-: SJC-13297, Erik Tenczar that call forth SJC
Indian Pond Country Club (indistinct).
(paper rustling) (furniture banging)
-: Okay, Attorney Nowicki, whenever you're ready.
(paper rustling) (furniture banging)
(door banging)
(clearing throat)
-: May it please this honorable court and Chief Justice.
My name is John Flemming.
I represent the defendant-appellant,
Indian Pond Country Club, in this matter.
With me at the counsel's table is Attorney Leon Nowicki,
who's also with me on the brief.
This case is before the court on appeal
from a judgment rendered in the Superior Court,
which ruled that the developer
of a residential golf course community
did not have the right pursuant
to recorded declarations of covenants and restrictions--
-: Let me ask you a question.
Are you arguing that they have the right
to retrieve the balls in the undeveloped part of the land,
that's clear, right?
John: Right.
-: And are you arguing that they also have the right
to retrieve the balls in the developed part?
Or are you arguing that the balls have a right
to go where they went, into the house?
John: Just that the balls have a right to go in there.
-: Anywhere. -: We think the declaration is-
-: All right, so let's go to the declaration for a minute.
Can you tell me in the, I think it's Declaration 20,
I'm not sure, which one do you rely on.
Do you rely on the 1990s?
What were the years, '96 or the '98, for the Tenczar's lot?
John: For which?
-: The lot in question, the one where the balls are.
You've got two declarations, one that's amended.
Are we working with the amended or the original one?
-: We're working with the original one,
is the one that grants the easement in general terms.
-: And the original one, when you get to clause,
it's Clause 20 we're concerned about, right?
John: Correct.
-: Okay, so when we get to that clause,
there's another...
The first sentence has a comma after,
as shown on Indian Pond Estates for comma plan,
Other than those expressly subject to this declaration.
What does expressly subject to that declaration cover?
-: Well, in the earlier section of the declaration
that lists the specific lots that are covered
by the original declaration. Elspeth: So is in the lot,
480 is in that, right?
-: No.
Elspeth: No, it's not. -: It's not.
-: So it's not at all in there.
Not covered by the one that we're dealing with.
The amended one.
-: Oh, then when it's amended,
it's specifically referenced as being covered by that one.
-: All right, that's what I wanted to notice
by the amended.
-: Could you summarize that,
'cause it's not as clearly drafted as it could be.
John: That's what happens.
(Elspeth laughs) -: Yeah, well
we're trying to make sure
we understand exactly what the developer reserve.
And the last clause is confusing.
John: Section 20, are you saying?
-: Could you walk us through 20?
'Cause I think I agree with you
that there's the hard part of the case
is not the meaning that golfers
can't go into their improved areas.
That's dealing with a specific problem.
Golfers, they see a ball,
they wanna retrieve it and they go further
than they're supposed to.
And this set a dividing line.
We're struggling with the other parts of the declaration,
which don't seem to be presented with the jury,
but aren't as clear as they could be.
Could you just walk us through the exact language on that?
-: Oh, and I think the factual background
in the development to some extent is important
on that question. Elspeth: Well, yeah.
But we have to deal with the documents first.
-: Oh, in terms of interpreting an easement,
granted in general terms.
-: Could you just walk us through that clause
'cause it literally.
John: Okay, first, the declaration is--
-: Do it section 20 and then the first sentence or two
in section 16 that redoes the declaration about how you...
What's reserved for the golf balls.
-: Well, section 20 basically says,
that with respect to the lots that aren't covered
by what we've dealt with in one through 19,
which is like things related to what kinda houses
can be built, and whether you can have cloth lines
in the backyard and other things
relating to the common scheme of the development.
-: Let me be more specific for you.
I'm reading exactly from the language.
Developer expressly reserves and retains for itself
the right to create and operate and maintain a golf course.
And all portions of the land is shown on the plan.
And then we get into this other than those expressly
subjected to this declaration,
is that because at the time 4105
was the only thing expressly dealt with?
Or what does that mean?
-: There are 34 lots that are specifically referenced
in the declaration.
And with respect to all lots, other than those 34,
the developer is retaining the right
to construct and operate a golf course.
