COMMONWEALTH OF MASSACHUSETTS
Appeals Court
No. 2013-P-1008
MIDDLESEX, ss
________________________________
SAMUEL WINIKER AND FRANCES WINIKER Appellants
v.
KIMBERLY BELL Appellee
________________________________
ON APPEAL FROM A JUDGMENT OF THE MIDDLESEX SUPERIOR COURT
________________________________
BRIEF OF THE APPELLEE, KIMBERLY BELL
________________________________
Richard D. Vetstein, Esq. BBO # 637681 Vetstein Law Group, P.C. 945 Concord Street Framingham, MA 01701 (508) 620-5352 [email protected]
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TABLE OF CONTENTS
TABLE OF AUTHORITIES iii ISSUES PRESENTED 1 STATEMENT OF THE CASE 1 STATEMENT OF FACTS 3 SUMMARY OF ARGUMENT 15 ARGUMENT 15 I. The Standard Of Review On Appeal 16
II. The Trial Court’s Findings of Fact Were Amply Supported By the Evidence and Not Clearly Erroneous, and Its Rulings Were Correct Under Massachusetts Adverse Possession Jurisprudence 16 A. The Elements of Adverse Possession 20
B. The Trial Court Correctly Found That
The Winikers Failed To Establish The Precise Area Of Adverse Possession. 21
C. The Trial Court’s Finding That The
Winikers Failed To Make Actual Use Of The Disputed Area Was Neither Clearly Erroneous Nor Legally Incorrect 25
D. The Trial Court’s Finding That The
Winikers Failed Prove Exclusive Use Was Neither Clearly Erroneous Nor Legally Incorrect 30
E. The Trial Court Correctly Concluded That
the Winikers Did Not Adversely Possess The Bell Property Continuously For Twenty Years 34
III. The Trial Court Did Not Abuse Its Discretion In Allowing Juan Ortega’s Testimony 37
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IV. The Winikers’ Brief Does Not Rise To The Level Of Acceptable
Appellate Argument. 39 V. This Appeal Is Frivolous 40
CONCLUSION 42 CERTIFICATE OF COMPLIANCE ADDENDUM
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TABLE OF AUTHORITIES
CASES Avery v. Steele, 414 Mass. 450 (1993) ............... 38 Barboza v. McLeod, 447 Mass. 468 (2006) ............. 15 Boston Edison Co. v. Brookline Realty & Investment Corp., 10 Mass. App. Ct. 63 (1980) ................. 36
Boothroyd v. Bogarty, 68 Mass. App. Ct. 40 (2007) . 29 Brandao v. DoCanto, 80 Mass. App. Ct. 151 (2011). . 29 Conte v. Marine Lumber Co., Inc., 66 Mass. App. Ct. 505 (2006) ......................................... 26
Collins v. Cabral, 348 Mass. 797 (1965). . . . . . .25 Custody of Eleanor, 414 Mass. 795 (1993) ............ 31 Demoulas v. Demoulas Super Markets, Inc., 424 Mass. 501 (1997). . . . . . . . . . . . . . . . . . . 15, 17 Foot v. Bauman, 333 Mass. 214 (1955). . . . . . . . 29 G.E.B. v. S.R.W., 422 Mass. 158 (1996) .............. 35 Goddard v. Dupree, 322 Mass. 247 (1948). . . . . . .16 Guardianship of Brandon, 424 Mass. 482 (1997) ....... 36 Holmes v. Johnson, 324 Mass. 450 (1949) ............. 17 In re Sharis, 83 Mass. App. Ct. 839 (2013) .......... 31 Kendall v. Selvaggio, 413 Mass. 619 (1992) . 15, 17, 18, 29
Kershaw v. Zecchini, 342 Mass. 318 (1961) . . . . . 25 LaChance v. First Nat’l Bank & Trust Co., 301 Mass. 488 (1938) ......................................... 25
Lawrence v. Concord, 439 Mass. 416 (2003) .. 17, 19, 25, 29
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Lee v. Mt. Ivy Press, L.P., 63 Mass. App. Ct. 538 (2005) ............................................. 35
MacDonald v. McGillvary, 35 Mass. App. Ct. 902 (1993) ........................................... 17, 19, 29
Marlow v. New Bedford, 369 Mass. 501 (1976) ......... 15 Masa Builders, Inc. v. Hanson, 30 Mass. App. Ct. 930 (1991) ............................................. 23
Masciocchi v. Utenis, 73 Mass. App. Ct. 1121 (2009) . 20 Masters v. Khuri, 62 Mass. App. Ct. 467 (2004) ...... 35 Mendonca v. Cities Serv. Oil Co. of Pa., 354 Mass. 323 (1968) ......................................... 19, 25
New England Canteen Serv., Inc. v. Ashley, 372 Mass. 671. . . . . . . . . . . . . . . . . . . . . . . . .16 Peck v. Bigelow, 34 Mass. App. Ct. 551 (1993) .. 18, 19, 22, 24, 25, 29, 30, 32
Poirier v. Plymouth, 374 Mass. 206 (1978) ........... 32 Pugatch v. Stoloff, 41 Mass. App. Ct. 536 (1996) 19, 28 Ryan v. Stavros, 348 Mass. 251 (1964) ............... 17 Shaw v. Solari, 8 Mass. App. Ct. 151 (1979) ..... 19, 24 Stone v. Perkins, 59 Mass. App. Ct. 265 (2003) .. 21, 24 Tinker v. Bessel, 213 Mass. 74, 76 (1912) ....... 20, 21 Totman v. Malloy, 413 Mass. 143, 145 (2000). . . . .24 T.W. Nickerson, Inc., v. Fleet Nat. Bank, 456 Mass. 562 (2010). . . . . . . . . . . . . . . . . . . . . 17 United States v. United States Gypsum Co., 333 U.S. 364 (1948) ......................................... 15
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STATUTES G. L. c. 231, § 119 ................................. 37 G.L. c. 260, § 21 . . . . . . . . . . . . . . . . . 33
RULES Mass. R. App. P. 16 (e) ............................. 39 Mass. R. App. P. 25 ................................. 40 Mass. R. Civ. P. 52 (a) ............................. 15 Mass. R. Civ. P. 61 ................................. 34
TREATISES 3 Am.Jur.2d Adverse Possession § 294 (2002) ......... 20 C.J.S. Adverse Possession § 261 (2003) .............. 20
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ISSUES PRESENTED
I. Whether the trial judge’s findings of fact
and rulings of law after a bench trial that the
appellants failed to meet their high burden of proving
adverse possession was clearly erroneous and legally
correct.
II. Whether the trial court abused his
discretion in allowing a former owner of the subject
property to testify, where the witness was disclosed
pretrial, with his testimony fully disclosed in an
affidavit filed in the case, and the appellants had
ample opportunity to cross-examine him using that
affidavit.
III. Whether the appellants’ appellate brief
rises to the level of acceptable appellate argument.
IV. Whether this appeal is frivolous under Mass.
R. App. P. 25.
STATEMENT OF THE CASE
On March 9, 2009, the Appellant, Samuel Winiker
commenced this action in the Middlesex Superior Court,
claiming adverse possession over a portion of the
abutting property of the Appellee, Kimberly Bell
(“Bell”), on Norfolk Street in Holliston,
Massachusetts. (A. 1-8). On April 7, 2009, Bell
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filed an answer and counterclaim, which sought an
permanent injunction ordering Winiker to remove an
encroaching retaining wall and driveway from Bell’s
property. (A. 2, 9-12).
