Clark v. Buttonwoods Beach Association, 041520 RISC, 2018-17-Appeal

Docket Nº2018-17-Appeal
Opinion JudgePaul A. Suttell, Chief Justice
Party NameDavid Clark et al. v. Buttonwoods Beach Association.
AttorneyFor Plaintiffs: Stephen A. Rodio, Esq. Attorney(s) on Appeal For Defendant: John P. McCoy, Esq., Todd J. Romano, Esq.
Judge PanelPresent: Suttell, C.J., Goldberg, Robinson, and Indeglia, JJ. Justice Flaherty
Case DateApril 15, 2020
CourtSupreme Court of Rhode Island

David Clark et al.


Buttonwoods Beach Association.

No. 2018-17-Appeal

Supreme Court of Rhode Island

April 15, 2020

Superior Court Kent County KC 14-271 Jeffrey A. Lanphear Associate Justice

For Plaintiffs: Stephen A. Rodio, Esq. Attorney(s) on Appeal

For Defendant: John P. McCoy, Esq., Todd J. Romano, Esq.

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


Paul A. Suttell, Chief Justice

Located on a peninsula jutting out into Greenwich Bay, Buttonwoods is an historic and peaceful neighborhood in Warwick that traces its origins to a Baptist summer colony established in the "early nineteenth century * * * where people could combine recreational and religious activities in a wholesome, respectable environment."2 The original tents have since been replaced by private homes and common facilities such as tennis courts and a multipurpose community building known as the "casino," yet in many respects time has seemed, if not to have stopped, at least to have slowed in Buttonwoods. To a large extent, it has retained its historic charm and it remains a pleasant neighborhood in which to live and to raise a family. It is also the scene of the appeal now before the Court.

When the plaintiffs, Judith and David Clark, purchased 243 Promenade Avenue in Buttonwoods (the property) in 2009, they believed they had also bought the waterfront lot across the street from their new home. Two years later, after a neighborhood association president told plaintiffs they did not own the entire waterfront lot, they commissioned a property survey. The survey showed that part of the land described in their deed was also included in an eighty-foot-wide public way owned by the neighborhood association, the defendant Buttonwoods Beach Association (BBA).3 The plaintiffs filed suit against the BBA, alleging that they owned the property by adverse possession and acquiescence. The plaintiffs' claims were tried without a jury, and the trial justice concluded that plaintiffs had not proven either claim.

The plaintiffs now appeal from the judgment entered in favor of defendant, arguing that the trial justice misconceived and misconstrued the evidence at trial and erred as a matter of law when he concluded that plaintiffs had not satisfied the elements for claiming the disputed portion of the waterfront lot property by adverse possession.4 For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.


Facts and Travel

The Buttonwoods neighborhood in Warwick has several common areas, including tennis courts, a chapel, a baseball field, the "casino," and a beach area at the end of Buttonwoods Avenue. These common areas, as well as the roads within the neighborhood, are owned by the BBA. The BBA leases the roads to the Buttonwoods Fire District (BFD). The BBA is a private corporation, described through trial testimony as founded to be "the steward[] of the land, to protect * * * and preserve the land" for future generations. The BBA is owned by stockholders; Buttonwoods property owners were eligible to purchase up to two shares per household at $100 per share after they had been a resident for two years. The BFD was described in trial testimony as "the manager of all of [the common areas] and it has a special taxing authority enabling it to fund those maintenance obligations." The BFD is run by three supervisors elected by residents of the neighborhood.

Judith and David Clark bought two properties in Buttonwoods in June 2009. One of the properties had a residence and a carriage house with an address on Promenade Avenue, and the other property had a residence with an address on Cooper Avenue. A brick walkway beginning at the base of the front porch of the residence on Promenade Avenue leads to a sidewalk and resumes across a paved roadway, continuing through a hedge with a white gate to a grassy area, beyond which is a concrete patio bordering a seawall, the beach, and the water of Greenwich Bay. (The area between the paved roadway and the seawall is hereinafter referred to as the waterfront lot.) The Clarks demolished the residence on Cooper Avenue, leaving an open space; merged this lot with 243 Promenade Avenue; and moved into the residence at 243 Promenade Avenue (hereinafter referred to as the residential lot). The residential lot and the waterfront lot are separated by a paved street, approximately twenty feet in width, known as Promenade Avenue. As the Clarks' survey disclosed, however, the full width of the Promenade Avenue right-of-way is eighty feet.

