2011-163 Carmella Bucci v. Hurd Buick (full briefing)
The plaintiff appeals from summary judgment entered in the Superior Court in favor of defendant Hurd Pontiac GMC Truck, LLC, Hurd Pontiac GMC Truck, LLC, d/b/a Regine Pontiac GMC, and Hurd Chevrolet, Inc. The plaintiff alleged that she was fired because of her age and a perceived disability in violation of the Fair Employment Practices Act and, in retaliation for taking time off for cataract surgery and recuperation, invoking the Rhode Island Parental and Family Medical Leave Act. Plaintiff maintains that she met her burden of proving pretext.
2011-177 James Brown v. Elmer Stanley (show cause)
Plaintiff BlueLinx Corporation, Inc. appeals from an entry of summary judgment in favor of defendant Elmer Stanley. The plaintiffs sought contribution in this case from the defendants for damages the plaintiffs paid to Mary Cummings for her personal injuries when a truck owned by BlueLinx hit her. The plaintiffs allege that the defendants were negligent in supervising a charity walk. BlueLinx argues that summary judgment was not appropriate because the defendant was personally liable for his actions in working on behalf of defendant Project Hope at the charity walk.
2011-348 Gregory H. Andrews v. Beverly Plouff (show cause)
The defendant appeals from an order denying her motion to alter or amend the judgment in favor of the plaintiffs. The defendant contends that the plaintiffs were not entitled to an award of prejudgment interest in the case because they were only permitted reimbursement of their deposit in connection with the purchase and sale agreement between the parties.
2011-358 United Service and Allied Workers of R.I. v. State (show cause)
United Service and Allied Workers of R.I. filed a petition for the issuance of a writ of certiorari seeking review of the dismissal of its administrative appeal. The petitioner asserts that the hearing judge erred in calculating the time period for filing its administrative appeal in the Superior Court
2011-384 Donna Bainville v. Peter Brennan (full briefing)
Defendants appeal from a judgment in favor of plaintiff in this dispute over the location of the common boundary line between two lots in the town of Tiverton. The Superior Court, after a non-jury trial, ordered defendants to remove a building and to pay monetary damages to plaintiff. Defendant argues that the doctrine of acquiescence “trumps” the plaintiff’s surveyor’s division line, and that the damage award is therefore unwarranted. Alternatively, defendants contend the award is duplicative given the order to remove the building.
2011-163 Carmella Bucci v. Hurd Buick, et al. (full briefing)
The plaintiff appeals from summary judgment entered in the Superior Court in favor of defendant Hurd Pontiac GMC Truck, LLC, Hurd Pontiac GMC Truck, LLC, d/b/a Regine Pontiac GMC, and Hurd Chevrolet, Inc. The plaintiff alleged that she was fired because of her age and a perceived disability in violation of the Fair Employment Practices Act and, in retaliation for taking time off for cataract surgery and recuperation, invoking the Rhode Island Parental and Family Medical Leave Act. Plaintiff maintains that she met her burden of proving pretext.
2011-107 Charles Burns v. Moorland Farm Condo (full briefing)
2011-108
Defendant appeals from a judgment entered in favor of the plaintiffs, and proposed intervenors appeal from the denial of their motion to intervene. The Superior Court entered a declaratory judgment that declared that decks and pocket decks at the Moorland Farm Condominium were not common areas or limited common areas. The defendant was ordered to issue a reassessment of the $669,544.08 cost of the deck replacement to the individual unit owners whose decks and entry court areas received work. The defendant was also required to reimburse those unit owners who wrongfully paid the special assessments for the deck project. The defendant contends that the plaintiffs failed to name indispensable parties to this action by not joining a number of condominium unit owners, and that the trial judge erred in determining that the decks and pocket decks were not limited common areas. The defendant also argues that the trial judge erred in excluding certain evidence at trial, and further argues that the trial judge erred in denying the defendant’s motion for relief from judgment and in issuing Rule 11 sanctions against the defendant. The intervenors contend that they should have been permitted to intervene and that the declaratory judgment is void without their intervention.
