Wyss v. Wyss

Decision Date26 June 2014
Docket NumberC. A. WC-2013-0024
CourtRhode Island Superior Court
Washington County Superior Court

For Plaintiff: Neil P. Philbin, Esq. Roderick A.J. Cavanagh, Esq.

For Defendant: Patrick. L. McKinney, Esq.



This matter arises out of a debt dating back to 1992 as between brothers and is presently before this Court on cross motions for summary judgment filed by Defendant William Wyss (Defendant or William[1]) and by Plaintiffs Robert Wyss (Robert) and Christina Wyss (Christina, and collectively Plaintiffs). The parties originally stipulated that there are no disputed material facts in this case and that judgment should be issued as a matter of law. This Court entertained oral arguments on April 15, 2013.

On the eve of issuing its written Decision, this Court received Defendant's Motion for Stay of Court Ruling and for Further Consideration, in which the existence of a 1996 Mortgage Deed was disclosed that, Defendant contends, further supports his Motion for Summary Judgment. The parties engaged in discovery and further briefing to address what effect, if any, the existence of the 1996 Mortgage Deed has on the pending cross motions for summary judgment. The parties still maintain that there are no genuine issues of material fact and that the case is ripe for summary judgment. After further hearing before this Court, this Court now issues its Decision.

I Facts and Travel

William loaned $60, 000 to his brother Robert and Robert's wife Christina, on January 14, 1992. In exchange for the loan, Plaintiffs executed a Demand Promissory Note (the Note), whereby they promised to repay the loan before April 15, 1992, with interest at a rate of 12% per annum. The Note was secured by a Mortgage Deed against property at 116 Canterbury Road in Wakefield, Rhode Island, which is Lot 59 of the Town Clerk's Plat Book 16 (the Wakefield Property). That Mortgage Deed was recorded in the South Kingstown Land Evidence Records on January 16, 1992 (the 1992 Mortgage Deed). The debt has never been satisfied in whole or in part, and William has never forgiven, discharged or released any portion of the debt and obligation owed by Plaintiffs.

At the time the Note and the 1992 Mortgage Deed were executed, Plaintiffs were married; however, Christina filed for a divorce on January 3, 2002. By Quitclaim Deed dated January 7, 2002, Robert conveyed all his interest in the Wakefield Property to Christina. The Family Court granted Christina's complaint for divorce and a Final Judgment was entered on or about April 23, 2002, which provides in part that Robert "shall be solely responsible for paying liens on the marital domicile to Williams Wyss" and others.

In 2011, William filed suit in this Court against Robert and Christina to recover the amount due under the terms of the Note. See William Wyss v. Robert Wyss, et al., C.A. No. WC-2011-0716. However, that case was dismissed by this Court on August 27, 2012, as being barred by the relevant ten-year statute of limitations for recovering on a promissory note. See G.L. 1956 § 9-1-13. Plaintiffs subsequently commenced the instant action on January 15, 2013, seeking declaratory and injunctive relief that would prevent Defendant from foreclosing on the Wakefield Property. Specifically, Plaintiffs seek (1) a declaration that William is time-barred from foreclosing on the Wakefield Property; (2) a preliminary and permanent injunction enjoining William from foreclosing on the Wakefield Property; (3) a declaration that the Note and 1992 Mortgage Deed on the Wakefield Property is canceled and discharged; and (4) that the Note and 1992 Mortgage Deed be removed as a cloud on the title to the Wakefield Property. Compl. ¶¶ 16-19.

Defendant filed a Motion for Summary Judgment on March 7, 2013, along with a supporting memorandum and affidavit. In those documents, Defendant argues that the statute of limitations set forth in § 9-1-17 does not apply as a bar to potential foreclosure on the Wakefield Property, but rather, the statute of repose found at G.L. 1956 § 34-26-7 controls the outcome of this declaratory judgment action. In objecting to Defendant's motion and in support of their cross motions for summary judgment, Plaintiffs contend[2]that Defendant is barred from foreclosing on the Wakefield Property by the twenty-year statute of limitations found at § 9-1-17.

