                                                                  Supreme Court
                                                                  No. 2011-270-Appeal
                                                                  No. 2011-271-Appeal
                                                                  No. 2011-272-Appeal
                                                                  (WC 06-132)


               Joseph Chen                    :

                     v.                       :

            Subaru of America.                :


                                           ORDER

       Before this Court are cross-appeals by the plaintiff, Joseph Chen, and the defendant,

Subaru of America (Subaru).1 This case came before us for oral argument on October 23, 2012,

pursuant to an order directing the parties to appear and show cause why the issues raised in these

appeals should not be summarily decided. After reviewing the record and considering the

written and oral submissions of the parties, we are satisfied that these appeals may be decided

without further briefing or argument. For the reasons set forth in this order, we dismiss the

appeals and affirm the judgment of the Superior Court.

       Although we ultimately resolve this consolidated appeal on procedural grounds, we

briefly turn to the facts in this case. Chen is the owner of a 1995 Subaru Impreza, which he


1
  The case before us involves three separate docket numbers, which have been consolidated by
this Court. Case No. 2011-270-A is a cross-appeal by Subaru. Despite prevailing on a motion
for judgment as a matter of law pursuant to Rule 50 of the Superior Court Rules of Civil
Procedure in this case, Subaru cross-appeals from the Superior Court’s (1) denial of its motion to
dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Superior Court Rules of Civil
Procedure and (2) denial of its motion for summary judgment pursuant to Rule 56 of the Superior
Court Rules of Civil Procedure. Case No. 2011-271-A is Chen’s appeal from the trial justice’s
ruling quashing certain subpoenas as facially defective. Lastly, Case No. 2011-272-A is Chen’s
appeal from the grant of judgment as a matter of law in favor of Subaru.




                                             -1-
obtained in 2004 from a private individual.     On June 14, 2005, Chen brought the car to Pat’s

Auto Center (Pat’s), a repair shop located in Westerly, Rhode Island, to fix the clutch on the

manual transmission, which he believed had been slipping.2           Pat’s ordered a new clutch

assembly and told Chen to bring the car back to the repair shop on June 20, 2005, for the

installation.

        Thereafter, when Pat’s attempted to install the new clutch assembly, it soon discovered

that the replacement part it had ordered did not fit with the car’s transmission.       Consequently,

the car was not ready for Chen to pick up that same day (June 20, 2005), as Pat’s had originally

promised. Pat’s ultimately completed the installation two days later, on June 22, 2005.

        Chen, representing himself pro se, then brought a claim against Subaru under the

Deceptive Trade Practices Act (act), G.L. 1956 chapter 13.1 of title 6.3 He claimed that Subaru,

when it originally manufactured his car, improperly installed an “unidentified [m]ishmash part,”

which did not conform to the actual specifications for the specific model of his car.




2
  Chen originally filed a complaint naming both Subaru and Pat’s as defendants. In his breach-
of-contract claim against Pat’s, he claimed that Pat’s overcharged him for the installation of the
clutch and misrepresented when the job would be completed. On June 26, 2008, the Washington
County Superior Court granted summary judgment in favor of Pat’s because the claim failed to
meet the requisite amount in controversy. We affirmed the grant of summary judgment in an
order on October 21, 2009. Chen v. Subaru of America, 981 A.2d 1018 (R.I. 2009) (mem.).
Accordingly, Pat’s is no longer a defendant in this case.
3
  In pertinent part, G.L. 1956 § 6-13.1-5.2(a) provides that
                “[a]ny person who purchases or leases goods or services primarily
                for personal, family, or household purposes and thereby suffers
                any ascertainable loss of money or property, real or personal, as a
                result of the use or employment by another person of a method,
                act, or practice declared unlawful by § 6-13.1-2 [comprising
                ‘[u]nfair methods of competition and unfair deceptive acts or
                practices in the conduct of any trade or commerce’], may bring an
                action * * * to recover actual damages * * *. The court may, in its
                discretion, award punitive damages and may provide other
                equitable relief that it deems necessary or proper.”


                                              -2-
        Subaru subsequently moved to dismiss the complaint under Rule 12(b)(6) of the Superior

Court Rules of Civil Procedure and submitted a memorandum contending that Chen failed to

state a claim under the act because (1) there was no privity of contract between Chen and

Subaru; and because (2) Chen did not specifically plead that he suffered an ascertainable loss of

money or property. On February 19, 2007, a hearing justice denied the motion, viewing the facts

in the light most favorable to Chen. The hearing justice declared that the act did not “seem to * *

* require[ ] privity of contract between the consumer and the alleged deceptive trade practice

violator, as long as there is a connection between the deceptive trade practice and the harm to the

plaintiff.”

