Victory in motion to withdraw stipulation to violation of probation

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On July 9, 2025, I successfully argued a motion to allow my client to withdraw his stipulation to a probation violation. The client was alleged to have violated his probation and, under the advice of counsel, stipulated to the violation and a sentence of five to seven years in state prison. Days later, he began to question whether he received good advice. After being retained, I discovered that the client was improperly advised by the prosecutor that he faced a five year mandatory minimum when in fact he faced no such minimum sentence. We successfully filed a motion to withdraw the petition on the grounds that the client was unable to make a knowing and intelligent waiver of his right to a hearing when he was misinformed about the mandatory minimum. The trial court allowed him to withdraw the petition so Mr. Postell could contest the violation of probation and get his day in court.

Case: Commonwealth v. Jerry Postell, Bristol County Superior Court docket 2373PT00238

Practice Focus: Post-Trial and Appellate Law

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appealscourtroomOne of my firm’s key practice areas is handling criminal and civil appeals. An appeal happens when a party loses at trial, either because of a judge’s decision or a jury’s verdict, and wants to try to challenge the outcome. This area of practice is highly specialized because special rules and procedures apply that are very different from those at the trial level.

I have over a decade of experience representing parties in post-trial matters. I am currently a member of the Committee for Public Counsel Services Criminal Post Conviction and Appeals panel and the Children and Family Law Appeals panel. Take a look at the representative cases page for a small sample of some of the Appeals Court decisions that I have litigated.

If you are an attorney and need to refer an appellate matter, or a person or business who needs post-trial or post-conviction relief, please give my firm a call.

Victory in OUI Motion for New Trial

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fitchburgdc-450x299The defendant was accused of operating under the influence of alcohol. The arresting officer claimed that the defendant was heavily intoxicated, though the Commonwealth presented no evidence of field sobriety tests. The defendant was convicted, and KPDM Law LLC was retained to review the case for appeal.

After a thorough review of the transcript, and conducting an eyewitness interview, it was discovered that trial counsel had neglected to thoroughly interview a key witness who was present at the scene of the arrest. Although trial counsel did speak to the witness, she stopped asking the witness questions after the witness confessed that she did not witness the field sobriety tests. Had trial counsel inquired further, she would have discovered that the eyewitness spoke to the defendant at the scene of the arrest and could have disputed the officer’s testimony that the defendant was intoxicated.

In a Motion for New Trial, we argued that trial counsel was ineffective in failing to properly conduct the witness interview. We argued that trial counsel’s failure was not strategic or tactical, but rather a failure to properly investigate the case that deprived the defendant of effective representation. The trial court agreed and allowed our Motion for New Trial.

Victory in Eminent Domain Case

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union_sqI’m happy to report that the Massachusetts Superior Court rendered a favorable decision based on a brief that I wrote in an eminent domain case. This eminent domain case involved the Somerville Redevelopment Authority’s takings of multiple parcels of real property in the Union Square area. The City of Somerville made the takings in connection with an expansion of the MBTA’s Green Line, as well as a redevelopment of the Union Square area.

The owners of the parcels, one of whom I represented, disputed the amount that the City of Somerville tendered when the City took the properties by eminent domain. The City of Somerville argued that based on the “project influence rule,” the value of the properties should be determined based on valuations in 2003, when the project to revitalize Union Square was first announced. The City sought to exclude any evidence of valuations of the property after 2003. That interpretation of the project influence rule would essentially freeze the property values at 2003 levels.

I, along with attorney John S. Leonard, drafted briefs opposing the City’s interpretation of the project influence rule. The court denied the City’s motion, and agreed with our interpretation of the project influence rule. The Court ruled that our client’s evidence regarding the value of the properties at the time of the taking was admissible, and could be considered along with the City’s evidence. That meant that our clients could argue that the properties taken by the City should be valued closer to their current values, not their 2003 values.

The full text of the court’s decision is available here.

If You Own a Corporation or LLC, You Must Be Represented By An Attorney In Court

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judge_robeOften, and particularly in landlord tenant matters, business owners will try to represent themselves in Court. In the legal world, we call this pro se representation, and it is usually driven by the cost of hiring an attorney. While individuals are allowed to represent themselves in court, corporations or limited liability companies cannot do so, except in small claims cases. See Varney Enterprises, Inc. v. WMF, Inc., 402 Mass. 79, 79 (1988). If a corporation or limited liability company owner tries to appear in court on behalf of their company, the company can be defaulted.

As a practical matter, this means that if you are a landlord, but your business is run through a corporation or limited liability company, you must hire an attorney to pursue an eviction or respoind to a lawsuit. Likewise, if a customer or vendor sues your company, you must hire an attorney to represent the corporation or limited liability company or you risk a default. If the court defaults you, it means the other party has won the case. A default can subject you or your company to monetary damages.

If you do get defaulted, you should seek an experienced attorney immediately. It may be possible to get the default removed and the case reinstated, but this requires quick action by competent counsel. In fact, the best legal advice anyone can give you is to retain competent legal counsel whenever you interact with the legal system. While it may seem expensive at first, in the long run a good attorney will save you headaches, financial pitfalls, and allow you more time to focus on what you do best.

After My Boss Hired Me, He Sent Me a 1099 And Told Me I Was An Independent Contractor – Is That Legal?

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worker-classificationThe answer is, probably not. Massachusetts law defines when an employee can be paid as an independent contractor, and when he or she must be paid as an employee. See G.L. c. 149 §148B. If you work under the direct supervision and control of your boss, in the same line of business that your boss performs, you are likely required to be paid as an employee.

