MISC 382199

December 29, 2008

ESSEX, ss.

Trombly, J.


This action was commenced by plaintiffs Philip Post, Linda Post, Daniel Payne, and Priscilla Payne on July 24, 2008, seeking to enjoin defendants Richard T. Angelo and Virginia A. Angelo from developing a certain parcel of real property known and numbered as 66R Mill Street, also known as 0 Iveson Street, in Middleton (the Property). Simultaneously, plaintiffs filed an application for preliminary injunction. On August 13, 2008, following a hearing, the Court (Trombly, J.) issued an order denying the application.

On August 22, 2008, defendants filed a motion to dismiss pursuant to Mass. R. Civ. P. 12(b)(1) and (6), for sanctions against attorney Thomas E. Beatrice pursuant to Mass. R. Civ. P. 11, and for award of attorney fees and costs. Plaintiffs filed an opposition to the motion on September 23, 2008.

On October 30, plaintiffs filed an affidavit of attorney Thomas E. Beatrice. On October 31, 2008, defendants filed a motion to strike the affidavit of attorney Thomas E. Beatrice.

The defendants’ motion to dismiss and motion to strike were argued before the Court on October 31, 2008, and taken under advisement. The Court issued an order today allowing the defendants’ motion to strike the Beatrice affidavit. Accordingly, the Court does not consider that as evidence in coming to this decision.

After reviewing the record before the Court, I find the following facts:

1. On September 6, 2006, defendants filed with the Middleton Inspectional Services/Building Department a form titled “Application to Construct, Repair, Renovate or Demolish a One or Two Family Dwelling & Issue a Certificate of Occupancy for a Residence and or Business.” On September 26, 2006, defendants filed a second form titled “Application for Permit to Demolish.” The building permits application proposed a certain development of the Property.

2. Around the time of the first filing, plaintiffs contacted the Middleton Building Commissioner Robert F. Comacho and other Middleton officials and told them of the existence of pending litigation concerning their claim to Iveson Street, specifically their denial of the right of others to use Iveson Street and their expectation that their claim would be adjudicated in a forthcoming Land Court decision.

3. The building commissioner failed to act on the building permits application within thirty days of having received it, as he was required to do.

4. On May 3, 2007, the Angelos commenced Angelo v. Murphy, Land Court Miscellaneous Case No. 346562, seeking to reverse the denial of their application for building permits and, a declaratory judgment that the application was constructively approved. On June 29, 2007, the Posts and Paynes filed a motion to intervene in the case.

5. On August 8, 2007, the Court (Lombardi, J.) issued an order denying the Posts and Paynes’ motion to intervene in Case No. 346562, Angelo v. Murphy, inter alia, on the grounds that their interests were already adequately represented in that case by the defendant Zoning Board of Appeals of the Town of Middleton.

6. The Posts and Paynes did not appeal this denial order.

7. Meanwhile, on May 4, 2007, The Posts and Paynes commenced Post v. Angelo, Land Court Miscellaneous Case No. 346639, seeking to affirm the alleged denial of the Angelos’ building permits application and to enjoin the Angelos from developing the Property.

8. On May 30, 2007, the Angelos filed a motion to dismiss Case No. 346639, Post v. Angelo. On August 8, 2007, the Court issued Order Allowing Motion to Dismiss and Judgment of Dismissal for lack of subject matter jurisdiction in that case.

9. The Posts and Paynes did not appeal this dismissal order.

10. On June 10, 2008, the Court issued a Decision and Judgment in Case No. 346562, Angelo v. Murphy, finding that Angelos’ application for building permits was constructively approved by the building commissioner pursuant to Middleton Zoning Bylaws § 235-9.B.

11. Attorney Thomas E. Beatrice has been counsel for the Posts and Paynes throughout the history of this controversy.


Dismissal of a claim is appropriate where a claimant fails to state facts sufficient for relief to be granted. A claim is sufficient “[…] unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Nader v. Citron, 372 Mass. 96 , 98 (1977). The Court determines the sufficiency of the claim by assuming that the allegations in the complaint, and the reasonable inferences that may be drawn from it, are true. Eyal v. Helen Broadcasting Corp., 411 Mass. 426 , 429 (1991); Innacchino v. Ford Motor Co., 451 Mass. 623 , 636 (2008). A showing is sufficient if it raises the “[…] right to relief above the speculative level.” Id.

In their complaint, the Posts and Paynes claim only a single count requesting a permanent injunction against the Angelos’ development of the Property. In support of this request, the Posts and Paynes make two factual allegations: (1) the Posts and Paynes maintain a septic system near the Property that is subject to damage by the construction; (2) the Angelos have begun demolition and construction through the use of heavy equipment, which will irreparably harm the Posts and Paynes and “[…] mock the entire judicial process […].”

