2013 WL 3856926 (Mass.App.Ct.)
Page 1
For Dockets See 2013-P-0268
Appeals Court Of Massachusetts.
119 FOSTER STREET, LLC and Safety, Inc., Plaintiffs-Appellees,
v.
RTW REALTY, LLC, Defendant-Appellant.
No. 2013-P-0268.
July 18, 2013.
On Appeal from a Judgment of the Essex Superior
Court
Re: Essex Superior Court C.A. No. 2009-01179
Brief for 119 Foster Street, LLC and Safety, Inc.
Plaintiffs-Appellees
John R. Keilty, Esq., BBO # 264360, 40 Lowell Street,
Peabody, Massachusetts 01960, Telephone: 978.531.
7900, e-mail: [email protected]
A. The fair preponderance of the evidence produced
at trial supported the Judge's findings that the defendant' s paving caused the flooding of the plaintiffs'
property ... 16
B. The timeline of events did not conflict with the
Judge's finding that the defendant caused the flooding
of the plaintiffs property ... 27
II. The Superior Court did not misapply the “reasonable use” standard in the private nuisance context;
and even if it did, the identical result reached by the
Court was available under the plaintiffs' trespass cause
of action, to which “reasonable use” was no defense ...
30
III. The Superior Court did not abuse its discretion in
ordering the defendant to fix the nuisance in an exact
manner: through the construction of a “French drain”
... 38
TABLE OF CONTENTS
Table of Authorities ... iii
Statement of the Issues ... 1
Statement of the Case ... 1
Statement of the Facts ... 2
Summary of the Argument ... 14
A. The Judge's conclusion that implementation of a
“French drain” is an appropriate means to abate the
nuisance, and ordering this specific solution, was
supported by the evidence, was not arbitrary or capricious, and did not constitute an abuse of discretion ...
38
B. The defendant's argument that the Judge's order of
specific equitable relief causes more harm to the defendant than is necessary to provide relief to the
plaintiff, and is therefore an abuse of discretion, is
unsupported by the evidence ... 46
Argument ... 16
Conclusion ... 50
I. The Superior Court's finding that the defendant
caused flooding at issue by paving the area in question
was ample he supported by the evidence ... 16
Certification Under Mass.R.App.P. 16(K) ... 51
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2013 WL 3856926 (Mass.App.Ct.)
Page 2
Certificate of Service ... 52
... 38
Addendum to Brief ... v
O'Connor v. Slachetka, 237 Mass. 228 (1921) ... 38
Memorandum of Decision
Robbins v. City of Worcester, Worcester Superior
Court C.A. No 080745D (October 22, 2010) (Tucker,
J.) (unpublished decision): ... 37
Judgment on Finding of the Court
Robinson v. C,O.B., 71 Mass.App.Ct. 765 (2008) : ...
48
Mass.R.Civ.P. 60(b)
Mass.R.App.P. 3(c) & 16(a)
TABLE OF AUTHORITIES
Siles v. Travenol Laboratories, Inc., 13 Mass.App.Ct.
354 (1982) : ... 48
Judicial Decisions
S. Volpe & Co. v. Board of Appeals of Wareham, 4
Mass.App.Ct. 357 (1976): ... 22-23
Aguilar v. Hernandez-Mendez, 66 Mass.App.Ct. 367
(2006) : ... 25-26
Court Rules
Attorney General v. Dime Savings Bank, 413 Mass.
284 (1992): 3 ... 8
Mass.R.App. P. 3(c) : ... 48
Mass.R.App. P. 16(a) : ... 48
Bourne v. Haverhill Golf & Country Club, Inc., 58
Mass.App.Ct. 306(2003): ... 39
Commonwealth v. Smiley, 431 Mass. 477 (2000) : ...
25
DeSanctis v. Lynn Water and Sewer Commission, 423
Mass. 112 (1996) : ... 31-34, 36
Mass.R.Civ.P. 60(b) : ... 42, 43, 46, 48, 49
Other Authority
J. Nolan, Equitable Remedies, M.P.S. Vol. 31, Sec.
416: ... 38
*1 STATEMENT OF THE ISSUES
Fenton v. Quaboag Country Club, Inc., 353 Mass. 534
(1968) : ... 38
In Re: Olga, 57 Mass.App.Ct. 821 (2003) : ... 22
Lynch v. Union Institution for Sav., 159 Mass. 306
(1893): ... 38
Metropoulos v. MacPherson, 241 Mass. 496 (1922) :
I. Was the Superior Court's finding that the defendant
caused flooding at issue by paving the area in question
supported by a fair preponderance of the evidence in
the record?
II. Did the Superior Court misapply Massachusetts'
“reasonable use” doctrine in the private nuisance
context?
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2013 WL 3856926 (Mass.App.Ct.)
III. Did the Superior Court abuse its discretion or
otherwise err in ordering that the defendant abate the
nuisance in a specific and precise manner, to wit: by
installing a “French drain”?
STATEMENT OF THE CASE
This appeal is from a judgment for the plaintiffs in an
action to restrain a nuisance and a trespass to land, and
for damages and other relief. This matter was tried to
the Essex Superior Court (Richard E. Welch, J.), sitting *2 without a jury, on March 26, 27 and 28 of
2012. Judgment entered on April 10, 2012 and this
appeal followed in timely fashion.[FN1]
FN1. The defendant filed a counterclaim,
which was dismissed by the Court in its
judgment. This counterclaim is not at issue in
this appeal.
STATEMENT OF THE FACTS
Following are the material facts found by the Court
below. The specific factual controversies that underlay this appeal are discussed in the Argument, infra.
Page 3
property line. On the south side of the building, the
side that is the focus of this dispute, Kunz paved
slightly beyond the property line.[FN3]
FN2. In his Decision Judge Welch references
the subject property simply as 119 Foster
Street, but in fact that address contains several buildings, one of which was purchased
by the plaintiffs.
FN3. Memorandum of Decision at 1-2, Appendix 103-104.
Near the southwest corner of the building there exists
a catch basin which is at a lower elevation than the
pavement. This catch basin may or may not be on the
property of 119 Foster Street. However, this catch
basin is definitely in a right of way area which is
shared by 119 Foster Street and its neighboring properties, *4 including that of the defendant. This catch
basin connects with a storm drain and various other
catch basins that run through various properties in this
old industrial area.[FN4]
FN4. Memorandum of Decision at 2, Appendix 104.
Flooding Prior to the Defendant's Paving.
The Subject Property.
