Opinion
C. A. PC-2016-3957
09-24-2020
H.V. COLLINS PROPERTIES, INC. Plaintiff, v. STATE OF RHODE ISLAND, by and through the DEPARTMENT OF TRANSPORTATION, and J.H. LYNCH & SONS, INC., Defendants.
For Plaintiff: Robert G. Flanders, Jr., Esq.; Timothy K. Baldwin, Esq.; Christopher N. Dawson, Esq. For Defendant: Renee M. Bevilacqua, Esq.; Maxford O. Foster, Esq.; Myles C. Beltram, Esq.; Paul A. Carnes, Esq.; William M. Dolan, III, Esq.; Daniel J. Procaccini, Esq.
For Plaintiff: Robert G. Flanders, Jr., Esq.; Timothy K. Baldwin, Esq.; Christopher N. Dawson, Esq.
For Defendant: Renee M. Bevilacqua, Esq.; Maxford O. Foster, Esq.; Myles C. Beltram, Esq.; Paul A. Carnes, Esq.; William M. Dolan, III, Esq.; Daniel J. Procaccini, Esq.
DECISION
SILVERSTEIN, J. (Ret.)
This matter is before the Court for decision with respect to three separate motions-specifically: (1) Defendant State of Rhode Island's motion to dismiss pursuant to the provisions of Superior Court Rules of Civil Procedure 19 for failure to join indispensable parties; (2) Plaintiff H.V. Collins Properties, Inc.'s (hereinafter "Collins") motion for leave to file second amended complaint pursuant to Superior Court Rules of Civil Procedure 15(a), 15(b) and 21; and (3) Defendant State of Rhode Island's motion for a stay pending Supreme Court review of its petition for certiorari pursuant to Superior Court Rules of Civil Procedure 16 and Rules 7(a) and 8 of the Supreme Court Rules of Appellate Procedure. In addition to the various motions and the memoranda which accompanied them, the Court has been benefited by additional memoranda from the parties including, but not limited to, memoranda of supplemental authority from each party following the remote video hearing on the motions conducted by the Court.
Factual Background
In August of 2015, Defendant exercised its eminent domain power and applied it in connection with the so-called "Blackstone River Bikeway" to acquire certain real property situated generally in juxtaposition to the westerly bank of the Seekonk River in the City of Providence (the "Real Property"). The State believed, as did the City of Providence, that the City owned the Real Property and the City accepted the State's offer of just compensation in connection with the taking in the amount of One Dollar.
Plaintiff, Collins, instituted this action on August 23, 2016 claiming that because it was the owner of the Real Property, together with associated riparian rights, that it was entitled to just compensation. Following extensive motion practice, this Court granted, pursuant to the provisions of Superior Court Rules of Civil Procedure 56(c), Collins' motion for partial summary judgment finding that (a) Collins was the owner of the Real Property together with the riparian rights thereto at the time of the taking; (b) that the State's construction of the Bike Path on the Real Property, without notice to or consent from Collins, constituted a taking; and (c) Collins was entitled to compensation to be determined in a subsequent proceeding (of course, the parties would be free to negotiate an amount mutually satisfactory or mutually unsatisfactory to them at any time). See this Court's Decision dated September 9, 2019 and Order thereon dated and entered on September 17, 2019.
The State reacted to the Decision and Order by filing, pursuant to Superior Court Rules of Civil Procedure 60(b), a motion for reconsideration which after appropriate briefing and following a hearing was denied by this Court. See Decision dated February 14, 2020 and Order thereon dated February 24, 2020.
The motions presently pending before the Court advanced by the State raise a number of issues.
State's Motion to Dismiss for Failure to Join Indispensable Parties
The State's motion to dismiss is based on its twelfth defense to Collins' Complaint, that is to say, the alleged failure by Collins to join indispensable parties. The State asserts that those indispensable parties are: (1) the City of Providence and (2) the Coastal Resources Management Council (CRMC).
When the eminent domain taking occurred, the State believed that the City of Providence was the owner of the parcel taken by it and concluded an arrangement with the City by the terms of which, (1) the City would be paid, and it was, One Dollar and (2) that the City would maintain the Bikeway over the Real Property. Whatever property rights, if any, had been held by the City as a result of that eminent domain taking passed to the State. Here, the instant proceeding seeks only appropriate compensation for the Real Property which the Court has found was owned by Collins. This finding followed extensive and hard-fought motion practice where the State claims to have acquired the Real Property from the owner-the City of Providence.
While G.L. 1956 § 37-7-3 provides certain circumstances pursuant to which a former owner may reacquire real property taken by condemnation, its present applicability is so speculative as to not effect the Court's determinations herein.
