Opinion
No. 91-143-A.
November 26, 1991.
Appeal from the Superior Court, Newport County; Pfeiffer, Judge.
Lori Caron Silviera, Joseph DeAngelis, Licht Semonoff, Providence, for plaintiff.
Richard B. Sheffield, Sheffield Harvey, Joseph J. Nicholson, Jr., Newport, for defendant.
OPINION
This case came before this court on November 6, 1991, pursuant to an order directing the defendant to appear before this court and show cause why this appeal should not be summarily denied and dismissed.
After hearing the arguments of counsel and examining the memoranda filed by the parties, we are of the opinion that no cause has been shown. It is well settled that "[m]atters not brought to the attention of the trial justice may not be raised for the first time in the Supreme Court on appeal." Rhode Island Hospital Trust National Bank v. de Beru, 553 A.2d 544, 547 (R.I. 1989); see, e.g., Cok v. Cok, 479 A.2d 1184, 1188 (R.I. 1984); Fiske v. MacGregor, Div. of Brunswick, 464 A.2d 719, 726 (R.I. 1983); Veach v. Veach, 463 A.2d 508, 509 (R.I. 1983). On appeal the defendant argued that the thirty-foot right-of-way in question was not partitionable because it is a "public" way. However, this issue was not raised before the trial justice.
Consequently the defendant's appeal is denied and dismissed. The judgment of the Superior Court is affirmed.
I am reluctant to concur, but a thorough examination of the record indicates that the city did not raise the issue of the public-trust doctrine at the trial below.
Under our case law, issues not raised at trial may not be reviewed when first raised on appeal. Rhode Island Hospital Trust National Bank v. de Beru, 553 A.2d 544, 547 (R.I. 1989). However, even if the city had raised the issue below, I find that our recent decision in Hall v. Nascimento, 594 A.2d 874 (R.I. 1991) controls and makes the city's claim moot. For these reasons I concur in affirming the decision of the trial justice.