ALIX O'CONNELL and BRIAN D. O'CONNELL v. WILLIAM A. WHITE and SUSAN P. WHITE.

This case commenced May 3, 2013 with the filing of a petition subsequent to registration (a so-called “S-case,” see G.L. c. 185, §114 et seq.). Plaintiffs seek judicial recognition of an unregistered 1993 document as an easement benefiting the registered land of the plaintiffs and burdening the registered title to land owned by the defendants.

The plaintiffs, Alix O’Connell and Brian D. O’Connell (“Plaintiffs”) own and reside at 44 Rockwood Street, Boston, Suffolk County, Massachusetts. The Plaintiffs’ property (“Lot 1”) is shown as Lot 1 on a subdivision plan filed with this court’s Suffolk Land Registration District (“District”) as Plan No. 23082-B. Defendants William A. White and Susan P. White (“Defendants”) own and reside at 60 Rockwood Street. Separating 44 Rockwood and 60 Rockwood is an unimproved parcel known as 50 Rockwood, and shown on the 23082-B Plan as Lot 2. Plaintiffs claim an easement for ingress and egress over a portion of Lot 2 to access their Lot 1. Plaintiffs contend that this easement is set forth in a May 26, 1993 letter (“1993 Letter”) from Lillian Palder to defendant Susan White.

On March 25, 2013, the court (Piper, J.) entered a judgment dismissing Land Court Miscellaneous Case No. 13 MISC 475662 (GHP), Palder v. White, which concerned the same properties. In the earlier filed action (the “Miscellaneous Case”), the plaintiff, Lillian Palder (who is Plaintiffs’ predecessor in title as owner of Lot 1) sought, on a variety of theories, to establish a title to Lot 2. The reasons for the court’s dismissal of the Miscellaneous Case were laid on the record from the bench, and reflected in a docket entry dated March 18, 2013. [Note 1] Of import here, in its ruling the court relied on the existence of the 1993 Letter to determine that Lillian Palder, who was a party to that letter, was aware not later than 1993 that she did not hold title to Lot 2. That awareness cemented the court’s ruling that Lillian Palder waited far too long to press her title claims to Lot 2, and that the Miscellaneous Case was time-barred. No party to the Miscellaneous Case appealed from the judgment, nor filed any request to alter or reopen it. The March 25, 2013 judgment became final prior to the commencement of this pending S-case.

On July 31, 2013, I held a hearing on a motion to dismiss in this S-case; the Defendants contend that I must dismiss it based on principles of res judicata. Following argument, I offered the parties the chance to file supplemental legal memoranda regarding the timeliness of this action under relevant statute(s) of limitations. Upon receipt of a supplemental memorandum by each party, I took the matter under advisement.

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I treat the instant motion as seeking dismissal under Mass. R. Civ P. 12(b)(6). [Note 2] In deciding a motion to dismiss under rule 12(b)(6), the court accepts as true all well-pleaded allegations in the complaint, and all reasonable inferences that may be drawn from those allegations. See Curtis v. Herb Chambers 1-95 Inc., 458 Mass. 674 , 676 (2011). The court will then examine the complaint to determine there are “factual ‘allegations plausibly suggesting (not merely consistent with)’ an entitlement to relief[.]” Iannacchino v. Ford Motor Co., 451 Mass. 623 , 636 (2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). “When, as here, the defense of res judicata has been raised, the court compares the claims and allegations in the complaint to the record in the case alleged to be res judicata, and takes judicial notice of the docket entries, rulings, and contents of other papers filed in the previous action.” See Boutin v. Zoning Bd. of Appeals of Plymouth, 21 LCR 163 , 163-64 (2013) (Misc. Case No. 12 MISC 459006) (Long, J.) and cases there cited.

