June 13, 2023 Supreme Court
No. 2022-32-Appeal. (PC 21-4156)
Ronald J. Resmini :
v. :
Verizon New England Inc. :
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, and Long, JJ.
OPINION
Justice Robinson, for the Court. This is an appeal from the Superior
Court’s grant of the motion to dismiss of the defendant, Verizon New England Inc.
(Verizon), dismissing with prejudice the complaint of the plaintiff, Ronald J.
Resmini. That complaint related to a billing dispute over a particular telephone
service contract. The case came before the Supreme Court for oral argument
pursuant to an order directing the parties to show cause why the issues raised in
this appeal should not be summarily decided. After considering the written and
oral submissions of the parties and after carefully reviewing the record, we are of
the opinion that this appeal may be decided without further briefing or argument.
For the reasons set forth in this opinion, we vacate the judgment of the Superior
Court.
-1- I
Facts and Travel
It is undisputed that, on January 25, 1989, Verizon entered into a contract
with plaintiff to provide “private line service” connecting a dedicated telephone
line from plaintiff’s residence to the Barrington Police Station, which was then
located on County Road in Barrington, Rhode Island. The purpose of that
telephone line was to alert the police in the event of a break-in at plaintiff’s
residence.
On June 23, 2021, plaintiff filed a two-count complaint in the Providence
County Superior Court, alleging false representation and breach of contract. The
plaintiff alleged that Verizon had continued to bill him for the telephone line, even
though it had been disconnected by Verizon “at some time in the year 2001 * * *.”
The plaintiff further alleged that Verizon had failed to notify him that the telephone
line had been disconnected and that Verizon “knowingly fraudulently
misrepresented” that the disconnected telephone line was in good working order
and continued to bill him for it, even though Verizon “knew or should have
known” that the telephone line had been disconnected.
On September 14, 2021, Verizon filed a motion to dismiss the complaint
pursuant to Rule 12(b)(6) of the Superior Court Rules of Civil Procedure on the
grounds that plaintiff’s claims were “barred by the doctrine of account stated” and
-2- by the statute of limitations. Additionally, Verizon’s motion to dismiss contended
that plaintiff would be unable to prove an element that was essential to each of his
claims.1 Notably, Verizon attached to its motion the affidavit of one Yolande
Sandy, a Verizon analyst with personal knowledge of plaintiff’s account.2
On October 14, 2021, plaintiff filed an objection to Verizon’s motion to
dismiss, which objection was accompanied by plaintiff’s affidavit. Later that same
day, plaintiff “refiled” his objection accompanied by his “Corrected Affidavit.”3 In
that affidavit, plaintiff stated that, in early December of 2020, during a
conversation with Bob Sacoccio, whose company provided alarm services to
plaintiff, plaintiff learned for the first time
“that the security alert system should have terminated when the Barrington Police Station on County Road had been destroyed roughly 15 years ago, and that this telephone connection * * * with the County Road Barrington Police Station [which] I had been paying for had not been able to alert the Barrington Police Station of
1 Verizon contended that, because the telephone line “remained active” until plaintiff requested that it be deactivated, he could neither prove that Verizon’s representations were false nor that Verizon breached any contractual relationship with him. 2 Ms. Sandy averred (1) that the telephone line had been in constant service since January 25, 1989; (2) that Verizon did not disconnect the service in 2001; and (3) that Verizon disconnected the service on April 9, 2021 at plaintiff’s request. 3 We shall hereinafter treat plaintiff’s “Corrected Affidavit” as his operative affidavit, and we shall simply refer to it as we would to any other affidavit.
-3- a break-in since said destruction, and that all billing for that service should have ended.”
In his affidavit, plaintiff further averred that the “sole purpose” of the
telephone line was for “alerting the Barrington Police Station in the event of a
break-in to [his] residence * * *.”
The plaintiff also submitted an affidavit dated October 5, 2021 from Mr.
Sacoccio. In that affidavit, which accompanied plaintiff’s objection to Verizon’s
motion to dismiss, Mr. Sacoccio attested that he had provided the security system
at plaintiff’s residence about thirty years previously, which used the telephone line
installed by Verizon to connect plaintiff’s burglar alarm system to the Barrington
Police Station on County Road. Mr. Sacoccio further attested that, when the police
station was relocated to another location in Barrington about fifteen years
previously, “the alarm line connecting [plaintiff’s] residence to [the police station]
on County Road automatically terminated.” Mr. Sacoccio also averred that he
provided this information to plaintiff in 2020 when he contacted him.4
Significantly, in the memorandum accompanying his objection to Verizon’s
motion to dismiss, plaintiff stated that “if the [c]ourt were to find that the plaintiff’s
4 In his own affidavit, plaintiff averred that this conversation with Mr. Sacoccio in 2020 was the first time that he had learned that the telephone line should have terminated when the police station on County Road was demolished approximately fifteen years earlier. The plaintiff added that Verizon had never informed him that the telephone line “was no longer available to provide [him] with a telephone connection capable of alerting the Barrington Police Station of any break-ins” at his residence.
