JAMES V. MOROSE and JANET L. MOROSE v. PAUL G. FITCH and KAREN A. FITCH

Procedural History

The Complaint in this action was filed on November 29, 2017. On January 22, 2018, Defendants Paul G. Fitch and Karen A. Fitch (Fitches) filed an Answer to Plaintiffs James V. Morose and Janet L. Morose (Moroses) Complaint, a Counterclaim, and a Motion to Dismiss. On January 25, 2018, the Moroses filed a Motion for Leave to File Amended Complaint. On February 1, 2018, the Fitches filed Defendant Paul G. Fitch's First Amended Answer to Plaintiffs' Complaint and Counterclaim. The Case Management Conference was held on February 1, 2018, when the Motion for Leave to Amend Complaint was allowed. On March 1, 2018, the Fitches filed Defendants Paul G. Fitch and Karen A. Fitch's Second Amended Answer to Plaintiffs' Verified First Amended Complaint and Counterclaims. On March 9, 2018, the Moroses filed Plaintiffs' Response to Amended Counterclaim.

On September 30, 2019, the Joint Pre-Trial Memorandum was filed. The Pre-Trial Conference was held on October 1, 2019. The Plaintiffs' Expert Witness Designation was filed on November 4, 2019, and the Defendants' Designation of Expert Witness was filed on November 6, 2019. The Fitches filed their Motion for Summary Judgment and Request for Hearing and Oral Argument, Defendants' Memorandum in Support of Their Motion for Summary Judgment, Defendants' Statement of Material Facts as to Which There is no Genuine Issue to be Tried, and Appendix to Defendants' Motion for Summary Judgment, on December 23, 2019. The Moroses filed Plaintiffs' Memorandum in Opposition to Defendants' Summary Judgment Motion, Plaintiff's Response to Defendants' Statement of Material Facts, and Plaintiffs' Appendix Index, on January 21, 2020. The Fitches filed Defendants' Reply to Plaintiffs' Opposition to Defendants' Motion for Summary Judgment, Defendants' Motion to Strike Paragraphs of Plaintiffs' Response to Statement of Facts, Corresponding Portions of Plaintiffs' Memorandum in Opposition to Defendants' Motion for Summary Judgment, Exhibits DDD-FFF and HHH of Plaintiffs' Appendix, the Affidavit of James Morose, Request for Hearing and Oral Argument, and Defendants' Memorandum in Support of Their Motion to Strike, on February 5, 2020. The Moroses filed Plaintiffs' Memorandum in Opposition to Defendants' Motion to Strike and Motion for Leave to Supplement Affidavits, and Plaintiffs' Motion and Memorandum for Leave to Designate Edward Rainen as Expert Witness Late, on February 13, 2020. The court heard Defendants' Motion for Summary Judgment on February 18, 2020, and took the motion under advisement. This Memorandum and Order follows.

Summary Judgment Standard

Generally, summary judgment may be entered if the "pleadings, depositions, answers to interrogatories, and responses to requests for admission . . . together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Mass. R. Civ. P. 56(c). In viewing the factual record presented as part of the motion, the court draws "all logically permissible inferences" from the facts in favor of the non-moving party. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). "Summary judgment is appropriate when, 'viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.'" Regis College v. Town of Weston, 462 Mass. 280 , 284 (2012), quoting Augat, Inc. v. Liberty Mutual Ins. Co., 410 Mass. 117 , 120 (1991).

Undisputed Facts

The court finds that the following facts are undisputed.

1. The property at 20 Hardy Street, Danvers, Massachusetts is shown as a lot labeled "James V. Morose" (Morose lot) on a plan entitled "Plan of Land in Danvers, Massachusetts Prepared by Eastern Land Survey Associates, Christopher R. Mello, PLS," dated December 15, 1998, and recorded in the Essex South Registry of Deeds in Plan Book 331, Plan 65 (ELS plan). Defs.' SOF ¶ 3; Pls.' SOF ¶ 3; App. Tab B.

2. Dorothy C. Welch (Welch) conveyed the Morose lot to Roger E. Morrill, Jr. on or about October 23, 1973. Defs.' SOF ¶ 10; Pls.' SOF ¶ 10; App. Tab C.

