June 26, 2020


                                                                   Supreme Court

                                                                   No. 2019-181-Appeal.
                                                                   (PC 15-3174)

                   John Vicente                  :

                        v.                       :

       Pinto’s Auto & Truck Repair, LLC          :
           d/b/a Pinto’s Truck Repair.




                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. 2019-181-Appeal.
                                                                     (PC 15-3174)

                   John Vicente                       :

                         v.                           :

         Pinto’s Auto & Truck Repair, LLC             :
             d/b/a Pinto’s Truck Repair.

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

                                          OPINION

         Chief Justice Suttell, for the Court. The plaintiff, John Vicente (Vicente or plaintiff),

appeals from a judgment of the Superior Court in favor of the defendant, Pinto’s Auto & Truck

Repair, LLC d/b/a Pinto’s Truck Repair (Pinto’s or defendant), in this action alleging that the

defendant’s repairs to the plaintiff’s 2004 Freightliner Columbia (Freightliner) were faulty. This

case came before the Supreme Court by videoconferencing 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 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.

                                                  I

                                  Facts and Procedural History

         According to Vicente, he entered into a verbal agreement with defendant in January 2014

for the repair of his Freightliner. The defendant ordered the parts needed for the repair from Tri

State Truck Center (Tri State), and Vicente paid Tri State directly for the parts. After receiving


                                                -1-
the parts, defendant completed the repair work on the Freightliner, including installing a new

cylinder head. Vicente retrieved the Freightliner from defendant in September 2014, after the

repairs had been completed. The plaintiff contended that, a few months later in December 2014,

he “began to experience severe and substantial mechanical problems with the truck.” The plaintiff

had an engine teardown completed to determine the cause of the mechanical problems, which,

according to plaintiff, showed that “the cylinder head cracked as a result of improper service and

installation of [the] same and which, in turn, caused further and significant major engine damage.”

The plaintiff filed suit against defendant alleging negligence, breach of contract, and unjust

enrichment—all stemming from defendant’s alleged improper repair of the vehicle. The defendant

filed an answer and counterclaim; however, the counterclaim is not relevant to the issues presented

in this appeal.

        Thereafter, defendant moved for a scheduling order to set a timeframe for the parties to

disclose expert witnesses for trial. The plaintiff filed a limited objection to the scheduling order,

but he did not object to producing an expert witness. By agreement of the parties, an order was

entered giving plaintiff until June 14, 2017, to disclose his trial expert.

        The plaintiff filed his expert disclosure designating Chris Pentedemos, the service director

at Tri State, as his expert witness.       According to the disclosure, plaintiff anticipated that

Pentedemos would testify that “the engine damage was most likely the result of improper

counterboring, made during the installation of the cylinder head, which resulted in a dropped liner

and head gasket leak at the number six (6) liner near a coolant port.” However, when defendant

deposed Pentedemos, Pentedemos testified that (1) he was not a mechanic and thus could not

testify regarding repairs, (2) he did not have knowledge of the work defendant completed on the




                                                 -2-
Freightliner, (3) he had not agreed to be an expert in the case, and (4) he had never been asked to

serve as an expert witness in this case.

       As a result of this deposition testimony, defendant moved to strike Pentedemos as an expert

and for summary judgment, contending that, without an expert, plaintiff could not “establish the

standard of care and breach thereof[.]” The plaintiff countered that the anticipated testimony of

defendant’s own expert was “speculative at best” and that expert testimony was not necessary to

prove that defendant breached the agreement it made with plaintiff to repair the Freightliner.

       At a hearing on defendant’s motion for summary judgment on December 12, 2018, plaintiff

stated his position that, notwithstanding the order requiring him to designate an expert witness, an

expert witness was not required. The hearing justice ruled, however, that an expert was required

for plaintiff to prove his case because it was “beyond the knowledge of the average lay person” to

determine whether defendant negligently serviced and installed the truck’s cylinder head, whether

defendant negligently failed to observe the industry standard of due care in its service and repair

of the truck, or whether defendant failed to deliver a properly serviced truck in September 2014.

The plaintiff requested an additional thirty days to designate “a new expert[,]” which the hearing

justice granted. She continued the matter until February 6, 2019, “to permit affidavits to be

obtained or depositions to be taken, consistent with Rule 56(f)”; she stated, “My only requirement

is that everything be filed, any additional memos, responsive pleadings, be filed by the 30th of

January.” The plaintiff filed an untimely amended expert disclosure on January 31, 2019, but he

did not file any supporting affidavits or deposition transcripts in support of his claims.

       At the February 6, 2019 hearing, the hearing justice granted defendant’s motion for

summary judgment because plaintiff did “not produce[] the required expert testimony to

demonstrate that there [was] a genuine issue of material fact in dispute regarding Pinto’s allegedly



                                                -3-
negligent service and installation, negligent failure to observe industry standard, and failure to

deliver a properly serviced truck in September of 2014.” An order granting the summary judgment

motion and judgment in favor of defendant entered on February 13, 2019. The plaintiff then filed

a motion to reconsider, arguing that defendant’s own expert disclosure was deficient, which motion

was denied. The defendant dismissed its counterclaim, and an amended judgment entered in its

favor. The plaintiff timely appealed.

