MARIANNE B. BOWLER, Magistrate Judge.
Pending before this court is a motion to dismiss for lack of standing (Docket Entry # 28) filed by defendants Alfred Daprato ("Daprato"), FREDAP, Inc. and FREDAP Realty Trust
The complaint alleges that Anthony Petrillo ("Petrillo") "of Millville Associates," Inc. ("Millville") paid property taxes for two adjoining parcels of land located in Millville, Massachusetts "for 1993 to 1997." (Docket Entry # 1, ¶ 8). Coccoli seeks to recover the property tax payments from defendants together with interest and costs from 1997 to 2012 for a total amount of $411,000.00. (Docket Entry # 1, p. 5). The brevis complaint also refers to an October 15, 2010 verbal agreement between Coccoli, Petrillo and Luigi D'Arcangelo ("D'Arcangelo") of Millville on the one hand and "Daprato, John Daprato and FREDAP" on the other hand to "develop the parcels of land." (Docket Entry # 1, ¶ 20).
In considering a Rule 12(b)(1) motion to dismiss based on lack of standing, the court accepts "`as true all well-pleaded factual averments in the plaintiff's complaint and indulge[s] all reasonable inferences therefrom in his favor.'"
In evaluating a Rule 12(b)(1) motion to dismiss, the complaint is liberally construed and the court "ordinarily `may consider whatever evidence has been submitted, such as . . . depositions and exhibits."
In evaluating a motion for attachment, Rule 4.1 requires the moving party to submit affidavits that "set forth specific facts." Mass.R.Civ.P. 4.1(h). Coccoli certifies that the facts in the complaint are true under the pains and penalties of perjury. Specific facts in the verified complaint are therefore part of the record vis-à-vis the motions for attachment.
Coccoli, a resident of Chepachet, Rhode Island, has "been a member" of Millville "since 1992." (Docket Entry # 1, ¶¶ 1-2). FREDAP, Inc. "is a Domestic Profit Corporation organized" in Massachusetts.
The present dispute has its origins in two 1928 conveyances of land owned by Frederick Thayer for nonpayment of taxes to the Town of Millville. (Docket Entry # 27-1). In November 1928, after a public auction, the Millville Tax Collector ("the Tax Collector") conveyed all right and title of the "Frederick Thayer home sprout land 30 acres more or less" (book 2483, page 289) ("the Thayer land") to John H. McLaughlin ("John McLaughlin") and all right and title of the "Blake land 40 acres more or less" (book 2483, page 288) ("the Blake land") to Fred M. McLaughlin ("Fred McLaughlin").
Almost ten years later on March 31, 1973, the Pomfrets conveyed certain property to Valmore B. Jacob ("Jacob") (book 5393, page 276). The deed recorded on October 12, 1973, states that the Pomfrets conveyed their right and title to land "containing 103 acres, more or less, which parcel was deeded to us by deed of Fred M. McLaughlin." (Docket Entry # 27-1). As noted above, Fred McLaughlin owned the Blake land of 40 acres. The description in the deed of 103 acres describes the land as "lying westerly of said Thayer Street. . . ." (Docket Entry # 27-1) (emphasis added). The deed does not cite to the book and page number of either the 1963 or the 1928 deeds. Undated aerial surveys provided by Coccoli plot out the 30 acre Blake land, the 40 acre Thayer land and a 32.53 acre parcel of land for a total of 102.53 acres of property. (Docket Entry ## 30-2 & 27-20). A memorandum issued by John R. Harrington ("Harrington") of the Tax Department of the Land Court ("the Harrington memorandum") in a 2003 tax lien case involving the Blake land states that he reviewed a title report and that the Pomfrets conveyed "the locus of 40 acres" to Jacob as part of the 103 acres conveyed in the 1973 deed. (Docket Entry # 27-12).
In or around November 1988, Jacob filed a petition to register land in the Land Court. The petition in case number 42453 ("the registration case") describes "[t]wo parcels of land" and attaches a survey performed by Andrews Survey and Engineering, Inc.
Meanwhile, as stated in a March 1977 deed (book 6135, page 48), the Pomfrets conveyed the Thayer land "containing 30 acres more or less," and the "Blake Land, containing 40 acres, more or less," to Paul J. DiMaio ("DiMaio"), Benson E. Gold ("Gold") and Joseph R. Tutalo ("Tutalo"). (Docket Entry # 30-3). The 1977 deed refers to the 1928 recording of the Thayer land (book 2483, page 289) and the Blake land (book 2483, page 288) as well as the 1963 recording of "the same premises" (book 4417, page 289). In a July 1984 deed (book 8296, page 33), DiMaio, Gold and Tutalo conveyed the same property described in the 1977 deed (book 6135, page 48) to Fred and John Daprato.
