KEVIN LUTTRELL, MARYELLEN LUTTRELL, MATTHEW BRACCIO and LISA BRACCIO v. LEO F. BARTOLINI, DAVID EAGLE, THOMAS BHISITKUL, ANDREW DENNINGTON, JR., and PAUL DePRANOS, as they are members of the SOUTHBOROUGH ZONING BOARD OF APPEALS, and WILLIAM DePIETRI, as TRUSTEE of the ABSOLUT REALTY TRUST.

Sometimes, the third time is not a charm. This is the third action by the plaintiffs challenging approvals for a fifteen-unit townhouse development in Southborough. In this latest action, the plaintiffs, who are abutters to a proposed fifteen-unit townhouse development at 15 Oregon Road in Southborough (the “Project”), unsuccessfully requested that the Southborough Building Commissioner (“Building Commissioner”) revoke the Project’s comprehensive permit issued pursuant to G. L. c. 40B on the grounds that it had expired as a result of the failure to record the decision granting the comprehensive permit in the Worcester County South District Registry of Deeds (“Registry”) pursuant to G. L. c. 40A, §11. The plaintiffs appealed the Building Commissioner’s refusal to act to the Southborough Zoning Board of Appeals. (the “Board”) Following the Board’s denial of their appeal, the plaintiffs appealed to this court pursuant to G. L. c. 40A, § 17. Specifically, the plaintiffs argue that the Project’s owner, William DePietri, Trustee of Absolut Realty Trust (“DePietri”), following the issuance of the comprehensive permit in 2010, was required by G. L. c. 40A, §11 to record the Notice of Decision in the Registry. By his failure to do so, the comprehensive permit never became effective and expired when it was not only not recorded, but no substantial use was made of the permit within two years.

The plaintiffs moved for summary judgment pursuant to Mass. R. Civ. P. 56, arguing that the Board erred by not ordering the Building Commissioner to revoke the comprehensive permit, because the comprehensive permit had expired without the Notice of Decision being recorded as required by G. L. c. 40A, §11, and because any extensions of the comprehensive permit granted by the Board were a “nullity” since the comprehensive permit, never having been recorded at the Registry, was not in effect and therefore could not be extended. The defendants, both the Board and DePietri, submitted a joint cross-motion for summary judgment, asserting that nothing in G. L. c. 40B or in the recording requirements set forth in G. L. c. 40A, §11 imposes any obligation to record the Notice of Decision. The defendants also argue that the challenge, based on the failure to record the comprehensive permit is barred by principles of res judicata, as it was raised, or should have been raised, by the plaintiffs in a prior action.

The parties’ cross-motions for summary judgment came before the court for hearing on April 22, 2016, following which the matter was taken under advisement. For the reasons stated below, the plaintiffs’ motion for summary judgment is DENIED, the defendants’ motion for summary judgment is ALLOWED, and accordingly, the action is DISMISSED.

FACTS

The following material facts are found in the record for purposes of Mass. R. Civ. P. 56, and are undisputed for the purposes of this motion:

THE COMPREHENSIVE PERMIT

1. The Board issued a Notice of Decision on October 21, 2010 (“Notice of Decision”) approving an application by DePietri for a comprehensive permit pursuant to G. L. c. 40B, §§20-23, for the construction of a fifteen-unit affordable housing townhouse development at the property at 15 Oregon Road (the “Property”). The Notice of Decision granting a comprehensive permit for the Project was filed with the Southborough Town Clerk on October 22, 2010.

2. The Board also issued a “Certificate of Granting of Comprehensive Permit” (“Certificate”) on October 21, 2010 along with the Notice of Decision. The parties dispute whether the Certificate was filed with the Town Clerk along with the Notice of Decision. [Note 1] The issuance of the comprehensive permit was not appealed. Statement of Agreed Upon Facts (“Facts”) ¶¶ 1-2, Exhibit (“Exh.”) A-B.

3. Neither the Notice of Decision nor the Certificate have ever been recorded with the Registry. Facts ¶ 3.

THE SPECIAL PERMIT and LUTTRELL I

4. Subsequently, instead of going forward with construction of the Project as approved by the issuance of the comprehensive permit, DePietri applied to the Board for a special permit to construct a fifteen-unit age-restricted (55 and over) development on the Property, in lieu of the G. L. c. 40B Project as authorized by the comprehensive permit. The special permit project, as proposed, differed in some respects physically from the approved G. L. c. 40B Project, but remained a fifteen-unit townhouse development. The Board approved the special permit on September 9, 2013.

