                                                                Supreme Court

                                                                No. 2013-22-Appeal.
                                                                (KD 09-844)




Joseph P. Notarianni Revocable Trust of    :
            January, 2007

                   v.                      :

   Joseph Paul Notarianni, Jr., 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. 2013-22-Appeal.
                                                                      (KD 09-844)




    Joseph P. Notarianni Revocable Trust of     :
                January, 2007

                       v.                       :

       Joseph Paul Notarianni, Jr., et al.      :




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


                                             OPINION

         Justice Robinson, for the Court. The plaintiff, the Joseph P. Notarianni Revocable

Trust of January, 2007,1 appeals from a December 6, 2012 Kent County Superior Court

judgment2 granting the motion to dismiss its trespass and ejectment action. The motion to

dismiss was filed by Joseph Paul Notarianni, Jr., Robert Notarianni, Christine Fink, Rebecca

Balasco, and Thomas P. Notarianni (collectively the defendants).3 This case came before the



1
       Stephen P. Notarianni is trustee of the Joseph P. Notarianni Revocable Trust of January,
2007. He is the son of Joseph P. Notarianni and a sibling of some (or possibly all) of defendants.
See Part I, footnote 5, infra.
2
         See footnote 7, infra.
3
        The Court notes that the original plaintiff in this case was the guardianship estate of
Joseph P. Notarianni. When Joseph P. Notarianni passed away, the trust was substituted as
plaintiff. Although the order granting the motion to substitute which is contained in the record
was not signed by a judge, the District Court docket indicates that the motion was granted; and
the parties do not dispute that the motion to substitute was granted.
                                                 -1-
Supreme Court pursuant to an order directing the parties to appear and show cause why the

issues raised in this appeal should not be summarily decided. After a close review of the record

and careful consideration of the parties’ arguments (both written and oral), 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 vacate the order of the Superior Court.

                                                    I

                                           Facts and Travel

        This dispute concerns title to ninety-four acres of land located at 47 Cucumber Hill Road

in Foster, Rhode Island, which was transferred by quitclaim deed to the plaintiff trust by Joseph

P. Notarianni,4 the patriarch of the family, before his death on February 26, 2009. This case

began with a complaint for eviction for unlawfully holding over after the termination of tenancy,

pursuant to G.L. 1956 § 34-18-38(a), filed by the plaintiff trust in District Court against

defendants. (With the possible exception of Christine Fink, defendants are siblings and are

children of Joseph Sr.)5

        The instrument that created the plaintiff trust required the trustee, upon the death of the

settlor, to distribute a fifteen-acre tract of land, which included Joseph Sr.’s personal residence at

47 Cucumber Hill Road, to Stephen P. Notarianni (who is also the trustee) “absolutely and free

of any trust.” The trust instrument further required that the trustee “divide the remaining balance

of the principal in the trust estate,” along with any accumulated income, to the remaining living

4
        For the sake of clarity, and intending no disrespect, we shall refer to Joseph P. Notarianni
(the patriarch of the family) as “Joseph Sr.”
5
        In the trust instrument which established the plaintiff trust, Christine Fink is not listed as
one of Joseph Sr.’s children. It is not clear in the record before this Court how Ms. Fink is
related (if at all) to the other parties in this case; but clarification of that point is not essential to
the resolution of this case.


                                                  -2-
children “absolutely and free of any trust.” After a hearing on the complaint for eviction in the

District Court, a judgment for the plaintiff trust was entered on June 11, 2009. The defendants

timely appealed to the Superior Court on June 15, 2009, and they filed a motion to dismiss the

case. The defendants argued that the plaintiff trust was not a landlord and that defendants were

not tenants; they contended that they were, instead, tenants in common with Stephen P.

Notarianni (the trustee)—and that, therefore, an action for eviction could not lie.6 The Superior

Court subsequently issued an order granting defendants’ motion to dismiss because, in the view

of the motion justice, the Superior Court lacked subject matter jurisdiction over the case and the

plaintiff trust lacked standing.7 The plaintiff trust filed a notice of appeal to this Court on the

same day that the order was entered—viz., October 27, 2009.

