Plaintiff: John O. Mancini, Esq.
Defendant: Jeffrey H. Gladstone, Esq.; Cale P. Keable, Esq.;
John Deacon, Esq.; Americo M. Scungio, Esq.; Catherine V.
Eastwood, Esq.; Erich J. Hasselbacher, Esq.
in Counterclaim/Third Party Plaintiffs James Courter
(Courter) and Sorgenfrei, LLC (Sorgenfrei), together with
Involuntary Plaintiffs in Counterclaim/Involuntary Third
Party Plaintiffs JVLV Realty, Inc. (JVLV), Howard L.
Haronian, M.D. (Dr. Haronian), James and Lynn Vallides (the
Vallideses), and Sally Merry (Merry) (collectively, the Unit
Owners), move for partial summary judgment against
Plaintiff/Counterclaim-Defendant W.H.I., Inc. (WHI or
Declarant), Third Party Defendant Peter V. Catalano
(Catalano), and Third Party Defendant WHI Parking, LLC (WHI
Parking), a wholly owned subsidiary of WHI (collectively,
Plaintiffs). Specifically, the Unit Owners claim that there
are no genuine issues of material fact with respect to
parking-related issues raised in their memorandum. In
response, Plaintiffs object to the Unit Owners' motion
and also move for summary judgment, seeking a declaration
that the Parking Management Agreement (the PMA) and the Cross
Easement are valid and binding, and that all claims asserted
against Catalano in his individual capacity be dismissed.
Jurisdiction is pursuant to Super. R. Civ. P. 56(c) and G.L.
1956 §§ 9-30-1 et seq.
underlying facts of this case have been set forth in this
Court's July 24, 2017 Decision. See W.H.I., Inc. v.
Courter, No. WC-2015-0463, 2017 WL 3209052 (R.I. Super.
July 24, 2017). Relevant to this Decision are the facts
surrounding the parking and easement-related issues in the
December 23, 1985, WHI formally purchased the property in
dispute, located at 38 Bay Street in Westerly, Rhode Island,
and created the Watch Hill Inn Condominium (WHIC). Catalano
Aff. ¶ 4, Oct. 26, 2017. WHI is the declarant of that
certain Declaration of Condominium recorded in the Land
Evidence Records of the Town of Westerly on February 17, 2006
in Book 1504, at Page 176 (the Declaration), the same which
was amended on July 7, 2006 and recorded in the Land Evidence
Records in Book 1550, at Page 187 (the First Amended
Declaration). Id. at ¶ 2. WHI currently
owns-and has owned since the Declaration's inception-five
units at WHIC: W201, W202, W203, W402, and W501. Id.
at ¶ 3. The Watch Hill Inn Condominium Association
(WHICA) is a condominium association that was created by the
Declaration and governs the units located at WHIC.
Id. at ¶ 4.
1986 to 2005, Watch Hill Inn was renovated and upgraded to
include sixteen efficiency hotel units, one residential
apartment, a banquet facility for 200 persons, and an
indoor/outdoor restaurant for 180 patrons. Id. at
¶ 5. After the Watch Hill Inn was cited for sixty-five
violations under the Rhode Island Fire Codes, it was forced
to shut down to conform to the new regulations. Catalano Aff.
¶ 9, June 1, 2017. WHI appealed to the State of Rhode
Island Rehab Board and was eventually approved for a
continued, nonconforming "mixed-use status."
Id. at ¶ 10. RGB Architects (RGB) then prepared
the condominium plans and specifications, which were
subsequently filed with the Town of Westerly Building and
Zoning Departments, the Department of Environmental
Management (DEM), Historic Landmark Preservations, and
Coastal Resources. Catalano Aff. ¶ 6, Oct. 26, 2017. Due
to these new regulations, WHI was approved for eleven units
consisting of ten residential dwelling units and one
Town of Westerly adopted Article XI, § 260-77-a parking
regulation zoning ordinance-on October 16, 1998 in Chapter
Number 1242, and readopted on May 12, 2003 in Chapter Number
1439 (the Zoning Ordinance). Specifically, the Zoning
"A. Parking required. Any structure or use, erected or
developed after the date of passage of this chapter, must
provide off-street parking facilities . . . in accordance
with the following regulations:
"(1) Residential dwelling: two car spaces for each
"(2) Hotels/motels and inns: one space per room plus one
for every three employees on the largest shift, plus one
space per four seats capacity of all meeting/assembly rooms
and associated restaurants.
