MISC 17-000428

November 29, 2017

Dukes, ss.



The plaintiff returns to this court with a claim for an easement by necessity over the defendants' properties to access his property in the town of Aquinnah (the "Town"), formerly known as the town of Gay Head. He also seeks a determination that the defendants, by refusing to grant him an easement, have temporarily taken his property for the period of time that the plaintiff has been deprived of its use. The plaintiff claims that the defendants owe him damages for the temporary taking. If the plaintiff is not entitled to an easement to access his property, he seeks a declaration that he has been permanently deprived of the use of his property and is likewise entitled to damages.

The defendants contend that the plaintiff's property is not entitled to the benefit of an easement in light of the Supreme Judicial Court's decision in Kitras v. Aquinnah, 474 Mass. 132 , cert. denied 137 S. Ct. 506 (2016), which held that lots located in the Town and numbered 189 and above possess no easements by necessity. The defendants now move to dismiss the complaint pursuant to Mass. R. Civ. P. 12(b)(6), on the basis that it is barred by the doctrine of res judicata and therefore fails to state a claim upon which relief can be granted. For the reasons set forth below, the defendants' motion will be ALLOWED.


The following allegations of the plaintiff's complaint are accepted as true for purposes of this motion. See Nader v. Citron, 372 Mass. 96 , 98 (1977). The court also incorporates facts from the official records necessary to the defendants' res judicata defense. See Boyd v. Jamaica Plain Co-op. Bank, 7 Mass. App. Ct. 153 , 157 n.7 (1979) ("[I]n certain circumstances the defense of former adjudication can be presented in a Rule 12(b)(6) context where all of the materials necessary for the decision are official records available to the judge ruling on the motion and not subject to dispute, and can be read together with the complaint").

1. On May 5, 2017, the plaintiff, James J. Decoulos, in a deed from himself in his capacity as trustee of Brutus Realty Trust, (the "Trust") took title individually, with quitclaim covenants to a parcel of land in the Town known as the easterly half of set-off Lot 557 (the "Property") by deed recorded with the Dukes County Registry of Deeds in Book 1438, Page 837. The Property is identified by the Aquinnah Assessors as Parcel 122 on Map 12.

2. The Property was created as a result of the partition of Native American common land previously owned by the Town and approved for sale by the Probate Court of the County of Dukes on December 1, 1878. The lots created by the partition number 174 to 736. [Note 1]

3. The Property is landlocked and without the benefit of an express easement for access to Moshup Trail, the nearest public way in the Town.

4. Prior to Decoulos taking title to the Property individually, Decoulos held title to the Property as trustee of the Trust.

5. The Town owns lot 556, which lies between the Property and Moshup Trail. South Shore Beach, Inc. owns lots 552 and 553 to the west of the Property, and the Vineyard Conservation Society, Inc. owns lots 558 and 559 to the east of the Property.

6. On June 2, 2004, Decoulos and Anthony C. Frangos, as co-trustees of the Trust, filed a complaint in the Land Court, Frangos v. Aquinnah, Misc. Case No. 299511, against the Town and defendants Elizabeth O'Keefe, South Shore Beach, Inc., and Vineyard Conservation Society, Inc. (collectively the "defendants") claiming an easement by necessity over the defendants' properties to access the Property. [Note 2] The Trust also claimed a taking of the Property, alleging that it had been temporarily and permanently condemned as a result of the Trust's inability to access the Property.

7. At the time of the Frangos complaint, litigation in the Kitras case was ongoing, that action having been filed in the Land Court on May 20, 1997, as Misc. Case No. 238738.

8. The plaintiffs in the Kitras case included Maria Kitras, as trustee of Bear Realty Trust ("Bear"), Bear II Realty Trust ("Bear II"), and Gorda Realty Trust ("Gorda"), and Decoulos, as trustee of Bear II and Gorda. Decoulos is married to Kitras.

9. In Kitras, Decoulos and Kitras (and other landowners not parties to this action) litigated claims for easements by necessity to access landlocked set-off lots owned by Bear, Bear II, and Gorda in the Town.

10. On March 9, 2007, the Frangos plaintiffs filed a motion to consolidate the case with Kitras, on the basis that both claims involved common questions of law and fact. On April 2, 2007, a Land Court judge (Lombardi, J.) denied the motion to consolidate.

11. On August 12, 2010, a Land Court judge (Trombly, J.) determined in the Kitras case that the lots owned by Bear, Bear II, and Gorda, were not entitled to the benefit of an easement. [Note 3] The Kitras plaintiffs, including Decoulos in his capacity as trustee of Bear II, appealed.