On August 25, 2009, Winiker filed an assented to
motion to amend his complaint to correct a misnomer,
and on September 10, 2009, the Court (Billings, J.)
allowed the motion, so that that the Appellants were
properly named as Samuel Winiker and Frances Winiker
(“the Winikers”). (A. 2, 17-18).
On March 24, 2011, the parties filed a joint
pretrial memorandum. (A. 19-22). It disclosed Juan
Ortega of Florida, who previously owned the Bell
property, as a witness for Bell. (A. 21).
On August 6-9, 2012, the Court (Henry, J.)
presided over a jury-waived trial over four days
during which nine witnesses testified. (A. 3). On
the last day of trial, the trial judge took a view of
the properties. (A. 99-113).
Both parties filed requests for findings of fact
and rulings of law. (A. 3, 23-79, 80-90).
On November 5, 2012, the trial court issued a
Memorandum of Decision and Order After Jury-Waived
Trial, which ultimately found and ruled that “the
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plaintiffs have not proven by a preponderance of the
credible evidence that they adversely possess the
disputed portion of the Bell property.” (A. 91-103).
Additionally, the lower court ordered the Winikers “to
remove any portion of their driveway and retaining
wall which encroaches on the property of Ms. Bell.”
(A. 103). On November 7, 2012, the Court entered
Judgment on Finding of the Court. (A. 104).
On November 30, 2012, the Winikers filed a timely
Notice of Appeal. (A. 4). On June 27, 2013, the
Appeals Court issued a Notice of Entry.
STATEMENT OF FACTS
In May of 1964, Samuel Winiker, an experienced
real estate professional1, purchased a lot slightly
over two acres on Norfolk Street in Holliston,
Massachusetts. (Tr. Ex. 1, 2). In 1964, Mr. Winiker
subdivided the land into two buildable lots,
designated as Lot X and Lot Y on a recorded plan. (Tr.
Ex. 3). Lot Y was already improved with a home; Lot X
was unimproved and suitable for singe family
development. (Id.). The Winikers built a home for
themselves on Lot X which is now numbered as 505
Norfolk Street (hereinafter, “Winiker Property”). (A.
1 (Tr. 381-83).
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91, ¶ 1). Lot Y is now the property owned by Ms. Bell
and is numbered 523 Norfolk Street (hereinafter, “Bell
Property”). (A. 91, ¶ 1).
The Winikers have lived at the Winiker Property
for approximately 45 years since the late 1960’s.
(Tr.305). The Bell Property has had seven sets of
owners, five of whom testified at trial. They were
John and Janice McDevitt, Juan Ortega, Kathleen
Carter, James Jackson, and Ms. Bell. (A. 92).
The area claimed by the Winikers by adverse
possession is an approximately 2,616 square feet pie-
shaped area along the common boundary line between the
Winiker Property and the Bell Property, as shown on a
plot plan admitted as Trial Exhibit 14 (hereinafter,
“Disputed Area”). The plot plan was drawn up in 2011
based on Mr. Winiker’s instructions to the surveyor.
(Tr. 439). Mr. Winiker told the surveyor to plot a
line 30 feet into the rear of the Bell Property, then
extend that line out straight at an angle to Norfolk
Street, to correspond to where he claimed to have
mowed the lawn. (Id.).
In support of their adverse possession claim, the
Winikers claimed to have undertaken various activities
within the Disputed Area, such as planting trees,
5
maintaining a garden or berry patch, mowing the grass,
and paving a driveway over a small portion of the Bell
Property. The trial judge was faced with weighing the
testimony of the current and former owners of the Bell
Property with the conflicting and often inconsistent
testimony from the Winikers themselves.
Tree Planting
In support of their claimed adverse use, the
Winikers alleged they planted several trees within the
Disputed Area. However, as the trial judge observed,
Francis Winiker gave inconsistent testimony compared
to her deposition as to when she planted those trees.
(T. 144-46, 149). Likewise, Samuel Winiker at 77,
suffered from major lack of recall as to when those
trees were allegedly planted. (A. 93). Mr. Winiker
was unable to positively identify one such maple tree
on an old photograph of his children sitting on a
vehicle dating back to 1972 or on an aerial blowup of
the properties used at trial. (Tr.394-98).2
Accordingly, the trial judge discredited the Winikers’
testimony, and found that they had not proven by a
2 Mr. Winiker could not even positively identify any of his three kids in the old photograph. (T.380). Neither was he able to remember how many years he has been married. (T. 305, 380).
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preponderance of the evidence that they planted trees
in the Disputed Area. (A.93).
Garden/Berry Patch
As evidence of adverse use, the Winikers claimed
to have maintained a garden and berry patch within the
Disputed Area. Again, the trial judge was faced with
contradictory and conflicting testimony on this issue.
Under cross-examination, Mrs. Winiker was unable to
show exactly where this garden was located in relation
to the Disputed Area, and testified inconsistently
about the exact dates it was in existence. (Tr.175-
78). Her husband testified in his deposition that the
garden was installed in the 1990’s – some 20 years
after his wife’s assertion – and at trial he could not
say for sure exactly when the garden was in existence.
(Tr. 414-16). With the garden no longer in existence,
the Winikers failed to offer a survey or soil analysis
to prove where the alleged garden was located.3 (Tr.
177-78). Moreover, the former owners of the Bell
Property during this time, Juan Ortega, and John and
Janice McDevitt, testified that Mrs. Winiker did not
have a garden or berry patch on the Disputed Area.
3 According to Mrs. Winiker, the garden was removed in the late 1980’s after she saw a snake. (Tr. 177).
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(T.107-08; 125-26; 299-300). As the trial judge
observed from taking a view, such a garden would have
been obvious on the land. A.93. Accepting Mr.
Ortega’s and the McDevitts' testimony as more credible
than the Winikers, the trial court found that Winikers
failed to establish that the garden was present within
the Disputed Area for the requisite 20-year adverse
possession period. (A.94).4
Lawn Mowing
As evidence of adverse use, the Winikers claimed
to have mowed the Disputed Area for 40+ years. There
was, again, much conflicting testimony on this issue
as well as evidence of overlapping mowing by the
former owners of the Bell Property.
Between the 1960’s to the late 1980’s, the
portion of the Disputed Area closest to Norfolk Street
was covered by a dense grove of tall pine trees under
which there were layers of pine needles and dirt,
which rendered that area unmowable. (Tr.87-88, 91,
4 Indeed, the Winikers concede this point in their brief: “Although the gardening at issue did not [sic] span the entire twenty-year period, it serves as evidence of the Winikers’ use of the property during a significant period of time.” Winiker Brief at 14.
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287-88, 495-97; A.92).5 Only the more open back area
of the Disputed Area was suitable for mowing.
While the trial judge credited Mr. Winiker’s
testimony that he mowed a portion of the Disputed Area
towards the back yard area, he also accepted the
testimony from all of the testifying prior owners of
the Bell Property that they, too, mowed the same
general area. John McDevitt, who lived at the Bell
Property from 1977 – 1983, mowed the back yard area,
as it was not demarcated or fenced in. (Tr. 289-93).
