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Opinions (1999-2000)

 
Supreme Court
Published Opinions 1999 - 2000 Term

State v. Adrian Bustamante, No. 97-32 (August 2, 2000)

Defendant and another man were tried jointly and convicted of first-degree murder and conspiracy to murder under circumstances involving torture and aggravated battery. Defendant was sentenced to life without parole. The Supreme Court affirmed, finding certain statements he made to officers were inadmissible hearsay, enlarged autopsy photographs were properly admitted as to torture and aggravated battery, conspiracy was shown by length of attack on victim, defendant was not prejudiced by joint trial, and sentence was appropriate and just.

In re Eric K. et al, No. 98-447 (August 2, 2000)

Respondent, a substance abuser and mother of three children in DCYF custody, appealed a decision of the Family Court terminating her parental rights to the three children.  The Supreme Court affirmed the Family Court’s decision, finding that because the respondent had a serious dug problem and had failed to complete numerous drug treatment programs, there was competent evidence to support the Family Court’s decision.

State v. William Milliken, No. 99-90 (August 2, 2000)

Defendant was convicted by a jury of two felony counts of assault on a person over sixty years of age in violation of G.L. 1956 § 11-5-10 and second-degree robbery in violation of G.L. 1956 § 11-39-1(b).  The trial court denied the defendant’s request to admit evidence of the victim’s bias, intent, or motive for fabrication.  The Supreme Court in upholding the defendant’s conviction, held that while the trial justice erred as a matter of law with respect to the denial of the defendant’s request to admit evidence of bias, intent or motive for fabrication, these errors were nonetheless harmless errors.  

State v. Andrew Znosko, No. 99-118 (August 2, 2000)

Defendant, on probation for various felonies, was arrested for murder.  The trial justice ordered the defendant to serve the balance of his previously ordered suspended sentence for the felonies which he was on probation for.  The Supreme Court affirmed, finding that the trial justice did not act arbitrarily or capriciously because defendant’s conduct violated the terms of his probation.

Gail DeRobbio v. Stop and Shop Supermarket d/b/a Super Stop and Shop, No. 99-184

Plaintiff brought an action for personal injuries arising from a slip-and-fall in defendant’s store.  The trial justice granted the defendant’s motion for judgment as a matter of law.  The Supreme Court reversed the trial justice, finding that reasonable minds could have disagreed with respect to whether the defendant’s employee, who was in close proximity to the plaintiff, knew or reasonably should have known of the dangerous condition which caused the plaintiff’s injuries.

Lincoln C. Almond, in his capacity as Governor of the State of Rhode Island et al v. The Rhode Island Lottery Commission, Newport Grand Jai Alai, LLC, and Burrillville Racing Association, d.b.a Lincoln Greyhound Park et al, No. 99-525 (July 27, 2000)

The court sustained defendant businesses' appeal and reversed the declaratory judgment for plaintiff governor that defendant state lottery commission did not have the authority under the state constitution to allow an increase in the number of video lottery terminals in defendants' places of businesses. The state legislature, which was given the authority to operate lotteries by the state constitution, could delegate some of its authority to defendant to carry out its constitutional duties. The functions that had been delegated were given to defendant with specific and detailed guidelines. Plaintiff had no power to control lotteries, and therefore there was no separation of powers issue. Federal case law regarding the delegation of powers was inapposite, as nothing prohibited the appointment of legislators to an administrative agency.

William G. Cain et al v. Joel Johnson, No. 98-30 (July 25, 2000)

Plaintiff’s decedent, while walking along a section of cliff walk, slipped and fell to his death off cliff.  Plaintiff brought a wrongful death action against the city, state, and university where the decedent was walking.  The trial court granted the defendant’s motion for summary judgment, finding that the defendants’ owed the decedent no duty of care.  The Supreme Court affirmed the trial court, holding that because the decedent was an undiscovered trespasser, the defendants’ were only required to refrain from wanton or willful conduct, which was not the case in the instant action.

In the Matter of Christopher F. Long, No. 00-270 (July 24, 2000)

Respondent, attorney, was suspended for 3 months from law practice in Massachusetts for neglecting a client matter and intentionally misrepresenting facts to the court.  Petitioner, Supreme Court Disciplinary Council, moved to have similar discipline imposed pursuant to R.I. Sup. Ct. R. 14.  The Supreme Court granted the petitioner’s request.

Marc N. Tancrelle v. Friendly Ice Cream Corporation, No. 99-380 (July 21, 2000)

Plaintiff, a water heater repairperson, brought an action for personal injuries when a stairway at a repair site collapsed.  The defendant subsequently replaced the rotted staircase.  At trial, a jury verdict was awarded to the plaintiff.  The Supreme Court affirmed, holding that the defendant destroyed potentially relevant evidence despite actual knowledge of pending litigation.  Consequently, the defendant’s actions were admissible to permit an inference that the staircase’s condition was potentially unfavorable evidence with respect to defendant’s liability.

State v. Chester R. Briggs, No. 99-145 (July 17, 2000)

Defendant, a New Hampshire resident indicted for a Rhode Island murder, moved pre-trial to suppress all statements he made to the police as well seized property.  The Court, in applying Rhode Island law, granted the defendant’s motions, except for the suppression of the seized property.  The Supreme Court affirmed the trial justice’s decision in part, finding that Rhode Island law was properly granted, some of the statements were admissible, and the suppression of the seized items was improper as the defendant had no reasonable expectation of privacy in his trash.

Cynthia Seddon, p.p.a. Tracy Lynn Seddon v. Jean O. Bonner, No. 99-283 (July 14, 2000)

Plaintiffs’ sought compensatory, punitive and injunctive relief against convicted child molester for conduct related to that party’s molestation conviction pursuant to G.L. 1956 § 12-28-5.  The defendant argued that the statute constituted the plaintiff’s exclusive remedy.  The Supreme Court held that the statute did not create an exclusive remedy and that it was mandatory unless the crime victim asked the court not to enter judgment. Further, considering the statute's constitutionality generally and as applied, the statute did not deprive defendant of due process or violate his right against self-incrimination.

Liberty Mutual Insurance Company v. Bartolo Tavarez, Administrator of the Estate of Bartolo A. Tavarez, No. 98-581 (July  14, 2000)

Decedent, an insured motorist, was shot and killed while driving a motor vehicle. His assailants had been pursuing decedent in an uninsured vehicle when the fatal shot was fired. The sole issue for determination was whether the lower court erred in declaring that appellee, decedent's father and administrator of his estate, was entitled to recover uninsured-motorist benefits arising from decedent's death when the only connection between the uninsured motor vehicle and the death was the fatal gunshot. The Supreme Court affirmed the lower court's decision finding that the Oliver Standard, necessitated a finding that the decedent's fatal injury was an unfortunate but foreseeable consequence both of the use of the automobile he was driving and the use of the automobile the assailants were driving.

Johnston Ambulatory Surgical Associates, Ltd. v. Patricia Nolan, in her capacity as Director of the Rhode Island Department of Health et al; St. Joseph Health Services of Rhode Island, Inc., doing business as St. Joseph Hosptial for Specialty Care and Our Lady of Fatima Hospital v. Patricia Nolan, in her capacity as Director of the Rhode Island Department of Health et al, No. 98-512 (July 12, 2000)

Appellant, ambulatory service, filed Certificate of Need (CON) applications to establish an ambulatory surgical center. The first application was rejected. While the appeal of the first application was pending, appellant filed a substantially identical second application which was approved by the appellee Health Department's new director. The Supreme Court consolidated both petitions into the instant action and denied certiorari in both cases.  Nevertheless, the Court noted that The first department director did not owe any special deference to the recommendation of the health services council and therefore denial of the first application was not error. Approval of the second application violated the doctrine of administrative finality, as there was no significant change in circumstances identified between the first and second application.

Ruben Dilone v. Anchor Glass Container Corporation et al, No. 98-439 (July 12, 2000)

Plaintiff alleged personal injuries to his wrist when a glass juice bottle shattered when he attempted to open it.  In an action against the juice company, bottle maker, and market, the defendant juice company sought and was denied judgment as a matter of law, arguing that there was no competent evidence to show that the bottle left the manufacturing plant in a defective state.  The jury subsequently awarded the plaintiff damages in the amount of $75,000.  The plaintiff petitioned and was granted a motion for additur, claiming that the $75,000 award was inadequate.  The Supreme Court affirmed the trial court’s decisions.  

Robert Schultz, Individually and as Parent and Next Friend of Patricia M. Schultz, a Minor v. Foster-Glocester Regional School District et al, No. 98-564 (July 12, 2000)

Plaintiff’s daughter alleged personal injuries from a cheerleading practice accident at defendant’s school.  The court held that plaintiff's daughter, as both a student and a cheerleader, was an identifiable person to whom the school district owed a special duty, her injuries were sufficiently foreseeable, and thus the special duty doctrine was triggered.  The case was remanded for a trial on the merits relating to the question of assumption of the risk by the minor.

In re Chester J., No. 99-112, (July 12, 2000)

Appellants, mother and father, appealed from a Family Court decree granting the appellee, DCYF’s decision to terminate the appellants’ parental rights to their child.  The Supreme Court affirmed the trial justice’s decision, finding that because the evidence of abuse was so overwhelming the State was not required to prove which parent actually inflicted the abuse.  Allowing parents to ignore or to stand by while such abuse and neglect occurred was tantamount to the parents inflicting the abuse themselves for purposes of a termination pursuant to G.L. 1956 § 15-7-7(a)(2). Further, it was clear that G.L. 1956 § 15-7-7 should not have been interpreted to require reasonable efforts at reunification when the parents permitted, rather than inflicted, such horrific abuse. Judgment was affirmed.

Paul Hendrick, in his capacity as trustee v. Joyce C. Hendrick, Executrix of the Estate of Jeffrey P. Hendrick et al, No. 97-627 (July 10, 2000)

Plaintiff brought an action against defendant and appellant for specific performance of a stock purchase agreement, and sought corporate dissolution or buyout of appellant's shareholder interest in the parties' closely-held family corporation. Appellant filed counterclaims and cross-claims alleging breach of fiduciary duties, waste of corporate assets, and majority stockholder oppression. Appellant later amended her claims to include allegations of malicious prosecution and abuse of process. The trial justice dismissed appellant's claims. The Supreme Court reversed, holding that appellant's amended complaint sufficiently alleged conduct that was illegal, oppressive or fraudulent. The Supreme Court remanded with directions to conduct an evidentiary hearing to determine whether appellant was entitled to dissolution of the corporation, or in the alternative, whether she was entitled to a buyout of her shares. If a buyout was found to be warranted, the trial court was instructed to appoint an appraiser to determine the fair value of such shares.

Barbara Ogden as next friend of Brittany Chase Rath-Roth v. Sharolyn Lee Rath et al, No. 99-149 (July 10, 2000)

Respondent, biological father of a child, appealed from a trial justice’s order denying the respondent’s motion to vacate a previous order awarding temporary custody of the child to the petitioner grandmother. Respondent alleged that the trial justice had illegally granted temporary legal custody to petitioner grandmother in violation of the Uniform Child Custody Jurisdiction Act. The Supreme Court affirmed the trial justice’s order. The Court found that G.L. 1956 §15-14-4(a)(3)(i) permitted the trial justice to assume emergency jurisdiction in cases where a child was physically present in Rhode Island and had been abandoned. The Court found that the trial justice properly exercised emergency jurisdiction over the matter and that the emergency jurisdiction exercised by the trial justice had not yet abated. 

State v. Kenneth S. Rice, No. 98-488 (July 7, 2000)

Defendant convicted of and sentenced to lifetime imprisonment for sexual abuse of minor step-daughter and another child.  Defendant alleged various violations of the U.S. and R.I. Constitutions, claiming that trial justice erred by denying defendant’s pre-trial motion to sever, admission of bad character evidence against defendant, denial of access to discoverable exculpatory evidence, an refusal to allow testimony regarding victim(s) medical examination allegedly showing no evidence of sexual molestation.  The Supreme Court affirmed the trial justice, holding that the admission of adverse character evidence was relevant to show the defendant’s lewd disposition and motives for sexual molestation, the admission of evidence of the defendants drinking was harmless error, and sealing of the victim(s) medical records was proper since it would not tend to exculpate the defendant.

Casco Indemnity Company v. Kevin O'Connor, No. 99-35 (July 6, 2000)

Following a collision between insured and uninsured motorists, the uninsured motorist filed a personal injury case against defendant insured. Defendant's insurer hired an attorney to represent him. While that suit was pending, defendant filed a personal injury claim against his insurer. Meanwhile, the first suit went to arbitration and was settled, the arbitrator apportioning liability 50 percent to each driver, but the attorney failed to notify defendant. Subsequently, plaintiff insurer filed for and won a declaratory judgment that the first arbitration was binding in the second. Defendant appealed, arguing collateral estoppel should not have applied when the defense counsel in the first arbitration was hired by the defendant insurer from the second suit. The Supreme Court sustained the appeal, finding defense counsel hired by plaintiff failed to fulfill her professional and ethical responsibilities to defendant so liability was not fully and fairly litigated. The Supreme Court vacated the declaratory judgment.

Thomas R. DiLuglio v. Providence Auto Body, Inc. et al, No. 97-285 (June 30, 2000)

The plaintiff attorney had set up defendants’ businesses and gave defendants $ 25,000, which defendant claimed was a loan rather than investment. When business succeeded and defendants refused to share their success with plaintiff, he filed to dissolve the corporations. The trial court found no attorney-client relationship and refused to void the minority shareholder transactions but rejected plaintiff's misconduct claims. A special master valued the stock and plaintiff was awarded the nondiscounted value plus interest. The Court reversed in part, finding there was an attorney-client relationship, which plaintiff breached, but defendants' repeated acquiescence waived their right to void his shareholder status, and estopped them from seeking to negate that status. The stock was properly valued but the interest was to be simple interest from date of election.

Virginia  Cherubino v. Anthony Cherubino et al, No. 99-100 (June 28, 2000)

The parties entered into a relationship, although the defendant was legally married to another woman. The two purchased a home as tenants by the entirety, a legal estate normally reserved for the lawfully wedded. The plaintiff eventually learned that defendant was married and filed a civil complaint seeking partition. The defendant claimed to have severed any kind of joint interest with the plaintiff via a straw transaction with his sister. The trial court affirmed a master's finding in plaintiff’s favor, granting partition. The Court affirmed. The defendant had waived their right to a jury trial and consented to have the matter referred to a master where their own attorney drafted the consent order. They waived their rights to appeal the report by failing to make timely objection to the master's report.

Mary P. Mitchell v. Charles Mitchell, No. 98-479 (June 28, 2000)

The father died and left a will establishing a family trust. The will named the wife, and two sons as co-trustees and co-beneficiaries. Following father's death, disputes arose between the parties concerning whether one son owed money to the trust. The Court found that summary judgment was inappropriate since factual questions existed concerning the amounts owed by the son to the trust. Also, a rebuttable presumption arose when the wife converted the CD accounts into joint accounts with the son that she intended to make a gift of a present joint interest.

