Preview
SUPERIOR COURT
BARNSTABLE, &¢
E atl RIGINAL
FILED} JAN 16 2019
PIS,
COMMONWEALTH OF MASSAC TTS
kL tebe Clerk
BARNSTABLE, ss. SUPERIOR COURT- DEPARTMENT
CIVIL ACTION NO. 1372CV00125
RICK YATSENICK and JOAL
YATSENICK. -
Plaintiffs,
Vv.
OLD WHARF VILLAGE, LLC,
CHARLES EDGAR, DAVID DILLON
D/B/A DILLON REAL ESTATE, and
STACEY CURLEY,
Defendants.
et”)
NS SS
PLAINTIFFS’ MOTION IN OPPOSITION TO THE DEFENDANTS’ MOTION TO
DISCHARGE ATTACHMENT OF PROPERTY OF OLD WHARF VILLAGE, LLC
Now comes the Plaintiffs, Rick Yatsenick and Joal Yatsenick, by and through counsel
and respectfully requests this Honorable Court deny the Defendants’ Motion to Discharge
Attachment of Property of Old Wharf Village, LLC. In support thereof the Plaintiffs rely upon
their positions as set forth in their Motion for a New Trial (See Docket Entry #108, 108.4) and
their Opposition to the Defendants’ Motion for Costs and Attomey’s Fees (Docket Entry
Pending). In further support the Plaintiffs state as follows:
A. STATUTORY AUTHORITY FOR MAINTAINING THE REAL ESTATE
ATTACHMENT
Pursuant to Mass. G. L. Ch. 223, Sec. 115, in a civil action the real estate attachment
shall be dissolved only upon exhaustion of all possible appellate review. The Plaintiffs have
currently filed a motion for a new trial and intend to take subsequent action should that motion
not be granted, The statute enumerates that the attachment shall be in full force and effect until
1all such appellate review is exhausted. The Defendants argue that because the Plaintiffs did not
prevail at trial that this automatically gives rise to dissolve the real estate attachments. This is not
the law and runs afoul with the statute.
B. DEFENDANTS RELIANCE UPON MASS. G. L. CH. 223, SEC 114 IS
MISPLACED
The Defendants rely upon Mass. G. L. Ch. 223, Sec. 114 as authority to dissolve the real
estate attachment as to Old Wharf Village LLC. Such reliance is misplaced because the
Defendants have advanced no new facts or law that would give rise to such a dissolution. The
Defendants’ Motion to Discharge Attachment of Property of Old Wharf Village, LLC merely
contains legal conclusions which are not supported by any factual or legal argument. Indeed, the
Defendants simply state that the Plaintiffs’ arguments contained in their Motion for a New Trial
are “meritless” without any explanation in support of such a statement.
C, DEFENDANTS’ MISSTATE THE PLAINTIFFS’ POSITION IN REGARDS TO
THE JURY’S VERDICT
Contrary to the Defendants’ assertions in their motion, the Plaintiffs never argued in their
Motion for a New Trial that the jury’s findings were inconsistent. Instead, the Plaintiffs stated
that the jury was confused with regards to the improper jury instructions and further with the
Defendants’ own misconduct at trial, where the Defendant stood up and read to the jury a portion
of the Plaintiff’s deposition, calling it an admission, without the requisite notice to the Plaintiffs.
This violated both the Trial Order, the doctrine of completeness and was tantamount to trial by
ambush. Furthermore, it is the Defendants themselves that called the jury’s findings “illogical.”
See Footnote 1 of the Defendants’ Opposition to the Plaintiffs’ Motion for a New Trial.D. THE PLAINTIFFS ADVANCED THEIR CLAIMS IN GOOD FAITH AND
ALWAYS WERE OPEN TO SETTLEMENT NEGOTIATIONS
Contrary to the Defendants’ assertions, all claims against the Defendants were advanced
in good faith to judicially redress the Defendants’ misrepresentations which caused the Plaintiffs
to buy into a commercial motel venture when they thought they were buying a single family year
round residential condominium, as was represented to them by the Defendants. As was later
revealed, during the discovery process, the Defendants were engaged in a common plan or
scheme as 4 unit owners were deposed by the Plaintiffs and all testified that they were duped into
buying a commercial motel venture when in fact they too thought they were buying single family
residential condominiums. The claims of the Plaintiffs have been tested by numerous motions by
way of summary judgment and judgment on the pleadings as late as several months before trial
and each and every time the Court has denied the Defendants’ motions and further stated that
there maintains a high likelihood of success on the merits of the Plaintiffs’ claims. The
Defendants even went as far as to appeal the real estate attachments to the Massachusetts
Appeals Court, which after a full briefing, affirmed this Court’s finding that the Plaintiffs have a
high likelihood of success on the merits.
