In re Orlando A. Da Cruz

Supreme Court

No. 2022-355-Appeal.
(PM 19-10798)

In re Orlando A. Da Cruz. :

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. 2022-355-Appeal.
(PM 19-10798)

In re Orlando A. Da Cruz. :

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

OPINION

Chief Justice Suttell, for the Court. The plaintiff, Clara Martins, appeals

from a Superior Court judgment in favor of the intervenor, Isabel DaPina Costa,1

following the grant of the intervenor’s motion for summary judgment. 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 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.

1
Multiple spellings of the intervenor’s name appear in the record. We use the
iteration that appears in the motion to intervene. No disrespect is intended.

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I

Facts and Travel

Orlando A. Da Cruz2 died on May 1, 2008. His obituary refers to intervenor

as his “common-law- wife” [sic], and his death certificate names her as his spouse.

The plaintiff, Da Cruz’s mother, argues that intervenor was never married to her son,

and instead refers to intervenor—with whom Da Cruz had three children—as his

“live-in girlfriend.” The present case stems from this dispute.

Probate Proceedings

Born in Cape Verde, Da Cruz was a resident of Providence, Rhode Island, and

worked for Brown University at the time of his death. According to plaintiff, while

she and other members of her family were making funeral arrangements, intervenor

“presented herself to the funeral home” and “changed [Da Cruz’s] death certificate

under false pretenses.” The funeral home published Da Cruz’s obituary on May 5,

2008, and described intervenor therein as his common-law wife.

Two days later, on May 7, 2008, the funeral home filed Da Cruz’s death

certificate, which lists intervenor as not only his spouse but also the informant.3 In

2
The last name “Da Cruz” appears in the record either with or without a space. We
use the iteration that appears on his death certificate and citizenship documents. No
disrespect is intended.
3
An informant is someone who provides the funeral director, or another person
authorized to file a death certificate, with personal data about the decedent. See G.L.
1956 § 23-3-16(b).

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her prebriefing statement, plaintiff implies that these details of the death certificate

were unknown to her until proceedings commenced in the Providence Probate Court

the following month. As for the obituary, plaintiff has claimed that she and other

members of her family knew about and disputed the reference to intervenor as

Da Cruz’s common-law wife but did not seek a correction because they wanted to

“avoid additional family drama and distress.”

In probate court, an attorney entered her appearance on plaintiff’s behalf on

June 20, 2008, and plaintiff objected to the appointment of intervenor as

administratrix of Da Cruz’s estate soon thereafter. According to plaintiff, intervenor

named herself as Da Cruz’s spouse in the initial administration petition.4 Litigation

ensued, during which plaintiff concedes in her prebriefing statement that the details

of her son’s death certificate “came to light.”

On July 24, 2008, plaintiff and intervenor agreed to the appointment of a

third-party attorney as administrator of Da Cruz’s estate. The probate court closed

the estate in 2010.

In her filings in Superior Court, plaintiff represented that she “assumed that

the death certificate had been corrected” during the probate proceedings but realized

this was not the case “when she requested a new copy of her son’s death certificate.”

The plaintiff does not state exactly when she made this request, but a copy of the

4
The Providence Probate Court records are not part of the record on appeal.

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death certificate attached to the complaint was issued on March 9, 2018. Sometime

thereafter, “around 2019,” plaintiff sought legal advice regarding her own estate, and

her legal counsel in Cape Verde advised her that Da Cruz’s “erroneous death

certificate would interfere with her estate planning and that she should get it

corrected as soon as practicable.” (Brackets omitted.)

First Round of Motions

On November 7, 2019, plaintiff filed a pro se complaint in Superior Court

seeking to amend the death certificate. She also sent the Rhode Island Department

of Health’s Division of Vital Records a request to amend the death certificate that

same day. A Superior Court summons named the Department of Health as

defendant, and the Department filed an answer stating that it lacked “knowledge or

information sufficient to form a belief as to the truth of the matters asserted.” Then,

on December 16, 2019, Costa filed a motion to intervene, which the Superior Court

granted.

