2020 Mass. App. Div. 79

May 31, 2019 - May 21, 2020

Appellate Division Northern District

Court Below: District Court, Newburyport Division

Present: Coven, P.J., Crane & Nestor, JJ.

Thomas W. McEnaney and Nicole J. Costanzo for the plaintiff.

Gracemarie Tomaselli and Joyce Tomaselli, pro se.

NESTOR, J. Gracemarie Tomaselli and Joyce Tomaselli ("Tomasellis") believed that they did not owe the town of Salisbury sewer betterment and user fees on their property in Salisbury. They refused to pay. A legal odyssey beginning in 1997 culminated in a decision in Newburyport District Court on June 12, 2018, ordering possession of the property to the town of Salisbury.

The original case disputing the fees was brought in Superior Court in 1997 by the Tomaselli sisters. Salisbury prevailed. That decision was appealed. The Appeals Court affirmed that decision. The Tomasellis then sought an abatement with Salisbury's Board of Assessors in 2001. The request was denied. No appeal was taken.

The Tomasellis then filed a subsequent request for abatement by the Board of Assessors in 2005. That subsequent request was also denied. The Tomasellis appealed that decision to the Appellate Tax Board.

The Appellate Tax Board ruled in favor of Salisbury. The Tomasellis then appealed that ruling to the Appeals Court. The Appeals Court upheld the ruling of the Appellate Tax Board in favor of Salisbury. The Tomaselli sisters then sought further appellate review before the Supreme Judicial Court. That request was denied.

In 2008, the Tomasellis filed a federal suit alleging civil rights violations, RICO, and numerous state law claims against Salisbury, several town officials, and various lawyers involved in the case. Motions to dismiss were allowed in the United States District Court. The Tomasellis appealed to the First Circuit Court of Appeals. The ruling on the various motions to dismiss was affirmed. The Tomasellis then sought certiorari review before the United States Supreme Court. That request for review was denied.

Salisbury subsequently initiated a tax taking of the Tomasellis' property and thereafter commenced a tax foreclosure action in the Land Court under G.L. c. 60, § 65. Salisbury was awarded a judgment by the Land Court on February 19, 2015, foreclosing the defendants' rights of redemption. They appealed to the Appeals Court. The Tomasellis failed to prosecute the appeal timely, and the Appeals Court ordered the appeal dismissed on November 22, 2017. Subsequent motions for reconsideration were denied. The Appeals Court ruled on February 8, 2018, "This matter

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is closed. No further action to be taken on any motions or status reports filed on this docket." Finally, the Appeals Court on May 18, 2018 denied the Tomasellis' motion to file a late appeal from the Land Court's denial, on May 18, 2017, of their motion to vacate the judgment under Mass. R. Civ. P. 60(b).

A District Court trial was held on May 31, 2018, on the complaint in summary process brought by Salisbury for possession of the property. The Tomasellis yet again sought to raise the same issue of taxes and fees being unfairly and wrongfully assessed. The Tomasellis did not, however, dispute the Land Court's judgment or the dismissal of their appeal.

The summary process trial consisted of the Tomasellis again asserting that all previous rulings were in error in finding for Salisbury and that the assessment fees were unfair and wrongfully assessed. Based on that, they argued that the judgment in the tax lien case vesting title in Salisbury was improper.

The exhibits admitted into evidence included the recorded tax lien judgment from the Land Court, the Appeals Court docket showing that the Tomasellis' appeal from that judgment had been dismissed and the "matter is closed," and an Appeals Court notice of docket entry that the Court had denied the Tomasellis' motion to appeal late from the Land Court's denial of their motion to vacate the judgment. [Note 2]

The District Court judge found in a written decision, "While continuing to dispute the Town's position as to unpaid real estate taxes and to allege ineffective assistance of counsel in their appeal, the defendants do not dispute the existence of the Land Court's judgment or the dismissal of the appeal. Their remedies relating to the Locus have been exhausted. The Town owns the Locus and is entitled to possession."

General Laws c. 60, § 65 provides that the holder of title to land acquired by a tax taking "may bring a petition in the land court for the foreclosure of all rights of redemption." General Laws c. 60, § 64 provides that the "land court shall have exclusive jurisdiction of the foreclosure of all rights of redemption from titles conveyed by . . . a taking of land for taxes," and that the "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." See City of Worcester v. AME Realty Corp., 77 Mass. App. Ct. 64 (2010). General Laws c. 239 provides for eviction by summary process. Section 1 provides that "if a tax title has been foreclosed by decree of the land court, . . . the person entitled to the land . . . may recover possession thereof under this chapter." See Property Acquisition Group, LLC v. Ivester, 95 Mass. App. Ct. 170 (2019); Singh v. 207-211 Main St. LLC, 78 Mass. App. Ct. 901 (2010).

Based on the evidence presented at trial, the trial judge properly entered judgment in favor of Salisbury.

Judgment affirmed.


[Note 1] Joyce Tomaselli.

[Note 2] In the Appellate Division, the town of Salisbury moved for leave to file a supplemental appendix containing pleadings, exhibits, and transcribed hearings in the trial court. Salisbury also moved to strike portions of the Tomasellis' appendix that were not part of the record in the trial court, which the Tomasellis opposed. For their part, the Tomasellis moved for leave to file missing pages from a portion of their appendix, to file their reply brief late, and to include a table of authorities in their reply brief. We allow the town's and the Tomasellis' motions.