MARIE C. MOLLA TRUST, by its Trustees MARIE C. MOLLA, and CATHERINE M. McINNESS v. IAN F. COHEN

Plaintiffs Marie C. Molla Trust, by its trustees Marie C. Molla and Catherine M. McIness, (Trust) and Defendant Ian F. Cohen (Cohen) own abutting properties in Norwell and dispute who holds title to a strip of land running northeasterly from Prospect Street for approximately 262 feet (Strip). Cohen's property at 82 Prospect Street includes title to the Strip. The Trust owns property at 88 Prospect Street and claims that it ought to own the Strip based upon promises made to Marie Molla (Marie) almost 20 years ago by her parents, Robert L. and Carmella M. Molla (the Molla Parents), who previously owned both Cohen's property and the Trust's property and recorded a subdivision plan showing both lots. Cohen contends that ownership of the Strip has already been litigated in superior court, but the Trust disagrees.

The central issue presented by these cross-motions for summary judgment, therefore, is whether a decision issued in Plymouth Superior Court (Superior Court) case number 0883CV01107A (Chin, J.) (Superior Court Case) on September 24, 2018, is dispositive of this case based on the doctrine of res judicata. For the reasons stated below, I conclude that the Trust's claims are so barred. Accordingly, the Trust's motion for summary judgment is DENIED and Cohen's motion for summary judgment is ALLOWED.

I. FACTS

The following material facts come from the record and are not in dispute:

1. Cohen is the current owner of 82 Prospect Street and successor-in-interest to Robert L. Molla, Jr. (Robert Jr.) and Frances S. Molla (collectively, the Mollas), Marie's brother- and sister-in-law, who owned 82 Prospect Street in 2008. [Note 1] Def.'s St. Mat. Facts in Supp. Mot. Dismiss &/or Summ. J. (Def.'s St.), ¶ 11; Pls.' Resp. Def.'s St. Mat. Facts Supp. Mot. Dismiss, or Summ. J. ("Pls.' Resp."), ¶¶ 3, 11.

2. In 2008, Marie owned 88 Prospect Street. Pls.' Resp. ¶¶ 1, 3. She conveyed 88 Prospect Street to the Trust on July 13, 2017, by deed recorded at Book 48658, Page 343. Pls.' App. Ex. F (Marie Aff.). The Trust is the current owner of the abutting property at 88 Prospect Street and successor-in-interest to Marie. Def.'s St., ¶ 12; Pls.' Resp. ¶ 12.

3. On August 19, 2008, in an action entitled Molla v. Molla, the Mollas commenced the Superior Court Case. Def.'s St., ¶ 1; Def.'s App. Ex. A; Pls.' Resp. ¶ 1. The verified complaint in that case included two counts, the first alleging nuisance and trespass over the Mollas' property at 82 Prospect Street (Count I), and the second alleging intentional interference with contractual relations (Count II). Def.'s St., ¶ 2; Def.'s App. Ex. A; Pls.' Resp. ¶ 2.

4. Marie did not file an answer in the Superior Court Case. Def.'s St. ¶ 4; Pls.' Resp. ¶ 4; Pls.' St. Add'l Mat. Facts (Pls.' St.) ¶ 6. Instead, the parties agreed to settle the Superior Court Case in 2009, and filed an Agreement for Judgment and Stipulation (Agreement) in Superior Court on April 16, 2009. [Note 2] Def.'s St. ¶ 4; Pls.' St. ¶¶ 8,10; Def.'s App. Ex. B. In that Agreement, the parties agreed to the entry of judgment on Count I in favor of the Mollas (nuisance/trespass). Def.'s App. Ex. B. The Agreement read in part:

The [Mollas'] land at [82 Prospect Street] described in a Deed dated December 5, 2001 and recorded with the Plymouth County Registry of Deeds Book 21069, Pages 340 and 341 . . . has and continues to have the appurtenant right and easement to pass and re-pass over the land of [Marie] as described in a Deed dated November 22, 1986, recorded with Plymouth County Registry of Deeds Book 7316, Page 107 (hereinafter referred to as the "Defendant's Servient Estate") at 88 Prospect Street including but not limited to the use of the driveway now existing on the "Defendant's Servient Estate" (which all the parties have both used for many years as a driveway and continue to use) as a right and benefit to "Plaintiffs' Dominant Estate" for all purposes which driveways and roadways are currently used in the Town of Norwell and is a perpetual right vested in the "Plaintiffs' Dominate [sic] Estate" over the "Defendant's Servient Estate" for the entire length of the "Defendant's Servient Estate" as it abuts the "Plaintiffs Dominant Estate" as shown on a Plan recorded with Plymouth County Registry of Deeds, Plan Book 45, Page 23 from Prospect Street to the rear lot line . . . .

Def.'s App. Ex. B. [Note 3]

6. The parties further agreed that Marie

has no right, title interest and/or easement of any kind whatsoever in and to the "Plaintiffs' Dominant Estate" and as shown on the Plan at Plan Book 45, Page 23, comprising a portion of Parcel 1 in the "Plaintiffs' Dominant Estate" Deed delineated by a broken line along the northwesterly boundary of the [Mollas'] land . . . .

Id. Finally, the Agreement stated that it "shall be in perpetuity and run with the land of the respective parties as the Dominant and Servient Estates above described."

7. The Agreement was signed by counsel for the Mollas and Marie. Pls.' St. ¶ 10; Def.'s App. Ex. B. Upon entry of judgment, the Mollas filed an assented-to motion to dismiss Count II of the complaint. Def.'s App. Ex. G.

8. The plan referenced in the Agreement is entitled "Plan of Land at 82 Prospect Street, Norwell, MA Assessors' Map 13D, Lot 5" recorded at Plan Book 45, Page 23 and dated November 19, 2001 by Ralph Harlow Cole P.L.S. Def.'s App. Ex. E.

9. Superior Court Judge Chin issued a Final Order in the Superior Court Case on April 16, 2009 (Final Order). Def.'s St. ¶ 9; Def.'s App. Ex. F; Pls.' Resp. ¶ 9; Pls.' St. ¶ 11. In pertinent part, the Final Order provided:

Marie C. Molla is enjoined from entering the premises known as 82 Prospect Street, (and all property referenced in the attached Agreement for Judgment as the Dominant Estate) Norwell, Massachusetts or placing any markers or objects to block plaintiffs from entering their property interfering with (their heirs, successors and or assigns as their interest may appear of record) their use of the right of way referred to in the Agreement for Judgment.

10. The Final Order incorporated the Agreement by reference, and it was recorded with the Plymouth County Registry of Deeds on April 28, 2009, at Book 37120, Page 28. Def.'s App. Ex. F.

11. On April 11, 2018, Marie filed a Motion to Vacate the Final Order under Mass. R. Civ. P. 60 (b) (4) and 60 (b) (6) in the Superior Court Case. [Note 4] Judge Chin denied that motion in a Memorandum of Decision and Order on Defendant's Motion to Vacate Final Order, dated September 24, 2018 (2018 Superior Court Decision). Pls.' St. ¶ 13; Def.'s App. Ex. G. The 2018 Superior Court Decision concluded that Marie's delay in seeking relief from the Agreement was not reasonable, coming nearly ten years after she knew of the Agreement in 2009 and offering no other facts to excuse her delay in seeking relief from the Final Order. [Note 5]

Id.

12. The 2018 Superior Court Decision was not appealed.

II. DISCUSSION

On March 28, 2018, Plaintiff filed this lawsuit seeking a declaration that title to the Strip belongs to the Trust. Cohen filed an answer on June 4, 2018. On November 26, 2018, Cohen filed Defendant's Motion to Dismiss the Verified Complaint and/or for Summary Judgment. The Trust filed an opposition and cross motion for summary judgment on December 19, 2018. After a hearing on May 21, 2019, I took this matter under advisement.

