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Rhode Island Judiciary > Courts > Supreme Court > Opinions > Opinions (2013-2014)  

 
Supreme Court
Published Opinions 2013 - 2014 Term
David F. Miller et al. v. Metropolitan Property and Casualty Insurance Company et al., No. 13-63 (April 17, 2014)
The defendant appealed from the denial of its motion to dismiss a cross-appeal filed by the plaintiff.  The defendant argued that the plaintiff’s cross-appeal was untimely pursuant to Article I, Rule 4(a) of the Supreme Court Rules of Appellate Procedure and should, therefore, be dismissed.  The plaintiff contended that the cross-appeal was timely.
 
The Supreme Court affirmed the Superior Court’s denial of the defendant’s motion to dismiss the plaintiff’s cross-appeal.  The Supreme Court held that Rule 4(a) must be interpreted in a manner that provides a twenty-day appeal period triggered by an appeal that constitutes the first appeal adverse to a potential cross-appellant’s interests.  In the case at hand, the plaintiff’s cross-appeal was filed in response to an appeal filed by the defendant, which was the first appeal in this multi-party case that was adverse to the plaintiff’s interests.  The Supreme Court accordingly held that Rule 4(a) provided a twenty-day appeal period triggered by the defendant’s appeal, during which the plaintiff was entitled to file a notice of cross-appeal in response. 
JPL Livery Services, Inc. d/b/a Ocean State Transfer v. Rhode Island Department of Administration et al.; JPL Livery Services v. State of Rhode Island et al., Nos. 13-119, 13-120 (April 17, 2014)
The plaintiff appealed from a Superior Court judgment in favor of the defendants.  The plaintiff and the defendants were parties to a service contract, in which the plaintiff agreed to provide livery services for the transportation of human remains.  The plaintiff challenged the trial justice’s findings that the contract was not exclusive and that the defendants’ unilateral termination of the contract did not constitute a breach.  The Supreme Court affirmed the judgment of the Superior Court.

The Supreme Court held that the defendants did not breach the contract when they began using their own personnel for livery services in addition to the services provided by the plaintiff, because the contractual language did not form an exclusive agreement.  The Supreme Court further held that the contract’s termination clause allowed the defendants to terminate the agreement upon a finding of unsatisfactory performance.  The Supreme Court also held that this language did not render the agreement illusory because the defendants retained some obligation under the agreement and were statutorily required to exercise good faith in the performance of their contractual relationship with the plaintiff.  Finally, the Supreme Court held that the trial justice did not err in her factual findings and credibility determinations when finding that the defendants had acted in good faith.
State v. Jose L. Barrientos, No. 13-155 (April 17, 2014)
The defendant, Jose L. Barrientos, appealed from a Superior Court judgment of conviction declaring him to be in violation of the terms of his probation and sentencing him to five years of his previously suspended sentence.  On appeal, the defendant argued that the hearing justice erred because the evidence before him was insufficient to support his findings. In particular, the defendant argued that the state’s failure to provide testimony from a toxicologist regarding the identity of the substance seized from him—a substance that a field test revealed to be an opium derivative—was fatal to the state’s case.  In affirming the judgment of the Superior Court, the Supreme Court noted that the quantum of proof required to support a finding of probation violation is minimal.  Because a hearing justice need only be reasonably satisfied that an alleged violator has failed to keep the peace or be of good behavior, the Supreme Court held that the hearing justice was well warranted in reaching his determination that the defendant violated the terms and conditions of his probation.
Wilfredo Nunez et al. v. Merrimack Mutual Fire Insurance Co., No. 13-129 (April 17, 2014)
The plaintiffs, Wilfredo Nunez and Janette Campos, appealed the Superior Court’s grant of summary judgment in favor of the defendant, Merrimack Mutual Fire Insurance Company.  The plaintiffs filed a claim with their insurance company, Merrimack Mutual, for damage sustained when the oil line to their hot water heater corroded, leaking oil and damaging their basement.  Merrimack denied the claim and the plaintiffs filed suit in Superior Court claiming breach of contract.  The trial justice granted Merrimack Mutual’s motion for summary judgment, finding that the clear and unambiguous language of the insurance policy did not cover damage caused by corrosion.  On appeal, the plaintiffs argued that the damage was covered by a pollution exclusion clause in the policy.  The plaintiffs also argued that because the loss was unexpected from their perspective, it was covered under the policy.

The Supreme Court affirmed the judgment of the Superior Court, holding that the clear and unambiguous language of the insurance policy did not provide coverage for the type of loss incurred by the plaintiffs.
National Refrigeration, Inc. v. Capital Properties, Inc. et al. No. 11-54 (April 17, 2014)
The plaintiff, National Refrigeration, Inc., appealed from a Superior Court judgment granting the motion of defendants Capital Properties, Inc. and Capitol Cove, LLC for final judgment under Rule 54(b) of the Superior Court Rules of Civil Procedure in a mechanics’ lien action.  The plaintiff, acting as subcontractor to Providence Builders, LLC, performed work on a property that was owned by Capital Properties and leased by Capitol Cove.  When a dispute arose regarding payment, the plaintiff sought to enforce a mechanics’ lien against the owner, the lessee and the builder.  The lien was dismissed after the parties posted a $400,000 bond, pursuant to the provisions of G.L. 1956 § 34-28-17.  Capital Properties and Capital Cove then requested, and were granted, an entry of final judgment pursuant to Rule 54(b).

On appeal, the plaintiff argued that the owner, lessee, and the surety on the bond were all directly liable for the relief sought under the mechanics’ lien statute, and because the plaintiff complied with the requirements of the lien statute, judgment should be awarded in its favor.  The Supreme Court affirmed the judgment of the Superior Court, holding that a mechanics’ lien proceeding is an action in rem and that, once a bond is posted, it stands as security for the plaintiff’s claim and the property is no longer encumbered.  Therefore the claim against the owner and lessee was properly dismissed.
State v. Luis Barrios, No. 12-206 (April 17, 2014)
The defendant appealed from a judgment of conviction after a jury found him guilty of two counts of second-degree sexual assault.
  
On appeal, the defendant contended that the trial justice abused his discretion in denying the defendant’s motion for a new trial. The defendant specifically argued that reasonable minds could not differ regarding the evidence and the reasonable inferences drawn therefrom in this case and that the evidence presented at trial was insufficient to prove beyond a reasonable doubt that the defendant was the person who sexually assaulted the complainant.
 
The Supreme Court held that there was nothing in the record that would lead it to conclude that the trial justice was clearly wrong or that he overlooked or misconceived material and relevant evidence in denying the defendant’s motion for a new trial.  Accordingly, the Supreme Court affirmed the Superior Court’s judgment of conviction.
State v. Markus Matthews, No. 11-398 (April 11, 2014)
The defendant, Markus Matthews, appealed from his conviction on a single count of first-degree robbery.  On appeal, the defendant argued that his conviction should be vacated because (1) he was charged with two counts of first-degree robbery in violation of double jeopardy principles; (2) the admission of a recorded statement of a witness violated Rule 801(d)(1)(A) of the Rhode Island Rules of Evidence and the Confrontation Clause; (3) certain testimony should not have been admitted as an adoptive admission of the defendant; and (4) the trial justice erred by denying his motion for a new trial.

The Supreme Court held that the defendant waived his double jeopardy argument by failing to raise the issue by motion prior to trial as required by Rule 12(b)(2) of the Superior Court Rules of Criminal Procedure; nevertheless, even if the argument was not waived, the Court noted that the conviction of a single count of first-degree robbery does not violate double jeopardy.  Additionally, the Court held that the admission of a recorded statement of a witness did not violate Rule 801(d)(1)(A) or the Confrontation Clause, the adoptive admission testimony was properly admitted, and the trial justice did not err by denying the defendant’s motion for a new trial.  Accordingly, the Court affirmed the conviction.
State v. Kayborn Brown, No. 11-257 (April 11, 2014)
The defendant, Kayborn Brown, appealed from a judgment of conviction stemming from two incidents on August 4, 2008, in Central Falls and on August 6, 2008, in Providence.  Following these incidents, the defendant was charged with ten offenses.  After a jury trial, the defendant was found guilty for the murder of Jorge Restrepo in violation of G.L. 1956 § 11-23-1, first-degree robbery in violation of G.L. 1956 § 11-39-1, conspiracy to commit robbery in violation of G.L. 1956 § 11-1-6, carrying a pistol without a license in violation of G.L. 1956 § 11-47-8(a), and reckless driving in violation of G.L. 1956 § 31-27-4.  The defendant had been charged with five other counts; three of which were dismissed through Rule 48(a) of the Superior Court Rules of Criminal Procedure, and two were disposed of after the trial justice granted the defendant’s motion to acquit pursuant to Rule 29 of the Superior Court Rules of Criminal Procedure.

On appeal, the defendant pressed five arguments.  First, he contended that the trial justice erred when he refused to sever the counts related to the August 4 incident from the August 6 offenses  because, the defendant alleged, those counts had been misjoined and should have been severed as a matter of law under Rule 8(a) of the Superior Court Rules of Criminal Procedure.  Next, the defendant maintained that, assuming the counts were properly joined under Rule 8(a), the trial justice nevertheless abused his discretion in refusing to sever pursuant to Rule 14 of the Superior Court Rules of Criminal Procedure.  Third, Brown argued that the trial justice impaired the defendant’s right to a fair trial when he excluded a police sketch of the alleged murderer.  Fourth, the defendant claimed that the trial justice erred when he allowed the state to introduce three photographs taken during an autopsy performed on the victim.  Finally, the defendant asserted that the trial justice abused his discretion when he denied the defendant’s motion for a new trial.

