Bennett v. Steliga

Supreme Court

No. 2022-74-Appeal.
(PC 20-7250)

Kevin Bennett et al. :

v. :

Angela Steliga, individually and :
personally and as Trustee of The Angela
M. Steliga Living Trust dated
January 14, 2013, et al.

ORDER

Before the Court is a Petition for Reargument filed pursuant to Article I, Rule

25(a) of the Supreme Court Rules of Appellate Procedure, brought by the plaintiffs,

Kevin Bennett and Elizabeth Pawlson. After careful review of the plaintiffs’

petition, we are satisfied that the issues raised were considered and thoroughly vetted

by each member of the majority in the original appeal. Nor are we persuaded by our

dissenting colleague who essentially reiterates the arguments made in his previous

dissent.

Accordingly, we deny the plaintiffs’ Petition for Reargument.

Entered as an Order of this Court this 4th day of January, 2024.

By Order,

____________________________
Clerk

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Justice Lynch Prata did not participate.

Justice Robinson, dissenting. In one of his more famous poems, the

American poet John Greenleaf Whittier memorably wrote:

“For of all sad words of tongue or pen,

“The saddest are these: ‘It might have been!’”1

Whittier’s words came immediately to mind as I reflected upon this Court’s three to

one decision to deny reargument in this case. It is my unequivocal view that this

case “might have been” (and should have been) a straightforward contract law case,2

in which this Court would be required simply to determine whether the Superior

1
John Greenleaf Whittier, “Maud Muller,” in Selected Poems 54 (Brenda
Wineapple ed., 2004).
2
This case should have been decided pursuant to our basic contract law
principles. See, e.g., Durfee v. Ocean State Steel, Inc., 636 A.2d 698, 703 (R.I. 1994)
(“It is a basic tenet of contract law that the contracting parties can make as ‘good a
deal or as bad a deal’ as they see fit * * *.”); F.D. McKendall Lumber Co. v. Kalian,
425 A.2d 515, 518 (R.I. 1981) (noting “the general rule that a party who signs an
instrument manifests his assent to it and cannot later complain that he did not read
the instrument or that he did not understand its contents”); Psaty & Fuhrman, Inc. v.
Housing Authority of City of Providence, 76 R.I. 87, 93, 68 A.2d 32, 36 (1949) (“The
parties to a contract are free to agree upon any terms that are not illegal.”); see also
Papudesu v. Medical Malpractice Joint Underwriting Association of Rhode Island,
18 A.3d 495, 498-99 (R.I. 2011); Gorman v. Gorman, 883 A.2d 732, 738-39 n.10
(R.I. 2005); D’Antuono v. CCH Computax Systems, Inc., 570 F.Supp. 708, 714
(D.R.I. 1983); Murray v. Cunard S.S. Co., Ltd., 235 N.Y. 162, 166, 139 N.E. 226,
228 (1923) (Cardozo, J.) (stating that a person “who omits to read takes the risk of
the omission”).

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Court was correct in ruling that the Purchase and Sales agreement was valid and

whether that contractual agreement had been breached. 3 Regrettably, however, that

is not what happened. Instead of this being a simple contract law case, it has been

transmogrified into a multi-faceted and quixotic foray into issues which were never

meaningfully alluded to by the defendants, but which the Court (acting in a sua

sponte manner) has chosen to raise and decide in complete disregard of this Court’s

long-standing raise or waive jurisprudence. While my respect for the Court as an

institution and for the distinguished author of the majority opinion is real, I

nonetheless feel obliged to dissent, respectfully but most vigorously, from the

decision to deny the Petition for Reargument.

I do not intend to elaborate at length upon what I said in my dissent from the

majority opinion, although I do not retreat from one word of what I said there. See

Bennett v. Steliga, 300 A.3d 558, 578-82 (R.I. 2023) (Robinson, J., concurring in

part and dissenting in part). I consider it to be most unfortunate that the majority has

3
It is of capital importance to bear in mind that the majority opinion explicitly
noted that the hearing justice had granted “plaintiffs’ request for a declaratory
judgment that the P&S was valid, binding, and enforceable,” Bennett v. Steliga, 300
A.3d 558, 570 (R.I. 2023); and this Court then proceeded to explicitly affirm the
grant of summary judgment as to that issue. Id. at 572.
It is further noteworthy that, with respect to the issue of anticipatory
repudiation, the Court unequivocally stated: “[W]e affirm the hearing justice’s
conclusion that Steglia repudiated the P&S as a matter of law.” Bennett, 300 A.3d at
570. That is a ruling of great significance. See generally Jakober v. E.M. Loew’s
Capitol Theatre, Inc., 107 R.I. 104, 265 A.2d 429 (1970).

