Supreme Court

Raymond D. Burt, Sr. : No. 2021-243-Appeal.

 No. 2021-244-Appeal. 

v. : (PC 11-463) 

John C. Furtado et al. : 

U.S. Bank National Association, as 

Trustee for Residential Asset 

Securities Corporation, Home 

Equity Mortgage Asset – Backed 

Pass – Through Certificates, Series 

2005-K510, Series 2006-E

: No. 2021-245-Appeal. 

 No. 2021-246-Appeal. 

 (PC 16-1572) 

 

v. : 

Raymond D. Burt et al. : 

Tammy L. Lacoste : No. 2021-247-Appeal.

 (PC 13-3802) 

v. : 

John C. Furtado 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. 

 

May 1, 2023 May 1, 2023
- 1 - 

 Supreme Court

 

Raymond D. Burt, Sr. : No. 2021-243-Appeal.

 No. 2021-244-Appeal. 

v. : (PC 11-463) 

John C. Furtado et al. : 

 

U.S. Bank National Association, as 

Trustee for Residential Asset 

Securities Corporation, Home 

Equity Mortgage Asset – Backed 

Pass – Through Certificates, Series 

2005-K510, Series 2006-E

: No. 2021-245-Appeal. 

 No. 2021-246-Appeal. 

 (PC 16-1572) 

 

v. : 

Raymond D. Burt et al. : 

Tammy L. Lacoste : No. 2021-247-Appeal.

 (PC 13-3802) 

v. : 

John C. Furtado et al. : 

Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ. 

O P I N I O N

Justice Robinson, for the Court. The appellants, Raymond D. Burt and 

Tammy L. Lacoste, appeal from the grant of six motions for summary judgment in 

three underlying cases. They contend that the motion justice erred by ordering 

reformation of the warranty deeds of both Mr. Burt and Ms. Lacoste and the 
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mortgage deed of Mr. Burt. That order of reformation was based on (1) the 

uncontested fact that the warranty deeds and the mortgage deed did not reflect the 

intent of the parties and (2) the inference that that fact was the product of mutual 

mistake. These consolidated appeals came before the Supreme Court pursuant to 

an order directing the parties to show cause why the issues raised in these appeals 

should not be summarily decided. After considering the parties’ written and oral 

submissions and after carefully reviewing the record, we are of the opinion that 

cause has not been shown and that these appeals may be resolved without further 

briefing or argument. For the reasons set forth in this opinion, we affirm the 

judgments of the Superior Court. 

I 

Facts and Travel1

In August 2005, Mr. Burt entered into a purchase and sales agreement with 

Dorothy Tondreau to purchase a piece of property located at 15 Standring Street, 

Cumberland, Rhode Island. In anticipation of that real estate closing, he obtained a 

mortgage in the amount of $189,000 from Homecomings Financial, LLC 

1

 As a result of the fact that we are confronted with three separate civil actions 

and a multitude of counts, the “Facts and Travel” section of this opinion will 

necessarily be somewhat lengthy. Nevertheless, in spite of the complex “travel” of 

these consolidated appeals (that complexity being largely the result of what we 

deem to be certain inappropriate counts in the appellants’ pleadings), it will 

become clear that the appeal itself can be resolved in a rather straightforward 

manner. 
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(Homecomings Financial). In the same time frame, Ms. Lacoste entered into a 

separate purchase and sales agreement with Ms. Tondreau to purchase the 

undeveloped piece of property at 19 Standring Street, which is adjacent to 15 

Standring Street. 

In preparation for the two closings, Ms. Tondreau’s attorney prepared a 

warranty deed reflecting the conveyance from Ms. Tondreau to Mr. Burt and 

another warranty deed reflecting the conveyance from Ms. Tondreau to Ms. 

Lacoste. The warranty deeds contained the proper legal descriptions of the 

respective properties, indicating that the property to be conveyed to Mr. Burt was 

lot 23 of the “Plan of Bluestone” and that the property to be conveyed to Ms. 

Lacoste was lots 21 and 22 of the “Plan of Bluestone.” 

Subsequently, however, while reviewing the warranty deeds, an employee of 

Nationwide Title & Escrow Company, Inc. (Nationwide) changed the legal 

descriptions of the real estate being conveyed.2 As a result, one warranty deed 

indicated that lot 21 of the “Plan of Bluestone” was being conveyed to Mr. Burt, 

while another warranty deed indicated that lots 22 and 23 of the “Plan of 

Bluestone” were being conveyed to Ms. Lacoste. Mr. Burt’s mortgage deed also 

2

 The record does not make it entirely clear which person employed by 

Nationwide allegedly made the erroneous changes in the legal descriptions—John 

C. Furtado (an attorney in the employ of Nationwide) or some other employee. 

For the purposes of these consolidated cases, however, that regrettable lack of 

clarity does not affect our analysis of the legal issues. 
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incorrectly described the 15 Standring Street property as lot 21 of the “Plan of 

Bluestone.” 

At the closing on September 20, 2005, which was conducted by John C. 

