[{"_1":2,"_111":-5,"_112":-5},"loaderData",{"_3":4,"_26":27},"root",{"_5":6,"_17":10,"_18":19,"_20":21,"_22":10,"_23":-5,"_24":-5,"_25":10},"user",{"_7":8,"_9":10,"_11":10,"_12":-5,"_13":-5,"_14":15,"_16":-5},"roles",[],"isAuthenticated",false,"isPremium","planName","subscriptionStatus","featureFlags",{},"insightsBudget","isDevelopmentHost","userPreferences",{},"recaptchaSiteKey","6LcvOJcUAAAAAHsB-gPGfGktcRlKpH7OTIU_dMTD","isImpersonating","impersonation","affiliateStatus","isFreedomPortal","routes/v2/article/layout",{"_28":29,"_30":31},"notFound",true,"relatedArticles",[32,75,87,99],{"_33":34,"_35":36,"_37":38,"_39":40,"_41":42,"_43":44,"_45":46,"_47":48,"_49":50,"_51":52,"_53":54,"_55":56,"_57":58,"_59":60,"_61":62,"_63":64,"_65":66,"_67":68,"_69":70,"_71":72,"_73":56,"_74":56},"mediaId",6124364,"mediaKeyId","2684192-ec4d7ff6afa2d825bd10a95d073dbaa1","parentId",2684192,"title","Appeals court weighs contract-versus-tort framing in embezzlement claim by condominium investor","audioSeconds",2041,"startMs",6919000,"endMs",8960000,"viewUrl","/Search/View?dp=1&key=2684192-ec4d7ff6afa2d825bd10a95d073dbaa1&start=6919&end=8960","thumbnailUrl","https://assets.pipeline.soar.com/2684192-ec4d7ff6afa2d825bd10a95d073dbaa1/thumbnail_6919000.jpg","articleUrl","/articles/6124364/Massachusetts/Appeals-court-weighs-contract-versus-tort-framing-in-embezzlement-claim-by-condominium-investor","mediaUrl","https://secure.pipeline.soar.com/6124364-52276fd387448b21e6f18ca5b523c67f/orig.mp4?Expires=1773622625&Signature=RSr4W5ZBtXagGFooRSgnwWkY7QFXfXWA9m5vy8Yaz-dhnzr93E0maEFtlFq4h07Nod~Lxx5B79L6i38UXAS6xO06Rt7iUEntjokgt7zBTnXzu~lj8try8ix3AsknOgp48IO329vA73Mx-79frKjFFTf2Zsa6yMEMqcJ51EYLaZ3LxDDyqtham1X4gilGtewQsr3G18ZsAOmsD84xTxyj8zqPJi8LMlPwA7EcM2ZyJGj9eGJdtbq3LnyINUwR-h5DbXFoUSsPrQmui7CpB6LKr37JJy4ERVpIPOT5chSotujpmoxIgtjpZZHeKWGeDfrNAG6OQmeQ3bLG0pdOdPzZIA__&Key-Pair-Id=KUT5TJCACFTXG","author","","date","2025-03-18T16:41:14Z","article","The Appeals Court heard argument on March 18, 2025, in 24P492, Cranberry Commons Condominium LLC v. Barbagallo and others, a dispute about whether alleged embezzlement by a manager constitutes a breach of the operating agreement, an implied covenant violation, or an independent tort for conversion, and the resulting statute-of-limitations consequences.

Plaintiff counsel Richard Joyce told the panel that the facts are undisputed: the operating agreement named Peter Barbagallo as manager, and \"it’s undisputed that he took the money. 100% everybody with the facts are agreed. That money was taken from the company and put in his personal pocket for his benefit.\" Joyce asserted those acts violated express provisions of the operating agreement (Section 3.03 — manager duties) and the implied covenant of good faith and fair dealing; he also noted a default was entered against the defendant and damages were stipulated.

