511 LAND HOLDINGS, LLC vs. NATALIE B. GALLIGAN, JONATHAN T. FEUER, CHARLES B. FEUER, ELISABETH L. FEUER, CHARLES I. BRINK, III, FREDERICK T. BRINK, JONATHAN C. BRINK, CHRISTOPHER A. BRINK, and GREGG DONOVAN

This action involves a dispute as to the ownership of an eight-foot-wide strip of land (the “Disputed Area”) that separates Plaintiff’s property from Defendant Gregg Donovan (“Donovan”)’s property. [Note 1] Plaintiff claims that a deed in its chain of title to its property was intended to convey the Disputed Area, but inadvertently failed to do so. As a result, Plaintiff now seeks to reform the allegedly defective deed and to acquire title to the Disputed Area.

Plaintiff filed its unverified complaint on December 16, 2013, bywhich it sought (a) to reform, pursuant to G. L. c. 185, § 1(k), a 1969 deed in its chain of title (defined, infra, as the 1969 Deed) so as to clarify that Plaintiff’s property includes the Disputed Area, and (b) to quiet title, pursuant to G. L. c. 240, §§6-10, to the Disputed Area; on January 17, 2014, Plaintiff filed an amended unverified complaint, which clarified Plaintiff’s prior causes of action and interposed two new claims seeking (c) title to the Disputed Area by adverse possession, and (d) an order directing that a shed (the “Shed”) allegedly encroaching on the Disputed Area be razed. A case management conference was held on February 20, 2014, on which date Defendants also filed their Answer to Plaintiff’s amended complaint, which included an affirmative defense alleging that Donovan had acquired title to the Disputed Area by adverse possession. On September 18, 2014, a status conference was held to discuss the status of discovery and the possibility of settlement. By order of the same date, the court set a briefing schedule for dispositive motions, which was later modified by agreement of the parties. On February 20, 2015, Defendants filed their motion for summary judgment, which was supported by a memorandum of law, a statement of undisputed material facts, an affidavit of Donovan (the “Donovan Affidavit”), and an appendix of exhibits. On February 24, 2015, Plaintiff filed its motion for partial summary judgment (as to all counts in Plaintiff’s amended complaint except for its adverse possession claim), which was supported by a memorandum of law, a statement of undisputed material facts, and an appendix of exhibits. [Note 2] A summary judgment hearing was held on all motions on the same day. At the close of said hearing, the court directed that the parties would have ten days in which to file reply briefs. Plaintiff did not file any reply brief. On March 4, 2015, Defendants filed their reply brief. At that time, the parties’ dispositive motions were taken under advisement.

Based upon the evidence in the summary judgment record, I find that the following material facts are not in dispute:

Plaintiff’s Chain of Title

1. By quitclaim deed (the “1943 Deed”) dated June 15, 1943 and recorded in the Suffolk County Registry of Deeds (the “Registry”) at Book 6040, Page 547, Peter J. Dempsey and Mary A. Pistorino conveyed to Frances W. Brink (“Frances”), John L. Shea, and Charles W. Mitchell, Trustees of the Richmond Trust (the “Richmond Trust”) [Note 3], five parcels of land (with buildings thereon) located at 511 East Fifth Street in South Boston. The lots conveyed by the 1943 Deed are shown on a plan of land (the “1905 Plan”) dated November 27, 1905 and recorded in the Registry at Book 3103, Page 273, which was prepared by William Kelly C.E. and is entitled “Richmond Estate”. On the 1905 Plan, three of the lots conveyed by the 1943 Deed are labeled as lots “2", “4", and “5" (respectively, “Lot 2", “Lot 4", and “Lot 5") [Note 4], the fourth lot conveyed by the 1943 Deed is labeled as lot “3" (“Lot 3") [Note 5], and the fifth is a 4’ x 4’ section (the “Chimney Space”) carved out of the southeastern corner of the lot labeled lot “1" (“Lot 1"), labeled “Chimney”. [Note 6]

2. In 1963, the Richmond Trust terminated by its own terms, upon which ownership of all Richmond Trust properties (including the lots conveyed by the 1943 Deed) vested in the beneficiaries of the Richmond Trust -- namely, Frances’s four children: Natalie, Charles I. Brink, Jr. (“Charles Jr.”) [Note 7], Jonathan C. Brink (a/k/a Michael Monroe (“Monroe”)) [Note 8], and Marguerite B. Feuer (“Marguerite”) [Note 9] (together, the “Richmond Trust Beneficiaries”).

