Supreme Court
No. 2013-101-Appeal.
(WC-09-637)
Renewable Resources, Inc. :
v. :
Town of Westerly. :
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
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corrections may be made before the opinion is published.
Supreme Court
No. 2013-101-Appeal.
(WC-09-637)
Renewable Resources, Inc. :
v. :
Town of Westerly. :
Present: Suttell, C.J., Flaherty, Robinson, and Indeglia, JJ.
OPINION
Justice Indeglia, for the Court. The plaintiff, Renewable Resources, Inc. (Renewable
Resources or plaintiff), appeals from a Superior Court order vacating a preliminary injunction
halting demolition of the Potter Hill Mill (the mill), as well as a subsequent judgment dismissing
the remaining counts of the plaintiff’s amended complaint against the defendant the Town of
Westerly (the town or defendant). On appeal, the plaintiff argues that the hearing justice abused
his discretion in failing to find a change of conditions warranting the mill’s demolition. After a
thorough review of the record and consideration of the parties’ written submissions and oral
arguments, we affirm the order and judgment of the Superior Court.
I
Facts and Travel
In the 1950s, the Potter Hill Mill, a vestige of this country’s Industrial Revolution located
on the Pawcatuck River in Westerly, ceased its operations. In 1980, with the condition of the
mill’s buildings worsening, the town sought to have it demolished, and a demolition order was
eventually issued. The demolition order was upheld by the Rhode Island Building Code
Standards Committee; and, in 1984, a Rhode Island District Court judge affirmed the order to
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demolish the mill for safety reasons. Demolition, however, did not take place. In 1992, plaintiff
purchased the mill for $50,000 “as is.” In 2006, plaintiff and the town entered into a
memorandum of agreement (MOA), in which plaintiff recognized the validity of the
condemnation order and pledged to meet a series of conditions in order to stave off demolition.
The MOA required that plaintiff fence off the property, clean up debris, and expeditiously pursue
its development plan. Further, the MOA explicitly granted the town the power to determine
whether plaintiff was in breach of the MOA’s conditions.
On August 21, 2009, aware of the mill’s continuing deterioration and plaintiff’s failure to
expeditiously pursue its development plan, the town placed a newspaper advertisement
requesting proposals for the demolition of the mill. On September 11, 2009, plaintiff responded
by filing the instant action in the Washington County Superior Court seeking a temporary
restraining order, a preliminary injunction, and a permanent injunction against the town barring
demolition of the mill’s buildings. 1 In its answer, the town alleged that plaintiff’s failure to
comply with the MOA’s requirement of due diligence was sufficient to grant “the Town the right
to condemn and * * * demolish the building.” The town also filed an objection to the requested
temporary restraining order, as well as a motion for the court to conduct a view of the mill. A
Superior Court justice subsequently granted plaintiff’s motion for a temporary restraining order,
and the parties continued the preliminary injunction hearing for more than one year while the
temporary restraining order remained in effect.
On April 26, 2011, a second Superior Court justice dismissed count 3 of the amended
complaint, which requested “a mandatory injunction ordering [the town] to forthwith conform
the zoning classification of Plaintiff’s property * * * to its comprehensive plan[.]” The hearing
1
On March 29, 2010, plaintiff filed an amended complaint, in which it added a request for
monetary damages.
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justice then entered an order effectuating an agreement between plaintiff and the town. The
order provided plaintiff with a timetable for both submission of development plans and actual
repair work for the mill, and it also provided that a preliminary injunction against demolition of
the mill would remain in effect until further notice. 2
On June 25, 2012, after two hearings on the matter before a third Superior Court justice,
an order was entered allowing quarterly inspections by the town’s building official, the issuance
of permits for demolition and reconstruction of the mill, and a viewing of the mill property by
the court. The order further scheduled a review of the case for November 16, 2012. On October
16, 2012, the hearing justice viewed the property along with the parties. A short time later, at the
end of October 2012, Hurricane Sandy 3 struck New England, wreaking havoc on what was left
of the mill. Subsequently, on November 16, 2012, the town filed an emergency motion for relief
from the preliminary injunction pursuant to Rule 60(b)(5) of the Superior Court Rules of Civil
Procedure, 4 in which it described the advanced rate of deterioration and collapse of the buildings
2
On June 17, 2011, the town filed a motion to hold plaintiff in contempt for failing to submit a
reconstruction plan and failing to repair a gravel road. While plaintiff was not held in contempt,
it was ordered to commence reconstruction and repair of the mill under the direction of a court-
appointed architect and submit a development plan to the Westerly Planning Board by October
15, 2011. When plaintiff timely filed its development plan but failed to follow through with
requests for additional information, the town again moved to hold plaintiff in contempt. This
motion was not granted.
