March 22, 2019
Supreme Court
No. 2018-11-Appeal.
(PC 16-3059)
John Broccoli :
v. :
Walter Manning. :
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Supreme Court
No. 2018-11-Appeal.
(PC 16-3059)
John Broccoli :
v. :
Walter Manning. :
Present: Suttell, C.J., Goldberg, Robinson and Indeglia, JJ.
OPINION
Justice Goldberg, for the Court. This case came before the Supreme Court for oral
argument on December 5, 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 plaintiff, John
Broccoli (plaintiff or Broccoli), a pro se litigant, appeals from the Superior Court’s entry of
summary judgment in favor of the defendant, attorney Walter Manning (Manning or defendant).
After considering the parties’ written and oral submissions and after reviewing the record, we
conclude that cause has not been shown and proceed to decide the appeal at this time. For the
reasons set forth herein, we affirm the judgment of the Superior Court.
Facts and Travel
On March 12, 2013, a mortgage broker named Richard Dion (Dion) contacted defendant
and asked if he would assist plaintiff in obtaining a modification on his mortgage payments and
try to stop a foreclosure sale that was scheduled to occur on March 15, 2013, for property located
at 1483 Mineral Spring Avenue, North Providence, Rhode Island (the property). The defendant
informed Dion that it was “highly unlikely” anything could be done “at such a late stage in the
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foreclosure proceedings[,]” but he agreed to contact the mortgage company on plaintiff’s behalf.
That same day, at defendant’s request, Dion obtained a signed “Authorization Form” executed
by plaintiff at Manning Law Offices’ satellite office. The form authorized Manning Law Offices
to act as plaintiff’s designated agent to discuss options with Bay View Loan Servicing (Bay
View); according to plaintiff, “[t]he objective was to secure a more practical loan
arrangement[.]” Specifically, the authorization form allowed Bay View “to work out the terms
of [a] payment agreement with [defendant] and to cause to deliver requested documents to
[defendant] that concerns a request for payment assistance.” In addition, the authorization form
stipulated that Bay View was to “immediately cease direct contact with [plaintiff] regarding [his]
account” and required that all contact related to plaintiff’s account be referred to defendant.
Armed with the authorization, defendant contacted Bay View, only to discover that plaintiff was
not the owner of the property. Bay View declined to speak to defendant in any detail because he
did not have authorization from the true property owner and borrower, which was an entity
named Brocco Development Corporation (Brocco).1 Three days later, on March 15, 2013, the
property was sold at a public foreclosure sale.
More than three years later, on July 1, 2016, plaintiff filed a complaint, pro se, in the
Superior Court against defendant alleging breach of contract and fraud, and sought over
1
The facts in the complaint allege, albeit vaguely, that Brocco Development Corporation owned
the property located at 1483 Mineral Spring Avenue and leased all, or a portion of, the property
to Spardello’s Clothiers, a now-defunct men’s clothing store, with which plaintiff was affiliated
in some capacity. In addition, although not alleged in the complaint or provided for in the
discovery responses filed with the court, at a hearing on the parties’ cross-motions for summary
judgment, discussed in more detail infra, plaintiff’s attorney clarified that plaintiff was the sole
shareholder of Brocco Development Corporation.
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$875,000 in damages.2 The defendant, also acting pro se, filed an answer in which he denied the
allegations and asserted several affirmative defenses, including lack of standing, insufficient
service of process, and failure to state a claim upon which relief could be granted. On March 24,
2017, plaintiff moved for summary judgment and argued, in essence, that defendant breached his
fiduciary duty owed to plaintiff. The defendant filed an objection and a cross-motion for
summary judgment, in which he proffered four arguments in opposition to summary judgment
and in support of his cross-motion. Specifically, defendant argued that: (1) any claim against
defendant would arise from a claim for legal malpractice, which was barred by the three-year
statute of limitations for such claims; (2) plaintiff lacked standing to assert a cause of action
against defendant because plaintiff was not the owner or the mortgagor of the property; (3) there
was no attorney-client relationship between plaintiff and defendant; and (4) plaintiff could not
establish any damages.
A hearing on the parties’ cross-motions for summary judgment was held on October 11,
2017.3 The parties agreed to pass plaintiff’s motion and address only defendant’s motion for
summary judgment.4 After hearing argument from the parties, the hearing justice granted
2
The plaintiff also filed a complaint against defendant with this Court’s Disciplinary Counsel;
however, on April 15, 2016, that complaint was dismissed.
3
Although plaintiff filed his complaint pro se, he was represented by counsel at the hearing on
the parties’ cross-motions for summary judgment.