Furtado (an attorney in the employ of Nationwide and who was named as a 

defendant in most of the cases discussed infra), Ms. Tondreau signed the warranty 

deeds without recognizing the errors as to the descriptions of the properties. 

Similarly, Mr. Burt signed his mortgage deed, and both he and Ms. Lacoste signed 

their respective warranty deeds without recognizing that the property descriptions 

were incorrect. The warranty deeds and the mortgage deed, all containing the 

incorrect property descriptions, were recorded on September 22, 2005. 

Nationwide, acting as an agent for Fidelity National Title Insurance 

Company, Inc. (Fidelity), issued the following title insurance policies: (1) to Mr. 

Burt, insuring that “he had a fee simple interest, subject only to his mortgage to 

Homecomings;” (2) to Homecomings Financial, insuring that “it would have a 

valid first mortgage * * * at the conclusion of Burt’s purchase of [15 Standring 

Street];” and (3) to Ms. Lacoste, insuring that “she had a fee simple interest, free 

and clear of all encumbrances.” Each of the three title insurance policies was 

issued with the incorrect legal descriptions of the above-referenced properties. 

Mr. Burt and Ms. Lacoste proceeded to take possession of the 15 Standring 

Street and the 19 Standring Street properties, respectively. Additionally, it is 
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uncontested that “both the Town of Cumberland and the local fire district 

commenced in 2006 to send annual bills for ad valorem taxes assessed against the 

[properties],” which taxes Mr. Burt and Ms. Lacoste paid. 

Towards the end of 2008 or the beginning of 2009, Mr. Burt defaulted on his 

mortgage loan payments. Thereafter, on March 27, 2009, Harmon Law Offices, 

P.C. (Harmon) informed Mr. Burt by letter that it had been retained by GMAC 

Mortgage, LLC (GMAC) to foreclose on the mortgage. In the course of preparing 

to foreclose on Mr. Burt’s property, Harmon discovered that the legal descriptions 

of the properties in one or more of the warranty deeds were incorrect, as was the 

legal description in Mr. Burt’s mortgage deed. Harmon then suspended the 

foreclosure proceedings and filed a claim with Fidelity on behalf of GMAC 

pursuant to the lender’s title insurance policy. 

Fidelity proceeded to contact Nationwide in an effort to determine what 

might be done to correct the erroneous descriptions. As a result, in August 2009, 

Nationwide substituted the correct legal descriptions for the erroneous ones. Then, 

without informing Mr. Burt, Ms. Lacoste, or Ms. Tondreau about those 

substitutions, an employee of Nationwide re-recorded the updated warranty deeds 

as well as Mr. Burt’s mortgage deed in the Land Evidence Records of the Town of 

Cumberland. 
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In view of the above-described facts, Mr. Burt, Ms. Lacoste, and U.S. Bank, 

N.A. (U.S. Bank)3 each chose to commence individual civil actions in the 

Providence County Superior Court. In due course, six motions for summary 

judgment were granted, all culminating in the consolidated appeals before this 

Court.4 

A 

The Three Superior Court Cases 

1. The Burt Case (PC 11-463) 

 Although this civil action was actually commenced on January 26, 2011, the 

relevant complaint for our purposes is the third amended complaint (the 

complaint),5 which was filed on September 28, 2017 and named as defendants 

Nationwide, Mr. Furtado, Homecomings Financial, Fidelity, GMAC, and U.S. 

Bank. In Count One, Mr. Burt sought a judgment declaring that the re-recorded 

mortgage deed is void because it was not “signed or acknowledged” by him; he 

also sought an injunction preventing foreclosure of the 15 Standring Street 

3

 U.S. Bank was the holder of Mr. Burt’s mortgage deed and the owner of the 

associated promissory note. 

4

 The three Superior Court cases and the eventual six motions for summary 

judgment are described infra. 

5

 We note with dismay and disapproval that said third amended complaint 

contains some eighty separate paragraphs. See Fiorenzano v. Lima, 982 A.2d 585, 

589 (R.I. 2009) (commenting on “the inappropriately prolix nature of the 

complaint in [that] case”); see also id. at n.7. 
- 7 - 

property. In Count Two, Mr. Burt alleged that the alteration of the warranty deeds 

in 2009 constituted forgery. In Count Three, Mr. Burt alleged that the 2005 

mortgage deed and the accompanying promissory note are void because the rerecordation “constituted a renunciation, abandonment, vitiation, destruction, and 

voiding of the mortgage * * * and the note secured thereby.” 

 In Count Four, Mr. Burt sought damages against Nationwide for its failure to 

procure title insurance. In Count Five, Mr. Burt alleged that Nationwide and Mr. 

Furtado were negligent with respect to the 2005 preparation of his warranty deed 

and mortgage deed. In the first of the two counts entitled “CLAIM SIX,” Mr. Burt 

alleged that all the named defendants were negligent with respect to their actions 

relating to the 2009 corrections. In the second of the two counts entitled “CLAIM 

SIX - RESCISSION,” Mr. Burt alleged that, “based upon the fraud perpetrated 

upon Burt by Furtado, Nationwide Title and its employees” and their “material 

misrepresentation * * * [,] the real estate transfer deed of Tondreau, the promissory 

note between Burt and Homecomings and the mortgage deed from Burt to 

Homecomings must be rescinded.” Finally, in Count Seven, Mr. Burt alleged a 

violation of the Rhode Island Deceptive Trade Practices Act. 

