EXECUTIVE OFFICE OF HEALTH AND HUMAN SERVICES v. THIBODEAU (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Attorney Donald C. Kupperstein appeals from a summary judgment granted in favor of the Executive Office of Health and Human Services (MassHealth). This Superior Court judgment followed proceedings in the Probate and Family, Land, and Superior Courts to resolve issues arising from a lien placed by MassHealth on real property (property) of Fred Kuhn, and later his estate, of which defendant Carol A. Thibodeau was the personal representative and beneficiary. The litigation arose from Kupperstein's attempts, together with Thomas E. Sheedy, to avoid the MassHealth lien after purporting to purchase the property from Thibodeau.

At issue in this appeal is a judgment dated November 27, 2018, in the amount of $646,805.37 plus statutory interest. This judgment represented “$54,750.00 in back rent and the $10,485.00 in attorney's fees awarded by the Probate and Family Court and the $6,330.00 costs and fees awarded by the Land Court,” as well as “treble damages pursuant to G. L. c. 118E, § 44 for ․ $575,240.37 (three times the MassHealth claim of $191,746.79) plus statutory interest.”

Attorney Kupperstein initially contended on appeal that (1) the Probate and Family Court orders incorporated into the Superior Court's final judgment had been entered in violation of an automatic stay in a bankruptcy proceeding and were therefore void; (2) the Superior Court's award of treble damages, see G. L. c. 118E, § 44, was in error because when lifting the automatic stay as to MassHealth's actions against Kupperstein, the bankruptcy court maintained the stay for “any judgment with respect to the $191,741.79 MassHealth reimbursement claim or attempt to collect from Kupperstein all or any part thereof,” which Kupperstein contends includes the treble damages award; and (3) because a different judge of the Superior Court had previously granted partial summary judgment in favor of Kupperstein, the final judgment entered on MassHealth's renewed motion for summary judgment was barred by the law of the case doctrine.

However, at oral argument, counsel to Kupperstein agreed that the issues pertaining to the automatic stay, then before the United States District Court for the District of Massachusetts on remand from a decision of the United States Court of Appeals for the First Circuit in In re Kupperstein, 943 F.3d 12 (1st Cir. 2019), are more properly resolved in the Federal courts. See Price v. Cole, 31 Mass. App. Ct. 1, 5 n.4 (1991) (“[A] State court would be on untenable ground in concluding that [a] Bankruptcy Court order [regarding the automatic stay] did not have its declared effect. That would be a subject for consideration by a United States District Court. See 28 U.S.C. §§ 157[b][2][G], 158[a], and 1334[a] [1988]”). Since oral argument, the United States District Court for the District of Massachusetts has again affirmed the bankruptcy judge's order, stating that the Probate and Family Court judge did not violate the automatic stay because it acted in aid of the court's discretionary powers to modify the stay. See In re Kupperstein, 2020 WL 1939719 (D. Mass. April 22, 2020). The decision has since been appealed. For these reasons, we address only the third issue, a question of State law over which our authority is both clear and exclusive.

The history of Attorney Kupperstein's efforts to obtain the property, and to obstruct the orders of the Probate and Family Court to return the asset to the probate estate for sale are set forth in the First Circuit's decision in In re Kupperstein, supra, and in even greater detail on remand. The series of events and ensuing litigation began long before Attorney Kupperstein filed a petition in bankruptcy. However, the orders of the Probate and Family Court were entered on complaints for contempt after the automatic stay came into effect.⁴ A judge of the United States Bankruptcy Court for the District of Massachusetts ruled that the Probate and Family Court's orders did not violate the automatic stay because they were entered in aid of its contempt powers. See In re Kupperstein, 588 B.R. 279 (Bankr. D. Mass. 2018). The bankruptcy judge subsequently lifted the automatic stay.⁵ The order currently on appeal in this court, which referenced the Probate and Family Court orders, entered in the Superior Court after the stay had been lifted.⁶

