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WY
COMMONWEALTH OF MASSACHUSETTS
ESSEX, ss. SUPERIOR COURT DEPARTMENT
CIVIL ACTION NO.: 1677-CV-01587
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 REPLY MEMORANDUM IN SUPPORT OF HIS
MOTION FOR PRELIMINARY INJUNCTION
Plaintiff Philip J. Mazzola, Trustee of the Seventeen Wingaersheek Realty Trust, hereby
submits this Reply Memorandum in support of his Motion for Preliminary Injunction against
Defendants John F. O’Brien and Bonita J. O’Brien.
I The Defendants’ Noticeably Omit Any Statement About Their Son
John
The Defendants’ allegation that three other neighbors own ali-terrain vehicles and use the
subject easement with same is refuted by the Plaintiff. See Affidavit of Philip J. Mazzola, f{ 9-11.
Conspicuous by its absence in the Affidavit of John D. O’Brien is any statement about his son
John, who the Plaintiff says is the primary offender, and his ownership of an all-terrain vehicle
and use of the easement with same. Although the Defendants have not put forth credible evidence
of such ownership or use by other neighbors, the Plaintiff, through his own personal knowledge
and via photographs and videos, has provided direct evidence of such use by the Defendants and
their son John.
IL Admissibility of the Evidence Showing Actual Damage to the Plaintiff's
Property
The Defendants are wrong that, on a motion for injunctive relief, the Plaintiff is required
to prove damages. Rather, “the moving party must show that, without the requested relief, it may
suffer a loss of rights that cannot be vindicated should it prevail after a full hearing on the merits.”
Packaging Indus. Grp., Inc. v. Cheney, 380 Mass. 609, 616 (1980) (emphasis added). The Plaintiff,
through his affidavit and photographic and video evidence, has done so. In addition, the
Defendants are equally wrong that expert testimony should be required to prove the damages to
the sand dunes and the Plaintiff's property value. McCormick v. Travelers Indem. Co., 22
Mass.App.Ct. 636, 638 (1986) (no error in allowing homeowner's personal opinion on diminution
in property value); See von Henneberg v. Generazio, 403 Mass. 519, 524 (1988) (“An owner of
property familiar with it and its uses and characteristics may testify as to its value...”). Finally,
because a hearing on a motion for preliminary injunction is not a trial on the merits, the Court may
allow “evidence to be considered in such a hearing even though it might later prove inadmissible
at trial.” Planned Parenthood League of Massachusetts, Inc. v. Operation Rescue, 406 Mass. 701,
712 n.9 (1990); See 11 C.A. Wright & A.R. Miller, Federal Practice and Procedure § 2949, at 471
(1973 ed. & 1989 Supp.) (“[I]nasmuch as the grant of a preliminary injunction is discretionary, the
trial court should be allowed to give even inadmissible evidence some weight when it is thought
appropriate to do so in order to serve the primary purpose of preventing irreparable harm before a
trial can be had”).
i. The Defendants’ Purported Harm is Convoluted
On the one hand, the Defendants claim that they neither own an all-terrain vehicle nor have
used the easement in “at least four years...” See Affidavit of John F. O’Brien, {.4. Then, on the
other hand, they claim that they would be harmed should the subject injunction issue against them.
This puzzling, circular argument is being used as Pretext to protect their son's use of all-terrain
vehicles on the easement. Although their son does not himself hold easement rights, he
unavoidably benefits from such rights as a guest and invitee of his parents. Because the injunctive
relief sought by the Plaintiff is. to maintain the status quo such that only foot travel over the
easement is permitted, the Defendants, by their own admission, will suffer no harm if they are
prohibited from doing that which they claim they are not doing, i.e. using all-terrain vehicles on
the easement.
