mslaw.edumslaw.edu/.../2013/11/119-foster-st-v.-rtw-realty-brie… · web view2013 wl 3856926...

2013 WL 3856926 (Mass.App.Ct.) Page

For Dockets See 2013-P-0268

Appeals Court Of Massachusetts.119 FOSTER STREET, LLC and Safety, Inc., Plain-

tiffs-Appellees,v.

RTW REALTY, LLC, Defendant-Appellant.No. 2013-P-0268.

July 18, 2013.

On Appeal from a Judgment of the Essex Superior CourtRe: Essex Superior Court C.A. No. 2009-01179

Brief for 119 Foster Street, LLC and Safety, Inc. Plaintiffs-Appellees

John R. Keilty, Esq., BBO # 264360, 40 Lowell Street, Peabody, Massachusetts 01960, Telephone: 978.531. 7900, e-mail: [email protected].

TABLE OF CONTENTS

Table of Authorities ... iii

Statement of the Issues ... 1

Statement of the Case ... 1

Statement of the Facts ... 2

Summary of the Argument ... 14

Argument ... 16

I. The Superior Court's finding that the defendant caused flooding at issue by paving the area in ques-tion was ample he supported by the evidence ... 16

A. The fair preponderance of the evidence produced at trial supported the Judge's findings that the defen-dant' s paving caused the flooding of the plaintiffs' property ... 16

B. The timeline of events did not conflict with the Judge's finding that the defendant caused the flooding of the plaintiffs property ... 27

II. The Superior Court did not misapply the “reason-able use” standard in the private nuisance context; and even if it did, the identical result reached by the Court was available under the plaintiffs' trespass cause of action, to which “reasonable use” was no de-fense ... 30

III. The Superior Court did not abuse its discretion in ordering the defendant to fix the nuisance in an exact manner: through the construction of a “French drain” ... 38

A. The Judge's conclusion that implementation of a “French drain” is an appropriate means to abate the nuisance, and ordering this specific solution, was supported by the evidence, was not arbitrary or capri-cious, and did not constitute an abuse of discretion ... 38

B. The defendant's argument that the Judge's order of specific equitable relief causes more harm to the de-fendant than is necessary to provide relief to the plaintiff, and is therefore an abuse of discretion, is unsupported by the evidence ... 46

Conclusion ... 50

Certification Under Mass.R.App.P. 16(K) ... 51

© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.


Certificate of Service ... 52

Addendum to Brief ... v

Memorandum of Decision

Judgment on Finding of the Court

Mass.R.Civ.P. 60(b)

Mass.R.App.P. 3(c) & 16(a)

TABLE OF AUTHORITIES

Judicial Decisions

Aguilar v. Hernandez-Mendez, 66 Mass.App.Ct. 367 (2006) : ... 25-26

Attorney General v. Dime Savings Bank, 413 Mass. 284 (1992): 3 ... 8

Bourne v. Haverhill Golf & Country Club, Inc., 58 Mass.App.Ct. 306(2003): ... 39

Commonwealth v. Smiley, 431 Mass. 477 (2000) : ... 25

DeSanctis v. Lynn Water and Sewer Commission, 423 Mass. 112 (1996) : ... 31-34, 36

Fenton v. Quaboag Country Club, Inc., 353 Mass. 534 (1968) : ... 38

In Re: Olga, 57 Mass.App.Ct. 821 (2003) : ... 22

Lynch v. Union Institution for Sav., 159 Mass. 306 (1893): ... 38

Metropoulos v. MacPherson, 241 Mass. 496 (1922) : ... 38

O'Connor v. Slachetka, 237 Mass. 228 (1921) ... 38

Robbins v. City of Worcester, Worcester Superior Court C.A. No 080745D (October 22, 2010) (Tucker, J.) (unpublished decision): ... 37

Robinson v. C,O.B., 71 Mass.App.Ct. 765 (2008) : ... 48

Siles v. Travenol Laboratories, Inc., 13 Mass.App.Ct. 354 (1982) : ... 48

S. Volpe & Co. v. Board of Appeals of Wareham, 4 Mass.App.Ct. 357 (1976): ... 22-23

Court Rules

Mass.R.App. P. 3(c) : ... 48

Mass.R.App. P. 16(a) : ... 48

Mass.R.Civ.P. 60(b) : ... 42, 43, 46, 48, 49

Other Authority

J. Nolan, Equitable Remedies, M.P.S. Vol. 31, Sec. 416: ... 38

*1 STATEMENT OF THE ISSUES

I. Was the Superior Court's finding that the defendant caused flooding at issue by paving the area in ques-tion supported by a fair preponderance of the evi-dence in the record?



II. Did the Superior Court misapply Massachusetts' “reasonable use” doctrine in the private nuisance con-text?

III. Did the Superior Court abuse its discretion or oth-erwise err in ordering that the defendant abate the nuisance in a specific and precise manner, to wit: by installing a “French drain”?

STATEMENT OF THE CASE

This appeal is from a judgment for the plaintiffs in an action to restrain a nuisance and a trespass to land, and for damages and other relief. This matter was tried to the Essex Superior Court (Richard E. Welch, J.), sitting *2 without a jury, on March 26, 27 and 28 of 2012. Judgment entered on April 10, 2012 and this appeal followed in timely fashion.[FN1]

FN1. The defendant filed a counterclaim, which was dismissed by the Court in its judgment. This counterclaim is not at issue in this appeal.

STATEMENT OF THE FACTS

Following are the material facts found by the Court below. The specific factual controversies that under-lay this appeal are discussed in the Argument, infra.

The Subject Property.

The plaintiffs' industrial property, located at 119 Fos-ter Street, Building 6, in Peabody[FN2], is a renovated industrial building dating back to the late 19th cen-tury. At one point, the plaintiffs' building and the sur-rounding structures were all part of one industrial complex owned by a single *3 owner. Over time, the various buildings were sold off to separate owners. In

2002, John Kunz purchased 119 Foster Street and renovated the building. At that time it was in a state of significant disrepair. The renovations performed by Kunz included repaving a formally paved area that immediately surrounded the building. This paved area extended from three sides of the building out to the property line. On the south side of the building, the side that is the focus of this dispute, Kunz paved slightly beyond the property line.[FN3]

FN2. In his Decision Judge Welch refer-ences the subject property simply as 119 Foster Street, but in fact that address con-tains several buildings, one of which was purchased by the plaintiffs.

