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Case Information
Filed
2023-01-30
Status
Closed
Type
Eqa Equitable Action Involving Any Right, Title Or Interest In Land, G.l. Chapter 185, 1 (k)
Docket
33 entries
Disposition
case dismissed
Parties
Plaintiff
Carson, Theresa
Defendant
O'brien, Francis X.
Docket Entries
- omplaint filed.
- ase assigned to the Average Track per Land Court Standing Order 1:04.
- and Court miscellaneous filing fee Receipt: 437895 Date: 01/30/2023
- and Court surcharge Receipt: 437895 Date: 01/30/2023
- and Court summons Receipt: 437895 Date: 01/30/2023
- niform Counsel Certificate for Civil Cases filed by Plaintiff.
- he case has been assigned to the A Track. Notice sent. Notice of Judge and Track Assignment was generated and sent to: Plaintiff: Mary Lemieux Sandorse, Esq. [email protected] Sent On: 02/08/2023 14:48:49
- vent Scheduled Judge: Rubin, Hon. Diane R. Event: Case Management Conference Date: 03/22/2023 Time: 10:00 AM
- ummons returned to Court with service on Francis X. O'Brien filed. Served at the last and usual place of abode and by mailing first class mail on February 24, 2023.
- vent Resulted: Case Management Conference scheduled on: 03/22/2023 10:00 AM Has been: Rescheduled to April 26, 2023 at 10:30 am at the request of counsel and by agreement of the court. Hon. Diane R. Rubin, Presiding
- vent Scheduled Judge: Rubin, Hon. Diane R. Event: Case Management Conference Date: 04/26/2023 Time: 10:30 AM Counsel notified via email.
- nswer of Francis X. O'Brien filed.
- oint Case Management Memorandum, filed.
- vent Resulted: Case Management Conference scheduled on: 04/26/2023 10:30 AM Has been: Case management conference held via videoconference. Attorney Mary Sandorse appeared on behalf of the plaintiff, who was present, and Attorney Scott Clifford appeared on behalf of the defendant, who was present. Court is in receipt of the parties' Joint Case Management Memorandum. At issue in this case is an encroachment onto Plaintiff's property at 98 Bayshore Road, Hyannis, by a portion of the driveway for Defendant's abutting property at 90 Bayshore Road, Hyannis, both properties being registered land. Attorney Sandorse advised that there had previously been other encroachments but only the paved driveway encroachment remains, and counsel jointly advised that the parties are working towards a settlement on that issue. Attorney Clifford further advised that he is hopeful a global settlement can be reached on all of plaintiff's claims. Following colloquy, status conference scheduled for June 1, 2023, at 3:00 P.M., with parties to file a joint status report by May 25, 2023, so as to allow an opportunity for continued settlement negotiations. Hon. Diane R. Rubin, Presiding Counsel notified via email.
- cheduled Judge: Rubin, Hon. Diane R. Event: Status Conference Date: 06/01/2023 Time: 03:00 PM
- vent Resulted: Status Conference scheduled on: 06/01/2023 03:00 PM Has been: Rescheduled to June 27, 2023 at 11:30 am. Counsel will be filing a Joint Status Report by June 20, 2023. Hon. Diane R. Rubin, Presiding
- cheduled Judge: Rubin, Hon. Diane R. Event: Status Conference Date: 06/27/2023 Time: 11:30 AM
- oint Case Management Memorandum, filed.
- vent Resulted: Status Conference scheduled on: 06/27/2023 11:30 AM Has been: Status conference held via videoconference. Attorney Mary Sandorse appeared on behalf of the plaintiff, who was present, and Attorney Scott Clifford appeared on behalf of the defendant. Court is in receipt of the parties' Joint Case Management Memorandum. Attorney Sandorse advised that the parties have resolved Count I for removal of the encroaching driveway, but have not yet reached a settlement on Counts II (replacement of boundary stakes) and III (attorney's fees). Court encouraged the parties to consider mediation to avoid the time, expense, and risk of litigation, particularly given what remains in dispute, and inquired as to whether a mediation screening order may be helpful at this juncture. Counsel jointly advised that they are open to mediation, with court to issue a Mediation Screening Order. By July 28, 2023, parties to complete mediation screening. By August 4, 2023, parties to submit a written joint report to the court as to outcome of the mediation screening, whether parties are willing to attend mediation, and if so, naming mediation provider, identity of neutral, and date of session, with a further status conference to be scheduled at such time, if necessary. Hon. Diane R. Rubin, Presiding Counsel notified via email.
