MISC 16-000242

July 29, 2016

Middlesex, ss.



In this action, Plaintiffs, who reside at 57 Clifton Street in Newton, seek to have this court determine the extent of easement rights (Easement) held by Defendants, who own and reside at abutting property at 20 Westgate Road. This is not the first case about Defendants’ Easement over Plaintiffs’ property. Plaintiff Ana Florian together with Augustin Florian, previously brought action against Defendants in Middlesex Superior Court, which was tried to the court jury-waived, resulting in a detailed written decision after trial, in which the court held in favor of the Coopers. Eventually an Appeals Court decision issued, also in favor of the Coopers. [Note 1]

Apparently dissatisfied with the results, Plaintiffs filed this action three months after the Appeals Court decision issued, asking this court to alter the boundary of the Easement Area by invoking their right to alter it pursuant to M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87 (2004). Plaintiffs filed their two-count complaint on May 4, 2016, seeking in Count I the elimination of a portion of Easement Area at its southern boundary. In Count II, Plaintiffs seek a declaratory judgment that Defendants’ use has extended beyond the Easement boundaries and burdens Plaintiffs’ access to and use of the Easement Area in ways that are legally available to them as owners of the servient estate. Defendants moved to dismiss Plaintiffs’ Complaint on June 13, 2016, pursuant to Mass. R. Civ. P. 12(b)(6), with a request for leave of court to file a motion pursuant to G. L. 231, § 6F, and Mass. R. Civ. P. 11. Defendants argue Plaintiffs’ claims have already been fully litigated in the Previous Litigation, and thus are barred by claim and issue preclusion. Plaintiffs filed an opposition on July 8, 2016, and the court held a hearing on July 12, 2016, at which all parties were heard.

For the reasons discussed below, Defendants’ Motion to Dismiss is ALLOWED.

The following facts as alleged in the Complaint are accepted as true for purposes of the Motion to Dismiss pursuant to Mass. R. Civ. P. 12(b)(6):

1. Plaintiffs Keith Florian and Ana Florian own and reside at 57 Clifton Road in Newton. Defendants Libby Cooper, Joanne Cooper and Susan Cooper own and reside at 20 Westgate Road in Newton.

2. Ana Florian brought suit in Middlesex Superior Court against Defendants and, following trial, an Amended Judgment entered declaring Defendants hold appurtenant easement rights over Plaintiffs’ property, giving them the right “to fill in and maintain the entire easement area to keep it level with their own property … for a driveway, planting and maintaining trees, shrubs, edible and ornamental gardens and plants, a lawn, or any combination thereof; and active and passive recreation and social activities that do not unreasonably disturb the peace of any residents of or lawful visitors to 57 Clifton Road….” (Easement Area). See Florian v. Cooper, Middlesex Superior Court, case no. MICV2011-02431 (July 31, 2014) (Salinger, J.) (Superior Court Action).

a. Part of the Easement is deeded (Deeded Easement Area) and part of the Easement was acquired by prescription (Prescriptive Easement Area).

b. The Amended Judgment was appealed and vacated to the extent it adjudged the Easement granted exclusive use and occupancy of the Easement Areas to Defendants. It was otherwise affirmed in its entirety. See Florian v. Cooper, 89 Mass. App. Ct. 1112 (2016).

3. A row of hemlock trees is located on Plaintiffs’ property and, per the Previous Litigation, constitutes the southern boundary of the portion of the Precriptive Easement Are. The line of hemlock trees bisects the Deeded Easement Area, so a portion of the Deeded Easement Area is located south of the line of hemlock trees.

4. The southern boundary of the Easement Area is not well defined or marked on the ground.

5. Defendants’ plantings and other articles are located on Plaintiffs’ property outside of the Easement Area.

6. At times, the extent of Defendants’ plantings and other articles in the Easement Area makes it difficult to access the Easement Area from Plaintiffs’ property.

In reviewing a motion to dismiss under Mass. R. Civ. P. 12(b)(6) for failure to state a claim, the court accepts as true the factual allegations of the complaint, as well as any favorable inferences which reasonably may be drawn therefrom. Ginther v. Comm'r of Insurance, 427 Mass. 319 , 322 (1998). The court may take into account matters of public record and documents integral to, referred to or explicitly relied on in the complaint, attached or not, without converting the motion to a motion for summary judgment. Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43 , 45 (2004).

