Slesar v. Goldman, 21-P-628

CourtAppeals Court of Massachusetts
PartiesSTEPHAN J. SLESAR, JR., & another [1] v. DAVID GOLDMAN & another. [2]
Docket Number21-P-628
Decision Date17 June 2022

STEPHAN J. SLESAR, JR., & another [1]
v.

DAVID GOLDMAN & another.
[2]

No. 21-P-628

Appeals Court of Massachusetts

June 17, 2022


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).

MEMORANDUM AND ORDER PURSUANT TO RULE 2 3.0

This case stems from a dispute between Medfield neighbors: the plaintiffs, Stephan J. Slesar, Jr., and Jennifer L. Slesar (the Slesars) and the defendants, David Goldman and Brenda Goldman (the Goldmans).[3] Beginning in 2017, the Goldmans cut and removed a number of trees from the Slesars' property; erected a series of fences, tarps, and other screens near, and sometimes over, the property line to shield their activity; and engaged in erratic and loud behavior in a manner to disturb the Slesars' enjoyment of their property. The Slesars filed suit, alleging common law trespass, tree cutting in violation of G. L. c. 242, § 7,

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common law nuisance, private nuisance by spite fence in violation of G. L. c. 49, § 21, intentional infliction of emotional distress, and civil contempt. Following a jury-waived trial, a Superior Court judge entered judgment in favor of the Slesars on all counts except intentional infliction of emotional distress, and awarded damages. On appeal, the Goldmans primarily challenge as unreasonable the judge's award of damages on the tree cutting claim and the common law nuisance claim. The Goldmans also contend that the judge abused her discretion in declining to perform a view of the properties, and in taking judicial notice of David's criminal arrest and subsequent conviction. We affirm.

Background.

We summarize the facts found by the judge following the jury-waived trial, supplemented by undisputed facts in the record. See Yankee Microwave, Inc. v. Petricca Communications Sys., Inc., 53 Mass.App.Ct. 497, 499 (2002). The Slesars purchased their two-acre property at 29 Noon Hill Road (Slesar property) in June 2003, and constructed a new house on the property between 2007 and 2008 for them and their two young children to reside in. The Goldmans purchased their one and one-half acre property at 25 Noon Hill Road (Goldman property) in October 2010.

By all accounts, the Noon Hill Road area is a "nature lover's wonderland," which attracted both parties. It is

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heavily vegetated, with hiking trails and wildlife. Noon Hill Road itself is a dirt road, with just five houses, all on the right side of the street. The left side of the street is public preservation land. The Slesar property and the Goldman property are adjacent to one another and are separated by a 370-foot lot line running from the front of both properties on Noon Hill Road to the rear of both properties. Behind both properties are protected wetlands.

Noon Hill Road does not have streetlamps and, unless lit by property owners, is dark at night. Accordingly, when the Slesars built their home in 2007 and 2008, they added lantern post lights on each side of the gravel landing at the top of their driveway bordering the Goldman property near Noon Hill Road, and four additional lantern post lights along their driveway leading to their house. In the spring of 2014, the Goldmans installed 160 feet of six-foot-high wooden fencing around their property, with approximately one hundred feet running along the front of the property bordering Noon Hill Road, and approximately sixty feet running along the side of the property bordering the Slesar property. From the time the Goldmans moved in until the summer of 2017, the Goldmans and the Slesars had little, if any, interaction with each other. That, however, changed in July 2017, when the events giving rise to this lawsuit ensued.

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On July 28, 2017, upon arriving home from a trip, the Slesars discovered the Goldmans working in an area near the front of the property line close to Noon Hill Road. Specifically, the Slesars were shocked to find that trees and ground cover, which acted as a visual barrier between the two properties, had been removed. Photographs taken from this date were introduced in evidence and show freshly cut tree stumps in the area where the Goldmans were found working. Some of the stumps appear to have been cleanly sawed off, while other, larger stumps appear to have been axed. The judge found that the Goldmans cut trees from this area, and that some of the trees were cut from the Slesar property, but that it was not possible to determine the exact number of trees cut given the time and manner of removal.

