Vincent R. Coccoli, Sr. v. Town of Scituate Town Council

June 8, 2018

Supreme Court

No. 2016-240-Appeal.
(PC 15-3539)

Vincent R. Coccoli, Sr. :

v. :

Town of Scituate Town Council 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. 2016-240-Appeal.
(PC 15-3539)

Vincent R. Coccoli, Sr. :

v. :

Town of Scituate Town Council et al. :

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

OPINION

Justice Goldberg, for the Court. This case came before the Supreme Court on

March 6, 2018, pursuant to an order directing the parties to appear and show cause why the

issues raised in this appeal should not be summarily decided. The pro se plaintiff, Vincent R.

Coccoli, Sr. (plaintiff or Coccoli),1 appeals from the entry of summary judgment in favor of the

defendants (the town or defendants).2 On appeal, the plaintiff argues that issues of material fact

remain which preclude summary judgment and that he is entitled to a trial on the merits of his

claims. After hearing the arguments of the parties, examining the memoranda submitted by the

parties, and reviewing the record, we are of the opinion that cause has not been shown and that
1
Despite the complex nature of this litigation, the plaintiff chose to proceed pro se, against the
better recommendation of the trial justice:

“This [c]ourt has on more occasions than I can remember, what I
will call countless occasions, admonished Mr. Coccoli that while
he has a right to represent himself that the matters at bar in this
case are receivership matters, were extremely sophisticated; and as
a result, he could and should obtain qualified counsel.”
2
The plaintiff named the Town of Scituate Town Council and the following individual
defendants in his complaint: (1) Charles Collins, Jr.; (2) John F. Winfield; (3) David B.
Campbell; (4) Brenda Frederickson; (5) Kathleen Knight-Bianchi; (6) William Hurry; (7) Peter
Furness in his capacity as Receiver; (8) Town of Scituate Building Official; and (9) David E.
Provonsil.
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this case should be decided without further briefing or argument. For the reasons set forth in this

opinion, we vacate in part and affirm in part the judgment of the Superior Court.

Facts and Travel

The genesis of this case is plaintiff’s persistent yet failed attempts to develop the Hope

Mill Property located in Scituate, Rhode Island (the property). The plaintiff was a member of

Hope Mill Village Associates, LLC (HMVA). In December 2006, the Scituate Zoning Board of

Review granted HMVA conditional approval for dimensional relief and special-use permits to

allow for the redevelopment of the property. One of the conditions required HMVA to obtain

approval from the Scituate Town Council, the West Warwick Sewer Authority, and the Rhode

Island Department of Environmental Management (DEM) for a municipal sewer connection

from the property to the West Warwick Regional Sewer System. At a regular meeting of the

town council held on April 12, 2007, the town council voted to approve the sewer connection,

pending receipt of a Memorandum of Understanding (MOU) from HMVA. The minutes of that

meeting reflect the vote as follows:

“After lengthy discussion between the Council, Mr. Robinson and
Mr. Geremia, and members of the audience * * * motion was made
by Councilman Salisbury, seconded by Councilman Collins, and
voted by consent agreement to grant approval of the 40,000 gallon
capacity per day, contingent upon receiving a document in writing
from Hope Mill Village Associates within 10 days, outlining the
specifics previously discussed:

“Extend the sewer connections to Hope Sanitary Associates, Hope
Elementary School, Hope Jackson Fire Dept., the Police Station,
and to upfront the cost of the Town’s portion of the interceptor.

“Any representation made by the Developer regarding the Town of
Scituate, should be accurate and reflect what was discussed at this
meeting.

“Motion made by Councilman Salisbury, seconded by Councilman
Collins and voted by consent agreement to confer with Coventry

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 and West Warwick to ascertain what their intentions are regarding
this upgrade, and to pursue an agreement that would share the
costs. The contact should be done by David Provonsil and Legal
Counsel.”

In July 2007, an MOU was executed between plaintiff and the town. The MOU was signed by

the town council president, contained an official town seal, and was recorded in the land

evidence records. Under the MOU, plaintiff agreed to “design, procure approvals for, and cause

to construct a new sewer line * * *.”

By 2010, the property became part of a bankruptcy proceeding; and, in January 2010, the

bankruptcy trustee sold the property to New England Development R.I., LLC, which filed

receivership proceedings in August 2010. The plaintiff and two other individuals executed a

purchase and sale agreement with the receiver with respect to the property, but they defaulted

and the receiver terminated the agreement. Subsequently, plaintiff individually executed a

purchase and sale agreement for the property, but he defaulted again and the agreement was

terminated. In 2014, plaintiff individually executed a third purchase and sale agreement for the

property; that agreement was also terminated. In January 2016, the Superior Court approved the

receiver’s petition to sell the property to BMP, LLC.