Iv. The Defendants’ Statute of Limitations Argument is Flawed
The Defendants never raised a statute of limitations argument in their failed' Motion to
Dismiss based on their Purported non-use of all-terrain vehicles the easement. Their new statute
of limitations assertion is directly rebutted by a disinterested witness and easement holder? and the
Plaintiff's own eye witness accounts. Not surprisingly, the Defendants do not deny their use of a
pickup truck on the gravel portion of the easement, the driving and use of which constitutes
trespass for having exceeded the nominal fifteen-foot wide scope of the easement.
Vv. Conclusion
For the reasons discussed above, as well as those reasons discussed in the Plaintiff's
Memorandum of Law in Support of His Motion for Preliminary Injunction, the Plaintiff
respectfully requests that the Court issue an injunction in the form and substance attached to his
Motion as Addendum 1.
! On June 7, 2017, the Court (Tabit, J.) denied the Defendants’ Motion to Dismiss, which was filed on or about
December 23, 2016. Because of the pending Motion to Dismiss and the fact that use of the easement decreases
substantially in the winter months, the Plaintiff did not bring the subject Motion until all-terrain vehicle use by the
Defendants and their guests and invitees became extreme and unbearable.
2 See Affidavit of Paul Bruno.
Respectfully submitted,
Philip J. Mazzola, as Trustee of
Seventeen Wingaersheek Realty Trust,
By his attomne
Wilfiam H/Sheehan III, BBO #457060
AlexJ. Harrington, BBO #693512
MacLean Holloway Doherty & Sheehan, P.C.
8 Essex Center Drive
Peabody, MA 01960
(978) 774-7123
wsheehan@mhdpc.com
harrington@mbhdpe.com
Dated: September 2, 2017
ESSEX suPERIGe couRT
PHO SEP 28 A 1 39)
CERTIFICATE OF SERVICE
I, Alex Harrington, counsel for Philip J. Mazzola, Trustee, hereby certify that I have served a copy of the
above document upon all parties or counsel of record, by first class mail, postage prepaid, to the following attorney:
Meredith A. Fine, Esq.
Law Office of Meredith A. Fine
46 Middle Street, Suite 2
Gloucester, MA 01930
meredith@attomeymeredithfine.com
f
Alex Harrington
Dated: September w »2017
ESSEA SUPERIOR COURT
WOVE SEP 28 A 34
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WY COMMONWEALTH OF MASSACHUSETTS ESSEX, ss. SUPERIOR COURT DEPARTMENT CIVIL ACTION NO.: 1677-CV-01587 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 REPLY MEMORANDUM IN SUPPORT OF HIS MOTION FOR PRELIMINARY INJUNCTION Plaintiff Philip J. Mazzola, Trustee of the Seventeen Wingaersheek Realty Trust, hereby submits this Reply Memorandum in support of his Motion for Preliminary Injunction against Defendants John F. O’Brien and Bonita J. O’Brien. I The Defendants’ Noticeably Omit Any Statement About Their Son John The Defendants’ allegation that three other neighbors own ali-terrain vehicles and use the subject easement with same is refuted by the Plaintiff. See Affidavit of Philip J. Mazzola, f{ 9-11. Conspicuous by its absence in the Affidavit of John D. O’Brien is any statement about his son John, who the Plaintiff says is the primary offender, and his ownership of an all-terrain vehicle and use of the easement with same. Although the Defendants have not put forth credible evidence of such ownership or use by other neighbors, the Plaintiff, through his own personal knowledge and via photographs and videos, has provided direct evidence of such use by the Defendants and their son John. IL Admissibility of the Evidence Showing Actual Damage to the Plaintiff's Property The Defendants are wrong that, on a motion for injunctive relief, the Plaintiff is required to prove damages. Rather, “the moving party must show that, without the requested relief, it may suffer a loss of rights that cannot be vindicated should it prevail after a full hearing on the merits.” Packaging Indus. Grp., Inc. v. Cheney, 380 Mass. 609, 616 (1980) (emphasis added). The Plaintiff, through his affidavit and photographic and video evidence, has done so. In addition, the Defendants are equally wrong that expert testimony should be required to prove the damages to the sand dunes and the Plaintiff's property