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Case Information
Filed
2022-07-19
Status
Closed
Type
Ota Other
Docket
56 entries
Disposition
judgment entered
Parties
Plaintiff
Berio, Michele V.
Defendant
Town Of Clinton|Kittredge, Jr., John P.
Lawyers
Docket Entries
- Judgment and Execution Satisfied, filed.
- Case assigned to the Average Track per Land Court Standing Order 1:04.
- Land Court miscellaneous filing fee Receipt: 432579 Date: 07/19/2022
- Land Court surcharge Receipt: 432579 Date: 07/19/2022
- Land Court summons Receipt: 432579 Date: 07/19/2022
- Uniform Counsel Certificate for Civil Cases filed by Plaintiff.
- Request for Interdepartmental Judicial Assignment, filed.
- Letter from Executive Office of the Trial Court regarding action it took on the Request for Interdepartmental Judicial Assignment. They will be taking no action on the request.
- Affidavit of Acceptance of Service on Complaint, filed.
- The case has been assigned to the A Track. Notice sent. Notice of Judge and Track Assignment was generated and sent to: Plaintiff: Thomas O Moriarty, Esq. [email protected] Plaintiff: Kimberly Bielan, Esq. [email protected] Defendant: Robert B Gibbons, Esq. [email protected] Sent On: 07/29/2022 12:09:54
- Event Scheduled Judge: Rubin, Hon. Diane R. Event: Case Management Conference Date: 08/18/2022 Time: 11:30 AM Counsel notified via email.
- Plaintiff's Motion for the Court to Request Interdepartmental Judicial Assignment, filed.
- Appearance of Meghan E Hall, Esq. for Michele V. Berio, filed
- Appearance of Robert B Gibbons, Esq., William Jacob Morrissey, Esq. for Town of Clinton, John P. Kittredge, Jr. In his capacity as Duly appointed Tax Title Custodian for the Town of Clinton, filed
- Defendants' Opposition to Plaintiff's Motion for the Court to Request Interdepartmental Judicial Assignment, filed.
- Defendant's Motion to Dismiss or Transfer Case, filed.
- Defendants' Memorandum of Law in Support of Motion to Dismiss or Transfer Case, filed.
- Joint Case Management Conference Memorandum, filed.
- Plaintiff Michelle V. Berio's Opposition to the Defendant's Motion to Dismiss or Transfer, filed.
- Plaintiff's Response to Defendants' Statement of Facts and Statement of Additional Facts, filed.
- Event Resulted: Case Management Conference scheduled on: 08/18/2022 11:30 AM Has been: Case management conference held via videoconference. Attorney Thomas Moriarty appeared on behalf of the plaintiff and Attorney Robert Gibbons appeared on behalf of the defendants. Court is in receipt of: Plaintiff's Motion for the Court to Request Interdepartmental Judicial Assignment; Defendants' Opposition to Plaintiff's Motion for the Court to Request Interdepartmental Judicial Assignment; Defendant's Motion to Dismiss or Transfer Case; Defendants' Memorandum of Law in Support of Defendant's Motion to Dismiss or Transfer Case; Plaintiff Michelle V. Berio's Opposition to the Defendant's Motion to Dismiss or Transfer; Plaintiff's Response to Defendants' Statement of Facts and Statement of Additional Facts; and Joint Case Management Conference Memorandum. Court discussed with counsel the motion for the court to request interdepartmental judicial assignment, motion to dismiss, and whether the Land Court has jurisdiction over this matter. Following colloquy, parties to file any supplemental briefing on Plaintiff's Motion for the Court to Request Interdepartmental Judicial Assignment by August 25, 2022, with court to take the motion under advisement at such time. Court DEFERRED ruling on Defendant's Motion to Dismiss or Transfer. Hon. Diane R. Rubin, Presiding Counsel notified via email.
- Plaintiff's Supplemental Memorandum in Support of her Motion for the Court to Request Interdepartmental Judicial Assignment, filed
- Request for Transfer of Pending Land Court Action to the Superior Court Berio v. Town of Clinton, Land Court No. 22 MISC 000373 (Worcester County), sent to Chief Justice Locke from Judge Rubin of the Land Court. Judge: Rubin, Hon. Diane R.
- Chief Justice of the Trial Court Order of Transfer and Assignment dated October 12, 2022.
- Scheduled Judge: Rubin, Hon. Diane R. Event: Status Conference Date: 12/12/2022 Time: 02:30 PM Counsel notified via email.