3
Hurricane Sandy made landfall on October 29, 2012, bringing extensive damage to the Atlantic
Coast. Congress responded to the natural disaster by appropriating $9.7 billion to replenish the
National Flood Insurance Program and another $51 billion to aid victims of the storm. See
Kolbe v. BAC Home Loans Servicing, LP, 738 F.3d 432, 455 (1st Cir. 2013).
4
Rule 60(b)(5) of the Superior Court Rules of Civil Procedure provides: “On motion and upon
such terms as are just, the court may relieve a party or a party’s legal representative from a final
judgment, order, or proceeding for the following reasons: * * * the judgment has been satisfied,
released, or discharged, or a prior judgment upon which it is based has been reversed or
otherwise vacated, or it is no longer equitable that the judgment should have prospective
application[.]”
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since the summer and requested that it be allowed to demolish the buildings so that it might
prevent immediate harm to children.
At a December 11, 2012 hearing, David Murphy, the town’s building official, testified
that the buildings were beyond repair and unsafe; he added that they posed a threat to persons on
the property and in the adjacent waterway. Acknowledging the problems posed by trespassers
and children on the property, Mr. Murphy concluded that the buildings should be demolished. 5
At that same hearing, the town planner, Marilyn Shellman, testified that she had viewed the mill
twice in the past year, and that in her second visit “[t]he integrity of the buildings seem[ed] to be
worse than [on her] first viewing.” Specifically, she noted that parts of the roof as well as the
sidewalls had collapsed since her first viewing. The court also heard testimony from Bonnie
Bennett and Allison Goodsell, longtime neighbors of the mill. Ms. Bennett testified to taking
pictures of two young boys on top of the mill and, using pictures she had taken in the wake of
Hurricane Sandy, she testified that the storm brought about “a lot of further deterioration” to the
mill. Ms. Goodsell testified that she had seen many trespassers over the years, as well as that
“kids just go in there.”
On December 18, 2012, 6 an order was entered by the hearing justice “grant[ing] [the
town] relief from the current restraining order as it relates to enforcement procedures and * * *
permit[ing] [the town] to issue a demolition order to the owner of the subject property through its
5
On December 20, 2012, Mr. Murphy issued a notice of unsafe condition and order to demolish,
citing eight of the unsafe conditions listed in G.L. 1956 § 23-27.3-124.1. On January 16, 2013,
plaintiff unsuccessfully appealed the demolition order to the town’s Building Code Board of
Appeals. The plaintiff then appealed to the Rhode Island Building Code Standards Committee
pursuant to § 23-27.3-127.2.5(f). When its appeal was again denied, plaintiff filed an
administrative appeal in the Sixth Division District Court, where that case currently awaits a
decision.
6
This order was date-stamped as having been issued on December 17, 2012, but the docket sheet
lists it as having been issued on December 18, 2012.
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Building Official[.]” On January 22, 2013, he issued a written decision finding that plaintiff had
breached the MOA and, accordingly, entered an order on February 6, 2013, vacating the
preliminary injunction. 7
On February 18, 2013, plaintiff filed a notice of appeal, and, on February 19, 2013,
plaintiff filed a motion for the Superior Court to stay the order pending the outcome of its appeal
to this Court. On March 28, 2013, the town filed an objection to the motion for stay, as well as a
motion to dismiss the appeal. On April 29, 2013, the hearing justice denied plaintiff’s motion for
stay, but required the town to give notice at least ten days prior to commencing demolition of the
mill. On that same day, plaintiff voluntarily dismissed count 4 of its amended complaint with
prejudice, and the hearing justice entered a judgment denying and dismissing counts 1 and 2 of
plaintiff’s amended complaint. On April 30, 2013, plaintiff amended its notice of appeal to
include the newly entered judgment.
II
Standard of Review
We note at the outset that the town’s emergency motion for relief from the preliminary
injunction was mistakenly brought pursuant to Rule 60(b)(5). Rule 60(b)(5) “is applicable only
in instances where relief is sought from a final judgment, order, or proceeding.” Murphy v.
Bocchio, 114 R.I. 679, 682, 338 A.2d 519, 522 (1975). Because a preliminary injunction is
merely an interlocutory order, as opposed to a final judgment, Rule 60(b)(5) was erroneously
invoked. See Menard v. Woonsocket Teachers’ Guild-AFT 951, 117 R.I. 121, 128, 363 A.2d
1349, 1353 (1976) (“It is axiomatic that [a] * * * preliminary injunction is not intended as a final
determination of the merits of a controversy, but that it is intended only to continue,
7
In his written decision, the hearing justice also noted that plaintiff did not present any witnesses
at the December 11, 2012 hearing.
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approximately, the status quo until the merits of the cause can be formally adjudicated.” citing
Studley Land Co. v. Myers, 81 R.I. 426, 430-31, 103 A.2d 924, 926 (1954)).