2011-262 In re Estate of Anna Marie Picillo (full briefing)
Appellant appeals from the denial of his probate appeal. He contends that the Superior Court erred in making no findings that the formalities for execution of a will, as set forth in Rhode Island General Laws § 33-5-5 (2011), were followed during the execution of decedent Ann Marie Picillo’s will. He also asserts that the trial judge erred in finding that Ann was not subject to undue influence in the making of her will and additionally contends that Ann did not have the requisite testamentary capacity to execute her will.
2011-338 Steven Iadevaia v. Town of Scituate Zoning Board (full briefing)
The petitioner filed a petition for the issuance of a writ of certiorari seeking review of a Superior Court judgment denying his zoning appeal. The petitioner contends that the Superior Court erred in determining that he was not entitled to a dimensional variance because he created his own hardship. The petitioner asserts that his parcel has always had two lots and therefore he did not create his own hardship by subdividing his land into two lots. The petitioner also argues that the town of Scituate’s zoning ordinance does not have a minimum frontage requirement.
2011-397 Dawn Huntley v. State of Rhode Island (show cause)
The state filed a petition for the issuance of a writ of certiorari seeking review of the denial of its motion to dismiss or in the alternative a motion for summary judgment. The state contends that the hearing judge erred in ruling that the doctrine of res judicata did not bar plaintiff Dawn Huntley’s Superior Court discrimination action. The state asserts that the dismissal of the plaintiff’s federal action constituted a final judgment on the merits and barred the plaintiff’s subsequent suit in the Superior Court. The state also contends that the plaintiff’s amended complaint which included additional defendants did not relate back to the original complaint.
2011-312-A. Elizabeth Morel v. City of Providence (show cause)
The defendant appeals from a judgment in favor of the plaintiff, in this personal injury case. The defendant claims that medical affidavits submitted by the plaintiff failed to conform to statutory requirements. The defendant also argues that the trial justice erred in limiting the cross-examination of the plaintiff.
2011-324-A. Mortgage Electronic Registration Systems, Inc. v. Verissimo DePina (full briefing)
The defendant, Amy Realty, appeals from the entry of summary judgment in favor of the plaintiffs. The defendant claims that the trial justice erred in vacating the tax foreclosure decree in favor of Amy Realty, and in finding that the original and corrective tax sale deeds were null and void.
2011-350-A. Multistate Restoration v. DWS Properties (show cause)
Plaintiffs appeal from a final judgment for defendant having granted defendant’s motion to dismiss. Plaintiffs argued judge erred because she did not offer any reasons for dismissing unjust enrichment claim and there were genuine questions of material fact which precluded dismissal of their breach of contract claims and unjust enrichment claim.
2011-361-A. Lucilio Furtado v. Maria Goncalves (show cause)
Before the Court are two orders of the Superior Court in this probate appeal. The first granted defendants’ motion to enforce a mediated settlement agreement entered into between the parties and entered judgment in accordance with the terms of the agreement. The second granted defendants’ motion for the approval of attorneys’ fees, pursuant to Rhode Island General Laws § 9-1-45. Plaintiffs contend that the hearing justice committed reversible error when she granted both motions.
2011-379-A. Kimberly Lomastro v. Margaret Iacovelli (show cause)
The plaintiff appeals from the entry of summary judgment in favor of the defendants, officials in the town of Johnston, in this case involving a claim of wrongful termination. The plaintiff contends that the hearing judge erred in denying her oral motion to amend her complaint shortly before the judge granted summary judgment. Plaintiff suggests that her motion to amend should have been granted because the town would not have suffered extreme prejudice from the amendment. She also contends that there is a question of fact as to whether she was an at-will employee.
2011-62-M.P. Mary Rothemich v. St. Joseph’s Health Services (full briefing)
The petitioner seeks review of a decree of the Appellate Division of the Workers’ Compensation Court, denying her petition to continue her partial disability benefits under § 28-33-18.3(a)(1) or to declare her eligible for total disability benefits under § 28-33-17(b)(2). The petitioner argues that her personal profile should be considered in determining whether she is entitled to a continuation of benefits. She also claims that her “odd lot” petition should not have been dismissed on res judicata grounds.
