John H. Williams v. Elizabeth McDonough Noonan

Supreme Court

No. 2024-228-Appeal.
(KC 20-362)

John H. Williams et al. :

v. :

Elizabeth McDonough Noonan 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,
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made before the opinion is published.
Supreme Court

No. 2024-228-Appeal.
(KC 20-362)

John H. Williams et al. :

v. :

Elizabeth McDonough Noonan et al. :

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

OPINION

Justice Robinson, for the Court. The plaintiffs,1 John H. Williams and

Warwick Cove Marina, Inc. (the Marina), appeal from an April 2, 2024 final

judgment in favor of the defendants, Attorney Elizabeth McDonough Noonan and

the law firm Adler Pollock & Sheehan P.C. (Adler Pollock). The plaintiffs contend

that the hearing justice erred in granting the defendants’ motion for summary

1
Throughout this opinion, we will use the term “plaintiffs” to refer collectively
to Warwick Cove Marina, Inc. and John H. Williams in his capacity as president and
sole stockholder of all shares of that corporation. However, the plaintiffs have not
provided any evidence other than Mr. Williams’s own conclusory affidavit (which
contradicts his prior deposition testimony) to support their assertion that Mr.
Williams ever retained Attorney Noonan or her law firm to represent him personally.
Accordingly, we do not view Mr. Williams as being a party to this case in his
individual capacity. See Mruk v. Mortgage Electronic Registration Systems, Inc., 82
A.3d 527, 533 (R.I. 2013) (“This Court has made it clear that ‘conclusory assertions
in an affidavit filed in opposition to a motion for summary judgment are inadequate
to establish the existence of a genuine issue of material fact * * *.’”) (quoting Soave
v. National Velour Corporation, 863 A.2d 186, 192 (R.I. 2004)).

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judgment because “there were substantial facts presented in the verified complaint

and the [plaintiffs’] affidavit to create material issues of fact” relative to the

defendants’ statute of limitations argument. The plaintiffs also contend that the

hearing justice’s “decision that there was no attorney-client relationship as it relates

to Mr. Williams * * * was clearly wrong on that issue.” It is the plaintiffs’ further

contention that, because “one can amend interrogatories prior to the time when

decision is closed,” the hearing justice erred in ruling that there was no viable legal

malpractice claim given that they had failed to present any expert testimony.

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. After considering the parties’ written and oral submissions and

after carefully reviewing the record, we conclude that cause has not been shown and

that this case may be decided 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

This is an action alleging legal malpractice (Count I) stemming from Attorney

Noonan’s representation of the Marina in connection with various appeals

concerning taxes allegedly due to the City of Warwick, Rhode Island (the City).

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The Marina is the owner of certain property located in Warwick. According

to the Verified Complaint, John H. Williams “is the president and sole stockholder

of all shares of” the Marina. In 2008, by way of a written engagement letter, Mr.

Williams retained another Adler Pollock attorney (not a defendant in this case) with

respect to a dredging permit relative to certain property owned by the Marina. In

2010, during the course of that attorney’s representation of the Marina concerning

the dredging permit and without entering into a separate written retainer agreement,

Mr. Williams retained Attorney Noonan and Adler Pollock to provide legal services

to represent the Marina in connection with an ongoing controversy with the City

regarding various property taxes imposed by the City.

Some ten years later, the adequacy (vel non) of those legal services would be

the subject of the instant case. 2 And as we explain infra, the hearing justice

ultimately granted summary judgment on the basis of the pertinent statute of

limitations—a ruling that we analyze and eventually sustain in Part IV of this

opinion. Accordingly, it is not necessary for us to describe in detail the extensive

professional efforts of Attorney Noonan to resolve the Marina’s tax issues. The

existence of those efforts is undisputed. The contemporaneous discussions and

2
The defendants were retained by the Marina in 2010. The plaintiffs
commenced this action on April 21, 2020. Final judgment in defendants’ favor was
entered on April 2, 2024.

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contacts between Mr. Williams and Attorney Noonan concerning those efforts are

specifically alluded to in Mr. Williams’s deposition testimony.3

After defendants had represented the Marina for several years, most notably

in the form of attempts by Attorney Noonan to reach a settlement agreement with

the City, the Marina decided to seek different legal representation. In mid-December

of 2016, Attorney Robert J. Caron was engaged to represent the Marina. On January

6, 2017, Attorney Caron sent a letter to Attorney Noonan and stated that he had been

retained by Mr. Williams “to take over his property tax matters currently pending

before the City of Warwick.” Thereafter, Attorney Noonan did not perform any

further legal work relative to the Marina’s tax appeals. On February 15, 2017,

Attorney Noonan tendered to Attorney Caron her files relative to the Marina’s tax

issues.

