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18

- P

- 483 Appeals Court

ROCCO VIGORITO vs . CITY OF CHELSEA

.

No. 18

- P

- 483.

Suffolk. February 8, 2019.

- May 9 , 2019

.

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

Municipal Corporations , Demolition of burnt or dangerous building. Damages , Demolition of building

. Practice, C ivil , Motion to dismiss, Moot case, Amend ment of complaint. Moot Question

.

C ivil action commenced in the Superior Court Department on August 22, 2016.

A motion to dismiss was heard by Heidi E. Brie ger , J. , and a motion to amend the complaint was heard by her.

Peter G. Calabrese for the plaintiff

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

.

AGNES, J. This appeal arises out of actions taken by the

defendant , the c ity of Chelsea ( city ) , to order the demolition

of a dangerous and unsafe building. G eneral Laws c. 143, § 6 , requires local building inspectors to inspect any unsafe

structure that is reported to them or of which they become2

aware , and to notify property owners of steps they must take " to

remove [ the struc ture ] 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

who m the relevant property had been sold after demolition had

been ordered , appeal s from a Superior Court judgment entered

after the allow ance of the c ity 's motion to dismiss under Mass

. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), and the deni al of
Vigorito's cross motion for leave to file a supplemental
verified complaint. For the following reasons, we affirm

. Background

. Th e 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 c ity

issued an o rder to d emolish or m ake s afe , pursuant to G. L.

c. 143, § 6 , to seven "Owner(s)/Potential Interested Parties"

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, includ ing the right to a trial by jury. I f 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, § 10.3

(the e state), the then

- owners of the property. 2 No notice was
sent to Vigorito, who did no t have an ownership interest in the
property at that time. Approximately nine months later, on or
around June 9, 2016, the e state entered into a p urchase and s ale

a greement with Vigorito for the conveyance of the property,
including the former gas station

. On August 4, 2016, t he estate
conveyed the property to Vigorito by deed , which was r ecorded in
the Suffolk Registry of Deeds on August 8.
Meanwhile, o n or about August 8, 2016, the e state brought

an action to enjoin the c ity '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 c ity served Vig orito with a copy of the September

2015 n otice to d emolish.
Vigorito filed th is action in Superior Court on August 22,

2016. 3 He also filed a motion for an ex parte temporary

2 The c ity subsequently issued , on October 9, 2015 , a b oard of s urvey r eport to the same seven parties, specifically enumerating the physical deficiencies of the structure.

3 Vigorito's verified complaint contained four counts and
s ought 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 t he Property for the duration of this action." It did not seek monetary damages.4

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 c ity

filed a motion to dismiss for fa ilure 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, ad ding 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.

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
cons equently become moot, we nonetheless choose to reach certain issues that have been fully briefed and argued in the exercise of our discretion because appellate case law construing the statutes involved in this case is sparse, the issues relate to important public safety concerns, and cases like the one before us are "capable of repetition , yet evad[e] review." Metros v. Secretary of the Commonwealth , 396 Mass. 156, 159 (1985), quoting Southern Pac. Terminal Co

. v. ICC , 219 U.S. 498, 515 (1911). Moreover, Vigorito's appeal from the denial of his motion to file a supplemental verified complaint is not moot.5

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 (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 (2008), citing Bell Atl. Corp

. v. Twombly , 550
U.S. 544, 555, 557 (2007).

N othing in the controlling statutory framework requires the
city to re

- serve subsequent property own ers with an order of

demolition . T he provisions of G. L. c. 139 and c. 143 establish

the pre deprivation 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. 2 010) (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 comme nce 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 order6

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 e state, when served with the c ity 's d emolition

o rder in September 2015, did not challenge the order within the

timef rame set forth in § 2. 6 , 7

5 See G. L. c. 143, § 6 (providing that local inspector "shall forthwith in writing notify the owner .

. . to remove [the unsafe structure] " ).