The plaintiffs' industrial property, located at 119
Foster Street, Building 6, in Peabody[FN2], is a renovated industrial building dating back to the late 19th
century. At one point, the plaintiffs' building and the
surrounding structures were all part of one industrial
complex owned by a single *3 owner. Over time, the
various buildings were sold off to separate owners. In
2002, John Kunz purchased 119 Foster Street and
renovated the building. At that time it was in a state of
significant disrepair. The renovations performed by
Kunz included repaving a formally paved area that
immediately surrounded the building. This paved area
extended from three sides of the building out to the
Kunz installed the paving in the latter part of 2002.
Soon after Kunz moved his street cleaning company
into the building, there was one instance of flooding
on the first floor of the building resulting from rainwater coming down the grade and into the loading
doors on the south side of 119 Foster Street. This
flooding was extensive. It extended thirty (30') to forty
(40') feet into the building at the deepest point was two
(2“) inches deep. Once this occurred, Kunz and his
foreman (Richard Dube) decided to clean the catch
basin on the southwest corner of the building. In addition to owning a street cleaning company, Kunz *5
specialized in cleaning municipal storm drains. Under
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2013 WL 3856926 (Mass.App.Ct.)
the supervision of Richard Dube, Kunz had the
southwest corner catch basin and part of the storm
drain cleaned. Dube also cleaned the two downstream
catch basins (part of the same storm drain) that surrounded 119 Foster Street. After this cleaning was
performed on the three catch basins, “ninety (90%) to
ninety-five (95%)” of the water problem was resolved
at 119 Foster Street. In other words, during the Kunz
ownership period (after the initial flooding) rain water
infiltration was never a significant problem at 119
Foster Street. There admittedly did remain a “slight
problem” with rainwater infiltration onto the first
floor, but it was not a significant problem. It is clear
that there was no extensive flooding caused by rainwater running downhill and into the 119 *6 Foster
Street property once Kunz cleaned the storm
drains.[FN5]
FN5. Memorandum of Decision at 2-3, Appendix 104-105.
119 Foster Street sits at a lower elevation than the
surrounding property to the south. Washington Street
in Peabody, and a bakery which abuts Washington
Street, sit above the property. When it rains, water
flows down the hillside from Washington Street toward 119 Foster Street. The flow of rainwater comes
approximately down the right-of-way from Washington Street and then flows southwesterly towards
Goldhwaithe Brook and the aforementioned catch
basin. While Kunz owned the property from 2003 to
2004, the areas surrounding 119 Foster Street were not
paved (other than the paving that he himself had performed). Some areas, such as the land to the western
side of the building and the land to the eastern side of
the building, had been previously paid, but now consisted of dirt, *7 potholes and broken up asphalt. Other
areas, including the property to the southerly side of
the building, were mostly gravel.[FN6]
FN6. Memorandum of Decision at 3-4, Appendix 105-106
Page 4
Kunz testified that there existed a natural swale
through this gravel area allowing rain water to run
down to Goldhwaithe Brook. Due to the swale, only a
small portion of rainwater off the site of 119 Foster
Street would run into the catch basin at the southwest
corner during the time Kunz owned the property. Once
the storm drain was clean, the storm drain handle any
water flow that came to it.[FN7]
FN7. Memorandum of Decision at 4, Appendix 106.
The Court found that “it is rather clear why Mr. Kunz
did not have any flooding problems from rainwater.”
First, a natural swale directed most of the downhill
rainwater towards the brook. Second, the gravel on the
south side of the *8 property absorbs a fair amount of
the rainwater. And third, the long established catch
basin on the southwest corner of the building, once
adequately clean, was capable of handling any of the
water that did arrive at that point.[FN8]
FN8. Memorandum of Decision at 4, Appendix 106.
The Plaintiffs Arrive on the Subject Property.
Joel Myerson is the President of both of the corporate
plaintiffs, 119 Foster Street, LLC and Safety, Inc. In
2003, Myerson and his brother became interested in
purchasing 119 Foster Street from Mr. Kunz. They
looked at the property on several occasions and never
saw any flooding problems. The broker who eventually arrange the sale of the property, Rebecca Kilborn,
also never saw a rainwater entering the building. A
purchase and sale agreement was executed by and
between Myerson and Kunz in 2003 after the property
had been renovated.[FN9]
FN9. Memorandum of Decision at 4-5, Appendix 106-107.
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2013 WL 3856926 (Mass.App.Ct.)
Page 5
asphalt paving previously done by Kunz.[FN12]
*9 The Defendant Paves Its Property and Creates a
Nuisance and a Trespass.
The defendant, RTW Realty, LLC, owns the property
on the south side of the plaintiffs' property. In July
2003, the (defendant[FN10]) became interested in paving portions of its property, including that which lay to
the southerly side of the plaintiffs' building and which
was covered with gravel. The defendant received a
pavement proposal on June 6, 2003. Kunz heard about
this proposal and discussed this with Myerson. This
discussion occurred sometime in late 2003, while 119
Foster Street (Building 6) was under the purchase and
sale agreement. Kunz advised Myerson to “fight” any
paving of the area south of 119 Foster Street because
he thought that it could lead to flooding of the *10
building. Myerson then purchased the property around
April 20, 2004.[FN11]
FN10. The word is “plaintiff” in the Memorandum of Decision; however, the context
makes clear that this is an error.
FN11. Memorandum of Decision at 5, Appendix 107.
The defendant's paving was performed by M & R
Trucking and Paving, a company owned by Michael
Wood. Wood paved the southern area and also other
portions of the defendant's property. Before this paving was performed, neither the defendant, nor Wood,
consulted with any type of engineer or even considered the drainage problems that might be caused by
the paving. In paving the area, Wood graded the entire
gravel area on the south side of 119 Foster Street and
inadvertently changed the swale that had previously
direct the runoff toward the brook. In addition, Wood
placed a binder and then a top coating of asphalt over
the entire area previously covered by the gravel. To do
this, he had to raise the grade of the area by three (3”)
*11 inches in order to have a “feather in” with the
FN12. Memorandum of Decision at 5-6,
Appendix 107-108.
“The result of this paving was rather disastrous for Mr.
Myerson and his companies.”[FN13] After this paving
was performed, the plaintiffs' property at 119 Foster
Street began to flood regularly from rainwater coming
down the incline in a greater quantity and at a greater
velocity. This flooding, which began in at least 2005,
was quite significant. The entire first floor of the
plaintiffs' building would be covered with rain water
that exceeded a depth of two (2”) inches. This was
much more extensive flooding than Kunz had ever
experienced during his two-year ownership of the
property -- all of which was during the period before
the defendant paved its adjoining property.[FN14]
FN13. Memorandum of Decision at 6, Appendix 108.
