NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-456
TJR SERVICES, LLC
vs.
WILLIAM L. HUTCHINSON & another.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, TJR Services, LLC (TJR), filed a complaint
in the Land Court against defendants William L. Hutchinson and
Deanna M. Bowen2 (collectively, the Hutchinsons) seeking a
determination that it was the lawful owner of property in
Duxbury (the Property) following a foreclosure sale. A judge of
the Land Court bifurcated the case. After a trial on the first
set of issues, the judge issued an order with findings of fact
and conclusions of law. After further argument, the judge
1Deanna M. Bowen. As is our custom, we set forth the parties' names as they appear in the complaint.
2As noted in the judgment, Deanna M. Bowen is also known as Deanna B. Hutchinson, and we thus refer to her as such going forward. issued a judgment declaring that the foreclosure deed was valid,
TJR held valid title to the Property, and the Hutchinsons no
longer held an interest in the Property. On appeal, the
Hutchinsons argue that the judge's findings and judgment do not
comply with the statute of frauds, that TJR's claims are
precluded by a prior Housing Court judgment, and that the Land
Court entered conflicting judgments. We affirm.
Background. In February 2007, the Hutchinsons executed a
promissory note (the Note) and granted a mortgage (the Mortgage)
to Washington Mutual Bank, F.A. (WAMU), to finance the purchase
of the Property. Around March 1, 2007, WAMU sold its right,
title, and interest in the Note and Mortgage to WAMU Asset
Acceptance Corp. (WAMU Acceptance). Later in March 2007, WAMU
Acceptance re-sold the Note and Mortgage, for value, to the WAMU
Mortgage Pass-Through Certificates Series 2007-OA3 Trust (OA3
Trust). In October 2008, the OA3 Trust's second trustee,
LaSalle Bank, merged into Bank of America. In November 2010,
U.S. Bank succeeded Bank of America as a trustee of the OA3
Trust. In December 2010, the Hutchinsons were in default under
the Note, and as a result, in December 2015, U.S. Bank, as
trustee of the OA3 Trust, foreclosed on the Hutchinson's
mortgage. In 2017, the OA3 Trust sold the property to Tank
Menace, LLC (Tank Menace), and in 2018, Tank Menace sold the
Property to TJR.
2 TJR filed a complaint in the Land Court in April 2019 and
amended it in May 2019. In part, TJR sought a declaratory
judgment that it was the lawful owner of the Property. In July
2019, the Hutchinsons filed their answer and counterclaimed
against TJR, asserting that TJR did not have a valid interest in
the Property. In addition, the Hutchinsons filed a third-party
complaint against Tank Menace, seeking a declaration that Tank
Menace had no right, title, or interest in the Property, and
requesting relief quieting their alleged title. In July 2019,
Tank Menace moved to dismiss the Hutchinsons' complaint and,
after a hearing, disclaimed any interest in the Property. The
judge concluded that Tank Menace no longer held an interest in
the property, issued a judgment to that effect, and dismissed
the remaining claims against Tank Menace as moot.
In September 2019, the Hutchinsons moved for summary
judgment on their claims against TJR, and in November 2019, the
judge denied the motion. In March 2020, the judge bifurcated
the case and directed the parties to complete discovery on the
issues of (1) the validity of a 2012 assignment and (2) the
propriety of the foreclosure on the Hutchinsons' mortgage. In
August and November 2020, the parties cross-moved for summary
judgment on the "Phase I" issues set out by the judge. In March
2022, an amended order entered denying both parties' motions but
3 making findings of undisputed material facts, narrowing the
issues for trial.
In advance of trial, the judge set forth two unresolved
issues to be addressed at trial: (1) whether U.S. Bank was a
trustee of the OA3 Trust as of the date of the foreclosure, and
(2) if yes, whether U.S. Bank complied with ¶ 22 of the
mortgage. In October 2022, after a trial, the judge issued an
order with his findings of fact and conclusions of law. In
November 2022, after a hearing, the judge concluded that he had
resolved all pertinent issues in the case. The judge issued a
judgment declaring that the foreclosure deed was valid, TJR held
valid title to the Property, and the Hutchinsons no longer held
any interest in the Property.
Discussion. The denial of a motion for summary judgment
cannot be reviewed on appeal after a trial on the merits. See
Elles v. Zoning Bd. of Appeals of Quincy, 450 Mass. 671, 674
(2008). However, the underlying legal issues forming the basis
of the motion may be reviewed on appeal. See Lavoie v. A
Justice of the Dist. Court Dep't, 484 Mass. 1055, 1055 (2020).
