Opinion
C. A. WM-2019-0510
09-30-2020
MARK STEELE and SUSAN STEELE, Plaintiffs, v. TOWN OF SOUTH KINGSTOWN, RHODE ISLAND, by and through its Finance Director, Zachary Saul;THE SOUTH KINGSTOWN TOWN COUNCIL, by and through its President, Abel G. Collins;PETER DIERAUF and DIANA LEE DIERAUF; and KEARSARGE SOLAR LLC, Defendants
For Plaintiff David M. Revens, Esq. John C. Revens, Jr., Esq. For Defendant Vincent A. Indeglia, Esq. Jaclyn A. Cotter, Esq.
For Plaintiff David M. Revens, Esq. John C. Revens, Jr., Esq.
For Defendant Vincent A. Indeglia, Esq. Jaclyn A. Cotter, Esq.
DECISION
TAFT-CARTER, J.
Before the Court for decision is the Defendant South Kingstown Town Council's motion to dismiss the Plaintiffs' Complaint and the Plaintiffs' objection to the motion. The Court held a remote hearing via WebEx on May 21, 2020.
I
Facts and Travel
Plaintiffs Mark and Susan Steele are residents of South Kingstown and own and reside on Lot 8 of the Kenyon Woods neighborhood. See Am. Compl. ¶ 1. Defendants Peter and Diana Lee Dierauf reside in Wakefield and own Lots 9 and 10 of the Kenyon Woods neighborhood. Id. ¶ 2. Lots 8, 9, and 10 abut each other. Id. ¶ 3. Originally, all lots were owned by Lillian F. Kenyon who conveyed by warranty deed all parcels of land to the Dieraufs on May 3, 1984. Id. ¶ 9. The Dieraufs subsequently recorded their deed in the South Kingstown Land Evidence Records on March 31, 1986. Id. ¶ 10. On June 30, 1995, the Dieraufs conveyed by warranty deed Lot 8 to the Steeles. Id. ¶ 12.
In 2018, the Dieraufs spoke with Defendant Kearsarge Solar LLC (Kearsarge) to install a commercial solar array system on Lot 10 to generate solar power for one or more municipalities. Id. ¶ 13. After some investigation, the Dieraufs realized that the proposed solar array would need to extend onto part of Lot 9. Id. ¶ 14. The Dieraufs requested to transfer part of Lot 9 to Lot 10 and to rezone the lots from "Residential Low Density (R80)" to "Government and Institutional (GI)." Id. ¶ 16.
Lot 9 is comprised of 9.84 acres and the proposed Administrative Subdivision would transfer 5.09 acres from Lot 9 to Lot 10, thus resulting in Lot 9 being comprised of only 4.75 acres.
The plan to rezone was conditionally approved by the Defendant South Kingstown Town Council (Town Council) on December 10, 2018, and the plan was subject to the Dieraufs completing an Administrative Subdivision transfer of part of Lot 9 to Lot 10. Id. ¶ 17. On July 12, 2019, the South Kingstown Planning Board (Planning Board) granted conditional development approval. Id. ¶ 19. On September 9, 2019, the Town Council subsequently approved the Dieraufs and Kearsarge's application to rezone the lots. Id. ¶ 20.
Following the Town Council's approval, on September 30, 2019, Kearsarge petitioned the South Kingstown Zoning Board of Review (Zoning Board) for a dimensional variance to install 9900 solar panels on Lot 10, requiring a variance from the thirty percent panel coverage limitation and expand it to forty-eight percent. Id. ¶ 23. On September 30, 2019, Plaintiffs filed an appeal from the Town Council decisions (both the December 10, 2018 and the September 9, 2019 decisions) pursuant to G.L 1956 §§ 45-5-16 and 45-24-71. The dimensional variance was later granted by the Zoning Board on December 18, 2019 but the Court, in a separate action (WC-2020- 0089), granted a Temporary Restraining Order to restrain Defendants from installing the solar panels.
At first, Plaintiffs filed a Complaint appealing both the Town Council's December 10, 2018 decision and the September 9, 2019 decision. The Complaint was not served on the Town until 149 days later, however, on February 26, 2020. Plaintiffs then filed a one-count Amended Complaint, where they seek to appeal only the Town Council's September 9, 2019 decision to grant spot zoning which violates the South Kingstown Comprehensive Community Plan Rules and Regulations. Id. ¶¶ 30-43.
II
Parties' Arguments
In its motion to dismiss, filed prior to the Amended Complaint, the Town Council argues that the Steeles failed to timely effectuate service of process on the Town Council within the 120-day period as prescribed by Super. R. Civ. P. 4(1) (Rule 4(1)). Therefore, the Town Council moves to dismiss under Super. R. Civ. P. 12(b)(5) (Rule 12(b)(5)). In addition, the Town Council argues that the Steeles failed to timely appeal the Town Council's December 10, 2018 zoning amendment within the statutorily-prescribed thirty-day period as required in § 45-24-71(a). Therefore, the Town Council moves to dismiss under Super. R. Civ. P. 12(b)(6) (Rule 12(b)(6)).
