Mario Gianfrancesco v. A.R. Bilodeau, Inc.

Supreme Court

No. 2014-12-Appeal.
(PC 13-1458)

Mario Gianfrancesco :

v. :

A.R. Bilodeau, Inc. et al. :

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 222-
3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.
 Supreme Court

No. 2014-12-Appeal.
(PC 13-1458)

Mario Gianfrancesco :

v. :

A.R. Bilodeau, Inc. et al. :

Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

OPINION

Chief Justice Suttell, for the Court. The defendants, A.R. Bilodeau, Inc. (ARB) and

Service Tech, Inc. (Service Tech), appeal from a Superior Court order granting preliminary

injunctive relief to the plaintiff, Mario Gianfrancesco, which prevented the defendants from

trespassing on the plaintiff’s property. This case came before the Supreme 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 considering the parties’ written and oral submissions and

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

decided without further briefing or argument. For the reasons set forth in this opinion, we affirm

the order of the Superior Court.

I

Facts and Procedural History

The plaintiff and defendants in this action are business owners with abutting properties

located on Douglas Avenue in North Providence. The plaintiff owns the Geneva Diner, located

at 1162 Douglas Avenue; he has owned this diner since 1992 or 1993, before which time it was

owned by his father, beginning in 1983. The defendant ARB owns property located at 1164

Douglas Avenue, and defendant Service Tech is ARB’s tenant. Andrew Bilodeau is the sole

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shareholder of both ARB and Service Tech. ARB has owned the property at 1164 Douglas

Avenue since 1998, which is when Service Tech began operating in that location. Service Tech

is in the business of manufacturing and servicing water remediation and air filtration equipment.

As part of its usual operations, Service Tech requires deliveries of materials that arrive on large

tractor-trailer trucks, ranging in length from thirty to fifty-three feet. These trucks are not owned

by Service Tech, but are affiliated with independent trucking companies. 1 Bilodeau testified that

these deliveries occur at least once a week, or six to eight times per month. 2

The plaintiff’s and defendants’ properties are accessible from Douglas Avenue by means

of adjacent driveways, or “curb cuts,” separated by a small section of sidewalk. These two curb

cuts lead to an open parking area, through which runs the unmarked boundary line between the

two lots. Since Service Tech began operating at its current location in 1998, large delivery

trucks routinely travel on a diagonal path from Douglas Avenue, through plaintiff’s driveway,

and onto Service Tech’s premises. Bilodeau explained that, although plaintiff had never given

him permission to use his driveway, Bilodeau allowed the truck drivers to enter Service Tech via

plaintiff’s property because “[i]t was the only way to get the product into [his] facility.”

Timothy Rutherford, a Service Tech employee, also testified that the trucks use plaintiff’s

driveway because “[t]here is just not enough room. They wouldn’t be able to make it to the

facility otherwise. * * * There is no other way to do it.” The diagonal path through plaintiff’s

driveway to Service Tech’s premises, which is traveled regularly by the large delivery trucks, is

the disputed property at issue in this case.

1
Service Tech owns its own fleet of smaller trucks, which it also uses frequently.
2
In contrast, Timothy Rutherford, an employee of Service Tech since 1994, testified that these
deliveries occur approximately “a dozen times a month.”
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 The plaintiff testified that, between the years 1999 and 2001, there were a few instances

in which trucks caused damage to the diner while making deliveries to Service Tech. After this

happened multiple times, plaintiff “aggressively policed” his property in order to prevent the

trucks from causing further damage. The plaintiff testified that the trucks continued to pass

through plaintiff’s property despite his actions, although less frequently. Arthur Cimini, who had

been a patron of the diner for approximately thirty years and had done some carpentry work

there, testified that, one day when he was leaving the diner, he found that his vehicle was

blocked in by a truck; after requesting that the truck be moved, “the people from next door came

with a forklift and loaded the truck.” However, Bilodeau testified that he had never given

permission for any tractor-trailer trucks to park on plaintiff’s property. The plaintiff rented the

diner to a tenant for three years from 2010 to 2013 and then took repossession of the business in

March 2013, at which point he noticed that trucks were passing over his property more

frequently.

