AMERICO F. JORGE, individually and as EXECUTOR OF THE ESTATE OF JOSE DEFREITAS v. FERNANDA ALEXANDRE

This action was commenced by Americo F. Jorge, individually and as Executor of the Estate of Jose Defreitas (“Plaintiff” or “the Estate”) on April 20, 2010, seeking to rescind a deed dated July 14, 2005 by which Jose Defreitas and his now deceased wife purported to convey their home in Methuen to Fernanda Alexandre (“Defendant”). Plaintiff contends that Defreitas and his wife, neither of whom spoke English, were the victims of fraud and did not realize the consequences of the deed they signed.

A previous action was filed by Jose Defreitas in Essex County Superior Court against the same Defendant on February 22, 2008, seeking to rescind the same deed. That action was dismissed for failure to prosecute on May 14, 2009, after Counsel for Mr. Defreitas failed to attend a status conference. Mr. Defreitas passed away in February of 2009, and his Estate moved to vacate the order of dismissal on December 24, 2009. On January 19, 2010, the Court (Feeley, J.) denied Plaintiff’s motion and dismissed the case with prejudice. On January 28, 2010 the Estate filed a Motion to Reconsider Denial of Motion for Relief from Judgment. That motion was denied by the Court on February 12, 2010. This case was filed in Land Court on April 20, 2010.

This case comes before the court at this time on Defendant’s Motion to Dismiss, filed June 4, 2010 with a supporting Memorandum, Affidavit, and exhibits. Defendant seeks dismissal of the present action on grounds that it is barred under the doctrine of res judicata because of the Superior Court dismissal.

Plaintiff filed his Opposition to Defendant’s Motion to Dismiss on July 12, 2010, arguing that res judicata does not bar this action because there is no privity of parties, and also because a final judgment on the merits was never entered. This motion was argued and taken under advisement on July 15, 2010.

Based on the record, I find the following facts are not in dispute and justify allowing Defendant’ Motion to Dismiss:

1. On February 22, 2008 Jose Defreitas filed an action against Defendant Fernanda Alexandre, seeking to rescind a deed dated July 14, 2005 in which Jose Defreitas and his late wife conveyed their home in Methuen to Fernanda Alexandre (Essex County Superior Court Case No. ESCV2008-00373, Jose Defreitas v. Fernanda Alexandre). Mr. Defreitas alleged in that action that neither he nor his wife spoke or understood English and that the deed was procured by fraud.

2. In early February of 2009, Jose Defreitas passed away. The court was notified and stayed the action for 90 days in order that his Estate could be substituted as plaintiff.

3. On May 14, 2009, the court held a status conference. Counsel for the Estate failed to appear. That same day, the court dismissed the case for failure to prosecute.

4. In September 2009, Plaintiff Americo Jorge became executor of the Estate, and on December 24, 2009, Plaintiff moved to vacate the order of dismissal that had been issued on May 14, 2009.

5. The Superior Court (Feeley, J.) denied Plaintiff’s Motion to Vacate on January 19, 2010, and entered a judgment of dismissal with prejudice that same day.

6. On January 28, 2010 Plaintiff filed a Motion to Reconsider Denial of Motion to Vacate. The court denied the motion on February 12, 2010.

7. On April 20, 2010 Plaintiff filed the present action in the Land Court. Defendant’s Motion to Dismiss was filed on June 4, 2010. The motion was argued and taken under advisement on July 15, 2010.

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ANALYSIS

The term “res judicata” includes both claim preclusion, also known as true res judicata, and issue preclusion, traditionally known as collateral estoppel. Mancuso v. Kinchla, 60 Mass. App. Ct. 558 , (2004). Under the doctrine of collateral estoppel, an issue which was litigated fully in an earlier action cannot be relitigated. See Martin v. Ring, 401 Mass. 59 , 61 (1987) (“[t]he purpose of the doctrine [of collateral estoppel] is to conserve judicial resources, to prevent the unnecessary costs associated with multiple litigation, and to ensure the finality of judgments”). The doctrine of collateral estoppel provides that “when an issue has been ‘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 different claim.’ ” Jarosz v. Palmer, 436 Mass. 526 , 530-531 (2002), (quoting from Cousineau v. Laramee, 388 Mass. 859 , 863 n. 4 (1983)).

To prevail on the defense of res judicata, the defendant must prove that the issues are identical, the parties are the same, and that there was a judgment on the merits by a court of competent jurisdiction. Almeida v. Travelers Insurance Company, 383 Mass. 226 , 229 (1981).

