MISC 16-000217

April 20, 2018

Essex, ss.



Plaintiffs Ann Yarnell and Robert S. Yarnell (Plaintiffs) [Note 1] initiated this case on April 19, 2016, seeking to determine the rights of the parties in a right of way (ROW) adjacent to property at 33 Buchanan Circle in Lynn (Property). [Note 2] Plaintiffs claim the ROW is a private right of way located on their property, and that Defendant the City of Lynn (Defendant or City) improperly exercised its power of eminent domain in taking the ROW. [Note 3] Plaintiffs further allege that neighbors, employees of Defendant's various agencies, and members of the public trespass on the ROW.

Defendant filed several motions to dismiss pursuant to Mass. R. Civ. P. 12(b)(1) and (6). Defendant's first motion to dismiss, filed pursuant to Mass. R. Civ. P. 12(b)(1) on January 8, 2017, was denied. The parties then filed several discovery-related motions. Plaintiffs moved for an extension of time to complete discovery, and Defendant moved as follows: to stay discovery, to stay Plaintiffs' first request for production of documents, and to strike Plaintiffs' first set of interrogatories. At a hearing on these motions held on September 27, 2018, the court allowed Plaintiffs' motion for extension of time. The remaining discovery issues were resolved by Defendant's in-hand delivery to Plaintiffs at the hearing of the requested documents, and representation that interrogatory responses were forthcoming within the next few weeks. Accordingly, Defendant withdrew its pending discovery motions.

Defendant also filed three additional motions to dismiss in court at the hearing, which this court treats as one combined motion to dismiss asserting different theories. Defendant argues the case should be dismissed for lack of standing, failure to add necessary and indispensable parties, and because the action is barred by the applicable statute of limitations. [Note 4]

At the September 27, 2018 hearing, the court also heard argument on Plaintiffs' motion for reconsideration of the court's September 6th, 2017 order (September 6th Order), in which the court ordered it would only hear from Plaintiff Robert Yarnell in writing or at hearings, or from his legal counsel, because he is the sole record owner of the Property. The court advised Ann Yarnell it would not accept further filings from her unless she established a record interest in the Property. [Note 5] Ann filed an interlocutory appeal of the September 6th Order to the single justice pursuant to G. L. c. 231, § 118, on October 6, 2017, which was stayed pending the determination of her motion for reconsideration. [Note 6]

Defendant filed a supplemental memorandum to its motion(s) to dismiss on October 6, 2017, and an additional motion to dismiss on October 19, 2017. [Note 7] Plaintiffs filed an opposition to the first three motions to dismiss on October 6, 2017, and to the additional motion to dismiss on November 6, 2017. This court denied Plaintiffs' motion for reconsideration and motion to stay on December 15, 2017, and the single justice thereafter denied Ann's interlocutory appeal.

In accordance with Land Court Rule 6, the court now decides the pending motions to dismiss without a hearing. For the reasons discussed below, Defendant's motions to dismiss are ALLOWED. The following relevant facts, summarized generally, were taken from the Amended Complaint, and are augmented by the documents filed by all parties in connection with Defendants' consolidated motions.

Ann has resided at the Property since February 2011. The Property is owned by Robert, her former husband, who does not live there. [Note 8] Plaintiffs allege that immediately following Ann's move to the Property, she experienced harassment from her next-door neighbors, the house has been broken into and items stolen, neighbors and municipal employees trespass on the ROW, and they verbally attack and threaten her when instructed by her not to enter the ROW. Plaintiffs also allege tenants and guests living at a particular property park illegally and drive recklessly within the ROW.

In this action, Plaintiffs also challenge an order of taking (Order of Taking) recorded with the Essex South Registry of Deeds (Registry) on April 16, 2013, in Book 32383, at Page 245. In the Order of Taking, the City Council of the City of Lynn took, on behalf of the City, an easement interest in Buchanan Way to use "for purposes of a public street or way as commonly used in the City . . . ." The parcel of land taken is described as "a right of way, commonly known as Buchanan Way, located at the westerly end of Buchanan Circle between land known as 33 and 40 Buchanan Circle . . . ." Plaintiffs allege the taking was done in bad faith, was not conducted for a legitimate public or municipal purpose, and did not follow the statutory procedures required under G. L. c. 79.