On appeal, we accept the judge's findings of fact unless they
are "clearly erroneous," (citation omitted), and "do not review
questions of fact if any reasonable view of the evidence and the
rational inferences to be drawn therefrom support the judge's
findings." Martin v. Simmons Props., LLC, 467 Mass. 1, 8
4 (2014). We review the judge's conclusions of law de novo. See
Trace Constr., Inc. v. Dana Barros Sports Complex, LLC, 459
Mass. 346, 351 (2011).
1. Statute of frauds. The Hutchinsons argue that, at
trial, TJR failed to produce documentary evidence showing that
WAMU assigned the Note and Mortgage to the OA3 Trust; therefore,
they assert that the assignments from WAMU to WAMU Acceptance,
and then from WAMU Acceptance to the OA3 Trust, are invalid
under the statue of frauds. The judge below, in denying summary
judgment and establishing undisputed facts for trial per Mass.
R. Civ. P. 56 (d), concluded, based in part on the Hutchinsons'
admissions, that the OA3 Trust became the holder of the Note and
Mortgage in 2007. The Hutchinsons assert that the judge's prior
findings did not relieve TJR of its burden of demonstrating a
valid assignment and compliance with the statute of frauds at
trial. We disagree.
Under Mass. R. Civ. P. 56 (d), where a judge hears a
summary judgment motion but does not resolve all issues and a
trial is still necessary, "the court . . . shall if practicable
ascertain what material facts exist without substantial
controversy." Lavoie, 484 Mass. at 1055 n.2, quoting Mass. R.
Civ. P. 56 (d). "It behooves judges, where practicable, to
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-456
TJR SERVICES, LLC
vs.
WILLIAM L. HUTCHINSON & another.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, TJR Services, LLC (TJR), filed a complaint
in the Land Court against defendants William L. Hutchinson and
Deanna M. Bowen2 (collectively, the Hutchinsons) seeking a
determination that it was the lawful owner of property in
Duxbury (the Property) following a foreclosure sale. A judge of
the Land Court bifurcated the case. After a trial on the first
set of issues, the judge issued an order with findings of fact
and conclusions of law. After further argument, the judge
1Deanna M. Bowen. As is our custom, we set forth the parties' names as they appear in the complaint.
2As noted in the judgment, Deanna M. Bowen is also known as Deanna B. Hutchinson, and we thus refer to her as such going forward. issued a judgment declaring that the foreclosure deed was valid,
TJR held valid title to the Property, and the Hutchinsons no
longer held an interest in the Property. On appeal, the
Hutchinsons argue that the judge's findings and judgment do not
comply with the statute of frauds, that TJR's claims are
precluded by a prior Housing Court judgment, and that the Land
Court entered conflicting judgments. We affirm.
Background. In February 2007, the Hutchinsons executed a
promissory note (the Note) and granted a mortgage (the Mortgage)
to Washington Mutual Bank, F.A. (WAMU), to finance the purchase
of the Property. Around March 1, 2007, WAMU sold its right,
title, and interest in the Note and Mortgage to WAMU Asset
Acceptance Corp. (WAMU Acceptance). Later in March 2007, WAMU
Acceptance re-sold the Note and Mortgage, for value, to the WAMU
Mortgage Pass-Through Certificates Series 2007-OA3 Trust (OA3
Trust). In October 2008, the OA3 Trust's second trustee,
LaSalle Bank, merged into Bank of America. In November 2010,
U.S. Bank succeeded Bank of America as a trustee of the OA3
Trust. In December 2010, the Hutchinsons were in default under
the Note, and as a result, in December 2015, U.S. Bank, as
trustee of the OA3 Trust, foreclosed on the Hutchinson's
mortgage. In 2017, the OA3 Trust sold the property to Tank
Menace, LLC (Tank Menace), and in 2018, Tank Menace sold the
Property to TJR.
2 TJR filed a complaint in the Land Court in April 2019 and
amended it in May 2019. In part, TJR sought a declaratory
judgment that it was the lawful owner of the Property. In July
2019, the Hutchinsons filed their answer and counterclaimed
against TJR, asserting that TJR did not have a valid interest in
the Property. In addition, the Hutchinsons filed a third-party
complaint against Tank Menace, seeking a declaration that Tank
Menace had no right, title, or interest in the Property, and
requesting relief quieting their alleged title. In July 2019,
Tank Menace moved to dismiss the Hutchinsons' complaint and,
after a hearing, disclaimed any interest in the Property. The
judge concluded that Tank Menace no longer held an interest in
the property, issued a judgment to that effect, and dismissed
the remaining claims against Tank Menace as moot.