2011-69-A. City of Newport v. Local 1080 Int’l Assoc. of Firefighters (show cause)
In this case before the Court by way of writ of certiorari the petitioner seeks review of a declaratory judgment that grievances submitted by Local 1080 on behalf of retired firefighters disputing changes to health insurance benefits are not arbitrable.
2011-81-M.P. State Dept. of Envtl. Mgmt. v. Admin. Adjudication Div. (show cause)
The case is before this Court on Daniel Barlow’s petition for certiorari seeking review of a Superior Court order which reversed the decision of the Administrative Adjudication Division (AAD) of the Rhode Island Department of Environmental Management (DEM). The AAD had ruled in favor of Barlow in deciding that he could not be barred from participating in a summer flounder commercial fishing program because his 2008 consent agreement with DEM did not constitute an administrative penalty. In reversing AAD the Superior Court ruled that the consent agreement was an administrative penalty. Barlow contends that the Superior Court erred in treating the consent agreement like a consent order. He also contends that he did not receive timely service of process and that he was never named in the caption for the case. He further contends that the requirements for the pilot program cannot retroactively apply to the consent agreement. In addition, he contends that barring him from the pilot program would constitute an excessive administrative penalty.
2011-129-A. Nellie Francis v. Dr. James Gallo (show cause)
This case is before the Court on appeal by the plaintiff from the grant of a motion for summary judgment in favor of the defendants, in a case in which plaintiff asserted that Dr. Gallo’s defamatory statement, given during a hearing before the Rhode Island Department of Education, caused her to lose her teaching position. On appeal, plaintiff asserts that the hearing justice erred in finding that the statements of Dr. Gallo were made in the context of a quasi-judicial proceeding, and therefore, privileged, and in granting summary judgment in favor of defendants.
2011-132-A. Frederick Carrozza v. Michael Voccola (full briefing)
The plaintiffs appeal from a Superior Court judgment in favor of the defendants, after a jury-waived trial regarding a claim of slander of title in this family dispute over four parcels of property. The trial justice awarded the defendants compensatory damages of $630,000, interest, expenses of $24,080, and attorney’s fees of $151,267, as well as punitive damages, against Frederick, Sr. only, of $845,000. Following the entry of judgment, the plaintiffs filed a motion for a new trial, which was denied. The plaintiffs filed an amended notice of appeal, in which they indicated that they were also appealing from the denial of their new trial motion.
2011-142-A. Cheryl Mead v. Sanofi-Aventis U.S. (show cause)
The plaintiff appeals from an order denying her motion for a new trial. The plaintiff was severely injured when she was hit by a vehicle while crossing Taunton Avenue in East Providence. The plaintiff contends that the hearing judge erred in denying her motion for a new trial because the evidence clearly preponderated against the jury verdict.
2011-167-A. Paul Oden v. Carl Schwartz (full briefing)
The defendant appeals from a jury verdict in favor of plaintiff in this medical malpractice case. The defendant’s share of the jury award is $375,000 plus interest. On appeal defendant challenges the trial judge’s decision not to instruct on intervening and superseding cause, the judge’s reference to defendant’s liability insurer during jury instructions and permitting evidence of plaintiff’s heart attack during the trial. Defendant argues the verdict is against the weight of the evidence. Defendant raises a constitutional challenge to the imposition of prejudgment interest under R.I.G.L. § 9-21-10.
2011-199-A. Maureen O’Connell v. William Walmsley (full briefing)
The plaintiffs appeal from a Superior Court judgment as a matter of law in favor of the defendant after a jury trial in this case arising from a tragic automobile accident that took place on the New London Turnpike in Coventry, Rhode Island on March 9, 2003. The plaintiffs claim that there was sufficient evidence to show that the defendant’s negligence was a proximate cause of the collision, asserting that two experts testified that the defendant’s speed was a contributing cause of the collision. In addition, the plaintiffs argue that evidence was introduced that the defendant had been drinking on the day of the accident, and that, because he was impaired when the collision occurred, he failed to take evasive action to avoid the accident.