Robert Kay v. Edward Menard, No. 97-535 (June 27, 2000)

A jury found defendant negligent for failure to repair an elevator which caused plaintiff to fall four stories down the elevator shaft. The Court held the trial court properly admitted evidence of defendant's intoxication and alcoholism because it was important for the jury to determine whether the defendant's almost constant state of inebriation was the real cause for his ignoring and/or inaction in failing to correct the dangerous mechanical interlock defect in the fourth-floor hallway door leading to the elevator. The trial court properly declined to instruct jury on freight elevator issue since the elevator was not being used in that capacity at the time of the accident.

Stephen L. DelSesto et al v. Unknown Heirs, Devisees and/or Assigns of Janet Lewis, No. 99-38 (June 26, 2000)

The plaintiffs' and defendant's lots were adjacent each other and had originally been owned by one person. After the original owner conveyed one lot to defendant and her ex-husband, the owner and defendant's ex-husband agreed to a land swap so defendant's property would have more frontage, and the original owner's lot would comply with new zoning laws. The swap was never recorded. The plaintiffs acquired the second lot, and defendant became the sole owner of her lot. Summary judgment was improper where defendant claimed she was unaware of a land swap and did not agree to it. Factual issues remained as to who took care of which areas of the lots, the nature and extent of the contested area's use, and whether defendant was ever aware of the land swap, or had acquiesced in the new boundary between the lots.

Michael Dubis v. East Greenwich Fire District, No. 99-131 (June 26, 2000)

The plaintiff firefighter collected disability benefits and terminated his employment with defendant fire district after a job-related accident. The defendant paid him a cost of living allowance pursuant to his employment contract. The plaintiff subsequently sued, contending the cost of living allowance in plaintiff's second year of unemployment was erroneously calculated. The Court held that the terms of the agreement providing for calculation of the cost of living allowance were most reasonably interpreted as providing for the calculation to be applied against the total pension benefit of the previous year, including the first year's cost of living allowance. As a result, the court held the trial court erred in finding that defendant had correctly calculated the second year's cost of living allowance.

State v. David Lessard, No. 99-80 (June 26, 2000)

During defendant’s bench trial for rape, the prosecution advised the court and defense counsel it was prepared to reduce the charge, allow a nolo contendere plea, and recommend no incarceration. The trial justice expressed surprise. He then asked the victim, who was the complaining witness, what she thought about the arrangement. She expressed concern. Following a recess, defense counsel moved to pass the case, arguing it was improper for the court to address the complaining witness during trial. The motion was denied and defendant was found guilty of rape and sentenced to 15 years. The Court affirmed, finding defendant had waived his objections by not objecting at trial and had shown no bias on the judge's part.

David A. McLaughlin v. Jose F. Moura et al, No. 99-311 (June 26, 2000)

While delivering mail to defendants' property, plaintiff letter carrier was struck and injured by what he claimed was an unsafe accumulation of ice that had fallen from defendants' roof. The Court upheld the trial court's exclusion of expert testimony that claimed defendants' roof gutter was defective, as the expert never tested the gutter nor observed any accumulation of snow or ice on the roof. Additionally, the court refused to apply the doctrine of res ipsa loquitur to infer that falling ice from the roof, combined with the defective gutter, caused plaintiff's injury, as plaintiff had provided no evidence that snow or ice accumulated on the roof. 

Louis E. Shatney v. State, No. 99-274 (June 22, 2000)

The petitioner was convicted of sexual molestation and sexual assault. The petition asked for a writ of certiorari and a motion to appoint counsel, claiming he was never represented at trial. The record contained an unsigned entry of appearance and a letter from trial court to the petitioner stating that appointed counsel had found his claims frivolous. The Court determined that petitioner was entitled to counsel in order for the trial court to determine if grounds existed for a post-conviction relief petition since petitioner’s first application for post-conviction relief had not been heard and nothing in the record indicated what issues petitioner sought to raise in his post-conviction relief petition. The trial court could determine if claims were frivolous only after petitioner had been afforded counseled opportunity to present those claims.

Textron Inc. v. Aetna Casualty & Surety Co., et al, No. 98-357 (June 22, 2000)

The plaintiff insured, an aerospace equipment manufacturer, sued defendant insurer for reimbursement of clean-up costs after the Environmental Protection Agency sued plaintiff under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§ 9601 to 9675 (CERCLA), to clean up groundwater contamination due to chemical seepage from the artificial holding pond used to treat its toxic chemical wastes. After treatment, these wastes were released into the site's sanitary-drainage system but, unbeknownst to plaintiff, gradually seeped from the pond over the years, at least contributing to groundwater contamination. The defendant won partial summary judgment. The Court reversed, finding there were genuine issues of material fact as to whether plaintiff could meet the "discoverable by reasonable diligence" trigger-of-coverage test and whether plaintiff tried to contain and treat the waste appropriately. Ambiguous word "sudden" only barred coverage for intentional or reckless pollution under pollution-exclusion clause. 

Irene L. Kenny v. Barry Wepman, MD, No. 99-556 (June 19, 2000)

The plaintiff sued defendant ophthalmologist after plaintiff lost sight in her left eye following the opthalmologist’s surgery to remove a cataract. A jury verdict returned for defendant on all counts. The Court held the trial court's decision to grant a new trial on allegations of negligent recommendation of surgery and lack of informed consent was not clearly wrong and did not overlook material evidence. There was no error in finding that plaintiff did not complain of her left eye vision prior to surgery nor in granting a new trial on the negligent recommendation of surgery claim. Similarly, there was evidence to support the trial court's finding that plaintiff was not apprised of alternatives to surgery, and was thus entitled to a new trial on her claim for lack of informed consent. The order granting a new trial was affirmed.

Seymour Levin v. George F. Kilborn, et al, No. 99-1 (June 19, 2000)

The plaintiff hired defendant investor to manage his retirement funds. In 1993, the mortgage company in which defendant placed plaintiff's money went bankrupt and a state agency found defendants had violated securities laws. The plaintiff sued in 1994, claiming federal and state statutory violations as well as common law violations. The trial justice dismissed statutory claims as being time barred and common law claims on grounds they were essentially subsumed by state statutory claim. The Court affirmed in part, finding statutory claims were properly dismissed but common law claims were not preempted by statute. The plaintiff was on notice of his losses in March 1993 and should have inquired into possible claims against defendants. However, Rhode Island Uniform Securities Act was not intended to supersede or replace common law actions for negligence or misrepresentation.

State v. Danny L. Brown, No. 99-234 (June 19, 2000)

The defendant was convicted of three counts of first-degree sexual assault and three counts of first-degree child molestation. The defendant was sentenced to concurrent terms of 40 years on each count, 20 to serve and 20 suspended with probation. The defendant moved to reduce the sentence pursuant to R.I. Super. R. Crim. P. 35. In response, the trial justice vacated the prior judgment and imposed an additional five years to defendant's sentence. The defendant appealed. The Court reinstated the first judgment, holding that the trial justice violated the United States Supreme Court's clear instruction that vindictiveness had to play no part in a decision to increase a sentence. If Court permitted the trial justice to increase a sentence on the basis of vindictiveness, then defendant would have been unconstitutionally deterred from exercising his legal right to seek a reduction in sentence. 

Smithfield Voters for Responsible Development, Inc. v. Alberto J. LaCreca, Jr., et al W/S Smithfield Associates, LLC (Intervenor), No. 99-557 (June 19, 2000)

The town council enacted a zoning amendment allowing intervening defendant developer to build a proposed $ 45 million retail shopping center on a seventy-five acre site. Certain town residents and landowners formed plaintiff nonprofit corporation to appeal the amendment. The trial court struck down the amendment. On writ of certiorari, the Court quashed the trial court's judgment by holding that plaintiff lacked standing because a nonprofit corporation whose members are municipal residents and local landowners do not qualify as an "association" under G.L. 1956 § 45-24-71 for the purpose of prosecuting an appeal of a zoning amendment to the superior court. The legislature did not intend to allow residents and landowners to insulate themselves from personal liability for potential attorney fee awards and other sanctions for filing frivolous appeals.

In re Alex B., No. 98-498 (June 16, 2000)

The respondent mother’s son developed attachment disorder and other severe problems and was placed in foster care when her substance abuse and other problems made it impossible for her to care for him. The petitioner agency sought to terminate parental rights. The respondent opposed petitioner on grounds that respondent was overcoming problems and was taking responsibility for her other children. The Court held that the mere fact that foster parents were better at parenting than natural parents did not constitute evidence supporting a finding of unfitness, and the Court acknowledged respondent's hard work and progress in parenting. However, since respondent had created her son's special needs, and now his continued safety required a special level of parenting, the trial court did not err in finding respondent unfit for this task.

Terrace Group et al v. Vermont Casting, Inc. et al, No. 98-508 (June 16, 2000)

The plaintiffs contracted with defendant Vermont Corporation to allow defendant to make royalty payments to plaintiff in exchange for use of plaintiff’s charcoal grill design.  Vermont law was to govern the contract. A dispute arose when defendant developed a gas grill, and plaintiff claimed the grill had features of their grill.  The plaintiffs won in arbitration and were awarded attorney’s fees due to defendant's bad faith in the arbitration. The trial court confirmed but denied plaintiff’s request for attorneys fees for the confirmation proceedings. The Court held that since plaintiffs' right to the confirmation proceeding fees was unsettled, they were not entitled to them as a matter of right. The arbitrator did not exceed his powers in awarding attorney's fees for bad-faith conduct because the decision was permissible under state law.

State v. James H. Williams, Jr., No. 99-72 (June 15, 2000)

The defendant was convicted on drug charges after an informant wearing an over-the-air wire purchased drugs from him while officers listened. On appeal the Court held that the State did not violate R.I. Super. Ct. R. Crim. P. 16 by not providing him a copy of the statements made over the wire since the conversation was never recorded or transcribed—it was merely broadcast. The information gleaned was not exculpatory, so not producing it did not violate Brady. The Court held that the State did not violate the statute prohibiting interception of wire and oral communications because participant monitoring was not governed by the statute. 

State v. Christopher M. Botelho, No. 98-93 (June 14, 2000)

The defendant appealed his conviction for molesting his girlfriend's two daughters. The Court held that the trial justice did not abuse its discretion in limiting defendant's cross-examination about allegations of excessive discipline one of the victims had lodged in the past, concluding that the allegations were fundamentally different from a sexual molestation complaint. In addition, admitting the testimony of a physician who had performed a gynecological examination on one of the victims but was not a gynecologist was not an abuse of discretion because the doctor's clinical experience qualified her to give a medical opinion on examination results. The trial court did not abuse its discretion in excluding evidence about a relationship one of the victims had with an older man concluding that its questionable relevance was substantially outweighed by the danger of confusion and misleading the jury.

Debra L. Lamoureaux v. Merrimack Mutual Fire Insurance Co., No. 99-351 (June 8, 2000)

The plaintiff insured filed breach of contract and bad faith claims against defendant insurer. The claims were severed and defendant issued plaintiff a check to settle the breach of contract claim. The plaintiff cashed the check, but refused to sign the accompanying settlement stipulation. The plaintiff then filed a motion for production of documents relating to the breach of contract claim in order to pursue her bad faith claim. The trial court granted the motion. On petition for certiorari, the Court concluded that the plaintiff’s acceptance of the check manifested an intent to settle the breach of contract claim even though she did not sign the settlement stipulation. Having settled the contract claim, plaintiff was precluded from pursuing the bad faith claim.

State v . Randy J. Anderson, No. 99-106 (June 8, 2000)

The defendant challenged child molestation conviction on grounds of prosecutorial misconduct, erroneous denial of new trial, and misleading jury instruction on reasonable doubt. Although defendant failed to object to first and third issues at trial, the Court reviewed all alleged errors. Slight inconsistencies in victim’s testimony did not rise to the level of perjury or even serious inconsistencies affecting her credibility, so prosecution had nothing to correct. In ruling on motion for new trial, it was clear that trial justice had weighed all the evidence and credibility of witnesses, so denial of motion was proper. Finally, read as a whole and in context, the reasonable doubt instruction made the State's burden clear and did not minimize it.

Helen L. Reniere v. Barbara Gerlach
Barbara Gerlach v. Helen L. Reniere
, No. 98-390 (June 8, 2000)

A deceased man executed a quitclaim deed conveying his home to himself and his daughter as joint tenants. The deed included a clause that provided a life tenancy in the property to his girlfriend conditioned upon the payment of real estate taxes and maintenance of the property. The daughter and her husband, argued that the girlfriend failed to satisfy these conditions. The Court denied the appeal, because it was the deceased's desire to create a joint tenancy with rights of survivorship with the daughter, but also to provide a life estate for the girlfriend. The girlfriend did not allow permissive waste on property since the daughter paid the taxes and maintained the property, thereby preventing damage. The life estate was properly created and the girlfriend did nothing to strip herself of the interest.

Associated Builders & Contractors of Rhode Island, Inc. et al v. City of Providence v. Rhode Island Building & Constructions Trades Council, No. 99-136 (June 8, 2000)

The mayor of respondent city issued an executive order granting city departments discretion whether to require a project labor agreement (PLA) for public construction projects. The Superintendent of Parks in Providence determined that a PLA would be required for an upcoming major project. The non-union contractors claimed that the order raised the price of bids and effectively precluded them from submitting bids. The contract was given to a union contractor with a PLA in place. The trial court dismissed the non-union contractors' claims as moot. On appeal, they argued that their businesses were still adversely impacted from the PLA since it continued controlling the awarding of most construction projects. The Court determined the issue was moot as the project was already finished and it was not of such public importance to overlook the lack of a justiciable case or controversy.

Raymond Canario v. Edmond S. Culhane, Jr. et al, No. 99-36 (June 7, 2000)

The plaintiff was injured in a motorcycle accident after leaving his police barracks where he had gone to insure that flags had been taken down. The plaintiff applied for a disability pension pursuant to G.L. 1956 § 42-28-21(a) but defendant denied the pension. The trial court affirmed. The Court determined the trial court had subject matter jurisdiction pursuant to G.L. 1956 § 9-30-2. The Court concluded the trial court properly applied an arbitrary and capricious standard of review to defendant's decision. The Court upheld the trial court’s determination that the accident was not in the course of the performance of plaintiff's duty because plaintiff made only a cursory check of the barracks, and then left for home on his privately owned motorcycle. 

State v. Roger E. Bruyere, No. 99-122 (June 6, 2000)

The defendant was convicted of arson and appealed, arguing that his due process and right to counsel were denied. At arraignment, defendant stated that he wished to proceed pro se. An attorney was appointed to act as standby counsel but defendant moved to have counsel withdrawn. The trial justice found that defendant understood the consequences of self-representation and granted his motion. When a jury was later impaneled, defendant requested another standby counsel. That counsel declined because he was unprepared and the court denied defendant’s request for a continuance. The Court affirmed, concluding that defendant had knowingly waived his right to counsel and the denial of a continuance to obtain counsel was not an abuse of discretion. 

