Opinion
NOCV2014-01322
06-12-2017
Myles J. Connor v. District Attorney for the Norfolk District No. 137272
OPINION
Michael D. Ricciuti, Justice of the Superior Court.
The plaintiff, Myles J. Connor (" Connor"), brought this action for declaratory relief pursuant to G.L.c. 231A against the District Attorney for the Norfolk District (" District Attorney") seeking a declaration that he is the owner of certain property (" the Property") which was seized during execution of a search warrant in 1985 and held by the District Attorney. Connor also seeks an injunction preventing the District Attoney from exercising further control over the Property.
The District Attorney acknowledges it still possesses at least some of the Property and concedes that the Property is no longer needed for any trial. Nonetheless, the District Attorney moves for summary judgment on Connor's claims, alleging that his action should be governed by the three-year statute of limitations applicable to replevin actions and was filed too late, and, in any event, should be barred under the doctrine of laches.
In consideration of the parties' memoranda of law and oral arguments, and for the reasons that follow, the Court concludes that genuine issues of material fact exist regarding the statute of limitations that may be applicable in this case. Accordingly, the District Attorney's motion for summary judgment is DENIED .
FACTS
The following relevant facts are either undisputed or presented in the light most favorable to the plaintiff, in accordance with the dictates of Mass.R.Civ.P. 56.
On March 8, 1985, the Quincy Police Department executed a valid search warrant at 48 Burt Street in Dorchester. As a result of the search, the police seized the Property, which included antique guns, swords, and Persian rugs. Connor was informed that the police seized the Property sometime in 1985.
In 2000, Connor contacted the District Attorney by telephone regarding the Property, asserting a claim of ownership to it. Thereafter, an oral and written dialogue about Connor's claim to the Property ensued. During that dialogue, the District Attorney did not contend that Connor had waited too long to make his claim. Following several years of communications, on December 17, 2008, the District Attorney rejected Connor's ownership claim and request for return of the Property, asserting that he had failed to demonstrate that he was the true owner of the Property. The District Attorney did not institute any legal action regarding the Property thereafter. No others have come forward to claim ownership of the Property.
On December 12, 2013, Connor's attorney contacted the defendant again, requesting to meet about his claim to the Property.
Connor states that he acquired certain of the Property at issue from his grandfather, Charles Johnson, after he died. Johnson did not have a will. Connor also states that he purchased some of the Property from an antiques dealer, Timothy Steinmetz. Connor does not have any receipts for the alleged purchases from Steinmetz but provided an affidavit purportedly signed by Steinmetz in 2007 in which Steinmetz states that purchased items on behalf of Connor or had observed items in Connor's possession, all of which are generally consistent with the Property. Steinmetz died sometime after 2007, after the District Attorney was made aware of his potential knowledge of relevant facts. No effort was made by the District Attorney to interview or otherwise preserve Mr. Steinmetz's potential testimony. Connor also states that he purchased certain items of the Property in Maine but has no receipts for those alleged purchases.
On October 1, 2014, the plaintiff filed the instant action.
DISCUSSION
Summary judgment is appropriate when the record shows that " there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Mass.R.Civ.P. 56(c); see also DuPont v. Comm'r of Correction, 448 Mass. 389, 397, 861 N.E.2d 744 (2007). The moving party bears the initial burden of demonstrating that there is no triable issue and he is entitled to judgment. NG Bros. Constr., Inc. v. Cranney, 436 Mass. 638, 644, 766 N.E.2d 864 (2002), citing Pederson v. Time, Inc., 404 Mass. 14, 17, 532 N.E.2d 1211 (1989); Kourouvacilis v. Gen. Motors Corp., 410 Mass. 706, 716, 575 N.E.2d 734 (1991). In reviewing a motion for summary judgment, the Court views the evidence in the light most favorable to the non-moving party and draws all reasonable inferences in his favor. Jupin v. Kask, 447 Mass. 141, 143, 849 N.E.2d 829 (2006), citing Coveney v. President & Trustees of the College of the Holy Cross, 388 Mass. 16, 17, 445 N.E.2d 136 (1983); see also Simplex Techs., Inc. v. Liberty Mut. Ins. Co., 429 Mass. 196, 197, 706 N.E.2d 1135 (1999).
Plaintiff's action is for declaratory relief. The purpose of the declaratory judgment statute, G.L.c. 231A, is " to remove, and to afford relief from, uncertainty and insecurity with respect to rights, duties, status and other legal relations." G.L.c. 231A, § 9. There is no statute of limitations applicable to declaratory actions; instead, the Court looks to the statute that applies to the underlying dispute. See, e.g., Page v. LeRoux, 43 Mass.App.Ct. 708, 711, 685 N.E.2d 1205 (1997). The statute of limitations begins when an actual controversy arises between the parties creating a right to secure a judicial declaration. Naranjo v. Dep't of Revenue, 63 Mass.App.Ct. 260, 268, 825 N.E.2d 1051 (2005).