Defense counsel Mark Kornitsky argued the trial court correctly treated the claims as primarily tort-based and applied the three-year statute of limitations for torts. Kornitsky cited controlling authority that where the \"gist of the action\" is conversion or other tortious conduct, the tort limitations period applies even if contract language is invoked. He told the panel \"It's the tort case. He stole.\"

Why it matters: the appeal turns on whether the manager's alleged misconduct is remediable under contract law (which could carry a different statute of limitations and contractual remedies) or is a tort where conversion and related claims govern limitations and remedies. The panel examined the operating agreement's express duties (including a manager's duty to manage the LLC's business and maintain property), whether the implied covenant can supply terms beyond the written agreement, and whether the plaintiffs' claims are time-barred as torts.

The record includes an operating agreement provision giving the manager power to \"employ, retain, or appoint\" persons and to manage business affairs; plaintiff counsel emphasized that failing to pay contractors and diverting funds violated that provision and the covenant of good faith. Defense counsel pointed to precedent (including Woodcock v. American Investment Co.) and argued that the same operative facts underlie the tort and contract claims so the tort limitations period controls.

The panel also heard argument about procedural posture: counsel for plaintiffs said a default remained in place and damages had been stipulated to, while defense counsel urged that the judge correctly granted judgment on statute-of-limitations grounds. The case was submitted at the close of argument and will be decided by opinion that clarifies whether the plaintiffs may pursue contract-based remedies or are limited by tort law.","mediaType","Video","parentTitle","Oral Arguments, March 18, 2025, Massing, Neyman, Wood, JJ., presiding","oneSentenceSummary","The panel heard arguments about whether claims that a manager diverted LLC funds are contract breaches under an operating agreement or torts for conversion, and whether the tort statute of limitations bars part of plaintiff's recovery.","taxTitle","Judicial - Appeals Court Oral Arguments, Judicial, Massachusetts","taxId",66294,"location","Massachusetts","headline","shortSummary",{"_33":76,"_35":36,"_37":38,"_39":77,"_41":78,"_43":79,"_45":80,"_47":81,"_49":82,"_51":83,"_53":84,"_55":56,"_57":58,"_59":85,"_61":62,"_63":64,"_65":86,"_67":68,"_69":70,"_71":72,"_73":56,"_74":56},6124368,"Appeals court hears informed-consent and causation dispute after knee-replacement injury",1490,4348000,5838000,"/Search/View?dp=1&key=2684192-ec4d7ff6afa2d825bd10a95d073dbaa1&start=4348&end=5838","https://assets.pipeline.soar.com/2684192-ec4d7ff6afa2d825bd10a95d073dbaa1/thumbnail_4348000.jpg","/articles/6124368/Massachusetts/Appeals-court-hears-informed-consent-and-causation-dispute-after-knee-replacement-injury","https://secure.pipeline.soar.com/6124368-16a9e84376149e0e6a7b07e8fd06f510/orig.mp4?Expires=1773622625&Signature=LQ-KRv5cey06D5ifMfU-pes6hbaLOp18eMg15T-afofKWTpzXM7I7-1gjK~SRaXB7uALG3Q-aL0ODc0elKADHFDBi6rre1Z-g0HCGl2GS5gqMKgZ~fBfvlW8xyoI6CVdRam-EQJTaSHvZp9qz~bAcdvV8LwW~87DDcX05Z~Lqm4hlC3~v0WVk4Tx9BHGrunmZoIC~KgVEBPN5FxJVpy11ch572vq-XRin-l6otolbR~LGKtQzaLmUd80RhAhL6mc7wxSf8yiDNdBAsZgMgnYdEGIAu4AURudKgNPCg8iolYjAdhDvnEny7ie1LP5P-aQX8s83qgsucCBdszt7BIAgQ__&Key-Pair-Id=KUT5TJCACFTXG","The Appeals Court heard argument on March 18, 2025, in 24P750, Hennessy v. Cape Cod Orthopedics and Dr. Kinkade, a medical-malpractice appeal centered on alleged lack of meaningful informed consent and disputed causation following a total knee arthroplasty.

