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Court

Massachusetts Unified County

Massachusetts

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Case Information

Filed 2023-01-12
Status Open
Type Eqa Equitable Action Involving Any Right, Title Or Interest In Land, G.l. Chapter 185, 1 (k)
Docket 71 entries

Parties

Plaintiff Coulturi, Daniel|Harris, Patricia A.|Overholtz, Jr., William J.|Overholtz, Margaret M.
Defendant Eco Land Development, Llc|Gonsalves, Carl|Gonsalves, Rosa

Lawyers

Docket Entries

  1. omplaint filed.
  2. ase assigned to the Average Track per Land Court Standing Order 1:04.
  3. and Court miscellaneous filing fee Receipt: 437440 Date: 01/12/2023
  4. and Court surcharge Receipt: 437440 Date: 01/12/2023
  5. and Court summons Receipt: 437440 Date: 01/12/2023
  6. niform Counsel Certificate for Civil Cases filed by Plaintiff.
  7. lease be advised that this case has been REASSIGNED to the Honorable Kevin T. Smith. Judge Smith's Sessions Clerk is Maeve Moran who can be reached via email at [email protected]. Please direct all correspondence for the Court to Clerk Moran, and ensure that you add the Court's initials at the end of the case number: 23 MISC 000015 (KTS), Email notice to: Attorney Brian J. Wall. Notice of Docket Entry was generated and sent to: Plaintiff: Brian J Wall, Esq. [email protected] Sent On: 01/18/2023 14:44:41
  8. he case has been assigned to the A Track. Notice sent. Notice of Judge and Track Assignment was generated and sent to: Plaintiff: Brian J Wall, Esq. [email protected] Defendant: Eco Land Development, LLC No addresses available Defendant: Carl Gonsalves No addresses available Defendant: Rosa Gonsalves No addresses available Sent On: 02/08/2023 11:53:43
  9. vent Scheduled Judge: Smith, Hon. Kevin T. Event: Case Management Conference Date: 02/27/2023 Time: 11:45 AM
  10. his case has been RE-ASSIGNED to Judge Diane R. Rubin.
  11. vent Resulted: Case Management Conference scheduled on: 02/27/2023 11:45 AM Has been: Canceled Hon. Kevin T. Smith, Presiding
  12. vent Scheduled Judge: Rubin, Hon. Diane R. Event: Case Management Conference Date: 02/27/2023 Time: 11:30 AM Counsel notified via email.
  13. nswer of Eco Land Development, LLC, Carl Gonsalves, Rosa Gonsalves filed.
  14. ummons returned to Court with service on Eco Land Development, LLC filed. Accepted by Peter L. Freeman, attorney on behalf of Eco Land Development, LLC on February 2, 2023
  15. oint Case Management Statement, filed.
  16. vent Resulted: Case Management Conference scheduled on: 02/27/2023 11:30 AM Has been: Case management conference held via videoconference. Attorney Brian Wall appeared on behalf of the plaintiffs and Attorney Peter Freeman appeared on behalf of the defendants, with Edwin Monteiro present. Court is in receipt of the parties' Joint Case Management Statement. By way of background, Attorney Wall advised that plaintiffs, owners of land on Percival Road, a private right of way in Falmouth, contend that the Defendants' property only has rights over the first section of Percival Road (formerly known as Old Mill Road), and that Defendants' proposed G.L. c. 40B project would overburden Percival Road. Attorney Freeman advised that, given the fact intensive nature of the claims, this case may be premature because the initial G.L. c. 40B project application was denied by the Zoning Board of Appeals ("ZBA") such that there are no rights to develop and no concrete project plans. Attorney Freeman further advised that defendants are currently mediating the appeal of the ZBA's denial (before the Housing Appeals Committee), and that they intend to file a revised application with the ZBA. Court discussed with counsel whether a stay may be appropriate as well as whether the parties may want to consider mediation of this case, either separately or in conjunction with defendants' ongoing mediation. Following colloquy and by April 12, 2023, parties to file a joint status report advising as to whether a stay is requested, whether there are any stipulated terms for such a stay, whether the parties would welcome a mediation screening order, and the status of the 40B project and any application before the ZBA, with court to schedule a further status conference at that time, as may be appropriate. Hon. Diane R. Rubin, Presiding Counsel notified via email.
  17. oint Status Report, filed.
