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MICHELLE J. BLAIR
Attorney at Law
Suite 214
365 Boston Post Road
Sudbury, MA 01776
(978) 443-3900
(978) 443-3966 (facsimile)
January 19, 2021
Gregory Wheeler, Esq.
15 Monument Square
Suite 225
Leominster, MA 01453
VIA UPS Priority Mail
RE: Burrows v. Cassidy
2085cev01315A
Dear Attorney Wheeler:
Under cover of this letter please find original and one copy of Defendant’s Opposition to
Plaintiffs Lorin P. Burrows, Motion to Compel the Sale of Real Estate.
Kindly file in accordance with Superior Court Rule 9A.COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF THE TRIAL COURT
SUPERIOR COURT
WORCESTER, ss 2085CV01315
)
LORIN P. BURROWS )
Plaintiff )
)
v. )
)
JANET L, CASSIDY )
Defendant )
ae
DEFENDANT’S, JANET L. CASSIDY, IN HER INDIVIDUAL CAPACITY,
OPPOSITION TO PLAINTIFF’S LORIN P. BURROWS, MOTION TO COMPEL THE
SALE OF REAL ESTATE
Introduction
The Plaintiff, Lorin P. Burrows, has filed a Motion to Compel without stating the legal
basis for his request. The Motion cites no rule, statute of case supporting a Motion to Compel
Real Estate. However, as the relief sought is an order to sell real estate, this is apparently a
request for a mandatory injunction pursuant to Rule 65 of the Massachusetts Rules of Civil
Procedure. As such, the Defendant submits this opposition to Plaintiff’'s Request for Injunctive
Relief. Plaintiff has not satisfied his burden under Rule 65 of the Massachusetts Rules of Civil
Procedure and as such, his Motion must be denied. Plaintiff does not seek to preserve the status
quo but seeks a mandatory injunction on a consolidated basis because he is seeking the relief that
he may be awarded at trial. There is no basis for this request for such extraordinary relief.
Finally, the Defendant seeks the right to file a Motion for Aitorney’s Fees as the Motion isfrivolous due to Plaintiff's failure to name a necessary party, the Trustee of the Norbeck Family
Irrevocable Trust.
Procedural Opposition
The Plaintiff seeks an Order compelling Janet L. Cassidy to sell certain real property
known and numbered as 109 S. Main Street, Millbury, MA 01527, Plaintiffs Complaint is
deficient in that it fails to name a necessary party, Janet L. Cassidy in her capacity as Trustee of
the Norbeck Family Irrevocable Trust. The Proposed Order compels Janet L. Cassidy, Trustee,
to convey the property, however, Janet L. Cassidy, Trustee, is not a party to this action. She has
not been named or served. As such, the Court lacks the authority to enter the Order.”
Statement of Facts
The Defendant, Janet I. Cassidy, is the Trustee of the Norbeck Family Irrevocable Trust,
however, she has not been named in this suit in that capacity. The beneficiaries of the Norbeck
Family Irrevocable Trust are Lorin P. Burrows and Janet L. Cassidy, or Lorin P Burrows, Janet
L. Cassidy, and the children of Janet L. Cassidy, The determination of the beneficiaries is a
matter that the Defendant has requested this Honorable Court adjudicate?
1 Third Affirmative Defense
The Defendant has alleged a cause of action against Janet L. Cassidy in her individual capacity despite seeking relicf
against her as Trustee of The Norbeck Family Irrevocable Trust and as such she reserves all rights pursuant to
M.GLL. c. 231 section 6F and Rule 11 of the Massachusetts Rules of Civil Procedure to seek attorneys’ fees and any
other relicf available under the statute or rule.
? First Affirmative Defense
‘The Plaintiff has failed to name an indispensable party, specifically, Janet L. Cassidy as Trustee of the Norbeck
Family Irrevocable Trust.
Second Affirmative Defense
‘The Plaintiff has failed to state a cause of action against Janet L. Cassidy in her individual capacity and as such, his
Complaint should be dismissed pursuant to Rule 12(c) of the Massachusetts Rules of Civil Procedure.