                                                II

                                        Standard of Review

       “It is well settled that this Court reviews the granting of a summary judgment motion on a

de novo basis.” Malinou v. Miriam Hospital, 24 A.3d 497, 508 (R.I. 2011) (quoting Rhode Island

Insurers’ Insolvency Fund v. Leviton Manufacturing Co., 763 A.2d 590, 594 (R.I. 2000)). “We

will affirm a summary judgment if, after reviewing the admissible evidence in the light most

favorable to the nonmoving party, we conclude that no genuine issue of material fact exists and

that the moving party is entitled to judgment as a matter of law.” Id. (brackets omitted) (quoting

Poulin v. Custom Craft, Inc., 996 A.2d 654, 658 (R.I. 2010)). “[S]ummary judgment should enter

against a party who fails to make a showing sufficient to establish the existence of an element

essential to that party’s case.” Holley v. Argonaut Holdings, Inc., 968 A.2d 271, 274 (R.I. 2009)

(alteration omitted) (quoting Lavoie v. North East Knitting, Inc., 918 A.2d 225, 228 (R.I. 2007)).

The “[c]omplete failure of proof concerning an essential element of the nonmoving party’s case

necessarily renders all other facts immaterial.” Id. (quoting Lavoie, 918 A.2d at 228).

       “Further, a party opposing a motion for summary judgment has the burden of proving by

competent evidence the existence of a disputed issue of material fact and cannot rest upon mere

allegations or denials in the pleadings, mere conclusions or mere legal opinions.” Malinou, 24



                                               -4-
A.3d at 508-09 (quoting Poulin, 996 A.2d at 658). Under Rule 56(e) of the Superior Court Rules

of Civil Procedure, competent evidence may be presented in the form of an affidavit “made on

personal knowledge * * * [that] set[s] forth such facts as would be admissible in evidence, and

* * * show[s] affirmatively that the affiant is competent to testify to the matters stated therein.”

                                                 III

                                             Discussion

       Before the Court, plaintiff contends that expert testimony is not always required in a case

such as the one at bar and that there were genuine issues of material fact regarding his negligence

claim.1 He also contends, for the first time, that there are genuine issues of material fact concerning

his breach-of-contract claim, specifically whether the transaction at issue was one for “goods” and

would thus be covered under the Uniform Commercial Code. The defendant counters that “expert

testimony must be presented when the matter is not clearly obvious to a lay person and lies beyond

common knowledge.” The defendant further argues that its own expert disclosure is irrelevant to

its motion for summary judgment and, finally, that arguments plaintiff raises for the first time on

appeal should not be considered.

       In this case, plaintiff failed to provide evidence that defendant’s repairs to plaintiff’s

Freightliner were completed in a faulty manner or otherwise caused additional damage to the

vehicle; thus, he cannot prove essential elements of his claims. Each of plaintiff’s claims required

that he prove a causal link between defendant’s conduct and plaintiff’s damages. “[T]o establish




1
 Brazenly, plaintiff acknowledges in his supplemental statement that he is “guilty” of “[b]luffing
about expert witnesses” and states that such practice is the norm in Rhode Island. Although the
word “bluffing” may be open to some interpretation, we read it to involve, at a minimum, a lack
of candor to the court and opposing counsel. We reject the proposition that it is a standard practice
among Rhode Island attorneys and instruct our trial judges to root out such improper conduct
whenever possible.
                                                 -5-
a negligence claim, a plaintiff must demonstrate a legally cognizable duty owed by a defendant to

a plaintiff, a breach of that duty, proximate causation between the conduct and the resulting injury,

and the actual loss or damage.” Oliver v. Narragansett Bay Insurance Company, 205 A.3d 445,

450 (R.I. 2019) (quoting Kemp v. PJC of Rhode Island, Inc., 184 A.3d 712, 717 (R.I. 2018)). With

respect to his claim for breach of contract, “the plaintiff must prove both the existence and breach

of a contract, and that the defendant’s breach thereof caused the plaintiff’s damages.” Fogarty v.

Palumbo, 163 A.3d 526, 541 (R.I. 2017). Here, plaintiff alleged in his complaint that “[d]efendant

breached the contracted service and repair agreement when it negligently serviced and installed

the truck’s cylinder head and/or, otherwise, failed to properly service and repair [p]laintiff’s

vehicle to applicable mechanical industry standards.” (Emphasis added.) So too is plaintiff’s

claim under the quasi-contractual theory of unjust enrichment constructed upon his allegation that

defendant “failed to deliver a properly serviced, repaired and functioning truck to the [p]laintiff[.]”

