Opinion
19-P-1843
11-03-2020
Robert A. GERMINARA v. PLUM ISLAND, LLC.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Robert A. Germinara appeals from a judgment issued by a Superior Court judge dismissing his verified complaint after the allowance of Plum Island, LLC's (Plum Island) motion to dismiss pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). We affirm.
Background. This is the second of two appeals related to the ownership and sale of property located at 77 Parker Street in Newburyport (property). The facts underlying the dispute are set out in our decision resolving the first appeal, Germinara v. People's Comprehensive Mortgage, LLC, No. 19-P-1805 (first appeal), and we do not repeat them here. The current complaint alleges as follows.
In 2012 People's Comprehensive Mortgage, LLC (PCM), obtained from Germinara a deed in lieu of foreclosure (DIL) and estoppel affidavit for the property. According to Germinara, he did not sign the documents, and the notarization was fraudulent. He also claims that the DIL did not state adequate consideration and had technical defects rendering it invalid.
In January 2014 Germinara filed a lawsuit against PCM and others (underlying action), claiming among other things that PCM wrongfully foreclosed on the property. A three-week jury-waived trial was held in December 2018. Among the issues raised was whether an attorney for Plum Island materially altered the DIL in an effort to rectify a title defect and facilitate the sale of the property. Germinara sought as a remedy an order recovering title and reconveying the property to him. As of the filing of this case, the trial judge had not issued a decision in the underlying action.
Meanwhile in 2015, PCM's attorney, John Hanna, sought to sell the property to Plum Island. Plum Island is an affiliate of Enpro Services, Inc. (Enpro), a former tenant of the property. Plum Island's signatory, David Cowie, was Enpro's treasurer and was aware of the underlying action.
Plum Island contracted with PCM to purchase the property for $435,000, which Plum Island allegedly knew was far less than its fair market value. Also, in the course of the transaction, Plum Island's attorney, Eben Adams, sought and received authorization from Hanna to make changes to the DIL. Without Germinara's authorization, Adams altered the DIL by adding "Ten" in the blank line for consideration and "5th" in the date above Germinara's signature. Adams also directed that the word "confirmatory" be added to the title. The altered DIL was then recorded in May 2015.
Germinara filed this action in April 2019, raising two claims. In count one Germinara sought a declaratory judgment that the DIL was procured through fraud and had technical defects rendering it void; that PCM never had good title to the property; and that, as a result, PCM could not have conveyed good title to Plum Island. In count two Germinara alleged that Plum Island violated G. L. c. 93A, § 11, by purchasing the property despite knowing that PCM obtained the DIL through fraud, and by making alterations to the DIL without Germinara's permission.
Discussion. We review the allowance of a motion to dismiss under Mass. R. Civ. P. 12 (b) (6) de novo. See Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). "The ultimate inquiry is whether the plaintiff[ ] alleged such facts, adequately detailed, so as to plausibly suggest an entitlement to relief." Greenleaf Arms Realty Trust I, LLC v. New Boston Fund, Inc., 81 Mass. App. Ct. 282, 288 (2012).
We conclude that the declaratory judgment claim was correctly dismissed under the doctrine of issue preclusion. Issue preclusion "prevents relitigation of an issue determined in an earlier action where the same issue arises in a later action, based on a different claim, between the same parties or their privies." Heacock v. Heacock, 402 Mass. 21, 23 n.2 (1988). Here, the trial judge in the underlying action (who was also the motion judge in this action) issued a 103-page decision in May 2019, resolving the issue of whether PCM acquired good title to the property. In particular, the judge found that Germinara voluntarily and intelligently signed the DIL, that the DIL was not fraudulent, that the purported technical defects and alterations were immaterial to the validity of the DIL, and that the DIL legally transferred title to the property to PCM.
Contrary to Germinara's assertion, identity of causes of action is not an element of issue preclusion. See Bellermann v. Fitchburg Gas & Elec. Light Co., 470 Mass. 43, 61 (2014) ("Issue preclusion may apply where the two adjudications involve the same subsidiary findings, even if they involve different ultimate claims").
These are the same issues that Germinara seeks to litigate in this case. Indeed, in the introduction to the complaint, Germinara states that he is requesting a declaration that Plum Island lacks good title "in the event that the [c]ourt determines [in the underlying action that] PCM ... engaged ... in a wrongful foreclosure on" the property. The judge has now determined that PCM did not wrongfully foreclose on the property -- a ruling that we affirmed in the first appeal. Thus, as Germinara had a full and fair opportunity to litigate the title issue in the underlying action, issue preclusion bars the declaratory judgment claim in this case. See Alba v. Raytheon Co., 441 Mass. 836, 842-844 (2004).
Germinara argues that the issue of Plum Island's role in disposing of his personal property was not litigated in the underlying action. Germinara waived this argument, however, by developing it for the first time in his reply brief. See Commonwealth v. Stewart, 460 Mass. 817, 831 (2011). We note also that the complaint contains no allegations pertaining to Plum Island's role, other than a conclusory assertion that Plum Island "through its agents participated in the effort to dispossess Plaintiff of his personal property." See Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008) (conclusory assertions insufficient to withstand motion to dismiss).
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Issue preclusion likewise bars the G. L. c. 93A, § 11, claim because the premise of the claim is that the DIL was obtained through fraud. Where there was no fraud, as the judge determined in the underlying action, Germinara has no viable claim here that Plum Island violated c. 93A. Moreover, even assuming that unresolved issues remain, we agree with the judge that the complaint does not plausibly suggest the existence of a commercial transaction between Germinara and Plum Island. See Rafferty v. Merck & Co., Inc., 479 Mass. 141, 162 n.7 (2018) ("claims under § 11 require ... that there be a commercial transaction between the parties"). While Germinara is correct that privity of contract is not required to maintain a cause of action under § 11, the allegedly unfair or deceptive conduct must still have occurred in the context of some not insignificant business relationship between the parties. See Giuffrida v. High Country Investor, Inc., 73 Mass. App. Ct. 225, 238 (2008). Here, the complaint is void of allegations that there was any buying or selling of goods or services between Germinara and Plum Island. That Cowie previously wanted to purchase the property directly from Germinara does not establish the existence of a commercial transaction. The c. 93A claim was therefore correctly dismissed.
Judgment affirmed.