2011-211-A. Ronald DeMaio v. Raymond Ciccone (show cause)
The plaintiffs appeal from an entry of summary judgment in favor of the defendants in this negligence action involving a collision between an automobile and a motorcycle. The plaintiffs contend that the hearing judge erred in granting summary judgment because there were material questions of fact as to whether the plaintiff actually struck defendant’s vehicle from behind. The plaintiffs also contend that there were questions of material fact as to whether defendant acted negligently.
2011-239-A. Mary Gentilli v. Woodland Manor Improv. Assoc. (full briefing)
Allen Shine, trustee of Woodland Manor Improvement Association and trustee of Woodland Sewer System Trust, appeals from an order dismissing this trusteeship action in the Superior Court.
2011-242-A. Jose Bustemante v. Hector Oshiro (full briefing)
2011-245-A.
The plaintiffs appeal from the entry of summary judgment in favor of the defendants. On appeal, plaintiffs contend that the hearing judge erred in deciding that their medical malpractice action was not timely under the statute of limitations based on the date of discovery that a tumor existed, rather than the date of discovery that the tumor was cancerous.
2011-270-A. Joseph Chen v. Subaru of America (show cause)
2011-271-A.
2011-272-A.
The plaintiff appeals from a judgment as a matter of law in favor of defendant Subaru on his consumer complaint. The defendant has also filed an appeal from the denial of its motion to dismiss and from a decision denying its motion for summary judgment.
2011-273-A. Amy Luyendyk v. Dr. Robert T. Rude (show cause)
The plaintiff appeals from the entry of summary judgment in favor of the defendants. The plaintiff contends that she suffered cognizable harm from Professor Rude’s failure to maintain a record of her work in his class. She argues that there are questions of fact precluding summary judgment on her claims of negligence and breach of contract. The plaintiff asserts that there are questions of fact on the issue of causation. The plaintiff further contends that the hearing judge erred in granting summary judgment on the defendants’ counterclaim for tuition allegedly owed by the plaintiff.
2011-276-A. Maria Carbone v. John Ward (show cause)
This case is before the Court on appeal by the plaintiff from a grant of summary judgment in favor of defendants, the finance director for the town of Lincoln, and the town of Lincoln. On appeal, plaintiff argues that the hearing justice erred in finding that she had provided insufficient notice of injury to the town of Lincoln pursuant to Rhode Island General Laws § 45-15-9.
2011-280-A. Drago Custom Interiors v. Carlisle Building Systems, Inc. (show cause)
The defendant, International Fidelity Insurance Company, appeals from a Superior Court judgment in favor of the plaintiff, in this arbitration case. On appeal, IFIC contends that the hearing justice had no authority to remand the case to the arbitrator for clarification of the award.
2011-284-A. Markel American Ins. Co. v. American Commerce Ins. Co. (full briefing)
The plaintiff appeals from a summary judgment for defendant in this dispute centered on interpretation of the “owned but not insured” exclusion.
2011-309-A. William Lamont Thomas v. Omar Proctor (show cause)
Plaintiff appeals from the denial of his motion for new trial after a jury verdict for the defendant. On appeal he argues that the trial justice erred when he restricting his closing argument on damages, and erred when he admitted a Known Persons Intelligence Report showing that he was charged with carrying a shotgun in 1992.
2011-312-A. Elizabeth Morel v. City of Providence (show cause)
The defendant appeals from a judgment in favor of the plaintiff, in this personal injury case. The defendant claims that medical affidavits submitted by the plaintiff failed to conform to statutory requirements. The defendant also argues that the trial justice erred in limiting the cross-examination of the plaintiff.
2011-313-A. Joyce Wheeler v. Encompass Insurance Co. (full briefing)
The plaintiff appeals from a Superior Court order granting in part and denying in part her petition to confirm an arbitration award. On appeal, the plaintiff claims that the hearing justice should not have disturbed the award of the arbitrators in this case and cites Sentry Insurance Co. v. Grenga, 556 A.2d 998 (R.I. 1989), in support of her argument that arbitrators may award prejudgment interest in excess of policy limits.
