BENJAMIN HALL and THERESE HALL [Note 1] v. BENJAMIN BOLDT, MARK BOLDT and BETTY BOLDT, individually and as trustees or persons who allegedly have "conducted business through" COFFIN'S FIELD TRUST, GREEN MEADOWS TRUST, BOLDT FAMILY TRUST, EDGARTOWN MEADOWS TRUST and EDGARTOWN WOODS TRUST; and MICHAEL CARROLL, MARNIE EDWARDS, DONALD MacDONALD, and BETSY MacDONALD and COFFIN'S FIELD TRUST INC. and EDGARTOWN MEADOWS ROAD TRUST, Intervenors

Introduction

Plaintiffs Benjamin and Therese Hall (“the Halls”), residents of Martha’s Vineyard, brought this case seeking two declarations. The first is their request, in their capacity as alleged tenants in common of an undeveloped 40-acre parcel on the Edgartown/West Tisbury line, for a declaration that that property has an express easement over the roads of the nearby Coffin’s Field subdivision. [Note 2] The second is their request, as the alleged owners of separate undeveloped properties in Edgartown, for a declaration that that land has an express easement over the roads of the nearby Edgartown Meadows subdivision, and they themselves have a fee interest in those roads. These interests were allegedly granted by the Boldt defendants [Note 3] at a time when the Boldts allegedly owned or controlled the two subdivisions. The roads in the Coffin’s Field subdivision are currently owned of record by Coffin’s Field Trust Inc. (“CFT”), and the roads in the Edgartown Meadows subdivision by the Edgartown Meadows Road Trust (“EMRT”), neither of which was named as a defendant nor had its ownership interest mentioned by the Halls when they brought this case. Their motions to intervene were granted by this Court over the Halls’ objections.

There are at least two problems with the Halls’ case. First, as discussed more fully below, it depends on a narrative with many missing pieces, and such documents as do exist that are claimed to support that narrative have a number of questionable aspects. Second, the rights of the 40-acre parcel to use the Coffin’s Field subdivision roads are already the subject of a pending Dukes County Superior Court case, [Note 4] (hereafter the “CFT Superior Court case”) and the rights of the Halls to use the Edgartown Meadows subdivision roads are already the subject of two more Dukes County Superior Court actions [Note 5] (with a third involving at least some of the same issues), [Note 6] each of which is also pending (together hereafter referenced as “the EMRT Superior Court case”).

CFT and EMRT have both now moved to dismiss this case pursuant to Mass. R. Civ. P. 12(b)(6), contending there are defects in the Halls’ theories, and Mass. R. Civ. P. 12(b)(9), pendency of a prior action in a court of the Commonwealth. For the reasons set forth below, the defendants’ Rule 12(b)(9) motions are ALLOWED and this case is DISMISSED.

Analysis

“Rule 12(b)(9) provides for the dismissal of a second action in which the parties and the issues are the same as those in a prior action still pending in a court of this Commonwealth.” Okoli v. Okoli, 81 Mass. App. Ct. 381 , 385 (2012) (quoting M.J. Flaherty Co. v. United States Fid. & Guar. Co., 61 Mass. App. Ct. 337 , 339 (2004)). “All operative facts relied on to support the present action [must have] transpired prior to the commencement of the first action.” Zora Enterprises, Inc. v. Burnett, 61 Mass. App. Ct. 341 , 346 (2004). A case remains “pending” so long as a viable appeal exists. See Massachusetts Bread Co. v. Brice, 13 Mass. App. Ct. 1053 , 1054 (1982). I thus begin with a review of the previous actions and compare them with this. See Jarosz v. Palmer, 436 Mass. 526 , 530 (2002) (judge may take judicial notice of court’s records in related actions); Mancuso v. Kinchla, 60 Mass. App. Ct. 558 , 563 (2004).

The plaintiffs in the CFT Superior Court case are Donald and Betsy MacDonald, co-tenants in the 40-acre parcel with the Halls, Michael Carroll and Marnie Carroll, each of whom they named as parties to that case. CFT Superior Court case Complaint at 1 (Oct. 30, 2007). Mr. Hall later added himself as trustee of the Starbucks Hill Trust as an additional party. Halls’ Answer, Cross Claims and Counterclaims (Jan. 31, 2008). The case seeks an appurtenant easement over the Coffin’s Field subdivision roads for the benefit of the 40-acre parcel, alleged to be otherwise landlocked. The true defendant is CFT, the owner of the subdivision roads. The theories for that easement as raised in the complaint are (1) easement by necessity, (2) easement by prescription, and (3) “color of title.” CFT Superior Court case Complaint at 2. The Answer and Counterclaim of Coffin’s Field Trust made the claims at issue expressly broader, seeking a declaration that “defendants-in-counterclaim [the MacDonalds, the Halls, Mr. Carroll and Ms. Edwards], and each of them, and all persons claiming under them, have no estate, right, title, lien or interest in or to the real property [owned by CFT], or any part thereof,” requesting that “all adverse claims to the real property be determined by a decree of this court,” and that final judgment be entered that “the plaintiffs-in-counterclaim [CFT] are the exclusive owners of the ways with the right to exclude others in their attempts to use the ways” and that “defendants-in-counterclaim, their guests, and others seeking to access plaintiff’s-in-counterclaim[’s] respective properties have no right of way or easement to use and travel upon the property absent the permission of the landowners.” Counterclaim and Cross Claim of Defendant Coffin’s Field Trust Inc. at 5-6 (Dec. 17, 2007) (emphasis added). The “express easement” documents that form at least part of the allegations in this case have been produced and referenced in the CFT Superior Court case depositions. [Note 7]