Mr. Ortega also mowed the same back yard area and
specifically by the large maple tree which the
Winikers claimed to have planted on the Disputed Area.
(Tr. 90-91). Likewise, James Jackson, who resided at
the Bell Property from 1992 to 1998, mowed the same
portion of the Disputed Area in the back area, which
he characterized as “shared” and an open lawn area.
(Tr. 499-500). Mr. Jackson mowed this area despite
the fact that Mr. Winiker may have mowed the same
5 For example, James Jackson testified that there was a “cluster” of pine trees somewhere between 60-80 feet tall, which shed “layers and layers of pine needles. (Tr. 495-96). Mr. Jackson also removed up to five of these tall pine trees between the properties and within the Disputed Area, which opened up the previously dense area. (Tr. 497-98).
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area, thereby creating what he described as an overlap
of mowing. (Tr.507-08).
Kathleen Carter, who owned the Bell Property
between 1986 – 1992, likewise mowed portions of her
back yard area within the Disputed Area. (Tr.266).
James Jackson, owner of the Bell Property between 1992
– 1998, also mowed the same general area. (Tr. 499-
500, 504-05).
Ultimately, given the conflicting testimony, the
trial judge found that Mr. Winiker could not establish
the exact area over which he mowed and that he mowed
the Disputed Area to the exclusion of the owners of
the Bell Property. (Tr. 441; A. 93, ¶ 11).6 There was
no clear cut delineation of where the property line
was and there was no fence or wall between the two
properties. (Tr. 400-01; A. 93, ¶ 11).
Garage Project
In 1988, the Winikers started a detached garage
and driveway project ultimately resulting in the
encroachment that is the genesis of this lawsuit. The
project took several years to complete, with final
town inspections for the 2 story garage completed on
6 By way of example, when Mr. Winiker was shown a photograph of the property, he could not point out exactly where he mowed the lawn area. (Tr.441).
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October 22, 1991. (Tr. Ex. 10). The trial court found
that the Winikers occasionally stored construction
materials on the Disputed Area during the
construction, but such use was temporary. (A.95).
Mr. Winiker designed the garage with a peculiar
jag-edge to accommodate the boundary line shared with
the Bell property. (Tr. Ex. 10 (building designs),
Tr. Ex. 16C). The trial judge found that the
nonconventional design demonstrated that Mr. Winiker
was fully aware of the location of the lot line.
(A.95). The garage project included a new driveway
and retaining wall which encroaches upon the Bell
Property, the total area of which is approximately 250
square feet. (Tr. Ex. 14, A.95). This was the only
encroaching aspect of the project. The completion of
the encroaching retaining wall and driveway came
sometime after the Fall of 1991 and most likely in
1993-94 time-frame since Mr. Winiker did the work
himself over the years. (Tr.431-32). Again, Mr.
Winiker went ahead with the encroaching work knowing
where the lot line was, as the trial court found.
(A.95).
During the construction of the garage project,
Mr. Winiker approached Kathleen Carter and asked her
11
if she was willing to sell him some of her land on the
side property line, within the Disputed Area. (Tr.267-
69). The sale was never consummated. (Id.).
Use of Disputed Area by the Bell Property Owners
There was quite a bit of evidence at trial that
the former owners of the Bell Property also used and
maintained the unenclosed Disputed Area.
As referenced above, all of the former owners of
the Bell Property testified they mowed the lawn within
the Disputed Area, with no objection from the
Winikers. Mr. Ortega measured off the lot lines
himself using his deed and cleared brush from the
land, including within the Disputed Area. (Tr. 70, 76-
82, 88-89). Mr. Ortega also landscaped, raked leaves
and stacked firewood within the Disputed Area, with no
objection from the Winikers. (Tr. 89-92, 107). The
stack of firewood remained on the Disputed Area even
after Mr. Ortega sold the property to Mrs. Carter.
(Tr.267). Mr. Ortega, who is of Puerto Rican descent,
also enjoyed at least two large family pig roast
cookouts on his property. (Tr.93, 101-03). He and
his guests utilized the Disputed Area for walking
about and volleyball, and seeking some alone time on a
rock along the property line within the Disputed Area.
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(Id.). Mr. Ortega knocked on the Winiker’s door to
invite them to the pig roasts, but they did not
respond. (Id.).
In addition to lawn mowing and yard work, James
Jackson used the Disputed Area occasionally for
cookouts, Frisbee and ball games. (Tr. 499-500, 504-
05). Mr. Jackson also removed some pine trees in the
front portion of the Disputed Area along Norfolk
Street. (Tr.497). Again, the Winikers never objected
to Mr. Jackson about using the Disputed Area or
otherwise excluded him. (Tr.503-05).
In 1998, Ms. Bell put in dirt, arborvitae
plantings and bushes within the Disputed Area after
moving in. (Tr.567-71). She also mowed the grass
portions of the Disputed Area in the rear along the
Winiker Property and near Norfolk Street. (Id.). Ms.
Bell also cut through the Disputed Area and the
Winiker Property to walk her dog on the way to nearby
Lake Winthrop and Stoddard Park. (Tr.641).
In 2002, Ms. Bell moved out of state, and she
asked Mr. Winiker if he would mow her lawn which he
did. (Tr.574-75). In 2007, Ms. Bell again asked Mr.
Winiker to mow her lawn which he agreed to do. (A.95).
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Bell Surveys Her Property and Installs Fence
In April 2008, Ms. Bell commissioned a survey of
her property and ran a string along the shared
property line with the Winikers. (Tr.586, 592). The
survey showed that a portion the Winikers’ driveway
and retaining wall encroached onto Bell’s property.
Ms. Bell planted a row of Alberta spruce trees in May
2008 along the newly disclosed lot line, while the
Winikers were away in Florida. (Id., Tr. Ex. 16-K).
When the Winikers returned from Florida, Francis
Winiker approached Ms. Bell, scolding her that she’d
“better get those spruce off of there.” (Tr.595). The
Winikers then approached Ms. Bell several times to
secure an easement from Ms. Bell. (Tr.595-603). When
Ms. Bell changed her mind about granting an easement,
Mrs. Winiker barged into Ms. Bell’s home on a Sunday,
threatening her that Mr. Winiker had a real estate
broker’s license and that Ms. Bell “better give them
what they want.” (Tr. 603). Mrs. Winiker told Ms.
Bell that they had already consulted an attorney and
“if they didn’t give them what they want, they were
going to sue.” (Id.). Ms. Bell felt that the Winikers
were trying to intimidate and bully her. (Id.).
14
Ms. Bell then delivered a letter dated June 14,
2008 to the Winikers which the Winikers received.
(Trial Ex. 13). The letter states, in part:
I wanted to take this opportunity to thank you for honoring my request of mowing my lawn during the entire 2007 mowing season while my house was vacant, as I was trying to move back home to Holliston….You did a good job, and your presence on my property is no longer required or wanted. Next, I wanted to thank you for respecting our mutual property line as indicated by the surveyor stakes and string that were installed in March of this year by GLM of Holliston. Additionally, I wanted to inform you of the new fence that I would like to install along part of our common property line…The fence will then accommodate your driveway and portion of your stonewall which is currently encroaching on my property.” There was no response to this letter by the
Winikers. (Tr.607).