Therefore, to avail itself of the defense of res judicata, the Defendant must first show that the plaintiff was either a party, or in privity with a party, to the prior action. Heacock v. Heacock, 402 Mass. 21 , 23 (1988). In the present case, the prior action was brought by Jose Defreitas. The Plaintiff is in privity with Jose Defreitas because, as the Executor of the Estate of Jose Defreitas, he was the Plaintiff in the previous action who filed both the Motion to Vacate and the Motion to Reconsider. Plaintiff contends that neither he nor the Estate were parties in the previous action, yet there were two motions filed therein by a “Plaintiff” after the death of the original plaintiff, Jose Defreitas, meaning that Americo Jorge, as Executor of the Estate, necessarily was the moving party.

Defendant must also prove that the issue decided in the prior action is identical to the issue presented in the instant action. In his opposition, Plaintiff does not contest that both issues are identical, most likely because both actions seek to rescind the same deed.

Finally, the Defendant must prove that there was a final judgment on the merits in the prior action. Since the previous action was dismissed for failure to prosecute due to Plaintiff’s Counsel’s failure to appear at the status conference, it is an involuntary dismissal, which operates as an entry of default without a judgment. It is generally held that a default does not have preclusive effect on an issue in a subsequent action because no issues have actually been litigated. [Note 1] The Massachusetts Rules of Civil Procedure, and specifically Rule 41 (b)(1), state that dismissal for lack of prosecution is a dismissal without prejudice. However, Mass. R. Civ. P. Rule 41(b)(3) states that a court can specify otherwise and the dismissal will operate as an adjudication upon the merits: in the instant case, Superior Court (Feeley, J.) dismissed the case with prejudice when the Motion to Vacate was denied. The dismissal thereby operated as an adjudication upon the merits under Rule 41(b)(3). [Note 2]

This ruling is consistent with the ruling of the Supreme Judicial Court which stated that, even in the case of a judgment entered by default, there may be some circumstances in which an issue is given preclusive effect in subsequent litigation between the same parties: “[w]e can, for example, envision circumstances in which a litigant may so utilize our court system in pretrial procedures, but nonetheless be defaulted for some reason, that the principle and rationale behind collateral estoppel would apply.” Treglia v. MacDonald, 430 Mass. 237 , 241 (1999). [Note 3]

In the present case, the previous action was dismissed for failure to prosecute because Counsel for the Plaintiff did not appear at the status conference. A later Motion to Vacate was denied, and the case was dismissed with prejudice. In denying the Motion to Vacate, the Superior Court (Feeley, J.) rejected Counsel’s excuse that he had not yet been retained by the administrator of the Estate as a valid reason for not appearing at the status conference. In its decision denying the Motion to Vacate, the court noted that Counsel had multiple ways of avoiding dismissal: Counsel could have made a motion to further continue the stay of the proceedings, or to seek more time to obtain formal authorization for counsel to continue on behalf of the Estate. In addition, the Estate could have authorized an attorney to represent the estate temporarily until the administrator was appointed. He took none of these steps.

Additionally, the court noted that Plaintiff’s counsel never sought leave to withdraw his appearance. The court further relied on a letter submitted to the court, from Plaintiff’s Counsel to Defendant’s Counsel dated March 18, 2009 (almost two months before the case was dismissed), informing the Defendant that Americo Jorge was expected to be appointed as Administrator and be substituted as the plaintiff in interest in that action, and that the Estate planned to pursue that action to the fullest extent. Yet Counsel for Plaintiff never appeared at the status conference.

Finally, the court held that the Motion to Vacate, under Rule 60(b)(6), was not filed within a reasonable time because it was filed over seven months after the case was dismissed. Plaintiff’s subsequent Motion to Reconsider was also denied for the same reasons.

CONCLUSION

In short, while there was no final judgment on the merits of the case in the traditional sense, I hold that it is inconsistent with the Mass. R. Civ. P. 41(b)(3) and with the philosophy of res judicata to allow this case to be relitigated. [Note 4] The purpose of res judicata is to conserve judicial resources, to prevent the unnecessary costs associated with multiple litigation, and to ensure the finality of judgments. See Martin v. Ring, 401 Mass. 59 (1987). Plaintiff had his opportunity to have his day in court, but was denied by his own inaction; therefore, he is barred from relitigating his claim.

For the foregoing reasons, I hereby rule that Defendant’s motion to dismiss is allowed.

Judgment to enter accordingly.

Charles W. Trombly, Jr.

Justice

Dated: July 28, 2010