The parties in the EMRT Superior Court action are the Edgartown Meadows Road Trust, the Edgartown Meadows Road Association, the Town of Edgartown, Theresa Hall individually and as trustee of the Forsythia Trust, Benjamin Hall individually and as successor trustee of the Forsythia Trust, Benjamin Hall Jr. and Brian Hall both individually and as trustees of the Ben Tom Realty Trust, and Brian Hall as trustee of the Baron’s Land Trust and Dukes Wood Realty Trust. In brief, the plaintiffs (the Trust and the Town) brought an action against the Halls to stop them from cutting trees along the roads in the Edgartown Meadows subdivision. The Halls asserted they had such a right as a result of their alleged easement over those roads, one appurtenant to Lot 21 and others, both “express and implied” (their origins and basis were not specified), appurtenant to other land they owned “in the vicinity.” Amended Answer and Counterclaims of All Defendants at 2, 4, 7, 9, 16-17, and 26 (Third Defense) (Nov. 15, 2007). The existence and scope of such easements is thus at the center of that action, and the “express easement” documents at issue in this case have also been referenced in the EMRT Superior Court case. See Deposition of Benjamin Lambert Hall, Jr., at p. 301-07 (Feb. 19, 2009).

In this action, the Halls seek to separate out and press one set of easement claims – those based on alleged express easements over both subdivisions’ roads allegedly granted by the prior owners of those subdivisions, the Boldts. The facts behind those Boldt-related “express easement” claims (the alleged execution of a Purchase of Easement and Release of Claim Agreement related to the Coffin’s Field subdivision on December 8, 1986; the execution and recording of a Notice of Contract on December 8, 1986; the alleged execution and delivery of easement agreements on February 7, 1996 (never recorded); and allegedly associated discussions and events) all occurred long before the filing of the Superior Court cases. [Note 8] See Zora Enterprises Inc., 61 Mass. App. Ct. at 346.

The Halls make four arguments in support of their contention that this case is not precluded by the pendency of the earlier ones.

The first, directed at CFT, is a technical one. CFT, they say, did not specifically raise “prior pending action” as an affirmative defense in its answer to the Halls’ complaint and thus has waived that defense. I disagree. CFT’s Twenty-First Affirmative Defense claims the bar of issue and claim preclusion “stemming from other litigation and legal actions and the claims, representations and participation made therein.” Answer and Counterclaim of Coffin’s Field Trust Inc. at 7 (Apr. 14, 2011). While this was not an explicit reference to “prior pending action” or Rule 12(b)(9), it suffices to raise the defense. See Mass. R. Civ. P. 8(f) (“All pleadings shall be so construed as to do substantial justice”).

The second, directed at both CFT and EMRT, is a “standing” contention. Neither CFT nor EMRT was a party to the alleged easement agreements upon which the Halls rely in this action (those parties were the Halls, the Boldts, and their affiliated trusts and other entities) and thus, the Halls say, neither CFT nor EMRT has standing to intervene in an action concerning those alleged easements. Again, I disagree. CFT and EMRT are the current record owners of the roads over which those easements are claimed. They are the ones who will thus be most affected by any judgment concerning those easements. This more than suffices to give them “standing” in this case, as I ruled when I allowed their motions to intervene. See Notice of Docket Entry (May 23, 2011); Mass. R. Civ. P. 24(a) (disposition of action may as a practical matter impair or impede intervenor’s ability to protect interest relating to property or transaction which is the subject of the action); Sullivan v. Chief Justice for Admin. & Mgmt. of the Trial Court, 448 Mass. 15 , 21-22 (2006) (discussing general requirements of standing). Indeed, on the central issue of the existence and scope of the Halls’ easement rights, if any (as opposed to a money judgment for alleged breach of contract, which would only affect the Boldts), CFT and EMRT are the true real parties in interest, “needed for just adjudication.” Mass. R. Civ. P. 19.

