Rhode Island Supreme Court Case Law

DALLMAN v. ISAACS, 2005-276-Appeal (R.I. 12-18-2006) Dennis
M. Dallman et al. v. Michael B. Isaacs et al. No.
2005-276-Appeal, (KC 04-1056) Supreme Court of Rhode
Island. December 18, 2006.



Chief Justice WILLIAMS, for the Court.

The plaintiffs, Dennis M. Dallman et al.[fn1] (plaintiffs),
appeal the Superior Court’s grant of a motion for summary
judgment in favor of the defendants, Michael B. Isaacs,
John M. McGurk, Henry V. Boezi, Mathias C. Wilkinson and
Kim A. Petti, in their capacities as members of the Town
Council of the Town of East Greenwich (council),[fn2] as
well as Hilda Hamilton Trust, Richard Hamilton Trust, James
Malm, Paula Malm, and P.J.C. Realty Company, Inc.[fn3] (PJC
Realty) (collectively defendants). The motion justice
concluded that the plaintiffs, who were displeased with the
council’s amendment of a zoning ordinance, had filed their
complaint in the Superior Court after the thirty-day appeal
period prescribed by G.L. 1956 § 45-24-71(a) had
expired. For the reasons set forth herein, we affirm the
ruling of the Superior Court.


Facts and Travel

Hilda Hamilton Trust, Richard Hamilton Trust, James Malm
and Paula Malm (owners) collectively owned certain real
property in East Greenwich.[fn4] To ensure they could
develop the property as planned, the owners filed a
petition requesting an amendment to the East Greenwich
Zoning Ordinance. Specifically, the petition asked the
council to rezone the property from Manufacturing/Light
Industry/Office to a zone entitled “Rocky Hill
Fairgrounds,” which, according to the petition, would be a
“[d]evelopment of [an] Office/Light Industry/Manufacturing
Park and [multiple single-family and multi-family homes].”

The council commenced its consideration of the owners’
petition, conducting a first reading of the petition at its
July 26, 2004 meeting. In accordance with the council’s
instruction at that meeting, notice of the petition, along
with an announcement that it would be considered at a
September 13, 2004 public hearing, was published in a local
newspaper. In addition to an extensive summary of the
petition’s details, the published notice indicated that, if
an ordinance were enacted in accordance with the petition,
it would “allow the following uses[:] Multi-family
dwelling, multi-single family [sic] dwelling, Offices,
Hotels, Restaurants, private Education Center, Day Care
Center, Health/Fitness Center, Light Industry, Office Park,
Research and Development Facilities, Light Industry Park.”
The newspaper notice explained that “[a] complete copy of
the proposed Ordinance, the Town of East Greenwich Zoning
Ordinance and the Tax Assessor’s Maps may be examined and
copied at cost in the Office of the Town Clerk,” giving the
location and hours of operation for that office. The
newspaper notice added:

“The proposed Ordinances may be altered or amended prior
to adoption without further advertising, as a result of
the views expressed at the public hearing. Any alteration
or amendment will be presented for comment in the course
of the hearing.”

After the September 13 public hearing, the proposed
amendment to the East Greenwich Zoning Ordinance was
continued for consideration at three subsequent council
meetings before finally being scheduled for a third reading
and vote on October 26, 2004.[fn5] Before this final
meeting, a list of nineteen conditions negotiated by the
developer, planning director and town manager were
submitted to the council. According to the minutes of the
October 26 council meeting, these conditions “chang[ed] and
increase[ed] some of the requirements” of the proposal. On
October 26, the council was to select one of four options
with regard to the proposed ordinance amendment and the
negotiated conditions:

“(1) All the conditions together with the Planning
Board’s recommendation of October 20th, that includes
language to be added to the zoning ordinance that the
Planning Board do the phasing and also maintain the
community character and existing quality of life;

“(2) Same recommendations as Option 1 together with the
same language from the Planning Board with the exclusion
of the language community character and existing quality
of life;

“(3) Same recommendations together with what was
presented by the developer and the letter that was
delivered to the members of Council yesterday, noting
certain phasing of items regarding Brook’s [sic], the
Restaurant, the development and included an office
building which would be phased per the Council and then
the remainder of the phasing would fall to the Planning

“(4) Same recommendation of the developer minus the
addition of the office building.”

After a third reading of the petition, a discussion on the
proposed conditions, and an opportunity for public comment,
the council voted to approve the petition as amended during
the hearing. The approved amendment included the original
nineteen negotiated conditions, plus an additional five
conditions proposed and approved during the hearing, for a
total of twenty-four conditions. Thereafter, a written copy
of the East Greenwich Zoning Ordinance, as amended, labeled
Ordinance No. 750, was posted in the town clerk’s office on
November 26, 2004.

