Paul R. Boisse v. Joseph R. Miller, Jr. d/b/a Joseph Miller Construction ( 2022 )


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  • February 1, 2022
    Supreme Court
    No. 2020-78-Appeal.
    (WC 03-281)
    Paul R. Boisse et al.           :
    v.                   :
    Joseph R. Miller, Jr. d/b/a Joseph     :
    Miller Construction et al.
    NOTICE: This opinion is subject to formal revision
    before publication in the Rhode Island Reporter. Readers
    are requested to notify the Opinion Analyst, Supreme
    Court of Rhode Island, 250 Benefit Street, Providence,
    Rhode Island 02903, at Telephone (401) 222-3258 or
    Email:      opinionanalyst@courts.ri.gov,     of     any
    typographical or other formal errors in order that
    corrections may be made before the opinion is published.
    Supreme Court
    No. 2020-78-Appeal.
    (WC 03-281)
    Paul R. Boisse et al.           :
    v.                    :
    Joseph R. Miller, Jr. d/b/a Joseph    :
    Miller Construction et al.
    Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.
    OPINION
    Justice Goldberg, for the Court. This case came before the Supreme
    Court on November 3, 2021, pursuant to an order directing the parties to appear
    and show cause why the issues raised in this appeal should not be summarily
    decided. The defendants, Joseph R. Miller Jr. d/b/a Joseph Miller Construction
    (Joseph) and Lynne N. Miller (Lynne) (collectively defendants), appeal pro se
    from a Superior Court judgment in favor of the plaintiffs, Paul R. Boisse and
    Michele C. Boisse (the Boisses or plaintiffs), granting the plaintiffs’ claims against
    Lynne and Joseph, and also in favor of the third-party defendant, Assurance
    Company of America (Assurance), denying Joseph’s third-party claim for
    -1-
    indemnification.1 After considering the parties’ written and oral submissions, we
    conclude that cause has not been shown and proceed to decide the appeal at this
    time. For the reasons set forth herein, we affirm the judgment of the Superior
    Court.
    Facts and Travel
    This controversy arose from the sale of real property in South Kingstown,
    Rhode Island, including a lot and a newly constructed home, which, it was later
    revealed, encroached upon an adjacent lot containing a utility easement. In 1998
    Lynne sold the Boisses Lot 15 in the Pleasant Hills subdivision, along with all
    buildings and improvements (the property or Lot 15). Four years later, the Boisses
    were notified by National Grid that their house, deck, and well encroached on the
    company’s easement.
    The record discloses that Lynne purchased Lot 15 in early 1998 through a
    limited power of attorney in favor of her then ex-husband, Joseph, who intended to
    build a residential home on the lot for sale. Joseph took the lead on construction,
    and, according to certain site plans, he positioned the property for the excavation
    and construction of the house, its well, and the driveway. Joseph also directed the
    1
    We refer to the defendants by their first names for the sake of clarity because they
    share the same surname. We intend no disrespect by doing so. Additionally, while
    Pleasant Hill Development, Ltd.; Mark L. Hawkins; Thomas A. Champlin; and
    Assurance Company of America were also named defendants in plaintiffs’ second
    amended complaint filed in the Superior Court, Lynne and Joseph are the only
    defendants who have appealed.
    -2-
    contractors on where to construct the site improvements, which resulted in a
    twenty-foot encroachment upon the adjacent lot.
    In 2003 the Boisses filed suit asserting various claims, and Joseph, by and
    through counsel, filed a third-party complaint for indemnification against his
    insurance company, Assurance, which was later summarily dismissed.2
    After a bench trial, the trial justice determined that Lynne was liable for
    breach of the warranty deed conveying the property to plaintiffs by failing to
    convey good and marketable title to the property. The trial justice also found that
    Joseph had knowledge of the encroachment, yet had misrepresented the property
    line and failed to disclose the encroachment to the Boisses.3 As a result, the trial
    justice determined that Joseph was liable for fraud, misrepresentation, and
    wrongful concealment of a material fact, and that these misrepresentations and
    omissions constituted a violation of the Rhode Island Deceptive Trade Practices
    Act, chapter 13.1 of title 6 of the general laws.