The plaintiff filed a complaint against defendants in Providence County Superior Court

on March 28, 2013. The complaint included a demand to cease and desist and a request to quiet

title, as well as claims for tortious interference with business relations and quantum meruit. The

plaintiff’s prayer for relief included requests for a declaratory judgment that plaintiff was the sole

and exclusive owner of his property; and injunctive relief enjoining defendants from trespassing

onto, interfering with, obstructing, or blocking plaintiff’s business. On April 12, 2013,

defendants filed an answer to plaintiff’s complaint and asserted counterclaims for adverse

possession, 3 easement by prescription, possession by acquiescence, and trespass. The defendants

then moved for their own temporary restraining order on May 13, 2013, seeking to enjoin

3
This claim was later withdrawn.
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plaintiff from blocking access to the diagonal path through plaintiff’s driveway that the delivery

trucks had been using to access Service Tech’s premises. Five days of hearings were held

between May 22, 2013 and June 10, 2013 4 on the parties’ cross-motions for preliminary

injunctive relief, which included the testimony of eight witnesses and the introduction of forty-

one exhibits into evidence.

In addition to testimony regarding defendants’ use of plaintiff’s driveway, plaintiff

revealed that, for approximately the past thirty years, customers of the Geneva Diner had used a

parking area directly to the right of the diner, which encroached on the property occupied by

Service Tech. When cars were parked in this area, tractor-trailers were unable to access Service

Tech. The plaintiff testified that on the morning of May 23, 2013—which was the second day of

testimonial hearings in this case—he was inside the diner when he heard a Service Tech

employee call to him through a window, requesting that he move a car that was parked on

Service Tech’s property. The plaintiff called the North Providence police, and the responding

officer told plaintiff that he should put up a sign and some traffic cones in order to prevent his

customers from parking on Service Tech’s property. The plaintiff told the officer that he wanted

to install a fence along the boundary line because the Service Tech employee was “harassing

[his] customers”; plaintiff said that this harassment would continue as long as his customers were

4
The record submitted to this Court on appeal contains transcripts of five days of hearings. At
the start of the first transcribed hearing, on May 22, 2013, however, reference was made to a
previous hearing that did not include testimony. The hearing justice also clarified at the outset of
the May 22 hearing that, given the time that had passed since the filing of plaintiff’s complaint
and the nature of the hearing, the hearing justice would treat plaintiff’s motion as a motion for a
preliminary injunction rather than a motion for a temporary restraining order. Additionally, at
the outset of this hearing, the hearing justice noted that he had taken a view of the disputed
property.
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parking on Service Tech’s property. 5 The plaintiff stated that his “customers [had] been coming

to this diner for 30 years,” and he “c[ouldn’t] stop them from parking” on Service Tech’s

property.

As requested by the officer, plaintiff installed a temporary barrier along the property line

consisting of a plywood sign and cones. On June 4, 2013, plaintiff testified that no trucks had

passed over his property since he had installed the temporary fence. The next day, however,

Bilodeau testified that Service Tech employees had moved the cones out of the way in order for

a truck to make a delivery. Bilodeau also testified that, if plaintiff were allowed to erect a fence

along the boundary line, Service Tech “wouldn’t be able to get deliveries and without deliveries

[it] would be shut[]down for the most part.”

The plaintiff testified that he would be irreparably harmed if the trucks were allowed to

continue passing through and parking on his property. He identified some photographs that he

had taken, which were introduced as full exhibits during the hearings, showing a large truck

parked in front of the Geneva Diner before making a delivery to Service Tech. The plaintiff

explained that the truck, which in his estimation was fifty feet long, “overpower[ed]” his small

diner, which was only thirty feet long and ten feet tall.

