Supreme Court
No. 2011-270-Appeal
No. 2011-271-Appeal
No. 2011-272-Appeal
(WC 06-132)
Joseph Chen :
v. :
Subaru of America. :
ORDER
Before this Court are cross-appeals by the plaintiff, Joseph Chen, and the defendant,
Subaru of America (Subaru).1 This case came before us for oral argument on October 23, 2012,
pursuant to an order directing the parties to appear and show cause why the issues raised in these
appeals should not be summarily decided. After reviewing the record and considering the
written and oral submissions of the parties, we are satisfied that these appeals may be decided
without further briefing or argument. For the reasons set forth in this order, we dismiss the
appeals and affirm the judgment of the Superior Court.
Although we ultimately resolve this consolidated appeal on procedural grounds, we
briefly turn to the facts in this case. Chen is the owner of a 1995 Subaru Impreza, which he
1
The case before us involves three separate docket numbers, which have been consolidated by
this Court. Case No. 2011-270-A is a cross-appeal by Subaru. Despite prevailing on a motion
for judgment as a matter of law pursuant to Rule 50 of the Superior Court Rules of Civil
Procedure in this case, Subaru cross-appeals from the Superior Court’s (1) denial of its motion to
dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Superior Court Rules of Civil
Procedure and (2) denial of its motion for summary judgment pursuant to Rule 56 of the Superior
Court Rules of Civil Procedure. Case No. 2011-271-A is Chen’s appeal from the trial justice’s
ruling quashing certain subpoenas as facially defective. Lastly, Case No. 2011-272-A is Chen’s
appeal from the grant of judgment as a matter of law in favor of Subaru.
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obtained in 2004 from a private individual. On June 14, 2005, Chen brought the car to Pat’s
Auto Center (Pat’s), a repair shop located in Westerly, Rhode Island, to fix the clutch on the
manual transmission, which he believed had been slipping.2 Pat’s ordered a new clutch
assembly and told Chen to bring the car back to the repair shop on June 20, 2005, for the
installation.
Thereafter, when Pat’s attempted to install the new clutch assembly, it soon discovered
that the replacement part it had ordered did not fit with the car’s transmission. Consequently,
the car was not ready for Chen to pick up that same day (June 20, 2005), as Pat’s had originally
promised. Pat’s ultimately completed the installation two days later, on June 22, 2005.
Chen, representing himself pro se, then brought a claim against Subaru under the
Deceptive Trade Practices Act (act), G.L. 1956 chapter 13.1 of title 6.3 He claimed that Subaru,
when it originally manufactured his car, improperly installed an “unidentified [m]ishmash part,”
which did not conform to the actual specifications for the specific model of his car.
2
Chen originally filed a complaint naming both Subaru and Pat’s as defendants. In his breach-
of-contract claim against Pat’s, he claimed that Pat’s overcharged him for the installation of the
clutch and misrepresented when the job would be completed. On June 26, 2008, the Washington
County Superior Court granted summary judgment in favor of Pat’s because the claim failed to
meet the requisite amount in controversy. We affirmed the grant of summary judgment in an
order on October 21, 2009. Chen v. Subaru of America, 981 A.2d 1018 (R.I. 2009) (mem.).
Accordingly, Pat’s is no longer a defendant in this case.
3
In pertinent part, G.L. 1956 § 6-13.1-5.2(a) provides that
“[a]ny person who purchases or leases goods or services primarily
for personal, family, or household purposes and thereby suffers
any ascertainable loss of money or property, real or personal, as a
result of the use or employment by another person of a method,
act, or practice declared unlawful by § 6-13.1-2 [comprising
‘[u]nfair methods of competition and unfair deceptive acts or
practices in the conduct of any trade or commerce’], may bring an
action * * * to recover actual damages * * *. The court may, in its
discretion, award punitive damages and may provide other
equitable relief that it deems necessary or proper.”
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Subaru subsequently moved to dismiss the complaint under Rule 12(b)(6) of the Superior
Court Rules of Civil Procedure and submitted a memorandum contending that Chen failed to
state a claim under the act because (1) there was no privity of contract between Chen and
Subaru; and because (2) Chen did not specifically plead that he suffered an ascertainable loss of
money or property. On February 19, 2007, a hearing justice denied the motion, viewing the facts
in the light most favorable to Chen. The hearing justice declared that the act did not “seem to * *
* require[ ] privity of contract between the consumer and the alleged deceptive trade practice
violator, as long as there is a connection between the deceptive trade practice and the harm to the
plaintiff.”
