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STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS NEWPORT, SC Filed 7-29-10 : : : : : : : : : : : : : : SUPERIOR COURT

CHARLES BURNS, PETER D'AMARIO, as Trustee of the Peter and Maria D'Amario Trust, PATRICIA GANEK, RICHARD H. KOZIARA, ANNE LIDDELL, CHARLES AND SELENA MANGAN, JANE MCCOOL, PAUL MILLER, LESLIE PARKS, as Trustee of the Leslie Parks Trust, MICHAEL AND ELYSE SPALDING, and BERNARD AND BARBARA WARD v. MOORLAND FARM CONDOMINIUM ASSOCIATION

C.A. No. NC-2007-0610

DECISION Evidentiary Issues NUGENT, J. This matter is before the Court for decision on the Plaintiffs' objections to certain evidence offered by Defendant. Attached as an appendix hereto and incorporated as a part of this decision is a table identifying the exhibits at issue. BACKGROUND This case centers around four special assessments issued by the Defendant Moorland Farm Condominium Association (hereinafter the "Association" or "Defendant") to pay for deck replacements for Phase I condominiums. The Plaintiffs' Declaratory Judgment Claim (Count I) on whether these decks are a "common area," a "limited common area," or a part of the individual condominium units under both the Moorland Farm Condominium Declaration (hereinafter the "Declaration") and the Moorland Farm Condominium By-laws (hereinafter the "By-laws") and Defendant's corresponding counterclaim for any unpaid special assessment fees are the only remaining claims for this Court to decide.

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ANALYSIS I. Historical References to "Decks" by the Association Plaintiffs first object to Defendant's exhibits pertaining to all of the Association's board meeting minutes from 1996 through 2007 that make any reference to "decks" at Moorland Farm Condominium. (See Def.'s Ex. A, B, C, D, E, F, G, H, I, J, L, M, N, O, P, Q, R, S, T, U, W, Y, Z, BB, CC, GG, II, & NN, all marked for identification) (hereinafter, "Board Minutes"). Defendant seeks to introduce the Board Minutes to explain the meaning and intent of the Declarant, the drafter of the governing documents. Plaintiffs object on the basis of relevancy, under R.I. R. Evid. 401, in that any references to "decks" sixteen years after the recording of the Declaration, and well after the Declarant had any part in the business of Moorland Farm, are not relevant to the Declarant's intent. Plaintiffs specifically argue that the Board Minutes are irrelevant because (1) the Declaration and By-laws are clear and unambiguous to reveal the status of the decks; and (2) they have no bearing on the Declarant's intent to the extent that the Declaration and By-laws are ambiguous. The admissibility of evidence is governed by the Rhode Island Rules of Evidence. Rule 401 defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Rule 402 holds that relevant evidence is generally admissible unless otherwise prohibited by law. Likewise, Rule 402 states, "Evidence which is not relevant is not admissible." These determinations are left to the sound discretion of the trial justice. See Accetta v. Provencal, 962 A.2d 56, 60 (R.I. 2009). Defendant analogizes the Declaration and By-laws to a contract. Defendant's argument for admissibility of the Board Minutes is based on the premise that the Declaration and By-laws

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are ambiguous, which requires extrinsic evidence, such as the Board Minutes, to determine the meaning of "decks" as intended by the author of those documents. It is well-settled that a court has no need to construe contractual provisions unless those terms are ambiguous. 1800 Smith Street Associates, LP v. Gencarelli, 888 A.2d 46, 52 (R.I. 2005). "In making this determination, the court should view the agreements in their entirety and give the contractual language its `plain, ordinary and usual meaning.'" Id. Courts will deem agreements to be ambiguous when they are reasonably and clearly susceptible to more than one rational interpretation. Paul v. Paul, 986 A.2d 989, 993 (R.I. 2010). Assuming arguendo that the Declaration and By-laws are ambiguous for the purposes of this evidentiary decision only, the Board Minutes would not bear on the intent of the Declarant nor would they be able to establish a so-called "course of performance." The Declaration was recorded on or about September 13, 1980. The Declarant, Louis A. Vaillancourt, Jr., transferred the property to Roy/Hill Associates on or about December 29, 1983. The earliest of the Board Minutes that Defendant seeks to admit is dated April 27, 1996. Conduct by persons other than the Declarant, and sixteen years after the Declaration was recorded, fails to give any indication about the meaning or intent of the Declarant as a matter of law. See D.T.P., Inc. v. Red Bridge Properties, Inc., 576 A.2d 1377, 1382 (R.I. 1990) (holding that if the terms of a contract are ambiguous, the court will look to the construction placed upon such terms by the parties themselves as an aid in determining their intended meaning). Likewise, these Board Minutes have no bearing on the so-called "course of performance" because the Declarant did not participate in these meetings. As the author of the Declaration and By-law, the Declarant's course of performance is necessary for the interpretation of the documents as successors and non-parties' thoughts and ideas have no bearing on the intent of the

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Declarant. See generally 17A AmJur. 2d Contracts

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