On August 13, 2015, plaintiff filed a pro se complaint against defendants, alleging

promissory estoppel and breach of oral contract, breach of confidentiality pertaining to

proprietary information, tortious interference with a contract, and fraudulent misrepresentation.

The defendants moved for summary judgment on April 20, 2016, arguing that (1) defendants did

not breach the MOU because the town never approved the MOU and, further, that there was no

evidence that plaintiff suffered financial harm; (2) plaintiff’s claim under § 552a(b) of the

Privacy Act of 1974 had no merit because federal law was not applicable to defendants and there

was no evidence that defendants disclosed plaintiff’s personal information; (3) there was no

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evidence that the town council had intentionally interfered with the purchase and sale agreement

plaintiff had executed; and (4) plaintiff’s fraudulent misrepresentation claim was improper

because it was based on the conduct of a nonmunicipal fire chief, who was not a town employee.

The plaintiff objected to defendants’ motion, and for the first time raised the argument that

defendants violated the Rhode Island Uniform Trade Secrets Act,3 G.L. 1956 chapter 41 of title

6. The defendants’ motion for summary judgment was heard on July 11, 2016. At the outset, the

trial justice noted what he characterized as plaintiff’s “checkered” history:

“All of the claims evolve out of the plaintiff’s efforts over many
years to develop, redevelop, the so-called Hope Mill. The history,
recent history of the Hope Mill, insofar as judicial proceedings are
concerned, is checkered. It has been the subject of receivership
proceedings, bankruptcy proceedings, and receivership
proceedings again.

“A somewhat common factor running through it has been the pro
se plaintiff here. In other circumstances, this [c]ourt has suggested
or held that Mr. Coccoli’s life is intertwined, to a very great extent,
with his desire and his efforts to rehab the mill for multifamily
residential purposes primarily, a somewhat monumental task at this
point.”

The trial justice granted summary judgment in favor of defendants on all four counts of

plaintiff’s complaint. He first addressed the MOU and found that it was not a binding

agreement:

“The [c]ourt cannot find that that agreement is binding on the
defendants. It was not specifically approved by the council, it

3
The trial justice correctly stated that plaintiff erroneously raised the Rhode Island Uniform
Trade Secrets Act through his objection to defendants’ motion for summary judgment and that
the proper avenue for plaintiff to assert a new claim would have been through amending his
complaint:

“In an effort to attempt to rehabilitate his position, Mr. Coccoli
seeks to invoke certain state statutes, but he did that not through
the means of seeking to amend his complaint, he just makes a bald
statement in his memorandum and that does not suffice.”
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 contained no terms; and as a matter of fact, to this day things
contemplated there have not occurred.”

The trial justice next addressed plaintiff’s breach of confidentiality claim:

“Mr. Coccoli seeks to invoke certain state statutes, but he did that
not through the means of seeking to amend his complaint, he just
makes a bald statement in his memorandum and that does not
suffice. The complaint speaks to specific legislation, specific
federal laws that do not touch the Town of Scituate.”

With respect to plaintiff’s contractual interference claim, the trial justice stated:

“Although the complaint was that the council was rude to Mr.
Coccoli and his partner because some members of the council left
the meeting apparently at a time when Mr. Coccoli or his partner
were late. But whether late or not, whether they left the meeting or
not, that’s not grounds for interference with a contractual relation
and the failure to enter into a tax stabilization agreement. The
town has no obligation to enter into such agreements. That’s a
matter of legislative determination.”

Finally, the trial justice addressed plaintiff’s fraudulent misrepresentation claim, stating:

“The [c]ourt searched the record and fails to find who * * * made
representation. Discovery seemed to indicate that the claims
predicated on the fact that a non-municipal in the sense of non
Scituate fire chief signed a document for the department of
environmental management which had printed on the face of it that
it was not binding upon the Town and did not constitute notice to
the Town. The fire chief was a fire district chief, not a town
official.”

On July 20, 2016, plaintiff moved to vacate the entry of summary judgment, arguing that he

never received a copy of defendants’ June 13, 2016 reply memorandum prior to the summary-

judgment hearing. A hearing on plaintiff’s motion was held on July 22, 2016, and the trial

justice denied the motion. Final judgment entered for defendants on that same date. The

plaintiff timely appealed.

