Paul DARCY dba P.A. Darcy Co.
Kimberly KHOURY, M.D.
Date: February 1, 2018
DECISION AND ORDER REGARDING DEFENDANTâS MOTION FOR
SUMMARY JUDGMENT (DOCKET NO. 18.0), AND PLAINTIFFâS CROSS
MOTION FOR SUMMARY JUDGMENT (DOCKET NO. 18.5)
A. Davis, J.
Paul Darcy, d/b/a P.A. Darcy Co. (" Plaintiff" or
" Mr. Darcy"), commenced this action in August 2016
in an effort to collect more than $46, 000.00 allegedly owed
to him by defendant Kimberly Khoury, M.D. ("
Defendant" or " Dr. Khoury") for certain
exterior landscaping and construction work that Plaintiff
purportedly performed at Defendantâs home in Wellesley,
Massachusetts, in or about 2015 (the " Project").
the second lawsuit between the parties arising out of the
Project. Dr. Khoury previously filed a small claims action
against Mr. Darcy in Dedham District Court in June 2016,
seeking to recover approximately $7, 000.00 in unearned
Project payments that Dr. Khoury claimed she had made to Mr.
Darcy (the " Prior Action"). Mr. Darcy responded to
Dr. Khouryâs summons and complaint in the Prior Action, but
asserted no counterclaim. The parties voluntarily resolved
the Prior Action in July 2016 by filing an Agreement for
Judgment that called for " [Mr. Darcy] to pay [Dr.
Khoury] $5, 000 by bank check within 10 days, " with
" mutual releases" to be exchanged (the "
Agreement for Judgment"). Joint Appendix (" App.,
" Docket No. 18.3), Tab 9. It is undisputed
that Mr. Darcy did not make the required payment to Dr.
Khoury within the ten-day period prescribed in the Agreement
for Judgment, with the result that Judgment in the amount of
$5, 000.00 entered for Dr. Khoury in the Prior Action in
September 2016. It also is undisputed that no mutual releases
were ever exchanged. Plaintiff did not appeal, and eventually
paid, the Judgment entered in favor of Dr. Khoury.
lost the Prior Action, this action represents Mr. Darcyâs
follow-up effort to recover what he claims Dr. Khoury still
owes him for the work that Mr. Darcy insists he performed on
the Project. Dr. Khoury has responded to Plaintiffâs
complaint with a series of counterclaims,  and with a
motion for summary judgment based on collateral estoppel or
res judicata (Docket No. 18.0). More specifically,
Dr. Khoury argues that the Judgment entered in the Prior
Action, which concerned the very same Project, bars
Plaintiffâs claims in this proceeding. See Kobrin v.
Board of Registration in Medicine, 444 Mass. 837, 843
(2005) (" The term âres judicataâ includes both claim
preclusion and issue preclusion. 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").
(Internal quotation marks and citations omitted.)
Mr. Darcy has filed a cross motion for summary on Dr.
Khouryâs counterclaims, arguing that her claims in
this proceeding are barred by the doctrine of res
judicata (Docket No. 18.5). Mr. Darcy challenges the
application of res judicata to his own claims,
however, on the basis that he was not procedurally required
to assert any affirmative claims he may have against Dr.
Khoury in the Prior Action because that case was litigated in
small claims court. See Massachusetts Uniform Small Claims
Rules 3(c) (" In the answer, or in a separate writing
filed with the court, the defendant may set forth any claim
which he or she has against the plaintiff within the
jurisdiction of the court in small claims cases, without
incurring any filing fee or surcharge ... Such claims
shall not be compulsory ...") (emphasis added). Dr.
Khoury, not surprisingly, opposes Mr. Darcyâs cross motion
for summary judgment.
Court conducted a hearing on the partiesâ respective motions
for summary judgment on November 30, 2017. Upon consideration
of the written submissions of the parties and the oral
arguments of counsel, both motions are ALLOWED for the
reasons stated on the record at the motion hearing and
summarized, briefly, here.
Courtâs analysis starts with the undisputed fact that both
this action and the Prior Action arise (or arose) from or
concern the same " matter, " that is, the Project
whereby Mr. Darcy performed (or failed to perform) certain
exterior landscaping and construction work at Defendantâs
home in or about 2015. Thus, in ordinary circumstances, both
sides would be expected to assert any and all claims that
they had against one another in the Prior Action, or face
losing their claims through the operation of collateral
estoppel. As explained by the Massachusetts Supreme Judicial
Court (" SJC"), the judicial doctrine of collateral
provides that " [w]hen an issue of fact or law is
actually litigated and determined by a valid and final
judgment, and the determination is essential to the judgment,
the determination is conclusive in a subsequent action
between the parties, whether on the same or a different
claim." The purpose of the doctrine is to conserve
judicial resources, to prevent the unnecessary costs
associated with multiple litigation, and to ensure the
finality of judgments.
