Patrick T. Conley v. Paul Fontaine ( 2016 )


Menu:
  •                                                       Supreme Court
    No. 2015-48-Appeal.
    (PM 14-4830)
    Patrick T. Conley               :
    v.                      :
    Paul Fontaine, et al.            :
    NOTICE: This opinion is subject to formal revision before
    publication in the Rhode Island Reporter. Readers are requested to
    notify the Opinion Analyst, Supreme Court of Rhode Island, 250
    Benefit Street, Providence, Rhode Island 02903, at Telephone 222-
    3258 of any typographical or other formal errors in order that
    corrections may be made before the opinion is published.
    Supreme Court
    No. 2015-48-Appeal.
    (PM 14-4830)
    Patrick T. Conley                :
    v.                       :
    Paul Fontaine, et al.             :
    Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
    OPINION
    Justice Robinson, for the Court. At issue in this case is the legal propriety of a
    judgment allowing Bank of New York Mellon (the Bank) to redeem certain property that had
    been sold at a tax sale. The plaintiff, Patrick T. Conley, appearing pro se, appeals from a
    Providence County Superior Court judgment in which his “Motion for Entry of Default and Final
    Decree” with respect to the property at issue (located at 1090 Joslin Road in Burrillville) (the
    Property) was denied, and the Bank’s Motion to File a Late Answer and its request to redeem the
    Property were granted. Mr. Conley contends that the trial justice erred in allowing the Bank to
    redeem even though it had been “negligent” with respect to filing its “Response to Petition to
    Foreclose Tax Lien,” its Motion to File a Late Answer, and its entry of appearance; he avers that
    the just-referenced documents were filed improperly, in that the Bank did so only after the return
    date specified in the “Petition to Foreclose Tax Lien,” and he further contends that the Bank has
    “failed to explain its tardiness.” This case came before the Supreme Court pursuant to an order
    directing the parties to appear and show cause why the issues raised in this appeal should not be
    -1-
    summarily decided. After a close review of the record and careful consideration of the parties’
    arguments (both written and oral), we are satisfied that cause has not been shown and that this
    appeal may be decided at this time.
    For the reasons set forth in this opinion, we vacate the judgment of the Superior Court.
    I
    Facts and Travel
    It is undisputed that, on September 27, 2013, plaintiff purchased the Property at a tax
    sale. Subsequently, on October 1, 2014, plaintiff filed a “Petition to Foreclose Tax Lien” (the
    Petition) in the Providence County Superior Court, in which plaintiff sought to foreclose the
    Bank’s right of redemption with respect to the Property pursuant to G.L. 1956 § 44-9-25. It is
    also undisputed that, on October 7, 2014, the Petition provided notice to the Bank in the
    following terms:
    “PETITION TO FORECLOSE TAX LIEN
    PM No. 14-4830
    “TO ALL, WHOM IT MAY CONCERN, and to PAUL
    FONTAINE, SHERYL FONTAINE, BANK OF NEW YORK
    MELLON, JOHN A. DESANO, JR., ESQ., AND NASONVILLE
    FIRE DISTRICT
    “Whereas, a petition has been presented to said Court by
    PATRICK T. CONLEY, ESQ.[,] 1445 Wampanoag Trail, Suite
    203 of East Providence, RI 02915 in the County of Providence and
    said State, to foreclose all rights of redemption from the tax lien
    proceedings described in said petition in and concerning a certain
    parcel of land situated in the County of Providence and in said
    State, bounded and described in said petition as follows:
    “That certain lot or parcel of land with all the buildings and
    improvements thereon situated at 1090 Joslin Road in the Town of
    Burrillville, County of Providence, State of Rhode Island, laid out
    and designated as Lot 19 on Assessor’s Plat 63.
    -2-
    “If you desire to make any objection or defense to said petition you
    or your attorney must file a written appearance and answer, under
    oath, setting forth clearly and specifically your objection or
    defense to each part of said petition, in the office of the Superior
    Court in Providence on or before the 20th day following the day of
    receipt of this Citation next, that you may then and there show
    cause, if any, why the prayer of the petition should not be granted.
    “Unless your appearance is filed by or for you, your default will be
    recorded, the said petition will be taken as confessed and you will
    be forever barred from contesting said petition or any decree
    entered thereon.” (Emphasis in original.)
    It is further undisputed that the Bank did not file an answer on or before the twentieth day after
    receipt of the Petition (which would have been October 28, 2014). In the Bank’s memorandum
    filed pursuant to Article I, Rule 12(A) of the Supreme Court’s Rules of Appellate Procedure, the
