WEBVTT

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<v ->SJC-13297, Erik Tenczar that call forth SJC</v>

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Indian Pond Country Club (indistinct).

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(paper rustling)
(furniture banging)

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<v ->Okay, Attorney Nowicki, whenever you're ready.</v>

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(paper rustling)
(furniture banging)

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(door banging)

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(clearing throat)

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<v ->May it please this honorable court and Chief Justice.</v>

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My name is John Flemming.

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I represent the defendant-appellant,

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Indian Pond Country Club, in this matter.

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With me at the counsel's table is Attorney Leon Nowicki,

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who's also with me on the brief.

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This case is before the court on appeal

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from a judgment rendered in the Superior Court,

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which ruled that the developer

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of a residential golf course community

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did not have the right pursuant

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to recorded declarations of covenants and restrictions--

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<v ->Let me ask you a question.</v>

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Are you arguing that they have the right

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to retrieve the balls in the undeveloped part of the land,

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that's clear, right?

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<v John>Right.</v>

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<v ->And are you arguing that they also have the right</v>

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to retrieve the balls in the developed part?

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Or are you arguing that the balls have a right

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to go where they went, into the house?

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<v John>Just that the balls have a right to go in there.</v>

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<v ->Anywhere.</v>
<v ->We think the declaration is-</v>

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<v ->All right, so let's go to the declaration for a minute.</v>

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Can you tell me in the, I think it's Declaration 20,

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I'm not sure, which one do you rely on.

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Do you rely on the 1990s?

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What were the years, '96 or the '98, for the Tenczar's lot?

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<v John>For which?</v>

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<v ->The lot in question, the one where the balls are.</v>

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You've got two declarations, one that's amended.

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Are we working with the amended or the original one?

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<v ->We're working with the original one,</v>

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is the one that grants the easement in general terms.

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<v ->And the original one, when you get to clause,</v>

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it's Clause 20 we're concerned about, right?

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<v John>Correct.</v>

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<v ->Okay, so when we get to that clause,</v>

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there's another...

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The first sentence has a comma after,

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as shown on Indian Pond Estates for comma plan,

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Other than those expressly subject to this declaration.

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What does expressly subject to that declaration cover?

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<v ->Well, in the earlier section of the declaration</v>

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that lists the specific lots that are covered

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by the original declaration.
<v Elspeth>So is in the lot,</v>

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480 is in that, right?

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<v ->No.</v>

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<v Elspeth>No, it's not.</v>
<v ->It's not.</v>

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<v ->So it's not at all in there.</v>

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Not covered by the one that we're dealing with.

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The amended one.

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<v ->Oh, then when it's amended,</v>

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it's specifically referenced as being covered by that one.

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<v ->All right, that's what I wanted to notice</v>

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by the amended.

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<v ->Could you summarize that,</v>

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'cause it's not as clearly drafted as it could be.

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<v John>That's what happens.</v>

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(Elspeth laughs)
<v ->Yeah, well</v>

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we're trying to make sure

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we understand exactly what the developer reserve.

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And the last clause is confusing.

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<v John>Section 20, are you saying?</v>

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<v ->Could you walk us through 20?</v>

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'Cause I think I agree with you

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that there's the hard part of the case

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is not the meaning that golfers

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can't go into their improved areas.

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That's dealing with a specific problem.

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Golfers, they see a ball,

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they wanna retrieve it and they go further

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than they're supposed to.

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And this set a dividing line.

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We're struggling with the other parts of the declaration,

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which don't seem to be presented with the jury,

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but aren't as clear as they could be.

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Could you just walk us through the exact language on that?

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<v ->Oh, and I think the factual background</v>

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in the development to some extent is important

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on that question.
<v Elspeth>Well, yeah.</v>

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But we have to deal with the documents first.

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<v ->Oh, in terms of interpreting an easement,</v>

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granted in general terms.

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<v ->Could you just walk us through that clause</v>

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'cause it literally.

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<v John>Okay, first, the declaration is--</v>

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<v ->Do it section 20 and then the first sentence or two</v>

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in section 16 that redoes the declaration about how you...

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What's reserved for the golf balls.

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<v ->Well, section 20 basically says,</v>

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that with respect to the lots that aren't covered

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by what we've dealt with in one through 19,

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which is like things related to what kinda houses

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can be built, and whether you can have cloth lines

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in the backyard and other things

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relating to the common scheme of the development.

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<v ->Let me be more specific for you.</v>

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I'm reading exactly from the language.

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Developer expressly reserves and retains for itself

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the right to create and operate and maintain a golf course.

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And all portions of the land is shown on the plan.

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And then we get into this other than those expressly

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subjected to this declaration,

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is that because at the time 4105

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was the only thing expressly dealt with?

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Or what does that mean?

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<v ->There are 34 lots that are specifically referenced</v>

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in the declaration.

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And with respect to all lots, other than those 34,

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the developer is retaining the right

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to construct and operate a golf course.

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<v ->And those 34, because they're further away</v>

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from the golf course,

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is that what they're about?

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<v ->They're on one side of the...</v>

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The development is a big circle.

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And when you do a development of this size with 134 lots,

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you tend to do it in phases.

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So the developer came in up the entrance of the country club

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and went around halfway on one side.

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And the lots that are referenced in there

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are the lots that are on that one side.

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<v ->And those lots.</v>

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So those lots are away from the course in a way

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that they're not in play, is that what you're saying?

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<v ->Some of them are.</v>

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<v ->Okay, so again, this lot is one of those</v>

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other than those expressly subjected

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to the declaration at the time.

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Then in the next declaration it's included.

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Is that your view?

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<v ->Correct, it's specifically defined</v>

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as being a golf course lot for purposes of the amendment.

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<v ->So that golf course lot is covered by the reasonable</v>

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and efficient operation of the golf course

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in a customary unusual manner.

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<v ->That is our position, yes.</v>

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<v ->And the judge doesn't allow you to argue that,</v>

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nor does he allow the jury even to consider

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that part of the declaration?

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That's your view of what the error is, right?

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<v ->Well it's certainly part of what the error at trial was.</v>

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We also contend that the interpretation,

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which is before you want a de novo basis,

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because the question of what is the meaning of an easement

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is a question of law.

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We believe that if you applied the correct legal standard,

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which has existed in this Commonwealth

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for over a hundred years.

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In terms of how you analyze an easement

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granted in general terms.

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You have to look at all the attendance circumstances

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surrounding the creation of the easement.

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And the primary focus is to try to ascertain

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what the intent of the developer

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in this particular case was,

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after getting approval for a subdivision,

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getting a special permit for golf course

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to be located in the interior,

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specifically reserving in the recital

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to the original declaration.

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His intent to create a residential community

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with a golf course located in the center of it.

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If you look at all the circumstances,

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he acquired a thousand acres of land

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over more than a decade.

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Got the subdivision approval,

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got the special permit from the town.

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Hired an architect to design the golf course,

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determine that it was gonna cost him $4 million

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to build the golf course.

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And he records this document.

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<v Elspeth>Right.</v>

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<v ->So is it his intent to give the residential unit owners</v>

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the right to come in and say,

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"You can't operate the course the way it was designed?"

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<v ->So are you saying that the right to operate the course</v>

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includes despite the express restrictive easement

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that the right to operate the course

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includes the balls going into their house?

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<v John>Correct, our argument is it's axiomatic.</v>

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<v ->And looking at the cone,</v>

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you know those cones in the exhibits,

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that if you turn it this way, it's gonna go here.

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And if you shift the tee that way, it'll go there.

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There's no adjustment that the country club

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could have made for these owners, is that right?

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<v ->We made adjustments.</v>

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I mean, what the whole idea with...

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I mean a golf course can't control

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the mishits of the golfers who are playing the course.

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<v ->Right, but we still have</v>

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Massachusetts restrictive covenants.

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And you said we have a hundred years worth of loss.

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So why aren't our cases better than the Georgia case?

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<v ->This isn't a restrictive covenant.</v>

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<v ->(Elspeth) Oh, it isn't?</v>

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<v ->Oh, no it is.</v>

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It's an easement.
<v ->It's an easement.</v>

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Sorry it's an easement.
<v ->It's not subject to one--</v>

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<v ->But it's an affirmative easement.</v>

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Would you agree with that?
<v ->It is.</v>

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I mean, if you wanna talk about

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restrictive covenants that might be subject

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to the restrictive covenant statute.

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<v Elspeth>Well, it's all the things they can't do.</v>

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<v ->It's the things that they can't do, exactly your honor.</v>

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<v ->So forgive me for mixing up the terms.</v>

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But is this an affirmative easement then?

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<v ->It is.</v>
<v Elspeth>Okay.</v>

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<v ->It's an affirmative easement, just like...</v>

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I mean to me and my position has been throughout this trial

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the Commercial Wharf East Condominium Association

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versus Waterfront Parking Corp case.

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Is the closest case that you can have to this.

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In that particular case,

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the developer retained the right to control

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and collect fees, for the parking of vehicles--

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<v ->Can I ask you?</v>

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'Cause I know the Commercial Wharf case.

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And your time is limited.

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Can I ask you why there wasn't a motion

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for summary judgment here,

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given that your argument on appeal

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appears to be that as a matter of law,

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looking at these two documents.

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And one can determine that Lot 80 was subject

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to this easement.

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Why did this go to trial?

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What were the issues of material fact

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that needed to be resolved at trial?

