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Rhode Island Judiciary > Courts > Supreme Court > Opinions > Opinions (2011-2012)  

 
Supreme Court
Published Opinions 2011 - 2012 Term
State v. John Kluth, No. 09-31 (July 13, 2012)
The defendant appealed from judgments of conviction based on a Superior Court jury’s finding of guilt on thirty counts of obtaining money by false pretenses.  On appeal, the defendant contended (1) that the then presiding justice of the Superior Court exceeded his authority in granting the prosecutor’s request to change venue; (2) that the charges filed against him were improperly joined as a matter of law, in view of the provisions of Rule 8(a) of the Superior Court Rules of Criminal Procedure; and (3) that, even if the charges had been properly joined, the trial justice’s failure to sever the cases infringed upon his right to a fair trial.

The Supreme Court held that, in light of the considerations of judicial economy and the significant resources demanded by the defendant’s trial, the then presiding justice’s ruling with respect to the motion to transfer constituted a sustainable exercise of his discretion. 

With respect to the defendant’s contention as to joinder, the Court stated that the offenses charged were of the same or similar character.  The Court therefore held that joinder was proper as a matter of law.  The Supreme Court further held that, due to the fact that the evidence of the other alleged crimes might well be admitted at separate trials and the fact that the allegations were nearly identical, the trial justice did not abuse her discretion in joining the criminal informations for trial. 

The Supreme Court held that the defendant had waived his contentions with respect to the issue of severance.

Accordingly, the Supreme Court affirmed the judgments of the Superior Court.
Mutual Development Corporation v. Ward Fisher & Company, LLP et al., No. 09-168 (July 13, 2012)
The plaintiff, Mutual Development Corporation, appealed from the Superior Court’s grant of summary judgment in favor of the defendants, Ward Fisher & Company, LLP and WF Realty & Investment, LLC.  On appeal, the plaintiff contended that the hearing justice improperly interpreted and applied subsection 6 of the Statute of Frauds, G.L. 1956 § 9-1-4, in deciding that said section could properly be invoked with respect to an alleged oral finder’s fee agreement between the plaintiff and the defendants, thereby barring recovery by the plaintiff.

The Supreme Court first addressed the plaintiff’s contention that the Statute of Frauds did not apply to a finder’s fee because of what the plaintiff contended was a “well-recognized distinction” between a broker and a finder.  After reviewing the cases relied upon by the plaintiff, the Court concluded that it is the nature of the transaction which is determinative as to whether subsection 6 of the Statute of Frauds applies, and not whether the person seeking the fee acted as a finder or a broker.

Next, the Court turned to the use of the word “commission” in the Statute of Frauds to determine whether that term encompassed both flat-sum commissions and percentage-based commissions.  The Court reviewed the definition of “commission” in several recognized dictionaries and determined that that term contemplated both types of payments.  Ultimately, the Court held that, in furtherance of the policy of the Statute of Frauds, any person who seeks to recover a flat-sum commission or a percentage-based commission upon the sale of any interest in real estate is required to comply with subsection 6 of the Statute of Frauds.

Accordingly, the Supreme Court affirmed the judgment of the Superior Court.
State v. James S. Richardson, No. 10-216 (July 12, 2012)
On November 14, 2008, a jury convicted the defendant, James S. Richardson, of one count of murder and one count of burglary.  The defendant was sentenced to life imprisonment without the possibility of parole.  The defendant appealed his conviction and asserted that the trial justice erred by: (1) allowing one of the state’s expert witnesses to bolster the credibility of another expert witness; (2) denying the defendant’s motion for judgment of acquittal; and (3) denying the defendant’s motion for a new trial.  The Supreme Court affirmed the judgment of the Superior Court in all respects.

The Court rejected the defendant’s assertion that the second expert witness’ testimony constituted impermissible bolstering.  The Court held that the substance of the second expert witness’ testimony was an opinion that was based on the objective scientific observations, facts, and figures contained in the first expert’s reports.  The second expert’s reliance on the objective measurements contained in the worksheets and reports distinguished his testimony from the kind of “subjective analysis” that the Court previously had held constituted bolstering. 

With respect to the denial of the motion for a new trial, the Court held that the trial justice performed an exhaustive review of the evidence presented at trial, and he conducted a thorough and proper analysis with respect to the defendant’s motion for a new trial in this matter.  Despite the defendant’s contention that the trial justice should not have found the state’s primary witnesses to be credible, the Court noted that it was clear that the trial justice considered the testimony of both witnesses and came to a different conclusion.  Therefore, the Court affirmed the trial justice’s ruling denying the defendant’s motion for a new trial.  Because the Court affirmed the Superior Court’s judgment with respect to the motion for a new trial, the Court did not reach a review of the motion for judgment of acquittal.

Accordingly, the Supreme Court affirmed the judgment of conviction.
State v. Julie Robat, No. 10-61 (July 12, 2012)
The defendant appealed from a judgment of conviction on one count of second-degree murder; the victim was the defendant’s newborn daughter.  On appeal, the defendant argued that the trial justice erred in failing to grant her motion for a judgment of acquittal and her later motion for a new trial because, according to the defendant, the state failed to provide legally sufficient evidence for a jury to find that she acted with malice in connection with the death of her baby.  The defendant further contended that the trial justice erred in failing to grant her motion for a new trial on other grounds—viz., what the defendant alleged were improper comments made by the prosecutor during her closing argument.

After thoroughly reviewing the record and the trial justice’s articulated reasoning in ruling on the motion for a new trial, the Supreme Court held that the trial justice did not overlook or misconceive material evidence in denying the defendant’s motion for a new trial.  Specifically, the Court concluded that there was sufficient evidence to support a finding that the defendant acted with malice in connection with the death of her baby.

In view of the fact that it had concluded that the trial justice did not err in denying that motion, the Court found it unnecessary to pass upon the motion for judgment of acquittal—since the latter motion is more demanding from a defendant’s perspective than is a motion for a new trial.

Lastly, the Court reviewed the defendant’s contention concerning the allegedly improper comments made by the prosecutor during her closing arguments.  The Court first stated that, in view of the facts of this case, the challenged statements did not constitute improper comments.  The Court further noted that, in any event, although defense counsel had made objections to the comments at issue, counsel neither moved to pass the case nor requested a cautionary instruction.  The Court reiterated its long-standing rule that such procedural steps must be taken in order to preserve for appeal an issue involving alleged impropriety in a closing argument.

Accordingly, the Supreme Court affirmed the judgment of conviction.
State v. Juan Diaz, No. 10-236 (July 12, 2012)
The defendant appealed from a judgment of conviction on one count of second-degree murder and one count of using a firearm while committing a crime of violence.  On appeal, the defendant contended that the trial justice erred in failing to grant his motion for judgment of acquittal on the second-degree murder charge; the basis for that contention was the defendant’s subordinate assertion that the state failed to provide legally sufficient evidence for a jury to find that he acted with malice in connection with the death of the victim.  The defendant additionally contended on appeal that the trial justice erred in omitting the phrase “criminal negligence” from his instruction to the jury concerning involuntary manslaughter and instead used “confusing language,” which made it difficult for the jury to distinguish the crime of involuntary manslaughter from the crime of murder in the second degree.

After thoroughly reviewing the record and viewing the evidence in the light most favorable to the prosecution, the Supreme Court concluded that there was sufficient evidence produced at trial to support a verdict of second-degree murder.  The Court therefore held that the trial justice did not err in denying the defendant’s motion for a judgment of acquittal as to the second-degree murder charge. 

Next, the Court reviewed the defendant’s contention that the trial justice erred in failing to include the term “criminal negligence” in the instruction concerning involuntary manslaughter.  The Court noted that the instructions that were given, when viewed as a whole, could have misled a jury composed of ordinary intelligent lay people to the prejudice of the defendant.  Therefore, the Court held that, in view of the facts of this case, the trial justice was required to instruct the jury as to the concept of criminal negligence.

Accordingly, the Supreme Court vacated the judgment of conviction and remanded the case to the Superior Court.
Eddy Guerrero v. State of Rhode Island, No. 10-429 (July 12, 2012)
The applicant appealed from the denial of his application for postconviction relief.  His sole contention on appeal was that the hearing justice erred in holding that his trial counsel provided effective assistance of counsel prior to and during the applicant’s plea.  Specifically, the applicant contended: (1) that his counsel failed to obtain an interpreter for him at the time of the hearing on his motion to suppress certain evidence and at the time of his eventual plea; (2) that, prior to his execution of the plea form, his counsel failed to properly explain to him the essential elements of the offense to which he ultimately pled nolo contendere; (3) that his trial counsel failed to meet with him in a setting conducive to meaningful attorney-client communications; (4) that, by not conducting a sufficient investigation, his counsel failed to properly prepare for the suppression hearing; and (5) that the hearing justice erred in failing to address the prejudice component of the analysis relative to ineffective assistance of counsel claims that is described in Strickland v. Washington, 466 U.S. 668 (1984).

The Supreme Court held that, based on the testimony of the postconviction relief witnesses and the credibility determinations made by the hearing justice, the hearing justice did not err in concluding that trial counsel, in choosing not to utilize the services of an interpreter, did not provide ineffective assistance of counsel.
With respect to the immigration consequences of the applicant’s plea, the Supreme Court further held that the hearing justice did not err in concluding that trial counsel was not ineffective given his finding that trial counsel adequately warned the applicant of the immigration consequences of his plea.  The Court additionally stated that the hearing justice did not err in finding that the applicant’s plea was intelligent.

Concerning the applicant’s contention as to trial counsel’s alleged failure to prepare, the Supreme Court held that, in view of the trial counsel’s thorough questioning and extensive argument at the suppression hearing, the hearing justice did not err in ruling that trial counsel was not ineffective.  The Supreme Court further held that, in light of the record of trial counsel’s substantive and confidential discussions with the applicant, the hearing justice did not err in concluding that trial counsel’s representation of the applicant was not ineffective with respect to the applicant’s “meaningful attorney-client communications” contention.

In view of the determination that trial counsel’s performance was within the range of competence demanded of attorneys in criminal cases, the Court stated that it did not need to address the second component of the Strickland analysis.

Accordingly, the Supreme Court affirmed the judgment of the Superior Court.
Sofya M. Zharkova v. Paul D. Gaudreau, No. 11-295 (July 11, 2012)
The plaintiff, Sofya M. Zharkova, appealed from a judgment of the Family Court dismissing her complaint for divorce from the defendant, Paul D. Gaudreau.  In her complaint, the plaintiff alleged that a common-law marriage had existed between the defendant and her.  At trial, after hearing testimony from the parties and from several other witnesses and after considering the exhibits in the record, the trial justice found that the plaintiff had failed to prove the existence of a common-law marriage by clear and convincing evidence; accordingly, he dismissed the plaintiff’s complaint.

On appeal, the plaintiff contended that the trial justice’s decision failed to do “substantial justice” between the parties and that the trial justice overlooked and/or misconceived relevant and material evidence or was otherwise “clearly wrong.”
 
The Supreme Court held that the trial justice did not clearly err in finding that there was no clear and convincing evidence of the intent of the parties to enter into a husband-wife relationship.  The Court further stated that, after considering all of the evidence as well as the trial justice’s credibility determinations, the trial justice did not err in finding that the plaintiff failed to prove by clear and convincing evidence that there was a general reputation in the community that the plaintiff and the defendant were husband and wife.  As a result, the Court held that the trial justice did not misconceive or overlook relevant evidence, nor was he clearly wrong when he found that the plaintiff failed to prove the existence of a common-law marriage between herself and the defendant.

Accordingly, the Supreme Court affirmed the judgment of the Family Court.
Reilly Electrical Contractors, Inc. d/b/a Relco, Inc. et al. v. State of Rhode Island Department of Labor and Training, through its director Adelita S. Orefice, No. 10-266 (July 6, 2012)
On October 27, 2005, Reilly Electrical Contractors, Inc. (Relco) and its employees (the petitioners) were cited by the Rhode Island Department of Labor and Training (DLT) for installing hollow PVC material without an electrician’s license in violation of G.L. 1956 § 5-6-2.  After two hearings before the Board of Examiners of Electricians (the board), the DLT upheld the citations. The petitioners appealed to the Superior Court, which affirmed the board’s findings, ruling that the PVC material was conduit pursuant to § 5-6-2, and therefore, an electrician’s license was required to install it. 

Before the Supreme Court, the petitioners argued that the work performed on the date of the violations was not electrical in nature, but rather “excavation and other preparatory work.”  The petitioners also argued that because the PVC material could not, by itself, conduct electricity, it was not conduit, and therefore, a licensed electrician was not needed for its installation. 

The Supreme Court determined that the PVC material being installed was to be used in the future to house and protect electrical conductors.  It distinguished the present matter from Unistrut Corp. v. State Department of Labor and Training, 922 A.2d 93 (R.I. 2007) by holding that the term conduit as used in § 5-6-2 possessed a specific definition, and that the PVC material handled by the petitioners was indeed conduit for the purpose of carrying electricity.  In so holding, the Supreme Court relied upon the National Electrical Code’s definition of PVC conduit as well as how the Code governed its use and installation.  The Court also relied on the testimony elicited before the board.  Finally, the Court concluded that a plain reading of the statute supported the findings of the board and the Superior Court.  

Accordingly, the Supreme Court affirmed the judgment of the Superior Court. 
State v. James Cook, No. 10-363 (July 6, 2012)
After a jury returned verdicts of guilty on twenty-two counts ranging from first-degree sexual assault to identity fraud, the defendant, James Cook, appealed.  The defendant contended (1) that the trial justice erred by denying his motions to pass the case after a witness testified that the defendant had been on probation, and (2) that the trial justice committed reversible error when he admitted instances of the defendant’s prior sexual misconduct into evidence because the evidence should have been excluded under Rule 403 of the Rhode Island Rules of Evidence and also because under Rule 404(b) it was not reasonably necessary for the state to prove its case.

The Supreme Court held that the trial justice did not abuse his discretion by declining to pass the case after testimony was given that the defendant had been on probation.  After considering all the circumstances surrounding the errant statement, including the trial justice’s cautionary instructions to the jury as well as his individual voir dire of each juror regarding the offending testimony, the Court concluded that the statement was not sufficiently prejudicial to prevent the jury from calmly and dispassionately weighing the evidence. 

The Supreme Court also held that the trial justice did not commit reversible error by admitting evidence of prior sexual misconduct committed by the defendant.  The Court first determined that the defendant’s right to appeal based on Rule 403 grounds had been waived because the defendant never sufficiently articulated to the trial justice any objection based on that rule.  However, in assuming that the objection was not waived, the Supreme Court held that, in comparison with the other, probably more inflammatory, evidence presented against the defendant at trial, the evidence of the defendant’s prior sexual misconduct, while prejudicial, was not unfairly prejudicial.  Finally, the Court held that the prior sexual-misconduct evidence was reasonably necessary under Rule 404(b) for the state to rebut the defense of consent, argued by the defendant at trial.
  
For these reasons, the Supreme Court affirmed the defendant’s convictions.
Roderick A. McGarry v. Marilyn Pielech et al., No. 10-386 (July 6, 2012)
This case came before the Supreme Court on March 6, 2012, on appeal by the plaintiff, Roderick A. McGarry (the plaintiff or McGarry), from a final judgment in favor of the defendant, the Cumberland School Department (the defendant or school department), granting the defendant’s posttrial motion for judgment as a matter of law pursuant to Rule 50 of the Superior Court Rules of Civil Procedure, concluding that the defendant had not discriminated against hiring the plaintiff on the basis of his age.  In February 2010, a jury trial commenced on the plaintiff’s claims of age discrimination and retaliation; the jury returned a verdict in the plaintiff’s favor.  However, the trial justice granted the defendant’s motion for judgment as a matter of law on both claims, and alternatively, granted the defendant’s motion for a new trial.  The plaintiff appealed and contended that the trial justice erred by ruling that an adverse inference resulting from the spoliation doctrine—without additional extrinsic evidence—cannot satisfy the plaintiff’s burden of proof, and that the trial justice’s decision in the alternative to grant defendant’s new-trial motion was in error.
 
The Supreme Court reversed in part and affirmed in part the judgment of the Superior Court.  The Court held that the trial justice erred when he determined that in addition to the adverse inference against the defendant resulting from missing interview sheets, the plaintiff had to offer additional corroborating evidence to sustain a jury verdict against the despoiler.  Accordingly, the Court reversed the trial justice’s grant of judgment as a matter of law.  The Court also held that the trial justice’s determination that the jury gave an inordinate amount of weight and credence to the missing interview sheets was not clearly wrong, and affirmed the granting of the defendant’s new-trial motion.
Fred M. Hazard et al. v. East Hills, Inc., No. 11-316 (July 6, 2012)
The plaintiff, Laurel Y. Hazard (the plaintiff), appeals from the grant of a motion for summary judgment in favor of the defendant, East Hills, Inc. (the defendant), declaring that the plaintiff was barred by the doctrine of laches from prosecuting a claim of ownership of an undeveloped eight-acre tract of land in South Kingstown, Rhode Island, and declaring that the defendant had established ownership of the lot by adverse possession and in accordance with the Rhode Island Marketable Record Title Act, G.L. 1956 chapter 13.1 of title 34.   On appeal, the plaintiff, who was pro se, asserted that the claim should not be barred by the doctrine of laches, that the defendant failed to satisfy the requisite elements of adverse possession of the subject property, and that a 1909 boundary agreement entered into by the defendant’s predecessor in interest was defective and was improperly relied upon by the special master as a title transaction for purposes of establishing marketable record title.  The Supreme Court affirmed the judgment of the Superior Court based on the equitable doctrine of laches.

The Court initially concluded that the trial justice did not err in confirming the report of the special master because the special master conducted his charge thoroughly and produced an eloquent and detailed report; thus, the Supreme Court affirmed the trial court’s confirmation of the special master’s report.  The Supreme Court then held that the plaintiff’s claim was barred by the equitable doctrine of laches because she had waited well over 100 years to bring her suit.  Moreover, the Supreme Court noted that the plaintiff failed to provide a fair explanation for such a protracted delay and the delay significantly prejudiced the defendant because, over the 100-year span of time, evidence was lost, witnesses died, and title to the parcels changed hands many times.  Based on the Court’s conclusion that the plaintiff’s claim was barred by laches, it declined to reach the issues of adverse possession or the applicability of the Marketable Record Title Act.
Beverly Haviland v. Ruth J. Simmons in her capacity as President of Brown University et al., No. 10-231, (July 6, 2012)
The defendant, Brown University (the defendant, Brown, or the University), appealed to the Supreme Court from a Superior Court judgment in favor of the plaintiff, Beverly Haviland (the plaintiff or Haviland), in her action for declaratory relief in this employment case.  The defendant contended that there existed no justiciable issue in this case because the plaintiff could not demonstrate an injury in fact, as she did not face any actual or imminent loss of employment.  The defendant also asserted that the trial justice erred in finding that there was an implied-in-fact contract between the plaintiff and Brown because there was insufficient evidence presented to establish an enforceable promise of de facto tenure.  The defendant further contended that no tenure-like standard of review applies to the plaintiff because only the Brown Corporation was vested with the authority to grant tenure and none of the University administrators who communicated with Haviland were vested with actual or apparent authority to provide the plaintiff with de facto tenure.  The Supreme Court affirmed the judgment of the Superior Court.

The Supreme Court held that the terms of the contract were contained in the several communications and letters exchanged between the parties and accepted by Haviland on November 19, 2000.  The contractual elements were satisfied, giving rise to an express employment contract between Haviland and Brown.  The Court held that the terms assented to were those contained in the November 8, 2000 letter, supplemented by the terms of the
October 18, 2000 letter (which were still operative according to the November 17, 2000 letter), but that the terms of the contract relating to contract renewal and reappointment were ambiguous because those terms were subject to more than one reasonable interpretation.  The Court construed the language concerning the reappointment standard against Brown, and it declared that Haviland’s reappointment is governed by the express terms set forth in the letter of October 18, 2000.

Finally, the Court held that the University was estopped from denying that its administrators had the authority to provide the plaintiff with employment security because the University failed to produce any probative evidence establishing that those officers lacked such authority.
State v. Kenneth Viveiros, No. 09-249 (July 6, 2012)
The defendant, Kenneth Viveiros (the defendant or Viveiros), came before the Supreme Court on appeal from a conviction on four counts of simple assault against three inmates at the Adult Correctional Institutions (ACI), occurring while the defendant was employed as a lieutenant at the ACI.  On appeal, the defendant asserted that the trial justice erred by: (1) denying the defendant’s motion to sever his trial from that of his codefendant, Captain Gualtar Botas (Botas); (2) granting the state’s motion in limine, precluding the testimony of inmate Sebastian Atryzek; (3) giving improper jury instructions; and (4) denying the defendant’s motion for a new trial based on the insufficiency of the evidence.  The Supreme Court affirmed Superior Court’s judgment of conviction in all respects.

The Supreme Court held that the trial justice did not abuse his discretion in denying the defendant’s motion to sever because the trial justice carefully assessed the potential for prejudice in joining the defendant’s case with the other defendants, severed out the party and claims he believed would create prejudice, and, for purposes of judicial economy, kept together the cases and claims that could be tried without prejudicing the defendant. 

With respect to the defendant’s second contention, the Supreme Court held that the trial justice did not err by granting the state’s motion in limine to preclude a defense witness from testifying.  The Court found that the proposed testimony constituted collateral extrinsic evidence intended to contradict that of another witness and was therefore inadmissible under Rule 608(b) of the Rhode Island Rules of Evidence.
 
The Supreme Court also held that the defendant could not raise an objection to the jury instructions on appeal because the defendant failed to make the objection at the time of trial.  Based on the Court’s “raise-or-waive” rule, the defendant’s argument that the jury instructions were improper was waived.  The Court noted that although the defendant was precluded from arguing improper instructions because he had failed to raise the matter below, the Court was satisfied that the instructions were in fact proper and adequately covered the law.

Finally, the Supreme Court declined to disturb the trial justice’s denial of the defendant’s motion for a new trial because there was no evidence that the trial justice overlooked or misconceived any material evidence or that he was clearly wrong.  The trial justice engaged in a comprehensive and proper analysis of the evidence presented; he reviewed the testimony from both sides and independently assessed the credibility of the witnesses.  The Court held that the trial justice properly denied the motion for a new trial after concluding that the case was one where reasonable minds could differ.
State v. Michael Ciresi, Nos. 10-253, 10-254 (July 5, 2012)
Before the Court was the appeal of the defendant, Michael Ciresi (Ciresi), a former North Providence police officer and narcotics detective.  After the Pawtucket Police Department discovered Ciresi’s potential involvement in a 2004 Pawtucket burglary, further probing exposed a string of disreputable and illegal endeavors undertaken by Ciresi with the help of a number of criminal “informants,” who later cooperated in a wide-scale investigation by the state police into Ciresi’s activities.  Ultimately, Ciresi was charged with ten counts by two separate indictments, ranging from burglary to the receipt of stolen goods.

Prior to trial, the state moved for joinder of the two indictments against Ciresi, which motion the trial justice granted based on what he perceived as a common plan or scheme by Ciresi to cultivate and corrupt criminal informants for his personal gain in his role as a police officer.  The trial justice subsequently considered, and denied, Ciresi’s motion to sever the indictments.  Before trial, the state also moved to admit numerous instances of Ciresi’s prior uncharged misconduct under Rule 404(b) of the Rhode Island Rules of Evidence.  Viewing the evidence as indicative of Ciresi’s common plan of using criminals for his own benefit, the trial justice preliminarily granted the state’s motion relative to the evidence at issue in this appeal.  After a lengthy jury trial, during which the state presented over two dozen witnesses, including several criminals, to support its case, the jury returned a verdict of guilty on all counts, with the exception of one. 

