Debra DiMaggio v. Ethan Tucker

February 21, 2023

Supreme Court

No. 2021-234-Appeal.
(PC 11-1302)

Debra DiMaggio :

v. :

Ethan Tucker. :

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
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Supreme Court

No. 2021-234-Appeal.
(PC 11-1302)

Debra DiMaggio :

v. :

Ethan Tucker. :

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

OPINION

Justice Robinson, for the Court. The defendant, Ethan Tucker, appeals

from the Providence County Superior Court’s grant of partial summary judgment

in favor of the plaintiff, Debra DiMaggio. Mr. Tucker contends that the hearing

justice improperly applied the law of the case doctrine when ruling on Ms.

DiMaggio’s motion for partial summary judgment. This case came before the

Supreme Court pursuant to an order directing the parties to show cause why the

issues raised in this appeal should not be summarily decided. After carefully

examining the record and the parties’ arguments (both written and oral), we are of

the opinion that cause has not been shown and that the appeal may be resolved

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without further briefing or argument. For the reasons set forth in this opinion, we

affirm the judgment of the Superior Court.

I

Facts and Travel

On September 28, 2009, Mr. Tucker signed a Promissory Note (the

Promissory Note) in favor of Ms. DiMaggio in the amount of $1,150,000. That

Promissory Note consolidated numerous debts which Mr. Tucker owed Ms.

DiMaggio pursuant to her advances to Mr. Tucker for their various joint real estate

projects in Rhode Island and Illinois. The Promissory Note, which was secured by

a mortgage on certain real estate located at 1200 Hope Street, Bristol, Rhode Island

(the Bristol property), provided for a 11.9 percent interest rate on the principal

amount owed and for a default rate of 25 percent.

On October 21, 2010, counsel for Ms. DiMaggio sent Mr. Tucker a notice of

default and demand for payment under the Promissory Note and demanded that

Mr. Tucker make immediate payment of the principal amount of $1,150,000, plus

interest. Mr. Tucker did not respond to that October 21, 2010 notice and demand.

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Accordingly, on March 8, 2011, Ms. DiMaggio filed a six-count complaint1 against

Mr. Tucker, seeking injunctive relief, compensatory and punitive damages, and

attorneys’ fees.

On February 6, 2012, counsel for Ms. DiMaggio sent Mr. Tucker a letter that

constituted a further “notice of default and acceleration of all payments.” That

document indicated that, if Mr. Tucker did not pay by February 27, 2012, “all

outstanding liabilities, including the sum of principal, accrued and accruing

interest, costs, late charges, and legal fees,” amounting to $1,990,702.10 (as of

February 6), Ms. DiMaggio would proceed with a mortgage foreclosure sale on the

Bristol property. Mr. Tucker proceeded to file a motion for a preliminary

injunction, seeking to enjoin the scheduled March 21, 2012 foreclosure sale. Mr.

Tucker contended that the Promissory Note was not enforceable because: (1) Ms.

DiMaggio had fraudulently induced him to sign the note; (2) there was no

consideration for the note; and (3) the note violated Rhode Island’s usury statute,

G.L. 1956 § 6-26-2.

1
The following are the counts set forth in the complaint: Count One—
“Breach of Promissory Note / Breach of Contract;” Count Two—“Breach of
Mortgage and Security Agreement/ Breach of Contract;” Count Three—“Breach of
the Implied Covenant of Good Faith and Fair Dealing;” Count Four—“Attorneys’
Fees;” Count Five—“Fraud & Conversion;” and also a claim for “Injunctive
Relief.”

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On March 19, 2012, an evidentiary hearing was conducted with respect to

Mr. Tucker’s motion for a preliminary injunction, and on the next day the hearing

justice issued a bench decision denying that motion.

The hearing justice first ruled: (1) that the note was not usurious because

§ 6-26-2 was not applicable to the parties’ business transaction; and (2) that, even

if said statute did apply, Mr. Tucker’s usury argument would fail as a matter of law

because the alleged usurious rate (viz., 25 percent) had been triggered by Mr.

