CIAO, LLC v. DONATO F. PIZZUTI, Individually and as Trustee of the PF North End Realty Trust; RABIA'S INC.; FRANK GIUFFRE; and LORETTA H. GUIFFRE.

This case, filed in November 2015, turns on what plaintiff Ciao, LLC's predecessors in interest chose not to do in a prior case before this Court, a case involving adjoining parcels of registered land that went to judgment in March 1988, but whose outcome wasn't noted on either parcel's registration certificate.

The current case is before the Court on a second motion by defendant Donato F. Pizzuti, individually and as Trustee of the PF North End Realty Trust (hereafter, the "Trustee"), for summary judgment. Here are the undisputed facts concerning the present suit (as opposed to the one in the 1980s): plaintiff Ciao filed this action in 2015 against four parties, Frank and Loretta Giuffre, Rabia's, Inc., and the Trustee. Each of the parties owns the fee in or has an easement over a private way, North Hanover Court, in Boston's North End. All of the parties' properties and interests involve registered land.

North Hanover Court runs northwest/southeast, beginning at a public way, Hanover Street, one of the North End's chief thoroughfares. A building owned by the Trustee at 216-228 Hanover Street lies on the southwestern side of North Hanover Court. Ciao's properties (including structures at 232-238 Hanover Street) are northeast of North Hanover Court, and include the northeastern half of North Hanover Court to its centerline. (There's a building at the north corner of North Hanover Court and Hanover Street, 230 Hanover Street, but none of the parties owns 230 Hanover Street. Ciao nevertheless owns the northeastern half of North Hanover Court, which abuts the southwestern side of 230 Hanover Street.) The deed creating North Hanover Court states that it "is always to lay open and in common for the benefit of this and other estates bordering thereon. . . ."

The vertical face of one side of the Trustee's 216-228 Hanover Street building meets the surface of North Hanover Court. Along that intersecting face are three blocks of hewn stone. The parties call the stones "bollards." The bollard that's closest to Hanover Street, one that's just shy of the intersection of North Hanover Court and a sidewalk along Hanover Street, extends 1.2 feet into North Hanover Court. The next closest bollard to Hanover Street intrudes one foot into North Hanover Court. The third bollard intrudes six inches into North Hanover Court, and is part of the foundation of the 216-228 Hanover Street building.

Ciao claims that the bollards interfere with Ciao's rights to use North Hanover Court. Ciao also alleges that the Giuffres, the owners of a property at 73 Salem Street that abuts North Hanover Court, have leased that property to Rabia's, the operator of a restaurant. Ciao claims that Rabia's and/or the Giuffres erected a gate on North Hanover Court that, like the bollards, interferes with Ciao's use of North Hanover Court. After it filed suit, Ciao suggested that Frank Giuffre had died, leaving Loretta as the sole owner of the Giuffre property. Ms. Giuffre later confirmed that fact, but neither she nor Rabia's appeared in this case. This Court (Scheier, J.) thus defaulted them in 2016.

For his part, the Trustee appeared and answered Ciao's complaint. He admitted that there are bollards alongside his 216-228 Hanover Street building, but he asserted he had the right to keep them. In July 2018, the Court (Vhay, J.) ordered the parties to appear for trial on three issues: (1) whether the bollards interfere with Ciao's easement rights; (2) if so, whether the doctrine of laches bars Ciao's claims for removal of the bollards; and (3) whether Ciao's conduct bars any action by Ciao to eliminate the bollards.

The parties had completed their pretrial preparations when, only days before trial, the Court came across a decision in a 1988 case, Lunetta v. Capco Realty, L.P., Land Ct. Misc. No. 108678, 1988 WL 1107836 (Mass. Land Ct. Mar. 9, 1988) (Cauchon, J.), hereafter called the "Lunetta Decision." Lunetta appeared to involve the identical North Hanover Court properties now owned by Ciao and the Trustee. The Lunetta Decision also appeared to have resolved, or foreclosed any further litigation over, many of issues that Ciao and the Trustee (both of whom were unaware of Lunetta) likely would be raising at trial. See Kobrin v. Bd. of Registration in Med., 444 Mass. 837 , 843 (2005), quoting DaLuz v. Department of Correction, 434 Mass. 40 , 45 (2001) (prior judgment precludes litigation of subsequent claims if the party asserting preclusion shows "'(1) the identity or privity of the parties to the present and prior actions, (2) identity of the cause of action, and (3) [a] prior final judgment on the merits'").

