Supreme Court
No. 2025-132-Appeal.
(KC 24-1004)
Vanessa Carlton et al. :
v. :
Artak Avagyan et al. :
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 (401) 222-3258 or
Email [email protected], of any typographical
or other formal errors in order that corrections may be
made before the opinion is published.
Supreme Court
No. 2025-132-Appeal.
(KC 24-1004)
Vanessa Carlton et al. :
v. :
Artak Avagyan et al. :
Present: Suttell, C.J., Robinson, Lynch Prata, Long, and Flaherty (ret.), JJ.
OPINION
Justice Robinson, for the Court. The defendants, Artak Avagyan and Lee
Beausoleil, appeal from an order of the Superior Court granting a preliminary
injunction in favor of the plaintiffs, Vanessa Carlton and John McCauley. Before
this Court, the defendants contend that the hearing justice erred in granting that
injunction.
This case came before the Supreme Court, sitting at North Smithfield High
School, for oral argument on April 2, 2026, pursuant to an order directing the parties
to appear and show cause why the issues raised in this appeal should not be
summarily decided. After considering the parties’ written and oral submissions and
after carefully reviewing the record, we conclude that cause has not been shown and
that this case may be decided without further briefing or argument.
-1-For the reasons set forth in this opinion, we affirm the order of the Superior
Court.
I
Facts and Travel
This case stems from a dispute between the owners of neighboring properties.
The plaintiffs own and reside in a home located at 141 Post Road, Warwick, Rhode
Island, which is in the Pawtuxet Village Historic District. The plaintiffs purchased
their property in March of 2021 and have resided there since the Fall of that year.
The defendants are the owners of an adjacent property located at 175 Post Road in
Warwick. Significantly, the 141 Post Road property is in a “residential” zone,
whereas the 175 Post Road property is in a “light industrial” zone.
On October 17, 2024, plaintiffs filed a verified complaint in the Superior
Court, seeking monetary damages and injunctive relief because of an alleged private
nuisance arising from what plaintiffs considered to be “unreasonable” noises
emanating from defendants’ property. On the same day, plaintiffs filed an emergency
ex parte motion for a temporary restraining order and a preliminary injunction.1 On
November 4, 7, and 14, 2024, a hearing was held in the Superior Court on the motion
1
On October 21, 2024, the hearing justice granted plaintiffs’ ex parte motion for a temporary restraining order. That order is not at issue in the instant case.
-2-for a preliminary injunction. As we discuss in some detail infra, the hearing justice
granted a preliminary injunction at the conclusion of the hearing.
We summarize below the pertinent testimony of the witnesses at the
preliminary injunction hearing whose testimony we deem relevant to the issues
before us on appeal.
A
The Testimony of Vanessa Carlton
Vanessa Carlton, one of the plaintiffs, was the first witness to testify at the
hearing. Ms. Carlton stated that she and her husband are “both musicians,” and that
she believed that they had found a “forever spot” in their Pawtuxet Village home.
She testified that, when she and her family moved into the 141 Post Road property,
they encountered no disruptive noises other than the noise emanating from moderate
vehicle traffic on Post Road and intermittent airplane noise. Ms. Carlton stated that
the noise issue which precipitated this civil action began in July of 2024, when she
began hearing persistent construction-related noises coming from defendants’
property.
It was Ms. Carlton’s testimony that she was aware that “a crane company”2
had moved into the 175 Post Road property in January of 2024. Ms. Carlton testified
2
The record reflects that North American Crane & Rigging, LLC is the “crane company” that is a tenant at the 175 Post Road property.
-3-that, after conducting some internet research, she concluded that JOGO Corporation3
was the source of the instant noise. She stated that it was “heavy machinery” and
“an open air fabrication facility” that caused noise which she described as consisting
of the “[b]eeping of multiple vehicles, hammering, like a generator, sort of a
combination of those things.” It was Ms. Carlton’s testimony that the result was
“like the construction facility took over our property.” She further stated:
“I could not be on the property when the work was going
on because I tried for about a week and then I just couldn’t
be outside or be inside with the windows closed, so I was
frantically trying to figure out what happened and who,
what the project was, and who was creating the
noise * * *.”
Ms. Carlton testified that, in attempting to deal with the noise issue on her
own, she took steps like planting arborvitaes and having a privacy fence installed
between her property line and “the fabrication field”—all to no avail.
Ms. Carlton stated that “[t]he JOGO folks wrapped up their project” and the
fabrication noise ended in “the beginning of October [2024].” However, she went
on to state that subsequently “a totally different type of crane” moved in and created
“a totally different noise * * *.” She recalled that this new and “totally different”
noise began on October 17, 2024. She stated that, “around that time,” she and her
3
The record indicates that JOGO Corporation is a multi-family housing construction company. JOGO was a customer of North American Crane & Rigging, LLC, and it maintained a presence on the 175 Post Road site from July until October of 2024. See Part I.I., infra.
