Fulvio Joseph Gentili v. Town of Sturbridge.

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-1414

FULVIO JOSEPH GENTILI

vs.

TOWN OF STURBRIDGE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Fulvio Joseph Gentili, appeals from a

Superior Court judgment dismissing his complaint against the

defendant, the town of Sturbridge (town), for "special and

peculiar injury," G. L. c. 79, § 12, arising out of the

defendant's discharge of stormwater onto his land. Agreeing

with the Superior Court judge that the plaintiff's claim is

barred by the doctrine of claim preclusion, we affirm.

1. Background. 209 Charlton Road (property) is a

commercially zoned property in Sturbridge with frontage on Hall

Road. In 1977, the property was conveyed to Renato Gentili,

upon whose death it passed to the Renato Gentili Trust (trust).

The plaintiff became a trustee of the trust in 1983. The
property remained in the trust until 2023, when the plaintiff

conveyed it to himself to enable him to bring the instant action

pro se.

In 1987, the town replaced an existing culvert built in the

1930s with a new culvert beneath Hall Road, which reached onto

the property and which allowed stormwater to drain under the

road and onto the property. The water discharged by the culvert

formed wetlands on the property. These features of the new

culvert "have been open, notorious and continuous" since then.

From 2009 to 2015, the trust made three attempts to sell the

property, all of which failed because of the presence of the

wetlands. Finally, in 2015, the plaintiff and his then

cotrustee filed an action in the Land Court seeking to enjoin

the town from draining water through the culvert "so as to

create wetlands." The town counterclaimed that it had acquired

a prescriptive easement to drain water onto the property. The

Land Court agreed with the town and entered judgment for it in

January 2018. The trust did not appeal.

In May 2018, the plaintiff and his then cotrustee filed an

action in the Superior Court seeking "just or reasonable

compensation from the [defendant] under M.G.L. c. 79, §§ 7, 10,

12, 14 as a constitutional right under article 10 of the

Massachusetts Declaration of Rights and the 5th Amendment to the

U.S. Constitution" for the defendant's alleged taking of the

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property by acquiring the prescriptive drainage easement. The

trustees also sought "special and peculiar damages" for, among

other things, the property's resulting loss of salability. The

court denied relief, finding that the defendant's acquisition of

the easement by prescription did not constitute a taking. The

trustees appealed, and the Supreme Judicial Court affirmed.

Gentili v. Sturbridge, 484 Mass. 1010, 1012 (2020).

In June 2020, the plaintiff filed an action in the United

States District Court for the District of Massachusetts seeking

compensation from the defendant under 42 U.S.C. § 1983 and the

Fifth Amendment to the U.S. Constitution for its alleged taking

of the property without compensation. The District Court

entered summary judgment for the town, finding that the

plaintiff's claim was barred by res judicata.

In October 2022, the plaintiff filed the instant action in

the Superior Court, seeking damages from the town for the

property's loss of salability as a "special and peculiar injury"

under G. L. c. 79, § 12. The town moved to dismiss the

plaintiff's complaint, and the Superior Court allowed the

motion, finding that the plaintiff's claim was barred by claim

preclusion. This appeal followed.

2. Claim preclusion. "The term 'res judicata' includes

both claim preclusion and issue preclusion." Santos v. U.S.

Bank Nat'l Ass'n, 89 Mass. App. Ct. 687, 692 (2016), quoting

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Kobrin v. Board of Registration in Med., 444 Mass. 837, 843

(2005). "[C]laim preclusion makes a valid, final judgment

conclusive on the parties and their privies, and bars further

litigation of all matters that were or should have been

adjudicated in the action." Duross v. Scudder Bay Capital, LLC,

96 Mass. App. Ct. 833, 836 (2020), quoting Heacock v. Heacock,

402 Mass. 21, 23 (1988). 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." LaRace v. Wells

Fargo Bank, N.A., 99 Mass. App. Ct. 316, 324 (2021), quoting

Santos, supra. "[A] judgment in an action that determines

interests in real . . . property . . . has preclusive effect

upon a person who succeeds to the interest of a party to the

same extent as upon the party himself." McCarthy v. Oak Bluffs,

419 Mass. 227, 233 (1994), quoting Restatement (Second) of

Judgments § 43(1)(b) (1982). "Causes of action are the same for

the purposes of res judicata when they 'grow[ ] out of the same

transaction, act, or agreement, and seek[ ] redress for the same

wrong.'" LaRace, supra at 325, quoting Fassas v. First Bank &

Trust Co. of Chelmsford, 353 Mass. 628, 629 (1968). "We review

the allowance of a motion to dismiss de novo, accepting as true

all well-pleaded facts alleged in the complaint." Osborne-

Trussell v. Children's Hosp. Corp., 488 Mass. 248, 253 (2021),

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quoting Ryan v. Mary Ann Morse Healthcare Corp., 483 Mass. 612,

614 (2019).

Here, the 2018 Superior Court action and the 2020 District

Court action both involved as parties the trust, of which the

plaintiff is a successor in interest, and the town. Claims in

both actions grew out of the town's use of the prescriptive

drainage easement on the property and sought redress for the

property's resulting decrease in value. Although the plaintiff

did not raise the precise claim at issue in this case in any

previous action, it suffices for claim preclusion that he could

have. See Bernier v. Bernier, 449 Mass. 774, 797 (2007)

("Before a claim will be barred on the ground of claim

preclusion, it must be established that the claim was actually

and necessarily decided in a prior action or that there was a

full and fair opportunity to have done so that was not taken"

[emphasis added]). Moreover, all of the plaintiff's claims

relating to the town's use of the easement were resolved by

final judgments on the merits. As a result, the plaintiff's

claim in the instant action is barred by claim preclusion. See

McCarthy, 419 Mass. at 233; LaRace, 99 Mass. App. Ct. at 324-

325.

