- 1 - Supreme Court No. 2011-336-Appeal. (PD 08-5726)

Victoria Rodriguez et al. :

v. : John Virgilio. :

ORDER The defendant, John Virgilio, appeals from a default judgment entered against him after he failed to appear for tria l in the Superior Court. This case came before the Supreme Court for oral argument on October 31, 2012, pursuant to an orde r directing the parties to appear and show cause why the issues raised in this appeal s hould not summarily be deci ded. After hearing the arguments and examining the memoranda filed by th e parties, we are of the opinion that cause has not been shown, and we proceed to decide the appeal at this time w ithout further briefing or argument. For the reasons set forth in this order, we affirm the judgment of the Superior Court. It is undisputed that defendant and plaintiff, Victoria Rodriguez, entered into a one-year lease agreement, under which he was the landlord and she was the tenant for a rental unit at 16 Dresser Street in Providence. Victoria and her daughter Yris R odriguez (collectively plaintiffs) vacated the apartment at the end of the lease. However, several disputes arose and plaintiffs filed suit in the Sixth Division Distri ct Court seeking reimbursement for an $800 security deposit, paint and brushes, blinds, a toilet seat and handl es, rat poison and a grill. The defendant denied that he owed plaintiffs any money, and he asserted a counterclaim for $200. That amount represented the difference betw een the $1,000 in damages that defendant alleged plaintiffs- 2 - caused to his property when they haphazardly pain ted it and the $800 security deposit, which he
retained. The plaintiffs claimed that they were entitle d to a return of their security deposit because defendant gave them permission to paint the rent al unit. The defendant asserted that no such permission was given, and he further maintained that he was required to repaint the apartment because of the careless manner in which plain tiffs had painted it. Additionally, plaintiffs asserted that defendant gave away their grill , while defendant maintained that plaintiffs abandoned it, along with other trash, when they vacated the unit. The plaintiffs also alleged that they were forced to address a rodent problem at their own expense beca use defendant failed to remedy the situation. The defendant responded by saying th at he had hired a pest-control service. Finally, defendant maintained that plaint iff was not entitled to reimbursement for brushes, blinds or bathroom fixtures under th e Rhode Island General Laws or under the lease agreement. After trial in the District Court, judgm ent was entered for plaintiffs and against defendant. The defendant then appe aled that judgment to the Supe rior Court for a trial de novo. That court set the matter down for trial on A ugust 29, 2011. However, defendant failed to appear, and judgment again was entered against him. The defendant timely appealed to this
Court. On appeal, defendant argues that he was unabl e to travel to the courthouse on the day that his case was to be heard in the Superior Court because a tree fell during hurricane Irene, blocking his driveway. Additionally, defendant argues that the sole reason judgment was entered against him in the District Court was because he was unable to prove that he sent a letter to plaintiffs, listing the repairs that he made to the apartmen t that exhausted their security deposit. He- 3 - contends that he can prove that this letter wa s sent, and he has asked this Court to vacate the default judgment of the Superior Court. 1
This Court has held that “whe never relief from default has been requested * * * it ‘is addressed to the judicial discretion of the ju stice having jurisdiction over the matter and his ruling will not be disturbed by this [C]ourt, absent a showing of abuse of di scretion or an error of law.’” Providence Gas Co. v. Biltmore Ho tel Operating Co., 119 R.I. 108, 112, 376 A.2d 334, 336 (1977) (quoting Bloom v. Trudeau, 107 R.I. 303, 305, 266 A.2d 417, 418 (1970)). 2 In the case before us, the defendant has fa iled to overcome his bur den of demonstrating that the trial justice abused his discretion or committed an error of law. The arguments set forth by the defendant are insufficient to satisfy the de ferential standard empl oyed by this Court when we review a request for relief from default judgment. See Providence Gas Co., 119 R.I. at 112, 376 A.2d at 336. The defendant had his day in court at the District Court trial, and he also took advantage of his right to appeal that decision to the Superior Court. The defendant has failed to demonstrate that there was an abuse of discreti on or an error of law committed in the Superior Court. Accordingly, we declin e the defendant’s request to va cate the judgment against him. 3 For the reasons set forth above, the judgment of the Superior Court is affirmed and the record may be remanded thereto.

1 Additionally, defendant seeks damages of $1,000 fo r harm caused to his credit as a result of that judgment being entered against him. 2 The defendant did not file a motion in the trial court seeki ng to vacate the default judgment pursuant to Rule 60 of the Superior Court Rules of Civil Procedure. 3 The defendant’s counterclaim con cerning damage to his credit is be ing raised for the first time on appeal. Because of this Cour t’s strict adherence to the raise-or-waive rule, this claim is deemed waived and is not properly before us. See State v. Bido, 941 A.2d 822, 828-29 (R.I. 2008) (“It is well settled that a litigant cannot raise an objection or adva nce a new theory on appeal if it was not raised be fore the trial court. ” citing Hydro–Manufactur ing, Inc. v. Kayser– Roth Corp. , 640 A.2d 950, 959 (R.I. 1994)). Theref ore, we shall not address it.- 4 - Entered as an Order of this Court this 6th day of December, 2012. By Order,

____________/s/________________ Clerk

### R HODE 

### I SLAND 

### S UPREME 

### C OURT 

### C LERK 

### ’ S 

### O FFICE 

### Clerk’s Office Order/Opinion Cover Sheet

TITLE OF CASE: Victoria Rodriguez et al. v. John Virgilio. CASE NO: No. 2011-336-Appeal (PD 08-5726) COURT: Supreme Court DATE ORDER FILED: December 6, 2012 JUSTICES: Suttell, C.J., Goldberg, Flah erty, Robinson, and Indeglia, JJ. WRITTEN BY: N/A – Court Order SOURCE OF APPEAL: Providence County Superior Court JUDGE FROM LOWER COURT : Associat e Justice Walter R. Stone ATTORNEYS ON APPEAL: For Plaintiff: Victoria Rodriguez, Pro Se For Defendant: John Virgilio, Pro Se