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-1190
LHPNJ LLC
vs.
JEFFERSON DEVELOPMENT PARTNERS LLC & another.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This appeal stems from a tax lien foreclosure initially
brought by the city of Taunton (city) against Jefferson
Development Partners LLC (Jefferson), the owner of approximately
forty-two acres on which an historic textile mill known as the
Whittenton Mill once operated (the property).2 As we discuss in
more detail below, Jefferson failed to pay its property taxes
and various municipal charges including approximately one-half
1 The Attorney General, intervener.
2The property at issue is comprised of two parcels: a small parcel on which there are no buildings (38-107) and a large forty-two acre parcel on which there are many buildings (38-137). This appeal primarily concerns the tax lien on the larger parcel. For ease of reference, we refer to both parcels as "the property." of one million dollars it owed the city for fire safety
remediation services known as "fire watches." As a result, in
August 2015, the city took tax title to the property and later
initiated proceedings in the Land Court to foreclose the owner's
right to redeem the property. Whittenton Holdings (Whittenton),
the holder of a first mortgage on the property, filed an
objection and defense to the city's tax lien petition. However,
before an amount for redemption was settled, the city conducted
a tax title auction. LHPNJ LLC (LHPNJ), a limited liability
company incorporated for the purpose of purchasing the property,
was the successful bidder and on October 25, 2017, the city
assigned LHPNJ its tax title to the property. LHPNJ
subsequently was substituted for the city as the plaintiff.
During the ensuing years of litigation, a judge of the Land
Court issued several decisions culminating in an order from
which the parties cross-appealed.
For the reasons discussed below, we affirm the substance of
the order but conclude that it must be vacated, and the case
remanded, for a determination regarding the applicability of the
United States Supreme Court's recent decision in Tyler v.
Hennepin County, 598 U.S. 631 (2023), and recent amendments to
G. L. c. 60. See St. 2024, c. 140, §§ 80-99, 250.
Background. We begin with an overview of the procedural
and factual background, and reserve specific facts for our
2 discussion of the issues. The property contains several
interconnected buildings which, by 2011, had fallen into
disrepair. Despite their poor condition, some of the buildings
had tenants. Due to the lack of functioning fire alarm and
suppression systems, the city's fire department ordered a fire
watch pursuant to G. L. c. 148, § 5, beginning in December 2011.
That fire watch, and subsequent ones, required the fire
department to provide an onsite presence at various times during
a four-year period. Jefferson's owner, David Murphy, agreed
that the fire watches were necessary under the circumstances
and, although he agreed to pay for them and did pay for some of
the charges, at the time the city took tax title, he owed the
city about one-half of one million dollars in fire watch
charges.
After the city took tax title to the property in August
2015, it created a tax title account which included, among other
things, missed tax payments, accrued interest, and the fire
watch charges. About a year later, in April 2016, the city
filed a petition pursuant to G. L. c. 60, § 65, seeking to
foreclose all rights to redeem the property.
Whittenton received notice of the foreclosure action
pursuant to G. L. c. 60, § 66, and filed an objection on April
19, 2017, challenging, among other things, the inclusion of the
3 fire watch charges in the redemption amount.3 As we have noted,
before any of these issues were addressed, the city held a tax
title auction and LHPNJ was the successful bidder. LHPNJ paid
the city all overdue taxes, applicable interest and unpaid
municipal charges, including approximately $459,000 that the
city claimed represented its fire watch expenses.4 After LHPNJ
was substituted as plaintiff in place of the city, it filed a
motion requesting an entry of finding under G. L. c. 60, § 68,
of the amount the owner or a person claiming an interest must
pay to redeem the property. Whittenton filed additional
objections, and the parties filed cross motions for summary
judgment. Following a hearing, the motions were denied. As
relevant here, the judge concluded that the record contained
sufficient evidence to defeat Whittenton's claims that (1) the
city had no authority to impose the fire watches under G. L.
c. 148, § 5; (2) the fire watch charges were unreasonable or
disproportionate and therefore were unconstitutional; (3) LHPNJ
was estopped from collecting the charges as a result of the city
not informing Whittenton's predecessor of them; and (4) the tax
3 The amount of the lien for fire watch expenses may be challenged by a party with an interest in the property at a right of redemption proceeding in accordance with G. L. c. 60, §§ 65, 68, and related provisions.