On August 8, 2008, Ms. Bell installed a fence
along the property line (within the Disputed Area),
with a jag to accommodate the encroaching driveway and
retaining wall, and that fence remains in the same
location and configuration today. (Tr.607-09, Tr. Ex.
16E-G, 17). From that point forward, the Winikers
have been effectively excluded from using the Disputed
Area. (Tr.608-09).
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SUMMARY OF ARGUMENT
The Winikers’ adverse possession claim fails for
four fatal reasons, all amply supported by the
evidence and not clearly erroneous:
• The Winikers failed to establish the precise
area over which they claimed adverse
possession. See infra at 20-24.
• The Winikers’ claimed uses of the Disputed
Area did not satisfy the actual use element
of adverse possession. See infra at 24-29.
• The Winikers’ use was not exclusive. See
infra at 29-33.
• The Winikers’ uses of the Disputed Area,
even if credited, did not span an entire,
consecutive 20 year period as required by
G.L. c. 260, § 21. See infra at 33-36.
The Trial Court did not abuse its discretion in
allowing the testimony of Juan Ortega where his
expected testimony was disclosed pretrial and the
Winikers’ cross examination was not hampered in the
least bit. See infra at 36-38.
The Winikers’ brief fails to rise to the
acceptable level of appellate argument as it contains
numerous, critical statements of fact and of the trial
16
testimony without any reference to, and often
unsupported by, the trial transcript. See infra at 38-
40.
Lastly, the Winikers’ appeal is frivolous as
there is no reasonable expectation of reversal given
the deference given to the Trial Court’s findings of
fact and his well-reasoned Memorandum of Decision. See
infra at 40-42.
ARGUMENT
I. THE STANDARD OF REVIEW ON APPEAL.
The appellate review of a bench trial is a two-
step analysis, with the judge’s findings of fact given
considerable deference, while his rulings of law are
tested for legal error. Findings of fact shall not be
set aside unless “clearly erroneous.” Mass. R. Civ.
P. 52 (a), as amended, 423 Mass. 1402 (1996). “A
finding is ‘clearly erroneous’ when although there is
evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm
conviction that a mistake has been committed.”’
Marlow v. New Bedford, 369 Mass. 501, 508 (1976),
quoting United States v. United States Gypsum Co., 333
U.S. 364, 395 (1948). The appellants have the burden
to show that a finding of fact is clearly erroneous.
17
First Pa. Mtge. Trust v. Dorchester Sav. Bank, 395
Mass. 614, 621–622, 481 N.E.2d 1132 (1985).
In applying the “clearly erroneous” standard,
rule 52(a) requires that “due regard shall be given to
the opportunity of the trial court to judge the
credibility of the witnesses.” Demoulas v. Demoulas
Super Markets, Inc., 424 Mass. 501, 509-510 (1997).
The trial judge, who has a “firsthand view of the
presentation of evidence, is in the best position to
judge the weight and credibility of the evidence.”
New England Canteen Serv., Inc. v. Ashley, 372 Mass.
671, 675 (1977). The judge's advantage in weighing
the testimony is particularly evident in a case (like
this one) involving conflicting testimony, “one in
which widely differing inferences could be drawn from
the evidence,” and the drawing of inferences cannot be
separated from the evaluation of the testimony itself.
Goddard v. Dupree, 322 Mass. 247, 248, 76 N.E.2d 643
(1948). As a consequence, the appellate court does
not “review questions of fact found by the judge,
where such findings are supported ‘on any reasonable
view of the evidence, including all rational
inferences of which it was susceptible.’” T.L.
Edwards, Inc. v. Fields, 371 Mass. 895, 896, 358
18
N.E.2d 768 (1976), quoting Bowers v. Hathaway, 337
Mass. 88, 89, 148 N.E.2d 265 (1958). So long as the
judge's account is plausible in light of the entire
record, an appellate court should decline to reverse
it. Demoulas, 424 Mass. at 509. “Where there are two
permissible views of the evidence, the fact-finder's
choice between them cannot be clearly erroneous.”
Gallagher v. Taylor, 26 Mass. App. Ct. 876, 881
(1989), quoting Anderson v. Bessemer, 470 U.S. 564,
573–574 (1985).
In contrast to the review of findings of fact, an
appellate court reviews a trial judge’s rulings of law
de novo, and must be ensured to be in compliance with
the applicable legal standards. T.W. Nickerson, Inc.
v. Fleet Nat. Bank, 456 Mass. 562, 569 (2010);
Demoulas, supra at 510. “When the judge's
conclusions are based on reasonable inferences from
the evidence and are consistent with the findings,
there is usually no error.” Demoulas, supra, at 510.
19
II. THE TRIAL COURT’S FINDINGS OF FACT WERE AMPLY SUPPORTED BY THE EVIDENCE AND NOT CLEARLY ERRONEOUS, AND ITS RULINGS OF LAW WERE CORRECT UNDER MASSACHUSETTS ADVERSE POSSESSION JURISPRUDENCE.
As is fairly typical of an adverse possession
case, the trial court presided over a factually
intensive trial with much conflicting evidence, both
testimonial and documentary. The trial court was
tasked with evaluating the credibility, scope and
duration of the various uses claimed by the Winikers
to establish adverse possession, balanced with the
often conflicting testimony of the former owners of
the Bell Property. An adverse possession trial such
as this is, in essence, a detailed investigation into
the history of a small sliver of land – a task ideal
for a trial court, but much less so for a reviewing
appellate court. As discussed infra, the Winikers’
adverse possession claim failed for four fatal
reasons, all amply supported by the evidence:
• The Winikers failed to establish the precise
area over which they claimed adverse
possession.
20
• The Winikers’ claimed uses of the Disputed
Area did not satisfy the actual use element
of adverse possession.
• The Winikers’ use was not exclusive
• The Winikers’ uses of the Disputed Area,
even if credited, did not span an entire,
consecutive 20 year period as required by
G.L. c. 260, § 21.
Each reason supports affirming the judgment, and
combined they demonstrate the pervasive weaknesses of
the Winikers’ claim.
A. The Elements of Adverse Possession
Title by adverse possession can be acquired only
by proof of non-permissive use which is actual, open,
notorious, exclusive and adverse for twenty years.
Lawrence v. Concord, 439 Mass. 416, 421 (2003);
Kendall v. Selvaggio, 413 Mass. 619, 621-622 (1992);
Ryan v. Stavros, 348 Mass. 251, 262 (1964).
Acquisition of title through adverse possession is a
question of fact to be proved by the one asserting the
title. The burden of proof extends to all of the
necessary elements of the claim. Holmes v. Johnson,
324 Mass. 450, 453 (1949) (citations omitted). Accord
MacDonald v. McGillvary, 35 Mass. App. Ct. 902, 903
21
(1993). “If any of these elements is left in doubt,
the claimant cannot prevail.” Mendonca v. Cities
Serv. Oil Co. of Pa., 354 Mass. 323, 326 (1968).
