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COMMONWEALTH OF MASSACHUSETTS
BARNSTABLE, ss, SUPERIOR COURT DEPARTMENT
CIVIL ACTION NO. 1372CV00125
) .
RICK YATSENICK and JOAL ) fs [ry r
YATSENICK ) iy nid aoote Lots: darter
Plaintiffs, ) ArLowstl 3 i Facts; le
) as te Laws,
ve By Wi cou (dilea JI)
OLD WHARF VILLAGE, LLC, ) (yeh ul jf lhe Baa
CHARLES EDGAR, DAVID DILLON) 1-e a V ff ,t UL
D/B/A DILLON REALESTATE, and) Aad Cle
STACEY CURLEY, ) of
Defendants. ) (du
ee)
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PLAINTIFFS’ MOTION IN LIMINE TO PRECLUDE THE DEFENDANTS’ f 52
INTRODUCTION OF EVIDENCE AND/OR COMMENTARY ON OTHER
LITIGATION, INCLUDING OLD WHARF VILLAGE, LLC et al. v. DAWN M. SKIBA,
PERSONAL REPRESENTATIVE OF THE ESTATE OF DAVID J. SKIBA,
BARNSTABLE DISTRICT COURT, CIVIL ACTION NO. 1525000400
The Plaintiffs, Rick Yatsenick and Joal Yatsenick (collectively “Plaintiffs”), by and
through counsel, hereby respectfully move in limine to preclude the Defendants, Old Wharf
Village, LLC and Charles Edgar (collectively “Defendants”), from introducing any evidence,
references to evidence, testimony or argument relating to any other pending litigation, including,
but not limited to, the Defendants’ action in the Barnstable District Court captioned Old Wharf
Village, LLC et al. v. Dawn M. Skiba, Personal Representative of The Estate of David J. Skiba,
Civil Action No. 1525CV000400 (the “District Court Action”). As a basis therefor, the Plaintiffs
state that any other litigation, including the District Court Action, is not relevant to the Plaintiffs’
claims against the Defendants in this case.FACTUAL & PROCEDURAL BACKGROUND
1. The above-captioned action arises out of the Plaintiffs’ purchase of a purported
single-family, year-round condominium unit in Dennis, Massachusetts. In their Verified
Complaint initiating the action, the Plaintiffs asserted various counts against the Defendants, Old
Wharf Village, LLC, Charles Edgar, David Dillon d/b/a Dillon Real Estate, and Stacey Curley.
2. The Plaintiffs’ Condominium Unit Deed, by which the Defendant Old Wharf
Village, LLC, conveyed the subject unit to the Plaintiffs, states as follows: “The purpose for
which the Condominium and each of the units is intended is only for year round single family
residences in each of the units as set forth in the aforesaid Master Deed.”
3. More than two years after the filing of the above-captioned matter, the Defendants
instituted the District Court Action against Dawn M. Skiba, Personal Representative of The
Estate of David J. Skiba (“Skiba”). While the Plaintiffs are not a party to the District Court
Action, it is their understanding that the case involves claims of the Defendants to the effect that
Skiba, their attorney in connection with the closing of the Plaintiffs’ unit, made certain
scrivener’s errors in the Plaintiffs’ Condominium Unit Deed.
4. On or about April 14, 2016, or more than three years after the filing of the above-
captioned matter, the Defendants served a Motion to Add an Indispensable Party, which sought
to add Skiba as a party to this action. The Plaintiffs’ opposed the Defendants’ Motion to Add an
Indispensable Party. The Court Denied the Motion, without further memorandum of decision, on
May 23, 2016.
ARGUMENT
The Defendants’ District Court Action against their counsel, Skiba, is wholly irrelevant to
the claims advanced by the Plaintiffs against the Defendants in the above-captioned matter.pe
Moreover, any evidence and/or commentary on the other litigation will be unduly prejudicial, as
it is likely to confuse and mislead the jury from the evidence presented and will suggest that
there is another party potentially responsible for the Plaintiffs’ damages.
