Roche v. Roche

• Decision Date: 04 June 1986
• Citation: 493 N.E.2d 523,22 Mass.App.Ct. 306
• Parties: Kathleen M. ROCHE v. John J. ROCHE et al. 1 (and a companion case 2 ).
• Court: Appeals Court of Massachusetts

Page 523

493 N.E.2d 523

22 Mass.App.Ct. 306

Kathleen M. ROCHE v. John J. ROCHE et al. ¹

(and a companion case ²).

Appeals Court of Massachusetts,

Berkshire.

Argued March 7, 1986.

Decided June 4, 1986.

Jack E. Houghton, Jr., Pittsfield, for plaintiff.

Vincent A. Bongiorni, Springfield, for John J. Roche.

Robert M. Rosen, Boston, for James P. McCauley, III.

Before GRANT, BROWN and KASS, JJ.

KASS, Justice.

Although they have made their way through different courts, both appeals arise out of a common set of facts. The appeals may be considered together. In each case, claim preclusion was the basis for a disposition adverse to Kathleen M. Roche.

Here, in outline, are the facts:

During the pendency of divorce proceedings between them, Kathleen and John J. Roche permitted second mortgage payments on the marital home to slip in arrears. The mortgagee, Household Finance Corporation (HFC), took steps to foreclose and, at a public auction held March 25, 1983, sold the Roche house to McCauley, a close friend of John's. Three weeks later, on April 15, 1983, too late to be of much use to Kathleen, judgment entered in a Probate Court in the Roche divorce case requiring John, among other things, to maintain payments on the second mortgage note and allowing Kathleen to occupy the house. ³

In the interval, Kathleen had launched an action on April 6, 1983, in the Superior Court to set aside the conveyance from HFC to McCauley. The grounds asserted in the complaint for so doing were that HFC had waived the Roches' default by accepting makeup payments on two occasions, and that HFC had failed to inform--indeed, had misled--Kathleen about the date to which a previously scheduled public foreclosure sale had been adjourned. During depositions of John and McCauley and during a jury-waived trial, counsel for Kathleen probed the relationship between John and McCauley and whether McCauley had played the role of stalking horse for John. Kathleen did not, however, move to amend her complaint to add John as a party or to include allegations that McCauley had been other than a bona fide purchaser.

During a recess of the trial, Kathleen's counsel learned from a witness for HFC that John had supplied the deposit for McCauley's purchase. Again, there was no effort to amend Kathleen's pleadings or to open up the case through a motion for postjudgment relief. Final judgments were entered for HFC and McCauley.

1. The Probate Court case. On May 4, 1984, seventeen days after entry of judgment in the Superior Court case, Kathleen filed a complaint in the Probate Court. That complaint--charitably read--alleged collusive action by John and McCauley to frustrate any order that the Probate Court might make in Kathleen's favor concerning the house. None of the relief demanded is apt, but the reader of the complaint discerns the general idea that what Kathleen wants is to have the house placed at her disposal conformably with the divorce judgment. A Probate Court judge allowed motions to dismiss. A notation by the Probate Court judge indicates that the ground for dismissal was that the Superior Court judgment precluded litigation of the issues which Kathleen sought to raise in the Probate Court; i.e., those matters were barred by the prior adjudication.

John was not a party in the Superior Court proceeding and the core issues raised by the Probate Court complaint were never raised in the Superior Court. The proceedings below do not, therefore, present the prototypical res judicata case; i.e., one in which there has been a final judgment (Restatement [Second] of Judgments § 13 [1982] ), concerning parties to the prior action (Restatement [Second] of Judgments § 34), of an issue actually litigated and essential to the judgment (Restatement [Second] of Judgments § 27) and over which the court had jurisdiction (Restatement [Second] of Judgments § 20). See Almeida v. Travelers Ins. Co., 383 Mass. 226, 229-230, 418 N.E.2d 602 (1981); Dowd v. Morin, 18 Mass.App.Ct. 786, 793-794, 471 N.E.2d 120 (1984).