. . . .
"B. Plans and specifications for parking facilities.
Plans and specifications for the required parking facility
and its access drives shall be submitted at the time of
application for a permit for the main use. In allocating area
for off-street parking facilities, each parking space shall
have a minimum width of nine feet, a minimum length of 18
feet and shall be served by suitable aisles to permit access
into all parking spaces. In no case shall the gross area per
parking space be less than 270 square feet. Such plans and
specifications shall include planted islands and buffers as
well as a lighting plan." Unit Owners' Mem. in Supp.
of Mot. for Partial Summ. J. (Unit Owners' Mot.), Ex. F.
March 15, 2005, RGB prepared a site plan for Declarant with
respect to the WHIC property (the RGB Parking Plan). The RGB
Parking Plan identified twenty-three total spaces on the WHIC
property, which were two handicapped spaces, three non-valet
spaces, and eighteen valet spaces. Unit Owners' Mot., Ex.
G. The RGB Parking Plan further regulated the non-handicapped
parking spaces as follows: ten parking spaces were assigned
to ten hotel units (one parking space per one hotel unit),
eight parking spaces were designated for patrons at the
restaurant (one parking space per four seats in a thirty-seat
restaurant), and three parking spaces were designated for the
restaurant's employees (one parking space per three
employees in a nine-employee restaurant). Id.
Essentially, the RGB Parking Plan complied with §
260-77(A)(2) of the Zoning Ordinance, thus recognizing the
WHIC property at the time as a hotel, motel, or inn.
See Unit Owners' Mot., Ex. F. The RGB Parking
Plan predated the formation of the WHICA by several months.
See Unit Owners' Mot., Ex. G; Pls.' Mem. in
Obj. to Partial Summ. J. and in Supp. of Mot. for Summ. J.
(WHI's Mot.), Ex. 1.
WHI submitted a separate site plan for approval by the Town
of Westerly dated October 12, 2005 relating to the WHIC
property; this plan was approved by the Westerly Zoning
Officer on November 4, 2005. This plan contained a parking
plan which identified sixteen parking spaces on the WHIC
property (the Town-Approved Parking Plan). Unit Owners'
Mot., Ex. H. According to Declarant, these sixteen on-site
compact "stacked" parking spaces were used
primarily for the restaurant staff and also contained three
required handicap spaces. Catalano Aff. ¶ 5, Oct. 26,
2017. The Town-Approved Parking Plan was in effect until July
21, 2006, when a subsequent plan was required with the First
Amended Declaration. Id. at 7. According to the Unit
Owners, however, a subsequent plan for parking was never
on January 15, 2006, WHI, along with the Operator, WHI
Parking, negotiated with BSI, Inc. (BSI)-a corporation that
owned an adjacent property to the WHIC property to which the
Bayside Inn Motel Condominium Association (BSA) was
located-to share parking spaces. Id. at ¶ 8.
Their agreement was memorialized into the PMA. WHI's
Mot., Ex. 1. Catalano, the Vice President of WHI, is also the
President of BSI; WHI Parking is a wholly owned subsidiary
company of WHI. Catalano Aff. ¶ 1, Oct. 26, 2017;
WHI's Mot., Ex. 1. As stated in the PMA, the purpose of
entering into such a transaction was for WHI Parking to
"operate and manage the parking for the [WHI and BSI]
Properties." WHI's Mot., Ex. 1, at 1. Furthermore,
even though the PMA was entered into before both the WHICA
and BSA had been created, the PMA nonetheless bound the
Associations. As articulated therein,
"Whereas, the parking lot areas will be Common
Elements of the Associations and while the land is owned by
the Association, the parking operation will be managed by the
Operator under this 'Parking Management Agreement',
(the 'Agreement'), and
. . . .
"Whereas, WHI and BSI intend to file their
respective condominium documents with the State of Rhode
Island and subsequently record the documents with the Town of
Westerly, at which time WHI and BSI will transfer their
property rights and ownership to their respective
Association. Consequently, the Associations will replace WHI
and BSI, and this Agreement will become binding between the
Associations and the Operator at the time of the recordings .
