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Supreme Court
No. 2004-380-Appeal.
(PC 01-6000)
James O. Opella                                                       :
v.                                                                    :
Ilan I. Opella.                                                       :
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.




Supreme Court
No. 2004-380-Appeal.
(PC 01-6000)
James O. Opella                                                                                        :
v.                                                                                                     :
Ilan I. Opella.                                                                                        :
Present: Williams, C.J., Goldberg, Flaherty, Suttell, and Robinson, JJ.
O P I N I O N
Justice Suttell, for the Court.   The plaintiff, James O. Opella, appeals from a judgment
in favor of his father, the defendant, Ilan I. Opella, in this dispute over money.1   This case came
before the Supreme Court for                                                                           oral argument pursuant to an order directing the parties to show
cause why the issues raised in this appeal should not be decided summarily.   After considering
the written and oral submissions of the parties and examining the record, we are of the opinion
that the issues raised in this appeal may be resolved without further briefing or argument.   For
the reasons set forth herein, we affirm the judgment of the Superior Court.
Facts and Procedural History
This case has its genesis in various sums of money that defendant and his late wife,
Margie Inez Opella, advanced to plaintiff.   According to defendant, between 1985 and 1994, he
paid approximately $68,000 to plaintiff or to other persons on plaintiff’s behalf.   In a telephonic
deposition, portions of which were read into the record, defendant testified that he, his wife, and
plaintiff all considered the payments to be loans and that plaintiff had said that he would pay the
money back.  In addition, defendant and his wife kept receipts and summary lists of all payments
1 Both parties are residents of Texas.   The defendant does not contest the in rem jurisdiction of
the Superior Court over this action. See Shaffer v. Heitner, 433 U.S. 186, 207-08 (1977).
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to plaintiff that they considered to be loans.  James Opella testified, however, that he never made
any promises to pay back the money; rather, he considered the payments to be gifts.
In June 1985, plaintiff was incarcerated after a conviction for possession of a controlled
substance, cocaine, with intent to deliver.   He was released on bail from December 26, 1985,
until January 1990, and was then again incarcerated, this time until April 1991.   On December
30, 1985, while out on bail, plaintiff signed a promissory note for $16,000 payable to his father.
The plaintiff explained that he signed the note at the insistence of his mother, just in case
anything should happen to him, so that his parents could recover the money that they had paid to
help him with his house.
On March 28, 1990, plaintiff signed a second promissory note for $100,000 payable to
his parents.   The plaintiff testified that this second note was his idea, to protect two properties
that he owned.2   This second note was secured by a mortgage, executed on the same date,
encumbering two properties plaintiff owned, 408 Cranston Street and 81 Sycamore Street in
Providence.  Both the note and the mortgage specified a rate of interest of 12 percent per annum.
The plaintiff testified that he considered the documents to represent a “blanket lien” on the
properties, rather than a “loan.”   He said that he trusted his parents and viewed the note as
“nothing more than paperwork” that would protect them and the properties if he died.    In
contrast, defendant said that he understood the $100,000 promissory note to cover all payments
that he and his wife had provided to plaintiff since  1985, plus any future advances.    It is
undisputed that plaintiff was incarcerated at the Adult Correctional Institutions when he executed
this second promissory note and mortgage on March 28, 1990.
2 The plaintiff testified at trial that the idea to create the second note was his.   In his written
submission to this Court, however, he claims that he signed the note  “reluctantly” and at
defendant’s “sole insistence.”
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On January 3, 1995, well after plaintiff’s release from prison in 1991, defendant and his
wife signed a partial release of the mortgage, thereby discharging the encumbrance on the
Cranston Street property so that plaintiff could sell it.   The release specifically stated that it
would have no effect on his parents’ right to collect on the Sycamore Street property.3  A portion
of the proceeds from the sale of the Cranston Street property was paid to plaintiff’s parents.  The
plaintiff testified that he consented to this payment, which he characterized as “gratitude for all
the help [he had] been given.”
The plaintiff’s mother died in 1998, bequeathing by will her entire estate, including her
interest in the  $100,000 note and mortgage, to defendant.   In  2000, plaintiff entered into a
purchase and sales agreement to sell the Sycamore Street property.    The plaintiff retained
Attorney George Landes to represent him in the sale.   After discovering the existence of the
mortgage lien on the property, Mr. Landes contacted Stanley Cramb, an attorney in Texas who
was representing defendant, to discuss the matter.