In September 2019, the Hutchinsons moved for summary
judgment on their claims against TJR, and in November 2019, the
judge denied the motion. In March 2020, the judge bifurcated
the case and directed the parties to complete discovery on the
issues of (1) the validity of a 2012 assignment and (2) the
propriety of the foreclosure on the Hutchinsons' mortgage. In
August and November 2020, the parties cross-moved for summary
judgment on the "Phase I" issues set out by the judge. In March
2022, an amended order entered denying both parties' motions but
3 making findings of undisputed material facts, narrowing the
issues for trial.
In advance of trial, the judge set forth two unresolved
issues to be addressed at trial: (1) whether U.S. Bank was a
trustee of the OA3 Trust as of the date of the foreclosure, and
(2) if yes, whether U.S. Bank complied with ¶ 22 of the
mortgage. In October 2022, after a trial, the judge issued an
order with his findings of fact and conclusions of law. In
November 2022, after a hearing, the judge concluded that he had
resolved all pertinent issues in the case. The judge issued a
judgment declaring that the foreclosure deed was valid, TJR held
valid title to the Property, and the Hutchinsons no longer held
any interest in the Property.
Discussion. The denial of a motion for summary judgment
cannot be reviewed on appeal after a trial on the merits. See
Elles v. Zoning Bd. of Appeals of Quincy, 450 Mass. 671, 674
(2008). However, the underlying legal issues forming the basis
of the motion may be reviewed on appeal. See Lavoie v. A
Justice of the Dist. Court Dep't, 484 Mass. 1055, 1055 (2020).
On appeal, we accept the judge's findings of fact unless they
are "clearly erroneous," (citation omitted), and "do not review
questions of fact if any reasonable view of the evidence and the
rational inferences to be drawn therefrom support the judge's
findings." Martin v. Simmons Props., LLC, 467 Mass. 1, 8
4 (2014). We review the judge's conclusions of law de novo. See
Trace Constr., Inc. v. Dana Barros Sports Complex, LLC, 459
Mass. 346, 351 (2011).
1. Statute of frauds. The Hutchinsons argue that, at
trial, TJR failed to produce documentary evidence showing that
WAMU assigned the Note and Mortgage to the OA3 Trust; therefore,
they assert that the assignments from WAMU to WAMU Acceptance,
and then from WAMU Acceptance to the OA3 Trust, are invalid
under the statue of frauds. The judge below, in denying summary
judgment and establishing undisputed facts for trial per Mass.
R. Civ. P. 56 (d), concluded, based in part on the Hutchinsons'
admissions, that the OA3 Trust became the holder of the Note and
Mortgage in 2007. The Hutchinsons assert that the judge's prior
findings did not relieve TJR of its burden of demonstrating a
valid assignment and compliance with the statute of frauds at
trial. We disagree.
Under Mass. R. Civ. P. 56 (d), where a judge hears a
summary judgment motion but does not resolve all issues and a
trial is still necessary, "the court . . . shall if practicable
ascertain what material facts exist without substantial
controversy." Lavoie, 484 Mass. at 1055 n.2, quoting Mass. R.
Civ. P. 56 (d). "It behooves judges, where practicable, to
assist parties in identifying material factual issues that are
undisputed, and therefore do not need to be tried, and thereby
5 streamline trials." Lavoie, supra at 1055 n.3. Rule 4 of the
Rules of the Land Court (2005) provides a procedure for this
process, requiring parties to put forth material facts they
contend are undisputed, accompanied by support. The opposing
party may then respond by admitting the fact or disputing it,
again accompanied by support. If the opposing party fails to
properly dispute a fact, the fact is admitted.
Here, TJR claimed it was undisputed that the Note and
Mortgage were transferred to the OA3 Trust in 2007. In support,
TJR cited an interrogatory response from the Hutchinsons where
they admitted that the Mortgage was transferred from WAMU to
WAMU Acceptance, and then from WAMU Acceptance to the OA3 Trust,
in 2007. The Hutchinsons protest that they lacked personal
knowledge of the transactions between WAMU and the OA3 Trust
and, therefore, the judge erred in his reliance on their
interrogatory answers in establishing undisputed facts. This
argument is unavailing; the judge appropriately relied on the
Hutchinsons' interrogatory responses as admissible evidence.
See Kourouvacilis v. American Fed'n of State, County & Mun.
Employees, 65 Mass. App. Ct. 521, 533 n.18 (2006) ("as an
'admission,' i.e., an extrajudicial statement of a party
opponent, the adverse interrogatory answer could be admitted in
evidence against [the party]"); Beaupre v. Cliff Smith &
Assocs., 50 Mass. App. Ct. 480, 484 n.8 (2000) ("interrogatory
6 answers constitute admissions of a party opponent . . . which
are available for evidentiary use by any adverse party to the
litigation").