. . . All the obligations of the Parties contained herein
will be preserved." Id. at 2.
is a lease with an initial term of forty-nine years with
unlimited five-year options. With respect to the parking
management services, the PMA stated in part:
"a. Management Services - In exchange for the
Agreement, Operator will provide management services to
operate the Properties parking lots, both assigned and
non-assigned parking spaces, control the flow of traffic and
maintain the fire lanes, direct delivery, screen unauthorized
vehicles, and coordinate the reasonable parking needs of
occupants, guests, deliveries, employees and renters during
the periods of operation on an [sic] year round basis.
"b. Parking Spaces - The Parties agree Operator
will take possession of all parking spaces . . . Operator may
rent for profit the balance of the parking spaces (both
assigned and non-assigned) to the general public, restaurant
patrons, and guest of the dwelling spaces, at a parking rate
determined solely by the Operator. The Parties further agree
all revenue derived from the Parking income is for the
benefit of the Operator.
. . . .
"c. Compliance - The Parties agree Operator
will operate the parking lot at its sole discretion including
location and relocation of parking space assignments,
provided such operation is in accordance with the Town of
Westerly Zoning Ordinance.
"i. Operator agrees it will conform to the By-Laws of
the Association(s) at the time of Filing(s), and WHI and BSI
agree that any modifications to the Association(s) By-Laws
will not interfere with Operator's rights under this
"ii. This Agreement shall be automatically binding upon
the Association(s) at the time of Filing.
. . . .
"f. Parking Rates - Operator agrees to post or
make available at the Reception Office, its daily, weekly,
monthly and or seasonal rates, which are subject to change at
the sole discretion of the Operator." Id. at
the PMA provided the following provision on base rent to be
allocated for both properties:
"a. In exchange for the Agreement and use of the BSI
parking lot and facilities, Operator agrees to pay BSI a
nominal annual rent equal to one thousand ($1, 000.00)
dollars per year payable on August 1st of each and
every year of the Lease Term. Such annual rent is referred to
as (the 'Base Rent').
"b. In exchange for the Agreement and the use of the WHI
parking lot and ramp, Operator will provide Management
Services as consideration, but will not pay Base Rent to WHI
as the WHI Property has a pre-existing non-conforming use of
its off-street parking; and most of its parking including
ingress and egress will be on BSI Property. Therefore,
Operator will generate very little revenue from the WHI
limited parking spaces. The WHI Association when created will
not receive Base Rent.
"c. In exchange for the Agreement and the right to use
the lot and facilities of the Watch Hill Inn owned by WHI,
Operator agrees to pay WHI an Annual Rent equal to One
Thousand ($1, 000.00) Dollars payable on August
1st of each and every year of the Agreement Term
as Base Rent. This Base Rent and any Additional Rent will not
be transferred to the WHI Association at any time."
Id. at 4.
also stated that the base rent would be increased every five
years by one hundred dollars as "Additional Rent, "
and that this additional rent added to the base rent will
become the "Adjusted Base Rent." Id.
Furthermore, during the first lease renewal option period,
the Adjusted Base Rent would double the Adjusted Base Rent in
the forty-ninth year, and that subsequent renewals would
increase by two hundred dollars per every five-year
under section six of the PMA, titled "Representations,
" the parties agreed to the following:
"a. The Parties represent and acknowledge the following:
"i. Parking Spaces - The Parties acknowledge
the Parking Plans . . . indicate where the assigned and
non-assigned parking spaces for the Properties are located.
Such locations are subject to change by the Operator but must
be in conformance with Westerly Zoning Codes.
. . . .
"iii. Easements - The Parties acknowledge there
are Recorded Easements, Court Orders, and Right of Ways for
the benefit of the Parties and others." Id. at
one month later, on February 17, 2006, the WHICA was created
and its Declaration was recorded, naming WHI as its
Declarant. WHI Mot., Ex. 2. On the same day, a Cross Easement
and Right of Way Agreement (the Cross Easement) between WHI
and BSI was recorded in the Land Evidence Records of the Town
of Westerly in Book 1504, at page 168. Catalano Aff. ¶
11, Oct. 26, 2017; see also WHI's Mot., Ex. 3.
