384 Mass. 301 | Mass. | 1981
The plaintiff appeals from an order of a Superior Court judge dismissing his complaint for contempt premised upon the provisions of G. L. c. 231 A, § 5. The plaintiff’s complaint purported to be based on the partial final judgment for the plaintiffs in Chomerics, Inc., & others vs. Leo C. Keating & others (Middlesex Equity No. 34862) entered April 29, 1976.
The Chomerics decision, supra, on which the plaintiff relied at trial, involved an action that challenged the appraisal of fair cash value of certain commercial properties in Woburn from 1972 through the date of the Chomerics judgment. The Chomerics case was consolidated for trial with several similar actions brought by owners of commercial and industrial properties in the city of Woburn (city) other than the plaintiff in the case at bar.
In the instant case, the plaintiff’s complaint in the Superior Court sought that court’s determination of the full and fair cash value of real estate he owned in the city of Woburn for the years 1974, 1975, and 1976. He asked the court to order the same remedy as Chomerics; that the city issue amended tax bills for those years based on an assessment of 23 % of the full cash value; and that the city refund all excessive taxes with interest.
The judge ruled that the terms of the Chomerics judgment bind the present defendants. Applying the Chomerics formula to the plaintiff’s full and fair cash value figures, the judge determined that the plaintiff had been assessed excess taxes totaling $52,567.08 over the two and one-half calendar years at issue. The judge found that the plaintiff had filed timely abatement applications for his 1974 and 1976 taxes. These abatements were allowed and accepted in the amounts of $11,995.20 for 1974 and $2,223.60 for 1976. The judge found that no application for abatement of the 1975 taxes had been filed.
With regard to the effect of the Chomerics decision on the plaintiff’s case, the judge made no findings concerning the plaintiff’s relationship to the Chomerics plaintiffs. He concluded that the present plaintiff might be entitled to further relief as a result of Chomerics if that decision had declared the tax “wholly void” or if resort to administrative remedies were “seriously inadequate.” Based on his contrary determination of these two questions, the judge declined to order the requested relief.
The plaintiff raises several issues in opposing this result. He argues that he is entitled to relief under either or both §§ 5 and 8 of G. L. c. 231A. He postulates that § 8 recovery flows from his being a member of the class of plaintiffs who prevailed in Chomerics. Alternatively, the plaintiff maintains that the second paragraph of G. L. c. 231A, § 5 (inserted by St. 1974, c. 630, § 3), entitles him to seek relief by way of contempt because he is “a person not a party to the original action involving said practice or procedure” but “adversely affected by the same or similar practice.” G .L. c. 231 A, § 5. By his construction of § 5 the plaintiff suggests that the trial judge abused his discretion in refusing to grant declaratory relief and in dismissing the suit. This result the plaintiff attributes to the judge’s erroneous reading that Chomerics failed to declare the city’s tax “wholly void.” Finally, the plaintiff questions on relevance grounds the admission in evidence of its abatement applications and the decision of the Appellate Tax Board. We have analyzed each of these contentions and find none persuasive.
1. The plaintiff’s relationship to the parties and judgment in Chomerics. The final paragraph of G. L. c. 231A, § 8 (inserted by St. 1974, c. 630, § 4), permits a contempt action on a declaratory judgment by successful “petitioners in a class suit, [or] any member of said class thereafter aggrieved by any violation of said order or decree.” To qualify for standing under § 8 the plaintiff must have been a
2. Declaratory relief in tax cases. The plaintiff draws our attention, however, to G. L. c. 231A, § 5, which allows relief to aggrieved persons who were not parties to the original declaratory judgment itself.
We start from the well-settled principle that the statutory abatement procedures are exclusive, absent exceptional circumstances. Nearis v. Gloucester, 357 Mass. 203, 205, cert, denied, 400 U.S. 918 (1970). See Sydney v. Commissioner of Corps. & Taxation, 371 Mass. 289, 294-295 (1976); Sears, Roebuck & Co. v. Somerville, 363 Mass. 756, 757-758 & n.4 (1973). The authorities cited by the plaintiff to make out a set of exceptional circumstances in his case might have been more felicitously applied to the question of the propriety of granting declaratory relief in Chomerics pursuant to G. L. c. 231 A, § 1. That question is not before us,* **
There is no question that the plaintiff has status as an aggrieved person under the second paragraph of G. L. c. 231A, § 5. However, the final clause of that paragraph confutes his claim for relief from excessive taxes already paid. That clause limits contempt actions to agencies “continuing said practice or procedure after the entry of said decree.” G. L. c. 231A, § 5. The underlying purpose of this section is to make contempt actions available to persons who might subsequently become aggrieved by a contemnor’s failure to adhere to the continuous and prospective command of a declaratory judgment. As we have already noted, the Chomerics decision prescribed both retrospective relief in the form of adjustments for excessive taxes paid and prospective cessation of the city’s improper assessment practices. The prospective aspect is enforceable under G. L. c. 231A, § 5, against postdecree violations, i.e., for taxes assessed after 1977. The plaintiff, however, asks for retrospective relief for the years 1974, 1975, and 1976.
