North Farm Home Owners Association, Inc. v. Bristol County Water Authority

• Court: Supreme Court of Rhode Island
• Decided: June 14, 2024
• Docket: 2022-0167-Appeal.
• Status: Published

Opinion

Supreme Court

No. 2022-167-Appeal. (PC 17-4623)

North Farm Home Owners : Association, Inc.

v. :

Bristol County Water Authority. :

NOTICE: This opinion is subject to formal revision before publication in the Rhode Island Reporter. Readers are requested to notify the Opinion Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence, Rhode Island 02903, at Telephone (401) 222-3258 or Email opinionanalyst@courts.ri.gov of any typographical or other formal errors in order that corrections may be made before the opinion is published. Supreme Court

Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.

OPINION

Justice Lynch Prata, for the Court. The plaintiff, North Farm Home

Owners Association, Inc. (North Farm), appeals from a judgment of the Superior

Court entering partial summary judgment on counts three and four of its third

amended complaint in favor of the defendant, the Bristol County Water Authority

(the BCWA). North Farm argues that the hearing justice erred because: the parties

formed a valid contract by means of their 1993–1995 correspondence; the hearing

justice ignored the allegations in count four that the 2019 pass-through rate was

illegal; and the hearing justice denied North Farm’s motion to amend without a

finding of prejudice. This appeal first came before the Court pursuant to an order

directing the parties to appear and show cause why the issues raised in this appeal

should not be summarily decided. After hearing the arguments of counsel and

-1- examining the memoranda filed by the parties, we concluded that cause had been

shown, and we assigned this case to the regular calendar for further briefing and

argument. We specifically ordered the parties to brief the issues pertaining to count

four of North Farm’s third amended complaint, including without limitation the

remedies sought pursuant to count four. For the reasons set forth herein, we affirm

the judgment of the Superior Court.

Facts and Travel

The relevant facts in this matter are undisputed. The North Farm

Condominium Complex is a multi-building condominium complex located in

Bristol, Rhode Island, consisting of over fifty buildings with several units per

building. The complex was developed in several different phases between 1973 and

1989. During development, several easements were granted to the BCWA, a public

utility bearing the obligation to provide water to residential and commercial

customers in Bristol County. The purpose of the easements was “to construct on,

lay in, repair on, patrol, maintain, relay and replace water pipelines * * * for use in

connection with the transmission and distribution of water, in, along, over, and under

those certain strips of land situated within the easement lines * * *.” The easements

were granted “in perpetuity,” and the BCWA’s pipelines were to remain the personal

property of the BCWA.

-2- From approximately 1975 to 1995, the BCWA measured water service to each

condominium unit individually by means of meters located in pits next to each

building in the complex. Every condominium unit owner was charged a flat service

charge and a commodity charge. The service charge was designed to recover fixed

expenses incurred by the BCWA, and the commodity charge was the cost of the

water actually consumed. By contrast, under a master meter system, the property

owner, rather than each unit owner, is charged using a single master meter to

measure water consumption. The master meter system can result in substantial

savings because there is only one service charge that is divided among the unit

owners. Accordingly, from 1993 to 1995, representatives of the parties exchanged

a series of letters in which they discussed converting the individual meter system to

a centralized, master meter system. This correspondence—and whether it

constitutes a valid contract—is at the heart of this dispute.

The 1993–1995 correspondence began on July 13, 1993, when the BCWA

sent a letter to North Farm (the July 1993 letter).1 The July 1993 letter informed

North Farm that a number of its water meter vaults could be classified as “Permit

Required Confined Space[s]” under the new Occupational Safety and Health

Administration (OSHA) confined-space regulations. Pursuant to the new OSHA

1 The 1993–1995 correspondence was carried out by representatives of the parties. For ease of reference, we will refer to their correspondence as if it were being sent and received by North Farm and the BCWA. -3- regulations, permits were required to enter “Permit Required Confined Spaces,” and

these spaces were subject to several new restrictions: Warning signs were required

to be posted at access points; an attendant was required to stand watch to monitor

for hazards; and the entrants and attendants were required to be trained on the space’s

hazards. Accordingly, the BCWA informed North Farm that “as [the] owners of the

[water meter] vaults, [it] has considerable responsibility under this law.” It noted

that there was previously a plan to convert to a master meter system and that “[t]here

[was] a[n] economic advantage to such a plan through reduced service charges and

a possible lower average water cost.” The BCWA thus requested that North Farm

call to discuss a master meter system.

