CITIES SERVICE OIL CO. vs. GENERAL DYNAMICS CORP.

Plaintiff, Cities Service Oil Company (Citgo), filed a complaint in Superior Court, Suffolk County, against defendant General Dynamics Corporation (General Dynamics), alleging that Citgo has a right of way across the defendant's registered land in Braintree, Norfolk County, (Lot F on Land Registration Plan 531-E), as set forth in Citgo's Certificate of Title No. 20438 issued by the Norfolk Registry Disrict of the Land Court dated December 23, 1936. Citgo alleges that General Dynamics is interfering with Citgo's right of way by placing a locked gate across said right of way and by depositing debris thereon from time to time, thereby blocking access from the plaintiff's property to Quincy Avenue. Citgo alleges that General Dynamics' right to use its land is subservient to Citgo's estate and that Citgo has an absolute right to use the right of way for access to and from Quincy Avenue.

Citgo's complaint asks that the court order General Dynamics to 1) either remove the gate, or at least allow Citgo, when it so desires, to open the gate separating the Citgo land from the alleged right of way; 2) remove any and all vehicles, equipment and debris currently on various portions of said right of way and to keep the same free of obstruction; and 3) allow Citgo and others desiring to gain access to and from the Citgo land to pass across said right of way.

The complaint further asks that General Dynamics be permanently restrained and enjoined from depositing materials along the right of way and from interfering with the passage of vehicles and/or personnel from the Citgo parcel to and from Quincy Avenue. The complaint asks for damages including, but not limited to, attorney's fees and other litigation costs.

General Dynamics' answer admits that it maintains a locked gate across the premises and has from time to time stored various materials, but denies that its actions interfere with any of Citgo's rights. General Dynamics defends on the grounds that 1) the complaint fails to state a claim upon which relief can be granted; 2) the case properly lies and should be removed to the Land Court and 3) that Citgo's right of way was extinguished when the United States of America was vested with fee simple absolute title to the premises by Declaration of Taking issued by the United States District Court for the District of Massachusetts on March 30, 1942.

General Dynamics' counterclaim alleges that it is the owner named in Certificate of Title No. 88974 issued by the Norfolk County Registry of the Land Court on April 30, 1970, and asks that the court issue an order that its Certificate of Title and plaintiff's Certificate of Title No. 20438 each be amended by striking therefrom all references to a right of way over Lot F, which right of way was extinguished by the federal taking.

General Dynamics moved to transfer the case to the Land Court and the motion was allowed. [Note 1]

The plaintiff and defendant submitted the case to the court on a statement of agreed facts. The statement includes seven exhibits, lettered A through G, which are incorporated herein by reference for the purpose of any appeal. The statement of agreed facts provides and the court so finds that:

1. Plaintiff Citgo is a Delaware corporation qualified to do business in the Commonwealth of Massachusetts and has a usual place of business in East Boston, Suffolk County, Massachusetts, where it operates an oil storage facility.

2. Defendant General Dynamics is a Delaware corporation qualified to do business in the Commonwealth and has a usual place of business in Quincy, Norfolk County, Massachusetts, where it operates a shipbuilding facility.

3. The alleged right of way in issue relates to a small, essentially triangular section of land (the "triangle") which is part of a larger parcel of land in Braintree, Norfolk County, owned by General Dynamics ("General Dynamics land"). The triangle, shown as Lot F on Land Court Plan No. 531E (Exhibit A), [Note a] has, as its westerly boundary, the easternmost end of Hill Avenue (formerly Hayward Avenue), a private way approximately 40 feet in width running in a generally westerly direction to Quincy Avenue. All but the westernmost ten feet of the 61.69 foot southerly boundary of the triangle constitutes a portion of the northerly boundary at the northwesterly corner of a large parcel of land owned by Citgo (the "Citgo land"). Except by way of the triangle, Hill Avenue does not abut the Citgo land.

4. By separate deeds dated September 30, 1902, recorded with the Norfolk County Registry of Deeds [Note 2] in Book 931 at Pages 313 and 314, respectively, John Swithin and Herman F. McIntire, Trustees, and Herman F. McIntire, individually, granted to American Tube Works, then owner of both the General Dynamics land and the Citgo land, two essentially rectangular parcels of land. Said parcels now include the westernmost ten feet of the triangle, each of said rectangular parcels being described as shown on a plan recorded therewith entitled "Plan of a portion of Hayward's Grove" drawn by H. T. Whitman and dated September 29, 1902. Both deeds contain the following phrase:

"Together with a right of way to and from Quincy Avenue over the Private Way, Lancaster Road and Hayward Avenue (collectively, Hill Avenue) as shown on said plan."