In response, per Rule 4 of the Rules of the Land Court, the
Hutchinsons were required to dispute TJR's asserted facts by
submitting admissible evidence to the contrary. The Hutchinsons
failed to meet this burden. Instead, the Hutchinsons admitted
statements of fact as undisputed and produced no admissible
evidence to suggest otherwise. Because the Hutchinsons failed
to properly demonstrate these facts were disputed, the judge
acted properly pursuant to Mass. R. Civ. P. 56 (d) and Rule 4 of
the Rules of the Land Court in examining the pleadings and the
evidence before him and determining that the following facts
were undisputed and, therefore, stipulated to at trial: in
2007, "WAMU sold to [WAMU Acceptance], for value, WAMU's right,
title and interest in the Note and the Mortgage," and "WAMU
Acceptance re-sold the Note and Mortgage, for value, to the OA3
Trust." See Lavoie, 484 Mass. at 1055 n.3; Community Nat'l Bank
v. Dawes, 369 Mass. 550, 553 (1976) (courts may rely on "answers
to interrogatories" for purposes of summary judgment).
Requiring TJR to re-prove facts that were previously deemed
undisputed per a summary judgment order would be contrary to
Mass. R. Civ. P. 56 (d)'s purpose to "streamline trials" and
interest in judicial efficiency. Lavoie, supra.
7 2. Res judicata. The Hutchinsons argue that TJR's claims
are precluded by a 2017 Housing Court judgment of dismissal
without prejudice against TJR's predecessor-in-interest, U.S.
Bank. Specifically, a Housing Court judge dismissed U.S. Bank's
claims for possession and unpaid use and occupancy without
prejudice after concluding that U.S. Bank lacked standing
because the mortgage was assigned to U.S. Bank as trustee of the
OA3 Trust; the plaintiff was US Bank as trustee of OA3.
Res judicata comprises both claim and issue preclusion.
See DeGiacomo v. Quincy, 476 Mass. 38, 41 (2016). "The
invocation of claim preclusion requires 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" (quotation and citation omitted).
Kobrin v. Board of Registration in Med., 444 Mass. 837, 843
(2005). Issue preclusion requires "(1) . . . a final judgment
on the merits in the prior adjudication; (2) the party against
whom preclusion is asserted was a party (or in privity with a
party) to the prior adjudication; and (3) the issue in the prior
adjudication was identical to the issue in the current
adjudication" (citation omitted). Id. at 843-844.
Here, neither claim nor issue preclusion apply because a
dismissal without prejudice is not considered a decision on the
merits under res judicata. See Chittenden Trust Co. v. Levitt,
8 26 Mass. App. Ct. 208, 212 (1988). See also Wright Mach. Corp.
v. Seaman-Andwall Corp., 364 Mass. 683, 693-694 (1974)
("judgment will not operate as res judicata in another action
involving the same parties and claim if it is based on grounds
usually raised in abatement, such as . . . dismissal without
prejudice"); Ogens v. Northern Indus. Chem. Co., 304 Mass. 401,
402-403 (1939) ("without prejudice" does not signify "limiting
the effect of an actual adjudication on the merits, but rather
. . . that no such adjudication was made"). Therefore, the
judge did not err in concluding that TJR's claims are not
precluded by the prior Housing Court judgment.
3. Conflicting judgments. The Hutchinsons also assert
that two judgments of the Land Court are in conflict: the
judgment entered on Count I of the Hutchinson's third-party
complaint against Tank Menace, granting declaratory judgment to
the Hutchinsons, and the judgment on TJR's complaint that TJR
has valid title to the Property and was assigned valid title to
the Property by Tank Menace. The Hutchinsons claim that because
of this alleged inconsistency, the judgment recognizing TJR's
interest in the Property is void. The Hutchinsons raise this
argument for the first time on appeal. "Objections, issues, or
claims -- however meritorious -- that have not been raised at
the trial level are deemed generally to have been waived on
appeal." Palmer v. Murphy, 42 Mass. App. Ct. 334, 338 (1997).
9 Because this claim "fits none of the usual exceptions to the
general rule that claims not raised below are waived on appeal,"
we need not address it.3 Id. at 338-339.
Judgment affirmed.
By the Court (Meade, Walsh & Smyth, JJ.4),
Clerk
Entered: February 28, 2025.
3 With regard to additional claims raised by the Hutchinsons, we conclude that they do not merit further discussion. See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954) ("Other points, relied on by the [appellants] but not discussed in this opinion, have not been overlooked. We find nothing in them that requires discussion").
4 The panelists are listed in order of seniority.