Merlino v. Tax Assessors for Town of North Providence
| Decision Date | 21 May 1975 |
| Docket Number | No. 74-226-A,74-226-A |
| Parties | Thomas R. MERLINO et ux. v. TAX ASSESSORS FOR the TOWN OF NORTH PROVIDENCE et al. ppeal. |
| Court | Rhode Island Supreme Court |
On June 29, 1973, the plaintiffs, husband and wife, filed a complaint against the defendants, in their capacities as tax assessors and members of the Town Council of the Town of North Providence. The plaintiffs alleged therein that they were being disproportionately taxed on a certain parcel of real estate owned by them in that town as a result of the December 31, 1972 assessment by the defendant tax assessors. The plaintiffs prayed that the court order the defendants to cease and desist the discriminatory practices outlined in their complaint and that the court order the defendants to submit to the court within a reasonable time a comprehensive plan for the general revaluation of all ratable real property located in the town. They contended then, as they do now, that the practices of the tax assesssors violated the provisions of G.L.1956 (1970 Reenactment) § 44-5-12 and their rights under art. I, § 2 of the Rhode Island Constitution and the equal protection clause of the fourteenth amendment to the United States Constitution.
On October 19, 1973, in answer to plaintiff's request for a preliminary injunction, a consent decree was entered in the Superior Court. The decree contained the following orders:
'(1) That pending final hearing therein, and in the meantime, a preliminary injunction issue ordering defendants to quash the assessed valuation of $18,900.00 imposed by defendants on plaintiffs' property on December 31, 1972 and to reinstate the December 31, 1971 valuation of $12,300.00.
'(2) That defendants refund to plaintiffs monies paid by plaintiffs in excess of the $718.32 properly due according to the restored valuation of $12,300.00 said excess amounting to $385.44.'
When the case was reached for trial on the merits in the Superior Court, the parties agreed to submit the dispute for decision by the court upon memoranda of law and the following agreed statement of facts:
Plat 25, Lot 441.
'2. The assessed valuation of said dwelling on December 31, 1971, then owned by John and Judith Campbell, was $12,300.
'3. The assessed valuation of said dwelling on December 31, 1972, then owned by plaintiffs, was increased from $12,300 to the present level of $18,900, an increase of 53.7%.
property was not occasioned by any physical improvements of said property.
'5. Defendant tax assessors and their predecessors in office have not performed a general revaluation of all ratable real property located in the Town of North Providence since 1960.
'6. Since 1960, defendant tax assessors and their predecessors in office have followed the systematice practice of increasing assessed valuations of real property under only two conditions: change in physical nature of the property or sale of the property.
'7. On December 31, 1972, defendant tax assessors increased the assessed valuation of real property sold during the previous twelve months. The new assessed valuations were generally determined to be sixty per cent (60%) of the ostensible purchase price as reflected by the tax stamps located on the respective deeds.
dwelling to approximately 60% of the $31,400 purchase price as reflected by the tax stamps located on the deed to said property.
'9. On December 31, 1972, defendant tax assessors did not change the assessed valuations of the single family dwellings located at 24, 27, 31, 32, or 35 Bicentennial Way since said properties were not sold during the previous twelve months.
'10. On December 18, 1973, it was stipulated in open court that:
On the assessment date of December 31, 1972, and on previous assessment dates, defendant tax assessors did not increase the assessed valuations of those parcels of property experiencing a transfer of title during the previous twelve months where the recorded deeds had no transfer stamps affixed evidencing consideration for the conveyance.'
On March 12, 1974, the trial justice to whom the matter was referred rendered a decision in favor of defendants. On the same day a judgment was entered for defendants and the preliminary injunction issued on October 19, 1973 was vacated. The plaintiffs filed an appeal from that judgment.
On March 28, 1974, plaintiffs filed a motion pursuant to Super.R.Civ.P. 60(b) to vacate the decision rendered on March 12, 1974 and to certify the matter to this court for hearing and determination. The motion was heard by a justice of the Superior Court and denied. The plaintiffs filed an appeal to this court.
On May 6, 1974, defendants filed a motion to dismiss plaintiffs' action on the ground that plaintiffs had sold the property involved in this action at a purchase price greater than that paid by plaintiffs, as evidenced by tax stamps affixed to the pertinent deeds, certified copies of which defendants attached as exhibits to the motion to dismiss. This motion was heard by a justice of the Superior Court on June 19, 1974 and granted. The plaintiffs filed an appeal from the granting of that motion. 1
We consider initially plaintiffs' contention that the trial justice erred in granting defendants' motion to dismiss. As stated above, defendants based their motion on the ground that plaintiffs had sole their property on April 23, 1974, at a purchase price greater than that paid by them. From this, it appears, defendants argued that since plaintiffs had no further interest in the subject real estate, the question was moot. The trial justice obviously agreed and granted the motion.
For the reasons that follow we hold that the trial justice erred in granting the motion to dismiss. For the purposes of this case we shall assume that the trial justice had the right to hear and decide defendants' motion.
Notwithstanding the provisions of the consent decree entered on October 19, 1973, there is nothing in the agreed statement of facts or anywhere else in the record showing that the terms of that decree were carried out. Specifically, there is nothing in this record indicating that monies paid by plaintiffs in excess of the tax due on the assessed valuation of $12,300 was ever returned. Indeed, it appears that plaiantiffs paid the sum of $1,103.76 on the basis of the increased valuation of $18,900 and received no refund as ordered in the October 19, 1973 consent decree. Thus, if plaiantiffs prevailed in this appeal, they would be entitled to a refund of $385.44. In the circumstances, the fact that the property had been sold subsequent to the assessment at a greater price than plaintiffs paid has no bearing on plaintiffs' entitlement to a refund if they prevail on this appeal and, therefore, the action was not moot because of such sale.
The plaintiffs based their motion to vacate on the provisions of G.L.1956 (1969 Reenactment) § 9-24-25, which reads as follows:
They contend that the provisions of § 9-24-25 are mandatory and that the trial justice should have certified the matter directly to this court instead of deciding it himself. They rely also on the provisions of Super.R.Civ.P. 72(b), which reads as follows:
They contend that this case is subject to the provisions of § 9-24-25 and Rule 72(b); that neither § 9-24-25 nor Rule 72(b) vests any discretion in the Superior Court as to certification; and that once an agreed statement of facts is filed, certification is mandatory under § 9-24-25 and Rule 72(b).
We do not agree with plaintiffs' arguments on this issue and for the reasons that follow, we affirm the trial justice's denial of plaintiffs' motion to vacate.
Although we do not have the benefit of a transcript of the hearing on this motion or of the trial justice's decision, it appears from the statements in the opposing briefs that the trial justice based his denial of plaintiffs' motion on the ground that neither party filed a motion as required by Rule 72(a). In the absence of the motion, he held that the parties were not entitled to have the case certified directly to this court for hearing and determination. We agree with his ruling. In our judgment he was correct in holding that Rule 72(a) was controlling in this situation.
Rule 72(a) provides:
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