EDWARD DRIGGERS and MONICA DRIGGERS, Plaintiffs v. MOUHAB RIZKALLAH and LAURA RIZKALLAH, Defendants

Defendant and plaintiff-in-counterclaim Dr. Mouhab Rizkallah has moved for a stay of the court's Judgment issued on August 7, 2020, pending his appeal of that Judgment. The Judgment quieted the title of the plaintiffs to their record property, found that Dr. Rizkallah and his wife Laura Rizkallah had not established title to any of the disputed area by adverse possession or by establishment of an easement by prescription, ordered the Rizkallahs to remove any encroachments in the play area part of the disputed area on the plaintiffs' property within 60 days of the date of the Judgment, and ordered the Rizkallahs to remove a retaining wall encroaching on the plaintiffs' property within 120 days of the date of the Judgment.

Defendant Dr. Rizkallah, but not defendant Laura Rizkallah, filed a timely notice of appeal of the court's August 7, 2020 Decision and Judgment on September 2, 2020. Defendant Dr. Rizkallah, but not defendant Laura Rizkallah, filed a motion to stay the court's Judgment pending appeal. The parties appeared before the court by videoconference on October 15, 2020, to argue the motion, and the court ruled that the motion would be allowed in part and denied in part pursuant to a separate order to follow. This is that order.

The court, as a matter of discretion, treats the motion for a stay as applying to both defendants, notwithstanding the fact that only Dr. Rizkallah appealed the August 7, 2020 Decision and Judgment, and notwithstanding that only Dr. Rizkallah moved for a stay.

The court does not find that the defendants have a shown a sufficient likelihood of success on the merits to warrant a stay. In particular, the court finds that in their motion, the defendants have mischaracterized the court's statement of the legal standard for establishment of a claim of adverse possession, and have further mischaracterized facts found by the court as not being supported by the evidence, when that is not the case. However, the court finds that irreparable harm to the defendants with respect to part of the court's Judgement, in the absence of a stay, in comparison with the lack of comparable irreparable harm to the plaintiffs during the pendency of the appeal, warrants a partial stay of the court's Judgment.

Accordingly, the Motion for Stay Pending Appeal is ALLOWED in part and DENIED in part as follows:

That part of the Judgment enjoining the defendants and their agents from continuing to trespass on the retaining wall and the basketball court supported by the retaining wall, and ordering the defendants to remove the retaining wall and basketball court where they encroach on the record property of the plaintiffs within 120 days, is STAYED PENDING APPEAL;

The remainder of the Judgment remains in full force and effect and is not stayed pending appeal. Specifically, except as provided above, and except as required for the removal of the encroachments other than the retaining wall and the basketball court, the defendants remain enjoined from trespassing on the plaintiffs' property, by entering thereon or by maintenance on the plaintiffs' record property of, inter alia, the play set, the low stone wall and steps in the vicinity of the play set, and the valve distribution box and all pipes or hoses connected to it; and the defendants remain under order, with no stay pending appeal, to remove, at their sole cost and expense, the said encroachments from the play area, including the play set, the valve distribution box and all pipes or hoses connected to it, and the low stone wall and steps in the vicinity of the play set, provided that the time within which defendants are ORDERED to complete the removal of said encroachments is extended to the period ending November 30, 2020.

So Ordered.