Thereafter, Subaru moved for summary judgment. In its supporting memorandum,
Subaru maintained that Chen lacked standing under the act. In an order dated August 18, 2008, a
second hearing justice denied the motion. She memorialized that order in a written decision
issued on August 25, 2008, in which she determined that Chen had standing to bring a claim
against Subaru under the act. Notably, though, she stated that because the “motion was based
solely on * * * arguments as to standing, * * * it [wa]s therefore irrelevant to this motion
whether or not the alleged conduct itself [wa]s deceptive as a matter of law.”
At two separate pretrial hearings a third justice, who later presided over the trial, quashed
subpoenas that were issued to two witnesses Chen had expected to call at trial. The subpoenas
did not contain the signatures of an issuing officer, as required by Rule 45 of the Superior Court
Rules of Civil Procedure. Chen objected to the trial justice’s ruling quashing the subpoenas,
arguing, among other things, that the motion to quash was not brought within a reasonable time.
He thereafter appealed to this Court. The appeal, however, was interlocutory and therefore not
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appropriate for review by this Court at the time it was filed.4 See Francis v. Brown, 776 A.2d
1065, 1065-66 (R.I. 2001) (mem.); see also 2 David A. Wollin, Rules of Appellate Procedure
with Commentaries § 3:2 (West 2004) (“It has long been established in Rhode Island that
appellate review must normally await the trial court’s final determination of the action. * * *
[T]he right to appeal is limited to final judgments, orders, and decrees * * * [since these
dispositions] completely terminate[ ] the litigation between the parties on the merits.”).
The case then proceeded to trial before a jury on February 8, 2011.5 After Chen rested
his case, Subaru moved for a judgment as a matter of law pursuant to Rule 50 of the Superior
Court Rules of Civil Procedure, which the trial justice granted on February 9, 2011. In his
decision, the trial justice noted that, although Chen marked exhibits for identification, none were
actually submitted into evidence as full exhibits. Taking the evidence in the “light most
favorable to Mr. Chen,” the trial justice determined that Chen failed to satisfy the requisite
elements under the act. Specifically, he ruled that Chen failed to (1) produce evidence that
Subaru actually manufactured the car and parts at issue; (2) demonstrate that a deceptive act ever
occurred;6 and (3) prove that he suffered actual damages. Lastly, the trial justice determined that
Chen was not entitled to punitive damages because he failed to prove that any acts on the part of
Subaru were “intentional[,] * * * malicious, reckless, or in wanton disregard for the rights of Mr.
Chen or other complainants.”
4
At the outset, we note that review of the trial justice’s decision to quash the subpoenas would
ordinarily merge into Chen’s subsequent appeal from the final judgment in favor of Subaru. See
Greensleeves, Inc. v. Smiley, 942 A.2d 284, 290 (R.I. 2007) (stating that “a notice of appeal that
designates the final judgment encompasses not only that judgment, but also all earlier
interlocutory orders that merge in the judgment”) (quoting John’s Insulation, Inc. v. L. Addison
and Associates, Inc., 156 F.3d 101, 105 (1st Cir. 1998)).
5
As we discuss below, the transcript from the actual trial proceeding was never ordered on
appeal, which is ultimately fatal to this appeal.
6
Additionally, the trial justice stated that Chen “needed to submit expert testimony in order to
establish that [the part at issue] was defective.”
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Chen then appealed to this Court.7 Thereafter, Subaru cross-appealed from the Superior
Court’s earlier denials of its Rule 12(b)(6) motion and its Rule 56 motion for summary judgment.
Based on the record before us on appeal, there are threshold procedural impediments that
preclude this Court from deciding whether the trial justice’s decisions to quash the subpoenas
and to grant judgment as a matter of law were proper.
Chen did not perfect the appeal to this Court in accordance with Article I, Rule 10(b)(1)
of the Supreme Court Rules of Appellate Procedure. His failure to order a transcript of the trial
proceeding in this case is not only “risky business,” but also fatal to his appeal. See Bergquist v.
Cesario, 844 A.2d 100, 105 (R.I. 2004). Rule 10(b)(1) states that “[w]ithin twenty (20) days
after filing the notice of appeal the appellant shall order from the reporter a transcript of such
parts of the proceedings not already on file as the appellant deems necessary for inclusion in the
record.” Additionally, Article I, Rule 11(a) of the Supreme Court Rules of Appellate Procedure
provides that, “[t]he record on appeal, including the transcript necessary for the determination of
the appeal, shall be transmitted to the Supreme Court within sixty (60) days after the filing of the
notice of appeal * * *.”
