Sergio A. DeCurtis v. Visconti, Boren & Campbell Ltd.

June 16, 2021

Supreme Court

No. 2019-245-Appeal.
(PC 12-4078)

Sergio A. DeCurtis :

v. :

Visconti, Boren & Campbell Ltd. 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 or Email
opinionanalyst@courts.ri.gov, of any typographical or
other formal errors in order that corrections may be made
before the opinion is published.
 Supreme Court

No. 2019-245-Appeal.
(PC 12-4078)
Concurrence begins on Page 15
Concurrence begins on Page 17

Sergio A. DeCurtis :

v. :

Visconti, Boren & Campbell Ltd. et al. :

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

OPINION

Justice Long, for the Court. The plaintiff, Sergio DeCurtis (plaintiff or Mr.

DeCurtis), appeals from a partial final judgment of the Superior Court in favor of

the defendants, Visconti, Boren & Campbell Ltd. (VBC) and Richard Boren

(collectively defendants), in this action alleging that the defendants committed legal

malpractice in the drafting of Mr. DeCurtis’s antenuptial agreement and in rendering

advice related to that agreement and a postnuptial agreement. 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 after 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 vacate the

judgment of the Superior Court.
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 Facts and Procedural History

The reader may find the facts of this case somewhat familiar, as this case has

previously been before this Court. Our prior decision may be found at DeCurtis v.

Visconti, Boren & Campbell, Ltd., 152 A.3d 413 (R.I. 2017). The facts discussed

herein are only those relevant to the instant appeal.

On March 2, 2000, Mr. DeCurtis engaged VBC, the law firm that employed

Attorney Boren at the time, to draft an antenuptial agreement for him and his then-

fiancée, Michelle Tondreault. On March 22, 2000, Mr. DeCurtis and Ms. Tondreault

executed the agreement, without making any changes to VBC’s draft, and they were

married a few days later.

In 2005, Ms. Tondreault filed the first of what would be two divorce petitions

in the Family Court. The couple ultimately negotiated a settlement, and the 2005

petition was dismissed after the couple executed a postnuptial agreement, which was

drafted by Attorney Boren. In June 2010, Ms. Tondreault again filed for divorce. In

advance of trial, she filed a memorandum wherein she asserted that neither the

antenuptial agreement nor the postnuptial agreement excluded from equitable

distribution the parties’ earnings, income, or assets earned or acquired during the

marriage. Moreover, she argued that separate property, as defined in a valid

antenuptial agreement, is not “forever frozen” as separate property in light of this

Court’s opinion in Marsocci v. Marsocci, 911 A.2d 690 (R.I. 2006). Mr. DeCurtis,

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in his pretrial memorandum, countered that income and earnings received during the

marriage retain their status as separate property. He also argued that Marsocci is

distinguishable because the antenuptial agreement at issue in that case lacked a

transmutation clause, unlike the antenuptial agreement executed by Ms. Tondreault

and Mr. DeCurtis.1

The case was reached for trial on June 21, 2011. Prior to opening arguments,

the Family Court justice admitted the antenuptial and postnuptial agreements as joint

exhibits and confirmed that neither party intended to offer “any supplemental

evidence * * * indicating what the language [of the agreements] means or the

interpretation[.]” The justice then informed the parties that, under his reading of the

law and the two agreements, “income that was derived during the period of the

marriage” was not excluded from the marital estate.2 Following this pronouncement

from the Family Court justice, Mr. DeCurtis indicated that he believed that his

income would not become part of the marital estate to be divided between him and

1
Under the doctrine of transmutation, “property can be converted from nonmarital
property into marital property if changed in form and put into joint names.” Wu-
Carter v. Carter, 179 A.3d 711, 721 (R.I. 2018) (quoting Stephenson v. Stephenson,
811 A.2d 1138, 1142 (R.I. 2002)). A “transmutation clause” in an antenuptial
agreement seeks to prevent separate property from being considered marital property
and, thus, subject to equitable distribution.
2
Although both Ms. Tondreault and Mr. DeCurtis had cited Marsocci v. Marsocci,
911 A.2d 690 (R.I. 2006), in pretrial memoranda, the Family Court justice made no
reference to Marsocci, nor its impact, in providing his interpretation of the law and
the two agreements.
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Ms. Tondreault upon divorce. The justice explained to Mr. DeCurtis that that was

the “opposite” of his reading of the law, and the trial commenced. The couple agreed

to settle the matter a few days later.