FN14. Memorandum of Decision at 6, Appendix 108.
*12 When confronted with this flooding, the plaintiffs
arranged to have the southwest catch basin cleaned
out, but this did not solve the problem. Instead, the
flooding continued and the catch basin could not
handle the increased flow that resulted from the defendant's paving. The plaintiffs purchased pumps to
place in the catch basin to try to supplement the
draining capacity. This worked to a certain extent but
whenever a pump would fail or the electricity was lost,
significant flooding would occur within the plaintiffs'
building.[FN15]
FN15. Memorandum of Decision at 6-7,
Appendix 108-109.
Although the defendant argued that this flooding was
typically a result of the plaintiffs' not adequately
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2013 WL 3856926 (Mass.App.Ct.)
cleaning out the catch basin, the Court did not find that
this argument was persuasive. Per contra: “(f) rom
the evidence is rather clear that the significant flooding *13 experienced by the plaintiffs was caused by
the defendant's paving”:
The causes were threefold. First, by covering up all of
the gravel that previously existed in the path of the
rainwater coming down from Washington Street, the
(defendant[FN16]) significantly reduced the capacity of
the ground to (absorb[FN17]) the rainwater. Some of this
paving was completely unnecessary. For example, a
significant gravel area was paved over even though it
was not within the right-of-way required for trucks
and other vehicles to access the property. Had this area
not been paved, but allowed to remain in a graveled
state, many of the plaintiffs' flooding problems would
have been averted. Second, the paver's regrading of
the property eliminated the natural swale that had
previously existed. Although this swale is not definitively shown on any of the maps presented during trial
(the maps are a very limited utility and, in all likelihood, based on in accurate or incomplete information), I accept John Kunz' testimony regarding the
swale. By eliminating the swale the rainwater was not
being directed to the brook but instead to the catch
basin which was quickly overloaded. The third reason
for the problem was that the defendant's paver eliminated the three inch elevation differential between the
plaintiffs property *14 and the defendants property.
The paver did this by laying sufficient asphalt to raise
the level of the defendants property by three inches in
order to “feather in” the defendant's asphalt with the
plaintiffs' asphalt. If there had been no drainage issues,
this would have been a perfectly reasonable method of
pavement. But there were drainage issues and they
were never considered by the defendant. This conduct
constituted both negligence and an unreasonable use
of the defendant's land.[FN18]
FN16. Again, the word in the decision is
“plaintiff” but the context “dictates “defendant.”
Page 6
FN17. The word in the decision is “observe”
but this word obviously makes no sense; the
context clearly indicates that Judge Welch
meant “absorb.”
FN18. Memorandum of Decision at 7-8,
Appendix 109-110.
SUMMARY OF THE ARGUMENT
I. The Superior Court's finding that the defendant
caused flooding at issue by paving the area in question
was ample he supported by the evidence. (PP. 16-30)
A. The fair preponderance of the evidence produced at
trial supported the Judge's findings that the defendant's
paving caused the flooding of the plaintiffs' property.
(PP. 16-26)
B. The timeline of events did not conflict with the
Judge's finding that the defendant caused *15 the
flooding of the plaintiffs property. (PP. 27-30)
II. The Superior Court did not misapply the “reasonable use” standard in the private nuisance context; and
even if it did, the identical result reached by the Court
was available under the plaintiffs' trespass cause of
action, to which “reasonable use” was no defense. (PP.
30-38)
III. The Superior Court did not abuse its discretion in
ordering the defendant to fix the nuisance in an exact
manner: through the construction of a “French drain.”
(PP. 38-50)
A. The Judge's conclusion that implementation of a
“French drain” is an appropriate means to abate the
nuisance, and ordering this specific solution, was
supported by the evidence, was not arbitrary or capricious, and did not constitute an abuse of discretion.
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2013 WL 3856926 (Mass.App.Ct.)
Page 7
(PP. 38-45)
FN20. Brief of Defendant-Appellant at 6.
*16 B. The defendant's argument that the Judge's order
of specific equitable relief causes more harm to the
defendant than is necessary to provide relief to the
plaintiff, and is therefore an abuse of discretion, is
unsupported by the evidence. (PP. 46-50)
ARGUMENT
I. The Superior Court's finding that the defendant
caused flooding at issue by paving the area in question
was amply supported by the evidence.
A. The evidence produced at trial supported Judge
Welch's findings.
The defendant's argument to the contrary consists of
two elements: (1) the evidence in the record does not
support the plaintiffs' contention that, prior to the
defendant's paving, there was a three (3“) inch “lip“
caused by an elevation differential between the plaintiffs' property and the defendant's property, which
created a natural conduit of *17 rain water away from
the defendant's building; and (2) that a preponderance
of the evidence showed that the flooding was generated by causes unrelated to the defendant's paving.
Neither argument has any merit.
(1) The defendant alleges that “testimony from both
sides”[FN19] shows that, prior to the defendant's paving,
there was no three (3“) inch “lip“ caused by an elevation differential between the plaintiffs property and
the defendants property, which created a natural
conduit of rain water away from the defendant's
building. In support of this allegation the defendant
cites to the following pages of the Trial Transcript:
70-71, 82-88, 139, 360.[FN20] However, the cited testimony does not, for the most part, support the defendant's contention:
FN19. Brief of Defendant-Appellant at 6.
*18 Item: Pages 70-71[FN21] record a portion of defense counsel's cross-examination of Scott Cameron,
the plaintiffs' engineering expert. Nowhere on those
pages does engineer Cameron deny the existence of
the three (3“) “lip,” despite counsel's best efforts in
that direction.
FN21. March 26, 2012 Transcript at 70-71.
Item: Pages 82-88[FN22] record another portion of
defense counsel's cross-examination of engineer
Cameron. And once again, nowhere on those pages
does engineer Cameron deny the existence of the three
(3“) “lip“; indeed, at one point, he states “I've seen
evidence that there was a lip there.”[FN23]
FN22. March 26, 2012 Transcript at 82-88.
FN23. March 26, 2012 Transcript at 83.
Item: Page 139[FN24] records a portion of defense
counsel's cross-examination of Joel Myerson. Here,
Myerson testifies that “(t)here was a *19 three inch
berm and there was a gravel and dirt absorbing water...”
FN24. March 26, 2012 Transcript at 139.
