Pre Trial Motion in Philip J Mazzola Trustee of The Seventeen Wingaersheek Realty Trust vs. O'Brien, John F et al| Trellis.Law

On October 17, 2016 a Motion-Secondary was filed involving a dispute between Mazzola, Philip J, and O'Brien, Bonita J, O'Brien, John F, for Equitable Remedies in the District Court of Essex County.

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COMMONWEALTH OF MASSACHUSETTS 32
ESSEX, ss. SUPERIOR COURT DEPARTMENT
CIVIL ACTION NO.: 1677-CV-01587

PHILIP J. MAZZOLA, as |
TRUSTEE OF THE SEVENTEEN
WINGAERSHEEK REALTY TRUST,
Plaintiff

JOHN F, O'BRIEN, ctal.,
Defendants

JOINT PRE-TRIAL MEMORANDUM

Agreed Facts

Plaintiff Philip J. Mazzola, Trustee of the Seventeen Wingaersheek Realty Trust, is the

owner of, and resides;at, the real property located at 17 Wingaersheek Road, Gloucester,

Massachusetts (the “Mazzola Property”), as more particularly shown as “Lot 10” on the

plan entitled “Plan of Land at Wingaersheck Beach, Gloucester, Mass,” dated July 19,

1960, recorded in the Esscx (South) Registry of Deeds (the “Registry”) in Plan Book 95,

Plan 6 (the “Lot Plan”). ‘The Lot Plan is attached to the Complaint as Exhibit A and

incorporated hercin by reference.

Defendants John F. O’Brien and Bonita J. O’Brien are the owners of the real property

located at 8 Sand Dellar Circle, Gloucester, Massachusetts (the “O"Bricn Property”), as

more particularly shown as “Lot D” on the Lot Plan,

The Mazzola Property and the O’Brien Property were once commonly owned by Bengt

Eriksson, as Trustee of the Ellis Farm Trust, as more particularly shown on the deed of

Ehzabeth Abbolt Smith to Bengt Eriksson. as Trustee u/d/t known as Ellis Farm Trust,

dated August 20, 1960, recorded in the Registry in Book 4704, Page 213. A truc and
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accurate copy of said deed is attached to the Complaint as Exhibit B and incorporated

herein by reference.

Common grantor Eriksson, as Trustec of the Ellis Farm Trust, conveyed, in chronological

order, the Mazzola Property and then the O'Brien Property, as evidenced by the

following:

The Mazzola Property.

L By deed dated June 5, 1963, Bengt Eriksson, as Trustee of the Lilis Farm

Trust, conveyed to Evelyn I. Hosmer title lo the Mazzola Property, recorded

in the Registry in Book $079, Page 514 (the “IYosmer Deed”), A true and

accurate copy of the Hosmer Deed is attached hereto as Exhibit C and

incorporated herein by reference.

a. The Hosmer Deed contains, in pertinent part, the following language:

“Said: premises are conveyed subject to the restrictions that it... shall

be used for single family dwelling purposes only; and subject to a right

of way across the northwesterly side of said [Mazzola Property] herein

conveyed fifteen feet (15°) wide, adjacent to said land of KATZEFF

and leading from said Sagamore Road to Wingaershcek Beach,

approximately the distance of four hundred and fifty feet (450") for the

benefit of all persons at any time owning or leasing any part of the

remaining land of the grantor, or being lawfully invited to any part of

said land, to pass and repass to and from the beach area, and for all

other purposes for which right of ways are customarily used...” (the

“Easement”).
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u By deed dated December 20, 1994, Evelyn I. Hosmer conveyed to Philip

I Mazzola and Roberta F, Mazzola, as tenants by the entirety, title to the

Mazzola Property, recorded in the Registry in Book 12868, Page 188, A

true and accurate copy of said deed is attached to the Complaint as Exhibit

D and incorporated herein by reference. Said deed refers to the Easement

in substantially similar language as that of the Hosmer Deed.

iii. By decd dated December 20, 2005, Philip J. Mazzola ct ux. conveyed to

Roberta F. Mazzola title to the Mazzola Property, recorded in the Registry

in Bock 25220, Page 472. A true and accurate copy of said deed is

altached to the Complaint as Exhibit E and incorporated herein by
'
reference. Said deed refers to the Easement in substantially similar

language as that of the Hosmer Deed.

lv, By decd dated August 6, 2007, Roberta F. Mazzola conveyed to Philip J.