B. The Trial Court Correctly Found That The Winikers Failed To Establish The Precise Area Of Adverse Possession.
Before even stepping into the adverse possession
batter’s box, the Winikers were stuck on the on-deck
circle of not being able to establish the exact area
over which they asserted adverse possession, as Bell
argued below and the trial court ruled. This fatality
was caused by the Winikers’ over-reliance upon the
perfectly drawn pie shaped disputed area drafted up
for them by a surveyor. (Tr. Ex. 14). As previously
stated, Mr. Winiker had this plan drawn up by
instructing his surveyor to plot a course 30 feet into
the Bell Property and draw a straight line back to
Norfolk Street to the so-called town tree on Norfolk
Street. (Tr.319-20). As the trial court correctly
found and ruled, the Winikers’ various claimed uses
did not match up to the disputed area shown on the
plan.
A century’s old requirement, a claimant of
adverse possession must describe the land adversely
possessed in an exact and definite matter. See Tinker
22
v. Bessel, 213 Mass. 74, 76 (1912); see also
Masciocchi v. Utenis, 73 Mass. App. Ct. 1121 (2009),
citing 3 Am.Jur.2d Adverse Possession § 294, at 328
(2002). See also 2 C.J.S. Adverse Possession § 261,
at 692 (2003) (‘A claimant of title by adverse
possession must further show the extent of their
possession, the exact property which was the subject
of the claim of ownership’). As the SJC held over 100
years ago, “[t]he definite description [of adversely
possessed land], which would be necessary for a valid
grant, must be supplied from evidence of actual use.
It must be explicit and not left to inference or
implication.” Tinker, 213 Mass. at 76. See also
Stone v. Perkins, 59 Mass. App. Ct. 265, 268 (2003)
(in the analogous context of prescriptive easements, a
claimant must show a definite location of the
prescriptive easement on the servient property). The
rationale for this requirement, as the trial court
noted during directed verdict arguments (Tr.487), is
that the evidence must be sufficiently definite to
support a description in the judgment upon which a
metes and bounds measurement could be performed. See
Masa Builders, Inc. v. Hanson, 30 Mass. App. Ct. 930,
931 (1991).
23
The Court applied this long-standing legal
standard to the facts, and concluded correctly that,
“[w]hile the plaintiffs have presented a plan which
designates the portion of the Bell property which they
are claiming by adverse possession, I do not accept
that plan as being the area over which they did exert
at least some control for some periods of time.” (A.
99). While the Winikers may have hoped the evidence
came in at trial consistent with the pie-shaped
Disputed Area on Trial Exhibit 14, that is not how the
evidence came in at all. For example, as the trial
court correctly found, the evidence of Mrs. Winiker’s
claimed garden and berry patch was a “moving target”
and not well delineated. She could not say for
certain exactly where the garden was located relative
to the Disputed Area, and she conceded it was possible
it was on her own property.7 Mrs. Winiker also changed
7 Mrs. Winiker testified as follows: Q. Okay. And it’s certainly a possibility that the garden was located wholly on your side of the property, isn’t that right? A. Possibly. Q. You’re not really sure, as you sit here today, exactly where the garden is – was, correct? A. I have a very good recollection of where it was. Q. Didn’t you testify at your deposition that it was possible that the garden was on – wholly on your side of the property?
24
the dates of when the garden was created between her
deposition and trial. (Tr. 175-78). Her husband’s
recollection was far worse, dating the mysterious
garden in the 1990’s, over 20 years after Mrs. Winiker
claimed to have started it. (Tr. 414-16). And of
course, three former owners of the Bell Property
testified that Mrs. Winiker did not have a garden at
all. (T.107-08; 125-26; 299-300).
The same fuzziness inflicted the Winikers’
evidence of lawn mowing. Because of the large cluster
of pine trees at the front portion of the Disputed
Area near Norfolk Street, mowing a straight line in
congruity with the Winikers’ pie-shaped depiction of
the Disputed Area was impossible. Mr. Winiker’s best
case was that he mowed some portion of the Disputed
Area in the rear backyard, however, there was abundant
evidence that such use was not exclusive and that the
former owners of the Bell Property mowed the same
area.
Instead of a perfectly drawn piece of pie, the
evidence of the Winikers’ adverse use came in more
like the family dog ate the pie, with pieces and
A. When it was first put in, I thought it was on our side, but I found out later that it wasn’t. (Tr.177).
25
crumbles left here and there in the pan. The evidence
of adverse possession provided by the Winikers was
insufficiently definite to support a description in
the judgment upon which a metes and bounds measurement
could be performed. See Masa Builders, Inc. v.
Hanson, 30 Mass. App. Ct. 930, 931 (1991). The trial
court’s judgment can and should be affirmed on this
basis alone.
C. The Trial Court’s Finding That The Winikers Failed To Make “Actual Use” Of The Disputed Area Was Not Clearly Erroneous and In Accord With Established Case Law.
In general, a person makes actual use of the
property if they use, control, or make changes upon
the land similar to the uses, controls, or changes
that are usually and ordinarily associated with
property ownership in the local area. Totman v.
Malloy, 413 Mass. 143, 145 (2000); Stone v. Perkins,
59 Mass. App. Ct. 265, 266 (2007). The test is the
degree of control exercised over the land by the
possessors. Shaw v. Solari, 8 Mass. App. Ct. 151, 156
(1979).
Another important factor in the actual use
analysis is whether the claimant made any permanent
improvements upon the land for the requisite 20 year
26
period. See Peck v. Bigelow, 34 Mass. App. Ct. 551,
556 (1993). For example, Massachusetts courts have
deemed permanent improvements to consist of the
building of stone walls, a septic system, or an actual
house. LaChance v. First Natl. Bank & Trust Co. of
Greenfield, 301 Mass. 488, 491 (1938); Collins v.
Cabral, 348 Mass. 797, 797-798 (1965); Kershaw v.
Zecchini, 342 Mass. 318, 320 (1961). Improvements
that are not attached to the land and easily removable
are not considered evidence of actual use. Peck, 34
Mass. App. Ct. at 556.
Noting that it was a “close question” (A.100) – a
judgment call by the trial judge to be given
considerable deference – the trial court considered
all of the uses put forth by the Winikers but
ultimately ruled, correctly, that they fell short of
the high threshold of “actual” use. As the trial
court correctly found, “the seasonal or sporadic use
of the disputed property, in essence as a side yard,
and the acts of mowing and tending a garden and a
berry patch are insufficient to give the Winikers
adverse possession of the property.” (A. 101). This
finding is entirely consistent with the case law on
“actual” use. See Peck v. Bigelow, 34 Mass. App. Ct.
27
551, 553-557 (1993) (claimant who mowed, used space
for picnic table and lounge chairs, clotheslines,
planting and maintaining trees for ten years, raking
leaves, but who made no permanent improvements on the
lot failed to prove actual use); Conte v. Marine
Lumber Co., Inc., 66 Mass. App. Ct. 505, 509 (2006)
(clearing trees, burying rubbish, planting rye grass,
and digging loam could not suffice in intensity to
qualify for adverse possession despite the lack of
fencing for the construction of buildings).
The trial court’s finding that Mr. Winiker’s lawn
mowing was merely seasonal and sporadic was not by any
means clearly erroneous or legally incorrect. See Peck
v. Bigelow, 34 Mass. App. Ct. 551 (1993) (seasonal
lawn mowing for 24 years was not sufficient adverse or
exclusive use); Marciano v. Peralta, 2008 WL 4266509,
2 (Mass. App. Ct.,2008) (holding that occasional,
seasonal lawn mowing did not satisfy the requirement
of actual use). Indeed, if the occasional mowing of a
portion of a next door neighbor’s lawn is adverse
possession, there would be meritorious adverse
possession claims between neighbors from Weymouth to
Salem and all points in between.
