Read's Landscape Construction, Inc. v. The Town of West Warwick

June 10, 2021

Supreme Court

No. 2019-313-Appeal.
No. 2019-323-M.P.
No. 2019-442-Appeal.
(KC 17-1008)

Read’s Landscape Construction, Inc. :

v. :

The Town of West Warwick 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 (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. 2019-313-Appeal.
No. 2019-323-M.P.
No. 2019-442-Appeal.
(KC 17-1008)

Read’s Landscape Construction, Inc. :

v. :

The Town of West Warwick et al. :

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

OPINION

Justice Goldberg, for the Court. These consolidated appeals came before

the Supreme Court on April 7, 2021, on appeal by the defendant, 4N Properties,

LLC (4N or defendant), from a partial Superior Court judgment and order granting

injunctive relief in favor of the plaintiff, Read’s Landscape Construction, Inc.

(RLC or plaintiff). The defendant asserts that the trial justice erred (1) in granting

summary judgment due to the existence of a number of disputed material facts and

(2) in granting a permanent mandatory injunction due to what defendant argues is

RLC’s failure to establish irreparable harm and great urgency. For the reasons set

forth in this opinion, we affirm the judgment and order of the Superior Court.

-1-
Facts and Travel

On December 16, 2015, RLC entered into a purchase and sale agreement to

buy from 4N a one-acre parcel of property located at Industrial Lane in West

Warwick, Rhode Island. The agreement was contingent upon many conditions,

including “[s]ubdivision approval by the [m]unicipality[.]” In order to create the

one-acre parcel, 4N subdivided its 14.49-acre parcel into four lots—labeled Lots

A, B, C, and D—pursuant to a minor subdivision plan dated January 20, 2016

(January 20 minor subdivision plan). The parcel at issue was identified as “Lot

C.”1 The January 20 minor subdivision plan included a metes and bounds

description for Lot C and indicated that Lot C “has a right to utilize a 40’ wide

right-of-way for ingress and egress * * *.” The January 20 minor subdivision plan

stated: “right of way referred to as Nunes Lane[.]” In addition to its reference on

the January 20 minor subdivision plan, Nunes Lane was also depicted as a right of

way on plans previously recorded with the Town of West Warwick (the town) in

2007 and 2012.

The Town of West Warwick Planning Board unanimously approved the

January 20 minor subdivision plan on February 1, 2016, and acknowledged in the

meeting minutes that “Nunes Lane is a right of way.” The approved plan was

signed by the town planner on April 6, 2016, and was recorded in the land

1
The other lots created are as follows: Lot A is a 3.74-acre lot; Lot B is a 4.669-
acre lot; and Lot D is a 6.73-acre lot designated for future development.
-2-
evidence records. The record reflects that another minor subdivision plan, dated

January 5, 2016, also was prepared (January 5 plan).2 The January 5 plan and

January 20 minor subdivision plan contained an identical metes and bounds

description for Lot C. However, the January 20 minor subdivision plan added

language to specifically indicate that Nunes Lane was a “right of way referred to

as” Nunes Lane. Although the January 5 plan was never considered or approved

by the planning board—and the January 20 minor subdivision plan was considered,

approved, and recorded—the January 5 plan was the plan set forth in the

conveyance deed from 4N to RLC for Lot C.

Shortly after the April 6, 2016 filing of the January 20 minor subdivision

plan, a third plan—an administrative subdivision prepared on behalf of 4N—was

approved and recorded on April 27, 2016 (April 2016 administrative subdivision).3

Unlike a minor subdivision, which is “[a] plan for a subdivision of land consisting

of five (5) or fewer units or lots,” G.L. 1956 § 45-23-32(25), an administrative

subdivision involves only the “[r]e-subdivision of existing lots which yields no

additional lots for development, and involves no creation or extension of streets.