5. In 1903 American Tube Works was issued Original Certificate of Title No. 55, reflecting its ownership of a portion of the Genral Dynamics land, including the area which eventually became the triangle, and the Citgo land. Said certificate contained the following sentence:

"There is appurtenant to said land the rights of way as provided for in deed from John Swithin et al, trustees, to the American Tube Works, dated September 30, 1902 and recorded with Norfolk deeds, book 931, page 313."

Neither this certificate nor any other in Citgo's chain of title to the Citgo land contains language referring to the deed from Herman F. McIntire, individually, and recorded in Book 931, at Page 314.

6. a. By an instrument of taking filed with Norfolk Registry District of the Land Court as Document No. 7391, the Commonwealth of Massachusetts succeeded to the title of American Tube Works (see Transfer Certificate of Title No. 3419).

b. The Commonwealth, by deed dated September 10, 1919, and filed with said Registry District as Document 9903, granted to Massachusetts Oil Refining Co., Inc. the Citgo land shown as Lot A on Land Court Plan No. 531C referred to in said deed. Said deed contains no specific reference to any appurtenant rights of way. Transfer Certificate of Title No. 4451 was thereupon issued to Massachusetts Oil Refining Co., Inc., a Massachusetts Corporation, and contained the following reference:

"There is appurtenant to said land the rights of way as provided for in deed from John Swithin et al Trustees, to the American Tube Works, dated September 30, 1902, and recorded with Norfolk Deeds, book 931, page 313."

c. On December 31, 1919, Certificate 4451 was cancelled and Certificate 4525 was thereupon issued to Massachusetts Oil Refining co., Inc.

7. By deed dated May 21, 1920, and registered with said Registry District as Document No. 10704, the Commonwealth of Massachusetts granted to the Fore River Railroad Company a strip of land 20 feet in width running across the General Dynamics land to the northerly edge of the Citgo land, said strip being shown as Lot E on Land Court Plan 531E. As shown on Plan 531E, the southerly boundary of said strip touched the northeasterly corner of Hill Avenue (then called Hayward Avenue) and formed the triangle (Lot F); the General Dynamics land (Lots D and G) is shown as then owned by the Commonwealth of Masachusetts; and the Citgo land (Lot A) is shown as then owned by Massachusetts Oil Refining Company (see Document No. 10094, Transfer Certificate No. 4525).

8. a. By instrument dated May 21, 1920, the Commonwealth of Massachusetts, acting "by the Department of Public Works, Division of Waterways and Public Lands, with the approval of the Governor and Council acting under and by virtue of Chapter 325 of the General Acts of 1919," granted a right of way over the triangle to Massachusetts Oil Refining Company, as owner of what is now the Citgo land. The instrument granting the right of way was registered as Document No. 10705 (Exhibit B).

b. On October 1, 1920, Massachusetts Oil Refining Company's Certificate of Title 4525 was cancelled at its request and Certificate of Title 4955 was thereupon issued encompassing that parcel and additional parcels of land. Certificate 4955, referred to the deed from John Swithin to American Tube Works recorded in Book 931 at Page 313 and it also contained the following reference:

"There is appurtenant to the above described land a right of way over lot F shown on plan No. 531E, filed with Certificate No. 4770, in common with others entitled thereto, as set forth in Document No. 10705."

c. All subsequent certificates in the chain of title to the Citgo land, including Citgo's present transfer Certificate No. 20438 (see Lot D, Land Court Plan No. 7584c), (Exhibit c), contain substantially the language reciting the right of way as originally set forth in the John Swithin deed to American Tube Works as quoted in paragraphs 5 and 6 above. In addition, all subsequent certificates in the chain of title to the Citgo's land, including Citgo's present transfer Certificate No. 20438, contained the following language:

"There is appurtenant to the above described land a right of way over lot F shown on plan No. 531E, filed with Certificate No. 4770, in common with others entitled thereto, as set forth in Document No. 10705."

