                                                               Supreme Court

                                                               No. 2012-14-Appeal.
                                                               (KC 09-968)

Joyce DiPippo, Individually and as Trustee   :
 of the Joyce DiPippo Living Trust dated
            June 10, 1992 et al.

                    v.                       :

           Louis Sperling et al.             :




            NOTICE: This opinion is subject to formal revision before
            publication in the Rhode Island Reporter. Readers are requested to
            notify the Opinion Analyst, Supreme Court of Rhode Island, 250
            Benefit Street, Providence, Rhode Island 02903, at Telephone 222-
            3258 of any typographical or other formal errors in order that
            corrections may be made before the opinion is published.
                                                                     Supreme Court

                                                                     No. 2012-14-Appeal.
                                                                     (KC 09-968)

    Joyce DiPippo, Individually and as Trustee    :
     of the Joyce DiPippo Living Trust dated
                June 10, 1992 et al.

                        v.                        :

               Louis Sperling et al.              :

               Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.


                                          OPINION

        Chief Justice Suttell, for the Court. Joyce DiPippo (Mrs. DiPippo) and Trudy DiPippo

(collectively, plaintiffs) 1 appeal from a Superior Court judgment, after a bench trial, in favor of

the defendants, Louis and Rebecca Sperling, in this adverse-possession action. The plaintiffs

argue that the trial justice erred in holding that an agreement, in which the Sperlings granted Mrs.

DiPippo permission to place a hammock on a disputed parcel of land, was a concession to the

defendants’ superior title in that land. This case came before the Supreme Court pursuant to an

order directing the parties to show cause why the issues raised in this appeal should not

summarily be decided. After considering the parties’ written and oral submissions and reviewing

the record, we conclude that cause has not been shown and that this case may be decided without

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

the Superior Court.


1
 Although the case caption reads “Joyce DiPippo, Individually and as Trustee * * *,” the original
complaint was amended to include Joyce DiPippo’s daughter, Trudy DiPippo, as an additional
plaintiff.


                                                 -1-
                                                 I

                                 Facts and Procedural History

       The plaintiffs own property at 90 Overhill Road in Warwick, Rhode Island, which is

described as Assessor’s Plat No. 219, lot No. 9. Joyce DiPippo purchased the property with her

then-husband, Robert, in 1972. 2 In 2002, defendants purchased property at 86 D’Agnillo Drive

in Warwick, Rhode Island, which is described as Assessor’s Plat No. 219, lot No. 172. The

defendants’ property abuts the southern boundary of plaintiffs’ property. The parcel of land at

issue is an area, irregular in both shape and contour, located on the northernmost portion of

defendants’ surveyed property. 3 The precise boundaries of the disputed area have not been

determined. The plaintiffs assert that, since 1972, they have used this area as their own, in the

belief that it is part of their yard. Specifically, plaintiffs placed an inflatable children’s pool,

built a “tree fort,” and hung a hammock from trees in the disputed area.

       In March 2003, after purchasing the property on D’Agnillo Drive, defendants arranged to

have their property surveyed and staked. One of the stakes denoting the northern border of the

Sperling property was placed within the disputed area. Mrs. DiPippo’s son, Alexander, testified

that he removed the stake, stating that he thought it had been placed “in the middle of my yard.”

Mr. Sperling testified that he spoke to Mrs. DiPippo for the first time on or about March 14,



2
  Joyce and Robert DiPippo owned the property until their divorce. Mrs. DiPippo became the
sole owner in 1986. In 2000, she transferred the property to herself as trustee of a revocable
trust. In 2008, she conveyed the property to Trudy DiPippo, reserving a life estate for herself.
3
   Although plaintiffs consistently use the term “the cleared area” in their filings, defendants
assert that the area is not cleared and remains woodland. The photographs offered as exhibits
show trees and brush consistent with a natural woodland. While there was discussion during the
trial about taking a view of the property, the record does not reveal whether the court took such a
view. Accordingly, on such limited information, this Court will decline to use the term “cleared
area” and will instead refer to it only as the “disputed area.”
                                               -2-
2003. He said that Mrs. DiPippo inquired about the surveyor’s stake and asked if Mr. Sperling

intended to erect a fence across the rear of the property. Mr. Sperling recalled responding that he

did not intend to do so, and asked why that would be a concern. He testified that Mrs. DiPippo

replied that she had placed her hammock there and that the prior owner “had told her it was

okay.” Mr. Sperling further testified that “she wanted to know if I would let her do it.”

