Opinion
C. A. N3-2023-0293A
01-26-2024
CITY OF NEWPORT Plaintiff, v. 6365 FOURTH AVENUE CORP. Defendant.
For Plaintiff: Girard Galvin, Esq. Whitney Anderson, Esq. For Defendant: Michael L. Mineau, Esq.
For Plaintiff: Girard Galvin, Esq. Whitney Anderson, Esq.
For Defendant: Michael L. Mineau, Esq.
DECISION
CARNES, J.
Before this Court for decision is a Motion to Dismiss a Newport Municipal Court matter brought by 6365 Fourth Avenue Corp. (Defendant). The case stems from an October 2, 2023 decision from the Municipal Court that found Defendant violated Newport Code of Ordinances Chapter 17.04, Section 17.04.050(A)(1) (Section 17.04.050(A)(1)) for failure to operate a guesthouse without proper zoning permits. On appeal, Defendant's Motion to Dismiss seeks to dismiss the City of Newport's Criminal Complaint and vacate the Newport Municipal Court's judgment. Defendant contends that the Municipal Court's decision should be vacated and dismissed because Newport Code of Ordinances Chapter 5.40, Section 5.40.020 (Section 5.40.020), and Newport zoning ordinances in conjunction with Section 17.04.050(A)(1) are preempted by G.L. 1956 § 42-63.1-14. Defendant has not stated under which rule it files its Motion to Dismiss; however, this Court ostensibly finds that Defendant's motion is pursued under Rule 12(b)(2) of the Superior Court Rules of Criminal Procedure. Jurisdiction is pursuant to Rhode Island Public Laws 1987, Ch. 511, 87-H 7116.
Defendant was also found guilty of overcrowding under Section 17.08.010; however, neither party has argued this count, and therefore it will not be addressed.
While the Defendant in the current case was not found guilty on Section 5.40.020, this Court will discuss it to provide context. This is due to the preemption issues raised in both parties' memoranda, which delve into preemption issues relevant to multiple concurrent cases before this Court for consideration with the same Defendant.
Rule 12(b)(2) states, in pertinent part:
"(2) Defenses and Objections Which Must Be Raised. The defense of double jeopardy and all other defenses and objections based on defects in the institution of the prosecution or in the indictment, information, or complaint . . . may be raised only by motion before trial." Super. R. Crim. P. 12(b)(2).
Public Laws 1987, Chapter 511, s 1, provides in pertinent part:
"The City Council of the City of Newport may establish a Municipal Court and confer upon such court original jurisdiction, notwithstanding any other provisions of the general laws, to hear and determine causes involving violation of any ordinance . . .; Provided, however, that any defendant found guilty of any offense . . . may within seven (7) days of such conviction file an appeal from said conviction to the Newport Superior Court and be entitled in the latter court to a trial de novo . . . ."
"[T]he aforementioned Public Law has not been placed into the Rhode Island General Laws. In fact, neither have the subsequent amendments to the Public Law, specifically, P.L.1993, Chapter 93-91, s 1 and P.L.1998, Chapter 98-477, s 1. This omission creates some ambiguity due to the fact that G.L. [1956] § 8-18-9 sets forth an appeal procedure from Municipal Courts that does not confer jurisdiction on the Superior Court. According to § 8-18-1, this appeal procedure would apply to Municipal Court decisions involving "any and all local ordinances." However, in light of the specific appeal provision found in the Public Laws, this Court will proceed to the relative merits of the present appeal." City of Newport v. Gullison Family Trust, No. N300-193, 2002 WL 220782, at *1 n.1 (R.I. Super. Jan. 24, 2002).
I
Facts and Travel
Defendant's address is located at 33 Howard Street, Unit 1, in Newport, Rhode Island (the Subject Property). Compl. at 7. On January 9, 2023, Defendant was arraigned in Newport Municipal Court on a zoning violation for Section 17.04.050(A)(1) for failure to operate a guesthouse without proper zoning permits. Id. at 4. After a hearing in the Newport Municipal Court on September 18, 2023, Defendant was found guilty under Section 17.04.050(A)(1), resulting in a $100 fine. Id. On October 2, 2023, the Newport Municipal Court issued its judgment. Id. at 2. Thereafter, on October 4, 2023, Defendant appealed the Newport Municipal Court's judgment and filed its Motion to Dismiss on November 7, 2023. See Docket. The City of Newport (City) responded with an objection filed on November 30, 2023, per this Court's scheduling order. Id. The matter came before this Court on January 5, 2024 for oral argument.