FN3. Memorandum of Decision at 1-2, Ap-pendix 103-104.

Near the southwest corner of the building there exists a catch basin which is at a lower elevation than the pavement. This catch basin may or may not be on the property of 119 Foster Street. However, this catch basin is definitely in a right of way area which is shared by 119 Foster Street and its neighboring prop-erties, *4 including that of the defendant. This catch basin connects with a storm drain and various other catch basins that run through various properties in this old industrial area.[FN4]

FN4. Memorandum of Decision at 2, Ap-pendix 104.

Flooding Prior to the Defendant's Paving.

Kunz installed the paving in the latter part of 2002. Soon after Kunz moved his street cleaning company into the building, there was one instance of flooding on the first floor of the building resulting from rain-water coming down the grade and into the loading



doors on the south side of 119 Foster Street. This flooding was extensive. It extended thirty (30') to forty (40') feet into the building at the deepest point was two (2“) inches deep. Once this occurred, Kunz and his foreman (Richard Dube) decided to clean the catch basin on the southwest corner of the building. In addition to owning a street cleaning company, Kunz *5 specialized in cleaning municipal storm drains. Under the supervision of Richard Dube, Kunz had the southwest corner catch basin and part of the storm drain cleaned. Dube also cleaned the two downstream catch basins (part of the same storm drain) that surrounded 119 Foster Street. After this cleaning was performed on the three catch basins, “ninety (90%) to ninety-five (95%)” of the water problem was resolved at 119 Foster Street. In other words, during the Kunz ownership period (after the initial flooding) rain water infiltration was never a significant problem at 119 Foster Street. There admit-tedly did remain a “slight problem” with rainwater infiltration onto the first floor, but it was not a signifi-cant problem. It is clear that there was no extensive flooding caused by rainwater running downhill and into the 119 *6 Foster Street property once Kunz cleaned the storm drains.[FN5]


119 Foster Street sits at a lower elevation than the surrounding property to the south. Washington Street in Peabody, and a bakery which abuts Washington Street, sit above the property. When it rains, water flows down the hillside from Washington Street to-ward 119 Foster Street. The flow of rainwater comes approximately down the right-of-way from Washing-ton Street and then flows southwesterly towards Goldhwaithe Brook and the aforementioned catch basin. While Kunz owned the property from 2003 to 2004, the areas surrounding 119 Foster Street were not paved (other than the paving that he himself had

performed). Some areas, such as the land to the west-ern side of the building and the land to the eastern side of the building, had been previously paid, but now consisted of dirt, *7 potholes and broken up as-phalt. Other areas, including the property to the southerly side of the building, were mostly gravel.[FN6]

FN6. Memorandum of Decision at 3-4, Ap-pendix 105-106

Kunz testified that there existed a natural swale through this gravel area allowing rain water to run down to Goldhwaithe Brook. Due to the swale, only a small portion of rainwater off the site of 119 Foster Street would run into the catch basin at the southwest corner during the time Kunz owned the property. Once the storm drain was clean, the storm drain han-dle any water flow that came to it.[FN7]


The Court found that “it is rather clear why Mr. Kunz did not have any flooding problems from rainwater.” First, a natural swale directed most of the downhill rainwater towards the brook. Second, the gravel on the south side of the *8 property absorbs a fair amount of the rainwater. And third, the long estab-lished catch basin on the southwest corner of the building, once adequately clean, was capable of han-dling any of the water that did arrive at that point.[FN8]


The Plaintiffs Arrive on the Subject Property.

Joel Myerson is the President of both of the corporate plaintiffs, 119 Foster Street, LLC and Safety, Inc. In 2003, Myerson and his brother became interested in



purchasing 119 Foster Street from Mr. Kunz. They looked at the property on several occasions and never saw any flooding problems. The broker who eventu-ally arrange the sale of the property, Rebecca Kil-born, also never saw a rainwater entering the build-ing. A purchase and sale agreement was executed by and between Myerson and Kunz in 2003 after the property had been renovated.[FN9]


*9 The Defendant Paves Its Property and Creates a Nuisance and a Trespass.

The defendant, RTW Realty, LLC, owns the property on the south side of the plaintiffs' property. In July 2003, the (defendant[FN10]) became interested in paving portions of its property, including that which lay to the southerly side of the plaintiffs' building and which was covered with gravel. The defendant re-ceived a pavement proposal on June 6, 2003. Kunz heard about this proposal and discussed this with My-erson. This discussion occurred sometime in late 2003, while 119 Foster Street (Building 6) was under the purchase and sale agreement. Kunz advised My-erson to “fight” any paving of the area south of 119 Foster Street because he thought that it could lead to flooding of the *10 building. Myerson then pur-chased the property around April 20, 2004.[FN11]

FN10. The word is “plaintiff” in the Memo-randum of Decision; however, the context makes clear that this is an error.


The defendant's paving was performed by M & R Trucking and Paving, a company owned by Michael

Wood. Wood paved the southern area and also other portions of the defendant's property. Before this paving was performed, neither the defendant, nor Wood, consulted with any type of engineer or even considered the drainage problems that might be caused by the paving. In paving the area, Wood graded the entire gravel area on the south side of 119 Foster Street and inadvertently changed the swale that had previously direct the runoff toward the brook. In addition, Wood placed a binder and then a top coating of asphalt over the entire area previously covered by the gravel. To do this, he had to raise the grade of the area by three (3”) *11 inches in order to have a “feather in” with the asphalt paving previously done by Kunz.[FN12]


“The result of this paving was rather disastrous for Mr. Myerson and his companies.”[FN13] After this paving was performed, the plaintiffs' property at 119 Foster Street began to flood regularly from rainwater coming down the incline in a greater quantity and at a greater velocity. This flooding, which began in at least 2005, was quite significant. The entire first floor of the plaintiffs' building would be covered with rain water that exceeded a depth of two (2”) inches. This was much more extensive flooding than Kunz had ever experienced during his two-year ownership of the property -- all of which was during the period be-fore the defendant paved its adjoining property.[FN14]