Thereafter, on August 8, 2012, Mr. DeCurtis filed a three-count complaint in

the present case against defendants in Superior Court. Mr. DeCurtis alleged

professional negligence and breach of fiduciary duty against Attorney Boren and

vicarious liability against VBC for the acts of Attorney Boren. More specifically,

Mr. DeCurtis alleged that Attorney Boren had failed to draft the antenuptial

agreement to protect his assets and failed to advise him “of any risk associated with

commingling his premarital assets” with marital property.3 The defendants filed an

answer and asserted various affirmative defenses, including the defenses of

voluntary payment and failure to mitigate damages.

The parties engaged in discovery, during which a dispute arose regarding the

discoverability of antenuptial and postnuptial agreements drafted by Attorney Boren

for other clients. That issue came before this Court by way of defendants’ petition

for certiorari, which we granted, and in January 2017, we issued our decision in

DeCurtis, cited supra. As we have noted, the facts and details of that decision are

not relevant to the instant appeal and thus are not repeated here.

3
Additionally, Mr. DeCurtis alleged in his complaint that Attorney Boren owed him
a duty to “exercise the same degree of care, skill, and diligence as a reasonable,
prudent attorney acting in the same or similar circumstances.”
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 Upon remand to the Superior Court for further proceedings, Mr. DeCurtis

moved for partial summary judgment. He asked the Superior Court to decide three

issues as a matter of law. First, he asked the court to determine that Attorney Boren

was not “exonerate[d]” from his alleged malpractice in drafting the antenuptial

agreement because of a potential change in the law based on our decision in

Marsocci, cited supra, or, alternatively, to certify a question to this Court to clarify

the meaning of Marsocci. Second, plaintiff asked the court to determine, as a matter

of law, that the antenuptial agreement drafted by Attorney Boren did not contain

language to protect plaintiff’s earnings. Third, and finally, plaintiff asked the court

to determine that the voluntary-payment defense asserted by defendants had not been

recognized in Rhode Island, was the minority view, was inapplicable to this case

because the settlement payment was not voluntary, and contravened plaintiff’s duty

to mitigate his damages.

The defendants filed an objection and a cross-motion for summary judgment

on June 18, 2018. The defendants raised five arguments in support of their motion.

They argued that Attorney Boren was entitled to two forms of immunity: (1)

immunity due to a change in the law that occurred subsequent to the drafting of the

agreements and (2) judgmental immunity relative to his choice of language in the

antenuptial agreement. Additionally, defendants argued that, if provisions

protecting a spouse’s substantial assets are enforceable, a “pure construction” of the

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antenuptial agreement at issue in this case would have protected plaintiff’s assets.

The defendants also argued that one allegation in the complaint could not constitute

malpractice as a matter of law.4 Finally, defendants claimed that plaintiff was a

“voluntary payer” of a settlement and therefore had waived his right to seek

“indemnity” from defendants.

The trial justice rendered a written decision on January 28, 2019. In analyzing

the questions presented, the trial justice consolidated the various issues raised. With

respect to whether Marsocci changed the law to bar the exclusion of marital income

from equitable distribution, regardless of the existence of antenuptial or postnuptial

agreements, the trial justice declined to certify the question to this Court without an

agreed statement of facts. He also declined to interpret Marsocci without further

development of the factual record. The trial justice determined that questions

involving the voluntary-payer doctrine, proof of damages, and mitigation of

damages were not appropriate for summary judgment because further discovery was

required. Turning to the professional negligence claim and alleged immunity

defenses, the trial justice determined that the questions raised required analysis of

what duty Attorney Boren owed to Mr. DeCurtis in drafting the agreements.