In July 2011, the Clarks posted four "private property" and "no trespassing" signs at various points on the waterfront lot after they had seen some strangers fishing off the seawall, asked them to leave, called the police, and received advice from the responding officer that they were exposing themselves to liability by not having any "no trespassing/private property" signs posted. Sometime after the Clarks posted the signs, Susan Phipps, a neighbor and then-President of the BBA, sent plaintiffs an email stating that the waterfront lot did not belong to them and instructed them to remove the "private property" signs. And so began the instant dispute between the Clarks and the BBA.

In March 2014, the Clarks filed a complaint in Kent County Superior Court against the BBA, claiming ownership of the entire waterfront lot by adverse possession and acquiescence by the BBA and seeking to quiet title to this lot. The case proceeded to a nonjury trial over six days in September 2016.5 The trial justice heard testimony from plaintiff Judith Clark, six prior owners of 243 Promenade Avenue, four former BBA presidents, an attorney, a realtor, and a surveyor.

Peter Weichers, who owned the property from January 3, 1986, until October 20, 1989, testified that, when he bought the property, the realtor from the real estate agency told him he would own the entire residential lot as well as the entire waterfront lot. His realtor did not mention any property owned by the BBA. Weichers testified that, without asking permission from anyone, he planted a row of shrubs, installed a gate on the waterfront lot, and removed the existing seawall to replace it with a new one. No one from the BBA contacted him about the improvements he made to the waterfront lot. He also maintained the waterfront lot the entire time he owned the property.

Guy Hurley6 bought the property from Weichers on October 20, 1989. When Hurley bought the property, he did not investigate the actual boundaries-he assumed that the fences around the residential lot marked the boundaries of that property and that the waterfront lot included the area from the hedge to the beach. Hurley testified that he was taxed on both properties, separately. Hurley also testified that no one ever told him differently about his ownership status; he believed he had clear title to both properties. With respect to the waterfront lot, Hurley built a fence at the edge of the concrete patio and seawall to prevent people from falling off the seawall down to the beach. He also planted some shrubs on the waterfront lot and paid a landscaping company to maintain the waterfront lot during the tenure of his ownership. Hurley allowed neighbors to sit on the seawall and the beach. Hurley also testified that he had served as the head of the BFD as well as president of the BBA.

The Zigerellis bought the property on February 16, 1999. Nancy Zigerelli testified that she installed a stamped concrete walkway on the waterfront lot to match the walkway on the residential lot that began at the base of the front porch and ended at the sidewalk. Mrs. Zigerelli testified that she installed a bench on the waterfront lot, planted daylilies, installed a gate to fill the gap between the hedges near the street on the waterfront lot, and installed an underground sprinkler system (running the irrigation system under Promenade Avenue to reach the waterfront lot). She also paid a landscaping company to maintain the waterfront lot. Mrs. Zigerelli further testified that she requested permission from the BBA before she made any of the installations described above, but she did not have a record of those requests or the permissions granted by the BBA. At the BBA annual meeting the year she bought the property, Mrs. Zigerelli learned that part of the waterfront lot belonged to the BBA. She testified that she had received a pamphlet with all of the BBA's rules, which included information stating that Promenade Avenue was eighty feet wide. She also testified that she "made it clear that people were welcome" to use the waterfront lot, that she had installed the gate on the waterfront lot to prevent her young children from being able to quickly access the water unaccompanied by an adult, and that she had had no intention of claiming ownership to the waterfront lot.

Lawrence Zigerelli testified that he never believed he owned the entirety of the waterfront lot and that the unique location of the property boundaries had not concerned him because he believed in the principles of the general community and was happy to share the space. Mr. Zigerelli testified that the gate he and Mrs. Zigerelli installed on the waterfront lot was to keep his children safe and was never locked, but was merely kept closed to prevent their direct access to the water. He also testified that the first time he saw 243 Promenade Avenue, realtor and fellow Buttonwoods property owner Ronald Phipps told him that the property had not included the waterfront lot up to the seawall (but did include the seawall) and, on the residential lot, that the property had not included the front yard (because the residential lot ended at the base of the front porch). Since moving out of...

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