Mazzole, as Trustee of the Seventeen Wingacrshcek Realty Trust, title to

the Mazzola Property, recorded in the Registry in Book 27122, Page 98.

A truc and accurate copy of said deed is atlached to the Complaint as

Exhibit F and incorporated herein by reference. Said deed conveyed the

Mazzola Property “subject to easements... and reservations of record

which are in force [a]nd applicable.”

The OBrien Propeny.

1, By deed dated September 17, 1964, common grantor Eriksson, as Trustee of
1
| the Ellis Farm ‘Trost, conveyed to Gustav Peterson and Bengt Eriksson, as

Trustees of' the Nosskire Trust u/d/t dated October 8, 1963, title to a parcel of
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land including the O’Bricn Property, recorded in the Registry in Book 5208,

Page 95.' A true and accurate copy of said deed is attached to the Complaint

as Exhibit G and incorporated hercin by reference. Said deed does not contain

the word “easement”, The Grantor reserved to itself and to the future owners

of the lots being conveyed “the rij ght to use the area between high water mark

and the ‘bank’ as shown on said plan, for bathing, beaching and mooring of

boats and for all other purposes for which a beach is customarily used.”

i. By deed dated June 15, 1965, Gustav V. Peterson and Bengt Eriksson, as

‘Trustees of the Nosskire Trust, conveyed to iugene N. Siskind, as Trustee of

the Samson Realty ‘Frust u/d/t dated December 21, 1949, title to a parcel of

land including the O’Brien Property, recorded in the Registry in Book 5277,

Page 706. -A true and accurate copy of said decd is attached to the Complaint

as Exhibit I and incorporated herein by reference. Said deed refers to the

Easement in substantially similar language as that of the Hosmer Deed The

Grantor reserved to itself and to the future owners of the Tots being conveyed

“the right to use the area between high water mark and the ‘bank’ as shown on

said plan, for bathing, beaching and mooring of boats and for all other

'
purposes for which a beach is customarily used.”

iti By deed dated October 14, 1969, Eugene N. Siskind, as Trustce of the Samson

Realty Trust, and Seymour B, Levin conveyed to Charles T. Beaton and Joan
I 1

| By confirmation deed dated April 27, 1965, Bengt Eriksson, as Trustee of the Ellis Farm Trust,
conveyed to Gustav V. Peterson and Bengt Eriksson, as Trustecs of the Nosskire Trust, titic to a
parcel of land including the O’Brien Property, recorded in the Registry in Book 5263, Page 99.
A true und accurate copy of sdid confirmation deed is attached to the Complaint as Exhibit H and
incorporated herein by reference. Said deed does not contain the word “easement”. The deed
contains the samé reservation of rights as the original deed.
|
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C. Beaton, as tenants by the entirety, title to the O*Brien Property, recorded in

the Registry in Book 5649, Page 94. A true and accurate copy of said deed is

attached to thé Complaint as Exhibit J and incorporated herein by reference.

The deed included the following language: “[T]he right for the grantee, his

heirs, assigns and his guests to use the area between mean high water mark

and the “bank” as shown on plan recorded with the Essex South Deeds Plan

Book 106, Plan 22 and sct forth in deed from the Ellis Farm ‘Trust to Hosmer,

Book 4712, Page 92, as shown on said plen, for bathing, beaching and

mooring of boats and for all other purposes for which a beach is used with the

right to usc with others legally entitled thereto, a right of way across the

northwesterly. side of Lot no. 10 on the plan above mentioned and/or in Plan

Book 95, Plan 6, 15 feet wide adjacent to land now or formerly of Katzeff and

loading from Sagamore Road to Wingaersheck Beach, approximately the

distance of 450 fect.”

