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COMMONWEALTH OF MASSACHUSETTS
ESSEX, ss. SUPERIOR COURT DEPARTMENT
CIVIL ACTION NO.: 1677-CV-01587
PHILIP J. MAZZOLA, as
TRUSTEE OF THE SEVENTEEN S=
WINGAERSHEEK REALTY TRUST, °
Plaintiff
ws
Vv. 3
4 I
ud
JOHN F. O’BRIEN, et al., mo
Defendants
PLAINTIFF’S MOTION IN LIMINE TO PRECLUDE
DEFENDANTS FROM OFFERING EVIDENCE OF ANY PURPORTED GLOUCESTER
DISTRICT COURT DECISION OR JUDGMENT REGARDING EASEMENT RIGRTS
The Plaintiff requests that the Court preclude the Defendants from offering any evidence
of, or questioning any witnesses about, any alleged or purported case in Gloucester District Court
(in which one or both of the Defendants were parties) purportedly relating to the Defendants’
easement rights including, but not limited to, any decision, judgment, or statement of that Court
about the Defendants’ easement rights. As grounds for this Motion, the Plaintiff states the
following:
(1) “The purpose of a motion in limine is to prevent irrelevant, inadmissible or
-
prejudicial matters from being admitted in evidence.” Commonwealth vy. Vaidulas, 433 Mass.
247, 249 (2001). “Evidence is relevant if (a) it has any tendency to make a fact more or less
probable than it would be without the evidence and (b) the fact is of consequence in determining
the action.” Mass.G.Evid. § 401.
Q) The Court may exclude relevant evidence if its probative value is substantially
outweighed by a danger of unfair prejudice. See Mass.G.Evid., § 403. The Court may also
exclude relevant evidence that is hearsay or which lacks foundation.
(3) During his continued deposition on November 6, 2019, Defendant John F.
O’Brien, Sr. ~ for the very first time in this case — claimed that a judge of the Gloucester District
“told [him] that [he] can bring a horse and buggy up and down [the subject easement]”, ... [that
he has] the right to bring motor vehicles up there, tow [his] boat...” See Exhibit 1 —- Excerpts of
Continued Deposition of John F. O’Brien, Sr., p. 232. When pressed for details the Defendant
could provide none. He could not say definitively if a judgment even entered in this purported
case, when the purported case was filed, who the parties were, or when it was purportedly
litigated. See éd., pp. 229-235.
4) The Defendant’s deposition testimony constitutes hearsay ‘to which no exception
applies in this case. Moreover, Plaintiffs counsel has searched for but found no evidence of any
such action on the historical docket of Gloucester District Court. Also, as conveyed to Plaintiff's
counsel after the above-referenced deposition, Defendants’ counsel has also searched for but has
not found any evidence of such a case in Gloucester District Court, A non-existent judgment or
decision has no res judicata effect on this case.
(5) Importantly, the Defendants did not raise res judicata or any similar defense in
their Answer to the Complaint or at any other time during this case. Therefore, any such
defense, including any such defense based on the purported Gloucester District Court’ case, is
waived under well-established law. See Anthony’s Pier Four, Inc. v. HBC Associates, 411 Mass.
451, 471 (1991)(Generally, a failure to plead an affirmative defense results in the waiver of that
defense and its exclusion from the case.”)
(6) Finally, it would be far too prejudicial to the Plaintiff if the Defendants were
permitted to casually refer to an unknown judge having made a decision in their favor - on the
very issue in contention here - in a non-existent case “over 30 years ago.” See Exhibit 1, pp.
232-234.
WHEREFORE, the Plaintiff respectfully requests that the Court preclude the Defendants
from offering any evidence of, or questioning any witnesses about, any alleged or purported case
in Gloucester District Court (in which one or both of the Defendants were parties) relating to the
Defendants’ easement rights including, but not limited to, any decision, judgment, or statement
of that Court about the Defendants’ easement rights.
