Cipolla v. RI COLLEGE, BD. OF GOVERNORS

• Decision Date: 15 December 1999
• Docket Number: No. 98-119-A.,98-119-A.
• Citation: 742 A.2d 277
• Parties: Anthony J. CIPOLLA v. RHODE ISLAND COLLEGE, BOARD OF GOVERNORS FOR HIGHER EDUCATION et al.
• Court: Rhode Island Supreme Court

742 A.2d 277

Anthony J. CIPOLLA v. RHODE ISLAND COLLEGE, BOARD OF GOVERNORS FOR HIGHER EDUCATION et al.

No. 98-119-A.

Supreme Court of Rhode Island.

December 15, 1999.

Present WEISBERGER, C.J., LEDERBERG, BOURCIER, FLANDERS, and GOLDBERG, JJ.

Ralph J. Perrotta, for plaintiff.

Nicholas Trott Long, Providence, for defendant.

OPINION

PER CURIAM.

This case came before the Supreme Court for oral argument on November 3, 1999, pursuant to an order directing the plaintiff, Anthony J. Cipolla, to show cause why the issues raised by this appeal should not be summarily decided. The plaintiff timely appealed the entry of a summary judgment in favor of the Board of Governors for Higher Education (board or defendant).¹ After hearing the arguments of counsel and reviewing the memoranda submitted by the parties, we are of the opinion that cause has not been shown, and therefore proceed summarily to decide the case.

On August 30, 1979, plaintiff began working at Rhode Island College (college), where he has been employed on a nearly continuous basis, with only one nineteen-week break in service. During his employment, plaintiff's salary always has been paid from outside grants to the college. Although the original grant did not include funding for pension contributions, each grant since 1980 has includedfunding for pension contributions. During his employment at the college, plaintiff has never been enrolled in the State of Rhode Island Employee Retirement System (ERS), and before 1988 the policies of the board did not permit employees supported by external grants to join TIAA-CREF, a private pension program for employees who were not members of ERS. In 1988, the board modified its policy and thereafter required employees such as plaintiff to become members of TIAA-CREF. On September 1, 1992, plaintiff was enrolled in the TIAA-CREF pension program, and his enrollment was made retroactive to September 1, 1991.

In 1993, plaintiff filed a grievance through the Rhode Island College Staff Association (RICSA), the union that represented him, alleging that the board had breached its duties under a collective bargaining agreement (CBA) by not enrolling plaintiff in TIAA-CREF beginning in 1982. The grievance was denied, and plaintiff did not proceed to arbitration, as he could have done under the CBA. In August 1996, plaintiff filed a complaint in Superior Court and again sought retroactive inclusion in a pension plan for the period in which he was employed by the college but not covered by any retirement program. Count 1 of the complaint argued that the board had violated its statutory duty, under G.L. 1956 chapters 8 to 10 of title 36, to enroll plaintiff in ERS. Count 2 asserted that the board had breached plaintiff's contract of employment.

In October 1996, the board filed a "motion to dismiss and for summary judgment," arguing, in part, that plaintiff's claim was barred by the doctrine of election of remedies because he had earlier attempted to resolve the dispute through the contractually agreed-upon grievance procedure. This argument was based not only on the pleadings, but also relied on an affidavit from the college's director of personnel that briefly set forth the facts concerning the grievance that had been filed. The motion wasargued before the justice assigned to the dispositive motion calendar on March 11, 1997, and was denied from the bench at the close of oral argument.

In October 1997, plaintiff filed his own motion for summary judgment, and defendant responded by filing a cross motion for summary judgment. Although defendant's cross motion made one new argument — that plaintiff's claim was barred by the doctrine of sovereign immunity — in all other respects the motion was nearly identical to the previous motion. A different justice was assigned to hear these summary judgment motions on the dispositive motion calendar, on December 9, 1997. During argument, defendant submitted a RICSA grievance letter in support of its election of remedies argument. At the close of argument, the second motion justice granted defendant's motion for summary judgment on the basis of the doctrine of election of remedies, and an order to that effect was entered on December 18, 1997.