The complaint reference is located on page seven within the electronically filed complaint accessible through the Court's e-filing system.
Section 17.04.050(A)(1) states, in pertinent part:
"No building, structure or land shall hereafter be used or occupied . . . except in conformity with all of the regulations herein specified for the district in which it is located[.]" Newport Code of Ordinances Chapter 17.04, Section 17.04.050(A)(1)
II
Standard of Review
"[Preemption] works as a limitation on the exercise of inherent police powers by a governmental body when the purported regulation relates to subject matter on which superior governmental authority exists." Town of East Greenwich v. O'Neil, 617 A.2d 104, 109 (R.I. 1992). "'[M]unicipal ordinances are inferior in status and subordinate to the laws of the state.'" Id. (quoting Wood v. Peckham, 80 R.I. 479, 482, 98 A.2d 669, 670 (1953)). "[A]n ordinance inconsistent with a state law of general character and state-wide application is invalid." Id. (internal quotation omitted). The issue of preemption "requires an analysis of whether the issue is implicitly reserved within the state's sole domain." Amico's Inc. v. Mattos, 789 A.2d 899, 908 (R.I. 2002).
"A local ordinance or regulation may be preempted in two ways." Town of Warren v. Thornton-Whitehouse, 740 A.2d 1255, 1261 (R.I. 1999). "First, a municipal ordinance is preempted if it conflicts with a state statute on the same subject." Id. (citing State v. Pascale, 86 R.I. 182, 186-87, 134 A.2d 149, 152 (1957)). "Second, a municipal ordinance is preempted if the Legislature intended that its statutory scheme completely occupy the field of regulation on a particular subject." Id.; see generally 1A Norman J. Singer & J.D. Shambie Singer, Sutherland Statutes and Statutory Construction § 30:1 at 658 (7th ed., Nov. 2023 Update).
III
Analysis
Defendant asserts that Section 5.40.020 and various Newport zoning ordinances are preempted by § 42-63.1-14 because they disrupt the state's overall scheme of regulation and are in direct conflict with state law. (Def.'s Mot. to Dismiss and Vacate J. (Def.'s Mot.) 1.) Defendant bases its preemption contention on the following arguments: (1) that the City's Ordinances, by prohibiting "guest house" and "transient guest facility" uses in all residential zones, in connection with the City's guesthouse registration scheme, are in direct conflict with § 42-63.1-14; (2) that Section 5.40.020 registration requirement invades a field of regulation that is fully occupied by state law; and (3) that due to the application of preemption, the Newport Municipal Court's judgment should be vacated. See Def.'s Mot. 5-9.
The City responds that (1) its municipal zoning ordinances that restrict the use of "guest house" and "transient guest facility" are not preempted by § 42-63.1-14 because the City is not prohibiting Defendant from renting the property at issue; rather, it is regulating zoning uses as afforded to it under the Rhode Island Zoning Enabling Act of 1991 (Zoning Enabling Act); (2) the General Assembly has not manifested intent, explicit or implied, that § 42-63.1-14 solely occupies the field of short-term rental regulations; and (3) vacating the Municipal Court's judgment is unnecessary due to this Court's de novo review. See (City's Obj. to Def.'s Mot. To Dismiss and Vacate J. (City's Obj.) 2-7.
A
Preemption of Newport Zoning Ordinances by § 42-63.1-14
Before addressing the parties' arguments, this Court pauses to define "guest house" and "transient guest facility." Under Newport Code of Ordinances Chapter 17.08, Section 17.08.010., a Guest House and Transient Guest Facilities are defined as follows:
"1. Guest House. A building in which one or more dwelling units or rooms for sleeping are rented for lodging accommodations for periods of twenty nine (29) consecutive days or less with or without the furnishing of meals and with the owner or a manager who is in charge and manages such rentals residing on the guest house property.
". . .
"3. Transient Guest Facilities. Buildings with rooms or units offered to the public for occupancy as lodging accommodations on a day-to-day, or week-to-week basis and dependent on external facilities to the room or unit for the furnishing of meals, including, but not limited to, hotels, motels, inns and time-share properties and units[.]" Section 17.08.010.
