the procedure by which a landlord evicts a residential tenant through the court. Summary process is governed by the Uniform Rules of Summary Process, which can easily be found online. In order to begin the summary process procedure, a landlord must […]

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By: Attorney Corey T. Pontes| Associate

Massachusetts-Attorney-Summary-Process” width=In the Commonwealth of Massachusetts, summary process is the procedure by which a landlord evicts a residential tenant through the court. Summary process is governed by the Uniform Rules of Summary Process, which can easily be found online. In order to begin the summary process procedure, a landlord must first serve a tenant with a Notice to Quit. The notice to quit must put the tenant on notice as to what specific day the tenancy will end. The notice to quit does not need to be served by a sheriff or constable, but it is advisable to serve the notice in quit in hand to the tenant. When the end of the tenancy runs, a landlord can begin a summary process.

The first step is to file a complaint with the housing court where the property resides. The landlord must also serve the tenant with the complaint, in accordance with the Massachusetts Rules of Civil Procedure. The entry date for Summary Process Actions is every Monday, with the hearing date to be the second Thursday following the entry date.

After receiving the complaint, the tenant must prepare an answer which denies every statement in the complaint that is in dispute and must also raise any counterclaims they have against the landlord. The answer is due to the Court and to the Landlord no later than the first Monday after the entry date.

Either party may make a request for discovery. The request for discovery is due no later than the first Monday after the entry date, the same date the answer from the tenant is due. Once the discovery requests are properly filed and served, the hearing date automatically gets postponed for two weeks. However, the party serving the discovery must remind the opposing party of the change in hearing date.

If the Defendant fails to file an answer and also fails to appear at trial, the Defendant will be defaulted, as long as the Plaintiff appears. If the Defendant does file an answer but fails to appear, he will also be defaulted, provided that the Plaintiff appears. An entry of default has the chance to be removed by discretion of the court or by motion by either party in writing prior to the entry of judgment on such default.

As far as procedure in Massachusetts goes, the summary process procedure can be easy to mismanage because of the strict deadlines. If you have any questions or if you need guidance as either a landlord or a tenant, please call the attorneys at Wynn & Wynn, P.C. at 1.800.852.5211 or request a free consultation.

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A LEGAL EVOLUTION: WHAT YOU CAN AND CAN’T DO WITH MARIJUANA IN MASSACHUSETTS http://www.wynnandwynn.com/blog/a-legal-evolution-what-you-can-and-cant-do-with-marijuana-in-massachusetts/ http://www.wynnandwynn.com/blog/a-legal-evolution-what-you-can-and-cant-do-with-marijuana-in-massachusetts/#comments Mon, 28 Nov 2016 15:34:11 +0000 http://www.wynnandwynn.com/?p=2671 By: Cara Kuzmiski| Law Clerk Massachusetts has been progressively taking a more liberal view on the use and regulation of marijuana within the state over the past eight years. In the 2008 election, Question 2 was approved which decriminalized the possession, by adults, of an ounce or less of marijuana. A person found in possession […]

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By: Cara Kuzmiski| Law Clerk

Massachusetts-Legalized- MarijuanaMassachusetts has been progressively taking a more liberal view on the use and regulation of marijuana within the state over the past eight years. In the 2008 election, Question 2 was approved which decriminalized the possession, by adults, of an ounce or less of marijuana. A person found in possession of less than one ounce of marijuana would receive a civil penalty of $100 instead of criminal charges.

In 2012, marijuana use again appeared on the ballot, this time in Question 3. Question 3 was approved by 63% of voters, according to the Secretary of State, which legalized the medicinal use of marijuana in Massachusetts and removed criminal and civil penalties for such use. Patients with certain conditions could now obtain marijuana produced and distributed from state regulated centers under this new law.

