Supreme Court

No. 2014-157-Appeal.

(WC 11-252)

No. 2014-158-Appeal.

(WC 12-105)

No. 2014-160-Appeal.

(WC 13-152)

Laurence F. Whittemore, III et al. :

v. :

David B. Thompson, in his capacity as Tax 

Assessor for the Town of Westerly.

:

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 Tel. 222-3258 of any typographical or other formal errors in order that 

corrections may be made before the opinion is published.
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Supreme Court

No. 2014-157-Appeal.

(WC 11-252)

No. 2014-158-Appeal.

(WC 12-105)

No. 2014-160-Appeal.

(WC 13-152)

Laurence F. Whittemore, III et al. :

v. :

David B. Thompson, in his capacity as Tax 

Assessor for the Town of Westerly. 1

:

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

O P I N I O N

Justice Flaherty, for the Court. This case is before the Court on appeal by the 

defendant, David B. Thompson, tax assessor for the Town of Westerly, from a judgment of the 

Superior Court in favor of the plaintiffs, Laurence F. Whittemore, III and Kathleen M. 

Whittemore. The trial justice granted the plaintiffs’ three petitions for relief from property tax 

assessments on their home at 5 Manatuck Avenue (the subject property) for the years 2009, 

2010, and 2011. The petitions were consolidated for a nonjury trial and the appeals have also 

been consolidated. The defendant asserts that the trial justice erred: (1) in failing to dismiss the 

Whittemores’ petitions after finding that the Whittemores did not prove the fair market value of

 1 The original defendant in these cases was Charles E. Vacca, in his capacity as tax assessor for 

the Town of Westerly. Mr. Thompson is the new tax assessor and was substituted as the party 

defendant after these appeals were filed. See Rule 25 of the Superior Court Rules of Civil 

Procedure.
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their property; (2) when she rejected the opinions of both parties’ experts, but instead devised her 

own method for determining the fair market value of the property; (3) when she rejected the 

2008 appraisals of the property based on a flawed generalization; and (4) in failing to dismiss the 

third petition challenging the town’s 2011 assessment because she erroneously found that the 

town’s appeals forms did not include mandated statutory language. For the reasons set forth in 

this opinion, we affirm in part and vacate in part the judgment of the Superior Court.

1

Facts and Travel

“[I]n this world nothing can be said to be certain, except death and taxes.”2

The Whittemores moved quickly when they heard that the property at 5 Manatuck

Avenue was going to be listed for sale. Each had spent significant amounts of time in Westerly, 

both growing up and as adults, bringing their children to Mr. Whittemore’s parents’ home in the 

Weekapaug section of town during the summers. In the summer of 2006, at a time when the 

Whittemores’ children were young teenagers, the couple began looking for a property to 

purchase in the Watch Hill section of Westerly because their children had enjoyed past summers 

with their friends there. They viewed at least fifteen properties between 2006 and 2008, hoping 

to find a property that would not require renovation, because they believed they had only a few 

summers remaining before their children went to college. The Whittemores made offers on two 

properties, one for $3 million and one for $5 million, but both were rejected by the sellers.

 2 Benjamin Franklin, Letter to Jean-Baptiste Leroy, in Bartlett’s Familiar Quotations 303 

(Geoffrey O’Brien, ed., 18th ed. 2012).
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When their broker alerted them that the property at 5 Manatuck Avenue was going to be 

listed later in June, the Whittemores jumped at the opportunity to preempt any competition. The

house on the property, which was built in 2002, was newer and larger than the other homes they 

had seen, but it nonetheless fit with the character of the neighborhood. The lot, which was about 

100 yards from the beach, was slightly over an acre in size and the two-story house had six

bedrooms, six bathrooms, and ocean views from the second floor. The $7.85 million asking 

price was much higher than the Whittemores had anticipated paying, but they made an offer of 

$7.1 million because the property was superior to other properties and fit their needs. Mr. 

Whittemore believed they were offering an amount in excess of the fair market value, but he felt 

that it was worth the extra expense because, at that time, housing prices had been increasing for 

many years, and he planned to keep the property in the family.

3 The sellers accepted the 

Whittemores’ offer and they entered into a purchase and sale agreement for the property in June 

2008.

By the fall of 2008, the financial climate had changed radically. The Whittemores 

initially had planned to finance most of the sale price by liquidating some investment accounts; 

however, in September 2008, the liquid assets available to the Whittemores, like so many others, 

had dropped dramatically. As a result, to finance the sale by the agreed closing date, the 

Whittemores came to a financing arrangement with the sellers, whereby $4 million was financed 

by the sellers and they paid the remaining $3 million. Shortly thereafter, however, the 

Whittemores paid off the personal loan obtained from the sellers by securing a loan from 

 3 Furthermore, the Whittemores believed that it was worthwhile to offer a price that they 

believed would prevent the sellers from offering the house to a larger group of buyers because 

the house had yet to be listed on the Multi-State Listing Service.
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Washington Trust Company. To approve the loan, Washington Trust obtained two appraisals,

valuing the property at $6.9 million and $6.5 million.

In 2009, the Town of Westerly Tax Assessor, Charles Vacca, conducted a statutorily 

mandated townwide revaluation;

4 he reassessed the Whittemores’ property at $5,976,600 on 

December 31, 2009 (the effective date), an assessment substantially higher than the assessed 

value of $5,260,900 that the property had when it was purchased by the Whittemores. The 

Whittemores objected to that assessment and, after an informal meeting with the tax assessor in 

the spring of 2010, the town agreed to lower the assessment slightly to $5,905,000.

The Whittemores, still dissatisfied with the assessment, hired Stephen McAndrew, a 

licensed real estate appraiser who had experience in tax appeals. McAndrew filed an “Annual 

Return” with the tax assessor on behalf of the Whittemores on October 26, 2010, and he filed a 

formal appeal with the tax assessor the following day. After Vacca denied the appeal, the 

Whittemores appealed his decision to the board of assessment review. The Whittemores also 

appealed the 2010 and 2011 assessments, which remained the same amount as the 2009 

assessment. Each year, plaintiffs filed an “Annual Return,” but after the March 15 yearly 

deadline, set forth in G.L. 1956 § 44-5-15. The board denied each appeal, and the Whittemores 

filed separate petitions in the Superior Court to reduce the tax assessment for each of the three 

years at issue.

 4 General Laws 1956 § 44-5-11.6(a) required that “beginning on December 31, 2000, the 

assessors in the several towns and cities shall conduct an update as defined in this section or shall 

assess all valuations and apportion the levy of all taxes legally ordered under the rules and 

regulations * * *; provided, that the update or valuation is performed in accordance with the 

following schedules: * * *.” Westerly was scheduled to conduct an “Update” of the assessments 

in 2003 and 2006 and a “Revaluation” in 2009. Id. at § 44-5-11.6(a)(2)(i). More detailed 

explanations of assessment updates and revaluations are related by the expert testimony, infra.
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In April 2013, a three-day trial began in the Superior Court on the three consolidated taxappeal petitions. The trial justice acknowledged that the petition for appeal from the 2011 tax 

assessment had been so recently filed that the town had not had the opportunity to answer the 

petition; as a result, the parties agreed to address the issue of the town’s affirmative defense—

that the Whittemores had failed to timely file an “Annual Return”—in posttrial briefing. In the 

prosecution of their case, plaintiffs offered three witnesses: Mr. Whittemore, McAndrew, and 

Vacca. The defendant called Vacca, Stephen Ferreira, the District Manager of Vision 

Government Solutions, a company specializing in mass appraisals, and David Thompson, the 

new town tax assessor.