- Event Resulted: Status Conference scheduled on: 12/12/2022 02:30 PM Has been: Rescheduled to December 20, 2022 at 2:00 pm at the request of counsel and by agreement of the court. Hon. Diane R. Rubin, Presiding
- Scheduled Judge: Rubin, Hon. Diane R. Event: Status Conference Date: 12/20/2022 Time: 02:00 PM Counsel notified via email.
- Event Resulted: Status Conference scheduled on: 12/20/2022 02:00 PM Has been: Rescheduled to January 13, 2023 at 2:30 pm, per order of the court. Counsel will be filing a Joint Status Report by January 9, 2023. Hon. Diane R. Rubin, Presiding
- Scheduled Judge: Rubin, Hon. Diane R. Event: Status Conference Date: 01/13/2023 Time: 02:30 PM Counsel notified via email.
- Joint Status Report, filed.
- Event Resulted: Status Conference scheduled on: 01/13/2023 02:30 PM Has been: Status conference held via videoconference. Attorney Thomas Moriarty appeared on behalf of the plaintiff and Attorney Robert Gibbons appeared on behalf of the defendants. Court is in receipt of the parties' Joint Status Report. Court noted the Chief Justice of the Trial Court's Order of Transfer and Assignment dated October 12, 2022, transferring this case to the Superior Court and authorizing and allowing Justice Diane Rubin to sit as a Justice of the Superior Court Department to preside over this matter. Counsel jointly advised that, from their perspectives, discovery is not necessary, and they intend to resolve this case through dispositive motions. Court discussed with counsel whether this case is more suitable for motions for summary judgment or for motions for judgment on a case stated. Following colloquy, parties to proceed with motions for judgment on a case stated, with a briefing schedule set as follows: Agreed Upon Statement of Facts to be filed by April 7, 2023; briefs to be filed by May 8, 2023; any replies to be filed by May 22, 2023; and hearing scheduled for June 7, 2023, at 2:00 P.M. Hon. Diane R. Rubin, Presiding Counsel notified via email.
- Scheduled Judge: Rubin, Hon. Diane R. Event: Motion Date: 06/07/2023 Time: 02:00 PM
- Joint Statement of Agreed-Upon Facts, filed.
- Assented-to Motion to Extend Time to File Motion for Judgment on a Case State and to Continue Hearing, filed and ALLOWED. Motions for Judgment on a Case Stated basis to be filed on June 16, 2023. The hearing has been rescheduled to August 23, 2023 at 9:30 am. Counsel notified via email. Judge: Rubin, Hon. Diane R.
- Event Resulted: Motion scheduled on: 06/07/2023 02:00 PM Has been: Rescheduled Hon. Diane R. Rubin, Presiding
- Scheduled Judge: Rubin, Hon. Diane R. Event: Motion Date: 08/23/2023 Time: 09:30 AM
- Defendants' Brief in Support of Judgment on Case Stated, filed.
- Plaintiff's Motion for Judgment on a Case Stated, filed.
- Memorandum in Support of Plaintiff's Motion for Judgment on a Case Stated, filed.
- Withdrawal of Meghan E Hall, Esq. for Michele V. Berio, filed
- Event Resulted: Motion scheduled on: 08/23/2023 09:30 AM Has been: Hearing held via videoconference on the parties' cross-motions for judgment on a case stated. Attorney Thomas Moriarty appeared on behalf of the plaintiff and Attorney Robert Gibbons appeared on behalf of the defendant, with plaintiff Michele Berio in attendance. Before the court were a Joint Statement of Agreed-Upon Facts, Joint Appendix, Defendants' Brief in Support of Judgment on Case Stated, Plaintiff's Motion for Judgment on a Case Stated, and Memorandum in Support of Plaintiff's Motion for Judgment on a Case Stated. Following hearing and at the request of the court, the parties to file supplemental briefs and/or a supplemental statement of agreed-upon facts, to clarify certain issues raised during the hearing, specifically: (1) What property and/or reserved rights were retained by the Declarant of the River's Edge Condominium after the expiration of the phasing rights, together with an explanation of the basis for such retention; (2) What real estate was included in the Memorandum of Sale for 525 Water Street, Clinton, MA, Exhibit Q to the Joint Appendix, together with an explanation of the basis for inclusion; and (3) Assuming the Town is correct that the Declarant retained property and/or rights after the expiration of the phasing rights, what is the nature and extent of those property rights or interests Parties to file supplemental briefs and/or a supplemental statement of agreed-upon facts addressing these questions by September 29, 2023, together with any other briefing as may be helpful to the court. Upon receipt, the court will take this case under advisement, unless either party requests a further hearing. Hon. Diane R. Rubin, Presiding Counsel notified via email.
