Thomas v. Ross

• Decision Date: 01 June 1984
• Docket Number: No. 81-607-A,81-607-A
• Citation: 477 A.2d 950
• Parties: Antone S. THOMAS et al. v. James ROSS et al. ppeal.
• Court: Rhode Island Supreme Court

Page 950

477 A.2d 950

Antone S. THOMAS et al. v. James ROSS et al.

No. 81-607-Appeal.

Supreme Court of Rhode Island.

June 1, 1984.

William P. Robinson III, John H. Blish, Edwards & Angell, Providence, for plaintiff.

Patrick O'Neill Hayes, Corcoran, Peckham & Hayes, P.C., Newport, for defendant.

OPINION

KELLEHER, Justice.

This is the second chapter in a continuing controversy involving a tract of land in Little Compton, Rhode Island. The plaintiffs, Mary and Antone Thomas (Thomases), ¹ brought suit in 1971 to have the defendants, James and Kathleen Ross (Rosses), remove obstructions to a right-of-way the Thomases claimed to own over the Rosses' property. The easement provided the Thomases with access to a main road and shoreline that were not otherwise accessible from their property.

When we were last visited by these principals in Thomas v. Ross, 119 R.I. 231, 376 A.2d 1368 (1977), we were asked to determine whether the Thomases' deed created the claimed right-of-way in their favor. Id. at 239, 376 A.2d at 1373. Although the trial court had decided the deed created no such right-of-way, we ruled otherwise and remanded the case for further consideration.

At the second trial, which took place in 1981, the parties presented evidence relating only to the Rosses' claim that the Thomases' right-of-way had been extinguished by the Rosses' adverse possession. At the conclusion of the presentation of evidence, the trial justice ruled that the evidence did not prove that the right-of-way had been extinguished, and he subsequently ordered the Rosses to remove all obstructions and encumbrances from the right-of-way.

It is from this decision that the Rosses now appeal. ² They also question the very finality of the judgment, claiming that the trial justice failed to consider several issues that they had raised as affirmative defenses.

In answering this latter claim, we must refer back to the earlier decision. The Rosses raised as affirmative defenses to the Thomases' complaint the equitable doctrines of estoppel and unclean hands. The Rosses also claimed that the easement was unenforceable under the Little Compton subdivision regulations. However, since the trial justice had based his decision on the deed, these issues were not before this court in the first appeal.

As part of the procedural maneuverings of the parties after the remand, the Thomases moved for summary judgment. The Rosses made no cross-motion for summary judgment. However, they did file a memorandum and affidavits in opposition to the Thomases' motion. This opposition memorandum emphasized that an issue of fact existed with respect to one issue--the question of whether the easement was extinguished by the Rosses' adverse possession of it.

The Rosses' memorandum was persuasive, and the motion justice denied the Thomases' motion for summary judgment. He then restored the case to the trial calendar for disposition of all remaining issues.

The case was called for a second trial in June of 1981. As we stated earlier, the sole topic of interest that day was the adverse-possession question. Both the Thomases and the trial justice believed that after ten years of motions, trials, and appeals the case had boiled down to that one issue. Nevertheless, after the trial justice had entered judgment against the Rosses, the Rosses asked him to clarify this judgment, claiming that the equitable and subdivision defenses still needed resolution. However, the trial justice denied this request, stating that the matter should come to an end.

We find the Rosses' argument with respect to the finality of the trial justice's decision somewhat curious, because they argue that issues are still unresolved, yet they can point to no explicit action on their part which would alert the trial justice to their desire to have the other unresolved issues resolved.

Instead, the Rosses must argue from inference if they hope to succeed. They note that this court remanded all issues to the Superior Court. They note that in his denial of the Thomases' motion for summary judgment, the motion justice sent all issues to the trial court for disposition. They also note that their memorandum in opposition to the motion for summary judgment asked for a briefing schedule for the remaining issues.

Yet two crucial facts undermine the Rosses' claim. The first is that, at trial, they agreed that the adverse-possession claim was the "sole issue" that was before the court. Second, and perhaps most important, they never moved for summary judgment on the remaining equitable defenses and thereby never affirmatively placed them before the court.

This failure does not daunt their perseverance or diminish their hopes. They claim that a trial court need not have a summary-judgment motion before it in order to grant summary judgment in favor of the nonmoving party.

This position finds strong support in the federal decisions interpreting Rule 56 of the Federal Rules of Civil Procedure; see, e.g., Morrissey v. Curran, 423 F.2d 393, 399 (2d Cir.1970); 10A Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 2720 at 29 (1983). This court has implied that this course of action is appropriate. In Berberian v. O'Neil, 111 R.I. 354, 302 A.2d 301 (1973), we stated that it was proper for the trial court to enter summary judgment even though no cross- motion had been filed. "The practice of allowing summary judgment to be entered for a nonmoving party finds overwhelming judicial support." Id. at 356 n. 2, 302 A.2d at 302 n. 2.

Although this course is permissible, that does not make the practice mandatory. A trial justice should grant summary judgment against the moving party only if it is clear that no issue of material fact exists and that the nonmoving party is entitled to judgment as a matter of law. Apparently this was not the case here. Since an issue of fact existed on the estoppel, unclean hands, and the subdivision regulations, the Rosses were not entitled to summary judgment as a matter of law.

Trial on an installment-plan basis cannot be countenanced, and actions speak louder than words. The Rosses' action at the June 1981 trial is clear and convincing evidence that they abandoned the estoppel, unclean hands, and subdivision claims. The Rosses' counsel explicitly stated at the trial, in response to the trial justice's inquiry "What issue are you raising?" that they were raising only "[t]he matter of whether or not an easement has been extinguished." At the conclusion of the trial that day, counsel did not suggest that other issues existed, nor were any argued. This activity at the trial clearly indicates that the Rosses had decided to allow their case to stand or fall on the adverse-possession issue. Judicial economy dictates that the finality of the trial justice's decision be upheld and that we not permit appellants to profit by their tactical decision to rest on the adverse-possession question and then suffer a change of mind once the question has been decided against them. This case was first initiated in 1971. The Rosses...