Plaintiffs, John D. Hamilton, Jr. and Andrew H. Cohn, as Trustees of the Oyster Pond EP Trust, et al., commenced this action on October 29, 2004, seeking to quiet title to a certain parcel of real property known as South Beach Ocean Front in Edgartown and declaratory judgment, pursuant to G.L. c. 231A, § 1, confirming their rights to use certain rights of way to the beach known as Wheldens Path, Pohogonot Road, and the Road to Short Point, which lie over certain parcels of real property owned of record by certain defendants. [Note 1]
On September 1, 2006, plaintiffs filed affidavits of, among others, Allen W. Norton, Donna Goodale, and Dean J. Hutchinson. On October 26, 2006, defendants, Jeffrey Flynn, Richard Keeler, and Patricia Post, as Trustees of the Pohogonot Trust (Pohogonot Trust) filed a motion to strike Exhibit 18 of the affidavit of Donna Goodale (Perlstein Letter) and a motion to strike the affidavit of Allen W. Norton. Plaintiffs opposed the motion to strike the Perlstein Letter on February 22, 2007.
On March 5, 2007, plaintiffs filed affidavits of Martin A. Loria and A. Richard Vannozzi, P.L.S. Simultaneously, plaintiffs opposed the Pohogonot Trusts motion to strike the affidavit of Allen W. Norton.
On April 13, 2007, the Pohogonot Trust filed a reply brief in support of its motion to strike the Perlstein Letter and a reply to the plaintiffs opposition to its motion to strike the affidavit of Allen W. Norton. Simultaneously, the trust filed motions to strike portions of the affidavit of A. Richard Vannozzi, P.L.S., Exhibits B and C to the affidavit of Dean J. Hutchinson, and the affidavit of Martin A. Loria.
On April 27, 2007, plaintiffs filed oppositions to the Pohogonot Trusts motions to strike portions of the affidavit of A. Richard Vannozzi, P.L.S., the affidavit of Allen W. Norton, Exhibits B and C to the Affidavit of Dean J. Hutchison, and the affidavit of Martin A. Loria.
The Pohogonot Trusts motions to strike were argued on February 1, 2007 and April 30, 2007, and are the matters presently before the Court. After considering the motions, it is hereby
ORDERED that the Pohogonot Trusts motion to strike the affidavit of Allen W. Norton be DENIED; this affidavit is relevant as probative to the issue of whether plaintiffs have rights to the Beach;
ORDERED that the Pohogonot Trusts motion to strike Exhibits B and C to the affidavit of Dean J. Hutchinson is DENIED IN PART; the Peters Thesis and Long Point Memorandum are admissible for the limited basis of showing the state of mind of Peters sources at the time the documents were created but will not be considered for the truth of the matters they assert;
ORDERED that the Pohogonot Trusts motion to strike the affidavit of Martin A. Loria be DENIED; this affidavit is expert testimony from a well-qualified expert in the field of real estate transactions and law and not, simply, conjecture as argued by the trust; and it is further
ORDERED that the Pohogonot Trusts motion to strike paragraphs 22-27, 30, and 31 of the affidavit of A. Richard Vanozzi, P.L.S. is ALLOWED IN PART and DENIED IN PART. Paragraphs 22, 23, and 27 clearly state legal arguments or are conclusory and must be stricken; the remaining sections are expert testimony and admissible.
The parties also contentiously argue the admissibility of Exhibit 18 of the affidavit of Donna Goodale, the Perlstein Letter. Pohogonot has made a motion to strike the letter as inadmissible hearsay. In order to qualify for the public records exception to the hearsay rule, a statement must be a record of primary fact, made by a public officer in the performance of a public duty. However, not all statements of a public record are admissible
expressions of opinion and making conclusions are not admissible in evidence as public records. Julian v. Randazoo, 380 Mass. 391 , 393 (1980). In the present case, the fact that the Perlstein Letter was attached to the will of Winthrop Norton and filed in Dukes County Probate Court does not qualify it for the public records exception to the hearsay rule. The letter is clearly opinion. Accordingly, it is hereby
ORDERED that the Pohogonot Trusts Motion to Strike Exhibit 18 to the Donna Goodale Affidavit is ALLOWED; this letter is inadmissible hearsay.
So Ordered
By the Court (Trombly, J.).
JOHN D. HAMILTON, JR and ANDREW H. COHN, as Trustees of Oyster Pond EP Trust, RICHARD L. FRIEDMAN, ALLEN W. NORTON, JUDITH A. NORTON, and MELISSA NORTON, as Trustees of the Quiet Oaks Realty Trust, ALBERT WHITE, TONI W. HANOVER, and SHAUNA W. SMITH, individually and as Trustees of the Quampacky Trust v. MICHAEL D. MYEROW as Trustee of Botar Realty Trust, the Rabor Realty Trust, and the Tarob Realty Trust, PAMELA KOHLBERG as Trustee of the Jobs Neck Trust, ANDREW KOHLBERG as Trustee of the High Road Realty Trust, JEFFREY FLYNN, RICHARD KEELER, and PATRICIA POST, as Trustees of the Pohogonot Trust, PAUL E. KONIG and JOANNE V. KONIG, as Trustees of the Paul E. Konig Revocable Living Trust and as Trustees of the Joanne V. Konig Revocable Living Trust, JOKASE LIMITED PARTNERSHIP, and SHORT POINT HOLDINGS, LLC