On December 29, 1992, Jacob conveyed all his right and title to the property that he received from the Pomfrets to Millville. (Docket Entry # 1, ¶ 6) (Docket Entry # 22-5).
In November 1994, the Tax Collector acquired a tax deed to the property described in "Book 14943, Page 153" for nonpayment of 1993 and 1994 property taxes (book 167110, page 58). (Docket Entry # 22-6). The tax deed describes the property as "situated at 179 Thayer Street." (Docket Entry # 22-6).
In 1997, the Town of Millville notified Millville "that taxes had not been paid since 1993" on the Blake land and the Thayer land which "is now known as 148 Thayer Street." (Docket Entry # 1, ¶ 7).
Also in 1997, the Tax Collector acquired a tax deed on "land situated at 154 Thayer Street" described in "Book 12247 Page 92," i.e., the 1989 deed conveying the Thayer land and the Blake land to Daprato, as trustee of FREDAP Realty Trust. (Docket Entry # 22-2). The tax deed depicts the property as "containing 69.457 acres, more or less." (Docket Entry # 22-4). After payment of the overdue taxes in September 2001, the Tax Collector recorded an acknowledgment of "satisfaction of the tax title account" (book 24984, page 376) on the "land situated at 154 Thayer Street." (Docket Entry # 22-4).
In December 2003, Millville filed two tax lien cases against Frederick Thayer in the Land Court. D'Arcangelo signed each complaint as president of Millville. (Docket Entry ## 27-8 & 27-9). The first tax lien case, number 130260 ("TL 130260"), seeks "to foreclose a tax lien acquired under" the tax deed recorded at "Book 2483 Page 288" for the Blake land. The second tax lien case, number 130261 ("TL 130261"), seeks "to foreclose a tax lien acquired under" the tax deed recorded at "Book 2483 Page 289" for the Thayer land. (Docket Entry ## 1-3, 1-4, 27-8 & 27-9).
In or around February 2004, Millville requested George S. Norton, Esq. ("Attorney Norton"), an "approved Land Court Examiner, to review the record title to the Property . . . and identify any title issues." (Docket Entry # 1, ¶ 10). In May 2004, Stephen A. Izzi, Esq. ("Attorney Izzi") entered an appearance for Millville in both tax lien cases. (Docket Entry # 27-12). On June 2, 2004, the Land Court referred the matter to Attorney Norton, who Coccoli identifies as the "the Land Court Examiner" in TL 130260 and TL 130261. (Docket Entry # 1, ¶ 11) (Docket Entry # 27-12). Attorney Norton filed a report in each case in September 2004. (Docket Entry # 27-12).
In the Harrington memorandum dated October 6, 2004, from Harrington to Attorney Izzi in TL 130260 regarding the Blake land, Harrington states that he reviewed the title report prepared by Attorney Norton. Harrington notes that the report reflects an additional chain of title out of the Pomfrets "in a later deed" than the one given to Jacob in 1973.
Beginning in 2004, Millville representatives or attorneys met with "Daprato/FREDAP, Inc. or his representatives or attorney" as well as with "Millville Assessors Office personnel." (Docket Entry # 1, ¶ 11). Millville representatives or attorneys also met with Attorney "Norton, appointed as Land Court Examiner" for TL 130260 and TL 130261, "to research and clarify the basis, description, land area, and location of the parcels assessed to, and taken for taxes, against [Jacob] and [Millville] as they relate to the Property." (Docket Entry # 1, ¶ 11). In May 2008, an "Examiner's report" issued. An aerial photograph depicts "each parcel of land involved" in the Examiner's report. (Docket Entry # 1, ¶ 12) (Docket Entry # 1-5).
On September 11, 2008,
"On or about January 6, 2009," Millville, "Daprato and FREDAP . . . composed another Joint Venture Agreement to jointly own and develop the parcels of land." (Docket Entry # 1 ¶ 15) (Docket Entry # 1-7). The January 2009 joint venture agreement is not signed. (Docket Entry # 1-7). Language immediately above the signature lines states that, "[T]he parties hereto have executed this Agreement this day of September 2008." (Docket Entry # 1-7). As stated in the document, its purpose is to "jointly own and develop" the "real estate owned by [FREDAP Realty, Inc.]
