Opinion
21-P-70
02-23-2022
CRAIG A. BROWN & another[1] v. JEFFREY S. ENTIN, trustee, [2] & another.[3]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a five day jury-waived trial, a Superior Court judge resolved a boundary dispute in favor of plaintiffs Craig A. Brown and his wife Jessica E. Brown (collectively, Browns), finding that they had established title to a disputed area of about four acres of land (disputed area) . The judge found that the disputed area had been deeded twice, first in 1913 as part of a parcel sold to the Browns' predecessor-in-title, and again in 1921 as part of a parcel sold to the predecessor-in-title of defendants Jeffrey S. Entin and his wife Theresa A. Entin (collectively, Entins), as trustees of the Entin Inter Vivos Trust. The Entins appeal, arguing that the judge: (1) erred in 1 determining the southern boundary of the Browns' property, because he did not credit testimony of defense witnesses that certain stones were the remnants of a wall; (2) improperly struck testimony that the surveyor who did work in connection with the 1913 deed was "very poor" in measuring distances; (3) should have allowed the Entins' postjudgment motion for a view; and (4) should have permitted postjudgment discovery for deposition of the former owner of the Browns' property. We affirm.
Background.
The following were facts found by the judge, supplemented by other details adduced at trial. After Franklin Phillips (Phillips) died in 1912, his real property was appraised as consisting of "[a]bout [six and one half] acres of land and buildings thereon on Jerome St. Berkley" and a "[w]oodlot, Jerome St. Berkley, [twenty-eight] acres." To satisfy his debts, the Probate Court ordered his estate to sell the former parcel. It was sold in 1913 to Florence G. Delano, and the deed described the property as:
"a lot on the west side of Jerome Street, containing six and one half acres more or less and bounded, on the north by land of George E. Westgate by a wall; on the west by woodland formerly of Franklin Phillips by a wall, on the south by wood lot formerly of Franklin Phillips by a wall and by land of Charles F. Phillips, on the east by said Jerome Street" (emphasis added).2
The southern boundary of that property, and to some degree the western boundary, were in dispute at trial. The Browns trace the chain of title to their property back to that 1913 deed.
In 1921, Phillips's heirs sold about six acres of land to his brother Charles. That deed mentioned no buildings and no wall along its northern boundary. The Entins trace their chain of title back to that deed.
The Browns bought 58 Jerome Street in 2009. It included a house with six rooms that was built before 1912. In 2010, they hired professional licensed surveyor Robert S. Staples to survey their property. While performing that survey, Staples noted that the area to the west was swampy and stony, consistent with the "woodland" described in the 1913 deed, and the area to the south contained cut and stacked wood, consistent with its having been used as a "wood lot." Staples's survey determined that the Browns owned 6.13 acres of land. That survey was recorded in the Registry of Deeds in 2010, and Staples opined at trial that it accurately represented the boundaries of the Browns' property. Between 2010 and 2016, the town used Staples's survey in assessing the Browns' property. The Browns erected a wire fence at the southern boundary of their property. 3
About one-half acre had been sold to an abutter in 1973.
In 2016, Jeffrey Entin signed a purchase and sale agreement to buy 52 Jerome Street from the estate of Nora Cox, whose heirs lived out of State. At that time, there were no structures on the property. Subsequently the Entins took title to the property and transferred it into the trust.
The purchase and sale agreement described 52 Jerome Street as consisting of "7.02 acres of land," and required the seller to provide title insurance. Upon resolution of this dispute, Jeffrey Entin anticipates paying a to-be-determined sum to the seller.
The Entins retained professional licensed surveyor Otis Dyer to survey their property. At the time, Dyer did not realize that the deed for the Browns' property described a stone wall on its southern boundary, and so the survey he produced in January 2017 did not depict any wall there. Jeffrey Entin wrote to the Browns, enclosing a copy of Dyer's January 2017 survey and demanding that they take down their fence. At Jeffrey Entin's request, and based on Dyer's January 2017 survey, the town revised the assessed boundary line of the Browns' property.
In 1963, Dyer had previously surveyed what became the Entins' property.
