On February 7, 2003, Benedict Germaine (Germaine), Katherine M. Marcella, and Kathleen A. Marcella (the Marcellas)(collectively, plaintiffs), filed a complaint pursuant to G.L. c. 231 against defendants Eric Bleicken (Bleicken) and John Gomez, Jr. (collectively, defendants), seeking to establish title to certain parcels of land located in Plainville which Alfred A Marsella and Benedict Germaine had purchased from Marilyn Gomez in 1980. They subsequently subdivided the land into four lots, designated as Lots 37, 37A, 37B and 37C. Lot 37 was conveyed to Alfred A. Marsella, Lot 37A to Benedict Germaine, Lot 37B to Ronald R. Dyer and Ursula L. Dyer, and Lot 37C to Louis Domingos, Jr. and Colleen Domingos. Title to Lot 37 was then transferred into the names of Kathleen M. Marsella and Kathleen A. Marsella, the wife and daughter, respectively, of Alfred A. Marsella.. The complaint, as originally filed, sought to clear title only to Lots 37 and 37A because title to the other two lots was no longer in members of the Germaine or Marsella families. The attached plan delineates the four lots.
Defendants Eric Bleicken (Bleicken) and John Gomez, Jr. were each served properly with a summons and copy of the complaint, but neither filed an answer or other responsive pleading within the time allowed for the filing thereof. Both were defaulted by the court (Scheier, C.J.) pursuant to Mass. R. Civ. P. 55(a) and the court entered Judgment on December 16, 2003, declaring Germaine to be the holder of title to Lot 37A and the Marcellas to be the holders of title to Lot 37 (collectively the property), free from any claims of the defendants, their heirs, devisees, or legal representatives, and ruling also that plaintiffs had established their respective titles to the property by adverse possession against the defendants.
On July 13, 2004, Bleicken filed a motion for relief from judgment, together with a memorandum in support thereof and affidavits by Bleicken and his counsel. In his motion, Bleicken claimed that he is the owner of an undivided one-quarter interest in the property, including all four lots, having inherited it from his deceased mother. He further contended, citing Mass. R. Civ. P. 60, that the judgment must be set aside for reasons of mistake, inadvertence, surprise, or excusable neglect. In addition, he averred that the plaintiffs were guilty of fraud, misrepresentation, and other misconduct, and that such conduct required that he be granted relief in the form of an order setting aside the judgment. [Note 1]
Oppositions to the motion were filed by the plaintiffs and by Raymond Loughlin, the third party purchaser of Lot 37A, and the motion was argued and taken under advisement on August 10, 2004. In an order dated September 2, 2004, this court (Trombly, J.) denied the motion, finding that Bleicken had not met his burden of justifying his failure to file a responsive pleading, that he had not proven that plaintiffs and their counsel were guilty of acts which would justify relief under Mass. R. Civ. P. 60(b)(3), and that he had not demonstrated, in any event, that he had a meritorious defense to plaintiffs adverse possession or ouster claims.
Bleicken took an appeal from the September 2, 2004 order denying his motion, and his appeal was entered in the Appeals Court as Case No. 2004-P-1652 on December 13, 2004. The Appeals Court entered a Memorandum and Order Pursuant to Rule 1:28 on February 1, 2006, in which it reversed the order denying Bleickens motion for relief from judgment, ordered this court to enter an order allowing the motion as to so much of the judgment as relates to lots 37, 37B, and 37C, and remanded the matter to this court for further proceedings consistent with its memorandum and order. Germaine v. Bleicken, 65 Mass. App. Ct. 1652 (2006). As to Lot 37A, which had been conveyed to Loughlin after entry and recording at the Registry of Deeds of the original judgment, but prior to the filing of Bleickens motion, the Appeals Court also remanded the case, but with different instructions relating to Loughlins claim to be a bona fide purchaser, as will be seen later.
Upon receipt of the Appeals Court order, this court scheduled a status conference to be held on May 10, 2006, at which time counsel and the court could discuss what further proceedings would be necessary to get the case back on track. The conference was held on June 15, 2006, having been continued at the request of the parties. Also on that date, Bleicken filed an Answer and Counterclaim. Named as additional Defendants-in-Counterclaim were Alfred A. Marsella, one of the original purchasers of the property, and Louis Domingos, Jr., Colleen Domingos, Ronald R. Dyer, Ursula L. Dyer, and Raymond C. Loughlin, who by then were owners of three of the new lots.