On August 27, 1993, the BCWA sent a follow-up letter (the August 1993

letter) containing information on North Farm’s water usage. On the enclosed sheet,

the BCWA articulated the difference in water costs that North Farm incurred the

previous year using individual meters versus what its water costs would be if it had

converted to a single master meter. The BCWA indicated that there would have

been $33,845.37 in savings. There was no further written correspondence until April

29, 1994, when North Farm sent a letter (the April 1994 letter) requesting

documentation. North Farm acknowledged that it had been considering the

possibility of a master meter system but noted that it had become “apparent * * *

that formal documentation from the BCWA is required concerning the future

-4- responsibility for water main maintenance, as well as for the handling and status of

the existing 280 some-odd water meters on the property should we opt for central

metering.” North Farm thus asked the BCWA to develop and forward the requested

information.

On May 11, 1994, the BCWA responded by letter (the May 1994 letter) that

its “position as to maintenance of water mains at North Farm if a new master meter

is installed would be to continue the present maintenance repair and/or replacement

of water mains within the easement granted to [the] BCWA when North Farm was

built.” The BCWA noted that all water pipes within the easement would be

maintained by the BCWA but that all piping outside of the easement would be

maintained by North Farm. Lastly, the BCWA asserted that it would “abandon or

contribute to” North Farm any remaining meters then installed at North Farm, but

that “[a]ll costs associated with the installation of the master meter would be borne

by [North Farm].”

On March 31, 1994, North Farm sent a letter (the March 1994 letter) to John

Pagliarini, Tax Assessor for the Town of Bristol, notifying him of the project within

North Farm concerning “the possible development of a centralized water metering

system * * *.” On June 6, 1994, the BCWA sent another letter to North Farm (the

June 1994 letter) containing an updated water analysis. The enclosed documents

contained a handwritten calculation of the potential savings of converting to a master

-5- meter system. However, there was no further correspondence until February of the

following year.

On February 22, 1995, the BCWA sent North Farm a letter (the February 1995

letter) noting that the parties had been “discussing [North Farm’s] plans for solving

the problems relating to the existing North Farm meter vaults for more than a year

without yet arriving at a solution[,]” and that North Farm had “indicated that [it

would] propose to install a ventilated master-meter vault, located near the guard

house on the main entry road.” The BCWA requested that North Farm “promptly

finalize [its] plans and present [its] detailed proposal to us[,]” because the present

situation was dangerous to the BCWA’s employees.

On April 28, 1995, North Farm sent a letter to the BCWA advising that “the

North Farm Board of Governors has unanimously approved moving forward with

the plan to install a Centralized Water Metering System, and the establishment of a

single billing arrangement for the residential water service and consumption.” It

further stated that there were certain “specific and agreed upon arrangements” that

were “[e]ssential to this conversion plan.” These arrangements were enumerated as

follows: The individual meters would be abandoned in place and returned to the

BCWA should maintenance require their removal; the water main facilities within

North Farm would “continue to be owned and maintained by the BCWA”; North

Farm would be responsible for the fire hydrants and fire service charges; the

-6- installation of the master meter would be “in accordance with BCWA standards and

specifications and final approval”; master meter service would be metered “through

a single 6" meter [and] * * * [b]illing would be based on the single 6" metered

service”; the BCWA would assist North Farm in transitioning its residents’ billing

services; and North Farm would “reimburse [the] BCWA for the costs associated

with programming and special mailings.”

A letter dated May 31, 1995 (the May 1995 letter), and a draft letter dated

“May , 1995” (the May 1995 draft letter) were written by North Farm and

subsequently distributed to the BCWA. The letters were addressed to the North

Farm “Residents and Homeowners[,]” notifying them that the planning phase of the

master meter project was over and informing them of the new billing system. The

letters stated that the new master meter system would produce “savings of over

$30,000 in every year from the conversion point forward.” Subsequently, the

BCWA received the master meter pit drawings, North Farm paid approximately

$75,000 for the installation of a master meter system, and the BCWA began billing

North Farm through a master meter.

This arrangement continued without issue until 2014, when a water pipe broke

at North Farm and a dispute arose over the responsibility for its repair. At the time

the BCWA was unaware of the original easements and believed that it was not

responsible for fixing the break because the property owners in a master meter

-7- system are typically responsible for maintaining the water pipes downstream of the

master meter. North Farm informed the BCWA that it owned the water mains and

water systems in accordance with the easements in early 2016. The BCWA

subsequently informed North Farm that either the parties could agree to transfer title

of the water systems back to North Farm, or the BCWA would have to revert to an

individual meter system in order to recover the costs associated with maintaining

and repairing the pipes.