I. Motion to Dismiss – Mass. R. Civ. P. 12(b)(1)

In reviewing a motion to dismiss for lack of subject matter jurisdiction under Mass. R. Civ. P. 12(b)(1), the court accepts as true the factual allegations of the plaintiff's complaint, as well as any favorable inferences which may reasonably be drawn therefrom. Ginther v. Comm'r of Ins., 427 Mass. 319 , 322 (1998). The court may consider documents and other competent materials outside the pleadings and resolve any factual disputes between the parties. Audoire v. Clients' Sec. Bd., 450 Mass. 388 , 390 n.4 (2008), citing Callahan v. First Congregational Church of Haverhill, 441 Mass. 699 , 710 (2004); Wooten v. Crayton, 66 Mass. App. Ct. 187 , 190 n. 6 (2006). Lack of subject matter jurisdiction may be raised at any time by the parties or the court itself, and cannot be waived. Fed. Natl'l Mortg. Assoc. v. Gordon, 91 Mass. App. Ct. 527 , 531 (2017) (citations omitted).

II. Motion to Dismiss – Mass. R. Civ. P. 12(b)(6)

A motion to dismiss for failure to state a claim upon which relief may be granted under Mass. R. Civ. P. 12(b)(6), permits "prompt resolution of a case where the allegations in the complaint clearly demonstrate that the plaintiff's claim is legally insufficient." Harvard Crimson, Inc. v. President & Fellows of Harvard Coll., 445 Mass. 745 , 748 (2006). In reviewing a motion to dismiss under Mass. R. Civ. P. 12(b)(6), the court accepts as true the factual allegations of the complaint, as well as any favorable inferences which reasonably may be drawn therefrom. Ginther v. Comm'r of Insurance, 427 Mass. 319 , 322 (1998). The court may take into account matters of public record and documents integral to, referred to or explicitly relied on in the complaint, attached or not, without converting the motion to a motion for summary judgment. Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43 , 45 (2004). To survive a motion to dismiss, a complaint must set forth the basis for the plaintiff's entitlement to relief with "more than labels and conclusions." Iannacchino v. Ford Motor Co., 451 Mass. 623 , 636, quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). With respect to a statute of limitations defense at the Rule 12(b)(6) stage, the facts in the complaint must "clearly reveal that the action was commenced beyond the time constraints of the statute of limitations." Epstein v. Seigel, 396 Mass. 278 , 279 (1985).

III. Ann Yarnell Has No Record Interest In The Property And Lacks Standing to contest the City's Taking

As previously stated in this court's Order Denying Plaintiffs' Motion for Reconsideration and Motion to Stay, dated December 15, 2017, Ann has no record interest in the Property. Only the owner of an interest in property at the time of the taking has standing to seek damages or to contest the validity of a taking. Howland v. Greenfield, 231 Mass. 147 , 148 (1918); Barnes v. Springfield, 268 Mass. 497 , 505–506 (1929); Commonwealth v. Quincy Memorial Co., Inc., 13 Mass. App. Ct. 1047 , 1048 (1982); New England Continental Media, Inc. v. Milton, 32 Mass. App. Ct. 374 (1992).

At a recent hearing, Ann proffered a Power of Attorney signed by Robert, purporting to grant her the "general authority to act on [his] behalf [for] all subjects related to property at 33 Buchanan Circle" in Lynn. However, the terms of the Power of Attorney are not sufficient to allow Ann to represent Robert or his interests before the court. While Ann lives at the property at issue, she does not have independent standing to bring the central claim in this case, which is a challenge by Robert, as record owner, to the eminent domain taking made by the City of Lynn many years ago.