For example, if you were hired as a plumber, go where and when your boss tells you to go, and your boss is a plumber, then you are likely an employee and not an independent contractor. In that case, your boss cannot pay you as an independent contractor. If he does, he is likely in violation of Massachusetts law.

When an employer wrongfully pays an employee as an independent contractor, it is called employee misclassification, and it can entitle the wronged employee to significant damages. Often times, an employee can recover two or three times his damages and attorneys fees. If you feel you have been misclassified as an independent contractor, you should contact me immediately. If you are an employer and have questions about employee classification, you should contact me to ensure you are in compliance and avoid a costly mistake.

New Overtime Rules Mean A Lot More Employees Will Qualify for Overtime

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US-dept-of-laborIf you are an employee working in a managerial, administrative, or professional position, you likely know two things: 1) your employer can pay you a salary, and 2) when you earn a salary, you don’t get paid for overtime. What you may not know is that the Department of Labor sets a minimum salary that an employer must pay in order to avoid having to pay you overtime. Currently, that minimum is only $23,660 annually. See 29 CFR Part 541. However, Department of Labor just increased that minimum to $47,476, effective December 1, 2016. See Department of Labor’s Summary of the Final Rule.

What this means is that formerly salaried employees earning less than $47,476 will have to be paid hourly and be entitled to overtime as of December 1, 2016. For many employees, including low-level managers at fast food chains, retail stores, and restaurants, this change should translate into a tremendous pay boost. For employers, this new rule could be a huge headache.

If you are an employee and believe that you are being unfairly denied overtime wages, you should call my firm. If your employer is violating the Fair Labor Standards Act or the Massachusetts Wage Act, you may be entitled to double or triple your back pay, and in some cases, attorneys fees.

If you are an employer and have questions about how these new regulations will affect your business, you should call my firm. Federal case law makes clear that if the employer makes a good faith effort to comply with the Fair Labor Standards Act by obtaining the advice of counsel, the employer can avoid paying damages. Make sure you are protected.

Appeals Court Victory in Quiet Title Action

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I am pleased to announce that my client obtained a victory in Appeals Court this week. In Golrick vs. U.S. Bank, National Association, the Massachusetts Appeals Court upheld a trial court decision appeals-courtroom-019-463x347on a quiet title action filed by the former owner of the property, Jeanne Golrick. Golrick claimed that there were issues with the foreclosure performed by my client, U.S. Bank, and  that vested title with her. My firm successfully defended this quiet title claim at trial, and Golrick appealed.

I drafted the appeal brief, and the Court agreed with my client that Golrick’s claims lacked merit and that title should be vested with U.S. Bank. The text of the opinion can be found here: Golrick v. United States Bank Nat’l Ass’n, 2016 Mass. App. Unpub. LEXIS 441 (Mass. App. Ct. Apr. 22, 2016).

Supreme Judicial Court Issues Decision Strengthening Rights of Condominium Associations in Condo Fee Collection Actions

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The Massachusetts Supreme Judicial Court has just issued a decision that will serve to strengthen the already favorable statutory scheme that allows condominium associations to Appeals Courtobtain priority liens in condo fee collection cases. The decision in Drummer Boy Homes Association, Inc. vs. Britton, SJC-11969, decided March 29, 2016, relies heavily on the Court’s interpretation of the Legislature’s intent in the condominium statute, Massachusetts General Laws chapter 183. According to the SJC, that intent was to provide condo associations with the necessary tools to ensure that condo fees are recovered so that associations can maintain properties and prevent community blight.

The dispute in Drummer Boy centers on the nature of the priority lien provided by Massachusetts G.L. c. 183 s. 6. That statute allows condo associations to file an action and obtain a priority lien for the prior six months of unpaid condo fees. The priority lien takes precedence over most others on title, including mortgages. Since the statute only provides this lien priority for the prior six months of dues, the common practice was for condo associations to file successive actions every six months to obtain priority liens for continuing unpaid dues.

In Drummer Boy, the Defendant challenged the condo fee’s right under the statute to bring these successive actions. Although the Massachusetts Appeals Court agreed with the Defendant, the Supreme Judicial Court overturned the Appeals Court and decided that a condominium association may file successive actions to create priority liens for continuing unpaid dues after the first six months.

The Drummer Boy decision means that condominium associations continue to retain powerful tools to collect unpaid dues, including the power to obtain priority liens on the unit for all unpaid dues.  The Drummer Boy decision also affirmed the condominium association’s rights to obtain all legal fees expended in collecting condominium fees. Condominium associations facing members who fail to pay dues should not hesitate to contact an attorney to seek collection of unpaid dues.

Recent Department of Industrial Accidents Decision Highlights Delays in System and Underscores Advantages of Settlement

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Decisions in Workers Compensation cases, per state law, are supposed to be issued by the judge within 28 days of the hearing. Despite this clear rule outlined in Massachusetts General Laws c. 152 s. 11, however, judges in the Department of Industrial Accidents, which is responsible for hearing workers compensation cases, often do not issue their decisions for six months to a year following the hearing.

In a recent case just decided by the Department of Industrial Accidents, In Re: Albert Mancini, the judge took over three years to issue his decision. For most people, waiting three years post-hearing, while benefits are dwindling or unavailable, is just not practical. While both parties in the Mancini case complained about the delay in issuing the decision, the statute provided no remedy to either party for the delay. While the Department acknowledged the problems created by the delay, such acknowledgment was little comfort to the parties who waited three years for a decision on the merits of the case.

While parties often want their day in court, often times a settlement is the more practical means of resolving workers compensation and personal injury matters. Even if a party is successful at trial, the other party can appeal and further delay a ruling. Though a settlement may be less gratifying than a judge’s or jury’s award, a settlement typically means immediate compensation for the injured party and a timely resolution to the case.