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O.2
COMMONWEALTH OF MASSACHUSETTS
ESSEX, ss. SUPERIOR COURT DEPARTMENT
CIVIL ACTION NO.: 1677-CV-1587A
PHILIP J. MAZZOLA, as
TRUSTEE OF THE SEVENTEEN
WINGAERSHEEK REALTY TRUST,
Plaintiff
Vv.
JOHN F. O'BRIEN, and
BONITA J. O’BRIEN,
Defendants )
PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
Plaintiff Philip J. Mazzola, Trustee of the Seventeen Wingaersheek Realty Trust, hereby
opposes Defendants’ Motion to Dismiss (the “Motion”). In support of this Opposition, the
Plaintiff states that, given the relatively liberal civil pleading rules in the Commonwealth’, he has
sufficiently pled the facts giving rise to his claims against the Defendants. In further support of
this Opposition, the Plaintiff states that the Defendants’ suggestion that tangible evidence’ at this
stage of the action is required is a misstatement of the law. Therefore, the Plaintiff respectfully
requests that the Court deny the Defendants’ Motion.
I Facts
The Defendants’ Motion is to be considered taking the allegations of fact contained in the
Plaintiff's Complaint, together with inferences as may be drawn therefrom in the Plaintiff's
favor, as true. Jannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), citingBell Atl. Corp.
. Twombly, 550 U.S. 544, 555 (2007). Those allegations of fact are simply and succinctly
stated in the Plaintiff's Complaint.
' See Mass.R.Civ.P. 8(f) (“All pleadings shall be so construed as to do substantial justice”).
? See Defendants’ Memorandum of Law to Support Motion to Dismiss, p. 2.
1
The Defendants benefit from an easement appurtenant, measuring nominally fifteen feet
(15’) wide, across the northwesterly side of the Plaintiff's property to access the private Coffins
Beach (hereinafter, the “Easement’). Complaint, ] 5, 7, 8. The Easement, running from
Wingaersheek Road to Coffins Beach and located approximately twenty (20°) feet from the
Plaintiff's dwelling, narrows substantially to little more than four to five (4’-5’) for so much of
the Easement as runs from the end of the gravel portion on the Plaintiff's Property to Coffins
Beach. Complaint, J 7, 8, 10. The Easement crosses coastal and sand dunes, protected habitats,
and other resources areas and portions of the Easement are located within the one hundred foot
(100’) wetlands buffer and coastal dune zones. Complaint, 7 7, 8, 10.
The Defendants have used motor vehicles and all-terrain vehicles over and on the
Easement thereby, inter alia, damaging the Easement, damaging and diminishing the value of the
Plaintiff's property, and unreasonably disturbing the Plaintiffs use of his property. Complaint,
4 12-14. This unreasonable — and unnecessary — use of the Easement, resulting in excessive
noise and emissions from the vehicles, has also substantially disturbed the peace, comfort or
enjoyment of the Plaintiff of his property. Complaint, | 19. In addition, the Defendants have
impermissibly used portions of the Plaintiffs property not subject to the Easement as a
tumaround for said motor vehicles and once wrongfully removed certain concrete structures
from the Plaintiff's property, all as having the effect of damaging the Plaintiff's property.
Complaint, {| 22-23. Notably, the Defendants do not contest those allegations of fact.
i. Standard of Review
To survive a motion to dismiss, the facts of a complaint “must be enough to raise a right
to relief above the speculative level.” Burbank Apartments Tenant Ass'n v. Kargman, 474 Mass.
107, 116 (2016), quoting Jannacchino, supra, 451 Mass. at 636. “[A] complaint should not be
dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove
no set of facts in support of his claim.” Nader v. Citron, 372 Mass. 96, 98 (1977). “[A] complaint
is sufficient against a motion to dismiss if it appears that the plaintiff may be entitled to any form
of relief, even though the particular relief he has demanded and the theory on which he seems to
rely may not be appropriate.” Id., at 104.