Furthermore, the Defendants assertions that the Plaintiffs failed to engage in settlement
negotiations is totally unfounded. The Plaintiffs at all times, since before even filing this
litigation have only wanted their money back. The Defendants themselves allege that it was their
closing attorney who mistakenly put in their deed that the intended use was for single family year
round residential condominium. If that is true then that is tantamount to an admission by the
Defendants that a unilateral mistake was made on their part and they should have readily given
the Plaintiffs their money back and accepted a deed back from the Plaintiffs. That would have
negated any and all litigation to begin with. At no point in time did the Defendants make thismore than reasonable offer of settlement. The Plaintiffs were more than willing to mediate this
case with the Defendants but were repeatedly rebuffed. The Plaintiffs even suggested hiring
retired Superior Court Judge Suzanne DelVecchio to conduct the mediation, as they had done so
with a prior Co-Defendant. Any and all request for mediation or settlement by the Defendant was
nothing more than hollow talk.
Lastly, as the Courts encourage with joint tortfeasors, one of the Co-Defendants did in
fact make a reasonable offer of settlement, which the Plaintiffs accepted. It by no means, covered
anywhere near the damages that the Plaintiffs had sustained due to the Defendants’ tortious
misrepresentations in a common plan or scheme to defraud multiple people including the
Plaintiffs.
E. THE BREACH OF CONTRACT CLAIM AND THE ERRONEOUS JURY
INSTRUCTIONS
To this day the Plaintiffs’ deed is still fatal as it states the intended use as being for single
family year round residential purposes. The intended use does not match the use of the Master
Deed, nor can it be used that way pursuant to the Town of Dennis zoning bylaws. The Deed
further violates Mass. G. L. Ch. 183A Sec. 4.3 which states in relevant part that the unit owner
must comply with the use provisions of the both the Master Deed and the Unit Deed which is an
impossibility. The Plaintiffs’ contract claim is grounded on the premises that the deed was fatal
on its face upon delivery as the subject property can never be used for single family residential
purposes. It was represented to the Plaintiffs by the Defendants that the property was in fact a
motel that was converted into single family residential condominiums, they purchased the
property with the intent to retire there, and have borne the carrying expenses for the last eight
years. These expenses are ongoing and cannot be offset and even if the Plaintiffs wanted to
become actively involved and assume the risks of a motel business they couldn’t because of theDefendants’ own conduct in failing to comply with all the numerous rules, regulations, statutes
and conditions with regard to the operation of a legal motel. As such the Plaintiffs cannot legally
use, rent or scll the property until the Defendants comply with the conditions set forth in the
2015 Special Permit and the numerous other laws.
We note that the jury instructions misapplied the law and the Plaintiffs’ Complaint by
alleging that it was the Purchase and Sale Agreement that was breached and directed the jury to
only look at the Purchase and Sale Agreement and reliance upon the Multiple Listing Sheet.
Obviously, given those restraints, no reasonable jury would find that the contract was breached,
rather as alleged in the averments with the Plaintiffs complaint, the breach of contract was on the
face of the deed and the jury instructions should have reflected what was alleged in the Plaintiffs’
complaint. As such, the jury never heard the Plaintiffs’ breach of contract claim as it was pled in
their complaint.
F. THE ERRONEOUS JURY INSTRUCTIONS INFECTED THE PLAINTIFFS’
CHAPTER 93A COUNT AS WELL
Furthermore, the erroneous jury instructions foreclosed any relief that would have been
afforded to the Plaintiffs in their 93A count. This Commonwealth has established that a breach
of contract may give rise to a violation of Chapter 93A if the breach was known and was
intended to secure “unbargained-for benefits" to the detriment of the other party. Zabin v.