The laws regarding marijuana use changed drastically in the 2016 election. The most significant, and probably the most talked about result of this election in Massachusetts (aside from Donald Trump winning the presidential race), has to do with Question 4 on the ballot: “Legalization, regulation, and taxation of marijuana”. Just like its predecessors, Question 4 was approved by a majority of voters.

The recreational legalization of marijuana now allows adults to use, grow and possess marijuana in the state of Massachusetts. Effective December 15, 2016 the recreational use of marijuana will be legal for persons 21 years and older. Under the new law, individuals will be allowed to engage in the following activities:

• Private possession – up to 10 ounces inside your residence;
• Public possession – up to 1ounce in public places;
• Grow up to 6 marijuana plants in your home;
• Give 1 ounce or less to another adult (21+ years) as a gift.
• Produce or transfer hemp; and
• Make or transfer items related to marijuana use, storage, cultivation or processing.

Although marijuana is now legal in the state of Massachusetts, it does not come without regulations and tax consequences. The new law also requires a Cannabis Control Commission be established. The Commission will consist of three members appointed by the state Treasurer. It will be the responsibility of the Commission to administer the laws, create regulations, and oversee the licensing requirements for retail sales, similar to the regulation of alcohol. Retail sales locations will be available effective January 1, 2018, provided the retailer acquires the necessary license.

Once retail locations are available, the sale of marijuana will be subject to the following taxes:

• State sales tax = 6.25%;
• Excise tax = 3.75%; and
• City/Town tax = up to 2%

Under this new law: 1) Employers may prohibit the consumption of marijuana in the workplace; 2) Property owners may prohibit the use, sale or production of marijuana on their premises. Exception – A landlord may restrict your right to smoke and/or grow marijuana in a rented property, but they cannot restrict your right to consume it; 3) Authorized use under this law will not be a basis for adverse orders in child welfare cases. In order for activities, involving marijuana by a parent, to be considered an unreasonable danger to the safety of a minor child, clear and convincing evidence must be presented; 4) The state and local governments can restrict the use of marijuana in public buildings or at or near school property; 5) There is no change to the existing laws regarding medical marijuana treatment centers or operation of a motor vehicle while under the influence; and 6) Supplying marijuana to anyone under the age of 21 is unlawful.

Massachusetts joins seven other states and the District of Columbia having legalized the recreational use of marijuana. However, the legality and restrictions on use vary from state to state. The recreational use of marijuana is legal in the following states and the District of Columbia:

• Colorado (2012)
• Washington (2012)
• Alaska ( 2014)
• Oregon (2014)
• Washington, D.C. (2014)
• California (2016)
• Maine (2016)
• Massachusetts (2016)
• Nevada (2016)

The use and possession of marijuana continues to be illegal under federal law.

If you have questions or would like assistance from an experienced attorney, please call Wynn & Wynn, P.C. 1-800-852-5211 or request a free consultation.

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Former Owners Are Required to Raise All Claims Arising out of the Same Transaction or Occurrence in Summary Process Proceedings. http://www.wynnandwynn.com/blog/former-owners-are-required-to-raise-all-claims-arising-out-of-the-same-transaction-or-occurrence-in-summary-process-proceedings/ http://www.wynnandwynn.com/blog/former-owners-are-required-to-raise-all-claims-arising-out-of-the-same-transaction-or-occurrence-in-summary-process-proceedings/#comments Tue, 15 Nov 2016 20:08:57 +0000 http://www.wynnandwynn.com/?p=2644 By: Attorney Raymond C. Pelote| Partner Any former owners who have been foreclosed upon tend to use the Housing Court as its battleground to contest the foreclosure. Once a property is foreclosed upon and the property is purchased by the foreclosing mortgagee or its nominee, the foreclosing mortgagee or its nominee typically proceeds to evict […]

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By: Attorney Raymond C. Pelote| Partner

Massachusetts-Attorney-Summary-Process-Proceedings” width=Any former owners who have been foreclosed upon tend to use the Housing Court as its battleground to contest the foreclosure. Once a property is foreclosed upon and the property is purchased by the foreclosing mortgagee or its nominee, the foreclosing mortgagee or its nominee typically proceeds to evict former owners from the property. However, in the course of doing so, many former owners file answers and counterclaims objecting to the foreclosure and its process. Often times, former owners will claim that the foreclosing mortgagee failed to strictly follow the power of sale contained in the mortgage and the applicable foreclosure statutes set out in Chapter 244 of the Massachusetts General Laws.

