John Devaney v. St. Thomas More Catholic Church ( 2022 )

December 9, 2022
Supreme Court
No. 2021-167-Appeal.
(WC 17-54)
John Devaney :
v. :
St. Thomas More Catholic Church 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. 2021-167-Appeal.
(WC 17-54)
John Devaney :
v. :
St. Thomas More Catholic Church 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 October 27, 2022, 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 pro
se plaintiff, John Devaney (plaintiff), appeals from a Superior Court judgment in
favor of the defendants, St. Thomas More Catholic Church (St. Thomas More), St.
Peter’s By-the-Sea Episcopal Church (St. Peter’s), and the Roman Catholic Bishop
of Providence (defendants), following the dismissal of the matter in accordance with
Rule 37 of the Superior Court Rules of Civil Procedure. After considering the
parties’ written and oral submissions and reviewing the record, we are satisfied that
cause has not been shown and that this case may be decided without further briefing
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or argument. For the reasons stated herein, we affirm the judgment of the Superior
Court.
Facts and Travel
Litigation regarding the underlying issues in this case commenced almost ten
years ago; taking a toll on all parties involved. See Devaney v. Kilmartin, 88 F. Supp.
3d 34, 43 (D.R.I. 2015). In July 1995 plaintiff purchased his home at 56 Rockland
Street in the Narragansett Pier neighborhood of Narragansett (the town). St. Thomas
More is located at 53 Rockland Street, while St. Peter’s is located at 72 Central
Street. Both churches are located in the town’s Pier neighborhood.
Beginning in 1999, St. Peter’s began to operate an electronically generated
and amplified bell-ringing system that had recently been donated to the parish. The
plaintiff began to hear an electronically amplified bell-ringing system from the bell
tower of St. Thomas More sometime thereafter. He contends that the excessive noise
emanating from defendants’ bell towers is a serious hazard to his health and welfare
and unnecessarily degrades his quality of life. He further alleges that the ringing of
the bells has resulted in a diminution of the value of his property, impeded its free
use, and led to the breakup of his family, causing him to suffer mental anguish. The
plaintiff first attempted to litigate this matter in 2013, when he filed suit against
defendants in the United States District Court for the District of Rhode Island. See
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Devaney, 88 F. Supp. 3d at 43. The federal court dismissed that suit in 2015 and
declined to exercise jurisdiction over plaintiff’s claims under state law. Id. at 38, 59.
On February 7, 2017, plaintiff filed the case at bar in Washington County
Superior Court, seeking to enjoin defendants from operating their respective bell
systems, alleging a claim of nuisance, and seeking more than $3 million in damages.1
The crux of the issue on appeal concerns plaintiff’s answers to interrogatories,
specifically his response to interrogatory number six, which required him to identify
any expert witnesses he expected to call at trial, as well as the substance of the facts
and opinions that each expert was expected to provide.
The plaintiff was first served a set of interrogatories, including the expert-
witness inquiry, on June 7, 2017. The plaintiff responded on August 12, 2017,
objecting to most of the questions, including the expert-witness interrogatory, stating
that the information requested had not been fully developed at that time. Thirteen
months later, on September 25, 2018, the trial court granted a motion to compel more
responsive answers to the interrogatory. The plaintiff responded on December 12,
2018, and provided a list of twelve people identified as proposed experts and three
additional non-specified experts to testify as to various elements of his claims.2
1
The plaintiff’s complaint also included a claim seeking a declaratory judgment that
the exemption from the Town of Narragansett noise ordinance for places of worship
“be deemed ineffective.”
2
The plaintiff’s December 12, 2018 list of experts included eleven named
individuals and “Narragansett Fire Department Rescue Squad Personnel.”
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In an order dated February 1, 2019, the trial court denied plaintiff’s request
for the court to appoint expert witnesses and ordered plaintiff to disclose by April 5,
2019, all experts he expected to testify at trial, the subject matter of the expected
testimony, and the substance of the expected facts and opinions, together with a
summary of the grounds for each opinion. The plaintiff responded on April 5, 2019,
identifying three additional individuals he expected to call as experts, including
Bertram Gibbes, Ph.D. (Dr. Gibbes), who was to attest to the effect on plaintiff’s
well-being resulting from the noise generated by the ringing bells.
On August 23, 2019, the trial court entered a conditional order of dismissal,
in accordance with Rule 37, ordering plaintiff to provide full and complete
interrogatory answers for his experts Edward A. Caswell, Jr. (Caswell) and Dr.