9. On March 30, 1942, the United States of America commenced land taking proceedings entitled United States of America v. 42.29 Acres of Land, More or Less, in the City of Quincy and Town of Braintree, Norfolk County, Massachusetts, Mathew P. Scullin, et al, Misc. Civil No. 6510 in the United States District Court for the District of Massachusetts by filing the original petition, a certified copy of a letter from the Secretary of the Navy, and the Declaration of Taking. On the same day, a judgment on the Declaration of Taking was entered, and the United States deposited in Court the sum of money anticipated as damages.

10. a. Both the Petition for Condemnation and the Declaration of Taking described the premises taken by metes and bounds. Said premises comprise what is now the General Dynamics land, including the triangle. Accompanying the Petition for Condemnation was a whiteprint entitled "Plan of Six Parcels of Land Situated in the City of Quincy and Town of Braintree to be Acquired. Bethelehem Steel Co.," dated February 24, 1942, which whiteprint showed the triangle as parcel D. Both Cities Service Oil Co. and Citgo were made parties to the proceeding.

b. The Petition also contained the following representations by the United States Government: that "the interest to be acquired is to be a fee simple absolute" [representation(2)]; "that the petitioner ... has determined that it is necessary and advantageous to the United States of America to acquire the land and all improvements thereon and all rights thereunto appertaining by condemnation under judicial process" [representation (3)]; and that "... allpersons and corporations herein named are made parties to this proceeding generally, to the end that all their right, title, and interest and estate, whether [sic] it may be, to all and singular, the hereinafter-described lands may be reached and divested out of them and vested in your petitioner, the United States of America" [representation (8)].

c. The petitioner prayed, "... to the end that the land hereinafter described, with all improvements thereon, may be acquired by the United States of America by condemnation in absolute fee simple, free and clear and (sic) discharged from all liens, encumbrances, servitudes and charges whatsoever, ..." that the Jury "... may make, ascertain and by their verdicts reform into Court, ... a faithful and impartial appraisement and valuation of said lands and of all rights, title and interest therein, including all lawful damages sustained by the owners thereof, and all other persons, corporations or associations or parties having any lawful rights or interests in said land,..." [prayer (2)] and that the Court shall cause "... the absolute and unqualified title in fee simple therein, free from all liens, encumbrances, charges and servitudes whatsoever, to vest in the United States of America" [prayer (3)].

11. On March 30, 1942, a Judgment on the Declaration of Taking was entered by the Court decreeing that the title in the land in fee simple absolute vest in the United States of America upon the filing of the Declaration of Taking and the depositing in the Registry of the Court of the amount of the estimated just compensation. Both these events took place on March 30, 1942.

12. On November 12, 1943, no order of notice having yet issued, an Amended Petition for Condemnation was allowed which Amended Petition, among other things, added persons to be notified who might have or claim to have some right, title or interest in and to the tract or parcel of land, or parts thereof.

13. On November 15, 1943, an Order of Notice issued from the Court with a return date of January 10, 1944. The parties to be notified included Citgo; and on December 29, 1943, the Marshall certified a return of service upon Citgo on December 18, 1943.

14. On January 10, 1944, an answer was filed by Citgo. In its answer Citgo stated, among other things, that it was operating a refinery on the premises adjoining the southerly side of the land taken and with respect to the triangle stated as follows:

"4. That as appurtenant to the said Refinery premises easements of way for the benefit thereof existed at the time of taking in and over a portion of the premises embraced in the taking, said portion being the small triangular parcel at the end of Hayward Avenue, lying between said Avenue, the Fore River Railroad right of way described in the Schedule A annexed to the petition, and the said Refinery premises of this Respondent, said triangular parcel being indicated as lot or section D on the Plan attached to the Declaration of Taking filed with the Petition in this case; that said easements of way were of great value to this Respondent in connection with the use and enjoyment of its Refinery Premises, and no compensation for the extinguishment thereof by said taking has been made to this Respondent."

The answer, which also dealt with the alleged taking of rights appurtenant to the Citgo land but not in issue in the instant case, further stated that Citgo was without information to admit or deny whether the amount deposited was fair and just compensation for the aggregate of the premises, rights taken and damages incurred by all persons having titles, rights, or interests or entitled to damages by reason of said taking. Citgo, therefore, neither admitted nor denied the same, and prayed that the Court determine the true aggregate of premises, rights and interests taken and the damages resulting therefrom and amount thereof to be awarded to it.

