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Case Information
Filed
2021-10-18
Status
Closed
Type
Cer Enforce Restrictions, G.l. Chapter 240, 10 A 10 C
Docket
43 entries
Parties
Plaintiff
Vollmar, Virginia A.
Defendant
Pelletier, Bobby J.|Pelletier, Nicole S.
Lawyers
Docket Entries
- Stipulation of Dismissal (pursuant to Mass. R. Civ. P. 41(a)), filed by email.
- Case assigned to the Average Track per Land Court Standing Order 1:04.
- Land Court miscellaneous filing fee Receipt: 425961 Date: 10/18/2021
- Land Court surcharge Receipt: 425961 Date: 10/18/2021
- Uniform Counsel Certificate for Civil Cases filed by Plaintiff.
- Land Court summons Receipt: 425961 Date: 10/18/2021
- Uniform Counsel Certificate for Civil Cases filed by Plaintiff.
- Plaintiff's Ex-Parte Motion for Temporary Restraining Order and/or Injunctive Relief, filed.
- Memorandum of Law in Support of Ex-Parte Application for Temporary Restraining Order and/or Injunctive Relief, filed.
- Plaintiff's Motion for Short Order of Notice, filed.
- Verified Complain and Request for Injunctive Relief, filed.
- Summons and Hearing Notice issued on Application for Preliminary Injunction. Judge: Piper, Hon. Gordon H. Event: Hearing on Preliminary Injunction Date: 10/22/2021 Time: 12:00 PM No TRO is being issued.
- Event Resulted: Hearing on Preliminary Injunction scheduled on: 10/22/2021 12:00 PM Has been: Rescheduled Hon. Gordon H. Piper, Presiding Waiting on assurance by the Defense attorney concerning their participation on Monday.
- Hearing Notice issued on Application for Preliminary Injunction. Judge: Piper, Hon. Gordon H. Event: Hearing on Preliminary Injunction Date: 10/25/2021 Time: 03:00 PM
- Appearance of Thomas E Sartini, III, Esq. for Bobby J. Pelletier, Nicole S. Pelletier, filed
- Defendant's Opposition to Plaintiff's Application for Temporary Restraining Order and/or Injunctive Relief, filed (by email).
- Event Scheduled Judge: Piper, Hon. Gordon H. Event: Case Management Conference Date: 11/09/2021 Time: 02:00 PM
- The case has been assigned to the A Track. Notice sent.
- Event Resulted: Hearing on Preliminary Injunction scheduled on: 10/25/2021 03:00 PM Has been: Held via video October 25, 2021. Hearing held via videoconference on plaintiff's application for preliminary injunction. Attorney John Gallant appeared for plaintiff. Attorney Thomas Sartini appeared for defendants. Attorney Gallant confirmed that plaintiff in this action claims the benefit of an easement over a partially-paved right-of-way, 30 feet in width, located entirely on defendants' property in Groton along its boundary with plaintiff's land, and seeks the removal of a fence and plantings recently placed by defendants within that area; plaintiff's application for preliminary injunctive relief asks the court to order the removal of those alleged obstructions during the pendency of this action. Pursuant the standards under Mass. R. Civ. P. 65 for issuance of injunctive orders, in reviewing plaintiff's request for preliminary relief, court is obliged to consider plaintiff's "likelihood of success on the merits, [her] claim of injury, and finally, a balancing of the competing harms to each party." General Accident Insurance Co. of America v. Bank of New-England-West, N.A., 403 Mass. 473, 475 (1988) (citation omitted). Court observed that the preliminary record assembled by the parties is entirely insufficient for the court to engage in a balancing of the harms. Attorney Gallant confirmed the harm alleged by plaintiff to be that, due to the fence installed by defendants, she and her invitees (including delivery and/or emergency vehicles) now are unable to conduct a three-point turn after accessing plaintiff's property and must instead unsafely back out over the entirety of the parties' shared driveway to the road. Even within the context of the more limited review appropriate to an application for preliminary relief, the record here is bereft of the photographs, plans, measurements, and affidavits that would be necessary for the court to make any evaluation of the actual difficulty of maneuvering within the driveway (either with or without the use of the adjacent grass shoulder). The parties appear to agree that the width of the pavement is about 12 feet within the wider 30-foot easement area claimed