Picciotto, 896 N.E.2d 937, 73 Mass. App. Ct. 141 (2008). In the instant case the Defendants
knew of the breach and intended to gain substantial “unbargained-for benefits” to the detriment
of the Plaintiffs. The live testimony of the Defendant, Charles Edgar, revealed that he knew that
the first two deeds prepared were defective with regards to the disclosed use and he further
testified that he fired his attorney because. of the defects in the deeds which happened long before
the Plaintiffs’ 93A demand letter and subsequent complaint which was filed thereafter. TheDefendant, by his own admission, knew of the defects yet failed to address them within the
responses to the 93A demand letters. ‘This clearly shows that the Defendant knew of the breach
of contract but the improper jury instructions foreclosed the jury from making such a finding.
This further foreclosed the jury from making a finding with regards to the Defendants’
failure to give a reasonable response to their 93A demand letters. If the Court properly charged
the jury they could have found that the intentional breach of contract not only gave rise to a
violation of Chapter 93A, but also that the Defendants failed to make a reasonable offer of
settlement in their 93A response letters. This is supported by the fact that the jury found that both
Charles Edgar and Old Wharf Village LLC did in fact fail to tender a reasonable offer of
settlement in their 93A response letters. The Defendants made no mention of mistake in their
93A response letters. The jury could reasonably find that if the Defendants raise as a defense that
their counsel negligently inserted the offensive language into the deed, rendering the deed fatal
upon delivery, that the Defendants should have stated in their response to the Plaintiffs’ 93A
demand letter that the language contained within the deed is somehow a mistake. However, a fair
reading of the 93A letter responses is devoid of any reference to mistake. If this was truly a
mistake, then one would obviously expect to find language to that effect in the response to the
93A demand letter but the jury was foreclosed from making such a determination because of the
Court’s failure to instruct the jury properly both factually and legally with regards to the
Plaintiffs’ breach of contract claim.
G. THE JURY WAS MISLED ON THE ISSUE OF THE RELIANCE
The Defendants disingenuously argue that because the Plaintiffs’ closing attorney failed
to inform them what the true use of the subject property was, that this somehow negates as a
matter of law the Defendants’ liability for their material misrepresentations. What is thisargument? Are the Defendants really suggesting to this Honorable Court that simply because an
attorney negligently fails to discoverer the fraud that the fraudster gets to reap the benefits, keep
the fruit of his fraud and walk away unscathed? To the contrary, in our Commonwealth a
Defendant does not escape liability for fraud or violations of Chapter 93A because of a third
party’s negligence in not identifying the fraud. Light y. Jacobs, 183 Mass. 206, 66 N.E. 799
(1903).
As set forth in Light v. Jacobs, 183 Mass. 206, 66 N.E. 799 (1903) the plaintiffs were
duped into purchasing an interest in real property and hired a title insurance company to conduct
an independent investigation as to both the state of the title and the value of said property, the
Court held that the rule is that it is not necessary that the false representations should have been
the sole or even the predominant motive; it is enough if they had material influence on the person
deceived although combined with other motives. The Court further found that the statements
made by the title company as to the assessed value and the market value of the property were
considered by the plaintiff in connection with the represcntations made to the plaintiff by the
defendants, but that the plaintiff would not have entered into any agreement with the defendants
but for the false representations made by the defendants and the reliance placed on these false
misrepresentations. Jd. at 207, 66 N.E. 799, 800 (1903). Under the guise of Light, supra, in the
instant case it was improper for the Defendants to mislead the jury by arguing that the applicable
law mandated that the Plaintiffs could only rely on Attorney Curley’s investigation, rather than
on a multitude of sources, including the Defendants’ misrepresentations. See Sec. 546
Restatement (2) of Torts: Causation in Faction (1977).