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<v ->Well, again, just, the interpretive rule,</v>

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which I think clearly applies in this case,

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is that you look at these documents

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in light of what they say and you try to determine

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what the intent of the drafter of the document was,

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when he drafted these by looking at the language

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and considering the attendance circumstances

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and the facts that were known to the client

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at the time it was issued.

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<v ->And were those attendant circumstances</v>

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disputed before trial?

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Is that why there was no summary judgment?

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I think it was my position that they could be disputed.

253
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<v Wendlandt>Okay.</v>

254
00:11:19.590 --> 00:11:21.273
<v ->That's what I'm confused by.</v>

255
00:11:22.320 --> 00:11:25.860
Meaning that the golf course wasn't being operated.

256
00:11:25.860 --> 00:11:30.860
Hole 15 wasn't being operated in a customary unusual way,

257
00:11:30.990 --> 00:11:34.590
meaning it was too dangerous to put the house there.

258
00:11:34.590 --> 00:11:35.910
I'm just...

259
00:11:35.910 --> 00:11:38.100
'Cause again, I have the same question, Justice Wendlandt.

260
00:11:38.100 --> 00:11:40.050
It seems to be a question of law.

261
00:11:40.050 --> 00:11:42.100
Do you have the right to put golf balls

262
00:11:43.020 --> 00:11:47.490
not just into the five yards in their yard,

263
00:11:47.490 --> 00:11:50.490
but hit them further into the house?

264
00:11:50.490 --> 00:11:53.850
I mean, it's a 275 yard shot, right?

265
00:11:53.850 --> 00:11:55.890
To hit their house, that's a big hit.

266
00:11:55.890 --> 00:11:57.693
But golfers hit it that far.

267
00:11:58.620 --> 00:11:59.453
<v John>Correct.</v>

268
00:11:59.453 --> 00:12:03.690
<v ->And is that what isn't customary here?</v>

269
00:12:03.690 --> 00:12:06.690
I'm just trying to understand why was there a trial on this,

270
00:12:06.690 --> 00:12:11.190
if your view is correct that the attendance circumstances

271
00:12:11.190 --> 00:12:12.990
and the deed lang, which are clear?

272
00:12:12.990 --> 00:12:15.990
<v ->Well, when the complaint was filed</v>

273
00:12:15.990 --> 00:12:18.540
and up until the day the trial started,

274
00:12:18.540 --> 00:12:21.000
there were two claims that were being asserted.

275
00:12:21.000 --> 00:12:22.920
One was for trespass,

276
00:12:22.920 --> 00:12:25.710
which I think a motion for summary judgment probably

277
00:12:25.710 --> 00:12:26.970
would've been appropriate for,

278
00:12:26.970 --> 00:12:29.910
although it's a judgment call in my mind.

279
00:12:29.910 --> 00:12:31.530
The second claim was for nuisance.

280
00:12:31.530 --> 00:12:34.620
<v ->Isn't nuisance easier to disprove than trespass?</v>

281
00:12:34.620 --> 00:12:36.960
<v ->I think it's easier to disprove at trial,</v>

282
00:12:36.960 --> 00:12:40.083
but I'm not sure it's easier to disprove as a matter of law,

283
00:12:40.980 --> 00:12:44.430
because it's the standard that gets applied,

284
00:12:44.430 --> 00:12:48.600
I think is whether the reasonableness

285
00:12:48.600 --> 00:12:51.990
of the use compared whether it affects

286
00:12:51.990 --> 00:12:56.853
the ordinary sensibilities of the homeowner.

287
00:12:58.410 --> 00:13:00.723
I think the way I read it,

288
00:13:02.894 --> 00:13:04.560
it's potentially an issue of fact.

289
00:13:04.560 --> 00:13:06.780
<v ->That means something to me, the way you read it.</v>

290
00:13:06.780 --> 00:13:08.670
Does that mean then you agree

291
00:13:08.670 --> 00:13:13.670
that the language in section 20 or in 16

292
00:13:14.010 --> 00:13:16.380
can be subject to an ambiguity issue

293
00:13:16.380 --> 00:13:17.943
in terms of interpretation?

294
00:13:18.900 --> 00:13:20.460
Is it ambiguous?

295
00:13:20.460 --> 00:13:22.156
<v ->It's 20 ambiguous?</v>

296
00:13:22.156 --> 00:13:22.989
I think--

297
00:13:22.989 --> 00:13:24.813
<v Elspeth>20 ambiguous is 16 ambiguous?</v>

298
00:13:25.890 --> 00:13:28.050
<v ->I think there's a little bit of ambiguity</v>

299
00:13:28.050 --> 00:13:31.380
in that recourse to the surrounding circumstances,

300
00:13:31.380 --> 00:13:33.150
the attendance circumstances.

301
00:13:33.150 --> 00:13:35.070
When it was being adopted,

302
00:13:35.070 --> 00:13:38.400
the course hadn't even been constructed yet in 1999

303
00:13:38.400 --> 00:13:39.233
when the original declaration--

304
00:13:39.233 --> 00:13:40.740
<v ->Right, but do you think that they intended</v>

305
00:13:40.740 --> 00:13:43.140
that this express language in section six.

306
00:13:43.140 --> 00:13:44.790
Do you think that what they actually,

307
00:13:44.790 --> 00:13:46.830
you say we wanna know what the developer had in mind.

308
00:13:46.830 --> 00:13:48.510
Did they actually have in mind

309
00:13:48.510 --> 00:13:50.250
that the balls are going to go so far

310
00:13:50.250 --> 00:13:52.300
that they're going to hit people's homes?

311
00:13:53.730 --> 00:13:55.710
<v ->I think that's what happens</v>

312
00:13:55.710 --> 00:13:59.190
when you buy a house adjacent to a golf course.

313
00:13:59.190 --> 00:14:03.750
There's no magic elixir that you can put on golf balls

314
00:14:03.750 --> 00:14:04.620
to stop them.

315
00:14:04.620 --> 00:14:06.900
<v ->And this neighborhood,</v>

316
00:14:06.900 --> 00:14:09.330
it's a necklace of these stately houses

317
00:14:09.330 --> 00:14:12.480
tightly bound around the golf course, right?

318
00:14:12.480 --> 00:14:14.310
Was that in the original plan too.

319
00:14:14.310 --> 00:14:16.350
I mean, wasn't like there was a lot of room

320
00:14:16.350 --> 00:14:18.060
between the golf course and the houses.

321
00:14:18.060 --> 00:14:20.193
They're right along these fairways, right?

322
00:14:20.193 --> 00:14:22.915
<v ->They are immediately surround the fairways.</v>

323
00:14:22.915 --> 00:14:23.748
It's a golf...
<v Scott>Like 50 of them.</v>

324
00:14:23.748 --> 00:14:25.737
Right?
<v ->There's 50 of them.</v>

325
00:14:25.737 --> 00:14:28.713
<v ->Are 50 houses up and around the fairway here?</v>

326
00:14:30.330 --> 00:14:33.150
<v ->I think close to the fairway,</v>

327
00:14:33.150 --> 00:14:36.900
they may be closer to between 35 and 40.

328
00:14:36.900 --> 00:14:41.900
But there are houses on this golf course

329
00:14:42.120 --> 00:14:46.050
that the improved portion of the home

330
00:14:46.050 --> 00:14:48.630
goes right up to the boundary of the golf course.

331
00:14:48.630 --> 00:14:53.310
Which means, if this ruling is correct,

332
00:14:53.310 --> 00:14:57.760
you can't have a hole where any balls go on that property

333
00:14:59.130 --> 00:15:00.200
because it's all improved.

334
00:15:00.200 --> 00:15:02.670
<v ->It seems more complicated than that.</v>

335
00:15:02.670 --> 00:15:05.115
Let's just say that you're absolutely right.

336
00:15:05.115 --> 00:15:08.880
Subsection 20 of the original declaration applies.

337
00:15:08.880 --> 00:15:12.270
And let's condense it down that what that says is,

338
00:15:12.270 --> 00:15:15.720
the right to operate a golf course, okay?

339
00:15:15.720 --> 00:15:16.553
<v John>Yes.</v>

340
00:15:16.553 --> 00:15:21.270
<v ->So you've got somebody who's behind the 15th hole.</v>

341
00:15:21.270 --> 00:15:24.360
Somebody's on the side of this 17th hole.

342
00:15:24.360 --> 00:15:27.960
This is a dog leg left.

343
00:15:27.960 --> 00:15:29.850
The house is where it is.

344
00:15:29.850 --> 00:15:34.850
It's not like every few rounds

345
00:15:35.100 --> 00:15:39.090
somebody hits something into their yard.

346
00:15:39.090 --> 00:15:44.090
You're having on the improved area of the lot,

347
00:15:44.310 --> 00:15:46.920
according to the light most favorable of the plaintiff,

348
00:15:46.920 --> 00:15:49.500
she's fought this golf balls coming in

349
00:15:49.500 --> 00:15:54.120
and hitting the house a little more often than periodically.

350
00:15:54.120 --> 00:15:55.920
<v John>Once a month.</v>

351
00:15:55.920 --> 00:15:57.510
<v ->Isn't it possible?</v>

352
00:15:57.510 --> 00:16:00.990
Well, for the windows to break.

353
00:16:00.990 --> 00:16:04.320
Isn't it possible that you could be right

354
00:16:04.320 --> 00:16:07.680
that subsection 20 of the declaration applies

355
00:16:07.680 --> 00:16:11.520
and unimproved is not a limitation.