In filing its renewed motion for summary judgment in the Superior Court, MassHealth sought a ruling based on the facts separately set forth in MassHealth's Superior Court Rule 9A(b)(5) statement of material facts. Kupperstein did not dispute the facts offered in support of the renewed motion for summary judgment either in the Superior Court or on appeal. The trial judge deemed the facts admitted for purposes of summary judgment, as do we. See Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002); Rule 9A(b)(5) of the Rules of the Superior Court (2017). We therefore conduct a de novo review “viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and [determine whether] the moving party is entitled to a judgment as a matter of law.” Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). See Murray v. Hudson, 472 Mass. 376, 384 (2015). The facts admitted support the previous judicial determinations that the property was sold in violation of MassHealth's lien, that rescission of the sale was warranted, and that Kupperstein and Sheedy rented the property to third parties at a time Kupperstein and Sheedy did not own it.

Instead, Kupperstein contends that the first motion judge's decision on MassHealth's initial motion for summary judgment should be considered the “law of the case” with respect to his rights to the property. “[T]he law of the case doctrine is permissive and not mandatory.” Vittands v. Sudduth, 49 Mass. App. Ct. 401, 413 n.19 (2000). Generally speaking, “[t]he ‘law of the case’ doctrine reflects the reluctance of a second judge to rule differently from the first judge on a case, issue, or question of fact or law once decided by final judgment or on appeal.” Id. The rationale for this reluctance is that “[a]n issue once decided, should not be reopened unless the evidence on a subsequent [proceeding] was substantially different, controlling authority has since made a contrary decision of the law applicable to such issues, or the decision was clearly erroneous and would work a manifest injustice” (quotations and citations omitted). King v. Driscoll, 424 Mass. 1, 8 (1996).

In this case there was no final judgment and the second motion judge was free to reconsider the first motion judge's disposition. See Goulet v. Whitin Mach. Works, Inc., 399 Mass. 547, 554 (1987) (trial judge not precluded from deciding anew pretrial judge's denial of motion to amend complaint). The First Circuit has already provided a clear explanation of why the second motion judge adopted the Probate and Family Court's orders: to resolve the conflict between the first Superior Court motion judge's ruling (that Thibodeau had the right to sell the house to Kupperstein, and the Probate and Family Court judge's ruling that the transfer of the real property was invalid.

“For those willing to walk the procedural maze, MassHealth first sued Thibodeau, Sheedy, and Kupperstein in Suffolk Superior Court, which dismissed MassHealth's claim for fraud (because the complaint alleged misrepresentations to Thibodeau, not MassHealth), and left the sale intact (finding that Thibodeau, who inherited the house, had the power to sell it in her individual capacity).

However, the judge also held that MassHealth's lien was still valid and urged the agency to ask the probate court to force the property's sale to satisfy the debt. MassHealth took the court's cue and filed its petition. In granting it, the probate court voided the transfer to Sheedy, saying it violated MassHealth regulations. The superior court later resolved any conflict between its decision and that of the probate court by adopting the probate court's conclusion and entering judgment for MassHealth against Kupperstein.”

In re Kupperstein, 943 F.3d at 16 n.3. By the time the second motion judge reviewed the case, the legal landscape had changed substantially, see King v. Driscoll, supra, and in a manner at least partially foreseen by the first motion judge.⁷ The second motion judge properly resolved the conflict between the Superior Court and Probate and Family Court decisions.

Kupperstein also asserts that the first motion judge's partial summary judgment order, which denied summary judgment for MassHealth on its unjust enrichment claim (Count III) and allowed summary judgment for Kupperstein on MassHealth's treble damages claim (Count VIII), also should be considered the “law of the case,” thus barring the second motion judge from entering judgment for MassHealth on those counts. Kupperstein does not advance an appellate argument on this issue, except to state that the earlier ruling was in his favor and that “[a]ny representation to the contrary is a fraud on the court.”

