Joseph and Anggita Diorio v. Hines Road, LLCJoseph and Anggita Diorio v. Hines Road, LLC
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Joseph and Anggita Diorio :
v. :
Hines Road, LLC, et al. :
Present: Suttell, C.J., Goldberg, Robinson, and Indeglia, JJ.
Justice Robinson, for the Court. The plaintiffs, Joseph Diorio and Anggita Diorio (the Diorios), appeal from a June 6, 2018 final judgment of the Providence County Superior Court entered pursuant to
This case came before the Supreme Court for oral argument pursuant to an order directing the parties to show cause why the issues raised in this appeal should not be summarily decided. After considering the written and oral submissions of the parties, and after a thorough review of the
For the reasons set forth in this opinion, we affirm in part and vacate in part the judgment of the Superior Court.
I
Facts and Travel
A
Background Facts
In relating the basic facts, we rely on: this Court‘s previous decision in this case, Hines Road, LLC v. Hall, 113 A.3d 924 (R.I. 2015) (Hines I); the hearing justice‘s bench decision; and various documents in the record.
At all times relevant to this case, plaintiffs lived at 21 Georgiana Drive in Cumberland, Cumberland Tax Assessor‘s Plat No. 49, Lot No. 56 (the Diorio propеrty). Hines Road, LLC (Hines) owned the abutting property, 138 Wrentham Road, Cumberland Assessor‘s Plat No. 49, Lot No. 57 (the Hines property).2 The complaint in this case averred that, in 2006, Hines built a retaining wall on its property in close proximity to the property line that it
(1) without “a required soil erosion and sedimentation control plan;” (2) “without a required performance bond;” (3) “in violation of Town performance principles and guidelines for new developments;” (4) “without a state building permit;” and (5) “in violation of Statе Building Codes.” The Town defendants contend that the wall was built without the knowledge of the Town.
In 2008, the Town cited Hines with respect to the retaining wall, stating that the retaining wall “present[ed] a hazard to the general public” and ordering its removal. Subsequently, in March of 2010, Building Official Hall issued to Hines a “Notice for Violation of Building Code * * * and or Cumberland Zoning Ordinance” (Notice of Violation) for failure to comply with the Rhode Island State Building Code and the Cumberland Code of Ordinances. A Stop-Work Order was also issued at that time. Moreover, the complaint averred that Building Official Hall ordered Hines to remove the wall. In September of 2010, Building Official Hall issued another Notice of Violation, which again ordered Hines to remove the retaining wall. Thereafter, on March 31, 2011, the Town entered into a written agreement with Hines, in which Hines agreed to bury the wall according to an approved soil erosion and sedimentation control plan and permit by July 31, 2011.
According to the complaint in the case before us, Hines did not bury the wall by the date set forth in its written agreement with the Town. On July 13, 2012, Building Official Hall issued yet another Notice of Violation to Hines, expressly indicating that, if Hines did not remove the “unsafe wall,” the Town would havе it removed and would place a lien on Hines‘s property in the land evidence records. There was then ongoing communication between Hines and the Town, in the course of which Building Official Hall continued to insist that the wall be taken down. The complaint contends that, throughout the Summer of 2012, despite the July 13, 2012
Notice of Violation instructing Hines to remove the wall, Hines proceeded instead to cover the retaining wall with soil, gravel, loam, and grass seed in accordance with the March 31, 2011 agreement between Hines and the Town—thus creating an earthen slope. According to the trial justice‘s decision, in October of 2012, Building Official Hall issued yet another Notice of Violation to Hines. Subsequently, in November of 2012, Hines filed a complaint in Providence County Superior Court seeking to litigate issues relating to the March 31, 2011 agreement between Hines and the Town.3 The Diorios moved to intervene in the Superior Court action, but their motion was denied. They appealed that denial to this Court in Hines I, and we affirmed the denial of their motion to intervene. Hines I, 113 A.3d at 931.