“tn passing on a Rule 12(b)(6) motion, the court is not to consider the unlikelihood of the
plaintiffs ability to produce evidence to support otherwise legally sufficient complaint
allegations... and notwithstanding expressions of denial and incredulousness as to ultimate proof
by the defendants.” Brum v. Town of Dartmouth, 44 Mass.App.Ct. 318, 322 (1998), rev'd in
part, 428 Mass. 684 (1999) (internal citations and internal quotations omitted).
It, Argument
A. The Plaintiff Has Pled Sufficient Facts that the Defendants Have
Misused, Abused or Overburdened the Easement
The Plaintiff has pled sufficient facts that the Defendants have misused, abused or
overburdened’ the Easement (hereinafter, “Count One”) to overcome the Defendants’ Motion, to
wit: the Defendants’ use of motor vehicles and all-terrain vehicles, at all hours of the day and
night, over and on the Easement. The Defendants’ contention that the Complaint is “notably
fact-free”* is wrong, as these allegations can in no way be characterized as “legal conclusions
cast in the form of factual allegations.” Cf Berkowitz v. President & Fellows of Harvard
College, 58 Mass.App.Ct. 262, 270 (2003). Count One is not legally complex and nor does it
rely on an intricate set of facts. The Plaintiff has specified the factual means by which it
3 The concept of overburdening applies most frequently when an easement holder has expanded the use of its
easement to the detriment of a servient landowner.” Cannata v. Berkshire Nat. Res. Council, Inc., 73 Mass.App.Ct.
789, 797 (2009).
4 See Defendants’ Memorandum of Law to Support Motion to Dismiss, p. 2.
3
contends the Defendants have misused the Easement. The Defendants’ unhappiness with those
facts is not stuff of a successful motion to dismiss. The same can be said for all three counts.
Compounding the Defendants’ oversight of the concise factual allegations contained in
Count One is their suggestion, without legal support, that Mass.R.Civ.P. 8(a) requires pleadings
to include tangible evidence. That suggestion is wrong. What is required by Mass.R.Civ.P. 8(a)
is a pleading containing “(1) a short and plain statement of the claim showing that the pleader is
entitled to relief, and (2) a demand for judgment for the relief to which he deems himself
entitled.” Mass.R.Civ.P. 8(a). The Plaintiff has met this requirement.
Although the Easement was created to give its common holders access to Coffins Beach,
its purpose was not, as the Defendants suggest, to provide those dominant estates the “broadest
possible access... without restriction.”> This conclusory overstatement is misleading,
particularly because the extent of the Easement, first appearing in the Plaintiffs chain-of-title in
1963, “depends on the circumstances of its creation... [which] must be construed with reference
to all its terms and the then existing conditions so far as they are illuminating.” Cannata, supra,
73 Mass.App.Ct. at 795-96. Indeed, what controls is “a presumed intention of the parties, to be
gathered from the language of the instruments when read in the light of the circumstances
attending their execution, the physical condition of the premises, and the knowledge which the
patties had or with which they are chargeable.” Boudreau v. Coleman, 29 Mass.App.Ct. 621, 629
(1990). Contrary to the Defendants’ assertions, the Easement is not a general grant, but rather a
limited grant of passage to and from Coffins Beach for beach purposes for the common holders.
Socony Mobil Oil Co. v. Cottle, 336 Mass. 192, 197 (1957) (a “limited right of way and [its] use
... could not be extended into a general easement greater than that contemplated or intended by
the parties to the indenture”). And, “[t]he obligation between those who hold separate or
5 Defendants’ Memorandum of Law to Support Motion to Dismiss, p. 4.
4
common easements over the same Jand is that they act reasonably in the exercise of their
privileges so as not to interfere unreasonably with the rights of other easement holders.” Cannata,
supra, 73 Mass.App.Ct. at 797. The Defendants, as pled by the Plaintiff in his Complaint, have
not acted reasonably: rather, they have used all-terrain vehicles at all hours of the day and night
over and on the Easement to the detriment of the Plaintiff and other easement holders.
Accordingly, Count One should not be dismissed.
