May 1, 2019


                                                               Supreme Court

                                                               No. 2017-138-Appeal.
                                                               (PC 16-2572)


      Bluedog Capital Partners, LLC             :

                      v.                        :

  John A. Murphy, in his capacity as Tax        :
 Collector for the City of Providence, et al.




              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.
                                                                    Supreme Court

                                                                    No. 2017-138-Appeal.
                                                                    (PC 16-2572)


         Bluedog Capital Partners, LLC             :

                         v.                        :

     John A. Murphy, in his capacity as Tax        :
    Collector for the City of Providence, et al.


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

                                             OPINION

         Justice Indeglia, for the Court. In this action challenging the assessment of alleged

illegal taxes, the plaintiff, Bluedog Capital Partners, LLC (Bluedog), appeals from a judgment of

the Superior Court granting the motion to dismiss pursuant to Rule 12(b)(6) of the Superior Court

Rules of Civil Procedure filed by the defendants, John A. Murphy, in his capacity as tax collector

for the City of Providence (the city); David Quinn, in his capacity as tax assessor for the city; and

Michael Pearis, in his capacity as finance director for the city (collectively defendants).1 This

matter came before the Court on March 27, 2019, pursuant to an order directing the parties to

appear and show cause why the issues raised should not be summarily decided. After considering

the arguments set forth in the parties’ memoranda and at oral argument, we are convinced that

cause has not been shown. Thus, further argument or briefing is not required to decide this matter.

For the reasons outlined below, we affirm the judgment of the Superior Court.



1
  On appeal, Bluedog would have us adopt the words of former President Calvin Coolidge: “The
collection of any taxes which are not absolutely required * * * is only a species of legalized
larceny.” Silent Cal’s Almanack: The Homespun Wit and Wisdom of Vermont’s Calvin Coolidge
112 (David Pietrusza ed., 2008) (quoting Calvin Coolidge, 30th President of the United States,
Inaugural Address, March 4, 1925).
                                                   -1-
                                                 I

                                         Facts and Travel

       The following facts, sparse as they are, have been gleaned from Bluedog’s complaint. On

or about October 3, 2014, Bluedog, a private lender, loaned $35,000 to Fogliare Group, LLC

(Fogliare), in consideration of a first-priority mortgage on Fogliare’s real property, which has a

street address of 170 Bartlett Avenue, Providence, Rhode Island (the property). Bluedog recorded

the mortgage in the Providence land evidence records.2 The property encompasses two lots:

Assessor’s Plat 90, Lot 13, which is located within the city (the Providence parcel); and Assessor’s

Plat 2-5, Lot 1520, which is located within the City of Cranston (the Cranston parcel). The city

noticed a tax sale for the Providence parcel in tax year 2015; and, thereafter, on July 1, 2015, it

sold the Providence parcel at a tax sale, with a collector’s deed being recorded in the Providence

land evidence records on July 9, 2015. On June 2, 2016, Bluedog filed a two-count complaint,

seeking a declaration that defendants had illegally assessed the Providence parcel (Count I) and

seeking injunctive relief against the sale of the property (Count II). Bluedog alleged that its

mortgage was “subject to the tax sale[,]” and that, in tax year 2015, the total assessed value of the

Providence parcel was $102,200.3

       On June 24, 2016, defendants filed a motion to dismiss Bluedog’s complaint, pursuant to

Rule 12(b)(6). In their memorandum in support of the motion to dismiss, defendants argued that

G.L. 1956 § 44-5-26 provides the exclusive procedures for the tax-abatement relief that Bluedog




2
  The date that Bluedog recorded this mortgage appears neither in the complaint nor anywhere else
in the record before this Court.
3
  In its complaint, Bluedog averred that “[t]he Providence and Cranston Assessor’s Lots indicate
that most if not all of the house on the Property is located on the Cranston Parcel. Also,
approximately two-thirds (2/3) of the entire Property lot is located on the Cranston parcel.”


                                                -2-
sought and that Bluedog had not complied with those procedures.4 Moreover, defendants averred

that, even if Bluedog sought to bypass those procedures by invoking the Superior Court’s equity

jurisdiction under § 44-5-27, the three-month statute-of-limitations period for such actions had

expired; defendants alleged that Bluedog had filed its complaint “more than seven (7) months after

the limitations period expired for the most recent tax year at issue (2015) * * *.” (Emphasis in

original.) Finally, defendants contended that there was nothing for the Superior Court to enjoin

because the tax sale had already taken place.