The Supreme Court held that the trial justice had not abused his discretion when he found the counts had not been misjoined because Rule 8(a) favors joinder and because the offenses charged in the indictment were of a sufficiently similar character and were connected together to justify joinder.  Secondly, the Court held that the trial justice did not err when he denied the defendant’s motion to sever under Rule 14 because the defendant had not suffered additional prejudice by the admission into evidence of an unusual red firearm recovered after the August 6 incident that would have likely been mutually admissible at separate trials.

Next, the Supreme Court held that the defendant’s right to a fair trial had not been impaired when the trial justice refused to enter into evidence a police sketch and did not allow a police sketch artist to testify.  The Court held that the sketch artist would not have been able to authenticate the sketch because the declarant was not available at the trial.  Fourth, the Court held that the trial justice did not impede the defendant’s right to a fair trial when he allowed into evidence three autopsy photographs, to which the defendant had objected, because the photographs were at least marginally relevant and not enormously prejudicial to the defendant.  Finally, the Court held that the trial justice had not erred when he refused the defendant’s motion for a new trial because the trial justice reviewed the evidence, weighed the credibility of the witnesses, and made plain that he did not disagree with the jury’s verdict.

Accordingly, the Court affirmed the judgment of conviction.
Donald Panarello v. State of Rhode Island, Department of Corrections et al., No. 11-105 (April 7, 2014)
The plaintiff, Donald Panarello, appealed from a judgment of the Superior Court following a bench trial.  In her lengthy decision, the trial justice held that the defendant, the State of Rhode Island Department of Corrections (DOC), had not discriminated against the plaintiff due to his military status in violation of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. §§ 4301 through 4335, or the parallel state statute entitled “Employment Rights of Members of Armed Forces,” G.L. 1956 chapter 11 of title 30, when it decided not to promote him on three occasions.  The plaintiff contended: (1) that, while the trial justice had correctly articulated the burden-shifting method of proof applicable in employment discrimination cases under the USERRA, she incorrectly applied it; and (2) that the trial justice overlooked or misconceived evidence that the plaintiff considered to be relevant, material, and supportive of his “prima facie” case of employment discrimination.
For actions under the USERRA and the parallel state statute, the Supreme Court adopted a two-part burden-shifting paradigm, articulated in the 2007 decision of the United States Court of Appeals for the First Circuit in the case of Velázquez-García v. Horizon Lines of Puerto Rico, 473 F.3d 11 (1st Cir. 2007).  The Court further held that the trial justice properly applied that two-part burden-shifting paradigm and did not overlook or misconceive material evidence. 
Accordingly, the Court affirmed the trial justice’s judgment in favor of the DOC.

Commerce Park Associates 1, LLC, et al. v. Monique Houle, in her capacity as Tax Collector of the Town of Coventry et al., Nos. 12-207, 12-210 (March 31, 2014)
These consolidated cases came before the Supreme Court on cross-appeals from a judgment of the Superior Court granting the defendants’ motion to dismiss the plaintiffs’ complaint for failure to exhaust their administrative remedies under G.L. 1956 § 44-5-26 and denying the defendants’ request for sanctions against the plaintiffs.  This is one of several cases in which the plaintiffs were challenging sewer assessments levied by the Town of Coventry.  The plaintiffs were also requesting injunctive relief to prevent a tax sale on their properties from proceeding.
  
In the first of these cases, the plaintiffs claimed that the hearing justice erred in granting the defendants’ motion to dismiss because the appeal process in § 44-5-26 was not applicable to sewer assessments.  In their cross-appeal, the defendants contended that their request for sanctions against the plaintiffs should have been granted by the hearing justice because of the plaintiffs’ various duplicative filings.
 
The Supreme Court concluded that the sewer assessments at issue were not taxes and, therefore, were not governed by the appellate procedures of chapter 5 of title 44.  The Supreme Court held that the plaintiffs were required to follow the procedure set forth in § 19 of the Coventry sewer enabling act, P.L. 1997, ch. 330, in order to challenge their sewer assessments.  The Supreme Court further held that the hearing justice had not abused his discretion in denying the defendants’ request for sanctions.  Accordingly, the Supreme Court vacated the judgment of the Superior Court as to the defendants’ motion to dismiss and affirmed the judgment as to sanctions.
Kris Ellinwood et al. v. Scott B. Cohen et al., 13-125 (March 28, 2014)
In this automobile negligence action, the plaintiff Kris Ellinwood, his wife, and three children appealed from the Superior Court’s grants of summary judgment in favor of the defendant Scott B. Cohen.  The plaintiff, a patrolman with the East Providence Police Department, was struck by a vehicle driven by a third party while responding to an automobile accident involving the defendant.  The Superior Court concluded that the “public-safety officer’s rule” barred the plaintiff’s negligence claim.  On appeal, the plaintiff argued that the public-safety officer’s rule was inapplicable because the defendant failed to warn him that glare from the morning sun was impairing the vision of approaching motorists.
   
The Supreme Court held that the Superior Court properly applied the public-safety officer’s rule.  The Court reasoned that a police officer responding to a roadside emergency could reasonably anticipate the risk of being struck by another vehicle.  The Court rejected the plaintiff’s assertion that a motorist who has just been in an accident on a public roadway has a legal duty to warn a responding police officer of the possible dangers of sun glare.
   
Accordingly, the Court affirmed the judgment.
State of Rhode Island ex rel. Town of Little Compton v. David Simmons, No. 12-251 (March 25, 2014)
The state, through the Town of Little Compton, petitioned the Supreme Court for a writ of certiorari seeking review of a District Court decision that dismissed a charge of driving under the influence against the defendant, David Simmons.  Police officers from Little Compton located Simmons in Tiverton and transported him back to the scene of an automobile accident in which the defendant had been involved in Little Compton.  The defendant subsequently failed field-sobriety tests and was arrested.  The hearing judge dismissed the charges after she found that the police had effectively placed the defendant under arrest in Tiverton, which exceeded their authority because the arrest was outside their jurisdiction.  The Supreme Court granted the petition to consider whether the interaction in Tiverton between the defendant and the Little Compton police officers amounted to an arrest.

After a review of the record, the Supreme Court held that the defendant had not been arrested in Tiverton, after weighing the factors outlined in State v. Bailey, 417 A.2d 915, 917 (R.I. 1980).  Specifically, the Court held that even though the defendant’s freedom of movement had been curtailed, Simmons had not been subjected to any degree of force by law enforcement and had voluntarily accompanied the police back to Little Compton.  The Court concluded that a reasonable person in like circumstances would have felt free to leave.

Accordingly, the Supreme Court quashed the judgment of the District Court and remanded the case with its decision endorsed thereon.
Peter W. Russo v. State of Rhode Island, Department of Mental Health, Retardation and Hospitals et al., No. 11-360 (March 24, 2014)
The defendant, the Rhode Island Department of Mental Health, Retardation and Hospitals, appealed from a judgment of the Superior Court that was entered on November 8, 2010, following a bench trial.  The trial justice found in favor of the plaintiff Peter W. Russo holding that the defendant had violated the Rhode Island Whistleblowers’ Protection Act (WPA), G.L. 1956 chapter 50 of title 28, when it placed the plaintiff on administrative leave with pay and required that he undergo an independent medical examination (IME).  The defendant contended on appeal that the trial justice erred in finding: (1) that paid administrative leave and the requirement to undergo an IME constituted a “discharge, threat[], or * * * discriminat[ion]” under the WPA; (2) that the plaintiff had reported violations of a “law or regulation or rule promulgated under the law of [Rhode Island]” (which is one of the preconditions for obtaining relief under the WPA); (3) that there was a causal connection between the plaintiff’s reports at issue in the case and his placement on paid administrative leave; and (4) that the defendant did not have “legitimate nonretaliatory” grounds to place the plaintiff on paid administrative leave and require that he undergo an IME.

The Supreme Court held that placing an employee on paid administrative leave with the requirement that he or she undergo an IME, as happened in this case, did not constitute an action which “discharge[d], threaten[ed], or otherwise discriminate[d]” against the employee in violation of the WPA.  Accordingly, the Court vacated the decision of the Superior Court and held that the defendant did not violate the WPA.
State v. Nayquan Gadson, No. 11-97 (March 13, 2014)
The defendant, Nayquan Gadson, appealed the Superior Court’s judgment of conviction for second-degree robbery.  On appeal, the defendant contended that the trial justice erred: (1) in failing to dismiss the second-degree robbery charge in view of what the defendant contends was a “not guilty” finding by the jury on the lesser included offense of larceny from the person; (2) in denying the defendant’s motion to sever Count Six, which charged a codefendant (and him alone) with carrying a handgun without a license; and (3) in denying the defendant’s motion in limine seeking to “preclude the State from submitting or referring to: * * * any alleged connection between Gadson and the firearm used by [another person] to commit the robbery.”