2011-9-A. John E. Robideau v. Marie Cosentino (show cause)
Attorney for the plaintiffs appeals from an order granting defendants’ motion for the imposition of sanctions and fees, pursuant to Rule 11 of the Superior Court Rules of Civil Procedure. On appeal, appellant argues that the trial justice erred when she admitted defendants’ attorneys’ billing slip during the evidentiary hearing to assess sanctions and fees, which appellant asserts is inadmissible hearsay evidence, and further, that the trial justice erred in not allowing appellant additional time to consider the exhibits and prepare a post-argument memorandum.
2011-105-A. Donald Panarello v. State (full briefing)
The plaintiff appeals from a judgment entered in favor of the defendants in this employment discrimination case. The plaintiff asserts in this action that the defendants wrongfully denied him a promotion based on the fact that he was away on military leave. The plaintiff contends that the trial judge used the wrong burden shifting standard of proof in denying his claim. The plaintiff also contends that the trial judge overlooked material evidence of discrimination committed by the Department of Corrections.
2011-123-A. Law Firm of Thomas A. Tarro III v. Maria Checrallah (show cause)
The defendant appeals from a Superior Court summary judgment in favor of the plaintiffs in this dispute involving attorney’s fees. The defendant claims that attorney Tarro is not entitled to collect fees on a settlement he did not negotiate, and if the plaintiffs were entitled to any fees, it would be under the theory of quantum meruit for work performed prior to being discharged.
2011-128-A. Johnston v. Int’l Brotherhood of Police Officers, Local 307 (show cause)
The appellant, Albert Faella, appeals from a Superior Court order denying his motion to intervene in this dispute regarding Mr. Faella’s disability pension benefits. The appellant’s pension was the subject of arbitration between the plaintiff and the defendant. The appellant contends he should have been allowed to intervene to prevent an injustice. He claims that the union failed to adequately represent his interests and that his motion to intervene was timely.
2011-130-A. Peloquin v. Haven Health Center (full briefing)
In this wrongful death action filed against the defendant nursing home and its professional liability insurer plaintiff seeks to recover damages for the untimely death of her mother, who was given a lethal dose of medication while a patient. The defendant nursing home is bankrupt and the insurance policy contains a self-insured retention (SIR) limit of two million dollars. Plaintiff makes numerous arguments, including that the SIR is void as against public policy and § 42-14.1-2(a), as to why defendant was not entitled to summary judgment.
2011-145-A. Cumberland Teachers’ Assoc. v. Cumberland School Comm. (show cause)
The plaintiff appeals from a Superior Court judgment in favor of the defendant, denying the plaintiff’s motion to vacate an arbitration award in favor of the defendant. This dispute involves the interpretation of a collective bargaining agreement and the manner in which a new salary structure should be implemented. The plaintiff claims that the arbitrator failed to properly conduct the analysis necessary to resolve the parties’ dispute.
2011-171-A. David Sullivan v. William Reilly (show cause)
Defendants appeal from the entry of summary judgment in favor of plaintiff in this collection action by the Rhode Island division of taxation for personal income taxes. Before this Court, defendants raise issues concerning the propriety of the collection efforts by the division, the timeliness of plaintiff’s claim, and the validity of the claim in light of defendants’ purported change of domicile in 1997.
2011-180-A. R.I. Mobile Sportsfisherman, Inc. v. Nope’s Island (full-briefing)
The defendant appeals from a judgment finding that plaintiff had rights to a prescriptive easement over defendant’s beachfront property to gain access to its own property. On appeal, defendant asserts that: (1) Rhode Island General Laws § 34-7-9 prohibits prescriptive easements on land held by nonprofit entities for conservation or open space; (2) plaintiff’s amended complaint does not relate back to its original complaint, and thus the plaintiff is estopped from claiming a prescriptive easement; (3) plaintiff failed to meet the “higher standard” of proof required to show a prescriptive easement on conservation land, and failed to prove that it actually used the land in question and that its use was open and notorious, hostile, under a claim of right, and continuous for the statutory ten-year period.