Seref “Jeff” Kasapoglu, who leased the diner from plaintiff from 2010 to 2013, testified

that, approximately “every few days” during this period of time, he had observed trucks passing

over the diner property, “interfering * * * a little bit on the diner side just to make turns” because

“it has such a narrow entrance.” The plaintiff testified that he had told Kasapoglu to “be

aggressive and police the area.” Kasapoglu, however, reported having a cordial relationship with

5
Bilodeau testified that, at some point in 2013 prior to when plaintiff filed his complaint, he
became aware that plaintiff was planning to install a fence along the boundary line between the
two lots, and he warned plaintiff that if he did install a fence, Bilodeau would have to seek a
restraining order. The plaintiff, however, denied that this conversation took place.
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at least one employee of Service Tech; when one of the diner’s customers park[ed] on Service

Tech’s property, this Service Tech employee politely ask[ed] that the vehicle be moved, and

there were “[n]o problems.”

During the hearings, a video was introduced into evidence, taken on May 31, 2013, which

depicted a large tractor-trailer truck pulling in and then backing out of Service Tech’s property

without using plaintiff’s driveway. Due to the perspective of the video, it was unclear whether

the truck traversed over a small portion of plaintiff’s property while entering Service Tech’s

premises, although it did not utilize the driveway. However, according to Rutherford, a Service

Tech employee who had personally witnessed this truck exiting Service Tech’s premises, the

video did not depict the driver’s great difficulty in maneuvering the truck off Service Tech’s

property, specifically that it “took three attempts to exit.” As to the issue of whether the large

trucks had to use plaintiff’s property in order to make deliveries to Service Tech, Bilodeau

clarified that it would not be a fair statement to say that a fifty-three-foot truck could never enter

Service Tech’s premises without using plaintiff’s property, because “there are some skilled

drivers that might be able to do it if they made a hard enough swing * * * .” He conceded that it

did not depend on the truck, but rather the skill of the driver.

After the conclusion of the hearings, the hearing justice issued a bench decision granting

plaintiff’s request for preliminary injunctive relief and denying defendants’ request for the same.

This decision was reflected in an order entered on June 26, 2013, which also declared that

plaintiff had “full and rightful ownership of the property in question” and that plaintiff had “the

right to use and control the property in question.” The defendants moved on July 19, 2013 to

stay and/or modify the order of preliminary injunction. This motion was denied on August 8,

2013, and defendants filed a timely notice of appeal.

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 II

Standard of Review

Although the grant of a preliminary injunction is an interlocutory order, a direct appeal to

this Court is permissible pursuant to G.L. 1956 § 9-24-7. 6 “When reviewing a hearing justice’s

decision to grant a preliminary injunction, this Court applies an abuse of discretion standard of

review.” New England Stone, LLC v. Conte, 962 A.2d 30, 32 (R.I. 2009). If the party requesting

the preliminary injunction has established a prima facie case warranting preliminary injunctive

relief, this Court will not find an abuse of discretion. Vasquez v. Sportsman’s Inn, Inc., 57 A.3d

313, 318 (R.I. 2012). “Under such a limited scope of review, this Court need not reach nor

resolve the underlying substantive issues as it would after the imposition of a permanent

injunction.” Id. Instead, “our role is limited to determining whether the hearing justice

considered and resolved each of the appropriate preliminary injunction factors without abusing

his or her discretion.” Id. These factors consist of the following:

“whether the moving party (1) has a reasonable likelihood of
success on the merits, (2) will suffer irreparable harm without the
requested injunctive relief, (3) has the balance of the equities,
including the possible hardships to each party and to the public
interest, tip in its favor, and (4) has shown that the issuance of a
preliminary injunction will preserve the status quo.” Id. (quoting
Iggy’s Doughboys, Inc. v. Giroux, 729 A.2d 701, 705 (R.I. 1999)).

