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E) ORIGINAL
COMMONWEALTH OF MASSACHUSETTS
BARNSTABLE, ss. SUPERIOR COURT DEPARTMENT.
BARNSTASL
FILED} JAN 16 2019
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.
Ne ee rs
AFFIDAVIT OF ATTORNEY KEVIN F. BOWEN IN SUPPORT OF THE PLAINTIFFS’ |
OPPOSITION TO THE DEFENDANTS MOTION FOR COSTS AND ATTORNEY’S
FEES
I, Kevin F. Bowen, being duly sworn, depose and state as follows:
1. I have served as counsel for the Plaintiffs since July, 2018. | make this affidavit in
support of the Plaintiffs’ Opposition to the Defendants’ Motion for Costs and Attorney’s Fees. I
hereby state that prior to my agreeing to undertake representation of the Plaintiffs in the above
captioned matter I thoroughly investigatd the facts, the parties and legal theories that the Plaintiffs
had alleged in support of their claims against the defendants. This investigation consisted of my
reviewing the pleadings, discovery materials, prior judicial rulings, conversing at lengthy with
Plaintiffs’ counsel Brian K. Galletta, and also conversing at length with the Plaintiffs. As a result
of my investigation I concluded that the Plaintiffs had meritorious legal claims against the
Defendants arising out of their purchase of a condominium at Old Wharf Village, and that there
was a reasonable likelihood that the Plaintiffs would prevail in their claims at trial. ] would not
have agreed to assume representation of the Plaintiffs had I concluded otherwise. I maintained this
belief continuously through the moment the jury rendered its verdict in this case.
2. I engaged in trial preparation continuously from July 2018 through the date that
trial commenced. My work in this regard only served to strengthen my belief that the facts
CIVIL ACTION NOj 1372€¥.001251, GUURT
Aut be libs. Clerkattendant to this case, and the governing law, provided a solid foundation for the claims being
asserted against the defendants. I believed from the outset of my involvement in this matter that
the most compelling fact supportive of the Plaintiffs’ claims was one that the Defendants
ultimately admitted at trial; that is, in marketing the subject condominium unit to the Plaintiffs the
Defendants intentionally failed to disclose to the Plaintiffs that the legally permitted use of the
subject property was for motel purposes only. Given that the Plaintiffs were of the belief that the
permitted use of the unit was for single family residential purposes, (as testified to by Stacy Curley,
a witness called to testify at trial by the Defendants, as well as by the deed tendered to the Plaintiffs
by the Defendant Old Wharf Village), I believed that this constituted a per se violation of 940
Code Mass. Regs. Sec. 3.16(2) and thus also constituted an unfair and deceptive act in violation
of M.G.L. ch. 93A.
3. Another important fact relevant to my belief that the Plaintiffs’ claims against the
Defendants was well founded was the decision rendered by Judge Nickerson in the related
litigation between Old Wharf Village, LLC, its principles and U.S. Alliance Credit Union. What
was striking to me about this case was that the same technique used to mislead the credit union in
that case (i.e., representing to the credit union that Old Wharf Village, LLC intended to convert a
defunct motel into “condominiums:” was essentially the same misrepresentation that had, in my
viw, been perpetrated by the Denfendants upon the plaintiffs in the instant case.
4. In connection with the Defendants’ Motion to Remove attachment, filed shortly
prior to the commencement of trial, my co-counsel and I attempted to negotiate a resolution to this
dispute, offering to accommodate the Defendants desire to free up some property for financing
purposes so long as doing so would not result in the Plaintiffs overall security being reduced.
5. Thave carefully reviewed the Affidavit of Attorney Brian K. Galletta submitted in
Support of the Plaintiffs’ Opposition to the Defendants’ Motion for Costs and Attorneys Fees. My
own analysis of the facts and applicable law in the present case is in agreement as to every point
made by Attorney Galletta in his affidavit.
6. Ihave been engaged primarily in the field of civil litigation since I began to practice
law some 36 years ago. During this time, I have conducted trials, almost exclusively representing
plaintiffs, in the state and federal courts of Massachusetts, Rhode Island, and Connecticut. It is
clear to me that not only did the Plaintiffs have worthy claims against the Defendants in the instantwot
case, but that these claims were actually very strong, and I believe that the jury verdict in this case
represents an aberration and a miscarriage of justice.
Signed under the pains and penalties of perjury this 24 day of January, 2019.
Respectfully Submitted,
Kein F. Bowen, Esquire
BBO# 051450
(401) 831-1600
Fax: (401) 831-0129
kbowen@bbglaw.us
CERTIFICATE OF SERVICE
Thereby certify that a true copy of the forgoing document was served upon all known parties herein
by causing a copy to be delivered by first class postage prepaid mail this 2- day of January, 2019
Brian K. Galletta, Esq.
