(1) TO SURVIVE SUMMARY JUDGMENT, A NON-MOVING PARTY MUST COME FORWARD WITH COMPETENT EVIDENCE TO ESTABLISH A GENUINE ISSUE OF MATERIAL FACT.

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.”).

(2) SUPREME COURT CAUTIONS LITIGANTS THAT UNAUTHENTICATED DOCUMENTS ARE NOT COMPETENT EVIDENCE WORTHY OF CONSIDERATION ON SUMMARY JUDGMENT.

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)).

(3) SUPREME COURT RECOGNIZES THE REPLY-LETTER DOCTRINE FOR AUTHENTICATION PURPOSES.

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)).

(4) PARTY THAT MOVES FOR JUDGMENT ON PLEADINGS AND ATTACHES EVIDENCE OUTSIDE THE PLEADINGS IS ON NOTICE THAT MOTION MAY BE CONVERTED TO A MOTION FOR SUMMARY JUDGMENT.

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)).

Appellate Practice for Trial Lawyers Seminar Featured in RI Bar Journal

The July/August 2014 edition of the Rhode Island Bar Journal highlights the seminar Appellate Practice for Trial Lawyers that I presented along with Rhode Island Supreme Court Chief Justice Frank J. Williams (Ret.), Lauren Jones, Christopher Bush and Kara Maguire at this year’s Rhode Island Bar Association Annual Meeting.

Image courtesy of Stuart Miles at FreeDigitalPhotos.net

Image courtesy of Stuart Miles at FreeDigitalPhotos.net

As part of my presentation, I offered my top five appellate practice tips based on decisions from the last two Rhode Island Supreme Court terms. They are:

1. It’s Ok To Be Early But You Can Never Be Late.

Notices of appeal must be filed within 20 days of the date of the entry of the judgment, order or decree appealed from. A long line of cases, including one from last term teaches that premature appeals are typically treated as timely.
See http://www.riappeals.com/deadlines/premature-appeals-treated-as-timely/

Even a sympathetic trial justice cannot help you if you have missed the time for appeal. The trial courts may not circumvent the Supreme Court’s rules by enlarging the time for appeal.
See http://www.riappeals.com/untimely-appeal/1-trial-courts-may-circumvent-supreme-courts-exclusive-jurisdiction-enlarge-time-appeal/

2. Failure to Order a Transcript Is Risky Business.

Among the things an appellant must do to perfect an appeal is to order a transcript of such parts of the proceeding that the appellant deems necessary for inclusion in the record. In case after case, including decisions from last term, the Supreme Court has reminded litigants that the failure to order a transcript of the proceedings below is risky business.
See http://www.riappeals.com/transcripts/52/

Occasionally, the transcript will not be necessary and the Supreme Court can address the merits without the transcript.
See http://www.riappeals.com/transcripts/failure-to-order-transcript-not-fatal-to-appeal/

Most often, however, the Supreme Court will hold that the failure to order a transcript is fatal to an appeal.
See http://www.riappeals.com/transcripts/52/

3. It’s Not Your Party.

A party who is not aggrieved by a judgment cannot be qualified as an appellant. The rule is statutory. R.I. Gen. Laws § 9-24-1 provides: “any party aggrieved by a final judgment, decree or order of the Superior Court may, within the time prescribed by applicable rules, appeal to the Supreme Court.” An aggrieved party is one whose interests in the lower court decision are actual and practical, as opposed to merely theoretical.
See http://www.riappeals.com/appealability/1-supreme-court-holds-that-a-party-who-is-not-aggrieved-by-a-judgment-cannot-be-qualified-as-an-appellant/

4. It’s Not Over Until It’s Final.

As a general rule (there are some exceptions), orders entered by the trial court are not appealable until the case has concluded and a final judgment has entered. The rule is designed to promote judicial efficiency and prevent piecemeal adjudication of disputes.
See http://www.riappeals.com/category/final-judgment-rule/

5. Speak Now Or Forever Hold Your Peace.

The raise or waive rule is arguably one of the most important rules of appellate practice. The rule provides that issues that have not been raised or articulated previously at trial are not properly preserved for appellate review.