Item: Page 360[FN25] records a portion of defense
counsel's direct examination of Mike Wood, the individual who performed the paving work for the defendant. This is the only testimony that supports the
defendant's argument, and standing by itself it hardly
constitutes the “preponderance of the evidence,” especially in light of Joel Myerson's additional testimony that there was a “lip.”[FN26] Moreover, on
cross-examination, Wood was impeached by his prior
deposition testimony, in which he admitted that there
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2013 WL 3856926 (Mass.App.Ct.)
was a three (3”) inch “lip” and a resulting grade differential.[FN27]
FN25. March 28, 2012 Transcript at 33.
FN26. March 28 2012 Transcript at 34.
FN27. Mach 28, 2012 Transcript at 53-56.
Mike Wood further testified on cross that
when he performed the paving work for the
defendant, he changed the grade of the
property, and added three inches of asphalt to
the entire area that he paved. Id., at 57-60.
*20 The defendant also argues that there is a fatal
inconsistency in Judge Welch's findings (1) that the
pre-existing pavement on the plaintiffs' property was
feathered down to meet the gravel on the defendant's
property (i.e., there was no “lip”), and (2) that the
defendant's paving caused the flooding.[FN28] And it is
unfortunately true that Judge Welch did write that
when Kunz paved the property, “(t)his paving was
approximately three inches thick and feathered down
to the adjoining gravel and dirt lot which abutted 119
Foster Street to the south.”[FN29] Standing by itself, this
finding might present a problem for the plaintiffs.
FN28. Brief for Defendant-Appellant at 6-7.
FN29. Memorandum of Decision at 2, Appendix 104.
Fortunately, however, this finding does not stand by
itself, and Judge Welch made the *21 following, additional findings that clearly support his ultimate
conclusions:
(i)t is rather clear why Mr. Kunz did not have any
flooding problems from rainwater.” First of all, a
natural swale directed most of the downhill rainwater
towards the brook. Second, the gravel (noted in the
engineering reports) on the south side of the property
absorbed a fair amount of the rainwater. Third, the
Page 8
long established catch basin on the southwest corner
of the building, once adequately cleaned, was capable
of handling any of the water that did arrive on
site.[FN30]
FN30. Memorandum of Decision at 4, Appendix 106.
In paving the area, Mr. Wood graded the entire gravel
area on the south side of 119 Foster Street and inadvertently changed the swale that had previously directed runoff towards the brook.[FN31]
FN31. Memorandum of Decision at 6, Appendix 108.
In addition, Mr. Wood placed a binder and then a top
coating of asphalt over the entire area previously
covered by gravel. To do this, he had to raise the
grade of the area by three inches in order to have it
“feather in” (with) *22 the asphalt paving previously done by Mr. Kunz.[FN32]
FN32. Memorandum of Decision at 6, Appendix 108 (emphasis added). The emphasized passage constitutes, among other
things, an implicit recognition that prior to
Mr. Wood's paving, there was, indeed, a
three (3”) inch differential between the defendant's property and the plaintiff's property.
Also see: Memorandum of Decision at 7-8, Appendix
109-110, quoted hereinabove at 13-14.
It follows that Judge Welch's one “rogue” finding,
singled out by the defendant, constitutes harmless
error and does not undermine the integrity of the Decision. See: In Re: Olga, 57 Mass.App.Ct. 821,
824-832 (2003) (two “clearly erroneous” findings by
the Trial Judge did not require reversal where the
decision was supported by other, correct findings);
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2013 WL 3856926 (Mass.App.Ct.)
also see: S. Volpe & Co. v. Board of Appeals of
Wareham, 4 Mass.App.Ct. 357, 358-359 (1976)
(Court would not consider allegedly *23 erroneous
findings where Trial Judge's decision was adequately
supported by other findings).
Finally, the defendant argues that Judge Welch's one
“rogue” finding fatally undermines the causation
opinion given by the plaintiffs' engineering expert, for
the reason that the opinion is premised upon the
pre-existence of the three (3”) inch “lip.”[FN33] But per
contra: as we have just seen, Judge Welch made contrary findings in his Memorandum of Decision at 6,
Appendix 108, and at 7-8, Appendix 109-110, which
entirely negate the one, contrary finding singled out by
the defendant.
Page 9
pendix 105.
FN37. March 27, 2012 Transcript at 53-54,
57-58, 75.
Item: next, the defendant argues that the fact that
Kunz installed a catch basin (among other work that
he performed on the property) demonstrates that in
fact he had a flooding property at 119 Foster Street,
notwithstanding *25 his testimony to the contrary.[FN38] But this argument completely overlooks the
fact that, as Judge Welch found,[FN39] there was a
flooding problem at the property before Kunz performed the remedial work (but not afterward).[FN40]
FN38. Brief of Defendant-Appellant at 11.
FN33. Brief of Defendant-Appellant at 7-9.
(2) The defendant argues that a preponderance of the
evidence showed that the flooding was generated by
causes unrelated to the defendant's paving.[FN34] But
this contention is meritless:
FN34. Brief of Defendant-Appellant at
10-13.
*24 Item: the defendant states that the property “(i)s
at the bottom of a hill below an area that is infamous
for extremely heavy flooding during rain storms.”[FN35]
But the referenced pages, Appendix 105-106 (which
are pages 3-4 of Judge Welch's Memorandum of Decision) in fact contain Judge Welch's finding that
“during the Kunz ownership period (after the initial
flooding) rainwater infiltration was never a significant
problem at 119 Foster Street.”[FN36] And this finding is
entirely consistent with Kunz' testimony.[FN37]
FN35. Brief of Defendant-Appellant at
10-11.
FN36. Memorandum of Decision at 3, Ap-
FN39. Memorandum of Decision at 2-3,
Appendix 104-105.
FN40. See especially the testimony of Richard Dube, Kunz' foreman, in the March 27,
2012 Transcript, at 102-110. This testimony
-- by a defense witness! -dramatically describes the differences in the flooding preand post-installation and cleaning of the
catch basins and other work on the property.
Item: the defendant points out that Mike Wood, the
individual who performed the paving work for the
defendant, testified that he observed flooding on the
property “numerous times” during the period that
Kunz owned it.[FN41] But it is clear that Judge Welch
did not credit this testimony -- as was his privilege.
Commonwealth v. Smiley, 431 Mass. 477, 481
(2000); *26Aguilar v. Hernandez- Mendez, 66
Mass.App.Ct. 367, 368 fns. 2 and 3 (2006).
