DEBRA L. FRANKO and DANNY G. KALOUPEK v. KENNETH J. LEARY, JR., as Trustee of the 2115 Commonwealth Avenue Realty Trust; PASQUALE BRUNO; and CROWFLIGHT DEVELOPMENT AND INVESTMENT FIRM LLC

Plaintiffs Debra L. Franko and her husband Danny G. Kaloupek own 230 Melrose Street, a suburban residential parcel in Newton, Massachusetts. Next to 230 Melrose Street is 10 Elberta Terrace. At the time Plaintiffs filed this neighbor-versus-neighbor suit, the record owner of 10 Elberta Terrace was defendant Kenneth J. Leary, Jr., as Trustee of the 2115 Commonwealth Avenue Realty Trust. The document creating that Trust reveals, however, that the Trust terminated in 2006. No one had focused on that fact until late November 2019, when the parties to this suit were wrapping up a trial of their claims. Post-trial, Mr. Leary claimed that he's the sole owner of 10 Elberta Terrace, as he says he was the Trust's sole beneficiary at the moment it terminated. Plaintiffs question that assertion, but that doesn't matter for present purposes: Rule 25(c), Mass. R. Civ. P., provides in part that "[i]n case of any transfer of interest," a lawsuit "may be continued . . . against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party." (Emphasis added.) As no party moved for substitution, the Court will now decide this case as if Trustee Leary still owns 10 Elberta Terrace.

What led to this suit is a June 2017 contract between Trustee Leary and defendant Crowflight Development and Investment Firm LLC. Crowflight agreed to seek permits for, and build on 10 Elberta Terrace, a single-family residence. In exchange for Crowflight's promised development activities, Trustee Leary agreed to sell 10 Elberta Terrace to Crowflight once it had found a suitable buyer for the residence.

In June 2017, 10 Elberta Terrace was largely wooded, but various "built" residential and commercial parcels surrounded it. After signing its contract with Trustee Leary, Crowflight began clearing portions of 10 Elberta Terrace, but Crowflight didn't start excavating building foundations until late spring of 2018. Crowflight poured that foundation in the summer of 2018 and fully framed the new residence by September 2018.

As construction progressed, excavation on 10 Elberta Terrace crept ever closer to 230 Melrose Street. In September 2018, plaintiff Kaloupek stopped defendant Pasquale Bruno, one of Crowflight's principals, while Bruno was operating an excavator next to 10 Elberta Terrace's newly framed house. Kaloupek asked to speak with Bruno. During that conversation, or maybe shortly thereafter, Kaloupek told Bruno that Kaloupek and his wife had acquired by adverse possession an 18-foot by 60-foot rectangle of 10 Elberta Terrace abutting 230 Melrose Street's backyard (the "Disputed Area"). If that assertion were true, Plaintiffs' property extended into the interior of the newly framed residence on 10 Elberta Terrace.

Construction pretty much stopped while Plaintiffs, Trustee Leary and Crowflight tried to resolve matters. Things didn't work out, and so in March 2019 Crowflight's excavator roared back into action. Plaintiffs responded by filing this suit and requesting an injunction halting construction. In Count I of their complaint, Plaintiffs sought a declaratory judgment that they own the Disputed Area. In Count II, Plaintiffs petitioned under M.G.L. c. 240, §§6-10, to quiet title to the Disputed Area. In Count III, Plaintiffs sought an order directing Crowflight and Bruno to restore and stabilize the Disputed Area or, in the alternative, pay damages for their alleged trespass into the Disputed Area and/or the diminished value of 230 Melrose Street. In Count IV, Plaintiffs sought an order against Trustee Leary, Crowflight and Bruno (collectively, the "Defendants") prohibiting further entry into the Disputed Area other than for purposes of restoring it.

By agreement of the parties, this Court enjoined Defendants in late April 2019 from all but emergency work within the Disputed Area. The parties appeared for trial on October 22, 23 and 24, 2019. During that trial, the Court took a view of 230 Melrose Street and 10 Elberta Terrace. On the last day of trial, pursuant to Rule 41(b)(2), Mass. R. Civ. P., the Court dismissed Plaintiffs' claims in Count III against Mr. Bruno personally, as Plaintiffs failed to present evidence that Bruno personally (as opposed to Crowflight's employees generally) trespassed on the Disputed Area.

