Bank of Montreal v., 2013 ABQB 596

Court of Queen ’ s Bench of Alberta Citation: Bank of Montreal v. 1323606 Alberta Ltd., 2013 ABQB 596 Date: 20131011 Docket: 1003 19619 Registry: Edmonton Between: Bank of Montreal Plaintiff - and - 1323606 Alberta Ltd. and Seclusion Valley Developments Ltd. Defendants - and - Coco Homes Inc. Third Party _ ________________________________________ ______________ Reasons for Judgment of the Honourable Madam Justice J.E. Topolniski

_________________________________________ ______________ [ 1 ] This application concerns entitlement to $142,862.61 and accrued interest, being a portion of the net sale proceeds (“Proceeds”) of a nearly completed show home (“Show Home”). The Show Home was built by Coco Homes Inc. and Coco Homes Inc. operating under the trade name Timbercreek Homes (collectively “Coco) in a residential subdivision developed by Seclusion Valley Developments Ltd. and 1323606 Alberta Ltd. (collectively “Developer”).

The Show Home was sold in the Developer’s Court-supervised receivership. [ 2 ] The Bank of Montreal (“BMO”) claims entitlement to the Proceeds pursuant to first-place mortgage security granted to it by the Developer. [ 3 ] Coco claims entitlement to the Proceeds on three grounds: 1. the principle of nemo dat quod non habet , 2. the equitable remedies of unjust enrichment and constructive trust; and 3.

section 69 of the Law of Property Act ¸ R.S.A. 2000, c. L-7. II. Background [ 4 ] In January 2006, the Developer bought a parcel of land with a view to developing a 69 lot residential subdivision (“Project”). [ 5 ] On July 30, 2007, the Developer and Coco entered into a contract under which Coco could purchase up to 22 Project lots and construct a show home (‘Contract”). The Contract specified: 1. general payment terms for the lots, which included two 10% deposits to be paid:

a) the first payment seven days after a “lot draw”, and

b) the second payment after the occurrence of certain events; and 2. the Developer would “release” show home lots and “hold an encumbrance on title” when construction began, and Coco would pay for them on the first of two events. [ 6 ] The general effect of the show home element of the Contract is that the Developer would provide a residential lot of its choice on which Coco could build a show home.

The Contract stated that if Coco chose to build a show home, the Developer would transfer title to the show home lot to Coco at no cost once construction began. [ 7 ] On 19 August 2007, Coco paid the Developer the first 10% deposit due under the Contract.

No other monies were ever paid, purportedly because the Developer repudiated the Contract. [ 8 ] In November 2007, the Developer obtained a $6,764,000.00 loan from BMO to develop the Project and, in turn, gave BMO blanket mortgage security on the Project land (“Mortgage”). [ 9 ] On November 26, 2007 BMO registered the Mortgage at Alberta Land Titles against all 69 Project lots.

Between November 27, 2007 and early August 2008, BMO advanced more than $5,300,000.00 to the Developer. [ 10 ] By June of 2008, Coco’s principal believed the Developer was in “crippling” financial trouble, had “exhausted its credit facilities” and “was on the verge of losing its financing”. At this time Coco also knew that the Developer wanted to renegotiate the Contract. [ 11 ] Sometime in August 2008, Coco started building the Show Home.

The construction was halted near completion, purportedly due to alleged breach of the Contract by the Developer (which is coincidentally one claim advanced by Coco in subsequent litigation between Coco and the Developer). [ 12 ] The Developer never transferred the Show Home lot to Coco and on April 6, 2009, Coco registered a caveat, claiming a purchaser’s interest, on the title of the Show Home.

The Developer then responded with a Statement of Claim that alleged: 1. breach of the Contract for failure to pay anything but the first 10% deposit; 2. failure to complete and pay for the Show Home lot; and 3. damages consequent to the Caveat. In turn, Coco defended and counterclaimed. It alleged breach of contract, unjust enrichment and asserted a constructive trust in connection to the Show Home (“Litigation”). [ 13 ] The Developer applied to strike the Caveat.

On May 20, 2010 Master Laycock directed part payment of the net proceeds to BMO, an amount that was somehow calculated as the value of the lands on which the Show Home was located. The balance, which represents the value of the Show Home itself, was held in trust. [ 14 ] On November 23, 2010, the Developer was placed in receivership and all actions against it were stayed. The receivership proceeded in the normal course and on December 20, 2012, the Court authorized the sale of the Show Home.

