Pucci v. Algiere

• Decision Date: 12 January 1970
• Docket Number: No. 622-A,622-A
• Parties: Frank L. PUCCI et al. v. Angelo ALGIERE. ppeal.
• Court: Rhode Island Supreme Court

Page 1

261 A.2d 1

106 R.I. 411

Frank L. PUCCI et al. v. Angelo ALGIERE.

No. 622-Appeal.

Supreme Court of Rhode Island.

Jan. 12, 1970.

Harold B. Soloveitzik, Matthew L. Lewiss, Westerly, for plaintiffs. George Ajootian, Providence, for Angeline L. Garofolo, mortgagee

Joseph J. Parrilla, Town Solicitor, Westerly, for defendant.

OPINION

PAOLINO, Justice.

The cause before us involves the provisions of chapter 353 of the Ordinances of the Town of Westerly, entitled 'An Ordinance Relating to Minimum Standards for Non-residential Premises,' as authorized by P.L.1968, chap. 67, sec. 10, and consists of two separate appeals, one by Frank L. Pucci, the owner of the real estate which is the subject of this action, and the other by Angeline L. Garofolo, who is the holder of a note secured by a mortgage on said real estate. The defendant Angelo Algiere is the building official of the town of Westerly.

Mr. Pucci's appeal is from an order entered on October 16, 1968, directing him to demolish the building on his land and enjoining him from doing further work on the building. Mrs. Garofolo's appeal is from an order entered on December 9, 1968, denying her motion to dismiss the proceedings as to her. We shall hereinafter sometimes refer to Pucci as the plaintiff, to Mrs. Garofolo as the mortgagee, and to Algiere, the building official, as the defendant. For convenience we shall treat the appeals separately.

The plaintiff commenced this action on September 6, 1968, by filing a complaint seeking to enjoin defendant from demolishing the building on plaintiff's land pursuant to chap. 353. The complaint contains allegations that the plaintiff owns a parcel of land with a building of substantial value thereon at 71 Pierce Street; that on June 10, 1968, defendant sent a notice to plaintiff, a copy of which is attached to the complaint, stating that an examination made of the building on May 29, 1968, and June 3, 1968, showed a non-compliance with the provisions of chap. 353, as detailed in the notice, that the building constituted a public nuisance, that defendant intended to remove or demolish the structure in accordance with the ordinance, that plaintiff was requested to appear at a hearing before defendant on June 18, 1968, and that copies of this notice were sent to the mortgagee and to Carmine L. and Alder Pendola, who had purchased this property from the mortgagee and had subsequently sold it to plaintiff; that, as a result of that hearing, defendant, on June 24, 1968, ordered plaintiff to remove or demolish the building, but gave plaintiff 60 days to repair or improve the building to meet all the standards set forth in chap. 353, copies of this order being sent to the mortgagee and to the prior owners of the property; that plaintiff appealed the order to the Board of Review as provided by sec. 5 of the ordinance; and that on July 15, 1968, the board affirmed the order.

The complaint further alleges that since June 10, 1968, plaintiff had been making repairs and improvements; that all repairs requested by defendant had been fully completed, and that in addition, substantial improvements had been made to the premises; that the building did not constitute a hazard to the health, safety or welfare of the occupants of any neighboring building or to the general public, nor did it constitute either a public or a private nuisance; that, on the contrary, the premises constituted a valuable property right to the plaintiff; and that on September 5, 1968, defendant notified plaintiff's counsel stating that, since plaintiff had failed to appeal the board's decision to the Supreme Court, defendant would, on September 7, 1968, order the demolition and removal of the building in accordance with the enabling act and ordinance. After receiving the above notice, plaintiff filed this complaint seeking injunctive relief on the grounds set forth therein.

After the Superior Court denied defendant's motion to dismiss, defendant filed his answer and, in addition thereto, a counterclaim stating that plaintiff had not complied with his June 24, 1968, order and praying that (a) plaintiff be ordered to demolish the building forthwith or (b) that he be enjoined from interfering in any manner with defendant in the removal and demolition thereof and that plaintiff be ordered to pay any costs of the same.

