Richard D. Toohey v. Dean C. DeMello as agent of Joan M. DeMello Trust Agreement and Deed

Supreme Court
No. 2019-65-Appeal.
(WC 18-158)
Richard D. Toohey :
v. :
Dean C. DeMello as agent of Joan M. :
DeMello Trust Agreement and Deed.
ORDER
The plaintiff, Richard D. Toohey, appeals pro se from an October 24, 2018 order of the
Washington County Superior Court quashing a lis pendens1 filed by Mr. Toohey with respect to
real property located at 346 Vanderbilt Lane in Portsmouth, Rhode Island, and enjoining and
restraining him from “taking any further action that may create a cloud on the title of 346
Vanderbilt Lane.”2 Mr. Toohey contends that he was not given adequate notice pursuant to Rule
6(c) of the Superior Court Rules of Civil Procedure that the motion seeking the quashing of the lis
pendens would be heard on the date of the hearing at issue, October 12, 2018. He further contends
that the hearing justice abused his discretion in quashing the lis pendens because, in Mr. Toohey’s
view, his lawsuit was “an action against the real property.” He further alleges that the hearing
1
“The term ‘lis pendens’ literally means litigation or suit pending[; it] * * * is not a lien but
merely puts all prospective purchasers on notice that there is a suit pending involving an issue of
title to the real property.” George v. Oakhurst Realty, Inc., 414 A.2d 471, 474 (R.I. 1980).
2
We note that the October 24, 2018 order also denied Mr. Toohey’s motion for a preliminary
injunction. However, Mr. Toohey has not raised any issues as to that motion before this Court in
his statement or his supplemental statement filed pursuant to Article I, Rule 12A of the Supreme
Court Rules of Appellate Procedure. Therefore, that issue is not before us. See Terzian v.
Lombardi, 180 A.3d 555, 557 (R.I. 2018) (“We have consistently made it clear that, under our
raise-or-waive rule, [e]ven when a party has properly preserved its alleged error of law in the lower
court, a failure to raise and develop it in its briefs constitutes a waiver of that issue on appeal and
in proceedings on remand.”) (internal quotation marks omitted).
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justice’s enjoining him from clouding the title to the property at issue “equates to a summary
judgment without according [Mr. Toohey the] benefit of [his] right to answer.”
This case came before the Supreme Court for oral argument 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 examining the written and oral submissions of the parties and after a thorough
review of the record, we are of the opinion that this appeal may be resolved without further briefing
or argument. For the reasons set forth in this order, we affirm the order of the Superior Court.
Mr. Toohey represented to the Superior Court at the October 12, 2018 hearing that his
mother passed away on August 17, 2015 and that she had had five children. He stated that the
trust at issue was executed by his mother, Joan M. DeMello, when she was 92 years old. He further
stated that Dean DeMello, who is Mr. Toohey’s half brother, is the sole beneficiary of the trust.
In his Rule 12A statement, Mr. Toohey represented that the function of the trust was to hold the
real property located at 346 Vanderbilt Lane. As such, Mr. Toohey has represented that he and his
other siblings have been disinherited with respect to that property.
Mr. Toohey filed an initial action—WC-17-606—against Dean DeMello in his individual
capacity, and he filed a notice of lis pendens with respect to the 346 Vanderbilt Lane property.
Dean DeMello moved to quash that lis pendens. The hearing justice in that case granted Mr.
DeMello’s motion, stating that “nowhere” in Mr. Toohey’s complaint was there “a suit or an
allegation pertaining to title to this property * * *.” That hearing justice went on to fault Mr.
Toohey for bringing his action against Mr. DeMello individually and not in his capacity as trustee
of the trust at issue. Mr. Toohey then filed the instant action against Mr. DeMello in his capacity
as the agent of the trust and also, as Mr. Toohey points out, the agent of the deed. In the complaint
in this case, he indicated that he was challenging the deed to the property at issue and was alleging
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“tortious interference with an expected inheritance” and forgery; and he further indicated that he
was raising issues as to his mother’s mental competency. Mr. Toohey then filed a new notice of
lis pendens with respect to the property at issue. It is the quashing of that lis pendens, which
occurred at the close of the October 12, 2018 hearing, that we are presented with in this appeal.
The hearing justice in this case, in quashing the lis pendens, stated that the Superior Court justice
in the previous case had quashed an earlier lis pendens both on procedural grounds and due to the
fact that neither the complaint nor the objection related to an allegation concerning title to the
property. The hearing justice then proceeded to state: “That remains true in this case.”
Mr. Toohey contends before this Court that he did not receive the proper ten days notice
provided for in Rule 6(c) between the filing of the motion to quash the lis pendens and the hearing
at which the hearing justice decided the issue. However, after a thorough review of the transcript
of the October 12, 2018 hearing, it is clear to this Court that Mr. Toohey never brought to the
attention of the hearing justice the issue of the timing of the motion or of his lack of preparedness
to argue that motion on that day. He certainly never objected to the motion to quash the lis pendens
being discussed and decided that day; indeed, he engaged in the discussion. As such, he has waived
his argument with respect to the adequate notice issue on appeal. See DeMarco v. Travelers
Insurance Company, 26 A.3d 585, 628 (R.I. 2011) (“[W]e do not consider issues on appeal which
were not raised and properly presented during proceedings in the court below.”).
With respect to the issue of quashing the lis pendens, we are in agreement with the hearing
justice that Mr. Toohey has not, even in his complaint filed in this action, alleged a claim to title
of the property at issue. Consequently, a lis pendens is not appropriate and was correctly quashed
by the hearing justice. See Northern Rhode Island Golf Investors, Inc. v. Steere Farm Associates,
G.P., 725 A.2d 890, 891 (R.I. 1998) (mem.) (“[W]hen a complaint does not raise a genuine dispute
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as to title, a notice of lis pendens is not appropriate[;] * * * the appropriate remedy in the case at
bar is monetary damages, not a change in title.”); Cortellesso v. Zanni, 694 A.2d 751, 752 (R.I.
1997) (mem.) (“We are of the opinion that defendants’ third-party complaint does not raise a
genuine dispute as to title and that the trial justice therefore correctly quashed the notices of lis
pendens.”).
We have considered the above-discussed issues as well as the several arguments made by
Mr. Toohey in his submissions before the Court. We do not find any to be meritorious.
Accordingly, in our opinion, the hearing justice did not err, and we affirm the October 24, 2018
order of the Superior Court.
Entered as an Order of this Court, this _____
29th day of May, 2020.
By Order,
/s/
Clerk
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STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
SUPREME COURT – CLERK’S OFFICE
ORDER COVER SHEET
Richard D. Toohey v. Dean C. DeMello as agent of
Title of Case
Joan M. DeMello Trust Agreement and Deed.
No. 2019-65-Appeal.
Case Number
(WC 18-158)
May 29, 2020
Date Order Filed
Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
Indeglia, JJ.
Washington County Superior Court
Source of Appeal
Associate Justice Stephen P. Nugent
Judicial Officer From Lower Court
For Plaintiff:
Attorney(s) on Appeal Richard Toohey, Pro Se
For Defendant:
Girard A. Galvin, Esq.
SU-CMS-02B (revised November 2016)