Cohen contends that his title to the Strip was conclusively determined by the Superior Court Case. The Trust advances two arguments in the hope of avoiding the preclusive effect of the Superior Court Case. First, the Trust argues that Marie did not have knowledge of the contents of the Agreement or Final Order, did not consent or authorize her counsel to make such an agreement on her behalf, and did not know of their recordation at the time they were recorded. The second argument advanced by the Trust is premised on the theory that approval of a subdivision plan by the town of Norwell in 1969 is binding on the parties and somehow transferred title to the Strip to 88 Prospect Street.

A. Standard of Review

"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 , 643-644 (2002); see Mass. R. Civ. P. 56 (c). "The moving party bears the burden of affirmatively demonstrating that there is no triable issue of fact." Ng. Bros. Constr., supra, 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. 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 "[a]n adverse party may not manufacture disputes by conclusory factual assertions." Ng Bros. Constr., Inc., supra, at 648; see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When appropriate, summary judgment may enter 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).

B. Plaintiff's Claims Are Barred by the Doctrine of Res Judicata

Cohen contends that the Trust is barred from relitigating ownership of the Strip by the doctrines of issue preclusion and claim 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). Specifically, "res judicata" ecompasses both the doctrines of "issue preclusion" and "claim preclusion." Kobrin v. Board of Registration in Med., 444 Mass. 837 , 843 (2005). I address each in turn.

1. 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, supra, at 23 n.2. Specifically, issue preclusion requires the court to find four elements are satisfied:

(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) (Misc. Case No. 07 MISC 338201) (Grossman, J.), quoting Kobrin, supra, at 843-844; see Petrillo v. Zoning Bd. of Appeals of Cohasset, 65 Mass. App. Ct. 453 , 457-458 (2006).

Here, there is no dispute as to the identity or privity of the parties. The parties to both this case and the Superior Court Case are the same or in privity. The Trust has acknowledged that Cohen is the successor-in-interest to the Mollas and that it is the successor-in-interest to Marie. Thus, this discussion focuses on the remaining three elements, namely, whether there is (1) a prior final judgment on the merits that involved (2) an identical issue (3) that was actually litigated and essential to the judgment of the Superior Court Case.

Final judgment on the merits. For res judicata to apply, the prior action must be a final judgment on the merits. Kobrin, supra, at 843-844. Here, the Superior Court Case concluded with the Final Order on April 16, 2009. That Final Order was recorded at the Plymouth County Registry of Deeds shortly thereafter on April 28, 2009. Many years later and shortly after commencing this Land Court case, Marie filed her Motion to Vacate the Final Order on April 11, 2018. That motion was denied. Marie elected not to appeal the 2018 Superior Court Decision and cannot now seek a third bite of the apple.

At the summary judgment hearing, the Trust argued that the Land Court, not the Superior Court, has jurisdiction to adjudicate its claim to quiet title or try title. That argument is unavailing for several reasons. In the first instance, as discussed above, the 2018 Superior Court Decision specifically concluded that the Superior Court had jurisdiction, and that decision was not appealed. Moreover, when a claim has been submitted to a court and become the subject of a final and unappealed judgment in that forum, a party may not raise a subject matter jurisdiction challenge to relitigate an issue. Possehl v. Ossino, 28 Mass. App. Ct. 918 , 918 (1981).

"Principles of finality and judicial economy to that degree supplant the doctrine that parties may not confer jurisdiction on a court which the court does not have." Id., citing Harker v. Holyoke, 390 Mass. 555 , 559 (1983). Accordingly, I reject the Trust's attempt to reframe its claim to seek ownership of the Strip.