*12 When confronted with this flooding, the plain-



tiffs arranged to have the southwest catch basin cleaned out, but this did not solve the problem. In-stead, the flooding continued and the catch basin could not handle the increased flow that resulted from the defendant's paving. The plaintiffs purchased pumps to place in the catch basin to try to supplement the draining capacity. This worked to a certain extent but whenever a pump would fail or the electricity was lost, significant flooding would occur within the plaintiffs' building.[FN15]


Although the defendant argued that this flooding was typically a result of the plaintiffs' not adequately cleaning out the catch basin, the Court did not find that this argument was persuasive. Per contra: “(f) rom the evidence is rather clear that the significant flooding *13 experienced by the plaintiffs was caused by the defendant's paving”:

The causes were threefold. First, by covering up all of the gravel that previously existed in the path of the rainwater coming down from Washington Street, the (defendant[FN16]) significantly reduced the capacity of the ground to (absorb[FN17]) the rainwater. Some of this paving was completely unnecessary. For exam-ple, a significant gravel area was paved over even though it was not within the right-of-way required for trucks and other vehicles to access the property. Had this area not been paved, but allowed to remain in a graveled state, many of the plaintiffs' flooding prob-lems would have been averted. Second, the paver's regrading of the property eliminated the natural swale that had previously existed. Although this swale is not definitively shown on any of the maps presented during trial (the maps are a very limited utility and, in all likelihood, based on in accurate or incomplete in-formation), I accept John Kunz' testimony regarding the swale. By eliminating the swale the rainwater was

not being directed to the brook but instead to the catch basin which was quickly overloaded. The third reason for the problem was that the defendant's paver eliminated the three inch elevation differential be-tween the plaintiffs property *14 and the defendants property. The paver did this by laying sufficient as-phalt to raise the level of the defendants property by three inches in order to “feather in” the defendant's asphalt with the plaintiffs' asphalt. If there had been no drainage issues, this would have been a perfectly reasonable method of pavement. But there were drainage issues and they were never considered by the defendant. This conduct constituted both negli-gence and an unreasonable use of the defendant's land.[FN18]

FN16. Again, the word in the decision is “plaintiff” but the context “dictates “defen-dant.”

FN17. The word in the decision is “observe” but this word obviously makes no sense; the context clearly indicates that Judge Welch meant “absorb.”


SUMMARY OF THE ARGUMENT

I. The Superior Court's finding that the defendant caused flooding at issue by paving the area in ques-tion was ample he supported by the evidence. (PP. 16-30)

A. The fair preponderance of the evidence produced at trial supported the Judge's findings that the defen-dant's paving caused the flooding of the plaintiffs' property. (PP. 16-26)



B. The timeline of events did not conflict with the Judge's finding that the defendant caused *15 the flooding of the plaintiffs property. (PP. 27-30)

II. The Superior Court did not misapply the “reason-able use” standard in the private nuisance context; and even if it did, the identical result reached by the Court was available under the plaintiffs' trespass cause of action, to which “reasonable use” was no de-fense. (PP. 30-38)

III. The Superior Court did not abuse its discretion in ordering the defendant to fix the nuisance in an exact manner: through the construction of a “French drain.” (PP. 38-50)

A. The Judge's conclusion that implementation of a “French drain” is an appropriate means to abate the nuisance, and ordering this specific solution, was supported by the evidence, was not arbitrary or capri-cious, and did not constitute an abuse of discretion. (PP. 38-45)

*16 B. The defendant's argument that the Judge's or-der of specific equitable relief causes more harm to the defendant than is necessary to provide relief to the plaintiff, and is therefore an abuse of discretion, is unsupported by the evidence. (PP. 46-50)

ARGUMENT

I. The Superior Court's finding that the defendant caused flooding at issue by paving the area in ques-

tion was amply supported by the evidence.

A. The evidence produced at trial supported Judge Welch's findings.

The defendant's argument to the contrary consists of two elements: (1) the evidence in the record does not

support the plaintiffs' contention that, prior to the de-fendant's paving, there was a three (3“) inch “lip“ caused by an elevation differential between the plain-tiffs' property and the defendant's property, which created a natural conduit of *17 rain water away from the defendant's building; and (2) that a preponderance of the evidence showed that the flooding was gener-ated by causes unrelated to the defendant's paving. Neither argument has any merit.

(1) The defendant alleges that “testimony from both sides”[FN19] shows that, prior to the defendant's paving, there was no three (3“) inch “lip“ caused by an eleva-tion differential between the plaintiffs property and the defendants property, which created a natural con-duit of rain water away from the defendant's building. In support of this allegation the defendant cites to the following pages of the Trial Transcript: 70-71, 82-88, 139, 360.[FN20] However, the cited testimony does not, for the most part, support the defendant's contention:

FN19. Brief of Defendant-Appellant at 6.


*18 Item: Pages 70-71[FN21] record a portion of de-fense counsel's cross-examination of Scott Cameron, the plaintiffs' engineering expert. Nowhere on those pages does engineer Cameron deny the existence of the three (3“) “lip,” despite counsel's best efforts in that direction.

FN21. March 26, 2012 Transcript at 70-71.

Item: Pages 82-88[FN22] record another portion of de-fense counsel's cross-examination of engineer Cameron. And once again, nowhere on those pages does engineer Cameron deny the existence of the three (3“) “lip“; indeed, at one point, he states “I've seen evidence that there was a lip there.”[FN23]




FN23. March 26, 2012 Transcript at 83.

Item: Page 139[FN24] records a portion of defense counsel's cross-examination of Joel Myerson. Here, Myerson testifies that “(t)here was a *19 three inch berm and there was a gravel and dirt absorbing wa-ter...”


