MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Carleen J. Miller and nine other taxpayers (plaintiffs) filed the present action against the city of Worcester and municipal officials (collectively, the city) seeking to block construction of new school facilities on municipal property known as Newton Hill. The planned construction would replace existing school facilities that were constructed in the 1960s. The plaintiffs argued that a 1960 act of the Legislature allowing use of the parcel for school purposes, St. 1960, c. 121, was contrary to existing law requiring that Newton Hill be used for park purposes in perpetuity. A Superior Court judge granted the citys motion to dismiss, concluding that a 1961 equity decree from the Supreme Judicial Court precludes the plaintiffs claims and that the plaintiffs lack standing. We affirm.
Background. “Considering that this is an appeal from a motion to dismiss, we summarize the pertinent facts alleged in the complaint.” Golchin v. Liberty Mut. Ins. Co., 460 Mass. 222, 225 (2011). The Newton Hill parcel was acquired by the citys parks commission in 1888.
4
The parks commission acted pursuant to authority conferred by St. 1882, c. 154, § 3, which authorizes parks commissioners to acquire lands for park purposes. Statute 1882, c. 154, § 10 provides that “[a]ll lands taken or held under this act shall be forever kept open and maintained as a public park or parks.” Nonetheless, in 1960, the Legislature enacted St. 1960, c. 121, § 1, providing that “[t]he city of Worcester is hereby authorized to use for school purposes any part or parts of certain land in said city known as Newton Hill.” Statute 1960, c. 121, § 1 conditioned the change of use on, inter alia, authorization “by decree of the supreme judicial court.”
In 1960, the city filed a bill in equity in the Supreme Judicial Court seeking the required decree (1960 equity action). The citys bill in equity referenced the change in use authorized by St. 1960, c. 121, § 1 and further acknowledged the receipt of “a gift in trust from the Estate of William A. Richardson” that imposed certain restrictions on the use of Newton Hill (Richardson gift). The city asserted “[t]hat no provision of the Richardson Trust prohibits the petitioner from erecting a school building on said Newton Hill.”
5
The Attorney General, named as the respondent, assented.
6
In 1961, the Supreme Judicial Court entered a final decree authorizing the city “to use twenty acres of park land known as Newton Hill” for school purposes (1961 equity decree).
The city proceeded to construct Doherty Memorial High School on the designated portion of Newton Hill. The school opened in 1966 and has remained in operation since. The city now seeks to replace the existing Doherty Memorial High School with a new school building and grounds on the same twenty-acre portion of Newton Hill.
The plaintiffs filed this action seeking to annul St. 1960, c. 121 and an order for the city to halt expenditures for reconstruction of Doherty Memorial High School and return the parcel to use as a park.
7
The plaintiffs brought their claims under G. L. c. 40, § 53, which “permits taxpayers to act ‘as private attorneys general’ to enforce laws designed to prevent abuse of public funds by local governments.” Caplan v. Acton, 479 Mass. 69, 74 (2018), quoting LeClair v. Norwell, 430 Mass. 328, 332 (1999). The plaintiffs challenged the citys “efforts to fund and replace the existing Doherty [Memorial] High School with a new school on park land,” arguing that the change in use authorized by St. 1960, c. 121, was contrary to law.
8
After a hearing, a judge granted the citys motion to dismiss and entered judgment for the city. In a comprehensive memorandum of decision, the judge concluded that the plaintiffs claims were barred by the preclusive effect of the 1961 equity decree and that the plaintiffs lacked standing. The plaintiffs appeal therefrom.
9
Discussion. The plaintiffs argue that St. 1960, c. 121 should be annulled, see note 7 supra, and that the 1961 equity decree authorizing the city to use “part of Newton Hill for ‘school purposes’ ․ was procured by [the citys] mistake, fraud, concealment or misrepresentation,” negating its preclusive effect under the Restatement (Second) of Judgments § 26 comment j (1982) (comment j). We conclude that the 1961 equity decree does have preclusive effect, foreclosing the plaintiffs substantive claims.
10
To survive a motion to dismiss, the plaintiffs “[f]actual allegations must be enough to raise a right to relief above the speculative level ․ [based] on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The plaintiff must plead more than “subjective characterizations or conclusory descriptions of a general scenario which could be dominated by unpleaded facts” (quotations and citation omitted). Schaer v. Brandeis Univ., 432 Mass. 474, 478 (2000). “We review the allowance of a motion to dismiss de novo.” Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011).