III

Discussion

In his bench decision, the hearing justice first reviewed the factual allegations in the case

and then discussed the factors to be considered when deciding a motion for preliminary

6
General Laws 1956 § 9-24-7 provides in pertinent part: “Whenever, upon a hearing in the
superior court, an injunction shall be granted or continued, * * * an appeal may be taken from
such order or judgment to the supreme court in like manner as from a final judgment, and the
appeal shall take precedence in the supreme court.”
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injunctive relief. He then reviewed the testimony of each witness and referred to a number of

exhibits that had been introduced into evidence. Next, he addressed defendants’ request for

preliminary injunctive relief, which he ultimately denied.

On appeal, defendants present an expansive argument as to why their request for

preliminary injunctive relief should have been granted. Specifically, they claim the right to a

prescriptive easement over plaintiff’s property and assert that they will suffer irreparable harm if

plaintiff is permitted to erect a permanent barrier along his property line. This Court, however,

has previously held that, “while ‘the grant of a preliminary injunction is appealable, * * * the

denial of a preliminary injunction is not’ * * * .” Ciprian v. Providence School Board, 29 A.3d

1239, 1239 (R.I. 2011) (mem.) (quoting Paramount Office Supply Co. v. D.A. MacIsaac, Inc.,

524 A.2d 1099, 1101 n.1 (R.I. 1987)). Instead of a direct appeal, a “petition for common-law

certiorari is the proper method by which to seek review of the denial of a preliminary

injunction.” Id. (quoting Paramount Office Supply Co., 524 A.2d at 1101 n.1). The defendants

in this case have not filed a petition for certiorari for the review of the Superior Court’s denial of

their motion for preliminary injunctive relief. Therefore, we shall not consider or decide whether

this request was properly denied.

We shall, however, address the issue of whether the hearing justice erred in granting

plaintiff’s request for preliminary injunctive relief. The defendants argue that this request should

not have been granted because plaintiff failed to establish a prima facie case. With regard to the

first prong of the preliminary injunction analysis, defendants argue that the hearing justice failed

to make a finding as to whether plaintiff had a reasonable likelihood of success on the merits of

his assorted claims. The defendants argue that, although the hearing justice found that plaintiff

had “owned the disputed area for thirty (30) years and has rightful ownership to the property,”

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this finding was irrelevant to the merits of plaintiff’s claims because none of these claims

required proof of ownership for a particular period of time.

The defendants further argue that the hearing justice abused his discretion in finding that

plaintiff would potentially suffer irreparable harm if relief were not granted. The defendants

assert that, if the trucks had been causing irreparable harm to plaintiff’s business, he would not

have waited fourteen years to bring this lawsuit. Regarding the third prong, defendants assert

that the hearing justice abused his discretion in finding that the balance of the equities tips in

favor of plaintiff. The defendants argue that plaintiff has failed to show how his business would

be harmed by the continued passage of the trucks, while defendants’ business would certainly be

harmed by the injunction, because it would force Service Tech to receive deliveries on Douglas

Avenue, which would result in a “dangerous and hazardous situation.” Next, defendants assert

that the issuance of the injunction failed to preserve the status quo because defendants had been

using the disputed area since 1998.

The plaintiff, for his part, argues that the hearing justice properly found that plaintiff had

a likelihood of success on the merits and that his business stood to suffer irreparable harm.

Furthermore, plaintiff notes that the video introduced into evidence refuted defendants’

proposition that large trucks could not make deliveries to Service Tech without crossing over

plaintiff’s property. According to plaintiff, the preliminary injunction was necessary to maintain

“[t]he status quo of the Geneva Diner’s thirty (30) year business.”

After reviewing the record of this case, we are of the opinion that the hearing justice did

not abuse his discretion in granting plaintiff’s motion for preliminary injunctive relief.