B The Plaintiff Has Pled Sufficient Facts that the Defendants Have
Created a Nuisance
“A nuisance may result from an overly intensive use or an overburdening of an
easement.” Westchester Assocs., Inc. v. Boston Edison Co., 47 Mass.App.Ct. 133, 135 (1999)
(citations omitted). In his Complaint, the Plaintiff states that the Defendants’ inherently
dangerous use of motor vehicles and all-terrain vehicles, at all hours of the day and night, over
and on the Easement has created excessive noise and emissions thereby, inter alia, diminishing
the value of the value of the Plaintiff's property. See Rattigan v. Wile, 445 Mass. 850, 856
(2006) (“[t]he injury or annoyance must have substantially interfered with the ordinary comfort
... of human existence, or have been substantially detrimental to the reasonable use [ ] or value of
the property”) (citations and internal quotations omitted), Again, the Defendants submit that the
Plaintiff has failed to produce evidence sufficient to sustain Count Two. Again, the Defendants
mischaracterize what is required by the Plaintiff at this stage of the pleadings.
Taking the allegations of the Plaintiff's Complaint as true, a Court could reasonably infer
that the Defendants’ use of all-terrain vehicles over and on the Easement — a narrow passageway
comprised of mostly gravel, dirt and sand — has unreasonably disturbed the peace, comfort or
enjoyment of the Plaintiff occupying his property or devalued the Plaintiffs property. The
Defendants’ premature contention that proof, in the form of affidavits, photographs, or witness
testimony, of such nuisance is required at this juncture is simply wrong. Contrary to the
Defendants’ suggestions, the Plaintiffs succinct allegations of fact are sufficient to defeat their
Motion.
Cc. The Plaintiff's Claim for Trespass is Supported by the Facts and
Made in Good Faith
Similar to Count One, the Plaintiff's third claim sounding in trespass (hereinafter, “Count
Three”) is neither legally complex nor factually complicated. In Count Three, the Plaintiff
simply and concisely sets forth the facts necessary for a finding that the Defendants have
trespassed on the Plaintiff's property, to wit: the Defendants have without permission or
authority used portions of the Plaintiff's property not subject to the Easement as a turnaround for
their motor vehicles and have wrongfully removed certain structures from the Plaintiff's property
installed by the Plaintiff. See Dilbert v. Hanover Ins. Co., 63 Mass.App.Ct. 327, 333 (2005).
(“trespass equates to wrongful entry”). Those factual allegations, which must be taken as true,
are sufficient to defeat the Defendants’ Motion.
Again, at this stage of the action, there is no requirement of the Plaintiff to provide so-
called “support” for his claims. The Plaintiff seeks to put an end to the Defendants’ repeated
misuse of the Easement and exploitative trespass of the Plaintiffs property. For the Defendants
to contend that these claims have been made in bad and are wholly insubstantial and frivolous is
disingenuous.
Iv. Conclusion
For the reasons stated above, the Plaintiff respectfully requests that the Court deny the
Defendants’ Motion.
6 Defendants’ Memorandum of Law to Support Motion to Dismiss, p. 6.
7 Defendants’ Memorandum of Law to Support Motion to Dismiss, p. 7.
6
Respectfully submitted,
Philip J. Mazzola, as Trustee of
Seventeen Wingaersheek Realty Trust,
By his attorneys,
William H. echan III, BBO #457060
Alex J. Harrington, BBO #693512
MacLean Holloway Doherty & Sheehan, P.C
8 Essex Center Drive
Peabody, MA 01960
(978) 774-7123
wsheehan@mhdpec.com
aharrington@mhdpc.com
Dated: December If _, 2016
oy jE
etcan oF R COURT
ils 0EC 22 P 3 1b
CERTIFICATE OF SERVICE
I, Alex J. Harrington, attorney for Philip J. Mazzola, as Trustee of Seventeen
Wingaersheek Realty Trust, hereby certify that 1 served a copy of the above document upon all
parties or counsel of record, by email and by mailing the same, first class mail, postage prepaid,
to the following attorney of record:
Meredith A. Fine, Esq.
