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Massachusetts Appeals Court Summary Dispositions Pursuant to Rule 23.0 (formerly Rule 1:28)

Docket Number - 23-P-0892main content

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WENDY SWOLINZKY vs. TOWN OF AQUINNAH & another.
5/9/2025
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NOTICE: 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-892
WENDY SWOLINZKY
1
vs.
TOWN OF AQUINNAH & another.
2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Wendy Swolinzky, appeals from a summary
judgment dismissing her claims against the defendants, the town
of Aquinnah (town) and the Board of Selectmen of Aquinnah
(board). We affirm.
Background. Since 1970, the town has owned a plot of land
(lot A) on which sits a "shack." Swolinzky operates a business
on an adjacent plot of land (lot B) that she leased from the
town. By agreement with the lessee of lot A (but in violation
of the lot A lease), Swolinzky used the shack between 2006 and
2013. The town did not renew the lot A lease due to this
1
Doing business as Book-a-Boat.
2
Board of Selectmen of Aquinnah.
2
violation, and Swolinzky sought to continue using the shack,
appearing at board meetings through 2013. Swolinzky alleged
that she purchased the shack from the lessee of lot A, who in
turn claimed the authority to sell the shack, in April 2013.
3
The board considered several proposals by Swolinzky but
ultimately awarded the lot A lease to another individual and
voted on December 3, 2013, to have the shack remain on lot A as
"town-owned property." Swolinzky was present at that meeting.
On February 5, 2014, the board gave Swolinzky written notice of
its decision.
On December 4, 2013, Swolinzky first brought suit in the
Superior Court, amending that complaint several times before the
case was removed to Federal court where the defendants prevailed
on summary judgment on March 29, 2019. On July 23, 2019,
Swolinzky filed the complaint at issue, bringing claims under
G. L. c. 79, §§ 10, 14, for the first time, and claims under
arts. 10, 11, 12, and 14 of the Massachusetts Declaration of
Rights. The judge allowed the defendants' motion for summary
judgment; judgment entered, and this appeal followed.
Discussion. On appeal, Swolinzky primarily contends that
she has an independent cause of action under art. 10 of the
3
The lessee was the executrix of the estate of a decedent
who claimed to own the shack.
3
Massachusetts Declaration of Rights and that her claims under
G. L. c. 79 are not time barred.
4
We disagree.
5
We review a judge's grant of summary judgment de novo. See
Adams v. Schneider Electric USA, 492 Mass. 271, 280 (2023).
"Summary judgment is appropriate where there is no material
issue of fact in dispute and the moving party is entitled to
judgment as a matter of law. . . . We review the evidence in
the light most favorable to the party against whom summary
judgment entered" (quotations and citations omitted). Id.
1. Independent cause of action. General Laws c. 79
"embodies rights guaranteed under art. 10 of the Declaration of
Rights," Bromfield v. Treasurer & Receiver Gen., 390 Mass. 665,
671 n.11 (1983), and "creates a comprehensive scheme" regarding
property takings, Locator Servs. Group, Ltd. v. Treasurer &
Receiver Gen., 443 Mass. 837, 854 (2005). As c. 79 provides the
"exclusive statutory remedy," Whitehouse v. Sherborn, 11 Mass.
App. Ct. 668, 673 (1981), Swolinzky does not have an independent
4
To the extent we have not specifically addressed
Swolinzky's other arguments, we have considered them and find
nothing in them that warrants overturning the judgment. See
Department of Revenue v. Ryan R., 62 Mass. App. Ct. 380, 389
(2004).
5
The defendants note that Swolinzky did not provide an
adequate record for appellate review. See G.B. v. C.A., 94
Mass. App. Ct. 389, 397 n.13 (2018); Mass. R. A. P. 18 (a), as
appearing in 481 Mass. 1637 (2019). Nevertheless, we exercise
our discretion to reach the merits of her claims.
4
claim under art. 10 of the Massachusetts Declaration of Rights.
Cf. Guzman v. Lowinger, 422 Mass. 570, 572-573 (1996) (where
Legislature "created a comprehensive scheme for adjudicating
claims of sexual harassment in the workplace," statute is
"exclusive statutory remedy and therefore bars recovery" under
civil rights act and art. 1 of Massachusetts Declaration of
Rights).
2. Statute of limitations. Swolinzky's remaining claims
are time barred as a matter of law. See Abrahamson v. Estate of
LeBold, 89 Mass. App. Ct. 223, 228 (2016). Claims under
G. L.c. 79, §§ 10, 14, are subject to either a one-year or
three-year statute of limitations. Section 10 permits the
property owner to file a petition with the government entity
that took the property, with a one-year limitations period from
the date of the taking. See G. L. c. 79, § 10. Section 14 also
allows the property owner to seek damages in the Superior Court.
See G. L. c. 79, § 14. Claims under § 14, with certain
exceptions not applicable here, must be filed "within three
years after the right to such damages has vested." G. L. c. 79,
§ 16. See Wine v. Commonwealth, 301 Mass. 451, 456 (1938);
Caporale v. Selectmen of Billerica, 37 Mass. App. Ct. 912, 913
(1994). Swolinzky's cause of action accrued at the latest by
February 5, 2014, when the board sent notice of its decision
regarding the shack. Swolinzky had until February 2017 to file
5
a complaint under § 14; she filed this complaint in July 2019,
over two years late.
6
Under either § 10 or § 14, the limitations
period has run.
Judgment affirmed.
By the Court (Blake, C.J.,
Shin & Walsh, JJ. ),
7
Clerk
Entered: May 9, 2025.
6
We are unpersuaded by Swolinzky's contention that G. L.
c. 79, § 18, tolls the limitations period until September 2019.
Swolinzky could have brought her c. 79 claims at any point in
the prior litigation; her failure to do so is not cured by § 18.
7
The panelists are listed in order of seniority.