MIDDLE CREEK FARM, LLC and MIDDLECREEK, LLC, DOUGLAS W. POLITI & CATHERINE M. POLITI
PORTSMOUTH WATER & FIRE DISTRICT & THE CITY OF NEWPORT, by and through Its City Manager, Joseph Nicholson, Jr. & Laura Sitrin, Director of Finance & Support Services of
County Superior Court
Plaintiff: Neil P. Galvin, Esq.; James A. Hall, Esq.
Defendant: Adam Ramos, Esq.; Joseph A. Keough, Jr., Esq.
matter before the Court is Plaintiff Middle Creek Farm,
LLC's (Middle Creek) Motion for Summary Judgment and
Defendant Portsmouth Water & Fire District's (PWFD)
Motion to Dismiss for Failure to Join Indispensable Parties.
For the reasons stated herein, the Court grants Middle
Creek's Motion for Summary Judgment in part and denies
PWFD's Motion to Dismiss. Jurisdiction is pursuant to
Super. R. Civ. P. 12(b)(6), Super. R. Civ. P. 56(c), and G.L.
1956 § 9-30-11.
within matter concerns an eleven-lot subdivision that
straddles the border between Portsmouth and Middletown. Seven
lots have home sites located in Portsmouth, Rhode Island and
four lots have home sites located in Middletown, Rhode
Island. Three of the four lots (sub-lots 1, 2, and 4) that
have home sites in Middletown contain a portion of land
located in Portsmouth. One of the four lots (sub-lot 3) has
no land in Portsmouth and is entirely in Middletown.
See App. A. The subdivision was approved by both the
Middletown and Portsmouth planning boards. As part of that
approval, Middle Creek was required by the Portsmouth
Planning Board to install a water main in the new road of the
subdivision. PWFD has refused to permit Middle Creek to
connect the four sub-lots that have houses located in
Middletown to the water main, and, as stated above, three of
those lots contain property in Portsmouth.
parties have agreed to stipulated facts. Although PWFD agrees
to the stipulated facts, PWFD asserts that the stipulated
facts are insufficient for this Court to base its decision,
and alleges that there are facts in addition to those agreed
upon which must be developed in order for the Court to
properly render its decision. The stipulated facts are as
(1) [Paragraph one essentially provides a description of the
Middle Creek subdivision.] That the certain plat entitled,
"MIDDLE CREEK FARM SUBDIVISION A.P. 128 Lot 73
(Middletown) A.P. 68 Lot 71 (Portsmouth) Cornelius Drive
Portsmouth, RI 02871 Northeast Engineers & Consultants,
Inc. Project Number: 13172.1 Scale: 1"=80'
Subdivision Plan Date: 27 Sept 16" and recorded as Index
No. 1649 in the Portsmouth Land Evidence Records and recorded
as Plat No. 2017-5 in the Middletown Land Evidence Records
attached hereto as Exhibit 1 is the Subdivision plan recorded
in the Portsmouth Land Evidence Records. [See App.
(2) That the Subdivision contains 11 Sub Lots
(3) That Sub Lots 1-4 will not have home sites located in
(4) That Sub Lots 5-11 will have home sites located in
(5) That Sub Lots 5-11, as customers of PWFD within
PWFD's district, will be allowed to access PWFD water
through the installed main.
(6) That a portion of Sub Lots 1, 2 and 4 have land in
(7) That Sub Lots 1, 2 and 4 will be responsible for paying
PWFD taxes but have not yet been charged any such taxes.
(8) That Sub Lot 3 has no land in Portsmouth, RI.
(9) That Sub Lot 3 will not pay PWFD taxes.
(10) That the water main required by the Portsmouth Planning
Board was installed on the road/right of way in the location
as identified on the plan entitled "AS BUILT WATER
MAIN" Cornelius Drive, Scale 1" = 40' dated
January, 2017 attached hereto as Exhibit 2. [See
(11) That Newport [Water Division] does not oppose all 11 Sub
Lots receiving water through PWFD's water main.
(Stipulated Facts, Sept. 8, 2017) (emphasis in original
Creek argues that it is entitled to summary judgment based on
two theories. First, that the undisputed facts support this
Court's granting summary judgment based on equitable
principles. After review of the documents filed, the
arguments of counsel and the appropriate law, the Court finds
that there are genuine issues of material fact regarding
Middle Creek's claim for equitable relief, and thus,
summary judgment is inappropriate in that regard. Therefore,
summary judgment is denied on that basis.
Creek also seeks summary judgment based upon the language of
PWFD's Charter (the Charter) and G.L. 1956 §
46-15-2. Middle Creek contends that the matter before the
Court is essentially a matter of statutory construction and
that the undisputed facts, when applied to the language of
the Charter, require that all of the lots that have a portion
of property in Portsmouth be entitled to connect to the PWFD
water system. Middle Creek further argues that pursuant to
§ 46-15-2, PWFD may "extend its supply and
distribution mains" and "supply water" outside
its district because it has legally supplied water to a
location in Middletown in the past.
objects, alleging that the use of the word
"inhabitants" as used in Section 5 of the Charter
requires that the actual residence be located within
Portsmouth in order to be eligible for water service and that
§ 46-15-2 prohibits water service beyond the boundaries
of the PWFD, at least until various state agencies give their
approval. The Court will address each argument in turn.
Creek's Motion for Summary Judgment
Court Rule of Civil Procedure 56(c) provides that a court
should grant summary judgment "if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as matter of law."
Super. R. Civ. P. 56(c). When "ruling on a motion for
summary judgment the [hearing] justice must consider
affidavits and pleadings in the light most favorable to the
opposing party, and only when it appears that no genuine
issue of material fact is asserted can summary judgment be
ordered." O 'Connor v. McKanna, 116 R.I.
627, 633, 359 A.2d 350, 353 (1976) (citation omitted). The
nonmoving party "carries the burden of proving by
competent evidence the existence of a disputed material issue
of fact and cannot rest on allegations or denials in the
pleadings or on conclusions or legal opinions."
Accent Store Design, Inc. v. Marathon House, Inc.,
674 A.2d 1223, 1225 (R.I. 1996). Accordingly, summary
judgment is appropriate if the nonmoving party
'"fails to make a showing sufficient to establish
the existence of an element essential to that party's
case."' Beauregard v. Gouin, 66 A.3d 489,
493 (R.I. 2013) (quoting Lavoie v. Ne. Knitting,
Inc., 918 A.2d 225, 228 (R.I. 2007)). The mere existence
of a factual dispute alone will not preclude summary
judgment; rather, '"the requirement is that there be
no genuine issue of material
fact.'" Bucci v. Hurd BuickPontiac CMC Truck,
LLC, 85 A.3d 1160, 1170 (R.I. 2014) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)) (emphasis in original). An issue is
"genuine" if the pertinent evidence is such that a
rational factfinder could resolve the issue in favor of
either party, and a fact is "material" if it has
the capacity to sway the outcome of the litigation under the
applicable law. Nat'l Amusements, Inc. v. Town of
Dedham, 43 F.3d 731, 735 (1st Cir. 1995).