On January 19, 2010, the Land Court conducted a status conference. (Docket Entry # 1, ¶ 16). On January 21, 2010, Coccoli filed a notice of appearance to proceed as "Pro Se Plaintiff" in TL 130260 and TL 130261. (Docket Entry # 1, ¶ 17) (Docket Entry # 1-8). In a bargain and sale deed dated October 8, 2010, Millville granted Coccoli "all of its right title and interest in and to that certain land . . . lying easterly and westerly of Thayer Street" and described in the 1973 deed from the Pomfrets to Jacob and the deed from Jacob to Millville. (Docket Entry # 1-10). D'Arcangelo, in his capacity as president of Millville, signed the October 8, 2010 bargain and sale deed.
"On or about October 15, 2010," Coccoli, Petrillo and D'Arcangelo "of Millville" met with "Daprato, John Daprato, and FREDAP." (Docket Entry # 1, ¶ 20). "The parties, again, shook hands and verbally agreed to partner and develop the parcels of land." (Docket Entry # 1, ¶ 20). At this point, Coccoli owned the land previously owned by Millville. (Docket Entry # 1-10). "From October 18, 2010 through April 2013," Coccoli and Millville met with Daprato and "FREDAP to discuss and review options regarding" TL 130260 and TL 130261. (Docket Entry # 1, ¶ 21).
On July 18, 2013, the Land Court held a hearing. (Docket Entry # 1, ¶ 22). At the hearing, Daprato and FREDAP "refused to honor the terms and conditions of their agreement." (Docket Entry # 1, ¶ 22). In an October 16, 2013 email to Coccoli, an individual advised Coccoli of his intention to purchase "the 70 acres" from Daprato. In a return email the following day, Coccoli informed the individual that "the 70 acre parcel can not be sold or leased" because it is subject to a lawsuit in this court. (Docket Entry # 27-18). Coccoli filed this suit on October 31, 2013. The registration case remains pending before the Land Court.
In the final paragraph of the complaint captioned "Relief Requested" Coccoli seeks "to recover property taxes he and his associates paid during the period of 1993 to 1997" regarding TL 130260 and TL 130261 plus interest and costs through 2012. (Docket Entry # 1). The amount totals $411,000.00.
Defendants move to dismiss the complaint because Coccoli lacks standing. (Docket Entry # 28). Defendants contend that the "gravamen of the Complaint is that . . . Skeeter Development, LLC paid taxes on Defendants' real estate." (Docket Entry # 29). Neither the complaint nor the subsequently filed materials, including those filed on January 24, 2014 (Docket Entry # 27), show that Coccoli paid these taxes "or that he, individually has otherwise been damaged," according to defendants. (Docket Entry # 29).
Coccoli submits he has standing because the "`Skeeter' transaction was made in 1997 on behalf of Millville Associates" and he has been "a majority stock holder (50%) of Millville" "since 2002." (Docket Entry # 30). Coccoli also claims standing because he purchased the property from Millville "on October 8, 2009," as set forth in the bargain and sale deed.
Article III constitutional standing limits judicial power to certain "Cases" and "Controversies." U.S. Const. art III, § 2. In order to satisfy "the `irreducible constitutional minimum of standing,' [t]he plaintiff must have suffered or be imminently threatened with a concrete and particularized `injury in fact' that is fairly traceable to" the defendant and "likely to be redressed by a favorable judicial decision."
Constitutional standing ordinarily reduces to a three part "triad: injury, causation, and redressability."
Standing also has "a prudential component."
The complaint, liberally construed, identifies two injuries. One injury is to recoup Millville's payment of property taxes (Docket Entry # 1, ¶ 23) and the other injury is to recover for Daprato and FREDAP's refusal to honor their agreement to partner and jointly develop the land situated at 154 Thayer Street (Docket Entry # 1, ¶¶ 13, 15, 20 & 22) (Docket Entry # 1-6 & 1-7).
Addressing the latter, the Town of Millville notified Millville about overdue taxes in 1997. Petrillo paid these property taxes by checks dated March 20, 1997. Succinctly stated, Millville, a corporation, incurred taxes which Petrillo paid. (Docket Entry # 1, ¶¶ 1 & 8) (Docket Entry # 1-2). Coccoli, a shareholder or "member" of Millville since 1992 (Docket Entry # 1, ¶ 2), seeks to recover the payments. He did not own the land subjected to the tax until 2009 or 2010.
Similarly, Coccoli is neither a taxpayer nor a creditor with respect to the 1997 payments. At the time Coccoli filed the complaint, he did not own the debt or an assigned cause of action to recover the allegedly erroneous payment.
Turning to the second injury, it is well settled that a party to a contract as well as a third party beneficiary to a contract have standing to sue for breach of contract.
In the case at bar, the September 2008 and January 2009 purported joint venture agreements identify the contracting parties as Millville and "FREDAP Realty, Inc." (Docket Entry ## 1-6 & 1-7). At that time, Coccoli did not own the land conveyed under the bargain and sale deed and the language of these documents fails to show that Millville and "FREDAP Realty Inc." "clearly and definitely intended" their performance to benefit Coccoli.