       Mrs. DiPippo also testified about meeting Mr. Sperling for the first time “a couple of

days after [her] son broke off the stake.” She recalled Mr. Sperling telling her that he was now

the owner of the land and testified that she “probably stood there with [her] mouth open.” When

asked whether she told Mr. Sperling what she believed the status of the land to be, Mrs. DiPippo

testified that she told him: “I have no idea what you’re talking about. I totally have to process

this. This is news to me.” Although she did not testify to making any claim of ownership during

that conversation, she recalled feeling “like someone * * * told you after 35 years it’s not yours.

It’s just too much to process, too much to absorb and I couldn’t absorb it at that point.”

       Mr. Sperling testified that he told Mrs. DiPippo that he would allow her to hang the

hammock and then, at a subsequent meeting, stated that he would give permission in exchange

for her executing an indemnification agreement. The indemnification was not executed until

2005, and during the interim, Mrs. DiPippo did not hang her hammock in the disputed area.

       In January 2004, defendants sent a letter to several neighbors along their northern border,

including Mrs. DiPippo. The letter referred to a stone wall at the rear edge of the property, that

“marks the property line” between defendants and the neighboring lots to the north, and noted

that “part of [the defendants’] property may have been used by a neighbor not being aware that

the property line stops at the stone wall. This may particularly be the case where the stone wall




                                                -3-
has disappeared.” 4 In the letter, defendants also stated that they would not permit further use of

their property without “specific written permission,” but they offered to consider requests for

such permission. Additionally, the letter advised that defendants intended to file a notice to

contest adverse possession. On March 31, 2004, defendants recorded said notice in the Warwick

Records of Land Evidence.

       On April 13, 2004, Mrs. DiPippo sent a letter to defendants asserting that she had

“always believed that [she] own[ed] the property in dispute.” Mrs. DiPippo proposed meeting to

“discuss ways that the case can be resolved,” and noted that any such meeting “would be

considered a settlement discussion pursuant to Rule 408 [of the Rhode Island Rules of

Evidence].” Although the parties met, no settlement was reached.

       In the spring of 2005, there was further discussion about Mrs. DiPippo putting up the

hammock, and Mr. Sperling reminded her that he would need an indemnification agreement.

When Mrs. DiPippo realized that defendants had not received one from her attorney, she invited

Mr. Sperling to draft an agreement.      Finally, on April 22, 2005, Mrs. DiPippo signed an

indemnification agreement that Mr. Sperling had drafted. The document states as follows:

               “This letter will serve to confirm our understanding regarding our
               permission for you to put up and use a hammock amongst trees on
               our property.

               “On Tuesday, April 19, 2005, you indicated to me that you had
               informed your attorney to present us with your acknowledgement
               that we had given you permission to place a hammock on a portion
               of our property which abuts your adjoining property in exchange
               for your agreement to indemnify us for any injury which may
               occur to you or your guests from the use of the hammock placed
               on our property. I indicated to you that I had not received any such
               notification from your attorney. I further indicated to you that you



4
 The stone wall referenced in the letter runs along the southern boundary of four rectangular lots
north of defendants’ property, but there is a gap in the wall behind plaintiffs’ property.
                                               -4-
               could place the hammock on our property pending acceptable
               notification from you or your attorney regarding indemnification.

               “This letter will serve as notification of our intent to grant you
               limited access and use of a portion of our property for the purpose
               of placing and using a hammock on our property in exchange for
               your signed indemnification as noted below.

               “You also indicated to me a desire to obtain permission for your
               son to place a hammock on our property should you decide to sell
               your property to him in the future. Our willingness to grant
               permission to your son should he become the owner of the
               property will be dependent on his willingness to indemnify us at
               the time he becomes an owner of the property and his agreement to
               the terms of usage as outlined in this letter.

               “Of course, circumstances may change and you may, in the future,
               not wish to provide us with indemnification. Therefore, it is
               understood and agreed that either party may terminate this
               agreement at any time and for any reason upon written notice to
               the other party. Should you withdraw your indemnification or
               should you use the property for any purpose or reason other than
               the placement and use of a hammock, permission to use our
               property will be immediately withdrawn. It is understood that you
               cannot cut any trees or shrubs that are on our property nor may you
               place any other structure or object on our property other than the
               said hammock.

               “It is further understood and agreed that you will indemnify us and
               hold us harmless for any injury which you or your guests may
               sustain while using the hammock on our property.

