Plaintiffs Ioannis Peidis and Konstantinos Kokovidis, Trustees of the 749½ Beacon Street Realty Trust, ("Trustees") filed this action on December 13, 2019, seeking a declaration that they had successfully extinguished, by adverse possession or by prescription, deeded rights of the defendants in a passageway running behind the parties' commercial properties along Beacon Street in Newton Center. The complaint also seeks injunctive relief against defendant Murray's, LLC, ("Murray's") for overburdening and obstructing the plaintiffs' rights along the passageway. Three of the defendants filed answers to the complaint. The fourth, Murray's, filed a motion to dismiss pursuant to Mass. R. Civ. P. 12(b)(9), on the grounds that the present action is duplicative of a dispute presently being litigated between the plaintiffs and Murray's in Superior Court.
The plaintiff Trustees filed an opposition to Murray's motion to dismiss, along with additional information supported by affidavit, and Murray's filed a reply on February 21, 2020. A hearing was held before me on February 26, 2020. For the reasons set forth below, Murray's motion to dismiss is ALLOWED and the complaint will be dismissed.
FACTS
For the purposes of this motion, the court accepts as true the allegations in the complaint. The court considers various recorded instruments submitted with the complaint and the motion to dismiss, and pleadings and the docket in the related Superior Court action, as well as other undisputed materials outside the pleadings. Based on these documents, the court accepts as true the following facts for the purposes of consideration of the motion to dismiss:
The Parties and the Passageway
1. The Trustees and the defendants are the owners of abutting commercial properties along Beacon Street and Sumner Street in Newton Center. The Trustees and the defendants all share deeded rights along a passageway running behind their properties.
2. The parties' deeded easement rights in the passageway were established by two documents recorded in 1927. By an Indenture dated April 6, 1927, and recorded with the Middlesex South District Registry of Deeds ("Registry") in Book 5090, Page 163, the parties' predecessors in title granted each other reciprocal rights in a passageway approximately 14 to 15 feet in width. The Indenture granted the parties' predecessors in title "rights in common in the said passageways in and over the said lots for all purposes for which passageways are commonly used[,]" [Note 1] as appurtenant to their respective properties.
3. By a deed dated April 28, 1927, and recorded with the Registry in Book 5090, Page 165, one of the parties to the Indenture, who owned two of the lots, deeded one of them with the benefit of the same rights over the passageway, and reserved to himself for the benefit of his remaining lot "a perpetual right to pass and repass on foot and with vehicles, both horse-drawn and motor-driven, and with animals, at all times and for all purposes for which ways are commonly used, over that part of the right of way . . . which is included in the granted premises." [Note 2]
4. The Trustees allege in their complaint that they have been occupying portions of the passageway since 1992 in such a manner so as to have extinguished the defendants' rights in the passageway and established the Trustees' ownership of the passageway by adverse possession, or, in the alternative, through an easement by prescription. Further, the Trustees allege that one of the defendants, Murray's, has interfered with the Trustees' rights in the passageway by fencing off part of the passageway and by the parking of vehicles in the passageway, for which the Trustees seek injunctive relief.
The Prior Pending Litigation
5. On August 3, 2018, Murray's filed a complaint against the Trustees in Middlesex County Superior Court. [Note 3] In the Superior Court action, Murray's alleges that the
Trustees, through their operating entity for their automotive business, have been interfering with Murray's rights in the passageway by blocking the passageway by parking automobiles and placing Dumpsters in the passageway. Murray's seeks injunctive relief with respect to this alleged trespass, and declaratory relief with respect to its deeded rights pursuant to the 1927 Indenture and easement deed.
6. On October 16, 2019, a judge of the Superior Court allowed the Trustees' motion to amend their answer to add a counterclaim. In their counterclaim, the Trustees allege that they have successfully, by adverse possession, extinguished Murray's rights in all or part of the passageway.
7. Murray's moved to dismiss the Trustees' counterclaim, partly based on its argument that the Trustees had failed to join the other owners with rights in the passageway as necessary parties to its counterclaim seeking to extinguish rights in the passageway.
8. The Trustees argued in their opposition to the motion to dismiss that the other owners with rights in the passageway were not necessary parties, notwithstanding that the Trustees were seeking to extinguish rights in a passageway in which all the abutting owners had a deeded interest.
9. On January 6, 2020, a different Superior Court judge denied Murray's motion to dismiss the counterclaim, ruling that the Trustees "at least have standing to raise
adverse possession as to the portion of the easement which they have allegedly adversely possessed."
10. The Superior Court action remained pending as of the date the present motion to dismiss was argued, on February 26, 2020.
