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Rose Nulman Park Found. v. Four Twenty Corp.

Supreme Court of Rhode Island

June 13, 2014

Rose Nulman Park Foundation, by its Trustees, Carol B. Nulman and Joel S. Nulman
v.
Four Twenty Corp., et al

Washington County Superior Court. (WC 11-154). Associate Justice Brian P. Stern.

For Plaintiff: Mark W. Freel, Esq.

For Defendants: James E. Kelleher, Esq.

Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

OPINION

Page 26

Indeglia, Justice.

On land owned by the plaintiff, Rose Nulman Park Foundation (Foundation) and described as " a diamond on the necklace that is Rhode Island's beautiful coastline," [1] the defendants, Robert C. Lamoureux and Four Twenty Corporation (collectively, defendants), erroneously constructed a $1.8 million home. This case is before us on the defendants' appeal from a judgment of the Superior Court granting a mandatory injunction ordering them to remove the home. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.

I

Facts and Travel

The underlying facts in this matter are essentially undisputed. The plaintiff, Rose Nulman Park Foundation, which was established in 2006, owns real property located at 1460 Ocean Road in Narragansett, Rhode Island (the Nulman property).[2] The Foundation was established for the express purpose of " preserv[ing] and maintain[ing] * * * [the Nulman property] for use as a park which is open to the public free of charge for recreation and contemplation, under the name 'Rose Nulman Park' * * *" (the Park). A 2008 settlement agreement among some members of the Nulman family, including Carol B. Nulman and Joel S. Nulman, the current Trustees of the Foundation, further stated:

" In the event that, at any time after the date of this Agreement, the Trustees permit the Park to be used in any manner other than [as a park open to the public] then those of the Nulmans who are then serving as trustees of the Rose Nulman Park Foundation * * *, jointly and severally, agree to pay the sum of One Million Five Hundred Thousand Dollars ($1,500,000.00) to New York Presbyterian Hospital * * * provided, however, that no such payment will be required if a court determines that the

Page 27

Park can be put to uses other than the Designated Use under the doctrine of cy pres or otherwise * * *."

Sometime in 1984, defendant Robert C. Lamoureux, who is the president and sole owner of defendant Four Twenty Corporation (Four Twenty), acquired a parcel of land on Ocean Road. That parcel was subdivided into two lots, one of which was designated as 1444 Ocean Road [3] (the Four Twenty property) and abuts the Nulman property. The defendants, who are developers of real estate, hired Carrigan Engineering to assist them with the process of obtaining all the necessary permits to construct a single-family residence on the Four Twenty property. Carrigan Engineering, accordingly, produced a site development plan showing the location of the proposed structure in relation to what was believed to be the boundary line between the Four Twenty property and the Nulman property. The site development plan was stamped by Craig Richard Carrigan as a registered professional engineer and noted that the " [d]epicted boundary survey conforms with a Class III standard as adopted by the Rhode Island Registration of Professional Land Surveyors." [4] In November 2009, after defendants obtained a building permit approving the construction of the structure on the Four Twenty Property, construction began and was substantially completed by January 2011.

At that time, Four Twenty entered into a purchase and sale agreement to sell the Four Twenty property to a prospective buyer for a price of approximately $1.9 million. In conjunction with the proposed purchase and sale, the prospective buyer had a survey conducted which revealed that the structure was, in fact, entirely located on the Nulman property. Consequently, the buyer terminated the agreement to purchase the structure.

Lamoureux immediately contacted Ms. Nulman to inform her of the problem and attempted to determine whether an accommodation or agreement could be reached. Ms. Nulman informed him that the land was not for sale and ...


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