    2
    During the pendency of this action, Joseph filed for bankruptcy, the discharge of
    which effectively settled the claim of negligence against him. Accordingly, Joseph
    and Assurance filed cross-motions for summary judgment on his claim for
    indemnification. The Superior Court granted Joseph’s motion with respect to the
    claim of negligence; and, having found that only intentional tort claims survived
    and that his insurance policy did not protect him against intentional acts, the
    Superior Court summarily dismissed Joseph’s indemnification claim.
    3
    Based on the record before the Court, the site plans showed the proposed location
    of a house, driveway, and well within the contours of Lot 15.
    -3-
    Judgment entered in favor of plaintiffs and against Joseph and Lynne in the
    amount of $178,891.46, and in favor of Assurance on Joseph’s third-party claim.
    Joseph and Lynne timely appealed to this Court and have raised several claims,
    some of which are not clearly articulated.        On appeal, they argue that (1)
    Assurance sold Joseph a fraudulent insurance policy and should be held
    accountable; (2) a codefendant was allowed to amend an answer years after
    initiation of the action “under his company name” and had “these papers sealed by
    the court”; (3) the trial justice found defendants liable “in a revised case[,]” which
    they were unable to defend themselves against; and (4) Lynne’s attorney failed to
    inform her that she was found liable in 20114 and that judgment entered against her
    for damages in 2019.5
    Standard of Review
    “A judgment in a nonjury case will be reversed on appeal when it can be
    shown that the trial justice misapplied the law, misconceived or overlooked
    material evidence or made factual findings that were clearly wrong.” Lamarque v.
    Centreville Savings Bank, 
    22 A.3d 1136
    , 1139-40 (R.I. 2011) (quoting Cathay
    4
    There was a bifurcated bench trial addressing liability (tried in late 2011) and
    damages (tried in late 2019). Joseph and Lynne were represented by counsel
    throughout all proceedings in the Superior Court.
    5
    We have endeavored to articulate and set forth defendants’ arguments from their
    handwritten statement submitted to this Court on appeal pursuant to Article I, Rule
    12A of the Supreme Court Rules of Appellate Procedure and to clarify the
    substance of their arguments at oral argument.
    -4-
    Cathay, Inc. v. Vindalu, LLC, 
    962 A.2d 740
    , 745 (R.I. 2009)). Upon review, “we
    accord [the factual] findings [of a trial justice sitting without a jury] great
    deference” and consider questions of law de novo. Id. at 1140. Additionally,
    according to this Court’s longstanding raise-or-waive rule, “a litigant cannot raise
    an objection or advance a new theory on appeal if it was not raised before the trial
    court.” Cusick v. Cusick, 
    210 A.3d 1199
    , 1203 (R.I. 2019) (quoting Rohena v. City
    of Providence, 
    154 A.3d 935
    , 938 (R.I. 2017)).
    Analysis
    On appeal, defendants first argue that, in a separate and unrelated case,
    Assurance was found liable for selling Joseph a fraudulent policy and did not
    disclose this to the Superior Court. However, the issue of Assurance’s liability in
    another case was not raised before the trial justice. To the extent that defendants
    believed that this other case was of any moment to this controversy, they were
    required to first raise this issue in the Superior Court. By virtue of their having
    failed to do so, the trial justice was deprived of an opportunity to consider this
    argument, which constitutes waiver by defendants.
    In addition, defendants assert that a codefendant, Mark Hawkins, was
    “allowed to amend an answer” years after initiation of the action and had “these
    papers sealed by the court.” The defendants first raised this issue in their statement
    filed pursuant to Article I, Rule 12A of the Supreme Court Rules of Appellate
    -5-
    Procedure and discussed papers that were allegedly “sealed by the court[,]” and at
    oral argument, they alluded to a “secret meeting” that occurred between some of
    the parties and the court, to their exclusion. Specifically, based on their later
    examination of the docket, defendants take issue with events that occurred on
    December 17, 2007; July 14, 2011; and July 18, 2011.
