NewburyportNews.com, Newburyport, MA

July 10, 2013

Conomo plaintiffs cannot depose town lawyers

By James Niedzinski
Staff Writer

---- — ESSEX — Two lawyers central to the fight between residents and town over Conomo bridge leases will not be deposed and forced to produce documents in the case.

The court denied the motion by plaintiffs suing the town, alleging unreasonable bridge lease rates, to depose two Kopelman and Paige lawyers representing the town and to force the production of documents related to the case.

The motion and decision is related to a suit filed in November 2012 by some Conomo Point residents against the town, alleging the second-year bridge lease rates are being increased far too much. The lease rates were determined by Mark Tyburski of Tyburski Appraisal Corp. on behalf of the town; the plaintiffs assert that Tyburski had improperly appraised the properties and the appraisals do not represent fair market value.

Another suit, filed in the summer of 2012 by Conomo Point residents, asserts the residents themselves own the houses they live in, not the town.

The Boston-based law firm Todd and Weld LLP represents the different plaintiffs in both cases.

The bridge lease suit, Walker et. al. vs. Town of Essex, and the home ownership suit, Pratt et. al. vs. Town of Essex, have been consolidated, as fair market value and bridge lease rates will be affected by the Pratt case.

The plaintiffs in combined case filed a motion to depose Gregg Corbo and Katherine Klein, both of Kopelman and Paige, and to have the town’s law firm produce documents related to the case. The motion was ultimately denied late last week, following lengthy opposition by Kopelman and Paige, according to court documents.

The court will only try three issues in the Pratt case: if there was a general agreement that the tenants owned the houses; if not, were any structures affixed on the land; and, if not, what was the understanding between the tenants and the town.

In December, the plaintiffs’ motion for a temporary court order that would have made a preliminary ruling on the Walker case was also denied.

Those opposing the bridge year lease rates have received a second opinion from an appraiser they hired.

“In view of conflicting evidence the court cannot rule out the possibility that plaintiffs will not prevail on the merits of their claim,” a case summary reads. “However, the standard for issuing a preliminary injection requires that the plaintiff establish a probability of success on the merit, and not merely a possibility of prevailing. Plaintiffs have not met that burden.”

The case summary also states a stipulation of settlement in Land Court in the 1990s did not establish who owned the houses, although both the residents and town agreed the residents owned the houses for the 20-year lease.

The stipulation does not “bind the town eternally,” but it may be used as evidence at the upcoming trial, the case summary states.

Furthermore, the plaintiffs’ lawyer, Christopher Weld, states Kopelman and Paige has been trying to drag out the legal process rather than bring it to a close.

In a letter dated June 28th to Essex Superior Court, Weld writes the town opted to add a counterclaim.

“This case is scheduled for trial in six (6) weeks,” he wrote. “The scope of the plaintiffs’ complaint and the relief sought have been known to the town for over a year.”

Weld also writes that the trial date is critical to the plaintiffs because of their financial situations.

“Essentially, the town seeks to bring a new lawsuit with new claims via the counterclaim vehicle without allowing for proper discovery or the ripeness of those claims for adjudication,” the letter reads.

Two non-jury trials are scheduled in August and September.

James Niedzinski can be reached at 978-283-7000 x 3455 orjniedzinski@gloucestertimes.com.