The re-subdivision only involves divisions, mergers, mergers and division, or

2
Apparently, the January 5 plan was abandoned because it created five lots, and a
minor subdivision could create only four lots.
3
The record suggests that 4N submitted a proposal to RLC to construct the
building planned for the site, but the plans changed and RLC ultimately selected
another contractor.
-3-
adjustments of boundaries of existing lots.” Section 45-23-32(2). The April 2016

administrative subdivision did not change Lot C’s boundary lines or area, but it

modified Lot D’s boundary line, such that “it narrowed Nunes Lane by 10 feet[,]

thus adding a strip of land 10 feet wide to Lot D”—similar to a hockey stick

configuration—on the west side of Nunes Lane. Significantly, however, Nunes

Lane is again referred to as “a right of way” on the April 2016 administrative

subdivision and is again labeled as a “40 [foot] wide ingress [and] egress

easement”; it is also listed in the street index on the plan. This administrative

subdivision is not referenced in the warranty deed from 4N to RLC for Lot C.

On June 22, 2016, Lot C was conveyed by warranty deed to RLC. The deed

set forth the identical metes and bounds description for Lot C contained in the

January 20 minor subdivision plan and the January 5 plan. The deed referenced

the unrecorded January 5 plan, stating that “[s]aid description being Lot ‘C’ as

shown on that plan entitled ‘Minor Subdivision Prepared for 4N Properties LLC

* * * January 5, 2016 * * *.’” The deed also included language that “[s]aid plat is

recorded with the Land Evidence Records of the Town of West[]Warwick in Plat

Book 7 at Page 23.” This reference, however, is to the January 20 minor

subdivision plan, which is not referenced in the deed. The defendant maintains

that the recordation reference was added after the closing without 4N’s knowledge

or consent. What is clear is that, after the closing, RLC did not have access to

-4-
Nunes Lane because a row of boulders was situated along the hockey stick portion

of Lot D.

The plaintiff filed a complaint in the Superior Court on September 22, 2017,

and an amended complaint on September 26, 2017. RLC alleged that 4N

“committed fraud in the inducement and misrepresentation” by altering the Nunes

Lane right of way and eliminating RLC’s ability to use the right of way.4

Specifically, RLC maintained that 4N “created a barrier by boulders so that [RLC]

cannot access [its] [p]roperty through Nunes Lane as intended.”5 In its amended

complaint, RLC sought a declaration that it “has a right of way in and to Nunes

Lane” and injunctive relief prohibiting 4N from preventing RLC’s use of Nunes

Lane to access Lot C.

Shortly after filing its amended complaint, RLC moved for partial summary

judgment against 4N. The trial justice determined that summary judgment was

4
The Town of West Warwick and its finance director were also named as
defendants in RLC’s amended complaint. RLC alleged that the town defendants
violated RLC’s “property rights in illegally approving an administrative
subdivision * * *.” On February 8, 2019, the Superior Court granted RLC’s
motion to dismiss the town pursuant to Rule 41(a)(2) of the Superior Court Rules
of Civil Procedure. Accordingly, all claims against the town defendants were
dismissed with prejudice.
5
The record reflects that, at some point prior to the closing, 4N placed boulders
along Lot C’s property lines, thereby blocking Lot C’s access to Nunes Lane. In
April 2018, and while litigation was pending, 4N placed additional trucks,
boulders, and materials along Nunes Lane, further preventing RLC’s access to
Nunes Lane.
-5-
premature because there was “information that could be gained from discovery

which may sharpen the issues * * *.” As such, the trial justice directed the parties

to engage in the discovery process and continued the summary-judgment motion.

The plaintiff renewed its motion for partial summary judgment a year later, on

December 4, 2018, arguing that the 2007 and 2012 recorded plans, the January 20

minor subdivision plan that created Lot C, and the warranty deed that conveyed

Lot C to RLC each establish a right of way in and to Nunes Lane in favor of RLC.

The plaintiff also argued, in the alternative, that there had been an incipient

dedication of Nunes Lane by virtue of “the clear language and lines on the

recorded plans themselves * * *.”