-: And those 34, because they're further away
from the golf course,
is that what they're about?
-: They're on one side of the...
The development is a big circle.
And when you do a development of this size with 134 lots,
you tend to do it in phases.
So the developer came in up the entrance of the country club
and went around halfway on one side.
And the lots that are referenced in there
are the lots that are on that one side.
-: And those lots.
So those lots are away from the course in a way
that they're not in play, is that what you're saying?
-: Some of them are.
-: Okay, so again, this lot is one of those
other than those expressly subjected
to the declaration at the time.
Then in the next declaration it's included.
Is that your view?
-: Correct, it's specifically defined
as being a golf course lot for purposes of the amendment.
-: So that golf course lot is covered by the reasonable
and efficient operation of the golf course
in a customary unusual manner.
-: That is our position, yes.
-: And the judge doesn't allow you to argue that,
nor does he allow the jury even to consider
that part of the declaration?
That's your view of what the error is, right?
-: Well it's certainly part of what the error at trial was.
We also contend that the interpretation,
which is before you want a de novo basis,
because the question of what is the meaning of an easement
is a question of law.
We believe that if you applied the correct legal standard,
which has existed in this Commonwealth
for over a hundred years.
In terms of how you analyze an easement
granted in general terms.
You have to look at all the attendance circumstances
surrounding the creation of the easement.
And the primary focus is to try to ascertain
what the intent of the developer
in this particular case was,
after getting approval for a subdivision,
getting a special permit for golf course
to be located in the interior,
specifically reserving in the recital
to the original declaration.
His intent to create a residential community
with a golf course located in the center of it.
If you look at all the circumstances,
he acquired a thousand acres of land
over more than a decade.
Got the subdivision approval,
got the special permit from the town.
Hired an architect to design the golf course,
determine that it was gonna cost him $4 million
to build the golf course.
And he records this document.
Elspeth: Right.
-: So is it his intent to give the residential unit owners
the right to come in and say,
"You can't operate the course the way it was designed?"
-: So are you saying that the right to operate the course
includes despite the express restrictive easement
that the right to operate the course
includes the balls going into their house?
John: Correct, our argument is it's axiomatic.
-: And looking at the cone,
you know those cones in the exhibits,
that if you turn it this way, it's gonna go here.
And if you shift the tee that way, it'll go there.
There's no adjustment that the country club
could have made for these owners, is that right?
-: We made adjustments.
I mean, what the whole idea with...
I mean a golf course can't control
the mishits of the golfers who are playing the course.
-: Right, but we still have
Massachusetts restrictive covenants.
And you said we have a hundred years worth of loss.
So why aren't our cases better than the Georgia case?
-: This isn't a restrictive covenant.
-: (Elspeth) Oh, it isn't?
-: Oh, no it is.
It's an easement. -: It's an easement.
Sorry it's an easement. -: It's not subject to one--
-: But it's an affirmative easement.
Would you agree with that? -: It is.
I mean, if you wanna talk about
restrictive covenants that might be subject
to the restrictive covenant statute.
Elspeth: Well, it's all the things they can't do.
-: It's the things that they can't do, exactly your honor.
-: So forgive me for mixing up the terms.
But is this an affirmative easement then?
-: It is. Elspeth: Okay.
-: It's an affirmative easement, just like...
I mean to me and my position has been throughout this trial
the Commercial Wharf East Condominium Association
versus Waterfront Parking Corp case.
Is the closest case that you can have to this.
In that particular case,
the developer retained the right to control
and collect fees, for the parking of vehicles--
-: Can I ask you?
'Cause I know the Commercial Wharf case.
And your time is limited.
Can I ask you why there wasn't a motion
for summary judgment here,
given that your argument on appeal
appears to be that as a matter of law,
looking at these two documents.
And one can determine that Lot 80 was subject
to this easement.
Why did this go to trial?
What were the issues of material fact
that needed to be resolved at trial?
-: Well, again, just, the interpretive rule,
which I think clearly applies in this case,
is that you look at these documents
in light of what they say and you try to determine
what the intent of the drafter of the document was,
when he drafted these by looking at the language
and considering the attendance circumstances
and the facts that were known to the client
at the time it was issued.