 In response, Fidelity filed an answer denying Mr. Burt’s claims; it also filed 

a cross-claim for contribution and indemnification against Nationwide and Mr. 

Furtado. Similarly, U.S. Bank, Homecomings Financial, and GMAC filed an 
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answer denying Mr. Burt’s claims; they also filed cross-claims against Nationwide 

and Mr. Furtado for contribution and indemnification and alleging legal 

malpractice on the part of Mr. Furtado, negligence against Nationwide, and breach 

of contract against Nationwide and Mr. Furtado. Nationwide and Mr. Furtado filed 

an answer denying the pertinent allegations of Mr. Burt’s complaint. Nationwide 

and Mr. Furtado also filed cross-claims for contribution, indemnification, and 

negligence against U.S. Bank, Homecomings Financial, and GMAC; and they 

sought equitable relief against Mr. Burt—viz., that he be required to sign the 

above-referenced corrected documents. 

2. The Lacoste Case (PC 13-3802) 

 On July 31, 2013, Ms. Lacoste filed a complaint against Nationwide, Mr. 

Furtado, and Fidelity. In Count One, Ms. Lacoste sought a judgment declaring that 

the 2009 warranty deed was void because it was not “signed or acknowledged” by 

Ms. Tondreau. In Count Two, she alleged that the “material alteration of the Deed 

after it was recorded in 2005 * * * was done with the intent to deceive and defraud 

those persons interested in and relying upon the accuracy and integrity of the 

Cumberland land evidence records constitut[ing] forgery * * *.” In Count Three, 

Ms. Lacoste sought damages against Nationwide for its failure to procure title 

insurance. In Count Four, she alleged that Nationwide was negligent for having 

changed the legal descriptions of her property in 2005. Finally, in Count Five, 
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entitled “Claim on Policy,” Ms. Lacoste alleged that she “is entitled to 

compensation by Fidelity * * * as a result of her not owning the premises the title 

to which is insured by [her title] Policy.” 

 In due course, each of the named defendants filed an answer denying the 

applicable claims against them. Thereafter, Fidelity amended its answer to include 

cross-claims for indemnification and contribution against Nationwide and Mr. 

Furtado. 

3. The U.S. Bank Case (PC 16-1572)6 

 On April 8, 2016, U.S. Bank filed a complaint against Mr. Burt, Ms. 

Lacoste, Bank of America, and Joseph F. Penza, Jr.7 On May 6, 2016, U.S. Bank 

filed an amended complaint, in Count One of which it sought “reformation of the 

warranty deeds executed by Dorothy Tondreau to * * * Burt and Lacoste to 

substitute and include the correct legal descriptions” as well as “reformation of the 

mortgage deed executed by * * * Burt to substitute and include the correct legal 

description * * *.” 

 In Count Two, U.S. Bank sought: (1) “a declaration that the warranty deed 

to the defendant Burt * * * as reformed, confirms and establishes that title to lot 

numbered Twenty-three (23), 15 Standring St[reet], Cumberland, Rhode Island is 

6

 In due course, the U.S. Bank case was consolidated with the Burt case. 

7

 Mr. Penza was named as a defendant in his capacity as the administrator of 

the estate of Ms. Tondreau, who had passed away on July 21, 2011. 
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fully vested in defendant Burt only and has been since the date of execution of the 

deed, September 20, 2005;” (2) “a declaration that the warranty deed to the 

defendant Lacoste * * * as reformed, confirms and establishes that title to lots 

numbered Twenty-one (21) and Twenty-two (22) on Standring St[reet], 

Cumberland, Rhode Island is fully vested in defendant Lacoste only and has been 

since the date of execution of the deed, September 20, 2005;” and (3) “a 

declaration that the mortgage deed executed by the defendant Burt * * * as 

reformed, confirms and establishes that the mortgage encumbers lot numbered 

Twenty-three (23) and that [U.S. Bank] is the holder of a valid first mortgage in lot 

numbered Twenty-three (23), superior to all other liens and encumbrances * * * 

since the date of the execution of the mortgage, September 20, 2005.” 

 On August 12, 2016, Mr. Burt and Ms. Lacoste jointly answered the 

complaint, denying that there was a mutual mistake and asserting that U.S. Bank 

was not entitled to reformation. On September 28, 2017, they subsequently 

amended their answer to include a counterclaim against U.S. Bank seeking 

rescission of “all transactions,” based on a misrepresentation of a material fact; and 

they also filed a cross-claim against Mr. Penza (the estate administrator) seeking 

rescission of the warranty deeds, the mortgage deed, and the promissory note on 

the same basis. 
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B 

The Six Motions for Summary Judgment 

1. The Motion for Summary Judgment of U.S. Bank as Plaintiff in 

PC 16-1572 

 On January 31, 2019, U.S. Bank filed a motion for summary judgment on 

both counts of its complaint. A hearing on the motion was held on May 8, 2019, 

and a bench decision granting the motion was issued on January 31, 2020. The 

motion justice held that the original warranty deed and the mortgage deed had 

materially failed “to correctly reflect the intent of the parties and that the wrong 

legal description was made part of those instruments and that there was a mutual 

mistake.” She reasoned that Mr. Burt “intended to buy 15 Standring Street and did 

buy 15 Standring Street but for the erroneous legal description.” She further 

reasoned that Mr. Burt “validated the terms of the note and mortgage through his 

conduct”—including making “payments under the note and mortgage for many 

years.” 