As we previously recognized, however, “a trial justice still retains the inherent power to
modify any interlocutory judgment or order prior to final judgment.” Murphy, 114 R.I. at 682,
338 A.2d at 522 (citing 11 Wright & Miller, Federal Practice & Procedure § 2852 at 145 (1973)).
It is clear, then, that the hearing justice was justified in entertaining the town’s motion for relief
despite the fact that it was brought pursuant to Rule 60(b)(5). See Greene v. Union Mutual Life
Insurance Company of America, 764 F.2d 19, 22 (1st Cir. 1985) (acknowledging “the inherent
power of [the trial court] to afford such relief from interlocutory judgments * * * as justice
requires,” quoting Dow Chemical, USA v. Consumer Product Safety Commission, 464 F. Supp.
904, 906 (W.D. La. 1979)). See also Advisory Committee Notes to Rule 60(b) of the Federal
Rules of Civil Procedure (1946 Amendment) (“[I]nterlocutory judgments are not brought within
the restrictions of the rule, but rather they are left subject to the complete power of the court
rendering them to afford such relief * * * as justice requires.”).
“It is well settled that ‘[a] motion to vacate a judgment is left to the sound discretion of
the trial justice * * *’”; Berman v. Sitrin, 101 A.3d 1251, 1260 (R.I. 2014) (quoting Malinou v.
Seattle Savings Bank, 970 A.2d 6, 10 (R.I. 2009)); as is the grant or denial of a preliminary
injunction. Town of Coventry v. Baird Properties, LLC, 13 A.3d 614, 620 (R.I. 2011) (“[T]he
decision to grant or deny a preliminary injunction ‘rests within the sound discretion of the
hearing justice * * *.’” quoting Iggy’s Doughboys, Inc. v. Giroux, 729 A.2d 701, 705 (R.I.
1999)). Such a ruling “will not be disturbed on appeal absent a showing of abuse of discretion or
error of law.” Iddings v. McBurney, 657 A.2d 550, 553 (R.I. 1995) (citing Forcier v. Forcier,
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558 A.2d 212, 214 (R.I. 1989)). Moreover, “[t]he burden of proof is on the moving party.” Id.
(citing Forcier, 558 A.2d at 214).
III
Discussion
On appeal, plaintiff contends that the hearing justice abused his discretion in failing to
find a “substantial” change in circumstances warranting the vacating of the preliminary
injunction. In support of its argument, plaintiff points to the absence of any findings by the
hearing justice of significant deterioration between April 26, 2011, the date of the granting of the
preliminary injunction, and November 16, 2012, the date of the filing of the motion for relief. In
response, the town argues that plaintiff’s failure to fulfill the terms of the MOA as well as the
accelerated deterioration of the mill’s buildings following Hurricane Sandy were sufficient
evidence of a change in circumstances.
In a review of a trial court decision on a motion to modify a preliminary injunction, we
have previously required the petitioner to show “[a] sufficient change in circumstances” in order
to prevail. Harris v. Town of Lincoln, 668 A.2d 321, 328 (R.I. 1995) (citing Coalition of Black
Leadership v. Cianci, 570 F.2d 12, 14 (1st Cir. 1978) (emphasis added)).
As the hearing justice recounted in his written decision, the town presented a series of
witnesses at the December 11, 2012 hearing, all of whom testified to the escalation of the
dangerous condition of the mill’s buildings. Mr. Murphy, the building official, testified that his
recent visits indicated that the buildings were unsafe and on the verge of collapsing. He also
testified that plaintiff had only once sought a demolition permit, and that the application was
incomplete, which led him to believe that plaintiff was in violation of the MOA’s diligence
requirement. Ms. Shellman, the town planner, further testified to the worsening of the buildings’
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condition, as well as plaintiff’s inaction with respect to the MOA, noting that plaintiff had failed
to submit the master plan. Ms. Bennett, the neighbor, testified that recent events brought
“advanced deterioration,” which included the collapsing of walls and ceilings. She also showed
photographs of trespassers, some of whom appeared to be minors, on the property. Finally, Ms.
Goodsell, another neighbor, corroborated Ms. Bennett’s testimony regarding the presence of
children on the property.
In rejecting plaintiff’s contention that it should not be deemed in breach of the MOA, the
hearing justice declared that plaintiff’s failure to do enough work on the property to move
beyond a simple vision constituted a breach. As evidence of an abuse of discretion, plaintiff
points to the lack of any mention of a specific change in circumstances warranting vacating of
the preliminary injunction. Although the hearing justice did not specifically explain what
constituted a change in circumstance, we are in agreement that he acted within his discretion in
vacating the preliminary injunction.