On appeal, plaintiff contends that the trial justice erred by granting summary judgment

because there exist numerous issues of material fact. He also contends that the trial justice

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granted summary judgment in error in light of the fact that plaintiff did not receive defendants’

reply memorandum until the summary-judgment hearing. Finally, plaintiff reasserts that he and

the town have an enforceable contract.

Standard of Review

“[T]his Court reviews a grant of summary judgment de novo.” Sullo v. Greenberg, 68

A.3d 404, 406 (R.I. 2013) (quoting Sacco v. Cranston School Department, 53 A.3d 147, 149-50

(R.I. 2012)). Further, “[s]ummary judgment is appropriate when, viewing the facts and all

reasonable inferences therefrom in the light most favorable to the nonmoving party, the court

determines that there are no issues of material fact in dispute, and the moving party is entitled to

judgment as a matter of law.” Key v. Brown University, 163 A.3d 1162, 1168 (R.I. 2017)

(quoting Delta Airlines, Inc. v. Neary, 785 A.2d 1123, 1126 (R.I. 2001)). “Although summary

judgment is recognized as an extreme remedy, * * * to avoid summary judgment the burden is on

the nonmoving party to produce competent evidence that ‘prove[s] the existence of a disputed

issue of material fact[.]’” Sullo, 68 A.3d at 407 (quoting Mutual Development Corp. v. Ward

Fisher & Co., 47 A.3d 319, 323 (R.I. 2012)).

Analysis

The plaintiff first contends that the MOU is a binding contract that the town subsequently

breached. In order to prove a breach of contract claim, “the plaintiff must prove both the

existence and breach of a contract, and that the defendant’s breach thereof caused the plaintiff’s

damages.” Fogarty v. Palumbo, 163 A.3d 526, 541 (R.I. 2017). It is well settled that “the

determination of whether a contract exists is a question of law that this Court reviews de novo.”

Nonnenmacher v. City of Warwick, 722 A.2d 1199, 1202 (R.I. 1999). “The long-recognized

essential elements of a contract are ‘competent parties, subject matter, a legal consideration,

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mutuality of agreement, and mutuality of obligation.’” Rhode Island Five v. Medical Associates

of Bristol County, Inc., 668 A.2d 1250, 1253 (R.I. 1996) (quoting Black’s Law Dictionary 322

(6th ed. 1990)).

The trial justice rendered a bench decision in which he found that the MOU was not

enforceable:

“[T]he minutes of that meeting, which appears as an exhibit to Mr.
Coccoli’s papers, make it abundantly clear to the [c]ourt that there
was no final agreement with respect to that. And in fact, the so-
called memorandum of understanding upon which he bases much
of his argument against the grant of summary judgment with
respect to Count I had not been prepared, had not been exhibited to
the council, and the council consistent with the affidavit from the
town clerk did not pass approval of the memorandum of
understanding. And yet, in a subsequent exhibit appended to Mr.
Coccoli’s papers which deals with some of the same issues, the
town solicitor suggests that the document that had been filed on the
real estate records was something that was going to run with the
land, at least in his opinion.

“The [c]ourt cannot find that that agreement is binding on the
defendants. It was not specifically approved by the council, it
contained no terms; and as a matter of fact, to this day things
contemplated there have not occurred.”

The defendants argued, and the trial justice agreed, that because there was not a second vote of

the council to reaffirm the MOU, the contract is void. We disagree. It is clear that the council

voted to approve the sewer connection contingent upon receipt of an MOU from HMVA, and

that contingency was met. As set out above, the minutes of the April 12, 2007 town council

meeting reflect this vote:

“[M]otion was made by Councilman Salisbury, seconded by
Councilman Collins, and voted by consent agreement to grant
approval of the 40,000 gallon capacity per day, contingent upon
receiving a document in writing from Hope Mill Village
Associates within 10 days, outlining the specifics previously
discussed:

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 “Extend the sewer connections to Hope Sanitary Associates, Hope
Elementary School, Hope Jackson Fire Dept., the Police Station,
and to upfront the cost of the Town’s portion of the interceptor.

“Any representations made by the Developer regarding the Town
of Scituate, should be accurate and reflect what was discussed at
this meeting.

“Motion made by Councilman Salisbury, seconded by Councilman
Collins and voted by consent agreement to confer with Coventry
and West Warwick to ascertain what their intentions are regarding
this upgrade, and to pursue an agreement that would share the
costs. The contact should be done by David Provonsil and Legal
Counsel.” (Emphasis added.)