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chosen to address the issues of specific performance and attorneys’ fees4 in spite of

the fact that defendants (who were represented in the Superior Court proceedings by

a duly licensed Rhode Island attorney) chose not to properly raise either issue in the

trial court or in their statement filed pursuant to Article I, Rule 12A of the Supreme

Court Rules of Appellate Procedure.5

In my view, the majority opinion represents a radical break from decades of

unquestioned precedent relative to what issues are properly before this Court for

review; and, most unfortunately, the Court in this case has acted in a sua sponte

manner without the benefit of adversarial briefing and argument, which lie at the

very core of our system of justice. While the majority opinion undoubtedly reflects

the majority’s view of what justice requires, the plain blunt fact is that the opinion

is almost Kafkaesque in its determination to reach unpreserved issues without regard

4
In my partial concurrence and partial dissent that accompanied this Court’s
majority opinion, I indicated that I concurred “in the Court’s discussion of the
attorneys’ fees issue and in its decision to vacate the award of attorneys’ fees under
G.L. 1956 § 9-1-45.” Bennett, 300 A.3d at 578 (Robinson, J., concurring in part and
dissenting in part). Upon further reflection, it has dawned upon me that, in addition
to dissenting with respect to the specific performance issue, I should have also
dissented from the fact that the Court chose to ignore the raise or waive rule with
respect to the attorneys’ fees issue as well.
5
It should at all times be borne in mind that defendants were represented by
counsel throughout the course of this litigation. It is not the proper role of this Court
to introduce into a litigated case issues that, for whatever reason, counsel chose not
to raise.

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for settled principles of procedural law and appellate practice. I am aware that these

are strong words, but this is a moment when I would not be true to myself if I were

to speak in milder or more diplomatic language.6

I feel obliged to express once again my profound concern regarding the

Court’s departure from the raise or waive rule that has for so many years been a

fundamental principle of our appellate jurisprudence. See, e.g., In re Shy C., 126

A.3d 433, 434 (R.I. 2015) (“This Court has long adhered to an important

jurisprudential principle commonly referred to as ‘the raise or waive rule.’”);

Federal National Mortgage Association v. Malinou, 101 A.3d 860, 865 (R.I. 2014)

(“According to this Court’s well settled raise-or-waive rule, issues not properly

presented before the trial court may not be raised for the first time on appeal.”)

(emphasis added); State v. Figuereo, 31 A.3d 1283, 1289 (R.I. 2011) (“This Court

staunchly adheres to the ‘raise or waive’ rule, which requires parties to raise an issue

first in the trial court before raising it on appeal.”) (emphasis added) (footnote

omitted); State v. Bido, 941 A.2d 822, 828-29 (R.I. 2008) (“[A]s we have stated

6
I take no joy in writing this dissent from the majority’s denial of the Petition
for Reargument. I am well aware of the importance of collegiality, and I do not want
this dissent to be an apple of discord. Nevertheless, I feel very strongly about the
importance of our raise or waive rule, and I feel obliged to express my
disappointment at it having been so unnecessarily disregarded in this instance. I also
feel strongly that plaintiffs have correctly pointed out that it is fundamentally unfair
for this Court to have addressed the issues of specific performance and attorneys’
fees without their having been given any opportunity to address those issues.
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many times, this Court’s ‘raise-or-waive’ rule precludes our consideration of an

issue that has not been raised and articulated at trial. * * * It is well settled that a

litigant cannot raise an objection or advance a new theory on appeal if it was not

raised before the trial court.”) (emphasis added); see also Tempest v. State, 150 A.3d

179, 182-83 (R.I. 2016) (mem.) (Goldberg, J., dissenting) (“The raise-or-waive rule

mandates that an issue that has not been raised and articulated previously at trial is

not properly preserved for appellate review. * * * We have been steadfast in our

insistence on adherence to the raise-or-waive rule, especially mandating that the

issue first be addressed by the trial justice, the judicial officer to whom this issue is

entrusted. This is an important guarantor of fairness and efficiency.”) (internal

quotation marks omitted); DeMarco v. Travelers Insurance Company, 26 A.3d 585,

628 n.55 (R.I. 2011) (“[T]he raise or waive rule is not some sort of artificial or

arbitrary Kafkaesque hurdle. It is instead an important guarantor of fairness and

efficiency in the judicial process.”).