In the action brought against the Town by Hines, the Superior Court ultimately issued an order on October 14, 2015 granting Hines‘s motion for summary judgment on the count in its complaint seeking declaratory judgment and declaring that Hinеs had “complied with the terms of the Settlement Agreement with the Town dated March 31, 2011 and all terms and conditions therein, and the work completed by [Hines] on the retaining wall [was] in compliance
Meanwhile, the Diorios filed this action on October 7, 2014 against Hines, Robert Geddes d/b/a Byron Devcomm, Inc., and the Town defendants. The complaint in this case included the following counts: (1) Count One for declaratory judgment and injunctive relief; (2) Count Two for negligence; (3) Count Three for private nuisance; (4) Count Four for trespass;
and (5) Count Five for intentional infliction of emotional distress. All counts were directed at аll defendants.
Ultimately, on May 1, 2017, the Town defendants filed a motion for summary judgment alleging that they were immune from suit under the doctrine of prosecutorial immunity.4 A hearing on that motion was held on November 7, 2017. The hearing justice issued a bench decision on December 4, 2017, granting the Town defendants’ motion for summary judgment. We relate below the salient aspects of that decision.
B
The Decision of the Hearing Justice
The hearing justice began her decision by explaining that prosecutorial immunity provides “immunity to prosecutors” with respect to “their decision-making process whether to bring cases or not bring cases, how to proceed,” whiсh is an “extension of * * * quasi-judicial immunity * * *.” She noted that said immunity exists not necessarily “for the protection or benefit of a malicious or corrupt prosecutor, but rather is for the benefit of the public, whose interest it is that the prosecutors should be at liberty to exercise their functions with independence and without fear of consequences.”
The hearing justice first addressed Solicitor Hefner. She stated that it was “clear” to her that he was “immune from liability because he [was] a prosecutor.” She added that “[i]ndeed, it
was [Solicitor] Hefner‘s job to initiate an action that he deemed аppropriate in Rhode Island Superior Court to compel compliance with the numerous Town-issued notices of an unsafe structure.” She opined that that was the “textbook definition * * * of what prosecutorial immunity is meant for.”
However, with respect to the status of Building Official Hall, the hearing justice found it to be a “harder issue * * *.” She stated that she did not initially see how Building Official Hall carried out prosecutorial functions such that he would be protected by prosecutorial immunity. However, she went on to further state that, after listening to the parties and examining legal authorities, she had come to the conclusion that “the [c]ourt is instructed to look at the nature of the function being performed and not the official title that someone holds.” She proceeded to state that “what‘s really being argued is a failure to enforce the violations that were issued.” For that reason, it was her determination that prosecutorial
With respect to the Town, the hearing justice stated that “a suit against a state official in his or her official capacity is not a suit against the official, but rather is a suit against the official‘s office.” She thus held that, because Solicitor Hefner and Building Official Hall had been sued in their official capacities, their immunity extended to the Town as well.
Lastly, the hearing justice addressed the applicability of
imposed a mandatory duty on Solicitor Hefner to bring a Superior Court action when a structure is deemed unsafe. The hearing justice noted that she did consider the statutory scheme when reaching her conclusions in this case, but that, once it was determined that the Town defendants could avail themselves of prosecutorial immunity, she did not think that “those [statutory] provisions and their mandatory nature would necessarily change [her] conclusion * * *.”
An order entered granting summary judgment for the Town defendants on March 2, 2018. Final judgment pursuant to
II
Issue Raised on Appeal
The issue with which this Court is confronted is: whether or not the hearing justice erred in applying prosecutorial immunity to Solicitor Hefner, Building Official Hall, and the Town of Cumberland?
III
Standard of Review
This Court reviews a grant of summary judgment in a de novo manner. Rhode Island Industrial-Recreational Building Authority v. Capco Endurance, LLC, 203 A.3d 494, 499 (R.I. 2019). In so doing, we employ “the same standards and rules used by the hearing justice.”
Cancel v. City of Providence, 187 A.3d 347, 349 (R.I. 2018) (internal quotatiоn marks omitted). This Court “will affirm a [trial] court‘s decision only if, after reviewing the admissible evidence in the light most favorable to the nonmoving party, we conclude that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law.” Newstone Development, LLC v. East Pacific, LLC, 140 A.3d 100, 103 (R.I. 2016) (internal quotation marks omitted). “[T]he nonmoving party bears 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.”