Item: Page 360[FN25] records a portion of defense counsel's direct examination of Mike Wood, the indi-vidual who performed the paving work for the defen-dant. This is the only testimony that supports the de-fendant's argument, and standing by itself it hardly constitutes the “preponderance of the evidence,” es-pecially in light of Joel Myerson's additional testi-mony that there was a “lip.”[FN26] Moreover, on cross-examination, Wood was impeached by his prior de-position testimony, in which he admitted that there was a three (3”) inch “lip” and a resulting grade dif-ferential.[FN27]


FN26. March 28 2012 Transcript at 34.

FN27. Mach 28, 2012 Transcript at 53-56. Mike Wood further testified on cross that when he performed the paving work for the defendant, he changed the grade of the prop-erty, and added three inches of asphalt to the entire area that he paved. Id., at 57-60.

*20 The defendant also argues that there is a fatal in-consistency in Judge Welch's findings (1) that the pre-existing pavement on the plaintiffs' property was

feathered down to meet the gravel on the defendant's property (i.e., there was no “lip”), and (2) that the de-fendant's paving caused the flooding.[FN28] And it is unfortunately true that Judge Welch did write that when Kunz paved the property, “(t)his paving was approximately three inches thick and feathered down to the adjoining gravel and dirt lot which abutted 119 Foster Street to the south.”[FN29] Standing by itself, this finding might present a problem for the plaintiffs.

FN28. Brief for Defendant-Appellant at 6-7.


Fortunately, however, this finding does not stand by itself, and Judge Welch made the *21 following, ad-ditional findings that clearly support his ultimate con-clusions:(i)t is rather clear why Mr. Kunz did not have any flooding problems from rainwater.” First of all, a nat-ural swale directed most of the downhill rainwater to-wards the brook. Second, the gravel (noted in the en-gineering reports) on the south side of the property absorbed a fair amount of the rainwater. Third, the long established catch basin on the southwest corner of the building, once adequately cleaned, was capable of handling any of the water that did arrive on site.[FN30]


In paving the area, Mr. Wood graded the entire gravel area on the south side of 119 Foster Street and inad-vertently changed the swale that had previously di-rected runoff towards the brook.[FN31]




In addition, Mr. Wood placed a binder and then a top coating of asphalt over the entire area previously cov-ered by gravel. To do this, he had to raise the grade of the area by three inches in order to have it “feather in” (with) *22 the asphalt paving previ-ously done by Mr. Kunz.[FN32]

FN32. Memorandum of Decision at 6, Ap-pendix 108 (emphasis added). The empha-sized passage constitutes, among other things, an implicit recognition that prior to Mr. Wood's paving, there was, indeed, a three (3”) inch differential between the de-fendant's property and the plaintiff's prop-erty.

Also see: Memorandum of Decision at 7-8, Appendix 109-110, quoted hereinabove at 13-14.

It follows that Judge Welch's one “rogue” finding, singled out by the defendant, constitutes harmless er-ror and does not undermine the integrity of the Deci-sion. See: In Re: Olga, 57 Mass.App.Ct. 821, 824-832 (2003) (two “clearly erroneous” findings by the Trial Judge did not require reversal where the deci-sion was supported by other, correct findings); also see: S. Volpe & Co. v. Board of Appeals of Ware-ham, 4 Mass.App.Ct. 357, 358-359 (1976) (Court would not consider allegedly *23 erroneous findings where Trial Judge's decision was adequately sup-ported by other findings).

Finally, the defendant argues that Judge Welch's one “rogue” finding fatally undermines the causation opinion given by the plaintiffs' engineering expert, for the reason that the opinion is premised upon the pre-existence of the three (3”) inch “lip.”[FN33] But per contra: as we have just seen, Judge Welch made con-trary findings in his Memorandum of Decision at 6,

Appendix 108, and at 7-8, Appendix 109-110, which entirely negate the one, contrary finding singled out by the defendant.

FN33. Brief of Defendant-Appellant at 7-9.

(2) The defendant argues that a preponderance of the evidence showed that the flooding was generated by causes unrelated to the defendant's paving.[FN34] But this contention is meritless:


*24 Item: the defendant states that the property “(i)s at the bottom of a hill below an area that is infamous for extremely heavy flooding during rain storms.”[FN35] But the referenced pages, Appendix 105-106 (which are pages 3-4 of Judge Welch's Memorandum of Decision) in fact contain Judge Welch's finding that “during the Kunz ownership pe-riod (after the initial flooding) rainwater infiltration was never a significant problem at 119 Foster Street.”[FN36] And this finding is entirely consistent with Kunz' testimony.[FN37]



FN37. March 27, 2012 Transcript at 53-54, 57-58, 75.

Item: next, the defendant argues that the fact that Kunz installed a catch basin (among other work that he performed on the property) demonstrates that in fact he had a flooding property at 119 Foster Street, notwithstanding *25 his testimony to the contrary.



[FN38] But this argument completely overlooks the fact that, as Judge Welch found,[FN39] there was a flooding problem at the property before Kunz performed the remedial work (but not afterward).[FN40]



FN40. See especially the testimony of Richard Dube, Kunz' foreman, in the March 27, 2012 Transcript, at 102-110. This testi-mony -- by a defense witness! -dramatically describes the differences in the flooding pre- and post-installation and cleaning of the catch basins and other work on the property.

Item: the defendant points out that Mike Wood, the individual who performed the paving work for the defendant, testified that he observed flooding on the property “numerous times” during the period that Kunz owned it.[FN41] But it is clear that Judge Welch did not credit this testimony -- as was his privilege. Commonwealth v. Smiley, 431 Mass. 477, 481 (2000); *26Aguilar v. Hernandez- Mendez, 66 Mass.App.Ct. 367, 368 fns. 2 and 3 (2006).

FN41. Brief of Defendant-Appellant at 12

Item: finally, the defendant argues that “(e)vidence also supported the notion that the plaintiffs' drains and pipes were not properly maintained, which con-tributed to the flooding.”[FN42] But per contra: there was no evidence whatsoever that the plaintiffs' drains and pipes were not properly maintained, which contributed to the flooding. A close reading of the de-fendant's argument and the source material cited therein reveals that the argument consists of nothing more than speculation and surmise. It is a fact that no

witness -- lay or expert, plaintiffs' or defendant's tes-tified that the flooding was caused, in whole or in part, by improper functioning of the plaintiffs' drains.


