June 20, 2018



                                                                      Supreme Court

                                                                      No. 2017-127-Appeal.
                                                                      (PC 14-148)


                William Coscina et al.             :

                           v.                      :

                Craig J. DiPetrillo 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. 2017-127-Appeal.
                                                                  (PC 14-148)


          William Coscina et al.              :

                     v.                       :

          Craig J. DiPetrillo et al.          :


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

                                          OPINION

       Justice Goldberg, for the Court. This case came before the Supreme Court on March 6,

2018, pursuant to an order directing the parties to appear and show cause why the issues raised in

this appeal should not be summarily decided. The defendants, Craig J. DiPetrillo and Rebecca

M. DiPetrillo (defendants), appeal from a Superior Court judgment granting summary judgment

in favor of the plaintiffs, William Coscina and Cheryl L. Bailey Coscina (plaintiffs), on count

one of the plaintiffs’ complaint, sounding in adverse possession. After hearing the arguments of

counsel and examining the memoranda submitted by the parties, we are of the opinion that cause

has not been shown and that this case should be decided without further briefing or argument.

We vacate the judgment of the Superior Court.

                                        Facts and Travel

       The factual and procedural history of the case at bar is perplexing and unsettled. The

plaintiffs own property located at 100 Paris Irons Road in Glocester (the Coscina property), and

defendants own the abutting property located at 86 Paris Irons Road (the DiPetrillo property).

This appeal arises out of a boundary dispute between the parties with respect to two tracts of land

known as “Cheryl’s Front Pasture” and “Cheryl’s Back Pasture.” Although both tracts are part

                                               -1-
of the DiPetrillo property, plaintiffs claim that they used both of these tracts as their own

property for more than thirty-six years. The complaint alleged that Cheryl began using the front

pasture and back pasture soon after she purchased the property in 1979, and that William,

Cheryl’s husband, began using the tracts in 2008.1 With respect to the front pasture, plaintiffs

claim that Cheryl used this area to keep farm animals and that her children rode all-terrain

vehicles (ATVs) in that area as well. As to the back pasture, plaintiffs allege that Cheryl

“re establish[ed] a neglected overgrown pasture by cutting saplings and small trees, clearing

brush and continually mowing the pasture * * *.” The plaintiffs’ complaint further alleged that

plaintiffs installed and maintained six-foot metal posts along the boundary line between Cheryl’s

Back Pasture and the DiPetrillo property, and maintained a stone wall along the boundary line of

Cheryl’s Front Pasture and the DiPetrillo property. The defendants purchased the 86 Paris Irons

Road property in October 2013.

       On February 4, 2014, plaintiffs filed a four-count first amended complaint. In count one,

plaintiffs requested that they be adjudged the rightful owners of Cheryl’s Front Pasture and

Cheryl’s Back Pasture by virtue of adverse possession; they alleged that Cheryl used both tracts

for a period in excess of ten years, and that their use of the tracts was actual, open, notorious,

hostile, continuous, exclusive, and under a claim of right. In counts two and three, plaintiffs

sought injunctive relief and declaratory relief, respectively. In count four, plaintiffs alleged that

the stone wall that encloses Cheryl’s Front Pasture has been acknowledged as the boundary line

between the parties’ properties for a period in excess of ten years. In their answer to plaintiffs’




1
  Cheryl Coscina purchased the property at 100 Paris Irons Road with her then husband, Calvin
C. Bailey. Mr. Bailey resided at the property with Cheryl from 1979 until 2004. In 2008, a
three-tenths interest in the 100 Paris Irons Road property was conveyed to William Coscina,
Cheryl’s current husband, with whom she resides at the property.
                                                -2-
complaint, defendants denied the allegations and filed a counterclaim seeking to quiet title with

respect to the areas in dispute.