FN41. Brief of Defendant-Appellant at 12
Item: finally, the defendant argues that “(e)vidence
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2013 WL 3856926 (Mass.App.Ct.)
also supported the notion that the plaintiffs' drains and
pipes were not properly maintained, which contributed to the flooding.”[FN42] But per contra: there was
no evidence whatsoever that the plaintiffs' drains and
pipes were not properly maintained, which contributed to the flooding. A close reading of the defendant's
argument and the source material cited therein reveals
that the argument consists of nothing more than
speculation and surmise. It is a fact that no witness -lay or expert, plaintiffs' or defendant's testified that the
flooding was caused, in whole or in part, by improper
functioning of the plaintiffs' drains.
FN42. Brief of Defendant-Appellant at 12.
*27 B. The timeline of events did not conflict with
Judge Welch's findings.
Page 10
dence (Appendix 59) is dated 5/21/04 and
indicates that some work was performed on
5/18/04, we have no way of knowing whether
or not this was the paving work at issue
herein. See: March 26, 2012 Transcript at
118 (testimony of Joel Myerson). If the
paving occurred in 2005, then the flooding
began to occur almost immediately thereafter.
The defendant further argues that
(t)he plaintiff spent less than one month on the property before pavement occurred. That is hardly enough
time to know the flooding situation prior to paving.
Mr. Myerson could not have known whether the
paving caused a difference in water flow or not.[FN46]
FN46. Brief of Defendant-Appellant at 10.
The defendant argues that Judge Welch's finding that
the paving, occurred in May of 2004 conflicts with his
finding that the paving caused the flooding, which first
manifested itself in 2005.[FN43] But per contra: the fact
that some period of time[FN44] -- may have elapsed
between the paving and the first manifestation of the
flooding[FN45] in no way impeaches the Judge' s finding
of causation. There was no evidence that during this
particular period of time *28 sufficiently intense
rainstorms occurred which ought to have caused earlier flooding.
FN43. Brief of Defendant-Appellant at 9-10.
FN44. Brief of Defendant-Appellant at 10.
FN45. Actually, Judge Welch found that the
flooding “began in at least 2005”; Memorandum of Decision at 6, Appendix 108
(emphasis added). Joel Myerson's testimony
would have warranted a finding that in fact
the paving did not occur until July of 2005.
March 26, 2012 Transcript at 46-47, 117.
While the paving invoice admitted into evi-
But per contra: the evidence shows that Joel Myerson performed extensive “due diligence” regarding
the flooding issue before purchasing 119 Foster Street:
Item: he was already generally familiar with the
flooding problems in downtown Peabody.[FN47]
FN47. March 26, 2012 Transcript at 20-22.
Item: he first looked at the property some time in mid
to late 2003.[FN48]
FN48. March 26, 2012 Transcript at 19.
*29 Item: he made it a point to view the property “a
few times during rain storms.”[FN49]
FN49. March 26, 2012 Transcript at 20.
Item: he asked the building manager specifically
about flooding.[FN50]
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2013 WL 3856926 (Mass.App.Ct.)
FN50. March 26, 2012 Transcript at 22.
In addition, Rebecca Kilborn, the real estate broker
who sold the property for Kunz to Myerson and his
brother, testified that there was no flooding of the
property of which she was aware, and that she made
no disclosure to Myerson regarding flooding.[FN51] Ms.
Kilborn was quite familiar with the subject property
by virtue of the fact that, in addition to brokering its
sale, she performed bookkeeping and management
services for Kunz “from 2002 to 2004 on that property,” and had occasion to visit the property repeatedly.[FN52]
FN51. March 27, 2012 Transcript at 92-93,
96.
FN52. March 27, 2012 Transcript at 92-93,
94.
*30 Withal, the defendant's argument that the timeline
conflicts with Judge Welch' s findings is meritless.
II. The Superior Court did not misapply the
“reasonable use” standard in the private nuisance
context; and even if it did, the identical result
reached by the Court was available under the
plaintiffs' trespass cause of action, to which “reasonable use” was no defense.
Judge Welch wrote:
The defendant's paving of its property certainly was
not an “unreasonable” use of its property. The method
by which the defendant paved this property, however,
was unreasonable. Given the low elevation of these
properties, any reasonable landowner should have
given some consideration to the drainage effects of
paving over large portions of gravel. Had the defendant maintained the existing swale and, perhaps,
left some of the gravel for water absorption, the
flooding, in all likelihood, never would have occurred.
The defendant's actions increased the velocity and the
Page 11
direction of the surface water in an unreasonable
fashion.... Thus, the defendant's actions in the method
of payment created a nuisance and constituted a continuing trespass.[FN53]
FN53. Memorandum of Decision at 8, Appendix 110.
*31 The defendant would have us believe that once
Judge Welch found that paving, itself, was a reasonable use of the defendant's property, then any finding
for the plaintiffs on their nuisance acton was foreclosed as a matter of law entirely regardless of how
negligently or recklessly the paving was performed,
how draconian the consequences to the plaintiffs'
neighboring property, or the fact that other, better and
safer methods of accomplishing the paving were
available to the defendant that would not have inflicted injury upon the plaintiffs. No judicial decision
-- including those cited by the defendant -- stands for
so draconian and unreasonable a proposition.
The parties and Judge Welch all agree that the principal governing authority here is DeSanctis v. Lynn
Water and Sewer Commission, 423 Mass. 112 (1996).
DeSantis explained the “reasonable use” doctrine as
follows:
*32 In Massachusetts, liability for a private nuisance
caused by the flow of surface waters from a landowner's property to that of an adjoining landowner
depends on whether the landowner is making a reasonable use of his land. See Tucker v. Badoian, 376
Mass. 907, 916-917 (1978) (Kaplan, J., concurring)
(announcing intention to replace rigid and anarchic
“common enemy” rule with reasonable use doctrine).
See also von Henneberg v. Generazio, 403 Mass. 519,
522 (1988) (recognizing that since Tucker, supra,
reasonable use doctrine is law of Massachusetts with
regard to claims of private nuisance resulting from the
flow of surface water); Triangle Ctr., Inc. v. Department of Pub. Works, 386 Mass. 858, 863 (1982) (applying reasonable use doctrine to public landowners).
Under the reasonable use doctrine, “each possessor is
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2013 WL 3856926 (Mass.App.Ct.)
legally privileged to make a reasonable use of his land,
even though the flow of surface waters is altered
thereby and causes some harm to others, but incurs
liability when his harmful interference with the flow
of surface waters is unreasonable.” Armstrong v.