 Accordingly, the motion justice ordered that the original warranty deeds and 

Mr. Burt’s mortgage deed be reformed to reflect the correct property descriptions. 

The motion justice also granted U.S. Bank’s request for a declaration to the effect 

that it “can foreclose on the 2005 reformed mortgage.” On June 14, 2021, final 

judgment entered in favor of U.S. Bank as to all counts. 
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2. The Motion for Partial Summary Judgment of U.S. Bank, Homecomings 

Financial, and GMAC as Defendants in PC 11-463 

 With respect to Mr. Burt’s third amended complaint in PC 11-463, on 

January 31, 2019, U.S. Bank, Homecomings Financial, and GMAC filed a motion 

for partial summary judgment as to Count One (seeking to void Mr. Burt’s 

re-recorded 2009 mortgage deed); Count Three (seeking to void Mr. Burt’s 2005 

mortgage deed and promissory note); and the second of the two counts entitled 

“CLAIM SIX” (seeking rescission of “all transactions” on the basis of a 

“Misrepresentation of a Material Fact”). A hearing on the motion was held on 

May 8, 2019, and a bench decision granting the motion was issued on January 31, 

2020. 

 The motion justice first held that Counts One and Three were moot because, 

in the U.S. Bank case (PC 16-1572), she had ordered reformation of the 2005 

warranty deed and the mortgage deed. The motion justice next addressed the 

second Count Six of Mr. Burt’s third amended complaint, which alleged fraud and 

sought rescission of: (1) the 2005 warranty deed; (2) the promissory note between 

Mr. Burt and Homecomings Financial; and (3) the mortgage deed from Mr. Burt to 

Homecomings Financial. The motion justice held that there was “no fraud in 

2005,” and she then concluded that “there can be no claim for rescission based on 

fraud when there was no fraud.” 
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 On June 14, 2021, final judgment as to Counts One, Three, and Six 

(Rescission) entered in favor of U.S. Bank, Homecomings Financial, and GMAC.8 

3. The Motion for Summary Judgment of Fidelity as Defendant in 

PC 11-463 

 On April 4, 2019, Fidelity filed a motion for summary judgment as to all 

counts in Mr. Burt’s third amended complaint. A hearing on the motion was held 

on October 30, 2019, and a bench decision granting the motion was issued on 

January 31, 2020. The motion justice held that, pursuant to the title insurance 

policy, “any claim that the insured makes against the insurer must be made under 

the policy and be subject to its terms.” She reasoned that, because Mr. Burt had 

failed to make a claim under his policy, “regardless of what caused the incorrect 

legal description or how the parties want to categorize that incorrect legal 

description, [Mr. Burt] still has not alleged a claim under the insurance policy 

because neither mutual mistake [n]or drafting errors are listed among those types 

of claims for which Fidelity can be held liable.” 

 On June 14, 2021, final judgment entered in favor of Fidelity as to all claims 

asserted against it. 

8

 The first of the two counts in Mr. Burt’s complaint entitled “CLAIM SIX” 

(alleging negligence) was not explicitly referred to in the judgment. However, the 

reasoning of the motion justice concerning the elements of the tort of negligence 

that is summarized in the next sub-section of this opinion should be noted. 
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4. The Motion for Summary Judgment of Nationwide and Mr. Furtado as 

Defendants in PC 11-463 

On August 25, 2020, Nationwide and Mr. Furtado filed a motion for summary 

judgment as to all counts in Mr. Burt’s third amended complaint. A hearing was 

held on the motion on December 3, 2020.9 On that same day, the motion justice 

first ruled that the law of the case doctrine governed Counts One, Two, Three, and 

the second Count Six. In granting the parties’ motion for summary judgment as to 

Count Five and the first Count Six (Negligence), the motion justice stated: 

“The real heart of this case as it relates to 

Nationwide and Mr. Furtado are the negligence counts. 

And it is absolutely clear that the plaintiff must show a 

duty owed, a breach of the duty, damages, and that the 

damages were caused by the defendants’ breach. Here, 

we have an obvious duty. We have an admitted breach 

of duty. But what we don’t have is damages. The 

damages that Mr. Burt lists as damages flowing from the 

negligence simply are not. Closing costs, mortgage 

payments, construction costs, construction materials, 

none of that has anything to do with the negligence that 

resulted in Mr. Burt owning land that he didn’t -- that he 

actually didn’t own but he thought he owned and he 

acted as if he owned it and utilized it for a number of 

years. There simply is no connection between those 

costs or expenses and the defendants’ negligence here. 

