Supreme Court

No. 20 13

- 53

- A ppeal. (WC 10

- 291)

Bruce Brayman Builders, Inc. :

v. :

James M. Lamphere, in his capacity as Town Planner for the T own of Hopkinton. :

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.- 1

- Supreme Court

No. 20 13

- 53

- A ppeal. (WC 10

- 291)

Bruce Brayman Builders, Inc. :

v. :

James M. Lamphere, in his capacity as Town Planner for the T own of Hopkinton. :

Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

O P I N I O N

Justice Robinson , for the Court. The plaintiff , Bruce Brayman Builders, Inc.

(Brayman)

, appeals from a Superior Court judgment in favor of the defendant, James M.

Lamphere, the Town Planner for the Town of Hopkinton

, denying Brayman’s declaratory

judgment action on the basis of Brayman’s purported failure to exhaust its administrative

remedies

. On appeal, Brayman argues, inter alia , that the tri al justice 1 erred in denying it

declaratory relief because the parties did not have a meaningful opportunity to brief and/ or argue

whether the administrative exhaustion doctrine should apply to the present case. For the reasons

set forth in this opinion, we vacate the judgment of the Superior Court.

I

Facts and Travel

In 2009, Brayman applied to the Town Planning Board for a preliminary plan approval of

a minor subdivision

. Pursuant to the Town of Hopkinton ’s Land Development & Subdivision

1 More than one Superior Court justic e has presided over this matter in the course of the litigation; but, for the sake of clarity, we shall simply use the term “the trial justice” without further specification.- 2

-

Regulations, such an applicant is required to “submit to the Administrative Officer all plans and

supporting materials as required by the Preliminary Plat Checklist for Minor Subdivisions ” (the

Checklist). 2 Town of Hopkinton’s Land Development & Subdivision Regulatio ns , Article IV,

Section C

. 1 (1995, as amended August 16, 2000). The just

- referenced C hecklist requires

submission of

, inter alia , “ [ p ] roof of paid up

- to

- date property taxes .” In seeking to comply with

that requirement, Brayman provided a “Municipal Lien C ertificate ,” which indicated that

, while

all of the company’s real property taxes were current, it nevertheless owed $45,162.97 in

personal property taxes as of that time . In a letter dated July 14, 2009, the Town Planner stated

that he would certify t he subdivision application as complete once Brayman submitted proof of

payment of all taxes due

— including personal property taxes as well as real property taxes

. Instead of paying the outstanding personal property taxes, on May 3, 2010

, Brayman filed

a complaint in the Superior Court for Washington County, seeking a writ of mandamus to

compel the Town Planner to certify Brayman’s subdivision application as complete (Count One ).

Thereafter, on July 14, 2010, the Town Planner moved to dismiss Count One, alleging that

, inter

alia

, Brayman had failed to exhaust its admin istrative remedies in view of the fact that it had not

appeal ed the Town Planner ’s decision to the Platting Board of Review. 3 In further support of his

motion to dismiss, the Town Planner also argued that his refusal to certify Brayman’s

subdivision application as complete did not involve a ministerial act such as might be amen able

to a writ of mandamus

. In due course

, Brayman o bjected to the Town Planner ’s motion to

2 Article XI, Section A.1 of the Town of Hopkinton ’s Land Development & Subdivi sion Regulations states: “T he Town Planner of the Town of Hopkinton is hereby designated as the Administrative Officer * * *

. ”

3 Article XII, Section A. 1 of the Town of Hopkinton’s Land Development & Subdivision Regulations reads in pertinent part as follows: “A ny party aggrieved by a decision of * * * the Administrative Officer shall have the right to appeal that decision to the Platting Board of Review * * * .”- 3

-

dismiss and also move d to amend its complaint in order to add a count seeking declaratory

judgment ; it sought a declaration to the effect that the term “property taxes” in the Checklist

refers only to real property taxes

. O n October 18, 2010, the Town Planner filed an objecti on to

Brayman’s motion to amend.

O n March 21, 201 1, the trial justice heard arguments relative to the above

- referenced

motions. T h e trial justice first granted Brayman’s motion to amend its complaint to add a count

seeking declaratory relief (Count Two)

. The Town Planner then argued that both counts should

be dismissed because Brayman had not appeal ed the Town Planner ’s decision t o the Platting

Board of Review and

, therefore, had failed to exha ust its administrative remedies. At the

conclusion of the he aring , the trial justice , finding that the Town Planner’s decision was “not

ministerial but * * * within the sound exercise of his discretion,” granted the Town Planner ’s

motion to dismiss Count On e (the mandamus count)

. W ith respect to Count Two, however , he

summarily ruled that “[t] h e declaratory judgment action survives * * *

. ”

