Diorio v. Hines Rd., LLC
| Decision Date | 30 March 2020 |
| Docket Number | PC 14-4918 ,No. 2018-207-Appeal.,2018-207-Appeal. |
| Citation | 226 A.3d 138 |
| Parties | Joseph and Anggita DIORIO v. HINES ROAD, LLC, et al. |
| Court | Rhode Island Supreme Court |
For Plaintiffs: Jennifer R. Cervenka, Esq., Paul Kessimian, Esq., Emily J. Migliaccio, Esq.
For Defendants: Kathleen M. Daniels, Esq., Michael A. DeSisto, Esq., Michael A. Kelly, Esq., Andrew G. Blais Esq., Kelley N. Morris, Esq.
Present: Suttell, C.J., Goldberg, Robinson, and Indeglia, JJ.
The plaintiffs, Joseph Diorio and Anggita Diorio (the Diorios), appeal from a June 6, 2018 final judgment of the Providence County Superior Court entered pursuant to Rule 54(b) of the Superior Court Rules of Civil Procedure. That judgment was in favor of defendants Thomas Hefner, Esq., in his capacity as Solicitor for the Town of Cumberland (Solicitor Hefner); Neil Hall, in his capacity as the Building and Zoning Official for the Town of Cumberland (Building Official Hall); and the Town of Cumberland (the Town) (collectively the Town defendants).1 The entry of final judgment followed the grant of the Town defendants' motion for summary judgment based on the ground of prosecutorial immunity.
This case came before the Supreme Court for oral argument pursuant to an order directing the parties to show cause why the issues raised in this appeal should not be summarily decided. After considering the written and oral submissions of the parties, and after a thorough review of the record, we are of the opinion that cause has not been shown and that the appeal may be resolved at this time without further briefing or argument.
For the reasons set forth in this opinion, we affirm in part and vacate in part the judgment of the Superior Court.
In relating the basic facts, we rely on: this Court's previous decision in this case, Hines Road, LLC v. Hall , 113 A.3d 924 (R.I. 2015) ( Hines I ); the hearing justice's bench decision; and various documents in the record.
At all times relevant to this case, plaintiffs lived at 21 Georgiana Drive in Cumberland, Cumberland Tax Assessor's Plat No. 49, Lot No. 56 (the Diorio property). Hines Road, LLC (Hines) owned the abutting property, 138 Wrentham Road, Cumberland Assessor's Plat No. 49, Lot No. 57 (the Hines property).2 The complaint in this case averred that, in 2006, Hines built a retaining wall on its property in close proximity to the property line that it shared with the Diorios. The complaint went on to allege that the wall was fifteen feet high and had been built: (1) without "a required soil erosion and sedimentation control plan;" (2) "without a required performance bond;" (3) "in violation of Town performance principles and guidelines for new developments;" (4) "without a state building permit;" and (5) "in violation of State Building Codes." The Town defendants contend that the wall was built without the knowledge of the Town.
In 2008, the Town cited Hines with respect to the retaining wall, stating that the retaining wall "present[ed] a hazard to the general public" and ordering its removal. Subsequently, in March of 2010, Building Official Hall issued to Hines a "Notice for Violation of Building Code * * * and or Cumberland Zoning Ordinance" (Notice of Violation) for failure to comply with the Rhode Island State Building Code and the Cumberland Code of Ordinances. A Stop-Work Order was also issued at that time. Moreover, the complaint averred that Building Official Hall ordered Hines to remove the wall. In September of 2010, Building Official Hall issued another Notice of Violation, which again ordered Hines to remove the retaining wall. Thereafter, on March 31, 2011, the Town entered into a written agreement with Hines, in which Hines agreed to bury the wall according to an approved soil erosion and sedimentation control plan and permit by July 31, 2011.