3. In July of 1965, a new plan depicting the subject properties (the “1965 Plan”) was prepared by Walter A. Corsano, C.E. The 1965 Plan is dated July 15, 1965, is entitled “Subdivision Plan of Land - Boston, Mass. - South Boston District”, and was recorded in the Registry at Book 8334, Page 492 in connection with the 1969 Deed (defined, infra). On the 1965 Plan, the boundary between Lot 1 and Lot 2 is shown as being located 8.05 feet west of its depiction on the 1905 Plan, with the former lot line labeled “brick wall”. The 1965 Plan shows several new sublots carved out of the parcels depicted on the 1905 Plan, including lots labeled lot “1A” (which represents Lot 1, less the Disputed Area), lot “2A” (which represents Lot 2 plus the southern portion of Lot 3 excluded from Lot 3A), lot “3A” (which represents the northern portion of Lot 3 not included in Lot 2A), and lot “4A” (which represents Lots 4 and 5, combined) (respectively, “Lot 1A”, “Lot 2A”, “Lot 3A”, and “Lot 4A”). The 1965 Plan also shows the Shed, labeled “Wood Shed - To be razed”, which lies mostly within Lot 1A (near its northern border), which continues into the Disputed Area and ends at the lot line between the former Lot 1 and Lot 2. The 1965 Plan does not show the Chimney Space.

4. By quitclaim deed (the “1965 3A Deed”) dated August 9, 1965 and recorded in the Registry at Book 7974, Page 169, the Richmond Trust Beneficiaries conveyed Lot 3A to Henry R. and Mary Ann Rooney. [Note 10]

5. By quitclaim deed (the “1969 Deed”) dated November 28, 1969 and recorded in the Registry at Book 8334, Page 492, the Richmond Trust Beneficiaries conveyed to Paul M. O’Toole (“O’Toole”) Lots 2, 4, and 5, as well as the Chimney Space and the southerly portion of Lot 3 not conveyed pursuant to the 1965 3A Deed. [Note 11] The lots conveyed by the 1969 Deed are described with reference to the 1905 Plan, but the 1965 Plan is also referenced therein in a handwritten note just above the parties’ signatures; a copy of the 1965 Plan appears to have been interleaved between the two pages of the 1969 Deed in the Registry. The 1969 Deed is silent as to the different location of the lot line between Lots 1 and 2 between the 1905 Plan and the 1965 Plan. Frances did not join in the 1969 Deed (or enter into any separate document) specifically conveying her interest (discussed, infra) in the Disputed Area to O’Toole.

6. On December 30, 1982, O’Toole granted a mortgage (the “O’Toole Mortgage”) on Lots 2A and 4A (together, the “511 Property”) [Note 12] to The South Boston Savings Bank, which mortgage was recorded in the Registry at Book 10179, Page 92. The O’Toole Mortgage references the 1969 Deed as the source of title, but the metes and bounds description of Lots 2A and 4A in the O’Toole Mortgage is based upon the 1965 Plan -- and includes the 1965 Plan’s location of the lot line between Lots 1 and 2.

7. Through mesne conveyances from 1984 to 2013, title to the 511 Property was conveyed from O’Toole to Plaintiff via eight transfers of title. [Note 13] By foreclosure deed dated February 15, 2013 and recorded in the Registry at Book 51747, Page 69 (the “Plaintiff Deed”), 511 South Boston LLC conveyed title to the 511 Property to Plaintiff. On February 19, 2013, Plaintiff granted a mortgage upon the 511 Property to Endeavor Capital 140 Series LLC, which mortgage was recorded in the Registry at Book 51747, Page 73.

Defendants’ Chain of Title

8. By quitclaim deed (the “1947 Deed”) dated June 30, 1947 and recorded in the Registry at Book 6346, Page 412, Oliver D. Dalancey conveyed to Frances, individually, Lot 1, as shown on the 1905 Plan. [Note 14] On the 1905 Plan, Lot 1 is bounded to the south by Lot 4, and to the east by Lot 2, and the lot line between Lots 1 and 2 is labeled “centre of wall”.

