                                                        Supreme Court

                                                        No. 2011-379-Appeal.
                                                        (KC 10-368)


  Kimberly Lomastro                :

           v.                      :

Margaret Iacovelli 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 Tel. 222-3258 of any typographical or other
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     published.
                                                               Supreme Court

                                                               No. 2011-379-Appeal.
                                                               (KC 10-368)


           Kimberly Lomastro                 :

                    v.                       :

         Margaret Iacovelli et al.           :



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


                                         OPINION

       Justice Flaherty, for the Court. The plaintiff, Kimberly Lomastro, appeals from a

decision of the Superior Court that granted the defendants’ motion for summary judgment. She

argues that the trial justice erred when he denied her motion to amend her complaint. This case

came before the Supreme Court for oral argument on October 31, 2012, pursuant to an order

directing the parties to appear and show cause why the issues raised in this appeal should not

summarily be decided. After hearing the arguments and examining the memoranda filed by the

parties, we are of the opinion that cause has not been shown, and we proceed to decide the appeal

at this time without further briefing or argument. For the reasons set forth in this opinion, we

vacate the judgment of the Superior Court.

                                                  I

                                       Facts and Travel

       Lomastro was employed as a bus driver for Durham School Services (Durham), a bus

company that contracted to provide transportation for the Town of Johnston School Department

(school department).     On January 18, 2008, while she was driving a bus that was full of

                                                 -1-
elementary-school children, plaintiff reported over the radio that someone had shot at her bus

and that panic had spread among the children. After an investigation was completed, the school

department found itself displeased with the manner in which plaintiff had handled the situation.

The school department concluded that plaintiff had no basis for broadcasting that the bus had

been struck by gunfire, that her actions caused a panic on her bus and to occupants of other

busses listening in on the radio, that she had demonstrated that she was unable to keep control of

the children, and that she had failed to maintain radio contact after making her initial report.

       Based on these findings and citing a specific provision in its contract with Durham, 1 the

school department sent a letter requesting that plaintiff no longer be assigned to transport

Johnston students.2 Eventually, plaintiff left her employment with Durham 3 and, as a result,

plaintiff filed suit for wrongful termination against Margaret Iacovelli, the then-superintendent of

Johnston public schools, and David Cournoyer, the director of facilities and transportation for

Johnston public schools (collectively defendants).        The complaint alleged that defendants

wrongfully had requested that plaintiff be terminated from her employment at Durham and it

asked that judgment be entered against them.

       In due course, and after some discovery had been conducted, defendants filed a motion

for summary judgment in the Superior Court, and a hearing was held on August 22, 2011. At the

hearing, counsel conceded that plaintiff had been an employee of Durham, and not the Town of

Johnston. He argued, however, that Johnston was plaintiff’s “de facto employer” and that

1
  This section of the contract, entitled “Driver Withdrawal,” says: “It is understood that the
Superintendent of Schools or designee reserves the right to withdraw, with or without cause, at
any time, their approval of any driver. The contractor will immediately upon receipt thereof
replace the driver.”
2
  Durham also issued plaintiff a warning for carelessness in communicating over the radio that
her bus was shot at and for not using her cell phone to contact Durham.
3
  The record is unclear about whether plaintiff left her employment with Durham voluntarily or
not and this is a disputed issue among the parties.
                                                 -2-
summary judgment should not be granted in defendants’ favor. The trial justice did not agree; he

ruled that because there was no employer-employee relationship between plaintiff and the Town

of Johnston, no viable claim existed for wrongful termination against the municipality, and he

granted the town’s motion for summary judgment.

       During the course of the hearing, however, the trial justice suggested that a claim of

tortious interference with a contractual relationship may have been a more appropriate cause of

action than the wrongful-termination claim that plaintiff actually filed. Heeding the trial justice’s

remarks, counsel made an oral motion for leave to amend the complaint to include a claim of

tortious interference, to which defendants objected. The trial justice sustained the objection,

however, concluding that it would be unfair to defendants if he allowed plaintiff to amend her

complaint and mold a claim around his comments. The plaintiff timely appealed. Before this

Court, plaintiff argues that the hearing justice wrongfully granted summary judgment against her

and that he further erred when he denied her motion to amend her complaint.