3 Fourth Affirmative Defense
The Defendant, Janet L. Cassidy, in her capacity as Trustee, has a fiduciary duty to all beneficiaries and there is a
question as to whether she and Mr, Lorin Burrows are the only beneficiaries of the trust, or, whether the three
2‘The party seeking a preliminary injunction must show "(1) a likelihood of success on the
merits; (2) that irreparable harm will result from denial of the injunction, and (3) that, in light of
the [moving party's] likelihood of success on the merits, the risk of irreparable harm to the
[moving party] outweighs the potential harm to the [nonmoving party] in granting the
injunction.” Loyal Order of Moose, Inc., Yarmouth Lodge # 2270 v. Board of Health of
Yarmouth, 439 Mass. 597, 601, 790 N.E.2d 203 (2003), quoting Tri-Nel Mgt., Inc. v. Board of
Health of Barnstable, 433 Mass. 217, 219, 741 N.E.2d 37 (2001). When analyzing the potential
tisk of irreparable harm, the court must balance the risk of harm to the moving party against any
similar risk of irreparable harm to the opposing party. Packaging Industries Group, Ine. v.
Cheney, 380 Mass, 609, 617 (1980). "What matters as to each party is not the raw amount of
irreparable harm the party might conceivably suffer, but rather the risk of such harm in light of
the party's chance of success on the merits. Only where the balance between these risks cuts in
favor of the moving party may a preliminary injunction properly issue." Jd. "A preliminary
injunction ordinarily is issued to preserve the status quo pending the outcome of litigation.5 See
Id, at 616, 405 N.E.2d 106; Petricca Constr. Co. v. Commonwealth, 37 Mass.App.Ct. 392, 399,
640 N.E.2d 780 (1994)." Doe I v. Superintendent of Sch. of Weston, 275 Ed. Law Rep. 381, 461
Mass, 159, 959 N.E.2d 403 (Mass. 2011).
Likelihood of Success
The Plaintiff is not likely to succeed on the merits. The language of the trust does not
entitle the beneficiary to a sale of the property. The language of the trust specifically allows for
distribution in kind.
In making any division or distribution hereunder after the death of the Donors, to
divide and distribute in kind or to sell the whole or part of the Trust property,
including real estate, and to divide and distribute the proceeds in cash or partly in
cash and partly in kind, and for purposes of division and distribution, its reasonable
judgment as to the value of Trust property shall be conclusive.
4The Trustee needs to make sure that a conveyance is accurate and names the correct beneficiary.
IJrreparable Harm
Assuming arguendo, the Plaintiff is able to satisfy this Honorable Court that he is likely
to succeed on the merits, first as to the identity of the beneficiaries, and second, that he is entitled
to a sale, and not a distribution in kind, he has not set forth in his papers any harm that he has
suffered that is irreparable. Monetary loss alone cannot constitute irreparable harm. See Caffvn
v. Caffyn, 70 Mass. App. Ct. 37, 42 (2007). See Commonwealth v. Mass. CRINC, 392. Mass. 79,
87 (1984)( The entry of the injunction was error as it was not based on irreparable barm) See also
Greenfield Country Estates Tenants Assn,, Inc. v. Deep, 423 Mass. 81, 88 (1996) (irreparable
harm justifying grant of preliminary injunction absent where money damages would adequately
redress harm suffered prior to final judgment).
Status Quo
A preliminary injunction ordinarily is issued to preserve the status quo pending the
outcome of litigation. Doe v. Superintendent of Schs. of Weston, 461 Mass. 159, 164 (2011).
Cumberland Farms v. Bd. of Health of Town of Barnstable (Mass. Super. 2019) see also
Long v, Lamontagne (Mass. 2011) The Plaintiff has not set forth any valid reason for disturbance
of the status quo, particularly, in a case where there is still an open question as to the identity of
the beneficiaries.
Conclusion
The Plaintiff, without correctly describing the relief sought, is seeking a mandatory
injunction to disturb the status quo and grant him the ultimate relief he seeks at trial against a
Trustee that is not a named defendant in this case. This is a frivolous action and attorney’s fees
should be awarded to the Defendant for having to expend trust resources to present an
opposition.For all of these reasons the Defendant requests that this Honorable Court deny Plaintiff's
Motion in its entirety and award reasonable attorney fees in the defense of this motion.