Appellant counsel Kevin Considine explained that Francis Hennessy, a long-serving police officer, underwent a right total knee replacement and subsequently developed permanent peroneal nerve palsy and foot drop. Considine said the risk of permanent nerve injury, while listed in written materials, was not explained to the plaintiff in a manner that would enable an informed decision: \"It was disclosed, but it wasn't disclosed in a meaningful way,\" he told the panel.

Defense counsel Sandra Wysocki replied that the record contains multiple disclosures and testimony that nerve injury was discussed before surgery: she told the court \"he did have the disclosure. He did know about the risk of nerve injury,\" and stressed that prior treatments, records and signed consent forms undercut the plaintiff's summary-judgment argument.

Why it matters: the appeal raises two distinct legal questions — whether a jury must hear the issue of whether the physician's disclosure was reasonable under Massachusetts informed-consent law (Harnish/Canterbury standards), and whether expert testimony is required to prove causation and standard-of-care on the malpractice theory the plaintiff is pursuing. The trial court granted summary judgment for defendants on the grounds that the plaintiff had not produced necessary expert proof, and the appeal contests that ruling.

The panel pressed both sides on deposition testimony discrepancies: the judges noted the plaintiff's own deposition statements (including that he had signed a consent form and had treatment conversations earlier) and probed whether the plaintiff’s later claims that he did not appreciate the specific risk rendered the matter one for jurors. Considine said the question of whether the disclosure was given in a \"reasonable manner to a competent adult\" is a jury question and that an expert is required only when the negligence asserted falls outside ordinary lay understanding. Wysocki countered that causation issues (linking the surgery to foot drop) and questions about clinical standard of care cannot be resolved by a lay jury absent expert testimony.

No decision was announced; the case was taken as submitted. The panel’s ruling will determine whether the plaintiff may proceed to trial on his informed-consent claim and whether expert evidence is required on the factual causation asserted.","Counsel disputed on appeal whether a surgeon adequately disclosed the risk of permanent nerve damage before a knee replacement that left the patient with foot drop, and whether the plaintiff needs expert proof on standard-of-care and causation questions.",{"_33":88,"_35":36,"_37":38,"_39":89,"_41":90,"_43":91,"_45":92,"_47":93,"_49":94,"_51":95,"_53":96,"_55":56,"_57":58,"_59":97,"_61":62,"_63":64,"_65":98,"_67":68,"_69":70,"_71":72,"_73":56,"_74":56},6124373,"Appeals court hears dispute over reference letters and alleged interference in public-construction bidding",971,2448000,3419000,"/Search/View?dp=1&key=2684192-ec4d7ff6afa2d825bd10a95d073dbaa1&start=2448&end=3419","https://assets.pipeline.soar.com/2684192-ec4d7ff6afa2d825bd10a95d073dbaa1/thumbnail_2448000.jpg","/articles/6124373/Massachusetts/Appeals-court-hears-dispute-over-reference-letters-and-alleged-interference-in-public-construction-bidding","https://secure.pipeline.soar.com/6124373-194d7d618a71fa2a92ea6c2b92f81277/orig.mp4?Expires=1773622625&Signature=VZhBMxOSGeXYHakwS~oFbFZq5DpCCLxVFDN1KJXIYj3jZnSKVYP8HFn9G2BE5qm6qjOPsSxQXGn68o3lWLM476oS6N0Qv2ZTGEav4ZYTakxIpVwgH6vOfpkr2WRcRatugRqCDAlLVnfcFcxRoXFddLs5wvZ6b-HOQPJKXRzu~WYjrGBZ3DG~L8umNnheb~LWzBZGULVnPdcpx5BkK8DxhZn6FTCbkF1ecliZLAPnnHlTOGk3hFgYufVedDJDWYjiYLWIB4Zi~AGOmuC7IdPOuf53Ww0kYa7EJ1C4WCa48aZ3jtM8ZH9I9HcKp~DoactQXFhwf~rYe48yd2Ow36hq-A__&Key-Pair-Id=KUT5TJCACFTXG","The Appeals Court heard argument on March 18, 2025, in 24P627, BC Construction Company v. Johnson Roberts Associates, a dispute arising from architect reference letters used by municipalities in evaluating BC Construction’s bids for public projects.