On September 14, 2000, Mr. Landes wrote a letter to Mr. Cramb, notifying him that
plaintiff was confident that the amount advanced to him by his parents was far less than
$100,000, the amount appearing on the note and mortgage documents.   The letter further stated
that the mortgage deed had been executed by plaintiff while he was serving a prison sentence,
thus “in effect nullifying such conveyances” under Rhode Island statutory law.   In a September
3 The partial release was introduced for identification, but was not made a full exhibit at trial.
The plaintiff read the third paragraph of the partial release into the record as follows:
“But this release shall not in any way affect or impair the right of
said Margie Inez Opella and Ilan I. Opella to hold under the said
mortgage deed as security for the sum remaining due thereof or to
sell under the power of sale in said mortgage deed contained all the
remainder of the premises therein conveyed and not hereby or
heretofore  releases  or  otherwise  enforce  the  provision  of  said
mortgage.”
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28,                                                                                                 2000  letter,  Mr.  Cramb  responded  that  despite  his  belief  that  the  Rhode  Island  law
prohibiting prison inmates from conveying property did not apply, defendant had “decided to
once again try to help his son.”  The letter went on to inform plaintiff’s attorney that:
“My client is willing to forgive the mortgage loan indebtedness
and release his lien against your client’s property in Rhode Island
if your client will sign a general release releasing my client from
any  possible  or  potential  liability  as  a  result  of  your  client’s
execution of the said mortgage loan documentation against his
property.   Please let me know if this proposal is acceptable to your
client.   If it is, please also send me the necessary documentation to
release  and  discharge  the  mortgage  lien  against  your  client’s
property and to discharge the loan indebtedness.   In turn, I will
send to you a General Release of Liability to be signed by your
client.”
On October 11, 2000, Mr. Landes wrote back to Mr. Cramb, stating, “[m]y client is in agreement
with your client’s proposal of September  28,  2000,” and indicating that he was mailing a
discharge of the mortgage for defendant to sign.
The record reflects that further correspondence was exchanged between the attorneys,
and that plaintiff signed a “Mutual Release Agreement” on November 21, 2000.   Then, in a
December 21, 2000 letter, defendant, through a newly secured Rhode Island attorney, Alfred
Thibodeau, informed Mr. Landes that he was unwilling to execute the mutual release and was
seeking recovery of the payments that he and his wife had made to plaintiff from 1985 to 1994.
On November 13, 2001, plaintiff filed a complaint in Superior Court, alleging that the
note “lacked the consideration recited and the mortgage was improperly recorded” in the land
evidence records, and that defendant’s actions or inactions in failing or refusing to execute the
release and mortgage discharge were wrongful and continued to cloud the title to the Sycamore
Street property.   He also sought specific performance of the alleged agreement to settle.   On
December 14, 2001, defendant answered and filed a counterclaim alleging that plaintiff was
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indebted to him for the money paid to plaintiff or others on his behalf.   The defendant averred
that the  $100,000 promissory note was valid for the repayment of sums advanced or to be
advanced in the future, and that the mortgage secured by the Sycamore Street property was
recorded properly on April 2, 1990.  Each party also sought costs and attorney’s fees.
After a nonjury trial, the trial justice found that the payments by defendant and his wife to
plaintiff throughout the years                                                                        “were loans and not gifts.”    In addition, he found that the
promissory note, as well as the mortgage that plaintiff executed while in prison, were valid
instruments.   Finally, the trial justice found that the parties did not form a binding contract to
settle because there “was never a meeting of the minds between the two.”
Judgment was entered on November 10, 2004, which, inter alia, ordered plaintiff to repay
defendant at a rate of 12 percent per annum “that amount ($32,000.00 or thereabouts) that was
loaned to James Opella by Ilan and Margie Inez Opella prior to the execution of the promissory
note, or March 28, 1990,” and “that amount that was loaned * * * after the execution of the
promissory note * * * without any interest accruing.”   The plaintiff also was held responsible
“for all costs and attorney’s fees incurred by Ilan Opella regarding this matter.”
On appeal, plaintiff challenges the following rulings of the trial justice: (1) that plaintiff
must repay all the funds that defendant and his late wife paid to him because they were loans,
and not gifts; (2) that the $100,000 promissory note was valid; (3) that the mortgage securing
said note was a valid security interest in the Sycamore Street property; and (4) that the parties
had not entered into a valid contract to execute a mutual release for the discharge of the
mortgage indebtedness.