According to the complaint in the case before us, Hines did not bury the wall by the date set forth in its written agreement with the Town. On July 13, 2012, Building Official Hall issued yet another Notice of Violation to Hines, expressly indicating that, if Hines did not remove the "unsafe wall," the Town would have it removed and would place a lien on Hines's property in the land evidence records. There was then ongoing communication between Hines and the Town, in the course of which Building Official Hall continued to insist that the wall be taken down. The complaint contends that, throughout the Summer of 2012, despite the July 13, 2012 Notice of Violation instructing Hines to remove the wall, Hines proceeded instead to cover the retaining wall with soil, gravel, loam, and grass seed in accordance with the March 31, 2011 agreement between Hines and the Town—thus creating an earthen slope. According to the trial justice's decision, in October of 2012, Building Official Hall issued yet another Notice of Violation to Hines. Subsequently, in November of 2012, Hines filed a complaint in Providence County Superior Court seeking to litigate issues relating to the March 31, 2011 agreement between Hines and the Town.3 The Diorios moved to intervene in the Superior Court action, but their motion was denied. They appealed that denial to this Court in Hines I , and we affirmed the denial of their motion to intervene. Hines I , 113 A.3d at 931.
In the action brought against the Town by Hines, the Superior Court ultimately issued an order on October 14, 2015 granting Hines's motion for summary judgment on the count in its complaint seeking declaratory judgment and declaring that Hines had "complied with the terms of the Settlement Agreement with the Town dated March 31, 2011 and all terms and conditions therein, and the work completed by [Hines] on the retaining wall [was] in compliance with all state and local laws and regulations."
Meanwhile, the Diorios filed this action on October 7, 2014 against Hines, Robert Geddes d/b/a Byron Devcomm, Inc., and the Town defendants. The complaint in this case included the following counts: (1) Count One for declaratory judgment and injunctive relief; (2) Count Two for negligence; (3) Count Three for private nuisance; (4) Count Four for trespass; and (5) Count Five for intentional infliction of emotional distress. All counts were directed at all defendants.
Ultimately, on May 1, 2017, the Town defendants filed a motion for summary judgment alleging that they were immune from suit under the doctrine of prosecutorial immunity.4 A hearing on that motion was held on November 7, 2017. The hearing justice issued a bench decision on December 4, 2017, granting the Town defendants' motion for summary judgment. We relate below the salient aspects of that decision.
The hearing justice began her decision by explaining that prosecutorial immunity provides "immunity to prosecutors" with respect to "their decision-making process whether to bring cases or not bring cases, how to proceed," which is an "extension of * * * quasi-judicial immunity * * *." She noted that said immunity exists not necessarily "for the protection or benefit of a malicious or corrupt prosecutor, but rather is for the benefit of the public, whose interest it is that the prosecutors should be at liberty to exercise their functions with independence and without fear of consequences."
The hearing justice first addressed Solicitor Hefner. She stated that it was "clear" to her that he was "immune from liability because he [was] a prosecutor." She added that "[i]ndeed, it was [Solicitor] Hefner's job to initiate an action that he deemed appropriate in Rhode Island Superior Court to compel compliance with the numerous Town-issued notices of an unsafe structure." She opined that that was the "textbook definition * * * of what prosecutorial immunity is meant for."
However, with respect to the status of Building Official Hall, the hearing justice found it to be a "harder issue * * *." She stated that she did not initially see how Building Official Hall carried out prosecutorial functions such that he would be protected by prosecutorial immunity. However, she went on to further state that, after listening to the parties and examining legal authorities, she had come to the conclusion that "the [c]ourt is instructed to look at the nature of the function being performed and not the official title that someone holds." She proceeded to state that "what's really being argued is a failure to enforce the violations that were issued." For that reason, it was her determination that prosecutorial immunity was applicable to Building Official Hall in this case.
With respect to the Town, the hearing justice stated that "a suit against a state official in his or her official capacity is not a suit against the official, but rather is a suit against the official's office." She thus held that, because Solicitor Hefner and Building Official Hall had been sued in their official capacities, their immunity extended to the Town as well.
Lastly, the hearing justice addressed the applicability of G.L. 1956 § 23-27.3-124.5,5 which had been relied upon by the Diorios. The Diorios argued that that statutory section imposed a mandatory duty on Solicitor Hefner to bring a Superior Court action when a structure is deemed unsafe. The hearing justice noted that she did consider the statutory scheme when reaching her conclusions in this case, but that, once it was determined that the Town defendants could avail themselves of prosecutorial immunity, she did not think that "those [statutory] provisions and their mandatory nature would necessarily change [her] conclusion * * *."
An order entered granting summary judgment for the Town defendants on March 2, 2018. Final judgment pursuant to Rule 54(b) was subsequently entered on June 6, 2018 in favor of the Town defendants. The plaintiffs filed a timely notice of appeal.
The issue with which this Court is confronted is: whether or not the hearing justice erred in applying prosecutorial...
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