Stephen McAndrew’s Testimony

McAndrew testified that he conducted a retrospective appraisal of the property around the 

end of 2010, to determine its value as of December 31, 2009. In his appraisal, he described the 

Watch Hill neighborhood as characterized by mini-estates, with many properties being over an 

acre “with supporting improvements best-termed mansions.” McAndrew described the 

prevailing market conditions as, “[t]he subject neighborhood is reflecting both stabilization and 

declining values. * * * Values exceeding [$1,500,000] are felt to continue to decline. Viewing 

into the foreseeable future, decline in the area is estimated on an annual basis to be 6%.” At trial, 

McAndrew said that hindsight clarified market trends, but that his conclusion was ultimately the 

same as in 2010, explaining that values reached a peak in 2005, remained stable until the 

beginning of 2008, and then showed an “absolutely definable loss in value in the marketplace,” 

which McAndrew projected to be on an annual basis of about 6 percent, until around 2012, when 

values began to stabilize. He also testified that, in Watch Hill, the lower-value properties 

stabilized earlier, but the upper-level property values had not yet done so.
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McAndrew testified that the most accurate method of measuring value is by using the 

“comparable sales approach,” which he employed in his appraisal of the subject property.

Because of the scarcity of sales in the area resulting from the prevailing market conditions, he 

said that he was required to look beyond Watch Hill to find comparable sales that represented 

similar locational characteristics, physical attributes, and value. He used three “comparables” in 

his appraisal, one located in Jamestown, one in Newport, and one in the nearby Shelter Harbor 

neighborhood of Westerly. He said he believed that all of the properties were in very desirable 

locations, either near or on the water, and that their sale dates were close to the target appraisal 

date of December 31, 2009. After making adjustments to the sale values for different locations 

and amenities, McAndrew determined that the adjusted values of the properties ranged from $4.6 

million to $5.1 million, and he concluded that the direct sales method indicated an estimated fair 

market value of $4.9 million for the subject property.

McAndrew also discussed several properties in the Watch Hill neighborhood that he 

decided not to use as comparables. The property at 7 Manatuck Avenue was assessed in 2009 at 

$6,498,200, following a sale of that property on April 18, 2008, for $6 million. He said he chose 

not to use that property as a comparable for the same reason that he would never use the 

Whittemores’ purchase price as a comparable for other properties; because it was an aggressive 

price that could not be justified in the market. He explained that he had previously appraised 7 

Manatuck Avenue in June 2007, before it was sold, for $4.4 million. Furthermore, the house at 7 

Manatuck Avenue was completely rebuilt in September 2009 at a cost of $1.2 million, which,

McAndrew testified, created a great deal of speculation about how much value was added by the 

improvements and reduced its usefulness as a comparable sale.
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There were also three neighboring properties that had not been sold in the relevant time 

frame, and so McAndrew did not consider them as comparable sales. These properties were: (1) 

15 Ocean View Highway, located just two houses away from 5 Manatuck Avenue; (2) 17 Ocean 

View Highway, immediately adjacent to plaintiffs’ property and the property from which 5 

Manatuck Avenue was subdivided in 2002; and (3) 8 Manatuck Avenue, located across the 

street. He noted that the assessment in each of those properties had been reduced in 2009 from 

its 2006 assessed values.5 McAndrew believed the reductions resulted both from a reflection of 

the market downturn and because no improvements were made to the premises during that time.

When asked how a review of those three properties affected his opinion of the value of 5 

Manatuck Avenue, McAndrew testified, “[it] would tell you, as it’s the charge of the assessor to 

be equitable, that using these neighboring properties, if the trend is down, then * * * the 

Whittemores’ assessment * * * likely should have come down.” McAndrew further testified that 

the increase in the assessed value in 2009 was solely attributed to the sale price because it was 

not attributed to any improvements after the purchase and was, therefore, “actually 

unprecedented anywhere.”

Stephen Ferreira’s Testimony

Stephen Ferreira testified for defendant as an expert in mass appraisals and about his 

direct involvement in the 2009 townwide appraisal. Ferreira explained that the result of a mass 

appraisal was primarily derived from sales analysis; however, many other factors go into the 

ultimate assessment. Mass appraisals, he said, are unique because the process is designed to 

determine market value of all the property in a town using a consistent, standardized method in 

 5 15 Ocean View Highway was assessed in 2006 at $6,398,000 and reassessed in 2009 at 

$5,893,000. 17 Ocean View Highway was reduced in value between 2006 and 2009, from 

$5,336,200 to $4,920,900. 8 Manatuck Avenue was a large oceanfront lot with unobstructed 

views of the ocean and was assessed in 2006 at $8,774,500 and reduced in 2009 to $8,253,700.
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an effort to establish equity across the tax base.6 Ferreira said that he had been involved in 

townwide appraisals in many municipalities throughout southern Rhode Island and that he 

believed the Watch Hill neighborhood to be a premier location in the state.

Ferreira explained that the value of each property is designated by employing several 

factors, including the size and character of the lot, the level of development and landscaping, the 

views, etc.7 The property received an adjustment of 9.99 for the character of the neighborhood 

because “[t]his is one of the highest neighborhoods in the Westerly program, and so that’s giving 

a weight of essentially ten times the base price.” The building value was similarly calculated, 

using several factors such as the character of its exterior walls, the type of house, number of 

rooms, number of stories, age, condition, and other amenities.8

The process included a computer analysis of all the sales in Westerly to create a model of 

property values. Ferreira explained, “[t]he model is derived from the sales, and it’s done in a 

modeling format to ensure that whatever tables are set up can be applied across the [b]oard to the 

non-sale properties in a consistent way.” After statistical analyses are run on the sales, the model 

can identify “outliers,” either sales where someone got a very good deal or where someone paid 

more than it was objectively worth. Ferreira testified that outliers were not uncommon in high-

 6 Thompson, the current tax assessor, similarly testified that the goal of mass appraisals and fee 

appraisals is the same, but that the town had the additional obligation to be equitable across the 

tax base in mass appraisals. Fee appraisals are individual appraisals conducted on behalf of a 

particular party such as a bank or an estate.

7 The subject property was specifically designated as a single-family property, with the size of 

the lot calculated as 44,001 units, and a particular unit price of $3.05 for the size of the lot, which 

Ferreira explained was the same unit price assigned to every property of that size anywhere in 

town. The property also received a value of 3.00 for the “C Factor,” for condition, based on the 

property’s views and other amenities. In comparison, the oceanfront property across the street, 8 

Manatuck Avenue, received a 4.50 for the C Factor because of its superior ocean views with no 

possibility of obstruction.

