ROBERT L. PAINE v. TOWN OF WELLFLEET, et al.

Respondent Chellise L. Sexton has filed two motions. Her first motion, filed pursuant to Rule 52, Mass. R. Civ. P., asks this Court to alter, amend and supplement what Ms. Sexton calls the "findings of fact" in a Decision of this Court (Sands, J.) dated March 31, 2017. See Paine v. Sexton, 25 LCR 191 (2017) (the "2017 Decision"). Ms. Sexton's second motion uses the proposed amended findings as a springboard to argue that, pursuant to Rule 59, Mass. R. Civ. P., this Court should vacate the Decision and set certain matters for trial. Petitioner Robert L. Paine opposes both motions.

First, a procedural detour. This case is one for registration under G.L. c. 185 of a 1.5440- acre lot further described in Paine, 25 LCR at 191 (called "Locus" in that decision). A citation for publication of Mr. Paine's registration petition issued in 2008. In 2010, Ms. Sexton answered Paine's petition and raised two issues. The first is whether Paine has title to Locus: Sexton claims that two 1856 deeds in Paine's chain of title describe a property other than Locus.

Sexton's second issue is whether Paine is the sole owner of Locus. Sexton claims that she (and she alone) holds a 1/12th interest in part of Locus. See id. at 191 & n. 5.

Paine responded to Sexton's contentions by claiming that he had extinguished everyone's rights in Locus, including Sexton's, through adverse possession. The Court bifurcated the dispute between Paine and Sexton in this case (as well as their disputes in a related case, one that the 2017 Decision calls the "Campground Case"), and required them to litigate Paine's adverse-possession claims first. The Court reasoned that a ruling in Paine's favor would obviate the need for the Court to resolve the "far more complex" dispute concerning Sexton's alleged fractional interest in parts of Locus. See id. at 191 n.6.

Paine and Sexton fully litigated in the Campground Case Paine's adverse-possession claims, at least as they pertained to that case. That litigation included a trip to the Appeals Court, which upheld Judge Sands's decision that Paine indeed had established title to various parcels by adverse possession under a "color of title" theory. See id. at 191-92; Paine v. Sexton, 88 Mass. App. Ct. 389 (2015).

Following the Appeals Court's decision, this Court sensed that the findings of fact and conclusions of law in the Campground Case, rendered after trial, might dispose of many of the issues concerning Locus. This Court thus ordered Paine to file a suitable motion for summary judgment in this case. Paine did so, and Sexton opposed the motion. In the 2017 Decision, the Court concluded that Paine had "acquired title to Locus by adverse possession under a color of title theory," the same theory on which Paine prevailed in the Campground Case. Paine, 25 LCR at 197.

Had the 2017 Decision come in one of the Court's "Miscellaneous" cases – let's say, a case that sought declarations merely as between Paine and Sexton concerning their interests in Locus – the Court would have followed the 2017 Decision with a corresponding final judgment under Rule 58, Mass. R. Civ. P. But that didn't happen here. That's because this case (like the Campground Case) is a c. 185 registration case. Such cases are "proceedings in rem against the land" that is the subject of the proceeding, Long v. Wickett, 50 Mass. App. Ct. 380 , 387 (2000), and they yield at the end of the case "a judgment of confirmation and registration [of title] which shall bind the land and quiet the title thereto. . . ." G.L. c. 185, § 45. Some have called such judgments of title "good against the world."

The 2017 Decision resolved the adverse-possession issue in Paine's favor. By declaring Paine the owner of Locus by adverse possession, the Court essentially declared against all comers – not just Sexton – that Paine owns Locus. But the 2017 Decision didn't end the Court's registration work. Much technical work – primarily by the title Examiner assigned to this case and the Land Court's Survey Department – remained, and still remains. (For a description of what typically happens prior to issuance of a registration decree, see generally Hon. Gordon H. Piper & Diane C. Tillotson, "Litigating Real Estate Disputes in Land Court," Litigating Residential Real Estate Disputes in Massachusetts § 22.2, 22-13 to 22-18 (MCLE 2007).) Recognizing that fact, at the conclusion of the 2017 Decision, the Court announced that it was transferring the case to the Examiner "for completion of [his] review of this file and the issuance of a Decree of Registration." Paine, 25 LCR at 198.