9. By quitclaim deed (“1965 1A Deed”) dated August 9, 1965 and recorded in the Registry at Book 7974, Page 165, Frances conveyed Lot 1A (the “509 Property”) to James F. and Mary H. Gavin. [Note 15]

10. By quitclaim deed dated February 15, 2006 and recorded in the Registry at Book 39178, Page 70, Mary H. Gavin conveyed the 509 Property to herself, Sheila M. Gavin, and Johannah M. Gavin (together, the “Gavin Trustees”), as Trustees of the M.H.G. Realty Trust (the “Gavin Trust”). [Note 16] By quitclaim deed dated February 15, 2006 and recorded in the Registry at Book 39650, Page 310, the Gavin Trust conveyed the 509 Property to the Gavin Trustees individually. By quitclaim deed dated May 31, 2009, and recorded in the Registry at Book 45032, Page 244, the Gavin Trustees reconveyed the 509 Property back to themselves as trustees of the Gavin Trust.

11. On February 26, 2010, the Gavin Trust filed a complaint in the Land Court (Case No. 10 MISC 423584 (JCC)) (the “First Prior Action”) [Note 17] against Aces, Canton, and Capital Trust LLC (“Capital Trust”) [Note 18], seeking to quiet title to the Disputed Area on the grounds of adverse possession. Aces and Canton each filed answers to the complaint in the First Prior Action, respectively, on April 13, 2010 and April 15, 2010. On May 5, 2011, the parties to the First Prior Action filed a stipulation pursuant to which “the [First Prior Action] [was] dismissed with prejudice against all parties”.

12. By quitclaim deed dated March 2, 2011, which was recorded in the Registry at Book 47661, Page 207, the sole surviving Gavin Trustees conveyed the 509 Property to Donovan.

13. On February 12, 2012, Donovan filed a civil action in the Land Court (Case No. 12 MISC 459272 (JCC)) (the “Second Prior Action”) against Aces, seeking, in the alternative, to acquire title to the Disputed Area by adverse possession, a prescriptive easement over the Disputed Area, or a declaration that Donovan owned the Disputed Area. [Note 19] On March 16, 2012, Aces filed its answer. On April 12, 2012, the court issued a 30-Day Nisi Order (which, inter alia, noted that the parties had reported the case settled). On April 30, 2012, the parties to the Second Prior Action filed a stipulation of dismissal, pursuant to which the parties agreed “that all claims [were] dismissed, without prejudice, . . . and with all rights of appeal waived [emphasis in original].” Judgment of dismissal entered on the same date.

14. After this case was commenced, byfour quitclaimdeeds (together, the “Brink Deeds”) dated between December of 2013 and February of 2014, the sole heirs of Frances (i.e., the Richmond Trust Beneficiaries and their heirs) conveyed any/all remaining right, title, and interest that they held in Lot 1 (excluding the portion thereof representing Lot 1A) to Donovan. [Note 20] The Brink Deeds do not contain a metes and bounds description of Lot 1, which is described only by reference to the 1905 Plan, and specifically excludes Lot 1A (described by reference to the 1965 Plan). Because Lot 1A represents Lot 1, less the Disputed Area, by implication, the Brink Deeds purport to convey the Disputed Area to Donovan.

15. Notwithstanding the notation on the 1965 Plan that the Shed was “[t]o be razed”, the Shed was not actually razed. Donovan testified in his affidavit that the Shed, today, “is in fact a two- story garage/office building” -- thus implying that the existing structure today is the same structure as the Shed. [Note 21] Donovan further testified that “[a]t all times material hereto, [the Shed] was used and occupied by the owners of Lot 1 . . . and those claiming under them, and not by the owners of Lot 2 . . . .” Annexed to the Donovan Affidavit are several building permits [Note 22] and a certificate of occupancy for use of the Shed for “Garage & Sheet Metal MFG”. [Note 23]

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Summary judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. E.g., Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat’l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).

