MISC 05-309237

September 19, 2008


Trombly, J.


This action was commenced by Wayne Kurker and Margaret Kurker (hereinafter “Plaintiffs”) on May 6, 2005, seeking to establish prescriptive rights over, and title by adverse possession to, certain real estate, in Barnstable, Massachusetts, owned of record by Stefan Seidner and Cynthia Seidner (hereinafter “Defendants”).

On September 15, 2005, Defendants filed Answers to Requests for Admissions and Answers to Plaintiffs’ Interrogatories. On December 12, 2005, the Plaintiffs filed a Motion to Strike the Defendants’ Responses and Revised Responses to Requests for Admissions, along with a Motion to Compel Production of Documents. The motions were argued on December 27, 2005 before the Court (Trombly, J.) and taken under advisement. By Order of the Court issued on January 11, 2006, both motions were allowed.

On April 18, 2006, Plaintiffs filed a Motion for Summary Judgment along with a Memorandum of Law and supporting Affidavits. The motion was argued on June 16, 2006 before the Court and taken under advisement. The same day, Defendants filed a Motion for Reconsideration of the Court’s allowance of the Plaintiffs’ Motion to Strike Defendants’ Responses and Revised Responses to Requests for Admissions, and a Motion to File Revised Responses to Plaintiffs’ Requests for Admissions. On June 27, 2006, the Plaintiffs filed an Opposition to Motion for Reconsideration. On July 20, 2007, the Court allowed in part Plaintiffs’ Motion for Summary Judgment and denied Defendants’ Motion for Reconsideration. However, judgment was not entered at that time due to the fact that several issues remained unresolved.

On July 5, 2007, Plaintiffs filed a Complaint for Civil Contempt along with a supporting Affidavit, alleging noncompliance by the Defendants with the Preliminary Injunction. A hearing on the Complaint for Civil Contempt was held on November 8, 2007 and the matter was taken under advisement. By Order and Judgment of the Court issued on April 28, 2008, Defendants were found to be in contempt and required to restore the property to its previous condition and to pay certain costs.

On June 4, 2008, Defendants filed an Emergency Motion for Stay of Judgment. On July 14, 2008, Plaintiffs filed an Opposition to the motion. By Order of the Court issued on July 16, 2008 the Motion for Stay of Judgment was denied.

On July 21, 2008, Plaintiffs filed a Motion for Entry of Final Judgment. On July 30, 2008, Attorney Marjorie Cooke filed an appearance on behalf of the Defendants. Plaintiffs’ Motion for Entry of Final Judgment was argued on August 4, 2008, and is one of the matters presently before the Court. On August 26, 2008, Defendants filed an Opposition to the Motion for Entry of Final Judgment, along with supporting Affidavits.

On August 20, 2008, Defendants filed a Motion to Reopen Record to Permit Filing of an Opposition to, and to Reconsider Ruling on, Plaintiffs’ Motion for Summary Judgment along with supporting Affidavits. On August 26, 2008, Plaintiffs’ filed an Opposition to this motion along with supporting Affidavits. The motion was argued on August 27, 2008, and is the other matter presently before the Court. [Note 1]


The Court has the clear authority to amend or rescind its decision in an action at anytime before a final judgment on that issue. See Caffyn v. Caffyn, 70 Mass. App. Ct. 37 , 43-44 (2007); Cataldo Ambulance Serv., Inc. v. City of Chelsea, 43 Mass. App. Ct. 26 , 28 n. 4 (1997); Kerr v. Palmieri, 325 Mass. 554 , 557 (1950). A decision is not a final decree, but merely a basis of reasoning for the forthcoming judgment, and the Court acts within its authority in manifesting a change of mind. Id. Thus, it is necessarily clear that this is an absolutely discretionary power of the Court. See id.; Phoenix Home Life Mut. Ins. Co. v. Brown, 49 Mass. App. Ct. 657 , 661 (2000).

Defendants argue that their former counsel acted negligently in his representation and litigation of the present action. Specifically, Defendants point to their former attorney’s untimely response to requests for admissions, and his failure to initiate any discovery requests or file opposition to the Motion for Preliminary Injunction or Motion for Summary Judgment. Nevertheless, the Court is not inclined to reopen the matter based solely on these grounds.

Generally, “…litigants are properly bound by the conduct of their attorneys.” See McIsaac v. Cedergren, 54 Mass. App. Ct. 607 , 612 (2002); Tibbitts v. Wisniewski, 27 Mass. App. Ct. 729 , 733 (1989). Only in extreme circumstances, in which the client acted prudently in response to attorney neglect, would the Court reconsider its decision in this way. Such is not the case, here. The former attorney’s representation of the Defendants’, while perhaps not diligent, is not sufficiently extreme for the Court to reconsider its prior decision. See Spiller v. Metropolitan Transit Authy., 348 Mass. 576 , 580 (1965)

Furthermore, it is not apparent to me that the actions of the former attorney were manifestly unreasonable. Although the absence of oppositions by the Defendants in the record to the Motions for Preliminary Injunction and Summary Judgment could be perceived as a failure by the attorney, taking advantage of every filing opportunity is not an accurate test of an attorney’s attentiveness. While many attorney’s may have filed opposition in these instances, undoubtedly some would have found good strategy in not making opposition, relying instead on oral arguments or, in the case of a preliminary injunction, acting in agreement that the matter at issue must be decided before developing the land at some expense. Similarly, discovery is not a necessary element in every case. This is a strategic consideration based on the circumstances of each case. I am not privy to this consideration of the former attorney and his clients in this case, and will not speculate in an attempt to reach a determination of the present matter.

