CITY OF MARLBOROUGH v. JOSEPH F. DRISCOLL & 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

22-P-1084

CITY OF MARLBOROUGH

vs.

JOSEPH F. DRISCOLL & another. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The appellants, Joseph and Judith Driscoll, 2 appeal from two

final judgments 3 entered by a judge of the Land Court who ruled

that all rights of redemption as to three parcels of land,

denominated Parcels C, D, and E in the Middlesex Registry of

Deeds, Plan Number 1348 of 1951, were forever foreclosed and

1Judith A. Driscoll. The other defendants involved at
earlier stages in this litigation are no longer parties and are
not relevant to this appeal.

2Because many of the parties share a surname, we will refer
to them by their first names, or collectively by their last
names, to avoid confusion. Joseph is Judith's husband.

3The appeals were consolidated for briefing and argument in
this court.
barred. Joseph also appeals from the denial of his motion to

enlarge time to redeem.

The Driscolls' house is located on Parcels C and E. The

Driscolls argue that the city of Marlborough's taking and

retention of the entirety of all three parcels, rather than

compensating them for the value above that amount should it

choose to use the property for a public purpose, or selling the

property and retaining only that amount and returning the

overage to those from whom it was taken, violates the takings

clause of the Fifth Amendment to the United States Constitution.

During the pendency of this appeal, the United States

Supreme Court issued its ruling in Tyler v. Hennepin County, 598

U.S. 631 (2023). Tyler held that under the just compensation

clause of the Fifth Amendment, when property is taken by a

governmental entity to settle a tax debt, if it is sold, the

amount above the tax debt must be returned to the taxpayer, or

if it is retained to be used for a public purpose, the taxpayer

must be compensated for the value above the tax debt. Id. at

639. Prior to that decision, this was the rule in thirty-six

States and the District of Columbia. Id. at 642. As a matter

of the constitutional right of the taxpayer, it is now the rule

throughout the United States, including here in the

Commonwealth.

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We conclude that at least Joseph has standing to contest

the taking with respect to Parcels C and D, and that the order

foreclosing his right of redemption must be vacated pursuant to

Tyler, 598 U.S. at 639. We further conclude that determining

whether either Judith or Joseph has standing to contest the tax

taking of Parcel E turns on factual questions that have not yet

been resolved, and that the judgment with respect to that

parcel, too, must be vacated. The case is remanded for further

proceedings as described below.

Background. This case involves three parcels of land in

the city of Marlborough (City), denominated Parcels C, D, and E

in the Middlesex Registry of Deeds, Plan Number 1348 of 1951. A

house was constructed on Parcel C in 1974, and Judith and her

children have lived there since 1976. The driveway to the house

is on Parcel E, and, in 1984, an addition to the house, which

included an in-law apartment, was built on Parcel E. After

that, Judith's parents, Dorothy and Andrew Santella, 4 moved into

the in-law apartment, where they lived until 2010. In 1989,

Joseph moved into the house as well.

In 2009, the City sought to foreclose a tax lien on the

three parcels. The land was taken by the City due to the

4 Both of the Santellas are now deceased. One of Judith's
sisters, Anne Marie Haynes, was appointed as the personal
representative of Dorothy's estate.

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alleged nonpayment of 2003 taxes with respect to Parcel E, and

2008 taxes with respect to Parcels C and D. Parcels C and D

were taken in December 2008. The instruments of taking alleged

unpaid taxes, interest, and incidental expenses and costs

totaling $6,193.26 for Parcel C and $232.90 for Parcel D.

Parcel E was taken in December 2004. The instrument of taking

alleged unpaid taxes, interest, and incidental expenses and

costs totaling $65.98 for Parcel E. Although initially the 2009

suit sought to foreclose the tax liens on all three parcels,

after the City concluded that Parcel E had different ownership

than Parcels C and D, the City amended its complaint to remove

Parcel E from the 2009 litigation, and commenced another action

in 2011 regarding only Parcel E.

Several of the defendants in the 2009 and 2011 litigation,

including Andrew, Dorothy, Joseph, and Judith, then became

involved in separate litigation, not involving the City, in the

Probate and Family Court and in the Superior Court, regarding

the ownership of the parcels at issue. In 2014, a judge of the

Probate and Family Court held that Parcels C and D were owned

jointly by Andrew, Dorothy, and Joseph, and voided a 1996 deed

purporting to transfer the property to Judith and others. In

another action in 2017, a judge of the Superior Court dismissed

Judith's claim of title to the property under the resulting

trust doctrine, holding that her claim was precluded. In 2010,

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Andrew and Dorothy brought a partition action in the Probate and

Family Court against Joseph regarding Parcels C and D, and, at

least at the time of argument in this case, that action was

still ongoing.