On appeal, Ciresi contended that the trial justice abused his discretion by admitting thirty-seven pieces of evidence of Ciresi’s uncharged misconduct through the testimony of criminals with whom Ciresi was alleged to have affiliated because, in his view, the testimony constituted improper propensity evidence that should have been excluded under Rule 404(b).  Ciresi also challenged the trial justice’s joinder of the indictments for a consolidated trial, and subsequent refusal to sever the indictments—specifically, Ciresi averred that as a matter of law, the indictments could not be joined because the dissimilar charges were not part and parcel of a common scheme or plan.  He likewise maintained that the consolidation of the indictments created substantial prejudice that, as a result, impinged his constitutional right to a fair trial.

After carefully reviewing the record in this case, the Supreme Court concluded that Ciresi failed to preserve the majority of his evidentiary objections for appeal.  In regard to those that were preserved, the Court held that the trial justice did not abuse his discretion by admitting the instances of uncharged misconduct because the evidence fell within the exception in Rule 404(b) for proof of motive, intent or common plan.  The Court likewise upheld the trial justice’s joinder of the indictments, as well as his denial of Ciresi’s motion to sever.

Accordingly, the Supreme Court affirmed the judgments of the Superior Court.
Jessup & Conroy, P.C. v. Mary Y. Seguin, No. 10-264 (July 5, 2012)
Before the Court was the appeal of the pro se defendant, Mary Y. Seguin (Seguin), challenging a Superior Court justice’s grant of summary judgment in favor of the plaintiff, Jessup & Conroy, P.C. (the law firm), on Seguin’s counterclaim in this collection action.  A motion justice of the Superior Court determined that Seguin had not submitted any competent evidence to show a disputed issue of material fact and that she had therefore failed to sustain her burden in opposing the motion.  On appeal, Seguin maintained that genuine issues of material fact existed as to each of her fifteen counts of her counterclaim against the law firm, which included claims of deceptive trade practices, RICO violations, negligence, and fraud, among others.  Seguin also contended that she did not receive a fair hearing on her opposition in the lower court.

After a de novo review of the motion justice’s grant of summary judgment, the Supreme Court held that, despite the voluminous materials presented by Seguin in connection with her opposition, she had failed to submit any competent evidence from which the Court could discern a genuine issue of material fact.  The Court also concluded that Seguin received a full and fair hearing on her opposition.  Based on Seguin’s failure to sustain her burden as a nonmoving party opposing a motion for summary judgment, the Supreme Court affirmed the judgment of the Superior Court.
Allen J. Drescher, as Trustee of Little Compton Realty Trust v. Sigurd W. Johannessen, No. 10-269 (July 5, 2012)
The plaintiff, Allen J. Drescher (Drescher), appealed from a judgment of the Superior Court declaring that he had not acquired a prescriptive easement over a right-of-way owned by the defendant, Sigurd W. Johannessen (Johannessen), and that the right-of-way at issue was not a dedicated public road.  On appeal, Drescher maintained that the evidence adduced at trial clearly and convincingly proved his prescriptive use over the right-of-way.  Specifically, he challenged the trial justice’s determinations that his use of the right-of-way was not open, notorious, hostile, or under claim of right for a continuous period of ten years.  Drescher likewise contended that the trial justice erred in his conclusion that the right-of-way was not a public road.  Relying on subdivision plans depicting the right-of-way, as well as trial testimony about its local use, Drescher asserted that the necessary dedicatory intent and public acceptance to establish a public road was proved at trial.

The Supreme Court affirmed the Superior Court’s judgment in favor of Johannessen.  Affording the requisite deference to the trial justice’s findings of fact, the Court concluded that Drescher had failed to prove each element of a prescriptive easement by clear and convincing evidence.  The Court likewise found no error in the trial justice’s determination that the right-of-way was not a public road because Drescher failed to establish that Johannessen’s predecessor-in-interest intended to dedicate the right-of-way and that the right-of-way was accepted by the public for public use.
Joseph Iozzi et al. v. City of Cranston et al., Nos. 10-87, 10-112, 10-113 (July 5, 2012)
Several days of intense rainfall in October 2005 overloaded the sewer system servicing the plaintiffs’ Cranston home, causing water and sewage to back up and enter the plaintiffs’ basement through a toilet, resulting in extensive damage to their home and personal property.

The plaintiffs filed suit against the city and the companies responsible for operating and maintaining the sewage disposal system (the operating companies), alleging negligence.  The plaintiffs also sued their homeowner’s insurance carrier (insurance carrier) for denying their claim of coverage under their homeowner’s insurance policy.  After summary judgments were granted in favor of the operating companies and the insurance carrier in the Superior Court for Providence County, the plaintiffs appealed.  The Supreme Court consolidated these separate appeals on April 10, 2012. 
 
On appeal, the plaintiffs alleged that the judgments in favor of the various defendants were improper because of the existence of several genuine issues of material fact.  Concerning the appeal involving the operating companies, the Supreme Court held that, because the plaintiffs failed to file a notice of appeal within twenty days from the date that final judgment was entered pursuant to Article I, Rule 4 of the Supreme Court Rules of Appellate Procedure, their appeal was untimely and not properly before the Court. 

Regarding the plaintiffs’ appeal from the judgment in favor of the insurance carrier, after first determining that the homeowner’s insurance policy was clear and unambiguous, the Supreme Court held that the policy excluded coverage for water damage caused from water or sewage that backed up from sewers.  The plaintiffs also argued in their appeal that a remaining issue of material fact existed about whether the property damage to their home was the result of an act of God or human negligence.  However, the Supreme Court held that this argument was waived because it was never raised in the prior proceedings. 
  
Accordingly, the Supreme Court affirmed the judgments of the Superior Court.
Robert I. Burke et al. v. Katherine Gregg et al., No. 11-148 (July 5, 2012)
This controversy surrounds a newspaper article written by co-defendant Katherine Gregg that sparked an acrimonious on-air rant by the co-defendant Dan Yorke, a well-known radio talk show host, about the plaintiff Robert I. Burke, a local restaurateur and community activist.  The article described an annual St. Patrick’s Day lunch hosted by William Murphy, the then-Speaker of the House of Representatives of the Rhode Island General Assembly, at one of Burke’s restaurants.  The lunch, a private event, was in large measure a “roast” of local public figures.  In a story published by the Providence Journal, Gregg was openly critical of an “off the record” rule that banned reporters from disclosing the jokes made during the lunch.  Her article attributed the creation and enforcement of the policy to both Burke and Murphy.  The same day that Gregg published her story, Yorke referred to the article on the air and—apparently incensed by its contents—used his talk show as a platform to hurl a series of crude and disparaging remarks at Burke from the safety of his microphone.
 
Burke, along with BOEA, Inc., and Food & Beverage Corporation, filed a complaint in the Providence County Superior Court, alleging various counts of defamation and breach of contract against Gregg, the Providence Journal Company, Yorke, and Citadel Broadcasting Corporation.  All the defendants filed motions to dismiss the complaint.  After considering the arguments of the parties, a justice of the Superior Court granted the defendants’ motions to dismiss, finding that Gregg’s article—even if false or inaccurate—was nondefamatory, and that Yorke’s on-air comments were protected because, no matter how repugnant or derogatory, they were statements of opinion based on disclosed, nondefamatory facts.  The plaintiffs timely appealed from that decision.

The Supreme Court held that when Gregg’s article was considered in its totality from the point of view of an ordinary reader, its inaccurate attribution of the “off the record” rule to Burke was not defamatory because the comments could not reasonably be interpreted to have injuriously affected Burke’s reputation, degraded him in society, or brought him into public hatred and contempt.  On the contrary, the Court held that the article openly suggested that Burke and Murphy had a prudent, thoughtful, and logical reason for imposing an “off the record” rule, even if it was overtly critical of “press bans” per se.  Furthermore, the Court agreed with the motion justice that Yorke’s scurrilous remarks were expressed in the form of an opinion, and that he based his opinion on disclosed, nondefamatory facts:  Gregg’s article, which he referenced on the air.
 
The Court also held, however, that the motion justice did not definitively rule on the plaintiffs’ breach-of-contract claim against Citadel, and remanded this matter to the Superior Court for a hearing with respect to that count.
David M. Sullivan, Tax Administrator for the State of Rhode Island Division of Taxation v. William J. Reilly et al., No. 11-171 (July 5, 2012)
The plaintiff, the Rhode Island Tax Administrator, filed this collection action against the defendants, William J. and Marielle Reilly, in pursuit of more than $1 million in assessed, but unpaid, personal income taxes from the late 1990s.  In their answer to the plaintiff’s complaint, the defendants denied that they owed any personal income taxes for the assessed years.  Eventually, the plaintiff filed a motion for summary judgment, which was granted by a justice of the Superior Court.  The defendants timely appealed, arguing that the motion justice erred because (1) the defendants were nonresidents that were not subject to Rhode Island income tax; (2) the period of limitation for filing a tax-collection-action had expired; and (3) the equitable doctrine of laches should bar the tax administrator’s suit under these circumstances.
  
The Supreme Court held that the motion justice did not err when he granted summary judgment to the plaintiff.  The Court held that the defendants were not entitled to judicial review of the tax administrator’s assessment of taxes for the contested tax years because they failed to exhaust their administrative remedies.  Taxpayers that wish to contest a tax assessment must follow the statutory scheme; they cannot simply wait to be sued by the tax administrator in a collection action and object for the first time in their answer to the complaint.  The Court also held that the defendants had waived any argument with respect to the statute of limitations or laches.
  
Accordingly, the Court affirmed the judgment of the Superior Court.  
GSM Industrial, Inc. v. Grinnell Fire Protection Systems Company, Inc., et al., No. 11-140 (July 5, 2012)
This matter involved a dispute arising under the Rhode Island mechanic’s-lien statute.  The plaintiff, GSM Industrial, Inc., was a subcontractor that entered into an agreement with AirPol, Inc., a general contractor, to install an air-pollution-control mechanism on property owned by the defendant, Grinnell Fire Protection Systems, Inc.  When AirPol failed to pay GSM the balance of its fee, GSM filed a complaint to enforce a mechanic’s lien against Grinnell. In an attempt to comply with the complicated statutory scheme set forth in G.L. 1956 § 34-28-4, GSM executed a notice of intention to execute a mechanic’s lien.  GSM’s president signed the notice, which was “acknowledged” by a Pennslyvannia notary public.  The statute requires that the notice be executed “under oath.”  Eventually, Grinnell challenged the sufficiency of the notice of intention, alleging that the notary’s acknowledgement did not satisfy the “under oath” requirement, which rendered the lien “void and wholly lost” under the statute.  A justice of the Superior Court agreed, finding that a notarial acknowledgment was distinctly different from an oath, and that the notice was fatally defective. 

GSM appealed, arguing that the notice was valid because the statute does not require the “magic words” signed and sworn, and that a notarial acknowledgment was sufficient to satisfy the oath requirement.  GSM also contended that, even if it did not strictly comply with the statute, the oath requirement was directory rather than mandatory.  Further, GSM argued that it would “defy common sense” to dismiss the complaint when it could be amended without difficulty and did not result in prejudice to the defendants. 

The Supreme Court held that the acknowledgement of GSM’s notice of intention did not satisfy the statutory scheme.  The Court held that an “acknowledgement” is a formal declaration before a public officer by someone who signs a document that confirms that the signature is authentic and is his or her free act and deed. It is a verification of the fact of execution, not of the content of the document.  An oath, on the other hand, militates against meritless claims, frivolous misrepresentations, or vexatious assertions by ensuring that the declarant may be subject to legal penalties for false statements.  Furthermore, the Court held that the oath requirement was mandatory rather than directory because its language was unambiguous, unequivocal, and expressly incorporated by reference into § 34-28-4(a).
 
Accordingly, the Court affirmed the judgment of the Superior Court. 
State v. Raymond McWilliams, Nos. 09-379, 10-148 (July 5, 2012)
This case came before the Supreme Court on appeal by the defendant, Raymond McWilliams, from a judgment of conviction for first-degree robbery and assault with a dangerous weapon in a dwelling.  On appeal, the defendant contended that the trial justice erred by: (1) providing a supplemental jury instruction that contradicted Rhode Island law; (2) refusing to recuse from presiding as the trial justice because of comments he had made during a joint probation-violation hearing and bail hearing; (3) admitting into evidence the defendant’s prior conviction for second-degree murder; (4) denying his motion for acquittal; and (5) denying his motion for a new trial.
 
The Supreme Court held that the trial justice did not err in his supplemental instruction to the jury because it adequately covered Rhode Island law and it was clearly consistent with the law of other common-law jurisdictions that had explicitly interpreted the felonious intent to steal.  Because the defendant’s appeal based on a motion for a new trial and a motion for a judgment of acquittal necessarily turned on whether the Court held that there was error in the supplemental jury instruction, the Court did not address those contentions after concluding that the trial justice did not err.

The Court also rejected the defendant’s contention that comments made by the trial justice at the joint probation-violation and bail hearing warranted his recusal from presiding at the trial.  First, the Court explained that the justice made the challenged comments at the close of all the evidence after he fairly conducted a joint probation-violation and bail hearing.  Second, the Court noted that the defendant failed to bring to the Court’s attention even one incident that occurred during trial that demonstrated any prejudice the trial justice harbored toward him.
 
Lastly, the Supreme Court held that the trial justice did not abuse his discretion when he allowed one of the defendant’s numerous convictions into evidence for the purpose of impeaching the defendant should he testify at trial.  The Court concluded that a review of the cautionary instructions provided by the trial justice demonstrated that he adequately delineated the limited purpose for which the evidence was admitted; and, therefore, the Court held that he did not abuse his discretion.

Accordingly, the Supreme Court affirmed the judgment of conviction.
John J. Tworog v. Dolores M. Tworog, Nos. 09-307, 11-95 (July 2, 2012)
Before the Court were two consolidated matters pertaining to the divorce between the plaintiff, John J. Tworog (John), and the defendant, Dolores M. Tworog (Dolores).  John appealed from two Family Court orders that (1) denied his motion to reopen the final judgment of divorce and (2) found him in contempt of court for not complying with the final judgment. 

A final judgment of divorce permitted John to temporarily maintain possession of the marital home, but it also required him to be solely responsible for making the mortgage payments and paying the other household bills.  After final judgment was entered, Dolores sought relief because John had failed to stay current on the mortgages and other bills.  In response, John filed a motion to reopen the final judgment, alleging prior misrepresentation and/or fraud by Dolores.  A Family Court hearing justice denied John’s motion to reopen and later found him in contempt.
 
The Supreme Court held that the Family Court justice did not abuse his discretion in denying John’s motion to reopen the final judgment because the hearing justice found that John neglected to propound any discovery about Dolores’s finances or to provide any evidence supporting fraud or misrepresentation.  As to the contempt issue, the Court held that the record adequately supported the hearing justice’s finding of contempt, noting the hearing justice’s finding that John failed to make any payments toward the mortgages.

Accordingly, the Supreme Court affirmed the orders of the Family Court.
Cumberland Teachers Association v. Cumberland School Committee, No. 11-145 (June 29, 2012)
The Cumberland Teachers Association (union), appealed to the Supreme Court from the entry of judgment confirming an arbitrator’s award in favor of the Cumberland School Committee (school committee).  Before the Court, the union argued that the arbitrator manifestly disregarded a contract provision when he found that there was no written agreement about how the new salary schedule would be implemented for the 2007-2008 year.  The school committee responded by relying on this Court’s exceptionally limited standard of review with respect to arbitration awards.  The school committee also contended that there was no support for the union’s position that there was a mutually “agreed-upon” transition plan. 
 
The Court reviewed the arbitrator’s analysis of the proposals of the parties as they struggled to articulate how the salary steps should be condensed from twelve steps to ten steps.  The Court noted that the arbitrator painstakingly analyzed the various proposals of the parties as they struggled to articulate how to structure their agreement that twelve incremental salary steps could be condensed to ten in an efficient manner.  In the end, the arbitrator concluded that the school committee’s position best expressed the intent of the contracting parties and was more in keeping with their mutual understanding about the overall costs of the CBA.

Therefore, based on the exceptionally deferential standard of review, the Court held that the arbitrator’s award “drew its essence” from the contract and was based on a “passably plausible” interpretation of the contract. Accordingly, the Court affirmed the judgment of the Superior Court.
In re Estate of Aram Dermanouelian, No. 11-195 (June 29, 2012)
The appellant, the Estate of Aram Dermanouelian (the Estate), appealed from a judgment of the Superior Court granting the “Motion for Summary Reversal,” which had been filed by the appellee, Co-Executor Jo-Ann Dermanouelian.  The effect of the Superior Court’s ruling was to reverse an order of the Probate Court of the Town of Jamestown.  The Probate Court’s order that was reversed had granted a “Motion to Strike” filed by the Estate; the target of that motion to strike was the entry of appearance of an attorney whom Ms. Dermanouelian had engaged to represent her in her capacity as a co-executor. 

The Supreme Court held that a co-executor may individually engage counsel at any time in his or her capacity as a co-executor, at least when the attorney is engaged at the co-executor’s expense. Specifically, the Court stated that, in view of a co-executor’s role as a fiduciary and the personal nature of the attorney-client relationship, it is essential that he or she have the right to select an attorney who is to assist him or her in the performance of the duties imposed on a co-executor by law.  The Court held that, in light of the facts of the case at bar, it was appropriate that the appellee had engaged her own counsel to represent her in her capacity as a co-executor.

Accordingly, the Supreme Court affirmed the judgment of the Superior Court.
Charles Takian et al. v. Ralph Rafaelian et al. v. Charles Takian et al., No. 10-372 (June 29, 2012)
The defendants, Ralph and Lucia Rafaelian, appeal from a Superior Court ruling granting summary judgment in favor of the plaintiffs, Charles, Marguerite, and Randolph Takian.  The dispute centers on the plaintiffs’ management of property that the parties purchased together in South Kingstown, Rhode Island, and a business—Lumar Realty Corporation—formed to manage that property.  Succinctly stated, over time the relationship between the parties had become acrimonious, and the defendants sold their interest in the property to the plaintiff Randolph Takian.  Contemporaneous with the sale, all the parties executed a release absolving the plaintiffs from “any and all claims arising out of the ownership of the property and operation of the business.” After the sale, the defendants persisted in their investigation of the plaintiffs’ management of the property and believed they uncovered facts suggesting to them that the plaintiffs committed misdeeds far more serious that mere mismanagement.

In a preemptive strike, the plaintiffs filed a complaint for declaratory relief seeking a judgment that the release barred any further claims by the defendants. The defendants counterclaimed, both on behalf of themselves and on behalf of the corporation, alleging a torrent of claims including embezzlement, misrepresentation, misappropriation, and loss of corporate opportunity.  A justice of the Superior Court granted summary judgment in favor of the plaintiffs after he found that the release was both valid and effective against both the defendants and the corporation.

On appeal, the defendants argue that the motion justice erred when he granted summary judgment on their direct claims because he made impermissible findings of fact with respect to issues that genuinely were disputed by the parties, such as the defendants’ knowledge about the scope of the plaintiffs’ misconduct, the defendants’ knowledge that the property’s tenants were willing to negotiate a sale of the property, and that the defendants were “sophisticated” businesspeople.  With respect to their derivative claims, the defendants argue that the motion justice erred because Lumar was not referred to in the release agreement, and that the reinstatement of Lumar’s revoked certificate of incorporation had the effect of giving the corporation standing to sue for wrongs committed during the period of revocation.
 
The Supreme Court affirmed in part and vacated in part the judgment of the Superior Court.  The Court affirmed the motion justice’s ruling that granted summary judgment to the plaintiffs on the defendants’ derivative counterclaims because it was undisputed that the defendants were not shareholders of Lumar at the time of the alleged wrongdoing; therefore, they had no standing to complain according to the contemporaneous shareholder rule. In addition, the Court affirmed the motion justice’s ruling that dismissed the defendants’ counterclaims for negligent misrepresentation, fraudulent inducement, loss of business opportunity, and breach of the duty of good faith, and fraudulent inducement to sell an interest in real estate against Randolph Takian. However, with respect to the defendants’ personal counterclaims against Charles and Marguerite Takian, the Court held that there were genuinely disputed issues of material fact that should have precluded summary judgment. Furthermore, the Court remanded the plaintiffs’ counterclaims for abuse of process, violation of the Rhode Island RICO Act, and conspiracy to violate the RICO act to the Superior Court. 

Accordingly, the Court affirmed in part and vacated in part the judgment of the Superior Court, and remanded the case for further proceedings.
David Higham v. State of Rhode Island, No. 11-87 (June 28, 2012)
The applicant, David Higham, appealed from a judgment of the Superior Court denying his second application for postconviction relief.  On appeal, Higham argued (1) that he was entitled to be represented by counsel at his second postconviction-relief proceeding, (2) that the hearing justice erred when he refused to review the denial of parole by the parole board in the context of a postconviction-relief proceeding, and (3) that the hearing justice erred when he found that consideration of the allegations of “actual innocence” and “jury taint” were barred by res judicata. 

After reviewing the record, the Supreme Court determined that Higham’s argument that he was entitled to counsel at his second postconviction-relief proceeding was without merit because the hearing justice had allowed the applicant to proceed pro se in accordance with motions he himself had filed and because he failed to alert the justice at any time during the hearing that he desired to be represented by counsel. 
Philip Pelletier et al. v. Aphrodite Laureanno, No. 10-203 (June 27, 2012)
The plaintiffs, Philip and Eileen Pelletier (the Pelletiers), appealed from a judgment of the Superior Court entered in favor of their neighbor, Aphrodite Laureanno (Laureanno), dismissing the Pelletiers’ complaint for injunctive relief and monetary damages.  The Pelletiers believed that a written and recorded agreement, entered into by the Pelletiers and Laureanno’s predecessor-in-interest, created a permanent easement for parking on a small portion of Laureanno’s adjacent property. After a trial on the merits, the trial justice concluded that the written agreement at issue did not grant an easement to the Pelletiers, but instead served merely as a revocable license. 

On appeal, the Pelletiers maintained that the trial justice erred in his determination that the written agreement at issue was clearly and unambiguously personal in nature, and did not create a permanent easement.  The Pelletiers also argued that the trial justice erred by considering the absence of “words of inheritance” within the agreement as a dispositive factor in his analysis.  Additionally, the Pelletiers challenged the trial justice’s credibility determinations concerning the testimony of Eileen Pelletier, the only signatory to the driveway agreement to testify at trial.

Upon a de novo review of the instrument at issue, the Supreme Court held that the document was clear and unambiguous, and did not convey an easement, as purported by the Pelletiers.  Rather, the Court concluded that the agreement was personal and permissive in nature, thus constituting a license.  The Court also determined that the trial justice did not consider the document’s lack of binding language in a dispositive fashion, but instead viewed that deficiency as one of several factors in his analysis.  Lastly, the Court held that, even if the agreement was ambiguous, the trial justice’s rejection of Eileen Pelletier’s testimony on credibility grounds was not error.

Accordingly, the Court affirmed the judgment of the Superior Court.
Randy Anderson v. State of Rhode Island, No. 10-218 (June 27, 2012)
The applicant, Randy Anderson (Anderson), appealed from a judgment of the Superior Court dismissing his application for postconviction relief.  On appeal, Anderson contended that the hearing justice erred (1) by deeming his claim of prosecutorial misconduct to be procedurally barred; (2) by finding no discovery violation on the part of the state for failing to produce certain medical records; and (3) by determining that the medical records would have been of little or no value to the jury in the context of Anderson’s trial.  In countering, the state maintained that Anderson’s prosecutorial-misconduct claim was procedurally barred under the doctrine of res judicata as codified in G.L. 1956 § 10-9.1-8 of Rhode Island’s Postconviction Remedy Statute.

