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COMMONWEALTH OF MASSACHUSETTS
The Trial Court of the Commonwealth
BRISTOL, ss. SUPERIOR COURT
DOCKET NO.: 1773CV01030
CAROLYN O’REAGAN and
MICHAEL O°REAGAN,
Plaintiffs, BRISTOL SS SUPERIOR COURT
ve FILED
JEFFREY J, ROBERTS, RACHAEL DEC 9 2019
P. ROBERTS, JOSEPH PONTE d/b/a
PONTE & ASSOCIATES, TARA
SCHRYVER, and DUMONT HOME
INSPECTION SERVICES, INC.,
Defendants. )
REPLY IN SUPPORT OF DEFENDANTS JEFFREY AND RACHEL ROBERTS’
MOTION FOR SUMMARY JUDGMENT
MARC J SANTOS, ESQ.
CLERK/MAGISTRATE
wee eer
The Defendants, Jeffrey and Rachel Roberts (hereinafter referred to as the “Roberts”),
submit this reply memorandum in further support of their Motion for Summary Judgment.
STANDARD OF REVIEW APPLICABLE TO REPLY MEMORANDUM.
In opposing a motion for summary judgment, "the opposing party cannot rest on his or her
pleadings and mere assertions of disputed facts to defeat the motion for summary judgment."
LaLonde v. Eissner, 405 Mass. 207, 209 (1989). Furthermore, "the nonmoving party cannot create
a material issue of fact and defeat summary judgment simply by submitting affidavits that
contradict its previously sworn statement." Ng Brothers Const.. Inc. v. Cranney, 436 Mass. 638,
649 (2002). The Plaintiffs are attempting to utilize both strategies in their Opposition, which are
expressly prohibited by the above case law!.
‘In addition, the Plaintiffs appear to be applying the standard of review for a motion to dismiss, as opposed to that of
a motion for summary judgment, based upon the reference to terms such as "allege," "alleged," “allegations,”
Page 1 of 4I. CAROLYN O'REAGAN'S AFFIDAVIT ATTACHED TO PLAINTIFFS' OPPOSITION
IS_SELF-SERVING, DEVOID OF ANY EVIDENTIARY CITATIONS, AND
CONTRADICTS PREVIOUSLY SWORN TESTIMONY.
Carolyn O'Regan's affidavit should not be considered by this Court as it is self-serving,
contains no evidentiary citations, and contradicts her own prior sworn testimony.
First, Mrs. O'Reagan states in her affidavit that she was unable to understand Dumont's
inspection report and unable to read it. See Aff. of Carolyn O'Reagan at ¢ 13. However, Plaintiffs
have admitted that Mrs. O'Reagan never read the report prior to signing the purchase and sale
agreement and that Mr. O'Reagan was aware of everything in the report prior to purchasing the
property. See SOF at JJ 35, 90. Next, Mrs. O'Reagan states in her affidavit, without citation, that
the "Roberts failed to disclose the unsafe nature of the structure of the premises and its systems
despite their knowledge of same." See Aff. of Carolyn O'Reagan at ] 32. However, Plaintiffs have
admitted that they did not ask the Roberts about any structural, mechanical, or electrical defects
that existed on the property. See SOF at (91. Finally, Mrs. O'Reagan states in her affidavit that
she asked the Roberts at the closing whether the property needed any major repairs. See Aff. of
Carolyn O'Reagan at { 13. However, the Plaintiffs admitted that " [a]t the closing, there was no
talk about repairs to be done to the Property, the condition of the property, any structural issues,
any issue with the deck, and any issue with the roof." See SOF at { 84.
Based upon the above, Mrs. O'Reagan's affidavit should not be considered by this Court
and summary judgment should enter in favor of the Roberts.
Il. PLAINTIFFS’ OPPOSITION FAILS TO ADDRESS THE ROBERTS' M.G.L. c. 231, §
6F CLAIM ENTIRELY AND AS SUCH IT SHOULD BE DEEMED WAIVED.
“inferences,” "given the facts alleged," "Plaintiffs allege,” "Plaintiffs have alleged," “under Rule 12(b)(6)," and “upon
which relief can be granted.” See Pl.'s Opp. at pp. 15, 16, 20, 21. 22, 23, and 24,
Page 2 of 4The Plaintiffs’ opposition is devoid of any argument opposing the Roberts’ M.G.L. c. 231,
§ 6F claim. Moreover, based upon the arguments advanced, supra, it is clear that there exists
further evidence which warrant a section 6F award as one of the named Plaintiffs is now submitting
an affidavit to this Court containing items. which clearly contradict prior sworn testimony and
unopposed facts submitted to this Court pertinent to the within motion for summary judgment.