-: And were those attendant circumstances
disputed before trial?
Is that why there was no summary judgment?
I think it was my position that they could be disputed.
Wendlandt: Okay.
-: That's what I'm confused by.
Meaning that the golf course wasn't being operated.
Hole 15 wasn't being operated in a customary unusual way,
meaning it was too dangerous to put the house there.
I'm just...
'Cause again, I have the same question, Justice Wendlandt.
It seems to be a question of law.
Do you have the right to put golf balls
not just into the five yards in their yard,
but hit them further into the house?
I mean, it's a 275 yard shot, right?
To hit their house, that's a big hit.
But golfers hit it that far.
John: Correct.
-: And is that what isn't customary here?
I'm just trying to understand why was there a trial on this,
if your view is correct that the attendance circumstances
and the deed lang, which are clear?
-: Well, when the complaint was filed
and up until the day the trial started,
there were two claims that were being asserted.
One was for trespass,
which I think a motion for summary judgment probably
would've been appropriate for,
although it's a judgment call in my mind.
The second claim was for nuisance.
-: Isn't nuisance easier to disprove than trespass?
-: I think it's easier to disprove at trial,
but I'm not sure it's easier to disprove as a matter of law,
because it's the standard that gets applied,
I think is whether the reasonableness
of the use compared whether it affects
the ordinary sensibilities of the homeowner.
I think the way I read it,
it's potentially an issue of fact.
-: That means something to me, the way you read it.
Does that mean then you agree
that the language in section 20 or in 16
can be subject to an ambiguity issue
in terms of interpretation?
Is it ambiguous?
-: It's 20 ambiguous?
I think--
Elspeth: 20 ambiguous is 16 ambiguous?
-: I think there's a little bit of ambiguity
in that recourse to the surrounding circumstances,
the attendance circumstances.
When it was being adopted,
the course hadn't even been constructed yet in 1999
when the original declaration--
-: Right, but do you think that they intended
that this express language in section six.
Do you think that what they actually,
you say we wanna know what the developer had in mind.
Did they actually have in mind
that the balls are going to go so far
that they're going to hit people's homes?
-: I think that's what happens
when you buy a house adjacent to a golf course.
There's no magic elixir that you can put on golf balls
to stop them.
-: And this neighborhood,
it's a necklace of these stately houses
tightly bound around the golf course, right?
Was that in the original plan too.
I mean, wasn't like there was a lot of room
between the golf course and the houses.
They're right along these fairways, right?
-: They are immediately surround the fairways.
It's a golf... Scott: Like 50 of them.
Right? -: There's 50 of them.
-: Are 50 houses up and around the fairway here?
-: I think close to the fairway,
they may be closer to between 35 and 40.
But there are houses on this golf course
that the improved portion of the home
goes right up to the boundary of the golf course.
Which means, if this ruling is correct,
you can't have a hole where any balls go on that property
because it's all improved.
-: It seems more complicated than that.
Let's just say that you're absolutely right.
Subsection 20 of the original declaration applies.
And let's condense it down that what that says is,
the right to operate a golf course, okay?
John: Yes.
-: So you've got somebody who's behind the 15th hole.
Somebody's on the side of this 17th hole.
This is a dog leg left.
The house is where it is.
It's not like every few rounds
somebody hits something into their yard.
You're having on the improved area of the lot,
according to the light most favorable of the plaintiff,
she's fought this golf balls coming in
and hitting the house a little more often than periodically.
John: Once a month.
-: Isn't it possible?
Well, for the windows to break.
Isn't it possible that you could be right
that subsection 20 of the declaration applies
and unimproved is not a limitation.
And still is a factual matter
that there could be a trespass
and that's why there was no summary judgment?
-: Well, that's not my understanding of what easement law
is interpreted as meaning.
-: (indistinct) means, you can hit the house as often,
and there's no responsibility at all
as far as the placement of the tees or anything like that.
-: I think again,
if you look at the Georgia case that we cited,
which you can say is distinguishable
because there's more of a specific reference
to unintentional--
-: Right, they specifically included the language
about unintended ball hits or err balls or misses
between how frequent they do that.