4
We pause to note that plaintiff seems to have filed two motions for summary judgment—the
first motion was filed on July 1, 2016, and was attached to the complaint; the second motion for
summary judgment was filed on March 24, 2017. The first motion for summary judgment that
was attached to the complaint was the operative pleading at the hearing, with no mention of the
second. Counsel for plaintiff stipulated that plaintiff had “filed a motion for summary judgment
along with his * * * initial pleading” and that it was “too early for him to do that” because the
pleadings “had not been all filed at that time.” The plaintiff’s counsel proceeded to claim that he
was not prepared to argue plaintiff’s motion for summary judgment and the motion was passed.
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summary judgment in favor of defendant.5 In doing so, the hearing justice stated that it was
difficult “to suggest this was anything other than a relationship against a professional defendant”
in light of the fact that “the complaint itself states that the defendant committed fraud as an
attorney and utilized his skill to the detriment of the plaintiff.” The hearing justice thus
concluded that the complaint was “subject to the three-year statute of limitations for legal
malpractice contained within * * * [§] 9-1-14.3.” The hearing justice next considered when that
statutory period began to run and concluded, based upon plaintiff’s answers to defendant’s
requests for admission, that plaintiff “knew the moment the foreclosure took place about the
alleged negligence[,]” and therefore plaintiff “did not bring this cause of action in a timely
fashion[.]” The plaintiff appealed.
Standard of Review
It is well settled that this Court reviews a hearing justice’s grant of summary judgment
de novo. See Credit Union Central Falls v. Groff, 966 A.2d 1262, 1267 (R.I. 2009). “We will
affirm such a decision only if after reviewing the admissible evidence in the light most favorable
to the nonmoving party, we conclude that no genuine issue of material fact exists and that the
moving party is entitled to judgment as a matter of law.” Prout v. City of Providence, 996 A.2d
1139, 1141 (R.I. 2010) (internal quotation marks omitted). Conversely, “if the record evinces a
5
The plaintiff’s complaint also alleged that defendant, or defendant’s law firm, participated in a
“scam” by allegedly purchasing the property at the foreclosure sale. When questioned by the
hearing justice about this allegation, defendant stated, several times, that he “Never, ever, ever
owned the property.” However, after further prompting, defendant eventually conceded that he
was “in the business of lending money on real estate ventures” and “lent money on this project,
but [he] never owned the property.” Instead, defendant stated that he, along with other
individuals, “liened the property for a loan [he] gave someone[.]” The hearing justice expressed
her concern about this transaction and stated, “Something doesn’t sit right with me about the fact
that you would finance a project when you had previously been asked to assist with preventing
the foreclosure.” Nevertheless, she proceeded to rule in favor of defendant. We share the hearing
justice’s concerns.
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genuine issue of material fact, summary judgment is improper and we will accordingly reverse.”
Canavan v. Lovett, Schefrin and Harnett, 862 A.2d 778, 783 (R.I. 2004).
Discussion
We note at the outset that plaintiff has not provided this Court with any meaningful
discussion of the issues on appeal as required by Article I, Rule 16(a) of the Supreme Court
Rules of Appellate Procedure, which provides: “Errors not claimed, questions not raised and
points not made ordinarily will be treated as waived and not be considered by the Court.” In
particular, plaintiff has failed to articulate how the hearing justice erred in granting defendant’s
motion for summary judgment. This Court generally deems an issue waived “when a party
simply states an issue for appellate review, without a meaningful discussion thereof.” A. Salvati
Masonry Inc. v. Andreozzi, 151 A.3d 745, 750 (R.I. 2017) (brackets and deletion omitted)
(quoting In re Jake G., 126 A.3d 450, 458 (R.I. 2015)). “A mere passing reference to an
argument, * * * without meaningful elaboration, will not suffice to merit appellate review.” State
v. Day, 925 A.2d 962, 974 n.19 (R.I. 2007); see Wilkinson v. State Crime Laboratory
Commission, 788 A.2d 1129, 1131 n.1 (R.I. 2002) (“Simply stating an issue for appellate review,
without a meaningful discussion thereof or legal briefing of the issues, does not assist the Court
in focusing on the legal questions raised, and therefore constitutes a waiver of that issue.”).
Consequently, plaintiff’s arguments are waived under this Court’s raise-or-waive rule for failure
to meaningfully develop or discuss what error was committed on the part of the hearing justice in
this case.
