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Case Information
Filed
2022-08-17
Status
Closed
Type
Eqa Equitable Action Involving Any Right, Title Or Interest In Land, G.l. Chapter 185, 1 (k)
Docket
35 entries
Disposition
judgment
Parties
Plaintiff
Dang, An T.|Dang, Hien B.
Defendant
Paul, James|Desire Paul, Marie Ange
Lawyers
Docket Entries
- Amended Order Approving Agreement for Judgment (Land Court Rule 10) issued. (Copies emailed to Attorneys Adam Sherwin, Brent Warren, and Matthew Ezepek) Judge: Piper, Hon. Gordon H.
- Case assigned to the Average Track per Land Court Standing Order 1:04.
- Land Court miscellaneous filing fee Receipt: 433349 Date: 08/17/2022
- Land Court surcharge Receipt: 433349 Date: 08/17/2022
- Land Court summons Receipt: 433349 Date: 08/17/2022
- Uniform Counsel Certificate for Civil Cases filed by Plaintiff.
- Plaintiffs' Motion for a Preliminary Injunction and Short Order of Notice, filed.
- August 17, 2022. Short order of notice to issue for a hearing on plaintiff's application for preliminary injunction to be held via videoconference on Wednesday, August 24, 2022 at 11:45 a.m. The short order of notice, ZOOM access codes and all pleadings to date, including complaint and moving and supporting papers, must be served on defendants not later than Friday, August 19, 2022 if the hearing is to go forward as scheduled on August 24th. Service in this action may, at the election of the plaintiff, be made by any licensed constable. (Piper, C.J.) Judge: Piper, Hon. Gordon H. Notice of Docket Entry was generated and sent to: Plaintiff: Adam Sherwin, Esq. [email protected] Defendant: James Paul No addresses available Defendant: Marie Ange Desire-Paul No addresses available Sent On: 08/17/2022 14:21:27
- Summons and Hearing Notice issued on Application for Preliminary Injunction. Judge: Piper, Hon. Gordon H. Event: Hearing on Preliminary Injunction Date: 08/24/2022 Time: 11:45 AM
- Plaintiff's Motion to Appoint Special Process Server Pursuant to Rule 4(c), filed.
- Appearance of Pro Se for James Paul, filed
- Return of Service on Defendant Marie Ange Desire-Paul, filed by email. Defendant served on August 18, 2022 at last and usual place of abode.
- Return of Service on Defendant James Paul, filed by email. Defendant served on August 18, 2022 at last and usual place of abode.
- Event Resulted: Hearing on Preliminary Injunction scheduled on: 08/24/2022 11:45 AM Has been: Held via video Hon. Gordon H. Piper, Presiding
- Notice of Docket Entry: August 24, 2022. Hearing held via videoconference on plaintiffs' application for preliminary injunction, pursuant to short order of notice issued August 17, 2022. Attorney Adam Sherwin appeared on behalf of the plaintiffs. Defendants James Paul and Marie Ange Desire-Paul appeared pro se. Foreign Language Interpreter Esther Paul (Haitian Creole) also attended the hearing on ZOOM by arrangement with the Office of Language Access, and was sworn to interpret. Attorney Sherwin advised the court, consistent with the preliminary injunction papers filed, that the parties own two adjacent properties in Malden and that the dispute concerns the defendants' use, for vehicular parking, of a 10-foot passageway that is located on the plaintiffs' fee property. Plaintiffs' property, 22 Judson Street, fronts on Judson Street; defendants' property at 24 Judson Street, is to the rear of plaintiffs' residential lot, and is reached via the disputed passageway. Attorney Sherwin contended on plaintiffs' behalf that the defendants engage in the unauthorized use of the passageway for vehicular access and parking and that the recorded instruments establish that the passageway is intended only for transitory use and for pedestrian access to defendants' rear house lot. Plaintiffs assert that parking by defendants on the plaintiffs' land within the 10-foot wide passageway is not authorized by the record easements. Accordingly, plaintiffs seek an order that prohibits both parties from parking within the passageway, and further restricts the use by defendants of the passageway to pedestrian access only. Defendant James Paul stated that he and his codefendant do not oppose the relief requested in plaintiffs' application for a preliminary injunction. The defendants are willing to accept an order that neither defendants nor plaintiffs park any vehicles within the 10-foot wide passageway on plaintiffs' property, which serves defendants' property in the rear. Following argument, consistent with the parties' undertakings to the court, the court ALLOWED plaintiffs' application for a preliminary injunction. The court ORDERS that the defendants and the plaintiffs, and their agents, employees, attorneys, contractors, invitees, guests, tenants, family members, and other persons in active concert with any of them who have actual notice of this Order, are PRELIMINARILY ENJOINED AND RESTRAINED from parking, standing, or otherwise leaving in place any car, truck, or other motor vehicle, in or upon the 10-foot passageway located on 22 Judson Street in Malden, Massachusetts, as described and depicted in Exhibits A-D to the Complaint. The passageway is to be kept materially unobstructed and open, to allow full pedestrian passage over the length and width of the passageway, except only during permitted transitory passage over it. This injunction against vehicular parking and access does not prohibit the otherwise lawful entry and use of the right