III. The Parties’ Positions [15] BMO contends that

section 14 and

section 203(

b) of the Land Titles Act, R.S.A. 2000, c. L-4 constitute a complete answer to its priority position. It further asserts that Coco’s claims fail since the Mortgage trumps anypossible interest it may have by contract, equity, or statute. [16] Coco accedes that BMO is entitled the partial proceeds attributable to the value of the lands on which the Show Home isconstructed, but argues that whether it mistakenly believed or de facto owned the Show Home pursuant to the Contract, the Developercould not give valid mortgage security to BMO. Ergo, the Mortgage cannot affect its interest in the Show Home. Alternatively, Cocoargues that

section 69 of the Law of Property Act, R.S.A. 2000, c. L-7, entitles it to the value of the Show Home as it is an improvementmade on land that Coco believed it owned. Finally, Coco argues that there must be a trial of the issues. IV. Analysis [17] Arguably, Coco has two separate legal bases for an interest in the Proceeds: 1. an equitable interest in the Show Home, which it built without consideration or other benefit; and 2. a statutory interest under the Law of Property Act for making an improvement on property under the belief of ownership. [18] The analysis necessarily begins with an overview of statutory

interpretation, the Torrens system and the relevant Land TitlesAct provisions. A. Statutory

Interpretation [19] The modern approach to statutory

interpretation was identified in Rizzo & Rizzo Shoes Ltd. (Re), (SCC),[1998] 1 S.C.R. 27 at 41, 154 D.L.R. (4th) 193: [20] Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in theirgrammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. This approach was most recently restated in R. v. A.D.H., 2013 SCC 28 at para. 19. B. The Torrens Land Registration System [21] In Alberta, interests in land are tracked by the Torrens title registration system. [22] The Torrens system provides for efficient management of land title by requiring that any legal interest in land be recorded in aregistry operated by the Land Titles Office of the Service Alberta Department.

It is designed to meet a simple policy goal – to provide aclear, definitive mechanism to evaluate the status of land. [23] This policy goal was explained by the Privy Council in Gibbs v. Messer, [1891] A.C. 248 at 254: The main object of the Act, and the legislative scheme for the attainment of that object, appear to be equally plain.

The object is to savepersons dealing with registered proprietors from the trouble and expense of going behind the register, in order to investigate the historyof their author's title, and to satisfy themselves of its validity. ... [24] The Torrens system protects any person relying on the register: Fels v. Knowles (1907), 26 N.Z.L.R. 604 at 620 (C.A.), citedapprovingly in Union Bank of Canada v. Boulter Waugh Ltd. (1919), (SCC), 58 S.C.R. 385, 46 D.L.R. 41, and therights afforded by it are substantive rights: Agriculture Financial Services Corp. v.

Redmond, 1999 ABCA 175 at para. 85, 174 D.L.R.(4th) 694. [25] Title as provided in a Torrens registry is absolute proof of ownership, with only limited exceptions. Justice Estey in CanadianPacific Railway Company v.

Turta (No. 2), (SCC), [1954] S.C.R. 427 at 443, [1954] 3 D.L.R. 1 stated the principle inthis manner: That one who is named as owner in an uncancelled certificate of title possesses an "indefeasible title against all the world", subject tofraud and certain specified exceptions, while one who contemplates the acquisition of land may ascertain the particulars of its title at theappropriate land titles office and deal with confidence, relying upon the information there disclosed. ... [26] An acknowledged by-product of this approach to land title is that the Torrens system may, from time to time, imposehardships.

This is particularly true when a person does not promptly register their title. Justice Estey continues: ... Moreover, it contemplates that those who acquire a registerable interest in land will, without delay, effect registration thereof andavoid possible prejudice.

