Francesco Scotti v. Matthew Mimiaga

Supreme Court

No. 2023-91-Appeal.
(PC 21-4667)

Francesco Scotti :

v. :

Matthew Mimiaga. :

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 (401) 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. 2023-91-Appeal.
(PC 21-4667)

Francesco Scotti :

v. :

Matthew Mimiaga. :

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

OPINION

Justice Robinson, for the Court. The plaintiff, Francesco Scotti, appeals

from a March 13, 2023 amended order of the Superior Court, granting the motion

for summary judgment filed by the defendant, Matthew Mimiaga, and ordering Mr.

Scotti to release a notice of lis pendens that had been recorded with respect to a

certain parcel of real property. Mr. Scotti contends that the hearing justice erred in

granting the motion for summary judgment because genuine issues of material fact

remained regarding: (1) whether the option agreement was supported by

consideration; (2) whether Mr. Scotti had properly and in a timely manner exercised

the option to repurchase the property and whether there had been a waiver of certain

deadlines; and (3) whether an essential term of the option agreement had been

modified.

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For the reasons set forth in this opinion, we vacate the amended order and the

judgment of the Superior Court.

I

Facts and Travel

This action involves a contract to sell real property located at 300 Benefit

Street in Providence, Rhode Island (the property). We have primarily derived the

facts of this case from the complaint filed by Mr. Scotti seeking specific performance

of an option agreement between him as optionee and Mr. Mimiaga as optionor,

which agreement was part of a somewhat complicated real estate transaction that

was initially consummated in 2015 and then underwent some adjustments in the

ensuing years. Additional facts have been derived from (1) the exhibits attached to

Mr. Mimiaga’s memorandum in support of his motion for summary judgment

(including inter alia Mr. Mimiaga’s deposition) and (2) the affidavit of Mr. Scotti

and the exhibits attached thereto, which were filed in the Superior Court on October

11, 2022. We relate below the salient facts set forth in those several documents.

It is undisputed (1) that, at the time when the parties first began negotiations

for the sale of the property, Mr. Scotti was the owner of the property; and (2) that in

August of 2015 he sold the property to Mr. Mimiaga. In addition, Mr. Scotti has

averred that he “financed the purchase” of the property and that Mr. Mimiaga

executed a promissory note to him in the amount of $870,000 on August 13, 2015,

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on which date the property was conveyed to Mr. Mimiaga. Pursuant to the terms of

the promissory note, Mr. Mimiaga agreed to make Mr. Scotti monthly, interest-only

payments of $3,625 from September 1, 2015 until August 1, 2020, on which date the

balance of the principal would be due.

Mr. Scotti alleged in his complaint that, as “part of the same transaction,” Mr.

Mimiaga granted him an option to repurchase the property in five years for $900,000

(the option agreement)—said option to be exercised before July 1, 2020. It was

further Mr. Scotti’s allegation that he notified Mr. Mimiaga in writing—by mailing

a handwritten letter to him on June 1, 2020—that he was exercising his option to

repurchase the property. Mr. Scotti further asserted that, due to issues largely

relating to COVID-19, Mr. Mimiaga several times requested an extension of the

length of time during which he could occupy the property.

During his deposition, Mr. Mimiaga testified that he was personally and

actively involved in negotiations with Mr. Scotti for the purchase of the property,

which negotiations took place at various times between May and August of 2015.

In that deposition, Mr. Mimiaga testified that the transaction was initially structured

as a purchase with Mr. Scotti providing the financing; he also stated that Mr. Scotti

“asked to add an option.” Mr. Mimiaga conceded in his deposition testimony that

Mr. Scotti’s request for an option was made “months before” the actual closing on

the property. He added that he was unsure whether a purchase and sales agreement

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was signed before the closing, but he indicated that he had never seen a signed copy

of such an agreement. It was further Mr. Mimiaga’s testimony that the parties agreed

on $900,000 as the purchase price for the property.1

Mr. Mimiaga testified that he never received the June 1, 2020 handwritten

letter from Mr. Scotti. In any event, the record reflects that there was communication

between the parties on or about June 4, 2020. At that time, Mr. Scotti forwarded to

Mr. Mimiaga an e-mail that he had received from the owner of a piece of property

near the Benefit Street property seeking permission to trim some overhanging trees.