-4-husband (John McCauley) filed the instant complaint, and a temporary restraining
order was granted with respect to the noise at issue. She further testified, however,
that, in spite of that judicial relief, she continued to hear noise emanating from the
175 Post Road property; she added that the occupants of the property worked from
“nine to five every weekday” and on weekends.
It was also Ms. Carlton’s testimony that the sound was “absolutely
maddening” and that she and her husband contacted the Warwick Police Department
on multiple occasions because she “felt that [the sound] was violating a noise
ordinance.” Ms. Carlton stated that the police came to her property “maybe five
times;” she added that “the police did say that they were going to issue [a violation].”
Ms. Carlton recalled that she and her husband made recordings that captured
the noise from both the inside of their house and from outside in their backyard in
July, August, and September of 2024. At the hearing on the motion for a preliminary
injunction, plaintiffs presented the court with a collection of recordings, which were
admitted as full exhibits. Those recordings revealed the presence of noises
“presumably coming from JOGO, the prior tenant,” including hammering, beeping
of vehicles, noises from the cranes, sawing, and a generator sound.
It was Ms. Carlton’s testimony that the noise was very “anxiety inducing.”
She stated that, when the occupants of 175 Post Road were working, her home was
“no longer a residential property.” She said that, when defendants were using their
-5-property as they had used it prior to July of 2024, she was able to make and arrange
music and enjoy her property. She added that her family’s “whole life is in that
property;” she stated that it had become “extremely challenging to create music there
now.”
In addition, Ms. Carlton testified that she had, on multiple occasions, seen Mr.
Avagyan “walking [her] property line and looking inside of [her] backyard.” Ms.
Carlton further testified relative to an incident involving a landscaper on defendants’
property. Ms. Carlton stated:
“[T]hey started using landscapers for the first time this
summer, and one of the landscapers, he was in the back,
and my daughter and I were in the back playing, he was
holding a chain saw that he was having trouble getting it
to work, so he was just standing there and put it down and
he just took out his phone and appeared to be just pointing
it at [my daughter].”
On cross-examination, Ms. Carlton testified that on one occasion she had seen Mr.
Avagyan “holding a phone up” as though he was filming her house.
B
The Testimony of John McCauley
John McCauley was the second witness to testify. He testified that he makes
his living “mostly traveling, touring as a musician;” he added that, as a result, his
“time at home with [his] family is very sacred * * *.” He stated that he likes to enjoy
his yard and that he also enjoys “having a recording studio on the premises, * * *
-6-having a creative space to work and practice.” He testified that he writes, rehearses,
and records music in the recording studio in his home.
Mr. McCauley further testified that, even though he had been “touring most
of the time while this activity had been going on,” the noise issue upon returning
home made his “time at home really unenjoyable and completely depressing.” He
also stated that “[t]here was never a noise problem, nothing out of the ordinary before
JOGO started working there.” When asked to describe the noise issue that began in
July of 2024, Mr. McCauley testified as follows:
“Prior to July, they had a couple trucks parked there that
were no bother to me. Once all the construction equipment
came in and then we had eight or more hours a day of
hammering, sawing, and beeping, that became pretty
intolerable.”
Mr. McCauley also testified that his hearing loss and tinnitus were aggravated by the
noise emanating from 175 Post Road.
Mr. McCauley testified that commencing the instant civil action “seemed like
the only avenue left after * * * the police department couldn’t really do much for us
anymore.” He further commented: “We needed relief from this, it’s just been hell.”
On cross-examination, he acknowledged that JOGO Corporation was no longer
active at 175 Post Road, but he added that “the noise * * * since JOGO left the site
had been more, very loud engine noises * * *.”
-7-C
The Testimony of Matthew Jerzyk
Matthew Jerzyk was the next witness to testify. He testified that he lives in
the Pawtuxet Village area and that his property “abuts 175 Post Road,” although the
two properties are separated by the Pawtuxet River. When asked whether he was
able to “hear what’s going on at 175 Post Road” from his property, Mr. Jerzyk stated:
“[F]or me and my family, because our deck looks right out on to this property, this
is a pretty awful intrusion.” He testified that, prior to JOGO’s arrival at 175 Post
Road there had been some “occasional noise,” but he contrasted that with “the
constant * * * construction noise that happened when JOGO started.” He added that,
in “the very recent weeks,” just before the hearing in November of 2024, there had
been constant noise emanating from the 175 Post Road property.