I. Res Judicata Bars Plaintiffs’ Claim to Alter the Easement Area

Defendants argue Plaintiffs’ claims are barred by res judicata, while Plaintiffs claim they have a right to ask the court to “alter” the Easement Area, which is separate and apart from the Previous Litigation. Res judicata is the generic term for two doctrines by which a judgment in one action has a binding effect on another and prevents relitigation of claims which have, or should have been fully and finally adjudicated, in a prior proceeding between the same parties. Heacock v. Heacock, 402 Mass. 21 , 23 (1988). In modern terms, res judicata comprises claim preclusion and issue preclusion. Defendants argue both apply in the instant case. Claim preclusion prohibits the same parties from relitigating the same claim that was the subject of an earlier action between the same parties. "Three elements are essential for invocation of claim preclusion: 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." DaLuz v. Dep’t of Corr., 434 Mass. 40 , 45 (2001), citing Franklin v. North Weymouth Coop. Bank, 283 Mass. 275 , 280 (1933). Issue preclusion requires “1) 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; and 3) the issue in the prior adjudication as identical to the issue in the current adjudication.” Tuper v. North Adams Ambulance Serv., Inc., 428 Mass. 132 , 134 (1998). The issue decided in the prior action must also have been essential to the earlier judgment. Id. at 134.

Defendants claim the boundaries of the Easement Area were at issue in the Superior Court Action, and assert the trial judge rendered a final judgment in favor of Defendants that outlined the parameters of the Easement Area in clear and explicit terms. Defendants assert Plaintiffs had ample opportunity to argue, and did argue, the boundaries and scope of the Easement Area in the Superior Court Action, and cannot relitigate those issues in an attempt to modify a prior judgment. Because this court finds Plaintiffs’ claims are barred by claim preclusion, it will address that doctrine without reaching issue preclusion.

a. Identity of the Parties

The first element of claim preclusion, requiring identical parties in the present and prior actions, is satisfied. It is undisputed that the Superior Court Action and the instant action involve the same parties. In addition to the parties to the Superior Court Action, Keith Florian is named in this action. He is the husband of Ana Florian, who was one of the named plaintiff in that action. He provided testimony in that action and was referenced extensively in Judge Salinger’s memorandum of decision.

b. Identity of Cause of Action

A claim is considered to be the same for claim preclusion if it is derived from the same transaction or series of connected transactions. St. Louis v. Baystate Med. Ctr., Inc., 30 Mass. App. Ct. 393 , 399 (1991). The issues before this court are essentially identical to those which were, or could have been, raised in the Previous Litigation.

Plaintiffs in this action initiated the Superior Court Action, seeking a declaratory judgment determining what, if any, easement rights Defendants held over Plaintiffs’ property. At the conclusion of a jury-waived trial, the Superior Court entered judgment in favor of Defendants and declared Defendants had “easement rights over the entirety of a 57-foot by 37- foot by 40-foot triangular portion” of Plaintiffs’ property for uses of filling, planting, gardening, recreation and a driveway. Upon motion, the judgment was later amended to correctly outline the boundaries of the Easement Area, comprising the area of an express easement as well as an area held by the Superior Court to have been established through evidence of prescription at trial. There was further discussion regarding the precise location of the Easement Area in connection with the motion to amend the judgment, which was amended.

In this action, Plaintiffs allege their claim is separate and distinct from those in the Superior Court Action because they are seeking an alteration of the Easement Area in accordance with M.P.M. Builders, LLC v. Dwyer. Plaintiffs state they are not challenging the existence or validity of the Easement, but are, instead, seeking the elimination of the southern boundary of the Easement Area, reducing the dimensions of the total Easement Area. Under M.P.M., a servient estate holder may relocate an easement, subject to certain conditions: “[u]nless expressly denied by the terms of the easement . . . the owner of a servient estate is entitled to make reasonable changes in the location or dimensions of an easement at the servient owner’s expense, to permit normal use or development of the servient estate, but only if the changes do not (a) significantly lessen the utility of the easement, (b) increase the burden of the owner of the easement in its use and enjoyment, or (c) frustrate the purpose for which the easement was created.” M.P.M. Builders, 442 Mass. at 90, citing Restatement (Third) of Property (Servitudes) § 4.8(3) (2000), which the Supreme Judicial Court adopted in M.P.M.