The Supreme Court held that the defendant waived his right to have the Court consider his argument that the trial justice erred in failing to dismiss the second-degree robbery charge against him and his argument that the trial justice erred in denying his motion in limine.  The Supreme Court further held that the codefendant was properly joined in the indictment with the defendant under Rule 8 of the Superior Court Rules of Criminal Procedure and that the trial justice did not abuse his discretion in denying the defendant’s motion pursuant to Rule 14 of the Superior Court Rules of Criminal Procedure to sever Count Six against the codefendant from the trial of both of the defendants on Counts One through Five.

Accordingly, the Supreme Court affirmed the Superior Court’s judgment of conviction.
Langdon Wilby et al. v. Paul Savoie, Alias, No. 2012-141 (March 12, 2014)
The plaintiff, Paul Savoie, appealed from a judgment in favor of the defendants, Langdon Wilby and Tammy Emmett.  The plaintiff and the defendants were members of the board of directors of a Vermont corporation formed for the purpose of reconstructing and operating a defunct racetrack in the Town of Pownal, Vermont.  The plaintiff invested $350,000 in the venture before the project was ultimately abandoned due to issues surrounding the corporation’s ability to obtain a racetrack license.  The plaintiff brought claims against the defendants for breach of fiduciary duty, breach of contract, and fraud.  After a bench trial in Superior Court, the trial justice entered judgment for the defendants on all counts.

On appeal, the plaintiff presented three arguments.  First, the plaintiff argued that the trial justice erred by failing to address the plaintiff’s claim that the defendants fraudulently induced him to invest in the corporation.  Second, the plaintiff argued that the trial justice erred by failing to hold the defendants accountable for their breach of fiduciary duties.  Third, the plaintiff argued that the trial justice made clear errors of fact, drew unreasonable inferences from the evidence, and overlooked and misconceived material evidence when he concluded that the plaintiff knew of, and was partially responsible for, the defendants’ mismanagement of the corporation.
 
The Supreme Court affirmed the judgment of the Superior Court.  The Supreme Court held that the trial justice did address the plaintiff’s fraud claim, and that the trial justice appropriately found no evidence of an intention to misrepresent or defraud.  The Supreme Court further held that the trial justice did not find that the defendants breached any fiduciary duties owed to the plaintiff, and that the trial justice’s findings on this issue were not clearly erroneous.  Finally, the Supreme Court held that the trial justice did not overlook or misconceive material evidence, nor were his factual findings clearly erroneous, with regard to the plaintiff’s knowledge of and participation in the mismanagement of the corporation.
Charles Burns et al. v. Moorland Farm Condominium Association, et al., No. 11-107 (March 10, 2014)
The defendant Moorland Farm Condominium Association (the association) appealed a judgment of the Superior Court that concluded that assessments to pay for repairs to decks attached to certain condominium units were illegal.  Condominium owners sued to avoid paying special assessments allocated to the repairs of decks in the condominium development.  The trial justice concluded that the decks were parts of the individual units rather than common areas and that therefore the repairs must be paid by the individual unit owners.

On appeal, the association first argued that the trial justice erred by allowing the case to proceed despite the absence of the unit owners who would bear the responsibility of paying for the repairs if the decks were not considered common areas.  The association additionally assailed the trial justice’s determination that the decks were not common areas and his decision to exclude an affidavit from an expert witness.  Finally, the defendant contended that the trial justice should have granted its motion for relief from judgment, filed according to Rule 60(b) of the Superior Court Rules of Civil Procedure, and that the motion did not warrant sanctions pursuant to Rule 11 of the Superior Court Rules of Civil Procedure.

The Supreme Court vacated the judgment of the Superior Court.  The declaratory-judgment act requires joinder of all parties who have an interest that may be affected by the declaration.  The plaintiffs did not join as parties to the lawsuit the owners of condominium units who would need to pay the reallocated assessments should the original assessments be declared illegal.  This was fatal to the action.

Accordingly, the Court declined to review the trial justice’s decision regarding whether the decks were common areas, whether to exclude the expert affidavit, or whether to grant the defendant relief from the judgment.  The Supreme Court determined, however, that the issue of the Rule 11 sanctions was reviewable and held that those sanctions were improper.
Donna Rose v. Christopher Cariello et al., No. 12-59 (March 4, 2014)
The defendants, Christopher Cariello and James Cariello, appealed from a judgment of the Superior Court granting the plaintiff’s motion for a new trial and/or additur, after a jury trial in this negligence action.  On appeal, the defendants argued that the trial justice erroneously substituted his own judgment for that of the jury in considering the facts of the case and that he erred in granting the motion for a new trial on the basis of the inadequacy of damages.
  
The Supreme Court concluded that the trial justice engaged in the proper analysis in considering the motion for a new trial and that his findings were supported by sufficient evidence in the record.  The Supreme Court also held that the trial justice was not clearly wrong in his determination that the jury’s award of damages was inadequate.  Accordingly, the Supreme Court affirmed the judgment of the Superior Court.
Carmella Bucci v. Hurd Buick Pontiac GMC Truck, LLC et al., No. 11-163 (March 4, 2014)
The plaintiff, Carmella Bucci, appealed entry of summary judgment in favor of the defendant, Hurd Buick Pontiac GMC Truck, LLC, Hurd Buick Pontiac GMC Truck, LLC d/b/a Regine Pontiac GMC, and Hurd Chevrolet, Inc.  The defendant fired the plaintiff at the age of seventy-two after the defendant had employed her three times over a period of five years.  The plaintiff filed claims of age and disability discrimination claiming that the defendant had unlawfully fired her.  In granting the defendant’s motions for summary judgment, the Superior Court declared that there were no genuine issues of material fact and that the defendants had not engaged in unlawful age or disability discrimination.  On appeal, the plaintiff argued that the trial justice erred in applying the three-step framework as outlined in McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973), which this Court adopted in Newport Shipyard, Inc. v. Rhode Island Commission for Human Rights, 484 A.2d 893, 898 (R.I. 1984).  Specifically, the plaintiff argued that the trial justice erred in finding that the defendant had met its burden of production in providing legitimate nondiscriminatory reasons for discharging her and that the plaintiff had not demonstrated that the reasons given for her termination were pretextual.

The Supreme Court held that the plaintiff’s claim of disability discrimination was not properly before the Court because the plaintiff did not develop this aspect of her appeal in the submitted brief.

The Supreme Court also held that because the defendant’s burden was limited to one of production and not persuasion under the second step of McDonnell-Douglas, the defendant had met this burden by proffering several legitimate reasons for the plaintiff’s discharge that were not discriminatory.  Finally, the Supreme Court held that the plaintiff had not shown that the defendant’s reasons for the plaintiff’s termination were pretextual.

Accordingly, the Supreme Court affirmed the judgment of the Superior Court.
Reynalda Weeks v. 735 Putnam Pike Operations, LLC d/b/a Greenville Skilled Nursing and Rehabilitation, No. 12-356 (February 28, 2014)
The plaintiff, Reynalda Weeks, appealed from an order of the Providence County Superior Court entered on January 30, 2012, staying her employment discrimination case (brought pursuant to the Rhode Island Civil Rights Act (RICRA), G.L. 1956 chapter 112 of title 42, and the Rhode Island Fair Employment Practices Act (FEPA), G.L. 1956 chapter 5 of title 28) in that court and ordering that the “matter * * * be resolved through binding arbitration as required by the governing Collective Bargaining Agreement between the parties.” On appeal, plaintiff contended that the hearing justice erred when she granted defendant’s motion to stay because the collective bargaining agreement’s arbitration provision did not preclude the plaintiff from asserting her statutorily created rights (under the RICRA and the FEPA) in a judicial forum.

The Supreme Court held that the right to a judicial forum for claims brought specifically under the RICRA or the FEPA may be waived in a collective bargaining agreement only if that waiver is clear and unmistakable; the Court further held that the collective bargaining agreement in the instant case did not contain such a clear and unmistakable waiver. Consequently, the Court vacated the order of the Superior Court and held that the collective bargaining agreement did not require the plaintiff’s RICRA and FEPA claims to be arbitrated.
Alexander Rose v. State of Rhode Island, No. 12-129 (February 24, 2014)
The applicant, Alexander Rose, appealed from a Superior Court judgment denying his application for postconviction relief.  Rose previously pled nolo contendere to one count of first-degree child molestation and received a twenty-year sentence, with eight years to serve and twelve years suspended with probation.  In a post-conviction relief application filed in October 2010, Rose argued that he was no longer subject to the custody of his probation officer because he had successfully completed his period of probation.  The hearing justice denied Rose’s application, reasoning that Rose’s probationary period did not end until March 2014.
 
On appeal, Rose argued that his “good-time” credits and credit for pre-trial confinement should have accelerated the end date of his probationary period.  After careful consideration, the Supreme Court rejected Rose’s arguments.  The Court held that Rose’s credits for good time were properly applied to reduce his term of incarceration but could not be used to reduce the overall length of his sentence below the mandatory minimum sentence of twenty years.  The Court likewise held that the amount of time that Rose spent confined while awaiting trial was correctly credited towards his eight-year term of incarceration but did not make his twenty-year sentence retroactive.  Accordingly, the Court affirmed the Superior Court’s judgment.   
Barbara C. Cayer v. Cox Rhode Island Telecom, LLC d/b/a Cox Communications et al., Nos. 12-23, 12-24 (February 21, 2014)
The plaintiff, Barbara C. Cayer, was injured after the car she was driving was rear-ended by a van driven by the defendant Nelson Ovalles.  Cayer filed suit against Ovalles, his wife, and the defendant Cox Rhode Island Telecom, LLC d/b/a Cox Communications (Cox).  At the time of the accident, Ovalles was acting as a cable technician on behalf of Cox and M&M Communications, Inc. (M&M), a contractor for Cox.  Cox obtained summary judgment after a Superior Court justice determined that Ovalles was not an employee of Cox.  The plaintiff then attempted to amend her complaint to add claims against M&M.  A different justice of the Superior Court denied that motion on the basis that the claims against M&M were untimely and did not relate back under Rule 15 of the Superior Court Rules of Civil Procedure.  Cayer appealed both decisions.