D
The Testimony of Cody Silva
Cody Silva, plaintiffs’ landscaper, next testified. Mr. Silva stated that, on
September 14, he and his father were working at the 141 Post Road property. He
further stated:
“[M]e and my father were working in the backyard [of
plaintiffs’ property] doing some trimming of dead lim[b]s
on the trees and I noticed a man who I now know to be
Artak walking the back property and he seemed to be
recording us working at the time * * *.”
-8-It was Mr. Silva’s further testimony that, when he noticed this, he “took a quick
video to show [Ms. Carlton] the gentleman that was recording to see if she knew
him * * *.” Mr. Silva stated that he had contacted Ms. Carlton about the incident
because he “thought it was kind of a little interesting that somebody was recording
us.”
E
The Testimony of Sergeant Vincent Sollitto
Sergeant Vincent Sollitto, a Detective Sergeant assigned to the license bureau
of the Providence Police Department, also testified. He stated that, on July 24, 2024,
Captain Charles Boisseau of the Warwick Police Department requested that he come
to plaintiffs’ property to conduct sound readings since the Warwick Police
Department did not possess its own “sound meter.”4 Sergeant Sollitto recalled that
on July 24 he took decibel readings with a sound meter from 10:30 a.m. until 10:46
a.m. He stated that he conducted the sound readings from the “left rear corner area”
of plaintiffs’ property. He further stated: “When I was taking the reading I heard a
banging type noise and also what * * * appeared to be a back up beeper from some
type of heavy equipment.” Sergeant Sollitto testified that he took five readings and
that two of those readings “contained * * * the banging noise and the back up
4
Sergeant Sollitto explained that a sound meter is a device used to measure the decibel level of particular sounds. He added that the sound meter is calibrated before and after each measurement.
-9-beeping noise * * *.” He added that both of those readings were “ten decibels over
the neighborhood residual” level.5 (He explained that “the neighborhood residual”
level is the “normal neighborhood decibel level” without “some type of other
extraneous sound.”)
Sergeant Sollitto’s report about his sound readings was entered as a full
exhibit at the hearing. The Sergeant also recalled that, after he completed his report,
he gave a copy to Captain Boisseau.
F
The Testimony of Patrolman James Wenneman
Patrolman James Wenneman of the Warwick Police Department was the next
witness to testify. He stated that Captain Boisseau had shown him the noise
measurement report and instructed him “to respond over to 175 Post Road and issue
[JOGO] a violation.” He added that, on August 8, 2024, he went to that property
and spoke to one Anderson DiPreto, who told him that the owner of JOGO
Corporation was one Kenneth Joensson. Officer Wenneman added: “After I wrote
the ticket I gave it to Anderson and instructed [him] to give it to Mr. Joensson.”
5
According to Sgt. Sollitto, those readings were “60.4 for the decibel level for the banging noise and 68 decibel level for the backup beeper.” As we discuss infra, the hearing justice’s eventual preliminary injunction prohibited the creation of sounds in excess of 60 decibels.
- 10 -G
The Testimony of Captain Charles Boisseau
Captain Charles Boisseau of the Warwick Police Department testified next.
He recalled that, on or about July 16, 2024, he had responded to plaintiffs’ home at
141 Post Road in connection with a complaint about noise emanating from a
business located at 175 Post Road. He stated that, when he was at 141 Post Road,
he heard backup alarms, hammering, and construction-type noises; he added that he
was “very aware” that the noise was coming from 175 Post Road.
Following the testimony of Captain Boisseau, plaintiffs rested.
H
The Testimony of Artak Avagyan
The defense first called Artak Avagyan, one of the two owners of 175 Post
Road, to testify at the hearing. Mr. Avagyan acknowledged that at some point he
had leased a portion of the property to an entity that he referred to as North American
Crane & Rigging. He testified that he was not aware that North American Crane &
Rigging had allowed JOGO Corporation to occupy the property. Mr. Avagyan
stated: “I didn’t know who Jogo [sic] was. I didn’t know it was their stuff. I thought
it was just North American Crane.”
- 11 -I
The Testimony of Kenneth Joensson
Mr. Kenneth Joensson, the president of JOGO Corporation, was the next and
last witness to testify. He testified that JOGO Corporation is a customer of North
American Crane & Rigging. Mr. Joensson stated that JOGO had ceased operations
at the 175 Post Road property on October 18, 2024 and that, as of the time of the
preliminary injunction hearing, JOGO was no longer present at the 175 Post Road
property. He also acknowledged that he had been issued a noise violation.
Following the testimony of Mr. Joensson, the defense rested.
J
The Hearing Justice’s Decision and the Subsequent Travel of the Case
After all the witnesses had testified, the parties submitted written closing
arguments. Subsequently, on November 14, 2024, the hearing justice issued a bench
decision.