12. On August 17, 2011, the court (Sands, J.) stayed proceedings in Frangos until a final disposition of Kitras, "with all appeal periods having expired."

13. On April 19, 2016, the SJC affirmed Judge Trombly's judgment and concluded that for lots numbered 189 and above, "the plaintiffs failed to meet their burden of establishing that the commissioners intended to create easements by necessity." [Note 4]

14. On September 22, 2016, Decoulos, purportedly representing the Trust pro se, filed a Motion for Entry of Judgment on Count I of the Frangos complaint. By order dated December 14, 2016, the court (Sands, J.) directed Decoulos to retain counsel because Decoulos, as a non-attorney, could not represent the Trust pro se. The order provided that if Decoulos did not retain counsel within thirty days, the case would be dismissed with prejudice. The court scheduled a status conference for January 10, 2017, to confirm Decoulos's compliance with the order.

15. On December 27, 2016, Decoulos filed a notice of Interlocutory Appeal with the Land Court. On January 4, 2017, the court (Sands, J.) issued a docket entry that informed Decoulos that the appeal was not effective because he did not file it with the Appeals Court in accordance with G. L. c. 231, § 118.

16. On January 10, 2017, the court (Sands, J.) held a status conference at which the Frangos defendants appeared, but Decoulos did not appear. Decoulos did not provide notice to the court that he would not appear. Judge Sands issued a Fifteen Day Nisi Order, returnable January 26, 2017, and a Post-hearing Order to all parties in the case. The Post-hearing Order stated that if the Trust did not timely respond to the Nisi Order, the complaint would be dismissed on January 27, 2017. The Trust did not timely respond to the Nisi Order.

17. On January 23, 3017, the Appeals Court (Sullivan, J.) denied the Trust's Interlocutory Appeal and held that, "[t]here is No Error Meriting Relief from a Single Justice in the Trial Judge's Ruling that the Trust is Prohibited from Appearing in Court Unless Represented by Counsel."

18. On January 27, 2017, the court (Sands, J.) issued a Judgment of Dismissal and dismissed the Frangos complaint with prejudice.

19. On February 6, 2017, Decoulos, still purporting to represent the Trust pro se, filed a motion for relief from the judgment of dismissal. Judge Sands denied the motion.

20. On February 22, 2017, Decoulos, again purporting to represent the Trust pro se, filed a second motion for relief from the judgment of dismissal, which Judge Sands denied, writing in an Order dated February 24, 2017, "Decoulos's second motion for relief from the 2016 Order and the dismissal of this case is DENIED, with prejudice. Decoulos is hereby cautioned that further attempts to relitigate these arguments, which have now already been decided conclusively by this court and the Appeals Court, may be met with sanctions for frivolous conduct."

21. On April 20, 2017, Decoulos's appeal was entered in the Appeals Court.

22. On May 12, 2017, Decoulos, still purporting to represent the Trust pro se, filed a Motion to Substitute Parties in the Appeals Court, having conveyed the Property to himself on May 5, 2017. The Appeals Court denied the motion "without prejudice to renewal in the trial court."

23. On June 12, 2017, Decoulos, still purporting to represent the Trust pro se, filed a Motion to Substitute Parties in the Land Court.

24. On June 16, 2017, Judge Sands denied Decoulos's motion. Judge Sands wrote that, "[t]he court has granted Decoulos numerous opportunities to properly file and be heard in this matter -- and has been exceedingly lenient with him through these proceedings -- yet he has repeatedly failed to take advantage of them." He further concluded:

"In sum, this court finds Decoulos' actions to have caused needless and undue delay to the disposition of this case. Decoulos' delay in filing Frangos' certificate of death and transferring the property is unreasonable and inexcusable, as was his refusal to secure counsel, his previous failure to appear, and his failure to respond to the Nisi Order. Decoulos has acted in bad faith by repeatedly ignoring the orders of this court and ignoring deadlines set to alleviate his own invalid actions. His present motion does not represent a change in course or attitude, but rather Decoulos' continuing insistence to proceed with a pattern of dilatory and bad faith conduct. Having already given him multiple warnings, this court will not allow that course of conduct to continue."

25. On August 7, 2017, Decoulos filed the verified complaint in the present action for the same causes of action that gave rise to the Frangos complaint. The present verified complaint is mostly a verbatim copy of the Frangos complaint dismissed with prejudice by Judge Sands, and makes the same legal claims with respect to the same Property; the only substantive difference between the present complaint and the one dismissed with prejudice by Judge Sands is that Decoulos is now a plaintiff individually instead of in his former capacity as trustee of the Trust.


