Background
American Express filed a non-verified complaint against Anna Perretta on December 1, 2021, seeking to recover an unpaid credit card balance of $123,561.19. The complaint alleged that Perretta opened a credit card account on April 25, 2019, made purchases and cash advances, and failed to pay the required monthly payments. Perretta filed an answer on February 7, 2022, denying the material allegations in the complaint.
On August 23, 2023, American Express filed a bare-bones motion for summary judgment containing no affidavits or exhibits, merely asserting that no material disputed facts existed. Perretta filed an opposition affidavit on December 8, 2023, arguing that the plaintiff had not met its burden under Rule 56 of the Rhode Island Superior Court Rules of Civil Procedure. However, on the morning of the December 11, 2023 hearing, American Express e-mailed a twenty-four-page affidavit directly to the hearing justice’s clerk—not to opposing counsel and not as a formal filing. The hearing justice granted summary judgment that same day.
The Court’s Holding
The Rhode Island Supreme Court held that American Express violated Rule 6(c) of the Superior Court Rules of Civil Procedure, which unambiguously requires that when a motion is supported by an affidavit, “the affidavit shall be served with the motion.” By submitting its affidavit via email to the judge’s clerk on the morning of the hearing—months after filing the motion and after Perretta had already filed her opposition—American Express deprived Perretta of a meaningful opportunity to examine and respond to the evidence supporting summary judgment.
The court found this procedural violation particularly troubling because the defendant had been forced to file her opposition without knowledge that the affidavit was coming. The court stressed that summary judgment is “an extreme remedy” that “should occasion the termination of a case only where it is absolutely clear that no genuine issue of material fact exists.” The court characterized American Express’s conduct as “unprofessional and unacceptable” and noted that the hearing justice erred in allowing the hearing to proceed and in relying on the untimely affidavit in granting the motion.
The court vacated the grant of summary judgment and the entry of final judgment, remanding the case for further proceedings. The court expressly declined to reach Perretta’s due process argument, finding it was not properly raised below.
Key Takeaways
- Affidavits supporting summary judgment motions must be served with the motion itself, not submitted days, weeks, or months later—even by email to the judge on the morning of the hearing.
- The nonmoving party has a right to meaningful notice and opportunity to respond to evidence before summary judgment is decided; surprise evidence delivered on the day of hearing violates this right.
- Summary judgment is an extreme remedy requiring strict adherence to procedural rules; courts will not overlook violations of timing requirements because of a plaintiff’s failure to plan.
- Rhode Island courts will reverse summary judgments entered on improperly submitted affidavits and admonish counsel for procedurally deficient practice.
Why It Matters
This decision reinforces that procedural rules are not mere formalities in Rhode Island summary judgment practice. The court made clear that counsel cannot circumvent filing deadlines by emailing evidence to judges on the eve of or morning of hearings. For plaintiffs’ counsel pursuing summary judgment, the ruling confirms that all supporting affidavits must be timely served with the motion itself. This protects defendants’ fundamental right to adequate notice and an opportunity to respond before a case is terminated on the papers.
The court’s emphatic language—calling the conduct “unprofessional and unacceptable” and a “troubling procedural error”—signals that Rhode Island courts take these timing requirements seriously and will reverse judgments when violated, regardless of the strength of the underlying merits. For practitioners in Rhode Island, the case is a cautionary tale: plan ahead, serve affidavits when the motion is filed, and do not expect courts to overlook late submissions as harmless or excusable.