In addition to forwarding the e-mail from the neighboring property owner, Mr. Scotti

inquired of Mr. Mimiaga as to what his “plans” were. Mr. Mimiaga replied that

same day, stating that he had been offered a faculty position at UCLA, which he had

accepted; he further indicated that he did not plan to move to Los Angeles until the

end of September of 2020. In the exchange of communications which occurred on

or about June 4, 2020, Mr. Mimiaga also indicated that he wished to remain on the

property until the end of September of that year, while continuing to make the

mortgage payment of $3,625 per month. Mr. Mimiaga further stated that he wanted

1
Mr. Mimiaga testified at his deposition that he made a down payment of
$20,000 and that he borrowed $850,000 from Mr. Scotti in connection with
“financ[ing] the purchase.” He further acknowledged that he signed a promissory
note for $870,000, explaining that he had given Mr. Scotti “an extra $30,000” that
was in effect a security deposit. (A later e-mail communication between the parties
indicated that Mr. Mimiaga actually paid $30,000 as a down payment on the property
in addition to a $20,000 security deposit.)
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Mr. Scotti to “purchase back” the property from him, and he offered to do “several

walkthroughs” of the property “to ensure that the house is up to [Mr. Scotti’s]

standards.” On June 17, 2020, Mr. Scotti e-mailed Mr. Mimiaga that he was “game

for having [Mr. Mimiaga] stay on” at the property and that he “would like to get

together to inspect the condition of the property, at a time that is convenient for [Mr.

Mimiaga].”

According to Mr. Mimiaga, he delivered a handwritten letter, dated September

1, 2020, to Mr. Scotti’s office, indicating that he would not be moving to Los

Angeles until October or November of that year. It was Mr. Mimiaga’s testimony

that he wanted an extension of the mortgage and of the due date for payment pursuant

to the promissory note. Mr. Mimiaga also testified that, on September 13, 2020, he

delivered a typewritten letter to Mr. Scotti’s office. In that letter, Mr. Mimiaga stated

that there was a possibility that he would be remaining in Providence “for the

foreseeable future.” He added that, if he did remain in Providence, he wanted to stay

on the property, refinance his mortgage with another lender, and pay off the principal

balance on the promissory note. However, Mr. Mimiaga also requested that, “for

the time being,” he be allowed to continue in his existing relationship with Mr. Scotti

concerning the mortgage; and he also requested that he might continue to pay Mr.

Scotti “the same amount of interest” on the loan. In his e-mail response on

September 15, 2020, Mr. Scotti thanked Mr. Mimiaga for the update and stated: “Not

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surprising that your plans need to be flexible. I hope everything works out well for

you.” Mr. Scotti concluded the e-mail by asking Mr. Mimiaga to continue to update

him, so that he could “make arrangements in a timely manner.” Mr. Mimiaga went

on to testify that he believed Mr. Scotti was referring to the mortgage payoff when

he made reference to “mak[ing] arrangements.”

On December 3, 2020, Mr. Mimiaga e-mailed Mr. Scotti apologizing for the

fact that his plans kept “getting pushed back due to [COVID-19].” He further

indicated that his move to Los Angeles would likely occur around the end of January

or February of the next year, and he added that his plan was to continue to pay Mr.

Scotti “the same amount” if Mr. Scotti was amenable to that. Months later, in June

of 2021, Mr. Mimiaga e-mailed Mr. Scotti to alert him about a “potential investment

opportunity” regarding a property in Los Angeles. Mr. Scotti responded by e-mail

the next day and stated that his financial situation was not nearly as strong as he

“wish[ed] it were.” Mr. Scotti concluded his e-mail to Mr. Mimiaga by asking him:

“Is it time to resolve the 300 Benefit situation?”

On June 21, 2021, Mr. Scotti e-mailed Mr. Mimiaga the following message:

“It sounds like you are moving on to California. I would like to take over 300 Benefit

and am ready to return your deposit to you and finalize our agreement.” Mr.

Mimiaga replied by e-mail the next day, noting that he had been unable to locate

housing in Los Angeles and that, because he was able to work remotely, he wished

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to remain in Providence “for the time being.” He further stated that he needed to

review the parties’ contract to see what they “wrote down as far as [their] options”

for him to either pay off the mortgage or “sell the property back to” Mr. Scotti. Mr.

