LHPNJ LLC v. JEFFERSON DEVELOPMENT PARTNERS LLC & Another.

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

charges.

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.

20