Opinion
21-P-840
02-02-2023
PHILIP M. RYAN & Another[1] v. GARDNER FRANCO-AMERICAN FEDERAL CREDIT UNION & Another.[2]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
The plaintiffs appeal from the dismissal of the claims they asserted in this Land Court action. Like the Land Court judge, we conclude that the Land Court claims are barred by the doctrine of res judicata and affirm their dismissal.
"The term 'res judicata' includes both claim preclusion and issue preclusion. Claim 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." Santos v. U.S. Bank Nat'l Ass'n, 89 Mass.App.Ct. 687, 692 (2016), quoting Kobrin v. Board of Registration in Med., 444 Mass. 837, 843 (2005) . Claim preclusion applies if three elements are met: "(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." Santos, supra, quoting Kobrin, supra. "Causes of action are the same for the purposes of res judicata when they 'grow[] out of the same transaction, act, or agreement, and seek[] redress for the same wrong. . . . [S]eeking an alternative remedy or . . . raising the claim from a different posture or in a different procedural form' does not allow a party to avoid the doctrine of claim preclusion and get a proverbial second bite at the apple" (quotations and citations omitted). LaRace v. Wells Fargo Bank, N.A., 99 Mass.App.Ct. 316, 325 (2021). "We review the allowance of a motion to dismiss de novo." Rosenberg v. JPMorgan Chase & Co., 487 Mass. 403, 408 (2021).
The plaintiffs brought this Land Court action in September 2022, seeking to quiet title of a property located at 45 Barre Road in Phillipston. Their amended verified complaint asserted that the Gardner Franco-American Federal Credit Union's (GFA Federal) 2016 foreclosure sale of the property was invalid, and they sought a declaration that the mortgage was discharged. Previously, in 2017, the plaintiffs had filed a complaint against GFA Federal in the Superior Court, asserting fraud and violation of G. L. c. 93A, based on problems in the title to the property and GFA Federal's foreclosure. GFA Federal asserted various counterclaims, including an action to quiet title, and slander of title. Ultimately, the plaintiffs' Superior Court claims were dismissed on summary judgment on the ground that they were barred by the statute of limitations. In addition, summary judgment was entered in GFA Federal's favor on its counterclaim to quiet title. On appeal, the plaintiffs made no argument on GFA Federal's counterclaim and, citing Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019), a different panel of this court accordingly affirmed the Superior Court judgment without addressing the quiet title claim. See Ryan v. Gardner Franco-American Fed. Credit Union, 96 Mass.App.Ct. 1117 (2020).
The Superior Court suit involved the same parties as this Land Court action, the same foreclosure was at issue, and final judgment entered against the plaintiffs on GFA Federal's quiet title counterclaim. Specifically, GFA Federal sought and obtained a declaration that "GFA Federal Credit Union had, as of April 2016, and currently [has], the right and power to foreclose on the May 30, 2003 first mortgage executed by" the plaintiffs. That the plaintiffs later argued that the foreclosure was invalid because GFA Federal did not own both the note and the mortgage when it foreclosed and that title defects negated the mortgage does not prevent claim preclusion from barring their subsequent claims. The doctrine applies not only to arguments that were actually made, but also to those that could have been made in a prior action, and there is no reason why the plaintiffs could not have pursued their Land Court claims in the Superior Court action. See LaRace, 99 Mass.App.Ct. at 325. Moreover, the plaintiffs had every opportunity to pursue their arguments on appeal from the Superior Court suit; they did not do so, instead failing to challenge in any way the judgment on GFA Federal's quiet title counterclaim. In the circumstances, the plaintiffs cannot now proceed to address the same claim with different arguments in a different forum.
As determined by the Land Court judge, "Twohey has privity with GFA [Federal] as the high bidder" at the foreclosure sale.
We deny GFA Federal's request for appellate fees and costs. See Avery v. Steele, 414 Mass. 450, 455 (1993) ("The determination whether an appeal is frivolous is left to the sound discretion of the appellate court").
Judgment affirmed.
Wolohojian, Englander & D'Angelo, JJ.
The panelists are listed in order of seniority.