The sole issue in this case is whether Plaintiff or Defendants own the Disputed Area. While the parties each make competing adverse possession claims as an alternative to their record title claims, the case largely comes down to the question of whether the 1969 Deed should be reformed so as to confirm its conveyance of the Disputed Area. Plaintiff argues that the failure to include the Disputed Area was based on the mutual mistake of the parties to the 1969 Deed. As such, Plaintiff argues, the court should reform the 1969 Deed to specify that the 511 Property includes the Disputed Area. Plaintiff further argues that Donovan’s attempt to purchase the Disputed Area (after this case was commenced) was ineffective to convey to him title to the Disputed Area, since, Plaintiff claims, the grantors of the Brink Deeds themselves lacked title to the Disputed Area, and thus could not convey same to Donovan. Defendants, for their part, argue that reformation of the 1969 Deed would be improper, since, they claim, the 1969 Deed does not demonstrate any intent on the part of the grantors thereof to convey title to the Disputed Area. Further, Defendants claim, title to the Disputed Area now belongs to Donovan pursuant to the Brink Deeds. Plaintiff opposes this claim, arguing that the grantors of the Brink Deeds should be “estopped [by deed] to deny the validity of the 1969 conveyance that they or their predecessors made.”

Reformation of the 1969 Deed

Plaintiff rightly points out that a “basic principle governing the interpretation of deeds is that their meaning, derived from the presumed intent of the grantor, is to be ascertained from the words used in the written instrument, construed when necessary in the light of the attendant circumstances.” Sheftel v. Lebel, 44 Mass. App. Ct. 175 , 179 (1998) (citation omitted) (emphasis added). In most instances, if a deed appears to be unambiguous on its face, the courts will not look to extrinsic evidence to ascertain the intent of the parties thereto, but rather will consider only the four corners of the deed itself. E.g., Oldfield v. Smith, 304 Mass. 590 , 600 (1939).

However, where it is clear that there was a mutual mistake in the deed that subverted the true intent of the parties thereto, the courts will look to the attendant circumstances to determine what was actually intended. E.g., Town of Wales v. R. Tetreault Land Clearing, Inc., 67 Mass. App. Ct. 1120 , at *4 (2006) (unpublished Rule 1.28 Decision). Under such circumstances, the courts have broad power to reform deeds so as to effectuate the actual intent of the parties. E.g., Beaton v. Land Court, 367 Mass. 385 , 392 (1975). Nonetheless, reformation of a deed is appropriate only where proof of the mutual mistake of the parties thereto is “full, clear, and decisive”. Kidder v. Greenman, 283 Mass. 601 , 613 (1933). And, on the question of proof, “a completed instrument is evidence of great weight of the intention of the parties thereto and such evidence is not readily overcome by parol evidence of such intention . . . .” Id. at 614.

In the case at bar, Plaintiff seeks the reformation of the 1969 Deed so as to clarify that the parcel conveyed thereby in fact included the Disputed Area. Under the circumstances, several facts counsel against this finding. First, the grantors of the 1969 Deed -- although related to Frances, who, at the time owned the Disputed Area -- did not actually own the Disputed Area, and thus lacked the authority to have conveyed it in the 1969 Deed. For that reason, even if the 1969 Deed could be reformed to contain language including the Disputed Area, Frances would have had to have joined the deed as grantor of title to the Disputed Area. Plaintiff states that Frances did not do so “[f]or reasons that are unclear”, and suggests that this may have been an error on the part of the drafter of the 1969 Deed or a misunderstanding as to whether the 1965 Plan, byitself, was capable of conveying title to the Disputed Area. [Note 24] The fact that such circumstances are, as Plaintiff acknowledges, unclear is fatal to Plaintiff’s claim of reformation, as the evidence for the mutual mistake must be “full, clear, and decisive”. Kidder, 283 Mass. at 613.

Second, while Plaintiff characterizes the 1969 Deed as merely having mistakenly referenced the 1905 Plan, rather than the 1965 Plan, the metes and bounds description of the property conveyed thereby is clear and unambiguous. It not only specifically references the lots identified on the 1905 Plan, it also acknowledges and references the 1965 Plan (and thus, indirectly, the 1965 3A Deed, which conveyed Lot 3A). As such, the description of the land conveyed by the 1969 Deed cannot be characterized, as Plaintiff suggests, as a mere “scrivener’s error”. Rather, the 1969 Deed specifically acknowledged the fact that Lot 3A had been deeded out of the land owned by the grantors, and, on that basis, set forth a detailed description of property to be conveyed -- which did not include the Disputed Area.