“The purpose of a motion in limine is to prevent irrelevant, inadmissible or prejudicial
matters from being admitted in evidence.” City of Bos. y. Bd. of. Fduc., 392 Mass. 788, 796
(1984), quoting Commonwealth v. Hood, 389 Mass. 581, 594 (1983); see Mass. G. Evid. § 103(f)
(2016). “Generally, a trial judge is accorded ‘substantial discretion in deciding whether evidence
is relevant,’ and whether relevant evidence should be excluded if it is less probative than
prejudicial. ... The judge’s decision will stand absent palpable error.” Commonwealth v. Talbot,
444 Mass. 586, 589 n.2 (2005), quoting Commonwealth v. Tobin, 392 Mass. 604, 613 (1984); see
Mass. G. Evid. §§ 401-403. “Although relevant, evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.” City of Bos. v. U.S. Gypsum Co., 37 Mass. App. Ct. 253, 261 n.18 ( 1994).
Evidence of the District Court Action and the claims advanced by the Defendants against
Skiba, a non-party to this action, therein, is not relevant to this matter under Mass. G. Evid.
§ 401. Section 401 provides that “‘[e]vidence 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 (2017); Commonwealth v. Shuchardt, 408 Mass.
347, 350 (1990). The Plaintiffs’ claims in this action concern the representations of the
Defendants to the Plaintiffs — the Plaintiffs have not asserted any cause of action against Skiba
and have not advanced any contention of wrongdoing on the part of Skiba.Moreover, even where evidence is relevant, it should still be excluded “if its probative
value is substantially outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Mass. G. Evid. § 403; see In re Ethicon, Inc., Pelvic Repair System
Products Liability Litigation, Nos. 212-MD-02327, 2:!2-cv-4301, 2014 WL 505234, at *5-6
(S.D.W.Va. 2014) (recognizing that, under the analogous Rule 403 of the Federal Rules of Civil
Procedure, “evidence of other lawsuits and the factual allegations therein is inadmissible”).!
Here, even if existence of the District Court Action were regarded as relevant to the above-
captioned matter, any probative value would be substantially outweighed by the danger of unfair
prejudice to the Plaintiffs. The mere fact that a separate lawsuit is pending, in which the
Defendants allege wrongdoing by Skiba, may improperly prejudice the jury, or cause the jury to
conclude that an unforeseen third party is actually responsible for the damages incurred by the
Plaintiffs, for reasons unrelated to the dispute before them. This is particularly the case where
nothing has been tried or established in the District Court Action; instead, reference to the.
lawsuit would be premised only upon unsubstantiated allegations that have no basis in fact. In
sum, such evidence of the District Court Action is likely to confuse and mislead the jury from
their consideration of the evidence in this action, and it would be highly prejudicial.
' The Ethicon, Inc. Memorandum Opinion and Order on Motions in Limine also noted
that “evidence of lawsuits is generally considered inadmissible hearsay.” Id. at *6, citing
Johnson v. Form Motor Co., 988 F.2d 573, 579 (Sth Cir. 1993) (“a brief summary of claims,
lawsuits, and complaints ... amounts to nothing more than a summary of allegations by others
which constitute hearsay”); Roberts v. Harnischfeger Corp., 901 F.2d 42, 44-45 (5th Cir. 1989);
Abu Dhabi Commercial Bank v. Morgan Stanley & Co Inc., No. 08 CIV. 7508 SAS, 2013 WL
1155420, at *7 (S.D.N.Y. 2013) (excluding “[rJeferences to other lawsuits including their factual
allegations and evidence”).CONCLUSION
For the foregoing reasons, the Plaintiffs respectfully request that this Honorable Court
preclude the Defendants from introducing any evidence and/or commenting on any other
litigation, including the District Court Action, during the trial of the above-captioned matter.
REQUEST FOR RELIEF
WHEREFORE, the Plaintiffs respectfully request that this Honorable Court issue an
Order:
1. precluding the Defendants from introducing any evidence and/or commenting on
. any other litigation, including, but not limited to, the Defendants’ action in the
C Barnstable District Court captioned Old Wharf Village, LLC et al. v. Dawn M.
Skiba, Personal Representative of The Estate of David J. Skiba, Civil Action No.
1525CV000400, at the trial of the above-captioned matter; and
2. granting such further and additional relief as the Court deems fair and equitable.Respectfully submitted,
RICK YATSENICK and
JOAL YATSENICK,
By their attorney,
Ros flay Crayon
Douglas A. Troyer (BBO #645134)
Moriarty Troyer & Malloy LLC
30 Braintree Hill Office Park, Suite 205
Braintree, MA 02184
(781) 817-4900
co dtroyer@lawmtm.com
Dated: February 14, 2018
fo.CERTIFICATION OF SERVICE
Thereby certify that on February 14, 2018, I served a true and correct copy of this
document upon all counsel of record via Federal Express Overnight.