Mimiaga indicated that his preference “would be to refinance the mortgage” and pay

off Mr. Scotti.

On June 23, 2021, Mr. Scotti responded to Mr. Mimiaga in an e-mail, noting

that Mr. Mimiaga had contacted him a year earlier (June of 2020) and informed him

that COVID-19 had made it difficult “to plan [his] departure from” the property.

Mr. Scotti added that he was sympathetic to Mr. Mimiaga’s needs and that he trusted

that “the terms of our initial agreement would be extended and honored going

forward.” On July 3, 2021, Mr. Mimiaga responded that, upon his review of their

contract, he wanted to “exercise [their] agreement for [him] to pay off the note.”

On July 14, 2021, Mr. Scotti filed a complaint in Providence County Superior

Court, seeking specific performance of the option agreement. Mr. Scotti sought an

order compelling Mr. Mimiaga “to specifically perform his obligations under the

Option Agreement and sell the Property to [Mr. Scotti] forthwith for the sum of

$900,000, and awarding [Mr. Scotti] his costs and attorneys’ fees.” Mr. Scotti also

caused to be recorded a “Notice of Lis Pendens” in the Providence Land Evidence

Records.

Thereafter, Mr. Mimiaga filed an answer as well as a counterclaim, which

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contained the following counts: (1) slander of title; (2) punitive damages for the

“malicious act” of recording a lis pendens; and (3) injunctive relief. In the

counterclaim, Mr. Mimiaga contended that Mr. Scotti had refused to comply with

his request for a payoff statement that would allow him to refinance the mortgage.

He contended that the subsequent recording of a lis pendens by Mr. Scotti was

malicious in that it prevented him from either refinancing the mortgage at a lower

interest rate or from selling the property. He further contended that, when the lis

pendens was recorded, the option agreement had already expired. He requested an

injunction ordering Mr. Scotti to (1) release the lis pendens that he had recorded with

respect to the property; (2) provide Mr. Mimiaga with a payoff statement; (3)

discharge the mortgage upon receiving funds sufficient to pay off the total amount

due under the promissory note; and (4) reimburse Mr. Mimiaga for the costs

associated with the litigation.

Subsequently, on August 24, 2022, Mr. Mimiaga filed a motion for summary

judgment. In his memorandum in support of the motion, he contended that the

option agreement: (1) lacked consideration; (2) failed to comply with the statute of

frauds; (3) was not properly exercised; (4) had expired because time was of the

essence; and (5) was not modified by either an express or an implied waiver that

would extend the deadline to exercise the option. He further contended that “the

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undisputed evidence establishes that [he] never received the Handwritten Letter [2] or

any other indication—formal or otherwise—that [Mr. Scotti] desired to exercise the

option, until one (1) year after the option had expired.” (Emphasis omitted.)

On October 11, 2022, Mr. Scotti filed an objection to the motion for summary

judgment, in which he contended that the arguments contained in the motion were

“either predicated on ‘facts’ that are demonstrably untrue” or raised “issues of fact

that preclude resolution by summary judgment.” In Mr. Scotti’s affidavit, which

was filed along with his objection, he asserted that the “considerable discount” in

the purchase price of the property constituted the consideration for the option. In

addition, he pointed out that, although an earlier version of the option agreement

contained a clause indicating that time was of the essence, that clause had been

specifically omitted from the final version of the agreement. He further asserted that

his delay in repurchasing the property was the result of multiple requests made by

Mr. Mimiaga, who sought “to extend his tenure” at the property due to “job changes,

Covid-related issues,” and the difficulty which Mr. Mimiaga had experienced

relative to relocating to California.

In his reply to Mr. Scotti’s objection to the motion for summary judgment,

Mr. Mimiaga contended that, “without any further exchange, promise, concession,

2
It is undisputed that this reference to “the Handwritten Letter” relates to the
letter which Mr. Scotti asserted that he mailed to Mr. Mimiaga on June 1, 2020.
-9-
or consideration,” his acceptance of the option agreement had been required “as a

condition to proceed with the sale after the Parties had already agreed to the material

terms of the transaction.” (Emphasis in original.) He further asserted that Mr. Scotti

could not present any evidence that Mr. Mimiaga had received the letter constituting

notice that Mr. Scotti intended to exercise the option.