356
00:16:11.520 --> 00:16:14.130
And still is a factual matter

357
00:16:14.130 --> 00:16:16.770
that there could be a trespass

358
00:16:16.770 --> 00:16:19.710
and that's why there was no summary judgment?

359
00:16:19.710 --> 00:16:23.890
<v ->Well, that's not my understanding of what easement law</v>

360
00:16:25.170 --> 00:16:26.774
is interpreted as meaning.

361
00:16:26.774 --> 00:16:30.990
<v ->(indistinct) means, you can hit the house as often,</v>

362
00:16:30.990 --> 00:16:32.850
and there's no responsibility at all

363
00:16:32.850 --> 00:16:35.750
as far as the placement of the tees or anything like that.

364
00:16:37.350 --> 00:16:38.310
<v ->I think again,</v>

365
00:16:38.310 --> 00:16:40.860
if you look at the Georgia case that we cited,

366
00:16:40.860 --> 00:16:42.910
which you can say is distinguishable

367
00:16:43.980 --> 00:16:46.080
because there's more of a specific reference

368
00:16:46.080 --> 00:16:48.330
to unintentional--

369
00:16:48.330 --> 00:16:50.490
<v ->Right, they specifically included the language</v>

370
00:16:50.490 --> 00:16:54.338
about unintended ball hits or err balls or misses

371
00:16:54.338 --> 00:16:56.907
between how frequent they do that.

372
00:16:56.907 --> 00:16:59.940
<v ->But if you look at that case and get beyond that,</v>

373
00:16:59.940 --> 00:17:01.260
the second thing that was argued

374
00:17:01.260 --> 00:17:03.870
in that case by the plaintiffs unsuccessfully

375
00:17:03.870 --> 00:17:06.570
was that the mere volume of balls

376
00:17:06.570 --> 00:17:07.500
that were hitting the house.

377
00:17:07.500 --> 00:17:08.613
And in that case,

378
00:17:10.140 --> 00:17:14.970
10 to 15 balls a day we're hitting the house.

379
00:17:14.970 --> 00:17:16.533
We're going into the yard.

380
00:17:17.790 --> 00:17:20.400
There had been multiple occasions.

381
00:17:20.400 --> 00:17:22.200
The frequency of balls hitting the house

382
00:17:22.200 --> 00:17:23.640
was substantially higher.

383
00:17:23.640 --> 00:17:25.860
And this is over two and a half year period

384
00:17:25.860 --> 00:17:27.240
that we're talking about.

385
00:17:27.240 --> 00:17:29.190
They had dented the trucks.

386
00:17:29.190 --> 00:17:31.410
And they said that the mere volume

387
00:17:31.410 --> 00:17:34.350
exceeded the scope of the permissible easement.

388
00:17:34.350 --> 00:17:36.330
And the court in Georgia,

389
00:17:36.330 --> 00:17:39.420
and by the way, Georgia law and Massachusetts law

390
00:17:39.420 --> 00:17:42.030
are not ridiculously different.

391
00:17:42.030 --> 00:17:43.110
<v ->Council, can I?</v>

392
00:17:43.110 --> 00:17:46.350
So I know that you're over time.

393
00:17:46.350 --> 00:17:49.510
And so with the chief's indulgence, I have a question

394
00:17:50.820 --> 00:17:54.780
about any limitations that you see to the easement

395
00:17:54.780 --> 00:17:57.750
in section 20 of the original declaration.

396
00:17:57.750 --> 00:17:58.920
Because as I read it,

397
00:17:58.920 --> 00:18:03.920
it's reserving an easement to operate a golf course

398
00:18:05.550 --> 00:18:06.543
on Lot 80.

399
00:18:07.620 --> 00:18:09.330
<v John>Correct.</v>
<v ->Right?</v>

400
00:18:09.330 --> 00:18:12.510
So all this discussion about what's the natural.

401
00:18:12.510 --> 00:18:15.540
And understanding of how golf is played

402
00:18:15.540 --> 00:18:18.330
is largely irrelevant under your literal reading

403
00:18:18.330 --> 00:18:21.360
of section 20.

404
00:18:21.360 --> 00:18:26.360
As an easement to operate a golf course on Lot 80, right?

405
00:18:26.807 --> 00:18:30.180
'Cause if you can operate a golf course on Lot 80,

406
00:18:30.180 --> 00:18:34.170
there are no limits really to the errant ball

407
00:18:34.170 --> 00:18:36.930
flying over Lot 80, right?

408
00:18:36.930 --> 00:18:39.750
<v ->No, we can't put a green on the house.</v>

409
00:18:39.750 --> 00:18:40.777
We can't put a tee on the house.

410
00:18:40.777 --> 00:18:43.140
<v ->But yeah, that's my question I guess.</v>

411
00:18:43.140 --> 00:18:45.010
Is what are the limits

412
00:18:46.110 --> 00:18:49.830
that one would read into section 20

413
00:18:49.830 --> 00:18:53.460
if one can operate a golf course on Lot 80?

414
00:18:53.460 --> 00:18:56.070
<v ->Well, the things that are a natural part</v>

415
00:18:56.070 --> 00:18:58.800
of the golf course, which would be for example,

416
00:18:58.800 --> 00:19:01.410
okay, we need water to irrigate the golf course.

417
00:19:01.410 --> 00:19:03.840
We wanna drain the roads into the pond,

418
00:19:03.840 --> 00:19:05.130
irrigate the golf course.

419
00:19:05.130 --> 00:19:07.740
We need a drainage easement across the lots

420
00:19:07.740 --> 00:19:09.633
to get to the golf course.

421
00:19:10.620 --> 00:19:12.810
<v ->Usual and customary include</v>

422
00:19:12.810 --> 00:19:15.603
literally putting the flag right next to their house.

423
00:19:17.370 --> 00:19:20.103
I take it that would be pushing it a little, right?

424
00:19:21.240 --> 00:19:22.380
<v ->I don't think we have the right</v>

425
00:19:22.380 --> 00:19:24.330
to change the operation of the golf course.

426
00:19:24.330 --> 00:19:25.903
I think we just have the right to operate the golf course

427
00:19:25.903 --> 00:19:28.170
the way it was built.

428
00:19:28.170 --> 00:19:30.600
<v ->It means that they can operate it as a golf course</v>

429
00:19:30.600 --> 00:19:33.570
so they couldn't have 10 parties

430
00:19:33.570 --> 00:19:34.710
at three o'clock in the morning

431
00:19:34.710 --> 00:19:36.450
next to these people's houses, correct?

432
00:19:36.450 --> 00:19:37.283
<v John>Correct.</v>

433
00:19:37.283 --> 00:19:38.880
<v ->It's a right to have golfers tee off</v>

434
00:19:38.880 --> 00:19:40.135
and do what golfers do.

435
00:19:40.135 --> 00:19:41.031
<v ->Right.</v>

436
00:19:41.031 --> 00:19:42.223
And we don't have the right

437
00:19:42.223 --> 00:19:43.800
to retrieve the golf balls either.

438
00:19:43.800 --> 00:19:44.910
It's just the golfers who do.

439
00:19:44.910 --> 00:19:46.680
They have the exclusive right to do that.

440
00:19:46.680 --> 00:19:48.180
<v ->So before you wrap up,</v>

441
00:19:48.180 --> 00:19:49.230
because you are out of time

442
00:19:49.230 --> 00:19:50.670
with the chief's indulgence please.

443
00:19:50.670 --> 00:19:52.527
I just would like to ask you about the other issue.

444
00:19:52.527 --> 00:19:56.610
And that is whether this should have gone to the jury?

445
00:19:56.610 --> 00:19:59.460
And you're saying that it really is a question of law,

446
00:19:59.460 --> 00:20:01.620
the interpretation of the easements.

447
00:20:01.620 --> 00:20:03.712
<v ->Well, I believe the case law establishes that, that's--</v>

448
00:20:03.712 --> 00:20:04.800
<v ->All right, but that was not</v>

449
00:20:04.800 --> 00:20:06.810
when the judge gave us instructions,

450
00:20:06.810 --> 00:20:09.120
there was no objection to this, correct?

451
00:20:09.120 --> 00:20:11.730
<v John>There was.</v>
<v ->There was, where?</v>

452
00:20:11.730 --> 00:20:14.580
<v ->I filed a supplemental jury instruction</v>

453
00:20:14.580 --> 00:20:18.300
saying exactly what I wanted the judge to be told.

454
00:20:18.300 --> 00:20:21.480
<v ->But after that you didn't object, isn't that true?</v>

455
00:20:21.480 --> 00:20:22.313
<v ->I didn't object.</v>

456
00:20:22.313 --> 00:20:25.680
I had to ask the judge to give some kind of an instruction.

457
00:20:25.680 --> 00:20:28.590
In his initial instructions, he told the jury nothing.

458
00:20:28.590 --> 00:20:31.117
So went to sidebar and I basically said,

459
00:20:31.117 --> 00:20:33.540
"Can you please tell the jury--"

460
00:20:33.540 --> 00:20:35.970
<v ->They say you didn't object.</v>

461
00:20:35.970 --> 00:20:38.670
You push all along for having a different interpretation.

462
00:20:38.670 --> 00:20:40.710
You push all along but then at the last second,

463
00:20:40.710 --> 00:20:42.990
you don't say, "I preserve my objection."

464
00:20:42.990 --> 00:20:43.830
Right?

465
00:20:43.830 --> 00:20:46.200
You fight this pretty steadily.

466
00:20:46.200 --> 00:20:48.810
You file a motion for a directed verdict.