Over three years later, on April 21, 2020, plaintiffs filed a two-count Verified

Complaint in the Superior Court. In Count I, plaintiffs alleged that “the legal

services provided by the Defendants were negligent and constituted legal

malpractice” because “the Defendant [sic] negligently failed to act with a degree of

competence necessary to zealously represent the interest of the Plaintiffs.” In a

separate count (Count II), plaintiffs alleged: “The negligent representation and/or

3
It is noteworthy that, at one point in his deposition, Mr. Williams testified that,
while Attorney Noonan’s efforts were ongoing, he reached the conclusion that “the
homework” was not being done.

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legal services provided to the Plaintiff [sic] by the Defendant [sic] are a breach of

the terms and conditions of the contract between the parties.” 4

On November 9, 2023, after both parties had engaged in the discovery

process, defendants filed a motion for summary judgment, in which they contended

(1) that plaintiffs’ claims of negligence and legal malpractice were barred by the

three-year statute of limitations established by G.L. 1956 § 9-1-14.3; (2) that Mr.

Williams “lack[ed] standing to pursue a cause of action in his individual capacity[;]”

and (3) that “the undisputed facts fail[ed] to support a claim for legal malpractice”

because plaintiffs could not “establish duty or causation without an expert” and

because the “[u]ndisputed evidence fail[ed] to demonstrate that Defendants fell

below the requisite standard of care.”

In response, plaintiffs contended (1) that “[t]here [was] ample evidence that

supports a showing that Plaintiff John H. Willaims [sic] had a contractual agreement

with the Defendants[;]” (2) that “[t]here [was] no evidence in the record that supports

Defendants’ contention” that “Plaintiffs were aware of the alleged malpractice of the

4
It will be recalled that Count II of the Verified Complaint set forth a breach
of contract claim. Assuming without deciding that such a claim was viable in view
of the pleaded facts, we need not address it because plaintiffs’ statement filed
pursuant to Article I, Rule 12A of the Supreme Court Rules of Appellate Procedure
presents no argument relative to Count II. Therefore, we deem the issue waived.
See, e.g., Rice v. State, 38 A.3d 9, 16 n.10 (R.I. 2012) (“We note that this Court will
deem as waived issues that the appellant fails to brief * * *.”); Merida v. State, 93
A.3d 545, 552 (R.I. 2014).

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Defendants at the time of Defendants’ withdrawal of counsel for the Plaintiffs[;]” (3)

that “receiver Richard Land testified at his deposition that the failure to resolve the

tax issues, was the sole reason for the appointment of a receiver and the ultimate sale

of the assets of the Plaintiffs[;]”5 and (4) that “a review of the court records verifies

the fact that no proceedings, with the exception of the initial filing of the complaints,

were performed by the Defendants on the Plaintiffs’ behalf.”

On March 25, 2024, a hearing on defendants’ motion for summary judgment

was held, at the conclusion of which the hearing justice ruled (1) that Mr. Williams

did not have standing to sue for legal malpractice because he “was not represented

in his individual capacity and the attorney/client relationship regarding the taxes and

the asserted [legal] malpractice claims solely extend[ed] to Warwick Cove

Marina[;]” (2) that the three-year statute of limitations had run as to plaintiffs’

claims; (3) that plaintiffs’ failure to provide expert testimony as to the standard of

care was “detrimental to their legal malpractice claim[;]” and (4) that defendants did

not cause plaintiffs’ injuries.

On April 2, 2024, an order reflecting the hearing justice’s decision was

entered; on the same day, final judgment in favor of defendants was entered. The

plaintiffs filed a timely notice of appeal on April 15, 2024.

5
At some point after Attorney Noonan no longer represented the Marina, a
receivership action was commenced. The substance of what transpired in that regard
is of no relevance to the case at bar.

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II

Issues on Appeal

The plaintiffs contend that the hearing justice erred in granting the motion for

summary judgment because “there were substantial facts presented in the verified

complaint and the [plaintiffs’] affidavit to create material issues of fact on whether

the three (3) year exception began to run.” They also contend that the hearing

justice’s “decision that there was no attorney-client relationship as it relates to Mr.