The Supreme Court held that summary judgment was proper because it was clear that Ovalles was not an employee of Cox.  The installation agreement between Cox and M&M specifically renounced any employer-employee relationship with M&M’s technicians.  Additionally, the facts indicated that Cox had no control over Ovalles’s method of performance.

The Supreme Court denied and dismissed the appeal of the denial of the plaintiff’s motion to amend.  The order was interlocutory, and none of the statutory or decisional exceptions applied to make review proper at this time.
NV One, LLC, et al. v. Potomac Realty Capital, LLC, et al., No. 12-262 (February 18, 2014)
The defendant, Potomac Realty Capital, LLC, appealed from the Superior Court’s grant of partial summary judgment in favor of the plaintiffs, NV One, LLC, Nicholas E. Cambio, and Vincent A. Cambio.  The defendant asserted that the trial justice erred when he granted the plaintiffs’ motion for partial summary judgment on liability for violation of the usury statute, G.L. 1956 § 6-26-2, by declaring the usury savings clause of the parties’ loan agreement unenforceable.  Neither party disputed that the interest rate was usurious; thus, the case turned on the enforceability of the usury savings clause.  The defendant argued that the Supreme Court should give effect to the clause and enforce the contract.

The enforceability of usury savings clauses was an issue of first impression in Rhode Island.  The Supreme Court affirmed the judgment of the Superior Court, holding that such clauses are against the state’s well-established policy of preventing usurious transactions.
James W. Brown et al. v. Elmer Stanley et al., No. 12-169 (February 18, 2014)
One of the plaintiffs, Bluelinx Corporation, appealed from a Superior Court order granting the renewed motion for judgment as a matter of law and conditionally granting the motion for a new trial brought by the remaining defendants, Project Hope/Projecto Esperanza, Inc. and the Diocesan Bureau of Social Service.  The plaintiff brought this action seeking contribution for payments made to an individual who was struck by a vehicle owned by the plaintiff and operated by its employee, James W. Brown, while participating in a fundraising walk sponsored by the defendants.  On appeal, the plaintiff argued that although the defendants initially did not have a duty to provide for the safety of the participants, the defendants assumed a duty of care after taking steps to control traffic on the street where the participant was struck.  The plaintiff also argued that whether this duty was extinguished or breached was a question for the jury.

The Supreme Court affirmed the judgment of the Superior Court granting the defendants’ motion for judgment as a matter of law.  Because the Court concluded that, as a matter of law, there was no cognizable duty of care owed by the defendants in this case, the Court declined to address the trial justice’s decision conditionally granting a new trial.
State v. Jethro Rolle, No. 12-12 (February 18, 2014)
The defendant, Jethro Rolle, appealed from the Superior Court’s denial of his motion to dismiss a charge of second-degree sexual assault on double jeopardy grounds following the granting of a mistrial at the defendant’s behest.  On appeal, the defendant argued that the trial justice erred when he concluded that the prosecutor’s conduct at trial, which amounted to a violation of the rules of discovery, was not done with the intent to provoke a mistrial.
 
The Supreme Court held that the trial justice did not err in concluding that the prosecutor lacked the specific intent to goad the defendant into moving to pass the case.  After thoroughly examining the record, the Court concluded that there was ample support for the trial justice’s finding that the prosecutor was not seeking to abort a rapidly derailing trial.  The Court therefore affirmed the trial justice’s decision.
Donna Banville v. Peter Brennan et al., No. 11-384 (February 7, 2014)
The defendants, Peter and Joyce Brennan, appealed from a judgment entered by the Superior Court in favor of the plaintiff, Donna Banville, in this boundary dispute between neighbors. On appeal, the Brennans argued that the trial justice erred in finding that the doctrine of acquiescence applied to establish the dividing line between the two lots.  The Brennans also argued that the trial justice erred in awarding damages to Banville based on the diminution in the fair market value of her real property as a result of the alleged encroachment by the Brennans.
 
The Supreme Court held that the trial justice had not overlooked or misconceived material evidence in determining the location of the boundary line between the parties’ respective lots.  The Supreme Court concluded that the evidence in the record supported the trial justice’s finding as to the establishment of the boundary line and his award of damages to the plaintiff.  Accordingly, the Supreme Court affirmed the Superior Court’s judgment in favor of the plaintiff.
William Chhun et al. v. Mortgage Electronic Registration Systems, Inc., et al., No. 12-298 (February 3, 2014)
The plaintiffs, William Chhun and Joli Chhim, appealed from a Superior Court judgment granting the motion to dismiss of the defendants, Mortgage Electronic Registration Systems, Inc., Domestic Bank, Aurora Loan Services, LLC, and Deutsche Bank National Trust Company.  On appeal, the plaintiffs argued that the Superior Court justice erroneously held that they did not have standing to challenge the assignment of their mortgage and that he improperly granted the defendants’ motion to dismiss.

Based on its recent holding in Mruk v. Mortgage Electronic Registration Systems, Inc., No. 2012-282-A., slip op. at 13 (R.I., filed Dec. 19, 2013), the Supreme Court held that the plaintiffs have standing to challenge the assignment of their mortgage.  Additionally, the Court held that the plaintiffs alleged sufficient facts in the complaint to survive a motion to dismiss.  Accordingly, the Court vacated the judgment of the Superior Court and remanded the case for further proceedings.
State v. Raymond Clements, No. 11-203 (February 3, 2014)
The defendant, Raymond Clements, appealed from a judgment of conviction for two counts of murder, one count of arson, and one count of conspiracy.  Clements contended that the trial justice erred when he allowed evidence of a robbery committed during the day before the overnight murders, gave the jury a faulty instruction as to the proper use of that evidence, and denied a motion to pass the case.  The Supreme Court held that the evidence’s admission under Rule 404(b) of the Rhode Island Rules of Evidence, if error, was harmless.  The Court additionally held that the admission of the evidence did not violate Rule 403 of the Rhode Island Rules of Evidence.

The Court further held that the defendant’s objections to the jury instructions were not preserved, as he did not object to any of the three instructions that the trial justice gave the jury regarding the use of the robbery evidence.  Finally, the Court held that the denial of the motion to pass the case was not an abuse of discretion.

The Supreme Court affirmed the judgment of conviction.
State v. John H. Silva, No. 11-378 (February 3, 2014)
The defendant appealed from a judgment of conviction of the following offenses stemming from a shooting: two counts of assault with a dangerous weapon; two counts of discharging a firearm during a crime of violence; one count of carrying a handgun on his person without a license; and one count of discharging a firearm within a compact area.
 
On appeal, the defendant contended that the trial justice abused his discretion in denying his motion for a new trial. The defendant specifically argued that the trial justice overlooked and misconceived material evidence and failed to draw the appropriate inferences from the evidence presented because the testimony of two of the key witnesses at trial—Ramon Jimenez and John Nazario—was not credible.  The defendant further asserted that the verdict was against the fair preponderance of the evidence and failed to do substantial justice between the parties.

The Supreme Court held that there was nothing in the record that would lead it to conclude that the trial justice was clearly wrong or that he overlooked or misconceived material and relevant evidence in denying the defendant’s motion for a new trial.  Accordingly, the Supreme Court affirmed the Superior Court’s judgment of conviction. 
State v. Linda A. Diamante, No. 10-50 (January 30, 2014)
The defendant, Linda A. Diamante, appealed from the Superior Court’s denial of a motion to seal her judicial records.  In Superior Court, the defendant moved to seal the record of a charge of felony assault with a dangerous weapon that was dismissed.  The trial justice denied the motion because the defendant opted to plead nolo contendere to a second charge in the same criminal case, and G.L. 1956 § 12-1-12.1(a) requires an individual to be “exonerated of all counts in a criminal case” as a precondition to having his or her record sealed.  The defendant contended that the trial justice’s denial of her motion was in error because, in her view, § 12-1-12(a) and § 12-1-12.1(a) are in conflict and, according to the defendant, § 12-1-12(a) mandates the sealing of her record.

The Supreme Court affirmed the trial justice’s denial, holding that the defendant’s record could not be sealed because the plain language of § 12-1-12.1(a) conditioned the sealing of a court record on a defendant being exonerated on “all counts” in a criminal case.  (Emphasis added.)  The Court further held that no conflict existed between § 12-1-12(a) and § 12-1-12.1(a) because § 12-1-12(a), when addressing the sealing of court records, provided that a court record shall be sealed if doing so is “consistent with § 12-1-12.1.”
State v. Mustapha Bojang, No. 10-361 (January 30, 2014)
The defendant, Mustapha Bojang, appealed from two convictions of first-degree child molestation sexual assault.  The defendant argued that the trial justice committed three errors that require this Court to vacate those convictions: (1) the denial of the defendant’s motion to suppress statements made to police during a post-arrest interrogation; (2) the refusal to allow cross-examination of the complainant about a false accusation of physical abuse by the complainant against her mother; and (3) the denial of the defendant’s motion for a new trial.

