Pollard v. Acer Group

• Decision Date: 08 March 2005
• Docket Number: No. 2003-34-Appeal.,2003-34-Appeal.
• Citation: 870 A.2d 429
• Parties: Alexandra L. POLLARD v. ACER GROUP, a Rhode Island General Partnership.
• Court: Rhode Island Supreme Court

870 A.2d 429

Alexandra L. POLLARD v. ACER GROUP, a Rhode Island General Partnership.

No. 2003-34-Appeal.

Supreme Court of Rhode Island.

March 8, 2005.

Eileen Hadfield, for Plaintiff.

Patrick T. Conley, East Providence, for Defendant.

Present: WILLIAMS, C.J., GOLDBERG, FLAHERTY, SUTTELL, and ROBINSON, JJ.

OPINION

ROBINSON, Justice.

Robinson, Justice. The plaintiff, Alexandra L. Pollard, appeals from a Superior Court judgment denying her motion for summary judgment and granting the motion for summary judgment that had been filed by the defendant, Acer Group, a Rhode Island general partnership. In her appeal to this Court, the plaintiff challenges the constitutionality of the Rhode Island tax sale statute as it existed at the time of the tax sale of certain property that Mrs. Pollard owned in Newport, Rhode Island.¹ A threshold (and ultimately dispositive) issue in this case is whether, given our long-standing policies, the plaintiff's constitutional argument that was not raised below should be heard by this Court. The plaintiff explicitly concedes that she did not raise in the Superior Court the constitutional issue that she now argues on appeal, but she contends that this Court should nonetheless address her constitutional issue.² We conclude that the plaintiff should not be permitted to raise the constitutional issue for the first time in this Court,³ and we accordingly affirm the judgment of the Superior Court.

Facts/Travel of the Case

On April 23, 1973, plaintiff and her now-deceased husband, Edgar Pollard, purchased the property at issue, which is located at 24 Southmayd Street, Newport. The couple retained ownership of the property after moving to Virginia in 1979. In 1986, after her husband's death, plaintiff took ownership in fee simple. In August 1999, the City of Newport sold the property at a tax sale to an entity called "Newport Group — 99" for $2,644.44, pursuant to the procedures set forth in G.L. 1956 chapter 9 of title 44. Thereafter, in December 2000, Newport Group — 99 conveyed its interest in the property to defendant, and defendant then proceeded to file in Newport County Superior Court a petition to foreclose — which petition specifically indicated that, if granted, "all rights of redemption" would thereby be foreclosed.⁴ On January 13, 2001, plaintiff received notice of defendant's petition to foreclose the rights of redemption, which required a response by plaintiff within twenty days of receipt (February 2, 2001).

The petition stated in relevant part:

"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 objections or defense to each part of said petition, in the office of the Superior Court in Newport 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."

It is uncontested that plaintiff received the petition; the postal receipt is part of the record. It is also uncontested, however, that plaintiff failed to respond to the petition within twenty days of receipt. Accordingly, on defendant's motion, the Superior Court, on February 23, 2001, entered a default judgment against plaintiff, which by its terms forever foreclosed her right of redemption.

On May 30, 2001, more than three months after the default judgment was entered, plaintiff commenced a separate civil action against defendant in the Superior Court for Newport County, seeking to invalidate the default judgment by contesting the validity of the tax sale.⁵ In her complaint, plaintiff alleged that the notice procedures employed by the City of Newport violated the Rhode Island tax sale statute.⁶See chapter 9 of title 44. The plaintiff and defendant eventually filed cross-motions for summary judgment.⁷ The Superior Court denied plaintiff's motion and granted defendant's motion, finding that the procedures set forth in the tax sale statute had been complied with, and that, therefore, the tax sale of plaintiff's property was valid.⁸ On appeal to this Court, appellant does not challenge that ruling by the Superior Court. Instead, defendant raises an entirely new issue for our review, viz., whether the Rhode Island tax sale statute as it existed at the time plaintiff's property was sold violates the Fourteenth Amendment's due process requirements.

