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When litigation involves a claim of title to real estate, the claimant may obtain judicial approval to record a lis pendens against the property, notifying potential purchasers that litigation affecting the property is pending.  See Massachusetts G.L. c. 184, §15.  Real estate subject to a lis pendens may be virtually unmarketable.  While a lis pendens serves an important purpose when there is a genuine dispute as to title, when the underlying claim is weak or frivolous the recording of a lis pendens unjustly restricts the owner’s right to sell the property.  To protect owners from lis pendens based on frivolous claims, G.L. c. 184, §15(c) allows an owner to file a special motion to dismiss the underlying action, thereby also dissolving the lis pendens.

Under section 15(c), a special motion to dismiss,

shall be granted if the court finds that the action or claim is frivolous because (1) it is devoid of any reasonable factual support; or (2) it is devoid of any arguable basis in law; or (3) the action or claim is subject to dismissal based on a valid legal defense such as the statute of frauds. In ruling on the special motion to dismiss the court shall consider verified pleadings and affidavits, if any, meeting the requirements of the Massachusetts rules of civil procedure.

(Emphasis added).  See also Galipault v. Wash Rock Investments, LLC, 65 Mass. App. Ct. 73, 81 (2005).  As the statute’s use of the disjunctive “or” indicates, a court must grant the special motion and dismiss the plaintiff’s complaint if it is frivolous for any of the three listed reasons.

A court hearing a special motion to dismiss applies essentially the same standard as governs summary judgment.  Donius v. Milligan, 2016 WL 3926577, *3 (Mass. Land Ct. 7/25/16); St. John’s Holdings, LLC v. Two Electronics, LLC, 2016 WL 1460477, *2 (Mass. Land Ct. 4/14/16); Gould v. Lancaster Technology Park Limited Partnership, 2006 WL 700884, *1 (Mass. Super. 2/17/06), aff’d 69 Mass. App. Ct. 1109 (2007); Waters v. Cook, 2005 WL 2864806, *3 (Mass. Land Ct. 11/2/05).  In St. John’s, the Court stated,

The standard of review for a special motion to dismiss is the functional equivalent of a motion for summary judgment; it requires the court to assess the plaintiff’s claim in light of the record before the court. The court does not weigh evidence, assess credibility, or find facts; it may only consider undisputed material facts and apply them to the law. In viewing the factual record presented as part of the motion, the court is to draw “all logically permissible inferences” from the facts in favor of the non-moving party. The judge must consider the verified pleadings and affidavits in ruling on the special motion and, if the motion is granted, award costs and attorney’s fees to the aggrieved party.

2016 WL 1460477, at *2 (citations omitted).  In accordance with the summary judgment standard, a party filing a special motion to dismiss, “in a case in which the opposing party will have the burden of proof at trial is entitled to [dismissal] if he demonstrates … by reference to material described in Mass.R.Civ.P. 56(c), unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving an essential element of that party’s case.” Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991).

Even without concluding that the underlying claim lacks reasonable factual support, arguable basis in law or is subject to a valid legal defense, a court may grant a special motion to dismiss where the plaintiff’s complaint does not, “include a certification by the claimant made under the penalties of perjury that the complainant has read the complaint, that the facts stated therein are true and that no material facts have been omitted therefrom.” G.L. c. 184, §15(b) (emphasis added).  In DeCroteau v. DeCroteau, 90 Mass. App. Ct. 903 (2016), the Massachusetts Appeals Court stated,

The complaint must include a certification by the claimant made under the penalties of perjury that “no material facts have been omitted therefrom.” No such certification was made in the instant case. This requirement is not one of mere form. In view of the serious consequences that may arise from the recording of a memorandum of lis pendens, strict compliance with the statutory prerequisites is required. The omission of the certification constituted a material deficiency. Accordingly, the orders denying the plaintiff’s motion for a preliminary injunction and motion for approval of a memorandum of lis pendens are affirmed.

Id. at 906. (Emphasis added, citations omitted).  See also Haley v. Welch, 84 Mass. App. Ct. 1104, 2013 WL 3820680, *2 (7/25/13) (unpublished Rule 1:28 opinion) (affirming trial judge’s refusal to allow late or retroactive verification where complaint, as filed, failed to certify that no material facts had been omitted).

Moreover, even where the required certification is made, a court should grant a special motion to dismiss where the complaint actually omits material facts. “A party’s failure to include all material facts may result in the dismissal of that party’s claims where the omitted facts establish that those claims are devoid of reasonable factual support or arguable basis in law.” McMann v. McGowan, 71 Mass. App. Ct. 513, 519-20 (2008).  “A material fact is one that is ‘significant or essential to the issue or matter at hand.’ ” Id. at 520, quoting Black’s Law Dictionary 629 (8^th ed. 2004).  This makes sense because the lis pendens statute assumes that a court endorsing a lis pendens has considered all relevant and material facts.

Accordingly, where a lis pendens is recorded in connection with claims which arguably are frivolous, or where the compliant fails to certify that it contains all material facts or in fact omits material facts, the property owner should consider filing a special motion to dismiss.

 

Updated August 3, 2020. 

In Iannacchino v. Ford Motor Company, 451 Mass. 623 (2008), the Massachusetts Supreme Judicial Court, refined the standard for granting a motion to dismiss.  It retired the familiar directive that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief,” Nader v. Citron, 372 Mass. 96, 98 (1977) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)), instead adopting a new federal approach under which a complaint must contain, “factual ‘allegations plausibly suggesting (not merely consistent with)’ an entitlement to relief.” Iannacchino, 451 Mass. at 636, quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 1966, 167 L.Ed.2d 929 (2007).  See also Galiastro v. Mortgage Electronic Registration Systems, Inc., 467 Mass. 160, 165 (2014); Lopez v. Com., 463 Mass. 696, 700-01 (2012).

While the “plausibility” requirement is easily stated, its practical application is less obvious than the prior “prove no set of facts” standard.  Indeed, “the precise parameters of the plausibility standard are still a work in progress.”  Gianfrancesco v. Town of Wrentham, 712 F.3d 634, 638-39 (1st Cir. 2013) (internal quotation marks omitted).  Just how much factual detail is required to make a claim plausible?  What separates a valid factual allegation from a mere legal conclusion insufficient to withstand a motion to dismiss?  This article considers those questions, among others.  Because Iannacchino adopted the federal standard, and because Massachusetts courts interpreting the Massachusetts Rules of Civil Procedure routinely look to, “the construction given to the cognate Federal rules,” Chavoor v. Lewis, 383 Mass. 801, 806 n.5 (1981), I refer to both federal and Massachusetts case law.

In order to determine whether a complaint states a plausible claim for relief, which will survive a motion to dismiss, a court must apply a two-stage test.  First, although all factual allegations contained in the complaint must be assumed to be true for purposes of a motion to dismiss, this tenet does not apply to legal conclusions.  Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).  Therefore, the court must begin by, “identifying the allegations of the complaint that are not entitled to the assumption of truth” because they are merely legal conclusions.  Id. at 1951.  Second, the court must, “consider the [remaining] factual allegations in [the] complaint to determine if they plausibly suggest an entitlement to relief.”  Id.  See also Cardigan Mountain School v. New Hampshire Ins. Co., 787 F.3d 82, 84 (1^st Cir. 2015).

Distinguishing factual allegations from mere legal conclusions.

A court determining whether a complaint states a plausible claim to relief must ignore allegations which are not factual but, instead, amount to mere legal conclusions.  Such conclusory allegations include both rote recitation of the elements of a cause of action and allegations which, while clothed as factual statements, are really just unsupported speculation by the plaintiff.  In A.G. ex rel. Maddox v. v. Elsevier, Inc., 732 F.3d 77 (1st Cir. 2013), the Court of Appeals for the First Circuit explained,

We follow this unbroken line of cases and hold that the rote recital of the elements of a cause of action is not enough, by itself, to nudge a case past the plausibility threshold.

This remains true even where, as here, plaintiffs attempt to camouflage conclusory statements as allegations of fact. When allegations, though disguised as factual, are so threadbare that they omit any meaningful factual content, we will treat them as what they are: naked conclusions.

Id. at 80-81, citing Iqbal, 129 S.Ct. at 1949; Artuso v. Vertex Pharm., Inc., 637 F.3d 1, 9 (1st Cir.2011) (explaining that even though an averment may be couched as a factual allegation, it can be “so subjective that it fails to cross ‘the line between the conclusory and the factual’ ”).  Similarly the court in Rodriguez-Vives v. Puerto Rico Firefighters Corps of Puerto Rico, 743 F.3d 278, 286 (1st Cir. 2014) stated,

A conclusory allegation, however, is one which simply asserts a legal conclusion, such as “I was retaliated against,” not a specific factual allegation, such as “my supervisor threw a book at me,” that merely lacks some surrounding context. We have held that some factual allegations may be so “threadbare” that they are in essence conclusory even if they include more than an assertion that an element of a cause of action was satisfied. But this is only the case where the bareness of the factual allegations makes clear that the plaintiff is merely speculating about the fact alleged and therefore has not shown that it is plausible that the allegation is true.

Id. at 286. (Internal citations omitted).