Res; ) submitted,
m
eS
Wil . Sheehan, III, BBO #457060
Tho . Flannagan, BBO #564328
\
i
Holloway Doherty & Sheehan, PC S
SE: enter Drive uw
De body, MA 01960 n
(9 ) 774-7123
Re
wsheehan@mhdpc.com
=
tflannagan@mhdpc.com
Dated: , 2020
CERTIFICATE OF SERVICE
I, Thomas J. Flannagan, attorney for the Plaintiff, hereby certify that on , 2020, | caused a
copy of the above document to be served upon the following attorney by mailing the same, first class mail, postage
prepaid, and by electronic mail:
Meredith A. Fine, Esq.
Law Office of Meredith A. Fine
46 Middle Street, Suite 2
Gloucester, MA 01
:
Thomas J. F)
Z2U4
SS
VOLUME: Ii
2g ORIGINAL PAGES: 204-269
EXHIBITS: 11-12
on
COMMONWEALTH OF MASSACHUSETTS
ESSEX, ss. SUPERIOR COURT DEPARTMENT
aA Ea CA No. 1677-CV-01587
oH
Be
EXHIBIT
EF
aes
PHILIP J. MAZZOLA, as TRUSTEE
OF THE SEVENTEEN WINGAERSHEEK
REALTY TRUST,
be Plaintiff,
vs.
JOHN F. O'BRIEN, et al,
Defendants
fy
a
Rg ROR
a
e
i CONTINUED DEPOSITION OF JOHN F. O'BRIEN,
a witness called on behalf of the Plaintiff,
taken pursuant to the applicable provisions of
the Massachusetts Rules of Civil Procedure,
before Susan L. Prokopik, Registered Merit
Reporter
and Notary Public in and for the
Commonwealth of Massachusetts, the offices ofat
MacLean Holloway Doherty & Sheehan, P.C., 8 Essex
Center Drive, Peabody, Massachusetts dn
Wednesday, November 6, 2019, commencing at
i 10:01 a.m. °
R.P. REPORTING
ae
d
Ee 305Vaughn Hill Road
|
tae Bolton, Massachusetts 01740
(617) 285-3369
‘
re a oa
229
give you the right to drive vehicles over their
property?
-
'd have to look at it again.
So you don't know?
I just answered that question. I said I don't
know without looking at it.
All right. So what is it you claim gives you the
xight to drive vehicles given that you don't know
if the deed that you have at home shows it and
10 you don't know if this one shows it?
11 Because I was to court before on it and they gave
12 us the right-of-way years ago because someone
13 else had problems. And I can't remember when and
14 I can't remember the time but like I said, we've
is been doing this since we moved there and the
16 people before us did it.
17 And there's ten or 11 houses still have
18 the rights to that. I'm not sure the 10 or 11
19 but
20 Now, you just mentioned being in court. What are
21 you talking about?
22 It was about the right-of-way.
23 Q. About the one across the Mazzola property?
24 Yes.
R.P. REPORTING (617) 285-3369
230
Q. And who was in court?
A. I was.
Were you a party to a case?
Yes.
Were you the plaintiff or the defendant?
I was the plaintiff.
And what was the claim that you brought?
I was the defendant. I had trouble with one of
the neighbors who lived in the house.
10 Lived in what house?
11 A. Hosmer's house.
12 Q. Hosmer --
13 The caretaker. A caretaker.
14 Hosmer's house being what?
15 Where Phil lives.
16 Right. So the house that was there before Mr.
17 Mazzola built the home that he lives in now,
18 correct?
19 Yes.
20 So you had a problem with a neighbor who lived in
21 the Hosmer house prior to Mr. Mazzola buying the
22 property?
23 The caretaker.
24 Prior to Mr. Mazzola buying the property?
~
R.P. REPORTING (617) 285-3369
231
Yes.
What was the name of the caretaker?
I don't I can't remember. It was years ago.
All right. And what was the issue that was
brought to the Court's attention in that case?