Douglas ae a x
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COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss, SUPERIOR COURT DEPARTMENT CIVIL ACTION NO. 1372CV00125 ) . RICK YATSENICK and JOAL ) fs [ry r YATSENICK ) iy nid aoote Lots: darter Plaintiffs, ) ArLowstl 3 i Facts; le ) as te Laws, ve By Wi cou (dilea JI) OLD WHARF VILLAGE, LLC, ) (yeh ul jf lhe Baa CHARLES EDGAR, DAVID DILLON) 1-e a V ff ,t UL D/B/A DILLON REALESTATE, and) Aad Cle STACEY CURLEY, ) of Defendants. ) (du ee) <7! PLAINTIFFS’ MOTION IN LIMINE TO PRECLUDE THE DEFENDANTS’ f 52 INTRODUCTION OF EVIDENCE AND/OR COMMENTARY ON OTHER LITIGATION, INCLUDING OLD WHARF VILLAGE, LLC et al. v. DAWN M. SKIBA, PERSONAL REPRESENTATIVE OF THE ESTATE OF DAVID J. SKIBA, BARNSTABLE DISTRICT COURT, CIVIL ACTION NO. 1525000400 The Plaintiffs, Rick Yatsenick and Joal Yatsenick (collectively “Plaintiffs”), by and through counsel, hereby respectfully move in limine to preclude the Defendants, Old Wharf Village, LLC and Charles Edgar (collectively “Defendants”), from introducing any evidence, references to evidence, testimony or argument relating to any other pending litigation, including, but not limited to, the Defendants’ action in the Barnstable District Court captioned Old Wharf Village, LLC et al. v. Dawn M. Skiba, Personal Representative of The Estate of David J. Skiba, Civil Action No. 1525CV000400 (the “District Court Action”). As a basis therefor, the Plaintiffs state that any other litigation, including the District Court Action, is not relevant to the Plaintiffs’ claims against the Defendants in this case.FACTUAL & PROCEDURAL BACKGROUND 1. The above-captioned action arises out of the Plaintiffs’ purchase of a purported single-family, year-round condominium unit in Dennis, Massachusetts. In their Verified Complaint initiating the action, the Plaintiffs asserted various counts against the Defendants, Old Wharf Village, LLC, Charles Edgar, David Dillon d/b/a Dillon Real Estate, and Stacey Curley. 2. The Plaintiffs’ Condominium Unit Deed, by which the Defendant Old Wharf Village, LLC, conveyed the subject unit to the Plaintiffs, states as follows: “The purpose for which the Condominium and each of the units is intended is only for year round single family residences in each of the units as set forth in the aforesaid Master Deed.” 3. More than two years after the filing of the above-captioned matter, the Defendants instituted the District Court Action against Dawn M. Skiba, Personal Representative of The Estate of David J. Skiba (“Skiba”). While the Plaintiffs are not a party to the District Court Action, it is their understanding that the case involves claims of the Defendants to the effect that Skiba, their attorney in connection with the closing of the Plaintiffs’ unit, made certain scrivener’s errors in the Plaintiffs’ Condominium Unit Deed. 4. On or about April 14, 2016, or more than three years after the filing of the above- captioned matter, the Defendants served a Motion to Add an Indispensable Party, which sought to add Skiba as a party to this action. The Plaintiffs’ opposed the Defendants’ Motion to Add an Indispensable Party. The Court Denied the Motion, without further memorandum of decision, on May 23, 2016. ARGUMENT The Defendants’ District Court Action against their counsel, Skiba, is wholly irrelevant to the claims advanced by the Plaintiffs against the Defendants in the above-captioned matter.pe Moreover, any evidence and/or commentary on the other litigation will be unduly prejudicial, as it is likely to confuse and mislead the jury from the evidence presented and will suggest that there is another party potentially responsible for the Plaintiffs’ damages. “The purpose of a motion in limine is to prevent irrelevant, inadmissible or prejudicial matters from being admitted in evidence.” City of Bos. y. Bd. of. Fduc., 392 Mass. 788, 796 (1984), quoting Commonwealth v. Hood, 389 Mass. 581, 594 (1983); see Mass. G. Evid. § 103(f) (2016). “Generally, a trial judge is accorded ‘substantial discretion in deciding whether evidence is relevant,’ and whether relevant evidence should be excluded if it is less probative than prejudicial. ... The judge’s decision will stand absent palpable error.” Commonwealth