Several counts of the Amended Complaint that raise issues involving only Ann, such as those relating to allegations of harassment by neighbors and City officials, fall outside the jurisdiction of the Land Court and will be dismissed. Counts alleging violations of the Open Meeting Law (counts 7-9, 11-12, 36-37, 39), also will be dismissed for lack of subject matter jurisdiction. See G. L. c. 30A, § 23(f).

While some of the other counts simply restate or summarize sections of the Massachusetts General Laws, the court, to the extent possible, interprets some as alleging claims made thereunder by Plaintiffs. Those counts, alleging subdivision control law violations (counts 13, 24), trespassing (counts 29, 33, 38), adverse possession (counts 34, 35), try title (counts 41-45, 46, 48-49), confirmation of title (count 47), and requests for enforcement (counts 50, 51), either cannot be asserted by Ann because she is not a record owner of an interest in the Property, or, as asserted by Robert, are not supported by any facts sufficient to survive a motion to dismiss.

IV. The Land Court Lacks Jurisdiction Over Robert Yarnell's Claims Contesting The City's Eminent Domain Taking As They Relate To Money Damages

Even with Ann removed from this case as a plaintiff, the remaining claims raised by Robert, as far as the court can distinguish them, also fail. Pursuant to G. L. c. 185, § 1(k), the Land Court has jurisdiction over "[a]ll cases and matters cognizable under the general principles of equity jurisprudence where any right, title or interest in land is involved." The counts relating to the City's eminent domain taking respecting the ROW appear to seek relief in the form of damages, pursuant to G. L. c. 79, §§ 6, et seq.; see, e.g., Compl. at 9 (counts two and four allege the City did not award Robert damages at the time of the taking and failed to make an offer of settlement). The Land Court lacks jurisdiction over eminent domain actions as they relate to monetary damages. Those lie exclusively in the Superior Court. G. L. c. 79, § 14. Accordingly, counts 2, 4, 10, and 17, and any other counts construed as relating to monetary damages, are dismissed.

V. Robert's Challenges to The Validity of The Order of Taking Itself Are Barred by The Statute of Limitations

In counts 1, 3, 5, 6, 14-16, 18-23, 25-28, 30-32, and 40, Robert challenges the City's compliance with the procedural requirements of G. L. c. 79, §§ 7A, 7B, 7C and 8A. Specifically, Robert alleges the City failed to sufficiently and accurately describe the property to be taken, failed to award any damages, conducted no appraisal, and made no offer of settlement. While a party may not seek monetary damages in the Land Court relating to a taking, a landowner may challenge the taking itself, inter alia, for failure to comply with the procedural requirements of G. L. c. 79. Lichoulas v. City of Lowell, 78 Mass. App. Ct. 271 , 276 (2010) (stating a party whose property has been taken by an exercise of eminent domain "may bring an action in equity to challenge the validity of that taking"), citing McAuliffe & Burke Co v. Boston Hous. Authy., 334 Mass. 28 , 30–31 (1956). That action may be brought separately and apart from the statutory right of action for monetary damages under G. L. c. 79, § 14. Lichoulas, 78 Mass. App. Ct. at 276. Such claims in equity may be properly brought before the Land Court as an action involving a "right, title or interest in land." G. L. c. 185, § 1(k).

G. L. c. 79, § 3 provides the right to bring an action for damages vests "[u]pon the recording of an order of taking . . . unless otherwise provided by law." Under G. L. c. 79, § 18, an action challenging the validity of a taking must be brought within three years from the time that the right to damages vests. Cumberland Farms, Inc. v. Montague Economic Dev. & Indus. Corp., 38 Mass. App. Ct. 615 , 616 (1995). The time limitations imposed by G. L. c. 79 are inflexible and apply even to the claim that a taking was a nullity. Whitehouse v. Sherborn, 11 Mass. App. Ct. 668 , 674–675 (1981). Because the Order of Taking was recorded on April 16, 2013, the time to challenge the validity of the taking expired on April 16, 2016. Robert's claims challenging the validity of the Order of Taking therefore are dismissed. See Commonwealth v. Tradition, 91 Mass. App. Ct. 63 , 70 (2017) ("[d]ismissal pursuant to rule 12(b)(6) based upon the expiration of a statute of limitations is appropriate where it is undisputed from the face of the complaint that the action was commenced beyond the applicable deadline").

