Opinion
13-P-1826
04-01-2015
ALIX M. O'CONNELL & another v. SUSAN P. WHITE & another.
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
The plaintiffs appeal from a Land Court judge's allowance of a motion to dismiss pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), on the basis of res judicata. The judge concluded that the plaintiffs' claim seeking judicial recognition of an easement burdening 50 Rockwood Street, a parcel of land in the Jamaica Plain section of Boston, could have been presented and litigated in a prior action to quiet title for the same parcel of land, which was brought by the grandmother of one of the plaintiffs, and which was also dismissed pursuant to rule 12(b)(6). Upon review of the parties' briefs and the record, we affirm the judgment.
Background. We summarize the facts alleged in the complaint and from undisputed record documents. The plaintiffs, Alix M. O'Connell and her husband, Brian D. O'Connell, reside at 44 Rockwood Street. The defendants, Susan P. White and her husband, William A. White, reside at 60 Rockwood Street. The two properties are separated by 50 Rockwood Street, an unimproved parcel. The defendants are the current title owners of 60 Rockwood Street and 50 Rockwood Street. The plaintiffs became owners of record of 44 Rockwood Street in 2011, when Alix's grandmother, Lillian Palder, transferred title to them.
We use first names to discuss the individual parties in order to avoid confusion.
Lillian had first granted title in 2009 to Alix and Alix's mother (Lillian's daughter) as trustees of the Lillian Palder Irrevocable Trust. Thus, the 2011 title transfer was completed by transferring the real estate asset from the Lillian Palder Irrevocable Trust to the plaintiffs.
Both 60 Rockwood Street and 50 Rockwood Street were initially purchased in the 1940s by Alix's great-grandparents, Abraham and Bessie Palder, who are also Susan's grandparents. Fifty Rockwood Street was later partitioned into the current 50 Rockwood Street and 44 Rockwood Street. Since the purchase of the properties in the 1940s, several generations of the Palder family have lived at 60 and 44 Rockwood Street, and title to the various parcels has changed hands multiple times. The Whites were granted title to the current 50 and 60 Rockwood Street in 1982 by Susan's father -- one of Abraham and Bessie's sons. Meanwhile, Lillian resided uninterruptedly at 44 Rockwood Street from the 1940s until 2007, when she was moved into an assisted living facility. A paved driveway crossing through 50 Rockwood Street has served as the only means of access to the public way for the occupants of 44 Rockwood Street.
The other son was Lillian's husband.
The 44 Rockwood Street residents had utilized the driveway crossing through the Whites' property unencumbered until the relationship between the two neighbors deteriorated. On January 16, 2013, Lillian filed a miscellaneous case in Land Court claiming record title to 50 Rockwood Street based on her six-decade long uninterrupted, exclusive possession of the land, and also based on allegations of fraudulent registration and conveyance of that parcel of land dating back to events that took place in the 1950s. On February 15, 2013, the defendants in that case, the Whites, filed a motion to dismiss, adducing as proof of Lillian's knowledge that the Whites held title to 50 Rockwood Street, a letter dated May 26, 1993 (1993 letter), signed by Lillian and Susan. Lillian denied knowledge of the 1993 letter. The letter's intent was to "confirm [their] mutual understanding with respect to the boundaries between [their] adjacent properties and the usage of a portion of [the defendants'] property." The 1993 letter also stated that in exchange for a consideration of "$1.00 per year," the residents of 44 Rockwood Street would be granted "a right of way for the usage of the driveway leading to [44 Rockwood Street], inasmuch as this driveway passes through [50 Rockwood Street]." The letter assigned responsibility for the maintenance of the driveway to Lillian.
Lillian challenged the legality of the partition of the initial 50 Rockwood Street property into the current 50 Rockwood Street parcel and 44 Rockwood Street.
In the alternative, the defendants also filed a motion for summary judgment. The Land Court judge decided to consider the defendants' motion as a motion to dismiss.
The 1993 letter also granted Lillian rights to use the parcel at 50 Rockwood Street for "cook-outs, gardening, and other seasonal outdoor activities."
On March 18, 2013, the Land Court judge allowed the motion to dismiss, concluding that the statute of limitations for the fraud allegations had run. The judge also charged Lillian with knowledge of the 1993 letter and its legal implications. Final judgment, which Lillian did not appeal, was entered on March 25, 2013.
