MISC 19-000418

August 7, 2020

Suffolk, ss.



This action was commenced by plaintiff Richard Gargiulo ("Mr. Gargiulo") with the filing of his complaint ("the Complaint") on August 29, 2019 against defendant Elida Sanchez ("Ms. Sanchez"). In the Complaint, Mr. Gargiulo sought a declaratory judgment that two large oak trees ("the Oak Trees") are located on both his property and Ms. Sanchez's property and not solely on Ms. Sanchez's property, with the result that, according to Mr. Gargiulo, Ms. Sanchez could not remove the Oak Trees without Mr. Gargiulo's permission. Mr. Gargiulo sought an order from this court barring Ms. Sanchez from removing the Oak Trees.

On December 4, 2019, Ms. Sanchez filed her answer denying Mr. Gargiulo's claims and filed counterclaims seeking: (i) damages for trespass to land, based on Mr. Gargiulo's installment of a fence ("the Fence"), a portion of which allegedly encroaches on her property; (ii) to quiet title to her property under G.L. c. 240, ยง1; (iii) a declaratory judgment adjudicating the boundary line between the parties' properties; and (iv) an action for ejectment addressed to the existence of Mr. Gargiulo's Fence on her property.

On February 26, 2020, Ms. Sanchez filed Defendant's Motion For Summary Judgment and supporting pleadings ("the Summary Judgment Motion"). On July 14, 2020, the court held a hearing on the Summary Judgment Motion by telephone. On August 6, 2020, the court (Roberts, J.) issued a memorandum of decision ALLOWING the Summary Judgment Motion.

In accordance with the court's memorandum of decision, it is

ORDERED, ADJUDGED and DECLARED, on Mr. Gargiulo's complaint, that Ms. Sanchez is the owner of the Oak Trees shown on a surveyor's plot plan prepared by Dennis O'Brien Land Surveying ("the Plan"), a copy of which is attached to this Judgment, that Ms. Sanchez is entitled to remove any portion of the Oak Trees within the boundaries of her property, and that Mr. Gargiulo does not hold an ownership interest in the Oak Trees.

It is further

ORDERED and ADJUDGED on Count I of Ms. Sanchez's counterclaim that the Fence, insofar as it is on the Sanchez Property as shown on the Plan, constitutes a trespass on the Sanchez Property.

It is further

ORDERED that Mr. Gargiulo shall, no later than thirty (30) days from the issuance of this Judgment, remove or cause to have removed the portion of the Fence that encroaches onto the Sanchez Property.

It is further

ORDERED and ADJUDGED that this Judgment is a full adjudication of all the parties' claims in this case, and all prayers for relief by any party in this action which are not granted in the preceding paragraphs are denied.