-4- affidavits do not present facts essential to justify the plaintiff’s opposition,
pursuant to Rule 56(f) [plaintiff] would request an opportunity to conduct further
discovery given the young age of the case.”
Verizon’s motion to dismiss was heard in the Superior Court on January 12,
2022; and, on that same date, the hearing justice rendered a bench decision
dismissing plaintiff’s complaint in its entirety with prejudice. The hearing justice
stated that “to assess whether the statute of limitations has run, this [c]ourt will
have to look at the evidence. And based upon that, the [c]ourt is going to grant
defendant’s motion to dismiss.” Judgment did not enter until January 12, 2023.
The plaintiff filed a timely notice of appeal.
II
Issues on Appeal
The plaintiff argues on appeal that the hearing justice failed to identify with
specificity the “evidence” on which he predicated his decision to grant the motion
to dismiss. He further contends that, if the hearing justice converted the motion to
dismiss to one for summary judgment, then he erred by granting summary
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June 13, 2023 Supreme Court
No. 2022-32-Appeal. (PC 21-4156)
Ronald J. Resmini :
v. :
Verizon New England Inc. :
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, and Long, JJ.
OPINION
Justice Robinson, for the Court. This is an appeal from the Superior
Court’s grant of the motion to dismiss of the defendant, Verizon New England Inc.
(Verizon), dismissing with prejudice the complaint of the plaintiff, Ronald J.
Resmini. That complaint related to a billing dispute over a particular telephone
service contract. The case came before the Supreme Court for oral argument
pursuant to an order directing the parties to show cause why the issues raised in
this appeal should not be summarily decided. After considering the written and
oral submissions of the parties and after carefully reviewing the record, we are of
the opinion that this appeal may be decided without further briefing or argument.
For the reasons set forth in this opinion, we vacate the judgment of the Superior
Court.
-1- I
Facts and Travel
It is undisputed that, on January 25, 1989, Verizon entered into a contract
with plaintiff to provide “private line service” connecting a dedicated telephone
line from plaintiff’s residence to the Barrington Police Station, which was then
located on County Road in Barrington, Rhode Island. The purpose of that
telephone line was to alert the police in the event of a break-in at plaintiff’s
residence.
On June 23, 2021, plaintiff filed a two-count complaint in the Providence
County Superior Court, alleging false representation and breach of contract. The
plaintiff alleged that Verizon had continued to bill him for the telephone line, even
though it had been disconnected by Verizon “at some time in the year 2001 * * *.”
The plaintiff further alleged that Verizon had failed to notify him that the telephone
line had been disconnected and that Verizon “knowingly fraudulently
misrepresented” that the disconnected telephone line was in good working order
and continued to bill him for it, even though Verizon “knew or should have
known” that the telephone line had been disconnected.
On September 14, 2021, Verizon filed a motion to dismiss the complaint
pursuant to Rule 12(b)(6) of the Superior Court Rules of Civil Procedure on the
grounds that plaintiff’s claims were “barred by the doctrine of account stated” and
-2- by the statute of limitations. Additionally, Verizon’s motion to dismiss contended
that plaintiff would be unable to prove an element that was essential to each of his
claims.1 Notably, Verizon attached to its motion the affidavit of one Yolande
Sandy, a Verizon analyst with personal knowledge of plaintiff’s account.2
On October 14, 2021, plaintiff filed an objection to Verizon’s motion to
dismiss, which objection was accompanied by plaintiff’s affidavit. Later that same
day, plaintiff “refiled” his objection accompanied by his “Corrected Affidavit.”3 In
that affidavit, plaintiff stated that, in early December of 2020, during a
conversation with Bob Sacoccio, whose company provided alarm services to
plaintiff, plaintiff learned for the first time
“that the security alert system should have terminated when the Barrington Police Station on County Road had been destroyed roughly 15 years ago, and that this telephone connection * * * with the County Road Barrington Police Station [which] I had been paying for had not been able to alert the Barrington Police Station of
1 Verizon contended that, because the telephone line “remained active” until plaintiff requested that it be deactivated, he could neither prove that Verizon’s representations were false nor that Verizon breached any contractual relationship with him. 2 Ms. Sandy averred (1) that the telephone line had been in constant service since January 25, 1989; (2) that Verizon did not disconnect the service in 2001; and (3) that Verizon disconnected the service on April 9, 2021 at plaintiff’s request. 3 We shall hereinafter treat plaintiff’s “Corrected Affidavit” as his operative affidavit, and we shall simply refer to it as we would to any other affidavit.