-: But if you look at that case and get beyond that,
the second thing that was argued
in that case by the plaintiffs unsuccessfully
was that the mere volume of balls
that were hitting the house.
And in that case,
10 to 15 balls a day we're hitting the house.
We're going into the yard.
There had been multiple occasions.
The frequency of balls hitting the house
was substantially higher.
And this is over two and a half year period
that we're talking about.
They had dented the trucks.
And they said that the mere volume
exceeded the scope of the permissible easement.
And the court in Georgia,
and by the way, Georgia law and Massachusetts law
are not ridiculously different.
-: Council, can I?
So I know that you're over time.
And so with the chief's indulgence, I have a question
about any limitations that you see to the easement
in section 20 of the original declaration.
Because as I read it,
it's reserving an easement to operate a golf course
on Lot 80.
John: Correct. -: Right?
So all this discussion about what's the natural.
And understanding of how golf is played
is largely irrelevant under your literal reading
of section 20.
As an easement to operate a golf course on Lot 80, right?
'Cause if you can operate a golf course on Lot 80,
there are no limits really to the errant ball
flying over Lot 80, right?
-: No, we can't put a green on the house.
We can't put a tee on the house.
-: But yeah, that's my question I guess.
Is what are the limits
that one would read into section 20
if one can operate a golf course on Lot 80?
-: Well, the things that are a natural part
of the golf course, which would be for example,
okay, we need water to irrigate the golf course.
We wanna drain the roads into the pond,
irrigate the golf course.
We need a drainage easement across the lots
to get to the golf course.
-: Usual and customary include
literally putting the flag right next to their house.
I take it that would be pushing it a little, right?
-: I don't think we have the right
to change the operation of the golf course.
I think we just have the right to operate the golf course
the way it was built.
-: It means that they can operate it as a golf course
so they couldn't have 10 parties
at three o'clock in the morning
next to these people's houses, correct?
John: Correct.
-: It's a right to have golfers tee off
and do what golfers do.
-: Right.
And we don't have the right
to retrieve the golf balls either.
It's just the golfers who do.
They have the exclusive right to do that.
-: So before you wrap up,
because you are out of time
with the chief's indulgence please.
I just would like to ask you about the other issue.
And that is whether this should have gone to the jury?
And you're saying that it really is a question of law,
the interpretation of the easements.
-: Well, I believe the case law establishes that, that's--
-: All right, but that was not
when the judge gave us instructions,
there was no objection to this, correct?
John: There was. -: There was, where?
-: I filed a supplemental jury instruction
saying exactly what I wanted the judge to be told.
-: But after that you didn't object, isn't that true?
-: I didn't object.
I had to ask the judge to give some kind of an instruction.
In his initial instructions, he told the jury nothing.
So went to sidebar and I basically said,
"Can you please tell the jury--"
-: They say you didn't object.
You push all along for having a different interpretation.
You push all along but then at the last second,
you don't say, "I preserve my objection."
Right?
You fight this pretty steadily.
You file a motion for a directed verdict.
You argue, you ask to be able to do a bunch of things,
but you don't object to the last bit of this, right?
-: I think you could say that I gave up.
Scott: Right.
(Elspeth laughing)
Wendlandt: Can I ask you one more question?
-: Sure. -: So I know section 20
gives you the right to operate a golf course on Lot 80.
And because it's not one of the enumerated lots
in the declaration, right?
Yes, it's not. -: It's one of the...
Lots referenced is not being subject
to the original declaration. -: Right.
So it's not enumerated in the declaration.
But then in the amendment it becomes an enumerated lot.
It's identified.
And I'm wondering how the amendment
now having identified Lot 80
affects our interpretation of section 20
of the original declaration.
If you could follow that, does that?
You look puzzled?
-: I think you look at the language and the amendment
it says so that all the provisions
in the original declaration remain in force.
-: Right, and one of the original provisions
of the declaration is the section 20,
which is the right to operate a golf course on Lot 80.
But now Lot 80 is expressly subject
to the declaration as a golf course lot.
-: Well, I think the the clear intent
of the two documents is just to clarify,
once the golf course was actually constructed in 2001,
now we know what lots are actually adjacent
to the golf course.