Tucker’s voluntary act of default.2

The hearing justice further ruled that Mr. Tucker’s argument as to the lack of

consideration failed on the ground that, pursuant to G.L. 1956 § 6A-3-303, “a

promissory note provided to evidence an antecedent obligation, such as a debt,

does not need to be supported by consideration independent of that which was

previously furnished * * *.”

Finally, the hearing justice summarized the four elements that a party must

prove to prevail on a claim of fraud in the inducement. See Women’s Development

Corporation v. City of Central Falls, 764 A.2d 151, 161 (R.I. 2001). She

2
In his statement filed pursuant to Article I, Rule 12A of the Supreme Court
Rules of Appellate Procedure, Mr. Tucker has made no reference to his contention
regarding usury. Accordingly, we need not and shall not address that issue in this
opinion. See Estate of Meller v. Adolf Meller Co., 554 A.2d 648, 654 (R.I. 1989);
see also Johnston v. Poulin, 844 A.2d 707, 710 n.3 (R.I. 2004).

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determined that “defendant has failed to show evidence that fulfills all of the

elements of fraud in the inducement;” and she specifically determined as follows:

“Defendant has not offered any credible evidence, either
through testimony or otherwise, to show any false
statement made by the plaintiff with the intent to induce
defendant’s reliance thereon with regard to the note.”

On April 23, 2012, Ms. DiMaggio filed a motion for summary judgment as

to each of the counts in the complaint; and Mr. Tucker filed an objection thereto.

However, that motion was passed, and discovery ensued.

Many years later, on November 10, 2020,3 Ms. DiMaggio filed a motion for

partial summary judgment with respect to Counts One and Two.4 In objecting to

that motion, Mr. Tucker reiterated the lack of consideration and fraud in the

inducement arguments upon which he had relied in his 2012 motion for

preliminary injunction that was denied by the first hearing justice.

On February 10, 2021, a different justice (to whom we shall refer as “the

second hearing justice”) held a hearing on the just-mentioned motion of Ms.

DiMaggio for partial summary judgment; and he proceeded to render a bench

decision as to same on February 22, 2021. In that decision, the second hearing

3
Neither the record nor the statements of the parties filed pursuant to Article
I, Rule 12A of the Supreme Court Rules of Appellate Procedure, provide any
explanation as to why over eight years elapsed between the filing of Ms.
DiMaggio’s April 23, 2012 motion for summary judgment (never ruled upon) and
the filing of her November 10, 2020 motion for partial summary judgment.
4
See note 1, supra.

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justice reasoned that, because the first hearing justice had determined that Mr.

Tucker’s defenses as to both the lack of consideration and fraud in the inducement

issues failed as a matter of law and because the only additional evidence provided

by Mr. Tucker was an affidavit which “just repeated the initial defenses that [the

court] considered in 2012 and has not added anything to it that has come to light in

the interim time[,]” the law of the case doctrine applied and was dispositive.

Accordingly, the second hearing justice granted Ms. DiMaggio’s motion for partial

summary judgment on Counts One and Two. A final judgment under Rule 54(b)

of the Superior Court Rules of Civil Procedure entered as to those two counts on

April 2, 2021, and Mr. Tucker thereafter filed a timely notice of appeal.

II

Issue on Appeal

On appeal, Mr. Tucker contends that the second hearing justice improperly

applied the law of the case doctrine when granting Ms. DiMaggio’s motion for

partial summary judgment.

III

Standard of Review

This Court reviews “Superior Court rulings with respect to 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 doing

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so, we utilize “the same standards and rules used by the hearing justice.” Newstone

Development, LLC v. East Pacific, LLC, 140 A.3d 100, 103 (R.I. 2016) (quoting

Daniels v. Fluette, 64 A.3d 302, 304 (R.I. 2013)). It is further well established

that “[w]e review the evidence in a light most favorable to the nonmoving party

and will affirm the judgment if there exists no genuine issue of material fact and

the moving party is entitled to judgment as a matter of law.” Lynch v. Spirit Rent-

A-Car, Inc., 965 A.2d 417, 424 (R.I. 2009).

It is a fundamental principle that “[o]nce 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.” Barrett v.

