                                                                Supreme Court

                                                                No. 2013-257-Appeal.
                                                                (PC 12-5685)

           Hines Road, LLC                 :

                   v.                      :

  Neil Hall, in his capacity as Building   :
Inspector for the Town of Cumberland 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. 2013-257-Appeal.
                                                                      (PC 12-5685)

               Hines Road, LLC                  :

                       v.                       :

      Neil Hall, in his capacity as Building    :
    Inspector for the Town of Cumberland et
                         al.


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

                                           OPINION

         Justice Robinson, for the Court. The petitioners, Joseph and Angitta DiOrio, appeal

from an order by the Providence County Superior Court denying their motion (filed pursuant to

Rule 24 of the Superior Court Rules of Civil Procedure) to intervene in the underlying civil

action commenced by the plaintiff, Hines Road, LLC, against the defendants, collectively

referred to as the Town of Cumberland (the Town).1 This case came before the Supreme Court

pursuant to an order directing the parties to appear and show cause why the issues raised in this



1
       For the sake of brevity, we shall refer only once to the multitude of defendants named in
the complaint in the underlying action: Neil Hall, in his capacity as Building Inspector for the
Town of Cumberland; John McCoy, in his capacity as Chairman of the Town of Cumberland
Zoning Board of Appeals; Carl Zoubra, in his capacity as Co-Chairman of the Town of
Cumberland Zoning Board of Appeals; Peter Vosdagalis, in his capacity as a member of the
Town of Cumberland Zoning Board of Appeals; Robert Chaput, in his capacity as a member of
the Town of Cumberland Zoning Board of Appeals; Edmond McGrath, in his capacity as a
member of the Town of Cumberland Zoning Board of Appeals; Nicholas Goodier, in his
capacity as a member of the Town of Cumberland Zoning Board of Appeals; Richard Barret, in
his capacity as a member of the Town of Cumberland Zoning Board of Appeals; and the Town
of Cumberland, as a municipal entity.


                                                 -1-
appeal should not be summarily decided.         After a careful review of the record and after

consideration of the parties’ written and oral submissions, we are satisfied that cause has not

been shown and that this appeal may be decided at this time. For the reasons set forth in this

opinion, we affirm the order of the Superior Court denying the motion to intervene.

                                                 I

                                        Facts and Travel

       The petitioners Joseph and Angitta DiOrio live in Cumberland, Rhode Island, on a parcel

of property identified in the record as Cumberland Tax Assessor’s Plat No. 49, Lot No. 56 (the

DiOrio property),2 which directly abuts property identified in the record as Cumberland Tax

Assessor’s Plat No. 49, Lot No. 57 (the Hines Road property),3 owned by plaintiff Hines Road,

LLC. In 2006, plaintiff built a retaining wall on the Hines Road property in close proximity to

the DiOrio property. According to petitioners, in 2008, defendant, the Town, ordered plaintiff to

remove said retaining wall and “return the Hines Road property to its original configuration.”

However, petitioners assert that plaintiff failed to comply with that order; and, according to

petitioners’ filings, in both March and September of 2010, the Town proceeded to issue two

separate Notices of Violation to plaintiff with respect to the Hines Road property.          The

petitioners further allege that each Notice cited plaintiff’s failure to comply with permit

requirements promulgated by the Town and that each Notice included both a stop-work order

and a requirement that plaintiff remove the retaining wall.4




2
       The DiOrio property is located at 21 Georgiana Drive in Cumberland.
3
       The Hines Road property is located at 138 Wrentham Road in Cumberland.
4
      The stop-work order related to construction of the retaining wall, according to an
agreement between plaintiff and the Town, which is described infra.


                                               -2-
       In October of 2010, plaintiff appealed to the Town’s Zoning Board of Review (the

Board) with respect to the Notices of Violation.        However, in March of 2011, during the

pendency of that appeal, plaintiff and the Town came to an agreement regarding the retaining

wall (the Agreement). The Agreement provided, inter alia, that plaintiff would: (1) complete

certain tasks related to the permitting and construction of the retaining wall on the Hines Road

property; and (2) withdraw its appeal to the Board. In return, the Agreement indicated that the

Town would, inter alia, withdraw its stop-work order relative to the retaining wall on the Hines

Road property. Subsequent to the execution of the Agreement, plaintiff withdrew its appeal to

the Board as promised.

       It was at that point in time, after the parties had entered into the Agreement, that

petitioners undertook their first attempt to challenge the arrangement that had been agreed to by

plaintiff and the Town; they did so by filing an appeal with the Board. However, in October of

2011, the Board determined that it did not have jurisdiction over petitioners’ challenge (the 2011

Board decision).5    According to plaintiff’s Superior Court complaint, the Board held that,

“because [the Agreement] was a contract between the Town and a private party [viz., plaintiff],”

the Board lacked jurisdiction. Significantly, petitioners did not appeal from that decision.

