Mark Robar v. Albert Robar , 154 A.3d 947 ( 2017 )

Supreme Court
No. 2015-140-Appeal.
(W14-41A)
Mark Robar :
v. :
Albert Robar. :
ORDER
This matter came before the Supreme Court on January 26, 2017, pursuant to an order
directing the parties to appear and show cause why the issues raised in this appeal should not be
summarily decided.1 After examining the memoranda filed by the parties,2 we conclude that
cause has not been shown and we proceed to decide the appeal at this time. For the reasons set
forth herein, we conclude that subsequent events have rendered this appeal moot, and we
therefore decline to address its merits.
On July 1, 2014, in the Washington County Family Court, Mark Robar (plaintiff) filed a
complaint for protection from abuse from his father, Albert Robar (defendant). The court issued
a temporary order, and a trial was held on January 26, 2015, during which plaintiff alleged that
his father continuously stalked and harassed him and his wife, placing them in fear of harm.
Specifically, plaintiff testified that on June 30, 2014, he was parked in front of his home in his
truck, when he saw defendant walking by the residence, using a cell phone to record the
1
The pro se plaintiff was defaulted by order of this Court entered on September 2, 2015, for
failing to file a Rule 12A counter-statement in accordance with Article I, Rule 18A of the
Supreme Court Rules of Appellate Procedure. Thus, the Court shall proceed without argument
or briefing from plaintiff.
2
The defendant’s motion to rest on the memoranda and papers was granted by order of this
Court on January 20, 2017.
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encounter. The plaintiff’s wife testified that she has observed defendant in front of their home
on numerous occasions and that she has been followed by defendant, even after the temporary
restraining order was issued, in August 2014. She testified that she lives in constant fear of her
father-in-law. The defendant testified that he works approximately one-half mile from his son’s
residence and that, on June 30, 2014, he was “simply walking” when plaintiff yelled defamatory
expletives at him. The defendant testified that he held his cell phone in such a way as to create
the impression that he was recording his son’s outburst, in order to protect himself. The
defendant added that he has never approached his son or his daughter-in-law.
After considering the evidence presented, and noting that “[t]here is clearly a history
between father and son,” the Family Court justice determined that, although defendant may not
have recorded his son with the cellphone, the impression he made placed plaintiff in fear. The
Family Court justice also credited the daughter-in-law’s fear, stating, “[s]he is clearly afraid of
her father-in-law.” Accordingly, the Family Court justice issued an order of protection from
abuse that was effective until January 26, 2016. The defendant timely appealed the order,
claiming inter alia, that the Family Court justice’s findings were vague and irrelevant and that his
conduct did not satisfy the definition of domestic abuse pursuant to G.L. 1956 chapter 15 of
title 15.
We decline to address the merits of defendant’s appeal because the order expired in
January 2016, and therefore, the case is moot. See Hallsmith-Sysco Food Services, LLC v.
Marques, 970 A.2d 1211, 1213 (R.I. 2009) (“This Court has consistently held that a case is moot
if the original complaint raised a justiciable controversy, but events occurring after the filing
have deprived the litigant of a continuing stake in the controversy.” (quoting State v. Medical
Malpractice Joint Underwriting Association, 941 A.2d 219, 220 (R.I. 2008))). “We generally
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decline to address moot cases because ‘without the presence of a justiciable case or controversy,
* * * judicial power * * * is at its weakest ebb.’” Id. (quoting Cicilline v. Almond, 809 A.2d
1101, 1106 (R.I. 2002)). “We note that a determination of mootness does not always preclude
judicial review,” and that we exercise our discretion in considering cases that are “‘of extreme
public importance, which are capable of repetition but which evade review.’” Id. at 1214
(quoting City of Cranston v. Rhode Island Laborers’ District Council Local 1033, 960 A.2d 529,
533 (R.I. 2008)).
Certainly, a justiciable controversy between father and son existed when this case was
heard before the Family Court; however, the expiration of the order has since deprived the
parties of any meaningful stake in the outcome. Because this Court’s determination of whether
the order was properly entered and enforceable would fail to have a practical effect on the
existing controversy, we decline to address the merits. See City of Cranston, 960 A.2d at 533
(“If this Court’s judgment would fail to have a practical effect on the existing controversy, the
question is moot, and we will not render an opinion on the matter.” (citing Morris v. D’Amario,
416 A.2d 137, 139 (R.I. 1980))). The defendant submits that this Court should exercise its
discretion in considering the merits of the appeal because although the order has expired, the
judgment potentially could serve as the basis for a finding of a pattern of harassment were any
future proceeding to arise. We decline to do so. The abstract or hypothetical possibility of
further controversy between these family members does not rise to the level of a justiciable
controversy or warrant departure from this Court’s traditional approach to the mootness doctrine.
We pause to note, however, that even if this appeal presented a justiciable controversy,
when reviewing a trial justice’s issuance of an injunction, “this Court will overturn the justice’s
findings of fact only when they are clearly wrong or when the justice has overlooked or
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misconceived material evidence.” Cullen v. Tarini, 15 A.3d 968, 976 (R.I. 2011) (quoting Board
of Governors for Higher Education v. Infinity Construction Services, Inc., 795 A.2d 1127, 1129
(R.I. 2002)). The defendant has not persuaded us that the Family Court justice overlooked or
misconceived material evidence or was otherwise clearly wrong. Accordingly, the appeal is
denied and dismissed. The record shall be remanded to the Family Court.
Entered as an Order of this Court this 2nd day of March, 2017.
By Order,
/s/
_________________________________
Clerk
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STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
SUPREME COURT – CLERK’S OFFICE
ORDER COVER SHEET
Title of Case Mark Robar v. Albert Robar.
No. 2015-140-Appeal.
Case Number (W14-41A)
March 2, 2017
Date Order Filed
Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
Indeglia, JJ.
Washington County Family Court
Source of Appeal
Associate Justice Stephen J. Capineri
Judicial Officer From Lower Court
For Plaintiff:
Mark Robar, Pro Se
Attorney(s) on Appeal
For Defendant:
Frank R. Saccoccio, Esq.
SU-CMS-02B (revised November 2016)