In making any counterclaims regarding the foreclosure, former owners are required to assert any and all counterclaims arising from the foreclosure at the time the former owners file their answer to the summary process summons and complaint. Failing to do so, could prove fatal if another potential counterclaim surfaces after final judgment has entered in the summary process case. I recently handled such a case in the Southeast Housing Court sitting in Taunton, Massachusetts. I represented the foreclosing mortgagee who was seeking to evict the former owners from a property. In the course of answering the summary process summons and complaint, the former owners asserted a counterclaim for wrongful foreclosure stemming from the foreclosure action. Specifically, the former owners alleged that the foreclosing mortgagee chilled the foreclosure sale of the property. The Housing Court ultimately decided against the former owners and entered summary judgment in favor of the foreclosing mortgagee. Almost a year after the Southeast Housing Court entered summary judgment in favor of the foreclosing mortgagee, the former owners filed a motion for reconsideration of the Court’s Judgment attempting to assert another counterclaim stemming from the foreclosure action. Essentially, the former owners claimed that the foreclosing mortgagee failed to provide notice to the municipal water department once the foreclosing mortgagee conveyed the property to itself.

G.L. c. 244, §15A requires a foreclosing mortgagee to provide notice to any and all residential tenants, the tax assessor or collector of the municipality, and the department which handles water or sewer services for the municipality. The foreclosing mortgagee did not send notice to residential tenants as none existed given that the property was occupied by the former owners. The foreclosing mortgagee provided notice to the tax collector of the municipality. However, the foreclosing mortgagee did not provide notice to the municipal water department as is required by §15A. However, the fact that the foreclosing mortgagee did not provide notice to the municipal water department was available to the former owners at the time they filed their answer and counterclaim. Consequently, the Southeast Housing Court ruled that the former owners are precluded from raising their claim under §15A, as that claim should have been brought at the time they filed their answer and counterclaim. Res Judicata requires that all claims arising out of a transaction or occurrence be brought in the same action so as to avoid multiple actions arising from the same transaction or occurrence

This result is important for foreclosing mortgagees looking for finality to their summary process proceeding. Without it, former owners could prolong the summary process proceeding ad infinitum without any finality. This ruling requires former owners to assert any and all counterclaims that are or should be available at the time former owners file their answer and counterclaim to a summary process summons and complaint.

If you have questions or would like assistance from an experienced attorney, please call Wynn & Wynn, P.C. 1.800.852.5211 or request a free consultation.

¹The Massachusetts Appeals Court in Kiah v. Carpenter ruled that the failure to comply with §15A does not invalidate a foreclosure as the requirement contained in §15A is a post-foreclosure requirement which does not impact the mortgagee/mortgagor relationship. In fact, the Court stated that the mortgagor is not in the protected class contained in §15A. Ultimately, the Court ruled that §15A is not part of the power of sale, G.L. c. 183, §21, or the applicable foreclosure statutes. However, since the Kiah v. Carpenter case, another case deciding §15A was appealed to the Appeals Court which was immediately granted certiorari by the Supreme Judicial Court of Massachusetts. As such, I am anxiously awaiting the SJC’s ruling on whether failure to comply with §15A invalidates a foreclosure.

