Furtado v. Laferriere

839 A.2d 533, 2004 R.I. LEXIS 7, 2004 WL 42539

• Court: Supreme Court of Rhode Island
• Decided: January 9, 2004
• Docket: 2002-594-Appeal
• Status: Published

Opinions

OPINION

PER CURIAM.

The plaintiff, Fatima Furtado (plaintiff), appeals from a final judgment in favor of the defendant, Claire A. Laferriere (defendant). This case came before the Supreme Court for oral argument on September 24, 2003, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not summarily be decided. After hearing the arguments of counsel and examining the memoranda filed by the parties, we are of the opinion that cause has not been shown, and proceed to decide the appeal at this time. We vacate the judgment and remand the case to the Superior Court for a trial on the merits of the plaintiffs personal injury claim against the defendant.

I

Facts and Travel

This litigation arises out of a 1994 automobile accident between plaintiff and defendant. The plaintiff subsequently filed two personal injury actions against defendant. The plaintiff filed the first action against defendant on the eve of the expiration of the three-year statute of limitations for filing a personal injury claim. That suit was dismissed without prejudice for insufficient service of process pursuant to Rule 4(i) of the Superior Court Rules of Civil Procedure.

Less than one year later, plaintiff filed the instant action against defendant, and the case was assigned a different case number than the first. The defendant filed a motion for summary judgment, arguing the statute of limitations on plaintiffs personal injury claim had run. The plaintiff countered that she was entitled to the protection of G.L.1956 § 9-1-22, which is known as the savings statute, and that the statute of limitations on her personal injury claim was, therefore, tolled. The motion justice granted summary judgment in favor of defendant at a hearing held on August 9, 2001. The order for summary judgment was entered on September 5, 2001, but final judgment was not entered concurrently. The defendant later moved for final judgment on both cases. Final judgment was entered on June 27, 2002. The plaintiff appealed to this Court on July 10, 2002.

II

Propriety of the Appeal

The defendant first argues that plaintiffs appeal of July 10, 2002 should be dismissed because it was filed out of time. Pursuant to Article I, Rule 4(a) of the Supreme Court Rules of Appellate Procedure, the appealing party must file a notice of appeal within twenty days of the date of entry of judgment, order or decree. The issue, therefore, is whether the twenty-day appeal period began to run on September 5, 2001,¹ when the order for summary judgment was entered, or on June 27, 2002, when the final judgment was entered.

According to G.L.1956 § 9-24-1, an appeal may be taken only from a “final judgment, decree or order of the superior court.” Rule 58(a) of the Superior Court Rules of Civil Procedure governs the entry of final judgment, and provides:

“(1) upon a decision * * * that all relief shall be denied, the clerk * * * shall forthwith prepare, sign, and enter the judgment without awaiting any direction by the court; (2) upon a decision by the court granting other relief * * * the court shall promptly approve the form of the judgment, and the clerk shall thereupon enter it. Every judgment shall be set forth on a separate document.” (Emphasis added.)

There is a dichotomy among cases interpreting the separate document provision of Rule 58(a). In the past, this Court has allowed parties to appeal from the entry of certain orders without regard for the entry of a separate final judgment in accordance with Rule 58. For example, in McClellan v. Thompson, 114 R.I. 334, 340-41, 333 A.2d 424, 427-28 (1975), this Court held that a party must appeal from the entry of a dispositive order. See also Driscoll v. Karroo Land Co., 600 A.2d 722, 723 & n. 1 (R.I.1991); Brenner Associates, Inc. v. Rousseau, 537 A.2d 120, 122 (R.I.1988); Russell v. Kalian, 414 A.2d 462, 464 (R.I.1980).

Recent decisions of this Court, however, highlight the distinction between an entry of summary judgment and an entry of final judgment, making it clear that an appeal should be taken from the entry of a separate final judgment. In Cipolla v. Rhode Island College, Board of Governors for Higher Education, 742 A.2d , 280 n. 2 (R.I.1999), this Court noted that a “final judgment was never entered in accordance] with Rule 58 of the Superi- or Court Rules of Civil Procedure,” and the appeal from entry of summary judgment, therefore, was premature. Nevertheless, because neither party in that case challenged the propriety of the appeal, this Court considered it.

Similarly, in Norwest Mortgage, Inc. v. Masse, 799 A.2d 259, 260 (R.I.2002) (per curiam), a Superior Court motion justice entered an order dismissing a plaintiffs complaint. Final judgment was not entered until five months later. Id. The plaintiff then appealed from the later, final judgment. This Court held that, pursuant to Rule 58, the earlier entry of the dismissal order constituted an unappealable interlocutory order while the later entry of separate final judgment constituted final judgment for purposes of appeal. We held, therefore, that plaintiff timely appealed from the final judgment. Norwest Mortgage, Inc., 799 A.2d at 260, 262.

