John Oreste Mancini's Legal Cases (8)

Real estate

Roger N. BROCHU v. Richard SANTIS. No. 2007-115-Appeal. Supreme Court of Rhode Island.

Jan 01, 2008

OUTCOME: Denial of Plaintiff's Appeal

The plaintiff, Roger N. Brochu (Brochu or plaintiff), appeals from a summary judgment. In 2004, defendant, Richard Santis (Santis or defendant), a member of Santis, Martins & Croke, LLC, a company enga ... ged in the business of real estate development, contacted Brochu, a real estate salesperson, seeking information about the availability of real estate for the purpose of development. On or about July 31 of that year, Brochu and Santis met to review documents related to a multi-lot parcel located in the vicinity of Division Street and South Bend Street, in Pawtucket, Rhode Island (hereinafter referred to as the property). At that point, the property was not listed for sale, but the record reveals that Brochu was aware that the owners might be amenable to selling it. In a subsequent meeting on or about August *451 2, 2004, defendant expressed an interest in acquiring the property and indicated that he was willing to pay $750,000. The plaintiff prepared a hand-written offer form[1] (offer) reflecting that amount, which he then presented to a representative of the seller. Included within the offer was a term providing for the payment of a "3% commission to RE/MAX Exec."[2] It is undisputed that this commission was to be paid by the seller. Save for this document, there was no written or signed agreement between Brochu and Santis with respect to the property. Notwithstanding, Brochu alleges that there was an agreement for compensation "by virtue of a further standard percent commission or commissions" on the sale of any dwelling that was developed on the property. Significantly, and fatal to plaintiff's case, this agreement was not in writing. After the offer was submitted, negotiations between Brochu and the seller reached an impasse, and the seller's representative was not responding to his repeated telephone inquiries concerning the offer. At this time, Santis and Brochu agreed to have an attorney contact the seller to pursue the transaction. Eventually, an agreement was reached between Santis and the seller for the purchase of a parcel that comprised a different plat composition. This agreement provided for a purchase price of $1,055,000, and Brochu was not compensated under the terms of that agreement. Indeed, plaintiff says that he found out about the sale after reading a notice of a public hearing in a newspaper that set forth defendant's plans to develop the reconfigured parcel. Seeking compensation for the services that he allegedly performed for defendant in connection with the property,[3] plaintiff filed a verified complaint in the Superior Court on April 26, 2005, alleging multiple causes of action, including fraud, breach of implied contract, breach of good faith and fair dealing, and also seeking damages based on quantum meruit. On May 16, 2005, defendant moved to dismiss the complaint under Rule 12(b)(6) of the Superior Court Rules of Civil Procedure, which motion was denied. In his answer, defendant asserted the affirmative defenses of Statute of Frauds, estoppel, laches, accord and satisfaction, and failure to state a claim upon which relief may be granted. On August 23, 2006, defendant filed a motion for summary judgment, arguing that any agreement between the parties was a contract for the sale of land for which, in accordance with the Statute of Frauds, G.L.1956 § 9-1-4, a writing was required. The plaintiff objected, alleging that material issues of fact existed, including his disputed contention that the parties entered into a contract for a finder's fee, in which defendant promised to compensate plaintiff with the listing agreements for any dwellings that were developed on the property. A hearing was conducted in the Superior Court on January 9, 2007, and an order granting summary judgment was entered in favor of defendant on January 23, 2007. A final judgment, reflecting that order, was entered against plaintiff on all counts on February 16, 2007. The plaintiff filed a timely notice of appeal from that judgment.

Land use and zoning

Nunes v. Meadowbrook Development, Co., Inc., 807 A.2d 943 (R.I. 2002)

N/A

OUTCOME: The Superior Court granted the motion and required plaintiffs to post a $650,000 bond in connection with the prosecution of their appeal.

This appeal came before the Court in conference on September 17, 2002 with respect to a motion to annul a Superior Court order requiring the plaintiffs, Fernando E. Nunes and Nancy A. Nunes (plaintiffs ... or the Nuneses), to post a $650,000 bond as a condition of prosecuting their appeal from a judgment. The Nuneses, who own a certain parcel of property in the town of Cumberland (town), sought injunctive relief to prevent the defendant, Meadowbrook Development Co., Inc. (Meadowbrook) from using an easement on the Nuneses' property to access certain adjacent lots owned by Meadowbrook. But the court ruled against them, concluding that the Nuneses' property contained an easement running in favor of Meadowbrook's adjacent property. The Nuneses have appealed from that judgment to this Court. After they filed their notice of appeal, however, Meadowbrook invoked Article I, Rule 7 of the Supreme Court Rules of Appellate Procedure, and requested the Superior Court to require the Nuneses to post a bond to secure any damages that Meadowbrook might incur as a result of delayed or lost lot sales during the Nuneses' appeal. In particular, Meadowbrook suggested that the mere pendency of the appeal challenging its right to use the easement would negate pending and contemplated sales of various adjacent house lots that it owns; that existing and prospective buyers would be unable to obtain financing to purchase such lots during the pendency of this appeal; and that, consequently, it would lose substantial sums of money during the appeal process that it already had invested in the anticipated development and sale of these lots.

