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COMMONWEALTH OF MASSACHUSETTS
BRISTOL COUNTY, SS: SUPERIOR COURT DEPARTMENT
OF THE TRIAL COURT
_CIVIL ACTION NO. 1773CV01030
CAROLYN O’REAGAN AND MICHAEL
O’REAGAN,
Plaintiffs, BRISTOL. SS SUPERIOR COURT
v. FILED
JEFFREY J. ROBERTS, RACHEL P. ROBERTS, APR 2.2 2021
JOSEPH PONTE, D/B/A PONTE & ASSOCIATES,
TARA SCHRYVER, AND DUMONT HOME
INSPECTION SERVICES, INC, weLeRiChnaieenese
Defendants.
PLAINTIFFS’ OPPOSITION TO MOTION FOR POST JUDGMENT AWARD OF
REASONABLE ATTORNEY’S FEES AND EXPENSES
Defendants Jeffrey J. Roberts and Rachel P. Roberts ("Roberts") have moved this Court
for an order assessing the Plaintiffs in the above matter their costs and attorney fees allegedly
expended defending themselves in this civil action. The Motion itself is not based on fact or law
and it is frivolous, meritless and ought to be denied without a hearing, based solely on the
tecord.
Of course, if this Court is inclined to consider the Motion in more depth, then Plaintiffs .
respectfully request a hearing and particular findings under the Massachusetts Rules of Civil
Procedure and jurisprudence.
At the outset, the Plaintiffs submit that it is rare and extraordinary in most civil actions of
this type to grant the relief Defendants seek. It would be even more extraordinary in this particular
case to do so given the prior rulings of this Court regarding the Movant’s prior attempts to exitthis case. Moreover, the single case the Defendants rely on-in'their Motion fails to support in any
manner relief based on the facts in this case and the facts they allege support their cited precedent.
SALIENT FACT
Briefly and tersely, the Plaintiffs purchased their first home through a valuable VA loan
from the movants, using the services of real estate agents and home inspectors referred to them
who remain defendants in this action. At the time, Plaintiff Michael O'Reagan, a Veteran and
Fall River firefighter, was dealing with a dramatic decline of his Father and had serious medical
issues which was later diagnosed as cancer for which he underwent treatment at Dana Farber. A
short time after moving into the house, and via later inspections by more experiericed inspectors,
serious structural and material defects of the home were discovered, none of which had been
disclosed prior to the sale by the Roberts. The Plaintiffs brought suit to recover damages against
the Roberts, who are the-prior homeowners, their real estate agents and home inspectors.
The Roberts herein thereafter sought to have the complaint dismissed pursuant to Civil
Rule 12(b). In an August 28, 2018 Order the Court denied in part and allowed in part the motion,
‘adding, however that "the court's decision on this matter is stayed for a period of thirty days
during which time plaintiffs are granted thirty (30) days leave to amend their complaint."
Plaintiffs, in good faith, moved to amend the complaint and filed an amended complaint
which pled more particular facts against the Movants. The Amended Complaint was additionally
challenged however, this Court denied Defendants’ challerige. Subsequently, after discovery, all
Defendants moved in unison for summary judgment. After extensive oral argument, this Court
denied summary judgment as to other Defendants, but allowed summary judgement for the
Roberts. In its Order of January 7, 2021, this Court generally noted that the house in questionhad many serious problems before the sale that were not in fact disclosed to the Plaintiffs,
however, this Court found issues sufficient to the court to support its ruling for the movant as
follows.
, First, the Court held that the breach of contract claim was‘lacking in support because the
P&S contractual agreement did not "impose any obligation of the [Movants] to disclose defects
in the Property", although in good faith the Plaintiffs alleged they had been fraudulently induced
into signing the P&S, based on Plaintiff Michael O'Reagan's conditions and other facts, but, in
the Court's opinion, had not met their burden of producing sufficient evidence to support the
claim,
Second, as to the fraud count, the Court held that the Plaintiffs could not prove that there
was a misrepresentation relative to the home's septic tank because they had evidence that the
septic tank had previously passed inspection. The Court also found that the Plaintiffs had not
offered sufficient evidence to link the Movants to one of the remaining Defendant's
misrepresentations, since, although each party's agent was part of the same real estate office, the
Plaintiff's agent was purportedly acting in the Plaintiff's best interest, a judgment as to the
quality of the evidence.