46 Middle Street, Suite 2
Gloucester, MA 01930
meredith@attorneymeredithfine.com
ex JH ington
Dated: December _iq_, 2016
LIE d ee 230 02
moa
Aufid ud rude 15 A398
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O.2 COMMONWEALTH OF MASSACHUSETTS ESSEX, ss. SUPERIOR COURT DEPARTMENT CIVIL ACTION NO.: 1677-CV-1587A PHILIP J. MAZZOLA, as TRUSTEE OF THE SEVENTEEN WINGAERSHEEK REALTY TRUST, Plaintiff Vv. JOHN F. O'BRIEN, and BONITA J. O’BRIEN, Defendants ) PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS Plaintiff Philip J. Mazzola, Trustee of the Seventeen Wingaersheek Realty Trust, hereby opposes Defendants’ Motion to Dismiss (the “Motion”). In support of this Opposition, the Plaintiff states that, given the relatively liberal civil pleading rules in the Commonwealth’, he has sufficiently pled the facts giving rise to his claims against the Defendants. In further support of this Opposition, the Plaintiff states that the Defendants’ suggestion that tangible evidence’ at this stage of the action is required is a misstatement of the law. Therefore, the Plaintiff respectfully requests that the Court deny the Defendants’ Motion. I Facts The Defendants’ Motion is to be considered taking the allegations of fact contained in the Plaintiff's Complaint, together with inferences as may be drawn therefrom in the Plaintiff's favor, as true. Jannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), citingBell Atl. Corp. . Twombly, 550 U.S. 544, 555 (2007). Those allegations of fact are simply and succinctly stated in the Plaintiff's Complaint. ' See Mass.R.Civ.P. 8(f) (“All pleadings shall be so construed as to do substantial justice”). ? See Defendants’ Memorandum of Law to Support Motion to Dismiss, p. 2. 1 The Defendants benefit from an easement appurtenant, measuring nominally fifteen feet (15’) wide, across the northwesterly side of the Plaintiff's property to access the private Coffins Beach (hereinafter, the “Easement’). Complaint, ] 5, 7, 8. The Easement, running from Wingaersheek Road to Coffins Beach and located approximately twenty (20°) feet from the Plaintiff's dwelling, narrows substantially to little more than four to five (4’-5’) for so much of the Easement as runs from the end of the gravel portion on the Plaintiff's Property to Coffins Beach. Complaint, J 7, 8, 10. The Easement crosses coastal and sand dunes, protected habitats, and other resources areas and portions of the Easement are located within the one hundred foot (100’) wetlands buffer and coastal dune zones. Complaint, 7 7, 8, 10. The Defendants have used motor vehicles and all-terrain vehicles over and on the Easement thereby, inter alia, damaging the Easement, damaging and diminishing the value of the Plaintiff's property, and unreasonably disturbing the Plaintiffs use of his property. Complaint, 4 12-14. This unreasonable — and unnecessary — use of the Easement, resulting in excessive noise and emissions from the vehicles, has also substantially disturbed the peace, comfort or enjoyment of the Plaintiff of his property. Complaint, | 19. In addition, the Defendants have impermissibly used portions of the Plaintiffs property not subject to the Easement as a tumaround for said motor vehicles and once wrongfully removed certain concrete structures from the Plaintiff's property, all as having the effect of damaging the Plaintiff's property. Complaint, {| 22-23. Notably, the Defendants do not contest those allegations of fact. i. Standard of Review To survive a motion to dismiss, the facts of a complaint “must be enough to raise a right to relief above the speculative level.” Burbank Apartments Tenant Ass'n v. Kargman, 474 Mass. 107, 116 (2016), quoting Jannacchino, supra, 451 Mass. at 636. “[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim.” Nader v. Citron, 372 Mass. 96, 98 (1977). “[A] complaint is sufficient against a motion to dismiss if it appears that the plaintiff may be entitled to any form of relief, even though the particular relief he has demanded and the theory on which he seems to rely may not be appropriate.” Id., at 104. “tn passing on a Rule 12(b)(6) motion, the court is not to consider the unlikelihood of the plaintiffs