Supreme Court

No. 2015

- 48

- Appeal. ( PM 14

- 4830 )

NOTICE : This opinion is subject to formal revision before publication in the Rhode Island Reporter. Readers are requested to notify the Opinion Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence, Rhode Island 02903, at Telephone 222

- 3258 of any typographical or other formal errors in order that corrections may be made before the opinion is published. Patrick T. Conley :

v. :

Paul Fontaine
, et al

. :- 1

- Supreme Court

No. 2015

- 48

- Appeal. ( PM 14

- 4830 )

Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

O P I N I O N

Justice Robinson , for the Court. At issue in this c ase is the legal propriety of a

judgment allowing Bank of New York Mellon (the Bank) to redeem certain property that had

been sold at a tax sale

. The plaintiff, Patrick T. Conley
, appearing pro se , appeals from a

Providence County Superior Court judgment in which his “ Motion for E ntry of Default and Final

Decree ” with respect to the property at issue ( located at 1090 Joslin Road in Burri ll ville ) (the

Property) was denied
, and the Bank ’s Motion to File a Late Answer a nd its request to redeem the

Property were granted. Mr. Conley contends that the trial ju stice erred in allowing the Bank to

redeem eve n though it had been “ negligent ” w ith respect to filing its “Response to Petition to

Foreclose Tax Lien,” its Motion to File a Late Answer, and i ts entry of appearance ; he avers that

t he just

- referenced documents were filed improperly, in that the Bank did so only after the retur n
date specified in the “Petition to Foreclose Tax Lien
, ” and he further contends that the Bank has

“ failed to explain its tardiness

. ” This case came before the Supreme Court pursuant to an order

directing the parties to appear and show cause why the issues raised in this appeal should not be

Patrick T. Conley :

v. :

Paul Fontaine
, et al

. :- 2

-

summarily decided. After a close review of the record and careful consideration of the parties’

arguments (both written and oral), we are satisfied that cause has not been shown and that this

appe al may be decided at this time.

For the reasons set forth in this opinion, we vacate the judgment of the Superior Court

.

I

Facts and Travel
It is undisput ed that, on September 27, 2013, plaintiff purchased the Property at a tax

sale. Subsequently, o n October 1, 2014, plaintiff filed a “P etition to Foreclose Tax Lien” (the

Petition) in the Providence County Super ior Court , in which plaintiff sought to forec lose the

Bank ’s right of redemption with respect to the Property pursuant to G.L. 1956 § 44

- 9

- 25

. It is

also undisputed that, on October 7, 2014, the Petition provided notice to the Bank in the

following terms :

“PETITION TO FORECLOSE TAX LIEN PM No. 14

- 4830

“ TO ALL, WHOM IT MAY CONCERN, and to PAUL FONTAINE, SHERYL FONTAINE, BANK OF NEW YORK MELLON, JOHN A. DESANO, JR., ESQ., AND NASONVILLE FIRE DISTRICT

“ Whereas, a petition has been presented to said Court by PATRICK T. CONLEY, ESQ.[,] 1445 Wampano ag Trail, Suite 203 of East Providence, RI 02915 in the County of Providence and said State, to foreclose all rights of redemption from the tax lien proceedings described in said petition in and concerning a certain parcel of land situated in the County of Providence and in said State, bounded and described in said petition as follows:

“ That certain lot or parcel of land with all the buildings and improvements thereon situated at 1090 J oslin Road in the Town of Burr illville, County of Providence, State of Rhode Island, laid out and designated as Lot 19 on Assessor’s Plat 63.- 3

- “ 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 objection or defense to each part of said petition, in the office of the Superior Court in Providence on or before the 20 th 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 petit ion should not be granted.

“ Unless your appearance is filed by or for you, your default will be recorded, the said petition will be taken as confessed and you will be forever barred from contesting said petition or any decree entered thereon. ” (Emphasis in original.)

It is further undisputed that the Bank did not file an answe r on or before the twentieth day after

receipt of the Petition ( which would have been October 28, 2014)

. In the Bank ’s memorand um
filed pursuant to Article I, Rule 12(A) of the Supreme Court’s Rules o f Appellate Procedure, the

Bank described several communications between plaintiff and the Bank ’s local counsel which

took place between Octo ber 30 and November 6, 2014 in an attempt to reach an agreement as to

the redemption of the Property.
An Omnibus Calendar Assignment Form assigning plaintiff’s “ Motion for Entry of

Default and Final Decree ” for a hearing was filed on October 31, 2014

. 1 On Novembe r 10,
2014, Mr. Conley filed a “Motion for D ecree Pro Confesso, ” 2 which, if granted
, would have

resulted in a general default being recorded as to the Bank

. Thereafter , on November 11, 2014,

counsel for the Bank filed a n entry of appearance as well as its “Response to Petition to

1 Although the record indicates that plaintiff’s “ Motion for Entry of Default and Final Decree ” was filed and, ultimately, the judgment in this case referenced that m otion, there is no copy of the m otion in the record.