The judge concluded that Lillian had knowledge of the title holder of 50 Rockwood Street given that she mortgaged the 44 Rockwood Street property several times, including on May 26, 1993, without mentioning possession of a parcel of land at 50 Rockwood Street.
On May 3, 2013, Alix filed pro se a petition subsequent to registration (S-petition) under G. L. c. 185, §§ 114 et seq., seeking judicial recognition of the 1993 letter as an easement benefiting the registered land of the plaintiffs and burdening the registered title to the Whites' land. On June 10, 2013, the Whites filed an opposition to the S-petition, and on June 26, 2013, they filed a motion to dismiss on the grounds of res judicata. After a hearing on the motion, the filing of supplemental memoranda, and an opposition to the motion by the plaintiffs, the judge allowed the defendants' motion to dismiss on October 9, 2013, pursuant to rule 12(b)(6) with prejudice, because the plaintiffs' S-petition was claim-precluded by the previous miscellaneous case.
Alix is a licensed lawyer who represented her grandmother in the miscellaneous case.
Brian was later added as plaintiff, with his wife acting as counsel for both.
In her affidavit supporting the opposition, Susan alleged that the driveway crossing 50 Rockwood Street is not the only means of ingress and egress for the plaintiffs. Susan presented photographs showing that the plaintiffs built a driveway connecting 44 Rockwood Street to the public way that does not cross the defendants' property.
On appeal from the judgment of dismissal, the plaintiffs argue that claim preclusion does not apply in this case because the two claims did not share the same cause of action or, in the alternative, because their claim falls under the exemptions from claim preclusion for both lack of jurisdiction and fraud.
Discussion. Standard of review. We review the judge's allowance of a motion to dismiss under rule 12(b)(6) de novo. See Housman v. LBM Fin., LLC, 80 Mass. App. Ct. 213, 216 (2011), quoting from Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011) ("[we] accept as true the allegations in the complaint," as well as such inferences as may be drawn therefrom in the plaintiff's favor)." See also Golchin v. Liberty Mut. Ins. Co., 460 Mass. 222, 223 (2011). A complaint withstands a motion to dismiss "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43, 45 (2004), quoting from Nader v. Citron, 372 Mass. 96, 98 (1977). An evaluation of a motion to dismiss includes review of "the allegations in the complaint" which may be complemented with "matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint." Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2000), quoting from 5A Wright & Miller, Federal Practice and Procedure § 1357, at 299 (1990).
Res judicata. Although the motion to dismiss under discussion is predicated on res judicata, which includes both issue and claim preclusion, the parties dispute solely the applicability of claim preclusion. Based on "[c]onsiderations of fairness and efficient judicial administration," Gloucester Marine Rys. Corp. v. Charles Parisi, Inc., 36 Mass. App. Ct. 386, 391 (1994), "[c]laim preclusion makes a valid, final judgment conclusive on the parties and their privies, and prevents relitigation of all matters that were or could have been adjudicated in the action." Kobrin v. Board of Registration in Med., 444 Mass. 837, 843 (2005), quoting from O'Neill v. City Manager of Cambridge, 428 Mass. 257, 259 (1998). Compare Baby Furniture Warehouse Store, Inc. v. Meubles D&F Ltee, 75 Mass. App. Ct. 27, 34 (2009) ("Claim preclusion does not apply where the party lacked the incentive or opportunity to bring the claim in the prior suit"). The bar to litigation stands even though the party precluded seeks to present "different evidence or legal theories to support his claim or seeks different remedies." Gloucester Marine Rys. Corp., supra. More specifically, claim preclusion applies if three elements are present: "(1) the identity or privity of the parties to the present and prior actions; (2) identity of the cause of action; and (3) prior final judgment on the merits." Id. at 390. Given that claim preclusion is an affirmative defense, the movant has the burden to prove the supporting facts. See Carpenter v. Carpenter, 73 Mass. App. Ct. 732, 738 (2009).