A. That he didn't want us using the right-of-way.
"He™ being the caretaker?
A. Yes.
Okay. All right. And what was the claim that
10 was made? That you couldn't use it?
11 Yes.
12 And what court was this?
13 Gloucester.
14 District Court?
15 A. Yeah. Gloucester District Court.
16 Q. Okay. Were there any other parties to the case?
17 Was it strike that.
18 Was it just you and whoever this
i9 caretaker was or was it like this case where it
20 was you and your wife and the caretaker?
21 It was myself and two caretakers.
22 Which two caretakers?
23 That were taking care of Mrs. Hosmer.
24 There were two people?
R.P. REPORTING (617) 285-3369
232
Yeah,
Okay.
Yes.
Was Mrs. Hosmer living in the house at the time?
Yes.
Were these people relatives of hers?
No. They just used the beach.
Okay. And the caretakers brought a lawsuit
against you; is that right? Or was it Miss
10 Hosmer?
11 I don't know how it read on the complaint.
12 Q. Okay. And when was this?
13 Over 30 years ago.
14 Okay. And did the case go to trial?
15 A. No.
16 How was the case resolved?
17 The judge.
18 What did the judge do?
19 The judge told me that I can bring a horse and
20 buggy up and down there. He told me I have the
21 right to bring motor vehicles up there, tow my
22 boat and the two caretakers couldn't stop us.
23 And is there a judgment, a piece of paper that
24 Says you have a right to do that?
—
R.P. REPORTING (617) 285-3369
233
A. If they have it at the courthouse, I don't know.
Do you have a copy of it?
No. It's over 30 years ago.
Q. All right. But it was an important issue back
then that you wanted to make sure that you didn't
have the issue happen again, right? You wanted
to make sure you had proof?
I knew it wouldn't happen again because all the
other neighbors had the right-of-way and they
10 were still using the path with motor vehicles.
it All right. “But you say some judge gave you
12 permission in Gloucester District Court to take
13 vehicles and other things across what is now the
14 Mazzola property, right?
15 He said they can't stop us from doing it.
16 Okay. And was that reduced to writing somewhere?
17 A. I imagine.
18 Was the case dismissed? Did it become a
19 judgment?
20 I think there was a judgment in my favor.
21 Okay. And did you have a lawyer?
22 A. No.
23 Did whoever the plaintiff was have a lawyer?
24 No.
R.P. REPORTING (617) 285-3369
234
And you didn't keep a copy of the judgment that
os
gave you these rights?
A. I don't think I have it. It's over 30 years ago.
Q. Okay. And you haven't mentioned that alleged
judgment previously in this case, have you?
A. I didn't think I'd have to.
Q. Today's the first time you brought it up, right?
Yes.
Okay. And it's in a case. You know what
10 courthouse but you don't know when?
it A. I said it had to be over 30 years ago.
12 Okay. All right. Who were the defendants or who
13 was the defendant? Was it just you or was it you
14 and Mrs. O'Brien?
15 In that case?
16 Yeah.
17 AR. It was just me.
18 So John F. O'Brien Senior?
19 Correct.
20 Q. And who was the plaintiff?
21 I told you. I don't remember the names. It was
22 over 30 years ago.
23 All right. You understand this case has been
24 about whether you have certain rights to cross
~
R.P,. REPORTING (617) 285-3369
ce
235
over the Mazzolas' property, right? You know
what this case is about?
A. Yes.
And you've known that since you were sued, right,
by the Mazzolas?
A. Yes.
Okay. In fact, you knew it even before that when
you got a demand letter from us, didn't you?
That I knew what?
10 Q. That there was an issue about what rights you had
1l to cross over their property. You knew then. Tt
12 was an issue.
13 It was an issue.
14 And yet the first time you bring up this
15 so-called judgment or whatever it is is today?
16 Because a+
17 Q. A month before the trial.
18 Yes. Because I don't have any paperwork. Over
19 30 years ago.
