John Vicente v. Pinto's Auto & Truck Repair, LLC d/b/a Pinto's Truck Repair ( 2020 )

June 26, 2020
Supreme Court
No. 2019-181-Appeal.
(PC 15-3174)
John Vicente :
v. :
Pinto’s Auto & Truck Repair, LLC :
d/b/a Pinto’s Truck Repair.
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 222-
3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.
Supreme Court
No. 2019-181-Appeal.
(PC 15-3174)
John Vicente :
v. :
Pinto’s Auto & Truck Repair, LLC :
d/b/a Pinto’s Truck Repair.
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
OPINION
Chief Justice Suttell, for the Court. The plaintiff, John Vicente (Vicente or plaintiff),
appeals from a judgment of the Superior Court in favor of the defendant, Pinto’s Auto & Truck
Repair, LLC d/b/a Pinto’s Truck Repair (Pinto’s or defendant), in this action alleging that the
defendant’s repairs to the plaintiff’s 2004 Freightliner Columbia (Freightliner) were faulty. This
case came before the Supreme Court by videoconferencing pursuant to an order directing the
parties to appear and show cause why the issues raised in this appeal 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 case may be decided without further briefing
or argument. For the reasons set forth in this opinion, we affirm the judgment of the Superior
Court.
I
Facts and Procedural History
According to Vicente, he entered into a verbal agreement with defendant in January 2014
for the repair of his Freightliner. The defendant ordered the parts needed for the repair from Tri
State Truck Center (Tri State), and Vicente paid Tri State directly for the parts. After receiving
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the parts, defendant completed the repair work on the Freightliner, including installing a new
cylinder head. Vicente retrieved the Freightliner from defendant in September 2014, after the
repairs had been completed. The plaintiff contended that, a few months later in December 2014,
he “began to experience severe and substantial mechanical problems with the truck.” The plaintiff
had an engine teardown completed to determine the cause of the mechanical problems, which,
according to plaintiff, showed that “the cylinder head cracked as a result of improper service and
installation of [the] same and which, in turn, caused further and significant major engine damage.”
The plaintiff filed suit against defendant alleging negligence, breach of contract, and unjust
enrichment—all stemming from defendant’s alleged improper repair of the vehicle. The defendant
filed an answer and counterclaim; however, the counterclaim is not relevant to the issues presented
in this appeal.
Thereafter, defendant moved for a scheduling order to set a timeframe for the parties to
disclose expert witnesses for trial. The plaintiff filed a limited objection to the scheduling order,
but he did not object to producing an expert witness. By agreement of the parties, an order was
entered giving plaintiff until June 14, 2017, to disclose his trial expert.
The plaintiff filed his expert disclosure designating Chris Pentedemos, the service director
at Tri State, as his expert witness. According to the disclosure, plaintiff anticipated that
Pentedemos would testify that “the engine damage was most likely the result of improper
counterboring, made during the installation of the cylinder head, which resulted in a dropped liner
and head gasket leak at the number six (6) liner near a coolant port.” However, when defendant
deposed Pentedemos, Pentedemos testified that (1) he was not a mechanic and thus could not
testify regarding repairs, (2) he did not have knowledge of the work defendant completed on the
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Freightliner, (3) he had not agreed to be an expert in the case, and (4) he had never been asked to
serve as an expert witness in this case.
As a result of this deposition testimony, defendant moved to strike Pentedemos as an expert
and for summary judgment, contending that, without an expert, plaintiff could not “establish the
standard of care and breach thereof[.]” The plaintiff countered that the anticipated testimony of
defendant’s own expert was “speculative at best” and that expert testimony was not necessary to
prove that defendant breached the agreement it made with plaintiff to repair the Freightliner.
At a hearing on defendant’s motion for summary judgment on December 12, 2018, plaintiff
stated his position that, notwithstanding the order requiring him to designate an expert witness, an
expert witness was not required. The hearing justice ruled, however, that an expert was required
for plaintiff to prove his case because it was “beyond the knowledge of the average lay person” to
determine whether defendant negligently serviced and installed the truck’s cylinder head, whether
defendant negligently failed to observe the industry standard of due care in its service and repair
of the truck, or whether defendant failed to deliver a properly serviced truck in September 2014.
The plaintiff requested an additional thirty days to designate “a new expert[,]” which the hearing
justice granted. She continued the matter until February 6, 2019, “to permit affidavits to be
obtained or depositions to be taken, consistent with Rule 56(f)”; she stated, “My only requirement
is that everything be filed, any additional memos, responsive pleadings, be filed by the 30th of
January.” The plaintiff filed an untimely amended expert disclosure on January 31, 2019, but he
did not file any supporting affidavits or deposition transcripts in support of his claims.