On November 21, 2019, the Court heard closing arguments in the case. The Court also announced its tentative findings as to certain issues, and ordered the parties to engage a surveyor (or surveyors, if the parties' couldn't agree on one) to place on the parties' properties certain marks and lines suggested by the trial evidence. The parties did that, and the Court paid a second visit to the parties' properties on December 17, 2019. (The surveyor also prepared a plan showing the locations of the Court's requested marks. The Court ADMITS that plan into evidence as Trial Exhibit 53, but only for the purposes of showing the Court's requested marks relative to what Exhibit 53 calls the "Neighbor's Trees," the properties' boundary lines of record, and the location of a concrete patio on 230 Melrose Street.)

Having considered the evidence admitted at trial, having heard the parties' witnesses and the arguments of their counsel, having reviewed the parties' agreed facts, and having viewed the parties' properties twice, the Court FINDS the facts described above as well as those that follow in the numbered paragraphs below. The Court concludes that Plaintiffs have acquired by adverse possession some, but not all, of the Disputed Area. This decision will call what Plaintiffs have acquired the "Mowed Area," for reasons that will be explained shortly. Because this decision creates the first notice to the parties that Plaintiffs own the Mowed Area, as well as the first notice of that Area's dimensions, further proceedings are needed to establish the appropriate final remedies.

Here are the additional facts found by the Court:

1. In June 1966, Antranig and Doris DerMarderosian purchased 230 Melrose Street. Their deed to 230 Melrose Street described the property as a 60-foot by 100-foot rectangle, with its short sides aligned north/south and its long sides aligned east/west. At the time they bought 230 Melrose Street, the DerMarderosians had three children, Mark (who was eleven years old), Alan (who was seven years old), and Kara (who was one years old).

2. As of June 1966, 230 Melrose Street had a single-family residence on it. The residence occupied roughly the center of the property. Melrose Street ran along the west side of the property. What's now known as 10 Elberta Terrace bounded the entire east side of 230 Melrose Street.

3. In June 1966, a driveway ran along the north side of 230 Melrose Street. The driveway extended east from Melrose Street, then curved south once it reached the backyard of 230 Melrose Street. The driveway ended at a 20-foot by 20-foot, two-car garage that sat upon a concrete slab. The slab was slightly larger than the garage on its east side, and approximately two feet larger than the garage on its north side. The garage occupied the southeast corner of 230 Melrose Street. The north side of the garage opened onto the driveway. As of June 1966, the northeast corner of the garage's slab encroached 0.1 feet into 10 Elberta Terrace, and the southeast corner of the slab encroached 0.8 feet into 10 Elberta Terrace. The DerMarderosians didn't learn of the encroachments until August 1990.

4. The DerMarderosians moved to 230 Melrose Street in August 1966. They then started clearing the property's backyard of brush and junk left by the property's previous owner. As of August 1966, nothing in the backyard of 230 Melrose Street indicated where 230 Melrose Street ended and 10 Elberta Terrace began. Trees, vines, weeds and other brush occupied the boundary area, and similar vegetation characterized the portions of 10 Elberta Terrace that lay east of the boundary area.

5. In 1967, the DerMarderosians removed all of the driveway that occupied their backyard and re-sodded the area. Once the new lawn was established, Antranig and Mark DerMarderosian shared the responsibility for mowing the yard. The DerMarderosians started maintaining in 1967, what this Decision calls the "Mowed Area," included much, but not all, of the Disputed Area.

6. The northeast corner of the Mowed Area lies at the base of the south side of a tree, called the "Fox Tree" at trial. The Fox Tree existed at the time of trial. It appears on the left side of Trial Exhibits 32 and 48, and a surveyor placed its location on the plan admitted as Trial Exhibit 53. The Fox Tree is 14.5 feet east of the northeast corner of 230 Melrose Street.

7. Mark DerMarderosian credibly testified that he would start mowing the eastern edge of the Mowed Area by putting his back against the south side of the Fox Tree, then push a hand mower (or later, a power mower) south from there. But twelve-year-old Mark wasn't a surveyor, nor did he mow 230 Melrose Street's backyard with the aid of a compass. Had he mowed precisely parallel to 230 Melrose Street's property line, he would have cleared an approximately fourteen-foot rectangle next to 230 Melrose Street's garage. Home movies shot in 1974 and in 1983 show only an eight-to ten-foot wide area on the east side of the garage. The Court thus FINDS that the southeast corner of the Mowed Area is eight feet from the southeast corner of the 230 Melrose Street "patio" depicted on Exhibit 53. The southeast corner of the patio is the southwest corner of the Mowed Area, and the northeast record corner of 230 Melrose Street is the northwest corner of the Mowed Area. (I credit Mark DerMarderosian's testimony and the two home movies over Antranig DerMarderosian's deposition testimony. Antranig thought that the garage's side yard extended only four feet from the east side of the garage. He didn't have at his deposition the benefit of the home movies shown at trial.)