The familiar standards for res judicata are described in Kobrin v. Board of Registration in Med., 444 Mass. 837 , 843-44 (2005): “The term ‘res judicata’ includes both claim preclusion and issue preclusion.” Id. at 843. “Claim preclusion makes a valid, final judgment conclusive on the parties and their privies, and prevents relitigation of all matters that were or could have been adjudicated in the action.” Id. “The invocation of claim preclusion requires three elements: ‘(1) the identity or privity of the parties to the present and prior actions, (2) identity of the cause of action, and (3) prior final judgment on the merits.’” Id. (internal citations omitted). “[I]ssue preclusion ‘prevents relitigation of an issue determined in an earlier action where the same issue arises in a later action, based on a different claim, between the same parties or their privies.’” 444 Mass. at 843 (internal citation omitted). The elements of issue preclusion are “(1) there was a final judgment on the merits in the prior adjudication; (2) the party against whom preclusion is asserted was a party (or in privity with a party) to the prior adjudication; ... (3) the issue in the prior adjudication was identical to the issue in the current adjudication[; and (4)] the issue decided in the prior adjudication must have been essential to the earlier judgment.” Id. at 843-44 (internal citations omitted).

There is no dispute that the plaintiffs in this case are in direct privity with the plaintiff in the Miscellaneous Case, Lillian S. Palder (see note 6). Testing whether the remaining essential elements of a defense of prior adjudication exist, I consider first whether the judgment entered in the Miscellaneous Case constituted “a final judgment on the merits” for res judicata purposes. In particular, I need to evaluate whether Massachusetts law treats that prior judgment as preclusive, given that one primary ground for its entry was that the Miscellaneous Case was brought beyond the statute of limitations period.

I conclude that the Miscellaneous Case judgment is a final judgment on the merits for purposes of the law of prior adjudication. I start with words of the prior judgment itself. It is plain that this court dismissed the entire complaint brought by Lillian Palder with prejudice. Nothing suggests that the court preserved to the plaintiff any opportunity to return to court to litigate her claims anew, nor that the parties had any such understanding among themselves. Cf. Ajemian v. Yahoo!, Inc., 83 Mass. App. Ct. 565 , 571-572 (no preclusion where “piecemeal adjudication... resulted from an agreement among the parties.”)

The Rules of Civil Procedure also show that the Miscellaneous Case judgment was a final one, “on the merits” for purposes of the law of res judicata. Mass. R. Civ. P. 41 (b) (3) provides that, with certain specified exceptions not implicated here, a judgment of dismissal operates as a judgment on the merits:

(3) Effect. Unless the dismissal is pursuant to paragraph (1) of this subdivision (b), or unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision (b) and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, or for improper amount of damages in the Superior Court as set forth in G.L. c.212, § 3 or in the District Court as set forth in G. L. c. 218, § 19, operates as an adjudication upon the merits. [emphasis added]

Massachusetts courts have relied on this rule to hold that judgments of dismissal under Rule 12(b)(6) are imbued with res judicata effect. Mestek, Inc. v. United Pac. Ins. Co., 40 Mass. App. Ct. 729 , 731 (1996).

I have considered, nevertheless, whether the grounds for the Rule 12 dismissal of the prior case, particularly this court’s heavy reliance on the statute of limitations, call for a different conclusion about the previous judgment’s preclusive effect. I weigh this question because it is possible that, although the plaintiff in Miscellaneous Case, as she pleaded it, undoubtedly brought it too late, I cannot definitively say the same about the S case now before me as it is pleaded (see discussion at note 3). What concerns me, then, is that the dismissal of the first case on statute of limitations grounds might, if res judicata attached to the judgment in that action, cut off a right in the S case which arguably would not be time-barred in the second action, given how Plaintiffs now have drawn their pleadings.

The weight of the decisional law convinces me, however, that a prior judgment dismissing a complaint on statute of limitations grounds must receive preclusive effect if a second action on the same claim arises, even if the second case might prove to have been filed in time. In TLT Const. Corp. v. A. Anthony Tappe & Assocs., Inc., 48 Mass. App. Ct. 1 (1999), Justice Lenk observed that “... dismissal of an action on the basis of Statute of Frauds, statute of limitations, or the defendant’s lack of capacity have been considered sufficiently on the merits to bar a subsequent suit under the doctrine of claim preclusion. Velasquez v. Franz, 123 N.J. 498, 505-513 (1991). Smith v. Russell Sage College, 54 N.Y. 2d 185, 194 (1981). See Quigley, Dismissal of Action on Statute of Frauds and Statute of Limitations Grounds Is Sufficiently Close to Merits to Bar Subsequent Suit Under Doctrine of Res Judicata, 56 St. John’s L. Rev. 763 (1982); Salerno, Civil Procedure – Res Judicata, 22 Seton Hall L. Rev. 1035 (1992).” Id., at n. 8 [emphasis added].

