Home RJR PARA CORP. v. METCALF F. POND, his heirs, devisees and legal representatives, and JANET P.DINAN, her heirs, devisees and legal representative

MISC 06-320748

March 10, 2011


Long, J.


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At issue in this lawsuit is the ownership of a large tract of land in Medway and Milford, commonly known as the Pond Parcel. It was last owned of record by Metcalf Pond, who received it in a deed dated April 10, 1888 and presumably is now deceased. Plaintiff RJR Para Corp. contends that it has acquired title to that property by adverse possession. RJR conducted a search for Mr. Pond's heirs, found none, and moved for service by publication. That motion was allowed, publication occurred and, after no one responded and RJR submitted sufficient proof of its adverse acts, judgment awarding title to RJR by adverse possession was entered. Judgment (Jul. 18, 2006) (the "2006 Judgment"). Two individuals surfaced after entry of that judgment, both of whom claimed interests in the Pond Parcel. The first was Mr. Robert Dinan in his capacity as the son and legal guardian of Janet Payson Dinan, alleged to be a granddaughter of Metcalf Pond. The second was Mr. Edward Gately, an investor in "owners unknown" properties, [Note 1] who had located and paid Viola Payson (alleged to be the widow of James Payson, Jr., a Metcalf Pond grandson) $1,000 for "the right to raise and assert, on her behalf and/or his behalf, all of the rights, interests and privileges that [she] had or ha[s], as an heir of Metcalf F. Pond as a party/defendant in [this lawsuit]" and as the grantor of her August 26, 2006 deed of "all of [her] ownership rights and interests in the so-called 'Pond Parcel' ..." Assignment (Nov. 27, 2006). [Note 2] Mr. Dinan's motion to vacate the 2006 Judgment was allowed. Memorandum and Order on the Motions to Intervene and Obtain Relief from Judgment (Apr. 9, 2009). Mr. Gately's motion to intervene and vacate the 2006 Judgment was denied based on this court's view that he had, at most, an assignment of a due process right and that, as a matter of law, such rights are personal and not assignable. Id. See Blixt v. Blixt, 437 Mass. 649 , 661 (2002); Slama v. Attorney General, 384 Mass. 620 , 624 (1980); General Exchange Ins. Corp. v. Driscoll, 315 Mass. 360 , 363 (1944). The Dinan heirs subsequently entered into an agreement with RJR resolving all their claims (Stipulation and Consent to Judgment, Mar. 8, 2010) and the case went to judgment a second time, with RJR again being declared the owner of the property by adverse possession free and clear of any claims by any of the Metcalf Pond heirs. Judgment (Apr. 5, 2010) (the "2010 Judgment"). Mr. Gately's motion to stay this judgment was denied for lack of standing. (Order, Apr. 12, 2010).

Mr. Gately appealed the denial of his motion to intervene and, in a reported decision, the Appeals Court reversed the denial and remanded the matter "for further proceedings." RJR Para Corp. v. Metcalf Pond, 78 Mass. App. Ct. 362 , 366 (2010). As the Appeals Court held, unlike claims for personal injury, an assignment of a claim "for injury or damage to a property interest" is not prohibited. Id. at 365-366, citing Larabee v. Potvin Lumber Co., 390 Mass. 636 , 640 (1983). Mr. Gately's assignment thus gave him standing to assert Ms. Payson's claim of a violation of her due process rights. Id. at 365. Whether those rights have been violated, however, and whether Ms. Payson actually has a valid claim to any interest in the property, were not decided and are the subject of the remand. Id. [Note 3]

Mr. Gately has now filed an Answer and Counterclaim [Note 4] which RJR has moved to strike, contending, in essence, that the Answer and Counterclaim are procedurally premature. In RJR's view, Mr. Gately must first move to vacate the court's previous judgments and be successful in that motion before he can assert any substantive claims in this proceeding. Mr. Gately disagrees.