28
The same is true for the Winikers’ sporadic
parking of vehicles, temporary storage of construction
equipment or the seasonal piling up of snow. (Winiker
Brief at 14). Mr. Winiker conceded that any storage
of construction materials was for a few months at a
time during the projects, and he could not say for
sure the actual duration of any such storage.
(Tr.472-73). The trial judge did acknowledge that the
Winikers, “occasionally used some of the property in
question to park equipment and materials during the
construction phase.” (See A. 93, ¶ 9). He concluded
correctly, however, that the sporadic use of some of
the disputed property for this purpose was not
sufficient to establish ownership of the area. (See
A. 101). See Peck, 34 Mass. App. Ct. at 556.
As for the plowing of snow, Mr. Winiker readily
acknowledged that such use, by definition, was
seasonal in that one can only plow snow when it snows,
and that depended on the particular season. (Tr.475).
During his discussion regarding snow plowing, Mr.
Winiker could not provide an exact number of times
that he plowed snow into the Disputed Area. (Tr.350).
As for parking vehicles, the only place to park
vehicles on the Disputed Area was on the new driveway
29
which was not was completed until 1994-95. With seven
garage bays for five vehicles,(Tr.222), it was no
surprise that the Winikers conceded that they parked
vehicles within the Disputed Area for no more than a
few days at a time “as needed.” (Tr.44, 347).8 Even if
accepting arguendo that the parking of vehicles is
sufficiently adverse use, it fell well short of the
applicable 20 year period which ending in 2008 when
Ms. Bell fenced in the property line.9 (Tr.403).
Lastly, the Winikers did not make any permanent
improvements to the land for the requisite 20 year
period. The only possible improvement would have been
the encroaching driveway and retaining wall, but
again, such use did not pass the 20 year threshold.
At best, the driveway and wall began in 1992 but Ms.
Bell clearly asserted her ownership by installing a
fence in 2008, thereby leaving the period short by 4
years, as the trial court correctly found. (A.101).
8 On direct, Mr. Winiker testified that the parking of vehicles was “as needed” for “an hour, overnight, maybe a couple of days, but you know, no more than an couple of days at a time.” (Tr.347). 9 Mr. Ortega testified that he never observed the Winikers parking on the Disputed Area. (Tr. 108).
30
D. The Trial Court’s Finding That The Winikers Failed To Prove Exclusive Use Was Neither Clearly Erroneous Nor Legally Incorrect.
Proof of exclusive use is often the death-knell
of adverse possession claimants, and it was here. The
Winikers were charged with the formidable task of
proving that they excluded Ms. Bell and her
predecessors in title and all other persons to the
same extent that a true owner would have excluded them
if it were his or her property. Lawrence v. Concord,
439 Mass. 416, 421-2 (2003); Boothroyd v. Bogarty, 68
Mass. App. Ct. 40, 44 (2007); Foot v. Bauman, 333
Mass. 214, 218 (1955). In the language of old English
property law, such use must encompass a “disseisin” of
the record owner.” Peck, 34 Mass. App. Ct. at 557.
Exclusive use most often takes the form of a
fence, wall or other structure which physically shuts
out anyone from gaining access into a disputed area.
See, e.g., Kendall v. Selvaggio, 413 Mass. 619, 621
(1992) (fence); MacDonald v. McGillvary, 35 Mass. App.
Ct. 902, 903 (1993) (fence); Brandao v. DoCanto, 80
Mass. App. Ct. 151 (2011) (entire condominium
building). The exclusivity requirement gives the
victim of possible adverse possession the opportunity
to challenge the adverse use. See Lawrence v. Concord,
31
439 Mass. 416, 421 (2003). After all, if a neighbor
sees a fence being installed on her property, the law
says she should not sit on her property rights, lest
an adverse possession claim ripens.
In the same vein, shared or permissive use cannot
be exclusive use as a matter of law. Peck, 54 Mass.
App. Ct. at 555-56; Lawrence, 439 Mass. at 421-2
(2003); Boothroy, 68 Mass. App. Ct. at 44.
The Winikers acknowledged throughout their
testimony that they never made any attempt to exclude
their neighbors or anyone else from the Disputed Area.
(Tr. 179-180, 196, 238-239). If fact, they seemed
proud of the fact that they were so welcoming in
letting others come onto their property for ball
games, to enjoy their garden, and back yard. The
Winikers never installed a fence or other barrier to
entry. (Tr. 41, 52, 64). Indeed, it was Ms. Bell who
finally installed a fence. There was never any
demarcation of the property line, until Ms. Bell had
the property surveyed in 2008. By all accounts from
the trial testimony and the photographs admitted at
trial, the Disputed Area was a fairly open side and
back yard area with areas of pine and maple trees and
lawn –typical of any given suburban yard area in the
32
Commonwealth. The failure to enclose or otherwise
shut out others from the adversely possessed area is
almost always fatal to an adverse possession claim,
and it is here. See Peck, 34 Mass. App. Ct. at 557
The evidence further showed that the owners of
the Bell Property made just as much, if not more, use
of the Disputed Area, thereby refuting any claim of
exclusivity. The trial court was well within its
right as the trier of fact to accept the testimony of
Mr. McDevitt, Mr. Ortega, and Mr. Jackson as to their
numerous activities on the Disputed Area, including
mowing, stacking firewood clean up, removing brush,
taking down trees, raking leaves, holding pig roasts
and cookouts, playing games, etc.10 (A. 101). The
Winikers could not refute this testimony as they
testified they hardly if ever interacted with their
neighbors. The Winikers’ attack on Mr. Ortega’s
credibility hardly warrants a response as it was
10 The Winikers contend that the trial court’s factual finding “that Mr. McDevitt went onto the disputed property . . . seems at odds with his actual testimony.” (See Appellants’ Brief at 15). That is not correct. Mr. McDevitt testified that he mowed “back to the end of what we - - of what our property was.” (T. 289-293). This was the same area allegedly mowed by Mr. Winiker. As such, the Court’s fact finding with regard to Mr. McDevitt is not clearly erroneous.
33
solely within the trial judge’s province and not shown
to be clearly erroneous.11
The case of Peck v. Bigelow, 34 Mass. App. Ct.
551 (1993), rev. denied, is directly on point with
this case and supports the trial court’s judgment. In
Peck, this Court found no adverse possession although
the claimant mowed the disputed area for over 20
years, used a picnic table and lounge chairs, set up
three clotheslines, put in a rope swing and sandbox,
built a henhouse, planted and cut down several trees,
maintained compost and lumber piles, and rakes leaves
11 The Winikers contend that Mr. Ortega’s testimony “suffers from a number of difficulties,” such as alleged problems with “credibility,” “veracity,” and “undue influence.” (See Appellants’ Brief at 15-17). These criticisms are, of course, the sole province of the trier of fact to evaluate. Moreover, the Winikers make an illogical attempt to undermine Mr. Ortega’s testimony concerning his guests’ use of the Disputed Area, arguing that the rock that Mr. Ortega’s guests sat on during his pig roasts is “not even in the disputed area but exists directly on the property of the Winikers.” (See Appellants’ Brief at 16). At trial, there was much disagreement over the location of this rock, with the Winiker’s trial counsel even urging the trial judge to dig around the rock during his view. (Tr.556-62). Recognizing the potential problems with such an archeological dig, the trial court thought better of it. In any event, even if the rock was on the Winiker side, it further weakens the Winikers’ exclusivity argument, as the only reasonable inference one could draw is that Mr. Ortega’s guests could only reach the Winikers’ rock by walking to it over the disputed area.
