Epic Enterprises LLC et al.
The Bard Group, LLC.
Newport County Superior Court (NC 16-487) Brian Van Couyghen
Plaintiffs: Turner C. Scott, Esq. Roland F. Chase, Esq.
Defendant: Michael J. Richards, Esq.
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and
MAUREEN MCKENNA GOLDBERG, JUSTICE.
case came before the Supreme Court on May 9, 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 defendant, The Bard Group, LLC (defendant),
appeals from a final judgment granting summary judgment in
favor of the plaintiffs, Epic Enterprises LLC, Donna R.
Morvillo, Kurt Rauschenbach, and Kristin Rauschenbach
(collectively plaintiffs). 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 affirm the judgment of the Superior Court.
dispute concerns a thirteen-unit condominium complex known as
"10 Brown & Howard Wharf Condominium" (the
condominium) located near Thames Street in Newport, Rhode
Island. The condominium was created by declaration dated
August 12, 2014, and recorded on August 29, 2014, in the
Newport land evidence records. The defendant owns nine of the
thirteen condominium units and is therefore the majority
owner with 70.8 percent of the voting share. The plaintiffs
own the remaining four units and have 29.2 percent of the
voting share. The original declaration permitted only
"Retail/Office, " "Office, " or
"Residential" uses in the condominium.
Specifically, Article 2.2(ff) expressly prohibited a
restaurant use: "NO commercial kitchens or the
preparation of or the service of food for consumption onsite
shall be allowed."
on December 23, 2016, defendant, as the majority-interest
holder, unilaterally adopted and recorded a "second
amendment" to the declaration that removed the language
in Article 2.2(ff) that prohibited commercial kitchens and
food service. In doing so, the second amendment expressly
included "Restaurant Use" as a new permitted use
relative to the units owned by defendant. The second
amendment, in relevant part, stated: "Notwithstanding
anything to the contrary contained herein or in this
Declaration, Units 103, 104, 105, 106 and 107 may have
commercial kitchens and be used for the purpose of Restaurant
Use." The defendant also applied to the Newport City
Council for a victualing license and to transfer a Class BV
alcoholic beverage license for a restaurant that it intended
to establish in its units.
plaintiffs, in opposition to the second amendment, filed this
declaratory judgment action in the Superior Court seeking a
declaration that the second amendment was invalid and that to
be valid, the adoption of the second amendment required
unanimous consent of all the owners pursuant to G.L. 1956
§ 34-36.1-2.17(d). The parties filed cross-motions for
summary judgment. The defendant argued that, because §
34-36.1-2.17(d) deals only with the restriction of uses, and
because the second amendment in this case did not restrict
the use or occupancy of any unit, the second amendment was
1, 2017, a hearing was held on the motions; the hearing
justice ruled that there were no genuine issues of material
fact in the case. The hearing justice acknowledged that the
original declaration expressly prohibited the use of
restaurants and that the second amendment changed that use to
specifically allow for restaurant service. The hearing
justice reviewed § 34-36.1-2.17(d) and concluded that
the statute was clear and unambiguous. The hearing justice
held that the statute required a change in use to be approved
by the unanimous consent of all unit owners. Accordingly, the
hearing justice granted plaintiffs' motion for summary
judgment and declared that the second amendment was invalid
because unanimous consent from all unit owners was required
to adopt the amendment and that no condominium units could be
converted into a restaurant and bar without the unanimous
consent of all unit owners. The defendant filed a timely
notice of appeal.
Court "review[s] a ruling on a motion for summary
judgment de novo." Pimentel v. Deutsche
Bank National Trust Co., 174 A.3d 740, 743 (R.I. 2017).
"We will affirm a [trial] court's [summary judgment]
decision only if, after reviewing the admissible evidence in
the light most favorable to the nonmoving party, we conclude
that no genuine issue of material fact exists and that the
moving party is entitled to judgment as a matter of
law." Newstone Development, LLC v. East Pacific,
LLC, 140 A.3d 100, 103 (R.I. 2016). A matter that hinges
on statutory interpretation is ripe for summary judgment.
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