8. From 1967 to 1980, the DerMarderosians mowed the Mowed Area weekly during growing season. They fertilized and seeded the Mowed Area whenever they did the same for their deeded backyard. They also raked the Mowed Area whenever they raked their deeded backyard. The DerMarderosians' activities formed a noticeable area of tended lawn, abutted to the east by untended woodland and dense shrubbery.

9. In the early 1970s, Antranig DerMarderosian built a raised garden within the Mowed Area. The garden was eight feet wide and ten feet long. The northeast corner of the garden was near the northeast corner of the Mowed Area. The DerMarderosians maintained that garden through the early 1980s. For a time, south of the garden but within the Mowed Area, the DerMarderosians had a four square-foot sandbox. Starting in 1967, and continuing through September 1990, the DerMarderosians treated the rest of the Mowed Area as their backyard. Their children and those of their neighbors played in the Mowed Area consistently during the late 1960s and the 1970s. The family hosted frequent large barbecues and other gatherings within the Mowed Area. Within that portion of the Mowed Area that abutted the east side of the garage, the family stored lumber, bikes and go carts.

10. Mark DerMarderosian largely stopped helping with maintenance of the Mowed Area after May 1977. Antranig DerMarderosian continued maintenance of the Mowed Area and the garden until 1980, when he separated from Doris DerMarderosian and moved out of 230 Melrose Street. Thereafter, Ms. DerMarderosian had 230 Melrose Street, including the Mowed Area, professionally maintained. (Mr. DerMarderosian's garden was removed sometime after 1983.) Ms. DerMarderosian received full title to 230 Melrose Street in December 1986.

11. Trustee Leary purchased several nearby parcels, including 10 Elberta Terrace, in March 1986. At the time, he was operating a flower shop on one of those parcels. The shop was at the farthest point on Trustee Leary's parcels from 230 Melrose Street, and was downhill from 230 Melrose Street. Before buying the parcels, Trustee Leary had them surveyed and staked. He also walked their perimeter before buying them. He saw that the backyard of 230 Melrose Street had been extended into 10 Elberta Terrace (in places, according to Leary, the extension looked somewhat like a "golf course rough"), but Trustee Leary purchased 10 Elberta Terrace anyway.

12. Trustee Leary never spoke to Doris DerMarderosian about the Mowed Area. Leary had contacts with the DerMarderosian family: he had employed Kara DerMarderosian part time at his flower shop in the early 1980s, and they were on fine terms. Despite never speaking with the DerMarderosians about the Mowed Area, Leary claimed at trial that beginning in April 1986 and continuing for the next two years, on three weekdays (but never weekends), when skies were bright and the temperature above 50°, between the hours of 11:00 a.m. and noon, he would take a break from his flower shop. He would climb a path that crossed his lands (the "Path," used as a sledding trail by area children in the winter), leading to the edge of 230 Melrose Street, then enter the Mowed Area to practice martial arts techniques. He did so, he claimed at trial, because the Area was level, secluded, and peaceful. The Court does not believe this part of Leary's testimony.

13. Ms. DerMarderosian sold 230 Melrose Street to plaintiffs Franko and Kaloupek in 1990. In conjunction with the sale, DerMarderosian obtained a survey (the "1990 Survey") that showed 230 Melrose Street's deeded boundary lines as well as the garage's encroachments onto 10 Elberta Terrace. As a condition of their purchase of 10 Elberta Terrace, Plaintiffs required DerMarderosian to modify the garage so as to conform to the City of Newton's zoning-setback requirements, and trim the garage's concrete slab so as to remove any encroachments onto 10 Elberta Terrace. DerMarderosian met both contingencies.

14. Kaloupek and Franko moved to 230 Melrose Street in September 1990. At the time they arrived, the backyard and the Mowed Area were grassy. A scrubby tree was growing within the Mowed Area adjacent to the east side of the now-modified garage.