5. DePietri requested extensions of the G. L. c. 40B comprehensive permit from the Board on various occasions before, during and after the approval process for the special permit. Facts ¶ 4, Exh. C.

6. No granting of an extension has been recorded in the Registry. Facts ¶ 5.

7. The primary purpose of these extensions was DePietri’s intention and preference to proceed with the construction of an age-restricted version of the Project approved pursuant to the special permit issued by the Board on September 9, 2013. Facts ¶ 6.

8. The same plaintiffs as in the present action appealed the Board’s approval of the special permit as issued by the Board on September 9, 2013. In Luttrell v. Southborough Board of Appeals, 13 MISC. 479719 (“Luttrell I”), this court affirmed the issuance of the special permit on March 11, 2015. The plaintiffs appealed this court’s decision in Luttrell I, and their appeal is presently pending before the Appeals Court. Facts ¶ 9.

LUTTRELL II

9. While the appeal of the special permit in Luttrell I was pending, DePietri returned to the Board on August 6, 2015, and applied for what he termed an “insubstantial” change in the comprehensive permit, essentially to conform it to the age-restricted special permit version of the Project, both physically and in terms of the proposed restriction to those age 55 and older. Facts ¶¶ 7-8, Exh. C.

10. On August 26, 2015, the Board approved the proposed changes to the comprehensive permit at a public meeting attended by the plaintiffs, and at which they were represented by counsel, and issued a written decision that was filed with the Town Clerk on August 27, 2015. Facts ¶ 7.

11. On September 15, 2015, the same plaintiffs as in Luttrell I and as in the present action appealed the approval of changes to the comprehensive permit to this court, in Luttrell v. Southborough Board of Appeals, 15 MISC 000365. (“Luttrell II”) The defendants in Luttrell II, DePietri and the Board, filed a motion to dismiss on October 22, 2015. A hearing on the motion to dismiss was held on December 14, 2015. Facts ¶ 7.

12. On December 17, 2015, this court dismissed Luttrell II for lack of subject matter jurisdiction and failure to state a claim pursuant to Mass. R. Civ. P. 12(b)(1) and Mass. R. Civ. P. 12(b)(6) on the grounds that the plaintiffs had failed to file notice of the action with the Town Clerk within twenty days as required by G. L. c. 40A, §17, and that the court lacked jurisdiction to hear the action as an action in the nature of certiorari pursuant to G. L. c. 249, §4.. The plaintiffs did not appeal the decision in Luttrell II. Facts ¶ 7.

THE PRESENT ACTION - LUTTRELL III

13. On September 1, 2015, prior to filing Luttrell II, the plaintiffs requested the Building Commissioner, pursuant to G. L. c. 40A, § 7, to issue a cease and desist order and revoke the Board’s October 21, 2010 Notice of Decision approving the original G. L. c. 40B comprehensive permit. The sole basis of plaintiffs’ request was that DePietri did not record the Notice of Decision or the Certificate at the Registry, and that accordingly, the comprehensive permit failed by reason of never having taken effect. The several extensions granted by the Board therefore also failed, the plaintiffs argued, because the comprehensive permit was not in effect at the time any of the extensions were granted. Facts ¶ 10.

14. On September 3, 2015, the Building Commissioner denied plaintiffs’ enforcement request, ruling that he had no authority to revoke the G. L. c. 40B comprehensive permit and indicating that only the Board had the authority to revoke the comprehensive permit. Facts ¶ 11.

15. Plaintiffs appealed the Building Commissioner’s denial to the Board, and alternatively, requested that the Board revoke the comprehensive permit. Facts ¶ 12.

16. The Board held a hearing on November 9, 2015. Facts ¶ 13.

17. The Board denied the plaintiffs’ appeal. On November 19, 2015, the Board filed its written decision with the Town Clerk. The Board ruled:

Chapter 40A regulations do not apply to Chapter 40B when it pertains to recording a decision. Furthermore, the Board reviewed the conditions for the 2010 Comprehensive Permit in question and determined that there were no conditions in the decision requiring the applicant to record said decision.

Facts ¶¶ 14-15, Exh. G.