Third, there is evidence in the 1965 Plan (which was apparently recorded in connection with the 1969 Deed) that, in fact, the grantors of the 1969 Deed may have conveyed exactly the land they may have intended to convey. Namely, the lot line set forth in the 1969 Deed tracks not only the line between Lots 1 and 2 in the 1905 Plan, but it is also identified on the 1965 Plan, and is labeled “brick wall”. Logically, in view of the apparent existence of this brick wall, the lot line as stated in the 1905 Plan would arguably serve as a more appropriate dividing line than a seemingly arbitrary new line located approximately eight feet to the west. Moreover, this new dividing line would result in the Shed being located across two separate properties. The 1965 Plan does note that the Shed was “[t]o be razed”, but the Shed’s continued existence even today (fifty years later) is stronger evidence of a lack of intent to do so than the notation on the 1965 Plan. [Note 25]

Fourth, while Plaintiff characterizes the Disputed Area as “useless” land, the evidentiary record does not support that conclusion. The Disputed Area is not landlocked, and thus could have been put to any number of uses, such as storage or merely as a right of way. Whatever the use might have been, the evidence in the record is insufficient to support Plaintiff’s claim that there was no use that Frances may have intended to make of the Disputed Area. Plaintiff argues that “[t]here is no evidence or suggestion” that Frances intended to retain the Disputed Area, and notes that Frances never appears to have used the Disputed Area after the 1969 Deed, and that the Disputed Area was not deeded out of Frances’s estate at the time of her death in 1972. However, such evidence falls far short of the sort of conclusive evidence that would be required to establish mutual mistake, which is Plaintiff’s burden to establish.

In sum, I find that there is not “full, clear, and decisive” evidence in the record to support Plaintiff’s claim of mutual mistake as to the intent of the 1969 Deed on the question of whether the Disputed Area was intended to be conveyed thereby. [Note 26] Kidder, 283 Mass. at 613. Even if such evidence had been proffered, the grantors of the 1969 Deed did not own the Disputed Area, and Frances failed to join the 1969 Deed to convey the Disputed Area, so it is not clear that reformation of the 1969 Deed (to clarify the intent thereof) would be of any effect to convey title to the Disputed Area.

In view of the foregoing, I find that Plaintiff is not entitled to judgment reforming the 1969 Deed to include the Disputed Area. Because Plaintiff is not entitled to the reformation of the 1969 Deed, I find that Plaintiff is also not entitled to judgment quieting title to the Disputed Area and declaring Plaintiff to be the owner of the Disputed Area free and clear of any ownership claim of Defendants or directing the removal of the Shed from the Disputed Area.

Having made the foregoing findings on Plaintiff’s claims, I find that Donovan has record title to the Disputed Area based upon the Brink Deeds. It remains to be determined whether, despite this record title, Plaintiff should be awarded title of the Disputed Area on the basis of adverse possession.

Estoppel by Deed

As noted, supra, after this action was commenced, Donovan obtained deeds (i.e., the Brink Deeds) from Frances’s descendants conveying any remaining right, title, or interest in the Disputed Area that they may have inherited when Frances died. Plaintiff acknowledges that the Brink Deeds do appear to convey record title to the Disputed Area to Donovan. Yet, Plaintiff argues that these deeds should be found to be ineffective to convey title to the Disputed Area since, Plaintiff claims (in apparent reliance upon receiving an order reforming the 1969 Deed), the grantors of said deeds lacked the authority to convey title to the Disputed Area. Thus, Plaintiff argues, the grantors of the Brink Deeds should be “estopped [by deed] to deny the validity of the 1969 conveyance that they or their predecessors made.”

The doctrine of estoppel by deed applies in circumstances in which:

a grantor conveys property by deed which, unknown to the grantee, the grantor does not own at the time of the conveyance, but which the grantor later acquires. In such a case, the grantor (and anyone claiming under him) is estopped from asserting against the grantee a claim of title to the property conveyed.

Zayka v. Giambro, 32 Mass. App. Ct. 748 , 751 (1992) (citations and footnote omitted). This doctrine “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.” Id.