The Cross Easement granted BSI ingress and egress "by
all manner of vehicles and by foot the portion of the common
driveway which is located on the WHI land, " as well as
a "designated handicapped parking area which is located
on the WHI land." WHI's Mot., Ex. 3. In return, the
Cross Easement granted WHI ingress and egress "by all
manner of vehicles and by foot the portion of the common
driveway which is located on the BSI land, " as well as
a "[d]rainage easement which is located on the BSI
land." Id. Furthermore, the Cross Easement also
stated the following: "WHI and BSI hereby agree that
neither party will park vehicles in or otherwise obstruct in
any way the common driveway nor will they use or permit to be
used said driveway in any way which will hinder the other
party's use of said driveway." Id. Attached
to the Cross Easement was a parking plan, labeled
"Exhibit A, " that identified sixteen parking
spaces on the WHIC property (the Cross Easement Parking
Cross Easement was acknowledged in the Public Offering
Statement and the Declaration. See Unit Owner's
Mot., Ex. E, § 5 ("There are also vehicular and
pedestrian easements with the adjoining property, located at
42-44 Bay Street, Westerly, Rhode Island, for ingress and
egress in addition to a handicap parking space requirement
for the benefit of the [sic] 42-44 Bay Street.");
WHI's Mot., Ex. 2, Ex. 4 thereto ("Subject to
easement for pedestrian and vehicle ingress and egress
benefiting BSI, Inc. Subject to parking easement benefiting
BSI, Inc."). When the Declaration was amended on July 7,
2006, exhibit four was updated to include the following
language: "Subject to a Cross Easement and Right of Way
Agreement recorded in the Westerly Land Evidence Records on
February 17, 2006 at 10:21 a.m. in Book 1504 at Page
168." Catalano Aff., Ex. B, Oct. 26, 2017.
the Public Offering Statement provided to all Unit Owners
prior to their acquisitions stated the following:
"One assigned parking space is allotted to each Unit
with one bedroom. Each Unit that contains two bedrooms shall
have one assigned parking space and the use of one valet
parking space. The Commercial Unit will have sufficient
parking spaces for its employees and guests in accordance
with the Westerly Zoning Code. Two (2) assigned handicap
parking spaces are assigned to the Units 203 and 204, which
are the handicapped accessible Residential Unit and the
Restaurant Unit, respectively." Unit Owner's Mot.,
Ex. E, § 3.
Public Offering Statement did state, however, that
"Limited Common Elements include exterior stairs,
stairways, parking spaces and storage spaces, if
any, for each Unit." Id. (emphasis added). The
description of parking was further delineated in §
7.1(e) of the Declaration as amended on July 7, 2006 (First
"There are eleven (11) designated parking spaces
including 2 handicap parking spaces (one for the Handicapped
Accessible Unit, W203, and one for the Restaurant Unit,
W204), ten (10) 'valet parking spaces' and sufficient
parking spaces for the Restaurant Unit (employees and
patrons), intended to be used for the parking of private
registered passenger cars of occupants/guests of Units as
delineated in the survey plan attached hereto. The Executive
Board reserves the right to change the location of the
designated parking spaces and allow the valet service and/or
Management Company to use unoccupied parking spaces in the
Unit Owner's absence and non-use. Campers, trucks,
recreational vehicles, trailers, larger SUV's or vans are
not permitted upon the premises and shall be removed at the
Owner's expense." WHI's Mot. for Summ. J. (June
2, 2017), Ex. 7.
the Declaration also referred to the survey plans prepared by
RGB. See WHI's Mot., Ex. 2, Ex. 3 thereto
("That set of plans filed in the Westerly Land Evidence
Records contemporaneously herewith entitled, 'WATCH HILL
INN, 38 BAY STREET, WATCH HILL, RHODE ISLAND 02891, HOTEL
CONDOMINIUM PROJECT ISSUED ON FEBRUARY 10, 2006.'").
These plans delineated the parking area which was common area
and also those areas of WHICA, which were limited common
elements. Catalano Aff. ¶ 48, Oct. 26, 2017.