467
00:20:48.810 --> 00:20:52.590
You argue, you ask to be able to do a bunch of things,

468
00:20:52.590 --> 00:20:55.800
but you don't object to the last bit of this, right?

469
00:20:55.800 --> 00:20:58.800
<v ->I think you could say that I gave up.</v>

470
00:20:58.800 --> 00:20:59.753
<v Scott>Right.</v>

471
00:20:59.753 --> 00:21:01.440
(Elspeth laughing)

472
00:21:01.440 --> 00:21:03.600
<v Wendlandt>Can I ask you one more question?</v>

473
00:21:03.600 --> 00:21:06.790
<v ->Sure.</v>
<v ->So I know section 20</v>

474
00:21:10.350 --> 00:21:13.350
gives you the right to operate a golf course on Lot 80.

475
00:21:13.350 --> 00:21:16.890
And because it's not one of the enumerated lots

476
00:21:16.890 --> 00:21:19.113
in the declaration, right?

477
00:21:20.670 --> 00:21:22.350
Yes, it's not.
<v ->It's one of the...</v>

478
00:21:22.350 --> 00:21:24.720
Lots referenced is not being subject

479
00:21:24.720 --> 00:21:26.040
to the original declaration.
<v ->Right.</v>

480
00:21:26.040 --> 00:21:28.230
So it's not enumerated in the declaration.

481
00:21:28.230 --> 00:21:32.073
But then in the amendment it becomes an enumerated lot.

482
00:21:33.840 --> 00:21:35.103
It's identified.

483
00:21:36.120 --> 00:21:40.230
And I'm wondering how the amendment

484
00:21:40.230 --> 00:21:43.050
now having identified Lot 80

485
00:21:43.050 --> 00:21:45.870
affects our interpretation of section 20

486
00:21:45.870 --> 00:21:47.490
of the original declaration.

487
00:21:47.490 --> 00:21:50.430
If you could follow that, does that?

488
00:21:50.430 --> 00:21:51.993
You look puzzled?

489
00:21:53.490 --> 00:21:55.650
<v ->I think you look at the language and the amendment</v>

490
00:21:55.650 --> 00:21:57.000
it says so that all the provisions

491
00:21:57.000 --> 00:21:59.490
in the original declaration remain in force.

492
00:21:59.490 --> 00:22:02.670
<v ->Right, and one of the original provisions</v>

493
00:22:02.670 --> 00:22:05.940
of the declaration is the section 20,

494
00:22:05.940 --> 00:22:09.373
which is the right to operate a golf course on Lot 80.

495
00:22:12.840 --> 00:22:16.200
But now Lot 80 is expressly subject

496
00:22:16.200 --> 00:22:19.920
to the declaration as a golf course lot.

497
00:22:19.920 --> 00:22:22.540
<v ->Well, I think the the clear intent</v>

498
00:22:23.885 --> 00:22:25.890
of the two documents is just to clarify,

499
00:22:25.890 --> 00:22:29.670
once the golf course was actually constructed in 2001,

500
00:22:29.670 --> 00:22:32.040
now we know what lots are actually adjacent

501
00:22:32.040 --> 00:22:33.000
to the golf course.

502
00:22:33.000 --> 00:22:35.550
<v ->So now know we do know that Lot 80</v>

503
00:22:35.550 --> 00:22:37.353
is subject to the declaration.

504
00:22:39.480 --> 00:22:42.053
<v ->I think Lot 80 is subject to the declaration.</v>

505
00:22:42.053 --> 00:22:43.710
I think if you look at the rules

506
00:22:43.710 --> 00:22:45.630
relating to general plant developments

507
00:22:45.630 --> 00:22:47.010
or common scheme developments,

508
00:22:47.010 --> 00:22:50.130
the fact that a lot of lots were excluded.

509
00:22:50.130 --> 00:22:51.810
The original lot owners can enforce

510
00:22:51.810 --> 00:22:54.150
all those restrictions in the declaration

511
00:22:54.150 --> 00:22:55.683
of covenants and restrictions.

512
00:22:57.120 --> 00:22:58.410
<v ->So that's a problem for you,</v>

513
00:22:58.410 --> 00:23:01.980
because if Lot 80 is subject to this declaration,

514
00:23:01.980 --> 00:23:06.980
then paragraph 20 doesn't allow a golf course

515
00:23:07.650 --> 00:23:09.603
to be operated on Lot 80.

516
00:23:11.640 --> 00:23:14.340
<v ->I respectfully disagree with that interpretation</v>

517
00:23:14.340 --> 00:23:15.930
of section 20.

518
00:23:15.930 --> 00:23:18.840
<v ->If you read it literally you weren't expressly subject</v>

519
00:23:18.840 --> 00:23:19.860
to it before.

520
00:23:19.860 --> 00:23:24.860
So you are in the sort of zone of land that's

521
00:23:25.740 --> 00:23:27.240
covered by the golf course.

522
00:23:27.240 --> 00:23:29.553
Then when you're expressly added later,

523
00:23:31.140 --> 00:23:33.120
that doesn't put you within 20,

524
00:23:33.120 --> 00:23:36.390
it just means you're expressly included now.

525
00:23:36.390 --> 00:23:38.370
Those can be read together, I think.

526
00:23:38.370 --> 00:23:40.370
<v ->I think they can be read together too.</v>

527
00:23:41.220 --> 00:23:43.770
The amendment is just trying to be more specific

528
00:23:43.770 --> 00:23:47.100
and trying to say things that there might be a fight over.

529
00:23:47.100 --> 00:23:48.870
Can you have a pool in your backyard?

530
00:23:48.870 --> 00:23:50.310
The amendment says no.

531
00:23:50.310 --> 00:23:52.440
Can you have a play set in your backyard,

532
00:23:52.440 --> 00:23:53.820
a swing set and whatever?

533
00:23:53.820 --> 00:23:55.050
<v ->You thought it was obvious</v>

534
00:23:55.050 --> 00:23:56.940
that you can run a golf course

535
00:23:56.940 --> 00:23:58.770
and hit golf balls out of bounce.

536
00:23:58.770 --> 00:24:00.453
But you didn't quite say it.

537
00:24:01.920 --> 00:24:03.060
<v ->Well I think the amicus brief</v>

538
00:24:03.060 --> 00:24:04.653
covered that for me, hopefully.

539
00:24:06.390 --> 00:24:07.500
<v Wendlandt>Okay, thank you very much.</v>

540
00:24:07.500 --> 00:24:08.333
<v ->Thank you.</v>

541
00:24:10.500 --> 00:24:11.723
<v Wendlandt>Attorney Galvin.</v>

542
00:24:15.720 --> 00:24:18.420
<v ->Good morning, chief justice and associate justices.</v>

543
00:24:18.420 --> 00:24:19.350
May I please the court?

544
00:24:19.350 --> 00:24:21.240
My name is attorney Robert Galvin.

545
00:24:21.240 --> 00:24:22.710
With me is Attorney Riley,

546
00:24:22.710 --> 00:24:25.383
and we represent Eric and Athena Tenczar.

547
00:24:27.330 --> 00:24:28.830
Your honors, we believe that the motion

548
00:24:28.830 --> 00:24:30.840
for directive verdict and judgment

549
00:24:30.840 --> 00:24:33.630
was standing the verdict were correctly decided

550
00:24:33.630 --> 00:24:35.610
'cause the covenants and restrictions

551
00:24:35.610 --> 00:24:36.810
by their literal terms,

552
00:24:36.810 --> 00:24:39.420
do not authorize trespass

553
00:24:39.420 --> 00:24:40.590
permit the plaintiff's home

554
00:24:40.590 --> 00:24:43.200
to be continuously damaged by errant golf balls.

555
00:24:43.200 --> 00:24:45.690
<v Scott>Can I ask.</v>
<v ->Sure.</v>

556
00:24:45.690 --> 00:24:48.000
<v ->Are they allowed to operate a golf course</v>

557
00:24:48.000 --> 00:24:50.550
in the customary unusual way?

558
00:24:50.550 --> 00:24:51.703
Is that your?

559
00:24:51.703 --> 00:24:54.420
<v ->Not on the Tenczar's property, your honor?</v>

560
00:24:54.420 --> 00:24:56.550
<v ->Really, how is that possible?</v>

561
00:24:56.550 --> 00:25:00.500
Then I take it that applies to every property next to...

562
00:25:01.359 --> 00:25:04.143
There are 50 homes surrounding this thing, right?

563
00:25:05.280 --> 00:25:07.710
They're all built around the fairways,

564
00:25:07.710 --> 00:25:09.690
it's a golfing community.

565
00:25:09.690 --> 00:25:13.690
I don't understand how you can say

566
00:25:15.814 --> 00:25:17.520
that they can run a golf course,

567
00:25:17.520 --> 00:25:20.310
but they can't hit golf balls out of bounds.

568
00:25:20.310 --> 00:25:23.580
They can only hit golf balls in...

569
00:25:23.580 --> 00:25:25.710
I understand the golfers should not be going

570
00:25:25.710 --> 00:25:28.650
into their house or up to their windows.

571
00:25:28.650 --> 00:25:29.790
That's bad.

572
00:25:29.790 --> 00:25:32.880
And that was what they expressly dealt with.

573
00:25:32.880 --> 00:25:35.850
But isn't the whole purpose of this community

574
00:25:35.850 --> 00:25:39.270
and these declarations to create a golf course

575
00:25:39.270 --> 00:25:42.060
surrounded by these homes.

576
00:25:42.060 --> 00:25:44.790
And if you buy a house there,

577
00:25:44.790 --> 00:25:48.180
it's clear golf balls are not gonna stay on line.

