Patrick Conley, Esquire v. Crown Realty, LLC, Brenco Realty, LLC, Town of North Providence
No. 2019-66-Appeal. (PM 18-3987)
Supreme Court of Rhode Island
January 17, 2020
Associate Justice Francis X. Flaherty
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
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.
O P I N I O N
I
Facts and Travel
The facts in this case leave little room for dispute. Crown Realty was the owner of real property located at 2 Tag Drive in North Providence (the property). The property was used as a garage at which Crown Realty stored automobiles in connection with its towing business. On May 18, 2017, the property was sold to the plaintiff, Patrick Conley, at a tax sale that was conducted by the Town of North Providence. On June 6, 2018, Mr. Conley, citing a failure of any interested party to redeem the property, filed a petition to foreclose
On August 3, 2018, Mr. Conley filed a motion seeking a decree pro confesso.2 Then, on August 9, Mr. Souza called Mr. Conley‘s office to inquire into the cost of redeeming the property. In response, a paralegal at Mr. Conley‘s office sent an e-mail to Mr. Souza with a redemption statement indicating that $11,676.72 would be required to redeem the property, and noting: ”INTEREST GOOD UNTIL August 18, 2018.” The statement also warned that ”Suit Will Continue, and Judgment May Enter Against You, Unless Full Payment is Received[.]” Interestingly, Mr. Souza paid $7,995 to the Town of North Providence on August 10, 2018, which had the effect of paying the unpaid taxes on the property from the year 2017, to which Mr. Conley‘s petition to foreclose did not relate.
Then, on August 16, perhaps realizing his predicament, Mr. Souza obtained a cashier‘s check for $11,676.72, the amount indicated in the redemption statement form that he had received via e-mail from Mr. Conley‘s office. However, Mr. Souza did not deliver the check to Mr. Conley‘s office until August 20, he asserts, due to a death in the family. The check, however, was not accepted when it was proffered on August 20. Thereafter, on August 28, Crown Realty filed a response to Mr. Conley‘s petition to foreclose, along with a memorandum objecting to Mr. Conley‘s motion for a decree pro confesso.
A justice of the Superior Court heard argument in September 2018 regarding Mr. Conley‘s motion and Crown Realty‘s objection. After allowing the parties to submit supplemental briefs, the justice issued a bench decision in November 2018, in which she determined that Crown Realty‘s right of redemption was barred. In that decision, she determined that this Court‘s decision in Conley v. Fontaine, 138 A.3d 756 (R.I. 2016), was largely controlling and did not favor Crown Realty‘s request to redeem after the twenty-day period had elapsed. She also determined that she was unable to rule on whether the e-mail containing the redemption statement sent by Mr. Conley‘s paralegal had created contractual rights between the parties, because the petition before her was filed pursuant to the tax-sale statute. One week later, a final decree was entered foreclosing the right of Crown Realty to redeem the property. Crown Realty timely appealed.
On appeal before this Court, Crown Realty makes two arguments.3 It argues that
representation as to when the property owner must redeem the tax title.” Crown Realty also argues that, even if Mr. Conley was entitled to a decree pro confesso, an implied contract existed obligating Mr. Conley to convey the property back to Crown Realty.
II
Discussion
At the core of this appeal is this Court‘s decision in Fontaine. In that case, we explained certain aspects of chapter 9 of title 44 of the general laws related to tax sales. Fontaine, 138 A.3d at 760. We said in that case that, under that chapter, after the appropriate amount of time has passed since a purchaser acquired property at a tax sale, the purchaser “may file a petition in Superior Court to foreclose upon any interested party‘s right of redemption.” Id. (quoting Izzo v. Victor Realty, 132 A.3d 680, 685 (R.I. 2016); citing
After spelling out the statutory framework in Fontaine, we evaluated whether it was proper for a justice of the Superior Court to grant a motion by a bank whose interest was being foreclosed to file an answer outside the twenty-day return period. Fontaine, 138 A.3d at 760. We assumed without deciding that the motion could be considered by the trial justice and concluded that, because the bank did not show good cause as to why it had failed to comply with the deadline, the justice of the Superior Court should not have granted the bank‘s motion. Id. at 760-61. Moreover, we considered whether the trial justice erred in ultimately allowing the bank to redeem the property and concluded that, because the bank failed to file a timely answer, and because its motion to file a late answer should not have been granted, the bank was in default pursuant to
In this case, despite the fact that Crown Realty does not contest that it did not respond within twenty days of receiving the notification that Mr. Conley sent, and further that Crown Realty acknowledged that there was no good reason for its failure to comply with that twenty-day deadline, Crown Realty nonetheless urges us not to apply what it terms “the draconian consequences of Conley v. Fontaine” to its case.
A
The Application of Fontaine
Crown Realty argues that Fontaine should not apply in this case because
Whether our precedent is applicable to the facts before us is a question of law and, as such, we review it de novo. Votolato v. Merandi, 747 A.2d 455, 460 (R.I. 2000).
