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16 CHANDLER ROAD_ Court Decision 2025 COMMONWEALTH OF MASSACHUSETTS LAND COURT DEPARTMENT OF THE TRIAL COURT ESSEX, ss. MISCELLANEOUS CASE NO. 25 MISC 000354 (RBF) JAMES W. LEWIS, ) Plaintiff, ) V. ) SEAN KELLEHER, DANIELLE KELLEHER, ) PETER JAMES, CHRISTINE JAMES, ) DOMINICK PANGALLO, as Mayor of the City ) of Salem, STAVROULA ORFANOS, as Building ) Commissioner of the City of Salem, THOMAS ) ST. PIERRE, as Building Commissioner of the ) City of Salem, JOHN BENNET, as Regional ) Building Commissioner, and THOMAS G. ) GATZUNIS, as Commissioner of the Department ) of Public Safety, Commonwealth of Massachusetts, ) Defendants. ) MEMORANDUM AND ORDER ALLOWING DEFENDANTS' MOTIONS TO DISMISS James W. Lewis filed his complaint (complaint or Compl.) on June 4, 2025, naming as defendants Sean and Danielle Kelleher(the Kellehers); Peter James and Christine James(the Jameses); Dominick Pangallo, as Mayor of the City of Salem; Stavroula Orfanos, as Building Commissioner of the City of Salem; Thomas St. Pierre, as Building Commissioner of the City of Salem (together with Pangallo and Orfanos, the municipal defendants); John Bennet, as Regional Building Commissioner; and Thomas G. Gatzunis, as Commissioner of the Department of Public Safety, Commonwealth of Massachusetts(together with Bennet, the state defendants). The 1 Kellehers filed Defendants Motion to Dismiss Pursuant to Mass. R. Civ. P. 12(b)(9)on August 13, 2025 (Kelleher Motion to Dismiss). At the case management conference on August 19, 2025, Kimberly Ahmed was dismissed without prejudice as a party plaintiff. The Motion to Dismiss of Defendants Dominick Pangallo, Stavroula Orfanos, and Thomas St. Pierre, with supporting memorandum (the Salem Memo), was filed on August 28, 2025, and was joined by defendants John Bennet and Thomas Gatzunis on August 29, 2025 (the Public Defendants' Motion to Dismiss). Mr. Lewis filed responses to the Kelleher Motion to Dismiss and the Public Defendants' Motion to Dismiss on October 3, 2025. Defendants Peter James and Christine James Joint Motion to Dismiss the Complaint Pursuant to Mass. R. Civ. P. 12(b)(5) and 12(b)(6)was filed on October 9, 2025 (James Motion to Dismiss). The motions to dismiss were heard on October 9, 2025. Mr. Lewis was granted until October 17, 2025 to submit further replies. He did not file any further replies, and the motions to dismiss were taken under advisement on October 17, 2025. This memorandum and order follows. The court treats the three motions to dismiss as brought pursuant to Mass. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted and Mass. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction. In considering a motion to dismiss for failure to state a claim, the court accepts as true all facts alleged in the complaint and draws all reasonable inferences in the plaintiff s favor,Bassichus v. Flores, 490 Mass. 143, 148 (2022), but does not accept "legal conclusions cast in the form of factual allegations." Iannacchino v. Ford Motor Co., 451 Mass. 623, 633 (2008), quoting Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2000). The plaintiff must plead factual allegations "`plausibly suggesting(not merely consistent with)' an entitlement to relief." Id. at 636, quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007). Generally, if matters outside the pleadings are presented to and not 2 excluded by the court, the motion will be treated as a motion for summary judgment. Mass. R. Civ. P. 12(b), (c). The court may, however, take into account matters of public record and documents integral to, referred to, or explicitly relied on in the complaint, whether or not attached, without converting the motion to a motion for summary judgment. Marram v. Kobrick Of Fund, Ltd., 442 Mass. 43, 45 n.4 (2004); Schaer, 432 Mass. at 477; Reliance Ins. Co. v. City of Boston, 71 Mass. App. Ct. 550, 555 (2008); Shuel v. Deleso, 16 LCR 329, 329 n.2 (2008) (Misc. Case No. 355798) (Long, J.). In considering a motion to dismiss for lack of subject matter jurisdiction, the court looks at the allegations of the complaint as well as any affidavits and matters outside the face of the complaint that the moving party may submit in support of its