       In spite of the existing arrangement between plaintiff and the Town, by July of 2012 it

appeared that plaintiff had not yet completed the work contemplated by the Agreement with

respect to the retaining wall on the Hines Road property. The Town proceeded to issue its third

Notice of Violation to plaintiff, citing (among other violations) plaintiff’s continued failure “to


5
         We note that the record does not contain a copy of the 2011 Board decision concerning
its own jurisdiction that is referenced in the text; as a result, we must rely upon the parties’
filings to discern the details of that decision. Accordingly, from the parties’ filings, it is unclear
whether the 2011 Board decision related solely to petitioners’ challenge, or whether it addressed
plaintiff’s earlier appeal to the Board. Regardless, it is clear that the Board declined to exercise
its jurisdiction in the matter.


                                                -3-
remove the unsafe wall at the [Hines Road property].” As it had done with respect to earlier

Notices, plaintiff appealed to the Board from the issuance of that third Notice. In response, in

October of 2012, the Board determined that it lacked jurisdiction over the matter (the 2012 Board

decision). Accordingly, unable to obtain redress from the Board, in November of 2012 plaintiff

filed a complaint in Superior Court in order to litigate issues relating to the Agreement, thereby

commencing the underlying action, in which the parties are plaintiff and the Town. Each count

of the complaint directly relates to the Agreement and the parties’ ability to litigate its status

before the Board and in Superior Court. Specifically, the complaint contains four counts: (1) a

claim for declaratory judgment regarding the Superior Court’s jurisdiction to “declare the rights

and responsibilities of the Parties pursuant to the Agreement” (Count One); (2) a claim for

equitable estoppel pertaining to the procedural propriety of plaintiff’s attempts to appeal from the

2012 Notice of Violation (Count Two); (3) a claim for injunctive relief to prevent the Town from

undertaking legal action against plaintiff in regard to the Hines Road property until the Superior

Court “determine[s] the rights, duties and obligations of the parties pursuant to the Agreement

and applicable law” (Count Three); and (4) a claim that the 2012 Board decision to the effect that

the Board lacked jurisdiction over plaintiff’s appeal prejudiced “the substantial rights of * * *

Plaintiff” (Count Four). In sum, all four counts related to either the Agreement between plaintiff

and the Town or plaintiff’s appeal from the 2012 Board decision determining that the Board

lacked jurisdiction.

       Some months later, in February of 2013, petitioners filed a motion to intervene in the

underlying Superior Court action pursuant to Rule 24. The petitioners argued that they were

entitled to intervene as a matter of right pursuant to Rule 24(a) as abutting property owners. In

addition, petitioners argued that they should be permitted to intervene pursuant to Rule 24(b),




                                               -4-
which rule deals with permissive intervention. The plaintiff objected to petitioners’ motion to

intervene; the Town, by contrast, did not file any response to petitioners’ motion.               After

conducting a hearing on the motion (attended by the parties and the would-be intervenors), the

hearing justice rendered a bench decision denying petitioners’ motion to intervene with respect

to both intervention as a matter of right and permissive intervention.

        First, with regard to intervention as a matter of right, the hearing justice ruled that the

petitioners were not able to demonstrate that they had a right to intervene pursuant to Rule 24(a);

in so ruling, the hearing justice was guided by the four-factor test articulated by this Court in

Tonetti Enterprises, LLC v. Mendon Road Leasing Corp., 943 A.2d 1063, 1072-73 (R.I. 2008)

(hereinafter Tonetti). In our opinion in Tonetti, we described the four-factor test as follows:

                “Under Rule 24(a)(2), an applicant will be granted intervention as
                of right if [(1)] the applicant files a timely application * * * ,
                [(2)] the applicant claims an interest relating to the property or
                transaction which is the subject matter of the action, [(3)] the
                disposition of the action may as a practical matter impair or
                impede the applicant’s ability to protect that interest, and [(4)] the
                applicant’s interest is not adequately represented by current parties
                to the action * * * .” Tonetti, 943 A.2d at 1072-73 (emphasis
                added).

        The hearing justice began his analysis by focusing on the first factor, finding that

petitioners’ motion was timely filed. However, he then proceeded to find that petitioners had

failed to satisfy the second and third factors of the Tonetti test.

