Federal National Mortgage Association v. Marsha S. Jacavone

Supreme Court

No. 2019-293-Appeal.
(KD 18-119)

Federal National Mortgage :
Association

v. :

Marsha S. Jacavone. :

ORDER

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. The defendant, Marsha S. Jacavone, appeals pro se from a

Superior Court order dismissing her appeal from a District Court judgment for

possession in favor of the plaintiff, Federal National Mortgage Association, and

remanding the case to the District Court. On appeal to this Court, the defendant

contends that the trial justice erred in dismissing the appeal because, she submits,

she did not receive a ninety-day notice of mortgage foreclosure and, further, that

the plaintiff unreasonably refused to accept her June 2019 use and occupancy

payment. After considering the parties’ written and oral submissions, we conclude

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that cause has not been shown and proceed to decide the appeal at this time.1 For

the reasons set forth herein, we affirm the order of the Superior Court.

This dispute arises from an action for possession instituted by plaintiff in the

District Court. The plaintiff alleged that it was the owner, by virtue of a

foreclosure deed, of property located at 200 Shun Pike, Johnston, Rhode Island.

The plaintiff alleged that defendant resided at the property after the foreclosure and

that plaintiff had sent a notice of termination directing defendant “to vacate and

remove property and personal possessions from the premises * * * and deliver

control of the premises to” plaintiff. When defendant failed to vacate the property,

plaintiff sought a judgment for possession and damages for defendant’s use and

occupancy from June 1, 2017, onward.

On February 2, 2018, after a District Court nonjury trial, a judgment for

possession in favor of plaintiff was entered, and damages in the amount of $1,300

per month for defendant’s use and occupancy also was awarded. The defendant,

appearing pro se, timely appealed the District Court’s decision to the Superior

Court. However, she failed to pay rent on a timely basis, an unfortunate error that

was fatal to her appeal.

1
After oral argument, this Court granted defendant’s motions to file rebuttal
argument; she contended that during her presentation at oral argument she missed
the opportunity to do so. We consider the arguments made in those motions as part
of defendant’s oral argument presentation.
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In the Superior Court, plaintiff moved for summary judgment, requesting

that the court, inter alia, affirm the District Court judgment for possession. At a

June 7, 2019 hearing, plaintiff argued that defendant had failed to pay the June

2019 use and occupancy fee, when due, on the first of the month.2 The defendant

responded that her payment was “in the mail” and that she was “going to send it

out.”

The Superior Court justice determined that the payment was “due on the

first[,]” meaning “[i]t has to be paid on the first and mailing it on the first isn’t

sufficient. It has to be delivered. It has to be received by the first.” Thus, the trial

justice found in the order dismissing defendant’s appeal that she “failed to meet the

requirements of G.L. 1956 § 34-18-52”—which requires a tenant to pay rent

during the pendency of an appeal—and accordingly dismissed her appeal and

remanded the matter to the District Court. The defendant, appearing pro se,

appealed the Superior Court’s decision to this Court.

This appeal is not properly before the Supreme Court. A party who fails to

pay rent during the pendency of an appeal and “has suffered dismissal of [the]

pending appeal * * * is not permitted to appeal that dismissal to this Court. Rather,

the party must petition this Court for a writ of certiorari.” City of Providence v.

2
The record reflects that defendant had previously made late payments and that
plaintiff accepted those payments. This was confirmed at oral argument by
counsel for plaintiff, who admitted that late payments from defendant were
accepted more than six or seven times.
-3-
S & J 351, Inc., 693 A.2d 665, 666 n.2 (R.I. 1997).3 Here, defendant sought

review of the Superior Court order not by a petition for writ of certiorari, but by

filing a notice of appeal. This error failed to properly invoke the jurisdiction of the

Supreme Court. Accordingly, we conclude that any challenge of the June 7, 2019

order of the Superior Court is not properly before this Court.

Notwithstanding this infirmity and mindful that defendant is self-

represented, we proceed to discuss the principles of law relevant to the issues she

raised. Section 34-18-52 of the general laws “requires that a tenant * * * shall

promptly pay rent during the pendency of an appeal.” Chalet Nominee Trust v.

Ryan, 672 A.2d 464, 465 (R.I. 1996) (mem.). The consequences for failure to

promptly pay rent during the pendency of an appeal are designed to be expeditious,

mandatory, and final. The court “shall, without any trial on the merits, * * * enter

an order for the entry of judgment * * * and from that order there shall be no

appeal.” Section 34-18-53 (emphasis added). As this Court has previously noted,

“[t]his section clearly provides for the dismissal of an appeal upon a showing by

the landlord of nonpayment of rent. It is mandatory and contains no provisions for

the exercise of discretion concerning the circumstances of nonpayment[.]” Russo v.

Fleetwood, 713 A.2d 775, 776 (R.I. 1998). Accordingly, the trial justice was

3
Although City of Providence v. S & J 351, Inc., 693 A.2d 665 (R.I. 1997)
addressed G.L. 1956 § 34-18.1-19, which concerns commercial properties, see City
of Providence, 693 A.2d at 666, we conclude that the relevant statutory language is
identical to that found in G.L. 1956 § 34-18-53.
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correct in dismissing defendant’s appeal upon determining that she had failed to

pay the June 2019 use and occupancy fee as of the June 7, 2019 hearing date, and

any prior course of conduct whereby plaintiff accepted late payments was

immaterial to the trial justice’s decision; the trial justice had no discretion to rule

otherwise.4

For the foregoing reasons, we deny and dismiss the defendant’s appeal. The

order entered in the Superior Court is affirmed. The papers may be remanded to

the Superior Court.

Entered as an Order of this Court this 3rd day of June, 2021.

By Order,

/s/
_________________________________
Clerk

4
The defendant argues that § 34-18-52 does not require the payment to be made on
the first of the month and, accordingly, she contends that she was entitled to make
the payment after the June 7, 2019, hearing. While she is correct that the statute
does not provide a particular day of the month by which a tenant must remit a
monthly use and occupancy payment, the statute does provide that payment is
required “at such times * * * as rent would be due and payable were the action not
* * * pending.” Section 34-18-52. Here, plaintiff’s complaint requested “damages
for * * * [d]efendant’s use and occupancy of the subject premises from June 1,
2017 until the date * * * [d]efendant is ordered to vacate the property,” and the
District Court entered judgment in favor of plaintiff, with a monthly use and
occupancy fee of $1,300 due per month. Accordingly, defendant was obligated to
make the use and occupancy payment on June 1, 2017, and on the first day of each
month thereafter, during the pendency of her appeal. Thus, we discern no error
with the trial justice’s decision to dismiss defendant’s appeal for nonpayment of
rent.
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STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903

ORDER COVER SHEET

Federal National Mortgage Association v. Marsha S.
Title of Case
Jacavone.
No. 2019-293-Appeal.
Case Number
(KD 18-119)

Date Order Filed June 3, 2021

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

Source of Appeal Kent County Superior Court

Judicial Officer from Lower Court Associate Justice Richard A. Licht

For Plaintiff:

Paul G. Manning, Jr., Esq.
Attorney(s) on Appeal
For Defendant:

Marsha S. Jacavone, Pro Se

SU-CMS-02B (revised June 2020)