Frederick Carrozza, Sr. v. Michael Voccola, in his capacity as of the Estate of Frederick Carrozza, Jr.Frederick Carrozza, Sr. v. Michael Voccola, in his capacity as of the Estate of Frederick Carrozza, Jr.
The “conduct and cooperation of the parent[]” provide context in assessing whether DCYF‘s efforts are reasonable. See In re Gabrielle D., 39 A.3d 655, 667 (R.I.2012) (quoting In re Jose Luis R.H., 968 A.2d at 883); In re Natalya C., 946 A.2d 198, 203 (R.I.2008). The respondent admitted that he had never called DCYF‘s assigned caseworker, Ms. Jawharjian, to inquire about the welfare of his child. He testified that he believed he should not speak to DCYF, since “[y]ou don‘t talk to the prosecutors.” Moreover, he testified that he did not believe he could call DCYF through the phone at the ACI, despite Ms. Jawharjian‘s testimony that she gave respondent her business card and that DCYF accepted collect calls from the ACI. Instead, respondent contended that he had regular but indirect contact with the foster parents through a fellow inmate—the brother of both the foster father and Lyric‘s mother—and also through Lyric‘s paternal grandmother. The trial justice was well within his authority to weigh evidence regarding respondent‘s circuitous means of contact, and further, determine the reasonableness of DCYF‘s efforts in light of respondent‘s conduct and cooperation with the department. See In re Jose Luis R.H., 968 A.2d at 883.
We conclude that the trial justice had sufficient evidence to determine that DCYF‘s actions constituted reasonable efforts. The record details the services DCYF offered and those in which the respondent participated. Given the evidence of DCYF‘s actions, this Court cannot conclude that the trial justice clearly erred in finding that the department had met its burden to make reasonable efforts under
IV
Conclusion
For the reasons explained in this opinion, we affirm the decree terminating the respondent‘s parental rights. The record shall be remanded to the Family Court.
Lauren E. Jones, Esq., Providence, for Plaintiffs.
Alan I. Baron, Pro Hac Vice, for Defendants.
Present: SUTTELL, C.J., GOLDBERG, ROBINSON, and INDEGLIA, JJ.
OPINION
Justice ROBINSON, for the Court.
For the reasons set forth in this opinion, we affirm the judgment of the Superior Court in part and vacate that judgment in part.
I
Facts and Travel
This case began on November 15, 2002, when Frederick Sr. filed a petition in the Superior Court seeking to impose a resulting trust on four properties, title to which had been in the name of his son, Frederick Carrozza, Jr. (Frederick Jr.), at the time of the son‘s death.2 For present purposes, we need not rehash all of the facts relative to the resulting trust litigation; those facts are recited in detail in our opinion affirming the Superior Court‘s grant of summary judgment in favor of the counterclaimants, wherein this Court ruled that there was no resulting trust. See Carrozza v. Voccola, 962 A.2d 73 (R.I.2009). We once again3 recall the words that Homer has Ulysses utter at the conclusion of Book XII of The Odyssey: “It goes against my grain to repeat a tale told once, and told so clearly.”4 Mindful of Homer‘s lament, we refer the interested reader to our first Carrozza opinion. See Carrozza, 962 A.2d at 74-75.
On remand, the Superior Court conducted a jury-waived trial over the course of two days in June of 2010, during which several witnesses testified. Thereafter, on December 17, 2010, the trial justice rendered his decision holding the counterclaim defendants liable for slander of title, which decision is the focus of this appeal. On February 18, 2011, a hearing was held in the Superior Court on the counterclaim defendants’ motion for a new trial; that motion was denied.
We shall next proceed to discuss the significant testimony and other evidence from the slander of title trial.
At trial, Paul Hogan, a real estate appraiser who was qualified as an expert, testified on behalf of the counterclaimants as to the highest value attained by each of the properties at issue between November 15, 2002, when the notices of lis pendens were filed, and February 2, 2009, when clear title to the properties was restored; he also testified as to the value of the properties at the end of that period, in February of 2009. He testified that the value of the property located at Bellevue Avenue in Newport was $1,835,000 in February of 2009 and $2,310,000 at its highest value, in September of 2005. According to Mr. Hogan‘s testimony, the value of the property located at Prospect Hill Street in Newport was $200,000 in February of 2009 and $250,000 at its highest value, in September of 2005; he added that the value of
Attorney Voccola, the executor of the estate of Frederick Jr., testified that the notices of lis pendens prevented him from consummating a transaction at a time when he was offered two and a half million dollars to sell two of the properties at issue.5 He also stated that he did not attempt to sell the other two properties because there “was no reason to go through the motions” since he was “unable to provide a clean, marketable and insurable title” due to the notices of lis pendens.
In his bench decision after the trial concluded, the trial justice stated that, although he considered most of Frederick Sr.‘s testimony to be a “knowing fabrication,” he had observed a “shining moment of truth” when, in response to having been asked why he had initiated a lawsuit against Frederick Jr., his response was as follows: “Because it was my money. I thought I could get it back.” Frederick Sr. further indicated in his testimony that he wanted to get the properties back because he did not have any additional properties to provide to his other three children. The trial justice referred to these statements made by Frederick Sr. as “telling and determinative” with respect to his eventual ruling. Specifically, the trial justice found Frederick Sr.‘s testimony to reflect a clear indication that he had not filed suit “to establish and recover property rightfully his, rather he filed suit to collect a debt that he believed arose in 1998 when [Frederick Jr.] sold” a fifth property (located on Malbone Road in Newport) which was not a subject of this dispute.6
It is important to note that, with respect to the four properties actually at issue in this case, this Court, in its earlier decision, recognized that Frederick Sr. had “testified that he had contributed part of the purchase price” of both the property located at Bellevue Avenue in Newport and the property located at Post Road in Warwick, but that he had provided “conflicting accounts about” those acquisitions. Carrozza, 962 A.2d at 77. We held that there was a lack of evidence showing that Frederick Sr. “intended to retain a specific share of either property” and that, accordingly, a resulting trust had not arisen. Id. We further held that the evidence “reinforce[d]
After the trial had concluded, the trial justice found in favor of the counterclaimants and held that Frederick Sr., as well as his three living children (see infra), were liable for slander of title. The counterclaimants were awarded compensatory damages of $630,000; in addition, they were awarded prejudgment interest from the date the suit was filed in 2002, expenses of $24,080.40, and attorneys’ fees of $151,267.7 Frederick Sr. alone was found liable for punitive damages in the amount of $845,000. The trial justice based his calculation of compensatory damages upon the diminution in the value of the properties during the period of time when the notices of lis pendens were in place, which was measured by the difference between the highest value of the four properties at issue during that period of time (which occurred in September of 2005) and the value of the properties when clear title was restored in February of 2009. He stated that over that period “each of the properties lost substantial value.”