21, 2006, WHI filed an Amended Site Survey for the Watch Hill
Inn property, which was recorded in Book 2006 at Page 23 in
the Town of Westerly Land Evidence Records (the Amended Site
Survey). WHI's Mot., Ex. C. The Amended Site Survey
delineated the common elements of the property as "CE,
" and the limited common elements as "LCE."
Catalano Aff. ¶ 19, Oct. 26, 2017. The Amended Site
Survey also contained an easement note, which stated that the
site was subject to the Cross Easement, delineated the
parking easement in favor of BSI for a handicap parking
space, and identified limited common elements to Unit 204 and
Unit 203. See WHI's Mot., Ex. C. It also did not
delineate any parking spaces as limited common elements for
the Unit Owners. Catalano Aff. ¶ 20, Oct. 26, 2017. This
Site Survey, as well as the First Amended Declaration, was
provided to Carmen Courter, Katrina Courter, and Donica
Dohrenwend when they purchased Unit W301. Id. at
business affairs and protocols are governed by the Executive
Board. Id. at ¶ 41. The first WHICA meeting was
held on December 26, 2006, a budget meeting as well as the
first annual meeting was held on July 14, 2007, where the
first Executive Board was formed, and annual meetings
occurred thereafter. Id. The Executive Board has
always maintained a three-member composition, ranging from
members such as Ray Willis, Catalano, Dr. Haronian, Howard
Menaker, Dana V. Catalano, Mark Szaro, and James Vallides.
Id. at ¶ 42.
served as President of the Executive Board from 2006 to 2016,
and currently serves as a WHICA Board Advisor Representative
for the majority Unit Owners. Id. at ¶ 43. He
alleges he never acted in an individual capacity nor ever
held himself out to be anything other than an agent of
Declarant and President of the Executive Board. Id.
at ¶ 44. In addition, Catalano alleges that Declarant
has never acted unilaterally with respect to implementing any
of the amendments to the Declaration or any actions of WHICA;
rather, he claims, Declarant has acted in conjunction with
legal advice and after a vote of the Executive Board at a
duly noticed meeting. Id. at ¶ 45.
sold the first unit of the WHICA to Carmen Courter, Katrina
Courter, and Donica Dohrenwend (the Courter Parties) on July
17, 2006, and the second unit was sold to Merry on August 11,
2006. See WHI Mot. for Summ. J. (June 2, 2017), Exs.
8, 11. On November 22, 2006, the third unit was sold to
William and Carol Reudgen (the Reudgens), and, on February
16, 2007, the fourth unit was sold to the Vallideses. See
id. at Exs. 13, 16. On August 15, 2007, Dr. Haronian
entered into an option to purchase one unit from WHI. See
id. at Ex. 20. Subsequently, Declarant sold the fifth
unit to Watch Hill Design, LLC on July 25, 2008; at the time,
Dr. Haronian was Watch Hill Design, LLC's only member.
See id. at Exs. 31-32. Dr. Haronian eventually
purchased that same unit from Watch Hill Design, LLC on
December 16, 2009. See id. at Ex. 49. In addition,
the unit owned by the Reudgens was foreclosed on by the
mortgagee on or about April 5, 2010. See id. at Ex.
50. On June 14, 2011, JVLV, an entity owned in part by the
Vallideses, purchased from the bank the foreclosed unit
formerly owned by the Reudgens. See id. at Ex. 72.
Then, on or about September 7, 2012, Sorgenfrei purchased the
Courter Parties' Unit W301. See id. at Ex. 87.
During that same month, on September 28, 2012, HJM, LLC
purchased the sixth unit-the former restaurant unit-from
Declarant. See id. at Ex. 89. The first parking
re-arrangements occurred when the restaurant was converted to
a two-bedroom residential unit. Catalano Aff. ¶ 49, Oct.
26, 2017. Two parking spaces were assigned to this unit as a
result of the conversion, and two spaces were assigned to
Unit W401, owned by Merry; the balance assigned, according to
Declarant, remained with WHI. Id.