Francis Corp., 20 N.J. 320, 327 (1956). Reasonableness is a question of fact for the jurors whose
decision is based on consideration of all the relevant circumstances including the amount of harm
caused, the foreseeability of the harm which results, the purpose or motive with which the possessor acted, and all other relevant matter. Tucker,
supra at 917-918 n. 2. The jurors also must consider whether the utility of the possessor' use of his
land outweighs the gravity of the harm which results from his *33 alteration of the flow of surface
waters. Armstrong, supra at 330. See Tucker, supra.
Contrary to the plaintiff's contention, a determination
by the jurors that LWSC negligently caused water to
flow onto the plaintiff's land and adversely change or
otherwise damage the plaintiff's land is not sufficient
to support liability for a private nuisance. The cases
cited by the plaintiff do not support his contention that
the negligent diversion of surface water is per se a
private nuisance because each, unlike this case, involved a finding that the defendant landowner was
making an unreasonable use of his land. See, e.g., von
Henneberg v. Generazio, supra; Triangle Ctr., Inc. v.
Department of Pub. Works, supra; Schleissner v.
Provincetown, 27 Mass. App. Ct. 392 (1989). A determination of unreasonable use is essential to the
successful maintenance of a private nuisance claim for
diversion of surface waters. Negligence, while relevant to the reasonableness of LWSC use of its land,
is not determinative of the existence of a private nuisance. See Butler v. Bruno, 115 R. 264, 273 (1975)
(“The New Hampshire rule of reasonable use does not
rest on negligence, nor does it focus solely on the
character of the property owner action. Instead, it
focuses on the results of the action, the consequent
interference with another use and enjoyment of his
land - much like the nuisance branch of tort law”).
Page 12
“Under the Tucker standard, the fact finder must
view the landowners activity on his land with an
eye toward the effect of that activity on the flow of
surface waters. von enneberg, supra at 523. If a
landowner fails to control the flow of surface waters
but on a consideration of *34 all relevant factors his
actions are reasonable, an action for private nuisance
will not lie. “Regardless of the category into which the
defendant's actions fall [intentional and unreasonable
or negligent, reckless, or abnormally dangerous], the
reasonable use rule explicitly, as in the case of intentional acts, or implicitly, as in the case of negligent
acts, requires a finding that the conduct of the defendant was unreasonable. This is the essential inquiry
in any nuisance action.” Pendergrast v. Aiken, 293
N.C. 201, 217 (1977).
(Emphasis added.)
Thus, in determining the question of whether or not
the defendant's paving was a “reasonable use” of its
property, the adverse consequences of the paving to
the adjoining property of the plaintiffs is a key element. While paving, per se, may not be unreasonable,
paving which causes disproportionate harm to the
plaintiffs' property is unreasonable.
Moreover, negligence on the part of the defendant -while not solely determinative -is also relevant to a
determination of *35 unreasonableness. Where the
defendant at bar, despite having reason to know that
the paving of its own property threatened to inundate
the plaintiffs' neighboring property with substantial
water runoff, nonetheless went ahead and paved its
property without having first prepared a plan, and/or
taken other precautions, to safeguard against such
runoff, the defendant was negligent.
Thus, at bar, we have both: (1) the defendant's negligent conduct, and (2) resulting disproportionate harm
to the plaintiffs; these factors preclude a finding that
the defendant's paving was a “reasonable use” of its
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2013 WL 3856926 (Mass.App.Ct.)
property; hence, the defendant is liable to the plaintiffs
in both trespass and nuisance, and Judge Welch correctly so ruled.
Moreover, even if, purely arguendo, we were toconcede that Judge Welch did misapply the *36
“reasonable use” doctrine in the private negligence
context, the identical result reached by the Court was
available under the plaintiffs' trespass cause of action,
to which “reasonable use” was no defense.
DeSanctis v. Lynn Water and Sewer Commission, 423
Mass. 112, 118 (1996), noted that:
The jurors' failure to find unreasonable use while
precluding recovery under a private nuisance
theory does not preclude the plaintiff's recovery
under an independent cause of action for negligent
trespass. See Tarzia v. Hingham, 35 Mass. App. Ct.
506, 508-510 (1993) (distinguishing negligence and
private nuisance). A plaintiff may recover under the
theory of negligent trespass if the jurors determine that
the defendant was negligent and that the defendant's
negligent entry onto the plaintiff's land caused the
plaintiff harm. See Restatement Second of Torts § 165
(1965); Cannon v. Sears, Roebuck & Co., 374 Mass.
739, 742 (1978) (“A cause of action based on negligence requires that both negligence and harm be
shown, with a causal connection between these two
elements”). Absent comparative negligence on the
part of the plaintiff, he would be entitled, given the
jurors' findings of negligence and causation, to recovery under the theory of negligent trespass.
*37 (Emphasis added.)
Accord: Robbins v. City of Worcester, Worcester
Superior Court C.A. No 080745D (October 22, 2010)
(Tucker, J.) (unpublished decision):
Although there is no trespass liability for unintentional, non-negligent acts, see Edgarton v. H.P.
Welch, 321 Mass. 603, 612 (1947), “(a) plaintiff
may recover under the theory of negligent trespass
Page 13
if the jurors determine that the defendant was
negligent and that the defendant's negligent entry
onto the plaintiff's land caused the plaintiff harm.”
DeSanctis v. Lynn Water & Sewer Comm‘n, 423
Mass. 112, 118 (1996), citing Restatement (Second) of
Torts § 165 (1965). Accordingly, the Robbinses may
proceed under the negligence trespass theory.
(Emphasis added.)
Thus, even if we were to concede that the method by
which the defendant paved its property constituted a
“reasonable use” precluding a nuisance judgment, if
the defendant did so in a negligent manner that
proximately caused the discharge of water onto the
plaintiffs' land, then the defendant would be liable to
the *38 plaintiffs for negligent trespass, and the same
equitable relief would have been appropriate.[FN54]
FN54. As a matter of black-letter law, equity
will restrain a trespass. Attorney General v.
Dime Savings Bank, 413 Mass. 284, 289-290
(1992); Fenton v. Quaboag Country Club,
Inc., 353 Mass. 534, 538 (1968). A plaintiff
is entitled to protect his or her right to possession even if a trespass has caused him or
her no harm. Metropoulos v. MacPherson,
241 Mass. 496, 503-04 (1922).
If the defendant's act constitutes a continuing
trespass, the plaintiff is entitled to equitable
relief as well as to money damages. O'Connor v. Slachetka, 237 Mass. 228, 230 (1921).