ARUGMENT
In order to grant costs and attorney fees in a civil action against a party, under M.G.L 231
§ 6F a court must find three elements exist to warrant the sanction: the civil action was "wholly
insubstantial”, (2) "frivolous" and (3) "not advanced in good faith." Pursuant to 6F a court must
make "separate and distinct finding{s]" "after a hearing" on the matter, It appears, of course,
that if a court is not going to sanction a party, then no hearing is required.Tt is unclear how the Commonwealth's courts exactly interpret the terms used in the.cited
statute, The Merriam-Webster Dictionary defines the term insubstantial as "lacking substance or
material nature; lacking firmness or solidity, flimsy"; frivolous as "of little weight or importance;
having no sound basis"; and good faith as "honesty or lawfulness of purpose". Plaintiffs submit,
indubitably, it is incumbent on a court to find all three elements as defined above in order to
warrant sanctioning a party and ordering they pay an opposing party's costs and attomey fees.
. With these criteria in mind, and the facts and findings thus far adduced in this case,
Plaintiffs contend that their cause of action and claims against the Roberts were in fact
’ “substantial” and submitted in “good faith” and that no relief is warranted.
First, it should be dispositive on this issue that the Movants have already been denied on
earlier sought relief where Roberts likewise challenged the substance of Plaintiffs claims against
them and lost. The Movants, after losing their quest to have the case initially dismissed, could
have filed for summary judgment at any earlier time should they or their counsel believed that
Plaintiffs amended claims were insubstantial or not advanced in good faith. The fact that
Movants chose to not to file earlier; and instead occur the expenses of discovery and litigation,
was their choice. The focus on the instant motion is the claim made in the Complaint and as
amended and not the weight of the evidence through discovery, If it were the latter, it would also
follow that the discovery process and litigation was justified for the Movants to reach the point
that they believed that they achieved a chance to be successful at summary judgment.
If the case against the Roberts was brought forward to trial before a jury, it is certainly
debatable whether or not a jury would conclude that they practiced sotne fraud and deceit in the
sale of their home. The valid question exists in the mind of reasonable persons that it would be
unfathomable that the homeowners did not know about serious problems with their home and
that it was illegal to make structural changes without permits, and that in this particular case theymay have in fact hid those problems.from the Plaintiffs in order to facilitate the sale of such a
problem property. Plaintifis assert that when all the facts come out after trial, it more than likely
will be seen that the Roberts have so far escaped liability.
Second, in ruling on motions based on the pleadings and discovery, the Court has
determined that there are genuine issues relating to the serious problems subsequently
discovered with the house in question and whether such problems were known by the defendants
and kept hidden from the Plaintiffs, or whether the Defendants failed to perform the duties they
owed to the Plaintiffs. Put another way, the house the Plaintiffs bought was a lemon; this fact
appears to have been kept from the Plaintiffs and they were misled to believe the house was in
fairly good condition by the Defendants, and a reasonable person would believe that the Roberts
may have had a part in the deception. It is not unreasonable for a person who is buying a house
from an owner to believe in good faith, once serious defects are found in the house, that the
owner themselves were aware of the defects and failed to inform the buyers so that they could
unload the house on an unwitting buyer.
More importantly, in order to receive the relief that the Roberts seek, they have to prove
to this Court that the Plaintiffs’ action in filing this suit was "insubstantial," "frivolous" and not
done in "good faith." As stated above, Plaintiffs had good reason to believe the Movants had to
know about the serious defects in the home they lived in but failed to relay such defects to the
Plaintifis prior to selling them the home. In Plaintiffs’ stated view, it appeared at all stages that
the Defendants acted together.
Plaintiffs respectfully submit that they had the right to seek relief against the Roberts and
had a reasonable and good faith belief that they were that they would have been successftl in
doing so given the atrocious state of the home and defects discovered that were obscured fromPlaintiffs as well as the apparent actions in unison with Defendants who have not survived the
summary judgment process. This Court ruled in favor of Plaintiffs when similar challenges were
raised by movants earlier in this action. and movants chose the timing of their summary judgment
motion knowing they would incur costs in doing so. It is incomprehensible-to see how movant
can now claim that Plaintiffs claims were insubstantial, frivolous and advanced:in bad faith. It
remains likewise incomprehensible that the Roberts were not aware of the defects in the ome
they lived in and certainly were aware that no permits were pulled by them during their time of
ownership for repairs that were made by or om their behalf. To grant the Roberts’ Motion, this
. Court has to make specific findings that the suit was insubstantial, frivolous and not brought in
good faith. That is an extremely high hurdle the Roberts have to leap pursuant to the facts of this
case. Plaintiffs submit that the Roberts have failed to meet that burden.