State v. George Hull, No. 99-114 (June 5, 2000)

The defendant was charged with sexual assault while on probation. At combined revocation hearing and trial, the trial justice found that defendant was a violator, revoked probation, and ordered him to serve sentences consecutively. A mistrial was ordered on sexual assault when prosecutor made prejudicial comments in his opening statement, and defendant moved to dismiss on double jeopardy grounds. The trial justice determined that the standard of proof for finding a probation violation, reasonably satisfactory evidence, was met. Competent evidence in the record supported the determination that there was no prosecutorial conduct intending to lure defendant into moving for mistrial, which would be grounds for a double jeopardy violation upon a retrial. There is a presumption that sentences run concurrently, and where, as here, there is no evidence to rebut that presumption, defendants should serve sentences concurrently.

John M. Cicilline v. Ford Motor Credit Company et al, No. 97-217 (May 31, 2000)

The plaintiff was injured in an automobile accident in late 1991 and testified during his 1996 trial that he suffered several herniated disks, osteoarthritis, and other pain. He had to stop playing golf, cancelled his country club membership, and lost revenue in his law practice. A jury verdict in favor of plaintiff awarded him his medical expenses and a sum for his pain and suffering. His motions for new trial and additur based on the paucity of the award were denied. On appeal, he argued the jury was improperly influenced by his status as a successful attorney, ignored his lost earning, and did not adequately compensate him for his pain and suffering. The Court affirmed, as there was sufficient credible evidence in the record to support the jury's verdict.

Ruth LaFratta v. Rhode Island Public Transit Authority et al, Kimberly F. Rhodes v. Bryant E. Barnes et al, No. 99-286 (May 31, 2000)

The plaintiffs were bus passengers injured in a collision with a motor vehicle driven by defendant driver. The motor vehicle operated by defendant was owned by defendant rental car company and rented by another defendant. Both plaintiffs alleged defendant driver negligently operated the vehicle. The defendant moved for summary judgment on grounds it had not consented to defendant driver operating its vehicle. The trial court granted the motion. On appeal, the Court affirmed, holding defendant rental car company was not liable to defendant driver under G.L. 1956 § 31-33-4 because liability depended upon whether he was an authorized driver and he drove the car without company's permission. 

Arlene D. Lombardi, d.b.a. A.D.L. Realty v. Rhode Island Insurers' Insolvency Fund, No. 98-542 (May 25, 2000)

The defendant fund appealed a judgment awarding plaintiff insured damages in the amount of the insurance policy limits for fire loss and denying defendant's motion to dismiss filed on grounds that plaintiff was not a real party in interest. The plaintiff's insurer was declared insolvent and her mortgagee, the policy’s loss payee, was in receivership but had another insurance policy to cover the loss. The Court affirmed the judgment and denial of defendant's motion to dismiss, finding that plaintiff does not have to look to the mortgagee's policy merely because it was the loss payee on the policy. The defendant fund was obligated to protect the interests of insured persons whose insurers become insolvent. The Court also concluded that plaintiff was a real party in interest because she had a substantial interest in the property in excess of that owed to the mortgagee. 

In re Lara F. et al, No. 99-94 (May 24, 2000)

The petitioner agency sought to terminate respondent’s parental rights after 9 years of monitoring respondents. The Court held that legally competent evidence existed for trial justice to find that petitioner had made reasonable efforts to reunite children with respondents, and that respondents had failed or were unable to cooperate. The issue of whether trial court had improperly taken judicial notice of a much earlier child abuse conviction was not decided since trial justice stated he would not consider the conviction in deciding the case. 

Joseph Scolardi et al v. City of Providence et al, No. 98-535 (May 19, 2000)

The Retirement Board of the Employees' Retirement System of Providence (board) approved a disability retirement pension for plaintiff based on a health condition plaintiff claimed arose during his tenure as a firefighter for defendant city. Pursuant to the defendant city solicitor’s instructions, defendant city controller did not pay plaintiff the proceeds of the award. The plaintiff filed suit in seeking to order the release of the payments. Rather than issue the writ, the trial justice reviewed the board's decision and determined that based upon the evidence presented, plaintiff was not entitled to the benefits. The Court held that the trial justice was without authority to conduct a de novo review and vacated trial court’s judgment. 

State v. Sidney Clark, No. 97-104 (May 18, 2000)

The defendant was convicted of possessing a stolen motor vehicle and received an enhanced sentence as an habitual criminal pursuant to G.L. 1956 § 12-19-21. The trial court admitted evidence of a prison conversation between defendant and a prosecution witness that defendant had sold the stolen vehicle for cash and cocaine. On appeal, the Court upheld the admission of the conversion on grounds that R.I.R. Evid. 404(b) does not prohibit evidence of an uncharged crime or act if it is relevant to prove the crime at issue. In addition, prior inconsistent statements of a witness under R.I.R. Evid. 801(d)(1)(A) may be used as substantive evidence. The use of prior convictions in sentencing a habitual offender does not violate double jeopardy. 

Bernadine R. DiOrio v. Ronald C. DiOrio, No. 98-592  (May 17, 2000)

After granting plaintiff ex-wife’s petition for divorce, a family court magistrate apportioned and distributed the marital estate pursuant to G.L. 1956 § 15-5-16.1. Defendant, ex-husband, appealed, and the court held that the magistrate erred in calculating the marital portion of plaintiff's pension and had improperly deducted a portion of the pension determined to be premarital.  The court also found that the record failed to indicate plaintiff’s intention to  repurchase as part of her separate, nonmarital estate, and that the magistrate erred in deducting an allowance for future taxes on pension amounts awarded to plaintiff.  Finding that no evidence existed in the record relating to the amount of tax expected on the pension to support the decision, the court remanded those issues to the magistrate and affirmed the remainder of the judgment.

Virginia L. Sindelar v. Luis G. Leguia, No. 98-555 (May 17, 2000)

The plaintiff (mother) was appointed administrator of her 29-year-old son’s estate when he died intestate with no spouse or children. The plaintiff asked the probate court to deny defendant, the decedent's estranged father, any wrongful death proceeds thereafter obtained. The probate court denied the motion and the trial justice granted defendant’s summary judgment motion. The  Court held that the Wrongful Death Act, G.L. 1956 § 10-7-2, required that the wrongful death proceeds be shared equally by the parties, as they were decedent's heirs. The Court rejected plaintiff’s argument that recovery of " pecuniary damages" implied that a parent would have had to enjoy a benefit from the decedent's life to recover. The Court found no basis for this proposed filial-bond exception.

State v. Arthur E. Godette, No. 98-501 (May 15, 2000)

Criminal defendant was charged with driving a van without the consent of the owner, in violation of G.L. 1956 § 31-9-1 and with possession of a stolen vehicle, in violation of G.L. 1956 § 31-9-2.  Defendant moved to dismiss based on the doctrine of collateral estoppel and double jeopardy, which the trial justice denied.  On appeal, the court found without merit defendant's collateral estoppel contention because no identity in the issues existed between the two proceedings. Double jeopardy did not attach to the state's anticipated prosecution of defendant because each charge required proof of an element that the other did not.

In re Rachon W., No. 98-289 (May 15, 2000)

Respondent mother alleged that the trial justice misconceived or overlooked material evidence in finding her to be an unfit parent and erred in finding that reasonable efforts were made to reunite her with her son.  The court concluded that the trial justice did not err in terminating respondent's rights because the record revealed that appellee, state children's services agency, had made extensive efforts to assist respondent in overcoming her drug and alcohol addictions and had made several attempts to reunify her with her son.  Further, the trial justice did not err in determining that terminating respondent's rights was in the best interests of the child as he followed the procedures of G.L. 1956 § 15-7-7.  

In Re Raymond C. et al, No. 98-350 (May 15, 2000)

After a determination by a trial justice that respondent's four children were sexually abused and neglected by both parents, Department of Children, Youth and Families (DCYF) filed a petition to terminate the rights of both parents, pursuant to G.L. 1956 § 15-7-7(a)(3).  A trial justice granted the petition, and respondent appealed.  Judgment was affirmed because the record supported the trial justice’s finding that DCYF engaged in reasonable efforts to achieve reunification, and that reunification with the parents would not serve the children's best interests.

Paul  D. Jewell v. Margaret W. Jewell, No. 98-10 (May 12, 2000)

Plaintiff had a body attachment issued against him pursuant to a contempt order, and the family court declared void a divorce obtained by plaintiff in the Dominican Republic. Plaintiff was estopped from claiming that his true state of residency was Illinois, and could not assert that the family court was deprived of jurisdiction over the divorce simply because it was more expeditious to seek a divorce in another jurisdiction.  The family court was within its authority in issuing a restraining order because plaintiff was pursuing the same relief in a foreign tribunal.  It was appropriate to issue a body attachment upon plaintiff, determining that he had not only violated the restraining order, but also remarried after the Dominican Republic decree. The Dominican Republic divorce and remarriage were void as repugnant to Rhode Island law and policy.

Gail Hargreaves, Individually and in her capacity as the Administratrix of the Estate of John F. Hargreaves v. Allen Jack et al and Gail Hargreaves, Individually and in her capacity as the Administratrix of the Estate of John F. Hargreaves v. Steven Reis et al, No. 98-563 (May 12, 2000)

After appellant's deceased husband, a firefighter, was ordered by supervisors into a burning structure and sustained fatal injuries, appellant sued, claiming negligent support and supervision at the fire scene.  Trial justice dismissed her wrongful death action, stating that the injured on duty statute (IOD), G.L. 1956 § 45-19-1 et. seq., was the exclusive remedy, which precluded negligence suits against superior and fellow officers.  The Supreme Court reversed, finding that the IOD was not an exclusive remedy for a surviving spouse and that the Wrongful Death Act, G.L. 1956 § 10-7-1 et. seq., was designed to remedy the losses of a surviving spouse.  

State v. Demetrius Jackson, No. 98-58 (May 2, 2000)

After a police officer and park ranger confronted two suspicious youths, a struggle ensued that resulted in defendant shooting and killing the park ranger.  Defendant was convicted of murder, among other crimes, and the Supreme Court affirmed.  Motion for judgment of acquittal on charge of assault with dangerous weapon upon late-arriving officer was properly denied, because even though appellant's gun had no more ammunition, the officer reasonably believed appellant possessed a weapon that could have inflicted injury on him.  Admission into evidence of live ammunition seized from scene and victim's bodies was proper as it bore witness to appellant's ability and preparedness to use the guns he carried that night.

James W. Thomas v. Philip N. Jacobs, No. 99-79 (May 2, 2000)

Plaintiff brought an action for contribution from the defendant, following the plaintiff's payment of less than half an outstanding debt that both parties jointly incurred.  The trial justice granted defendant's motion for summary judgment, and the Supreme Court affirmed, holding that plaintiff was not entitled to contribution from his co-guarantor when plaintiff paid less than half the total amount owed to the bank and secured a release in his name alone.

Joseph Artesani v. Glenwood Park Condomimium Association et al, No. 99-89 (May 1, 2000)

Defendant condominium association and manager raised assessment fees without holding a meeting or notifying plaintiff.  Plaintiff alleged that defendants mismanaged the association's meetings and finances, but the trial justice ruled that defendants did not mismanage their responsibilities.  The Supreme Court reversed, as the defendants did not abide by G.L. 1956 § 34-36-20(a), or the individual condominium's declaration.  Defendants were required to hold board meetings and notify plaintiff of the proposed assessment increase, giving her an opportunity to be heard.  As defendants did not do so, plaintiff was awarded all of the costs she incurred as a result of the assessment increases.

In re Dennis P., No. 98-560 (April 28, 2000) 

After respondent mother's parental rights to her child were terminated, respondent alleged that the child and family welfare agency had not made reasonable efforts to reunify respondent with her child. The court held that respondent's parental rights were appropriately terminated on the basis of previous involuntary terminations of parental rights regarding respondent's other children and, under those circumstances, the agency was not required to attempt to reunify the family.  Further, respondent's unsatisfactory demonstration of adequate parenting, substance abuse, unstable housing, mental health issues, poor living conditions, volatile family relationships, and mild retardation impairing her parenting ability supported the finding of respondent's unfitness.  

In, re Kadijah A. et al, No. 98-448 (April 28, 2000)

Respondent appealed the trial justice’s ruling that respondent mother was unfit to parent her children and that it was in the children's best interests to terminate respondent's parental rights. In denying respondent's appeal, the court determined that the evidence supported the trial court's findings that reasonable efforts were made to reunify respondent with her children, and that such efforts were unavailing because of respondent's refusal to complete any program to which she was referred. 

State v. John Catalano, No. 98-59 (April 28, 2000)

On appeal of a first-degree murder conviction, defendant contended that the trial court erred when it instructed, but refused to clarify, the jury on motive, and incorrectly refused to instruct the jury on the lesser-included charge of voluntary manslaughter based on the doctrine of imperfect self-defense.  Judgment was affirmed because the trial justice did not err in instructing the jurors that absence of evidence of motive would not create reasonable doubt, or in refusing to give defendant's instructions on motive and voluntary manslaughter because defendant failed to preserve the issues for appeal.  The court also held that the doctrine of imperfect self-defense was not recognized in Rhode Island.

State v. Marc Dumas, No. 97-625 (April 28, 2000)

Following the denial of the motion to suppress his videotaped confession, defendant was convicted of second degree murder.  On appeal, the court reversed in part, holding that the condition of the videotaped evidence precluded it from deciding the critical issue of exactly what defendant uttered at his confession, and remanded for expert analysis to determine what defendant said in the videotape.

Michael J. Berard v. Patricia A. Berard, No. 99-365 (April 28, 2000)

After a trial justice granted sole custody of the children to plaintiff ex-husband with reasonable visitation to defendant ex-wife, and granted plaintiff the marital home and refused to grant defendant alimony, defendant appealed.  The Supreme Court affirmed the distribution decision because the lower court enumerated each of the G.L. 1956 § 15-5-16.1 elements, and held that the denial of alimony was proper where defendant was capable of earning a living and plaintiff had most of the marital expenses.

State v. Gary Tassone, No. 97-610 (April 27, 2000)

The trial court convicted defendant of murder and sentenced him to life in prison.  The Supreme Court affirmed. The trial court did not abuse its discretion in admitting references to the gun found in defendant's bedroom for the limited purpose of showing that defendant was alert when he made his statement to police, and the trial court's jury instruction regarding the voluntariness of defendant's police statement was adequate because it properly and accurately instructed on the issue of custody. The trial court did not abuse its discretion in admitting photographs of the victim because the enlarged photographs enabled the medical examiner to testify more clearly about the victim's wounds and were not prejudicial.  Given the violent nature of the crime, the trial court did not abuse its discretion in sentencing defendant to life imprisonment without parole.