20 All right. All right. You can close that up. I
21 don't want to belabor the point.
22 Is it true that you don't have a
23 document signed by Mr. Mazzola authorizing the
24 operation of any vehicle on his property?
R.P. REPORTING (617) 285-3369
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COMMONWEALTH OF MASSACHUSETTS ESSEX, ss. SUPERIOR COURT DEPARTMENT CIVIL ACTION NO.: 1677-CV-01587 PHILIP J. MAZZOLA, as TRUSTEE OF THE SEVENTEEN S= WINGAERSHEEK REALTY TRUST, ° Plaintiff ws Vv. 3 4 I ud JOHN F. O’BRIEN, et al., mo Defendants PLAINTIFF’S MOTION IN LIMINE TO PRECLUDE DEFENDANTS FROM OFFERING EVIDENCE OF ANY PURPORTED GLOUCESTER DISTRICT COURT DECISION OR JUDGMENT REGARDING EASEMENT RIGRTS The Plaintiff requests that the Court preclude the Defendants from offering any evidence of, or questioning any witnesses about, any alleged or purported case in Gloucester District Court (in which one or both of the Defendants were parties) purportedly relating to the Defendants’ easement rights including, but not limited to, any decision, judgment, or statement of that Court about the Defendants’ easement rights. As grounds for this Motion, the Plaintiff states the following: (1) “The purpose of a motion in limine is to prevent irrelevant, inadmissible or - prejudicial matters from being admitted in evidence.” Commonwealth vy. Vaidulas, 433 Mass. 247, 249 (2001). “Evidence is relevant if (a) it has any tendency to make a fact more or less probable than it would be without the evidence and (b) the fact is of consequence in determining the action.” Mass.G.Evid. § 401. Q) The Court may exclude relevant evidence if its probative value is substantially outweighed by a danger of unfair prejudice. See Mass.G.Evid., § 403. The Court may also exclude relevant evidence that is hearsay or which lacks foundation. (3) During his continued deposition on November 6, 2019, Defendant John F. O’Brien, Sr. ~ for the very first time in this case — claimed that a judge of the Gloucester District “told [him] that [he] can bring a horse and buggy up and down [the subject easement]”, ... [that he has] the right to bring motor vehicles up there, tow [his] boat...” See Exhibit 1 —- Excerpts of Continued Deposition of John F. O’Brien, Sr., p. 232. When pressed for details the Defendant could provide none. He could not say definitively if a judgment even entered in this purported case, when the purported case was filed, who the parties were, or when it was purportedly litigated. See éd., pp. 229-235. 4) The Defendant’s deposition testimony constitutes hearsay ‘to which no exception applies in this case. Moreover, Plaintiffs counsel has searched for but found no evidence of any such action on the historical docket of Gloucester District Court. Also, as conveyed to Plaintiff's counsel after the above-referenced deposition, Defendants’ counsel has also searched for but has not found any evidence of such a case in Gloucester District Court, A non-existent judgment or decision has no res judicata effect on this case. (5) Importantly, the Defendants did not raise res judicata or any similar defense in their Answer to the Complaint or at any other time during this case. Therefore, any such defense, including any such defense based on the purported Gloucester District Court’ case, is waived under well-established law. See Anthony’s Pier Four, Inc. v. HBC Associates, 411 Mass. 451, 471 (1991)(Generally, a failure to plead an affirmative defense results in the waiver of that defense and its exclusion from the case.”) (6) Finally, it would be far too prejudicial to the Plaintiff if the Defendants were permitted to casually refer to an unknown judge having made a decision in their favor - on the very issue in contention here - in a non-existent case “over 30 years ago.” See Exhibit 1, pp. 232-234. WHEREFORE, the Plaintiff respectfully requests that the Court preclude the Defendants