Under Norwest Mortgage, Inc., the summary judgment in this case was an interlocutory order. This Court may hear an appeal from an interlocutory order if public policy considerations warrant or if immediate action is necessary in order to avoid imminent and irreparable harm. Westinghouse Broadcasting Co. v. Dial Media, Inc., 122 R.I. 571, 410 A.2d 986, 989 (1980). Further, an interlocutory order may be considered final for purposes of appeal when, after a hearing in the Superior Court, an injunction is granted or continued, or a receiver appointed, or a sale of real or personal property ordered, or a new trial ordered or denied after a trial by jury. Section 9-24-7. Finally, Rule 54(b)² of the Superior Court Rules of Civil Procedure allows an interlocutory order to be certified as an appealable final order under certain circumstances.

The summary judgment order in this case is not an appealable interlocutory order under any common law or statutory exceptions. First, there were no overriding public policy considerations or risks of imminent and irreparable harm raised by the summary judgment order such that immediate appeal from the summary judgment order was warranted. Westinghouse Broadcasting Co., 410 A.2d at 989. A summary judgment order further is not one of the four specific types of appealable interlocutory orders listed in § 9-24-7. Finally, the motion justice did not attempt to certify the summary judgment order as final pursuant to Rule 54(b). Accordingly, the proper time to appeal started with the June 2002 entry of final judgment.

The dissent would hold that plaintiff waived her right to have final judgment entered on a separate document because she failed to move for final judgment within a reasonable period. This argument tracks language in Rule 58(b)(2)(B) of the Federal Rules of Civil Procedure, which provides that “judgment is entered for purposes of these rules * * * when 150 days have run from entry in the civil docket * * Because similar language is noticeably absent from our Rule 58, we will not imply an analogous waiver provision. Thus, unless and until Rule 58 is amended, a plaintiff may file an appeal within twenty days of the separate entry of final judgment, regardless of when such judgment is entered.

Until an amendment to the relevant rules and statutes dictates otherwise, in light of Cipolla and Norwest Mortgage, Inc. we hold that only a separate entry of final judgment in accordance with Rule 58(a) constitutes an appealable judgment for purposes of Rule 4(a). Therefore, pursuant to Rule 4(a), the twenty-day appeal period began to run when final judgment was entered on June 27, 2002. The plaintiffs appeal, therefore, is timely.

Ill

Summary Judgment

It is well established that “[w]e review a motion justice’s decision on a motion for summary judgment de novo.” Deus v. S.S. Peter & Paul Church, 820 A.2d 974, 976 (R.I.2003) (per curiam). “[A] party who opposes a motion for summary judgment candes the burden of proving by competent evidence the existence of a disputed material issue of fact and cannot rest on allegations or denials in the pleadings or on conclusions or legal opinions.” Accent Store Design, Inc. v. Marathon House, Inc., 674 A.2d 1223, 1225 (R.I.1996). “Only when a review of the evidence in the light most favorable to the nonmoving party reveals no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law, will this Court uphold the trial justice’s order granting summary judgment.” JH v. RB, 796 A.2d 447, 449 (R.I.2002) (quoting Sobanski v. Donahue, 792 A.2d 57, 59 (R.I.2002)).

The defendant moved for summary judgment in this case arguing that the statute of limitations for plaintiffs personal injury claim had expired before the instant action was filed. The plaintiff counters that she is entitled to bring her claim pursuant to § 9-1-22. Section 9-1-22 provides that:

“If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff * * * may commence a new action upon the same claim within one year after the termination.”

The plaintiffs first case clearly was not terminated by a voluntary discontinuance or by a final judgment upon the merits. The issue, therefore, is whether plaintiffs initial action was terminated by a dismissal “for neglect to prosecute the action.” Id. Because the plaintiffs initial claim was dismissed for insufficient service of process pursuant to Rule 4(Z) of the Superior Court Rules of Civil Procedure, and not for lack of prosecution under Rule 41(b) of the Superior Court Rules of Civil Procedure, we hold that plaintiffs claim is protected by the savings statute.

When comparing Rules 41(b)(1) and 4(Z) with the language of § 9-1-22,³ it is apparent that dismissal pursuant to Rule 4(Z) does not constitute dismissal for neglect to prosecute, which is addressed only in Rule 41(b)(1). Rule 41(b)(1) provides a mechanism for the dismissal of a case for lack of prosecution. Rule 41(b)(1) allows the court, in its discretion, to “dismiss any action for lack of prosecution where the action has been pending for more than 5 years, or, at any time, for failure of the plaintiff to comply with these rules or to proceed when the action is reached for trial.” Rule 4ffl authorizes dismissal of a case for failure to serve process within 120 days of commencement of a suit. This Court has made clear that these two rules constitute separate grounds for dismissal, and that when Rule 4(J) specifically applies, the more general provisions of Rule 41(b)(1) do not apply. Lindia v. Nobles, 760 A.2d 1244, 1245-46 (R.I.2000) (per curiam); Jackson v. Medical Coaches, 734 A.2d 502, 506-07 (R.I.1999). The Superior Court applied Rule 4(Z), and not Rule 41(b), to dismiss plaintiffs initial action. Because plaintiffs first case was not dismissed for neglect to prosecute pursuant to Rule 41(b), the provisions of § 9-1-22 apply to save her current claim from the expiration of the statute of limitations.

