NOTICE: 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-1023
vs.
JUDITH L. COMLEY, trustee,1 & others.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This case involves a boundary and easement dispute between
the Commonwealth, through its Department of Fish and Game, and
the defendants, over parcels of land in the William Forward
Wildlife Management Area. In April 2019, the Commonwealth filed
a complaint in the Land Court seeking declaratory and injunctive
relief against the defendants in connection with access and
boundary disputes. The defendants filed an answer, asserting
various affirmative defenses.
The judge set an initial discovery deadline of February 3,
2020, which was continued multiple times to July 22, 2021. The
judge denied the defendants' final motion to extend discovery
1 Of the Kittery Avenue Realty Trust. 2 Seaview Retreat, Inc.; Stephen B. Comley and Judith L. Comley, as trustees of the Seaview Real Estate Trust. (filed on July 22, 2021) and scheduled deadlines for the
Commonwealth to file its summary judgment motion (August 2021
order). In the August 2021 order, the judge noted that the
defendants could use the approximately four months between the
date of the order and the hearing on the motion for summary
judgment to "undertake whatever title work [counsel] deems
necessary." Claiming that the defendants' discovery responses
were inadequate, the Commonwealth filed a motion to compel and
limit the defendants' introduction of certain evidence pursuant
to Mass. R. Civ. P. 37 (b), as amended, 423 Mass. 1406 (1996).
The defendants opposed the motion and filed a motion to
reconsider the August 2021 order (which was denied).3 A single
justice of this court denied the defendants' petition filed
pursuant to G. L. c. 231, § 118, first par.
The Commonwealth filed its motion for summary judgment.
The defendants failed to file a written opposition to the
motion, despite an email message inquiry from the clerk noting
that the opposition was overdue. Instead of filing an
opposition to the motion for summary judgment, counsel for the
3 The judge denied the motion for reconsideration of the August 2021 order and allowed the Commonwealth's motion to compel in part, denied it in part, and denied it without prejudice in part. Specifically, the judge limited the defendants to "the exact responses in their interrogatories in defense of the claims." The judge denied the Commonwealth's request to prohibit the defendants from offering certain evidence and allowed the defendants to offer "any non-title documents."
2 defendants filed a motion to stay hearing on the motion, at 3:49
P.M. the day before the hearing (which had been set at the
August 2021 status conference); the judge denied the motion
concluding that counsel for the defendants claim of lack of
notice was "unsupportable." One hour before the hearing on the
motion, counsel for the defendants filed a "response to the
court's order," which the judge treated as a motion to continue
and denied. At the hearing, counsel for the defendants failed
to address the issues set forth in the Commonwealth's motion for
summary judgment. Rather, counsel tried to raise discovery
issues which had long been resolved and which the judge declined
to entertain anew. The hearing concluded with the judge
informing counsel that he "could talk all [he wanted], within
reason, about the merits of the Commonwealth's motion." When
counsel responded that he was "building a record for appeal,"
the judge noted that there would be no "further discussion of
matters that [she had] already ruled on," and closed the
hearing.
In a thoughtful memorandum of decision and order, the judge
allowed the Commonwealth's motion for summary judgment.4
4 The judge ruled that the Commonwealth's statement of material facts "[were] undisputed or [were] deemed admitted," because the defendants did not file a response. In broad strokes, the judge held that a 1945 taking by the Federal government extinguished the title rights of the owners of certain parcels and resulted
3 Judgment entered in the Commonwealth's favor on all counts of
its complaint. The defendants filed a motion to vacate the
judgment and a motion to recuse, which the judge denied. This
appeal followed.
Discussion. 1. Rulings on motions to extend discovery,
stay and recuse. On appeal, the defendants contend that they
were denied due process of law "throughout the within matter and
more especially during the hearing." They take issue with the
judge's "conduct and decision," but fail to address the basis
for the judgment. The defendants' brief contains no citations
to the record and, as to their recusal argument only, contains
minimal citation to authority.5 See Mass. R. A. P. 16 (a) (9)
(A), as appearing in 481 Mass. 1628 (2019) (appellant's brief
must contain "citations to the authorities and parts of the
record on which the appellant relies"). See also Zora v. State
Ethics Comm'n, 415 Mass. 640, 642 n.3 (1993) ("bald assertions
of error, lacking legal argument and authority," do not rise to
in their predecessors in title conveying real estate rights to them they did not own, therefore, title to these properties rests with the Commonwealth. 5 The notice of appeal only relates to the entry of summary
judgment and does not reference the motion to vacate or the motion to recuse. Accordingly, the latter issues are not before us. See Mass. R. A. P. 3 (a) (1), as appearing in 481 Mass. 1603 (2019); Mass. R. A. P. 3 (c) (1) (A) (ii), as appearing in 491 Mass. 1601 (2023).
4 level of appellate argument). Accordingly, we need not consider
these claims.