578
00:25:48.180 --> 00:25:50.103
They never do, they never will.

579
00:25:51.690 --> 00:25:54.810
<v ->Your honor, I agree that my clients bought a home</v>

580
00:25:54.810 --> 00:25:57.000
next to a golf course.

581
00:25:57.000 --> 00:25:58.680
I think that was plainly obvious.

582
00:25:58.680 --> 00:26:00.960
But what isn't plainly obvious,

583
00:26:00.960 --> 00:26:02.640
and maybe it's a little bit more obvious

584
00:26:02.640 --> 00:26:04.110
from the photographs in the record,

585
00:26:04.110 --> 00:26:06.810
this house was 200 feet from the fairway.

586
00:26:06.810 --> 00:26:11.280
There was a tree buffer between the rear of my client's home

587
00:26:11.280 --> 00:26:12.300
and the golf course.

588
00:26:12.300 --> 00:26:14.040
<v ->Reinterpret the declaration.</v>

589
00:26:14.040 --> 00:26:16.650
Tell us how those declarations about the customary

590
00:26:16.650 --> 00:26:19.320
and usual operation of golf course

591
00:26:19.320 --> 00:26:20.790
don't apply to your clients.

592
00:26:20.790 --> 00:26:22.260
Can you walk us through how--

593
00:26:22.260 --> 00:26:23.093
<v Galvin>I can, your honor.</v>

594
00:26:23.093 --> 00:26:24.390
<v ->Yeah, go ahead.</v>

595
00:26:24.390 --> 00:26:26.880
<v ->I think when you have the original declaration</v>

596
00:26:26.880 --> 00:26:30.810
of covenants, there are 34 some odd lots

597
00:26:30.810 --> 00:26:32.460
that are expressly subject

598
00:26:32.460 --> 00:26:34.593
to these 20 enumerated restrictions.

599
00:26:36.810 --> 00:26:39.210
The remainder property that wasn't subject

600
00:26:39.210 --> 00:26:40.470
to those restrictions,

601
00:26:40.470 --> 00:26:42.900
the developer has the right to build a golf course on,

602
00:26:42.900 --> 00:26:44.940
operate it, maintain it.

603
00:26:44.940 --> 00:26:47.850
I don't dispute that, that occurred at all.

604
00:26:47.850 --> 00:26:51.330
Then what happened is four lots was sold off

605
00:26:51.330 --> 00:26:53.190
to the golf course entity of the defendant

606
00:26:53.190 --> 00:26:54.930
in this particular case.

607
00:26:54.930 --> 00:26:56.520
And they build the golf course

608
00:26:56.520 --> 00:26:59.790
and it's related facilities on those four lots.

609
00:26:59.790 --> 00:27:02.291
Then they amended the--

610
00:27:02.291 --> 00:27:03.270
<v ->Hold up, but the first one,</v>

611
00:27:03.270 --> 00:27:05.580
developer expressly reserves and retains for itself

612
00:27:05.580 --> 00:27:08.370
the right to create, operate, and maintain a golf course

613
00:27:08.370 --> 00:27:10.530
on all the portions of the land as shown in the plan

614
00:27:10.530 --> 00:27:13.200
other than those expressly subject to this decoration.

615
00:27:13.200 --> 00:27:18.200
So they are allowed at that time to operate a golf course

616
00:27:19.530 --> 00:27:22.500
on the property that your clients are gonna buy, right?

617
00:27:22.500 --> 00:27:23.333
<v Galvin>Yes, your honor, I agree with that.</v>

618
00:27:23.333 --> 00:27:25.140
<v ->That point they're covered clearly.</v>

619
00:27:25.140 --> 00:27:26.220
<v Galvin>Right, because the golf course</v>

620
00:27:26.220 --> 00:27:27.240
wasn't even designed.

621
00:27:27.240 --> 00:27:28.378
They left a interior very large--

622
00:27:28.378 --> 00:27:30.630
<v ->Oh, it's not because the golf course wasn't designed,</v>

623
00:27:30.630 --> 00:27:32.790
it's because paragraph 20 says so.

624
00:27:32.790 --> 00:27:33.623
<v ->Yes, your--</v>

625
00:27:33.623 --> 00:27:36.540
<v ->So what happens in 2001, in your view.</v>

626
00:27:36.540 --> 00:27:38.490
<v ->In 2001?</v>
<v ->Yes.</v>

627
00:27:38.490 --> 00:27:41.370
<v ->The Covenant is amended, paragraph 16 is rewritten.</v>

628
00:27:41.370 --> 00:27:43.920
My client's lot is now a golf course lot.

629
00:27:43.920 --> 00:27:47.310
It's not a lot that you can operate a golf course on

630
00:27:47.310 --> 00:27:49.050
under the original declaration.

631
00:27:49.050 --> 00:27:52.410
<v ->But the amendment says the golf course lots</v>

632
00:27:52.410 --> 00:27:53.880
which includes Lot 80.

633
00:27:53.880 --> 00:27:54.713
<v Galvin>Correct.</v>

634
00:27:54.713 --> 00:27:58.320
<v ->Are also subject to the following.</v>

635
00:27:58.320 --> 00:28:01.110
Not only subject to the following,

636
00:28:01.110 --> 00:28:03.630
but also subject to the following.

637
00:28:03.630 --> 00:28:08.250
And so I'm wondering how as a legal interpretation

638
00:28:08.250 --> 00:28:11.430
you are saying Lot 80 is no longer subject

639
00:28:11.430 --> 00:28:13.830
to what it was subject to under the declaration,

640
00:28:13.830 --> 00:28:17.040
which you agreed was the right to operate a golf course

641
00:28:17.040 --> 00:28:19.830
on Lot 80 itself.

642
00:28:19.830 --> 00:28:24.830
But that this somehow limits what can happen on Lot 80,

643
00:28:25.440 --> 00:28:27.750
even though it has that word also.

644
00:28:27.750 --> 00:28:28.753
<v ->Well, your honor,</v>

645
00:28:28.753 --> 00:28:32.530
the language of the last phrase of paragraph 20

646
00:28:34.770 --> 00:28:36.720
when you read these documents together,

647
00:28:37.620 --> 00:28:41.370
takes this golf course lot expressly out of that land

648
00:28:41.370 --> 00:28:43.890
upon what you can operate, create

649
00:28:43.890 --> 00:28:45.420
and maintain a golf course.

650
00:28:45.420 --> 00:28:49.470
I think that's the only logical reading of those documents.

651
00:28:49.470 --> 00:28:50.503
And I agree--

652
00:28:50.503 --> 00:28:53.250
<v ->Even though, it seems like they're trying to do</v>

653
00:28:53.250 --> 00:28:54.810
the exact opposite of what you're saying,

654
00:28:54.810 --> 00:28:58.830
which is to put tighter restrictions on those lots

655
00:28:58.830 --> 00:29:00.990
because they're right in the line of fire

656
00:29:00.990 --> 00:29:02.460
next to the fairway.

657
00:29:02.460 --> 00:29:04.260
And that's why Justice Wen was pointing about

658
00:29:04.260 --> 00:29:07.720
also makes it complete sense that the titles--

659
00:29:07.720 --> 00:29:10.620
<v ->Well, we also have the language of subpart A</v>

660
00:29:10.620 --> 00:29:12.930
the developer has the right to reserve or grant easements

661
00:29:12.930 --> 00:29:14.850
for the benefit of the owner of the golf course.

662
00:29:14.850 --> 00:29:17.250
<v ->But that's the language of easements are written in.</v>

663
00:29:17.250 --> 00:29:20.880
Reserve the right, creates the right, it's not.

664
00:29:20.880 --> 00:29:23.910
<v ->Well, the evidence in this case was there were no other</v>

665
00:29:23.910 --> 00:29:26.922
recorded covenants, your easements in this case.

666
00:29:26.922 --> 00:29:28.140
<v Scott>And 20.</v>
<v Wendlandt>Yeah.</v>

667
00:29:28.140 --> 00:29:29.220
<v ->Excuse me.</v>
<v Scott>There's 20.</v>

668
00:29:29.220 --> 00:29:30.688
<v Wendlandt>Section 20.</v>

669
00:29:30.688 --> 00:29:32.427
<v Scott>Yeah, section 20.</v>

670
00:29:32.427 --> 00:29:35.310
<v ->But to read those two documents together logically,</v>

671
00:29:35.310 --> 00:29:37.020
and I think the way it's properly read

672
00:29:37.020 --> 00:29:38.733
is once the amendment is on,

673
00:29:39.962 --> 00:29:42.060
this lot is now a golf course lot.

674
00:29:42.060 --> 00:29:44.190
It is not part of the golf course anymore.

675
00:29:44.190 --> 00:29:46.593
<v ->It's now more restricted.</v>

676
00:29:47.940 --> 00:29:50.103
There are more restrictions in play.

677
00:29:50.940 --> 00:29:53.550
Meaning you're building a house next to the golf course,

678
00:29:53.550 --> 00:29:55.260
they're creating these additional restrictions

679
00:29:55.260 --> 00:29:56.910
saying don't put a pool in there.

680
00:29:56.910 --> 00:29:59.670
Don't put outdoor furniture out there

681
00:29:59.670 --> 00:30:03.150
because basically you're gonna get hit by golf balls

682
00:30:03.150 --> 00:30:05.880
or you're gonna make noise and disturb golfers.