After the Browns filed their complaint to quiet title, the Entins obtained another survey from Dyer. This one, dated June 2017, depicted the southern boundary of the Browns' property in a different location than had Dyer's two prior surveys. The newly located boundary was denoted on Dyer's June 2017 survey as 4 "[f]ound [r]emains [o]f [w]all." Craig Brown had walked in that area many times and never saw any organized or continuous line of stones. The Browns' expert geologist opined that there was no stone wall there.
Craig Brown obtained from the Berkley Historical Society a copy of an 1895 map that depicted Phillips's property as having two buildings. One of them was the house in which the Browns lived. In the area corresponding to a barn on the 1895 map, Craig Brown found a large rectangle of stones. Using a metal detector, he found remnants of tools including a pitchfork end, an axe head, and scythe blades. That barn was located within the disputed area.
The judge credited the 2010 survey compiled by the Browns' surveyor, Staples. The judge found that the disputed area had been deeded twice, first as part of the six and one-half acres sold in 1913 to the Browns' predecessor-in-title, and again as part of the six acres sold in 1921 to the Entins' predecessor-in-title, and ruled that the earlier deed controlled. The judge explicitly declined to credit the surveys by the Entins' surveyor, Dyer, or his testimony about the remnants of a stone wall where he had placed the Browns' southern boundary. The judge found that those stones were not in fact a wall, but only "stones strewn on the ground, neither piled nor aligned into a 5 formation resembling a stone[]wall." Judgment for the Browns entered, and the Entins appealed.
The Entins moved to alter or amend the judgment, Mass. R. Civ. P. 59 (e), 365 Mass. 827 (1974), arguing that the judge should take a view of the property and change his finding about the absence of a stone wall. The judge denied the motion. The Entins filed notice of appeal.
The Entins then moved to reopen the evidence, Mass. R. Civ. P. 60 (b) (2), 365 Mass. 828 (1974), to take the deposition of the former owner of the Browns' property. That motion was supported by an affidavit of Jeffrey Entin relaying that, in a telephone conversation after trial, the former owner had described a stone wall on the property. The judge denied the motion, and the Entins did not appeal.
Discussion.
1. Sufficiency of evidence.
The Entins argue that the judge's findings of fact were clearly erroneous and an abuse of his discretion, because he declined to credit the testimony of defense witnesses that the assortment of stones identified by Dyer were the remnants of a stone wall that constituted the southern boundary of the Browns' property.
Because the judge was the trier of fact, we accept his findings unless shown to be clearly erroneous, and we give due regard to his opportunity to judge the credibility of witnesses. Mass. R. Civ. P. 52 (a), as amended, 423 Mass. 1402 (1996). The 6 Browns bore the burden of proving by a preponderance of the evidence their title to the disputed area. See Bernier v. Fredette, 85 Mass.App.Ct. 265, 269 (2014). "When a boundary line is in controversy, it is 'a question of fact on all the evidence, including the various surveys and plans . . . where the true line originally ran, and was to be established.'" Paull v. Kelly, 62 Mass.App.Ct. 673, 679 (2004), quoting Hurlbut Rogers Mach. Co. v. Boston & Me. R.R., 235 Mass. 402, 403 (1920). "The location on the ground today of what was described in the [1913] deed . . . presents a question of fact, . . . to be decided 'on all the evidence, including various surveys and plans.'" Bernier, supra at 2 68, quoting Hurlbut Rogers Mach. Co., supra at 403. "It was for the judge to decide whether upon all the testimony and evidence it was more accurate to rely on one expert over another or ancient plans over more recent plans." Bernier, supra at 268. See Holmes v. Barrett, 269 Mass. 497, 502 (1930).
As to the Browns' southern boundary, the 1913 deed described the property as bounded "on the south by wood lot formerly of Franklin Phillips by a wall and by land of Charles F. Phillips." The judge credited Staples's testimony and his 2010 survey, which placed the Browns' southern boundary at a stone wall and extending from it to another stone wall near Jerome Street, along the line where Craig Brown had erected the 7 wire fence. The judge found that placing the Browns' southern boundary in that location meant that it "lines up with a wall, which abuts a parcel then owned by Charles Phillips and currently owned by the Entins."