Personal injury

Koussa v. United States, 261 F.Supp. 2d 91 (D.RI 2003)

N/A

OUTCOME: The United Staes' Motion is denied

Plaintiff June Koussa filed her Amended Complaint on July 29, 2002, alleging that Defendant United States of America is liable under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671, et seq., for ... personal injuries sustained by Koussa when she tripped and fell over a speed bump located in the parking lot of the United States Post Office in Wakefield, Rhode Island. This case is now before the Court on the United States' Motion for Judgment on the Pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.[1] The United States claims that the Plaintiffs FTCA cause of action fails because of the "discretionary function" exception to the FTCA, 28 U.S.C. § 2680(a). Because this Court does not agree that the discretionary function exception to the FTCA applies to the placement of a speed bump at the Wakefield Post Office, the United States' motion must be denied.

Real estate

Plainfield Pike Gas & Convenience, LLC v. 1889 Plainfield Pike Realty Corp., 994 A.2d 54

N/A

OUTCOME: Order to vacate both the judgment in favor of the defendant and any order removing attachment

This dispute arises from a contract, executed in March 2002, for property at 1889 Plainfield Pike in Johnston, Rhode Island. The agreement identified defendant as the "landlord" and "Dashrath Patel * * ... * or his nominee" as the "tenant." The contract recited that the tenant could not assign the agreement without the prior written consent of defendant. Under the agreement, the tenant agreed to pay a $200,000 initial fee in exchange for the right to lease the premises. That sum was to be refunded in the event that conditions precedent set forth in Section 2 of the contract were not satisfied. Said conditions included construction of a convenience store and gasoline sales facility on the property by defendant on or before September 1, 2003. According to plaintiff, the investors in Gas Convenience, LLC deposited a total of $175,000 into various accounts as directed by defendant. The gas station and convenience store were not constructed by September 1, 2003, but an amendment was executed that month that extended the time for construction. The amendment stated that construction would be completed within four months of its commencement, weather conditions permitting. Further, the amendment identified Dashrath as the tenant and restated that the tenant could not assign the agreement without the written consent of defendant.

Land use and zoning

West, et al v. McDonald, 18 A.3d 526 (R.I. 2011)

N/A

OUTCOME: the trial justice affirmed the board of appeals and entered judgment in favor of the City of East Providence on September 10, 2008.

In February 2006, petitioner sought approval for an administrative subdivision of three parcels of land located between Lynn and Vineland Avenues in East Providence. Theland is situated in a residentia ... l-4 (R-4) zone that permits construction of two-unit dwellings, provided that they are built on lots containing at least 8, 750 square feet. To construct three two-family dwellings on the land and comply with the zoning ordinance, petitioner needed to shift the lot lines of the parcels to achieve three lots of the minimum permissible size (one lot actually would be 10,500 square feet). Map 405, Block 1, parcels 5 and 5.2 are owned by Michael West Builders, Inc. Map 405, Block 1, parcel 5.1 is owned by Michael West. Without the lot-line adjustments, parcels 5 and 5.1 are only 8,400 square feet, and parcel 5.2 is 11,200 square feet. After reviewing petitioner's application, the city planner, Jeanne Boyle, determined that West's petition for an administrative subdivision should be reviewed as a minor subdivision. That triggered a more comprehensive approval process because, under municipal regulations, minor subdivisions must be approved by the city's planning board. As such, on March 24, 2006, West resubmitted his application, this time seeking a minor subdivision. Under Article 7, Sec. 7-3 of the East Providence Land Development and Subdivision Review Regulations, the administrative officer may reassign an application for an administrative subdivision for review as a minor subdivision or some other classification if she determines that it does not qualify as an administrative subdivision. This municipal regulation stems from G.L. 1956 § 45-23-37(e), which precludes appeal from the denial of an administrative subdivision and requires that such applications be resubmitted as petitions for minor subdivisions. On April 20, 2006, Edward Pimentel, East Providence's zoning officer determined that the proposal complied with the relevant zoning provisions, and he approved West's application for a minor subdivision with respect to any zoning-code provisions. After Ms. Boyle issued a certificate of completeness of the application, it was forwarded to the planning board for its consideration. On May 3, 2006, the planning department made a recommendation to the planning board that that body grant conditional approval for the subdivision. In its evaluation, the planning department concluded that petitioner's proposal was consistent with East Providence's comprehensive plan, as well as its zoning ordinance. The conditions articulated in the planning department's May 3rd recommendation are not material to this appeal. Among its required findings, the planning department noted: (1) "Based upon the submitted plan and required materials, Planning staff finds that the proposed subdivision is consistent with the East Providence Comprehensive Plan, including its goals, objectives, policy statements and Land use 2010 Plan." (2) "The Zoning Officer has reviewed the site plan and submitted materials and has determined that the subdivision as proposed, fully complies with zoning * * *." Although the proposal seemed to be moving seamlessly through the approval process, controversy raised its head when the planning board considered the application at its meeting on May 8, 2006. Despite the assertion of the planning department that the proposed changes in the boundary lines and the construction of three two-family dwellings were in accordance with the comprehensive plan, including the density requirements, several neighbors voiced concern at the meeting. The common thread of the neighbors' objections was that the neighborhood already was densely populated, and the area would not be able to absorb the burden that six additional residential units would bring. In response to the concerns of the neighbors, the planning board continued the hearing in order to investigate the matter further. Specifically, the city planner raised a concern that the proposal might not, in fact, comply with the comprehensive plan's density limits.