On September 28, 2017, North Farm initiated this action by filing a four-count

complaint against the BCWA alleging that North Farm and the BCWA had formed

a contract “[i]n or about 1994” to install a single, central meter system and that the

BCWA breached this 1994 agreement by stating its intent to terminate the central

metering system and by rejecting its responsibility for repairing the water main

breaks. Count one sought damages for the BCWA’s breach of its obligation to repair

the water pipes it owned under the easement; count two sought restitution damages

for the cost of repairs to the water pipes in the easement; count three sought

injunctive relief for the BCWA’s unilateral termination of the central metering

system that was established and installed by mutual agreement in 1994; and count

four sought, in the alternative, compensatory damages for the BCWA’s repudiation

and anticipatory material breach of the 1994 agreement. Subsequently, North Farm

sought and obtained preliminary injunctive relief “restrain[ing] and enjoin[ing] [the

-8- BCWA] from terminating the central water metering system at North Farm[,]” and

North Farm filed its first amended complaint, which consolidated counts three and

four into a single count: count three. In response, the BCWA asserted several

counterclaims relating to North Farm’s purported encroachment onto its easements.

One and a half years after North Farm filed suit, the BCWA board of directors

unanimously adopted new rates effective March 1, 2019. One new rate, referred to

as the “2019 pass-through rate,” was intended to address situations, like its

arrangement with North Farm, in which the customer used a master meter, but the

BCWA maintained responsibility for the maintenance of the customer’s pipes. The

new rate provided that:

“For any meter that measures water that passes through the meter and is delivered to more than one premise, and where the BCWA maintains the distribution pipes downstream of that meter, the BCWA will charge the customer a Customer Service Charge equal to the number of premises that receive water multiplied by the customer service charge for a 5/8ʺ x 3/4" meter.”

On April 29, 2019, the BCWA informed North Farm that it had adopted the 2019

pass-through rate. The letter requested that North Farm confirm the number of units

served by the master meter “[s]ince this new fee will apply to North Farm * * *.”

On April 16, 2019, North Farm was billed $40,008.37, including a service charge of

$24,858, based on the new rate. The 2019 pass-through rate has never been applied

to any BCWA customer other than North Farm.

-9- On August 5, 2019, North Farm filed its second amended complaint to add an

additional count, count four, seeking remedies based upon the new service charge.

Count four asserted a claim “for remedies against [the] BCWA sextupling the service

charge for North Farm to 300 service charges for 300 units at North Farm, which do

not have meters and are not customers of [the] BCWA, in breach of the 1995 contract

for a single master meter.” 2 More specifically, count four seeks injunctive relief

prohibiting the BCWA from terminating the metering system based on North Farm’s

nonpayment of the excess service charge, which North Farm alleges violates the

1995 master meter contract, is “discriminatory and unlawful[,]” and violates the

court’s preliminary injunction order. Count four further seeks compensatory

damages, and a declaratory judgment, declaring that “the 1995 agreement between

North Farm and [the] BCWA for a master water meter is enforceable as a contract

* * *.” 3

On February 5, 2021, North Farm filed a motion for leave to amend its

complaint to add an additional count. The hearing justice denied the motion for

2 After North Farm filed its second amended complaint, it also filed several third- party claims for indemnification and contribution against numerous construction, insurance, and utility companies as well as the Town of Bristol. This sparked a flurry of cross-claims. However, counts three and four were severed from all other claims, counterclaims, cross-claims, and third-party claims in this action. Therefore, there are several remaining claims between the parties that are not the subject of the instant appeal. 3 Count four additionally sought several more declarations concerning the terms of the purported contract. - 10 - leave to amend without prejudice, reasoning that it was in his discretion to do so and

that denying the motion would allow the case to move forward. Subsequently, the

BCWA filed a motion for summary judgment on counts three and four of North

Farm’s second amended complaint. On September 14, 2021, North Farm filed its

third amended complaint, deleting two of the original four water main breaks from

counts one and two. Nevertheless, counts three and four in both amended complaints

are identical; therefore, the hearing justice proceeded to hear the BCWA’s motion

for summary judgment as if it were addressed to North Farm’s third amended

complaint.

The hearing justice granted the BCWA’s motion in a written decision,

concluding that the BCWA was entitled to summary judgment on counts three and

four because neither the BCWA nor North Farm ever made an offer containing the

material terms of the purported contract. The hearing justice reviewed the various

letters between the BCWA and North Farm and found that none of the letters

contained language indicating that they were offers but, instead, contained language

indicating that the letters were preliminary negotiations. The hearing justice further

determined that the omission of the purported material terms—namely that the

BCWA was prohibited from reinstalling individual meters at North Farm and from

changing the master meter service charge—also indicated a willingness to negotiate,

but not to make an offer to enter into a binding contract. Even assuming that there

- 11 - was an offer, the hearing justice concluded that there was no evidence of acceptance

because the BCWA’s mere silence was not enough to show acceptance in an overt,

objective manner. Because there was no offer, the hearing justice concluded, no

contract existed between the parties and, thus, summary judgment could enter on

counts three and four of North Farm’s third amended complaint.