15. Owing to the 1990 Survey, Kaloupek and Franko knew in September 1990 that Trustee Leary owned 10 Elberta Terrace and that the Mowed Area was on the Trustee's record property. In September 1990, Kaloupek and Franko weren't familiar with the legal doctrine of adverse possession.

16. In late 1991, Mr. Kaloupek visited Trustee Leary and asked if he'd be willing to sell any of his property. Kaloupek didn't say how much property he wanted. Leary told Kaloupek that the property wasn't for sale.

17. For the first four or five years after moving to 230 Melrose Street, Mr. Kaloupek mowed, seeded, raked and removed limbs from the Mowed Area. Beginning in 1994, Kaloupek hired a contractor to maintain Plaintiffs' yard. Over time, Kaloupek and/or his contractor expanded 230 Melrose Street's encroachment into 10 Elberta Terrace, beyond the Mowed Area.

18. In September 1998, Trustee Leary and his family started living at 2115 Commonwealth Avenue, a lot that's adjacent to 10 Elberta Terrace. Leary's first child was born in 2000. Over the next several summers, in order to make suitable play areas for his children, Leary began clearing parts of 10 Elberta Terrace, by hand.

19. In the summer of 2002, Mr. Kaloupek approached Trustee Leary while the latter was tending 10 Elberta Terrace. Kaloupek said he wanted to use the area on 10 Elberta Terrace that was next to 230 Melrose Street, "or even buy it if possible." Leary refused to sell. Kaloupek asked if he could use the area. Leary said he didn't mind that, "but please remember I own it." Kaloupek thanked Leary. At the time of this conversation, Kaloupek was still unaware of the doctrine of adverse possession. After this conversation, while Leary occasionally mowed the Path, he didn't mow or maintain any of the Disputed Area.

20. Plaintiffs removed their garage in 2005. They turned its concrete slab into a patio/basketball court. Well before August 2007, they had expanded their yard beyond the Mowed Area to cover the entire Disputed Area.

21. By the summer of 2017, 10 Elberta Terrace was under contract and Crowflight had begun clearing the property. The activities so troubled Mr. Kaloupek that he took pictures of the work and the still-intact Disputed Area. He also measured the Disputed Area. Around this time, Kaloupek became aware of the legal doctrine of adverse possession.

22. In August 2017, Mr. Kaloupek went to Trustee Leary's flower shop to discuss what was happening on 10 Elberta Terrace. Leary said that he had a contract with Mr. Bruno to build a house on the property. Kaloupek told Leary that he owned the Disputed Area by adverse possession, and that he hoped to settle things with Leary without incurring legal costs. Leary said that Kaloupek would have to settle things with Bruno, and that if Bruno agreed to a settlement, Leary would agree too.

23. Mr. Kaloupek left his August 2017 conversation with Trustee Leary believing that Leary would have Mr. Bruno contact Kaloupek. That didn't happen, but Kaloupek never followed up with Leary either: Crowflight's telephone number appeared on the heavy machinery used on 10 Elberta Terrace.

24. In December 2017, Crowflight erected a construction fence within the eastern portion of the Disputed Area. Installation of the fence didn't prompt Mr. Kaloupek to contact Trustee Leary, Crowflight or Mr. Bruno.

25. Crowflight began excavating the new residence's foundation in late spring of 2018. That work included excavation of the embankment on the east side of the Disputed Area and portions of the southern end of the Disputed Area. Crowflight poured the building's foundation in the summer of 2018. By September 22, 2018, Crowflight had fully framed and sided the house and installed its windows. Mr. Kaloupek knew from his 2017 measurements that the foregoing work was occurring within the Disputed Area, but that didn't prompt him to contact Trustee Leary, Crowflight or Mr. Bruno. The work also didn't prompt Plaintiffs to sue Defendants to stop the work.

26. On September 22, 2018, while Mr. Bruno was operating an excavator on 10 Elberta Terrace (but not within the Disputed Area), Mr. Kaloupek got Bruno's attention. They met for the first time. Kaloupek repeated his claims of adverse possession. For several weeks thereafter, the parties explored settlement, but they didn't resolve their dispute.

