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Sandy Point Farms, Inc. v. Sandy Point Village, LLC

Supreme Court of Rhode Island

January 29, 2019

Sandy Point Farms, Inc.
v.
Sandy Point Village, LLC, et al.
v.
Sandy Point Farms Condominiums, LLC, et al.

          Newport County Superior Court (NC 05-320) Associate Justice Brian Van Couyghen

          For Plaintiff: Jeffrey S. Brenner, Esq.

          For Defendants: Mark P. Dolan, Jr., Esq. Mark P. Dolan, Esq. Donald J. Maroney, Esq. Robert J. Quigley, Esq.

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

          OPINION

          PAUL A. SUTTELL CHIEF JUSTICE

         The plaintiff, Sandy Point Farms, Inc. (SPF or plaintiff), filed a petition for writ of certiorari seeking review of a Superior Court order denying its motion for a protective order concerning the deposition of Lawrence A. Rainey (Rainey). We granted the petition on December 4, 2017. Before this Court, the plaintiff contends that, pursuant to Rule 26(b)(4)(B) of the Superior Court Rules of Civil Procedure, Rainey, as a nontestifying expert, may not be deposed absent exceptional circumstances. This case came before the Supreme Court pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not be summarily decided. After considering the parties' written and oral submissions and reviewing the record, we conclude that cause has not been shown and that this case may be decided without further briefing or argument. For the reasons set forth in this opinion, we quash the order of the Superior Court.

         I Facts and Travel

         This matter arises from a long-simmering dispute between plaintiff and the defendants, Sandy Point Village, LLC; Kurt Poulton (Poulton); and Robert J. Kielbasa (Kielbasa) (collectively SPV or defendants), plaintiff's neighboring property owners. The plaintiff alleges that it has suffered significant harm as a result of defendants' construction and maintenance of drains directing surface water, waste, and sediment onto plaintiff's Portsmouth property (the property). The plaintiff filed this action in 2005 against Sandy Point Village, LLC, alleging trespass and nuisance, and it amended its complaint in 2010 to include a claim for negligence and to add Poulton and Kielbasa as defendants.[1] The parties have since spent years conducting discovery.

         In the course of discovery, plaintiff retained Peter M. Scotti & Associates to produce an appraisal report for the property. Peter Scotti (Scotti) prepared and signed a "Self-Contained Appraisal Report" for Ronald Lepes, President of SPF (Lepes), dated May 15, 2014 (the appraisal report). On May 20, 2014, in response to interrogatories propounded by SPV, plaintiff gave notice of its intent to call Scotti to testify as an expert witness at trial, and it additionally provided a copy of the appraisal report. It was noted in the appraisal report that a second appraiser, Rainey, "provided significant assistance to [Scotti] in the preparation of [the] report." At his deposition, Scotti confirmed that he had employed Rainey as an independent contractor for over ten years, and that he worked with Rainey on the appraisal of the property, specifically regarding the research as to comparable sales. After learning this information, defendants sought to depose Rainey.

         On January 20, 2017, plaintiff filed a motion for a protective order concerning Rainey's proposed deposition, arguing that Rainey was a nontestifying expert, and, thus, defendants could not depose him absent a showing of "exceptional circumstances" pursuant to Rule 26(b)(4)(B). The defendants filed an objection to plaintiff's motion, contending that, because Rainey "participate[d] in researching all or most of the comparable real estate market values and presumably drafted the analysis here * * * [his] deposition testimony would be relevant * * *." At the February 6, 2017 hearing on plaintiff's motion, defendants asserted that they were also seeking to depose Rainey to discover the nature of Rainey's relationship with Lepes. The defendants argued that this information would be relevant to determine if that relationship should have been disclosed in the appraisal report, pursuant to the Uniform Standards for Professional Appraisers of Property.[2]

         At the conclusion of the hearing, the hearing justice denied plaintiff's motion for a protective order. The hearing justice noted, "the general proposition is that experts that aren't going to testify but have been retained cannot be deposed, but this is a little bit of a blur from your traditional situation * * * which can be done under extraordinary circumstances." The hearing justice further explained his reasoning for denying plaintiff's motion, stating:

"I do not think that this is a clear expert situation that was not hired to provide testimony because it seems as if the information presented by Mr. Rainey was considered by Mr. Scotti in formulating his opinion. It seems like they worked together on it. It's not as clear as the traditional situation where an expert is retained for just consultation purposes and will not testify. So because I believe, in my humble opinion, although this could go, I guess, either way, but in my humble opinion the foundation for Mr. Scotti's testimony was some of the information prepared by Mr. Rainey and I think it is appropriate to depose him to find out the basis, what information he presented and the basis of the information he presented, and I see it as part of the opinion for the testimony of the testimonial expert * * *."

         An order denying plaintiff's motion entered on February 21, 2017. On March 16, 2017, SPF filed a petition for writ of certiorari, which we granted on December 4, 2017.

         II ...


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