*27 B. The timeline of events did not conflict with Judge Welch's findings.

The defendant argues that Judge Welch's finding that the paving, occurred in May of 2004 conflicts with his finding that the paving caused the flooding, which first manifested itself in 2005.[FN43] But per contra: the fact that some period of time[FN44] -- may have elapsed between the paving and the first manifestation of the flooding[FN45] in no way impeaches the Judge' s find-ing of causation. There was no evidence that during this particular period of time *28 sufficiently intense rainstorms occurred which ought to have caused ear-lier flooding.



FN45. Actually, Judge Welch found that the flooding “began in at least 2005”; Memoran-dum of Decision at 6, Appendix 108 (em-phasis added). Joel Myerson's testimony would have warranted a finding that in fact the paving did not occur until July of 2005. March 26, 2012 Transcript at 46-47, 117. While the paving invoice admitted into evi-dence (Appendix 59) is dated 5/21/04 and indicates that some work was performed on 5/18/04, we have no way of knowing whether or not this was the paving work at issue herein. See: March 26, 2012 Transcript at 118 (testimony of Joel Myerson). If the paving occurred in 2005, then the flooding



began to occur almost immediately there-after.

The defendant further argues that(t)he plaintiff spent less than one month on the prop-erty before pavement occurred. That is hardly enough time to know the flooding situation prior to paving. Mr. Myerson could not have known whether the paving caused a difference in water flow or not.[FN46]


But per contra: the evidence shows that Joel Myer-son performed extensive “due diligence” regarding the flooding issue before purchasing 119 Foster Street:

Item: he was already generally familiar with the flooding problems in downtown Peabody.[FN47]


Item: he first looked at the property some time in mid to late 2003.[FN48]


*29 Item: he made it a point to view the property “a few times during rain storms.”[FN49]


Item: he asked the building manager specifically about flooding.[FN50]


In addition, Rebecca Kilborn, the real estate broker who sold the property for Kunz to Myerson and his

brother, testified that there was no flooding of the property of which she was aware, and that she made no disclosure to Myerson regarding flooding.[FN51] Ms. Kilborn was quite familiar with the subject property by virtue of the fact that, in addition to brokering its sale, she performed bookkeeping and management services for Kunz “from 2002 to 2004 on that prop-erty,” and had occasion to visit the property repeat-edly.[FN52]

FN51. March 27, 2012 Transcript at 92-93, 96.

FN52. March 27, 2012 Transcript at 92-93, 94.

*30 Withal, the defendant's argument that the time-line conflicts with Judge Welch' s findings is merit-less.

II. The Superior Court did not misapply the “rea-sonable use” standard in the private nuisance con-text; and even if it did, the identical result reached

by the Court was available under the plaintiffs' trespass cause of action, to which “reasonable

use” was no defense.

Judge Welch wrote:The defendant's paving of its property certainly was not an “unreasonable” use of its property. The method by which the defendant paved this property, however, was unreasonable. Given the low elevation of these properties, any reasonable landowner should have given some consideration to the drainage effects of paving over large portions of gravel. Had the de-fendant maintained the existing swale and, perhaps, left some of the gravel for water absorption, the flooding, in all likelihood, never would have oc-curred. The defendant's actions increased the velocity and the direction of the surface water in an unreason-



able fashion.... Thus, the defendant's actions in the method of payment created a nuisance and consti-tuted a continuing trespass.[FN53]


*31 The defendant would have us believe that once Judge Welch found that paving, itself, was a reason-able use of the defendant's property, then any finding for the plaintiffs on their nuisance acton was fore-closed as a matter of law entirely regardless of how negligently or recklessly the paving was performed, how draconian the consequences to the plaintiffs' neighboring property, or the fact that other, better and safer methods of accomplishing the paving were available to the defendant that would not have in-flicted injury upon the plaintiffs. No judicial decision -- including those cited by the defendant -- stands for so draconian and unreasonable a proposition.

The parties and Judge Welch all agree that the princi-pal governing authority here is DeSanctis v. Lynn Water and Sewer Commission, 423 Mass. 112 (1996). DeSantis explained the “reasonable use” doc-trine as follows:*32 In Massachusetts, liability for a private nuisance caused by the flow of surface waters from a landowner's property to that of an adjoining landowner depends on whether the landowner is making a reasonable use of his land. See Tucker v. Badoian, 376 Mass. 907, 916-917 (1978) (Kaplan, J., concurring) (announcing intention to replace rigid and anarchic “common enemy” rule with reasonable use doctrine). See also von Henneberg v. Generazio, 403 Mass. 519, 522 (1988) (recognizing that since Tucker, supra, reasonable use doctrine is law of Massachusetts with regard to claims of private nui-sance resulting from the flow of surface water); Tri-angle Ctr., Inc. v. Department of Pub. Works, 386 Mass. 858, 863 (1982) (applying reasonable use doc-

trine to public landowners).Under the reasonable use doctrine, “each possessor is legally privileged to make a reasonable use of his land, even though the flow of surface waters is al-tered thereby and causes some harm to others, but in-curs liability when his harmful interference with the flow of surface waters is unreasonable.” Armstrong v. Francis Corp., 20 N.J. 320, 327 (1956) . Reasonable-ness is a question of fact for the jurors whose deci-sion is based on consideration of all the relevant circumstances including the amount of harm caused, the foreseeability of the harm which re-sults, the purpose or motive with which the posses-sor acted, and all other relevant matter. Tucker, supra at 917-918 n. 2. The jurors also must con-sider whether the utility of the possessor' use of his land outweighs the gravity of the harm which results from his *33 alteration of the flow of sur-face waters. Armstrong, supra at 330. See Tucker, supra.Contrary to the plaintiff's contention, a determination by the jurors that LWSC negligently caused water to flow onto the plaintiff's land and adversely change or otherwise damage the plaintiff's land is not sufficient to support liability for a private nuisance. The cases cited by the plaintiff do not support his contention that the negligent diversion of surface water is per se a private nuisance because each, unlike this case, in-volved a finding that the defendant landowner was making an unreasonable use of his land. See, e.g., von Henneberg v. Generazio, supra; Triangle Ctr., Inc. v. Department of Pub. Works, supra; Schleissner v. Provincetown, 27 Mass. App. Ct. 392 (1989) . A de-termination of unreasonable use is essential to the successful maintenance of a private nuisance claim for diversion of surface waters. Negligence, while relevant to the reasonableness of LWSC use of its land, is not determinative of the existence of a private nuisance. See Butler v. Bruno, 115 R. 264, 273 (1975) (“The New Hampshire rule of reasonable use does not rest on negligence, nor does it focus solely