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

in which it argued that the right of way over Nunes Lane was abandoned by the

recording of the April 2016 administrative subdivision, such that when Lot C was

conveyed to RLC in June 2016, no right of way existed. Also, 4N maintained that

the right of way “over Nunes Lane was specifically excluded from the sale”

because a gate and boulders, which 4N contends were readily apparent before the

closing, obstructed access to Nunes Lane, and that any language referring to a right

of way was excluded from the warranty deed. Further, 4N claimed that there was

no incipient dedication of Nunes Lane because RLC previously acknowledged that

Nunes Lane is not a public road, there was no evidence that the town accepted

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Nunes Lane as a public road, and, even assuming that an incipient dedication had

occurred, material questions of fact remained as to whether 4N revoked “any

unintentional incipient dedication claimed by RLC.” Finally, 4N claimed that the

deed was materially altered after delivery and, therefore, was potentially void.

A hearing on the parties’ cross-motions for summary judgment was held on

April 8, 2019, before a different trial justice. After hearing argument from the

parties, the trial justice reserved decision and, on May 13, 2019, granted summary

judgment in favor of RLC in a bench decision. In so ruling, the trial justice found

that the warranty deed clearly and unambiguously granted “Lot C an easement

over Nunes Lane”; therefore, he declined to examine extrinsic evidence, including

affidavits asserting that 4N told RLC “that an easement over Nunes Lane would

not be included in the sale of Lot C and the evidence of boulders blocking Nunes

Lane from Lot C” was apparent.6 The trial justice rejected 4N’s argument that the

April 2016 administrative subdivision plan abandoned the Nunes Lane right of way

and, instead, found that “the recording of the Administrative Subdivision * * *

does not change the private right of way granted to [RLC] in the Warranty Deed

which was executed and recorded after the Administrative Subdivision.” The trial

6
The trial justice found that summary judgment was not appropriate as to RLC’s
claim that there had been an incipient dedication of Nunes Lane because “there is a
genuine issue of material fact as to whether there has been a revocation of the
[d]efendant’s intent to dedicate.” RLC has not sought review of that decision, and
that issue is not before us.
-7-
justice also concluded that any alteration to the deed—which apparently added a

reference to the date, book, and page in which the January 20 minor subdivision

plan was filed—was not material because “[t]he recording information is nothing

more than a mere reference point for future surveyors or title attorneys[,]” and that

“adding the recording reference in no way materially changed what was conveyed

by the Warranty Deed.”

Thus, the trial justice declared that RLC had a right of way in and to Nunes

Lane because the easement was not specifically excluded from the warranty deed,

the metes and bounds description for Lot C used Nunes Lane as a boundary line in

three distinct places, and the deed referenced the January 5 plan which, although

unrecorded, clearly showed Nunes Lane as a right of way. The trial justice granted

RLC’s motion for partial summary judgment, denied 4N’s cross-motion for

summary judgment, and ordered that “[p]ursuant to the [d]eed * * * and the [p]lans

referenced therein, [RLC] has a 40’ right of way easement over Nunes Lane.”

The plaintiff then moved for injunctive relief, seeking “a mandatory

permanent injunction to order [4N] to remove all impediments it has placed upon

Nunes Lane and abutting [p]laintiff’s [p]roperty which prevents [p]laintiff from

accessing its [p]roperty by and through Nunes Lane[,]” including “a barrier of

large boulders[.]” 4N objected to the motion, arguing that the criteria for

injunctive relief had not been met and that any easement to pass over Nunes Lane

-8-
did not entitle RLC to pass over Lot D, which remained 4N’s property. The trial

justice found after a hearing that RLC met the standards for mandatory permanent

injunctive relief and ordered 4N to “remove any and all impediments located on

Nunes Lane as well as any impediments located on or adjacent to Nunes Lane

which block [p]laintiff’s access to its property from Nunes Lane[.]”

