COMMONWEALTH OF MASSACHUSETTS v. JUDITH L. COMLEY, Trustee, & Others.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-1023

COMMONWEALTH OF MASSACHUSETTS

vs.

JUDITH L. COMLEY, trustee,1 & others.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This case involves a boundary and easement dispute between

the Commonwealth, through its Department of Fish and Game, and

the defendants, over parcels of land in the William Forward

Wildlife Management Area. In April 2019, the Commonwealth filed

a complaint in the Land Court seeking declaratory and injunctive

relief against the defendants in connection with access and

boundary disputes. The defendants filed an answer, asserting

various affirmative defenses.

The judge set an initial discovery deadline of February 3,

2020, which was continued multiple times to July 22, 2021. The

judge denied the defendants' final motion to extend discovery

1 Of the Kittery Avenue Realty Trust.
2 Seaview Retreat, Inc.; Stephen B. Comley and Judith L. Comley,
as trustees of the Seaview Real Estate Trust.
(filed on July 22, 2021) and scheduled deadlines for the

Commonwealth to file its summary judgment motion (August 2021

order). In the August 2021 order, the judge noted that the

defendants could use the approximately four months between the

date of the order and the hearing on the motion for summary

judgment to "undertake whatever title work [counsel] deems

necessary." Claiming that the defendants' discovery responses

were inadequate, the Commonwealth filed a motion to compel and

limit the defendants' introduction of certain evidence pursuant

to Mass. R. Civ. P. 37 (b), as amended, 423 Mass. 1406 (1996).

The defendants opposed the motion and filed a motion to

reconsider the August 2021 order (which was denied).3 A single

justice of this court denied the defendants' petition filed

pursuant to G. L. c. 231, § 118, first par.

The Commonwealth filed its motion for summary judgment.

The defendants failed to file a written opposition to the

motion, despite an email message inquiry from the clerk noting

that the opposition was overdue. Instead of filing an

opposition to the motion for summary judgment, counsel for the

3 The judge denied the motion for reconsideration of the August
2021 order and allowed the Commonwealth's motion to compel in
part, denied it in part, and denied it without prejudice in
part. Specifically, the judge limited the defendants to "the
exact responses in their interrogatories in defense of the
claims." The judge denied the Commonwealth's request to
prohibit the defendants from offering certain evidence and
allowed the defendants to offer "any non-title documents."

2
defendants filed a motion to stay hearing on the motion, at 3:49

P.M. the day before the hearing (which had been set at the

August 2021 status conference); the judge denied the motion

concluding that counsel for the defendants claim of lack of

notice was "unsupportable." One hour before the hearing on the

motion, counsel for the defendants filed a "response to the

court's order," which the judge treated as a motion to continue

and denied. At the hearing, counsel for the defendants failed

to address the issues set forth in the Commonwealth's motion for

summary judgment. Rather, counsel tried to raise discovery

issues which had long been resolved and which the judge declined

to entertain anew. The hearing concluded with the judge

informing counsel that he "could talk all [he wanted], within

reason, about the merits of the Commonwealth's motion." When

counsel responded that he was "building a record for appeal,"

the judge noted that there would be no "further discussion of

matters that [she had] already ruled on," and closed the

hearing.

In a thoughtful memorandum of decision and order, the judge

allowed the Commonwealth's motion for summary judgment.4

4 The judge ruled that the Commonwealth's statement of material
facts "[were] undisputed or [were] deemed admitted," because the
defendants did not file a response. In broad strokes, the judge
held that a 1945 taking by the Federal government extinguished
the title rights of the owners of certain parcels and resulted

3
Judgment entered in the Commonwealth's favor on all counts of

its complaint. The defendants filed a motion to vacate the

judgment and a motion to recuse, which the judge denied. This

appeal followed.

Discussion. 1. Rulings on motions to extend discovery,

stay and recuse. On appeal, the defendants contend that they

were denied due process of law "throughout the within matter and

more especially during the hearing." They take issue with the

judge's "conduct and decision," but fail to address the basis

for the judgment. The defendants' brief contains no citations

to the record and, as to their recusal argument only, contains

minimal citation to authority.5 See Mass. R. A. P. 16 (a) (9)

(A), as appearing in 481 Mass. 1628 (2019) (appellant's brief

must contain "citations to the authorities and parts of the

record on which the appellant relies"). See also Zora v. State

Ethics Comm'n, 415 Mass. 640, 642 n.3 (1993) ("bald assertions

of error, lacking legal argument and authority," do not rise to

in their predecessors in title conveying real estate rights to
them they did not own, therefore, title to these properties
rests with the Commonwealth.
5 The notice of appeal only relates to the entry of summary

judgment and does not reference the motion to vacate or the
motion to recuse. Accordingly, the latter issues are not before
us. See Mass. R. A. P. 3 (a) (1), as appearing in 481 Mass.
1603 (2019); Mass. R. A. P. 3 (c) (1) (A) (ii), as appearing in
491 Mass. 1601 (2023).

