Opinion
15-P-1362
07-29-2016
RICHARD R. ERRICOLA, receiver, v. RFF FAMILY PARTNERSHIP, LP.
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 plaintiff, Richard R. Erricola, as receiver of Marba Corporation, brought the underlying contempt action against the defendant, RFF Family Partnership, LP, seeking to enforce a Superior Court judge's order that the defendant pay the plaintiff for services rendered as a court-appointed receiver. The contempt action was dismissed on procedural grounds on the defendant's motion. On appeal, the defendant claims it was error to dismiss the contempt complaint without prejudice rather than with prejudice. We affirm.
At the request of the defendant, in October of 2008, the plaintiff was appointed receiver in an action filed by the defendant. In December of 2009, the plaintiff filed a motion requesting an order that the defendant pay the administrative expenses he incurred as a receiver. After an evidentiary hearing, the plaintiff's motion was allowed. The defendant appealed and a panel of this court affirmed that order. RFF Family Partnership, LP v. Marba Corp., 86 Mass. App. Ct. 1116 (2014).
In December of 2014, the plaintiff filed a complaint for contempt alleging that the defendant had failed to pay the fees as ordered. The defendant moved to dismiss the contempt action with prejudice. Among other things, the defendant argued that the plaintiff's contempt action was procedurally defective because Mass.R.Civ.P. 65.3(b), as appearing in 386 Mass. 1244 (1982), required that the contempt action be filed in the underlying receivership action rather than in a separate action for contempt. A judge in the Superior Court agreed, but dismissed the plaintiff's contempt complaint without prejudice and ordered the plaintiff to commence the contempt claim in the receivership action.
On appeal, the defendant claims it was error to dismiss the complaint without prejudice. We disagree. Pursuant to Mass.R.Civ.P. 41(b)(2), 365 Mass. 803 (1974), the judge, on the motion of the defendant, had the discretion to dismiss the plaintiff's complaint for failure to seek an order of contempt in the underlying receivership action as required by rule 65.3(b). Because the judge's order specified that it was without prejudice to refile in the receivership action, the dismissal did not operate as an adjudication on the merits. See Mass.R.Civ.P. 41(b)(3), as amended, 454 Mass. 1403 (2009). See also Monahan v. Washburn, 400 Mass. 126, 128 (1987). Accordingly, refiling of the claim for contempt was not barred by the doctrine of res judicata. See Morgan v. Evans, 39 Mass. App. Ct. 465, 470 (1995).
We are unpersuaded by the defendant's claim that the stipulation of dismissal in the receivership action bars the plaintiff from refiling the contempt claim in compliance with rule 65.3(b). The stipulation of dismissal states:
"Pursuant to Mass.R.Civ.P. 41(a)(1)(ii), the parties that have appeared in this matter -- RFF Family Partnership, LP ('RFF'), Main Street Restaurant Associates, Inc. ('MSRA'), Small Business Loan Source, LLC ('SBLS'), and Richard Erricola -- hereby stipulate to the immediate dismissal of the claims and counterclaims in this action between RFF, MSRA, and SBLS, with prejudice, without costs, and waiving all rights of appeal. This dismissal is not intended to dispose of the receivership aspect of the above matter."
The language of the stipulation is unambiguous. The parties did not agree to dismiss the "receivership aspect of the above matter." See Suffolk Constr. Co. v. Lanco Scaffolding Co., 47 Mass. App. Ct. 726, 729 (1999) ("Contracts that are free from ambiguity must be interpreted according to their plain terms"). In short, we discern no error in the dismissal which ordered the refiling of the contempt claim in the receivership action for adjudication on the merits.
Judgment affirmed.
By the Court (Meade, Rubin & Kinder, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: July 29, 2016.