ROBERTA J. TONSBERG v. MATTHEW D. LANZA and JEANNETTE S. LANZA, as Trustees of the Lanza Trust.

Plaintiff Roberta J. Tonsberg filed this action in October 2017. She alleged that defendants Matthew D. Lanza and Jeannette S. Lanza, as Trustees of the Lanza Trust, were building a pool on their property in violation of the Declaration of Protective Covenants and Restrictions, Phase IV (recorded at the Plymouth County Registry of Deeds (the "Registry") in Book 17019, Page 27, and in the Plymouth County Registry District of the Land Court as Document No. 441205), as amended (see Registry, Book 19277, Page 214). Ms. Tonsberg sought a declaration that the Covenants and Restrictions, as amended, are enforceable and that the Lanzas' pool violated them. Ms. Tonsberg also sought an injunction preventing the Lanzas from constructing the pool.

Ms. Tonsberg applied for a preliminary injunction. This Court (Piper, J.) denied the motion in November 2017, holding that Ms. Tonsberg failed to demonstrate substantial harm to her if the Lanzas continued construction, and that the Lanzas would suffer some harm were they ordered to interrupt the pool's construction.

In December 2017, the Lanzas answered Ms. Tonsberg's complaint and presented five counterclaims and third-party claims. Counterclaim/Third-party Count I, against Ms. Tonsberg only, was for abuse of process. Count II, against third-party defendant Frederick W. Tonsberg (Ms. Tonsberg's husband) only, was for aiding and abetting Ms. Tonsberg's alleged abuse of process. Count III, against the Tonsbergs and third-party defendant High Pines LLC, was for civil conspiracy. Count IV, against the Tonsbergs only, was for violation of the Lanzas' civil rights under G.L. c. 12, § 11I. Count V, against High Pines only, was for a declaration concerning whether the Covenants and Restrictions, as amended, applied to certain lots within Phase IV of Indian Pond Estates ("Phase IV").

On January 8, 2018, the Lanzas voluntarily dismissed without prejudice Counterclaims/ Third-Party Counts I-IV. They continued to press their third-party Count V against High Pines. In March 2018, this Court (Piper, J.) dismissed Count V for lack of a true case and controversy.

The Court (Vhay, J.) ordered the remaining parties (Ms. Tonsberg and the Lanzas) to appear for trial on June 4-6 and 12, 2019. The Court took a view on June 3, 2019 of the area comprising Phase IV. On the first day of trial, the Lanzas disputed the scope of Ms. Tonsberg's claims, asserting that she hadn't properly pleaded all of them. Ms. Tonsberg moved to amend her complaint. The Court granted her motion in part, ruling that she could challenge at trial both the Lanzas' pool and a fence that encloses their backyard. The Court denied her motion to challenge at trial another structure in the Lanzas' backyard, a pool house.

For the reasons set forth in the Findings of Fact and Conclusions of Law issued this same day, it is hereby

1. ORDERED that Third-Party Claim Count V of defendants Matthew D. Lanza and Jeannette S. Lanza, as Trustees of the Lanza Trust (the "Lanzas), is DISMISSED without prejudice.

2. ORDERED, ADJUDGED, and DECREED that judgment shall enter in FAVOR of the Lanzas, and AGAINST plaintiff Roberta J. Tonsberg, on her claims that a fence in the backyard of the Lanzas' residence at 162 Country Club Way in Kingston, Massachusetts violates the Declaration of Protective Covenants and Restrictions, Phase IV (the "Covenants and Restrictions," recorded at the Plymouth County Registry of Deeds (the "Registry") in Book 17019, Page 27, and in the Plymouth County Registry District of the Land Court as Document No. 441205), as amended (the "Amendment," see Registry, Book 19277, Page 214).

3. ORDERED, ADJUDGED, and DECREED that judgment shall enter in FAVOR of Ms. Tonsberg, and AGAINST the Lanzas, on Ms. Tonsberg's claims that an in-ground pool in the backyard of the Lanzas' residence at 162 Country Club Way in Kingston, Massachusetts (the "Pool") violates the Declaration of Protective Covenants and Restrictions, as amended.

4. ORDERED, ADJUDGED, and DECREED that (a) the Covenants and Restrictions, and the Amendment, are in full force and effect; (b) Ms. Tonsberg is entitled to enforce the Covenants and Restrictions, and the Amendment; and (c) the Pool violates the Amendment.

5. ORDERED that the (a) the Lanzas, in their capacity as trustees; (b) their successors in interest to 162 Country Club Way in Kingston, Massachusetts; and (c) their agents, servants, employees, attorneys, guests, invitees, family members, and those persons in active concert or participation with any or all of them are hereby ENJOINED from using the Pool, regular and normal maintenance excepted. Should any of the foregoing persons violate this paragraph (5), the owner(s) of 162 Country Club Way at the time of the violation will be jointly and severally liable with each such violator for a fine equal to $100 per person per day of each violation.

6. ORDERED that the Lanzas shall, within seven (7) days of the entry of this Judgment, post and maintain the following Notice: "By order of the Land Court, no one is allowed to enter or otherwise use the Pool. Anyone entering or otherwise using the Pool may be liable for a fine equal to $100 per day of each violation." The Notice must be posted and maintained in such a location (or locations), and be of sufficient size, that any person who is within five feet of the Pool and who has 20/20 vision (natural or corrected) would be able to see the Notice and read it. Failure to comply with this paragraph (6) will result in a fine equal to $100 per day of non-compliance.

SO ORDERED.