15. In the subsequent course of these proceedings the Petition and Declaration were amended at various times and in various matters not relevant herein and judgments were entered. On July 30, 1945, a Judgment Nunc Pro Tunc was entered on the amended Declaration of Taking dated July 30, 1945. In the course of these amendments the whiteprint dated February 24, 1942, had been replaced by a plan dated April 26, 1945, revised May 8, 1945, designated in those proceedings as exhibit "B". The triangle continued to be designated as Parcel D on this plan and throughout the course of these proceedings, the description and designation of the triangle in the amended Petition and Declarations remained unchanged. The Judgment contained the following sentence: "This cause is held open for such further judgments, orders, and decrees as may be necessary in the premises."

16. On November 4, 1949, the court entered an order that the compensation to be paid by the United States "for the taking of the full, free and unencumbered title to Parcels A, B, C, D and E ..." was $175,000.00; that the difference between this amount and the amount previously deposited should be deposited in the Registry of the court for the use and benefit of Mr. Scullin and the Commonwealth of Massachusetts as their interests may be made to appear; and

"3. That the said just compensation herein fixed and determined does not include and is not intended to include any compensation to which the Cities Service Oil Co. or Cities Service Refining Co. may be entitled, as the result of the taking of said Parcels A, B, C, D and E for the public use or of the taking or extinguishment of any rights, interests, or estates which they or either of them had or might have had in said lands at the time of the taking on March 30, 1942."

17. On November 21, 1949, the court entered an Order for Distribution of Monies Determined to be Just Compensation, said order reciting the court "being satisfied that no persons, parties or corporations other than (the Commonwealth of Massachusetts and Matthew P. Scullin) have any compensable interest in the land taken, or now have any interest in the funds on deposit, and the only parties in interest have hereto assented..."

18. An examination of the federal court docket reveals no further action taken by Citgo in the land taking proceedings.

a. On April 7, 1970, the United States petitioned the Land Court (case No. 531-S) stating 1) that it had acquired condemnation title to the land; 2) that included in one of the three parcels of registered land comprising the General Dynamics land was the triangle shown as Lot F on Land Court Subdivision Plan No. 531H; that a Certificate of Taking dated March 30, 1942, was filed as Document No. 89621 and noted on the Certificate of Title No. 3419 which was still outstanding in the name of the Commonwealth of Massachusetts.

b. Paragraph 5 of said petition stated that title to said registered land was subject to a "Right of Way" over Lot F granted to the Massachusetts Oil Refinery Co. by instrument dated May 21, 1920 and registered as Document No. 10705, and asked that the court enter an order that Certificate of Title 3419 be cancelled and a new Certificate of Title issue to cover the registered lots.

20. An Order of the Court dated April 29, 1970 and recorded with said Registry District as Document No. 307098, noted on Certificate No. 88973, (Exhibit E), ordered that Certificate of Title 3419 be cancelled and that a new Certificate be issued "subject to a right of way as set forth in Document No. 10705."

21. On April 30, 1970, Transfer Certificate of Title No. 88973 was issued to the United States covering the General Dynamics land. Said Certificate No. 88973 contained the following reference:

"Said Lot F is subject to a right of Way (sic) as set forth in Document No. 10705."

Said certificate also cotained the following language:

"There is appurtenant to the above described land rights of way as provided for in deed from John Swithin, et al, Trustees, to American Tube Works, dated September, 1902 and recorded with Norfolk Deeds Book 931, Page 313, so far as applicable."

The "above described land" refers to the General Dynamics land and the rights appurtenant thereto.

22. By deed dated April 30, 1970, the United States conveyed the General Dynamics land to General Dynamics. The deed described by metes and bounds three parcels of registered land, one of which was stated to include the triangle described as Lot F as shown on Land Court Plan No. 531H. The title reference of the grantor referred to the Judgment on the Declaration of Taking dated March 30, 1942, and Judgment Nunc Pro Tunc on Amended Declaration of Taking dated July 30, 1945, in the federal land taking proceeding. The deed recited that it was "without any covenants whatsoever, either express or implied." The deed contained no language referring to any easement, right of way, or other encumbrance upon the premises conveyed.

