Ewing v. Frank
| Decision Date | 09 November 1967 |
| Docket Number | No. 67-A,67-A |
| Citation | 103 R.I. 96,234 A.2d 840 |
| Parties | Anne Ashton EWING v. Laurence C. FRANK et al., Board of Tax Assessors. ppeal. |
| Court | Rhode Island Supreme Court |
This statutory petition for relief from a tax allegedly overassessed on December 31, 1965, against the plaintiff's real estate was brought in the superior court pursuant to G.L.1956, § 44-5-26, against the tax assessors for the town of Jamestown. The defendants filed a motion to dismiss, supported by affidavits, claiming a lack of jurisdiction and failure to state a claim under rule 12(b) of the rules of civil procedure of the superior court. It is before us on the plaintiff's appeal from a decision of that court which granted the defendant assessors' motion to dismiss for lack of jurisdiction.
Before proceeding further, we wish to point out a technical error of procedure in the hearing of defendants' motion to dismiss. It appears from the record that the motion was described and treated by the trial justice as one under rule 12(b) exclusively. However, when parties submit material dehors the pleading in support of or opposition to a motion to dismiss under rule 12(b) where the jurisdiction of the court to hear the matter is questioned, and such extraneous matters are considered by the court, all of which occurred in this case, the motion is automatically transformed into one for a summary judgment under rule 56. 1A Barron & Holtzoff, § 349, p. 301; 12(b) R.I.C.P. In such cases, regardless of how the motion is denominated, we shall treat it as one for summary judgment. We do so here.
It is clear from an examination of the record that plaintiff contests only the assessment made on her real estate. She does not take issue with the assessment on her tangible personal property. The assessors concede that they made no assessment on her intangible property. A sworn statement which purported to be a full, true and exact account of all plaintiff's property was seasonably filed with the assessors.
In their challenge to the superior court's jurisdiction, the assessors do not question the adequacy or accuracy of plaintiff's account as it pertains to her real estate. They do, however, contend that those segments of the account which refer to plaintiff's tangible and intangible personal property failed to satisfy the statutory requirements for the filing of this document as those conditions were originally delineated in Ewing v. Tax Assessors of Town of Jamestown, 93 R.I. 372, 176 A.2d 69, and affirmed in Sayles Finishing Plants, Inc. v. Toomey, 95 R.I. 471, 188 A.2d 91. In construing the pertinent legislation, we ruled in those two cases that a taxpayer was required to file a reasonably adequate account of all his ratable property as a condition precedent to bringing a suit for relief from an alleged overassessment. If such an account was not filed, the superior court lacked jurisdiction to entertain the taxpayer's petition.
Attached to the motion to dismiss filed in the instant case was a copy of plaintiff's account. The particular portion of the account which the assessors deemed insufficient reads as follows:
The assessors state that this return suffers from the same defects which prohibited the taxpayers in Ewing and Sayles from contesting the assessments made against them. Even if we accept arguendo this proposition as true, the assessors cannot bar plaintiff from pressing her petition for relief.
While we acknowledge our holding in Ewing and Sayles, those cases cannot be considered as controlling here because subsequent to the Sayles opinion the general assembly substantially changed one of the statutes which govern the filing of a taxpayer's account. When we decided the above-cited cases, our rulings were based upon the provisions of §§ 44-5-15 and 44-5-16, both as amended. Section 44-5-15 then and still does require every taxpayer to bring in a true and exact account of all the ratable estate owned or possessed by the taxpayer describing and specifying the value of every parcel of such real and personal estate. Section 44-5-16 then provided that whoever neglected or refused to bring...
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...Kingsley v. Miller, 120 R.I. 372, 388 A.2d 357 (1978); Town of Scituate v. O'Rourke, 103 R.I. 499, 239 A.2d 176 (1978); Ewing v. Frank, 103 R.I. 96, 234 A.2d 840 (1967). In this case, as in Kingsley v. Miller, "the legislative purpose, though imperfectly expressed, is clear." 120 R.I. at 37......
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