                                                 II

                                       Standard of Review

       “This Court reviews a trial justice’s decision to grant summary judgment on a de novo

basis.” 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.’” Id. (quoting Lucier v. Impact Recreation, Ltd.,

864 A.2d 635, 638 (R.I. 2005). Moreover, the party opposing “a motion for summary judgment

carries the burden of proving by competent evidence the existence of a disputed material issue of




                                                -3-
fact and cannot rest on allegations or denials in the pleadings or on conclusions or legal

opinions.” United Lending Corp. v. City of Providence, 827 A.2d 626, 631 (R.I. 2003) (quoting

Accent Store Design, Inc. v. Marathon House, Inc., 674 A.2d 1223, 1225 (R.I. 1996)).

       Additionally, “the decision to grant or to deny a motion to amend a complaint is confided

to the sound discretion of the [trial] justice.” Harodite Industries, Inc. v. Warren Electric Corp.,

24 A.3d 514, 529 (R.I. 2011). “Accordingly, we afford ‘great deference to the trial justice’s

ruling on a motion to amend,’” and we “will not disturb [that] ruling unless the [trial] justice

committed an abuse of discretion.” Id. (quoting Catucci v. Pacheco, 866 A.2d 509, 513 (R.I.

2005) and Barrette v. Yakavonis, 966 A.2d 1231, 1236 (R.I. 2009)).

                                                III

                                            Discussion

       The plaintiff argues that the trial justice erred because he declined to grant her leave to

amend her complaint. Rule 15(a) of the Superior Court Rules of Civil Procedure provides that

after a responsive pleading is served, a party may amend a “pleading only by leave of court or by

written consent of the adverse party.” 4 However, the rule, and our consistent case law, make it

clear that “leave shall be freely given when justice so requires.” Id.; see, e.g., Medeiros v.

Cornwall, 911 A.2d 251, 253 (R.I. 2006). Furthermore, we have “consistently held that trial

justices should liberally allow amendments to the pleadings.” Medeiros, 911 A.2d at 253

(quoting Serra v. Ford Motor Credit Co., 463 A.2d 142, 150 (R.I. 1983)). See also Ricard v. John

Hancock Mutual Life Insurance Co., 113 R.I. 528, 540, 324 A.2d 671, 677 (1974) (“The true

4
  Rule 15(a) of the Superior Court Rules of Civil Procedure allows a party to amend a pleading
without leave of court once “before a responsive pleading is served,” or “at any time within 20
days after” being served “if the pleading is one to which no responsive pleading is permitted and
the action has not been placed upon the trial calendar.” However, because this case does not
involve either of these situations, leave of court was required before plaintiff could amend her
complaint.
                                                -4-
spirit of the rule is exemplified in the words ‘* * * and leave shall be freely given when justice so

requires.’”).

        We previously have cited with approval the United States Supreme Court’s interpretation

of Rule 15(a) of the Federal Rules of Civil Procedure, which contains language that parallels that

of our state rule. 5 Medeiros, 911 A.2d at 253-54; see also Foman v. Davis, 371 U.S. 178, 182

(1962). In Foman, 371 U.S. at 182, the Court said:

                         “Rule 15(a) declares that leave to amend ‘shall be freely
                given when justice so requires’; this mandate is to be heeded. * * *
                If the underlying facts or circumstances relied upon by a plaintiff
                may be a proper subject of relief, he ought to be afforded an
                opportunity to test his claim on the merits. In the absence of any
                apparent or declared reason—such as undue delay, bad faith or
                dilatory motive on the part of the movant, repeated failure to cure
                deficiencies by amendments previously allowed, undue prejudice
                to the opposing party by virtue of allowance of the amendment,
                futility of amendment, etc.—the leave should, as the rules require,
                be ‘freely given.’ Of course, the grant or denial of an opportunity
                to amend is within the discretion of the District Court, but outright
                refusal to grant the leave without any justifying reason appearing
                for the denial is not an exercise of discretion; it is merely abuse of
                that discretion and inconsistent with the spirit of the Federal
                Rules.”