Even if we were to consider these issues, the defendants
fare no better. The initial discovery deadline was extended six
times. After two years, the defendants provided deficient
responses on the last day of discovery, and they did not produce
a representative for a deposition noticed by the Commonwealth.
The defendants also complain that an entity from which they
sought information was closed throughout the period of
discovery, however, this was not true.6 Moreover, the
Commonwealth provided documents from this entity to the
defendants, which they did not utilize or reference during the
entirety of the litigation. On this record, the judge did not
abuse her discretion in denying the defendants' motion to extend
discovery for a seventh time. See Judge Rotenberg Educ. Ctr.,
Inc. v. Commissioner of Dep't of Mental Retardation (No. 1), 424
Mass. 430, 461-462, S.C., 424 Mass. 471, 424 Mass.
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NOTICE: 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-1023
vs.
JUDITH L. COMLEY, trustee,1 & others.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This case involves a boundary and easement dispute between
the Commonwealth, through its Department of Fish and Game, and
the defendants, over parcels of land in the William Forward
Wildlife Management Area. In April 2019, the Commonwealth filed
a complaint in the Land Court seeking declaratory and injunctive
relief against the defendants in connection with access and
boundary disputes. The defendants filed an answer, asserting
various affirmative defenses.
The judge set an initial discovery deadline of February 3,
2020, which was continued multiple times to July 22, 2021. The
judge denied the defendants' final motion to extend discovery
1 Of the Kittery Avenue Realty Trust. 2 Seaview Retreat, Inc.; Stephen B. Comley and Judith L. Comley, as trustees of the Seaview Real Estate Trust. (filed on July 22, 2021) and scheduled deadlines for the
Commonwealth to file its summary judgment motion (August 2021
order). In the August 2021 order, the judge noted that the
defendants could use the approximately four months between the
date of the order and the hearing on the motion for summary
judgment to "undertake whatever title work [counsel] deems
necessary." Claiming that the defendants' discovery responses
were inadequate, the Commonwealth filed a motion to compel and
limit the defendants' introduction of certain evidence pursuant
to Mass. R. Civ. P. 37 (b), as amended, 423 Mass. 1406 (1996).
The defendants opposed the motion and filed a motion to
reconsider the August 2021 order (which was denied).3 A single
justice of this court denied the defendants' petition filed
pursuant to G. L. c. 231, § 118, first par.
The Commonwealth filed its motion for summary judgment.
The defendants failed to file a written opposition to the
motion, despite an email message inquiry from the clerk noting
that the opposition was overdue. Instead of filing an
opposition to the motion for summary judgment, counsel for the
3 The judge denied the motion for reconsideration of the August 2021 order and allowed the Commonwealth's motion to compel in part, denied it in part, and denied it without prejudice in part. Specifically, the judge limited the defendants to "the exact responses in their interrogatories in defense of the claims." The judge denied the Commonwealth's request to prohibit the defendants from offering certain evidence and allowed the defendants to offer "any non-title documents."
2 defendants filed a motion to stay hearing on the motion, at 3:49
P.M. the day before the hearing (which had been set at the
August 2021 status conference); the judge denied the motion
concluding that counsel for the defendants claim of lack of
notice was "unsupportable." One hour before the hearing on the
motion, counsel for the defendants filed a "response to the
court's order," which the judge treated as a motion to continue
and denied. At the hearing, counsel for the defendants failed
to address the issues set forth in the Commonwealth's motion for
summary judgment. Rather, counsel tried to raise discovery
issues which had long been resolved and which the judge declined
to entertain anew. The hearing concluded with the judge
informing counsel that he "could talk all [he wanted], within
reason, about the merits of the Commonwealth's motion." When
counsel responded that he was "building a record for appeal,"
the judge noted that there would be no "further discussion of
matters that [she had] already ruled on," and closed the
hearing.
In a thoughtful memorandum of decision and order, the judge
allowed the Commonwealth's motion for summary judgment.4
4 The judge ruled that the Commonwealth's statement of material facts "[were] undisputed or [were] deemed admitted," because the defendants did not file a response. In broad strokes, the judge held that a 1945 taking by the Federal government extinguished the title rights of the owners of certain parcels and resulted
3 Judgment entered in the Commonwealth's favor on all counts of
its complaint. The defendants filed a motion to vacate the
judgment and a motion to recuse, which the judge denied. This
appeal followed.
Discussion. 1. Rulings on motions to extend discovery,
stay and recuse. On appeal, the defendants contend that they
were denied due process of law "throughout the within matter and
more especially during the hearing." They take issue with the
judge's "conduct and decision," but fail to address the basis
for the judgment. The defendants' brief contains no citations
to the record and, as to their recusal argument only, contains
minimal citation to authority.5 See Mass. R. A. P. 16 (a) (9)
(A), as appearing in 481 Mass. 1628 (2019) (appellant's brief
must contain "citations to the authorities and parts of the
record on which the appellant relies"). See also Zora v. State
Ethics Comm'n, 415 Mass. 640, 642 n.3 (1993) ("bald assertions
of error, lacking legal argument and authority," do not rise to
in their predecessors in title conveying real estate rights to them they did not own, therefore, title to these properties rests with the Commonwealth. 5 The notice of appeal only relates to the entry of summary
judgment and does not reference the motion to vacate or the motion to recuse. Accordingly, the latter issues are not before us. See Mass. R. A. P. 3 (a) (1), as appearing in 481 Mass. 1603 (2019); Mass. R. A. P. 3 (c) (1) (A) (ii), as appearing in 491 Mass. 1601 (2023).