v. Talbot, 444 Mass. 586, 589 n.2 (2005), quoting Commonwealth v. Tobin, 392 Mass. 604, 613 (1984); see Mass. G. Evid. §§ 401-403. “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” City of Bos. v. U.S. Gypsum Co., 37 Mass. App. Ct. 253, 261 n.18 ( 1994). Evidence of the District Court Action and the claims advanced by the Defendants against Skiba, a non-party to this action, therein, is not relevant to this matter under Mass. G. Evid. § 401. Section 401 provides that “‘[e]vidence 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 (2017); Commonwealth v. Shuchardt, 408 Mass. 347, 350 (1990). The Plaintiffs’ claims in this action concern the representations of the Defendants to the Plaintiffs — the Plaintiffs have not asserted any cause of action against Skiba and have not advanced any contention of wrongdoing on the part of Skiba.Moreover, even where evidence is relevant, it should still be excluded “if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Mass. G. Evid. § 403; see In re Ethicon, Inc., Pelvic Repair System Products Liability Litigation, Nos. 212-MD-02327, 2:!2-cv-4301, 2014 WL 505234, at *5-6 (S.D.W.Va. 2014) (recognizing that, under the analogous Rule 403 of the Federal Rules of Civil Procedure, “evidence of other lawsuits and the factual allegations therein is inadmissible”).! Here, even if existence of the District Court Action were regarded as relevant to the above- captioned matter, any probative value would be substantially outweighed by the danger of unfair prejudice to the Plaintiffs. The mere fact that a separate lawsuit is pending, in which the Defendants allege wrongdoing by Skiba, may improperly prejudice the jury, or cause the jury to conclude that an unforeseen third party is actually responsible for the damages incurred by the Plaintiffs, for reasons unrelated to the dispute before them. This is particularly the case where nothing has been tried or established in the District Court Action; instead, reference to the. lawsuit would be premised only upon unsubstantiated allegations that have no basis in fact. In sum, such evidence of the District Court Action is likely to confuse and mislead the jury from their consideration of the evidence in this action, and it would be highly prejudicial. ' The Ethicon, Inc. Memorandum Opinion and Order on Motions in Limine also noted that “evidence of lawsuits is generally considered inadmissible hearsay.” Id. at *6, citing Johnson v. Form Motor Co., 988 F.2d 573, 579 (Sth Cir. 1993) (“a brief summary of claims, lawsuits, and complaints ... amounts to nothing more than a summary of allegations by others which constitute hearsay”); Roberts v. Harnischfeger Corp., 901 F.2d 42, 44-45 (5th Cir. 1989); Abu Dhabi Commercial Bank v. Morgan Stanley & Co Inc., No. 08 CIV. 7508 SAS, 2013 WL 1155420, at *7 (S.D.N.Y. 2013) (excluding “[rJeferences to other lawsuits including their factual allegations and evidence”).CONCLUSION For the foregoing reasons, the Plaintiffs respectfully request that this Honorable Court preclude the Defendants from introducing any evidence and/or commenting on any other litigation, including the District Court Action, during the trial of the above-captioned matter. REQUEST FOR RELIEF WHEREFORE, the Plaintiffs respectfully request that this Honorable Court issue an Order: 1. precluding the Defendants from introducing any evidence and/or commenting on . any other litigation, including, but not limited to, the Defendants’ action in the C Barnstable District Court captioned Old Wharf Village, LLC et al. v. Dawn M. Skiba, Personal Representative of The Estate of David J. Skiba, Civil Action No. 1525CV000400, at the trial of the above-captioned matter; and 2. granting such further and additional relief as the Court deems fair and equitable.Respectfully submitted, RICK YATSENICK and JOAL YATSENICK, By their attorney, Ros flay Crayon Douglas A. Troyer (BBO #645134) Moriarty Troyer & Malloy LLC 30 Braintree Hill Office Park, Suite 205 Braintree, MA 02184 (781) 817-4900 co dtroyer@lawmtm.com Dated: February 14, 2018 fo.CERTIFICATION OF SERVICE Thereby certify that on February 14, 2018, I served a true and correct copy of this document upon all counsel of record via Federal Express Overnight. Douglas ae a x