motion. Ginther v. Commissioner of Ins., 427 Mass. 318, 322 n.6(1998); see Cross v. Commissioner of Correction, 27 Mass. App. Ct. 1154 (1989). A motion to dismiss for lack of subject matter jurisdiction unsupported by affidavit "presents a `facial attack' based solely on the allegations of the complaint, which are taken as true for purposes of resolving the complaint."Hiles v. Episcopal Diocese of Massachusetts, 437 Mass. 505, 516 n.13 (2002). The court may, however, consider affidavits and other materials outside the pleadings when ruling on a motion to dismiss for lack of subject matter jurisdiction, at which point the burden falls to the plaintiff to prove the jurisdictional facts. Id. at 515-516. If a party presents material outside the pleadings, the court may treat a motion to dismiss for lack of subject matter jurisdiction as a motion for summary judgment, shifting the burden to the defendant to show that there is no genuine issue of material fact. Williams v. Episcopal Diocese of Massachusetts, 436 Mass. 574, 577 n.2 (2002). 3 Discussion The Complaint names nine defendants: the Kellehers, the Jameses, the municipal defendants, and the state defendants. The claims against all defendants may be dismissed on the grounds of either claim preclusion or lack of subject matter jurisdiction. I. The Kellehers and the Municipal Defendants The Kellehers and the municipal defendants argue that the complaint should be dismissed because all of Mr. Lewis's claims were brought and adjudicated in a previous action in the Superior Court,James W. Lewis v. Rebecca Curran, et al., no. 1677CVOI580(the Superior Court action or Lewis I). In that action, Mr. Lewis asserted that a pool and retaining wall built by the Kellehers failed to meet necessary zoning and permitting requirements. Complaint,Lewis L Mr. Lewis named as defendants the Kellehers, the members of the City of Salem Zoning Board of Appeals (the ZBA), and Thomas St. Pierre, in his capacity as Building Commissioner. Id. The Superior Court granted summary judgment against Mr. Lewis on February 28, 2020, holding that "[t]he Salem ZBA's decision is not based on a legally untenable ground and is not unreasonable, whimsical, capricious, or arbitrary." Salem Memo, Exh. D. The remaining claims were tried before a jury, and a final judgment was entered on September 26, 2022. Mr. Lewis's claims against the Kellehers and the municipal defendants are precluded by principles of res judicata. The res judicata doctrine is based on "[c]onsiderations of fairness and the requirements of judicial administration." Degiacomo v. City of Quincy, 476 Mass. 38, 41 (2016), quoting Wright Mach. Corp. v. Seaman-Andwall Corp., 364 Mass. 683 (1974). Res judicata encompasses issue preclusion and claim preclusion. Id. 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 4 action."Id., quoting Kobrin v. Board of Registration in Med, 444 Mass. 837, 843 (2005). 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."Id., quoting Kohrin, 444 Mass. at 843. Claim preclusion bars not only relitigation of all matters decided in a prior proceeding, but also all matters that could have been litigated in that proceeding. Gloucester Marine Rys. Corp. v. Charles Parisi, Inc., 36 Mass. App. Ct. 386, 391 (1994) (Gloucester Marine). "This is so even though a party is prepared in a second action to present different evidence or legal theories to support his claim."Id. A. Identical Parties or Privity of Parties Mr. Lewis, the Kellehers, and the Building Commissioner of Salem were all parties to the Superior Court action. While the Mayor of the City of Salem was not listed as a party in the Superior Court action, claim preclusion applies against those in privity with parties of the previous action. Degiacomo, 476 Mass at 41. Privity is a legal conclusion that the relationship between the party in the former case and the new party in the current case is sufficiently close to allow preclusion. See id. at 43. Whether privity exists between the former party and the new party depends on "the nature of the [new party's] interest, whether that interest was adequately represented by a party to the prior litigation, and whether binding the [new party] to the judgment is consistent with due process and common-law