The distinction between factual allegations and legal conclusions was discussed in detail in Cardigan Mountain School, where the issue was whether the plaintiff had alleged a plausible claim that the defendant insurer had issued an insurance policy to the plaintiff school.  The court looked to the Supreme Court’s opinions in Twombly and Iqbal for guidance.  In Iqbal, the plaintiff, who had been arrested and detained after the 9/11 attacks but was eventually released, brought civil rights claims against federal officials including John Ashcroft, who had been the United States Attorney General at the time, and Robert Mueller, then the Director of the FBI.  The court found that although the complaint contained some factual assertions which were entitled to an assumption of truth, it was also rife with legal conclusions.

The Supreme Court explained that the complaint’s “bald allegations” that Ashcroft and Mueller were personally involved in unconstitutional conduct were “conclusory” and thus should have been disregarded by the district court. Id. at 681, 129 S.Ct. 1937. In particular, the Supreme Court held that statements that Ashcroft and Mueller “ ‘knew of, condoned, and willfully and maliciously agreed to subject [the plaintiff]’ to harsh conditions of confinement” based on his “ ‘religion, race, and/or national origin’ ” were not factual allegations that must be taken as true. Id. at 680, 129 S.Ct. 1937. And the Court ruled the same with respect to Iqbal’s allegations that “Ashcroft was the ‘principal architect’ ” of the policy and that “Mueller was ‘instrumental’ in adopting and executing it.” Id. at 680–81, 129 S.Ct. 1937.

These sorts of allegations, the Court explained, were “nothing more than a ‘formulaic recitation of the elements’ of a constitutional discrimination claim.” Id. at 681, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). In contrast, Iqbal did credit as factual those allegations in the complaint that made reference to specific events. See id. (Crediting allegations including “that ‘the [FBI], under the direction of Defendant MUELLER, arrested and detained thousands of Arab Muslim men’ ”).

Cardigan Mountain School, 787 F.3d at 86, quoting Iqbal.

In Twombly, an antitrust case alleging price fixing, the Supreme Court held that allegations that the defendants had engaged in parallel conduct were factual and entitled to an assumption of truth, while also ruling that the portions of the complaint which directly alleged a conspiratorial agreement among the defendants were nothing more than legal conclusions.

In particular, the allegation that the defendants “have entered into a contract, combination or conspiracy … and have agreed not to compete with one another” was, the Supreme Court held, no more than a legal conclusion based on the allegations of parallel conduct. Id. at 564–65, 127 S.Ct. 1955. And thus, the Supreme Court held that this direct allegation of agreement did not need to be taken as true. See id.

Cardigan Mountain School, 787 F.3d at 86, quoting Twombly.

Based on its reading of Iqbal and Twombly, the Cardigan Mountain School court held that the school’s complaint set forth valid factual allegations concerning the existence of the insurance policy and was not based solely on legal conclusions.  It stressed that the complaint alleged specific events based on the personal knowledge of specific individuals, who plausibly could have known of those events.  According to the court,

The allegations in the school’s complaint described above are specific and factual. The complaint refers to individuals with relevant knowledge who are recalling facts plausibly known to them. Those allegations are thus like the allegations of actual events in Iqbal and of parallel conduct in Twombly that the Supreme Court took as true; they are specific and appear to be based on the knowledge of particular individuals. They are not bare recitations of the legal conclusion the suit seeks to prove. We thus conclude that the school’s allegations set forth above are entitled to the presumption of truth at the motion to dismiss stage.

Cardigan Mountain School, 787 F.3d at 87.  See also Rodriguez-Vives, 743 F.3d at 286 (“Here, in contrast, Rodríguez–Vives’s complaint described actions of which she had personal knowledge in sufficient detail to make them plausible.”).

Do the factual allegations suggest a plausible entitlement to relief?

After separating the true factual allegations from mere legal conclusions, the court must determine whether those allegations suggest a plausible claim to relief.  In conducting this “context specific” inquiry, “the reviewing court [must] draw on its judicial experience and common sense.” Garcia-Catalan v. United States, 734 F.3d 100, 103 (1st Cir. 2013), quoting Iqbal, 129 S.Ct. 1940.  See also Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012).  “In performing [its] review, [the court] … can consider (a) implications from documents attached to or fairly incorporated into the complaint, (b) facts susceptible to judicial notice, and (c) concessions in plaintiff’s response to the motion to dismiss.”  Schatz, 669 F.3d at 55-56.  (Internal quotation marks and footnotes omitted).

“Plausible … means something more than merely possible.”  Schatz, 669 F.3d at 55.  See also Carrero-Ojeda v. Autoridad de Energia Electrica, 755 F.3d 711, 717 (1st Cir. 2014).  “And a complaint that ‘pleads facts that are “merely consistent with” a defendant’s liability … “stops short of the line between possibility and plausibility.” ’ ” Ocasio–Hernández, 640 F.3d at 12, quoting Iqbal, 129 S.Ct. at 1949.  “The factual allegations must ‘raise a right to relief above the speculative level … [based] on the assumption that all the allegations in the complaint are true….’ ” Galiastro, 467 Mass. at 165.

However, although the plausibility standard is more demanding than the former “prove no set of facts” approach, the bar remains fairly low.  All that is required is that the, “plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct. at 1949.  Even if such an inference is “plausible but inconclusive,” the claim survives.  Rodriguez-Vives, 743 F.3d at 286.  See also Decotiis v. Whittemore, 635 F.3d 22, 35 (1st Cir. 2011).

The plausibility standard “does not demand a high degree of factual specificity.”  Garcia-Catalan, 734 F.3d 100, 103 (1st Cir. 2013).  The “plaintiff need not show that its allegations … are more likely than not true.”  Evergreen Partnering Grp., Inc. v. Pactiv Corp., 720 F.3d 33, 46 (1st Cir. 2013).  See also Sepulveda-Villarini v. Dep’t of Educ. of Puerto Rico, 628 F.3d 25, 30 (1st Cir. 2010) (“Twombly cautioned against thinking of plausibility as a standard of likely success on the merits”).

The plaintiff also need not establish a prima facie case.  According to the court in Carrero-Ojeda,

[A] complaint need not plead facts sufficient to establish a prima facie case or “allege every fact necessary to win at trial to make out a plausible claim. The prima facie standard is an evidentiary standard, not a pleading standard, and there is no need to set forth a detailed evidentiary proffer in a complaint.

755 F.3d at 718.  (Internal quotation marks and citations omitted).  However, the “elements of a prima face case remain relevant to [the] plausibility assessment, as [those] elements are part of the background against which a plausibility determination should be made.” Id.  (Internal quotation marks omitted). “[R]eference to the prima facie elements can help a court determine whether the “cumulative effect of the complaint’s factual allegations” is a plausible claim for relief. Id.

Nor may the court disregard a properly pled factual allegation merely because the court disbelieves it, finds it doubtful or unlikely to be supported by evidence at trial.  The court must assume factual allegations to be true “even if doubtful in fact” Galiastro, 467 Mass. at 165.  “[T]he court may not disregard properly pled factual allegations, even if it strikes a savvy judge that actual proof of those facts is improbable.  Indeed, a well-pleaded complaint may proceed even if … a recovery is very remote and unlikely. Ultimately, [t]he relevant inquiry focuses on the reasonableness of the inference of liability that the plaintiff is asking the court to draw from the facts alleged in the complaint.  Medina-Velazquez v. Hernandez-Gregorat, 767 F.3d 103, 109 (1st Cir. 2014).  (Internal quotation marks and citations omitted).  See also Twombly, 127 S.Ct. at 1965 (“Rule 12(b)(6) does not countenance … dismissals based on a judge’s disbelief of a complaint’s factual allegations.” (Internal quotation marks omitted)); Evergreen, 720 F.3d 33, 45 (1st Cir. 2013).

Moreover, the court may not conclude that a plaintiff’s factual allegations fail to establish a plausible claim simply because the court deems a different factual scenario more plausible.

The question at the pleading stage is not whether there is a plausible alternative to the plaintiff’s theory; the question is whether there are sufficient factual allegations to make the complaint’s claim plausible…. [T]here may … be more than one plausible interpretation of the defendant’s words, gestures, or conduct. Consequently, although an innocuous interpretation of the defendants’ conduct may be plausible, that does not mean that the plaintiff’s allegation that that conduct was culpable is not also plausible…. [O]n a Rule 12(b)(6) motion it is not the province of the court to dismiss the complaint on the basis of the court’s choice among plausible alternatives. Assuming that [plaintiff] can adduce sufficient evidence to support its factual allegations, the choice between or among plausible interpretations of the evidence will be a task for the factfinder.

Evergreen, 720 F.3d at 45-46, quoting  Anderson News, LLC v. American Media, Inc., 680 F.3d 162, 189-90 (2d Cir.2012).

Also relevant is whether, in the court’s view, any factual shortcomings of the complaint are reasonably likely to be remedied through discovery.  An important purpose of a motion to dismiss is to save the defendant from incurring the costs of discovery before being able to dispose of the matter.  The plausibility test “helps keep defendants from wasting time and money in discovery on largely groundless claims.” Schatz, 669 F.3d at 56.  (Internal quotation marks omitted).

“[T]he plausibility inquiry properly takes into account whether discovery can reasonably be expected to fill any holes in the pleader’s case.” García–Catalán v. United States, 734 F.3d 100, 104 (1st Cir.2013). To clear the plausibility hurdle, a complaint must contain “enough fact[s] to raise a reasonable expectation that discovery will reveal evidence” sufficient to flesh out a viable claim. Twombly, 550 U.S. at 556, 127 S.Ct. 1955.