8 Ferreira said that the values assigned for several factors would be multiplied together to reach a 

land value for 5 Manatuck Avenue of $4.8 million and a total building value of $1,082,100.
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end markets because “people will buy homes and completely gut them and redo them to fit their 

own tastes because they have the finances and ability to do that.”

He confirmed that the sale of 5 Manatuck Avenue for $7.1 million was such an outlier.

However, the market in 2009 was difficult to model, he said, because another characteristic of 

high-end markets was that when the market crashes, as it did in 2008, properties are not put up 

for sale at the same rate as properties that are in lower value ranges. He said that there were 

fewer sales in the higher price ranges because people “had the ability to hold onto properties for 

extended periods of time” and wait until the market recovered. To make up for the insufficient 

sales data, the assessors had to look at other years, such as sales that occurred in 2008.

Ferreira agreed with McAndrew’s assessment that the 2008 market experienced a 6

percent decline, saying, “I think that’s a reasonable number in terms of what was going on in that 

time period.” Yet, he did not apply a 6 percent reduction to everything “because each 

community is complex, it has different aspects. * * * They’re all very different areas, and each 

one is changing differently based on the market.”

Charles Vacca’s Testimony

Vacca testified that he was responsible for fixing assessments on all of the properties in 

Westerly and that the town had been required to conduct “revaluations” of all properties every 

three years since approximately 1998. The applicable statute required full revaluations in 2000 

and 2009, involving the inspection and measurement of every property, and statistical updates in 

2003 and 2006.9

 9 Vacca testified that full revaluations differ from statistical revaluations in that he would 

physically visit each property, measure and characterize the physical appearance, and try to go 

into as many properties as possible. Statistical revaluations relied nearly entirely on modeling 

sales and a mathematical approach to valuation.
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Vacca testified that a sale is the best indication of property value and that he gives 

significant weight to sales data in doing assessments. Because the town does revaluations so 

frequently, Vacca’s office tracked sales continuously, receiving each new deed to update the

office records on ownership and sales values. He testified about the importance of obtaining 

information about sales:

“It’s incumbent upon an assessor’s office to be aware of what 

transpired basically in every sale if you can possibly do that, and 

that’s what we do. * * * [W]hen you get certain sales as we’ve 

talked about as being maybe outliers, we take a step further to find 

out, you know, what happened in this sale that we might be 

missing.”

Vacca agreed with McAndrew and Ferreira that a particular problem arises with sales values in 

the high-end market because some people were willing to spend an exorbitant amount of money 

to get the exact house they desire. He said that, when a sale is for a vastly greater amount than 

sales of neighboring properties, it would be unjust to raise neighboring assessments in response 

to that sale. Vacca testified that, when he met with Mr. Whittemore in April 2010, he was aware 

that the $7.1 million sales price was extremely high and that an assessment reflecting that sales 

price would be unfair, but he did not recall investigating the reasons behind the high sale price.

He said that his office “recognize[d] that there was activity on Manatuck that we felt as though 

that the values could be substantiated.” He recalled making a slight reduction to the building 

portion of the assessment after meeting with Mr. Whitemore, but could not remember why he 

made that adjustment.

Vacca did not agree with McAndrew’s approach of using properties that were beyond the 

Watch Hill area. He said that this was problematic because those properties could not be reliably 

used to determine value; he said that he never had looked outside of the Westerly area to assess 

properties in town. To compensate for the paucity of sales in the area around the time of the
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2009 revaluation, Vacca said that he “looked at overall trends that took place, and we obviously 

looked at the two sales that we had on Manatuck, and we adjusted them.” Vacca acknowledged

that the sale of 7 Manatuck Avenue was an outlier, based on the fact that it sold for $6 million, 

substantially more than the $4.9 million assessment, and then the purchasers spent well over $1 

million to rebuild the house. When asked why he gave the property at 8 Manatuck Avenue a 

lower assessment in 2009 than in 2006, Vacca responded that, 

“at that point in time I had no waterfront oceanfront sales in the 

town. * * * [I]n this business, you absolutely need sales to justify 

your assessment. * * * You still have to defend what you do in 

value, and we did reduce that; I did not have the sales to defend an 

$8.8 million sale.”

Vacca then conceded that for each of the properties for which the town lacked comparable sales, 

his office reduced the assessment from 2006 by about 6 percent, based on a “general decline in 

the market.”

When asked about the two appraisals obtained by Washington Trust, Vacca said that he 

did not see them until after the Whittemores initiated their appeals, but that he believed those 

appraisals supported his assessment. Each appraisal used comparable sales from late 2007 to

early 2008, but, on cross-examination, Vacca acknowledged that it was not apparent whether the 

appraisers made any adjustments for the market downturn by October 2008, when the 

Washington Trust appraisals were conducted. Vacca noted that several of the sales used in the 

bank appraisals were problematic. 2 Overlook Drive in Westerly was used as a comparable in 

both appraisals. Vacca said, “[K]nowing what I know about 2 Overlook and the sale and the 

circumstances of the sale, I would never have used those in any appraisal.” Vacca acknowledged

that the use of that property as a comparable skewed the fair market value estimates of both 

appraisals upward.
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David Thompson’s Testimony

Finally, Thompson, the new assessor, testified as an expert in real estate appraisals. He 

testified that, although appraisers endeavored to obtain comparable properties with the closest

sale date to the date of the appraisal, he considered the date of the sale to be less important than 

the location of the property. Therefore, he said, he would not have made use of the comparables 

used by McAndrew in appraising 5 Manatuck Avenue. He said that he did not believe there had 

been a downturn in the economy in early 2008, and that Mr. Whittemore’s own testimony 

demonstrated that there was a competitive market for high-end homes at the time that he 

purchased the subject property. However, he conceded that there was a real decline in the 

market in the fall of 2008 that continued into 2009.

The Trial Justice’s Decision

The trial justice issued a written decision in December 2013, granting judgment in favor 

of plaintiffs in all three appeals. In a comprehensive decision, the trial justice discussed the 

evidence presented in significant detail and noted “that each of the witnesses before the [c]ourt 

appeared to be credible, prepared, and well-spoken.” In analyzing the evidence, however, the 

trial justice found Vacca’s opinion as to the value of plaintiffs’ property to be “arbitrary and 

erroneous.” She concluded that plaintiffs had sustained their burden of proving that their 

property was overvalued by the tax assessor.

Based on the evidence submitted at trial, the trial justice found that the 2008 collapse of 

financial markets “stifled the national and state housing markets in general and the upscale 

Watch Hill market in particular.” There was evidence of the decline in market values in the 

Watch Hill neighborhood from lowered assessments on the three homes in the immediate 

vicinity of the subject property. She noted that plaintiffs’ assessment actually increased by 12.2 
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percent, “[i]n stark contrast” to those neighboring properties that, at the same time, had 

assessments decrease by an average of 7.1 percent.