       On May 22, 2015, plaintiffs moved for summary judgment on all four counts of the

complaint and on defendants’ counterclaim. In support of their motion, plaintiffs submitted

affidavits, maps, and photographic evidence of the property.2 Appended to each of the nineteen

affidavits was a copy of a land survey similar to the land survey attached to plaintiffs’ complaint,

but with additional handwritten notes identifying the front and back pastures, a horse enclosure,

and woods to the west of the back pasture. The defendants filed an objection to plaintiffs’

motion for summary judgment on the basis of alleged inconsistencies with respect to the

boundaries of the areas in dispute. Specifically, defendants claimed that the area demarcated as

Cheryl’s Front Pasture in the affidavits was different from the area that had been identified as

Cheryl’s Front Pasture in a demand letter that plaintiffs sent to defendants before this action was

filed. The defendants also contended that plaintiffs had changed their allegations regarding the

stone wall boundary divider.       The defendants also argued that the “form” style affidavits

submitted by plaintiffs contained conclusions of law and were simply “boilerplate.” Finally,

defendants averred that plaintiffs failed to provide an affidavit from a civil engineer or land

surveyor with respect to the boundaries of the claimed tracts. Counsel for plaintiffs responded to

defendants’ objection by filing her own affidavit declaring that she had prepared the handwritten

notes on the copy of the land survey attached to the affidavits in support of plaintiffs’ motion for

summary judgment.




2
 Affidavits were submitted by Cheryl, William, Cheryl’s ex-husband Calvin Bailey, and sixteen
other individuals. All nineteen affidavits confirmed plaintiffs’ averments with respect to their
use of the pastures in dispute.
                                               -3-
       A hearing on plaintiffs’ motion for summary judgment was held on July 14, 2015. The

hearing justice noted that a metes and bounds description of Cheryl’s Back Pasture was not set

forth on the survey that was attached to the complaint, and he questioned how a judgment for

adverse possession could be entered without a metes and bounds description of the back pasture.

The defendants agreed with the hearing justice’s concern, arguing that a material issue of fact

existed because the survey that plaintiffs submitted did not contain a metes and bounds

description of the back pasture and because the boundaries of the contested areas kept changing:

               “[COUNSEL FOR DEFENDANTS]: But in each of the surveys or
               self-purported surveys that have been presented, that area changes.
               In fact, at some point it’s straight down. At some point it’s curved.
               There is about three or four different plot plans that have been
               introduced that differentiate that whole side yard, and it’s the
               contention of the defendants that they did use some of it. They
               may have used some of it but they’re claiming more and more of
               that and each time we come or get documentation regarding it, that
               side pasture or back pasture continues to change and that’s been
               the issue on the dimensions and the property lines itself.”

Nonetheless, the hearing justice granted plaintiffs’ motion for summary judgment solely as to the

adverse possession count. Although the hearing justice found no genuine issue of material fact

as to whether plaintiffs had established ownership by adverse possession, he was still troubled by

the vagueness of the purported boundary line:

               “So the [c]ourt finds there is no genuine issue of material fact as to
               whether or not there has been adverse possession of the
               D’Petrillos’ property. The [c]ourt, however, does believe there is
               an issue of fact as to what is the actual boundary line for purposes
               of preparing a judgment of [metes] and bounds on the back line. I
               believe it’s been explained there that it goes to the woods so the
               [c]ourt is going to grant—it’s not quite liability in damages
               because there are no damages, you’re not seeking damages, but
               I’m granting summary judgment on the fact that there has been
               adverse possession.”




                                                -4-
The hearing justice suggested that a survey of the back pasture was needed and that a more

accurate survey of the front pasture should be conducted. Despite granting summary judgment

for adverse possession, the hearing justice decided to allow defendants to dispute whether or not

“that is the actual boundary[.]” An order was entered on August 13, 2015, granting plaintiffs’

motion for summary judgment as to the first count of their complaint, denying summary

judgment with respect to the remaining counts of their complaint and defendants’ counterclaim,

and requiring plaintiffs to submit a new survey of the property in dispute to the court with an

accurate metes and bounds description of the boundary lines. However, according to defendants,

plaintiffs were observed clearing the disputed property after this ruling.

       On August 20, 2015, plaintiffs filed a motion for entry of judgment for adverse

possession and submitted a new survey of Cheryl’s Front Pasture and Cheryl’s Back Pasture

containing a metes and bounds description. The defendants objected to plaintiffs’ motion due to

the presence of disputed material facts based on their contention that plaintiffs have

“continuously evolved and changed [the shape and size of the land in question] just during the

course of this proceeding.” The matter was set down for an evidentiary hearing.