It is not all that unusual for this scenario to present itself. A number of cases have considered instances where an initial suit is dismissed as late-filed under the law of one state, and then a second action arises seeking the same relief, but invoking a longer statute of limitations afforded by a second state. These efforts usually meet with defenses of prior adjudication. The courts that consider those arguments must decide whether the first adjudication, dismissing the initial action on timeliness grounds, receives preclusive effect in the second case, even if the suit would have been in time had it been brought in the second forum initially. Judge Thompson’s enviably lucid treatment of this question in a recent First Circuit case is the best and clearest example. Newman v. Krintzman, U. S. Ct. App., No. 12-1995, slip op. (1st. Cir. July 24, 2013). Applying New York law, because that state was where plaintiffs brought the first and untimely-filed case, the First Circuit concluded that the second action, filed in the federal court in Massachusetts, could not be maintained, because New York law treated the first judgment of dismissal on statute of limitations grounds as “on the merits” for preclusion purposes. This was so even though a Massachusetts statute of limitations, far longer than the New York one, might have availed the plaintiffs had they proceeded with their litigation in Massachusetts from the outset.

Although the result in Newman flows from New York law, nothing suggests that Massachusetts courts approach this question differently. The seminal New York case construed by the Newman court, Smith v. Russell Sage College, 54 N.Y. 2d 185, 194 (1981), was referenced approvingly by Justice Lenk in her footnote 8 in TLT Const. Corp., supra, where she observed that judgments dismissing on statute of limitations grounds have been treated as having preclusive effect. I distill from these authorities that a prior judgment of a Massachusetts court, dismissing a case as brought outside the statute of limitations, must be treated as “a final judgment on the merits” when the same or similar claim, arising out of the same transactions or occurrences, and seeking the same or closely related relief (see discussion below), is presented in a second Massachusetts action, pleaded in a way which might not also be time barred. It seems even more appropriate, in fact, to give preclusive effect to a prior adjudication in the same court in the same state, than to an adjudication by a different court in a different jurisdiction. I decide that the Miscellaneous Case judgment constitutes a “final judgment on the merits” for res judicata purposes, and proceed to examine whether, as Defendants urge, the remaining elements of the defense exist here.

The issue left for me to decide is whether the earlier Miscellaneous Case presents the same claim as this S-case. To make this determination, I look to whether “the claims extinguished in the first action and the claims asserted in these proceedings arose out of the same transaction or series of transactions.” Bendetson v. Building Inspector of Revere, 36 Mass. App. Ct. 615 , 619 (1994). “The law of prior adjudication require[s] that ‘all legal theories supporting a claim be presented when the opportunity [is] available.’” Booth v. Augis, 72 Mass. App. Ct. 164 , 169 (2008). If the later action merely presents a different legal theory to advance the claim, the action is barred. See Bendetson, 36 Mass. App. Ct. at 619.

I am convinced that the controlling legal standards require me to dismiss the instant action. The Plaintiffs’ theory that the 1993 Letter was a conveyance of an easement across the Defendants’ land was a theory available to the plaintiff in the prior action, yet not advanced. The plaintiff was required to bring forward all alternative theories in the prior action, and her failure to do so operates as a bar to proceeding on those theories in this case. [Note 3]

In Bendetson, supra, the Appeals Court affirmed a judgment of dismissal based on res judicata, reasoning:

It makes no difference, for claim preclusion purposes, whether Bendetson argues, as he does in these proceedings, that the occupancy permit should not issue because of violations of the “storage” provisions of the Revere zoning ordinance, or whether he argues, as he did in the prior proceedings, that the occupancy permit should not issue because of violations of the provisions of the State building code or the provisions of law relating to the storage of fuel. All of these arguments arise out of and attempt to characterize the same set of operative facts—the actual use of the property in question.

