                                                                    Supreme Court

                                                                    No. 2017-368-Appeal.
                                                                    (NC 17-240)

                 Bruce Pollak                   :

                       v.                       :

      217 Indian Avenue, LLC, et al.            :

                                             ORDER

          This matter came before the Supreme Court on December 4, 2018, pursuant to an order

directing the parties to appear and show cause why the issues raised should not be summarily

decided. After considering the parties’ arguments set forth in their memoranda and at oral

argument, we are convinced that cause has been shown. Thus, it is our opinion that further

argument and briefing will be required to decide this matter.

          The plaintiff, Bruce Pollak (Pollak or plaintiff), appeals from a Newport County Superior

Court hearing justice’s entry of summary judgment in favor of the defendants, 217 Indian

Avenue, LLC, James Moore, and Jane Moore (defendants), and his denial of plaintiff’s motion

for summary judgment. The pertinent facts are as follows.

          On December 18, 2015, defendants purchased residential property at 217 Indian Avenue,

Portsmouth, Rhode Island, which immediately abuts plaintiff’s property. Both lots were created

in 1960 subject to the same subdivision plan, which included certain restrictive covenants (the

restrictive covenants or the restrictions). One of the restrictions provides: “No building or

buildings shall be erected, placed or altered on any lot until construction plans and specifications,

and the plans showing the location of the structure have been approved in writing by a committee

* * *.”




                                                -1-
        Throughout January and February 2017, defendants demolished a one-story home on

their property and began new construction. In the beginning of April 2017, plaintiff discovered

that defendants were building what he categorized as a “three-story structure.” The plaintiff

contacted defendants via email on April 10, 2017, complaining that defendants’ construction

violated the restrictions because defendants failed to obtain the approval required by the

restrictive covenants. On April 13, 2017, plaintiff, through counsel, demanded that defendants

cease and desist all construction.      The defendants responded, arguing that the restrictive

covenants were void, and they requested a conference with plaintiff before plaintiff filed suit.

Nevertheless, defendants continued construction.

        Thereafter, in June 2017, plaintiff filed an action in Newport County Superior Court

seeking “a temporary restraining order, preliminary injunction, permanent injunction, damages

and other relief in connection with his claims for violation of restrictive covenants and breach of

the duty of quiet enjoyment, arising out of [d]efendants’ wrongful construction of a multi-story

structure[.]”

        After plaintiff commenced suit, defendants, on June 15 and 16, 2017, secured the

approval for the already-commenced construction on their property from the owners of eight of

the nine subdivision lots, plaintiff being the sole exception. The defendants then presented

plaintiff with the approval, pursuant to the requirements of the restrictive covenants.

        On July 6, 2017, defendants moved for summary judgment pursuant to Rule 56 of the

Superior Court Rules of Civil Procedure, arguing that the procedural approval requirement of the

restrictive covenants, which plaintiff had alleged defendants breached, were satisfied and

therefore plaintiff’s claim was accordingly moot. The defendants emphasized that the remedy




                                                -2-
plaintiff sought would only be temporary, as defendants had already obtained approval from a

majority of the other lot owners, and defendants could therefore rebuild the same structure again.

       The plaintiff objected to defendants’ motion for summary judgment and filed a cross-

motion for summary judgment.         The plaintiff argued that defendants clearly violated the

restrictive covenants in failing to get approval before they began construction, and further

averred that the restrictive covenants do not allow for retroactive approval.          Furthermore,

plaintiff urged the Superior Court to adopt, for the first time, the Restatement (Third) of

Property: Servitudes §§ 6:10 and 6:13, which address, respectively, committee members’ power

to amend restrictions and whether the committee owed plaintiff a duty of good faith and fair

dealing.

       On September 5, 2017, the hearing justice heard the parties’ arguments on their cross-

motions for summary judgment and issued a bench decision.1 The hearing justice concluded, “it

would be absurd to grant injunctive relief in this case to disassemble a house only to have

[defendants] reconstruct it after [they] already received approval.”         He reasoned that the

restrictions, when read as a whole, “appear to deal with a fluid process where approval may be

gained in the middle of construction.” The hearing justice explained that the restrictions do not

contain language that would prohibit approval at any time from the beginning of construction

through its completion, and he accordingly granted defendants’ motion for summary judgment

and denied plaintiff’s motion for summary judgment. Judgment entered in favor of defendants;

and, on October 12, 2017, plaintiff filed his timely notice of appeal to this Court.




1
  Along with their motion for summary judgment, which is now before this Court, defendants
also filed a motion to dismiss James and Jane Moore as defendants. In granting defendants’
motion for summary judgment, the trial justice declared defendants’ motion to dismiss moot.


                                                -3-
       After hearing arguments in this case, we deem it prudent to return the case to the regular

calendar for full briefing and argument. In doing so, we specifically direct the parties to brief the

issue of whether there exists an express or implied right to obtain retroactive approval of

construction plans and design specifications. The parties should address this issue among such

other issues that they consider appropriate to decide the appeal before this Court.



       Entered as an Order of this Court this 7th day of January, 2019.

                                                              By Order,



                                                              _____________/s/_______________

                                                                             Clerk




                                                -4-
STATE OF RHODE ISLAND AND                                  PROVIDENCE PLANTATIONS



                        SUPREME COURT – CLERK’S OFFICE

                                 ORDER COVER SHEET

Title of Case                        Bruce Pollak v. 217 Indian Avenue, LLC, et al.
                                     No. 2017-368-Appeal.
Case Number
                                     (NC 17-240)
                                     January 7, 2019
Date Order Filed
                                     Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                     Indeglia, JJ.
                                     Newport County Superior Court
Source of Appeal
                                     Associate Justice Brian Van Couyghen
Judicial Officer From Lower Court
                                     For Plaintiff:

                                     Thomas Connolly, Esq.
Attorney(s) on Appeal
                                     For Defendants:

                                     Stephen J. MacGillivray, Esq.




SU-CMS-02B (revised November 2016)