An Answer and Counterclaim to Bleickens pleading was filed by Ronald R. Dyer and Ursula L. Dyer on July 17, 2006. Plaintiffs and Alfred A. Marsella filed a motion on July 18, 2007 seeking to dismiss Bleickens counterclaims numbered 1, 2, 7 and 8. Bleicken filed an opposition to the motion and a memorandum in support of his opposition on August 2, 2006. Bleicken also filed an answer to the Dyer counterclaim on August 14, 2006. Louis Domingos, Jr. and Colleen Domingos filed an answer and counterclaim on September 11, 2006, to which Bleicken responded with an answer on September 27, 2006.Oon January 22, 2007, Raymond C. Loughlin filed a motion, together with a memorandum in support thereof, in which he sought dismissal of Bleickens counterclaim and reinstatement of judgment in his favor.
Loughlins motion to dismiss counterclaim and for reinstatement of the judgment were argued and taken under advisement on March 23, 2007. The motion of the plaintiffs and Alfred A. Marsella to dismiss Bleickens counterclaims numbered 1, 2, 7 and 8 was argued and taken under advisement on April 3, 2007. At the hearing on April 3, counsel and the court conferred about the possibility of resolving the controversy through mediation and agreed to submit the matter to the Alternative Dispute Resolution program sponsored by the Real Estate Bar Association (REBA), formerly known as the Massachusetts Conveyancers Association. Unfortunately, the parties were unable to negotiate a settlement and the matter was again taken under advisement by the court. In an Order entered September 21, 2007, this Court (Trombly, J.) Denied Plaintiffs Motion to Dismiss Counterclaims 1, 2, 7, and 8 also Denied Loughlins Motion to Dismiss the Counterclaim and Reinstate Judgment in his Favor, finding that Bleicken had, in fact, stated a claim for which relief may be granted and that further discovery should be conducted by the parties to determine whether or not Loughlin was, in reality, a bona fide purchaser of his lot without knowledge of any irregularities which may have occurred on the part of plaintiffs and their counsel. The court then ordered the parties to initiate limited discovery on the issue forthwith.
In July and August of 2008, Motions for Summary Judgment were filed by Defendants-in-Counterclaim Louis Domingos, Jr., Colleen Domingos, Ronald R. Dyer, and Ursula L. Dyer contending that their respective titles to two of the lots were superior to that of Mr. Bleicken. Bleicken filed oppositions to the two motions, which were argued and taken under advisement on October 10, 2008. [Note 2] On April 15, 2009, this Court entered a decision allowing the Domingos and Dyer motions, finding and ruling that Bleicken has no claim to title or any other interest in the Domingos and Dyer lots, and that he is barred from making any such claims by the doctrines of adverse possession, ouster, laches, and estoppel by deed. The Court deferred entry of judgment at that time because of the newly filed Loughlin motion seeking reinstatement of the previously entered judgment.
Plaintiffs Benedict Germaine, Kathleen M. Marsella, Kathleen A. Marsella, and Alfred A. Marsella then filed yet another motion for summary judgment, with accompanying materials, on May 21, 2009. Bleicken filed oppositions to both motions, which were argued on June 4, 2009. It is the Loughlin and Germaine-Marsella motions which are the subject of this order. I will treat them separately.
Loughlins Motion for Summary Judgment
The Appeals Court decision vacating the default judgment and remanding the case to the Land Court stated, in part, that the present record before it does not allow us to evaluate Loughlins claim that he had no notice that the judgment was procured by a wilful [sic] misrepresentation by the plaintiffs counsel - in other words, that he is in fact a bona fide purchaser for value, who acquired his interest without notice that the judgment was procured by illicit means. The Court went on state that if Loughlin is able to establish (after reasonable opportunity for discovery by Bleicken) that he had no knowledge that the plaintiffs counsel induced Bleicken into inaction so as to obtain a judgment by default, the judgment may stand as to the lot purchased by Loughlin (Lot 37A).
Loughlin now contends that Bleicken has conducted little or no discovery since the Appeals Court decision and that he has produced no evidence to contradict Loughlins claim that he was, in fact, a bona fide purchaser when he bought Lot 37A. Loughlin admits that he knew when he purchased Lot 37A that an action had been brought in this court to clear title to the lot and that judgment had been entered in favor of the plaintiffs. He claims also that he has been prejudiced by Bleickens delay in asserting a claim to the disputed property and that he was not aware, when he purchased his lot, of the allegations set forth in Bleickens subsequent motion seeking vacation of the judgment. Specifically, Loughlin avers that he relied on the entry and recording of the Land Court judgment and that he was not aware at that time of Bleickens claim that he had been defrauded and induced by plaintiffs prior counsel not to assert his claim of an ownership interest in the property.
