June 21, 2018




                                                                     Supreme Court
                                                                     No. 2016-91-Appeal.
                                                                     (KC 13-1090)




                Peter E. Ucci et al.            :

                         v.                     :

                Town of Coventry.               :




                  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. 2016-91-Appeal.
                                                                       (KC 13-1090)


             Peter E. Ucci et al.               :

                      v.                        :

             Town of Coventry.                  :


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

                                           OPINION

       Justice Robinson, for the Court. This case arises out of a dispute concerning a very

small piece of real property in the Town of Coventry (the Town), which property the Town

contended had been dedicated to the Town (as a public street) in 1946. The Town appeals from

a February 4, 2016 declaratory judgment of the Superior Court entered following the grant of

summary judgment in favor of the plaintiffs, Peter E. Ucci and John S. Ucci. The hearing

justice’s grant of the plaintiffs’ motion for summary judgment was predicated on his

determination that, even if he assumed for the sake of deciding that there had been a dedication,

“[t]here [was still] nothing to support the position [of the Town] that this dedication was

accepted either by public use or by official action.” On appeal, the Town contends that the

hearing justice erred in so ruling. The Town further contends that the hearing justice erred by not

dismissing plaintiffs’ action due to their alleged failure to join indispensable parties.

       This case came before the Supreme Court for oral argument 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 reviewing the record and considering the written and oral submissions




                                                 -1-
of the parties, 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 judgment of the Superior Court.

                                                   I

                                          Facts and Travel

        The small piece of property at issue is roughly sketched on a recorded plat entitled

“PLAN SHOWING LOTS 1, 2, 3 + 4 ON THE UCCI PLAT, OWNED BY ELVIRO and

FILOMENA UCCI, Ray C. Matteson Eng’r, September 1946” (the 1946 Plat); it is a strip of

land thirty-feet wide, one hundred ninety-three feet long on one side, and two hundred ten feet

long on the other side.      The strip is bordered on its southern side by plaintiffs’ property

(designated as Lot 3 on the 1946 Plat), on its eastern side by Benoit Street, on its western side by

a body of water called “Middle Pond,” and on its northern side by a parcel of land designated as

Lot 4. It is undisputed that the 1946 Plat does not, on its face, indicate the purpose of the

disputed strip of land. It is further undisputed that the owner of Lot 4 is not a party to this case.

        On October 9, 2013, plaintiffs filed a complaint against the Town in Superior Court,

seeking a declaratory judgment1 to the effect that they were the owners in fee simple of the

disputed strip of land. (The plaintiffs alleged in their Complaint that the Town had “designated

the area in question as Tax Assessor’s Map 62 Lot 85.4 and [had] taxed the same to the

Plaintiff[s],” which allegation the Town denied in its answer.) On November 24, 2015, the Town

moved for summary judgment, arguing that plaintiffs did not own the disputed strip of land

because, according to the Town, said strip of land was dedicated as a public way because it

1
        The Uniform Declaratory Judgments Act, G.L. 1956 chapter 30 of title 9, “vests the
Superior Court with the power to declare rights, status, and other legal relations whether or not
further relief is or could be claimed.” N & M Properties, LLC v. Town of West Warwick ex rel.
Moore, 964 A.2d 1141, 1144 (R.I. 2009) (internal quotation marks omitted).
                                                 -2-
appears on the 1946 Plat, which had been recorded, and because lots were sold with reference to

that plat.

        The plaintiffs filed an objection to the Town’s motion for summary judgment as well as a

cross-motion for summary judgment. In their memorandum of law, plaintiffs argued that, in

order for private property to become a public street by way of dedication, there must be “a

manifest intent by the land owner to dedicate the land in question called an incipient dedication

or offer to dedicate” as well as “an acceptance by the public either by public use or by official

action to accept the same on behalf of the municipality.” The plaintiffs argued that, even if the

original owners of the 1946 Plat had offered to dedicate the strip of land at issue, the Town had

never accepted that purported offer of dedication, either by public use or by official action and

that, therefore, one of the mandatory requirements for there to be a dedication had not been

satisfied.