After reviewing the relevant legal standards regarding injunctive relief and
after summarizing the testimony of the above-referenced witnesses, the hearing
justice ruled that plaintiffs had “established a reasonable likelihood of success on the
merits of a complaint for a private nuisance.” He further stated:
“The totality of the evidence offered by the seven
witnesses presented by [plaintiffs] credibly establishes
that from July through October of 2024, there were
frequent periods of long continuous and unreasonably loud
- 12 -noises, some exceeding personal limits set by the City
ordinance generated by tenants on defendants’ property.
There are also occasions during this time period during
which the Defendant Avagyan walked along the boundary
line of [plaintiffs’] property holding a cell phone in a
manner indicating that he was recording the [plaintiffs] on
their property.
“The continuous loud and unnatural noise generated
on the [defendants’] property and intrusive conduct related
to watching and videotaping [plaintiffs] who are parents
of a nine year old child can be construed as material
interference with the ordinary physical comfort and
reasonable use of [plaintiffs’] property.
“This [c]ourt also finds that irreparable harm could
result without a Court Order of Injunctive Relief. The
testimony of Ms. Carlton and [Mr.] McCauley clearly
establishes that their emotional health and well-being have
been adversely [a]ffected. They describe their feelings as
‘maddening,’ ‘depressing,’ and ‘hell’ in explaining their
state of mind in dealing with their situation. In addition
Mr. McCauley has a health condition, tinnitus, which is
exacerbated by prolonged periods of loud noise.
“This [c]ourt is satisfied irreparable harm results
without injunctive relief and this [c]ourt also finds that
balance of the equities favors the [plaintiffs] and serves the
public interest.”
With respect to Mr. Avagyan, the hearing justice found that he had “made it
clear that he has no desire or interest to discuss this neighborhood dispute in any
manner including during this hearing.” The hearing justice stated that “[i]njunctive
relief is the only option available at this time to maintain peace, quiet, and controlled
behavior, all of which serves the public interest.”
- 13 -Finally, the hearing justice concluded that “injunctive relief is both the best
and only option to ensure the status quo.” He then proceeded to grant plaintiffs’
request for a preliminary injunction limited to the owners of the 175 Post Road
Property (Mr. Avagyan and Mr. Beausoleil) and North American Crane & Rigging,
LLC.
An order reflecting the hearing justice’s decision was entered on November
22, 2024.6 That order stated in pertinent part:
“Defendants shall not harass, film, photograph, or
in any way interfere with Plaintiffs’ and/or their minor
child’s enjoyment of their own property.
“Defendants shall conduct no operation or activity
at 175 Post Road in Warwick that violates the City of
Warwick’s noise ordinance, which is conveyed as noises
above sixty (60) decibels.
“Defendants shall cease and desist all operations
wherein noise levels unreasonably interfere with
Plaintiffs’ and/or their minor child’s enjoyment of their
property.”
There was no objection to the language contained in the November 22, 2024 order.
On December 11, 2024, an amended order was entered; and, once again, there was
no objection to the language contained in that order.
6
The order granting the injunction had originally named JOGO Corporation as one of the defendants. However, an amended order was entered on December 11, 2024, substituting North American Crane & Rigging, LLC as a named defendant in view of the hearing justice’s understanding that JOGO Corporation had “left the property * * *.”
- 14 -In due course, Mr. Avagyan and Mr. Beausoleil filed a timely notice of appeal.
II
Issues on Appeal
Before this Court, defendants argue that the hearing justice erred in granting
the preliminary injunction, contending that he (1) erred in finding a likelihood of
success; (2) erred in finding that there was irreparable harm; (3) “failed to undertake
any balance of the equities among the parties;” and (4) erred in granting a
preliminary injunction which “lacks the specificity required in Rule 65 and this
Court’s caselaw.”7
For their part, plaintiffs contend (1) that the hearing justice did not abuse his
discretion in granting the preliminary injunction; and (2) that “[t]he hearing justice’s
order specifically prevents the nuisance at issue in this case.”
III
Standard of Review
Our review of the grant of a preliminary injunction is “limited to determining
whether the hearing justice considered and resolved each of the appropriate
7
The defendants also contend that the hearing justice erred because he “failed to consider the requirement of security.” This argument was not raised below; and therefore we shall not address it. See DeMarco v. Travelers Insurance Company, 26 A.3d 585, 628 (R.I. 2011) (“This Court has repeatedly indicated that it adheres to what is commonly called the ‘raise or waive’ rule—i.e., we do not consider issues on appeal which were not raised and properly presented during proceedings in the court below.”).
- 15 -preliminary injunction factors without abusing his or her discretion.” Vasquez v.