IV
Analysis
The Diorios contend on appeal that the Superior Court “overlooked the fact-based inquiry required for analyzing prosecutorial immunity, and instead improperly relied upon select allegations in the complaint * * *.” They argue that the Superior Court “overlooked or ignored important, undisputed facts, affidavits, documents, and argument * * *.” (Emphasis in original.) They further allege that the Superior Court applied “the wrong standard of review” and did not view the evidence in the light most favorable to the non-moving plaintiffs.
In addressing the Diorios’ contentions on appeal, we begin by looking to the law governing immunity.
As the United States Court of Appeals for the First Circuit has stated, “Immunities come in various shapes and sizes.” Goldstein v. Galvin, 719 F.3d 16, 24 (1st Cir. 2013). However, in
this action, we are concerned solely with the doctrine of prosecutorial immunity.6 “The baseline rule [as to prosecutorial immunity] is that a state official who performs prosecutorial functions * * * is absolutely immune from damages actions.” Id. at 26. The “absolute immunity” at issue in this case “applies to a narrow swath of public officiаls, including judges performing judicial acts within their jurisdiction, prosecutors performing acts intimately associated with the judicial phase of the criminal process, and agency officials with functions similar to judges and/or prosecutors.” Id. at 24 (emphasis added) (internal quotation marks omitted); see Burns v. Reed, 500 U.S. 478, 486 (1991). The protection provided by an absolute immunity “endures even if the official acted maliciously and corruptly in exercising his judicial or prosecutorial functions.”7 Goldstein, 719 F.3d at 24 (internal quotation marks omitted); see also Wang v. New Hampshire Board of Registration in Medicine, 55 F.3d 698, 702 (1st Cir. 1995). We note that “[a]lthough this concept of absolute immunity allows some abuses of official power to go unredressed, it is necessary for the effective administration of government that govеrnment workers be able to perform their jobs without fear of liability.”8 Id. (internal
quotation marks omitted);
Our case law clearly indicates that the doctrine of prosecutorial immunity remains “alive and well” in Rhode Island. Bandoni v. State, 715 A.2d 580, 595 (R.I. 1998); see also Beaudoin v. Levesque, 697 A.2d 1065, 1068 (R.I. 1997) (applying absolute immunity to a prosecutor); Suitor v. Nugent, 98 R.I. 56, 61, 199 A.2d 722, 724 (1964) (applying to the attorney general the immunity accorded to judicial officers). What is more, absolute immunity can be extended beyond a prosecutor to the functions of an official that are similar to those of a prosecutor. Goldstein, 719 F.3d at 24; see Butz v. Economou, 438 U.S. 478, 515 (1978); cf. Richardson v. Rhode Island Department of Education, 947 A.2d 253, 257 (R.I. 2008) (holding that “quasi-
judicial immunity attaches to agents of the state who perform an official function comparable to that of a trial judge, not just members of the judiciary“) (internal quotation marks omitted); Maynard v. Beck, 741 A.2d 866, 870 (R.I. 1999) (holding that “the doctrine of legislative immunity is not reserved solely for legislators, and that officials outside the legislative branch are entitled to legislative immunity when they perform legislative functions“) (internal quotation marks omitted).
In determining whether an individual is entitled to prosecutorial immunity we look to the “nature of the function performed” by the official at issue. Richardson, 947 A.2d at 257 (internal quotation marks omitted); see also Goldstein, 719 F.3d at 24. We are not concerned with the identity of the actor who performed the function but rather we are concerned with whether or not the act had a “functional tie to the judicial process * * *.” Buckley v. Fitzsimmons, 509 U.S. 259, 277 (1993); see Forrester v. White, 484 U.S. 219, 229 (1988); see also Cooper v. Parrish, 203 F.3d 937, 947 (6th Cir. 2000). Additionally, “[t]he immunity-seeker must carry the devoir of persuasion to show that an immunity applies.” Goldstein, 719 F.3d at 24; see also Burns, 500 U.S. at 486. “That burden is a heavy one.” Penate v. Kaczmarek, 928 F.3d 128, 135 (1st Cir. 2019). It requires a showing that “absolute immunity should attach to each act * * * allegedly committed that gave rise to a cause of action.” Light v. Haws, 472 F.3d 74, 79, 80 (3d Cir. 2007) (noting the necessity of a “meticulous analysis” of the official‘s actions and functions before a determination could be made that absolute immunity would attach).