        Thereafter, Subaru moved for summary judgment.            In its supporting memorandum,

Subaru maintained that Chen lacked standing under the act. In an order dated August 18, 2008, a

second hearing justice denied the motion. She memorialized that order in a written decision

issued on August 25, 2008, in which she determined that Chen had standing to bring a claim

against Subaru under the act. Notably, though, she stated that because the “motion was based

solely on * * * arguments as to standing, * * * it [wa]s therefore irrelevant to this motion

whether or not the alleged conduct itself [wa]s deceptive as a matter of law.”

        At two separate pretrial hearings a third justice, who later presided over the trial, quashed

subpoenas that were issued to two witnesses Chen had expected to call at trial. The subpoenas

did not contain the signatures of an issuing officer, as required by Rule 45 of the Superior Court

Rules of Civil Procedure. Chen objected to the trial justice’s ruling quashing the subpoenas,

arguing, among other things, that the motion to quash was not brought within a reasonable time.

He thereafter appealed to this Court. The appeal, however, was interlocutory and therefore not




                                              -3-
appropriate for review by this Court at the time it was filed.4 See Francis v. Brown, 776 A.2d

1065, 1065-66 (R.I. 2001) (mem.); see also 2 David A. Wollin, Rules of Appellate Procedure

with Commentaries § 3:2 (West 2004) (“It has long been established in Rhode Island that

appellate review must normally await the trial court’s final determination of the action. * * *

[T]he right to appeal is limited to final judgments, orders, and decrees * * * [since these

dispositions] completely terminate[ ] the litigation between the parties on the merits.”).

       The case then proceeded to trial before a jury on February 8, 2011.5 After Chen rested

his case, Subaru moved for a judgment as a matter of law pursuant to Rule 50 of the Superior

Court Rules of Civil Procedure, which the trial justice granted on February 9, 2011. In his

decision, the trial justice noted that, although Chen marked exhibits for identification, none were

actually submitted into evidence as full exhibits.      Taking the evidence in the “light most

favorable to Mr. Chen,” the trial justice determined that Chen failed to satisfy the requisite

elements under the act. Specifically, he ruled that Chen failed to (1) produce evidence that

Subaru actually manufactured the car and parts at issue; (2) demonstrate that a deceptive act ever

occurred;6 and (3) prove that he suffered actual damages. Lastly, the trial justice determined that

Chen was not entitled to punitive damages because he failed to prove that any acts on the part of

Subaru were “intentional[,] * * * malicious, reckless, or in wanton disregard for the rights of Mr.

Chen or other complainants.”

4
  At the outset, we note that review of the trial justice’s decision to quash the subpoenas would
ordinarily merge into Chen’s subsequent appeal from the final judgment in favor of Subaru. See
Greensleeves, Inc. v. Smiley, 942 A.2d 284, 290 (R.I. 2007) (stating that “a notice of appeal that
designates the final judgment encompasses not only that judgment, but also all earlier
interlocutory orders that merge in the judgment”) (quoting John’s Insulation, Inc. v. L. Addison
and Associates, Inc., 156 F.3d 101, 105 (1st Cir. 1998)).
5
  As we discuss below, the transcript from the actual trial proceeding was never ordered on
appeal, which is ultimately fatal to this appeal.
6
  Additionally, the trial justice stated that Chen “needed to submit expert testimony in order to
establish that [the part at issue] was defective.”


                                              -4-
       Chen then appealed to this Court.7 Thereafter, Subaru cross-appealed from the Superior

Court’s earlier denials of its Rule 12(b)(6) motion and its Rule 56 motion for summary judgment.

Based on the record before us on appeal, there are threshold procedural impediments that

preclude this Court from deciding whether the trial justice’s decisions to quash the subpoenas

and to grant judgment as a matter of law were proper.

       Chen did not perfect the appeal to this Court in accordance with Article I, Rule 10(b)(1)

of the Supreme Court Rules of Appellate Procedure. His failure to order a transcript of the trial

proceeding in this case is not only “risky business,” but also fatal to his appeal. See Bergquist v.

Cesario, 844 A.2d 100, 105 (R.I. 2004). Rule 10(b)(1) states that “[w]ithin twenty (20) days

after filing the notice of appeal the appellant shall order from the reporter a transcript of such

parts of the proceedings not already on file as the appellant deems necessary for inclusion in the

record.” Additionally, Article I, Rule 11(a) of the Supreme Court Rules of Appellate Procedure

provides that, “[t]he record on appeal, including the transcript necessary for the determination of

the appeal, shall be transmitted to the Supreme Court within sixty (60) days after the filing of the

notice of appeal * * *.”