H. THE DEFENDANTS’ IMPROPER DEPOSITION USEThe Defendants state that no notice was required for the reading of the Plaintiffs
deposition. This is not the law. The Plaintiffs state that the Trial Order dated October 23, 2017 by
the Honorable Justice Rufo, specifically mandates that if deposition transcripts are to be offered
at trial that the parties shall no later than 5 business days prior to the commencement of the trial, :
supply to the court a transcript of the deposition testimony with any objections highlighted. The
Defendants’ failure to comply with the trial order by providing notice at least 5 business days
prior to the trial date violated the doctrine of completeness, tainted the jury, and was tantamount
to trial by ambush. The Defendants further allege that no portion of the Plaintiff's deposition
transcript could have rehabilitated the Plaintiff's trial testimony. This statement was
disingenuous for had the Plaintiffs had notice they would have read pg. 198 of the Plaintiff's
deposition which stated that the Plaintiff spoke with Attorney Curley to confirm that everything
was a go and further spoke and confirmed with Defendant Charles Edgar that everything was ok.
Absent the required advance notice, and after Plaintiffs’ objection, there was no practical way
that the Plaintiffs could have found the passage in a four year old deposition on such short notice.
This testimony would have negated the Defendants’ misguided advancement to the jury that the
Plaintiffs only relied on their attorney’s failed investigation of the use of the property. Having
failed to comply with the doctrine of completeness the Defendants misled the jury on the issue of
reliance and severely prejudiced the Plaintiffs. This prejudice was compounded even further by
the Defendants’ reading of the Plaintiff's deposition during her closing argument.
WHEREFORE, the Plaintiffs respectfully requests this Honorable Court make findings
and deny the Defendants’ Motion to Discharge Attachment of Property of Oid Wharf Village,
LLC.Respectfully submitted,
THE PLAINTIFFS,
By their Attorneys
Brian K. Se Esquire
BBO# 566078
25 Lady Slipper Drive
Plymouth, MA 02360
(508) 591-7811
Fax: (508)746-1817
bkglegal@gmail.com
January 4, 2019
loan LLL,
Kevin F. Bowen, Esquire
BBO# 051450
395 Smith Street
Providence, RI 02908
(401) 831-1600
Fax: (401) 831-0129
kbowen@bbglaw.us
CERTIFICATE OF SERVICE
J hereby certify that a true copy of the forgoing document was served upon counsel of record for
all known parties herein by causing a copy to be delivered by first class mail this 4" day of
January, 2019.
Brian K. la, Esq.
B.B.O. #566078
25 Lady Slipper Drive
Plymouth, MA 02360
Phone: (508) 591-7303
Fax: (508) 746-1817
Email: bkglegal@gmail.com
Preview
SUPERIOR COURT BARNSTABLE, &¢ E atl RIGINAL FILED} JAN 16 2019 PIS, COMMONWEALTH OF MASSAC TTS kL tebe Clerk BARNSTABLE, ss. SUPERIOR COURT- DEPARTMENT CIVIL ACTION NO. 1372CV00125 RICK YATSENICK and JOAL YATSENICK. - Plaintiffs, Vv. OLD WHARF VILLAGE, LLC, CHARLES EDGAR, DAVID DILLON D/B/A DILLON REAL ESTATE, and STACEY CURLEY, Defendants. et”) NS SS PLAINTIFFS’ MOTION IN OPPOSITION TO THE DEFENDANTS’ MOTION TO DISCHARGE ATTACHMENT OF PROPERTY OF OLD WHARF VILLAGE, LLC Now comes the Plaintiffs, Rick Yatsenick and Joal Yatsenick, by and through counsel and respectfully requests this Honorable Court deny the Defendants’ Motion to Discharge Attachment of Property of Old Wharf Village, LLC. In support thereof the Plaintiffs rely upon their positions as set forth in their Motion for a New Trial (See Docket Entry #108, 108.4) and their Opposition to the Defendants’ Motion for Costs and Attomey’s Fees (Docket Entry Pending). In further support the Plaintiffs state as follows: A. STATUTORY AUTHORITY FOR MAINTAINING THE REAL ESTATE ATTACHMENT Pursuant to Mass. G. L. Ch. 223, Sec. 115, in a civil action the real estate attachment shall be dissolved only upon exhaustion of all possible appellate review. The Plaintiffs have currently filed a motion for a new trial and intend to take subsequent action should that motion not be granted, The statute enumerates that the attachment shall be in full force and effect until 1all such appellate review is exhausted. The Defendants argue that because the Plaintiffs did not prevail at trial that this automatically gives rise to dissolve the real estate attachments. This is not the law and runs afoul with the statute. B. DEFENDANTS RELIANCE UPON MASS. G. L. CH. 223, SEC 114 IS MISPLACED The Defendants rely upon Mass. G. L. Ch. 223, Sec. 114 as authority to dissolve the real estate attachment as to Old Wharf Village LLC. Such reliance is misplaced because the Defendants have advanced no new