A
Solicitor Hefner
After a careful review of the record before us and the cоntentions made by the parties on appeal, it is clear to this Court that there are no material facts that remain in dispute with respect
to the functions performed by Solicitor Hefner in this case. What is more, we are in hearty agreement with the hearing justice that the issue of whether or not Solicitor Hefner is entitled to prosecutorial immunity is clear. Solicitor Hefner‘s function in this case was certainly similar to that of a prosecutor—he was tasked with determining what the appropriate action was in attempting to ensure compliance with the Notices of Violatiоn that had been issued to Hines. See Richardson, 947 A.2d at 257; see also Butz, 438 U.S. at 515 (stating that an agency official‘s decision to initiate administrative proceedings was analogous to the function of a prosecutor). Essentially, Solicitor Hefner‘s function was to determine, in his capacity as advocate for the Town, whether or not to prosecute Hines in Superior Court and to decide how to handle the case which Hines filed against the Town in Superior Court. Thus, Solicitor Hefner‘s function at issue in this case, even when the facts are taken in the light most favorable to plaintiffs as the non-moving parties, was clearly “intimately associated with the judicial phase” of the enforcement of the Notices of Violation. Goldstein, 719 F.3d at 24. For that reason, we are led to the ineluctable conclusion that Solicitor Hefner is covered by prosecutorial immunity in this case. See Dohaish v. Tooley, 670 F.2d 934, 938 (10th Cir. 1982) (“A decision not to prosecute is a decision which is protected by [prosecutorial] immunity.“).
We pause, however, to consider the Diorios’ statutory argument. The Diorios contend, as they did in Superior Court, that Solicitor Hefner is not entitled to prosecutorial immunity because he was tasked with carrying out functions which the Diorios consider to bе “non-discretionary” and mandatory pursuant to
It will be recalled that
“When an owner or the owner‘s authorized agent has been served with a notice of an unsafe condition and fails to comply with the order to either make the building, sign, or structure safe or to have it demolished within a stipulated time and has not appealed the order to the local board of appeals within the thirty (30) days required, the legal counsel of the municipality shall be advised and shall institute the appropriation action to compel compliance as provided in
§ 23-27.3-122.0 .”9 (Emphasis added.)
We begin by noting that the statute states that legal counsel “shall institute the appropriation action * * *.”
The requirement to institute an “appropriate action” clearly leaves some discretion in the town solicitor to determine what is and is not an appropriate action. We are further of the opinion that a town solicitor is vested with discretion to determine, at the very least, the timing of the filing of a Superior Court action. For the above-stated reasons, it is clear to this Court that the statute at issue does not necessarily mandate the immediate filing of a court action.
In conclusion, in the judgment of this Court, there are no material facts which remain in dispute as to Solicitor Hefner, and he is protected from suit in this case by the doctrine of
prosecutorial immunity. Accordingly, we perceive no error in the hearing justice‘s grant of summary judgment as to Solicitor Hefner.
B
Building Official Hall
The Diorios aver on appeal that many of Building Official Hall‘s duties, which are described at length in the Diorios’ motion for summary judgment against the Town defendants, were administrative and non-discretionary. They state that Building Official Hall “failed to take actions to secure the safety of the [retaining wall or earthen slope], such as by performing the requisite inspections to verify its stability and safety following its last modificаtion” or by having it removed.
As we have previously indicated, in determining the applicability of the doctrine of prosecutorial immunity, we must look not to the position held by a particular official—a Town Building and Zoning Official in this instance—but rather to the nature of the functions he or she performed which are at issue in the case. See Buckley, 509 U.S. at 277; Imbler v. Pachtman, 424 U.S. 409, 420 (1976); Richardson, 947 A.2d at 257. We have conducted a detailed review of the record and the arguments of the parties on appeal, and we conclude that, under the facts of this particular case, we know of no function performed by Building Official Hall that could reasonably be categorized as prosecutorial in nature.
We have considered, at length, the facts alleged as to Building Official Hall in the Diorios’ complaint, as well as their memorandum in support of their motion for summary judgment. In so doing, we have assessed each and every function of Building Official Hall at issue in this case. However, we do not deem it necessary to parse each and every function in this opinion. Rather, we will discuss the allegations against Building Official Hall more generally.
