Rule 6(c) Strictness in Summary Judgment: Unfiled/Unserved Affidavits Cannot Support Judgment

Introduction

In American Express National Bank v. Anna Perretta (R.I. May 15, 2026), the Supreme Court of Rhode Island vacated a Superior Court summary judgment entered for a credit-card issuer in a debt collection action. American Express National Bank sued Anna Perretta for a claimed credit-card balance of $123,561.19 under three theories—breach of contract, account stated, and book account. Perretta denied the material allegations.

The appeal centered on a procedural—and ultimately dispositive—issue: whether the Superior Court could grant summary judgment by relying on a supporting affidavit that was not served with the motion and was not properly filed in the record, but instead was emailed to the hearing justice’s clerk on the day of the hearing. A related issue was Perretta’s appellate claim of a due process violation based on the late affidavit.

Summary of the Opinion

The Court held that American Express’s late-submitted affidavit (emailed the morning of the summary-judgment hearing) was neither properly nor timely filed and should not have been considered. Because the hearing justice expressly relied on that affidavit in granting summary judgment, the Supreme Court vacated the grant of summary judgment and the resulting final judgment and remanded for further proceedings.

The Court further noted that the claimed due process violation could not be considered on appeal because it was not raised below, applying Rhode Island’s “raise or waive” doctrine.

Analysis

Precedents Cited

1) Standards governing summary judgment (de novo review and burden allocation)

  • Boggs v. Johnston Asphalt, LLC and McAdam v. Grzelczyk: The Court reaffirmed that summary judgment decisions are reviewed de novo, applying the same standard as the motion justice. This posture matters here because the Supreme Court independently evaluated whether the Superior Court relied on admissible, properly presented materials.
  • Generation Realty, LLC v. Catanzaro: The Court reiterated that it will affirm only if, viewing admissible evidence in the nonmovant’s favor, there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. The emphasis on “admissible evidence” underlined the procedural defect: an affidavit not properly filed/served should not be part of the evidentiary basis for judgment.
  • Mills v. State Sales, Inc.: The Court emphasized that the movant bears the initial burden to show the absence of material fact disputes. Here, American Express filed a “very abbreviated” motion without evidentiary support and then attempted to cure the deficiency at the last moment, colliding with procedural rules designed to ensure fair notice and meaningful response.
  • Estate of Giuliano v. Giuliano: The Court invoked Rhode Island’s cautionary approach—summary judgment is an “extreme remedy” and should be used only when it is “absolutely clear” no genuine issue exists. That principle amplified the Court’s unwillingness to tolerate “fast-and-loose” motion practice that deprives the opposing party of a fair chance to meet the movant’s proof.

2) Proper filing/service and the unfairness of late evidentiary submissions

  • Sullivan v. Town of Coventry: Cited for the proposition that an untimely or improperly filed submission should not be treated as properly before the court. The Supreme Court used Sullivan to support its conclusion that emailing an affidavit to the judge’s clerk on the hearing date does not satisfy filing requirements and cannot reliably become part of the record.
  • Cia. Petrolera Caribe, Inc. v. Arco Caribbean, Inc.: The Court relied on this fairness principle: the nonmoving party should have an opportunity to examine and respond to the moving party’s papers before the court considers them. This case supplied the procedural due-process logic (in the practical, notice-and-opportunity-to-respond sense) that informed the Court’s strict enforcement of service and timing rules.

3) Appellate preservation (“raise or waive”)

  • State v. Figuereo: The Court applied the “raise or waive” rule to reject Perretta’s due process argument because it was not presented to the Superior Court. Even though the Court vacated on procedural-rule grounds, it underscored that constitutional (or constitutional-flavored) arguments must be timely raised below to be reviewed on appeal.

Legal Reasoning

1) Rule 6(c) is not optional when a motion is supported by affidavit

The Court’s core holding turns on the plain directive of Superior Court Rule of Civil Procedure 6(c): “When a motion is supported by affidavit, the affidavit shall be served with the motion * * *.” While American Express initially filed a motion for summary judgment without an affidavit (permissible under Super. R. Civ. P. 56(a)), it later attempted to introduce a substantial affidavit (twenty-four pages) by emailing it to the hearing justice’s clerk on the morning of the hearing.