ability to produce evidence to support otherwise legally sufficient complaint allegations... and notwithstanding expressions of denial and incredulousness as to ultimate proof by the defendants.” Brum v. Town of Dartmouth, 44 Mass.App.Ct. 318, 322 (1998), rev'd in part, 428 Mass. 684 (1999) (internal citations and internal quotations omitted). It, Argument A. The Plaintiff Has Pled Sufficient Facts that the Defendants Have Misused, Abused or Overburdened the Easement The Plaintiff has pled sufficient facts that the Defendants have misused, abused or overburdened’ the Easement (hereinafter, “Count One”) to overcome the Defendants’ Motion, to wit: the Defendants’ use of motor vehicles and all-terrain vehicles, at all hours of the day and night, over and on the Easement. The Defendants’ contention that the Complaint is “notably fact-free”* is wrong, as these allegations can in no way be characterized as “legal conclusions cast in the form of factual allegations.” Cf Berkowitz v. President & Fellows of Harvard College, 58 Mass.App.Ct. 262, 270 (2003). Count One is not legally complex and nor does it rely on an intricate set of facts. The Plaintiff has specified the factual means by which it 3 The concept of overburdening applies most frequently when an easement holder has expanded the use of its easement to the detriment of a servient landowner.” Cannata v. Berkshire Nat. Res. Council, Inc., 73 Mass.App.Ct. 789, 797 (2009). 4 See Defendants’ Memorandum of Law to Support Motion to Dismiss, p. 2. 3 contends the Defendants have misused the Easement. The Defendants’ unhappiness with those facts is not stuff of a successful motion to dismiss. The same can be said for all three counts. Compounding the Defendants’ oversight of the concise factual allegations contained in Count One is their suggestion, without legal support, that Mass.R.Civ.P. 8(a) requires pleadings to include tangible evidence. That suggestion is wrong. What is required by Mass.R.Civ.P. 8(a) is a pleading containing “(1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which he deems himself entitled.” Mass.R.Civ.P. 8(a). The Plaintiff has met this requirement. Although the Easement was created to give its common holders access to Coffins Beach, its purpose was not, as the Defendants suggest, to provide those dominant estates the “broadest possible access... without restriction.”> This conclusory overstatement is misleading, particularly because the extent of the Easement, first appearing in the Plaintiffs chain-of-title in 1963, “depends on the circumstances of its creation... [which] must be construed with reference to all its terms and the then existing conditions so far as they are illuminating.” Cannata, supra, 73 Mass.App.Ct. at 795-96. Indeed, what controls is “a presumed intention of the parties, to be gathered from the language of the instruments when read in the light of the circumstances attending their execution, the physical condition of the premises, and the knowledge which the patties had or with which they are chargeable.” Boudreau v. Coleman, 29 Mass.App.Ct. 621, 629 (1990). Contrary to the Defendants’ assertions, the Easement is not a general grant, but rather a limited grant of passage to and from Coffins Beach for beach purposes for the common holders. Socony Mobil Oil Co. v. Cottle, 336 Mass. 192, 197 (1957) (a “limited right of way and [its] use ... could not be extended into a general easement greater than that contemplated or intended by the parties to the indenture”). And, “[t]he obligation between those who hold separate or 5 Defendants’ Memorandum of Law to Support Motion to Dismiss, p. 4. 