US v. 59.88 Acres of Land

• Decision Date: 04 April 1990
• Docket Number: Civ. A. No. 73-1751-C. Tract No. 31E-6104.
• Citation: 734 F. Supp. 555
• Parties: UNITED STATES of America, Plaintiff, v. 59.88 ACRES OF LAND, MORE OR LESS, SITUATED IN the TOWNS OF EASTHAM, TRURO, AND WELLFLEET, COUNTY OF BARNSTABLE, COMMONWEALTH OF MASSACHUSETTS, Unknown Owners, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

734 F. Supp. 555

UNITED STATES of America, Plaintiff, v. 59.88 ACRES OF LAND, MORE OR LESS, SITUATED IN the TOWNS OF EASTHAM, TRURO, AND WELLFLEET, COUNTY OF BARNSTABLE, COMMONWEALTH OF MASSACHUSETTS, Unknown Owners, et al., Defendants.

Civ. A. No. 73-1751-C. Tract No. 31E-6104.

United States District Court, D. Massachusetts.

April 4, 1990.

Asst. U.S. Atty. Frank Libby, James R. Wilson, Hyannis, Mass., John Hallisey, Orleans, Mass., for plaintiff.

Henry D. Akin, Dallas, Tex., for Malcolm Bowers.

James E. Coppola, Lynn, Mass., for Truro Tax Collector.

Lawrence O. Spaulding, Orleans, Mass., for Newcomb defendants.

MEMORANDUM

CAFFREY, Senior District Judge.

This action involves the condemnation of a parcel of land, identified as Tract 31E-6104 ("the property"), located in Eastham, Barnstable County, Massachusetts. After filing a complaint in condemnation of the property on June 3, 1973, the United States attempted to discover and notify all parties having an interest in the property of the condemnation proceedings. On April 8, 1975, the United States filed a motion for summary judgment which was unopposed. The Court granted summary judgment on April 9, 1975, and ruled that just compensation for the property was $19,200. Upon deposit of that sum into the Registry of the Court, the Court entered final judgment of condemnation on May 1, 1975.

This action is now before this Court on motions to vacate the summary judgment and the final judgment of condemnation brought by numerous individuals ("the petitioners") who each claim an interest in the property. In support of their motions to vacate, several of the petitioners argue that they were denied due process under the fifth amendment because the United States did not provide them with notice of the condemnation proceedings and final judgment of condemnation was thus entered against their property at a hearing at which they were not present or represented. Because the circumstances and history of the petitioners differ, thus requiring separate discussion, those petitioners represented by James R. Wilson will be referred to as "the Wilson petitioners,"¹ and those petitioners represented by John D. Hallisey will be referred to as "the Hallisey petitioners,"² except where a petitioner's claim warrants individual discussion.

I. Facts

Tract 31E-6104, the property, is a 4.8 parcel of land located in Eastham, Barnstable County and falls within the Cape Cod National Seashore. In 1963, the National Park Service contemplated acquiring the property for the Seashore and ordered a title search of that tract. The usual practice of the National Park Service, with respect to discovering the names and addresses of landowners, is to use the title information contained in the binder supplied by the Chicago Title Insurance Company and to inquire at the town hall and other public offices in the town where the land is located. The title search revealed that the tract was owned by Freeman C. Hatch, Jr., Edna Ullman, Mattie P. Hatch, James P. Hatch, and Susan F. Hatch, who were all deceased at the time. The title examination also revealed the possible claims of Blanche C. McHenry, Roscoe P. Hatch, Nathena N. Cole, and Mignon J. Loomis.

Several of the Wilson Petitioners, namely John A. Ullman, Freeman C. Hatch, III, Harrison F. Ullman, Elisabeth V. Welker, and Mary Lou Levers, are the heirs of Edna H. Ullman and Freeman C. Hatch, Jr. The identities of John A. Ullman and his relatives were not discovered by the title examination. Although the government's records do not reveal with certainty the means by which the identities of these petitioners came to the attention of the United States, they were probably discovered because these petitioners were paying real estate taxes on the property. Except for John Ullman, the addresses of these petitioners were unknown to the United States. Thus, the United States only personally served John A. Ullman with notice of the condemnation proceedings. John A. Ullman directed the United States to Attorney Paul Henson,³ who ultimately came to represent all of the Wilson petitioners, except Philip Schwind.

Although the United States did discover the identities of most of the Wilson petitioners, the United States' title examination and other efforts did not reveal the identities of Philip Schwind, of the Hallisey petitioners, or of any other person claiming an interest in the property.