-3- a break-in since said destruction, and that all billing for that service should have ended.”
In his affidavit, plaintiff further averred that the “sole purpose” of the
telephone line was for “alerting the Barrington Police Station in the event of a
break-in to [his] residence * * *.”
The plaintiff also submitted an affidavit dated October 5, 2021 from Mr.
Sacoccio. In that affidavit, which accompanied plaintiff’s objection to Verizon’s
motion to dismiss, Mr. Sacoccio attested that he had provided the security system
at plaintiff’s residence about thirty years previously, which used the telephone line
installed by Verizon to connect plaintiff’s burglar alarm system to the Barrington
Police Station on County Road. Mr. Sacoccio further attested that, when the police
station was relocated to another location in Barrington about fifteen years
previously, “the alarm line connecting [plaintiff’s] residence to [the police station]
on County Road automatically terminated.” Mr. Sacoccio also averred that he
provided this information to plaintiff in 2020 when he contacted him.4
Significantly, in the memorandum accompanying his objection to Verizon’s
motion to dismiss, plaintiff stated that “if the [c]ourt were to find that the plaintiff’s
4 In his own affidavit, plaintiff averred that this conversation with Mr. Sacoccio in 2020 was the first time that he had learned that the telephone line should have terminated when the police station on County Road was demolished approximately fifteen years earlier. The plaintiff added that Verizon had never informed him that the telephone line “was no longer available to provide [him] with a telephone connection capable of alerting the Barrington Police Station of any break-ins” at his residence.
-4- affidavits do not present facts essential to justify the plaintiff’s opposition,
pursuant to Rule 56(f) [plaintiff] would request an opportunity to conduct further
discovery given the young age of the case.”
Verizon’s motion to dismiss was heard in the Superior Court on January 12,
2022; and, on that same date, the hearing justice rendered a bench decision
dismissing plaintiff’s complaint in its entirety with prejudice. The hearing justice
stated that “to assess whether the statute of limitations has run, this [c]ourt will
have to look at the evidence. And based upon that, the [c]ourt is going to grant
defendant’s motion to dismiss.” Judgment did not enter until January 12, 2023.
The plaintiff filed a timely notice of appeal.
II
Issues on Appeal
The plaintiff argues on appeal that the hearing justice failed to identify with
specificity the “evidence” on which he predicated his decision to grant the motion
to dismiss. He further contends that, if the hearing justice converted the motion to
dismiss to one for summary judgment, then he erred by granting summary
judgment in favor of Verizon because “there were numerous issues of fact” that
militated against the granting of summary judgment. Among the issues of fact to
which plaintiff pointed was the need to determine which party was obliged “to
exercise diligence in making sure the service was operational.”
-5- III
Standard of Review
It is well established that “[i]n reviewing a hearing justice’s decision with
respect to a Rule 12(b)(6) motion to dismiss, this Court examines the allegations
contained in the plaintiff’s complaint, assumes them to be true, and views them in
the light most favorable to the plaintiff.” Palazzo v. Alves, 944 A.2d 144, 149 (R.I.
2008). In addition, we have stated that “[t]he sole function of a motion to dismiss
is to test the sufficiency of the complaint,” and we have further stated that a Rule
12(b)(6) motion is appropriately granted “when it is clear beyond a reasonable
doubt that the plaintiff would not be entitled to relief from the defendant under any
set of facts that could be proven in support of the plaintiff’s claim.” Id. at 149-50
(internal quotation marks omitted). However, Rule 12(b) also explicitly provides
that when “matters outside the pleading 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 motion by Rule 56.” Super. R. Civ. P.
12(b).5
5 See Mokwenyei v. Rhode Island Hospital, 198 A.3d 17, 22 (R.I. 2018) (“[W]hen a motion to dismiss includes documents as exhibits that were either mentioned or referred to in a complaint but not expressly incorporated, and the hearing justice does not explicitly exclude them from consideration, the motion
-6- We review rulings granting summary judgment in a de novo manner.
Newstone Development, LLC v. East Pacific, LLC, 140 A.3d 100, 103 (R.I. 2016).
In doing so, we employ “the same standards and rules used by the hearing justice.”