  18. ourt is in receipt of the parties' Joint Status Report and, after due consideration, declines to stay this case while the ZBA application is pending. The court hereby establishes a discovery deadline of October 31, 2023, to include all expert designations and disclosures. That schedule will be revisited at a Status Conference on June 7, 2023 at 10:30 a.m., if necessary. In addition, the court will issue a mediation screening order with screening to be completed by May 26, 2023, and a further joint status report due June 2, 2023. Counsel notified via email. Judge: Rubin, Hon. Diane R.
  19. cheduled Judge: Rubin, Hon. Diane R. Event: Status Conference Date: 06/07/2023 Time: 10:30 AM
  20. DR referral to REBA Dispute Resolution, Inc. issued. Judge: Rubin, Hon. Diane R.
  21. rder Referring Case to Dispute Resolution Screening Session, issued. (Copies emailed to Attorneys Brian Wall and Peter Freeman) Judge: Rubin, Hon. Diane R.
  22. DR Report of REBA: Parties have a Screening on May 25, 2023.
  23. oint Status Report, filed.
  24. vent Resulted: Status Conference scheduled on: 06/07/2023 10:30 AM Has been: Status conference held via videoconference. Attorney Brian Wall appeared on behalf of the plaintiffs and Attorney Peter Freeman appeared on behalf of the defendants. Court is in receipt of the parties' Joint Status Report. Attorney Freeman first advised that the defendants Carl and Rosa Gonsalves have sold the property at issue to defendant Eco Land Development, LLC, such that he intends to file a motion to dismiss them from the action. Attorney Wall advised that he does not object, but intends to take some discovery from the Gonsalveses as to historical use of the easement, either before or after they are dismissed from the case. Following colloquy, counsel to confer and file any motions as may be appropriate. Counsel then jointly advised that they engaged in mediation screening but did not proceed to mediation, and court encouraged the parties to continue mediation or settlement efforts in order to reach a mutually agreeable resolution. With respect to status of the proposed 40B project, Attorney Freeman advised that a revised application for 12 single family homes is pending before the ZBA, but that his client has not waived their rights before the HAC with respect to denial of the previously proposed 16 single family homes. In light of the pending proceedings, court hereby extends the discovery deadline to December 29, 2023, to include all expert designations and disclosures. Status conference scheduled for October 11, 2023, at 10:00 A.M., with parties to file by October 4, 2023, a joint status report. Hon. Diane R. Rubin, Presiding Counsel notified via email.
  25. cheduled Judge: Rubin, Hon. Diane R. Event: Status Conference Date: 10/11/2023 Time: 10:00 AM
  26. vent Resulted: Status Conference scheduled on: 10/11/2023 10:00 AM Has been: Rescheduled to October 5, 2023 at 10:00 am, per order of the court. Hon. Diane R. Rubin, Presiding
  27. cheduled Judge: Rubin, Hon. Diane R. Event: Status Conference Date: 10/05/2023 Time: 10:00 AM Counsel notified via email.
  28. oint Motion to Continue Status Conference, filed and ALLOWED. Status Conference Rescheduled to November 29, 2023 at 2:30 pm. Counsel will file a Joint Status Report by Novembe r22, 2023. Counsel notified via email. Judge: Rubin, Hon. Diane R.
  29. vent Resulted: Status Conference scheduled on: 10/05/2023 10:00 AM Has been: Rescheduled Hon. Diane R. Rubin, Presiding
  30. cheduled Judge: Rubin, Hon. Diane R. Event: Status Conference Date: 11/29/2023 Time: 02:30 PM
  31. oint Status Report, filed.
  32. vent Resulted: Status Conference scheduled on: 11/29/2023 02:30 PM Has been: Status conference held via videoconference. Attorney Brian Wall appeared on behalf of the plaintiff, and Attorney Peter Freeman appeared on behalf of the defendant. Court is in receipt of parties Joint Status Report. Attorney Wall reported that the plaintiff had filed in Barnstable Superior Court an appeal of approval of defendant's application for a comprehensive permit (Docket No. 2372CV00420). Counsel jointly advised, however, that there was no reason to delay this land court matter. Court inquired into the possibility of further settlement discussions now that the scope of the proposed project was known, so as to avoid the time, expense, and risk of litigation, with counsel to continue discussion toward a global settlement as appropriate. Following colloquy regarding the parties' request to extend the discovery deadline briefly, court set the following schedule: by February 29, 2024, discovery to close, to include all expert designations and disclosures; by March 7, 2024, parties to submit a joint status report by confirming that discovery is complete, advising as to whether any party intends to file a dispositive motion (and the basis therefore), whether a pre-trial conference should be scheduled, prospects for settlement or further mediation, and advising of any other matters necessitating the court's attention. Status conference scheduled for March 19, 2024, at 11:00 A.M. Hon. Diane R. Rubin, Presiding Counsel notified via email.