36 Mass. App. Ct. at 619-620. Here, I draw the same conclusion about the Plaintiffs’ attempts to characterize the right to use the disputed property owned of record by the Defendants. It makes no difference that Plaintiffs argue, as they do in this S-case, that they have an easement or license to use Lot 2, or whether they argue, as in the Miscellaneous Case, that they (or their predecessor) has fee title to Lot 2. [Note 4] In both instances, the court is called upon to determine what real property rights Plaintiffs in fact hold in and to the disputed Lot 2. Plaintiffs’ theory in this case, that the 1993 Letter operated as a grant of easement, may be a new legal theory, but it is employed now in support of claims previously made in the Miscellaneous Case--that either title to Lot 2 remained in Lillian Palder or her successors, the Plaintiffs, or that, at least, they enjoy the right to use that lot to serve Lot 1. Although the complaint in the Miscellaneous Case seeks much more than a right of passage, it is the Plaintiffs’ desire to pass over Lot 2 which always has been the engine driving these parties’ litigation.

There is no merit to the Plaintiffs’ argument that the plaintiff in the first case was prevented from using the theory they now press (that the 1993 letter was an easement between the parties to it, and entitled to be registered). Plaintiff say that theory could only advanced in a case subsequent to registration under G.L. c. 185, § 114. As an initial matter, it is not entirely clear that an S-case would not have been a better fit for the prior action itself. It was, after all, an attempt to undo title to a parcel of registered land–to challenge the original decree of registration and to alter, within the land registration system, the ensuing registrations of documents and the certificates of title issued according to those documents. Even ignoring that, and treating the prior case as firmly within the equity jurisdiction of the Land Court under G.L. 185, § 1 (k), [Note 5] there is no merit to the argument that the Land Court would lack subject matter jurisdiction to adjudicate the existence of an unregistered easement agreement binding the title to a parcel of registered land, simply because the case originally was pleaded under section 1(k) of chapter 185, and not under section 114 of the same chapter. That jurisdiction lies exclusively in this court. Nothing prevented the plaintiff in the first case from seeking leave in timely fashion to add a count under section 114, or to file an S petition and have it consolidated with the Miscellaneous Case as initially pleaded while it still was pending. Had the plaintiff in the first case prevailed, she could have obtained full relief in the Land Court; this court well could have fashioned appropriate orders (including orders to the District) to implement the plaintiff’s victory. For this court to refuse dismissal in this second case, based only on the failure to have styled some or all of the first case under G.L. c. 185, §114, would be to exalt form over substance, and would disserve modern rules of pleading and procedure.

Plaintiffs argue that Lillian Palder had neither the opportunity, nor the knowledge, necessary to have articulated their current theory–that the 1993 Letter operated as a conveyance of an easement–in the earlier case. I am not persuaded by these arguments. The 1993 Letter was introduced into the record in the Miscellaneous Case on February 15, 2013, accompanying the Defendants’ motion to dismiss. The initial case management conference was conducted on February 26, 2013, and the hearing on the motion to dismiss was not held until March 18, 2013. In light of these dates, there is no merit to the argument that plaintiff Lillian Palder lacked knowledge of the 1993 Letter in sufficient time to advance the arguments on which the Plaintiffs now rely. Likewise, the allegations that the Defendants somehow “concealed” the existence of the 1993 Letter are without merit. It was the Defendants themselves who produced the 1993 Letter and offered it into the record. More importantly, the 1993 Letter was signed by Lillian Palder, and as she was in the Miscellaneous Case, she is here charged with knowledge of the documents she executed and their legal significance. See Collins v. Huculak, 57 Mass. App. Ct. 387 (2003). [Note 6]

I conclude that this case fits comfortably within the doctrine of res judicata. A fundamental principle of that doctrine is that parties seeking relief may not litigate the same issues piecemeal; they must come forward in a single case with all the viable legal theories and supportive facts then available to them to obtain the relief they ask the court to grant. The law of prior adjudication exists to prevent seriatim litigation. It saves courts and protects defendants from being forced to litigate repetitive cases pushing for the same relief on the same fundamental grounds. At bottom, that is what I determine this second case is–the assertion of an alternative theory, to garner for the Plaintiffs the right they plainly were after the first time around. Then, as now, what the Plaintiffs want is the right to access their house lot by coming across the Defendants’ registered parcel. Because there is no good reason why the claims pressed in this second case were not advanced in the earlier litigation, they are barred.

For the forgoing reasons, I ALLOW the motion to dismiss.

Order of dismissal with prejudice to enter. [Note 7]