See Danger Records, Inc. v. Berger, 444 Mass. 1, 6 — 7 (2005) (§ 6F standard met when there was
no evidence “other than [the party’s] own testimony” and documents designed to “conjure up”
false evidence). As such, seeing as Plaintiffs' argument is completely underdeveloped, not even
addressed in their opposition, and it appears that they continue to engage in frivolous behavior, the
Roberts renew their request for said costs and fees pursuant to M.G.L. c. 231, § 6F.
CONCLUSION
WHEREFORE, for the reasons set forth above and in the Roberts’ principal Memorandum
in Support, the Roberts respectfully request that this Honorable Court grant summary judgment in
their favor.
Respectfully Submitted,
The Defendants,
Jeffrey and Rachel Roberts,
By Their Attorneys,
Dated: iz}4 | q /
Patrick T. ews, Esq. BBO # 629498
ptmatthews@fallriverattorneys.com
Jordan J. Rodrigues, Esq. BBO# 696365
jrodrigues@fallriverattorneys.com
Coastal Legal Affiliates, P.C.
P.O. Box 1870
Fall River, MA 02722
Tel: 508-676-6900
Fax: 508-676-9908
Page 3 of 4CERTIFICATE OF SERVICE
I, Jordan J. Rodrigues, Esq., do hereby certify that I have served a copy of the REPLY IN
SUPPORT OF DEFENDANTS JEFFREY AND RACHEL ROBERTS’ MOTION FOR
SUMMARY JUDGMENT by e-mailing and mailing a copy thereof, postage paid to the
individuals listed below on this 9" day of December, 2019.
Chambers Law Office
Joseph Spinale, Esq.
220 Broadway, Suite 404
Lynnfield, MA 01940
Sloane and Walsh, LLP
Gail Ryan, Esq.
One Center Plaza, 8 Floor
Boston, MA 02108
Hinshaw and Culbertson, LLP
Alyssa Aquino, Esq.
53 State Street, 27" Floor
Boston, MA 02109
Jordan 7 (a Esq.
Page 4 of 4
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#uDl COMMONWEALTH OF MASSACHUSETTS The Trial Court of the Commonwealth BRISTOL, ss. SUPERIOR COURT DOCKET NO.: 1773CV01030 CAROLYN O’REAGAN and MICHAEL O°REAGAN, Plaintiffs, BRISTOL SS SUPERIOR COURT ve FILED JEFFREY J, ROBERTS, RACHAEL DEC 9 2019 P. ROBERTS, JOSEPH PONTE d/b/a PONTE & ASSOCIATES, TARA SCHRYVER, and DUMONT HOME INSPECTION SERVICES, INC., Defendants. ) REPLY IN SUPPORT OF DEFENDANTS JEFFREY AND RACHEL ROBERTS’ MOTION FOR SUMMARY JUDGMENT MARC J SANTOS, ESQ. CLERK/MAGISTRATE wee eer The Defendants, Jeffrey and Rachel Roberts (hereinafter referred to as the “Roberts”), submit this reply memorandum in further support of their Motion for Summary Judgment. STANDARD OF REVIEW APPLICABLE TO REPLY MEMORANDUM. In opposing a motion for summary judgment, "the opposing party cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment." LaLonde v. Eissner, 405 Mass. 207, 209 (1989). Furthermore, "the nonmoving party cannot create a material issue of fact and defeat summary judgment simply by submitting affidavits that contradict its previously sworn statement." Ng Brothers Const.. Inc. v. Cranney, 436 Mass. 638, 649 (2002). The Plaintiffs are attempting to utilize both strategies in their Opposition, which are expressly prohibited by the above case law!. ‘In addition, the Plaintiffs appear to be applying the standard of review for a motion to dismiss, as opposed to that of a motion for summary judgment, based upon the reference to terms such as "allege," "alleged," “allegations,” Page 1 of 4I. CAROLYN O'REAGAN'S AFFIDAVIT ATTACHED TO PLAINTIFFS' OPPOSITION IS_SELF-SERVING, DEVOID OF ANY EVIDENTIARY CITATIONS, AND CONTRADICTS PREVIOUSLY SWORN TESTIMONY. Carolyn O'Regan's affidavit should not be considered by this Court as it is self-serving, contains no evidentiary citations, and contradicts her own prior sworn testimony. First, Mrs. O'Reagan states in her affidavit that she was unable to understand Dumont's inspection report and unable to read it. See Aff. of Carolyn