Regarding the first prong of the preliminary-injunction standard, reasonable likelihood of success

on the merits, the hearing justice found that “there has been no evidence that the plaintiff do[es]

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not own and [he has] owned for 30 years the entire parcel including the area traveled over from

time to time by the defendants.” He further found that plaintiff has “full and rightful ownership

of that property, and [he has] a right to use and control [his] property.” Although the hearing

justice’s analysis in this regard was not set forth exhaustively in his bench decision, we are

satisfied that he appropriately considered the evidence presented and found that plaintiff had a

reasonable likelihood of success on his claims for quiet title and declaratory relief.

Specifically, the parties did not disagree on the boundary line between the two properties,

and there was no evidence introduced to suggest that plaintiff was not the owner of his entire

parcel of property. The only threat to plaintiff’s claims with regard to ownership and title was

defendants’ asserted claim of an easement by prescription, which claim was rejected by the

hearing justice. Although we are not presently reviewing the hearing justice’s determination as

to the denial of defendants’ request for preliminary injunctive relief, we have considered the

likelihood of their success on the merits of their prescriptive easement claim in the context of

determining whether it constitutes a likely threat to plaintiff’s success on his own claims, and we

are of the opinion that the hearing justice did not err in finding that defendants did not prevail in

this regard.

It is well established that “[a] claimant of an easement by prescription ‘must show actual,

open, notorious, hostile, and continuous use under a claim of right for at least ten years.’”

Butterfly Realty v. James Romanella & Sons, Inc., 93 A.3d 1022, 1030 (R.I. 2014) (quoting

Drescher v. Johannessen, 45 A.3d 1218, 1227 (R.I. 2012)). Additionally, “[a] plaintiff claiming

an easement * * * bears the heavy burden of proving ‘each element by a preponderance of clear

and convincing evidence.’” Id. (quoting Carpenter v. Hanslin, 900 A.2d 1136, 1146 (R.I. 2006)).

As this Court has previously explained, the hostility element of a prescriptive-easement claim is

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satisfied “if one goes upon the land openly and uses it adversely to the true owner * * * .”

Butterfly Realty v. James Romanella & Sons, Inc., 45 A.3d 584, 589 (R.I. 2012) (quoting

Reitsma v. Pascoag Reservoir & Dam, LLC, 774 A.2d 826, 831 (R.I. 2001)). “Similarly, ‘a

claim of right may be proven through evidence of open, visible acts or declarations, accompanied

by use of the property in an objectively observable manner that is inconsistent with the rights of

the record owner.’” Drescher, 45 A.3d at 1228 (quoting Tavares v. Beck, 814 A.2d 346, 351

(R.I. 2003)). Additionally, however, we have held that the true owner can “stop the statutory

prescriptive period from running” by “affirmatively communicat[ing]” objection to the use.

Reitsma, 774 A.2d at 832 (emphasis omitted).

Here, as the hearing justice found, defendants’ claim for a prescriptive easement was

defeated by the undisputed fact that plaintiff objected to defendants’ use of the property shortly

after Service Tech began operating in its current location. The plaintiff testified that he

“aggressively policed” his property after the trucks caused damage to the diner on multiple

occasions between 1999 and 2001. He further explained that he “would get right out there and

tell them and stop them and stop trucks and policed it and they knew that.” The defendants, for

their part, did not present any evidence to refute plaintiff’s assertion that he continuously

objected to their use of his property. Thus, the hearing justice did not err in finding that

defendants lacked a reasonable likelihood of success on the merits of their claim for a

prescriptive easement, which constituted the only asserted threat to plaintiff’s claims for quiet

title and declaratory relief.

