Opinion
11-P-412
12-16-2011
MALL AT LIBERTY TREE, LLC v. NGA T. VOLE.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant's failure to pay rent pursuant to a commercial lease led to a summary process action for possession and rent arrearage in the District Court. Judgment entered on both counts for the plaintiff. Approximately one year thereafter, the plaintiff commenced an action in the Superior Court seeking damages pursuant to an acceleration clause for unpaid rent attributable to the remaining term of the lease.
Original defendant Brian Hoang, as well as the trustee defendants, are not parties to this appeal.
The amount of unpaid rent in arrears claimed as damages in the District Court summary process action was $31,853.32. In addition to that amount, still unpaid, approximately $440,000 attributable to the remaining lease term was claimed as damages in the Superior Court action.
Discussion. The facts are undisputed. The only issue on appeal, as below, is whether the second action is barred by the principle of res judicata. The parties are in agreement that the parties to both actions are identical and that a final judgment on the merits entered in the summary process action. Their arguments are directed to the identity of the cause of action in each lawsuit. See Kobrin v. Board of Registration in Med., 444 Mass. 837, 843 (2005). '[T]he guiding principle is that [the plaintiff] is precluded from litigating not only those claims that were actually decided in the [initial] case but also those that could have been brought in that action.' Diep Bui v. Ha T. Ma, 62 Mass. App. Ct. 553, 562 (2004), citing Charlette v. Charlette Bros. Foundry, Inc., 59 Mass. App. Ct. 34, 44 (2003).
The plaintiff's argument that it could not have brought a claim in the summary process action for damages pursuant to the acceleration clause is unavailing. See, e. g., Cummings Properties, LLC v. National Communications Corp., 449 Mass. 490, 490 (2007) ('A judge in the District Court awarded the landlord damages as calculated by the accelerated rent provision, and possession of the leased premises'). See also G. L. c. 239, § 2 (statute permits landlord to sue for rent in subsequent action only if landlord failed entirely to sue for any rent in summary process action). The plaintiff points, not without rational basis, to the impracticality of protracted litigation to resolve commercial lease issues in the District Court at a point in time when the economic impetus for the landlord is to repossess the premises promptly and render it profitable. However, and presumably for that reason, our rules permit an action for repossession alone, to be followed by a later suit for damages including past and future rents. G. L. c. 239, § 2. But once the plaintiff included its claim for rent arrearage in the summary process action, it could have, and should have, brought a claim for damages pursuant to the acceleration clause as well. Accordingly, the judge correctly determined that the plaintiff's claim for additional rent due under the acceleration clause in the second action was barred by res judicata.
To the extent that the plaintiff still wishes to file suit on its summary process judgment pursuant to G. L. c. 235, § 19, our decision is without prejudice. See First Natl. Bank of Boston v. Bernier, 50 Mass. App. Ct. 756, 758 n.6 (2001) (referencing, inter alia, Linton v. Hurley, 114 Mass. 76 [1873] and Shapiro, Perlin, & Connors, Massachusetts Collection Law §§ 8:2, 9:9 [2d ed. 1992]).
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Judgment affirmed.
By the Court (Berry, Brown & Grainger, JJ.),