A hearing on the motion for summary judgment was held on October 25,

2022. On January 23, 2023, the hearing justice issued a written decision granting

Mr. Mimiaga’s motion for summary judgment. In his decision, the hearing justice

held that, because “consideration for an option must be separate and distinct from

consideration for the sale” and because the purchase price for the property “had

already been established before the option was even considered,” the option

agreement was unsupported by separate consideration. In addition, the hearing

justice turned to the question of whether Mr. Scotti had properly exercised the

option. He explicitly stated that acceptance under an option contract is not operative

until such acceptance is delivered; in this case, he ruled that there was no evidence

that Mr. Scotti’s June 1, 2020 handwritten letter had been delivered. The hearing

justice specifically found that the attempt of Mr. Scotti to exercise the option “was

improper because [he] did not ensure that his letter was delivered, nor did he even

attempt to inform [Mr. Mimiaga] in some other fashion.” The hearing justice further

found that Mr. Scotti “did not act timely” and that “[i]f [Mr. Scotti] wanted to

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repurchase the Property, he could have tendered funds for that purpose on or before

September 1, 2020 and leased the Property to [Mr. Mimiaga] as he did previously.”

The hearing justice concluded that, because “Rhode Island law requires the timely

taking of a benefit of an option, the [c]ourt agrees with [Mr. Mimiaga].” The hearing

justice also concluded that, “[w]ithout an express agreement waiving the provisions”

of the option agreement, there could be “no express waiver as a matter of law.” He

further found that, because Mr. Mimiaga’s e-mails did not appear to grant Mr. Scotti

more time to repurchase the property and the communications did not show a refusal

by Mr. Mimiaga to tender the property to Mr. Scotti, Mr. Mimiaga “did not impliedly

waive any term contained in the Option.”

On February 22, 2023, an order granting the motion for summary judgment

and ordering Mr. Scotti to release the lis pendens within forty-eight hours was

entered. On February 24, 2023, Mr. Scotti filed a motion to stay the order to release

the lis pendens during the pendency of his appeal to this Court. That motion was

denied on March 13, 2023; and on that same day, the February 22, 2023 order was

amended to state that March 15, 2023 would be the deadline for the release of the lis

pendens. Mr. Scotti timely appealed the March 13, 2023 amended order.3

3
Final judgment as to Mr. Scotti’s complaint did not enter until January 24,
2024.
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II

Issues on Appeal

On appeal, Mr. Scotti contends that a genuine issue of material fact exists as

to (1) whether the option agreement was supported by consideration; (2) whether

Mr. Scotti exercised his option when he mailed the June 1, 2020 handwritten letter

to Mr. Mimiaga; and (3) whether, unless the law otherwise conclusively resolves the

issue, the extensions of time requested by Mr. Mimiaga (and granted by Mr. Scotti)

“extended or waived the window” for Mr. Scotti to exercise his option under the

agreement.

III

Standard of Review

This Court reviews Superior Court rulings on summary judgment motions in

a de novo manner. Papudesu v. Medical Malpractice Joint Underwriting Association

of Rhode Island, 18 A.3d 495, 497 (R.I. 2011). In performing our review, “we utilize

the same standards and rules used by the hearing justice.” DiMaggio v. Tucker, 288

A.3d 981, 985 (R.I. 2023) (internal quotation marks omitted). This Court has stated

that “[w]e 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.” Empire Acquisition Group, LLC v. Atlantic

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Mortgage Company, Inc., 35 A.3d 878, 882 (R.I. 2012) (internal quotation marks,

brackets, and deletion omitted). When a motion for summary judgment is before a

court, “[t]he motion justice must refrain from weighing the evidence or passing upon

issues of credibility.” DeMaio v. Ciccone, 59 A.3d 125, 130 (R.I. 2013) (internal

quotation marks omitted). We have made it clear that “the purpose of the summary

judgment procedure is issue finding, not issue determination.” Id. We have also

noted that “summary judgment should occasion the termination of a case only where

it is absolutely clear that no genuine issue of material fact exists and that the moving

party is entitled to judgment as a matter of law.” Estate of Giuliano v. Giuliano, 949

A.2d 386, 394 (R.I. 2008) (internal quotation marks omitted).