In 2020, the City moved to strike Judith's appearances and

answers in both the 2009 and 2011 actions, claiming that she had

no standing to assert a right to redeem any of the three

parcels. A first judge of the Land Court allowed the City's

motion on January 21, 2021, holding that Judith possessed "no

cognizable interest in the properties at issue in these cases

that would allow her to appear and be heard on the question of

their redemption." Judith filed a motion for reconsideration,

which the judge denied on June 7, 2021.

In the January 21, 2021 order, the first judge also held

that Joseph possessed some ownership interest in Parcels C and

D, and therefore could assert his right to redeem those parcels

in the 2009 litigation. On June 13, 2022, a second judge of the

Land Court found that Joseph could exercise his right of

redemption by paying the City $228,725.98, plus interest, legal

fees, and costs, by August 26, 2022. Joseph moved for

reconsideration of this finding and asked that the redemption

payment date be continued until final resolution of the

partition action pending in the Probate and Family Court. The

second Land Court judge denied Joseph's motion on August 12,

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2022. Joseph then moved to enlarge the time to redeem by ninety

days, but that motion was denied as well. Joseph did not

exercise his right of redemption and, on September 26, 2022,

upon the City's motion, the second Land Court judge entered

final judgment, stating that "all rights of redemption are

forever foreclosed and barred" as to Parcels C and D.

In the 2011 litigation, the City moved on April 13, 2022,

to strike Joseph's and other defendants' appearances and

answers. The second Land Court judge allowed the motion on June

13, 2022. Joseph filed a motion for reconsideration, which was

denied. On September 2, 2022, upon the City's motion, the

second judge entered final judgment as to Parcel E.

Both Joseph and Judith appealed both final judgments. We

have those appeals before us now.

Discussion. 1. Standing. a. Parcels C and D. i.

Judith. The Driscolls argue that Judith has an ownership

interest in Parcels C and D, pursuant to both a 1996 deed

(second 1996 deed) and a 1977 deed (April 1977 deed). We

disagree.

The first judge of the Land Court correctly held that

Judith is precluded from arguing that she holds title to Parcels

C and D. On March 28, 2011, the Santellas filed a complaint in

the Probate and Family Court against Judith and others, alleging

that by way of the second 1996 deed, Judith fraudulently

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conveyed title to the property to herself and others as trustees

of a realty trust. In 2014, a judge of the Probate and Family

Court ruled in that case that Dorothy and Andrew, title owners

of Parcels C and D under the April 1977 deed, validly conveyed

the parcels to themselves and Joseph in a first 1996 deed. The

judge of the Probate and Family Court then held that the second

1996 deed, which purported to convey the Santellas' and Joseph's

interests to Judith and others in the form of a trust, was

procured by misrepresentation or was fraudulently altered, and

thus voided that deed. A different panel of this court affirmed

that decision in an unpublished memorandum and order. To the

extent Judith relies on the second 1996 deed, because she

actually litigated the validity of the deed and lost, there was

a final judgment on the issue, and that determination was

essential to the judgment, the doctrine of issue preclusion

prevents her from raising the same issue again now. See Jarosz

v. Palmer, 436 Mass. 526, 530-531 (2002).

Judith again litigated the ownership of Parcels C and D in

2017, when she filed a complaint in the Superior Court to

establish a resulting trust against the Santellas. She relied

upon the April 1977 deed. The Superior Court judge dismissed

the case based on claim preclusion. Another panel of this court

affirmed in an unpublished memorandum and order, holding that in

the 2014 Probate and Family Court case Judith could have raised

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not only the issue of the second 1996 deed, but also her claim

of ownership under the April 1977 deed, or any other claim of

ownership. To the extent Judith claims title to the property

under the April 1977 deed, the issue is thus also barred by the

doctrine of issue preclusion.