Nevertheless, in determining plaintiffs’ damages, the trial justice rejected the valuation 

offered by plaintiffs’ expert of $4.9 million because she found “McAndrew’s use of comparables 

outside Watch Hill [to be] questionable.” She found that several of the expert witnesses, 

including McAndrew, testified to the unique amenities and luxuries found in Watch Hill, and that 

those amenities were not adequately accounted for by his choice of comparable sales. Even 

though she did not accept McAndrew’s methodology, the trial justice nonetheless determined 

that both McAndrew and Vacca had testified credibly that the real estate market sustained a 

general annual decline of 6 percent. She found that “the appropriate measure of damages for this 

outlier is a 6% decrease from the previous assessed value.” She further noted that his conclusion 

was “buttressed by the average rate of decline in assessments of nearby, albeit relatively 

superior, properties * * *.” Therefore, the trial justice determined that the property should have 

been assessed at $4,945,246 on December 31, 2009, and that that value should have been carried 

over to the next two assessments for 2010 and 2011.10

With respect to plaintiffs’ failure to timely file an account, the trial justice observed that it 

was undisputed that plaintiffs failed to comply with this requirement on a timely basis for any of 

the three tax years at issue. However, she declined to dismiss any of their petitions. For the 

2009 assessment, she found that plaintiffs were not obligated to file an account because the 

assessed value had increased since the prior year’s assessment. She found that the tax assessor 

waived his objection to the appeal of the 2010 assessment because he failed to raise the untimely 

 10 She arrived at this value through the following computation: $5,260,900 – 315,654 (.06 x 

5,260,900) = $4,945,246. She further concluded that plaintiffs were overassessed $959,754 

annually and were entitled to damages to recover overpayments, with 12 percent statutory 

interest accruing as of the dates each of their quarterly payments was made.
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filing as an affirmative defense. Finally, she determined that the tax assessor was estopped from 

raising that affirmative defense as to either the 2010 or 2011 petitions, because the forms 

provided to taxpayers claiming appeals did not conform to the statutory requirements contained 

in § 44-5-26(b). Specifically, the trial justice determined that the forms used by the Westerly tax 

assessor did not inform taxpayers of the necessity of filing a timely account and, thus, “lured the 

Whittemores into a false sense of security and, as a result, they failed to meet the March 15th 

deadline.”

The defendant timely appealed each of the three cases.

2

Issues on Appeal

The defendant raises four charges of error that may be grouped for our purposes under 

two main issues on appeal. First, he contends that the trial justice erred by rejecting all expert 

assessments and appraisals and applying her own methodology in arriving at a value for the 

plaintiffs’ property. 

Second, defendant argues that the trial justice erred in refusing to dismiss plaintiffs’ 

petition challenging their 2011 assessment because plaintiffs had actual notice of the deadline to 

file the required annual account.

3

Standard of Review

“We accord great deference to the findings of fact of a trial justice sitting without a jury, 

and will disturb such findings only when the justice misconceives or overlooks material evidence 

or otherwise is clearly wrong.” Granoff Realty II, Limited Partnership v. Rossi, 823 A.2d 296, 

298 (R.I. 2003) (citing Ferland Corp. v. Bouchard, 626 A.2d 210, 214 (R.I. 1993)). “[The] 
- 15 -

resolution of mixed questions of law and fact, as well as the inferences and conclusions drawn 

from the testimony and evidence, are entitled to the same deference.” Wickes Asset 

Management, Inc. v. Dupuis, 679 A.2d 314, 317 (R.I. 1996) (quoting Warwick Musical Theatre, 

Inc. v. State, 525 A.2d 905, 909-10 (R.I. 1987)).

Our determination of whether the tax assessor utilized the requisite application form and 

whether the General Assembly provided a remedy for using the wrong language is a question of 

statutory construction. “Questions of statutory interpretation are reviewed de novo by this 

Court.” GSM Industrial, Inc. v. Grinnell Fire Protection Systems Co., 47 A.3d 264, 267-68 (R.I. 

2012) (quoting D'Amico v. Johnston Partners, 866 A.2d 1222, 1224 (R.I. 2005)). “[I]t is well 

settled 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.” 

Cummings v. Shorey, 761 A.2d 680, 684 (R.I. 2000) (quoting State v. Flores, 714 A.2d 581, 583 

(R.I. 1998)). “In matters of statutory interpretation our ultimate goal is to give effect to the 

purpose of the act as intended by the Legislature.” GSM Industrial, Inc., 47 A.3d at 268 (quoting 

D’Amico, 866 A.2d 1224).

4

Analysis

A

Fair Market Value

The defendant first argues that plaintiffs were burdened with proving the fair market 

value of their property and, when the trial justice rejected their expert’s appraisal, plaintiffs by 

necessity failed to satisy that burden. He maintains that, as a result of that failure, the trial justice 

should have ended her inquiry then and there and dismissed plaintiffs’ appeals. The defendant 
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also argues that the trial justice misconceived the testimony offered by Vacca and Ferreira when 

she did not accept their comparable sales method and erred as a matter of law when she applied a 

6 percent statewide annual depreciation rate to the value of the property. 

The plaintiffs respond that defendant’s arguments relate to the weight to be given to the 

evidence and not to any errors of law made by the trial justice. They argue that the trial justice 

was not required to accept the tax assessor’s valuation, even after rejecting portions of 

McAndrew’s testimony, and that she was free to consider all the evidence in the case, including 

evidence showing the decreased valuation of neighboring properties. They further argue that the 

tax assessor erroneously increased the value of their property in 2009 while decreasing the value 

of neighboring properties, and that the trial justice was justified in finding that the tax assessor 

acted arbitrarily. 

Defining Burden of Proof

“All real property subject to taxation shall be assessed at its full and fair cash value, or at 

a uniform percentage of its value, not to exceed one hundred percent (100%), to be determined 

by the assessors in each town or city * * *.” Section 44-5-12(a). This Court has defined “full 

and fair cash value” as “that price the property would probably bring in a transaction in a fair 

market between a willing seller and a willing buyer.” Cummings, 761 A.2d at 686 (quoting 

Rosen v. Restrepo, 119 R.I. 398, 400, 380 A.2d 960, 961 (1977) and Allen v. Bonded Municipal 

Corp., 62 R.I. 101, 105, 4 A.2d 249, 251 (1938)). “[T]ax assessors are entitled to a presumption 

that they have performed this official act properly.” Granoff Realty II, Limited Partnership, 823 

A.2d at 298 (citing Ferland Corp., 626 A.2d at 215). 

In Nos Limited Partnership v. Booth, 654 A.2d 308, 310 (R.I. 1995), we outlined the 

appropriate procedure for challenging a tax assessment:
- 17 -

“the assessor must first present his or her conclusion as to fair 

market value and the procedure used to arrive at such fair market 

value of the subject property. If the taxpayer challenges either the 

legality of the assessment or claims that the assessor used an 

inappropriate fair market value of the subject property, the burden 

will be on the taxpayer to present evidence of fair market value.”

The defendant urges us to construe this language as establishing a burden on plaintiffs “to prove 

the fair market value of its own property,” based on our decision in Harvard Pilgrim Health Care 

of New England, Inc. v. Gelati, 865 A.2d 1028, 1036 (R.I. 2004). There, we said that “Harvard 

Pilgrim’s burden in this case required more than discrediting the city’s depreciation scheme, or 

the admission by one of its witnesses that the formula did not reflect precise fair market value. 