        Specifically, as to the second factor, the hearing justice stated that, although petitioners’

interest in the underlying action was “close,” he found that interest to be “contingent upon a

determination of the Agreement,” and he stated that “[t]he [A]greement is between the parties

[i.e., plaintiff and the Town], and the DiOrios [petitioners] are not a party to that [A]greement.”




                                                 -5-
As such, the hearing justice concluded that petitioners’ interest did not sufficiently relate to the

subject matter of the underlying action so as to satisfy the second factor of the Tonetti test.

        Next, with respect to the third factor of the Tonetti test, the hearing justice found that the

underlying action did not “threaten to impede [petitioners’] ability to protect [their] interest

because * * * there [were] other legal actions that [petitioners] could have pursued regarding the

wall.” Thus, in the hearing justice’s estimation, the disposition of the underlying action would

not impair petitioners’ ability to protect their own interests; for that reason, he concluded that

petitioners had failed to satisfy the third factor of the Tonetti test.

        Notwithstanding his negative findings with respect to the second and third factors, the

hearing justice went on to find that petitioners had made a “satisfactory showing” regarding the

fourth factor of the Tonetti test—namely, that the existing parties in the underlying action did not

adequately represent petitioners’ interests. Nevertheless, having determined that petitioners had

failed to demonstrate that they satisfied (as required) all four factors of the Tonetti test, the

hearing justice concluded that petitioners were not entitled to intervene as of right under Rule

24(a)(2). See Tonetti, 943 A.2d at 1072-73.

        Finally, the hearing justice turned to petitioners’ contention that they should be permitted

to intervene under Rule 24(b)(2) (permissive intervention). Pursuant to Rule 24(b)(2), “[u]pon

timely application anyone may be permitted to intervene in an action * * * [w]hen an applicant’s

claim or defense and the main action have a question of law or fact in common.” In light of the

hearing justice’s earlier finding that the motion was timely, he moved directly to consider

whether there existed a common question of law or fact between petitioners’ claims and the

underlying action. The hearing justice found, however, that petitioners had not demonstrated the

existence of a common question of law or fact because “the issues to be litigated in [the




                                                  -6-
underlying action] are not the same factual or legal issues that would be litigated in any action

that [petitioners] would seek to litigate regarding their interest vis-à-vis the Hines Road

property.” On that basis, the hearing justice concluded that petitioners had failed to demonstrate

that they should be accorded the status of permissive intervenors.

       In sum, the hearing justice found that petitioners could neither demonstrate their right to

intervene under Rule 24(a)(2) nor show an adequate basis to justify permissive intervention

under Rule 24(b)(2); accordingly, he denied petitioners’ Rule 24 motion to intervene. From the

hearing justice’s decision, petitioners timely appealed.

                                                  II

                                        Standard of Review

       Although we have described Rhode Island precedent concerning motions for intervention

as “sparse,” Tonetti, 943 A.2d at 1073; Credit Union Central Falls v. Groff, 871 A.2d 364, 367

(R.I. 2005), we have nonetheless indicated with respect to intervention as of right that “[t]his

Court reviews a trial justice’s grant of a motion to intervene for abuse of discretion, reversing

only if the justice failed to apply the standards set forth in Rule 24(a)(2), or otherwise committed

clear error.” Town of Coventry v. Baird Properties, LLC, 13 A.3d 614, 619 (R.I. 2011); see also

Marteg Corp. v. Zoning Board of Review of Warwick, 425 A.2d 1240, 1242 (R.I. 1981) (“[I]t is

well settled that the determination of timeliness [of an application for intervention] is a matter

committed to the sound discretion of the trial justice.”).

       Similarly, we have also utilized the abuse of discretion standard of review in the context

of Rule 24(b)(2)—viz., permissive intervention. See Town of Smithfield v. Fanning, 602 A.2d

939, 943-44 (R.I. 1992) (holding that the trial justice did not abuse his discretion by declining to

grant permissive intervention under Rule 24(b)).




                                                -7-
                                                III

                                             Analysis

       The petitioners raise three arguments on appeal. First, noting the fact that petitioners’

property “directly abuts” the Hines Road property and relying upon their interpretation of our

decision in Caran v. Freda, 108 R.I. 748, 279 A.2d 405 (1971), petitioners argue that their status

as abutting property owners entitles them to intervene as a matter of right in the underlying

action between plaintiff and the Town. Second, petitioners contend that the hearing justice erred

in ruling that their interest in the instant litigation is “contingent” upon the Agreement between

plaintiff and the Town. Specifically, petitioners argue that the Notice of Violation at issue in the

2012 Board decision was not related “in any way” to the Agreement made between plaintiff and

the Town. Finally, petitioners argue that their failure to appeal from the original 2011 Board

decision determining that it lacked jurisdiction over petitioners’ appeal ought not to be “held

against” them. We shall address each of petitioners’ arguments below.

