concurring and dissenting.
I respectfully dissent from that portion of the majority’s decision declaring that the discovery rule applies to count 1 of the plaintiffs complaint. The majority holds that the plaintiff adequately alleged that the defendant committed legal malpractice “not because [the] plaintiff did not understand that the lots would then merge, but rather because he did not advise [the] plaintiff and her husband that they could achieve their estate plan without causing the lots to merge.” (Emphasis added.) I respectfully disagree with this holding and would affirm the trial justice’s decision to grant summary judgment in favor of the defendant.
This Court has held that a “bald assertion that [factual issues] do exist is insufficient to place the [defendant] beyond the reach of summary judgment.” American Express Bank, FSB v. Johnson, 945 A.2d 297, 300 (R.I.2008) (quoting Egan’s Laundry & Cleaners, Inc. v. The Community Hotel Corp. of Newport, R.I., 110 R.I. 719, 723, 297 A.2d 348, 351 (1972) (where the affiant merely stated that he was disputing charges but failed to put forth any evidence with respect to the amount he alleged was in dispute)); see also People’s Credit Union v. Berube, 989 A.2d 91, 94 (R.I.2010) (Where the putative issue in dispute was whether the bank had accepted delivery of a deed and the defendant, “Berube[,] responded by filing an affidavit; however, the affidavit was from Berube herself, not from an employee of the credit union or anyone else who could shed light on whether the credit union accepted the deed or refused it. Berube’s mere allegations [were] insufficient to rebut the affidavit offered by the credit union.”).
In plaintiffs affidavit, she stated:
“7. [We] deeded Lot 43 to The Sharkey Family Trust because Attorney Prescott had advised [us] that in order to carry out our estate plan, all of our assets had to be conveyed to the trust.
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“17. I was not aware that Lot 43 could have been kept out of The Shar-key Family Trust and in my separate ownership until after I met with Attorney Donald Packer in *70December, 2003.” (Emphasis added.)
I do not consider this self-serving affidavit sufficient to overcome summary judgment on the crucial question of the statute of limitations, such that plaintiff is entitled to rely upon the discovery rule. The plaintiff asserts — but fails to offer even a scintilla of evidence — that the estate plan could have been accomplished without placing lot '48 in the trust. She has failed to produce any evidence relating to the goals of the estate plan or, indeed, how those goals could have been achieved without conveying lot 43 to the trust. Moreover, and determinatively for me, she has failed to produce any evidence indicating that she or her late husband would have acted differently if this unknown estate scenario had been realized.
In granting summary judgment, the trial justice correctly held:
“[I]f the discovery is * * * T didn’t find out until later that I didn’t have to do this,’ then she hasn’t, in her affidavit, come forward with admissible evidence to demonstrate some genuine dispute about that such that she’s entitled to the benefits of the discovery doctrine.
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“Even giving her credit for not having discovered the other options available to her and her husband until she visited Attorney Packer, plaintiff has failed to demonstrate the applicability or relationship of that discovery to some claim that she would have acted differently had she not been the victim of the described negligence.” (Emphasis added.)
I agree with this finding.
The majority also notes that the disputed issue of whether the plaintiff visited with Attorney Prescott in 2001 to discuss her concerns about the lot merger, as the defendant contends was memorialized by the 2001 letter from the defendant, is a “material fact[ ] to be put into the mix at a preliminary evidentiary hearing at any time in advance of trial in determining when reasonable diligence would have put a person on notice that a potential claim existed.” Although I remain convinced that the grant of summary judgment on count 1 should be affirmed, I concur in the majority’s determination that the crucial question of whether in 2001, the plaintiff visited with Attorney Prescott to discuss her concerns about the merged lots, is a material fact — indeed a dispositive fact in my opinion — to be decided by the trial justice at a preliminary evidentiary hearing. See Hanson v. Singsen, 898 A.2d 1244, 1248 (R.I.2006) (where the Court held that “[t]he application of the statute of limitations is a matter of law for the trial justice to determine”) (quoting Ashey v. Kupchan, 618 A.2d 1268, 1270 (R.I. 1993)). This Court has held that in certain instances, there will be preliminary questions of fact which should be decided by the trial justice. See Hall v. Insurance Co. of North America, 727 A.2d 667, 668 (R.I.1999) (holding that the question of whether due diligence was exercised “should be determined by a justice of the Superior Court as a preliminary issue preceding the determination of whether the statute of limitations had run prior to the addition of this defendant”) (emphasis omitted); and Roe v. Gelineau, 794 A.2d 476, 481 (R.I.2002) (holding that “[bjefore making a final ruling on a motion for summary judgment * * * a motion justice may first need to find certain preliminary facts before moving on to decide the question of law, namely, whether the statute of limitations has run against a plaintiff’).