The plaintiff also had to prove the fair market value of its own property.” Id. The defendant 

essentially urges us to distinguish between “to prove” and “to present evidence of” and asserts 

that, when the trial justice rejected plaintiffs’ expert’s valuation, she effectively found that 

plaintiffs failed to meet their burden of proof.11 

In Ferland Corp., 626 A.2d at 218, this Court held that the trial justice committed error 

when he accepted one expert’s valuation but subsequently factored depreciation into that

valuation after the expert expressly admonished the court against such a methodology. This 

Court rejected the trial justice’s conclusion because it “fail[ed] to understand how the trial justice 

could have accepted [an expert]’s valuations and then disregarded his admonition regarding the 

addition of depreciation. The record is devoid of any evidence justifying this action.” Id. 

Rather than declare that the plaintiff in Ferland Corp. had failed to meet his burden of proof, this 

Court’s analysis focused on whether the specific facts and expert testimony supported the trial 

justice’s ultimate valuation, not whether one expert’s valuation was wholly accepted or rejected. 

 11 We observe that the dispute in Harvard Pilgrim Health Care of New England, Inc. v. Gelati, 

865 A.2d 1028, 1030 (R.I. 2004) concerned tangible property; however, the same statutory 

provisions govern the taxation of tangible and real property.
- 18 -

We decline to read the plaintiffs’ burden quite as rigidly as defendant suggests. Black’s 

Law Dictionary defines the word “prove” as “[t]o establish or make certain; to establish the truth 

of (a fact or hypothesis) by satisfactory evidence.” Black’s Law Dictionary 1420 (10th ed. 

2014). It also explains that “[t]he burden of proof includes both the burden of persuasion and the

burden of production.” Id. at 236. It is well settled that “‘a trier of fact can accept the property 

valuation of one set of experts and reject that of another set of experts.’ * * * Just as a trial 

justice may pick and choose among evidence presented by laypersons, he or she may do the 

same when dealing with evidence of experts.” Ferland Corp., 626 A.2d at 215-16 (quoting 

Kargman v. Jacobs, 122 R.I. 720, 735, 411 A.2d 1326, 1334 (1980) and Socony-Vacuum Oil Co. 

v. French, 88 R.I. 6, 11-12, 143 A.2d 318, 321 (1958)). Therefore, it is our opinion that the 

burden of proof on a plaintiff contesting a tax assessment requires that the plaintiff must produce 

evidence from which the trier of fact can sufficiently discern the fair market value. This

evidence might include the testimony of the plaintiffs’ own experts, testimony of the tax 

assessor, cross-examination of the town’s experts, any other competent evidence entered into the 

record that assists the trier of fact, as well as the arguments made by counsel.

Thus, our task in this case is to: (1) review the trial justice’s determination that plaintiffs 

met their burden of proving that the tax assessor’s valuation was above the fair market value and 

(2) decide whether there was sufficient evidence to support the trial justice’s valuation.

Overcoming the Presumption of Correctness

The defendant urges that the trial justice misconceived material evidence at several stages 

in her analysis. First, he claims that she misconceived the evidence when she found that Vacca

and Ferreira testified that the subject property and its neighbor, 7 Manatuck Avenue, were 

“outliers” and should not have been considered in the assessment. Second, defendant argues that 
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the trial justice was clearly wrong when she declined to consider the two 2008 appraisals 

commissioned by Washington Trust Company, because those appraisals fully supported the 

town’s assessment. Third, defendant argues that the trial justice misconceived the evidence 

when she found that the experts testified that “the real estate market sustained a general, annual 

decline of 6%.”

In our view, defendant seeks to recharacterize much of Vacca’s testimony, arguing that 

“both Ferreira and Vacca stated that they knew that [5 Manatuck] had been somewhat overpriced 

* * * and, consequently, they had adjusted its value downwardly.” However, the record reveals 

that Vacca repeatedly confirmed that he believed the subject property’s sale price was an 

“outlier,” most notably in response to a direct question by the defense’s counsel. Vacca was 

asked, “So [plaintiffs’ counsel] talked to you a little about outliers and such, and you recognized, 

I think, as we stated prior, that 5 Manatuck Avenue, the purchase of that property was an 

outlier?” To which, he responded, “Yeah.” He similarly acknowledged that the 7 Manatuck 

Avenue sale was an outlier because the purchasers paid 22 percent over the previously assessed 

value when they acquired the property before expending over $1.4 million to rebuild the existing 

house after the sale.

Most importantly, Vacca testified that he would not consider a sale price that he believed

to be an outlier when assessing a neighboring property, but did not agree that it would be 

inappropriate to use that same outlier sale price when he assessed the property that had been sold 

at an excessive price. Thus, Vacca’s testimony may fairly be characterized as somewhat 

contradictory on this issue. Vacca attempted to explain his approach to sales in the high-end 

market in this way:

“Certainly in high-end real estate there’s an awful lot of emotion, I 

have learned that over the years. * * * If somebody goes down to 
- 20 -

an end of a road and buys one house for $1.8 million when I don’t 

have an assessment on that street for 550, and this is a real story, 

there’s no reason for me to look at that one sale and include that as 

a determining factor to say * * * that I should now raise 

everybody’s assessment unless I know what happened in that sale. 

* * * [Y]ou’re basically doing an injustice to everybody else on the 

street. So you have to look at a sale, you have to get a feel for 

where value is, and you have to approach it that way.”

Despite that explication, however, Vacca did use the outlier sales values for 5 Manatuck Avenue 

and 7 Manatuck Avenue to justify raising the assessments on each of those properties. But he

said that he did not have any comparative sales that would justify the prior assessments at 8 

Manatuck Avenue, 15 Ocean View Highway, or 17 Ocean View Highway. He also insisted that 

location was the most important factor, and that 7 Manatuck Avenue and 5 Manatuck Avenue 

were adjacent to each of those three properties.

We conclude that the trial justice was well within her discretion when she found that the 

sales of 7 Manatuck Avenue and 5 Manatuck Avenue were outliers and in concluding that Vacca 

acted arbitrarily in assessing the Whittemores’ property at $5.9 million. It is clear to us that

Vacca considered both outlier sale prices when he arrived at the challenged assessment, even 

though he acknowledged that he did not use those sale prices to assess neighboring properties. 

Such a procedure was plainly arbitrary, particularly in the context of the mass appraisal 

revaluation that Ferreira testified was designed as a “standardized method to try to establish 

equity across the tax base.” The natural consequence of that arbitrary methodology was to skew 

the assessment upwards. We hold that the trial justice was not clearly wrong when she 

determined that the resulting assessment was above the fair market value of the subject property.

Next, defendant assigns error to what he believes was the trial justice’s finding that “all 

appraisals made on all properties prior to 2009 were unworthy of belief.” The defendant gleans 

this blanket characterization from the trial justice’s decision, wherein she wrote,
- 21 -

“The [c]ourt infers from this testimony that prior to the Great 

Recession, appraisers lacked objectivity in completing an appraisal 

for a financial institution because they were provided the ‘target 

number,’ i.e., the sale price. For these reasons, this [c]ourt entirely 

disregards the usefulness of either of the October 2008 appraisals 

requested by Washington Trust, as Vacca should have done as 

well.”

