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Fitzgerald v. City of Bangor
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 50 
Docket:	Pen-98-423
Argued:	March 3, 1999
Decided:	March 30, 1999

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.

CHARLES FITZGERALD

v.

CITY OF BANGOR

SAUFLEY, J.

	[¶1]  Charles Fitzgerald appeals from the judgment of the Superior
Court (Penobscot County, Delahanty, J.) in favor of the City of Bangor on the
City's claim of title to real property through the foreclosure of a tax lien.  
Fitzgerald asserts that he should have been allowed to assert equitable
estoppel as a defense to the City's claim.  We affirm the judgment.

I.  BACKGROUND

	[¶2]  In 1994, Charles Fitzgerald owned, among others, two properties
in Bangor.  The properties, known as the "Freese's Building" and the
"Dakin's Building," were subject to a first mortgage held by Bruce Slovin. 
Because Fitzgerald had failed to pay property taxes on both buildings for
several years, the City had placed tax liens on each property.  At issue in this
matter are the liens for tax year 1993.  Fitzgerald does not dispute the City's
process in placing liens on the property.  
	[¶3]  The 18-month period of redemption on the 1993 liens was to
expire as to both properties on December 7, 1994.  To prevent the
automatic foreclosure of the liens, Fitzgerald was required to pay $7,996.63
on the Dakin's Building, and $21,102.01 on the Freese's Building by the end
of the business day on December 7, 1994.  Unbeknown to Fitzgerald, Slovin
paid the full amount due on the Dakin's Building midway through the
afternoon of December 7, 1994. 
	[¶4]  Fitzgerald arrived at the Bangor City Hall late in the afternoon of
December 7, 1994 intending to pay the taxes on the Dakin's building.  He
asked the accounts clerk to tell him the amount that was due on the two
buildings.  Because a different clerk had waited on Slovin, and because
payments made after noon are not posted until the following day, the clerk
told him (incorrectly) that $7,996.63 was still due on the Dakin's Building. 
Fitzgerald then paid that amount in full.  The City accepted his payment on
the Dakin's building and, when the double payment was discovered,
Fitzgerald's payment was credited to more recent outstanding tax
obligations on the Dakin's building. See 36 M.R.S.A. § 906 (1990) (requiring
a municipality to apply any property tax payment received against
outstanding or delinquent taxes due on that property).
	[¶5]  Fitzgerald alleges that he had decided to pay the taxes on the
Dakin's building because he had limited resources and because the Dakin's
building was occupied by paying tenants, whereas the Freese's building was
unoccupied.  He was aware that he would lose the Freese's building to the
City.  He asserts, however, that on December 7 he had enough money to pay
the amount due on either the Dakin's Building or the Freese's Building, but
not both.  Therefore, he argues, had he been given the correct information,
he could have used his money to pay the amount due on the Freese's
Building. 
	[¶6]  Because no payment was made on the Freese's Building on
December 7, 1994, Fitzgerald's right to redeem the property expired by
statute, and the City's tax lien was deemed to have been foreclosed.  See 36
M.R.S.A. § 943 (1990 & Supp. 1998).{1}
	[¶7]  The present case was commenced when Bruce Slovin brought an
action against Fitzgerald and the City of Bangor seeking to foreclose his
mortgage on the Freese's Building and requesting the Superior Court to
determine the priorities of the parties holding interests in the property.  
Slovin and Fitzgerald eventually entered into a settlement, and the court
denied the City's motion for summary judgment.  The City then began
administrative proceedings to use its eminent domain power to acquire the
Freese's Building.{2}  Fitzgerald responded by filing an action challenging the
exercise of eminent domain power by the City, and that action was
consolidated with the foreclosure action originally filed by Slovin. 
	[¶8]  In preparation for trial, the City filed a motion in limine, asking
the court to exclude all evidence proposed to be offered at trial in support of
Fitzgerald's claim that, as a result of the incorrect information given to
Fitzgerald by the clerk on December 7, the City was equitably estopped from
asserting that it had acquired title to the Freese's Building through
foreclosure of its tax lien.  After a hearing, the Superior Court granted the
City's motion, holding that Fitzgerald's estoppel theory "may not be invoked
against the City of Bangor in the exercise of its responsibilities involving
taxation."
	[¶9]  By agreement, Fitzgerald voluntarily dismissed the remainder of
his claims with prejudice, facilitating the appeal of his estoppel claim.  The
Superior Court, pursuant to Fitzgerald's motion under M.R. Civ. P. 54(b)(1),
entered an order certifying as a final judgment its decision to grant the City
of Bangor's motion in limine, which effectively foreclosed any defense
Fitzgerald may have offered to the City's claim of title and resulted in a
judgment for the City.  This appeal followed.

II.  DISCUSSION

	[¶10]  Fitzgerald argues that the court erred either in determining
that a taxpayer may never assert a defense of equitable estoppel against a
municipality exercising its taxation authority, or in determining that the City
was, in fact, exercising that authority when its accounts clerk gave Fitzgerald
incomplete or inaccurate information.{3}  We review the grant of a motion in
limine for an abuse of discretion by the trial court.  See Jones v. Route 4
Truck & Auto Repair, 634 A.2d 1306, 1308 (Me. 1993).  To have properly
exercised its discretion, the Superior Court must have applied the correct
law to facts that were not clearly erroneous.  See Hamill v. Liberty, 1999 ME
32, ¶ 4, __ A.2d __.  Thus, we must determine whether the court correctly
held that the city clerk was acting in the exercise of the City's taxation
authority and, if so, whether the court's conclusion that equitable estoppel
will not lie against the government in this matter was correct.

