March 22, 2019


                                                                   Supreme Court

                                                                   No. 2018-11-Appeal.
                                                                   (PC 16-3059)


                  John Broccoli                 :

                       v.                       :

                 Walter Manning.                :




                  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 (401) 222-
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                                                                  Supreme Court

                                                                  No. 2018-11-Appeal.
                                                                  (PC 16-3059)


               John Broccoli                  :

                     v.                       :

             Walter Manning.                  :


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


                                         OPINION

       Justice Goldberg, for the Court. This case came before the Supreme Court for oral

argument on December 5, 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 plaintiff, John

Broccoli (plaintiff or Broccoli), a pro se litigant, appeals from the Superior Court’s entry of

summary judgment in favor of the defendant, attorney Walter Manning (Manning or defendant).

After considering the parties’ written and oral submissions and after reviewing the record, we

conclude that cause has not been shown and proceed to decide the appeal at this time. For the

reasons set forth herein, we affirm the judgment of the Superior Court.

                                       Facts and Travel

       On March 12, 2013, a mortgage broker named Richard Dion (Dion) contacted defendant

and asked if he would assist plaintiff in obtaining a modification on his mortgage payments and

try to stop a foreclosure sale that was scheduled to occur on March 15, 2013, for property located

at 1483 Mineral Spring Avenue, North Providence, Rhode Island (the property). The defendant

informed Dion that it was “highly unlikely” anything could be done “at such a late stage in the



                                              -1-
foreclosure proceedings[,]” but he agreed to contact the mortgage company on plaintiff’s behalf.

That same day, at defendant’s request, Dion obtained a signed “Authorization Form” executed

by plaintiff at Manning Law Offices’ satellite office. The form authorized Manning Law Offices

to act as plaintiff’s designated agent to discuss options with Bay View Loan Servicing (Bay

View); according to plaintiff, “[t]he objective was to secure a more practical loan

arrangement[.]” Specifically, the authorization form allowed Bay View “to work out the terms

of [a] payment agreement with [defendant] and to cause to deliver requested documents to

[defendant] that concerns a request for payment assistance.” In addition, the authorization form

stipulated that Bay View was to “immediately cease direct contact with [plaintiff] regarding [his]

account” and required that all contact related to plaintiff’s account be referred to defendant.

Armed with the authorization, defendant contacted Bay View, only to discover that plaintiff was

not the owner of the property. Bay View declined to speak to defendant in any detail because he

did not have authorization from the true property owner and borrower, which was an entity

named Brocco Development Corporation (Brocco).1 Three days later, on March 15, 2013, the

property was sold at a public foreclosure sale.

        More than three years later, on July 1, 2016, plaintiff filed a complaint, pro se, in the

Superior Court against defendant alleging breach of contract and fraud, and sought over




1
  The facts in the complaint allege, albeit vaguely, that Brocco Development Corporation owned
the property located at 1483 Mineral Spring Avenue and leased all, or a portion of, the property
to Spardello’s Clothiers, a now-defunct men’s clothing store, with which plaintiff was affiliated
in some capacity. In addition, although not alleged in the complaint or provided for in the
discovery responses filed with the court, at a hearing on the parties’ cross-motions for summary
judgment, discussed in more detail infra, plaintiff’s attorney clarified that plaintiff was the sole
shareholder of Brocco Development Corporation.


                                                  -2-
$875,000 in damages.2 The defendant, also acting pro se, filed an answer in which he denied the

allegations and asserted several affirmative defenses, including lack of standing, insufficient

service of process, and failure to state a claim upon which relief could be granted. On March 24,

2017, plaintiff moved for summary judgment and argued, in essence, that defendant breached his

fiduciary duty owed to plaintiff. The defendant filed an objection and a cross-motion for

summary judgment, in which he proffered four arguments in opposition to summary judgment

and in support of his cross-motion. Specifically, defendant argued that: (1) any claim against

defendant would arise from a claim for legal malpractice, which was barred by the three-year

statute of limitations for such claims; (2) plaintiff lacked standing to assert a cause of action

against defendant because plaintiff was not the owner or the mortgagor of the property; (3) there

was no attorney-client relationship between plaintiff and defendant; and (4) plaintiff could not

establish any damages.