The plaintiff argues that he was unable to bring the

instant claim in any previous action because, to recover for

"special and peculiar injury" under G. L. c. 79, § 12, he would

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have had to plead that no taking of the property had occurred.

He contends that, because he also sought damages under a taking

theory in his previous actions, to simultaneously plead no

taking for purposes of the § 12 claim would have been unethical.

That is not the case.

"Modern rules of pleading permit alternative pleading."

Matter of Hilson, 448 Mass. 603, 613 (2007). The Massachusetts

Rules of Civil Procedure provide that "[a] party may set forth

two or more statements of a claim or defense alternatively or

hypothetically . . . [and] may also state as many separate

claims or defenses as he has regardless of consistency." Mass.

R. Civ. P. 8 (e) (2), 365 Mass. 749 (1974). Litigants in the

courts of this Commonwealth make frequent use of alternative

pleading. See, e.g., Zelby Holdings, Inc. v. VideogeniX, Inc.,

92 Mass. App. Ct. 86, 92-93 (2017) (plaintiff could plead both

contract and unjust enrichment claims even though two were

mutually exclusive); DiCarlo v. Lattuca, 60 Mass. App. Ct. 344,

348 (2004) (defendant could plead that statute of limitations

bars claim or, in alternative, assert counterclaim subject to

same statute of limitations). Nor is alternative pleading any

less common in the Federal courts. See, e.g., Limone v. United

States, 579 F.3d 79, 93 (1st Cir. 2009) (plaintiffs could plead

both intentional infliction of emotional distress and malicious

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prosecution on same facts and were entitled to "independent

review of each set of claims").1

Accordingly, there was nothing to prevent the plaintiff

from pleading in his 2018 Superior Court action that the town

had taken the property without just compensation or, in the

alternative, that there was no taking but that the defendant's

use of the property had resulted in "special and peculiar

injury." The plaintiff's failure to do so cannot save his

instant claim from preclusion. See Bernier, 449 Mass. at 797.2

1 By contrast, at common law, "[a] count or plea containing
material allegations which were inconsistent or contradictory
was defective [footnote omitted]." McDonald, Alternative
Pleading: I, 48 Mich. L. Rev. 311, 316 (1950). But the
traditional bar on alternative pleading found its justification
in efficiency, not ethics: it existed because the "chief
object" of pleading at common law was "that the parties be
brought to issue, and that the issue be material, single and
certain in its quality [footnotes omitted]." Id. at 314-315,
quoting Stephen, Pleading 135 (5th ed. 1845). "[T]he rules
required 'certainty,' which meant 'precision,' not 'truth.'"
McDonald, supra at 316 n.14. Cf. id., quoting 4 Bentham,
Rationale of Judicial Evidence 278 (1827) ("Of the information
required to be given . . . in pleading[s] . . . it is in so many
instances allowed to be false, that, upon the whole, it is of at
least as little use as if it were always so"). Indeed, when one
English plaintiff pleaded the same child support claim under two
alternative theories, rendering his complaint defective, the
court suggested an expedient but scarcely honest cure: "[T]he
way had been to aver them to be different children . . . for
here you ought to multiply [the child] as often as you multiply
your declaration." McDonald, supra at 320, quoting Hart v.
Longfield, 87 Eng. Rep. 1156 (Q.B. 1702); 7 Mod. 148, 149.

2 We need not discuss at length the plaintiff's
arguments -- not raised below -- based on the Restatement
(Second) of Judgments § 26(1)(d) and (f). The requirement that
the plaintiff raise all his theories for compensation in one

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3. Appellate attorney's fees. "We may award appellate

attorney's fees when we determine that an appeal is frivolous."

Marion v. Massachusetts Hous. Fin. Agency, 68 Mass. App. Ct.

208, 212 (2007). "An appeal is frivolous, so as to risk

potential imposition of a sanction, where there can be no

reasonable expectation of a reversal under well-settled law."

Abuzahra v. Cambridge, 486 Mass. 818, 829 (2021), quoting

Marabello v. Boston Bark Corp., 463 Mass. 394, 400 (2012).

Although the plaintiff is pro se, he has long experience as an

attorney and an Assistant Attorney General in Florida. This is

the second, not the first, action in which his claim for

compensation has been held barred by res judicata. He should no

longer be allowed to impose on the town the costs of his

lawsuit is plainly consistent with the fair and equitable
implementation of the takings compensation scheme, and the
plaintiff has not "clearly and convincingly" shown an
"extraordinary reason" for overcoming preclusion. To the
contrary, the current state of affairs was caused by his
inattention to the open and notorious condition of the property
for multiple decades and his subsequent failure to anticipate
that he might not prevail on his novel legal theory in the 2018
lawsuit.

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frivolous litigation campaign. We award the town attorney's

fees and double costs.3

Judgment affirmed.

By the Court (Sacks,
Ditkoff & Toone, JJ.4),

Clerk

Entered: September 19, 2024.

3 In accordance with the procedure specified in Fabre v.
Walton, 441 Mass. 9, 10-11 (2004), the town may, within fourteen
days of the issuance of this memorandum and order, submit an
application for attorney's fees with appropriate supporting
materials. The plaintiff shall have fourteen days thereafter to
file a response to that application. See Fariello v. Zhao, 101
Mass. App. Ct. 566, 573 n.5 (2022).

4 The panelists are listed in order of seniority.

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