After reviewing the record, the Supreme Court concluded that Anderson’s allegation of prosecutorial misconduct was indeed barred as a matter of law because he could have, and should have, set forth the claim in his prior application for postconviction relief.   Accordingly, the Court affirmed the judgment of the Superior Court.
 
Butterfly Realty et al. v. James Romanella & Sons, Inc., No. 11-120 (June 27, 2012)
The plaintiffs, Butterfly Realty and Dairyland, Inc., appealed from a judgment entered against them on their claims for a prescriptive easement on the property of the defendant, James Romanella & Sons, Inc.  According to the plaintiffs, the alleged prescriptive easement was necessary to allow for large commercial vehicles to gain access to a loading dock located in the rear of the plaintiffs’ commercial building.  On appeal, the plaintiffs argued that the trial justice erred in finding that the hostility required for a prescriptive easement was not shown.  The plaintiffs further contended that the trial justice misconstrued evidence in finding that the prescriptive use of the disputed area was not continuous.
 
The Supreme Court vacated the judgment of the Superior Court.  The Court held that the trial justice misapplied the law as to whether the plaintiffs’ use of the disputed land was sufficiently hostile.  The Court held that, to show sufficient hostility for a prescriptive easement, a claimant must, by clear and convincing evidence, demonstrate evidence of objective trespassory acts that are adverse to the rights of the true owner.  The Court also directed the trial court to further examine the issue of whether the use was continuous and whether the plaintiffs’ tenants’ use may be considered for the purpose of establishing a prescriptive easement. 
   
Accordingly, the Supreme Court vacated the judgment of the Superior Court and remanded the case for further proceedings.
Sherry Almonte et al. v. Rita S. Kurl, M.D. et al., No. 10-315 (June 26, 2012)
The plaintiffs appealed from the Superior Court’s grant of the defendants’ motion for judgment as a matter of law and its denial of the plaintiffs’ motion for a new trial.  On appeal, the plaintiffs alleged that the trial justice erred (1) in granting the defendants’ motion for judgment as a matter of law pursuant to Rule 50 of the Superior Court Rules of Civil Procedure; (2) in refusing to give a jury instruction on the doctrine of spoliation; (3) in refusing the plaintiffs’ request that she recognize an evidentiary presumption with respect to the issue of causation; and (4) in denying the plaintiffs’ motion for a new trial pursuant to Rule 59 of the Superior Court Rules of Civil Procedure.

The Supreme Court upheld the trial justice’s ruling in the defendants’ favor with respect to the motion for judgment as a matter of law in view of the failure of proof of proximate causation.  The Supreme Court further ruled that there was no error in the trial justice’s refusal to give a jury instruction on the doctrine of spoliation and in her declining to recognize an evidentiary presumption with respect to the issue of causation.  The Court also ruled that there was no basis for granting the plaintiffs’ motion for a new trial.

Accordingly, the Supreme Court affirmed the judgment of the Superior Court.
State v. Jeffrey Alston, alias John Doe, No.09-83 (June 22, 2012)
The defendant, Jeffrey Alston, appealed from a Superior Court judgment of conviction for conspiracy to break and enter, breaking and entering of a dwelling, and assault with a dangerous weapon.  He also appealed from the denial of his motions for a new trial. The defendant first contended that his right to confrontation under the United States and Rhode Island Constitutions was violated by the evidentiary rulings of the trial justice.  Specifically, he asserted that the trial justice erroneously allowed statements made by his coconspirator into evidence as either admissions or adoptive admissions.  The defendant also argued that his right to cross-examine one of the state’s witnesses was unduly restricted and that the trial justice erred in refusing to pass the case.
 
The Supreme Court affirmed the judgment of the Superior Court in all respects.  With respect to the defendant’s right-to-confrontation argument, the Court held that the statements at issue were not testimonial and that their admission, therefore, did not violate the defendant’s constitutional right to confrontation.  The Court then acknowledged the defendant’s alternative argument that the statements at issue were inadmissible hearsay, but concluded that the trial justice did not err in admitting the statements under Rule 801(d)(2)(B) of the Rhode Island Rules of Evidence.  Next, the Court held that the defendant’s cross-examination of a state’s witness was not unduly restricted when the trial justice sustained an objection to one of the defendant’s questions because the defendant did not proffer an argument that a response to his question would have led to relevant evidence.  Finally, the Court held that the defendant failed to show that the remark underlying the defendant’s motion to pass the case was so inflammatory and prejudicial that the jury would not be able to decide the case adequately, based solely on the evidence before them. 

Town Houses at Bonnet Shores Condominium Association v. Michael A. Langlois, No. 11-181 (June 22, 2012)
The defendant, Michael A. Langlois, appealed from a Superior Court declaratory judgment entered in favor of the plaintiff, Townhouses at Bonnet Shores Condominium Association.  The judgment decreed that a lease agreement entered into by the defendant violated the “Declaration of Condominium of Townhouses at Bonnet Shores Condominiums” (declaration).  The defendant’s main contention on appeal was that the trial justice erred in finding that the defendant’s simultaneous rental of his condominium to three separate tenants under three separate rental agreements violated the declaration.  To support this contention, the defendant argued that the declaration was ambiguous and, therefore, should be interpreted in a manner that furthers the intent of the declaration, which, he argued, was only to prevent transient tenancies.

The Supreme Court affirmed the decision below in holding that any third-lease agreement or rental situation would violate the declaration.  In so holding, the Court first resolved that it would not review the validity of the underlying lease agreement because the issue was moot.  However, the Court determined that the issue of whether the defendant would violate the declaration were he to enter into a third lease or rental agreement within a single-year period was not barred under the mootness doctrine because it was capable of evading review and was a matter concerning a person’s livelihood.  The Court then noted that the laws of contract construction apply when reviewing a declaration.  Consequently, the Court held that the declaration at issue was not ambiguous, that the terms and conditions of the declaration clearly stated that the condominium could be rented only twice within a one-year period, and that, because the defendant currently had two renters within the condominium, a third rental or lease agreement would violate the declaration.  Furthermore, the Court held that the defendant’s additional claims on appeal were either meritless or not properly preserved.

Great American E&S Insurance Company v. End Zone Pub & Grill of Narragansett, Inc. et al., No. 10-375 (June 22, 2012)
The defendant, Michael Gondusky, filed a civil suit in the Superior Court against End Zone Pub & Grill of Narragansett, Inc. (End Zone), alleging that he had suffered serious injuries caused by the actions of two of End Zone’s employees when they refused to allow him to enter End Zone.  End Zone’s insurance provider, Great American E&S Insurance Company (Great American), filed a complaint for a declaratory judgment seeking a declaration that it was under no duty to defend or obligation to indemnify its insured, End Zone, in the underlying matter.  This appeal stemmed from the granting of Great American’s motion for summary judgment and a decree that Great American owed no duty to defend or obligation to indemnify End Zone or Mr. Gondusky in the underlying matter.  On appeal, Mr. Gondusky alleged that Great American committed an unfair claims practice by failing to satisfy its duty to inform him of its denial of coverage within a reasonable period of time under G.L. 1956 § 27-9.1-4.  Additionally, he contended that the assault and/or battery exclusion within the insurance policy was illusory, arguing it would preclude coverage for any contact resulting in an injury to a patron by an End Zone employee, whether the injury was intended or not and that, as such, the policy was unenforceable.
 
The Supreme Court affirmed the judgment of the Superior Court, holding first that Rhode Island’s Unfair Claims Settlement Practices Act, upon which Mr. Gondusky relied, did not provide him with a private cause of action nor did it provide him with the relief he sought.  Further, the Court held that the assault and/or battery exclusion was not illusory.
State v. Hamlet M. Lopez, No.09-280 (June 22, 2012)
The defendant, Hamlet M. Lopez, appealed from a Superior Court judgment of conviction for first-degree murder, for which he received a sentence of life imprisonment without the possibility of parole.  On appeal, the defendant argued that the trial justice erred by (1) allowing DNA evidence to be introduced against him through the testimony of a laboratory supervisor and the admission of an allele table documenting the DNA profiles of the defendant and the decedent; (2) admitting evidence of his prior instances of violence; (3) failing to instruct the jury adequately about prior inconsistent statements; and (4) imposing a sentence of life imprisonment without the possibility of parole.

The Supreme Court affirmed the judgment of, and sentence imposed by, the Superior Court.  First, the Court held that the Confrontation Clause was satisfied in this case because the defendant had ample opportunity to cross-examine the witness against him—the laboratory supervisor.  In so holding, the Court determined that it was the supervisor who had undertaken the critical stage of the DNA-profiling analysis and, thus, properly could testify about the contested DNA profiles and their corresponding matches.  Furthermore, the Court concluded that, although the admitted allele table was testimonial in nature, its admission was constitutionally sound because the defendant had ample opportunity to cross-examine the laboratory supervisor, who had formulated the allele table by independently analyzing and interpreting graphical raw data.  Second, the Court determined that the trial justice did not abuse his discretion in admitting evidence of the defendant’s prior acts of violence because such acts directly reflected upon, and were highly probative of, the defendant’s motive and intent to murder.  Third, the Court found no error in the trial justice’s jury instructions.  Lastly, the Court affirmed the defendant’s sentence of life imprisonment without the possibility of parole in light of the extreme brutality of the murder, as well as the defendant’s lack of remorse.
State v. Katherine Bunnell, alias Jane Doe, No. 10-388 (June 22, 2012)
The defendant, Katherine Bunnell, was convicted of second-degree murder and of conspiracy to commit murder after the death of her three-year-old nephew.  She appealed from her conviction and from a Superior Court order denying her motion for a new trial.  Specifically, the defendant asserted that the trial justice erred in two ways: First, by excluding from evidence certain excerpts from an interview that her boyfriend gave at the Woonsocket Police Department the day before her nephew died, and second, by ignoring “numerous inconsistencies” in the testimony of one of the state’s witnesses in denying her motion for a new trial.

The Supreme Court affirmed the judgment of the Superior Court.  First, the Court held that a “statement,” under Rule 804(b)(3) of the Rhode Island Rules of Evidence, pertains to the individual declarations provided within a longer narrative, rather than the entire narrative itself.  As such, the Court was satisfied that the trial justice did not abuse his discretion in excluding the six excerpts that the defendant contested.  Second, the Court held that the trial justice had performed the correct analysis in deciding the defendant’s motion for a new trial and that, in so doing, he did not overlook or misconceive material evidence.  Further, the Court was satisfied that the trial justice adequately articulated his reasons for denying the motion, sufficiently summarized the evidence presented at trial, and made appropriate determinations on the witnesses’ credibility to support the denial of the defendant’s motion for a new trial.
Pamela A. Riel et al. v. Harleysville Worcester Insurance Company et al., No. 11-63 (June 22, 2012)
The plaintiffs, Pamela A. Riel and Glenn N. George, as co-administrators of the estate of Robert Daniel George (decedent), and Pamela A. Riel, on behalf of her and the decedent’s minor daughter, Kara George, brought a complaint against Harleysville Worcester Insurance Company (Harleysville) and The Cormack-Routhier Agency, Inc. (Cormack) for declaratory and other relief.  The issue at hand was whether the decedent, who was struck and killed by an uninsured motorist, qualified as an insured under a commercial automobile insurance policy provided by Harleysville and procured by Cormack.  A Superior Court justice granted summary judgment in favor of the defendants, and the plaintiffs appealed.  They argued on appeal that the trial justice should not have dismissed their claims against Harleysville because a genuine issue of material fact existed with respect to whether the decedent should be considered a named insured under the Harleysville policy.  They further asserted that the trial justice erred in dismissing their claims against Cormack because, even if they failed to establish that the decedent was a named insured, they still were entitled to pursue their claims against Cormack for failing to procure adequate coverage.

The Supreme Court affirmed the judgment of the Superior Court.  First, the Court assumed, as the defendants did for purposes of their summary-judgment motions, that uninsured-motorist coverage was provided in the Harleysville policy.  It then reviewed the policy in conjunction with a copy of the “Rhode Island Uninsured Motorist Coverage” endorsement, which would have been a part of the decedent’s policy, had such coverage been provided.  After so reviewing, the Court stated that the terms of the policy were unambiguous with respect to the fact that the decedent was not a named insured, and it consequently held that he was not entitled to coverage under the policy’s plain terms.  The Court further held that the decedent did not qualify as an insured under any of the policy’s other terms.  Finally, the Court held that Cormack’s motion for summary judgment also was properly granted because the plaintiffs had failed to set forth evidence showing the existence of a disputed issue of material fact with respect to their claims against Cormack.
New London County Mutual Insurance Company v. Karolyn Fontaine, Individually, and in her capacity as administratrix of the Estate of Leo Fontaine, No. 10-49 (June 21, 2012)
In this appeal, the Supreme Court was called upon to confirm the extent of uninsured motorist coverage provided under an automobile insurance policy issued to a husband and wife, both of whom suffered injuries at the hands of an uninsured motorist while riding on a motorcycle owned by the husband but not expressly identified in the policy at issue.  The insurer, New London County Mutual Insurance Company (NLC), filed an action for declaratory relief in the Superior Court, seeking clarification as to the rights and obligations of the parties pursuant to the policy it had issued to the defendants.  Arguing that an “owned but not insured” exclusion set forth in the policy unambiguously excluded the defendants’ claim for uninsured motorist benefits, NLC filed a motion for summary judgment, which was granted by the Superior Court.  The defendants, Karolyn Fontaine, individually, and Karolyn Fontaine on behalf of the estate of her husband, Leo Fontaine, who died as a result of his injuries, appealed the grant of summary judgment and contended that the pertinent policy provision was ambiguous and should have been construed in favor of coverage. 

After reviewing the contested policy language in accordance with the rules of contract construction, the Supreme Court held that the “owned but not insured” exclusion was clear and unambiguous, and consequently extracted defendants’ claims from coverage.  Accordingly, the Supreme Court affirmed the judgment of the Superior Court.
Robert W. Hazard v. Connie Hazard, No. 11-116 (June 20, 2012)
The plaintiff, Robert W. Hazard, appealed from an order of the Family Court reflecting the court’s granting of the defendant’s motion to enforce the marital settlement agreement.  On appeal, the plaintiff requested the Supreme Court to vacate the marital settlement agreement in its entirety due to an alleged error in the appraisal of the plaintiff’s property, upon which appraisal the plaintiff alleged that the parties and the Family Court had relied to his detriment.

The Supreme Court held that the plaintiff did not successfully bear the burden of proving by clear and convincing evidence that there was a mutual mistake of fact regarding the value of the plaintiff’s property when the marital settlement agreement was entered into.  The Supreme Court stated that, therefore, the Family Court was not free to reform, vacate, or dismiss that agreement. 

Accordingly, the Court held that the Family Court did not err in granting the defendant’s motion to enforce, and the Court affirmed the order of the Family Court.
Beth A. DePrete v. Michael F. DePrete, No. 10-233 (June 20, 2012)
The plaintiff, Beth A. DePrete, appealed from an order of the Family Court reflecting the court’s denial of her motion seeking leave of court to relocate the parties’ two minor children from Rhode Island to Texas and seeking modification of the final judgment of divorce to reflect same.  On appeal, the plaintiff contended (1) that the justice of the Family Court who passed upon her motion abused his discretion, overlooked or misconceived the evidence, and was clearly wrong in finding that it was not in the best interests of the children to allow them to relocate to Texas; and (2) that, in determining whether relocation served the best interests of the children, the Family Court justice failed to properly apply the criteria set forth in the Supreme Court’s opinion in Dupré v. Dupré, 857 A.2d 242 (R.I. 2004).
 
After thoroughly reviewing the testimony and the hearing justice’s review and application of the Dupré factors, the Supreme Court held that the hearing justice did not overlook or misconceive material evidence in denying the plaintiff’s motion to relocate with the minor children, nor were his factual findings clearly wrong.

Next, the Court addressed the plaintiff’s contention that, according to the ALI Principles cited in Dupré, the relocation analysis should focus on the primary custodial family.  In addressing that contention, the Court ruled that the plaintiff failed to recognize that, in Dupré, the Court did not adopt the ALI Principles in toto; rather, the opinion noted that the Court in Dupré had merely reviewed that well-respected legal organization’s contribution to the ongoing discourse on the issue of relocation and ultimately drew upon concepts contained in several approaches to relocation in order to fashion its list of factors.  In fine, the Court perceived no abuse of discretion or clear error on the hearing justice’s part.  Hence, the Court declined to disturb the hearing justice’s ruling that relocation of the minor children to Texas would not be in their best interests.

Accordingly, the Supreme Court affirmed the order of the Family Court.
Edward P. Reynolds et al. v. Town of Jamestown et al. Holly Swett, Intervenor, No. 10-261 (June 18, 2012)
This case came before the Supreme Court on May 2, 2012, after a justice of the Superior Court granted a declaratory judgment in favor of the plaintiffs, Edward P. Reynolds, Nancy E.R. Wharton, and Ellen C. Reynolds (collectively, the plaintiffs).  The defendants, Louise Sellon, Lisa Barsumian, and Thomas Farrell, and the intervenor, Holly Swett (collectively, the defendants), appealed the trial justice’s determination that the creation of the lot owned by plaintiffs was proper.
 
The town regulations in effect in 1966 defined subdivision as “the division of a lot, tract or parcel of land into two or more lots, sites or other divisions of land in such a manner as to require provision for a street, for the purpose, whether immediate or future, of sale or of building development.”  The trial justice determined that, because two rights-of-way already provided access to the plaintiffs’ lot, the land division that created the lot did not require the provision of a new street and, consequently, was not a subdivision.  The trial justice reached his decision after noting that the creation of the plaintiffs’ lot did not significantly impact the general welfare of the community.  On appeal, the defendants contended that the land division constituted an illegal subdivision because the contiguous rights-of-way—amounting to an unimproved private easement—provided insufficient access to allow for the safe passage of emergency vehicles and to promote the welfare of the community. 

The Supreme Court affirmed the decision, but on grounds different from those relied upon by the trial justice.  The Court held that the plain language of the town subdivision regulation provided that a subdivision exists when a lot is divided into two or more lots in such a manner as to require the provision of a new street.  The Court held that because of the preexisting rights-of-way, the lot was not created in such a manner as to require the provision of a street.  Accordingly, the Court determined that application of the plain language of the subdivision regulation did not produce a result that was so disruptive of the communal welfare or incongruous with legislative intent as to require the Court to depart from its well-settled practice of according regulatory language its literal meaning.
Daniela Turacova, M.D. v. Patricia DeThomas, Administratrix of the Estate of Ronald DeThomas et al., No. 10-385 (June 14, 2012)
The plaintiff, Daniela Turacova, M.D. (the plaintiff or Turacova), appealed from a Superior Court judgment in favor of the defendant and counterclaimant, Patricia DeThomas, administratrix of the estate of Ronald DeThomas (the defendant or the estate), in the amount of $658,573.28, including prejudgment interest.  On appeal, the plaintiff contended that the trial justice erred in disregarding the parties’ agreement that payment for DeThomas’s interest in Taunton Avenue Medical Associates, LLC was due within thirty days from the date of the trial court’s determination of the purchase price.   The plaintiff also argued that the trial justice erred in entering judgment and awarding prejudgment interest to the defendant when there was no money judgment and no breach of contract action before the court.  Lastly, the plaintiff argued that the trial court erred in determining that the operating agreement executed by the parties contemplated that interest would run at the statutory rate beyond the three-month buyout period set forth in the agreement.  The Supreme Court affirmed the judgment of the Superior Court in favor of the defendant. 

The Supreme Court held that the settlement agreement did not supersede language in the operating agreement ¬concerning the time for payment for the property.  The Court declared that the settlement agreement explicitly provided for a request that the trial justice consider the effect of the plaintiff’s delay in complying with the three-month buyout provision in the operating agreement and, therefore, the trial justice did not exceed his authority by conforming to the parties’ request.

The Supreme Court also held that the trial justice’s imposition of prejudgment interest was appropriate because there were breach of contract claims before the trial justice and the plaintiff was found to have breached the terms of the operating agreement.  The Court found no error in the trial justice’s conclusion that the plaintiff breached the contract by failing to perform according to the terms of the operating agreement.  Additionally, the Court determined that the trial justice did not err in concluding that the parties intended for the imposition of interest to occur after the three-month buyout period.
State v. Nelson Rolon, alias John Doe, No. 09-193 (June 14, 2012)
The defendant, Nelson Rolon, was convicted of robbing an elderly woman of her purse.  He appealed his first-degree robbery conviction, arguing that the trial justice erred in denying his motion for a judgment of acquittal because the evidence produced at his trial was legally insufficient to prove the element of force.  Specifically, the defendant asserted that the state did not present any evidence to suggest that force greater than the amount needed to effectuate the taking of the purse was employed, and that no evidence was presented that the woman was intimidated or put in fear while the taking occurred.

The Supreme Court affirmed the judgment of the Superior Court.  In so doing, the Court reviewed the pertinent evidence, noting that, when viewing that evidence in the light most favorable to the state, a reasonable inference could be drawn that the defendant had a knife at the time that he took the elderly woman’s purse and that he used that knife to cut the straps of her purse to effectuate the taking.  Consequently, the Court said, a reasonable inference could be drawn that at the time that the defendant took the purse from the woman, the woman was aware of the taking and resisted it, or, at the very least, the purse was so attached to her as to afford resistance.  Ultimately, the Court held that the state produced sufficient evidence from which a jury could have inferred beyond a reasonable doubt that the defendant used force to take the woman’s purse, and that, therefore, a robbery occurred.
 
Tijani A. Olamuyiwa v. Zebra Atlantek, Inc., et al., No. 10-14 (June 14, 2012)
The plaintiff appealed from a Superior Court grant of summary judgment in favor of the defendants.  On appeal, the plaintiff contended that G.L. 1956 §§ 28-5-17(d) and 28-5-24.1(d) of the Rhode Island Fair Employment Practices Act (FEPA) rendered the release document which the plaintiff executed as part of his severance package void as it applied to his pending FEPA claims.  Specifically, the plaintiff contended that because a waiver of all attorneys’ fees was compelled as a condition of the release, the just-referenced sections of the General Laws “de facto require” that the plaintiff’s attorney have actual knowledge of any proposed agreement.

The issues before the Supreme Court involved statutory interpretation.  Upon reviewing the language of § 28-5-17(d), the Court held that the statute was plain and unambiguous; the Court noted that its language requiring an attestation stating that a waiver of attorneys’ fees was not compelled as a condition of a settlement was required when a consent order or conciliation agreement was entered by the Rhode Island Commission for Human Rights (Commission).  The Court held that the release signed by the plaintiff was in no sense a consent order or conciliation agreement entered by the Commission; and, therefore, it held that § 28-5-17(d) did not apply to the facts of the instant case.
Cheryl A. Sola v. Chelsea Leighton et al., No. 11-186 (June 13, 2012)
The plaintiff, Cheryl A. Sola (Sola or the plaintiff), filed a defamation claim after she was fired from Newport Hospital for allegedly disclosing confidential patient information.  The plaintiff alleged that the defendants, the City of Newport (city) and Det. Michael Caruolo (Det. Caruolo), individually and in his capacity as a member of the Newport Police Department (collectively, the defendants), were responsible for maliciously publishing false statements accusing the plaintiff of divulging private healthcare information concerning Newport police officers that she had culled from their Newport Hospital medical files.
 