18. On November 27, 2015, the plaintiffs filed their complaint in the present matter, appealing the denial of the Board. (“Luttrell III”)

DISCUSSION

“Summary judgment is granted where there are no issues of genuine material fact, and the moving party is entitled to judgment as a matter of law.” Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638 , 643-44 (2002); Mass. R. Civ. P. 56(c). “The moving party bears the burden of affirmatively showing that there is no triable issue of fact.” Id. at 644. In determining whether genuine issues of fact exist, the court must draw all inferences from the underlying facts in the light most favorable to the party opposing the motion. See Attorney Gen. v. Bailey, 386 Mass. 367 , 371 (1982), cert. denied, 459 U.S. 970. Whether a fact is material or not is determined by the substantive law, and “an adverse party may not manufacture disputes by conclusory factual assertions.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ng Bros. Constr., Inc. v. Cranney, supra, at 648. When appropriate, summary judgment may be entered against the moving party and may be limited to certain issues. Community Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).

These cross-motions for summary judgment present the following issues for this court to address: (1) whether the requirement in G. L. c 40A, §11 that decisions of a board of appeals be recorded with a registry of deeds in order to become effective, is applicable to comprehensive permits issued pursuant to G. L. c. 40B; and (2) whether plaintiffs are barred by the principles of res judicata, based on this court’s decision in Luttrell II, from raising in this action the issue of failure to record the comprehensive permit.

RECORDING REQUIREMENT

The Supreme Judicial Court has noted that the starting point in interpreting a statute is the language of the statute. Vining v. Commonwealth, 63 Mass. App. Ct. 690 , 693 (2005) (“We assume that the legislative purpose is expressed by the ordinary meaning of the words used.”). Courts “‘are constrained to follow’ the plain language of a statute when its ‘language is plain and unambiguous,’ and its application would not lead to an ‘absurd result,’ or contravene the Legislature’s clear intent.” Comm’r of Revenue v. Cargill, Inc., 429 Mass. 79 , 82 (1999), quoting White v. Boston, 428 Mass. 250 , 253 (1998). “It is a ‘fundamental principle of statutory construction that in interpreting any particular provision it should be construed as part of a statute as a consistent whole.’” Chelmsford Trailer Park, Inc. v. Town of Chelmsford, 393 Mass. 186 (1984), quoting Walker v. Bd. of Appeals of Harwich, 388 Mass. 42 , 51 (1983); DiGiacomo v. Metropolitan Property & Cas. Ins. Co., 66 Mass. App. Ct. 343 , 346 (2006). “[S]tatutes must be interpreted as enacted and statutory omissions cannot be supplied by court.” Modern Continental Const. Co., Inc. v. City of Lowell, 391 Mass. 829 , 839-840 (1984). Only “[w]here a statute is ambiguous” may courts “look to extrinsic circumstances to determine the intent of the Legislature as to its meaning.” EMC Corp. v. Comm’r of Revenue, 433 Mass. 568 , 570 (2001), quoting Pacific Wool Growers v. Comm’r of Corps. & Tax’n., 305 Mass. 197 , 199 (1940).

The plaintiffs contend that the Board erred by not revoking the comprehensive permit because it has expired as a result of the failure to record the Notice of Decision or the extensions previously granted by the Board. In support of their position, the plaintiffs rely on G. L. 40B, § 21, which states in part: “[T]he board of appeals shall adopt rules, not inconsistent with the purpose of this chapter, for the conduct of its business pursuant to this chapter and shall file a copy of said rules with the city or town clerk. The provisions of section eleven of chapter forty A shall apply to all such hearings . . . Any person aggrieved by the issuance of a comprehensive permit or approval may appeal to the court as provided in section seventeen of chapter forty A.” (emphasis added)