Respectfully submitted
The Defendant
By her attorney
Michelle J, Blair
BBO # 564078
Suite 214
365 Boston Post Road
Sudbury, MA. 01776
(978) 443-3900
(978) 443-3966 (facsimile)
mmichellejblair@verizon.net
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MICHELLE J. BLAIR Attorney at Law Suite 214 365 Boston Post Road Sudbury, MA 01776 (978) 443-3900 (978) 443-3966 (facsimile) January 19, 2021 Gregory Wheeler, Esq. 15 Monument Square Suite 225 Leominster, MA 01453 VIA UPS Priority Mail RE: Burrows v. Cassidy 2085cev01315A Dear Attorney Wheeler: Under cover of this letter please find original and one copy of Defendant’s Opposition to Plaintiffs Lorin P. Burrows, Motion to Compel the Sale of Real Estate. Kindly file in accordance with Superior Court Rule 9A.COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF THE TRIAL COURT SUPERIOR COURT WORCESTER, ss 2085CV01315 ) LORIN P. BURROWS ) Plaintiff ) ) v. ) ) JANET L, CASSIDY ) Defendant ) ae DEFENDANT’S, JANET L. CASSIDY, IN HER INDIVIDUAL CAPACITY, OPPOSITION TO PLAINTIFF’S LORIN P. BURROWS, MOTION TO COMPEL THE SALE OF REAL ESTATE Introduction The Plaintiff, Lorin P. Burrows, has filed a Motion to Compel without stating the legal basis for his request. The Motion cites no rule, statute of case supporting a Motion to Compel Real Estate. However, as the relief sought is an order to sell real estate, this is apparently a request for a mandatory injunction pursuant to Rule 65 of the Massachusetts Rules of Civil Procedure. As such, the Defendant submits this opposition to Plaintiff’'s Request for Injunctive Relief. Plaintiff has not satisfied his burden under Rule 65 of the Massachusetts Rules of Civil Procedure and as such, his Motion must be denied. Plaintiff does not seek to preserve the status quo but seeks a mandatory injunction on a consolidated basis because he is seeking the relief that he may be awarded at trial. There is no basis for this request for such extraordinary relief. Finally, the Defendant seeks the right to file a Motion for Aitorney’s Fees as the Motion isfrivolous due to Plaintiff's failure to name a necessary party, the Trustee of the Norbeck Family Irrevocable Trust. Procedural Opposition The Plaintiff seeks an Order compelling Janet L. Cassidy to sell certain real property known and numbered as 109 S. Main Street, Millbury, MA 01527, Plaintiffs Complaint is deficient in that it fails to name a necessary party, Janet L. Cassidy in her capacity as Trustee of the Norbeck Family Irrevocable Trust. The Proposed Order compels Janet L. Cassidy, Trustee, to convey the property, however, Janet L. Cassidy, Trustee, is not a party to this action. She has not been named or served. As such, the Court lacks the authority to enter the Order.” Statement of Facts The Defendant, Janet I. Cassidy, is the Trustee of the Norbeck Family Irrevocable Trust, however, she has not been named in this suit in that capacity. The beneficiaries of the Norbeck Family Irrevocable Trust are Lorin P. Burrows and Janet L. Cassidy, or Lorin P Burrows, Janet L. Cassidy, and the children of Janet L. Cassidy, The determination of the beneficiaries is a matter that the Defendant has requested this Honorable Court adjudicate? 1 Third Affirmative Defense The Defendant has alleged a cause of action against Janet L. Cassidy in her individual capacity despite seeking relicf against her as Trustee of The Norbeck Family Irrevocable Trust and as such she reserves all rights pursuant to M.GLL. c. 231 section 6F and Rule 11 of the Massachusetts Rules of Civil Procedure to seek attorneys’ fees and any other relicf available under the statute or rule. ? First Affirmative Defense ‘The Plaintiff has failed to name an indispensable party, specifically, Janet L. Cassidy as Trustee of the Norbeck Family Irrevocable Trust. Second Affirmative Defense ‘The Plaintiff has failed to state a cause of action against Janet L. Cassidy in her individual capacity and as such, his Complaint should be dismissed pursuant to Rule 12(c) of the Massachusetts Rules of Civil Procedure. 