MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Howard Smith, appeals from a judgment dismissing his complaint against the defendants, Accurate Collision, Inc. (Accurate Collision), and Adam Haddad. Smith argues error in the trial judges conclusion that his complaint, which was filed in the Superior Court, involved the same claims as were asserted in a prior District Court action. We affirm.
1. Background. In June 2016, Smith filed a complaint in the District Court alleging that Accurate Collision and Haddad had engaged in wrongdoing in connection with repairing Smiths Maserati. In particular, Smith alleged that (1) the Maserati was involved in a “fender-bender,” (2) he took the Maserati to Accurate Collision to be repaired, (3) Haddad, who owned Accurate Collision, estimated that it would cost $4,000 to repair the Maserati, (4) when Smith next “saw his Maserati, it had been further damaged by [the] defendants,” and (5) after the defendants purported to repair the Maserati, they showed Smith three different bills for the work, one for $16,000, one for $22,000, and one for $33,000. Smith also alleged that his insurer, Commerce Insurance Co. (Commerce), was investigating the defendants for insurance fraud and that Smith had “reason to believe that [the] defendants ․ further damaged the vehicle in order to increase the cost of repairing the vehicle.”
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The District Court complaint included a claim for negligence that was based, in part, on “the additional damage to the Maserati ․ caused by the alleged unlawful actions and practices of [the] defendants.”
Smith then filed an amended complaint asserting claims against Commerce. The amended complaint, itself, did not include any claims against Accurate Collision or Haddad but purported to “incorporate[ ] and merge[ ]” the original complaint. Meanwhile, Accurate Collision and Haddad filed counterclaims against Smith, including for enforcement of a garage keepers lien, see G. L. c. 255, § 26, and retained possession of the Maserati during the District Court action.
All parties moved for summary judgment, and a judge of the District Court ruled that the amended complaint no longer included claims against Accurate Collision or Haddad
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and that Commerce was entitled to judgment as a matter of law. As to Accurate Collisions and Haddads counterclaims, the District Court judge ruled that there were genuine issues of material fact. The same judge presided over a bench trial on the counterclaims. In January 2018, the District Court judge found in favor of Smith, noting that Accurate Collisions and Haddads conduct toward Smith had been “unconscionable.”
In October 2018, while Smith was attempting to appeal from the District Court judgment, he also filed a complaint in Superior Court. Smith again alleged that Accurate Collision and Haddad had engaged in wrongdoing in connection with repairing the Maserati. As relevant here, Smith alleged that Accurate Collision and Haddad abandoned the Maserati on a public street after the District Court judgment entered, at which point Smith learned that the Maserati was “worthless” due to the additional damage it sustained while in the care of Accurate Collision and Haddad. Accurate Collision and Haddad moved to dismiss, arguing that Smith could not split his claims. A judge of the Superior Court allowed the motion to dismiss, and Smith now appeals from the Superior Court judgment.
2. Discussion. Rule 12 (b) (9) of the Massachusetts Rules of Civil Procedure, as amended, 450 Mass. 1403 (2008), sets forth a defense for the “[p]endency of a prior action in a court of the Commonwealth.” This rule “prohibits the long-barred practice of claim-splitting” and “provides for the dismissal of a second action in which the parties and the issues are the same as those in a prior action still pending in a court of this Commonwealth.” M.J. Flaherty Co. v. United States Fid. & Guar. Co., 61 Mass. App. Ct. 337, 339 (2004).
Where the relevant parties were the same and an appeal of the District Court action was pending,
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Smiths sole argument is that the issues in the District Court action were different than the issues in the Superior Court action. Smith argues that the District Court action pertained to the fender-bender damage, while the Superior Court action pertained to the additional damage caused by Accurate Collision and Haddad. According to Smith, he did not learn of the additional damage until after the District Court judgment entered and the Maserati was returned to him.
We are not persuaded by Smiths argument because the allegations in the District Court complaint make clear that Smith saw the Maserati at Accurate Collision before filing the District Court complaint and that, at that time, the Maserati had already been “further damaged.” Moreover, the District Court complaint included a claim for negligence that was based, in part, on “[t]he additional damage to the Maserati ․ caused by the alleged unlawful actions and practices” of Accurate Collision and Haddad. In other words, it is apparent that “the operative facts relied on to support the [Superior Court] action had transpired prior to the commencement of the [District Court] action” and that the additional damage was already an issue in the District Court action.
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Zora Enters., Inc. v. Burnett, 61 Mass. App. Ct. 341, 346 (2004), cert. denied, 543 U.S. 1150 (2005), quoting Keen v. Western New England College, 23 Mass. App. Ct. 84, 85 (1986). In these circumstances, there was no error in dismissing Smiths complaint. Contrast Koshy v. Sachdev, 477 Mass. 759, 774 (2017) (dismissal was improper where complaint was based on facts that occurred after trial in prior action).
Nor are we persuaded by Smiths argument that because Accurate Collision and Haddad retained possession of the Maserati during the District Court action, Smith did not have an opportunity to assess the additional damage until the District Court judgment entered and the Maserati was returned to him. This argument amounts to a discovery dispute that should have been resolved during the District Court action, such as by a motion for a court order to inspect the Maserati, for discovery sanctions, or for some other relief. See, e.g., Mass. R. Civ. P. 37, as amended, 423 Mass. 1406 (1996) (discovering party may move for court order compelling inspection; court in which action is pending may sanction party who fails to obey such order). Where these options were available to Smith in the District Court action,
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there is no basis for us to conclude that Smith should be permitted to relitigate in the Superior Court whether Accurate Collision and Haddad further damaged the Maserati.
Judgment affirmed.
FOOTNOTES
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. According to news articles in the addendum to Smiths appellate brief, Haddad was later indicted in connection with a scheme whereby he further damaged vehicles to inflate appraisal repair quotes. Accurate Collision and Haddad have submitted a motion requesting that we strike the news articles from the addendum, as the articles were not part of the record below. We do not consider the articles in deciding this appeal but note that, even if we were to consider them, our decision would remain unchanged.
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. The District Court judge implicitly rejected the idea that an original complaint could be incorporated by reference in an amended complaint. Smith disagreed with the decision but did not seek leave to file another amended complaint.
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. See, e.g., Keen v. Western New England College, 23 Mass. App. Ct. 84, 85 n.2 (1986) (parties agreed that first action was still pending within meaning of rule where appeal from judgment in that action was still viable when second action was commenced).
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. We note that the Superior Court complaint does include some allegations regarding conduct that occurred after the District Court action commenced, such as that Accurate Collision and Haddad delayed resolution of the District Court action by making an illusory settlement offer and that they continued to retain possession of the Maserati after the District Court judgment entered. But Smith has not made any arguments regarding those allegations and instead has clarified that he “does not now seek restitution related to the hostage-taking of the Maserati ․ [but] seeks damages to the Maserati relating to the ․ additional damage[ ].”
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. Smith asserts in his reply brief that he attempted to inspect the Maserati but that while he was at Accurate Collision waiting to conduct that inspection, a garage door fell on him and he had to be transported away by ambulance. Accepting these allegations as true, Smith could have rescheduled the inspection after recovering from the accident.