Gibbes by September 25, 2019. The order further stated that if plaintiff failed to
comply by that date, the conditional order of dismissal would become final only
upon further motion and hearing. On September 24, 2019, plaintiff submitted his
final supplemental interrogatory response. In his answer, plaintiff removed Caswell
from his witness list, and he then proceeded to identify Dr. Gibbes as his only expert
witness and set forth the subject matter, substance, and grounds for Dr. Gibbes’s
testimony.
At a hearing on November 20, 2019, plaintiff informed the trial court that Dr.
Gibbes would be his only expert witness testifying at trial. Counsel for defendant
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St. Thomas More asserted that plaintiff’s interrogatory responses were deficient.
The role that Dr. Gibbes played in drafting the response also was questioned, as
counsel believed there were statements in the supplemental response that no expert
would proffer. Counsel for St. Thomas More suggested that he be allowed to
subpoena Dr. Gibbes’s records and to take his deposition.
During a status conference, counsel for St. Peter’s indicated that she had
received some of the records requested from Dr. Gibbes by way of subpoena, but
that she intended to depose Dr. Gibbes, while continuing her deposition of plaintiff.
Soon thereafter, defendants filed a joint motion seeking to preclude plaintiff’s
expert witnesses and requesting a dismissal pursuant to Rule 37. The defendants
asserted that plaintiff had failed, once again, to provide timely and sufficient answers
to defendants’ expert interrogatory. Highlighting plaintiff’s deposition testimony,
defendants argued that plaintiff did not comply “with the spirit or substance” of the
court’s discovery orders.
During his deposition, plaintiff admitted that Dr. Gibbes did not read the
responses before they were served on defendants. He further stated that he did not
know if the answers contained in the supplemental expert interrogatory response
were a complete and accurate opinion of the purported witness. The plaintiff
testified that the draft report prepared by Dr. Gibbes contained opinions that were
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not included in the interrogatory answer. The plaintiff further added that he had
included “things that [he] [saw] on [his] own” in the supplemental response.
Due to the Covid-19 pandemic, a hearing on the motion to dismiss was not
held until September 23, 2020. The defendants reiterated their contention that
plaintiff had failed to comply with discovery orders, repeatedly highlighting the fact
that the court had issued four orders to compel disclosure of expert witnesses. The
defendants asserted that they did not know whether the expert interrogatory answer
was complete, or rang true, because Dr. Gibbes never reviewed or adopted the
response. The defendants argued that the case should be dismissed as a result of
plaintiff’s actions.
The plaintiff stated that his answer to the expert interrogatory question was
complete. He also argued that he complied with the trial court’s orders because he
responded to the interrogatory with the responses that he “expected” his expert to
give and that there was no guarantee that Dr. Gibbes would testify to what plaintiff
anticipated in the response. The trial justice reserved decision.
The trial justice subsequently issued a written decision granting defendants’
motion to dismiss pursuant to Rule 37(b). The trial justice held that because plaintiff
admitted to supplementing the expert interrogatory answers with matters that he had
personally observed, while also admitting that he did not know if the answers he
provided were a complete and accurate opinion of Dr. Gibbes’s expected testimony,
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dismissal was warranted. The trial justice concluded that Rule 26(b)(4)(A) of the
Superior Court Rules of Civil Procedure did not permit plaintiff to speculate on the
expected testimony of an expected witness because it would impede defendants’ trial
preparations. The trial justice found that plaintiff was aware that he was to comply
with the expert discovery disclosure orders and was given numerous warnings but
continued to resist despite these opportunities. Accordingly, the trial justice
dismissed plaintiff’s complaint due to his continued failure to comply with Rule 26.
Yet another hearing was held on October 28, 2020, in order for plaintiff to
contest the dismissal. The trial justice overruled plaintiff’s objection and entered an
order consistent with his written decision. Final judgment was entered on October
28, 2020, and plaintiff timely appealed.
On appeal, plaintiff assigns a series of errors to the trial justice’s decision. He
contends that the trial justice failed to accord meaning and effect to the words
“expect” and “expected” under Rule 26; that the trial justice failed to analyze his
interrogatory answers; and that the subpoenaed material from his expert witness
should have been considered part of his response. He also contends that defendants’
Rule 37 dismissal motion was lacking in necessary form and substance and that the
trial justice failed to evaluate for himself plaintiff’s “Supplemental Interrogatory
Response.”
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Standard of Review
This Court reviews a trial “justice’s decision to impose a sanction pursuant to
Rule 37 for noncompliance with a discovery rule or order for abuse of discretion.”