Rhode Island Temps, Inc. v. Department of Labor and Training, No. 99-73 (April 27, 2000)

After refusing to accept temporary positions offered by petitioner, a temporary employment agency, respondent employee applied for and received unemployment benefits from respondent Department of Labor and Training. The trial justice upheld the award, and on appeal, the Supreme Court reversed, quashing the judgment in respondents' favor. The court held that respondent employee, who refused to accept suitable work in order to look for a permanent full time job, did not do so with good cause under the Rhode Island Employment Security Act (Act), G.L. 1956 § 28-44-20, and therefore she was not entitled to unemployment benefits.  Because her decisions to refuse the job offers were completely voluntary, she also was not entitled to benefits under G.L. 1956 § 28-44-12 for refusing suitable work for a stated preference for the second shift or for a clerical job.

In re Christina V., No. 98-248 (April 21, 2000)

A Family Court justice held that petitioner Department of Children, Youth, and Families (DCYF) proved by clear and convincing evidence that respondents' minor daughter had been physically abused and neglected by respondent mother and physically and sexually abused by respondent father.  DCYF was given custody of the minor, and filed a termination of parental rights (TPR) petition under G.L. 1956 § 15-7-7(a)(3), which was granted. On appeal, the court affirmed, holding that the trial justice did not err or abuse its discretion, and that substantial evidence supported the decision.

State v. Juan Bautista Guzman, No. 98-96 (April 21, 2000)

After a fatal shooting, a patrol officer saw defendant, who matched the eyewitness’s description, 12 blocks from the shooting on foot.  When she stopped defendant, he was visibly nervous. After arrest, he was identified by eyewitness at scene and later confessed. The trial justice denied defendant's motion to suppress, and court affirmed, because the trial justice had determined probable cause existed for warrantless arrest from all the facts and circumstances.

John Perry v. Johnson & Wales University, No. 98-444 (April 17, 2000)

When plaintiff was terminated by defendant after a determination of permanent disability, he had 13 years of work credit, and had received workers' compensation benefits in two more years.  Defendant's disability plan, which was covered by the Employee Retirement Income Security Act, 29 U.S.C.S. § 1001 et seq. (ERISA), required 15 years' employment for disability retirement eligibility. The court looked first to ERISA and its regulations; finding that these regulations did not dictate the outcome, it then looked to terms of the plan itself, construed according to federal common law.  This plan stated clearly that periods of receipt of workers' compensation counted toward eligibility and that limits on number of workers' compensation hours applied separately to each year.  Therefore, plaintiff was eligible.

Hattie B. McKinnis et al v. Women and Infants Hospital of Rhode Island et al, No. 98-575 (April 14, 2000)

Plaintiffs took exception to trial court's jury instructions regarding negligence. The court concluded that the trial justice’s jury instruction failed to meet the required standard because it implied that good faith judgment or good faith error constituted a complete defense to plaintiffs' claim for medical malpractice.  A reasonable jury could have been misled by the trial court's failure to affirmatively define negligence in the original and clarifying instruction, which warranted a new trial. 

State v. Edward Franco, No. 97-362 (April 13, 2000) 

Defendant appealed his robbery conviction.  The court affirmed the conviction, holding that playing tapes of previous testimony did not improperly bar the grand jurors from conducting the required diligent inquiry.  None of the grand jurors was prevented from asking questions, and any impropriety was harmless.  Further, the grand jury could decide on the quality of the evidence; the secrecy requirement of R.I. Super. Ct. R. Crim. P. 6(e) did not impose an absolute requirement of live testimony. Finally, identification of defendant from a photo array properly was admitted, and officers did not attempt to influence the witness's identification.

Teresa A. Franco, et al v. Suzanne Wheelock, et al, No. 98-562 (April 12, 2000)

Appellant town imposed restrictions on parking and patron capacity of appellee restaurant. Appellee obtained a temporary restraining order enjoining appellant from enforcing the capacity restrictions.  Appellant received an advisory opinion from the zoning board of review that the capacity restrictions should apply.  The trial court denied appellant's summary judgment motion and granted in part appellee's cross-motion for summary judgment, declaring the board's decision a nullity. On appeal, the court affirmed because appellant could not circumvent the temporary restraining order by obtaining a ruling from the board, and G.L. 1956 § 45-24-57 did not authorize advisory opinions, nor could appellant assert that such an opinion was binding on the parties.

Frank Martellucci, IV v. Federal Deposit Insurance Corporation, No. 98-586 (April 11, 2000)

Plaintiff police officer appealed from the entry of summary judgment in favor of the defendant, landowner.  The court found that summary judgment was proper because the defendant's alleged negligence in failing to maintain the parking lot was not a subsequent and independent act of negligence that had nothing to do with the individual who created the need for plaintiff's employment.  Further, it was reasonable for a police officer responding to a nighttime alarm on private property to anticipate the possibility of falling over unseen impediments on unfamiliar terrain at the scene of the alarm.

State v. Bruce G. Rose, No. 98-278 (April 10, 2000)

A warrant authorized search of a suspect in a string of burglaries for range of missing items, and the Supreme Court held that in context of this string of incidents, the warrant stated items sought with sufficient particularity to be valid on its face. The court held that trial court had not abused discretion by encouraging juror note-taking and by not issuing specific cautionary instruction, especially because defendant failed to specifically object to the practice, declined to request a cautionary instruction, and failed to demonstrate any prejudice resulting from note-taking.  Finally, circumstantial evidence indicated defendant's guilt, so there was no error in denying motion for new trial.

Rhode Island Orthopedic Society v. Blue Cross & Blue Shield of Rhode Island, No. 98-467 (April 10, 2000)

On appeal, plaintiff health care provider argued that the trial justice erred by failing to find that the rates set by the department's fee schedule must be paid to physicians treating work-related injuries. The Supreme Court affirmed the decision of the lower court, and held that defendant was free to negotiate lower fees than the statutory rates enumerated in G.L. 1956 § 28-33-7.

Mario Fraioli v. Metropolitan Property and Casualty Insurance, No. 99-60 (April 6, 2000)

Plaintiff insured was injured in an automobile accident caused by the tort-feasor.  Pursuant to G.L. 1956 § 27-7-2.1(h), plaintiff requested permission from defendant insurer to settle his claim with the tort-feasor's insurance carrier.  Defendant denied permission, and plaintiff sought a declaratory judgment that defendant had wrongfully and in bad faith withheld consent.  Judgment of the trial court in favor of defendant was reversed, and the case remanded because defendant was not prejudiced by plaintiff's failure to repeat the request for permission after the offer had been made by the tort-feasor's insurance carrier. Furthermore, defendant had no reason to have denied permission upon the second request, and defendant had not acted in bad faith.

In the Matter of Jeremiah E. Holland, No. 2000-101 (April 4, 2000)

In connection with four residential real estate closings, the court held that respondent failed to act with reasonable diligence and promptness in representing his client, failed to keep his client reasonably informed about the status of the matter, and knowingly failed to respond to a lawful demand for information from a disciplinary authority in violation of R.I. Sup. Ct. Rules of Professional Conduct art. V, R. 1.3, 1.4(b), 8.1(b).  When appearing before the court, respondent stated that he had finally resolved the legal matters for his client.  The last-minute resolution, however, did not absolve him from disciplinary culpability, and the court suspended respondent from the practice of law for 60-days.

James Daniel et al v. George Cross, in his capacity as Finance Director for the Town of Cumberland, et al, No. 98-539 (April 4, 2000) corrected

Plaintiff was injured while working for defendant town, and claimed that the trial court erred by failing to add prejudgment interest to the negligence verdict. Defendants appealed from the decision to waive the liability limit set forth in the State Tort Claims Act, G.L. 1956 § 9-31-3.  Although defendant town failed to order a transcript or seek an extension to do so, defendant argued that this failure was caused by the neglect of the office administrator.  This did not constitute excusable neglect, however, and the motion justice abused her discretion in granting the motion to vacate the dismissal of the appeal.  Trial justice properly declined to add interest, as defendant town was performing a governmental function.

City of Providence et al v. The Employee Retirement Board of the City of Providence.
Charles R. Mansolillo et al v. The Employees Retirement Board of the City of Providence et al

Nos. 96-265 and 96-424 (April 3, 2000)

The Rhode Island Supreme Court affirmed the lower court’s decisions presented in the form of two consolidated appeals.  The court held that plaintiff city's home rule charter vested authority to regulate city employee pensions in defendant board.  With respect to the second action, the court accorded deference to the trial court's examination of the consent judgment because the record did not reveal that its findings were erroneous.

Providence Teachers Union Local 958, AFT/RIFT, AFL-CIO, et al v. Providence School Board et al, No. 99-51 (April 3, 2000)

Under a collective-bargaining agreement, plaintiff union and defendant school board agreed that defendant would pay for the teachers' contributions to the system.  Plaintiff filed a complaint, seeking a writ of mandamus which required defendants to establish and maintain a segregated bank account for the deposit of gross teacher-payroll funds.  The court affirmed trial justice’s denial of relief, holding that neither G.L. 1956 § 16-16-22.1(b), nor any other applicable law required municipalities to establish a separate account for the funds used to pay teachers' compensation.

Anthony J. Ruzzo, Sr. et al. v. LaRose Enterprises d/b/a Taylor Rental Center et al, No. 97-620 (March 30, 2000)

In a suit for personal injury and property damage, plaintiff appealed from the entry of summary judgment in favor of the defendant.  An agreement entered into by parties contained an exculpatory clause disclaiming all liability, and the court found that the motion justice committed error by enforcing the disclaimer provision against plaintiff's negligence claims.  However, although a disclaimer for personal injuries arising from the use of a consumer product introduced into the stream of commerce is unconscionable in Rhode Island, plaintiff did not meet his burden of proving by competent evidence that the president of defendant corporation participated in the inspection and maintenance of the power tool.  Summary judgment was thus appropriate.

Travelers Insurance Company v. Donald Hindle, Jr., d/b/a Recyclers of Rhode Island, No. 99-484 (March 29, 2000)

In a personal injury action, after a settlement was offered, plaintiff filed a motion to intervene and a miscellaneous petition to conduct asset discovery, which the trial justice granted.  Thereafter, the Supreme Court granted review, and quashed the order for discovery, finding that the trial justice abused his discretion by granting to plaintiff insurer seemingly unfettered authority to conduct asset discovery, pursuant to G.L. 1956 § 9-18-12.

Local 400, International Federation of Technical and Professional Engineers v. Rhode Island Labor Relations Board, No. 98-589 (March 24, 2000)

The union, the petitioner, filed several unit classification petitions with the board, respondent, seeking the accretion of several positions into an already-existing bargaining unit in the State's department of transportation. Upon review, the court held the trial court improperly concluded a formal hearing was necessary to consider all petitions for unit classification. Only in the event that respondent's preliminary decision was to prosecute the charge or grant the petition was a formal hearing required.

Gilbane Building Company v. Ocean State Building & Wrecking, Inc. et al, No. 99-21 (March 24, 2000)

Plaintiff hired defendant to demolish a building, remove debris, then backfill the basement using clean fill. After the job was completed, plaintiff discovered debris in the fill. Plaintiff brought an action for breach of contract and breach of warranty to recover damages. The trial court awarded plaintiff a money judgment. The court dismissed the appeal and affirmed the judgment. The court determined the trial justice did not misconceive material evidence in finding the evidence tended to show that by the time of the first compaction test, enough fill had been deposited to cover up the debris later found. Further, since defendant failed to raise the contractual provision as a defense until after judgment entered, the court considered the issue waived on appeal.

State v. Sythongsay Luanglath et al, No. 94-732 (March 24, 2000)

In their appeal, defendants argued that although the trial justice determined that the victims' private investigatory activities and discussions rendered their testimony unreliable, she failed to give effect to that finding when she denied the defendants' motion for a new trial on the grounds that the verdict was against the weight of the evidence. The court sustained defendants' appeal in part and remanded to the trial court for reconsideration of defendants' motion for new trial. The court found that the trial justice erred by not exercising her independent judgment in considering whether the verdict was against the fair preponderance of the evidence and failed to do substantial justice.

In Re Grand Jury Subpoena, No. 97-423 (March 22, 2000)

The grand jury issued a subpoena duces tecum ordering petitioner psychotherapist to produce his records concerning a certain client. Petitioner sought to quash the subpoena. After his motion to quash was denied, he petitioned for certiorari. The court declined to decide whether a common-law or statutory privilege existed for the confidential communications between a licensed psychotherapist and a client. Certiorari was denied.

David Heath v. George Vose et al, No. 98-583 (March 22, 2000) corrected

After denial of post-conviction relief, applicant appealed, asserting ineffective assistance of counsel during trial on charges of burglary in violation of G.L. 1956 § 11-8-1 The court agreed, vacated the conviction, and remanded for new trial. The record was devoid of evidence applicant entered the victim's dwelling with specific intent to commit a felony. Nothing was missing from the dwelling. Counsel neglected to move for acquittal in the hope of sending a lesser-included offense of breaking and entering; she presented no defense based upon applicant's intoxication. Counsel asked no questions of any of the state's witnesses relative to intoxication, and failed to move for acquittal on grounds that intoxication prevented applicant from forming specific intent necessary for a charge of burglary. Counsel's motion for a new trial was late under R.I. Super. Ct. R. Crim. P. 33. Counsel's conduct was so deficient as to require a new trial.

The Estate of Paul K. Sherman v. Antonio S. Almeida et al, No. 98-157 (March 22, 2000) corrected

Plaintiff guardian, on behalf of estate, appealed from dismissal of civil count against defendant former judge in his official capacity. Defendant had been convicted of criminal activity resulting in substantial losses to plaintiff. After judgment in underlying suit had been entered for plaintiff, defendant had presided over a post-trial motion to determine amounts of the proceeds and approve apportionment between plaintiff and counsel. For a bribe, defendant awarded counsel 45 percent of the recovery. Defendant eventually pleaded guilty to felony counts. Defendant, in his official capacity, was immune from suit. An exception to immunity would compromise judges' liberty to function independently and without fear. The defendant, however, could be sued in his personal capacity. 

State v. Richard Addison, No. 97-293 (March 21, 2000)

Defendant was convicted by a jury of first-degree robbery arising from an incident in which he assaulted the witness in her minivan, pushed her out, and drove away with the minivan. The witness identified defendant in a photo identification, but the photos were later lost. Defendant appealed and sought a new trial, challenging the in-court identification of him by the witness. The court affirmed, finding no indication that the photo identification had violated defendant's due process rights.

State v. Matthew Ferrara, No. 98-499 (March 17, 2000)

In 1990, defendant filed a motion to reduce sentence pursuant to R.I. Super. Ct. R. Crim. P. (Rule) 35. The trial court did not respond to the motion. In 1997, plaintiff filed an objection to defendant's motion. Plaintiff asserted that the seven-year delay in pressing the motion was unreasonable. The trial court sustained plaintiff's objection finding that the seven-year delay was unreasonable and declining to address the substantive issues of the motion. The court sustained defendant's appeal and vacated the order of the trial court. The court noted that defendant timely filed his motion to reduce sentence and the trial court failed to act on defendant's motion. Thus, the reviewing court characterized the trial court's ruling that its own inaction barred Rule 35 relief, to be an abuse of discretion. Consequently, the case warranted remand for a determination on the merits.