Land use and zoning

Narragansett Improvement Company, et al v. Wheeler et al, 21 A.3d 430 (R.I. 2011)

N/A

OUTCOME: Affirmation of Superior Court Judgement

Narragansett Improvement Company (Narragansett Improvement), one of three plaintiffs in the underlying action,1 appeals from a Superior Court judgment in favor of the defendants, members of the Rhode I ... sland Advisory Commission on Historical Cemeteries (advisory commission).2 The judgment, which was entered pursuant to Rule 54(b) of the Superior Court Rules of Civil Procedure, emanates from an order granting the defendants' motion to dismiss certain counts of the plaintiffs' complaint. Narragansett Improvement argues before us that the trial justice erred in dismissing these counts because the advisory commission exceeded its authority, under G.L. 1956 § 23-18.3-1, by "identifying" and "registering" certain features on the plaintiffs' property, located in the Town of North Smithfield, as historical cemeteries and by notifying the town as to the same. Narragansett Improvement contends that the advisory commission's actions violated the plaintiffs' procedural and substantive due process rights under the Rhode Island Constitution. Narragansett Improvement further asserts that the trial justice erred by not recognizing a slander of title claim against the defendants. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.

Land use and zoning

North End Realty, LLC v. Matttos, et al, 25 A.3d 527 (R.I. 2011)

N/A

OUTCOME: For the reasons set forth in this opinion, we vacate the judgment of the Superior Court.

North End is a developer, and it is the owner of real property in East Greenwich. On March 28, 2006, North End filed with the town's planning board a "pre-application" for the development of a five-lot ... subdivision. Subsequently, on November 6, 2006, the town council of East Greenwich passed three new ordinances, the purpose of which was to promote the development *529 of affordable housing in the town. The ordinances included a requirement that developers either designate 15 percent of the units in any subdivision or major residential land development as affordable housing or pay the sum of $200,000 as a "fee-in-lieu" of constructing the required number of affordable housing units. (Pursuant to the ordinances at issue, the "fee-in-lieu" is to be paid for each affordable unit that should be built so as to meet the 15 percent threshold, but which a developer did not build.) On February 20, 2007, North End filed with the planning board both "master" and "preliminary" plans for its proposed subdivision; in those plans the developer outlined its intentions relative to the building of five residential dwellings. Because North End indicated that it did not intend to include any affordable housing units as part of the subdivision, the town (citing the recently adopted ordinances) mandated that North End pay a $200,000 fee-in-lieu before the developer would be allowed to (1) record any subdivision approval that it might receive from the planning board and (2) begin to develop the property. On September 13, 2007, North End filed a complaint in the Superior Court for Kent County, seeking declaratory and injunctive relief against defendants. In the complaint, North End alleged that the fee-in-lieu requirement contained in the town's ordinances violated its right to substantive due process, and it further alleged that the fee-in-lieu constituted a regulatory taking in violation of article 1, section 16, of the Rhode Island Constitution and an illegal tax in violation of article 13, section 5, of the Rhode Island Constitution. On January 7, 2008, citing Rule 65 of the Superior Court Rules of Civil Procedure, North End filed a motion for injunctive relief, requesting that East Greenwich be "enjoined from mandating a fee-in-lieu of construction of affordable housing units to be assessed and charged upon [North End] and similarly situated property owners seeking to develop and/or subdivide their property * * *." In its motion for injunctive relief, North End made the same allegations with respect to the fee-in-lieu that it had made in its September 2007 complaint, and it additionally alleged that the fee-in-lieu requirement violated its right to procedural due process and to equal protection under the Rhode Island Constitution; North End also contended that, "[m]ore importantly," the town had imposed the "tax/fee without any explicit authority from the General Assembly * * *." (Emphasis in original.) On February 22, 2008, a hearing was held before a justice of the Superior Court with respect to North End's motion for injunctive relief. The parties stipulated to the facts; and, by agreement, no witnesses testified. On April 22, 2008, the hearing justice issued a written decision denying North End's motion. The hearing justice concluded that the fee-in-lieu was not an illegal tax, but was rather what the hearing justice said was an "acceptable" fee; he further concluded that the fee-in-lieu was not an unconstitutional taking and did not violate North End's right to substantive due process or equal protection. Accordingly, the hearing justice ruled that North End had failed to establish that there was a likelihood of success on the merits of its claim; for that reason, he ruled that it was not entitled to injunctive relief. Final judgment entered in favor of defendants on September 8, 2008, and North End filed a timely notice of appeal.