facts or law that would give rise to such a dissolution. The Defendants’ Motion to Discharge Attachment of Property of Old Wharf Village, LLC merely contains legal conclusions which are not supported by any factual or legal argument. Indeed, the Defendants simply state that the Plaintiffs’ arguments contained in their Motion for a New Trial are “meritless” without any explanation in support of such a statement. C, DEFENDANTS’ MISSTATE THE PLAINTIFFS’ POSITION IN REGARDS TO THE JURY’S VERDICT Contrary to the Defendants’ assertions in their motion, the Plaintiffs never argued in their Motion for a New Trial that the jury’s findings were inconsistent. Instead, the Plaintiffs stated that the jury was confused with regards to the improper jury instructions and further with the Defendants’ own misconduct at trial, where the Defendant stood up and read to the jury a portion of the Plaintiff’s deposition, calling it an admission, without the requisite notice to the Plaintiffs. This violated both the Trial Order, the doctrine of completeness and was tantamount to trial by ambush. Furthermore, it is the Defendants themselves that called the jury’s findings “illogical.” See Footnote 1 of the Defendants’ Opposition to the Plaintiffs’ Motion for a New Trial.D. THE PLAINTIFFS ADVANCED THEIR CLAIMS IN GOOD FAITH AND ALWAYS WERE OPEN TO SETTLEMENT NEGOTIATIONS Contrary to the Defendants’ assertions, all claims against the Defendants were advanced in good faith to judicially redress the Defendants’ misrepresentations which caused the Plaintiffs to buy into a commercial motel venture when they thought they were buying a single family year round residential condominium, as was represented to them by the Defendants. As was later revealed, during the discovery process, the Defendants were engaged in a common plan or scheme as 4 unit owners were deposed by the Plaintiffs and all testified that they were duped into buying a commercial motel venture when in fact they too thought they were buying single family residential condominiums. The claims of the Plaintiffs have been tested by numerous motions by way of summary judgment and judgment on the pleadings as late as several months before trial and each and every time the Court has denied the Defendants’ motions and further stated that there maintains a high likelihood of success on the merits of the Plaintiffs’ claims. The Defendants even went as far as to appeal the real estate attachments to the Massachusetts Appeals Court, which after a full briefing, affirmed this Court’s finding that the Plaintiffs have a high likelihood of success on the merits. Furthermore, the Defendants assertions that the Plaintiffs failed to engage in settlement negotiations is totally unfounded. The Plaintiffs at all times, since before even filing this litigation have only wanted their money back. The Defendants themselves allege that it was their closing attorney who mistakenly put in their deed that the intended use was for single family year round residential condominium. If that is true then that is tantamount to an admission by the Defendants that a unilateral mistake was made on their part and they should have readily given the Plaintiffs their money back and accepted a deed back from the Plaintiffs. That would have negated any and all litigation to begin with. At no point in time did the Defendants make thismore than reasonable offer of settlement. The Plaintiffs were more than willing to mediate this case with the Defendants but were repeatedly rebuffed. The Plaintiffs even suggested hiring retired Superior Court Judge Suzanne DelVecchio to conduct the mediation, as they had done so with a prior Co-Defendant. Any and all request for mediation or settlement by the Defendant was nothing more than hollow talk. Lastly, as the Courts encourage with joint tortfeasors, one of the Co-Defendants did in fact make a reasonable offer of settlement, which the Plaintiffs accepted. It by no means, covered anywhere near the damages that the Plaintiffs had sustained due to the Defendants’ tortious misrepresentations in a common plan or scheme to defraud multiple people including the Plaintiffs. E. THE BREACH OF CONTRACT CLAIM AND THE ERRONEOUS JURY INSTRUCTIONS To this day the Plaintiffs’ deed is still fatal as it states the intended use as being for single family year round residential purposes. The intended use does not match the use of the Master Deed, nor can it be used that way pursuant to the Town of Dennis zoning bylaws. The Deed further violates Mass. G. L. Ch. 183A Sec. 4.3 which states in relevant part that the unit owner must comply with the use provisions of the both the Master Deed and the Unit Deed