4
Paragraph 35(ix) of the complaint alleged that “Attorney Boren breached his duty
to Mr. DeCurtis by * * * advising and allowing Mr. DeCurtis to make a substantial
settlement payment to Mrs. DeCurtis without first getting her to sign a property
settlement agreement[.]” The defendants did not argue this point any further in their
memorandum, except to cite a case in a footnote to support their contention.
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 The trial justice analyzed Attorney Boren’s duty by applying the ad hoc

approach discussed in our opinion in Woodruff v. Gitlow, 91 A.3d 805 (R.I. 2014).5

As part of the analysis, the trial justice determined that the antenuptial and

postnuptial agreements would have been adequate to protect Mr. DeCurtis at the

time of drafting in 2000, but stated that our opinion in Marsocci in 2006 “may” have

changed the law. The trial justice reasoned that, if he were to impose a duty on

Attorney Boren to include additional language at a time when no Rhode Island law

imposed such a duty, attorneys would be required to predict “infallibly” how courts

would interpret the documents they draft. He concluded his analysis by finding that

Attorney Boren’s duty was to draft antenuptial and postnuptial agreements that

“were in compliance with the law at the time in Rhode Island.” The trial justice

therefore declined to impose a duty on Attorney Boren to include any additional

language in those agreements and granted summary judgment in favor of defendants

5
The factors we discussed in Woodruff v. Gitlow, 91 A.3d 805 (R.I. 2014), with
respect to the determination of whether a duty is in fact present in a particular case
are:

“(1) the foreseeability of harm to the plaintiff, (2) the
degree of certainty that the plaintiff suffered an injury, (3)
the closeness of connection between the defendant’s
conduct and the injury suffered, (4) the policy of
preventing future harm, and (5) the extent of the burden to
the defendant and the consequences to the community for
imposing a duty to exercise care with resulting liability for
breach.” Woodruff, 91 A.3d at 815 (quoting Bucki v.
Hawkins, 914 A.2d 491, 495-96 (R.I. 2007)).
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“on the narrow issue of [Attorney] Boren’s duty” in drafting the antenuptial and

postnuptial agreements.

Thereafter, the parties filed a statement of agreed-upon facts with

accompanying exhibits, as well as renewed motions for partial summary judgment.6

Specifically, the parties asked the trial justice to enter partial summary judgment on

the court’s interpretation of Marsocci and the effect of that opinion on this case.7

The plaintiff also asked the trial justice to deny defendants’ motion for summary

judgment on the issue of Attorney Boren’s entitlement to judgmental immunity.

The trial justice rendered a bench decision on the renewed cross-motions for

summary judgment on April 8, 2019. The trial justice denied plaintiff’s motion and

granted defendants’ motion based on judgmental immunity. He further clarified that

his decision rested upon his interpretation of Marsocci.

Thereafter, plaintiff moved for entry of partial final judgment under Rule

54(b) of the Superior Court Rules of Civil Procedure, which the trial justice granted.

Partial final judgment was entered on April 25, 2019, and plaintiff timely appealed.

6
Prior to the statement of agreed upon facts being filed, plaintiff filed a first amended
complaint on June 25, 2018. The amended complaint is substantially similar to the
original complaint, and the amendment does not affect our decision here. The
defendants added judgmental immunity as an affirmative defense in their answer to
the amended complaint.
7
Additionally, plaintiff again argued that the trial justice should certify to this Court
the question of the interpretation of Marsocci in the context of this case.
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 Standard of Review

“We have long recognized that summary judgment is a drastic remedy * * *

and * * * should be dealt with cautiously.” Behroozi v. Kirshenbaum, 128 A.3d 869,

872 (R.I. 2016) (brackets omitted) (quoting Laplante v. Rhode Island Hospital, 110

A.3d 261, 264 (R.I. 2015)). “This Court reviews a lower court’s grant of a motion

for summary judgment de novo, employing the same standards and rules used by the

[trial] justice.” Jessup & Conroy, P.C. v. Seguin, 46 A.3d 835, 838 (R.I. 2012)

(quoting Empire Acquisition Group, LLC v. Atlantic Mortgage Co., 35 A.3d 878,

882 (R.I. 2012)). “We will affirm the grant of summary judgment only if we

conclude, after viewing the evidence in the light most favorable to the nonmoving

party, that there is no genuine issue of material fact to be decided and that the moving

party is entitled to judgment as a matter of law[.]” Id. (brackets omitted) (quoting

Empire Acquisition Group, LLC, 35 A.3d at 882). “Moreover, the party opposing a

summary-judgment motion ‘has the burden of proving by competent evidence the

existence of a disputed issue of material fact and cannot rest upon mere allegations

or denials in the pleadings, mere conclusions or mere legal opinions.’” Credit Union

Central Falls v. Groff, 966 A.2d 1262, 1267 (R.I. 2009) (quoting Lucier v. Impact

Recreation, Ltd., 864 A.2d 635, 638 (R.I. 2005)).