Additionally, Newport Code of Ordinances Chapter 5.40, Section 5.40.010 provides a similar definition for "Transient Guest Facility," which is the following:
"'Transient guest facility' for the purposes of this chapter means a building or facility that provides transient lodging accommodations to guests or visitors for occupancy for not more than thirty (30) days, which may include, but not be limited to, residences, homes, hotels, motels, guest houses, rooming houses, lodging houses, inns, bed and breakfast, houseboats, and the like, whether by way of renting rooms, dwelling units, residential homes, condominium units, boats or vessels." Newport Code of Ordinances Chapter 5.40, Section 5.40.010.
Defendant argues that by imposing a restriction on "Guest House" and "Transient Guest Facilities" uses in residential-zoned areas, the City created a limitation on short-term rentals that, in turn, violates § 42-63.1-14, which states that municipalities shall not prohibit property owners from offering their property for tourist or transient use on hosting platforms. See Def.'s Mot. at 5. Defendant contends that these ordinances create a regulatory zoning scheme that conflicts with § 42-63.1-14(a) because the statute prohibits municipalities from restricting owners' short-term rental use. See id.
Defendant also asserts the General Assembly intended to occupy the field of short-term rentals when it "adopted a scheme to promote, tax, and regulate short-term rental and transient guest uses as part of [§ 42-63.1-14]", and that scheme included the protection of property owner's rights to use their property for short-term rental use, no matter the applicable local zoning ordinances. See Def.'s Mot. at 9. Defendant contends that the City's ordinances scheme and Section 5.40.010 do not align with the General Assembly's intent to regulate short-term rentals, and thus, they are preempted. See id.
In response, the City argues that there is no conflict between its zoning ordinances and § 42-63.1-14, as the Zoning Enabling Act delegates authority to municipalities to determine zoning uses. See City's Obj. at 2-3. The City emphasizes that it has not imposed a ban on guest houses or transient guest facilities. See id. at 4. Instead, it argues that the ordinances are within the scope of authority granted by the Zoning Enabling Act, allowing it to manage and dictate land use in a way that aligns with local needs and priorities, without contravening § 42-63.1-14. See id.
The City also argues that if the General Assembly had desired to override municipal zoning codes and permit short-term rental units universally, it could have explicitly done so under G.L. 1956 § 45-24-37, which enumerates permitted uses in all districts regardless of municipal zoning code restrictions. See id. at 6. Furthermore, the City emphasizes that the General Assembly recently amended the Zoning Enabling Act, during which it had the opportunity to restrict municipalities from determining zoning areas for guest houses and transient guest facilities but chose not to do so. This inaction, it argues, indicates that the General Assembly does not intend to preempt local zoning authority in this domain, thereby allowing municipalities the discretion to regulate short-term rentals within their jurisdictions. See id.
1
Direct Material Conflict
"An ordinance is invalid when it is 'in direct and material conflict with a state law.'" State ex rel. City of Providence v. Auger, 44 A.3d 1218, 1229 (R.I. 2012) (quoting Town of Glocester v. R.I. Solid Waste Management Corp., 120 R.I. 606, 607, 390 A.2d 348, 349 (1978)). The existence or lack of such conflict "'depends on what the Legislature intended when it enacted the statute.'" Id. See generally Freightliner Corp. v. Myrick, 514 U.S. 280, 287 (1995).
Defendant argues that various City of Newport ordinances, in the form of a zoning scheme, are preempted by § 42-63.1-14(a) of the General Laws. See Def.'s Mot. at 5. The section of the General Laws in dispute provides as follows:
See Newport Zoning Ordinance, §§ 17.16.020, 17.20.020, 17.24.020, 17.28.020, 17.32.020, 17.36.020, 17.40.020, 17.44.020, and 17.48.020.
"For any rental property offered for tourist or transient use on a hosting platform that collects and remits applicable sales and hotel taxes in compliance with § 44-18-7.3(b)(4)(i), § 44-18-18, and § 44-18-36.1, cities, towns, or municipalities shall not prohibit the owner from offering the unit for tourist or transient use through such hosting platform, or prohibit such hosting platform from providing a person or entity the means to rent, pay for, or otherwise reserve a residential unit for tourist or transient use." Section 42-63.1-14(a) (emphasis added).