6 Al t hough we consider only the allegations in the complaint for purposes of assessing the order on the defendant's motion to dismiss, we note that the record indicates that Vigorito took possession of the property with actual notice of the impending demolitio n given his knowledge of the e state's civil action to enjoin the demolition and its eventual dismissal with prejudice. Apart from the allegations in the verified complaint, the record contains additional evidence indicating that Vigorito was put on notice of the impending demolition even t hough he was not served the n otice of d emolition until mid

- August. Both the c ity
s olicitor in the e state's case and the c ity 's attorney in this appeal submitted affidavits attesting that they, and other city officials, i nformed Vigorito (and his attorney) prior to his purchase of the property of the operative status of the demolition order, steps the c ity was actively taking to prepare for the demolition, and the fact that the purchase of the property by Vigorito or any o ther third party would not impact the scheduled demolition. See G. L. c. 143, § 10 ("no provision of [G. L. c. 139, § 2] shall be construed so as to hinder, delay or prevent the local inspector acting and proceeding under section nine ").

7 Ordinarily, when a party is served with notice that a demolition order has issued, the party must file a civil action in Superior Court within three days of service and may request both equitable relief and monetary damages as provided by G. L.
c. 139, § 2. A complaint seeking only equitable relief could be regarded as a waiver of the right to request mone tar y damages. G eneral Laws c. 143, § 7, authorizes the city to immediately demolish any structure deemed unsafe pursuant to the provisions of G. L. c

. 143, § 6 "if the public safety so requires." In such circumstances , as here, "where an owner7

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 Ma ss. 701, 703 (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 w hen 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 (1977). Here, the record shows that Vigorito waited to file
his motion until three days after the c ity filed its motion to
dismiss, having made no effort otherwise to resolve the matter

desires to challenge .

. . the immediate demolition of a structure deemed hazardous to public safety, or the liens for the costs of demolition," such owner must commence a civil action in Superior Court to seek relief. South Commons Condominium Ass'n , 967 F. Supp. 2d at 461. If the owner succeeds in such challenge after a jury trial, the sole remedy available to him is compensation in the form of damages and
co sts. Id

.8

during the intervening months and providing no su fficient reason
for the undue delay. 8 See DiVenuti v. Reardon , 37 Mass. App. Ct.
73, 77 (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 counse l 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 p laintiff 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 supplement al
complaint. 9

8 Vigorito attempts to justify the delay by pointing to his pursuit of three building permits for the property following the demolition. He appealed the denial of those permits to the
c ity 's z oning b oard of a ppeal, arguing that that was a neces sary preliminary step to assess his damages for purposes of this app eal. However, he does not argue that his damages did not
accrue until the permit applications were denied, or that, until those denials, he was unclear whether his damages were of suffici ent magnitude to make the claims worth pursuing. Thus, t he judge did not abuse her discretion in rejecting Vigorito's proffered reasons for the delay. For these reasons, the judge did not fail to consider any relevant factor that was necessary to the app ropriate exercise of her discretion. L.L

. v. Commonwealth , 470 Mass. 169, 185 n.27 (2014).

9 When inquiry was made at oral argument, counsel for the city stated that he intended his general request for costs in his brief to encompass a request for appellate attorney's fees.9

Judgment affirmed

.

That general request was insufficient as a request for appellate attorney 's fees must be specifically set forth in the requesting party's brief. Beal Bank, SSB v . Eurich , 448 Mass. 9, 11 (2006). Beal Bank identified two purposes for the requirement, one of which is relevant here: to "notify[] the opposing party that the requ esting party is seeking fees and giv[e] the opposing party an opportunity to respond." Id . This purpose would be thwarted if we were to entertain the request here when it was not made in the brief. Although the court has discretion to award appellate fe es in the absence of a request in the brief, see Haser v. Wright , 65 Mass. App. Ct. 903, 904 n.3 (2005), we decline to exercise that discretion here.