That such a system may from time to time impose hardships is obvious and, therefore, in addition to preservingactions against the wrongdoer, the legislature has provided an assurance fund out of which, in appropriate cases, compensation may bepaid to those who suffer a loss. [27] The priority ranking of encumbrances registered on title is determined by Land Titles Act, section 14(3): 14(3) For purposes of priority between mortgagees, transferees and others, the serial number assigned to the instrument or caveat shalldetermine the priority of the instrument or caveat filed or registered. [Emphasis added]

An encumbrance which is registered first (determined by serial number) has priority over any encumbrance that follows. [ 28 ] Section 104(1) clarifies that the priority date of a mortgage is the date (serial number) that the mortgage is registered, and not the point at which money is advanced to the landowner under that mortgage: 104(1) On registration of a mortgage for a specific principal sum, the mortgage obtains priority in accordance with

section 14 of this Act for all advances and obligations secured pursuant to the terms of the mortgage, notwithstanding that they are made or incurred subsequent to the registration, on or after January 1, 1983, of any other instrument or caveat. [ 29 ] The Torrens system’s simple, direct, single-resource mechanism to evaluate land title prompted the observation in Community Credit Union Ltd. v.

Otto , 2002 ABQB 317 at para. 9 , that is remarkable that someone would develop on land without first making a review of the Land Title Register because: [s]imply put a person seeking to acquire an interest in land is entitled to rely absolutely on the register and if one ignores the register, it is at one’s peril. Conducting a land titles search is simple and inexpensive and access to the registry is unrestricted. ... [ 30 ] Any person can evaluate who owns real property by examining the Land Titles Register information on the land in question.

There is no legal obligation to investigate possible unregistered claims which may be attached to land. In Sibley v. British Columbia (Registrar of Land Titles) , [1981] B.C.J. No. 43 (B.C.S.C.) , Selbie L.J.S.C. said this at para. 33: To the suggestion that the petitioners, personally or through their solicitor, should have, in effect, "double checked" the abandonment by contacting the party who put the Caveat on in the first place, I can only say that I know of no such duty on the part of a bona fide purchaser acting in good faith.

That would be an intolerable burden to put on prospective purchasers -- to investigate every known, suspected or rumoured, prior unregistered claim before entering into their contract. The law provides a procedure for the protection of claimants and they ignore those procedures at their peril. ... [Emphasis added] To require otherwise frustrates the legislative intent of the Torrens system: Szabo v. Janeil Enterprises Ltd. , 2006 BCSC 502 at para. 40 , 55 B.C.L.R. (4th) 188. C. The Mortgage [ 31 ] The Mortgage is the first registered encumbrance on the title of the land upon which the Show Home is located.

Under sections 14 and 104 of the Land Titles Act , BMO would have first priority to the Proceeds. At issue is whether Coco’s interconnected claims of nemo dat quod non habet and for equitable relief or its claim under

section 69 of the Law of Property Act undermine that priority position. D. Application of the Law [ 32 ] A starting point for this aspect of the analysis is how

section 203 of the Land Titles Act and

section 69 of the Law of Property Act ,

section 69 operate and potentially interact. 1. Land Titles Act ,

section 203 [ 33 ] “Land” is defined by

section 1 (

m) of the Land Titles Act : 1 In this Act, ... (m) “land” means land, messuages, tenements and hereditaments, corporeal and incorporeal, of every nature and description, and every estate or interest therein, whether the estate or interest is legal or equitable, together with paths, passages, ways, watercourses, liberties, privileges and easements appertaining thereto and trees and timber thereon, and mines, minerals and quarries thereon or thereunder lying or being, unless any of them are specially excepted ... This definition captures all structures built on land. [ 34 ]

Section 203 of the Land Titles Act indicates the kinds of interests that are subject to the Land Title Register. Put another way, this provision indicates what interests Land Title Registration can defeat. 203(1) In this

section , (a) “interest” includes any estate or interest in land; (b) “owner” means (

i) the owner of an interest in whose name a certificate of title has been granted, (ii) the owner of any other registered interest in whose name the interest is registered, or (iii) the caveator or transferee of a caveat in whose name the caveat is registered.

(2) A person contracting or dealing with or taking or proposing to take a transfer, mortgage , encumbrance, lease or other interest from an owner is not, except in the case of fraud by that person , (

a) bound or concerned, for the purpose of obtaining priority over a trust or other interest that is not registered by instrument or

caveat, to inquire into or ascertain the circumstances in or the consideration for which the owner or any previous owner of the interestacquired the interest or to see to the application of the purchase money or any part of the money, or (

b) affected by any notice, direct, implied or constructive, of any trust or other interest in the land that is not registered by instrumentor caveat, any rule of law or equity to the contrary notwithstanding.