- DR referral to REBA Dispute Resolution, Inc. issued. Judge: Rubin, Hon. Diane R.
- rder Referring Case to Dispute Resolution Screening Session, issued. (Copies emailed to Attorneys Mary Sandorse and Scott Clifford) Judge: Rubin, Hon. Diane R.
- DR Report of REBA: Parties have a Mandatory Screening on August 2, 2023.
- DR Report of REBA: Parties had a Mandatory Screening on August 2, 2023 but declined to participate in Mediation. Counsel had renewed optimism that they could settle this case on their own without formal mediation.
- irst Amended Joint Case Management Memorandum after Mandatory Mediation Screening, filed.
- cheduled Judge: Rubin, Hon. Diane R. Event: Status Conference Date: 08/08/2023 Time: 10:30 AM Counsel notified via email.
- vent Resulted: Status Conference scheduled on: 08/08/2023 10:30 AM Has been: Status conference held via videoconference. Attorney Mary Sandorse appeared on behalf of the plaintiff, who was present, and Attorney Scott Clifford appeared on behalf of the defendant. Court is in receipt of the ADR Report of REBA and the First Amended Joint Case Management Memorandum after Mandatory Mediation Screening. Counsel advised that the parties engaged in mediation screening, but did not mediate, have not yet resolved the case, and now intend to proceed with discovery, even though the driveway dispute has been resolved and all that remains in dispute is Plaintiff's claim for several thousand dollars in attorney's fees and costs. Court encouraged the parties to consider additional settlement discussions to avoid the time, expense, and risk of litigation, particularly given that it is primarily Plaintiff's claim for attorney's fees that remains in dispute, and the substantive claims have largely been resolved. Following colloquy, status conference scheduled for August 23, 2023, at 11:30 A.M., to allow the parties one additional opportunity to resolve this case, otherwise court to put in place a discovery schedule at that time. Hon. Diane R. Rubin, Presiding Counsel notified via email.
- cheduled Judge: Rubin, Hon. Diane R. Event: Status Conference Date: 08/23/2023 Time: 11:30 AM
- vent Resulted: Status Conference scheduled on: 08/23/2023 11:30 AM Has been: Status conference held via videoconference. Attorney Mary Sandorse appeared on behalf of the plaintiff, and Attorney Scott Clifford appeared on behalf of the defendant. Court inquired into whether the parties had been able to resolve the remaining issue in dispute and counsel advised to the contrary. Court then reviewed with counsel the status of each of the three counts of plaintiff's complaint. Counsel reported that Count I (seeking an injunction to remove the driveway), has been resolved according to counsel, with all encroachments other than the driveway removed and an agreed upon sum agreed upon for the driveway encroachment. Count II (under G.L. c. 266, 94 for damages for destruction of property, namely boundary stakes), remains disputed, and is dismissed by the court for lack of jurisdiction because the Land Court is a court of limited jurisdiction extending (with certain limited exceptions) only to cases involving right, title, or interest in land and to some ancillary claims, and I conclude that this tort based claim is not ancillary to Count I which has now been settled and may have been properly before the court if there was a boundary dispute. See G.L. c. 185, 1(k); Ritter v. Bergmann, 72 Mass. App. Ct. 296, 302 (2008). As such, only Count III remains (under G.L. c. 231 6F), as to which the court urged the parties to reach a global resolution and dismiss this lawsuit. In the event the parties are unable to resolve the remining issue in dispute, the court put in place the following schedule: All discovery to be completed by December 1,2023, included expert designations and disclosures, with a status conference scheduled for December 13, 2023, at 10:00 A.M. Hon. Diane R. Rubin, Presiding Counsel notified via email.
- cheduled Judge: Rubin, Hon. Diane R. Event: Status Conference Date: 12/13/2023 Time: 10:00 AM
- efendant's Motion to Compel, filed.
- vent Resulted: Status Conference scheduled on: 12/13/2023 10:00 AM Has been: Canceled. The court will be issuing an Order to Show Cause. Hon. Diane R. Rubin, Presiding
- rder to Show Cause, issued. (Copies emailed to Attorneys Mary Sandorse and Scott Clifford) Judge: Rubin, Hon. Diane R.
- rder of Dismissal, issued. (Copies emailed to Attorneys Scott Clifford and Mary Sandorse) Judge: Rubin, Hon. Diane R.
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