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Supreme Court
No. 2004-237-Appeal.
(WC 03-294)
Euphemia Barr Gardner et al.                                                                    :
v.                                                                                              :
Wayne R. Baird.                                                                                 :
Present:  Williams, C.J., Goldberg, Flaherty, Suttell, and Robinson, JJ.
O P I N I O N
PER CURIAM.   This case came before the Supreme Court on March 1, 2005,
pursuant to an order directing the parties to appear and show cause why the issues raised
in this appeal should not summarily be decided.   After hearing arguments of counsel and
reviewing the memoranda submitted by the parties, we are satisfied that cause has not
been shown.  Accordingly, we shall decide the appeal at this time.
This dispute arises from the plaintiffs’ use of an unimproved parcel of land
located on Charlestown Beach Road in the Town of Charlestown and identified as lot No.
37 on assessor’s plat No. 9 (lot No. 37).   The plaintiffs, Euphemia Barr Gardner, Francis
W. Gardner, III, Euphemia E. G. Gardos, Pamela F. Boynton, John A. Stey, Vytis L.
Virbickas, Algute M. Virbickas, and Ralph J. Perrotta (collectively plaintiffs), appeal
from  a  grant  of  summary  judgment  in  favor  of  the  defendant,  Wayne  R.  Baird
(defendant).   The hearing justice found that the use of lot No. 37, as alleged by the
plaintiffs, was insufficient to establish title by adverse possession.   The plaintiffs argue
that the hearing justice’s finding wrongly disposed of the case because their amended
complaint alleged that they possessed an “ownership interest” in lot No. 37, which they
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contend is a prescriptive easement.    For the reasons set forth herein, we vacate the
judgment of the Superior Court.
Facts and Travel
Lot No. 37 is a strip of beachfront property bordered by Charlestown Beach Road
to the north and the Atlantic Ocean to the south.   For many years, plaintiffs, owners of
property located north of Charlestown Beach Road, allegedly used a footpath extending
along the east side of lot No.  37  (the footpath) to gain unobstructed access to the
seashore.   The landscape began to change in February 2002 when defendant, owner of an
adjacent property identified as lot No. 38 on assessor’s plat No. 9 (lot No. 38), acquired
lot No.  37.1    The defendant obtained a permit and constructed a fence blocking the
footpath.   Not to be deterred, plaintiffs found alternate pathways and continued to enter
lot No. 37 to access the beach.
On February 4, 2003, plaintiffs filed a complaint in Superior Court, alleging that
they had established a prescriptive easement across the parcel and seeking injunctive and
declaratory relief.   The defendant filed an answer, asserting, inter alia, that plaintiffs had
failed to state a claim upon which relief may be granted.   He also asserted counterclaims
for injunctive and declaratory relief, as well as damages.   After defendant moved for
summary judgment based on G.L.  1956  § 34-7-4, plaintiffs sought and were granted
leave to amend their complaint to allege that they had established “ownership interests”
in lot No. 37, in its entirety.2
1   The defendant was a co-owner of lot No. 38 at the time he purchased lot No. 37, and in
April 2002, he became the sole owner of lot No. 38.
2  In their first complaint, plaintiffs alleged that they                                         “obtained access to the shore
primarily through a path located on the far side of [lot No. 37].”   In the prayer for relief,
plaintiffs requested that the court “enjoin defendant from continuing to block access to
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The defendant moved for summary judgment on plaintiffs’ amended complaint,
and plaintiffs submitted affidavits attesting to their use of lot No. 37 as if it were their
own for more than ten years.3   At a hearing on March 15, 2004, defendant argued that
plaintiffs’ use of lot No. 37 did not rise to the level of adverse possession because it was
not adverse to the interests of all others.   The plaintiffs admitted that they did nothing to
oust the true owner from lot No. 37 and that they did not know whether any other persons
used the beachfront property.   They argued that exclusivity is not an essential element of
their claim and that they had been asserting their claim to the property by “[sitting] on the
beach above the high water mark in contravention of the rights of the owner.”
The hearing justice granted defendant’s motion.   Accepting everything plaintiffs
alleged as true, the trial justice found there were no issues of fact to be resolved by a fact-
finder, and defendant was entitled to judgment as a matter of law.   The plaintiffs filed a
timely notice of appeal, but by error of counsel, only one filing fee was paid.4   The
plaintiffs filed a motion to amend the notice of appeal, and we reserved the issue for
consideration at oral argument.
said path and declare that plaintiffs have established that each of them has a prescriptive
easement allowing each of them * * * to use said path to obtain access to the shore.”