Vv. By deed dated October 16, 1978, Charles T. Beaton et ux. conveyed to John

T. O'Brien (sic) and Benita (sic) J. O’Brien, as tenants by the entirety, title to

the O’Brien Property, recorded in the Registry in Book 6528, Page 293. A

true and accurate copy of said deed is attached to the Complaint as ExhibitK

and incorporated herein by reference. The decd included the following

language: “[TJhe right for the grantee, his heirs, assigns and his guests to use

the arca between mean high water mark and the “bank” as shown on plan

recorded with the Essex South Deeds Plan Book 106, Plan 22 and set. forth in

deed from the Ellis Farm ‘Trust to Hosmer, Book 4712, Page 92, as shown on
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said plan, for bathing, beaching and mooring of boats and for all other

purposes for which a beach is used with the right to use with others legally

entitled thercto, a right of way across the northwesterly side of Lot no. 10 on

the plan above mentioned and/or in Plan Book 95, Plan 6, 15 feet wide

adjacent to land now or formerly of Katzeff and leading from Sagamore Road

to Wingacrsheek Beach, approximately the distance of 450 feet.”

v. (By deed dated January 26, 1978, John I, O"Brien, a.k.a. John T. O’Brien, and

Bonila J, O'Brien, a.k.a. Benita J. O'Brien, conveyed to Kathryn M. Carpenter

title to the OBrien Property, recorded in the Registry in Book 6561, Page

1384, A true,and accurate copy of said deed is attached to the Complaint as

Exhibit L and incorporated herein by reference. Said deed recites a grant to a
,
right of way across thc northwesterly side of the Mazzola Property and

includes the following language: “|The right for the grantors, their heirs,

assigns and their guests to use the area between mean high water mark and the

“bank” as shown on plan recorded with the Essex South Deeds Plan Book

106, Plan 22.and set forth in deed from the Ellis Farm Trust to Hosmer, Book

4712, Page 92, as shown on said plan, for bathing, beaching and mooring of

‘boats and for all other purposes for which a beach is used with the right to use

‘with others legally entitled thercto, a right of way across the northwesterly

side of Lot no. 10 on the plan above mentioned and/or in Plan Book 95, Plan

6, 15 feet wide adjacent to land now or formerly of Katzeff and leading from

Sagamore Road to Wingaersheek Beach, approximately the distance of 450

feet”
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vi, By deed dated January 26, 1979, Kathryn M. Carpenter conveyed to John F.

‘O’Bricn and Bonita J. O’Brien, as tenants by the entirety, title to the O’Brien

Property, recorded in the Registry in Book 6561, Page 386. A true and
raccurate copy of said deed is attached to the Complaint as Exhibit M and

incorporated herein by reference. Said deed recites a grant to a right of way

across the northwesterly side of the Mazzola Property . The deed included the

following language: “[T'Jhe right for the grantee, his heirs, assigns and his

Guests to use the area between mean high water mark and the “bank” as shown
'
on plan recorded with the Essex South Deeds Plan Book 106, Plan 22 and set

forth in deed from the Ellis Farm Trust to Hosmer, Book 4712, Page 92, as

shown on said plan, for bathing, beaching and movring of boats and for all

other purposes for which a beach is used with the right to usc with others

Jegally entitled thereto, a right of way across the northwesterly side of Lot no.

Jo on the plan above mentioned and/or in Plan. Book 95, Plan 6, 15 feet wide

adjacent to land now or formerly of Katveff and leading from Sagamore Road

to Wingaersheek Beach, approximatcly the distance of 450 feet.