        On January 11, 2016, a justice of the Superior Court conducted a hearing on the cross-

motions for summary judgment. At that hearing, the Town expressly conceded on the record

that there had been no acceptance of the purported offer of dedication, either by public use or by

official action. In light of that concession and after observing that “the standard for dedication

requires both dedication and acceptance,” the hearing justice concluded that there was no

genuine issue of material fact with respect to the Town’s not having accepted the purported offer

of dedication. Accordingly, on January 19, 2016, he granted summary judgment in favor of

plaintiffs.   Judgment entered on February 4, 2016. The Town timely appealed from that

judgment.




                                              -3-
                                                    II

                                       Standard of Review

       “This Court will review the grant of a motion for summary judgment de novo, employing

the same standards and rules used by the hearing justice.” Newstone Development, LLC v. East

Pacific, LLC, 140 A.3d 100, 103 (R.I. 2016) (internal quotation marks omitted). We will affirm

a trial court’s decision granting summary judgment “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.” Id.

(internal quotation marks omitted). We have further stated that “the nonmoving party bears 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.” Id. (internal quotation marks omitted). And it is a basic principle that “summary

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 * * *.” Id. (internal quotation marks

omitted).

                                                III

                             The Indispensable Parties Contention

       The Town contends that, because plaintiffs brought this action under the Declaratory

Judgments Act, G.L. 1956 chapter 30 of title 9, their failure to join the abutting landowners as

“indispensable parties” was fatal to their claims. See § 9-30-11. The Town avers that the hearing

justice erred when he did not dismiss the case pursuant to Rule 12(b)(7) of the Superior Court

Rules of Civil Procedure. In view of the Town’s failure to have preserved this issue, we do not

consider it necessary to address this contention.



                                                -4-
       While the Town, in the fifth of the eight affirmative defenses contained in its answer filed

on November 18, 2013, did allude to plaintiffs’ alleged failure “to join an indispensable party,”

at no time thereafter did it seek to flesh out the meaning of that terse sentence, which is worded

in the singular and does not identify in any way who it was that the Town believed should be

joined. In addition, the Town never brought the indispensable party issue to the attention of the

trial court except in a single sentence uttered at the very end of the summary judgment hearing

on January 11, 2016. In our view, the indispensable parties defense has not been adequately

preserved for appellate review.2

                                                IV

                                              Analysis

       This Court recently issued an opinion involving the issue of dedication of property to the

public, wherein we summarized several of the basic principles that are pertinent to the instant

case. Kilmartin v. Barbuto, 158 A.3d 735 (R.I. 2017), as amended (May 3, 2017). In that case,

we recognized that “[i]t is well-settled that the dedication of property to the public is an

exceptional and unusual method by which a landowner passes to another an interest in his [or

her] property.” Barbuto, 158 A.3d at 747 (internal quotation marks omitted). The Barbuto

opinion went on to state in no uncertain terms that there are two requirements for there to be a

valid dedication of property to the public:

               “A valid dedication requires: (1) a manifest intent by the
               landowner to dedicate the land in question, called an incipient
               dedication or offer to dedicate; and (2) an acceptance by the public
               either by public use or by official action to accept the same on



2
        Cf. Direct Action for Rights and Equality v. Gannon, 713 A.2d 218, 222 (R.I. 1998)
(holding that an objection as to the plaintiff’s standing was waived when that issue “was never
raised before the trial justice”).


                                                -5-
               behalf of the municipality.” Id. (emphasis added) (internal
               quotation marks omitted).

        This Court will not recognize a public dedication of private land absent clear and

convincing evidence that the municipality accepted the purported dedication. As we said in

Barbuto, “a proponent must prove the second element of incipient dedication, public acceptance

of the offer of dedication, by clear and convincing evidence.” Id. at 747 n.20 (internal quotation

marks omitted). If the proponent of dedication is unable to establish both incipient dedication

and acceptance, then, as a matter of law, there has been no dedication of private land for public

use. See Donnelly v. Cowsill, 716 A.2d 742, 747 (R.I. 1998) (stating that, in situations such as

the one presented to us in the instant case, the party advocating for the existence of a dedication

bears the burden of “demonstrat[ing] that the land was dedicated by its owner as a street or a

road and that the public has accepted the dedication”) (emphasis added).