value. McCormick v. Travelers Indem. Co., 22 Mass.App.Ct. 636, 638 (1986) (no error in allowing homeowner's personal opinion on diminution in property value); See von Henneberg v. Generazio, 403 Mass. 519, 524 (1988) (“An owner of property familiar with it and its uses and characteristics may testify as to its value...”). Finally, because a hearing on a motion for preliminary injunction is not a trial on the merits, the Court may allow “evidence to be considered in such a hearing even though it might later prove inadmissible at trial.” Planned Parenthood League of Massachusetts, Inc. v. Operation Rescue, 406 Mass. 701, 712 n.9 (1990); See 11 C.A. Wright & A.R. Miller, Federal Practice and Procedure § 2949, at 471 (1973 ed. & 1989 Supp.) (“[I]nasmuch as the grant of a preliminary injunction is discretionary, the trial court should be allowed to give even inadmissible evidence some weight when it is thought appropriate to do so in order to serve the primary purpose of preventing irreparable harm before a trial can be had”). i. The Defendants’ Purported Harm is Convoluted On the one hand, the Defendants claim that they neither own an all-terrain vehicle nor have used the easement in “at least four years...” See Affidavit of John F. O’Brien, {.4. Then, on the other hand, they claim that they would be harmed should the subject injunction issue against them. This puzzling, circular argument is being used as Pretext to protect their son's use of all-terrain vehicles on the easement. Although their son does not himself hold easement rights, he unavoidably benefits from such rights as a guest and invitee of his parents. Because the injunctive relief sought by the Plaintiff is. to maintain the status quo such that only foot travel over the easement is permitted, the Defendants, by their own admission, will suffer no harm if they are prohibited from doing that which they claim they are not doing, i.e. using all-terrain vehicles on the easement. Iv. The Defendants’ Statute of Limitations Argument is Flawed The Defendants never raised a statute of limitations argument in their failed' Motion to Dismiss based on their Purported non-use of all-terrain vehicles the easement. Their new statute of limitations assertion is directly rebutted by a disinterested witness and easement holder? and the Plaintiff's own eye witness accounts. Not surprisingly, the Defendants do not deny their use of a pickup truck on the gravel portion of the easement, the driving and use of which constitutes trespass for having exceeded the nominal fifteen-foot wide scope of the easement. Vv. Conclusion For the reasons discussed above, as well as those reasons discussed in the Plaintiff's Memorandum of Law in Support of His Motion for Preliminary Injunction, the Plaintiff respectfully requests that the Court issue an injunction in the form and substance attached to his Motion as Addendum 1. ! On June 7, 2017, the Court (Tabit, J.) denied the Defendants’ Motion to Dismiss, which was filed on or about December 23, 2016. Because of the pending Motion to Dismiss and the fact that use of the easement decreases substantially in the winter months, the Plaintiff did not bring the subject Motion until all-terrain vehicle use by the Defendants and their guests and invitees became extreme and unbearable. 2 See Affidavit of Paul Bruno. Respectfully submitted, Philip J. Mazzola, as Trustee of Seventeen Wingaersheek Realty Trust, By his attomne Wilfiam H/Sheehan III, BBO #457060 AlexJ. Harrington, BBO #693512 MacLean Holloway Doherty & Sheehan, P.C. 8 Essex Center Drive Peabody, MA 01960 (978) 774-7123 wsheehan@mhdpc.com harrington@mbhdpe.com Dated: September 2, 2017 ESSEX suPERIGe couRT PHO SEP 28 A 1 39) CERTIFICATE OF SERVICE I, Alex Harrington, counsel for Philip J. Mazzola, Trustee, hereby certify that I have served a copy of the above document upon all parties or counsel of record, by first class mail, postage prepaid, to the following attorney: Meredith A. Fine, Esq. Law Office of Meredith A. Fine 46 Middle Street, Suite 2 Gloucester, MA 01930 meredith@attomeymeredithfine.com f Alex Harrington Dated: September w »2017 ESSEA SUPERIOR COURT WOVE SEP 28 A 34