GARY W. CRUICKSHANK, Trustee v. MARIO LOZANO.

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

24-P-273

GARY W. CRUICKSHANK, trustee,1

vs.

MARIO LOZANO.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from a summary process judgment

entered against him in the Housing Court. This dispute arises

out of a Federal bankruptcy proceeding, which the defendant

initiated. With the approval of the bankruptcy judge, the

defendant contracted to convey a property he owned to a third

party (purchaser) "free and clear of all tenants and occupants."

But instead of delivering the property, the defendant moved into

the property and thwarted the sale. The purchaser obtained a

judgment (conveyance judgment) from the bankruptcy judge

ordering the bankruptcy trustee to convey the property to the

purchaser "free and clear of all liens, claims and

1 In bankruptcy of Mario Rene Lozano.
encumbrances." In furtherance of the conveyance judgment, the

trustee initiated the summary process action that is the subject

of this appeal to obtain possession of the property. Citing the

res judicata effect of the conveyance judgment, a Housing Court

judge issued judgment of possession to the trustee. The

defendant appealed. We affirm.

Background. On April 12, 2018, the defendant filed a

petition for bankruptcy protection in the United States

Bankruptcy Court for the District of Massachusetts. At the

time, the defendant owned a property at 52-54 Bicknell Street,

Dorchester (property). Eventually, the defendant sought and

received approval of the bankruptcy judge to sell the property.

In December of 2018, the defendant accepted an offer from the

purchaser and they entered into a purchase and sale agreement

(agreement), which provided that the property was to be

delivered free and clear of tenants and occupants. In February

of 2019, the bankruptcy judge ordered the sale of the property

and directed the defendant to close the transaction within

thirty days.

Shortly thereafter, the defendant and several of his family

members moved into the property. The Housing Court judge

"infer[red]" that this course of action was intended "to thwart

the sale contemplated under the agreement."

2
On August 1, 2019, the bankruptcy judge appointed plaintiff

Gary W. Cruickshank to serve as trustee over the defendant's

bankruptcy estate. At that point, the trustee "had full

ownership of the property."

In response to the defendant's moving into the property,

the purchaser initiated an adversary proceeding in bankruptcy

court seeking specific performance of the agreement. After a

trial in which both the defendant and the trustee participated,

the bankruptcy judge issued the conveyance judgment, ordering

the trustee to convey the property to the purchaser "free and

clear of all liens, claims and encumbrances." The conveyance

judgment provided that the trustee was "authorized to perform

all obligations of the seller under the Agreement."2 The

defendant appealed that judgment to the United States Court of

Appeals for the First Circuit. On September 24, 2024, the First

Circuit affirmed the conveyance judgment. Lozano v. Sanchez,

U.S. Ct. App., No. 23-1611 (1st Cir. September 24, 2024).

Meanwhile, the trustee initiated this summary process

action in the Housing Court seeking possession of the property

so that he could convey it free and clear of all tenants and

2 The bankruptcy judge entered the original conveyance
judgment on December 29, 2022. She then issued an amended
conveyance judgment on February 27, 2023, clarifying that "the
Trustee is authorized to exercise any rights of the seller under
the Agreement."

3
occupants, as required under the agreement and the conveyance

judgment. The Housing Court judge granted the trustee

possession. The defendant appealed.

Discussion. On review of a judgment in a jury-waived

proceeding, we accept the judge's findings of fact unless

clearly erroneous and review the rulings of law de novo. South

Boston Elderly Residences, Inc. v. Moynahan, 91 Mass. App. Ct.

455, 462 (2017). Discretionary decisions are reviewed for an

abuse of discretion, which will only be found if "the judge made

a clear error of judgment in weighing the factors relevant to

the decision, such that the decision falls outside the range of

reasonable alternatives" (quotation and citation omitted). L.L.

v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

Because the bankruptcy judge appointed the trustee to

administer the defendant's bankruptcy estate, the trustee had

standing to bring the summary process action against the

defendant to effectuate the Federal judgment. See Rare Coin

Galleries of Am., Inc., 862 F.2d 896, 901 (1st Cir. 1988) (when

trustee is appointed, trustee "steps into the shoes of the

debtor for the purposes of asserting or maintaining the debtor's

causes of action[ ]"); Augustin v. Danvers Bank, 486 F.Supp.2d

99, 103 (D. Mass. 2007), quoting 11 U.S.C. § 541 (a) (1) ( "Upon

filing for bankruptcy protection, 'all legal or equitable

interests of the debtor in property as of the commencement of

4
the case' become property of the bankruptcy estate").

Specifically, the trustee had standing to initiate proceedings

to evict the defendant and his family so that the trustee could

convey the property to the purchaser "free and clear of all

tenants and occupants" pursuant to the agreement and the

conveyance judgment.

As the Housing Court judge observed, "[a]ny right which the

[defendant] had to occupy the [property] was terminated by the

Bankruptcy Court [judge] when [she] ordered specific performance

of the sale of the [property] to [the purchaser] pursuant to

[the agreement]." Accordingly, the trustee established a prima

facie case for possession.