There are no damages that result from that negligence.” 

9

 Prior to the hearing, Mr. Burt voluntarily dismissed with prejudice Counts 

Four and Seven in his third amended complaint. 
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On June 14, 2021, final judgment entered in favor of Nationwide and Mr. 

Furtado as to Counts One, Two, Three, Five, and the first Count Six.10 

5. The Motion for Summary Judgment of Fidelity as Defendant in 

PC 13-3802 

 On August 13, 2020, Fidelity filed a motion for summary judgment as to all 

pertinent counts in Ms. Lacoste’s complaint. A hearing on that motion was held on 

December 3, 2020. At the hearing, Ms. Lacoste confirmed that she was dismissing 

Counts One and Two against Fidelity. Accordingly, the motion justice addressed 

the only remaining claim against Fidelity, Count Five, entitled “Claim on Policy.” 

 First, the motion justice recognized that Count Five “simply alleges that 

Lacoste does not own the premises described in the owner’s title policy that was 

issued to her by Fidelity.” She added that Count Five “further alleges that Lacoste 

is entitled to compensation by Fidelity as a result of her not owning the premises 

which were insured by the policy; and, therefore, Lacoste demands judgment for 

the amount stated in the policy, plus interest and costs provided by law.” 

However, the motion justice then held that Count Five was moot because good title 

had been restored to Ms. Lacoste pursuant to the reformation of the warranty deeds 

that was ordered in the U.S. Bank case. Accordingly, the motion justice granted 

10 The final judgment makes no explicit mention of the second Count Six, 

wherein Mr. Burt sought rescission of the challenged deeds and the promissory 

note. It should be noted, however, that the motion justice did rule that that count 

was governed by the law of the case doctrine. 
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Fidelity’s motion for summary judgment. On June 14, 2021, final judgment 

entered in favor of Fidelity as to all counts against it. 

6. The Motion for Summary Judgment of Nationwide and Mr. Furtado as 

Defendants in PC 13-3802 

 On December 29, 2020, Nationwide and Mr. Furtado filed a motion for 

summary judgment as to all pertinent counts in Ms. Lacoste’s complaint. A 

hearing on that motion was held on May 5, 2021.11 On that same day, the motion 

justice first held that Count One, which sought a declaration that the 2009 warranty 

deed be voided, was moot because she had already ordered that the 2005 warranty 

deed be reformed. The motion justice then granted summary judgment as to Count 

Two, which alleged that the 2009 re-recordation of the updated warranty deed 

constituted forgery in that it purportedly “was done with the intent to deceive and 

defraud those persons interested in and relying upon the accuracy and integrity of 

the Cumberland land evidence records * * *.” In granting the motion for summary 

judgment of Nationwide and Mr. Furtado as to Count Two, the motion justice held 

that there was “zero evidence that anyone did anything with an intent to deceive 

anyone.” 

 As to Count Four, which sought damages for negligence, the motion justice 

first observed that Ms. Lacoste had indicated that her damages consisted of 

11 Prior to the hearing, Ms. Lacoste voluntarily dismissed with prejudice 

Counts Three and Five as to Nationwide and Mr. Furtado. 
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“closing costs, interest, the money that she has paid on property taxes, [and] 

attorneys’ fees, without specifying what those attorneys’ fees are.” She then 

reasoned: 

“[T]here could have been damages that Ms. Lacoste 

could have incurred in relation to * * * the errors relating 

to the deed * * *. But those have not been asserted here. 

The damages that she would be entitled to would have to 

do with fixing the error, and the damages that are claimed 

by [Ms. Lacoste] don’t have anything to do with 

addressing the title problems that were created in 2005 or 

any of the activities of 2009. And so, the costs are the -- 

the things that she’s claiming as damages cannot be said 

to have been caused by Mr. Furtado or Nationwide. 

Because she cannot demonstrate damages, the negligence 

claim must fail as a matter of law.” 

The motion justice then granted Nationwide and Mr. Furtado’s motion for 

summary judgment as to Count Four. 

Final judgment entered as to all counts against Nationwide and Mr. Furtado 

on June 14, 2021. 

C 

The Consolidated Appeals 

Timely appeals having been filed as to all of the above-referenced 

judgments, said appeals were consolidated by order of this Court. 
- 18 - 

II 

Issues on Appeal 

 The only issues properly before this Court are whether the motion justice 

erred (1) when she concluded that the 2005 warranty deeds and mortgage deed 

failed to reflect the intent of the parties and were the product of a mutual mistake 

and (2) when she proceeded to order that those deeds be reformed so as to reflect 

the correct property descriptions. 

III 

Standard of Review 

It is well established that “[t]his Court reviews the granting of a motion for 

summary judgment on a de novo basis.” Air Distribution Corp. v. Airpro 

Mechanical Company, Inc., 973 A.2d 537, 540 (R.I. 2009); see also Planned 

Environments Management Corp. v. Robert, 966 A.2d 117, 121 (R.I. 2009); Cullen 

v. Lincoln Town Council, 960 A.2d 246, 248 (R.I. 2008). And while “reviewing a 

hearing justice’s decision to grant summary judgment, this Court employs the same 

standards as were used by the hearing justice.” Air Distribution Corp., 973 A.2d at 

540; see also O’Sullivan v. Rhode Island Hospital, 874 A.2d 179, 182 (R.I. 2005). 