On this July 2017 date, Jennifer approached the Goldmans to ask why they were clearing the area, and David, acting "jumpy" and "unapproachable," responded that he was on his property. Jennifer expressed her disagreement, and within a few days, the Slesars found a threatening note in their mailbox from the Goldmans that stated, "Hey A-holes[, ] Get ready to move your electric box!" Attached to the note was an "As-built site plan" for the Goldman property. In the following days, the Goldmans continued to clear the same area near the property line. By August 11, 2017, the Goldmans erected a mesh deer fence in that

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same area facing the Slesar property, and through the fence, exposed tree stumps could be seen marked with an orange substance. At some point, the Goldmans also planted evergreen trees directly behind the mesh fence and in front of the wood fence they had installed in 2014. The judge found that portions of the mesh fence, and some of the evergreen trees planted behind it, were on the Slesar property.

On August 23, 2017, the Medfield conservation commission sent the Goldmans a cease and desist letter, stating that the commission was notified on August 22, 2017, of possible work being performed within the wetlands jurisdiction at the Goldman property. The letter listed several violations observed from the public way near the home, and demanded that the Goldmans cease and desist all work on the property. On September 21, 2017, the commission issued an enforcement order to the Goldmans for the violations enumerated in the August 2017 letter. The Goldmans believed up until the time of trial that the Slesars reported them to the commission, although the Slesars repeatedly denied doing so.

Thereafter, the Goldmans' activity on the property line increased. The Goldmans began using tarps and other assorted materials to shield their clearing activity from public view, sometimes conducting their work in the cover of night with the use of lanterns. Notwithstanding the enforcement order, the

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Goldmans continued to clear ground vegetation near the Slesar-Goldman property line located close to Noon Hill Road, and also did so on the Slesar property near the Slesars' screened-in porch. To further conceal their activity, the Goldmans erected colorful tarps on top of the mesh deer fencing, and most notably, by the end of September 2017, the Goldmans added what they described as "privacy panels" above some of the wooden fencing. The approximately four to eight-feet black fabric panels faced the Slesar property and increased the fence's height to approximately twelve feet tall.

At the end of September 2017, by chance, Jennifer and Brenda encountered one another near their property lines and had a verbal altercation. Jennifer recorded the interaction. In the recording, Brenda could be heard shouting obscenities at Jennifer and blaming the Slesars for "light pollution," a seeming criticism of the Slesars' light posts, while Jennifer attempted to discuss the issues they were having. Specifically, Brenda referenced the multiple layers of tarps and privacy screens and stated, "Why do you think we are doing this? You put two and two together you dumb bitch. You like it? There's more going up." From this recording, as well as other evidence, the judge concluded that the Goldmans erected the various tarps and screens with the "primary intention of annoying and

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irritating the Slesars and interfering with their use and enjoyment of their property."

In October 2017, the police became involved when Jennifer called them to report various disturbances at the Goldmans' home, including the Goldmans yelling loudly at each other and at the Slesars. Jennifer reported also that David hid behind trees and followed the Slesars' children as they walked along Noon Hill Road. After a December 2017 incident was referenced several times at trial, the judge took judicial notice of the fact that, in mid-December 2017, David was arrested and charged with assault and battery on a family or household member (Brenda) and strangulation or suffocation, and that he was held as a dangerous person pursuant to G. L. c. 276, § 58A, and seen in a medical unit. The judge further took notice that the strangulation charge was dismissed, and that David pleaded guilty to the assault and battery charge in September 2018.

The next recorded interaction between Brenda and Jennifer took place on May 3, 2018, when Jennifer asked Brenda to remove the mesh fencing, which, as noted, was partially on the Slesar property, and Brenda erupted. Brenda shouted obscenities at Jennifer and blamed her for David's hospitalization, apparently referencing the period in December 2017 when David was seen in the medical unit. The judge credited the Slesars' testimony that the recordings of Brenda's...

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