Thereafter, the town and legal counsel for HMVA prepared a detailed MOU that was drafted on

the letterhead of the town’s solicitor, signed by town council president Robert Budway and

plaintiff, notarized, adorned with the official town seal, and recorded in the land evidence

records. After the MOU was executed, plaintiff spent approximately $2 million to begin

infrastructure and engineering on the project, in furtherance of the MOU. The agreement as set

forth in the vote of the council and the MOU is binding upon the town.

The facts in the record before us establish that the council voted to approve by consent

agreement the sewer connection, contingent upon receiving an MOU—which was in fact later

executed and recorded in the land evidence records—and that there was subsequent part

performance under the MOU. See Richard v. Richard, 900 A.2d 1170, 1175 (R.I. 2006) (holding

that “any partial performance must unequivocally indicate the existence of the purported oral

agreement”). We are of the opinion that the facts presented establish that a contract was

formed—which is a question of law. In the case at bar, there is no contention that either party

was not competent to enter into an agreement. See Rhode Island Five, 668 A.2d at 1253. The

MOU addressed the subject matter of the contract in depth, and evinced a legal consideration and

mutuality of obligation between the parties: in exchange for authorizing the use of 40,000

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gallons per day of the town’s reserve sewer capacity, plaintiff was obligated to design, procure

approvals for, and cause to be constructed a new sewer line. See id. Finally, by signing the

MOU and notarizing the document, the parties mutually agreed on the terms. See id.

Accordingly, we vacate the judgment of the Superior Court granting summary judgment in favor

of defendants on Count I of plaintiff’s complaint.

We now briefly address plaintiff’s second claim, that defendants violated the Privacy Act

of 1974 by “releas[ing] confidential proprietary information, including appraisals, architectural,

engineering and survey work without permission.” The trial justice correctly identified this

claim as misplaced:

“The second cause of action involves the so-called privacy act.
That act is a federal statute. And much case law has been cited by
defendants making it abundantly clear that it applies to federal
agencies and not to state agencies or individuals.”

It is well settled that “the Privacy Act is specifically limited to actions against agencies of the

United States government.” Burch v. Pioneer Credit Recovery, Inc., 551 F.3d 122, 124 (2d Cir.

2008). Moreover, “[t]he civil remedy provisions of the [Privacy Act] do not apply against

private individuals, * * * state agencies, * * * private entities, * * * or state and local officials[.]”

Unt v. Aerospace Corp., 765 F.2d 1440, 1447 (9th Cir. 1985). “[T]he [Privacy] Act [of 1974]

imposes limitations only on agencies of the federal government.” Williams v. New York City

Department of Education ex rel. City School District, No. 12 Civ. 8518, 2013 WL 5226564,

at *15 (S.D.N.Y. Sept. 17, 2013). In the case at bar, we are dealing with a local town council

and town officials, not the federal government. Accordingly, the trial justice properly granted

summary judgment in favor of defendants on Count II of plaintiff’s complaint.

In Count III of plaintiff’s complaint, Coccoli alleged that defendants engaged in tortious

interference with a contractual relationship—specifically, his purchase and sale agreement with

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the receiver. The plaintiff avers before this Court that “but for the town’s interference,

[p]laintiff’s expectations regarding his proposed development would have been realized.” This

Court has held that:

“In order to establish a claim for tortious interference with a
contractual relationship, plaintiffs must establish the following four
elements: (1) [T]he existence of a contract; (2) the alleged
wrongdoer’s knowledge of the contract; (3) his [or her] intentional
interference; and (4) damages resulting therefrom.” Fogarty, 163
A.3d at 538 (quoting Belliveau Building Corp. v. O’Coin, 763
A.2d 622, 627 (R.I. 2000)).

The plaintiff alleged in his complaint that he had secured funding for the development of the

property that had since gone into receivership and had submitted a deposit to the receiver in June

2014. The crux of plaintiff’s claim is that the town council took actions that made the property

“unappealing to any potential investor or buyer” and held closed-session meetings with plaintiff

and investors that were “frustrating and disappointing” and allegedly resulted in the loss of funds

for the project. Finally, plaintiff contends before this Court that the town solicitor “demonstrated

an obvious intent to interfere with plaintiff[’s] legitimate expectancy of developing the * * *

property.” The plaintiff’s allegations are based in part on his assertions that the town council

kept him waiting at a meeting, members of the council left the meeting when plaintiff and his

business partner were late, and one town council member made comments about the property

that plaintiff interpreted as rude. The plaintiff also alleged that the town council interfered with

his purchase and sale agreement by failing to enter into a tax stabilization agreement.