After the hearing justice granted its motion for summary judgment, the

BCWA filed a motion for entry of partial final judgment on counts three and four

pursuant to Rule 54(b) of the Superior Court Rules of Civil Procedure. Finding that

there was no just reason for delay, the hearing justice entered final judgment on

counts three and four of North Farm’s third amended complaint. Thereafter, North

Farm filed a timely notice of appeal.

Standard of Review

“This Court reviews a decision granting a party’s motion for summary

judgment de novo.” Nissensohn v. CharterCARE Home Health Services, 306 A.3d

1026, 1033 (R.I. 2024) (quoting Citizens Bank, N.A. v. Palermo, 247 A.3d 131, 133

(R.I. 2021)). “We assess the matter ‘from the vantage point of the trial justice,

viewing the evidence in the light most favorable to the nonmoving party, and if we

conclude that there are no genuine issues of material fact and that the moving party

is entitled to judgment as a matter of law, we will affirm.’” Id. (brackets and

deletions omitted) (quoting Citizens Bank, N.A., 247 A.3d at 133). “Although

- 12 - summary judgment is recognized as an extreme remedy, to avoid summary judgment

the burden is on the nonmoving party to produce competent evidence that proves the

existence of a disputed issue of material fact.” Id. (deletion omitted) (quoting

Citizens Bank, N.A., 247 A.3d at 133).

Discussion

Count Three

North Farm argues that the hearing justice erred in granting summary

judgment on count three of its third amended complaint because it provided

sufficient evidence to prove the “prima facie” elements of a contract. North Farm

argues that it entered into a “master meter contract” with the BCWA through a series

of correspondence between 1993 and 1995. North Farm submits that the July 1993,

August 1993, March 1994, May 1994, June 1994, and February 1995 letters were

offers. In particular, North Farm states that the August 1993 letter “was an offer

that, if North Farm were willing to incur the costs of converting to a single master

meter, North Farm would realize savings of tens of thousands of dollars per year on

water bills,” due to “paying just a single service charge for a 6-inch master meter[,]

rather than 280+ service charges for 5/8-inch residential meters for individual units.”

As such, North Farm maintains that it manifested its acceptance to these offers by

its April 1995 letter. If, however, its April 1995 letter is considered a counteroffer,

- 13 - then North Farm asserts that the BCWA accepted its counteroffer by “inaction * * *

which manifested acceptance[,]” and by performing the master meter contract. 4

In response, the BCWA argues that this Court need not look further than the

collection of letters that North Farm alleges are offers to determine that no contract

was formed. The BCWA asserts that the letters do not show the parties’ mutual

4 Although North Farm conceded that the material facts are undisputed and that there are sufficient facts in the record to support its claim for breach of contract, North Farm appears to argue in the alternative that the formation of a contract is an issue of fact to be decided by the factfinder and that the hearing justice improperly granted summary judgment when there were disputed factual issues. However, North Farm fails to cite to any controlling authority that supports this argument, citing instead to Smith v. Boyd, 553 A.2d 131 (R.I. 1989), in which we held that the party alleging the existence of an oral contract, when the parties understood a written instrument would be executed, will bear the burden of proving an objective intent to be bound before the execution of the written contract, and Filippi v. Filippi, 818 A.2d 608 (R.I. 2003), in which we held that the trial justice erred in denying a motion for a judgment as a matter of law because plaintiffs failed to present clear and convincing evidence of an oral contract for testamentary disposition. Smith, 553 A.2d at 134; Filippi, 818 A.2d at 625. At oral argument, North Farm made a last-ditch effort to persuade the Court of its argument contending that the Filippi decision departed from this Court’s pre-Filippi precedent which purportedly held that the existence of a contract was a matter of fact. Given that North Farm has failed to identify this purported precedent, we decline to depart from our long line of cases holding that the existence of a contract is a question of law. See, e.g., Ballard v. SVF Foundation, 181 A.3d 27, 37 (R.I. 2018) (rejecting plaintiffs’ argument that summary judgment was inappropriate on the issue of whether a contract existed because the “existence of a contract, of course, is a matter of law”); Lerner v. Ursillo, 765 A.2d 1212, 1218 (R.I. 2001) (holding that plaintiffs’ breach-of-contract claim could not survive summary judgment because “[t]his argument might have ostensible merit if the determination of the existence of the oral agreement was a question of fact; however, its determination was a question of law for the trial justice”). We stress North Farm’s obligation under Article I, Rule 16(a) of the Supreme Court Rules of Appellate Procedure to fully develop its arguments on appeal. See Terzian v. Lombardi, 180 A.3d 555, 557-58 (R.I. 2018). - 14 - assent to the material contract terms by means of offer and acceptance because even

assuming the letters were offers, North Farm has submitted no evidence displaying

the BCWA’s acceptance of the purported perpetual duration of the contract.