Frederick Sr.‘s living children were not parties to the lawsuit in 2002 at the time the notices of lis pendens were filed. The trial justice determined that, thereafter, Phillip “voluntarily” joined the case, whereas Freida and Laurie were joined as necessary parties.8 The trial justice relied on
After judgment had been entered, the counterclaim defendants filed a timely notice of appeal. The counterclaim defendants also filed a motion for a new trial, which was denied.10
Issues on Appeal
On appeal, the counterclaim defendants raise several issues. First, the counterclaim defendants contend that the trial justice misconceived Frederick Sr.‘s testimony regarding his reasons for bringing the lawsuit and overlooked evidence in the course of finding that the counterclaimants had proven their slander of title claim. Second, the counterclaim defendants argue that the trial justice erred in basing the amount of compensatory damages upon the diminution of the property values between 2005 and 2009 because, according to the counterclaim defendants, there was no evidence that the counterclaimants had a buyer for any of the properties or that any actual loss was incurred. Instead, the counterclaim defendants urge that, if the finding of liability is upheld, this Court should hold that the damages must be based upon the difference in the value of the properties between the time the notices of lis pendens were filed in 2002 and the time at which clear title was restored in 2009; they contend that, under this valuation method, the properties would be deemed not to have lost any value. Third, the counterclaim defendants argue that the trial justice erred in awarding prejudgment interest from the date the suit was filed, rather than from the date of injury, which the trial justice found to be when the properties reached their peak market value in September of 2005. Additionally, the counterclaim defendants contend that the trial justice erred in holding Phillip, Freida, and Laurie liable for slander of title in view of the fact that they were not part of the lawsuit at the time the notices of lis pendens were filed. They further contend that the trial justice erred in finding that Frederick Sr. had the ability to pay punitive damages because the trial justice “failed to take [Frederick Sr.‘s] current financial condition into account” when assessing punitive damages. (Emphasis in original.) Finally, the counterclaim defendants posit that the amount of punitive damages awarded was excessive as a matter of law.
III
Standard of Review
It should be borne in mind that the instant case was tried before a trial justice sitting without a jury; accordingly, we recall the basic principle of appellate jurisprudence that “[t]his Court views deferentially the factual findings of a trial justice sitting in a nonjury case.” Manchester v. Pereira, 926 A.2d 1005, 1011 (R.I.2007); see also Cahill v. Morrow, 11 A.3d 82, 86 (R.I.2011). We are also mindful that “[i]f, as we review the record, it becomes clear to us that the record indicates that competent evidence supports the trial justice‘s findings, we shall not substitute our view of the evidence for his [or hers] even though a contrary conclusion could have been reached.” Grady v. Narragansett Electric Co., 962 A.2d 34, 41 (R.I.2009) (internal quotation marks omitted); see also Wellington Condominium Association v. Wellington Cove Condominium Association, 68 A.3d 594, 599 (R.I. 2013); Nardone v. Ritacco, 936 A.2d 200, 204 (R.I.2007). Consequently, we will not disturb a trial justice‘s factual findings or credibility determinations “unless they are clearly erroneous or * * * the trial justice misconceived or overlooked material evidence or * * * the decision fails to do substantial justice between the parties.” Cahill, 11 A.3d at 86 (internal quotation marks omitted); see Dowdell v. Bloomquist, 847 A.2d 827, 830 (R.I.2004); see also Banville v. Brennan, 84 A.3d 424, 429-30 (R.I.2014); Grady, 962 A.2d at 41. We similarly afford deference to a trial justice‘s “resolution of mixed questions of
IV
Analysis
A
Slander of Title—Malice
The first issue with which we must grapple involves the tort of slander of title—a cause of action long recognized by the common law. See TXO Production Corp. v. Alliance Resources Corp., 187 W.Va. 457, 419 S.E.2d 870, 878 (1992), aff‘d on other grounds, 509 U.S. 443 (1993); see also Hopkins v. Drowne, 21 R.I. 20, 20-23, 41 A. 567, 567-68 (1898) (recognizing the cause of action for slander of title). It should be emphasized that slander of title is an intentional tort, and in this case it was alleged that four separate intentional tortious acts were committed.
To prevail in a slander of title action, a plaintiff must prove by a preponderance of the evidence: “(1) that the alleged wrongdoer uttered or published a
Additionally, we have noted that “express malice need not be proved * * * and may properly be inferred from the language used or the character of the act committed.” Peckham v. Hirschfeld, 570 A.2d 663, 667 (R.I.1990) (internal quotation marks omitted). In an early opinion in which this Court recognized the cause of action for slander of title, we stated with respect to the malice requirement:
“[T]hat it is necessary to prove it as an independent fact we do not agree. Malice is a purpose existing only in the mind, and is not ordinarily susceptible of proof as an independent fact. It is that feeling of personal hostility or ill-will towards another which only manifests itself in language or conduct, and hence is best shown by the character of the language or conduct. In other words, it naturally and legitimately springs out of and is to be inferred from such language or conduct as naturally tends to deceive, injure, and damage another, and for which there is no legal excuse.” Hopkins v. Drowne, 21 R.I. 20, 23, 41 A. 567, 568 (1898); see DeLeo, 546 A.2d at 1346; see also 40 Causes of Action Slander of Title § 29 at 441 (2d ed. 2009) (“Because malice exists in the mind of the defendant, it is rarely susceptible of direct proof” therefore “the plaintiff must rely on circumstantial evidence * * *“)
It is essential to note that malice may not properly be inferred from the “mere fact that a person asserts a claim to the property that is unfounded.” Peckham, 570 A.2d at 667. The “plaintiff must also show that the defendant could not honestly have believed in the existence of the right he claimed, or at least that he had no reasonable or probable cause of believing so.” Id. (internal quotation marks omitted); see also Belliveau Building Corp. v. O‘Coin, 763 A.2d 622, 630 (R.I.2000) (stating that a party is privileged to “assert a property interest based upon an ultimately unfounded claim without incurring liability for slander of title—provided the party asserting the property interest did so in good faith“).
