Theroux v. Bay Associates, Inc.

• Decision Date: 13 June 1975
• Docket Number: No. 74-22-A,74-22-A
• Citation: 339 A.2d 266,114 R.I. 746
• Parties: Joseph G. THEROUX et al. v. BAY ASSOCIATES, INC., et al. ppeal.
• Court: Rhode Island Supreme Court

Page 266

339 A.2d 266

114 R.I. 746

Joseph G. THEROUX et al. v. BAY ASSOCIATES, INC., et al.

No. 74-22-Appeal.

Supreme Court of Rhode Island.

June 13, 1975.

[114 R.I. 750] Coffey, McGovern & Novogroski, Charles J. McGovern, Providence, for plaintiffs.

Gordon C. Mulligan, Warwick, Louis A. Petrarca, Jr., West Warwick, for defendants.

OPINION

ROBERTS, Chief Justice.

This complaint for a declaratory judgment was brought by Joseph G. Theroux and Joseph T. Theroux against Bay Associates, Inc., Clovis H. St. Germain, B & S Realty Co., Inc., and Peter Barrett, pursuant to the provisions of G.L.1956 (1969 Reenactment) chapter 30 of title 9. The plaintiffs therein sought a declaratory judgment that a contract for the sale of a certain tract of land entered into with the defendant Bay Associates, Inc., had terminated. The case was heard by a justice of the Superior Court sitting without a jury, who entered a judgment declaring the agreement to have been terminated. From this judgment the defendants have prosecuted an appeal to this court.

It appears that plaintiff Joseph G. Theroux and defendant Bay Associates, Inc., entered into a purchase and sale agreement involving a tract of land located on Tower Hill Road in South Kingstown at a purchase price of $27,500. The agreement contained the following provision: 'Purchase subject to Zoning Change from R 40 to Business,* Buyer to pay all expenses involved and to pay commission of Regent Realty. If zone change denied, deposit to be returned to buyer.' ¹ It is not disputed that plaintiff Joseph G. Theroux and defendant Peter J. Barrett filed a petition requesting the Town Council of the Town of South Kingstown to amend the zoning ordinance in order to make the real estate in question eligible for business uses. On January 24, 1972, following a public hearing by the town council, the petition was denied. Thereafter, Barrett appealed from the decision of the town council denying the petition to amend the zoning ordinance. That case is still pending in the Superior Court for Washington County.

The defendants contend, first, that the granting of the declaratory judgment in this case constituted an abuse of the trial court's judicial discretion. The reason, they argue, is that the issue concerning which declaratory judgment has been sought could have been decided in a pending action, namely, the appeal of defendant Barrett from the town council's decision denying the change in zoning. That action is, of course, pending in the Superior Court.

The obvious purpose of the Uniform Declaratory Judgments Act is to facilitate the termination of controversies. Section 9-30-5 of the Act gives the courts broad power to issue declaratory judgments '* * * where declaratory relief is sought, in which a judgment or decree will terminate the controversy or remove an uncertainty.' In § 9-30-6 of the Act the courts are given a broad discretion to deny declaratory relief where it would not have the effect of terminating a controversy or relieving an uncertainty that gave rise to the proceeding.

In Employers' Fire Ins. Co. v. Beals, 103 R.I. 623, 240 A.2d 397 (1968), we said that where there is another action pending, it is within the sound judicial discretion of the court to grant or withhold declaratory relief. Fundamentally, we there said that if the issue on which the declaratory relief is sought is separable from the issue to be heard and decided in the pending action, declaratory relief should be liberally...