“[T]he determination of whether a contract exists is a question of law that this

Court reviews de novo.” Coccoli v. Town of Scituate Town Council, 184 A.3d 1113,

1118 (R.I. 2018) (quoting Nonnenmacher v. City of Warwick, 722 A.2d 1199, 1202

(R.I. 1999)). “[W]e employ traditional contract theory to ‘determine the existence

of an enforceable contract.’” Andoscia v. Town of North Smithfield, 159 A.3d 79, 82

(R.I. 2017) (brackets omitted) (quoting Haviland v. Simmons, 45 A.3d 1246, 1257

(R.I. 2012)). “Under traditional contract theory, an offer and acceptance are

indispensable to contract formation, and without such assent a contract is not

formed.” Smith v. Boyd, 553 A.2d 131, 133 (R.I. 1989). Therefore, to form a valid

contract, “[e]ach party must have and manifest an objective intent to be bound by

the agreement.” Opella v. Opella, 896 A.2d 714, 720 (R.I. 2006). When negotiating

a contract “the parties may express their assent piecemeal, agreeing upon individual

terms as the negotiation proceeds. These expressions are merely tentative and are

inoperative in themselves; there is no contract until the parties close their negotiation

and express assent to all the terms of the transaction together.” 1 Corbin on

Contracts § 2.10 at 213 (2018) (emphasis added).

- 15 - Although the 1993–1995 correspondence demonstrates that there was an

understanding between the parties that North Farm would convert to a master meter

system, this understanding is not sufficient to create a binding contract for the

permanent conversion from an individual meter system to a master meter system.

See Cote v. Aiello, 148 A.3d 537, 545-46 (R.I. 2016) (holding that parties’ mutual

understanding was insufficient to create a contract where there was no mutual assent

on essential terms). Importantly, North Farm’s breach-of-contract claim is not

premised upon the BCWA’s failure to convert to a master meter system in the 1990s.

Instead, North Farm is alleging that the BCWA breached a purported contractual

obligation to maintain the master meter system at the North Farm Condominium

Complex in perpetuity.

The 1993–1995 letters are devoid of language to indicate that either party

intended the master meter conversion to be permanent. Even the April 28, 1995

letter—which contains the most detail regarding the plan to convert the metering

system—is utterly silent on the issue of duration. The letter clarifies that the central

meter would be installed in accordance with the BCWA’s standards and subject to

the BCWA approval and that centralized service would be metered through a single

6ʺ meter, but nowhere does the letter state that the master meter system would be

permanent. Accordingly, neither party manifested its assent to the material terms of

the transaction—i.e. that the BCWA’s obligation to maintain the master meter

- 16 - system would continue in perpetuity and that the BCWA would require North

Farm’s consent to return to an individual meter system. “To form a valid contract,

there must be ‘competent parties, subject matter, a legal consideration, mutuality of

agreement, and mutuality of obligation.’” Fogarty v. Palumbo, 163 A.3d 526, 538

(R.I. 2017) (quoting Rhode Island Five v. Medical Associates of Bristol County, Inc.,

668 A.2d 1250, 1253 (R.I. 1996)). Therefore, these letters do not establish the

existence of a contract as matter of law. See id. at 539 (holding there was no contract

as a matter of law when writings demonstrated that parties had not yet reached

agreement on material terms).

North Farm nevertheless contends that the parties’ assent to the perpetual

duration of the master meter contract can be found in the May 1995 draft letter and

the May 1995 letter, which were in the BCWA’s possession, but were addressed to

the residents of North Farm. 5 It asserts that, because these letters state that the master

meter plan “produces savings of over $30,000 in every year from the conversion

point forward[,]” the BCWA agreed to maintain the master meter system every year

from the conversion point forward. North Farm asserts that the BCWA expressed

5 North Farm submitted no evidence regarding when or how the letter came to be in the BCWA’s possession. However, viewing the facts in the light most favorable to North Farm, in accordance with the appropriate standard on a motion for summary judgment, see Nissensohn v. CharterCARE Home Health Services, 306 A.3d 1026, 1033 (R.I. 2024), the hearing justice assumed for the sake of the motion that the BCWA was in receipt of the May 1995 letter and the May 1995 draft letter. - 17 - its assent to this term by failing to object to it and by “fully perform[ing] the master

meter contract for the ensuing twenty-two years, without dispute.”