The Mazzola Property is bounded, in pertinent part, by Wingaersheck Road to the

southwest and sand dunes, which lead to the private Coffins Beach, to the northeast.

Coffins Beach adjoins Wingaersheek Beach, a public beach that strictly prohibits vehicle

use, to the ast

6. The Easement comprises mostly gravel, dirt and sand and runs the entire length of the

Mazzola Property from Wingaersheek Road to Coffins Beach.
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The Easement is located twenty feet (20°) from the Plaintiff's dwelling on the Mazzola

Property.

TI, Parties’ Statement of the Casc

laintiff's Statement of Case

As set forth in the original decd, the easement at issue in this Action states the following:

“Said premises are conveyed subject to a right of way across the northwest erly side ofof [the
erly side
laintifs Jot] herein conveyed fifleen feet (15°) wide, adjacent to said land of Katzeff and

leading trom Sagamore Road [now Wingaersheek Road] to Wingacrsheek Beach [now Coflin’s

Beach], approximately the distance of four hundred and fifty feet (450°) for the benefit of all

persons at any time owning or leasing a part of the remaining land of Ellis Farm Trust, or being

lawfully invited to any part of said land, to pass and repass to and from the beach area, and for all

other purposes for which right of ways are customarily used, insofar as now in force and

applicable,” (emphasis added). *?

The extent of the subject easement must be “ascertained from the relevant instraments

and the objective icircumstances to which thoy refer.” See Cannata_v. Berkshire Nat. Res

‘ouncil, In¢,, 73 Mass,App.Ct. 789, 795-96 (2009). The intention of the grantor of the casement

is to be gathered from “the physical condition of the premises.” See Boudreau v. Coleman, 29

Mass.App.Ct. 621. 629 (1990). The cxtent of the subject casement “depends on the
'

2 In the Defendants’ deed, the easement is described as follows: “Together with . . a right of
Way across the northwesterly side of [the PiaintifT's lot] . . 15 feet wide adjacent to ‘land now oF
formerly of Katzeff and leading from Sagamore Road [now Wingaersheck Road] to
Wingaersheck Beach [now Coffin’s Beach], approximately the distance of 450 feet.” (emphasis
added)
3 The Plaintifi’s lol is shown as “Lot 10” on the attached Plan (Essex South District Registry of
Deeds, Plan Book 95, Plan 6). The Katzetf' lol referenced in the easement language is shown as
“Lot 12 Lot 11” on said Plan. The Defendants’ lot is shown as “Lot D” on said plan. (Sec
Exhibit A — Plan)
Be

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circumstances of its creation... When created by conveyance, the grant or reservation 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 795-796,

The language of the easement and the physical conditions on the ground prove that the

casement was intended solely for foot traffic, The cascment is 15 feet wide, but 10 to 11 feet of

that width, along the common boundary between the Plaintiff's property (Lot 10 on Exhibit A)

and the property formerly owned by Katzeff (Lot 12 Lot 11 on Exhibit A), is comprised of

coastal sand dunes and tall beach grass. Accordingly, travel by motorized vehicle is not possible

along the easement without trespassing upon the Plaintif{"s land that is not part of the casement.

By using such vehicles — a truck, a car, and all-terrain vehicles - the Defendants have trespassed

on the Plaintiff's land and oyerburdened the cascment each time they have traveled along it by

vehicle.

Because the Defendants say thcy may use motorized vehicles along the easement, “the

burden rests on [them] to show that [their] right is extensive cnough to authorize the amount and

character of the |use which [they have] made of the way." See Swenson v. Marino, 306 Mass.

582, 583 (1940). The physical condition of the land comprising the easement, as stated above,

belies the Defendants’ claim of right to use motorized vchicles.