principles of fairness."Id. at 43-44. Mr. Lewis's claims against the ZBA and the building commissioner in the Superior Court action, and against the mayor and the building commissioner in this case, are essentially claims against the City of Salem (the city). The mayor, the ZBA, and the building commissioner are all involved in this matter in their official capacities, and not as individuals. The interests of all three positions do not significantly differ in this matter, if at all; there is little risk that the mayor's 5 interest as a town official was not adequately represented by the ZBA or the building commissioner in the Superior Court action. B. Identical Causes of Action Causes of action are identical if they arise from the same group of operative facts. See Laramie v. Philip Morris USA Inc., 488 Mass. 399, 411 (2021). Mr. Lewis's claims against the Kellehers and the ZBA in the Superior Court action arose from the construction of a swimming pool and retaining wall on the Kellehers' property, and potential zoning and permitting violations associated therewith. Complaint at 1-2,Lewis I. The claims in this case arise from the same facts: construction of the pool and retaining wall, potential violations of the building code and zoning requirements thereby, and the city's ensuing enforcement actions. The complaint expresses Mr. Lewis's dissatisfaction with his lawyers' performance in the Superior Court action, stating, for instance, that his lawyer"did not request a continuance to submit [Mr. Lewis's] newly discovered law MGL 40A Sec 6 Bylaw 10 although MGL 49 Sec 21 and City Ordinance Table 4.1.1 should have been sufficient to have had a dramatic change in the court's decision." Compl. at 9. However, new legal theories are not sufficient to overcome res judicata; neither is the poor performance of a party's lawyer in the previous case. See Gloucester Marine, 36 Mass. App. Ct. at 391. C. Final Judgment For res judicata purposes, summary judgment is a final judgment and may be given prelusive effect. Tinkham v. Jenny Craig, Inc., 45 Mass. App. Ct. 567, 571 (1998). Here, the Superior Court granted summary judgment on Lewis's challenge of the ZBA decision on February 28. 2020. After a hearing and review of the parties' submissions, the Court held that "[t]he Salem ZBA's decision is not based on a legally untenable ground and is not unreasonable, 6 whimsical, capricious, or arbitrary." Salem Memo, Exh. D. Final judgment in the Superior Court action entered on September 26, 2022. Because all three elements of claim preclusion are satisfied, Mr. Lewis's claims against the Kellehers and the municipal defendants will be dismissed with prejudice. I1. The State Defendants The Land Court is a court of limited jurisdiction. Bevilacqua v. Rodriquez, 460 Mass. 762, 766 (2011). As such, the Land Court may only hear matters to the extent stated in G. L. c. 185, § I (a)-(t). Although this includes jurisdiction over"[a]ll cases and matters cognizable under the general principles of equity jurisprudence where any right, title, or interest in land is involved," G. L. c. 185, § 1 (k), that "does not mean that any claim involving a piece of real property may be brought in the Land Court." Lambert v. Legee, 32 LCR 14, 17 (2024) (Mist. Case 23 MISC 000314) (Foster, J.). In particular, the Land Court has no authority to enforce the building code. See, e.g., Hayhurst v. Campbell, 13 LCR 250, 257 (2005) (Mist. Case No. 262031) (Sands, J.) ("This court's jurisdiction does not include review of decisions under the Building Code."); Bernstein v. Gore, 8 LCR 148, 152 (2000) (Misc. Case No. 242005) (Kilbom, J.) (Land Court has no jurisdiction over violations of State Building Code). Mr. Lewis's claims of building code violations must therefore be dismissed. Mr. Lewis's claims of failure to enforce the building code or otherwise improper behavior by the state defendants must be dismissed for two other reasons. First, the Land Court has no jurisdiction over general negligence or tort claims. See, e.g.,Sheppard v. Langone, 16 LCR 155, 156 (2008) (Misc. Case No. 354187) (Grossman, J.), and cases cited. Second, building code and zoning code enforcement decisions are discretionary functions to which sovereign immunity applies---even if