* * *

The Court begins with Kaloupek and Franko's claims in Counts I and II of their complaint, both of which seek a judgment that Plaintiffs own the Disputed Area. Plaintiffs don't question what's in Trustee Leary's deed to 10 Elberta Terrace, and they agree that the Disputed Area lies entirely within 10 Elberta Terrace as the Trustee's deed describes it. Plaintiffs thus bear the burden of proving their superior title to the Disputed Area by adverse possession, through proof of use of the Disputed Area that is "actual, open, notorious, exclusive and adverse for twenty years." See Lawrence v. Town of Concord, 439 Mass. 416 , 421 (2003); Ryan v. Stavros, 348 Mass. 251 , 262 (1964). Should Plaintiffs fail to prove all four elements ("open" and "notorious" being grouped together), each for a period of at least twenty years, their claim for adverse possession fails. See Sea Pines Condominium III Ass'n v. Steffens, 61 Mass. App. Ct. 838 , 847 (2004).

Plaintiffs' claims to the Disputed Area rest on their activities, and those of the previous owners of 230 Melrose Street, the DerMarderosians, in maintaining, cultivating and occupying the Disputed Area. Those activities meet the standard of "actual" adverse uses. See Chew v. Kwiatkowski, 19 LCR 88 , 91 (2011) (Trombly, J.) ("[A]ctual use" means "that the possessor must be actually utilizing the land that he or she is claiming."). That maintenance, cultivation and occupation was open and notorious: Trustee Leary admitted that he saw the results of those activities prior to purchasing 10 Elberta Terrace. See, for example, Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 44 (2007) ("To be 'open,' the use must be made without attempted concealment.").

The real battle between the parties is over whether Plaintiffs and the DerMarderosians' use of the Disputed Area is sufficiently "exclusive" to give rise to adverse possession, and if so, whether those uses occurred with the permission of Trustee Leary or his predecessors in interest. Two recent Appeals Court cases, decided on the same day, discuss how the "exclusivity" test applies in suburban settings such as the one in this case. In Miller v. Abramson, 95 Mass. App. Ct. 828 (2019), the Millers assumed that a line of shrubs formed the legal boundary between their lot and that of their abutting neighbors, the Abramsons. It turned out that the shrub line started on the boundary, but then extended well inside the Abramsons' property. Nevertheless, for over twenty years, the Millers trimmed the shrubs on "their" side of the shrub line, and mowed, raked and fertilized a lawn that extended continuously from their (record) backyard to the shrub line. The Abramsons never used the area that the Millers maintained.

The second of the two 2019 cases is Mancini v. Spagtacular, 95 Mass. App. Ct. 836 (2019). In Mancini, plaintiff Angela Mancini's predecessors in interest, the Schwabs, bought a residential lot in 1983. Undeveloped, wooded land owned at the time of trial by Spagtacular, LLC bordered the Schwabs' lot on two sides. A distinct tree line ran along both sides, and the Schwabs (like the Millers in Miller) assumed it demarcated the properties' record boundary. For seventeen years the Schwabs maintained two areas on the (record) Spagtacular property. In one area, the Schwabs mowed and fertilized what they believed was their lawn. The other area hosted a large part of a basketball court that straddled the property line. Mancini bought the Schwab property in 2000, and continued maintaining the lawn and the basketball court for the requisite twenty-year prescriptive period. The record owners of the Spagtacular property were on notice of the encroachments but didn't do anything to halt them.

The defendants in both Miller and Mancini argued that lawn maintenance cannot qualify as adverse use. The Appeals Court disagreed. Here's the court's discussion of the issue in Miller:

"The nature and the extent of occupancy required to establish a right by adverse possession vary with the character of the land, the purposes for which it is adapted, and the uses to which it has been put." Moreover, "[e]vidence insufficient to establish exclusive possession of a tract of vacant land in the country might be adequate proof of such possession of a lot in the center of a large city.

In other words, the context supplied by the surrounding landscape is significant in an adverse possession case - a use that is sufficient to establish ownership in a densely populated neighborhood may be inadequate in an isolated, wooded setting. Establishing title requires only that "the possessor must use and enjoy the property continuously for the required period as the average owner would use it, without the consent of the true owner and therefore in actual hostility to [the true owner] irrespective of the possessor's actual state of mind or intent." Miller, 95 Mass. App. Ct. at 833 (brackets in original, citations omitted), quoting LaChance v. First Nat'l Bank & Trust Co. of Greenfield, 301 Mass. 488 , 490 (1938), and Kendall v. Selvaggio, 413 Mass. 619 , 624 (1992). See also Mancini, 95 Mass. App. Ct. at 841-844. Miller took further comfort from MacDonald v. McGillvary, 35 Mass. App. Ct. 902 , 904 (1993) (rescript), where according to Miller "adverse possession was found where the claimant's use of the land 'consisted of little more than maintenance of a suburban lawn.'" Miller, 95 Mass. App. Ct. at 833.