The defendant timely appealed the trial justice’s ultimate grant of partial

final judgment, as well as his decision granting mandatory permanent injunctive

relief. The matters were consolidated.7

7
We pause to expound upon the travel of this case. After the trial justice granted
summary judgment in favor of RLC, 4N moved, pursuant to Rule 54(b) of the
Superior Court Rules of Civil Procedure, for the entry of final judgment on count
one of plaintiff’s complaint based upon the fact that injunctive relief had been
granted and the issue of damages remained pending in the Superior Court. The
trial justice denied the motion and refused to enter final judgment. Thereafter, 4N
petitioned this Court for a writ of certiorari to review the Superior Court’s denial of
its Rule 54(b) motion (No. 2019-323-M.P.). We granted the petition, vacated the
Superior Court order denying the Rule 54(b) motion, and directed the Superior
Court “to enter a Rule 54(b) final judgment * * *.” In accordance with our order,
the Superior Court thereafter entered partial final judgment in favor of RLC; 4N
filed a timely notice of appeal from the partial final judgment (No. 2019-442-A.).
Thus, No. 2019-323-M.P. was resolved when the order on review denying the Rule
54(b) motion was vacated and quashed. We add that, before this Court, the parties
take no issue with the determination that, based upon the eventual entry of partial
final judgment by the Superior Court, the issue raised on certiorari is now moot.
4N also timely appealed the trial justice’s decision granting injunctive relief
(No. 2019-313-A.) and moved this Court for an emergency stay of that order. This
Court granted 4N’s “emergency motion to stay [the] injunction pending appeal[.]”
-9-
Summary Judgment

Before this Court, 4N first argues that the trial justice erred when he

determined that no genuine issues of material fact existed and granted summary

judgment in favor of RLC. Specifically, 4N submits that the trial justice erred

because (1) the April 2016 administrative subdivision was recorded before the

closing and it abandoned the Nunes Lane right of way; (2) the implied access from

Nunes Lane is unnecessary because RLC has adequate access via Industrial Lane;

(3) the deed was materially altered, thus precluding summary judgment; and (4) the

January 5 plan and the January 20 minor subdivision plan are materially different

from each other, thus creating ambiguity in the deed and precluding summary

judgment.

“It is well settled that this Court reviews a hearing justice’s grant of

summary judgment de novo.” Broccoli v. Manning, 208 A.3d 1146, 1149 (R.I.

2019). We, like the trial justice, “view the evidence in the light most favorable to

the nonmoving party, and if we conclude that there are no genuine issues of

material fact and that the moving party is entitled to judgment as a matter of law,

we will affirm the judgment.” Yanku v. Walgreen Co., 224 A.3d 1130, 1133 (R.I.

2020) (quoting Ballard v. SVF Foundation, 181 A.3d 27, 34 (R.I. 2018)).

We first turn to the issue of the allegedly altered deed, which 4N argues

precluded summary judgment because it represented a disputed issue of material

- 10 -
fact. This alleged alteration is the recording reference to the January 20 minor

subdivision plan. How this book and page reference came to be added to the deed

and by whom is unknown. Although this may be a fact that is disputed in this case,

this Court has recognized that “[d]emonstrating mere factual disputes will not

defeat summary judgment; the requirement is that there be no genuine issue of

material fact.” Deutsche Bank National Trust Company for Registered Holders of

Ameriquest Mortgage Securities, Inc. v. McDonough, 160 A.3d 306, 311 (R.I.

2017) (emphasis added) (quoting Moura v. Mortgage Electronic Registration

Systems, Inc., 90 A.3d 852, 856 (R.I. 2014)). We agree with the trial justice’s

conclusion: Whatever occurred during this unorthodox real estate closing and the

book and page reference is not a genuine issue of material fact that precluded

summary judgment.8

The trial justice correctly found that, even assuming the deed was altered

after the closing, there is no material difference between the January 5 plan and the

January 20 minor subdivision plan as it relates to Lot C. Specifically, the trial

8
4N relies predominantly on the opinion of its closing attorney, Jean A. Boulanger,
to argue that Nunes Lane does not exist as an easement for Lot C and, thus, 4N
contends, a disputed issue of material fact existed that precluded summary
judgment. According to 4N, Attorney Boulanger testified via affidavit “that the
easement did not exist at the time of [c]losing two months after the recording of the
Administrative Subdivision on April 27[, 2016].” It has not escaped our attention
that Attorney Boulanger is the very person who drafted the deed with the reference
to the January 5 plan and not the April 2016 administrative subdivision.
Furthermore, there is no support in the law for 4N’s assertion.
- 11 -
justice correctly determined that the alleged deed alteration is not material because

“[t]he two separate plat plans do not differ as to the metes and bounds of Lot C and

Nunes Lane bordering Lot C[;] * * * adding the recording reference in no way

materially changed what was conveyed by the Warranty Deed.” Thus, we

conclude that there is no genuine issue of material fact with respect to the allegedly

altered deed that would preclude summary judgment. The reference to the book

and page is just that—a reference point for land evidence purposes. Further, the

deed specifically refers to the January 5 plan, and that is the plan that governs the

relationship of the parties.

