Cull v. Vadnais

• Decision Date: 27 August 1979
• Docket Number: No. 77-442-A,77-442-A
• Parties: Edwin E. CULL et al. v. Edmond L. VADNAIS. ppeal.
• Court: Rhode Island Supreme Court

Page 1241

406 A.2d 1241

122 R.I. 249

Edwin E. CULL et al. v. Edmond L. VADNAIS.

No. 77-442-Appeal.

Supreme Court of Rhode Island.

Aug. 27, 1979.

[122 R.I. 258] Joseph F. Dugan, Providence, for plaintiffs.

Oster, Fay, Groff & Prescott, George M. Prescott, Lincoln, for defendant.

OPINION

BEVILACQUA, Chief Justice.

This is an appeal initiated by Edmond L. Vadnais from a Superior Court order on November 30, 1977. That order granted Edwin E. Cull's and Genevieve Gustafson's motions to attach real estate held by the defendant and his wife as tenants by the entirety, and to preliminarily enjoin the defendant from transferring his real estate pending service of the writ of attachment.

After the case was docketed in this court, plaintiffs filed a motion to dismiss the appeal on the grounds that the grant of the writ of attachment in the present case is not an appealable order and that this court should not review a lower court's grant of a writ of attachment by writ of certiorari. On January 19, 1978, defendant filed a motion in opposition to plaintiffs' motion to dismiss the appeal. Before addressing whether the trial court's grant of plaintiffs' motion to attach is an appealable order, we entered an order on March 2, 1978, remanding the case to the Superior Court in order to expedite disposition of the matter on its merits. While the case was pending in this court, the Superior Court heard the case on the merits pursuant to plaintiffs' motion for summary judgment and entered judgment for plaintiffs.

The facts, although not pertinent to the issues before us at this time, are summarized as follows. The plaintiffs filed a complaint in Superior Court upon learning that defendant had represented himself as secretary-treasurer of a bona fide loan association that both loaned money to employees of the Providence Journal and paid investors a high rate of return. Relying upon defendant's representation, plaintiffs loaned money to defendant at high interest rates. Later, plaintiffs learned that defendant had been personally loaning money to Providence Journal employees. The plaintiffs allege that they had been misled and the record reveals that defendant attempted to arrange a method whereby he could reimburse them. The plaintiffs then brought this action requesting compensatory and punitive damages and filed a motion with the trial court seeking a prejudgment attachment and an ex parte restraining order pending a hearing on their motion for a prejudgment attachment. The restraining order was granted the day the motion was filed. Later, plaintiffs filed a motion for a preliminary injunction. In the order granting plaintiffs' motion to attach defendant's property, the trial court also granted plaintiffs' motion for a preliminary injunction pending service of the writ of attachment.

After the trial court entered summary judgment for plaintiffs upon their motion, plaintiffs filed a renewed motion to dismiss defendant's appeal on the ground that the Superior Court's disposition of the case had mooted the issue on appeal. We have denied that motion.

The defendant has raised two issues before this court: (1) whether an order granting a prejudgment attachment of real property is properly appealable ¹ and (2) whether property held as a tenancy by the entirety is exempt from prejudgment attachment. ² We shall consider both of these issues, notwithstanding the fact that these questions have become moot as a result of the Superior Court's disposition of this case on its merits. These issues are of such importance that we have decided not to wait until a future date to render an opinion. Our decision at this time will thus avoid procedural duplication should a similar factual situation arise.

I

The defendant contends that the grant of a motion for a prejudgment attachment is a final judgment, appealable under G.L.1956 (1969 Reenactment) § 9-24-1. Section 9-24-1 reads as follows:

"Filing of appeal. Any party aggrieved by a final judgment, decree, or order of the superior court may, within the time prescribed by applicable procedural rules, appeal to the supreme court. Subject to the provisions of applicable procedural rules, such appeal shall be taken by filing a claim of appeal in the office of the clerk of the court from which the appeal is taken, and shall deposit with said clerk an amount not exceeding fifty dollars ($50.00) as prescribed by the rules and regulations of the supreme court."

The defendant cites E. J. Hansen Elevator, Inc. v. Stoll, 167 Conn. 623, 356 A.2d 893 (1975), in support of his position. In Hansen, the court found that orders that both grant and deny motions for a prejudgment remedy meet the tests of finality: the orders terminate a separate and distinct proceeding, conclude the rights of some or all of the parties, and effectuate a conclusion of the rights of the parties so that further proceedings cannot affect them. Id. at 626, 356 A.2d at 895.