which is an impossibility. The Plaintiffs’ contract claim is grounded on the premises that the deed was fatal on its face upon delivery as the subject property can never be used for single family residential purposes. It was represented to the Plaintiffs by the Defendants that the property was in fact a motel that was converted into single family residential condominiums, they purchased the property with the intent to retire there, and have borne the carrying expenses for the last eight years. These expenses are ongoing and cannot be offset and even if the Plaintiffs wanted to become actively involved and assume the risks of a motel business they couldn’t because of theDefendants’ own conduct in failing to comply with all the numerous rules, regulations, statutes and conditions with regard to the operation of a legal motel. As such the Plaintiffs cannot legally use, rent or scll the property until the Defendants comply with the conditions set forth in the 2015 Special Permit and the numerous other laws. We note that the jury instructions misapplied the law and the Plaintiffs’ Complaint by alleging that it was the Purchase and Sale Agreement that was breached and directed the jury to only look at the Purchase and Sale Agreement and reliance upon the Multiple Listing Sheet. Obviously, given those restraints, no reasonable jury would find that the contract was breached, rather as alleged in the averments with the Plaintiffs complaint, the breach of contract was on the face of the deed and the jury instructions should have reflected what was alleged in the Plaintiffs’ complaint. As such, the jury never heard the Plaintiffs’ breach of contract claim as it was pled in their complaint. F. THE ERRONEOUS JURY INSTRUCTIONS INFECTED THE PLAINTIFFS’ CHAPTER 93A COUNT AS WELL Furthermore, the erroneous jury instructions foreclosed any relief that would have been afforded to the Plaintiffs in their 93A count. This Commonwealth has established that a breach of contract may give rise to a violation of Chapter 93A if the breach was known and was intended to secure “unbargained-for benefits" to the detriment of the other party. Zabin v. Picciotto, 896 N.E.2d 937, 73 Mass. App. Ct. 141 (2008). In the instant case the Defendants knew of the breach and intended to gain substantial “unbargained-for benefits” to the detriment of the Plaintiffs. The live testimony of the Defendant, Charles Edgar, revealed that he knew that the first two deeds prepared were defective with regards to the disclosed use and he further testified that he fired his attorney because. of the defects in the deeds which happened long before the Plaintiffs’ 93A demand letter and subsequent complaint which was filed thereafter. TheDefendant, by his own admission, knew of the defects yet failed to address them within the responses to the 93A demand letters. ‘This clearly shows that the Defendant knew of the breach of contract but the improper jury instructions foreclosed the jury from making such a finding. This further foreclosed the jury from making a finding with regards to the Defendants’ failure to give a reasonable response to their 93A demand letters. If the Court properly charged the jury they could have found that the intentional breach of contract not only gave rise to a violation of Chapter 93A, but also that the Defendants failed to make a reasonable offer of settlement in their 93A response letters. This is supported by the fact that the jury found that both Charles Edgar and Old Wharf Village LLC did in fact fail to tender a reasonable offer of settlement in their 93A response letters. The Defendants made no mention of mistake in their 93A response letters. The jury could reasonably find that if the Defendants raise as a defense that their counsel negligently inserted the offensive language into the deed, rendering the deed fatal upon delivery, that the Defendants should have stated in their response to the Plaintiffs’ 93A demand letter that the language contained within the deed is somehow a mistake. However, a fair reading of the 93A letter responses is devoid of any reference to mistake. If this was truly a mistake, then one would obviously expect to find language to that effect in the response to the 93A demand letter but the jury was foreclosed from making such a determination because of the Court’s failure to instruct the jury properly both factually and legally with regards to the Plaintiffs’ breach of contract claim. G. THE JURY WAS MISLED ON THE ISSUE OF THE RELIANCE The Defendants disingenuously argue that because the Plaintiffs’ closing attorney failed to inform them what the true use of the subject property was, that this somehow negates as a