Gaudreau v. Blasbalg

• Decision Date: 11 January 1993
• Docket Number: No. 91-583-A,91-583-A
• Citation: 618 A.2d 1272
• Parties: William GAUDREAU et al. d.b.a. Ocean View Associates, a Massachusetts general partnership v. Arnold BLASBALG et al. ppeal.
• Court: Rhode Island Supreme Court

Page 1272

618 A.2d 1272

William GAUDREAU et al. d.b.a. Ocean View Associates, a Massachusetts general partnership v. Arnold BLASBALG et al.

No. 91-583-Appeal.

Supreme Court of Rhode Island.

Jan. 11, 1993.

Douglas H. Smith, Providence, for plaintiffs.

Patrick T. Conley, East Providence, for defendants.

OPINION

MURRAY, Justice.

The plaintiffs in this case are the six general partners of Ocean View Associates, a Massachusetts general partnership. These plaintiffs appeal from an order of a trial justice granting the defendants' motion to dismiss. We sustain the plaintiffs' appeal.

The allegations of the parties are as follows. According to defendants, in 1987 plaintiffs, Ocean View Associates, purchased a three-family home at 623 Potters Avenue in Providence, Rhode Island. Throughout 1987 and 1988 Ocean View Associates allegedly failed to pay real estate taxes on this property, and in 1989 the city of Providence sold this home to defendants at a tax sale for $802.57, the exact amount of taxes owed by Ocean View Associates to the city of Providence.

The defendants claim that more than one year later they filed an action attempting to foreclose Ocean View Associates' right of redemption pursuant to G.L.1956 (1988 Reenactment) § 44-9-25. The defendants allege that they had difficulty identifying the general partners of Ocean View Associates and serving them with notice of the foreclosure action. General Laws 1956 (1992 Reenactments) §§ 6-1-1 and 6-1-3 require all partnerships in Rhode Island conducting business under an assumed name to register the names and addresses of the general partners with the municipal clerk in the city where they conduct or intend to conduct the business. Ocean View Associates, according to defendants failed to register this information, and as a result, defendants could not find the names and addresses of the general partners. In addition the collector's deed that defendants received at the tax sale and which is at issue in the instant case did not identify the general partners. The collector's deed listed the owners of the property as "Ocean View Associates, 308 Locust Avenue, Fall River, MA 02720."

The defendants claim that on June 12, 1990, they mailed notice, certified mail with return receipt requested, to Ocean View Associates at the Locust Avenue address listed on the collector's deed. The defendants assert that a post office employee attempted to deliver notice to this address on June 13, 18 and 23 of 1990 and that a post office employee returned the notice to defendants marked "unclaimed." The defendants assert they then attempted to track down a phone number listing for Ocean View Associates in the Fall River directory and failed. Ultimately defendants asked and received approval from Superior Court to provide constructive notice through advertisement in the Providence Journal on three separate dates in September 1990. These advertisements also failed to elicit a response from Ocean View Associates.

On October 29, 1990, without word from Ocean View Associates, defendants appeared before Superior Court and obtained a default judgment. This default judgment purported to foreclose Ocean View Associates' right to redeem the Potters Avenue property forever.

After defendants acted on their newly acquired default decree by collecting rent from the tenants on the premises, Ocean View Associates apparently learned of the tax sale and the subsequent foreclosure of their right of redemption. Ocean View Associates then sought to set aside this default judgment on the grounds that defendants had failed to provide them with proper notice of the foreclosure action.

From a procedural standpoint the normal route that a party would take to vacate a default judgment would be to file a motion to set aside the judgment pursuant to Rules 55(c) and 60(b) of the Superior Court Rules of Civil Procedure. Rule 81(a)(2), however, limits the applicability of the Rules of Civil Procedure to petitions for foreclosure of redemption interests in land sold for nonpayment of taxes. Rule 81(a)(2) states that the Rules of Civil Procedure only apply to these foreclosure actions insofar as the Rules provide a method for appealing to the Supreme Court. Thus Rule 81(a)(2) precluded Ocean View Associates from filing a motion to set aside the default decree.

With this avenue for redress unavailable to them, Ocean View Associates initiated a separate lawsuit that is now the subject of this opinion. In this lawsuit Ocean View Associates petitioned Superior Court for a preliminary injunction barring defendants from enforcing their allegedly void default judgment. The defendants responded by filing a motion to dismiss the complaint. This matter came before a trial justice on August 28, 1991, and the trial justice denied plaintiffs' motion for a preliminary injunction and granted defendants' motion to dismiss.

On this appeal Ocean View Associates argue that the trial justice misapplied the standard for reviewing a motion to dismiss. We agree. On many occasions this court has set forth the standard a trial justice must apply when reviewing a motion to dismiss. In Thompson v. Thompson, 495...