The plaintiffs argue that defendant’s objection relates to the weight of the evidence relied upon 

by the trial justice and not to any misconceived or erroneous reliance on evidence in the record. 

We agree. It is clear to us that defendant overlooks the trial justice’s other findings on the 

Washington Trust appraisals. The trial justice made the following findings:

“The [Washington Trust] appraisals * * * relied on 7 Manatuck, as 

well as two other Watch Hill properties that sold * * * well before 

the market collapse in the fall of 2008. * * * One of the appraisals 

also relied upon a pending sale that ultimately sold for a drastically 

reduced sum than what was reported in the appraisal. * * * Vacca 

acknowledged the inaccuracy of these appraisals, noting that to the 

extent he relied on these appraisals, ‘they were skewed upwards.’”

Based on our review of the record, we conclude that, even disregarding the trial justice’s 

conclusion on the objectivity of appraisals commissioned by banking institutions, there was more 

than sufficient evidence to support the trial justice’s rejection of the utility of those two 

appraisals in assessing the subject property’s value. During an extensive cross-examination, 

defense counsel walked Vacca through the comparable sales, asking Vacca whether the 

appraisers hired by the bank made important adjustments for factors such as superior views or 

the timing of those sales. Vacca admitted that those adjustments were not made. After he 

testified to each of the comparables used, when Vacca was asked directly what he believed to be 

the best comparable sales for 5 Manatuck Avenue, the only property he could identify was the 

sale of the neighboring property at 7 Manatuck Avenue. Vacca’s own rejection of the 
- 22 -

comparable sales used in the two Washington Trust appraisals is persuasive evidence that those 

appraisals were unreliable.

Finally, we disagree with defendant’s claim that the trial justice misconceived the 

evidence when she found that “the real estate market sustained a general, annual decline of 6%.”

McAndrew and Ferreira testified that there had been a general decline in real estate values by 

approximately 6 percent; and, contrary to defendant’s assertion, both specifically testified that 

they believed the Watch Hill neighborhood experienced that same decline. Indeed, McAndrew 

testified that the decline in real estate values affected the high-end market the hardest, and that 

that market was the slowest to stabilize. Even if that evidence had been contradicted by other 

testimony, there can be no serious dispute that the trial justice is entitled to pick and choose 

between the testimonies of experts. Thus, she acted well within her discretion when she credited

the testimony of Ferreira and McAndrew about the effect that the Great Recession had on market 

values in the Watch Hill neighborhood.

Indeed, that evidence was not contradicted. Importantly, the following exchange 

occurred between plaintiffs’ counsel and Vacca:

“Q: Now, when we’re talking about the assessments for 

15 Ocean View and 17 Ocean View, which also dropped in their 

assessment during that period of time, correct me if I’m wrong, but 

I may be getting this wrong, there was at least a paucity of sales to 

justify carrying over the ’06 assessments over to ’09, is that a fair 

statement?

“A: When dealing with individual properties, unless we 

had something to really substantiate where value was, then we 

reduced the assessment, yes.

“Q: And you reduced the assessment based upon the 

general decline in the market, is that correct?

“A: We viewed it as a general decline, or what we 

interpret to be a general decline.
- 23 -

“Q: Around 6 or 7 percent?

“A: Yes, made it about 6 percent.”

Thus, Vacca confirmed his belief not only that there had been a general decline in market values, 

but that the Watch Hill neighborhood in particular had been affected by a decline of 6 percent. 

Therefore, we conclude that the trial justice did not misconceive the evidence presented 

at trial and that she acted well within her discretion to conclude that plaintiffs met their burden of 

proving that the tax assessor assessed the property at a value above the fair market value, 

overcoming the presumption that the tax assessor performed his duty properly. 

The Trial Justice’s Methodology

The final issue on fair market value, therefore, is whether the evidence supported the trial 

justice’s determination of value. The defendant argues that the trial justice erred as a matter of 

law because she fashioned her own methodology—what defendant dubs “the general market 

trend approach”—that he claims was neither supported by the testimony of the town’s experts

nor has ever been approved by this Court. Effectively, defendant argues that the only method the 

experts testified about during this trial was the comparable sales method; therefore, the trial 

justice was obligated to apply it. The plaintiffs argue that, once the trial justice determines that 

the tax assessor erred in his assessment, she was free to independently determine the value of the 

subject property, using any methodology that was supported by sufficient evidence on the record. 

“This court has held on numerous occasions that comparable sales should be used in the 

valuation of real estate in the event that such comparable sales are available.” Ajootian v. 

Hazard, 488 A.2d 413, 416 (R.I. 1985) (citing J.W.A. Realty, Inc. v. City of Cranston, 121 R.I. 

374, 399 A.2d 479 (1979); Golden Gate Corp. v. Providence Redevelopment Agency, 106 R.I. 

371, 260 A.2d 152 (1969); Manning v. Redevelopment Agency of Newport, 103 R.I. 371, 238 
- 24 -

A.2d 378 (1968)). “Evidence of comparable sales is preferred because such figures provide the 

best evidence of fair market value.” Sweet v. Town of West Warwick, 844 A.2d 94, 98 (R.I. 

2004) (citing Corrado v. Providence Redevelopment Agency, 117 R.I. 647, 653, 370 A.2d 226, 

229 (1977)). “‘When evidence of comparable sales is not available or is inappropriate,’

however, other methods of valuation may be employed.” Id. (quoting Warwick Musical Theatre, 

525 A.2d at 910). “‘Significant factors that affect comparability include location and character 

of the property, proximity in time of the comparable sale, and the use to which the property is 

put.’” Id. (quoting Serzen v. Director of the Department of Environmental Management, 692 

A.2d 671, 674 (R.I. 1997)). Indeed, in the context of eminent domain valuation, we have said 

that, “out of an overriding concern for awarding just compensation, the finder of fact may 

deviate from the comparable sales method of valuation when the evidence of comparable sales is 

‘no longer probative.’” Id. (quoting Corrado, 117 R.I. at 657, 370 A.2d at 231).

Each of the experts in this case testified about the paucity of useful comparable sales 

during the relevant time period. Further, McAndrew, Ferreira, and Vacca each testified to the 

unique challenges of trying to use comparative sales in the high-end estate-style housing market 

during an economic downturn, because those owners tended to have the financial means to hold 

on to property until the market improved. Furthermore, McAndrew and Vacca testified that,

even when sales data was available, those sales in the high-end market tended to be less reliable 

in calculating fair market value because the purchasers could be driven by emotion, the prices 

could be the product of paying higher than market value for the perfect house, or even investing 

substantial money to build an entirely new house after the sale. Finally, McAndrew testified that 

the dramatic collapse of the housing market between 2008 and 2012 made the timing of a sale 

substantially more relevant to the usefulness of comparable sales.
- 25 -

Relying on the evidence before her, the trial justice rejected the comparable sales data 

considered by each of the experts and concluded that it was an error for Vacca to use the 

comparable sales approach in assessing plaintiffs’ property. Vacca’s own testimony indicates 

that he did not believe there were any reliable comparable sales for supporting the assessments at 

8 Manatuck Avenue, 15 Ocean View Highway, and 17 Ocean View Highway, and that the only 

sale he considered comparable for the subject property was that of 7 Manatuck Avenue. 