4 Specifically, LHPNJ paid $1,236,631.37 for parcel 38-137, and $6,996.02 for parcel 38-107.
4 title auction was unlawful. With regard to LHPNJ's cross motion
for summary judgment, which asserted that neither Jefferson nor
Whittenton could challenge the fire watch liens because they
failed to exhaust their administrative remedies, the judge
stated that there was a substantial question "whether anyone has
the right to contest charges arising under [G. L.] c. 148, § 5,
and if not, whether [the statute] comports with federal and
state notions of due process." Based on the suggestion that the
statute might be unconstitutional, the Attorney General
intervened in the case.5
Following a period in which the parties unsuccessfully
attempted to settle their disputes, a new round of motions and
cross motions for summary judgment were filed. In a
comprehensive order entered on March 17, 2021, the judge entered
summary judgment in favor of LHPNJ on Whittenton's claim that
the tax title auction and subsequent assignment to LHPNJ was
unlawful and denied LHPNJ's motion for summary judgment on its
claim that the fire watch liens were valid. As to the latter
claim, the judge concluded that genuine issues of material fact
existed as to the perfection of the fire watch liens and ordered
a trial on that issue. The judge declined to address the
constitutional issues until after trial.
5 We acknowledge the amicus brief filed by the Attorney General.
5 A one-day trial was conducted on September 16, 2021, at
which the city's fire chief Timothy Bradshaw, fire inspector and
captain Robert Bastis, and treasurer/collector Barbara Auger;
and the property owner, David Murphy, testified. The judge then
issued an order containing detailed findings of fact and
conclusions of law on October 18, 2021. The judge found that
the fire department had conducted five separate fire watches
between 2011 and 2015 -- and not two watches as LHPNJ alleged
before trial or one continuous watch as LHPNJ alleged at trial.
The judge further found that the city perfected its lien with
respect to only two of those five watches. Ultimately, the
judge found that the amount of the perfected liens corresponding
to the fire watch charges was $88,349.59, far less than the
$458,646.77 that LHPNJ claimed Jefferson was required to pay to
LHPNJ to redeem its title.
Following the trial, the judge returned to the question
whether Whittenton had been deprived of due process. The judge
declined to rule on the question whether G. L. c. 148, § 5, was
unconstitutional on its face, but determined that the statute,
as applied in the present circumstances, did not violate
Whittenton's right to due process. In an order dated December
20, 2021, the judge explained that because Jefferson was aware
of, consented to, and agreed to pay for the fire watches, it
waived any right to further process. The judge further reasoned
6 that Whittenton, as Jefferson's mortgagee, had no separate
independent due process rights.
Having resolved all disputes between the parties, the judge
then held an evidentiary hearing to determine the amount needed
to be paid to redeem the property and avoid a judgment of
foreclosure. On April 19, 2023, the judge entered an
interlocutory order titled "Order on Motion for Entry of
Finding." Among other things, the order affirmed the exclusion
of most of the fire watch charges in the final redemption
amount.6
LHPNJ then filed a petition for relief from the order
pursuant to G. L. c. 231, § 118, which was denied by a single
justice of this court. However, the single justice also
determined that the "issues involved in this matter have
sufficient gravity that they should not be decided by a single
justice, but by a full panel of this court. . . . I grant leave
to the plaintiff LHPNJ, LLC to file an interlocutory appeal from
the judge's [April 19, 2023] order, and for the defendant
6 The redemption amount for parcel 38-107 was $6,996.02 in principal and interest as of November 8, 2017; and $673,666.07 in principal and interest for parcel 38-137.
7 Whittenton Holdings, LLC to file an interlocutory cross-appeal."7
These appeals are now before us.
Discussion. 1. LHPNJ's appeal. LHPNJ argues that the
judge erred by characterizing the fire watch as five separate
events and for faulting the city for not following certain
statutory requirements in connection with each separate watch.