That's why there isn't, as of yet, a final judgment within the meaning of Rule 58 in this proceeding. The 2017 Decision thus is akin to a ruling under Rule 56(d), Mass. R. Civ. P. ("Case Not Fully Adjudicated on Motion"), inasmuch as a ruling under Rule 56(d) doesn't produce a final judgment either. See James W. Smith & Hiller B. Zobel, Massachusetts Rules Practice § 56.9, 300-301 (2007). (The Court will discuss an important difference between the 2017 Decision and the typical Rule 56(d) ruling later in this Memorandum.) What this procedural detour indicates is that both of Ms. Sexton's motions rely on the wrong rules. Her first motion cites Rule 52, but that rule deals with findings of fact and conclusions of law rendered "[i]n all actions tried upon the facts without a jury," Rule 52(a), as well as the amendment of such findings and conclusions, see Rule 52(b). Rule 52 doesn't apply to decisions like the 2017 Decision, which the Court issued under Rule 56. See Rule 52(a). Sexton's second motion cites Rule 59, a rule that has five subparts. Rules 59(a)-(d) pertain to motions for new trials, but there was no trial in this case. Rule 59(e) governs motions to "alter or amend the judgment," but as noted earlier, no one has entered judgment here.

Rules 52 and 59 thus don't offer avenues for the Court to address Ms. Sexton's objections to the 2017 Decision. But that doesn't leave Sexton without recourse. Courts may reconsider summary-judgment rulings (partial or otherwise) at any time prior to the entry of judgment, at which point Rule 59(e) kicks in. See Herbert A. Sullivan, Inc. v. Utica Mutual Insurance Company, 439 Mass. 387 , 401 (2003). Paine also hasn't objected to Sexton's motions on procedural grounds. The Court thus will treat both of Sexton's motions as motions for reconsideration of the 2017 Decision.

In her Rule 52 motion, Ms. Sexton attacks nine of the 2017 Decision's "findings." The Decision enumerates some of the findings; the Decision mentions others in connection with announcing certain conclusions of law. When it decides a Rule 56 motion, a court doesn't adjudicate (or "find") facts. Instead, a court's fodder on summary judgment is undisputed facts. See Rule 56(c). Land Court Rule 4 further constrains this Court's menu by requiring the parties to identify the particular facts they consider to be material to a pending Rule 56 motion. Given Rule 56 and Land Court Rule 4's requirements pertaining to how parties must present their allegedly undisputed facts, there really are only three good grounds for reconsidering this Court's prior conclusions under Rule 56 concerning a particular fact: that (1) the moving party failed to list a material fact in his Land Court Rule 4 submissions; (2) the moving party failed to offer within his Rule 4 submissions proper support for that fact; or (3) the court erroneously concluded that the opposing party agreed with (or didn't properly dispute) that fact.

With these rules in mind, the Court turns to Sexton's challenges to the 2017 Decision's "findings." Several of those challenges – those to Findings Nos. 7 and 17, and Footnotes 33 and 34 – pertain to findings that are immaterial to the 2017 Decision's ultimate conclusion, that Paine acquired title to Locus by adverse possession under a color of title theory. See Carey v. New England Organ Bank, 446 Mass. 270 , 278 (2006) (dispute as to immaterial facts won't defeat a motion for summary judgment). There's thus no need to revisit those findings. Some of Sexton's other attacks are simply mistaken. She challenges, for example, Footnote 28. That footnote contains a mix of undisputed facts and legal conclusions:

Because . . . Irene [Paine] never had any fee title interest in the (northerly) portion of Locus that was previously part of Lot 57m, the 2006 Deed, at best, conveyed to Paine only Irene's interest in the (southerly) portion of Locus, which was previously part of Lot 58m. However, in his capacity as trustee of the Trust, Paine already held an apparent title interest in the portion of Locus that Irene was incapable of conveying. Thus, effective as of the recording of the 2006 Deed, Paine (either in his capacity as trustee or his individual capacity) held an apparent record title interest in the entirety of Locus.