Neither the fact of minimal damage to the
plaintiff, nor the innocence and good faith of
the defendant may be a defense to injunctive
relief for its removal. Lynch v. Union Institution for Sav., 159 Mass. 306, 308-309
(1893). The availability of money damages
does not thereby deprive the plaintiff of the
right to injunctive relief if damages are not an
adequate form of redress or if an injunction is
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2013 WL 3856926 (Mass.App.Ct.)
the only practical option in avoiding a multiplicity of action. See J. Nolan, Equitable
Remedies, M.P.S. Vol. 31, Sec. 416.
III. The Superior Court did not abuse its discretion
in ordering the defendant to fix the nuisance in an
exact manner: through the construction of a
“French drain.”
A. Judge Welch's injunction was supported by the
evidence, was not arbitrary or capricious, and did not
constitute an abuse of discretion.
*39 It is too-well established for argument that “(t)he
scope of equitable relief is left to the discretion of the
trial judge ... A court may ‘mould each decree to the
necessities of the particular case ....’ Bourne v.
Haverhill Golf & Country Club, Inc., 58 Mass.App.Ct.
306, 323-324(2003). At bar, Judge Welch found that:
The plaintiff is also entitled to considerable equitable
relief. The defendant is ordered to correct this nuisance. The plaintiff shall be required to hire a registered professional engineer to come up with a plan
whereby a significant portion of the gravel within the
path flow of the water (approximately near a large tree
that is shown on the maps on the south side of the
plaintiff's property) would be exposed and used to
drain or to absorb a fair amount of the rainwater. That
gravel area would be connected to a swell and a
“french drain” arrangement that would lead the vast
majority of the rainwater coming from Washington
Street in a swale to the brook. This would restore the
situation that existed before the defendant's paving
and yet permit the defendant to use his industrial
property in an effective fashion. In other words, the
right of way would still be pay (albeit with a packed
gravel French drain running through it). This really
seems the most reasonable solution to the problem.[FN55]
FN55. Memorandum of Decision at 10-11;
Appendix 112-113.
Page 14
*40 The Court's Judgment embodied these findings.[FN56] The defendant contends that Judge Welch
abused his (very substantial) discretion by fashioning
this “French drain” remedy for the reason that there
was scant evidentiary support in the trial record.
FN56. Judgment on Finding of the Court at
Appendix 114.
In truth, there was little evidentiary support in the trial
record for any remedy. The case focused almost exclusively on causation and damages. But “little evidence” does not equate to “no evidence”:
Item: Scott Cameron, the plaintiffs' engineering expert, opined, in response to questioning by Judge
Welch, that the proposed solution “conceivably may
work,” but would require an engineering study to
ascertain that.[FN57]
FN57. March 26, 2012 Trial Transcript at 86.
*41 Item: John Kunz, who owned the subject property
prior to conveying it to the plaintiffs, who testified to
his familiarity with the extensive drainage system on
the property,[FN58] and who prior to his retirement had
owned and operated a business which specialized in
drain and catch basin cleaning and clearing for municipalities,[FN59] opined that Judge Welch's proposed
“French drain” - cum - swale solution, with proper
engineering, would work.[FN60]
FN58. March 27, 2012 Trial Transcript at
40-41, 58.
FN59. March 27, 2012 Trial Transcript at
36-37.
FN60. March 27, 2012 Trial Transcript at
60-62.
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2013 WL 3856926 (Mass.App.Ct.)
Item: No witness testified for the defendant that the
proposed solution would not work.
Hence, Judge Welch's Order, requiring the defendant
to hire an engineer to develop a “French drain” - cum swale solution, and then to implement that solution,
was entirely *42 consistent with, and supported by, the
evidence adduced at trial.
In addition, the plaintiffs note that any insufficiency in
the evidentiary support at trial for Judge Welch's injunction was (ironically) remedied by the defendant,
itself, when the defendant filed a Rule 60(b) Motion
for Relief from Judgment. That motion invited Judge
Welch to amend his Judgment by substituting for the
“French drain” an alternate solution proposed by the
defendant's trial expert.[FN61] The plaintiffs then submitted their Opposition to the defendant's motion, and
this was supported by a letter written by the plaintiffs'
engineering expert, signed under the pains and penalties of perjury, criticizing at length the *43 defendant's
proposal and supporting Judge Welch's solution.[FN62]
Armed with this additional evidence, Judge Welch
denied the motion.
FN61. The defendant's Rule 60(b) Motion
appears at A. 117, and its supporting Memorandum appears at A. 118. Annexed to the
memorandum was a letter written by the defendant's engineering expert, criticizing
Judge Welch's solution and proposing an alternative; this letter appears at Appendix 124.
FN62. The plaintiffs' Memorandum in Opposition to the Defendant's Rule 60(b) Motion appears at Appendix 128, and the supporting letter/affidavit appears at Appendix
134. Excerpts therefrom include the following:
Page 15
judgment does not include a “swale”
which is referenced at least twice in the
judgment .... Rather, they have simply illustrated a “French drain” and gravel area
that does not appear to take into consideration any regrading or redirection of stormwater runoff away from the building towards
the brook. In our interpretation of the judgment, the solution should include regrading
the paved area in a manner that recreates the
“swale”... that existed previously in conjunction with promoting stormwater infiltration through the use of gravel areas and
French drains. One option would be to
grade a swale to direct stormwater runoff
towards a “French drain” located along
the edge of the traveled way to avoid impacting traffic within the way. The swale,
more importantly than the French drain, is
critical to ensuring that stormwater is redirected away from your building and towards
the brook. According to the spot elevations
provided in the Eastern Land Survey Plan,
there should be adequate slope between the
building and the brook to achieve this. The
gravel area and French drain, if designed
and constructed properly, should help
mitigate the peak stormwater flows and
velocities through infiltration into the
ground. Lastly, the
(Note continues on next page.)
1. infiltration method does not have to simply
be exposed “gravel”. If the defendant is
concerned about constructability and
maintenance of an open french drain and
gravel area, there are other equivalent solutions such as pervious pavement, grass
swales and permeable pavers among others
that could be implemented to stabilize the
surface over the French drain and gravel area.
1. The defendant's interpretation of the
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2013 WL 3856926 (Mass.App.Ct.)
2. The limit of “berm” as illustrated on Figure “B” by W&S does not extend all the way
to the watershed divide which is illustrated as
a thick, dashed line on the figure. As a result,
it is possible that the berm will only redirect
stormwater within the subcatchment to the
building and not redirect it towards
Goldthwaite Brook as implied. In other
words, unless the berm is extended to the
edge (divide line) of the watershed, it will
only serve to redirect stormwater to the
corner of the building where it will puddle
(pond), top over the berm and continue to
flood the building. Moving it to this extent
would place it within the travelled way which
would impact traffic.