B.B.O. #566078
25 Lady Slipper Drive
Plymouth, MA 02360
Phone: (508) 591-7303
Fax: (508) 746-1817
Email: bkglegal@gmail.com
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E) ORIGINAL COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss. SUPERIOR COURT DEPARTMENT. BARNSTASL FILED} JAN 16 2019 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. Ne ee rs AFFIDAVIT OF ATTORNEY KEVIN F. BOWEN IN SUPPORT OF THE PLAINTIFFS’ | OPPOSITION TO THE DEFENDANTS MOTION FOR COSTS AND ATTORNEY’S FEES I, Kevin F. Bowen, being duly sworn, depose and state as follows: 1. I have served as counsel for the Plaintiffs since July, 2018. | make this affidavit in support of the Plaintiffs’ Opposition to the Defendants’ Motion for Costs and Attorney’s Fees. I hereby state that prior to my agreeing to undertake representation of the Plaintiffs in the above captioned matter I thoroughly investigatd the facts, the parties and legal theories that the Plaintiffs had alleged in support of their claims against the defendants. This investigation consisted of my reviewing the pleadings, discovery materials, prior judicial rulings, conversing at lengthy with Plaintiffs’ counsel Brian K. Galletta, and also conversing at length with the Plaintiffs. As a result of my investigation I concluded that the Plaintiffs had meritorious legal claims against the Defendants arising out of their purchase of a condominium at Old Wharf Village, and that there was a reasonable likelihood that the Plaintiffs would prevail in their claims at trial. ] would not have agreed to assume representation of the Plaintiffs had I concluded otherwise. I maintained this belief continuously through the moment the jury rendered its verdict in this case. 2. I engaged in trial preparation continuously from July 2018 through the date that trial commenced. My work in this regard only served to strengthen my belief that the facts CIVIL ACTION NOj 1372€¥.001251, GUURT Aut be libs. Clerkattendant to this case, and the governing law, provided a solid foundation for the claims being asserted against the defendants. I believed from the outset of my involvement in this matter that the most compelling fact supportive of the Plaintiffs’ claims was one that the Defendants ultimately admitted at trial; that is, in marketing the subject condominium unit to the Plaintiffs the Defendants intentionally failed to disclose to the Plaintiffs that the legally permitted use of the subject property was for motel purposes only. Given that the Plaintiffs were of the belief that the permitted use of the unit was for single family residential purposes, (as testified to by Stacy Curley, a witness called to testify at trial by the Defendants, as well as by the deed tendered to the Plaintiffs by the Defendant Old Wharf Village), I believed that this constituted a per se violation of 940 Code Mass. Regs. Sec. 3.16(2) and thus also constituted an unfair and deceptive act in violation of M.G.L. ch. 93A. 3. Another important fact relevant to my belief that the Plaintiffs’ claims against the Defendants was well founded was the decision rendered by Judge Nickerson in the related litigation between Old Wharf Village, LLC, its principles and U.S. Alliance Credit Union. What was striking to me about this case was that the same technique used to mislead the credit union in that case (i.e., representing to the credit union that Old Wharf Village, LLC intended to convert a defunct motel into “condominiums:” was essentially the same misrepresentation that had, in my viw, been perpetrated by the Denfendants upon the plaintiffs in the instant case. 4. In connection with the Defendants’ Motion to Remove attachment, filed shortly prior to the commencement of trial, my co-counsel and I attempted to negotiate a resolution to this dispute, offering to accommodate the Defendants desire to free up some property for financing purposes so long as doing so would not result in the Plaintiffs overall security being reduced. 5. Thave carefully reviewed the Affidavit of Attorney Brian K. Galletta submitted in Support of the Plaintiffs’ Opposition to the Defendants’ Motion for Costs and Attorneys Fees. My own analysis of the facts and applicable law in the present case is in agreement as to every point made by Attorney Galletta in his affidavit. 6. Ihave been engaged primarily in the field of civil litigation since I began to practice law some 36 years ago. During this time, I have conducted trials, almost exclusively representing plaintiffs, in the state and federal courts of Massachusetts, Rhode Island, and Connecticut. It is clear to me that not only did the Plaintiffs have worthy claims against the Defendants in the instantwot case, but that these claims were actually very strong, and I believe that the jury verdict in this case represents an aberration and a miscarriage of justice. Signed under the pains and penalties of perjury this 24 day of January, 2019. Respectfully Submitted, Kein F. Bowen, Esquire BBO# 051450 (401) 831-1600 Fax: (401) 831-0129 kbowen@bbglaw.us CERTIFICATE OF SERVICE Thereby certify that a true copy of the forgoing document was served upon all known parties herein by causing a copy to be delivered by first class postage prepaid mail this 2- day of January, 2019 Brian K. Galletta, Esq. B.B.O. #566078 25 Lady Slipper Drive Plymouth, MA 02360 Phone: (508) 591-7303 Fax: (508) 746-1817 Email: bkglegal@gmail.com