MISC 09-391838

December 13, 2011

Sands, J.


Plaintiff filed its unverified complaint on January 15, 2009, pursuant to the provisions of G. L. c. 240, § 1-5, seeking to quiet title to property located on Shore Road, Douglas, Massachusetts (the “Disputed Parcel”). [Note 2] [Note 3] A case management conference was held on June 19, 2009. On July 17, 2009, Defendant filed his Answer to the Amended Complaint.

Defendant filed his Motion for Summary Judgment on July 29, 2011, together with supporting memorandum, Statement of Undisputed Material Facts, Opinion as to Title, and Affidavit of Ernest J. Lalumiere. On August 30, 2011, Plaintiff filed its Opposition to summary judgment motion, together with supporting memorandum and Appendix containing Affidavits of Louis Tusino, Tracy Sharkey and Paul J. Coutu. Defendant filed his Supplemental Response on September 12, 2011, together with Motion to Strike the Affidavit of Louis C. Tusino. A hearing was held on all motions on September 21, 2011, and the matter was taken under advisement. A decision of today’s date (the “Decision”) has been issued.

In accordance with the Decision, it is:

ORDERED and ADJUDGED that the Affidavit of Louis C. Tusino is hereby stricken.

ORDERED and ADJUDGED that the deed from Eleanor T. Lalumiere and Lucille Lalumiere to Defendant dated April 20, 1988, and recorded with the Worcester County Registry of deeds at Book 11298, Page 226, conveyed property (the “Deeded Parcel”) shown on “Plan of Property of Wallum Lake Terrace Shore Road, Douglas, Massachusetts” dated January 8, 1965 and prepared by Cullinan Engineering Co., Inc., also shown on “Plan of Land in Douglas, Mass. Surveyed for Michael E. and Jean M. Nelson” dated March 4, 1988 and prepared by Andrews Survey & Engineering, Inc., and the Disputed Parcel (as a part of the Deeded Parcel) also contains property with a width of approximately 13.5 feet. As a result, Wallum Lake Terrace, Inc. did not retain any of the Deeded Parcel to convey to Plaintiff.

ORDERED and ADJUDGED that Defendant’s Motion for Summary Judgment is ALLOWED.

By the court. (Sands, J.)


[Note 1] The 1988 Deed, as hereinafter defined, conveyed property to Michael Nelson and Jean Nelson. The summary judgment record indicates that Jean Nelson is deceased.

[Note 2] Plaintiff filed its Amended Complaint to Quiet Title on June 29, 2009, to include a more definite statement.

[Note 3] The Disputed Parcel was defined at oral argument as the parcel shown on the 2008 Plan (hereinafter defined), the parcel being 13.74 feet by 308.71 feet. The parties confirmed this definition in a telephone conference with this court on December 7, 2011. The balance of the Deeded Parcel (1146.73 feet by 13.74 feet, as hereinafter defined) is not in dispute and the parties agree that this is owned by Defendant. The case management statement defined the Disputed Parcel as a parcel 13 feet by 310 feet.