Gray-Quintin v. Town of Williamstown, No. 232-10-10 Oecv (Eaton, J., Apr. 17, 2012)

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
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                                                       STATE OF VERMONT

SUPERIOR COURT                                                                                         CIVIL DIVISION
Orange Unit                                                                                            Docket No. 232-10-10 Oecv

Shanna Gray-Quintin
      Plaintiff

v.

Town of Williamstown
      Defendant

                                 Decision on Defendant’s Motion for Reconsideration

         At issue is what a town must do when it learns, one day before a tax sale, that its
registered notice to the taxpayer has been returned as unclaimed. Defendant Town of
Williamstown argues that it may proceed with the tax sale if it sends a first-class letter to the
taxpayer, even though there is no chance that the mail will be delivered before the sale. Plaintiff
Shanna Gray-Quintin argues that such a procedure does not comport with either the applicable
state statutes or the federal constitutional standard established by Jones v. Flowers, 547 U.S. 220,
225 (2006).

         The tax sale here occurred on the facts noted above. After the sale, Ms. Gray-Quintin
sought a declaration voiding the tax sale for insufficient notice, largely for reasons related to her
co-ownership of the property with her estranged father. Defendant filed for summary judgment
on the ground that its chosen method of notice was adequate at least as to the co-ownership
issues. In a written ruling, this court attempted to refocus the case on what it perceived as the
more fundamental concern: that once the town learned that its attempts at notice by mail had
failed, the town was not permitted to proceed with the sale until it made additional reasonable
attempts “to provide notice to the property owner before selling [her] property.” Jones v.
Flowers, 547 U.S. 220, 225 (2006) (emphasis added). Defendant now seeks reconsideration of
this ruling on several grounds.

         Defendant argues first that Jones does not control this case because the town here learned
only one day before the scheduled sale that its attempts at registered service had failed, at which
point, the town argues, “nothing much more could be done about it, at least by mail.” It is
precisely this shrug of the shoulders that the court is focusing on. If there is any take-home
message from Jones for Vermonters, it is that the requirement of a return receipt in 32 V.S.A.
§ 5252(3) is meaningful. If the receipt is returned with a signature, then the town may proceed
with confidence that it has provided actual notice to the taxpayer before the scheduled sale. But
if the receipt is returned as unclaimed, then the town “cannot simply ignore” that fact and sell the
property without notice, as the town did here. Jones, 547 U.S. at 237. Instead, the town must
conclude that it has failed to provide registered notice as required by § 5252(3), and make some
additional attempt to provide notice that is “reasonably calculated, under all the circumstances,”
to reach the taxpayer before the sale is held. Mullane v. Central Hanover Bank & Trust Co., 339
U.S. 306, 314 (1950). If the town has not left itself enough time to do this, the answer is not for
the town to tell the tax collector to “sell now and deal with notice later,” but rather to postpone
the sale until the town has satisfied its statutory and constitutional notice obligations.

        Defendant argues second that Jones does not control in states where there is a redemption
period following the sale. Defendant appears to have misunderstood the circumstances of Jones
because the opinion there references a post-sale redemption period with a supporting citation to
the applicable state statute. See 547 U.S. at 224 (citing Ark. Code Ann. § 26-37-202(e)(1)).
More importantly, defendant has not cited any legal support for the proposition that a post-sale
redemption period excuses the government’s obligation to provide notice to a taxpayer before
selling her property.

        Defendant argues third that the reach of Jones was limited in Pagonis v. United States,
575 F.3d 809 (8th Cir. 2009). Pagonis was a case in which the Internal Revenue Service audited
a taxpayer and issued a notice of deficiency by certified mail, which was returned as unclaimed.
The issue was whether the IRS needed to make further attempts to notify the taxpayer of the
deficiency before assessing the taxes; the answer was no, but the Eighth Circuit went out of its
way to clarify that additional notice would be required if the IRS was attempting to sell the
taxpayer’s property as part of an effort to collect taxes. 575 F.3d at 814–15. Hence, the holding
in Pagonis has no bearing on the present case, and its dicta directly supports the court’s
conclusions.

        Defendant finally argues that the court impermissibly credited plaintiff’s unsworn
statements that she gave a different address to the town clerk. Although that fact was recited in
that opinion, it was not material to the outcome and is thus no basis for reconsideration. The
court’s fundamental concern here is not with the taxpayer’s discussions of her situation with the
town clerk, or even with this particular taxpayer’s arrangements between herself and the co-
owner of the property, but rather with the town’s act of selling a taxpayer’s property without
providing the notice that is required by 32 V.S.A. § 5252(3). See Jones, 547 U.S. at 237
(emphasizing that a notice that is returned unclaimed is the same as no notice at all). For this
same reason, the court does not expect the testimony referenced in defendant’s motion in limine
to be central to the outcome at trial.


                                             ORDER

       Defendant’s Motion to Alter or Amend Judgment (MPR #5), filed Feb. 22, 2012, is
denied. Defendant’s Motion in Limine (MPR #6), filed Feb. 22, 2012, is reserved until trial.

       Dated at Chelsea, Vermont this ____ day of April, 2012.


                                                      __________________________________
                                                      Harold E. Eaton, Jr.
                                                      Superior Court Judge



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