4 common easements over the same Jand is that they act reasonably in the exercise of their privileges so as not to interfere unreasonably with the rights of other easement holders.” Cannata, supra, 73 Mass.App.Ct. at 797. The Defendants, as pled by the Plaintiff in his Complaint, have not acted reasonably: rather, they have used all-terrain vehicles at all hours of the day and night over and on the Easement to the detriment of the Plaintiff and other easement holders. Accordingly, Count One should not be dismissed. B The Plaintiff Has Pled Sufficient Facts that the Defendants Have Created a Nuisance “A nuisance may result from an overly intensive use or an overburdening of an easement.” Westchester Assocs., Inc. v. Boston Edison Co., 47 Mass.App.Ct. 133, 135 (1999) (citations omitted). In his Complaint, the Plaintiff states that the Defendants’ inherently dangerous use of motor vehicles and all-terrain vehicles, at all hours of the day and night, over and on the Easement has created excessive noise and emissions thereby, inter alia, diminishing the value of the value of the Plaintiff's property. See Rattigan v. Wile, 445 Mass. 850, 856 (2006) (“[t]he injury or annoyance must have substantially interfered with the ordinary comfort ... of human existence, or have been substantially detrimental to the reasonable use [ ] or value of the property”) (citations and internal quotations omitted), Again, the Defendants submit that the Plaintiff has failed to produce evidence sufficient to sustain Count Two. Again, the Defendants mischaracterize what is required by the Plaintiff at this stage of the pleadings. Taking the allegations of the Plaintiff's Complaint as true, a Court could reasonably infer that the Defendants’ use of all-terrain vehicles over and on the Easement — a narrow passageway comprised of mostly gravel, dirt and sand — has unreasonably disturbed the peace, comfort or enjoyment of the Plaintiff occupying his property or devalued the Plaintiffs property. The Defendants’ premature contention that proof, in the form of affidavits, photographs, or witness testimony, of such nuisance is required at this juncture is simply wrong. Contrary to the Defendants’ suggestions, the Plaintiffs succinct allegations of fact are sufficient to defeat their Motion. Cc. The Plaintiff's Claim for Trespass is Supported by the Facts and Made in Good Faith Similar to Count One, the Plaintiff's third claim sounding in trespass (hereinafter, “Count Three”) is neither legally complex nor factually complicated. In Count Three, the Plaintiff simply and concisely sets forth the facts necessary for a finding that the Defendants have trespassed on the Plaintiff's property, to wit: the Defendants have without permission or authority used portions of the Plaintiff's property not subject to the Easement as a turnaround for their motor vehicles and have wrongfully removed certain structures from the Plaintiff's property installed by the Plaintiff. See Dilbert v. Hanover Ins. Co., 63 Mass.App.Ct. 327, 333 (2005). (“trespass equates to wrongful entry”). Those factual allegations, which must be taken as true, are sufficient to defeat the Defendants’ Motion. Again, at this stage of the action, there is no requirement of the Plaintiff to provide so- called “support” for his claims. The Plaintiff seeks to put an end to the Defendants’ repeated misuse of the Easement and exploitative trespass of the Plaintiffs property. For the Defendants to contend that these claims have been made in bad and are wholly insubstantial and frivolous is disingenuous. Iv. Conclusion For the reasons stated above, the Plaintiff respectfully requests that the Court deny the Defendants’ Motion. 6 Defendants’ Memorandum of Law to Support Motion to Dismiss, p. 6. 7 Defendants’ Memorandum of Law to Support Motion to Dismiss, p. 7. 6 Respectfully submitted, Philip J. Mazzola, as Trustee of Seventeen Wingaersheek Realty Trust, By his attorneys, William H. echan III, BBO #457060 Alex J. Harrington, BBO #693512 MacLean Holloway Doherty & Sheehan, P.C 8 Essex Center Drive Peabody, MA 01960 (978) 774-7123 wsheehan@mhdpec.com aharrington@mhdpc.com Dated: December If _, 2016 oy jE etcan oF R COURT ils 0EC 22 P 3 1b CERTIFICATE OF SERVICE I, Alex J. Harrington, attorney for Philip J. Mazzola, as Trustee of Seventeen Wingaersheek Realty Trust, hereby certify that 1 served a copy of the above document upon all parties or counsel of record, by email and by mailing the same, first class mail, postage prepaid, to the following attorney of record: Meredith A. Fine, Esq. 46 Middle Street, Suite 2 Gloucester, MA 01930 meredith@attorneymeredithfine.com ex JH ington Dated: December _iq_, 2016 LIE d ee 230 02 moa Aufid ud rude 15 A398