CHERYL RAMIEREZ v. B.J.'S WHOLESALE CLUB, INC.

FLYNN, J. Following the dismissal of the plaintiff's complaint against the defendant in the Worcester District Court, and the dismissal of the plaintiff's subsequent complaint against the defendant in the Framingham District Court, the plaintiff appeals the second dismissal to this Appellate Division.

On September 10, 2013, the plaintiff, Cheryl Ramierez ("Ramierez"), filed a complaint against the defendant, B.J.'s Wholesale Club, Inc. ("B.J.'s"), in the Worcester District Court, seeking damages for personal injuries due to the negligence of B.J.'s. In connection with the complaint, Ramierez filed a statement of damages, setting forth $17,046 in damages, noting only special damages in the form of medicals and lost wages. On November 19, 2013, B.J.'s filed a motion to dismiss pursuant to Mass. R. Civ. P., Rule 12(b)(10), for improper amount of damages in excess of the procedural limit of a likelihood of recovery greater than $25,000, as set forth in G.L.c. 218, §19. On January 21, 2014, the Worcester District Court held a hearing on the motion. Following the hearing, the court entered a judgment of dismissal upon B.J.'s motion, finding that there was a likelihood of recovery greater than $25,000.

On February 10, 2014, Ramierez filed a notice of appeal in the Worcester District Court without specifying the type of appeal. Thereafter, neither of the parties took any action with respect to the appeal. To this day, Ramierez has never entered an action in the Superior Court, in keeping with G.L.c. 218, §19A.

Some eleven months later, on January 13, 2015, Ramierez filed a "new" complaint in the Framingham District Court against B.J.'s, alleging the same cause of action, along with a statement of damages setting forth the same $17,046 in damages. The damages on the statement of damages in the Framingham District Court case are identical to the damages recited in the prior Worcester District Court action.

On February 27, 2015, B.J.'s moved to dismiss on two grounds: that the Worcester District Court case was a prior pending action warranting dismissal under Mass. R. Civ. P., Rule 12 (b) (9), or, alternatively, that the Worcester District Court dismissal for improper amount of damages in the District Court as set forth in G.L.c. 218, §19 was binding on the parties in the Framingham District Court as a matter of issue preclusion.

The Framingham District Court held a hearing on B.J.'s motion to dismiss on March 12, 2015. At the hearing, Ramierez hand served a notice of withdrawal of appeal of the case in Worcester and offered it to the court as part of the motion hearing in support of her argument that there was no longer a prior pending action. It does

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not appear that the notice of withdrawal of appeal was ever filed with the Worcester District Court.

At the motion hearing, B.J.'s agreed that if the appeal were in fact dismissed, then the prior pending action argument was moot, but went forward on the matter of issue preclusion.

The Framingham District Court allowed B.J.'s motion, and sent notice to the parties on March 13, 2015. The hearing judge made the following entry:

"After full consideration of the written submissions and arguments of the parties, Defendant's motion is allowed because the court finds that the parties and issues are identical with Worcester District Court Docket # 1362CV1517. The Court finds that the issues were actually litigated in Worcester and the judgment is final for purposes of issue preclusion. As such, dismissal is appropriate under Rule 12(b)(9)."

On April 27, 2015, Ramierez filed a motion for reconsideration of the allowance of B.J.'s motion to dismiss. On May 7, 2015, the Framingham District Court denied the motion for reconsideration. Without holding further hearing, the judge entered an order on the motion to reconsider. Ultimately, the Framingham District Court entered a judgment of dismissal on March 30, 2016. On April 4, 2016, Ramierez filed her notice of appeal of the allowance of the motion to dismiss, the denial of the motion to reconsider, and the entry of the judgment of dismissal.

1. The judicial doctrine of issue preclusion, also known as collateral estoppel, provides that "[w]hen an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim." Fireside Motors, Inc. v. Nissan Motor Corp. in U.S.A., 395 Mass. 366, 372 (1985), quoting Restatement (Second) of Judgments §27 (1982). The purpose of the doctrine is to conserve judicial resources, to prevent the unnecessary costs associated with multiple litigation, and to ensure the finality of judgment. Massachusetts Prop. Ins. Underwriting Ass'n v. Norrington, 395 Mass. 751, 756 (1985).

To establish collateral estoppel or issue preclusion, the asserting party must show that the issue of fact sought to be foreclosed was actually litigated in a prior action between the same parties or their privies and determined by a final judgment, and that the determination was essential to the judgment. Tuper v. North Adams Ambulance Serv., Inc., 428 Mass. 132, 134 (1998); Massachusetts Prop. Ins. Underwriting Ass'n, supra at 753. Issue preclusion applies only to determinations made during proceedings in which the parties had adequate opportunity to litigate the issues decided. Foster v. Evans, 384 Mass. 687, 696 (1981). A judgment is final for purposes of issue preclusion regardless of the fact that it is on appeal. O'Brien v. Hanover Ins. Co., 427 Mass. 194, 201 (1998).

A former adjudication must be raised, if at all possible, in the pleadings or by motion. The burden is on the party who invokes the doctrine to allege that the question in issue was litigated and determined in the prior action. Bell v. Stephens, 403 Mass. 465, 466 (1988).