-: So now know we do know that Lot 80
is subject to the declaration.
-: I think Lot 80 is subject to the declaration.
I think if you look at the rules
relating to general plant developments
or common scheme developments,
the fact that a lot of lots were excluded.
The original lot owners can enforce
all those restrictions in the declaration
of covenants and restrictions.
-: So that's a problem for you,
because if Lot 80 is subject to this declaration,
then paragraph 20 doesn't allow a golf course
to be operated on Lot 80.
-: I respectfully disagree with that interpretation
of section 20.
-: If you read it literally you weren't expressly subject
to it before.
So you are in the sort of zone of land that's
covered by the golf course.
Then when you're expressly added later,
that doesn't put you within 20,
it just means you're expressly included now.
Those can be read together, I think.
-: I think they can be read together too.
The amendment is just trying to be more specific
and trying to say things that there might be a fight over.
Can you have a pool in your backyard?
The amendment says no.
Can you have a play set in your backyard,
a swing set and whatever?
-: You thought it was obvious
that you can run a golf course
and hit golf balls out of bounce.
But you didn't quite say it.
-: Well I think the amicus brief
covered that for me, hopefully.
Wendlandt: Okay, thank you very much.
-: Thank you.
Wendlandt: Attorney Galvin.
-: Good morning, chief justice and associate justices.
May I please the court?
My name is attorney Robert Galvin.
With me is Attorney Riley,
and we represent Eric and Athena Tenczar.
Your honors, we believe that the motion
for directive verdict and judgment
was standing the verdict were correctly decided
'cause the covenants and restrictions
by their literal terms,
do not authorize trespass
permit the plaintiff's home
to be continuously damaged by errant golf balls.
Scott: Can I ask. -: Sure.
-: Are they allowed to operate a golf course
in the customary unusual way?
Is that your?
-: Not on the Tenczar's property, your honor?
-: Really, how is that possible?
Then I take it that applies to every property next to...
There are 50 homes surrounding this thing, right?
They're all built around the fairways,
it's a golfing community.
I don't understand how you can say
that they can run a golf course,
but they can't hit golf balls out of bounds.
They can only hit golf balls in...
I understand the golfers should not be going
into their house or up to their windows.
That's bad.
And that was what they expressly dealt with.
But isn't the whole purpose of this community
and these declarations to create a golf course
surrounded by these homes.
And if you buy a house there,
it's clear golf balls are not gonna stay on line.
They never do, they never will.
-: Your honor, I agree that my clients bought a home
next to a golf course.
I think that was plainly obvious.
But what isn't plainly obvious,
and maybe it's a little bit more obvious
from the photographs in the record,
this house was 200 feet from the fairway.
There was a tree buffer between the rear of my client's home
and the golf course.
-: Reinterpret the declaration.
Tell us how those declarations about the customary
and usual operation of golf course
don't apply to your clients.
Can you walk us through how--
Galvin: I can, your honor.
-: Yeah, go ahead.
-: I think when you have the original declaration
of covenants, there are 34 some odd lots
that are expressly subject
to these 20 enumerated restrictions.
The remainder property that wasn't subject
to those restrictions,
the developer has the right to build a golf course on,
operate it, maintain it.
I don't dispute that, that occurred at all.
Then what happened is four lots was sold off
to the golf course entity of the defendant
in this particular case.
And they build the golf course
and it's related facilities on those four lots.
Then they amended the--
-: Hold up, but the first one,
developer expressly reserves and retains for itself
the right to create, operate, and maintain a golf course
on all the portions of the land as shown in the plan
other than those expressly subject to this decoration.
So they are allowed at that time to operate a golf course
on the property that your clients are gonna buy, right?
Galvin: Yes, your honor, I agree with that.
-: That point they're covered clearly.
Galvin: Right, because the golf course
wasn't even designed.
They left a interior very large--
-: Oh, it's not because the golf course wasn't designed,
it's because paragraph 20 says so.
-: Yes, your--
-: So what happens in 2001, in your view.
-: In 2001? -: Yes.
-: The Covenant is amended, paragraph 16 is rewritten.
My client's lot is now a golf course lot.
It's not a lot that you can operate a golf course on
under the original declaration.
