Opinion
18-P-1709
04-27-2020
JACQUES SAADE v. WILMINGTON TRUST, NATIONAL ASSOCIATION, trustee, & others.
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
On August 22, 2018, Jacques Saade filed his "Verified Complaint and Request for Injunctive Relief," as well as a motion for endorsement of lis pendens pursuant to G. L. c. 184, § 15. In his complaint, Saade sought to rescind a mortgage that he executed on November 8, 2006. On September 11, 2018, Saade filed a motion for a preliminary injunction, seeking an order barring a foreclosure on real property located at 300 Commercial Street, unit 611, in Boston. On September 13, 2018, the defendants filed a special motion to dismiss pursuant to G. L. c. 184, § 15 (c). On September 27, 2018, a Land Court judge allowed the special motion to dismiss and denied Saade's request for a lis pendens and injunction. From that order, Saade appeals.
The main problem here is that Saade's appeal may not properly be deemed to be from the final judgment insofar as (1) Saade, in his notice, states only that he appeals from "the Court Ruling dated September 27, 2018"; and (2) judgment entered on February 11, 2019, about two months after Saade noticed the appeal, and Saade did not file a new notice after judgment entered. Thus, Saade's notice is insufficiently specific and premature (if deemed to be from the judgment). This is not an appropriate case for us to excuse a premature notice of appeal. See ZVI Constr. Co. v. Levy, 90 Mass. App. Ct. 412, 418 (2016).
If we treat this appeal as a proper appeal from an order allowing a special motion to dismiss pursuant to G. L. c. 184, § 15, we conclude, for all the reasons stated in the thoughtful decision by the Land Court judge, this case is barred by res judicata. See Kobrin v. Board of Registration in Med., 444 Mass. 837, 843 (2005).
Order allowing special motion to dismiss affirmed.
By the Court (Meade, Ditkoff & Englander, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 27, 2020.