The judge declined to credit the testimony of the Entins' surveyor that stones depicted in photographs were the remnants of a wall, which would have placed the Browns' southern boundary farther to the north. It was for the judge to decide whether to credit the testimony of the Browns' surveyor, Staples, over that of the Entins' surveyor, Dyer. See Bernier, 85 Mass.App.Ct. at 268.
The Entins find fault with the judge's comment that expert testimony was not necessary for him to determine that the stones were not the remnants of a wall, because "you know it when you see it." We agree that expert testimony was not necessary. See Mass. G. Evid. § 701 (2021). Contrast Mattoon v. Pittsfield, 56 Mass.App.Ct. 124, 140 (2002) (expert testimony necessary to establish that presence of beavers in watershed area caused water to become not potable). In any event, the judge did hear testimony of experts presented by both parties about whether the stones constituted a wall.
As to the Browns' western boundary, the 1913 deed described the property as bounded "on the west by woodland formerly of Franklin Phillips by a wall." The Entins argue that because there was no evidence that Phillips ever owned the land to the west, the judge's finding as to the western boundary of the Browns' property was clearly erroneous, and this error infected his findings as to the southern boundary. The argument is 8 unavailing, because the parties stipulated that a "strong New England stone wall" runs along the western boundary of the disputed parcel. As Staples explained, that monument call referencing the stone wall took priority over the abutter call. See Holmes, 269 Mass. at 500. See also White v. Hartigan, 464 Mass. 400, 411 (2013).
2. Testimony on practices of surveyor in 1913.
The Entins argue that the judge erred in striking the testimony of their surveyor, Dyer, about the habits of Elmer Robinson, who had rendered surveying services to Phillips' estate. Dyer testified that beginning in 1936, when he was eleven years old, he worked in his own father's surveying business and knew Robinson, who was then "an old, old man." Dyer asserted, "I can pick out a[n] Elmer Robinson survey just like that," and Robinson's angles and bearings were "good," but his "[d]istances were very poor." Because Robinson's survey was not in evidence, the judge sustained the objection and struck the testimony.
The Entins argue that Dyer's testimony about Robinson's surveying practices was admissible evidence as the routine practice of a business. We disagree. "A habit is a regular response to a repeated situation with a specific type of conduct." Palinkas v. Bennett, 416 Mass. 273, 277 (1993). See Mass. G. Evid. § 406(a) (2021) . Because no survey by Robinson of the property conveyed in the 1913 deed was in evidence, there 9 was no evidence of his specific conduct, much less that it was in regular response to a repeated situation. Contrast Palinkas, supra at 276-277 (doctor properly testified to his own routine practice in advising parents on care of premature newborns); O'Connor v. SmithKline Bio-Science Labs., Inc., 3 6 Mass.App.Ct. 360, 365 (1994) (toxicologist's affidavit, stating her own routine practice in ensuring samples' seals were intact, admissible as business custom). Rather, Dyer's testimony that Robinson was "very poor" at recording distances and "always left the course out" was a judgment on Robinson's character as a supposedly sloppy surveyor, and so was inadmissible. See Maillet v. ATF-Davidson Co., 407 Mass. 185, 187-188 (1990); Figueiredo v. Hamill, 385 Mass. 1003, 1003 n.l (1982). See also Mass. G. Evid. § 404(a)(1) (2021).
3. Absence of a view.
The Entins now argue that the judge should have taken a view of the disputed area. Just after the close of evidence, the Browns suggested that the judge take a view, but the Entins objected, complaining, "[T]he snow is deep and we'd really be wasting the court's time if we try." The judge agreed. In those circumstances, the Entins did not preserve the issue for appellate review. See Hoffman v. Houghton Chem. Corp., 434 Mass. 624, 639 (2001).