On one hand, the Zoning Enabling Act, which delegates authority to municipalities to enact local ordinances, expressly states what the City can do: it may limit the types of uses available in a particular zone for various purposes. See § 45-24-30; see also § 45-24-29 (The Zoning Enabling Act "empower[s] each city and town with the capability to establish and enforce standards and procedures for the proper management and protection of land . . . and to employ contemporary concepts, methods, and criteria in regulating the type, intensity, and arrangement of land uses[.]"). This is what the City is doing with the various ordinances in dispute, as the City "has determined that short-term rental use is akin to allowing commercial uses in residential zones." City's Obj. at 2. On the other hand, § 42-63.1-14 sets out what the City may not do: it shall not prohibit an owner from offering rental property for tourist or transient use through a hosting platform. See § 42-63.1-14.
Defendant's contention that the City, through a scheme of using zoning ordinances to limit short-term rental uses like "guest house" and "transient guest facilities" in residential areas, conflicts with § 42-63.1-14., misses the mark. When faced with the task of statutory construction, the Court should institute a "'practice of construing and applying apparently inconsistent statutory provisions in such a manner so as to avoid the inconsistency.'" Such v. State, 950 A.2d 1150, 1156 (R.I. 2008) (quoting Kells v. Town of Lincoln, 874 A.2d 204, 212 (R.I. 2005)). "When construing statutes, [a] [c]ourt's role is 'to determine and effectuate the Legislature's intent and to attribute to the enactment the meaning most consistent with its policies or obvious purposes.'" Id. at 1155-56 (quoting Brennan v. Kirby, 529 A.2d 633, 637 (R.I. 1987)).
Defendant's argument hinges on Newport Zoning Ordinances asserting a zoning scheme preventing residential owners from renting out their residential property. In response, this Court considers the Zoning Enabling Act as the statute in conflict, as it grants the City authority to regulate land use through the relevant zoning ordinances.
A direct conflict preemption issue between the Zoning Enabling Act and § 42-63.1-14 does not arise because this Court does not interpret that § 42-63.1-14 restricts a municipality's decision to determine zoning uses that relate to short-term rental properties. It is crucial to interpret § 42-63.1-14 in a manner that respects the established principle of not undermining municipal zoning authority afforded under the Zoning Enabling Act. See Such, 950 A.2d at 1156. ("'[C]ourts should attempt to construe two statutes that are in apparent conflict so that, if at all reasonably possible, both statutes may stand and be operative."') (quoting Shelter Harbor Fire District v. Vacca, 835 A.2d 446, 449 (R.I. 2003)). This Court construes § 42-63.1-14's reference to "for any rental property" to exclusively encompass rental units that adhere to local zoning regulations. This interpretation ensures that § 42-63.1-14 and the Zoning Enabling Act can coexist without conflict, each maintaining its operative force within its intended domain. See Such, 950 A.2d at 1156.
If this Court were to interpret § 42-63.1-14 as Defendant argues, this Court would have to find-by implication-that the City has no control over "guest house" and "transient guest facilities" uses. In the absence of explicit language from the General Assembly indicating that § 42-63.1-14 restricts a municipality's ability to zone short-term rental use, this Court would have to find a repeal of a municipality's power to regulate short-term rental use as granted by the Zoning Enabling Act. Such a holding would be a repeal by implication and is disfavored among the courts. See McKenna v. Williams, 874 A.2d 217, 241 (R.I. 2005) ("'[R]epeals by implication are not favored by the law.'") (quoting Berthiaume v. School Committee of City of Woonsocket, 121 R.I. 243, 248-49, 397 A.2d 889, 893 (1979)).
Although not argued, this Court recognizes that § 42-63.1-14 titled, "Offering residential units through a hosting platform," includes the defined term "residential unit." Under § 42-63.1-2, a "Residential unit" is defined as the following:
"Residential unit means a room or rooms, including a condominium or a room or a dwelling unit that forms part of a single, joint or shared tenant arrangement, in any building, or portion thereof, which is designed, built, rented, leased, let, or hired out to be occupied for non-commercial use." Section 42-63.1-2 (emphasis added).