State v. Bryant Brown, No. 99-34 (March 17, 2000)

The trial court convicted defendant for two counts of burglarizing the same house on two separate occasions. Defendant's sole issue on appeal was the denial of his motion to suppress identifications that he maintained were unduly suggestive. After hearing testimony and employing a totality of the circumstances test, the trial justice found the testimony of the two witnesses to have been both credible and reliable. The trial justice determined that during each crime, both witnesses had ample opportunity to view defendant at close range under sufficient lighting conditions. The record indicated that both witnesses had given descriptions of the intruder to the police immediately after each incident, and neither wavered in their certainty that defendant was the intruder. Therefore, the court was persuaded that the trial justice did not err in denying defendant's motion to suppress the identifications made of him by the witnesses.

D. Corso Excavating, Inc. v. Edna Poulin, as Director of the Second Injury Indemnity Fund, et al, No. 98-301 (March 17, 2000)

Employee suffered an injury while working for petitioner employer. Petitioner insurer, four years later, filed a claim with respondent agency under G.L. 1956 § 28-37-4 (1956) (repealed 1998), which established the second injury fund. Respondent denied the claim and, while on appeal, the statute was repealed. The court found the repeal barred petitioners from recovering on their claims for reimbursement. Respondent had never accepted liability for the claims where there were no preexisting agreements between petitioners and respondent. Although petitioners expected reimbursement from the fund, their claims were mere "floating expectancies" that could be eliminated at anytime. The statute did not create rights where there was no contractual or bargained-for-exchange language.

John P. Graff v. Frank T. Motta et al, No. 98-504 (March 17, 2000)

Plaintiff sued a police officer and his employer, by and through its finance director, under a theory of respondeat superior after a car collision involving plaintiff and the officer. On appeal, the court affirmed. The trial justice did not err in denying plaintiff's motion in limine, whereby he sought to: (a) collaterally estop testimony on the issue of his eluding a police officer; (b) admit evidence of the city's post-accident actions; (c) admit evidence of a prior judgment in his favor; and (d) admit evidence of other accidents in involving the officer. The sole issue was whether the officer was negligent The trial justice did not overlook or misconceive any material or relevant evidence.

Mary Ann Votolato, individually and as the Administratrix of the Estate of Cherie M. Tavares v. William Merandi et al, No. 98-197 (March 17, 2000)

Plaintiff, individually and as administratrix of the estate of her daughter, brought an action against defendants for negligence and resulting damages arising from an automobile collision in which her daughter died. Evidence of a settlement between plaintiff and an insurance carrier for one of the defendants was admitted at trial. The jury rendered a verdict in defendants' favor. The trial court granted plaintiff's motion for a new trial, concluding that the curative instruction to the jury had been inadequate to eradicate the prejudice. The court affirmed, applying a de novo analysis to the trial record to determine if an error of law existed in the grant of the R.I. Super. Ct. R. Civ. P. 59 motion for new trial. The settlement evidence was not admissible for setoff or impeachment purposes under R.I. R. Evid. 408. The curative instruction was unable to remove the prejudice resulting to the plaintiff.

State of Rhode Island v. Rhode Island Alliance of Social Services Employees, Local 580, SEIU, No. 98-244 (March 17, 2000) corrected

State auditor's report concluded that agency's method of paying overtime violated applicable state law barring use of paid-sick-leave hours in computing state employees' entitlement to overtime compensation. Appellant union grieved agency's decision to follow state law in this regard. Notwithstanding appellee state's contention that this issue was not substantively arbitrable, arbitrator upheld appellant's grievance. Trial court vacated arbitrator's award. The court affirmed, holding that trial court ruled correctly that arbitrator exceeded his authority by deciding an issue that was not arbitrable ab initio. 

State v. Gregory Acciardo, No. 98-429 (March 16, 2000)

Defendant attorney was convicted of harboring two of his clients. The clients sought advice from the defendant because they thought that a former associate was going to implicate them in a number of criminal offenses. Defendant set his two clients up in an apartment, after police falsely told him that there were no outstanding felony warrants for the two. The court reversed, finding that the State's evidence failed to establish the essential scienter element for the crime of harboring. Therefore, the trial court erred in denying defendant's motion for judgment of acquittal.

Fleet Construction Co., Inc. v. Aetna Life & Casualty Co., et al, No. 98-458 (March 14, 2000)

Plaintiff argued that the trial court erred in granting the various summary judgment motions filed by the defendants. Plaintiff asserted that the first motion justice erroneously granted summary judgment on counts one through four of its complaint. Plaintiff failed to show that overcharges on the bonds were illegal, or that defendants breached some contractual provision or legal duty that they owed when they charged Class B premium rates for the bonds instead of Class A premium rates. Plaintiff provided no evidence that defendants were obligated to accord its projects the Class A rating. The prior denial of defendant's summary judgment motion did not preclude a second motion justice from later granting the motion after intervening events had altered the legal landscape of the case.

State v. John Feole, No. 98-419, (March 14, 2000)

Defendant was convicted of extortion and usury. The victim testified that even though he owed defendant only $ 4,100, he had paid him nearly $ 70,000 because defendant threatened to inflict bodily harm upon him and his family. Defendant claimed that the trial justice erred when he limited his cross-examination of plaintiff state's witnesses. Trial justice, however, did not abuse his discretion when he limited the defense's attempted inquiry on cross-examination to matters broached on direct examination. Defendant also claimed that hearsay statements should not have been admitted. Testimony was not offered to prove the truth of the matter asserted but to show that the victim understood that he was being extorted. The trial justice did not err in allowing this evidence. 

State v. Rafael Medina, No. 97-408 (March 10, 2000)

By expressly relying upon the testimony of certain named witnesses for the state, the trial justice communicated his acceptance of their testimony as the most credible on the issue of whether defendant stabbed the victim in the back. Defendant could not argue on appeal for the first time that the trial justice committed reversible error by sustaining the state's objection to the one question he posed to the witness concerning his alleged consumption of alcoholic beverages earlier on the day in question. 

State v. Christopher G. Tucker, No. 99-156 (March 10, 2000)

The issue on appeal was whether the superior court exceeded its authority under G.L 1956 § 12-19-9. After determining the defendant to be a probation violator, it removed the suspension from a portion of his original sentence and committed him to prison to serve only that portion, while continuing to suspend the rest of his previously imposed sentence. The court found that the superior did not exceed its authority and thus affirmed the denial of defendant's R.I. R. Crim. P. 35 motion to modify his sentence.

James Toole v. State of Rhode Island, No. 99-40 (March 3, 2000)

After his conviction on five counts of sexual assault, the trial court sentenced petitioner to five concurrent life sentences. The trial court further denied post-conviction relief. On appeal, petitioner contended that the public defender's office had a conflict of interest and provided ineffective representation. The trial justice, however, concluded that, by the time of trial, any alleged conflict no longer existed. The court affirmed, for the same reason. Furthermore, the failure to call the victim's pediatrician to testify does not constitute ineffective assistance. The pediatrician would not have been able to testify that, in his expert opinion, no sexual abuse had occurred, and there was other substantial evidence of petitioner's guilt.

James Beattie v. Fleet National Bank et al, No. 98-338 (March 3, 2000)

Plaintiff appealed from finding that defendant's opinion, expressed in a letter about a real estate appraisal from plaintiff, was not defamatory. The opinion was based upon disclosed, non-defamatory facts in an accompanying memorandum detailing the appraisal's perceived deficiencies. Thus, the letter was not actionable. Defendant's opinion that plaintiff's appraisal presented a value so misleading as to be considered fraudulent was based on facts fully disclosed and explained. The letter did not imply the existence of undisclosed facts that were provable as false, any false assertion of fact based upon incorrect or incomplete disclosed facts, or an erroneous assessment of disclosed facts.

Anthony Palazzolo v. State of Rhode Island, by and through its General Treasurer, Paul J. Tavares, et al, No. 98-333 (February 25, 2000)

Plaintiff appealed the lower court's judgment holding that defendant's denial of plaintiff's application to fill 18 acres of coastal wetlands did not constitute a taking of his property which would require compensation. The Supreme Court affirmed the decision, holding that plaintiff's claim for compensation was not ripe for review.

Christopher Lang v. The Red Parrot, Inc., et al, No. 98-480 (February 23, 2000) corrected

Plaintiff, a bartender, was injured on his first day of employment with defendant when he operated a dumbwaiter without instructions. The trial court determined that plaintiff assumed the risk of his injuries by sticking his head into the dumbwaiter and granted the defendant's motion for summary judgment. The reviewing court, however,  concluded that while plaintiff may have been negligent, he did not knowingly assume the risk of his injury. The determination of whether defendant's negligence proximately caused plaintiff's injury created a material issue of fact that precluded summary judgment.

Town of West Warwick v. Local 1104, International Association of Firefighters, AFL-CIO, CLC et al, No. 98-453 (February 23, 2000)

The town of Warwick, the defendant, petitioned for declaratory and injunctive relief, alleging that the dismissal of two fire department employees who were members of plaintiff union, following their felony convictions for embezzlement, was authorized and mandated by the town's charter. The court rejected the plaintiff's assertion that the dismissals were arbitrable because the charges against the two firefighters predated amendments to the charter that mandated dismissal of town employees who pled nolo contendere to a felony charge and that the application violated the ex post facto clause of U.S. Const. art. I, § 10. The court held that the valid employment requirement prescribed by law could not be negotiated and was not a proper subject for arbitration.

In re Island Hi-Speed Ferry, LLC, Nos. 99-155, 99-151 and 99-150 (February 21, 2000)

Plaintiff corporation filed a rate application with defendant public utilities commission. Defendant allowed intervenors, competitor, and city, to enter the action. Defendant denied plaintiff's request to waive rate hearing and investigation requirements and denied an exemption from rate filing requirements. Defendant approved plaintiff's filed rates and schedules for the year. Plaintiff and intervenors sought review of defendant's order. The court affirmed and held that defendant had statutory authority to investigate, review, and approve plaintiff's rates at any time. 

State v. George Sorel, No. 97-570 (February 21, 2000)

Defendant was convicted of child molestation. On appeal, defendant argued that the trial justice erred in denying defendant's motions to exclude evidence that he showed the victim a pornographic magazine and testimony that he exposed himself to the victim. The court affirmed the judgment. The court discerned no error in admission of evidence about the magazine, as the evidence was relevant and corroborated the victim's claim that defendant acted in a sexual way. 

State v. Willie C. Turner, No. 99-196 (February 21, 2000)

On-site manager’s private apartment within a bed and breakfast was properly considered a dwelling house. Thus, the pushing open of an unlocked door could constitute breaking. The Supreme Court affirmed. The court would not disturb the denial of the motion for new trial unless the justice overlooked or misconceived relevant and material evidence or was otherwise clearly wrong.

Salvatore Guido v. State of Rhode Island, No. 99-50 (February 18, 2000)

Defendant contended that his application for post-conviction relief should have been granted, because his hospital medical records, containing evidence of his blood-alcohol level on the night of the accident, were unlawfully obtained through a police officer acting as an agent of the grand jury and used by the prosecution. The court, however, found that a previous case did not announce a new rule of criminal law to be applied retroactively to defendant. 

El Marocco Club, Inc. et al v. Kenneth Richardson, in his capacity as Treasurer of the Town of Johnston et al, No. 98-213 (February 18, 2000)

Plaintiff nightclub appealed the dismissal of its action to invalidate defendant town's ordinance prohibiting nude-barroom dancing. The court affirmed finding that the ordinance constituted a valid exercise of the town's power to impose reasonable conditions upon the granting of local liquor licenses and did not unconstitutionally abridge plaintiff's free-speech rights. 

General Motors Acceptance Corporation v. Donna M. Johnson, No. 98-413 (February 16, 2000)

When defendant did not purchase collision insurance, pursuant to the contract, plaintiff obtained coverage and charged defendant for it. This coverage, however, had lapsed by the time the car was damaged in an accident and defendant ceased to make payments. After the repossession and sale of the car at private auction, plaintiff brought an action for the remaining deficiency. The court held that entry of summary judgment for this deficiency was improper because plaintiff had never made a prima facie case that there were no issues of genuine material fact relating to these issues, so defendant had nothing to rebut, and these questions could be decided at trial.

State v. Joseph Mollicone, Jr., No. 98-569 (February 16, 2000)

Defendant was convicted of embezzlement, false bank entries, and conspiracy and sentenced to 20 years for the embezzlement counts, 20 years for the false bank entry counts and 10 years for the conspiracy counts. Pursuant to R.I. Super. Ct. R. Crim. P. 35, defendant moved to reduce his sentence. The court affirmed the denial of the motion to reduce the sentence, finding that the sentencing factors had been correctly applied and that the sentence was within the trial court's discretion.

Joyce Hanley et al v. Donald Alaire, No. 98-330 (February 16, 2000)

The executrix (" appellant" ) sold real property that had been devised to her son (" appellee" ), without notifying either the court or appellee. Because evidence indicated that the property was worth more than it sale price, the appellate court concluded that the trial court did not err in determining that appellant breached her fiduciary responsibility. Further, the trial court did not err in determining that appellant's testimony that she had to sell the property to meet expenses was impeached. The trial justice properly interpreted G.L. 1956 § 33-12-6 to require court approval and written approval by appellee before selling real property that was specifically devised.

Imperial Casualty and Indemnity Company v. Amitie Bellini and Norbell Realty Corporation v. Michael DeSantis, No. 98-546 (February 16, 2000)

Plaintiff was injured on premises that individual insured had owned, but had transferred title to a now defunct corporation. Defendant insurer insured the premises, but only in the name of the individual. Insurer, apparently reserving its rights, defended the corporation. After plaintiff obtained judgment, it intervened in defendant's declaratory judgment action claiming liability under G.L. 1956 § 27-7-2, to reform the policy to name the corporation an insured, for judgment that defendant was estopped from denying coverage, and for bad faith. Defendant moved to dismiss on the basis that plaintiff, who lacked privity, could not enforce third-party contractual claims, and that its coverage ran only to its named insured and not the corporation. The court affirmed denial. The court reversed a denial of defendant's motion to sever the bad faith claim. Plaintiff was not entitled to bring it and obtain full discovery.

Harold Mark, Individually, and as Co-Executor of the Estate of Haskel Mark et al, No. 98-557 (February 15, 2000)

After the denial of defendant's motion to strike plaintiff's punitive damages claim a writ of certiorari was granted. The court held a plaintiff who was not seeking to delve into defendant's financial net worth during the pretrial discovery stage did not have to bear the burden at a Palmisano hearing of meeting the rigorous standard necessary for imposing punitive damages, simply because a claim for punitive damages was included in the complaint.  

Pilot's Point Marina, Inc. v. Cazzani Power Boat Manufacturing, Inc., No. 98-214 (February 15, 2000)

Plaintiff filed an action for breach of contract and Defendant counterclaimed for breach of warranties. Defendant's certificate of incorporation was revoked during the trial. The trial court granted plaintiff's motion to amend its response to defendant's counterclaim, dismissed defendant's counterclaim for lack of capacity to sue, denied defendant's motion for continuance, and entered judgment for plaintiff on its breach of contract claim. The court held that: (1) Defendant was not prejudiced by the counterclaim's dismissal because it could proceed with its claim after regaining its corporate capacity; (2) There was no error in finding the molds were produced in a workmanlike manner; and (3) The evidence was sufficient to include storage charges in the damages award.