At the conclusion of that reviewing process, we “will affirm a hearing justice’s 

grant of summary judgment if we conclude that no genuine issue of material fact 

exists and that the moving party is entitled to judgment as a matter of law.” 
- 19 - 

Narragansett Electric Company v. Saccoccio, 43 A.3d 40, 44 (R.I. 2012) (internal 

quotation marks omitted); see also Credit Union Central Falls v. Groff, 966 A.2d 

1262, 1267 (R.I. 2009). It is also important to bear in mind that “the party 

opposing a summary-judgment motion 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.” Credit Union Central Falls, 966 A.2d at 1267 (internal quotation marks 

omitted); see also Mutual Development Corporation v. Ward Fisher & Company, 

LLP, 47 A.3d 319, 323 (R.I. 2012); Air Distribution Corp., 973 A.2d at 540-41. In 

addition, “[w]here the facts suggest only one reasonable inference, the [motion] 

justice may properly treat the question as a matter of law.” HK & S Construction 

Holding Corp. v. Dible, 111 A.3d 407, 411-12 (R.I. 2015) (quoting Shappy v. 

Downcity Capital Partners, Ltd., 973 A.2d 40, 45 (R.I. 2009)); see also Kennedy v. 

Providence Hockey Club, Inc., 119 R.I. 70, 77, 376 A.2d 329, 333 (1977). 

IV 

Analysis 

The primary issue before us is whether the motion justice erred in ordering 

reformation of the two warranty deeds and the mortgage deed.12

12 With the exception of their contention concerning the “scrivener’s error” 

issue (which we address infra), in their statement filed pursuant to Article I, Rule 

12A of the Supreme Court Rules of Appellate Procedure, Mr. Burt and Ms. 
- 20 - 

There is a presumption that “a written instrument as drawn and executed, 

especially a deed, correctly states the real intent of the parties.” Vanderford v. 

Kettelle, 75 R.I. 130, 142, 64 A.2d 483, 488 (1949). However, there are occasions 

when judicial reformation of such an instrument is appropriate. Such judicial 

reformation of a deed or similar document is appropriate only when there has been 

a mutual mistake on the part of both parties. See, e.g., Hopkins v. Equitable Life 

Assurance Society of United States, 107 R.I. 679, 685, 270 A.2d 915, 918 (1970) 

(“To warrant reformation it must appear that by reason of mistake, common to 

both parties, their agreement fails in some material respect correctly to reflect their 

prior completed understanding.”); see also Gorman v. Gorman, 883 A.2d 732, 740 

(R.I. 2005) (“For a contract to be subject to judicial reformation, the court must 

first find a mutual mistake.”); Vanderford, 75 R.I. at 142, 64 A.2d at 489.13 See 

generally Joseph M. Perillo, Contracts § 9.31 at 342-43 (7th ed. 2014) 

(“[M]isunderstanding, or mistake can result in a record that does not reflect the 

Lacoste do not raise any issues as to the granting of Fidelity’s motion for summary 

judgment in either the Burt case or the Lacoste case. They also do not address the 

dismissal of their negligence counts against Nationwide. As such, we need not and 

shall not address those issues in this opinion. See, e.g., Estate of Meller v. Adolf 

Meller Co., 554 A.2d 648, 654 (R.I. 1989) (stating that this Court expects that “the 

briefs before us will contain all the arguments that the parties wish us to consider 

* * *”); see also McGarry v. Pielech, 108 A.3d 998, 1004-05 (R.I. 2015). 

13 “A party seeking reformation * * * must prove a mutual mistake of a 

material term * * * by clear and convincing evidence.” Merrimack Mutual Fire 

Insurance Company v. Dufault, 958 A.2d 620, 624 (R.I. 2008). 
- 21 - 

parties’ agreement. Reformation is the remedy by which records are rectified to 

conform to the actual agreement of the parties. At the simplest level it is the 

mechanism for the correction of typographical and other similar inadvertent errors 

in reducing an agreement to a record.”) (footnotes omitted). 

Before us, the appellants14 focus their attention on the requirement that there 

must be a mutual mistake in the document(s) at issue before reformation can 

properly be ordered by a trial court. They assert that the motion justice erred in her 

determination that the 2005 warranty deeds and the mortgage deed failed to reflect 

the intent of the parties and were the product of mutual mistake. They point out 

that neither they nor Ms. Tondreau made the underlying mistake; they assert that 

the “error was caused by Tondreau’s escrow agent (Nationwide and Furtado), who, 

without Tondreau’s authority * * * altered the descriptions in the deeds.” Mr. Burt 

and Ms. Lacoste additionally contend that “the existence of mutual mistake is a 

question of fact,” and they assert that the motion justice erred because there was no 

clear and convincing evidence of a mutual mistake made by the parties. 