As noted above, the court treats the first count of Plaintiffs' complaint as one for a declaratory judgment pursuant to G. L. c. 231A. Relief under G. L. c. 231A requires that "a) an actual controversy sufficient to withstand a motion to dismiss must appear on the pleadings; and b) even if there is a finding of actual controversy, a plaintiff must demonstrate the requisite legal standing to secure its resolution." Galipault v. Wash Rock Invs., LLC, 65 Mass. App. Ct. 73 , 83 (2005), citing Massachusetts Ass'n of Indep. Ins. Agents & Brokers, Inc. v. Commissioner of Ins., 373 Mass. 290 , 292 (1977). "Although the 'actual controversy' and standing requirements should be liberally construed in accord with the provisions of the statute, there are limits to the matters which can be heard in an action for a declaratory judgment." Massachusetts Ass'n, 373 Mass. at 293. Because neither Ann nor Robert raised an actual controversy sufficient to survive a motion to dismiss, and because this dismissal does not constitute a decision on the merits, the court need not issue any declaratory relief. See Harvard Crimson, Inc., 455 Mass. at 748 n.5 (stating dismissal of a complaint pursuant to Mass. R. Civ. P. 12(b)(6) does not constitute a decision on the merits and therefore declaratory judgment should not enter); see also Kirin Produce Co., Inc. v. Lun Fat Produce, Inc., 2018 WL 1748071 at *4 (Apr. 12, 2018) (Rule 1:28 Decision).

VI. Conclusion

Accordingly, Defendant's Motions to Dismiss pursuant to Mass. R. Civ. P. 12(b)(1), and (6), are ALLOWED, and Plaintiffs' complaint will be DISMISSED. The tort counts which fall outside the jurisdiction will be dismissed without prejudice.

Judgment to issue accordingly.


[Note 1] Ann Yarnell's purported interest in the subject property was a threshold issue in this case and, as discussed below, the court ultimately found she has no interest and therefore no standing.

[Note 2] Plaintiffs filed an Amended Complaint on September 12, 2016.

[Note 3] At a case management conference held on December 22, 2016, the court stated it would be treating the first count of Plaintiffs' complaint as one for declaratory relief under G. L. c. 231A, even though it was not expressly articulated. The court should, and did, look beyond the form of Plaintiffs' pro se pleadings to glean the substance of their claims. Although some leniency is appropriate when dealing with self-represented litigants, the Massachusetts Rules of Civil Procedure bind a self-represented litigant as they bind other litigants. Mmoe v. Commonwealth, 393 Mass. 617 , 620 (1985). Self-represented litigants are held to the same standards as members of the bar. Commonwealth v. Jackson, 419 Mass. 716 , 719 (1995), citing Commonwealth v. Barnes, 399 Mass. 385 , 392 (1987).

[Note 4] With respect to the failure to add necessary and indispensable parties, that position relates in part to Ann Yarnell's allegations of harassment and tort claims which fall outside the jurisdiction of this court. The parties were advised early on that those claims will not be heard in this case, as the court lacks jurisdiction and there are parties against whom allegations are made who are not joined in this action. Also, with respect to some of the counts brought by Robert, there are record owners whose properties abut Buchanan Way and who have rights over it who are not parties to this action.

[Note 5] For ease of reference, the court will hereinafter refer to the Plaintiffs individually by their first names.

[Note 6] Ann Yarnell v. City of Lynn, 2017-J-0451.

[Note 7] The court views these as an attempt to renew or reinvigorate the previously filed motions to dismiss.

[Note 8] Plaintiffs were formerly married. Ann allegedly occupies the Property under a lease agreement with Robert and further states she holds a power of attorney (POA) for the Property. This document was not attached to the complaint or amended complaint but was later provided as part of Ann's Motion for Reconsideration of the September 6th Order, at the request of the court, at which times the court reviewed its substance.