Martin v. Ring, 401 Mass. 59, 60-61 (1987) (quoting
Fireside Motors, Inc. v. Nissan Motor Corp. in
U.S.A., 395 Mass. 366, 372 (1985)). The " guiding
principle" in determining whether to permit the
defensive use of collateral estoppel in any particular case
" is whether the party against whom it is asserted
lacked full and fair opportunity to litigate the issue in the
first action or [whether] other circumstances justify
affording him an opportunity to relitigate the issue."
Id. at 62.
case, it is apparent that Mr. Darcy had a " full and
fair opportunity" to litigate his affirmative claims
against Dr. Khoury in the Prior Action, even if he was not
procedurally required to do so. While the purported value of
Mr. Darcyâs affirmative claims (more than $46, 000.00)
significantly exceeds the jurisdictional limit in small
claims court matters (less than $7, 000.00), Mr. Darcy was
free to request a transfer of the Prior Action to the regular
docket of the District Court, or even to the Superior Court,
in order to allow him to press his claims. See Massachusetts
Uniform Small Claims Rules 4 (" The court may, upon
request of a party or upon its own motion, transfer a claim
or counterclaim begun under the small claims procedure to the
regular civil docket pursuant to G.L.c. 218, Â§ 24"). See
also G.L.c. 231, Â§ 104 (" Any other party, a plaintiff
against whom a claim, counterclaim, or cross claim is
brought, and a defendant who asserts a compulsory
counterclaim, may, provided that the amount of the claim
against such other party, the amount of the claim,
counterclaim or cross claim brought against such plaintiff,
or the amount of the compulsory counterclaim asserted by such
defendant, as the case may be, exceeds twenty-five thousand
dollars, file in the district court in which the action is
pending a claim of trial by the superior court ...").
The SJC has held that " a judge should rarely, if ever,
exercise his discretion to prevent removal" of a small
claims action when requested to do so. Daum v. Delta
Airlines, Inc., 396 Mass. 1013, 1014 (1986). Thus, Mr.
Darcy almost certainly could have pursued his affirmative
claims against Dr. Khoury in the Prior Action, and his
failure to seize that opportunity bars him from asserting his
claims in this subsequent proceeding between the same
parties. See Kobrin, 444 Mass. at 843 (" 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.") (internal quotation marks and citations
omitted, emphasis added). See also Taylor v.
Beaudry, 82 Mass.App.Ct. 105, 109 (2012) (affirming
application of doctrine of collateral estoppel to bar
relitigation, in Housing Court, of issues necessarily
resolved in prior small claims proceeding between same
the doctrine of collateral estoppel to Dr. Khouryâs
counterclaims in this action is more straight-forward. Like
Mr. Darcy, Dr. Khoury was required to bring all of her claims
against Plaintiff concerning the Project in a single
proceeding. See Heacock v. Heacock, 402 Mass. 21, 24
(1988) (" The doctrine [of collateral estoppel] is a
ramification of the policy considerations that underlie the
rule against splitting a cause of action, and 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"). It is undisputed that Dr. Khoury in fact
succeeded in obtaining a valid and final Judgment against Mr.
Darcy in the Prior Action on account of her claims. By law,
that Judgment constitutes Dr. Khouryâs full legal
compensation for her claims with respect to the Project, and
it precludes her from seeking additional compensation from
Plaintiff, based on the same subject matter, in this
proceeding. See Boyd v. Jamaica Plain Co-op. Bank, 7
Mass.App.Ct. 153, 163 (1979) (the " principle
prohibiting claim splitting" provides that " the
entry of a âvalid and final judgment extinguishes ... all
rights of a plaintiff to remedies against the defendant with
respect to all or any part of the transaction, or series of
connected transactions, out of which the action arose.â
") (quoting Restatement (Second) of Judgments Â§ 61(1)
(Tent. Draft No. 5, 1978)).
foregoing reasons, plaintiff Paul Darcyâs Amended Complaint
and Counts II through IV of defendant Kimberly Khoury, M.D.âs
counterclaims are dismissed in their entirety. Given the
Courtâs decision with respect to Counts II through IV of Dr.