Those allegations are focused on his issuance of Notices of Violation and, more importantly, his alleged failure to enforce those notices as well as various Town ordinances with respect to the retaining wall at issue. In our opinion, none of his actions, or inactions, show a “functional tie to the
Accordingly, it is our view that the hearing justice erred in holding, on this record, that Building Official Hall was entitled to prosecutorial immunity and in granting the Town defendants’ motion for summary judgment with respect to the claims against him.
C
The Town of Cumberland
In addressing the case as it pertains to the Town, we would like to begin with the applicability of
“Every person who has any money due him or her from any town or city, or any claim or demand against any town or city, for any matter, cause, or thing whatsoever, shall take the following method to obtain what is due: The person shall present to the town council of the town, or to the city council of the city, a particular account of that person‘s claim, debt, damages, or demand, and how incurred or contracted; which being done, in case just and due satisfaction is not made to him or her by the town or city treasurer of the town or city within forty (40) days after the presentment of the claim, debt, damages, or demand, the person may commence his or her action against the treasurer for the recovery of the complaint.”
Section 45-15-5 (emphasis added).
In its answer to the Diorios’ complaint, the Town stated, as an affirmative defense, that “[p]laintiffs have failed to comply with the requirements of
Counts Two through Five of the Diorios’ complaint—for negligence, private nuisance, trespass, and intentional infliction of emotional distress respectively—are monetary claims and, in the opinion of this Court, are strictly governed by
Due to the fact that we are vacating the decision of the Superior Court with respect to Building Official Hall, who was named in his official capacity, and in view of the potential abatement and dismissal of Counts Two through Five, we vacate the summary judgment decision of the Superior Court with respect to the Town. Cf. Psilopoulos v. State, 636 A.2d 727, 728 (R.I. 1994) (relying on Butz, 438 U.S. at 478, in addition to other cases, for the proposition that a quasi-judicial determination is “entitled to immunity on the part of the agents as well as the sovereign entity that employed them“); Calhoun, 120 R.I. at 632, 390 A.2d at 356 (“While immunizing officials from personal liability is, of course, a separate concept from governmental immunity, * * * substantial public policies necessitate that even when the state is the defendant, recovery should be denied the injured party.“).
In conclusion, we affirm the grant of the Town defendants’ motion for summary judgment with respect to the claims against Solicitor Hefner, but we vacate the judgment with respect to the claims against Building Official Hall and the Town.
V
Conclusion
For the reasons set forth herein, we affirm in part and vacate in part the judgment of the Superior Court. We remand the record to that tribunal.
Justice Flaherty attended oral argument but did not participate in the deliberations or in the decision of this case.
SU-CMS-02A (revised June 2016)
STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
SUPREME COURT – CLERK‘S OFFICE
OPINION COVER SHEET
| Title of Case | Joseph and Anggita Diorio v. Hines Road, LLC, et al. |
| Case Number | No. 2018-207-Appeal. (PC 14-4918) |
| Date Opinion Filed | March 30, 2020 |
| Justices | Suttell, C.J., Goldberg, Robinson, and Indeglia, JJ. |
| Written By | Associate Justice William P. Robinson III |
| Source of Appeal | Providence County Superior Court |
| Judicial Officer From Lower Court | Associate Justice Maureen B. Keough |
| Attorney(s) on Appeal |
For Plaintiffs: Jennifer R. Cervenka, Esq. Paul Kessimian, Esq. Emily J. Migliaccio, Esq. For Defendants: Kathleen M. Daniels, Esq. Michael A. DeSisto, Esq. Michael A. Kelly, Esq. Andrew G. Blais Esq. Kelley N. Morris, Esq. |
Notes
“It does indeed go without saying that an official, who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good, should
not escape liability for the injuries he may so cause; and, if it were possible in practice to confine such complaints to the guilty, it would be monstrous to deny recovery. The justification for doing so is that it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. Again and again the public interest calls for action which may turn out to be founded on a mistake, in the face of which an official may later find himself hard put to it to satisfy a jury of his good faith. There must indeed be means of punishing public offiсers who have been truant to their duties; but that is quite another matter from exposing such as have been honestly mistaken to suit by anyone who has suffered from their errors. As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation.” Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949); see also Burns v. Reed, 500 U.S. 478, 484 (1991).