We next turn to the issue of whether RLC owns an easement over Nunes

Lane. This Court has recognized that “when a property owner subdivides land and

sells lots with reference to a plat, the purchasers of those lots are granted easements

in the roadways shown on the subdivision plan[.]” Drescher v. Johannessen, 45

A.3d 1218, 1230 (R.I. 2012) (quoting Hilley v. Lawrence, 972 A.2d 643, 651 (R.I.

2009)). A purchaser of a lot acquires “a right to use all of the streets delineated on

the plat even [if] the plat is unrecorded.” Kotuby v. Robbins, 721 A.2d 881, 884

(R.I. 1998) (quoting Robidoux v. Pelletier, 120 R.I. 425, 436, 391 A.2d 1150, 1156

(1978)). “The easement * * * ‘is appurtenant to the property and passes with the

conveyance of the property, unless specifically excluded, even though not

- 12 -
mentioned in the deed.’” Newport Realty, Inc. v. Lynch, 878 A.2d 1021, 1033 (R.I.

2005) (quoting Robidoux, 120 R.I. at 436, 391 A.2d at 1156).

Here, the record reflects that Nunes Lane was platted since at least 2007, and

the conveyance of Lot C was made with reference to the unrecorded January 5

plan. It is well settled “that ‘when a plat is referred to in a deed, for a description

of the premises intended to be conveyed, it becomes for this purpose a part of the

deed[.]’” Catalano v. Woodward, 617 A.2d 1363, 1366 (R.I. 1992) (quoting

Kenyon v. Nichols, 1 R.I. 411, 414 (1851)). Consequently, the status of Nunes

Lane is determined and controlled by reference to the January 5 plan. Even though

unrecorded, the parties are bound by the January 5 plan of subdivision. See id.

(“[A] deed which refers to a plat or subdivision plan will effectively grant rights to

use roads delineated in the plan even if the plan has not been previously

recorded.”). On the January 5 plan, Nunes Lane is depicted as a forty-foot laneway

that abuts Lot C, and the metes and bounds description in the deed confirms that

Lot C abuts Nunes Lanes and not a strip of Lot D. Lot C does not abut a wall of

boulders. Nunes Lane is also listed in the street index on the January 5 plan—and

every plan filed—including the April 2016 administrative subdivision. Thus,

because the January 5 plan was incorporated into the deed conveying Lot C, it had

the effect of granting an easement appurtenant over Nunes Lane, in favor of Lot C.

Nowhere in the deed was the easement specifically excluded, and nothing in the

- 13 -
deed suggests that 4N did not intend to grant an easement. Consequently, RLC, as

the owner of Lot C, was granted a forty-foot easement over Nunes Lane.

We also agree with the trial justice that, because there is no ambiguity in the

deed, it is unnecessary—and clearly not appropriate—to look to extrinsic evidence,

including the questionable circumstances surrounding statements between the

parties, or the existence of boulders blocking Nunes Lane, or the April 2016

administrative subdivision. See Hilley, 972 A.2d at 649 (holding that, when the

language in a deed creating an easement is “clear and unambiguous, neither oral

testimony nor extrinsic evidence will be received to explain the nature or extent of

the rights acquired”) (quoting Carpenter v. Hanslin, 900 A.2d 1136, 1147 (R.I.

2006)). This Court has been clear “that confusion and uncertainty can arise when a

collateral attack is made on the intent of the grantor in depicting streets and roads

on a recorded [or unrecorded] plat.” Newport Realty, Inc., 878 A.2d at 1042.

