Renewable Res., Inc. v. Town of Westerly

• Decision Date: 04 March 2015
• Docket Number: No. 2013–101–Appeal.,2013–101–Appeal.
• Citation: 110 A.3d 1166
• Parties: RENEWABLE RESOURCES, INC. v. TOWN OF WESTERLY.
• Court: Rhode Island Supreme Court

110 A.3d 1166

RENEWABLE RESOURCES, INC.

v.TOWN OF WESTERLY.

No. 2013–101–Appeal.

Supreme Court of Rhode Island.

March 4, 2015.

Kelly M. Fracassa, Esq., Westerly, for Plaintiff.

Lauren E. Jones, Esq., Providence, for Defendant.

Present: SUTTELL, C.J., FLAHERTY, ROBINSON, and INDEGLIA, JJ.

OPINION

Justice INDEGLIA, for the Court.

The plaintiff, Renewable Resources, Inc. (Renewable Resources or plaintiff), appeals from a Superior Court order vacating a preliminary injunction halting demolition of the Potter Hill Mill (the mill), as well as a subsequent judgment dismissing the remaining counts of the plaintiff's amended complaint against the defendant the Town of Westerly (the town or defendant). On appeal, the plaintiff argues that the hearing justice abused his discretion in failing to find a change of conditions warranting the mill's demolition. After a thorough review of the record and consideration of the parties' written submissions and oral arguments, we affirm the order and judgment of the Superior Court.

IFacts and Travel

In the 1950s, the Potter Hill Mill, a vestige of this country's Industrial Revolution located on the Pawcatuck River in Westerly, ceased its operations. In 1980, with the condition of the mill's buildings worsening, the town sought to have it demolished, and a demolition order was eventually issued. The demolition order was upheld by the Rhode Island Building Code Standards Committee; and, in 1984, a Rhode Island District Court judge affirmed the order to demolish the mill for safety reasons. Demolition, however, did not take place. In 1992, plaintiff purchased the mill for $50,000 “as is.” In 2006, plaintiff and the town entered into a memorandum of agreement (MOA), in which plaintiff recognized the validity of the condemnation order and pledged to meet a series of conditions in order to stave off demolition. The MOA required that plaintiff fence off the property, clean up debris, and expeditiously pursue its development plan. Further, the MOA explicitly granted the town the power to determine whether plaintiff was in breach of the MOA's conditions.

On August 21, 2009, aware of the mill's continuing deterioration and plaintiff's failure to expeditiously pursue its development plan, the town placed a newspaper advertisement requesting proposals for the demolition of the mill. On September 11, 2009, plaintiff responded by filing the instant action in the Washington County Superior Court seeking a temporary restraining order, a preliminary injunction, and a permanent injunction against the town barring demolition of the mill's buildings.¹ In its answer, the town alleged that plaintiff's failure to comply with the MOA's requirement of due diligence was sufficient to grant “the Town the right to condemn and * * * demolish the building.” The town also filed an objection to the requested temporary restraining order, as well as a motion for the court to conduct a view of the mill. A Superior Court justice subsequently granted plaintiff's motion for a temporary restraining order, and the parties continued the preliminary injunction hearing for more than one year while the temporary restraining order remained in effect.

On April 26, 2011, a second Superior Court justice dismissed count 3 of the amended complaint, which requested “a mandatory injunction ordering [the town] to forthwith conform the zoning classification of Plaintiff's property * * * to its comprehensive plan[.]” The hearing justice then entered an order effectuating an agreement between plaintiff and the town. The order provided plaintiff with a timetable for both submission of development plans and actual repair work for the mill, and it also provided that a preliminary injunction against demolition of the mill would remain in effect until further notice.²

On June 25, 2012, after two hearings on the matter before a third Superior Court justice, an order was entered allowing quarterly inspections by the town's building official, the issuance of permits for demolition and reconstruction of the mill, and a viewing of the mill property by the court. The order further scheduled a review of the case for November 16, 2012. On October 16, 2012, the hearing justice viewed the property along with the parties. A short time later, at the end of October 2012, Hurricane Sandy³ struck New England, wreaking havoc on what was left of the mill. Subsequently, on November 16, 2012, the town filed an emergency motion for relief from the preliminary injunction pursuant to Rule 60(b)(5) of the Superior Court Rules of Civil Procedure,⁴ in which it described the advanced rate of deterioration and collapse of the buildings since the summer and requested that it be allowed to demolish the buildings so that it might prevent immediate harm to children.