The plaintiff appealed from a Superior Court decision granting summary judgment in favor of the defendants and dismissing her defamation claim as time-barred.  On appeal, the plaintiff argued: (1) that the statute of limitations on her claim should have been tolled because she filed her original John Doe complaint before the statutory period for bringing the claim had expired; (2) that her claim accrued on the date when she was fired, not on the date when the allegedly defamatory statements were published; and (3) that the statute of limitations was tolled because Det. Caruolo fraudulently concealed the plaintiff’s cause of action.

The Supreme Court affirmed the judgment of the Superior Court.  The Court concluded that G.L. 1956 § 9-5-20, which permits a plaintiff who does not know a defendant’s name to use a fictitious name for purposes of filing process, was unavailable to the plaintiff because she had knowledge of the author’s identity and his publication of the allegedly defamatory statements.  The Court also determined, in accordance with this jurisdiction’s traditional rule, that the plaintiff’s claim accrued on the date when the allegedly defamatory statements were published, not on the date when she was fired.  Finally, the Court held that there was no evidence indicating that Det. Caruolo had misrepresented or attempted to conceal his statements; consequently, the plaintiff could not employ G.L. 1956 § 9-1-20 to toll the statute of limitations.
Kathleen Pelosi v. Milton D. Pelosi, Nos. 09-202, 10-246 (June 13, 2012)
The defendant, Milton D. Pelosi, appealed from two orders of the Family Court.  The first order denied his motion to vacate the entry of the interlocutory judgment and the final judgment of divorce.  The second order granted the motion to dismiss his appeal, which motion was brought by the plaintiff, Kathleen Pelosi.  On appeal, the defendant contended that he was never provided notice of (1) the entry of the final judgment of divorce or (2) the hearing pursuant to which the amended final judgment was entered.  As a result, the defendant requested that the Supreme Court vacate both of those judgments and also that the Court vacate the order which dismissed his appeal.

The Supreme Court stated that the defendant did not do enough to satisfy his burden of responsibility with respect to the timely transmission of the record and transcripts.  The Court noted that the defendant failed to transmit the transcripts during the fifteenth month period between the filing of his notice of appeal and the hearing on plaintiff’s motion to dismiss, and it further noted that the defendant had not articulated a sufficient reason for that failure.  For that reason, the Court held that the Family Court justice did not abuse his discretion in granting the plaintiff’s motion to dismiss in light of the fact that the defendant had failed to perfect his appeal.  The Court further held that it did not need to reach the defendant’s argument with respect to his appeal from the denial of his motion to vacate.

Accordingly, the Supreme Court affirmed the judgment of the Family Court.
Nicola Tarzia v. State of Rhode Island et al., No. 10-15 (June 12, 2012)
The plaintiff appealed from judgments in favor of the defendants regarding his fifteen-count complaint that arose from the public dissemination of his court and arrest records that previously were ordered sealed and destroyed by the District Court.  In 2004, the Newport Police Department provided information about the plaintiff’s arrest for possession of cocaine to a newspaper reporter, who later published a story about the event.  On appeal, the plaintiff argued that a hearing justice wrongfully granted the Attorney General’s motion to dismiss prior to trial after finding no statutory duty on the part of the Attorney General to provide copies of the order, which sealed the plaintiff’s records, to law enforcement agencies.  In addition, the plaintiff challenged the trial justice’s determination that the monetary fine provided in G.L. 1956 § 12-1-12 was the plaintiff’s sole remedy and that G.L. 1956 § 12-1.3-4 did not apply.  The plaintiff contended that the trial justice should have harmonized the two statutory provisions.  The plaintiff also argued on appeal that contrary to the trial justice’s determinations, he was entitled to assert other causes of action based in common law, his right to privacy had been violated, and that he filed suit against a court clerk in her personal, not official, capacity.

The Supreme Court held that the Attorney General indeed had no statutory duty to distribute the order sealing the plaintiff’s records to respective law enforcement agencies.  It further held that the remedy found in § 12-1.3-4 did not apply to plaintiff’s case because he never was convicted of the underlying crime.  The Court also concluded that because the two statutes in question were separate and distinct and lacked a common legislative policy, the trial justice properly refused to harmonize them.  Additionally, the Court held that because the statute creating the right to seal court records and destroy arrest records operated in derogation of the common law, the plaintiff was not entitled to assert additional causes of action based on violations of the statute.  Finally, the Court held that, based on the evidence, no violation of his right to privacy occurred and that the court clerk was not sued in her personal capacity.
 
Accordingly, the Supreme Court affirmed the judgments of the Superior Court.
Warwick Sewer Authority et al. v. Felix Carlone, No. 11-24 (June 11, 2012)
The plaintiffs, Warwick Sewer Authority and the City of Warwick (city), brought a complaint for a declaratory judgment concerning the city’s ownership of real property, and a hearing justice granted the plaintiffs summary judgment on that complaint.  The defendant appealed, contending that when he dedicated the property at issue to the city in 1979, he did so subject to it being used exclusively as open space.  He argued that he maintained a reversionary interest in the property, and that, therefore, genuine issues of material fact should have precluded the hearing justice from granting summary judgment.  The defendant further asserted that the Superior Court lacked the requisite jurisdiction to grant summary judgment to the plaintiffs because no actual justiciable controversy existed in this case.

The Supreme Court first held that this case was justiciable because the plaintiffs had standing to bring their declaratory judgment action and, in so doing, they had presented sufficient facts giving rise to some conceivable legal hypothesis that would entitle them to some relief against the defendant.  On the merits, the Court stated that the plat map that the defendant had filed with the city upon his dedication sufficiently and unambiguously evidenced his intent to make an unconditional dedication of the subject property, without any limitations or restrictions.  The Court noted that acceptance by the public—the second element required to effectuate a dedication—was met when the city accepted the defendant’s dedication by noting it on a plat card that was signed by the chair of the planning board and recorded by a deputy city clerk.  The Supreme Court further reasoned that because the plat map and the plat card—the only two documents evidencing the defendant’s dedication—were unambiguous on their face, parol evidence was not admissible to vary the terms of those documents.  Ultimately, the Court held that no genuine issue of material fact existed and affirmed the judgment of the Superior Court.
 
Thomas L. DePetrillo v. Belo Holdings, Inc. et al., No. 11-172 (June 11, 2012)
The plaintiff, Thomas L. DePetrillo, appealed from the entry of summary judgment in favor of the defendants, Belo Holdings, Inc. (Belo) and Citadel Broadcasting Company (Citadel).  The plaintiff argued that the hearing justice erred in concluding that he did not have standing to challenge the validity of Citadel’s right of first refusal to purchase a broadcasting tower and surrounding real estate owned by Belo.  Further, on the merits, the plaintiff contended that Citadel’s right of first refusal was unenforceable as a matter of law because it did not contain a sufficiently definite description of the subject property, as is required under the statute of frauds.

The Supreme Court affirmed the judgment of the Superior Court.  The Court first refused to entertain Belo’s argument that the plaintiff’s appeal was moot because, since the time when the plaintiff had filed his complaint, the subject property had been transferred to Citadel.  The Court stated that this argument was without merit because Citadel acquired the property subject to the plaintiff’s notice of lis pendens.  The Court then held that the plaintiff lacked standing to challenge the validity of Citadel’s right of first refusal because he was a stranger to the right and, therefore, the Court declined to address the merits of the plaintiff’s argument that such right was unenforceable as a matter of law.  Lastly, the Court concluded that Belo had authority to sell the entire thirty-acre parcel to Citadel upon Citadel’s exercise of its right of first refusal because the plaintiff’s rights to the parcel had been extinguished at that time.
Sean LaFreniere et al. v. Michael P. Dutton et al., No. 11-244 (June 7, 2012)
The plaintiff, Sean LaFreniere (the plaintiff or LaFreniere) and the defendant, Michael P. Dutton (the defendant or Dutton), were traveling in Ohio in a vehicle owned and operated by the defendant, when Dutton rear-ended another vehicle on the highway.  The plaintiff sustained injuries from the collision, filed a complaint against the defendant alleging that his negligence caused the collision, and later received workers’ compensation benefits from the defendant’s workers’ compensation insurance carrier.  Dutton filed a motion for summary judgment, contending that LaFreniere was precluded from pursuing a negligence claim because he already had collected workers’ compensation benefits and, therefore, could not recover a second time in tort because of the exclusivity provision of the Workers’ Compensation Act, G.L. 1956
§ 28-29-20.  The trial justice granted summary judgment in favor of the defendant, concluding that the plaintiff was precluded from collecting in tort, based on the exclusivity provision of the Workers’ Compensation Act.  The plaintiff appealed.

On appeal, the plaintiff argued that the trial justice erred in granting summary judgment in favor of the defendant because he and the defendant were traveling for “personal reasons” and because Dutton did not meet the requirements set forth in § 28-29-20, as he was not an employer, director, officer, agent, or employee of M.P. Dutton Landscaping, thereby precluding him from the protections of the exclusivity provision. 

The Supreme Court affirmed the decision of the trial justice.  The Court held that Dutton was the plaintiff’s employer in accordance with the definition of employer set forth in § 28-29-2(5), allowing the defendant to seek protection under the exclusivity provision.  The Supreme Court concluded that because the plaintiff already had received workers’ compensation benefits from the defendant’s insurance carrier, the plaintiff was precluded from pursuing a negligence claim against Dutton based on § 28-29-20 of the Workers’ Compensation Act.
State ex rel. City of Providence v. Troy Auger, No. 10-169 (June 6, 2012)
The defendant, Troy Auger, appealed from a judgment of conviction in the Superior Court of a violation of § 16-93 of the Code of Ordinances of the City of Providence.  On appeal to this Court, the defendant contended the following: (1) that § 16-93 is preempted as a matter of law—both because it allegedly is in direct conflict with state statutes regulating noise and also because it allegedly invades a regulatory field that is completely occupied by the state; (2) that § 16-93 of the Providence Code of Ordinances is unconstitutional because it is impermissibly vague; and (3) that § 16-93 is unconstitutional because it is overly broad.

The Supreme Court affirmed the judgment of the Superior Court.  The Supreme Court held that, as a result of both Rhode Island’s present criminalization of the amplification of sound and the common law history of its criminalization, it was apparent that the defendant’s violation is one for which he had a right to a jury trial.  As a result, the Supreme Court concluded that the Superior Court had jurisdiction over the defendant’s appeal. 

The Supreme Court further held that § 16-93 was not preempted by state law because (1) § 16-93 is not in conflict with state law and (2) the General Assembly did not express an intent to occupy the field of noise regulation.
Maureen Gallagher v. National Grid USA/Narragansett Electric, Dennis Gallagher v. National Grid USA/Narragansett Electric, No. 11-111; Maureen Gallagher v. USGEN New England, Inc., Dennis Gallagher v. USGEN New England, Inc., No. 11-113 (June 5, 2012)
Dennis Gallagher was diagnosed with malignant mesothelioma.  A trial judge of the Workers’ Compensation Court entered decrees holding Mr. Gallagher’s most recent employer, USGEN New England, Inc. (USGEN), liable to pay benefits to Mr. Gallagher and to his wife, Maureen Gallagher, pursuant to G.L. 1956 § 28-34-8.  The Appellate Division of the Workers’ Compensation Court (Appellate Division) vacated those decrees and entered final decrees assessing liability against National Grid USA/Narragansett Electric (National Grid), where Mr. Gallagher had worked prior to working at USGEN.  Mrs. Gallagher and National Grid each petitioned for a writ of certiorari to review the Appellate Division’s final decrees.  The Supreme Court issued both writs and consolidated the cases.

In support of its petition for certiorari, National Grid argued that the Appellate Division erred in overturning the trial judge’s findings of fact because the trial judge did not overlook or misconceive the evidence and was not clearly wrong.  Mrs. Gallagher similarly argued, asserting additionally that the trial judge’s findings were supported by Mr. Gallagher’s undisputed testimony that there was asbestos in the workplace at USGEN.  She further asserted that the Appellate Division misinterpreted the law by requiring Mr. Gallagher to be exposed to asbestos at USGEN as a condition precedent to his success against USGEN.

The Supreme Court affirmed the final decrees of the Appellate Division.  In so doing, the Court noted that because the Appellate Division found clear error on the part of the trial judge, it was free to conduct a de novo review of the evidence.  The Court did not find error with the Appellate Division’s findings that Mr. Gallagher’s testimony with respect to USGEN was mere speculation and not probative on the issue of whether his conditions while working for USGEN were of the same type or nature in which he first contracted the disease.  Therefore, the Court held that the Appellate Division did not err in vacating the trial judge’s decrees and in entering final decrees assessing liability against National Grid instead.
Joseph F. Alessi v. Bowen Court Condominium et al., No. 10-436 (June 4, 2012)
This case came before the Supreme Court on April 4, 2012, on appeal from a grant of summary judgment in favor of the defendants, Bowen Court Condominium (condominium) and Janet O’Rourke, in her capacity as president of the condominium association (association), (collectively, the defendants).  On appeal, the plaintiff, Joseph F. Alessi (Alessi or the plaintiff), argued that the trial justice erred in determining that the right to exclude withdrawable real estate from a condominium after a foreclosure expires when the declarant’s right to withdraw the real estate otherwise would have expired. 

The Supreme Court affirmed the judgment of the Superior Court.  The Court held that the plaintiff’s interpretation of G.L. 1956 § 34-36.1-2.18(i) does not comport with the legislative intent expressed in the Condominium Act, which is a vehicle for consumer protection.  The Court determined that § 34-36.1-2.18(i) does not create an unbounded right to exclude property from a condominium subsequent to foreclosure and that, instead, the entity taking title to a right to exclude real estate after a foreclosure has no greater rights than the declarant otherwise would have enjoyed.
Emmanuel Barbosa v. State of Rhode Island, No.11-46 (June 4, 2012)
The applicant, Emmanuel Barbosa, appealed from a Superior Court judgment denying his application for postconviction relief.  The applicant argued “that the hearing justice misconceived or overlooked evidence in determining that there was not a reasonable probability that, but for trial counsel’s unprofessional errors, the result of his trial would have been different.”  Specifically, the applicant contended that if his trial counsel had presented testimony at trial of Sheila Calderon, a witness who testified in a deposition that she did not see the applicant with a gun on the night in question, the jury would have found reasonable doubt.  The Supreme Court affirmed the judgment of the Superior Court, holding that the applicant’s ineffective assistance claim was groundless in that he failed to set forth any evidence suggesting that he was prejudiced by his trial counsel’s alleged deficiencies. 
State v. Jeffrey S. Murray, No. 11-127 (May 30, 2012)
The defendant, Jeffrey S. Murray, appeals from the denial of his motion to correct an illegal sentence pursuant to Rule 35 of the Superior Court Rules of Criminal Prcoedure.  In February 2010, the defendant was charged by criminal information with a felony pursuant to G.L. 1956 § 12-29-4 and § 12-29-5 of the Domestic Violence Prevention Act for violating a no-contact order.  That same month, the defendant pled nolo contendere to those charges, and the hearing justice sentenced the defendant to four years imprisonment at the Adult Correctional Institutions, with one year to serve and three years suspended, with probation.  In June 2010, the defendant filed a Rule 35 motion to correct the sentence, arguing that the sentence imposed on him was illegal because the provisions of § 12-29-5 apply only to individuals with two prior misdemeanor convictions, and one of his predicate offenses was a felony.  A justice of the Superior Court denied the motion, and ruled that § 12-29-5 did apply to the defendant because the statute did not distinguish between misdemeanors and felonies. On appeal, the defendant argued that the trial justice erred in her interpretation of the statute.

After considering the written and oral arguments of the parties, the Supreme Court held by virtue of his voluntary decision to knowingly enter a plea of nolo contendere, the defendant had waived all nonjurisdictional defects in the criminal information.  Although it was framed in the terms of a Rule 35 motion, the Court reasoned that the defendant’s argument actually was an attack on the propriety of his conviction—namely, that the state improperly charged him with a violation of § 12-29-5.  Any nonjurisdictional challenge to an information must be raised prior to trial or entering a plea.  In addition, the defendant failed to challenge his conviction on any grounds that are considered exceptions to the waiver-by-plea rule.  Although it is true that it has the authority to correct an illegal sentence at any time, the Court held that the defendant’s sentence was not illegal because it was well within the prescribed statutory limits.

Accordingly, the Court affirmed the judgment of the Superior Court. 
Robert Watson v. Gordon Fox et al., No. 09-215 (May 22, 2012)
The plaintiff, Robert Watson, together with nine Republican colleagues from the Rhode Island House of Representatives, filed a complaint for declaratory relief in which they sought a ruling that the process the General Assembly used to allocate $2.3 million in state funds for legislative grants to local and private organizations in the FY2008 budget act violated articles 5, 6, and 9 of the Rhode Island Constitution. The plaintiffs brought this action in their private capacities as Rhode Island taxpayers, and not in their capacities as elected officials.  In response, the defendants filed a motion to dismiss the complaint under Rule 12(b)(6) of the Superior Court Rules of Civil Procedure for failure to state a claim upon which relief can be granted.  A justice of the Superior Court found that the plaintiffs lacked standing to bring their claim because Rhode Island does not recognize so-called “taxpayer standing,” and the plaintiffs were unable to articulate a particularized injury that was distinct from any injury that may have been suffered by the public in general.  The motion justice also concluded that even if the plaintiffs had standing to maintain their action, the requested relief was a nonjusticiable political question.  Only the plaintiff Robert Watson appealed from that judgment to the Supreme Court. 

On appeal, the plaintiff argued that his injury-in-fact as a taxpayer is sufficient to satisfy the standing requirement or, in the alternative, urged the Court to join a number of other states that recognize so-called “taxpayer standing.” The plaintiff also argued that the Court should invoke the “substantial public interest” exception, and overlook standing in this matter.  The defendants maintained their argument that the plaintiff lacked proper standing, and argued that the Court should neither adopt the doctrine of taxpayer standing nor overlook that requirement based on the facts of this case. 

The Supreme Court held that the plaintiff failed to show any concrete, particularized harm under its traditional standing analysis.  On the contrary, the Court held that his alleged injury was indistinguishable from that of any other member of the public, and therefore insufficient to maintain this action.  The Court declined to adopt the doctrine of taxpayer standing because of Rhode Island’s long-standing jurisprudence that requires the plaintiff to demonstrate a distinct, palpable injury and the factual distinctions between this case and the cases of other jurisdictions that have adopted such a rule.   Furthermore, the Court  declined to exercise its discretion by invoking the “substantial public interest” exception in order to overlook the standing requirement.  The Court concluded that it would be imprudent to overlook the standing requirement when faced with questions of constitutional import that bear on the authority and duties of a coordinate branch of government, particularly where the plaintiff waited so long to bring this action and has apparently failed to join all necessary parties.    

Accordingly, the Court affirmed the judgment of the Superior Court.
Gary Tassone v. State of Rhode Island, 10-333 (May 21, 2012)
The applicant, Gary Tassone appealed from a judgment of the Superior Court denying his application for postconviction relief.  On appeal, the applicant contended that the hearing justice erred when she (1) denied his application for postconviction relief without conducting an evidentiary hearing, in light of the fact that the trial transcript could not be located, and (2) dismissed his assertions of ineffective assistance of counsel. 

After reviewing the record, the Court held that without the benefit of an evidentiary hearing or trial transcripts, the hearing justice was unable to conduct an adequate, independent review of trial counsel’s actions. 

The Court also directed that from that point forward, an evidentiary hearing will be required in the first application for postconviction relief in all cases involving defendants sentenced to life without the possibility of parole. 

Therefore, the Court vacated the judgment of the Superior Court and remanded the case for an evidentiary hearing. 
State v. Shurron Washington, No. 10-408 (May 17, 2012)
The defendant, Shurron Washington, sought review of a Superior Court judgment that declared him to be in violation of the terms of his probation.  That judgment revoked the suspension of a ten-year sentence that had previously been meted out pursuant to the defendant’s conviction of assault with intent to commit certain specified felonies. 

On appeal, the defendant contended that the hearing justice acted arbitrarily and capriciously in finding a violation of the terms and conditions of his probation.  The defendant focused his appeal upon the contention that the record in the case raised too many questions as to the reliability of the identification of him as the perpetrator of the alleged attack on a female visitor to the CCRI campus in Lincoln.

The Supreme Court ultimately held that the hearing justice did not act arbitrarily or capriciously in assessing the credibility of the various witnesses or in adjudicating the defendant to be a probation violator.  The Court stated that, after carefully reviewing the entire record, it was evident that the hearing justice had more than plausible reasons for accepting the complaining witness’s testimony and identification of the defendant and for rejecting the version of events testified to by the defendant and by various members of his family. 

The Supreme Court held that the hearing justice’s detailed findings as to the testimony and evidence presented at the hearing were more than sufficient to serve as predicates for his conclusion that the defendant had not kept the peace and had not been of good behavior.

Accordingly, the Supreme Court affirmed the judgment of the Superior Court.
Maureen Habershaw et al. v. Michaels Stores, Inc. et al, No. 11-94 (May 17, 2012)
The plaintiff, Maureen Habershaw, appealed from the Superior Court’s grant of summary judgment in favor of the defendant, Michaels Stores, Inc.  Before the Supreme Court, the plaintiff argued that summary judgment was improperly granted when the court found that no issue of material fact existed about whether a dangerous condition existed in the defendant’s store at the time of the plaintiff’s fall. 

The Court rejected the plaintiff’s argument that an allegation that a floor was shiny, standing alone, could withstand a challenge to an assertion that the plaintiff was injured as a result of a dangerous condition.  The Court reasoned that the allegation of a shiny floor, without more, was not competent evidence of the defendant’s negligence. 

Accordingly, the Court affirmed the Superior Court’s grant of summary judgment in favor of the defendant.
State v. Esteban Carpio, No. 09-28 (May 14, 2012)
This case came before the Supreme Court on appeal by the defendant, Esteban Carpio (the defendant or Carpio), from a judgment of conviction for the first-degree murder of a police officer; discharging a firearm while committing a crime of violence; and felony assault with a dangerous weapon.  The defendant was sentenced to life imprisonment without parole, with a consecutive sentence of life imprisonment for committing a crime of violence with a firearm resulting in death, and another consecutive twenty-year term for felony assault.  On appeal to the Supreme Court, the defendant contended that, based on his mental incapacity, he could not be found guilty of the crimes set for in the indictment, and that the trial justice improperly instructed the jury on the question of criminal responsibility.  The defendant also argued that the sentence of life imprisonment without parole was error.  The Supreme Court denied and dismissed this appeal and affirmed the judgment in all respects.

On the defendant’s assertion that the Supreme Court should review the alleged insufficiency of the evidence concerning the question of criminal responsibility, the Court refused to conduct such a review because the defendant failed to preserve the issue for appeal by declining to file a motion for a new trial.  The Supreme Court also declined to accept the defendant’s argument that the insufficiency of the evidence should be reviewed under the plain error rule because Rhode Island does not recognize the plain error rule.

The Supreme Court held that the trial justice did not err in his instructions to the jury because the instructions adequately covered the law, and clearly articulated the factors that the jury was to consider in deliberation in order to determine whether the defendant possessed the mental capacity to be held liable for his actions.

Finally, the Supreme Court affirmed the defendant’s sentence of life imprisonment without parole.  After careful review of the record, the Supreme Court concluded that the sentence of life imprisonment without parole was appropriate because the crime and the offense fit squarely within the narrow category of offenses for which such a sentence is reserved.  The murder of a twenty-seven-year law enforcement veteran, committed with the officer’s own firearm, did not warrant a reduction in sentence.

