On October 17, 2016 a
Defendants John F O'Brien, Bonita J O'Brien files proposed Findings of Fact Applies To: O'Brien, John F (Defendant); O'Brien, Bonita J (Defendant)
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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63
COMMONWEALTH OF MASSACHUSETTS
ESSEX, ss SUPERIOR COURT DEPARTMENT
OF THE TRIAL COURT
CIVIL ACTION NO. 1677CV1587A
PHILIP J. MAZZOLA, as
TRUSTEE OF THE SEVENTEEN oy
WINGAERSHEEK REALTY TRUST o
oy
er
Plaintiff, ws
Vv.
U
JOHN F. O’BRIEN and ho
BONITA J. O’BRIEN
Defendants.
DEFENDANTS’ PROPOSED FINDINGS OF FACT
The easement at the center of this dispute is 15 fect wide. Exhibit 2.
The Plaintiff knew about the easement when he purchased 17 Wingaersheek Road.
Plaintiff's testimony at 11:58:54.
When the Plaintiff removed the cottage on the property and built a built a new house, the
new house was much closer to the easement. Nigro at 9:23:22.
Between 2014 and 2016, neighbors Michael Carpenter and Vicky Mullen drove ATVs
over the sandy path in the middle of the easement. Mr. Carpenter drove over the
easement regularly and recklessly. Roberta Mazzola at 10:05:06 and 10:08:35; Plaintiff
@t10:26:15, 11:59:24, 12:01:06.
Ms. Mullen’s son installed wooden pallets on the pathway. The Mazzolas knew about the
pallets but did not make Ms. Mullen or her son remove them. The pallets are still
underneath the sand. Roberta Mazzola at 10:09:39.
In May 2016, without giving notice to the easement holders, the Plaintiff installed two
cement pillars at the entrance to the sandy portion of the easement. Plaintiff at 10:29:37.
Defendant John O’Brien removed the pillars. Plaintiff at 10:30:42 and 10:41:45.
8 This lawsuit was filed because the pillars were removed, not because the O’Briens were
overusing the easement. Plaintiff'at 10:41:22 and Bonita O ’Brien at 11:09:27.
The Plaintiff did not seek an injunction against the O’Briens to prevent ATV use when he
filed this lawsuit. Plaintiff at 11:51:11.
10. At the time the pillars were installed, Mr. Carpenter and Ms. Mullen had agreed to stop
driving over the easement and the O’Briens did not own an ATV. John O'Brien Jr. at
12:16:00.
11. John O’Brien Jr. purchased an ATV in April 2017. Exhibits 67 and 68.
12. Mr. O’Brien is a guest and invitee of his parents and therefore has the right to use the
easement under the terms of their deed. Exhibit 13.
13. Mr. O’Brien usually drove over the path a few times during the week and two or three
roundtrips on a weekend day in the summer. Plaintiffat 10:38:52, 10:39:41, 11:52:33;
Paul Bruno at 2:15:56; Roberta Mazzola at 9:35:36.
14 Mr. O’Brien drove slowly. Plaintiff at 12:20:57; Paul Bruno at 2:37:28; video exhibits.
15, Mr. O’Brien often sent a family member up the path to see whether any pedestrians were
ahead. John O'Brien Jr. at 12:36:21.
16 There was enough room on the easement for both Mr. O’Brien’s ATV and pedestrians.
Video IMG_0146.
17. Mr. O’Brien generally drove to the beach around 9 or 10 in the morning and would leave
anywhere between 3 p.m. and dusk. John O’Brien Jr. at 12:18:24.
18 Mr. O’Brien generally transported beach equipment, passengers, and a Jet Ski. He did not
drive the ATV recreationally. Paul Bruno at 2:38:31.
19. The Defendants’ daughter, Wendy Ercolani, occasionally borrowed her brother’s ATV.
She drove it slowly and safely. Plaintiff at 12:17:24 and 12:20:32.
20. It usually took “a couple of minutes” for Mr. O’Brien to drive from Wingaersheek Road
to the entrance of the sandy part of the path. Plaintiff at 11:57:05; John O’Brien Jr. at
12:10:18,
21 The Plaintiff installed security cameras at the same time that he installed the pillars, in
the spring of 2016. Roberta Mazzola at 10:16:53.
‘
22 The videos have operated continuously since they were installed, with only minor
interruptions. Roberta Mazzola at 10:16:53.
23 The Plaintiff's spouse admitted there should be numerous videos from the security
camera showing John O’Brien Jr.’s ATV use on Labor Day 2017. Roberta Mazzola at
10:19:16. No videos have been offered showing any member of the O’Brien family
driving over the path on Labor Day 2017.