The main thrust of plaintiffs’ most recent complaint is that they are entitled to injunctive relief. The party seeking a preliminary injunction must show “(1) a likelihood of success on the merits; (2) that irreparable harm will result from denial of the injunction; and (3) that, in light of the [moving party’s] likelihood of success on the merits, the risk of irreparable harm to the [moving party] outweighs the potential harm to the [nonmoving party] in granting the injunction.” Loyal Order of Moose, Inc. v. Bd. of Health of Yarmouth, 439 Mass. 597 , 601 (2003) quoting Tri-Nel Management, Inc. v. Bd. of Health of Barnstable, 433 Mass. 217 , 219 (2001); see John T. Callahan & Sons, Inc. v. City of Malden, 430 Mass. 124 , 131 (1999).

“An injunction may issue properly only if the judge concludes that the risk of irreparable harm to a [moving party], in light of his chances of success on his claim, outweigh[s] the [nonmoving party’s] probable harm and likelihood of prevailing on the merits of the case.” John T. Callahan & Sons, Inc., 430 Mass. at 131. In addition to saving the moving party from irreparable injury, a trial court may also order a preliminary injunction to maintain the status quo until the matter is adjudicated fully on the merits. See Thayer Co. v. Binnall, 326 Mass. 467 , 479 (1950).

In the present case, plaintiffs’ request for injunctive relief is insufficient on its face. In their complaint, plaintiffs alleged facts, which, even if taken as true, are too vague to show a likelihood of irreparable harm. Plaintiffs state that they have a septic system near the Property that is “[…] subject to destruction and damage related to the Defendants acts and omissions[]” and that defendants are utilizing heavy equipment in their development, which will cause harm to the plaintiffs. Such circumstances are incidental and necessary to almost any development project. It would be dangerous precedent to set such a low bar for risk to enjoin any construction work. Moreover, plaintiffs do not even explain how these circumstances will cause them harm. Certainly the demolition and construction of a single family home is relatively common place and unobtrusive construction work. It is more likely than not that most such developments are completed without harm to abutters. In fact, the entirety of the complaint is vague and does not rise above the level of speculation.

It is even important to note that the current controversy arises out of events dating back to 1996 and that the parties have been involved in at least three other cases, concerning the same issues, both in this Court and in the Superior Court. Never during that time has the Court issued an injunction against the Angelos’ development. Furthermore, in this Court’s order denying plaintiffs’ application for preliminary injunction, the Court found that they had not offered sufficient evidence to show that they would be subject to irreparable harm should the injunction be denied. Since that time, plaintiffs have advanced no argument nor produced evidence to improve that position.

Furthermore, I agree with the defendants’ reading of the complaint as a veiled attempt to inject that case with the new issue of dimensional and frontage requirements brought also in the plaintiffs’ pending appeal to the zoning board. This issue is not properly before this Court and will not be considered. [Note 1]

Defendants also argue that plaintiffs have not exhausted their administrative remedies, because an action against the issuance of a building permit is appropriately brought first as an appeal to the zoning board. Mass. R. Civ. P. 12(b)(1) and (h)(3). Wrentham v. West Wrentham Village, LLC, 451 Mass. 511 , 514 (2008); Morganelli, 7 Mass. App. Ct. at 481. Defendants’ argument presumes that plaintiffs have expressly and properly brought such a claim before the Court in this most recent action. This not being the case, the Court need not consider this argument.

The complaint is also noticeably deficient of claims underlying the request for injunctive relief, suggesting that this is just another in a long line of attempts by the Posts and Paynes to delay and harass the Angelos in the proper exercise of their rights. While I do not impose attorney fees and costs at this time, I will not require the Angelos to bear the financial burden of defending such claims in the future.

Defendants also seek sanctions against plaintiffs’ attorney Thomas E. Beatrice for his representation in all of the foregoing matters. While the Court is not now ready to sanction him, I strongly caution Mr. Beatrice that his continued counsel of his clients in a manner that results in further delay and harassment of the defendants in the exercise of their court-affirmed rights may well result in such penalty.


For the foregoing reasons, this Court concludes that the plaintiffs’ complaint is insufficient for failing to state a claim on which relief may be granted. The Defendants’ motion to dismiss is hereby ALLOWED; the Defendants’ motion for sanctions against attorney Thomas E. Beatrice pursuant to Mass. R. Civ. P. 11 is DENIED; and the Defendants’ motion for award of attorney fees and costs is DENIED. The issues of possible sanctions, attorney fees, and costs may be revisited at a later date.

Judgment shall issue accordingly.

Charles W. Trombly, Jr.


Dated: December 29, 2008


[Note 1] Without ruling on the issue of res judicata, the Court notes that the issue would have been more timely brought in the Case No. 346562, Angelo v. Murphy. That case arose out of the same 2006 application for building permits as the present case and reached a final judgment on the merits. This Court has previously determined that the Posts and Paynes were adequately represented in that case by the town. Had the Posts and Paynes motion to intervene in that case contained a meritous claim not pursued by the defendants therein, the Court likely would have found that the town was not so adequately representing the movants’ interest and allowed the intervention. The Posts and Paynes could similarly have raised the issue in Case No. 346639, Post v. Angelo, their first case against the Angelos. Although this case was ultimately dismissed on procedural grounds, the Posts and Paynes did not raise the violation of the zoning bylaws as a reason why the Angelos’ application should be denied, a seemingly obvious and critical argument, if true. The Court can only infer from these omissions that the claim has little merit.