from offering any evidence of, or questioning any witnesses about, any alleged or purported case in Gloucester District Court (in which one or both of the Defendants were parties) relating to the Defendants’ easement rights including, but not limited to, any decision, judgment, or statement of that Court about the Defendants’ easement rights. Res; ) submitted, m eS Wil . Sheehan, III, BBO #457060 Tho . Flannagan, BBO #564328 \ i Holloway Doherty & Sheehan, PC S SE: enter Drive uw De body, MA 01960 n (9 ) 774-7123 Re wsheehan@mhdpc.com = tflannagan@mhdpc.com Dated: , 2020 CERTIFICATE OF SERVICE I, Thomas J. Flannagan, attorney for the Plaintiff, hereby certify that on , 2020, | caused a copy of the above document to be served upon the following attorney by mailing the same, first class mail, postage prepaid, and by electronic mail: Meredith A. Fine, Esq. Law Office of Meredith A. Fine 46 Middle Street, Suite 2 Gloucester, MA 01 : Thomas J. F) Z2U4 SS VOLUME: Ii 2g ORIGINAL PAGES: 204-269 EXHIBITS: 11-12 on COMMONWEALTH OF MASSACHUSETTS ESSEX, ss. SUPERIOR COURT DEPARTMENT aA Ea CA No. 1677-CV-01587 oH Be EXHIBIT EF aes PHILIP J. MAZZOLA, as TRUSTEE OF THE SEVENTEEN WINGAERSHEEK REALTY TRUST, be Plaintiff, vs. JOHN F. O'BRIEN, et al, Defendants fy a Rg ROR a e i CONTINUED DEPOSITION OF JOHN F. O'BRIEN, a witness called on behalf of the Plaintiff, taken pursuant to the applicable provisions of the Massachusetts Rules of Civil Procedure, before Susan L. Prokopik, Registered Merit Reporter and Notary Public in and for the Commonwealth of Massachusetts, the offices ofat MacLean Holloway Doherty & Sheehan, P.C., 8 Essex Center Drive, Peabody, Massachusetts dn Wednesday, November 6, 2019, commencing at i 10:01 a.m. ° R.P. REPORTING ae d Ee 305Vaughn Hill Road | tae Bolton, Massachusetts 01740 (617) 285-3369 ‘ re a oa 229 give you the right to drive vehicles over their property? - 'd have to look at it again. So you don't know? I just answered that question. I said I don't know without looking at it. All right. So what is it you claim gives you the xight to drive vehicles given that you don't know if the deed that you have at home shows it and 10 you don't know if this one shows it? 11 Because I was to court before on it and they gave 12 us the right-of-way years ago because someone 13 else had problems. And I can't remember when and 14 I can't remember the time but like I said, we've is been doing this since we moved there and the 16 people before us did it. 17 And there's ten or 11 houses still have 18 the rights to that. I'm not sure the 10 or 11 19 but 20 Now, you just mentioned being in court. What are 21 you talking about? 22 It was about the right-of-way. 23 Q. About the one across the Mazzola property? 24 Yes. R.P. REPORTING (617) 285-3369 230 Q. And who was in court? A. I was. Were you a party to a case? Yes. Were you the plaintiff or the defendant? I was the plaintiff. And what was the claim that you brought? I was the defendant. I had trouble with one of the neighbors who lived in the house. 10 Lived in what house? 11 A. Hosmer's house. 12 Q. Hosmer -- 13 The caretaker. A caretaker. 14 Hosmer's house being what? 15 Where Phil lives. 16 Right. So the house that was there before Mr. 17 Mazzola built the home that he lives in now, 18 correct? 19 Yes. 20 So you had a problem with a neighbor who lived in 21 the Hosmer house prior to Mr. Mazzola buying the 22 property? 23 The caretaker. 24 Prior to Mr. Mazzola buying the property? ~ R.P. REPORTING (617) 285-3369 231 Yes. What was the name of the caretaker? I don't I can't remember. It was years ago. All right. And what was the issue that was brought to the Court's attention in that case? A. That he didn't want us using the right-of-way. "He™ being the caretaker? A. Yes. Okay. All right. And what was the claim that 10 was made? That you couldn't use it? 11 Yes. 12 And what court was this? 13 Gloucester. 