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Pollak v. 217 Indian Avenue, LLC

Supreme Court of Rhode Island

December 17, 2019

Bruce Pollak
217 Indian Avenue, LLC, et al.

          Newport County Superior Court (NC 17-240) Associate Justice Brian Van Couyghen

          For Plaintiff: Thomas Connolly, Esq.

          For Defendants: Stephen J. MacGillivray, Esq.

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


          Gilbert V. Indeglia Associate Justice.

         The plaintiff, Bruce Pollak (plaintiff), appeals from the grant of summary judgment in favor of the defendants, 217 Indian Avenue, LLC, James Moore, and Jane Moore (defendants), as well as from the denial of his cross-motion for summary judgment. The matter was previously before the Court pursuant to an order directing the parties to show cause why the issues in the case should not be summarily decided. In an order dated January 7, 2019, the Court returned the case to the regular calendar for full argument. Pollak v. 217 Indian Avenue, LLC, 198 A.3d 531, 532 (R.I. 2019) (mem.). "In doing so, we specifically direct[ed] 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[, ]" as well as to address "other issues that they consider appropriate[.]" Id. The parties appeared before the Court on December 3, 2019, for oral argument. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.


         Facts and Travel

         Although the facts of this case were laid out in this Court's order assigning the case to the regular calendar for full argument, we reiterate them here. They are largely derived from plaintiff's amended verified complaint.[1]

         On December 18, 2015, defendants purchased residential property at 217 Indian Avenue, Portsmouth, Rhode Island, which 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). Paragraph three 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[.]" Paragraph four of the restrictions necessitates: "The location of any proposed two-story structure shall also be subject to approval of said committee." Under the restrictive covenants, a majority vote of the committee was required for such approval.[2]

         Throughout January and February 2017, defendants demolished a one-story home on their property and began new construction at that same location. 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 e-mail on April 10, 2017, complaining that defendants' construction violated the restrictions because defendants had failed to obtain the required approval. 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 requested a conference with plaintiff before plaintiff filed suit. Nevertheless, defendants continued construction.

         Thereafter, in June 2017, plaintiff filed a civil 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[.]"

         After 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.[3] The defendants then presented plaintiff with the approval, pursuant to the requirements of the restrictive covenants.

         On July 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 alleged defendants had breached, was satisfied and therefore plaintiff's claim was moot. The defendants emphasized that the remedy plaintiff sought would only be temporary, as defendants had already ...

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