Supreme Court
No. 2017 -334 -Appeal. (NC 16 -487 )

Epic Enterprises LLC et al. :

v. : The Bard Group, LLC

. :

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. June 20, 2018- 1

- Supreme Court
N o. 2017

- 334

- Appeal. ( NC 16

- 487 )

Epic Enterprises LLC et al. :

v. : The Bard Group, LLC

. :

Pre sent: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia , JJ.
O P I N I O N
Justice Goldberg , for the Court. This ca se came before the Supreme Court on May 9, 2018, 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 defendant, The Bard Group, LLC (defendant), appeals from a final judgment granting summary judgment in favor of the plaintiffs, Epic Enterprises LLC, Donna R. Morvill o, Kurt Rauschenbach, and Kristi n Rauschenbach (collectively plaintiffs). After hearing the arguments of counsel and examining the memoranda submitted by the parties, we are of the opinion that cause has not been shown and that this case should be decided without further briefing or argument. We affirm the judgment of the Superior
Court.
Facts and Travel This dispute concerns a thirteen

- unit condominium c omplex known as “10 Brown & Howard Wharf Condominium” (the condominium) located near Thames Street in Newport,
Rhode Island. The condominium was created by declaration dated August 12 , 2014, and
recorded on August 29, 2014 , in the Newport l and e vidence r e cords. The defendant owns nine
of the thirteen condominium units and is therefore the majority owner with 70.8 percent of the- 2

-

voting share

. The plaintiffs own the remaining four units and ha ve 29.2 percent of the voting
share

. The original declaration p ermitted only “ Retail/Office , ” “Office , ” or “Residential ” uses in
the condominium. Specifically, Article 2.2(ff) expressly prohibited a restaurant use: “ NO commercial kitchens or the preparation of or the service of food for consumption onsite shall be
al lowed.” However, o n December 23, 201 6 , defendant, as the majority

- interest holder , unilaterally adopted and recorded a “ second amendment ” to the declaration that removed the language in Article 2.2(ff) that prohibited commercial kitchens and food service. In doing so, the second amendment expressly include d “Restaurant Use” as a new permitted use relative to the units owned by defendant

. The second amendment , in relevant part , stated : “Notwithstanding anything to the contrary contained herein or in this D eclaration, Units 103, 104, 105, 106 and 107 may have commercial kitchens and be used for the purpose of Restaurant Use.” The defendant also applied to the Newport City Council for a victualing license and t o transfer a Class BV alcoholic beverage license for a restaurant that it intended to establish in its units. The plaintiffs, in opposition to the second amendment , filed this declaratory judgment
action in the Superior Court seeking a declaration that th e second amendment was invalid and
that to be v alid, the adoption of the second amendment required unanimous consent of all the

owners pursuant to G.L. 1956 § 34

- 36.1

- 2.17 (d). The parties filed cross

- motions for summary judgment. The defendant argued that , because § 34

- 36.1

- 2.17 (d) deals only with th e restriction
of uses , and because the second amendment in this case did not restrict the use or occupancy of any unit, the second amendment was valid. On May 1, 2017, a hearing was held on the motions ; the hearing justice ruled that there were no genuin e issues of material fact in the case. The hearing justice acknowledged that the- 3

-

original declaration expressly prohibited the use of restaurants and that the second amendment changed that use to specifically allow for restaurant service . The hearing jus tice reviewed § 34

- 36.1

- 2.17 (d) and concluded that the statute was clear and unambiguous

. The hearing justice
held that the statute required a change in use to be approved by the unanimous consent of all unit

owners. Accordingly, the hearing justice gran ted plaintiffs ’ m otion for summary judgment and
declared that th e second amendment was invalid because unanimous consent from all unit owners was required to adopt the amendment and that no condominium units could be converted
into a restaurant and bar wit hout the unanimous consent of all unit owners. The defendant filed a timely notice of appeal.
Standard of Review This Court “review[s] a ruling on a motion for summary judgment de novo .” Pimentel v.
Deutsche Bank Nat ional Tr ust Co. , 174 A.3d 740, 743 (R .I. 2017). “We will affirm a [trial] court’s [summary judgment] decision only 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 par ty is entitled to judgment as a matter of law.” Newstone Devel o pment , LLC v. East Pacific , LLC , 140 A.3d 100, 103 (R.I. 2016). A matter that hinges on statutory interpretation is ripe for summary judgment. Progressive Cas ualty Ins urance Co. v. Dias , 151 A.3d 308, 312 n.6 (R.I. 2017). Furthermore, when reviewing the applicability of a statute, this Court interprets the statute de novo