However,  G.L.  1956  § 34-7-4  prohibits  the  establishment  of                                 “a  right  of  footway.”
Section 34-7-4 provides:                                                                          “Right of footway denied.  - No right of footway, except
claimed  in  connection  with  a  right  to  pass  with  carriages,  shall  be  acquired  by
prescription or adverse use for any length of time.”
3 When the suit was filed, there were two additional plaintiffs, John and Lola Babie.   At
some point prior to defendant’s filing of the motion for summary judgment on the
amended complaint, the Babies, by stipulation of the parties, were dismissed from the
action, with prejudice.
4 Although Article I, Rule  3(b) of the Supreme Court Rules of Appellate Procedure
allows parties to file joint notices of appeal, Article I, Rule 5(a) of the Supreme Court
Rules of Appellate Procedure requires that each party pay a $150 filing fee.   Mosby v.
Devine, 851 A.2d 1031, 1036-37 (R.I. 2004) (holding appeal of one of the two plaintiffs
invalid because only one filing fee was paid and his name did not appear on the receipt).
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Standard of Review
We note at the outset that summary judgment is an extreme remedy that warrants
cautious application.   Canavan   v. Lovett, Schefrin, and Harnett, 862 A.2d 778, 783 (R.I.
2004).    We review a Superior Court justice’s grant of summary judgment de novo.
United Lending Corp. v. City of Providence, 827 A.2d 626, 631 (R.I. 2003).   “Only when
a review of the admissible evidence viewed in the light most favorable to the nonmoving
party reveals no genuine issues of material fact, and the moving party is entitled to
judgment as a matter of law, will this Court uphold the trial justice’s grant of summary
judgment.”   Id.  (quoting Carlson v. Town of Smithfield,  723 A.2d  1129,  1131  (R.I.
1999)).                                                                                        “[A] party who opposes a motion for summary judgment carries the burden of
proving by competent evidence the existence of a disputed material issue of fact and
cannot rest on allegations or denials in the pleadings or on conclusions or legal opinions.”
Id. (quoting Accent Store Design, Inc. v. Marathon House, Inc., 674 A.2d 1223, 1225
(R.I. 1996)).
Failure to Pay Filing Fees
Francis W. Gardner, III, Euphemia E. G. Gardos, Pamela F. Boynton, John A.
Stey, Vytis L. Virbickas, Algute M. Virbickas, and Ralph J. Perrotta argue that they
should be permitted to go forward with this appeal because their failure to file timely
notices of appeal was the result of excusable neglect.   In Mosby v. Devine, 851 A.2d
1031, 1036-37 & n.3 (R.I. 2004), we held that plaintiff Steven Golotto’s appeal was
invalid because of his chronic failure to make timely payment of the appellate filing fee.
Although Golotto attempted to tender the fee by letter to the clerk of the Supreme Court
after the second oral argument of that appeal, we deemed this effort to be untimely and
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wanting.  Id. at 1036n.3.  Golotto’s failure to pay the fee had been brought to his attention
during two rounds of oral argument before this Court.   Id.   At no point did Golotto
attempt to show excusable neglect or otherwise offer any explanation.   Id.   In contrast,
plaintiffs before this Court realized the error before the prebriefing conference and moved
to amend the notice of appeal and offered payment of the additional filing fees.   After a
single justice of this Court ordered the issue left for consideration at oral argument,
plaintiffs filed a supplemental memorandum addressing the error.  The plaintiffs’ counsel
candidly admitted that he “has no excuse for this lapse but his own lack of awareness” of
the requirement of multiple fees.
We hold that plaintiffs are properly before us.   Unlike the situation in Mosby,
these plaintiffs immediately sought to correct their error upon becoming aware of it.   We
are satisfied that counsel’s failure to tender individual filing fees, although neglectful,
was excusable as to his clients, who stood ready to pay the additional fees upon discovery
of counsel’s error.
Plaintiffs’ Substantive Claim
Before this Court, plaintiffs argue that, by producing uncontested evidence of
their use of lot No. 37 for ten years or more, they alleged facts sufficient to survive
defendant’s motion for summary judgment.   The plaintiffs assert that there are issues of
fact that may prove they are entitled to a possessory interest that does not require ouster
of either the owner or third parties from the property.  We agree.
