Opinion
No. 2020-223-Appeal. WC 17-470
03-04-2022
Amber PRESTON v. TOWN OF HOPKINTON et al.
Gregory P. Massad, Esq., Kathleen M. Flynn, Esq., for Plaintiff. Per C. Vaage, Esq., James P. Marusak, Esq., Stephen J. Sypole, Esq., for Defendants.
Gregory P. Massad, Esq., Kathleen M. Flynn, Esq., for Plaintiff.
Per C. Vaage, Esq., James P. Marusak, Esq., Stephen J. Sypole, Esq., for Defendants.
ORDER
The plaintiff, Amber Preston (Ms. Preston or plaintiff), appeals from a final judgment of the Superior Court granting summary judgment and denying her cross-motion for summary judgment in favor of the defendants, the Town of Hopkinton; the Zoning Board of Review of the Town of Hopkinton (the zoning board); and Brian Rosso, in his capacity as Finance Director of the Town of Hopkinton (collectively the town or defendants). This case came before the Supreme Court 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’ written and oral submissions and reviewing the record, we conclude that cause has not been shown and that this appeal may be decided without further briefing or argument. For the reasons set forth herein, we dismiss the plaintiff's appeal.
This case stems from a land-use dispute involving Ms. Preston and her neighbors in the Town of Hopkinton; this Court described the details of that dispute in Preston v. Zoning Board of Review of Town of Hopkinton , 154 A.3d 465 (R.I. 2017), and now recites only the facts and procedural history that relate directly to this appeal. In 2012, Ms. Preston sought judicial review of a zoning board decision in Superior Court as an "aggrieved party" pursuant to G.L. 1956 § 45-24-69. After the Superior Court affirmed the zoning board's decision, Ms. Preston sought review of the Superior Court's decision by way of certiorari before this Court. We quashed the order of the Superior Court and remanded the case with directions for the Superior Court to remand the matter to the zoning board. Preston , 154 A.3d at 466. On remand, the zoning board vacated its decision.
Ms. Preston subsequently filed the instant action, seeking litigation expenses pursuant to G.L. 1956 chapter 92 of title 42, the Equal Access to Justice for Small Businesses and Individuals Act (the act). The Superior Court denied Ms. Preston relief under the act, and she filed a notice of appeal seeking review of the Superior Court's judgment granting the town's motion for summary judgment and denying her cross-motion for summary judgment.
We do not reach the merits of Ms. Preston's appeal because she has not properly invoked the jurisdiction of this Court. The act provides that state and municipal agencies shall reimburse litigation expenses incurred by a party in connection with certain substantially unjustified state or municipal actions. See generally §§ 42-92-2, 42-92-3. This Court in Tarbox v. Zoning Board of Review of Town of Jamestown , 142 A.3d 191 (R.I. 2016), "parsed [the] two separate avenues" for judicial review of an agency decision involving the act, § 42-92-3(b) and § 42-92-5. Tarbox , 142 A.3d at 199. In doing so, we explained that neither authorizes a direct appeal to this Court. Id. at 198. Rather, the correct procedure for obtaining review of a Superior Court judgment denying litigation expenses under the act is by petition for a writ of certiorari. Id. at 199.
General Laws 1956 § 42-92-3(b) authorizes a court reviewing "the underlying decision of the adversary adjudication" to award fees and expenses in accordance with the act.
Section 42-92-5 provides, in pertinent part, "[a]ny party dissatisfied with the fee determination by the adjudicatory officer may appeal to the court having jurisdiction to review the merits of the underlying decision of the agency adversary adjudication."
Because Ms. Preston filed a notice of appeal, rather than a petition for a writ of certiorari, the matter is not properly before us. Accordingly, we dismiss the plaintiff's appeal and remand the record to the Superior Court.
Entered as an order of this Court this 4th day of March, 2022.