A.  The Clerk's Actions

	[¶11]  In its decision addressing the City's motion in limine, the
court held that "[t]he dispensing of information regarding taxes due and the
accepting of tax payments by a collections clerk working for the City of
Bangor are two duties that serve to further the City's aim of collecting
taxes."  We agree.  The entire process of collecting taxes, from valuation and
assessment of property to the provision of information regarding amounts
due and the acceptance of the funds for payment are part of a unitary
process intended to assure that the government is carrying out its
"paramount function [of taxation] by which it is enabled to exist and function
at all."  Maine School Admin. Dist. No. 15 v. Raynolds, 413 A.2d 523, 533
(Me. 1980).  Fitzgerald argues that, by giving him accounting information
and taking his money, the clerk was not exercising the City's authority to tax
but was simply performing the clerical task of receiving funds on behalf of
the City.
	[¶12]  In this context, however, there is no principled basis for
recognizing a distinction between the actions of a clerical worker
responsible for providing information relative to the collection of taxes and
the actions of an administrator or official responsible for making
discretionary decisions concerning the government's tax power.  The
dissemination of information and receipt of funds are actions as integral to
the collection of taxes as are the actions that result in the assessment of the
taxes.  
	[¶13]  The rationale for the rule precluding the assertion of estoppel
against the government in tax cases is to assure that no officer of
government has the ability to interfere inadvertently with the government's
fundamental sovereign power to tax its citizens.  See A.H. Benoit & Co. v.
Johnson, 160 Me. 201, 207-10 (1964).  This rationale should logically apply
to the clerk who supplied Fitzgerald with incorrect information.  The
foreclosure of a tax lien is a procedure governed by statute, see 36 M.R.S.A.
§ 943 (1990 & Supp. 1998), which cannot be rescinded because of the
misstatements of a government employee to the taxpayer.  See Flower v.
Town of Phippsburg, 644 A.2d 1031, 1031 (Me. 1994).  We therefore
decline to treat the more clerical aspects of the government's taxation
activities as distinct from its other taxation activities for purposes of
examining the taxpayer's ability to assert a defense of equitable estoppel
against the government.

B.  Application of Equitable Estoppel Against the Government

	[¶14]  The common law prohibition against the assertion of equitable
estoppel against the government or its officials has been relaxed in recent
decades, and we have held unequivocally that application of equitable
estoppel based on the discharge of governmental functions is not completely
barred.  See M.S.A.D. No. 15, 413 A.2d at 533.  Nonetheless, the ability of a
party to assert an estoppel defense against the government may be limited
depending upon the "totality of the circumstances involved, including the
nature of the government official or agency whose actions provide the basis
for the claim and the governmental function being discharged by that official
or agency."  F.S. Plummer Co. v. Town of Cape Elizabeth, 612 A.2d 856, 861
(Me. 1992) (emphasis added).
	[¶15]  When the governmental function at issue is the discharge of
responsibilities regarding taxation, we have consistently held that estoppel
may never be invoked.  See Town of Freeport v. Ring, 1999 ME 48,
¶ 13,       A.2d      ; Flower, 644 A.2d at 1031; A.H. Benoit & Co., 160 Me. at
210; Dolloff v. Gardiner, 148 Me. 176, 186-87 (1952); Town of 
Milo v. Milo
Water Co., 131 Me. 372, 378-79 (1932).{4}
	[¶16]  Notwithstanding the consistent application of the prohibition in
past cases, Fitzgerald urges us to relax the rule.  Even if we were to consider
a relaxation of the rule, however, we would not do so on the facts presented
here.{5}  
	[¶17]  Equity will not protect a party who has slept on his rights or
failed to act with reasonable diligence.  See Searles v. Bar Harbor Banking &
Trust Co., 128 Me. 34, 40 (1929).{6}  Fitzgerald simply did not act with the
reasonable diligence necessary for us to consider a change in our
longstanding rule that the government cannot be estopped from exercising
its power of taxation.  Fitzgerald neither claims that he was misled as to the
status of the lien on the Freese's building, nor that he made an attempt to
pay the taxes on the Freese's building.  Rather, he made a calculated
decision to allow the City to foreclose the lien on the Freese's building, and
chose instead to wait until the very last minute to pay the taxes on the
Dakin's building.  
	[¶18]  Although Fitzgerald correctly asserts that the law allows him to
pay the taxes in the last hour of the final day in the period of redemption, if
he chooses to delay until that time, he may do so to his detriment.  His
eleventh hour decision, even if based on misinformation obtained from the
city clerk, is not the solid foundation which we would require before
considering the application of the doctrine of equitable estoppel in this 
context.  On these facts, we decline to reexamine the rule that equitable
estoppel may not be applied against the government when it is acting to
discharge its responsibilities regarding taxation.{7}
	[¶19]  Fitzgerald may not, therefore, invoke equitable estoppel to
challenge the City of Bangor's claim of title to the Freese's Building through
foreclosure of its tax lien.  The Superior Court properly applied the correct
law to the facts and did not exceed the bounds of its discretion in granting
the City's motion in limine.
	The entry is
Judgment affirmed.
Attorneys for plaintiff:

George Z. Singal, Esq., (orally)
James R. Wholly, Esq.
Gross, Minsky, Mogul & Singal, P.A.
P O Box 917	
Bangor, ME 04402-0917

Attorney for defendant:

Erik M. Stumpfel, Esq., (orally)
City Solicitor
73 Harlow Street
Bangor, ME 04401

Attorney for amicus curiae:

Richard P. Flewelling, Esq.
Maine Municipal Association
60 Community Drive
Augusta, ME 04330-9486