In their objection to the motion to dismiss, Plaintiffs first argue that the motion was filed before the First Amended Complaint and does not address the operative complaint. Second, the Plaintiffs address the untimely service of process by asserting that Rule 4(1) provides this Court with discretion to "direct that service be effected within a specified time." Thus, Plaintiffs argue that the Court may deem that service has been effected under the facts of this case. Third, Plaintiffs claim that the savings statute, G.L. 1956 § 9-1-22, would allow the Plaintiffs to refile the claim again if it were dismissed for insufficient process, and therefore, a dismissal would be futile and against the interests of judicial economy.
III
Standard of Review
Rule 12(b)(5)
Rule 12(b)(5) permits a trial justice to dismiss a civil matter for "[i]nsufficiency of service of process." Rule 4 defines what constitutes sufficient service. Rule 4(1) provides, in pertinent part:
"[i]f service of the summons, complaint, Language Assistance Notice, and all other required documents is not made upon a defendant within one hundred and twenty (120) days after the commencement of the action the court upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period."
On its face, Rule 4(1) allows for dismissal absent good cause for the untimely service. Id. "Rule 4(l) places the onus of showing good cause why service was not timely made squarely on the party on whose behalf such service was required." Gucfa v. King, 865 A.2d 328, 332 (R.I. 2005) (internal quotations omitted). A showing of prejudice is not required to sustain a dismissal for violation of Rule 4. Id. (citing Norcliffe v. Resnick, 694 A.2d 1210, 1211 (R.I. 1997)). Additionally, "rules relating to service of process are to be followed and construed strictly since jurisdiction of the court over the person of a defendant is dependent upon proper service having been made." Shannon v. Norman Block, Inc., 106 R.I. 124, 130, 256 A.2d 214, 218 (1969).
Rule 12(b)(6)
'"The sole function of a motion to dismiss is to test the sufficiency of the complaint. . ."' Palazzo v. Alves, 944 A.2d 144, 149 (R.I. 2008) (quoting R.I. Affiliate, ACLU, Inc. v. Bernasconi, 557 A.2d 1232, 1232 (R.I. 1989)). As our Supreme Court has stated, '"[t]he policy behind these liberal pleading rules is a simple one: cases in our system are not to be disposed of summarily on arcane or technical grounds."' Hendrick v. Hendrick, 755 A.2d 784, 791 (R.I. 2000) (quoting Haley v. Town of Lincoln, 611 A.2d 845, 848 (R.I. 1992)). In Rhode Island, "a Rule 12(b)(6) motion to dismiss is appropriate when it is clear beyond a reasonable doubt that the plaintiff would not be entitled to relief from the defendant under any set of facts that could be proven in support of the plaintiff's claim." Barrette v. Yakavonis, 966 A.2d 1231, 1234 (R.I. 2009) (internal quotations omitted). "But unless amendment could avail the plaintiff nothing, the order of dismissal should usually be with leave to amend." Robert B. Kent et al., Rhode Island Civil and Appellate Procedure, § 12:9.
In making its Rule 12(b)(6) determination, a court '"assumes the allegations contained in the complaint to be true and views the facts in the light most favorable to the plaintiffs."' Giuliano v. Pastina, 793 A.2d 1035, 1036 (R.I. 2002) (quoting Martin v. Howard, 784 A.2d 291, 297-98 (R.I. 2001)). The Court may not look to matters outside the pleadings on a motion to dismiss. Doing so would require that the Court convert the motion into a motion for summary judgment and apply its distinct standard of review. See Coia v. Stephano, 511 A.2d 980 (R.I. 1986).
IV
Analysis
Rule 12(b)(5)
Rule 4(1) requires that service of process be effectuated on a defendant within 120 days of the commencement of the action. Absent a showing of good cause, the court must dismiss the complaint for failure to timely serve. See Gucfa, 865 A.2d at 331-32 ("If good cause cannot be shown, Rule 4(l) requires dismissal, allowing the motion justice no discretion to do anything other than to dismiss the case without prejudice."). The Rhode Island Supreme Court has held that "[a] plaintiff's failure to effect service of process within that period without good reason for the delay causes the action to be dismissed." Norcliffe, 694 A.2d at 1212 (citing Rule 4(1)). If the plaintiff can show "good cause for the failure, the court shall extend the time for service for an appropriate period." Rule 4(1). In Ransom v. DaLomba, the Rhode Island Supreme Court held that the plaintiff failed to show good cause where there was an error on the original summons and the plaintiff's attorney failed to recognize it because the office secretary went on an unexpected medical leave. Ransom, 755 A.2d 840, 840 (R.I. 2000) (mem.) (service effectuated 151 days after the complaint was filed).