. Id. at 311. Analysis Before this Court, defendant contends that the second amendment to the declaration does not requi re unanimous approval by all unit owners because it does not prohibit or materially
restrict the use , occupancy , or behavior within individually

- owned units , nor does it deprive- 4

-

minority

- interest unit owners of any property rights. The defendant further a rgues that the declaration always allowed a restaurant use because “ [t]he [d]eclaration plainly and unambiguously provides that ‘uses as may be allowed by the Zoning Ordinance of the City of Newport * * * shall also be allowed * * *.’” In response, plainti ffs argue that § 34

- 36.1

- 2.17(d) unambiguously requires unanimous approval of all condominium unit owners for an amendment to a declaration that changes a prior restricted use of any unit

. The plaintiffs argue that the second amendment changed the use of the units and therefore required unanimous approval. Lastly, plaintiffs contend that the language in
the declaration under the definition of retail use, which permits retail uses that are allowed under the Newport zoning ordinances , is only a general prov ision and does not prevail over the speci fic language of the declaration that prohibits commercial kitchens and food services. This Court reviews “questions of statutory interpretation de novo .” State v. Hazard , 68 A.3d 479, 485 (R.I. 2013) (quoting Camp bell v. State , 56 A.3d 448, 454 (R.I. 2012)). “In matters of statutory interpretation our ultimate goal is to give effect to the purpose of the act as intended by the Legislature.” Webster v. Perrotta , 774 A.2d 68, 75 (R.I. 2001). “It is well
settled th at when the language of a statute is clear and unambiguous, this Court must interpret the statute literally and must give the words of the statute their plain and ordinary meanings.” Alessi
v. Bowen Court Condominium , 44 A.3d 736, 740 (R.I. 2012) (quoting Waterman v. Caprio , 983 A.2d 841, 844 (R.I. 2009)).
T he disputed statute on appeal , § 34

- 36.1

- 2.17(d), titled “Amendment of declaration , ” provides that :

“ Except to the extent expressly permitted or required by other

provisions of this chapter, no amendm ent may create or increase special declarant rights, increase the number of units, change the boundaries of any unit, the allocated interests of a unit, or the uses- 5

- to which any unit is restricted , in the absence of unanimous consent of the unit owners .” (Emphasis added.)
We deem this statute to be clear and unambiguous , and th erefore we construe the language of the
statute in accordance with its plain and ordinary me aning. Alessi , 44 A.3d at 740. We conclude that § 34

- 36.1

- 2.17(d) clearly states that no amendment to a declaration may change the use to
which a unit or units is restricted without the unanimous approval of all unit owners.
I n the case at bar, the original declaration expressly prohibited a restaurant use. Specifically, Article 2.2 (ff) of the condominium declaration state d that “ NO commercial kitchens or the preparation of or the service of food for consumption onsite shall be allowed.” The
defendant , unilaterally and without the approval of all unit owners, adopted a second amendment

t hat deleted the language of Article 2.2 (ff)

. The second amendment of the declara tion indeed changed what was previously a re stricted use in the condominium to a permitted use. Therefore,
for this amendment to be valid, unanimous approval of all unit owne rs was required pursuant to § 34

- 36.1

- 2.17(d) , but was never achieved

. Thus, we conclude that the second amendment to the
declaration was invalid. Accordingly, we affirm the judgment of the Superior Court.
Conclusion For the reasons set forth herein, w e affirm the judgment of the Superior Court. The papers in this case may be remanded to the Superior Court.STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS

SUPREME COURT

– CLERK’S OFFICE
OPINION COVER SHEET

Title of Case Epic Enterprises LLC et al. v. The Bard Group, LLC.
Case Number No. 2017

- 334

- Appeal. (NC 16

- 487) Date Opinion Filed June 20, 2018
Justices Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ. Written By Associate Justice Maureen McKenna Goldberg Source of Appeal Newport County Superior Court
Judicial Officer From Lower Cour t Associate Justice Brian Van Couyghen

Attorney(s) on Appeal For Plaintiffs: Turner C. Scott, Esq. Roland F. Chase, Esq. For Defendant: Michael J. Richards, Esq.

SU

- CMS

- 02A (revised June 2016)