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

MISC 06-320748

August 31, 2018

Norfolk, Worcester, ss.




Plaintiff RJR Para Corp. ("RJR") commenced this action to establish its title to approximately two acres of woodland on Alder Street in Medway and Milford (the "Pond Parcel"), which was last owned of record by the late defendant Metcalf F. Pond. Mr. Pond acquired title to the Pond Parcel by deed dated April 10, 1888. So far as the record shows, Mr. Pond's heirs effectively abandoned the Pond Parcel many decades ago — probably at or before the time it was cut-off by the construction of I-495 (whose roadway it abuts) in the 1950s and 1960s. RJR contends that it has title by adverse possession to the Pond Parcel, which it began using in 1979 at the time it acquired an adjacent approximately fifteen-acre parcel (the "RJR Parcel") on which it built its offices and manufacturing plant. Intervenor Edward Gately, who hunts for and invests in "owners unknown" properties, disputes RJR's claim to the Pond Parcel and claims that he has acquired its title from an heir of Mr. Pond.

There are presently two issues before the court. The first is whether Mr. Gately has standing to challenge RJR's adverse possession claim. The second is RJR's contention that Mr. Gately has perpetuated a fraud on the court in connection with these proceedings for which he should be sanctioned, and his claims barred.

An evidentiary hearing on both these issues took place before me. Based on the testimony and documents admitted at the evidentiary hearing, my assessment of the credibility, weight, and appropriate inferences to be drawn from that evidence, and as more fully explained below, I find and rule as follows.


RJR commenced this action against Mr. Pond and his heirs on March 21, 2006. RJR's efforts to identify and locate Mr. Pond's heirs were unsuccessful. After court review and approval, notice was therefore published in an appropriate newspaper and posted at the Norfolk and Worcester County Registries of Deeds (the property spans both counties). On July 19, 2006, Mr. Pond and his heirs were defaulted and judgment entered in RJR's favor, with the court finding that RJR had established fee simple title to the Pond Parcel by adverse possession and barring Mr. Pond's heirs from asserting any contrary claim. See Judgment (July 18, 2006).

Prior to the entry of that Judgment, Mr. Gately and his business partners Michael and Robert Sheehan, in connection with their partnership the Bainbridge Realty Trust, were attempting to obtain an access easement over the RJR Parcel for the benefit of their associate Harold Bemis, Sr.'s adjacent landlocked parcel of land (the "Bemis Parcel"). [Note 1] Mr. Gately learned of this case from the published notice and undertook his own search for Mr. Pond's heirs, intending to acquire their interests and intervene in this case to challenge RJR's claim to the Pond Parcel and assert his own. He hoped that by becoming involved in the case, he would gain leverage in his efforts to obtain an easement for the Bemis Parcel.

Mr. Gately ultimately identified three possible living heirs of Mr. Pond: Janet Dinan (Mr. Pond's granddaughter) of New Hampshire, Viola Payson (Mr. Pond's grandson's widow) of Maine, and Jennifer O'Kane (Mr. Pond's great-granddaughter) of Arkansas. Mr. Gately contacted all three about acquiring their interests in the Pond Parcel. Viola Payson deeded whatever interest she might have to Mr. Gately for $1,000 on August 23, 2006 and assigned him her rights in this action on November 27, 2006. Janet Dinan rejected Mr. Gately's offer and her son, as her guardian, moved to vacate the July 19, 2006 judgment entered against her in this case. Jennifer O'Kane also rejected Mr. Gately's offer, and he did not pursue her interest any further.

Relying on his deed and assignment from Viola Payson, Mr. Gately moved to intervene in this action, vacate the July 18, 2006 Judgment, and assert an interest in the Pond Parcel. In support of his motion, he submitted his own affidavit dated November 2, 2006 (the "Gately Affidavit") in which he identified Janet Dinan and Viola Payson as Mr. Pond's heirs but made no reference to Jennifer O'Kane. He also submitted the affidavit of Mr. Bemis dated November 6, 2006 (the "Bemis Affidavit") in which Mr. Bemis attested to his alleged use and observations of the Pond Parcel.