Our careful review of the record reveals that plaintiff did not submit a copy of the

purchase and sale agreement to defendants. There is nothing in the record to suggest that

defendants were even aware of the alleged contract plaintiff executed with the receiver to

purchase the property. See Fogarty, 163 A.3d at 538. There is also an absence of any evidence

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suggesting that defendants intended to interfere with the contract, or that plaintiff suffered

damages as a result of defendants’ interference. See id. Moreover, the trial justice correctly

found that the town was not obligated to enter into a tax stabilization agreement with plaintiff

because that is a matter of legislative discretion. Based on the evidence presented, we cannot

conclude that defendants intentionally interfered with plaintiff’s alleged contract to purchase the

property from the receiver. We conclude that the trial justice properly granted summary

judgment in favor of defendants on plaintiff’s claim for tortious interference with a contractual

relationship.

Finally, plaintiff’s claim in Count IV of his complaint sounds in fraudulent

misrepresentation. To establish a claim for fraudulent misrepresentation, a plaintiff must prove

“not only that the defendant had an intention to deceive, but the complainant also must present

sufficient proof that the party detrimentally relied upon the fraudulent representation.” Asermely

v. Allstate Insurance Co., 728 A.2d 461, 464 (R.I. 1999). The plaintiff alleges that he entered

into an agreement with the town on November 1, 2011, for the environmental cleanup of an

underground storage tank leak, and that this cleanup cost plaintiff approximately $141,000. The

plaintiff contends that a closure application for the cleanup was submitted to DEM’s Division of

Waste Management and contained the signature of the receiver and Donald Campbell, the Hope

Jackson fire chief. Again, at the summary-judgment hearing, the trial justice stated:

“The [c]ourt searched the record and fails to find who supposedly
made a representation other than—well, the [c]ourt failed to find
who made a representation. Discovery seemed to indicate that the
claims predicated on the fact that a non-municipal in the sense of
non Scituate fire chief signed a document for the department of
environmental management which had printed on the face of it that
it was not binding upon the Town and did not constitute notice to
the Town. The fire chief was a fire district chief, not a town
official.”

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 Notwithstanding the fact that the Hope Jackson fire chief is the chief of a nonmunicipal,

volunteer fire department, and not a town official, the plaintiff has failed to present a scintilla of

evidence of any representation from the town, or of the plaintiff’s detrimental reliance upon such

a representation. Moreover, the following disclaimer is contained in the DEM closure

application:

“This signature, however, does not serve as notice to the city/town,
does not guarantee city/town approval, and does not relieve you of
your obligations to other applicable city/town officials. Any
violation, deficiency or requirement which may have been
overlooked is also subject to correction under the provision of any
applicable code.” (Emphasis added.)

The record before us simply is devoid of any representations from the town that would induce

the plaintiff to engage in environmental cleanup on the property. The only evidence the plaintiff

proffered was a signature of a nonmunicipal fire chief, who is not a town official. Accordingly,

we conclude that the trial justice properly granted summary judgment in favor of the defendants

on Count IV of the plaintiff’s complaint.

Conclusion

For the reasons set forth herein, we vacate that portion of the judgment of the Superior

Court granting summary judgment on Count I of the plaintiff’s complaint. We affirm the

judgment of the Superior Court dismissing Counts II, III, and IV of the plaintiff’s complaint.

The papers may be returned to the Superior Court.

Justice Flaherty did not participate.

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STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS

SUPREME COURT – CLERK’S OFFICE

OPINION COVER SHEET

Vincent R. Coccoli, Sr. v. Town of Scituate Town
Title of Case
Council et al.
No. 2016-240-Appeal.
Case Number
(PC 15-3539)
Date Opinion Filed June 8, 2018

Justices Suttell, C.J., Goldberg, Robinson, and Indeglia, JJ.

Written By Associate Justice Maureen McKenna Goldberg

Source of Appeal Providence County Superior Court

Judicial Officer From Lower Court Associate Justice Michael A. Silverstein
For Plaintiff:

Vincent Coccoli, Pro Se

For Defendants:
Attorney(s) on Appeal
Patrick K. Cunningham, Esq.
Michael DeSisto, Esq.
David M. D’Agostino, Esq.

SU-CMS-02A (revised June 2016)