The defendant first challenges the conveyance judgment,

claiming that it was invalid because he did not breach the

agreement.3 The Housing Court judge concluded that she was bound

by the conveyance judgment pursuant to the full faith and credit

clause of the United States Constitution and the doctrine of res

judicata. The defendant claims, without citation to authority,

that that the Housing Court "misapplied" the doctrine of res

judicata and deprived him of his Fourteenth Amendment right to

due process. The argument is meritless.

3 The defendant has not included in the appellate record a
full transcript of the bankruptcy court trial proceedings
addressing the purchaser's demand for specific performance of
the agreement.

5
Res judicata is a term that includes both claim preclusion

and issue preclusion. Santos v. U.S. Bank Nat'l Ass'n, 89 Mass.

App. Ct. 687, 692 (2016). "[I]ssue preclusion 'prevents

relitigation of an issue determined in an earlier action where

the same issue arises in a later action, based on a different

claim, between the same parties or their privies.'" Petrillo v.

Zoning Bd. of Appeals of Cohasset, 65 Mass. App. Ct. 453, 457

(2006), quoting Heacock v. Heacock, 402 Mass. 21, 23 (1988).

"Before precluding the party from relitigating an issue, a
court must determine that (1) there was 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" (quotation and citation omitted).

Petrillo, supra at 457. "Additionally, the issue decided in the

prior adjudication must have been essential to the earlier

judgment [and, i]ssue preclusion can be used only to prevent

relitigation of issues actually litigated in the prior action."

(citation omitted). Id. at 458. Applying those factors here,

we conclude that the defendant was precluded from relitigating

in Housing Court the issue determined in the conveyance

judgment.

First, notwithstanding the defendant's argument that the

conveyance judgment was not final because he had appealed it, on

September 24, 2024, the First Circuit affirmed the conveyance

judgment, ruling that "[the defendant] fail[ed] to develop any

6
argument that might lead this court to conclude that the

bankruptcy court erred or abused its discretion while rendering

the challenged rulings." Lozano, U.S. Ct. App., No. 23-1611.

Second, the parties in the underlying action here are the

same for purposes of issue preclusion. The doctrine does not

require that the parties on each side be identical. See Mancuso

v. Kinchla, 60 Mass. App. Ct. 558, 565 (2004) (rejecting

argument that issue preclusion did not apply because defendant

not party to Federal action where complainant had "full and fair

opportunity to litigate all of their grievances arising out of

the same transaction at issue in both cases"). Privity exists

where the "relationship between two parties . . . is

sufficiently close so as to bind them both to an initial

determination." National Labor Relations Bd. v. Donna-Lee

Sportswear Co., 836 F.2d 31, 35 (1st Cir. 1987). In the

bankruptcy proceeding, the purchaser brought a claim against the

defendant for breach of the agreement, and the bankruptcy court

judge determined that the defendant breached the agreement and

ordered the trustee to convey the property to the purchaser. So

far as the record reveals, the defendant had a "full and fair

opportunity" to litigate the enforceability of the agreement in

the bankruptcy proceeding and is bound by the conveyance

judgment.

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Third, the issue here is identical to the issue in the

conveyance judgment: whether the defendant breached the

agreement to sell the property to the purchaser.

Fourth, the validity of the agreement was essential to its

enforcement and thus the conveyance judgment.

The Housing Court judge correctly concluded that she was

bound to recognize the conveyance judgment because the

bankruptcy court possessed personal jurisdiction over the

parties and jurisdiction over the property. The bankruptcy

court had jurisdiction over (a) the defendant because the

defendant filed the bankruptcy action, (b) the trustee because

the bankruptcy judge appointed him to administer the defendant's

bankruptcy estate, including the property, and (c) the property

because it was part of the defendant's bankruptcy estate.

Accordingly, the Housing Court judge determined, correctly, that

she was required to accord conclusive effect to the decisions of

the bankruptcy court, including the conveyance judgment.4

Addressing the defendant's due process claim more broadly,

the Housing Court judge held a trial at which the defendant had

a full opportunity to cross-examine the trustee and present his

case. Contrary to the defendant's claim on appeal that the

4 Because issue preclusion applies here, we do not address
the Housing Court judge's alternative reliance on the full faith
and credit clause of the United States Constitution.

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Housing Court judge "ignored his evidence," the judge

"provide[d] [this] self-represented party with a meaningful

opportunity to present [his] case by guiding the proceedings in

a neutral but engaged way" (citation omitted). Wilbur v.

Tunnell, 98 Mass. App. Ct. 19, 25 n.10 (2020).

As the Housing Court judge aptly noted, "the problem with

the [defendant's] position is that he -- himself -- is the one

who proposed the sale of the [property], looked for buyers,

accepted the offer of [the purchaser], negotiated [the

agreement], and asked the Bankruptcy Court to approve the sale

as set forth under the [a]greement."5

Judgment affirmed.

By the Court (Hand, Grant &
Wood, JJ.6),

Clerk

Entered: May 29, 2025.

5 The trustee's request for attorney's fees is denied.

6 The panelists are listed in order of seniority.

9