First, we reiterate that it is undisputed that Crown Realty did not respond within the twenty-day period to the notice it received from Mr. Conley on July 6, 2018. Second, Crown Realty acknowledged that there was no good reason for its failure to respond within that time period. In fact, Crown Realty‘s attorney stated below: “There‘s no question that my client did not comply with that part of the law.” Rather, the “misleading representation” Crown Realty takes issue with was the redemption statement sent by a paralegal to Mr. Souza via e-mail on August 9, two weeks after the twenty-day period had expired. And third, Crown Realty‘s allusion to excusable neglect refers to its failure to respond to the redemption statement attached to the paralegal‘s e-mail by the August 18 date stated thereon, which has nothing to do with the original citation.
In light of these facts, we are satisfied that Crown Realty‘s request that an exception to Fontaine be applied in this case is misplaced. In Fontaine, we merely explained the relevant statutory framework and “interpret[ed] the statute literally and * * * g[a]ve the words of the statute their plain and ordinary meanings.” Fontaine, 138 A.3d at 760 (quoting Shine v. Moreau, 119 A.3d 1, 9 (R.I. 2015)). While the tax-sale statute itself may be draconian, this Court merely applies the law—it does not make it. And, moreover, the tax-sale statute is as clear today as it was when we decided Fontaine.4 Crown Realty had twenty days to respond to the citation it received from Mr. Conley on July 6, 2018. It failed to do so and provided no justification for this failure.5 As we
stated in Fontaine, when an entity fails to provide adequate justification for a failure to respond by the return date, that entity is “in default under
The Effect of the August 9 Redemption Statement
Crown Realty also argues that the e-mail it received from a paralegal in Mr. Conley‘s office on August 9, which contained a redemption statement stating ”INTEREST GOOD UNTIL August 18, 2018” and that ”Judgment May Enter Against You, Unless Full Payment is Received[,]” created an implied-in-fact contract between Crown Realty and Mr. Conley, obligating Mr. Conley to allow redemption of the property. Crown Realty asserts that, even though it did not tender the payment until August 20, this does not defeat its claim of an implied contract
because August 18 was a Saturday and Mr. Souza made the payment on the next business day. Crown Realty also argues that its failure to comply with the deadline should not defeat its claim because the redemption statement, in Crown Realty‘s words, “allowed Crown to make the payment until judgment was entered.” Moreover, Crown Realty argues that the delay should be forgiven because there was no indication that time was of the essence, and because performance within two days was reasonable. For his part, Mr. Conley argues that the Superior Court did not have jurisdiction to hear the contract claim and that, even if it did, the redemption statement did not create contractual rights.
Generally, when we pass on whether an implied contract existed between parties in a non-jury case, we evaluate whether “the trial justice misapplied the law, misconceived or overlooked material evidence or made factual findings that were clearly wrong.” Cote v. Aiello, 148 A.3d 537, 544 (R.I. 2016) (quoting Lamarque v. Centreville Savings Bank, 22 A.3d 1136, 1139-40 (R.I. 2011)). Nevertheless, in this case, the trial justice below did not make extensive findings of fact because she determined that she was without jurisdiction to rule on the question. The only finding she made related to the question was that “someone on [Mr. Conley‘s] behalf[] had extended an offer to representatives of Crown Realty” beyond the original twenty day deadline and that offer “indicated that they would be willing to accept payment of [the] redemption figure, and that representatives of Crown Realty replied [sic] upon that; that they went out and got the check[.]”
Despite the dearth of factual findings on the particular issue, we are of the opinion that we have all the information we need to pass on this issue. That is so because we decline Crown Realty‘s invitation to graft contract principles onto the strict and complex statutory framework governing tax sales and foreclosures, and we are not inclined to declare that the issuance of a redemption statement is an offer to allow a late redemption. Additionally, even if the redemption statement constituted an offer, there existed no indication of mutual agreement. See Cote, 148 A.3d at 545 (explaining that mutual agreement must be found in order for an implied-in-fact contract to exist). This is demonstrated not only by Crown Realty‘s payment to the
III
Conclusion
For the aforementioned reasons, the decree of the Superior Court foreclosing Crown Realty‘s right of redemption is affirmed. The papers in this case are remanded to the Superior Court.
Patrick Conley, Esquire v. Crown Realty, LLC, Brenco Realty, LLC, Town of North Providence
No. 2019-66-Appeal. (PM 2018-3987)
STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS SUPREME COURT - CLERK‘S OFFICE
January 17, 2020
OPINION COVER SHEET Justices: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ. Written By: Associate Justice Francis X. Flaherty Source of Appeal: Providence County Superior Court Judicial Officer From Lower Court: Associate Justice Maureen B. Keough Attorney(s) on Appeal: For Plaintiff: Patrick T. Conley, Esq. For Defendants: Andrew M. Cagen, Esq.
SU-CMS-02A (revised June 2016)
Notes
“Any person claiming an interest, on or before the return day or within that further time as may on motion be allowed by the court, providing the motion is made prior to the fixed return day, shall, if he or she desires 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.” (Emphasis added.)