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Standard of Review
“In reviewing a trial justice’s decision in a nonjury civil case, we will not disturb his or
her  factual  findings                                                                                ‘unless  such  findings  are  clearly  erroneous  or  unless  the  trial  justice
misconceived or overlooked material evidence or unless the decision fails to do substantial
justice between the parties.’” Bogosian v. Bederman, 823 A.2d 1117, 1120 (R.I. 2003) (quoting
Wilkinson v. State Crime Laboratory Commission, 788 A.2d 1129, 1144 (R.I. 2002)).   We also
“will not disturb determinations of credibility in a non jury trial unless the findings are clearly
wrong  or  the                                                                                        [trial  justice]  misconceived  or  overlooked  material  evidence.”  Id.            (quoting
Andreozzi v. Andreozzi, 813 A.2d 78, 82 (R.I. 2003)).   It is not this Court’s task to weigh
credibility;  rather,                                                                                 “[t]he  task  of  determining the  credibility  of  witnesses  is  peculiarly  the
function of the trial justice when sitting without a jury.” Id. (quoting Walton v. Baird, 433 A.2d
963, 964 (R.I. 1981)). “We must therefore consider all the facts, circumstances, and pleadings to
determine  whether  the  Superior  Court  justice’s  findings  were  clearly  wrong  and  thereby
constitute reversible error.” Forte Brothers, Inc. v. Ronald M. Ash & Associates, Inc., 612 A.2d
717, 721 (R.I. 1992).
Discussion
The plaintiff’s first argument on appeal is that the trial justice was clearly wrong in
finding that the sums of money forwarded to plaintiff from his parents were loans, and not gifts.
The evidence presented at trial conflicted concerning whether the payments provided to plaintiff
were intended as loans or gifts.   The plaintiff testified that the payments of money were gifts
because his parents never indicated that any of the payments were loans and he never made any
promises to repay them.   According to defendant, however, all three individuals considered the
advances to be loans.
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The trial justice said that he was satisfied that the sums defendant and his wife transferred
to plaintiff “were loans and not gifts.”   Focusing on the two promissory notes plaintiff executed
in favor of his parents as evidence that the payments were intended to be loans, he found the
testimony  of  plaintiff                                                                             “to  be  lacking  in  credibility  or  plausibility.”    The  trial  justice  also
considered the fact that defendant had kept meticulous records of the payments to plaintiff as
further proof that they were not gifts.
In short, the trial justice found defendant’s evidence to be more persuasive than plaintiff’s
evidence.   This Court has upheld trial justices’ determinations of fact in similar circumstances
when the evidence presented at trial was contradictory. See, e.g., Kobelecki v. Kobelecki, 706
A.2d 1322, 1323-24 (R.I. 1997) (mem.); Holding v. Holding, 82 R.I. 474, 475-76, 111 A.2d 476,
476-77 (1955).   Affording these credibility determinations and factual conclusions the deference
they are due, we are satisfied that the trial justice was not clearly wrong in finding that the
payments that defendant and his wife provided to plaintiff were loans.
Next, plaintiff challenges the trial justice’s ruling that the March 28, 1990 promissory
note executed by plaintiff in favor of defendant and his wife was valid.   He emphasizes that the
evidence at trial indicated that the note had a face amount of  $100,000, whereas defendant
testified  that  only  about                                                                         $68,000  actually  was  “loaned”  to  plaintiff.4    He  argues  that  the
difference of $32,000 between the note’s face amount and the actual amount advanced “could
only have constituted interest,” meaning that the note contained a 32-percent rate of interest,
which is prohibited by G.L. 1956 § 6-26-2.   The plaintiff alleges that the note was usurious, and
therefore null and void.
4
It should be noted that, in his deposition testimony admitted at trial, defendant said that the
entire amount he actually had loaned to his son was approximately $68,000.   The defendant later
said, however, that the amount actually loaned to plaintiff up to the moment in time when the
parties executed the $100,000 promissory note was approximately $32,000.