       On appeal, the Town argues that the hearing justice erred when he granted summary

judgment in favor of plaintiffs based on his determination that the Town never accepted the offer

of dedication because, in the Town’s view, the hearing justice’s decision “ignor[ed] the

irrevocability” of the dedication.

                                                A

                                 There Has Been No Acceptance

        As we have previously noted, “this Court’s inquiry is not predicated solely upon

ascertaining of an owner’s intent to dedicate—it is [also] necessary to prove acceptance of the

road by the public in order to establish its dedication.” Drescher v. Johannessen, 45 A.3d 1218,

1230-31 (R.I. 2012); see also Newport Realty, Inc. v. Lynch, 878 A.2d 1021, 1034-35 (R.I.

2005). And we have explained that “acceptance by the public * * * is accomplished in one of

two ways: acceptance of the street[] by official action or [by] public user.” Newport Realty, Inc.,

                                               -6-
878 A.2d at 1033. It will also be recalled that “a proponent must prove the second element of

incipient dedication, public acceptance of the offer of dedication, by clear and convincing

evidence.” Barbuto, 158 A.3d at 747 n.20 (internal quotation marks omitted).

       Our judicial task is greatly simplified (as was that of the hearing justice) by the fact that

counsel for the Town, with laudable candor, expressly conceded at the hearing on the cross-

motions for summary judgment that, regardless of whether or not the original owners in 1946

had actually expressed a “manifest intent” to dedicate the disputed strip of land, the offer of

dedication was never accepted by the Town. Id. at 747. A significant colloquy between the

hearing justice and counsel for the Town proceeded as follows:

               “THE COURT: * * * But, the second step for dedication is
               acceptance. You would agree with me?

               “[COUNSEL FOR THE TOWN]: Yes, your Honor. We do agree
               that we have no acceptance by public use. This is -- it’s a very
               small strip of road. * * *

               “THE COURT: Well, there are two methods to demonstrate
               acceptance.

               “[COUNSEL FOR THE TOWN]: Yes.

               “THE COURT: One, as you mentioned, public use, and the other,
               the official action. There is nothing to support the position that
               this dedication was accepted either by public use or by official
               action.

               “[COUNSEL FOR THE TOWN]: Yes. I did search the minutes
               and I didn’t find anything within, I believe, five years is what I
               searched.”

It is clear from this colloquy that the Town explicitly conceded that there had been no

acceptance, by either public use or official action, of the purported offer of dedication of the strip

of land. As such, the hearing justice did not err in concluding that there was no genuine dispute

of material fact as to that issue and in granting summary judgment for the plaintiffs on that basis.

                                                -7-
                                                B

                                 The Irrevocability Argument

       Undaunted by the conceded lack of acceptance, the Town goes on to argue that the

hearing justice “ignor[ed] the irrevocability of [the] dedication” in the instant case despite the

fact that, according to the Town, “the irrevocability of dedication is firmly part of our state’s

jurisprudence;” and, further, as the Town argued below, because the dedication was irrevocable,

the Town “can formally accept the dedication at any time.” To support its position, the Town

relies primarily on a phrase that is included in the following passage from this Court’s opinion in

the case of Day v. Edmondson, 68 R.I. 382, 389, 27 A.2d 904, 907 (1942):

               “When * * * the original owner[] duly recorded the central plat and
               conveyed lot 48 by specific reference to that plat and to that lot as
               abutting on North avenue, which appeared as a platted street
               thereon, she made an offer of dedication. In those circumstances
               such offer or tender of dedication was irrevocable, so far as the
               grantor alone was concerned; and it could not be rescinded or
               revoked by her without the consent of the owners of all lots
               abutting on North avenue.” (Emphasis added.)

We are unpersuaded by the Town’s argument about the irrevocability of a dedication.

       This Court’s decision in Day is readily distinguishable from the instant case. In the Day

case, it was undisputed that “[w]hen Lydia C. Nichols, the original owner, duly recorded the

central plat and conveyed lot 48 by specific reference to that plat and to that lot as abutting on

North avenue, which appeared as a platted street thereon, she made an offer of dedication.” Id.