LHPNJ further argues that, even if there were technical
irregularities in imposing the fire watches, they were neither
substantial nor misleading and, therefore, pursuant to G. L.
c. 60, § 37 (which we discuss below), the charges are valid.
Lastly, LHPNJ asserts that, in any event, public policy
considerations support the validity of all of the fire watch
First, the judge's finding that there were multiple fire
watches and not two fire watches (or one continuous watch) is
amply supported by the record.8 "When reviewing the trial
judge's decision, we accept his findings of fact as true unless
they are clearly erroneous." Andover Hous. Auth. v. Shkolnik,
443 Mass. 300, 306 (2005). See Mass. R. Civ. P. 52 (a), as
7 Although Jefferson has filed a brief, it appears that the single justice granted Whittenton leave to notice an interlocutory cross appeal, not Jefferson.
8 In light of our conclusion, we need not address Whittenton's argument that LHPNJ is estopped from asserting that there was one continuous fire watch rather than two as it had alleged before trial.
8 amended, 423 Mass. 1402 (1996). While it is true, as LHPNJ
asserts, that the judge found Murphy, on behalf of Jefferson,
agreed to the charges, that fact does not detract from the
evidence that the watches were separate events that began and
ended on specific dates for "distinct reasons."9 Notably, the
judge found that while each fire watch began because the
property's alarm and sprinkler systems were not working, the
first three watches ended when Jefferson repaired the systems,
the fourth watch ended when Jefferson hired a private firm to
perform fire watch duties, and the fifth watch ended once most
of the tenants had departed. In making these findings, the
9 The judge found that the first watch (2011 watch) began on December 19, 2011, because the mill's alarm and fire-suppression systems weren't functioning safely and because the mill had tenants. The fire department ended the 2011 watch on January 3, 2012, because Jefferson had repaired its alarm and fire- suppression systems. A second fire watch (early 2012 watch) began on January 13, 2012, and ended on February 15, 2012. The fire department imposed this watch after it became clear the repairs from the 2011 watch didn't hold. The fire department ended the early 2012 watch once it was satisfied that Jefferson had repaired its alarm and fire-suppression systems. Then, a third fire watch (late 2012 watch) began December 5, 2012, and ended December 16, 2012. The fire department imposed this watch after the property's alarm and fire-suppression systems malfunctioned again. A fourth fire watch (fourth watch) began January 4, 2013, and ended March 27, 2014, when Jefferson hired a private firm to conduct protective services. By this time, Jefferson had filed for bankruptcy, and the services of the private firm ended abruptly when the bankruptcy court permitted the trustee to abandon the property on June 19, 2015. Thus, another fire watch (fifth watch) began on that day and ended on September 8, 2025, at which time Jefferson agreed to end all use of the mill by tenants other than in one heated building, and to install entry (burglar) alarms.
9 judge relied on the testimony of the fire chief and fire captain
which was supported by documentary evidence and stipulations by
the parties.10 In short, while we acknowledge, as LHPNJ asserts,
that the fire safety issues were not completely resolved until
Jefferson agreed to restrict tenants to one building, there is
no basis for disturbing the judge's finding that there were five
separate fire watches.
Next, we are not persuaded, as LHPNJ asserts, that even if
there were five separate fire watches, the city perfected five
liens all of which should be treated as properly included in the
tax title account and, as a result, should be included in the
redemption amount. The statute, G. L. c. 148, § 5, provides
that when a condition likely to cause fire is present, the local
fire department can remediate that condition and charge the
property owner for the cost of that remediation. Before any
type of remediation begins, the statute requires that the fire
department (1) "make an investigation as to the existence of
conditions likely to cause fire;" (2) "in writing, order such
conditions to be remedied;" and (3) "serve[] [the order] upon
the owner, occupant or his authorized agent by a member of the
fire or police department." G. L. c. 148, § 5.
10 The fire chief testified that the fire watches were "on and off." In addition, the fire captain testified that "[t]he fire watch was ongoing and had come on and off at least a few times."