Unit Owners bring this action before this Court to
"vindicate [their] rights with respect to their parking
spaces" on the WHIC property and to terminate
Declarant's usurpation of parking spaces for
Declarant's own gain. Additionally, the Unit Owners seek
this Court to prohibit any further interference with their
easement right to freely pass and repass over the Cross
filing the pending motion for partial summary judgment, the
Unit Owners request the following declaratory relief: (1) the
two parking spaces allocated to each Unit Owner constitute
limited common elements under the Public Offering Statement,
the First Amended Declaration, the Rhode Island Condominium
Act (the Act), and/or Rhode Island law; (2) the Unit Owners
are entitled to terminate, without penalty, WHICA's
participation in the PMA; (3) Declarant has interfered with
the Cross Easement by placing gates, planters and other
obstructions within the defined Cross Easement; (4) Declarant
violated the terms of the Public Offering Statement and the
First Amended Declaration by eliminating parking spaces on
the WHIC property that existed as of the date of the First
Amended Declaration, thereby failing to provide two parking
spaces allotted to each Unit Owner on the WHIC property; (5)
WHIC's property may not be used by anyone for commercial
parking purposes without the permission of the WHICA, and
then only with the issuance of a commercial parking
certificate by the Town of Westerly as required by ordinance;
(6) a commercial parking certificate issued by the Town of
Westerly for the Bayside property (2016 Commercial Parking
Certificate) does not permit WHI Parking to use the parking
spaces on the WHIC property for commercial parking
activities; (7) Declarant's interference with and/or
elimination of the Unit Owners' parking spaces by
reducing the number of usable parking spaces on the WHIC
property constitutes a violation of G.L. 1956 §
34-36.1-2.08(a) of the Act; (8) pursuant to §
34-36.1-3.14 of the Act, the Unit Owners are due an
accounting and their pro rata share of the surplus funds
acquired by WHI Parking and/or Declarant through the
commercial use of the Unit Owners' parking spaces; (9)
the PMA must be terminated pursuant to § 34-36.1-3.05 of
the Act based upon the sworn statement of each of the Unit
Owners; (10) the PMA is void and must be set aside for
failure of consideration; and (11) the September 11, 2015
invoice for parking charges directed to Courter is void
and/or unenforceable. Plaintiffs have timely objected to
these requests for declaration and, in the interim, also
request a declaration that the PMA and Cross Easement are
valid and binding. Additionally, Plaintiffs assert that
Catalano, in his individual capacity, should be dismissed
from this case as a third-party defendant.
judgment is an extreme remedy and should be granted only when
'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 [a]
matter of law.'" Rose v. Brusini, 149 A.3d
135, 139 (R.I. 2016) (quoting Plunkett v. State, 869
A.2d 1185, 1187 (R.I. 2005)). "'Only when a review
of the admissible evidence viewed in the light most favorable
to the nonmoving party reveals no genuine issues of material
fact, and the moving party is entitled to judgment as a
matter of law, will this Court . . . grant . . . summary
judgment.'" Id. at 139-40 (quoting
Nat'l Refrigeration, Inc. v. Standen Contracting
Co., 942 A.2d 968, 971 (R.I. 2008)). "The party
opposing 'a motion for summary judgment 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.'" Id. at 140 (quoting
Nat'l Refrigeration, Inc., 942 A.2d at 971).
the Uniform Declaratory Judgments Act (UDJA), this Court
possesses the "power to declare rights, status, and
other legal relations whether or not further relief is or
could be claimed." Sec. 9-30-1. A decision to grant or
deny relief, however, is purely discretionary under the UDJA.
Sullivan v. Chafee, 703 A.2d 748, 751 (R.I. 1997).
The stated purpose of the UDJA is "to settle and to
afford relief from uncertainty and insecurity with respect to
rights, status, and other legal relations . . . ." Sec.
9-30-12; see also Millett v. Hoisting Eng'rs'
Licensing Div. of Dep't of Labor, 119 R.I.
285, 291, 377 A.2d 229, 233 (1977) ("The purpose of
declaratory judgment actions is to render disputes concerning
the legal rights and duties of parties justiciable without
proof of a wrong committed by one party against another, and
thus facilitate the termination of controversies.").
Factors to be considered when determining whether declaratory
judgment relief is appropriate include the following:
"the existence of another remedy, the availability of
other relief, the fact that a question may readily be
presented in an actual trial, and the fact that there is
pending, at the time of the commencement of the declaratory
action, another action or proceeding which involves the same
parties and in which may be adjudicated the same identical
issues that are involved in the declaratory action."