Ciao and the Trustee dispatched their trial witnesses and investigated what happened in Lunetta. They then filed cross-motions for summary judgment as to the issues each party believed Lunetta resolved, or precluded further litigation over. The parties agreed as to two of Kobrin's preclusion factors. They agreed there was a final judgment on the merits in Lunetta, and they agreed that Ciao and the Trustee are in privity with the Lunetta litigants for purposes of Kobrin by virtue of being the Lunetta litigants' successors in title. See O'Donoghue v. Commonwealth, 93 Mass. App. Ct. 156 , 162 (2018). It also was undisputed that neither the Lunetta Decision nor the Lunetta judgment specifically mentions the bollards in so many words, and none of the remaining Lunetta trial exhibits depict the bollards. But the Court couldn't resolve on summary judgment whether the Lunetta record's silence on the subject of bollards meant that they weren't in existence at the time of Lunetta or, if they were in existence, whether the Lunetta parties merely didn't care (or didn't have the incentive to care) about them. The Court thus allowed the parties to conduct additional discovery into whether the bollards existed at the time of Lunetta.

At the close of further discovery, the Court held a second pretrial conference. By that time, the parties agreed that the bollards existed at the time of Lunetta. (At one point in its opposition to the Trustee's current motion for summary judgment, Ciao seems to back away from its concession about the bollards. The Court needn't hold Ciao to that concession, as the Trustee has offered in support of his current motion for summary judgment admissible evidence proving the bollards' existence in 1988, and Ciao has offered no contrary evidence. Under Land Court Rule 4, Ciao is "deemed to have . . . admitted" the Trustee's proposition concerning the bollards' existence.) The parties agreed that a second round of motions on claim-preclusion issues thus was appropriate.

The Court noted earlier that the Lunetta Decision and judgment do not mention the bollards in so many words. That doesn't dictate whether there is (or is not) an "identity" of the "causes of action" in Lunetta and in this case for purposes of claim preclusion. "'A claim is the same for [claim-preclusion] purposes if it is derived from the same transaction or series of connected transactions.' 'The statement of a different form of liability is not a different cause of action, provided it grows out of the same transaction, act, agreement, and seeks redress for the same wrong.'" TLT Construction Corp. v. A. Anthony Tappe & Assocs., Inc., 48 Mass. App. Ct. 1 , 8 (1999) (brackets in original; citations omitted; quoting Saint Louis v. Baystate Med. Center, Inc., 30 Mass. App. Ct. 393 , 399 (1991), and Mackintosh v. Chambers, 285 Mass. 594 , 596 (1934)). "'What factual grouping constitutes a "transaction", and what groupings constitute a "series", are to be determined pragmatically.' Whether the facts are related in origin or motivation and whether they form a convenient trial unit are among the considerations." Saint Louis, 30 Mass. App. Ct. at 399, quoting Restatement (Second) of Judgments § 24 (2) (1980). But once the court deems claims to be identical, claim preclusion extends to "all matters that were or should have been adjudicated in the [prior] action." Heacock v. Heacock, 402 Mass. 21 , 23 (1988). See also Baby Furniture Warehouse Store, Inc. v. Muebles D&F Ltée, 75 Mass. App. Ct. 27 , 35 (2009) (preclusion extends not only to compulsory counterclaims, but all counterclaims that a party had an incentive to bring).

This is so even though the claimant is prepared in a second action to present different evidence or legal theories to support his claim, or seeks different remedies. The doctrine [of claim preclusion] is a ramification of the policy considerations that underlie the rule against splitting a cause of action, and is "based on the idea that the party to be precluded has the incentive and opportunity to litigate the matter fully in the first lawsuit."

Heacock, 402 Mass. at 23-24 (citations omitted, quoting Foster v. Evans, 384 Mass. 687 , 696 n.10 (1981)). But the doctrine "does not apply in circumstances where a party has neither the incentive, nor the opportunity, to raise the claim in [the] earlier lawsuit." Longval v. Commissioner of Corrections, 448 Mass. 412 , 417 (2007).

With these cases in mind, the Court turns to the undisputed facts concerning what happened in Lunetta. In 1982, the prior owners of Ciao's property, Louis and Mary Lunetta, sued Anthony F. Capodilupo and various entities he controlled. Mr. Capodilupo owned what's now the Trustee's property. The Lunettas sought a declaratory judgment that Capodilupo was "not permitted to use North Hanover Court in any manner. . . ." The Lunettas also sought a permanent injunction prohibiting Capodilupo from placing dumpsters in, parking in, or using North Hanover Court.