    Bank described several communications between plaintiff and the Bank’s local counsel which
    took place between October 30 and November 6, 2014 in an attempt to reach an agreement as to
    the redemption of the Property.
    An Omnibus Calendar Assignment Form assigning plaintiff’s “Motion for Entry of
    Default and Final Decree” for a hearing was filed on October 31, 2014.1 On November 10,
    2014, Mr. Conley filed a “Motion for Decree Pro Confesso,”2 which, if granted, would have
    resulted in a general default being recorded as to the Bank. Thereafter, on November 11, 2014,
    counsel for the Bank filed an entry of appearance as well as its “Response to Petition to
    1
    Although the record indicates that plaintiff’s “Motion for Entry of Default and Final
    Decree” was filed and, ultimately, the judgment in this case referenced that motion, there is no
    copy of the motion in the record.
    2
    The most recent edition of Black’s Law Dictionary indicates that the arcane term “pro
    confesso” is derived from Roman law and defines the term as meaning “having confessed or
    admitted liability, as by failing to appear when required.” Black’s Law Dictionary 1400 (10th
    ed. 2014).
    -3-
    Foreclose Tax Lien,” in which the Bank requested that the court “permit redemption” in an
    amount to be determined by the court.3
    On November 12, 2014, a Motion to File a Late Answer was filed on behalf of the Bank.
    On that same date, a brief hearing was held on plaintiff’s “Motion for Entry of Default and Final
    Decree,” at the conclusion of which the trial justice continued the hearing until December 3. On
    the latter date, a hearing was held on plaintiff’s “Motion for Entry of Default and Final Decree”
    and “Motion for Decree Pro Confesso” as well as on the Bank’s Motion to File a Late Answer
    and its “Response to Petition to Foreclose Tax Lien,” which contained an offer to redeem upon
    terms to be fixed by the court.
    The trial justice rendered a bench decision on December 10, 2014. In the course of
    recounting the background facts, the trial justice asked counsel for the Bank the following
    question regarding the Bank’s failure to have responded to the Petition within the time frame
    indicated therein: “What’s the explanation for the documents not being forwarded in a timely
    manner?”    Counsel for the Bank responded: “Your Honor, I apologize for not having an
    explanation for why they were inadvertently misplaced.” In his bench decision, the trial justice
    ultimately concluded that, pursuant to § 44-9-29,4 the court was not barred “from exercising its
    discretion to permit a party to file an answer out of time.” He further stated as follows in
    3
    The record states that the documents referenced in the text were filed on November 11,
    2014, although we note that that day was a holiday.
    4
    General Laws 1956 § 44-9-29 provides in pertinent part as follows:
    “Any person claiming an interest, on or before the return
    day or within that further time as may on motion be allowed by the
    court, shall, if he or she decides to redeem, file an answer setting
    forth his or her right in the land, and an offer to redeem upon the
    terms as may be fixed by the court.”
    -4-
    reference to plaintiff’s “Motion for Entry of Default and Final Decree:” “Under the
    particularized circumstances of this case, the [c]ourt [could not], in its judgment, grant plaintiff
    [a] drastic remedy.” Additionally, the trial justice granted the Bank’s Motion to File a Late
    Answer as well as the Bank’s request for redemption. The trial justice continued the case for one
    week so that the parties could “attempt to resolve the cost of redemption due to plaintiff.” On
    December 17, 2014, the parties appeared before the trial justice and stated that they had come to
    an agreement that the amount of redemption would be $8,230.31.
    A judgment entered on January 21, 2015 providing that: (1) plaintiff’s “Motion for Entry
    of Default and Final Decree” was denied; (2) the Bank’s Motion to File a Late Answer and
    request to redeem the property were granted; and (3) the amount to be paid by the Bank to
    redeem the property was set at $8,230.31. The plaintiff filed a timely appeal.
    II
    Issues on Appeal
    Mr. Conley contends on appeal that the Superior Court erred: (1) in allowing the Bank to
    file an untimely answer; and (2) in allowing the Bank to redeem the Property.
    III
    Standard of Review
    It is a basic principle that we review matters of statutory construction in a de novo
    fashion. Shine v. Moreau, 
    119 A.3d 1
    , 9 (R.I. 2015). And it is similarly well established that,
    “when the language of a statute is clear and unambiguous, this Court must interpret the statute
    literally and must give the words of the statute their plain and ordinary meanings.” 
    Id. (internal quotation
    marks omitted); see Kayak Centre at Wickford Cove, LLC v. Town of Narragansett,
    