Sportsman’s Inn, Inc., 57 A.3d 313, 318 (R.I. 2012). The factors to be considered
are whether the moving party:
“(1) has a reasonable likelihood of success on the merits,
(2) will suffer irreparable harm without the requested
injunctive relief, (3) has the balance of the equities,
including the possible hardships to each party and to the
public interest, tip in its favor, and (4) has shown that the
issuance of a preliminary injunction will preserve the
status quo.” Iggy’s Doughboys, Inc. v. Giroux, 729 A.2d
701, 705 (R.I. 1999); see also Finnimore & Fisher Inc. v.
Town of New Shoreham, 291 A.3d 977, 983 (R.I. 2023).
IV
Analysis
A
Likelihood of Success on the Merits
The defendants contend that the hearing justice erred in finding that there was
a likelihood of success on the merits of plaintiffs’ case. It is defendants’ view that
the hearing justice (1) “erred in failing to take judicial notice of applicable federal
regulations requiring vehicles to have a reverse signal alarm;”8 and (2) “failed to
8
We note that, in their written closing argument submitted after the preliminary injunction hearing had concluded, defendants presented to the hearing justice their contention that federal preemption precludes the enforcement of the City of Warwick’s noise ordinance relative to the construction vehicle reverse signal alarms. The plaintiffs objected to defendants’ memorandum, stating that it was “well-outside the parameters of a closing argument” because there had been “no testimony”
- 16 -consider that the Plaintiffs had intentionally moved into an industrial zone on a busy
highway in the flight of a busy international airport.” We will address both
arguments in turn.
Citing 29 C.F.R. § 1926.601, defendants contend that regulations of the
Occupational Safety and Health Administration (OSHA) which require that motor
vehicles have a “reverse signal alarm audible above the surrounding noise level,”9
preempt the City of Warwick’s noise ordinance.10 For their part, citing DeNucci v.
Pezza, 114 R.I. 123, 329 A.2d 807 (1974), plaintiffs contend that “[t]his Court has
relative to the preemption argument. In his November 14, 2024 bench decision, the hearing justice ruled on the federal preemption argument as follows:
“I’m not considering any of that in my decision. I was
only going to use that portion [of the closing argument]
that directly argues to the elements of preliminary
injunction and everything that applies to that.”
9
29 C.F.R. § 1926.601(b)(4) reads in relevant part as follows:
“(4) No employer shall use any motor vehicle equipment
having an obstructed view to the rear unless:
“(i) The vehicle has a reverse signal alarm audible above
the surrounding noise level or:
“(ii) The vehicle is backed up only when an observer
signals that it is safe to do so.”
10
The Noise Ordinance of the City of Warwick prohibits “[a]ny unnecessary noise or sounds which equal or exceed” 60 decibels between 8:00 a.m. and 10:00 p.m.
- 17 -held that compliance with regulatory rules, such as a zoning ordinance, does not
sanction unreasonable conduct of one landowner that invades the private rights of
his neighbor.” (Internal quotation marks omitted.) Accordingly, it is plaintiffs’ view
that “OSHA does not preempt the Superior Court’s power to declare and enjoin a
nuisance.”
It is defendants’ further contention that the hearing justice erred because he
“made no mention of the Plaintiffs having chosen to buy a home in an industrial
zone, on a busy highway, in the flight path of a high-volume airport.” Citing Weida
v. Ferry, 493 A.2d 824 (R.I. 1985), defendants argue that “a plaintiff’s choice to
move into an area where challenged activity is permitted – and where there will
inevitably be noise from the highway and airport – are among factors to consider in
determining the likelihood of success in a nuisance case.” In response, plaintiffs
argue that they “did not come to a nuisance, as their property is located in a
residential historic district, and the [defendants’] activities at 175 Post Road did not
exist at the time of [plaintiffs’] purchase.” (Internal quotation marks omitted.)
This Court has emphasized that a party’s likelihood of success on the merits
of his or her claims is “the lynchpin” for granting a preliminary injunction. See
School Committee of the Town of North Kingstown v. Crouch, 808 A.2d 1074, 1077
(R.I. 2002). We have repeatedly held that “a cause of action for a private nuisance
arises from the unreasonable use of one’s property that materially interferes with a
- 18 -neighbor’s physical comfort or the neighbor’s use of his real estate.”
Hydro-Manufacturing, Inc. v. Kayser-Roth Corp., 640 A.2d 950, 957 (R.I. 1994)
(emphasis and internal quotation marks omitted); see also Silva v. Laverty, 203 A.3d
473, 481 (R.I. 2019).
It is our view that defendants’ argument that “OSHA regulations preempt
Warwick’s [noise] ordinance,” lacks merit. Significantly, the record is replete with
evidence that the noise about which plaintiffs complained was by no means
comprised solely of reverse signal alarms emanating from construction vehicles in
the process of backing up. Rather, various witnesses testified to, and the hearing
justice heard recordings of, other sources of noise, including hammering, banging,
and other construction-related sounds. Therefore, we perceive no error in the fact
that the hearing justice did not take judicial notice of the federal regulation at issue.