This court denied Mr. Gately's motion, ruling that Ms. Payson had, at best, a non-assignable due process claim, personal to her, which Mr. Gately thus could not acquire, and vacated the July 18, 2006 Judgment only as to Janet Dinan, who passed away soon thereafter. Janet Dinan's heirs and RJR entered into a settlement agreement pursuant to which judgment entered in RJR's favor on April 5, 2010, with the court again finding that RJR had established fee simple title to the Pond Parcel by adverse possession and barring Mr. Pond's heirs from asserting a claim to it. See Judgment (April 5, 2010). Mr. Gately appealed the denial of his motion to intervene. On appeal, the Appeals Court ruled that Ms. Payson's interest, if any, would be a property right which she could assign, and remanded the case for further proceedings in light of that ruling. See RJR Para Corp. v. Metcalf Pond, 78 Mass. App. Ct. 362 (2010).

Upon remand, this court bifurcated the case. See Memorandum and Order on Plaintiff's Motion to Strike Edward Gately's Answer & Counterclaim (March 10, 2011) at 4; Memorandum and Order on Pending Motions (September 24, 2013) at 5-6. The court would first decide Mr. Gately's standing, which would turn on the existence and extent of Viola Payson's interest in the Pond Parcel. After that, if Mr. Gately proved Viola Payson's interest and thus established standing, the court would re-examine RJR's adverse possession claim. Importantly, the burden of proving that interest was on Mr. Gately. See Memorandum and Order on Plaintiff's Motion to Strike Edward Gately's Answer & Counterclaim (March 10, 2011) at 4.

During discovery, RJR learned that Mr. Gately had identified Jennifer O'Kane as an heir of Mr. Pond and had exchanged correspondence with her about his desire to purchase her alleged interest in the Pond Parcel. Mr. Gately had not, however, previously disclosed her existence to RJR or the court. RJR subsequently moved for sanctions against Mr. Gately, contending that his failure to make that disclosure, which might otherwise have gone undetected and led to an erroneous judgment by this court, was fraud on the court warranting both sanctions and the dismissal of his claims..

An evidentiary hearing on both Mr. Gately's standing and whether his failures to disclose amounted to a fraud on the court then followed. [Note 2]


Mr. Gately bases his claim to the Pond Parcel on his deed and assignment from Viola Payson. His interest, if any, thus turns on the existence and extent of hers, which he has the burden of proving. Mr. Gately contends that Viola Payson inherited an interest in the Pond Parcel from her husband, James W. Payson, Jr., who was the grandson of the property's last owner of record, Metcalf Pond. [Note 3] I find that Mr. Gately has not met his burden of proving the existence and extent of Viola Payson's interest in the Pond Parcel. He has thus failed to prove an essential element of his claim, and judgment must enter against him. See Miramar Park Association, Inc. v. Town of Dennis, Massachusetts Supreme Judicial Court, SJC-12449, slip op. at 28 (August 30, 2018).

The facts regarding the Pond Parcel's title are these. The last record owner of the Pond Parcel was Metcalf F. Pond, who acquired the property by deed from Isabella Hall on April 10, 1888. At that time, Mr. Pond was married to Jessie Holbrook. Their daughter, Carabel/Carribelle Pond ("Carribelle Pond"), was born on April 29, 1892 and they subsequently divorced on June 9, 1910 on the ground of Mr. Pond's "utter desertion." Mr. Pond is now deceased. It unknown whether he remarried or had any other children, and there are no probate records for him in evidence. It is thus unclear who acquired his interest in the Pond Parcel. [Note 4]

If Carribelle Pond acquired some interest in the Pond Parcel from her father, the extent of her interest, and what ultimately happened to it, is uncertain. [Note 5] What is known is that Carribelle Pond married James W. Payson ("James Sr.") on April 8, 1916, their son, James W. Payson, Jr. ("James Jr."), was born on November 14, 1918, and their daughter, Janet Fay Payson (later known as Janet Dinan) ("Janet"), was born on November 13, 1919. It is also known that Carribelle Pond passed away on July 1, 1961. There are no probate records for Carribelle Pond in evidence, and both her death certificate and obituary indicate that her husband, James Sr., survived her. Assuming that she in fact had no will, it is unknown what happened to James Sr.'s intestate share of her interest in the Pond Parcel. Mr. Gately contends, but has not proven, that James Jr. and Janet acquired the entirety of their mother's interest in the Pond Parcel. The extent of their respective interests, if any, in the Pond Parcel, is uncertain. [Note 6]

James Jr. passed away on August 14, 1997. After the evidentiary hearing in this case took place, his will leaving all of his property to Viola Payson was admitted to probate. However, because the existence and extent of his interest in the Pond Parcel is uncertain, I cannot, and do not, find that Viola Payson inherited any interest in Pond Parcel from him. Because Mr. Gately's interest turns on hers, he has failed to prove his interest in the Pond Parcel.