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Massachusetts “Recreational Use” statute and Waiver of Liability Forms http://www.wynnandwynn.com/blog/massachusetts-recreational-use-statute-and-waiver-of-liability-forms/ http://www.wynnandwynn.com/blog/massachusetts-recreational-use-statute-and-waiver-of-liability-forms/#comments Mon, 31 Oct 2016 14:52:31 +0000 http://www.wynnandwynn.com/?p=2631 By: Peter Thomas| Law Clerk Ever thought about learning to rock climb or, even, skydive? Chances are good that before you ever get a foot off the ground you’ll be required to sign a release or waiver of liability form. A release or waiver from liability is a proactive measure designed to protect the owner/operator […]

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By: Peter Thomas| Law Clerk

Massachusetts-Recreational-UseEver thought about learning to rock climb or, even, skydive? Chances are good that before you ever get a foot off the ground you’ll be required to sign a release or waiver of liability form. A release or waiver from liability is a proactive measure designed to protect the owner/operator from being held accountable should you become injured in course of your participation. While these activities clearly involve a heightened element of risk and an operator’s desire to protect themselves is understandable, if not expected, release or waiver of liability forms have become a standard condition for participation in many ordinary recreational activities. These forms have become so universal that signing one has become a matter of routine for most of us, without much thought as to what we are actually agreeing to or the scope of their applicability.

If your child plays sports or participates in after school activities, you’ve very likely already been required to sign one. Parental waivers on behalf of a minor child are valid and enforceable in Massachusetts. Sharon v. City of Newton, 437 Mass. 99,109 (2002). When you sign a release or waiver of liability form, on behalf of yourself or your child, you are agreeing, in exchange for your/child’s allowed participation, that you will voluntarily forfeit your/their right to recovery should you or your child suffer injury, even if the injury was a result of the operator’s own negligence. Simply put, by signing the form, the owner/operator is being released from liability for injuries done to you or your children no matter how careless or negligent.
For the waiver to be enforceable it must contain clear and comprehensive language. However, failure to read or to understand the contents of a release does not avoid its effects. Only waivers obtained by fraud, duress, or deceit or those that offend public policy will be deemed unenforceable. Lee v. Allied Sports Assocs., 349 Mass. 544,550 (1965). It is been deemed to be against public policy to enforce contracts releasing parties from their own gross negligence.

As such, Massachusetts courts will not enforce a waiver if the injuries sustained were caused by gross negligence. Zavras v. Capeway Rovers Motorcycle Club, Inc., 44 Mass. App. Ct. 17,18-19 (1997). However, gross negligence “is substantially and appreciably higher in magnitude than ordinary negligence.” While proving gross negligence can be substantially more difficult than proving simple negligence, it may offer an avenue of recovery.

Furthermore, the Massachusetts “recreational use” statute grants an exemption from liability to land owners who allow their property to be used recreational public use. This includes both outdoor and indoor, publicly and privately owned lands and can include activities such as hiking, biking, swimming, hunting, fishing and snowmobiling. The purpose of the statute is to encourage landowners to permit broad, public, free use of land for recreational purposes by limiting their obligations to lawful visitors. The property owner will be exempt from ordinary negligence where: (1) a defendant has an interest in land; (2) the plaintiff was injured when engaged in a recreational activity on that land; and (3) the defendant did not impose a charge or fee for the injured plaintiff’s use of the land. Amaral v. Seekonk Grand Prix Corp., 89 Mass App. Ct. 439 (2003).

This may create an issue if an adult or child is injured while partaking in a recreational activity and did not pay a fee to use the land; there may be no way to recover damages from the landowner.

The statute does not provide the landowner blanket immunity from liability, a landowner may be held liable if they engaged in conduct that was willful, wanton, or reckless as to the safety of users. “Willful, wanton, or reckless conduct,” within the meaning of recreational use statute involves an intentional or unreasonable disregard of a risk that presents a high degree of probability that substantial harm will result to another. Patterson v. Christ Church in City of Boston, 85 Mass. App. Ct. 157 (2014).

It is important to thoroughly understand a release or waiver prior to signing it. Consider inspecting the premises where the sport or recreation is taking place, and speak to the staff involved to better understand the information prior to signing a release.