Berberian v. Travisono, 114 R.I. 269, 273, 332 A.2d
121, 123-24 (1975).
the Unit Owners Have the Right to Park on the Bayside
Unit Owners assert that there is no legal obligation, under
the Cross Easement, requiring the BSA unit owners to grant
the WHICA non-declarant unit owners an enforceable and
transferable right to use the Bayside property in perpetuity
for their parking spaces. Instead, the Unit Owners claim that
their sole avenue of relief is to enforce their rights to two
parking spaces pursuant to the Public Offering Statement,
First Amended Declaration, and/or the Town-Approved Parking
Plan. Catalano, either individually or through a related
entity, controls Bayside because he or an affiliated entity
owns a majority of the Bayside units; this includes BSI,
Inc., to which Catalano is President. Therefore, the Unit
Owners contend that Catalano has the enforceable or
transferable right to use the Bayside property for parking to
satisfy the parking requirements for each of the five units
that Declarant, either individually or through a related
entity, owns in the WHICA. Because of these interferences by
Declarant, the Unit Owners contend that their units are
unmarketable and its value has been materially impacted.
to the Unit Owners, the First Amended Declaration was the
only document available to them at the time they purchased
their respective units that identified the location of the
two parking spaces that were part of the sale of each unit at
WHIC. The Unit Owners also contend that neither the Public
Offering Statement nor the First Amended Declaration made any
mention of the Bayside property as having any connection to
the sale of the Unit Owners' respective units with regard
to parking. Therefore, the Unit Owners argue that they
purchased their respective units based on the understanding
that they were also purchasing a recognizable and
transferable property interest in two parking spaces on the
WHIC property. See James Vallides Aff. (Vallides
Aff.), JVLV, LLC Aff. (JVLV Aff.), Sorgenfrei LLC Aff.
(Sorgenfrei Aff.), Sally Merry Aff. (Merry Aff.), and Howard
Haronian, M.D. Aff. (Haronian Aff.) (collectively, Unit
Owners' Affs.) ¶¶ 5, 8. Had Declarant stated
that the units were not being sold with legal, transferable
interests in two parking spaces, the Unit Owners maintain
they would not have purchased their units. Id.
response, according to Plaintiffs, the constraints on the
WHIC property with respect to parking are an undisputed fact
known to all the Unit Owners prior to their acquisition of
the respective condominium units. Consequently, a portion of
the parking spaces used by the Unit Owners is located on the
WHIC property, while another portion of the parking spaces is
on the Bayside property. Plaintiffs further argue that the
Cross Easement was recorded as a perpetual easement in the
Town of Westerly Land Evidence Records, and the condominium
documents that the Unit Owners received were subject to the
Cross Easement. See Catalano Aff. ¶ 12, Oct.
on the interpretation of the Cross Easement, this Court finds
in favor of the Unit Owners and declares that the Cross
Easement does not grant the Unit Owners or anyone affiliated
with the Unit Owners the right to park on the Bayside
property. This Court first acknowledges that the Unit Owners
are not contesting the Cross Easement's validity;
therefore, the Cross Easement is valid and binding on the
WHIC and Bayside properties. This Court thus turns to the
scope of rights provided for in the Cross Easement. "In
Rhode Island, 'to create an easement by express grant,
there must be a writing containing plain and direct language
evincing the grantor's intent to create a right in the
nature of an easement rather than a license.'"
Plainfield Pike Dev., LLC v. Victor Anthony Props.,
Inc., 160 A.3d 995, 1002 (R.I. 2017) (citing Kinder
v. Westcott, 107 A.3d 321, 325 (R.I. 2015)).
"'Although a plaintiff in a civil action is
ordinarily required to prove his or her case by only a
preponderance of the evidence, a plaintiff seeking to prove
an easement must instead overcome a higher clear and
convincing standard[.]'" Kinder, 107 A.3d
at 325 (quoting Pelletier v. Laureanno, 46 A.3d 28,
35 (R.I. 2012)) (internal quotation marks omitted).
"When interpreting an instrument that purportedly