Business

Wilkes Street Realty Trust v. Hallinan Capital Corp. and Regional Financing Co., LLC C.A. No.:08-31553 (R.I. 2012)

N/A

OUTCOME: Because the Debtor has failed to carry its burden of proof with respect to any of its theories of relief against the Defendants, this Court will enter judgment in favor of the Defendants on all counts of the Complaint.

In early 2006, Jerry and Tiffany Carr (together, the "Carrs") became interested in purchasing and rehabilitating property at 37 Wilkes Street, Springfield, Massachusetts (the "Property"). The Carrs, wh ... o had some experience with similar real property rehabilitation projects in western Massachusetts, envisioned developing the Property into a church, daycare center, and bookstore/coffee shop and four house lots in the rear. The Property already included a partially built church, but was otherwise overgrown, landlocked, and had accumulated significant outstanding real estate taxes.1 The Carrs formed the Wilkes Street Realty Trust to hold the Property, naming Tiffany as trustee and both Tiffany and Jerry as beneficiaries of the Trust.2 The Carrs retained Attorney Elin Gaynor ("Attorney Gaynor") to represent the Carrs and the Trust in the acquisition of the Property. The Carrs' plan was to obtain 100% financing to purchase and develop the Property. That development would necessarily include purchasing an abutting property in order to provide the needed frontage and ultimately subdividing the rear portion of the property into the four separate house lots. They engaged Regional — a company that specializes in brokering short-term financing deals for real estate developers — to help them attain the necessary financing.3 [477 B.R. 4] Joseph Giuttari, the sole owner of Regional, was successful in brokering that financing from Hallinan.4 Hallinan conditioned the financing, however, on the Debtor's willingness to execute and deliver a deed in lieu of foreclosure (the "Deed in Lieu") at the closing. Attorney Frank Tassoni ("Attorney Tassoni"), who represented Hallinan with respect to this loan transaction and prepared the corresponding documents,5 warned Regional that the Deed in Lieu might not be effective because, inter alia, the Deed in Lieu was not accompanied by an estoppel affidavit. On September 29, 2006, the Debtor executed and delivered a mortgage to Hallinan (the "Hallinan Mortgage") as security for a loan represented by a promissory note of even date in the principal amount of $345,000 and due in full (including interest) on January 29, 2007 (the "Hallinan Note"). Considering that they would need at least another $600,000 to fully develop the Property, it was always the Carrs' intention to refinance the Hallinan loan once they had made some progress on the development of the Property. In addition to the other Hallinan loan documents, Tiffany, in her capacity as trustee, executed the Deed in Lieu. Attorney Gaynor testified that she advised the Carrs, and the Carrs understood, that the Hallinan loan was a short-term loan that did not provide enough funds to fully develop the Property and that the Carrs would need to refinance within four months of closing on the Hallinan loan. This strategy of obtaining a series of short-term loans to carry a project to completion was described by Attorney Gaynor as the Carrs' "business model." When the Hallinan Note came due in late January 2007, the Debtor was unable to pay the outstanding balance. The Carrs allege that Giuttari told them that, unless a solution was obtained, Hallinan intended to record the Deed in Lieu. The Carrs also allege that Giuttari, on behalf of Hallinan, suggested instead that the Debtor and Hallinan enter into a joint venture agreement whereby an additional lien would be created on a portion of the Property and the Debtor would pay Hallinan an additional $125,000. Giuttari denied that a joint venture agreement was ever proposed or existed.6 However, Tiffany testified that on March 3, 2007, in her capacity as trustee, she executed a joint venture agreement, but did not retain a copy. Tiffany further testified that she would not have signed the joint venture agreement but for Hallinan's threat to record the Deed in Lieu. Hallinan never recorded the Deed in Lieu.7

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