by plaintiff. The paved drive begins at Old Dunstable Road and at its other end branches to the left (serving plaintiff's land) and to the right (serving defendants' house lot). What is not shown by the parties' submissions is the extent to which the "hammerhead" terminus of the paved way coming in from the street will or will not provide sufficient maneuvering room for vehicles exiting from plaintiff's lot and seeking to reverse direction to drive head-first out to the public street. No plans, photographs, measurements, or descriptive sworn statements address this pivotal point, and, in particular, show if and how the recent fence and shrub installation has limited the plaintiff's long-time use of the way so as to prevent this maneuver. Court encouraged the parties to achieve an understanding to allow the plaintiff to use the current paved way adequately and obviate the need for the court to act on the request for preliminary injunction. Court to withhold any action on plaintiff's application for preliminary injunctive relief to afford parties the opportunity to reach an interim agreement, and, failing that, to supplement the injunction record. Counsel to confer promptly and attempt to reach a mutually agreeable solution that might remain in place with the parties' consent during the pendency of this action, and to notify court of any such agreement. If, despite their best reasonable efforts, parties are unable to reach agreement, by November 1, 2021, plaintiff to file renewed request for preliminary injunction with proper evidentiary support, and defendants to file any renewed opposition by the same date; following receipt of the parties' submissions, court to act without further hearing unless otherwise ordered. (Piper, C.J.) Hon. Gordon H. Piper, Presiding Notice sent to the following parties: Nancy Ann Morency, Esq., John F. Gallant, Esq. and Thomas E. Sartini. III, Esq.
- Joint Motion to Continue Case Management Conference, filed (by email).
- Supplement to Defendants' Opposition to Plaintiff's Application for Temporary Restraining Order and/or Injunctive Relief, filed (by email).
- Affidavit of Thomas E. Sartini, III in Support of Defendant's Opposition to Plaintiff's Application for Temporary Restraining Order and/or Injunctive Relief, filed (by email).
- Affidavit of: Nicole S Pelletier, filed (by email).
- Affidavit of: Bobby J Pelletier, filed (by email).
- Plaintiff's Renewed Motion for Temporary Restraining Order and/or Injunctive Relief, filed (by email).
- Memorandum of Law in Support of Plaintiff's Renewed Motion for Temporary Restraining Order and/or Injunctive Relief, filed (by email).
- Affidavit of Virginia A. Vollmar, filed (by email).
- (Plaintiff's Proposed) Order on Plaintiff's Renewed Motion for Temporary Restraining Order and /or Injunctive Relief, filed (by email).
- Event Resulted: Case Management Conference scheduled on: 11/09/2021 02:00 PM Has been: Rescheduled For the following reason: Request of all Parties Hon. Gordon H. Piper, Presiding
- Event Scheduled Judge: Piper, Hon. Gordon H. Event: Case Management Conference Date: 11/17/2021 Time: 11:00 AM
- Summons returned to Court with service on Bobby J. Pelletier, Nicole S. Pelletier filed. Summons served on 10/19/2021 delivered in hand to Bobby J. Pelletier and a copy left to Nicole S. Pelletier with Bobby S. Pelletier.
- Answer and Counterclaim Parties, filed.
- Joint Case Management Conference Statement, filed (by email).
- Defense Counsel's Motion to Continue Case Management Conference, filed (by email).
- Nov. 15, 2021. Defendant's motion, filed today, seeking to continue the case management conference currently scheduled for Wednesday, November 17, 2021 is ALLOWED. The conference is continued. Counsel are to advise the Recorder's office (John Batlle, Sessions Clerk) promptly if there is any material reason the case management conference could not be held, via ZOOM, on Wednesday, December 1, 2021 at 11:00 am. Unless counsel advise the court by November 16, 2021 of an insurmountable conflict with proceeding at 11:00 a.m. on December 1st, 2021, the court will reschedule the conference to then. (Piper, C.J.) Judge: Piper, Hon. Gordon H. Notice sent to the following parties by email: Nancy Ann Morency, Esq., John F. Gallant, Esq. and Thomas E. Sartiini, III, Esq.