Moreover, a statute. state regulations, local regulations, and rules of the private

association of owners make it obvious that the use engaged in and claimed by the Defendants is

simply not legally possible. Section 26(¢) of Chapter 90B of the Massachusetts Gencral Laws

prohibits the operation of recrcation vehicles, as defined, on privately-owned property unless: (i)

the operator is te owner or Igssee or an immediate family member of the owner or lessee of the

subject property; (ii) the operator has in his possession “a document, signed by thc owner or
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lessee of such property or his agent, authorizing the operation of such vehicle on the property by

the operator”; or (ifi) the owner or lessce of the property has designated the area for use by such

vehicles...” Mass.Gen.Laws c. 90B. §26(e). The Defendants do not, and cannot, satisfy any of

these requirements, They do not own the property on which the easement exists. They have no

written authorization from the Plaintiff to operate on the Plaintiff's land. And the Plaintiff has

not designated the cescment for use by such vehicles, Section 26() of Chapter 90B prohibits

operation of such vehicles “in a manner that causes damage to public or private property .. .”

Tere, the Defendants’ use of vehicles has damaged the coastal dunes that protect the Plaintiff's

property, and all other property at Wingaersheck, from the ravages of the Atlantic Ocean.

The. regulations promulgated by the Environmental Police — Division of Law

Enforcement relating to the use of recreation vehicles, as defined, have the same prohibitions as

Chapter 90B, §§ 26(e) and 26(f. See 323 CMR Sections 3.03(2) and (7). Additionally, 323
CMR Section 3.03(3) prohibits the operation of recreational vehicles “within 150 feet of an

occupied residence without the permission of the owner.” Here, the easement is well within this

150 foot zone and the Plaintiff
has not given permission to the Defendants to operate recreational

vehicles within that zone.

‘The City of Gloucester’s consorvation regulations promulgated in furtherance of the

Wetlands Protection Act prohibit the alteration of protected wetland zones, buffer zones, and

coastal dune zones, The Defendants’ usc of recreational vehicles over the dunes has altered and

will alter those dunes which are within the Conservation Commission's jurisdiction. Neither the

Defendants nor the Plaintiff have obtained permission to alter the dunes, The alteration has not

bccn authorized by the Plaintiff, and it subjcets the Plaintiff to possible significant fines from the

City.

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The rules of the Wingaersheck Improvement Association prohibit the use of vehicles on

the beach and dunes

In summary, the subject easement was and is intended for foot travel only to and from the

beach. Vehicles are not permitted along the easement. The Defendants’ usc of vehicles on the

casement has overburdened it and damaged the fragile dunes. Said use also constitutes 2

nuisance and trespass on the Plaintiff's land by the Defendants and their guests. Defendant John
t
O’Brien also trespassed on the Plaintiff's land when he removed cement bollards which from the

urea where the Plaintif!’s driveway meets the sand dune portion of the easement,
,
B. Defendants’ Statement of the Case

The evidence in this matter will show thai the grantor of the easement knew that use of

the easement would require vehicles; that vehicles have been used over the casement since the

cascmont was created; and that the usc of vehicles is not harming the environment or interfering

unreasonably withithe use of the Plaintiff's property.

The deed in to the O’Briens states as follows

[T]he tight for the igrantee, his heirs, assigns and his guysts to use the
area een the mean high water mark and the “bank” as shown on plan
recorded with the Essox South Deeds Plans Book 106, Plan 22, and set
forth ini deed from the Jillis Farm Trust to Hosmer, Book 4712, Page 92,
as shown on said plan, for bathing, beaching and mooring of boats
and for all other purposes for which a beach is used with the right to
usc with others legally entitled thereof, a right of way across the
northwesterly side of Lot No. 10 on the plan above mentioned and/or in
Plan Book 95, Plan 6, 15 fee wide adjacent to land now or formerly of
Katactf and leading from Sagamore Road to Wingaersheek Beach,
approximately the
th distance of 450 feet. (Emphasis added.)

