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Brennan v. Harmon Law Offices, P.C.

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Apr 2, 2012
11-P-276 (Mass. Apr. 2, 2012)

Opinion

11-P-276

04-02-2012

CHRISTOPHER BRENNAN v. HARMON LAW OFFICES, P.C., & 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

The plaintiff's complaint was dismissed on the ground that it was barred by the doctrine of res judicata. He appeals, arguing that the dismissal of his earlier action under Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), should not constitute a prior final judgment on the merits for purposes of res judicata. We affirm.

Background. In July, 2005, to finance the purchase of his home in Scituate (locus), the pro se plaintiff executed a note in the amount of $327,200 payable to American Mortgage Network, Inc. The note was secured by a mortgage of the locus identifying defendant Mortgage Electronic Registration Systems, Inc. (MERS), as the mortgagee and nominee for the lender and its successors and assigns. On April 7, 2008, MERS assigned the mortgage and note to defendant Chase Home Finance, LLC (Chase). Andrew S. Harmon, in his capacity as assistant secretary and vice president of MERS, executed the assignment. The plaintiff defaulted, and Chase initiated foreclosure proceedings. Chase hired both Harmon Law Offices (Harmon Law) and defendant Commonwealth Auction Associates (CAA) to facilitate the foreclosure sale.

On March 10, 2009, the plaintiff filed a pro se complaint in the Superior Court against Chase, Harmon Law, and CAA, alleging that Chase did not hold the note in question and seeking to enjoin the foreclosure sale of the locus (first action). The defendants moved to dismiss under Mass.R.Civ.P. 12(b)(6). A copy of the note was appended to Chase's motion. After a hearing, a Superior Court judge allowed the motions, but granted the plaintiff twenty days to file an amended complaint. The plaintiff did not file an amended complaint. Judgment was entered dismissing the complaint on December 10, 2009. The plaintiff did not appeal.

Andrew S. Harmon was not named individually in the complaint.

Although the plaintiff initially obtained a preliminary injunction enjoining Chase from conducting the foreclosure sale, Chase eventually was allowed to foreclose and sold the locus to the Federal National Mortgage Association (FNMA) on September 18, 2009. Eviction proceedings evidently have been stayed pending the outcome of this appeal.

Instead, on December 15, 2009, the plaintiff filed a second pro se complaint (second action) in the Superior Court against Chase, MERS, FNMA, Harmon Law, and CAA, claiming, inter alia, that MERS never held an interest in the note, that the signature of Andrew S. Harmon for MERS on the assignment to Chase was 'fraudulent,' and seeking damages. The various defendants moved under rule 12(b)(6) to dismiss on grounds of res judicata. After a hearing, a Superior Court judge allowed the dismissal motions, concluding that the second action was barred by the principles of res judicata. This appeal followed.

Discussion. Our review of an allowance of a motion to dismiss is de novo. Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). Three elements are required to bar an action based on res judicata: '(1) the identity or privity of the parties to the present and prior actions, (2) identity of the cause of action, and (3) a prior final judgment on the merits.' Kobrin v. Board of Registration in Med., 444 Mass. 837, 843 (2005), quoting from Franklin v. North Weymouth Coop. Bank, 283 Mass. 275, 280 (1933). On appeal, the plaintiff challenges only the third element and argues that the dismissal of his first action under rule 12(b)(6) should not constitute 'a prior final judgment on the merits' for purposes of res judicata. We disagree.

The other two res judicata elements are met. As to the identity or privity of the parties, Chase, Harmon Law, and CAA were defendants in both the first and second actions. The additional parties named in the second action, MERS (assignor of the mortgage and note to Chase) and FNMA (purchaser of the locus from Chase at the foreclosure auction), both stood in privity with Chase. See Eastman Marble Co. v. Vermont Marble Co., 236 Mass. 138, 148 (1920) (assignment of contract rights carries privity for purposes of res judicata as to all matters arising out of subject contract); Bui v. Ma, 62 Mass. App. Ct. 553, 561-562 (2004) (successor in interest with knowledge of action is privy of transferor for purposes of res judicata).
As to the identity of the cause of action, both the first and second action contend that the assignment of the note to Chase was invalid and that Chase did not have the right to foreclose on the locus. Both actions are derived from the same series of transactions. The fact that the first action sought a declaratory judgment, while the second action sought damages is of no moment. See TLT Constr. Corp. v. A. Anthony Tappe & Assocs., 48 Mass. App. Ct. 1, 8 (1999), quoting from Mackintosh v. Chambers, 285 Mass. 594, 596 (1934) ('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'). Moreover, the doctrine of res judicata precludes relitigating not only the issues raised in the prior action, but the issues that could have been raised. See Anderson v. Phoenix Inv. Counsel of Boston, Inc., 387 Mass. 444, 449 (1982).

'[U]nder Massachusetts law, as elsewhere, a dismissal for failure to state a claim, under Mass.R.Civ.P. 12(b)(6), operates as a dismissal on the merits . . . with res judicata effect.' Mestek, Inc. v. United Pac. Ins. Co., 40 Mass. App. Ct. 729, 731 (1996), quoting from Isaac v. Schwartz, 706 F.2d 15, 17 (1st Cir. 1983). Rule 41(b)(3) of the Massachusetts Rules of Civil Procedure, as amended, 454 Mass. 1403 (2009), provides, in pertinent part, that 'any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party . . . operates as an adjudication upon the merits.' See Mestek, supra. Thus, '[b]ecause a motion to dismiss is not one of the specific categories of dismissal which is excluded by the plain language of the rule, we view a motion to dismiss under Mass.R.Civ.P. 12(b)(6) as an adjudication on the merits.' Ibid. Accordingly, the Superior Court judge correctly ruled that the plaintiff's second action was barred by the doctrine of res judicata.

Judgment affirmed.

By the Court , (Berry, Kafker & Mills, JJ.),


Summaries of

Brennan v. Harmon Law Offices, P.C.

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Apr 2, 2012
11-P-276 (Mass. Apr. 2, 2012)
Case details for

Brennan v. Harmon Law Offices, P.C.

Case Details

Full title:CHRISTOPHER BRENNAN v. HARMON LAW OFFICES, P.C., & others.

Court:COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

Date published: Apr 2, 2012

Citations

11-P-276 (Mass. Apr. 2, 2012)