        In this case, the trial justice only briefly gave his reasoning for denying plaintiff’s motion

saying: “I think it is unfair to [defendants][] for me to allow [plaintiff] an opportunity to now

consider my comments and file a pleading around” them. In our opinion, this reasoning, in and

of itself, is insufficient for denying a motion to amend. In Foman, 371 U.S. at 182, the reasoning

of which has been embraced by this Court, the United States Supreme Court delineated reasons

that might justify the denial of a motion to amend. See Medeiros, 911 A.2d at 253-54. Although



5
  Rule 15(a)(2) of the Federal Rules of Civil Procedure says: “[i]n all other cases, a party may
amend its pleading only with the opposing party’s written consent or the court’s leave. The court
should freely give leave when justice so requires.”
                                                 -5-
that list is not exhaustive, and other grounds may exist, the trial justice’s reason for denying the

motion in this case simply was inadequate absent some additional showing of undue delay,

prejudice, bad faith, futility of the amendment or some other compelling reason. See id.

       This Court held on several occasions that “amendments to pleadings are to be allowed

with great liberality absent a showing of extreme prejudice” and the burden of demonstrating

such prejudice lies on the party opposing the motion to amend. Kuczer v. City of Woonsocket,

472 A.2d 300, 301 (R.I. 1984); see also Wachsberger v. Pepper, 583 A.2d 77, 78-79 (R.I. 1990)

(citing Babbs v. John Hancock Mutual Life Insurance Co., 507 A.2d 1347, 1349 (R.I. 1986)). In

this case, counsel for defendants argued that plaintiff’s motion was too “late in the game,” and

that it should therefore be denied. However, to deny a motion to amend because of delay, “[t]he

trial justice must find that such delay creates substantial prejudice to the opposing party.” 6

Wachsberger, 583 A.2d at 79. Absent such a finding, the denial cannot be upheld. Id.

       In this case, the parties were not provided with a sufficient opportunity to brief and/or

argue whether the motion should be granted or denied and the trial justice made no specific

findings. In our opinion, denying the plaintiff’s motion without such findings constituted an

abuse of discretion.




6
  We note that this Court has allowed amendments to pleadings at very late stages of litigation
when the opposing party had not demonstrated substantial prejudice. See, e.g., Wachsberger v.
Pepper, 583 A.2d 77, 79 (R.I. 1990) (holding that delay of over three years without a showing of
prejudice was insufficient to deny motion to amend); Mikaelian v. Drug Abuse Unit, 501 A.2d
721, 722-23 (R.I. 1985) (holding that it was not error to grant motion to amend four years after
the suit commenced and one day before the case was scheduled for trial).
                                                -6-
                                             IV

                                         Conclusion

       For the reasons set forth in this opinion, we vacate the grant of summary judgment and

remand the case to the Superior Court for a hearing on the plaintiff’s motion to amend and the

defendant’s objection thereto.




                                             -7-
                            RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        Kimberly Lomastro v. Margaret Iacovelli et al.

CASE NO:              No. 2011-379-Appeal.
                      (KC 10-368)

COURT:                Supreme Court

DATE OPINION FILED: December 6, 2012

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

WRITTEN BY:           Associate Justice Francis X. Flaherty

SOURCE OF APPEAL:     Kent County Superior Court

JUDGE FROM LOWER COURT:

                      Associate Justice Allen P. Rubine

ATTORNEYS ON APPEAL:

                      For Plaintiff: Thomas M. Petronio, Esq.

                      For Defendants: Brian J. Clifford, Esq.