On December 14, 2004, plaintiffs filed a complaint with the
Superior Court pursuant to § 45-24-71, arguing that
the amended ordinance did not conform to East Greenwich’s
Comprehensive Community Plan and Future Land Use Map
because it “alter[ed] those uses allowable and envisioned by
the Comprehensive Community Plan and Future Land Use Map,
and [greatly increased] the density of allowable
development on the premises.” PJC Realty filed a motion for
summary judgment on February 15, 2005, and a hearing date
was set for Monday, March 28; the council added its own
motion for summary judgment on March 15, but relied upon PJC
Realty’s memorandum to support its own motion. Each motion
contended that plaintiffs’ appeal was untimely, having been
filed some nineteen days after the expiration of the
thirty-day appeal period prescribed by § 45-24-71.
The plaintiffs eventually filed an objection to defendants’
motions on Friday, March 25, accompanied by the affidavit of
Clayton Shackleton. The motion justice, however, did not
receive these papers before the hearing on the following
Monday. At the summary judgment hearing, the motion justice
stated that plaintiffs’ complaint had not been timely
filed, and she accordingly granted defendants’ motions for
summary judgment. The plaintiffs appealed the motion
justice’s ruling.

The plaintiffs’ appeal was assigned to this Court’s
show-cause calendar and was heard in April 2006. In an
order dated May 4, 2006, we decided that cause had, in
fact, been shown, and the matter was scheduled for full
briefing. That order directed that the parties, in their
briefs to this Court, specifically address the following
two questions:

“1. For purposes of an appeal of an amendment to a
municipal zoning ordinance in accordance with G.L. 1956
§ 45-24-71, when does a town council amendment to
the zoning ordinance become effective — when the
council votes on the amendment or at some later point in

“2. If the amendment does not become effective on the
date of the council vote, when does it become effective?”



On appeal, plaintiffs advance several legal arguments
challenging the motion justice’s ruling. First, plaintiffs
maintain that, strictly for the purpose of filing an appeal
to the Superior Court pursuant to § 45-24-71, the
effective date of an ordinance amendment should be
contingent not upon the date of its passage by the council,
but rather upon its printing and publication in accordance
with G.L. 1956 § 45-6-7 and the Code of Ordinances
of the Town of East Greenwich (East Greenwich Code). The
plaintiffs point to other provisions of the General Laws to
support their interpretation of § 45-24-71. In
addition, plaintiffs insist that what they characterize as
principles of fairness and justice require that the
thirty-day appeal period prescribed by § 45-24-71
should not begin to run until the public has had an
opportunity to view an amended ordinance in its final
written form and thereby become able to ascertain whether a
legal cause for objection should be pursued.


Standard of Review

“This Court reviews the granting of summary judgment de
novo and applies the same standards as the motion justice.”
Andreoni v. Ainsworth, 898 A.2d 1240, 1241 (R.I. 2006)
(quoting DeCamp v. Dollar Tree Stores, Inc., 875 A.2d 13,
20 (R.I. 2005)). We will “affirm the judgment only if,
after reviewing the 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.” Tanner v. Town Council of
East Greenwich, 880 A.2d 784, 791 (R.I. 2005) (citing Roe
v. Gelineau, 794 A.2d 476, 481 (R.I. 2002)).

Our de novo review, however, is not a panacea for a party’s
failure to raise in the lower court the specific legal
basis for his or her objection to a motion for summary
judgment. See Konar v. PFL Life Insurance Co., 840 A.2d
1115, 1120 (R.I. 2004) (“Although our review of summary
judgment is de novo, it is not without limits.”). “`In
reviewing a summary judgment award * * * we consider only
those issues that were properly presented before the trial
court.'” Nedder v. Rhode Island Hospital Trust National
Bank, 459 A.2d 960, 962-63 (R.I. 1983); see also Konar, 840
A.2d at 1120 (“The taking of an appeal does not provide the
appealing party with a second bite at the apple. For
example, a party may not assert an argument on appeal that
was not presented below.”). “If a party fails to assert a
legal reason why summary judgment should not be granted,
that ground is waived and cannot be considered or raised on
appeal.” Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667,
678 (1st Cir. 1995) (quoting Vaughner v. Pulito, 804 F.2d
873, 877 n. 2 (5th Cir. 1986)). The party appealing an award
of summary judgment cannot “advance new theories or raise
new issues in order to secure a reversal of the lower
court’s determination.” 10A Charles Alan Wright et al.,
Federal Practice and Procedure Civil: § 2716 at 282,
284, 286 (1998); see also 11 James WM. Moore, Moore’s
Federal Practice § 56.41[3][c] at 56-303 (3d ed.
2006) (“As a general rule, arguments and evidence not
presented in the [trial] court in connection with a summary
judgment motion are waived on appeal and the appellate
court will be unable to consider these materials in its
review of the [trial] court’s decision.”).[fn6]



We are mindful that previously we issued an order in this
case directing the parties to address specific questions,
with which they have complied fully. However, after careful
consideration of the record, we are constrained to decide
this case in accordance with our well-settled
raise-or-waive rule. See Ahlburn v. Clark, 728 A.2d 449,
452 (R.I. 1999) (noting that this Court may “affirm a
judgment on grounds not actually relied upon by the trial
court to justify its ruling”).