on the character of the property owner action. In-stead, it focuses on the results of the action, the consequent interference with another use and en-joyment of his land - much like the nuisance branch of tort law”). “Under the Tucker standard, the fact finder must view the landowners activity on his land with an eye toward the effect of that activity on the flow of surface waters. von en-neberg, supra at 523. If a landowner fails to control the flow of surface waters but on a consideration of *34 all relevant factors his actions are reasonable, an action for private nuisance will not lie. “Regardless of the category into which the defendant's actions fall [intentional and unreasonable or negligent, reckless, or abnormally dangerous], the reasonable use rule ex-plicitly, as in the case of intentional acts, or implic-itly, as in the case of negligent acts, requires a finding that the conduct of the defendant was unreasonable. This is the essential inquiry in any nuisance action.” Pendergrast v. Aiken, 293 N.C. 201, 217 (1977) .

(Emphasis added.)

Thus, in determining the question of whether or not the defendant's paving was a “reasonable use” of its property, the adverse consequences of the paving to the adjoining property of the plaintiffs is a key ele-ment. While paving, per se, may not be unreasonable, paving which causes disproportionate harm to the plaintiffs' property is unreasonable.

Moreover, negligence on the part of the defendant -- while not solely determinative -is also relevant to a determination of *35 unreasonableness. Where the defendant at bar, despite having reason to know that the paving of its own property threatened to inundate the plaintiffs' neighboring property with substantial water runoff, nonetheless went ahead and paved its property without having first prepared a plan, and/or taken other precautions, to safeguard against such runoff, the defendant was negligent.

Thus, at bar, we have both: (1) the defendant's negli-gent conduct, and (2) resulting disproportionate harm to the plaintiffs; these factors preclude a finding that the defendant's paving was a “reasonable use” of its property; hence, the defendant is liable to the plain-tiffs in both trespass and nuisance, and Judge Welch correctly so ruled.

Moreover, even if, purely arguendo, we were tocon-cede that Judge Welch did misapply the *36 “reason-able use” doctrine in the private negligence context, the identical result reached by the Court was avail-able under the plaintiffs' trespass cause of action, to which “reasonable use” was no defense.

DeSanctis v. Lynn Water and Sewer Commission, 423 Mass. 112, 118 (1996), noted that:The jurors' failure to find unreasonable use while precluding recovery under a private nuisance the-ory does not preclude the plaintiff's recovery un-der an independent cause of action for negligent trespass. See Tarzia v. Hingham, 35 Mass. App. Ct. 506, 508-510 (1993) (distinguishing negligence and private nuisance). A plaintiff may recover under the theory of negligent trespass if the jurors determine that the defendant was negligent and that the defen-dant's negligent entry onto the plaintiff's land caused the plaintiff harm. See Restatement Second of Torts § 165 (1965); Cannon v. Sears, Roebuck & Co., 374 Mass. 739, 742 (1978) (“A cause of action based on negligence requires that both negligence and harm be shown, with a causal connection between these two elements”). Absent comparative negligence on the part of the plaintiff, he would be entitled, given the jurors' findings of negligence and causation, to recov-ery under the theory of negligent trespass.

*37 (Emphasis added.)



Accord: Robbins v. City of Worcester, Worcester Su-perior Court C.A. No 080745D (October 22, 2010) (Tucker, J.) (unpublished decision):Although there is no trespass liability for uninten-tional, non-negligent acts, see Edgarton v. H.P. Welch, 321 Mass. 603, 612 (1947), “(a) plaintiff may recover under the theory of negligent tres-pass if the jurors determine that the defendant was negligent and that the defendant's negligent entry onto the plaintiff's land caused the plaintiff harm.” DeSanctis v. Lynn Water & Sewer Comm‘n, 423 Mass. 112, 118 (1996) , citing Restate-ment (Second) of Torts § 165 (1965). Accordingly, the Robbinses may proceed under the negligence trespass theory.

(Emphasis added.)

Thus, even if we were to concede that the method by which the defendant paved its property constituted a “reasonable use” precluding a nuisance judgment, if the defendant did so in a negligent manner that proxi-mately caused the discharge of water onto the plain-tiffs' land, then the defendant would be liable to the *38 plaintiffs for negligent trespass, and the same eq-uitable relief would have been appropriate.[FN54]

FN54. As a matter of black-letter law, equity will restrain a trespass. Attorney General v. Dime Savings Bank, 413 Mass. 284, 289-290 (1992); Fenton v. Quaboag Country Club, Inc., 353 Mass. 534, 538 (1968) . A plaintiff is entitled to protect his or her right to possession even if a trespass has caused him or her no harm. Metropoulos v. MacPherson, 241 Mass. 496, 503-04 (1922).

If the defendant's act constitutes a continu-ing trespass, the plaintiff is entitled to equi-table relief as well as to money damages.

O'Connor v. Slachetka, 237 Mass. 228, 230 (1921). Neither the fact of minimal damage to the plaintiff, nor the innocence and good faith of the defendant may be a defense to injunctive relief for its removal. Lynch v. Union Institution for Sav., 159 Mass. 306, 308-309 (1893). The availability of money damages does not thereby deprive the plain-tiff of the right to injunctive relief if dam-ages are not an adequate form of redress or if an injunction is the only practical option in avoiding a multiplicity of action. See J. Nolan, Equitable Remedies, M.P.S. Vol. 31, Sec. 416.