Therefore, as this Court previously concluded in a similar case, “[w]e are of the opinion that the 

trial justice properly deviated from the comparable sales approach because the evidence before 

the court, as presented by both parties, was found to be unreliable and was, therefore, ‘no longer 

probative.’” Sweet, 844 A.2d at 99 (quoting Corrado, 117 R.I. at 657, 370 A.2d at 231).

Here, unlike in Ferland Corp., 626 A.2d at 218, the trial justice benefitted from ample

evidence that justified her decision to apply a 6 percent reduction to the 2008 assessment value. 

Each of the experts testified that a 6 percent general downturn in the market began in late 2008, 

and that evidence was believed to be specifically applicable to the Watch Hill neighborhood.

The trial justice’s decision, then, to conclude that the property should have been assessed at 

$4,945,246 on December 31, 2009, was an appropriate application of reducing the 2008 

assessment of $5,260,900 by 6 percent.

Finally, we do not agree that the trial justice simply applied an across-the-board reduction 

method. Rather, the trial justice concluded that “Vacca’s justification in assessing nearby 

properties at lower amounts based on the paucity of sales should have been applied to 5 

Manatuck.” When she decided that the appropriate measure of damages was to apply a 6 percent 

reduction to the 2006 assessment value, the trial justice was effectively applying the very method 

that Vacca had used himself to assess the neighboring Watch Hill properties—that the 
- 26 -

comparable sales were unreliable and, therefore, “no longer probative,” Sweet, 844 A.2d at 99 

(quoting Corrado, 117 R.I. at 657, 370 A.2d at 231). Thus, it was appropriate to reduce the 

property’s previous assessment in accordance with a market trend specific to that neighborhood. 

We conclude that the trial justice’s methodology was, therefore, sufficiently supported by the 

record, and we shall not disturb it.

B

Statutory Appeals Forms

Next, defendant challenges the trial justice’s refusal to dismiss plaintiffs’ petition 

challenging their 2011 assessment, based on plaintiffs’ failure to timely file an account, because 

she found that the forms provided by the town to taxpayers did not conform to statutory 

requirements set forth in § 44-5-26(b).12 The defendant argues that the trial justice based her 

decision on one set of forms, but that she overlooked other forms, which did contain the required 

statutory language and, therefore, plaintiffs were cloaked with actual knowledge of the statutory 

requirements. The plaintiffs counter that the Legislature has mandated that all of the language in 

question be included on one appeal form, rather than spread throughout different forms, so 

taxpayers will not be surprised to discover that they have no right of access to the courts. 

Section 44-5-26 provides that “[a]ny person aggrieved on any ground whatsoever by any 

assessment of taxes * * * may * * * file an appeal in the local office of tax assessment,” the local 

tax board of review, and ultimately, the Superior Court. The right to appeal to the Superior 

Court is limited, however, by §§ 44-5-15 and 44-5-16. Section 44-5-15 requires that the tax 

assessor must publish notices informing the public that every person liable to taxation is required

 12 The defendant agrees that the petitions challenging the 2009 and 2010 assessments should not 

have been dismissed, and so only challenges the trial justice’s decision not to dismiss the petition 

concerning the 2011 assessment.
- 27 -

to file with the assessors “a true and exact account of all the ratable estate owned or possessed by 

that person or body * * *.” The provision further prescribes the following:

“If any person * * * liable to taxation files with the assessors, on or 

before January 31 next following the date of assessment, a written 

notice of that person’s * * * intention to bring in an account, the 

person * * * may bring in to the assessors the account at any time 

between March 1 and March 15 next following the date of 

assessment. * * * In case any person * * * fails to file any 

intention, that person * * * is deemed to have waived that person’s 

or that body’s right to file the account.” Id. (emphases added).

Section 44-5-16(a) provides that the person providing the account must swear under oath that it 

is accurate and that any person who fails to bring in the account “shall have no remedy therefor, 

except as provided in §§ 44-4-14, 44-4-15, 44-5-26--44-5-31, and 44-9-19--44-9-24.” Section 

44-5-26(b) directs that appeals be on an application that “shall be in” a particular form, set forth

in that provision, which contains explicit language of the limitations contained in §§ 44-5-15 and 

44-5-16.13 We repeatedly have explained that failure to file a sworn account by the statutorily 

 13 The specific form required by § 44-5-26(b) includes in pertinent part the following provisions:

“TAXPAYER INFORMATION ABOUT APPEAL PROCEDURE

“REASONS FOR AN APPEAL. It is the intent of the 

general assembly to ensure that all taxpayers in Rhode Island are 

treated equitably. Ensuring that taxpayers are treated fairly begins 

where cities and towns meet defined standards related to 

performing property values. All properties should be assessed in a 

uniform manner, and properties of equal value should be assessed 

the same.

“TO DISPUTE YOUR VALUATION OR ASSESSMENT 

OR CORRECT ANY OTHER BILLING PROBLEM OR ERROR 

THAT CAUSED YOUR TAX BILL TO BE HIGHER THAN IT 

SHOULD BE, YOU MUST APPEAL WITHIN NINETY (90) 

DAYS FROM THE DATE THE FIRST TAX PAYMENT IS 

DUE.

“* * *

“FILING AN ACCOUNT. Rhode Island General Laws 

[§] 44-5-15 requires the annual filing of a true and exact account of 

all ratable estate owned or possessed by every person and 
- 28 -

prescribed deadline constitutes a failure to satisfy a condition precedent that allows the Superior 

Court to hear the merits of a tax appeal; however, failure to raise the unsatisfied condition 

precedent as an affirmative defense can result in waiver of that defense on appeal. See

Narragansett Electric Co. v. Saccoccio, 43 A.3d 40, 44-45 (R.I. 2012); Granoff Realty II Limited

Partnership v. Rossi, 833 A.2d 354, 358, 359 (R.I. 2003); Wickes Asset Management, 679 A.2d 

at 318; Rock Ridge Ltd. v. Assessor of Taxes, 667 A.2d 778, 780 (R.I. 1995).

In Rock Ridge Ltd., 667 A.2d at 780, we dismissed a taxpayer’s argument that the tax 

assessor’s published notice, pursuant to § 44-5-15, was deficient in not adequately apprising 

taxpayers of the consequences of their failure to file a sworn and timely account. We held that,

“[t]here is no statutory requirement that the notice reveal the 

consequences of the failure to file an account. The respondent 

complied with the statute in issuing a notice that those liable for 

taxation are ‘required to bring to the City Assessor a true and exact

account of all ratable estate owned by him, or it * * *.’ (Emphasis 

added.) The petitioner was on notice that the filing of an account 

was required. The ramifications of the failure to file an account 

are set forth in the taxing statutes and are not required to be set out 

in the notice. Section 44–5–16(a) provides that ‘whoever neglects 

or refuses to bring in the account, if overtaxed, shall have no 

remedy therefore [save that afforded by § 44–5–26].’ Given the 

case law and the provisions of the statute, it is our opinion that the 

trial justice properly granted respondent’s motion for summary 

judgment.” Rock Ridge Ltd., 667 A.2d at 780.

 

corporate body. The time to file is between December 31, and 

January 31, of intention to submit declaration by March 15. 