Here, the Steeles filed their complaint on September 30, 2019, but did not effectuate service of process on the Town Council until February 26, 2020, approximately 149 days later. The Plaintiffs have not stated the reason for the delayed service of process. On May 1, 2020, the Steeles, after retaining an attorney, moved to amend their Complaint. The Amended Complaint was filed after the Town Council's motion to dismiss. The Amended Complaint did not address the issues raised under Rule 4(1) in the Town Council's motion to dismiss (i.e. the untimeliness of service).
Plaintiffs argue that this Court should refrain from dismissing this action under Rule 4(1) because of the "savings statute," § 9-1-22. It is true that "[i]f an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff . . . may commence a new action upon the same claim within one year after the termination." See Furtado v. Laferriere, 839 A.2d 533, 537 (R.I. 2004). It is also true that a dismissal pursuant to Rule 4(1) will toll the statute of limitations for a claim, as it would in this case. Id. at 537-38. However, this situation applies when the action has already been dismissed. This Court has not found a situation where the fact that the action can be saved under the "savings statue" constitutes a good cause reason for an action not to be dismissed under Rule 4(1). Therefore, due to the strict requirements of Rule 4(1), this Court must grant the Town Council's Rule 12(b)(5) motion because Plaintiffs have failed to show good cause for the delay in service. See Gucfa, 865 A.2d at 331-32.
Rule 12(b)(6)
Section 45-24-71(a) states, in pertinent part: "An appeal of an enactment of or an amendment to a zoning ordinance may be taken to the superior court for the county in which the municipality is situated by filing a complaint within thirty (30) days after the enactment or amendment has become effective." (Emphasis added.) An amendment to a zoning map is "tantamount, for the purpose of judicial review," to an amendment of a zoning ordinance under the statute. DeLucia v. Town of Jamestown, 107 R.I. 179, 185, 265 A.2d 636, 638 (1970).
The Rhode Island Supreme Court has held that the "time period [for § 45-24-71(a)] begins to run at the time the plaintiff 'becomes chargeable with knowledge of the decision from which he seeks to appeal.'" Sousa v. Town of Coventry, 774 A.2d 812, 815 (R.I. 2001) (quoting Hardy v. Zoning Board of Review of Coventry, 113 R.I. 375, 379, 321 A.2d 289, 291 (1974)). Further, '"[s]tatutes prescribing the time and the procedure to be followed by a litigant attempting to secure appellate review are to be strictly construed."' Id. at 814 (quoting Seibert v. Clark, 619 A.2d 1108, 1111 (R.I. 1993)). In Sousa, the plaintiff's appeal from a town council decision was "time-barred" because the plaintiff did not file the appeal until four months after the town council amended the zoning ordinance. Sousa, 774 A.2d at 815.
Further, "Rule 15(a) permits a party to amend a pleading 'once as a matter of course' before the opposing party serves a responsive pleading, [and] . . . [t]he service by a defendant of a motion to dismiss the complaint . . . does not terminate the plaintiff's right to amend as of course, for a motion is not a responsive pleading. . ." See Barrette, 966 A.2d at 1235-36. However, the filing of an amended complaint would not automatically render a defendant's motion to dismiss moot. See Medeiros v. Cornwall, 911 A.2d 251 (R.I. 2006). Rather, the motion to amend the complaint may render the motion to dismiss moot if the amended complaint addresses issues raised in the motion to dismiss. Id. at 254 (holding that "the motion justice erred by not hearing the motion to amend before she ruled on the motion for judgment on the pleadings" because "[the] motion to amend may have rendered defendant's motion to dismiss on the pleadings moot").
Here, the Town Council is only asking this Court to dismiss the Plaintiffs' claims relating to the appeal from the December 10, 2018 Town Council decision, not from the September 9, 2019 Town Council decision. (Town Council Mem. at 6.) Under a strict reading of § 45-24-71(a), the appeal pertaining to the December 10, 2018 decision would be "time-barred" because the Plaintiffs' original Complaint appealing the December 10, 2018 decision was not filed until September 30, 2019, which is over nine months from the date the Plaintiffs became aware of the amendment to the zoning map. See Sousa, 774 A.2d at 814.
Moreover, Plaintiffs argue that as to this issue the Town Council's motion is "moot" because while the original Complaint (which was filed pro se) was appealing both the December 10, 2018 decision and the September 9, 2019 decision, their First Amended Complaint makes it clear that the Plaintiffs are only appealing the September 9, 2019 decision of the Town Council. (Pls.' Sur Reply at 6.) In fact, Plaintiffs admit that "the Steeles now seek only an appeal of the September 9, 2019 Town Council Decision (as well as any findings of fact and conditions of approval incorporated therein)." Id. Due to the Amended Complaint making clear that Plaintiffs' appeal is from the September 9, 2019 decision only, and the Town Council's motion to dismiss relates to the December 10, 2018 decision only, this filing of the Amended Complaint would render the Town Council's Rule 12(b)(6) motion moot. See Medeiros, 911 A.2d at 254.
V
Conclusion
Accordingly, this Court concludes that the Town Council's motion to dismiss is granted.