On appeal, the counterclaim defendants argue that Frederick Sr. had a “colorable claim” to an interest in the properties at issue at the time that he filed the notices of lis pendens. Accordingly, the counterclaim defendants posit, the counterclaimants could not meet the required standard of proof because they could not show that Frederick Sr. acted with malice when he
The counterclaim defendants further posit that the trial justice misconceived critical testimony when he found that “Frederick Sr. just wanted his money back on the Malbone Road property.” Specifically, they argue that the trial justice erroneously determined that Frederick Sr.‘s testimony with respect to his reasons for bringing suit was in reference to the money owed to him for the Malbone Road property; according to the counterclaim defendants, Frederick Sr. was actually referring to the money he allegedly contributed to the purchase of the properties at issue. Finally, the counterclaim defendants aver that the trial justice impermissibly shifted the burden of proof off the counterclaimants and onto them. With respect to the latter contention, they point to the trial justice‘s requirement that Frederick Sr. “produce old financial records” to support his testimony that he contributed to the purchase price of the properties at issue; they then point to the trial justice‘s subsequent finding that, “[a]t trial no evidence was produced that Frederick Carrozza, Sr. contributed to the purchase of any of the properties in question.” The counterclaim defendants argue that the trial justice should instead have required the counterclaimants to “disprove” Frederick Sr.‘s testimony regarding the purchase of the properties at issue by showing how Frederick Jr. paid for the properties.
To rebut the arguments made by the counterclaim defendants, the counterclaimants argue that malice can be found when notices of lis pendens are filed for a reason other than claiming an interest in the property, such as to thwart development or to try to collect a debt. They contend that the evidence at trial established that the notices of lis pendens in the instant case were filed “without a good faith belief in the truth of the predicate facts and for an improper purpose, namely, to collect a debt.” The counterclaimants point out in their brief that there was evidence that Frederick Jr. had access to funds by virtue of “banking relationships,” personal loans, and “trading stock;” moreover, they note that the properties were all in Frederick Jr.‘s name. For these reasons, the counterclaimants urge this Court to affirm the decision of the trial justice.
In a well-reasoned and thorough decision, the trial justice made forty-seven findings of fact and then proceeded to apply the law to those findings of fact, ultimately holding the counterclaim defendants liable for slander of title. He stated in pertinent part as follows:
“The [c]ourt finds that the counterclaimants have proved by a fair preponderance of the evidence that Frederick Carrozza, Sr. not only had no good faith basis in claiming that he owned any of
[the] properties [at issue], either legally or equitably, but also, as he stated in his own words in his testimony, he recorded the lis pendens not to protect a legitimate property interest but to recover money he believed to be owed to him by Frederick, Jr. and therefore he acted with legal malice, as that term is used in the context of a slander of title action.”
In reaching his conclusion, the trial justice relied specifically on this Court‘s decisions in Montecalvo v. Mandarelli, 682 A.2d 918 (R.I.1996), Peckham v. Hirschfeld, 570 A.2d 663 (R.I.1990), DeLeo v. Anthony A. Nunes, Inc., 546 A.2d 1344 (R.I.1988), and Hopkins v. Drowne, 21 R.I. 20, 41 A. 567 (1898). The trial justice referenced the fact that Frederick Sr. gave two separate and inconsistent accounts relative to the transfer of the Malbone Road property to Frederick Jr. The trial justice found neither account provided by Frederick Sr. to be true; rather the trial justice found that Frederick Sr. had transferred that property in order to protect it “in the event of a claim against [him] resulting from [an] * * * altercation” in which he was involved. In fact, the trial justice found that “much of the testimony at trial by [Frederick Sr.] was a knowing fabrication.” The trial justice attributed Frederick Sr.‘s “ill will” toward his son to Frederick Jr.‘s sale of the Malbone Road property; in discussing Frederick Sr.‘s “ill will” toward his son, the trial justice further referenced Frederick Sr.‘s belief that Frederick Jr. had married and had adopted a daughter “to spite him.” Despite his finding that Frederick Sr.‘s testimony was largely not credible, the trial justice detected “one shining moment of truth“—namely, when Frederick Sr. was asked by his attorney why he filed suit and he replied: “[I]t was my money and I thought I could get it back.” In reaching his final conclusion, the trial justice stated:
“[Frederick Sr.‘s] own admission and clear declaration of his motive for filing the lis pendens and the lawsuit is telling and determinative to this [c]ourt‘s ruling. [Frederick Sr.] did not file suit to establish and recover property rightfully his, rather he filed suit to collect a debt that he believed arose in 1998 when [Frederick Jr.] sold the Malbone property and used the proceeds to payoff [sic] a margin call resulting from [Frederick Jr.‘s] disregard of his father‘s advice.”