               “By signing and returning a copy of this letter to me, we can avoid
               any further discussion of the matter and avoid additional and
               unnecessary attorney fees. Enjoy your summer and happy
               swinging.”

Mrs. DiPippo returned the signed letter to defendants along with a handwritten note stating:

“What a perfect solution!! I’m happy to sign the agreement * * * I feel good about resolving

this, as I’m sure you do. Looking forward to waving hello at you, while swinging in my

hammock!!” Neither document contains a reservation of rights, or any mention of plaintiffs’

claim to the property.

                                              -5-
       In the fall of 2005, Mrs. DiPippo alerted defendants that one of the trees to which she

affixed her hammock was leaning at a 45-degree angle. In a handwritten letter dated November

17, 2005, Mrs. DiPippo offered to pay $100 toward removal of the tree, “even though I’ve since

learned that I have no responsibility to do so.” On June 11, 2006, Mrs. DiPippo again wrote to

defendants, expressing increasing concern about “the huge tree in your yard that is now perched

very precariously on my tree” and the fear that her tree could collapse onto the roof of her house.

Mr. Sperling responded in a letter dated June 13, 2006, noting that the “branches and the like

which hang over your property are subject to being cut and trimmed by you.” The letter

describes the property line stating, “[i]f you stand where the stone wall used to be and look up,

you can see a bulge in the tree. Everything to the left of the bulge is over your property * * *.”

Finally, the letter states that if, after the overhanging branches are trimmed, the trunk still looks

unsteady, defendants “will, of course, deal with that expense.”

       In December 2006, Mrs. DiPippo left Mr. Sperling a voicemail message informing him

that she had found someone to cut the branches on her property. In his response, Mr. Sperling

reiterated that Mrs. DiPippo was not authorized to remove any part of the tree trunk that

remained on his property. The tree, which previously had held up one side of Mrs. DiPippo’s

hammock, fell over in early 2007. Mrs. DiPippo arranged to have the fallen tree removed,

prompting defendants to send a letter directing her to cease cutting “wood that is not yours to

cut” and reiterating that “you cannot enter the property, cut trees, remove shrubs or even rake

leaves without explicit permission.” Mrs. DiPippo complied.

       In 2008, Mrs. DiPippo installed security lights on her property that shone toward

defendants’ house. That November, defendants erected a fence approximately five and a half

feet inside the northern boundary of their own property. The plaintiffs filed the instant action for



                                                -6-
adverse possession on July 10, 2009, and moved for a preliminary injunction. The motion for

preliminary injunction was heard on August 26, 2009, and the hearing justice found that

plaintiffs failed to establish either a reasonable likelihood of success on the merits or irreparable

harm and thus he denied the motion. The case proceeded to a bench trial and was heard on

December 6-8, 2010. 5 On July 14, 2011, judgment entered in favor of defendants. The plaintiffs

timely appealed.

                                                 II

                                       Standard of Review

       This Court will “give much deference ‘to the factual findings of a trial justice sitting

without a jury in a civil case.’” McGarry v. Coletti, 33 A.3d 140, 144 (R.I. 2011) (quoting B.S.

International Ltd. v. JMAM, LLC, 13 A.3d 1057, 1062 (R.I. 2011)). We have stated that “we

will not disturb such findings ‘unless [they] are clearly wrong or the trial justice misconceived or

overlooked material evidence.’” Id. (quoting Lee v. Raymond, 456 A.2d 1179, 1184 (R.I. 1983)).

“[T]his standard applies in adverse possession cases.” Id. (quoting Carnevale v. Dupee, 853 A.2d

1197, 1200 (R.I. 2004)).

                                                III

                                            Discussion

       On appeal, plaintiffs argue that the trial justice erred in applying this Court’s precedent in

Cahill v. Morrow, 11 A.3d 82 (R.I. 2011), when he found that the 2005 agreement between the

parties allowing Mrs. DiPippo to put up a hammock was an acknowledgment by plaintiffs of

defendants’ superior title. Specifically, plaintiffs argue that the indemnification letter was a

settlement agreement entered into after a dispute had arisen and thus cannot serve as evidence


5
 The Superior Court justice who presided at the trial was not the same justice who heard the
motion for preliminary injunction.
                                                -7-
that plaintiffs conceded defendants’ ownership of the disputed area. The defendants respond that

Mrs. DiPippo asked Mr. Sperling for permission to put up her hammock in 2003, well before

defendants’ notice of intent to dispute adverse possession. The defendants argue that, because

this request was made prior to any dispute, it cannot be construed to be a settlement. Further,

defendants note that Mrs. DiPippo did not reserve any rights to maintain an adverse-possession

claim when she signed the 2005 agreement. Accordingly, defendants assert that the trial justice

was correct in holding that plaintiffs did not possess the disputed property under a claim of right.