this court could adjudicate claims of wrongdoing, the state defendants 7 would be immune from civil suit. See G. L. c. 258, § 10; Donohue v. City of Methuen, Civil Action No. 18-10713-LTS, 2019 U.S. Dist. LEXIS 83373, at *4 (D. Mass. May 17, 2019). Generally, dismissals for lack of subject matter jurisdiction are without prejudice.Abate v. Fremont Inv. & Loan, 470 Mass. 821, 836 (2015). The claims against the state defendants will be dismissed without prejudice. III. The Jameses Mr. Lewis names the Jameses as defendants in the complaint, but it is not clear what claims he asserts against them. He notes that, in 2023, the Jameses altered the grade of their property at 18 Linden Avenue and erected a retaining wall, allegedly in violation of city, state, and building regulations. Assuming that Mr. Lewis is alleging a building code violation, this court lacks jurisdiction over that claim for the reasons given above. Assuming that he is alleging a zoning violation, this court also lacks jurisdiction,because Mr. Lewis has not yet followed the process laid out in G. L. c. 40A, § 7, to enforce zoning ordinances. Section 7 requires Mr. Lewis to first request zoning enforcement from the city. If the city refuses to enforce the bylaw, he may lodge an administrative appeal with the ZBA. Only if the ZBA affirms the refusal to enforce will Mr. Lewis be allowed to seek judicial review of the ZBA's decision. G. L. c. 40A, §§ 8, 15, 17. Mr. Lewis followed this process with regard to the pool and retaining wall at issue in the Superior Court case, but does not appear to have done so for the retaining wall and regrading performed at 18 Linden Avenue in 2023. Mr. Lewis's claims against the Jameses will be dismissed without prejudice. 8 Conclusion For the foregoing reasons, the motions to dismiss are ALLOWED. The claims against the Kellehers and the municipal defendants are DISMISSED WITH PREJUDICE. The claims against the state defendants and the Jameses are DISMISSED WITHOUT PREJUDICE. Judgment shall enter accordingly. SO ORDERED By the Court (Foster, J.)A/Robert B. Foster Attest: /s/Deborah J Patterson Deborah J. Patterson, Recorder Dated: December 17, 2024 9 COMMONWEALTH OF MASSACHUSETTS LAND COURT DEPARTMENT OF THE TRIAL COURT ESSEX, ss. MISCELLANEOUS CASE NO. 25 MISC 000354 (RBF) JAMES W. LEWIS, ) Plaintiff, ) V. ) SEAN KELLEHER, DANIELLE KELLEHER, ) PETER JAMES, CHRISTINE JAMES, ) DOMINICK PANGALLO, as Mayor of the City ) of Salem, STAVROULA ORFANOS, as Building ) Commissioner of the City of Salem, THOMAS ) ST. PIERRE, as Building Commissioner of the ) City of Salem, JOHN BENNET, as Regional ) Building Commissioner, and THOMAS G. ) GATZUNIS, as Commissioner of the Department ) of Public Safety, Commonwealth of Massachusetts, ) Defendants. ) MEMORANDUM AND ORDER ALLOWING DEFENDANTS' MOTIONS TO DISMISS James W. Lewis filed his complaint (complaint or Compl.) on June 4, 2025, naming as defendants Sean and Danielle Kelleher (the Kellehers); Peter James and Christine James (the Jameses); Dominick Pangallo, as Mayor of the City of Salem; Stavroula Orfanos, as Building Commissioner of the City of Salem; Thomas St. Pierre, as Building Commissioner of the City of Salem (together with Pangallo and Orfanos, the municipal defendants); John Bennet, as Regional Building Commissioner; and Thomas G. Gatzunis, as Commissioner of the Department of Public Safety, Commonwealth of Massachusetts(together with Bennet, the state defendants). The I Kellehers filed Defendants Motion to Dismiss Pursuant to Mass. R. Civ. P. 12(b)(9)on August 13, 2025 (Kelleher Motion to Dismiss). At the case management conference on August 19, 2025, Kimberly Ahmed was dismissed without prejudice as a party plaintiff. The Motion to Dismiss of Defendants Dominick Pangallo, Stavroula Orfanos, and Thomas St. Pierre, with supporting memorandum(the Salem Memo), was filed on August 28, 2025, and was joined by defendants John Bennet and Thomas Gatzunis on August 29, 2025 (the Public Defendants' Motion to Dismiss). Mr. Lewis filed responses to the Kelleher Motion to Dismiss and the Public Defendants' Motion to Dismiss on October 3, 2025. Defendants Peter James and Christine James Joint Motion to Dismiss the Complaint Pursuant to Mass. R. Civ. P. 12(b)(5) and 12(b)(6)was filed on October 9, 2025 (James Motion to Dismiss). The motions to dismiss were heard on October 9, 2025. Mr. Lewis was granted until October 17, 2025 to submit further replies. He did not file any further replies, and the motions to dismiss were taken under advisement on October 17, 2025. This memorandum and order follows. The court treats the three motions to dismiss as brought pursuant to Mass. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted and Mass. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction. In considering a motion to dismiss for failure to state a claim, the court accepts as true all facts alleged in the complaint and draws all reasonable inferences in the plaintiffs favor, Bassichus v. Flores, 490 Mass. 143, 148 (2022), but does not accept `legal conclusions cast in the form of factual allegations." Iannacchino v. Ford Motor Co., 451 Mass. 623, 633 (2008), quoting Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2000). The plaintiff must plead factual allegations "`plausibly suggesting(not merely consistent with)' an entitlement to relief."Id. at 636, quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007). Generally, if matters outside the pleadings are presented to and not 2 excluded by the court, the motion will be treated as a motion for summary judgment. Mass. R. Civ. P. 12(b), (c). The court may, however, take into account matters of public record and documents integral to, referred to, or explicitly relied on in the complaint, whether or not attached, without converting the motion to a motion for summary judgment. Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43, 45 n.4 (2004); Schaer, 432 Mass. at 477; Reliance Ins. Co. v. City of Boston, 71 Mass. App. Ct. 550, 555 (2008); Shuel v. Deleso, 16 LCR 329, 329 n.2 (2008) (Misc. Case No. 355798) (Long, J.). In considering a motion to dismiss for lack of subject matter jurisdiction, the court looks at the allegations of the complaint as well as any affidavits and matters outside the face of the complaint that the moving party may submit in support of its motion. Ginther v. Commissioner oflns., 427 Mass. 318, 322 n.6 (1998); see Cross v. Commissioner of Correction, 27 Mass. App. Ct. 1 154 (1989). A motion to dismiss for lack of subject matter jurisdiction unsupported by affidavit"presents a `facial attack' based solely on the allegations of the complaint, which are taken as true for purposes of resolving the complaint."Hiles v. Episcopal Diocese of Massachusetts, 437 Mass. 505, 516 n.13 (2002). The court may, however, consider affidavits and other materials outside the pleadings when ruling on a motion to dismiss for lack of subject matter jurisdiction, at which point the burden falls to the plaintiff to prove the jurisdictional facts. Id. at 515-516. If a parry presents material outside the pleadings, the court may treat a motion to dismiss for lack of subject matter jurisdiction as a motion for summary judgment, shifting the burden to the defendant to show that there is no genuine issue of material fact. Williams v. Episcopal Diocese of Massachusetts, 436 Mass. 574, 577 n.2 (2002). 3 Discussion The Complaint names nine defendants: the Kellehers, the Jameses, the municipal defendants, and the state defendants. The claims against all defendants may be dismissed on the grounds of either claim preclusion or lack of subject matter jurisdiction. I. The Kellehers and the Municipal Defendants The Kellehers and the municipal defendants argue that the complaint should be dismissed because all of Mr. Lewis's claims were brought and adjudicated in a previous action in the Superior Court,James W. Lewis v. Rebecca Curran, et al., no. 1677CVO1580 (the Superior Court action or Lewis I). In that action, Mr. Lewis asserted that a pool and retaining wall built by the Kellehers failed to meet necessary zoning and permitting requirements. Complaint, Lewis I. Mr. Lewis named as defendants the Kellehers, the members of the City of Salem Zoning Board of Appeals(the ZBA), and Thomas St. Pierre, in his capacity as Building Commissioner. Id. The Superior Court granted summary judgment against Mr. Lewis on February 28, 2020, holding that "[t]he Salem ZBA's decision is not based on a legally untenable ground and is not unreasonable, whimsical, capricious, or arbitrary." Salem Memo, Exh. D. The remaining claims were tried before a jury, and a final judgment was entered on September 26, 2022. Mr. Lewis's claims against the Kellehers and the municipal defendants are precluded by principles of res judicata. The res judicata doctrine is based on "[c]onsiderations of fairness and the requirements of judicial administration." Degiacomo v. City of Quincy, 476 Mass. 38, 41 (2016), quoting Wright Mach. Corp. v. Seaman-Andwall Corp., 364 Mass. 683 (1974). Res judicata encompasses issue preclusion and claim preclusion. Id. 