Standard of Review

On a motion to dismiss for failure to state a claim, the plaintiff is required to plead "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). Generally, if matters outside the pleadings are presented to and not excluded by the court, the motion will be treated as a motion for summary judgment. Mass. R. Civ. P. 12(b),(c). The court may, however, also take into account matters of public record and documents integral to, referred to, or explicitly relied on in the complaint, whether or not attached, without converting the motion to a motion for summary judgment. See Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43 , 45 n.4 (2004); Schaer v. Brandeis Univ., 432 Mass. 474 , 477 (2000); Reliance Ins. Co. v. Boston, 71 Mass. App. Ct. 550 , 555 (2008). "Further, a judge may take judicial notice of the court's records in a related action." Jarosz v. Palmer, 436 Mass. 526 , 530 (2002).

Res Judicata

The defendants argue that Decoulos's complaint is barred by the doctrine of res judicata because (1) the claims he now seeks to litigate are the same claims he litigated in the Frangos case, and (2) the issue of whether the Property is entitled to an easement by necessity has already been litigated and determined in the Kitras case.

"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." See DeGiacomo v. Quincy, 476 Mass. 38 , 41-42 (2016); Kobrin v. Board of Registration in Med., 444 Mass. 837 , 843 (2005).

1. Claim Preclusion

"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." Kobrin, supra, 444 Mass. at 843. A party seeking to invoke claim preclusion must establish three essential 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." DaLuz v. Dep't of Correction, 434 Mass. 40 , 45 (2001), citing Franklin v. North Weymouth Coop. Bank, 283 Mass. 275 , 280 (1933).

The first and second elements are present in this case without question. Decoulos was the plaintiff in the first action as well as in the present action, and to the extent he claims his role as trustee in the first action defeats the complete identity of the parties, he, in his present status as plaintiff in his individual capacity, is in privity with himself in his capacity as trustee; he currently holds title to the Property and he filed the prior action as trustee of the Trust when the Trust held title to the Property. [Note 5] Further, Decoulos alleges in his complaint that he has held an ownership interest in the Property since 1998. As such, Decoulos not only had the incentive to litigate his claims in Frangos, he also had the opportunity. Decoulos contends that both the Land Court and Appeals Court denied him the opportunity to litigate Frangos because neither court allowed him to proceed pro se. This argument is unavailing. As the defendants point out, Decoulos's co-trustee passed away in 2008, but Decoulos did not transfer the Property to himself--to proceed pro se in his individual capacity--until May, 2017. The record reflects that Decoulos singularly proceeded as trustee of the Trust after Frangos's death; waiting nearly ten years before conveying the property to himself after multiple admonitions from the Land Court and Appeals Court against representing the Trust as a non-attorney. Decoulos argues that he is entitled to his day in court, yet he was not denied his day in court in Frangos; he deprived himself of that opportunity through his own actions, despite numerous chances to remedy the lack of representation for the Trust.

As to the second element of claim preclusion, identity of the cause of action, the claims Decoulos seeks to litigate here for an easement by necessity and a taking of the Property are identical to the claims he advanced in Frangos. The claims for relief in the present complaint are almost a verbatim copy of the claims for relief in the Frangos complaint, with no substantive difference.

It is the third element of claim preclusion, a prior final judgment on the merits, that Decoulos argues is not present and for this reason he contends that he is not barred by claim preclusion. Decoulos asserts that because Judge Sands dismissed the Frangos case for Decoulos's failure to obtain an attorney to represent the Trust, his claims were not decided on the merits.

Rule 41 of the Massachusetts Rules of Civil Procedure provides guidelines for the dismissal of actions and addresses involuntary dismissals in subsection b. Under Mass. R. Civ. P. 41(b)(1), the court may, on its own motion, dismiss an action "for lack of prosecution [if the action] has remained upon the docket for three years preceding said notice without activity shown other than placing upon the trial list, marking for trial, being set down for trial, the filing or withdrawal of an appearance, or the filing of any paper pertaining to discovery." Rule 41(b)(2), governs involuntary dismissals on motion of a defendant. Relevant to the present action is Rule 41(b)(3), which provides in relevant part:

"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).

Mass. R. Civ. P. 41 (b) (3). See Mestek, Inc. v. United Pac. Ins. Co., 40 Mass. App. Ct. 729 , rev. denied 423 Mass. 1108 (1996) (where plaintiff argued dismissal under Mass. R. Civ. P. 12(b)(6) did not reach merits of claim, Appeals Court, citing Rule 41(b)(3), concluded claim was adjudicated on merits and res judicata applied).