Thereafter, in April and May of 2012, the declaratory judgment action still being viable,

the parties filed cross

- motions for summary judgment seeking a ruling as to the mean ing of

“property taxes” in the Checklist. Brayman ’s sole argument was that the term “property taxes”

refers only to real property taxes, whereas the Town Planner ’s sole argument was that the term

“property taxes” includes both real and personal prop erty t axes. Neither party made reference to

the administrative exhaustion doctrine in their respective memoranda of law or at the hearing on

the cross

- motions, which was held on May 21, 2012. I n a written decision dated June 19 , 2012

,

t he trial justice denied both motions. 4 In that same written decision

, the trial justice also sua

4 In addition to challenging on appeal the trial justice’s sua sponte reliance on the d octrine of administrative exhaustion, Brayman has also appealed from the trial justice’s denial of the

cross

- motions for summary judgment. In view of the fact that final judgment was entered in this- 4

-

sponte expressly denied Brayman’s request for declaratory relief in view of his conclusion that

Brayman had f

a iled to exhaust its administrative remedies

. Thereafter , Brayman filed a timely

notice of appeal.

II

Standard of Review

It is well settled that

, “w ith respect to the ultimate decision by a trial justice to grant or

deny declaratory relief, our standard of review is deferential.” Grady v. Narragansett Electric

Co.

, 962 A.2d 34, 41 (R.I. 2009 ); see also Hagenberg v. Avedisian , 879 A.2d 436, 441 (R.I.

2005). However, a trial justice’s discretion to grant or deny declaratory relief “ is not absolute

and is subject to appropriate appellate review. ” Sullivan v. Chafee , 703 A.2d 748, 751 (R.I.

1997 ); see also Rhode Island Republican Party v. Daluz , 961 A.2d 287, 293 (R.I. 2008)

. Accordingly, we review a trial justice’s ruling in the declaratory judgment context “ with an eye

to whether the court abused its discretion, misinterpret ed the applicable law, overlooked material

facts, or otherwise exceeded its authority. ” Sullivan , 703 A.2d at 751.

III

Analysis

Although we are mindful of the deference due to a trial justice’s decision to grant or deny

declaratory relief, we hav e no choice at this point in time but to agree with Brayman’s contention

that the trial justice erred in deciding sua sponte to app ly the administrative exhaustion doctrine.

This is so becaus e we adhere to the principle that

, “when a trial justice considers a nd rules on an

case (albeit on a ground unrelated to what was argued in the motions for summary judgment ), th e appeal from the denial of the summary judgment motions is procedurally appropriate. See Greensleeves, Inc. v. Smiley , 942 A.2d 284, 290 (R.I. 2007). However, in view of our ultimate resolution of this appeal ( see i nfra ), we need not address that aspect of Brayman’s appeal.- 5

-

issue sua sponte
, the parties must be afforded notice of the issue and allowed an opportunity to

present evidence and argue against it.” Catucci v. Pacheco

, 866 A.2d 509, 515 (R.I. 2005)

(holding that a trial justice erred in adding new par ty defendants sua sponte at the close of the

plaintiff’s case) ; see also D ’ Alessio v. State

, 101 A.3d 1270, 1278 (R.I. 2014 ) (stating that the

“hearing j ustice incorrectly , and sua sponte , passed on the issue of ineffective assistance of [the]

applicant’s trial couns el ,” where neither party had raised that issue ) ; Lomastro v. Iacovelli , 56

A.3d 92, 96 (R.I. 2012) (discerning an abuse of discretion in the trial justice’s failure to give the

parties an opportunity to address the issue of whether or not a moti on to amend should be

granted) ; Providence Journal Co. v. Convention C en t er Auth ority , 824 A.2d 1246, 1248 (R.I.

2003) ( stating that the trial justice erred in sua sponte order ing additional redactions that the

defendant had never requested); Vargas Manufa cturing Co. v. Friedman , 661 A.2d 48, 55 (R.I.

1995); Santos v. Santos , 568 A.2d 1010, 1011 (R.I. 1990)

.

In view of the fact that the trial justice’s sua sponte invocation of the administrative

exhaustion doctrine deprived Brayman of the opportunity to pre sent argument concerning that

issue at the summary judgment stage

, it is our view that the case at bar is analogous to what was

at issue in the above

- cited Vargas Manufacturing Co. and Santos cases

. I n Vargas

Manufacturin g Co. , 661 A.2d at 55 , this Court reversed a trial justice’s awar d of punitive

damages where “ the trial justice, presented with a counterclaim seeking punitive damages based

solely on misrepresentation, sua sponte awarded punitive damages based upon threats made by

[ the plaintiff’s ] agent that the trial justice found amounted to the crime of extortion. ” Somewhat

similarly

, in Santos

, 568 A.2d at 1011, a husband filed a motion to reduce the support order

which had entered at the time of the parties’ divorce , but the trial justice decided su a sponte to- 6

-

order an increase in support. Thereafter, this Court granted the husband’s petition for certiorari

and quashed the trial justice’s order increasing the amount of support , stating:

“[I] t must be recognized that both parties appeared before the trial justice that day with the expectation of arguing the merits of a motion to decrease. Rather, the husband found himself in the precarious situation of defending against what amounted to an entirely unexpected determination on the part of the trial ju stice to increase the support paid by the husband. We find this to be substantially unfair to the husband. Such a determination without notice and an opportunity for a meaningful hearing cannot be allowed to stand

. ” Id. ( e mphasis added)

.

