DECOULOS v. KEEFE (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Plaintiff James J. Decoulos appeals from a judgment of the Land Court dismissing his two-count complaint on res judicata grounds. The first count sought a declaratory judgment that, by virtue of his ownership of certain land known as the easterly half of lot 557 in the town of Aquinnah (lot 557), he has an easement by necessity over the defendants' land. The second count alleged that, by depriving him of the use of this easement, the defendants took his property in violation of art. 10 of the Massachusetts Declaration of Rights.

The trial judge held that this action is barred by the doctrine of claim preclusion and identified the Land Court case of Frangos v. Aquinnah, Misc. Case No. 299511 (June 2, 2004), as precluding this one. Decoulos, in his capacity as trustee of Brutus Realty Trust, which when that case was filed owned lot 557, appeared as a pro se plaintiff in that case. After he disobeyed a Land Court judge's instruction to hire an attorney to represent the trust because he could not represent the trust pro se, the judge dismissed the complaint with prejudice. The judge also denied two subsequent motions for relief from judgment. Decoulos then entered an appeal in this court, and, while that appeal was pending, acquired lot 557 in his individual capacity. He then moved, first in this court and then in the Land Court, to substitute parties. Both motions were denied. This court then dismissed his appeal with prejudice, after which he filed suit in the instant case.

“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 v. Heacock, 402 Mass. 21, 23 (1988). Claim preclusion has three 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. Department of Correction, 434 Mass. 40, 45 (2001).

All three elements are met here. First, it is well settled that, with respect to a claim involving property, a defendant can establish privity by proving that, when the plaintiff acquired the property, the prior action was pending and the plaintiff had actual knowledge of it. See Bui v. Ma, 62 Mass. App. Ct. 553, 561-562 (2004). Obviously Decoulos, as the party litigating it, had actual knowledge of the pending Frangos matter when he acquired lot 557 in his individual capacity. Second, the causes of action are identical, as the two counts in the complaint in this case appear in near-verbatim form in the Frangos complaint. While a few factual allegations elsewhere in the complaints are different, identity between the causes of action exists “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.” Heacock, 402 Mass. at 23. Third, under Mass. R. Civ. P. 41 (b) (3), as amended, 454 Mass. 1403 (2009), any dismissal of a complaint, other than a dismissal for lack of jurisdiction, improper venue, failure to join a necessary party, or improper damages, “operates as an adjudication upon the merits” unless either the dismissal is pursuant to Mass. R. Civ. P. 41 (b) (1), 365 Mass. 803 (1974), or the judgment of dismissal specifies otherwise. None of those exceptions applies here, and thus the judgment in Frangos operates as a final adjudication upon the merits. The judge correctly held that the claims here are barred by the doctrine of claim preclusion.

Decoulos urges strenuously that the merits of his claims have never been addressed and that consequently his suit should not be barred by the doctrine of claim preclusion. As described above, that is not the law, but, assuming we are in error about claim preclusion, on the merits of his claims dismissal was required. That is because, on their merits, the claims here are controlled by the Supreme Judicial Court's decision in Kitras v. Aquinnah, 474 Mass. 132 (2016), cert. denied, 137 S.Ct. 506 (2016).² Kitras addressed the 1878 partitioning of lots 189 and above in what is now known as the town of Aquinnah. It held that, because the partitioners did not intend to create rights of access at the time of partition, those lots never had easements by necessity. See id. at 146. Under Kitras, the lot at issue here, lot 557, does not have an easement by necessity. Likewise, since, under Kitras, no such easement ever existed, Decoulos never had a property right in an easement that the defendants could have taken. On the merits then, the law as articulated in Kitras disposes of both counts in the complaint.

Decoulos takes issue with the Kitras decision in a number of ways. Kitras held, for three reasons, that the partitioners did not intend to create easements by necessity: (1) the land was granted solely to members of the Wampanoag Tribe, which had a tribal custom of granting rights of access to those members, thus rendering an easement by necessity unnecessary; (2) other easements were expressly included in the deeds; and (3) the lands were in poor condition. See id. at 141-146. Decoulos argues that, in fact, some grantees, including his predecessor in title, were not members of the Wampanoag Tribe; that there existed no such tribal custom, the existence of which in any event was only a “presumed fact” that was the “law of the case,” id. at 139; that the Federal Bureau of Indian Affairs only first officially recognized the Wampanoag Tribe in 1987; that there was no evidence of other easements; that the land was in good condition; and that Kitras conflicts with the Massachusetts Indian Land Claims Settlement Act, Pub. L. No. 100-95 (1987).

Even accepting Decoulos's factual allegations as true, and drawing all reasonable inferences therefrom in his favor, as we must at the motion to dismiss stage, see Polay v. McMahon, 468 Mass. 379, 382 (2014), we are bound by the principles of stare decisis to follow and apply the holdings of the Supreme Judicial Court. See Commonwealth v. Vasquez, 456 Mass. 350, 356 (2010). If the Supreme Judicial Court has erred in a controlling decision, recourse is with that court.

Finally, Decoulos argues for the first time on appeal that the Kitras decision constituted a judicial taking. See Stop the Beach Renourishment, Inc. v. Florida Dep't of Envtl. Protection, 560 U.S. 702, 713-728 (2010) (plurality opinion). This claim is not before us because it was not alleged in the complaint, which alleged only that the defendants inversely condemned his property, did not cite Kitras, and was a near-exact copy of the Frangos complaint, filed over a decade before Kitras was decided.

The defendants' requests for appellate attorney's fees, double costs, and a gatekeeping order are denied.

Judgment affirmed.

FOOTNOTES

2.   The judge held, and the defendants argue on appeal, that Kitras requires dismissal of the complaint under the doctrine of issue preclusion. We do not rely on that argument.