MISC 11-445315

September 28, 2011


Piper, J.


In response to the Order to Show Cause, issued by this court (Piper, J.) on August 23, 2011, plaintiff Jeanne Golrick ("Golrick"), defendant/plaintiff-in-counterclaim Richard Conley ("Conley") and defendant-in-counterclaim Mary Jackson ("Jackson") each filed papers with the court arguing why this case should not be dismissed as moot. Having reviewed the papers filed, the court is not convinced an actual justiciable controversy remains before the court, and accordingly concludes that this case must be dismissed.

This case is one in which the plaintiff sought judgment that she, and not defendants Conley and Farrick, holds title to parcels of improved land in the Town of Montague. Conley, represented by counsel, has answered and counterclaimed, asserting a right to title to some of the land claimed by Golrick. Farrick has not answered or appeared. Jackson claims rights to the land involved in this action (and more) under a deed from Golrick recently recorded, and appears to have succeeded to whatever rights Golrick had in the contested land.

The land over which the parties are in dispute in this Miscellaneous case are but part of a larger tract which is the subject of long-standing delinquencies in municipal real estate tax payments. The tax parcels have for some time been taken by the municipality for unpaid taxes, and a suit by the Town to foreclose the right of redemption, after due proceedings, now has gone to judgment. It was this reality that led the court to issue the Order to Show Cause.

On August 18, 2011, the court heard arguments in Conley's motion to intervene in the case brought by the Town of Montague to foreclose the rights of redemption under the tax taking of the larger property that includes the locus involved in this case. See Land Court Tax Lien Case No. 09 TL 139170, Montague v. Golrick ("tax lien case"). After argument, the court denied the motion to intervene, setting its reasoning on the record from the bench. [Note 1] The court did not reach the question whether Conley was a parry entitled to redeem under G.L. c. 60, § 62. Instead, the court ruled that Conley's request to intervene, or to answer and tender redemption, came too late. Conley was duly served and named as an interested party at the commencement of this tax lien case; the court's docket for the tax lien case reflects that Conley was served on December 15, 2009 by certified mail, a fact he does not contradict. Despite his awareness of the tax lien case, Conley did not attempt to participate in it during its pendency, and failed to take part in critical events in the tax foreclosure litigation, including numerous evidentiary and non-evidentiary hearings and the entry of a finding setting redemption terms, the time for which had expired.

At the same hearing, the court heard argument on the Town of Montague's Motion for Judgment in the tax lien case. After argument, the court ruled that judgment was to enter, again setting its reasoning on the record from the bench. [Note 2] The court ruled that judgment should enter because on June 2, 2011, a finding entered by agreement of all parties. The finding required redemption by August 1, 2011, which period had expired. That finding, which followed an evidentiary hearing held by the court in August of 2010, was agreed to in court on May 26, 2011; that finding constituted an agreed resolution of the long-disputed tax redemption obligations and terms. At the August 18, 2011 hearing, the court when on to rule that, even had Golrick appeared before the court ready to redeem in full (she did not), Golrick was not a person entitled to redeem under G.L. c. 60, § 62, because she had conveyed all right, title and interest she had in the locus to Jackson by deed dated July 22, 2011 and recorded in the Franklin County Registry of Deeds at Book 6047, Page 236.

The issue of Golrick's transfer of title to the tax locus was one that, by August 18, 2011, the court already had confronted. On July 29, 2011, this court issued in the Miscellaneous case a Temporary Restraining Order enjoining Golrick from disposing of any of the proceeds she received from the sale of the locus. On August 3, 2011, the court conducted a hearing on Conley's application for preliminary injunction, at which Golrick appeared; she argued in open court that Conley would have to pursue his claims in this case (Land Court Misc. Case No. 11 MISC 445315) not against Golrick, but rather against the current owner, Jackson, who took title with actual knowledge of both this case, and the tax lien case. It developed at the injunction hearing that Golrick had sold the tax lien locus to Jackson without receiving any funds; Golrick took back an unsecured promissory note from Jackson for the entire purchase price recited in the deed.