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 Discussion

Before the Court, Mr. DeCurtis raises two issues. First, he contends that the

trial justice erred in deciding that Attorney Boren did not have a duty to include

additional language in the antenuptial agreement. Second, he argues that the trial

justice erred by granting judgmental immunity to defendants based on Marsocci.

We address each of these contentions in turn.

A

Additional Language in Antenuptial Agreement

The plaintiff argues that the trial justice improperly determined that Attorney

Boren did not have a duty to include additional language in the antenuptial

agreement. Mr. DeCurtis contends that the question presented in the Superior Court

was whether Attorney Boren erred by omitting language that would have protected

plaintiff’s earnings from becoming marital property. However, Mr. DeCurtis asserts

that in considering that discrete question, the trial justice misconstrued Attorney

Boren’s duty; he contends that the trial justice further conflated the question of duty

with that of the standard of care by deciding that Attorney Boren was not required

to include special protective language in the agreement.

The defendants counter that the trial justice correctly determined the existence

and scope of the duty owed by Attorney Boren to Mr. DeCurtis. The defendants also

contend that the trial justice did not decide a factual question when he determined

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that Attorney Boren had not erred by drafting antenuptial and postnuptial agreements

that omitted special protective language.

We begin our analysis by noting that the existence of a duty is a question of

law. Banks v. Bowen’s Landing Corp., 522 A.2d 1222, 1224 (R.I. 1987). “Whether

there exists a duty of care running from the defendant to the plaintiff is, therefore, a

question for the court and not for the jury.” Id. “If no such duty exists, then the trier

of fact has nothing to consider and a motion for summary judgment must be

granted.” Id. at 1225. We have, however, previously recognized a duty that arises

out of the attorney-client relationship which “includes in essential part providing

competent representation to the client, including the utilization of competent legal

knowledge, skill, thoroughness and case preparation reasonably necessary both to

protect and to advance the client’s interests.” Vallinoto v. DiSandro, 688 A.2d 830,

834 (R.I. 1997).

In his first motion for partial summary judgment, Mr. DeCurtis did not seek a

determination as to the duty owed with respect to his negligence-based claim; an

analysis of the ad hoc factors under Woodruff was unnecessary.8 It was undisputed

8
Mr. DeCurtis alleged in his amended complaint that Attorney Boren owed a duty
to “exercise the same degree of care, skill, and diligence as a reasonable, prudent
attorney acting in the same or similar circumstances.” Thus, although defendants
asserted in support of their motion for summary judgment that “[i]t is undisputed by
the parties that [Attorney] Boren’s duty was to construct a prenuptial agreement
based on the circumstances that existed at the time of drafting[,]” there was no
agreement on that point.
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that Attorney Boren and Mr. DeCurtis had an attorney-client relationship; therefore,

the duty with respect to that relationship is well settled. See Vallinoto, 688 A.2d at

834.

The specific question presented in plaintiff’s motion for partial summary

judgment was whether the antenuptial agreement contained the requisite language

to protect Mr. DeCurtis’s earnings as intended. That was a question of contract

interpretation that required the trial justice to evaluate the antenuptial agreement

under our contract-analysis framework, beginning with a determination as to

whether the contract is clear and unambiguous. See In re 25 Burnside Avenue, 204

A.3d 612, 619 (R.I. 2019) (“The determination of whether a contract’s terms are

ambiguous is a question of law[.]”). However, the trial justice instead assessed the

Woodruff factors and determined that Attorney Boren had no obligation to include

additional language in the agreements. In doing so, the trial justice did not answer

the question presented, but rather decided an issue that pertains to the standard of

care—whether Attorney Boren exercised the same degree of care, skill, and

diligence as a reasonable, prudent attorney acting in the same or similar

circumstances. This was a question of fact for the jury and inappropriate for

determination on summary judgment.

