CourtListener 2800428•Goduti v. City of Worcester
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14-P-597 Appeals Court
PHILIP L. GODUTI, trustee, 1 vs. CITY OF WORCESTER.
No. 14-P-597.
Suffolk. January 12, 2015. - May 13, 2015.
Present: Fecteau, Wolohojian, & Massing, JJ.
Moot Question. Practice, Civil, Moot case, Summary
judgment. Real Property, Foreclosure of tax title, Record
title. Mortgage, Foreclosure. Municipal Corporations, Tax
title property. Taxation, Real estate tax: tax taking.
Civil action commenced in the Land Court Department on
September 29, 2011.
The case was heard by Keith C. Long, J., on motions for
summary judgment.
Michael J. Markoff for the plaintiff.
Karen A. Meyer, Assistant City Solicitor, for the
defendant.
FECTEAU, J. Philip L. Goduti appeals from the allowance of
summary judgment against him by a judge of the Land Court in his
declaratory judgment action regarding the legality of the city
1
Of the Pension Nominee Trust.
2
of Worcester's (city) tax assessment for the years 2006 through
2011 on a property located at 2 Gambier Avenue, Worcester
(property). He first contends that the city was not authorized,
under G. L. c. 59, § 11, to assess taxes to his mortgagor, who
failed to pay the taxes, but was required, instead, to assess
taxes during those years only to him, the purported record owner
of the property following his foreclosure by entry pursuant to
G. L. c. 244, § 1. Second, Goduti argues that the judge
incorrectly determined, especially at the summary judgment
stage, that he had waived his foreclosure. While we need not
reach his arguments because this case has become moot, we reject
his contentions nevertheless.
1. Background. The property in question was first
acquired by Sandra and James Dunn, husband and wife, in 1973.
In 1989, Goduti became a mortgagee of the property behind two
others. 2 While remaining current on the first two mortgages, the
Dunns fell behind on their mortgage payments to Goduti.
Utilizing the foreclosure by entry procedure of G. L. c. 244,
§ 1, Goduti recorded a certificate of entry in the registry of
deeds on October 9, 1996, thereby signaling his intent to
foreclose. During the three-year period after Goduti filed his
certificate of entry, after which foreclosure would be completed
2
Both mortgages senior to Goduti's were in existence
through 2004, when one of the mortgages was discharged. The
other mortgage was discharged in 2011.
3
and his title would ripen, he accepted regular payments from the
Dunns; Goduti disputes that those payments were applied to the
mortgage, claiming that they were for use or occupation of the
property. When the Dunns divorced in 2004, the property was
conveyed, via a quitclaim deed, to Ms. Dunn alone, and the same
was recorded in the registry of deeds.
The city had been assessing real estate (and other) taxes
to the Dunns but, after the 2004 deed was recorded, it assessed
only Ms. Dunn. She stopped paying taxes in the fiscal year 2006
and, as a result, the city issued an instrument of taking in
2007. Ms. Dunn continued to occupy the house until 2011, when
she conveyed title to Goduti via a "confirmatory deed," and
Goduti then immediately conveyed the property to Michele A.
Bouffard, 3 who remains the current owner; Bouffard, in turn,
granted Goduti a mortgage. Apparently, as part of the
transaction between Goduti and Bouffard, Goduti agreed to pay
any tax debt owed to the city for the fiscal years 2006 through
2011.
Procedurally, Goduti (along with Bouffard) initiated this
declaratory judgment action in September, 2011, against the
city, challenging the validity of the tax assessments from 2006
through 2011. While the instant case was pending, the city
3
There is some inconsistency in the spelling of her name in
the record appendix.
4
filed a complaint (foreclosure complaint) in February, 2012,
seeking to foreclose the right to redemption following its 2007
taking of the property for unpaid taxes for the fiscal year
2006. 4 The judge, in September, 2012, denied Goduti's motion to
consolidate the two cases, but ordered that they proceed
simultaneously. 5
In February, 2014, the judge allowed the city's summary
judgment motion in the instant declaratory judgment action filed
by Goduti, determining that Goduti had waived his right to
foreclosure and, therefore, that he was not the owner of the
property from the years 2006 through 2011. As a result, the
judge determined, the city had validly taxed Ms. Dunn during
those years, based on the 2004 quitclaim deed from Mr. Dunn to
Ms. Dunn. Concomitantly, and in the related case, the judge
determined that the 2007 tax taking was valid, and ordered that,
if payment of the full tax debt was made within thirty days, the
4
Although the city filed its tax taking in 2007 after Ms.
Dunn failed to pay taxes in fiscal year 2006, Ms. Dunn also
failed to pay through fiscal year 2011. Under G. L. c. 60,
§ 61, the city needed to take the property only once; all
subsequent unpaid taxes after fiscal year 2006 were also due
under the 2007 taking.
