Finnegan v. Bing
| Decision Date | 01 June 2001 |
| Docket Number | No. 99-430-Appeal.,99-430-Appeal. |
| Parties | Phoenix J. FINNEGAN, a Rhode Island General Partnership, v. Christopher BING et al. |
| Court | Rhode Island Supreme Court |
Present: WILLIAMS, C.J., LEDERBERG, BOURCIER, FLANDERS, and GOLDBERG, JJ.
Patrick T. Conley, Jr., East Providence, for Plaintiff.
Richard G. Riendeau, Stephen A. Rodio, Providence, for Defendant.
In this appeal, we are called upon to determine whether the Superior Court may consider and determine claims unrelated to a taxpayer's redemption rights in a petition seeking to foreclose a taxpayer's right to redeem property previously sold by a city tax collector for nonpayment of taxes, brought pursuant to G.L. 1956 § 44-9-25.
On June 26, 1997, at a tax collector's sale of properties for nonpayment of taxes held in the City of Providence (city), Phoenix J. Finnegan (Phoenix), a local real estate partnership, purchased a parcel of real estate located at 16 Alma Street in Providence and owned by the respondent Christopher Bing (Bing). The assessed value of the property was $32,370. Phoenix purchased it for $2,372.33, representing the amount of the unpaid taxes and incidental sale charges. On July 8, 1998, Phoenix filed a "Petition to Foreclose Tax Lien" which, as the late Justice Kelleher aptly noted, ought to be designated as "A Petition to Foreclose the Right of Redemption."1 The respondents in the petition were Bing, the former fee owner of the property, and the city, whose purported interest was noted as being a "Leinor [sic]."
Although the case file does not contain the citation that was ordered to issue and to be sent via certified mail, return receipt requested to the respondents, we may assume that such was done because both respondents did file answers to the petition. The respondent Bing answered and challenged the legality and validity of the sale of his property because of a lack of notice to him of the proposed tax sale. The city answered and asserted that it was without information to form any opinion about Phoenix's allegations set out in its petition, and asserted the affirmative defense of G.L 1956 § 45-15-5.
On March 25, 1999, the petition to foreclose Bing's right to redeem the property was reached for hearing before a justice of the Superior Court. At that hearing, before any testimony or evidence was presented, Phoenix's attorney acknowledged as true that part of Bing's answer to the petition concerning Bing's failure to receive notice of the tax sale, and conceded that the city collector's tax sale of Bing's property was "void" because the city "did not extend proper notice under [§] 44-9-10 to Mr. Bing at his new address in Massachusetts." Counsel for Phoenix, after conceding the invalidity of the tax sale of Bing's property, asked the hearing justice to order that the city "be directed under § 44-9-43, to reimburse me, or to reimburse my client." The city's attorney objected to that requested order. In argument before us, the city contends that § 44-9-43 was not involved, and that Phoenix was required to file a claim for a refund against the city pursuant to § 45-15-5. That contention also had been pled in the city's answer to Phoenix's petition.
The hearing justice granted Phoenix's request, explaining that That order was entered and provided that "[p]ursuant to R.I.G.L. § 44-9-43, the City of Providence shall reimburse petitioner for the amounts paid to acquire tax title in the amount of $2,372.33." Final judgment then was entered in favor of Phoenix, and against the city for $2,372.33.
The city appealed and asserts that, pursuant to § 44-9-43, the Superior Court lacked jurisdiction to order the city to reimburse Phoenix, and that Phoenix's sole statutory remedy was to file a claim with the city council seeking its refund pursuant to § 45-15-5.
The reliance of Phoenix and the hearing justice upon § 44-9-43 is misplaced. Phoenix's petition to foreclose Bing's equity of redemption was not, and could not, be premised upon § 44-9-43. That statutory provision pertains only to tax titles that are founded upon sales of tax properties sold without foreclosure. Phoenix misconceives what a sale without foreclosure is. Phoenix purchased Bing's property at a tax sale conducted by the city's tax collector pursuant to § 44-9-7. At that sale, the city collector was authorized to sell by public auction "the smallest undivided part" of Bing's property that would bring into the city's coffers the money due it for the unpaid taxes and other charges. Section 44-9-8. In a tax sale, pursuant to § 44-9-8, the city collector "may sell the whole [title] only in the event that no person offers to take a smaller portion" of the title and yet pay...
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