(3) The knowledge of the person that any trust or interest that is not registered by instrument or caveat is in existence shall not of itself beimputed as fraud. ... [Emphasis added] [35] Read plainly, section 203(2)(

a) provides a final answer. Outside of fraud Coco has no interest in the land and structures onthat land. [36] In United Trust Co. v. Dominion Stores Ltd., (SCC), [1977] 2 S.C.R. 915, 71 D.L.R. (3d) 72 the SupremeCourt of Canada stated, in obiter, that the effect of a precursor to the modern

section 203 is that an unregistered encumbrance fails toaffect the title of the purchaser for value (at para. 75): ... that the many cases cited by counsel for the appellant for the proposition that actual notice is ineffective, including some cases whichbear an almost exact resemblance to the present, are cases which depend upon the statutory provisions in the various jurisdictionscontaining such express provision ... As an example, may be cited the provisions of

section 203 of The Land Titles Act of Alberta,R.S.A. 1970, c. 198, which I quote: 203.

Except in the case of fraud, no person contracting or dealing with or taking or proposing to take a transfer, mortgage,encumbrance or lease from the owner of any land in whose name a certificate of title has been granted shall be bound or concerned toinquire into or ascertain the circumstances in or the consideration for which the owner or any previous owner of the land is or wasregistered or to see to the application of the purchase money or of any part thereof, nor is he affected by notice direct, implied, orconstructive, of any trust or unregistered interest in the land, any rule of law or equity to the contrary notwithstanding, and the knowledgethat any trust or unregistered interest is in existence shall not of itself be imputed as fraud. [R.S.A. 1955, c. 170,

section 203] There is no doubt that when such a term appears in the governing statute, the result is that unregistered encumbrances fail in any way toaffect the title of the purchaser for value. [Emphasis added] [37] Justice Campbell of the Ontario Superior Court of Justice subsequently applied United Trust Co. v. Dominion Stores Ltd. inRomspen Investment Corp. v. Edgeworth Properties, 2012 ONSC 4693 at para. 23, a case dealing with Alberta lands. There, a prioritydispute between investors with unregistered interests, and a mortgagee with a registered interest, resulted in an “absolute rule” aboutactual notice of an unregistered interest:

Section 203 of the Act represents an unequivocal abrogation of the doctrine of actual notice in Alberta such that, absent fraud, anunregistered interest cannot under any circumstances trump a registered interest. ... [38] Sheffield Welding and Fabricating Ltd. v. 958760 Alberta Ltd., 2003 ABQB 181, 121 A.C.W.S. (3d) 374 concerned anunregistered agreement made between the applicant and a third party. Read J. Concluded this at para.14: The Alberta Court of Appeal has made it quite clear in Holt Renfrew & Co. v. Henry Singer Ltd (1982), 1982 ABCA 135 , 135D.L.R. (3d) 391 and other cases, that this

section means what it says and mere knowledge of an unregistered encumbrance does notconstitute fraud for the purpose of

section 203 of the Land Titles Act. ... I must find, as a consequence that

section 203 operates and thatthe Respondent did not take title subject to the agreement between the Applicant and Metro Tile. While as between Metro Tile and theApplicant it may indeed matter whether or not the agreement was in writing, this is immaterial as between the Applicant and theRespondent. The principle of indefeasibility of title which principle is the basis for

section 203 of the Land Titles Act makes clear thatabsent fraud, the Respondent takes title to the Lands free and clear of and is not bound by any unregistered agreement between theApplicant and any previous owner.... [Emphasis added] [39] Romspen Investment Corp. v. Woods Property Development Inc., 2011 ONCA 817, 346 D.L.R. (4th) 273 is an Ontario casewhich concerned a priority dispute between a registered mortgagee and third party which had an unregistered interest in the lands.Ontario does not have a provision akin to

section 203. As a consequence the reasoning and result in this case simply has no relevance tothe current dispute. [40] In the result, the effect of

section 203 of the Land Titles Act is to effectively extinguish Coco’s claims, common law orstatutory, to the Proceeds which I conclude also captures any claim in equity to the value of the Show Home. 2. Law of Property Act,

section 69 [41]

Section 69 of the Law of Property Act states: 69(1) When a person at any time has made lasting improvements on land under the belief that the land was the person’s own, theperson or the person’s assigns (

a) are entitled to a lien on the land to the extent of the amount by which the value of the land is enhanced by the improvements, or (

b) are entitled to or may be required to retain the land if the Court is of the opinion or requires that this should be done having

regard to what is just under all circumstances of the case.