24. The Plaintiff and his spouse were not present at 17 Wingaersheek Road on Labor Day
2017. Plaintiff at 11:03:37.
25, The Plaintiff did not use the path at all in 2017. Plaintiff at 11:30:10.
26 Two neighbors own motorized beach carts that leave track marks in the sandy part of the
path. Exhibit 57A; Exhibit 70; Plaintiff at 12:27:58.
27. More than 150 pedestrians use the path on an average weekend day in the summer.
Roberta Mazzola at 10:21:59.
28. No evidence has been offered directly tying John’s ATV use to environmental damage.
Roberta Mazzola at 10:22:48.
29. No evidence has been presented showing harm to the Plaintiffs property values as a
result of the O’Briens’ ATV use. Roberta Mazzola at 10:11:35.
30. Neither the Defendants nor their children “used motor vehicles and all-terrain motor
vehicles, at all hours of the day and night, over the Easement to access Coffin’s Beach,”
as the Complaint alleges. Plaintiff at 12:05:57; Donna Bruno at 2:45:39; Roberta
Mazzola at 10:15:55.
31. Neither the Defendants nor their children “used said vehicles in an inherently dangerous 1
manner,” as the Complaint alleges. Donna Bruno at 2:46:35 and 2:46:53.
32. In his affidavit, Paul Bruno did not mention any issue with noise, Exhibit 72.
33. Prior to filing this lawsuit, the Plaintiff never complained to the O’Briens that they were
interfering with his use and enjoyment of his property. Bonita O’Brien at 11:10:54; John
O'Brien at 12:28:37.
34. The Plaintiff admits that when the O’Briens were the only people driving over the path,
they did not damage the path. Plaintiffat 12:00:23 and 12:24:05.
35. Mr. O’Brien’s ATV use accounts for, at most, approximately 15 minutes of sound spread
over an entire day.
.
36. Neither the Plaintiff nor his spouse has alleged or proven any substantial or unreasonable
harm caused by the O’Briens’ ATV use. Plaintiff at 11:22:35; Exhibit 69; Roberta
Mazzola at 9:58:04.
Respectfully submitted,
THE DEFENDANTS
John F. O’Brien and
Bonita J. O’Brien
By Lae ‘ Aus ‘
Meredith Fine, Esq.
BBO No. 669248
46 Middle Street Suite 2
Gloucester, MA 01930
978-515-7224
meredith@attorneymeredithfine.com
Dated: February 18, 2020
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Document Filed Date
February 18, 2020
Case Filing Date
October 17, 2016
Category
Equitable Remedies
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63 COMMONWEALTH OF MASSACHUSETTS ESSEX, ss SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT CIVIL ACTION NO. 1677CV1587A PHILIP J. MAZZOLA, as TRUSTEE OF THE SEVENTEEN oy WINGAERSHEEK REALTY TRUST o oy er Plaintiff, ws Vv. U JOHN F. O’BRIEN and ho BONITA J. O’BRIEN Defendants. DEFENDANTS’ PROPOSED FINDINGS OF FACT The easement at the center of this dispute is 15 fect wide. Exhibit 2. The Plaintiff knew about the easement when he purchased 17 Wingaersheek Road. Plaintiff's testimony at 11:58:54. When the Plaintiff removed the cottage on the property and built a built a new house, the new house was much closer to the easement. Nigro at 9:23:22. Between 2014 and 2016, neighbors Michael Carpenter and Vicky Mullen drove ATVs over the sandy path in the middle of the easement. Mr. Carpenter drove over the easement regularly and recklessly. Roberta Mazzola at 10:05:06 and 10:08:35; Plaintiff @t10:26:15, 11:59:24, 12:01:06. Ms. Mullen’s son installed wooden pallets on the pathway. The Mazzolas knew about the pallets but did not make Ms. Mullen or her son remove them. The pallets are still underneath the sand. Roberta Mazzola at 10:09:39. In May 2016, without giving notice to the easement holders, the Plaintiff installed two cement pillars at the entrance to the sandy portion of the easement. Plaintiff at 10:29:37. Defendant John O’Brien removed the pillars. Plaintiff at 10:30:42 and 10:41:45. 8 This lawsuit was filed because the pillars were removed, not because the O’Briens were overusing the easement. Plaintiff'at 10:41:22 and Bonita O ’Brien at 11:09:27. The Plaintiff did not seek an injunction against the O’Briens to prevent ATV use when he filed this lawsuit. Plaintiff at 11:51:11. 10. At the time the pillars were installed, Mr. Carpenter and Ms. Mullen had agreed to stop driving over the easement and the O’Briens did not own an ATV. John O'Brien Jr. at 12:16:00. 