23. On April 30, 1970, Transfer Certificate of Title No. 88974 was issued to General Dynamics. Said Certificate was in all respects identical to Transfer Certificate of Title No. 88973 previously issued to the United States (Exhibit F).

The twofold issue before the court is whether Citgo's right of way was extinguished by the Federal Condemnation proceeding to which Citgo was a party and, if so, whether the right of way was reestablished when the United States petitioned for and was issued a new Certificate of Title which contained a recitation that locus was subject to said right of way.

For the reasons stated below, I rule that the eminent domain proceeding extinguished Citgo's right of way in 1945, but that, by its actions in 1970, the United States government reestablished it.

I. THE FEDERAL EMINENT DOMAIN PROCEEDING EXTINGUISHED CITGO'S RIGHT OF WAY.

It is undisputed that locus was subject to a registered right of way prior to the condemnation proceeding. Subsequent to the taking, all registered instruments and certificates of title affecting locus contain a reference to the right of way with the sole exception of the deed from the United States to General Dynamics.

Plaintiff argues that the eminent domain proceeding did not, as a matter of law, affect its right of way because the existence of the right of way was not inconsistent with the interest of the United States and because damages were neither assessed nor awarded on behalf of Citgo.

In effect, the plaintiff is attempting to collaterally attack the decision of the United States District Court for the District of Massachusetts and asking this court to go behind that decision thirty-six years after it was rendered.

The legal arguments raised by the plaintiff might well have been raised during the condemnation proceeding or on appeal from that decision, but are inappropriate here. This court sees neither reason nor justification for looking beyond what is apparent from the portions of the federal court record to which the parties have stipulated.

There is nothing before this court that suggests that anything less than a fee simple interest in locus was taken by the federal government pursuant to its original condemnation petition filed on March 30, 1942. Both the original petition and the Declaration of Taking recited a metes and bounds description of the condemned land which included the locus. The petition represented that the government sought "the absolute and unqualified title in fee simple free from all liens, encumbrances, charges and servitudes whatsoever..." The Judgment on the Declaration of Taking, entered March 30, 1942, decreed that title in the land in fee simple absolute should vest in the petitioner upon the filing of the Declaration of Taking and the depositing of funds in the Registry of the court.

By amendment to the original petition additional parties, including Citgo, were notified of the proceedings by Order of Notice issued November 15, 1943. Citgo filed a timely answer which set forth, inter alia:

"That as appurtenant to the said Refinery premises easements of way for the benefit thereof existed at the time of taking in and over a portion of the premises embraced in the taking ...that said easements of way were of great value to this Respondent in connection with the use and enjoyment of its Refinery Premises and no compensation for the extinguishment thereof by said taking has been made to this Respondent."

During the following year and one-half several amendments to the Petition and Declaration were made, but these amendments did not affect rights to the locus. Judgment Nunc Pro Tunc was entered on the amended Declaration of Taking on July 30, 1945, and the order for compensation issued on November 4, 1949.

Plaintiff relies on language in the Judgment Nunc Pro Tunc to argue that Citgo's rights were not determined in the condemnation proceeding. The Judgment states "This cause is held open for such further judgments, orders and decrees as may be necessary in the premises."

Plaintiff further argues that because the Order for Distribution of Monies did not include damages to Citgo that its rights were not adjudicated. These arguments are unpersuasive.

It is not for this court to speculate, as plaintiff urges, as to why the United States chose to take the locus in fee even if the right of way was consistent with the use to which the land was to be put. The portion of the Federal Court record that the parties have presented to this court clearly indicates that the United States sought and was granted a condemnation in fee simple absolute.

Similarly, this court will not speculate as to why Citgo neglected to either vigorously protest the taking of its right of way or pursue damages after the court's declaration issued. The facts indicate Citgo did neither.

I, therefore, rule that, by Judgment on the Declaration of Taking entered by the United States District Court for the District of Massachusetts on March 30, 1942, and the Judgment on Amendment to the Declaration of Taking As Amended entered May 21, 1945, the United States of America took a fee simple absolute interest in the locus, thereby extinguishing plaintiff's right of way.

II. THE RIGHT OF WAY WAS REESTABLISHED IN 1970 WHEN THE LAND COURT, ON PETITION OF THE UNITED STATES, ISSUED AN ORDER FOR A TRANSFER CERTIFICATE OF TITLE SUBJECTING LOCUS TO THE RIGHT OF WAY.