At the February 6, 2019 hearing, the hearing justice granted defendant’s motion for
summary judgment because plaintiff did “not produce[] the required expert testimony to
demonstrate that there [was] a genuine issue of material fact in dispute regarding Pinto’s allegedly
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negligent service and installation, negligent failure to observe industry standard, and failure to
deliver a properly serviced truck in September of 2014.” An order granting the summary judgment
motion and judgment in favor of defendant entered on February 13, 2019. The plaintiff then filed
a motion to reconsider, arguing that defendant’s own expert disclosure was deficient, which motion
was denied. The defendant dismissed its counterclaim, and an amended judgment entered in its
favor. The plaintiff timely appealed.
II
Standard of Review
“It is well settled that this Court reviews the granting of a summary judgment motion on a
de novo basis.” Malinou v. Miriam Hospital, 24 A.3d 497, 508 (R.I. 2011) (quoting Rhode Island
Insurers’ Insolvency Fund v. Leviton Manufacturing Co., 763 A.2d 590, 594 (R.I. 2000)). “We
will affirm a summary judgment if, after reviewing the admissible evidence in the light most
favorable to the nonmoving party, we conclude that no genuine issue of material fact exists and
that the moving party is entitled to judgment as a matter of law.” Id. (brackets omitted) (quoting
Poulin v. Custom Craft, Inc., 996 A.2d 654, 658 (R.I. 2010)). “[S]ummary judgment should enter
against a party who fails to make a showing sufficient to establish the existence of an element
essential to that party’s case.” Holley v. Argonaut Holdings, Inc., 968 A.2d 271, 274 (R.I. 2009)
(alteration omitted) (quoting Lavoie v. North East Knitting, Inc., 918 A.2d 225, 228 (R.I. 2007)).
The “[c]omplete failure of proof concerning an essential element of the nonmoving party’s case
necessarily renders all other facts immaterial.” Id. (quoting Lavoie, 918 A.2d at 228).
“Further, a party opposing a motion for summary judgment has the burden of proving by
competent evidence the existence of a disputed issue of material fact and cannot rest upon mere
allegations or denials in the pleadings, mere conclusions or mere legal opinions.” Malinou, 24
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A.3d at 508-09 (quoting Poulin, 996 A.2d at 658). Under Rule 56(e) of the Superior Court Rules
of Civil Procedure, competent evidence may be presented in the form of an affidavit “made on
personal knowledge * * * [that] set[s] forth such facts as would be admissible in evidence, and
* * * show[s] affirmatively that the affiant is competent to testify to the matters stated therein.”
III
Discussion
Before the Court, plaintiff contends that expert testimony is not always required in a case
such as the one at bar and that there were genuine issues of material fact regarding his negligence
claim.1 He also contends, for the first time, that there are genuine issues of material fact concerning
his breach-of-contract claim, specifically whether the transaction at issue was one for “goods” and
would thus be covered under the Uniform Commercial Code. The defendant counters that “expert
testimony must be presented when the matter is not clearly obvious to a lay person and lies beyond
common knowledge.” The defendant further argues that its own expert disclosure is irrelevant to
its motion for summary judgment and, finally, that arguments plaintiff raises for the first time on
appeal should not be considered.
In this case, plaintiff failed to provide evidence that defendant’s repairs to plaintiff’s
Freightliner were completed in a faulty manner or otherwise caused additional damage to the
vehicle; thus, he cannot prove essential elements of his claims. Each of plaintiff’s claims required
that he prove a causal link between defendant’s conduct and plaintiff’s damages. “[T]o establish
1
Brazenly, plaintiff acknowledges in his supplemental statement that he is “guilty” of “[b]luffing
about expert witnesses” and states that such practice is the norm in Rhode Island. Although the
word “bluffing” may be open to some interpretation, we read it to involve, at a minimum, a lack
of candor to the court and opposing counsel. We reject the proposition that it is a standard practice
among Rhode Island attorneys and instruct our trial judges to root out such improper conduct
whenever possible.
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a negligence claim, a plaintiff must demonstrate a legally cognizable duty owed by a defendant to
a plaintiff, a breach of that duty, proximate causation between the conduct and the resulting injury,
and the actual loss or damage.” Oliver v. Narragansett Bay Insurance Company, 205 A.3d 445,
450 (R.I. 2019) (quoting Kemp v. PJC of Rhode Island, Inc., 184 A.3d 712, 717 (R.I. 2018)). With
respect to his claim for breach of contract, “the plaintiff must prove both the existence and breach
of a contract, and that the defendant’s breach thereof caused the plaintiff’s damages.” Fogarty v.
Palumbo, 163 A.3d 526, 541 (R.I. 2017). Here, plaintiff alleged in his complaint that “[d]efendant
breached the contracted service and repair agreement when it negligently serviced and installed
the truck’s cylinder head and/or, otherwise, failed to properly service and repair [p]laintiff’s
vehicle to applicable mechanical industry standards.” (Emphasis added.) So too is plaintiff’s
claim under the quasi-contractual theory of unjust enrichment constructed upon his allegation that
defendant “failed to deliver a properly serviced, repaired and functioning truck to the [p]laintiff[.]”
