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SON FHOR MASSACHUSETTS
ARNSTABLE, SS
BARNSTABLE, ss.
SUPERIOR COURT
FEB 19 2019 No. 1672-CV-00191
CHARLES R. KING,
NICOLE C. KING
Plaintiffs
v.
HOWARD PETER HINCKLEY
AND KATHY M. PELOQUIN,
INDIVIDUALLY AND DOING
BUSINESS AS VENTURA.
AUSTRALIAN SHEPHERDS,
TOWN OF BARNSTABLE,
THOMAS PERRY (IN HIS
CAPACITY AS BUILDING
COMMISSIONER AND ZONING:
ENFORCEMENT OFFICER
FOR THE TOWN OF
BARNSTABLE); AND BRIAN
FLORENCE, GEORGE T.
ZEVITAS, DAVID A. HIRSCH, )
MATTHEW LEVESQUE, ALEX )
RODALAKIS, HERBERT )
BODENSIEK, AND ROBIN )
YOUNG IN THEIR CAPACITY )
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
AS MEMBERS )
(AND ALTERNATES) OF THE)
BARNSTABLE ZONING __ss=*?)
BOARD OF APPEALS )
)
Defendants )
MOTION OF DEFENDANTS, HOWARD PETER HINCKLEY
AND KATHY M. PELOQUIN, FOR SEPARATE TRIAL
(ASSENTED)
NOW COME the Defendants, Howard Peter Hinckley and Kathy M. Peloquin, and
pursuant to Mass. R. Civ. P. 42(b), move this Honorable Court to enter an order directing that
the issues of the Defendants’ purported Nuisance, Breach of Protective Covenants, and_ (infliction of) Emotional Distress, be tried separately after the appeal of Zoning Board of
Appeals Decision and Petition of Writ of Mandamus.
As reasons therefore, the Defendants state that the Plaintiffs’ claims against the co-
Defendant, Town of Barnstable, have nothing to do with Defendants, Howard Peter Hinckley
and Kathy M. Peloquin, as they seek a clarification of the Town By-Law C4.1 and an order
seeking the Town to enforce the Court’s decision under Count II of the Complaint.
Defendants, Howard Peter Hinckley and Kathy M. Peloquin, did not participate in the
Town’s decision as that was made by the Zoning Board of Appeals of which neither was a
member. Furthermore, while Plaintiffs’ claims against the Town seek, in essence, a
clarification of a town’s by-law, the claims against the Defendants, Howard Peter Hinckley
and Kathy M. Peloquin, seek a determination that the Defendants acted in a willful and
malicious way. Plaintiffs’ claims against the Town are to be decided by the Court.
Plaintiffs’ claims against the Defendants, Howard Peter Hinckley and Kathy M. Peloquin, by
ajury.
As in Defiance Printed Circuit Corp., et al v. Goodwin, et al, 337 Mass. 473 (1958), a
case in which the Court affirmed dismissal pursuant to Rule 12(b), the subject complaint is
palpably “multifarious”. Id. In Defiance Printed Circuit Corp.. as in the instant case,
Plaintiffs are seeking to litigate two different and unrelated matters in one suit; an appeal of
the Zoning Board decision and an, alleged, tort case. But for the identity of the Plaintiffs and
| the fortuity of the premises being the same, the operative facts — whether the Town abused its
powers and whether the Defendants, Howard Peter Hinckley and Kathy M. Peloquin, acted in
a tortious manner — are different. While advantageous to the Plaintiffs to proceed on both
claims in one action, the Defendants, Howard Peter Hinckley and Kathy M. Peloquin, would
be prejudiced substantially as the Plaintiffs’ claim that the actions of the Town were
arbitrary, capricious, whimsical, unreasonable, unlawful and unconstitutional. None of
which could be attributable to the Defendants, Howard Peter Hinckley and Kathy M.
Peloquin. When tried before a jury, prejudice, empathy, and sympathy may result.y
Rule 42(b) confers the necessary discretion on the trial judge “to deal with the
exigencies of litigation by separating claim, parties and issues in order to receive the just,
speedy and inexpensive determination of, every action. Mass. R. Civ. P. 1; 365 Mass 730
(1974). Roddy & McNulty Insurance Agency, Inc. v. A.A. Proctor Co., 16 Mass. App. Ct.
525, 529 (1983). Motion to bifurcate trial rests solely with the discretion of the trial judge.
Dobos v. Driscoll, 404 Mass. 634, 635 (1989).
WHEREFORE, the Defendants, Howard Peter Hinckley and Kathy M. Peloquin,
respectfully request their motion be allowed.
HOWARD P. HINCKLEY AND
KATHY M. PELOQUIN, Defendants
By Their Attorney,
February 14, 2019
RUMSKI & WOODS, LLC
3010 MAIN STREET
BARNSTABLE, MA. 02630
(508) 362-6600
joe@strumskiandwoods.com
ASSENTED TO BY:
Aha Treo)
Adam T. Dupuy{Paupe (BB 104679073)
ea ONL ID
Thomas D. Houghtén, Egquire (BBO} 160¥
Charles McLaughlin, Jr., Esquire ( #336880)
Ruth Joan Weil, Esquire (BBO #519285)CERTIFICATE OF SERVICE
I, Joseph F. Strumski, Jr., hereby certify that a copy of the within document was
served upon all counsel of record hand delivering a copy of same, this 14" day of February,
2019.