Sexton claims that there's "no evidence" in the summary judgment record to support Footnote 28, but she's incorrect. Findings 5, 6 and footnote 24 of the 2017 Decision identify the support for the Court's conclusion that Irene lacked fee title in the "northerly" portion of Locus. The Footnote's observation that the 2006 Deed (something Paine submitted with his Supplemental Appendix in support of his motion for summary judgment) conveyed to Paine only Irene's interest in the "southerly" portion of Locus is a legal conclusion, and not a statement of fact. The other legal conclusion embedded in footnote 28 – that as of the recording of the 2006 Deed, Paine "in his capacity as trustee of the Trust . . . already held an apparent title interest" in the northerly portion of Locus – is based upon the facts found (that's actually found, after trial) in the Campground Case. Paine's Summary Judgment Appendix contains the judgment and supporting findings from the Campground Case. Sexton may disagree with what Court concluded from those materials, but a disagreement over the law is no basis for striking Footnote 28.

Similarly mistaken are Sexton's challenges to the second and third sentences in the fifth full paragraph in Paine, 25 LCR at 197, and footnote 43 on that page. Sexton assets again that there's "no evidence" supporting these findings, but that's not correct: the evidence appears in Irene Paine's trial testimony (found in Paine's Appendix), three affidavits filed with the Supplemental Appendix, and the Court's findings in the Campground Case. The Appeals Court upheld the latter on appeal; this Court won't strike those findings now.

Another of Sexton's attacks, that against Finding No. 14, rests on an incorrect inference. Finding No. 14 begins: "In her testimony at the trial in the Campground Case, Irene [Paine] testified. . . ." Sexton argues that one can't glean, from the two pages of Irene's trial testimony in Paine's Appendix, all that follows Finding No. 14's introductory clause. Sexton reads too much into the introduction. Finding No. 14 summarizes facts taken from Irene's testimony plus the decision in the Campground Case, which relied in part (but not exclusively) on that testimony. There's thus no reason to strike Finding No. 14. (Sexton also argues that Finding No. 14 conflicts with a 2005 affidavit of Robert S. Paine, thereby creating a dispute that requires a trial. The Court has reviewed the elder Paine's affidavit and detects no conflict.)

Sexton is on firmer ground in challenging what the Court will call the 2017 Decision's "collaborative activity" findings – findings that appear in the seventh full paragraph in Paine, 25 LCR at 196; the first sentence of the first full paragraph on id. at 197; and the second, third and fourth sentences of the third full paragraph on id. These statements refer to alleged collaboration and cooperation among Irene Paine, her then-husband Stephen J. Mahan, and Irene's parents Robert S. and Cynthia M. Paine (whom the 2017 Decision calls the "Parents") in their use of the Campground and Locus.

Paine concedes in his opposition to Sexton's Rule 52 motion that the Court's comments about collaboration rest in part on Irene's trial testimony in the Campground Case, chiefly page 186 of that testimony. Paine didn't include page 186 in his Appendix, and the decisions in the Campground Case (which Paine's Appendix did include) say very little about relations among the Paine family. Paine also didn't argue in his motion for summary judgment, his memorandum in support of that motion, his reply in support of that motion, or his Rule 4 statement of material facts that such collaboration occurred. It thus stands to reason that if the Court's "findings" concerning collaboration were material to the 2017 Decision, Sexton legitimately could argue that she had no opportunity to present evidence that contradicted those findings.

A closer reading of the 2017 Decision reveals that the Court's comments on collaboration weren't material to its ultimate conclusion. Paine's position on summary judgment was that (a) his Parents had established title to the westerly portion of Lot 57m by adverse possession under color of title between 1971 and October 1998; (b) his sister Irene had established title to the westerly portion of Lot 58m between August 1978 and October 1998; and (c) Paine succeeded his Parents and Irene in title, to both lots, by 2006. The Court agreed. See Paine, 25 LCR at 196-197. The Court's further observations about collaboration among members of the Paine family were responsive to arguments Sexton made in opposition to Paine's motion for summary judgment, but in the end they aren't material to the Court's ultimate ruling. The Court thus won't strike the "collaborative activity" findings from the 2017 Decision.