    However, the docket discloses only ordinary trial preparation and
    procedures, including that (1) on December 17, 2007, a motion for leave to file an
    amended answer, filed by counsel for Joseph, was granted after a hearing; (2) on
    July 14, 2011, Hawkins, together with Lynne—a party to this appeal—and a third-
    party defendant, filed an answer to the Boisses’ “Revised Second Amended
    Complaint” and certified that a true copy was mailed to counsel for Joseph; (3) on
    July 18, 2011, trial exhibits were filed in the clerk’s office and were available to all
    parties, following an appearance by the parties for trial, at which exhibits were
    marked and put on the record and the trial was continued pending settlement
    discussions; and (4) on that same date, Assurance filed an answer to the Boisses’
    revised second amended complaint. There is no suggestion in the record that
    anything occurred in camera or that documents were sealed. Furthermore, this
    argument was not raised in the Superior Court, and there is nothing in the record
    before this Court that indicates that defendants objected to any amended pleading.
    Thus, the issue has been waived.
    -6-
    The defendants also contend that the trial justice found them liable “[i]n a
    revised case” against which they were purportedly not allowed to defend
    themselves. As there is no reference in the trial justice’s decision to a “revised
    case[,]” we can only assume that defendants take issue with the Boisses’ “Revised
    Second Amended Complaint” filed on April 21, 2011.6 The defendants did not
    object to the Boisses’ motion to amend or to the filing of the revised second
    amended complaint. Thus, this issue has also been waived.
    Finally, in their statement filed pursuant to Article I, Rule 12A, defendants
    aver that Lynne’s attorney did not notify her of the case outcome. On appeal from
    a judgment following a bench trial, this Court reviews preserved errors of the
    Superior Court, not of counsel when such a claim has not first been properly
    addressed in the trial court. See Cruz v. Town of North Providence, 
    833 A.2d 1237
    ,
    1240 n.1 (R.I. 2003) (declining to entertain claims raised for the first time on
    appeal); see also Super. R. Civ. P. 3 and Super. R. Civ. P. 8(a) (stating that a civil
    action is commenced by filing a complaint setting forth the claim for relief). Thus,
    this issue is not properly before this Court, and we decline to address it.
    6
    According to the record, in late 2010, the Boisses added Assurance and Zurich
    America Insurance Co. (Zurich) as defendants in a second amended complaint.
    Their revised second amended complaint removed Zurich as a defendant.
    -7-
    Conclusion
    For the foregoing reasons, we affirm the judgment of the Superior Court.
    The record in this case may be remanded to the Superior Court.
    -8-
    STATE OF RHODE ISLAND
    SUPREME COURT – CLERK’S OFFICE
    Licht Judicial Complex
    250 Benefit Street
    Providence, RI 02903
    OPINION COVER SHEET
    Paul R. Boisse, et al. v. Joseph R. Miller, Jr. d/b/a
    Title of Case
    Joseph Miller Construction et al.
    No. 2020-78-Appeal.
    Case Number
    (WC 03-281)
    Date Opinion Filed                   February 1, 2022
    Suttell, C.J., Goldberg, Robinson, Lynch Prata, and
    Justices
    Long, JJ.
    Written By                           Associate Justice Maureen McKenna Goldberg
    Source of Appeal                     Washington County Superior Court
    Judicial Officer from Lower Court    Associate Justice Sarah Taft-Carter
    For Plaintiffs:
    Francis S. Holbrook II, Esq.
    Turner C. Scott, Esq.
    For Defendants:
    Attorney(s) on Appeal
    Daniel F. Sullivan, Esq.
    Dana M. Horton, Esq.
    Joseph R. Miller, Jr., Pro Se
    Lynne N. Miller, Pro Se
    SU-CMS-02A (revised June 2020)