The Hall’s third argument, again directed at both CFT and EMRT, is an assertion that Rule 12(b)(9) does not apply because the present case involves persons and entities who are not parties to the prior action – the Boldts and their trusts. Once again, I disagree. The Halls and their claims are certainly at the center of both the prior actions and this one. If they deemed the Boldts, as parties, essential to the adjudication of those claims, [Note 9] they should have joined them in the prior actions. Mass. R. Civ. P. 19. Moreover, it is doubtful that the Boldts are truly essential to this action. The Boldts have no current interest in either subdivision’s roads (all such interests have been deeded to CFT and EMRT), and any monetary liability they may have to the Halls for alleged breach of contract is beyond this court’s subject matter jurisdiction. See G.L. c. 185, s. 1. In any event, litigants may not frustrate the purpose of Rule 12(b)(9) by naming additional parties in a subsequent lawsuit, particularly when they could have been named in the earlier one. See O’Donnell v. O’Donnell, 16 LCR 133 , 134-135 (2008). “Were it otherwise, Rule 12(b)(9) could be easily undermined through the addition of interested parties, seriatim, in successive lawsuits.” Id. See also Yentile v. Howland, 26 Mass. App. Ct. 214 , 216 (1988) (discussing the “salutary and well established rules against claim splitting which are now comprehended within rule 12(b)(9)”) (internal citations and quotations omitted).

Fourth, the Halls contend that Rule 12(b)(9) does not apply because their Boldt-related easement claims are not a part of the Superior Court cases. Once again, I disagree. To begin with, the allegations made and the relief sought in those cases certainly encompass all of the Halls’ potential easement rights, however based. As noted above, in the CFT Superior Court case, CFT explicitly seeks a judgment that the Halls have no easement rights in its subdivision roads whatsoever, and the documents that form at least a part of the Halls’ claims in this case have been produced, and witnesses examined about them, in the CFT Superior Court action. See n. 7, supra. The allegations in the EMRT Superior Court case are similarly broadly made and likewise, the Boldt deeds were also discussed during depositions in that case. See Amended Answer and Counterclaims of All Defendants at 2, 4, 7, 9, 16-17, and 26 (Third Defense) (Nov. 15, 2007) (in which the Halls assert easement rights, both “express and implied,” appurtenant to other land they own “in the vicinity”); see also Deposition of Benjamin Lambert Hall, Jr., at p. 301-07 (Feb. 19, 2009). In any event, Rule 12(b)(9) and its “salutary and well established rules against claim splitting,” preclude any of those alleged easement rights, however based, from being separated out and pressed in a subsequent action. Yentile, 26 Mass. App. Ct. at 216; Guindon Ins. Agency Inc. v. Commercial Union Ins. Co, 15 Mass. App. Ct. 931 , 932 (1983) (“Everything raised on the second action, to the extent it was not simply a carbon copy of the first, should have been the subject of a motion to amend the complaint [in the first action]”).

In sum, this action must be dismissed pursuant to Mass. R. Civ. P. 12(b)(9). This does not, however, preclude CFT and EMRT from pressing their G.L. 231, s. 6F motions should they desire to do so. I make no ruling on those motions pending notification from the defendants as to whether or not such relief is still sought and, if so, the submission of factual support for the fees and expenses so requested.

CFT and EMRT have also moved to dismiss the Halls’ claims pursuant to Mass. R. Civ. P. 12(b)(6), based on asserted defects in those claims. The Purchase of Easement and Release of Claim Agreement (Dec. 8, 1996), for example, had numerous contingencies which had to be satisfied by an agreed deadline, it was agreed that “time [was] of the essence” to the agreement, and the last extension expired November 30, 1990. The alleged easement agreements dated February 7, 1996 have been produced in different versions, with “stand alone” signature pages (i.e. there is no text on the signature pages, only the signatures, and the identical signature page has been stapled to two different versions of a first page). None of them were recorded, raising yet another set of questions, and many key witnesses are allegedly now dead and their files no longer in existence (e.g. Benjamin Boldt, and the attorney who allegedly drafted the documents). In light of my ruling on the Rule 12(b)(9) motions, I need not, cannot, and do not reach the merits of these other arguments.

Conclusion

For the foregoing reasons, this action and all claims, counterclaims and cross-claims asserted therein are DISMISSED. The Halls’ motion to amend their complaint is DENIED since the amendments it seeks to make will not change the result. See Mathis v. Massachusetts Electric Co., 409 Mass. 256 , 264 (1991) (futility of amendment); Mancuso v. Kinchla, 60 Mass. App. Ct. at 572 (2004) (same). Judgment shall enter accordingly.

SO ORDERED.

By the court (Long, J.)