10 "If said order is not complied with within twenty-four hours, the person making such order, or any person designated by him, may enter into such building or upon such premises and remove such refuse or any useable materials or abate such conditions at the expense of such owner or occupant."
Id. Thereafter, the costs of remediation "shall be a debt due
the [C]ommonwealth or the city or town, as the case may be, upon
completion of such removal or abatement and the rendering of an
account therefor to the owner." Id. The collection of such
debts is governed by G. L. c. 139, § 3A, which provides that
"[i]f the debt for which such a lien is in effect remains unpaid when the assessors are preparing a real estate tax list and warrant to be committed . . . the town collector of taxes . . . shall certify such debt to the assessors, who shall forthwith add such debt to the tax on the property."
Here, the judge specifically disallowed the charges
incurred in the 2011 and early 2012 fire watches due to the
city's failure to follow all of the statutory requirements
described above. As the judge explained:
"The Court holds LHPNJ failed to prove at trial that, before the Department started the 2011 and the Early 2012 Watches, the Department provided Jefferson 'in writing, [an] order [that unsafe] conditions . . . be remedied,' that notice of such an order was 'served upon [Jefferson] by a member of the fire or police department,' or that the Department entered the Property to begin either of the Watches after Jefferson failed to comply with a properly drafted and properly served abatement order. The summary- judgment and trial record show that the Department served Jefferson with proper c. 148, § 5 orders prior to starting the Late 2012 and Fourth Fire Watches. LHPNJ failed to prove at trial that similar orders issued prior to the 2011 and Early 2012 Watches. LHPNJ thus has not shown that the
11 City perfected its lien for charges relating to the 2011 and Early 2012 Watches."
The judge also disallowed the charges incurred in
connection with the fourth watch reasoning that although the
fire department had notified Jefferson of its intent to impose a
fourth watch, the city "either chose not to send, or neglected
to send, Jefferson an accounting for the Fourth Watch once it
had ended." The judge then concluded that by failing to send an
accounting, the charges for the fourth watch never became a debt
due to the city.
LHPNJ argues that the errors and omissions found by the
judge regarding the implementation of the liens for the 2011,
early 2012, and fourth watches are not substantial or misleading
within the meaning of G. L. c. 60, § 37, and therefore cannot be
the basis for invalidating the fire watch charges. We disagree.
General Laws c. 60, § 37, provides, as relevant here, that
"[n]o tax title and no item included in a tax title account shall be held to be invalid by reason of any error or irregularity which is neither substantial nor misleading, whether such error or irregularity occurs in the proceedings of the collector or the assessors or in the proceedings of any other official or officials charged with duties in connection with the establishment of such tax title or the inclusion of such item in the tax title account."
"Whether an error or irregularity on the part of a collector is
substantial or misleading within the meaning of G. L. c. 60,
§ 37, is a question of fact which must be decided according to
12 the circumstances of each particular case." Pass v. Seekonk, 4
Mass. App. Ct. 447, 450 (1976), citing Fall River v. Conanicut
Mills, 294 Mass. 98, 100 (1936). Here, LHPNJ had the burden of
proving that the failures noted by the judge were not
substantial. See Pass, supra. The judge expressly found that
LHPNJ had not met its burden. We discern no error.
The purpose of the provision in G. L. c. 60, § 37, on which
LHPNJ relies is to relieve municipalities from the burdens of
strict compliance with the tax foreclosure procedures when minor
errors are involved. See Boston v. Ditson, 4 Mass. App. Ct.