683
00:30:05.880 --> 00:30:07.200
But at the same time you're saying

684
00:30:07.200 --> 00:30:10.380
the ordinary customary operation of a golf course

685
00:30:10.380 --> 00:30:12.420
no longer applies.

686
00:30:12.420 --> 00:30:14.460
<v ->Well, your honor, red literally your...</v>

687
00:30:14.460 --> 00:30:15.930
I mean, I'm taking it that way.

688
00:30:15.930 --> 00:30:19.163
My clients no longer have a right to have a house there--

689
00:30:19.163 --> 00:30:21.330
<v ->No, they have a right to a house.</v>

690
00:30:21.330 --> 00:30:24.423
They have a beautiful house next to a golf course.

691
00:30:26.970 --> 00:30:28.050
Six months of the year,

692
00:30:28.050 --> 00:30:30.270
there's no golf or whatever there is.

693
00:30:30.270 --> 00:30:34.320
Then there are golfers and it's 270 yards away.

694
00:30:34.320 --> 00:30:37.380
You have to hit it high over trees.

695
00:30:37.380 --> 00:30:41.070
And how many balls are going in there now a year?

696
00:30:41.070 --> 00:30:42.240
How many are hitting the house?

697
00:30:42.240 --> 00:30:44.400
I understand they're gonna be balls rolling into their yard.

698
00:30:44.400 --> 00:30:45.600
<v ->Your honor they did--</v>

699
00:30:45.600 --> 00:30:47.880
<v Scott>How many are hitting the house at this point?</v>

700
00:30:47.880 --> 00:30:49.470
<v ->Well, your honor, in the last three months</v>

701
00:30:49.470 --> 00:30:50.850
we've had 10 balls.

702
00:30:50.850 --> 00:30:51.683
<v Scott>Hit the house.</v>

703
00:30:51.683 --> 00:30:53.097
<v ->And that is--</v>

704
00:30:53.097 --> 00:30:54.300
<v Scott>But is that in the record?</v>

705
00:30:54.300 --> 00:30:55.133
How many are in the record?

706
00:30:55.133 --> 00:30:55.966
<v ->No, that is not in the record.</v>

707
00:30:55.966 --> 00:30:57.942
'Cause this is all on the last three months.

708
00:30:57.942 --> 00:30:58.775
<v ->What about the record?</v>

709
00:30:58.775 --> 00:31:00.000
What is the record evidence show?

710
00:31:00.000 --> 00:31:03.782
<v ->The record showed 651 golf balls.</v>

711
00:31:03.782 --> 00:31:07.050
<v ->How many are hitting a house of the 651?</v>

712
00:31:07.050 --> 00:31:07.883
<v ->I'm sorry, your honor.</v>

713
00:31:07.883 --> 00:31:08.940
I don't know the exact number.

714
00:31:08.940 --> 00:31:11.250
<v ->Roughly.</v>
<v ->Roughly a hundred.</v>

715
00:31:11.250 --> 00:31:12.720
<v ->So in three years,</v>

716
00:31:12.720 --> 00:31:15.120
a hundred golf balls have hit the house?

717
00:31:15.120 --> 00:31:16.020
<v ->Yes, your honor.</v>

718
00:31:17.850 --> 00:31:20.757
Okay, at any event, I think that--

719
00:31:20.757 --> 00:31:23.343
<v ->And just roughly how many people?</v>

720
00:31:24.240 --> 00:31:28.723
Is the record contain how many people play this course?

721
00:31:28.723 --> 00:31:30.120
<v Galvin>I think there is some evidence</v>

722
00:31:30.120 --> 00:31:32.730
of how many people play

723
00:31:32.730 --> 00:31:35.880
coming from the golf course owner or the golf pro.

724
00:31:35.880 --> 00:31:39.810
<v ->So we've got 30 balls a year hitting the house.</v>

725
00:31:39.810 --> 00:31:41.310
Is that what we've got, sorry?

726
00:31:42.420 --> 00:31:43.253
<v ->Well, your honor,</v>

727
00:31:43.253 --> 00:31:48.140
at the beginning you recall there were no changes

728
00:31:49.710 --> 00:31:50.640
made to the golf course,

729
00:31:50.640 --> 00:31:52.530
but during the context of this litigation,

730
00:31:52.530 --> 00:31:56.073
there were some changes that were made on the golf course,

731
00:31:57.330 --> 00:32:00.690
presumptively to diminish the number of golf balls.

732
00:32:00.690 --> 00:32:02.520
So I think that there were more at the beginning

733
00:32:02.520 --> 00:32:04.530
and lesser at the end.

734
00:32:04.530 --> 00:32:07.830
But still far more than an occasional errant shot.

735
00:32:07.830 --> 00:32:09.120
<v ->Can I ask the other question?</v>

736
00:32:09.120 --> 00:32:10.770
So in your view,

737
00:32:10.770 --> 00:32:14.940
we look at only this particular easement,

738
00:32:14.940 --> 00:32:18.180
that golfers can collect their ball in the yard,

739
00:32:18.180 --> 00:32:20.190
but they can't go into the proof section.

740
00:32:20.190 --> 00:32:21.023
<v Galvin>Yes, your honor.</v>

741
00:32:21.023 --> 00:32:24.330
<v ->Doesn't that contemplate that their golf balls</v>

742
00:32:24.330 --> 00:32:28.203
going to be further in and the golfers can't get them?

743
00:32:29.340 --> 00:32:32.160
'Cause literally it's not possible, right?

744
00:32:32.160 --> 00:32:35.823
To prevent golf balls from going there, is there?

745
00:32:36.938 --> 00:32:38.430
<v ->I don't think it's possible to contain</v>

746
00:32:38.430 --> 00:32:41.520
all errand golf balls to a particular area.

747
00:32:41.520 --> 00:32:43.410
And some people could purposefully hit well

748
00:32:43.410 --> 00:32:45.360
<v ->But how do they...</v>

749
00:32:45.360 --> 00:32:48.210
Well, golfers tend not like to hit the ball out of bounds.

750
00:32:48.210 --> 00:32:50.790
<v ->Well, your honor, the evidence in this case showed</v>

751
00:32:50.790 --> 00:32:52.800
that the hole was designed to be played in a way

752
00:32:52.800 --> 00:32:54.990
that the house and the yard area was

753
00:32:54.990 --> 00:32:56.850
outside this safety cone.

754
00:32:56.850 --> 00:32:57.683
<v Scott>Right.</v>

755
00:32:57.683 --> 00:32:59.370
<v ->But what the evidence also showed</v>

756
00:32:59.370 --> 00:33:02.970
was that when this golf course was constructed,

757
00:33:02.970 --> 00:33:04.863
the golf course itself.

758
00:33:05.880 --> 00:33:07.500
<v ->Well, was outside the safety cone</v>

759
00:33:07.500 --> 00:33:10.320
because there was a heavily wooded area, right?

760
00:33:10.320 --> 00:33:11.153
It's--
<v ->No.</v>

761
00:33:11.153 --> 00:33:14.070
The safety cone included a heavily wooded area

762
00:33:14.070 --> 00:33:16.200
when it was originally designed.

763
00:33:16.200 --> 00:33:19.230
The evidence at trial from the plaintiff's expert

764
00:33:19.230 --> 00:33:21.870
was based on an actual observation

765
00:33:21.870 --> 00:33:24.810
of people playing the hole based on a website--

766
00:33:24.810 --> 00:33:26.370
<v Frank>Are people trying to cut the dog leg.</v>

767
00:33:26.370 --> 00:33:27.690
<v ->They worry, your honor,</v>

768
00:33:27.690 --> 00:33:31.290
the hole is not as far as 275 yards to the house.

769
00:33:31.290 --> 00:33:32.610
It's shorter than that.

770
00:33:32.610 --> 00:33:35.160
To cut the corner, it's 210 yards.

771
00:33:35.160 --> 00:33:36.180
I think that was the evidence

772
00:33:36.180 --> 00:33:38.280
to get it over the sand trap at the corner.

773
00:33:38.280 --> 00:33:40.770
So people, that's not a long distance.

774
00:33:40.770 --> 00:33:42.240
<v ->They changed the alignment of the tee box</v>

775
00:33:42.240 --> 00:33:43.073
to stop that, right?

776
00:33:43.073 --> 00:33:44.970
<v ->They did, and the website for the golf course</v>

777
00:33:44.970 --> 00:33:47.070
that described how you played the hole

778
00:33:47.070 --> 00:33:49.710
encouraged people to hit it over the trap

779
00:33:49.710 --> 00:33:51.270
to the wide expanse of the fairway

780
00:33:51.270 --> 00:33:53.160
and the opposite side of the trap.

781
00:33:53.160 --> 00:33:54.600
And when you do that,

782
00:33:54.600 --> 00:33:57.390
the entire safety cone shifts to the left.

783
00:33:57.390 --> 00:34:01.590
And my client's house is located in the safety cone.

784
00:34:01.590 --> 00:34:03.930
<v Scott>Are you saying they're intentionally</v>

785
00:34:03.930 --> 00:34:06.720
telling golfers to aim it at the house?

786
00:34:06.720 --> 00:34:08.880
<v ->I don't think they're intentionally doing it,</v>

787
00:34:08.880 --> 00:34:11.460
but they intentionally put something on the website

788
00:34:11.460 --> 00:34:13.440
and said, "This is how to play the hole."

789
00:34:13.440 --> 00:34:15.420
And when you do that,

790
00:34:15.420 --> 00:34:17.520
you're not playing the hole the way it was designed

791
00:34:17.520 --> 00:34:19.230
according to Mr. Pascuzzo.