Butler v. Balolia, 736 F.3d 609, 617-18 (1st Cir. 2013).  Accordingly, the plausibility test may be applied less rigorously in certain cases where, “a material part of the information needed is likely to be within the defendant’s control” and can therefore be obtained only via discovery.  Garcia-Catalan, 734 F.3d 100, 104 (1st Cir. 2013).

While the plausibility standard undoubtedly requires plaintiffs to offer greater factual support for their claims than was necessary under the prior standard, and while the concept of “plausibility” continues to evolve, it is clear that the bar remains relatively low.  Nevertheless, plaintiffs would be well advised to state their claims with as much factual detail as possible and to avoid reliance on conclusory legal allegations.

 

“This is very bad news,” thought Jim Buttermilk, CEO of Low Kelvin Ice Cream, makers of “the iciest ice cream on earth.”  He had just received notice that Low Kelvin’s landlord, All Smiles Property Investors, had terminated its commercial lease for the property, where Low Kelvin’s cryogenic ice cream tasting bar was located, and commenced a summary process action based on alleged non-payment of rent.  This was more than a little surprising as Low Kelvin had paid all amounts due.  As Jim looked into the matter, it became apparent that All Smiles was basing the termination on Low Kelvin’s inadvertent late payment of certain real estate taxes, a breach of the lease but one which Low Kelvin had cured months earlier.

The lease contained a default provision allowing All Smiles to terminate the tenancy if Low Kelvin defaulted in the payment of any rent for 10 days after written notice.  Low Kelvin had always paid its rent on time.  Under the lease, Low Kelvin was to pay, in addition to base rent, its proportionate share of real estate taxes on the property.  The payment of additional rent was due within 30 days after written notice from the landlord as to the amount of the taxes.  For more than three years, Low Kelvin received no such notice and made no additional rent payments.  Then, on March 5, All Smiles had delivered a notice seeking payment of $30,000 for real estate taxes within 30 days, i.e., by April 4.  Low Kelvin intended to comply, but due to a clerical error (its accountant entered the due date as April 8 rather than April 4), the payment was made four days late.

All Smiles now relies on that late payment of additional rent as the basis for terminating the lease and evicting Low Kelvin.  However, Massachusetts law arguably provides Low Kelvin with a good defense because either: (1) Any breach of the Lease resulting from failure to pay real estate taxes was insignificant and Low Kelvin acted in good faith at all times, or (2) Even if Low Kelvin’s breach in failing to pay real estate taxes was not insignificant, equitable considerations, including the fact that the parties continued good faith negotiations concerning the amount and method of payment of the real estate taxes until after the deadline for payment, together with the established rule disfavoring forfeiture, require a court to deny All Smiles possession of the premises.

The breach was insignificant.

Low Kelvin can argue that the breach was insignificant and cannot form the basis for eviction/forfeiture, and the default provision of the Lease is unenforceable to the extent it would allow termination for such a breach.  Not all breaches of commercial leases justify termination and eviction.  This is true even when the lease contains a default provision which, on its face, allows termination and eviction.  In DiBella v. Fiumara, 63 Mass. App. Ct. 640 (2005), the Appeals Court identified three classes of breach of commercial leases, each of which must be treated differently.  According to the Court,

General rules governing breaches of a lease and default clauses. Before discussing the trial judge’s findings in more detail, we turn to the general rules governing the right of a landlord to terminate a lease for breaches by a tenant.

a.  Material breaches. In the absence of a clause similar to paragraph 17 (hereafter called a default clause), a landlord may only terminate a lease if the tenant commits a material breach, defined in our cases as a breach of an “essential and inducing feature of the contract [ ].”…. See Restatement (Second) of Property (Landlord & Tenant) § 13.1 (1977). Thus, where the breach is material, it is unnecessary to discuss a default clause, even if contained in a lease or license; the landlord or licensor may terminate even without such a clause….

b.  Insignificant breaches. If the breach is insignificant or accidental, even if there is a default clause, our courts will not allow termination. See, e.g., Mactier v. Osborn, 146 Mass. 399, 402, 15 N.E. 641 (1888) (accidental breach of an obligation to insure); Judkins v. Charette, 255 Mass. 76, 82–83, 151 N.E. 81 (1926) (accidental failure to pay rent on time); Kaplan v. Flynn, 255 Mass. 127, 129–131, 150 N.E. 872 (1926) (failure to paint); Howard D. Johnson Co. v. Madigan, 361 Mass. 454, 457–459, 280 N.E.2d 689 (1972) (failure to submit gross sales figures, and when such figures were finally produced, failure to have them signed by a responsible financial officer of lessee). See also Restatement (Second) of Property (Landlord & Tenant) § 13.1 Reporter’s note 9, at 507.

c.  Breaches that are neither material nor insignificant. Where the lease contains a default clause, but the breach, while not insignificant, is also not material (that is, it is not a breach of an “essential and inducing feature” of the agreement, … the default clause will in most cases be controlling….

Id. at 643-45.   See also Maniff v. Town of Saugus, 85 Mass. App. Ct. 1118, 2014 WL 1758213, *2 (5/5/14) (unpublished Rule 1:28 decision) (“Where a breach is so immaterial that it is insignificant or accidental, the breach may not serve as grounds for termination, regardless of whether the contract contains a default clause…. Where a breach is immaterial but not insignificant, the default clause will generally control, unless strong equitable considerations do not support or permit termination.” (Internal quotation marks omitted)).

Low Kelvin’s breach of the lease was its accidental failure to pay real estate taxes for only four days after the date set in the notice of default.  Low Kelvin can argue that this is not a significant breach.  A material breach is a breach of an “essential and inducing feature of the contract.”  DiBella, 63 Mass. App. Ct. at 644.  Factors considered in determining whether a breach is material include, “(a) the extent to which the injured party will be deprived of the benefit which he reasonably expected; (b) the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived; (c) the extent to which the party failing to perform or to offer to perform will suffer forfeiture; (d) the likelihood that the party failing to perform or to offer to perform will cure his failure, taking account of all the circumstances including any reasonable assurances; (e) the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing.”  Id., quoting Restatement (second) of Contracts, §241 (1981).  Those factors weigh heavily against materiality of Low Kelvin’s accidental, temporary and now cured breach.

In cases where a failure to pay rent was inadvertent, Massachusetts courts have held that the breach was insignificant and that leases could not be terminated on that basis. The Court in DiBella cited Judkins v. Charette, 255 Mass. 76, 82-83 (1926), for the proposition that “accidental failure to pay rent on time is an insignificant breach.”  Moreover, the United States District Court for the District of Massachusetts, in Banco do Brasil, S.A. v. 275 Washington Street Corp., 750 F.Supp.2d 279 (D. Mass. 2010), states, “the ‘accidental failure to pay rent on time’ is such an insignificant or accidental breach that it will not support the termination of a lease.”  Id. at 292.  The Court further stated, “Massachusetts joins with nearly all courts [which] hold that, regardless of the language of the lease, to justify forfeiture, the breach must be “material,” “serious,” or [“]substantial”… Forfeiture for a trivial or immaterial breach of a commercial lease should not be enforced.”  Id.  (Internal quotation marks omitted).  As Low Kelvin’s breach was accidental and insignificant, termination of its lease would be improper, regardless of what is set forth in the lease’s default provision.

Equitable considerations.

Even if a court were to conclude that the late payment of real estate taxes by Low Kelvin was not insignificant, Low Kelvin can argue that equitable considerations still require denial of All Smiles’ claim to possession of the premises.  In DiBella, the Court noted that even when a breach is not insignificant, and the default clause would otherwise apply, a court must consider whether equity and fairness require that the Lease not be terminated.  The Court stated,

Even if a default clause would otherwise be effective, our courts “do not look with favor upon penalties and forfeitures.” Judkins v. Charette, 255 Mass. at 83, 151 N.E. 81. See Howard D. Johnson Co. v. Madigan, 361 Mass. at 456, 280 N.E.2d 689. … Thus, even when there is a default clause, “[e]quitable considerations, … if present, may entitle the tenant to relief against the forfeiture of his lease for a mere failure to perform his promise.” Restatement (Second) of Property (Landlord & Tenant) § 13.1 comment j.

63 Mass. App. Ct. at 645-46.  In JonJame Realty Trust v. Ryan, the Court explained,

we point out that “[e]ven if a default clause would otherwise be effective, our courts ‘do not look with favor upon penalties and forfeitures.’ “ Id., quoting Judkins v. Charette, 255 Mass. 76, 83, 151 N.E. 81 (1926). “Thus, even when there is a default clause, ‘[e]quitable considerations … if present, may entitle the tenant to relief against the forfeiture of [its] lease for a mere failure to perform [its] promise.’ ” Id. at 646, 151 N.E. 81, quoting Restatement (Second) of Property (Landlord & Tenant) § 13.1 comment j (1977). Among such considerations are “the extent to which the injured party will be deprived of benefit, whether that party will suffer loss, and the extent to which the party failing to perform will suffer forfeiture.”   Id. at 646 n. 7, 151 N.E. 81. A court will “look to whether ‘on the whole it is just and right’ that relief from forfeiture of the lease should be granted,” id., quoting Lundin v. Schoeffer, 167 Mass. 465, 469, 45 N.E. 933 (1897), and “will also consider whether the injured party can be adequately compensated, or has changed its position.” Id.

