Amber Preston v. Town of Hopkinton

• Court: Supreme Court of Rhode Island
• Decided: March 4, 2022
• Docket: 20-223
• Status: Unpublished

Opinion

Supreme Court

No. 2020-223-Appeal. (WC 17-470)

Amber Preston :

v. :

Town of Hopkinton et al. :

ORDER

The plaintiff, Amber Preston (Ms. Preston or plaintiff), appeals from a final

judgment of the Superior Court granting summary judgment and denying her cross-

motion for summary judgment in favor of the defendants, the Town of Hopkinton;

the Zoning Board of Review of the Town of Hopkinton (the zoning board); and Brian

Rosso, in his capacity as Finance Director of the Town of Hopkinton (collectively

the town or defendants). This case came before the Supreme Court 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’ written and oral submissions

and reviewing the record, we conclude that cause has not been shown and that this

appeal may be decided without further briefing or argument. For the reasons set

forth herein, we dismiss the plaintiff’s appeal.

-1- This case stems from a land-use dispute involving Ms. Preston and her

neighbors in the Town of Hopkinton; this Court described the details of that dispute

in Preston v. Zoning Board of Review of Town of Hopkinton, 154 A.3d 465 (R.I.

2017), and now recites only the facts and procedural history that relate directly to

this appeal. In 2012, Ms. Preston sought judicial review of a zoning board decision

in Superior Court as an “aggrieved party” pursuant to G.L. 1956 § 45-24-69. After

the Superior Court affirmed the zoning board’s decision, Ms. Preston sought review

of the Superior Court’s decision by way of certiorari before this Court. We quashed

the order of the Superior Court and remanded the case with directions for the

Superior Court to remand the matter to the zoning board. Preston, 154 A.3d at 466.

On remand, the zoning board vacated its decision.

Ms. Preston subsequently filed the instant action, seeking litigation expenses

pursuant to G.L. 1956 chapter 92 of title 42, the Equal Access to Justice for Small

Businesses and Individuals Act (the act). The Superior Court denied Ms. Preston

relief under the act, and she filed a notice of appeal seeking review of the Superior

Court’s judgment granting the town’s motion for summary judgment and denying

her cross-motion for summary judgment.

We do not reach the merits of Ms. Preston’s appeal because she has not

properly invoked the jurisdiction of this Court. The act provides that state and

municipal agencies shall reimburse litigation expenses incurred by a party in

-2- connection with certain substantially unjustified state or municipal actions. See

generally §§ 42-92-2, 42-92-3. This Court in Tarbox v. Zoning Board of Review of

Town of Jamestown, 142 A.3d 191 (R.I. 2016), “parsed [the] two separate avenues”

for judicial review of an agency decision involving the act, § 42-92-3(b) 1 and

§ 42-92-5.2 Tarbox, 142 A.3d at 199. In doing so, we explained that neither

authorizes a direct appeal to this Court. Id. at 198. Rather, the correct procedure for

obtaining review of a Superior Court judgment denying litigation expenses under

the act is by petition for a writ of certiorari. Id. at 199.

Because Ms. Preston filed a notice of appeal, rather than a petition for a writ

of certiorari, the matter is not properly before us. Accordingly, we dismiss the

plaintiff’s appeal and remand the record to the Superior Court.

Entered as an order of this Court this ___ 4th day of March , 2022.

By Order,

/s/ Debra A. Saunders Clerk

1 General Laws 1956 § 42-92-3(b) authorizes a court reviewing “the underlying decision of the adversary adjudication” to award fees and expenses in accordance with the act. 2 Section 42-92-5 provides, in pertinent part, “[a]ny party dissatisfied with the fee determination by the adjudicatory officer may appeal to the court having jurisdiction to review the merits of the underlying decision of the agency adversary adjudication.”

-3- STATE OF RHODE ISLAND SUPREME COURT – CLERK’S OFFICE Licht Judicial Complex 250 Benefit Street Providence, RI 02903

ORDER COVER SHEET

Title of Case Amber Preston v. Town of Hopkinton et al.

No. 2020-223-Appeal. Case Number (WC 17-470)

Date Order Filed March 4, 2022

Suttell, CJ., Goldberg, Robinson, Lynch Prata, and Justices Long, JJ.

Source of Appeal Washington County Superior Court

Judicial Officer from Lower Court Associate Justice Sarah Taft-Carter

For Plaintiff:

Gregory Massad, Esq. Kathleen Flynn, Esq Attorney(s) on Appeal For Defendants:

Per C. Vaage, Esq. James P. Marusak, Esq. Stephen J. Sypole, Esq.

SU-CMS-02B (revised June 2020)