February 14, 2019
x-WOODS, LLC
4010 MAIN STREET
BARNSTABLE, MA 02630
(508) 362-6600
joe@strumskiandwoods.com
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SON FHOR MASSACHUSETTS ARNSTABLE, SS BARNSTABLE, ss. SUPERIOR COURT FEB 19 2019 No. 1672-CV-00191 CHARLES R. KING, NICOLE C. KING Plaintiffs v. HOWARD PETER HINCKLEY AND KATHY M. PELOQUIN, INDIVIDUALLY AND DOING BUSINESS AS VENTURA. AUSTRALIAN SHEPHERDS, TOWN OF BARNSTABLE, THOMAS PERRY (IN HIS CAPACITY AS BUILDING COMMISSIONER AND ZONING: ENFORCEMENT OFFICER FOR THE TOWN OF BARNSTABLE); AND BRIAN FLORENCE, GEORGE T. ZEVITAS, DAVID A. HIRSCH, ) MATTHEW LEVESQUE, ALEX ) RODALAKIS, HERBERT ) BODENSIEK, AND ROBIN ) YOUNG IN THEIR CAPACITY ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) AS MEMBERS ) (AND ALTERNATES) OF THE) BARNSTABLE ZONING __ss=*?) BOARD OF APPEALS ) ) Defendants ) MOTION OF DEFENDANTS, HOWARD PETER HINCKLEY AND KATHY M. PELOQUIN, FOR SEPARATE TRIAL (ASSENTED) NOW COME the Defendants, Howard Peter Hinckley and Kathy M. Peloquin, and pursuant to Mass. R. Civ. P. 42(b), move this Honorable Court to enter an order directing that the issues of the Defendants’ purported Nuisance, Breach of Protective Covenants, and_ (infliction of) Emotional Distress, be tried separately after the appeal of Zoning Board of Appeals Decision and Petition of Writ of Mandamus. As reasons therefore, the Defendants state that the Plaintiffs’ claims against the co- Defendant, Town of Barnstable, have nothing to do with Defendants, Howard Peter Hinckley and Kathy M. Peloquin, as they seek a clarification of the Town By-Law C4.1 and an order seeking the Town to enforce the Court’s decision under Count II of the Complaint. Defendants, Howard Peter Hinckley and Kathy M. Peloquin, did not participate in the Town’s decision as that was made by the Zoning Board of Appeals of which neither was a member. Furthermore, while Plaintiffs’ claims against the Town seek, in essence, a clarification of a town’s by-law, the claims against the Defendants, Howard Peter Hinckley and Kathy M. Peloquin, seek a determination that the Defendants acted in a willful and malicious way. Plaintiffs’ claims against the Town are to be decided by the Court. Plaintiffs’ claims against the Defendants, Howard Peter Hinckley and Kathy M. Peloquin, by ajury. As in Defiance Printed Circuit Corp., et al v. Goodwin, et al, 337 Mass. 473 (1958), a case in which the Court affirmed dismissal pursuant to Rule 12(b), the subject complaint is palpably “multifarious”. Id. In Defiance Printed Circuit Corp.. as in the instant case, Plaintiffs are seeking to litigate two different and unrelated matters in one suit; an appeal of the Zoning Board decision and an, alleged, tort case. But for the identity of the Plaintiffs and | the fortuity of the premises being the same, the operative facts — whether the Town abused its powers and whether the Defendants, Howard Peter Hinckley and Kathy M. Peloquin, acted in a tortious manner — are different. While advantageous to the Plaintiffs to proceed on both claims in one action, the Defendants, Howard Peter Hinckley and Kathy M. Peloquin, would be prejudiced substantially as the Plaintiffs’ claim that the actions of the Town were arbitrary, capricious, whimsical, unreasonable, unlawful and unconstitutional. None of which could be attributable to the Defendants, Howard Peter Hinckley and Kathy M. Peloquin. When tried before a jury, prejudice, empathy, and sympathy may result.y Rule 42(b) confers the necessary discretion on the trial judge “to deal with the exigencies of litigation by separating claim, parties and issues in order to receive the just, speedy and inexpensive determination of, every action. Mass. R. Civ. P. 1; 365 Mass 730 (1974). Roddy & McNulty Insurance Agency, Inc. v. A.A. Proctor Co., 16 Mass. App. Ct. 525, 529 (1983). Motion to bifurcate trial rests solely with the discretion of the trial judge. Dobos v. Driscoll, 404 Mass. 634, 635 (1989). WHEREFORE, the Defendants, Howard Peter Hinckley and Kathy M. Peloquin, respectfully request their motion be allowed. HOWARD P. HINCKLEY AND KATHY M. PELOQUIN, Defendants By Their Attorney, February 14, 2019 RUMSKI & WOODS, LLC 3010 MAIN STREET BARNSTABLE, MA. 02630 (508) 362-6600 joe@strumskiandwoods.com ASSENTED TO BY: Aha Treo) Adam T. Dupuy{Paupe (BB 104679073) ea ONL ID Thomas D. Houghtén, Egquire (BBO} 160¥ Charles McLaughlin, Jr., Esquire ( #336880) Ruth Joan Weil, Esquire (BBO #519285)CERTIFICATE OF SERVICE I, Joseph F. Strumski, Jr., hereby certify that a copy of the within document was served upon all counsel of record hand delivering a copy of same, this 14" day of February, 2019. February 14, 2019 x-WOODS, LLC 4010 MAIN STREET BARNSTABLE, MA 02630 (508) 362-6600 joe@strumskiandwoods.com