Lastly, although the former attorney did not timely respond to requests for admissions, he did eventually respond without affecting the outcome of the case. In addition, he did make timely response to other discovery requests and appeared and argued soundly at every court date. More significantly, it is the opinion of the Court that the Defendants’ former attorney did not affect the Court’s decision in this case through his action or inaction. On the contrary, the Court notes that it found for Defendants on a number of issues.

The Court is persuaded by the Plaintiff’s argument that a client in a civil action is to some extent responsible for overseeing the work of his or her attorney. See McIsaac v. Cedergren, 54 Mass. App. Ct. 607 , 612 (2002); Tibbitts v. Wisniewski, 27 Mass. App. Ct. 729 , 733 (1989). An attorney is an agent of the client and no one is better situated to determine the effectiveness and compatibility of the attorney in serving that relationship, than the client. The Court cannot allow clients, dissatisfied with the outcome of their case, to re-litigate by calling into question the decisions of their lawyer, decisions that the client may have been instrumental in making. At the very latest, the Defendants became aware of the Summary Judgment Decision on November 8, 2007, but did not contest it until the present motion on August 20, 2008, over nine months later.

It is admittedly difficult to bind a client to the actions of his or her lawyer, especially where those actions may be grounds for a malpractice action. Lay persons hire attorneys because they possess the knowledge of substantive and procedural law necessary to effectively navigate the judicial system. In fact, the law often holds attorneys to higher standards than lay persons because of this knowledge. Thus, the Defendants understandably presumed the expertise of their former attorney and believed that he was proceeding in their best interest. Nevertheless, if their attorney was as deficient as the Defendants’ allege, they should have become aware of that fact and acted more expediently in correcting his errors or replacing him with an attorney who could. See Mullen Lumber Company, Inc. v. F.P. Assocs., Inc., 11 Mass. App. Ct. 1018 , 1019 (1981). Their status as non-attorneys and lay persons, or even their ignorance of the American legal system, is simply irrelevant. It is the role of the Court to decide the issues of the case and not to right perceived collateral injustices in the exclusive domain and charge of one party.

Furthermore, it is in the interest of fairness to both parties that this case not be reopened. This case has been before the Court for over three years. The Court’s Decision granting summary judgment was issued over a year ago and is still awaiting final judgment. It would be unfair to the Plaintiffs for the Court to have the parties re-litigate the merits through no fault of their own. Both parties have likely expended considerable time and money to date on this case. I will not require them to do so again.


In their Motion for Entry of Final Judgment, the Plaintiffs waive their claims to the remaining contested issues in this case and request leave of court to dismiss those issues. Specifically, Plaintiffs waive their claim of right over the area labeled “Gravel Drive*” on the Decision Sketch, attached hereto, to park vehicles on the Defendants’ property, and to pedestrian easement over the Defendants’ property other than over the established easements. I see no reason not to grant leave to dismiss these claims and proceed to final judgment.

Defendants argue that the Plaintiffs are not entitled to summary judgment because they have not established the boundaries of the easement over the “Gravel Drive **.” However, the Court has previously decided that Plaintiffs’ are indeed entitled to summary judgment on that issue and see no reason to modify or amend that Decision. The approximate location of the easement as found by the Court is shown on the Decision Sketch.

In the alternative, the Defendants’ seek Court permission to move the “Gravel Drive **” four (4) feet northward as depicted in their Pesce Plan and pursuant to Restatement (Third) of Property (Servitudes) §4.8(3) as adopted by M.P.M. Builders, LLC v. Dwyer. 442 Mass. 87 , 90-91(2004). However, the M.P.M. Builders, LLC case applies only to granted easements, and not prescriptive easements, and does not apply to this case. However, I strongly encourage the parties to come to an agreement regarding the best location of the easement and any construction that must occur.

Finally, I agree with Defendants that certain orders of the Plaintiff’s Proposed Final Judgment are unnecessary, overbroad, and vague. Therefore, I will not incorporate such language in the judgment to enter in this case.


For the foregoing reasons, the Court concludes that the Defendants have failed to persuade the Court to exercise its discretion and reopen the matter of summary judgment. The Court further concludes that the Plaintiffs’ request for leave to dismiss those claims still unresolved should be allowed. Accordingly, it is hereby

ORDERED that Defendants’ Motion to Reopen the Record be DENIED and it is further

ORDERED that Plaintiffs’ Motion for Leave to Dismiss be ALLOWED and the Plaintiffs’ Motion for Entry of Final Judgment be ALLOWED.

By the Court (Trombly, J.).


Deborah J. Patterson


Dated: September 19, 2008


[Note 1] On September 12, 2008, Defendants filed an Affidavit of John C. Hall to supplement their Motion to Reopen the Record. The Court has weighed this evidence in issuing today’s Order.