                                                 II

                                              Analysis

       Despite the fact that this rather internecine litigation has already occupied the attention of

four courts in this state,8 we are at this time concerned only with the limited question of whether



6
        In addition, defendants contest the validity of the trust; they claim that the ninety-four
acres located at 47 Cucumber Hill Road were part of Joseph Sr.’s estate and should be
distributed in accordance with the terms governing distribution of Joseph Sr.’s estate.
        In its statement filed pursuant to Article I, Rule 12(A) of the Supreme Court Rules of
Appellate Procedure, the plaintiff trust asserts that at least some of defendants were residing in
the structure at 47 Cucumber Hill Road and that it had to remove the “tenants” in order to
prepare the property for sale.
7
        The terms of the order issued by the Superior Court on October 27, 2009 were ultimately
included in the document entitled “FINAL JUDGMENT,” which was signed by the motion
justice on December 6, 2012. (Emphasis in original.)
8
        In addition to the District Court, the Superior Court, and this Court, defendants also
indicate, in their Rule 12(A) statement, that there is an action pending in Foster Probate Court
with respect to Joseph Sr.’s estate. We would note, as well, that this is not the first time that this
family has been before this Court. See Notarianni v. Notarianni, 984 A.2d 56 (R.I. 2009)
(mem.).
                                                -3-
the motion justice erred when he granted defendants’ motion to dismiss the case after he

concluded that the plaintiff trust lacked standing and that the Superior Court lacked subject

matter jurisdiction over the case.

       We begin our review of that two-pronged question by addressing the issue of subject

matter jurisdiction, and we first note that this Court conducts a de novo review when it is

confronted with an issue of subject matter jurisdiction. Long v. Dell, Inc., 984 A.2d 1074, 1078

(R.I. 2009); see also Narragansett Electric Co. v. Saccoccio, 43 A.3d 40, 44 (R.I. 2012) (defining

“[t]he term subject matter jurisdiction, when properly used,” as referring “only to the court’s

power to hear and decide a case and not to whether a court having the power to adjudicate should

exercise that power”) (internal quotation marks omitted).

       General Laws 1956 § 9-12-10.1 clearly grants the Superior Court subject matter

jurisdiction over the appeal of a landlord-tenant action filed pursuant to § 34-18-38(a), as is true

of the instant case. The language of § 9-12-10.1 could hardly be clearer:

                        “In any civil action pursuant to chapter 18 of title 34, in the
               district court or other appropriate court, any party may cause the
               case to be removed for trial on all questions of law and fact to the
               superior court.”

The defendants concede that “the Superior Court indeed does have jurisdiction over trespass and

ejectment matters * * * .” Accordingly, it is our judgment that the motion justice erred when he

determined that the Superior Court lacked subject matter jurisdiction over this action.

       Having concluded, albeit erroneously, that subject matter jurisdiction was lacking, the

trial justice proceeded to hold that the plaintiff trust lacked standing.9 However, the motion

justice held no hearing and made no findings of fact before so holding. Consequently, this Court

9
       Even though the motion justice determined that he lacked subject matter jurisdiction, he
chose to respond to questions put to him by counsel on the issue of standing.


                                                -4-
is not in a position to review the motion justice’s determination on standing. See, e.g., State v.

Lussier, 686 A.2d 79, 81 (R.I. 1996) (stating that “the trial justice * * * made no specific

findings concerning ineffective assistance of defense counsel” and then concluding that,

“therefore, [we could] not entertain the defendant’s incompetency-of-counsel claim”); Bagaglia

v. Bud Industries, 438 A.2d 667, 670 (R.I. 1981) (holding in a workers’ compensation case that,

“[s]ince the appellate commission made no findings of fact                  in support of its

conclusion * * * [this Court was] unable to exercise properly our appellate review” and, then

concluding that, therefore, “we [had to] remand th[e] case to the appellate commission with

directions for it to enter a new decree containing sufficient findings of fact”). On remand, the

Superior Court should conduct an evidentiary hearing and make findings of fact with respect to

the issue of standing. 10

                                               III

                                          Conclusion

        In conclusion, we hold that the motion justice erred in determining that the Superior

Court does not have subject matter jurisdiction over this trespass and ejectment action.

Accordingly, we vacate the judgment of the Superior Court. We remand the record to that

tribunal with instructions that it conduct an evidentiary hearing with respect to the issue of

standing.




10
       In our view, the issues implicated by this case would more properly be decided in the
context of a declaratory judgment action.
                                              -5-
                           RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:       Joseph P. Notarianni Revocable Trust of January, 2007 v. Joseph
                     Paul Notarianni, Jr., et al.

CASE NO:             No. 2013-22-Appeal.
                     (KD 09-844)

COURT:               Supreme Court

DATE OPINION FILED: May 28, 2014

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

WRITTEN BY:          Associate Justice William P. Robinson III

SOURCE OF APPEAL:    Kent County Superior Court

JUDGE FROM LOWER COURT:

                     Associate Justice Daniel A. Procaccini

ATTORNEYS ON APPEAL:

                     For Plaintiff: Steven J. Hart, Esq.

                     For Defendants: Jay R. Katznelson, Esq.