“Claim preclusion makes a valid, final judgment conclusive on the parties and their privies, and prevents relitigation of all matters that were or could have been adjudicated in the action” (citation omitted). Kobrin v. Board of Registration in Med., 444 Mass. 837, 843 (2005). “This is based on the idea that the party to be precluded has had the incentive and opportunity to litigate the matter fully in the first lawsuit” (quotations and citation omitted). Id. The doctrine “is founded on the necessity for finality in litigation.” Wright Mach. Corp. v. Seaman-Andwall Corp., 364 Mass. 683, 688 (1974). “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’ ” (citation omitted). Kobrin, supra at 843.
All three claim preclusion elements are present here. A nonparty to a prior adjudication is in privity with a party in that prior adjudication when the nonpartys “interest was represented by a party to the prior litigation.” Massachusetts Prop. Ins. Underwriting Assn v. Norrington, 395 Mass. 751, 754 (1985). “In cases brought under G. L. c. 40, § 53, the taxpayer plaintiffs act as private attorneys general, enforcing laws designed to protect the public interest.” Edwards v. Boston, 408 Mass. 643, 646 (1990). “[T]he Attorney General has a general statutory mandate ․ to protect the public interest ․ [as well as] a common law duty to represent the public interest and enforce public rights.” Commonwealth v. Mass. CRINC, 392 Mass. 79, 88 (1984). The Attorney General in the 1960 equity action represented, and had a duty to assert, the same public interests that the plaintiffs assert in the present action.
11
In other words, there is privity between the Attorney General in the 1960 equity action and the plaintiffs in their capacity as representatives of the public interest in the present action.
12
See DeGiacomo v. Quincy, 476 Mass. 38, 48-49 (2016).
There is identity of the cause of action where both the 1960 equity action and the present action address the validity of the change in use of the Newton Hill parcel. More specifically, both actions seek to ascertain the effect of St. 1960, c. 121, on the permitted uses of the Newton Hill parcel. See TLT Constr. Corp. v. A. Anthony Tappe & Assocs., 48 Mass. App. Ct. 1, 8 (1999) (“A claim is the same for [claim preclusion] purposes if it is derived from the same transaction or series of connected transactions” [citation omitted]).
13
Finally, the equity judgment is considered a final judgment with preclusive effect. See DeGiacomo, 476 Mass. at 49 (“[D]enial of issue preclusion would defeat the purpose of the equitable action itself”). Thus, the traditional elements of claim preclusion are satisfied.
The heart of the plaintiffs argument, though, is that the 1961 equity decree falls within a limited exception to claim preclusion for mistake, fraud, concealment, or misrepresentation. See comment j. The plaintiffs assert that because the citys 1960 bill in equity failed to reference St. 1882, c. 154, § 10, and asserted that the change in use did not conflict with the conditions of the Richardson gift, the 1961 equity decree falls within comment js limited exception to claim preclusion. The plaintiffs contend that their allegations at least raise a plausible claim that the exception applies -- such that it was error for the judge to enter judgment for the city at the motion to dismiss stage. This argument is unavailing.
“The Restatement (Second) of Judgments § 26 (1982) recognizes several limited exceptions to claim preclusion, one of which is the failure of a party to pursue a claim as a result of the other partys fraud, misrepresentation or concealment of material information.” Id. One such exception is found in comment j, which reasons that “[a] defendant cannot justly object to being sued on a part or phase of a claim that the plaintiff failed to include in an earlier action because of the defendants own fraud.” Restatement (Second) of Judgments § 26 comment j. The exception can also apply to “innocent misrepresentation[s]” by the defendant if they “prevented the plaintiff from including the entire claim in the original action,” but not “where the failure of the plaintiff to include the entire claim in the original action was due to a mistake, not caused by the defendants fraud or innocent misrepresentation.” Id.
Here, the omission of St. 1882, c. 154, from the citys bill in equity was not a mistake, fraud, concealment, or misrepresentation that implicates the limited exception to claim preclusion. Any suggestion that the citys omission was a deliberate attempt to deceive the Attorney General, or the court, is purely speculative. See Schaer, 432 Mass. at 478. Even assuming arguendo that the mere omission of the statute could be considered an “innocent misrepresentation,” it cannot be said that the omission prevented the Attorney General from considering the statute in the original action. Statute 1882, c. 154, is a publicly enacted law, accessible to the court and the Attorney General. The mere omission of St. 1882, c. 154 from the citys bill in equity, without more, does not trigger comment js limited exception. See Gloucester Marine Rys. Corp. v. Charles Parisi, Inc., 36 Mass. App. Ct. 386, 391-392 (1994) (“There is nothing in the record that demonstrates that [the plaintiffs were] prevented by [the defendants] or anyone else from acquiring ․ knowledge [of the potential claims] through discovery in the [prior] action”). See also Konover Mgt. Corp. v. Planning Bd. of Auburn, 32 Mass. App. Ct. 319, 326 (1992) (“strong presumption that a public official will perform honestly and impartially and will properly discharge the duties of her office in the public interest”).