Williams * * * was clearly wrong on that issue.” The plaintiffs further contend that

the hearing justice erred in ruling “that there was no legal malpractice based upon

the fact that the * * * [p]laintiffs failed to present any expert opinion” because “one

can amend interrogatories prior to the time when decision is closed.”

III

Standard of Review

This Court reviews a hearing justice’s grant of summary judgment de novo,

“utiliz[ing] 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). In doing

so, “we 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.” Id. (quoting Lynch v. Spirit

Rent-A-Car, Inc., 965 A.2d 417, 424 (R.I. 2009)). It is also a basic principle that

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“[t]he party opposing summary judgment bears the burden of proving, by competent

evidence, the existence of facts in dispute.” Meeks v. Stop & Shop Supermarket

Company, LLC, 289 A.3d 1179, 1183 (R.I. 2023) (internal quotation marks and

deletion omitted). The nonmoving party may not “rest on allegations or denials in

the pleadings or on conclusions or legal opinions.” Classic Entertainment & Sports,

Inc. v. Pemberton, 988 A.2d 847, 849 (R.I. 2010) (quoting Accent Store Design, Inc.

v. Marathon House, Inc., 674 A.2d 1223, 1225 (R.I. 1996)).

In addition, it is important to recall that we have stated that “[t]he application

of the statute of limitations is a matter of law for the trial justice to determine.”

Hanson v. Singsen, 898 A.2d 1244, 1248 (R.I. 2006) (quoting Ashey v. Kupchan, 618

A.2d 1268, 1270 (R.I. 1993)); see also Hall v. Insurance Company of North America,

727 A.2d 667, 669-70 (R.I. 1999) (“The question of whether a statute of limitations

has run against a plaintiff’s claim is * * * a question of law * * *.”). Accordingly,

we “review de novo the propriety of the hearing justice’s statute of limitations

determination.” Heflin v. Koszela, 774 A.2d 25, 31 (R.I. 2001); see Balletta v.

McHale, 823 A.2d 292, 294 (R.I. 2003).

IV

Analysis

As we have noted, plaintiffs contend that, in granting defendants’ motion for

summary judgment, the hearing justice erred in concluding as a matter of law that

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the statute of limitations had run on plaintiffs’ claim of legal malpractice; they

contend that “there were factual issues on when [plaintiffs] knew or should have

known the alleged legal malpractice.” It is plaintiffs’ position that they “did not

know of the alleged malpractice until the Receiver’s first and final report * * *.” For

their part, defendants contend that the hearing justice correctly concluded that the

statute of limitations bars the instant claims.

General Laws 1956 § 9-1-14.3 sets forth the three-year statute of limitations

governing legal malpractice actions. The discovery rule exception to the plain

language of the statute of limitations (codified at § 9-1-14.3(2)) tolls application of

the three-year statute of limitations for injuries due to alleged legal malpractice

which “could not in the exercise of reasonable diligence be discoverable” at the time

of the occurrence of the act or acts giving rise to the claim of malpractice. See

Broccoli v. Manning, 208 A.3d 1146, 1149 (R.I. 2019).

We have held that the availability (vel non) of the discovery rule is governed

by an objective standard. Sharkey v. Prescott, 19 A.3d 62, 66 (R.I. 2011). That

standard requires only that “the plaintiff be aware of facts that would place a

reasonable person on notice that a potential claim exists.” Id. (quoting Canavan v.

Lovett, Schefrin and Harnett, 862 A.2d 778, 784 (R.I. 2004)); see Behroozi v.

Kirshenbaum, 128 A.3d 869, 873 (R.I. 2016). In the context of the discovery rule,

the standard for reasonable diligence “is based upon the perception of a reasonable

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person placed in circumstances similar to the plaintiff’s, and also upon an objective

assessment of whether such a person should have discovered that the defendant’s

wrongful conduct had caused him or her to be injured.” Mills v. Toselli, 819 A.2d

202, 205 (R.I. 2003) (quoting Martin v. Howard, 784 A.2d 291, 300 (R.I. 2001)).

