Opinion
18-P-236
04-23-2019
JOHN D. HALLISEY v. FREEMAN H. ALLISON & others.
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
John D. Hallisey, an attorney proceeding pro se, commenced this partition action in 2006 in the Probate and Family Court. The defendants filed objections, each generally claiming that Hallisey's description of the locus was insufficient to identify it as required by G. L. c. 241, § 6. The partition action was inactive, though not stayed by order of the Probate and Family Court, between January of 2007 and November 25, 2016. There were no substantive docket entries during that time period and no record of an agreement to stay the proceedings. It is undisputed, however, that in 2007, Hallisey intervened in a related action in the Land Court to quiet title, which was resolved in 2012. Title to the locus, however, was not determined in that action, which only resolved the location of a private way forming the boundary of the locus. Indeed, the Land Court judge specifically provided that Hallisey's, Allison's, and the Coughlans' title was not determined. Hallisey also asserts that he was involved in a related "title" action in the Probate and Family Court which resolved in 2016.
No effort was made to resume the partition action until November 26, 2016, when Hallisey filed a motion to amend the petition with a new description of the locus and to "sever and dismiss" the northernmost and easternmost portions of the previously claimed locus. Allison and the Coughlans filed a joint motion to dismiss, arguing that the description contained in the petition for partition is insufficient for identification as required by G. L. c. 241, § 6, and essentially arguing that Hallisey does not have title to the locus. They relied on the affidavit of Donald T. Poole, a local land surveyor. Hallisey opposed the motion, arguing that his amended description sufficiently identifies the locus and challenging the defendants' assertion of title as unsupported. After a hearing, a Probate and Family Court judge dismissed the petition for partition with prejudice. He found that the locus is not sufficiently identified and, in any event, it is not clear what interest, if any, Hallisey's predecessor-in-interest had in the locus to pass on to Hallisey. Moreover, the judge noted that "Hallisey has not been vigilant in his duty to provide with reasonable certainty a description of the parcel of land in dispute, despite having over ten (10) years to do so."
Hallisey filed two motions for reconsideration, the first arguing that (i) he had been diligent in pursuing litigation related to the land at issue in other actions since this action was commenced in 2006, and the other related actions resolved in 2012 and 2016, (ii) the Coughlans failed to claim title in their answer, and (iii) he should be allowed to proceed in the Probate and Family Court or that the dismissal should be without prejudice to allow him to transfer or to bring a partition action in the Land Court. The judge denied the motion. Hallisey's second motion for reconsideration offered a new description as shown on a subdivision plan and an affidavit of a title examiner, explained the circumstances of the transfer from Hallisey's immediate predecessor-in-title, and repeated his request to be allowed to proceed in either the Probate and Family Court or in the Land Court. The second motion was also denied.
Discussion. On appeal, Hallisey confines his argument to two procedural issues. He first contends the Probate and Family Court judge wrongfully transformed a motion to dismiss into a motion for summary judgment without notice to the parties. Hallisey, however, submitted two motions for reconsideration and did not put the judge on notice that he (Hallisey) opposed the entry of judgment of dismissal on this ground. He, therefore, waived the issue. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006).
Hallisey next argues that he was served with the motion to dismiss only nine days instead of the ten days before the time fixed for hearing required under Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002). Again, Hallisey failed to make this argument to the judge in either of his two motions for reconsideration. Nor did Hallisey submit an affidavit pursuant to Mass. R. Civ. P. 56 (f), 365 Mass. 824 (1974), to identify any reason he was unable to produce opposing affidavits. Moreover, a judge has "discretion to forgive a failure to give the prescribed ten-day notice if it is apparent that 'the failure does not affect the opposing party's opportunity to develop and prepare a response.'" Makino, U.S.A., Inc. v. Metlife Capital Credit Corp., 25 Mass. App. Ct. 302, 317 (1988), quoting USTrust Co. v. Kennedy, 17 Mass. App. Ct. 131, 135 (1983). There has been no showing that Hallisey was unable to develop and to prepare a response to the motion to dismiss. Indeed, he submitted a five-page response supported by affidavits.
Because the arguments on appeal do not address the merits of the judge's decision, we do not consider them. We do note, however, that the primary purpose of a petition for partition should not be to try title; the "bona fide suit between cotenants for partition must be the primary purpose of the [petition for partition]" (citation omitted). Schair v. Duquet, 38 Mass. App. Ct. 970, 971 (1995). It is not clear from the record why in the ten intervening years between the date Hallisey filed the petition for partition and the date he moved to amend it, when he intervened in actions to quiet title to the locus, he did not affirmatively establish by court order his interest in the locus.
There was no error in allowing the defendants' motion to file a supplemental appendix. The materials contained therein were necessary to a complete review of the arguments made. We disregard irrelevant submissions.
Judgment affirmed.
Orders denying motions for reconsideration affirmed.
By the Court (Green, C.J., Hanlon & Maldonado, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: April 23, 2019.