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)