Opinion
21-P-477
06-14-2022
CITY OF LAWRENCE v. MICHAEL SCOTT LEI & another. [1]
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).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Defendant Michael Scott Lei appeals from an order of the Housing Court approving the sale by receiver Avatar Financial Services, Inc. of certain residential property (property) in the city of Lawrence (city) of which Lei was the record owner. Lei also appeals from an order extending the receivership. In essence, Lei argues that the sale amounts to an unconstitutional taking and that he did not receive service of the motion to extend the receivership. We affirm.
In Lawrence v. Lei, 98 Mass.App.Ct. 1115 (2020) (Lei I), a panel of this court affirmed orders of the Housing Court appointing the receiver pursuant to G. L. c. 111, § 127I, approving its budget, and authorizing the receiver to foreclose on the property. The receivership had been imposed to remedy sanitary code violations at the property. The Supreme Judicial Court denied further appellate review of the panel's decision. Lawrence v. Lei, 486 Mass. 1110 (2020).
On January 22, 2021, at a public auction with six qualified bidders, the receiver sold the property for $325,000 to the highest bidder. On February 4, 2021, the receiver moved for approval of sale and to extend the receivership through April 30, 2021, because delay resulting from the appeal in Lei I had required the receiver to rent the property while awaiting sale, and as a result the receiver needed more time to close the transaction. Lei moved to disapprove the sale, arguing that in Lei I the court had erred in affirming the appointment of the receiver. After a hearing, the judge allowed the receiver's motions to approve the sale and to extend the receivership. The judge also denied Lei's motion to disapprove the sale, noting that he treated that motion as an opposition to the receiver's motion to approve it. Lei appeals from those orders.
Avatar Financial Services, Inc., receiver.
Discussion.
Many of Lei's arguments here seek to relitigate the holding of Lei I. He contends that in that case the panel misapplied Boston v. Rochalska, 72 Mass.App.Ct. 236, 241 (2008). He further challenges the receiver's budget, the city's findings of health and sanitary code violations, and the Housing Court's jurisdiction to hear this case. To the extent that Lei asks us to revisit the holding of Lei I, we are not empowered to do so. See G. L. c. 211A, § 11; Mass. R. A. P. 27 (a), as appearing in 481 Mass. 1656 (2019) (motion for reconsideration or modification must be filed within fourteen days of issuance of decision of appellate court). Further, if we were permitted to do so, we would not be inclined to do so here.
The appellees moved pursuant to Mass. R. A. P. 18 (b) (5), as appearing in 481 Mass. 1637 (2019), for leave to file a supplemental record appendix, which motion was granted. We deny Lei's motion to strike the supplemental record appendix, which contains documents that Lei was required to have included in the record appendix. See Mass. R. A. P. 18 (a) (1) (A).
Lei argues that Rochalska is an unpublished decision, and therefore is not binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008). On the contrary, Rochalska is a published decision, and it therefore is binding precedent.
As to Lei's arguments on appeal from the Housing Court orders approving the sale and extending the receivership, we note as follows. We accept "findings of fact made by the judge below . . . unless clearly erroneous" (quotation and citation omitted). Rochalska, 72 Mass.App.Ct. at 241.
1. Taking.
Lei argues that the receivership and subsequent sale of the property constituted an unconstitutional taking. His argument that his private property was taken without just compensation, either through its sale alone or through the course of proceedings culminating in the sale, should have been raised in the prior appeal as a challenge to the order authorizing the sale of the property. Were we to address the issue, we would conclude that a sale of property to satisfy a lien created in accordance with law is not a taking of the owner's private property for public use without just compensation. Without deciding that it would amount to an unconstitutional taking, in this regard we note that Lei does not argue that the government or its agents retained moneys from the sale above the amount of the lien. See, e.g., Rafaeli, LLC v. Oakland County, 505 Mich. 429, 458-461 (2020) (concluding that under the Federal Constitution, retention in some circumstances of surplus proceeds that result from the tax foreclosure sale of the owner's property may amount to a taking without just compensation). To the extent that Lei argues that there was no genuine health or safety justification for the appointment of the receiver, and the resulting creation of the lien, those issues were decided against him in Lei I and he is foreclosed from relitigating them here.
To the extent that Lei argues that the sale was improperly delayed for two years from 2019, when Lei's sister would have been the only qualified bidder, and that the process for qualifying bidders is unfair, we note that the judge found that the receiver conducted the sale in accordance with the terms of the Housing Court's order. We do not disturb that finding of fact. See Rochalska, 72 Mass.App.Ct. at 241.
2. Service of process.
Lei argues that he did not receive service of the February 4, 2021 motion to extend the receivership. He raised this claim in the Housing Court, claiming that he received only the receiver's motion to approve the sale (to which he filed an opposition), but not the motion to extend the receivership. After the receiver's attorney informed the judge that both motions were "put in the same package" and were accompanied by a certificate of service, the judge found that Lei had in fact been served with both motions. We do not disturb that finding of fact. See Rochalska, 72 Mass.App.Ct. at 241.
Those proceedings originated with a December 1, 2016 emergency condemnation and order to vacate. That order stated that, "Conditions found within the dwelling, which give rise to the emergency finding of unfitness and determination of immediate danger, include: Dangerous and unsafe condition: Common nuisance statute, MGL Chapter 139, sections 29 and 30." Lei points out that chapter 139 of the General Laws does not in fact contain sections 29 or 30. Where the notice was broadly worded, and the Housing Court had before it evidence including the fire department's report detailing that the property was "an extremely dangerous fire hazard and public safety concern," the incorrect statutory citation is not grounds for us to revisit the holding in Lei I. Cf. Adjartey v. Central Div. of the Hous. Court Dep't, 481 Mass. 830, 850 n.1(2019) (notice to quit is legally adequate even if it contains "minor errors of technicality or form" [quotation omitted]). See Cambridge St. Realty, LLC v. Stewart, 481 Mass. 121, 129-130 (2018) (defective notice to quit not jurisdictional).
3. Attorney's fees.
The receiver's request for appellate attorney's fees and costs is allowed. See G. L. c. 211A, § 15. Within fourteen days of the date of the rescript, the receiver may file appropriate documentation supporting the request for appellate fees and costs, as discussed in Fabre v. Walton, 441 Mass. 9, 10-11 (2004). Lei shall have fourteen days thereafter to respond.
We need not reach the question whether Lei waived his claim of lack of service of the motion to extend the receivership by filing his motion to disapprove the sale. See Rochalska, 72 Mass.App.Ct. at 242 (party waives right to object to lack of proper service by pleading on the merits).
Conclusion.
The orders approving the sale, extending the receivership, and denying the motion to disapprove the sale are affirmed.
The appellees ask that we authorize the transfer of the property, rather than leaving that to the Housing Court to effectuate. They have not cited any authority permitting us to do so, and so we decline to reach the issue.
Orders entered March 17, 2021 ("Re #84" and "Re #87"), and March 18, 2021 ("Re #90"), affirmed.
To the extent that we have not addressed all of Lei's arguments, they have not been overlooked. Either we find nothing in them that requires discussion, or they do not rise to the level of adequate appellate argument as required by Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019). See Department of Revenue v. Ryan R., 62 Mass.App.Ct. 380, 389 (2004) .