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Phone: (508) 668-6020

Address: 15 Adrienne Rd, East Walpole, MA 02032

Sauer & Sauer Sauer Jonathan P

Family Law

Divorce
Child Custody and Visitation
One big problem with courts is that to the extent that the public owner can effectively argue the ‘public interest’ element in having the job go forward as presently constituted, most – but not all – judges are less likely to give an injunction, which in the court business is seen as an extraordinary remedy. Another problem with the court injunctive process is that one of the ‘tests’ that a plaintiff - the party seeking the injunction - must meet is that ‘there is no adequate remedy at law’. As an example, if your ex-spouse is going to fly to Bongo Bongo * tonight out of Logan with the kids in violation of previous court ordered visitation rights or joint custody agreements, the only possible justice available to you is to seek an injunction ordering her not to go. This is because of the fact that if the kids go to Bongo Bongo, the injured spouse’s ability to see his/her kids is dramatically reduced or even completely eliminated.

Criminal Law

Criminal Defense
That bears repeating. Despite what one reads in the popular press (or sees, especially, on TV or in the movies), litigation over construction contracts is not some kind of process involving “hocus-pocus”! There might be elements of “hocus-pocus” involved in the trial of criminal matters and in the trial of negligence matters. The thrust of a criminal matter is for a prosecutor to prove his case beyond a reasonable doubt. What constitutes a reasonable doubt may be a matter that is capable of a difference of opinion among reasonable people. Be honest now. How many of you thought OJ was innocent. That, uh, in his first big case.
DUI/DWI
Always refuse to take responsibility for an issue pertaining to an under-design, either on the architect's part or on the architect's engineer's part. Owners, particularly smaller municipal owners, tend to be inexperienced (dumb) as to contractual, legal and bid law matters. At least initially, they tend to listen to the architect, for better or worse, as this is the party they have had the longest relationship with. Candidly, many of their lawyers are not construction lawyers and, therefore, may not be giving the best possible advice. (I don't do wills, don't do DUI's and don't do murder defenses, unless it is for a very good client for which I might be a
Traffic Violations
Why would one do something such as this? I suppose, charitably or optimistically speaking, that one might argue that the principal’s promise to the claimant of speeding payment for the taking of a lesser amount of money might have been tied into a promise of providing this kind of assistance. For this particular principal, however, who had a history of going in and out of business for thirty years or more – faithfully filing bankruptcy as often as the Bankruptcy Code would allow (and sometimes more frequently) – this probably was that principal’s way of keeping the claimant warm, friendly and interested in supplying labor and materials to the principal once he formed his
Theft
Embezzlement
You may incur a serious obligation that isn’t covered by insurance. One of my clients closed its business when the principal got seriously injured in a skiing accident and was no longer able to serve as the general outside superintendent. Your life may change. You might get very sick. You may get divorced. You might suffer from depression. You might develop substance abuse. As you hit middle age, you might start riding motorcycles, having a girl friend, wearing too much gold jewelry or jump out of airplanes! As hard to believe as it might seem, at some point, you might simply get tired of what you do, even if it is only dealing with all of the BS which surrounds your work. I am aware of several companies which failed due to cocaine use by a principal. Similarly, I am aware of companies who went out of business because the principal had a serious gambling problem. I know of any number of companies where the company went out of business by embezzlement and employee theft of an employee. (This can particularly happen in a very small office where there is one person who seems to handle everything and who has too much access to the checking account with too much time alone in the office.) I know of any number of businesses where one day a key employee (project manager or estimator) simply suddenly quits (usually with no notice), taking with him/her the Rolodex and a variety of bids you were hoping to get, who then start immediately competing against you by working for a competitor or having started his or her own company. (You might want to take a look at my website at an article entitled “Employment Agreements for Key Employees” and make sure you have some understanding of the concept of a ‘covenant not to compete’). Many companies enjoy close relationships with major customers because of their relationship with one or two key individuals at that company, who then move on with the business being lost. Some family businesses often suffer when the founders are replaced by later generations who simply don’t have the founders’ drive or talent. I represented one general contractor for year where the kids all drove BMW’s. How does one develop the requisite toughness to be in business when one starts his life thinking that a car necessarily means a BMW? My first car was a Gremlin and it didn’t even have a back seat!
Assault
“(a) Availability of Trustee Process. Subsequent to the commencement of any personal action under these rules, except actions only for specific recovery of goods and chattels, for malicious prosecution, for slander or libel, or for assault and battery, trustee process may be used, in the manner and to the extent provided by law, but subject to the requirements of this rule, to secure satisfaction of the judgment for damages and costs which the plaintiff may recover, provided, however, that no person shall be adjudged trustee for any amount due from him to the defendant for wages or salary for personal labor or services of the defendant except on a claim that has first been reduced to judgment or otherwise authorized by law; and in no event shall the attachment exceed the limitations prescribed by law.”
Murder