2011 Mass. App. Div. 16, 2011 WL 1346922, *2 (2/7/11).

Low Kelvin can argue that in its case, the equities weigh strongly against the termination of the lease.  Notably, the Court in Banco do Brasil refused to enforce a lease termination provision where the breach at issue was the tenant’s accidental non-payment of rent, which it later cured, causing no harm to the landlord. Here, Low Kelvin’s late payment of the real estate taxes was accidental. Moreover, Low Kelvin fully cured the breach by its payment of the full amount due on April 18.  In addition, the lessor, All Smiles, would suffer no loss if the lease were allowed to continue.  It has been fully compensated and has not changed its position.  Conversely, a termination of the lease would impose a serious forfeiture on Low Kelvin, as it will lose its place of business and its investment therein.

Accordingly, in light of the fact that Low Kelvin paid all amounts due, that its alleged late payment was accidental, that Low Kelvin acted in good faith, and that the lessor failed to even notify Low Kelvin that real estate taxes were owed for more than three years, a Massachusetts court is likely to conclude that “‘on the whole it is just and right’ that relief from forfeiture of the lease should be granted.”  DiBella, 63 Mass. App. Ct. at 646 n.7.

 

A tort plaintiff may sue multiple defendants, alleging that each of them played a role in causing the plaintiff’s injury and that the defendants are, therefore, joint tortfeasors.  Upon reaching a settlement with one of the joint tortfeasors, the plaintiff releases that defendant from liability in return for payment of the agreed settlement.  Does such a release of the settling defendant also release any non-settling defendants?

The answer is clearly “no,” a release of one joint tortfeasor does not release other jointly liable defendants, unless it is the plaintiff’s intention to do so.  However, under some circumstances, releasing one defendant may release other defendants whose liability is other than joint.

Massachusetts G.L. c. 231B, §4 provides,

When a release or covenant not to sue or not to enforce judgment is given in good faith to one of two or more persons liable in tort for the same injury:

(a) It shall not discharge any of the other tortfeasors from liability for the injury unless its terms so provide; but it shall reduce the claim against the others to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, whichever is the greater; and

(b) It shall discharge the tortfeasor to whom it is given from all liability for contribution to any other tortfeasor.

(Emphasis added).  See also Cram v. Town of Northbridge, 410 Mass. 800, 804 (1991) (“We hold that a plaintiff who signs a general release form does not discharge all potential joint tortfeasors who are not specifically mentioned in the release unless the plaintiff intended to do so.”); New Hampshire Ins. Co. v. McCann, 429 Mass. 202, 204 n.2 (1999); Lopez Torres v. Cornu Management Co., Inc., 86 Mass. App. Ct. 1120, 2014 WL 6090309, * 1 (11/14/14) (unpublished Rule 1:28 decision).

However, this rule applies only where the settling defendant and a non-settling defendants are jointly liable.  It does not apply where the non-settling defendant is liable only vicariously on the basis of respondeat superior.  Elias v. Unisys Corp., 410 Mass. 479, 482 (1991), James-Brown v. Commerce Ins. Co., 85 Mass. App. Ct. 1111, 2014 WL 1325663, * 1 (4/4/14) (unpublished Rule 1:28 decision); Baily v. Town of Bourne, 38 Mass. App. Ct. 70, 72, 76 (1995).  Nor does it apply where the defendants are not jointly liable because, “neither … participated in the other’s breach.”  Reilly v. Local 589, Amalgamated Transit Union, 31 Mass. App. Ct. 633, 639 (1991).

 

Ellen was thrilled to finally be adding to her house a sun room overlooking the pond.  Her excitement turned to horror, however, when she came home one afternoon to find her home in flames.  A contractor’s negligence had caused an electrical fire which burned Ellen’s home to the ground as she watched.  For months after the fire, Ellen suffered from sleeplessness, haunted by the trauma she had suffered.  She consulted her doctor who diagnosed her insomnia and prescribed medications to treat it.

In Ellen’s lawsuit against the contractor, she includes a count for negligent infliction of emotional distress (“NIED”).  The contractor files a motion to dismiss, arguing that mere insomnia is not an injury which can form the basis an NIED claim.  The Court should deny the motion to dismiss because sleeplessness and/or insomnia, if adequately corroborated, are the types of physical harm which can serve as the basis for a viable NIED claim. 

In Gutierrez v. MBTA, 437 Mass. 396 (2002), the Supreme Judicial Court summarized the present requirements for an NIED claim, as follows:

Prior to Sullivan, our case law had required that a plaintiff demonstrate: “(1) negligence; (2) emotional distress; (3) causation; (4) physical harm manifested by objective symptomatology; and (5) that a reasonable person would have suffered emotional distress under the circumstances of the case.” Sullivan v. Boston Gas Co., supra at 132, 605 N.E.2d 805, quoting Payton v. Abbott Labs, 386 Mass. 540, 557, 437 N.E.2d 171 (1982). Under the former rule, the plaintiffs had to substantiate the objective symptomatology with “expert medical testimony.” Payton v. Abbott Labs, supra at 556, 437 N.E.2d 171. We then relaxed this requirement, holding instead that plaintiffs must “corroborate their mental distress claims with enough objective evidence of harm to convince a judge that their claims present a sufficient likelihood of genuineness to go to trial.” Sullivan v. Boston Gas Co., supra at 137–138, 605 N.E.2d 805. We did not eliminate the physical harm requirement, but merely expanded the range of symptoms that may provide the type of objective evidence to prove physical harm to include symptoms that could be classified as more “mental” than “physical.” Id. at 135–139, 605 N.E.2d 805 (“we hold that both plaintiffs produced sufficient objective evidence of physical manifestation of mental distress to survive a summary judgment motion” [emphasis supplied]). In addition, we explicitly stated that “[a] successful negligent infliction of emotional distress claim … must do more than allege ‘mere upset, dismay, humiliation, grief and anger.’ ” Id. at 137, 605 N.E.2d 805, quoting Corso v. Merrill, 119 N.H. 647, 653, 406 A.2d 300 (1979).

Id. at 412. 

Expert testimony is not required.   Rodriguez v. Cambridge Hous. Auth., 443 Mass. 697, 702 (2005).  See also Peters v. Burns, 95 Mass. App. Ct. 1114, 2019 WL 2172790, *4 (5/20/19) (unpublished Rule 1:28 decision). However, plaintiffs must, “corroborate their mental distress claims with enough objective evidence of harm to convince a judge that their claims present a sufficient likelihood of genuineness to go to trial.”  Rodriguez, 443 Mass. at 702; Peters, 2019 WL 2172790, *4.  For some claims, “medical testimony may be needed to make this showing.”  Sullivan v. Boston Gas Co., 414 Mass. 129, 137-38 (1993).  However, the expert “need not have observed an actual, external sign of physical deterioration. They may consider, in the exercise of their professional judgment, the plaintiffs’ description of the symptoms they experience.”  Id. at 138. (Internal citation omitted). 

“The length of time that plaintiffs experienced particular symptoms could be one reliable indicator of the sufficiency of their evidence.”  Rodriguez, 443 Mass. at 702.  See also O’Neil v. Daimlerchrysler Corp., 538 F. Supp.2d 304, 321 (D. Mass. 2008). 

The nature of the incident alleged to have given rise to NIED is also relevant.  Where a plaintiff has witnessed her own home burning down, that “might be sufficient, in and of itself, to corroborate the physical manifestations of emotional distress.”  Gardner v. Simpson Financing Ltd. Partnership, 963 F.Supp.2d 72, 83 (D. Mass. 2013), citing Sullivan (where the court held that plaintiffs had suffered compensable negligent infliction of emotional distress watching their house burn down after a gas explosion).

Difficulty sleeping, insomnia or sleep disorders, if adequately corroborated, can satisfy the physical harm element of an NIED claim.  Sullivan, 414 Mass. at 131-32, 139-40 (noting that sleeplessness is a common manifestation of PTSD).  See also Rodriguez, 443 Mass. at 705 (finding that plaintiff had presented sufficient objective evidence to enable jury to rule for her on NIED claim, where her doctor had noted that she, “was suffering from an increase in posttraumatic stress disorder, nightmares, insomnia, and dissociative episodes.”  (Emphasis added)); Calderon v. Royal Park, LLC, ___ Mass. App. Ct. ___, 2019 WL 4266099, *5 (9/10/19) (“objective manifestations of her emotional distress include anxiety, depression, sleeplessness, night terrors, nightmares, diminished appetite and food intake, bouts of extreme anger, behavioral problems at home and school, poor educational performance, and self-harm. Nothing more was required at the pleading stage.” (Internal quotation marks omitted)); Adams v. Congress Auto Ins. Agency, Inc., 90 Mass. App. Ct. 761, 770 (2016); Marinova v. Boston Herald, Inc., 2016 WL 7637805, *3 (Mass. Super. 8/3/16) (“The plaintiff testified to her fear, paranoia, depression, anxiety, and sleeplessness. Others testified to the apparent impact that the publication had had upon the plaintiff, including a multi-faceted lethargy, crying jags, and the like. That evidence was sufficient….” (Emphasis added)); Palano v. Bellagio Corp., 2009 Mass. App. Div. 125, 2009 WL 1846347, *3 (3/6/09) (plaintiff stated in her affidavit that “she was “feeling upset, frustrated, helpless and depressed…. [She] continued to suffer stress headaches, sleeplessness and crying fits.” (Emphasis added)); McCrohan v. Uxbridge Police Assoc. Local #123, MCOP, AFL-CIO, 2014 WL 12769267, *11 (D. Mass. 11/12/14) (“Therefore, a plaintiff’s claim may go forward upon production of sufficient objective evidence that they suffer from PTSD, tension headaches, sleeplessness, nightmares, depression, or other symptoms of emotional distress.” (Emphasis added)); O’Neil, 538 F. Supp.2d at 321.