       A hearing on the parties’ cross-motions for summary judgment was held on October 11,

2017.3 The parties agreed to pass plaintiff’s motion and address only defendant’s motion for

summary judgment.4 After hearing argument from the parties, the hearing justice granted



2
 The plaintiff also filed a complaint against defendant with this Court’s Disciplinary Counsel;
however, on April 15, 2016, that complaint was dismissed.
3
  Although plaintiff filed his complaint pro se, he was represented by counsel at the hearing on
the parties’ cross-motions for summary judgment.
4
  We pause to note that plaintiff seems to have filed two motions for summary judgment—the
first motion was filed on July 1, 2016, and was attached to the complaint; the second motion for
summary judgment was filed on March 24, 2017. The first motion for summary judgment that
was attached to the complaint was the operative pleading at the hearing, with no mention of the
second. Counsel for plaintiff stipulated that plaintiff had “filed a motion for summary judgment
along with his * * * initial pleading” and that it was “too early for him to do that” because the
pleadings “had not been all filed at that time.” The plaintiff’s counsel proceeded to claim that he
was not prepared to argue plaintiff’s motion for summary judgment and the motion was passed.


                                               -3-
summary judgment in favor of defendant.5 In doing so, the hearing justice stated that it was

difficult “to suggest this was anything other than a relationship against a professional defendant”

in light of the fact that “the complaint itself states that the defendant committed fraud as an

attorney and utilized his skill to the detriment of the plaintiff.”     The hearing justice thus

concluded that the complaint was “subject to the three-year statute of limitations for legal

malpractice contained within * * * [§] 9-1-14.3.” The hearing justice next considered when that

statutory period began to run and concluded, based upon plaintiff’s answers to defendant’s

requests for admission, that plaintiff “knew the moment the foreclosure took place about the

alleged negligence[,]” and therefore plaintiff “did not bring this cause of action in a timely

fashion[.]” The plaintiff appealed.

                                      Standard of Review

       It is well settled that this Court reviews a hearing justice’s grant of summary judgment

de novo. See Credit Union Central Falls v. Groff, 966 A.2d 1262, 1267 (R.I. 2009). “We will

affirm such a decision only 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.” Prout v. City of Providence, 996 A.2d

1139, 1141 (R.I. 2010) (internal quotation marks omitted). Conversely, “if the record evinces a



5
  The plaintiff’s complaint also alleged that defendant, or defendant’s law firm, participated in a
“scam” by allegedly purchasing the property at the foreclosure sale. When questioned by the
hearing justice about this allegation, defendant stated, several times, that he “Never, ever, ever
owned the property.” However, after further prompting, defendant eventually conceded that he
was “in the business of lending money on real estate ventures” and “lent money on this project,
but [he] never owned the property.” Instead, defendant stated that he, along with other
individuals, “liened the property for a loan [he] gave someone[.]” The hearing justice expressed
her concern about this transaction and stated, “Something doesn’t sit right with me about the fact
that you would finance a project when you had previously been asked to assist with preventing
the foreclosure.” Nevertheless, she proceeded to rule in favor of defendant. We share the hearing
justice’s concerns.
                                               -4-
genuine issue of material fact, summary judgment is improper and we will accordingly reverse.”

Canavan v. Lovett, Schefrin and Harnett, 862 A.2d 778, 783 (R.I. 2004).

                                            Discussion

        We note at the outset that plaintiff has not provided this Court with any meaningful

discussion of the issues on appeal as required by Article I, Rule 16(a) of the Supreme Court

Rules of Appellate Procedure, which provides: “Errors not claimed, questions not raised and

points not made ordinarily will be treated as waived and not be considered by the Court.” In

particular, plaintiff has failed to articulate how the hearing justice erred in granting defendant’s

motion for summary judgment. This Court generally deems an issue waived “when a party

simply states an issue for appellate review, without a meaningful discussion thereof.” A. Salvati

Masonry Inc. v. Andreozzi, 151 A.3d 745, 750 (R.I. 2017) (brackets and deletion omitted)

(quoting In re Jake G., 126 A.3d 450, 458 (R.I. 2015)). “A mere passing reference to an

argument, * * * without meaningful elaboration, will not suffice to merit appellate review.” State

v. Day, 925 A.2d 962, 974 n.19 (R.I. 2007); see Wilkinson v. State Crime Laboratory

Commission, 788 A.2d 1129, 1131 n.1 (R.I. 2002) (“Simply stating an issue for appellate review,

without a meaningful discussion thereof or legal briefing of the issues, does not assist the Court

in focusing on the legal questions raised, and therefore constitutes a waiver of that issue.”).

Consequently, plaintiff’s arguments are waived under this Court’s raise-or-waive rule for failure

to meaningfully develop or discuss what error was committed on the part of the hearing justice in

this case.

