Opinion
13-P-1927
02-25-2015
GORDON W. TYRA v. BENJAMIN L. HALL, individually and as trustee and personal representative.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
The defendant, Benjamin L. Hall, appeals from a Land Court decision ordering entry of registration in the plaintiff of title to land under G. L. c. 185, § 45. The defendant broadly asserts that the Land Court judge erred in finding that the plaintiff carried his burden to show that the land was fit for registration. We affirm.
The defendant also appeals from the order denying his motion to correct the decision and for a new trial. A footnote in the memorandum accompanying that order states that for purposes of appeal, the "judgment" is the "Court's Decision on [the] merits."
Background. We take the essential procedural background and facts from the judge's decision. The Tyras, on December 2, 1983, filed a petition for registration of an approximately 7.25 acre rectangular parcel of land in Edgartown shown on a 1982 plan (the Tyra parcel). An examiner was appointed by the court in December, 1983, to conduct a title examination. In his report issued on February 13, 1991, he found that the Tyras had good title suitable for registration, with the exception of a small portion, which became known as the "gore" parcel. Notice of the Tyras' registration petition was given to all abutters and published generally. Only Benjamin L. Hall and his late wife, Therese, responded, claiming ownership of the gore parcel and challenging the boundary between the southern end of the rectangular parcel and the gore parcel. The Tyras moved on November 20, 1998, to withdraw the gore parcel from their petition; the judge allowed the motion on July 19, 2007, and the Tyras substituted a new plan in their petition for registration (the 1996 plan).
The judge noted that the Oxford Concise English Dictionary 612 (1999), defines a gore as a triangular piece of land.
The parties stipulated that the issues for trial were (1) the location of the common boundary line between the Tyra parcel and the gore lot, and (2) the existence and location of various ways across the Tyra parcel, and the rights, if any, of others to use those ways.
A jury-waived trial was held on January 26 and 27, 2009. On October 3, 2013, the judge found that the Tyras established registrable title to the land shown on the 1996 plan and ordered the entry of registration. Following the denial of his motion for a new trial on October 18, 2013, Hall filed this appeal.
Discussion. The judge's decision. In a thoroughly detailed analysis, based on his findings of location and boundaries determined by the court-appointed title examiner, Philip Norton, and the registered surveyor, Glenn Provost, the judge concluded that (1) the Tyras established good title to the land shown on the 1996 plan, proper for registration, and (2) they met their burden to show there are no rights of access or use in others to the paths across the property.
Hall argues that it was error for the judge to allow registration of the Tyras' land, broadly asserting that it did not meet Land Court standards and was based entirely on hearsay. The argument covers thirty-six pages of Hall's brief. After carefully distilling the argument, only a few specific matters remain which we note as follows, but conclude they are without merit.
1. Hall asserts that the examiner should have examined titles to the Tyra parcel running back to a common grantor. The judge noted that only a fifty-year search is required by G. L. c. 93, § 70, and the Real Estate Bar Association Title Standard No. 1. The examiner's search actually ran to an 1879 deed in the gore parcel's chain of title, a span of some 112 years to 1982. The examiner used the 1879 deed as the starting point for his abstract of title to the Tyra parcel.
The judge found that the Tyras had good title to all land shown on the 1982 plan with the exception of the gore parcel, which had been excluded from the petition. He found that the method used by Norton to establish the boundaries of their parcel conformed to standard practice and was the proper approach. Compare Paull v. Kelly, 62 Mass. App. Ct. 673, 680 (2004) (use of "abutter calls" to determine boundaries). The surveyor, Provost, confirmed the boundaries of the Tyra parcel as shown in the 1982 plan through field observations, established the line of separation between the Tyra parcel and the gore parcel, and prepared the 1996 plan. Therefore, because Norton and Provost independently made their determinations by first-hand observations, there is no merit in Hall's assertion that they relied on the 1982 plan as inadmissible hearsay. Moreover, the judge found that "no competent, credible evidence was introduced that casts doubt on any of the other lines surveyed and set . . . in 1982."
The wide-ranging assertions made by Hall that the Tyras' plan did not meet Land Court standards appear to be repetitious and narrative restatements of arguments made in several pretrial motions and throughout the trial and now fail to undermine any of the judge's findings.
2. Hall asserts the judge abused his discretion in permitting Provost to testify as an expert without determining whether his opinion would qualify under the principles of cases incorporating Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Those cases have no application here. The judge evaluated the qualifications of both Norton and Provost. He stated that Norton is an experienced real estate attorney who regularly reviews and certifies titles for First American Title Company, was first appointed by the Land Court in the 1970s, and has acted as a title examiner for the court between twenty and thirty times. He stated that Provost, a registered land surveyor who began his career in 1968, has appeared as a survey witness in Superior Court and Land Court proceedings approximately twenty times. The judge stated that the Halls did not introduce any countervailing testimony from a surveyor of their own. The judge also noted that the Halls hired Provost to survey the gore parcel and adopted his survey in a plan of that parcel that was recorded in 1997. Norton and Provost were amply qualified to offer opinion evidence, and they relied on well-accepted principles within their areas of expertise. The judge acted well within his discretion to accept their testimony.
3. In a single sentence at the end of his brief, Hall asserts that the judge erred in allowing the Tyras' motion to sever and dismiss their original petition plan and that another judge erred in denying Hall's motion for summary judgment or to preclude the Tyras' witnesses from testifying whether their land was fit for registration. Hall engages in a lengthy discussion of this issue in his reply brief to no avail. Issues raised in a reply brief come too late. Mass.R.A.P.16(a)(4), as amended, 367 Mass. 919 (1975). Kelley v. Rossi, 395 Mass. 659, 665 n.6 (1985).
4. Finally, Hall appears to have abandoned his claim that he has a right to use paths over the Tyras' land. No argument appears contesting the judge's conclusion that the Halls called only one witness and no other "to testify to their personal use, much less general use by the public, of any pathway across the Tyra parcel. In these circumstances, the absence of such evidence is evidence that there was no such public right."
The Tyras' request for attorney's fees is denied.
Decision and order allowing registration affirmed.
Order denying motion to correct decision or for new trial affirmed.
By the Court (Cypher, Fecteau & Massing, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: February 25, 2015.