Business and Corporate Law

Corporate Law
Personal liability for corporate debts is an exception to the rule as – generally speaking -under basic principles of Massachusetts corporate law, the owners of interests in corporations and limited liability companies are not generally liable for the contractual debts of that entity absent fraud. After all, that is why you do business as a corporation or as a limited liability company: to separate your business exposures and risks from your personal assets. Please keep in mind that this general principle of law has no application to contractual obligations you
Business Disputes
Contract disputes are resolved in different forums. Increasingly, alternative dispute resolution mechanisms, such as mediation, are explored at some point during the dispute process. (Mediations are a relatively quick and inexpensive procedure where a neutral person - often a lawyer or former judge - helps the parties settle their dispute in a relatively non-adversarial procedure where the parties themselves actually fashion a conclusion to their dispute rather than having that remedy dictated to them by a judge or arbitrator.) Contracts frequently provide that disputes are to be settled through arbitration. (Arbitration is an adversarial process where the parties will resolve their dispute by trial before a body such as the American Arbitration Association, where there are very few pleadings required and little discovery allowed, having the advantage of getting the parties to the trial process much more quickly than court mechanisms usually provide for.) Of course, many disputes are involved through formal litigation before administrative bodies and court, both state and federal.
Business Transactions
“One who, in the course of his business, profession or employment.. supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.” See Lawton v. Dracounis, 14 Mass. App. Ct. 165, 171 (1982). Massachusetts common law has not carved out of this generic principal a special exception for architectural plans. Furthermore, the District Court for the District of Massachusetts recently held that an exception to the economic loss doctrine permits negligent misrepresentation claims for economic recovery where the plaintiff reasonably and foreseeably relied on the defendant’ s promise to someone other than the plaintiff. The Vitetta Group. v. Town of Plymouth, C.A. 88-0882, 89-0061, slip op. at 1 (D. Mass. March 21, 1996). The Vitetta court denied summary judgment for the defendant on a claim that the plaintiff suffered economic damages in reliance on the defendant’s contract with the Town of Plymouth to perform “Professional services”.” (Emphasis added)
Limited Liability Companies
Forming a corporation or a limited liability company is not that complicated and not particularly expensive. The Massachusetts Secretary of State’s Office at “http://www.sec.state.ma.us/” has on-line forms and procedures for on-line filing of domestic profit corporations, nonprofit corporations, domestic limited partnerships and domestic limited liability companies. This is not to say that legal advice as to the appropriate business form might not be desirable or necessary. And, particularly, some advice from a very good accountant might also be useful in deciding what form of business makes sense for you from a tax standpoint. Still, I am aware of one contractor I have seen over the years who has had a number of business failures - he had this unusual idea about paying material suppliers and subcontractors: he didn’t - who would actually fill out the various forms himself in his own handwriting, creating his own corporations.
Construction Contracts
Keeping in mind that the root of the word 'contractor' is 'contract', many parties to contracts find, at different times, that they are in disagreement with their contracting parties as to essential parts of the construction contracts they are party to. These disputes may involve the amount or timing of payment, with the application of factors such as "pay-when-paid" clauses, “no damage for delay” clauses and “termination for convenience” clauses. There may be a question as to whether or not a backcharge is factually, legally or contractually proper. There may be a question as to whether or not there is a changed condition, entitling the party encountering the change to additional time to perform the changed work and/or to additional compensation on account of the changed condition. Or, there may be a question as to whether a party has been delayed or has had its performance accelerated and as to whether additional contract time and/or compensation is due on account of these factors.
Intellectual Property

Employment Law

Wrongful Termination
If there is a fly in the ointment, it is this. If the owner terminates the contractor for convenience, the owner will not be entitled to recover any damages from the contractor. So, if the owner feels that it is entitled to a large amount of damages from the contractor and that the contractor has the ability to pay those damages and that the pursuit of the contractor in court is worth the expense and the uncertainty of litigation, then the owner will have to terminate the contractor for fault or cause. In such a case, the contractor can file a counterclaim (counter-suit) against the owner for wrongful termination and seek damages, if it wishes to do so.
Employment Contract
Traditionally, this type of clause was found in leases, employment contracts and other kinds of contracts, such as so-called "requirement contracts". "Requirement contracts", such as is codified in the Uniform Commercial Code, enacted in Massachusetts as Chapter 106 of the General Laws, may be: "A lawful agreement by either the seller or the buyer for exclusive dealing in the kind of goods concerned imposes unless otherwise agreed an obligation by the seller to use best efforts to supply the goods and by the buyer to use best efforts to promote their sale." (Chapter 106, § 2-306(2) of the General Laws.)