(2) The person entitled or required to retain the land shall pay any compensation that the Court may direct.

(3) No right to the access and use of light or any other easement, right in gross or profit a prendre shall be acquired by a person byprescription, and no such right is deemed to have ever been so acquired.[Emphasis added] [42] This provision is, in many ways, unusual. In Montreuil v. Ontario Asphalt Co. (1922), (SCC), 63 S.C.R.401, 69 D.L.R. 313, the Supreme Court of Canada considered

section 37 of the Ontario Conveyancing and Law of Property Act, R.S.O.1914, c. 109, a functional equivalent to the modern

section 69 Alberta Law of Property Act. There, Anglin J. observed: This statute gives the court the extraordinary power of depriving a lawful owner of his property against his will, although for acompensation. ... The conditions on which a jurisdiction so much in derogation of common law right is conferred must be strictlyconstrued and fully satisfied. ... [Citations omitted] [43] The Law of Property Act is not intended to provide an interest that trumps the Land Titles Act and the normal operation of theTorrens land registration system.

Here, I note that while the Land Titles Act does not include any operational limitations, the Law ofProperty Act references the operation of the Land Titles Act. For example, section 64(8) specifically identifies that

section 64: ... is subject in all respects to the Land Titles Act ... and the priority of any interest registered of filed under the [Land Titles Act] shall bedetermined pursuant to that Act. [44] While

section 69 does not include an explicit restriction on its function, the operation of the Torrens system means that itsimply cannot be interpreted to grant an unregistered priority to any person who builds an improvement on land. To interpret it otherwisewould defeat the legislature’s intent in adopting the Torrens system. [45] In Community Credit Union Ltd. v. Otto, a person built a home on property that he did not own, but which he had planned topurchase. He did not register any interest with the Land Titles Office. The Court rejected the notion that

section 69 offered a priorityposition, stating at para.16: I am satisfied that this

section is designed to protect persons who make lasting improvements on land under the honest belief that theland was their own. Here the purchaser chose to build before he had title and was either oblivious or unconcerned with the state of thetitle and proceeded at his own risk. W.H. Hurlburt in Improvements under Mistake of Ownership,

Section 183 of the Land Titles Act(1978) 16 Alta. Rev. 107-116 makes it clear that

section 69 was not intended to deal with case where a purchase of land was so carelessas to fail to check for writs against the vendor for building on land. I agree that this is the correct approach where a person builds an improvement on land that is not their own and fails to register theinterest. [46] Clearly,

section 69 requires the improvement builder to be “... under the belief that the land was the person’s own ...”, whichincludes mistakes about the title or the identity of the property covered by the title: Jusza v. Dobosz, 2003 ABQB 582 at para. 7, 22 Alta.L.R. (4th) 151. To succeed, the claimant’s belief need not be reasonable, so long as it is honestly held. The reasonableness of the belief isrelevant as to whether it was, in fact, honestly held and it is assessed on an objective basis: Mund v. Medicine Hat (City), 1988 ABCA168 at paras. 11-12; Canada Permanent Trust Co. v. Herron, [1975] A.J.

No. 61 at para. 11 (Alta. S.C.T.D.); Deguire v. Burnett, 2013ABQB 488 at para.27. [47] While the Show Home constitutes a “lasting improvement”, it would be unreasonable to find that Coco had an honest beliefthat it owned the land on which it was constructed. Undoubtedly, the Contract potentially provided Coco a kind of interest in the ShowHome’s lot once Coco began construction on that site. That said, Coco cannot reasonably argue that it believed it had title to the land. [48] In this sense Coco is all but the opposite of the squatter in Mund v. Medicine Hat (City).

Unlike Mund, who believed he had acontractual right to occupy land that was not challenged for decades by Medicine Hat, Coco and the Developer immediately and activelydisputed the operation of the Contract and Coco’s potential interest (if any) in the Show Home lot. Mund had a mistaken but honest(mis)understanding of the relevant law and principles. Coco is a business that builds residences, a far from unsophisticated entity, andtherefore is very different from Mund, whom the court described as an introvert who only wished to avoid social contact.

