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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, 

Civil, Motion to dismiss, Moot case, Amendment of 

complaint. Moot Question.

Civil action commenced in the Superior Court Department on 

August 22, 2016. 

A motion to dismiss was heard by Heidi E. Brieger, 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 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 
2

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" 

 

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.
3

(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 

 

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

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. 

 

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 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). 

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 
6

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 

 

5 See G. L. c. 143, § 6 (providing that local inspector 

"shall forthwith in writing notify the owner . . . to remove 

[the unsafe structure]"). 

6 Although 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 

demolition given his knowledge of the estate'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 though he was not served 

the notice of demolition until mid-August. Both the city

solicitor in the estate's case and the city's attorney in this 

appeal submitted affidavits attesting that they, and other city

officials, informed Vigorito (and his attorney) prior to his 

purchase of the property of the operative status of the 

demolition order, steps the city was actively taking to prepare 

for the demolition, and the fact that the purchase of the 

property by Vigorito or any other 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 monetary damages.

General 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 owner 
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 (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 (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 

 

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 

costs. Id.
8

during the intervening months and providing no sufficient 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 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

 

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 

city's zoning board of appeal, arguing that that was a necessary 

preliminary step to assess his damages for purposes of this 

appeal. 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 

sufficient magnitude to make the claims worth pursuing. Thus, 

the 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 appropriate 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 requesting 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 fees 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.