An estoppel by deed can “arise[ ] only when the suit is upon the deed or concerning a right arising out of the deed, and is between parties or privies to the deed.” Robert v. O'Connell, 269 Mass. 532 , 536 (1930). Additionally, as this court has previously recognized, “estoppel by deed has generally been applied only to warranty deeds”, and maybe applied to quitclaim deeds only “in special circumstances”. Burchell v. Marine Lumber Co., 12 LCR 314 , 322 (Mass. Land Ct. 2004), aff'd sub nom. Conte v. Marine Lumber Co., 66 Mass. App. Ct. 505 , and rev. denied, 447 Mass. 1109 (2006). As the Appeals Court explained in Conte:

[i]n a quitclaim deed, the grantor's covenant is a restricted covenant . . . . He agrees to warrant the title granted or released, and nothing more. . . . To extend the covenant further, would be to reject or do away with the restrictive words of it, and to enlarge it to a general covenant of warranty . . . .

Conte, 66 Mass. App. Ct. at 512.

It is axiomatic that estoppel by deed can be applied only where there is a clear-cut grant. E.g., Midfirst Bank v. Love, 85 Mass. App. Ct. 1105 , at *1 (2014) (“The doctrine rests [ ] on the operation of covenants of title set forth in the deed.” (citing Zayka, 32 Mass.App.Ct. at 751 ) (Unpublished Rule 1.28 Decision). Here, however, the 1969 Deed, on its face, does not explicitly grant title to the Disputed Area. This fact is implicitly acknowledged by Plaintiff, since, if the 1969 Deed did grant such title, it would be unnecessary to reform it. Moreover, no party claims that the 1969 Deed was not an effective conveyance, or that the grantors thereof lacked the authority to make it. Rather, Donovan simply claims that the Disputed Area was not included in the scope of the grant.

In addition, the estoppel by deed that Plaintiff seeks to impose would be against different parties (i.e., Defendant Natalie; Barbara; Edward J. Joyce and Bank of America, N.A., as trustees of the Marguerite T. Feuer 1995 Trust; and Philip V. Swan, as trustee of the Michael Monroe Trust) than the grantors of the 1969 Deed (i.e., the Richmond Trust Beneficiaries). See Robert, 269 Mass. at 536. Indeed, only one of the grantors of any of the four Brink Deeds (Natalie) is even named as a party to this case. Thus, even if the court were persuaded by Plaintiff’s estoppel by deed argument, no order could be issued as against the grantors of the Brink Deeds who are not parties to this case. Furthermore, all of the deeds in the summary judgment record (including the 1969 Deed) are quitclaim deeds, to which the courts are loathe to apply the doctrine of estoppel by deed. See Conte, 66 Mass. App. Ct. at 512. Plaintiff has proffered no argument why any special circumstances are presented by the case at bar that would justify applying the doctrine of estoppel by deed.

For the foregoing reasons, Plaintiff’s estoppel by deed argument must fail; the instant facts simply do not present an example of the circumstances in which this doctrine would be applicable. Because Plaintiff’s argument that the 1969 Deed should be reformed to clarify that it effectively conveyed title to the Disputed Area fails, there is no grant of property that any party is denying, so Plaintiff’s “estoppel by deed” argument likewise fails. Even if there were a clear grant, Plaintiff improperly seeks to estop persons and entities who were not parties to the 1969 Deed (several of which are not parties to this case), which, on its face, granted title only to the property described therein (which did not include the Disputed Area), and only with quitclaim covenants. In sum, I find that Plaintiff is not entitled to an order estopping the grantors of the Brink Deeds from denying the effectiveness of the 1969 Deed to convey title to the Disputed Area.