2 The most recent edition of Black’s Law Dictionary indicates that the arcane term “ pro confesso ” is derived from Rom an law and defines the term as meaning “ having confessed or admitted liability, as by failing to appear when required.” Black’s Law Dictionary 1400 (10th ed. 2014).- 4

-

Foreclose Tax Lien
, ” in which the Bank requested that the court “ permit redemption ” in an

amount to be determined by the court. 3

On November 12, 2014, a Motion to F ile a Late A nswer was filed on behalf of the Bank

.
On that same date , a brief hearing was held on plaintiff’s “ Motion for Entry o f Default and Final

Decree
, ” at the conclusion of which the trial justice continued the hearing until Decemb er 3 . On

the latter date
, a hearing was held on plaintiff’s “ Motion for Entry of Default and Final Decree ”

and “Motion for Decree Pro Confesso ” as well as on the Bank ’s M otion to File a Late A nswer

and its “Response to Petition to Foreclose Tax Lien, ” which contained an off er to redeem upon

terms to be fixed by the court.

T he trial justice rendered a bench decision on December 10, 2014

. In the course of

recounting the background facts , the trial justice asked counsel for the Bank the following

question regarding the Bank’s failure to have respond ed to the Petition within the time frame

indicated therein : “What’s the explanation for the documents not being forwarded in a timely
manner?” Counsel for the Bank respo nded: “Your Honor, I apologize for not having an
explanation for why they were inadvertently misplaced.” In his bench decision, the trial justice

ultimately concluded that, pursuant to § 44

- 9

- 29, 4 the court was not barred “from exercising its
discretion to permit a party to file an answer out of time.” H e further stated as follows in

3 The record states that the documents referenced in the text were filed on November 11, 2014, although we note that that day was a holiday.

4 General Laws 1956 § 44

- 9

- 29 provides in pertinent part as follows :

“Any person claiming an interest, on or before the return day or within that further time as may on moti on be allowed by the court, shall
, if he or she decides to redeem, file an answer setting forth his or her right in the land, and an offer to redeem upon the terms as may be fixed by the court.”- 5

-

reference to plaintiff’s “ Motion for Entry of Default and Final Decree : ” “U nder the

particularized circum stances of this case, the [c] ourt [ cou ld not ], in its judgment, grant plaintiff

[a] drastic remedy

. ” Additionally, t he trial justice granted the Bank ’s Motion to File a Late

Answer as well as the Bank ’s request for redemption. The trial justice continued the case for one

week so that the parties could “ attempt to resolve the cost of redemption due to plaintiff. ” On
December 17, 2014, the parties appeared before the trial justice and stated that they had come to

an agreement that the amount of redemption would be $8,230.31.

A judgment entered on January 21, 2015 providing that: (1) plaintiff’s “ Motion for Entry

of Default and Final Decree ” was denie d; (2) the Bank ’s Motion to File a Late Answer and

r e quest to redeem the property were granted; and (3) th e amount to be paid by the Bank to
redeem the property was set at $8,230.31. The plaintiff filed a timely appeal.

I I

Issues on Appeal
Mr. Conley contends on appeal that the Superior Court erred : (1) in allowing the Bank to

file an untimely answer ; and (2) in allowing the Bank to redeem the Property.

III

Standard of Review
It is a basic principal that we review matters of statutory construction in a de novo

fashion. Shine v. Moreau , 119 A.3d 1, 9 (R.I. 2015 ). And it is similarly well established that
,

“ when the language of a statute is clear and unambiguous, this Court must interpret the statute

literally and must give the words of the statute their plain and ordinary meanings .” Id. (internal

qu otation marks omitted); see Kayak Centre at Wickford Cove, LLC v. Town of Narragansett
, 116 A.3d 250, 253 (R.I. 2015) ; Sindelar v. Leguia , 750 A.2d 967, 970 (R.I. 2000) . We have also- 6

-

stated that only when a statute is ambiguous will we “ apply the rules of statutory construction

and examine the statute in its entirety to determine the intent and purpose of the Legislature. ”

State v. Diamante , 83 A.3d 546, 548 (R.I. 2014) (internal quotation marks omitted).

IV
Analysis

In Rhode Island
, “an owner’s right to redeem property after a tax sale is governed by

chapter 9 of title 44 [of the General Laws] .” Johnson v. QBAR Assoc iates , 78 A.3d 48, 52 (R.I.