       Moreover, pursuant to Rule 11, “it is the duty of the appellant ‘to ensure that the record is

complete and ready for transmission.’” Small Business Loan Fund Corp. v. Gallant, 795 A.2d

531, 532 (R.I. 2002) (quoting Procopio v. PRM Concrete Corp., 711 A.2d 650, 651 (R.I. 1998)

(mem.)). As such, “[f]ailure to perfect an appeal under Rule 11, which requires transmission of

the record within 60 days of filing the notice of appeal, ‘leaves a [would-be appellant] in the




7
  In its brief to this Court, Subaru contends that Chen’s appeal is premature because he appealed
a few hours prior to the entry of final judgment. However, the later entry of final judgment cured
the defect in the premature appeal. See Merrimack Mutual Fire Insurance Co. v. Dufault, 958
A.2d 620, 623 n.4 (R.I. 2008).


                                             -5-
same position as not having filed notice at all.’” Gallant, 795 A.2d at 532-33 (quoting Town of

Lincoln v. Cournoyer, 188 R.I. 644, 648, 375 A.2d 410, 412 (1977)).

       It is well settled that “[if] the appealing party fails to provide a sufficient transcript, th[is]

Court cannot perform a meaningful review and has no choice but to uphold the lower court’s

findings.” Bergquist, 844 A.2d at 105 (citing State v. Pineda, 712 A.2d 858, 861 (R.I. 1998)).

Here, without a transcript of the trial proceeding, we are unable to adequately conduct the

requisite de novo review of the trial justice’s decision on the motion for judgment as a matter of

law. See Savoy Realty Corp. v. LPL, Inc., 121 R.I. 962, 962, 401 A.2d 61, 61 (1979) (mem.)

(“[W]e ordinarily will not decide matters presented to us unless there has * * * been transmitted

to us so much of the record of the tribunal below as may be necessary to enable us to pass on the

question at issue * * *.”); see also Medeiros v. Sitrin, 984 A.2d 620, 625 (R.I. 2009). Therefore,

we deny and dismiss Chen’s appeal of that decision.

       Additionally, with respect to Chen’s appeal of the trial justice’s decision to quash the

subpoenas, we likewise dismiss. As noted above, Chen’s initial appeal was interlocutory and

therefore not properly before this Court. Nonetheless, once Chen appealed the final judgment to

this Court, the interlocutory orders merged into that appeal. See note 4, supra. However, since

we dismiss the appeal of the trial justice’s decision on the motion for judgment as a matter of

law, there is no longer a proper vehicle that enables us to review the quashing of the subpoenas.

Accordingly, the appeal of the trial justice’s decision to quash the subpoenas is effectively

unhinged from the appeal of the Rule 50 motion, and it is dismissed.

       We note, though, that even if we were to consider the merits of Chen’s appeal of the trial

justice’s decision to quash the subpoenas, we discern no abuse of discretion on the part of the




                                               -6-
trial justice. See Butera v. Boucher, 798 A.2d 340, 345 (R.I. 2002).8 We agree with the trial

justice’s determination that the subpoenas were invalid for their failure to contain the signature

of an issuing officer, in contravention of Rule 45. Thus, we would conclude that the quashing

was proper.

       Furthermore, we need not reach the merits of Subaru’s cross-appeal, since we affirm the

judgment of the Superior Court in favor of Subaru. At oral argument, Subaru acknowledged that

its cross-appeal was brought out of “an abundance of caution” and was therefore contingent. It is

well settled that this Court will not render an advisory opinion, unless it is constitutionally

required. See H.V. Collins Co. v. Williams, 990 A.2d 845, 847 (R.I. 2010). Therefore, we

dismiss the cross-appeal.

       For the reasons stated in this order, we dismiss the appeals and affirm the judgment of the

Superior Court, to which we remand the record in this case.

       Entered as an Order of this Court, this 27th day of November, 2012.



                                                    By Order,




                                                    _______________/s/___________________
                                                                   Clerk




8
  On appeal, although Chen failed to order a transcript of the trial proceeding, he did order
transcripts of the hearings concerning the motions to quash.


                                             -7-
                          RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                               Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:      Joseph Chen v. Subaru of America.

CASE NO:            No. 2011-270-Appeal
                    No. 2011-271-Appeal
                    No. 2011-272-Appeal
                    (WC 06-132)

COURT:              Supreme Court

DATE ORDER FILED:   November 27, 2012

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

WRITTEN BY:         N/A – Court Order

SOURCE OF APPEAL:   Washington County Superior Court

JUDGE FROM LOWER COURT:

                    Associate Justice Allen P. Rubine

                    Associate Justice O. Rogeriee Thompson

                    Associate Justice Jeffrey A. Lanphear

ATTORNEYS ON APPEAL:

                    For Plaintiff: Joseph Chen, Pro se

                    For Defendant: Kelly A. Kincaid, Esq.