In his July 12, 2013 Motion for Stay of Court Ruling and for Further Consideration, William argued that there is additional evidence that should be considered by this Court prior to issuing its ruling on the parties' cross motions for summary judgment. Specifically, Defendant presented this Court with a Mortgage Deed from Plaintiffs to Defendant, which is dated April 15, 1996, and recorded on February 27, 1997 (the 1996 Mortgage Deed). Def.'s Mem. in Support of Mot. to Stay Ruling, at Ex. A. The 1996 Mortgage Deed purports to secure the payment of $90, 600, due on April 15, 1997, with one year interest of 10%. Id. It also provides that the aforementioned payment due is "as provided in a certain negotiable promissory note and loan modification agreement of date hereof, [3] providing additional security for the outstanding balance due, and interest thereon." Id. The 1996 Mortgage Deed does not expressly reference the prior 1992 Mortgage Deed on the Wakefield Property. See id. Instead, the 1996 Mortgage Deed secures property delineated as Lots 28 K and 28 L of a plat entitled "Division of Land owned by Jo Wilson Barnes, Pettasquamscutt Terrace, Narragansett, RI, " which plat is recorded in the Town of Narragansett's Plat Book 7 at page 60. Id. Clearly, the real property secured by the 1996 Mortgage Deed is wholly separate from the Wakefield Property secured by the 1992 Mortgage Deed.

According to Defendant, "[b]y this 1996 Mortgage Deed, [] Plaintiffs not only recognize the continuing validity of the 1992 Mortgage[] but act so as to extend its validity." Def.'s Mem. in Support of Mot. to Stay Ruling, at 2. Robert has responded that the 1996 Mortgage Deed is irrelevant to the instant proceedings and does not serve as a novation of the 1992 debt; Christina agreed and further argued that the submission of additional evidence approximately three months after the hearing on this matter violates this Court's Administrative Order regarding dispositive motions. Additionally, Christina filed a Motion to Amend Complaint to include a separate count seeking declaratory and injunctive relief as it relates to the 1996 Mortgage Deed. That additional count seeks (1) a declaration that William has no right to initiate a power-of-sale foreclosure on the Wakefield Property based upon the 1996 Mortgage Deed; (2) a preliminary and permanent injunction enjoining William from foreclosing on the Wakefield Property; (3) a declaration that the 1992 Mortgage Deed on the Wakefield Property is canceled and discharged; and (4) that the Note and 1992 Mortgage Deed be removed as a cloud on the title to the Wakefield Property. Mot. to Amend Compl., at Attachment ¶¶ 25-29. No objection was filed and, therefore, pursuant to Rule 7 of the Superior Court Rules of Civil Procedure, Christina's Motion to Amend Complaint was deemed granted.[4]

II Standard of Review

This Court is given "power to declare rights, status, and other legal relations whether or not further relief is or could be claimed" by the Uniform Declaratory Judgments Act, codified at §§ 9-30-1, et seq. However, when presented with a complaint seeking declaratory relief, "[t]he decision to grant or to deny declaratory relief under the Uniform Declaratory Judgments Act is purely discretionary." Sullivan v. Chafee, 703 A.2d 748, 751 (R.I. 1997) (quoting Woonsocket Teachers' Guild Local Union 951, AFT v. Woonsocket Sch. Comm., 694 A.2d 727, 729 (R.I. 1997) (quotation omitted)). If declaratory relief is granted, "[t]he declaration may be either affirmative or negative in form and effect; and such declarations shall have the force and effect of a final judgment or decree." Sec. 9-30-1.

When a hearing justice is ruling on a motion for summary judgment, whether the underlying complaint seeks declaratory relief or not, the preliminary question before the court is whether there is a genuine issue as to any material fact which must be resolved. R.I. Hosp. Trust Nat'l Bank v. Boiteau, 119 R.I. 64, 376 A.2d 323 (1977); O'Connor v. McKanna, 116 R.I. 627, 359 A.2d 350 (1976). If an examination of the evidence— viewed in the light most favorable to the opposing party—reveals no such issue, then the suit is ripe for summary judgment. Id. at 66, 376 A.2d at 324. If a case is ripe for summary judgment, then this Court must determine whether the moving party is entitled to judgment as a matter of law. See Lucier v. Impact Recreation, Ltd., 864 A.2d 635, 638 (R.I. 2005) (citation omitted).

Here, Plaintiffs maintain that William's right to foreclose the 1992 Mortgage Deed is barred by the lapse of time. The burden of establishing that time bar rests with Plaintiffs. Walsh v. Morgan, 60 R.I. 349, 198 A. 555, 559 (1938)

III Analysis

It is undisputed that this Court previously ruled that the debt owed on the Note was barred by the ten-year statute of limitations applying to contract actions. See § 9-1-13. However, under Rhode Island law, this prior ruling precluding enforcement of the Note does not, in and of itself, bar Defendant's ability to foreclose on the Wakefield Property secured by the 1992 Mortgage Deed. See Walsh, 60 R.I. at 349, 198 A. at 559 (recognizing the principle that "the mortgagee may foreclosure his mortgage after the debt is barred"); see also Ballou v. Taylor, 14 R.I. 277, 277 (1883) ("The remedy on a mortgage is not lost because a personal action...

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