It is our opinion that the discovery rule exception does not apply in the present

case and that plaintiffs’ claim of legal malpractice is therefore barred by the

three-year statute of limitations. We first note that, as the Verified Complaint states,

Mr. Williams retained Attorney Noonan and Adler Pollock to represent the Marina

in its tax appeals in or about 2010. They continued to represent the Marina with

respect to those appeals until Mr. Williams retained Attorney Caron to represent the

Marina regarding the tax appeals in December of 2016. Accordingly, the

attorney-client relationship between Attorney Noonan and the Marina terminated at

the latest on February 15, 2017, when Attorney Noonan finalized the transfer of the

files regarding this case to Attorney Caron. Therefore, we perceive no error in the

hearing justice’s ruling that the three-year statute of limitations for plaintiffs’ claim

of legal malpractice began to run on February 15, 2017. (It will be recalled that

plaintiffs’ Verified Complaint was not filed in the Superior Court until April 21,

2020.)

With respect to plaintiffs’ contention that they “did not know of the alleged

malpractice until the Receiver’s first and final report,” a review of the record

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contradicts this contention. Mr. Williams testified at his deposition that he was

aware of Attorney Noonan’s work to resolve the Marina’s tax appeals through

negotiations with the City at the time that those negotiations took place, as evidenced

by e-mail communications and bills for legal services. Furthermore, Mr. Williams

and Attorney Noonan both testified in their respective depositions as to specific

disagreements between the two of them with respect to strategic decisions. Mr.

Williams testified in detail as to his concerns with respect to Attorney Noonan’s

negotiation strategy. His testimony indicates that he was aware of specific work that

Attorney Noonan conducted and that he was present for substantive negotiations.

He stated that, in his opinion, “the homework” was not done and that his

understanding of the negotiations in which Attorney Noonan participated is that

“[t]hey were futile.” It is clear that Mr. Williams’s deposition testimony

demonstrates that he was “aware of facts” that would lead him to believe that a

potential malpractice claim existed. See Behroozi, 128 A.3d at 873 (holding that the

plaintiff “was clearly aware of facts” that could give rise to a possible malpractice

claim) (internal quotation marks omitted).

We have also scrutinized the statements set forth in Mr. Williams’s affidavit,

which was filed in opposition to defendants’ motion for summary judgment. Mr.

Williams’s statement in his affidavit that “Plaintiffs did not discover the negligent

legal representation by the Defendants until after the receiver issued his First and

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Final Report” is inconsistent with statements that he made at his deposition. In that

regard, we have expressed our “full agreement” with the following statement of the

United States Court of Appeals for the First Circuit:

“[W]hen a party has given answers to unambiguous
questions in discovery, that party cannot create a conflict
and resist summary judgment with an affidavit that is
clearly contradictory, unless there is a satisfactory
explanation of why the testimony has changed.” Weaver v.
American Power Conversion Corporation, 863 A.2d 193,
200-01 (R.I. 2004) (internal quotation marks and brackets
omitted) (quoting Hernandez-Loring v. Universidad
Metropolitana, 233 F.3d 49, 54 (1st Cir. 2000)); see
Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1, 4-5
(1st Cir. 1994).

Notably, plaintiffs have offered no explanation for the apparent change in testimony.

And it is further our view that the “PLAINTIFFS’ AFFIDAVIT,” which was sworn

to by Mr. Williams, was insufficient to establish the existence of a genuine issue of

material fact with respect to the time of discovery of any alleged legal malpractice

in this case.

It is thus our opinion that the hearing justice did not err in concluding that the

statute of limitations had run with respect to plaintiffs’ claim of legal malpractice

and that the discovery rule exception did not apply. Accordingly, it is our view that

the hearing justice correctly granted defendants’ motion for summary judgment.

Because we have determined that the application of the three-year statute of

limitations set forth in § 9-1-14.3 bars Count I of the plaintiffs’ complaint, we need

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not address the plaintiffs’ remaining contentions. See Grady v. Narragansett Electric

Company, 962 A.2d 34, 42 n.4 (R.I. 2009) (noting this Court’s “usual policy of not

opining with respect to issues about which we need not opine”); see also Summit

Insurance Company v. Stricklett, 199 A.3d 523, 533 (R.I. 2019).

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.

Justice Goldberg participated in the decision, but she retired prior to its

publication.

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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

John H. Williams et al. v. Elizabeth McDonough
Title of Case
Noonan et al.
No. 2024-228-Appeal.
Case Number
(KC 20-362)

Date Opinion Filed May 21, 2026

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

Written By Associate Justice William P. Robinson III

Source of Appeal Kent County Superior Court

Judicial Officer from Lower Court Associate Justice Kevin F. McHugh

For Plaintiffs:

Thomas R. DeSimone, Esq.
Attorney(s) on Appeal
For Defendants:

Marc DeSisto, Esq.

SU-CMS-02A (revised November 2022)