323, 329 n.6 (1976) (Ditson). As Whittenton notes in its brief,
the statute has been applied in cases involving insignificant
errors in tax deeds and related materials but has never been
applied to cure a municipal officer's failure to take the
necessary steps to create a debt at the time it accrued.11
11See McHale v. Treworgy, 325 Mass. 381, 384 (1950) (erroneous property description was "so substantial and misleading" it rendered tax deed invalid); Quincy v. Wilson, 305 Mass. 229, 232 (1940) (collector's incorrect filing of tax deed led to wrongful inclusion of $1,400 of excessive taxes in taking, an error which "could hardly be found to be 'neither substantial nor misleading'" [citation omitted]); Pass, 4 Mass. App. Ct. at 450-451 (wrong name on tax demand and tax deed rendered deed invalid). Contrast Krueger v. Devine, 18 Mass. App. Ct. 397, 401-402 (1984) (description of land taken for nonpayment of taxes not so vague as to constitute substantial or misleading irregularity); Hilde v. Dixon, 16 Mass. App. Ct. 981, 982 (1983) (no substantial or misleading error when demand was served on deceased person, where administrator of estate was aware of tax bill and demand); Springfield v. Schaffer, 12 Mass.
13 In addition, we are not persuaded by LHPNJ's claim that the
city should be excused from its errors because Jefferson was
notified of the fire department's intent to implement
remediation efforts and was aware of the cost of those efforts,
or because the city ultimately recorded the liens at the
registry of deeds. As we have previously noted, there is no
dispute that Jefferson knew about and agreed to the fire
watches, nonetheless, the failures at issue here are not mere
formalities. The judge found that the city failed to satisfy
the statute's requirements by either failing to provide written
notice of the need for remediation (2011 and early 2012 watches)
or by failing to provide an accounting (fourth watch). As a
result, those charges never became debts due to the city and
consequently could not be added to the tax account on the
property. Nor do we agree with LHPNJ that because the tax lien
foreclosure process has been described as "archaic and arcane"
that the city should be excused for its errors. Tallage
Lincoln, LLC v. Williams, 485 Mass. 449, 450 (2020). It
suffices to note that the city did, in fact, fully comply with
the statutory requirements with respect to two of the five fire
watches.
App. Ct. 277, 279-281 (1981) (tax bill sent to officer and principal stockholder of corporation rather than to corporation did not constitute substantial or misleading error).
14 Lastly, LHPNJ's argument that "public policy/safety
concerns require that the fire watch expenses be upheld in full"
is not persuasive in the circumstances presented here if only
because the city was paid. LHPNJ, a private for-profit company,
purchased the tax title at a public auction and paid the city
what it was owed.12 Although we understand that LHPNJ did not
receive what it thought it was getting, we are hard pressed to
conclude that an arm's length deal like the one that occurred
here at the tax auction had negative consequences for public
safety.
2. Whittenton's appeal. Whittenton first challenges the
validity of the tax title auction at which LHPNJ became the
successor in interest to the city.13 Second, Whittenton claims
that the judge improperly concluded that, as a mortgagee, it had
no due process rights under G. L. c. 148, § 5. And third,
Whittenton faults the judge for not ruling that G. L. c. 148,
§ 5, is unconstitutional on its face. We address each argument
in turn.
12See affidavit submitted by Noreen Harrington, a principal of LHPNJ.
13The judge denied Whittenton's motion for summary judgment on this ground. We note, as LHPNJ asserts, that we generally do not review the denial of a motion for summary judgment where, as here, there has been a trial. However, the trial was limited to two discrete issues and, more importantly, we understand the order of the single justice as permitting Whittenton to appeal from all issues decided in favor of LHPNJ.
15 Contrary to Whittenton's assertion, the judge did not err
in concluding that the city's tax auction complied with G. L.
c. 60, § 52, which requires, as relevant here, that the city
post notice of the public auction of a tax title at least
fourteen days in advance through publication in a local
newspaper and by posting the notice "in 2 or more convenient and
public places in said city or town." It is undisputed that the
auction originally was scheduled for April 26, 2017. The city
posted public notices of the auction, as required by the
statute, and also posted information about the auction on its
website. When no registered bidders came forward, the auction
was cancelled. Thereafter, the auction was rescheduled for
October 25, 2017, and the city posted accurate notices in the
Taunton Daily Gazette, the Taunton city hall, and the Taunton
public library. However, the city's website was not updated.
Whittenton claims that the auction held on October 25, 2017,
should be declared null and void because the city's website
still referred to the original April date even though that date
had passed.