    116 A.3d 250
    , 253 (R.I. 2015); Sindelar v. Leguia, 
    750 A.2d 967
    , 970 (R.I. 2000). We have also
    -5-
    stated that only when a statute is ambiguous will we “apply the rules of statutory construction
    and examine the statute in its entirety to determine the intent and purpose of the Legislature.”
    State v. Diamante, 
    83 A.3d 546
    , 548 (R.I. 2014) (internal quotation marks omitted).
    IV
    Analysis
    In Rhode Island, “an owner’s right to redeem property after a tax sale is governed by
    chapter 9 of title 44 [of the General Laws].” Johnson v. QBAR Associates, 
    78 A.3d 48
    , 52 (R.I.
    2013). Within one year following a tax sale, “a person holding an interest in the property has an
    absolute right to redeem the property by paying the purchase price to the buyer at the tax sale or
    the holder of the tax deed, along with any accumulated fees, taxes, and penalties.” Id.; see § 44-
    9-21. If, within a year of the tax sale, the property has not been redeemed, “the purchaser at the
    tax sale may file a petition in Superior Court to foreclose upon any interested party’s right of
    redemption.” Izzo v. Victor Realty, 
    132 A.3d 680
    , 685 (R.I. 2016) (internal quotation marks
    omitted); see § 44-9-25(a). The purchaser is then required to “send notice to all interested
    parties, including the mortgagee.” 
    Izzo, 132 A.3d at 685
    ; see § 44-9-27. Once notice of the
    petition has been provided, “any interested party may redeem the property by filing an answer to
    the petition along with an offer to redeem on or before the specified return day, which may be
    fixed no sooner than twenty days after the issuance of the notice.” 
    Johnson, 78 A.3d at 52
    ; see
    § 44-9-29. However, if an “interested party fails to do so, a decree shall be entered which shall
    forever bar all rights of redemption.” 
    Izzo, 132 A.3d at 685
    (internal quotation marks omitted);
    see § 44-9-30.
    -6-
    A
    The Bank’s Motion to File a Late Answer
    The first issue with which we are confronted is whether the trial justice had the
    discretionary authority to grant the Bank’s Motion to File a Late Answer in spite of the fact that
    said motion was not filed on or before the twentieth day after receipt of the Petition (viz.,
    October 28, 2014).
    Assuming without deciding that a motion to file a late answer could be entertained by the
    court after the return date, such a motion would have been unavailing in the instant case—due to
    the fact that, as expressly indicated by counsel for the Bank at the hearing on December 10,
    2014, he had no “explanation for why [the documents] were inadvertently misplaced.”5 See
    Albertson v. Leca, 
    447 A.2d 383
    , 386 n.2 (R.I. 1982) (noting that the defendants had not asserted
    “any extenuating circumstance for their failure to file within the statutory time limit” both their
    specifications of title defects and motion for extension of time as a factor in determining whether
    the defendants had waived their right to challenge the validity of a tax title). In view of the fact
    that no good cause was shown for the Bank’s failure to comply with the deadline set out in the
    Petition, the Bank’s Motion to File a Late Answer should have been denied. See id.; see also
    Karayiannis v. Ibobokiwe, 
    839 A.2d 492
    , 496 (R.I. 2003).
    B
    The Bank’s Redemption of the Property
    The plaintiff contends that the trial justice erred in allowing the Bank to redeem the
    Property. He also contends that the Bank was already “in default” before the initial hearing on
    5
    It will be recalled that counsel for the Bank made the quoted statement in response to the
    following inquiry by the trial justice: “What’s the explanation for the documents not being
    forwarded in a timely manner?”
    -7-
    November 12, 2014 because the Bank did not file its Motion to File a Late Answer until after the
    return date set out in the Petition.
    Given the fact that, as explained above, the Bank’s Motion to File a Late Answer should
    have been denied, the Bank was in default under § 44-9-29 because of its failure to file an
    answer setting forth its right to the Property on or before the return date provided for in the
    Petition. See generally 
    Karayiannis, 839 A.2d at 496
    (stating that the defendant was in default
    because she failed to take any steps to redeem the property on or before the return date). Section
    44-9-30 provides that, if an interested party fails to file an answer along with an offer to redeem
    on or before the specified return day, “a decree shall be entered which shall forever bar all rights
    of redemption.” See 
    Izzo, 132 A.3d at 685
    . Accordingly, the Bank should not have been
    permitted to redeem the Property, and a decree should have been entered barring the Bank’s right
    of redemption.
    V
    Conclusion
    For the reasons stated in this opinion, we vacate the judgment of the Superior Court. We
    remand the record to that tribunal for entry of judgment in accordance with this opinion.
    -8-
    RHODE ISLAND SUPREME COURT CLERK’S
    OFFICE
    Clerk’s Office Order/Opinion Cover Sheet
    TITLE OF CASE:       Patrick T. Conley v. Paul Fontaine, et al.
    CASE NO:             No. 2015-48-Appeal.
    (PM 14-4830)
    COURT:               Supreme Court
    DATE OPINION FILED: May 9, 2016
    JUSTICES:            Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
    WRITTEN BY:          Associate Justice William P. Robinson III
    SOURCE OF APPEAL:    Providence County Superior Court
    JUDGE FROM LOWER COURT:
    Associate Justice Brian Van Couyghen
    ATTORNEYS ON APPEAL:
    For Plaintiff: Patrick T. Conley, Esq.
    For Defendants: Samuel C. Bodurtha, Esq.
    

Document Info

Docket Number: 15-48

Filed Date: 5/9/2016

Precedential Status: Precedential

Modified Date: 5/10/2016