The casement languagd in the O'Brien deed allows access to the beach for “bathing,

beaching and mooring of boats. which can only be accomplished with the assistance of some

type of vehicle. Samuel J. Nigro. Jr., a former resident with deeded rights over the easement,
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testified in his deposition that he transported boats, a float, and beach equipment for himself and

his neighbors with a six-wheel vehicle over the easement regularly from the 1960s, shortly after

the casement was created in 1963, through 1999, when he sold his property. Another neighbor

with deed rights, Victoria Mullcn, testified that she drove a vehicle over the eascment in the

1970s, Defendant John O'Brien testified that he drove vehicles over the easement for decades.

‘Two current eascment holders, Paul Bruno and Ms. Mullen, testified that they currently
use
motorized carts to carry their beach chairs and coolers to the beach, In order to use the beach
for
“bathing, beaching and mooring of bouts,” a person would necessarily require transportation.

‘The Plaintiff cannot prove that the O’Briens’ use of motorized vehicles has damaged the

dune behind the Mazzola house. ‘The Plaintiff has offered no scientific or abjective evidence that

the dunc itsclf is unhealthy. In his deposition, the city’s Conservation Agent described the beach

grass on the dune as “lush” and further testified that the dune is “stable.” IF there is damage to the

dune, which has not been proved, it is far more likely to have been caused by pedestrians. The

Plaintiff's spouse testified that between 50 to 100 pedestrians usc the easement on the average

weekend day in the summer. Meanwhile, Donna Bruno, a neighbor whose property abuts the

entrance to the easement, testified that the O’Briens’ daughter, Wendy, drove an all-terrain

vehicle over the easement perhaps ten times over a couple of summers. Her husband, Paul

Bruno, testified that the O’Briens’ son, John, usually drove his A''V over the easement once per

weekend, except for Labor Day 2017. Neither Mr. nor Mrs. O’Brien has driven a motorized

vehicle over the easement in years. The Plaintiff's claim in his complaint that the Defendants

drive over the casement “at all hours of the day and not” is simply not true.

Furthermore, the occasional usc of motorized vehicles by the O’Briens has not caused a
1
substantial and unreasonable interference with the Plaintiff's use of his property. Noise itself is

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not actionable. ‘To cause a private nuisance, the level of noise must be unreasonable, substantial,

and intentional. There is no evidence that the O'Briens intended to interfere with the use of the

Mazzola property. The Plaintiff testified in his deposition that noise from motorized vehicles did

not keep him awake at night, did not interfere with his use of a television or cell phone, or keep

him from hearing conversations with guests. The Plainti{f's spouse, in her deposition, could not

give a single example of noise interfering with her use of the property. Nor did either Mr, or Mrs.

Mazzola offer any evidence of unreasonable fumes from the O'Briens’ use of 2 motorized

vehicle; Paul Bruno testified that he was not bothered by fumes from the O"Briens’ vehicle. The

Plaintiff
has failed to present dny evidence that the O’Briens have caused a nuisance.

While Mr O'Brien admits he removed the concrete bollards that the Plaintiff installed,

the Plaintiff has: not proved that Mr. O’Bricn knew that the bollards were on the Mazzola

property. Bccause intent is an csscntial element of the tort of trespass, the Plaintiff cannot prevail
1 :
on this claim,

Further testimony will show that the Wingaersheck Improvement Association has no

authority te prohibit vehicles on the beach or on this easement and that the state Environmental
‘
Police, the Gloucester Police: Department, and the Gloucester Conservation Commission have

taken no enforcement action to prevent the use of motorized vehicles on the beach or on this

easement, The Gloucester Police Department itself drives ATVs on the local beaches.