5
The judge ruled, in part, that "[a]lthough these cases
arise from the same underlying factual situation, tax lien and
miscellaneous cases have different procedures and remedies that
weigh against consolidation. The court will, however,
coordinate the two cases so they proceed simultaneously with
events scheduled together and discovery taken in one case fully
applicable in the other."
5
property would be redeemed but, if not, the right to redemption
would be foreclosed. Immediately thereafter, in the related
case, Goduti stipulated to the amount of the tax debt and paid
it in full. In light of Goduti's actions, the city withdrew its
foreclosure complaint. Goduti appealed from the final judgment
in the instant declaratory judgment action. 6
2. Mootness. When Goduti paid the tax debt in full and
redeemed, and the city discharged its tax lien, there ceased to
be a case or controversy between Goduti and the city regarding
taxes owed for the fiscal years 2006 through 2011. See,
e.g., Flint v. Commissioner of Pub. Welfare, 412 Mass. 416,
418-419 (1992) (where plaintiffs challenged entitlement to
certain benefits under State program, but program was eliminated
during pendency of action, no actual controversy continued to
exist). Therefore, this case is moot. 7 We recognize that Goduti
may have felt compelled to pay the debt in the related case to
avoid foreclosure but, had he intended to preserve his rights in
the instant case, there were steps he could have taken to
6
Bouffard did not appeal.
7
Goduti argues that the action is not moot because, if we
were to determine that the judge erred in entering summary
judgment, and he were to ultimately prevail below upon remand
and further proceedings, the city would presumably credit the
amount that he paid for the years 2006 through 2011 toward
future taxes owed on the property. This argument ignores the
very point it seeks to address: whether this court can and
should address the merits of this case in light of the fact that
he paid the tax debt at issue.
6
signify his continuing intent to contest the assessment but
avoid foreclosure on the property, including paying the tax debt
under protest in the related case, or filing a motion to stay
judgment in that case pending the instant appeal. The record
shows no such signs, however. Instead, a fair reading of the
documents that led to the disposition of the tax lien action is
consistent with a global settlement agreement encompassing
Goduti's acceptance of the outcome in the instant case. In any
event, even if we were to decide the merits of the case, we
would be unpersuaded that the summary judgment was decided in
error.
3. Merits. "We review a grant of summary judgment de novo
to determine 'whether, viewing the evidence in the light most
favorable to the nonmoving party, . . . the moving party is
entitled to a judgment as a matter of law." Go-Best Assets Ltd.
v. Citizens Bank of Mass., 463 Mass. 50, 54 (2012), quoting
from Juliano v. Simpson, 461 Mass. 527, 529-530 (2012). See
Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002). Summary
judgment is appropriate where there is no genuine issue as to
any material fact. Ng Bros. Constr., Inc. v. Cranney, 436 Mass.
638, 643 (2002). Issues involving statutory interpretation are
questions of law for the court to decide and can appropriately
be resolved by summary judgment. See Annese Elec. Servs., Inc.
v. Newton, 431 Mass. 763, 764 n.2 (2000).
7
We first reject Goduti's contention that G. L. c. 59, § 11,
requires that a municipality assess taxes only to the record
owner. As the court in Boston v. Quincy Mkt. Cold Storage &
Warehouse Co., 312 Mass. 638, 644-645 (1942), made clear, the
statute allows a municipality to assess taxes to the owner in
fact even if he is not the person appearing of record to be the
owner of the property at issue. See Springfield v. Schaffer, 12
Mass. App. Ct. 277, 278-279 (1981).
Assuming arguendo that the statute permits a view that
restricts the city's assessment of taxes only to the record
owner, a view to which we do not subscribe, we discern no error
in the city's assessment to Ms. Dunn. Under Massachusetts law,
municipalities are only required to exercise "reasonable
diligence" in determining "the owner of real estate from records
in the county's registry of deeds and registry of probate"; what
constitutes reasonable diligence "varies with the
circumstances." Lamontagne v. Knightly, 30 Mass. App. Ct. 647,
653 (1991) (quotations omitted). Here, a record search would
have revealed the 2004 quitclaim deed from Mr. Dunn to Ms. Dunn.
While it also would have revealed Goduti's 1996 certificate of
entry, that certificate alone, as further explained, infra, did
not in itself signify that Goduti was the record owner. Goduti
has cited no case law for the proposition that a mortgagee
becomes record owner of a property either when he records a
8
certificate of entry, or three years after that entry in the
absence of further action, and we have found no support for that
proposition.