matter of law the Defendants’ liability for their material misrepresentations. What is thisargument? Are the Defendants really suggesting to this Honorable Court that simply because an attorney negligently fails to discoverer the fraud that the fraudster gets to reap the benefits, keep the fruit of his fraud and walk away unscathed? To the contrary, in our Commonwealth a Defendant does not escape liability for fraud or violations of Chapter 93A because of a third party’s negligence in not identifying the fraud. Light y. Jacobs, 183 Mass. 206, 66 N.E. 799 (1903). As set forth in Light v. Jacobs, 183 Mass. 206, 66 N.E. 799 (1903) the plaintiffs were duped into purchasing an interest in real property and hired a title insurance company to conduct an independent investigation as to both the state of the title and the value of said property, the Court held that the rule is that it is not necessary that the false representations should have been the sole or even the predominant motive; it is enough if they had material influence on the person deceived although combined with other motives. The Court further found that the statements made by the title company as to the assessed value and the market value of the property were considered by the plaintiff in connection with the represcntations made to the plaintiff by the defendants, but that the plaintiff would not have entered into any agreement with the defendants but for the false representations made by the defendants and the reliance placed on these false misrepresentations. Jd. at 207, 66 N.E. 799, 800 (1903). Under the guise of Light, supra, in the instant case it was improper for the Defendants to mislead the jury by arguing that the applicable law mandated that the Plaintiffs could only rely on Attorney Curley’s investigation, rather than on a multitude of sources, including the Defendants’ misrepresentations. See Sec. 546 Restatement (2) of Torts: Causation in Faction (1977). H. THE DEFENDANTS’ IMPROPER DEPOSITION USEThe Defendants state that no notice was required for the reading of the Plaintiffs deposition. This is not the law. The Plaintiffs state that the Trial Order dated October 23, 2017 by the Honorable Justice Rufo, specifically mandates that if deposition transcripts are to be offered at trial that the parties shall no later than 5 business days prior to the commencement of the trial, : supply to the court a transcript of the deposition testimony with any objections highlighted. The Defendants’ failure to comply with the trial order by providing notice at least 5 business days prior to the trial date violated the doctrine of completeness, tainted the jury, and was tantamount to trial by ambush. The Defendants further allege that no portion of the Plaintiff's deposition transcript could have rehabilitated the Plaintiff's trial testimony. This statement was disingenuous for had the Plaintiffs had notice they would have read pg. 198 of the Plaintiff's deposition which stated that the Plaintiff spoke with Attorney Curley to confirm that everything was a go and further spoke and confirmed with Defendant Charles Edgar that everything was ok. Absent the required advance notice, and after Plaintiffs’ objection, there was no practical way that the Plaintiffs could have found the passage in a four year old deposition on such short notice. This testimony would have negated the Defendants’ misguided advancement to the jury that the Plaintiffs only relied on their attorney’s failed investigation of the use of the property. Having failed to comply with the doctrine of completeness the Defendants misled the jury on the issue of reliance and severely prejudiced the Plaintiffs. This prejudice was compounded even further by the Defendants’ reading of the Plaintiff's deposition during her closing argument. WHEREFORE, the Plaintiffs respectfully requests this Honorable Court make findings and deny the Defendants’ Motion to Discharge Attachment of Property of Oid Wharf Village, LLC.Respectfully submitted, THE PLAINTIFFS, By their Attorneys Brian K. Se Esquire BBO# 566078 25 Lady Slipper Drive Plymouth, MA 02360 (508) 591-7811 Fax: (508)746-1817 bkglegal@gmail.com January 4, 2019 loan LLL, Kevin F. Bowen, Esquire BBO# 051450 395 Smith Street Providence, RI 02908 (401) 831-1600 Fax: (401) 831-0129 kbowen@bbglaw.us CERTIFICATE OF SERVICE J hereby certify that a true copy of the forgoing document was served upon counsel of record for all known parties herein by causing a copy to be delivered by first class mail this 4" day of January, 2019. Brian K. la, Esq. B.B.O. #566078 25 Lady Slipper Drive Plymouth, MA 02360 Phone: (508) 591-7303 Fax: (508) 746-1817 Email: bkglegal@gmail.com