14 District Court? 15 A. Yeah. Gloucester District Court. 16 Q. Okay. Were there any other parties to the case? 17 Was it strike that. 18 Was it just you and whoever this i9 caretaker was or was it like this case where it 20 was you and your wife and the caretaker? 21 It was myself and two caretakers. 22 Which two caretakers? 23 That were taking care of Mrs. Hosmer. 24 There were two people? R.P. REPORTING (617) 285-3369 232 Yeah, Okay. Yes. Was Mrs. Hosmer living in the house at the time? Yes. Were these people relatives of hers? No. They just used the beach. Okay. And the caretakers brought a lawsuit against you; is that right? Or was it Miss 10 Hosmer? 11 I don't know how it read on the complaint. 12 Q. Okay. And when was this? 13 Over 30 years ago. 14 Okay. And did the case go to trial? 15 A. No. 16 How was the case resolved? 17 The judge. 18 What did the judge do? 19 The judge told me that I can bring a horse and 20 buggy up and down there. He told me I have the 21 right to bring motor vehicles up there, tow my 22 boat and the two caretakers couldn't stop us. 23 And is there a judgment, a piece of paper that 24 Says you have a right to do that? — R.P. REPORTING (617) 285-3369 233 A. If they have it at the courthouse, I don't know. Do you have a copy of it? No. It's over 30 years ago. Q. All right. But it was an important issue back then that you wanted to make sure that you didn't have the issue happen again, right? You wanted to make sure you had proof? I knew it wouldn't happen again because all the other neighbors had the right-of-way and they 10 were still using the path with motor vehicles. it All right. “But you say some judge gave you 12 permission in Gloucester District Court to take 13 vehicles and other things across what is now the 14 Mazzola property, right? 15 He said they can't stop us from doing it. 16 Okay. And was that reduced to writing somewhere? 17 A. I imagine. 18 Was the case dismissed? Did it become a 19 judgment? 20 I think there was a judgment in my favor. 21 Okay. And did you have a lawyer? 22 A. No. 23 Did whoever the plaintiff was have a lawyer? 24 No. R.P. REPORTING (617) 285-3369 234 And you didn't keep a copy of the judgment that os gave you these rights? A. I don't think I have it. It's over 30 years ago. Q. Okay. And you haven't mentioned that alleged judgment previously in this case, have you? A. I didn't think I'd have to. Q. Today's the first time you brought it up, right? Yes. Okay. And it's in a case. You know what 10 courthouse but you don't know when? it A. I said it had to be over 30 years ago. 12 Okay. All right. Who were the defendants or who 13 was the defendant? Was it just you or was it you 14 and Mrs. O'Brien? 15 In that case? 16 Yeah. 17 AR. It was just me. 18 So John F. O'Brien Senior? 19 Correct. 20 Q. And who was the plaintiff? 21 I told you. I don't remember the names. It was 22 over 30 years ago. 23 All right. You understand this case has been 24 about whether you have certain rights to cross ~ R.P,. REPORTING (617) 285-3369 ce 235 over the Mazzolas' property, right? You know what this case is about? A. Yes. And you've known that since you were sued, right, by the Mazzolas? A. Yes. Okay. In fact, you knew it even before that when you got a demand letter from us, didn't you? That I knew what? 10 Q. That there was an issue about what rights you had 1l to cross over their property. You knew then. Tt 12 was an issue. 13 It was an issue. 14 And yet the first time you bring up this 15 so-called judgment or whatever it is is today? 16 Because a+ 17 Q. A month before the trial. 18 Yes. Because I don't have any paperwork. Over 19 30 years ago. 20 All right. All right. You can close that up. I 21 don't want to belabor the point. 22 Is it true that you don't have a 23 document signed by Mr. Mazzola authorizing the 24 operation of any vehicle on his property? R.P. REPORTING (617) 285-3369