In the unfortunate case that you or your child is injured, the attorneys at Wynn &Wynn, P.C. can help identify if you have an unenforceable release and determine if you have a potential personal injury claim. Call our office today at 1-800-852-5211 or request your free consultation.

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I Have Been in an Automobile Accident, Do I need an Attorney? http://www.wynnandwynn.com/blog/i-have-been-in-an-automobile-accident-do-i-need-an-attorney/ http://www.wynnandwynn.com/blog/i-have-been-in-an-automobile-accident-do-i-need-an-attorney/#comments Mon, 17 Oct 2016 14:30:28 +0000 http://www.wynnandwynn.com/?p=2627 By: Attorney Kevin J. O’Malley| Partner Auto accidents, even relatively minor ones, are traumatic. Loss of transportation, personal injury, lost time from work, filling out accident reports, dealing with insurance adjusters … What should you do if you are in an automobile accident? Be sure to document as much as you possibly can. Get the […]

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By: Attorney Kevin J. O’Malley| Partner

”Massachusetts-Car-Accident-Attorney"Auto accidents, even relatively minor ones, are traumatic. Loss of transportation, personal injury, lost time from work, filling out accident reports, dealing with insurance adjusters …

What should you do if you are in an automobile accident? Be sure to document as much as you possibly can. Get the name, address and insurance carrier of all vehicles involved in the accident. Get photographs of any damage. If possible, get the names and addresses of any eye witnesses. Be sure to get copies of police reports and never admit fault, even if you think you might be at fault.

If you think you have been injured, you should be transported by ambulance from the scene to ensure that your health and well-being are protected. After being seen in the emergency room, make sure to get copies of any diagnostic tests that are done (x-rays, blood work, CT scans…). Be sure to follow-up with your primary care physician and with specialists to the extent needed. Document all of your medical treatment and keep copies of all medical bills. Keep track of all lost wages and other related expenses.

Remember that the insurance company is not your friend. They are in business to collect premiums and not pay claims. While you have certain obligations to cooperate with your insurance carrier, you also have the right to protect your interests.

To decide whether it makes sense to consult an attorney regarding an automobile accident, consider the following:

A. Did you suffer bodily injury?

B. Were you a passenger in someone else’s automobile?

If you answered yes to questions A and B, you should definitely consult an attorney. You may be able to recover your medical expenses, lost wages and for pain and suffering. It is best to consult an attorney sooner rather than later so that you can be sure that your rights are fully protected.

C. Were you the operator of one of the vehicles involved in the accident?

If you answered yes to questions A and C, you probably should consult an attorney. Again, sooner rather than later. The apportionment of fault in a given accident may limit your ability to recover damages such as medical bills, lost wages and pain and suffering. The sooner you consult an attorney, the better chance there is that your rights, under the circumstances, will be fully protected.

D. Were passengers in your vehicle or other operators or passengers injured as a result of the accident?

If you answered yes to D, again it is wise to consult an attorney. You want to be sure there is sufficient insurance coverage and be in the best possible position vis a vis other operators.

E. I did not suffer bodily injury, but my vehicle suffered damage or is a total loss.

If you answered yes to E, this is more of a gray area as to whether it is cost effective to hire an attorney. Keep in mind that many insurance companies will not be fair with you. You may need at least some guidance from an attorney to ensure that their insurance company meets its obligation in settling the property damage claim.

If you have been in an automobile accident, the obvious priority is to make sure that you are returned to full health as soon as possible. The second priority is to document the details of the accident. The next thing to do is to evaluate the scenarios above and, where indicated, consult an attorney for advice. Again, the insurance companies have in-house appraisers, adjusters, and attorneys. They are looking out for their best interests, not yours.

We are here to help protect your rights, if you have been involved in an automobile accident, please call the attorneys at Wynn & Wynn, P.C. at 1.800.852.5211 or request a free consultation.

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