Accordingly, the mere fact that Ellen’s NIED claim is based on difficulty sleeping do not render it inadequate as a matter of law.  If Ellen provides adequate proof of her insomnia, and its connection to the trauma of watching the destruction of her home, her NIED claim is viable.

 

As a prerequisite to filing a court action against the United States under the Federal Tort Claims Act (“FTCA”), a “claimant must have first presented the claim to the appropriate federal agency and the claim must have been denied.” Corte-Real v. United States, 949 F.2d 484, 485 (1^st Cir. 1991); 28 U.S.C. § 2675(a).  That claim must make a demand for money damages in a “sum certain.” Holloway v. United States, 845 F.3d 487, 489 (1st Cir. 2017). 

While the damages a plaintiff may recover in such a judicial action are usually limited to those identified in the administrative claim, additional damages may be sought if the plaintiff shows that such damages are: (1) based on newly discovered evidence or (2) arise from intervening facts, occurring after the administrative claim was filed.  The test is strictly applied and depends on whether the additional damages could reasonably have been foreseen by the plaintiff at the time the administrative claim was filed.

Section 2675(b) of the FTCA provides,

(b) Action under this section shall not be instituted for any sum in excess of the amount of the claim presented to the federal agency, except where the increased amount is based upon newly discovered evidence not reasonably discoverable at the time of presenting the claim to the federal agency, or upon allegation and proof of intervening facts, relating to the amount of the claim. (Emphasis added).

Accordingly, “a plaintiff has to meet only one of the two tests to increase the ad damnum; it is not required that the plaintiff meet both tests.”  Lowry v. U.S., 958 F.Supp. 704, 710 (D. Mass. 1997).  

Although the phrase “not reasonably discoverable at the time of presenting the claim” modifies only the “newly discovered evidence” exception, First Circuit courts appear to require that any “intervening facts” also be unforeseeable.  In Reilly v. United States, 863 F2d 149 (1^st Cir. 1988), the Court addressed both the newly discovered evidence and the intervening facts prongs of §2675(b).  It held that the worsening of plaintiff’s medical condition did not constitute “newly discovered evidence” or “intervening facts” such as to justify an increase in damages above what was stated in the administrative claim, because the deterioration of plaintiff’s condition was a worst case scenario which plaintiff could reasonably have foreseen at the time the administrative claim was filed. 

At trial, plaintiffs sought to recover more than the upper limit of the claim. The district court honored their entreaty, setting damages in the aggregate amount of $11,037,964. The court rested disregard of the Form 95 ceiling on its finding that:

Only after May 1985 did it become medically apparent that Heather would never be able to walk or talk, and that she would be able to see only enough to distinguish light from dark…. Given the undisputed medical impossibility of knowing the extent of Heather’s multiple disabilities at the time the administrative claim was filed, I find the experts’ subsequent confirmation that the worst possibilities had materialized to constitute “newly discovered evidence not reasonably discoverable at the time of presenting the claim to the federal agency …,” 28 U.S.C. subsection 2675(b).

Reilly I, 665 F.Supp. at 1011. Although we start with the premise that a determination of what constitutes “newly discovered evidence not reasonably discoverable” in any particular case is the sort of fact-specific conclusion which demands a substantial degree of deference to the trial court, we believe that the determination here was plainly erroneous.

Because the statute itself renders the state of a claimant’s knowledge (actual or constructive) at the time of presentment of the claim of decretory significance, the mechanics of a § 2675(b) inquiry must be double-barrelled: What should the party have known? When should she have known it? To be binding in this context, knowledge need not be certain. In the same vein, intelligence which serves only to bear out earlier suspicions cannot unlock the FTCA’s narrow escape hatch. Diagnoses which are no more than cumulative and confirmatory of earlier diagnoses are neither “newly discovered evidence” nor “intervening facts” for the purposes of § 2675(b). See Kielwien v. United States, 540 F.2d 676, 680–81 (4th Cir.), cert. denied, 429 U.S. 979, 97 S.Ct. 491, 50 L.Ed.2d 588 (1976); Powers v. United States, 589 F.Supp. 1084, 1110 (D.Conn.1984). We agree with the Second Circuit that the statute demands a showing that “some new and previously unforeseen information came to light” between the time of filing the administrative claim and the trial on damages. O’Rourke v. Eastern Air Lines, Inc., 730 F.2d 842, 856 (2d Cir.1984). And, the newly-emergent datum must be material.

On this occasion, the information in question was neither sufficiently new, nor sufficiently unforeseen, nor sufficiently material. By the time the claim was filed, the Reillys were on notice of the global extent of Heather’s injuries and disabilities. The evidence upon which the district court relied to lift the cap was, at bottom, nothing more than “the experts’ subsequent confirmation that the worst possibilities had materialized.” Reilly I, 665 F.Supp. at 1011. Yet these very same “worst possibilities,” i.e., “that Heather would never be able to walk or talk, and that she would be able to see only enough to distinguish light from dark,” id., were present from the start. Indeed, they were at the core of appellees’ administrative claim, which alleged “seizures, blindness, profound neurological deficit” and the like as the sequelae of the harm. The mere fact that these dread consequences, feared from the beginning, had become more certain does not suffice to brand them “newly discovered.”

In this regard, the instant case bears an uncanny resemblance to Low v. United States, 795 F.2d 466 (5th Cir.1986)….

In its pertinent parameters, Low is on all fours with the case at bar. Here, as in Low, the basic severity of the child’s condition was known and recited in the claim form….

This, we think, was more than enough to put the parents on fair notice to guard against the worst-case scenario when preparing their claim. As in Low, the fact that the degree of disability was uncertain was, in and of itself, inadequate to trigger the exception to § 2675(b). To use the district court’s terminology, “[c]onfirmation that the worst possibilities had materialized,” Reilly I, 665 F.Supp. at 1011, came no closer to constituting “newly discovered evidence” than did realization of “the worst-case prognosis.” Low, 795 F.2d at 471. Like the Low court, we cannot subscribe to such a nanization of the administrative ad damnum. To so hold would be to eviscerate the statute and reduce the insertion of a monetary limit to an empty formality.

We do not categorize such a construction of the law as unduly harsh. The goal of the administrative claim requirement is to let the government know what it is likely up against…. As between prospective defendant and prospective plaintiff, the latter is in by far the better position to determine the worst-case scenario or, if uncertain, to paint the picture as bleakly as reason permits and conscience allows. If a plaintiff misjudges, as to matters known or easily deducible when her claim is filed, it seems more equitable for her to bear the burden of miscalculation than to impose it on the sovereign.…

***

We conclude that the district court erred in allowing plaintiffs to recover damages in excess of the cap established in their administrative claim.

863 F.2d at 171-73.  (Emphasis added, footnote references omitted).

Summarizing First Circuit law, a Magistrate Judge explained,

[T]he following principles are applicable:

1. The burden of proving “newly discovered evidence” and/or “intervening facts” rests with the plaintiff.

2. The claimant is not required to be clairvoyant and is not to be charged with knowledge which neither the claimant nor medical professionals are able to discover. [See Poirier v. U.S., 745 F. Supp.23, 32 (D. Me. 1990)]

3. However, the claimant is required to use due diligence to discover those facts which are capable of ascertainment prior to filing the claim.

4. Information which is confirmatory and/or cumulative of previous diagnoses is not a basis for an increase in damages.

5. Information going to the exact nature, extent and duration of a previous diagnosis is not a basis for an increase in damages.

6. Information which “… serves only to bear out earlier suspicions” does not entitle the plaintiff to an increase in damages. Neither does the doctors’ later “confirmation that the worst possibilities had materialized.” Reilly, 863 F.2d at 172….

7. If there is evidence “to put [the claimant] on fair notice to guard against the worst-case scenario,” the claimant has the obligation, before filing a claim, to “… determine the worst case scenario, or if uncertain, to paint the picture as bleakly as reason and conscience permits.” Id. at 173.

8. If the claimant misjudges, the claimant, not the United States, bears the consequences. Id.

Lowry, 958 F.Supp.at 719 (Collings, M.J.) (Emphasis in original).

Thus, in order to justify an increase in damages above the amount stated in the administrative claim, a plaintiff must show that the deterioration in his or her medical condition could not reasonably have been anticipated, even as part of a possible worst case scenario.  In a number of cases, courts in the First Circuit have held that plaintiff’s met this burden.

The Court in Del Valle Cruz v. U.S., 2017 WL 1207512, * 5 (D.P.R. 3/31/17), held that the decedent’s death, after the administrative claim was filed, constituted an intervening fact satisfying §2675(b).  According to the Court,

On January 12, 2012, … Otero-Ortíz was diagnosed with Non-Hodgkin Lymphoma. Otero-Ortíz received chemotherapy and radiotherapy, but died on October 25, 2012. The immediate cause of death was advanced-stage Non-Hodgkin Lymphoma and cardiac complications caused by the chemotherapy.