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 4 action."Id., quoting Kobrin v. Board q Registration in Med, 444 Mass. 837, 843 (2005). 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."Id., quoting Kobrin, 444 Mass. at 843. Claim preclusion bars not only relitigation of all matters decided in a prior proceeding, but also all matters that could have been litigated in that proceeding. Gloucester Marine Rys. Corp. v. Charles Parisi, Inc., 36 Mass. App. Ct. 386, 391 (1994) (Gloucester Marine). "This is so even though a party is prepared in a second action to present different evidence or legal theories to support his claim."Id. A. Identical Parties or Privity of Parties Mr. Lewis, the Kellehers, and the Building Commissioner of Salem were all parties to the Superior Court action. While the Mayor of the City of Salem was not listed as a party in the Superior Court action, claim preclusion applies against those in privity with parties of the previous action. Degiacomo, 476 Mass at 41. Privity is a legal conclusion that the relationship between the party in the former case and the new party in the current case is sufficiently close to allow preclusion. See id. at 43. Whether privity exists between the former party and the new party depends on "the nature of the [new party's] interest, whether that interest was adequately represented by a party to the prior litigation, and whether binding the [new party] to the judgment is consistent with due process and common-law principles of fairness."Id. at 43-44. Mr. Lewis's claims against the ZBA and the building commissioner in the Superior Court action, and against the mayor and the building commissioner in this case, are essentially claims against the City of Salem (the city). The mayor, the ZBA, and the building commissioner are all involved in this matter in their official capacities, and not as individuals. The interests of all three positions do not significantly differ in this matter, if at all; there is little risk that the mayor's 5 interest as a town official was not adequately represented by the ZBA or the building commissioner in the Superior Court action. B. Identical Causes of Action Causes of action are identical if they arise from the same group of operative facts. See Laramie v. Philip Morris USA Inc., 488 Mass. 399, 411 (2021). Mr. Lewis's claims against the Kellehers and the ZBA in the Superior Court action arose from the construction of a swimming pool and retaining wall on the Kellehers' property, and potential zoning and permitting violations associated therewith. Complaint at 1-2, Lewis L The claims in this case arise from the same facts: construction of the pool and retaining wall, potential violations of the building code and zoning requirements thereby, and the city's ensuing enforcement actions. The complaint expresses Mr. Lewis's dissatisfaction with his lawyers' performance in the Superior Court action, stating, for instance, that his lawyer"did not request a continuance to submit [Mr. Lewis's] newly discovered law MGL 40A Sec 6 Bylaw 10 although MGL 49 Sec 21 and City Ordinance Table 4.1.1 should have been sufficient to have had a dramatic change in the court's decision."Compl. at 9. However, new legal theories are not sufficient to overcome res judicata; neither is the poor performance of a party's lawyer in the previous case. See Gloucester Marine, 36 Mass. App. Ct. at 391. C. Final Judgment For res judicata purposes, summary judgment is a final judgment and may be given prelusive effect. Tinkham v. Jenny Craig, Inc., 45 Mass. App. Ct. 567, 571 (1998). Here, the Superior Court granted summary judgment on Lewis's challenge of the