Alternatively, defendants argue that the most plaintiffs can claim is a seasonal easement to use a

hammock in the disputed area—an easement that was extinguished when one of the “hammock

trees” fell.

          In Rhode Island, to obtain property by adverse possession, 6 a claimant must prove

“actual, open, notorious, hostile, continuous, and exclusive use of property under a claim of right

for at least a period of ten years.” Cahill, 11 A.3d at 88. “The party who asserts that adverse

possession has occurred must establish the required elements by strict proof, that is, proof by




6
    General Laws 1956 § 34-7-1 states,
                        “Where any person or persons, or others from whom he,
                she, or they derive their title, either by themselves, tenants or
                lessees, shall have been for the space of ten (10) years in the
                uninterrupted, quiet, peaceful and actual seisin and possession of
                any lands, tenements or hereditaments for and during that time,
                claiming the same as his, her or their proper, sole and rightful
                estate in fee simple, the actual seisin and possession shall be
                allowed to give and make a good and rightful title to the person or
                persons, their heirs and assigns forever; and any plaintiff suing for
                the recovery of any such lands may rely upon the possession as
                conclusive title thereto, and this chapter being pleaded in bar to
                any action that shall be brought for the lands, tenements or
                hereditaments, and the actual seisin and possession being duly
                proved, shall be allowed to be good, valid and effectual in law for
                barring the action.”
                                                 -8-
clear and convincing evidence.” Id. (quoting Corrigan v. Nanian, 950 A.2d 1179, 1179 (R.I.

2008) (mem.)).

       The trial justice made specific findings that plaintiffs’ use of the disputed property was

actual and continuous, open and notorious, and exclusive throughout the ten-year statutory

period. At issue here is the element of hostility. “[T]o require adverse possession under a claim

of right is the same as requiring hostility, in that both terms simply indicate that the claimant is

holding the property with an intent that is adverse to the interests of the true owner.” Tavares v.

Beck, 814 A.2d 346, 351 (R.I. 2003) (quoting 16 Richard R. Powell and Michael Allan Wolf

Powell on Real Property, § 91.05[4] at 91-29 (2000)). A possessor’s use is hostile if it is “a use

‘inconsistent with the right of the owner, without permission asked or given, * * * such as would

entitle the owner to a cause of action against the intruder [for trespass].’” Id. (quoting Powell on

Real Property, § 91.05[1] at 91-23). The trial justice found that plaintiffs failed to prove their

use was hostile because they made “several arrangements with [defendants] that illustrated

[their] acceptance of [d]efendants’ superior title.” Accordingly, he found that Mrs. DiPippo was

“well aware that her interest in the disputed property was subservient to that of the [d]efendants.”

Although the trial justice made few specific findings of fact, in making this determination it is

apparent that he relied on testimony about discussions in which Mrs. DiPippo requested

permission to place a hammock on the disputed property, as well as the 2005 indemnification

agreement. We shall address each of these bases separately.

                                                 A

                                      The 2003 Discussion

       In Cahill, 11 A.3d at 93, this Court held that “the objective manifestations that another

has superior title, made after the statutory period and not made to settle an ongoing dispute, are



                                               -9-
poignantly relevant to the ultimate determination of claim of right and hostile possession during

the statutory period.” Here, the trial justice found that “[p]laintiff made several arrangements

with the owners of the property neighboring hers that illustrated her acceptance of [d]efendants’

superior title.” Because the trial justice found that plaintiffs’ acts of actual and continuous

possession related to the tree fort, inflatable swimming pool, and children’s play in the disputed

area—acts which occurred decades before defendants purchased the property, it is clear that the

“arrangements” between plaintiffs and defendants were made after the ten-year statutory period

had run. See G.L. 1956 § 34-7-1.

       The plaintiffs argue that the “arrangements” were made to settle an ongoing dispute, and

thus cannot be considered in determining whether Mrs. DiPippo’s possession was under claim of

right. To support this argument, plaintiffs aver that defendants’ January 10, 2004 letter advising

that they would file a notice to contest adverse possession marks the beginning of the ongoing

dispute. Accordingly, they assert that the signed agreement between the parties, dated April 22,

2005, is not an objective manifestation of defendants’ superior title, but rather, is an attempt to

settle an ongoing dispute.

