Home JAMES DOWD, as Successor Trustee under the will of RICHARD JOHNSON v. JUDITH STEBBINS, ROBERT G. JOHNSON, and KAREN NEWSOM v. DEREK C. JOHNSON and MEREDITH A. JOHNSON, Defendants-in-Counterclaim

MISC 356120

July 6, 2009


Trombly, J.


Plaintiff, James Dowd, as Successor Trustee under the will of Richard Johnson, commenced this action on October 9, 2007, seeking to partition, pursuant to G.L. c. 241, § 1, two parcels of real property with two dwellings, known as and numbered 15 and 19 Emmons Road in Bourne. Defendants, Judith Stebbins, Robert G. Johnson, and Karen Newsom, filed an Answer and Counterclaim on November 28, 2007. On December 17, 2007, plaintiff filed a reply to the defendants’ Counterclaim. Plaintiff claims that Richard Johnson held a one-quarter interest in the property as a tenant in common, that this interest is properly included in Richard’s probate estate, and that it is now controlled by plaintiff, as Successor Trustees of Richard’s estate. Defendants disagree, contending that Richard conveyed his interest to the BIJ Beach Trust and, therefore, was not the owner at the time of his death.

On November 28, 2007, defendants filed a Motion for Joinder of Persons Needed for Just Adjudication, seeking to join Richard’s children, Derek C. Johnson and Meredith A. Johnson, as defendants-in-counterclaim. The motion was argued before the Court (Trombly, J.) on December 17, 2007, and allowed, thus joining Derek and Meredith as defendants-in-counterclaim to this action. On January 30, 2008, defendants-in-counterclaim filed a reply to the defendants’ Counterclaim.

On April 13, 2009, plaintiff filed a Motion for Summary Judgment and a Memorandum in support thereof. Defendants opposed the motion on May 13, 2009. On May 19, 2009, the Court took a view of the Property in the presence of counsel. On May 21, 2009, plaintiff filed an Omnibus Motion to Strike (1) the defendants’ Memorandum of Law in Support of Defendants’ Opposition to Plaintiff’s Motion for Summary Judgment; (2) the defendants’ Statement of Material Facts; (3) the Affidavit of Judith Iris Stebbins; and (4) the Affidavit of Robert “Kip” G. Johnson. Defendants opposed the plaintiff’s Omnibus Motion to Strike on May 26, 2009. The motions were argued before the Court on May 26, 2009, and taken under advisement.

After careful consideration of all of the evidence, the Court entered a Decision today, ruling that the plaintiff does not have standing to bring this action.

In accordance with that Decision, it is hereby:

ADJUDGED and ORDERED that the plaintiff’s Motion for Summary Judgment is DENIED;

ADJUDGED and ORDERED that summary judgment is GRANTED in favor of defendants; and it is further

ADJUDGED and ORDERED that the complaint be, and is hereby DISMISSED.

By the Court (Trombly, J.).


[Note 1] If not specifically defined herein, each term carries the same definition employed in the Decision.