Wildlands Trust of Southeastern Massachusetts, Inc., et al. v. Cedar Hill Retreat Center, Inc., et al. (Lawyers Weekly No. 09-034-17)

On July 13, 2017, the parties were before this Court on the Plaintiffs’ Motion to Compel Discovery and the Defendants’ Motion for a Protective Order. Defendants argued that the discovery sought was beyond the scope of what was at issue in this lawsuit and that the plaintiffs’ requests were unduly burdensome and amounted to harassment. This Court denied the motion from the bench, with only a brief explanation of its reasons by way of a margin note. Plaintiffs now move to reconsider and/or clarify this Court’s earlier ruling.
Although initially skeptical of this request, this Court is now convinced that clarification is indeed required. Although plaintiffs are not entitled to the broad discovery they had originally sought (which was unnecessary and unduly burdensome), this Court was wrong to deny any discovery sought by their Motion to Compel. It is also apparent that the parties may have interpreted that earlier order almost as if it were a dispositive motion and that the discovery ruling meant that certain parts of plaintiffs’ Complaint were not properly before this Court. This Court did not anticipate or intend that and now wishes to correct that misimpression. The
Motion to Reconsider is therefore ALLOWED, with the following offered by way of explanation.
This is an action seeking to enforce a Conservation Restriction (CR) imposed on real property located in Duxbury, Massachusetts (the Premises). The parties to the CR are the plaintiffs Wildlands Trust of Southeastern Massachusetts, Inc. (Wildlands Trust) and the defendant Cedar Hill Retreat Center Inc., (Cedar Hill). In its Amended Complaint, 1 Wildlands Trust alleges that Cedar Hill is engaging in “commercial revenue generating activities…as well as other activities that are violative of the Conservation Restriction.” ¶ 7 of Amended Complaint; see also ¶48-50. In its Motion for a Protective Order (and again in opposing the Motion to Reconsider), Cedar Hill took the position that Wildlands Trust’s ability to complain of Cedar Hill’s activities on the Premises is far narrower – that is, that it is limited to a single event in September 8, 2012 when there was a wedding reception on the Premises. This did not involve a complaint that the Premises were being used to generate revenue.
In denying the plaintiffs’ Motion to Compel, this Court was of the view that a single violation was enough to entitle the plaintiffs to the equitable relief they sought, so that discovery that went beyond the September 8, 2012 incident was unnecessary. Because that violation was more narrowly drawn, however, the relief would not extend to revenue generating activities even if plaintiffs could prove that such activity violated the CR. Thus, to proceed simply on the basis of the September 2012 violation would not settle the dispute among the parties.
Cedar Hill argues that there is a legal impediment to Wildlands Trust seeking broader relief. It relies on Section IVA and IVF of the CR. Those provisions require that Wildlands Trust give notice to Cedar Hill of any claimed violation and that before resorting to court to seek
1 Although there is currently pending a motion to dismiss some counts in this Amended Complaint, the claim alleging breach of the Conservation Restriction is not the target.
equitable relief, the parties must mediate the dispute. Following the September 8, 2012 incident, Wildland notified Cedar Hill of the alleged violation, and (as required by the CR) mediation of the dispute began and continued over the next couple of years. During that time period, additional notices were sent by plaintiffs’ counsel that did raise complaints about the Premises being used for revenue generating activities, thus going beyond that which was at issue in the September 2012 event. Throughout this time period, a mediator was available to the parties, but his efforts were unsuccessful. On February 26, 2016, Wildlands Trust counsel sent a letter to counsel for Cedar Hill that cited the failed mediation and outlined the various violations that it alleges had taken place on the Property. See Exhibit F to Amended Complaint. Cedar Hill takes the position that only the September 8, 2012 is properly before the Court, since the other alleged violations have not been subject to mediation. This Court disagrees.
Clearly, the defendants were put on notice of the other activities that Wildlands Trust regards as a violation, including those activities that generated revenues. This Court understands that, strictly speaking, each and every event did not generate a notice and a separate and distinct mediation. However, activities that post-dated the original notice in 2012 occurred at a time when mediation was ongoing and was the subject of correspondence between the parties and their lawyers. The purpose of the mediation was to encourage the parties to try first to resolve their differences among themselves before they resorted to litigation. That purpose has been fulfilled.
Returning then to the discovery dispute, this Court now agrees with Wildlands Trust that it is entitled to find out more about what happened on the Premises, but also concludes that such discovery should be strictly circumscribed. Events occurring before September 8, 2012 would not seem to be particularly relevant nor could they be the basis for equitable relief, since the
mediation triggered by the September 2012 event had not yet begun. Apparently there have been over 300 events on the premises since 2012. The cost of third party discovery, including depositions of those involved in those events, would be quite expensive, harassing and in this Court’s view, entirely unnecessary, since there are other more efficient ways of determining the type of activity that occurred. Moreover, plaintiffs will be entitled to equitable relief provided that they show that the activity violates the terms of the CR; that there were a dozen violations of a similar nature or a hundred of them would seem to be largely irrelevant.
At the end of the hearing on the Motion to Reconsider, plaintiffs’ counsel made a proposal that in this Court’s view makes sense and that it now adopts: Cedar Hill shall produce for deposition a 30(b)(6) witness who has most familiarity with activities at the Premises since September 2012. This Court imposes an eight hour time limit on this deposition. In addition, Cedar Hill should be required to produce the spreadsheet of activities that it has maintained in the ordinary course of its business; although a partial spreadsheet has been produced, it was apparently incomplete and not a business record.
This Court does not envision any discovery beyond that. In particular, Wildlands Trust may not use contact information related to users of the Premises to notice any individual’s deposition without leave of court. This Court also does not see the need at this point for any third party discovery. As already stated, the number of violations is far less important than the nature of the activity conducted at the Premises. Plaintiffs should proceed with discovery with that in mind.
_______________________________ Janet L. Sanders
Justice of the Superior Court
Dated: October 16, 2017

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