CONCLUSION
The Motion lacks merit and ought to be denied without further proceedings.
Respectfully submitted,
Plaintiffs, -
By their attorney,
DATED: April 19, 2021 : J, f {| Pp
: acted [Le Jn, am
BBO#; 651251
Chambers Law Office
220 Broadway, Suite 404
Lynnfield, MA-01940
Office: (781) 581-2031
Cell: (781) 363-1773
Fax: (781) 581-8449
Email; Richard@chamberslawoffice.comCERTIFICATE OF SERVICE
I, Richard C. Chambers, Jr., Esq., hereby certify that on this 19" day of April, 2021, served a
true and accurate copy of the foregoing document to counsel of record by via electronic mail and
U.S. First Class Mail as follows:
Patrick T. Matthews, Esq.
Coastal Legal Affiliates, P.C. _
P.O, Box 1870
Fall River, MA 02722
Se
Richard C. Chambars, Jr, Esq.Chambers Law Office
Tel: (781) 581-2031
Richard C. ‘Chambers, Jr. Fax: (781) 581-8449.
Joseph Spinale
Matthew Littleton * 220 Broadway, Suite 404
. : + Lynnfield, MA.01940
Paralegal * :
www.ChambersLaw(fice.com
April 19, 2021
SENT VIA U.S. FIRST CLASS MAIL
AND._E-MAIL. PIMATTHEWS@FALLRIVERATTORNEYS.COM
Patrick T. Matthews, Esq.
Coastal Legal Affiliates, P.C.
P.O. Box 1870
Fall River, MA 02722
Re: Carolyn O’Reagan et al v. Jeffrey J, Roberts et al
Civil Action No.: 1773CV¥01030
Dear Attorney Matthews,
Pursuant to Superior Court Rule 9A, please find enclosed'an original, and copy, of Plaintiffs’
Opposition to Motion for Post Judgment Award of Reasonable Attorney's Fees and Expenses.
Should you have any questions or concemis, please do not hesitate to contact me.
Yours truly;
Richard C. (Cate
Enclosures
Preview
ap.\ COMMONWEALTH OF MASSACHUSETTS BRISTOL COUNTY, SS: SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT _CIVIL ACTION NO. 1773CV01030 CAROLYN O’REAGAN AND MICHAEL O’REAGAN, Plaintiffs, BRISTOL. SS SUPERIOR COURT v. FILED JEFFREY J. ROBERTS, RACHEL P. ROBERTS, APR 2.2 2021 JOSEPH PONTE, D/B/A PONTE & ASSOCIATES, TARA SCHRYVER, AND DUMONT HOME INSPECTION SERVICES, INC, weLeRiChnaieenese Defendants. PLAINTIFFS’ OPPOSITION TO MOTION FOR POST JUDGMENT AWARD OF REASONABLE ATTORNEY’S FEES AND EXPENSES Defendants Jeffrey J. Roberts and Rachel P. Roberts ("Roberts") have moved this Court for an order assessing the Plaintiffs in the above matter their costs and attorney fees allegedly expended defending themselves in this civil action. The Motion itself is not based on fact or law and it is frivolous, meritless and ought to be denied without a hearing, based solely on the tecord. Of course, if this Court is inclined to consider the Motion in more depth, then Plaintiffs . respectfully request a hearing and particular findings under the Massachusetts Rules of Civil Procedure and jurisprudence. At the outset, the Plaintiffs submit that it is rare and extraordinary in most civil actions of this type to grant the relief Defendants seek. It would be even more extraordinary in this particular case to do so given the prior rulings of this Court regarding the Movant’s prior attempts to exitthis case. Moreover, the single case the Defendants rely on-in'their Motion fails to support in any manner relief based on the facts in this case and the facts they allege support their cited precedent. SALIENT FACT Briefly and tersely, the Plaintiffs purchased their first home through a valuable VA loan from the movants, using the services of real estate agents and home inspectors referred to them who remain defendants in this action. At the time, Plaintiff Michael O'Reagan, a Veteran and Fall River firefighter, was dealing with a dramatic decline of his Father and had serious medical issues which was later diagnosed as cancer for which he underwent treatment at Dana Farber. A short time after moving into the house, and via later inspections by more experiericed inspectors, serious structural and material defects of the home were discovered, none of which had been disclosed prior to the sale by the Roberts. The Plaintiffs brought suit to recover damages against the Roberts, who are the-prior homeowners, their real estate agents and home inspectors. The Roberts herein thereafter sought to have the complaint dismissed pursuant to Civil Rule 12(b). In an August 28, 2018 Order the Court denied in part and allowed in part the motion, ‘adding, however that "the court's decision on this matter is stayed for a period of thirty days during which time plaintiffs are granted thirty (30) days leave to amend their complaint." Plaintiffs, in good faith, moved to amend the complaint and filed an amended complaint which pled more particular