Pierce & Mandell, P.C.

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Pierce & Mandell Probate Lawyers Secure Appeals Court Victory In Case Involving Interpretation Of A Will

Thursday, June 22, 2017

Scott Zanolli, Pierce & MandelMichael Fee, Pierce & MandelBy: Michael C. Fee and Scott M. Zanolli

The Massachusetts Appeals Court recently affirmed a decision by Judge Virginia Ward, of the Suffolk County Probate Court, granting summary judgment to Pierce & Mandell’s client in a lawsuit seeking a declaration regarding the interpretation of a will. Michael C. Fee argued the case before the three-justice panel, and Scott M. Zanolli and Curtis B. Dooling assisted in drafting the brief.

The will at issue was prepared on behalf of the testatrix by her long-time companion at a time when she was suffering from terminal illness. The will made specific bequests of personal and real property, but omitted her interest as tenant in common with her brother in the family home. After her death, and her brother’s subsequent death, disputes arose regarding ownership of the real estate, and Pierce & Mandell’s probate litigators took the case to court in Boston.

After Pierce & Mandell secured summary judgment in its client’s favor, opposing counsel sought further review before the Appeals Court. The sole issue on appeal was whether the will’s residuary clause requiring a bequest of “any monies remaining in [testatrix’s] estate,” included by implication her one-half interest in real property. The clause at issue read specifically as follows:

“B. Residuary estate

“I direct that any monies remaining in my estate be given to my partner . . . , and, upon his death, to the . . . Center for the Creative Arts . . . ”

Michael C. Fee argued that the term “monies” in the will was not sufficient to devise real estate, and the Appeals Court agreed. The Court held:

Our case law has also eschewed the broader meaning [of monies] . . .. In our view, the rule of thumb in these circumstances is that “money” should be construed as commonly understood, unless “a reading of the whole will produces a conviction that the testator must necessarily have intended” the broader meaning. Metcalf v. First Parish in Framingham, 128 Mass. 370, 374 (1880). Nothing in the language or context of [the testatrix’s] will supports the broader interpretation.

Moreover, the Court expressly rejected the opposition’s argument that the caption “Residuary estate,” supported a broad interpretation of the word “monies” because, “[a]s English professors and writers, [the testatrix] would have selected a title that described in concise fashion what Article 2B was about.” Specifically, the Court stated:

One might equally expect English professors and writers to be precise in their choice of words, and not to have written “monies” if they meant “anything else.” See Strunk & White, The Elements of Style 21 (4th ed. 2000) (“If those who have studied the art of writing are in accord on any one point, it is on this: the surest way to arouse and hold the reader's attention is by being specific, definite, and concrete”).

Finally, the Court acknowledged that in interpreting wills under Massachusetts law there is generally a presumption against intestacy, and that “’a construction of a will resulting in intestacy is not to be adopted unless plainly required; and it is to be presumed that when a will is made the testator intended a disposition of all [her] property and did not intend to leave an intestate estate.’ Lyman v. Sohier, 266 Mass. 4, 8 (1929).” However, in this instance, nothing in the will’s language and the circumstances surrounding the execution of the will, demonstrated the testatrix’s intent with respect to her interest in the real estate.

Pierce & Mandell attorneys Michael C. Fee and Scott M. Zanolli regularly litigate in Probate Court in Boston, and throughout Massachusetts. Together they handle a variety of probate litigation and trust litigation cases including petitions for formal appointment of a personal representative, petitions for probate of wills, will contests, undue influence cases, contested accountings by personal representatives, trust petitions for allowance of accounts, contested trust accountings, and petitions for removal of trustees.

A full copy of the opinion can be found at Roth v. Newpol, 91 Mass. App. Ct. 609 (2017).

Pierce & Mandell Partners Recognized as Super Lawyers - Boston, MA

Wednesday, May 24, 2017

Pierce & Mandell, P.C. is proud to announce that partners Bob Pierce, Bill Mandell, Thomas E. Kenney, Michael Fee, Bob Kirby and Dennis Lindgren have been selected for inclusion in the 2017 Massachusetts Super Lawyers.

Bob Pierce was recognized as a Super Lawyer in the practice of Civil Litigation Defense, Bill Mandell in Health Care Law, Dennis Lindgren in Personal Injury General: Plaintiff and Tom Kenney, Michael Fee and Bob Kirby in Business Litigation.

Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process is multi-phased and includes independent research, peer nominations, and peer evaluations. Rising Stars are those attorneys under the age of 40 who have been nominated by peers for excellence in their chosen practice area. Candidates are then evaluated utilizing twelve indicators of peer recognition and professional achievement. No more than 3 percent of eligible lawyers in Massachusetts are named to the Rising Star list each year.

The Super Lawyers supplement will be published in the November, 2017 issue of Boston Magazine and is widely distributed in regional publications and across the country.

For information or assistance from Pierce & Mandell, P.C., contact us.

Bill Mandell was Quoted in the April 2017 Emergency Department Legal Letter Article

Thursday, April 06, 2017

Pierce & Mandell, Curtis DoolingBill Mandell was quoted in the April 2017 Emergency Department Legal Letter article on visitors and guns in hospital emergency departments and suggested a useful policies for hospitals to consider.


Attorney Curtis Dooling Serves as Panelist for MCLE Practicing with Professionalism Course

Wednesday, March 22, 2017

Pierce & Mandell, Curtis DoolingAll newly admitted lawyers in Massachusetts are required to take a one-day professionalism course within 18 months of admission. The day-long course, which is run by Massachusetts Continuing Legal Education (MCLE), covers a variety of topics, including ethics and professional conduct, court practice and successful attorney-client relationships.

MCLE recently invited Pierce & Mandell’s Curtis Dooling to sit on a lunchtime panel as part of the professionalism course. Dooling and three other panelists spoke to attendees and answered questions on such varied topics as balancing work and family, dealing with intransigent opposing counsel and career development.

On participating in the Practicing with Professionalism course, Dooling noted, “I found the discussion to be instructive and enjoyable and I was honored to be invited back by MCLE to be a panelist. I tried to provide some practical advice to the newly-admitted attorneys, advice I would have liked to receive when I was a newly admitted lawyer. The discussion focused on real-life issues, such as client relationships and career development, that aren’t taught in law school. I look forward to participating in more MCLE curricula in the future.”

Robert Kirby Argues Privacy Case in the SJC

Friday, March 10, 2017

Pierce & Madell, Boston, MA, Robert L. Kirby, JrBy Robert L. Kirby, Jr.

Ajemian v. Yahoo! Inc.: On March 9, Robert Kirby argued before the Supreme Judicial Court in a case of first impression. The issue before the Court was whether the federal Stored Communications Act, 18 U.S.C. 2701, et seq. bars providers of electronic communication services (in this case, Yahoo!) from divulging the contents of a deceased account holder's account to the personal representatives of the decedent. Read more here.

Dooling Wins Premises Liability Jury Trial in Berkshire County

Thursday, February 02, 2017

Curt Dooling recently obtained a defense verdict on behalf of his clients in a jury trial in the Pittsfield District Court in Berkshire County.

The plaintiff sustained multiple leg fractures after tripping over an entrance rug in a convenience store in Pittsfield, Massachusetts. Dooling represented the owner and operator of the convenience store. The plaintiff alleged that the entrance rug on which he tripped was defective because it failed to comply with American National Standard B101.6, the Standard Guide for Commercial Entrance Matting. The plaintiff also claimed that the store failed to properly secure the mat to the floor, which created a tripping hazard.

Before the trial began, Dooling filed a motion in limine to exclude any evidence regarding the size and type of the entrance rug on which the plaintiff tripped and whether the rug complied with any industry standard or regulation. The trial judge allowed Dooling’s motion in limine, and as a result, the plaintiff was foreclosed from presenting evidence in support of key elements of his theory of liability.

The jury deliberated for less than one hour and returned a defense verdict, determining that Pierce & Mandell’s clients were not negligent.

Supreme Judicial Court Takes Appeal in Case Involving the Stored Communications Act

Tuesday, December 20, 2016

Pierce & Madell, Boston, MA, Robert L. Kirby, JrBy Robert L. Kirby, Jr.

In Ajemian v. Yahoo!, we represent the personal representatives of an estate seeking to gain access to the contents of a decedent’s Yahoo! email account. The Probate Court ruled that the Stored Communications Act, 18 U.S.C. 2701 et. seq., prohibited Yahoo! from divulging the contents of the email account to the personal representatives. We appealed. The Supreme Judicial Court has, sua sponte, transferred the appeal from the Appeals Court. We expect the Supreme Judicial Court to hear the appeal in early 2017.