Even assuming, arguendo, that the reverse signaling of construction vehicles
was the sole noise at issue, it is unlikely that defendants could prove federal
preemption in the instant case. 29 C.F.R. § 1926.601(b)(4)(ii) provides for an
alternative to an audible reverse signal alarm—specifically that “an observer” may
signal that it is safe to back up the vehicle. Accordingly, compliance with both
regulations at issue—i.e., the OSHA regulation and the City of Warwick’s noise
ordinance—is not a physical impossibility. See Puerini v. LaPierre, 208 A.3d 1157,
1163 (R.I. 2019) (stating that “[c]onflict preemption exists when compliance with
- 19 -both federal and state regulations is a physical impossibility”) (quoting Verizon New
England Inc. v. Rhode Island Public Utilities Commission, 822 A.2d 187, 192 (R.I.
2003)).
The defendants also argue that the hearing justice erred in “fail[ing] to
consider that the Plaintiffs had intentionally moved into an industrial zone on a busy
highway in the flight of a busy international airport.” We disagree with defendants’
contention in this regard. In Weida v. Ferry, 493 A.2d 824 (R.I. 1985), this Court
specifically stated: “We believe that one’s coming to the nuisance is simply one
factor that may be considered in determining whether or not a defendant’s or a
respondent’s conduct was an unlawful interference with a neighbor’s real estate.”
Weida, 493 A.2d at 827. It will be recalled that plaintiffs’ property is located in a
residential zoning district, and that plaintiffs purchased their home in 2021, whereas
the instant noise issue did not arise until July of 2024 when plaintiffs began hearing
persistent construction-related noises emanating from defendants’ property. For
these reasons, we view defendants’ argument relative to the coming to the nuisance
doctrine as unpersuasive.
We further note that, in ruling on the likelihood of success on the merits of
plaintiffs’ private nuisance action, the hearing justice stated:
“[T]he [plaintiffs] have established a reasonable
likelihood of success on the merits of a complaint for a
private nuisance. The [plaintiffs] have established what is
required, a prima facie case of private nuisance. The
- 20 -totality of the evidence offered by the seven witnesses
presented by [plaintiffs] credibly establishes that from July
through October of 2024, there were frequent periods of
long continuous and unreasonably loud noises, some
exceeding personal limits set by the City ordinance
generated by tenants on defendants’ property. There are
also occasions during this time period during which the
Defendant Avagyan walked along the boundary line of
[plaintiffs’] property holding a cell phone in a manner
indicating that he was recording the [plaintiffs] on their
property.
“The continuous loud and unnatural noise generated
on the [defendants’] property and intrusive conduct related
to watching and videotaping [plaintiffs] who are parents
of a nine year old child can be construed as material
interference with the ordinary physical comfort and
reasonable use of [plaintiffs’] property.”
In light of the record before us, it is clear that the hearing justice did not err in
determining that plaintiffs had demonstrated a likelihood of success on the merits of
their private nuisance action.
B
Irreparable Harm
The defendants contend that the hearing justice erred in finding irreparable
harm. First, defendants argue that the hearing justice erred in “focus[ing] on adverse
effects on the emotional health and well-being of both plaintiffs” because “there was
no competent medical evidence offered * * * to satisfy the ‘minimum requirement’
for evidence of harm of a medical nature.” (Internal citations omitted.) In response,
plaintiffs aver that “[t]he hearing justice was also correct to find that the harm
- 21 -suffered without injunctive relief was irreparable.” It is plaintiffs’ position that
“[h]aving listened to the recordings, the hearing justice agreed with [plaintiffs’]
description of the noise as ‘maddening,’ concurred that their statements that the noise
rendered their time at home to be ‘depressing,’ and like living in ‘hell’ to be
reasonable characterizations of the impact they were experiencing.”
We have held that “[a] party seeking injunctive relief must demonstrate that it
stands to suffer some irreparable harm that is presently threatened or imminent and
for which no adequate legal remedy exists to restore that plaintiff to its rightful
position.” Finnimore & Fisher Inc., 291 A.3d at 986 (quoting Nye v. Brousseau, 992
A.2d 1002, 1010 (R.I. 2010)). We have further stated that “[i]rreparable injury must
either be presently threatened or imminent * * *.” Id. (quoting Hebert v. City of
Woonsocket by and through Baldelli-Hunt, 213 A.3d 1065, 1077 (R.I. 2019)).