The Court affirmed the trial justice’s denial of the motion for a new trial and held that the limitation on cross-examination was not error.  However, the Court remanded the case to the Superior Court in order for the trial justice to make additional findings of fact and credibility determinations concerning the voluntariness of the defendant’s confessions.
State v. Gabriel Santiago, No. 12-173 (January 15, 2014)
The defendant, Gabriel Santiago, appealed from a conviction for second-degree child molestation sexual assault.  On appeal, the defendant argued that the trial justice erred when she allowed the complaining witness to testify that the defendant’s body part was hard when she touched it.  The witness was able to recall this fact after having her recollection refreshed.  The defendant’s contention was that the state’s supplemental discovery responses indicated that the complaining witness did not remember whether the body part was hard and that her recollection could not be refreshed.

The Supreme Court held that the trial justice did not abuse her discretion in finding that no discovery violation had occurred.  When a witness’s recollection is refreshed, the witness’s in-court testimony, and not the memorandum used to refresh that recollection, is evidence.  Thus, the fact that the witness’s recollection was not refreshed before trial did not mean that the witness’s recollection could not be refreshed at trial.  The Supreme Court, therefore, affirmed the conviction.
State v. Paul Fleck, No. 11-305 (January 15, 2014)
The defendant, Paul Fleck, appealed from a judgment of conviction for one count of simple domestic assault in violation of G.L. 1956 § 11-5-3 and G.L. 1956 § 12-29-5.  On appeal, the defendant argued that the trial justice erred when she denied both his motion for judgment of acquittal under Rule 29 of the Superior Court Rules of Criminal Procedure and his motion for new trial under Rule 33 of the Superior Court Rules of Criminal Procedure because the weight of the evidence that Fleck and the complaining witness were in a substantive dating relationship as defined under § 12-29-2 was insufficient to support a conviction.

The Supreme Court held that the trial justice was not clearly wrong when she denied the motion for new trial. The trial justice reviewed all of the evidence presented, weighed the credibility of the witnesses, and said that she agreed with the verdict.  The Court further held that the Rule 29 motion was not preserved for appellate review but that, even if it had been, the Court would not have reached the issue because the Court affirmed the denial of the Rule 33 motion.

Accordingly, the Court affirmed the judgment of conviction.
State v. Christian Buchanan, No. 2012-230 (January 14, 2014)
The defendant, Christian Buchanan, appealed from a judgment of conviction of three counts of second-degree and one count of first-degree child molestation sexual assault.  On appeal, the defendant claimed that the trial justice abused her discretion in refusing to exclude all evidence of uncharged acts of molestation in violation of Rule 404(b) of the Rhode Island Rules of Evidence.  The defendant also argued that the trial justice erred in denying the defendant’s motion for judgment of acquittal and motion for a new trial, claiming that the evidence failed to prove that the crimes occurred at the location or within the time frame listed in the bill of particulars.  Finally, the defendant claimed that the trial justice erred in denying his motion for a new trial based on comments made by the prosecutor, which he contended were unduly prejudicial.
      
After careful review, the Supreme Court concluded that the defendant failed to properly preserve the evidentiary issue on appeal by failing to object to the proffered testimony.  The Court also held that the trial justice did not err in denying the defendant’s motion for a new trial or motion for judgment of acquittal.  Lastly, the Supreme Court concluded that because the defendant did not object to the trial justice’s limiting instructions after the inappropriate comments, the defendant failed to properly preserve the issue on appeal.  Accordingly, the Supreme Court affirmed the judgment of conviction.
Christopher Reynolds v. First NLC Financial Services, LLC, et al., No. 12-113 (January 10, 2014)
The plaintiff, Christopher Reynolds, appealed the granting of a motion for summary judgment by the Superior Court.  Reynolds defaulted on a mortgage loan.  He twice filed bankruptcy petitions, and each time Deutsche Bank National Trust Company (Deutsche Bank) obtained relief from the automatic stay to pursue foreclosure.  Deutsche Bank filed its second motion for relief from the stay after a foreclosure sale had taken place.  The plaintiff later filed a Superior Court action seeking a declaration that the foreclosure sale was void.  Summary judgment was granted based on res judicata, and the plaintiff appealed.

On appeal, the Supreme Court held that the elements of res judicata were satisfied.  The same parties litigated the issue of the propriety of the assignment of the mortgage when Deutsche Bank filed motions for relief from the stay, the second of which came after the foreclosure sale occurred.  In granting that second motion, the bankruptcy judge said that the completed sale was “valid.”  The bankruptcy concluded without appeal, so the order was final.

The judgment was affirmed.
Narragansett Indian Tribe v. State of Rhode Island and UTGR, Inc. d/b/a Twin River and Newport Grand, LLC,Intervenor Defendant, No. 12-323 (January 10, 2014)
The defendant, the State of Rhode Island, appealed from the entry of partial summary judgment in the Superior Court, holding that the plaintiff, the Narragansett Indian Tribe (Tribe), had standing to pursue its constitutional challenge to the 2011 Casino Act, G.L. 1956 § 42-61.2-1, as enacted by P.L. 2011, ch. 151, art. 25, § 2, which proposed the establishment of casino table games at the Twin River gambling facility.  On appeal, the state argued that the Tribe had not suffered an injury in fact from the Casino Act so as to give it standing and, further, that the hearing justice erred in finding that the public interest exception to standing applied.
  
The Supreme Court held that the Tribe had suffered an injury in fact because of the removal of some 200 video lottery terminal (VLT) machines from the Twin River establishment in order to accommodate the new table games as the Tribe is entitled to receive a percentage of the revenue from the VLT machines.  Accordingly, the Supreme Court affirmed the Superior Court’s judgment that the Tribe had standing to pursue its cross-appeal of the judgment of the Superior Court on the merits of its claims challenging the constitutionality of the Casino Act.
Steven Iadevaia v. Town of Scituate Zoning Board of Review, No. 11-338 (December 23, 2013)
The petitioner, Steven Iadevaia, appealed from a Superior Court judgment affirming a decision by the respondent, the Town of Scituate Zoning Board of Review, which denied the petitioner’s application for a building permit and dimensional variance.  On appeal, the petitioner argued that the trial justice erred when she affirmed the zoning board’s decision interpreting a frontage requirement in the Scituate Zoning Ordinance.  Further, the petitioner argued that, assuming the Scituate Zoning Ordinance did require frontage, his property had always consisted of two separate lots that had never merged and that, therefore, he was entitled to a dimensional variance for the nonconforming lot.  Finally, the petitioner argued that the trial justice erred when she invoked the doctrine of judicial estoppel to preclude the petitioner from advancing the argument that his property had always existed as two separate, discrete lots.

The Supreme Court vacated the Superior Court judgment, holding that the trial justice overlooked substantial evidence in the record indicating that the petitioner owned two separate lots that never merged.  The Supreme Court also held that the trial justice erred by invoking judicial estoppel to prevent the petitioner from arguing that his property had always consisted of two lots.  Finally, the Court determined that the Scituate Zoning Ordinance did not contain a frontage requirement for the petitioner’s residential district and declined to read such a requirement into the ordinance.  The Court remanded the case to the Superior Court with instructions to remand the case to the respondent, the Scituate Zoning Board of Review, to treat the unimproved lot as a separate lot and not apply a frontage requirement to the petitioner’s application for a building permit.
 
Steven T. Burton v. State of Rhode Island et al., Nos. 12-213, 12-268 (December 20, 2013)
The plaintiff, Steven T. Burton, appealed a Superior Court decision in favor of the defendant, State of Rhode Island.  The seventeen-year-old plaintiff was injured while exploring the reputedly haunted site of the former Ladd Center.  Rather than encountering ghosts, the plaintiff and his companions discovered four glass bottles containing a clear liquid that was later revealed to be sulfuric acid.  As the plaintiff was attempting to exit a building on the property, one of the bottles broke, splashing him with its contents and severely burning him.
 
Conceding his status as a trespasser, the plaintiff sought recovery from the State of Rhode Island under the doctrine of attractive nuisance.  The Supreme Court affirmed the judgment of the Superior Court, holding that, because the plaintiff was old enough to appreciate the risk of breaking into an abandoned building and of transporting a substance which he admitted he had reason to believe was hazardous, the doctrine of attractive nuisance was inapplicable to this case.  Therefore, because the plaintiff was a trespasser whom the state did not discover in peril, as is required to establish a duty of care, the state owed him no such duty.
Walter J. Mruk, Jr. v. Mortgage Electronic Registration Systems, Inc., et al., No. 12-282 (December 19, 2013)
The plaintiff, Walter J. Mruk, Jr., appealed from the entry of summary judgment in the Superior Court in favor of defendants Mortgage Electronic Registration Systems, Inc. (MERS), IndyMac Mortgage Services (IndyMac), OneWest Bank, FSB (OneWest), and Federal National Mortgage Association (FNMA).  On appeal, plaintiff argued that the trial justice erred in holding that no genuine issues of material fact existed and that defendants were entitled to judgment as a matter of law.  The plaintiff also argued that the assignment of his mortgage from MERS to FNMA was not valid and that the foreclosure sale was not proper.
  