In his opposition to the Loughlin motion, Bleicken asserts that Loughlin has been able to provide no admissible evidence about what he knew at the time of purchase, that the facts and circumstances at least imply that Loughlin was aware of a title problem and purchased the lot in spite of it, and that there is a difference of opinion as to whether Loughlin purchased his lot for fair market value. For these reasons, Bleicken argues that the motion for summary judgment should be denied and the case set down for trial.
As a preliminary matter, two motions filed by Loughlin on May 20, 2009, must be dealt with. The first of these motions asked the court to deem certain facts admitted because they were set forth in the affidavit Loughlin filed with his motion for summary judgment and were not properly denied or responded to by Bleicken, as required by Land Court Rule 4. A review of the case file discloses that Loughlin is correct. The motion is allowed and that the following facts alleged in the affidavit are entitled to be admitted:
Loughlin is a real estate developer and believes that he paid fair market value for what was then an undeveloped piece of property.
In reliance upon the Judgment [previously entered in this case], Loughlin closed on his purchase of Lot 37A.
After Attorney Pollis [previous counsel for Germaine and Marsella] forwarded Mr. Bleickens Motion for Relief from Judgment to his attorney, Loughlin had an opportunity to review the Motion and supporting papers.
At no time prior to the filing of the Motion for Relief was Loughlin aware of the allegations set forth in his [Bleickens] pleadings.
Loughlin had no knowledge of or involvement in in Germaines counsels subsequent decision to move forward with the default judgment unbeknownst to Mr. Bleickens counsel.
Loughlin had no knowledge that the default was filed and granted contrary to an agreement between Germaines counsel and Bleickens counsel.
At the time he purchased the property, Loughlin was not on notice that Mr. Bleicken would be attempting to remove the default judgment, that Mr. Bleicken had any legitimate basis for expecting that the default judgment would be removed, or that Mr. Bleicken had any continuing interest in or claim on the property.
See Dziamba v. Warner & Stackpole, 56 Mass. App. Ct. 397 , 400 (2002). There is nothing in the record to substantiate Bleickens contention that Loughlin was less than forthcoming in his answers to interrogatories or that his answers and replies made it impossible for Bleicken to shoulder his burden of proof on the issue of whether Loughlin was a bona fide purchaser.
Loughlins second motion sought to strike certain portions of the affidavit of Bleickens counsel, Gregory Hession, and the corresponding sections of Eric Bleickens memorandum in opposition to Loughlins motion. Specifically, Loughlin contends that Exhibits E and F of Hessions affidavit, which purport to be appraisals of the property purchased by him, are not admissible at trial because Hession does not have the expertise to testify as the opinions set forth in them. In addition, Loughlin seeks to strike a portion of Bleickens answers to interrogatories in which he identifies a different appraiser than the one identified in Exhibits E and F, but does not later submit a supplemental answer, as he promised. This court agrees that Exhibits E and F must be stricken, as well as the corresponding portions of Bleickens answers to interrogatories. The salient fact remains that Loughlin paid $85,000 for a vacant lot.
The real issue in Loughlins motion is what did he know, and when did he know it ?. At first blush, it would appear that trial would be necessary on the case because of factual disputes. Bleicken seems to aver that Loughlin walked into this controversy with his eyes wide open and must pay the price. Loughlin, on the other hand, claims the he was a bona fide purchaser for value of Lot 37A and that any knowledge he may have had at the time was not sufficient to put his title to the land in jeopardy. This is the question the court is asked to resolve.
Also to be resolved is the question regarding which party has the burden of proof on the issue.
Blacks Law Dictionary defines a bona fide purchaser as [o]ne who has purchased property for value without notice of any defects in the title of the seller. One who pays valuable consideration, has no notice of outstanding rights of others, and acts in good faith. Blacks Law Dictionary, page no. 121, (Abr. 6th Ed. 1991.) With the unusual facts of the present case, Loughlin claims to be a bona fide purchaser (BFP) because, he contends, he purchased Lot 37A for valuable consideration ($85,000), had no knowledge of outstanding claims against the property, and that he acted in good faith when purchasing the property. As noted, Loughlin acknowledges that he had notice of the law suit seeking to eliminate Bleickens possible claims to have an ownership interest in the property. However, he asks the court to rule that because that action had already resulted in issuance of a judgment against Bleicken, his knowledge did not relate to outstanding claims. In his view, Bleickens claim had been eliminated by the judgment.
