Feoffees Motion to Strike Portion of Appeal

In this motion the Feoffees are back asking the Probate Court to deny our appeal of the judgment.  There is a hearing currently scheduled for April 27th at 9AM in Salem.  This latest move seems unlikely to have any impact on the trajectory of our appeal which has still yet to be heard by a higher court.

Probate – Feoffees – 120417 – Motion to Strike Appeal

Was settlement the only way to extract the Feoffees?

At the now infamous January 5, 2012 School Committee meeting, Chairman Loeb made two main representations to the public.

The first was that the Probate Court judge had made clear to School Committee counsel that she saw no reason why she shouldn’t order a sale, that the only question in her mind was the price and that as a result she pressured the parties to have discussions about settling the case. This public representation, which the citizen interveners relied upon as fact when spending their own personal resources filing their appeal, was later refuted by the School Committee’s own counsel at the appeal hearing.

The second representation was that the judge felt that if there was a sale there was no reason to change governance.  This was reported to have been a determining factor in at least Laura Dietz’s decision to support the sale.  This leads one to wonder if the School Committee’s counsel had provided the School Committee with this motion, filed by the Feoffees in Probate Court, which states in part “in the event this court grants the relief sought by the Plaintiffs in their complaint and permits the sale of Little Neck…the Plaintiffs will have no objection to the endowment fund, to be created from the sales proceeds, being managed by persons other than the present life feoffees.”  In other words, the risk of an ordered sale leading to a cash endowment being managed by the current feoffees (an admittedly scary prospect) was not real.

Which leaves us eager to hear from the Chairman Loeb and members Dietz, O’Flynn & Gresh what the true urgency really was for settling the case and selling Little Neck before all the evidence was heard.  Maybe we will hear at Town Meeting.

Latest Trust Administration Order

This is apparently the most recent version of the Trust Administration Order, the document that would control the operation of the Feoffees going forward if the Probate Court Judgment is upheld.

Probate – SC – 120323 – Trust Administration Order

It makes clearer (in 5c & d) that the $2.4M in back rent will not be considered part of the Trust assets for purposes of defining what used to be called the “Historical Value” and is now called the “Principal” of the Trust.  Put another way, as far as future generations are concerned, this is the same deal that the School Committee turned down in October of 2010.  Future income can therefore be fairly calculated on the same net of approximately $22M that we have used in our financial analysis all along, and that was used by the School Committee in this part of their Summary Judgment Opposition to calculate an annual return of $110,000.  We believe this was overly pessimistic and that the number will likely be more like $350,000, but in any case there is no reason to believe that the income will be sufficient to offset the additional costs of a year-round Little Neck, let alone fund any “enhancements” to the schools.


Ken Swenson’s Question and Loeb Deposition Extract

Unfortunately we have only obtained a section of the deposition of Jeff Loeb taken by the Feoffees.  It includes this quote:

“the concept of a sale is not in the best interest of the Town of Ipswich…I think that changing that community from a summer community …to a year-round condominium complex was not going to be good for the town… from a drain on services standpoint.”

Probate – Feoffees – 111212 – Loeb Deposition

Compare this with his answer (or more accurately non-answer) to Ken Swenson’s question on this topic at the January 5, 2012 School Committee meeting.

Rulings on Intervener’s Motions

The motions to intervene, to stay the judgment and to report matters to the appeals court were all denied today.  Given that this judge had already signed off on the settlement, the denials were no great surprise.  These motions were a necessary step along the path to a forthcoming appeal.

It was a little disappointing that she did not even give any logic for her rulings, but then she has never actually written down any logic for any of her actions in this case.

The rubber stamped motions can be found here:

Probate – Court – 120206 – Denial of Interveners Motions

Memo Supporting Motion to Intervene and Supplemental Affidavits

The first document is the legal argument for why we believe we have the right to intervene in this case.

The last link (CBRE Report) is an expert opinion stating that it is not only feasible but also desirable to lease Little Neck, and therefore illegal to break the will.  Although huge amounts of the schoolchildren’s money has been expended on appraisals and analysis of how one would go about breaking the will and selling the land, as far as we know this is the first analysis anyone has commissioned on how one would go about upholding the will and keeping the land.

Probate – Interveners – 120126 – Memo Supporting Motion to Intervene

Probate – Interveners – 120126 – Supplemental Ziegler Affidavit

Probate – Interveners – 120126 – Collins Affidavit

Probate – Interveners – 120126 – CBRE Report

Feoffees Opposition to Motion to Stay and Motion to Report

Probate – Feoffees – 120126 – Opposition to Motion to Stay and Motion to Report

There is actually a wealth of interesting information in the document below, including many financial statements for the Feoffees we had never seen before.

Probate – Feoffees – 120126 – Supporting Materials to Opposition

Probate – Feoffees – 120126 – Motion to Strike Affidavits 2

School Committee Opposition of Motion to Report and Motion to Stay

Your tax dollars at work.  The School Committee must have some extra money floating around outside of the funds approved by Town Meeting and restricted by the Selectmen.  This is a duplication of the Feoffees’ effort, since they have already opposed these motions.

Probate – SC – 120126 – Opposition of Motion to Stay Entry of Judgment

Probate – SC – 120126 – Opposition of Motion to Report