       An evidentiary hearing took place on the question of where the boundary lines existed for

the parcels. The plaintiffs presented the testimony of Richard Bzdyra, a licensed land surveyor,

who testified that an ancient stone wall marked the boundary of the front pasture and that a

demarcation of a tree line marked the boundary of the back pasture.3 Also, Mr. DiPetrillo

testified at the hearing about the uncertainties surrounding the extent of plaintiffs’ claims. He

testified that he used the back pasture to host cookouts and as a throughway into the woods, and

that he cut the grass. According to Mr. DiPetrillo, when plaintiffs first informed him that they

3
 This testimony conflicted with the allegations in plaintiffs’ complaint that six-foot metal posts
actually marked the boundary of the back pasture.
                                                -5-
were claiming part of his property by adverse possession, Cheryl’s Back Pasture was not part of

the claim. Notably, Mr. DiPetrillo testified that, the day after the July 14, 2015 summary

judgment hearing, there was an individual “plowing the overgrowth, trees and everything further

back [on the back pasture].” The hearing justice acknowledged this factual dispute, noting that

plaintiffs did not deny that someone had plowed the overgrowth on the back pasture after

summary judgment was granted on the adverse possession claim. The hearing justice later asked

Cheryl whether this was an area she had cleared in the past, to which Cheryl replied, “I used to

clear that area.” The hearing justice ultimately determined that this newly-cleared area was

included in Cheryl’s Back Pasture as set forth in the affidavits:

               “I wanted to know whether the cleared area was included in what
               she was referring to [in] her affidavit or not because that’s the only
               thing in my mind. If it had not been, then the line would have
               gone to the cleared area but she said it was, and it was consistent
               with her affidavit and clearing it, whether she violated the consent
               agreement or not, is not before me but it is obvious in my mind
               that this cleared area was part of the back pasture.”

The hearing justice found Bzdyra to be a credible witness and accepted his testimony with

respect to the boundary lines of both the front and back pastures.

       The hearing justice stated that he was reluctant to grant plaintiffs’ motion for entry of

judgment in light of the unresolved remaining claims in plaintiffs’ complaint and defendants’

counterclaim. However, after the parties filed a stipulation agreeing to dismiss the remaining

counts of plaintiffs’ complaint and all counts of defendants’ counterclaim, judgment entered on

November 25, 2015, in favor of plaintiffs on count one of their complaint. The defendants

timely appealed.

       On appeal, defendants argue that: (1) summary judgment was improper because an issue

of material fact existed with respect to the boundary line of the back pasture; (2) the survey



                                                -6-
submitted by plaintiffs in support of summary judgment would not have been admissible at trial

because it was unauthenticated and contained handwritten notes inserted by plaintiffs’ counsel;

and (3) the evidentiary hearing, conducted by the hearing justice, did not comply with either

Rule 56(c) or Rule 54(b) of the Superior Court Rules of Civil Procedure.4




4
 Rule 56(c) of the Superior Court Rules of Civil Procedure, titled “Motion and Proceedings
Thereon,” provides:

              “The motion shall be served at least ten (10) days before the time
              fixed for the hearing. The adverse party prior to the day of hearing
              may serve opposing affidavits. The judgment sought shall be
              rendered forthwith if the pleadings, depositions, documents,
              electronically stored information, answers to interrogatories, and
              admissions on file, together with the affidavits, if any, show that
              there is no genuine issue as to any material fact and that the
              moving party is entitled to judgment as matter of law. A summary
              judgment, interlocutory in character, may be rendered on the issue
              of liability alone although there is a genuine issue as to the amount
              of damages.”