Identity of the issues. Claim preclusion also requires that the issue in the prior case be identical to the present issue. Kobrin, supra, at 843-844. In arguing that res judicata does not bar this action, the Trust contends that the issue in this case is different from that determined in the Superior Court Case. Specifically, the Trust argues that the nuisance, trespass, and intentional interference with contractual relations claims in the Superior Court Case are fundamentally different from the current claims to try title or quiet title because the latter involve the integrity of a town-approved subdivision plan. According to the Trust's theory, the terms and conditions of the Agreement, as confirmed by the 2018 Superior Court Decision, constitute an unlawful alteration to a subdivision plan that the Town of Norwell approved when the Molla Parents owned both 82 and 88 Prospect Street (Subdivision Plan). [Note 6]

The difficulty with the Trust's argument is that determining of ownership of the Strip is central to all of these claims. The Trust cites Matthews v. Planning Bd. of Brewster, 15 LCR 227 (2007) (Misc. Case No. 296512) (Lombardi, J.), aff'd, 72 Mass. App. Ct. 456 (2008), in support of its argument that private parties may not modify a subdivision plan by agreement without the planning board's involvement. What the Trust fails to acknowledge is that in Matthews, all lots purchased within the subdivision were conveyed subject to the terms and conditions of instruments of record, including the plan. Id. at 231. In contrast, the Trust has not identified any instrument of record whereby 82 Prospect Street is conveyed subject to the Subdivision Plan. The mere showing of an easement or a lot line on an approved and recorded subdivision plan does not effect a conveyance. Patel v. Planning Bd. of North Andover, 27 Mass. App. Ct. 477 , 480-481 (1989). Indeed, in the Affidavit of Marie C. Molla, the Trust all but admits that no such instrument exists; it states that Marie had at one time anticipated that Robert Molla would execute a deed to give 88 Prospect Street title to the Strip. There is no evidence, however, that any such instrument was ever effectuated.

Likewise, the Trust contends that Marie did not consent to the Agreement in an attempt to set aside the Superior Court's determination that title to the Strip belongs to 82 Prospect Street. In the Superior Court Case, it was alleged that Marie had trespassed on 82 Prospect Street and the Strip. When that case concluded with the Agreement, Marie agreed that she had no claim to title in the Strip and the Superior Court entered a Final Order consistent with that Agreement. Accordingly, there is an identical title issue between the two cases to satisfy the second element of issue preclusion.

Actually litigated and essential to the outcome. Finally, issue preclusion requires that the identical issue was actually litigated and essential to the outcome of the prior action. Kobrin, supra, at 843-844. Here, the Trust does not dispute that determining Cohen's title was essential to adjudicating Marie's trespass in the Superior Court Case. The Trust points out, however, that Marie never filed an answer and the docket for the Superior Court Case does not indicate that any hearings, discovery, dispositive motions, or trial occurred. Accordingly, the Trust argues that the issue of title to the Strip was not actually litigated and there was no adjudication of the issues on the merits.

Established case law is to the contrary. While "preclusive effect should not be given to issues or claims that were not actually litigated in [the] prior action," an evidentiary hearing or trial is not required before preclusion can apply. Treglia v. MacDonald, 430 Mass. 237 , 241 (1999). "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, 89 Mass. App. Ct. 341 , 345 (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 Alba v. Raytheon Co., 441 Mass. 836 , 844 (2004); Commissioner of the Dep't of Employment & Training v. Dugan, 428 Mass. 138 , 143 (1998); Green v. Brookline, 53 Mass. App. Ct. 120 , 126-127 (2001).

It cannot be said that Marie did not have an opportunity to present her lack-of-consent argument. When Marie filed her motion to vacate the Final Order in 2018, the Superior Court considered it and concluded that there were no extraordinary circumstances justifying relief from the Agreement and concluded that Marie's delay in seeking relief was not reasonable. [Note 7] Specifically, Judge Chin wrote:

First, [Marie] knew of the agreement in 2009. Second, her affidavit provides reasons why she did not pursue any legal action against her attorney but provides no reason why she failed to pursue any action pertaining to this matter for nearly ten years. Finally, no other facts explain or excuse the delay in seeking relief from the Final Order for the past ten years. Therefore, the defendant has offered "no reason or excuse for the [ten-year] delay." Gath [v. M/A COM, Inc.], 440 Mass. [482,] 497 [(2003)]. Accordingly, the motion was not brought in a reasonable time and relief shall not be granted.

Def.'s App. Ex. G.