Only compliance with the second element is disputed by the plaintiffs in this case. We note briefly, with respect to the first and third element that, as counsel for her grandmother in the miscellaneous case, Alix exercised "substantial control" over the first adjudication, establishing privity of the plaintiffs in the two cases. Bourque v. Cape Southport Assocs., LLC, 60 Mass. App. Ct. 271, 274-275 (2004). In addition, the dismissal of the miscellaneous case pursuant to rule 12(b)(6) qualifies as a judgment on the merits. See Mestek, Inc. v. United Pac. Ins. Co., 40 Mass. App. Ct. 729, 731 (1996) ("Because a motion to dismiss is not one of the specific categories of dismissal which is excluded by the plain language of [Mass.R.Civ.P. 41(b)(3), 365 Mass. 805 (1974)], we view a motion to dismiss under Mass.R.Civ.P. 12(b)(6) as an adjudication on the merits"). See also TLT Constr. Corp. v. A. Anthony Tappe & Assocs., 48 Mass. App. Ct. 1, 10 n.8 (1999) (noting that under Federal law, dismissal based on statute of limitations "ha[s] been considered sufficiently on the merits to bar a subsequent suit under the doctrine of claim preclusion").
The plaintiffs address the third element in one sentence at the end of their brief without referencing any case law supporting their contention.
Lastly, in determining whether the second element is satisfied, we inquire "[w]hether the facts are related in origin or motivation and whether they form a convenient trial unit." St. Louis v. Baystate Med. Center, Inc., 30 Mass. App. Ct. 393, 399 (1991). See Charlette v. Charlette Bros. Foundry, 59 Mass. App. Ct. 34, 45 (2003), quoting from TLT Constr. Corp., supra at 8 ("The statement of a different form of liability is not a different cause of action, provided it grows out of the same transaction, act, [or] agreement, and seeks redress for the same wrong"). Under an alternative approach, we can also "inquire into the commonness" of the facts and evidence required to prove the claims or defenses in both adjudications. Bradford v. Richards, 11 Mass. App. Ct. 595, 599 (1981).
Here, the plaintiffs in this appeal and Lillian, the plaintiff in the original miscellaneous case, sought title to the land and judicial recognition of the easement, respectively, with the same purpose of obtaining continued access to the driveway connecting their property to the public way and usage of the undeveloped parcel for outdoor activities after the relationship with the defendants soured. Compare Heacock v. Heacock, 402 Mass. 21, 24 (1988) (no identity of cause of action where purpose of tort action -- to "redress a legal wrong in damages" -- is not the same as the purpose of a prior divorce action "to sever the marital relationship"). The significant time gap between the allegedly fraudulent registration asserted in the miscellaneous case and the granting of easement rights in the 1993 letter does not, as the plaintiffs claim, undermine a conclusion of identity of cause of action. In the miscellaneous case, the defendants introduced the 1993 letter as evidence that Lillian had knowledge that Susan, not she, possessed title to 50 Rockwood Street. Moreover, the letter was equally instrumental in the judge's conclusion in that case that the statute of limitations could not be tolled until the discovery of the alleged fraudulent registration. The judge concluded that, in light of both the 1993 letter and a concurrent mortgage granted to Lillian that did not include 50 Rockwood Street among the mortgaged premises, Lillian's knowledge that she was not the title owner could be imputed. See TLT Constr. Corp., 48 Mass. App. Ct. at 8 (claim preclusion applies when facts contested by a party in first case were same facts supporting a party's claims in second case, and each time these facts were essential to resolving claim). None of the cases cited by the plaintiffs in their brief is relevant to the current inquiry as to the commonality of facts.
Although we do not judicially determine whether the 1993 letter contained an express easement, we presume this to be the case for the limited purpose of reviewing the allowance of the motion to dismiss.
The plaintiffs also had sufficient opportunity to assert their easement claim in the prior action. Even assuming that Lillian had no memory of signing the 1993 letter and the plaintiffs had no knowledge of the letter's existence until the defendants introduced it as evidence in the miscellaneous case, Lillian could have sought leave to file an S-petition and consolidate it with the miscellaneous case during the time between the February 15, 2013, motion hearing and the Land Court judge's March 18, 2013, decision allowing the motion to dismiss. See Day v. Kerkorian, 61 Mass. App. Ct. 804, 811 (2004) ("It is a requirement that all legal theories supporting a claim be presented when the opportunity is available, not preserved for presentation through piecemeal litigation").
Although all three elements of claim preclusion analysis are satisfied, the plaintiffs contend that they should be allowed to pursue their S-petition claim because it falls under one of the exemptions to claim preclusion enumerated in the Restatement (Second) of Judgments § 26 (1982). See Gloucester Marine Rys. Corp., 36 Mass. App. Ct. at 391 ("Since claim preclusion is grounded upon considerations of fairness and efficient judicial administration, the doctrine is not applied rigidly where such interests would not be served").