Furthermore, we are convinced that the hearing justice did not err in his determinations

regarding the remaining prongs of the preliminary injunction analysis. As for irreparable harm,

he found that the “large trucks pose a safety concern for anyone entering or exiting th[e] diner,

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driving their vehicles on the lot.” He noted the large size of the trucks compared to the diner’s

small parking area, and he found that the process of getting the trucks in and out “is an incredible

disruption, economic and safety hazard if it is allowed to continue.” In support of this finding,

he relied in part on the video that was introduced into evidence, which showed the passage of an

exceptionally large truck onto Service Tech’s premises. We are further satisfied that he

appropriately balanced the equities, finding that the “hardships are much greater on the [Geneva]

Diner than [o]n Service Tech or [ARB] * * * .” Regarding the status quo, he found that it

“would clearly be maintained by permitting [plaintiff] to enjoy the full use of [his] property

including the parking area and [his] own curb cut for [his] own customers and for [his] own use.”

Although the hearing justice’s bench decision setting forth his reasons for granting

plaintiff’s request for a preliminary injunction was somewhat scant in the analysis of each prong,

we are of the opinion that he adequately addressed the issues and did not err in his findings;

especially considering his emphasis on plaintiff’s likelihood of success on the merits and the

potential for the large trucks to cause irreparable harm to plaintiff’s business. See School

Committee of North Kingstown v. Crouch, 808 A.2d 1074, 1077 (R.I. 2002) (although the

hearing justice “did not make extensive findings; nor did he elaborate on the factors he

considered in granting a preliminary injunction,” he “evidently focused on the [petitioner’s]

likelihood of success on the merits of its claims as the lynchpin for granting a preliminary

injunction,” and, “[g]iven the centrality of that issue to th[e] case,” he did not err). As we have

previously explained, “prospective damage to a business’s good will and reputation ‘is precisely

the type of irreparable injury for which an injunction is appropriate.’” Iggy’s Doughboys, Inc.,

729 A.2d at 705 (quoting The Fund for Community Progress v. United Way of Southeastern

New England, 695 A.2d 517, 523 (R.I. 1997)).

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 Finally, we shall briefly address the defendants’ argument that the hearing justice abused

his discretion by ruling on the merits of the case rather than merely on the issue of preliminary

injunctive relief. 7 We are convinced that the hearing justice was aware throughout these

proceedings that his rulings concerned only the parties’ cross-requests for preliminary injunctive

relief. Indeed, he stated at the outset of his bench decision that the matter before the court was

the parties’ competing requests for preliminary injunctive relief, and he reminded the parties

during the hearings that he was not considering the underlying merits of their claims.

Furthermore, at the conclusion of the hearing justice’s bench decision, the plaintiff’s counsel

inquired as to the time period for the injunction, and the hearing justice responded: “Well, it

would be until further order of the Court. I assume there is an underlying lawsuit here. So, the

order will stay in effect until the complaint, underlying complaints are heard on their merits.”

We are satisfied that the hearing justice’s rulings in this matter concerned only the parties’

requests for preliminary injunctive relief and that, with the issuance of this decision, he shall

proceed in adjudicating the merits of the parties’ various claims.

IV

Conclusion

For the reasons set forth in this opinion, we affirm the order of the Superior Court. The

record of this case shall be returned to the Superior Court for a trial on the merits.

7
Specifically, defendants point to the language in the order of the Superior Court, which stated
that plaintiff had “full and rightful ownership of the property in question,” and that plaintiff had
“the right to use and control the property in question.”
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 RHODE ISLAND SUPREME COURT CLERK’S OFFICE

Clerk’s Office Order/Opinion Cover Sheet

TITLE OF CASE: Mario Gianfrancesco v. A.R. Bilodeau, Inc. et al.

CASE NO: No. 2014-12-Appeal.
(PC 13-1458)

COURT: Supreme Court

DATE OPINION FILED: April 17, 2015

JUSTICES: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

WRITTEN BY: Chief Justice Paul A. Suttell

SOURCE OF APPEAL: Providence County Superior Court

JUDGE FROM LOWER COURT:

Associate Justice Daniel A. Procaccini

ATTORNEYS ON APPEAL:

For Plaintiff: Merill J. Friedemann, Esq.

For Defendants: Kelly A. Carden, Esq.