Vigorito v. City of Chelsea, 18-P-483

• Court: Appeals Court of Massachusetts
• Writing for the Court: AGNES, J.
• Citation: 124 N.E.3d 699,95 Mass.App.Ct. 272
• Parties: Rocco VIGORITO v. CITY OF CHELSEA.
• Docket Number: No. 18-P-483,18-P-483
• Decision Date: 09 May 2019

95 Mass.App.Ct. 272

124 N.E.3d 699

Rocco VIGORITO

v.CITY OF CHELSEA.

No. 18-P-483

Appeals Court of Massachusetts, Suffolk..

Argued February 8, 2019

Decided May 9, 2019

Peter G. Calabrese, Boston, for the plaintiff.

Peter A. Brown (Andrew G. Fanno also present) for the defendant.

Present: Green, C.J., Agnes, & Desmond, JJ.

AGNES, J.

This appeal arises out of actions taken by the defendant, the city of Chelsea (city), to order the demolition of a dangerous and unsafe building. General Laws c. 143, § 6, requires local building inspectors to inspect any unsafe structure that is reported to them or of which they become aware, and to notify property owners of steps they must take "to remove [the structure] or make it safe." If an owner fails to respond to proper notice within the required timeframe, the municipality is authorized to demolish the unsafe structure. G. L. c. 143, §§ 7 & 9.¹

In the case before us, the plaintiff, Rocco Vigorito, to whom the relevant property had been sold after demolition had been ordered, appeals from a Superior Court judgment entered after the allowance of the city's motion to dismiss under Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), and the denial of Vigorito's cross motion for leave to file a supplemental verified complaint. For the following reasons, we affirm.

Background. The structure involved in this case is an abandoned and deteriorating former gas station located at 553-A Washington Avenue, Chelsea. On September 17, 2015, the city issued an order to demolish or make safe, pursuant to G. L. c. 143, § 6, to seven "Owner(s)/Potential Interested Parties" (the estate), the then-owners of the property.² No notice was sent to Vigorito, who did not have an ownership interest in the property at that time. Approximately nine months later, on or around June 9, 2016, the estate entered into a purchase and sale agreement with Vigorito for the conveyance of the property, including the former gas station. On August 4, 2016, the estate conveyed the property to Vigorito by deed, which was recorded in the Suffolk Registry of Deeds on August 8.

Meanwhile, on or about August 8, 2016, the estate brought an action to enjoin the city's demolition of the structure, believing it would interfere with the impending sale to Vigorito (who was not a party to that action). That action was dismissed with prejudice by stipulation on or around August 15. On August 18, 2016, the city served Vigorito with a copy of the September 2015 notice to demolish.

Vigorito filed this action in Superior Court on August 22, 2016.³ He also filed a motion for an ex parte temporary restraining order on August 22 and an emergency motion for injunctive relief on August 23. Both motions were denied following a hearing on August 24, and the city demolished the structure the following day. Vigorito took no additional action. Nearly eleven months later, on July 11, 2017, the city filed a motion to dismiss for failure to state a claim upon which relief could be granted, arguing that Vigorito's claims were rendered moot with the demolition of the structure.⁴ Vigorito then filed a cross motion for leave to file a supplemental verified complaint on July 14, 2017, adding new claims for relief including, for the first time, a claim for monetary relief. Following a hearing on September 28, 2017, the judge allowed the city's motion to dismiss, denied Vigorito's motion for leave to file a supplemental verified complaint, and dismissed his verified complaint on October 4, 2017.