James Canavan v. Lovett, Schefrin and Harnett et al, No. 98-291 (February 14, 2000)

Plaintiff brought an action for malpractice against defendant law firm and joined as a party defendant in his lawsuit the insurance company which was defendant’s malpractice insurer. The trial court dismissed plaintiff's complaint against defendant and plaintiff appealed. The court found that plaintiff had no standing to bring a direct action against defendant because he had not obtained a judgment against defendant law firm and because defendant had no duty to act in a fiduciary capacity toward plaintiff.  

Star Enterprises v. Dennis DelBarone, No. 98-383 (February 14, 2000)

The trial judge found that appellee had a seven percent functional impairment after a work related injury. Appellant requested the establishment of an earnings capacity under G.L. 1956 § 28-33-18(c) which the trial court declined. On appeal, the court affirmed holding that the trial court could use a functional impairment rating or an employee's actual disability, or both, in establishing an earnings capacity.  

Mortgage Guarantee & Title Co. v. Fernando S. Cunha, No. 98-598 (February 11, 2000)

Defendant submitted an application to plaintiff for a title insurance policy that failed to show defects in the title to the property. Plaintiff sued defendant alleging negligence and breach of contract. Plaintiff also sought attorneys' fees it paid in connection with the defense of the insured’s claim. The Court granted plaintiff's writ of certiorari. The Court determined that the inclusion of attorneys' fees in the claim for damages did not in itself imply a waiver of the attorney-client privilege.  

In re: Petition for Review Pursuant to §39-1-30 of Ordinance Adopted by the City of Providence, No. 99-405 (February 11, 2000)

The municipality petitioned for certiorari before the State Supreme Court after a public utilities commission nullified a city ordinance regulating the excavation and restoration of city streets. Following review, the court granted certiorari and quashed the commission's decision. While the commission was granted a right to review any such ordinance under G.L. 1956 § 39-1-30, the right of review did not permit the commission to nullify or modify an ordinance regulating the maintenance and repair of city streets unless it was unduly burdensome and adversely affected the ability of the utility company to service its customers. The matter was remanded for further proceedings.

Ronald Ouellette et al v. Bruce L. Filippone, No. 98-403 (February 11, 2000)

Plaintiffs appealed from a judgment of the Superior Court, denying their claim to recover a real estate purchase deposit from defendant, and awarding damages to defendant on his counterclaim alleging a breach of the real estate purchase contract.   The Court found that the trial justice was not clearly wrong in finding that the plaintiffs had failed to exercise due diligence in attempting to comply with the terms of purchase and sale agreement and that they had breached the express provisions of that agreement.

Michael M. Paul et al v. City of Woonsocket et al, No. 97-630 (February 11, 2000)

Plaintiffs, a conditionally certified class of landowners who had been required to pay a water connection impact fee, sued defendants, city and city officials, seeking recovery of those fees pursuant to 42 U.S.C.S. § 1983. The trial court entered summary judgment in favor of defendants. On appeal plaintiffs asserted that the voluntary payment doctrine was not applicable to their claims because the payments were made under duress and that G.L. 1956 § 9-1-13(a) (1956) was the applicable statute of limitations. The court held that if the tapping fee was a tax, as alleged by plaintiffs, their claims were time-barred pursuant to G.L. 1956 § 44-5-26 (1956).  

State v. Michael R. Hawkins, No. 97-609 (February 11, 2000)

Defendant was convicted of molesting his two former stepsons. On appeal, he contended the trial justice erred in precluding him from recalling a witness to provide an evidentiary basis for the admission of a photograph taken of him.  The court affirmed the conviction, finding that at no point during the entire trial did the state ever challenge the existence of the scar. Therefore, the court held that even if it were to assume error on the part of the trial justice in declining to allow the recall of the witness, it was harmless error beyond a reasonable doubt.

Daniel A. Ferguson et al v. Marshall Contractors, Inc. d.b.a. Algonquin Builders, and Bennington Iron Works v. Ajax Construction Company, No. 98-440 (February 10, 2000)

Plaintiff was injured while working on a project. He collected workers' compensation benefits and sued cross-claimant contractor and co-defendant contractor for their alleged negligence in connection with his injury.  On appeal the court found a motion in limine was improperly granted because it sought to exclude all evidence of duty owed by codefendant and was improperly used as a dispositive motion. Additionally, the trial justice should have denied the motion in limine on the ground that it was barred by the law-of-the-case doctrine. Further, cross-claimant was not barred by either res adjudicate or collateral estoppel from seeking to present evidence in support of its claim.

Town of Lincoln et al v. City of Pawtucket et al, No. 98-325 (February 7, 2000)

Plaintiffs challenged the denial of their claims for relief from charges assessed for a water remediation project. Plaintiffs argued that the charges against them were unfair.  Plaintiffs' due process and equal protection claims failed because the legislation created a reasonable classification which bore a reasonable and rational relationship to a legitimate state interest in the public health and welfare.  

State v. Joseph Brouillard, No. 96-344 (February 4, 2000)

On appeal, defendant contended that his confession to police was not voluntary. Defendant claimed that he was undergoing alcohol withdrawal while meeting with police.   The court surmised that defendant's claim that he was incapacitated by alcohol withdrawal was contradicted by the undisputed fact that he was coherent and responsive during police interview. Finally, defendant was informed of and waived his Miranda rights a second time just before he gave his confession to police. Second issue that defendant raised on appeal was his right to be present at pretrial conference in judge's chambers. At that conference, trial court granted defendant's motion to sever his trial from his co-defendant's trial. The court held that defendant had no right to be present because conference was not a stage of trial that affected defendant's guilt or innocence.

State v. Adrian Hazard, No. 97-380 (February 4, 2000)

Defendant appealed a conviction of assault with intent to murder.  The court affirmed the conviction, holding that although the jury could not render a complete verdict on every element of the charged offense, the jury made a plethora of findings that were the "functional equivalent" of the firearm element.  

St. Jean Place Condominium Association v. Raymond DeLeo et al, No. 98-356 (February 2, 2000)

Plaintiff condominium association sued defendants seeking to quiet title as to a unit developed by defendant. The court affirmed partial summary judgment for plaintiff, rejecting defendants' claims that they acquired title as tenants in common either by deed or by adverse possession. Specifically, the court found that the deed could not convey ownership where, at the time of its execution, the purported transferor possessed no interest to convey. Title was not acquired through adverse possession where the transfer was in violation of the Rhode Island Condominium Act, G.L. 1956 § 34-36.1-2.07(e), and one of the defendants could not possess adversely due to his ownership interest in the common elements of the condominium units.

State ex. rel. Town of South Kingston v. Scott D. Reilly, No. 99-29 (February 2, 2000)

Defendant was arrested for suspicion of driving under the influence of alcohol and transported to the police station where he consented to a breath test. Both tests showed that defendant was intoxicated. Defendant's motion to suppress the tests was granted based on the argument that the police failed to comply with test time requirements.  

David B. Danzer, M.D. v. Rhode Island Board of Medical Licensure and Discipline, No. 98-495 (February 2, 2000)

Plaintiff sued defendant seeking to enjoin it from conducting an administrative hearing, and to dismiss charges of unprofessional conduct levied against him in relation to the death of an infant while in his care. Plaintiff argued on appeal that the first motion justice's denial of defendant's motion to dismiss the case constituted the law of the case, thereby mandating that the second motion justice grant plaintiff's motion for summary judgment. The Supreme Court held that the law of the case doctrine does not bar a second motion justice from granting summary judgment based on an expanded record after the first motion justice previously denied that party's motion to dismiss. In addition, the court held that defendant's original finding was not a final adjudication to which res judicata applied, and defendant properly reopened its investigation of plaintiff's conduct.

John Casey v. Treasure Island at the Mirage, No. 98-346 (February 2, 2000)

Plaintiff sued defendant for negligence. The trial court dismissed plaintiff's suit for lack of jurisdiction. The Supreme Court concurred with the trial court's determination that   there was not sufficient minimum contacts with Rhode Island or purposeful availment by the defendant.  Therefore, the court concluded that the trial court did not err in granting defendant's motion to dismiss for lack of in personam jurisdiction.

In the Matter of Robert F. DiPippo, No. 2000-12 (February 2, 2000)

Respondent, a member of the bar for 36 years, was suspended from the practice of law for three years for failing to segregate client funds. Respondent had represented his niece after she was involved in an automobile accident. The commingled funds involved amounts that had been paid in settlement of the case. The Supreme Court affirmed the disciplinary board's decision suspending respondent and held that his conduct violated the rules of professional conduct for the rules require an attorney to segregate the funds of a client or third party in a separate client account. Respondent not only failed to segregate the funds in a client account, but failed to promptly pay the funds as required. Moreover, respondent failed to present any mitigating circumstances that would have warranted the imposition of a sanction less than that recommended by the disciplinary board.

Alfredo Lombardo v. Atkinson-Kiewit, No. 98-103 (February 1, 2000)

Petitioner sought total-disability benefits under G.L. 1956 § 28-22-17(b)(2) and stipulated that his entitlement to benefits pursuant to the "odd-lot doctrine" was the only issue for the workers' compensation court. The trial judge granted the benefits but the appellate panel reversed. On appeal, the court affirmed finding that, although the statute which the division relied upon was not in effect at the time of petitioner's injury, petitioner had waived the issue by not objecting below, thus the burden of proof fell on him rather than on the employer to prove that there was no alternative employment available.  

State v. Juan Salvatore Pena Lora, No. 98-578 (February 1, 2000)

Defendant was convicted of possession of cocaine. In sustaining the conviction on remand, the trial court determined that defendant possessed "standing" to challenge the search and found that the police conducted a lawful search of defendant's automobile. On appeal, defendant argued the trial court erred by: (1) determining the search was lawful; (2) denying defendant's motion for judgment of acquittal; and (3) giving a jury instruction about permissibility of drawing inference of guilt based upon defendant's various use of names. The court affirmed the judgment on different grounds.  

State v. Michael Morris, No. 96-513 (January 31, 2000) 

Defendant was convicted of conspiracy to commit burglary, assault with a dangerous weapon and unlawful concealment of a knife. On appeal, defendant asserted error in: (1) denial of request for funds to retain defense eyewitness expert; (2) improper presentation of testimony from the victim; and (3) adjudication as a habitual criminal. The court affirmed judgments of conviction and the habitual criminal adjudication.  Finally, the court found that defendant's contentions relating to his habitual criminal sentence were devoid of merit because G.L. 1956 § 12-19-21 (1956) did not create a separate substantive offense requiring a separate trial.

State v. William J. Carter, No. 97-257 (January 28, 2000)

Defendant convicted of first-degree murder and breaking and entering a shop with intent to commit larceny. On appeal he claimed the trial justice committed multiple errors warranting a new trial. Court affirmed conviction.

Estrela F. Ponte v. Malina Company, d.b.a. Armour Handcrafts, No. 98-337 (January 26, 2000)

Plaintiff appealed the appellate division's decision reversing a trial judge's decision allowing her to amend her 1986 Memorandum of Agreement (MOA) to add another injured body part to her workers' compensation claim, pursuant to G.L. 1956 § 28-35-5. The court held that once an amendment to the MOA was granted for a reason or reasons set forth in § 28-35-5, an employee may be awarded compensation benefits retroactively based upon a later-included injury. The court also concluded that no applicable filing period had expired to bar plaintiff's 1993 petition to amend the 1986 MOA.

State v. Jose Garcia, No. 96-169 (January 26, 2000)

Defendant was convicted of first degree murder and several consecutive life sentences.  On appeal the Court found that: (1) Witnesses' statements were not coerced; (2) Unavailable witness' prior recorded statement at bail hearing was properly admitted under R.I. R. Evid. 804(b)(1); (3) Defendant's statement about setting prior fire was properly admitted under R.I.R. Evid. 404(b) to show motive, intent and course of conduct; (5) prosecutorial misconduct in inviting misuse of evidence in closing was harmless error;  (6) Admission of flight and prior misdemeanor conviction evidence was proper; and (7) Harsh sentence was deserved based on defendant's pitiless disposition.

State v. Derek Brown, No. 97-52 (January 21, 2000)

Defendant was convicted of first-degree murder. Defendant contended his constitutional   rights were violated by the admission into evidence of a witness's former testimony given at Defendant's bail hearing. The court found that the witness’s testimony was admissible since the declarant was unavailable. Defendant also objected to the court's refusal to instruct on the lesser-included offense of second-degree murder. Nevertheless, because defendant failed to preserve the issue for appeal, the objection was rejected.

Diana Goodson v. George Osborn Goodson, Jr., No. 98-503 (January 21, 2000)   

Defendant was obligated by the parties' divorce decree to pay 50 percent of his gross monthly military retirement pension to plaintiff. Defendant made the payments directly until government allotments began, at which time plaintiff received less because federal taxes were deducted before payment. The trial court found defendant in contempt, and ordered him to reimburse plaintiff. Defendant appealed, arguing the trial judge erred in applying a different definition of "gross income" than provided for in the Uniformed Services Former Spouses' Protection Act (USFSPA). The court found that the version of the USFSPA in effect at the time the parties' decree was entered required payments from the total monthly retired or retainer pay to which the service member was entitled, less amounts withheld for federal, state, or local income tax. Thus, although plaintiff would be double-taxed, the USFSPA pre-empted state law and defendant was not liable.

Alan F. Burns v. Connecticut Mutual Life Insurance Company et al, No. 98-412 (January 13, 2000)

Plaintiff brought a breach of contract action, alleging that defendant insurance company wrongfully terminated his disability benefits and alleging that defendant agent was negligent in failing to inform him he was not insurable. Defendant insurance company filed a counterclaim, alleging that plaintiff fraudulently misrepresented material facts on his application. On appeal, plaintiff argued that defendant agent should not have been dismissed, and that granting defendant insurance company's motion to dismiss was error. The court found that defendant agent was properly dismissed since the action was not timely filed in light of G.L. 1956 § 9-1-14.1.  Further, the court found that it was not an abuse of discretion to grant defendant insurance company's motion to dismiss.  

State v. Heldeberto Lemos, No. 98-438 (January 11, 2000)  corrected

Defendant was indicted for sexually assaulting a 16-year-old girl, in violation of G.L. 1956 §§ 11-37-2, 11-37-3.  On appeal, defendant questioned the sufficiency of the evidence by challenging the denial of his motions for judgment of acquittal and for a new trial. He also claimed that the trial justice committed certain errors in his evidentiary rulings that warranted a new trial. The Court vacated and remanded defendant's conviction, holding that the trial court committed error when it excluded certain hospital records on hearsay grounds and allowed the victim to testify with regard to out-of-court hearsay statements.