DISCUSSION
The defendant, Murray's, seeks dismissal of the complaint, contending that the present action should be dismissed pursuant to Mass. R. Civ. P. 12(b)(9) because the complaint alleges facts that are the basis of the same dispute still being litigated in the Superior Court action. "Rule 12(b)(9) provides for the dismissal of a second action in which the parties and the issues are the same as those in a prior action still pending in a court of this Commonwealth." M.J. Flaherty Co. v. United States Fid. & Guar. Co., 61 Mass. App. Ct. 337 , 339 (2004). The purpose of Rule 12(b)(9) was to codify the longstanding "salutary and well established rules against claim splitting[.]" Keen v. Western New England College, 23 Mass. App. Ct. 84 , 87 (1986).
There is no doubt that the present complaint violates the principles embodied by Rule 12(b)(9). The present complaint by the Trustees alleges the same facts and repeats the same claims that the Trustees make in their counterclaim in the Superior Court action. In both cases, the Trustees allege that they have extinguished some or all of Murray's deeded rights in the passageway, and in both they seek the same relief. Both cases are disputes over the same deeded rights in the same passageway, based on the same recorded easement rights, and based on the same claims of trespass and adverse possession. A judgment in the Superior Court case in favor of one party and a different result in the Land Court case would be irreconcilable, as both courts are essentially asked to decide the same dispute.
The Trustees argue that the present case should not be dismissed because the Trustees have made claims against the other owners with property rights in the passageway, whereas those owners are not parties to the Superior Court action. Where the dispute is factually the same in both cases, the failure to include necessary parties in the first case will not defeat a Rule 12(b)(9) motion in a second case in which additional parties are involved. See Johnson v. Greenfield District Court, 65 Mass. App. Ct. 1122 (2006) (Rule 1:28 Decision), in which the court held that the addition of a new party in the second case did not make it a "new" case. "Litigants may not frustrate the purpose of Rule 12(b)(9) by naming additional parties in a subsequent lawsuit, particularly when they could have been named in the earlier one." Hall v Boldt, 10 MISC 443649 (Mass. Land Ct., 2012) (Long, J.). That is particularly true in the present case, given that the Trustees not only failed to add the other owners along the passageway as parties in the Superior Court action, but they also actively argued, in opposition to Murray's motion to dismiss their counterclaim, that the other owners were not necessary parties and that their participation was not necessary to resolution of the dispute. They may not now argue that in fact, the dispute cannot be resolved without the presence of those same other owners, and that this can only be accomplished in the Land Court. Where a litigant has failed to add a defendant in an earlier action, he may not file a second action against that defendant. Weiss v. Grolman, 83 Mass. App. Ct. 1129 (2013) (Rule 1:28 Decision) (Plaintiff in earlier action who failed to appeal denial of motion to add a defendant barred by Rule 12(b)(9) from filing second action against that defendant, where new defendant was potentially liable in the first case and where the first case arose from same set of facts as the second case). If the Trustees believe the other owners along the passageway easement are necessary to fully resolve their dispute (notwithstanding their opposition to that idea in opposition to the motion to dismiss their counterclaim) they should move to add them as third-party defendants in the Superior Court action. They may not use these other owners as an excuse to file a case that is duplicative of an existing dispute still being litigated in the Superior Court, especially where they could have added them as third-party defendants in the Superior Court action but failed to do so, and where they actually argued against including them in that action.
Finally, the Trustees argue that this case should not be dismissed because the Land Court has exclusive jurisdiction over actions to confirm title, pointing to the allegation in their first count - which purports to be a count for declaratory judgment - that they seek confirmation of title. The count states a claim for adverse possession, and uses the tool of the declaratory judgment statute, G. L. c. 231A. Asking the court to confirm their title does not change the nature of the claim from one making a run of the mill adverse possession claim - over which the Superior Court has concurrent jurisdiction with the Land Court - to one over which the Superior Court has no jurisdiction. As there is no allegation that any of the properties involved are registered land pursuant to G. L. c. 185, the Superior Court has concurrent jurisdiction with the Land Court to litigate a dispute over rights to the passageway involving all the owners with deeded rights to the passageway, and the Trustees cannot deprive it of jurisdiction by attempting to split their claims between two different courts.
CONCLUSION
For the foregoing reasons, Murray's motion to dismiss is ALLOWED. Judgment will enter dismissing the complaint in its entirety.
IOANNIS PEIDIS and KONSTANTINOS KOKOVIDIS, as Trustees of the 749½ BEACONS STREET REALTY TRUST v. MURRAY'S, LLC, ARNOLD ZENKER, as Trustee of the 208 SUMNER STREET NOMINEE TRUST, BARBARA ZENKER, as Trustee of the 208 SUMNER STREET NOMINEE TRUST, B&E BEACON REALTY, LLC, and EQUITY REALTY LLC