3. Roger E. Morrill, Jr. conveyed the Morose lot to the Moroses by deed dated January 4, 1974. Defs.' SOF ¶ 11; Pls.' SOF ¶ 11; App. Tab A.

4. The Moroses are the present owners of the Morose lot. Defs.' SOF ¶ 2; Pls.' SOF ¶ 2; App. Tab A.

5. The Morose lot abuts a lot labeled on the ELS plan as "N/F Welch or Stickney," also known as the W/S lot. Defs.' SOF ¶ 4; Pls.' SOF ¶ 4; App. Tab B.

6. A garage is located partially on the Morose lot, and partially on the W/S lot. App. Tab B.

7. The W/S lot abuts, on its northeast boundary, an area shown as approximately 120' x 81.55,' which, as shown on the ELS plan, runs to the Porter River. Defs.' SOF ¶ 5; Pls.' SOF ¶ 5; App. Tab B.

8. The W/S lot and the 120' x 81.55' parcel are collectively known as 22 Hardy Street. Defs.' SOF ¶ 6; Pls.' SOF ¶ 6.

9. The W/S lot also abuts, on its northwestern boundary, land shown on the ELS plan as "Lot Area 31,600." Defs.' SOF ¶ 9; Pls.' SOF ¶ 9; App. Tab B.

10. Charles I. Lajoie and Alice M. Lajoie conveyed certain lots comprising a portion of 15-17 Florence Street, Danvers, Massachusetts (15-17 Florence Street) to Frederic B. Breed (Breed) on July 1, 1958. Defs.' SOF ¶ 12; Pls.' SOF ¶ 12; App. Tab F.

11. John A. Nielsen and Gertrude Y. Nielsen conveyed certain lots comprising a portion of 15-17 Florence Street, consisting of the land depicted on the ELS plan as "Lot Area 31,600," to Breed on or about November 26, 1969. Defs.' SOF ¶ 13; Pls.' SOF ¶ 13; App. Tab G.

12. Welch conveyed the 120' x 81.55' area shown on the ELS plan to Breed on November 26, 1969. Defs.' SOF ¶ 14; Pls.' SOF ¶ 14; App. Tab E.

13. Welch did not include the W/S 1ot in the 1969 deed to Breed. Defs.' SOF ¶ 15; Pls.' SOF ¶ 15; App. Tab E.

14. Welch died on December 17, 1983, Essex Probate Court Case No. 361899. Defs.' SOF ¶ 24; Pls.' SOF ¶ 24; App. Tab M.

15. The failure to convey the W/S lot to Breed formed the basis of the quiet title adverse possession action brought by Claudio Gabriele (Gabriele) on May 24, 2000, in Land Court Case No. 264232 (the Quiet Title action). Defs.' SOF ¶ 16; Pls.' SOF ¶ 16; App. Tab O.

16. Because Patrick J. Welch and Julia A. Welch, predecessors in interest to Welch, retained some interest in the W/S lot, in the Quiet Title action, Gabriele asserted, among other things, that he had obtained title to the W/S lot by adverse possession. Defs.' SOF ¶ 26; Pls.' SOF ¶ 26; App. Tab K.

17. The Land Court Judgment in the Quiet Title action, dated August 5, 2004, and recorded in Book 23231, Page 592, (Quiet Title Judgment), adjudged and ordered that "Claudio Gabriele, holds his title . . . free from any claims of the defendants . . . ." Defs.' SOF ¶ 27; Pls.' SOF ¶ 27; App. Tab O.

18. The Moroses were not named as defendants in the Quiet Title action, or in the Quiet Title Judgment. App. Tab O.

19. Breed conveyed 15-17 Florence Street to Gabriele on or about May 5, 1999. Defs.' SOF ¶ 17; Pls.' SOF ¶ 17; App. Tab H.

20. Breed also conveyed 22 Hardy Street to Gabriele on or about May 5, 1999. Defs.' SOF ¶ 18; Pls.' SOF ¶ 18; App. Tab I.