The plaintiff filed a motion to alter or amend the judgment, arguing that under the law of the case doctrine, the second motion justice should not have overturned the decision made by the first motion justice. After oral argument on this motion, the second motion justice found that the first motion justice had denied only defendant's motion to dismiss but not defendant's motion for summary judgment, and thus the law of the case doctrine did not apply. An order denying the motion to alter or amend was entered on September 8, 1998. On the same date, an order was entered granting defendant's motion for summary judgment.²

The plaintiff appealed to this Court, arguing that because the first motion had been supported by facts outside the pleadings, the first motion justice must necessarily have been treating it as a motion for summary judgment. Thus, the decision denying that motion was the law of the case and should not have been revisited by the second motion justice. The defendant responded by arguing that the first motion justice denied only the motion to dismiss but not the motion for summary judgment, and therefore the second trial justice was justified in granting the motion given the additional evidence before him.

The law of the case doctrine provides that after one judge has decided an interlocutory motion in a pending suit, a second judge should refrain from disturbing the first ruling when confronted with the same question at a later stage of the suit. Commercial Union Insurance Co. v. Pelchat, 727 A.2d 676, 683 (R.I.1999). The purpose of the doctrine is to "ensure[ ] the stability of decisions and avoid[ ] unseemly contests between judges that could result in a loss of public confidence in the judiciary." Id. However, the doctrine applies only when the question that reaches the second judge is the same one that has already been decided by the first judge. See Shayer v. Bohan, 708 A.2d 158, 164 (R.I.1998)

(decision on a Super. R.Civ.P. 56 motion to be removed from the pleadings was not the law of the case governing the outcome of a later Super. R.Civ.P. 25(c) motion to be substituted as a party). In the case at bar, the first motion justice decided only the motion to dismiss and not the motion for summary judgment; hence, his decision did not bar consideration of the summary judgment motion by the second justice.

A motion to dismiss is made under Rule 12 of the Superior Court Rules of Civil Procedure, whereas a motion for summary judgment is made under Rule 56. A motion to dismiss must be made strictly on the pleadings, and under Rule 12(c), a motion to dismiss that relies on facts outside the pleadings must be treated as a Rule 56 motion for summary judgment. Bethlehem Rebar Industries, Inc.v. Fidelity and Deposit Co. of Maryland, 582 A.2d 442, 444 (R.I.1990); Tangleridge Development Corp. v. Joslin, 570 A.2d 1109, 1111 (R.I.1990).

The first motion justice had before him a "motion to dismiss and for summary judgment." It is true, as plaintiff alleged, that some of the arguments made in this motion relied on facts outside the pleadings and thus should have been treated as a motion for summary judgment. However, it is also true that some of the arguments relied strictly on the pleadings. Therefore, the first motion justice could properly have considered defendant's motion as being two separate motions, one for summary judgment and one to dismiss. When he stated that he was denying the motion to dismiss, he left ambiguous what action, if any, he was taking on the motion for summary judgment. We note that when the second motion justice considered plaintiff's argument that his decision violated the law of the case, he carefully reviewed the transcript of the hearing on the earlier motion and determined that the first motion justice had denied only a motion to dismiss.³ We agree with that determination and hold that the first justice's decision did not bar the second justice's consideration of a motion for summary judgment.

Because the law of the case did not bar the second justice from ruling on the motion for summary judgment, we must now consider whether summary judgment was properly granted. This Court reviews de novo the entry of a summary judgment. Rousseau v. K.N. Construction, Inc., 727 A.2d 190, 192 (R.I. 1999). We shall affirm a summary judgment if, after reviewing the evidence in the light most favorable to the nonmoving party, we determine that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Id.

In the present case, it is undisputed that plaintiff attempted to grieve his claim for retroactive pension enrollment under the CBA and...