EdgengG (Private), Ltd. v. Fiberglass Fabricators, Inc., 272 A.3d 596, 600 (R.I.
2022). “We will find an abuse of discretion only when a motion justice has
dismissed an action in the absence of evidence demonstrating persistent
refusal, defiance or bad faith.” Joachim v. Straight Line Productions, LLC, 138 A.3d
746, 751 (R.I. 2016) (emphasis omitted) (quoting Flanagan v. Blair, 882 A.2d 569,
573 (R.I. 2005)).
Analysis
Rule 37(b)(2) permits a justice of the Superior Court to impose a variety of
sanctions “on a party who has failed to comply with an order to provide discovery *
* * [including] an order directing the entry of final judgment.” Flanagan, 882 A.2d
at 572-73 (footnote omitted). The decision to impose sanctions, including entry of
final judgment, is left to “the sound discretion of the motion justice.” Id. We will
“reverse a trial justice’s decision to impose sanctions for Rule 37 violations only
when we find that he or she has abused his or her discretion.” Zaino v. Zaino, 818
A.2d 630, 640 (R.I. 2003) (quoting Lembo v. Lembo, 677 A.2d 414, 419 (R.I. 1996)).
Our careful review of the record in the case satisfies this Court that the trial justice
did not abuse his discretion in dismissing the case at bar due to plaintiff’s
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noncompliance with multiple discovery orders, specifically regarding his responses
to the expert-witness interrogatory.
“To be deemed to have failed to serve a written response, a party need not fail
to respond entirely; instead, ‘an evasive or incomplete answer or response is to be
treated as a failure to answer or respond.’” Joachim, 138 A.3d at 753 (quoting
Aguayo v. D’Amico, 981 A.2d 1016, 1017 (R.I. 2009)). In the case at bar, plaintiff
repeatedly failed to provide a full and complete answer to the expert-witness
interrogatory. These answers included an objection to the interrogatory, a list of
proposed experts without confirmation that they all had agreed to testify, and scant
information as to their opinions.
After plaintiff submitted his final supplemental interrogatory response, he
acknowledged that the answers ascribed to the only remaining expert witness were
crafted without the expert’s approval or review. Further, plaintiff was unable to state
whether the response represented a clear and accurate disclosure of the expert’s
expected opinion. The evasive actions by plaintiff regarding the expert-witness
interrogatory and subsequent answer attributed to his expert without the expert’s
input supports the trial justice’s decision.3
3
We pause to note that, if plaintiff was a licensed attorney, sanctions would be in
order. See Lisi v. Resmini, 603 A.2d 321, 322, 324 (R.I. 1992) (attorney suspended
from practicing law for submitting answers to supplemental interrogatories and
signing client’s name without client’s review).
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Thus, “[d]espite the severity of a final judgment dismissing the action, this
[C]ourt will affirm a trial justice’s use of this type of drastic sanction in the face of
a party’s persistent failure to comply with discovery obligations.” Mumford v.
Lewiss, 681 A.2d 914, 916 (R.I. 1996). We are of the opinion that this failure to
provide a complete discovery response after repeated orders and admonitions by the
trial court warranted dismissal in accordance with Rule 37.4
Finally, the plaintiff presents a series of contentions that dismissal in
accordance with Rule 37 was improper. However, because none of these arguments
have been substantially developed, we decline to address them.
Conclusion
For the reasons set forth in this opinion, we affirm the judgment of the
Superior Court. The papers in this case may be remanded to the Superior Court.
4
In a dignified appearance before this Court at oral argument, plaintiff raised his
status as a pro se litigant as justification for his deficiencies. The unfailing patience
of two Superior Court justices satisfies us that his pro se status was generously
accommodated.
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STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903
OPINION COVER SHEET
John Devaney v. St. Thomas More Catholic Church et
Title of Case
al.
No. 2021-167-Appeal.
Case Number
(WC 17-54)
Date Opinion Filed December 9, 2022
Suttell, C.J., Goldberg, Robinson, Lynch Prata, and
Justices
Long, JJ.
Written By Associate Justice Maureen McKenna Goldberg
Source of Appeal Newport County Superior Court
Judicial Officer from Lower Court Associate Justice William E. Carnes, Jr.
For Plaintiff:
John Devaney, Pro Se
Attorney(s) on Appeal For Defendants:
Amanda Prosek, Esq.
Robert K. Taylor, Esq.
SU-CMS-02A (revised November 2022)