-: But the amendment says the golf course lots
which includes Lot 80.
Galvin: Correct.
-: Are also subject to the following.
Not only subject to the following,
but also subject to the following.
And so I'm wondering how as a legal interpretation
you are saying Lot 80 is no longer subject
to what it was subject to under the declaration,
which you agreed was the right to operate a golf course
on Lot 80 itself.
But that this somehow limits what can happen on Lot 80,
even though it has that word also.
-: Well, your honor,
the language of the last phrase of paragraph 20
when you read these documents together,
takes this golf course lot expressly out of that land
upon what you can operate, create
and maintain a golf course.
I think that's the only logical reading of those documents.
And I agree--
-: Even though, it seems like they're trying to do
the exact opposite of what you're saying,
which is to put tighter restrictions on those lots
because they're right in the line of fire
next to the fairway.
And that's why Justice Wen was pointing about
also makes it complete sense that the titles--
-: Well, we also have the language of subpart A
the developer has the right to reserve or grant easements
for the benefit of the owner of the golf course.
-: But that's the language of easements are written in.
Reserve the right, creates the right, it's not.
-: Well, the evidence in this case was there were no other
recorded covenants, your easements in this case.
Scott: And 20. Wendlandt: Yeah.
-: Excuse me. Scott: There's 20.
Wendlandt: Section 20.
Scott: Yeah, section 20.
-: But to read those two documents together logically,
and I think the way it's properly read
is once the amendment is on,
this lot is now a golf course lot.
It is not part of the golf course anymore.
-: It's now more restricted.
There are more restrictions in play.
Meaning you're building a house next to the golf course,
they're creating these additional restrictions
saying don't put a pool in there.
Don't put outdoor furniture out there
because basically you're gonna get hit by golf balls
or you're gonna make noise and disturb golfers.
But at the same time you're saying
the ordinary customary operation of a golf course
no longer applies.
-: Well, your honor, red literally your...
I mean, I'm taking it that way.
My clients no longer have a right to have a house there--
-: No, they have a right to a house.
They have a beautiful house next to a golf course.
Six months of the year,
there's no golf or whatever there is.
Then there are golfers and it's 270 yards away.
You have to hit it high over trees.
And how many balls are going in there now a year?
How many are hitting the house?
I understand they're gonna be balls rolling into their yard.
-: Your honor they did--
Scott: How many are hitting the house at this point?
-: Well, your honor, in the last three months
we've had 10 balls.
Scott: Hit the house.
-: And that is--
Scott: But is that in the record?
How many are in the record?
-: No, that is not in the record.
'Cause this is all on the last three months.
-: What about the record?
What is the record evidence show?
-: The record showed 651 golf balls.
-: How many are hitting a house of the 651?
-: I'm sorry, your honor.
I don't know the exact number.
-: Roughly. -: Roughly a hundred.
-: So in three years,
a hundred golf balls have hit the house?
-: Yes, your honor.
Okay, at any event, I think that--
-: And just roughly how many people?
Is the record contain how many people play this course?
Galvin: I think there is some evidence
of how many people play
coming from the golf course owner or the golf pro.
-: So we've got 30 balls a year hitting the house.
Is that what we've got, sorry?
-: Well, your honor,
at the beginning you recall there were no changes
made to the golf course,
but during the context of this litigation,
there were some changes that were made on the golf course,
presumptively to diminish the number of golf balls.
So I think that there were more at the beginning
and lesser at the end.
But still far more than an occasional errant shot.
-: Can I ask the other question?
So in your view,
we look at only this particular easement,
that golfers can collect their ball in the yard,
but they can't go into the proof section.
Galvin: Yes, your honor.
-: Doesn't that contemplate that their golf balls
going to be further in and the golfers can't get them?
'Cause literally it's not possible, right?
To prevent golf balls from going there, is there?
-: I don't think it's possible to contain
all errand golf balls to a particular area.
And some people could purposefully hit well
-: But how do they...
Well, golfers tend not like to hit the ball out of bounds.
-: Well, your honor, the evidence in this case showed
that the hole was designed to be played in a way
that the house and the yard area was
outside this safety cone.
