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Case Information
Filed
2023-03-23
Status
Open
Type
Miscellaneous|Par Partition, G.l. Chapter 241
Docket
23 entries
Parties
Plaintiff
Gaeta, Laura M.
Defendant
Brissenden, Mark R.
Lawyers
Docket Entries
- Complaint filed.
- Case assigned to the Fast Track per Land Court Standing Order 1:04.
- Land Court miscellaneous filing fee Receipt: 439423 Date: 03/23/2023
- Land Court surcharge Receipt: 439423 Date: 03/23/2023
- Land Court summons Receipt: 439423 Date: 03/23/2023
- Uniform Counsel Certificate for Civil Cases filed by Plaintiff.
- The case has been assigned to the F Track. Notice sent. Notice of Judge and Track Assignment was generated and sent to: Plaintiff: Leah S Duffield, Esq. [email protected] Sent On: 03/28/2023 15:05:51
- Event Scheduled Judge: Rubin, Hon. Diane R. Event: Case Management Conference Date: 05/17/2023 Time: 11:00 AM Counsel notified via email.
- Summons returned to Court with service on Mark R. Brissenden filed. Served in hand on April 4, 2023.
- Appearance of Donald J Correa, Esq. for Mark R. Brissenden, filed
- Defendant's Answer to Plaintiff's Petition for Partition, filed.
- Defendant's Motion to Stay, filed.
- Defendant's Motion to Dismiss Plaintiff's Petition for Partition, filed.
- Defendant's Memorandum of Law in Support of Defendant's Motion to Dismiss Plaintiff's Petition for Partition and Defendant's Motion to Stay, filed.
- Defendant Mark Brissenden's Counterclaim to Plaintiff Laura Gaeta's Petition for Partition, filed.
- Plaintiff, Laura Gaeta's, Answers to Defendant, Mark Brissenden's, Counterclaims, filed.
- Plaintiff's Opposition to Defendant's Motion to Dismiss, filed.
- Plaintiff's Opposition to Defendant's Motion to Stay, filed.
- Joint Case Management Memorandum, filed.
- Event Resulted: Case Management Conference scheduled on: 05/17/2023 02:00 PM Has been: Case management conference and early intervention event held via videoconference. Attorney Leah Duffield appeared on behalf of the petitioner and Attorney Donald Correa appeared on behalf of the respondent. Court is in receipt of parties' Joint Case Management Memorandum; Defendant's Motion to Stay; Defendant's Motion to Dismiss Plaintiff's Petition for Partition and memorandum of law in support thereof; Plaintiff's Opposition to Defendant's Motion to Dismiss; and Plaintiff's Opposition to Defendant's Motion to Stay. By way of background, this is a petition for partition of the property at 395 Chandler Street, Duxbury, which was owned by the parties' mother Marie Brissenden ("Marie B."), and which is currently occupied by respondent. It is reported that in 2002, Marie B. conveyed a life estate to herself with the remainder to respondent, and that in 2017, respondent executed a deed purporting to convey the property to himself and petitioner as tenants in common. Attorney Duffield advised that it is petitioner's position that the 2017 deed was executed under the direction of Marie B. (then living, but now deceased), and with her verbal consent as holder of a life estate, such that the parties now hold title to the property as tenants in common. Attorney Correa advised that it is respondent's position that Marie B.'s intent was for respondent to live in the property until his death, with the property then left to respondent's only heir and petitioner's daughter (Marie Gaeta), such that the property is now held in constructive trust for Marie Gaeta. Court discussed with counsel the cloud on title created by Marie B.'s failure to join the 2017 deed, whether Marie Gaeta should be joined as a party in this case, and the status of the probate for Marie B.'s estate, with counsel advising that the Duxbury property was not listed as an asset of the probate estate, but that an equal division of Marie B.'s other assets between petitioner and respondent resulted. Court further discussed with counsel whether the court has jurisdiction or ancillary jurisdiction over Count II (breach of contract) and Count III (tortious misrepresentation) of Respondent's Counterclaim, see G.L. c. 185, § 1(k); Ritter v. Bergmann, 72 Mass. App. Ct. 296, 302 (2008), and questioned whether the relief sought in Counts II and III differs from the relief sought in Count I (declaratory judgment) of Respondent's Counterclaim, such that he would be entitled to a jury demand. Court then inquired into the possibility of Alternative Dispute Resolution ("ADR") to assist the parties to achieve a mutually agreeable resolution in order to avoid the delay, expense, and risk of potentially lengthy litigation, particularly in light of the currently pending motions. Following colloquy, counsel each to confer with their clients as to willingness to mediate. Further case management conference and early intervention event scheduled for June 7, 2023, at 2:30 P.M., with Land Court Mediator Attorney Barbara Macy to attend, and the parties welcome to attend along with their counsel. Hon. Diane R. Rubin, Presiding Counsel notified via email.
- Event Scheduled Judge: Rubin, Hon. Diane R. Event: Case Management Conference Date: 06/07/2023 Time: 02:30 PM
- Event Resulted: Case Management Conference scheduled on: 06/07/2023 02:30 PM Has been: Further case management conference and early intervention event held via videoconference. Attorney Leah Duffield appeared on behalf of the petitioner, who was present, Attorney Donald Correa appeared on behalf of the respondent, who was present, and Land Court Mediator Attorney Barbara Macy attended. Attorney Macy first provided an overview of the land court mediation process, and Attorneys Duffield and Correa each provided background and their perspectives on the case. Following colloquy, counsel and parties to work with Attorney Macy and endeavor to reach a mutually agreeable resolution, with the court noting that the issues of title and jurisdiction (as raised in Defendant's Motion to Stay, Defendant's Motion to Dismiss, and at both case management conferences) will need to be resolved should the parties decide to litigate the case. Status conference scheduled for August 29, 2023, at 2:30 P.M., with parties to file by August 22, 2023, a joint status report advising as to the status of mediation efforts and any other matters benefitting from the court's attention. Hon. Diane R. Rubin, Presiding Counsel notified via email.
- Alternative Dispute Resolution: Early Intervention Event held. Judge: Rubin, Hon. Diane R.
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