          The record shows that plaintiff agreed to the entry of an order requiring him to “disclose

his trial expert(s) and their opinions in the manner and form set forth in Rule 26(b)(4)(A)” by June

14, 2017. 2 At a deposition on May 11, 2018, however, his designated expert witness asserted that



2
    Rule 26(b)(4)(A) of the Superior Court Rules of Civil Procedure states that:

                 “A party may through interrogatories require any other party to
                 identify each person whom the other party expects to call as an
                 expert witness at trial, to state the subject matter on which the expert
                 is expected to testify, and to state the substance of the facts and
                 opinions to which the expert is expected to testify and a summary of
                 the grounds for each opinion. A party may depose any person who
                 has been identified as an expert expected to testify when the expert
                 interrogatory has been responded to by the other party. Unless
                 otherwise ordered by the court, the party seeking to depose the
                 expert shall pay the expert the reasonable fee for the time spent
                 attending the deposition and the reasonable expenses incurred in
                 attending the deposition. In the absence of agreement between the
                 parties as to the timing of disclosures required under this
                                                  -6-
he had neither been asked to serve as an expert nor was he qualified to do so. Thereafter, plaintiff

did not identify a new expert witness until ordered to do so on December 12, 2018. He then filed

an untimely “amended expert disclosure[,]” but did not include any supporting documentation, as

he had been instructed to do by the hearing justice.

       As the hearing justice correctly articulated, “it was the responsibility of Mr. Vicente to

present or point to competent, admissible evidence that demonstrated that there is a genuine issue

of material fact in dispute regarding Pinto’s allegedly negligent service and installation, negligent

failure to observe industry standard, and failure to deliver a properly serviced truck[.]”

       The hearing justice rejected plaintiff’s contention that expert testimony was not required.

We agree with the hearing justice. In “Plaintiff’s Expert Disclosure Information[,]” plaintiff

identified Pentedemos as his expert witness and represented that Pentedemos

               “avers that the subject vehicle’s cracked cylinder head was most
               likely caused as a result of an improper counterbore during the
               installation of the cylinder head. The engine teardown confirmed
               compression in the cooling system and further revealed a heat gasket
               leak at the number six (6) liner near a coolant port.”

It is our considered opinion that the hearing justice did not abuse her discretion in holding that

“[d]etermining whether the [d]efendant had negligently serviced and installed the truck cylinder

head, or whether the [d]efendant negligently failed to observe the industry standard of care in its

service and repair of the [p]laintiff’s truck, or whether the [d]efendant failed to deliver a properly

serviced truck in September of 2014[,] were all matters that were beyond the knowledge of the

average lay person.”




               subdivision, any party may apply to the court for an order
               establishing a schedule of such interrogatories, responses, and
               depositions. Obligation to respond to interrogatories shall be stayed
               until the ruling on the application.”
                                                -7-
        As we stated supra, the “complete failure of proof concerning an essential element of the

nonmoving party’s case necessarily renders all other facts immaterial.” Holley, 968 A.2d at 274

(quoting Lavoie, 918 A.2d at 228). Thus, we need not address plaintiff’s contentions of disputed

material facts. Furthermore, we decline to address plaintiff’s argument that this transaction should

be treated as one for goods and thus governed by the Uniform Commercial Code, because plaintiff

has raised this argument for the first time on appeal before this Court. It is well established in our

jurisprudence that “an issue that has not been raised and articulated previously at trial is not

properly preserved for appellate review.” Cote v. Aiello, 148 A.3d 537, 549 (R.I. 2016) (quoting

State v. Gomez, 848 A.2d 221, 237 (R.I. 2004)).

        The plaintiff has produced no admissible evidence that Pinto’s negligently repaired the

Freightliner, breached any contract it had with the plaintiff by delivering an unrepaired vehicle, or,

alternatively, was unjustly enriched by accepting the plaintiff’s money without completing proper

repairs. When the defendant filed its motion for summary judgment, it was the plaintiff’s burden

to produce evidence to show a genuine issue of material fact. Having failed to do so, the hearing

justice properly granted summary judgment in the defendant’s favor.

                                                 IV

                                            Conclusion

        The judgment of the Superior Court is affirmed, and the papers in this case may be returned

to that tribunal.




                                                -8-
STATE OF RHODE ISLAND AND                                  PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

                                     John Vicente v. Pinto’s Auto & Truck Repair, LLC v.
Title of Case
                                     d/b/a Pinto’s Truck Repair.
                                     No. 2019-181-Appeal.
Case Number
                                     (PC 15-3174)
                                     June 26, 2020
Date Opinion Filed
                                     Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                     Indeglia, JJ.
Written By                           Chief Justice Paul A. Suttell
                                     Providence County Superior Court
Source of Appeal
                                     Associate Justice Melissa A. Long
Judicial Officer From Lower Court
                                     For Plaintiff:

                                     Christopher M. Lefebvre, Esq.
Attorney(s) on Appeal                For Defendant:

                                     Stanley F. Pupecki, Esq.
                                     Mark P. Dolan, Esq.




SU-CMS-02A (revised June 2016)
