On June 9, 2015, the Massachusetts Appeals Court issued an unpublished 1:28 Decision upholding the Land Court’s entry of final judgment for P & A’s clients, the plaintiffs, Barbara Hysell and Linda Carlson, as well as awarding attorney’s fees based on the frivolous nature of the Defendant’s appeal. See Carlson v. Webb, 2015 Mass. App. Unpub. LEXIS 601 (Mass. App. Ct. 2015).
In the decision, the Appeals Court agreed with plaintiffs that all but one of the issues raised by the Defendant Webb, on appeal, had been waived, as they had not been raised before the Land Court. See Olsson v. White, 373 Mass. 517, 521 (1977); Century Fire & Marine Ins. Corp. v. Bank of New England-Bristol County, N.A., 405 Mass. 420, 421 n.2 (1989). The sole remaining issue, then, was whether a slight change in location for two parking spaces, as drawn on a final survey plan, was a material change from what the parties had agreed upon at mediation. The Appeals Court agreed with the Land Court that the slight change, which was precipitated at the Defendant’s request, was immaterial and, thus, was not in contravention of the settlement agreement
The 1:28 Decision finally resolved a long and contentious dispute between neighbors; one that spanned many years and involved use rights over a cul-de-sac (see prior blog post on Derelict Fee Statute-Basics, August, 2014) and regarding parking and use of their respective properties. The disputes appeared to be resolved after a formal mediation, but execution of the final settlement documents was withheld by Webb. P&A successfully moved to enforce the settlement agreement under Mass. R. Civ. P. 58 and 70, and obtained a final judgment, as well as attorney’s fees and costs for their clients. On appeal, the Appeals Court upheld the Land Court’s entry of final judgment. In addition, the Appeals Court found that “the defendant engaged in ‘an egregious pattern of dilatory conduct’ throughout the course of this litigation and erected numerous obstacles to an earlier resolution of the dispute without regard for the merits”, and thus, also awarded attorney’s fees for the costs of defending the appeal.
The appeal was heard without oral argument.