EDWARD PIRES v. IRENE E. PIRES and ERIC PIRES

Plaintiff Edward Pires (Edward) commenced Land Court case no 02 MISC 282083 on June 28, 2002, seeking a declaratory judgment, pursuant to G.L. c. 231A, § 1, concerning the rights of the parties in a certain parcel of registered land and buildings, known as and numbered 453, 471, and 479 American Legion Highway in Westport (Property), owned of record by Edward and Defendant Irene Pires (Irene) as tenants in common. Irene and Defendant Eric Pires (Eric) answered the Complaint on August 20, 2002.

Previously, on April 22, 2002 Edward commenced an action in the Bristol Division, Housing Court, Edward Pires v. Eric Pires, case no. 02-SP-00569, seeking possession and damages in the amount of $3,500.00 against Eric for non-payment of rent. On June 13, 2002, Edward filed a Petition in the Bristol Division, Probate and Family Court, Edward Pires v. Irene Pires and Eric Pires, case no. 02E 033 PP, seeking to partition the Property.

On May 12, 2004, Edward commenced a fourth action in the New Bedford District Court, Edward Pires v. Irene Pires and Eric Pires, case no. 02E 033 PP, seeking damages from Eric for use and occupation of the Property and for trespass to land, and seeking also damages for breach of contract from Irene.

By letter dated July 21, 2004, the parties, by their counsel, submitted a Request for Joint Interdepartmental Judicial Assignment, seeking to consolidate the related actions pending in the District Court, the Probate and Family Court, and the Housing Court with the Land Court action. The Chief Justice for Administration and Management issued an Order of Assignment on September 8, 2004, assigning the Chief Justice of the Land Court or her designee to sit as a justice of the Probate and Family Court Department for the purpose of hearing the Probate and Family Court case, but made no order regarding the cases pending in the District and Housing courts.

On March 2, 2005, the court took a view of the Property in the presence of counsel. Trial was held the same day in Dartmouth at Southern New England law School. Stenographer Barbara Milne was sworn to take the testimony. Testifying were Plaintiff Edward Pires and Defendants Irene Pires and Eric Pires. Exhibits 1; 1A-1O; and 2-34 were admitted into evidence and Chalk A was marked for identification.

On May 2, 2005, the parties filed a Joint Motion to Consolidate the District Court and Housing Court cases. The Chief Justice for Administration and Management issued a second Order of Assignment on May 10, 2005, assigning the Land Court judge to sit as a justice of the District Court Department for the purpose of hearing the District Court case and as a justice of the Housing Court Department for the purpose of hearing the Housing Court case. On May 7, 2009, Plaintiff filed a Post-Trial Memorandum. Defendants filed their Post-Trial Memorandum on June 24, 2009.

After careful consideration of all of the evidence, the court issued a Decision today, ruling that the Property shall be partitioned in kind so as to create house lots containing one and one-half acres of land, with the house lots containing the 453 and 471 houses going to Edward, the house lot containing the 479 House going to Irene, and the remaining land split equally between Edward and Irene. The court ruled also that the April 30, 2002 deed is not a product of undue influence, but is a breach of the 1987 Agreement by Irene. Lastly, the court ruled that Eric owes a total of $5,161.29 in unpaid rent.

In accordance with that Decision, in the matter of Edward Pires v. Irene Pires and Eric Pires, Land Court Department case number 02 MISC 282083, it is hereby:

ADJUDGED and ORDERED that the title to the property and buildings, known as and numbered 453, 471, and 479 American Legion Highway in Westport is held by Plaintiff Edward Pires and Defendants Irene E. Pires and Eric Pires as tenants in common. Edward holds an undivided 13/18ths interest, Irene holds an undivided 4/18ths interest and Eric holds an undivided 1/18th interest.

In the matter of Edward Pires v. Eric Pires and Irene E. Pires, District Court Department, New Bedford Division, case number 0433 CV 0547, it is hereby:

ADJUDGED and ORDERED that Defendant Eric Pires’s failure to pay rent from September 2001 to July 11, 2002, constitutes a violation of the tenancy. Eric owes a total of $5,161.29 in unpaid rent;

ADJUDGED and ORDERED that Defendant Irene E. Pires’s conveyance of a 1/18th interest in the Property to Eric in the April 30, 2002 deed constitutes a breach of her agreement with Plaintiff Edward Pires, dated July 2, 1987. Irene shall repurchase Eric’s 1/18th interest in the Property in order to fulfill her obligation to Edward under that agreement; and it is further

ADJUDGED and ORDERED that Plaintiff’s claim of trespass to land against Eric is DISMISSED.

In the matter of Edward Pires v. Eric Pires, Housing Court Department, Bristol Division, case number 02-SP-00569, it is hereby:

ADJUDGED and ORDERED that the Complaint is hereby DISMISSED. The claim for damages from nonpayment of rent has been determined by the District Court case and the claim for possession is moot as a result of Defendant Eric Pires’s 1/18th interest in the property.

In the matter of Edward Pires v. Eric Pires and Irene E. Pires, Probate and Family Court Department, Bristol Division, case number 02E 033 PP, judgment will issue upon final partition of the Property.

By the court (Trombly, J.).

Attest:

Deborah J. Patterson

Recorder

Dated: September 25, 2009