  33. cheduled Judge: Rubin, Hon. Diane R. Event: Status Conference VIA ZOOM. Date: 03/19/2024 Time: 11:00 AM
  34. oint Status Report, filed.
  35. vent Resulted: Status Conference scheduled on: 03/19/2024 11:00 AM Has been: Rescheduled to June 3, 2024 at 10:00 am. Counsel will file a Joint Status Report by May 24, 2024. Hon. Diane R. Rubin, Presiding
  36. cheduled Judge: Rubin, Hon. Diane R. Event: Status Conference VIA ZOOM. Date: 06/03/2024 Time: 10:00 AM Counsel notified via email.
  37. oint Status Report, filed.
  38. vent Resulted: Status Conference scheduled on: 06/03/2024 10:00 AM Has been: Status conference held via videoconference. Attorney Brian Wall appeared on behalf of the plaintiffs, and Attorney Peter Freeman appeared on behalf of the defendants. Court is in receipt of two status reports reporting that discovery was nearing completion. Attorney Wall reported that discovery was also underway in the related 40B comprehensive permit case in Barnstable Superior Court (Docket No. 2372CV00420). Court discussed with counsel the possibility of seeking interdepartmental assignment of the Superior Court case to this session in accordance with Trial Court Rule XII, due to overlapping factual issues involved and in the interest of judicial economy. Status conference scheduled for August 21, 2024, at 11:00 A.M. Hon. Diane R. Rubin, Presiding Counsel notified via email.
  39. cheduled Judge: Rubin, Hon. Diane R. Event: Status Conference VIA ZOOM. Date: 08/21/2024 Time: 11:00 AM
  40. ppearance of Thomas O Moriarty, Esq., Kimberly Bielan, Esq. for Eco Land Development, LLC, filed
  41. tty. Freeman filed a joint request for an inter-departmental transfer and consolidation of the Land Court and Barnstable Superior Court case to the Permit Session.
  42. efendant Eco Land Development, LLC's Motion to Amend Pleadings to Add Counterclaim, filed.
  43. laintiff Patricia A. Harris' Opposition to Defendant Eco Land Development, LLC's Motion to Amend Pleadings to Add Counterclaim, filed.
  44. opy of Order of Assignment, Issued. To promote the dispatch of judicial business and pursuant to the authority contained in G.L. c. 211B, sec. 9, Chief Justice Gordon Piper of the Land Court Department, or his designee, is authorized and assigned to sit as a Justice of the Superior Court Department to preside over the above-entitled action.
  45. vent Resulted: Status Conference scheduled on: 08/21/2024 11:00 AM Has been: Status conference held via videoconference. Attorney Brian Wall appeared on behalf of the plaintiffs, and Attorneys Peter Freeman and Thomas Moriarty appeared on behalf of the defendants, with Edward Monteiro present. Court is in receipt of Defendant Eco Land Development, LLC's Motion to Amend Pleadings to Add Counterclaim and Plaintiff Patricia A. Harris' Opposition to Defendant Eco Land Development, LLC's Motion to Amend Pleadings to Add Counterclaim. Following argument, the court ALLOWED Defendant's motion to amend its answer to add a counterclaim, for the reasons stated on the record and as follows: Mass. R. Civ. P. 15(a) directs that "leave shall be freely given when justice so requires." "Reasons that 'might justify the denial of a motion to amend' include 'undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party . . . futility of amendment,' as well as the imminence of trial." Vakil v. Vakil, 450 Mass. 411, 417-418 (2008), quoting Castellucci v. United States Fid. & Guar. Co., 372 Mass. 288, 290, 292 (1977). The counterclaim alleges that a water line serving plaintiff Patricia Harris' property encroaches onto defendant Eco Land Development, LLC's property ("Eco"). Although some 18 months have passed since the filing of the complaint, the case is not yet prepared for trial (also in connection with the pending Barnstable Superior Court case, as to which interdepartmental assignment has been requested), and the need for additional discovery into the history