Such is the case here, at least with respect to what this Decision calls the Mowed Area, the part of 10 Elberta Terrace that the DerMarderosian family maintained without Trustee Leary's permission (or that of his predecessors in interest to 10 Elberta Terrace) from 1967 through September 1990. The DerMarderosians' activities in the Mowed Area were such that "people residing in the neighborhood would be justified in regarding the possessor[s] as exercising the exclusive dominion and control incident to ownership," and thereby established "adverse possession in the absence of evidence that [their] possession is under a license or tenancy." Shaw v. Solari, 8 Mass. App. Ct. 151 , 156-157 (1979).

The outcome is different with respect to the Disputed Area outside of the Mowed Area (what this Decision will now call the "External Disputed Area"). Plaintiffs' claims to that area fail because they didn't use it until, at the earliest, September 1990. That delay in the start of the prescriptive period is critical because after the summer of 2002, following Mr. Kaloupek's conversation with Trustee Leary, Plaintiffs' use of the External Disputed Area was by permission. A party who claims title through adverse possession has the burden of showing that the record owner didn't grant the claimant permission to use a disputed area. See Totman v. Malloy, 431 Mass. 143 , 145 (2000). While Plaintiffs' proof of actual, open and exclusive use of the External Disputed Area triggers a presumption under Massachusetts law that such use was without permission, see id. at 146, Trustee Leary has overcome that presumption by proving that he expressly permitted Plaintiffs to use 10 Elberta Terrace as their backyard. Trustee Leary revoked that permission in 2018, when he allowed Crowflight to excavate on 10 Elberta Terrace -- including the areas Plaintiffs were using as their backyard.

The Court thus will enter judgment in favor of Plaintiffs, and against Trustee Leary, on Count I of Plaintiffs' Verified Complaint, but will declare that Plaintiffs have acquired by adverse possession only the Mowed Area, and not the External Disputed Area. (Plaintiffs want the final judgment in this case to incorporate a plan showing what they've acquired by adverse possession. No such plan yet exists. The Court hereby ORDERS Plaintiffs to prepare and submit one, within 30 days of this Decision.)

Count II of the Verified Complaint seeks a judgment quieting title to whatever Plaintiffs have acquired through adverse possession. Two facts surfaced at the conclusion of trial that prevent the Court from doing that: as of the end of the trial, there was at least one encumbrance (a mortgage) on 10 Elberta Terrace, and possibly a second lien. Plaintiffs didn't make the holders of those encumbrances parties to this case. An action to quiet title is "a proceeding in rem against the land," one intended to resolve all questions pertaining to title in that land. See M.G.L. c. 240, §10. This Court cannot enter a judgment quieting title to land where parties who have an interest in that land haven't been given actual or constructive notice of the proceeding. See First Baptist Church of Sharon v. Harper, 191 Mass. 196 , 210 (1906). The Court thus will dismiss Plaintiffs' claims in Count II without prejudice.

Counts III-IV of Plaintiffs' complaint are for trespass as to whatever areas they've acquired by adverse possession (now found to be the Mowed Area), plus injunctive relief. They ask that the Court order Trustee Leary and Crowflight to restore the Mowed Area to its previous height, grade and condition; erect something to prevent collapse of that area; award damages; and enjoin Trustee Leary and Crowflight from further entering that area. Given that this Decision represents the first notice to the parties as to what Plaintiffs have acquired by adverse possession, and where that area is, it is impossible on the current record for the Court to determine which of Plaintiffs' proposed measures is appropriate. The Court thus ORDERS the parties to confer within fourteen days of receipt of this Decision over the issue of remedies. The Court also ORDERS the parties to appear for a telephonic status conference on March 2, 2020, at 10:30 a.m., to discuss how the Court should resolve all remedial issues. In the meantime, the Court ENJOINS Trustee Leary; Crowflight; his, its or their agents; and those acting in concert with Trustee Leary and/or Crowflight from entering the Mowed Area except (a) with permission of either or both of Mr. Kaloupek and Ms. Franko; or (b) to perform emergency measures reasonably required to prevent injury or damage to persons or property outside of the Mowed Area. The Court otherwise VACATES its injunction of April 25, 2019.

SO ORDERED.