The Supreme Court held that homeowners in Rhode Island have standing to challenge an invalid, ineffective, or void assignment of a mortgage on their homes.  The Supreme Court rejected all of plaintiff’s other arguments on the merits based on its holding in Bucci v. Lehman Brothers Bank, FSB, 68 A.3d 1069 (R.I. 2013), and concluded that the assignment of the mortgage was valid and that FNMA had the authority to foreclose on Mruk’s property.  Accordingly, the Supreme Court vacated the judgment of the Superior Court as to standing but affirmed the judgment of the Superior Court on all other claims.
State v. Paul Castriotta, No. 12-201 (December 17, 2013)
The defendant, Paul Castriotta, appealed from an order of the Superior Court that denied his motion to vacate judgment and sentence.  The defendant alleged that his nolo contendere plea to second-degree child-molestation charges should be set aside because his attorney did not inform him that his attorney had a personal conflict in continuing to represent the defendant.  The attorney disclosed to the defendant that someone close to him had been the victim of a sexual assault similar in nature to the charges to which the defendant had admitted.  On appeal, the defendant argues that he was not adequately represented.

The Supreme Court concluded that the defendant’s appeal is not properly before the Court.  Under Rule 32(d) of the Superior Court Rules of Criminal Procedure, once the trial justice has imposed sentence, any issue that relates to the validity of the plea can be addressed only through postconviction relief.  Regardless, the Court noted that the alleged sexual assault that caused the attorney’s conflict did not occur until after the defendant had pleaded.

Accordingly, the Court affirmed the order.
Jorge M. DePina v. State of Rhode Island, No. 11-259 (December 6, 2013)
Gelci Reverdes, who testified as an eyewitness in the 1998 murder trial of the applicant Jorge M. DePina, appealed from a Superior Court order denying her motion to quash a subpoena duces tecum seeking discovery of her medical, psychiatric, and psychological health care records.  On appeal, Reverdes argued (1) that the trial justice abused his discretion by denying the motion to quash, because the requesting party failed to show a particularized need for the information or that the information was relevant to the proceedings, and (2) that the trial justice failed to determine that the need for disclosure outweighed Reverdes’ privacy interests.
    
After a careful review of the record, the Supreme Court held that the trial justice erred in denying the motion to quash without first conducting the interest-weighing analysis required by the Rhode Island Confidentiality of Health Care Information Act, G.L. 1956 § 5-37.3-6.1(d), (e).  Accordingly, the Supreme Court vacated the order and remanded the case to the Superior Court to make additional findings consistent with § 5-37.3-6.1(d), (e).
State v. Jaylon Baker, No. 12-253 (December 5, 2013)
The defendant, Jaylon Baker, appealed from a Superior Court judgment of conviction of assault with a dangerous weapon, carrying a pistol without a license, and using a firearm while committing a crime of violence.  The trial justice’s denial of the defendant’s motion for a new trial provided the sole predicate of the appeal.  The defendant argued that the trial justice overlooked and misconceived material evidence when denying his motion for a new trial.  Specifically, the defendant asserted that the trial justice erred by accepting the testimony of the complaining witness (a police officer) over that of the defendant, because the complaining witness’s testimony was not credible and was not supported by the physical evidence.  The Supreme Court determined that the trial justice articulated adequate grounds for denying the defendant’s motion and did not overlook or misconceive material evidence when making his decision.  Accordingly, the Supreme Court affirmed the Superior Court’s judgment of conviction.
Joanne Miller v. Henry Saunders et al., No. 12-273 (December 5, 2013)
The plaintiff appealed from a Superior Court order granting summary judgment for the defendants.  The plaintiff challenged the trial justice’s rulings that the plaintiff’s deceased ex-husband created a valid custodial trust with regard to his life insurance proceeds and that this custodial trust did not violate a property settlement agreement executed by the plaintiff and the decedent in conjunction with their divorce.  The plaintiff argued that the decedent did not create a legally cognizable trust because the property settlement agreement required him to maintain his life insurance policy for the benefit of his minor children, and because his written declaration of trust did not comply with the statutory requirements for creating a custodial trust pursuant to the Rhode Island Uniform Custodial Trust Act.

The Supreme Court held that the decedent did create a valid custodial trust and that this trust did not violate the terms of the property settlement agreement.  Specifically, the Supreme Court interpreted the phrase “in substance” in G.L. 1956 §§ 18-13-3(a), 18-13-18(b)(4), and held that this phrase does not require a verbatim recitation of the statute’s suggested language for the creation of a valid custodial trust.  The Supreme Court also held that the property settlement agreement was not ambiguous, and that its terms allowed the decedent to channel the insurance funds to his children by way of a custodial trust.
Dennis Martin, in his capacity as Executor of the Estate of Camella L. Martin v. Michael Lawrence, alias, et al., No. 12-297 (December 5, 2013)
The plaintiff, Dennis Martin, as administrator of the estate of his mother, Camella L. Martin, appealed from a judgment entered by the Superior Court in favor of defendant, Michael Coyne, after a jury trial in an automobile accident negligence action.  The plaintiff also appealed from a denial of plaintiff’s motion for judgment as a matter of law or, in the alternative, for a new trial.  On appeal, plaintiff argued that the trial justice erred in granting defendant’s motion in limine to exclude a document entitled “Notice of Injury—Proof of Loss” which Mrs. Martin had filled out and submitted to Allstate Insurance Company in which she gave a brief description of how the accident occurred.  The plaintiff contended that the document should have been admitted pursuant to the business records exception of Rule 803(6) of the Rhode Island Rules of Evidence.  The plaintiff also argued that the trial justice erred in denying his motion for judgment as a matter of law or, in the alternative, for a new trial because the jury verdict was inconsistent with the evidence.
  
The Supreme Court rejected plaintiff’s argument, holding that the trial justice had not abused his discretion in excluding the document because it had not been properly authenticated as required by Rule 803(6).  The Court also held that the trial justice had not erred in denying plaintiff’s motion for judgment as a matter of law or for a new trial.  Accordingly, the Court affirmed the judgment of the Superior Court.
State v. Robert Raso, No. 11-364 (December 3, 2013)
The defendant, Robert Raso, appealed from a Superior Court judgment of conviction declaring him to be in violation of the terms of his probation and sentencing him to serve twenty-five years of his previously imposed sentence. The defendant argued that the complaining witnesses’s testimony was inconsistent and not credible and that, therefore, the hearing justice acted arbitrarily and capriciously in finding a violation.

The Supreme Court affirmed the Superior Court’s decision, holding that the hearing justice had adequately explained the reasoning behind her credibility findings.  Further, the Court held that there was more than sufficient evidence adduced at the violation hearing to support the hearing justice’s credibility assessments and findings. 
State v. Charles Mitchell, No. 12-161 (November 27, 2013)
The defendant, Charles Mitchell, appealed from a Superior Court judgment of conviction of two counts of first-degree child molestation and five counts of second-degree child molestation.  On appeal, the defendant argued that the trial justice abused his discretion in admitting evidence of the defendant’s other bad acts under Rule 404(b) of the Rhode Island Rules of Evidence.  Second, the defendant challenged the trial justice’s denial of his motion for a new trial.  Finally, he ascribed error to the trial justice’s denial of his request for the appointment of new counsel prior to sentencing.

The Supreme Court held that the trial justice did not abuse his discretion in admitting evidence that the defendant had allegedly molested the complainant’s sister.  In addition, the Court determined that the trial justice followed the proper procedure in ruling on the defendant’s motion for a new trial and did not overlook or misconceive material evidence.  Lastly, the Court concluded that the trial justice appropriately balanced the defendant’s right to counsel of his choice and the public’s interest in the expeditious administration of justice.  Thus, the Court upheld the trial justice’s denial of the defendant’s request for new counsel.
   
Accordingly, the Court affirmed the judgment.
Eloisa Gomes and Armando Gomes v. Mario Rosario, No. 2012-2 (November 27, 2013)
In this negligence action, resulting from an automobile collision, the defendant, Mario Rosario, appealed from a Superior Court judgment granting a new trial to the plaintiff, Eloisa Gomes.  After a seven-day trial, a jury found that Gomes had failed to prove, by a preponderance of the evidence, that Rosario was negligent.  The trial justice, however, granted the plaintiff’s motion for a new trial, finding that the jury’s assignment of “no liability to the defendant demonstrates that this court’s instructions were not clear or properly understood or applied by the jury in this case.”

The Supreme Court held that the trial justice did not overlook or misconceive material evidence in granting the plaintiff’s motion for a new trial.  Accordingly, the Court affirmed the judgment. 
George E. Morabit v. Dennis Hoag, No. 10-77 (November 26, 2013)
The plaintiff, George E. Morabit, appealed from the Superior Court’s grant of judgments as a matter of law in favor of the defendant, Dennis Hoag.  The plaintiff sought damages for the defendant’s alleged destruction of a stone wall and removal of trees from his property.  On appeal, the plaintiff argued that the trial justice erred in: (1) precluding the testimony of his expert witness on the subject of historic stone walls; and (2) not allowing the jury to consider his evidence of damages for the removed trees.

After a careful review of the record, the Supreme Court held that the trial justice committed reversible error by not allowing the plaintiff’s expert to testify on the subject of stone walls.  The trial justice applied an overly stringent standard for the admission of expert testimony.  Even assuming that historic stone walls are a novel field of study, there were sufficient indicia of reliability to allow the jury to consider the expert’s opinions.

