Opinion
11-P-94
03-06-2012
JOHN P. KENDALL v. HYANNIS RESTORATIONS, INC. & 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
This appeal concerns a question which defendant Gerald Krigman (Krigman) argues was left open by a panel of this court in 2005 in an unpublished decision -- whether he has an interest in real estate formerly owned by defendant Henry Amster (Amster) that is superior to that of plaintiff John P. Kendall (Kendall). See Kendall v. Hyannis Restorations Intl. Sales, Inc., 65 Mass. App. Ct. 1104 (2005). For several reasons, principally the doctrine of law of the case, we agree with the view of several judges of the Superior Court that Kendall's interest in the real estate is superior to that of Krigman. We need not repeat this case's full history, which the appellee adequately stated on pages 5 through 18 of his brief. The present appeal solely concerns the orders entered by two different judges in March and August of 2006 (2006 orders). Each order denied one of Krigman's motions seeking the distribution of the proceeds of the sale of a piece of real property formerly owned by the original defendants in this case. Both judges ruled that a previous order in this case, entered in March of 2002, established that Krigman's interest in this real property was junior to that of Kendall.
Discussion. 1. The March, 2002, order and subsequent appeal. Krigman contends that the March, 2002, order only established that he had priority junior to Kendall as to several automobiles owned by the defendants, but not as to the note he held on the mortgage on the real property owned by the defendants. However, the motion judge, in making the March 2002 order, explicitly ruled that 'any interest that . . . Krigman acquired from Citizens Bank is junior to Kendall's' (emphasis added). In support of this holding, the judge found that Krigman's asserted reason for purchasing the note went 'way beyond the realm of credibility.' In addition, the judge explicitly held that the real reason Krigman purchased it was that 'as a loyal friend, [he] stepped in at Bruce Amster's behest to prevent foreclosure of the business property.' These subsidiary findings, together with the judge's general findings that the defendants and Krigman conspired to deceive the court in order to deprive Kendall of his 'rightful status as a priority creditor,' indicate that the reference to 'any interest' acquired by Krigman being junior to Kendall's was an intentional determination of Krigman's rights as to the real property as well as to the automobiles. Accordingly, the judge who entered the March, 2006, order did not err in so construing it.
Krigman acquired the note from Citizens Bank.
Furthermore, Krigman has already appealed the March, 2002, order and this court has affirmed it. See Kendall v. Hyannis Restorations Intl. Sales, Inc., 65 Mass. App. Ct. 1104 (2005). The matter of priority as to the real property was raised at oral argument before the previous appellate panel; although it was not specifically mentioned in our 2005 memorandum and order, our decision affirmed the March, 2002, order without any qualification. This prior affirmance constitutes 'law of the case' and we will not now disturb it, as none of the exceptions applicable to the 'law of the case doctrine' at the appellate level apply. See King v. Driscoll, 424 Mass. 1, 7-8 (1996).
Under King, appellate courts may only reconsider determinations from previous appeals when '[1] the evidence on a subsequent trial was substantially different, [2] controlling authority has since made a contrary decision of the law applicable to such issues, or [3] the decision was clearly erroneous and would work a manifest injustice.' Id. at 8, quoting from United States v. Rivera-Martinez, 931 F.2d 148, 151 (1st Cir.), cert. denied, 502 U.S. 862 (1991). Krigman has made no effort to meet the first or second prongs and has not made a sufficient showing to meet the third prong.
2. The 2003 orders and law of the case. Any claim by Krigman as to his priority interest in the real property is also barred by the 'law of the case' doctrine at the trial court level. It provides that, once a final judgment is entered, the court may not rule differently on 'an issue or a question of fact or law.' Catalano v. First Essex Sav. Bank, 37 Mass. App. Ct. 377, 384 (1994), quoting from Goulet v. Whitin Mach. Works, Inc., 399 Mass. 547, 554 (1987). However, even in the absence of a final judgment, 'a court or judge is not bound to reconsider a case, an issue, or a question of fact or law, once decided.' Peterson v. Hopson, 306 Mass. 597, 599 (1940). We thus review a decision not to reconsider an issue that has already been decided solely for abuse of discretion. See Conservation Commn. of Falmouth v. Pacheco, 49 Mass. App. Ct. 737, 744-745 n.8 (2000) (judge's refusal to reopen a jurisdictional question 'could be affirmed as well within her discretion under the 'law of the case' doctrine').
Two orders were issued in 2003 that interpreted the March, 2002 order as establishing the parties' priority as to the real property in addition to the automobiles. The first, entered March 13, was a temporary restraining order that prevented Krigman from foreclosing upon the real property. The order consisted of a succinct statement that the motion was 'allowed for the reasons stated' in Kendall's brief on the matter. The first of those stated reasons was that the March, 2002, order held that Kendall's interest in the real property was superior to that of Krigman. Krigman pursued an interlocutory appeal of that order, pursuant to G. L. c. 231, § 118, in which he again argued that the March, 2002, order did not address his interest in the real property. It was unsuccessful and was not preserved for review by a full panel of the Appeals Court.
The second 2003 order, entered August 27, directed the liquidation of all of the defendants' assets, including the real property, and ordered the receiver, after certain expenses, to hold the remainder of the proceeds from the liquidation for future distribution 'in accordance with the priorities previously determined and set forth in this Court's March 19, 2002 Order, unless otherwise modified by subsequent order of this Court.' While this language did leave open the possibility of a modification of the March, 2002, order, presumably on the basis of some new evidence, it also clearly held that the March, 2002, order determined the priorities as to all property owned by defendants. Krigman did not appeal from that order. These two orders constituted the law of the case. We need not decide whether either of the 2003 orders constituted a final judgment, because even if they did not, the 2006 motion judges did not abuse their discretion in following them. ,
Krigman never presented any such evidence prior to the distribution of funds by the receiver. A plain reading of the order indicates that the actual distribution of funds cut off the proviso allowing for later modification of the parties' priority.
We need not reach Kendall's contention that Krigman's claim was moot due to Amster's discharge in bankruptcy, given our disposition of the case.
As we determine that Krigman's appeal is not frivolous, we deny the request for attorney's fees made by Kendall in his brief.
Orders dated March 1 and August 14, 2006, affirmed.
By the Court (Kantrowitz, Rubin & Agnes, JJ.),