Id. (quoting Daniels v. Fluette, 64 A.3d 302, 304 (R.I. 2013)). And we “review the
evidence in a light most favorable to the nonmoving party and will affirm the
judgment if there exists no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law.” Lynch v. Spirit Rent-A-Car, Inc., 965 A.2d
417, 424 (R.I. 2009). It should also be borne in mind that “[s]ummary judgment is
a drastic remedy * * * [which] should be dealt with cautiously.” Polanco v.
Lombardi, 231 A.3d 139, 144 (R.I. 2020) (quoting Employers Mutual Casualty Co.
v. Arbella Protection Insurance Co., 24 A.3d 544, 553 (R.I. 2011)).
IV
Analysis
We first must determine under which standard to review this appeal.6 It is
clear from the record that the hearing justice did not expressly exclude from his
automatically converts to one for summary judgment.”) (internal quotation marks and deletion omitted). 6 It is important to keep in mind that the hearing justice stated that, in order “to assess whether the statute of limitations has run, this [c]ourt will have to look at the evidence. And based upon that, the [c]ourt is going to grant defendant’s motion to dismiss.” (Emphasis added.) It is our view that the motion filed pursuant to Rule 12(b)(6) of the Superior Court Rules of Civil Procedure was converted sub silentio to a motion for summary judgment.
-7- consideration the materials submitted by the parties outside the pleadings—
namely, the affidavits attached to the memoranda of both parties. As such,
Verizon’s motion to dismiss was automatically converted to a motion for summary
judgment. Mokwenyei v. Rhode Island Hospital, 198 A.3d 17, 22-23 (R.I. 2018);
see generally Bethlehem Rebar Industries, Inc. v. Fidelity and Deposit Company of
Maryland, 582 A.2d 442, 444 (R.I. 1990).
Accordingly, we proceed to review the judgment of the Superior Court
pursuant to the well-settled Rule 56 standards. Since plaintiff is the “nonmoving”
party, we view the evidence in the light most favorable to him and will affirm only
if Verizon is entitled to judgment as a matter of law. Mokwenyei, 198 A.3d at 23.
Upon reviewing the record, it is clear to us that there were issues of material
fact that should have precluded the hearing justice from granting summary
judgment. The first and most basic bone of contention between the parties is
whether the terms of the parties’ contract charged Verizon or plaintiff with the
obligation to exercise diligence in monitoring the continued operability of the
telephone line. Indeed, Verizon has conceded that the parties dispute this issue,
but it contends that the issue is not material to the instant dispute. It is our view,
however, that this dispute does constitute a genuine issue of material fact that is
relevant to the resolution of each of the two counts in the complaint. See Botelho v.
City of Pawtucket School Department, 130 A.3d 172, 177-78 (R.I. 2016).
-8- Another contested issue is the question of when exactly the service line
terminated and when the Barrington Police Station was demolished. Verizon’s
employee, Ms. Sandy, stated in her affidavit that the line remained active until
2021, but plaintiff stated in his affidavit that it should have automatically
terminated some time in the early 2000s. These conflicting statements in the
parties’ affidavits reflect another genuinely disputed issue of material fact.
For these reasons, it is our opinion that the hearing justice erred in granting
Verizon’s motion to dismiss, which had been converted sub silentio to a motion for
summary judgment. See Botelho, 130 A.3d at 178 (“Since the purpose of the
summary-judgment procedure is to identify disputed issues of fact necessitating
trial, and not to resolve such issues, the issue of material fact in this case should
have precluded the grant of summary judgment in favor of the plaintiffs.”)
(brackets and internal quotation marks omitted).
V
Conclusion
For the reasons set forth in this opinion, we vacate the judgment of the
Superior Court and remand this case to that tribunal for further proceedings
consistent with this opinion. The record shall be returned to the Superior Court.
Justice Lynch Prata did not participate.
-9- STATE OF RHODE ISLAND SUPREME COURT – CLERK’S OFFICE Licht Judicial Complex 250 Benefit Street Providence, RI 02903
OPINION COVER SHEET
Title of Case Ronald J. Resmini v. Verizon New England Inc.
No. 2022-32-Appeal. Case Number (PC 21-4156)
Date Opinion Filed June 13, 2023
Justices Suttell, C.J., Goldberg, Robinson, and Long, JJ.
Written By Associate Justice William P. Robinson III
Source of Appeal Providence County Superior Court
Judicial Officer from Lower Court Associate Justice R. David Cruise
For Plaintiff:
Charles N. Garabedian, Esq. Attorney(s) on Appeal For Defendant:
Matthew S. Prunk, Esq.
SU-CMS-02A (revised November 2022)