We thus conclude that Judith is precluded from arguing on

the basis of the April 1977 deed, and the second 1996 deed, an

ownership interest in Parcels C and D. We therefore affirm the

judgment to the extent it concluded she has no standing to

assert a right to redeem those two parcels.

ii. Joseph. As discussed above, a judge of the Probate

and Family Court held in 2014 that Joseph has at least a partial

ownership interest in Parcels C and D pursuant to the first 1996

deed. The first Land Court judge noted this and concluded that

Joseph has standing to assert a right to redeem those two

parcels. We agree.

b. Parcel E. With regard to Parcel E, the Driscolls argue

that it was conveyed to Judith pursuant to another 1977 deed

(June 1977 deed) from Albert Sebastian and Robert Ricci, and

that she then conveyed the parcel to Andrew in 1991, who later

conveyed it to Andrew, Dorothy, and Joseph in the same first

1996 deed by which Andrew and Dorothy conveyed to them Parcels C

and D.

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The first Land Court judge held in a June 7, 2021 order

that Sebastian and Ricci could not have conveyed Parcel E to

Judith in June 1977, as the parcel was held by Truetta

Corporation (Truetta) at the time. The judge rejected Judith's

argument that Truetta had conveyed Parcel E to Sebastian and

Ricci in 1964, instead holding that the 1964 deed to which she

referred conveyed entirely different parcels.

However, the judge did not address the Driscolls' argument

that even if the 1964 deed did not convey Parcel E from Truetta

to Sebastian and Ricci, when Truetta was dissolved, the property

passed back to Truetta's owners, who were Sebastian and Ricci.

"[U]pon the dissolution of a corporation, all debts having been

paid and no receiver having been appointed, the property of a

dissolved corporation passes to its former shareholders."

Pagounis v. Pendleton, 52 Mass. App. Ct. 270, 276 (2001).

A document in the record appears to indicate that Truetta

dissolved in 1958, although there has been no finding of fact on

that issue. If that is true, the Driscolls' argument may have

merit. The equitable doctrine described in Pagounis begins

after a three-year winding up period. Pagounis, 52 Mass. App.

Ct. at 276 . If Truetta were dissolved in 1958, the winding up

period would have ended long before 1977, which might make the

June 1977 deed from Sebastian and Ricci to Judith valid, if the

equitable doctrine applied. Because no findings of fact have

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been made as to the dissolution of Truetta and what happened to

its property upon dissolution, we remand to the Land Court to

address the Driscolls' argument. The judge should make findings

as to whether the June 1977 deed was valid, whether the 1991

deed from Judith to Andrew was valid, and whether the first 1996

deed –- which may be the basis for the Santellas' interest in

the property –- put Parcel E in common ownership with Parcels C

and D. If all three of those deeds were valid, Joseph would

have standing to assert a right to redeem Parcel E.

Alternatively, the Driscolls argue that even if Joseph were

found not to be the title holder of an interest in Parcel E,

they own that parcel by adverse possession. Although Judith is

precluded from arguing any ownership, including by adverse

possession, as to Parcels C and D, the City does not argue that

Judith is barred by the doctrine of issue preclusion from

litigating the ownership of Parcel E. The Driscolls allege that

Judith has lived on the parcels, using Parcel E as a driveway,

since 1976. Additionally, part of the house was built on Parcel

E in 1984, and the Driscolls allege that Joseph has lived on the

property since 1989. Finally, since 1996, Joseph has been a

title owner of Parcels C and D, and Parcel E contains the

driveway for, and addition to, the house on one of those

parcels, which are alleged to create the claim of adverse

possession of Parcel E. As such, we remand for a judge of the

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Land Court to consider both of the Driscolls' adverse possession

claims with regard to Parcel E.

2. Unconstitutional taking. The Land Court judgments in

both the 2009 and 2011 litigation, appealed here, were issued

prior to the United States Supreme Court's ruling in Tyler v.

Hennepin County, 598 U.S. 631 (2023). In Tyler, the Supreme

Court held that a municipality violates the takings clause of

the Fifth Amendment to the United States Constitution if it

takes property to settle a tax debt, then sells it at more than

the amount of that debt, and does not pay the excess to the

previous owner, or puts it to public use without paying just

compensation for the value of the property above that debt. Id.

at 639. Although the Driscolls' initial brief was submitted

prior to the Tyler decision, they argued there that the City's

taking of the property, which was worth more than the alleged

tax debt, violated the Fifth Amendment. Because it was decided

during the pendency of this appeal, Tyler must be applied to

this case. See Lindor v. McDonald's Restaurants of Mass., Inc.,

80 Mass. App Ct. 909, 910 (2011), quoting Vassallo v. Baxter

Healthcare Corp., 428 Mass. 1, 23 (1998) ("the normal rule of

retroactivity . . . 'appl[ies a change in the law] to all claims

on which a final judgment has not been entered, or as to which

an appeal is pending'").