Plaintiffs argue that G. L. c. 40B, § 21 incorporates the entirety of G. L. c. 40A, § 11 into the chapter 40B comprehensive permit process, including the requirement for the recording of decisions, and hence, requires that the decision granting the comprehensive permit be recorded in order to take effect. G. L. c. 40A, §11 provides a detailed procedure for the conduct of public hearings convened under G. L. c. 40A, the Zoning Act. It specifies the manner and content of publication of notice of hearings; the manner of identification of and notice to parties in interest; and it specifies when public hearings may and may not be held. These requirements are contained in the first two paragraphs of the section in its present iteration. Except for corrective amendments in the late 1980s, these first two paragraphs have been unchanged since they were first adopted as part of the revamped Zoning Act in 1975. St. 1975, c. 808. The remainder of the section addresses matters other than the conduct of the hearing itself. The third paragraph, also unchanged except for a corrective amendment in 1979, provides a procedure for review of applications by other town boards or agencies besides the board conducting the public hearing. The fourth paragraph, added in 2008, [Note 2] provides for combining special permit and subdivision hearings before a planning board where applicable. The fifth paragraph provides a procedure for the dissemination and filing with the town clerk of the board’s decision. Finally, the sixth and seventh paragraphs provide, in relevant part, respectively as follows:

No variance, or any extension, modification or renewal thereof, shall take effect until a copy of the decision bearing the certification of the city or town clerk…is recorded in the registry of deeds for the county and district in which the land is located…

A special permit, or any extension, modification or renewal thereof, shall not take effect until a copy of the decision bearing the certification of the city or town clerk…is recorded in the registry of deeds for the county and district in which the land is located…

Prior to an amendment in 2006, the recording requirements of the sixth and seventh paragraphs were combined in a single paragraph. See, St. 2006, c. 205, §9. [Note 3]

As described above, G. L. c. 40A, §11 covers the conduct of the hearings before a board of appeals or special permitting authority, and it covers separately the procedure for generating and filing, and for recording, decisions issued by a board of appeals or special permit granting authority. In doing so, it specifies separate recording requirements for “variances” and for “special permits.” Where the legislature intended to graft an entire section of G. L. c. 40A onto the procedural framework for handling G. L. c. 40B special permits, it has done so explicitly and clearly. Thus, any person aggrieved by the issuance of a comprehensive permit “may appeal to the court as provided in section seventeen of chapter forty A.” G. L. c. 40B, §21. By contrast, section 21 provides, with respect to procedures before the issuance of a decision, only that “[t]he provisions of section eleven of chapter forty A shall apply to all such hearings.” This language does not require a board of appeals to adopt the procedures of G. L. c. 40A, §11 for matters not related to the conduct of the hearings themselves. The recording of an issued decision in a registry of deeds by the successful applicant is not part of the conduct of the hearing by the board or special permit granting authority and thus the recording requirement is not required by G. L. c. 40B, §21 to be incorporated into the comprehensive permit process.

This conclusion is supported by the language of G. L. c. 40A, §11 itself, which has never been amended to incorporate an explicit recording requirement for comprehensive permits, or to generalize the explicit references to the recording requirements for variance and special permit decisions so that comprehensive permits would arguably be included within the ambit of the statute. To the contrary, the 2006 amendment to section 11 separated the combined reference to the recording of variance or special permit decisions into separate paragraphs, providing explicitly for the recording of only “variance” decisions and “special permit” decisions. Since a comprehensive permit is neither a “variance” nor a “special permit”, even if G. L. c. 40B, §21 were to be given an expansive reading, incorporating all of G. L. c. 40A, §11, there could be no valid conclusion that a comprehensive permit must be recorded, because G. L. c. 40A, §11 does not require the recording of a decision authorizing a “comprehensive permit”. If the legislature had intended for all of section 11, including the recording requirement, to apply to decisions granting comprehensive permits, it would have done so expressly. Furthermore, there is no such recording mandate for comprehensive permit decisions in any of the regulations promulgated under G. L. c. 40B or in the Comprehensive Permit Regulations and Guidelines promulgated by the Board. Section 10.2 of the local regulations requires the recording of any Maintenance Agreement that the Board may impose as a condition of the comprehensive permit, but imposes no such requirement with respect to the comprehensive permit itself. From this it is evident that when a recording requirement is intended, it is clearly stated.

The plaintiffs also rely on language in the Certificate of Granting of Comprehensive Permit in support of their argument that recording of the comprehensive permit was required, if not by G. L. c. 40A, §11, then by the Board’s decision. What appears to be generic, boilerplate language at the end of the Certificate provides as follows:

The Board of Appeals also calls to the attention of the owner or applicant that General Laws, Chapter 40A, Section 11 (last paragraph) provides that no permit, or any extension, modification or renewal thereof, shall take effect until a copy of the decision . . . is recorded in the registry of deeds.