Therefore, for the foregoing reasons, the summary judgment granted in favor

of defendants on the basis of the determination that Attorney Boren did not owe a

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duty to Mr. DeCurtis to include additional language in the agreements was in error

and is hereby vacated.

B

Judgmental Immunity

Second, plaintiff contends that the trial justice erred in granting judgmental

immunity in favor of defendants based on Marsocci. The defendants counter that

judgmental immunity is applicable to this case and provides a complete defense

because the state of the law changed after our decision in Marsocci in a way that

affected the enforceability of the agreements at issue in this case.9 During oral

argument before this Court, defendants contended that our decision in Scuncio

Motors, Inc. v. Teverow, 635 A.2d 268 (R.I. 1993), recognized judgmental immunity

as a valid defense in the State of Rhode Island. We disagree.

Judgmental immunity has never been recognized in Rhode Island and is not

the law in this jurisdiction. In Scuncio Motors, we held that the defendant attorney

was entitled to a directed verdict on a professional negligence claim because the

plaintiff clients had failed to prove proximate cause. See Scuncio Motors, 635 A.2d

at 269. Our decision did not turn on the question of immunity on the part of the

defendant attorney. See id.

9
We note that this Court has not determined the effect, if any, of Marsocci on the
enforceability of antenuptial agreements, and we decline to do so here.
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 Furthermore, we decline to address the question of judgmental immunity

based on the facts before us. Because we vacate the Superior Court’s grant of

summary judgment regarding Attorney Boren’s alleged negligence, it is yet to be

determined whether Attorney Boren will require the shelter such immunity may

provide, should this Court decide to adopt the principle. See 2 Ronald E. Mallen, 2

Legal Malpractice § 19:1 (Westlaw Jan. 2021 Update) (“The defense [of judgmental

immunity] is not necessary unless the lawyer made a judgmental error. Absent an

error, there is no wrong, no matter how ‘negligent’ the lawyer’s conduct.”).

Because to date we have not recognized judgmental immunity as a valid

defense in the State of Rhode Island, and because Attorney Boren’s alleged

negligence remains an issue in the case after our decision today, the grant of

summary judgment on the issue of judgmental immunity is also vacated.

Conclusion

For the reasons set forth in this opinion, we vacate the judgment of the

Superior Court. The record may be returned to the Superior Court.10

10
The Court is hopeful that the parties will continue working toward a final
resolution of this matter in the Superior Court by settlement or trial. We again
“pause to note our strong preference for ‘avoiding piecemeal appellate review by
delaying entry of judgment until all claims involving all parties are ripe for
disposition and entering judgment as to all only when that time arrives.’” Cathay
Cathay, Inc. v. Vindalu, LLC, 136 A.3d 1113, 1121 (R.I. 2016) (brackets omitted)
(quoting Metro Properties, Inc. v. National Union Fire Insurance Company of
Pittsburgh, PA., 934 A.2d 204, 207 (R.I. 2007)).
- 14 -
Justice Lynch Prata did not participate.

Justice Goldberg, concurring. I fully concur with the opinion of the

majority, but nonetheless write separately to reaffirm the longstanding practice of

the Supreme Court that, when a judgment is vacated and a case is remanded to the

trial court, we scrupulously avoid any comment or hint of a preference for its

resolution. This Court unfailingly strives to avoid placing our thumb on the scale of

justice; our “opinions * * * speak forthrightly and not by suggestion or innuendo.”

Fracassa v. Doris, 876 A.2d 506, 509 (R.I. 2005). Nor is it “the role of a trial justice

to attempt to read ‘between the lines’” of an opinion to glean any hints or previews

for the issues on remand. Id.

This Court’s exercise of jurisdiction is limited to actual, justiciable

controversies, and we “will not entertain an abstract question or render an advisory

opinion[.]” H.V. Collins Company v. Williams, 990 A.2d 845, 847 (R.I. 2010).

Because we are remanding this case to the trial court, I am mindful that we should

make scant comment about the issues that will confront the trial justice, save for our

concern that this case is nearly nine years old. The conduct complained of occurred

over two decades ago and the case has now been before this Court on two occasions.

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There have been two summary-judgment decisions since we last remanded this case

in 2017.

With those principles in mind, I simply note that the concept of judgmental

immunity for lawyers has not been recognized as a valid defense in Rhode Island

and is not properly before us.