We agree with the conclusion reached by the judge that the
auction was valid despite the erroneous information on the
city's website. The city not only complied with the statutory
requirements regarding the posting of the October date, but, as
the judge noted, there was no evidence that the public -- or
16 Whittenton -- was misled. While the absence of information
containing the new date is regrettable, the failure to update
the city's website did not render the auction invalid.
Next, Whittenton contends that the judge erred when he
ruled (after trial) that because Jefferson had agreed to the
imposition of the fire watches, agreed in advance to pay for
them, and received two accountings stating the cost of two of
the five watches, that Jefferson "waived its right to any
additional process that may have been due." It follows, the
judge reasoned, that if Jefferson waived its rights, Whittenton
did not have any either. Whittenton argues that the evidence
does not support a conclusion that Jefferson agreed to the fire
watches. It claims that the fire watches were involuntarily
imposed, and Jefferson was ordered to pay for them. According
to Whittenton, any interpretation to the contrary rests on
erroneous findings of fact.
Put simply, the evidence at trial, and the undisputed facts
in the summary judgment record, belie Whittenton's contention.
There is no evidence that Murphy, on behalf of Jefferson, was
coerced as Whittenton claims. It may very well be that given
the dire condition of the buildings and the threat they posed to
public safety, had Murphy opposed a fire watch one would have
been imposed without his consent. However, that is not the case
here. To the contrary, Murphy testified that he did not object
17 to the imposition of a fire watch and further acknowledged that
he agreed to pay for them.
Lastly, Whittenton claims that the judge erred by not
directly addressing the question whether G. L. c. 148, § 5, is
constitutional. Whittenton argues that the statue violates the
Fourteenth Amendment to the United States Constitution because
it does not provide adequate notice to a property owner and has
no definitive right of appeal. As an initial matter, we do not
believe that the judge was required to reach this issue. The
judge, correctly in our view, determined that because Jefferson
consented to the fire watches and agreed to pay for them, any
due process right to a hearing was waived. Moreover, we agree
with the judge that Whittenton's status as the holder of a
mortgage did not give rise to an independent right to challenge
the constitutionality of G. L. c. 148, § 5. That said, it bears
noting that Whittenton (like Jefferson) did, in fact have a
statutory right to challenge the imposition and cost of the fire
watches at the redemption proceeding, a right of which it has
fully (and mostly successfully) availed itself. As the Attorney
General observes, Whittenton was given notice of the foreclosure
petition and proceeded to answer and object to it. During the
ensuing litigation, Whittington not only challenged the cost of
the fire watches but prevailed in part by obtaining an order for
redemption that reduced the charges significantly.
18 In any event, although we need not reach the issue, we
agree with the position advanced by the Attorney General in her
amicus brief regarding Whittenton's claim. Over fifty years
ago, in Ditson, 4 Mass. App. Ct. at 326-327, we held that the
notice provided in the abatement order under the statute was
sufficient to survive due process scrutiny. Nothing in the
development of our jurisprudence over the past half century
persuades us that our holding in Ditson should be modified, let
alone overruled.
3. Application of Tyler. The parties dispute the extent
to which the United States Supreme Court's recent decision in
Tyler bears on the outcome of this case. In Tyler, 598 U.S. at
647-648, the Court held that when a State forecloses on private
property to satisfy outstanding tax obligations, any proceeds
from the sale of the property in excess of the tax, interest,
and collection fees constitute a taking that must be returned to
the former owner. As noted, here the judge determined that the
takings issue was not ripe and that it should be decided at a
later point. We agree. In the circumstances presented we
decline to reach the question whether Tyler applies and, if so,
to what extent, and remand the case to the Land Court for the
judge to consider the issue.
19 At that time, the judge may also address the applicability of
the changes to G. L. c. 60. See St. 2024, c. 140, §§ 80-99,
250.
The "Order on Motion for Entry of Finding" is vacated, and the case is remanded for further proceedings consistent with this memorandum and order.
By the Court (Vuono, Meade & Hand, JJ.14),
Clerk
Entered: March 4, 2025.
14 The panelists are listed in order of seniority.