In response, U.S. Bank, Homecomings Financial, and GMAC15 assert that 

the motion justice “properly held that there are no genuine issues as to any material 

fact and that the Appellees are entitled to judgment as a matter of law as there is no 

14 Mr. Burt and Ms. Lacoste filed a joint Rule 12A statement. 

15 U.S. Bank, Homecomings Financial, and GMAC filed a joint Rule 12A 

statement. 
- 22 - 

question that Burt intended to buy the Property and did buy the Property but for the 

erroneous legal descriptions.” They further assert that, “[a]lthough Nationwide 

Title caused this mutual mistake between the parties, it does not render the deed or 

the Mortgage void, as it is evident through the parties’ conduct that Burt intended 

to buy the Property and did buy the Property for which he intended.” 

Nationwide and Mr. Furtado16 likewise argue that the motion justice did not 

err in granting summary judgment against Mr. Burt and Ms. Lacoste because 

“there is no dispute as to what the intent of the parties was at the time of the 

closing on September 20, 2005.” They further assert that “[t]he fact that the 

mistake was made by a third party does not render either of the deeds or the 

mortgage void in this particular case because of the specific intentions of all of the 

parties, as well as their subsequent actions after the September 20, 2005 closing.” 

The term “mutual mistake” has frequently been defined by this Court. See, 

e.g., Dubreuil v. Allstate Insurance Co., 511 A.2d 300, 302-03 (R.I. 1986) (“A 

mutual mistake is one common to both parties wherein each labors under a 

misconception respecting the same terms of the written agreement sought to be 

[reformed].”); see also Merrimack Mutual Fire Insurance Company v. Dufault, 

958 A.2d 620, 624 (R.I. 2008) (“A mutual mistake is not merely the existence of a 

common error, but rather involves a shared misconception relating to the parties’ 

16 Nationwide and Mr. Furtado filed a joint Rule 12A statement. 
- 23 - 

intent.”); Nunes v. Meadowbrook Development Co., Inc., 824 A.2d 421, 425 (R.I. 

2003); Vanderford, 75 R.I. at 142, 64 A.2d at 488; see generally Moffett, 

Hodgkins, & Clarke Company v. City of Rochester, 178 U.S. 373, 385 (1900). 

As for appellants’ argument that the error in the deeds was created by the 

actions of Nationwide and/or one of its employees and so should not be said to 

have constituted a mutual mistake made by Mr. Burt or Ms. Lacoste or Ms. 

Tondreau, the plain blunt fact is that settled law does not support that contention. 

It is undisputed that, at the time of the closing, Ms. Tondreau intended to sell and 

Mr. Burt intended to buy the property located at 15 Standring Street and Ms. 

Tondreau intended to sell and Ms. Lacoste intended to buy the property located at 

19 Standring Street.17 

Mr. Burt and Ms. Lacoste’s conduct after the closing further evidenced their 

intent to purchase, and own, their respective properties. It is uncontested that, 

during the substantial period of time which passed until the errors in the deeds 

were discovered, (1) both Mr. Burt and Ms. Lacoste had been paying the taxes 

assessed by the Town of Cumberland and the local fire district for their respective 

properties; (2) Mr. Burt had been paying his mortgage payments for approximately 

four years; and (3) Mr. Burt had removed an existing structure on his property and 

had begun to construct a new one. 

17 It is undisputed that the warranty deeds and the mortgage deed contained the 

erroneous legal descriptions for the respective properties. 
- 24 - 

 In our view, it is entirely irrelevant that the actual mistake in the legal 

descriptions was not made by the parties, but rather by an employee of Nationwide, 

who was in effect serving as a scrivener.18 What is determinative is that the 

mistake became “mutual” at the time when the buyers and the seller signed the 

respective deeds. The mistake was “mutual” in the sense that all the pertinent 

parties (Mr. Burt, Ms. Lacoste, and Ms. Tondreau) shared in the mistaken belief 

that the legal descriptions in the warranty deeds and the mortgage deed were 

accurate. This concept has been nicely summarized in the venerable and 

frequently cited opinion from the New York Court of Appeals in the seminal case 

of Born v. Schrenkeisen, 17 N.E. 339 (N.Y. 1888): 

“Where there is no mistake about the agreement and the 

only mistake alleged is in the reduction of that agreement 

to writing, such mistake of the scrivener, or of either 

party, no matter how it occurred, may be corrected.”19

Born, 17 N.E. at 341. 

18 It is clear from the record that the changes in the legal descriptions that were 

made by an employee of Nationwide technically constituted a “scrivener’s error,” 

even if Mr. Furtado at his deposition did not endorse that particular terminology 

and even if those changes were the product of a volitional act by an employee of 

Nationwide rather than being the result of a mere slip of the pen. 

19

 See also Harris v. Uhlendorf, 248 N.E.2d 892, 894 (N.Y. 1969); Parchen v. 

Chessman, 164 P. 531, 533 (Mont. 1917) (“When it is said * * * that equity will 

not lend its aid to reform an instrument for mistake unless it is a mutual mistake, 

the terms ‘mutual mistake’ are used in contradistinction to a unilateral mistake or 

the mistake of one party to the instrument only. If the error occurs through the 

mistake of the scrivener, it is none the less a mistake * * *.”); 27 Samuel Williston 

& Richard A. Lord, A Treatise on the Law of Contracts § 70:93 at 469 (4th ed. 