Rule  8(a) of the Superior Court Rules of Civil Procedure requires that every
pleading setting forth a claim for relief contain “(1) a short and plain statement of the
claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the
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relief the pleader seeks.”   A pleading need not include “the ultimate facts that must be
proven in order to succeed on the complaint * * * [or] to set out the precise legal theory
upon which his or her claim is based.”   Haley v. Town of Lincoln, 611 A.2d 845, 848
(R.I.                                                                                         1992).    The pleading simply must provide the opposing party with  “fair and
adequate notice of the type of claim being asserted.”  Id.
We  are  satisfied  that  the  amended  complaint,  although  not  artfully  drafted,
provided defendant with fair and adequate notice that plaintiffs claim they possess a
prescriptive easement in lot No. 37.   The amended complaint alleges that “plaintiffs have
established ownership of  [lot No.  37] under the doctrine of adverse possession” and
requests  that  the  court  declare  that  they  have                                         “ownership  interests”  in  the  lot.
Section 34-7-1, entitled “Conclusive title by peaceful possession under claim of title,”
governs both claims of title by adverse possession and claims of prescriptive easements.
See  Frenchtown  Five  L.L.C.  v.  Vanikiotis,                                                863  A.2d                                                                       1279,   1283n.9   (R.I.   2004)
(characterizing § 34-7-1 as the “adverse possession statute”); Burke-Tarr Co. v. Ferland
Corp., 724 A.2d 1014, 1020 (R.I. 1999) (“[O]ne who claims an easement by prescription
has the burden of establishing actual, open, notorious, hostile, and continuous use under a
claim of right for ten years as required by * * * § 34-7-1.”) (quoting Palisades Sales
Corp. v. Walsh, 459 A.2d 933, 936 (R.I. 1983)).   By alleging that plaintiffs obtained
some ownership interest in lot No. 37 by adverse possession, the amended complaint
gives adequate notice of the claim of a prescriptive easement.
The defendant argues that it was proper for the motion justice to grant summary
judgment in his favor because plaintiffs asserted an adverse possession claim and they
cannot  prove  exclusivity.    As  plaintiffs  argued  at  the  summary  judgment  hearing,
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although exclusivity is an essential element in a claim of title by adverse possession, one
need not prove it to succeed on a claim for a prescriptive easement.   Compare Stone v.
Green Hill Civic Association, Inc., 786 A.2d 387, 389 (R.I. 2001) (“One who claims an
easement by prescription bears the burden of establishing actual, open, notorious, hostile,
and continuous use under a claim of right for at least ten years.”), with DeCosta v.
DeCosta, 819 A.2d 1261, 1264 (R.I. 2003) (“To establish a claim for adverse possession,
a claimant must demonstrate by strict proof * * * that the possession was ‘actual, open,
notorious, hostile, under claim of right, continuous, and exclusive’ for the statutory
period of ten years.”) (quoting Carnevale v. Dupee, 783 A.2d 404, 409 (R.I. 2001)).
(Emphasis added.)    As discussed above, plaintiffs sufficiently pleaded a claim for a
prescriptive easement and should have the chance to prove the necessary elements of a
prescriptive easement at trial.   See Stone, 786 A.2d at 391 (“[F]actual determinations are
generally necessary to determine whether claimants have established the elements of a
prescriptive easement.”).
Conclusion
For the reasons set forth herein, we vacate the judgment of the Superior Court and
remand the case for proceedings consistent with this opinion.   The plaintiffs are directed
to forward the additional filing fees to the clerk of the Supreme Court.
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Supreme Court
No. 2004-237-Appeal.
(WC 03-294)
Euphemia Barr Gardner et al.                                          :
v.                                                                    :
Wayne R. Baird.                                                       :
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 222-
3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.




COVER SHEET
TITLE OF CASE:                              Euphemia Barr Gardner et al. v. Wayne R. Baird
DOCKET NO:  2004-237-Appeal
COURT:                                      Supreme
DATE OPINION FILED:                         May 4, 2005
Appeal from
SOURCE OF APPEAL: Superior                  County:  Washington
JUDGE FROM OTHER COURT:                     Judge Jeffrey Lanphear
JUSTICES:                                   Williams, C.J., Goldberg, Flaherty, Suttell and Robinson, JJ.
Not Participating -
Concurring -
Dissent -
WRITTEN BY: PER CURIAM
ATTORNEYS:
For Plaintiff    Anthony F. DeMarco, Esq.
ATTORNEYS:
For Defendant    Justin T. Shay, Esq.

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