As this Court has previously stated, “whether * * * conduct amount[s] to malice is a question of fact.” Arnold Road Realty Associates, LLC, 873 A.2d at 126. We would reiterate, before beginning our analysis of the trial justice‘s finding of malice in the instant case, that we give deference to the factual findings of a judge sitting without a jury. Manchester, 926 A.2d at 1011. Consequently, we will not disturb a trial justice‘s factual findings or credibility determinations “unless they are clearly erroneous or * * * the trial justice misconceived or overlooked material evidence or * * * the decision fails to do substantial justice between the parties.” Cahill, 11 A.3d at 86 (internal quotation marks omitted). We perceive nothing in the case before us which would lead us to conclude that the trial justice‘s findings were either clearly erroneous or misconceived or overlooked material evidence when he held that the counterclaim defendants were liable for slander of title due to the filing of the notices of lis pendens.11
Moreover, the counterclaim defendants are in error when they contend that the burden of proof was somehow misapplied by the trial justice when he asked them to produce financial records to show that Frederick Sr. did contribute to the purchase price of the properties at issue. Contrary to the counterclaim defendants’ contention, the burden of proof remained on the counterclaimants to show, by a preponderance of the evidence, that Frederick Sr. acted with malice because he knew he had no legitimate interest in the properties at issue when he filed the notices of lis pendens and that, accordingly, he had no “reasonable or probable cause”
The counterclaim defendants also take issue with the trial justice‘s finding that Frederick Sr.‘s testimony was largely not credible, except when he gave the following response to his own attorney‘s inquiry at trial as to why he initiated the lawsuit in the first place: “It was my money and I thought I could get it back.” The trial justice characterized the latter statement as a “shining moment of truth” and found that, when Frederick Sr. referred to getting his money back, he was referring to the Malbone Road property—as opposed to any of the four properties at issue in the instant case.13 That finding contributed to the trial justice‘s conclusion that Frederick Sr. acted with malice when he filed the notices of lis pendens. The counterclaim defendants argue that Frederick Sr.‘s statement about getting his money back was in fact a reference to the money he allegedly contributed to the purchase prices of the four properties in this case. However, the counterclaim defendants are unable to point to any definitive evidence to support that assertion; they direct this Court‘s attention only to portions of Frederick Sr.‘s testimony immediately before and after the above-quoted comment about getting his money back. The testimony which precedes and follows
Finally, the counterclaim defendants argue that the trial justice erred when he found that Frederick Sr. acted with malice because: (1) Frederick Sr. did not file the notices of lis pendens to “thwart development;” and (2) Frederick Sr.‘s motive in filing the notices of lis pendens was not to injure Frederick Jr.‘s estate, but rather was to benefit the counterclaim defendants. According to the counterclaim defendants, in view of the fact that there was no allegation that Frederick Sr.‘s purpose in filing the notices of lis pendens was to thwart development, the trial justice‘s reliance on this Court‘s opinions in Montecalvo v. Mandarelli, 682 A.2d 918 (R.I.1996), and DeLeo v. Anthony A. Nunes, Inc., 546 A.2d 1344 (R.I.1988), was in error. The counterclaim defendants are correct that in DeLeo this Court determined that filing a notice of lis pendens with the purpose of (in the trial justice‘s language) “thwart[ing] the development of the property” was malicious. See DeLeo, 546 A.2d at 1346-47. However, neither our decision in DeLeo nor our decision in Montecalvo stands for the proposition that malice can be proven only by showing that the party who filed the notice of lis pendens did so in order “to thwart the development of the property.” See id.; see also Montecalvo, 682 A.2d at 923-25. In fact, in Montecalvo, where we upheld a finding by the trial justice that the plaintiff acted maliciously because, when filing the lis pendens, she was merely attempting to recoup an alleged debt, we expressly stated that “a lis pendens may not be used as a substitute for an attachment to collect an alleged indebtedness.” Montecalvo, 682 A.2d at 925; see also Countrywide Home Loans, Inc. v. Howard, 240 S.W.3d 1, 4 (Tex.App. 2007) (“If the suit seeks a property interest only to secure the recovery of damages or other relief that the plaintiff may be awarded, the interest is merely collateral and will not support a lis pendens.“). It was the trial justice‘s determination that that was precisely what Frederick Sr. did in this case, and we perceive no clear error in that determination. Moreover, the counterclaim defendants’ attempt to circumvent the malice issue by claiming that Frederick Sr. could not have acted with malice when he filed the notice of lis pendens because he sought only to help himself and not to harm Frederick Jr.‘s estate is a distinction without a difference. See Arnold Road Realty Associates, LLC, 873 A.2d at 126 (stating that malice is “established by showing that a party made a false statement, with full knowledge of its falsity, for the purpose of injuring the complainant(s)“) (internal quotation marks omitted). Consequently, the counterclaim
B
Slander of Title—Damages
1. Compensatory Damages
The first contention with respect to damages which the counterclaim defendants raise is that the trial justice used an inappropriate method of calculating the compensatory damages in this case. In addressing the counterclaim defendants’ argument, we find it helpful to begin by discussing how the trial justice awarded damages.
The trial justice made findings of fact with respect to the change in value of the four properties at issue during the time period in which they were subject to the notices of lis pendens. The trial justice‘s findings of fact as to the value of the properties were derived from the testimony of Mr. Hogan, a real estate appraiser. Mr. Hogan testified that the value of the property located at Bellevue Avenue in Newport was $1,835,000 in February of 2009, when the notices of lis pendens were removed, and $2,310,000 at its highest value, in September of 2005. According to Mr. Hogan‘s testimony, the value of the property located at Prospect Hill Street in Newport was $200,000 in February of 2009 and $250,000 at its highest value, in September of 2005; he added that the value of the property located on Post Road in Warwick was $320,000 in 2009 and $365,000 at its highest value in 2005. Finally, Mr. Hogan testified that the value of the River Farm Condominium located in West Warwick was $280,000 in February of 2009 and $340,000 at its highest value in 2005.
In order to determine the damages, the trial justice subtracted the value of the properties at the point in time when the notices of lis pendens were removed from their value at the time when the properties were at their highest value during the period in which they were subject to the notices of lis pendens. Using this formula he found that: (1) the Bellevue Avenue property had declined in value by $475,000; (2) the Prospect Hill Street property declined in value by $50,000; (3) the Post Road property declined in value by $45,000;14 and (4) the River Farm Condominium declined in value by $60,000. Adding those numbers together, the trial justice arrived at a grand total of $630,000 in compensatory damages.15
On appeal, the counterclaim defendants contend that the trial justice should have calculated damages by comparing the value of the properties on the date the notices of lis pendens were filed (November 15, 2002) and the date they were removed (February 2, 2009). They point out that
The counterclaimants contend in their brief that it is “disingenuous” of the counterclaim defendants, “having employed every legal stratagem and tactic they could muster to prevent the [counterclaimants] from selling the properties, [to] now argue there was no real effort to sell the properties.”16 (Internal quotation marks omitted.) They contend that the title to the properties was rendered unmarketable by the notices of lis pendens and that, consequently, they should not be faulted for failing to sell unmarketable properties. In support of their argument, they direct this Court‘s attention to the testimony of Attorney Michael Voccola (the executor of the estate of Frederick Jr.), who stated that he saw “no reason to go through the motions” of attempting to sell any of the properties when he could not “provide a clean, marketable and insurable title.” The counterclaimants argue that, as a result of the fact that the filing of the notices of lis pendens had rendered each of the properties unmarketable, they were not able to take advantage of rising market conditions in 2005. Moreover, they deem it important for this Court to bear in mind that the counterclaim defendants “thwarted” all attempts to quash the notices of lis pendens throughout the course of the proceedings in Superior Court, even after summary judgment had been awarded in the counterclaimants’ favor.