792
00:34:19.230 --> 00:34:22.503
You're doing it in a way that might be easier, but that--

793
00:34:22.503 --> 00:34:24.060
<v ->Just a specific question.</v>

794
00:34:24.060 --> 00:34:25.860
To cut the corner of the way you're saying,

795
00:34:25.860 --> 00:34:27.390
how far do you have to hit it in the air

796
00:34:27.390 --> 00:34:28.800
to cut the hole?
<v ->210 yards</v>

797
00:34:28.800 --> 00:34:30.750
to carry it over a bunker at the corner

798
00:34:30.750 --> 00:34:31.863
from the members' tee.

799
00:34:33.180 --> 00:34:34.110
<v ->As originally done,</v>

800
00:34:34.110 --> 00:34:37.380
but then they moved it and became much further.

801
00:34:37.380 --> 00:34:38.520
<v Galvin>No, your honor.</v>

802
00:34:38.520 --> 00:34:41.220
<v ->So as it's currently designed,</v>

803
00:34:41.220 --> 00:34:44.460
it's 210 yards to cut the corner?

804
00:34:44.460 --> 00:34:46.020
<v ->From the original member's tee</v>

805
00:34:46.020 --> 00:34:48.720
which has been moved, your honor,

806
00:34:48.720 --> 00:34:51.870
it was 210 yards to cut the corner.

807
00:34:51.870 --> 00:34:54.510
And the entire golf hole

808
00:34:54.510 --> 00:34:56.973
was just a little longer than 300 yards.

809
00:34:59.075 --> 00:35:00.420
In the world that we live in today,

810
00:35:00.420 --> 00:35:03.780
this is reachable by--

811
00:35:03.780 --> 00:35:04.660
<v ->Can I ask a couple questions</v>

812
00:35:04.660 --> 00:35:06.870
about the emotional distress damages?

813
00:35:06.870 --> 00:35:08.190
<v Galvin>Certainly, your honor.</v>

814
00:35:08.190 --> 00:35:09.420
<v ->And the damages in general.</v>

815
00:35:09.420 --> 00:35:14.420
So your clients look to shatterproof.

816
00:35:15.780 --> 00:35:18.663
They look to whether they can buy stronger glass.

817
00:35:20.280 --> 00:35:23.760
And that costs $20,000, right?

818
00:35:23.760 --> 00:35:24.593
Something like that.

819
00:35:24.593 --> 00:35:25.890
Or 40,000, I can't remember what that was.

820
00:35:25.890 --> 00:35:29.280
<v ->My clients, when the windows were broken</v>

821
00:35:29.280 --> 00:35:31.500
consulted with a company that was local here

822
00:35:31.500 --> 00:35:33.810
that did this type of repair work.

823
00:35:33.810 --> 00:35:36.960
And the testimony at trial from that witness

824
00:35:36.960 --> 00:35:40.110
was that the windows would still break.

825
00:35:40.110 --> 00:35:43.440
They wouldn't shatter with small shards of glass

826
00:35:43.440 --> 00:35:46.170
and spread it all over the interior of the home.

827
00:35:46.170 --> 00:35:47.310
But they would still break.

828
00:35:47.310 --> 00:35:51.150
<v ->How many windows have been broken in...</v>

829
00:35:51.150 --> 00:35:53.640
<v ->There's a graphic that shows</v>

830
00:35:53.640 --> 00:35:55.500
that there's eight bays of window

831
00:35:55.500 --> 00:35:56.730
with broken windows.

832
00:35:56.730 --> 00:35:58.800
Some have been broken more than once.

833
00:35:58.800 --> 00:36:01.080
They were double-pane windows.

834
00:36:01.080 --> 00:36:03.270
But eight total windows.

835
00:36:03.270 --> 00:36:04.860
All of the siding.

836
00:36:04.860 --> 00:36:07.560
The spindle or the ballade on the deck

837
00:36:07.560 --> 00:36:11.070
and the deck barrier itself have a hole in it.

838
00:36:11.070 --> 00:36:15.210
And the entire siding on that side of the house is falling.

839
00:36:15.210 --> 00:36:16.290
<v Frank>But just again</v>
<v ->So then the--</v>

840
00:36:16.290 --> 00:36:17.790
<v Frank>I'm sorry, go ahead.</v>

841
00:36:17.790 --> 00:36:19.380
<v ->Let me finish on the emotional distress.</v>

842
00:36:19.380 --> 00:36:21.117
So there's $3.3 million

843
00:36:21.117 --> 00:36:22.425
in emotional distress or something like that?

844
00:36:22.425 --> 00:36:23.413
<v Galvin>3.4, your honor.</v>

845
00:36:23.413 --> 00:36:27.930
<v ->3.4, and there's the evidence on emotional distress</v>

846
00:36:27.930 --> 00:36:31.950
basically, it's not medical evidence,

847
00:36:31.950 --> 00:36:35.490
it's descriptions from your clients

848
00:36:35.490 --> 00:36:38.070
of how they feel in the house.

849
00:36:38.070 --> 00:36:38.903
<v ->Yes, your honor.</v>

850
00:36:38.903 --> 00:36:40.230
There was no medical evidence.

851
00:36:40.230 --> 00:36:41.250
I agree with that.

852
00:36:41.250 --> 00:36:44.603
<v ->Yet any quantitative evidence</v>

853
00:36:44.603 --> 00:36:48.153
that we could tie the $3.4 million to?

854
00:36:49.380 --> 00:36:51.750
<v ->I think that there was, your honor.</v>

855
00:36:51.750 --> 00:36:53.250
<v ->Well, what was it?</v>

856
00:36:53.250 --> 00:36:55.050
<v ->Well, your honor, my clients testified.</v>

857
00:36:55.050 --> 00:36:58.860
<v ->Right, but they didn't testify as to the amount.</v>

858
00:36:58.860 --> 00:37:01.260
<v ->There was no testimony as to one amount.</v>

859
00:37:01.260 --> 00:37:03.959
And I didn't argue an amount to the jury.

860
00:37:03.959 --> 00:37:08.340
<v ->So where does the support for this number come from?</v>

861
00:37:08.340 --> 00:37:10.320
<v ->From the cumulative evidence,</v>

862
00:37:10.320 --> 00:37:13.020
the testimony of my clients

863
00:37:13.020 --> 00:37:15.750
who explained what it was like to live in that house,

864
00:37:15.750 --> 00:37:17.570
what it was like to experience a ball--

865
00:37:17.570 --> 00:37:20.880
<v ->And what is the closest legal authority</v>

866
00:37:20.880 --> 00:37:24.330
that you might have to suggest that such testimony

867
00:37:24.330 --> 00:37:29.330
is sufficient to justify the $3.4 million award?

868
00:37:29.610 --> 00:37:32.460
<v ->Well, your honor, the instructions in this case</v>

869
00:37:32.460 --> 00:37:33.810
I think gave the jury--

870
00:37:33.810 --> 00:37:35.580
<v ->No, I'm talking about case law.</v>

871
00:37:35.580 --> 00:37:38.400
What is your legal authority for the proposition

872
00:37:38.400 --> 00:37:42.870
that a $3.4 million verdict for emotional distress

873
00:37:42.870 --> 00:37:45.540
can be supported by the type of evidence

874
00:37:45.540 --> 00:37:46.890
that you decided to put in?

875
00:37:48.450 --> 00:37:51.000
<v ->Your honor, I don't have a specific case.</v>

876
00:37:51.000 --> 00:37:52.650
<v ->And isn't that a problem for you?</v>

877
00:37:52.650 --> 00:37:53.880
<v ->I don't think it is, your honor.</v>

878
00:37:53.880 --> 00:37:55.230
<v Wendlandt>Okay, why not?</v>
<v ->Because I think</v>

879
00:37:55.230 --> 00:37:58.110
we had a jury here that got a chance

880
00:37:58.110 --> 00:38:00.570
and they were given the instructions to evaluate

881
00:38:00.570 --> 00:38:03.630
the impact of this activity on them

882
00:38:03.630 --> 00:38:06.090
for four and a half year period of time.

883
00:38:06.090 --> 00:38:11.090
They gave firsthand stories of how it impacted them.

884
00:38:11.970 --> 00:38:12.803
Mr. Tenczar--

885
00:38:12.803 --> 00:38:14.550
<v ->So what is your legal authority</v>

886
00:38:14.550 --> 00:38:16.950
for the proposition that the jury can,

887
00:38:16.950 --> 00:38:21.950
given this type of evidence that was put in,

888
00:38:22.110 --> 00:38:26.543
come up with a number that they think is worthy

889
00:38:27.930 --> 00:38:29.430
of the emotional distress?

890
00:38:29.430 --> 00:38:31.740
<v ->Well, I think the jury acted strictly</v>

891
00:38:31.740 --> 00:38:34.380
in accordance with the instructions that they were given.

892
00:38:34.380 --> 00:38:38.370
And the instructions asked them to use their experience,

893
00:38:38.370 --> 00:38:43.290
their judgment, to avoid prejudice, to avoid considering--

894
00:38:43.290 --> 00:38:44.123
<v ->Mr. Galvin,</v>

895
00:38:44.123 --> 00:38:46.500
are you saying that this is not a negligent infliction

896
00:38:46.500 --> 00:38:48.990
of emotional distress, it's a trespass.

897
00:38:48.990 --> 00:38:51.420
And are you saying that with a trespass

898
00:38:51.420 --> 00:38:53.730
that you don't need a physical manifestation?

