Opinion
21-P-742
06-06-2022
ANTONIO M. BRANCO v. JERALD M. GUNNER & another. [1]
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
A judge of the Superior Court, sua sponte and prior to service, dismissed a complaint filed by the plaintiff against the defendants on the basis that there were two prior actions pending. See Mass. R. Civ. P. 12 (b) (9), as amended, 450 Mass. 1403 (2008). On the plaintiff's appeal, we affirm.
Mass. R. Civ. P. 12 (b) (9) states:
"Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: . . . [p]endency of a prior action in a court of the Commonwealth."
We review de novo a judge's ruling on a motion to dismiss under Mass. R. Civ. P. 12 (b) (9). See Okoli v. Okoli, 81 Mass.App.Ct. 381, 384 (2012). "Rule 12 (b) (9) provides for the dismissal of a second action in which the parties and the issues are the same as those in a prior action still pending in a court of this Commonwealth. The rule prohibits the long-barred practice of claim-splitting." Lyons v. Duncan, 81 Mass.App.Ct. 766, 770-771 (2012), quoting M.J. Flaherty Co. v. United States Fid. & Guar. Co., 61 Mass.App.Ct. 337, 339 (2004). "Dismissal under [rule 12 (b) (9)] is proper when the same parties are involved in two actions, one begun before the other, and [i]t is apparent from the face of the present complaint . . . that all the operative facts relied on to support the present action had transpired prior to the commencement of the first action" (emphasis added; quotation and citation omitted). Gold Star Homes, LLC v. Darbouze, 89 Mass.App.Ct. 374, 377 (2016).
On December 23, 2019, the plaintiff filed his first complaint against the defendants, alleging, among other things, claims in the nature of legal malpractice and negligence arising from the defendants' representation of him in a criminal case. At the time the judge dismissed the present complaint, a motion to dismiss the plaintiff's first complaint was under advisement. On February 8, 2021, the plaintiff filed his second complaint against the defendants, again arising from their representation of him in the criminal case. At the time the judge dismissed the present complaint, the second complaint was still pending.
In the present complaint, the plaintiff realleged many of the facts and claims that he previously set forth in his previous but still pending complaints. Specifically, in all three complaints the plaintiff asserted claims for malpractice, negligence, agency, attachment, trustee process, reach and apply, injunctive relief, and treble damages.
In dismissing this complaint, the judge properly concluded that the complaint and the "two previously filed actions involve the same parties and arise from the same set of facts." The judge explained that "all of the operative facts relied upon to support [the complaint at issue] had transpired before commencement of the first action." And in denying the plaintiff's motion for reconsideration, the judge ruled that "[t]he relationship between [the parties] gave rise to the claims asserted in the two previously filed actions, as well as this action."
We note that the plaintiff's notice of appeal does not extend to the denial of his motion for reconsideration.
We conclude that the judge properly dismissed the complaint at issue under Mass. R. Civ. P. 12 (b) (9) because the parties and issues are the same as those in two prior pending actions. Put another way, the complaint was properly dismissed because the practice of "claim splitting" is prohibited by the rule. See Lyons, 81 Mass.App.Ct. at 770-772.
Judgment affirmed.
The panelists are listed in order of seniority.