Gliottone v. Ethier

• Decision Date: 14 March 2005
• Docket Number: No. 2004-162-Appeal.,2004-162-Appeal.
• Citation: 870 A.2d 1022
• Parties: Silvestro GLIOTTONE v. Jeff ETHIER et al.
• Court: Rhode Island Supreme Court

870 A.2d 1022

Silvestro GLIOTTONE v. Jeff ETHIER et al.

No. 2004-162-Appeal.

Supreme Court of Rhode Island.

March 14, 2005.

Carl P. DeLuca, Warwick, for Plaintiff.

Daryl E. Dayian, Providence, for Defendant.

Present: WILLIAMS, C.J., GOLDBERG, FLAHERTY, SUTTELL, and ROBINSON, JJ.

OPINION

PER CURIAM.

This matter came before this Court for oral argument on January 18, 2005, pursuant to an order directing the parties to appear and show cause why the issues raised by this appeal should not summarily be decided. After hearing the arguments of counsel and examining the memoranda filed by the parties, we are of the opinion that cause has not been shown and that the case should be decided at this time.

Facts and Procedural History

The facts of this negligence case are brief and not subject to serious dispute. On October 6, 1999, plaintiff, Silvestro Gliottone, and defendant, Jeff Ethier, were involved in a motor vehicle accident in the City of Cranston. Just after 9 a.m. that day, plaintiff, while traveling in the northbound lane of Dyer Avenue, attempted to make a left-hand turn into a service station located on the opposite side of the road. While crossing the southbound lane to reach the station entrance, Mr. Gliottone's vehicle collided with defendant's vehicle. He sustained personal injury and both vehicles were significantly damaged.

The plaintiff filed a negligence action against defendant, seeking compensation for his medical bills, lost wages, pain and suffering, and property damages. When he was deposed, however, plaintiff testified that he had no recollection of the accident other than seeing a "white blur" just before striking his head on his windshield as a result of the force of the collision. In addition, plaintiff admitted that he never observed defendant's vehicle prior to the impact, did not know whether his foot was on the brake or accelerator at the time of the crash, and could not independently recall if he was wearing his seat belt. The plaintiff similarly was unable to testify about the speed at which defendant's vehicle had been traveling at the time of the collision. Additional discovery also revealed that plaintiff has no sight in his left eye.

The only eyewitness to the accident, Ms. Connie J. Martone, testified that she was traveling in the southbound lane of Dyer Avenue behind defendant's vehicle when the accident occurred. In her deposition, Ms. Martone explained that she observed plaintiff's vehicle cross the center of the roadway into oncoming traffic and strike defendant's vehicle head-on. She testified that plaintiff's vehicle did not display a directional signal at that time. The witness also estimated that Ethier's vehicle was traveling between twenty-five and twenty-eight miles per hour at the time of collision, and that defendant had no chance to apply the brakes to avoid being struck by plaintiff's vehicle. Martone emphasized throughout her testimony that plaintiff crossed into oncoming traffic so suddenly that defendant could not have avoided the accident.

At a pretrial conference conducted the morning the trial was scheduled to commence, the Superior Court justice presiding in the case encouraged defendant's counsel to file a motion for summary judgment on the ground that there were no material issues of fact to be submitted to the jury. Later that afternoon, defendant argued his motion, urging that plaintiff had failed during discovery to raise evidence sufficient to create a genuine issue of material fact about whether defendant's negligence had caused the collision. Without challenging the timeliness of the court's consideration of the motion, plaintiff argued that the damages to the vehicles, as depicted by several photographs taken at the scene of the accident, created an issue of fact as to defendant's comparative negligence. The plaintiff asserted that the photographs could support a reasonable inference that defendant was traveling at an excessive speed at the time of the collision. After hearing the arguments of counsel, the hearing justice granted the motion and entered summary judgment in favor of defendant. The plaintiff filed a timely notice of appeal.

Analysis

On appeal, plaintiff alleges both procedural and substantive errors in the hearing justice's ruling. First, plaintiff argues that the hearing justice abused his discretion in entertaining defendant's motion for summary judgment in the absence of a showing that plaintiff had received proper notice of the motion in accordance with Rule 56(c) of the Superior Court Rules of Civil Procedure.¹ That subsection unambiguously provides that motions for summary judgment "shall be served at least 10 days before the time fixed for the hearing." (Emphasis added.)