General objections are insufficient to preserve issues for appellate review. For example, uttering “Objection” without articulating the basis for the objection is insufficient to preserve an issue for appeal. See http://www.riappeals.com/raise-or-waive-rule/4-preliminary-ruling-motion-limine-generally-insufficient-preserve-issue-appeal/

A preliminary ruling on a motion in limine is generally insufficient to preserve an issue for appellate review. A ruling on a motion in limine must be unequivocally definite, otherwise it will not suffice to preserve an evidentiary issue for review. A proper objection on the record at the trial itself is necessary.
See http://www.riappeals.com/raise-or-waive-rule/4-preliminary-ruling-motion-limine-generally-insufficient-preserve-issue-appeal/

(1) MOTION FOR CLASS CERTIFICATION MUST BE TIMELY FILED.

Rule 23(c)(1) of the Rhode Island Superior Court Rules of Civil Procedure governs the timeliness of a motion for class certification in a class action case. The rule provides that “[a]s soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained.” R.I. Super. Ct. R. 23(c)(1). Looking to federal cases on the issue of timeliness of requests for class certification, the Rhode Island Supreme Court has long recognized that each motion for certification must be reviewed on the facts and circumstances of the particular case and there is no set deadline by which the court must act. Zarrella v. Minnesota Mutual Life Insurance, Co., 824 A.2d 1249, 1263 n.16 (R.I. 2003).

This term, the Rhode Island Supreme Court reminded litigants that it has not adopted the 2003 amendments to Federal Rule 23 or its more liberal timeliness requirement. Long v. Dell, Inc., No. 2012-248-Appeal at 11-12. Compare R.I. Super. R. Civ. P. 23(c)(1) (“As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained.”) with Fed. R. Civ. P. 23(c)(1)(A) (“At an early practicable time after a person sues or is sued as a class representative, the court must determine by order whether to certify the action as a class action.”).

(2) PLAINTIFF CLASS MUST BE TREATED AS CERTIFIED FOR PURPOSES OF A PRECERTIFICATION MOTION FOR SUMMARY JUDGMENT.

The Rhode Island Supreme Court held this term that when a defendant files a motion for summary judgment before the plaintiff class is certified, the court must treat the case as though it were certified as a class action. Long v. Dell, Inc., No. 2012-248-Appeal at 10-11. Such a rule is consistent with the Court’s summary judgment jurisprudence, which requires the court to view the evidence in the light most favorable to the non-moving party. Id.   By treating a case as a certified class action at the motion for summary judgment stage, the court may consider the injury or damages sustained by the class, and is not restricted to considering only the injury or damages of the named plaintiff. Id. at 11 (noting that “if the class is treated as certified, for purposes of viewing the evidence in the light most favorable to the nonmoving party on summary judgment, an inference of class-wide injury should be drawn when competent evidence permits”).

(3) AN INJUNCTION IS NOT A CAUSE OF ACTION.

In Long, the Rhode Island Supreme Court for the first time made clear that “[a]n injunction is a remedy, not a cause of action.” Long v. Dell, Inc., No. 12-248-Appeal at 23-24 (holding that the Superior Court justice properly dismissed the plaintiff’s request for injunctive relief). In so holding, the Court recognized authority from other jurisdictions holding that injunctive relief is not a cause of action. See Thompson v. JPMorgan Chase Bank, N.A., No. 13-2230, 2014 WL 1586992, at *1 n.1 (6th Cir. Apr. 22, 2014); Koufos v. U.S. Bank, N.A., 939 F. Supp. 2d 40, 46 (D. Mass. 2013)). The Supreme Court’s ruling is consistent with the Superior Court’s recognition in State v. Lead Ind. Assn., Inc. that injunctive relief is not a standalone cause of action. See State v. Lead Ind. Assn., Inc., C.A. No. 99-5226, 2001 R.I. Super. LEXIS 37 (R.I. Super. Ct. Apr. 2, 2001) (concluding that “absent controlling case law establishing that a request for injunctive relief constitutes an independent cause of action, injunctive relief is a remedy and, can not, in itself, be recognized as a substantive claim.”).

(4) MOTIONS TO STRIKE REVIEWED FOR ABUSE OF DISCRETION.

Addressing another issue of first impression, the Rhode Island Supreme Court held this term that a trial justice’s decision on a motion to strike brought pursuant to Rule 12(f) of the Rhode Island Superior Court Rules of Civil Procedure is reviewed for abuse of discretion. Long v. Dell, Inc., No. 2012-248-Appeal at 24-25. In so holding, the Court reviewed case law interpreting the substantially similar Rule 12(f) of the Federal Rules of Civil Procedure and concluded that because a the trial court enjoys liberal discretion when ruling on a motion to strike, the trial justice’s decision should be reviewed only for an abuse of discretion. Id.