BOB PIERCE SUCCESSFULLY TRIES FOUR JURY CASES IN 2016

Thursday, December 15, 2016

Founding shareholder Bob Pierce took four cases to jury trials in 2016. The cases were tried in four separate superior courts: Essex (Newburyport), Middlesex, Suffolk, and Dukes County (Martha’s Vineyard). In three of the cases, Bob achieved defense verdicts on behalf of his clients; in the fourth, the case settled after several days of trial based on a payment of less than 10% of plaintiff’s pre-trial demand.

Two of the cases were tort cases with large claimed damages. In one case, the plaintiff suffered a herniated disc in her back, which was exacerbated by a botched surgery which required multiple surgeries to correct. The plaintiff had well over $300,000 in medical bills.  Despite the substantial damages and a sympathetic plaintiff, the jury returned a defense verdict for Bob’s client.

In the second tort case, the plaintiff claimed a serious brain injury, and over $1 Million in lost earnings.  Once again, the jury returned a defense verdict, awarding the plaintiff nothing.

The third case involved claims by the plaintiff that the defendants, one of whom was defended by Pierce & Mandell attorney Lena Finnerty, had made false statements to the police about the plaintiff’s actions. As a result of these alleged false statements, the plaintiff was arrested, and charged with crimes. The plaintiff’s arrest generated substantial publicity in Boston newspapers and TV news. The plaintiff claimed that the arrest and attendant publicity caused her to lose substantial money in connection with the business she ran. Specifically, plaintiff claimed well over $1 Million in lost income. However, as a result of rulings on motions in limine in favor of the defense, and the inability of the plaintiff to obtain favorable testimony from the six witnesses who testified at trial, the case settled for a modest amount that was a fraction of the pre-trial demand.

The fourth case was a product liability case in which the plaintiff lost his left eye. The case was tried on Martha’s Vineyard, and the plaintiff was very sympathetic because he had obviously suffered an extremely serious and life changing injury. After a trial spanning close to two weeks, the jury returned a verdict in Bob’s client’s favor and awarded the plaintiff nothing.

PIERCE and DOOLING WIN PRODUCT LIABILITY TRIAL ON MARTHA’S VINEYARD

Wednesday, December 14, 2016

Pierce & Mandell, Robert Pierce, Boston, MAPierce & Mandell, Curtis Dooling, Boston, MABob Pierce and Curt Dooling recently obtained a defense verdict on behalf of their client in a jury trial in Dukes County Superior Court on Martha’s Vineyard.

The plaintiff in the case sustained a serious eye injury, which eventually led to the loss of the plaintiff’s eye, when he was struck with a golf disc designed and manufactured by Pierce & Mandell’s client. The plaintiff claimed that the golf disc that struck and injured him was dangerously defective because of its design and because it lacked proper warnings alerting users to its dangers. The firm challenged the plaintiff’s credibility by showing that the plaintiff’s version of how he was injured was not credible based on witness testimony and relevant medical records. The firm also successfully argued that the golf disc was not dangerously defective.

The case was challenging due to the very serious injury that the plaintiff suffered, and the fact that the individual who threw the disc that struck the plaintiff was no longer living in the United States and was unable to testify at trial.  Rather, his deposition testimony was read to the jury.

The case was tried over 6 days, and the jury deliberated for approximately 7 hours. The jury determined that Pierce & Mandell’s client did not breach the warranty of merchantability and that the golf disc was not dangerously defective.

Bob Pierce has now achieved complete victory for his clients in the last eight jury cases that went to verdict.

Bill Mandell: Faculty at the MCLE Annual Massachusetts Health and Hospital Law Conference 12 years in a Row

Tuesday, December 06, 2016

Pierce & Mandell, PC, Bill Mandell, Boston, MAFor the 12th year in a row Pierce & Mandell, P.C.’s Bill Mandell, was a faculty member at the MCLE Annual Massachusetts Health and Hospital Law, 2-day conference on November 21 and 22, 2016.  Bill co-presented the panel on the law of physicians. He is also a co-author of the related MCLE publication, the Massachusetts Health and Hospital Law Manual. Bill just finished working on an update to the Chapter on Physicians and it will be published sometime next year when MCLE issues the 2017 edition of the Massachusetts Health and Hospital Law Manual. For more information about this publication, click here.


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