4
level of appellate argument). Accordingly, we need not consider

these claims.

Even if we were to consider these issues, the defendants

fare no better. The initial discovery deadline was extended six

times. After two years, the defendants provided deficient

responses on the last day of discovery, and they did not produce

a representative for a deposition noticed by the Commonwealth.

The defendants also complain that an entity from which they

sought information was closed throughout the period of

discovery, however, this was not true.6 Moreover, the

Commonwealth provided documents from this entity to the

defendants, which they did not utilize or reference during the

entirety of the litigation. On this record, the judge did not

abuse her discretion in denying the defendants' motion to extend

discovery for a seventh time. See Judge Rotenberg Educ. Ctr.,

Inc. v. Commissioner of Dep't of Mental Retardation (No. 1), 424

Mass. 430, 461-462, S.C., 424 Mass. 471, 424 Mass. 473, and 424

Mass. 476 (1997), 492 Mass. 772 (2023) (denial of motion to

extend discovery to allow additional deposition within judge's

discretion).

6 The entity was open during the discovery period, prior to its
closure due to the COVID-19 pandemic, and by August 2021, was
open by appointment. Indeed, the initial discovery deadline was
February 3, 2020, at least one month before COVID-19 related
closures.

5
For similar reasons, the judge also did not abuse her

discretion in denying the defendants' last-minute motion to stay

the summary judgment hearing, as the basis for that motion was

the defendants' request to extend discovery. See Beninati v.

Beninati, 18 Mass. App. Ct. 529, 534-535 (1984) (where court

gave notice trial would take place in three months, no abuse of

discretion to proceed where counsel objected on scheduled trial

day). Nor did the judge abuse her discretion in denying the

defendants' post judgment motion for recusal. Simply put, a

review of the transcript of the hearing does not support the

defendants' description of the judge's actions. It demonstrates

that, despite repeated interruptions by counsel, the judge

provided him multiple opportunities to address the merits of the

summary judgment motion, but he failed to do so, instead

insisting on rehashing prior discovery rulings. The transcript

does not support the claim of judicial bias or prejudice, and

accordingly, recusal was not warranted. See Erickson v.

Commonwealth, 462 Mass. 1006, 1007 (2012) (no showing judge "was

biased . . . or that [her] ruling was 'influenced by any

considerations other than the law'" [citation omitted]).

2. Summary judgment motion. Once again, the defendants'

brief fails to meaningfully address the merits of their claims,

and thus their claims "do not rise to [the] level of appellate

argument and need not be considered." Halstrom v. Dube, 481

6
Mass. 480, 483 n.8 (2019). Furthermore, the defendants failed

to challenge the Commonwealth's motion for summary judgment in

writing or during the hearing. The Commonwealth filed its

motion and related materials on February 17, 2022. Following

that filing, the defendants filed a motion to stay on March 29,

2022, and filed a "response" to the judge's denial of that

motion on March 30, 2022. A review of the docket confirms that

the defendants failed to file any written opposition to the

Commonwealth's motion. They also failed to file a Mass. R. Civ.

P. 56 (f), 365 Mass. 824 (1974), affidavit explaining why they

could not oppose the motion. See Aronson v. Commonwealth, 401

Mass. 244, 254-255 (1987). This failure is fatal to the

defendants' claim. See Baker v. Monga, 32 Mass. App. Ct. 450,

453 (1992). A similar review of the transcript supports the

conclusion that the defendants did not oppose the motion,

electing instead to revisit prior discovery-related rulings.

With no opposition, the facts as alleged by the Commonwealth

were undisputed, and applying the law to those facts, we

conclude that the motion for summary judgment was properly

granted. See Costa v. Fall River Hous. Auth., 453 Mass. 614,

619 (2009) (decision "will be upheld if the trial judge ruled on

7
undisputed material facts and [her] ruling was correct as a

matter of law" [citation omitted]).7

Judgment affirmed.

By the Court (Meade, Blake &
Desmond, JJ.8),

Assistant Clerk

Entered: February 15, 2024.

7 "To the extent that we have not specifically addressed other
points made . . . in [the defendants'] brief, they 'have not
been overlooked. We find nothing in them that requires
discussion.'" Commonwealth v. Brown, 479 Mass. 163, 168 n.3
(2018), quoting Commonwealth v. Domanski, 332 Mass. 66, 78
(1954).
8 The panelists are listed in order of seniority.

8