2013). Within one year following a tax sale, “ a person holding an interest in the proper ty has an

absolute right to redeem the property by paying the purchase price to the buyer at the tax sale or
the holder of the tax deed, along with any accumulated fees, taxes, and penalties.” Id. ; see § 44

-

9

- 21 . If, within a year of the tax sale, the pr operty has not been redeemed
, “the purchaser at the

tax sale may file a petition in Superior Court to foreclose upon any interested party’s right of
redemption.” Izzo v. Victor Realty
, 132 A.3d 680, 685 (R.I. 2016) (internal quotation marks

omitted) ; see § 44

- 9

- 25(a). The purchaser is then required to “ send notice to all interested

parties, including the mortgagee. ” Izzo
, 132 A.3d at 685 ; see § 44

- 9

- 27. Once notice of the
petition has been provided, “any interested party may redeem the property by filing an answer to

the petition along with an offer to redeem on or before the specified return day, which may be

fixed no sooner than twenty days after the is suance of the notice.” Johnson , 78 A.3d at 52 ; see
§ 44

- 9

- 29. However, if an “ in terested party fails to do so, a decree shall be entered which shall

forever bar all rights of redemption. ” Izzo
, 132 A.3d at 685 (internal quotation marks omitted) ;

see § 4 4

- 9

- 30.- 7

- A

The Bank’s Motion to File a Late Answer
The first issue with which we are confronted is whether the trial justice had the

discretionary authority to grant the Bank’s Motion to File a Late Answer in spite of the fact that

said motion was not filed on or before the twentieth day after receipt of the Petition ( viz.
, October 28, 2014)

. Assuming w ithout deciding that a motion to file a late answer could be entertained by the

court after the return date, such a motion would have been unavailin g in the instant case

— due to

the fact that , as expressly indicated by counsel for the Bank at the hearing on December 10,

2014 , he had no “explanation for why [the documents] were inadvertently misplaced

. ” 5 See

Albertson v. Leca , 447 A.2d 383, 386 n.2 (R. I. 1982) (noting that the defendants had not asserted

“ any extenuating circumstance for their failure to file within the statutory time limit” both their

specifications of title defects and motion for extension of time as a factor in determining whether

th e defendants had waived their right to challe nge the validity of a tax title )

. In view of the fact

that no go od cause was shown for the Bank ’s failure to comply with the deadline se t out in the

Petition, the Bank ’s Motion to File a Late Answer should have been denied. See id. ; see also

Karay i annis v. Ibobokiwe , 839 A.2d 492, 496 (R.I. 2003)

.

B
The Bank’s Redemption of the Property
The plaintiff contends that the trial justice erred in allowing the Bank to redeem the

Property. He also contends that the Bank was already “in default” before the initial hearing on

5 It will be recalled that counsel for the Bank made the quoted statement in response to the following inquiry by the trial justice: “What’s the explanation for the documents not being forwarded in a timely manner?”- 8

-

November 12, 2014 because the Bank did not file its Motion to File a La te Answer until after the

return date set out in the Petition.

Given the fact that , as explained above
, the Bank ’s Motion to File a Late Answer should

have been denied
, the Bank was in default under § 44

- 9

- 29 because of its failure to file an

an swer setting forth its right to the Property on or before the return date provided for in the

Petition. See gene rally Karay i annis , 839 A.2d at 496 (stating that the defendant was in default

because she failed to take any steps to redeem the proper ty on or before the return date )

. Section

44

- 9

- 30 provides that
, if an interested party fails to file an answer along with an offer to redeem
on or before the specified return day, “ a decree shall be entered which shall forever bar all rights
of redemption.” S ee Izzo
, 132 A.3d at 685

. Accordingly, the Bank should not have been

permitted to redeem the Property
, and a decree should have been entered barring the Bank ’s right

of redemption

.
V

Conclusion
For the reasons stated in this opinion, we vacate the judgment of the Superior Court. We

remand the record to that t ribunal for entry of judgment in accordance with this opinion.

### R HODE 

### I SLAND 

### S UPREME 

### C OURT 

### C LERK 

### ’ S 

### O FFICE



### Clerk’s Office Order/O pinion Cover Sheet

TITLE OF CASE: Patrick T. Conley v. Paul Fontaine, et al.

CASE NO : No. 20 1 5

- 48

- Appeal

. ( PM 14

- 4830 )

COU RT: Supreme Court

DATE OPINION FILED: May 9, 2016

JUSTICES: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, J J.

WRITTEN BY: Associate Justice William P. Robinson III

SOURCE OF APPEAL: Providence County Superior Court

JUDGE FROM LOWER COUR T :

Associate Justice Brian Van Couyghen

ATTORNEYS ON APPEAL :

For Plaintiff : Patrick T. Conley , Esq.

For Defendant s : Samuel C. Bo durtha , Esq.