Corrado v. Providence Redevelopment Agency, 1360-A

• Decision Date: 22 August 1972
• Docket Number: No. 1360-A,1360-A
• Citation: 294 A.2d 387,110 R.I. 549
• Parties: Samuel CORRADO at ux. v. PROVIDENCE REDEVELOPMENT AGENCY. ppeal.
• Court: Rhode Island Supreme Court

Page 387

294 A.2d 387

110 R.I. 549

Samuel CORRADO at ux. v. PROVIDENCE REDEVELOPMENT AGENCY.

No. 1360-Appeal.

Supreme Court of Rhode Island.

Aug. 22, 1972.

Reargument Denied Sept. 26, 1972.

Samuel Corrado, pro se.

Timothy J. McCarthy, Paul F. Casey, Providence, for respondent.

OPINION

ROBERTS, Chief Justice.

This petition was brought on July 21, 1970, pursuant to G.L.1956, $ 45-32-34, by Samuel Corrado and his wife, hereinafter referred to as petitioners, seeking the assessment of damages for the taking of their property located on South Main Street in the city of Providence by the Providence Redevelopment Agency, hereinafter referred to as Agency, under powers of eminent domain granted Agency under §§ 45-32-5 and 45-32-24. Thereafter, respondent Agency moved that the case be assigned to the jury trial calender for December 14, 1970. This motion was granted over the petitioners' objection, and their appeal therefrom was dismissed by this court on November 17, 1970.

The case was reached for trial on December 14, 1970, and a jury was impaneled. However, the trial justice became aware that petitioners were without any expert witnesses to testify as to the value of the property and for that reason continued the case for two months. When the case was again reached for trial, the record is persuasive that both parties waived the right to jury trial, and the court awarded petitioners damages in the amount of $16,000 with interest, and judgment entered therefor on February 15, 1971. The Agency thereupon moved for a new trial on the ground that the damages were excessive and not supported by evidence, which motion was denied, and the Agency is now prosecuting an appeal to this court from the denial thereof and from the judgment entered on Febrary 15, 1971. On February 20, 1971, petitioners also prosecuted an appeal to this court from the judgment entered by the trial justice awarding damages in the amount of $16,000.

It is perhaps necessary to an understanding of this case to refer to petitioners' unsuccessful challenge to the legality of the adoption of the redevelopment plan and the validity of the taking. In 1966 respondent Agency, acting pursuant to the pertinent provisions of the enabling legislation, prepared a plan for the redevelopment of an area determined by it to be a 'deteriorated blighted area' within the meaning of the act. The plan was presented at a public hearing conducted by order of the city council, and on November 7, 1966, the city council by ordinance approved and adopted the proposed plan as the official redevelopment plan for East Side Project No. R.I. R-4. Included wuthin the area covered by the plan was the property of petitioners, which was to be rehabilitated and restored by a developer under a contract with the Agency.

It was not until November 8, 1968, that petitioners here filed a complaint, seeking to enjoin the Agency from taking that property by eminent domain and from entering into a contract with a redeveloper for the East Side Project. The case was ultimately heard before a justice of the Superior Court, and subsequently the trial justice ordered that petitioners' complaint be dismissed with prejudice. The judgment of the trial justice was appealed to this court, and petitioners' appeal was denied and dismissed. The dismissal rested on the fact that the challenge to the validity of the adoption of the redevelopment plan was not taken within the 30-day period established within the statute but was taken some two years thereafter. See Corrado v. Providence Redevelopment Agency, 105 R. I. 470, 252 A.2d 920 (1969). The petitioners then went to the Supreme Court of the United States, seeking a writ of certiorari, which was denied on January 12, 1970, 396 U.S. 1022, 90 S.Ct. 595, 24 L.Ed.2d 515, and subsequently, on April 6, 1970, petitioners' motion for rehearing was denied, 397 U.S. 1031, 90 S.Ct. 1268, 25 L.Ed.2d 546. Immediately thereafter, on April 17, 1970, respondent Agency filed a condemnation plat and, as heretofore noted, on July 21, 1970, the instant petition for the assessment of damages was filed by petitioners.

On April 10, 1970, petitioners had attacked for the second time the validity of the proceedings under which their land was taken, filing a complaint and seeking to bar the taking as invalid. On April 17, 1970, petitioners' prayer for a preliminary injunction was denied by a justice of the Superior Court, and they subsequently prosecuted an appeal from that interlocutory decree to this court. In an opinion filed on October 15, 1970, we held that the decree appealed from was interlocutory and raised no question that had been finally adjudicated in the court below and gence was not reviewable here. Consequently, we denied and dismissed the appeal. Corrado v. Providence Redevelopment Agency, 107 R. 628, 269 A.2d 551 (1970). At the time that the petition for the assessment of damages was tried in the Superior Court, this case was still pending in the Superior Court of this state on the question of whether petitioners were entitled to a permanent injunction against the Agency.

It is clear, then, that petitioner, Samuel Corrado, who is not a lawyer, upon finding himself confronted with two pending actions in the Superior Court, became perplexed as to the effect that his proceeding with one of those actions would have on the other. Understandably, neither his briefs nor his argument make clear the thrust of his contentions of error. Fundamentally, however, he appears to question the jurisdiction of the Superior Court to hear and determine his petition for the assessment of damages for the taking of his property. Complicating the problem was his fear that if he proceeded to prosecute his petition for the assessment of damages, he would be waiving or forfeiting his right to continue to prosecute his action seeking to enjoin the Agency from the taking of his property on the ground that it was illegal and invalid.

It is our opinion, however, that the Superior Court had jurisdiction under § 45-32-34 to hear and determine the petition for the assessment of damages for the taking. In the first place, petitioners, concededly the owners of the property prior to the taking which occurred with the filing of the condemnation plat on April 17, 1970, themselves filed the petition within the time period allowed therefor to an owner with notice of the taking. This clearly takes the case out of the jurisdictional limitation set out in Providence Redevelopment Agency v. Falcone, 92 R.I. 332, 168 A.2d 466 (1961), in which the court held that only an owner or owners may file a petition for assessment of damages under § 45-32-34. It is to be noted, further, that petitioners filed their petition on July 21, 1970. Therefore, it is clear that the petition was filed after the actual taking of the property by the Agency and was, therefore, not premature within the rule stated in Goff v. Pawtucket, 13 R.I. 471 (1881), and Daigneault v. Woonsocket, 18 R.I. 378, 28 A. 346 (1893).

Having concluded, then, that the trial justice had jurisdiction to hear and determine the petition to assess damages under § 45-32-34 and there being no showing that his exercise of that jurisdiction constituted an abuse of his judicial discretion, we make no decision on the question of whether a determination of that petition for the assessment of damages would constitute a waiver or forfeiture of petitioners' right to prosecute their action challenging the validity of the taking then pending in the Superior Court. Fundamentally, our reason for this is that there is no final decision of the Superior Court before us with respect to the issue raised in that proceeding. It would appear that at the pertinent time it was pending in the Superior Court on a hearing for permanent injunction and that the Superior Court has taken no action to determine whether petitioners were entitled to such injunctive relief....