Barrett, 894 A.2d 891, 894 (R.I. 2006). We have explicitly stated that “[a]lthough

summary judgment is recognized as an extreme remedy, * * * to avoid summary

judgment the burden is on the nonmoving party to produce competent evidence

that ‘proves the existence of a disputed issue of material fact.’” Sullo v. Greenberg,

68 A.3d 404, 407 (R.I. 2013) (brackets omitted) (quoting Mutual Development

Corp. v. Ward Fisher & Company, LLP, 47 A.3d 319, 323 (R.I. 2012)). We have

further stated that “[d]emonstrating mere factual disputes will not defeat summary

judgment; the requirement is that there be no genuine issue of material fact.”

Henry v. Media General Operations, Inc., 254 A.3d 822, 835 (R.I. 2021) (quoting

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Deutsche Bank National Trust Company for Registered Holders of Ameriquest

Mortgage Securities, Inc. v. McDonough, 160 A.3d 306, 311 (R.I. 2017)).

Furthermore, and significantly, it is a basic principle that the party opposing

summary judgment “will not be allowed to rely upon mere allegations or denials in

[the] pleadings.” Bourg v. Bristol Boat Co., 705 A.2d 969, 971 (R.I. 1998).

“Rather, by affidavits or otherwise [it has] an affirmative duty to set forth specific

facts showing that there is a genuine issue of material fact.” Id.; see also Newstone

Development, LLC, 140 A.3d at 103; The Providence Journal Company v.

Convention Center Authority, 774 A.2d 40, 46 (R.I. 2001).

IV

Analysis

Mr. Tucker challenges the ruling of the second hearing justice to the effect

that the law of the case doctrine disposes of the arguments that were based on the

lack of consideration and fraud in the inducement.

The law of the case doctrine “is a rule of practice, based on sound policy

that, when an issue is once * * * decided, that should be the end of the matter.”

Barrett v. Baylor, 457 F.2d 119, 123 (7th Cir. 1972) (citing United States v. United

States Smelting, Refining & Mining Co., 339 U.S. 186, 198 (1950)); see also

Quillen v. Macera, 160 A.3d 1006, 1012-13 (R.I. 2017). The doctrine states that

“after a judge has decided an interlocutory matter in a pending suit, a second judge,

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confronted at a later stage of the suit with the same question in the identical

manner, should refrain from disturbing the first ruling.” Salvadore v. Major

Electric & Supply, Inc., 469 A.2d 353, 356 (R.I. 1983). This Court has noted that

“[t]he purpose of the law of the case doctrine is to ensure ‘the stability of decisions

and avoid unseemly contests between judges that could result in a loss of public

confidence in the judiciary.’” Chavers v. Fleet Bank (RI), N.A., 844 A.2d 666, 678

(R.I. 2004) (brackets omitted) (quoting Commercial Union Insurance Co. v.

Pelchat, 727 A.2d 676, 683 (R.I. 1999)). Nevertheless, the law of the case doctrine

“is a flexible rule that may be disregarded when a subsequent ruling can be based

on an expanded record.” Id. at 677.

A

The Alleged Lack of Consideration

The first hearing justice, in ruling on Mr. Tucker’s motion for a preliminary

injunction, held as a matter of law that Mr. Tucker’s argument as to the lack of

consideration failed because, pursuant to § 6A-3-303, “a promissory note provided

to evidence an antecedent obligation, such as a debt, does not need to be supported

by consideration independent of that which was previously furnished * * *.”5 In

our opinion, the first hearing justice was correct in so holding.

5
The Promissory Note provided: “Lender agrees that this Note consolidates
the notes evidencing loans and advances made to Borrower by Lender * * *.”

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The second hearing justice, in granting Ms. DiMaggio’s motion for partial

summary judgment, referred to the legal ruling of the first hearing justice and

proceeded to apply the law of the case doctrine and ruled that Mr. Tucker’s lack of

consideration argument failed as a matter of law.