Importantly, Chapter 63.1 of Title 42 does not include a definition for non-commercial use. Because no definition for non-commercial use is included, this Court interprets that the determination of commercial use lies with a municipality, as the Zoning Enabling Act confers on municipalities the ability to determine what constitutes commercial use and the zones where such use may be had. See § 45-24-30; see also City of Warwick v. Del Bonis Sand & Gravel Co., 99 R.I. 537, 543, 209 A.2d 227, 231 (1965) ("In the enactment of a zoning ordinance, districts may be established wherein certain uses are permitted as of right and from which all other uses are excluded."). Therefore, this Court finds no direct material conflict between the City's residential zoning ordinances and § 42-63.1-14.
This Court further finds no direct conflict with the City's registration ordinance, Section 5.40.020, and § 42-63.1-14(b)'s registration requirement. Section 5.40.020 provides:
"Each transient guest facility in the city, as defined in Section 5.40.010, shall register with the city clerk on or before June 1 and before actually renting or offering such transient guest facility for rent to guests and visitors. Each registration shall contain the name and address of the transient guest facility, the names and addresses of the owner and operator, and the number of rooms, dwelling units, or residences being utilized for transient lodging accommodations. The city shall be notified within thirty (30) days of any change in ownership." Section 5.40.020
Section 42-63.1-14(b) states
"Any short-term rental property listed for rent on the website of any third-party hosting platform that conducts business in Rhode Island shall be registered with the department of business regulation. The registration shall provide the information necessary to identify the property pursuant to subsection (d) of this section. For purposes of this section, the term 'short-term rental' means a person, firm, or
corporation's utilization, for transient lodging accommodations, not to exceed thirty (30) nights at a time." Section 42.63.1-14(b)
Implied conflict preemption can also exist "where it is impossible for a private party to comply with both. . . requirements or where an [ordinance may] stand[] as an obstacle to the accomplishment and execution of the full purposes and objectives of [the state law.]" Freightliner Corp., 514 U.S. at 287 (internal quotation omitted); accord Rhode Island School of Design v. Begin, No. PC-2020-06584, 2021 WL 5492870, at *9 (R.I. Super. Nov. 12, 2021) (quoting same). Defendant may comply with Section 5.40.020 by registering with the City Clerk of Newport without standing as an obstacle or making it impossible to register with the Department of Business Regulation under § 42-63.1-14(b). Both may be registered without making it impossible or impeding on the other; therefore, there is no direct material conflict between the registration requirements of Section 5.40.020 and § 42-63.1-14(b).
2
Occupying the Field of Regulation
"To determine whether state law preempts a municipal ordinance, [a court] must also consider 'whether the General Assembly intended that its statutory scheme completely occupy the field of regulation on a particular subject.'" Auger, 44 A.3d at 1230 (quoting Grasso Service Center, Inc. v. Sepe, 962 A.2d 1283, 1289 (R.I. 2009)). In considering Defendant's field preemption argument, it is crucial to ascertain whether the General Assembly explicitly intended, concerning the regulation of short-term rentals, that "the state control is to be exclusive or whether the control is to be exercised concurrently by the state and by the municipality." Wood, 80 R.I. at 483, 98 A.2d at 671; see also Grasso Service Center, Inc., 962 A.2d at 1290 ("When interpreting a statute, this Court's task is to give effect to the expressed intent of the General Assembly.").
This Court does not interpret § 42-63.1-14 to dominate the field of short-term rentals such that it would restrict a municipality's ability to zone for such uses. A short and plain reading of § 42-63.1-14 elucidates its control over the state's control of advertisement over such short-term rentals. See State v. Santos, 870 A.2d 1029, 1032 (R.I. 2005) ("The plain statutory language is the best indicator of legislative intent."); see also Kulawas v. Rhode Island Hospital, 994 A.2d 649, 652 (R.I. 2010) ("When the language of the statute is clear and unambiguous, it is our responsibility to give the words of the enactment their plain and ordinary meaning.").
In enacting § 42-63.1-14, the General Assembly has limited the scope of municipal authority in regulating short-term rentals that are legally zoned, as discussed above. The statute constrains municipalities from prohibiting property owners from advertising their units for tourist or transient use on hosting platforms; as stated: "cities, towns, or municipalities shall not prohibit the owner from offering the unit for tourist or transient use through such hosting platform[.]" Section 42-63.1-14(a). While this provision clearly curtails municipal powers over the advertising of short-term rentals, nothing within the plain language of the statute evinces an intent of the General Assembly to explicitly override all zoning ordinances or authorize short-term rentals in every zoned district statewide. This Court notes, as the City has argued, that if the General Assembly intended for statewide zoning to apply it could have done so under § 45-24-37. See § 45-24-37(b) (listing "permitted uses within all residential zoning use districts of a municipality and all industrial and commercial zoning. . ."). Furthermore, the Court recognizes that "[t]he Legislature is presumed to know the state of existing relevant law when it enacts or amends a statute." Narragansett Food Services, Inc. v. Rhode Island Department of Labor, 420 A.2d 805, 808 (R.I. 1980) (citing Flather v. Norberg, 119 R.I. 276, 377 A.2d 225 (1977)).