The District Attorney argues that the underlying dispute is one in tort and that the three-year statute of limitations applicable to replevin actions thus applies. See G.L.c. 260, § 2A . However, the District Attorney cites no law in support of this argument or the assumption that the replevin statute of limitations applies in cases where a person seeks the return of property the government has seized during execution of a search warrant. Indeed, the underlying dispute in this case may be more properly considered an action by the plaintiff to enforce the provisions of G.L.c. 276, § 3. That section states that an officer who seizes property or articles during the execution of a search warrant shall " safely keep them" as long as necessary so they can be used at trial. " As soon as may be, thereafter, " the District Attorney " shall" return to the rightful owner any property that had been stolen, embezzled, obtained by false pretenses or otherwise obtained in the commission of a crime. Id. ; see also G.L.c. 276, § 1 (clause First); Commonwealth v. Sacco, 401 Mass. 204, 207 n.3, 515 N.E.2d 1185 (1987) (" Property seized pursuant to a search warrant must be restored to its owners when it is no longer needed, " citing G.L.c. 276, § 3). " [A]ll other property seized in execution of a search warrant shall be disposed of as the court or justice orders and may be forfeited and either sold or destroyed, as the public interest requires, in the discretion of the court or justice." G.L.c. 276, § 3. Thus, § 3 presumes the government will take some action with regards to property it seizes so that a court order results. See Sacco, 401 Mass. at 207 n.3 (" Plainly the Legislature intended that some judicial proceeding must be available to facilitate the disposition of seized property"). There is no statute of limitations contained in c. 276 governing actions by a party seeking to recover property seized pursuant to this statute when the government fails to take action.
Nevertheless, even were the Court to conclude that the three-year replevin statute of limitations applied here, there would still be a genuine issues of material fact in dispute regarding its operation in this case. The District Attorney argues that the statute of limitations started running in 1985. That claim is untenable. The District Attorney was authorized under c. 276 to retain the Property until it was no longer needed for trial, and nothing in the record suggests this point was reached in 1985. In fact, the District Attorney did not assert when Connor made his claim in 2000 that this point had been reached even then, and engaged in the discussion of Connor's claim of ownership for the following eight years without any assertion that the claim was untimely. It is not even clear on this record that the statute of limitations clock began running on Connor's claim on December 17, 2008 when the District Attorney rejected Connor's request for return of the Property. That conclusion would rest on the assumption that the burden was then on Connor to take action to get the Property back. That would be in error; fairly read, c. 276 puts the burden not on Connor but on District Attorney to seek a court order to dispose of the Property, whether by forfeiture or otherwise, and to do so promptly. See, e.g., Commonwealth v. One 1978 Ketch Named " Snow White, " 23 Mass.App.Ct. 399, 401, 502 N.E.2d 570 (1987) (the " Commonwealth has a duty to institute proceedings and carry them through with reasonable dispatch") (citation omitted). The law does not permit the District Attorney to simply retain property seized during execution of a search warrant.
Had it sought forfeiture, the District Attorney would have had the obligation to take action with reasonable dispatch and Connor would have been afforded the opportunity to prove that the Property was not forfeitable. See G.L.c. 94C, § 47(d). With no further action having been taken, Connor next contacted the District Attorney with respect to the Property in 2013. There is no evidence in the record that the District Attorney responded to this letter. While the District Attorney is no doubt correct that, in the absence of action by the government, Connor could not wait indefinitely to initiate his own action, how long was too long under these facts is not at all clear from this record. Cf. Commonwealth v. Two Parcels of Land, 48 Mass.App.Ct. 693, 700-01, 724 N.E.2d 739 (2000) (whether there was inappropriate delay by the governing in seeking forfeiture is a question of fact). Questions of fact remain as to when the District Attorney concluded the Property was no longer needed as evidence for trial and when this controversy properly arose--in 2008, when the District Attorney rejected Connor's request for return of the Property, in 2013, when the District Attorney did not respond to the plaintiff's request to meet about the Property, or at some other point when the District Attorney failed to take action under c. 276, § 3 regarding the Property. Therefore, even were the Court to accept the District Attorney's argument that the underlying dispute is in substance an action for replevin, and that Connor had three years to bring it, it would still find a genuine issue of material fact with respect to when that three-year period began running.
Similarly, assuming that it applies in this case, the District Attorney's laches argument raises material factual issues as to how long was too long for Connor to have delayed in taking action to assert his rights. Laches is an affirmative defense that must be proven by the defendant. Mass.R.Civ.P. 8(c); Three Sons, Inc. v. Phoenix Ins. Co., 357 Mass. 271, 278, 257 N.E.2d 774 (1970). Whether particular circumstances in this case establish the defense of laches is a question of fact in which the District Attorney must prove that the delay worked some prejudice or disadvantage. See Myers v. Salin, 13 Mass.App.Ct. 127, 138-39, 431 N.E.2d 233 (1982), citing Provident Co-op. Bank v. James Talcott, Inc., 358 Mass. 180, 187, 260 N.E.2d 903 (1970), Norton v. Chioda, 317 Mass. 446, 452, 58 N.E.2d 828 (1945), and Mastrandrea v. Baressi, 2 Mass.App.Ct. 54, 57, 308 N.E.2d 573(1974). Prejudice to the District Attorney in this case is fact-intensive. Summary judgment on this ground is not appropriate.
ORDER
Defendant's motion for summary judgment pursuant to Mass.R.Civ.P. 56 is therefore DENIED .
SO ORDERED.