Moreover, whether or not Mr. Gately has standing may ultimately be a moot question. RJR has already presented sufficient evidence of adverse possession. [Note 7] See Judgment (April 5, 2010); Judgment (July 18, 2006). Phase II of these remand proceedings would be Mr. Gately's opportunity to rebut this, if he has standing to do so. Mr. Bemis' testimony, as set forth in the Bemis Affidavit, is presumably Mr. Gately's best case. Given Mr. Bemis' credibility issues, shown by his testimony in the prior evidentiary proceeding, and various other issues with the account he gives in his affidavit, it is problematic that Mr. Gately will successfully reverse the court's prior finding that adverse possession has occurred. I make no final judgment of this at the present time, however, since Mr. Gately may have other evidence to present as well as the opportunity to cross-examine RJR's witnesses.

In brief, RJR's evidence of its adverse possession is this. It purchased the RJR Parcel in 1979 and believed that its land included the Pond Parcel. RJR then took actual possession of the Pond Parcel, paying taxes on it and using it adversely for more than twenty years by, for example, placing "no trespassing" signs on the property, having an old building on the property demolished and the debris cleared away, having soil and environmental testing conducted on the property, permitting third parties to hunt and cut firewood on the property, stopping people from dumping on the property, responding to offers to purchase the property, and making arrangements for water and sewer lines. So far as the record shows, RJR's use of the Pond Parcel was non-permissive and, until Mr. Gately moved to intervene in this case, unchallenged. There is no evidence that Viola Payson, or any other potential heir or devisee of Metcalf Pond, has been anywhere near the property for decades.

RJR has therefore shown continuous and "nonpermissive use which is actual, open, notorious, exclusive and adverse for twenty years," Ryan v. Stavros, 348 Mass. 251 , 262 (1964), sufficient for judgment to enter in its favor. See Lawrence v. Town of Concord, 439 Mass. 416 , 421 (2003); Mendonca v. Cities Serv. Oil Co., 354 Mass. 323 , 326 (1968); Judgment (April 5, 2010); Judgment (July 18, 2006). It is presently unknown whether Mr. Gately would be able to rebut RJR's adverse possession claim. If he does not, my ruling that he has no standing to make such a rebuttal would be a moot question. The parties may thus wish to have the merits of his challenge to RJR's adverse possession heard and decided before final judgment is entered.

Accordingly, I defer entering final judgment at the present time, which, at this stage of the case, would be based only on the prior Judgments' findings of RJR's adverse possession and Mr. Gately's lack of standing to challenge them, until I hear from the parties on whether they wish a "merits" trial or not. See Powers v. Falmouth Zoning Bd. of Appeals, 89 Mass. App. Ct. 1134 , 2016 WL 4070627 at *2 n. 9 (2016) (Mem. & Order Pursuant to Rule 1:28) ("[S]tanding need not be addressed ‘[w]here the merits have been fully briefed and the question of standing is not outcome determinative'" (quoting Mostyn v. Department of Envtl. Protection, 83 Mass. App. Ct. 788 , 792 n. 12 (2013))).

Fraud on the Court

The second issue presently before the court is RJR's claim that Mr. Gately has committed a fraud on the court for which he should be sanctioned, including the barring of his claims. "A 'fraud on the court' occurs where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party's claim or defense." Rockdale Mgmt. Co. v. Shawmut Bank, N.A., 418 Mass. 596 , 598 (1994) (quoting Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir. 1989)). Conduct constituting fraud on the court includes, for example, "creating and presenting false evidence in support of a claim or defense, destroying evidence and otherwise impeding the discovery process, offering false and misleading testimony, and falsifying past deposition testimony." See Rockdale Mgmt. Co., 418 Mass. at 599-600 (citations omitted). Whether a fraud on the court has occurred in a particular case is a "fact-specific determination" that requires a showing "through clear and convincing evidence that a party's fraudulent conduct is part of a pattern or scheme to defraud." See id. at 599-600 (emphasis in original).

RJR's claim that Mr. Gately has committed a fraud on the court is two-fold.