Moreover, the Dunns (and then Ms. Dunn alone) continued to
pay the taxes assessed to them long after Goduti recorded the
certificate of entry in 1996, and after the three-year holding
period passed. Goduti made no attempt over the years to correct
what he now asserts was an invalid assessment, and only asserted
his instant argument once it became clear that he would be
responsible, pursuant to his 2011 agreement with Bouffard, for
the tax debt. 8 See Robertson v. Plymouth, 18 Mass. App. Ct. 592,
596-597 (1984) (quotation omitted) (court, when faced with
challenge to city's diligence in determining record owner of
property, may consider that "validity of the tax title[] is put
into question long after the event" by party who could have, but
did not, previously complain). Therefore, it cannot be said
that the city acted unreasonably in continuing to assess taxes
to the Dunns, who occupied the property, had paid and continued
to pay the taxes, and appeared of record to be the title owners
both before and after the filing of the certificate of entry in
1996.
8
We note also that the record reveals no attempt by Goduti
to notify the city of his purported status as owner of record.
See G. L. c. 244, § 15A.
9
Second, and operating under a correct interpretation of
G. L. c. 59, § 11, the judge did not err in determining that
Goduti was not the owner in fact of the property at issue
because his title never ripened after he recorded the
certificate of entry in 1996. By law, Goduti would not have
acquired title to the property until three years after recording
the certificate of entry. Santiago v. Alba Mgmt., Inc., 77
Mass. App. Ct. 46, 50 (2010). See Joyner v. Lenox Savs. Bank,
322 Mass. 46, 52 (1947); Beaton v. Land Ct., 367 Mass. 385, 393
(1975). During that three-year period, a mortgagee may waive
his right to foreclosure by taking acts inconsistent with an
intent to foreclose, including by accepting a portion of the
mortgage debt or interest thereon. See Trow v. Berry, 113 Mass.
139, 147 (1873) (evidence showed that "the real relation between
the parties was that of debtor and creditor, mortgagor and
mortgagee; and cannot be explained consistently with the right
of the mortgagee to hold the estate under the
foreclosure"); Joyner, supra at 53-54. That is precisely what
happened here.
Specifically, the judge properly determined that there was
no genuine dispute of material fact concerning whether Goduti
had waived his right to foreclosure by entry during the
three-year holding period by accepting payments from Ms. Dunn
10
and applying them toward the mortgage or interest thereon. 9
Viewing the motion record in the light most favorable to Goduti,
ample evidence in the record showed that Goduti, during and
after the three-year period in which his title would have
ripened, accepted payments from Ms. Dunn and treated them as
payments toward the mortgage or interest thereon. 10
Namely, correspondence between attorneys representing the
Dunns (and then Ms. Dunn) and Goduti (as well as Goduti himself,
an attorney) during the three-year holding period indicated a
mutual interest in reaching a settlement for at least a partial
pay-off of the mortgage. There also was explicit confirmation,
including from Goduti himself, that such an agreement had been
reached. Letters between the parties after the three-year
period also indicated an ongoing agreement whereby Ms. Dunn
would continue to make payments toward the mortgage in exchange
for Goduti not foreclosing on the property. Additionally,
Goduti maintained ledgers tracking Ms. Dunn's payments to him,
9
We reject Goduti's argument that whether he waived
foreclosure was an issue that should have been reserved for the
jury. See Joyner, 322 Mass. at 54 ("there remains the question
whether some intentional act of the bank was as matter of law a
waiver or requires an inference of waiver") (emphasis supplied).
10
We also take note of a Land Court docket entry on July 8,
2013, that describes a conference with the judge during which
the parties expressed agreement "that these actions should be
decided on summary judgment."
11
marking the payments as "interest received," thereby also
confirming the agreement reached.
Moreover, Goduti's deposition testimony in the instant case
indicates that his intent during the three-year window was
inconsistent with an intent to foreclose. 11 We also note that
the judge was justified in essentially discounting Goduti's
affidavit -- in which he asserted that the payments from Ms.
Dunn during the three-year holding period were only for use and
occupation of the property -- in the face of the aforementioned
documentary evidence and his deposition testimony, given the
inconsistencies between them. See Lyons v. Nutt, 436 Mass. 244,
249 (2002); Phinney v. Morgan, 39 Mass. App. Ct. 202, 207 (1995)
(party cannot defeat summary judgment by submitting affidavit
that contradicts its previous sworn statements). For instance,
when asked during his deposition whether he remembered
initiating a foreclosure action in 1996, Goduti testified, "I
don't remember anything about it at all. . . . I just have no
present recollection of it." This contradicts his affidavit
statements concerning his specific intent during that time
period, and only renders more reliable the aforementioned
documentary evidence, which was made contemporaneously to the
relevant events in this case.
11
For example, Goduti stated that the house was subject to
a superior mortgage, was not worth much, and Ms. Dunn was an
"old lady" on whom he was adverse to foreclose.
12
Finally, and read in context of the documentary evidence,
the undisputed facts clearly demonstrate, as matter of law, that
Goduti waived his right to foreclosure. For example, Ms. Dunn
continued to occupy the property until 2011, Goduti made no
attempt to assert title following the recording of the Dunns'
2004 quitclaim deed, and Ms. Dunn herself conveyed title to
Goduti in 2011.
Appeal dismissed.
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