Providence County Superior Court
AAA Southern New England Robert G. Flanders, Jr., Esq. Adam M. Ramos, Esq
282 County Road, LLC Gerard M. DeCelles, Esq.
Chicago Title Insurance Company Thomas C. Plunkett, Esq
Narragansett Engineering, Inc. Brian C. Newberry, Esq. Adam C. Benevides, Esq.
James Mancini, Jr. Carol A. Zangari, Esq. Mark P. Dolan, Esq.
Before the Court are various motions seeking summary judgment in the above consolidated cases. The three cases stem from the sale of a certain piece of real estate located in Barrington by James A. Mancini, Jr. (Mancini, Jr.) to AAA Southern New England (AAA). After the sale, but before construction was completed on the building that AAA commissioned to be built, 282 County Road, LLC filed suit against AAA alleging that AAA was trespassing on land owned by 282 County Road, LLC. Essentially, the suit between 282 County Road, LLC and AAA amounted to a boundary dispute. Subsequently, AAA filed suit against Chicago Title Insurance Company (CTIC), Richard N. Morneau (Morneau), John B. Murphy (Murphy), Morneau & Murphy (M&M), Mancini, Jr. and Narragansett Engineering, Inc. (NEI) alleging, among other things, breaches of professional duties, breaches of covenants, and fraudulent and negligent misrepresentations. Currently pending are six motions for summary judgment: (1) 282 County Road, LLC's motion as against AAA; (2) AAA's cross-motion as against 282 County Road, LLC; (3) M&M's motion (joined by NEI) as against 282 County Road, LLC; (4) AAA's motion as against Mancini, Jr.; (5) AAA's motion as against NEI; and (6) AAA's motion as against CTIC, Morneau, Murphy, and M&M. Also pending is NEI's motion to amend its admissions.
Facts and Travel
AAA's Purchase of Lot 306
On September 25, 2008 (the Closing Date), AAA purchased from Mancini, Jr., by warranty deed, certain real property located at 280 County Road in Barrington, as described on Assessor's Plat 23, Lot 306, Parcel 45 (Lot 306). Lot 306 is bordered by Maple Avenue to the south, County Road to the east, what is referred to either as Lot 1 or the Codega Lot to the west, and 282 County Road, also described on Assessor's Plat 23, Lot 38, Parcel 44 (Lot 38) to the north.
On the Closing Date, Mancini, Jr. executed and delivered an affidavit to AAA and CTIC. The affidavit represented that Mancini, Jr. was the only individual "in possession of all or any portion" of Lot 306 and that Mancini, Jr. was "not aware of any boundary claims of any type or nature" relating to Lot 306. See Mancini, Jr. Aff. Additionally, the warranty deed delivered by Mancini, Jr. included the following covenants: (1) Covenant of Seisin; (2) Covenant against Encumbrances; (3) Covenant of Right to Convey; (4) Covenant of Quiet Enjoyment; and (5) Covenant of Warranty.
Also on the Closing Date, CTIC issued to AAA an Owner's Policy of Title Insurance, Policy No. 72306-76537302 (the Policy), which insured AAA's title to Lot 306 in the amount of $950, 000. The Policy was signed by CTIC's authorized agent, Murphy. The Policy insured AAA's title against certain risks, including that title to Lot 306 was unmarketable, defective, or subject to encumbrances not specifically excepted from coverage. Both Morneau and Murphy were authorized agents of CTIC. Even though Morneau and Murphy were CTIC's agents, M&M was engaged by AAA to serve as AAA's closing attorney. Before the Closing Date, no defects, liens, or encumbrances on Lot 306 were ever disclosed to AAA by any party.
After the Closing Date, AAA demolished the then-existing building and obtained approval from the Planning Board of Review in Barrington to begin construction on a new building. AAA engaged an architectural firm to assist with the planning for construction. The architectural firm engaged NEI to perform a land survey of Lot 306 on October 24, 2008. The survey completed by NEI did not contain any mention of encumbrances on Lot 306. After beginning construction, AAA received notice from 282 County Road, LLC alleging that AAA's construction encroached upon a triangular strip of land on the northerly side of Lot 306 (the Disputed Area). AAA was informed by 282 County Road, LLC that 282 County Road, LLC's predecessors in title had twice previously filed Notices of Intent to Dispute Interrupting Adverse Possession (the Notices) in the Land Evidence Records of the Town of Barrington (Barrington Land Evidence Records).