First, RJR contends that Mr. Gately has made false and misleading representations in this case as part of an "unconscionable scheme" to interfere with the adjudication of RJR's claim to the Pond Parcel in order to obtain an access easement over the RJR Parcel for the benefit of the Bemis Parcel. On this, I disagree.

I do not find that Mr. Gately and his partners' attempt to use this case to gain leverage in their efforts to obtain an easement for the Bemis Parcel was, as RJR argues, an abuse of the legal process or otherwise improper. I also do not agree with RJR's argument that Mr. Gately has mislead the court by not disclosing his or Mr. Bemis' interests in the outcome of this case. Mr. Gately sufficiently disclosed their interests in the Gately Affidavit, which provides:

Mr. Bemis and I own a parcel of land that is near the Pond Parcel[,] land owned by the plaintiff, RJR Para Corp., is between our land and the Pond Parcel[,] Mr. Bemis and I have been trying to locate a right of way to our land for about the past 18 months, [and] I decided to see if I could locate the heirs to the Pond Parcel and purchase it.

Nor do I find that Mr. Gately intentionally offered false or misleading evidence in this case. There are, as RJR argues, material inconsistencies between the Bemis Affidavit and Mr. Bemis's subsequent testimony which cast strong doubts on his credibility. In particular, Mr. Bemis' affidavit states that he has "observed and walked on the Pond Parcel since [he] was a child" and has "never seen any 'No Trespassing' signs or any other signs on the Pond Parcel," while his deposition testimony was that he had not been on the Pond Parcel since 1939 and has seen "no trespassing" signs posted there. Mr. Bemis thus may not be a truthful witness, but I do not find that Mr. Gately knew this when he submitted the Bemis Affidavit. Depositions and trials, where witnesses present their testimony in the context of formal court proceedings, often produce surprises, and this may very well have been such an instance. Similarly, the inconsistences between statements in the Gately Affidavit and Mr. Gately's testimony regarding who first showed him the published notice for this action, when he first became aware of this action, and when he acquired an interest in the Bemis Parcel, etc., evidence his lack of credibility, but I do not find that he deliberately gave false testimony with the intent of committing a fraud on the court.

RJR's second contention, that Mr. Gately intentionally concealed the existence of Mr. Pond's great-granddaughter Ms. O'Kane from the court, is more troubling. Mr. Gately's post-judgment intervention in this case was the result of his alleged acquisition of an interest in the Pond Parcel from one of Mr. Pond's heirs, who previously had been believed to be indiscernible. Before Mr. Gately filed his motion to intervene, he identified and contacted three potential heirs of Mr. Pond: Ms. Dinan, Ms. Payson, and Ms. O'Kane. The Gately Affidavit submitted in support of his motion describes his search efforts for Mr. Pond's heirs and his communications with Ms. Dinan and Ms. Payson, but contains no reference to Ms. O'Kane. During discovery, Mr. Gately failed to produce his correspondence to and from Ms. O'Kane regarding the Pond Parcel in response to RJR's document requests encompassing such communications. At his deposition, Mr. Gately initially testified that Ms. O'Kane's father, James Jr., had no children. He acknowledged Ms. O'Kane only after RJR's counsel confronted him with his own notes indicating that Ms. O'Kane was James Jr.'s issue.

In RJR's view, Mr. Gately purposely concealed Ms. O'Kane's existence from the court in order to inflate his interest in the Pond Parcel (i.e., the interest that Ms. Payson would have acquired by intestacy as James Jr.'s surviving spouse and conveyed to Mr. Gately would have been greater with Ms. O'Kane, James Jr.'s child from a prior marriage, out of the picture). Mr. Gately disagrees and claims that he did not initially mention Ms. O'Kane because he believed she had no interest in the property. Allegedly, Ms. Payson had told Mr. Gately that James Jr. devised all of his property to her and Mr. Gately believed her, despite the fact that no probate action regarding James Jr.'s estate had been filed and despite the fact that Mr. Gately reached out to Ms. O'Kane and offered to purchase her interest.

Because of the significance of Mr. Pond's heirs in this case, Mr. Gately's role in allegedly identifying them, and the fact that James Jr.'s will was not probated until after the evidentiary hearing, Mr. Gately's failure to disclose Ms. O'Kane earlier in the case is troubling. He could, and should, have been more candid. At the very least, his lack of candor demonstrates that he is not credible. I do not believe it rises to the level of "fraud on the court" sufficient for barring his claims completely, but it may warrant lesser sanctions. For now, however, I defer deciding whether, and what, sanctions may be appropriate.