As a further justification for declaratory relief, the plaintiff presses the point that the Chomerics judge determined that the city’s tax scheme was “wholly void.” He alludes to the second paragraph of the partial final judgment in Chomerics in which the judge declared “that taxes for the years in issue which are based upon said assessed valuations are illegal and void.” Admittedly a wholly void tax is an unenforceable nullity, but we cannot conclude that the cited lan
The remedial nature of the relief granted in Chomerics as to past taxes negates the inference that the court nullified the tax in its entirety. If the tax were wholly void, the court would have had no need to order adjustments for excessive payments. A wholly void tax would not be enforced at all. In Bettigole, supra at 238, we invalidated as “wholly illegal and void” an entire proposed assessment scheme and required a “wholly new assessment.” Id. at 237. Bettigole thus bears analogy to the prospective aspect of Chomerics, but we are not prepared to extend that analogy to permit discretionary relief in retrospect.
3. Relevance of the plaintiff’s abatement application record. The records of the plaintiff s abatement petitions for 1974, 1975, and 1976 were admitted as evidence. They supported the judge’s subsequent finding that the plaintiff had failed to make timely abatement application for 1975 and that he withdrew his appeal from the decision of the Appellate Tax Board which issued some three months after the plaintiff had filed the instant action. From the plaintiffs perspective, all facts preceding the entry of the judgment in Chomerics are irrelevant to the issues at bar. We think evidence of the plaintiff s posture at the initiation and during the prosecution of the Chomerics litigation is probative of his rights in relation to that judgment. We have already observed, at note 6, supra, that the plaintiff might have joined as a party or attempted to ascertain his representation as a member of the plaintiff class. Instead,
Judgment affirmed.
The partial final judgment in that case was affirmed by the Appeals Court. Chomerics, Inc. v. Assessors of Woburn, 6 Mass. App. Ct. 394 (1978).
The docket entries reproduced on appeal reveal a continuous procession of additional plaintiffs seeking to be added as parties plaintiff. It appears that all but the last of these motions, brought on October 15, 1973, were allowed. Besides the addition of plaintiffs to the Chomerics action, the court allowed consolidation with a pending action entitled, Clifford J. Martin & others vs. Leo C. Keating & others, in 1973, and with Globe Ticket Co. & others vs. Leo C. Keating & others, in 1975.
There was testimony suggesting that the plaintiffs 1975 abatement application was not filed within thirty days after the tax bill was issued, as required by G. L. c. 59, § 59.
See note 7, infra.
Although the docket record of Globe Ticket Co. & others vs. Leo C. Keating & others (Superior Court, Middlesex County, No. 36535 Eq.), the action consolidated with Chomerics, reveals no motions for adding plaintiffs, that action commenced on March 14, 1974. Pretrial activities were a matter of public notice through May 19,1975, when the pleadings were impounded until April 14, 1977. We deduce from this that the plaintiff had the opportunity to join or intervene in that suit or at least to verify whether his class interests were represented as he now claims. Instead, until July, 1977, the plaintiff pursued administrative remedies.
The plaintiff’s original complaint made claim to a right only under G. L. c. 231A, § 5. The record shows neither an amendment to that complaint nor argument of a class action theory before the trial judge. We consider the plaintiff’s expostulation of his class membership only to determine whether there has been a miscarriage of justice. Roto-Lith, Ltd. v. F.P. Bartlett & Co., 297 F.2d497, 500 (1st Cir. 1962). See Lenari v. Kingston, 348 Mass. 355, 358-359 (1965); Marcil v. John Deere Indus.
The defendants in Chomerics waived appeal of the question of the validity of that discretionary action. See Chomerics, Inc. v. Assessors of Woburn, supra at 396-397 & n.4. We thus assume without deciding that the declaratory judgment in Chomerics is valid.
The plaintiffs citation to Coan v. Assessors of Beverly, 349 Mass. 575 (1965), is misplaced. Coan, supra at 579, ordered the Superior Court to retain jurisdiction over the enforcement of a judgment prospective in force. That decision fashioned injunctive relief only against the continuance of improper valuation practices. Id. at 577. There was no adjustment for excess taxes already paid in Coan.