This Court “has further stated that demonstrating mere factual disputes will

not defeat summary judgment; the requirement is that there be no genuine issue of

material fact.” DiMaggio, 288 A.3d at 985 (internal quotation marks and brackets

omitted). In addition, we have stated that the opposing party “by affidavits or

otherwise * * * [has] an affirmative duty to set forth specific facts showing that there

is a genuine issue of material fact.” Bourg v. Bristol Boat Co., 705 A.2d 969, 971

(R.I. 1998).

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IV

Analysis

A

Consideration

On appeal, Mr. Scotti first contends that a genuine issue of material fact exists

as to whether the option agreement was supported by sufficient consideration.

Specifically, Mr. Scotti asserts that the hearing justice “failed to fairly consider the

record evidence,” which included e-mail correspondence as well as Mr. Mimiaga’s

own deposition testimony “that tended to prove (directly and circumstantially) that

the parties negotiated the terms of the sale, including the Option Agreement, for

more than three months before the closing.” (Emphasis omitted.) He contends that

“all the parties’ promises were made as part of a single transaction” and that the

option agreement “continued to be an integral component of the overall

transaction * * *.” Mr. Scotti also contends that Mr. Mimiaga’s claim that the option

agreement was in effect an afterthought is “belied by the record” in that multiple

e-mails between the parties and their attorneys between May of 2015 and the closing

in August of 2015 reveal that the parties negotiated the agreement and “made

substantive edits to the [option agreement’s] terms months before the real estate

closing * * *.” (Emphasis omitted.)

Mr. Scotti further contends that there is no requirement that the option

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agreement be supported by “additional or separate consideration;” he goes on to

argue that, even if there were such a requirement, the steeply discounted price for

the property and the financing arrangement that he extended to Mr. Mimiaga

constituted sufficient separate consideration.

Mr. Mimiaga contends that there is no evidence of consideration for the option

agreement; rather, he asserts, the evidence shows that Mr. Scotti “demanded” that

Mr. Mimiaga execute the option agreement “after the Parties had already agreed on

the purchase price and financing terms.” Mr. Mimiaga specifically argues that “there

was no consideration in exchange for [Mr. Scotti’s] subsequent insistence of an

option after all of the transaction’s terms had been agreed upon between the Parties.”

While we do not deem it necessary in this case to pass upon the issue of

whether separate consideration is necessary for an option agreement, we note that

the courts of the several states are not uniform as to that issue.4 We need not pass

upon that issue in this case because the record contains a two-page written document

signed by both parties entitled “Option Agreement.” That option agreement clearly

states that the option to purchase the specified real property was supported by “good

and valuable consideration.”5 In our judgment, that statement is conclusive of the

4
See generally Joseph M. Perillo, Contracts § 4.6 at 165-66 (7th ed. 2014).
5
The words “good and valuable consideration” appear in the very first sentence
of the option agreement. That sentence in its entirety reads as follows: “For good
and valuable consideration, Matthew Mimiaga (the Grantor) grants to Francesco
- 15 -
consideration issue. As a result, while this case involves other issues that remain

viable, the consideration issue is no longer a live issue and should not be further

litigated.

B

The Exercise of the Option

Mr. Scotti next contends that his June 1, 2020 handwritten letter and

subsequent correspondence create a genuine issue of material fact concerning

whether Mr. Mimiaga knew that Mr. Scotti had decided to exercise his option. Mr.

Scotti avers that the hearing justice erred when he accepted Mr. Mimiaga’s

“statement that he never received delivery of [Mr. Scotti’s] Letter and found that

[Mr. Scotti] did not effectively elect his Option.” He further points out that the

option agreement did not specify the means by which the option was to be exercised

and that he notified Mr. Mimiaga that he was exercising the option by means of the

handwritten letter which he mailed on June 1, 2020. He contends that a notice which

is sent by regular mail implicates a presumption of receipt and that, because certain

evidence indicated that Mr. Mimiaga received the letter or had knowledge of it,

whether Mr. Mimiaga had sufficiently rebutted the presumption of receipt was a

Scotti, his heirs and assigns (the Grantee) an option to purchase the real property,
with all buildings and improvements thereon, located at 300 Benefit Street,
Providence, R.I., which has been designated at [sic] Lot 488 on Plat 12 of the
Assessor’s Map of th[e] City of Providence.”
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genuine issue of material fact.