The intervenor also filed motions to dismiss and for judgment on the

pleadings. In the latter motion, intervenor argued that the limitations period

applicable to plaintiff’s claim, codified at G.L. 1956 § 9-1-13(a), had expired.

Section 9-1-13(a) states that, “[e]xcept as otherwise specially provided, all civil

actions shall be commenced within ten (10) years next after the cause of action shall

accrue, and not after.” According to intervenor, the complaint and attachments

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“ma[d]e it clear” that plaintiff knew in 2008 that her son’s death certificate named

Costa as his spouse; therefore, she no longer had a viable cause of action in 2019

when she filed the complaint.

In her memorandum in opposition to intervenor’s motion for judgment on the

pleadings, plaintiff—now represented by an attorney—made two arguments

regarding the statute of limitations. Her principal argument was that Ҥ 9-1-13 [did]

not apply * * * because [hers was] not a products liability complaint,” nor, for that

matter, one of negligence, which was the type of case intervenor cited in her motion.

In the alternative, plaintiff argued that the statute of limitations was tolled until 2019,

when she sought legal advice regarding her estate, because only then did she

discover that her son’s unamended death certificate might affect her estate planning

in Cape Verde. As support, plaintiff cited Martin v. Howard, 784 A.2d 291 (R.I.

2001), in which this Court held that, “[i]n some ‘narrowly circumscribed factual

situations,’ * * * when the fact of the injury is unknown to the plaintiff when it

occurs, the applicable statute of limitations will be tolled and will not begin to run

until, in the exercise of reasonable diligence, the plaintiff should have discovered the

injury or some injury-causing wrongful conduct.” Martin, 784 A.2d at 299 (quoting

Renaud v. Sigma-Aldrich Corporation, 662 A.2d 711, 714 (R.I. 1995)). This

exception is known as the “discovery rule.” See Mendes v. Factor, 41 A.3d 994,

1005-06 (R.I. 2012).

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In contrast to intervenor in her motion, plaintiff discussed § 9-1-13 in her

memorandum without reference to subsection (a). In her reply, intervenor observed

that, while subsection (b) provides a special rule for the statute of limitations in

products-liability cases, subsection (a) provides the general rule for “all civil

actions” and thus governed plaintiff’s claim. She disregarded plaintiff’s attempt to

distinguish her claim from the negligence cases that intervenor cited in her motion.

As for plaintiff’s invocation of Martin, intervenor contended that the discovery rule

did not apply because the record indicated that, “as far back as 2008,” plaintiff knew

or should have known that her son’s death certificate referred to intervenor as his

spouse and, furthermore, that this might have legal implications regarding the assets

to which he was entitled.

Second Round of Motions

The Superior Court did not render a decision on either of intervenor’s 2019

motions. Almost three years later, in July 2022, intervenor filed a second set of

motions, which this time included a motion for summary judgment. Again, in her

memorandum in support of her motion for judgment on the pleadings, Costa argued

that plaintiff lacked a viable cause of action because the applicable statute of

limitations—set forth in § 9-1-13(a)—had expired. According to intervenor, “[t]he

pleadings ma[d]e it clear that [plaintiff] was aware of the alleged wrongdoing and

failed to pursue it.”

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In her memorandum in opposition to intervenor’s motion, plaintiff focused on

the discovery-rule exception and dropped the argument that § 9-1-13 did not apply.

Indeed, this time she referred explicitly to § 9-1-13(a). The intervenor’s reply,

however, both invoked and refuted plaintiff’s earlier argument that the statute was

limited to products-liability cases and was therefore inapplicable.

Summary-Judgment Hearing

The parties came before the Superior Court on October 25, 2022, for a hearing

on intervenor’s motions. The hearing justice noted that he had “read everything,”

but he asked the parties whether they had “anything to add to what [they] filed[.]”

The plaintiff raised two arguments that did not appear in her memoranda. First,

plaintiff revived the argument, albeit in passing, that § 9-1-13(a) is “a products

liability statute, and I don’t think it applies * * *.” Second, she argued that, even if

the statute applied, her alleged injury occurred in 2010 at the close of the probate

proceedings—when she assumed her son’s death certificate had been corrected—

and not in 2008; therefore, the ten-year statute of limitations had not expired when

she filed her complaint in 2019.