4
    General Laws 1956 § 44-5-26(a) provides:

                “Any person aggrieved on any ground whatsoever by any
                assessment of taxes against him or her in any city or town, or any
                tenant or group of tenants, of real estate paying rent therefrom, and
                under obligation to pay more than one-half of the taxes thereon, may
                within ninety (90) days from the date the first tax payment is due,
                file an appeal in the local office of tax assessment; provided, if the
                person to whom a tax on real estate is assessed chooses to file an
                appeal, the appeal filed by a tenant or group of tenants will be void.
                For the purposes of this section, the tenant(s) has the burden of
                proving financial responsibility to pay more than one-half (½) of the
                taxes. The assessor has forty-five (45) days to review the appeal,
                render a decision and notify the taxpayer of the decision. The
                taxpayer, if still aggrieved, may appeal the decision of the tax
                assessor to the local tax board of review, or in the event that the
                assessor does not render a decision, the taxpayer may appeal to the
                local tax board of review at the expiration of the forty-five (45) day
                period. Appeals to the local tax board of review are to be filed not
                more than thirty (30) days after the assessor renders a decision and
                notifies the taxpayer, or if the assessor does not render a decision
                within forty-five (45) days of the filing of the appeal, not more than
                ninety (90) days after the expiration of the forty-five (45) day period.
                The local tax board of review shall, within ninety (90) days of the
                filing of the appeal, hear the appeal and render a decision within
                thirty (30) days of the date that the hearing was held. Provided, that
                a city or town may request and receive an extension from the
                director of the Rhode Island department of revenue.”


                                                  -3-
       In Bluedog’s memorandum in support of its opposition to defendants’ motion to dismiss,

Bluedog contended that “there are certain situations which have been recognized in Rhode Island

for bypassing the normal review procedures set forth in * * * §§ 44-5-26 and 44-5-27.” Bluedog

argued that one such case is where, as here, a tax is alleged to be illegal.5

       On November 17, 2016, a hearing on defendants’ motion to dismiss was held in Providence

County Superior Court. At that hearing, defendants began by arguing that the statute of limitations

for tax year 2015 had run on October 24, 2015, and that the complaint, which was filed in June

2016, was therefore untimely.        They also averred that the complaint merely alleged an

overassessment because the property was at least partially within the city’s jurisdiction, and that,

even if the taxes were alleged to be illegal, Bluedog was required to appeal the assessment to the

board of tax assessment review or else bring an action sounding in equity, pursuant to § 44-5-27,

in the Superior Court. The defendants cited the Superior Court decision underlying this Court’s

opinion in Narragansett Electric Company v. Minardi, 21 A.3d 274 (R.I. 2011), in which the

hearing justice found that the Uniform Declaratory Judgments Act could not be used to replace the

procedures set forth in §§ 44-5-26 and 44-5-27. See Minardi, 21 A.3d at 277.

       Moreover, defendants quoted this Court’s opinion in Pascale v. Capaldi, 95 R.I. 513, 188

A.2d 378 (1963), in which we stated: “In our opinion the legislature did not intend that a petition

under the uniform declaratory judgments act was to take the place of a taxpayer’s suit and,

therefore, the Superior Court had no jurisdiction under the act to grant the [taxpayer’s] prayers.”

Pascale, 95 R.I. at 514, 188 A.2d at 379. Finally, defendants argued, and the hearing justice




5
  See Narragansett Electric Company v. Minardi, 21 A.3d 274, 278 (R.I. 2011) (“Significantly,
§ 44-5-27 states that ‘the remedy provided in § 44-5-26 is exclusive;’ however, a taxpayer alleging
an illegal tax may proceed directly to the Superior Court.”) (brackets omitted) (quoting
§ 44-5-27).
                                                 -4-
seemed to agree, that, because the tax sale had already occurred, there was nothing for the Superior

Court to enjoin and, thus, there was no relief that could be granted under Count II of the complaint.

       Bluedog responded by outlining the deferential standard that courts give to plaintiffs on

motions to dismiss in general, and specifically in declaratory-judgment actions. Bluedog then

described the necessary elements to allege an illegal tax, which includes situations where the taxing

authority acted without jurisdiction or where the tax was so palpably exorbitant and excessive as

to amount to constructive fraud.6 Bluedog maintained that the tax in this case fit the latter criterion

because the building that the city had taxed was located “entirely outside of the City of

Providence.” The hearing justice then indicated that, even if she were willing to give Bluedog the

benefit of the doubt regarding whether the taxes were illegal, the three-month statute of limitations

under § 44-5-27 had clearly run by the time Bluedog filed its complaint. Bluedog responded that

the statute of limitations did not apply in this case because a “declaratory judgment action is outside

of what is contemplated in those statutes[,]” and the statute of limitations applied only to “an

ordinary request for equitable relief.”