Accordingly, the Supreme Court affirmed the judgment of conviction and ratified the imposition of a sentence of life imprisonment without the possibility of parole.
State v. Kayborn Brown, No. 10-102 (May 10, 2012)
This case came before the Supreme Court on appeal from a Superior Court judgment of conviction after a jury verdict finding the defendant, Kayborn Brown (the defendant or Brown), guilty of first-degree robbery.  The indictment stemmed from the brutal beating and robbery of a Community College of Rhode Island student.  Brown was sentenced to forty years at the Adult Correctional Institutions, with fifteen years to serve and twenty-five years suspended, with probation.  On appeal, the defendant contended that the trial justice (1) erred in denying his motion to suppress the out-of-court identification based on a photographic array he contends was unduly suggestive; and (2) abused his discretion under Rule 403 of the Rhode Island Rules of Evidence by denying the defendant’s motion in limine to exclude evidence of a fraudulent charge to the complainant’s credit card shortly after the robbery. 

The Supreme Court affirmed the Superior Court’s judgment of conviction.  The Court held that the photographic array was not unduly suggestive and that the trial justice did not err in determining that the array featured men who were similar in appearance and consistent with the complainant’s description of his assailant.  The Court additionally held that the trial justice did not abuse his discretion under Rule 403 by admitting into evidence business records indicating that after the robbery, the complainant’s credit card had been used to pay a cellular phone bill for an account in the name of a person sharing the same address as the defendant and the same address and date of birth as the defendant’s mother.
Rebecca L. Gushlaw et al. v. Matthew J. Milner et al., No. 09-376 (May 10, 2012)
Before the Court was the plaintiff’s appeal of a Superior Court decision granting summary judgment in favor of the defendant.  The plaintiff’s appeal in this matter presented the Court with an issue of first impression—does the driver of a motor vehicle, who is an adult but underage drinker, have a duty to protect third parties from the tortious conduct of the intoxicated individual he has agreed to transport, who is likewise an adult but underage drinker, by preventing that individual from operating a motor vehicle?  On appeal, the plaintiff presented what she perceived to be four distinct theories of liability:  (1) liability resulting from a cognizable duty ascertained from a consideration of the factors set forth in Banks v. Bowen’s Landing Corp., 522 A.2d 1222 (R.I. 1987); (2) liability pursuant to a “special relationship” between the defendant and his intoxicated passenger as set forth in the Restatement (Second) Torts § 315 (1965) and Rhode Island case law; (3) consequent liability based on the defendant’s purported assumption of a duty to prevent his passenger from later driving under the influence; and (4) liability stemming from the defendant’s alleged “substantial assistance” of his intoxicated passenger’s subsequent operation of a motor vehicle.  In countering, the defendant argued that the duty alleged by the plaintiff—one that places an affirmative obligation on an adult individual to prevent a third party from operating a vehicle while under the influence of alcohol—is not a duty that supports a cognizable claim under existing authority.  The defendant emphasized the evident public policy concerns, urging the Supreme Court to refrain from essentially creating a new cause of action. 

After performing the requisite case-specific analysis to ascertain whether a duty existed under the facts of the case, the Supreme Court concluded that the duty alleged by the plaintiff could not be supported by any of her proposed theories.  The Court also highlighted the numerous public policy considerations associated with imposing what could be viewed as a “designated-driver” duty, and it held that these concerns, in conjunction with the difficulties in defining such a burdensome duty, made the issue more appropriate for legislative review and public debate.

Accordingly, the Court affirmed the judgment of the Superior Court.
Kevin M. Lyons v. State of Rhode Island, No.  11-73 (May 7, 2012)
The applicant, Kevin M. Lyons, appealed from a judgment of the Superior Court denying his second application for postconviction relief.  On appeal, Lyons argued that his application was wrongfully denied given that (1) he is actually innocent, (2) the trial justice failed, during his trial, to properly address a jury note, (3) his prosecution was barred by the statute of limitations, (4) the trial justice had been unclear in sentencing, and (5) the parole board had wrongfully denied his application for parole. After reviewing the record, the Supreme Court determined that Lyons’ first four arguments, arguments available to him during his first application for postconviction relief, were barred by the doctrine of res judicata.  On Lyons’ final argument, the Court held the parole board’s denial of Lyons’ application for parole was well within the board’s broad discretion. For the reasons set forth in its opinion, the Supreme Court affirmed the judgment of the Superior Court. 
Empire Fire and Maine Insurance Companies v. Citizens Insurance Company of America/Hanover Insurance, No. 11-33 (May 7, 2012)
The defendant, Citizens Insurance Company of America/Hanover Insurance (Citizens), appealed from a grant of summary judgment in favor of the plaintiff, Empire Fire and Marine Insurance Companies (Empire).  Citizens argued that the hearing justice erred in granting summary judgment in favor of Empire for the complete reimbursement of attorneys’ fees expended by Empire in defending against a civil suit resulting from an accident caused by a driver insured by Citizens.  Citizens contended that, because its and Empire’s insurance policies contained conflicting “other insurance” provisions, Empire was entitled only to a pro-rata apportionment of defense costs.

The Supreme Court affirmed the judgment of the Superior Court.  As an initial matter, the Court determined that it would not literally apply the “other insurance” provision language of Citizens’ policy to the additional insured lessor, BMW Financial, because doing so would render Citizens’ coverage of BMW Financial illusory.  The Court then determined that the ordinary reader and purchaser of such policy would have interpreted it as providing BMW Financial with primary coverage under the circumstances of this case.  Accordingly, the Court held that Citizens, as the primary insurer, had the primary duty to defend BMW Financial.  As a result, the Court concluded that there was no conflict between Citizens’ and Empire’s policies and, that therefore, there was no need for a pro-rata apportionment of defense costs.
Rudy Sifuentes v. State of Rhode Island, No. 10-7 (May 7, 2012)
The applicant, Rudy Sifuentes, by way of a writ of certiorari, sought review of a Superior Court judgment denying his application for postconviction relief.  The applicant argued that the hearing justice erred in denying his postconviction-relief application without providing him an evidentiary hearing.  The Supreme Court affirmed the judgment of the Superior Court.  The Court held that the applicant was provided with all of the process that he was due because the hearing justice properly notified the applicant of his inclination to issue a summary decision and provided the applicant with an adequate opportunity to reply to the proposed dismissal.  Instead, the applicant stated a desire to forgo oral argument; as such, the Court determined that the hearing justice appropriately exercised his discretion by denying the applicant’s postconviction-relief application.
State v. Gary Gromkiewicz, No. 11-90 (May 4, 2012)
The defendant, Gary Gromkiewicz (the defendant), appealed from a Superior Court judgment declaring him in violation of his probation, stemming from his alleged participation in an armed robbery.  On appeal, the defendant argued that the evidence presented at his violation hearing was insufficient to meet the reasonable satisfaction standard and that the trial justice erred by finding that the defendant had violated his probation by failing to keep the peace and remain on good behavior.

The Supreme Court concluded that the trial justice did not act arbitrarily or capriciously in finding that the defendant had violated the terms of his probation.  The Court further concluded that the trial justice acted within her discretion when assessing the credibility of the testifying witnesses.  Accordingly, the Supreme Court affirmed the judgment of the Superior Court.   
Michael Derderian et al v. Essex Insurance Co., No. 09-358 (April 27, 2012)
The plaintiffs, Michael and Jeffrey Derderian, appealed from the grant of summary judgment in favor of the defendant, Essex Insurance Company, in a declaratory-judgment action.  The plaintiffs alleged that, based on the language of G.L. 1956 § 12-28-5 and the pertinent insurance policy, the trial justice erred in concluding that Essex had no duty to defend the plaintiffs against the state’s criminal prosecutions of them on charges of involuntary manslaughter.  The Supreme Court affirmed the decision below by holding, first, that the term “suit,” as used in the policy, created a duty to defend only in civil proceedings, and second, that § 12-28-5 did not transmute the criminal indictments against the plaintiffs into a civil proceeding. 
Jo-An Krivitsky v. Brian D. Krivitsky, No. 10-267 (April 17, 2012)
The defendant, Brian D. Krivitsky, appealed pro se from two Family Court orders authorizing a commissioner to sell the defendant’s real property to satisfy the child-support arrearage he owes to the plaintiff, Jo-An Krivitsky.  The defendant asserted three main issues on appeal: (1) the Family Court lacked jurisdiction to enter the appealed orders; (2) it was error for the Family Court to order the sale of his home; and (3) various judicial improprieties occurred in the Family Court throughout the course of the litigation.

The Supreme Court affirmed the orders of the Family Court and remanded the case to the Family Court for further proceedings in accordance with its opinion.  First, the Court determined that the Family Court had the authority to enter the appealed orders because at the time such orders were entered, the papers of the case had been remanded to the Family Court.  Second, the Court ruled that it was well within the Family Court’s authority to order the sale of the defendant’s property to satisfy his outstanding child-support obligation.  Lastly, the Court held that the defendant’s allegations of judicial bias were not properly preserved and, in any event, were without merit.
Ambrose C. Mendes, Jr., et al v. Alfred Factor et al., No. 10-171 (April 17, 2012)
The plaintiffs, Ambrose C. Mendes, Jr., Victor Mendes, and Madonna Mendes appealed from a Superior Court judgment in favor of the defendants, Alfred Factor and Kirshenbaum & Kirshenbaum Attorneys at Law, Inc.  The plaintiffs first argued that the hearing justice erred in his determination that Victor and Madonna Mendes failed to perfect their appeals in the Superior Court by not filing separate claims of appeal pursuant to G.L. 1956 § 33-23-1(a)(1).  Second, the plaintiffs alleged that the hearing justice also erred by finding that Ambrose C. Mendes, Jr.’s, appeal was not perfected because he failed to file his reasons of appeal based on § 33-23-1(a)(2).  Lastly, the plaintiffs maintained that the hearing justice wrongfully dismissed their verified complaint on statute-of-limitations grounds.

The Supreme Court first affirmed the judgment of the Superior Court to the extent that it dismissed Victor and Madonna Mendes’s probate appeal for their failure to file a claim of appeal.  The Court also affirmed the dismissal of the plaintiffs’ verified complaint, holding that the hearing justice did not err in his finding that the statute of limitations barred the complaint.  The Court declined to adopt either the “continuing course of conduct doctrine” or the “continuing representation doctrine,” as proposed by the plaintiffs in an attempt to keep their claims alive.  The Court further held that the discovery-rule exception to the statute of limitations did not apply in this case because the defendants’ allegedly actionable conduct occurred more than twenty years before the plaintiffs filed suit and was well known to the plaintiffs at the time of its occurrence. 

The Court, however, vacated the judgment insofar as it dismissed Ambrose C. Mendes, Jr.’s, probate appeal.  Although the Court found no error with the hearing justice’s determination that Ambrose C. Mendes, Jr., was the only plaintiff to have satisfied the requirements of § 33-23-1(a)(1), the Court held that Ambrose Mendes, Jr., adequately filed his reasons of appeal pursuant to § 33-23-1(a)(2) when he filed a detailed consent order under § 33-23-1(f).  Thus, the Court was satisfied that the probate appeal was perfected under § 33-23-1(a), at least to Ambrose C. Mendes, Jr. 
AVCORR Management, LLC v. Central Falls Detention Facility Corporation, No. 10-343 (April 17, 2012)
The defendant, Central Falls Detention Facility Corporation (Detention Facility or the facility), appealed from a Superior Court order granting the plaintiff’s, AVCORR Management, LLC’s (AVCORR), petition to appoint a binding arbitrator to settle the parties’ dispute over several types of fees that AVCORR alleged it was owed by the facility.  On appeal, Detention Facility argued that only the “Annual Fixed Fee” and AVCORR’s business expenses were subject to binding arbitration pursuant to the parties’ agreement.  The facility further alleges that the “Annual Man Day Fee” was not subject to arbitration pursuant to the “limiting language” of the agreement’s arbitration clause.

After reviewing the agreement at issue, the Supreme Court concluded that the parties intended to arbitrate only those disputes dealing with the “invoice,” which was payable on a monthly basis.  The Court stated that the term “invoice” was defined by the parties as consisting of the monthly portion of the Annual Fixed Fee and the business expenses, but not the Annual Man Day Fee.  According to the Court, the Annual Man Day Fee, described in a different section of the agreement, was to be paid separately from the monthly invoice—specifically, “within [t]hirty (30) [d]ays of the end of each Annual Period during which the fee was earned.”  Based on all of this, the Court held that Detention Facility and AVCORR agreed to submit to arbitration only those disputes dealing with the Annual Fixed Fee and the business expenses, and not those disputes dealing with the Annual Man Day Fee.  Consequently, it vacated and reversed the order of the Superior Court to the extent that the order granted AVCORR’s petition to appoint a binding arbitrator to resolve the parties’ dispute regarding the Annual Man Day Fee.
The Narragansett Electric Company v. Salvatore Saccoccio, in his capacity as the Assessor for the City of Cranston, Rhode Island et al., No. 10-176 (April 17, 2012)
The plaintiff, the Narragansett Electric Company, appealed from the Superior Court’s grant of summary judgment in favor of the defendants, Salvatore Saccoccio, in his capacity as the assessor for the City of Cranston, and Robert Strom, in his capacity as the finance director for the City of Cranston.  On appeal, Narragansett Electric contended that the hearing justice committed reversible error in ruling that Narragansett Electric did not timely file its appeal with the tax assessor for the City of Cranston and that the Superior Court therefore lacked subject matter jurisdiction.  Narragansett Electric additionally asserted that the defendants are barred from raising the issue of timeliness because they failed to address such an issue at the municipal level and did not sufficiently articulate that contention as an affirmative defense within their answer filed in the Superior Court. 

The Supreme Court vacated the judgment of the Superior Court.  The Court held that the timeliness requirements set forth in G.L. 1956 § 44-5-26 were not necessarily determinative as to the subject matter jurisdiction of the Superior Court, but rather those requirements were conditions precedent to the assertion of claims under that statute.  As a result, the Court held that the hearing justice erred in ruling that the Superior Court lacked subject matter jurisdiction over the instant action in view of what the hearing justice deemed to be Narragansett Electric’s failure to comply with the condition precedent set forth in § 44-5-26. 

The Supreme Court further stated that a condition precedent, such as the defendants’ timeliness argument, must be called to the attention of the trial justice with specificity and particularity in accordance with Rule 9(c) of the Superior Court Rules of Civil Procedure.  In light of the fact that the defendants did not set forth their affirmative defense regarding timeliness with the specificity and particularity required by Rule 9(c), the Supreme Court ruled that the defendants waived their timeliness argument.

Accordingly, the Supreme Court vacated the Superior Court’s entry of summary judgment in favor of the defendants and remanded the case to the Superior Court.
Shannon Reagan et al v. The City of Newport et al. No. 10-428 (April 17, 2012)
The plaintiffs, Shannon Reagan, William A. Reagan, Terrance Moy, and Margaret Moy, appealed from a judgment in favor of the defendants, the City of Newport and its representatives, on the plaintiffs’ action to clear title to a portion of the Washington Street Extension located in the City of Newport.  The plaintiffs argued that the trial justice erred in holding that statutory abandonment is the exclusive means by which a municipality may abandon a public highway.  The Supreme Court affirmed the judgment of the Superior Court and held that the exclusive method by which a municipality may abandon a public highway is through strict compliance with the requirements of G.L. 1956 chapter 6 of title 24, the Abandonment Statute.
Quality Concrete Corp. v. Travelers Property Casualty Company of America, No. 10-263 (April 16, 2012)
The plaintiff, Quality Concrete Corp. (Quality Concrete), appealed from the Superior Court’s grant of summary judgment in favor of the defendant, Travelers Property Casualty Company of America (Travelers).  On appeal, the plaintiff corporation contended the following: (1) that, upon the issuance by a potential plaintiff of an “adversarial communication,” Travelers was required to provide independent counsel to represent the insured’s interests because that adversarial communication presaged a potential conflict of interest between the insurer and the insured; (2) that summary judgment was inappropriate because the determination as to whether or not there was a conflict of interest between the insurer and the insured constitutes a material issue of fact; and (3) that Travelers ratified Quality Concrete’s choosing to engage independent counsel by not objecting to Quality Concrete’s having engaged such an attorney to represent it with respect to a fatal accident which took place on its property. 

After carefully reviewing the record and the arguments of the parties, the Supreme Court determined that Travelers did not have a duty to subsidize the engagement of independent counsel to represent Quality Concrete upon the issuance of an “adversarial communication” by a potential plaintiff.  Specifically, the Court stated that the mere fact that a conflict might arise at some later point in time does not call for the engagement of independent counsel prior to the filing of an actual complaint.

The Supreme Court further stated that the engagement of independent counsel to represent the insured should be approved by the insurer.  The Court noted that at no time did any such approval emanate from Travelers.  The Court ruled that the plaintiff’s argument concerning ratification was without merit. 

For the reasons set forth in its opinion, the Supreme Court affirmed the Superior Court’s grant of summary judgment in favor of the defendant.
Wesley R. Spratt v. State of Rhode Island, No. 10-205 (April 13, 2012)
The applicant, Wesley R. Spratt (Spratt), appealed pro se from a judgment of the Superior Court dismissing his application for postconviction relief.  On appeal, Spratt contended that the hearing justice (1) wrongfully dismissed his claim that a courthouse identification of Spratt by a witness was improperly orchestrated by the state; (2) improperly denied his claim that an in-court witness identification of Spratt was unreliable and violated his due-process rights; (3) erroneously denied his claim that the police purposely withheld profile photographs in violation of Brady v. Maryland, 373 U.S. 83 (1963) and Rule 16 of the Superior Court Rules of Criminal Procedure; (4) incorrectly rejected his claim of unlawful sentencing; and (5) wrongly dismissed his assertions of ineffective assistance of counsel.  Additionally, Spratt argued that the evidence presented at trial by the state was insufficient to convict him. 

After reviewing the record, the Supreme Court concluded that, because there was no evidence that the state orchestrated the chance encounter between Spratt and a witness, the hearing justice did not err in rejecting Spratt’s claim.  In regard to Spratt’s allegation that an in-court witness identification violated his due-process rights, the Court concluded that the identification was reliable and not tainted by any state coercion.  Concerning Spratt’s allegation that the state improperly withheld photographs, the Court determined the contention to be without merit.  The Supreme Court likewise found that the hearing justice did not err in dismissing Spratt’s allegations of unlawful sentencing, ineffective assistance of counsel, or insufficiency of evidence.  Accordingly, the Court affirmed the judgment of the Superior Court
Damaso Hernandez v. JS Pallet Co., Inc., No. 11-16 (April 12, 2012)
The defendant employer, JS Pallet Co., Inc., appealed from a Superior Court judgment awarding $7,360 in damages to the plaintiff, Damaso Hernandez, after a determination that the plaintiff’s tools were lost and damaged as a result of the defendant’s negligence.  On appeal, the defendant argued that the trial justice erred by: (1) denying the defendant’s motion for judgment as a matter of law; (2) permitting the testimony of a witness who was not disclosed in initial discovery; and (3) erroneously calculating damages based on the tools’ value to the plaintiff, rather than their fair market value. 

The Supreme Court concluded that the plaintiff presented sufficient evidence supporting his negligence claim, such that the trial justice’s denial of the defendant’s motion for judgment as a matter of law was not in error.  The Court also concluded that the trial justice did not err by allowing a witness to testify for the sole purpose of authenticating a document, which had been included in initial discovery.  Lastly, the Court held that the trial justice did not misconceive or overlook material evidence when calculating damages, and acted within the broad discretion afforded to her.     

Accordingly, the Supreme Court affirmed the judgment of the Superior Court.  
Ronald Koziol et al v. Peerless Insurance Company, No. 10-244 (April 11, 2012)
When the plaintiffs’ efforts to act as general contractors on a new home foundered because of faulty work performed by a framing subcontractor, they made a claim on the homeowner’s insurance policy issued to them by the defendant, Peerless Insurance Company.  The plaintiffs believed that the repairs were covered under what was titled the “Special Ultra Plus” endorsement, which they had purchased in addition to the policy’s base coverage. The defendant denied the claim, citing two exclusions in the policy.  Consequently, the plaintiffs filed a declaratory-judgment action against the carrier in the Providence County Superior Court.  A hearing justice determined that the terms of the policy were ambiguous, and according to this state’s settled law, entered judgment in favor of the plaintiffs. 

On appeal, the defendant argued that the trial justice erred in her determination that the insurance contract was ambiguous.  It argued that the Ultra Plus endorsement for ordinance or law compliance only applied to “covered losses,” and that the plaintiff’s loss was excluded from covered losses under a “faulty-workmanship” exclusion and an “ordinance or law” exclusion.  Peerless contended that the terms of these exclusions, when read along with the Special Ultra Plus coverage summary, were clear and unambiguous.

The Supreme Court held that the terms of the Ultra Plus endorsement’s coverage summary, when read in concert with the terms of the policy, created an ambiguity in the terms of the insurance contract.  The coverage summary simply stated that “Ordinance or Law Compliance (required after a loss)” was “Included.”  Furthermore, the Court held that even if an ordinary reader and purchaser could be expected to weave their way through the dense policy provisions to reach either of these exclusions, he or she could reasonably conclude that the repairs nonetheless were covered by the Special Ultra Plus endorsement.

Accordingly, the Court affirmed the judgment of the Superior Court. 
Steven Palin v. JoAnne Palin, No. 10-211 (April 11, 2012)
The defendant, JoAnne Palin, appealed from an amended decision pending entry of final judgment of divorce, arguing that loans she had taken out to pay for the college educations of her and the plaintiff’s, Steven Palin’s, children should have been considered marital debt by the trial justice.  The Supreme Court first rejected Steven’s argument that JoAnne’s appeal was not timely.  On the merits, the Court affirmed the decision of the Family Court not to consider the loans in question to be marital debt.  In so doing, the Court held that the trial justice’s exclusion of these loans from the marital estate was a sustainable exercise of his discretion to classify and assign marital debts.
Cheaters, Inc. et al. v. United National Insurance Co. et al, No. 09-312 (April 10, 2012)
The plaintiff corporations, Cheaters, Inc. (Cheaters) and Cheaters Holding Corp. (the Holding Corp.), appealed from the Superior Court’s grant of summary judgment in favor of the defendant, United National Insurance Co.  On appeal, the plaintiff corporations contended the following: (1) that the hearing justice erred in holding that the “On-Premises Endorsement” in the insurance policy at issue applied to the “indemnification contract between Cheaters and the Holding Corp.;” (2) that the hearing justice erred because her application of the On-Premises Endorsement renders the Additional Insured Endorsement an illusory contract; (3) that limiting liquor liability coverage to “on-premises losses only” violates public policy; and (4) that the policy’s liquor liability exclusion does not preclude insurance coverage with respect to Cheaters’ possible liability arising pursuant to “contracts of indemnification.”

After carefully considering the United National policy issued to Cheaters, the Supreme Court determined that the On-Premises Endorsement was unambiguous and applied to the insured contract.  Accordingly, it found that the hearing justice did not err in granting summary judgment in favor of the defendant based on the On-Premises Endorsement.  The Court additionally stated that there was no merit to the plaintiff corporations’ arguments that the On-Premises Endorsement rendered illusory the Additional Insured Endorsement and that limiting liquor liability coverage to “on-premises losses only” was against public policy.

The Supreme Court further determined that, due to the fact that the Court had already ruled that coverage was barred by the On-Premises Endorsement, it need not reach any further contentions concerning the liquor liability exclusion. 

For the reasons set forth in its opinion, the Supreme Court affirmed the Superior Court’s grant of summary judgment in favor of the defendant, United National Insurance Co.
State v. Santo Jensen, No. 10-334 (April 10, 2012)
The defendant, pursuant to our having granted his petition for a writ of certiorari, sought review of a Superior Court judgment that declared him to be in violation of the terms of his probation and that resulted in his being sentenced to serve the seven-year suspended sentence portion of a ten-year sentence that had been previously imposed pursuant to his conviction on one count of breaking and entering a dwelling.  On appeal, the defendant contended that the hearing justice acted arbitrarily and capriciously in finding a violation.  The defendant rested his appeal upon two contentions: (1) that the alleged victim’s positive identification of the defendant as the perpetrator and her related testimony was unreliable; and (2) that the fingerprint evidence utilized at the hearing was of questionable probative value. 