The United States filed its complaint in condemnation on June 5, 1973. On May 7, 1974 the United States filed a certificate for service by publication identifying landowners who could not be personally served because the United States after inquiry could not ascertain their addresses. Thus, on June 19, June 26, and July 3, 1974, notice of the pendency of these condemnation proceedings was published in the Cape Cod Standard Times, a local newspaper circulated in Barnstable County. This notice was addressed as follows: "To: The following named persons or their spouses, heirs, representatives, devisees, distributees, creditors or assigns and UNKNOWN OWNERS." The notice then listed the names of individuals found within the title binder issued by Chicago Title Insurance Company during the title examination.⁴ The notice next described the property, Tract 31-6104:

EASTHAM TRACT 31-6104

Beginning at a point, said point is the centerline of an old woods road with the south line of land now or formerly belonging to Owners Unknown;

Thence, Northeasterly along said south line of land to the north east corner of said land, said corner is a point at the low-water line of the Atlantic Ocean;

Thence, Southeasterly, bounded by the Atlantic Ocean, to the southeast corner of said land, said corner is also the northeast corner of land now or formerly owned by Martha F. Ells;

Thence, Southwesterly along the north line of land now or formerly owned by Martha F. Ells to a point, said point is the intersection of said north line with the centerline of an old woods road;

Thence, generally Northwesterly along the centerline of said old woods road to the point of beginning.

Containing 4.80 acres, more or less.

The publication gave notice of the condemnation proceedings and of the fact that the Court would proceed to establish just compensation for condemnation of the property.

As to Tract 31-6104, no notices of appearance or answers to the United States' condemnation complaint were filed. On April 8, 1975, the United States filed its motion for summary judgment. The Court granted summary judgment for the United States on April 9, 1975 and determined just compensation to be $19,200.00. After that sum was deposited into the Registry of the Court on April 29, 1975, the Court entered final judgment of condemnation in favor of the United States on May 1, 1975. These funds remain on deposit.

By their various motions, the Wilson petitioners and the Hallisey petitioners now seek to vacate the final judgment of condemnation.

II. The Wilson Petitioners

The petitioners represented by James Wilson include Freeman C. Hatch, III, John A. Ullman, Harrison F. Ullman, Elisabeth U. Welker, Mary Lou S. Levers and Philip Schwind. Each of the Wilson petitioners claim an interest by descent in the property. The Wilson petitioners filed their motion to vacate on April 15, 1981, approximately eight years after the condemnation proceedings were commenced and six years after entry of final judgment. All of the Wilson Petitioners, except Philip Schwind, were first represented in this case by Attorney Paul P. Henson, Jr. of Orleans, Massachusetts, and do not dispute having received actual notice, through counsel, of the condemnation proceedings.⁵ These petitioners seek to vacate the final judgment of condemnation on the sole ground that "their interests, with the exception of Philip Schwind, were being represented by Attorney Paul P. Henson, late of Orleans, Massachusetts, who was ill and eventually died at the time the judgment was entered by the Court."

Rule 60(b) of the Federal Rules of Civil Procedure provides the means by which one may obtain relief from judgment:

On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; ... (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken.

Fed.R.Civ.P. 60(b). Although the Wilson petitioners do not refer to Rule 60(b) in their motion, at the hearing on this motion held on November 21, 1989, the Wilson petitioners argued that they are pursuing relief from the judgment under subsection (6) of Rule 60(b).⁶ Presumably, their argument is that they should be relieved from operation of the judgment because their attorney, Attorney Henson, failed to adequately represent their interests due to a serious illness which eventually led to his death at approximately the same time that final judgment was entered. In our system of representative litigation, however, the petitioners are bound by the acts and omissions of their lawyer. Link v. Wabash Railroad Co., 370 U.S. 626, 634, 82 S.Ct. 1386, 1390, 8 L.Ed.2d 734 (1962); Ojeda-Toro v. Rivera-Mendez, 853 F.2d 25, 30 (1st Cir.1988). The petitioners voluntarily chose Attorney Henson as their representative in this action, and they cannot now avoid the consequences of the acts or omissions of this freely selected agent. Link, 370 U.S. at 633, 82 S.Ct. at 1390; Ojeda-Toro at 30.

This Court would generally be sympathetic towards a party who found itself bound by a judgment entered after a hearing at which the party was not represented because its attorney was seriously ill. Yet, although this Court agrees that serious illness and death would ordinarily constitute an...