On June 29, 2012, Otero-Ortíz, his wife Doris Del Valle-Cruz, and his sons—Angel Otero-Del Valle and Randy Otero-Del Valle—filed administrative claims….

In this case, defendants argue that plaintiffs have not shown any newly discovered evidence or intervening fact to justify increasing the sums they claim. In other words, they argue that Otero-Ortíz’s death was foreseeable when plaintiffs filed their administrative claims, or, in the alternative, that his death is merely cumulative or confirmatory of their original claim, the alleged cancer misdiagnosis.

The Court rejects the government’s argument. In this case, Otero-Ortíz’s death is precisely the type of “new evidence” or “intervening circumstance” that justifies a suit for an amount in excess of the sum plaintiffs claimed before the VA.

Id. at *2, 5.  (Emphasis added, citations omitted).

In Kenney v. U.S. Postal Service, 298 F.Supp.2d 139 (D. Me. 2003), the Court held that an increase in damages was justified where the plaintiff did not know or have reason to know when he submitted his administrative claim that he would need surgery and ongoing physical therapy.  The Court stated,

Here, the information available to the plaintiff by June 21, 2002 was not enough to “put [the plaintiff] on fair notice to guard against the worst-case scenario when preparing [his] claim,”; less than a month after the accident, he had been told only that he had a contusion and had noticed pain and swelling. He stated that he could develop arthritis or tendonitis in the area; there has been no showing that either of these conditions necessarily requires surgery or extensive physical therapy or that the plaintiff should have known that such consequences might ensue. The remaining evidence on which the defendant relies arose after the notice of claim was filed: Dr. Crute’s order of an MRI on August 30, 2002, “which led inevitably to the ultimate later surgical decision.” The defendant contends that the plaintiff was required to “suggest[ ] he was surprised by his medical course of treatment” and to amend “has administrative claim of $12,500 to permit the Postal Service to consider the now certain greater resultant injury.” None of the case law cited by the government requires a claimant relying on the exceptions provided in section 2675(b) to demonstrate that he was “surprised” in order to be entitled to the exception, and there is no reason to require such a showing. The actual information available to the claimant at the relevant time and the possible inferences to be drawn from that information are the test, not how the claimant may have reacted to subsequently-provided information.

(Citations and footnote references omitted).  And in Poirier v. U.S., the Court held that §2675(b) was satisfied where “[T]he plaintiffs would have been hard pressed unless they were clairvoyant to foresee the resulting mental anguish, economic loss, and the reasonable probability of future surgical procedures resulting from the foibles of the defendant.”  745 F. Supp. 23, 32 (D. Me. 1990).

In sum, although an FTCA plaintiff usually cannot recover damages in excess of the amount stated in the administrative claim, additional damages may be sought in those few uncommon cases where the plaintiff can show that the deterioration in his or her medical condition could not reasonably have been anticipated, even as part of a possible worst case scenario.

 

 

Updated September 15, 2020.

Among the most common motions filed with the Massachusetts Appeals Court are those seeking additional time to file briefs.  Under Mass. R. App. P. 19(a), the appellant must file a brief within 40 days after the date on which the appeal is docketed.   The appellee’s brief must be filed within 30 days after service of the brief of the appellant.  Thereafter, a reply brief for the appellant may be filed within 14 days after service of the brief of the appellee or 7 days prior to oral argument, whichever is earlier. 

A party needing additional time to file a brief or reply brief must seek an extension from the Appeals Court.  Mass. R. App. P. 14(b) provides that, upon motion and for good cause shown, the Appeals Court may enlarge the time for doing any act prescribed by the rules.  A party seeking an extension of time for an appellate brief should file a motion, supported by an affidavit, which establishes good cause for the extension.  The Appeals Court’s guide to “Frequent Appellate Process Questions,” https://www.mass.gov/guides/appeals-court-frequent-appellate-process-questions, states that such a motion, “must explain your reasons for the requested extension, provide a date certain by which the brief will be filed, and be accompanied by a certificate of service….”  It further warns that,

[i]t is the policy of the Court to grant no more than one motion for enlargement of time per side, the enlargement sought not to exceed 120 days, and then only on the basis of an affidavit setting forth: (a) good cause to warrant the requested enlargement, and (b) an explanation why the particular time period requested is reasonable.  Further enlargements of time will ordinarily not be granted absent genuine emergency, such as a death, illness, or serious injury.

The Appeals Court has indicated that such motions should be filed at least one week before the brief’s due date.

Read more about appeals here.

Learn about my appellate brief drafting services here.

 

 

Updated:  June 1, 2019

This article appears substantially as published in the December 7, 2015, issue of the Massachusetts Lawyers Weekly. Attorney Manwaring writes the newspaper’s Appellate Issues column, which is devoted to matters arising from the appellate process.

In my last column (“A persuasive argument requires an effective Argument section,” Aug. 3), I offered some suggestions to make the Argument section of an appellate brief more effective and persuasive. Here are some additional observations.

Keep your arguments short

Keep arguments as short as possible. Each legal argument should focus on the specific issue in controversy. Avoid wasting precious space and losing the reader’s attention by including pages of boilerplate law on undisputed background issues.

Be honest and do not ignore opposing arguments

Be honest and accurate about the law. Don’t ignore contrary authority (aside from the ethical implications of doing so, the Appeals Court or your opponent will find it anyway).

Be sure that the cases you rely on fully support the legal propositions for which you cite them. Your credibility and the persuasiveness of your brief will be seriously damaged if the judges conclude that your version of the law cannot be trusted.

Similarly, do not ignore the opposing party’s arguments, even if you represent the appellant and the appellee has yet to file a brief. If the appellee made arguments before the trial court, they will certainly be made again on appeal. If the opposing party has not discovered the best argument against your position, the Appeals Court probably will. It is best to deal with the argument as best you can in your primary brief.

Choose your authority carefully

As part of keeping your arguments simple and short, carefully consider your use of citations.

• Stress binding authority. Absent that, look for the most authoritative, persuasive authority (e.g., cite to a persuasive federal case from the 1st Circuit instead of one from a different circuit);
• Choose authority in which the court was applying the same standard of review or was deciding the same or similar procedural motion;
• Unless it is absolutely clear, use parentheticals to show the reader why you are citing to a particular case;
• Limit string cites. The judges and their clerks don’t want to read 10 cases when one or two would prove your point. String cites are proper, however, when the number of courts on each side of an issue is actually relevant, as in a split of authority or when asking the Appeals Court to rule on an issue of first impression;
• Limit citations to trial court opinions. Trial court opinions have become much more accessible in recent years via Westlaw, Lexis and similar resources. However, such opinions are at most persuasive. Nevertheless, I believe that it is useful to cite trial court opinions when no other authority is available, when they present your position particularly forcefully, or when they involve facts very similar to your case.

Maintain the reader’s interest

Your brief will be more effective if it holds the interest of those who must read it. Simple steps you can take to hold readers’ interest include:

• Avoiding long quotations. Short quotations, on the other hand, enhance the power of your argument. Introduce any quotation by explaining why you are including it and what legal proposition it supports. Doing so ensures that the reader understands your argument even if he or she skips over the quoted material;
• Using short paragraphs;
• Varying sentence length. A paragraph also will flow better if the sentences differ in length. In addition, although short sentences are powerful, they lose their effectiveness if overused;
• Repeating words and sentence structure to increase effect. We’ve all heard this technique used in speeches. It also works in briefs.

In addition to the foregoing, you also should consider the following when drafting your Argument section:

• Because Appeals Court judges worry about the precedent a ruling will set for future cases, try to show that the result you seek can be accomplished by applying a rule with limits. If you are opposing the application of such a rule, argue that it will lead to unforeseen, highly detrimental consequences;
• Appeals Court judges want to reach decisions that are just, not merely technically correct. Your argument should not only identify the rule of law you want the court to apply, but also explain why the purposes and policies underlying the law support its application to the facts of the present case;
• Avoid emotional presentation and attacks on the opposing party or counsel. For example, while asserting that your opponent’s reliance on a case is “misplaced” is acceptable, you should avoid stating that your opponent is “misrepresenting” the law;
• Do not use jargon. Use simple, clear language. Judges and clerks who have to read many briefs each day will not appreciate you making an argument any more complicated than necessary;
• Avoid excessive use of bold print, underlining or italics. Used sparingly, emphasis stresses your most important points. However, it quickly loses its effect if overused;
• Avoid using footnotes for substantive content. As a general rule, if an argument is important enough to appear in your brief, put it in the text. You might consider placing all of your citations in footnotes, however.  Doing so will improve the readability of your brief.

The Argument section of your brief is your best — and perhaps your only — opportunity to persuade the Appeals Court judges to rule in your client’s favor. A well-crafted argument will frame the facts and legal issues of a case in the manner most favorable to your client; will educate the justices about the relevant facts and law; and will lead them, inexorably, step by step, to the desired result.

The foregoing suggestions should help you take advantage of this golden opportunity.

