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.
OPINION
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.
I
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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