Here, the State asserts that by reason of its asserted twelfth defense to Collins' amended complaint, "Collins has been on notice [of additional persons needed for just adjudication]." Of course, the State itself was on notice of what it asserts to be the City's interest, an interest which it claims to have acquired. Despite the fact that the State made strenuous argument throughout the aforementioned motion practice predicated upon what it claims to have been its acquisition from the City of the City's interest in the real estate and despite the fact that the State could have sought to join the City and didn't, relying to some extent on our Supreme Court's opinion in Anderson v. Anderson, 109 R.I. 204, 283 A.2d 265 (1971), the State argues that its Rule 19 motion to dismiss may be raised at any time even if for the first time at the appellate level. Here, the issue was not first raised at the appellate level but rather at the inception of the case by the aforementioned twelfth defense asserted in the State's answer. Thereafter, it was not mentioned by either of the parties until the present motion and only asserted after extensive motion practice including without limitation Plaintiff's successful though hard-fought motion for partial summary judgment followed by the State's further hard-fought motion for reconsideration. This Court notes that in Anderson, 109 R.I. at 207, 283 A.2d at 267, the Court referring to Koshgarian v. Hawksley, 90 R.I. 293, 157 A.2d 663 (1960) stated, "if the circumstances so warranted, the omission of a party might be raised at the appellate level even though no such objection was made at the trial level." Here, for all the reasons stated, the circumstances do not warrant, and the State should be deemed to have waived its right to claim that the City should have been made a party. Obviously, here Collins makes no claim against the City. Its claims solely are with respect to its seeking just compensation from the State relative to the taking of the Real Property which this Court, through its ruling on Collins' partial summary judgment motion, has determined to have been owned by Collins.
The State further has urged upon the Court that the CRMC also is an indispensable party and should have been brought in to this proceeding. It is clear to the Court and was admitted during argument that CRMC is the statutory agent of the State, that the State as indicated above fully and vigorously participated in connection with the issues which the State now suggests should have been handled by CRMC. Further, the State admits that it was the principal and because of its full participation this Court holds that the principal's participation even in the absence of the agent of course binds the principal. Further, the Court notes that the claims being asserted by Collins for just compensation are directed not at CRMC but rather at the State.
The State's Argument Relative to Affidavits Supporting Partial Summary Judgment as Hearsay
The State argues for the first time that Collins was not entitled to partial summary judgment because the Collins affidavits upon which the Court relied in granting partial summary judgment contained hearsay and thus run afoul of Rule 56(e)'s requirement that affidavits must set forth "facts as would be admissible in evidence . . . ." The Court notes that the affidavits were neither objected to nor stricken from the record prior to the Court's ruling on the Rule 56(c) motion. The Court further notes that even during the hearing on reconsideration, the State raised no objection to the affidavits. Only after new counsel was engaged by the State long after the partial summary judgment issued was this objection made for the first time. Just as inadmissible evidence received at trial without objection result in a waiver of any objection, so too any present objection to the claimed hearsay is and should be deemed waived.
State's Motion for a Stay of Further Proceedings in the Superior Court
The State here has filed a petition in the Supreme Court seeking certiorari primarily directed at the partial summary judgment granted by the Court to Collins. In connection with that petition and in accordance both with the aforementioned Rules of Civil Procedure and Rules of Appellate Procedure, the State has moved this Court to stay further proceedings in this Court pending resolution of the petition. While substantial arguments have been advanced both by the State in support of the motion and by Collins in opposition thereto, this Court for the reason hereinafter set forth denies the relief requested by the State. The reason the Court does this is because it believes that the present posture of the case is, as argued by Collins, that the only thing left to be done at the Superior Court level is a short (Collins says one day) hearing on the magnitude of the just compensation to be awarded to Collins. If that hearing proceeds in a timely fashion, the whole case would be in order for appeal as a matter of right to the Supreme Court. This would, of course, obviate the possibility of piecemeal litigation. The avoidance of piecemeal litigation is a much-desired result. Further, this Court believes that neither party is disadvantaged by completing the case at this level so that if an ultimate review by the Supreme Court discloses error below, that error or those errors can be addressed in one new trial rather than in a possible series of piecemeal reviews by our Appellate Court. Accordingly, the motion for a stay hereby is denied.
Collins' Motion for Leave to File Second Amended Complaint
Collins seeks leave to file a second amended complaint. The State objects.
The proposed second amended complaint as to its factual allegations should be permitted as should Count I of the Complaint because they simply conform the Plaintiff's pleading to the evidence which has come before the Court in the course of the proceedings to date and which resulted in the partial summary judgment in favor of Collins hereinbefore mentioned.
The proposed second amendment further seeks to add a new Count II against a new Defendant, Peter Alviti, Jr., in his individual capacity as Director of the Rhode Island Department of Transportation. This cause of action under 42 U.S.C. § 1983 became cognizable in cases such as this which seek just compensation recently, as a result of the United States Supreme Court opinion in the case of Knick v. Township of Scott, Pennsylvania, 139 S.Ct. 2162 (2019). Prior to the Knick case, just compensation claims had to have been resolved before bringing a constitutional claim under the cited federal statute. Post Knick, that rule no longer pertains.
Liberality in dealing with proposed pleading amendments is favored under our practice. Harodite Industries, Inc. v. Warren Electric Corp., 24 A.3d 514, 531 (R.I. 2011). Here, the Knick case justifies the proposed addition of Count II and accordingly the Court grants Collins' motion.
Conclusion
For the reasons set forth herein, (a) the State's motion as to indispensable parties hereby is denied; (b) the State's belated objection to the affidavits as constituting hearsay is denied as having been waived; (c) Collins' motion for leave to file a second amended complaint is granted; (d) the State's motion for a stay is denied.
Prevailing counsel shall prepare an order consistent with the provisions hereof.