Plaintiff BC Construction, through counsel Kevin Polanski, argued that written and oral criticisms by Johnson Roberts amounted to improper interference and defamatory statements that were motivated by ill will. Polanski told the panel the architect’s emails and subsequent letters characterized BC Construction as \"one of the worst projects\" and asserted that \"many of these projects require litigation to complete,\" language his client says was materially false and caused owners to disqualify BC from public work.

Defense counsel Steven Orlando replied that Johnson Roberts provided relevant information for a municipality choosing a responsible bidder under Chapter 149 public procurement rules and that their references were based on inquiries of project participants. Orlando told the court the architect's role is to advise owners and \"to make sure that taxpayer dollars are being spent wisely,\" and maintained the statements were either opinion or supported by reference checks.

Why it matters: the appeal raises tension between (1) protections for candid professional references given to owners of public projects and (2) the risk that those references may be used to exclude a bidder for improper reasons. The panel examined record evidence cited by each side: emails, deposition testimony, the December 2019 JRA recommendation to a town, a subsequent Cambridge review, and the question whether unfavorable material was withheld or fabricated.

Counsel debated the scope and meaning of particular phrases in the reference letters and whether the architect withheld favorable references (for example, a Norfolk project) or improperly emphasized litigation history. Polanski emphasized testimony he said showed a town’s own reference checks “pretty much confirmed” negative views Johnson Roberts reported. Orlando countered that multiple references independently told a similar story of disputes, aggressive claims, or claims that required dispute resolution, and that some municipalities later awarded BC projects because more recent reviews were favorable.

The panel questioned both sides about the use of expert testimony to define industry norms for conducting reference checks, the evidentiary sufficiency of deposition evidence, and whether the plaintiff had proved ill will or deceitful means rather than ordinary, relevant professional critique. The parties also identified record passages they said supported their competing narratives.

No decision was announced from the bench; Justice Greg Massing took the case as submitted. The court’s opinion will decide whether the record permits claims for intentional interference or defamation grounded on these professional references.","An appellate panel heard competing accounts over whether architect Johnson Roberts gave improper, pretextual references that led municipalities to disqualify BC Construction from public projects; plaintiff says statements show ill will and caused economic harm, defendant says the references were relevant to owners evaluating responsible bidders.",{"_33":100,"_35":36,"_37":38,"_39":101,"_41":102,"_43":103,"_45":104,"_47":105,"_49":106,"_51":107,"_53":108,"_55":56,"_57":58,"_59":109,"_61":62,"_63":64,"_65":110,"_67":68,"_69":70,"_71":72,"_73":56,"_74":56},6124377,"Appeals court hears challenge to judge's grant of new trial in rear-end injury case",2070,399000,2469000,"/Search/View?dp=1&key=2684192-ec4d7ff6afa2d825bd10a95d073dbaa1&start=399&end=2469","https://assets.pipeline.soar.com/2684192-ec4d7ff6afa2d825bd10a95d073dbaa1/thumbnail_399000.jpg","/articles/6124377/Massachusetts/Appeals-court-hears-challenge-to-judges-grant-of-new-trial-in-rear-end-injury-case","https://secure.pipeline.soar.com/6124377-723f64f58f540b6ad88e8f6588823b78/orig.mp4?Expires=1773622625&Signature=ELLjRJONXT7seLO2RJKEc2uPRhcyaqoiocWCL6pIrS87oTg4LLgkqN1N1qhKpMAjDmiSZQJcTL76in175d~RUyEHtOLnCYixIPipOdxTMp01SebucGwevLqNv2kIrAd90Tv6BCXZj6HP5eyZ1S2l~PrsSV-zMC1GrT-QroKDvqe2R6nBFthbgVDqbyd8epQrtUUAOD13pordSU3vKsofutEh3piSnmcqoWb~J~6-izNe9pk37vRTnuXa6nlI92z4D9y-qN6ATRbKAHMa4kaScv0JTyhg1oFN~U-USGtAkutjxCNI~9jGg6fTDtVL7dAjYSIOT70zCj2Cn33osavdjQ__&Key-Pair-Id=KUT5TJCACFTXG","An Appeals Court panel convened in the Armstrong Courtroom on March 18, 2025, heard argument in 24P483, Tresch v. Hansen, a civil appeal that asks whether a trial judge erred by granting a new trial after a jury verdict in a rear-end collision case.