                                                 A

                             Rights of Abutting Property Owners

       We begin with petitioners’ contention that the Caran decision affords them the right to

intervene in the underlying action. To put that contention in context, we shall first refresh the

reader’s recollection of our ruling in that case. In Caran, 108 R.I. at 749-50, 279 A.2d at 406-07,

a town zoning board of review held a hearing on an application for a variance related to the

proposed construction of a shopping center. Those who appeared before the board included the

applicants themselves as well as owners of property abutting the site at issue; the attorney for

those abutters entered an appearance at the hearing and voiced their concerns regarding the

variance at issue. Id. at 750, 279 A.2d at 406. The town ultimately denied the application for the




                                               -8-
variance, and the applicants appealed to the Superior Court, serving a complaint upon the town

solicitor, but failing to serve the attorney who had represented the abutting property owners at

the zoning board of review hearing. Id. Our opinion in the Caran case passed upon the issue of

whether to apply a procedural rule requiring service of the complaint upon the abutting property

owners in the context of the applicants’ appeal to the Superior Court; however, this Court also

had occasion to pass upon the propriety of intervention by the abutting property owners in the

initial application hearing before the town’s zoning board of review. Id. at 753, 279 A.2d at 408.

Specifically, we stated:

               “[The] petitioners, as abutting property owners, have a special
               interest in the pending appeal. If the right of appeal is lost to the
               board, it is conceivable that petitioners would be confronted with a
               threat of loss in the value and enjoyment of their property. This
               potential threat gives petitioners the right to invoke the mandatory
               provisions of Rule 24(a).” Caran, 108 R.I. at 753, 279 A.2d at 408.

Upon scrutinizing the facts of the Caran case as described above, it is apparent that the attendant

circumstances in that case differ significantly from those at bar. Most critically, in Caran the

abutting property owners had a clear interest in the ultimate decision on the merits regarding a

zoning variance that would permit construction of a shopping center on land directly adjoining

their property. Specifically, the eventual disposition of the applicants’ appeal would determine

whether or not the shopping center would be constructed. Id.

       By contrast, in the instant case, an adjudication concerning the Agreement between

plaintiff and the Town would not yield a decision as to whether or not to construct the retaining

wall. Unlike the petitioners in Caran, who, if not permitted to intervene, may have found

themselves living next to a shopping center without having had a voice in the zoning decision

which would have permitted its construction, petitioners in the instant case are already living

with what is in their eyes the rough equivalent of that shopping center, because the wall has



                                               -9-
already been built. Furthermore, although the fact that the wall has been built may appear to

support petitioners’ argument that their circumstances are similar to—or perhaps more dire

than—that of the abutting property owners in Caran, we emphasize that the underlying action in

the instant case simply permits plaintiff and the Town to resolve the issues surrounding whether

or not plaintiff has lived up to the Agreement—an Agreement that relates to the wall, but is a

contract to which petitioners are not a party. In other words, petitioners’ chosen route to attack

the construction of the wall is both untimely (the wall has already been built) and procedurally

inappropriate (since the instant case relates not to the merits of constructing the wall, but rather

the Agreement between plaintiff and the Town).

       In sum, we are not persuaded that petitioners’ status as abutting property owners ipso

facto entitles them to intervene in this particular case as a matter of right. We therefore hold that

the hearing justice did not err in concluding that petitioners were not entitled to intervene as a

matter of right pursuant to our decision in Caran.

                                                 B

                      The Petitioners’ Interest in the Underlying Action

       The petitioners next argue that the hearing justice erred in ruling that their interest in the

Superior Court action is merely “contingent” upon the Agreement between plaintiff and the

Town. In Tonetti, we addressed that consideration explicitly, stating that “[a]n intervenor’s

interest must bear a sufficiently close relationship to the dispute between the original litigants

and the interest must be direct, not contingent.” Tonetti, 943 A.2d at 1073 (emphasis added)

(internal quotation marks omitted). By its very nature, the underlying action in the case at bar

concerns the dispute between plaintiff and the Town; the litigation centers on the Agreement

between those parties and whether or not the Board could exercise jurisdiction over the dispute




                                               - 10 -
between them. Furthermore, the four counts of the complaint relate to a claim for declaratory

judgment (regarding the Agreement), a claim for equitable estoppel (pertaining to plaintiff’s

attempts to appeal from the 2012 Notice of Violation), a claim for injunctive relief to prevent the

Town from undertaking legal action against plaintiff until the underlying action is resolved, and

a claim that the 2012 Board decision (to the effect that it lacked jurisdiction over plaintiff’s

appeal) prejudiced plaintiff’s rights.