Rather than enter judgment on the ground of standing, sanctions, or both, at this time, the court will hold a status conference on October 3, 2018 at 2:30 p.m. for a report from the parties on whether or not they desire to proceed to Phase II on a contingent basis (Mr. Gately's challenge to the merits of RJR's adverse possession, assuming he has standing to do so) and, if so, to schedule appropriate proceedings. If the parties would prefer to have final judgment entered solely on the basis of Mr. Gately's lack of standing, the court will enter judgment in accordance with this Decision. Evidence on the standing issues is CLOSED and will not be reopened.



[Note 1] On October 2, 2006, Mr. Bemis granted Mr. Gately and the Sheehans, as trustees of Bainbridge Realty Trust, an undivided half-interest in the Bemis Parcel with the understanding that they would convey that interest back to him if they did not obtain an easement. After unsuccessful discussions with RJR, Mr. Gately and the Sheehans conveyed their half-interest back to Mr. Bemis on July 15, 2011.

[Note 2] After the evidentiary hearing, Mr. Gately filed a post-trial motion in which he requested the court to admit into, and strike from, evidence certain exhibits and testimony. The motion is DENIED except as follows. Pages 55- 56 of Mr. Gately's June 10, 2011 deposition are admitted into evidence.

[Note 3] James W. Payson, Jr. passed away on August 14, 1997, leaving his third wife Viola Payson and his daughter from a prior marriage, Jennifer O'Kane. For much of this case, it was assumed that James Jr. died intestate. On July 31, 2014 — after the evidentiary hearing in this case took place — his will leaving all of his property to Viola Payson was admitted to probate. Viola Payson filed the probate petition after Mr. Gately contacted her about the will following his deposition at which he was questioned about Ms. O'Kane's potential interest in the property as James Jr.'s child. I find that he would not have done so, and the will would never have been probated, had Mr. Gately not been questioned about it.

[Note 4] Mr. Gately contends that Carribelle Pond acquired the entirety of the Pond Parcel from Mr. Pond. Given Mr. Gately's lack of candor throughout these proceedings (see the discussion below), I find that he is not credible and doubt both the thoroughness of his efforts to identify all of Mr. Pond's heirs and his representations to the court regarding the results of his search efforts. I thus am not persuaded that Mr. Pond neither remarried nor had other children, and am not persuaded that Carribelle Pond acquired her father's entire interest in the Pond Parcel. If Carribelle Pond acquired any interest in the Pond Parcel, Mr. Gately has not proven the extent of it.

[Note 5] RJR contends that to the extent Carribelle Pond had any fee interest in the Pond Parcel, she abandoned it by failing to establish her record title to the property upon the town of Medway's request that she do so, resulting in the abatement of the property's real estate taxes. There is no merit to this argument because a fee simple cannot be lost by abandonment. See Dyer v. Siano, 298 Mass. 537 , 542 (1937). It is, however, strong evidence that Carribelle Pond had no interest in the Pond Parcel.

[Note 6] Any interest that Janet had in the Pond Parcel has been acquired by RJR. After Janet became aware of this case from Mr. Gately, her son Robert Dinan, as her legal guardian, successfully moved to vacate, as to her, the July 18, 2006 judgment that had previously entered. In April 2010, after Janet had passed away, her heirs (her children) and RJR entered into a Stipulation and Consent to Judgment in which her heirs "consent[ed] to the [July 18, 2006] Judgment and waive[d] any and all claims to the Pond Parcel." Judgment subsequently entered on April 5, 2010.

[Note 7] See Affidavit of Richard Parrella (Mar. 21, 2006); Supplemental Affidavit of Richard Parrella (Nov. 8, 2006); Affidavit of Paul Trufant (May 21, 2005); Affdavit of Paul McManus (May 24, 2005); Affidavit of Carlo Molinari (September 29, 2005); Affidavit of Joseph W. Lesiak, Jr. (May 18, 2005); Affidavit of Wayne Vinton (May 20, 2005) & the excerpts from the depositions of Carlo Molinari, Wayne Vinton, Paul Trufant, Paul McManus, Richard Parrella and Harold Bemis attached as Exhibits to Plaintiff's Opposition to Motion of Edward W. Gately for a Stay Pending Appeal (February 18, 2010).