The Fast Five on Rhode Island Appellate Practice is featured in this week’s Rhode Island Lawyers Weekly as part of its new Blog of the Week series. This week’s edition sets forth five pointers from the Rhode Island Supreme Court for summary judgment. The Blog of the Week series can be found here.
Interlocutory orders “‘are those that are provisional or temporary, or that decide some immediate point or matter but are not a final decision on the whole matter.’” Coit v. Tillinghast, No. 2013-197-Appeal at 9 (quoting Simpson v. Vose, 702 A.2d 1176, 1177 (R.I. 1997)).
It is well settled that interlocutory orders, generally are not subject to immediate appellate review unless the order or decree falls within one of the statutory exceptions to the final judgment rule. Id. (citing R.I. Gen. Laws § 9-24-7)). This principle has been addressed at length in prior Court decisions. Past editions of the Fast Five on Appellate Procedure have addressed such decisions.
In Coit, the Rhode Island Supreme Court addressed a second, long established judicial exception to the general rule that interlocutory orders are not subject to appellate review. First recognized by the Supreme Court in McAuslan v. McAuslan, 83 A. 837, 841 (R.I. 1912), the McAuslan Doctrine provides that an interlocutory order may be reviewed before a case has concluded when the order “‘has such an element of finality as to require immediate review by [the Supreme] Court to avoid possible injurious consequences.’” Id. (quoting Chiaradio v. Falck, 794 A.2d 494, 496 (R.I. 2002)). The judicially crafted exception is designed to prevent clearly imminent and irreparable harm that would otherwise result if judicial review was not available. Id. (citing Town of Lincoln v. Cournoyer, 375 A.2d 410, 412-13 (R.I. 1977)).
There has long been confusion over whether the McAuslan Doctrine should be invoked in the context of a direct appeal or a petition for writ of certiorari. While the Rhode Island Supreme Court did not directly address that issue in Weeks v. 735 Putnam Pike Operations, LLC, No. 2012-356-Appeal, its decision strongly suggests that the doctrine may be invoked in the context of a direct appeal.
In Weeks, the defendant argued that the plaintiff’s appeal was interlocutory in nature and should be dismissed because the plaintiff chose to file a direct appeal instead of filing a petition for writ of certiorari. Id. at 3-4. Although recognizing that as a general rule, appeals from interlocutory orders are not permitted, the Supreme Court noted that interlocutory appeals are permitted if they all within the McAuslan Doctrine. Id. at 5. Under the McAuslan Doctrine, the Court will permit appellate review of “an order or decree which, although in a strict sense interlocutory, does possess such an element of finality that action is called for before the case is finally terminated in order to prevent clearly imminent and irreparable harm.” Id. (quoting Town of Lincoln v. Cournoyer, 375 A.2d 410, 412-13 (R.I. 1977). If the Court deems the appeal appropriate under McAuslan, it will treat it as a final order. Id.
Applying the McAuslan Doctrine, the Court held that although the trial justice’s order directing the parties to resolve their dispute through binding arbitration was interlocutory in nature, the plaintiff’s appeal was proper under McAuslan. Id.
In DePina v. State, No. 2011-259-Appeal, the Supreme Court concluded that an order denying a motion to quash a subpoena, while interlocutory in nature, was reviewable under the McAuslan Doctrine. Id. at 6. Although recognizing its long-standing practice of declining to address on appeal an interlocutory order that lacks finality, the Supreme Court held that application of the McAuslan Doctrine was not only proper but necessary in the context of that case. Id. at 5-6.
In DePina, in connection with his application for postconviction relief, the plaintiff had filed a subpoena seeking discovery of the mental health records of an eyewitness in his 1998 murder trial. Id. at 3. The eyewitness moved to quash the subpoena and after the motion was denied, appealed to the Supreme Court. Id. On appeal, the eyewitness argued that the consequences of the trial court’s order were imminent and irreparable because upon release of her medical records, the confidential nature of those documents would be irremediably breached. Id. at 6.
Agreeing with the eyewitness, the Supreme Court concluded that the trial court’s order “possesse[d] the requisite element of finality and potential for irreparable harm to warrant . . . immediate review.” Id.
In Cayer v. Cox Rhode Island Telecom, LLC, No. 2012-23-Appeal, after the trial court granted summary judgment in favor of one of the defendants, it granted that defendant’s motion for a Rule 54(b) judgment. Id. at 9. The plaintiff, in turn, plaintiff moved for leave to amend her complaint to include a claim against another party. Id. The trial court denied that motion and the plaintiff appealed. Id.
On appeal, the Supreme Court held that the plaintiff’s appeal was interlocutory and, therefore, not properly before the Court. In so holding, the Court recognized that generally, interlocutory orders are not subject to review unless (1) “the order or decree falls within one of the exceptions set forth in G.L. 1956 § 9-24-7” or (2) the “order [falls] within the ambit of [the McAuslan Doctrine, a] judicially created rule that permits review of an interlocutory order that has such an element of finality as to require immediate review by [the Supreme Court] to avoid possible injurious consequences.” Id. at 9-10. For purposes of the McAuslan Doctrine, consequences are injurious “when their occurrence is imminent and the damage they will work irreparable.” Id. at 10.
Against this backdrop, the Supreme Court concluded that the denial of the plaintiff’s motion for leave to amend did not fall within either exception and, accordingly, the Court declined to entertain it. Id.