Rule 54(b) of the Superior Court Rules of Civil Procedure, titled “Judgment Upon Multiple
Claims or Involving Multiple Parties,” provides:

              “When more than one (1) claim for relief is presented in an action,
              whether as a claim, counterclaim, cross-claim, or third party claim,
              or when multiple parties are involved, the court may direct the
              entry of a final judgment as to one (1) or more but fewer than all of
              the claims or parties only upon an express determination that there
              is no just reason for delay and upon an express direction for the
              entry of judgment. In the absence of such determination and
              direction, any order or other form of decision, however designated,
              which adjudicates fewer than all the claims or the rights and
              liabilities of fewer than all the parties shall not terminate the action
              as to any of the claims or parties, and the order or other form of
              decision is subject to revision at any time before the entry of
              judgment adjudicating all the claims and the rights and liabilities of
              all the parties.”


                                               -7-
                                       Standard of Review

       This Court reviews a trial justice’s decision granting summary judgment de novo. See

Sola v. Leighton, 45 A.3d 502, 506 (R.I. 2012); Lynch v. Spirit Rent-A-Car, Inc., 965 A.2d 417,

424 (R.I. 2009). It is well established that “[s]ummary judgment is a drastic remedy, and a

motion for summary judgment should be dealt with cautiously.”            Cruz v. DaimlerChrysler

Motors Corp., 66 A.3d 446, 451 (R.I. 2013). Further, “[s]ummary judgment is appropriate only

when the ‘pleadings, depositions, answers to interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to judgment as [a] matter of law.’” Sola, 45 A.3d at 506 (quoting

Plunkett v. State, 869 A.2d 1185, 1187 (R.I. 2005)).

                                             Analysis

       The defendants aver that the hearing justice erred by granting summary judgment on

plaintiffs’ adverse possession claim. We note at the outset that, when he issued his bench

decision, the hearing justice merely concluded that there were no genuine issues of material fact

as to adverse possession, but made no reference to whether adverse possession by plaintiffs had

been established by clear and convincing evidence, which is an essential conclusion in adverse

possession cases; nor did the hearing justice reference the elements essential to a claim for

adverse possession.    See Carnevale v. Dupee, 783 A.2d 404, 410 (R.I. 2001) (“The party

claiming title by adverse possession must prove each of these elements by ‘strict proof, that is,

proof by clear and convincing evidence.’”) (quoting Anthony v. Searle, 681 A.2d 892, 897 (R.I.

1996)). The hearing justice stated:

               “[T]he [c]ourt finds there is no genuine issue of material fact as to
               whether or not there has been adverse possession of the
               DiPetrillos’ property. The [c]ourt, however, does believe there is
               an issue of fact as to what is the actual boundary line for purposes

                                                -8-
               of preparing a judgment of [metes] and bounds on the back line.
               * * * I’m granting summary judgment on the fact that there has
               been adverse possession.”

It is well settled that, “in order to establish adverse possession under [G.L. 1956] § 34-7-1,[5] a

claimant’s possession must be actual, open, notorious, hostile, under claim of right, continuous,

and exclusive.” Anthony, 681 A.2d at 897 (quoting Locke v. O’Brien, 610 A.2d 552, 555 (R.I.

1992)). The hearing justice’s bench decision was devoid of any proper adverse possession

analysis and was conclusory in nature, particularly where the dimensions of the claimed land

were in dispute. In Anthony, this Court promulgated the elemental requirements for adverse

possession and declared, inter alia, that “[a] claimant makes a showing that the possession was

‘hostile’ if a determination is made ‘that the possession of the occupier is to a visible line in all

events, regardless of the location of the true boundary line.’” Id. at 898 (emphasis added)

(quoting LaFreniere v. Sprague, 108 R.I. 43, 50, 271 A.2d 819, 822 (1970)). We think it to be

clear error to simply declare that plaintiffs proved adverse possession without addressing each

element and the uncontradicted evidence that supports it.