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Section 6-26-2(a) prohibits loan interest rates that exceed 21 percent per annum.   Any
contract in which the yearly interest rate exceeds this maximum permissible rate is expressly
declared void by § 6-26-4(a).  The promissory note at issue in this case, however, clearly stated a
rate of interest of  12 percent per annum on its face.    The trial justice determined that the
12- percent interest attached only to the loans received by plaintiff before the note was executed,
“$32,000.00 or thereabouts,” less the partial release amount connected with the sale of the
Cranston Street property.   He also ruled that recovery of the funds paid to plaintiff after the note
was executed would be without interest.  The trial justice’s decision in this regard was not clearly
erroneous; nor did he overlook or misconceive material evidence.
The plaintiff also contends that the trial justice erred when he found that the mortgage
securing the promissory note was valid.   He argues that § 13-6-3 rendered the transaction void
because plaintiff was incarcerated when the mortgage was executed and thus could not effectuate
a conveyance of property absent Superior Court permission.  Section 13-6-3 provides that:
“No person who shall be sentenced to imprisonment in the adult
correctional institutions shall have any power, during his or her
imprisonment, to make a will, or any conveyance of his or her
property, or of any part of that property, except by permission of
the superior court granted on petition for that power, and on the
notice and terms, if any, that the court shall prescribe.”
Applying equitable principles, the trial justice noted that it was plaintiff’s idea to execute
a mortgage and that after his release from prison he relied on it “as if it were a valid document”
when he secured a partial release from his parents so that he could sell the Cranston Street
property.   It appears to us, however, that the issue of the mortgage’s validity has become moot
since the filing of this appeal.   In his supplemental memorandum, defendant represents that the
Sycamore Street property has been sold and that he “was paid pursuant to the Mortgage and the
Superior Court’s decision.”  Accordingly, he has signed and forwarded a discharge to the closing
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attorney.   In light of the trial justice’s ruling that the note itself was valid and the monies
advanced were indeed loans, the validity of the mortgage vel non no longer has any relevance to
this controversy.5
Finally, plaintiff contends that the trial justice erred in finding that there was no contract
between plaintiff and defendant to execute the mutual release and mortgage discharge.   For
parties to form an enforceable contract, there must be an offer and an acceptance.   Each party
must have and manifest an objective intent to be bound by the agreement. Weaver v. American
Power Conversion Corp., 863 A.2d 193, 198 (R.I. 2004).   For either an express or implied
contract, “a litigant must prove mutual assent or a ‘meeting of the minds between the parties.’”
Mills v. Rhode Island Hospital, 828 A.2d 526, 528 (R.I. 2003) (mem.) (quoting J. Koury Steel
Erectors, Inc. of Massachusetts v. San-Vel Concrete Corp., 120 R.I. 360, 365, 387 A.2d 694, 697
(1978)).
In the present case, the trial justice found that although there were negotiations between
the parties’ attorneys, there never was a meeting of the minds between the parties themselves.
Crediting the testimony of Ilan Opella, the trial justice found the defendant to be an elderly
gentleman who was undergoing a great deal of emotional turmoil and was confused.   He further
found that the defendant never manifested his assent to the settlement agreement, and thus there
never was a meeting of the minds.   Again, according the great deference to which the trial
justice’s credibility determinations and factual findings are entitled, we cannot say that he was
clearly wrong.
5 Even if this issue were not moot, we are satisfied that the trial justice did not err by applying
equitable principles to preclude plaintiff from denying the validity of a mortgage that plaintiff
admitted was his idea to execute.   See East Greenwich Institution for Savings v. Kenyon, 20 R.I.
110, 112-14, 37 A. 632, 633-34 (1897).
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Conclusion
For the reasons stated herein, we affirm the judgment of the Superior Court, to which
court the record in this case shall be remanded.
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COVER SHEET
TITLE OF CASE:James O. Opella  v. Ilan I. Opella
DOCKET SHEET NO.:2004-380-A
COURT:Supreme
DATE OPINION FILED:May 5, 2006
Appeal from
SOURCE OF APPEAL: SuperiorCounty:  Providence
JUDGE FROM OTHER COURT:    Judge Stephen J. Fortunato
JUSTICES:Williams, CJ., Goldberg, Flaherty, Suttell, and Robinson, JJ.
WRITTEN BY:Justice Paul A. Suttell, for the Court
ATTORNEYS:
For Plaintiff:                                                           Dean G. Robinson, Esq.
ATTORNEYS:
For Defendant:    Bruce R. Thibodeau, Esq.
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