Salvadore v. Major Elec. & Supply, Inc.

Decision Date09 November 1983
Docket NumberNo. 80-487-A,80-487-A
Citation469 A.2d 353
CourtRhode Island Supreme Court
PartiesGuido R. SALVADORE v. MAJOR ELECTRIC & SUPPLY, INC. et al. ppeal.

William T. Murphy and Albert K. Antonio, Murphy, Mullen & Jarret, Stephen P. Nugent, Providence, Maurice W. Hendel, Pawtucket, for plaintiff.

John C. Peterson and Peter S. Haydon, Higgins, Cavanagh & Cooney, Providence, for defendants.

Before BEVILACQUA, C.J., and KELLEHER, WEISBERGER, MURRAY and SHEA, JJ.

OPINION

SHEA, Justice.

This is an appeal from the denial of a motion to vacate judgments entered in Superior Court. The judgments were entered in response to motions filed under Rule 12(b)(6) of the Superior Court Rules of Civil Procedure. During the consideration of these motions, they were converted into motions for summary judgment. We reverse.

The plaintiff is Guido R. Salvadore. The defendants are Major Electric & Supply, Inc.; Contractor's Supply, Inc.; Harry Leven; Manuel E. Azevedo; J. Joseph Nugent; and J. Joseph Nugent, Jr.

On June 13, 1979, plaintiff brought an action against defendants, alleging malicious prosecution and civil conspiracy. Salvadore's allegations stemmed from the filing of four civil suits against him, three of which had terminated in his favor. The remaining action was still pending at the time this suit was filed. He alleged that as a result of these four fraud actions, he was indicted by a federal grand jury.

On September 19, 1979, plaintiff served defendant J. Joseph Nugent, Jr., with a notice of deposition and later a subpoena duces tecum. The defendants moved for a protective order, to which motion plaintiff objected. On October 5, 1979, defendants Major Electric and Leven moved to dismiss on several grounds, one being that the complaint failed to state a claim upon which relief could be granted. The plaintiff filed an objection to the motions to dismiss and moved for a continuance.

The motions were heard by the trial justice on October 10, 1979. He entered an order denying, without prejudice, defendants' motion for a protective order. He continued nisi the motion to dismiss until a date subsequent to the deposition of J. Joseph Nugent, Jr.

The plaintiff was then permitted to amend his complaint by adding as an element of special damages the fact that criminal indictments had been returned against him. Also he added allegations that defendants Nugent "acted in concert" with their clients in bringing the "wholly baseless" civil actions against Salvadore. After amending the complaint, plaintiff filed a new notice to take defendant Nugent, Jr.'s deposition. The deposition began on June 5, 1980, but was continued to July 16, 1980, because of Nugent, Jr.'s refusal to answer questions or to allow inspection of documents.

On June 25, 1980, defendants Contractor's Supply, Azevedo, Nugent, and Nugent, Jr., moved to dismiss for reasons identical to those stated in Major Electric and Leven's previous motion, which had already been continued nisi by the trial justice pending completion of the deposition. The plaintiff objected on grounds that the new motion contravened the trial justice's order of October 23, 1979. He advised the court that upon receipt of the transcript of the interrupted deposition, appropriate motions to compel more responsive answers would be filed.

A hearing on the second Rule 12(b)(6) motion to dismiss was held before a second trial justice on July 9, 1980. After counsel for both sides had been heard, the court asked, "Was the original litigation settled?" Then the following colloquy took place:

"THE COURT: If you prove to the court that the litigations were settled, I will grant the motion to dismiss.

"MR. NUGENT: By affidavit or * * *

"THE COURT: I will just take judicial notice of the file, that's all."

The next day, in chambers, without notice to plaintiff or his counsel, an affidavit of Nugent, Jr.'s was submitted to the second trial justice. In it he asserted that as attorney for plaintiffs Contractor's Supply, Inc., and Azevedo in Superior Court C.A. No. 72-1132 and for plaintiff Azevedo in U.S. District Court C.A. No. 5108, he could state that both cases terminated in settlements prior to trial. Either Nugent, Jr., or his attorney then elaborated on the circumstances surrounding the settlements. The court then entered an order granting the motion to dismiss, and a copy was forwarded along with a cover letter to plaintiff's counsel. Salvadore promptly moved to have the judgments vacated and filed an affidavit in support of his motion. In that affidavit, Salvadore alleged that three of the actions brought against him had, in fact, been terminated in his favor, that he had not "settled" the cases, and that he had not contributed funds toward settlement of those cases. He conceded that the fourth case, Major Electric & Supply, Inc. v. Salvadore, Superior Court C.A. No. 76-3850, was still pending.