The Supreme Court ultimately held that the hearing justice did not act arbitrarily or capriciously in assessing the credibility of the victim or in adjudicating the defendant to be a probation violator.  First, the Court noted that, while the hearing justice had acknowledged certain inconsistencies in the victim’s testimony, he nonetheless found the victim’s identification of the defendant to be credible.  Second, the Court held that the totality of the evidence presented at trial, which included not only the fingerprint evidence but also other incriminating evidence, more than adequately supported the conclusion that the hearing justice did not act arbitrarily or capriciously in finding that the defendant had failed to keep the peace and remain on good behavior.

Accordingly, the Supreme Court affirmed the judgment of the Superior Court.
Sophie F. Bronowiski Mulligan Irrevocable Trust v. Todd Arthur Bridges, No. 11-20 (April 10, 2012)
The plaintiff appeals from a Superior Court judgment in its favor for $1,600, plus interest, in an action for breach of a residential lease agreement.  The plaintiff’s complaint alleged that the defendant breached his lease agreement by painting over expensive, historical wallpaper inside the plaintiff’s nineteenth century Benefit Street property and by failing to pay the last month’s rent.  The plaintiff’s complaint sought $1,600 in unpaid rent, $25,000 for repairs to the property, punitive damages, costs, and attorneys’ fees.   After a bench trial in the Providence County Superior Court, the trial justice found that the defendant breached the lease by painting portions of the premises, but she also ruled that the plaintiff had failed to prove by a preponderance of the evidence that it had incurred damages that exceeded the amount of unpaid rent. 

On appeal, the plaintiff alleged three errors:  (1) that the trial justice improperly forced a co-counsel and cotrustee for the trust, to withdraw from representation prior to testifying as a witness; (2) that the trial justice erred in her determination of damages; and (3) that the trial justice should have awarded attorneys’ fees in accordance with the lease agreement.   

The Supreme Court affirmed in part and vacated in part the judgment of the Superior Court.  The Court held that the trial justice erred when she determined damages because she appeared to have applied the “diminution of value” standard rather than the “cost of repair” standard, and that the “cost of repair” standard was supported by ample testimonial evidence.  The Court also held the lease was clear and unambiguous and that the defendant agreed to pay reasonable attorneys’ fees if legal action was required to obtain compensation for any damage to the property.  The trial justice’s award of $1,600 in unpaid rent, however, was affirmed.

Accordingly, this matter is remanded to the Superior Court for a hearing on the issues of damages and attorneys’ fees. 
Everett McCain v. The Town of North Providence, by and through its Mayor Charles Lombardi, No. 10-161 (April 5, 2012)
The defendant, the Town of North Providence (town), appealed from a judgment of the Superior Court granting declaratory relief in favor of the plaintiff, Everett McCain (McCain), finding McCain to be a “firefighter” for purposes of collecting benefits under Rhode Island’s “injured on duty statute,” G.L. 1956 chapter 19 of title 45 (IOD statute).  McCain, while not a “sworn firefighter” with the town’s fire department, served as a civilian “lineman” with the department’s communications division and was injured during the course of performing his “lineman” duties. 

On appeal, the town challenged the trial justice’s interpretation of the definition of “firefighter” as set forth in the IOD statute, primarily contending that the Legislature intended only “first-responders” to be afforded the statute’s protections.  In countering, McCain maintained that the statutory definition of “firefighter” at issue—which included within its purview “any person employed as a member of the fire department”—was clear and unambiguous.  Thus, McCain contended, the trial justice properly declared him to be a “firefighter” eligible to collect IOD benefits.

The sole question before the Court was one of statutory interpretation.  Upon reviewing the definition of “firefighter” set forth in § 45-19-1(c), the Court determined the definition to be clear and unambiguous, thus requiring the Court to apply the plain and ordinary meaning of the language at issue.   Upon such application to the facts at hand, the Court held that McCain, at the time of his injury, was indeed a “firefighter” injured in the course of his duties eligible to receive benefits in accordance with the IOD statute. 

Accordingly, the Court affirmed the judgment of the Superior Court.
James Casale v. City of Cranston, No. 10-162 (April 4, 2012)
On December 6, 2011, the defendant, City of Cranston (the defendant or the city), came before the Supreme Court on appeal from a Superior Court judgment in favor of the plaintiff, James Casale (the plaintiff), in an action for declaratory judgment.  The defendant argued that the trial justice erred by misinterpreting G.L. 1956 § 45-19-1.1, and finding that the city was not entitled to reimbursement from the proceeds of the plaintiff’s uninsured motorist benefits. 

The Supreme Court affirmed the Superior Court’s judgment in favor of the plaintiff.  The Supreme Court held that the defendant is not entitled to reimbursement from the injured-on-duty plaintiff’s uninsured motorist insurance proceeds when the plaintiff did not recover from the liable tortfeasor.  The Supreme Court concluded that the trial justice did not abuse his discretion in finding that the defendant is not entitled to reimbursement for the injured-on-duty payments paid to the plaintiff.
State of RI v. Jerry Lee Steele a/k/a Jerry King, No. 10-270 (March 30, 2012)
The applicant appealed from the denial of his application for postconviction relief.  On appeal, the applicant argued that his court-appointed attorney provided ineffective assistance of counsel while representing him at his postconviction-relief hearing.

The Supreme Court declined to pass upon the appellate argument, as it had not been presented to the Superior Court.

Accordingly, the Supreme Court affirmed the judgment of the Superior Court.
State of RI v. Yoneiry Delarosa, No. 11-12 (March 29, 2012)
The defendant, Yoneiry Delarosa (Delarosa), appealed from a Providence County Superior Court judgment adjudicating him a violator of probation.  Delarosa argued on appeal that the hearing justice erred (1) by crediting the testimony of Christina Bartley (Bartley) after she was offered a favorable plea disposition by the state to testify against him; (2) in overruling defense counsel’s objection to certain testimony by Bartley about which he had not been apprised prior to the hearing; and (3) by failing to allow defense counsel or Delarosa the opportunity to address the court prior to sentencing.

After careful review, the Court concluded that reasonably satisfactory evidence existed to support the hearing justice’s finding that Delarosa violated the terms and conditions of his probation.  The Court noted that the hearing justice acknowledged the state’s plea offer to Bartley and that she found Bartley to be credible despite the offer.  Thus, the Court refrained from “second-guessing” the hearing justice’s supportable credibility assessments.  The Court also held that the hearing justice did not err in allowing Bartley’s challenged testimony because no discovery violation by the state occurred, as contended by Delarosa. Lastly, the Court declined to extend the right of allocution to all probation violation cases.

Therefore, the Court held that the hearing justice acted neither arbitrarily nor capriciously when she adjudicated Delarosa a probation violator based on the record before her.  Accordingly, the Supreme Court affirmed the judgment of the Superior Court.
Jerry F. Ims v. Richard W. Audette, No. 10-271 (March 29, 2012)
The case arose after the plaintiff, Jerry Ims (Ims or the plaintiff)—acting in his capacity as successor trustee of the Claire B. Martel trust—filed a petition in the Tiverton Probate Court seeking an order allowing him to take such actions as he deemed necessary to preserve trust property—including removal of the life tenant, the defendant, Richard W. Audette (Audette or the defendant).  In his petition, Ims alleged that Audette persistently had failed to pay the utilities on the property, as was required by the trust, and that Audette’s failure had created hazardous conditions on the property.  On November 16, 2009, the Probate Court issued an order in conformity with the plaintiff’s petition.  The defendant responded by filing a complaint in Newport Superior Court, purportedly appealing from the Probate Court’s decision.  After conducting a hearing, the Superior Court determined that Audette had failed to comply with the requirements for filing a claim of appeal from the Probate Court, as set forth in G.L. 1956 Section 33-23-1, and consequently granted the plaintiff’s motion to dismiss. 

The defendant appealed the decision of the trial justice to this Court and presented three arguments for the Court’s review: (1) that his appeal from the Probate Court adequately was perfected because of his good-faith efforts to comply with § 33-23-1, and because his lack of financial means hindered his compliance; (2) that the Probate Court lacked subject matter jurisdiction to issue its order because he contends that he is the beneficiary of a charitable remainder trust and, therefore, the Superior Court and not the Probate Court has jurisdiction; and (3) that the trustee failed to notify the Office of the Attorney General of proceedings affecting a charitable remainder trust, rendering the Probate Court’s order null and void.

The Supreme Court affirmed the judgment of the Superior Court.  The Court determined that the Superior Court lacked jurisdiction to hear the defendant’s appeal because the defendant failed to submit a claim of appeal to the Probate Court or to certify to the Superior Court the record of the Probate Court proceedings, as mandated by § 33-23-1.  The Court declined to reach the remaining issues in the defendant’s appeal and remanded the case to the Superior Court.
State v. Christopher Smith, No. 10-367 (March 27, 2012)
On April 6, 2010, a jury convicted Christopher Smith (Smith or the defendant) of three counts of first-degree child molestation sexual assault and two counts of second-degree child molestation sexual assault for a series of incidents involving a thirteen-year-old girl.  The defendant was sentenced to concurrent terms of fifty years, with twenty-five years to serve and twenty-five years suspended, with probation, on the three counts of first-degree child molestation, and thirty years, with twenty-five years to serve and five years suspended, with probation, for the two counts of second-degree child molestation.  The defendant appealed his conviction and asserted that the trial justice erred by: (1) denying the defendant’s motion for a new trial, which was based on his argument that the verdict was against the weight of the evidence; and (2) permitting the state, over the defendant’s objection, to cross-examine Smith about weapons training he received while in the military. 

The Supreme Court affirmed the convictions.  The Court held that the trial justice performed an exhaustive review of the evidence presented at trial, and that he was well within his discretion in determining that the complainant was believable and that the defendant was not a credible witness.  The Court also held that the trial justice properly exercised his discretion under Rule 403 of the Rhode Island Rules of Evidence in allowing the state to pose a single question to Smith regarding weapons training he received while in the National Guard.  The Court determined that the state’s question was relevant to rebut defense counsel’s assertion that the victim inexplicably had delayed reporting the molestation.  The question tended to show the reasonableness of the victim’s fear of Smith, who had threatened to kill her, and the question posed no significant risk of inflaming the passions of the jury.

In re Gabrielle D., No. 2011-40 (March 26, 2012)
The respondent appealed from a Family Court termination of parental rights decree with respect to his daughter.  On appeal, the respondent argued the following: (1) that the justice of the Family Court who presided over the termination of parental rights trial committed reversible error in finding that DCYF made reasonable efforts to reunify Armand and Gabrielle; (2) that the trial justice erred in finding support for his determination that Armand had abandoned Gabrielle; (3) that the trial justice made no factual findings with respect to certain of his conclusions; and (4) that the evidence presented at the hearing failed to support certain conclusions by clear and convincing evidence.

The Supreme Court affirmed the Family Court judgment terminating the respondent’s parental rights with respect to his daughter. 

The Court first held that DCYF was not required to provide certain services to the respondent in view of the fact that he was already receiving such services from other providers.  The Court further held that the trial justice did not err in determining that the efforts made by DCYF towards reunification were reasonable.  The Supreme Court declined to reach the respondent’s further contentions on appeal since its decision concerning DCYF’s reasonable efforts made doing so unnecessary.
State v. Isabel Taveras, No. 09-102 (March 22, 2012)
This case came before the Supreme Court on November 30, 2011, on appeal by the defendant, Isabel Taveras (defendant or Taveras), from a judgment of conviction after a bench trial for one count of possession of an enumerated quantity of cocaine, for which she received a ten-year suspended sentence, with probation.  On appeal, the defendant challenges the denial of her motion to suppress.  The defendant alleges that the arresting police officers violated her Fourth Amendment rights when they detained her unlawfully at a traffic stop and conducted a pat-down search without a reasonable articulable suspicion that she might be armed and dangerous.  The defendant also alleges that the motion to suppress should have been granted because the officers exceeded the scope of a permissible pat-down search by directing her to unzip and open her jacket. 

The Court held that the trial justice did not abuse his discretion in denying the defendant’s motion to suppress because, based on the totality of the circumstances, the police officers possessed sufficient reasonable and articulable suspicion to conduct an investigatory stop of the vehicle and to undertake a limited pat-down search of the defendant.  The Court also concluded that the officer did not exceed the permissible scope of a Terry-style pat-down search when he asked the defendant to open her jacket because, based on the circumstances, he had reasonable suspicion that the defendant might be armed.  The officers gave credible testimony that when the cruiser approached the vehicle, they saw the defendant reach down to the floor and stuff something into the left side of her jacket.  The Court concluded that asking the defendant to open her coat was a minimally intrusive method to determine whether she was concealing a weapon or other dangerous instrumentality while maintaining officer safety.  According, the Court affirmed the judgment of conviction.
State v. Robert E. Payette, No. 10-151 (March 14, 2012)
The defendant, Robert E. Payette (Payette), appealed from a Superior Court judgment of conviction for first-degree murder, for which he received a sentence of life imprisonment.  On appeal, Payette contended that the trial justice erred (1) by instructing the jury that malice may be inferred where there is a disparity in the size or strength between the victim and the defendant; and (2) by denying his motion for a new trial. 

After reviewing the record, the Supreme Court concluded that evidence of a twenty-two- year / sixteen-pound disparity between Payette and the victim, coupled with the victim’s extreme intoxication, was sufficient evidence to justify an instruction on inferred malice because of a disparity in size or strength.  The Supreme Court also held that the trial justice properly articulated his reasoning for denying Payette’s motion for a new trial, and concluded that the trial justice did not overlook or misconceive material evidence in denying the motion.

Accordingly, the Supreme Court affirmed the judgment of conviction.  
William J. Medeiros et al v. Bankers Trust Company et al., No. 10-145 (March 13, 2012)
The plaintiff appealed from a judgment of the Superior Court for Washington County finding that the defendant and its assigns were the record title holders of a parcel of real estate located in the Town of North Kingstown.  On appeal, the plaintiff alleged that his due-process rights were violated because he was not notified nor afforded a chance to respond before losing title to the property as a result of a tax sale and subsequent foreclosure of his redemption rights by virtue of a Superior Court decree.  The plaintiff also argued that Rule 5(a) of the Superior Court Rules of Civil Procedure entitled him to receive notice of additional Superior Court proceedings involving the property.    
  
The Supreme Court held that because the plaintiff defaulted at an earlier proceeding to foreclose his right of redemption (after a tax sale of the property), the final decree entered against him at the foreclosure hearing was absolute.  The Court ruled that this decree forever barred him from asserting any subsequent claim to the property—including his claim set forth in the instant action.  The Court further held that a prior Superior Court judgment appearing to “re-vest” the property back to the plaintiff was made in error and therefore was void.  Finally, the Supreme Court concluded that the plaintiff’s due-process rights were not violated because he had properly received notice of both the impending tax sale of the property and the subsequent petition to foreclose his right of redemption.   

Accordingly, the Supreme Court affirmed the judgment of the Superior Court.
State v. Lewis T. Quattrucci, No. 10-97 (March 9, 2012)
After failing two field sobriety tests, the respondent, Lewis T. Quattrucci, was arrested for driving under the influence, and later was charged with refusing to submit to a chemical test.  The refusal charge was dismissed by a magistrate of the Traffic Tribunal on the ground that Mr. Quattrucci had not been afforded a confidential telephone call, as provided by G.L. 1956 § 12-7-20.  The state appealed, and the Traffic Tribunal appeals panel upheld the magistrate’s order dismissing the refusal charge.  The District Court later affirmed the appeals panel’s decision.

The Supreme Court first held that § 12-7-20 applies to civil refusal proceedings, and that Mr. Quattrucci was entitled to the use of a telephone under this statute’s provisions.  The Court, however, also held that the confidentiality requirement of the statute only attaches to a telephone call when the purpose of that call is to speak to an attorney.  The Court noted that Mr. Quattrucci did not present any evidence at his hearing to show that the purpose of his telephone call was to secure or to speak with an attorney.  Therefore, the Court concluded that the Traffic Tribunal magistrate committed an error of law in ruling that Mr. Quattrucci’s rights were violated under § 12-7-20.  

Based on these conclusions, the Supreme Court quashed the judgment of the District Court and vacated the dismissal of Mr. Quattrucci’s refusal charge.
State v. Allen Wray, No. 10-209 (March 9, 2012)
After being convicted of two counts of first-degree robbery, the defendant, Allen Wray, appealed.  He argued on appeal that the trial justice erred in denying his motion for a new trial because the eyewitness identifications that led to his conviction were unreliable and not substantial enough to prove beyond a reasonable doubt that he committed the robberies in question.  The defendant additionally contended that the trial justice committed reversible error by allowing a trial witness to vouch for, and bolster the credibility of, the two eyewitnesses.

With respect to the denial of the defendant’s motion for a new trial, the Supreme Court noted that the defendant’s assertion that the eyewitness identifications were unreliable went to the witnesses’ credibility—an issue for the jury.

The Court ultimately held that the trial justice did not overlook or misconceive any material evidence and did not err in denying the defendant’s motion for a new trial.  The Court also held that no impermissible bolstering occurred because the witness in question—a police officer—rather than giving his opinion on the ability of another witness to describe the defendant accurately, was asked to compare independently the physical description of the defendant given in police-radio dispatches with the actual appearance of the defendant.  Ultimately, the Supreme Court affirmed the judgment of the Superior Court in all respects.
State v. Jose Vieira, No. 09-380 (March 7, 2012)
This defendant, Jose Vieira, appealed from a judgment of conviction on five counts of second-degree child molestation.  On appeal, the defendant argued that the trial justice erred in: (1) denying his motion to pass the case because of the prosecutor’s remarks during final argument and (2) admitting hearsay testimony of the complainant’s mother about statements the complainant made to her.  

The Supreme Court held that the trial justice did not err when she denied the motion to pass because the prosecutor’s comments during closing argument represented reasonable inferences based on evidence that had been properly admitted at trial.  Furthermore, the comments were not highly inflammatory and did not contain extraneous information not before the court.  Therefore, the Court held that the trial justice was not clearly wrong when she denied the motion to pass.  The Court held that the issue of hearsay testimony was not properly preserved for appellate review.

Accordingly, the Supreme Court affirmed the conviction.
State v. Kimberly St. Michel, No. 10-121 (March 6, 2012)
The defendant, Kimberly St. Michel, appealed from a Superior Court judgment of conviction for embezzlement of funds in excess of $100.  On appeal, the defendant advanced two arguments:  First, she contended that the trial justice erred when he prevented defense counsel from eliciting the defendant’s own out-of-court statement that “she didn’t do any of this” through the testimony of her employer, the complaining witness.  She argued that the statement was not hearsay because it was not offered for the truth of the matter asserted, but rather to impeach her employer’s prior testimony that she “had no explanation” for the missing money or the suspicious paperwork.  Second, she asserted that the trial justice erred when he denied the defendant’s motion for a new trial because he overlooked or misconceived material evidence and because the jury’s verdict failed to do substantial justice.

The Supreme Court held that the trial justice did not abuse his discretion when he truncated defense counsel’s cross-examination of the defendant’s employer because the defendant’s out-of-court claim of innocence did not explain, contradict, or discredit the witness’s prior testimony; therefore it was not proper impeachment material.  Furthermore, because the defendant elected to exercise her Fifth Amendment right not to testify, the Court held that the trial justice correctly ruled that the statement was inadmissible hearsay according to State v. Harnois, 638 A.2d 532 (R.I. 1994).     

With respect to the motion for a new trial, the Court held that the trial justice committed neither clear error nor overlooked or misconceived evidence in making his ruling.  The trial justice carefully adhered to the appropriate standard; he made a detailed review of the testimony of the three witnesses, the documentary evidence, and the arguments of the parties, passed favorably on the credibility of each witness, and concluded that he agreed with the jury’s verdict.  Therefore, there was no error.

Consequently, the Supreme Court affirmed the judgment of conviction. 
Kenneth S. Rice v. State of Rhode Island, No. 09-344 (March 6, 2012)
The applicant, Kenneth S. Rice (Rice), appealed from a judgment of the Superior Court dismissing his application for postconviction relief.  On appeal, Rice challenged the hearing justice’s determination that certain decisions by trial counsel during Rice’s child molestation trial did not rise to the level of constitutionally deficient representation.  In his postconviction-relief application, Rice maintained that his trial counsel’s assistance was ineffective because (1) he did not properly investigate certain medical opinions or call a medical-expert witness to testify; (2) he misguidedly called a nurse practitioner as a defense witness to establish inconsistencies in the victim’s testimony although doing so allowed the state to elicit corroborating testimony on cross-examination; and (3) he mistakenly called an employee of the Department of Children, Youth and Families as a witness to establish prior inconsistent statements by the victim although this likewise “opened the door” for the state to establish consistencies that would otherwise have been excluded.  The hearing justice, after reviewing the record and crediting trial counsel’s testimony at the postconviction-relief hearing, determined these decisions to be tactical in nature and not rising to the level of ineffective assistance.  Rice maintained on appeal that the hearing justice erred in so doing.

After reviewing the record, the Supreme Court concluded that the decisions at issue that Rice’s counsel made during trial were indeed tactical and not objectively unreasonable under the circumstances.  Thus, the Supreme Court concluded that Rice failed to meet his burden in establishing his trial counsel’s ineffectiveness pursuant to the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984).  Finding no error on the part of the hearing justice in his denial of Rice’s application, the Supreme Court accordingly affirmed the judgment of the Superior Court.
Yi Gu v. Rhode Island Public Transit Authority et al., No. 2010-73 (March 5, 2012)
The plaintiff, Yi Gu (the plaintiff or Yi Gu), appealed the trial justice’s denial of her motion for a new trial after a jury verdict in favor of the defendants, Rhode Island Public Transit Authority (RIPTA) and Edmund E. Hathaway (Hathaway) (collectively, the defendants), finding that they were not negligent.  The plaintiff, who was struck by a RIPTA bus while crossing the street at the intersection of Waterman Street and North Main Street in Providence, averred that the trial justice erred by failing to grant her motion for a new trial based on the weight of the evidence, and based on errors that she alleges occurred during a jury view of the scene of the collision that gave rise to the underlying complaint. 

The Supreme Court vacated the judgment of the Superior Court and remanded the case for a new trial.  The Court concluded that, when ruling upon the plaintiff’s motion for a new trial, the trial justice erroneously considered a jury view and demonstration as evidence, despite the well-settled Rhode Island rule that a jury view does not constitute evidence.  The Court additionally held that the proper prophylaxes meant to safeguard the integrity of the view were absent in this case.
State v. David Dubois, No. 09-292 (February 20, 2012)
This case came before the Supreme Court on October 26, 2011, on appeal by the defendant, David Dubois (defendant or Dubois), from a judgment of conviction for five counts of second-degree child molestation.  He was sentenced to five concurrent terms of thirty years at the Adult Correctional Institutions, twelve years to serve and the balance suspended, with probation.  On appeal to this Court, Dubois contends that the trial justice erred by: (1) denying the defendant’s motions for a mistrial; (2) limiting defense counsel’s direct examination of two witnesses; and (3) allowing testimony concerning several uncharged incidents of sexual assault in violation of Rules 403 and 404(b) of the Rhode Island Rules of Evidence. 

The Court held that the trial justice did not err in denying the defendant’s motions to pass the case because the trial justice sufficiently assessed the potential prejudicial impact of the statements, provided adequate cautionary instructions, and concluded that the statements did not so inflame the passions of the jury so as to prejudice the defendant. 

