Providence County Superior Court (PC 16-2572) Netti C. Vogel
Plaintiff: John O. Mancini, Esq. Michael J. Farley, Esq.
Defendants: Lisa Fries, Esq. Samuel A. Budway, Esq.
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and
Gilbert V. Indeglia Associate Justice.
action challenging the assessment of alleged illegal taxes,
the plaintiff, Bluedog Capital Partners, LLC (Bluedog),
appeals from a judgment of the Superior Court granting the
motion to dismiss pursuant to Rule 12(b)(6) of the Superior
Court Rules of Civil Procedure filed by the defendants, John
A. Murphy, in his capacity as tax collector for the City of
Providence (the city); David Quinn, in his capacity as tax
assessor for the city; and Michael Pearis, in his capacity as
finance director for the city (collectively
defendants). This matter came before the Court on March
27, 2019, pursuant to an order directing the parties to
appear and show cause why the issues raised should not be
summarily decided. After considering the arguments set forth
in the parties' memoranda and at oral argument, we are
convinced that cause has not been shown. Thus, further
argument or briefing is not required to decide this matter.
For the reasons outlined below, we affirm the judgment of the
following facts, sparse as they are, have been gleaned from
Bluedog's complaint. On or about October 3, 2014,
Bluedog, a private lender, loaned $35, 000 to Fogliare Group,
LLC (Fogliare), in consideration of a first-priority mortgage
on Fogliare's real property, which has a street address
of 170 Bartlett Avenue, Providence, Rhode Island (the
property). Bluedog recorded the mortgage in the Providence
land evidence records. The property encompasses two lots:
Assessor's Plat 90, Lot 13, which is located within the
city (the Providence parcel); and Assessor's Plat 2-5,
Lot 1520, which is located within the City of Cranston (the
Cranston parcel). The city noticed a tax sale for the
Providence parcel in tax year 2015; and, thereafter, on July
1, 2015, it sold the Providence parcel at a tax sale, with a
collector's deed being recorded in the Providence land
evidence records on July 9, 2015. On June 2, 2016, Bluedog
filed a two-count complaint, seeking a declaration that
defendants had illegally assessed the Providence parcel
(Count I) and seeking injunctive relief against the sale of
the property (Count II). Bluedog alleged that its mortgage
was "subject to the tax sale[, ]" and that, in tax
year 2015, the total assessed value of the Providence parcel
was $102, 200.
24, 2016, defendants filed a motion to dismiss Bluedog's
complaint, pursuant to Rule 12(b)(6). In their memorandum in
support of the motion to dismiss, defendants argued that G.L.
1956 § 44-5-26 provides the exclusive procedures for the
tax-abatement relief that Bluedog sought and that Bluedog had
not complied with those procedures. Moreover, defendants averred
that, even if Bluedog sought to bypass those procedures by
invoking the Superior Court's equity jurisdiction under
§ 44-5-27, the three-month statute-of-limitations period
for such actions had expired; defendants alleged that Bluedog
had filed its complaint "more than seven (7) months
after the limitations period expired for the most recent tax
year at issue (2015) * * *." (Emphasis in
original.) Finally, defendants contended that there was
nothing for the Superior Court to enjoin because the tax sale
had already taken place.
Bluedog's memorandum in support of its opposition to
defendants' motion to dismiss, Bluedog contended that
"there are certain situations which have been recognized
in Rhode Island for bypassing the normal review procedures
set forth in * * * §§ 44-5-26 and 44-5-27."
Bluedog argued that one such case is where, as here, a tax is
alleged to be illegal.
November 17, 2016, a hearing on defendants' motion to
dismiss was held in Providence County Superior Court. At that
hearing, defendants began by arguing that the statute of
limitations for tax year 2015 had run on October 24, 2015,
and that the complaint, which was filed in June 2016, was
therefore untimely. They also averred that the complaint
merely alleged an overassessment because the property was at
least partially within the city's jurisdiction, and that,
even if the taxes were alleged to be illegal, Bluedog was
required to appeal the assessment to the board of tax
assessment review or else bring an action sounding in equity,
pursuant to § 44-5-27, in the Superior Court. The
defendants cited the Superior Court decision underlying this
Court's opinion in Narragansett Electric Company v.
Minardi, 21 A.3d 274 (R.I. 2011), in which the hearing
justice found that the Uniform Declaratory Judgments Act
could not be used to replace the procedures set forth in
§§ 44-5-26 and 44-5-27. See Minardi, 21
A.3d at 277.
defendants quoted this Court's opinion in Pascale v.
Capaldi, 95 R.I. 513, 188 A.2d 378 (1963), in which we
stated: "In our opinion the legislature did not intend
that a petition under the uniform declaratory judgments act
was to take the place of a taxpayer's suit and,
therefore, the Superior Court had no jurisdiction under the
act to grant the [taxpayer's] prayers."
Pascale, 95 R.I. at 514, 188 A.2d at 379. Finally,
defendants argued, and the hearing justice seemed to agree,
that, because the tax sale had already occurred, there was
nothing for the Superior Court to enjoin and, thus, there was
no relief that could be granted under Count II of the
responded by outlining the deferential standard that courts
give to plaintiffs on motions to dismiss in general, and
specifically in declaratory-judgment actions. Bluedog then
described the necessary elements to allege an illegal tax,
which includes situations where the taxing authority acted
without jurisdiction or where the tax was so palpably
exorbitant and excessive as to amount to constructive
fraud. Bluedog maintained that the tax in this
case fit the latter criterion because the building that the
city had taxed was located "entirely outside of the City
of Providence." The hearing justice then indicated that,
even if she were willing to give Bluedog the benefit of the
doubt regarding whether the taxes were illegal, the
three-month statute of limitations under § 44-5-27 had
clearly run by the time Bluedog filed its complaint. Bluedog
responded that the statute of limitations did ...