The record shows that plaintiff agreed to the entry of an order requiring him to “disclose
his trial expert(s) and their opinions in the manner and form set forth in Rule 26(b)(4)(A)” by June
14, 2017. 2 At a deposition on May 11, 2018, however, his designated expert witness asserted that
2
Rule 26(b)(4)(A) of the Superior Court Rules of Civil Procedure states that:
“A party may through interrogatories require any other party to
identify each person whom the other party expects to call as an
expert witness at trial, to state the subject matter on which the expert
is expected to testify, and to state the substance of the facts and
opinions to which the expert is expected to testify and a summary of
the grounds for each opinion. A party may depose any person who
has been identified as an expert expected to testify when the expert
interrogatory has been responded to by the other party. Unless
otherwise ordered by the court, the party seeking to depose the
expert shall pay the expert the reasonable fee for the time spent
attending the deposition and the reasonable expenses incurred in
attending the deposition. In the absence of agreement between the
parties as to the timing of disclosures required under this
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he had neither been asked to serve as an expert nor was he qualified to do so. Thereafter, plaintiff
did not identify a new expert witness until ordered to do so on December 12, 2018. He then filed
an untimely “amended expert disclosure[,]” but did not include any supporting documentation, as
he had been instructed to do by the hearing justice.
As the hearing justice correctly articulated, “it was the responsibility of Mr. Vicente to
present or point to competent, admissible evidence that demonstrated that there is a genuine issue
of material fact in dispute regarding Pinto’s allegedly negligent service and installation, negligent
failure to observe industry standard, and failure to deliver a properly serviced truck[.]”
The hearing justice rejected plaintiff’s contention that expert testimony was not required.
We agree with the hearing justice. In “Plaintiff’s Expert Disclosure Information[,]” plaintiff
identified Pentedemos as his expert witness and represented that Pentedemos
“avers that the subject vehicle’s cracked cylinder head was most
likely caused as a result of an improper counterbore during the
installation of the cylinder head. The engine teardown confirmed
compression in the cooling system and further revealed a heat gasket
leak at the number six (6) liner near a coolant port.”
It is our considered opinion that the hearing justice did not abuse her discretion in holding that
“[d]etermining whether the [d]efendant had negligently serviced and installed the truck cylinder
head, or whether the [d]efendant negligently failed to observe the industry standard of care in its
service and repair of the [p]laintiff’s truck, or whether the [d]efendant failed to deliver a properly
serviced truck in September of 2014[,] were all matters that were beyond the knowledge of the
average lay person.”
subdivision, any party may apply to the court for an order
establishing a schedule of such interrogatories, responses, and
depositions. Obligation to respond to interrogatories shall be stayed
until the ruling on the application.”
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As we stated supra, the “complete failure of proof concerning an essential element of the
nonmoving party’s case necessarily renders all other facts immaterial.” Holley, 968 A.2d at 274
(quoting Lavoie, 918 A.2d at 228). Thus, we need not address plaintiff’s contentions of disputed
material facts. Furthermore, we decline to address plaintiff’s argument that this transaction should
be treated as one for goods and thus governed by the Uniform Commercial Code, because plaintiff
has raised this argument for the first time on appeal before this Court. It is well established in our
jurisprudence that “an issue that has not been raised and articulated previously at trial is not
properly preserved for appellate review.” Cote v. Aiello, 148 A.3d 537, 549 (R.I. 2016) (quoting
State v. Gomez, 848 A.2d 221, 237 (R.I. 2004)).
The plaintiff has produced no admissible evidence that Pinto’s negligently repaired the
Freightliner, breached any contract it had with the plaintiff by delivering an unrepaired vehicle, or,
alternatively, was unjustly enriched by accepting the plaintiff’s money without completing proper
repairs. When the defendant filed its motion for summary judgment, it was the plaintiff’s burden
to produce evidence to show a genuine issue of material fact. Having failed to do so, the hearing
justice properly granted summary judgment in the defendant’s favor.
IV
Conclusion
The judgment of the Superior Court is affirmed, and the papers in this case may be returned
to that tribunal.
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STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
SUPREME COURT – CLERK’S OFFICE
OPINION COVER SHEET
John Vicente v. Pinto’s Auto & Truck Repair, LLC v.
Title of Case
d/b/a Pinto’s Truck Repair.
No. 2019-181-Appeal.
Case Number
(PC 15-3174)
June 26, 2020
Date Opinion Filed
Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
Indeglia, JJ.
Written By Chief Justice Paul A. Suttell
Providence County Superior Court
Source of Appeal
Associate Justice Melissa A. Long
Judicial Officer From Lower Court
For Plaintiff:
Christopher M. Lefebvre, Esq.
Attorney(s) on Appeal For Defendant:
Stanley F. Pupecki, Esq.
Mark P. Dolan, Esq.
SU-CMS-02A (revised June 2016)