In general, silence does not constitute acceptance unless the course of dealings

between the parties makes it reasonable for the offeror to construe silence as

acceptance. See Kenney Manufacturing Co. v. Starkweather & Shepley, Inc., 643

A.2d 203, 208 (R.I. 1994). North Farm has offered no explanation as to how the

parties’ prior dealings established a pattern whereby the BCWA’s silence with

respect to two letters—addressed to the residents of North Farm—should be

reasonably construed as acceptance. See id. at 209. Therefore, the BCWA’s failure

to object to the May 1995 letters does not show its assent. Moreover, although the

BCWA received North Farm’s plans for conversion to a master meter and aided in

the billing transition, these actions do not display its assent to permanently maintain

the master meter system “from the conversion point forward.” These actions simply

reflect the understanding between the parties that North Farm would convert to a

master meter system. Accordingly, North Farm failed to produce sufficient evidence

that a valid contract for the material terms existed, and the hearing justice’s grant of

summary judgment on count three of the third amended complaint was proper.

Given that there was no valid contract, we need not address the parties’ remaining

arguments regarding the statute of frauds and the authority of the BCWA’s

representatives to enter a contract.

- 18 - North Farm alternatively asserts that a contract arose because the relationship

between a public utility and its customers is contractual in nature, not terminable at

will, and lasts “for the duration of the customer/utility relationship.” It contends that

an obligation to mutually agree on the type of water meter is implied by Rules 9(a)

and (c) of the BCWA Rules and Regulations Governing Rendering of Service that

governed the rendering of water services in 1993. This argument finds no support

in the plain language of the rules and regulations. See Singer v. Singer, 692 A.2d

691, 692 (R.I. 1997) (mem.) (“When contract language is clear and unambiguous,

words contained therein will be given their usual and ordinary meaning and the

parties will be bound by such meaning.”). Rules 9(a) and (c) provide:

“(a) The [BCWA], after discussion with the Customer or a representative of the Customer, shall specify the type and size of meter to be installed.

“***

“(c) The Customer shall provide, at the Customer’s expense, a readily accessible and protected location for the installation of a meter at such a point as will control the entire supply to the premises. This location must be acceptable to the [BCWA] as most convenient for its service so that the meter may be easily examined, read or removed. The Customer shall also provide suitable pipe connections and the necessary valves and other fittings as may be designated by the [BCWA] for the proper installation and protection of the meter.”

Accordingly, even assuming that these rules were the terms of a contractual

relationship between the parties, pursuant to the plain language of the rules, mutual - 19 - assent was not necessary for the BCWA to install a certain size or type of meter. See

Singer, 692 A.2d at 692. Therefore, North Farm’s argument that a contract to

perpetually maintain a master meter system at the North Farm Condominium

Complex arose by virtue of the customer/utility relationship is unavailing.

Count Four

North Farm argues that the hearing justice improperly granted summary

judgment on count four because he did not analyze North Farm’s allegation that the

2019 pass-through rate is unlawful and unenforceable. North Farm asserts that

although count four alleges that the 2019 pass-through rate breached the alleged

master meter contract, count four also alleges that the 2019 pass-through rate

unlawfully targeted North Farm. North Farm asserts that count four may be read as

requesting relief stemming from this allegation because paragraph one of its demand

for relief seeks injunctive relief prohibiting the BCWA from shutting off the water

supply and contains no limiting language that bases this request solely on the

breach-of-contract claim. Thus, North Farm maintains that the 2019 pass-through

rate discriminates against it in violation of the requirement that public utilities be

“fair and reasonable” under Rhode Island law.

In response, the BCWA argues that summary judgment was proper as to count

four because count four is based entirely on breach of contract. Given that there was

no contract, it asserts that there could be no breach. The BCWA notes that the

- 20 - heading under count four specifically seeks “remedies” against the BCWA for

“breach of the 1995 contract for a single master meter.” The BCWA acknowledges

that North Farm alleged that the 2019 pass-through rate was illegal but notes that

North Farm has brought forth no evidence to support this allegation. As such, the

BCWA maintains that the hearing justice properly granted summary judgment on

count four of North Farm’s third amended complaint.

Rule 8(a) of the Superior Court Rules of Civil Procedure states, in pertinent

part, that “[a] pleading which sets forth a claim for relief * * * shall contain: (1) [a]

short and plain statement of the claim showing that the pleader is entitled to relief;

and (2) [a] demand for judgment for the relief the pleader seeks.” Super. R. Civ. P.