11. John O’Brien Jr. purchased an ATV in April 2017. Exhibits 67 and 68. 12. Mr. O’Brien is a guest and invitee of his parents and therefore has the right to use the easement under the terms of their deed. Exhibit 13. 13. Mr. O’Brien usually drove over the path a few times during the week and two or three roundtrips on a weekend day in the summer. Plaintiffat 10:38:52, 10:39:41, 11:52:33; Paul Bruno at 2:15:56; Roberta Mazzola at 9:35:36. 14 Mr. O’Brien drove slowly. Plaintiff at 12:20:57; Paul Bruno at 2:37:28; video exhibits. 15, Mr. O’Brien often sent a family member up the path to see whether any pedestrians were ahead. John O'Brien Jr. at 12:36:21. 16 There was enough room on the easement for both Mr. O’Brien’s ATV and pedestrians. Video IMG_0146. 17. Mr. O’Brien generally drove to the beach around 9 or 10 in the morning and would leave anywhere between 3 p.m. and dusk. John O’Brien Jr. at 12:18:24. 18 Mr. O’Brien generally transported beach equipment, passengers, and a Jet Ski. He did not drive the ATV recreationally. Paul Bruno at 2:38:31. 19. The Defendants’ daughter, Wendy Ercolani, occasionally borrowed her brother’s ATV. She drove it slowly and safely. Plaintiff at 12:17:24 and 12:20:32. 20. It usually took “a couple of minutes” for Mr. O’Brien to drive from Wingaersheek Road to the entrance of the sandy part of the path. Plaintiff at 11:57:05; John O’Brien Jr. at 12:10:18, 21 The Plaintiff installed security cameras at the same time that he installed the pillars, in the spring of 2016. Roberta Mazzola at 10:16:53. ‘ 22 The videos have operated continuously since they were installed, with only minor interruptions. Roberta Mazzola at 10:16:53. 23 The Plaintiff's spouse admitted there should be numerous videos from the security camera showing John O’Brien Jr.’s ATV use on Labor Day 2017. Roberta Mazzola at 10:19:16. No videos have been offered showing any member of the O’Brien family driving over the path on Labor Day 2017. 24. The Plaintiff and his spouse were not present at 17 Wingaersheek Road on Labor Day 2017. Plaintiff at 11:03:37. 25, The Plaintiff did not use the path at all in 2017. Plaintiff at 11:30:10. 26 Two neighbors own motorized beach carts that leave track marks in the sandy part of the path. Exhibit 57A; Exhibit 70; Plaintiff at 12:27:58. 27. More than 150 pedestrians use the path on an average weekend day in the summer. Roberta Mazzola at 10:21:59. 28. No evidence has been offered directly tying John’s ATV use to environmental damage. Roberta Mazzola at 10:22:48. 29. No evidence has been presented showing harm to the Plaintiffs property values as a result of the O’Briens’ ATV use. Roberta Mazzola at 10:11:35. 30. Neither the Defendants nor their children “used motor vehicles and all-terrain motor vehicles, at all hours of the day and night, over the Easement to access Coffin’s Beach,” as the Complaint alleges. Plaintiff at 12:05:57; Donna Bruno at 2:45:39; Roberta Mazzola at 10:15:55. 31. Neither the Defendants nor their children “used said vehicles in an inherently dangerous 1 manner,” as the Complaint alleges. Donna Bruno at 2:46:35 and 2:46:53. 32. In his affidavit, Paul Bruno did not mention any issue with noise, Exhibit 72. 33. Prior to filing this lawsuit, the Plaintiff never complained to the O’Briens that they were interfering with his use and enjoyment of his property. Bonita O’Brien at 11:10:54; John O'Brien at 12:28:37. 34. The Plaintiff admits that when the O’Briens were the only people driving over the path, they did not damage the path. Plaintiffat 12:00:23 and 12:24:05. 35. Mr. O’Brien’s ATV use accounts for, at most, approximately 15 minutes of sound spread over an entire day. . 36. Neither the Plaintiff nor his spouse has alleged or proven any substantial or unreasonable harm caused by the O’Briens’ ATV use. Plaintiff at 11:22:35; Exhibit 69; Roberta Mazzola at 9:58:04. Respectfully submitted, THE DEFENDANTS John F. O’Brien and Bonita J. O’Brien By Lae ‘ Aus ‘ Meredith Fine, Esq. BBO No. 669248 46 Middle Street Suite 2 Gloucester, MA 01930 978-515-7224 meredith@attorneymeredithfine.com Dated: February 18, 2020 Imo my uw a3 ery =~ oo oe ~~ Ww