According to defendant, plaintiff, in the first case, inexcusably neglected to effectuate service of process pursuant Rule 4(Z). Thus, defendant argues, plaintiffs original case was dismissed for neglect to prosecute as the phrase is contemplated under § 9-1-22. However, any fault on the part of plaintiff in serving process in the first case is irrelevant for determining plaintiffs entitlement to the savings statute here because the first case was specifically dismissed pursuant to Rule 4(l). As discussed supra, neglect to prosecute is only addressed in Rule 41, and a motion justice is prohibited from dismissing a case for insufficient service of process under the more general provisions of Rule 41. See Lindia, 760 A.2d at 1245-46.

Even if the motion justice could have dismissed the initial case under Rule 41 for insufficient service of process, such a dismissal would not constitute a dismissal for lack of prosecution under that Rule. Rule 41(b)(1) specifically defines lack of prosecution as an instance in which “the action has been pending for more than 5 years.” The fact that Rule 41(b)(1) also authorizes dismissal for “failure of the plaintiff to comply with [court] rules” does not expand the meaning of “lack of prosecution” to include dismissal for insufficient service of process. The wording of Rule 41(b)(2) reinforces this view. Rule 41(b)(2) states that, upon motion of a defendant, the court may “dismiss any action for failure of the plaintiff to comply with these rules or any order of court or for lack of prosecution as provided in paragraph (1) of this subdivision.” The word “or” separates the two grounds for dismissal under Ride 41(b)(2): “lack of prosecution where the action has been pending for more than 5 years” and “failure of the plaintiff to comply with these rules or any order of court.” This indicates that dismissal for failure to comply with court rules does not constitute “lack of prosecution” under any subsection of Rule 41.

In addition, plaintiffs original case was dismissed without prejudice. It is elementary that a dismissal without prejudice “prevent[s] the decree of dismissal from operating as a bar to a subsequent suit.” Black’s La,w Dictionary 421 (5th ed. 1979). Moreover, this Court previously has acknowledged that a dismissal granted “without prejudice” because of insufficient service of process does not preclude a plaintiff from refiling upon the same claim. International Brotherhood of Police Officers, Local No. 302 v. Town of Portsmouth, 506 A.2d 540, 542 (R.I.1986). The plaintiff filed her initial action on the eve of the expiration of the statute of limitations. Consequently, the termination of that case precluded the initiation of a subsequent action unless that action were saved under § 9-1-22. By dismissing the first action without prejudice, it is apparent the court intended to dismiss the case in a manner that would provide protection under the savings statute. By denying plaintiff the protection of the savings statute, the motion justice in the second case effectively reassessed the ruling in the first case and determined that dismissal should have been with prejudice.

Finally, we acknowledge the dissent’s argument that a plaintiff who inexcusably neglects to serve process should not be entitled to the protection of the savings statute. This is not, however, to indicate concurrence with dissent’s argument. Because we hesitate to deprive a plaintiff of his or her day in court, until the General Assembly amends § 9-1-22 to indicate clearly its concurrence with the dissent’s argument we hold that § 9-1-22 does apply to save the claim of a party whose case is dismissed under Rule 4(£). Thus, because plaintiffs original case was not dismissed for lack of prosecution, and was further dismissed without prejudice, the savings statute applies to plaintiffs current suit.

Conclusion

For the reasons stated herein, we reverse the judgment of the Superior Court. The record shall be remanded to the Superior Court for a trial on the merits of the plaintiffs personal injury claim against the defendant.

1 . In his brief, defendant argues that the twenty-day appeal period began on August 9, 2001, which defendant refers to in her memorandum as the date of “entry of the dispositive order granting [defendant’s] summary judgment motion.” August 9, 2001, however, is merely the date on which the motion justice granted summary judgment. The order for summary judgment was actually entered on September 5, 2001.

2 . Rule 54(b) of the Superior Court Rules of Civil Procedure provides in relevant part that:

“When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties, only upon an express determination that there is no just reason for delay and upon express direction for the entry of judgment.”

3 . General Laws 1956 § 9-1-22 refers to "neglect” to prosecute the action. Although Rule 41(b) of the Superior Court Rules of Civil Procedure refers to "lack of prosecution,” we are satisfied these two terms are functionally equivalent in this context and use the phrases interchangeably.