In two separate motions, Coccoli seeks to attach real estate owned by Daprato, FREDAP Realty Trust and/or FREDAP, Inc. up to the amount of $411,000.00. (Docket Entry # 18 & 21). The $411,000.00 figure represents the amount of taxes Petrillo paid for Millville purportedly on the Blake land and the Thayer land for the 1993 to 1997 time period and interest and costs from 1997 through 2012. (Docket Entry # 18-1) (Docket Entry # 1, p. 5). The first attachment motion lists 23 properties owned by one or more defendants, including two parcels at 148 Thayer Street, which Coccoli seeks to attach. The motion also includes the necessary affidavit. (Docket Entry # 18-1).
Defendants submit that Millville did not pay any taxes on the Blake land and the Thayer land located at 154 Thayer Street. Hence, as argued at the hearing, Coccoli does not have a reasonable likelihood of success on the merits.
Federal Rule of Civil Procedure 64 allows for remedies, including attachment, as provided for under "the law of the state where the court is located." Rule 4.1 sets out the applicable Massachusetts law applicable to attachment. Mass.R.Civ.Proc. 4.1;
Under Rule 4.1(c), "property may be attached for a specified amount `upon a finding by the court that there is a reasonable likelihood that the plaintiff will recover judgment, including interest and costs, in an amount equal to or greater than the amount of the attachment over and above any liability insurance' possessed by defendants."
In seeking an attachment, a plaintiff "must submit affidavits setting forth `specific facts sufficient to warrant the required findings based upon the affiant's own knowledge, information or belief.'"
As explained in the previous section, Coccoli lacks standing to pursue the tax indebtedness claim. Accordingly, there is no reasonable likelihood of success on the merits for that claim.
In the alternative, even if plaintiff had standing, the facts in the record do not demonstrate a reasonable likelihood of success that Petrillo paid taxes for property owned by Daprato, as trustee of FREDAP Realty Trust. The record includes disputed chains of title emanating from the Pomfrets. The Pomfrets conveyed different descriptions of 103 acres of property to Jacob and thereafter to Millville for land lying westerly of Thayer Street than they did for the Thayer land of 30 acres and the Blake land of 40 acres conveyed to DiMaio, Johnston and Gold and thereafter to Fred and John Daprato and then to Daprato, as trustee of FREDAP Realty Trust.
The tax deed recorded by the Town of Millville in November 1994 reflects that Millville was delinquent in paying taxes for 1993 and 1994 for property located at 179 Thayer Street consisting of 76 acres as described in the 1992 deed from Jacob to Millville.
Coccoli does not raise the breach of contract claim as a basis for an attachment. Even if he did, however, there is no showing of a reasonable likelihood of success.
In order to establish a contract claim under Massachusetts law, "`the plaintiff must prove that a valid, binding contract existed, the defendant breached the terms of the contract, and the plaintiff sustained damages as a result of the breach.'"
More than a year later, Millville conveyed to Coccoli all of its right and title to the land it received in the 1992 deed from Jacob (book 14943, page 153). (Docket Entry # 1-10). Thereafter, on October 15, 2010, Coccoli, Petrillo and D'Arcangelo "of Millville" met with "Daprato, John Daprato, and FREDAP." (Docket Entry # 1, ¶ 20). "The parties, again, shook hands and verbally agreed to partner and develop the parcels of land." (Docket Entry # 1, ¶ 20). At a hearing in the Land Court on July 18, 2013, however, "Daprato/FREDAP Inc." refused to abide by the terms and conditions of the verbal agreement. (Docket Entry # 1, ¶ 22).
As previously explained, affidavits submitted in support of an attachment must "set forth specific facts." Mass.R.Civ.P. 4.1(h). The foregoing statements are conclusory as opposed to specific.
Coccoli also fails to show a reasonable likelihood of success that that parties had a binding contract, that Daprato or FREDAP breached the terms of the agreement or that Coccoli suffered damages as a result of the breach. Furthermore, viewed against the backdrop of the January 2009 joint venture agreement, the fact that "[t]he parties, again, shook hands" (Docket Entry # 1, ¶ 20) (emphasis added) coupled with referring to Coccoli, Petrillo and D'Arcangelo "of Millville" creates doubt as to whether Coccoli is a party to the agreement. At this juncture, Coccoli also fails to show a reasonable likelihood of success that he is an intended third party beneficiary of the verbal agreement as opposed to an incidental beneficiary.
In accordance with the foregoing discussion, the motion to dismiss (Docket Entry # 28) is