8(a). Under our liberal pleading standard, a “pleading need not include ‘the ultimate

facts that must be proven in order to succeed on the complaint or to set out the precise

legal theory upon which his or her claim is based.’” Gardner v. Baird, 871 A.2d 949,

953 (R.I. 2005) (brackets and deletion omitted) (quoting Haley v. Town of Lincoln,

611 A.2d 845, 848 (R.I. 1992)). “That is not to say, however, that the drafter of a

complaint has no responsibilities with respect to providing some degree of clarity as

to what is alleged; due process considerations are implicated * * *.” Hyatt v. Village

House Convalescent Home, Inc., 880 A.2d 821, 824 (R.I. 2005). Thus, “we require

that ‘the complaint give the opposing party fair and adequate notice of the type of

- 21 - claim being asserted.’” Id. (quoting Butera v. Boucher, 798 A.2d 340, 353 (R.I.

2002)).

Count four of the third amended complaint is entitled “Count IV (for remedies

against [the] BCWA sextupling the service charge for North Farm to 300 service

charges for 300 units at North Farm, which do not have meters and are not customers

of [the] BCWA, in breach of the 1995 contract for a single master meter[.]”

(emphasis added). Count four further alleges that the 2019 pass-through rate

“violates the 1995 master meter contract between North Farm and [the] BCWA.”

To that end, count four seeks injunctive relief prohibiting the BCWA from ceasing

water services due to nonpayment of the 2019 pass-through rate, compensatory

damages, and a declaratory judgment stating that “the 1995 agreement between

North Farm and [the] BCWA for a master water meter is enforceable as a contract

* * *.” Therefore, count four clearly asserts a claim for relief based upon the

Uniform Declaratory Judgments Act, G.L. 1956 chapter 30 of title 9, and breach of

contract.

Nevertheless, count four also alleges that “[i]n addition to violating the 1995

master meter contract, [the] BCWA’s new service charges to North Farm are invalid

and unlawful for other reasons as well.” The amended complaint proceeds to allege

that the “BCWA is evading the cost of purchasing and installing 300 replacement

meters, and denying North Farm’s unit owners the benefit of precise measurement

- 22 - of their personal water consumption and costs therefor, which is discriminatory and

unlawful[,]” and that “North Farm’s unit owners are almost entirely 65 or older, but

the senior discount is denied to them under [the] BCWA’s new regulation, which is

discriminatory.”

There is no language in the amended complaint that expounds on North

Farm’s vague allegation that the 2019 pass-through rate is “discriminatory and

unlawful” such that the BCWA was on notice of the type of claim that North Farm

was asserting. See Hyatt, 880 A.2d at 824. Due process requires that North Farm’s

complaint give the BCWA “fair and adequate notice of the type of claim being

asserted[,]” and North Farm’s vague allegation that the 2019 pass-through rate is

“invalid,” “unlawful,” “improper,” and “discriminatory” simply misses the mark.

See id. (quoting Butera, 798 A.2d at 353); Konar v. PFL Life Insurance Company,

840 A.2d 1115, 1118 (R.I. 2004). Furthermore, a complaint that requires the BCWA

to read between the lines of North Farm’s breach-of-contract/declaratory judgment

claims in order to find North Farm’s hidden, “illegality” claim does not give the

BCWA fair and adequate notice of such a claim. Accordingly, count four of the

amended complaint did not properly plead any basis for granting injunctive or

compensatory relief due to unlawful discrimination. Therefore, the only properly

pled claim contained within count four was North Farm’s claim for declaratory,

injunctive, and compensatory relief based upon the BCWA’s breach of the purported

- 23 - master meter contract, and the hearing justice’s grant of summary judgment as to

count four due to North Farm’s failure to prove the existence of a contract was

appropriate.

North Farm further argues that summary judgment on count four was

improper due to count four’s catch-all demand for “such other relief as may be

available by law or equity.” Therefore, it asserts, under Rule 54(c) of the Superior

Court Rules of Civil Procedure, summary judgment should have been based upon

the evidence submitted in support of its claim rather than upon any alleged defect in

the pleadings. In pertinent part, Rule 54(c) provides that, “[e]xcept as to a party

against whom a judgment is entered by default, every final judgment shall grant the

relief to which the party in whose favor it is rendered is entitled even if the party has

not demanded such relief in the party’s pleadings.” Super. R. Civ. P. 54(c). As such,

the judgment “in an action wherein a party is successful in establishing a claim

should include the relief to which the party is entitled.” Bandoni v. State, 715 A.2d

580, 598 n.16 (R.I. 1998). However, Rule 54(c) does not permit a plaintiff to “obtain

relief not demanded where, although he may be entitled to it, the propriety of such

relief has not been litigated.” Robert B. Kent et al., Rhode Island Civil Procedure §

54:4 (February 2024 Update).

North Farm was not “successful in establishing” its so-called discrimination

claim before the hearing justice. See Bandoni, 715 A.2d at 598 n.16 (emphasis

- 24 - omitted). In the Superior Court, North Farm relied on In re Woonsocket Water

Department, 538 A.2d 1011 (R.I. 1988), and Bristol County Water Company v.