Failure to file a true and full account, within the prescribed time, 

eliminates the right to appeal to the [S]uperior [C]ourt, subject to 

the exceptions provided in Rhode Island General Laws 

[§] 44-5-26(b). No amended returns will be accepted after March 

15th. Such notice of your intention must be sent by certified mail, 

postage prepaid, postmark no later than 12 o’clock midnight of the 

last day, January 31. No extensions beyond March 15th can be 

granted. The form for filing such account may be obtained from 

the city or town assessor.”
- 29 -

However, it does not appear that we have addressed the particular issue of the tax assessor’s duty 

to provide notice to taxpayers using the particular language of the taxpayers’ obligation to file a 

sworn account under § 44-5-26. Since Rock Ridge Ltd. was decided, the General Assembly

twice has amended § 44-5-26(b) in ways pertinent to this appeal: first, to include a specific form 

for the application to the tax assessor, specifying that the application be “substantially in the 

following form,” see P.L. 1999, ch. 485, § 1; and second, to modify that same language that 

applications for appeals to the tax assessor “shall be in the following form,” see P.L. 2001, 

ch. 365, § 1 (emphasis added). The required language includes a section specifically designed to 

apprise taxpayers of their rights and obligations in appealing a tax assessment and the 

consequences of not meeting those obligations.

The trial justice determined that those amendments created a mandatory obligation on the 

part of the tax assessor to provide the statutorily required language on all appeal forms, and that 

the failure to do so estopped the town from raising the affirmative defense that plaintiffs failed to 

file timely accountings. We are unconvinced by defendant’s argument that the trial justice 

overlooked that he met his statutory obligations by providing the required language in different 

forms than the application for appeals. Plainly, that is not what the General Assembly 

contemplated in requiring that the application for appeals be included in a specified form. 

Nevertheless, we are of the opinion that the tax assessor’s obligation is directory, rather 

than mandatory. Although most prior cases addressing mandatory versus directory statutory 

language interpret time limitations, rather than content of notices, we have held on multiple 

occasions that apparently mandatory language is not necessarily mandatory where the language 

is directed at public officers or where the legislature does not provide a sanction for the failure to 

meet that requirement, so long as substantial rights of the parties are not prejudiced. See
- 30 -

Washington Highway Development, Inc. v. Bendick, 576 A.2d 115, 117 (R.I. 1990); GSM 

Industrial, Inc., 47 A.3d at 270; Town of Tiverton v. Fraternal Order of Police, Lodge # 23, 118 

R.I. 160, 164-65, 372 A.2d 1273, 1275-76 (1977); Beauchesne v. David London & Co., 118 R.I. 

651, 660, 375 A.2d 920, 924-25 (1977).

In New England Development, LLC v. Berg, 913 A.2d 363 (R.I. 2007), we reviewed our 

decisions in similar cases, noting that,

“because the statute did not say that the failure to comply with the 

time constraints removed the director’s jurisdiction to decide the 

matter, and because the statute contained no negative language in 

the event the director failed to act within the statutorily described 

period, we were constrained to find the statute directory as 

opposed to mandatory.” Id. at 372 (quoting Bendick, 576 A.2d at 

117). 

In GSM Industrial, Inc., we held that language requiring that a notice of intention to enforce a 

mechanic’s lien be executed under oath was mandatory and not directory because it was 

“expressed in clear, unequivocal, and mandatory language” and because the statute provided an 

explicit remedy that “unless all of its requirements are met, the lien ‘shall be void and wholly 

lost.’” GSM Industrial, Inc., 47 A.3d at 270 (quoting Pezzuco Construction, Inc. v. Melrose 

Associates, L.P., 764 A.2d 174, 177 (R.I. 2001) and G.L. 1956 § 34-28-4(a)).

Here, the General Assembly did not provide any specific remedy for the town’s failure to 

provide the specific language on application forms. The only explicit consequences provided in 

the statute—that “whoever neglects or refuses to bring in the account, if overtaxed, shall have no 

remedy therefor,” § 44-5-16—are directed at taxpayers rather than assessors. We do not disagree 

with the trial justice’s rationale that “the prerequisites to appeal a tax assessment reveal[] a 

complicated, cumbersome procedure with many pitfalls for unwary taxpayers.” However, absent 

the provision of an explicit remedy accompanying the statutory directives, we cannot conclude 
- 31 -

that the General Assembly intended for the town to be estopped from raising the affirmative 

defense. 

Therefore, it is our opinion that the trial justice should have dismissed the plaintiffs’ third 

petition challenging the 2011 tax assessment for failure to file a timely accounting with the tax 

assessor.

Conclusion

For the reasons set forth in this opinion, we affirm in part and vacate in part the judgment 

of the Superior Court. We affirm the trial justice’s determination that the assessments of the 

plaintiffs’ home were excessive and incorrect with respect to the years 2009 and 2010, but we 

reverse the trial justice’s decision as it pertains to the tax assessment for 2011. The record is 

remanded to the Superior Court for further proceedings consistent with this opinion.

Justice Robinson, concurring. I concur in the entirety of the Court’s opinion in this 

case. However, I am troubled by the result reached with respect to the taxpayers’ challenge to 

the 2011 assessment. I concede that existing Rhode Island precedent supports the Court’s 

conclusion that the statutory requirement that particular language be included in the application 

form is directory rather than mandatory. While I consider it to be an exceedingly close question, 

I am persuaded that the fact that the General Assembly did not provide for any specific remedy 

for a municipality’s failure to abide by the statutory requirement renders that requirement 

directory. However, I would hasten to add that the General Assembly’s inclusion of a specific 

remedy would unquestionably lead me to conclude that we were confronted with a mandatory 

statutory provision; if such a situation were present in the instant case, I would have been of a 

different view concerning the 2011 assessment. See, e.g., GSM Industrial, Inc. v. Grinnell Fire 
- 32 -

Protection Systems Co., 47 A.3d 264, 270 (R.I. 2012) (noting that the statutory requirement at 

issue provided that the penalty for noncompliance was that the lien in question would be “void 

and wholly lost”) (quoting G.L. 1956 § 34-28-4(a)).
RHODE ISLAND SUPREME COURT CLERK’S 

OFFICE

Clerk’s Office Order/Opinion Cover Sheet

TITLE OF CASE: Laurence F. Whittemore, III et al. v. David B. Thompson, in his 

capacity as Tax Assessor for the Town of Westerly.

 

CASE NO: No. 2014-157-Appeal.

(WC 11-252)

No. 2014-158-Appeal.

(WC 12-105)

No. 2014-160-Appeal.

(WC 13-152)

COURT: Supreme Court

DATE OPINION FILED: June 24, 2016 

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

WRITTEN BY: Chief Justice Paul A. Suttell

SOURCE OF APPEAL: Washington County Superior Court

JUDGE FROM LOWER COURT:

 Associate Justice Kristin E. Rodgers

ATTORNEYS ON APPEAL:

 For Plaintiffs: Kelly M. Fracassa, Esq.

 

For Defendant: Lauren E. Jones, Esq.

 Robert S. Thurston, Esq.

 Matthew T. Oliverio, Esq.