       It is clear, however, that the trial justice did not base his decision solely on the 2005

agreement.    The trial justice also found “that there are declarations by [p]laintiff[s] of

[d]efendants’ superior title. When the Sperlings became the owners of the property [Mrs.

DiPippo] asked for permission to anchor the hammock in the disputed area. Defendants allowed

her to do so, conditioned on an indemnification agreement * * *.” While the indemnification

agreement is dated 2005, both Mrs. DiPippo and Mr. Sperling testified to having a conversation

in 2003, although their testimony regarding the content of the 2003 discussion differs. After

carefully reviewing the trial justice’s decision, we are satisfied that he was not clearly wrong in



                                              - 10 -
finding that Mrs. DiPippo “acknowledged that someone else had superior title over the disputed

property by asking for permission” to use the area shortly after the Sperlings purchased the

property.

                                                B

                                      The 2005 Agreement

         Even assuming, arguendo, that the trial justice relied solely on the post-dispute 2005

indemnification agreement, we remain unconvinced that this agreement represents an attempt to

settle the ongoing dispute over ownership of the property.       The plaintiffs characterize the

agreement as one “whereby [Mrs. DiPippo] agreed to treat the disputed property as

[defendants’], not hers, provided the Sperlings allowed her to place her hammock on the disputed

property, and provided further that she indemnify them for any claims.” The assertion that Mrs.

DiPippo “agreed to treat the disputed property” as the Sperlings’ is plainly not reflected in the

indemnification agreement.

         The agreement contains no fewer than eleven references by defendants to the disputed

area as “our property”; two of those references serve to distinguish the disputed area from “your

property.” Further, the statement that Mrs. DiPippo signed at the bottom of that correspondence

reads:

                         “I, Joyce DiPippo, hereby agree to the terms set forth in
                this letter and acknowledge that I have obtained the permission of
                Louis and Rebecca Sperling to place and use a hammock on their
                property. I further agree to indemnify them and hold them
                harmless for any injury which may occur to myself or to my guests
                while using the hammock on their property.”

At no point in the document is there any reference to plaintiffs having any claim to the disputed

area or to their agreeing to “treat the disputed property” as belonging to defendants. The letter




                                              - 11 -
contains no reservation of rights; and, importantly, plaintiffs do not promise not to file a claim in

exchange for permission to use the property.

       The plaintiffs also state that they entered the agreement “hoping that it would bring peace

and closure to the boundary dispute.” There is, however, no mention of any such dispute within

the document. Absent a promise to refrain from litigation over the disputed area, we fail to see

how this letter could operate to resolve the dispute over the property. Rather, we read the

agreement as a straightforward grant of permission to use the land for a very limited purpose

(hanging a hammock) in exchange for a promise to hold the landowner-defendants harmless

from any injury that might result from that use.

       Accordingly, because we do not find that the 2005 agreement was entered into to settle an

ongoing dispute, it was not error for the trial justice to consider it as an objective manifestation

of the defendants’ superior title.     As we held in Cahill, 11 A.3d at 93, although such a

manifestation does not automatically invalidate the plaintiffs’ claim, it is “poignantly relevant to

the ultimate determination of claim of right and hostile possession during the statutory period.”

The clear and convincing standard presents a high hurdle to a would-be adverse possessor; the

evidence proffered in this case fails to meet that hurdle.

                                                   IV

                                            Conclusion

       For the reasons stated herein, we affirm the judgment of the Superior Court. The record

of this case shall be returned to the Superior Court.




                                                - 12 -
                            RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        Joyce DiPippo, Individually and as Trustee of the Joyce DiPippo
                      Living Trust dated June 10, 1992 et al. v. Louis Sperling et al.

CASE NO:              No. 2012-14-Appeal.
                      (KC 09-968)

COURT:                Supreme Court

DATE OPINION FILED: April 12, 2013

JUSTICES:             Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

WRITTEN BY:           Chief Justice Paul A. Suttell

SOURCE OF APPEAL:     Kent County Superior Court

JUDGE FROM LOWER COURT:

                      Associate Justice Brian P. Stern

ATTORNEYS ON APPEAL:

                      For Plaintiffs: Nicholas Gorham, Esq.

                      For Defendants: Barry J. Kusinitz, Esq.