III. The Superior Court did not abuse its discre-tion in ordering the defendant to fix the nuisance in an exact manner: through the construction of a

“French drain.”

A. Judge Welch's injunction was supported by the ev-idence, was not arbitrary or capricious, and did not

constitute an abuse of discretion.

*39 It is too-well established for argument that “(t)he scope of equitable relief is left to the discretion of the trial judge ... A court may ‘mould each decree to the necessities of the particular case ....’ Bourne v. Haverhill Golf & Country Club, Inc., 58 Mass.Ap-p.Ct. 306, 323-324(2003). At bar, Judge Welch found that:The plaintiff is also entitled to considerable equitable relief. The defendant is ordered to correct this nui-sance. The plaintiff shall be required to hire a regis-tered professional engineer to come up with a plan whereby a significant portion of the gravel within the path flow of the water (approximately near a large tree that is shown on the maps on the south side of the plaintiff's property) would be exposed and used to drain or to absorb a fair amount of the rainwater. That gravel area would be connected to a swell and a



“french drain” arrangement that would lead the vast majority of the rainwater coming from Washington Street in a swale to the brook. This would restore the situation that existed before the defendant's paving and yet permit the defendant to use his industrial property in an effective fashion. In other words, the right of way would still be pay (albeit with a packed gravel French drain running through it). This really seems the most reasonable solution to the problem.[FN55]

FN55. Memorandum of Decision at 10-11; Appendix 112-113.

*40 The Court's Judgment embodied these findings.[FN56] The defendant contends that Judge Welch abused his (very substantial) discretion by fashioning this “French drain” remedy for the reason that there was scant evidentiary support in the trial record.

FN56. Judgment on Finding of the Court at Appendix 114.

In truth, there was little evidentiary support in the trial record for any remedy. The case focused almost exclusively on causation and damages. But “little evi-dence” does not equate to “no evidence”:

Item: Scott Cameron, the plaintiffs' engineering ex-pert, opined, in response to questioning by Judge Welch, that the proposed solution “conceivably may work,” but would require an engineering study to as-certain that.[FN57]

FN57. March 26, 2012 Trial Transcript at 86.

*41 Item: John Kunz, who owned the subject prop-erty prior to conveying it to the plaintiffs, who testi-fied to his familiarity with the extensive drainage sys-

tem on the property,[FN58] and who prior to his retire-ment had owned and operated a business which spe-cialized in drain and catch basin cleaning and clear-ing for municipalities,[FN59] opined that Judge Welch's proposed “French drain” - cum - swale solution, with proper engineering, would work.[FN60]

FN58. March 27, 2012 Trial Transcript at 40-41, 58.

FN59. March 27, 2012 Trial Transcript at 36-37.

FN60. March 27, 2012 Trial Transcript at 60-62.

Item: No witness testified for the defendant that the proposed solution would not work.

Hence, Judge Welch's Order, requiring the defendant to hire an engineer to develop a “French drain” - cum - swale solution, and then to implement that solution, was entirely *42 consistent with, and supported by, the evidence adduced at trial.

In addition, the plaintiffs note that any insufficiency in the evidentiary support at trial for Judge Welch's injunction was (ironically) remedied by the defen-dant, itself, when the defendant filed a Rule 60(b) Motion for Relief from Judgment. That motion in-vited Judge Welch to amend his Judgment by substi-tuting for the “French drain” an alternate solution proposed by the defendant's trial expert.[FN61] The plaintiffs then submitted their Opposition to the de-fendant's motion, and this was supported by a letter written by the plaintiffs' engineering expert, signed under the pains and penalties of perjury, criticizing at length the *43 defendant's proposal and supporting Judge Welch's solution.[FN62] Armed with this addi-tional evidence, Judge Welch denied the motion.



FN61. The defendant's Rule 60(b) Motion appears at A. 117, and its supporting Memo-randum appears at A. 118. Annexed to the memorandum was a letter written by the de-fendant's engineering expert, criticizing Judge Welch's solution and proposing an al-ternative; this letter appears at Appendix 124.

FN62. The plaintiffs' Memorandum in Op-position to the Defendant's Rule 60(b) Mo-tion appears at Appendix 128, and the sup-porting letter/affidavit appears at Appendix 134. Excerpts therefrom include the follow-ing:

1. The defendant's interpretation of the judgment does not include a “swale” which is referenced at least twice in the judgment .... Rather, they have simply illus-trated a “French drain” and gravel area that does not appear to take into consideration any regrading or redirection of stormwater runoff away from the building towards the brook. In our interpretation of the judgment, the solution should include regrading the paved area in a manner that recreates the “swale”... that existed previously in conjunc-tion with promoting stormwater infiltration through the use of gravel areas and French drains. One option would be to grade a swale to direct stormwater runoff to-wards a “French drain” located along the edge of the traveled way to avoid impact-ing traffic within the way. The swale, more importantly than the French drain, is critical to ensuring that stormwater is redirected away from your building and towards the brook. According to the spot elevations pro-vided in the Eastern Land Survey Plan, there

should be adequate slope between the build-ing and the brook to achieve this. The gravel area and French drain, if designed and constructed properly, should help mitigate the peak stormwater flows and velocities through infiltration into the ground. Lastly, the

(Note continues on next page.)

1. infiltration method does not have to sim-ply be exposed “gravel”. If the defendant is concerned about constructability and main-tenance of an open french drain and gravel area, there are other equivalent solutions such as pervious pavement, grass swales and permeable pavers among others that could be implemented to stabilize the surface over the French drain and gravel area.

2. The limit of “berm” as illustrated on Fig-ure “B” by W&S does not extend all the way to the watershed divide which is illus-trated as a thick, dashed line on the figure. As a result, it is possible that the berm will only redirect stormwater within the sub-catchment to the building and not redirect it towards Goldthwaite Brook as implied. In other words, unless the berm is extended to the edge (divide line) of the watershed, it will only serve to redirect stormwater to the corner of the building where it will puddle (pond), top over the berm and continue to flood the building. Moving it to this extent would place it within the trav-elled way which would impact traffic.