On July 16, 1980, defendants Major Electric and Leven filed a new motion to dismiss identical to the one that had been ordered continued nisi pending completion of the deposition. They added, as an additional ground, the dismissal of the action against the other defendants on July 10, 1980. At a hearing on July 23, 1980, Salvadore argued that the order of July 10, 1980, granting dismissal was premature, that it was contrary to the prior order of the first trial justice, and that there were questions of fact for the jury. The court ruled, however, "that the motion for summary judgment is granted in this matter." (Emphasis added.) The justice then ordered the dismissal of the action against defendants Major Electric and Leven because "there is no justification to bring the suits * * *."

An order was entered granting Major Electric and Leven's motion to dismiss, denying plaintiff's motion to vacate the judgment entered, and ordering "that the plaintiff take nothing" and that "the action be dismissed on the merits with prejudice." The plaintiff appeals.

The plaintiff argues that the second trial justice erred in considering and granting defendants' motions because the law of the case had been established by the first trial justice's prior order. This court long ago adopted the "law of the case" doctrine. Payne v. Superior Court, 78 R.I. 177, 80 A.2d 159, reh'g denied, 78 R.I. 188, 82 A.2d 167 (1951). That doctrine states that ordinarily after a judge has decided an interlocutory matter in a pending suit, a second judge, confronted at a later stage of the suit with the same question in the identical manner, should refrain from disturbing the first ruling. State v. Infantolino, 116 R.I. 303, 310, 355 A.2d 722, 726 (1976); Rhode Island Ophthalmological Society v. Cannon, 113 R.I. 16, 20, 317 A.2d 124, 126-27 (1974); Goldstein v. Rhode Island Hospital Trust National Bank, 110 R.I. 580, 588, 296 A.2d 112, 116 (1972); Columbus Ornamental Iron Works, Inc. v. Martin, 103 R.I. 620, 622, 240 A.2d 405, 406 (1968); Payne v. Superior Court, 78 R.I. at 184, 80 A.2d at 163.

This doctrine does not have the finality of the doctrine of res judicata. It is more in the nature of a rule of policy and convenience. North American Planning Corp. v. Guido, 110 R.I. 22, 24, 289 A.2d 423, 424 (1972); Payne v. Superior Court, 78 R.I. at 184, 80 A.2d at 163. "Nevertheless it is one that generally ought to be adhered to for the principal reason that it is designed to promote the stability of decisions of judges of the same court and to avoid unseemly contests and differences that otherwise might arise among them to the detriment of public confidence in the judicial function." Id. at 184-85, 80 A.2d at 163.

We held in Columbus Ornamental Iron Works, Inc. v. Martin, 103 R.I. at 622, 240 A.2d at 406, that the "law of the case" doctrine is violated when a justice of the Superior Court grants a defendant's motion for summary judgment at a pretrial conference where the same motion had previously been denied by another justice of the same court. We reached the same conclusion in Goldstein v. Rhode Island Hospital Trust National Bank, 110 R.I. at 587-88, 296 A.2d at 116, where the second trial justice granted a defendant's Rule 12(b)(6) motion even though the count before him was identical to the one considered earlier and on which a Rule 12(b)(6) motion had been denied.

In the present case, the first trial justice entered an order that

"the motion to dismiss is hereby continued nisi and shall be reassigned to a date certain subsequent to the deposition of Joseph Nugent, Jr."

Nevertheless, four of the defendants later filed an identical Rule 12(b)(6) motion that was considered and granted by the second justice. This filing was improper, as was the granting of these identical motions. The earlier order deferring action on the motion should have been complied with. The "law of the case" principle barred the granting of the later identical motions. Although there is an exception that allows the second motion when the defendant introduces material that significantly extends the record, this is not such a case. State v. Infantolino, 116 R.I. at 311, 355 A.2d at 726.

Furthermore, when the second trial justice considered the affidavit of Nugent, Jr., and the description of the circumstances of the settlements, he converted the Rule 12(b)(6) motion to motions for summary judgment under Rule 56. Ewing v. Frank, 103 R.I. 96, 234 A.2d 840 (1967). He also considered the files of Superior Court C.A. No. 72-1131 and No. 72-1132, which were matters outside the record of the case...

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