Read other parts of the Appellate Brief Series:

• In Drafting Appellate Briefs, Step 1 is Know the Audience  (Appellate Brief Series, Part 1), Massachusetts Lawyers Weekly (2014).  Learn how to draft a more effective  and successful appellate brief by keeping in mind the unique concerns and expectations of Appeals Court justices.
• Steps to Take Before You Write (Appellate Brief Series, Part 2), Massachusetts Lawyers Weekly (2014).  Learn how advance preparation pays big dividends when drafting an appellate brief.
• Writing a Brief? Know the Technical Requirements (Appellate Brief Series, Part 3), Massachusetts Lawyers Weekly (2014).  Learn about the technical requirements for a Massachusetts appellate brief, including required sections, certifications, organization, formatting and filing.
• Get Off to a Good Start With a Strong Statement of Issues (Appellate Brief Series, part 4), Massachusetts Lawyers Weekly (2014).  A carefully drafted statement of issues is critical to the success of your appellate brief.
• Follow the Statement of Issues With a Strong Statement of the Case (Appellate Brief Series Part 5), Massachusetts Lawyers Weekly (2015). Your Massachusetts appellate brief should have a strong Statement of the Case, establishing your credibility, telling a compelling story, and supporting your legal positions.
• A Persuasive Argument Requires an Effective Argument Section (Appellate Brief Series Part 6), Massachusetts Lawyers Weekly (2015).  Learn how to draft a convincing and persuasive argument section for your Massachusetts appellate brief.  It may be your only chance to present your legal positions.

Read more about appeals here.

Learn about my appellate brief drafting services here.

 

Suppose that Tom kills his housemate Bob.  He claims it was an accident but is convicted of first degree murder. The administrator of Bob’s Estate brings a civil lawsuit against Tom for wrongful death, alleging that Tom intentionally killed Bob.  The Estate argues that, under the concept of issue preclusion (a/k/a collateral estoppel), Tom’s murder conviction precludes him from claiming in the civil case that the killing was accidental.

Alternatively, imagine that Tom and Bob were the insureds under a homeowner’s insurance policy which contains an exclusion for harm intentionally caused.  Bob’s Estate sues the insurance company, alleging that Bob’s death was the result of the negligence, gross negligence or reckless conduct of its insured, Tom.  In defense, the insurer argues that Tom’s criminal conviction conclusively establishes that he killed Bob intentionally, not negligently or recklessly, so there is no coverage.

In a third scenario, Bob’s Estate brings the lawsuits described above, but Tom’s criminal conviction is based not on a trial but on his guilty plea.

In all these hypotheticals, the Estate brings civil claims to recover for Bob’s death.  And in each, a party to the civil case argues that Tom’s criminal conviction conclusively establishes that the killing was intentional.  However, issue preclusion only prevents relitigation of that issue in the first scenario, where the Estate sues Tom who was criminally convicted after a trial. In its case against the homeowner’s insurer, issue preclusion will not apply and the Estate will be allowed to introduce evidence showing the killing was not intentional.  And a guilty plea has no preclusive effect.  What explains these apparently inconsistent results?

Issue preclusion, generally.

“The doctrine of issue preclusion provides that when an issue has been ‘actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties whether on the same or different claim.’”  Jarosz v. Palmer, 436 Mass. 526, 530-31 (2002), quoting Cousineau v. Laramee, 388 Mass. 859, 863 n.4 (1983), quoting Restatement (Second) of Judgments §27 (1982). For issue preclusion to apply, there must be proof that:

(1) there was a final judgment on the merits in the prior adjudication; (2) the party against whom estoppel is asserted was a party (or in privity with a party) to the prior adjudication; (3) the issue in the prior adjudication is identical to the issue in the current adjudication; and (4) the issue decided in the prior adjudication was essential to the earlier judgment…. Collateral estoppel should only apply to issues actually litigated. (Internal quotation marks omitted).

Callender v. Suffolk County, 57 Mass. App. Ct. 361, 365 (2003), quoting Green v. Brookline, 53 Mass. App. Ct. 120, 123 (2001) and citing Treglia v. MacDonald, 430 Mass. 237, 241 (1999).  See also Pierce v. Morrison Mahoney LLP, 452 Mass. 718, 729-30 (2008); Supeno v. Equity Office Properties Management LLC, 70 Mass. App. Ct. 470, 473-74 (2007).

The Estate’s case against Tom.

Tom’s criminal conviction will estop him in the civil case from denying that his conduct towards Bob was intentional.  It is well established that, “a party to a civil action against a former criminal defendant may invoke the doctrine of collateral estoppel to preclude the criminal defendant from relitigating an issue decided in the criminal prosecution.” Jones v. Maloney, 74 Mass. App. Ct. 745, 748 (2009), quoting Aetna Cas. & Sur. Co. v. Niziolek, 395 Mass. 737, 742 (1985).  Thus, “[a] finding of guilt by trial is conclusive of the same factual issues in any later civil litigation.”  Costa v. Fall River Housing Authority, 71 Mass. App. Ct. 269, 283 (2008).  See also FSL Assoc., Inc. v. Goldberg, 87 Mass. App. Ct. 1117, 2015 WL 1945472, *2 (5/1/15) (unpublished Rule 1:28 decision); Roux v. Sadeghi, 83 Mass. App. Ct. 1134, 2013 WL 2395165, *2 (6/4/13) (unpublished Rule 1:28 decision); Restatement (second) of Judgments, §85(2).

The Aetna case concerned an insurer who filed suit against an insured who had pled guilty to arson charges, in order to recover proceeds of a fire policy paid to the insured.  Id. at 738.  The Court noted that the plaintiff insurer could not have joined the criminal prosecution, so “cannot properly be charged with sitting back and avoiding the costs of participation in on-going litigation, and then reaping a benefit from the resulting judgment.”  Id. at 745 (further citations omitted).  The Court also noted that “in light of the criminal sanctions that he faced, [the insured] had every incentive to defend the prosecution vigorously … and to take an appeal, which he did.”  Id.

Where a defendant, like Tom, is collaterally estopped in a civil case from relitigating the issues decided in his criminal prosecution, it is proper for the trial judge to grant summary judgment in favor of the plaintiff.  Fidelity Management & Research Co. v. Ostrander, 40 Mass. App. Ct. 195 (1996).  In Fidelity, an investment firm sued a former employee to compel the employee to disgorge profits from an illegal investment she made while employed by the firm.  40 Mass. App. Ct. 195, 196 (1996).  Count I of the investment firm’s complaint alleged that the employee violated her common law fiduciary duty of loyalty to the investment firm, and Counts II and III alleged violations of the Investment Company Act (ICA).  Id.  After the employee was convicted, the employer filed a motion for partial summary judgment on Counts I, II and III.  Id. at 196-7.

The civil trial judge granted partial summary judgment on Count I (breach of fiduciary duty), holding that the employee was collaterally estopped from relitigating the facts which were proved at her criminal trial, and ruled that there was no need to decide counts II and III (violations of the ICA) because they were duplicative of count I.  Fidelity, 40 Mass. App. Ct. at 197.  The employee appealed the summary judgment ruling.  Id. at 198.

Affirming, the Appeals Court restated the rule outlined in Aetna and found that it was appropriate to apply collateral estoppel because the employee, “was convicted of a crime that was directly related to the controversy in issue.”  Fidelity, 40 Mass. App. Ct. at 199.  The Appeals Court noted that the investment firm could not have joined the criminal prosecution of the employee, that the employee had every incentive to vigorously defend her prosecution, and that the employee had appealed her conviction.  Id.

Like the employee in Fidelity, Tom was convicted of offenses, “directly related to the controversy in issue” in the civil matter.  In order to find Tom guilty of first degree murder, the jury in his criminal trial had to find, among other things, that he intentionally assaulted Bob.  Com. v. LaCava, 438 Mass. 708, 718 (2003)  (“The nature of malice necessary to a conviction of murder in the first degree is a ‘specific intent to kill’ ”).  The Estate’s wrongful death claim alleges that Tom intended to kill Bob.  Moreover, Bob’s Estate could not have joined the criminal prosecution of Tom and thus, “cannot properly be charged with sitting back and avoiding the costs of participation in on-going litigation, and then reaping a benefit from the resulting judgment.” Aetna, 395 Mass. at 745.  In light of the criminal sanctions he faced, Tom, “had every incentive to defend the prosecution vigorously … and to take an appeal, which he did.”  Id.  Furthermore, Tom’s intent was actually litigated and determined in his criminal trial, was essential to the criminal judgment, and Tom had ample incentive to defend himself.

Accordingly, issue preclusion will apply and Tom will be precluded in the civil trial from introducing evidence that he killed Bob other than intentionally.[1]

The Estate’s case against the homeowner’s insurer.

In the insurance action, Bob’s Estate sues the insurance company, alleging that Bob’s death was the result of Tom’s negligence, gross negligence or reckless conduct.  The insurer argues that Tom’s criminal conviction conclusively establishes that he intentionally killed Bob, and that the Estate is precluded from relitigating the issue of intent.

Despite the facial similarity of the Estate’s action against the insurance company to its action against Tom, issue preclusion will not apply in the insurance case.  The critical difference between the two cases is that the party precluded in the wrongful death case (Tom) was a party to the criminal trial, while the insurance company seeks to preclude the Estate, which was not a party to the criminal case.

As noted above, in order for issue preclusion to apply, “the party against whom estoppel is asserted was a party (or in privity with a party) to the prior adjudication….” Callender, 57 Mass. App. Ct. at 365.   In the Estate’s case against the insurance company, even assuming that the other requirements for issue preclusion were satisfied, the party against whom estoppel is asserted, the Estate, was not “a party (or in privity with a party) to the prior adjudication.”  The decision of the Massachusetts Supreme Judicial Court in Massachusetts Property Insurance Underwriting Assoc. v. Norrington, 395 Mass. 751 (1985), is controlling.