In light of those undisputed and very clear facts, the Court in Day went on to say: “In those

circumstances such offer or tender of dedication was irrevocable, so far as the grantor alone was

concerned * * *.” Id. (emphasis added). In stark contrast, the instant case is completely lacking

in such absence of dispute. The facts in this case are unlike the situation in Day because the

issue of incipient dedication has from the commencement of this litigation been hotly contested.

                                               -8-
For that reason, we do not believe that the instant case is in any way controlled by the

“irrevocable” language in Day, which the Court in that case tied to the specific factual context

before it.

        We reject the notion that a municipality may hold in abeyance forever its right to accept

an offer of dedication. Rather, we are of the opinion that such an offer must be accepted within a

reasonable period of time. And the plain, blunt fact is that, even assuming arguendo that there

was an incipient dedication, the Town conceded before the hearing justice that it had not

accepted the purported dedication.

        It is noteworthy that other jurisdictions have also concluded that, for a dedication to be

consummated, an offer of dedication must be accepted within a reasonable time. See, e.g., Katz

v. Town of West Hartford, 469 A.2d 410, 413 (Conn. 1983) (“[T]o be effectual an acceptance

must occur within a reasonable period of time after the intent to dedicate the property has been

manifested.”); City of Venice v. Madison County Ferry Co., 75 N.E. 105, 107 (Ill. 1905); Baker

v. Petrin, 95 A.2d 806, 810 (Me. 1953) (“If there was an intention to dedicate it must be accepted

in a reasonable time.”). We are especially impressed by the lapidary language used in an opinion

of the Supreme Court of Michigan issued well over a century ago: “A dedication must be

accepted within a reasonable time or the offer will be considered as withdrawn.” Cass County v.

Banks, 7 N.W. 49, 53 (Mich. 1880) (quoted with approval in 2000 Baum Family Trust v. Babel,

793 N.W.2d 633, 642 (Mich. 2010)).

         In the instant case, the record makes it clear beyond peradventure that the Town did not

accept the purported offer of dedication of the disputed strip of land within a reasonable period

of time because it has conceded that it has never acted to accept the purported offer of

dedication, either by public use or through official action. See Newport Realty, Inc., 878 A.2d at



                                               -9-
1033. We are of the opinion that the passage of sixty-seven years from the alleged offer of

dedication in 1946 until the commencement of the instant litigation in 2013 certainly cannot be

said to constitute a reasonable period of time. See Northern Trust Co. v. Zoning Board of Review

of Town of Westerly, 899 A.2d 517, 520 (R.I. 2006) (mem.) (noting “the egregious nature of the

delay” on the part of the plaintiffs who were challenging the legality of a subdivision).

Accordingly, even assuming arguendo that those who recorded the 1946 Plat intended to offer to

dedicate to public use the small strip of land at issue in this case, we are firmly of the opinion

that there was no completed dedication of that parcel because the Town failed to accept the

purported offer of dedication within a reasonable period of time and thereby forfeited its right to

accept that purported offer.3

       Accordingly, we are of the opinion that the hearing justice did not err in issuing his

declaratory judgment in the plaintiffs’ favor after having granted the plaintiffs’ motion for

summary judgment.

                                                V

                                           Conclusion

       For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.

The record in this case may be remanded to that tribunal.




3
        Our decision in this case constitutes no precedent as to the rights that interested parties
other than the Town may have with respect to the strip of land at issue.
                                              - 10 -
STATE OF RHODE ISLAND AND                                  PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

Title of Case                        Peter F. Ucci et al. v. Town of Coventry.
                                     No. 2016-91-Appeal.
Case Number
                                     (KC 13-1090)
Date Opinion Filed                   June 21, 2018
                                     Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                     Indeglia, JJ.
Written By                           Associate Justice William P. Robinson

Source of Appeal                     Kent County Superior Court

Judicial Officer From Lower Court    Associate Justice Allen P. Rubine
                                     For Plaintiffs:

                                     Thomas J. Cronin, Esq.
                                     Peter D. Nolan, Esq.
Attorney(s) on Appeal
                                     For Defendant:

                                     Nicholas Gorham, Esq.
                                     Sarah F. Malley, Esq.




SU-CMS-02A (revised June 2016)