The defendant also cites Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528, 1536 (1949), for the proposition that prejudgment attachment orders are not only collateral to rights asserted in the action, but also are too independent of the action itself to require deferral of appellate consideration until adjudication of the entire case. The Cohen case, however, which involved a denial of a motion to require the plaintiff to post security, was decided prior to the United States Supreme Court case Swift & Co. Packers v. Compania Colombiana Del Caribe, S. A., 339 U.S. 684, 70 S.Ct. 861, 94 L.Ed. 1206 (1950). Swift concerned an order that vacated a foreign attachment of a vessel. In Swift, the Supreme Court, In dictum, distinguished between a situation in which an order dissolves a prejudgment attachment and one in which such an attachment is upheld pending determination of the principal claim. Id. at 689, 70 S.Ct. at 865, 94 L.Ed. at 1210-11. In upholding appellate review in the former case only, the Court reasoned that

"(a)ppellate review of the order dissolving the attachment at a later date would be an empty rite after the vessel had been released and the restoration of the attachment only theoretically possible." Id.

The Court thus distinguished the result of an order dissolving a prejudgment attachment from the effect on the parties when an attachment is upheld pending resolution of the principal claim. In the latter event, the Court found that the rights of all the parties can be adequately protected during the course of litigation on the main cause of action. Id.

Notwithstanding the fact that defendant has requested us to follow the precedent set by the Connecticut court, we have chosen to adopt the reasoning of the United States Supreme Court in Swift. Therefore, as did the Supreme Court, we hold that orders granting prejudgment attachments are interlocutory and do not fall within the Cohen rule, which allows appeals when an order is deemed to "determine claims of right separable from, and collateral to, rights asserted in the action * * *." Cohen v. Beneficial Industrial Loan Corp., 337 U.S. at 546, 69 S.Ct. at 1225-26, 93 L.Ed. at 1536.

Alternatively, defendant argues that an order granting a prejudgment attachment has injurious consequences that vest in that order elements of finality. The defendant claims that these elements bring the order within the doctrine articulated by this court in McAuslan v. McAuslan, 34 R.I. 462, 83 A. 837 (1912). The McAuslan doctrine is an exception to the general rule that litigants generally may not obtain piecemeal review of their case in this court. See Eidam v. Eidam, 108 R.I. 673, 680, 279 A.2d 413, 417 (1971). The McAuslan court recognized that in many instances hardship and injury would result if this court were to refuse to hear certain appeals technically interlocutory in nature, when the merits of the cause had not yet been determined in the lower court. See McAuslan v. McAuslan, 34 R.I. at 470, 83 A. at 840. In these circumstances, " ' * * * the decree is held to possess such an element of finality as to bring it within the terms of the statute limiting the right to appeal only from final decrees.' " Id., quoting DuFour v. Lang, 54 F. 913, 916 (5th Cir. 1892). We extended the McAuslan rule to the facts in Eidam, where we held that an order vacating a prejudgment attachment possesses elements of finality because the injury apprehended is clearly imminent and irreparable. Eidam v. Eidam, 108 R.I. at 681, 279 A.2d at 417-18. However, we believe that usually no harm befalls defendants subject to prejudgment attachment orders in respect to real estate because prejudgment attachments do not obliterate property rights. ³ Instead, these attachments merely prevent defendants from disposing of their real property before the trial court can determine whether they are liable. See Application of Tiene, 19 N.J. 149, 160, 115 A.2d 543, 549 (1955) (status quo maintained). We thus hold as a general rule that because orders granting prejudgment attachments of real estate are interlocutory and involve no threat of hardship or injury, such orders do not fall within the McAuslan doctrine. ⁴

For the above reasons, we hold that orders allowing prejudgment attachments are not appealable.

II

The second issue raised by defendant is whether real estate held as a tenancy by the entirety is exempt from prejudgment attachment. ⁵

Tenancies by the entirety, as they were known at common law, are recognized in Rhode Island. Bloomfield v. Brown, 67 R.I. 452, 456, 25 A.2d 354, 356 (1942). At common law, tenancies by the entirety are created when there exist the four unities integral to the existence of the joint tenancy, namely the unities of time, interest, title and possession, Knibb v. Security Insurance Co., R.I., 399 A.2d 1214, 1216 (1979), plus the fifth unity, two natural persons as one person in law. Van Ausdall v. Van Ausdall, 48 R.I. 106, 108, 135 A. 850, 851 (1927)....