Scott: Right.
-: But what the evidence also showed
was that when this golf course was constructed,
the golf course itself.
-: Well, was outside the safety cone
because there was a heavily wooded area, right?
It's-- -: No.
The safety cone included a heavily wooded area
when it was originally designed.
The evidence at trial from the plaintiff's expert
was based on an actual observation
of people playing the hole based on a website--
Frank: Are people trying to cut the dog leg.
-: They worry, your honor,
the hole is not as far as 275 yards to the house.
It's shorter than that.
To cut the corner, it's 210 yards.
I think that was the evidence
to get it over the sand trap at the corner.
So people, that's not a long distance.
-: They changed the alignment of the tee box
to stop that, right?
-: They did, and the website for the golf course
that described how you played the hole
encouraged people to hit it over the trap
to the wide expanse of the fairway
and the opposite side of the trap.
And when you do that,
the entire safety cone shifts to the left.
And my client's house is located in the safety cone.
Scott: Are you saying they're intentionally
telling golfers to aim it at the house?
-: I don't think they're intentionally doing it,
but they intentionally put something on the website
and said, "This is how to play the hole."
And when you do that,
you're not playing the hole the way it was designed
according to Mr. Pascuzzo.
You're doing it in a way that might be easier, but that--
-: Just a specific question.
To cut the corner of the way you're saying,
how far do you have to hit it in the air
to cut the hole? -: 210 yards
to carry it over a bunker at the corner
from the members' tee.
-: As originally done,
but then they moved it and became much further.
Galvin: No, your honor.
-: So as it's currently designed,
it's 210 yards to cut the corner?
-: From the original member's tee
which has been moved, your honor,
it was 210 yards to cut the corner.
And the entire golf hole
was just a little longer than 300 yards.
In the world that we live in today,
this is reachable by--
-: Can I ask a couple questions
about the emotional distress damages?
Galvin: Certainly, your honor.
-: And the damages in general.
So your clients look to shatterproof.
They look to whether they can buy stronger glass.
And that costs $20,000, right?
Something like that.
Or 40,000, I can't remember what that was.
-: My clients, when the windows were broken
consulted with a company that was local here
that did this type of repair work.
And the testimony at trial from that witness
was that the windows would still break.
They wouldn't shatter with small shards of glass
and spread it all over the interior of the home.
But they would still break.
-: How many windows have been broken in...
-: There's a graphic that shows
that there's eight bays of window
with broken windows.
Some have been broken more than once.
They were double-pane windows.
But eight total windows.
All of the siding.
The spindle or the ballade on the deck
and the deck barrier itself have a hole in it.
And the entire siding on that side of the house is falling.
Frank: But just again -: So then the--
Frank: I'm sorry, go ahead.
-: Let me finish on the emotional distress.
So there's $3.3 million
in emotional distress or something like that?
Galvin: 3.4, your honor.
-: 3.4, and there's the evidence on emotional distress
basically, it's not medical evidence,
it's descriptions from your clients
of how they feel in the house.
-: Yes, your honor.
There was no medical evidence.
I agree with that.
-: Yet any quantitative evidence
that we could tie the $3.4 million to?
-: I think that there was, your honor.
-: Well, what was it?
-: Well, your honor, my clients testified.
-: Right, but they didn't testify as to the amount.
-: There was no testimony as to one amount.
And I didn't argue an amount to the jury.
-: So where does the support for this number come from?
-: From the cumulative evidence,
the testimony of my clients
who explained what it was like to live in that house,
what it was like to experience a ball--
-: And what is the closest legal authority
that you might have to suggest that such testimony
is sufficient to justify the $3.4 million award?
-: Well, your honor, the instructions in this case
I think gave the jury--
-: No, I'm talking about case law.
What is your legal authority for the proposition
that a $3.4 million verdict for emotional distress
can be supported by the type of evidence
that you decided to put in?
-: Your honor, I don't have a specific case.
-: And isn't that a problem for you?
-: I don't think it is, your honor.
Wendlandt: Okay, why not? -: Because I think
we had a jury here that got a chance
and they were given the instructions to evaluate
the impact of this activity on them
for four and a half year period of time.