Sexton next urges the Court to add findings to the Decision. She first asks the Court to include a finding, from the first of the Campground decisions, that Paine's predecessors in title "do not appear to have received permission from anyone to use" the Campground and, by extension, Locus. Paine v. United States of America, 20 LCR 292 , 301 (2012). Sexton means to use this "no permission" finding to disprove further the 2017 Decision's comments regarding collaboration among members of the Paine family, presumably to show that the Parents never sought permission from Irene to use her land, and vice versa. As discussed above, the Court's comments about collaboration aren't material to the 2017 Decision's ultimate conclusions. (It's also clear that Judge Sands aimed his "no permission" finding at the owners of record of the Campground, and not those like the Paines who sought to establish title to the Campground by adverse possession. The "no permission" finding thus doesn't prove Sexton's point.)

Sexton closes her Rule 52 motion by asking the Court to make nine other findings. She offered each in the course of the parties' submissions on Paine's motion for summary judgment, prior to issuance of the 2017 Decision. All of them pertain to Sexton's purported record title in a part of the Locus. The 2017 Decision notes the Court's ruling, made relatively early in this case, that all title issues (including Sexton's) "would become moot if Paine could prove adverse possession." Paine, 25 LCR at 191 n.6. Sexton offers no reason why that conclusion is incorrect. The Court thus will not add to the 2017 Decision findings concerning Sexton's alleged record title.

Accordingly, the Court DENIES Ms. Sexton's Rule 52 motion. Her Rule 59 motion raises no additional points, and thus the Court DENIES her Rule 59 motion too. These rulings thus leave the 2017 Decision intact. Sexton previously told the Court that she wishes to appeal the 2017 Decision. Paine offered to facilitate an appeal by agreeing to the entry of a separate and final judgment under Rule 54(b), Mass. R. Civ. P.

While the Court believes that it could certify the 2017 Decision under Rule 54(b), the Court needn't do so if all that the parties seek is a means of taking the 2017 Decision to the Appeals Court. That's because since 1899, the Legislature has provided for appeal, as of right, of any question of law arising out of "any decision or decree" of this Court in a registration proceeding. St. 1899, c. 131, § 2. Originally such appeals were to be taken in the "same manner" as appeals from the superior court. A 1937 case, Sheehan Construction Co. v. Dudley, 299 Mass. 48 , 49 (1937), seemed to suggest that the phrase "same manner" meant that appeals from Land Court decisions are subject to the same rules as other appeals. There was no Rule 54(b) in Sheehan's day, but Sheehan's sort of thinking might lead one to conclude that, even in registration cases, appeals prior to a final judgment of registration need a Rule 54(b) certification. (City of Boston v. Lynch, 304 Mass. 272 , 274 (1939), suggests the opposite in a case arising under this Court's exclusive tax-title jurisdiction, but Lynch too pre-dates Rule 54(b).)

If Sheehan could be read as subjecting as-of-right appeals in Land Court registration cases to the same finality requirements imposed in Superior Court cases, that shouldn't be a worry now: the Legislature dropped the critical "same manner" language in 1974. See St. 1973, c. 1114, § 25. The appeal provision, found in G.L. c. 185, § 15, now reads: "Questions of law arising in the land court on any decision, judgment, or decree may be appealed by any party aggrieved thereby to the appeals court or, subject to the provisions of section ten of chapter two hundred and eleven A, to the supreme judicial court." Thus, since 1974, the Legislature has authorized the Appeals Court to hear questions of law arising from "any decision" in a registration case without awaiting a Rule 54(b) certification.

Given that the 2017 Decision resolves the most important issue in this case – who, against the world, owns Locus – this is the appropriate moment for anyone challenging that decision to take it to the Appeals Court. An appeal at this time would serve the parties' interest in resolving sooner rather than later the questions as to their respective interests in Locus. An appeal also serves the interests of the Land Court, its Examiner, and its Surveyor, each of whom would appreciate hearing whether this Court must revisit the issues resolved in the 2017 Decision prior to undertaking all that goes into the issuance of a truly final judgment of registration.

For these reasons, the Court DENIES Ms. Sexton's motions under Rules 52 and 59, and DECLARES that the Court's March 31, 2017 Decision (Sands, J.) in this case presents multiple "[q]uestions of law arising in the land court" that may be appealed under c. 185, § 15.

SO ORDERED.