Decoulos is barred from relitigating his claims against the defendants because Judge Sands's dismissal with prejudice of the Frangos complaint was an adjudication on the merits that became final when the Appeals Court dismissed the Trust's appeal with prejudice on August 4, 2017. See Bagley v. Moxley, supra, 407 Mass. at 637, quoting Boyd v. Jamaica Plain Co-op. Bank, supra, 7 Mass. App. Ct. at 157-158 n.8 (plaintiffs stipulating to dismissal with prejudice of claims could not bring same claims in later action because dismissal with prejudice "constituted 'an adjudication on the merits as fully and completely as if the order had been entered after trial'").

2. 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." Bagley v. Moxley, supra, 407 Mass. at 636-637, quoting Heacock v. Heacock, supra, 402 Mass. at 23 n.2. Issue preclusion applies where "(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; and (3) the issue in the prior adjudication was identical to the issue in the current adjudication, was essential to the earlier judgment, and was actually litigated in the prior action." DeGiacomo v. Quincy, supra, 476 Mass. at 42 (citations omitted).

The issue in this case is the exact same issue that the SJC decided in Kitras. In the present action, Decoulos argues that his property, which is the eastern half of Lot 557, is entitled to an easement by necessity over the property of the defendants. In Kitras, the SJC concluded that lots numbered 189 and above are not entitled to easements by necessity. The Property, the easterly half of lot 557, is thus covered by the Kitras decision. Decoulos tries to skirt around that decision by arguing that he sought easements for different lots in Kitras that did not include the Property. However, the SJC determined that lots numbered 189 and above are not entitled to easements by necessity, as the defendants in that case "presented sufficient evidence to rebut the presumption that the commissioners intended to include rights of access . . . ." Kitras v. Aquinnah, supra, 474 Mass. at 133. The SJC's determination is conclusive. Decoulos, as trustee of three other trusts, was a party in the Kitras case, and his wife was a plaintiff as well. He was thus either a party or in privity with a party in that case, in which the issues in the present case were fully litigated. This forecloses Decoulos from again litigating the existence of easements by necessity for all lots bound by the SJC's final judgment. [Note 6]

Finally, Decoulos claims that the decision in Kitras does not control his ability to litigate this case because the original grantee of the Property was a citizen of the Commonwealth, and not a member of the Wampanoag Tribe of Gay Head (the "Tribe"). He argues that when the land was partitioned it could not have been the intent to deprive the original grantee, a non-Indian, access to the Property. The plaintiffs in Kitras, including Decoulos, argued that the lots created by the partition possessed easements by necessity because the partition commissioners could not have intended to devise useless, landlocked parcels to the original grantees. Decoulos had an interest in, and ample opportunity, in the Kitras litigation, to argue that not all grantees of the partitioned lots were members of the Tribe. He cannot attempt multiple bites at the apple in this court because he is unsatisfied with the outcome in Kitras. See Anderson v. Phoenix Inv. Counsel of Boston, Inc., 387 Mass. 444 , 452 (1982) (res judicata designed "to forestall a [party] from getting 'two bites at the apple'").


For the foregoing reasons, the defendants' motion to dismiss is ALLOWED.

Judgment will enter accordingly.


[Note 1] A more detailed, in depth recitation of the Town's history and the events leading up to the partition can be found in Kitras v. Aquinnah, 474 Mass. 132 (2016).

[Note 2] The Frangos complaint also named two other defendants who are not parties to the present action.

[Note 3] Kitras v. Aquinnah, Land Court Misc. Case No. 97 MISC 238738 (August 12, 2010) (Trombly, J.).

[Note 4] Kitras v. Aquinnah, 474 Mass. 132 , 146 (2016).

[Note 5] The defendants also bring attention to an affidavit Decoulos filed on April 28, 2011, in the Frangos case in which he asserted that he and his wife Kitras "hold beneficial interests in Brutus Realty Trust."

[Note 6] Decoulos's argument that the defendants are judicially estopped from barring his claims because they opposed his motion to consolidate the Frangos claims with the Kitras claims is moot because the SJC's decision nonetheless covers the Property, which was the subject of the Frangos complaint. Notably, although Decoulos moved to consolidate the cases on the basis that the claims covered the same questions of law and fact, he waited until seven years after Kitras was filed to bring the Frangos action in 2004, even though he claims an ownership interest in the Property dating back to 1998. Furthermore, Decoulos need not be rewarded for splitting his identical legal claims with respect to different parcels by litigating his claims with respect to some of his land in Kitras, while holding back and choosing to litigate identical claims in a separate action in Frangos, and now the present action.