T he Town Planner , citing Johnston A mbulatory Surgical Associates, L td. v. Nolan , 755

A.2d 799 (R.I

. 2000) , contends that the trial justice ’s dismissal of Count Two (the declaratory

judgment count) on the basis of the administrative exhaustion doctrine should nevertheless be

upheld. We do not deem it necessary to recount here the fairly complex factual and procedural

context of the Nolan decision

. Suffice it to say that, in the end, this Court concluded that the

applicant for the certificate of need that was at issue in t hat case had sufficiently alluded to the

principle of administrative finality in the Superior Court

— a lbeit not in those precise words

. Id.

at 813. For that reason , we ruled that “ the substance of the argument relied upon by the trial

justice was raised b efore him and could be considered by this Court.” Id

. ; c f. King v. Huntress,

Inc. , 94 A.3d 467, 484 (R.I. 2014) (holding that, while an objection to a particular jury

instruction “was not a model of proper syntax,” there was nonetheless “enough meat on th e bone

to have put the trial justice on notice as to wh at [the] defendant contended was the nature of [the

tr ial justice’s] alleged error ”) (internal quotation marks omitted)

. In the case at bar, in stark

contrast to what transpired in Nolan , the administ rative exhaustion doctrine (a close cousin to the

administrative finality principle that was at issue in Nolan ) was not raised by the Town Planner

at the summary judgment stag e in 2012 so as to allow Brayman an opportunity to object to its- 7

-

applicability. See Berkovitz v. Home Box Office, Inc. , 89 F.3d 24, 29 (1st Cir. 1996) (vacating

the sua sponte grant of summary judgment against the plaintiff, who

, as “the targeted party

, ” had

not had “an adequate opportunity to dodge the bullet” ).

In our judgment, th e trial justice abused his discretion when he sua sponte invoked the

administrative exhaustion doctrine in the course of denying Brayman declaratory relief where

neither party had briefed and/or argued th at doctrine

. 5 See

, e.g. , Lomastro , 56 A.3d at 96 ;

Catucci

, 866 A.2d at 515; Vargas , 661 A.2 d at 55; Santos , 568 A.2d at 1011. 6

IV

Conclusion

For the reasons set forth in this opinion, we vacate the judgment in this case and remand

the record to the Superior Court.

5 In his brief, the Town Planner also makes a cursory argument that the trial justice rested his decision to deny Brayman declaratory relief on separate ground s in addition to the administrative exhaustion doctrine

— viz. , that the Town Planner ’s interpretation of the Checklist was entitled to deference and could only be rejected by the Supe rior Court if it was found to have been clearly erroneous. How ever, that issue was neither briefed nor argue d at the summary judgment stage. Accordingly, we need no t address that argument in this opinion. See

, e.g. , Ryan v. Roman Catholic Bishop of Providence , 941 A.2d 174, 184

- 85 (R.I. 2008).

6 Brayman also suggests that the rule of “the law of the case” sh ould bar further consideration by the trial court of the administrative exhaustion doctrine. In our view, however, this is an instance where that rule may and should be “ w aived by reason of the importance of the issue involved to the ultimate disposition of the case.” Payne v. Superior Court for Providence County , 78 R.I. 177 , 185, 80 A.2d 159, 163, reh. denied , 78 R.I. 188, 82 A.2d 167 (1951); see also Taveira v. Solomon , 528 A.2d 1105, 1107

- 08 (R.I. 1987).

### R HODE 

### I SLAND 

### S UPREME 

### C OURT 

### C LERK 

### ’ S 

### O FFICE



### Clerk’s Office Order/O pinion Cover Sheet

TITLE OF CASE: Bruce Brayman Builders, Inc. v. James M. Lamphere, in his capacity as Town Planner for the Town of Hopkinton.

CASE NO : No. 20 1 3

- 53

- Appeal. ( WC 10

- 291 )

COURT: Supreme Court

DATE OPINION FILED: February 13 , 2015

JUSTICES: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia

, JJ.

WRITTEN BY: Associate Justice William P. Robinson III

S OURCE OF APPEAL: Washington County Superior Court

JUDGE FROM LOWER COURT :

Associate Justice Brian P. Stern

ATTORNEYS ON APPEAL :

For Plaintiff : Kelly M. Fr acassa, Esq.

For Defendant : Scott D. Levesque, Esq.