Nardone v. Ritacco

• Decision Date: 03 December 2007
• Docket Number: No. 2006-342-Appeal.,2006-342-Appeal.
• Citation: 936 A.2d 200
• Parties: Paul F. NARDONE et al. v. Natale RITACCO et al.
• Court: Rhode Island Supreme Court

936 A.2d 200

Paul F. NARDONE et al. v. Natale RITACCO et al.

No. 2006-342-Appeal.

Supreme Court of Rhode Island.

December 3, 2007.

Staci L. Kolb, Esq., Providence, for Plaintiff.

Michael P. Lynch, Esq., Westerly, for Defendant.

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

OPINION

Chief Justice WILLIAMS, for the Court.

This matter comes to us on the appeal of the defendants, Natale Ritacco, Pasquale Ritacco, Frank Scavello, Salvatore Scavello, Louis Scavello, Josepha Ritacco, Domenic Capizzano, and Rose Capizzano (collectively defendants), from a Superior Court judgment in favor of the plaintiffs, Paul F. Nardone and Betty Jo Nardone (collectively plaintiffs). This case came before the Supreme Court for oral argument on October 30, 2007, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not summarily be decided. After hearing the arguments of counsel and examining the record and memoranda filed by the parties, we are of the opinion that this appeal may be decided at this time without further briefing or argument. For the reasons hereinafter set forth, we affirm in part and reverse in part the judgment of the Superior Court.

I Facts and Travel

We are far from the beginning of this seemingly endless and complicated journey. Rather, the matter before this Court is reminiscent of the fictional chancery case of Jarndyce and Jarndyce, as described by Charles Dickens in the novel Bleak House, because this case like that one, "drones on."¹ This case involves a long-running dispute over a deeded right-of-way in the Town of Hopkinton, Rhode Island. The plaintiffs' property is designated as lot No. 78 on tax assessor's plat 10. This parcel borders Lawton Foster Road. The defendants own an adjacent parcel of land, designated as lot No. 77A on tax assessor's plat 10; it is located directly behind plaintiffs' property and has no frontage along Lawton Foster Road. In 1965, plaintiffs' predecessor-in-interest, Ralph C. James, Sr., granted to defendants Natale Ritacco, George Ritacco, Pasquale Ritacco, Francesco Scavello, and their successors, a fifty-foot right-of-way along the northern boundary line of what is now plaintiffs' property. The plaintiffs acquired their property in 1993. This right-of-way over plaintiffs' property, for ingress from and egress to Lawton Foster Road, has been the subject of many years of litigation.

During Memorial Day weekend of 1999, defendants caused trees and vegetation to be cut within the fifty-foot right-of-way. On June 1, 1999, plaintiffs filed a complaint and sought temporary and permanent injunctive relief to prohibit defendants from cutting trees and vegetation and to prevent defendants from trespassing on their land. The motion justice entered an order granting plaintiffs' preliminary injunction on June 22, 1999. Two months later, plaintiffs filed a motion to adjudge defendants in contempt of the June 22, 1999 order; they alleged that defendants violated the order by cutting trees and vegetation outside the right-of-way.

After hearing both parties, the motion justice entered a consent order on September 3, 1999. The consent order identified the right-of-way as "the fifty-foot right of way which commences on the northern boundary of Plaintiffs' real property." Additionally, it reiterated that "[d]efendants may not cut or remove any vegetation, trees, or underbrush, or pave any area outside the fifty-foot [right-of-way]." Subsequently, plaintiffs filed multiple motions to adjudge defendants in contempt on March 2, 2000, June 13, 2001, July 6, 2001, July 24, 2003, and July 20, 2004; they alleged that defendants were continuously violating the June 22, 1999 order.

A key source of contention at trial was the location of the right-of-way and whether defendants were in contempt of any prior court orders. In addition to arguing that the right-of-way was not, in fact, originally located along the northern boundary of plaintiffs' property, defendants also asserted two alternative claims for relief — the existence of an easement by prescription as well as an easement by substitution over plaintiffs' driveway. On October 1, 2004, the trial justice rendered a decision in favor of plaintiffs, clarifying that the right-of-way is located along the northern boundary of plaintiffs' property.² He also ordered defendants to pay $8,147 in attorney's fees to plaintiffs as a sanction for contempt. The defendants timely appealed.