In order to prevail on a slander of title claim, a plaintiff must necessarily prove that he or she has sustained an “actual pecuniary loss.” Peckham, 570 A.2d at 666-67 (internal quotation marks omitted); see also Wheeler, 21 A.3d at 441; Keystone Elevator Co. v. Johnson & Wales University, 850 A.2d 912, 923 (R.I.2004). Unlike damages recoverable in most other causes of action, without proof that special damages (i.e., a pecuniary loss) were incurred, “a prima facie case of slander of title will not be made.” 40 Causes of Action Slander of Title § 13 at 421 (2d ed. 2009). Consequently, in order for counterclaimants to prove their slander of title claim, they were required to show that they incurred an actual injury as a result of the filing of the notices of lis pendens. The parties do not dispute that such an injury is required for damages to be awarded in a slander of title action; rather, they dispute how such an injury should be measured when determining whether it is sufficient to meet the requirement of special damages. Succinctly put, the counterclaim defendants are contending that any pecuniary loss based on the change in fair market value of the properties should be calculated by comparing the value of the properties on the date when the notices of lis pendens were filed with their value on the date when they were removed, unless there was evidence that a buyer existed who refused to purchase the property due to the notices of lis pendens; only in the latter situation, according to the counterclaim defendants, may a court calculate damages by looking to a date other than the date of filing and the date of removal of the notices of lis pendens.
After carefully reviewing the record in this case, it is our judgment that, in the context of this slander of title claim, the trial justice‘s method of calculating damages was appropriate and, in contrast with the counterclaim defendants’ proposed system of calculating damages, properly accounted for the real harm suffered by the counterclaimants.17 We begin by noting that “[t]he thrust of the tort of * * * slander of title is protection from injury to the salability of property.” Truck Insurance Exchange v. Bennett, 53 Cal.App.4th 75, 61 Cal.Rptr.2d 497, 503 (1997). As such, “pecuniary loss in this context includes that from the impairment of vendibility or value by the disparagement * * *” Rite Aid Corp. v. Lake Shore Investors, 298 Md. 611, 471 A.2d 735, 742 (1984); see also 53 Corpus Juris Secundum Libel and Slander; Injurious Falsehood § 321 at 418 (2005) (“Special damages may be demonstrated by proof
We are in complete agreement that, in a slander of title action like the one before us, the party bringing the slander of title claim need not show that he or she had a specific purchaser for the property in order for the damages to be calculated from the date the properties involved in the case were at their highest value during the time period when the properties were subject to the notices of lis pendens. In the instant case, if we were to follow the counterclaim defendants’ suggestion and use the date the notices of lis pendens were filed as the start date to determine damages, it would lead to a true inequity—namely, the quite likely18 result of no pecuniary loss being incurred by the counterclaimants in spite of the fact that the counterclaimants were most probably rendered unable to sell or refinance their property for a period of approximately seven years solely due to the malicious acts of the counterclaim defendants.19
decline to follow a method of calculating damages that could result in such inequity.20
Our confidence in our conclusion that the trial justice‘s method for calculating pecuniary loss in this case was not erroneous is reinforced by our awareness of the fact that the counterclaim defendants committed an intentional tort which required the counterclaimants to show malice on the part of the counterclaim defendants—a not insignificant requirement, which the counterclaimants were able to meet. See Arnold Road Realty Associates, LLC v. Tiogue Fire District, 873 A.2d 119, 126 (R.I. 2005) (stating that the malice required for a slander of title claim is “an intent to deceive or injure“) (internal quotation marks omitted); Montecalvo v. Mandarelli, 682 A.2d 918, 923 (R.I. 1996) (stating that, to show malice in a slander of title action, it must be proven that “a party made a false statement, with full knowledge of its falsity, for the purpose of injuring the complainant(s)“). Moreover, our confidence in our decision is further buttressed by the fact that the counterclaimants were in fact injured. The striking metaphorical language employed by the trial justice in addressing the issue of compensatory damages is noteworthy; in rendering his bench decision, he stated that “the properties were held hostage by the lis pendens.” (Emphasis added.) Typically, “the purpose of a remedy is * * * to place the person in the position the person would have occupied had the wrong not occurred.” James M. Fischer, The Puzzle of the Actual Injury Requirement for Damages, 42 Loy. L.A. L. Rev. 197, 197, 198 (2008) (“With the award, the person‘s position, from a balance sheet perspective, is the same as if the person had not been injured in the first place.“) (internal quotation marks omitted). If the notices of lis pendens had not been filed, the counterclaimants in this case would have been able to freely decide what to do with the properties—whether it was to sell the properties, refinance, or give the properties as gifts. The counterclaim defendants’ filing of the notices of lis pendens effectively took those opportunities off the table for a long period of time. We hold, therefore, that, in this case, in order to remedy the harm caused to the counterclaimants while their property was “held hostage” by the malicious acts of the counterclaim defendants, the trial justice appropriately ruled that the counterclaimants suffered an actual pecuniary loss which was to be calculated by comparing the highest value of the properties during the time period they were subject to the notices of lis pendens with the value of the properties on the date the notices of lis pendens were removed.
We also deem it worth noting that, if we were to agree with the counterclaim defendants’ proposed method of determining pecuniary loss in a slander of title action, we would create a situation whereby the owner of a property encumbered by a notice of lis pendens would be placed in the position of having to constantly attempt to sell a property even though he or she could not
Accordingly, we hold that, the trial justice in this case did not err in the method he employed to determine whether there had been a pecuniary loss necessary for a slander of title action—namely, by comparing the fair market value of the properties at the time they reached their highest value during the period they were subject to the notices of lis pendens with the fair market value of the properties at the time the notices of lis pendens were removed, regardless of whether there was evidence of a “ready, willing, and able” buyer.
2. Prejudgment Interest22
The trial justice, in awarding damages on the slander of title claim, ruled that the counterclaimants were entitled to prejudgment interest to be calculated from November 15, 2002—the date on which the notices of lis pendens were filed. In support of his award the trial justice relied on
Section 9-21-10(a) reads, in pertinent part, as follows:
“In any civil action in which a verdict is rendered or a decision made for pecuniary damages, there shall be added by the clerk of the court to the amount of damages interest at the rate of twelve percent (12%) per annum thereon from the date the cause of action accrued, which shall be included in the judgment entered therein.” (Emphasis added.)