3. The berm concept does not take into consideration the loss of stormwater infil-tration into the ground resulting from



paving over gravel/dirt surfaces. There-fore, there is no reduction in the peak stormwater flows or velocities from the paved portion of the site. It is not clear if a 3” to 6” is sufficient to mitigate peak stormwater flows and velocities without im-peding vehicular access to your building.

4. We are concerned about the effective-ness and durability of a berm in winter conditions. Factors that could overwhelm or deteriorate the berm include plows, frost heaving, snow and ice accumulation and heavy winter and spring

5. precipitation and snow melt. A regraded pavement surface in a swale configuration with a smooth surface (no abrupt 6” hump), while requiring more effort to construct, would be a much more viable solution that would minimize or eliminate most of the above concerns.

6. While it appears that both sides are in agreement that an application to the Con-servation Commission under the Wet-lands Protection Act and local Wetlands Regulations will be necessary, we don't agree with the W&S suggestion that a berm would be easier to permit through the Conservation Commission than a “French drain”. Quite simply, there is no way to predict what the Commission is go-ing to require for stormwater mitigation within the riverfront area to the brook be-cause of the subjectivity that is involved with reviewing these applications .... One could easily make a case that the berm con-cept does not result in “an improvement to the riverfront area” because it is not reduc-ing impervious (paved) surfaces and there-

fore is less desirable than a “French drain” which would promote infiltration and reduce impervious surface area. Therefore, in our opinion, any discussion about this matter is speculative at best and should not weigh into deciding one solution over another.

It is our opinion that an engineered solu-tion could be designed that satisfies the parameters of the judgment to construct a French drain and gravel area along with a swale. The swale in particular is a key component in reconciling the flooding problems at your property as this is the most efficient and low maintenance method of recreating the flow path condi-tions that existed prior to paving activi-ties.

(Emphasis added.)

*46 B. The defendant's argument that Judge Welch's order of specific equitable relief causes more harm to

the defendant than is necessary to provide relief to the plaintiff, and is therefore an abuse of discretion, is

unsupported by the evidence.

Preliminary Objection: The plaintiffs object to this argument upon the ground that it is in essence, albeit not in name, an appeal from the Superior Court's de-nial of the defendant's Rule 60(b) Motion for Relief from Judgment; yet, nowhere, either in its Notice of Appeal or in its Brief, does the defendant list the Court's denial of the Rule 60(b) Motion as an issue on appeal.

The defendant argues that the specific equitable relief prescribed by Judge Welch “causes more harm to the Defendant than is necessary to provide relief to the Plaintiff.”[FN63] But the defendant is then compelled to



admit that “(t)he trial record contains no evidence as to the *47 extent of the hardship to the Defendant or benefit to the Plaintiff”[FN64]



The entire basis for the defendant's argument turns out to be a letter written by Richard Williams, the de-fendant's expert civil engineer[FN65], purporting to of-fer an expert opinion on the feasibility of Judge Welch's proposed “French drain” solution.[FN66] But this letter was not a trial exhibit, nor was the opin-ion expressed therein part of engineer Williams' trial testimony. Rather, this letter was written in support of the defendant's Rule 60(b) Motion.

FN65. See: March 27, 2012 Trial Transcript at 111.

FN66. Brief of Defendant-Appellant at 28-29. The letter appears at Appendix 124.

The defendant's Notice of Appeal states, in material part, that the defendant is appealing “from all eviden-tiary, legal and other rulings and orders made prior to, during and after both *48 trial and the final judg-ment in this action.” Notice of Appeal at A. 115. This is not a sufficient designation under Mass.R.App.P. 3(c); see: Siles v. Travenol Laboratories, Inc., 13 Mass.App.Ct. 354, 354 fn. 1 (1982) :This order was not listed by the plaintiff-appellant as an issue on the notice of appeal. Accordingly, the va-lidity of that ruling is not properly before this court and will not be considered on appeal.

Accord: Robinson v. C.O.B., 71 Mass.App.Ct. 765, 771 (2008).

Nor does the defendant's Rule 60(b) Motion appear in its statement of “Issues Presented” on p. v of its Ap-pellate Brief, pursuant to Mass.R.App.P. 16(a) (2), or in its prayer for relief on p. 31 of its Brief, pursuant to Mass.R.App.P. 16(a) (5).

Therefore, the issue of the propriety of the Superior Court's dismissal of the defendant's *49 Rule 60(b) Motion is not properly before this Court for consider-ation, and the Williams letter must be given no con-sideration by this Court.

In the absence of the Williams letter, there is -- as the defendant concedes -- no evidence in support of the defendant's argument. Indeed, a glance at the Williams letter, itself, quickly reveals that it offers no information which supports the defendant's con-tention that the equitable relief awarded by Judge Welch “causes more harm to the Defendant than is necessary to provide relief to the Plaintiff.” It simply disagrees with the relief awarded.

Moreover, if this Court deigns to consider the Williams letter in support of the defendant's argu-ment, then the Court must equally consider the letter dated June 12, 2012, written by Scott P. Cameron, the plaintiffs' expert engineer,[FN67] *50 submitted in sup-port of the plaintiffs' Opposition to the defendant's Rule 60(b) Motion. This letter, at great length, sup-ported Judge Welch's proposed solution and affords an ample evidentiary basis therefor.[FN68]

FN67. See: March 26, 2012 Trial Transcript at 49.

FN68. The Cameron letter appears at Ap-pendix 134.

Withal, the defendant's argument that Judge Welch's order of specific equitable relief constitutes an abuse



of discretion is unsupported by the evidence.

CONCLUSION

WHEREFORE, 119 Foster Street, LLC and Safety, Inc., the plaintiff-appellees at bar, pray that this Hon-orable Court will affirm the Ruling of the Superior Court, deny and dismiss the defendant-appellant's ap-peal, and award the appellees their costs under Mass.R.App.P. 26(a), plus such other and further re-lief as may be appropriate.

119 FOSTER STREET, LLC and Safety, Inc., Plain-tiffs-Appellees, v. RTW REALTY, LLC, Defendant-Appellant.2013 WL 3856926 (Mass.App.Ct. ) (Appellate Brief )

END OF DOCUMENT


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