       In her bench decision, the hearing justice determined that at the crux of this case is “whether

or not procedurally and legally * * * the [c]ourt had the authority to actually hear the instant

matter.” She then quoted the language of both § 44-5-26 and § 44-5-27, outlining the procedures

for challenging an assessment of taxes and the exceptions to those procedures. She then indicated

that, despite Bluedog’s contentions, this Court’s opinions in Minardi and CIC-Newport Associates

v. Stein, 121 R.I. 844, 403 A.2d 658 (1979), indicate that any suit challenging a purported illegal

assessment of taxes—such as the one at issue in this case—“would need to sound in equity and




6
  Bluedog contended in its complaint that in tax year 2016 the city reduced the assessed value of
the Providence parcel from $102,200 to $28,400.
                                                 -5-
they are therefore time-barred.” Accordingly, the hearing justice granted defendants’ motion to

dismiss Count I of Bluedog’s complaint. The hearing justice likewise granted defendants’ motion

to dismiss as to Count II, stating that “there is really nothing to enjoin here. There is no harm that

is presently threatened or imminent because * * * the property has already been sold.”7

       On December 9, 2016, an order entered dismissing Bluedog’s complaint, with prejudice.

On December 14, 2016, Bluedog filed a timely notice of appeal to this Court.

                                                  II

                                        Standard of Review

       “The sole function of a motion to dismiss is to test the sufficiency of the complaint.”

Gannon v. City of Pawtucket, 200 A.3d 1074, 1077 (R.I. 2019) (quoting Minardi, 21 A.3d at, 277).

“In passing on a Rule 12(b) dismissal, this Court applies the same standard as the trial justice.” Id.

(quoting Minardi, 21 A.3d at 278). “We thus are confined to the four corners of the complaint and

must assume all the allegations are true, resolving any doubts in the plaintiff’s favor.” Id. (brackets

omitted) (quoting Minardi, 21 A.3d at 278). “A motion to dismiss may be granted only if it appears

beyond a reasonable doubt that a plaintiff would not be entitled to relief under any conceivable set

of facts.” Id. (quoting Minardi, 21 A.3d at 278). Additionally, “[a] party may raise a statute-of-

limitations defense by way of a motion to dismiss, ‘provided the alleged timing defect appears on

the face of the complaint.’” Barrette v. Yakavonis, 966 A.2d 1231, 1234 (R.I. 2009) (brackets

omitted) (quoting Martin v. Howard, 784 A.2d 291, 297 (R.I. 2001)).

       “We review questions of statutory interpretation de novo.” State v. Hazard, 68 A.3d 479,

485 (R.I. 2013) (brackets omitted) (quoting Campbell v. State, 56 A.3d 448, 454 (R.I. 2012)). In



7
  It was learned at oral argument before this Court that an entity known as “Angel Realty”
purchased the property at the tax sale. However, prior to foreclosure of the right of redemption,
Bluedog paid the amount that Fogliare had owed in taxes and redeemed title to the property.
                                                 -6-
so doing, “our ultimate goal is to give effect to the purpose of the act as intended by the

Legislature.” Id. (quoting Alessi v. Bowen Court Condominium, 44 A.3d 736, 740 (R.I. 2012)).

However, “taxing statutes are to be strictly construed with doubts resolved in favor of the

taxpayer.” Balmuth v. Dolce for Town of Portsmouth, 182 A.3d 576, 585 (R.I. 2018) (quoting

Maggiacomo v. DiVincenzo, 122 R.I. 615, 618, 410 A.2d 1332, 1333 (1980)).

                                                  III

                                             Discussion

       “This Court frequently has emphasized that the taxing statutes provide the exclusive relief

to any person aggrieved by any assessment of taxes against him by any city or town.” Lehigh

Cement Co. v. Quinn, 173 A.3d 1272, 1278 (R.I. 2017) (quoting Minardi, 21 A.3d at 278).

“Section 44-5-26(a) provides an administrative appeal process to ‘any person aggrieved on any

ground whatsoever by any assessment of taxes against him or her.’” Id. (brackets and deletion

omitted). “Appeals are to the local office of tax assessment in the first instance; and then, if still

aggrieved, the taxpayer may appeal to the local tax board of review.” Id. “Section 44-5-27

provides that the remedy set forth in § 44-5-26 is exclusive ‘except that, in a proper case, the

taxpayer may invoke the equity jurisdiction of the Superior Court.’” Id. (brackets omitted) (quoting

§ 44-5-27). “This Court has also explained that ‘a taxpayer alleging an illegal tax may proceed

directly to the Superior Court.’” Id. (quoting Minardi, 21 A.3d at 278).