Property Law

Real Estate Litigation
Legally, once a lien has been filed, the lienor comes ahead of any prior bank or financing company on a filed mortgage or construction financing except to the extent that monies have been already paid or committed to be paid on the date the lien is filed. So, assuming we have a ten million dollar commitment and that six million has been paid or committed to on the date a lien is filed, a lienor will come ahead of the bank for the last four million dollars of its note. Two things to know about that. First of all, this flies against the logic and practice of real estate filings, which is first in time, first in right. For a subsequent security interest to be favored over a prior security interest is something that is anathema to generally accepted principles of real estate law. And, banks will not knowingly let this happen. They may consult with periodicals such as
Premises Liability
Construction Litigation
He is the author of Scribbles, a complimentary thrice-yearly newsletter, concerning current issues in Massachusetts construction law written specifically for contractors (with lightness and humor liberally sprinkled throughout including several lawyers’ jokes in every issue, guaranteed!) He frequently speaks to various contractor and surety groups and trade associations and is the Massachusetts contributor on payment bond and mechanics’ lien law for the recently-published “Manual of Commercial Credit,” 95 th Edition. He enjoys motorcycling, reading and writing. As a frustrated novelist, he finds it necessary to have four motorcycles to handle the three mile commute to work. These vehicles are generally equally rotated (depending on how the Harley is running).
Real Estate Transactions
Massachusetts case law is not exceptionally helpful in getting a precise or all-inclusive definition of this phrase. Most of the few cases discussing this concept deal with real estate transactions and brokers' commissions. One case discusses obligations among principals in a corporation. Another arises out of a bankruptcy. In other words, the Massachusetts decisions of this phrase do not deal specifically with the competitive bid process.
Property Damage
Massachusetts has not held out much hope for negligence cases for damages against architects. This is because of the so-called ‘economic loss doctrine’. The economic loss doctrine says that a party suffering only an economic loss - i.e. a loss of money - can not sue in negligence because the cause of action requires there to either be personal injury or property damage. And, increased costs to the contractor are not ‘property damage’ when they can be reduced to a certain sum of money.

Health Law

Personal Injury
Attempting to establish whether or not a party has been negligent – breached a duty to another person, causing damage – is again a matter calling for a judgment upon which reasonable people could differ. From our own files, you be the judge! Is the manufacturer of a circular saw liable for negligence when the switch of a twenty-one year old saw which has been handled and stored rather carelessly fails, causing personal injury? Should the manufacturer of an above-ground pool be liable for serious neck injuries when a grown man who has had a few drinks dives into the pool, breaks his neck and the pool has several “Do Not Dive” labels firmly attached to the pool liner? Should a construction worker be entitled to compensation when he electrocutes himself (but not fatally) incurring great physical injury and damage when he is attempting to steal copper bus bar which he thought had no current passing through it?
Medical Malpractice
I submit that for construction cases which will go to court, there is some possibility that the actual figure for this type of case might be less than one percent. For, these statistical figures include negligence cases where the issue of ultimate liability on the part of the defendant may be seriously in question. This would include, for example, medical malpractice cases, defective product cases, premises liability cases, ice and snow cases, slip and fall cases, etc. One case I worked on many years ago was how long a switch on a circular saw had to last before its failure made the saw a defective product. The evidence was that the injured party had the circular saw for at least twenty-one years, didn’t take very good care of it (basically, kept in on a shelf underneath his work bench amid the clutter) and the switch accidentally turned on when the person wasn’t expecting it, gashing his leg. Since liability in that kind of case is more likely to be contested - nothing lasts forever - the presence of an insurance company behind the defendant anxious to keep the loss down – makes a trial more likely.
Auto Accidents

Trusts and Estates

Estate Planning
Some of what is discussed below is applicable to general estate planning for anyone: not just limited to those who execute general indemnity agreements to secure bonds.
Wills
Do not have a wills and estates or divorce lawyer do this work. Law is like medicine in this regard: people specialize. Any lawyer who has an ad somewhere stating that s/he does wills and estates work, family (divorce) law, criminal law, real estate law and personal injury law means that the lawyer, in all likelihood, is not very good at any of them. In fact, s/he is likely to simply stink at most of them. For, even just one area of the law – such as construction law – there is so much to know! Have someone review the contract who knows what s/he is doing. Don’t have some non-construction lawyer within your family or group of friends review such documents, even if they’ll review the documents for free. They simply won’t have much of an idea as to what they are doing and as to how you should be best protected.
Probate

Finance Law

Bankruptcy
Thirdly, most sureties I have dealt with are very open to repayment plans from indemnitors over a period of time with a lower than legal rate of interest (which in Massachusetts for contract actions could be 12%.) If you have four individual indemnitors and they all join in on the plan of repayment – or make separate offers at about the same time - you might be able to get the surety to accept less than one hundred percent liability as to any one indemnitor. That might be useful in situations where one or more of the other individual indemnitors is able to avoid its indemnity obligation for one reason or another (e.g. filed personal bankruptcy) down the road.
Foreclosure
I have noticed that many of our construction clients are complaining about being slow. On top of that, the news is that May, 2007 had a record number of residential foreclosures. Also, in the last several years, there have been a number of significant general contractor bankruptcies and insolvencies, hurting all manner of material suppliers and subcontractors (and general contractors who sometimes work as subcontractors). Thus, notwithstanding fairly consistent record and near-record Dow Jones’ averages, there is other indicia that the economy isn’t doing all that well, with high gas prices, concerns about a war that simply refuses to end, concerns over global warming and the uncertainties of a change in leadership for 2008. In all likelihood, your company is carrying more accounts receivable presently than it did in its better years.
Tax Law

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