Discussion. On appeal, Vigorito argues that the judge erred in dismissing his verified complaint. In reviewing a decision dismissing a complaint under rule 12 (b) (6), we accept all allegations as true, and draw all reasonable inferences in the plaintiff's favor. See, e.g., Blank v. Chelmsford Ob/Gyn, P.C., 420 Mass. 404, 407, 649 N.E.2d 1102 (1995). To survive a motion to dismiss, the factual allegations must plausibly suggest an entitlement to relief. See Iannacchino v. Ford Motor Co., 451 Mass. 623, 636, 888 N.E.2d 879 (2008), citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

Nothing in the controlling statutory framework requires the city to re-serve subsequent property owners with an order of demolition. The provisions of G. L. c. 139 and c. 143 establish the predeprivation and postdeprivation process required in the condemnation and demolition of a building. See Gallant v. Fitchburg, 739 F.Supp.2d 39, 41-42 (D. Mass. 2010) (describing statutory framework under G. L. c. 143). Section 10 of G. L. c. 143, allows an owner aggrieved by an order to remove a dangerous structure to obtain judicial review of the order. See G. L. c. 139, § 2. Under § 2, "[t]he owner must commence a civil action in superior court within three days after the service of the challenged order." South Commons Condominium Ass'n v. Springfield, 967 F.Supp.2d 457, 461 (D. Mass. 2013). Under § 2, the owner is entitled to a jury trial and if the order of demolition is annulled, the owner is entitled to "recover from the town his damages, if any, and costs." G. L. c. 139, § 2.⁵ Here, the estate, when served with the city's demolition order in September 2015, did not challenge the order within the timeframe set forth in § 2.^{6 ,7}

There is an additional reason not to disturb the judgment.

"[L]itigation is considered moot when the party who claimed to be aggrieved ceases to have a personal stake in its outcome." Blake v. Massachusetts Parole Bd., 369 Mass. 701, 703, 341 N.E.2d 902 (1976). Each of the counts within the verified complaint "is directed solely to the prevention of the Defendant's demotion [sic] of Plaintiff's building." Vigorito did not seek further relief until almost eleven months after the demolition when he filed his motion for leave to file a supplemental verified complaint. Thus, this case is moot because the structure at issue has been demolished.

Finally, Vigorito argues that the judge erred in denying his motion to file a supplemental verified complaint. We review such determinations for an abuse of discretion and "whether adequate reason for the denial ... is apparent in the record."

Castellucci v. United States Fid. & Guar. Co., 372 Mass. 288, 290, 361 N.E.2d 1264 (1977). Here, the record shows that Vigorito waited to file his motion until three days after the city filed its motion to dismiss, having made no effort otherwise to resolve the matter during the intervening months and providing no sufficient reason for the undue delay.⁸ See DiVenuti v. Reardon, 37 Mass. App. Ct. 73, 77, 637 N.E.2d 234 (1994) ("Among the good reasons, however, for which a motion to amend may be denied are that no justification for the lateness of the motion is apparent [beyond counsel for the moving party having had a late dawning idea] and that one or more of the nonmoving parties would be caught off balance by the proffered amendment"). The judge, in denying Vigorito's motion, reasoned that, during the ensuing months following the denial of injunctive relief and the subsequent demolition of the building, the plaintiff failed to prosecute his case in any manner. In these circumstances, the judge did not abuse her discretion in denying Vigorito's motion for leave to file a supplemental complaint.⁹

Judgment affirmed.

1 General Laws c. 143, § 10, in conjunction with G. L. c. 139, § 2, provide remedies for an aggrieved owner who may seek judicial review in the Superior Court, including the right to a trial by jury. If review is sought in a timely manner, the jury may affirm, annul, or alter the order of demolition. If the order is annulled, the jury may award monetary damages and costs to the aggrieved party. G. L. c. 139, § 2, and G. L. c. 143, § 10.

2 The city subsequently issued, on October 9, 2015, a board of survey report to the same seven parties, specifically enumerating the physical deficiencies of the structure.

3 Vigorito's verified complaint contained four counts and sought relief "annulling any and all prior orders, notices, and findings relied on by [the city] in pursuing demolition of the structure at the Property ... [and] enjoining [the City] from taking any action consistent with demolition of the structure at the Property for the duration of this action." It did not seek monetary damages.

4 Although we believe that the Superior Court did not have jurisdiction to entertain Vigorito's complaint after the structure had been demolished and the controversy had consequently become moot, we nonetheless choose to reach certain issues that have been fully briefed and...