Opinion
No. 10–P–436.
2013-04-26
GREENLEAF FINANCIAL SERVICES, INCORPORATED v. Joseph LAPLANTE.
By the Court (WOLOHOJIAN, HANLON & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In 1994, Greenleaf Financial Services, Incorporated (Greenleaf), filed this action in Worcester Superior Court (Worcester action) against Joseph Laplante and two others.
Greenleaf sought declaratory relief in the nature of a deed confirming its title to property previously mortgaged by Laplante. Laplante counterclaimed, alleging in substance that Greenleaf had wrongfully foreclosed on the subject property. On remand, a judge dismissed Laplante's counterclaims on the grounds that they were precluded by the judgments (dated November 9, 1999) in an earlier litigation in Norfolk Superior Court (Norfolk action).
Brenda M. Laplante and Proctor P. Cook, who are not parties to this appeal.
The same judge denied Laplante's motion for relief from judgement, which cites Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974). Laplante appealed from the dismissal of his counterclaims and from the order denying his motion. In this consolidated appeal, Laplante argues that the judge (1) erred in dismissing his counterclaims, and (2) abused his discretion in denying LaPlante's rule 60 motion. We affirm. Claim preclusion.
See our memorandum and order pursuant to our rule 1:28, Greenleaf Financial Servs., Inc. v. Laplante, 63 Mass.App.Ct. 1123 (2005).
“[C]laim preclusion requires three elements: ‘(1) the identity or privity of the parties to the present and prior actions,
Because the motion judge reviewed matters outside the pleadings, we employ the familiar summary judgment standard of review.
(2) identity of the cause of action,
“For preclusive effect to flow from a prior judgment, the party against whom preclusive effect is asserted must have been either a party in the prior case or in privity with a party.” Bourque v. Cape Southport Assocs., LLC, 60 Mass.App.Ct. 271, 274 (2004). Privity may be shown where the party in the present action “exercised ‘substantial control’ over [a party] in the prior action.” Id. at 274–275, citing Restatement (Second) of Judgments § 39 (1982). Substantial control exists when “the party to the present action ‘possessed effective control over a party's conduct of the earlier litigation as measured from a practical, as opposed to a purely theoretical, standpoint.’ “ Bourque, supra at 275 (citation omitted).
and (3) prior final judgment on the merits.’ “ Kobrin v. Board of Registration in Med., 444 Mass. 837, 843 (2005) (citation omitted). We see no error in the judge's conclusion that each of the three elements of the doctrine was met.
“A claim is the same for res judicata purposes if it is derived from the same transaction or series of connected transactions.” Saint Louis v. Baystate Med. Center, Inc., 30 Mass.App.Ct. 393, 399 (1991). “What factual groupings constitutes a ‘transaction’, and what groupings constitute a ‘series', are to be determined pragmatically.” Ibid., quoting from Restatement (Second) of Judgments § 24(2).
Nor did the judge stray beyond the bounds of discretion in deciding the motion without a hearing, particularly where no showing has been made as to what, if anything, would have been gained from holding a hearing and the judge's decision was based entirely on a documentary record.
The judge's conclusion that “LaPlante was a party to the [Norfolk] action, notwithstanding his well-documented efforts to mislead the court as to whether he or his son, Joseph E. LaPlante, was the party of record in [that] earlier [Norfolk] litigation involving the LaPlante Family Trust,” was well supported by the record. Laplante has asserted that he was the “appropriate” plaintiff in the earlier Norfolk action, and that he initiated and controlled that action. Moreover, Laplante has acknowledged that the Worcester action involved “the same or similar parties” as the Norfolk action.
We also discern no error in the judge's finding that “the transactions at issue in both cases are identical.” The claims all revolve around Greenleaf's alleged wrongful foreclosure.
Even Laplante does not seriously dispute that the claims in the Worcester action were the same as those in the Norfolk action.
Finally, we are not persuaded by Laplante's argument that the Norfolk judgments dismissing his wrongful foreclosure claims had no subsequent preclusive effect because these claims were voluntarily dismissed, “by agreement.” The record does not support Laplante's argument. The record does not indicate that as to the wrongful foreclosure claims in the Norfolk action, Laplante filed a notice of voluntary dismissal, that the parties filed a stipulation of dismissal without prejudice, or that these claims were dismissed in some other manner at Laplante's instance. See Mass.R.Civ.P. 41(a)(1) & (a)(2), 365 Mass. 803 (1974). On the contrary, the Norfolk judgments addressing the wrongful foreclosure claims were labelled “Judgment On Motion To Dismiss (Pursuant To Mass. R. Civ. P. 12(b).” As such, they fall within Mass.R.Civ.P. 41(b)(3), as amended, 454 Mass. 1403 (2009), see Mestek, Inc. v. United Pac. Ins. Co., 40 Mass.App.Ct. 729, 731 (1996),
and therefore were judgments “on the merits.” Mass.R.Civ.P. 41(b)(3).
Contrast Morgan v. Evans, 39 Mass.App.Ct. 465, 468–469 (1995) (where prior dismissal was based on a reported settlement, and both parties agreed that the prior dismissal was pursuant to rule 41, the prior dismissal was considered “voluntary” within the meaning of rule 41 [a][2] ).
Alternatively, we think it was fair for the judge to conclude that the Norfolk judge's dismissal of Laplante's G.L. c. 93A claim-a dismissal that indisputably was on the merits-embraced all of the alleged conduct forming the basis of Laplante's counterclaims in the Worcester action.
Motion for relief from judgment. We discern no abuse of discretion in the judge's denial of Laplante's motion under rule 60(b). See Nortek, Inc. v. Liberty Mut. Ins. Co., 65 Mass.App.Ct. 764, 775 (2006) (“A motion for relief under rule 60(b) is directed to the sound discretion of the motion judge, and we review the judge's ruling for abuse of discretion”). Only one of LaPlante's arguments was amenable to consideration under rule 60: Laplante's argument in regards to a “title opinion letter” dated November 17, 2009.
See Mass.R.Civ.P. 60(b)(2) (relief permitted where there is “newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b)”). But as the judge explained: “The court does not find [the title opinion letter] submission to be newly discovered evidence nor that its late appearance can be excused on the theory of excusable neglect, mistake or inadvertence. This case was filed in 1994 and relates to events occurring in 1993.” See Poskus v. Lombardo's of Randolph, Inc., 48 Mass.App.Ct. 527, 528 (2000).
The other arguments raised in Laplante's rule 60 motion were arguments more proper for appeal. See Amerada Hess Corp. v. Garabedian, 416 Mass. 149, 156 (1993) (rule 60 does not provide “for general reconsideration of an order or a judgment, or an avenue for challenging alleged legal errors that are readily correctible on appeal”). In any event, Laplante has not argued most of them here and, to the extent he has, we conclude they are without merit.
Conclusion. We affirm so much of the judgment entered on November 6, 2009, that dismisses the counterclaims, and we affirm the order dated September 30, 2010, denying the motion for relief from judgment. We remand so that the court may order the heirs or executor of Proctor P. Cook (who is now deceased) to execute the confirmatory deed sought by Greenleaf.
So ordered.