        Nonetheless, our review of the record convinces us that the hearing justice did not err in

granting defendant’s motion for summary judgment. “General Laws 1956 § 9-1-14.3 sets forth a




                                               -5-
three-year statute of limitations for legal malpractice claims.” Behroozi v. Kirshenbaum, 128

A.3d 869, 872 (R.I. 2016). Section 9-1-14.3 provides, in relevant part, that:

               “Notwithstanding the provisions of §§ 9-1-13 and 9-1-14, an action
               for legal malpractice shall be commenced within three (3) years of
               the occurrence of the incident which gave rise to the action;
               provided, however, that:

               “* * *

               “(2) In respect to those injuries due to acts of legal malpractice
               which could not in the exercise of reasonable diligence be
               discoverable at the time of the occurrence of the incident which
               gave rise to the action, suit shall be commenced within three (3)
               years of the time that the act or acts of legal malpractice should, in
               the exercise of reasonable diligence, have been discovered.”

Although plaintiff contends that a ten-year statute of limitations should apply to this “breach of

contract with fraud” claim, his contention is belied by the pleadings. The plaintiff’s complaint

alleges that defendant, as “an attorney, utilized his skills at eviction, while aware of his

responsibility to labor on the behalf of [p]laintiff,” and had “breach[ed] his * * * responsibilities,

as contractor, for [p]laintiff, officer of the Court, State of Rhode Island, and knowingly

disregarding” Rhode Island statutes. We are hard-pressed to conclude that a “breach of contract

with fraud” claim that centers on a defendant-attorney’s attempt to obtain a mortgage-

modification agreement on behalf of a plaintiff is anything but a legal malpractice claim that

arose from a professional relationship, subject to the three-year statute of limitations set forth in

§ 9-1-14.3.

       Moreover, plaintiff’s contention that his “breach of contract with fraud” claim should be

subject to a ten-year statute of limitations is meritless as the record is devoid of any evidence that

a contract, express or implied, existed between the parties. This Court has previously declared

that a valid contract requires “competent parties, subject matter, a legal consideration, mutuality

of agreement, and mutuality of obligation.” DeAngelis v. DeAngelis, 923 A.2d 1274, 1279 (R.I.
                                                -6-
2007) (quoting Rhode Island Five v. Medical Associates of Bristol County, Inc., 668 A.2d 1250,

1253 (R.I. 1996)). Assuming, arguendo, that plaintiff has established that there are competent

parties, as set forth on the “Authorization Form,” plaintiff nevertheless has failed to establish the

remaining elements—namely, consideration, subject matter, and mutuality of agreement and

obligation. Accordingly, plaintiff has failed to demonstrate that his claim against defendant

should be subject to a ten-year statute of limitations for an action in contract or that the hearing

justice erred in applying a three-year statute of limitations in this case.

        Finally, it is our opinion that the hearing justice was correct in concluding that the

statutory period for the plaintiff’s claim against the defendant began to run in March 2013. The

discovery-rule exception, codified in § 9-1-14.3(2), “requires only that the plaintiff be aware of

facts that would place a reasonable person on notice that a potential claim exists.” Sharkey v.

Prescott, 19 A.3d 62, 66 (R.I. 2011) (quoting Canavan, 862 A.2d at 784). “The discovery rule

does not require perfect crystallization of the nature and extent of the injury suffered or a clear-

cut anchoring to the allegedly negligent conduct of a defendant.” Fogarty v. Palumbo, 163 A.3d

526, 534 (R.I. 2017) (quoting Bustamante v. Oshiro, 64 A.3d 1200, 1207 (R.I. 2013)). Rather, a

legal-malpractice plaintiff is afforded three years to commence suit from “the time that the act or

acts of the malpractice should, in the exercise of reasonable diligence, have been discovered.”

Section 9-1-14.1(2). In the case at bar, the plaintiff concedes that he knew the moment the

foreclosure took place that the defendant breached any alleged duty owed to the plaintiff.

Specifically, the defendant’s requests for admission sought an admission of the truth of the

following factual statement: “It is the allegation of the Plaintiff that on the foreclosure date

Plaintiff knew Defendant committed negligence.” The plaintiff admitted the following in his

answer to that request: “Absolutely I assert with each question you ask.” We therefore conclude



                                                 -7-
that the hearing justice correctly granted the defendant’s motion for summary judgment after

concluding that the plaintiff’s complaint, filed on July 1, 2016, was barred by the statute of

limitations, which ran on March 15, 2016.

                                               Conclusion

       For the foregoing reasons, the judgment of the Superior Court is affirmed and the record

may be remanded thereto.


       Justice Flaherty did not participate.




                                                  -8-
STATE OF RHODE ISLAND AND                                    PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

Title of Case                        John Broccoli v. Walter Manning.
                                     No. 2018-11-Appeal.
Case Number
                                     (PC 16-3059)
Date Opinion Filed                   March 22, 2019

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 Maureen B. Keough
                                     For Plaintiff:

                                     John Broccoli, Pro Se
Attorney(s) on Appeal
                                     For Defendant:

                                     Walter J. Manning, III, Pro Se




SU-CMS-02A (revised June 2016)
