                                                                    Supreme Court

                                                                    No. 2012-132-Appeal.
                                                                    (PC09-4532)

              Luz N. Rivera                   :
                                                                       
                    v.                        :
                                                                       
         Robert Viola alias et al.            :


                                        ORDER


      The plaintiff, Luz N. Rivera, appeals from a Superior Court summary judgment

and entry of final judgment in favor of Sally A. Bailey, one of the two named defendants

in the case. The plaintiff was involved in an automobile accident with Bailey’s vehicle,

which was being driven at the time by the defendant Robert Viola, a valet driver. Before

this Court, the plaintiff contends that the bailee/bailor relationship between the

defendants should not preclude the plaintiff’s potential recovery against both the

defendants.   However, although she filed a blanket objection in Superior Court in

response to Bailey’s motion for summary judgment, the plaintiff did not appear to press

her objection at the hearing on the matter.

      This Court previously has recognized that “[i]f a party fails to assert a legal reason

why summary judgment should not be granted, that ground is waived and cannot be

considered or raised on appeal.” Dallman v. Isaacs, 911 A.2d 700, 704 (R.I. 2006)

(quoting Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667, 678 (1st Cir. 1995)). In

Dallman, this Court stated that “it was incumbent upon [the] plaintiffs to inform the

motion justice of the various legal arguments they now advance before this Court to

preserve them for our review.” Id. at 705. The plaintiff’s “failure to do so forces [the
Court] to conclude that [the plaintiff has] waived [her] claims.” Id. (citing Thomas v.

Ross, 477 A.2d 950, 953 (R.I. 1984) (“holding that the party who fails to argue certain

issues at trial may not assert those claims for relief at the appellate level”)). Further,

“[t]he party appealing an award of summary judgment cannot ‘advance new theories or

raise new issues in order to secure a reversal of the lower court’s determination.’” Id. at

704-05 (quoting 10A Charles Alan Wright et al., Federal Practice and Procedure Civil: §

2716 at 282, 284, 286 (1998) and citing and quoting James W. Moore, Moore’s Federal

Practice § 56.41[3][c] at 56-303 (3d ed. 2006) (“As a general rule, arguments and

evidence not presented in the [trial] court in connection with a summary judgment motion

are waived on appeal and the appellate court will be unable to consider these materials in

its review of the [trial] court’s decision.”)).

       It is significant that, before this Court, the plaintiff does not explain her failure to

appear at the scheduled hearing on Bailey’s motion for summary judgment. By failing to

appear at the hearing and inform the motion justice of the legal bases for her objection to

the motion, the plaintiff has waived any arguments that she may present now to this Court.

        The plaintiff’s appeal is denied and dismissed and the judgment appealed from is

affirmed.



        Entered as an Order of this Court this 15th day of November 2012.


                                                  By Order,


                                                  ___________/s/____________________
                                                  Clerk
                          RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                               Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:      Luz N. Rivera v. Robert Viola alias et al.

CASE NO:            No. 2012-132-Appeal.
                    (PC09-4532)

COURT:              Supreme Court

DATE ORDER FILED:   November 15, 2012

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

WRITTEN BY:         N/A – Court Order

SOURCE OF APPEAL:   Providence County Superior Court

JUDGE FROM LOWER COURT:

                    Presiding Justice Alice B. Gibney

ATTORNEYS ON APPEAL:

                    For Plaintiff: Richard P. Brederson, Esq.

                    For Defendant Robert Viola: David O. deAbreu, Esq.

                    For Defendant Sally A. Bailey: Mark H. Burnham, Esq.
                                                   Thomas A. Madden, Esq.