After trial, the Entins argued in their motion to alter or amend the judgment, Mass. R. Civ. P. 59 (e), that the judge 10 should take a view of the disputed area and change the judgment to find that the stones depicted on Dyer's June 2017 survey were the remnants of a stone wall demarcating the Browns' southern boundary. In denying that motion, the judge concluded that the "multitude of plans, sketches, photographs, and other exhibits admitted in evidence, along with the detailed testimony explaining the exhibits, rendered a view unnecessary."
During trial, and certainly on a postjudgment motion, the decision to allow or deny a view was in the judge's discretion. See Mass. G. Evid. § 1109(a)(1) (2021). A view is not evidence but is meant to aid the fact finder in understanding the evidence. See Talmo v. Zoning Bd. of Appeals of Framingham, 93 Mass.App.Ct. 626, 629 n.5 (2018). The judge did not abuse his discretion in ruling that a view was not necessary because he, as trier of fact, had ample evidence on which to base his findings. Moreover, a view at the time of trial could not have replicated how the disputed area appeared in 1913. See, e.g., Commonwealth v. Cataldo, 423 Mass. 318, 327 n.8 (1996) (judge 11 properly denied jury view, which could not replicate crime that took place in early morning hours with noise and activity of bar patrons).
The judge reviewed dozens of depictions of the disputed area, including: the 1895 historical society map; United States Geological Survey images taken in 1941; aerial photographs taken in the 1950s; surveyors' plans done in 1963, 2010, 2017, and 2018; a geologist's map of the stone walls based on a 2017 site visit; and light detection and ranging (LIDAR) images. The judge also heard the testimony of many witnesses who had visited the disputed area at various times of the year during the decade before trial.
4. Denial of motion for postjudgment deposition.
The Entins argue that the judge abused his discretion in denying their postjudgment motion to reopen the evidence to depose the former owner of the Browns' property. Because the Entins failed to appeal that order, this issue is not properly before us. If we were to consider it, their claim would be unavailing. As the judge ruled, Jeffrey Entin's affidavit relaying his telephone conversation with the former owner did not amount to newly discovered evidence under Mass. R. Civ. P. 60 (b) (2), because the Entins could have found the former owner before trial "by the exercise of reasonable diligence." Poskus v. Lombardo's of Randolph, Inc., 48 Mass.App.Ct. 527, 528 (2000). See Gaw v. Sappett, 62 Mass.App.Ct. 405, 408 (2004). Beyond that, the information contained in Jeffrey Entin's affidavit was hearsay. See Demoulas v. Demoulas, 432 Mass. 43, 55 (2000). See also Clamp-All Corp. v. Foresta, 53 Mass.App.Ct. 795, 808 n.5 (2002) (conclusory statements in affidavit inadequate basis for rule 60 [b] motion).
5. Appellate fees.
The Browns seek an award of appellate attorney's fees and double costs pursuant to Mass. R. A. P. 25, as appearing in 481 Mass. 1654 (2019), on the ground that the 12 Entins' appeal is frivolous. See G. L. c. 211A, § 15. Because the Entins had "no reasonable expectation of a reversal," Allen v. Batchelder, 17 Mass.App.Ct. 453, 458 (1984), we agree that their appeal was frivolous, and an award of appellate attorney's fees and double costs is appropriate. See Avery v. Steele, 414 Mass. 450, 455-457 (1993). Consistent with the requirements of Fabre v. Walton, 441 Mass. 9, 10 (2004), the Browns may file a request for appellate attorney's fees and costs, along with supporting documentation, within fourteen days of the issuance of the decision in this case. The Entins shall have fourteen days thereafter within which to respond.
This court has awarded attorney's fees pursuant to G. L.c. 211A, § 15, and Mass. R. A. P. 25. See Britt v. Rosenberg, 40 Mass.App.Ct. 552, 555 (1996). See also Worcester v. AME Realty Corp., 77 Mass.App.Ct. 64, 72 (2010) (rule 25 permits award of single or double costs and "just damages," which may include attorney's fees).
The request should be detailed enough to properly calculate a fee award. See Fontaine v. Ebtec Corp., 415 Mass. 309, 324-325 (1993) (setting out relevant factors).
Judgment affirmed.
The panelists are listed in order of seniority.