Mr. Mimiaga asserts that acceptance under an option contract is operative only

when it is received by the optionor and that, therefore, it was incumbent upon Mr.

Scotti to ensure that Mr. Mimiaga received the handwritten letter. He contends that

the undisputed evidence establishes that the letter was not received by him until after

Mr. Scotti commenced the instant action and that Mr. Scotti did not send the

handwritten letter by certified mail, e-mail, or any other verifiable method of

delivery. In addition, he contends that, even if he had received the letter, a notice of

an intent to exercise the option agreement is not an exercise of the option and that,

pursuant to the terms of the option agreement, “there must have been actual

performance, to wit, a tender of payment and delivery of the deed within the specific

time period.”

This Court has long adhered to the presumption that, “if notice was mailed,

noticed was received.” Degasparre v. Fay Servicing, LLC, 288 A.3d 146, 152 (R.I.

2023); see also Harris v. Turchetta, 622 A.2d 487, 489 (R.I. 1993) (stating that,

when evidence is presented to a hearing justice that could support a finding that

notice had been sent, an opponent’s statement that such notice was not received is

“insufficient to overcome the presumption that mail regularly sent * * * was

received”); Larocque v. Rhode Island Joint Reinsurance Association, 536 A.2d 529,

532 (R.I. 1988) (noting that “receipt may be presumed by proof of an ordinary

- 17 -
mailing”).

We have recognized the “fundamental principle that once the party seeking

summary judgment has alleged the absence of any disputed issues of material fact,

the opposing party, to avoid summary judgment, must come forward with proof

sufficient to establish the existence of a specific, material, triable fact.” DiMaggio,

288 A.3d at 985 (internal quotation marks and brackets omitted). Taking into

account this particular set of facts, Mr. Scotti’s attestation that he mailed the June 1,

2020 handwritten letter notifying Mr. Mimiaga of his intent to exercise his option is

sufficient to establish an issue of material fact. In addition, Mr. Scotti provided

deposition testimony that he “[d]ropped [the letter] in the mailbox in Jamestown

behind the post office.” Mr. Scotti also points to a message from Mr. Mimiaga “just

three days after [Mr. Scotti] mailed the letter * * *;” that message stated that Mr.

Mimiaga “would love” for Mr. Scotti to repurchase the property. (Emphasis

omitted.)

Notably, these assertions by Mr. Scotti create a presumption that the letter was

received. See Harris, 622 A.2d at 489. Although said presumption is rebuttable, it

follows that it was then incumbent upon Mr. Mimiaga to offer evidence that he did

not receive the handwritten letter. See id. In our view, the record clearly indicates

that a genuine issue of material fact remained for a factfinder to resolve, which

consequently should not have been resolved on a motion for summary judgment. See

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Larocque, 536 A.2d at 532 (stating that “the question of the credibility of the

rebutting testimony is for the trier of fact to decide”). Accordingly, it is our view

that the hearing justice erred in granting summary judgment for Mr. Mimiaga with

respect to the exercise of the option.

C

Timeliness and Modification

Mr. Scotti’s final contention is that Mr. Mimiaga’s “repeated requests” to stay

on the property created genuine issues of material fact as to whether Mr. Scotti could,

as optionee, repurchase and take possession of the property after September of 2020.

Specifically, Mr. Scotti asserts that Mr. Mimiaga’s conduct “expressly and implicitly

extended the time for” Mr. Scotti’s performance. In addition, he asserts that, because

it was the “conduct, representations, and delays” of Mr. Mimiaga that contributed to

his “inability to move on his [o]ption election,” these circumstances “operate to

waive any timeliness requirement * * *.” Mr. Scotti contends that the hearing justice

“erroneously relied” on the fact that Mr. Scotti never tendered the funds to

repurchase the property.

Additionally, Mr. Scotti asserts that, even if the option agreement was never

modified, “time was never of the essence,” explaining that Mr. Mimiaga overlooks

the “fact that there is no time of the essence language in the Agreement and that the

exclusion of such language was intentional.” (Emphasis omitted.)

