Preserve Loses Appea

By Cynthia Drummond for BRVCA
April 24th 2024

RICHMOND – The Preserve Sporting Club has lost its appeal in Rhode Island Supreme Court of a Superior Court decision dismissing its lawsuit against the town. The opinion was released on Wednesday.

The First Complaint

In a notice dated March 30, 2021, Preserve attorneys John Tarantino and Nicole Benjamin notified then -Town Solicitor Karen Ellsworth that the Preserve was filing a complaint against the town seeking $100 million in damages. The notice also suggested that the Town Council might have to hold a meeting to approve the levy of a special tax to “pay this demand or otherwise resolve this case.”

Named as defendants were Richmond Finance Director Laura Kenyon and the members of the Town Council at the time: council President Nell Carpenter, and members James Palmisciano, Lauren Cacciola, Rich Nassaney, and Ronald Newman.

The complaint stated that the town had taken actions that had interfered with the Preserve’s “due process rights and rights to equal protection.”

The complaint further stated,

“The Preserve has been treated in arbitrary and capricious ways in attempting to have its plans reviewed and approved; necessary permits issued; projects scheduled for hearing; and ordinance changes voted on and approved.”

In a decision issued in Dec. 2022, Superior Court Justice Richard Licht granted the town’s motion to dismiss the complaint, based on the statute of limitations as well as an absence of facts supporting the Preserve’s claims. 

The Appeal

The Preserve filed its appeal of the Superior Court decision in Rhode Island Supreme Court in Jan. 2023. 

The town, represented by James Marusak, responded by filing a cross appeal that same month, “arguing that the three-year statute of limitations barred all of plaintiffs’ claims, not just the claims for substantive due process and tortious interference.”

In a 26-page opinion, Supreme Court Justices Paul Suttell, Maureen McKenna Goldberg, William P. Robinson, Erin Lynch Prata and Melissa Long upheld the lower court’s dismissal of the complaint.

The Supreme Court opinion states:

“With regard to the statute of limitations, the hearing justice [Licht] found that the substantive due-process claim and the tortious interference claims were subject to a three-year statute of limitations and that the continuing tort doctrine did not apply. He therefore determined that those claims [counts one through three] were barred because plaintiffs did not file their action until December 16, 2021.”

(The town actions cited by the Preserve occurred before 2017.)

Mark Reynolds, an attorney and Chairman of Richmond’s Tax Assessment Board of Revue, explained that the Preserve was attempting persuade the court that the three-year statute of limitations should have been “tolled” or paused.

“The Preserve was trying to say the statute of limitations should have been paused or not start running, because of conduct by the town,” he said. “It looks like the sole basis for affirming the decision of Judge Licht is the statute of limitations.”

Indeed, a footnote on the final page of the Supreme Court opinion reads:

“Because we conclude that each of the plaintiffs’ claims are barred by the statute of limitations, we need not address the remaining issues.”

Will There be Damages?

The town will not be awarded fees or damages of any kind.

“What’s known as the American Rule is, each side pays for its own attorney’s fees, and the only exceptions to that are if there’s a statute that forms the basis for a lawsuit that says you can recover your fees from the losing side,” Reynolds explained. “The town might be able to recover the costs of the appeal, but that’s not an attorney’s fee, and there wouldn’t be any costs here other than maybe, if they had to order a transcript. … So no, other than the Preserve having to pay their own lawyers to try to win this case, that’s it. The town cannot recover anything from them because they won.”