State v. Edward Young, Sr., No. 97-573 (January 11, 2000)

Defendant appealed from a conviction of child molestation and sexual assault. The reviewing court affirmed, finding that the jury remained impartial after the exclusion of a prejudiced witness and that evidence of a prior arrest was admissible. Therefore, the trial justice was correct in denying defendant's motion for a mistrial 

Lionel A. Poisson v. Louise G. (Poisson) Bergeron, No. 98-425 (January 13, 2000)

Appellant filed a motion with the family court to adjudge appellee in contempt for failure to provide child support and to direct appellee to pay appellant's counsel fees. The family court denied the appellant's motion. Appellant filed an appeal to the Court. The Court dismissed the appeal as the appellant could only seek review of matters relating to contempt in the family court by a petition for certiorari pursuant to G.L. 1956 § 14-1-52(b) (1956).

State v. David Heath, No. 99-130 (January 7, 2000)

Defendant appealed trial justice’s denial of his request to correct sentence.  The defendant was sentenced to four and half years.  The trial judge ordered defendant to serve six months and have four years probation.  Supreme Court held that trial justice did not act improperly; accordingly, the judgment was affirmed.

In re Matthew A., No. 98-486 (January 10, 2000)

State appealed judgment of family court that vacated an admission of respondent that supported an adjudication of delinquency.  State argued that respondent had to register as sex offender because of admission.  Supreme Court held, however, that it did not constitute error to vacate adjudication of delinquency because family court justice properly exercised discretion regarding a change in admission forms and the effect it had on respondent.  State’s petition quashed.

Leonard J. Morry, Jr. v. City of Warwick, No. 98-387 (January 10, 2000)

Plaintiff, a retired police officer, filed complaint seeking additional benefits retroactive to his retirement.  Supreme Court held that plaintiff not entitled to additional benefits under G.L. (1956) § 45-19-19 and that general legislation did not supercede specific legislation allowing city to establish its own pension fund.  Judgment affirmed.

Supreme Bakery, Inc. v. Richard J. Bagley et al, No. 98-355 (January 10, 2000)

The plaintiff appealed the trial justice's ruling in favor of defendants, finding that G.L. 1956 § 6-19-9(a) barred plaintiff's claim for fraudulent conveyance and that plaintiff did not fall into the discovery exception to that statute. The Court determined that although the statute of limitations in fraudulent transfer cases was four years according to § 6-16-9(a), plaintiff did not file its complaint until more than five years after the transfer. The Court further concluded that the discovery exception in § 6-16-9(a) did not apply because plaintiff could have readily discovered the transfer. The appeal was denied and dismissed.

State v. Louis Manocchio, 98-574 (January 10, 2000)

Respondent filed a motion to expunge various entries pertaining to him in the Bureau of Criminal Identification (BCI) records. In granting the petition for certiorari by petitioner, our Supreme Court held that the Superior Court lacked the inherent power to expunge these records.  

Frank L. Lewis et al v. Nationwide Mutual Insurance Company, 98-352 (January 10, 2000)

Plaintiff was involved in two separate automobile accidents. Subsequently, the defendant made payment on the first accident claim.  The plaintiff brought suit alleging breach of contract, bad faith, and negligence. The court affirmed summary judgment in favor of defendant based on the grounds that the defendant demonstrated a reasonable basis for denying benefits.  

State v. Wesley Spratt, No. 97-547 (December 21, 1999)

Defendant appealed conviction on first-degree murder, carrying a pistol without a permit, and commission of crime of violence while armed.  Defendant argued that trial justice improperly admitted evidence of photo of victim in tuxedo and improperly allowed prosecution witness to identify him at trial.  Supreme Court held that trial justice properly exercised discretion regarding photo and that trial justice did not err in determining that state had proffered sufficient evidence to support finding that witness had actual knowledge of defendant.  Conviction affirmed.

State v. Charles Austin, No. 97-219 (December 20, 1999)

Defendant appealed conviction for assault with a dangerous weapon alleging that a myriad of errors were committed during trial.  Defendant argued that trial justice erred in admitting and refusing to admit certain evidence related to phone calls and his involvement in the occult.  The Supreme Court found that the trial justice did not err but rather she properly exercised her discretion.  The Court held that a witness’s use of the word " threatening" was not inflammatory.  The Court held that the defendant’s claim that the trial justice improperly instructed jury was not properly preserved for review.  Court held that defendant failed to prove that remarks made by trial justice were prejudicial.  Finally, Court held that trial justice not clearly wrong in denying defendant’s right to speedy trial arguments because he was responsible for most of the delay.  Conviction affirmed.

Luis M. Estrada, Jr. v. Dr. Kenneth R. Walker et al, No. 98-220 (December 20, 1999)

Defendant appealed denial of his application for post-conviction relief.  Specifically, defendant appealed the parole board’s denial of parole because, as he argues, its reasons for denying parole were inadequate, constituted an abuse of discretion, and violated his due process.  The Supreme Court held that due process only afforded defendant right to know in what respects his application fell short and that there is no constitutional right to parole.  Here, there was no evidence that the parole board deviated from its established guidelines in making its determination.  Judgment affirmed.  

Robert Skaling et al v. Aetna Insurance Co., et al, No. 98-282 (December 16, 1999)

Parties appealed verdict awarding plaintiff damages under defendant insurer's policy.  Supreme Court held that trial justice did not err in denying defendant’s motion for judgment as a matter of law because ample evidence existed to support jury’s conclusions.  Nor did the trial justice abuse discretion by admitting evidence of commendations.  The Court held that the judge did erroneously charge jury as to " sudden emergency" ; however, the error was not prejudicial.  As to plaintiff’s appeal of trial justice’s refusal to include prejudgment interest, the Court held that, in order to satisfy legislative intent, G.L. (1956) § 9-21-10 required the calculation of interest on the judgment award.  

East Coast Collision &  Restoration, Inc. v. Robert Allyn et al, No. 98-404 (December 15, 1999)

Defendants appealed denial of motion for judgment as a matter of law.  Tenant received verdict in its favor for landlord’s negligent maintenance of premises.  Defendants claim that law does not impose duty on landlords to maintain non-residential property.  After finding that the landlords did not meet exception to general contractor liability, the Supreme Court held that neither the lease nor the owner’s efforts to repair a fuse panel imposed a duty to repair and maintain the building in this case.  Judgment reversed and case remanded.

Anthony J. Cipolla v. Rhode Island College, Board of Governors for Higher Education, 98-119 (December 15, 1999)

Plaintiff filed grievance under collective bargaining agreement seeking retroactive inclusion in state pension program.  The grievance was denied and plaintiff decided not to arbitrate.  Plaintiff then filed complaint in Superior Court.  Defendant motioned to dismiss but was denied by motion justice.  Second motion justice then granted another motion for summary judgment by defendant.  Plaintiff appealed grant of summary judgment and argued that the law of the case applied.  Supreme Court held that second justice could consider motion and was not precluded by the law of the case.  Supreme Court held that once plaintiff sought remedy through collective bargaining method, he should have pursued that remedy to conclusion.  Judgment affirmed.

State v. Bradley Kryla, No. 98-431 (December 6, 1999)   corrected

Defendant, a juvenile at the time and in his mother's presence, signed a waiver of his Miranda rights before delivering a videotaped confession to the brutal murder of a woman. Defendant was found guilty of the murder. In his appeal from that conviction, defendant alleged two errors by the trial justice: the denial of his motion to suppress the statement and the denial of his motion for a mistrial. The court found defendant came to the police station on request from the police, and not because he was under arrest. Moreover, probable cause supported his subsequent warrantless arrest at the station.

Capitol Properties, Inc. v. State of Rhode Island et al, No. 99-324 (December 2, 1999)

Supreme Court affirmed summary judgment entered by trial justice because claims the claims of the various government actors regarding condemnation award were without merit.  The Court adopted the decision of trial justice with a few modifications.  Judgment affirmed.

Irene Brooks v. Dockside Seafood, No. 98-311 (December 2, 1999)

Appellant appealed decision of WCC denying her two petitions for benefits based on the finding that they were barred by G.L. 1956) § 28-35-61, which only allows for a six month amendment window.  Appellant argued that the amendment period should have been two years pursuant to § 28-35-57.  Supreme Court held that WCC Appellate division erred as a matter of law because §28-35-61 was not meant to be a statute of limitation; rather, the applicable statute was §28-35-57.  The Court stated that the manifestation of the injury and consequent incapacity should be the primary consideration of the WCC.  Case remanded to WCC.

State v. Manuel DaSilva, No. 97-553 (December 2, 1999)

Defendant appealed conviction on ten counts of child molestation.  Defendant argues that trial justice erred by (1) denying his motion to pass the case because a juror could not fully participate in deliberations, and by (2) denying his motion for judgment of acquittal/new trial.   Supreme Court held that trial justice was clearly wrong for not inquiring further into juror’s statements, which resulted in violation of defendant’s right to an impartial jury.  The Court found no error regarding the motion for acquittal because the bill of particulars, together with the jury instructions, adequately clarified the counts before the jury.  Conviction vacated and case remanded.

Kathleen Marie Donelan v. James M. Donelan, No. 97-615 (December 2, 1999)

Defendant appealed family court order that awarded his ex-wife half of the accrued interest on his retirement account.  The settlement agreements were not merged, so the Court applied contract principles.  Based on the two settlement agreements and equitable principles, the family court did not err in awarding fifty percent of retirement account and interest.  Judgment affirmed.  

Susan Taylor et al v. Delta Electric Power, Inc., No. 98-331 (December 2, 1999)

In its appeal, defendant employer claims trial justice erred by confirming arbitration award in favor of plaintiff employee.  Supreme Court noted that Superior Court must confirm arbitration award unless it should be vacated pursuant to G.L. (1956) § 10-3-12.  Here, trial justice correctly found that arbitrator was not collaterally estopped from deciding plaintiff’s breach of contract claim.  Moreover, defendant failed to establish its quantum of proof regarding its allegations of favoritism.  Judgment affirmed.  

Stephen Baccari et al v. Walter Donat et al, No, 98-275 (December 1, 1999)

Plaintiffs, who brought claim of malpractice, appealed trial court judgment in favor of defendant hospital and asserted that the trial justice issued erroneous jury instructions as to the applicable standard of care to the hospital’s resident physicians.  Supreme Court determined that a jury could have interpreted the instruction to mean that residents were subject to lesser standard of care.  Judgment vacated and case remanded.

Kenneth L. Maynard et al v. Charles W. Beck et al, No. 98-258 (December 1, 1999)

Plaintiffs appealed judgment for defendants, municipal planning commission and other town officials, in plaintiffs' lawsuit over defendants' formulation of a new town zoning ordinance. Plaintiffs claimed that motion justice erred by dismissing claims based on legislative immunity because defendants did not act in the requisite capacity while they were drafting the ordinances.  Court found that defendants performed their discretionary functions by acting and were therefore immune.  Judgment affirmed.

Henry B. McAlice et al v. Safeco Life Insurance Company, No. 97-356 (December 1, 1999)

This case came before us on appeal from a judgment of the Superior Court in favor of the defendant, Safeco Life Insurance Company. The trial justice, sitting without the intervention of a jury, held that the defendant was not liable to the plaintiffs, Henry B. and Elaine McAlice, for the tortious acts of Louis Thacker, a financial planner who had a contractual relationship with the defendant to sell its investment products. The trial justice found that Thacker was not the defendant's agent and, therefore, the defendant was not vicariously liable for Thacker's conversion of the plaintiffs' investment money entrusted to him. Since this Court is evenly divided on the issues raised by this appeal, the judgment of the Superior Court is hereby affirmed.

In re David G., No., 99-17 (November 24, 1999)

Respondent juvenile appealed from family court justice’s adjudication of delinquency, which was premised on his committing second-degree sexual assault,    G.L. (1956) § 11-37-4(2). Respondent claimed that the trial justice misconceived evidence, that the state did not meet its burden of proving every element, and that the sexual registration law is unconstitutional.  First, trial justice weighed contradictory testimony and acted as the factfinder without misconceiving evidence.  Second, there was sufficient evidence from which it could be determined that state met its burden.  Finally, the argument concerning the constitutionality of sexual offender registration was not preserved for appeal.  Judgment of Family Court affirmed.

State v. Dennis Evans, No. 95-709 (November 24, 1999)

Defendant appealed his conviction of bank robbery and argued that (1) he was prejudiced by the trial justice's refusal to sever counts related to two separate robberies, (2) the handgun was not linked to all robberies, and (3) the trial justice erred by denying motion for acquittal.  First, trial justice did not abuse discretion because the indictment established a common plan and scheme.  Second, since reasonable inference existed that handgun admitted was the handgun used in crime, it was relevant and admissible.  Finally, since letter written by defendant supplied proof that he knew of the robbery, trial justice did not err in denying motion to acquit.  Judgment affirmed.

Glenn McCrory and Ann McCrory, d.b.a. Frenchtown Auto Sales v. Robert Spigel, No. 98-126 (November 23, 1999)

Defendant car dealer appealed grant of summary judgment for plaintiffs ordering indemnification for conveying to the plaintiff a stolen car.  First, the defendant argued that the plaintiffs should have first sued his corporation; however, the corporation was not licensed and the defendant sold the automobile in his individual capacity.  Second, defendant argued that plaintiff must show that he was negligent; however, when one party is blameless and the other at fault, negligence need not be shown.  Judgment affirmed.

American Power Conversion v. Benny's, Inc., No. 98-379 (November 23, 1999)

Employer filed motion for apportionment pursuant to G.L. (1956) § 28-34-8, after an employee became disabled but before compensation was paid.  Both WCC trial judge and appellate panel found that apportionment was appropriate.  Supreme Court reversed the panel’s decision.  The Court held that the purpose of the statute was to allow for expedited compensation to flow to the disabled employee, only afterwards could an employer motion for apportionment.  

State v. David Harding, 98-19 (November 23, 1999)

Defendant appealed conviction for first-degree robbery on the grounds that trial justice improperly excluded evidence and allowed the State to state a fact not in evidence in its closing argument.  First, trial justice properly found evidence of knee injury irrelevant and not admissible.  Second, trial justice did not err in excluding witness testimony as hearsay.  Finally, the factual statement by the State in its closing was in evidence.  Conviction affirmed.

Operation Clean Government v. Rhode Island Commission on Judicial Tenure and Discipline, No. 99-304 (November 19, 1999)

Petitioners sought mandamus and/or certiorari to review decision of the Rhode Island Commission of Judicial Tenure and Discipline (defendant) dismissing misconduct charges against four administrative judges; also to issue a private reprimand to the chief judge of the Administrative Adjudication Court (AAC).  Supreme Court held that the general laws did not provide for appeal of dismissed charges to the Court and that the proceedings are confidential.  Here, petitioners failed to produce adequate evidence to justify the Court’s review of defendant’s investigative procedures and deliberations.  The writ was denied.