of way by pedestrians. This injunction does not prohibit the otherwise lawful temporary and transitory use of the passageway by the plaintiffs or those they authorize for vehicular passage and maneuvering by a vehicle authorized to park on the remainder of the plaintiff's property entirely outside the limit of the 10-foot wide passageway, provided however, that any such vehicle does not at any time stop, stand, or park within the limit of the passageway. It is further ORDERED that the parties are to cooperate in a good faith and reasonable manner to carry out the provisions of this Order, and may by agreement provide for specific conduct or actions not otherwise permitted by this Order but only by clear written agreement. Plaintiffs promptly to pay to the Recorder's office the statutory injunction fee of $90. Defendants reported they plan soon to engage counsel to represent them in the present case. Once retained, counsel for defendants is instructed to promptly file and serve a notice of appearance. (Piper, C.J.) Judge: Piper, Hon. Gordon H. Notice of Docket Entry was generated and sent to: Plaintiff: Adam Sherwin, Esq. [email protected] Defendant: James Paul [email protected] Sent On: 08/30/2022 13:00:02
- The case has been assigned to the A Track. Notice sent. Notice of Judge and Track Assignment was generated and sent to: Plaintiff: Adam Sherwin, Esq. [email protected] Defendant: James Paul No addresses available Sent On: 08/29/2022 09:05
- Event Scheduled Judge: Piper, Hon. Gordon H. Event: Case Management Conference Date: 09/28/2022 Time: 11:15 AM
- Cost of Issuance of TRO/PI Receipt: 433656 Date: 08/29/2022
- Answer and Counterclaim of James Paul, Marie Ange Desire-Paul filed
- Answer of An T. Dang, Hien B. Dang filed. Answer to Defendants' Counterclaims
- Joint Case Management Memorandum, filed.
- Event Resulted: Case Management Conference scheduled on: 09/28/2022 11:15 AM Has been: Held via video Hon. Gordon H. Piper, Presiding September 28, 2022. Case management conference held via ZOOM. Early intervention event held. Attorney Adam Sherwin, Esq. appeared for plaintiff. Attorney Matthew Ezepek appeared for defendants. Foreign Language Interpreter Esther Paul (Haitian Creole) also attended the hearing on ZOOM by arrangement with the Office of Language Access, and was sworn to interpret. This case involves a dispute between the owners of two adjacent properties in Malden over the use of a 10-foot wide easement of record over the plaintiff's fee, for the benefit of the defendants. Plaintiffs contend that defendants engage in unauthorized use of the passageway for parking. Previously, plaintiffs sought a preliminary injunction enjoining the defendants from parking in the passageway. On August 24, 2022, after hearing the court entered a preliminary injunction. Counsel for plaintiffs indicated that there has been compliance generally with the injunction order. Counsel for defendants reported that plaintiffs have been parking on the plaintiffs' property, but near the passageway. The court clarified that the injunction enjoins all of the parties from using the passageway for parking and standing of vehicles, leaving it open for pedestrian passage and other activities which do not block or occupy physically the 10-foot passage, except that the order does allow maneuvering by plaintiffs to gain access to parking elsewhere on the plaintiffs' land. The preliminary injunction continues to be in effect. To the extent defendants wish to seek any alteration of the terms of the injunction, which was entered prior to the defendants having retained counsel, the defendants may file and serve a properly-supported motion. Attorney Ezepek further explained that defendants intend to assert that their record rights in the passageway have expanded by prescription, based on the alleged use of the passageway area by the defendants and their predecessors in title for parking and access for at least twenty years. Attorney Ezepek informed the court of a possible alternative easement benefiting defendants' property, running over land of a third party to provide some form of access or parking to defendants' land. Attorney Ezepek will consider the need to expand the pleadings in this case to include any necessary or desirable additional parties. Court encouraged parties to consider mediation, and advised the parties to contact the court for assistance with mediation if desired. All discovery to be completed by January 31, 2023, by agreement of counsel. At the conclusion of discovery, counsel to file detailed joint written report. In that report, counsel will set forth the discovery which has been accomplished, and advise if dispositive motions will be forthcoming, and, if so, t who will file first, as to what issues, with Land Court Rule 4 to govern the content of the leading motion, which is to be filed by February 28, 2023, and the content and filing dates for any ensuing dispositive motion filings. If neither party intends to file a dispositive motion, in their joint written report, counsel are to request the court schedule a pretrial conference. Counsel advised to direct all communication with the court to sessions clerk Attorney Nicole Foster. Captions to filings should include the name or initials of the assigned judge. Filings to be made electronically and by mailing of hard copies to the court, with indication that electronic filings were made simultaneously. (Piper, C.J.)