Bleicken disagrees with Loughlins interpretation of the situation, arguing that there are factual disputes and issues which make summary judgment inappropriate in this case. He claims, for example, that the chronology set out in Loughlins own summary judgment materials and affidavit imply that he did, in fact, have knowledge concerning the title problems of Lot 37A and purchased it regardless of them. He also argues that Loughlin refused to provide a value for the property in his responses to discovery requests, and further claims that the price paid by Loughlin ($85,000) is less than one-half of the fair market value which Bleickens expert appraiser assigned to the property. He concludes, for these reasons, that the matter must be decided after a trial, not on a dispositive motion, and that he should be allowed to make further discovery per Rule 56(f). This court disagrees.
This action was filed in February, 2003, and notice served upon Mr. Bleicken and the other named defendant at that time. Judgment entered in December of that year and was recorded at the Norfolk County Registry of Deeds. Loughlin then purchased Lot 37A in January. Bleicken did not file his motion seeking relief from judgment until almost seven months later.
In its decision vacating the judgment, the Appeals Court vacated the judgment as to Lots 37, 37B and 37C, the lots owned by Domingos, Dyer, Germaine and the Marsellas. It did not vacate the judgment as to Lot 37A, the parcel purchased by Loughlin, because, as it stated in its decision, the present record [did] not allow [them] to evaluate Loughlins claim that he had no notice that the judgment was procured by a wilful [sic] misrepresentation by the plaintiffs counsel - in other words, that he (Loughlin) is in fact a bona fide purchaser for value, who acquired his interest without notice that the judgment was procured by illicit means. The court went on to rule that the matter must be remanded for further proceedings in the Land Court to see if Loughlin could establish after reasonable opportunity for discovery by Bleicken that he had no knowledge that plaintiffs counsel had lulled Bleickens counsel into inaction, resulting in the entry of a default judgment. Failing that, the Appeals Court ruled, the judgment could stand as to the lot purchased by Loughlin, with Bleicken possibly being able to bring suit against Germaine for money damages.
Bleicken has had ample opportunity to conduct discovery in an attempt to prove that Loughlin had actual notice of the purported fraud and was, thus, not a bona fide purchaser. It is clear that he has been unsuccessful in this regard. Bleicken now contends that the burden of proof on the issue is on Loughlin, and that it is Loughlin who must prove that he is a bona fide purchaser for value. For this argument, he appears to rely on his interpretation of the Appeals Court decision. Once again, I do not agree. It is axiomatic that proving a negative is a very difficult task. In Mister Donut of America, Inc. v. Kemp, a case having to do with a leasehold interest, the Supreme Judicial Court stated that [u]nder G.L. c. 183, § 4, actual notice is ordinarily a question of fact, and a person claiming that another is not a good faith purchaser has the burden of proof. Knowledge of facts which would ordinarily put a person on inquiry is not enough. 368 Mass. 220 , 222 (1975); see also Richardson v. Lee Realty Corp., 364 Mass. 632 (1974). Clearly the burden is on Bleicken to prove that Loughlin was not a bona fide purchaser. It is also clear that Bleicken has been, and will be, unable to meet that burden.
A party moving for summary judgment in a case in which the opposing party will have the burden of proof at trial is entitled to summary judgment if [the moving] party demonstrates...that the party opposing the motion has no reasonable expectation of proving an essential element of that partys case. Kourouvacilis v. Gen. Motors Co., 410 Mass. 706 , 716 (1991). To defeat summary judgment, Bleicken has to allege specific facts which establish that there is a genuine, triable issue. He also has to support these facts with affidavits, not with mere pleadings and assertions of disputed facts. LaLonde v. Eisner, 405 Mass. 207 , 209-10 (1989); Community Natl. Bank v. Dawes, 369 Mass. 550 , 554 (1976). Since Bleicken has been unable to support his allegations with any credible evidence, Loughlins motion for summary judgment must be allowed. Simply put, Bleicken has produced no evidence to indicate that Loughlin knew about any possible fraudulent activities by plaintiffs prior counsel.