Sylvia Carolina Africano v. Frank R. Castelli, No. 94-211 (November 17, 1999)

Appellant appealed order restraining and enjoining him from having any contact with his daughter until he engaged in sexual offender treatment and obtained the permission of the Court.  Appellant failed to adequately preserve for appeal the offer of proof necessary for the trial justice’s determination; however, the Supreme Court stated that the correct standard of proof is clear and convincing evidence, not clear and convincing.  The appellant also failed to preserve the issue of the trial justice’s admittance of expert testimony.  The Supreme Court did, however, agree with the appellant that the trial court’s visitation conditions constituted abuse of discretion.  Here, there was a lack of evidence indicating that appellant’s daughter’s physical, mental or moral health would be endangered by visitation.  

Town of Warren v. Sandra Thornton-Whitehouse, in her capacity as Chairperson of the Coastal Resources Management Council et al, No. 97-648 & 97-632 (November 17, 1999)

Town of Warren appealed declaratory judgment of Superior Court holding that the Coastal Resources Management Council (CRMC) possessed exclusive jurisdiction over recreational boating facilities.  Town argued that the Zoning Enabling Act, G.L. (1956) § 45-24-27 et seq., gives it overlapping jurisdiction with the CRMC to regulate the construction of docks.  Supreme Court held that CRMC has exclusive jurisdiction over tidal areas beginning with the mean high-water mark.  The public trust doctrine accords to the state title to all land lying below high-water mark.  Also, the legislature has limited the common law right of owners to wharf out by requiring the approval of CRMC, not local zoning authorities.  Judgment of Superior Court affirmed.

Macera Brothers of Cranston v. Gelfuso & Lachut, Inc., No. 98-201 (November 17, 1999)

Plaintiff instituted civil malpractice claim against former attorney.  The plaintiff’s burden was to show by a fair preponderance a breach of defendant’s duty of care and damages caused thereby.  Supreme Court held that plaintiff failed to show that but for defendant’s negligence, there would have been no damage (here the posting of a bond, which the Court found to be within the discretion of the trial justice).  Superior Court judgment affirmed. 

State v. Timothy Mullen, No. 98-437 (November 16, 1999)

Trial justice dismissed eight criminal counts against defendant because the legislature repealed the criminalization of sodomy, G.L. (1956) § 11-10-1, by consenting adults while the case was pending.  Supreme Court agreed that the charges did not survive through the savings statute, G.L. (1956) § 45-3-23, because the repealed portions of § 11-10-1 were to be regulated by the sexual assault statute, § 11-37-6.  Since the alleged victim was accorded the status of a consenting adult by that statute, the Supreme Court affirmed the dismissal of the charges.

Jean Kelly v. Rhode Island Public Transit Authority and Kinley Jones, No. 98-273 (November 15, 1999)

Plaintiff hit by bus; sued driver and employer.  After defendants won jury trial, trial justice granted plaintiff’s motion for new trial.  Defendants sought recusal of that justice for the next trial, but did not meet their burden of showing personal bias.  Trial justice’s denial of defendants’ motion for judgment as a matter of law on the theory of premises liability was correct because defendant RIPTA owed duty of care to plaintiff.  RIPTA owed plaintiff highest duty of care and foresight while she was on its property.  Judgment affirmed.

Patrick B. Clyne v. William J. Doyle, No. 98-556 (November 10, 1999)

Trial justice determined that plaintiff failed to prove elements of malicious prosecution and abuse of process.  The burden of proof for said actions is clear proof; that is malice and want of cause must be shown by clear proof.  Here, the trial justice’s findings that defendant had probable cause to prosecute and possessed good faith in that regard were entitled to great deference.  Judgment affirmed.

State v. Frederick Wilding, No. 97-100 (November 9, 1999)

Defendant appealed his second degree murder conviction of his one month old daughter. The court found no error in the exclusion of the victim's mother's psychological-counseling records.  Also, there was insufficient evidence from which any nonmalicious or negligent act could have been inferred on the part of defendant, and therefore it was proper to refuse to instruct the jury on involuntary manslaughter caused by criminal negligence. The Court properly exercised its discretion in limiting the scope of the defense counsel’s cross-examination of victim’s mother.  Finally, testimony by a witness as to a sound he had heard was probative and relevant, while not being unduly prejudicial. The conviction was thus affirmed.

Antonio M. Frias et al v. Joseph Muratore et al, No. 98-212 (November 3, 1999)

Appeal by Defendant real estate brokers of the Superior Court order, which denied their motion to vacate the judgment in favor of Plaintiff purchasers, who had been granted summary judgment in their effort to reclaim funds paid to Defendants pursuant to an ultimately rescinded purchasing agreement.  The Supreme Court held that the trial justice’s denial did not constitute an abuse of discretion since Defendants had not provided sufficient evidence of fraud, mistake, inadvertence, substantial surprise, or excusable neglect, to warrant vacating the judgment under R.C.P. 60(b).  

Nathan Habib v. Empire Productions, Inc., d.b.a. Empire Theater et al, No. 98-165 (November 1, 1999)

Appeal of the Superior Court order which was entered after a jury verdict in favor of Defendant  and which denied Plaintiff’s motion for a new trial. The Supreme Court affirmed the judgment of the Superior Court, finding that although the trial justice misstated the required standard of proof required for assumption of the risk, there was no objection to the language used in the instruction, and thus it became the law of the case and was not before the Supreme Court.  The Supreme Court also held that there was sufficient evidence produced so as to warrant jury instructions regarding assumption of the risk. 

State v. James Oisamaiye, No. 98-303 (November 1, 1999)

State’s appeal of the Superior Court order which suppressed the out-of-court statements of the victim. The Supreme Court vacated the order of the Superior Court and found that the trial justice was clearly wrong and erred in excluding the victim’s initial excited responses as inadmissible hearsay.   According to the Supreme Court, although the exact time that the injuries occurred was unclear, the evidence shows that when the witnesses arrived, the victim was extremely upset, shaking, speaking loudly, and laboring under the stress of a startling event.  Although the victim was initially too upset for the witnesses to understand him, they calmed him enough so that he could be understood, and his subsequent statements, which were made while he was still shaking and nervous, constituted excited utterances and were admissible pursuant to the R.I. R. Evid. 803(2). 

In re Ryan B., No. 97-153 (October 27, 1999)    Corrected

Appeal of the sufficiency of evidence to support the Family Court adjudication of first-degree child-molestation sexual assault.  The Supreme Court affirmed the Family Court’s adjudication.  Although Respondent argued in his appeal that that there was no evidence that the victim's mouth ever touched his penis and that the victim's demonstration indicated a lack of penetration, the Supreme Court held that the record contained evidence from which an inference of penile insertion into the victims' mouths was properly drawn.  Furthermore, the Supreme Court held that the act of fellatio constituted penetration as a matter of law.  In response to Respondent’s argument that the victims did not undertake any actions at his direction, the Supreme Court held that they were satisfied, after a consideration of the totality of the evidence and all of the circumstances surrounding the commission of these acts, that the evidence was sufficient to permit the trial justice to infer that the acts in question were committed upon Respondent’s instruction.

Union Village Development Associates v. Town of North Smithfield Zoning Board of Review, No. 97-506 (October 27, 1999)

Appeal by Defendant town and Defendant zoning board of the State Housing Board of Appeal’s (Housing Board) decision, which vacated the zoning board's denial of Plaintiff developer's application for a comprehensive permit under the Low and Moderate Income Housing Act, G.L. 1956 §§ 45-53 et seq.  The Supreme Court found that the Housing Board’s decision was insufficient as a matter of law since the Board’s vote was by less than the majority required by G.L. 1956 § 45-53-5. Thus, the Housing Board's decision was vacated and remanded for a new hearing.

State v. Orlando Luciano, No. 96-497 (October 26, 1999)

Appeal by Defendant of a judgment of conviction entered after a jury trial in the Superior Court.  Defendant argued that the trial justice should have suppressed eye witness identifications and should have ordered a mistrial.  However, the Supreme Court found that the trial justice was not clearly wrong in denying Defendant's motion to suppress the photographic array, the identification based upon a single photograph, and the identification based upon the one way mirror, since the police procedures were not so unnecessarily suggestive as to give rise to a substantial likelihood that Defendant was misidentified.  Additionally, the Supreme Court held that the totality of the circumstances show that the identifications were independently reliable.  Furthermore, Defendant's motion for a mistrial was properly denied because any prejudicial remarks did not rise to the level of inflaming the jurors to the point where they could not dispassionately evaluate the evidence.

State v. Gary Paull, No. 98-281 (October 26, 1999)

Appeal by Defendant of the judgment of the Superior Court which was entered after a bench trial and convicted him of three counts of child molestation.  The Supreme Court vacated Defendant’s conviction since he did not put his waiver of his rights to a jury trial in writing until after the conviction.   Despite the fact that the trial court instructed Defendant on the consequences of the waiver and Defendant orally agreed to waive his right to a jury trial, the Supreme Court held that the Super. R. Crim. P. 23(a) requirement that a jury waiver must be in writing must be adhered to strictly.

In re Estate of Stanley E. Speight.  Francis M. McBride, Administrator of the Estate of Stanley E. Speight, and Western Surety Company v. Colin David Leach, Nos. 98-238 & 98-238 (October 26, 1999)

Appeal of the Superior Court dismissal of an appeal of a Probate Court decree.  The Supreme Court affirmed the trial justice’s determination that the Probate Court had no authority to vacate a decree and re-enter the decree on a later date in order to give the aggrieved party the ability to appeal the decree to the Superior Court within the requisite twenty day time period.  The Supreme Court held that pursuant to G.L. 1956 § 33-23-1(1), a party that is aggrieved by the decree of the Probate Court must appeal to the Superior Court within 20 days after the Probate Court’s execution of the order or decree.  Since that statute is statute is jurisdictional, failure to proceed within the time prescribed cannot be waived or overlooked.  The proper remedy was not to request the Probate Court to vacate its decree and re-enter it on a later date, but rather, the proper remedy was to petition the Superior Court, pursuant to G.L. 1956 § 9-21-6, which permits an aggrieved party to file a petition to appeal within ninety days following entry of an order or decree if an appeal was not timely filed owing to accident, mistake, unforeseen cause, or excusable delay.

Maureen E. D'Onofrio v. David P. D'Onofrio, No. 99-149 (October 21, 1999)

Appeal from a Family Court order denying Plaintiff’s (mother) motion for a change of physical possession concerning the minor child of her marriage to Defendant (father).  Plaintiff argued that the Family Court judge disregarded the court-appointed guardian ad litem’s testimony and recommendation that the child's best interests would be served by living with her mother in England  However, the Supreme Court found that no law requires that a guardian ad litem's recommendations and/or report should carry greater weight than any other evidence presented.  Therefore, since the record indicated that the Family Court judge considered all the evidence, as well as the statutes and the guardian ad litem's report, the Supreme Court upheld his decision that Plaintiff had not met her burden to establish a substantial change in circumstances.

Robert Martino v. Patrick Leary et al., No. 98-172 (October 21, 1999)

Appeal of the Superior Court entry of judgment as a matter of law in favor of Defendant drivers/employers in a negligence action involving two separate vehicular accidents.  The Supreme Court vacated the judgment, finding that the trial justice failed to submit the question of negligence to the jury, but instead invaded the province of the jury by impermissibly finding facts.  

Lou Ann Lauro v. Kenneth G. Knowles, M.D., et al, No. 98-74 (October 21, 1999)

Appeal of the Superior Court grant of summary judgment in favor of Defendant doctor.  In the underlying case, Plaintiff alleged that her eye was injured by the anesthesiologist during surgery for carpal tunnel, and brought a medical malpractice case against Defendant based upon informed consent and a " captain-of-the-ship" or agency theory.  Utilizing agency principles, the Supreme Court affirmed summary judgment in favor of Defendant on Plaintiff's " captain-of-the-ship" theory, finding that Plaintiff had not introduced evidence from which a fact finder could conclude that Defendant had control over the anesthesiologist.  The Supreme Court declined to decide whether Plaintiff's " captain-of-the-ship" theory might have some validity in other factual circumstances.   Furthermore, in light of the dearth of evidence showing that Defendant had control over the anesthesiologist or that he otherwise had any role in causing Plaintiff's eye injury, the Supreme Court found that res ipsa loquitur did not apply.  However, with regard to Plaintiff's lack-of-informed-consent claim, the Supreme Court reversed the grant of summary judgment in favor of Defendant and remanded the case for the resolution of whether Defendant owed Plaintiff any duty to obtain her informed consent to the anesthesia and whether there existed any genuine issue of material fact in that respect.

State v. Jesse Lee Robertson, 96-186 (October 20, 1999)

Petition for certiorari in which Defendant sought review of a judgment for convictions for robbery in the second degree and for two assaults with intent to commit murder.  Defendant's petition was denied, and his convictions were affirmed. The Supreme Court concluded that the taking of an article from another and the snatching of a necklace from a victim's neck rose to the level of force necessary to establish robbery. The Supreme Court further concluded that the trial justice did not abuse his discretion in admitting certain questions on cross-examination.  According to the Supreme Court, the disputed questions were not prejudicial, since each item of information elicited by the disputed questions was made available to the jury by other testimony, and the state presented overwhelming evidence of Defendant's guilt.

Michael Houlihan et al v. Zoning Board of Review of the Town of New Shoreham et al, No. 99-281 (October 12, 1999)

Petition for certiorari in which Petitioner homeowners sought review of the Superior Court order which denied their request for a preliminary injunction to curtail any further construction of Respondent neighbors' garage.  The Supreme Court quashed the order which had denied the preliminary injunction, since it found that the trial justice had abused her discretion and had erred in her finding that Petitioners lacked standing to seek Respondents’ compliance with restrictive plat-lot-use covenants contained in the respective deeds of the parties.  According to the Supreme Court, state law permits plat-lot owners to seek judicial assistance to compel compliance by another lot owner with restrictive covenants, when recorded plat-lot restrictions were intended to provide for a uniform development and use of platted subdivision lots. 

In the Matter of Steven M. Rossi, No. 99-358 (September 21, 1999)

Review of the Supreme Court Disciplinary Board (Board) recommendations.  The Supreme Court found that the facts of the complaints demonstrated that Respondent had engaged in serious neglect of matters entrusted to his care; had lied to clients regarding the status of their cases; had commingled and converted clients' funds in his possession; and had abandoned his responsibilities as a member of the bar.  Thus, the Supreme Court agreed with the Board recommendation that Respondent attorney be disbarred for professional misconduct.

In the Matter of Harold E. Krause, No. 99-368 (September 21, 1999)

Review of the Supreme Court Disciplinary Board (Board) recommendations. The Supreme Court agreed with the Board recommendation that Respondent attorney be disbarred for professional misconduct.  According to the Supreme Court, there was no merit to Respondent’s arguments that he believed the disciplinary hearing was postponed so his attorney could prepare an affidavit; that he was prejudiced due to the consolidation of 10 complaints into one hearing; or that his due process rights were violated because disciplinary counsel advised him he could answer the charges when convenient.  Furthermore, the Supreme Court found that Respondent's persistent pattern of misconduct, extending over a significant period of time, involving numerous clients, and implicating a host of disciplinary violations, required disbarment.

  
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