ESTHER L. STEFFENS and MARY W. STRIPLING v. STEPHEN B. ROWAN, MICHELE A. ROWAN, individually and as Trustee of Old Sea Pines Realty Trust, and JOHN E. PETERS

This action, commenced on November 5, 2008 with the filing of a verified complaint, seeks a declaration that defendants Stephen and Michele Rowan (“Rowans”) have no interest in a parcel of land in Brewster, Massachusetts identified on a 1948 subdivision plan as “Locust Lane East,” and now known as Flying Dragon Road. In a second count, the complaint asks for injunctive relief and damages as a result of a claimed trespass by the defendants. On December 5, 2008, plaintiffs filed a motion to dismiss pursuant to Mass. R. Civ. P. 12(b)(9), contending that an action filed in the Superior Court Department, Barnstable County, Rowan v. Steffens, Civil Action No. 08-531, encompasses all of the issues claimed in the case at bar, and constitutes a prior pending action in another court of the Commonwealth.

Defendants’ motion to dismiss came on to be heard by the court (Piper, J.). After hearing, at which counsel for both sides appeared and argued, and review of the moving and opposing papers, the court now decides the motion, and rules that this action must be dismissed.

Plaintiffs Esther Steffens and Mary Stripling (“Plaintiffs”) have an easement permitting them access across the Rowans’ property, on which the Rowans operate the Old Sea Pines Inn. The Plaintiffs, exercising their rights under the easement, use the driveway of the Old Sea Pines Inn to access their property. On July 21, 2008, the Rowans filed in Barnstable Superior Court a complaint seeking judicial authority to relocate the easement that burdens their property, pursuant to the process announced by the Supreme Judicial Court in M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87 (2004). Specifically, the Rowans look to have the Superior Court approve relocation of the easement to provide access to the Plaintiffs’ property from Route 6A by way of Flying Dragon Road.

During the pendency of the Superior Court action, the Rowans began to improve the proposed new route over Flying Dragon Road. The Plaintiffs filed this case in the Land Court, asserting that the Rowans have no rights in Flying Dragon Road, and seeking trespass damages based on the work undertaken by the Rowans. Defendant John Peters (“Peters”) is the contractor hired by the Rowans to carry out the improvements to Flying Dragon Road.

Mass. R. Civ. P. 12(b)(9) provides for dismissal of an action due to the “[p]endency of a prior action in a court of the Commonwealth.” “On any given claim, plaintiff may only pursue defendant in one action. Courts do not favor the shotgun approach to litigation; nor the splitting of claims, ... a condition Rule 12(b)(9) seeks to prevent....” Smith and Zobel, Rules Practice, §12.17, 2d ed. (2006). A case is properly dismissed under Mass. R. Civ. P. 12(b)(9) when a prior action is pending between the same parties, and “all the operative facts relied on to support the present action had transpired prior to the commencement of the first action.” Zora Enterprises, Inc. v. Burnett, 61 Mass. App. Ct. 341 , 346 (2004) (citing Keen v. Western New England College, 23 Mass. App. Ct. 84 , 85-87 (1986).

The Rowans argue that the case now before this court amounts to claim splitting, and that the essential issue in this Land Court case is the same as that to be determined in the Superior Court action. The Rowans say that the Plaintiffs’ position here is identical to that they have adopted in their affirmative defense in the Barnstable Superior Court action. Steffens and Stripling, although they did not file a counterclaim in the Barnstable Superior Court action, have defended that litigation by arguing that the Rowans have, as a matter of title, no rights to use Flying Dragon Road. The ownership of, and rights to use, Flying Dragon Road is therefore an essential issue to be decided in the Barnstable Superior Court action, as well as in this Land Court case. The rule, as well as principles of judicial efficiency and integrated decision-making, compel the conclusion that this core issue should be decided only once in a single court. Determination of the right (or not) to use Flying Dragon Road is an essential ingredient of the case earlier begun in the Superior Court. That court without doubt has the authority to settle those rights. The Superior Court plainly could also entertain any trespass claims which might arise as a result of a determination that the Rowans lack the right they assert to make use of Flying Dragon Road as an alternative route for the disputed easement.

A contrary conclusion–that the two cases could proceed comfortably on parallel tracks in the two courts–would raise the risk of inconsistent decision making by two courts considering essentially the same central question. Unless this later-filed Land Court case is dismissed, and the entire dispute heard in the Superior Court, there well could be decisions by both courts on the question whether the Rowans have rights in and to Flying Dragon Road, and, as a result, there is risk that the two decisions of the two courts may not come out the same way.

The Plaintiffs argue that the Superior Court could deny the M.P.M. claim of the Rowans without ever reaching the issue of ownership of Flying Dragon Road. Pointing out that one rationale for the decision in M.P.M. Builders was to ensure that easements did not needlessly prevent owners of burdened estates from fully developing their land, Plaintiffs argue that if the Rowans cannot show their property is capable of further development, then they are not entitled to relocate the easement in the first place, and the Superior Court need not reach the issue of ownership and title. Assuming only for the purposes of this motion that the Plaintiffs’ argument is based on a proper reading of M.P.M. Builders, it does not follow that this is any bar to dismissal under Rule 12(b)(9). The mere fact that a court may dispose of a case without addressing every issue implicated does not defeat a 12(b)(9) motion; the gravamen of Rule 12(b)(9) is the presence of the same issues between the same parties, and as pleaded the prior pending Superor Court action calls upon that court to reach and decide the core issue in the instant case, later filed in the Land Court–whether or not the claimed right to use Flying Dragon Road is, as a matter of title, valid.

To decide the trespass claim in this case, the Land Court must determine the rights of the parties in and to Flying Dragon Road. In fact, the Land Court does not have jurisdiction to hear trespass claims that do not involve the determination of disputed questions of title. See G. L. c. 185, § 1(o) (providing Land Court jurisdiction to hear “[c]ivil actions of trespass to real estate involving title to real estate.”(emphasis added)). The dispositive questions in the case at bar are not about the circumstances surrounding the construction of the new drive, but the issues of ownership and title. These are issues common to both actions, and ones that certainly have been in controversy among these same parties before the filing of both actions. The Plaintiffs argue that the facts supporting this action – namely, the construction efforts on Flying Dragon Road – are “operative facts” that did not transpire until after the Superior Court Action had been filed. This argument misconstrues which facts are operative.

Finally, the presence of the Rowans’ contractor, Peters, in the Land Court action does not sufficiently distinguish the two actions to prevent dismissal under Rule 12(b)(9). The trespass claim against Peters does not bring into the litigation any issues or facts not already live in the Barnstable action. The liability of Peters is identical to the liability of the Rowans; he is named simply as their agent or contractor, and it is the Rowans who would be subject to, and bear the brunt of, the judgment that would issue in this Land Court case, should Plaintiffs prevail in it on the merits. Plaintiffs cannot, by adding what is in effect a nominal additional party, succeed in splitting off for a second adjudication in the Land Court the central issue on which they already have taken a firm position in the Superior Court.

It is

ORDERED that this action be DISMISSED as to all parties and claims, without prejudice to advancing the same claims in the Barnstable Superior Court.

Judgment of dismissal to enter accordingly.

So Ordered.

By the Court (Piper, J.).