facts against the Movants. The Amended Complaint was additionally challenged however, this Court denied Defendants’ challerige. Subsequently, after discovery, all Defendants moved in unison for summary judgment. After extensive oral argument, this Court denied summary judgment as to other Defendants, but allowed summary judgement for the Roberts. In its Order of January 7, 2021, this Court generally noted that the house in questionhad many serious problems before the sale that were not in fact disclosed to the Plaintiffs, however, this Court found issues sufficient to the court to support its ruling for the movant as follows. , First, the Court held that the breach of contract claim was‘lacking in support because the P&S contractual agreement did not "impose any obligation of the [Movants] to disclose defects in the Property", although in good faith the Plaintiffs alleged they had been fraudulently induced into signing the P&S, based on Plaintiff Michael O'Reagan's conditions and other facts, but, in the Court's opinion, had not met their burden of producing sufficient evidence to support the claim, Second, as to the fraud count, the Court held that the Plaintiffs could not prove that there was a misrepresentation relative to the home's septic tank because they had evidence that the septic tank had previously passed inspection. The Court also found that the Plaintiffs had not offered sufficient evidence to link the Movants to one of the remaining Defendant's misrepresentations, since, although each party's agent was part of the same real estate office, the Plaintiff's agent was purportedly acting in the Plaintiff's best interest, a judgment as to the quality of the evidence. ARUGMENT In order to grant costs and attorney fees in a civil action against a party, under M.G.L 231 § 6F a court must find three elements exist to warrant the sanction: the civil action was "wholly insubstantial”, (2) "frivolous" and (3) "not advanced in good faith." Pursuant to 6F a court must make "separate and distinct finding{s]" "after a hearing" on the matter, It appears, of course, that if a court is not going to sanction a party, then no hearing is required.Tt is unclear how the Commonwealth's courts exactly interpret the terms used in the.cited statute, The Merriam-Webster Dictionary defines the term insubstantial as "lacking substance or material nature; lacking firmness or solidity, flimsy"; frivolous as "of little weight or importance; having no sound basis"; and good faith as "honesty or lawfulness of purpose". Plaintiffs submit, indubitably, it is incumbent on a court to find all three elements as defined above in order to warrant sanctioning a party and ordering they pay an opposing party's costs and attomey fees. . With these criteria in mind, and the facts and findings thus far adduced in this case, Plaintiffs contend that their cause of action and claims against the Roberts were in fact ’ “substantial” and submitted in “good faith” and that no relief is warranted. First, it should be dispositive on this issue that the Movants have already been denied on earlier sought relief where Roberts likewise challenged the substance of Plaintiffs claims against them and lost. The Movants, after losing their quest to have the case initially dismissed, could have filed for summary judgment at any earlier time should they or their counsel believed that Plaintiffs amended claims were insubstantial or not advanced in good faith. The fact that Movants chose to not to file earlier; and instead occur the expenses of discovery and litigation, was their choice. The focus on the instant motion is the claim made in the Complaint and as amended and not the weight of the evidence through discovery, If it were the latter, it would also follow that the discovery process and litigation was justified for the Movants to reach the point that they believed that they achieved a chance to be successful at summary judgment. If the case against the Roberts was brought forward to trial before a jury, it is certainly debatable whether or not a jury would conclude that they practiced sotne fraud and deceit in the sale of their home. The valid question exists in the mind of reasonable persons that it would be unfathomable that the homeowners did not know about serious problems with their home and that it was illegal to make structural changes without permits, and that in this particular case theymay have in fact hid those problems.from the Plaintiffs in order to facilitate the sale of such a