RJR's motion to strike raises a procedural issue with no real effect on the substance of the questions to be decided. As the Appeals Court held, Mr. Gately has standing to assert Ms. Payson's rights, if any, by virtue of the assignment. But if, as RJR contends, Ms. Payson had no interest in the Pond Parcel either because that interest went elsewhere or been abandoned, [Note 5] she had no rights, due process or otherwise, to be violated. [Note 6] Whether this issue is addressed through a motion to vacate the 2006 Judgment (which Mr. Gately has now made orally), a motion to vacate the 2010 Judgment (to which he was not a party, although it purports to bind "the heirs of Metcalf Pond," barring them from asserting any claims on the Pond Parcel), or through an answer and counterclaim makes no substantive difference. Whichever is invoked will require will require the same evidentiary proceedings. The rules of civil procedure make plain that "all pleadings shall be so construed as to do substantial justice." Mass. R. Civ. P. 8(f). I thus DENY RJR's motion to strike Mr. Gately's Answer and Counterclaim and construe it as a sufficient pleading both to state his position on the ultimate merits of the case and to reserve his right to assert that the previously entered judgments should be vacated. To prevail, however, he must prove that Ms. Payson had a valid property right to assign and that her due process rights were actually violated by RJR's inadequate search efforts. Once he does so, and only once he does so, does he have standing to vacate the previous judgments in this case and put RJR to its "adverse possession" proof once again. This case shall thus proceed in two stages. The existence and extent of Ms. Payson's interest in the Pond Parcel, and RJR's arguments that that interest, if any, has been abandoned or the right to assert it waived or estopped, shall be addressed first. If, but only if, Mr. Gately is successful in proving the existence and extent of Ms. Payson's interest in the Pond Parcel and RJR is unsuccessful in its defenses that Mr. Gately's right to assert that interest has been lost through laches or estoppel, shall the case shall proceed to the next stage - a re-examination of whether RJR has obtained title by adverse possession to the property. No such re-examination will be necessary, and the prior judgments shall stand without need of further proceedings, unless Mr. Gately prevails at the first stage.

Mr. Gately has stipulated that all discovery previously taken in this matter may be used in these proceedings to the same extent as if he had been a party from the beginning. The parties have until September 6, 2011 to take and complete any additional discovery they deem necessary on the "first stage" issues. A status conference shall take place at 11:30 a.m. on September 6, 2011 to confirm that discovery has concluded and schedule future events. In light of the Appeals Court decision, Mr. Gately may renew his motion for judicial endorsement of a memorandum of lis pendens if he so chooses.


By the court (Long, J.)


[Note 1] Affidavit of Robert Gately at 2 , p.3 (Nov. 2, 2006).

[Note 2] Mr. Gately was also the one who located Mr. Divan. The two entered into an agreement with respect to this litigation, the terms of which are not disclosed in the record.

[Note 3] Stated more precisely, the question is whether Ms. Payson's interest (if any) "had been foreclosed without due process by reason of inadequate notice." Id. at 365. The Appeals Court concurred with this court that "the plaintiff's efforts to uncover Pond's living heirs were inadequate," id. at 364, but neither it nor this court has ever determined whether a "due process" violation occurred with respect to Ms. Payson. As discussed more fully below, these are separate questions.

[Note 4] The answer denies RJR's claims to adverse possession. The counterclaim requests this court's declaration that Mr. Gately is "an owner of the Pond Parcel and RJR is not..." Answer and Counterclaim of Edward W. Gately at 4 (Jan. 20, 2011).

[Note 5] The materials thus far in the record indicate that Metcalf Pond was married, divorced, and remarried, and one or two in the Payson line (from whom Viola Payson's interest, if any, derives) were also married, divorced, and remarried. There is currently no evidence in the record as to how the Pond Parcel was addressed in these divorce proceedings, and the apparent absence of any reference to it in the Payson family's probates, inheritance tax returns and the like, coupled with evidence of their disclaiming any obligation to pay taxes on the property after being contacted by the town, at least facially suggests that a property interest in them either never existed or no longer exists. So does Ms. Payson's willingness to sell her interest in the property, if any, for only $1,000. I say "facially" because none of this has been the subject of an evidentiary proceeding at which a complete record was presented and its merits tested. All of this will need to be explored in such a proceeding before any findings or conclusions can be drawn.

[Note 6] RJR makes other arguments as to why (in its view) Ms. Payson's due process rights were not violated, and why (in its view) Mr. Gately cannot now assert them (e.g., arguments based on assertions of laches and estoppel). None were reached by the Appeals Court (whose holding was confined to the assignment issue) and I need not and do not reach their merits, if any, at this stage of the proceedings.