ZBA decision on February 28, 2020. After a hearing and review of the parties' submissions, the Court held that "[t]he Salem ZBA's decision is not based on a legally untenable ground and is not unreasonable, 6 whimsical, capricious, or arbitrary." Salem Memo, Exh. D. Final judgment in the Superior Court action entered on September 26, 2022. Because all three elements of claim preclusion are satisfied, Mr. Lewis's claims against the Kellehers and the municipal defendants will be dismissed with prejudice. II. The State Defendants The Land Court is a court of limited jurisdiction. Bevilacqua v. Rodriquez, 460 Mass. 762, 766 (2011). As such, the Land Court may only hear matters to the extent stated in G. L. c. 185, § 1 (a)-(t). Although this includes jurisdiction over"[a]II cases and matters cognizable under the general principles of equity jurisprudence where any right, title, or interest in land is involved," G. L. c. 185, § I (k), that "does not mean that any claim involving a piece of real property may be brought in the Land Court."Lambert v. Legee, 32 LCR 14, 17 (2024) (Misc. Case 23 MISC 000314)(Foster, J.). In particular, the Land Court has no authority to enforce the building code. See, e.g.,Hayhurst v. Campbell, 13 LCR 250, 257 (2005) (Misc. Case No. 262031) (Sands, J.) ("This court's jurisdiction does not include review of decisions under the Building Code."); Bernstein v. Gore, 8 LCR 148, 152 (2000) (Misc. Case No. 242005) (Kilborn, J.) (Land Court has no jurisdiction over violations of State Building Code). Mr. Lewis's claims of building code violations must therefore be dismissed. Mr. Lewis's claims of failure to enforce the building code or otherwise improper behavior by the state defendants must be dismissed for two other reasons. First, the Land Court has no jurisdiction over general negligence or tort claims. See, e.g.,Sheppard v. Langone, 16 LCR 155, 156 (2008) (Misc. Case No. 354187) (Grossman, J.), and cases cited. Second, building code and zoning code enforcement decisions are discretionary functions to which sovereign immunity applies--even if this court could adjudicate claims of wrongdoing, the state defendants 7 would be immune from civil suit. See G. L. c. 258, § 10; Donohue v. City ofMethuen, Civil Action No. 18-10713-LTS, 2019 U.S. Dist. LEXIS 83373, at *4 (D. Mass. May 17, 2019). Generally, dismissals for lack of subject matter jurisdiction are without prejudice.Abate v. Fremont Inv. & Loan, 470 Mass. 821, 836 (2015). The claims against the state defendants will be dismissed without prejudice. Ill. The Jameses Mr. Lewis names the Jameses as defendants in the complaint, but it is not clear what claims he asserts against them. He notes that, in 2023, the Jameses altered the grade of their property at 18 Linden Avenue and erected a retaining wall, allegedly in violation of city, state, and building regulations. Assuming that Mr. Lewis is alleging a building code violation, this court lacks jurisdiction over that claim for the reasons given above. Assuming that he is alleging a zoning violation, this court also lacks jurisdiction, because Mr. Lewis has not yet followed the process laid out in G. L. c. 40A, § 7, to enforce zoning ordinances. Section 7 requires Mr. Lewis to first request zoning enforcement from the city. If the city refuses to enforce the bylaw, he may lodge an administrative appeal with the ZBA. Only if the ZBA affirms the refusal to enforce will Mr. Lewis be allowed to seek judicial review of the ZBA's decision. G. L. c. 40A, §§ 8, 15, 17. Mr. Lewis followed this process with regard to the pool and retaining wall at issue in the Superior Court case,but does not appear to have done so for the retaining wall and regrading performed at 18 Linden Avenue in 2023. Mr. Lewis's claims against the Jameses will be dismissed without prejudice. 8 Conclusion For the foregoing reasons, the motions to dismiss are ALLOWED. The claims against the Kellehers and the municipal defendants are DISMISSED WITH PREJUDICE. The claims against the state defendants and the Jameses are DISMISSED WITHOUT PREJUDICE. Judgment shall enter accordingly. SO ORDERED By the Court (Foster, J.)Is/Robert R. Foster Attest: Is/Deborah J. Patterson Deborah J. Patterson, Recorder Dated: December 17, 2024 9