problem property. Plaintifis assert that when all the facts come out after trial, it more than likely will be seen that the Roberts have so far escaped liability. Second, in ruling on motions based on the pleadings and discovery, the Court has determined that there are genuine issues relating to the serious problems subsequently discovered with the house in question and whether such problems were known by the defendants and kept hidden from the Plaintiffs, or whether the Defendants failed to perform the duties they owed to the Plaintiffs. Put another way, the house the Plaintiffs bought was a lemon; this fact appears to have been kept from the Plaintiffs and they were misled to believe the house was in fairly good condition by the Defendants, and a reasonable person would believe that the Roberts may have had a part in the deception. It is not unreasonable for a person who is buying a house from an owner to believe in good faith, once serious defects are found in the house, that the owner themselves were aware of the defects and failed to inform the buyers so that they could unload the house on an unwitting buyer. More importantly, in order to receive the relief that the Roberts seek, they have to prove to this Court that the Plaintiffs’ action in filing this suit was "insubstantial," "frivolous" and not done in "good faith." As stated above, Plaintiffs had good reason to believe the Movants had to know about the serious defects in the home they lived in but failed to relay such defects to the Plaintifis prior to selling them the home. In Plaintiffs’ stated view, it appeared at all stages that the Defendants acted together. Plaintiffs respectfully submit that they had the right to seek relief against the Roberts and had a reasonable and good faith belief that they were that they would have been successftl in doing so given the atrocious state of the home and defects discovered that were obscured fromPlaintiffs as well as the apparent actions in unison with Defendants who have not survived the summary judgment process. This Court ruled in favor of Plaintiffs when similar challenges were raised by movants earlier in this action. and movants chose the timing of their summary judgment motion knowing they would incur costs in doing so. It is incomprehensible-to see how movant can now claim that Plaintiffs claims were insubstantial, frivolous and advanced:in bad faith. It remains likewise incomprehensible that the Roberts were not aware of the defects in the ome they lived in and certainly were aware that no permits were pulled by them during their time of ownership for repairs that were made by or om their behalf. To grant the Roberts’ Motion, this . Court has to make specific findings that the suit was insubstantial, frivolous and not brought in good faith. That is an extremely high hurdle the Roberts have to leap pursuant to the facts of this case. Plaintiffs submit that the Roberts have failed to meet that burden. CONCLUSION The Motion lacks merit and ought to be denied without further proceedings. Respectfully submitted, Plaintiffs, - By their attorney, DATED: April 19, 2021 : J, f {| Pp : acted [Le Jn, am BBO#; 651251 Chambers Law Office 220 Broadway, Suite 404 Lynnfield, MA-01940 Office: (781) 581-2031 Cell: (781) 363-1773 Fax: (781) 581-8449 Email; Richard@chamberslawoffice.comCERTIFICATE OF SERVICE I, Richard C. Chambers, Jr., Esq., hereby certify that on this 19" day of April, 2021, served a true and accurate copy of the foregoing document to counsel of record by via electronic mail and U.S. First Class Mail as follows: Patrick T. Matthews, Esq. Coastal Legal Affiliates, P.C. _ P.O, Box 1870 Fall River, MA 02722 Se Richard C. Chambars, Jr, Esq.Chambers Law Office Tel: (781) 581-2031 Richard C. ‘Chambers, Jr. Fax: (781) 581-8449. Joseph Spinale Matthew Littleton * 220 Broadway, Suite 404 . : + Lynnfield, MA.01940 Paralegal * : www.ChambersLaw(fice.com April 19, 2021 SENT VIA U.S. FIRST CLASS MAIL AND._E-MAIL. PIMATTHEWS@FALLRIVERATTORNEYS.COM Patrick T. Matthews, Esq. Coastal Legal Affiliates, P.C. P.O. Box 1870 Fall River, MA 02722 Re: Carolyn O’Reagan et al v. Jeffrey J, Roberts et al Civil Action No.: 1773CV¥01030 Dear Attorney Matthews, Pursuant to Superior Court Rule 9A, please find enclosed'an original, and copy, of Plaintiffs’ Opposition to Motion for Post Judgment Award of Reasonable Attorney's Fees and Expenses. Should you have any questions or concemis, please do not hesitate to contact me. Yours truly; Richard C. (Cate Enclosures