TJR SERVICES, LLC v. WILLIAM L. HUTCHINSON & Another.

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.

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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

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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

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(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

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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

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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.

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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,

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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).

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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.

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