William Coscina et al.
Craig J. DiPetrillo et al.
Providence County Superior Court Associate Justice Richard A.
Licht (PC 14-148)
Plaintiffs: Nicole M. Labonte, Esq. Richard E. Palumbo, Jr.,
Defendants: Dennis T. Grieco II, Esq. Michael J. Lepizzera,
Jr., Esq. Matthew J. Libby, Esq.
Present: Suttell, C.J., Goldberg, Robinson, and Indeglia, JJ.
MAUREEN MCKENNA GOLDBERG ASSOCIATE JUSTICE
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.
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. 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.
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.
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. 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
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."
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, ...