2011-20-A. Sophie F. Bronowiski Mulligan Trust v. Todd Bridges (show cause)
Before the Court is plaintiff’s appeal from a Superior Court judgment in favor of the plaintiff-landlord for $1,600 plus interest in this action involving the breach of a residential lease agreement. Before the Court for review are two aspects of the judgment in particular: (1) the amount of the damages award, and (2) the denial of an award of attorneys’ fees to plaintiff as the prevailing party pursuant to the terms of the lease.
2011-21-A., Craig Sacco v. Cranston School Dep’t (show cause)
2011-22-A.
The plaintiffs appeal from an entry of summary judgment in favor of the defendant. The plaintiffs argue that the clear terms of the Cranston teachers’ collective bargaining agreement (CBA) permitted them to file grievances when they were terminated from their coaching positions. They argue that any ambiguity in the CBA as to whether a grievance is permissible in this situation must be resolved in favor of finding that the grievance procedures are applicable.
2011-23-A. Dennis J. Nelson v. Deborah Centazzo (show cause)
The plaintiff appeals from the entry of judgment in favor of the defendant. The plaintiff has asserted that the defendant used undue influence in obtaining gifts from the decedent in this case. The plaintiff contends that the defendant waived all defenses in this action when she decided not to participate at trial. The plaintiff additionally contends that the trial judge erred in drawing evidentiary inferences in favor of the defendant and in overlooking evidence that the defendant misappropriated money from the decedent.
2011-24-A. Warwick Sewer Authority and City of Warwick v. Carlone (full briefing)
Defendant appeals from a final judgment on summary judgment in favor of plaintiffs in this action for declaratory judgment and to quiet title. Issue of whether the defendant maintained any property rights to a lot dedicated to the city in 1979 as part of developing a subdivision.
2011-33-A. Empire Fire and Marine v. Citizens Ins. Co. (show cause)
Defendant appeals from a Superior Court entry of summary declaratory judgment in favor of plaintiff. The Superior Court declared that defendant is required to reimburse plaintiff for attorneys’ fees incurred in defense of a civil suit resulting from an accident caused by a driver insured by defendant while operating a vehicle leased by the closely-held corporation of the insured. Plaintiff provided excess business liability coverage for the owner of the leased vehicle. This appeal presents the issues of which company is responsible for the defense of the lawsuit, which company is the primary insurer and which is the excess insurer, and whether the defense costs should be pro-rated in accordance with this Court’s decisions in Brown v. Travelers Insurance Company, 610 A.2d 127 (R.I. 1992), and Hindson v. Allstate Insurance Co., 694 A.2d 682 (R.I. 1997).
2011-85-A. Chariho Regional School District v. Deborah Gist (full briefing)
Plaintiffs, the Chariho Regional School District and the Cranston School Department, appeal from an order denying and dismissing the plaintiffs’ complaint, petitioning the court for a writ of mandamus. On appeal, plaintiffs argue that the hearing justice erred in denying their petition for a writ of mandamus in his findings: (1) that the Commissioner of Education’s decision to deny the plaintiffs reimbursement for certain employees’ salaries and benefits was discretionary in nature, and not merely ministerial; and (2) that the plaintiffs had an adequate remedy at law, and accordingly, mandamus did not lie.
2011-94-A. Habershaw v. Michaels Stores, Inc. (show cause)
The plaintiff appeals from a final judgment in favor of defendant Michaels Stores, Inc. in this slip-and-fall action. She argues that the trial court erred in deciding that she had no claim for negligence or breach of contract as a matter of law after she slipped and fell on a shiny floor.
2011-140-A. GSM Industrial, Inc. v. Grinnell (full briefing)
The issue before the Court in this expedited appeal is whether a notice of intention made pursuant to Rhode Island’s mechanics’ lien statute that does not contain language that the notice was executed under oath, as required by R.I. Gen. Laws § 34-28-4(b), deems the notice wholly lost and the resulting lien invalid and unenforceable under the statute.