O'Reagan at ¢ 13. However, Plaintiffs have admitted that Mrs. O'Reagan never read the report prior to signing the purchase and sale agreement and that Mr. O'Reagan was aware of everything in the report prior to purchasing the property. See SOF at JJ 35, 90. Next, Mrs. O'Reagan states in her affidavit, without citation, that the "Roberts failed to disclose the unsafe nature of the structure of the premises and its systems despite their knowledge of same." See Aff. of Carolyn O'Reagan at ] 32. However, Plaintiffs have admitted that they did not ask the Roberts about any structural, mechanical, or electrical defects that existed on the property. See SOF at (91. Finally, Mrs. O'Reagan states in her affidavit that she asked the Roberts at the closing whether the property needed any major repairs. See Aff. of Carolyn O'Reagan at { 13. However, the Plaintiffs admitted that " [a]t the closing, there was no talk about repairs to be done to the Property, the condition of the property, any structural issues, any issue with the deck, and any issue with the roof." See SOF at { 84. Based upon the above, Mrs. O'Reagan's affidavit should not be considered by this Court and summary judgment should enter in favor of the Roberts. Il. PLAINTIFFS’ OPPOSITION FAILS TO ADDRESS THE ROBERTS' M.G.L. c. 231, § 6F CLAIM ENTIRELY AND AS SUCH IT SHOULD BE DEEMED WAIVED. “inferences,” "given the facts alleged," "Plaintiffs allege,” "Plaintiffs have alleged," “under Rule 12(b)(6)," and “upon which relief can be granted.” See Pl.'s Opp. at pp. 15, 16, 20, 21. 22, 23, and 24, Page 2 of 4The Plaintiffs’ opposition is devoid of any argument opposing the Roberts’ M.G.L. c. 231, § 6F claim. Moreover, based upon the arguments advanced, supra, it is clear that there exists further evidence which warrant a section 6F award as one of the named Plaintiffs is now submitting an affidavit to this Court containing items. which clearly contradict prior sworn testimony and unopposed facts submitted to this Court pertinent to the within motion for summary judgment. See Danger Records, Inc. v. Berger, 444 Mass. 1, 6 — 7 (2005) (§ 6F standard met when there was no evidence “other than [the party’s] own testimony” and documents designed to “conjure up” false evidence). As such, seeing as Plaintiffs' argument is completely underdeveloped, not even addressed in their opposition, and it appears that they continue to engage in frivolous behavior, the Roberts renew their request for said costs and fees pursuant to M.G.L. c. 231, § 6F. CONCLUSION WHEREFORE, for the reasons set forth above and in the Roberts’ principal Memorandum in Support, the Roberts respectfully request that this Honorable Court grant summary judgment in their favor. Respectfully Submitted, The Defendants, Jeffrey and Rachel Roberts, By Their Attorneys, Dated: iz}4 | q / Patrick T. ews, Esq. BBO # 629498 ptmatthews@fallriverattorneys.com Jordan J. Rodrigues, Esq. BBO# 696365 jrodrigues@fallriverattorneys.com Coastal Legal Affiliates, P.C. P.O. Box 1870 Fall River, MA 02722 Tel: 508-676-6900 Fax: 508-676-9908 Page 3 of 4CERTIFICATE OF SERVICE I, Jordan J. Rodrigues, Esq., do hereby certify that I have served a copy of the REPLY IN SUPPORT OF DEFENDANTS JEFFREY AND RACHEL ROBERTS’ MOTION FOR SUMMARY JUDGMENT by e-mailing and mailing a copy thereof, postage paid to the individuals listed below on this 9" day of December, 2019. Chambers Law Office Joseph Spinale, Esq. 220 Broadway, Suite 404 Lynnfield, MA 01940 Sloane and Walsh, LLP Gail Ryan, Esq. One Center Plaza, 8 Floor Boston, MA 02108 Hinshaw and Culbertson, LLP Alyssa Aquino, Esq. 53 State Street, 27" Floor Boston, MA 02109 Jordan 7 (a Esq. Page 4 of 4