899
00:38:53.730 --> 00:38:54.563
<v Galvin>Yes, your honor.</v>

900
00:38:54.563 --> 00:38:57.450
<v ->And is there a case that supports that?</v>

901
00:38:57.450 --> 00:38:59.460
<v ->I haven't found a trespass case</v>

902
00:38:59.460 --> 00:39:01.680
other than the FENTON v. QUABOAG case

903
00:39:01.680 --> 00:39:04.500
that allows an award for mental anguish,

904
00:39:04.500 --> 00:39:06.570
distress and anxiety.

905
00:39:06.570 --> 00:39:09.510
That's the only trespass case that I found.

906
00:39:09.510 --> 00:39:14.510
But I did lump together my intentional tort of trespass

907
00:39:14.970 --> 00:39:17.280
with intentional infliction of emotional distress

908
00:39:17.280 --> 00:39:19.770
because I figured that was the closest

909
00:39:19.770 --> 00:39:21.900
akin intentional tort.

910
00:39:21.900 --> 00:39:23.910
And I think the case law is very clear

911
00:39:23.910 --> 00:39:25.890
in the case of that intentional tort,

912
00:39:25.890 --> 00:39:29.490
that the physical manifestations

913
00:39:29.490 --> 00:39:33.810
that are required resulting from objective symptomology,

914
00:39:33.810 --> 00:39:36.810
I think is the negligent inflection standard don't apply.

915
00:39:36.810 --> 00:39:38.310
And I think that's the right standard.

916
00:39:38.310 --> 00:39:41.250
And frankly, I think that the--

917
00:39:41.250 --> 00:39:43.860
<v ->When you argued, did you give them...</v>

918
00:39:43.860 --> 00:39:45.270
I haven't read the closing yet.

919
00:39:45.270 --> 00:39:47.010
<v Galvin>Yep.</v>
<v ->Did you give them</v>

920
00:39:47.010 --> 00:39:49.953
any kind of measurement devices?

921
00:39:51.810 --> 00:39:54.233
I'm just trying to understand how they came up with 3.4.

922
00:39:55.692 --> 00:39:56.820
<v ->Did you?</v>
<v ->I asked them to consider</v>

923
00:39:56.820 --> 00:39:59.493
the impact of what had been going on.

924
00:40:00.330 --> 00:40:03.000
<v ->You didn't match it to numbers for different--</v>

925
00:40:03.000 --> 00:40:05.610
<v ->I purposefully did not do that, your honor.</v>

926
00:40:05.610 --> 00:40:09.900
I felt that the jury who listened to the evidence

927
00:40:09.900 --> 00:40:13.440
should decide, first of all,

928
00:40:13.440 --> 00:40:15.810
whether they believed my clients, okay?

929
00:40:15.810 --> 00:40:17.730
I think my clients were authentic.

930
00:40:17.730 --> 00:40:19.650
I don't think they went out and--

931
00:40:19.650 --> 00:40:20.880
<v ->Well, credibility calls</v>

932
00:40:20.880 --> 00:40:23.280
are something that juries don't necessarily do.

933
00:40:23.280 --> 00:40:27.330
But I'm, and I think Justice Kafker

934
00:40:27.330 --> 00:40:32.040
are more concerned about where the jury

935
00:40:32.040 --> 00:40:34.830
was supposed to rest its decision

936
00:40:34.830 --> 00:40:37.263
to award your client $3.4 million.

937
00:40:38.790 --> 00:40:40.557
<v ->Well, I think--</v>

938
00:40:40.557 --> 00:40:44.730
<v ->And it's not something that one inherently knows from.</v>

939
00:40:44.730 --> 00:40:45.930
<v ->I agree with you, your honor.</v>

940
00:40:45.930 --> 00:40:47.010
I don't think it is something

941
00:40:47.010 --> 00:40:48.660
that somebody inherently knows.

942
00:40:48.660 --> 00:40:50.850
I think it's something that you have to experience.

943
00:40:50.850 --> 00:40:52.230
You have to listen to.

944
00:40:52.230 --> 00:40:56.010
You have to evaluate this sincerity, the authenticity,

945
00:40:56.010 --> 00:40:57.990
the nature of the claims

946
00:40:57.990 --> 00:41:01.410
that were testified to by my clients and the impacts.

947
00:41:01.410 --> 00:41:05.280
And your honors for the four and a half years

948
00:41:05.280 --> 00:41:07.740
that this problem occurred at their property.

949
00:41:07.740 --> 00:41:10.230
There wasn't a moment during the day,

950
00:41:10.230 --> 00:41:12.960
during the golf season when they knew a golf ball

951
00:41:12.960 --> 00:41:15.900
would not come into their house through their windows,

952
00:41:15.900 --> 00:41:18.510
spread glass across their floor or injure them.

953
00:41:18.510 --> 00:41:20.970
<v ->And your position was that, that was a surprise</v>

954
00:41:20.970 --> 00:41:23.400
having chosen to live next to a golf course?

955
00:41:23.400 --> 00:41:24.233
<v ->Yes, your honor.</v>

956
00:41:24.233 --> 00:41:29.160
Because of the factual distance between the golf course

957
00:41:29.160 --> 00:41:31.920
and the improved area, which was significant.

958
00:41:31.920 --> 00:41:34.440
It wasn't right up next to the fairway here.

959
00:41:34.440 --> 00:41:37.410
There was 200 feet and a tree buffer.

960
00:41:37.410 --> 00:41:40.350
And furthermore, your honor,

961
00:41:40.350 --> 00:41:44.070
my client, Mr. Tenczar testified that he knew,

962
00:41:44.070 --> 00:41:47.460
and by the way, there was an 18 foot retaining wall

963
00:41:47.460 --> 00:41:49.350
with a chain link fence on top,

964
00:41:49.350 --> 00:41:51.900
which actually gave the impression

965
00:41:51.900 --> 00:41:53.910
that there was a distinction between

966
00:41:53.910 --> 00:41:56.070
golf course and property.

967
00:41:56.070 --> 00:42:00.270
And I can't imagine anyone buying a house

968
00:42:00.270 --> 00:42:03.300
which they knew would be constantly destroyed

969
00:42:03.300 --> 00:42:06.930
or become unlivable because of this type of a condition.

970
00:42:06.930 --> 00:42:09.903
And if it was, it wasn't the De Sarno case.

971
00:42:10.800 --> 00:42:12.960
That should have been clearly expressed

972
00:42:12.960 --> 00:42:14.553
in the documents and it wasn't.

973
00:42:15.780 --> 00:42:16.920
In the De Sarno case,

974
00:42:16.920 --> 00:42:21.540
there was the additional exoneration or exculpatory clause

975
00:42:21.540 --> 00:42:23.190
that was in the restrictions.

976
00:42:23.190 --> 00:42:26.880
The homeowners could not sue the golf course owner.

977
00:42:26.880 --> 00:42:30.360
Had those types of documents existed,

978
00:42:30.360 --> 00:42:33.420
it's very likely that the result would've been different

979
00:42:33.420 --> 00:42:34.380
and the Tenczar's.

980
00:42:34.380 --> 00:42:38.460
<v ->Well, not withstanding accounting for interest,</v>

981
00:42:38.460 --> 00:42:40.800
accounting for inflation, rather.

982
00:42:40.800 --> 00:42:41.670
In the Fenton case,

983
00:42:41.670 --> 00:42:45.090
they only got $2,650 in emotional distress.

984
00:42:45.090 --> 00:42:47.100
This is really different.

985
00:42:47.100 --> 00:42:49.890
<v ->Regretfully, your honor, I'm not a mathematician.</v>

986
00:42:49.890 --> 00:42:53.473
So I thought about the present value of what that was today.

987
00:42:53.473 --> 00:42:56.320
And honestly I don't know if you took the--

988
00:42:56.320 --> 00:42:57.450
<v Frank>I don't think its $3.4 million.</v>

989
00:42:57.450 --> 00:42:59.820
<v ->It's not $3.4 million.</v>

990
00:42:59.820 --> 00:43:02.230
Okay, I can see that.

991
00:43:02.230 --> 00:43:04.380
<v ->Wait, I take it you did a rough calculation.</v>

992
00:43:04.380 --> 00:43:08.100
What is the rough calculation of 2,500 present value?

993
00:43:08.100 --> 00:43:09.540
<v ->Honestly, that's why I said</v>

994
00:43:09.540 --> 00:43:11.160
I'm not a mathematician, your honor.

995
00:43:11.160 --> 00:43:12.810
I couldn't do the math on that.

996
00:43:12.810 --> 00:43:16.530
But I do think that the jury listened to the evidence.

997
00:43:16.530 --> 00:43:19.680
I think they based it because we also had Judge White

998
00:43:19.680 --> 00:43:21.840
who listened to all the same evidence.

999
00:43:21.840 --> 00:43:23.367
And he considered that.

1000
00:43:23.367 --> 00:43:26.820
And if he felt that it was greatly disproportionate

1001
00:43:26.820 --> 00:43:30.300
to the evidence, he could have overturned it.

1002
00:43:30.300 --> 00:43:31.590
And he didn't.

1003
00:43:31.590 --> 00:43:33.900
And he heard all the same arguments that you've heard.

1004
00:43:33.900 --> 00:43:35.370
Read all the same cases.

1005
00:43:35.370 --> 00:43:37.053
And he saw the witnesses.

1006
00:43:38.010 --> 00:43:39.733
Thank you, your honor.
<v Wendlandt>Okay.</v>