MISC 336193

June 1, 2009

Sands, J.


Plaintiff filed its Verified Complaint on December 28, 2006, seeking, pursuant to G. L. c. 41, § 81Y and G. L. c. 185, § 1(q), to recover from all Defendants the sum of $10,515.65 in unpaid consultant fees accrued in connection with Defendant Joseph H. Johnson (“Joseph”), Trustee of Peacha West Realty Trust’s (the “Trust”) application for approval of a definitive subdivision plan on property (“Locus”) owned by Defendants Taylor P. Donnelly (“Donnelly”), Joseph and Constance Dumas (the “Dumases”), Richard and Janet Gabree (the “Gabrees”), Richard and June Johnson (the “Johnsons”), and Edwin and Janet Carlstrom (the “Carlstroms”) (Defendants Donnelly, the Dumases, the Gabrees, the Johnsons, and the Carlstroms together, the “Owner Defendants”). An Affidavit of Jeffrey M. Walsh (employee of Graves Engineering, Inc.) was filed with the Complaint. Plaintiff’s Motion for Attachment of Real Estate was allowed on January 16, 2007, as to Locus, to be effective upon service of process on all the Owner Defendants. [Note 1] Donnelly and the Dumases filed Answers on January 18, 2007; [Note 2] the Gabrees filed their Answer on January 19, 2007; the Johnsons filed their Answer on February 14, 2007; and the Carlstroms filed their Answer on July 9, 2007. [Note 3] A case management conference was held on June 22, 2007. [Note 4] On May 1, 2009, this court issued a Fifteen Day Order with respect to the Trust, with a return date of May 15, 2009. On May 15, 2009, the Trust filed its Response to such order. A status conference was held on Friday, May 29, 2009, at which Plaintiff and Owner Defendants appeared, and the Trust failed to appear. In light of the Trust’s continued failure to participate in this matter, the Trust was defaulted on that date.

The Owner Defendants (but not the Trust) filed a Motion for Summary Judgment on February 8, 2008, together with supporting memorandum, Concise Statement of Legal Elements, and Affidavits of Joseph Dumas and Howard J. Potash, Esq. Plaintiff filed its Opposition and Cross-Motion on April 7, 2008, together with supporting memorandum, Statement of Material Facts, and Motion to Strike portions of the Affidavit of Joseph Dumas. A hearing was held on all motions on June 30, 2008, at which time the matter was taken under advisement. Plaintiff filed its Supplemental Memorandum on July 3, 2008, together with a copy of the Purchase and Sale Agreement between the Owner Defendants and the Trust (the “Agreement”). A decision of today’s date has been issued.

In accordance with that decision it is:

ORDERED and ADJUDGED that Plaintiff’s Motion to Strike is ALLOWED IN PART, as described below. Plaintiff argues that Joseph Dumas’ interpretations of the Agreement in paragraph 5 (the second and third sentence) should be stricken because the document speaks for itself. This court agrees. Plaintiff also argues that paragraphs 6, 20(2), 22, 24, and a portion of paragraph 15 (“which is not appropriate and we have received no relief.”) should be stricken because they give personal opinion. This court agrees. Furthermore, because the affiant does not state that the affidavit is on personal knowledge, all references to the other Owner Defendants in paragraphs 12, 13, and 23 will be struck. Finally, Plaintiff argues that paragraphs 18, 19, 20(1), and Exhibit D (Minutes of the meeting of the Board of Fire Engineers) should be struck because they contain inadmissible hearsay, and this court agrees. [Note 5] This court will also strike those corresponding portions of the Owner Defendants’ brief which rely on the stricken portions of the Joseph Dumas’ Affidavit.

ORDERED and ADJUDGED that the Trust and the Owner Defendants are each “applicants” as defined in the Rules and Regulations Governing the Subdivision of Land in the Town of Millbury (the “Rules and Regulations”) and thus liable, jointly and severally, for those fees incurred with respect to the Application for Approval of a Definitive Subdivision Plan (the “Application”) and to the Subdivision (as hereinafter defined) plan, in the amount of $10,515.65.

ORDERED and ADJUDGED that, pursuant to G. L. c. 231, § 6C, due to the absence of a clear breach or demand date with respect to the Owner Defendants, interest shall accrue at a rate of twelve percent per year beginning on the date this matter was commenced (December 28, 2006).

ORDERED and ADJUDGED that Plaintiff’s actions at the public hearings on the subdivision to be known as “Old Common Estates” (the “Subdivision”) do not estop Plaintiff from arguing that the Owner Defendants are “applicants” pursuant to the Rules and Regulations.

ORDERED and ADJUDGED that Plaintiff’s Motion for Summary Judgment is ALLOWED and the Owner Defendants’ Cross-Motion for Summary Judgment is DENIED.

By the court. (Sands, J.)


[Note 1] Service on all the Owner Defendants was completed on February 13, 2007.

[Note 2] A Suggestion of Death and Motion to Dismiss for Constance Dumas was filed on June 30, 2008.

[Note 3] An Amended Answer for Owner Defendants was filed on August 8, 2007. A Second Amended Answer for Owner Defendants was filed on August 23, 2007.

[Note 4] As a result of non-appearances of several Defendants (the Carlstroms, Donnelly, and the Trust) at the case management conference, this court issued a Thirty Day Nisi Order on June 25, 2007, returnable on July 25, 2007. All defaulting Defendants replied to the Order, and were allowed back into the case. Subsequent to filing a letter with this court on July 25, 2007, a copy of which was not sent to any other party, the Trust failed to appear before, contact, or file any documents with this court, including the summary judgment hearing. During this time, neither party filed a Motion to Default the Trust.

[Note 5] Owner Defendants argue that the statements made by Planning Board members at the Planning Board meeting should not be stricken because they are statements of a party Plaintiff, and this court agrees. The statements that are stricken were made by Chief Rudge of the Fire Department.