The Court also concluded that the trial justice properly limited the defendant’s examination of two defense witnesses because the defendant failed to make any offer of proof or good-faith showing that the proposed line of inquiry was factually-based or would lead to relevant evidence.  Moreover, the Court was satisfied that the defendant had ample opportunity to cross-examine the various witnesses at trial.

Lastly, the Court held that although the trial justice erred when he allowed testimony concerning several incidents of uncharged sexual misconduct for the purpose of demonstrating the defendant’s “lewd disposition,” the evidence nonetheless was admissible for the limited purpose of demonstrating the defendant’s sexual intent, as instructed by the trial justice.  Additionally, the Court found that the trial justice provided adequate cautionary instructions about the limited purpose for which the jury could consider the testimony, and that he appropriately excluded testimony of an incident that was not sufficiently similar to the crimes at trial.  Accordingly, the Supreme Court affirmed the Superior Court’s judgment of conviction.
State v. John Lomba, No. 10-96 (February 13, 2012)
The circumstances of this case constitute but one chapter in what appears to have been an ongoing feud between the defendant and the complaining witnesses.  The increasing enmity between the parties erupted during a late-night brawl in July 2008.  As a result, the state charged the defendant with three counts of assault with a dangerous weapon and one count of simple assault.  After a jury trial in the Kent County Superior Court, he was acquitted of the three felony counts, but convicted of simple assault.  The trial justice sentenced the defendant to one year at the Adult Correctional Institutions, with ninety-days to serve and nine months suspended with probation. 

On appeal, the defendant advances two arguments.  First, he contends that the trial justice erred when he denied his motion for judgment of acquittal on the charge of simple assault because the state failed to introduce evidence of malice or wantonness.  Second, the defendant argues that the cumulative effect of the trial justice’s evidentiary rulings deprived him of his constitutional right to present a full and fair defense.  He contends that the trial justice erred by improperly limiting his attempts to delve into the relationship between the parties and by ruling that his out-of-court statement to a police officer about being the victim of hate crime in 1998 was inadmissible hearsay.

The Supreme Court held that, considering, as it must, all the evidence in the light most favorable to the state, there was sufficient evidence from which a reasonable juror could conclude beyond a reasonable doubt that the defendant acted with malice when he struck one of the complaining witnesses in the shoulder during the fight in an attempt to reach the door of his vehicle. Therefore, the trial justice did not err when he denied the defendant’s motion for judgment of acquittal.  Additionally, the Court held that there was no abuse of discretion when the trial justice curtailed the defendant’s cross-examination of a complaining witness about an encounter earlier in the day, or when he prohibited a police officer from testifying to the defendant’s out-of-court statement about why he may have held a particular state of mind at the time of the alleged offenses.  Furthermore, the Court held that the defendant received precisely what he asked for with respect to a jury instruction regarding the existence of mutual preliminary injunctions between the defendant and the complaining witnesses and an in camera review of documents from the Department of Elderly Affairs.  Therefore, the Court held that there was no error. 

Accordingly, the Court affirmed the defendant’s conviction.
In re Town of Little Compton, No. 11-101 (February 9, 2012)
Before the Supreme Court was a request from the Unauthorized Practice of Law Committee (committee) for guidance on whether nonlawyer union representatives engage in the unauthorized practice of law in violation of G.L. 1956 § 11-27-2 when representing unions at public labor arbitration hearings. 

After receiving a complaint filed by the Town of Little Compton (the town) against the Little Compton Firefighters Local 3957 (the union), the committee conducted an investigational hearing on the matter.  In its complaint, the town contended that the union or its representative had engaged in the unauthorized practice of law in violation of § 11-27-2 when the union allowed its nonlawyer business agent to represent it at a labor arbitration hearing.  The committee’s report to the Court ultimately concluded that the union representative’s actions on behalf of the union constituted a “technical violation” of the statute governing the unauthorized practice of law.  Mindful that this type of lay representation of unions in labor arbitrations is a common practice in Rhode Island, the committee petitioned the Court for guidance on how to proceed in the matter.  After reviewing the committee record, the parties’ written submissions and oral arguments, and the many amicus briefs filed, the Supreme Court declined to limit this particular practice at this point in time. 
Joseph P. Esposito v. Sharon Esposito, No. 10-328 (January 30, 2012)
The defendant, Sharon Esposito (Sharon), appealed from a Family Court order denying her motion to reform or vacate the court’s prior approval of a property settlement agreement (the Agreement).  At the crux of the dispute was the Agreement Sharon entered into with her former husband, the plaintiff, Joseph P. Esposito (Joseph) in connection with their divorce. Joseph and Sharon entered into the Agreement to equitably divide their marital estate.  The Agreement provided how the marital assets would be divided, with 55 percent assigned to Sharon and 45 percent to Joseph. 
 
The controversy centered on a single asset; a minority interest in Prime Time Manufacturing, Inc., that had been awarded to Joseph.  After the Agreement was executed, but before final judgment was entered in the divorce, Joseph learned that his 25 percent share in Prime Time was worth significantly more than the value upon which the parties had agreed.  Joseph did not notify Sharon of this change in financial circumstances.  After learning about the increase in the value of Joseph’s share in the company, Sharon filed a motion under Rule 60(b) of the Family Court Rules of Procedure for Domestic Relations.

A trial justice of the Family Court ruled that there was a lack of evidence that at the time the Agreement was entered into and approved, the value of Prime Time exceeded that which had been agreed upon by the parties.  He also found that Sharon had failed to produce any evidence that Joseph was privy to any negotiations for the sale of Prime Time at or before the execution of the Agreement.

On appeal, Sharon argued the justice erred when he found that there was no mutual mistake about the value of Joseph’s share in Prime Time when the parties executed the Agreement.  Second, Sharon contended that the justice erred because the proper date for equitable distribution of the marital assets was when final judgment was entered and not when the Agreement was approved by the trial court.  Lastly, Sharon maintained that the justice erred because he failed to recognize the special status of spousal agreements.  

The Supreme Court held that no mutual mistake of fact existed between the parties concerning the value of Joseph’s minority interest in Prime Time at the time the Agreement was executed.  The Court also held the terminal date for equitable distribution was the day that the Agreement was executed and formally approved by the Family Court.  Finally, the Court held that although Joseph breached his fiduciary duty to inform Sharon of his change in financial circumstances, any property rights Sharon had in Joseph’s share of Prime Time were foreclosed when the Agreement was executed and approved by the court.

Accordingly, the Court affirmed the order of the Family Court.
State v. Heriberto Rosario, No. 09-110 (January 24, 2012)
The defendant appealed from a judgment of conviction on two counts of first-degree child molestation, which judgment was entered after a jury found the defendant guilty on both counts.  On appeal, the defendant argued that the trial justice erred in failing to grant his motion for a new trial because, according to the defendant, the evidence was simply too contradictory and incredible to provide sufficient support for the verdict.

After thoroughly reviewing the record and the trial justice’s articulated reasoning in ruling on the motion, the Supreme Court held that the trial justice did not overlook or misconceive material evidence in denying the defendant’s motion for a new trial. 

Accordingly, the Supreme Court affirmed the judgment of conviction.
The Narragansett Electric Company d/b/a National Grid v. Rhode Island Public Utilities Commission, No. 10-142 (January 23, 2012)
This case was before the Supreme Court as a statutory petition for certiorari filed by National Grid (or the petitioner) pursuant to G.L. 1956 § 39-5-1.  The petitioner sought review of the Rhode Island Public Utilities Commission’s (PUC) decision in docket No. 4065, in which the PUC denied a requested rate increase and only approved half the requested incentive compensation expense.

The petitioner argued that the PUC was unreasonable when it chose a capital structure with a debt to equity ratio of 42.75 percent because the only evidence in the record was that a reasonable equity component would be within the range of 45-50 percent.  The petitioner next asserted that the proposed incentive compensation expense consisted of wages and benefits that were market competitive, offered flexibility and choice, and supported a high performance culture by directly linking performance to financial rewards. 

The Supreme Court vacated that part of the PUC’s decision that established the capital structure of the petitioner.  The Court held that the PUC failed to provide a sufficient evidentiary foundation for its decision to factor in the capital structure of the twice removed, foreign parent to determine an appropriate capital structure for National Grid. 

The Supreme Court affirmed the PUC’s decision disallowing half the incentive compensation expense based on the considerable discretion given to the PUC and the substantial evidence in the record.  The Court held that the PUC’s decision that the expense was unreasonable and excessive because there was insufficient evidence of a direct benefit to taxpayers was fairly and substantially supported by legal evidence.   

The Court remanded the case to the PUC with instructions that it conduct hearings to determine the appropriateness of National Grid’s current capital structure and to consider other evidence in determining an appropriate capital structure for National Grid.   
David Higgins v. Rhode Island Hospital et al., No. 10-260 (January 18, 2012)
The plaintiff, David Higgins, appealed from the Superior Court’s entry of summary judgment in favor of the defendants, Rhode Island Hospital and U.S. Securities Associates, Inc., on the grounds that the firefighter’s rule barred the plaintiff’s claims.  Before the Supreme Court, the plaintiff argued that the Superior Court erred as a matter of law in finding that the firefighter’s rule barred his claims against the defendants.  Specifically, the plaintiff argued that there was no emergency that brought him to the place where he was injured, and that his efforts to assist a nurse with an unruly patient were not a requirement of his job.

The Court rejected the plaintiff’s argument that there was no emergency that called him to the place where he was injured because he was responding to a citizen in distress who was at risk of being injured by a disorderly patient.  Additionally, the Court rejected the plaintiff’s argument that his efforts to assist the nurse were not a part of his job because he was on duty at the time of his injury, he received injured-on-duty benefits under G.L. 1956 § 45-19-1, and he reasonably anticipated the risks that were posed by an encounter with an unruly patient.

The Court concluded that the plaintiff was injured in a reasonably anticipated incident during the course of his employment duties, and that this incident was a new emergency separate and apart from the original emergency that brought the plaintiff to the hospital.  Therefore, the Court held that the trial justice did not err when he ruled that the plaintiff’s claims were barred by the firefighter’s rule.

Accordingly, the Court affirmed the judgment of the Superior Court.
State v. George Bouffard, No. 09-343 (January 17, 2012)
The defendant, George Bouffard (Bouffard), appealed from a judgment of the Superior Court partly denying his motion to correct his sentence under Rule 35 of the Superior Court Rules of Criminal Procedure.  On appeal, Bouffard challenged the hearing justice’s re-bundling of his sentencing scheme upon the determination that the sentence at issue was illegal or illegally imposed.  Specifically, Bouffard maintained that the hearing justice lacked the authority to correct his sentence because the hearing justice did not impose the original sentence in question.  Bouffard also argued that the hearing justice, in re-bundling the sentencing package, failed to conform to the original sentencing intent of the magistrate who imposed the initial sentence based on Bouffard’s probation violation.  Lastly, Bouffard maintained that the seven-year sentence imposed upon re-bundling no longer “fit the crime,” since prior to his Rule 35 motion, the charge underlying his probation violation had been dismissed.

After reviewing the record, the Supreme Court concluded that the hearing justice indeed had the authority under State v. Goncalves, 941 A.2d 842 (R.I. 2008), to re-bundle Bouffard’s sentencing scheme to effectuate the original intent of the sentencing magistrate.  The Court further concluded that the hearing justice properly assessed and conformed to the magistrate’s original sentencing intent in restructuring Bouffard’s sentencing package and that the hearing justice considered the dismissal of the underlying charge in his analysis.   Finding no error in the hearing justice’s re-bundling effort, the Court declined to address whether the original sentence at issue was illegal or illegally imposed.

Accordingly, the Court affirmed the judgment of the Superior Court.
David Henderson v. Nationwide Insurance Company, No. 10-374 (January 12, 2012)
The defendant, Nationwide Insurance Company, appeals from the Superior Court’s entry of final judgment in favor of the plaintiff, David Henderson.  Henderson was unloading luggage from a limousine that he had driven to Logan Airport when he was struck by a car and severely injured.  The accident occurred in the course of his employment as a professional limousine driver while he was taking passengers from Newport, Rhode Island, to Logan Airport in Boston, Massachusetts.  Henderson settled claims against both the uninsured motorist that struck him as well as his employer’s insurance company, but nonetheless remained less-than-fully compensated for his injuries.  As a result, Henderson filed an “underinsured-motorist” claim with Nationwide under his personal automobile insurance policy.  Nationwide denied the claim, citing two exclusions from the policy’s provisions for uninsured motorist coverage. One provision excluded from coverage injuries caused by an uninsured motorist during the use of a motor vehicle by the policyholder to drive persons or property “for a fee”; a second exclusion purported to exclude coverage for injuries suffered while occupying a motor vehicle “furnished for the regular use” of the insured, but not insured for liability coverage under the policy.   

Nationwide filed a motion for summary judgment in the Superior Court, which was denied.  The motion justice found that the uninsured motorist coverage exclusions were overbroad and void in light of the public policy supporting Rhode Island’s uninsured motorist coverage statute, G.L. 1956 § 27-7-2.1.  One year later, Nationwide filed a motion to renew its motion for summary judgment.  Although the motion justice agreed to reconsider her decision, she again denied Nationwide’s motion for summary judgment on the same grounds.  On October 1, 2010, a final judgment was entered in favor of Henderson for the policy limit of $25,000.

On appeal, Nationwide alleges that the motion justice erred by finding that the policies were inconsistent with public policy.  After reviewing the record, the arguments of the parties, and the relevant precedent, the Supreme Court held that the “for a fee” exclusion was both unambiguous and not inconsistent with public policy.  The Court held that the plain language of the provision was not reasonably susceptible to multiple meanings, and clearly applied to the facts of this case.  Furthermore, the Court held that while § 27-7-2.1 favors indemnification, is not a form of personal protection that protects insureds under all circumstances, and that insurance companies may craft some reasonable exceptions to afford themselves a degree of financial protection.  The Court reasoned that the facts here more closely resembled those in cases in which it had previously upheld uninsured-motorist exclusions, and distinguished the “for a fee” exclusion from provisions that purported to reduce the amount of coverage below the statutory minimum or appeared to vary the broad definition of uninsured motor vehicle.  Because the Court resolved the dispute based on the “for a fee” exclusion, it did not reach the parties’ arguments with respect to the “regular use” exclusion. 

Accordingly, the Court vacated the judgment of the Superior Court and remanded the matter to the Superior Court for entry of judgment in favor of Nationwide.     
State v. Gilbert Delestre, No. 09-175 (January 12, 2012)
The defendant appealed from a judgment of conviction that reflected the jury’s verdict that he was guilty of second-degree murder and conspiracy to commit the offense of murder.  On appeal, the defendant contended (1) that the trial justice erred in her instruction to the jury concerning the concept of aiding and abetting and (2) that the trial justice erred in declining to give a unanimity instruction to the jury with respect to the theories underlying the murder charge.  

With respect to the trial justice’s aiding-and-abetting instruction, the Supreme Court ruled that the instruction that “[a] person who aids or abets is held responsible for the natural, or reasonable, or [probable] consequences of any act if he knowingly and intentionally aided or which he assisted or participated” did not violate the defendant’s due process rights because it is consistent with the intent necessary for aiding and abetting in Rhode Island.  The Supreme Court also ruled that the trial justice’s aiding-and-abetting instruction was not conclusive or burden-shifting because an ordinary, intelligent lay juror would not interpret it as such when the instructions were considered in their entirety.

In addition, the Supreme Court ruled that the trial justice did not err in declining to instruct the jury as to unanimity concerning the theory underlying second-degree murder because a jury must decide unanimously only the elements of a crime and not the underlying theories. 

Accordingly, the Supreme Court affirmed the judgment of the Superior Court.

Patricia Lett v. Louis J. Giuliano, Jr., 09-118 (January 9, 2012)
This case came before the Supreme Court on appeal from a Superior Court judgment in favor of the plaintiff, Patricia Lett (plaintiff or Lett), declaring that the estate successfully had proven the will of Louis J. Giuliano, Sr. (Giuliano, Sr. or testator).  On appeal, the defendant averred that the trial justice erred by: (1) denying the defendant’s motion to dismiss based on the plaintiff’s failure to provide the Superior Court with a complete record of the Probate Court proceedings; (2) refusing to grant the defendant’s motion for a new trial because there was no proof of testamentary capacity and age, and declining to instruct the jury on those issues; (3) denying the defendant’s motion for judgment as a matter of law after the plaintiff failed to prove testamentary capacity and proper execution of the will; and (4) excluding from evidence an inventory of Giuliano, Sr.’s estate. 

The Court held that the plaintiff’s failure to submit a single transcript of dubious relevance did not constitute one of the rare instances warranting dismissal of the plaintiff’s appeal under G.L. 1956 § 33-23-1.  The Court further held that there was sufficient and unrefuted evidence in the record tending to prove that the testator possessed testamentary capacity when he executed his will, and that the trial justice did not err by declining to instruct the jury on that issue or by denying the defendant’s motion for judgment as a matter of law.  The Court also concluded that the trial justice’s decision to exclude from evidence an inventory of the testator’s estate was well within the trial justice’s discretion, especially given that the defendant had not made even a threshold showing of relevance.  The Supreme Court affirmed the judgment of the Superior Court that the will successfully had been proved.
Empire Acquisition Group, LLC v. Atlantic Mortgage Company, Inc., No. 10-66 (January 9, 2012)
The plaintiff, Empire Acquisition Group, LLC, appealed from the grant of summary judgment in favor of the defendant, Atlantic Mortgage Company, Inc.  The plaintiff argued that summary judgment was improperly granted in favor of the defendant because genuine issues of material fact were in dispute.  In response, the defendant asserted that no genuine issues of material fact existed concerning the subject agreement’s “expiration pursuant to its own terms.”  To support this argument, the defendant pointed to the plaintiff’s failure to produce any evidence explaining why it did not timely close or proving that it had been acting in good faith.

The Supreme Court affirmed the judgment of the Superior Court.  The Court reasoned that the defendant’s inexplicable inaction after the final scheduled closing date was unreasonable in light of the parties’ established course of dealings under the agreement.  Further, the Court pointed toward the plaintiff’s complete lack of evidence explaining its silence or proving its contention that it was at all pertinent times ready, willing, and able to perform under the agreement.  Accordingly, the Court affirmed the Superior Court’s grant of summary judgment in favor of the defendant on the plaintiff’s complaint, as well as on counts 1 and 2 of the defendant’s counterclaim.
State v. Giulio Lancellotta, No. 10-425 (January 5, 2012)
The defendant, Giulio Lancellotta, sought review of a Superior Court adjudication of probation violation that resulted in his being ordered to serve seven years of a previously imposed twelve-year sentence for second-degree robbery.  On July 21, 2008, the state alleged that the defendant had violated the terms and conditions of his probation.  More than one month later, a probation-violation hearing was held and a magistrate of the Superior Court found that the defendant had failed to keep the peace and remain on good behavior.  This case came before the Court on a writ of certiorari.

Before the Court, the defendant argued that the magistrate erred when he (1) denied the defendant’s request for a continuance to secure new counsel; (2) acted arbitrarily and capriciously in finding a violation; and (3) imposed a sentence greater than that which had been offered as part of a plea bargain before the hearing. 

The Supreme Court held that the magistrate appropriately balanced the public’s interest and the presumption favoring the defendant’s right to the counsel of his choice.  The magistrate found that the defendant had waited over a month to request a new attorney, that the public defender assigned to him was ready to proceed, that no other trial counsel was ready to enter an appearance, and that the defendant also waited until all the state’s witnesses were present and ready to go before he asked the court for new counsel.  Additionally, the Court held that the magistrate acted neither arbitrarily nor capriciously when he found that the evidence presented at the probation-violation hearing was sufficient to demonstrate that the defendant had violated the terms and conditions of his probation. Lastly, the Court held that the magistrate acted well within the wide discretion granted to him by law when he determined the proper sentence to exact upon the defendant because the sentence was guided principally by the nature of the first offense.  

Accordingly, the Court affirmed the judgment of the Superior Court. 
State v. Adrian Shepard, No. 10-59 (December 27, 2011)
The defendant, Adrian Shepard, by way of a petition for writ of certiorari, sought review of a Superior Court judgment that declared him to be in violation of the terms of his probation and revoked three years of an eight-year suspended sentence.  The defendant also appealed from a Superior Court order denying his motion to correct and reconsider his sentence.  The defendant first argued that the hearing justice abused his discretion in finding that the defendant violated the terms of his probation because the evidence presented at the hearing was insufficient to support that conclusion.  The defendant also argued that the hearing justice erred when he denied his motion for reconsideration of the drastic remedy of revocation.

The Supreme Court affirmed both the finding of the probation violation and the imposition of three years of the defendant’s suspended sentence.  First, the Court noted that the hearing justice acknowledged inconsistencies in the complaining witness’s testimony, but had, nonetheless, found her to be credible.  Second, the Court held that the hearing justice had made sufficient detailed findings to support, by a reasonable satisfaction, his conclusion that the defendant violated his probation by not keeping the peace and by not being of good behavior.  Finally, the Court declared that the hearing justice’s imposition of three years of the defendant’s suspended sentence had been carefully considered and, thus, held that the revocation was an appropriate consequence to the defendant’s continuous refusal to adhere to the terms of his probationary period.
State v. Miguel A. Navarro, No. 10-239 (December 16, 2011)
The defendant appealed from a conviction of first-degree child molestation sexual assault.  On appeal, the defendant contended that the trial justice violated his Sixth Amendment right to choose counsel by denying his motion for a sixty-day continuance to allow his counsel of choice additional time to prepare for trial.  The defendant also contended that the trial justice erred by denying his motions for judgment of acquittal and his motion for a new trial. 

The Supreme Court held that the trial justice did not abuse her discretion by denying the defendant’s motion for a continuance.  After considering, among other factors, the ages and tenderness of the principal child witnesses, the depth and breadth of involvement with the case that the defendant’s counsel of choice possessed, and indications that the continuance was a delay tactic, the Supreme Court affirmed the trial justice’s decision to deny the sixty-day continuance request. 

The Court also affirmed the trial justice’s denial of the defendant’s motion for a new trial based on the evidence in the record and the great weight accorded to a trial justice’s ruling on sufficiency-of-evidence motions.  In so holding, the Court explained that it was not clear error for the trial justice to find that the jury reasonably credited the complainant’s version of events and that the record contained other evidence, beyond the complainant’s testimony, that also substantiated the jury’s verdict.  Because the defendant did not prevail under the motion-for-a-new-trial standard, the Court also held that the trial justice did not err by denying the defendant’s motions for a judgment of acquittal, given the heavier evidentiary burden a defendant must meet upon review.

For these reasons, the defendant’s conviction was therefore affirmed.
State v. Ronald Barkmeyer, No. 09-383 (December 16, 2011)
The defendant, Ronald Barkmeyer, appealed from a Superior Court order denying his motion to reduce his sentence under Rule 35 of the Superior Court Rules of Criminal Procedure.  As grounds for his appeal, the defendant argued that the trial justice erred in (1) concluding that his rehabilitative efforts and conduct in prison were “irrelevant” and (2) “faulting” him for not “admitting guilt in order to engage in sex offender counseling.”