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The Ramierez Worcester District Court complaint was dismissed after hearing in the Worcester District Court on B.J.'s motion to dismiss for improper amount of damages as set forth in G.L.c. 218, §19, which provides:

"Except as otherwise provided by law, the district court and Boston municipal court departments shall have original jurisdiction of civil actions for money damages. The actions may proceed in the courts only if there is no reasonable likelihood that recovery by the plaintiff will exceed $25,000, or an amount ordered from time to time by the supreme judicial court. Where multiple damages are allowed by law, the amount of single damages claimed shall control."

B.J.'s properly contends that the issue of improper amount of damages was actually litigated and determined by a valid and final judgment, and the finding was essential to the judgment. Therefore, the determination is conclusive in a subsequent action between the parties. Fireside Motors, Inc., supra at 372.

B.J.'s met its burden of proving to the Framingham District Court that the issue it sought to be foreclosed was actually litigated in a prior action between the same parties and that the parties had adequate opportunity to litigate the issues decided. Foster, supra at 696. The Framingham District Court, after hearing, correctly ruled that "the court finds that the parties and issues are identical with Worcester District Court Docket # 1362CV1517. The Court finds that the issues were actually litigated in Worcester and the judgment is final for purposes of issue preclusion. As such, dismissal is appropriate under Rule 12(b) (9)."

The Framingham District Court went further in denying a motion to reconsider and found that: "In this case, the material facts alleged in the plaintiff's complaint filed in Framingham District Court are essentially identical to the facts alleged in the plaintiff's complaint filed in the Worcester District Court. The monetary amounts included in the Statement of Damages filed in Framingham are also the same."

The fact that the Worcester District Court case was possibly technically on appeal at the time of the hearing on the motion to dismiss in Framingham District Court, is not determinative. See O'Brien, supra at 201 (holding that trial court judgment is final and has preclusive effect regardless of fact that it is on appeal). [Note 1]

A full trial on all the merits is not necessary for the doctrine to apply. The law is settled in Massachusetts that "an evidentiary hearing or trial is not required before issue preclusion can apply. The appropriate question is whether the issue was "'subject to an adversary presentation and consequent judgment' that was not 'a product of the

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parties' consent'" Keystone Shipping Co. v. New England Power Co., 109 F.3d 46, 52 (1st Cir. 1997), quoting J. Friedenthal, Civil Procedure §14.11, at 672, 673 (1985) (proceeding had preclusive effect where court "had before it the relevant ... documents" and "read and heard the litigants' opposing views on what meaning and effect should be afforded to those documents"), cited with approval in Jarosz v. Palmer, 436 Mass. 526, 531 (2002).

The Worcester District Court conducted a full hearing where the court had the relevant documents, and heard B.J.'s and Ramierez on the question of whether dismissal was proper under G.L.c. 218, §19. The fact that there was never a trial on the merits is not the standard to consider in the application of issue preclusion. The determination by the Worcester District Court upon B.J.'s motion alleging that "the plaintiff cannot show that there is no reasonable likelihood that recovery by the plaintiff will exceed $25,000, and accordingly, the exercise of jurisdiction by the District Court is improper" was the basis for the judgment of dismissal in that court. B.J.'s has demonstrated that all of the factors are present in order for issue preclusion to apply.

Ramierez further argues that issue preclusion does not apply because the dismissal under G.L.c. 218, §19 is without prejudice. However, the without prejudice nature of a dismissal under the statute has to do with the fact that Ramierez was free to file her action in the Superior Court. The only appropriate court for a subsequent action to be filed is the Superior Court. Such a dismissal by a District Court is with prejudice with respect to refiling in the District Court, as it had been determined that the District Court was not the proper court for procedural purposes.

Ramierez further argues that because she removed the word "permanent" from the description of injury in the body of her Framingham District Court complaint, there was a dramatic change in the element of damages related to the case. Ramierez suggests that by making such a change, the nature of the case, its potential damages recovery, is reduced such that issue preclusion does not apply to the subsequent action. However, the Framingham District Court found that the statements of damages filed with the complaints are identical. Despite the change in the relief sought in the second matter, the judge found "the material facts alleged in the plaintiffs complaint ... are essentially identical," and that "[t]he monetary amounts included in the Statement of Damages ... are also the same." Therefore, the parties and issues are identical, and issue preclusion does apply.

2. In her motion to reconsider and memorandum, Ramierez renewed the arguments that the prior dismissal was in error, because there had never been a hearing on the merits of the case, that the Worcester District Court dismissal was without prejudice, and that the complaint filed in Framingham District Court was a completely different complaint due to the deletion of a prayer for permanent injury so that issue preclusion did not apply. The court ruled correctly and found:

"In this case, the material facts alleged in the plaintiffs complaint filed in Framingham District Court are essentially identical to the facts alleged in the plaintiffs complaint filed in the Worcester District Court The monetary amounts included in the Statement of Damages filed in Framingham are also the same. This Court finds - as did the Court in Worcester - that there remains a reasonable likelihood that recovery by the plaintiff will exceed $25,000."

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The court's order further supported its previous finding that "the parties and issues are identical," and that the issues were actually litigated in Worcester District Court and the judgment is final for purposes of issue preclusion.

Even if the order on the motion to reconsider could be viewed as a sua sponte independent finding by the court under G.L.c. 218, §19 that there is a reasonable likelihood that recovery will exceed $25,000, the Appellate Division of the District Court is not the reviewing court, as G.L.c. 218, §19A provides that an appeal of such a dismissal is to a single justice of the Appeals Court. [Note 2]

Accordingly, the judgment of dismissal and the denial of the motion for reconsideration in the Framingham District Court are affirmed.