The plaintiffs fare no better regarding the citys characterization of the Richardson gift. The citys bill in equity disclosed the Richardson gift and asserted “[t]hat no provision of the Richardson Trust prohibits the petitioner from erecting a school building on said Newton Hill.” To the extent this can be construed as a misrepresentation,
14
such misrepresentation did not prevent the Attorney General or the court from reviewing the attached Richardson will, see note 4 supra, and concluding otherwise. Finally, to the extent Massachusetts courts have adopted comment j, they have done so to deny “a defendant the benefit of claim preclusion when that defendant took steps calculated to assure the exclusion of the claim from the prior litigation.” Roche v. Roche, 22 Mass. App. Ct. 306, 311 (1986). See Tinkham v. Jenny Craig, Inc., 45 Mass. App. Ct. 567, 574 (1998). Nothing in the record raises the prospect of such calculated deceptive conduct. Consequently, we do not depart from the traditional principles of claim preclusion in this case. Thus, the 1961 equity decree precludes the plaintiffs from turning the clock back over sixty years to challenge the citys conversion of the twenty-acre portion of Newton Hill from park to school purposes.
15
,
16
Judgment affirmed.
FOOTNOTES
4
. The acquisition of the Newton Hill parcel was carried out by way of three deeds and two orders of taking.
5
. The citys bill in equity represented that both St. 1960, c. 121 and a copy of the “Richardson will” were attached thereto.
6
. The Attorney Generals answer admitted all of the allegations in the citys bill of equity, acknowledged that the land was presently “held ․ for park purposes,” and requested that the court “enter a decree authorizing the City of Worcester to use for school purposes any part or parts of” the Newton Hill parcel.
7
. Specifically, the plaintiffs sought declaratory and injunctive relief to “annul[ ] the 1960 conversion of the [twenty]-acre section of [Newton Hill] currently converted to school use,” order the city to, after a period of time, “demolish, remove, and generally grade the areas now occupied by the school” in order to restore the area to its “pre-Doherty Memorial High School conditions,” and thereafter use the area “only for public open space and recreational purposes.”
8
. The plaintiffs contend that St. 1960, c. 121, was beyond the power of the Legislature and should be annulled because: (1) St. 1882, c. 154, § 10, provides that “[a]ll lands taken or held under this act shall be forever kept open and maintained as a public park or parks,” creating a public trust that prohibited transfer of the land to use for school purposes; (2) the terms of the Richardson gift created a charitable trust prohibiting construction of the school building; and (3) the transfer did not comport with the requirements of G. L. c. 40, § 15A.
9
. Following initiation of the appeal, the plaintiffs motion to substitute parties was granted, replacing five of the original plaintiffs with three of the current plaintiffs.
10
. In addition to asserting their standing as taxpayers under G. L. c. 40, § 53, the plaintiffs also argue that they have standing individually under the public rights doctrine, which can confer standing on individual citizens “when the question is one of public right and the purpose is to procure the performance of a public duty, and no other remedy is open” (citation omitted). Lutheran Serv. Assn of New England, Inc. v. Metropolitan Dist. Commn, 397 Mass. 341, 344 (1986).
11
. Indeed, the plaintiffs acknowledged as much at oral argument, stating “we accept that the Attorney General was the representative of the taxpayers of the city of Worcester.”
12
. This is equally true if the plaintiffs have standing under the public rights doctrine instead of G. L. c. 40, § 53. As the name suggests, the public rights doctrine provides standing to litigate “public right[s]” and “procure the performance of ․ public dut[ies].” See Lutheran Serv. Assn of New England, Inc., 397 Mass. at 344.
13
. The plaintiffs also argue that the 1961 equity decree should not have preclusive effect because the “equity action was essentially a friendly suit brought to obtain a consent judgment.” This argument is unavailing. See DeGiacomo, 476 Mass. at 49.
14
. The plaintiffs assert that the statement is at odds with codicils to the Richardson will which provide that “no more carriage-ways or road-ways be constructed on Newton Hill” and that “no [t]ower of wood, [i]ron, or stone, or building or structure of any kind, be constructed on the summit of Newton Hill.”
15
. Because the 1961 equity decree forecloses the plaintiffs from challenging the change in use authorized by St. 1960, c. 121, we decline to address the merits of the plaintiffs challenges to that statute. For the same reason, we need not and do not reach the question of standing.
16
. The citys request for costs and attorneys fees is denied.