Following plaintiff’s arguments, the hearing justice announced his decision

from the bench. To begin, having notified the parties the previous day of his

intentions, the hearing justice converted intervenor’s several motions into a single

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motion for summary judgment. The hearing justice made this decision because the

parties’ filings relied on material outside the scope of the pleadings.

The hearing justice next considered intervenor’s argument that plaintiff lacked

a viable cause of action because the applicable statute of limitations had expired.

After finding that § 9-1-13(a) applied to plaintiff’s claim, the hearing justice stated

that the “parties do not dispute the facts pertinent to the statute of limitations

analysis.” According to the hearing justice, plaintiff did not dispute, and had even

conceded, not only that she was aware of intervenor’s “allegedly wrongful conduct”

in 2008, but also “that she assumed that all issues related to her son and the Death

Certificate had been resolved in the Probate Court such that she did not pursue

correction of the Death Certificate after the estate was closed.” The hearing justice

concluded that the statute-of-limitations issue therefore presented a question of law,

because there were “no predicate facts to be determined by a fact finder[.]”

From there, the hearing justice examined plaintiff’s contention that her claim

warranted an exception to the statute of limitations under the discovery rule; he

concluded that it did not. “[T]he first problem,” he explained, was that plaintiff

knew in 2008 that her son’s death certificate named intervenor as his spouse, which

a reasonable person should have known could affect the administration of her son’s

estate and her estate as well. The hearing justice also noted that plaintiff “was

directly involved in the probate proceedings * * * and sought to establish that

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[i]ntervenor was not legally married to [Da Cruz] to prevent [i]ntervenor from

becoming a beneficiary of [his] estate.” According to the hearing justice, this made

unreasonable her assumption that the proceedings resolved all issues concerning her

son’s death certificate, thus undercutting the second argument that she made at the

hearing but not in her memoranda. Finally, the hearing justice noted that “the Rhode

Island Probate Court is not vested with the jurisdiction to declare legal relations

between individuals,” thereby making plaintiff’s assumption even less reasonable.

(Citing G.L. 1956 § 8-9-9.) In the exercise of reasonable diligence, the hearing

justice concluded, plaintiff should have discovered her alleged injury in 2008, and

so the statute of limitations had not been tolled. He therefore granted intervenor’s

motion for summary judgment.

The Superior Court entered final judgment in favor of intervenor on December

1, 2022. The plaintiff filed a premature but valid notice of appeal on November 21,

2022.

II

Standard of Review

“This Court will review the grant of a motion for summary judgment de novo,

employing the same standards and rules used by the hearing justice.” Apex

Development Company, LLC v. Rhode Island Department of Transportation, 291

A.3d 995, 998 (R.I. 2023) (quoting Nelson v. Allstate Insurance Company, 228 A.3d

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983, 984-85 (R.I. 2020)). “We will affirm a trial court’s decision only if, after

reviewing the admissible evidence in the light most favorable to the nonmoving

party, we conclude that no genuine issue of material fact exists and that the moving

party is entitled to judgment as a matter of law.” Id. (quoting Nelson, 228 A.3d at

985). “Furthermore, the nonmoving party bears the burden of proving by competent

evidence the existence of a disputed issue of material fact and cannot rest upon mere

allegations or denials in the pleadings, mere conclusions or mere legal opinions.” Id.

(quoting Nelson, 228 A.3d at 985).

III

Discussion

The plaintiff raises only one argument on appeal. As before, she contends that

§ 9-1-13(a) does not apply, but now her argument is that, although § 9-1-13(a)

provides a general rule for “all civil actions,” the complaint she filed in Superior

Court is not a civil action. The plaintiff points instead to a different statute, codified

at G.L. 1956 § 23-3-21, which governs the correction and amendment of vital

records. According to plaintiff, this separate statute controls her claim, and because

it does not provide for a limitations period, the filing of her complaint was never

time constrained. Because plaintiff did not raise this argument in Superior Court,

however, it has not been preserved for appellate review.

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“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.”

Donnelly Real Estate, LLC v. John Crane Inc., 291 A.3d 987, 994 (R.I. 2023)

(quoting Borgo v. Narragansett Electric Company, 275 A.3d 567, 576-77 (R.I.