Although he frankly acknowledges his failure to object to the court's consideration of defendant's motion, plaintiff argues that the language of Rule 56(c) is mandatory, and thus, that the ten-day waiting period between the service of a motion for summary judgment and court hearing on that motion cannot be relinquished by any party. The defendant, on the other hand, disputes plaintiff's proposed interpretation of the ten-day provision of Rule 56(c) and argues, under our well-settled "raise or waive" rule, that plaintiff ceded his right to challenge this alleged error by failing to object before the hearing justice and by going forward with arguments on the motion. See State v. Grant, 840 A.2d 541, 546 (R.I.2004)

. Whether the failure to object to a court's consideration of a motion for summary judgment before the expiration of the ten-day notice period specified in the text of Rule 56(c) falls within the ambit of the "raise or waive" rule appears to be a novel question in this jurisdiction, as neither the text of the rule itself nor any decision of this Court speaks to the issue.² However, "[w]e have said many times that in situations in which our own case law is sparse in the area of civil procedure, we shall consult the precedents in the federal courts since our Superior Court Rules are patterned after the federal rules." Kelvey v. Coughlin, 625 A.2d 775, 776 (R.I.1993). See also Heal v. Heal, 762 A.2d 463, 466-67 (R.I.2000) ("where the Federal rule and our state rule are substantially similar, we will look to the Federal courts for guidance or interpretation of our own rule").

Looking to pertinent authority on this issue, it is apparent that the general precept of federal practice is that in the absence of an objection, the defect of untimely service under Rule 56 will be deemed waived. 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2719 (3d ed. 1998); 11 Moore' s Federal Practice, § 56.10[2][a] at 56-49 (Matthew Bender 3d ed. 2004) ("[t]he 10-day notice requirement may be waived if a party fails to object to a violation of the 10-day rule at the hearing on the summary judgment motion"). See Bottineau Farmers Elevator v. Woodward-Clyde Consultants, 963 F.2d 1064, 1073 (8th Cir.1992)

("We hold the defect of untimely service has been waived. [The plaintiff] did not object to the untimely service of the motion for summary judgment. In the absence of an objection, the defect of untimely service may be deemed waived."); Spence v. Latting, 512 F.2d 93, 97 (10th Cir.1975) (requirements of Rule 56(c) may be waived where nonmoving party made no objection to the motion and had no pending request for discovery).³ Other state courts that have had occasion to consider this issue likewise have held that failure to object to noncompliance with Rule 56(c)'s ten-day requirement results in a waiver of the argument on appeal. See McKenzie v. Killian, 887 So.2d 861, 865 (Ala.2004) (failure to object, which is properly presumed from silent record, results in waiver of nonmoving party's right to ten days notice under Rule 56(c) of the Alabama Rules of Civil Procedure); Wahle v. Medical Center of Delaware, Inc., 559 A.2d 1228, 1234 (Del.1989) (nonmoving party waived any objection to the court's procedures by failing to file a timely objection with the trial court); Richardson v. Citizens Gas & Coke Utility, 422 N.E.2d 704, 709 (Ind.Ct.App.1981) ("The [nonmoving party's] failure to include an objection to the motion based upon [Rule] 56(c) in their written response, as well as their failure to provide a record of the * * * hearing from which we could determine whether an oral objection was made, constitutes a waiver of this issue."). Because we discern no reason to deviate from the weight of authority from around the country on this question, we are of the opinion that challenges to the propriety of a hearing justice's consideration of a motion for summary judgment within ten days of the service of the motion are not exempt from the "raise or waive" rule. Therefore, if a party against whom a motion for summary judgment is made fails to object to the timing of the court's hearing on the motion, the defect in compliance with the ten-day requirement is waived and the court's consideration of the motion will not constitute reversible error.⁴ Accordingly, we reject plaintiff's argument that the ten-day period set forth in Rule 56(c) is of mandatory application in these circumstances.

Our review of the record in this case not only reveals that plaintiff failed to object to the timeliness of the hearing on defendant's motion for summary judgment, but that plaintiff, through counsel, specifically informed the hearing justice that he was "prepared to argue a motion for summary judgment if the Court sees fit" just prior to the commencement of the hearing on the motion. Moreover, the record establishes that the hearing justice took great care to ensure that the facts intended to be argued by defendant's counsel in support of his motion were known by both parties for at least ten days prior to the date on which the hearing occurred. Additionally, the court allowed plaintiff's counsel ample opportunity to introduce any facts to...