Opinion
10-P-1729
08-09-2011
MARIA SANTOS v. MARIA I. SOUSA & others.
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
In April, 2008, Maria Santos filed this action seeking an accounting of rents collected from four apartments owned in common with her brother, sister, and brother-in-law (defendants), claiming a one-eighth interest in the profits from each of the four properties. Previously, Santos had twice successfully sued one of the defendants (her brother) in the District Court claiming to possess a one-quarter interest in profits generated by two of the four apartments at issue. The defendants moved to dismiss or for summary judgment, contending that Santos's position with regard to her ownership interest in the property was inconsistent with those asserted in the prior proceedings. A judge of the Superior Court agreed and granted summary judgment to the defendants on the basis of judicial estoppel.
There was no abuse of discretion in the judge's application of the equitable principle of judicial estoppel here. See Otis v. Arbella Mut. Ins. Co., 443 Mass. 634, 640 (2005) ('Application of the equitable principle of judicial estoppel to a particular case is a matter of discretion'). At the center of a judicial estoppel claim are two 'fundamental elements': (1) 'the position being asserted in the litigation must be 'directly inconsistent,' meaning ' mutually exclusive' of, the position asserted in a prior proceeding'; and (2) ' the party must have succeeded in convincing the court to accept its prior position.' Id. at 640-641 (internal citations omitted). Here, Santos's claim to a one-eighth interest in the profits from each of the four properties is 'directly inconsistent' with the position she previously took in the District Court. In that case, Santos's small claims filings clearly assert that she and each of her three siblings was entitled to one-quarter of the profits generated by two of the four apartments. Consonant with this position, Santos's small claims complaint expressly claims an entitlement to $2,763, or one-quarter of the $11,050 of rental income collected. Moreover, the complaint suggests an understanding that Santos lacked an interest in the remaining two apartments, stating '125 & 127 are owned by Ines & Manuel Sousa'. Santos was successful in that suit, and won a judgment based on a one quarter interest. Given these facts, we discern no abuse of discretion in the judge's refusal to allow Santos to adopt a contrary position to that previously asserted and to avoid creating 'the perception that either the first or the second court was misled.' Id. at 641, quoting from New Hampshire v. Maine, 532 U.S. 742, 750 (2001).
That Sousa understanding is further supported by Sousa's answers to interrogatories in which she states, with regard to units 129 and 131, that 'all parties understood that Jose Chaves would manage the two apartments . . . and render an accounting to me' but claims no 'understanding' that an accounting might be due with regard to units 125 and 127.
Judgment affirmed.
By the Court (Berry, Trainor & Vuono, JJ.),