What the proceedings below present is a question of claim splitting resulting in claim preclusion, i.e., a bar against the plaintiff's pursuing rights and remedies arising from the same transaction which could have been raised in the case which went to judgment. Mackintosh v. Chambers, 285 Mass. 594, 596, 190 N.E. 38 (1934). Boyd v. Jamaica Plain Co-op. Bank, 7 Mass.App.Ct. 153, 160, 386 N.E.2d 775 (1979). Mongeau v. Boutelle, 10 Mass.App.Ct. 246, 251-252, 407 N.E.2d 352 (1980). McSorley v. Hancock, 11 Mass.App.Ct. 563, 417 N.E.2d 982 (1981). Bradford v. Richards, 11 Mass.App.Ct. 595, 598-601, 417 N.E.2d 1234 (1981). Fluhr v. Allstate Ins. Co., 15 Mass.App.Ct. 983, 984-985, 447 N.E.2d 1254 (1983). Isaac v. Schwartz, 706 F.2d 15, 17 (1st Cir.1983). Restatement (Second) of Judgments § 24.

That John was not a party to the Superior Court trial does not eliminate claim splitting from consideration. A person who is not a party to the prior action but whose interest is represented by a party may have the benefit of the judgment in the prior case. See Morganelli v. Building Inspector of Canton, 7 Mass.App.Ct. 475, 481, 388 N.E.2d 708 (1979); Southwest Airlines Co. v. Texas Internatl. Airlines, 546 F.2d 84, 95 (5th Cir.1977), and cases cited; Restatement (Second) of Judgments § 41. The factual premises on which Kathleen pitches her latter action (the one in the Probate Court) is that John provided all the money with which McCauley bought the Roche house at the foreclosure sale. This suggests a resulting trust, a trust which may arise when one person supplies money to acquire property and title is taken in the name of another. ⁴ Hazleton v. Lewis, 267 Mass. 533, 538, 166 N.E. 876 (1929). Saulnier v. Saulnier, 328 Mass. 238, 240, 103 N.E.2d 225 (1952). Meskell v. Meskell, 355 Mass. 148, 150, 243 N.E.2d 804 (1969). See Bartula v. Bartula, 6 Mass.App.Ct. 907, 908, 378 N.E.2d 466 (1978). McCauley, on the facts alleged, stood as trustee for John. In that status McCauley might be said to have represented John's beneficial interest in the house. A trustee may represent interests of beneficiaries for judgment preclusion purposes. Southwest Airlines Co. v. Texas Internatl. Airlines, 546 F.2d at 95. Implied trustees, however, do not fit plausibly in a representative capacity. Theirs is not a position of fiduciary responsibility. The customarily applicable word of "imposing" a constructive trust or resulting trust signals the remedial nature of the concepts. See Restatement (Second) of Judgments § 41, comment c. There is no suggestion that John controlled the defense in the Superior Court litigation. See Southwest Airlines Co. v. Texas Internatl. Airlines, 546 F.2d at 95. Since John played no role directly or vicariously in the Superior Court proceeding, we are of opinion that he is not entitled to claim a benefit from the judgment in that case.

There is an additional reason why we think the judgment in the first case did not preclude a trial of the second action. To be sure, both cases stem from the same transaction, i.e., connected acts forming a single life-situation. See Restatement (Second) of Judgments § 24, comment a. The facts common to both cases are: John failed to make the second mortgage payments; the second mortgagee exercised its right to accelerate the second mortgage note; the second mortgagee foreclosed its mortgage McCauley made the successful bid (it was in excess of the second mortgage) at the foreclosure sale; and McCauley was a close friend of John's.

In the Superior Court case the primary defendant was HFC and McCauley was joined because he held the title. Should the action to upset the foreclosure sale succeed, it would be necessary to undo the conveyance which followed from it. It is apparent from the record in the Superior Court case that Kathleen's counsel began to sniff the possibility that John and McCauley had conspired to have McCauley bid and buy in John's behalf with the object of thwarting a Probate Court judgment adverse to John. In a deposition of McCauley, Kathleen's counsel, as we have previously noted, put questions which probed for evidence tending to prove that McCauley acted as straw for John. Those inquiries were not successful. A better lead developed when an HFC employee, during a recess, let it fall that the deposit check furnished by McCauley had been John's. At that juncture it was possible for Kathleen to move to amend her complaint to add John as a party defendant and to add allegations that...