21. On December 28, 2000, Gabriele conveyed 15-17 Florence Street to Paul Fitch. Defs.' SOF ¶ 19; Pls.' SOF ¶ 19; App. Tab WW.

22. Paul Fitch conveyed 15-17 Florence Street to himself and his wife Karen A. Fitch, as joint tenants, on June 26, 2002. Defs.' SOF ¶ 22; Pls.' SOF ¶ 22; App. Tab L.

23. The Fitches are the joint owners of 15-17 Florence Street, which abuts the northwest boundary of the W/S lot and the northeast boundaries of both the Morose lot and the W/S lot, as shown on the ELS plan. Defs.' SOF ¶ 23; Pls.' SOF ¶ 23; App. Tab B.

24. The Moroses offered to purchase the W/S lot. They contend the offer was for the portion of the lot they did not adversely possess. Defs.' SOF ¶ 34; Pls.' SOF ¶ 34; App. Tab T.

25. The Moroses received notices about applications to the Danvers Board of Appeals regarding proposed changes of use in property and a variance to subdivide land. Defs.' SOF ¶ 40, 43, 45; Pls.' SOF ¶ 40, 43, 45; App. Tab Y, Z, AA.

26. These notices concerned 15-17 Florence Street, which was the 31,600 square feet on the ELS plan. App. Tab B, Z, AA.

27. The 31,600 square-foot lot is separate from the W/S lot, which is highlighted by a bold line on the ELS Plan. App. Tab B.

Discussion

The Fitches have moved for summary judgment, asserting that the Moroses are equitably estopped from bringing an adverse possession claim, and that the court should apply collateral estoppel ruling that the Moroses are precluded from relitigating the time period of adverse possession by the Fitches' predecessors, which was established by the Quiet Title Judgment. The Fitches also assert that the Moroses are collaterally estopped from asserting exclusive possession of the disputed areas at any time between 1969 through 1989.

Equitable Estoppel

Circumstances that may give rise to a claim of equitable estoppel include: "(1) a representation intended to induce reliance on the part of a person to whom the representation is made; (2) an act or omission by that person in reasonable reliance on the representation; and (3) detriment as a consequence of the act or omission." Bongaards v. Millen, 440 Mass. 10 , 15 (2003). The Fitches assert that silence may satisfy the first element of estoppel where it constitutes a representation of consent. Tracy v. Lincoln, 145 Mass. 357 , 359 (1887). In Tracy, the plaintiff was estopped from claiming ownership of her property against the mortgagee after her husband mortgaged the property and she was silent during the transaction, but the plaintiff "was not estopped from claiming her property as against a new mortgage which might subsequently be made," and "[h]er silence cannot, upon any correct principle, be held to affect her in connection with transactions which did not directly result from it." Id. at 360. The Fitches assert that the Moroses' actions or inactions at municipal meetings constituted a representation to the Fitches and their predecessors that the Moroses did not have, and did not intend to assert, an ownership interest in the W/S lot. These municipal meetings did not concern the W/S lot. They concerned the 15-17 Florence Street lot. App. Tabs Z, AA. While the Fitches assert that the application regarding the 15-17 lot included the W/S lot, they ignore that the ELS plan has a clear boundary line between the 31,600 square foot lot (15-17 Florence Street) and the W/S lot. Appendix Tab B; see Appendix Tab AA (only references the 31,000 square foot lot in the application). Drawing inferences in the Moroses' favor, the Moroses' alleged silence had nothing to do with the W/S lot and cannot form the basis for estoppel.