3 Fourth Affirmative Defense The Defendant, Janet L. Cassidy, in her capacity as Trustee, has a fiduciary duty to all beneficiaries and there is a question as to whether she and Mr, Lorin Burrows are the only beneficiaries of the trust, or, whether the three 2‘The party seeking a preliminary injunction must show "(1) a likelihood of success on the merits; (2) that irreparable harm will result from denial of the injunction, and (3) that, in light of the [moving party's] likelihood of success on the merits, the risk of irreparable harm to the [moving party] outweighs the potential harm to the [nonmoving party] in granting the injunction.” Loyal Order of Moose, Inc., Yarmouth Lodge # 2270 v. Board of Health of Yarmouth, 439 Mass. 597, 601, 790 N.E.2d 203 (2003), quoting Tri-Nel Mgt., Inc. v. Board of Health of Barnstable, 433 Mass. 217, 219, 741 N.E.2d 37 (2001). When analyzing the potential tisk of irreparable harm, the court must balance the risk of harm to the moving party against any similar risk of irreparable harm to the opposing party. Packaging Industries Group, Ine. v. Cheney, 380 Mass, 609, 617 (1980). "What matters as to each party is not the raw amount of irreparable harm the party might conceivably suffer, but rather the risk of such harm in light of the party's chance of success on the merits. Only where the balance between these risks cuts in favor of the moving party may a preliminary injunction properly issue." Jd. "A preliminary injunction ordinarily is issued to preserve the status quo pending the outcome of litigation.5 See Id, at 616, 405 N.E.2d 106; Petricca Constr. Co. v. Commonwealth, 37 Mass.App.Ct. 392, 399, 640 N.E.2d 780 (1994)." Doe I v. Superintendent of Sch. of Weston, 275 Ed. Law Rep. 381, 461 Mass, 159, 959 N.E.2d 403 (Mass. 2011). Likelihood of Success The Plaintiff is not likely to succeed on the merits. The language of the trust does not entitle the beneficiary to a sale of the property. The language of the trust specifically allows for distribution in kind. In making any division or distribution hereunder after the death of the Donors, to divide and distribute in kind or to sell the whole or part of the Trust property, including real estate, and to divide and distribute the proceeds in cash or partly in cash and partly in kind, and for purposes of division and distribution, its reasonable judgment as to the value of Trust property shall be conclusive. 4The Trustee needs to make sure that a conveyance is accurate and names the correct beneficiary. IJrreparable Harm Assuming arguendo, the Plaintiff is able to satisfy this Honorable Court that he is likely to succeed on the merits, first as to the identity of the beneficiaries, and second, that he is entitled to a sale, and not a distribution in kind, he has not set forth in his papers any harm that he has suffered that is irreparable. Monetary loss alone cannot constitute irreparable harm. See Caffvn v. Caffyn, 70 Mass. App. Ct. 37, 42 (2007). See Commonwealth v. Mass. CRINC, 392. Mass. 79, 87 (1984)( The entry of the injunction was error as it was not based on irreparable barm) See also Greenfield Country Estates Tenants Assn,, Inc. v. Deep, 423 Mass. 81, 88 (1996) (irreparable harm justifying grant of preliminary injunction absent where money damages would adequately redress harm suffered prior to final judgment). Status Quo A preliminary injunction ordinarily is issued to preserve the status quo pending the outcome of litigation. Doe v. Superintendent of Schs. of Weston, 461 Mass. 159, 164 (2011). Cumberland Farms v. Bd. of Health of Town of Barnstable (Mass. Super. 2019) see also Long v, Lamontagne (Mass. 2011) The Plaintiff has not set forth any valid reason for disturbance of the status quo, particularly, in a case where there is still an open question as to the identity of the beneficiaries. Conclusion The Plaintiff, without correctly describing the relief sought, is seeking a mandatory injunction to disturb the status quo and grant him the ultimate relief he seeks at trial against a Trustee that is not a named defendant in this case. This is a frivolous action and attorney’s fees should be awarded to the Defendant for having to expend trust resources to present an opposition.For all of these reasons the Defendant requests that this Honorable Court deny Plaintiff's Motion in its entirety and award reasonable attorney fees in the defense of this motion. Respectfully submitted The Defendant By her attorney Michelle J, Blair BBO # 564078 Suite 214 365 Boston Post Road Sudbury, MA. 01776 (978) 443-3900 (978) 443-3966 (facsimile) mmichellejblair@verizon.net