First, it is our opinion that defendants’ assertion that plaintiffs’ failure to
produce medical evidence relative to their alleged injuries was fatal to their private
nuisance claim is not well-founded. Specifically, defendants’ reliance upon Parrillo
v. F.W. Woolworth Company, 518 A.2d 354 (R.I. 1986), to support their assertion
that plaintiffs needed to present “competent evidence of medical causation” to opine
on the adverse effects of the noise at issue on their emotional health and well-being
is unavailing. In Parrillo, the plaintiff sought damages pursuant to injuries sustained
in a slip-and-fall accident. Parrillo, 518 A.2d at 354. The Parrillo court held that
- 22 -certain medical evidence was inadmissible because it failed to establish a causal
relationship between the defendant’s act or omission and the plaintiff’s injury. See
id. at 355-56.
In the instant case, in contrast with the situation in Parrillo, plaintiffs did not
seek relief in the form of damages as a result of defendants’ negligence. See Parrillo,
518 A.2d at 355-56. Rather, the irreparable harm which plaintiffs alleged that they
were being subjected to was the “loss of use and enjoyment of their property” caused
by “[d]efendants’ unreasonable use of their property.” See Weida, 493 A.2d at 825.
Accordingly, the hearing justice did not err in taking note of the effect of the noise
at issue on plaintiffs’ emotional health and well-being based on the undisputed
evidence contained in the record. The brief lay testimony about physical symptoms
experienced as a result of the noise issue was essentially of the de minimis variety,
and we decline to hold that expert medical testimony was required in this case.
Additionally, the hearing justice, in referencing the testimony elicited at the
preliminary injunction hearing, made specific findings as to how plaintiffs’
emotional health and well-being was adversely affected by defendants’ conduct. The
hearing justice expressly stated:
“The testimony of Ms. Carlton and [Mr.] McCauley
clearly establishes that their emotional health and
well-being have been adversely [a]ffected. They describe
their feelings as ‘maddening,’ ‘depressing,’ and ‘hell’ in
explaining their state of mind in dealing with their
situation. In addition Mr. McCauley has a health
- 23 -condition, tinnitus, which is exacerbated by prolonged
periods of loud noise.”
In ruling on the irreparable harm requirement, the hearing justice determined:
“This [c]ourt is satisfied irreparable harm results
without injunctive relief * * *.
“The [plaintiffs] have provided credible evidence
through their own observations and corroborated by other
witnesses including police officers that activities on
[defendants’] property at 175 Post Road created a material
interference with [plaintiffs’] ordinary physical comfort,
emotional well being and reasonable use of their
property.”
As a result, we see no abuse of discretion in the hearing justice’s ruling that
irreparable harm would result without the issuance of injunctive relief.
It is further defendants’ position that the hearing justice “glossed over the
availability of money damages” to compensate plaintiffs’ “claimed injuries” and
that, therefore, he “failed in execution of the irreparable harm step in this Court’s
required analysis for the grant of preliminary relief.” For their part, citing Dowdell
v. Bloomquist, 847 A.2d 827 (R.I. 2004), and Harris v. Town of Lincoln, 668 A.2d
321 (R.I. 1995), plaintiffs contend that “private nuisance has been recognized as a
cause of action that merits both money damages and injunctive relief.” We have
stated that “a plaintiff in a nuisance action is not required to elect between injunctive
relief and monetary damages.” Harris, 668 A.2d at 328. And, we have further stated:
“The rule of law is well settled that every person is
bound to use his property so as not to injure that of another,
- 24 -or interfere with the reasonable and proper enjoyment
thereof; and that the carrying on of a business, which
creates noisome smells, or noxious vapors, or causes great
and disturbing noises, jarring, or vibrations, which affect
injuriously property in the vicinity or render the
occupation thereof inconvenient and uncomfortable, is a
nuisance for which a person whose property is damaged,
or whose health is injured, or whose reasonable enjoyment
of his estate, as a place of residence, is impaired or
destroyed thereby, may maintain an action to recover
compensation for the injury, and that in such case a court
of equity will restrain the continuance of the nuisance by
injunction.” Blomen v. N. Barstow Co., 35 R.I. 198, 211,
85 A. 924, 928 (1913); see DeNucci, 114 R.I. at 128, 329
A.2d at 810.
In the instant case, the relief sought by plaintiffs is a return to the status quo as it
existed prior to July of 2024 before the instant noise issue began. Money damages
alone would not sufficiently provide plaintiffs with the use and quiet enjoyment of
their land. See Blomen, 35 R.I. at 211, 85 A. at 928. Accordingly, we see no reason
to disturb the hearing justice’s determination that irreparable harm would result
without the issuance of injunctive relief.