- Event Resulted: Case Management Conference scheduled on: 11/17/2021 11:00 AM Has been: Continued For the following reason: Request of Defendant(s) Hon. Gordon H. Piper, Presiding
- Event Scheduled Judge: Piper, Hon. Gordon H. Event: Case Management Conference Date: 12/01/2021 Time: 11:00 AM
- Answer to Counterclaim, filed.
- Event Resulted: Case Management Conference scheduled on: 12/01/2021 11:00 AM Has been: Held via video December 1, 2021. Case Management Conference held via videoconference. Early Intervention Event held. Attorney John Gallant appeared for plaintiff. Attorney Thomas Sartini appeared for defendants. Attorney Gallant confirmed that plaintiff's claim of interference with her right to pass and repass arises from the recorded easement instrument establishing the thirty-foot-wide driveway easement area, but that her claim to a right to conduct landscaping in that same area would instead need to have arisen from facts showing acquisition of that right based on use, relying on a theory of prescription. Court observed, and counsel concurred, that as the case now is pleaded, there are no claims of acquisition of rights based on use. Court cautioned that any reciprocal tort claims concerning the trees on defendants' property (whether alleging property damage caused by the trees, or the unauthorized girdling of them) may fall outside the scope of the court's ancillary jurisdiction if not related sufficiently to a dispute involving a right, title, or interest in land. As this case appears to be amenable to consensual resolution by the parties, court urged counsel to confer in pursuit of a mutually agreeable settlement, and to consider engaging a third-party neutral to assist in such discussions. Counsel reported that the parties are willing to participate in mediation. By December 22, 2021, counsel to file joint report indicating parties have conferred, whether parties have made arrangements for a mediation session, and if so, naming mediation provider, identity of neutral, and date of session. If parties have not scheduled mediation by December 22, 2021, court may then or later order parties to mediation screening. Attorney Gallant indicated plaintiff's position to be that, if not resolved consensually, including by way of mediation, this matter likely can be resolved on summary judgment; Attorney Sartini did not agree, and believes trial would be required. If mediation not held, or does not resolve all issues in this case, discovery to close May 31, 2022, including the completion of all expert discovery and disclosures by that date. By close of discovery, parties to submit joint report stating that discovery is complete, detailing what discovery has been taken, and which either (1) reports intent to file dispositive motion(s), indicates who first will file, and as to what issue(s); the first such motion to be filed by June 30, 2022, with Land Court Rule 4 to govern content of that filing and timing and content of subsequent filings; or (2) if no party intends to file dispositive motion, parties in their joint report to request pretrial conference. The court conducted further colloquy with counsel concerning the parties' submissions in support of and in opposition to plaintiff's November 3, 2021 Renewed Motion for Temporary Restraining Order and/or Injunctive Relief, reviewing with counsel the supplemental filings made with the court's approval following the initial hearing on preliminary injunction. Applying the standards under Mass. R. Civ. P. 65 for issuance of injunctive orders, the court DENIED plaintiff's motion. Pursuant the standards under Mass. R. Civ. P. 65 for issuance of injunctive orders, in reviewing plaintiff's request for preliminary relief, court is obliged to consider plaintiff's "likelihood of success on the merits, [her] claim of injury, and finally, a balancing of the competing harms to each party." General Accident Insurance Co. of America v. Bank of New-England-West, N.A., 403 Mass. 473, 475 (1988) (citation omitted). The court concluded that, considering these factors together, the preliminary record assembled does not show plaintiff to be entitled to the extraordinary relief of a preliminary injunction during the pendency of the case. Principally, in evaluating the likelihood of immediate and irreparable harm to plaintiff, the court found that the limited evidence in the record does not indicate convincingly that the presence of a portion of defendant's newly-installed split rail fence within plaintiff's record easement area (but some feet away from the paved driveway itself) materially impairs the ability of plaintiff or her invitees to navigate by vehicle in and out of plaintiff's property. While the evidence offered by the parties is conflicting, there is compelling support for defendants' contention that the Y-shaped intersection of the parties' driveways provides sufficient room for vehicles exiting backwards from plaintiff's lot to reverse direction so that they can drive head-first out to the public street over the remaining length of the easement area, and that this maneuver can be accomplished reasonably and without any material difficulty. The record further shows that there also is adequate space within the currently paved driveway area directly abutting plaintiff's garage (and certainly when