Therefore, in order to minimize the expense and complexity associated with these

disputes, we have declared that these cases “should be decided in accordance with

our settled jurisprudence and should rise or fall by reference to the plat on which

the disputed parcel is depicted.” Id. (emphasis added). In the case at bar, the deed

clearly and unambiguously references the January 5 plan, which depicts Nunes

Lane as a forty-foot laneway and the boundary line for Lot C. In sum, we concur

with the well-reasoned analysis set forth in the trial justice’s bench decision, and

- 14 -
we affirm his decision that RLC has a forty-foot right of way easement over Nunes

Lane.

Injunctive Relief

Having concluded that RLC enjoys an easement over Nunes Lane, we turn

to whether the trial justice properly granted a mandatory permanent injunction,

ordering 4N to cease blocking RLC’s access to its property from Nunes Lane and

to remove all impediments (including the row of boulders) that blocked RLC’s

access. The defendant contends that the injunction should be vacated because

(1) RLC had adequate access to its property from Industrial Lane and thus did not

need Nunes Lane; (2) RLC failed to demonstrate that it would suffer anything

other than monetary damages; and (3) there was no “great urgency” for injunctive

relief.9

“This Court will reverse the decision of a trial justice to grant * * * a

permanent injunction only ‘when it can be shown that the trial justice misapplied

the law, misconceived or overlooked material evidence or made factual findings

that were clearly wrong.’” Hilley, 972 A.2d at 648 (quoting Holden v. Salvadore,

964 A.2d 508, 513 (R.I. 2009)). “The issuance and measure of injunctive relief

rest in the sound discretion of the trial justice.” Martin v. Wilson, 246 A.3d 916,

923-24 (R.I. 2021) (quoting Cullen v. Tarini, 15 A.3d 968, 981 (R.I. 2011)).

9
Because final judgment has not issued in this case, the question of RLC’s
entitlement to monetary damages may still be litigated.
- 15 -
First, because we have concluded that RLC has acquired an easement

appurtenant over Nunes Lane based on the clear and unambiguous language in the

warranty deed, RLC need not establish that the easement was reasonably necessary

for the use and enjoyment of Lot C. Cf. Martin, 246 A.3d at 925 (noting that to

establish an easement by implication the plaintiff must prove that the implied

easement is necessary for the use and enjoyment of his or her land). Furthermore,

4N’s other assignments of error are without merit. It is well settled “that when

there is a continuing trespass on an owner’s land, [the owner] is entitled to a

mandatory injunction.” Renaissance Development Corp. v. Universal Properties

Group, Inc., 821 A.2d 233, 238 (R.I. 2003); see Santilli v. Morelli, 102 R.I. 333,

338, 230 A.2d 860, 863 (1967). Here, we discern no error with the trial justice’s

issuance of a permanent mandatory injunction, and “we defer to [his] sound

discretion in the issuance and measure of injunctive relief.” Martin, 246 A.3d at

926.10 Accordingly, we affirm the trial justice’s order issuing a mandatory

permanent injunction in favor of the plaintiff.

Conclusion

For the foregoing reasons, we affirm the partial final judgment and the order

of the Superior Court, to which the papers in this case may be remanded.

10
Although 4N asserts that RLC had adequate access to Lot C from Industrial
Lane, there is a suggestion in the record that access to Lot C from Industrial Lane
is restricted by utility poles with live wires, as well as the absence of a curb cut for
such access.
- 16 -
STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903

OPINION COVER SHEET

Read's Landscape Construction, Inc. v. The Town of
Title of Case
West Warwick et al.
No. 2019-0313-Appeal.
No. 2019-323-M.P.
Case Number
No. 2019-442-Appeal.
(KC 17-1008)

Date Opinion Filed June 10, 2021

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

Written By Associate Justice Maureen McKenna Goldberg

Source of Appeal Kent County Superior Court

Judicial Officer from Lower Court Associate Justice Richard A. Licht

For Plaintiff:

Joelle C. Rocha, Esq.
Michael A. Kelly, Esq.
Attorney(s) on Appeal
For Defendant:

David M. Campbell, Esq.
Timothy A. Williamson, Esq.

SU-CMS-02A (revised June 2020)