In addition to being staunchly insistent about preserving issues at the trial

court level, we have consistently been clear that an issue is deemed to have been

waived if it is not pointed out and discussed in what an appellant submits to this

Court in the form of a brief or a Rule 12A statement. 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 * * *.”); State v. Grullon, 984 A.2d 46, 51 n.9 (R.I. 2009)

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(“The defendant did not develop or even raise this argument in his pre-briefing

statement to this Court, and therefore, we need not consider this argument.”);

Johnston v. Poulin, 844 A.2d 707, 710 n.3 (R.I. 2004) (“Failure to argue an asserted

error of the trial court in [the] legal brief constitutes a waiver of the alleged error.”).

At the beginning of its discussion of the issue of specific performance, the

majority opinion states: “To be sure, Steliga’s presentation of the specific

performance issue is allusive, at best.” Bennett, 300 A.3d at 573. In my judgment,

that statement understates the reality of the case at bar. Quite apart from the fact that

defendants’ counsel chose not to chirp a word of disagreement when the trial justice

clearly stated that he would be ordering specific performance, the far more

significant point is that the same counsel chose not to articulate any sort of developed

argument concerning specific performance (or concerning attorneys’ fees for that

matter) when he prepared and submitted his statement which Rule 12A of the

Supreme Court Rules of Appellate Procedure requires be filed with this Court.

In my considered judgment, there is something fundamentally unfair in what

has transpired in this case. The plain blunt fact is that the specific performance issue

and the attorneys’ fees issue were decided by this Court without plaintiffs ever

having been afforded any opportunity to present to the Court arguments relative to

those issues. In my opinion, that is a deprivation of due process. It is elementary

that “the essential elements of procedural due process of law are notice and the

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opportunity to be heard * * *.” 16B Am. Jur. 2d Constitutional Law § 945 at 458

(2020); see also Grannis v. Ordean, 234 U.S. 385, 394 (1914) (“The fundamental

requisite of due process of law is the opportunity to be heard.”) (quoted with

approval in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314

(1950)); see generally Henry J. Friendly, Some Kind of Hearing, 123 U. Pa. L. Rev.

1267 (1975).

In my estimation, the Court’s opinion cannot be reconciled with principles of

fundamental fairness. Even if the defendants’ violation of the raise or waive rule

could somehow be countenanced, the fact is that the plaintiffs have never had a

chance to present argument before this Court concerning the issues that the Court

has opted sua sponte to address. In view of the very nature of our adversary system

of adjudication, it is improper for this Court to opine on issues without having been

exposed to any input from one of the parties (said lack of input being in no way the

fault of that party). See Tempest, 150 A.3d at 182 (Goldberg, J., dissenting) (“This

Court has had a long-standing and proud tradition of assuring that every person who

appears before us is provided with a full and fair opportunity to be heard on the

issues upon which the case is decided. * * * This Court has consistently refused to

hear issues that were not previously litigated and has never decided a case on an

issue that was not addressed by the trial justice or the parties.”).

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The Petition for Reargument should have been granted, and I respectfully

dissent from the denial of same.

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

ORDER COVER SHEET

Kevin Bennett et al. v. Angela Steliga, individually
Title of Case and personally and as Trustee of The Angela M.
Steliga Living Trust dated January 14, 2013, et al.
No. 2022-74-Appeal.
Case Number
(PC 20-7250)

Date Order Filed January 4, 2024

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

Source of Appeal Providence County Superior Court

Judicial Officer from Lower Court Associate Justice R. David Cruise

For Plaintiffs:

Derek M. Gillis, Esq.
Attorney(s) on Appeal
For Defendants:

Edward J. Mulligan, Esq.

SU-CMS-02B (revised November 2022)