5
   General Laws 1956 § 34-7-1, titled “Conclusive title by peaceful possession under claim of
title,” provides:

               “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.”
               (Emphasis added.)
                                                -9-
       Clearly, an accurate description of the “lands, tenements or hereditaments” is an essential

element of the claim itself and not an issue that can be decided in the absence of a trial. The

hearing justice based his decision granting summary judgment largely on the affidavits that

plaintiffs submitted. The survey appended to each affidavit upon which the hearing justice relied

was neither a final nor accurate survey of the property in dispute. After the hearing justice

granted summary judgment, plaintiffs commissioned a new survey of the property containing a

metes and bounds description, which may or may not have been based on activities occurring on

the property after the July 14, 2015 hearing and which significantly differed from the original

survey. The boundary lines to each portion of the claimed property appear different, and the area

appears to have been expanded. We are of the opinion that it was error for the hearing justice to

resolve this contested issue of fact between the parties. Simply put, without a clear demarcation

of the boundary lines, and without clear and convincing evidence of the areas that were adversely

possessed, there can be no summary judgment. See DelSesto v. Lewis, 754 A.2d 91, 95 (R.I.

2000) (holding that disputed material facts about the nature and extent of the contested area’s use

precluded summary judgment); see also Anthony, 681 A.2d at 898 (“[T]he ultimate fact to be

proved in adverse possession is that the claimant has acted toward the land in question as would

an average owner, taking properly into account the geophysical nature of this land.”) (emphasis

added) (quoting Gammons v. Caswell, 447 A.2d 361, 368 (R.I. 1982)). There were genuine

issues of material fact as to the boundaries of the disputed areas in the present case that were not

capable of resolution under Rule 56.

       As a general matter, claims for adverse possession are not susceptible to summary

judgment due to the fact-intensive nature of these actions. See M & B Realty, Inc. v. Duval, 767

A.2d 60, 65 (R.I. 2001); DelSesto, 754 A.2d at 95. The parties acknowledged that this Court has



                                               - 10 -
not had occasion to uphold a grant of summary judgment on an adverse possession claim

because these cases are fact-driven. At the evidentiary hearing in the case at bar, there was

conflicting evidence with respect to the boundary lines of the contested parcels that differed from

the affidavits upon which the hearing justice relied. The plaintiffs’ affidavits do not clearly

describe the boundary of the back pasture, but declare that the plaintiffs erected and maintained a

fence along the back pasture; however, in their memorandum in support of summary judgment

filed on May 22, 2015, the plaintiffs argued that a stone wall enclosed the back pasture. This is

conflicting evidence. The hearing justice acknowledged these disputed factual issues, noting that

“there is an issue of fact as to what is the actual boundary line * * *.” In an attempt to resolve

these factual issues, the hearing justice ordered an evidentiary hearing regarding the boundary of

the back pasture and engaged in fact-finding, which is not permitted at the summary judgment

stage.6 Accordingly, we conclude that granting summary judgment, in light of obvious disputed

material facts, was erroneous. See Sola, 45 A.3d at 506. Because we are vacating the judgment

of the Superior Court and remanding this case for trial, we not need address the plaintiffs’

remaining appellate arguments.

                                               Conclusion

       For the reasons set forth herein, we vacate the judgment of the Superior Court. The

papers in this case may be remanded to the Superior Court for further proceedings.



       Justice Flaherty did not participate.




6
 We note that Rule 56(c) permits the entry of an interlocutory summary judgment on “the issue
of liability alone although there is a genuine issue as to the amount of damages.” While that
portion of Rule 56 is unrelated to this case, which did not involve a claim for damages, we
observe that the outstanding issue of damages contemplated in the rule must be resolved at trial.
                                                 - 11 -
STATE OF RHODE ISLAND AND                                   PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

Title of Case                        William Coscina et al. v. Craig J. DiPetrillo et al.
                                     No. 2017-127-Appeal.
Case Number
                                     (PC 14-148)
Date Opinion Filed                   June 20, 2018

Justices                             Suttell, C.J., Goldberg, Robinson, and Indeglia, JJ.

Written By                           Associate Justice Maureen McKenna Goldberg

Source of Appeal                     Providence County Superior Court

Judicial Officer From Lower Court    Associate Justice Richard A. Licht
                                     For Plaintiffs:

                                     Nicole M. Labonte, Esq.
                                     Richard E. Palumbo, Jr., Esq.
Attorney(s) on Appeal                For Defendants:

                                     Dennis T. Grieco II, Esq.
                                     Michael J. Lepizzera, Jr., Esq.
                                     Matthew J. Libby, Esq.




SU-CMS-02A (revised June 2016)
