Opinion
13-P-1790
04-02-2015
JEANNE BUSA & another, v. CHRISTOPHER BUSA.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
Stephen Busa appeals from a judgment of the Probate and Family Court dismissing his complaint and ordering him to pay a discovery master $5,000. Substantially for the reasons stated by the motion judge, we affirm.
Because the parties and other individuals involved in this matter share the same last name, we refer to them by their first names.
This action stems from disputes over artwork belonging to the estate of Peter Busa. The decedent's son Stephen alleges that in 1992, his brother Christopher Busa took artwork that had been distributed from the estate to Stephen and/or his mother, Jeanne Busa, from Stephen's storage locker in Massachusetts. Christopher maintains that the owner of the storage locker was preparing to foreclose, and that he (Christopher) took ten to twelve paintings in payment for covering Stephen's arrearages. Peter Busa's estate, probated in Minnesota, was closed in 1994. Although Stephen sought relief in 1996 for the alleged theft in the Minnesota court that had probated the estate, the judge there denied relief, concluding that the dispute involved events that occurred in Massachusetts after the artwork at issue had been distributed from the estate in 1992.
Stephen then sought relief in Massachusetts by pursuing both criminal and civil proceedings. A criminal larceny case was dismissed. In 2006, summary judgment was granted to Christopher on Stephen's 2004 civil complaint which arose from substantially the same facts alleged in the complaint at issue in this appeal.
The current complaint, and all of the trial evidence, focused on the same claim -- that Christopher took some sixty to sixty-six artworks belonging to Stephen and his mother from a storage locker belonging to Stephen. The judge here found that Stephen alleged in the 2004 Superior Court action that Christopher wrongfully took the artwork that had been distributed to Stephen and had converted it to his own use. Stephen's appeal of that decision was ultimately dismissed. The grounds upon which summary judgment was granted are not in the record before us. However, Stephen acknowledged in his testimony that his claim of theft was the same in both civil actions. The judge also quoted extensively from the complaint in the 2004 action in his oral findings, pointing out that the allegations in this action and the 2004 action are "almost identical."
Here, Stephen continues to claim that Christopher wrongfully converted his portion of the artwork and seeks an order to return the artwork. Stephen has attempted to recharacterize the nature of his claims as an action for an accounting for the sale and disposition of the artwork which, Stephen asserts, Christopher holds in trust for Stephen.
Stephen cannot relitigate claims that were raised or could have been raised in the 2004 litigation. Heacock v. Heacock, 402 Mass. 21, 23 n.2 (1988). To the extent that he seeks to hold Christopher liable in this action under a new theory, principles of res judicata prevent him from doing so. There is no allegation that Christopher acquired additional artwork belonging to Stephen other than that he is alleged to have taken in 1992. "The statement of a different form of liability is not a different cause of action, provided it grows out of the same transaction, act, agreement, and seeks redress for the same wrong." TLT Constr. Corp. v. A. Anthony Tappe & Assocs., Inc., 48 Mass. App. Ct. 1, 8 (1999), quoting from Mackintosh v. Chambers, 285 Mass. 594, 596 (1934). "Claim preclusion applies 'even though the claimant is prepared in a second action to present different evidence or legal theories to support his claim.'" Bagley v. Moxley, 407 Mass. 633, 638 (1990), quoting from Heacock v. Heacock, supra at 23.
The complaint in this action alleges that Christopher sold artwork in 2008 and 2009, after the dismissal in 2006 of the 2004 Superior Court complaint. The issue of the ownership of the artworks ultimately sold between 2008 and 2009 was resolved by the dismissal of the 2004 complaint, and Stephen was therefore barred from challenging sales subsequent to 2006. Relitigation is barred, whether treated as claim preclusion or issue preclusion. See generally Sarvis v. Boston Safe Deposit & Trust Co., 47 Mass. App. Ct. 86, 98-99 (1999), and cases cited.
As alternative grounds, the judge also reached the merits of the dispute. At trial, Stephen largely relied on conduct that took place prior to the 2004 complaint, including a 2003 letter in which Christopher stated he held artwork on behalf of the estate and that Stephen will share in any profits, along with an actual payment of $1,000 that Christopher made to Stephen in 2003. Although there were times in his deposition and at trial that even Christopher claimed to represent "the estate" and hold artwork for the benefit of the estate, the judge found that Peter Busa's estate was closed in 1996 and the beneficiaries' shares of the artwork had been distributed in 1992. The judge rejected the assertion that Christopher held artwork for the benefit of the long-closed estate or for Stephen as one of its beneficiaries. The judge was not required to accept Christopher's misuse or misunderstanding of legal terms as an admission that he is a trustee owing fiduciary duties to Stephen. Moreover, Stephen contends Christopher made these same statements prior to the 2004 complaint, thus lending additional credence to the judge's disposition on the grounds of res judicata. Nor do we find his factual findings to be clearly erroneous. There was no error in either of the judge's grounds of decision.
Christopher held artwork belonging to another brother and sister, with their full consent. Stephen's argument at trial appeared to be that the provision of Peter Busa's will gave him a one-sixth undivided interest in all artwork, and that Christopher owed Stephen a fiduciary duty with respect to all artwork held by Christopher. In his findings and rulings, the judge rejected this characterization, concluding that the artwork was selected and distributed in 1992 in accordance with either an order or an agreement of the parties in the Minnesota probate action, and that Stephen and his mother "received" their one-sixth shares in 1992.
Because Stephen's claims were precluded by principles of res judicata, we need not address his argument that the judge erred by failing to give him notice that his motion for discovery sanctions, including that Christopher be prohibited from putting on a defense, would be allowed. In light of the preclusive effect of the prior litigation, further cross-examination of Christopher would not have assisted him. Moreover, Stephen conducted an extensive examination of Christopher as a hostile witness.
Finally, Stephen claims it was an abuse of discretion for the judge to require him to pay for the discovery master, reasoning that Christopher's recalcitrance and obstructionist behavior necessitated the appointment of the discovery master. Christopher unilaterally ignored and obstructed reasonable discovery requests. However, Stephen had embarked on four legal proceedings in twenty-seven years. The current litigation sought to obtain a result that had been rejected in the 2004 civil action. The judge conducted a multi-day trial and concluded that Stephen's testimony was wholly incredible. Although we do not condone Christopher's obstructionist tactics, the judge did not abuse his discretion in ordering Stephen to pay the discovery master, where the current action was barred by the doctrine of res judicata, and Stephen had sought the discovery master in order to relitigate a claim he had already lost.
Judgment affirmed.
By the Court (Kafker, Wolohojian & Sullivan, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: April 2, 2015.