In order to prevail in a negligence action, the plaintiff “must establish a legally

cognizable duty owed by a defendant to a plaintiff, a breach of that duty, proximate

causation between the conduct and the resulting injury, and the actual loss or

damage.” Ouch v. Khea, 963 A.2d 630, 633 (R.I. 2009) (quoting Selwyn v. Ward,

879 A.2d 882, 886 (R.I. 2005)). This Court has “repeatedly cautioned that

complaints sounding in negligence generally are not amenable to summary judgment

and should be resolved by a fact finding at the trial court * * *.” Limoges v. Nalco

Company, 157 A.3d 567, 571 (R.I. 2017) (quoting Rose v. Brusini, 149 A.3d 135,

141 (R.I. 2016)).

A defendant’s conduct in a negligence action should be analyzed in

accordance with well-settled common law principles of negligence. This requires

factfinding, not summary judgment. Limoges, 157 A.3d at 571.

Certainly, if the evidence is such that a defendant “could under no

circumstances be held to be negligent,” McIntire v. Lee, 816 A.2d 993, 1001 (N.H.

2003) (quoting Sun Valley Potatoes, Inc. v. Rosholt, Robertson & Tucker, 981 P.2d

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236, 240 (Idaho 1999)), it is the role of the trial justice to so rule as a matter of law,

in accordance with Rule 50 of the Superior Court Rules of Civil Procedure.

Accordingly, I concur in the majority decision with the aforementioned

concerns about our appellate jurisprudence.

Justice Robinson, concurring. While I certainly respect what is set forth in

the opinion of the Court and while I concur in its holding that the judgment of the

Superior Court must be vacated, I view the case at hand in a manner that differs in

some respects from the analytical appraisal of the majority. Accordingly, I join in

the Court’s judgment, but not in its opinion.1 I have concluded that the interests of

efficiency and clarity would best be served if I were to write this brief concurring

opinion.

1
I wish to echo the sentiment that is cogently expressed in footnote 10 of the
Court’s opinion to the effect that settlement of this long-brewing and complex
dispute would be in the best interest of all concerned. See Skaling v. Aetna Insurance
Co., 799 A.2d 997, 1012 (R.I. 2002) (“It is the policy of this state to encourage the
settlement of controversies in lieu of litigation.”).
This is an important, difficult, and vexing case. It potentially will require
judicial rulings on a number of issues—some being issues of first impression for this
Court. As I peruse the presently existing record, I am keenly aware that I am unable
to predict with any degree of accuracy what the ultimate result would be if this case
were to be litigated to final judgment. However, I do know that settlement is often
the most prudent course of action for both parties; there is much accumulated
wisdom in the venerable “half a loaf” maxim.
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 I agree with the Court’s view that further proceedings are necessary before

this case can be justly resolved. Whether that process will necessarily eventuate in

a trial or whether this case can be disposed of by the granting of a renewed motion

for summary judgment on the basis of affidavits and/or other permitted materials is

a subject that I need not opine upon at this juncture—although the dispositive motion

alternative does not strike me as being at all chimerical. It is my view that there are

instances when the issue of an alleged breach of a duty (which is indubitably an issue

of law) can be resolved at the summary judgment phase. See, e.g., DeNardo v.

Fairmount Foundries Cranston, Inc., 121 R.I. 440, 448, 399 A.2d 1229, 1234 (1979)

(“In Rhode Island the general rule is that negligence is a question for the jury unless

the facts warrant only one conclusion.”) (emphasis added); Bergstrom v. Noah, 974

P.2d 531, 554 (Kan. 1999) (holding that while questions of “professional negligence

should be left to the trier of fact * * * there is a recognized exception to this rule.

When, under the totality of circumstances as demonstrated by the uncontroverted

facts, a conclusion may be reached as a matter of law that negligence has not been

established, judgment may be entered as a matter of law.”). I simply do not know at

this stage in the development of the instant case whether this is such a case.