Defendants allege Plaintiffs argued for this exact alteration prior to the issuance of the Amended Judgment in the Superior Court Action. The parties’ briefs filed in the Superior Court Action are not a part of the record here. Whether Defendants have demonstrated that Plaintiffs raised this argument in the prior action, however, has no effect on the resolution of this motion, as Plaintiffs should have raised the argument regarding the location of the southern boundary in the Superior Court Action. The doctrine of res judicata precludes relitigating not only the issue raised in the prior action, but the issues that could have been raised.” Brennan v. Harmon Law Offices, P.C., 81 Mass. App. Ct. 1125 (2012), citing Anderson v. Phoenix Inv. Council of Boston, Inc., 387 Mass. 444 , 449 (1982). Although Plaintiffs characterize their request for relief as an alteration of an easement under the authority of M.P.M. Builders, they concede they are seeking the elimination of a boundary of the easement, thereby reducing the size of the Easement Area, rather than relocating it or altering its configuration. Plaintiffs had the opportunity to, and should have litigated the parameters of the Easement Area in the Superior Court Action, including presenting to the Superior Court their current view with respect to rights under M.P.M. They did not do so, and are barred by claim preclusion from attempting to change the outcome of the Previous Litigation through this action. [Note 2]

c. Final Judgment on the Merits

The Superior Court Action constitutes a final judgment on the merits, satisfying the third prong of claim preclusion. The Superior Court Action was appealed, and affirmed in part and vacated in part by the Appeals Court. There is no appeal pending. Accordingly, Defendants’ Motion to Dismiss is ALLOWED as to Count I.

II. Count II Is Dismissed For Lack Of Subject Matter Jurisdiction

Plaintiffs’ second count seeks a declaratory judgment setting the exact location of the southern boundary on the ground, a determination that Defendants have extended their plantings and other uses outside of the Easement Area, and therefore Defendants’ use of the Easement Area unreasonably burdens Plaintiffs’ own access and use of the Easement Area. As noted at oral argument, this court’s jurisdiction over civil actions of trespass is limited to actions “involving title to real estate.” G. L. c. 185, § 1(o). Only where the title to land is at issue, and must be settled by the court, does a related trespass claim fall within the Land Court’s subject matter jurisdiction. Here, there is no dispute that Defendants hold an easement over Plaintiffs’ property, as determined by the Previous Litigation, and thus there is no title dispute. The Land Court lacks jurisdiction over Count II of Plaintiffs’ complaint and Defendants’ motion to dismiss is ALLOWED as to Count II.

III. Conclusion

Accordingly, Defendants’ Motion to Dismiss is ALLOWED and Plaintiffs’ complaint will be DISMISSED after judgment issues. If Defendants intend to pursue attorney’s fees under G. L. 231, § 6F, or sanctions under Mass. R. Civ. P. 11, they have until August 19, 2016, to so move and serve Plaintiff, who will have fourteen days after their receipt of Defendants’ filing to file an opposition. If the court deems it necessary, the court will schedule a hearing. Judgment will issue after the court determines whether attorneys’ fees or sanctions will issue, if they are sought by Defendants.


[Note 1] The Superior Court Case (MICV2011-02431) Memorandum of Decision issued May 12, 2014. Judgment entered May 14, 2014, and, after hearing, an Amended Judgment issued July 31, 2014. The Amended Judgment was appealed to the Appeals Court in Case 15-P-519, where it was affirmed in large part, by Memorandum and Order Pursuant to Rule 1:28 on March 16, 2016. (Together these cases are sometimes referred to herein as “Previous Litigation.”)

[Note 2] Attached to Defendants’ Motion to Dismiss is a copy of a Verified Complaint for Contempt in the Superior Court Action, which they filed on May 31, 2016, with a hearing having taken place on June 15, 2016. See docket entry dated June 15, 2016, Florian v. Cooper, Middlesex Superior Court, Case No. 2011-MICV-02431. No determination on the contempt action appears on the Superior Court docket.