Analysis

The plaintiff's brief on appeal extensively argues that the tax sale scheme underlying the petition to foreclose her rights of redemption is unconstitutional.⁹ Unfortunately for plaintiff, however, she utterly failed to articulate such an argument in the Superior Court. Accordingly, pursuant to one of our most well-established principles (the raise or waive rule), that argument will not be considered by us. See, e.g., State v. Saluter, 715 A.2d 1250, 1258 (R.I.1998)

("It is axiomatic that `this court will not consider an issue raised for the first time on appeal that was not properly presented before the trial court.'") (quoting State v. Gatone, 698 A.2d 230, 242 (R.I.1997)); Chase v. Bouchard, 671 A.2d 794, 795 (R.I.1996) ("One of our most settled doctrines in this jurisdiction is that a matter not raised before the trial court may not be raised for the first time on appeal."); Ferland Corp. v. Bouchard, 626 A.2d 210, 217 (R.I.1993) ("It is a well-settled rule of appellate practice that matters not brought to the attention of the trial justice may not be raised for the first time in this court on appeal."); Bouchard v. Clark, 581 A.2d 715, 716 (R.I.1990) ("It is an established rule of law in Rhode Island that this court will not consider an issue raised for the first time on appeal that was not properly presented before the trial court.").¹⁰

The following statement by former Chief Justice Weisberger in his treatise concerning appellate procedure well summarizes our position in this regard:

"The Supreme Court of Rhode Island has been steadfast in its adherence to the general proposition that no issues may be raised on appeal unless such issues were presented to the trial court in such a posture as to alert the trial justice to the question being raised." Joseph R. Weisberger, Rhode Island Appellate Practice, Rule 16.5 at 89 (1993).¹¹

In our view, this case falls squarely within the raise or waive rule; and we perceive absolutely no exceptional circumstances here indicating that said rule should be disregarded.

The plaintiff seeks to avoid the raise or waive rule by first claiming that the alleged failure of chapter 9 of title 44 to comport with the due process requirements of the Fourteenth Amendment constitutes a "jurisdictional infirmity." She then goes on to argue that when a statute allegedly contains such a "jurisdictional infirmity," a party is entitled to invoke the rule that an argument as to lack of subject matter jurisdiction may be raised at any time.¹²

We disagree with appellant's characterization. In our view, plaintiff's belatedly raised constitutional due process argument is not jurisdictional in nature. Cf. Sawyer v. Cozzolino, 595 A.2d 242, 244-45 (R.I.1991)

. It is certainly true that a claim of lack of subject matter jurisdiction may be raised at any time. LaPetite Auberge, Inc. v. Rhode Island Commission for Human Rights, 419 A.2d 274, 280 (R.I.1980); see also Rule 12(b)(1) of the Superior Court Rules of Civil Procedure. It is equally true, however, that that venerable principle has absolutely no bearing on the present situation. The term "lack of jurisdiction over the subject matter" means quite simply that a given court lacks judicial power to decide a particular controversy. See George v. Infantolino, 446 A.2d 757, 759 (R.I.1982); see also Laughlin v. Kmart Corp., 50 F.3d 871, 874 (10th Cir.1995); Cranston Teachers Association v. Cranston School Committee, 120 R.I. 105, 108-09, 386 A.2d 176, 178 (1978). In the present case, the Superior Court certainly had the power to hear the plaintiff's constitutional arguments if she had chosen to raise them in that forum. In other words, the Superior Court unquestionably had jurisdiction over constitutional arguments such as the one now espoused by the plaintiff, but she must be deemed to have waived those arguments by not raising them initially in the Superior Court.

For the reasons set forth herein, we affirm the judgment of the Superior Court. The record may be remanded to the Superior Court.

1.See G.L. 1956 chapter 9 of title 44 (since amended).

2. In her brief, plaintiff claimed that "while not raised below, [plaintiff's] argument that the provisions of R.I.G.L. [chapter 9 of title 44], violate her right to due process under the Fourteenth Amendment may be reviewed by this Honorable Court".

3. The plaintiff's brief to this Court focuses exclusively on her constitutional (Fourteenth Amendment due process) argument. Therefore, we need not and shall not address any of the statutory arguments that are contained in defendant's brief.

4.See § 44-9-25, which provides in relevant part:

"After one year from a sale of land for taxes, * * * whoever then holds the title acquired may bring a petition in the superior court for the foreclosure of all rights of redemption thereunder. The petition shall set forth a description of the land to which it applies, with its assessed valuation, the petitioner's source of title, giving a reference to the place, book, and page of record, and other facts as may be necessary for the information of the court."

5. Section 44-9-28 provides:

"After the return day fixed, to be at least twenty (20) days after the time of the actual issuance of notice, the court shall, if satisfied that the notice has been properly given, on motion of the petitioner enter an order defaulting all persons failing to appear, and decreeing that the petition as to them be taken as confessed * * *."

See also § 44-9-30 ("If a default is...