Tausevich v. Board of Appeals of Stoughton

• Decision Date: 12 April 1988
• Citation: Tausevich v. Board of Appeals of Stoughton, 521 N.E.2d 385, 402 Mass. 146 (Mass. 1988)
• Parties: Edward TAUSEVICH, et al. 1 v. BOARD OF APPEALS OF STOUGHTON. 2
• Court: Supreme Judicial Court of Massachusetts

Page 385

521 N.E.2d 385

402 Mass. 146

Edward TAUSEVICH, et al.¹ v.BOARD OF APPEALS OF STOUGHTON. ²

Supreme Judicial Court of Massachusetts Norfolk.

Argued Feb. 2, 1988.

Decided April 12, 1988.

Kenneth B. Hoffman(Mark Roder, Boston, with him), for plaintiffs.

John W. Giorgio, Boston, for defendants.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS and O'CONNOR, JJ.

WILKINS, Justice.

In this casewe conclude that determinations made on a partial summary judgment in an earlier action between the parties are not entitled to collateral estoppel or issue preclusion effect.We do so because the earlier action, in which an apparently substantial issue remained undecided, was terminated by a stipulation of dismissal without prejudice and because the partial summary judgment never was expressed in an appealable judgment or order.

Since 1978the plaintiffs have owned property in Stoughton that is used for professional and business offices.Use of the premises for such offices became a nonconforming one when the town rezoned the area from business to residential uses in 1964.

In this action the plaintiffs seek to overturn a decision of the Stoughton board of appeals (board) that denied them permission to extend professional and business office uses on the premises.The board ruled that the plaintiffs' use of the building was substantially different from the use for which the building had been used at the time of the zoning change (and until the plaintiffs purchased it).The board therefore refused to grant a special permit under a zoning by-law provision authorizing a change from one nonconforming use to another "not substantially different use."

In an earlier proceeding the board had revoked a building permit issued to the plaintiffs for an expansion of business uses on the premises.The plaintiffs appealed to the Superior Court, claiming that under the Stoughton zoning by-law they were entitled to expand as a matter of right and that in their decision making the defendants had violated the open meeting law (G.L. c. 39, § 23B [1986 ed.] ).In that action, the plaintiffs moved for partial summary judgment, on their claim that they were entitled as of right to a building permit allowing expansion of their nonconforming use.The judge rejected that claim and ordered partial summary judgment for the board.No separate judgment was entered pursuant to Mass.R.Civ.P. 54(b), 365 Mass. 820(1974).The judge decided that the evidence before the board warranted its determination that the plaintiffs' business constituted a substantially different use from the business which had been on the premises at the time of the 1964 rezoning.

In the action now before us the board moved for and obtained summary judgment on the ground that (1) the special permit which the plaintiffs seek could be obtained only if their use is not substantially different from the lawful nonconforming use, (2) the partial summary judgment entered in the earlier action showed that the plaintiffs' use was substantially changed from the lawful nonconforming use, and (3)the plaintiffs are precluded from relitigating the change of use issue.In their appeal from a judgment for the board, the plaintiffs argue that preclusion is improper because there was no appealable judgment in the first action and because that action was dismissed without prejudice by agreement.³

For purposes of our discussion, we assume that the issue whether the plaintiffs' use of the premises is substantially different from the lawful nonconforming use was decided adversely to the plaintiffs in the first action.⁴We conclude, nevertheless, that this is not an appropriate occasion on which to preclude the plaintiffs from relitigating that issue.

We reject the plaintiffs' argument that the absence of a final judgment in the earlier action is by itself sufficient to bar issue preclusion.If a separate, and hence appealable, judgment had been entered under Mass.R.Civ.P. 54(b) and thereafter the action had been dismissed, the plaintiffs might well be foreclosed from relitigating the issue.The better view is that a final judgment in the traditional sense is not essential to the applicability of issue preclusion.SeeRestatement (Second) of Judgments§ 13(1982)(a judgment may be "final" for purposes of issue preclusion if the earlier adjudication was "sufficiently firm to be accorded conclusive effect").Factors supporting the conclusion that a decision is final for the purpose of preclusion are that the parties were fully heard, the judge's decision is supported by a reasoned opinion, and the earlier opinion was subject to review or was in fact reviewed.Id. comment g. " 'Finality' in the context here relevant may mean little more than that the litigation of a particular issue has reached such a stage that a court sees no really good reason for permitting it to be litigated again."Lummus Co. v. Commonwealth Oil Refining Co., 297 F.2d 80, 89(2d Cir.1961), cert. denied, 368 U.S. 986, 82 S.Ct. 601, 7 L.Ed.2d 524(1962).

In general, where issue preclusion has been applied on the basis of a preliminary or interlocutory order, that order was appealed or could have been appealed.See, e.g., Alexander v. Chicago Park Dist., 773 F.2d 850, 854-855(7th Cir.1985), cert. denied, 475 U.S. 1095, 106 S.Ct. 1492, 89 L.Ed.2d 894(1986);Miller Brewing Co. v. Jos. Schlitz Brewing Co., 605 F.2d 990, 995-996, (7th Cir.1979), cert. denied, 444 U.S. 1102, 100 S.Ct. 1067, 62 L.Ed.2d 787(1980);Zdanok v. Glidden Co., 327 F.2d 944, 955(2d Cir.), cert. denied, 377 U.S. 934, 84 S.Ct. 1338, 12 L.Ed.2d 298(1964);Lummus Co. v. Commonwealth Oil Refining Co., supra, at 89-90.See generally18 C.A.Wright, A.R. Miller & E.H. Cooper, Federal Practice and Procedure: Jurisdiction and Related Matters, § 4434(1981).In Avondale Shipyards, Inc. v. Insured Lloyd's, 786 F.2d 1265, 1270(5th Cir.1986), the court held that no preclusive effect should be given to an order for partial summary judgment where the case was settled before any judgment on the merits was entered.The court said "[w]e are not aware of any federal appellate decision which has applied preclusion to a prior nonfinal ruling as to which appellate review was unavailable, nor any which contradicts our above-cited opinions stating that partial summary...