Harsch, 120 R.I. 223, 386 A.2d 1103 (1978), to support its proposition that it was

entitled to injunctive relief or compensatory damages due to the BCWA’s purported

unlawful discrimination. These cases were judicial reviews of decisions by the

Public Utilities Commission pursuant to G.L. 1956 § 39-5-1, wherein we noted that

although the Public Utilities Commission is not bound by a particular formula in

setting rates for utilities, the rate must be “fair and reasonable.” In re Woonsocket

Water Department, 538 A.2d at 1013-14; Harsch, 120 R.I. at 232, 386 A.2d at 1108.

Neither holding supports North Farm’s proposition that customers may recover

monetary or injunctive relief in a private civil action if a public utility’s rates are

unreasonable. See In re Woonsocket Water Department, 538 A.2d at 1014-15;

Harsch, 120 R.I. at 232, 386 A.2d at 1108. Further, although on appeal North Farm

asserts that the 2019 pass-through rate violates G.L. 1956 § 39-2-1(a)’s requirement

that public utilities extract “reasonable and just” charges for furnishing water

services, it made no such argument to the hearing justice, and thus this argument is

waived. Nissensohn, 306 A.3d at 1035 n.7. Having failed to submit any binding

legal authority to the hearing justice to demonstrate that it was entitled to monetary

or injunctive relief due to the BCWA’s purported unlawful discrimination, North

Farm did not establish that it was entitled to such relief, and Rule 54(c) cannot save

- 25 - its unpleaded claim. See Bandoni, 715 A.2d at 598 n.16; Super. R. Civ. P. 54(c);

Kent et al., supra, § 54:4.

Denial of the Motion to Amend

Lastly, North Farm argues that the hearing justice erred by denying North

Farm’s motion to amend because it violated the liberal standard for allowing

amendments to pleadings under Rule 15. North Farm’s argument regarding the

denial of its motion to amend is not properly before this Court on appeal. Article I,

Rule 3(c) of the Supreme Court Rules of Appellate Procedure requires the notice of

appeal to “specify the party or parties taking the appeal and shall designate the

judgment, order, or decree or part thereof appealed from.” Thus, “[w]e will not

consider ‘an issue on appeal for which a notice of appeal never was filed.’” Sentas

v. Sentas, 911 A.2d 266, 269 n.3 (R.I. 2006) (quoting State v. Hallenbeck, 878 A.2d

992, 1020 (R.I. 2005)). North Farm filed a notice of appeal from the April 6, 2022

final judgment in favor of the BCWA on counts three and four of North Farm’s

amended complaint. North Farm did not file a notice of appeal from the hearing

justice’s March 9, 2021 order denying North Farm’s motion to amend the complaint

to add a proposed count five. While “a notice of appeal that designates the final

judgment encompasses * * * all earlier interlocutory orders that merge into the

judgment[,]” here final judgment was entered only as to counts three and four, rather

than North Farm’s third amended complaint as a whole. Greensleeves, Inc. v. Smiley,

- 26 - 942 A.2d 284, 290 (R.I. 2007) (quoting John’s Insulation, Inc. v. L. Addison and

Associates, Inc., 156 F.3d 101, 105 (1st Cir. 1998)). Therefore, we cannot properly

consider North Farm’s arguments regarding the hearing justice’s denial of the

motion to amend. See id.; Sentas, 911 A.2d at 269 n.3.

While we have resolved counts three and four, we are mindful that the

litigation between the parties remains ongoing and that several claims and

counterclaims remain pending in the Superior Court. We urge the parties to continue

to pursue settlement, with perhaps the appointment of a special master, in order to

resolve the remaining claims. See Skaling v. Aetna Insurance Company, 799 A.2d

997, 1012 (R.I. 2002) (“It is the policy of this state to encourage the settlement of

controversies in lieu of litigation.”).

Conclusion

For the reasons stated herein, we affirm the judgment of the Superior Court.

The papers shall be returned to the Superior Court.

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

OPINION COVER SHEET

North Farm Home Owners Association, Inc. v. Bristol Title of Case County Water Authority. No. 2022-167-Appeal. Case Number (PC 17-4623)

Date Opinion Filed June 14, 2024

Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Justices Long, JJ.

Written By Associate Justice Erin Lynch Prata

Source of Appeal Providence County Superior Court

Judicial Officer from Lower Court Associate Justice Brian P. Stern

For Plaintiff:

John Deacon, Esq. Attorney(s) on Appeal For Defendant:

Joseph A. Keough, Jr., Esq.

SU-CMS-02A (revised November 2022)