Conley successfully added Jackson as a third-parry defendant in this Miscellaneous case on August 18, 2011. For her part, Jackson, the record owner of the property on August 18, 2011, did not move to intervene in the tax lien case, or to redeem the tax title to the property. [Note 3] Since that hearing, Jackson has not moved to intervene in the tax lien case, nor made any firm offer to redeem.

Judgment foreclosing the right of redemption entered in the tax lien case on August 18, 2011. "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 as provided in this chapter." G.L. c. 60, § 64. "This provision makes clear that interests in the land of one claiming through the record owner, such as `mortgagees, lienors, attaching creditors'... are terminated by the [judgment]." Sandwich v. Quirk, 409 Mass. 380 , 384 (1991). As a result of the August 18, 2011 judgment, none of the parties to this Miscellaneous case have any title to the locus. The dispute underlying this Miscellaneous case, over whether Conley is entitled to specific performance of an alleged agreement between Conley and Golrick, described in an undated "letter of intent," has become a hypothetical dispute, as the Town is the sole owner of the tax locus under the judgment of foreclosure of the right of redemption entered in the tax lien case. That judgment now has become final, no appeal having been noticed within the prescribed time. The judgment of foreclosure operates to establish the absolute title to the tax locus in the municipality as against all persons, including all of the parties involved in the Miscellaneous case. The court cannot decide abstract questions, and will not issue an advisory opinion, or adjudicate a case where no "actual controversy has arisen" or remains to be decided. See G.L. c. 231A, § 1.

Conley, Golrick, and Jackson all object to dismissal of this case. They all believe that the court should determine what rights Conley has in the locus because any one of the three might successfully petition the Land Court to vacate the judgment of foreclosure, and to redeem the tax title. While certainly dismissal of this case would be without prejudice to the rights, whatever they may be, of any party to seek a vacation of the judgment in the tax lien case, the mere unfounded possibility that this might happen is not sufficient to keep this Miscellaneous case alive. There is no right to vacation of a judgment of foreclosure. Under G.L. c. 60, § 69, "If no innocent purchaser for value has acquired an interest," then a judgment of foreclosure "may be vacated in the discretion of the court upon petition filed by the petitioner at any time." And the Town of Montague has indicated it will oppose any petition to vacate, should one be filed.

Citing to the recent unpublished decision of the Appeals Court in Dover v. Goucher, No. 10-P-1312, slip op. (Mass. App. Ct. Aug. 10, 2011), Conley argues that judicial efficiency favors making a declaration of Conley's rights prior to any proceeding to vacate judgment in the tax lien case because the resolution of that issue would be a predicate to determining his right to redeem. The court does not share this view. In Goucher, rather than decide whether a purchase and sale agreement creates in the contract buyer a sufficient interest in the land to confer a right of redemption in a tax title foreclosure case, the Appeals Court remanded the case to the Land Court because, "there are a number of alternative bases upon which the recorder could have used her discretion to deny the motion to vacate" in addition to a finding that the petitioner lacked standing under the purchase and sale agreement. Id. at *2. Here, as in Goucher, the issue of Conley's alleged contract would be just one of several issues a judge or the recorder of the Land Court would consider in determining whether to exercise discretion to allow a petition to vacate. This is not a case where it is at all clear that the now-final foreclosure judgment would be reopened even should either Jackson or Conley demonstrate their standing to seek vacation. There has been no demonstration of the financial ability and willingness of either of these parties to make redemption in the amount required by the finding, to which now must be added additional accruals. It is obvious that the question of Conley's rights to a portion of the tax locus would require considerable time, effort, and resources on the part of the parties and the court to bring to final judgment, one way or the other. At the end of that exercise, moreover, were Conley to prevail, the redemption of the tax title required to vest in him title would be only as to a smaller parcel within the overall tax lien locus. And that smaller parcel has not been separately assessed by the Town. The redemption of only a piece of a larger parcel taken and foreclosed upon for unpaid taxes would present further complications for the parties to this litigation, the Town, and the court. The suggestion by the parties who oppose dismissal of this Miscellaneous case, that its resolution would be straightforward and efficient, is belied by reality.

