Franz Marx v. Patricia Brooks.

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

25-P-334

FRANZ MARX

vs.

PATRICIA BROOKS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

We have seen this case, which we hope is nearing the end of

litigation, before. See Marx v. Brooks, 105 Mass. App. Ct. 1127

(2025) (Marx I). In very brief, this action involves events

that occurred after dissolution of an approximately thirteen-

year committed relationship between the parties during which

they lived together. The Superior Court complaint in this

matter was filed on May 10, 2018. The only count of relevance

here was that for conversion.

As a different panel of this court described in the

previous decision, in 2019, the trial court issued a preliminary

injunction that enjoined Brooks from "removing, selling or

transferring the personalty of the plaintiff" from the home the
parties previously shared and where Brooks continued to live.

This order applied, among other things, to "a covered trailer, a

Toyota, several car parts, and the shell of a Corvette." Marx

I. In 2021, Brooks, in concert with her husband, "sold the

trailer and the Toyota." Id. In a contempt action, this was

found to amount to contempt of court.

In addition, at Brooks's instruction, her husband "'moved

many of the disputed car parts from a covered and protected

environment, either in the covered trailer or in the garage, to

the outdoor elements' and that the Corvette was moved from the

garage to the yard." Marx I. The judge concluded that moving

these disputed properties to an area where the elements would

cause damage was also a violation of the preliminary injunction

and in contempt of court.

Appealing from the contempt judgment, Brooks argued that

the term "removing" in the order was vague, and "she was not on

notice that 'moving' the items outside would result in

contempt." Marx I. A different panel of this court ultimately

concluded that the judge was correct, and these actions, too,

"clearly violated the preliminary injunction." Id.

This appeal is from the judgment after a jury verdict

against Brooks on the conversion claim. Brooks argues first

that the judge erred in giving a jury instruction which stated:

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"In June of 2019, this Court issued an order to both the
plaintiff and the defendant that all of the personal
property that was involved or in dispute in this case
remained where it was at the . . . property, that the
status quo as to the location of that property be
maintained during the pendency of this lawsuit, which is
ongoing to this date."

She argues that the instruction was prejudicial because the term

"status quo" was a mischaracterization of the order, in that the

language of the order with respect to "removing" the property

did not encompass her moving it from one location to another on

her property.

In her brief, which was filed after the rescript issued for

Marx I, Brooks does not mention the prior decision on this

precise issue. Marx points out in his response that the prior

decision is res judicata to the question presented here.

Brooks's reply brief does not even mention or respond to this

argument but instead raises a new argument, that the jury

instruction should not have referenced the injunction at all.

Since that argument was not present in the initial brief, we do

not consider it here.

Brooks's argument is meritless because, indeed, the prior

decision is res judicata. At argument, Brooks's counsel

maintained that the decision had no res judicata effect until

July 28, 2025, when further appellate review was denied,

subsequent to the filing of the opening brief. Decisions of the

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courts of our Commonwealth, however, have res judicata effect

regardless of whether they are on appeal. Commonwealth v.

Hernandez, 481 Mass. 582, 595 (2019) ("In Massachusetts, as

elsewhere, a trial court judgment is final for purposes of res

judicata or issue preclusion regardless of the fact that it is

on appeal").1

Brooks's second argument relates to the verdict slip. On

the conversion count, it stated, "Did the defendant convert the

plaintiff's personal property?" Brooks requested that the word

"intentionally" be inserted between "defendant" and "convert" on

the verdict slip; the trial judge concluded that the wording of

the verdict slip was discretionary and denied her request.

Brooks alleges that the judge's failure to include this word was

reversible error.

We find this argument meritless as well. The jury were

clearly instructed that intent was an element of conversion.

Therefore, asking the jury whether the defendant converted the

plaintiff's personal property included a precisely correct

statement of the law on the question before the jury. Failure

to duplicate the word "intentionally" on the jury verdict slip

was clearly not error.

1 Brooks also argues that the judge incorrectly said that
the order was against both her and her husband. As this cannot
have harmed her, this argument, too, is meritless.

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Marx argues that Brooks's appeal is frivolous and that he

should be awarded fees and costs. See Mass. R. A. P. 25, as

appearing in 481 Mass. 1654 (2019). We agree, and Marx shall

file with the court his submission detailing and supporting the

attorney's fees and costs sought within fourteen days of this

decision. See Fabre v. Walton, 441 Mass. 9, 10 (2004). Brooks

may respond within fourteen days of the date of said filing.

See id.

Judgment affirmed.

By the Court (Rubin, Grant &
Hodgens, JJ.2),

Clerk

Entered: May 14, 2026.

2 The panelists are listed in order of seniority.

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