That choice had two critical consequences in the Court’s view:

  1. Improper record status: The affidavit was not timely and properly filed; indeed, the Court observed there was “no indication” it was ever filed with the Superior Court clerk and it was not part of the record on appeal.
  2. Unfairness to the nonmovant: Late delivery undermined the defendant’s ability to respond meaningfully to the evidence relied upon for dispositive relief.

2) Reliance on an unfiled/untimely affidavit is reversible procedural error

The Supreme Court treated the defect as inherently prejudicial in the summary-judgment context because summary judgment depends on an orderly exchange of evidentiary materials. The transcript confirmed the problem: the hearing justice stated, “Yeah, I am relying on it.” Once the judgment depended on a procedurally improper affidavit, vacatur followed.

3) Minimum corrective measure: continuance/postponement

Importantly, the Court did not merely say the affidavit was defective; it also articulated what should have happened procedurally: at a minimum, the violation should have resulted in postponement of the hearing. That is a practical rule-of-thumb emerging from the opinion—when a movant attempts to support a dispositive motion with late-served materials, the court should not proceed to decision in a way that deprives the nonmovant of a fair opportunity to respond.

4) Professional responsibility and appellate practice signals

The Court’s reasoning was reinforced by pointed commentary: it characterized the bank’s conduct as “fast-and-loose,” “unprofessional,” and “unacceptable.” It also noted—separately—its displeasure that the bank failed to file a counter-statement and did not appear for oral argument, contrary to Article I, Rule 12A of the Supreme Court Rules of Appellate Procedure. While not the basis of decision, these remarks signal an institutional insistence on procedural discipline at both trial and appellate levels.

Impact

  • Stricter enforcement of motion practice rules in dispositive settings: The opinion makes clear that Rule 6(c)’s service-with-the-motion requirement has real teeth, particularly when an affidavit supplies the evidentiary foundation for summary judgment.
  • Record integrity and appellate review: By emphasizing that the affidavit was not part of the record, the Court reinforces that “off-record” submissions—emailed to chambers, lodged informally, or otherwise not properly filed—are incompatible with transparent adjudication and meaningful appellate review.
  • Fair opportunity to respond as a procedural safeguard: The decision operationalizes the principle that summary judgment must be decided on materials the nonmovant has had a fair chance to examine and answer; otherwise, the process is structurally unfair even before reaching merits.
  • Guidance to trial courts: Trial justices are effectively cautioned that, when confronted with late evidentiary submissions supporting dispositive relief, the proper response is to refuse consideration or continue the hearing—rather than proceed and risk reversible error.
  • Preservation doctrine remains a barrier to late constitutional claims: Even where a litigant can articulate due process concerns, State v. Figuereo underscores that such arguments must be raised in the trial court to be considered on appeal.

Complex Concepts Simplified

  • Summary judgment: A procedure to end a case without trial when there is no real dispute over important facts and the law clearly favors one side. Because it ends the case early, courts require strict compliance with rules and reliable evidence.
  • Affidavit: A written statement of facts sworn under oath. In summary judgment, affidavits often supply the admissible facts needed to prove there is no genuine dispute.
  • Rule 6(c) (service requirement): If a party supports a motion with an affidavit, that affidavit must be served along with the motion. The aim is simple: the opposing party must get the evidence in time to respond.
  • “In the record”: Materials formally filed with the court clerk and included in the case file. Appellate courts generally review only what is in the record; informal delivery to chambers is not a substitute.
  • De novo review: The appellate court gives no deference to the trial court’s legal conclusion on summary judgment and independently applies the standard.
  • Raise or waive: If an argument is not presented to the trial court, it is typically forfeited on appeal—even if it is framed as a constitutional claim.

Conclusion

American Express National Bank v. Anna Perretta establishes a clear procedural principle for Rhode Island civil practice: a summary judgment decision cannot rest on an affidavit that was not properly filed and was not served in compliance with Rule 6(c). When a movant attempts to introduce such evidence at the last moment—especially by informal means like emailing chambers—the proper course is to exclude the material or continue the hearing to protect the nonmovant’s ability to respond. The opinion also reinforces two broader themes: summary judgment demands scrupulous procedural regularity, and appellate review remains constrained by record integrity and the “raise or waive” rule.