In brief, Cocoknew or ought to have known that ownership from land flows from title and the evidence does not support finding that it was misledabout the Developer not transferring title to the Show Home lot to it. [49] In Montreuil v. Ontario Asphalt Co., Anglin J. for the majority of the Supreme Court of Canada concluded that a contractualright to own land, in this instance an option to purchase land, is not sufficient to create a belief in the ownership in land.

The Court foundthat irrespective of the tenant’s having decided to purchase the lands, there could be no honestly held belief until the option wasexercised. This is analogous to Coco’s situation. Coco had a potential right in contract to the land on which the Show Home wasconstructed, however that right had not crystallized by completion of Contract. Instead, that contractual relationship fell into dispute andneither was title transferred nor did Coco provide its second deposit. [50] Coco’s claim to the Proceeds under

section 69 of the Law of Property Act fails. 3. Equitable Claim via nemo dat quod non habet [51] Coco’s claim based on the principle nemo dat quod non habet fails as a consequence of the law on ownership of fixtures. TheShow Home is permanently attached to the land and is therefore a fixture that becomes a part of the land: Gough v. Wood & Co., [1894]1 Q.B. 713 at 718-719. A mortgage applies to those fixtures, as was explained by Lord Lindsey of the House of Lords in Reynolds v.Ashby & Son, [1904] A.C. 466 at 474:

I pass now to consider whether in this case the fact that the mortgagor Holdway had not acquired the ownership of the machines bypaying for them entitles the appellant to recover their value from the defendants. The title to chattels may clearly be lost by being affixedto real property by a person who is not the owner of the chattels. This was pointed out in Gough v. Wood, [1894] 1 Q.B. 713, and is veryold law. Holdway agreed to buy the machines; but the appellant knew what he wanted them for, and that before paying for them heintended to put them up in his factory and to use them.

The appellant knew that the factory was mortgaged, and ran the risk of themachines being claimed as fixtures. In effect, Holdway was authorized by the appellant to convert the chattels into fixtures, subject to theright of the appellant to enter and retake them if Holdway did not pay for them. But, apart from this knowledge and authority, the resultwould be the same, although not so obvious.

After the machines were fixed, and before the appellant claimed them, the secondmortgagee took possession; the appellant's right to enter and remove the machines, resting as it did on his contract with Holdway, ceasedto be exercisable. The appellant has no greater rights against the defendants than he had against the second mortgagee, whose rights thedefendants have acquired. The machines had ceased to be chattels belonging to the appellant; they were not chattels wrongfully detainedby the defendants.

The machines had become fixtures which the appellant was not entitled to remove from the possession of themortgagees. ... The same is true for the Show Home. [52]

Section 203 of the Land Titles Act neuters Coco’s claim under the nemo dat quod non habet principle. 4. Equitable Claim via Constructive Trust [53] Simple application of the fourth branch of the test in Soulos v. Korkontzilas, (SCC), [1997] 2 S.C.R. 217,146 D.L.R. (4th) 214 makes it clear that a remedy based on constructive trust is not available to Coco. Stated otherwise, the fact of thirdparty prejudice removes the remedy of constructive trust as against the Developer from Coco’s reach. There is nothing to be gained bydeferring the question to a trial of the issue. V.

Conclusion [54] In the result, all of Coco’s arguments for entitlement to the Proceeds fail. [55] Coco cannot escape the effect of

section 14 and

section 203 of the Land Titles Act. To permit otherwise would sanction anunregistered beneficial owner defeating the Land Titles Registry system and undermining the certainty of the Torrens system. [56] While this may seem a harsh result, it is also an inevitable one. Coco could have chosen to exercise due diligence by checkingthe Land Titles register. Instead, it chose to proceed at its own risk and bears the consequences of doing so. VI. Costs [57] BMO has been entirely successful in this application and is entitled to costs.

Should the parties require assistance to determinethe appropriate award, they may speak to the issue within 60 days. Heard on the 23rd day of July and the 11th day of September, 2013. Dated at the City of Edmonton, Alberta this 11th day of October, 2013. J.E. Topolniski J.C.Q.B.A. Appearances: Francine M. Ouellette Dentons LLP for the Plaintiff

No one appearing for the Defendants Matthew X. James Machida James McGurk for the Third Party