At a December 11, 2012 hearing, David Murphy, the town's building official, testified that the buildings were beyond repair and unsafe; he added that they posed a threat to persons on the property and in the adjacent waterway. Acknowledging the problems posed by trespassers and children on the property, Mr. Murphy concluded that the buildings should be demolished.⁵ At that same hearing, the town planner, Marilyn Shellman, testified that she had viewed the mill twice in the past year, and that in her second visit “[t]he integrity of the buildings seem[ed] to be worse than [on her] first viewing.” Specifically, she noted that parts of the roof as well as the sidewalls had collapsed since her first viewing. The court also heard testimony from Bonnie Bennett and Allison Goodsell, longtime neighbors of the mill. Ms. Bennett testified to taking pictures of two young boys on top of the mill and, using pictures she had taken in the wake of Hurricane Sandy, she testified that the storm brought about “a lot of further deterioration” to the mill. Ms. Goodsell testified that she had seen many trespassers over the years, as well as that “kids just go in there.”

On December 18, 2012,⁶ an order was entered by the hearing justice “grant [ing] [the town] relief from the current restraining order as it relates to enforcement procedures and * * * permit[ing] [the town] to issue a demolition order to the owner of the subject property through its Building Official [.]” On January 22, 2013, he issued a written decision finding that plaintiff had breached the MOA and, accordingly, entered an order on February 6, 2013, vacating the preliminary injunction.⁷

On February 18, 2013, plaintiff filed a notice of appeal, and, on February 19, 2013, plaintiff filed a motion for the Superior Court to stay the order pending the outcome of its appeal to this Court. On March 28, 2013, the town filed an objection to the motion for stay, as well as a motion to dismiss the appeal. On April 29, 2013, the hearing justice denied plaintiff's motion for stay, but required the town to give notice at least ten days prior to commencing demolition of the mill. On that same day, plaintiff voluntarily dismissed count 4 of its amended complaint with prejudice, and the hearing justice entered a judgment denying and dismissing counts 1 and 2 of plaintiff's amended complaint. On April 30, 2013, plaintiff amended its notice of appeal to include the newly entered judgment.

IIStandard of Review

We note at the outset that the town's emergency motion for relief from the preliminary injunction was mistakenly brought pursuant to Rule 60(b)(5). Rule 60(b)(5) “is applicable only in instances where relief is sought from a final judgment, order, or proceeding.” Murphy v. Bocchio, 114 R.I. 679, 682, 338 A.2d 519, 522 (1975). Because a preliminary injunction is merely an interlocutory order, as opposed to a final judgment, Rule 60(b)(5) was erroneously invoked. See Menard v. Woonsocket Teachers' Guild–AFT 951, 117 R.I. 121, 128, 363 A.2d 1349, 1353 (1976) (“It is axiomatic that [a] * * * preliminary injunction is not intended as a final determination of the merits of a controversy, but that it is intended only to continue, approximately, the status quo until the merits of the cause can be formally adjudicated.” citing Studley Land Co. v. Myers, 81 R.I. 426, 430–31, 103 A.2d 924, 926 (1954) ).

As we previously recognized, however, “a trial justice still retains the inherent power to modify any interlocutory judgment or order prior to final judgment.” Murphy, 114 R.I. at 682, 338 A.2d at 522 (citing 11 Wright & Miller, Federal Practice & Procedure § 2852 at 145 (1973) ). It is clear, then, that the hearing justice was justified in entertaining the town's motion for relief despite the fact that it was brought pursuant to Rule 60(b)(5). See Greene v. Union Mutual Life Insurance Company of America, 764 F.2d 19, 22 (1st Cir.1985) (acknowledging “the inherent power of [the trial court] to afford such relief from interlocutory judgments * * * as justice requires,” quoting Dow Chemical, USA v. Consumer Product Safety Commission, 464 F.Supp. 904, 906 (W.D.La.1979) ). See also Advisory Committee Notes to Rule 60(b) of the Federal Rules of Civil Procedure (1946 Amendment) (“[I]nterlocutory judgments are not brought within the restrictions of the rule, but rather they are left subject to the complete power of the court rendering them to afford such relief * * * as justice requires.”).

“It is well settled that ‘[a] motion to vacate a judgment is left to the sound discretion of the trial justice * * *’ ”; Berman v. Sitrin, 101 A.3d 1251, 1260 (R.I.2014) (quoting Malinou v. Seattle Savings Bank, 970 A.2d 6, 10 (R.I.2009) ); as is the grant or denial of a preliminary injunction. Town of Coventry v. Baird Properties, LLC, 13 A.3d 614, 620 (R.I.2011) ( “[T]he decision to grant or deny a preliminary injunction ‘rests within the sound discretion of the hearing justice * * *.’ ” quoting Iggy's Doughboys, Inc. v. Giroux, 729 A.2d 701, 705 (R.I.1999) ). Such a ruling “will not be disturbed on appeal absent a showing of abuse of discretion or error of law.” Iddings v. McBurney, 657 A.2d 550, 553 (R.I.1995) (citing...