3. The berm concept does not take into
consideration the loss of stormwater infiltration into the ground resulting from
paving over gravel/dirt surfaces. Therefore, there is no reduction in the peak
stormwater flows or velocities from the
paved portion of the site. It is not clear if a
3” to 6” is sufficient to mitigate peak
stormwater flows and velocities without
impeding vehicular access to your building.
4. We are concerned about the effectiveness and durability of a berm in winter
conditions. Factors that could overwhelm or
deteriorate the berm include plows, frost
heaving, snow and ice accumulation and
heavy winter and spring
5. precipitation and snow melt. A regraded
pavement surface in a swale configuration
with a smooth surface (no abrupt 6”
hump), while requiring more effort to
construct, would be a much more viable
solution that would minimize or eliminate
most of the above concerns.
Page 16
6. While it appears that both sides are in
agreement that an application to the
Conservation Commission under the
Wetlands Protection Act and local Wetlands Regulations will be necessary, we
don't agree with the W&S suggestion that
a berm would be easier to permit through
the Conservation Commission than a
“French drain”. Quite simply, there is no
way to predict what the Commission is going
to require for stormwater mitigation within
the riverfront area to the brook because of the
subjectivity that is involved with reviewing
these applications .... One could easily make
a case that the berm concept does not result in
“an improvement to the riverfront area” because it is not reducing impervious (paved)
surfaces and therefore is less desirable than a
“French drain” which would promote infiltration and reduce impervious surface area.
Therefore, in our opinion, any discussion
about this matter is speculative at best and
should not weigh into deciding one solution
over another.
It is our opinion that an engineered solution could be designed that satisfies the
parameters of the judgment to construct a
French drain and gravel area along with a
swale. The swale in particular is a key
component in reconciling the flooding
problems at your property as this is the
most efficient and low maintenance
method of recreating the flow path conditions that existed prior to paving activities.
(Emphasis added.)
*46 B. The defendant's argument that Judge Welch's
order of specific equitable relief causes more harm to
the defendant than is necessary to provide relief to the
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2013 WL 3856926 (Mass.App.Ct.)
plaintiff, and is therefore an abuse of discretion, is
unsupported by the evidence.
Preliminary Objection: The plaintiffs object to this
argument upon the ground that it is in essence, albeit
not in name, an appeal from the Superior Court's denial of the defendant's Rule 60(b) Motion for Relief
from Judgment; yet, nowhere, either in its Notice of
Appeal or in its Brief, does the defendant list the
Court's denial of the Rule 60(b) Motion as an issue on
appeal.
The defendant argues that the specific equitable relief
prescribed by Judge Welch “causes more harm to the
Defendant than is necessary to provide relief to the
Plaintiff.”[FN63] But the defendant is then compelled to
admit that “(t)he trial record contains no evidence as to
the *47 extent of the hardship to the Defendant or
benefit to the Plaintiff”[FN64]
FN63. Brief of Defendant-Appellant at 26.
FN64. Brief of Defendant-Appellant at 26.
The entire basis for the defendant's argument turns out
to be a letter written by Richard Williams, the defendant's expert civil engineer[FN65], purporting to offer
an expert opinion on the feasibility of Judge Welch's
proposed “French drain” solution.[FN66] But this letter
was not a trial exhibit, nor was the opinion expressed therein part of engineer Williams' trial
testimony. Rather, this letter was written in support of the defendant's Rule 60(b) Motion.
FN65. See: March 27, 2012 Trial Transcript
at 111.
FN66. Brief of Defendant-Appellant at
28-29. The letter appears at Appendix 124.
The defendant's Notice of Appeal states, in material
part, that the defendant is appealing “from all eviden-
Page 17
tiary, legal and other rulings and orders made prior to,
during and after both *48 trial and the final judgment
in this action.” Notice of Appeal at A. 115. This is not
a sufficient designation under Mass.R.App.P. 3(c);
see: Siles v. Travenol Laboratories, Inc., 13
Mass.App.Ct. 354, 354 fn. 1 (1982) :
This order was not listed by the plaintiff-appellant as
an issue on the notice of appeal. Accordingly, the
validity of that ruling is not properly before this court
and will not be considered on appeal.
Accord: Robinson v. C.O.B., 71 Mass.App.Ct. 765,
771 (2008).
Nor does the defendant's Rule 60(b) Motion appear in
its statement of “Issues Presented” on p. v of its Appellate Brief, pursuant to Mass.R.App.P. 16(a) (2), or
in its prayer for relief on p. 31 of its Brief, pursuant to
Mass.R.App.P. 16(a) (5).
Therefore, the issue of the propriety of the Superior
Court's dismissal of the defendant's *49 Rule 60(b)
Motion is not properly before this Court for consideration, and the Williams letter must be given no
consideration by this Court.
In the absence of the Williams letter, there is -- as the
defendant concedes -- no evidence in support of the
defendant's argument. Indeed, a glance at the Williams
letter, itself, quickly reveals that it offers no information which supports the defendant's contention that
the equitable relief awarded by Judge Welch “causes
more harm to the Defendant than is necessary to provide relief to the Plaintiff.” It simply disagrees with
the relief awarded.
Moreover, if this Court deigns to consider the Williams letter in support of the defendant's argument,
then the Court must equally consider the letter dated
June 12, 2012, written by Scott P. Cameron, the
plaintiffs' expert engineer,[FN67] *50 submitted in
support of the plaintiffs' Opposition to the defendant's
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2013 WL 3856926 (Mass.App.Ct.)
Rule 60(b) Motion. This letter, at great length, supported Judge Welch's proposed solution and affords an
ample evidentiary basis therefor.[FN68]
FN67. See: March 26, 2012 Trial Transcript
at 49.
FN68. The Cameron letter appears at Appendix 134.
Withal, the defendant's argument that Judge Welch's
order of specific equitable relief constitutes an abuse
of discretion is unsupported by the evidence.
CONCLUSION
WHEREFORE, 119 Foster Street, LLC and Safety,
Inc., the plaintiff-appellees at bar, pray that this Honorable Court will affirm the Ruling of the Superior
Court, deny and dismiss the defendant-appellant's
appeal, and award the appellees their costs under
Mass.R.App.P. 26(a), plus such other and further
relief as may be appropriate.
119 FOSTER STREET, LLC and Safety, Inc., Plaintiffs-Appellees, v. RTW REALTY, LLC, Defendant-Appellant.
2013 WL 3856926 (Mass.App.Ct. ) (Appellate Brief )
END OF DOCUMENT
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119 Foster St v. RTW Realty, Brief for Appellees