AAA, after receiving notice of 282 County Road, LLC's claim to the Disputed Area, emailed M&M on November 25, 2009. AAA later met with M&M to discuss the claims. The actual nature of the conversation between the parties is disputed, but, as a result, AAA concluded that the Notices did not affect the title to Lot 306. Therefore, AAA continued construction of the building and did not file a claim under the Policy with CTIC. While construction was ongoing, 282 County Road, LLC initiated suit on December 31, 2009 against AAA seeking to enjoin AAA's construction, requiring AAA to restore Lot 306 to the condition that it was in before construction, and monetary damages. The suit initially sought a preliminary injunction against AAA's continued construction, which AAA defended against. However, the parties agreed that the Court would not enter a temporary restraining order with respect to AAA's construction of the building.
AAA later learned that the Notices were discoverable in the chain of title to Lot 306 by searching the land evidence records. The predecessor in title to Lot 38 first recorded a notice in the Barrington Land Evidence Records on December 4, 1972 (the 1972 Notice) in the grantee index under the names of Lot 306's prior owners, James Mancini (Mancini, Sr.) and Anna Mancini. A second notice was filed on June 17, 1993 in the computerized index under Mancini, Jr.'s name and under the names of Mancini, Sr. and Anna Mancini (the 1993 Notice).
On February 16, 2011, AAA submitted a claim under the Policy to CTIC. CTIC responded to AAA by denying AAA's claim and refusing to defend AAA in the lawsuit brought by 282 County Round, LLC. After receiving CTIC's first denial, AAA responded to CTIC's basis for denying coverage and again sought for CTIC to provide coverage under the Policy. CTIC once again responded to AAA and once again CTIC denied AAA's request. Finally, AAA sent a third request for coverage to CTIC, which CTIC again denied by letter dated June 9, 2011.
AAA then filed two lawsuits in connection with its response to 282 County Road, LLC's claim to the Disputed Area. The suit filed by 282 County Road, LLC and the two suits filed by AAA were consolidated by order of this Court on March 20, 2012. AAA's claims against Mancini, Jr. are for: (1) fraud; (2) negligent misrepresentation; (3) breach of warranty deed; and (4) declaratory judgment. AAA's claims against NEI are for: (1) breach of contract; (2) breach of the implied covenant of good faith and fair dealing; (3) negligence; and (4) negligent misrepresentation. AAA's claims against CTIC are for: (1) declaratory judgment; (2) breach of contract; (3) breach of the implied covenant of good faith and fair dealing; and (4) bad faith. AAA's claims against Morneau, Murphy, and M&M are for: (1) civil malpractice; and (2) declaratory judgment.
Back Title to Lot 306 and Lot 38
Lot 306 and Lot 38 were at one point a single, larger parcel entirely held by Emma Bradford (Bradford). On September 14, 1939, Bradford conveyed what would become known as Lot 306 to Mancini, Sr. by a deed recorded in Book 36 at Page 436 of the Barrington Land Evidence Records. This deed described the land conveyed as follows:
"Beginning at the southwesterly corner of the parcel herein described at a point in the northerly line of Maple Avenue, said point being the southeasterly corner of Lot No. 1 on that plat entitled "Plat of House Lots No. 2, Barrington, R.I. laid out by H.L. Cady May 1913 Charles F. Chase Engineer"; thence northerly along the easterly line of said Lot No. 1, one hundred (100) feet to a corner; thence easterly about two hundred fifteen (215) feet to a point in the westerly line of County Road, said point being one hundred (100) feet northerly from the northerly line of said Maple Avenue; thence southeasterly along the said westerly line of County Road, one hundred (100) feet to the northwesterly corner of County Road and Maple Avenue; thence westerly about two hundred sixty-four (264) feet to the place of beginning; bounded westerly by land belonging to Giuseppe Codega, northerly by other land of this grantor, easterly by said County Road and southerly by said Maple Avenue."
Title to Lot 306 passed from Mancini, Sr. to Mancini, Jr. Mancini, Jr. later passed title to AAA, utilizing the same description as was used in the 1939 deed from Bradford to Mancini, Sr.