With regard to the plaintiff’s second assignment of error, the Court held that the trial justice had improperly granted the defendant’s motion for judgment as a matter of law.  The trial justice invaded the province of the jury by making findings of fact and weighing the plaintiff’s evidence of damages.  Accordingly, the Supreme Court vacated the judgment of the Superior Court and remanded the matter for further proceedings.
State v. Lawrence Clay, Nos. 11-248, 12-321 (November 20, 2013)
The defendant, Lawrence Clay, appealed from a Superior Court judgment of conviction, having been found guilty of kidnapping of a minor and reckless driving, and sentenced to sixty years with thirty years to serve and thirty years suspended, with probation. On appeal, the defendant argued that the trial justice erred in admitting testimony about a prior alleged sexual assault perpetrated by the defendant.  Further, the defendant argued that the trial justice erred in denying the defendant’s motion for a new trial.

The Supreme Court determined that the evidence of the alleged sexual assault presented at trial related to one continuous event and was necessary in order for the jury to hear a complete and coherent rendition of what transpired relative to the kidnapping and reckless driving charges.  The Supreme Court affirmed the Superior Court judgment, holding that the evidence of the alleged sexual assault was not admitted merely to show the defendant’s bad character or propensity and was thus admissible under Rule 404(b) of the Rhode Island Rules of Evidence.

The Supreme Court also affirmed the Superior Court judgment denying the defendant’s motion for a new trial, determining that the trial justice carefully considered all of the consistencies and inconsistencies in the evidence as well as the credibility of the witnesses.
State v. Harold T. Drew, No. 12-131 (November 19, 2013)
The defendant, Harold T. Drew, appealed from a Superior Court order denying his motion for a new trial based on newly discovered evidence.  The defendant was convicted in 2004 on one count of first-degree murder, one count of discharging a firearm while committing a crime of violence, and three counts of entering a dwelling with the intent to commit a larceny therein.
 
After his conviction, the defendant became aware of a narrative written by a detective from the Swansea Police Department prior to the defendant’s trial.  The narrative was written in connection with an investigation of breaking-and-entering crimes that occurred in Massachusetts.  The defendant filed a motion for a new trial pursuant to Rule 33 of the Superior Court Rules of Criminal Procedure, arguing that the narrative disclosed new, material evidence concerning a cooperation agreement between the Swansea Police Department, the Rhode Island State Police, and a prominent state’s witness in the defendant’s murder trial.  The defendant also argued that the narrative evidenced the state’s failure to disclose information in violation of his constitutional due-process rights.  The trial justice conducted an evidentiary hearing and found that the narrative did not present new evidence and that the evidence was merely cumulative and impeaching.
 
The Supreme Court affirmed the order of the Superior Court.  The Supreme Court held that the trial justice did not overlook or misconceive relevant and material evidence when ruling on the defendant’s motion.  The Supreme Court further held that the defendant’s constitutional due-process rights were not violated because the state did not fail to disclose information.
John C. O’Donnell, III v. Anne A. O’Donnell, No. 12-52 (November 18, 2013)
The plaintiff, John C. O’Donnell, III, appealed from a Family Court order directing him to comply with a provision in a divorce settlement agreement that required him to maintain health insurance for the defendant, Anne A. O’Donnell.  On appeal, the plaintiff claimed that because there was no written marital settlement agreement, there was no meeting of the minds sufficient to form an enforceable agreement.  The plaintiff argued that a stenographic record of an oral agreement reached in open court is not sufficient to form a nonmodifiable marital settlement agreement.

After reviewing the record, the Supreme Court concluded that the Family Court justice did not err or abuse her discretion in finding that the parties recited and assented to the terms of their agreement in open court, and that the parties intended and agreed that the transcript of that agreement would serve as their marital settlement agreement.  Accordingly, the Supreme Court affirmed the Family Court order. 
Cynthia Caluori v. Dexter Credit Union, No. 2012-247 (November 18, 2013)
The plaintiff, Cynthia Caluori, appealed from a Superior Court judgment in favor of the defendant, Dexter Credit Union, denying her claim for an easement over Dexter’s property.  Mrs. Caluori had sought a declaratory judgment that an easement by prescription and an easement by implication existed that gave her the right to use a paved driveway on the northern border of her property.  On appeal, the plaintiff argued that the trial justice erred in finding that, because she had previously acknowledged the defendant’s superior title and because her use of the driveway was open but not notorious, she had failed to prove the existence of a prescriptive easement.  Further, the plaintiff argued that the trial justice erred in holding that she had not established an implied easement.

The Supreme Court held that the trial justice erred by relying solely on the original warranty deed, as well as a notice of intent to dispute which was not offered in evidence, to defeat the plaintiff’s claim of hostility and claim of right.  Further, the Supreme Court held that, under the facts of this case, there was no distinction between the requirements of open and notorious use and because the plaintiff had proven her use of the disputed parcel was open, it follows that the use was notorious.  The Supreme Court vacated the portion of the Superior Court judgment that held that Ms. Caluori had not established notorious use, and it directed the Superior Court on remand to make further findings regarding the element of hostility.

Finally, the Supreme Court held that there was no implied easement because Mrs. Caluori had not clearly and convincingly proven that the disputed property was “reasonably necessary for the convenient and comfortable enjoyment of the property” at the time of severance. Vaillancourt v. Motta, 986 A.2d 985, 987 (R.I. 2009) (quoting Wiesel v. Smira, 49 R.I. 246, 250, 142 A. 148, 150 (1928)).
State v. Emanuel Baptista, No. 12-11 (November 18, 2013)
The defendant, Emanuel Baptista, appealed from a judgment of conviction after a jury trial declaring him guilty of two counts of first-degree child molestation and two counts of first- degree child abuse on a child under the age of five.  On appeal, the defendant argued that the trial justice erred in denying his motion for a new trial by having overlooked and misconstrued material and relevant evidence.  The defendant also claimed the trial justice erred because the jury verdict failed to do substantial justice between the parties.
  
After a thorough review of the record and the trial justice’s articulated reasoning in refusing to grant a new trial, the Supreme Court concluded that the trial justice independently weighed the testimony, evaluated the credibility of the witnesses, and did not overlook or misconstrue material evidence.  The Supreme Court also held that the trial justice did not need to examine the verdict for substantial justice because she agreed with the jury’s verdict of guilty.  Accordingly, the Supreme Court affirmed the judgment of conviction.
State v. Kendall Whitaker, No. 07-145 (November 13, 2013)
The defendant, Kendall Whitaker, appealed from a judgment of conviction for (1) murder, (2) robbery, (3) assault with a dangerous weapon, (4) carrying a handgun without a license, (5) using a firearm in the commission of a crime of violence, (6) discharging a firearm in the commission of a crime of violence, and (7) committing a crime of violence while armed and having available a firearm.  Whitaker argued that the trial justice committed error when she denied his motion for new trial, gave the jury confusing or improper instructions, denied his motion for judgment of acquittal, instructed the jury that the defendant was in custody without alerting the defendant that she was contemplating such an instruction, allowed too many leading questions by the state, and failed to record bench conferences.

The Supreme Court held that the trial justice’s analysis in her denial of the motion for new trial reveals specific factual findings that indicate that she found truth in some witnesses’ testimony despite her stated concern about the credibility of most of the witnesses.  The Court held that the jury instructions were warranted by the evidence, were not confusing, and accurately set forth the state’s burden of proof.  The motion for judgment of acquittal was properly denied because the state’s theory did not require impermissibly pyramiding inferences.

The Court determined that the trial justice should not have informed the jury that the defendant was in custody without following the procedure set forth in State v. Fenner, 503 A.2d 518 (R.I. 1986), but held that, based on the content of the instruction and the lack of an objection or motion to pass, reversible error had not occurred.

Finally, the Supreme Court held that the use of leading questions was not beyond the bounds allowed in a trial justice’s discretion and that the defendant failed to indicate what was said at unrecorded bench conferences, to what he objected, and how he was prejudiced, thereby precluding relief based on that argument.

The Court affirmed the judgment of conviction.
State v. Donald Young, No. 11-311 (November 7, 2013)
The defendant, Donald Young, appealed from a judgment of conviction for (1) the murder of Kasean Benton in violation of G.L. 1956 § 11-23-1, (2) conspiring to murder in violation of G.L. 1956 § 11-1-6, (3) discharging a firearm during the commission of a violent crime resulting in the death of another in violation of G.L. 1956 § 11-47-3.2, (4) assault with a dangerous weapon on Dukuly Torell Soko in violation of G.L. 1956 § 11-5-2, (5) conspiring with others to assault Soko with intent to murder in violation of § 11-1-6, (6) discharging a firearm while committing a crime of violence in violation of § 11-47-3.2, and (7) possession of an unlicensed firearm in violation of § 11-47-8(a).  On appeal, the defendant argued that the trial justice erred when he admitted evidence of gang affiliation and the earlier stabbing of one of the victims and testimony about an unsolved homicide.  The defendant further argued that his constitutional right against double jeopardy was violated because count 4, assault with a dangerous weapon with intent to murder, merged with count 6, discharging a firearm while in the commission of a crime of violence.
 