This statement is not part of the conditions imposed by the Board in its decision granting the comprehensive permit and thus cannot be construed as an additional condition imposed by the Board. More significantly, the language does not purport to independently impose a requirement that the decision be recorded. It purports to simply inform the successful applicant as to the requirements of G. L. c. 40A, §11. The language is a correct statement of the law requiring the recording of decisions granting variances or special permits. However, as is described above, to the extent that this language purports to state that G. L. c. 40A, §11 requires that a decision granting a comprehensive permit be recorded at a registry of deeds, it is an incorrect statement of the law.

For the reasons stated above, I find and rule that the recording requirements in G. L. c. 40A, §11 do not apply to decisions issuing or approving extensions of comprehensive permits issued pursuant to G. L. c. 40B, §20-23. Although it is unnecessary for me to reach the question whether the plaintiffs are barred from making their claim in this action by principles of res judicata, I address that issue below in the interest of reaching a full and final adjudication of the issues raised in this action.

ISSUE PRECLUSION

“Res judicata is the generic term for various doctrines by which a judgment in one action has a binding effect in another.” Heacock v. Heacock, 402 Mass. 21 , 23 n.2 (1988). The doctrines of “issue preclusion” and “claim preclusion” are encompassed within the term “res judicata.” Kobrin v. Bd. of Registration in Med., 444 Mass. 837 , 843 (2005). The Board and DePietri contend that the plaintiffs are barred from relitigating the issue of non-recording by the doctrine of issue preclusion. Issue 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.” Heacock v. Heacock, supra, at 23 n.2. “In order to preclude a party from relitigating an issue the court must conclude that (1) there was a final judgment on the merits in the prior action, (2) the party against whom preclusion is asserted was a party to that final judgment, (3) the issue in the prior litigation was identical to the current issue, and (4) the issue in the prior litigation was essential to the judgment and actually litigated.” Hauer v. Casper, 20 LCR 125 , 129 (2012), quoting Kobrin v. Bd. of Registration in Medicine, supra, at 843-844; see also Petrillo v. Zoning Bd. of Appeals of Cohasset, 65 Mass. App. Ct. 453 , 457 (2006).

On November 27, 2015, the plaintiffs filed their complaint in the present action, appealing the Board’s refusal to determine that the comprehensive permit had not taken effect because it had not been recorded. The decision in Luttrell II was issued on December 17, 2015, resolved by this court prior to the resolution of this case. “It is the general rule that when two different actions involving the same parties and the same claim are pending at the same time, the final judgment first rendered is entitled to res judicata effect in the second action, regardless of which was commenced first.” Wright Machine Corp. v. Seaman-Andwall Corp., 364 Mass. 683 , 690 (1974). It remains, then, to assess whether the decision issued in Luttrell II meets the requirements for issue preclusion.

Identity of the parties and issues. There is no dispute that the parties in both cases are exactly the same. The same plaintiffs as in the present matter initiated the action against the same defendants in Luttrell II. In Luttrell II, the plaintiffs sought a determination by this court under both G. L. c. 40A, § 17 and G. L. c. 249, § 4 that the Board erred in finding an insubstantial change in the approved G. L. c. 40B Project proposed by DePietri. Among the various factual allegations made by the plaintiffs in their complaint in Luttrell II was that DePietri failed to record either the comprehensive permit or the extensions granted by the Board. [Note 4] This is the precise issue that the plaintiffs rely on in the present action, in which they are appealing the Building Commissioner’s and the Board’s refusal to take zoning enforcement action based on DePietri’s failure to record the Notice of Decision approving the comprehensive permit. The first and second prerequisites for a finding of issue preclusion are accordingly established.

Whether the issue was essential and was actually litigated. “In determining whether an issue was actually litigated for preclusion purposes, courts ask whether the issue was ‘subject to an adversary presentation and consequent judgment that was not a product of the parties’ consent.’” Martinez v. Waldstein, Mass. App. Ct., No. 15-P-455 at 9 (Apr. 29, 2016), quoting Jarosz v. Palmer, 436 Mass. 526 , 531 (2002). The appropriate question is whether the issue was presented to the adverse party with a full and fair opportunity to litigate the issue the first time, or whether other circumstances justify affording the party an opportunity to relitigate the issue. See Comm’r of the Dep’t of Employment & Training v. Dugan, 428 Mass. 138 , 143 (1998); Green v. Brookline, 53 Mass. App. Ct. 120 , 123 (2001); Alba v. Raytheon Co., 441 Mass. 836 , 844 (2004). As long as the party who should have had an interest in litigating the issue in the first case had an ample opportunity to do so, that party may not relitigate the issue in a later case. “[I]t (is) unnecessary…to determine whether [the] claim was actually presented in [the earlier case] because…we believe that this claim was capable of being raised in [the earlier case] and should have been raised in the context of that case.” Bagley v. Moxley, 407 Mass. 633 , 638 (1990).