including the unpaved shoulder between the driveway and fence) for plaintiff to conduct her preferred maneuver-a three-point-turn in front of her garage-without being impeded by the fence. The evidence in support of plaintiff's contention that the ability to accomplish either maneuver will be hampered significantly by snow and ice during the winter season was minimal and unpersuasive. The court finds that plaintiff (and the occupants of her home and the invitees to it) have for some considerable time been successful in driving safely from the plaintiff's property to Old Dunstable Road using the paved portions of the easement area, making adequate maneuvers to reverse direction and proceed head first to the public way without the need to depart from the paved area, i.e., without the necessity of using the unpaved shoulder (and certainly not the portion of the unpaved area recently limited by the new fence). Video shows a passenger vehicle leaving the garage of plaintiff's dwelling, backing easily down the first segment of the easement area that long has been paved, and then reversing direction efficiently to proceed head-first the remainder of the length of the driveway to the street. The need to use now the unpaved area to perform maneuvers of this sort safely (after many years of not having needed to leave the pavement) was not sufficiently shown by the preliminary injunction record. The court thus concluded that the fence's continued existence during the pendency of this action presents little to no risk of irreparable harm to plaintiff, and there accordingly is no need for the issuance of any injunctive relief at this time. However, court further noted that, should there be further encroachment or obstruction of the easement that makes it more difficult to navigate the driveway than currently, plaintiff may file renewed application for preliminary injunction detailing the changed circumstances that justify such relief. And plaintiff may prove, when trial is held and the case is considered on the merits, that the fence and plantings do in fact impede plaintiff's lawful easement rights; that showing, however, is not made on this preliminary record adequately to justify issuance of the requested injunction. (Piper, C.J.) Hon. Gordon H. Piper, Presiding Notice sent via email to the following parties: Nancy Ann Morency, Esq., John F. Gallant, Esq. and Thomas E. Sartini, III, Esq.
- Alternative Dispute Resolution: Early Intervention Event held. Judge: Piper, Hon. Gordon H.
- Joint Status Report, filed (by email).
- Plaintiff's Status Report, filed.
- June 28, 2022. The court is in receipt of the plaintiff's status report filed June 3, 2022. In their earlier joint status report, filed December 20, 2021, counsel advised the court that "[t]he Parties have agreed to discuss and exchange settlement proposals between counsel for a period of three (3) weeks " and that "[i]n the event the parties are not able to fully resolve the pending matter, including the counterclaim, after three weeks, the parties agree to mediate this matter with a retired justice member of REBA Dispute Resolution, Inc." Nothing further was filed in this case until the filing of the plaintiff's status report on June 3, 2022, in which plaintiff recounts unsuccessful efforts to proceed with settlement discussions, and "to schedule mediation in accordance with the Parties' previously filed Joint Status Report, which was refused by Defendants." Plaintiff accordingly now has asked for a discovery extension, to be followed by a pre-trial conference. Those requests are denied at this time. Instead, the court will hold the parties to their undertakings, communicated to the court in their December 20, 2021 status report, that they have agreed to mediate this matter with a retired judge on the panel of neutrals of REBA Dispute Resolution, Inc. The parties, through their counsel, are to confer and cooperate with all possible dispatch and in the utmost good faith to schedule, hold, and participate in a session of mediation before a member of the panel of REBA Dispute Resolution, Inc. who is a retired justice. The parties are to share the reasonable costs of the mediation equally, and to participate with their counsel in the session, and to engage in the process of mediation in good faith and with an earnest effort to attempt to settle this case, as they have committed to the court they will do. The mediation session is to be scheduled not later than July 13, 2022 (with the particulars, including the date of the mediation and the identity of the neutral communicated in a joint report to the court by that date) and the mediation session is to be held not later than August 2, 2022, with the results of the mediation session to be communicated to the court in a joint report to be filed with and received by the court not later than two days following the date the session is held. The Recorder is to transmit a copy of this order of the court to REBA Dispute Resolution, Inc. (Piper, C.J.) Notice of Docket Entry was generated and sent to: Plaintiff: John F Gallant, Esq. [email protected] Plaintiff: Nancy Ann Morency, Esq. [email protected] Defendant: Thomas E Sartini, III, Esq. [email protected] null: File Copy Sent On: 06/28/2022 09:12:25
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