They gave firsthand stories of how it impacted them.
Mr. Tenczar--
-: So what is your legal authority
for the proposition that the jury can,
given this type of evidence that was put in,
come up with a number that they think is worthy
of the emotional distress?
-: Well, I think the jury acted strictly
in accordance with the instructions that they were given.
And the instructions asked them to use their experience,
their judgment, to avoid prejudice, to avoid considering--
-: Mr. Galvin,
are you saying that this is not a negligent infliction
of emotional distress, it's a trespass.
And are you saying that with a trespass
that you don't need a physical manifestation?
Galvin: Yes, your honor.
-: And is there a case that supports that?
-: I haven't found a trespass case
other than the FENTON v. QUABOAG case
that allows an award for mental anguish,
distress and anxiety.
That's the only trespass case that I found.
But I did lump together my intentional tort of trespass
with intentional infliction of emotional distress
because I figured that was the closest
akin intentional tort.
And I think the case law is very clear
in the case of that intentional tort,
that the physical manifestations
that are required resulting from objective symptomology,
I think is the negligent inflection standard don't apply.
And I think that's the right standard.
And frankly, I think that the--
-: When you argued, did you give them...
I haven't read the closing yet.
Galvin: Yep. -: Did you give them
any kind of measurement devices?
I'm just trying to understand how they came up with 3.4.
-: Did you? -: I asked them to consider
the impact of what had been going on.
-: You didn't match it to numbers for different--
-: I purposefully did not do that, your honor.
I felt that the jury who listened to the evidence
should decide, first of all,
whether they believed my clients, okay?
I think my clients were authentic.
I don't think they went out and--
-: Well, credibility calls
are something that juries don't necessarily do.
But I'm, and I think Justice Kafker
are more concerned about where the jury
was supposed to rest its decision
to award your client $3.4 million.
-: Well, I think--
-: And it's not something that one inherently knows from.
-: I agree with you, your honor.
I don't think it is something
that somebody inherently knows.
I think it's something that you have to experience.
You have to listen to.
You have to evaluate this sincerity, the authenticity,
the nature of the claims
that were testified to by my clients and the impacts.
And your honors for the four and a half years
that this problem occurred at their property.
There wasn't a moment during the day,
during the golf season when they knew a golf ball
would not come into their house through their windows,
spread glass across their floor or injure them.
-: And your position was that, that was a surprise
having chosen to live next to a golf course?
-: Yes, your honor.
Because of the factual distance between the golf course
and the improved area, which was significant.
It wasn't right up next to the fairway here.
There was 200 feet and a tree buffer.
And furthermore, your honor,
my client, Mr. Tenczar testified that he knew,
and by the way, there was an 18 foot retaining wall
with a chain link fence on top,
which actually gave the impression
that there was a distinction between
golf course and property.
And I can't imagine anyone buying a house
which they knew would be constantly destroyed
or become unlivable because of this type of a condition.
And if it was, it wasn't the De Sarno case.
That should have been clearly expressed
in the documents and it wasn't.
In the De Sarno case,
there was the additional exoneration or exculpatory clause
that was in the restrictions.
The homeowners could not sue the golf course owner.
Had those types of documents existed,
it's very likely that the result would've been different
and the Tenczar's.
-: Well, not withstanding accounting for interest,
accounting for inflation, rather.
In the Fenton case,
they only got $2,650 in emotional distress.
This is really different.
-: Regretfully, your honor, I'm not a mathematician.
So I thought about the present value of what that was today.
And honestly I don't know if you took the--
Frank: I don't think its $3.4 million.
-: It's not $3.4 million.
Okay, I can see that.
-: Wait, I take it you did a rough calculation.
What is the rough calculation of 2,500 present value?
-: Honestly, that's why I said
I'm not a mathematician, your honor.
I couldn't do the math on that.
But I do think that the jury listened to the evidence.
I think they based it because we also had Judge White
who listened to all the same evidence.
And he considered that.
And if he felt that it was greatly disproportionate
to the evidence, he could have overturned it.
And he didn't.
And he heard all the same arguments that you've heard.
Read all the same cases.
And he saw the witnesses.
Thank you, your honor. Wendlandt: Okay.