Coscina v. DiPetrillo

          Providence County Superior Court Associate Justice Richard A. Licht (PC 14-148)

          For Plaintiffs: Nicole M. Labonte, Esq. Richard E. Palumbo, Jr., Esq.

          For Defendants: Dennis T. Grieco II, Esq. Michael J. Lepizzera, Jr., Esq. Matthew J. Libby, Esq.

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

          OPINION

          MAUREEN MCKENNA GOLDBERG ASSOCIATE JUSTICE

         This case came before the Supreme Court on March 6, 2018, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not be summarily decided. The defendants, Craig J. DiPetrillo and Rebecca M. DiPetrillo (defendants), appeal from a Superior Court judgment granting summary judgment in favor of the plaintiffs, William Coscina and Cheryl L. Bailey Coscina (plaintiffs), on count one of the plaintiffs' complaint, sounding in adverse possession. After hearing the arguments of counsel and examining the memoranda submitted by the parties, we are of the opinion that cause has not been shown and that this case should be decided without further briefing or argument. We vacate the judgment of the Superior Court.

         Facts and Travel

         The factual and procedural history of the case at bar is perplexing and unsettled. The plaintiffs own property located at 100 Paris Irons Road in Glocester (the Coscina property), and defendants own the abutting property located at 86 Paris Irons Road (the DiPetrillo property). This appeal arises out of a boundary dispute between the parties with respect to two tracts of land known as "Cheryl's Front Pasture" and "Cheryl's Back Pasture." Although both tracts are part of the DiPetrillo property, plaintiffs claim that they used both of these tracts as their own property for more than thirty-six years. The complaint alleged that Cheryl began using the front pasture and back pasture soon after she purchased the property in 1979, and that William, Cheryl's husband, began using the tracts in 2008.^[1] With respect to the front pasture, plaintiffs claim that Cheryl used this area to keep farm animals and that her children rode all-terrain vehicles (ATVs) in that area as well. As to the back pasture, plaintiffs allege that Cheryl "re establish[ed] a neglected overgrown pasture by cutting saplings and small trees, clearing brush and continually mowing the pasture * * *." The plaintiffs' complaint further alleged that plaintiffs installed and maintained six-foot metal posts along the boundary line between Cheryl's Back Pasture and the DiPetrillo property, and maintained a stone wall along the boundary line of Cheryl's Front Pasture and the DiPetrillo property. The defendants purchased the 86 Paris Irons Road property in October 2013.

         On February 4, 2014, plaintiffs filed a four-count first amended complaint. In count one, plaintiffs requested that they be adjudged the rightful owners of Cheryl's Front Pasture and Cheryl's Back Pasture by virtue of adverse possession; they alleged that Cheryl used both tracts for a period in excess of ten years, and that their use of the tracts was actual, open, notorious, hostile, continuous, exclusive, and under a claim of right. In counts two and three, plaintiffs sought injunctive relief and declaratory relief, respectively. In count four, plaintiffs alleged that the stone wall that encloses Cheryl's Front Pasture has been acknowledged as the boundary line between the parties' properties for a period in excess of ten years. In their answer to plaintiffs' complaint, defendants denied the allegations and filed a counterclaim seeking to quiet title with respect to the areas in dispute.

         On May 22, 2015, plaintiffs moved for summary judgment on all four counts of the complaint and on defendants' counterclaim. In support of their motion, plaintiffs submitted affidavits, maps, and photographic evidence of the property.^[2] Appended to each of the nineteen affidavits was a copy of a land survey similar to the land survey attached to plaintiffs' complaint, but with additional handwritten notes identifying the front and back pastures, a horse enclosure, and woods to the west of the back pasture. The defendants filed an objection to plaintiffs' motion for summary judgment on the basis of alleged inconsistencies with respect to the boundaries of the areas in dispute. Specifically, defendants claimed that the area demarcated as Cheryl's Front Pasture in the affidavits was different from the area that had been identified as Cheryl's Front Pasture in a demand letter that plaintiffs sent to defendants before this action was filed. The defendants also contended that plaintiffs had changed their allegations regarding the stone wall boundary divider. The defendants also argued that the "form" style affidavits submitted by plaintiffs contained conclusions of law and were simply "boilerplate." Finally, defendants averred that plaintiffs failed to provide an affidavit from a civil engineer or land surveyor with respect to the boundaries of the claimed tracts. Counsel for plaintiffs responded to defendants' objection by filing her own affidavit declaring that she had prepared the handwritten notes on the copy of the land survey attached to the affidavits in support of plaintiffs' motion for summary judgment.

         A hearing on plaintiffs' motion for summary judgment was held on July 14, 2015. The hearing justice noted that a metes and bounds description of Cheryl's Back Pasture was not set forth on the survey that was attached to the complaint, and he questioned how a judgment for adverse possession could be entered without a metes and bounds description of the back pasture. The defendants agreed with the hearing justice's concern, arguing that a material issue of fact existed because the survey that plaintiffs submitted did not contain a metes and bounds description of the back pasture and because the boundaries of the contested areas kept changing:

"[COUNSEL FOR DEFENDANTS]: But in each of the surveys or self-purported surveys that have been presented, that area changes. In fact, at some point it's straight down. At some point it's curved. There is about three or four different plot plans that have been introduced that differentiate that whole side yard, and it's the contention of the defendants that they did use some of it. They may have used some of it but they're claiming more and more of that and each time we come or get documentation regarding it, that side pasture or back pasture continues to change and that's been the issue on the dimensions and the property lines itself."

         Nonetheless, the hearing justice granted plaintiffs' motion for summary judgment solely as to the adverse possession count. Although the hearing justice found no genuine issue of material fact as to whether plaintiffs had established ownership by adverse possession, he was still troubled by the vagueness of the purported boundary line:

"So the [c]ourt finds there is no genuine issue of material fact as to whether or not there has been adverse possession of the D'Petrillos' property. The [c]ourt, however, does believe there is an issue of fact as to what is the actual boundary line for purposes of preparing a judgment of [metes] and bounds on the back line. I believe it's been explained there that it goes to the woods so the [c]ourt is going to grant-it's not quite liability in damages because there are no damages, ...