Germaines and Marsellas Motion for Summary Judgment
Plaintiffs Benedict Germaine, Kathleen M. Marsella, and Kathleen A. Marsella joined with defendant-in-counterclaim Alfred A. Marsella in filing a motion for summary judgment and accompanying memoranda and affidavits on May 21, 2009. In their motion, incorporating by reference the motions and memoranda previously filed by Domingoes and Dyer, Germaine and the Marsellas ask the court to rule that they have established their titles to the disputed property under the doctrines of adverse possession and ouster. They further contend that Bleicken is barred by the doctrine of estoppel by deed from claiming any interest in the subject property.
Bleicken filed an opposition to the Germaine-Marsella motion, incorporating and relying on the oppositions he had previously filed to the Domingoes and Dyer motions for summary judgment. He points out that Germaine and Marsella obviously knew they had a title problem, and specifically knew that Bleicken and John Gomez had interests in the property, because they approached both seeking deeds of those interests. [Note 3]
Adverse Possession and Ouster Claims
It is not necessary to repeat the facts of this case in order to consider these claims. They have been set forth in several previous orders. Suffice to say that Germaine and Alfred A. Marsella purchased the property from Marilyn Gomez on July 31, 1980. Between 1980 and 1983, they paid all real estate taxes, cleared and excavated the property, caused engineering and survey work to be performed thereon, subdivided the land into four lots, sold some of the individual lots, and began construction on a portion of the parcel. Lot 37C was sold to the Domingos on April 23, 1982 and Lot 37B was purchased by the Dyers in 1983. The activities on those lots by the Domingos and the Dyers were fully set out in the previous order of this court dated April 15, 2009 which allowed their motions for summary judgment and ruled that their titles were superior to that of Bleicken. From the time they sold Lots 37C and 37B, until the present, Germaine, the Marsellas, and their grantees, including Loughlin, have continued to treat the property as their own, and have even conveyed title to some of the parcels within the family. In 2002, Alfred A. Marsella conveyed Lot 37 to his daughter, Kathleen M. Marsella. At the same time, he caused plans to be prepared showing the designs of proposed septic systems, retention swales, and drainage pipes. Moreover, evidence has also been submitted demonstrating that Germaine and Marcella caused percolation tests to be performed on the land, prepared the land for development, and caused the subdivision plan to be submitted to and endorsed by the Planning Board. The plan was duly recorded, and records at the Plainville Town Hall and at the Norfolk County Registry of Deeds since 1980 have listed Germain, Marsella, and their grantees as the owners of the land.
Bleicken claims a fractional interest in the property through the estate of his mother. She, in turn, claimed an interest through the estate of her mother, who died in 1961. Neither took any steps over the years to assert their claims. Bleicken himself became aware of his possible interest in these four lots at least in 2003, when he was served with notice of this litigation. Although he engaged in communications with counsel for Germaine and the Marsellas, he did not file a formal pleading in the case until he filed a motion seeking relief from the default judgment which had been entered against him. Bleickens motion was denied by this court, a decision which was reversed on appeal. However, it is important to note that the Appeals Court order reversing the denial of Bleickens motion did not mean that he had title superior to that of the plaintiffs; rather, it was predicated on the ruling that Bleicken had been fraudulently induced by counsel for the plaintiffs not to file a pleading raising his claim. As stated by the Appeals Court, the case was remanded to this court so that [f]urther proceedings [could] thereafter determine on the merits the plaintiffs claim of title to those lots as against Bleicken. (Emphasis added). Several hearings have now been held on the merits.
A review of the record of the various hearings indicates to this court that Bleicken still has not demonstrated that he has a valid claim to ownership of the land at issue here. The actions of all of the plaintiffs and defendants-in-counterclaim have extinguished any claim Blaicken might have had under the estates of his mother, aunts and grandmother. Plaintiffs and defendants-in-counterclaim Loughlin, Germaine, and Marsella have proven their titles by adverse possession. In addition, their acts of dominion over the property are sufficient to establish that they have ousted Bleicken from the property.
Estoppel by Deed.
On the issue of estoppel by deed, Germaine and the Marsellas contend that Bleicken is estopped from claiming any interest in the property because his mother, under whom he claims his interest in the property, had previously conveyed away that interest into the chain of title which later came into ownership by Germaine and the Marsellas. Without again setting out the entire chain of title in detail, a brief narration might nevertheless be helpful.
The land at issue was formerly owned by William H. Follett. Folletts will, admitted for probate in 1918, provided that upon his death, a life estate in the property went to Alfred Weeman with the remainder interest passing to those children of Weeman living at his death.