Mr. and Mrs. O’Brien, their guests and invitees have not exceeded the scope of their

rights under the basement, They have not damaged the dune or interfered with the Mazzolas’

ability to use their property. The grantor of the casement was well-aware that the right ta use this

beach for swimming, boating “and all other purposes for which a beach is used” required the use

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of a vehicle to transport chairs. boats, and other beach-related items. If the grantor intended to

limit access to pedestrian traffic, he would have written the easement to say that.

ul. Agreed Description of the Case to be Read to the Jury

In this case, Plaintiff Philip J. Mazzola, Trustee of the Seventeen Wingacrsheek Realty

Trust, alleges that Defendants John F, O'Brien and Bonita J. O"Brien have misused, abused,
and
overburdened a certain common easement, running the length of the Plaintiff's Property to

Coffin’s Beach in Gloucester, by, among other things, driving four-wheel all-terrain vehicles

along the easement. Additionally, the Plaintiff alleges that the Defendants have trespassed over

and upon portions of the Plaintiff's property not subject to the easement, have ereated a private

nuisance by way of their use of the subject easement, and have damaged the Plaintiff's real and

personal property,

The Defendants deny all of the Plaintiff's allegations. The Defendants argue that the

pérson who wrote the original casement language allowing his neighbors to access the beach

knew that vehiclés would be needed to transport boats, beach furniture, and other possessions to

the beach. The Defendants also argue that residents of the urea have been using vehicles over the

casement since the 1960s, when the casement was ercated. The Defendants also argue that the

Plaintiff has offered no evidence that occasional vehicle use of the easement is the direct cause of

any harm to the dune and that, in fact, the dune is stable. Finally, the Defendants argue that the

Plaintiff has not' proven that the Defendants had the required intent to trespass or create a

nuisance,

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wv. Statcment of Significant Legal Issues

Preclusion of Testimony of Defendant John O’Bricn, Sr.

L Pai intitt’s Position

Plaintiff's counsel attempted for several months to depose Defendant John F. O'Brien

and to take depositions of other witnesses. That effort was stymied by Mr. O'Brien’s insistence

and contention that he needed'to be present for all depositions and that due to a
health condition
all depositions should be postponed until his health improved. This Court (Feeley, J.) ordered
that all depositions other than Mr. Q°Brien’s were to go forward. Thereafter, Plaintiff's counsel
took those depositions. Additionally, Mr. O’Brien’s health apparently improved enough for him

to sit for the start of his deposition. However, that deposition was begun but not completed.
In
fact the deposition was suspended at 3:36 P.M. that day by agreement of counsel. However,
despite that agreement, Mr, O'Brien has again taken the position that he should be relieved
of the
obligation to complete his deposition.

The Plamiiff's inability to complete Mr. O*Brien’s deposition is most prejudicial to the

Plaintiff's case because the Plaintiff will be left not knowing until the time of trial what Mr,

O'Brien will say about particular subjects. Especially with regard to Parties, the purpose of

discovery and depositions is to determine the parties’ positions on the factual issues and to

permit parties to learn as best they can what the opposing: party’s position will be at trial. By

secking to avid the completion of his deposition, Mr. O’Brien is prejudicing the Plaintiff's

ability to properly prepare his case for trial.

The prejudice can be remedied in one of two ways: (1) Mr, O’Brien should be compelled

to sit for the completion of his deposition; or (2) the Defendants should be precluded at trial from

presenting any testimony from Mr. O'Brien in any form.

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2. Defendants’ Position .

The Plaintiff deposed Mr. O'Brien for a full day and had ample opportunity to question

Mr. O'Brien on all the issues! in the case, The Plaintiff subpocnaed Mr. O’Brien’s medical

records, which the Delt ‘endants.did not oppose, and was well-aware at the deposition that Mr,

O’Bricn’s medical condition could impede his further availability. IF Mr. O’Brien is medically

unavailable for the trial, relevant portions of his deposition should be read into the record,

B. Need fora View

Given the nature of the claims and defenses in this casc, the parties request a view of the

subject property.