and exact location of the water line is limited. Therefore there would be no undue or prejudicial delay. Further, this claim was capable of being brought in another court and allowing amendment to add a counterclaim would conserve judicial resources. As soon as practicable, Defendant to file an updated counterclaim to include allegations regarding both Ms. Harris' water line, as well as that of any other party whose water line may allegedly encroach on Percival Road. Discovery to be complete by November 29, 2024, to include all expert designations and disclosures. In addition, Defendant to supplement its expert interrogatories by September 23, 2024. Further parties to confer as to the location of the waterline addressed by the counterclaim, as Attorney Wall reported that his client had marked the waterline and believed it was entirely within a public way. By December 12, 2024, parties to file a joint status report confirming that discovery is complete and whether they are prepared to schedule a pre-trial conference. Status conference scheduled for December 19, 2024, at 9:30 A.M. Hon. Diane R. Rubin, Presiding Counsel notified via email.
  46. cheduled Judge: Rubin, Hon. Diane R. Event: Status Conference Date: 12/19/2024 Time: 09:30 AM
  47. efendant Eco Land Development, LLC's Motion to Amend Counterclaim, to Add Party Defendant and to Amend Counterclaim - Assented to, filed.
  48. ounterclaim of Eco Land Development, LLC, filed.
  49. nswer of Patricia A. Harris as Trustee of the Patricia A. Harris Trust and Daniel Colturi to Counterclaim of Eco Land Development,LLC, filed.
  50. orrected Answer of Patricia A. Harris as Trustee of the Patricia A. Harris Trust and Daniel Colturi to Counterclaim of Eco Land Development,LLC, filed.
  51. laintiffs' Motion for Discovery by Oral Deposition of Expert Witnesses Expected to Testify, filed.
  52. efendants' Opposition to Plaintiffs' Motion to Depose Expert Witnesses, filed.
  53. ppendix of Exhibits, filed.
  54. oint Status Report, filed.
  55. vent Resulted: Status Conference scheduled on: 12/19/2024 09:30 AM Has been: Status conference held via videoconference. Attorneys Brian Wall and Clodagh Troy appeared on behalf of the plaintiffs. Attorney Peter Freeman appeared on behalf of the defendant. Court is in receipt of Defendant Eco Land Development, LLC's Motion to Amend Counterclaim, to Add Party Defendant and to Amend Counterclaim - Assented to, Counterclaim of Eco Land Development, LLC, Answer of Patricia A. Harris as Trustee of the Patricia A. Harris Trust and Daniel Colturi to Counterclaim of Eco Land Development, LLC, Corrected Answer of Patricia A. Harris as Trustee of the Patricia A. Harris Trust and Daniel Colturi to Counterclaim of Eco Land Development, LLC, Plaintiffs' Motion for Discovery by Oral Deposition of Expert Witnesses Expected to Testify, Defendants' Opposition to Plaintiffs' Motion to Depose Expert Witnesses, Appendix of Exhibits, and Joint Status Report. Counsel reported that discovery was nearly complete, however, Attorney Wall seeks to depose defendant's two expert witnesses, who provided expert interrogatory responses opining as to the location of a water line which allegedly trespasses on defendant's property. There appears to be a question about whether the water line lies in Percival Road, a private way, in which case there may be no trespass by virtue of the derelict fee statute. G.L. c. 183, 58. Following colloquy, defendant to supplement its expert interrogatory responses to clarify the specific location of the water line relative to the boundaries of plaintiffs' property and the layout of the private way and the basis for so determining. By January 17, 2025, defendant to provide plaintiff with supplemental interrogatory responses addressing: (1) the means and methods the defendant's experts used to locate the water line; and (2) the precise location of the water line relative to the layout of Percival Road and the plaintiff's property. Thereafter, by January 31, 2025, parties and their experts to meet on site and confer as to the location of the water line. By February 7, 2025, parties to file a status report and a stipulation of dismissal of Carl and Rosa Gonsalves. Pre-trial conference scheduled for April 23, 2025, at 2:00P.M. Hon. Diane R. Rubin, Presiding Counsel notified via email.
  56. oint Stipulation of Dismissal as to Defendants Carl Gonsalves and Rose Gonsalves ONLY, filed.