2020) (“In contract law, a scrivener’s error, like a mutual mistake, occurs when the 
- 25 - 

Professor Dan B. Dobbs has made the same point with admirable clarity: 

“The fact that neither of the bargaining parties 

themselves made the written mistake is no bar to 

reformation. The mistake of a draftsman, whether he is 

one of the parties or merely a scrivener, is adequate 

grounds for relief, provided again that the writing fails to 

reflect the parties’ true understanding. The mistake is 

‘mutual’ in the sense * * * [that] there is a previous 

agreement to which the [document] may be reformed, 

and courts have no trouble in agreeing in this situation on 

reformation.” 2 Dan B. Dobbs, Law of Remedies

§ 11.6(1) at 747 (2d ed. 1993).20

Although there is no opinion from this Court that articulates precisely the same 

principle as that articulated in Born v. Schrenkeisen and in Professor Dobbs’s 

treatise, it is clear to us (1) that it is a principle that is generally acknowledged in 

this country and (2) that it is consistent with common sense. See Peak v. United 

States, 353 U.S. 43, 46 (1957) (“That seems to us to be the common sense of the 

matter; and common sense often makes good law.”). 

 There is uncontested evidence in the record which clearly and convincingly 

demonstrates that the 2005 warranty deeds and mortgage deed failed to correctly 

intention of the parties is identical at the time of the transaction but the written 

agreement does not express that intention because of that error; this permits a court 

acting in equity to reform an agreement.”). 

20

 See generally Henry L. McClintock, Handbook of the Principles of Equity 

260 (2d ed. 1948) (noting, inter alia, that “[i]n many cases the mistake is really 

that of a third party, the scrivener or draftsman who drew the instrument; the only 

mistake of the parties being in accepting it as a correct expression of their 

agreement”). 
- 26 - 

express the agreement of the parties and, therefore, were the product of mutual 

mistake. By reforming the deeds, the motion justice merely made the mortgage 

deed and the warranty deeds “convey the meaning that both parties intended.” 

Vanderford, 75 R.I. at 142, 64 A.2d at 489. Accordingly, we are of the opinion 

that the motion justice did not err by ordering reformation of the mortgage deed 

and the warranty deeds.21 It is further our opinion that summary judgment was 

appropriately granted with respect to each of the six motions for summary 

judgment, which the motion justice considered with laudable meticulousness. See

HK & S Construction, 111 A.3d at 411-12; see also Deutsche Bank National Trust 

Company for Registered Holders of Ameriquest Mortgage Securities, Inc. v. 

McDonough, 160 A.3d 306, 311 (R.I. 2017) (“[W]here the facts suggest only one 

reasonable inference, the [motion] justice may properly treat the question as a 

matter of law.”) (internal quotation marks omitted). 

21 Mr. Burt and Ms. Lacoste have contended that the existence of mutual 

mistake vel non is a question of fact not to be resolved at the summary judgment 

stage. However, while the question of mistake in a given document may 

sometimes be a question of fact requiring a fact-finder to make credibility 

determinations, the appellants’ pleadings in this case foreclose any such need for 

fact-finding. These pleadings allege over and over again that the deeds at issue 

contain materially erroneous legal descriptions. That being the case, the Superior 

Court’s decision to order reformation was both appropriate and laudable. 
- 27 - 

V

Conclusion 

For the reasons set forth in this opinion, we affirm the judgments of the 

Superior Court. The record may be returned to that tribunal. 
SU-CMS-02A (revised November 2022)

STATE OF RHODE ISLAND

SUPREME COURT – CLERK’S OFFICE

Licht Judicial Complex

250 Benefit Street

Providence, RI 02903

OPINION COVER SHEET

Title of Case

Raymond D. Burt, Sr. v. John C. Furtado et al. 

U.S. Bank National Association, as Trustee for 

Residential Asset Securities Corporation, Home 

Equity Mortgage Asset – Backed Pass – Through 

Certificates, Series 2005-K510, Series 2006-E v. 

Raymond D. Burt et al. 

Tammy L. Lacoste v. John C. Furtado et al.

Case Number

No. 2021-243-Appeal. 

No. 2021-244-Appeal. (PC 11-463) 

No. 2021-245-Appeal. 

No. 2021-246-Appeal. (PC 16-1572) 

 

No. 2021-247-Appeal. (PC 13-3802) 

Date Opinion Filed May 1, 2023

Justices Suttell, C.J., Goldberg, Robinson, Lynch Prata, and 

Long, JJ.

Written By Associate Justice William P. Robinson III

Source of Appeal Providence County Superior Court 

Judicial Officer from Lower Court Associate Justice Melissa E. Darigan

Attorney(s) on Appeal

For Appellants:

Mark L. Smith, Esq.

For Appellees:

Joseph F. Penza, Jr., Esq.

Brandon P. Ruggieri, Esq.

Zachary W. Berk, Esq.