The Supreme Court held that the defendant had failed to preserve the issue about the admission of evidence and had waived that issue on appeal.  The Supreme Court further held that there was no double-jeopardy violation because this Court had previously determined in State v. Marsich, 10 A.3d 435, 442 (R.I. 2010), that the General Assembly clearly intended that consecutive sentences be imposed for certain crimes of violence committed by use of a firearm.

Accordingly, the Court affirmed the judgment of conviction.
Option One Mortgage Corporation v. Aurora Loan Services, LLC, as servicer for Mortgage Electronic Registration Systems, Inc., No. 12-229 (November 5, 2013)
The defendant, Aurora Loan Services, LLC, appealed from a grant of summary judgment by the Superior Court in favor of the plaintiff, Option One Mortgage Corporation (Option One), holding that the mortgage held by Option One was superior to the mortgage held by Aurora.  On appeal, Aurora argued that the trial justice was in error in concluding that a reference to a prior deed in the Option One Mortgage description was sufficient to put a subsequent mortgage holder on notice to make further inquiry as to the exact property encumbered by the Option One Mortgage.
 
The Supreme Court rejected Aurora’s argument, relying on its prior decision in In re Barnacle, 623 A.2d 445 (R.I. 1993).  The Court held that the reference to a prior deed in the Option One Mortgage, in addition to the tax assessor’s plat and lot number and street address, were sufficient to put a subsequent mortgage holder on constructive notice of the lot being encumbered by the Option One Mortgage.  Accordingly, the Court affirmed the grant of summary judgment in favor of the plaintiff, Option One.
State v. Victor M. Lopez, No. 10-283 (November 5, 2013)
The defendant, Victor M. Lopez, appealed from a Superior Court conviction for breaking and entering and for felony assault with a dangerous weapon.  On appeal, he argued that the trial justice erred in (1) denying his motion for a new trial; (2) not permitting defense counsel to question potential jurors about eyewitness testimony during voir dire; and (3) denying his motion for a judgment of acquittal on the charge of felony assault.
  
The Supreme Court held that the trial justice had not erred and had not overlooked or misconceived material evidence in denying Lopez’s motion for a new trial.  The Court also held that the trial justice did not abuse his discretion in curtailing during voir dire defense counsel’s questioning of potential jurors as to eyewitness testimony.  Finally, the Court held that the trial justice had not erred in denying the motion for a judgment of acquittal because the evidence supported the conviction of felony assault. 
State v. Brian Mlyniec, No. 12-154 (November 5, 2013)
The defendant, Brian Mlyniec, appealed from the order of the Superior Court denying his motion to reduce sentence under Rule 35 of the Superior Court Rules of Criminal Procedure.  The defendant alleged that his sentence of life imprisonment without parole for the first-degree murder of Kelly Anderson, which involved aggravated battery, was inappropriate because he was capable of rehabilitation.  On appeal, the defendant argued that the hearing justice abused his discretion in denying the motion to reduce the sentence.

The Supreme Court concluded that the hearing justice identified several circumstances to justify the defendant’s sentence including the severity and brutality of the crime and the defendant’s persistent refusal to take responsibility for Ms. Anderson’s murder.  The Court held that the sentence was neither without justification nor grossly disparate from other sentences generally imposed for similar offenses.

Accordingly, the Court affirmed the judgment.
In re Lauren B. et al., No. 12-232 (November 4, 2013)
The respondent appealed from a Family Court decree terminating his parental rights with respect to his daughters.  On appeal, the respondent argued that the Family Court trial justice erred in finding that: (1) the Department of Children, Youth, and Families (DCYF) made reasonable efforts to reunite his family; (2) there was no substantial possibility that the children could safely return to his care within a reasonable period of time; and (3) he had abandoned his daughters.

The Supreme Court affirmed the Family Court’s decree terminating the respondent’s parental rights.  The Court concluded that the evidence of record showed that DCYF had offered the respondent services aimed at correcting the reasons the children had been placed in care, but the respondent refused to cooperate with DCYF.  Accordingly, the Court held that there was ample evidence to support the trial justice’s finding that there was clear and convincing evidence of DCYF’s reasonable efforts to reunite the respondent with his daughters.  The Court further held that, in light of the respondent’s failure to complete the requirements of his case plans, there was no error in the trial justice’s finding that the children could not safely return to the respondent’s custody within a reasonable period of time. 
           
The Supreme Court declined to pass on the respondent’s additional allegation of error.
Anthony Perkins v. State of Rhode Island, No. 12-174 (November 4, 2013)
The applicant, Anthony Perkins, appealed from a judgment of the Superior Court denying his postconviction-relief application.  Perkins had previously pled nolo contendere to two counts of second-degree child molestation, and he applied for postconviction relief based on his assertion that his counsel erroneously advised him that a plea was necessary to prevent the state from attempting to revoke his probation stemming from an earlier robbery conviction.  Perkins argued that the advice was erroneous because the robbery conviction was entered after the acts underlying the molestation charges.  On appeal, Perkins contends that the trial justice erred when he denied the application.

The Supreme Court held that there was no basis to conclude that the trial justice committed error when he found that the applicant had never received the advice that he contended was erroneous.  The Court further held that, even if such advice had been given to him, the applicant could not show the prejudice required to prevail on his claim because the sentence he received pursuant to his plea agreement was more favorable than the sentence he could have received had he been convicted after a trial.

The Supreme Court affirmed the judgment of the Superior Court.
Peter Wyso v. Full Moon Tide, LLC., et al., Nos. 12-195, 12-359 (November 1, 2013)
In these consolidated appeals, the plaintiff, Peter Wyso appealed a Superior Court entry of summary judgment in favor of the defendants, Full Moon Tide LLC and Strings & Things, Inc. and Deborah and Frederick Howarth.  While vacationing on Block Island, the plaintiff fell and suffered injuries on a deteriorated sidewalk in front of 104 Water Street.  The plaintiff filed a negligence claim against the tenants and owners of property abutting a public sidewalk at 104 Water Street in New Shoreham claiming that the defendants owed the plaintiff a duty of care.  The plaintiff made no argument that the defendants were in any way responsible for the condition of the sidewalk.  In granting the defendants’ motions for summary judgment, the Superior Court declared that there were no genuine issues of material fact and that the defendants owed the plaintiff no duty of care for the condition of the sidewalk.  The plaintiff argued that this Court can find a duty of care based on the five-factor ad hoc approach we took in Banks v. Bowen’s Landing Corp., 522 A.2d 1222 (R.I. 1987).  The plaintiff also contended that a New Shoreham municipal ordinance, which establishes that owners, or agents of owners, of property abutting public sidewalks have a duty to maintain sidewalks in good order and repair, creates a duty of care that runs to individual passersby.

The Supreme Court held that the ad hoc duty of care approach in Banks was not applicable to this case because the defendants did not possess or control the sidewalk.  The Supreme Court also held that consistent with previous jurisprudence, the municipal ordinance in question only established a duty of care to the town of New Shoreham, not to individuals.  Accordingly, the Supreme Court affirmed the Superior Court’s grant of summary judgment.
Eddie M. Linde v. State of Rhode Island, No. 12-125 (October 31, 2013)
The applicant, Eddie M. Linde, appealed from a judgment of the Superior Court denying his application for postconviction relief.  Linde was convicted of second-degree murder and related firearms offenses.  Before this Court, he contended that (1) the mandatory consecutive life sentence imposed under G.L. 1956 § 11-47-3.2 for discharging a firearm while committing a crime was unconstitutional; (2) the conviction and sentence for second-degree murder and discharging a firearm while committing a crime of violence resulting in death violates the Double Jeopardy Clause of the United States Constitution and article 1, section 7 of the Rhode Island Constitution; and that (3) trial counsel was constitutionally ineffective because (a) he failed to argue that the applicant was so intoxicated that he was incapable of knowingly, intelligently, or voluntarily waiving his right to remain silent; and (b) he failed to present a manslaughter defense based on diminished capacity at the plea-bargaining stage and again, at trial.
  
After careful review of the record, the Supreme Court affirmed the denial of Linde’s application.  The Court held that Linde’s convictions and sentences did not violate either double jeopardy principles or cruel and unusual punishment proscriptions of the state and federal constitutions.  Additionally, the Court held that Linde’s trial counsel was not constitutionally ineffective because a diminished capacity defense would have conflicted with trial strategy and his client’s wishes.
Jeanne E. Johnson v. QBAR Associates, No. 12-255 (October 29, 2013)
The plaintiff, Jeanne E. Johnson, appealed from a grant of summary judgment in favor of the defendant, QBAR Associates, concerning an action filed seeking to vacate a final decree foreclosing the plaintiff’s right to redeem property after a tax sale.  On appeal, the plaintiff argued that the notices of the petition to foreclose were inadequate because both referred to a tax sale and tax deed from the tax collector of the Town of Cumberland, rather than the North Cumberland Fire District.  The plaintiff also argued that a final decree barring her right of redemption could not have entered without a default having first entered against her.
      
After a careful review of the record, the Supreme Court concluded that, under the facts of the case, the plaintiff’s challenge to the validity of the final decree was properly limited to the grounds enunciated in G.L. 1956 § 44-9-24.  The Court determined that there was no indication that the plaintiff received inadequate notice of the petition or was otherwise deprived of due process in the foreclosure proceedings.  The Court also held that, pursuant to § 44-9-30, a default need not enter prior to entry of a final decree foreclosing upon the right of redemption.  Accordingly, the Supreme Court affirmed the judgment of the Superior Court.
  
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