  57. cheduled Judge: Rubin, Hon. Diane R. Event: Pre-Trial Conference Date: 04/23/2025 Time: 02:00 PM Counsel notified via email.
  58. oint Status Report, filed. The court grants the parties request to complete the depositions by March 14, 2025. Counsel notified via email. Judge: Rubin, Hon. Diane R.
  59. oint Status Report and Motion to Continue the Pre-Trial Conference for 30 days, filed.
  60. otion to Continue the Pre-Trial Conference for 30 days, ALLOWED. Pre-Trial Conference continued to June 2, 2025 at 9:30 am via zoom. Counsel notified via email. Judge: Rubin, Hon. Diane R.
  61. vent Resulted: Pre-Trial Conference scheduled on: 04/23/2025 02:00 PM Has been: Continued For the following reason: Request of all Parties Hon. Diane R. Rubin, Presiding
  62. cheduled Judge: Rubin, Hon. Diane R. Event: Pre-Trial Conference VIA ZOOM Date: 06/02/2025 Time: 09:30 AM Counsel notified via email.
  63. oint Motion to Continue Pre-Trial Conference, filed and ALLOWED. Pre-Trial Conference Continued to June 25, 2025 at 11:30 am. Counsel notified via email. Judge: Rubin, Hon. Diane R.
  64. vent Resulted: Pre-Trial Conference scheduled on: 06/02/2025 09:30 AM Has been: Continued For the following reason: Request of all Parties Hon. Diane R. Rubin, Presiding
  65. cheduled Judge: Rubin, Hon. Diane R. Event: Pre-Trial Conference Date: 06/25/2025 Time: 11:30 AM VIA ZOOM. Counsel notified via email.
  66. co Land Development LLC's Motion for Surety or Case Bond, filed.
  67. emorandum in Support of Eco Land Development LLC's Motion for Surety or Case Bond, filed.
  68. ffidavit of Edwin A, Monteiro, filed.
  69. oint Pre-Trial Memorandum, filed.
  70. vent Resulted: Pre-Trial Conference scheduled on: 06/25/2025 11:30 AM Has been: Pre-trial conference held via videoconference. Attorneys Brian Wall appeared on behalf of the plaintiffs. Attorneys Peter Freeman and Tom Moriarty appeared on behalf of the defendant. Court is in receipt of Joint Stipulation of Dismissal as to Defendants Carl Gonsalves and Rose Gonsalves ONLY, Eco Land Development LLC's Motion for Surety or Case Bond, Memorandum in Support of Eco Land Development LLC's Motion for Surety or Case Bond, Affidavit of Edwin A. Monteiro, and Joint Pre-Trial Memorandum. Court reviewed with those present the Joint Pre-Trial Memorandum. Court discussed with counsel the need for a unified statement of the issues for trial, suggesting the following: (1) Whether defendants' proposed project unlawfully overburdens plaintiffs' private easement rights; (2) Whether the water lane serving properties of plaintiff Coulturi and plaintiff Patricia A. Harris, as Trustee of the Patricia A. Harris Trust, unlawfully encroaches on defendants property (and, if so, whether it is a de minimis encroachment) and whether defendant should be enjoined from doing work on waterline serving plaintiffs' property; and (3) Whether the decision of the zoning board of appeals ("ZBA") exceeded the authority of the ZBA, was unreasonable, arbitrary, capricious, and whimsical such as to warrant annulment, and whether the board waived local zoning requirements that are "not consistent with local needs" pursuant to G.L. c. 40B. Bd. of Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339, 355 (1973). Counsel to confer and file a clarified and agreed upon statement of the issues for trial. Counsel advised that the parties continue to work together toward a negotiated resolution. In the event a negotiated resolution is not achieved, counsel to file an updated and further refined pre-trial conference memorandum and any motions in limine. In addition, counsel to include a complete copy of the bylaw as a trial exhibit. By August 1, 2025, parties to file any opposition to Eco Land Development LLC's Motion for Surety or Case Bond Court. Hearing scheduled for September 19, 2025, 10:00A.M., at which time a date will be set for the filing of a further refined pre-trial conference memorandum to advise as to whether they wish to rely on the court's FTR recording system or hire a court reporter and propose a date for a view, with trial tentatively scheduled for February 2-5, 2025. Hon. Diane R. Rubin, Presiding Counsel notified via email.
  71. otice of Docket Entry: Notice of Docket Entry was generated and sent to: Plaintiff: Brian J Wall, Esq. [email protected] Defendant: Peter L Freeman, Esq. [email protected] Defendant: Thomas O Moriarty, Esq. [email protected] Defendant: Kimberly Bielan, Esq. [email protected] Sent On: 06/30/2025 15:27:38

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