34
and pruned trees on the disputed land. Id. at 553-54.
This was not enough, the Court said, as there was no
permanent fence or other structure shutting out others
from the land. “Passing, then, to the acts of the
present defendant on the land-the crux-we conclude
that, taking even an indulgent view, he failed to
carry his burden of proving his “actual” or
“exclusive” use in the sense of the doctrine of
adverse possession.” Id. at 556.
Following Peck and the other jurisprudence
considering exclusivity, the trial court correctly
ruled that the “plaintiffs failed to establish a
‘disseisin’ of the other owners of the Bell property.”
(See A. 101).
E. The Court Correctly Concluded That The Winikers Did Not Adversely Possess The Bell Property Continuously For Twenty Years.
The essential statutory requirement, a person
claiming title by adverse possession must occupy the
locus without the permission of the true owner,
continuously for twenty years. G.L. c. 260, § 21;
Lawrence, 439 Mass. at 425. Continuity of possession
is interrupted by acts of dominion by the owners
consistent with their title of record. See Mendonca,
354 Mass. at 326.
35
The trial court correctly found and ruled that
there was no consecutive 20 year period in which the
Winikers exclusively, actually and openly used the
Disputed Area. Any adverse possession by the Winikers
starting from the time they occupied their property in
the late 1960’s was effectively stopped by the
activities of the McDevitts beginning in 1977 when
they purchased the property. (A.101). And the
activities of the Bell Property owners carried over
into the 1980’s, 1990’s and 2000’s with the numerous
uses of the Disputed Area by Mr. Ortega, Mrs. Carter,
the Jacksons and finally Ms. Bell. As discussed at
length above, the trial court’s finding that Mrs.
Winiker’s garden and berry patch did not last for the
requisite twenty-year period was not clearly erroneous
given the conflicting testimony on that issue.
The trial court also correctly found that the
activities surrounding the Winikers’ detached garage
project did not run for 20 years. The trial record is
clear from the building permit application, plans and
inspection records and Mr. Winiker’s own testimony
that the only encroachment onto the Disputed Area came
through the driveway and retaining wall which was
completed, at the earliest in 1992, according to the
36
trial court’s finding.12 (Tr. Ex. 10, Tr.431-32).13 Ms.
Bell asserted her ownership of the Disputed Area in
2008 by having her property surveyed and installing a
fence. The adverse possession time period may be
broken by a challenge to the alleged adverse
possession, re-entry onto the land or a legal action.
Bucella v. Agrippino, 257 Mass. 483 (1926).14
Accordingly, the encroachment of the driveway and
retaining wall lasted only 16 years, at best.
Accordingly, the Court correctly concluded that,
“[t]here is no consecutive twenty year period in which
the Winikers exclusively, actually, and adversely used
the disputed portion of the Bell property.” (A. 101).
12 The Winikers’ brief contains what is, at best, an inartful misstatement, when it contends: “That garage had a driveway and retaining wall which both in part intruded into the Disputed Property.” (See Appellants’ Brief at 6). The record shows clearly that the garage is solely on the Winikers’ property. (Tr. Ex. 16, Tr. 339). In fact, that was the reason for the peculiar jag edge of the structure. Accordingly, the Winikers cannot legitimately argue that the garage intruded into the disputed area. 13 More accurately, Mr. Winiker completed the driveway and wall as late as 1993-94 according to his testimony. (Tr.431-32) 14 On April 7, 2009, Bell filed a counterclaim in this action seeking an injunction ordering the Winikers to remove the encroaching retaining wall and driveway from Bell’s property. (See. A. 10-11). Commencing a legal action against an adverse possessor interrupts a claim for adverse possession. See Pugatch, 41 Mass. App. Ct. at 544 n.10.
37
III. THE COURT DID NOT ABUSE ITS DISCRETION IN ALLOWING THE TESTIMONY OF JUAN ORTEGA
The trial court’s judgment call to allow the
testimony of Juan Ortega over the Winikers’ objection
relating to pre-trial disclosure can only be
overturned upon a showing of abuse of discretion.
“The conduct and scope of discovery is within the
sound discretion of the judge ... [, and appellate
courts will] not interfere with the judge's exercise
of discretion in the absence of a showing of
prejudicial error resulting from an abuse of
discretion.” Wilson v. Honeywell, Inc., 28 Mass. App.
Ct. 298, 303-304 (1990), citing Solimene v. B. Grauel &
Co., 399 Mass. 790, 799, (1987). No such showing has
been made.
Mr. Ortega was listed as a testifying witness on
the Joint Pretrial Memorandum. (A.21). The Winikers
did not depose him, however. As to pretrial
disclosure, Mr. Ortega submitted an affidavit during
summary judgment proceedings which outlined his
expected testimony. (Trial Ex. 18). Mr. Ortega’s
trial testimony, specifically regarding measuring the
lot lines, tracked his affidavit, as the trial judge
noted during argument on the issue. (Tr.75). Despite
38
his claimed surprise by Mr. Ortega’s testimony, the
Winikers’ trial counsel used Ortega’s affidavit
extensively during his skilled cross-examination, and
in fact offered it as an exhibit which the trial judge
allowed. (Trial Ex. 18, A. 132-39). The Winikers’
cross examination was not hampered at all. If
anything, it was enhanced by the detail provided in
the affidavit. There was no surprise as Ortega’s
testimony was entirely consistent with his affidavit
which counsel had over a year before the trial.
Accordingly, the Winikers have failed to show that the
trial judge committed any abuse of discretion or that
they were unduly prejudiced by Mr. Ortega’s testimony.
See Wilson v. Honeywell, Inc., 28 Mass. App. Ct. at
303-304 (ruling that trial judge was not required to
exclude evidence despite claimed non-disclosure under
Mass. R. Civ. P. 26); G.E.B. v. S.R.W., 422 Mass. 158,
169 (1996) (“The burden is on . . . the proponent of
the exclusion, to show that the trier of fact might
have reached a different result if the ruling had been
different.”) Id. See G. L. c. 231, § 119 (error in
admission of testimony must affect substantial rights
proponent of objection).
39
IV. THE WINIKERS’ BRIEF DOES NOT RISE TO THE LEVEL OF ACCEPTABLE APPELLATE ARGUMENT.
The Winikers’ brief contains numerous, critical
statements of the fact and of the trial testimony
without any reference to, and often unsupported by,
the trial transcript. See Appellants’ Brief at 3, 6-
10, 13-19.15 This type of appellate draftsmanship
makes an appellate review of a bench trial nearly
impossible. It improperly puts the burden on this
Court and Bell’s counsel to cull through the trial
transcript and determine whether the appellant’s
statements are supported by the record and factually
accurate. That is the job of the appellant’s counsel.