Vv. Trial Witnesses

A. Plaintiff’. s Fact Witnesses

The Plaintiff may call one or more of the following witnesses at trial:

1 Philip J, Mazzola

2 Roberta Mazzola

John F, O'Brien, Sr.

Bonita J. O’Brien

John F. O'Brien, Jr.
Wendy Lrcolani‘

7 Paul Bruno

Donna Bruno

Kenneth Whittaker

10, Victoria Mullen

M1 Samuel Nigro

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12. Any witness listed by the Defendants,

The Plaintitf reserves the right to seasonably supplement or amend this list prior to trial.

B. Defendants’ Fact Witnesses

1 John F, O'Brien
9
2. Bonita J. O’Brien

John F. O’Brien, Jr.
1
Wendy Ercolani
Kénneth Whittaker
Samuel J, Nigro, Jr.

Keeper of Records for the Wingaersheek Improvement Association

8 Keeper of Records for the Massachusetts Department of Environmental
Protection

The Defendants reserve the right to call rebuttal witnesses or to amend this list prior to
,
trial. 1

VI. Names anid Addresses of Expert Witnesses
A Plaintiff's Expert Witnesses

The Plaintiff may call Peter Ogren, PLS, of Hayes Engineering, Inc. (603 Salem Street,

Waketield, Massachusetts) to testify consistent with, and regarding, his survey of the subject

Property and his location of the subject eascment on same. Mr. Ogren is expected to base any

testimony on his éducation, training, and experience, his work at the subject property, and on his

review of the relevant plans, worksheets, measurements, and written instruments, as well as the

relevant discovery materials in this case.

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Defendants’ Expert Witnesses

None.

VIL. Estimated Length of Jury Trial

‘The parties estimate that the trial will last approximately 4 to 5 trial days on a % day

schedule,

VIL. Itemization of Special or Liquidated Damages
!
Not applicable.
:
Certification of Counsel

The parties’ counsel hercby certify that they have discussed settlement with their clients

and that they have conferred ‘regarding same and the amenability of the case to mediation.

Additionally, counsel and the parties participated in a conciliation through the Court's

conciliation program,

X. Statement Relating to Superior Court Rule 20(2)(h)-(3)

Counsel have conferred about the provisions for case-specific management under

Superior Court Rules 20(2)(h)-(5), all of which are still under consideration.

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09/16/2019 2:41 PM FAX 9787747164 MACLEAN HOLLOWAY DOHERTY Mico2170022

Respectfully submitted. Respcetfilly submitted,
Philip J. Mazzola,
Trustee of thy Scventeen Wingaersheck Realty Trust, John F. O’Brien
* attomeys, , and Bonita J. O’Brien,
k By their attorney,

[ H. Shechan il, BBO #457060
as J, Flannagan, BBO #564328
gan Holloway Doherty & Shechan, P.C.
A, Aur
Meredith Fine, BBO #669248
@ unk 3

Law Office of Meredith A, Fine
Center Drive 46 Middle Street, Suite 2
jody, MA 01960 Gloucester, MA 01930
(978) 774-7123 (978) 515-7224
wsheehan@mhdpe.com meredith@altorneymeredithfine.com
tflannagan@mhdpe.com
1
Dated: September 16, 2019

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CERTIFICATE OF SERVIC!
1, Thomas J. Flannagan, attorney for the Plaintiff, hereby certify that on September 16, 2019, I served a
copy of the above document upon the following attomey by electronic muil, and will serve a hard copy upon same in
hand at the pretrial conference on September 17, 2019:

Meredith A. Fine, Esq.
Law Office of Meredith A. Fine
46 Middle Street, Suite 2
Gloucester, MA 01930

Thopais lamnagan

Case Info

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David A. Deakin Track Judge’s New Case

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Document Filed Date

September 16, 2019

Case Filing Date

October 17, 2016

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Motion-Secondary: Philip J Mazzola Trustee of The Seventeen Wingaersheek Realty Trust vs. O'Brien, John F et al

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