Nonetheless, our review of the record convinces us that the hearing justice did not err in
granting defendant’s motion for summary judgment. “General Laws 1956 § 9-1-14.3 sets forth a
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three-year statute of limitations for legal malpractice claims.” Behroozi v. Kirshenbaum, 128
A.3d 869, 872 (R.I. 2016). Section 9-1-14.3 provides, in relevant part, that:
“Notwithstanding the provisions of §§ 9-1-13 and 9-1-14, an action
for legal malpractice shall be commenced within three (3) years of
the occurrence of the incident which gave rise to the action;
provided, however, that:
“* * *
“(2) In respect to those injuries due to acts of legal malpractice
which could not in the exercise of reasonable diligence be
discoverable at the time of the occurrence of the incident which
gave rise to the action, suit shall be commenced within three (3)
years of the time that the act or acts of legal malpractice should, in
the exercise of reasonable diligence, have been discovered.”
Although plaintiff contends that a ten-year statute of limitations should apply to this “breach of
contract with fraud” claim, his contention is belied by the pleadings. The plaintiff’s complaint
alleges that defendant, as “an attorney, utilized his skills at eviction, while aware of his
responsibility to labor on the behalf of [p]laintiff,” and had “breach[ed] his * * * responsibilities,
as contractor, for [p]laintiff, officer of the Court, State of Rhode Island, and knowingly
disregarding” Rhode Island statutes. We are hard-pressed to conclude that a “breach of contract
with fraud” claim that centers on a defendant-attorney’s attempt to obtain a mortgage-
modification agreement on behalf of a plaintiff is anything but a legal malpractice claim that
arose from a professional relationship, subject to the three-year statute of limitations set forth in
§ 9-1-14.3.
Moreover, plaintiff’s contention that his “breach of contract with fraud” claim should be
subject to a ten-year statute of limitations is meritless as the record is devoid of any evidence that
a contract, express or implied, existed between the parties. This Court has previously declared
that a valid contract requires “competent parties, subject matter, a legal consideration, mutuality
of agreement, and mutuality of obligation.” DeAngelis v. DeAngelis, 923 A.2d 1274, 1279 (R.I.
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2007) (quoting Rhode Island Five v. Medical Associates of Bristol County, Inc., 668 A.2d 1250,
1253 (R.I. 1996)). Assuming, arguendo, that plaintiff has established that there are competent
parties, as set forth on the “Authorization Form,” plaintiff nevertheless has failed to establish the
remaining elements—namely, consideration, subject matter, and mutuality of agreement and
obligation. Accordingly, plaintiff has failed to demonstrate that his claim against defendant
should be subject to a ten-year statute of limitations for an action in contract or that the hearing
justice erred in applying a three-year statute of limitations in this case.
Finally, it is our opinion that the hearing justice was correct in concluding that the
statutory period for the plaintiff’s claim against the defendant began to run in March 2013. The
discovery-rule exception, codified in § 9-1-14.3(2), “requires only that the plaintiff be aware of
facts that would place a reasonable person on notice that a potential claim exists.” Sharkey v.
Prescott, 19 A.3d 62, 66 (R.I. 2011) (quoting Canavan, 862 A.2d at 784). “The discovery rule
does not require perfect crystallization of the nature and extent of the injury suffered or a clear-
cut anchoring to the allegedly negligent conduct of a defendant.” Fogarty v. Palumbo, 163 A.3d
526, 534 (R.I. 2017) (quoting Bustamante v. Oshiro, 64 A.3d 1200, 1207 (R.I. 2013)). Rather, a
legal-malpractice plaintiff is afforded three years to commence suit from “the time that the act or
acts of the malpractice should, in the exercise of reasonable diligence, have been discovered.”
Section 9-1-14.1(2). In the case at bar, the plaintiff concedes that he knew the moment the
foreclosure took place that the defendant breached any alleged duty owed to the plaintiff.
Specifically, the defendant’s requests for admission sought an admission of the truth of the
following factual statement: “It is the allegation of the Plaintiff that on the foreclosure date
Plaintiff knew Defendant committed negligence.” The plaintiff admitted the following in his
answer to that request: “Absolutely I assert with each question you ask.” We therefore conclude
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that the hearing justice correctly granted the defendant’s motion for summary judgment after
concluding that the plaintiff’s complaint, filed on July 1, 2016, was barred by the statute of
limitations, which ran on March 15, 2016.
Conclusion
For the foregoing reasons, the judgment of the Superior Court is affirmed and the record
may be remanded thereto.
Justice Flaherty did not participate.
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STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
SUPREME COURT – CLERK’S OFFICE
OPINION COVER SHEET
Title of Case John Broccoli v. Walter Manning.
No. 2018-11-Appeal.
Case Number
(PC 16-3059)
Date Opinion Filed March 22, 2019
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 Maureen B. Keough
For Plaintiff:
John Broccoli, Pro Se
Attorney(s) on Appeal
For Defendant:
Walter J. Manning, III, Pro Se
SU-CMS-02A (revised June 2016)