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Mr. Mimiaga argues that Mr. Scotti is unable to proffer evidence to establish

that Mr. Mimiaga either expressly or impliedly waived any provision or terms of the

option agreement. Mr. Mimiaga specifically contends that “there is no writing

evidencing an agreement to enlarge time and [Mr. Scotti] cannot establish the

existence of [an express] waiver.” Moreover, he contends that “[t]here is no

evidence of either an unequivocal or decisive act” on his part that would support an

implied waiver.

We have recognized the general rule that “time is of the essence in option

contracts * * *.” Haydon v. Stamas, 900 A.2d 1104, 1111 (R.I. 2006). However, we

have also stated that “like any other provision to a contract, time is of the essence

may be waived by express agreement or impliedly by conduct that contributes to the

delay in performance.” Fracassa v. Doris, 814 A.2d 357, 363 (R.I. 2003). This

Court has noted that “evidence supporting an inference of waiver must be manifest

and apparent. The party arguing that there has been a waiver bears the burden of

showing clearly its existence, and, generally, the ultimate determination is one of

fact.” Haydon, 900 A.2d at 1113. We have further made clear that an “implied

waiver of a legal right must be proved by a clear, unequivocal, and decisive act of

the party who is alleged to have committed waiver.” Sturbridge Home Builders, Inc.

v. Downing Seaport, Inc., 890 A.2d 58, 65 (R.I. 2005) (brackets omitted) (quoting

Ryder v. Bank of Hickory Hills, 585 N.E.2d 46, 49 (Ill. 1991)).

- 20 -
Although time is generally of the essence in option agreements, it is

significant in the instant action that a thorough review of the documents in the record

reveals that any language about time being of the essence was specifically omitted

from the final version of the option agreement. Moreover, even if there is a term in

a contract that relates to the time for performance, that does not cause time to be of

the essence merely by its presence. See 1800 Smith Street Associates, LP v.

Gencarelli, 888 A.2d 46, 52 (R.I. 2005) (stating that “explicit time limits standing

alone and without more do not indicate that the times fixed for performance are

intended by the parties to be a material or an essential part of their agreement”)

(internal quotation marks and brackets omitted). This Court has also noted that,

while “an optionee must be ready to pay the price as fixed in the option after he has

accepted,” the optionee need not tender the sale price contemporaneously with the

acceptance of an option. Butler v. Richardson, 74 R.I. 344, 351, 60 A.2d 718, 723

(1948).

In our view, based on the record before us and viewing the facts in the light

most favorable to Mr. Scotti, whether time was of the essence remained a genuine

issue of material fact, precluding summary judgment. We reach that conclusion due

to the fact that Mr. Scotti points to communications between the parties during the

negotiation stage of the real estate transaction, which he contends show that any

clause pertaining to time being of the essence was intentionally omitted from the

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final version of the option agreement.

It is true that the record shows that the hearing justice was correct in stating

that the exchange of correspondence between the parties does not expressly mention

an extension of the time to purchase the property. However, we are of the opinion

that the communications from Mr. Mimiaga, including but not limited to his

communication with Mr. Scotti on June 4, 2020 (wherein he requested that he might

continue to stay on the property until the end of September of 2020 and also that he

wished for Mr. Scotti to purchase back the property from him), could be viewed as

evidence of an implied waiver. Although neither the option agreement nor its

expiration was expressly mentioned in any of the correspondence from June of 2020

until July of 2021, the correspondence does give rise to a genuine issue of material

fact as to what the parties intended when extensions of time were requested and

subsequently granted. Accordingly, it is our conclusion that the hearing justice erred

in resolving the waiver issue on summary judgment.

V

Conclusion

For the reasons set forth in this opinion, we vacate the Superior Court’s

amended order and its judgment. The record may be returned to that tribunal for

further proceedings consistent with this opinion.

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STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903

OPINION COVER SHEET

Title of Case Francesco Scotti v. Matthew Mimiaga.

No. 2023-91-Appeal.
Case Number
(PC 21-4667)

Date Opinion Filed October 18, 2024

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

Written By Associate Justice William P. Robinson III

Source of Appeal Providence County Superior Court

Judicial Officer from Lower Court Associate Justice Brian P. Stern

For Plaintiff:

Robert Clark Corrente, Esq.
Attorney(s) on Appeal
For Defendant:

William H. Wynne, Esq.