As the counterclaimants point out, the statute expressly requires prejudgment interest to accrue “from the date the cause of action accrued.” As discussed in Part IV.B.1, supra, the properties at issue in this case were (in the particularly apt words of the trial justice) “held hostage” by the counterclaim defendants from the moment the notices of lis pendens were filed. Consequently, a cause of action for slander of title accrued at the moment the notices of lis pendens were filed; as such, we hold that
3. Punitive Damages
As was previously noted, the trial justice awarded $630,000 in compensatory damages, along with $151,267 in legal fees, $24,080.40 in expenses, as well as prejudgment interest running from November 15, 2002 against all of the counterclaim defendants, whereas he awarded $845,000 in punitive damages against Frederick Sr. alone.
“[P]unitive damages are justified in light of the following factors: Frederick, Sr.‘s admission that he lied under oath when he claimed ownership of the four properties and, as the [c]ourt found, that most of his testimony was not worthy of belief. The [c]ourt is also taking into account prevarications on the witness stand and throughout the course of the prosecution of the case itself, including [the] filing of affidavit and the like. Also, the [c]ourt finds and takes into account the failure of [Frederick Sr.] to commence a civil action against [Frederick Jr.] while he was still alive. Also the [c]ourt takes into account the number and variety of what I found to be baseless claims, including partnership, breach of confidential relationship, express trust, implied trust, resulting trust, also the [counterclaim defendants‘] refusal throughout the course of the litigation to discharge the lis pendens. Also, the [c]ourt considers the assertion of the claims only after [Frederick Jr.‘s] lips were sealed by death, and as I stated, the tenacity in pursuing the claims despite total lack of proof and absence of other documentary evidence. Also, the [c]ourt considers the [counterclaim defendants‘] improper motive to collect many times over a debt that [Frederick Sr.] allegedly believed was due from [Frederick Jr.], the visiting of harm not upon [Frederick Jr.] but upon his widow and adopted daughter who were deprived of their rightful inheritance for more than seven years and also the [counterclaim defendants‘] admittedly perjurious assertion of their claims and the evidence that the [counterclaim defendants] were motivated by ill will fed by a reservoir of hostility against [Frederick Jr.] and against the widow and daughter whom [Frederick Sr.] believed [Frederick Jr.] had married, as to the widow, in violation of his promise to him and that [Frederick Jr.] had adopted the daughter to spite [Frederick Sr.].”
The trial justice concluded that all of the reasons articulated in the just-quoted passage, when considered in the aggregate, justified an award of punitive damages; and he cited to this Court‘s opinions in Peckham, 570 A.2d at 669 and DeLeo, 546 A.2d at 1348.
The trial justice proceeded to take into account Frederick Sr.‘s ability to pay punitive damages. He noted that Frederick Sr. testified that: (1) he had “acquired wealth over his lifetime;” (2) that he owned a business called “Coin-o-Matic;” (3) that all of Frederick Jr.‘s money “came from him;” and (4) that Frederick Sr. and Frederick Jr. had “money on the street”25 and had other investments as well—including ownership of stocks such as Oxford Healthcare, which Frederick Sr. sold for a profit (which the trial justice stated had also been testified to by “the investment banker and the accountant“). The trial justice additionally noted that Frederick Sr. testified on cross-examination that he owned real estate such as “the property at the Point Judith lighthouse,” a house on Ocean Road in Narragansett, and a house in Coventry “with a substantial amount of acreage—I think the figure was 80 acres—all of which was developable.” The trial
Rhode Island recognized punitive damages “as far back as 1890 [in] Kenyon v. Cameron, 17 R.I. 122, 20 A. 233 (1890) * * *.” Greater Providence Deposit Corp. v. Jenison, 485 A.2d 1242, 1244 (R.I. 1984).26 Punitive damages are awarded, not to compensate a plaintiff for his or her injuries, but rather to “punish the offender and to deter future misconduct.” Id.; see also Palmisano v. Toth, 624 A.2d 314, 318 (R.I. 1993); DeLeo, 546 A.2d at 1348; Exemplary Damages in the Law of Torts, 70 Harv. L. Rev. 517, 522 (1957) (“As a purpose of exemplary damages, punishing the defendant is closely related to the purpose of deterring him and others from further offenses.“) (internal quotation marks omitted).27 We have consistently held that “punitive damages are proper only in situations in which the defendant‘s actions are so willful, reckless, or wicked that they amount to criminality”28 and that the question of whether adequate facts exist to meet that standard and support an award of punitive damages is a question of law, which this Court reviews de novo. Jenison, 485 A.2d at 1244; see Sherman v. McDermott, 114 R.I. 107, 108, 329 A.2d 195, 196 (1974); Pharmacy Services, Inc. v. Swarovski North America Ltd., No. 04-72-T, 2006 WL 753055, at *6 (D.R.I. Mar. 21, 2006); see also Palmisano, 624 A.2d at 318 (“An award of punitive damages is considered an extraordinary sanction and is disfavored in the law, but it will be permitted if awarded with great caution and within narrow limits.“). However, in the instant case, Frederick Sr. does not challenge the finding of the trial justice that this is a case in which an award of punitive damages is appropriate. Instead, Frederick Sr. contends only: (1) that the trial justice misconceived the evidence when assessing his ability to pay; and (2) that the award of punitive damages was excessive. We are mindful, however, that such determinations are confided to the sound discretion of the trial justice, and we will not alter a ruling absent convincing evidence of an abuse of that discretion. Jenison, 485 A.2d at 1244 (“Once the court has determined the case to be a proper one for punitive damages, whether the plaintiff is entitled to such an award is discretionary upon the finder of fact.“); see Sherman, 114 R.I. at 108-09, 329 A.2d at 196.
i. Frederick Sr.‘s Ability to Pay
Frederick Sr.‘s first contention with respect to the trial justice‘s award of punitive damages is that the trial justice inaccurately assessed his ability to pay. Frederick Sr. alleges that, once a trial justice decides to consider the ability of a defendant to pay punitive damages, “his award cannot withstand appeal if it is
The counterclaimants remind us that any findings by the trial justice with respect to credibility or the weight of the evidence are entitled to deference, and they point to the fact that the trial justice found Frederick Sr.‘s testimony to be largely a “knowing fabrication.” They further point out that in this case “[t]he trial Justice was not carried away by passion or prejudice.” Moreover, the counterclaimants direct our attention to the fact that the trial justice was aware of the law with respect to punitive damages in Rhode Island since he cited to both Peckham, 570 A.2d at 663 and DeLeo, 546 A.2d at 1344. They further contend that there was sufficient evidence to support the trial justice‘s determination that Frederick Sr. was able to pay the punitive damages awarded; they note that, even though Frederick Sr. had the opportunity to submit evidence about his then-current financial situation, he chose not to avail himself of that opportunity.