Mr. Capodilupo answered the Lunettas' complaint and counterclaimed. Capodilupo contended that he had the right to use North Hanover Court, and that the Lunettas had done several things that interfered with his use of the Court: they had placed "stone barriers" within the Court, erected a fence, and created an "illegal parking lot" that "over burdened" the Court. Capodilupo sought a permanent injunction against the Lunettas "to remove the stone barriers . . . and to keep the way clear of barriers so that vehicles may freely pass," "remove the fence," and restrain them "from overburdening the way by maintaining a parking lot. . . ." (The Lunettas and Capodilupo also accused each other of making various threats; everyone sought to silence the others.)

The Lunetta/Ciao properties are the subject of what the Lunetta judgment calls "Land Court decree 32503." The Capodilupo/Trustee properties are the subject of what the judgment calls "Land Court decree 4944." The judgment states in pertinent part:

[It is] ADJUDGED and ORDERED that North Hanover Court where Land Court decrees 32503 and 4944 abut between land of the [Lunettas] and [Capodilupo] is a common passageway open to all abutters and subject to implied rights for all purposes for which ways are used in the city of Boston; and it is further

ADJUDGED and ORDERED that as to this area of North Hanover Court described above, [Capodlilupo] hold[s] the fee to the center of the way subject to the rights of all others lawfully entitled thereto; and it is further

ADJUDGED and ORDERED that the [Lunettas], their heirs, assigns, agents, tenants and servants and [Capodilupo, his] heirs, assigns, agents, tenants and servants shall have the right to pass and repass over the entire portion of North Hanover Court described above and may make use of this portion of the Court for all purposes for which ways are used in the City of Boston subject to the rights of all other persons lawfully entitled thereto; and it is further

ADJUDGED and ORDERED that [all parties] shall be allowed to use the Court to make and receive deliveries by vehicles not exceeding nine feet in width . . . ; and it is further

ADJUDGED and ORDERED that the [Lunettas] shall remove the fence constructed across North Hanover Court . . . and shall also remove the wooden beam extending from the [Lunettas'] fire escape to the Court, but the [Lunettas] may maintain such fire escape from a height of nine feet above the Court; and it is further

ADJUDGED and ORDERED that the [Lunettas] may retain the various cement or stone structures in the form of barriers alongside the building; and it is further

ADJUDGED and ORDERED that [Capodilupo] shall remove the dumpsters located in North Hanover Court and shall not use the Court for the placement of trash or trash receptacles; and it is further

ADJUDGED and ORDERED that [Capodilupo] may retain and use the coal chute now converted into a bulkhead; and it is further

ADJUDGED and ORDERED that the [Lunettas], their heirs, assigns, agents, tenants and servants and [Capodilupo, his] heirs, assigns, agents, tenants and servants shall keep the Court free of all structures not expressly allowed herein and free from all conduct which impedes the rights of others to pass and repass over North Hanover Court.

The Lunettas filed a notice of appeal from the Lunetta judgment, but they didn't get the judgment overturned. And while neither the Lunettas' registration certificate nor that of Capodilupo notes the entry of the judgment, the judgment nevertheless remains in force.

The Court concludes from the undisputed facts the following. First, the Lunettas' objectives in Lunetta encompassed Ciao's objectives in this litigation: the Lunettas sought to force Trustee Pizzuti's predecessor in interest, Mr. Capodilupo, to remove everything from North Hanover Court that was interfering with the Lunettas' use of North Hanover Court. Second, the Lunettas had an opportunity in Lunetta to challenge the bollards if they wanted to: after all, they sought the removal from North Hanover Court of several other Capodilupo obstacles, and were partially successful in that effort. Ciao has offered no facts that distinguish the "Capodilupo" dumpsters, trash receptacles, and coal chute/bulkhead from the "Pizzuti" bollards. (In fact, in opposing the Trustee's current motion, Ciao has proposed as a supplemental material fact that the bollards "are of the same like and kind as the 'cement or stone structures' that Justice Cauchon described as being attached to the Lunetta building in the [Lunetta] Decision," structures the Lunetta judgment allowed the Lunettas to retain.) The Pizzuti bollards and the Lunetta stone structures were within North Hanover Court, and all would have formed a convenient "trial unit" had someone wanted to challenge the bollards. See Saint Louis, 30 Mass. App. Ct. at 399.