The Supreme Court affirmed the judgment of the Superior Court.  First, the Court held that the trial justice did not abuse his discretion when he failed to find that the defendant’s rehabilitative efforts in prison amounted to a substantial change in circumstances warranting a reduction of sentence.  The Court emphasized that a defendant’s commendable behavior in prison bears no weight for Rule 35 purposes.  Second, the Court found no evidence in the record to support the defendant’s contention that he was punished for failing to admit his guilt in order to be eligible for the Sex Offender Treatment Program.  Accordingly, the Court concluded that the trial justice was well within his discretion to give and then confirm the defendant’s sentence.
Joseph J. McGarry, Jr., et al. v. Alfred J. Coletti et al., No. 09-277 (December 15, 2011)
The defendant, Alfred J. Coletti, appealed from a Superior Court judgment entered in favor of the plaintiffs, Joseph J. and Anita L. McGarry, on their claims for trespass and to quiet title and against the defendant on his counterclaim for adverse possession.  On appeal, the defendant argued that the trial justice overlooked clear and convincing evidence of the defendant’s open, notorious, hostile, and continuous use of the disputed parcel of property.  The defendant also contended that the trial justice erred, as a matter of law, in applying an incorrect standard to the hostile element of adverse possession.

The Supreme Court affirmed the judgment of the Superior Court.  Specifically, the Court held that the trial justice did not err in finding that the defendant failed to satisfy the “open and notorious” element of adverse possession.  Consequently, the Court affirmed the trial justice’s denial of the defendant’s adverse possession claim, as well as his grant of the plaintiffs’ claims for trespass and to quiet title.
Theodore B. Chapdelaine v. State of Rhode Island, No. 09-135 (December 15, 2011)
The applicant, Theodore B. Chapdelaine, appealed from a Superior Court judgment denying his application for postconviction relief.  On appeal, the applicant contended that the conduct of his retained trial defense counsel constituted ineffective assistance and violated his Sixth Amendment right to counsel as provided in the United States Constitution.  Specifically, the applicant alleged that his trial defense counsel (1) failed to undertake an informed review with him in the plea-negotiation process; (2) was involved in a conflict of interest that hindered his ability to defend the case; (3) entered into an ill-advised and prejudicial stipulation with the prosecution; and (4) failed to explore the use of expert testimony.

The Supreme Court affirmed the judgment of the Superior Court on all grounds.  First, although not endorsing the defense counsel’s conduct in this case, the Court held that because the applicant never abandoned his claim of innocence and his insistence that he desired to go to trial, trial counsel’s performance in the plea negotiation process was not so deficient as to constitute ineffective assistance of counsel.

The Court also discussed the applicant’s allegation that his defense counsel was deficient because of a conflict of interest, holding that the potential conflict expressly was waived by the applicant before his trial and that the defense counsel’s testimony demonstrated that he made a strategic decision as to how to cross-examine the witness that presented the conflict. 

Next, the Court stated that the stipulation defense counsel entered into on the applicant’s behalf, to keep out any mention of drug or alcohol use, worked toward the benefit of the applicant and was founded on a sound strategic basis.  Therefore, the Court held that defense counsel’s decision to enter into that stipulation constituted professionally reasonable judgment.

Lastly, the Court held that the defense counsel’s decision not to investigate for the purpose of obtaining an expert witness was reasonable.  The Court agreed with the defense counsel’s testimony that, in this case, an attempt to present an expert for the purpose of offering alternative explanations for the victim’s allegations would have been nothing more than an effort to attack the victim’s credibility, which is not allowed under Rhode Island case law. 

Accordingly, the Court affirmed the judgment and remanded the case to the Superior Court.
State v. Carlos Jimenez, No. 09-336 (December 14, 2011)
The defendant, Carlos Jimenez, appealed from a judgment of conviction on two counts of first-degree sexual assault.  On appeal, the defendant argued that the trial justice erred in: (1) denying his motion to suppress the oral and written statements he made to the police; (2) denying his motion for judgment of acquittal on the count alleging vaginal/penile penetration; and (3) denying his motion for a new trial.

The Supreme Court affirmed the judgment of the Superior Court.  It first held that the trial justice did not err in denying the defendant’s motion to suppress because the defendant was not in custody until he was brought to the Cranston police station and, thereafter, the defendant waived his Miranda rights by voluntarily making a statement to police after being sufficiently apprised of such rights.  As to the motion for judgment of acquittal, the Court held that the issue was not properly preserved for appellate review.  Finally, the Court affirmed the trial justice’s denial of the defendant’s motion for a new trial after according great deference to the trial justice’s credibility assessments and finding that the trial justice did not clearly err in such determinations.
State v. Roy Diefenderfer, No. 10-30 (December 14, 2011)
The defendant, Roy Diefenderfer, appealed from a Superior Court order denying his motion to reduce his sentence based on Rule 35(a) of the Superior Court Rules of Criminal Procedure.  As grounds for his appeal, the defendant argued that the hearing justice—a different justice from the one who originally sentenced the defendant—did not apply the correct standard in denying the defendant’s sentence-reduction motion.  Specifically, the defendant asserted that the hearing justice erroneously applied the appellate standard of review.

The Supreme Court vacated the order of the Superior Court and remanded the case for a new hearing on the defendant’s motion to reduce.  In so doing, the Court stated that although the hearing justice carefully reviewed the original sentencing proceedings, he applied the appellate standard of review, thereby failing to exercise his own discretion.  The Court deemed this to be reversible error.
In re Jazlyn P. , No. 10-387 (December 9, 2011)
The respondent appealed from a Family Court decree terminating his parental rights with respect to his daughter.  On appeal, the respondent argued that the Family Court justice who presided over the termination-of-parental-rights trial (1) improperly admitted into evidence certain exhibits and (2) erred in terminating the respondent’s parental rights since, in his view, there was insufficient evidence in the record of cruel and abusive conduct.

The Supreme Court affirmed the Family Court decree terminating the respondent’s parental rights with respect to his daughter. 

The Court first held that the contested exhibits were properly admitted during the trial, since the hearsay evidence rule that the respondent relied upon on appeal was not brought to the attention of the trial justice at the proper time.  The Court reasoned that the respondent’s articulated objection to the admission of the exhibits was not sufficiently focused to inform the trial justice that the respondent was objecting on hearsay grounds.  Furthermore, the Court concluded that the objection referring to the hearsay evidence rule that was later made by the respondent was untimely, as the exhibits had already been admitted into evidence as full exhibits.

Secondly, the Court affirmed the trial justice’s termination of the respondent’s parental rights with respect to his daughter.  The Court reasoned that the uncontroverted evidence presented by DCYF, including expert testimony and a transcript of a police interview with the respondent, constituted an ample evidentiary basis upon which the trial justice could conclude that the respondent had acted in a cruel or abusive manner.  The Court concluded that sufficient evidence supported the trial justice’s conclusion that the respondent was unfit by reason of conduct or conditions seriously detrimental to the child, and that the respondent committed, or allowed to be committed conduct toward any child of a cruel and abusive nature.
State v. Raquel Figuereo, No.  09-149 (December 9, 2011)
The defendant appealed from a judgment of conviction for shoplifting after a jury trial in the Superior Court for Providence County.  On appeal, the defendant contended that the trial justice erred in declining to instruct the jury that eyewitness certainty is not a reliable indicator of eyewitness accuracy.

The instruction which the defendant contended on appeal that the trial justice should have given was not the same instruction as he actually requested at trial; therefore, in view of the Court’s “raise or waive” rule, the Supreme Court declined to pass upon the instructional language that on appeal the defendant asserted should have been used.  The Supreme Court also ruled that, even if the defendant had not waived her challenge to the instruction actually given, the trial justice did in fact include the essence of defendant’s requested instruction. 

Accordingly, the Supreme Court affirmed the judgment of the Superior Court.
Jerry F. Ims v. Town of Portsmouth et al., Nos. 09-236, 09-237, 09-238 and 09-239 (December 9, 2011)
The plaintiff, Jerry F. Ims, a former Portsmouth police officer, filed an action against the defendants for malicious prosecution, tortious interference with contractual relations, damages under the Rhode Island Whistleblowers’ Protection Act, and civil conspiracy in response to an investigation arising from an officer training exercise.  The plaintiff appealed from a Superior Court judgment in favor of the defendants on all counts.  On appeal, the plaintiff contended that the trial justice erred in granting the defendants’ motion for judgment as a matter of law on the counts of malicious prosecution and tortious interference with contractual relations.  The plaintiff also contended that the trial justice erred in precluding certain evidence at trial.  The individual defendants filed a cross-appeal asserting that the trial justice erred in dismissing their counterclaim for defamation. 

The Court held that the trial justice properly granted judgment as a matter of law in favor of the defendants for malicious prosecution because no criminal prosecution was instituted against the plaintiff, and that the hearing under the Law Enforcement Officer’s Bill of Rights was not a civil action sufficient to support a claim of malicious prosecution.  In light of that holding, the Court concluded that the exclusion of certain evidence and testimony was moot.  The Court also held that the trial justice properly granted judgment as a matter of law in favor of the defendants on the allegations of tortious interference with contractual relations because the plaintiff failed to demonstrate the existence of a contract. 

The defendants’ cross-appeal concerning the defamation claim brought an issue of first impression before the Court on whether notice of a claim under G.L. 1956 § 45-15-5 is protected by an absolute privilege.  The Court concluded that notice of a claim required under § 45-15-5 is not protected by absolute privilege; and, therefore, the Court remanded the case to the Superior Court.
Gerald M. Brown v. State of Rhode Island, No. 10-228 (December 2, 2011)
The applicant, Gerald M. Brown (Brown), appealed pro se from a judgment of the Superior Court dismissing his second application for postconviction relief.  On appeal, Brown contended that the hearing justice (1) failed to provide him an opportunity for a full and fair hearing; (2) erroneously denied his claim of newly discovered evidence; (3) improperly dismissed his claim of unlawful incarceration; and (4) wrongly rejected his assertions of ineffective assistance of counsel based on prior counsels’ failure to raise a statute-of-limitations defense. 

After reviewing the record, the Supreme Court concluded that the hearing justice indeed provided Brown with a full and fair opportunity to be heard on his pro se application in accordance with the procedures set forth in Rhode Island’s Postconviction Remedy Statute, G.L. 1956 chapter 9.1 of title 10.  In regard to Brown’s allegations of newly discovered evidence, the Court determined that Brown was required to raise such a claim in his initial application and deemed the claim as waived. Concerning Brown’s unlawful-incarceration claim, the Supreme Court held that the hearing justice did not err in rejecting Brown’s contention that he was entitled to mandatory parole.  The Supreme Court likewise found no error in the hearing justice’s determination that Brown’s statute-of-limitations argument was waived and, alternatively, was without merit.  Accordingly, the Court affirmed the judgment of the Superior Court.
Craig C. Price v. Ashbel T. Wall, No. 07-209 (December 2, 2011)
The applicant, Craig Price (Price or applicant), was convicted, after a jury trial, of one count of criminal contempt, and sentenced by the Family Court to twenty-five years in the Adult Correctional Institutions, ten years to serve and the remaining fifteen years suspended, with probation.    Price appealed the judgment to this Court, and in April 2003 this Court affirmed his conviction in State v. Price, 820 A.2d 956 (R.I. 2003).  The applicant then filed a motion with the Family Court for postconviction relief, which the Family Court justice denied in its entirety.  The applicant then appealed that judgment.  On appeal, Price asserted that: (1) his conviction was in violation of the Double Jeopardy Clause; (2) his conviction was the result of ineffective assistance of counsel; (3) the sentence imposed amounted to cruel and unusual punishment by means of an excessive sentence; and (4) he was denied due process because he was declared a violator and ordered to serve a portion of the suspended sentence.

The Supreme Court affirmed the judgment of the Family Court.  The Court concluded that Price’s double jeopardy and due process claims had been fully litigated in State v. Price, 820 A.2d 956 (R.I. 2003), and consequently res judicata barred another review.  The Court further determined that Price’s ineffective assistance of counsel argument lacked merit and that Price’s sentence for contempt was not excessive, given the horrific nature of the four homicides that Price admitted to committing and the importance of the court-ordered psychiatric treatment with which Price refused to cooperate, which formed the basis of his contempt conviction.  The appeal was denied and dismissed.
Drs. Pass and Bertherman, Inc., Providence Eye Associates, Inc., on behalf of themselves and all others similarly situated v. Neighborhood Health Plan of Rhode Island, No. 09-349(Amended) (November30, 2011)
The plaintiffs (optometrists) appeal from the Superior Court’s entry of summary judgment in favor of the defendants, Neighborhood Health Plan of Rhode Island (NHP).  The optometrists are a certified class of all optometrists and optometric practices or groups which participated in NHP and provided optometric services to its members at any time between November 1, 2002, and July 14, 2005.  They allege that NHP violated G.L. 1956 § 5-35-21.1(b) as it existed during the relevant period by reimbursing optometrists at a different, lower, rate than ophthalmologists for providing the same or similar services.
  
On appeal, the optometrists advance two arguments.  They contend that the hearing justice erred when he concluded that the money paid to the optometrists and ophthalmologists by NHP were private, not public, and therefore not subject to the antidiscrimination provisions of § 5-35-21.1(b).  In addition, they argue that regardless of whether the money was public or private, the contract between DHS and NHP “called for the expenditure of public funds,” and that any variance between the reimbursement rates for optometrists and ophthalmologists violated the provisions of § 5-35-21.1(b).

After reviewing the record and the arguments of the parties, the Supreme Court held that § 5-35-21.1(b) was unambiguous, and agreed with the hearing justice that the plain meaning of the phrase “public funds” is tied to expenditures made by the state itself or an agent of the state.  The Court held that NHP could not be considered a state actor because providing medical insurance was not “traditionally the exclusive prerogative of the state”; no “sufficiently close nexus” existed between NHP and the state; and the influence of the state in NHP’s affairs was negligible and did not rise to the level of coercion required to make the state “responsible” for NHP’s actions.  Furthermore, the Court held that this conclusion was supported by the legislative history of the statute.
  
Consequently, the Court affirmed the judgment of the Superior Court.
State v. Jaimeson Rushlow, No. 10-235 (November 28, 2011)
The defendant appealed from a conviction for first-degree sexual assault and assault with the intent to commit sexual assault. The defendant contended that the trial justice erred by denying his motions to pass the case after (1) the complainant testified that the police issued to her a no-contact order against the defendant, and (2) a police officer’s testimony bolstered the complainant’s credibility.

The Supreme Court held that the trial justice did not abuse her discretion by declining to pass the case after the complainant testified that the police, rather than a court, issued a no-contact order against the defendant. After considering all the circumstances surrounding the complainant’s errant statement, the Court concluded that the statement was not sufficiently prejudicial as to prevent the jury from calmly and dispassionately weighing the evidence.

The Supreme Court also held that the trial justice did not abuse her discretion by declining to pass the case after a police officer’s testimony bolstered the complainant’s credibility. The Court first determined that the officer’s testimony did constitute improper bolstering. Nevertheless, the Court upheld the trial justice’s ruling because, among other things, the bolstering testimony was brief and without follow-up; and the complainant’s testimony was extensive and included substantial cross-examination.

For these reasons, the defendant’s conviction was affirmed.
State v. Edward Gordon, No. 10-109 (November 9, 2011)
After a trial in the Superior Court, a jury convicted the defendant, Edward Gordon, of second-degree sexual assault. The jury acquitted the defendant on two counts of first-degree sexual assault and deadlocked on one count of kidnapping. The trial justice accepted the jury’s verdict on the sexual assault charge, and ordered a new trial on the kidnapping charge. The defendant appealed his conviction, alleging two errors: First, he argued that the Superior Court justice should have granted his motion to suppress because a magistrate of the Superior Court signed the warrant authorizing the search of his apartment. He argued that the magistrate lacked the statutory authority to issue a search warrant and that the search therefore was improper and the evidence should have been suppressed. Secondly, the defendant argued that the trial justice should have granted his motion to dismiss the kidnapping charge because retrial after juror deadlock would violate his rights under the Double Jeopardy Clause of both the United States Constitution and the Rhode Island Constitution.

The Supreme Court held that the particular magistrate who signed the search warrant was an “administrator/magistrate” assigned to serve as the “duty justice” of the Superior Court on the day when police officers applied for the warrant. Under the applicable law, the Court concluded that the plain language of the statute vested the administrator/magistrate with sufficient authority to issue a search warrant on the day in question. Additionally, the Court held that the trial justice did not abuse his discretion when he determined that the jury was “genuinely deadlocked” after he made a prudent examination of the jury’s progress, provided supplemental instructions, and requested that the jurors return to their deliberations for a reasonable period of time.

Accordingly, the Supreme Court affirmed the judgment of the Superior Court.
State v. Windell McRae, No. 10-249 (November 8, 2011)
The defendant appealed from a conviction for simple domestic assault. The defendant contended that (1) the trial justice erred by denying his motion to pass the case after the complainant testified that the defendant had been drinking on the day of the assault, and (2) the trial justice abused his discretion by allowing the prosecution to impeach the defendant with evidence of seven prior convictions.

The Supreme Court held that the trial justice did not abuse his discretion by declining to pass the case after the complainant voluntarily testified that the defendant “was drinking” on the day of the assault. The Court considered all the circumstances surrounding the statement by the complainant. This included prior testimony (not objected to) in which the complainant admitted that she and the defendant had used crack cocaine “all the time” together, as well as the existence of a cautionary instruction that was given by the trial justice immediately after the “drinking” comment was made.

The Supreme Court also held that the trial justice did not abuse his discretion by allowing the prosecution to impeach the defendant with evidence of seven of his prior convictions. After reciting Rule 609 of the Rhode Island Rules of Evidence, acknowledging the trial justice’s considerable degree of discretion, and considering various other factors the trial justice may have evaluated, the Court held that the appropriate balancing test was used in admitting the prior convictions at trial.

For these reasons, the defendant’s conviction was affirmed.
In re Frances G., No. 10-193 (November 7, 2011)
The respondent Frances G. appealed to the Supreme Court after a trial justice of the Family Court adjudicated her to be wayward based on a vandalism incident. Before the Court, the respondent raised two issues. First, the respondent contended that the trial justice improperly admitted hearsay into evidence. Second, the respondent argued that the statements she gave to an officer both before and after being advised of her Miranda rights should not have been admitted into evidence because they were obtained in violation of her Fifth Amendment rights.

The Court rejected the respondent’s first argument that the trial justice erred because the prosecutor failed to lay an adequate foundation to qualify the statement as an excited utterance under Rule 803(2) of the Rhode Island Rules of Evidence. The Court held that the trial justice did not abuse her discretion when she allowed the witness to testify about what her daughter screamed in a “loud and frantic” voice. Therefore, the Court held that the trial justice was not clearly wrong when she allowed the witness to testify about what her daughter had said, because the circumstances satisfied the requirements of Rule 803(2).

The Court also rejected the respondent’s second argument that the statements she made to an officer at the police station should have been suppressed. The respondent argued that she made admissions against her interest before she was advised of her right to remain silent. However, the Court held that because the respondent was not in custody at the time she gave the initial statement, the police were not required to have advised her of her rights at that time. The Court also held that based on the totality of the circumstances, the respondent “knowingly and voluntarily” gave up her Miranda rights before giving a subsequent verbal and written statement to the police.

Accordingly, the Supreme Court affirmed the adjudication of the Family Court.
State v. Timothy Scanlon, No. 10-399 (November 4, 2011)
The defendant appealed from an order denying his motion to reduce his sentence, which motion was filed pursuant to Rule 35(a) of the Superior Court Rules of Criminal Procedure. On appeal, the defendant argued that the trial court erred (1) in refusing to consider sentences that had been meted out to persons who the defendant contended were “similarly situated” to him and (2) by failing to afford him leniency in view of his family situation.

The Supreme Court examined the reasons given by the hearing justice for not reducing the sentence originally imposed on the defendant. The Supreme Court noted that the hearing justice had properly paid particular attention to the nature of the crimes of which the defendant was convicted. After reviewing the record, the Supreme Court held that the defendant had failed to demonstrate that the hearing justice abused his discretion in denying the defendant’s motion to reduce his sentence.

Accordingly, the Court affirmed the order of the Superior Court denying the defendant’s motion to reduce his sentence.
State v. Chhoy Hak, No. 10-126 (November 3, 2011)
The defendant, Chhoy Hak, appealed from an order denying his motion to reduce his sentence based on Rule 35(a)of the Superior Court Rules of Criminal Procedure. A jury convicted the defendant of four counts of first-degree child molestation and two counts of second-degree child molestation. The trial justice sentenced him to a total of forty years imprisonment, with twenty years to serve and twenty years suspended, with probation. This Court affirmed the defendant’s conviction on January 28, 2009. The defendant then filed a motion to reduce his sentence, which was denied by the trial justice.

Relying solely upon the length of his sentence, the defendant argues on appeal that the trial justice “could not have considered” the mitigating factors that he argued during his motion to reduce hearing. These factors included the “exceptional circumstances” surrounding the defendant’s escape from Cambodia during the reign of the Khmer Rouge, the fact that United States Immigration and Customs Enforcement has issued a detainer against him, and the defendant’s good behavior during his incarceration.

The Supreme Court held that the trial justice did not abuse his discretion in denying the defendant’s motion. The Court concluded that the record showed that the trial justice considered the defendant’s past, but that he ultimately found his argument unconvincing. The trial justice commented on the atrocities of the Khmer Rouge, but noted that the same mitigating evidence had been presented at the original sentencing hearing, and it had not persuaded him at that time. Additionally, the Court held that, under these circumstances, the trial justice correctly concluded that the existence of a federal immigration detainer for the defendant is a collateral matter for a different authority. Lastly, the Court agreed with the trial justice that the defendant’s good behavior while incarcerated was a matter to be considered by the parole board rather than the sentencing court.

Accordingly, the Court affirmed the judgment of the Superior Court.
State of Rhode Island v. William Tetreault, No. 09-274 (October 31, 2011)
The defendant appealed his judgment of conviction on five counts of a criminal indictment that included two counts of sexual assault for which he was sentenced to concurrent sentences of thirty years, twenty years to serve and ten years suspended with probation. He challenged the trial justice’s decision to exclude lay opinion testimony about the complainant’s character for untruthfulness and to admit into evidence eleven of his prior criminal convictions. The Supreme Court held that the trial justice did not abuse his discretion when he determined that the opinion testimony should be excluded because its very marginal relevance was outweighed by its prejudicial potential. The Court also concluded that the trial justice was well within his discretion to permit the state to introduce into evidence the defendant’s lengthy criminal record, which reflected his disdain for the law and lack of credibility to testify honestly under oath. The Superior Court’s judgment was affirmed.
State of Rhode Island v. Brian D. Dennis, No. 07-195 (October 24, 2011)
The defendant appeals from a Superior Court order upholding a determination by the Sex Offender Board of Review classifying him as a Level III, high risk, sexual offender under the Sexual Offender Registration and Community Notification Act (the act), G.L. 1956 chapter 37.1 of title 11. According to the defendant, objective tests indicated that he should have been classified as a moderate or moderate-low level risk offender. He asserted that the lower court erred in ruling that external factors warranted a deviation between the risk level indicated by the objective tests and the board’s ultimate findings. He also contended that the court erred in finding that the state had established a prima facie case and that his constitutional right to due process was violated.

The Supreme Court affirmed the order. The Court determined that the assessment was performed in accordance with the act and that there was no due process violation.
State v. Emmanuel T. Karngar, No. 09-276 (October 19, 2011)
The defendant appeals a denial of his motion for a new trial, subsequent to his conviction by a jury of one count of breaking and entering, for which he received a sentence of three years of unsupervised probation and fifty hours of community service. On appeal, the defendant argued that the trial justice erred in denying his new-trial motion based on the legal insufficiency of the evidence and the complaining witness’s lack of credibility. The Court held that the defendant’s legal insufficiency argument never was raised in his new-trial motion, and consequently was waived. The Court also concluded that, while reasonable minds could disagree, the jury’s verdict was not against the weight of the evidence, and the Superior Court’s judgment should be affirmed.
  
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