II Analysis

On appeal, defendants argue that the trial justice erred in concluding that the right-of-way is located on the northern boundary of plaintiffs' property. The defendants allege that there was no competent evidence in the record to support this result and that the right-of-way includes plaintiffs' driveway. The defendants further contend that the trial justice erred in failing to address their counterclaims for an easement by prescription and an easement by substitution over plaintiffs' driveway. Finally, they assert that the trial justice erred in awarding counsel fees to plaintiffs when there was no evidence of a willful violation of a court order.

A Standard of Review

We review the findings of fact by a justice sitting without a jury deferentially. Imperial Casualty and Indemnity Co. v. Bellini, 888 A.2d 957, 961 (R.I.2005). "It is well settled that `[t]his Court will not disturb the findings of a trial justice sitting without a jury unless such findings are clearly erroneous or unless the trial justice misconceived or overlooked material evidence or unless the decision fails to do substantial justice between the parties.'" Id. (quoting Macera v. Cerra, 789 A.2d 890, 892-93 (R.I.2002)). "[I]f, on review, the record indicates that competent evidence supports the trial justice's findings, we shall not substitute our view of the evidence for his [or hers] even though a contrary conclusion could have been reached." Id. (quoting Nisenzon v. Sadowski, 689 A.2d 1037, 1042 (R.I.1997)).

When reviewing a civil motion to adjudge in contempt, this Court will afford the trial justice great deference. Direct Action for Rights and Equality v. Gannon, 819 A.2d 651, 661 (R.I.2003). "A complaining party can establish civil contempt on behalf of his opponent when there is clear and convincing evidence that a lawful decree has been violated. * * * Findings of contempt are within the discretion of the trial justice and this Court will only overturn such findings where they are clearly wrong." Id.

B Location of the Right-of-Way

The defendants contend that the trial justice erred in determining that the right-of-way was located along the northern boundary of plaintiffs' property. The relevant deed from Mr. James, which granted the right-of-way to Natale Ritacco, George Ritacco, Pasquale Ritacco, and Francesco Scavello, places the right-of-way "along the northerly boundary line of the grantor's premises." The trial justice reviewed this language and heard expert testimony from both parties concerning the location of the right-of-way. The plaintiffs introduced expert testimony from a registered and licensed engineer and surveyor, who testified that, upon examining plaintiffs' property, the boundaries were clear and the right-of-way was located along the northern boundary of plaintiffs' property. The defendants' expert, also a registered and licensed engineer and surveyor, testified that he could not determine the location of the right-of-way because of an ambiguity in the deed. Yet on cross-examination, defendants' expert stated that he did not actually survey the property but simply looked at the various deeds.

Upon hearing the testimony from both experts, the trial justice accepted that of plaintiffs' expert because he was "[t]he only person who surveyed the land in question." Ultimately, the trial justice found in favor of plaintiffs and concluded that he had no doubt that the right-of-way existed along the northern boundary of plaintiffs' property.

A review of the record plainly supports the trial justice's findings. It was well within the trial justice's discretion to conclude that plaintiffs presented credible evidence of the right-of-way's location along the northern boundary of plaintiffs' property. Indeed, this finding comports with the September 3, 1999 consent order, which places the right-of-way along the northern boundary of plaintiffs' property. The trial justice's finding of the location of the right-of-way, given his credibility determinations and the evidence presented, was soundly within his discretion, and accordingly this Court will affirm his determination.

C Easement by Prescription

"[M]an, like a tree in the cleft of a rock, gradually shapes his roots to his surroundings, and when the roots have grown to a certain size, can't be displaced without cutting at his life."³ The doctrines of adverse possession and prescriptive easement largely reflect this reality. In Rhode Island, "[o]ne who claims an easement by prescription bears the burden of establishing actual, open, notorious, hostile, and continuous use under a claim of right for at least ten years." Stone v. Green Hill Civic Association, Inc., 786 A.2d 387, 389 (R.I.2001) (citing Palisades Sales Corp. v. Walsh, 459 A.2d 933, 936 (R.I.1983)). See also Carnevale v. Dupee, 783 A.2d 404, 409 (R.I.2001). "The determination of whether or not a claimant has satisfied the burden of proving each of these elements by clear and satisfactory evidence involves an exercise of the fact-finding power." Stone, 786 A.2d at 389-90. Indeed, "factual determinations are generally necessary to determine whether claimants have established the elements of a prescriptive easement." Id. at 391. The defendants contend that the trial justice erred by failing to address their claim for an easement by prescription over plaintiffs' driveway.

The defendants allege that they have presented substantial evidence to support their claim for an...