        It is clear that the underlying action concerns the Agreement between plaintiff and the

Town. Any legally cognizable interest of petitioners in the underlying action depends upon the

resolution of the Agreement and may be fairly characterized as “contingent” upon such

resolution. See Tonetti, 943 A.2d at 1073. Accordingly, we agree with the hearing justice—

petitioners’ interest in the underlying action is “contingent” upon the Agreement between

plaintiff and the Town; consequently, we hold that the hearing justice did not abuse his discretion

in so ruling.

                                                 C

                The Petitioners’ Failure to Appeal from the 2011 Board Decision

        Finally, petitioners contend that the hearing justice erred in considering their failure to

appeal from the 2011 Board decision as a factor weighing against intervention in the underlying

action. However, even if we were persuaded that petitioners’ failure to appeal from the 2011

Board decision ought not to be considered in conjunction with whether they satisfied the four

Tonetti factors, the hearing justice’s decision denying intervention did not constitute an abuse of

discretion—simply because there were other grounds for his finding that the disposition of the

action did not impede petitioners’ ability to protect their interest in their property. Notably, the

hearing justice found: (1) that the wall had already been constructed; and (2) that other legal




                                               - 11 -
avenues existed that petitioners could have initiated. We are persuaded that those two findings

suffice to show that the disposition of the action would not impede petitioners’ ability to protect

their interest in their property.    First, any interest that petitioners had in preventing the

construction of the wall has been precluded by its construction, which occurred before plaintiff

even initiated the underlying action.     Second, with respect to the ability of petitioners to

undertake other legal actions, we note that petitioners conceded at oral argument that they have

initiated a separate legal proceeding with respect to their concerns regarding the wall as it affects

the DiOrio property. Accordingly, we hold that the hearing justice did not commit reversible

error in considering petitioners’ failure to appeal from the 2011 Board decision as one factor

weighing against intervention.

       In sum, we hold that the petitioners have not raised any arguments that demonstrate that

the hearing justice abused his discretion in finding that the petitioners failed to fulfill the four

Tonetti factors, with respect to Rule 24(a)(2) intervention, nor have the petitioners proffered any

convincing arguments that demonstrate that the hearing justice abused his discretion in finding

that the petitioners were not entitled to permissive intervention.6 As such, we hold that the

hearing justice did not abuse his discretion in denying the petitioners’ motion to intervene.



6
        We note that all three of petitioners’ arguments on appeal have been presented supra, and
that those contentions noticeably lack any specific legal arguments that relate to whether or not
the hearing justice erred in denying petitioners’ motion for permissive intervention. To the
extent that petitioners’ claims of error on appeal related to the hearing justice’s decision on their
motion for permissive intervention, we note that our analysis above has effectively disposed of
these arguments. Should there exist other legal arguments for permissive intervention by
petitioners in the underlying action, petitioners have failed to raise those arguments before us,
and, on the basis of our well-settled precedent, we deem those arguments to be waived. See
Bowen Court Associates v. Ernst & Young, LLP, 818 A.2d 721, 728 (R.I. 2003) (“We have
repeatedly held, consistent with Article I, Rule 16(a) of the Supreme Court Rules of Appellate
Procedure, that a party’s failure to include a particular issue in his, her, or its brief on appeal
results in a waiver of that issue. * * * Indeed, Rule 16(a) includes language embodying this rule,
providing that [e]rrors not claimed, questions not raised and points not made [in a party’s brief]


                                               - 12 -
                                                IV

                                           Conclusion

       We affirm the Superior Court’s decision to deny the petitioners’ motion to intervene.

The record may be returned to that tribunal.




ordinarily will be treated as waived and not considered by the court.”) (internal quotation marks
omitted); see also Wilkinson v. State Crime Laboratory Commission, 788 A.2d 1129, 1131 n. 1
(R.I. 2002).


                                               - 13 -
                            RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        Hines Road, LLC v. Neil Hall, in his capacity as Building
                      Inspector for the Town of Cumberland et al.

CASE NO:              No. 2013-257-Appeal.
                      (PC 12-5685)

COURT:                Supreme Court

DATE OPINION FILED: April 28, 2015

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

WRITTEN BY:           Associate Justice William P. Robinson III

SOURCE OF APPEAL:     Providence County Superior Court

JUDGE FROM LOWER COURT:

                      Associate Justice Luis M. Matos

ATTORNEYS ON APPEAL:

                      For Plaintiff: Michael A. Kelly, Esq.

                      For Petitioners: Jennifer R. Cervenka, Esq.