The Rhode Island Supreme Court often will raise issues related to the permissibility of an appeal during the required prebriefing conference? See Coit v. Tillinghast, No. 2013-197-Appeal at 8 (Court raised issue concerning the interlocutory nature of the appeal during the prebriefing conference and directed the parties to file supplemental memoranda addressing whether the order from which the appeal was taken was interlocutory).
The Rhode Island Supreme Court’s decision in McGovern v. Bank of America, N.A., No. 2013-184-Appeal, serves as a useful reminder that a party who opposes a motion for summary judgment has an obligation to come forward with competent evidence to establish a genuine issue of material fact.
In McGovern, a foreclosure case, the defendant moved for summary judgment and supported its motion with competent evidence, in the form of an affidavit and an authenticated copy of the plaintiff’s payment history to demonstrate that the plaintiff was in arrears on his loan and had failed to cure the default prior to foreclosure. Id. at 3-4, 6. In opposing the defendant’s motion, the plaintiff provided two affidavits, neither of which indicated he was current on his loan payments. Id. at 4-5. Instead, plaintiff attempted to rely on the assertion in his complaint that his mortgage was not in arrears. Id. at 7.
The Supreme Court concluded that the plaintiff’s assertion was insufficient to withstand summary judgment. Indeed, it is well settled that a non-moving party “cannot rest on allegations, denials in the pleadings, conclusions, or legal opinions.” Id. (citing Plainfield Pike Gas & Convenience, LLC v. 1889 Plainfield Pike Realty Corp., 994 A.2d 54, 57 (R.I. 2010)); see also Ingram v. Mortgage Electronic Registration Systems, Inc., No. 2012-269-Appeal at 7. Rather, the non-moving party “must present evidence of a substantial nature predicated on more than mere conclusory statements.” McGovern, No. 2013-184-Appeal at 7 (citing Riel v. Harleysville Worcester Ins. Co., 45 A.3d 561, 570 (R.I. 2012)).
Faced with such evidence, plaintiff was required to come forward with competent evidence of his own to establish a genuine issue of fact. See Plainfield Pike Gas & Convenience, LLC, 994 A.2d at 57 (The “party opposing a motion for summary judgment has the burden of proving by competent evidence the existence of a disputed issue of material fact.”).
In McGovern v. Bank of America, N.A., No. 2013-184-Appeal, the Rhode Island Supreme Court also reminded litigants that it had previously cautioned that unauthenticated documents are “not usually competent evidence worthy of consideration by the court in ruling on a motion for summary judgment.” Id. at 10 (quoting Superior Boiler Works, Inc. v. R.J. Sanders, Inc., 711 A.2d 628, 632 n.3 (R.I. 1998)).
The Supreme Court has taken a “flexible and pragmatic approach” to Rule 901 of the Rhode Island Rules of Evidence’s requirement that evidence be authenticated. Under that approach, “a document’s authenticity [may] be established in any number of different ways.” Id. (quoting Rhode Island Managed Eye Care, Inc. v. Blue Cross & Blue Shield of Rhode Island, 996 A.2d 684, 691 (R.I. 2010)).
When submitting evidence in connection with a motion or opposition to summary judgment, authentication can be accomplished “‘by submitting an affidavit of a person with personal knowledge of the documents who can attest to their authenticity and qualify them as admissible evidence.’” Id. at 10-11 (quoting Superior Boiler Works, Inc., 711 A.2d at 632 n.3)).
In addressing the plaintiff’s failure to authenticate the evidence submitted in connection with his opposition to the defendant’s motion for summary judgment, the Rhode Island Supreme Court in McGovern v. Bank of America, N.A., No. 2013-184-Appeal, recognized for the first time the “Reply Letter Doctrine,” one of the means by which evidence may be authenticated under the Rhode Island Rules of Evidence. Id. at 10 n.12 (citing Advisory Committee Notes to R.I. R. Evid. 901(b)(4)).
The Reply Letter Doctrine allows “‘a letter [to] be authenticated by content and circumstances indicating it was in reply to a duly authenticated one.’” Id. (quoting Advisory Committee Notes to Rule 901(b)(4) of the Federal Rules of Evidence)). For the rule to apply, the proponent of the evidence must “‘prove that the first letter was dated, was duly mailed at a given time and place, and was addressed to [the sender of the reply-letter].’” Id. at 10 n.12 (quoting 2 McCormick on Evidence § 224 at 95 (7th ed. 2013)).
A Rule 12(c) motion for judgment on the pleadings “‘provides the trial court with the means of disposing of a case early in the litigation process when the material facts are not in dispute after the pleadings have been closed and only questions of law remain to be decided.’” Ingram v. Mortgage Electronic Registration Systems, Inc., No. 2012-269-Appeal at 5 (quoting Haley v. Town of Lincoln, 611 A.2d 845, 847 (R.I. 1992)).
While a Rule 12(c) motion must be decided on the basis of the pleadings,
“[i]f, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.”
R.I. Super. Ct. R. 12(c). If a party introduces materials that serve as the basis for the court’s conversion of a motion for judgment on the pleadings into a motion for summary judgment, that party cannot complaint that it lacked notice that the motion would be converted. Ingram, No. 2012-269-Appeal at 5 (citing Ouimette v. Moran, 541 A.2d 855, 856 (R.I. 1988)).