Our precedent in this area of the law is clear; we have held that proof of ability to pay is not “a condition precedent” for the awarding of punitive damages. Sherman, 114 R.I. at 110, 329 A.2d at 197. We have specifically dealt with the issue on numerous occasions, but our opinions in Castellucci v. Battista, 847 A.2d 243 (R.I. 2004), and Greater Providence Deposit Corp. v. Jenison, 485 A.2d 1242 (R.I. 1984), are particularly on point. In Jenison, one of the defendants contended that it was error for the trial justice to award punitive damages without taking into account his ability to pay. Jenison, 485 A.2d at 1244. We rejected that contention and stated that “logic demand[s] that a defendant carr[ies] the burden of showing his modest means, facts particularly within his power, if he wants this matter considered in mitigation of damages.” Id. at 1245. We proceeded to hold that the defendant had been aware that punitive damages were being sought and still failed to introduce any evidence with respect to his inability to pay and that therefore, “he should [not] now be heard to complain about [his] absence or paucity.” Id.
The defendant in Castellucci, like the defendant in Jenison, contended “that a plaintiff should be required to present a
We perceive no difference between the case before us and Jenison or Castellucci. The counterclaimants had no duty to present evidence of Frederick Sr.‘s ability to pay; rather, Frederick Sr. had the duty to present evidence that would tend to demonstrate his inability to satisfy a punitive damages award. He made a choice not to present any convincing evidence of what he contends were his empty pockets. Accordingly, we find ourselves in complete agreement with the following statement made by the counterclaimants in their brief:
“Fred Sr. chose not to offer evidence of his current financial condition. He made a tactical decision that evidence of his wealth was helpful to his theory of the case: that he, Fred Sr., was the source of everything Fred Jr. accumulated over the course of his life and, in particular the source of the money for the 4 properties. It is too late for Fred Sr. to complain that he did not offer evidence of the shallowness of his pockets and he cannot shift the burden of having to prove the depth of his financial reservoir to the [counterclaimants].”
We note that in the instant case the trial justice was the fact-finder, and there is no indication in the record that he was susceptible to “passion and prejudice.” Reccko v. Criss Cadillac Co., 610 A.2d 542, 546 (R.I. 1992) (internal quotation marks omitted); see also Exemplary Damages in the Law of Torts, 70 Harv. L. Rev. at 530 (“[A] judge has wider experience with wrongdoers [than a jury] and is familiar with the normal scope and size of awards. The flexibility which exemplary damages bring to the admonitory function of tort law can better be achieved by the judge than by the jury.“). Additionally, determinations of credibility and the weight of the evidence are left to the fact-finder and we will not disturb the trial justice‘s findings when there is no convincing evidence that he abused his discretion. See State v. Paola, 59 A.3d 99, 104 (R.I. 2013) (“[A] trial justice, being present during all phases of the trial, is in an especially good position to evaluate the facts and to judge the credibility of the witnesses“) (internal quotation marks omitted); see also Cahill v. Morrow, 11 A.3d 82, 86 (R.I. 2011). After a thorough review of the evidence that Frederick Sr. alleges was misconceived by the trial justice, we can perceive nothing that would lead us to conclude that the trial justice misconceived
ii. The Amount of Punitive Damages
Frederick Sr. also argues that the punitive damages award was excessive. He notes that this Court has, in the past, reduced such awards, and he contends that the punitive damages award in the instant case was disproportionate to the compensatory damages award because, he argues (as the counterclaim defendants argued with respect to the compensatory damages), the counterclaimants in the instant case suffered no damages. Accordingly, it is Frederick Sr.‘s argument that the punitive damages awarded in this case “shock[ ] the conscience and should be struck down in [their] entirety * * *.” He further avers that, even if this Court upholds the compensatory damages award (which we have done), the punitive damages are still excessive. The counterclaimants, in response, claim that there is not so great a discrepancy between the compensatory damages and the punitive damages in this case as to “shock the conscience.”
Mindful of the fact that “punitive damages are imprecise and elusive of review,” we have held that a jury award of punitive damages (or in this case the award by a trial justice) may be “set aside * * * if the amount clearly appears to be excessive,” “shocks the conscience” or appears to represent “passion and prejudice” rather than an “unbiased judgment.” Zarrella v. Robinson, 460 A.2d 415, 418 (R.I. 1983); Cady v. IMC Mortgage Co., 862 A.2d 202, 220 (R.I. 2004) (internal quotation marks omitted); Minutelli v. Boranian, 668 A.2d 317, 319 (R.I. 1995) (internal quotation marks omitted). We bear constantly in mind the importance of the fact that the trial justice is in a better position than this Court to assess the testimony of the witnesses and determine credibility, and we “do not lightly disagree with the findings of the trial justice on the matter of * * * punitive damages.” Minutelli, 668 A.2d at 319. Nevertheless, we consider the $845,000 punitive damages award to be excessive. It is our judgment that, if we reduce the punitive damages award by half, it is still “adequate to punish” Frederick Sr. and deter future misuse of notices of lis pendens. Id.; see DeLeo, 546 A.2d at 1348 (affirming the decision of a trial justice to reduce a jury‘s punitive damages award from $75,000 to $30,000 because the award was “grossly excessive” and “such an amount was not needed to deter [the individuals involved in the case] or others from conducting themselves similarly in the future“) (internal quotation marks omitted); see also Reccko, 610 A.2d at 546 (reducing a punitive damages award of $50,000 to $25,000). Accordingly, we hold that Frederick Sr. is liable for $422,500 in punitive damages.