The court is convinced that this action has become moot, and no longer presents any live controversy meriting judicial resolution. Given the final judgment foreclosing the tax title, and establishing title absolutely in the Town, there is no good reason for this case to proceed. The interests of justice would be ill-served by allowing this case to continue. Should the title to the parcel change, and any of the parties to this case, by arrangement with the Town or otherwise, be restored to ownership, the appropriate parties may file an action similar to this one in this court, or in another court of competent jurisdiction.

It is

ORDERED that this case, Land Court Miscellaneous Case No. 11 MISC 445315 (GHP), is in its entirety DISMISSED; this dismissal is without prejudice to initiation of a similar action in this court (or another court of competent jurisdiction), but only in the specific circumstances described in this Order.

So Ordered.

By the Court.


[Note 1] The court's rulings are reflected in an entry on this case's docket, which reads in relevant part:

(1) Motion to Withdraw of Attorneys Walsh and Nolan ALLOWED with Assent of Defendant Golrick, Who Continues in this Case Pro Se. (2) Motion to Intervene of Mr. Conley DENIED; Assuming Without Deciding that, Should Mr. Conley Prevail on his Counterclaim Seeking Title (to a Portion of the Tax Title Locus) in Related Land Court Miscellaneous Case, 11 MISC 445315 (GHP), He Would Be a Party Entitled to Redeem Under G.L. c. 60, § 62, see Town of Dover v. Goucher, No. 10-P-1312, slip op. (Mass. App. Ct. Aug. 10, 2011) (Memo and Order Pursuant to Rule 1:28), Request for Intervention (or, In Alternative, to Vacate Default and File Late Answer) Comes Too Late. Mr. Conley Was Duly Served and Named as Interested Party at Commencement of this Case in 2009; Despite Actual Notice of Pendency of this Action, Mr. Conley Has Made No Attempt to Participate. Mr. Conley Not Only Has Been Fully aware of this Action, He Also Corresponded with Town's Counsel, Who at Earlier Stages of this Case Advised Mr. Conley to Move to Lift Default and Attend Prior Hearings, and that Town Would Not Oppose Such a Request. Mr. Conley Failed to Take Part in Critical Events in this Litigation, Including Numerous Evidentiary and Non-Evidentiary Hearings. Based on Prior Proceedings, a Finding Entered, Setting Terms for Redemption, and Time for Redemption Has Expired. This Case Has Been Fully Litigated at Great Expense to Current Parties, and it Would Be Prejudicial to Them, and Counter to the Interests of Justice to Allow Mr. Conley to Answer at This Late Juncture. Court is Unable to Find Any Excusable Neglect for Mr. Conley's Failure to Answer or Appear Timely, or Mr. Conley's Failure, At Any Seasonable Time, to Seek Leave to Enter Case Late.

[Note 2] The court's rulings are reflected in an entry on this case's docket, which reads in relevant part:

Motion for Judgment ALLOWED. An Assented-to Finding Entered June 2, 2011 Requiring Redemption by August 1, 2011. The Time for Redemption Has Expired. Even If Court Were Persuaded that Ms. Golrick Stood Willing and Able to Redeem, Something Which Is Not at All Shown, Ms. Golrick Is Not Legally Entitled to Redeem Because, Pursuant to the Deed Recorded July 27, 2011, Ms. Golrick Conveyed to a Third Party All Her Title in Locus, and No Longer Is a "person having an interest in" the Land at Issue, as Required by G.L. c. 60, § 62. Judgment to Enter.

[Note 3] Ms. Jackson evidently was present in the gallery for the August 18, 2011 hearing in Boston.