In her motion to vacate the Final Order, Marie challenged the subject matter jurisdiction of the Superior Court to adjudicate her claim to title of the Strip. The 2018 Superior Court Decision rejected Marie's assertion that the Superior Court had "usurped jurisdiction" from the Land Court in issuing the Final Order. [Note 8] Marie made this argument contemporaneously with the Trust's filing of the try title and quiet title claims in this case, and she presumably included the subdivision theory in both cases. In any event, the Trust's subdivision theory was either directly addressed by the Superior Court or certainly could have raised by Marie in her motion to vacate. [Note 9]

Nor does it matter that judgment was entered by agreement of the parties rather than by the court. MacHeras v. Syrmopoulos, 319 Mass. 485 , 486 (1946); see also American Venture 594 Corp. v. A. Russo & Sons, Inc., 79 Mass. App. Ct. 770 , 775 n.9 (2011) ("In this subsequent dispute between the very same parties, involving their common easement in the same way, it has not been shown why the agreement for judgment is not conclusively binding on them so that it is res judicata as to the claims raised herein."). While there was no evidentiary hearing in the Superior Court Case, none was required for preclusive effect. Therefore, all elements of issue preclusion are satisfied, and the Trust is barred from relitigating ownership of the Strip.

2. Claim Preclusion

The related doctrine of claim preclusion also bars the Trust's lawsuit. "The doctrine of claim preclusion makes a valid, final judgment conclusive on the parties and their privies, and bars further litigation of all matters that were or should have been adjudicated in the action." Heacock, supra, at 23. As explained by the Appeals Court in Santos v. U.S. Bank Nat'l Assoc., 89 Mass. App. Ct. 687 , 692 (2016), quoting Kobrin, supra, at 843: "This [doctrine] is based on the idea that the party to be precluded has had the incentive and opportunity to litigate the matter fully in the first lawsuit." To invoke claim preclusion, three largely familiar elements are required: (1) "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. Department of Correction, 434 Mass. 40 , 45 (2001); see Franklin v. North Weymouth Coop. Bank, 283 Mass. 275 , 280 (1933). The first and third elements are identical to those required for issue preclusion. Because there is identity of the parties and a prior final judgment on the merits, as discussed above, the only issue remaining for claim preclusion is whether there is identity in the cause of action.

To have identity of the cause of action, the present cause of action "need not be a clone of the earlier cause of action." Mancuso v. Kinchla, 60 Mass. App. Ct. 558 , 571 (2004), quoting Massachusetts Sch. of Law at Andover, Inc. v. American Bar Assn., 142 F.3d 26, 38 (1st Cir. 1998). For example, in Bagley v. Moxley, 407 Mass. 633 , 638 (1990), the plaintiffs impermissibly sought to litigate their claims of ownership in a private way one theory at a time in successive cases. The Supreme Judicial Court explained: "[It 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." In so concluding, the Court looked to the gravamen of the plaintiffs' complaints; in each case, the primary issue was ownership of disputed land.

[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.

Here, the Trust likewise commenced this Land Court action after its predecessor-in-title failed to convince the Superior Court of the merits of her claim to the Strip. To the extent that the subdivision theory was not advanced in the Superior Court Case, this court "cannot countenance a [party's] action in failing to plead a theory in [one] court in the hope of later litigating the theory in [another] court." Anderson v. Phoenix Inv. Counsel of Boston, Inc., 387 Mass. 444 , 452 (1982).

Indeed, the Trust was advancing its motion to vacate in the Superior Court Case simultaneous with this Land Court case. Generally, "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." Santos, supra, at 692-693, quoting Wright Mach. Corp. v. Seaman-Andwall Corp., 364 Mass. 683 , 690 (1974). Consistent with this general rule, the Trust's attempt to creatively recast its claim to the Strip as arising from the Subdivision Plan must be denied based on res judicata.

CONCLUSION

For the reasons set forth above, Defendant's Motion for Summary Judgment is ALLOWED, and Plaintiffs' Motion for Summary Judgment is DENIED.

Judgment will enter accordingly.