This Court also determines that there is no intent in § 42-63.1-14(b) to establish it as the exclusive registration requirement for short-term rentals thereby precluding any additional registration mandates set by individual municipalities. On its face, nowhere in § 42-63.1-14 did the General Assembly vest exclusive registration authority to the Department of Business Regulation; instead, it sets out that the "department of business regulation shall promulgate rules and regulations to correspond with and enforce this section and § 42-63.1-14.1. . ." See § 42-63.1-14(g); see also Auger, 44 A.3d at 1231 n.10 (finding that the language "[t]he director of the department of revenue is authorized to adopt rules, regulations, and procedures to be utilized in the enforcement of this chapter" does not confer exclusive enforcement or regulatory power).
Additionally, this Court does not determine there to be an implied preemption issue. The Rhode Island Supreme Court has "long recognized the doctrine of implied [preemption] and do[es] not require a clear statement by the Legislature of its intention to [preempt] local legislation" O'Neil, 617 A.2d at 109. In O'Neil, the Town of East Greenwich adopted a town ordinance that created a three-year moratorium period on the construction of transmission lines exceeding sixty kilovolts due to safety concerns. Id. at 106. The defendant, who was looking to construct power lines within the town, issued an appeal to the State of Rhode Island Public Utilities Commission (PUC) and, in Superior Court, argued the ordinance was an impermissible attempt by the town to regulate it because it was a public utility that was already regulated by the PUC. Id. at 106-07.
The Rhode Island Supreme Court held that the transmission line ordinance was preempted due to the state's occupation of public utilities. Id. at 110. The Court's findings included the conclusion that implicit preemption occurred when Title 39 as a whole conferred extensive authority to the PUC for overseeing and regulating public utilities. Id. Specifically, the Court recognized the broad reach of the PUC with enforcement, that the statute provided sufficient avenues of redress for municipal concerns, and, notably, the title encompassed a complex regulatory scheme. Id.
Here, the scope of § 42-63.1-14 does not meet the level of complexity that was found in O'Neil, and this Court holds that § 42-63.1-14 is not implicitly preempted. Section 42-63.1-14 lacks the attributes of a complex regulatory scheme in its registration requirement. Specifically, in analyzing § 42-63.1-14, as discussed above, no extensive authority has been afforded to the Department of Business Regulation concerning short-term rental authority and no avenues exist for municipal concerns. This Court observes that this statute lacks the hallmarks of a complex regulatory scheme in its registration and restriction requirements for short-term rentals. The absence of such a scheme within the statute suggests that the General Assembly did not intend to implicitly preempt or occupy the entire field of short-term rental registration, but rather facilitate tourism through taxes and encourage it within the state. See § 42-63.1-1 (titled "Tourism and Development" is intended to "establish an operating program to promote and encourage tourism, to coordinate tourism activities within the state, and to establish a fund to promote and encourage tourism[.]").
Therefore, this Court asserts that § 42-63.1-14(b) should not be interpreted as preempting municipalities to impose additional registration requirements. Instead, this Court maintains that the absence of a complex regulatory scheme within the statute supports the notion that the General Assembly did not intend to implicitly govern short-term rental registration, and, in turn, left room for municipalities to enact supplementary registration requirements.
B
Vacation of the Municipal Court Order
Because this Court does not find § 42-63.1-14 to preempt Section 5.40.020 and the City's zoning ordinances, this Court finds it premature to vacate the Newport Municipal Court order at this time. However, this Court notes that the public law upon which this case was appealed, Public Laws 1987, Chapter 511, s 1, grants this Court jurisdiction to conduct a de novo trial; thus, the underlying judgment need not be vacated.
IV
Conclusion
For the reasons stated herein, this Court DENIES Defendant's Motion to Dismiss and Order to Vacate. Counsel shall submit the appropriate order for entry.