- Notice of Docket Entry: Notice of Docket Entry was generated and sent to: Plaintiff: Adam Sherwin, Esq. [email protected] Defendant: Brent Taylor Warren, Esq. [email protected] Defendant: Matthew Ezepek, Esq. [email protected] Sent On: 09/29/2022 13:19:09
- Alternative Dispute Resolution: Early Intervention Event held. Judge: Piper, Hon. Gordon H.
- Complaint for Civil Contempt, filed.
- Scheduled Judge: Piper, Hon. Gordon H. Event: Pre-Trial Conference Date: 05/12/2023 Time: 02:30 PM (via videoconference) Pre-trial Conference Notice and Order was generated and sent to: Plaintiff: Adam Sherwin, Esq. [email protected] Defendant: Brent Taylor Warren, Esq. [email protected] Defendant: Matthew Ezepek, Esq. [email protected] Sent On: 04/09/2023 15:15:34
- Event Resulted: Hearing on Complaint for Contempt scheduled on: 05/12/2023 02:30 PM Has been: Held via video Hon. Gordon H. Piper, Presiding
- Event Resulted: Pre-Trial Conference scheduled on: 05/12/2023 02:30 PM Has been: Held via video Hon. Gordon H. Piper, Presiding Pretrial conference and initial hearing on Plaintiff's Motion for Contempt held via videoconference. Attorney Adam Sherwin, Esq. appeared for plaintiff. Attorney Matthew Ezepek appeared for defendant. Foreign Language Interpreter Pierre Loubeau (Haitian Creole) also attended the hearing on ZOOM by arrangement with the Office of Language Access, and was sworn to interpret. This case concerns an easement held by the defendants for passage over a ten-foot passageway located on the plaintiff's record property. Counsel agreed that, should the matter proceed to trial, the Court would need to determine the threshold question whether the parties' record rights permit parking by either plaintiffs or defendants in the area of the plaintiffs' easement. The language in the current deeds is not explicit on this pivotal point. This inquiry would involve, among other things, development of the intent of the parties to the original severance of the lots into separate ownership in the 1940's, and evidence of the facts and circumstances surrounding the easement's creation. Should the Court determine that the easement as a matter of record title does not allow parking, the Court would need to address whether, on the facts found, the defendants, based on activities of their predecessors, in title have established rights to park in the easement area through prescriptive use maintained in the requisite manner continuously over a period of twenty years. In their complaint for contempt, the plaintiffs allege that the defendants have violated the preliminary injunction entered by this court on August 24, 2022, prohibiting the defendants from parking, standing, or otherwise leaving in place any car, truck, or other motor vehicle in or upon the 10-foot passageway located on 22 Judson Street in Malden, Massachusetts. Attorney Ezepek maintained that the defendants do not believe they have violated the preliminary injunction, while indicating that third parties may have parked in the passageway but were promptly redirected by the defendants. Defendants are directed to file and serve an answer to the plaintiffs' complaint for contempt by May 22, 2023. Absent further order, the court will defer further action on the contempt allegations. The court will hear evidence on the allegations in the complaint for contempt contemporaneously with trial on the merits of the case. After colloquy with the court, counsel agreed that the parties were amenable to attempting to reach a negotiated settlement through mediation. Court to determine the availability of a prompt mediation with Land Court Mediator Attorney Barbara Macy, and the court will inform counsel the results of such efforts. Should prompt mediation with Attorney Macey be unavailable, counsel agreed the parties would participate in mediation with a mediator affiliated with a Land Court court-connected ADR provider, who may charge customary fees for mediation services. Counsel additionally reported that, should mediation prove unsuccessful, additional time for discovery may be needed before the parties are ready for trial, including to depose and seek documents from anticipated trial witnesses. Counsel are to advise the court on the requested scheduled for that to occur, should it become necessary, and are to request a rescheduled pre-trial conference should a trial be indicated, despite diligent good faith efforts to resolve the dispute. Counsel instructed to direct all communications with the Court, including the scheduling of, and progress made in, their mediation, to Sessions Clerk Attorney Nicole Foster. (Piper, C.J.) Notice of Docket Entry was generated and sent to: Plaintiff: Adam Sherwin, Esq. [email protected] Defendant: Brent Taylor Warren, Esq. [email protected] Defendant: Matthew Ezepek, Esq. [email protected] Sent On: 05/17/2023 15:33:04
- Acceptance of Service of Summons for Plaintiffs' Complaint for Civil Contempt, filed.
- Joint Pre-trial Memorandum, filed.
- Joint Motion for Approval of Agreement for Judgment, filed.
- Order Approving Agreement for Judgment (Land Court Rule 10) issued. (Copies emailed to Attorneys Adam Sherwin, Brent Warren, and Matthew Ezepek) Judge: Piper, Hon. Gordon H.
- Agreement for Judgment approved by the Court.
- Joint Motion for Order Amending Agreement for Judgment, filed.
- Joint Motion for Order Amending Agreement for Judgment (2 of 2), filed.
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