In particular, the plaintiffs first argue that there is a jurisdictional bar to the Land Court hearing, together, the claim to quiet title, which was filed as an equity claim under the Land Court's jurisdiction pursuant to G. L. c. 185, § 1(k), and the S-petition claim. The plaintiffs base their assertion on the language of G. L. c. 185, § 115, which, along with G. L. c. 185, § 114, establishes the mechanism for bringing S-petitions and motions to change the registration book. According to the plaintiffs, under § 115 the requirement that "[p]etitions and motions filed under this chapter after original registration shall be filed and entitled in the original case in which the decree of registration was entered," prevents the Land Court from hearing the S-petition within the prior equity proceeding, or all claims within the S-petition. The plaintiffs provide no authority for this assertion. Nonetheless, the statutory language in question only concerns itself with preservation of the original docket number and says nothing about barring the consolidation of an S-petition with another pending case. See Commonwealth v. Brown, 431 Mass. 772, 775 (2000) ("When the language of a statute is plain and unambiguous, it must be given its ordinary meaning"). In other words, the fact that facile retrieval of all postregistration petitions and motions is accomplished by filing them under the same docket number as the initial registration of the land, does not preclude consolidation of the petitions with other pending cases in the Land Court -- an action that preserves the record of the original docket number. Again, none of the case law cited by the plaintiffs persuades us to interpret as a prohibition against consolidation the requirement that subsequent actions be easily associated with the original land registration.
None of the cases cited by the plaintiffs is relevant to the question at bar. For example, the statutory bar to a defendant raising a counterclaim in a summary process action, see Fafard v. Lincoln Pharmacy of Milford, 439 Mass. 512, 517 (2003), is unrelated to consolidation of the plaintiff's distinct claims. The plaintiffs here cite another case where a judge overstepped his express jurisdictional boundaries, see Commonwealth v. Clerk of the Boston Div. of the Juvenile Ct. Dept., 432 Mass. 693, 702 (2000). Other cases cited by the plaintiffs include Sterling v. Frederick Leyland & Co., LTD., 242 Mass. 8, 13 (1922) (statute of limitations precludes raising claim that otherwise did not exist at common law); Blanchard v. School Comm. of Westford, 427 Mass. 176, 181 (1998) (claim preclusion not applicable in labor cases where an "independent statutory right" created by Congress is "paramount" to a collective right arrived at by a collective bargaining agreement); Schair v. Duquet, 38 Mass. App. Ct. 970, 971 (1995) (plaintiffs' pleaded purpose for petition for partition did not qualify as proper purpose under statute).
The plaintiffs also argue that they may pursue their claim under the fraud exemption to claim preclusion. See Restatement (Second) of Judgments § 26 comment j (1982). Under this theory, the plaintiffs' failure to pursue their second claim would come as a result of the defendants' concealment of the existence of the 1993 letter during prior interactions with Alix's parents or with the plaintiffs. Thus, according to the plaintiffs, the defendants should not benefit from claim preclusion since the plaintiffs' failure to pursue the easement claim is the result of the defendants' "calculated [steps] to assure the exclusion of the claim from the prior litigation." Roche v. Roche, 22 Mass. App. Ct. 306, 311 (1986).
Preempting the counter argument that Lillian was the other signatory of the 1993 letter, the plaintiffs contend that by the time the miscellaneous case was filed in 2013, Lillian had no memory of signing the letter and that Lillian's family found no letter prior to the filing of the original case, in spite of their diligent search. However, this argument does not suffice to support the fraud exemption. In 1993, when the letter was signed, both Lillian and Susan had knowledge of its contents. The defendants had no duty, and the plaintiffs make no argument to this end, to remind Lillian of the existence of the letter prior to presenting it as evidence in the miscellaneous case. Equally, the defendants cannot have fraudulently withheld the existence of an express easement when they bear no responsibility for Lillian's loss of knowledge of her signing the 1993 letter. See Gloucester Marine Rys. Corp., 36 Mass. App. Ct. at 391-392 (no fraud where the plaintiff was not prevented by the defendant from "acquiring the knowledge" that would have supported his pursuit of the claim that was later subject to claim preclusion).
Accordingly, we affirm the judgment dismissing the S-petition.
The defendant's request for double costs and reasonable attorney's fees is denied.
So ordered.
By the Court (Kantrowitz, Graham & Katzmann, JJ.,),
The panelists are listed in order of seniority.
Justice Graham participated in the deliberation on this case while an Associate Justice of this court, prior to his retirement.
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Clerk Entered: April 1, 2015.