4 level of appellate argument). Accordingly, we need not consider
these claims.
Even if we were to consider these issues, the defendants
fare no better. The initial discovery deadline was extended six
times. After two years, the defendants provided deficient
responses on the last day of discovery, and they did not produce
a representative for a deposition noticed by the Commonwealth.
The defendants also complain that an entity from which they
sought information was closed throughout the period of
discovery, however, this was not true.6 Moreover, the
Commonwealth provided documents from this entity to the
defendants, which they did not utilize or reference during the
entirety of the litigation. On this record, the judge did not
abuse her discretion in denying the defendants' motion to extend
discovery for a seventh time. See Judge Rotenberg Educ. Ctr.,
Inc. v. Commissioner of Dep't of Mental Retardation (No. 1), 424
Mass. 430, 461-462, S.C., 424 Mass. 471, 424 Mass. 473, and 424
Mass. 476 (1997), 492 Mass. 772 (2023) (denial of motion to
extend discovery to allow additional deposition within judge's
discretion).
6 The entity was open during the discovery period, prior to its closure due to the COVID-19 pandemic, and by August 2021, was open by appointment. Indeed, the initial discovery deadline was February 3, 2020, at least one month before COVID-19 related closures.
5 For similar reasons, the judge also did not abuse her
discretion in denying the defendants' last-minute motion to stay
the summary judgment hearing, as the basis for that motion was
the defendants' request to extend discovery. See Beninati v.
Beninati, 18 Mass. App. Ct. 529, 534-535 (1984) (where court
gave notice trial would take place in three months, no abuse of
discretion to proceed where counsel objected on scheduled trial
day). Nor did the judge abuse her discretion in denying the
defendants' post judgment motion for recusal. Simply put, a
review of the transcript of the hearing does not support the
defendants' description of the judge's actions. It demonstrates
that, despite repeated interruptions by counsel, the judge
provided him multiple opportunities to address the merits of the
summary judgment motion, but he failed to do so, instead
insisting on rehashing prior discovery rulings. The transcript
does not support the claim of judicial bias or prejudice, and
accordingly, recusal was not warranted. See Erickson v.
Commonwealth, 462 Mass. 1006, 1007 (2012) (no showing judge "was
biased . . . or that [her] ruling was 'influenced by any
considerations other than the law'" [citation omitted]).
2. Summary judgment motion. Once again, the defendants'
brief fails to meaningfully address the merits of their claims,
and thus their claims "do not rise to [the] level of appellate
argument and need not be considered." Halstrom v. Dube, 481
6 Mass. 480, 483 n.8 (2019). Furthermore, the defendants failed
to challenge the Commonwealth's motion for summary judgment in
writing or during the hearing. The Commonwealth filed its
motion and related materials on February 17, 2022. Following
that filing, the defendants filed a motion to stay on March 29,
2022, and filed a "response" to the judge's denial of that
motion on March 30, 2022. A review of the docket confirms that
the defendants failed to file any written opposition to the
Commonwealth's motion. They also failed to file a Mass. R. Civ.
P. 56 (f), 365 Mass. 824 (1974), affidavit explaining why they
could not oppose the motion. See Aronson v. Commonwealth, 401
Mass. 244, 254-255 (1987). This failure is fatal to the
defendants' claim. See Baker v. Monga, 32 Mass. App. Ct. 450,
453 (1992). A similar review of the transcript supports the
conclusion that the defendants did not oppose the motion,
electing instead to revisit prior discovery-related rulings.
With no opposition, the facts as alleged by the Commonwealth
were undisputed, and applying the law to those facts, we
conclude that the motion for summary judgment was properly
granted. See Costa v. Fall River Hous. Auth., 453 Mass. 614,
619 (2009) (decision "will be upheld if the trial judge ruled on
7 undisputed material facts and [her] ruling was correct as a
matter of law" [citation omitted]).7
Judgment affirmed.
By the Court (Meade, Blake & Desmond, JJ.8),
Assistant Clerk
Entered: February 15, 2024.
7 "To the extent that we have not specifically addressed other points made . . . in [the defendants'] brief, they 'have not been overlooked. We find nothing in them that requires discussion.'" Commonwealth v. Brown, 479 Mass. 163, 168 n.3 (2018), quoting Commonwealth v. Domanski, 332 Mass. 66, 78 (1954). 8 The panelists are listed in order of seniority.