The Fitches assert that the Moroses' offer to purchase constituted a representation, intended to induce reliance, that they did not have and would not claim ownership of the W/S lot. The Fitches assert this representation was made affirmatively and via silence. It is correct that an adverse possession claim may be barred by an offer to purchase if the offer is evidence that the claimant recognized the owner's title. Warren v. Bowdran, 156 Mass. 280 , 283 (1892). However, in making an offer to purchase land, "having some doubt as to the validity of [one's] title" and thus, being "willing to pay some thing for the land to avoid litigation" does not "conclusively show" that the individual making an offer to purchase does not have "title upon which he [or she] could stand in [an] action." Id. If the conversation to purchase is an admission that the individual has no title to land, it could tend to show that the possession was not adverse. Id. It is important to note that an individual offering repeatedly to buy a lot "may not in itself show conclusively that he believed he did not own it . . . but the judge could find in the circumstances that it was probative of that proposition." Peck v. Bigelow, 34 Mass. App. Ct. 551 , 558 (1993). The Fitches assert that the Moroses' offer to purchase made crystal clear that they did not claim ownership of the W/S lot, but such a determination is a question of fact, requiring an inference in the Fitches' favor, inappropriate to be determined on summary judgment. Additionally, the Moroses allege that the offer to purchase was for the portion of the W/S lot not adversely possessed by them, which is an additional fact determination inappropriate for summary judgment.

Collateral Estoppel

The Fitches argue, in the alternative, that the court should apply collateral estoppel/issue preclusion and should enter partial summary judgment in the Fitches' favor, ruling that the Quiet Title Judgment conclusively establishes that the Fitches and their predecessors exclusively possessed the W/S lot between 1969 and 1989. The doctrine of collateral estoppel provides that "[w]hen an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim." Alba v. Raytheon Co., 441 Mass. 836 , 841 (2004) quoting Martin v. Ring, 401 Mass. 59 , 61 (1987). Before applying collateral estoppel, a court must affirmatively answer four questions: (1) was there a final judgment on the merits in the prior adjudication; (2) was the party against whom estoppel is asserted a party (or in privity with a party) to the prior adjudication; (3) was the issue decided in the prior adjudication identical with the one presented in the action in question; and (4) was the issue decided in the prior adjudication essential to the judgment in the prior adjudication. Alba, 441 Mass. at 842. "The guiding principle in determining whether to allow defensive use of collateral estoppel is whether the party against whom it is asserted 'lacked full and fair opportunity to litigate the issue in the first action or [whether] other circumstances justify affording him an opportunity to relitigate the issue.'" Id. at 841–42. The Fitches assert that the Moroses are successors-in-interest to the heirs of Welch, and that their status as successors-in-interest is sufficient to create privity and bind the Moroses to the Quiet Title Judgment. The Fitches cite several cases that support the proposition that in regards to real property, "[a] judgment in an action that determines interests in real . . . property . . . [h]as preclusive effect upon a person who succeeds to the interest of a party to the same extent as upon the party himself." McCarthy v. Town of Oak Bluffs, 419 Mass. 227 , 233 (1994); see MacCormac v. Murphy, 322 Mass. 228 , 231 (1948) ("The defendant as successor in interest to . . . Flynn is in privity with her."). Interestingly, the Fitches cite a case that acknowledges that "[t]here is a presumption that successors in interest are in privity with their predecessors," but that the key question in determining whether or not successors are bound is "whether there are special circumstances or due process considerations which make it unfair to bind the [nonparty] to that judgment." Commercial Wharf East Condominium Ass'n v. Mumford, Mass. Land Court, 24 LCR 776 , 794 (2016) (Long, J.). Here, special circumstances and due process considerations make it unfair to bind the Moroses to the Quiet Title Judgment. At the time of the Quiet Title action, the Moroses were the owners of the Morose lot, but were not a named party in the Quiet Title action or in the Quiet Title Judgment. Defs.' SOF ¶ 11; Pls.' SOF ¶ 11; App. Tabs A, 0. The Moroses have owned 20 Hardy Street since 1974 - years before Claudio Gabriele brought the Quiet Title action. The Moroses should have been a named party in the Quiet Title action and provided with notice of the action, since they owned abutting property to the W/S lot and part of their garage is situated upon the lot. Failure to name the Moroses, a necessary party, denied them the full and fair opportunity to litigate their adverse possession claim. Certainly their predecessors who were named as defendants, no longer having any interest in the property, had no reason even to defend the Quiet Title action. The Moroses cannot be bound by the Quiet Title judgment. They deserve an opportunity to be heard on their adverse possession claim. [Note 1]

Conclusion

For the foregoing reasons, the Fitches' Motion for summary Judgment is DENIED.