Adverse Possession of the Disputed Area

By its third cause of action, as an alternative to its claim seeking reformation of the 1969 Deed, Plaintiff claims to have acquired title to the Disputed Area by adverse possession. Defendants’ Answer contains an affirmative defense alleging that Plaintiff should not be awarded title to the Disputed Area because, in fact, Donovan and/or his predecessors in title acquired title to the Disputed Area by adverse possession. Plaintiff argues that this defense is barred by claim preclusion, since, in the First Prior Action, Donovan’s predecessor in title stipulated that “the [First Prior Action] [was] dismissed with prejudice against all parties”. [Note 27]

As discussed, supra, after this action was commenced, Donovan acquired record title to the Disputed Area. As such, in his summary judgment brief, Donovan does not argue adverse possession, but rather that he now owns the Disputed Area outright pursuant to the Brink Deeds. Because (as all parties agree) Donovan has record title to the Disputed Area, it is not necessary to rule on the substance of his adverse possession claims, which are now moot. Likewise, it is not necessary to opine on whether such claims are barred by claim preclusion. However, Donovan’s undisputed allegations with respect to adverse possession do turn out to be relevant because they demonstrate that Plaintiff’s own adverse possession claims may ultimately fail. “A party claiming title to land through adverse possession must establish actual, open, exclusive, and nonpermissive use for a continuous period of at least twenty years.” Totman v. Malloy, 431 Mass. 143 , 145 (2000). “The burden of proof in any adverse possession case rests on the claimant and extends to all of the necessary elements of such possession. If any of the elements remains unproven or left in doubt, the claimant cannot prevail.” Sea Pines Condo. III Ass'n v. Steffens, 61 Mass. App. Ct. 838 , 847 (citations omitted), rev. denied, 442 Mass. 1112 (2004); Tinker v. Bessel, 213 Mass. 74 , 76 (1912) (“The acts of the wrongdoer are to be construed strictly and the true owner is not to be barred of his right except upon clear proof.” (quotation omitted)). In the Donovan Affidavit, Donovan stated that -- notwithstanding the notation on the 1965 Plan that the Shed would be razed -- in fact, the Shed was never razed. Donovan further stated that the Shed today is a “two story garage/office building” that, at all times relevant to this dispute, “was used and occupied by the owners of Lot 1.” Annexed to the Donovan Affidavit are several building permits and a certificate of occupancy for the Shed, which, Defendants claim, is further evidence of Donovan’s use of the Disputed Area. [Note 28] Moreover, tax records for the 509 Property (of which this court has taken judicial notice) indicate that it is taxed as a mixed-use residential/commercial lot, whose value is based, in part, upon the improvement of said land by the Shed, and that taxes upon the entire lot (including the Shed) are paid by Donovan, at least for as long as he has owned it.

The foregoing represent undisputed facts in the summary judgment record, [Note 29] which conclusively demonstrate that Plaintiff’s adverse possession claim will likely fail because Plaintiff cannot establish (at least) the element of exclusive use. [Note 30] Rather, the record indicates that Donovan and his predecessors in title have made use, at least, of that portion of the Disputed Area occupied by part of the Shed. At minimum, it appears that Plaintiff’s adverse possession claim is doomed as to the portion of the Disputed Area occupied by the Shed.

However, the summary judgment record contains insufficient facts to make a determination as to Plaintiff’s adverse possession claim with respect to the back portion of the Disputed Area -- i.e., the portion thereof located behind the Shed. Neither party addressed this issue in any respect. [Note 31] Thus, while it appears highly unlikely that Plaintiff will be able to establish the elements of adverse possession, this issue will have to be determined upon renewed dispositive motions or at trial.

Conclusion and Holding

Based upon the foregoing findings, the parties’ dispositive motions are hereby decided as follows. Plaintiff’s motion for summary judgment is hereby DENIED in all respects, with prejudice. Defendants’ motion for summary judgment is hereby ALLOWED in all respects. Claims 1 and 2 in Plaintiff’s amended complaint are hereby DISMISSED, with prejudice. Further, because, as found, supra, the Brink Descendants no longer have any right, title, or interest in any of the subject properties, this case is hereby DISMISSED as against them, with prejudice. The caption of this case is hereby amended to reflect such dismissal.

The remaining parties in this case shall appear for a status conference on Tuesday, June 23, 2015 at 11:00 A.M. to discuss how they wish to proceed (if at all) from this point forward -- to wit, whether they prefer to brief renewed dispositive motions solely on the issue of whether Plaintiff has adversely possessed any portion of the Disputed Area, or whether they wish to proceed to trial on that sole issue, which, when resolved, will enable the court to rule on Plaintiff’s remaining two causes of action.

Judgment to enter upon the resolution of all remaining matters in this case.