In addition, I wish to express my view that, although I certainly do not know

what will transpire on remand in this case, I would be in favor of the consideration

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by the trial justice of the doctrine of judgmental immunity2 if, as the facts are

developed, that doctrine should become potentially applicable in the context of what

2
One of the many judicial definitions of the judgmental immunity doctrine is
the following succinct sentence authored by then-Associate Justice Linda Stewart
Dalianis of the Supreme Court of New Hampshire, writing for a unanimous court,
in the case of McIntire v. Lee, 816 A.2d 993 (N.H. 2003):

“The judgmental immunity doctrine provides * * * that an
attorney will generally be immune from liability, as a
matter of law, for acts or omissions during the conduct of
litigation, which are the result of an honest exercise of
professional judgment.” McIntire, 816 A.2d at 1000.

Additionally, I would point the interested reader to the more expansive
explanation of the doctrine in the opinion authored by then-Chief Justice Linda
Copple Trout of the Supreme Court of Idaho, writing for a unanimous court, in the
case of Sun Valley Potatoes, Inc. v. Rosholt, Robertson & Tucker, 981 P.2d 236
(Idaho 1999):

“The courts have * * * held as a matter of law that an
attorney cannot be held liable for failing to correctly
anticipate the ultimate resolution of an unsettled legal
principle. * * * Other courts have stated that, in the
context of litigation, an attorney will not be held liable for
a mere error in judgment or trial tactics if the attorney
acted in good faith and upon an informed judgment. * * *
The ‘non-liability’ rule in both situations, however, is
conditioned upon the attorney acting in good faith and
upon an informed judgment after undertaking reasonable
research of the relevant legal principles and facts of the
given case.” Sun Valley Potatoes, Inc., 981 P.2d at 239-
40; see Halvorsen v. Ferguson, 735 P.2d 675, 681 (Wash.
Ct. App. 1986) (“In general, mere errors in judgment or in
trial tactics do not subject an attorney to liability for legal
malpractice. * * * This rule has found virtually universal
acceptance when the error involves an uncertain,
unsettled, or debatable proposition of law.”).
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occurred in this trying case. See, e.g., Woodruff v. Tomlin, 616 F.2d 924, 930 (6th

Cir. 1980); Crosby v. Jones, 705 So.2d 1356, 1358-59 (Fla. 1998); Sun Valley

Potatoes, Inc. v. Rosholt, Robertson & Tucker, 981 P.2d 236, 239-40 (Idaho 1999);

McIntire v. Lee, 816 A.2d 993, 1000-01 (N.H. 2003). Depending on what transpires

upon remand, this is the sort of case to which the doctrine of judgmental immunity

could apply. Importantly, there is precedent from other jurisdictions indicating that

the application of the judgmental immunity principle can, in some instances, be the

basis for the grant of summary judgment to the defendant in a legal malpractice

action. See, e.g., Crosby, 705 So.2d at 1358-59; Sun Valley Potatoes, Inc., 981 P.2d

at 239-40.

I conclude by expressing my view that there is nothing easy or self-evident

about this case. In its own way, this case is similar to what Winston Churchill

characterized as “a riddle wrapped in a mystery inside an enigma[.]”3 How that

riddle will eventually be deciphered, I do not pretend to know at this moment. My

sincere hope is that, in the end, justice will be done.

It is noteworthy that the opinion in Sun Valley Potatoes, Inc. expressly
indicates that, as of the time of its issuance (some twenty-two years ago), “[a]t least
thirteen jurisdictions addressing the issue [had] adopted the rule in some form.” Sun
Valley Potatoes, Inc., 981 P.2d at 239 n.1.
3
Winston Churchill, The Russian Enigma (BBC Broadcast Oct. 1, 1939),
available at http://www.churchill-society-london.org.uk/RusnEnig.html (last visited
June 15, 2021).
- 20 -
 STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903

OPINION COVER SHEET

Sergio A. DeCurtis v. Visconti, Boren & Campbell
Title of Case
Ltd. et al.
No. 2019-245-Appeal.
Case Number
(PC 12-4078)

Date Opinion Filed June 16, 2021

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

Written By Associate Justice Melissa A. Long

Source of Appeal Providence County Superior Court

Judicial Officer from Lower Court Associate Justice William E. Carnes, Jr.

For Plaintiff:

Stephen J. Brouillard, Esq.
Theresa L. Sousa, Esq.
Attorney(s) on Appeal
For Defendants:

Michael B. Forte, Jr., Esq.
Joseph F. Penza, Jr., Esq.

SU-CMS-02A (revised June 2020)