C
Balancing of the Equities
It is defendants’ contention that the hearing justice “failed to undertake any
balance of the equities among the parties.” In addressing that issue, the hearing
justice specifically found that the “balance of the equities favors the [plaintiffs] and
serves the public interest.” He explained his thinking in that regard as follows:
- 25 -“Defendant Avagyan has made it clear that he has
no desire or interest to discuss this neighborhood dispute
in any manner including during this hearing. * * *
“[Abusive] conduct between neighbors that cannot
be addressed because of one party’s complete refusal to
participate puts this [c]ourt in the position where it must
act to preserve and protect the individuals [a]ffected by
such conduct as well as the public’s interest in having
community residence, even those with different
viewpoints being able to have their issues addressed in a
civil manner.
“Injunctive [r]elief is the only option available at
this time to maintain peace, quiet, and controlled behavior,
all of which serves the public interest.”
Once again, we perceive no abuse of discretion in the hearing justice’s ruling with
respect to the balancing of the equities. The last sentence from the just-quoted
portion of the decision reflects the laudably sensitive balancing conducted by the
hearing justice in considering the extensive evidence before him.
D
Preservation of the Status Quo
Finally, with respect to whether a preliminary injunction would preserve the
status quo, we are impressed by the hearing justice’s clear statement that
“considering Defendant[] Avagyan’s complete refusal to address the noise issues
going forward, injunctive relief is both the best and only option to ensure the status
quo.” It is our understanding that the “status quo” in this case would be the situation
that existed before the noise issue arose. With that understanding in mind and
- 26 -bearing in mind the hearing justice’s statement concerning Mr. Avagyan’s “complete
refusal,” it is our view that the hearing justice certainly did not abuse his discretion
in ruling that the preliminary injunction would serve to preserve the status quo.
* * * * * *
Having reviewed the entire record, we perceive no basis for concluding that
the hearing justice abused his discretion in addressing each of the above-discussed
required criteria relative to the issuance of a preliminary injunction. See Vasquez, 57
A.3d at 318 (stating that this Court “will not find an abuse of discretion if the party
requesting the preliminary injunction at least has made out a prima facie case”). In
his bench decision, the hearing justice conducted a thorough review of the evidence
presented during the three days of the preliminary injunction hearing. He
summarized the testimony of each of the witnesses and made credibility findings on
the record. He specifically found that plaintiffs provided “credible evidence through
their own observations and corroborated by other witnesses including police officers
that activities on [defendants’] property at 175 Post Road created a material
interference with [plaintiffs’] ordinary physical comfort, emotional well being and
reasonable use of their property.” Given the hearing justice’s cogent and thorough
consideration of each aspect of the preliminary injunction analysis, we see no basis
for finding an abuse of discretion in any of his several discretionary rulings. See
- 27 -Gianfrancesco v. A.R. Bilodeau, Inc., 112 A.3d 703, 711 (R.I. 2015); see also United
Parcel Service, Inc. v. Griffiths, 297 A.3d 502, 503 (R.I. 2023) (mem.).
E
Specificity
The defendants also question on appeal the degree of specificity in the
preliminary injunction order because, in their view, “the language of the order is
insufficiently clear and therefore does not satisfy the specificity and reasonable detail
requirements of Rule 65 [of the Superior Court Rules of Civil Procedure].”
However, the defendants did not object on specificity grounds to the language
contained in the November 22, 2024 order or in the December 11, 2024 amended
order. Accordingly, this issue has been waived.11 See DeMarco v. Travelers
Insurance Company, 26 A.3d 585, 628 (R.I. 2011) (“This Court has repeatedly
indicated that it adheres to what is commonly called the ‘raise or waive’ rule—i.e.,
we do not consider issues on appeal which were not raised and properly presented
during proceedings in the court below.”).
11
Assuming arguendo that the specificity argument were properly before us, we would not be persuaded by the defendants’ contention in this regard. It is our view that the order is more than sufficiently clear and sufficiently specific to have given notice to defendants as to the prohibited conduct. See Ventures Management Co., Inc. v. Geruso, 434 A.2d 252, 255 (R.I. 1981).
- 28 -V
Conclusion
For the reasons set forth in this opinion, we affirm the order of the Superior
Court. The record may be returned to that tribunal.
- 29 -STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903
OPINION COVER SHEET
Title of Case Vanessa Carlton et al. v. Artak Avagyan et al.
No. 2025-132-Appeal.
Case Number
(KC 24-1004)
Date Opinion Filed July 14, 2026
Suttell, C.J., Robinson, Lynch Prata, Long, and
Justices
Flaherty (ret.), JJ.
Written By Associate Justice William P. Robinson III
Source of Appeal Providence County Superior Court
Judicial Officer from Lower Court Associate Justice Daniel A. Procaccini
For Plaintiffs:
Nicholas J. Hemond, Esq.
Attorney(s) on Appeal
For Defendants:
Thomas M. Dickinson, Esq.
SU-CMS-02A (revised November 2022)