Weemans three daughters conveyed their remainder interest to their father in 1926, at which time he became the owner of the entire fee interest. However, by the time Weeman died in 1955, he had remarried Edith Weeman. Since his estate was not probated, half of his interest in the property arguably passed to his three daughters upon his death while the other half passed to his new wife. Two of the daughters, Lois and Ellene, executed separate deeds conveying their interests to their other sister, Amie, in 1956. Amie died in 1958, at which time her interest in the property passed to her surviving husband, Harold Bishop. He, in turned, conveyed his interest to Amies daughter, Marilyn Gomez, and she, apparently believing she then owned the entire fee, conveyed her interest to Benedict Germaine and Alfred A. Marsella in 1980.
Ellene T. Bleicken, the mother of Defendant Eric Bleicken and the daughter of second wife Edith Weeman, died in New Hampshire 1991. Under the residuary clause of her will, which makes no reference to any land in Massachusetts, Eric Bleicken claims to have inherited any personal or real property which she possessed at the time of her death. Bleicken contends that the deeds under which all of the plaintiffs and defendants-in-counterclaim claim title did not convey a full fee interest in the property and that he is therefore not precluded by the doctrine of estoppel by deed from claiming an interest in the property. He specifically argues that the deeds from Lois and Ellene Weeman to Amie in 1956 conveyed only a partial interest in the property because the other half interest belonged to Weemans second wife (and Bleickens grandmother), Edith Weeman, that Ediths interest eventually passed to Bleickens mother, and that it eventually passed to him under that estate. I disagree.
Estoppel by deed is a doctrine whereby [a] grantor in a warranty deed who does not have title at the time of the conveyance but who subsequently acquires title is estopped from denying that he (or she) had title at the time of transfer and such after-acquired title inures to the benefit of the grantee or his successors. Blacks Law Dictionary, page no. 121, Abr. 6th Ed., 1991). It is to be noted that the deeds in 1956 from Ellene and Lois to their sister Amie did not purport to convey only a partial interest in the property. All parties thereto treated them as conveying the entire fee. [Note 4] Later, Bleicken supposedly inherited his interest from his mother, Ellene. However, there was nothing to inherit because Ellene had previously deeded her interest to Amie. In addition, even if there were a title flaw, Germaine and Marsella cured the defect by obtaining deeds from both Marilyn Gomez and John Gomez, thus closing the loop. It appeals to reason and a sense of what is equitable that, when a person manifests an intention to transfer title to property, an after-acquired ownership of that property will make good the imperfection of the original conveyance. Zayka v. Giambro, 32 Mass. App., Ct. 748, 751 (1992) (emphasis added).
For all of the above reasons, I find and rule that Bleicken has no claim to title or other interest in the properties currently or formerly owned of record by Raymond C. Loughlin, Benedict Germaine, Kathleen M. Marsella, Kathleen A. Marsella, and Alfred A. Marsella. A previous decision ruled that Defendants-in-Counterclaim Louis Domingos, Colleen Domingos, Ronald R. Dyer and Ursula L. Dyer had established title to their respective lots under the doctrines of adverse possession and ouster and that Bleicken was barred from claiming title thereto under the doctrines of estoppel by deed and laches. I now rule, based on the doctrines of adverse possession, ouster and estoppel by deed, that Bleicken also has no claim of title or interest to the parcels now or formerly owned by Raymond C. Loughlin, Benedict Germaine, Kathleen M. Marsella, Kathleen A. Marsella and Alfred A. Marsella, and that the motions for summary judgment of those parties must be, and are hereby, ALLOWED.
Judgment to enter accordingly.
Charles W. Trombly, Jr.
Dated: July 27, 2009
[Note 1] Bleicken had been served with a copy of the complaint on March 3, 2003. Both before and after that date, plaintiffs counsel had written to him, advising him that he might have an interest in the subject property, and advising him also to retain counsel. There were additional communications between counsel for plaintiffs and Bleicken, but no answer or other pleading was filed by Bleicken until he filed his motion seeking relief from judgment, which was filed on July 13, 2004, seven months after the judgment had been entered.
[Note 2] Defendant Raymond Loughlin filed his own motion for summary judgment on January 9, 2009, after the Domingos and Dyers motions had been argued and taken under advisement. Loughlins motion is one of the subjects of this order.
[Note 3] As noted earlier, John Gomez executed and delivered a deed conveying his interest to Germaine, but Bleicken has never done so.
[Note 4] The fact that Ellene and Lois may not have owned the complete interest at the time they conveyed to Amie in 1956 is not fatal because they eventually obtained that interest through the estate of their mother, Edith Weeman, at which time the doctrine of estoppel by deed became operative.