On April 7, 1970, twenty-five years after it had acquired title in fee to the locus, the United States, acting by and through the Administration of General Services, petitioned the Land Court for a new certificate of title. [Note 3] Pursuant to the government's petition, the court ordered the cancellation of the prior certificate of title outstanding in the name of the Commonwealth of Massachusetts and the issuance of a new certificate in the name of the United States of America. [Note 4]

The defendant argues that the United States could not, as a matter of law, subject its land to a right of way by including a recitation of the right of way in a petition for a transfer certificate of title. Even though the defendant's own transfer certificate recites that the locus is subject to the right of way in issue, the defendant now contends that it should not be bound by its certificate because the right of way was not legally created in 1970.

The defendant's position is that in order to create a right of way there must be an instrument of grant, setting forth the identity of the grantor and grantee and a description of the right of way. While this contention is generally true as to unregistered land, the argument fails to take into account that the land in issue is registered.

The purpose of the recording system in Massachusetts is to maintain records of private transactions that have effectively transferred title to property. The system establishes a priority for recorded instruments over unrecorded and subsequently recorded instruments but does not assure the legitimacy or legal effect of the instruments.

By contrast, under the registration system, registration of a document by the public official charged with that responsibility is the operative act to convey or affect the land. G. L. c. 185, §57.

When the United States petitioned the Land Court for a transfer certificate of title in 1970, it expressly represented to the Court that the locus was subject to a right of way and reference was made to the registered document by which the original right was created. This is not a situation wherein one is attempting to create an interest in land to benefit a third party who is a stranger to the transaction.

The original right of way was in fact created by express grant in 1920 when the instrument creating the right of way was registered (Document No. 10705). The registration of the Court order, issued pursuant to the United States' petition, which incorporates Document No. 10705 by reference, has the effect of creating the right of way by express grant. See Dubinsky v. Cama, 261 Mass. 47 (1927).

The defendant argues that even if the Court order and subsequent registration of the order could subject locus to a right of way defendant's certificate of title should be amended because the reference to the right of way was included by mistake.

While the Land Court is empowered to order the amendment of certificates of title pursuant to G. L. c. 185, §114 for the reasons set forth therein, including scrivener's error, the burden is upon the party asserting error to prove the same by a preponderance of the evidence. St. George's Ebenezer Primitive Methodist Church v. Primitive Methodist Church, 315 Mass. 202 (1943).

In this regard the defendant has failed to carry its burden inasmuch as it has presented no evidence to support its bare allegation of mistake. The United States, as owner in fee simple of the locus had the right to encumber its land. It also had the right, pursuant to the federal taking, to request a transfer certificate of title that was unencumbered, except as to the rights which accrued to the town of Braintree in 1959. For reasons unknown to this Court, the United States chose the former route. It certainly may be that the government was unclear as to whether or not the original right of way had been extinguished pursuant to the eminent domain taking. It is equally conceivable that the government recited the right of way in its petition because it was in use and an assumption was made that it had not been extinguished in the 1940's. In either case the defendant has not produced a scintilla of evidence that the recitation of the right of way in the government's petition was the result of a mistake or scrivener's error.

To the contrary, the government's petition was clearly not a mere copy of the former certificate of title. The petition recites on its face that the United States represents to the Court that locus was subject to two encumbrances, each of which is separately set forth, reflecting the government's desire to either perpetuate or revive the right of way. This isunlike a situation where one is asserting the existence of rights that do not appear on acertificate of title. Both the defendant's transfer certificate of title and the government's transfer certificate of title state that locus was subject to the right of way. The defendant had ample opportunity to inspect both certificates. The fact that defendant's deed from the government made no reference to the right of way does not affect the status of this registered land. G. L. c. 185, §57. Additionally, the land registration office was obligated, pursuant to G. L. c. 185, §66, to carry over the reference to the right of way onto General Dynamics' transfer certificate of title since it had not been simultaneously released or discharged.

For the foregoing reasons, I rule that locus is subject to a right of way as defined in Document No. 10705 and as appears on the face of defendant's transfer certificate of title and that defendant must cease obstructing the plaintiff's use of said right of way forthwith.

Judgment shall be entered for the plaintiff on its complaint and defendant's counterclaim shall be dismissed.

Judgment to enter accordingly.

exhibit 1