The plaintiff filed a reply to the counterclaim and thereafter the matter was heard on the complaint and counterclaim before a justice of the Superior Court. The evidence before the trial justice consisted of certain exhibits, photos, the testimony of defendant and one other witness in support of the counterclaim, and the testimony of plaintiff and his witness in opposition to the counterclaim. The evidence relating to the work which had been done on the building by plaintiff, to the work which had remained to be done, and to whether the condition of the structure had been such as to violate the provisions of chap. 353, is conflicting. At the conclusion of the hearing the trial justice rendered a decision containing specific findings adverse to plaintiff. On October 14, 1968, on the basis of such findings, a judgment was entered directing plaintiff to demolish the building by November 16, 1968, and enjoining him from doing further work on the building. An order was entered on October 16, 1968, at the direction of the trial justice which incorporates his findings and orders. (See appendix I.)

A Defendant's Motion to Dismiss

Initially we shall consider defendant's motion to dismiss the appeals by plaintiff and the mortgagee. The motion is on two grounds. The first is that the premises which were the subject matter of this action were razed to the ground and the cause has therefore become moot. It appears from the record that defendant, pursuant to the orders entered in the Superior Court on October 16, 1968, and December 9, 1968, caused the building to be demolished after this court had denied motions by plaintiff and the mortgagee to stay execution of the Superior Court orders. The defendant argues that, since the subject matter of the action no longer exists, that which plaintiff and mortgagee sought to prevent has already occurred, and the case is therefore moot. He cites from 5 C.J.S. Appeal and Error § 1362, and the following cases to support his position: Cochrane v. Langlois, R.I., 247 A.2d 91, cert. denied, 394 U.S. 920, 89 S.Ct. 1196, 22 L.Ed.2d 454; Lauder v. Zoning Board of Review, 100 R.I. 641, 218 A.2d 476; Kimball v. Pelosi, 96 R.I. 429, 192 A.2d 267; and Johnson Wholesale Perfume Co. v. Blumen, 63 R.I. 485, 9 A.2d 857. The cases cited by defendant are not in point and, therefore, we see no reason for discussing them. The destruction of the building by defendant did not moot all the issues raised by the appeals. Determination of important rights of the parties depends upon the correctness of the decision of the trial justice and the orders entered pursuant thereto. If we affirm those orders, plaintiff will be subject to the payment of costs and expenses of the demolition. If we reverse the decision and hold that the building was not a nuisance, or if we find that the alleged hazards and violations could have been abated without the necessity of destroying the whole building, then plaintiff may have a cause of action against defendant for damages resulting from the unlawful destruction of his property. See 5 C.J.S. Appeal and Error § 1354(1), page 411 et seq., for a discussion of this problem. See generally Lewis v. Town of North Kingstown, 16 R.I. 15, 11 A. 173, and Beacon Restaurant, Inc. v. Adamo, 103 R.I. 698, 241 A.2d 291.

The second ground of defendant's motion is that the remedy of plaintiff and the mortgagee should have been by certiorari to this court pursuant to the provisions of P.L.1968, chap. 67, sec. 8. ¹ This ground is clearly without merit and requires little discussion. Section 8 is not applicable here. The plaintiff and the mortgagee are not appealing from an order of the building official or of the Board of Review. They are appealing from orders entered by the Superior Court on defendant's counterclaim wherein he sought an order requiring plaintiff to demolish the building forthwith or an order that plaintiff be enjoined from interfering with defendant in the demolition of the building and that plaintiff be ordered to pay the costs of the demolition. The Superior Court had jurisdiction to hear the counterclaim which was filed by defendant and from which appeals have been properly taken to this court by plaintiff and mortgagee. See Palombo v. Housing Board of Review, 92 R.I. 421, 169 A.2d 613.

The defendant has added another ground in his brief which was not included in his original motion to dismiss. He argues that plaintiff's appeal should be dismissed because of plaintiff's attritude and conduct. This argument begs the question, for we cannot know what plaintiff's conduct and attitude were until we pass on the merits of his appeal.

For the reasons stated, we deny defendant's motion to dismiss the appeals.

B The Appeal of Frank L. Pucci

We address ourselves now to plaintiff's appeal, which he has briefed and argued under seven main points. We shall treat the appeal in like manner.

Under Point One of his brief plaintiff poses the following question:

'Does the mere recital of and reference to administrative proceedings under chapter 353 in the counter-claim state a sufficient cause of action on which a court can order demolition of Pucci's building, and to declare the premises a common law nuisance?'

He indicates no ruling of the trial justice to which he made objection nor any portion of the transcript where this question was raised in the court below. Although we have doubts as to whether this question is properly before us for review, see State v. Quattrocchi, 103 R.I. 115, 235 A.2d 99; Villa v. Hedge, 96 R.I. 52, 188 A.2d 904; Cottrell v. Lally, 94 R.I. 485, 182 A.2d 302, we shall assume for the...