In compliance with Rule 52(a) of the Superior Court Rules of Civil Procedure, 8 the
hearing justice detailed the witness testimony he found credible, notably concerning the
advanced deterioration of the mill’s buildings and plaintiff’s failure to fulfill its requirements
under the MOA. The hearing justice also considered plaintiff’s argument that the town should
have been estopped from finding that plaintiff was in breach of the MOA because the town did
not amend the applicable zoning ordinance until 2011. He rejected that argument, however,
noting that an amendment of the ordinance was not a condition of the agreement.
8
Rule 52(a) of the Superior Court Rules of Civil Procedure provides, in relevant part: “[I]n
granting or refusing interlocutory injunctions the court shall * * * set forth the findings of fact
and conclusions of law which constitute the grounds of its action. * * * It will be sufficient if the
findings of fact and conclusions of law are stated orally and recorded in open court * * *.”
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The hearing justice stressed that plaintiff’s noncompliance with the MOA was the
impetus for vacating the preliminary injunction. To that end, we are not persuaded by plaintiff’s
contention that the hearing justice’s referral to the terms of the MOA was improper. This
argument overlooks the fact that plaintiff’s request for injunctive relief was based on both
parties’ living up to the terms of the MOA. Further, the record reveals that plaintiff waived this
issue when it failed to object to the town’s invoking the terms of the MOA as a basis for vacating
the preliminary injunction. See Town of Smithfield v. Fanning, 602 A.2d 939, 942 (R.I. 1992)
(“No principle of appellate review is better settled in this state than the doctrine that this court
will not consider an issue raised on appeal that has not been raised in reasonably clear and
distinct form before the trial justice.”).
We note that the hearing justice’s finding of plaintiff’s breach was sufficient to constitute
the requisite change in circumstances. Essentially serving as an enforcement mechanism for the
MOA, the preliminary injunction was entered into with certain requirements, notably the
reconstruction and repair of the mill’s buildings. The town exposed itself to risk by agreeing to
those terms, and plaintiff’s inaction in the ensuing months resulted in further deterioration.
Between the granting of the preliminary injunction and the filing of the emergency motion for
relief, the town twice sought to hold plaintiff in contempt, but plaintiff was shown leniency on
both occasions. The plaintiff’s continued noncompliance, then, was the proverbial straw that
broke the camel’s back. See Calhoun v. United States Department of Labor, 576 F.3d 201, 214
(4th Cir. 2009) (“In the face of [the petitioner’s] repeated refusals to change his behavior, [his]
conduct * * * was simply the proverbial straw that broke the camel’s back.”). Given that
plaintiff’s noncompliance resulted in an advanced state of deterioration, we conclude that this
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breach was sufficient to constitute a change in circumstances. 9 Accordingly, we are satisfied that
the hearing justice did not abuse his discretion in granting the town’s emergency motion for
relief. 10
Finally, to the extent that the plaintiff appeals the judgment dismissing counts 1 and 2 of
its amended complaint seeking a “preliminary and permanent injunction restraining and
enjoining [the town] from * * * demolishing [the mill],” we glean no applicable argument
relating to them in its brief, and we therefore deem those issues to have been waived. See
McGarry v. Pielech, No. 2013-146-A., slip op. at 8 (R.I., filed Jan. 14, 2015) (“Even when a
party has properly preserved its alleged error of law in the lower court, a failure to raise and
develop it in its briefs constitutes a waiver of that issue on appeal and in proceedings on
remand.” citing Bowen Court Associates v. Ernst & Young, LLP, 818 A.2d 721, 728 (R.I.
2003)).
IV
Conclusion
For the foregoing reasons, the order and judgment of the Superior Court are affirmed, and
the record in this case may be remanded to that tribunal.
Justice Goldberg did not participate.
9
Although plaintiff’s proffered “substantial” change in circumstances standard was not proper,
we note in any case that the hearing justice heard and recited enough testimony to satisfy even
that standard.
10
Having concluded that the hearing justice had sufficient evidence from the testimony
presented to grant the relief requested, we do not deem it necessary to address whether children
were attracted to the property.
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RHODE ISLAND SUPREME COURT CLERK’S OFFICE
Clerk’s Office Order/Opinion Cover Sheet
TITLE OF CASE: Renewable Resources, Inc. v. Town of Westerly.
CASE NO: No. 2013-101-Appeal.
(WC-09-637)
COURT: Supreme Court
DATE OPINION FILED: March 4, 2015
JUSTICES: Suttell, C.J., Flaherty, Robinson, and Indeglia, JJ.
WRITTEN BY: Associate Justice Gilbert V. Indeglia
SOURCE OF APPEAL: Washington County Superior Court
JUDGE FROM LOWER COURT:
Associate Justice Brian P. Stern
ATTORNEYS ON APPEAL:
For Plaintiff: Kelly M. Fracassa, Esq.
For Defendant: Lauren E. Jones, Esq.
Renewable Resources, Inc. v. Town of Westerly
Combined Opinion