2022)). Here, plaintiff’s specific argument on appeal regarding the statute’s

application is not the argument she made in Superior Court. In other words, plaintiff

“advance[d] a new theory on appeal [that] was not raised before the trial court.” State

v. Bido, 941 A.2d 822, 828-29 (R.I. 2008). She has therefore waived this argument

on appeal.

Even if plaintiff had not waived this argument, however, we would hold that

§ 9-1-13(a) applies to her claim. Section 23-3-21 governs the correction of vital

records, which plaintiff has sought with respect to her son’s death certificate.

Although the statute lacks a discrete limitations period for making requests to amend

vital records, the State Registrar for Vital Records may not grant certain requests

without a court order. See § 23-3-21.5 The plaintiff concedes that hers is one such

request. Nonetheless, she argues that Ҥ 23-3-21 is a bureaucratic mistake correction

statute and cannot be controlled by any statute of limitations[,]” and therefore it does

not matter when she filed her complaint in Superior Court.

5
Regulations provide that the State Registrar for Vital Records has the sole power
to amend vital records. 216 RICR 10-10-1.37(A).

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In certain cases, § 23-3-21 might operate to correct “bureaucratic mistake[s],”

such as transcription errors, misspellings, and the like. The plaintiff’s case, however,

is not one of them. At the heart of plaintiff’s request to correct her son’s death

certificate is not some minor typographical error, but rather an allegation of fraud,

which the state registrar, as a “ministerial officer, possessing limited discretion,”

lacks power to adjudicate. Souza v. O’Hara, 121 R.I. 88, 92, 395 A.2d 1060, 1062

(1978). Furthermore, intervenor has a clear interest in the subject of plaintiff’s

complaint, that is, whether she is recognized by this state as the surviving spouse of

Orlando A. Da Cruz. Were the state to grant plaintiff the relief she seeks, this would

have significant implications for intervenor’s legal rights and obligations, to say

nothing of dignitary or emotional harm. Indeed, this is what enabled her to intervene

in this matter to begin with. See Super. R. Civ. P. 24(a).

It may just be that not all requests to amend vital records are subject to a statute

of limitations, but then again, not all requests to amend vital records require the

applicant to commence a civil action. In 1910, this Court defined “[t]he term ‘civil

action,’ as used in statutes,” to mean “a proceeding in a court of justice by one party

against another for the enforcement or protection of a private right or the redress of

a private wrong.” Thrift v. Thrift, 30 R.I. 357, 363, 75 A. 484, 487 (1910). More

recently, we defined “civil action,” in the context of another statute, as a “judicial

proceeding which is commenced by the filing of a complaint and all other required

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documents together with the fees prescribed by law.” Johnson v. Johnson, 264 A.3d

835, 839 (R.I. 2021); see also Super. R. Civ. P. 2 (“There shall be one (1) form of

action to be known as ‘civil action.’”). According to either definition, the plaintiff

commenced a civil action when she filed her complaint in Superior Court to amend

her son’s death certificate. Because the statute of limitations under § 9-1-13(a)

applies to “all civil actions” unless otherwise provided, and because the legislature

has not enacted a special rule for requests to amend vital records, § 9-1-13(a) applies

to the plaintiff’s claim. Consequently, we concur with the hearing justice that the

plaintiff’s complaint is barred by the statute of limitations set forth in § 9-1-13(a).

IV

Conclusion

For the foregoing reasons, the judgment of the Superior Court is affirmed.

The papers in this case may be remanded to the Superior Court.

Justice Long did not participate.

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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 In re Orlando A. Da Cruz.

No. 2022-355-Appeal.
Case Number
(PM 19-10798)

Date Opinion Filed January 19, 2024

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

Written By Chief Justice Paul A. Suttell

Source of Appeal Providence County Superior Court

Judicial Officer from Lower Court Associate Justice Kevin McHugh

For Plaintiff:

Christopher J. Petrarca, Esq.
Attorney(s) on Appeal
For Intervenor:

Steven A. Robinson, Esq.

SU-CMS-02A (revised November 2022)