Third, as owners of what's now Ciao's property and the holders of what are now Ciao's easement rights in North Hanover Court, back in the 1980s the Lunettas had the same incentives as Ciao to challenge the bollards. Fourth, the Lunnettas' participation in litigation that lasted six years in this Court (from the filing of their complaint, through a trial on the merits, and even the filing of a notice of appeal) demonstrates that the Lunettas had the ability and the resources to dispute the bollards back in the 1980s if the Lunettas so chose.

The Court thus concludes that Ciao may not challenge the Trustee's bollards in this action owing to the Lunettas' failure to object in Lunetta to the bollards. Ciao raises two arguments in an effort to avoid this result. Ciao first argues that in order to benefit from the doctrine of claim preclusion, the Trustee has to prove that the Lunetta parties actually litigated the bollard issues – proof no one's likely to develop at this point, given the lack of a complete trial record and hazy memories. In any event, Heacock rejects Ciao's first argument: once a court deems claims to be identical (as this Court now has), claim preclusion extends to "all matters that were or should have been adjudicated in the [prior] action." Heacock, 402 Mass. at 23 (emphasis added). The Trustee doesn't need to show that anyone raised bollard issues in Lunetta in order to assert claim preclusion, so long as someone had the opportunity to litigate those issues in Lunetta.

Ciao's second argument is this: if the doctrine of claim preclusion bars anyone's claims, it should be those of the Trustee. Ciao's second argument fails for two reasons. First, it runs into a procedural roadblock: the Trustee has presented no "claims" in this case. He merely answered Ciao's complaint, and didn't counterclaim. The Trustee's answer denies Ciao's right to obtain relief and raises several defenses, but the Trustee hasn't asked the Court to declare his or the Trust's rights vis a vis Ciao. That state of affairs persisted through the time of the trial that never was. The Court's July 2018 Order in Advance of Trial listed three issues for trial; all of them address only Ciao's rights, and not those of the Trustee.

Second, Ciao's second argument rests on a faulty premise. Ciao's reasoning goes like this: (a) The Court must assume that Lunetta adjudicated all of the parties' rights in North Hanover Court. (b) The Lunetta judgment doesn't expressly authorize retention of the bollards (in contrast to what Justice Cauchon did with the Lunettas' "cement or stone structures). (c) The Lunetta judgment does order the parties, however, to keep North Hanover Court "free of all structures not expressly allowed herein. . . ." Thus, (d) retaining the bollards violates the Lunetta judgment.

Ciao's logic fails because Ciao hasn't supported, with either law or facts, its initial premise: that the Court must assume Lunetta adjudicated everything about North Hanover Court. The premise is faulty as a legal matter because it misapprehends the doctrine of claim preclusion. While (as Heacock notes) the courts have developed the doctrine so as to discourage claim splitting, and to force parties to litigate disputes the first time they or their privies are in court, Ciao presents no case law that supports the proposition that once a suit is filed, parties are stripped of their ability to decide not to raise certain issues. Wise parties and their counsel pick and choose issues all the time; the bane of a judge's existence is the party who can't be selective about which fights to pick. The doctrine of claim preclusion imposes costs on parties only if someone has second thoughts about his or her decision (or that of his or her privies) to forgo a claim.

Ciao's initial premise also doesn't succeed from the standpoint of what a party in Ciao's position must show in opposition to a motion for summary judgment. If Ciao wants to argue that someone in Lunetta challenged what are now the Pizzuti bollards, lost, and suffered an adverse judgment that mandated removal of the bollards, it's Ciao's responsibility on summary judgment (as the party who'd have the burden at trial of proving the only affirmative claims in this case) to provide admissible evidence sufficient to show that Ciao has a "reasonable expectation of proving an essential element of [its] case." Kourouvacillis v. General Motors Corp., 410 Mass. 706 , 716 (1991). The evidence that anyone in Lunetta disputed the Pizzuti bollards is speculative (as Ciao itself argues in responding to the Trustee's Statement of Material Fact No. 16). Ciao can't defeat a motion for summary judgment with speculative evidence. See Benson v. Massachusetts General Hospital, 49 Mass. App. Ct. 530 , 532-533 (2000).

Having concluded that the doctrine of claim preclusion bars Ciao's claims against the Trustee, the Court will enter judgment in favor of Trustee Pizzuti, and against Ciao, on Ciao's claims against the Trustee. (The Court thus need not reach the Trustee's alternative argument that he has extinguished Ciao's easement rights by adverse possession.) Ciao nonetheless is entitled to a default judgment against Rabia's, Inc. and Loretta Giuffre.

Judgment shall enter accordingly.