C
Slander of Title—Frederick Sr.‘s Living Children
The final argument with which we must deal is the assertion by the counterclaim defendants that, due to the fact that Frederick Sr.‘s living children were not parties to the instant case at the time the notices of lis pendens were filed, it was
The counterclaim defendants find fault specifically with the trial justice‘s reliance on
Conversely, the counterclaimants urge us to affirm the trial justice‘s holding that Phillip, Freida, and Laurie are liable for slander of title. They contend that the siblings “affirmatively embraced” the notices of lis pendens. As the counterclaimants point out, Phillip joined the suit “voluntarily” and Freida and Laurie had many courses of action available to them, which they chose not to pursue: for example, according to the counterclaimants, Freida and Laurie “could have declined to join the suit,” “renounced any interest in * * * the properties,” assigned their interest to Frederick Sr., or contended that they were misled by Frederick Sr.‘s assertions and thus had a good faith belief that they had an interest in the properties. In further support of their argument, the counterclaimants point to the fact that, at a later point in the proceedings below, Phillip, Freida, and Laurie objected to the quashing of the notices of lis pendens. The counterclaimants assert that Phillip, Freida, and Laurie knew what they stood to gain should they prevail and what Angela Giguere and Christine Giguere-Carrozza stood to lose; the counterclaimants note that, even knowing what Angela Giguere and Christine Giguere-Carrozza stood to lose, the siblings made no attempt to differentiate their interest in the properties from the interest their father was asserting when he filed the notices of lis pendens.
The trial justice commenced his discussion with respect to the liability of Frederick Sr.‘s living children by addressing Phillip‘s liability; he stated that Phillip had voluntarily joined the action and that, as an attorney himself, he “would certainly have understood the significance of joining” the case as a plaintiff. The trial justice proceeded in his reasoning to note that all three of the siblings were charged with knowledge of the public records—including the fact that Frederick Jr. had held title to the four properties at issue at the time of his death “as well as the original lis pendens filed by [Frederick Sr.] * * *.” With regard to his reasoning for holding the living children liable for slander of title the trial justice stated, in pertinent part, as follows:
“They could have filed their own amended lis pendens, limiting their claims to the condominium unit and Post Road properties but chose not to. By failing to opt out or renounce, they clearly stood with their hands outstretched, waiting for a decision of this [c]ourt that
would place [Frederick Jr.‘s] property in those outstretched hands. * * * [O]nce made parties they are not unwilling participants in the lawsuit. They are charged with the knowledge of what was claimed in the complaint. They knew what they were asking for as a matter of law and in fact, they knew what they would gain if they prevailed. They knew what the widow and adopted child stood to lose and they knew as a matter of law how the properties they were asking to be awarded to them were being held hostage for them by the filing of the lis pendens. * * *
“Although the lis pendens were filed before they joined the action, under
Rule 15(c) the amended complaint relates back to the date of the original pleading, including the filing of the lis pendens. Phillip, Lori [sic] and Freida are charged with filing the lis pendens as if they had filed it themselves. * * * Clearly, if they prevailed they would be expected to participate in whatever benefits that would be derived from the prosecution of this lawsuit.”
In accordance with the well-articulated and thorough analysis conducted by the trial justice, it is our judgment that the argument of the counterclaim defendants, which they concisely sum up in their contention that “the trial justice visited the sins of the father upon the children,” is unavailing.
We commence our analysis by addressing the trial justice‘s reliance on
“Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing or adding a plaintiff or defendant or the naming of a party relates back if the foregoing provision is satisfied and, within the period provided by
Rule 4(l) for service of the summons and complaint, the party against whom the amendment adds a plaintiff, or the added defendant (1) has received such notice of the institution of the action that the party would not be prejudiced in maintaining a defense on the merits, and (2) knew or should have known that but for a mistake the action would have been brought by or against the plaintiff or defendant to be added.” (Emphasis added.)32
From the outset and even to this day, the surviving siblings have never renounced or denounced the notices of lis pendens filed by Frederick Sr.34 In fact, in “Plaintiffs’ Objection to Defendants’ Motion to Quash and Remove Lis Pendens” (Objection) the counterclaim defendants, including Phillip, Freida, and Laurie, stated, in the course of objecting to the motion to quash, that they “ha[d] an absolute right to maintain the recorded lis pendens and claim ownership or an equitable interest in the properties until and unless a final judgment enters.” We view those words as constituting an admission by the living children that they were adopting the notices of lis pendens. Moreover, the Objection makes it clear that the siblings were willing participants in the lawsuit and expected to benefit if the counterclaim defendants won. On the basis of that fact,
We further conclude that the trial justice‘s metaphorical observation that the siblings were standing “with their hands outstretched, waiting for a decision * * * that would place [Frederick Jr.‘s] property in those outstretched hands” was certainly not erroneous. There were options available to Phillip, Freida, and Laurie whereby they could have sought to distance themselves from the notices of lis pendens. As the counterclaimants point out, the siblings could have renounced any interest in the properties at issue; they could have continued to litigate while having allowed the notices of lis pendens to be quashed without objection. Additionally, they could have argued that they were misled by the false assertions of Frederick Sr. and, as a result, could not be found to have had the required malice for a slander of title claim because they had an honest belief that they possessed an interest in the properties. See Peckham, 570 A.2d at 667. They did none of those things. For that reason and the other reasons we have discussed supra, we uphold the ruling of the trial justice that Phillip, Freida, and Laurie are liable, along with their father, for slandering the title to the four properties at issue in this case.
In conclusion, it is our judgment that: (1) the trial justice did not commit clear error or misconceive or overlook material evidence when he held Frederick Sr. liable for slander of title; (2) the trial justice properly computed compensatory damages by subtracting the value of the property on the date the notices of lis pendens were removed from the highest value of the properties attained during the time period in which they were subject to the notices of lis pendens (which occurred in 2005); (3) prejudgment interest should be calculated starting from November 15, 2002, the date of the filing of the notices of lis pendens; (4) the trial justice did not misconceive any material evidence in awarding punitive damages against Frederick Sr., but those punitive damages shall be reduced to $422,500; and (5) the trial justice properly found Phillip, Freida, and Laurie liable for slander of title.
V
Conclusion
We affirm the judgment of the Superior Court in all respects except that part of the judgment awarding $845,000 in punitive damages, which we vacate. We hold that the award of punitive damages should be reduced to $422,500, and we remand the record in this case to the Superior Court with instructions that it enter judgment in accordance with this opinion.
Justice Flaherty did not participate.