By failing to inform the motion justice of the legal bases
for their objection to defendants’ motions for summary
judgment, plaintiffs have waived the arguments they now
present to this Court. At the summary judgment hearing, the
motion justice stated her belief that the court had
received no objection from plaintiffs.[fn7] The plaintiffs
explained that they had sent the objection to the court and
to opposing counsel, but conceded that the objection had
been filed late, and offered no satisfactory justification
for the omission.[fn8] In any event, the motion justice was
unequivocal in that she had no knowledge of the filing,
and, therefore, was never apprised of the legal arguments
presented therein. Despite this, however, plaintiffs made no
effort to provide the motion justice with a copy of the
previously filed objection and affidavit or otherwise to
inform the motion justice at the hearing of the legal bases
for their objection to defendants’ motions, despite
numerous invitations by the motion justice to do exactly
that. Undoubtedly, we think, it was incumbent upon
plaintiffs to inform the motion justice of the various
legal arguments they now advance before this Court to
preserve them for our review. Their failure to do so forces
us to conclude that they have waived their claims. See
Thomas v. Ross, 477 A.2d 950, 953 (R.I. 1984) (holding that
a party who fails to argue certain issues at trial may not
assert those claims for relief at the appellate level).

Before concluding, we think it important to note the
well-settled principle that, absent express statutory
language designating otherwise, an ordinance amendment
becomes effective on the date of its passage. See, e.g., 5
Eugene McQuillin, The Law of Municipal Corporations §
15:36 at 253 (3d rev. ed. 2004) (“[W]here publication is
not required and there is no time specified either in the
charter or ordinance, the ordinance takes effect from the
date of its passage.”). We stress the corollary, however,
that both the state and various municipalities of this
jurisdiction are free to assign, by positive enactment, a
date or contingency other than the date of passage as the
effective date of an ordinance amendment. In fact, we
strongly urge the General Assembly and the various
municipalities of this state to define, by positive
enactment, the “effective date” of an ordinance amendment
and to set forth any conditions that necessarily must be
satisfied before the thirty-day appeal period provided for
in § 45-24-71 begins to run. Furthermore, it is our
view that citizens in a participatory democracy deserve
that an ordinance amendment in final written form be made
available to the public forthwith once it has been passed by
a town or city council.


For the foregoing reasons, the ruling of the Superior Court
is affirmed. The record shall be remanded to the Superior

[fn1] This litigation began with two contingents of East
Greenwich residents filing separate complaints on the same
day in the Superior Court: Albert Shackleton et al. and
Dennis M. Dallman et al., assigned the case numbers KC
04-1055 and KC 04-1056, respectively. By motion of P.J.C.
Realty Co., Inc. (PJC Realty), these two actions were
consolidated. By agreement of the parties, Albert Shackleton
et al. v. Arthur C. Barton et al., No. KC 04-1055, was
dismissed with prejudice. Therefore, only the appeal of
Dennis M. Dallman et al. (KC 04-1056) is before this Court.

[fn2] This was the composition of the Town Council of the
Town of East Greenwich (council) on the date of oral
argument before this Court, November 8, 2006. As a result
of the November 7, 2006 general election, Mark Schwager
replaced Mathias C. Wilkinson when the new council took the
oath of office on December 11, 2006.

[fn3] PJC Realty was not named as a defendant in plaintiffs’
complaint. Instead, on December 31, 2004, PJC Realty filed
a motion to join as a defendant pursuant to Rule 19 of the
Superior Court Rules of Civil Procedure, or, in the
alternative, to intervene pursuant to Rule 24 of the
Superior Court Rules of Civil Procedure. The Superior Court
granted this motion on January 14, 2005.

[fn4] The East Greenwich property is described as assessor’s
plat No. 12A, lot Nos. 119, 76, and a portion of 75,
located at 1408 and 1492 Division Road.

[fn5] According to the affidavit of then Director of
Planning Lee R. Whitaker, the ordinance amendment in
question was discussed first at the advertised September
13, 2004 meeting and then on September 27, October 12, and
October 25, before it finally was passed at the October 26,
2004 meeting, for a total of five meetings.

[fn6] We pause to note that our reference here to federal
precedent is not exceptional. Because of the oft-noted fact
that Rhode Island’s current rules of civil procedure are
largely patterned after their federal counterparts, this
Court frequently seeks guidance from the federal
jurisprudence in deciding novel issues concerning civil
process in this state. See, e.g., Gliottone v. Ethier, 870
A.2d 1022, 1025 (R.I. 2005) (“in situations in which our
own case law is sparse in the area of civil procedure, we
shall consult the precedents in the federal courts since
our Superior Court Rules are patterned after the federal

[fn7] Opposing counsel acknowledged receipt of plaintiffs’
objection on Thursday, March 24. PJC Realty managed to
reply to this objection, which was filed with the Superior
Court on the same day as the objection, Friday, March 25.

[fn8] The plaintiffs explained that they refrained from
objecting sooner because, as they understood it, “[the]
case [was] about a millimeter away from settling.”