       The full text of § 44-5-27 reads:

               “The remedy provided in § 44-5-26 is exclusive if the taxpayer
               owned or possessed any ratable estate at all, except that, in a proper
               case, the taxpayer may invoke the equity jurisdiction of the
               [S]uperior [C]ourt; provided, that the complaint is filed within three
               (3) months after the last day appointed for the payment, without
               penalty, of the tax, or the first installment of the tax, if it is payable
               in installments. A taxpayer alleging an illegal or void tax assessment
               against him or her is confined to the remedies provided by


                                                  -7-
                § 44-5-26, except that the taxpayer is not required to file an appeal
                with the local assessor.” (Emphasis added.)

        Because Bluedog’s complaint alleged that at least part of the property was located in the

city, this is not a case where there was no ratable estate to tax in Providence. See § 44-5-27 (“The

remedy provided in § 44-5-26 is exclusive if the taxpayer owned or possessed any ratable estate at

all * * *.”); see also St. Clare Home v. Donnelly, 117 R.I. 464, 469, 368 A.2d 1214, 1217 (1977)

(“However, our examination of [§ 44-5-26] leads us to conclude that this restriction is not

applicable where the taxpayer possesses only tax-exempt property which is not ratable.”). At

bottom, then, Bluedog’s complaint essentially alleges an overassessment of taxes, not an illegal

tax. Under these circumstances, because Bluedog has failed to comply with the taxing statutes, its

complaint must fail as a matter of law. Nevertheless, even if we assume for purposes of

defendants’ motion to dismiss that Bluedog had alleged an illegal tax, there is no question that

Bluedog did not file its complaint within the three-month statute of limitations set forth in

§ 44-5-27.

        We have noted that “[t]he ability of a taxpayer to file a suit in equity directly in the Superior

Court, however, is sharply circumscribed by a brief limitations period. Lehigh Cement Co., 173

A.3d at 1278 (quoting § 44-5-27). Section 44-5-5 vests municipal councils with the ability to

“determine the date on which taxes are due and payable and the date on which they are subject to

a penalty[.]” For tax year 2015, the Providence City Council, by Providence City Ordinance No.

335 of Ch. 15-12, approved on June 11, 2015, mandated that the first installment of tax payments

be made on or before July 24, 2015. It follows that, because § 44-5-27 requires that the complaint

be filed “within three (3) months after the last day appointed for the payment, without penalty, of

the tax, or the first installment of the tax[,]” the statute of limitations for an action under that section




                                                    -8-
would have run on October 24, 2015. Therefore, on its face, Bluedog’s complaint, filed on June

2, 2016, was untimely.

       Bluedog attempts to “slay this procedural Goliath[,]” Lehigh Cement Co., 173 A.3d at

1278, by arguing that a declaratory-judgment action alleging the assessment of illegal taxes falls

outside the taxing statutes and, thus, is not subject to the statute of limitations in § 44-5-27.

However, this Court has stated that “the taxing statutes provide the exclusive relief to any person

aggrieved by any assessment of taxes against him by any city or town.” Id. (emphasis added)

(quoting Minardi, 21 A.3d at 278). Therefore, any action challenging the assessment of taxes, for

any reason, that does not follow the normal procedures set forth under § 44-5-26, must be brought

pursuant to § 44-5-27. Accordingly, even when resolving all doubts in the complaint in favor of

Bluedog, we hold that the hearing justice did not err when she granted the defendants’ motion to

dismiss pursuant to Rule 12(b)(6). See Gannon, 200 A.3d at 1077.

                                                IV

                                           Conclusion

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

remand the papers to that tribunal.




                                               -9-
STATE OF RHODE ISLAND AND                                   PROVIDENCE PLANTATIONS



                          SUPREME COURT – CLERK’S OFFICE

                                  OPINION COVER SHEET

                                      Bluedog Capital Partners, LLC v. John A. Murphy, in
Title of Case                         his capacity as Tax Collector for the City of
                                      Providence, et al.
                                      No. 2017-138-Appeal.
Case Number
                                      (PC 16-2572)
Date Opinion Filed                    May 1, 2019
                                      Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                      Indeglia JJ.
Written By                            Associate Justice Gilbert V. Indeglia

Source of Appeal                      Providence County Superior Court

Judicial Officer From Lower Court     Associate Justice Netti C. Vogel
                                      For Plaintiff:

                                      John O. Mancini, Esq.
                                      Michael J. Farley, Esq.
Attorney(s) on Appeal
                                      For Defendants:

                                      Lisa Fries, Esq.
                                      Samuel A. Budway, Esq.

 




SU‐CMS‐02A (revised June 2016) 