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The judge concluded that Joseph could redeem Parcels C and

D for the amount of $228,725.98, plus postjudgment interest and

legal fees and costs. 5 The Driscolls claim in their opening

5 The first Land Court judge who was asked to make a finding
of the terms for redemption, including the amount due, indicated
that a hearing on the amount would be allowed, requiring the
City "promptly to file request for a hearing on a finding
setting the terms for redemption of the properties in Cases Nos.
09 TL 139472 and 11 TL 142181." The City did not do so. A year
later, after the case had been reassigned to the second judge,
the City asked the judge to enter a finding, which he did, for
the $228,725.98, "upon representation by counsel for the
petitioner [City] that the amounts set forth herein are those
due and necessary to cover the requirements of law."

Joseph filed a motion asking the court to reconsider its
entry of finding and requested an evidentiary hearing. The
judge allowed Joseph to file an affidavit with documentation
attached, and he did so, attaching forty-two documents. The
City notified the court that it had concluded there was no new
information contained in the filing and that no further written
submission would be made by the City. Upon "review and
consideration" of the materials before him, the second judge
subsequently denied the motion without holding an evidentiary
hearing.

Of course, no evidentiary hearing is required if there are
no issues of material fact to resolve. Trust Ins. Co. v.
Commissioner of Ins., 48 Mass. App. Ct. 628, 634-635 (2000).
The Driscolls point to the forty-two exhibits that were attached
to Joseph's affidavit that they say raise issues of fact about
their tax payments.

The judge ruled without the benefit of briefing that the
motion for reconsideration be denied, but without explaining why
no evidentiary hearing was required. (The City did
subsequently, in a reply brief in support of its motion for
final judgment, include a detailed explanation why it thinks
none of the exhibits renders its calculations of taxes due
incorrect. But the judge did not have that before him when he
ruled, nor did he address it in any subsequent order.)

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brief that the property is now worth over $875,000, and in their

reply brief that it is worth $1,000,000, something about which

we have no information and express no opinion. Although the

record before us does not reflect that the City has sold the

property, if the value of the property exceeds the amount due

the City and the City determines to take the property, it may

sell it and return the excess proceeds of the sale of Parcels C

and D above the tax debt to Joseph. If the City decides instead

to put the property to public use, rather than sell it, the City

must pay Joseph compensation for the value of Parcels C and D

above the tax liability.

Therefore, should Joseph not redeem the property as

described below, and should the City decide to take the property

even though it will only receive the tax debt, on remand the

judge will be required to craft a new order pursuant to Tyler,

598 U.S. at 639. In addition, any order on remand allowing one

or both of the Driscolls to redeem Parcel E must also be

consistent with Tyler's holding. See id.

3. Denial of motion to enlarge time to redeem. On

September 20, 2022, the second Land Court judge denied Joseph's

Because this case must be remanded in any event, we think
the prudent course is to allow the judge in the first instance
to explain his decision not to hold an evidentiary hearing (or
to hold an evidentiary hearing should he conclude one is
necessary).

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motion to enlarge time to redeem by ninety days, and he also

challenges that denial. We do not find that this was an abuse

of discretion. However, until the question of the ownership of

Parcel E is resolved, the City will not be able to determine

what use they can make of the property, nor will it be able to

sell it, as part of the house is on Parcel C and the other part

is on Parcel E. As such, we think it is prudent to allow Joseph

a further opportunity to redeem Parcels C and D if he can,

especially as the City may prefer to receive that money from him

rather than sell the property, with the costs that entails, only

to be required under Tyler to return what could be most of the

proceeds to him. See Tyler, 598 U.S. at 639.

Conclusion. We affirm so much of the judgment dated

September 26, 2022, as concludes that Joseph has standing to

assert a right to redeem Parcels C and D, and that Judith does

not have standing to assert a right to redeem Parcels C and D.

We otherwise vacate that judgment, the judgment dated September

2, 2022, and the order dated September 20, 2022, and remand to

the Land Court for further proceedings consistent with this

memorandum and order, including resolving the issues with

respect to the deed from Sebastian and Ricci to Judith, and

making findings as to the Driscolls' standing to assert a right

to redeem Parcel E.

So ordered.

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By the Court (Vuono, Rubin &
Smyth, JJ. 6),

Clerk

Entered: November 18, 2024.

6 The panelists are listed in order of seniority.

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