Kupperstein's contention ignores the fact that the law of the case doctrine is permissive, no final judgment had entered, and the first motion judge denied summary judgment to MassHealth because “there has been no determination by the Probate and Family Court as to whether [MassHealth] is entitled to an order compelling Thibodeau as personal representative to petition for a license to sell the Property ․ Accordingly, there remains a mixed question of fact and law as to whether HHS's ability to recover from the Property has or has not been cut off, and therefore as to whether the [d]efendants have or have not been enriched at HHS's expense.” After the Probate and Family Court judge applied the law to the undisputed facts and ruled on that question in MassHealth's favor, it was entirely appropriate for the second motion judge to revisit the issue in the Superior Court on MassHealth's renewed motion for summary judgment. As to Count VIII, MassHealth's statutory treble damages claim, on which the first motion judge had earlier granted summary judgment to Kupperstein, “an order for partial summary judgment is ․ subject to revision at any time by the trial court prior to the entry of a judgment disposing of all claims against all parties to the action.” Linkage Corp. v. Trustees of Boston Univ., 425 Mass. 1, 14 (1997), quoting Acme Eng'g & Mfg. Corp. v. Airadyne Co., 9 Mass. App. Ct. 762, 764 (1980). Until entry of judgment, the order was “subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.”⁸ Mass. R. Civ. P. 54 (b), 365 Mass. 820 (1974).

Accordingly, the judgment of the Superior Court is affirmed.⁹ , ¹⁰

So ordered.

Affirmed.

FOOTNOTES

4.   During the pendency of the Probate and Family and Superior Court actions, Kupperstein voluntarily filed a petition for Chapter 7 bankruptcy, which triggered the automatic stay of “the commencement or continuation ․ of a judicial, administrative, or other action or proceeding against the debtor” for debts incurred before the filing. 11 U.S.C. § 362(a).

5.   The bankruptcy court order lifting the stay states in pertinent part:“The actions presently pending in the Bristol County Probate and Family Court (Docket No. BR114P0127EA), the Suffolk County Superior Court (Civil Action No. 2015-2036-C), and the Massachusetts Land Court (Docket No. 17 MISC 000593(RBF)) may proceed in all respects, except movant may not seek to enforce against the debtor, Donald C. Kupperstein, any judgment with respect to the $191,741.79 MassHealth reimbursement claim or attempt to collect from Kupperstein all or any part thereof. In all other respects the automatic stay with respect to the aforementioned proceedings is lifted, including the assessment by the courts against Kupperstein of any restitution and sanction amounts (including under Mass. Gen. Laws ch. 231, § 6F) and further proceedings to enforce and collect those amounts. See In re Dignley, 852 F.3d 1143 (9th Cir. 2017); Alpern v. Lieb, 11 F.3d 689 (7th Cir. 1993).”

6.   The Superior Court judgment incorporated by reference the two orders of the Probate and Family Court, and a judgment of the Land Court rejecting Attorney Kupperstein's efforts to obtain title to the property. The April 12, 2018, and May 10, 2018, Probate and Family Court orders were entered while the automatic stay, which ran from January 11, 2018, to August 13, 2018, was in effect.

7.   The first motion judge observed “Thibodeau's sale to Sheedy notwithstanding, the Property may still be subject to a petition in Probate Court seeking a license to sell the Property to satisfy the Estate's debt to HHS, and this court can make no ruling as to the Property's status in that regard.”

8.   Kupperstein also claims that the award of treble damages under G. L. c. 118E, § 44, constituted an unlawful attempt to collect on a judgment in violation of the automatic stay. Kupperstein waived any claim that an assessment of damages under § 44 was improper as a matter of State law when he failed to brief or argue the issue in the trial court and on appeal. We express no opinion as to the applicability of the stay or the final amount of any proof of claim (after the sale proceeds are applied), as the ultimate resolution of those questions lies with the bankruptcy court. The record does not indicate whether the real estate, which was abandoned by the trustee in bankruptcy, was sold, or what amounts may have been recovered. We do not express any opinion as to the value of or amounts recoverable from the real estate, as we have no record on those matters.

9.   In the event that further Federal court litigation results in a modification of the bankruptcy court judge's orders with respect to the automatic stay, or holds that the Superior Court judgment violated the automatic stay in whole or in part, the appropriate remedy under State law is the filing of a motion in the Superior Court pursuant to Mass. R. Civ. P. 60 (b) (4) or (6), 365 Mass. 828 (1974), provided there is a legitimate, good faith, and nonfrivolous basis for doing so.

10.   Kupperstein's request for appellate attorney's fees and costs is denied.