In Luttrell II, the plaintiffs appealed the Board’s approval of a change in the comprehensive permit, the same comprehensive permit they claim in the present action had never taken effect because of the failure to record the decision in the Registry. The plaintiffs, in paragraphs 12 and 14 of their complaint in Luttrell II, alleged that the original comprehensive permit decision, and the extensions, had not been recorded. Therefore, plaintiffs’ relief requested under both G. L. c. 40A, § 17 and G. L. c. 249, § 4 in Luttrell II was at least partially predicated on their assertion of a failure to record the comprehensive permit and extensions. In Luttrell II, the plaintiffs had a full and fair opportunity to litigate the issue whether those documents should have been recorded. Although, in Luttrell II, the plaintiffs chose to focus primarily on the issue of whether the proposed changes to the comprehensive permit Project were “substantial”, they were obligated to raise in Luttrell II every issue that could serve as a basis for their claim that the Board was not entitled to grant a modification to the comprehensive permit. “[I]t was incumbent on the plaintiffs to present to the court [in the earlier case] all of the legal theories on which they based their claim…The plaintiffs were not entitled to pursue their claim…through piecemeal litigation, offering one legal theory to the court while holding others in reserve for future litigation should the first theory prove unsuccessful.” Id., at 638. Like the plaintiffs in Bagley v. Moxley, supra, who impermissibly sought to litigate their claims of ownership of a private way, one theory at a time in successive lawsuits, the plaintiffs in the present action have impermissibly sought to reserve different theories of their challenge to the validity of the comprehensive permit for successive lawsuits.

“The rule of res judicata is designed to forestall a plaintiff from getting ‘two bites at the apple.’” Anderson v. Phoenix Inv. Counsel of Boston, Inc., 387 Mass. 444 , 452 (1982). To the extent the plaintiffs failed to fully litigate the recording issue in Luttrell II, the court “cannot countenance a plaintiff’s action in failing to plead a theory in [one case] in the hope of later litigating the theory in [another case].” Id.

Finality of the Luttrell II Decision. In order for res judicata to apply, the prior action must be a final judgment on the merits. Kobrin v. Bd. of Registration in Med., supra, at 843-844. Although this court dismissed the G. L. c. 249, §4 certiorari claim for failure to state a claim under Mass. R. Civ. P. 12(b)(6), not reaching the merits of the complaint, such a dismissal operates as an adjudication on the merits. Sousa v. Davenport, 3 Mass. App. Ct. 715 (1975); see Mass. R. Civ. P. 41(b)(3); Isaac v. Schwartz, 706 F.2d 15, 17 (1983) (“Under Massachusetts law, as elsewhere, a dismissal for failure to state a claim, under Mass. R. Civ. P. 12(b)(6), operates as a dismissal on the merits.”). This forecloses the plaintiffs from litigating the recording issue. Likewise, the court dismissed the plaintiffs’ G. L. c. 40A, § 17 appeal for lack of subject matter jurisdiction pursuant to Mass. R. Civ. P. 12(b)(1), after finding that the plaintiffs failed to adhere to the procedural requirements of the statute. Based on that finding, the plaintiffs are unable to recommence the action on the issue of non-recording since no court would have jurisdiction to hear such a claim. The Rule 12(b)(1) dismissal had the practical effect of an adjudication on the merits. Thus, the Order on Defendants’ Motion to Dismiss issued on December 17, 2015, dismissing the plaintiffs’ case in its entirety, operates as a final judgment on the merits.

CONCLUSION

For the foregoing reasons, plaintiffs’ motion for summary judgment is DENIED, defendants’ motion for summary judgment is ALLOWED, and the action is DISMISSED. Pursuant to Mass. R. Civ. P. 56, summary judgment is rendered against the plaintiffs and in favor of the Board and DePietri.

Judgment will enter accordingly.