On appeal, Mr. Tucker asserts that the second hearing justice erred in

applying the law of the case doctrine because the standards for the two motions are

different. Mr. Tucker’s argument is unavailing because the first hearing justice

had correctly held that Mr. Tucker’s lack of consideration argument failed as a

matter of law. For that reason, the different standards that govern motions for

injunctive relief and motions for summary judgment are of no moment.

Accordingly, we are of the opinion that the second hearing justice was correct in

his application of the law of the case doctrine to the lack of consideration issue.

B

The Alleged Fraud in the Inducement

It is also our view that the second hearing justice correctly applied the law of

the case doctrine with respect to Mr. Tucker’s claim of fraud in the inducement. It

is clear from the record that the first hearing justice ruled as a matter of law that

Mr. Tucker had failed to show all the required elements on which a finding of

fraud in the inducement could be based. In our opinion, that ruling of the first

hearing justice was correct.

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As such, when it came time for the second hearing justice to pass upon Ms.

DiMaggio’s motion for partial summary judgment, he quite properly looked to see

whether Mr. Tucker had submitted anything relative to the fraud in the inducement

claim other than his own affidavit, which did not add anything of factual

significance to what had been before the hearing justice at the preliminary

injunction hearing.

It should be emphasized that the first hearing justice found that Mr. Tucker

had failed to establish the elements necessary to support a fraud in the inducement

claim. It is to that ruling that the second hearing justice applied the law of the case

doctrine. He then noted that Mr. Tucker had not in the intervening years caused

the record to be expanded in a manner that might result in a different ruling as to

the absence of proof of the necessary elements for a fraud in the inducement claim.

We have clearly stated that a party opposing a motion for summary

judgment “will not be allowed to rely upon mere allegations or denials in [its]

pleadings.” Bourg, 705 A.2d at 971. “Rather, by affidavits or otherwise [that party

has] an affirmative duty to set forth specific facts showing that there is a genuine

issue of material fact.” Id.; see also Super. R. Civ. P. 56(e) (“When a motion for

summary judgment is made and supported as provided in this rule, an adverse

party may not rest upon the mere allegations or denials of the adverse party’s

pleading, but an adverse party’s response, by affidavits or as otherwise provided in

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this rule, must set forth specific facts showing that there is a genuine issue for trial.

If the adverse party does not so respond, summary judgment, if appropriate, shall

be entered against the adverse party.”).6

Mr. Tucker’s affidavit submitted in opposition to Ms. DiMaggio’s motion

for summary judgment simply reiterates his allegation that the Promissory Note

was the product of fraud in the inducement. The affidavit completely fails to

expand the record with respect to what the first hearing justice had held was

insufficient proof of the elements of a claim of fraud in the inducement. See

Hexagon Holdings, Inc. v. Carlisle Syntec Incorporated, 199 A.3d 1034, 1038 (R.I.

2019) (“[O]nce the moving party establishes ‘the absence of a material factual

issue, the party opposing the motion has an affirmative duty to establish either by

affidavit or by other means the material issue of fact to be decided.’”) (emphasis

added) (quoting Grissom v. Pawtucket Trust Co., 559 A.2d 1065, 1066 (R.I.

1989)). Mr. Tucker did not satisfy that obligation. Accordingly, we perceive no

error in the second hearing justice’s rejection of Mr. Tucker’s fraud in the

inducement claim on the basis of the law of the case doctrine.

6
It should be recalled that there is a requirement of particularity when
allegations of fraud are made. See Super. R. Civ. P. 9(b) (“In all averments of
fraud or mistake, the circumstances constituting fraud or mistake shall be stated
with particularity.”). It is clear that the drafters of Rule 9 deliberately made more
onerous the pleading requirements for a party which alleges “fraud or mistake.”

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V

Conclusion

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

Superior Court. The record may be returned to that tribunal.

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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 Debra DiMaggio v. Ethan Tucker.

No. 2021-234-Appeal.
Case Number
(PC 11-1302)

Date Opinion Filed February 21, 2023

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 Richard D. Raspallo

For Plaintiff:

Matthew T. Oliverio, Esq.
Attorney(s) on Appeal
For Defendant:

Andrew J. Tine, Esq.

SU-CMS-02A (revised November 2022)