- Joint Motion to Extend Date to File Supplemental Briefing, filed and ALLOWED. The Date has been Extended to October 13, 2023. Counsel notified via email. Judge: Rubin, Hon. Diane R.
- Defendants' Supplemental Brief in Support of Judgment on a Case Stated, filed.
- Supplemental Memorandum in Support of Plaintiff's Motion for Judgment on a Case Stated, filed.
- Decision and Order on a Case Stated, issued. (Copies emailed to Attorneys Thomas Moriarty, Kimberly Bielan, and Robert Gibbons) Judge: Rubin, Hon. Diane R.
- Judgment entered. (Copies emailed to Attorneys Thomas Moriarty, Kimberly Bielan, and Robert Gibbons) Judge: Rubin, Hon. Diane R.
- Request for Writ of Execution, filed.
- Writ of Execution, issued. (Original mailed via USPS to Attorney Kimberly A. Bielan and copies emailed to Attorneys Thomas O. Moriarty, Kimberly A. Bielan, and Robert B. Gibbons) Judge: Rubin, Hon. Diane R.
- Plaintiff's Motion to Amend Writ of Execution, filed.
- Memorandum of Law in Support of Plaintiff's Motion to Amend Writ of Execution, filed.
- Notice of Docket Entry: Any Oppositions to "Plaintiff's Motion to Amend Writ of Execution" are to be filed by July 12, 2024. Counsel notified via email. Judge: Rubin, Hon. Diane R.
- Defendants' Opposition to Plaintiff's Motion to Amend Writ of Execution, filed.
- Scheduled Judge: Rubin, Hon. Diane R. Event: Motion VIA ZOOM. Date: 09/04/2024 Time: 10:30 AM Counsel notified via email.
- Event Resulted: Motion scheduled on: 09/04/2024 10:30 AM Has been: Motion held via videoconference. Attorney Thomas Moriarty appeared on behalf of the plaintiff, with Attorney Kimberly Bielan observing, and Robert Gibbons appeared on behalf of the defendant. Court is in receipt of plaintiff's Motion to Amend Writ of Execution and defendants' Opposition to Plaintiff's Motion to Amend Writ of Execution. Following argument, for the reasons set forth on the record, in the plaintiff's memorandum and below, the plaintiff's motion is ALLOWED. Court concurs with plaintiff that she is entitled to an amended writ of execution, granting her prejudgment interest under G.L. c 231 6C. That section provides that "[i]n all actions based on contractual obligations, upon finding or order for judgment for pecuniary damages, interest shall be added by the clerk of the court at the rate of twelve per cent per annum from the date of the breach or demand." Here, plaintiff recovered on a claim for breach of contract, specifically a Purchase and Sale Agreement, and accordingly interest shall be added to the monetary award and the execution amended. I reject defendant's argument that language of the Purchase and Sale Agreement precludes an award of statutory prejudgment interest; although the Purchase and Sale agreement states that plaintiff's "sole recourse in the event of the [Town's] failure to deliver title is the return of the deposit," the Town failed to return the deposit upon plaintiff's well-founded and timely demand to cure defective title such that the plaintiff was required to file suit to obtain return of the deposit. Plaintiff is therefore entitled to statutory interest. As to the date on which prejudgment interest begins to run, court concurs with defendant that the calculational interest begins to run on May 18, 2022, when the defendant breached the contractual deadline for return of the deposit. Further, the interest ends upon the date of decision and judgment, May 3, 2024. Parties to file an agreed upon calculation of the prejudgment interest to be added to the execution, or disputed calculations if necessary, as soon as practicable. Hon. Diane R. Rubin, Presiding Counsel notified via email.
- Atty. Moriarty emailed the court: "The Court asked the parties to confer and come to an agreement regarding the correct amount of pre-judgment interest to be added to an amended execution. The parties have done so and agree that the correct amount is $49,709."
- Amended Writ of Execution, issued. (Original mailed via USPS to Attorney Kimberly Bielan and copies emailed to Attorneys Thomas Moriarty, Kimberly Bielan, William Morrissey, and Robert Gibbons) Judge: Rubin, Hon. Diane R.
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