The Rules of Appellate Procedure provide that
“[n]o statement of a fact of a case shall be made in
any part of the brief without an appropriate and
accurate record reference.” Mass. R. A. P. 16 (e).
“References in the briefs to parts of the record
reproduced in an appendix shall be to the pages of the
appendix at which those parts appear, Mass. R. A. P.
15 For example, the Winiker’s claim, without record citation, “the evidence in this case does not demonstrate a single parking of an automobile on the disputed property but a continued habit and pattern of conduct in doing so.” Winiker Brief at 14. There was no such evidence adduced at trial of a “habit” or “continued pattern” of parking vehicles.
40
16 (e), as amended, 378 Mass. 940 (1979).”
Guardianship of Brandon, 424 Mass. 482, 497 n.22
(1997). See also Boston Edison Co. v. Brookline
Realty & Investment Corp., 10 Mass. App. Ct. 63, 69
(1980) (striking portions of brief not supported by
record references).
This Court should disregard all statements of
fact and argument contained in the Winikers’ brief not
supported by an appropriate and accurate record
reference. Unfortunately, the Winikers’ Brief is
riddled with this poor practice.
V. THIS APPEAL IS FRIVOLOUS. Pursuant to Mass. R. App. P. 25 and G. L. c. 211,
§ 10, Bell respectfully moves for an award of her
reasonable attorney’s fees, and double costs, in
connection with defending against the Winikers’
frivolous appeal. “An appeal is frivolous when the
law is well settled, when there can be no reasonable
expectation of a reversal.” Avery v. Steele, 414
Mass. 450, 455 (1993).
As counsel for Bell argued below, this was a very
weak case of adverse possession, and now more so on
appeal, given the deferential standard of review.
This trial was conducted by a judge who carefully
41
listened to the trial testimony, asked questions,
reviewed the trial exhibits and took a view of the
property. The trial judge wrote a well reasoned 13
page Memorandum Decision in which he carefully
outlined his findings of fact, noting where he
credited the testimony of the Winikers or Ms. Bell’s
witnesses. He recited the jurisprudence of adverse
possession law correctly, and his legal reasoning was
sound. The Winikers’ case in chief consisted only of
themselves, and was riddled with inconsistencies, lack
of recall and conflicting testimony. Once Ms. Bell
started putting on the former owners of the Bell
Property, it was clear that the Winikers would be
unable to prove all of the elements of adverse
possession over the required 20 year period. It was
not even close.
Moreover, there was evidence that the Winikers
used threats of litigation to intimidate and bully Ms.
Bell. (Tr.603). When Ms. Bell refused to cave into
the Winikers’ demands, they brought this lawsuit, even
though it was objectively very weak. Furthermore, as
with all claims of adverse possession, the Winikers’
claim has created a cloud on Ms. Bell’s title, and
effectively makes it virtually impossible to sell.
42
Not a person of means, Ms. Bell has spent many
thousands of dollars on attorneys’ fees defending this
case through trial and appeal.
On appeal, it is almost as if the Winikers’
counsel has “mailed it in” by filing a substandard
brief, filled with misstatements of fact, a dearth of
record citations, and legal arguments which have no
likelihood of success. Ms. Bell feels that the
Winikers have taken this appeal in order to out-spend
her and wear her down into submission.
This is unfortunately one of those cases where
this Court should seriously consider an award of
appellate attorneys’ fees and double costs. Bell
moves for same, and requests an opportunity to submit
an affidavit of attorneys’ fees and costs.
CONCLUSION
For the foregoing reasons, Bell requests that
this Honorable Court affirm the judgment of the
Superior Court, strike those portions of the Winikers’
brief are not supported by record references, and
award her reasonable attorney’s fees and double costs.
43
Respectfully submitted, Kimberly Bell, By her attorney,
_________________________________ Richard D. Vetstein, BBO #637681 Vetstein Law Group, P.C. 945 Concord Street Framingham, MA 01701 (508) 620-5352 [email protected] Dated: December 2, 2013
1
CERTIFICATE OF COMPLIANCE
I, Richard D. Vetstein, hereby certify, pursuant to Mass. R. A. P. 16 (k), that the Appellee’s brief complies with the rules of court that pertain to the filing of briefs, including, but not limited to: Mass. R. A. P. 16 (a)(6) (pertinent findings or memorandum of decision); Mass. R. A. P. 16 (e) (references to the record); Mass. R. A. P. 16 (f) (reproduction of statutes, rules, regulations); Mass. R. A. P. 16 (h) (length of briefs); Mass. R. A. P. 18 (appendix to the briefs); and Mass. R. A. P. 20 (form of briefs, appendices, and other papers). _________________________________ Richard D. Vetstein, Esq.
ADDENDUM
2
ADDENDUM
MASSACHUSETTS GENERAL LAWS Chapter 211, Section 10. Frivolous appeals; costs and interest. If, upon the hearing of an appeal in any proceeding, it appears that the appeal is frivolous, immaterial or intended for delay, the court may, either upon motion of a party or of its own motion, award against the appellant double costs from the time when the appeal was taken and also interest from the same time at the rate of twelve per cent a year on any amount which has been found due for debt and damages, or which he has been ordered to pay, or for which judgment has been recovered against him, or may award any part of such additional costs and interest. Chapter 260, Section 21. Recovery of Land. An action for the recovery of land shall be commenced, or an entry made thereon, only within twenty years after the right of action or of entry first accrued, or within twenty years after the demandant or the person making the entry, or those under whom they claim, have been seized or possessed of the premises; provided, however, that this section shall not bar an action by or on behalf of a nonprofit land conservation corporation or trust for the recovery of land or interests in land held for conservation, parks, recreation, water protection or wildlife protection purposes.
MASSACHUSETTS RULES OF APPELLATE PROCEDURE Rule 16. Briefs. (e) References in Briefs to the Record. References in the briefs to parts of the record reproduced in an appendix filed with a brief (see Rule 18(a)) shall be to the pages of the appendix at which those parts appear. If the appendix is prepared after the briefs are filed, references in the briefs to the record shall be made by one of the methods allowed by Rule 18(c). If the record is reproduced in accordance with
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the provisions of Rule 18(f), or if references are made in the briefs to parts of the record not reproduced, the references shall be to the pages of the parts of the record involved; e.g., Answer p. 7, Motion for Judgment p. 2, Transcript p. 231. Intelligible abbreviations may be used. If reference is made to evidence the admissibility of which is in controversy, reference shall be made to the pages of the appendix or of the transcript at which the evidence was identified, offered, and received or rejected. No statement of a fact of the case shall be made in any part of the brief without an appropriate and accurate record reference. Rule 25. Damages for Delay. If the appellate court shall determine that an appeal is frivolous, it may award just damages and single or double costs to the appellee, and such interest on the amount of the judgment as may be allowed by law.
MASSACHUSETTS RULES OF CIVIL PROCEDURE Rule 52. Findings by the Court. (a) Courts Other Than District Court: Effect. In all actions tried upon the facts without a jury, the court shall find the facts specially and state separately its conclusions of law thereon, and judgment shall be entered pursuant to Rule 58. Requests for findings are not necessary for purposes of review. Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses. The findings of a master, to the extent that the court adopts them, shall be considered as the findings of the court. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions of law appear therein. Findings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or any other motion except as provided in Rule 41(b)(2).
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Rule 61. Harmless Error. No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.