Opinion
11-P-408 11-P-1035
04-02-2012
CITY OF CHELSEA v. ALBA CORONA-PEREZ, trustee (and three companion cases).
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
These companion cases arise out of decisions by a Land Court judge allowing motions for summary judgment by the city of Chelsea (city) on several foreclosure actions instituted against the various defendants. The defendants own numerous properties in Chelsea which were taken for nonpayment of taxes. The defendants argue that summary judgment was wrongfully allowed in each of the cases, that the judge erroneously denied various pretrial and posttrial motions, and that a single justice of this court erroneously denied the defendants' request for leave to file a postjudgment motion in the Land Court. We affirm.
Discussion. We begin our discussion by noting that the defendants' arguments are anything but clear. We will address each argument in turn.
1. Motions for a jury trial. The defendants first state that the judge's denial of their motions for a jury trial denied them their rights under the Sixth Amendment to the United States Constitution. The Sixth Amendment applies '[i]n all criminal prosecutions.' As this was not a criminal prosecution, the Sixth Amendment has no applicability here.
The defendants also challenge the judge's denial of their pretrial motions for injunctive relief and discovery. We need not address these issues, as they are not argued in the brief. Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
The defendants' argument that the instruments of taking were erroneously admitted without testimony of the collector, as required by the Sixth Amendment and Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), fails for this reason.
However, under G. L. c. 60, § 71, '[a]ny party may claim a jury trial on or before the return day, or within such further time as may on motion be allowed by the court[.]' The return dates in these cases were September 27, October 4, and November 1, 2010. The defendants filed motions for a jury trial in all three cases on October 29, 2010. The defendants therefore waived their right to a jury trial in the first two cases. See ibid. ([U]nless so claimed the right to jury trial shall be deemed to be waived'). Although the defendants' request in the third case was timely, the defendants did not submit a statement framing the issues, see ibid., or file such papers in Superior Court as are required to preserve their claim. G. L. c. 185, § 15. Accordingly, their right to a jury trial was waived. Ibid.
For the case involving 103 Shurtleff Street.
For the case involving 55 Library Street.
For the case involving 28 Carmel Street.
Moreover, the defendants moved for summary judgment, certifying that no genuine issues of material fact existed. See Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002). Thus, there was no error in the judge's denial of the motions for a jury trial.
2. Validity of the instruments of taking. The defendants' various challenges to the validity of the instruments of taking are frivolous. While they contend that the instruments lack an oath or affirmation by the collector as required by G. L. c. 60, § 54, it is evident from the face of the three instruments at issue that they were either executed as a sealed instrument or executed under the collector's 'hand and seal.' All three described the property being taken and the person to whom the taxes were assessed. The instruments therefore complied with
For example, their challenge to the instruments on the basis that the collector did not present identification to the notary and did not identify the capacity in which he was signing are directly contradicted by the language of the instruments themselves.
The defendants' challenge to instruments on the basis that the collector failed to affix his seal is frivolous in light of this fact.
G. L. c. 60, § 54, and the defendants offered nothing to demonstrate the existence of a dispute over whether they were misled by the notices. See G. L. c. 60, § 37 ('No tax title . . . shall be held to be invalid by reason of any error or irregularity which is neither substantial nor misleading '); Community Natl. Bank v. Dawes, 369 Mass. 550, 554 (1976) (nonmoving party 'must respond and allege specific facts which establish that there is a genuine, triable issue, or summary judgment . . . will be entered against him').
3. Execution of judgment. There was no error in the judge's denial of the defendants' motions for an injunction under Mass.R.Civ.P. 62(d), 365 Mass. 829 (1974). 'Under our law, the taking of an appeal stays execution of a judgment for the payment of money.' Borne v. Haverhill Golf & Country Club, Inc., 58 Mass. App. Ct. 306, 326 (2003), citing to Mass.R.Civ.P. 62(d). Because these cases did not involve judgments for the payment of money, the defendants were not entitled to a stay.
Rule 62(d) provides in pertinent part that 'the taking of an appeal from a judgment shall stay execution upon the judgment during the pendency of the appeal.' A 'writ of execution' is defined as '[p]rocess to enforce a judgment for the payment of money[.]' Mass.R.Civ.P. 69, 365 Mass. 836 (1974).
Accordingly, the city was entitled to take possession of the properties at issue as soon as judgment entered, forever foreclosing the defendants' rights of redemption. See G. L. c. 60, § 64 ('[t]he title conveyed by a . . . taking of land for taxes shall be absolute after foreclosure of the right of redemption by decree of the land court').
Moreover, the city had the right to take immediate possession of the defendants' land upon filing the notices of taking, and to 'collect the rent and other income from such land[.]' G. L. c. 60, § 53. While the Superior Court may, upon petition, enjoin a taking of possession or command the surrender of possession taken, ibid., this action was not transferred to Superior Court and the defendants never requested such relief.
4. Order of the single justice. On April 28, 2010, judgment entered in the Land Court foreclosing the defendants' right of redemption with respect to 27 Library Street. The judgment, however, misidentified the page number on which the instrument of taking was recorded at the Suffolk County Registry of Deeds. On May 6, the defendants tendered payment to the City to redeem 27 Library Street. The City thereafter moved to withdraw the complaint to foreclose on that property, which motion was allowed on May 12. The judgment foreclosing the right of redemption was vacated and a certificate of redemption was filed in the Suffolk County registry of deeds on May 18. On October 20, 2010, a corrected judgment entered in the Land Court identifying the correct book and page number in which the instrument of taking was filed, and which stated that '[t]his instrument corrects the Judgment dated April 28, 2010.' The defendants appealed from the original and corrected judgment, and asked this court's permission to file a motion pursuant to Mass.R.Civ.P. 60, 365 Mass. 828 (1974), in the Land Court. A single justice of this court denied the defendants' motion.
There was no abuse of discretion in the single justice's order because the defendants were relieved from the judgment when the judgment foreclosing their right of redemption was vacated. They had already received the relief they sought, rendering such a motion unnecessary.
In Appeals Court No. 2011-P-1035, we allow the plaintiff's request for attorney's fees and double costs, jointly and severally against the defendants and counsel in that case. Mass.R.A.P. 25, as appearing in 376 Mass. 949 (1979). In accordance with the procedure set out in Fabre v. Walton, 441 Mass. 9, 10-11 (2004), the plaintiff shall submit to this court a detailed and verified itemization of appellate attorney's fees and costs within fourteen days of receipt of this memorandum and order. Within fourteen days of receipt of that itemization, the defendants and counsel shall submit any opposition to the requested amount.
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In Land Court cases 10TL140528, 140531 and 140532, the judgments are affirmed and the orders denying relief under Mass.R.Civ.P. 62 are affirmed. In Appeals Court case 2011-P-1035, the orders of the single justice dated May 4 and May 31, 2011, are affirmed.
So ordered.
By the Court (Green, Hanlon & Carhart, JJ.),