Newport County Superior Court (NC 17-240). Associate Justice
Brian Van Couyghen
Plaintiff: Thomas Connolly, Esq.
Defendants: Stephen J. MacGillivray, Esq.
Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia,
matter came before the Supreme Court on December 4, 2018,
pursuant to an order directing the parties to appear and show
cause why the issues raised should not be summarily decided.
After considering the parties' arguments set forth in
their memoranda and at oral argument, we are convinced that
cause has been shown. Thus, it is our opinion that further
argument and briefing will be required to decide this matter.
plaintiff, Bruce Pollak (Pollak or plaintiff), appeals from a
Newport County Superior Court hearing justice's entry of
summary judgment in favor of the defendants, 217 Indian
Avenue, LLC, James Moore, and Jane Moore (defendants), and
his denial of plaintiff's motion for summary judgment.
The pertinent facts are as follows.
December 18, 2015, defendants purchased residential property
at 217 Indian Avenue, Portsmouth, Rhode Island, which
immediately abuts plaintiff's property. Both lots were
created in 1960 subject to the same subdivision plan, which
included certain restrictive covenants (the restrictive
covenants or the restrictions). One of the restrictions
provides: "No building or buildings shall be erected,
placed or altered on any lot until construction plans and
specifications, and the plans showing the location of the
structure have been approved in writing by a committee * *
January and February 2017, defendants demolished a one-story
home on their property and began new construction. In the
beginning of April 2017, plaintiff discovered that defendants
were building what he categorized as a "three-story
structure." The plaintiff contacted defendants via email
on April 10, 2017, complaining that defendants'
construction violated the restrictions because defendants
failed to obtain the approval required by the restrictive
covenants. On April 13, 2017, plaintiff, through counsel,
demanded that defendants cease and desist all construction.
The defendants responded, arguing that the restrictive
covenants were void, and they requested a conference with
plaintiff before plaintiff filed suit. Nevertheless,
defendants continued construction.
in June 2017, plaintiff filed an action in Newport County
Superior Court seeking "a temporary restraining order,
preliminary injunction, permanent injunction, damages and
other relief in connection with his claims for violation of
restrictive covenants and breach of the duty of quiet
enjoyment, arising out of [d]efendants' wrongful
construction of a multi-story structure[.]"
plaintiff commenced suit, defendants, on June 15 and 16,
2017, secured the approval for the already-commenced
construction on their property from the owners of eight of
the nine subdivision lots, plaintiff being the sole
exception. The defendants then presented plaintiff with the
approval, pursuant to the requirements of the restrictive
6, 2017, defendants moved for summary judgment pursuant to
Rule 56 of the Superior Court Rules of Civil Procedure,
arguing that the procedural approval requirement of the
restrictive covenants, which plaintiff had alleged defendants
breached, were satisfied and therefore plaintiff's claim
was accordingly moot. The defendants emphasized that the
remedy plaintiff sought would only be temporary, as
defendants had already obtained approval from a majority of
the other lot owners, and defendants could therefore rebuild
the same structure again.
plaintiff objected to defendants' motion for summary
judgment and filed a cross-motion for summary judgment. The
plaintiff argued that defendants clearly violated the
restrictive covenants in failing to get approval before they
began construction, and further averred that the restrictive
covenants do not allow for retroactive approval. Furthermore,
plaintiff urged the Superior Court to adopt, for the first
time, the Restatement (Third) of Property:
Servitudes §§ 6:10 and 6:13, which
address, respectively, committee members' power to amend
restrictions and whether the committee owed plaintiff a duty
of good faith and fair dealing.
September 5, 2017, the hearing justice heard the parties'
arguments on their cross-motions for summary judgment and
issued a bench decision. The hearing justice concluded, "it
would be absurd to grant injunctive relief in this case to
disassemble a house only to have [defendants] reconstruct it
after [they] already received approval." He reasoned
that the restrictions, when read as a whole, "appear to
deal with a fluid process where approval may be gained in the
middle of construction." The hearing justice explained
that the restrictions do not contain language that would
prohibit approval at any time from the beginning of
construction through its completion, and he accordingly
granted defendants' motion for summary judgment and
denied plaintiff's motion for summary judgment. Judgment
entered in favor of defendants; and, on October 12, 2017,
plaintiff filed his timely notice of appeal to this Court.
hearing arguments in this case, we deem it prudent to return
the case to the regular calendar for full briefing and
argument. In doing so, we specifically direct the parties to
brief the issue of whether there exists an express or implied
right to obtain retroactive approval of construction plans
and design specifications. The parties should address this