Moreover, pursuant to Rule 11, “it is the duty of the appellant ‘to ensure that the record is
complete and ready for transmission.’” Small Business Loan Fund Corp. v. Gallant, 795 A.2d
531, 532 (R.I. 2002) (quoting Procopio v. PRM Concrete Corp., 711 A.2d 650, 651 (R.I. 1998)
(mem.)). As such, “[f]ailure to perfect an appeal under Rule 11, which requires transmission of
the record within 60 days of filing the notice of appeal, ‘leaves a [would-be appellant] in the
7
In its brief to this Court, Subaru contends that Chen’s appeal is premature because he appealed
a few hours prior to the entry of final judgment. However, the later entry of final judgment cured
the defect in the premature appeal. See Merrimack Mutual Fire Insurance Co. v. Dufault, 958
A.2d 620, 623 n.4 (R.I. 2008).
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same position as not having filed notice at all.’” Gallant, 795 A.2d at 532-33 (quoting Town of
Lincoln v. Cournoyer, 188 R.I. 644, 648, 375 A.2d 410, 412 (1977)).
It is well settled that “[if] the appealing party fails to provide a sufficient transcript, th[is]
Court cannot perform a meaningful review and has no choice but to uphold the lower court’s
findings.” Bergquist, 844 A.2d at 105 (citing State v. Pineda, 712 A.2d 858, 861 (R.I. 1998)).
Here, without a transcript of the trial proceeding, we are unable to adequately conduct the
requisite de novo review of the trial justice’s decision on the motion for judgment as a matter of
law. See Savoy Realty Corp. v. LPL, Inc., 121 R.I. 962, 962, 401 A.2d 61, 61 (1979) (mem.)
(“[W]e ordinarily will not decide matters presented to us unless there has * * * been transmitted
to us so much of the record of the tribunal below as may be necessary to enable us to pass on the
question at issue * * *.”); see also Medeiros v. Sitrin, 984 A.2d 620, 625 (R.I. 2009). Therefore,
we deny and dismiss Chen’s appeal of that decision.
Additionally, with respect to Chen’s appeal of the trial justice’s decision to quash the
subpoenas, we likewise dismiss. As noted above, Chen’s initial appeal was interlocutory and
therefore not properly before this Court. Nonetheless, once Chen appealed the final judgment to
this Court, the interlocutory orders merged into that appeal. See note 4, supra. However, since
we dismiss the appeal of the trial justice’s decision on the motion for judgment as a matter of
law, there is no longer a proper vehicle that enables us to review the quashing of the subpoenas.
Accordingly, the appeal of the trial justice’s decision to quash the subpoenas is effectively
unhinged from the appeal of the Rule 50 motion, and it is dismissed.
We note, though, that even if we were to consider the merits of Chen’s appeal of the trial
justice’s decision to quash the subpoenas, we discern no abuse of discretion on the part of the
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trial justice. See Butera v. Boucher, 798 A.2d 340, 345 (R.I. 2002).8 We agree with the trial
justice’s determination that the subpoenas were invalid for their failure to contain the signature
of an issuing officer, in contravention of Rule 45. Thus, we would conclude that the quashing
was proper.
Furthermore, we need not reach the merits of Subaru’s cross-appeal, since we affirm the
judgment of the Superior Court in favor of Subaru. At oral argument, Subaru acknowledged that
its cross-appeal was brought out of “an abundance of caution” and was therefore contingent. It is
well settled that this Court will not render an advisory opinion, unless it is constitutionally
required. See H.V. Collins Co. v. Williams, 990 A.2d 845, 847 (R.I. 2010). Therefore, we
dismiss the cross-appeal.
For the reasons stated in this order, we dismiss the appeals and affirm the judgment of the
Superior Court, to which we remand the record in this case.
Entered as an Order of this Court, this 27th day of November, 2012.
By Order,
_______________/s/___________________
Clerk
8
On appeal, although Chen failed to order a transcript of the trial proceeding, he did order
transcripts of the hearings concerning the motions to quash.
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RHODE ISLAND SUPREME COURT CLERK’S OFFICE
Clerk’s Office Order/Opinion Cover Sheet
TITLE OF CASE: Joseph Chen v. Subaru of America.
CASE NO: No. 2011-270-Appeal
No. 2011-271-Appeal
No. 2011-272-Appeal
(WC 06-132)
COURT: Supreme Court
DATE ORDER FILED: November 27, 2012
JUSTICES: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
WRITTEN BY: N/A – Court Order
SOURCE OF APPEAL: Washington County Superior Court
JUDGE FROM LOWER COURT:
Associate Justice Allen P. Rubine
Associate Justice O. Rogeriee Thompson
Associate Justice Jeffrey A. Lanphear
ATTORNEYS ON APPEAL:
For Plaintiff: Joseph Chen, Pro se
For Defendant: Kelly A. Kincaid, Esq.