The issue on appeal, as framed by appellant counsel Jessica Savino, is whether the judge \"impermissibly shifted the burden of proof onto the defendant\" when granting a new trial; Savino asked the court to reverse because, she said, the plaintiffs retain the burden to prove injury and causation by a preponderance of the evidence. Appellee counsel Gregory Conley countered that the trial judge, Judge Wilkins, \"was simply commenting on the state of the evidence\" and that his view that no reasonable juror could find the absence of injury was a permissible exercise of discretion.

Why it matters: the appeal centers on two intertwined legal questions — the proper standard on a motion for a new trial (whether the judge may reweigh credibility and evidence) and whether the record contained sufficient objective evidence of injury so that a reasonable jury could have found causation. The panel repeatedly returned to the standard of review for alleged abuse of discretion and the narrow circumstances in which an appellate court may overturn a trial judge’s grant of a new trial.

During argument, Savino told the panel that while the defendant stipulated to duty and breach, \"this did not excuse the plaintiffs from needing to prove the remaining two elements, namely that there was an injury and that the injury was actually caused by the defendant's negligence.\" She urged the court that the judge effectively required the defense to produce evidence proving the negative — that there was no injury — rather than leaving that assessment to a jury weighing the plaintiffs’ proof.

Conley responded by pointing to treating and testifying physicians and to documentary records he said supported the treating clinicians’ conclusions. He emphasized that defense expert Dr. Sarris reviewed the records and nevertheless described the plaintiffs’ injuries as soft-tissue injuries that resolved, and that the trial judge relied on the totality of evidence in concluding the verdict was unreasonable. Conley argued the judge was applying a reasonableness standard to the weight of the evidence, not flipping the burden of proof.

The panel pressed both sides on discrete record references — Savino cited the trial court transcript and written decision lines where Judge Wilkins asked whether \"there's any evidence from which a reasonable jury could find there was no injury at all,\" and Conley pointed to testimony and medical records he said supported the judge's assessment. The parties debated whether the expert testimony relied on subjective plaintiff complaints (which defense counsel stressed could be discounted by a jury) or on corroborating objective findings and subsequent surgery (which appellee counsel highlighted).

No decision was announced. Justice Greg Massing, presiding, marked the case submitted at the close of argument. The panel’s eventual opinion will resolve whether Judge Wilkins’ order granting a new trial exceeded his discretion or reflected a permissible reweighing of the record.","An appellate panel heard argument over whether a trial judge improperly substituted his judgment for a jury's when he granted a new trial after a verdict for plaintiffs in a rear-end collision case, with counsel disputing whether the judge shifted the burden of proof or reasonably weighed the evidence.","actionData","errors"]

Article not found

Appeals court weighs contract-versus-tort framing in embezzlement claim by condominium investor

Appeals court hears informed-consent and causation dispute after knee-replacement injury

Appeals court hears dispute over reference letters and alleged interference in public-construction bidding

Appeals court hears challenge to judge's grant of new trial in rear-end injury case