WOODLANDS VIEW LLC v. MARK B. FERREE & Others.

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-187

WOODLANDS VIEW LLC

vs.

MARK B. FERREE & others.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A judge of the Land Court dismissed a complaint filed by

Woodlands View LLC (Woodlands) against the defendants, based on

the pendency of a prior action, under Mass. R. Civ. P.

1Sandra S. Ferree; Lawrence Whalen; Ann Whalen; Nicholas
Kurkjy; Leah M. Lemont; Sherry L. Steele; Diane M. Melanson;
Richard L. Garcia; Mary C. Garcia; Cheryl A. Flynn; Dana E.
Wilson; Francis X. Holt; Deborah Anne Holt; Serge Rekun; Olga
Russakovskaya; Linda M. Halloran; Eric V. Conradt, as trustee of
the Shirley M. Conradt 2005 Revocable Trust; Shirley M. Conradt,
as trustee of the Shirley M. Conradt 2005 Revocable Trust; Todd
Stiff; Karen Stiff; Michael Bannon; Christopher S. Chiappetta;
Richard E. Matano; Sheila A. Matano; Karen Frank, as trustee of
the Joseph H. Frank Trust and as trustee of the Karen L. Frank
Trust; Joseph Frank, as trustee of the Joseph H. Frank Trust and
as trustee of the Karen L. Frank Trust; Jacob B. Evans; Sarah
Cooper; Angela E. Jones; Nicole A. John; Michael McGuinness;
Michael S. Lupo; David M. Ferrante; Patricia M. Ferrante; Kurt
J. Steenbruggen; Matthew Kobel; Elizabeth Barker; Julia Y.
Cotter; and The Woodlands Homeowners' Association, Inc.
12 (b) (9), as amended, 450 Mass. 1403 (2008) (rule 12 [b] [9]).

Concluding that the judgment was properly dismissed, but that it

should not have been dismissed with prejudice, we vacate the

dismissal and direct the entry of a new judgment dismissing the

complaint without prejudice.

We review the grant of a motion to dismiss de novo. See

Okoli v. Okoli, 81 Mass. App. Ct. 381, 384 (2012). Rule

12 (b) (9) permits a defendant to move for dismissal because of

the "[p]endency of a prior action in a court of the

Commonwealth." "Dismissal under this rule is proper when the

same parties are involved in two actions, one begun before the

other, and [i]t is apparent from the face of the present

complaint . . . that all the operative facts relied on to

support the present action had transpired prior to the

commencement of the first action." (quotation and citation

omitted). Gold Star Homes, LLC v. Darbouze, 89 Mass. App. Ct.

374, 377 (2016). "The rule prohibits the long-barred practice

of claim-splitting." M.J. Flaherty Co. v. United States Fid. &

Guar. Co., 61 Mass. App. Ct. 337, 339 (2004).

On June 4, 2024, five condominium trusts (Superior Court

plaintiffs) filed a complaint against Woodlands in the Superior

Court. On June 12, 2024, Woodlands filed a complaint in the

Land Court against more than thirty individually-named

condominium unit owners and trustees, and against the Woodlands

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Homeowners Association, Inc.,2 seeking relief regarding

substantially the same issues as raised in the Superior Court

action.3 On June 21, 2024, the Superior Court plaintiffs amended

their complaint, to join as plaintiffs five individually-named

unit owners who were named in the Land Court case, pursuant to

Mass. R. Civ. P. 15, 365 Mass. 76 (1974) (rule 15), which allows

for "[a] party [to] amend his pleading once as a matter of

course at any time before a responsive pleading is served

. . . ." The unit owners, as defendants in the Land Court

action, then filed a motion to dismiss pursuant to rule

12 (b) (9) in the Land Court, arguing that because the parties

and the subject matter in the two actions were the same, the

Superior Court action was a "prior pending action" requiring

dismissal of the later Land Court action. The Land Court judge

allowed the motion to dismiss and entered a judgment of

dismissal with prejudice, and this appeal ensued.

Woodlands argues that the dismissal pursuant to rule

12 (b) (9) was improper because the Superior Court action, at

the time that Woodlands filed the Land Court action, did not

2 Woodlands also named "John and Jane Doe" as parties in
interest to the complaint, representing the remaining unnamed
condominium unit owners. Woodlands later amended the complaint
to list over 300 such parties in interest.

3 Woodlands concedes that the substance of the claims
presented in the Superior Court action and the Land Court action
are sufficiently similar for purposes of rule 12 (b) (9).

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constitute a prior pending action with the "same parties."

Without supporting authority, Woodlands contends that the

joinder of additional plaintiffs pursuant to rule 15 did not

relate back to the date of the initial Superior Court complaint

filing for the purposes of a dismissal under rule 12 (b) (9).

Woodlands argues that rule 15's purpose is limited to plaintiffs

seeking to "assert claims against additional defendants

subsequent to the statute of limitations running." We are not

persuaded. Subsection (c) of rule 15 states that "Whenever the

claim or defense asserted in the amended pleading arose out of

the conduct, transaction, or occurrence set forth or attempted

to be set forth in the original pleading, the amendment

(including an amendment changing a party) relates back to the

original pleading" (emphasis added). We see no reason to limit

this permissive subsection to changes in party defendants as

argued by Woodlands. Indeed, amendment practice is liberally

construed. See G. L. c. 231, § 51. See also Ideal Financing

Ass'n, Inc. v. McPhail, 320 Mass. 521, 523 (1946).

While Woodlands contends that the Land Court action was

wrongly dismissed, it agrees that the two actions cannot proceed

simultaneously. Because the issues and many parties between the

two actions are identical, a judgment in the Land Court, as

noted by the judge, "would concern the same questions of law and

fact which lie at the center of the earlier filed Superior Court

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[c]ase," and would "risk . . . competing and potentially

inconsistent adjudications in the two courts." Prevention of

this type of claim splitting is the purpose of rule 12 (b) (9).

See M.J. Flaherty Co., 61 Mass. App. Ct. at 339. Thus, we

conclude that the dismissal of the Land Court action was proper.

While the judge properly dismissed the complaint under rule

12 (b) (9), we agree with Woodlands that it should have been

dismissed without prejudice to ensure that Woodlands is able to

fully advance its claims in the Superior Court. At oral

argument, the appellees stated that they did not object to the

entry of a judgment of dismissal of the Land Court action

without prejudice. We vacate the judgment, and a new judgment

shall enter dismissing the complaint without prejudice.

So ordered.

By the Court (Shin, Walsh &
Allen, JJ.4),

Clerk

Entered: April 2, 2026.

4 The panelists are listed in order of seniority.

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