Bradford passed away in 1956. In May 1958, the Executor of Bradford's Estate sold Bradford's remaining property. On May 21, 1958, the Executor conveyed to Albert Berard (Berard) what is now known as Lot 38 by the following description:
"Beginning at the point of intersection of the southerly line of Hamilton Avenue with the southwesterly line of County Road; then southeasterly bounding northeasterly on County Road one hundred forty seven and 19/100 (147.19) feet to a corner; thence turning an interior angle of 56°16'40'' and running westerly two hundred two and 27/10 [sic] (202.27) feet to land now or lately of Giuseppe Codega et al; thence turning an interior angle of 94°09'30'' and running northerly along a wire fence and bounding westerly on the last named land one hundred twenty two and 75/100 (122.75) feet to Hamilton Avenue; thence turning an interior angle of 85°50'30'' and running easterly bounding northerly on said Hamilton Avenue one hundred twenty nine and 45/100 (129.45) feet to County Road and the point and place of beginning, the last described course forming an interior angle of 123°43'20'' with the first described course."
Later, by deed dated May 21, 1958, Berard conveyed by warranty deed the exact same described land to Angelo and Nicholas Gizzarelli (the Gizzarellis).
On May 22, 1958, the Executor of Bradford's Estate conveyed directly to the Gizzarellis what has become known as the Disputed Area by the following description:
"All right, title and interest which Emma S. Bradford had at the time of her decease in and to that parcel of land situated on the southwesterly side of County Road in the Town of Barrington in the State of Rhode Island, bounded and described as follows:
"Beginning at a point in the southwesterly line of County Road one hundred forty seven and 19/100 (147.19) feet southeasterly of the intersection of said line of County Road with the southerly line of Hamilton Avenue; thence southeasterly bounding northeasterly on said County Road to land now or lately of James Mancini; thence westerly bounding southerly on the last named land to land now or lately of Giuseppe Codega et al; thence easterly in a straight line two hundred two and 27/100 (202.27) feet to County Road at the point or place of beginning."
This description creates a pie shaped piece of land that has boundaries of County Road, Lot 306 and Lot 38.
On August 13, 1980, the Gizzarellis conveyed Lot 38, including the Disputed Area, to Michael Romano (Romano). The warranty deed contained descriptions of a "Parcel I" and a "Parcel II." The description of "Parcel I" matches the description used in the May 1958 deeds from the Executor to Berard and from Berard to the Gizzarellis. The description of "Parcel II" matches the description used in the May 1958 deed from the Executor to the Gizzarellis, except that it does not include the qualifying statement regarding "[a]ll right, title and interest which Emma S. Bradford had at the time of her decease . . . ." The rights of Romano were later transferred to 282 County Road, LLC.
Standard of Review
"Summary judgment is a proceeding in which the proponent must demonstrate by affidavits, depositions, pleadings and other documentary matter . . . that he or she is entitled to judgment as a matter of law and that there are no genuine issues of material fact." Palmisciano v. Burrillville Racing Ass'n, 603 A.2d 317, 320 (R.I. 1992) (citing Steinberg v. State, 427 A.2d 338 (R.I. 1981)). The court, during a summary judgment proceeding, "does not pass upon the weight or the credibility of the evidence but must consider the affidavits and other pleadings in a light most favorable to the party opposing the motion." Id. (citing Lennon v. MacGregor, 423 A.2d 820 (R.I. 1980)). Moreover, "the justice's only function is to determine whether there are any issues involving material facts." Steinberg, 427 A.2d at 340. The court's purpose during the summary judgment procedure is issue finding, not issue determination. O'Connor v. McKanna, 116 R.I. 627, 359 A.2d 350 (1976). Therefore, the only task for the judge in ruling on a summary judgment motion is to determine whether there is a genuine issue concerning any material fact. Id.
"When an examination of pleadings, affidavits, admissions, answers to interrogatories and other similar matters, viewed in a light most favorable to the party opposing the motion, reveals no such issue, the suit is ripe for summary judgment." Indus. Nat'l Bank v. Peloso, 121 R.I. 305, 307-08, 397 A.2d 1312, 1313 (1979). "[T]he opposing parties will not be allowed to rely upon mere allegations or denials in their pleadings. Rather, by affidavits or otherwise they have an affirmative duty to set forth specific facts showing that there is a genuine issue of material fact." Bourg v. Bristol Boat Co., 705 A.2d 969, 971 (R.I. 1998). However, it is not an absolute requirement that the nonmoving party file an affidavit in opposition to the motion. Steinberg, 427 A.2d at 338. If the affidavit of the moving party does not establish the absence of a material factual issue, the trial justice should deny the motion despite the failure of the nonmoving party to file a counter-affidavit.