In Norrington, the MPIUA issued a homeowner’s insurance policy to Thomas and Person.  That policy excluded coverage for, “bodily injury or property damage … which is expected or intended by the insured.”  Person shot and killed Thomas and was convicted of murder in the second degree.  Norrington, Thomas’ next of kin, sole heir and administrator of her estate, brought a wrongful death action claiming that Person had negligently, or willfully, wantonly and recklessly, or by gross negligence, shot Thomas.  The MPIUA intervened and asserted that there was no coverage because Person had acted intentionally.  It invoked issue preclusion based on the criminal conviction to prevent Norrington from relitigating the issue whether Person had intended to shoot and kill Thomas.

The Supreme Judicial Court held that issue preclusion did not apply to Norrington because he had not been a party to the criminal case and had not been adequately represented by any party to that case:

We hold that, although the doctrine of collateral estoppel could be applied to preclude Person from relitigating issues decided in his criminal trial, collateral estoppel cannot be applied so as to preclude Norrington from litigating such issues. Therefore, MPIUA’s motion for summary judgment must be denied.

… [I]n civil litigation between MPIUA and Person, collateral estoppel could be applied to preclude Person from relitigating issues decided in his criminal trial. It does not follow, however, that Norrington’s position is no better than Person’s.

…  We assume, without deciding, that, for collateral estoppel purposes, the issue decided by the jury in the criminal case was identical to the issue on which the existence of insurance coverage depends…. We also assume, again without deciding, that, … Person’s conviction constitutes a final judgment for collateral estoppel purposes. Thus, all the requirements for issue preclusion against Person, and the first two requirements for issue preclusion against Norrington, have been met. We conclude, however, that issue preclusion cannot be applied against Norrington, because he was neither a party nor in privity with a party to the criminal case.

… At Person’s criminal trial, Person in no sense represented the interests of Norrington (or of Thomas, with whom Norrington was in privity). “[I]t creates no privity between two parties that, as litigants in two different suits, they happen to be interested in proving or disproving the same facts.” Sturbridge v. Franklin, 160 Mass. 149, 151, 35 N.E. 669 (1893). Nor did the prosecution represent Norrington’s interests. Furthermore, Norrington had no opportunity to participate in the criminal case. See McCarthy v. Daggett, 344 Mass. 577, 580, 183 N.E.2d 502 (1962).

Clearly, then, Norrington should not be precluded from attempting to show in his wrongful death action against Person that Person did not expect or intend the shooting and the resultant death….

395 Mass. at 753-55.  (Emphasis added).

The Restatement Illustration cited by the Court states:

D inflicts a blow on X as a result of which X dies. D is convicted of intentional homicide. P, administrator of X’s estate, brings an action against D for wrongful death, alleging D’s act was negligent. I had previously issued a policy of liability insurance to D, insuring liability for D’s negligent acts but excluding intentional acts. In P’s action against D, P is not precluded by the criminal conviction from showing that D’s act was negligent rather than intentional. …

Restatement (Second) of Judgments § 85 illustration 10 (1982).

The Norrington Court noted that its ruling did not give the crime victim (represented by Norrington) a greater right to indemnity than the insured party, Person, and was not unfair to the insurer:

Neither Norrington nor Person has a right to indemnity if Person expected or intended Thomas’s injury.  But that does not mean that, because MPIUA could invoke issue preclusion against Person, it can also invoke issue preclusion against Norrington….  Allowing the application of issue preclusion against the insured, but not against the injured person, does no violence to the substantive principle that an injured party succeeds only to the insured’s rights against the insurer. In the criminal case, Person had his day in court. Norrington, however, has had no opportunity to litigate the question whether Person expected or intended to shoot Thomas. Fairness requires that he be given that opportunity. By not applying issue preclusion to Norrington, we place no undue burden on MPIUA. MPIUA has not previously been required to litigate the critical coverage question. It seeks only to enjoy the benefit of a finding in a case to which it was not a party.

Id. at 756.

Other Massachusetts cases have followed Norrington, holding that a third party suing a criminal’s insurer is not subject to issue preclusion based on the criminal conviction.  In Bourque v. Cape Southport Assoc., LLC, 60 Mass. App. Ct. 271, 275 (2004), the Court cited Norrington for the proposition that the, “finding in a criminal case that the insured intended to cause the victim’s death did not preclude a nonparty’s right to prove in a later coverage action that the insured did not intend the victim’s death.”  In Worcester Ins. Co. v. Fells Acre Day School, Inc., 408 Mass. 393, 401 n.9 (1990), the Court stated in a footnote, “although under Norrington, the tort plaintiffs are not precluded from relitigating the tort defendant’s ability to form an intent to injure….”  (Emphasis in original).  And the Court of Appeals for the First Circuit, in Kowalski v. Gagne, 914 F.2d 299, 304 n. 4 (1^st Cir. 1990), recognized that different issues are raised by an attempt to use a defendant insured’s criminal conviction to estop the victim than are raised by an attempt to estop the insured.  See also Illinois Farmers Ins. Co. v. Reed, 662 N.W.2d 529 (Minn. 2003) (citing and following Norrington); 25 No. 13 Ins. Litig. Rep. 380, “Daycare Operator’s Conviction Did Not Bar Assaulted Child’s Parent’s From Litigating Applicability of Policy’s Intentional Acts Exclusion” (2003).

Accordingly, while Tom’s conviction precludes him from relitigating the issue of intent, it will not preclude Bob’s Estate from showing, in its civil case against the insurer, that Tom did not kill Bob intentionally.

What if Tom’s conviction were based on a guilty plea?

A guilty plea cannot give rise to issue preclusion / collateral estoppel.  Metropolitan Property and Casualty Ins. Co. v. Morrison, 460 Mass. 352, 364 (2011); Niziolek, 395 Mass. at 747-48.  Instead, a guilty plea, “may be offered as evidence of a defendant’s guilt in subsequent civil litigation but is not given preclusive effect.”  Morrison, 460 Mass. at 364.  See also Niziolek, 395 Mass. at 748.  This rule is explained by the fact that no issue is “actually litigated” when a defendant enters a guilty plea.  In Niziolek, the Court explained,

Collateral estoppel “can be used only to prevent ‘relitigation of issues actually litigated’ in a prior lawsuit.” Nevada v. United States, 463 U.S. 110, 130 n. 11, 103 S.Ct. 2906, 2918 n. 11, 77 L.Ed.2d 509 (1983), quoting from Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n. 5, 99 S.Ct. 645, 649 n. 5, 58 L.Ed.2d 552 (1979). See also Home Owners Fed. Sav. & Loan Ass’n v. Northwestern Fire & Marine Ins. Co., 354 Mass. 448, 455, 238 N.E.2d 55 (1968) (findings may provide basis for collateral estoppel only if “the product of full litigation and careful decision”). When a conviction is entered after a plea of guilty, “no issue [is] ‘actually litigated’ … since [the defendant] decline[s] to contest his guilt in any way.” Haring v. Prosise, 462 U.S. 306, 316, 103 S.Ct. 2368, 2374, 76 L.Ed.2d 595 (1983). Therefore, the doctrine of collateral estoppel does not apply to preclude the former criminal defendant from litigating in subsequent civil litigation issues involved in the criminal proceeding in which he pleaded guilty. See Restatement (Second) of Judgments § 85 comment b (1982); 1B Moore’s Federal Practice par. 0.418[1] (1984); C.A. Wright, A.R. Miller & E.H. Cooper, Federal Practice and Procedure § 4474 (1981).

***

… It is true … that, before accepting a guilty plea, judges in this Commonwealth must take great pains to ensure that the plea has a basis in fact. Mass.R.Crim.P. 12(c)(5)(A)…. Nevertheless, “the taking of a guilty plea is not the same as an adjudication on the merits after full trial.” Ohio v. Johnson, –––U.S. ––––, 104 S.Ct. 2536, 2541–2542 n. 9, 81 L.Ed.2d 425 (1984)…. While the judge taking the plea must satisfy himself that there is a factual basis for a charge, he need not find that the defendant actually committed the crime to which he is pleading guilty…. Furthermore, because there have been no findings, a conviction after a plea of guilty does not present the possibility of inconsistent factual determinations. For collateral estoppel purposes, those factors justify treating a conviction after a guilty plea differently from a conviction after a trial.

We emphasize that a defendant’s guilty plea is not without consequence in subsequent civil litigation. The defendant’s guilty plea and any other admissions made during the plea-taking colloquy with the judge are admissible as evidence in the civil litigation.

395 Mass. at 747-48.  (Emphasis added, footnotes references omitted).

It follows that if Tom’s criminal conviction resulted from a guilty plea, neither he (in the Estate’s action against him) nor the Estate (in its case against the insurer) will be precluded from relitigating the issue of Tom’s intent.

[1] The result would, of course, be different if the crime of which Tom was convicted did not require proof of his intent to harm Bob (e.g. a conviction of assault and battery with a dangerous weapon, which requires only that the defendant intentionally and unjustifiably use force, however slight, upon the person of another by means of an instrumentality capable of causing bodily injury, not an intent to cause injury).  In such a situation, there would be no identity of the issues in the criminal and civil cases and issue preclusion would not apply.