State v. Adrian Bustamante, No. 97-32 (August 2,
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,
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
State v. Andrew Znosko, No. 99-118 (August 2,
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
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,
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)
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
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
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)
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
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,
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
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,
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,
The petitioner was convicted of
sexual molestation and sexual assault. The petition asked for a writ of
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
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,
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
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"
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
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
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,
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
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
State v. Roger E. Bruyere, No. 99-122 (June 6,
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
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,
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,
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
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
State v. Demetrius Jackson, No. 98-58 (May 2,
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,
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
State v. John Catalano, No. 98-59 (April 28,
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,
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
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
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
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
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
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,
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,
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.
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
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
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
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
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,
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
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
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
State v. Richard Addison, No. 97-293 (March 21,
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
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
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)
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)
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,
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,
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
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,
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
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
State v. George Sorel, No. 97-570 (February 21,
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
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
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
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
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
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
Town of Lincoln et al v. City of Pawtucket et al, No. 98-325 (February
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
State v. Joseph Brouillard, No. 96-344 (February
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,
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
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
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
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
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
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
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
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
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
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,
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
State v. Derek Brown, No. 97-52 (January 21,
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,
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)
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
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
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,
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.
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,
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,
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.
State v. Charles Austin, No. 97-219 (December
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)
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.
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,
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
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
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.
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,
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,
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
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
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
State v. Frederick Wilding, No. 97-100 (November
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
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.
In re Ryan B., No. 97-153 (October 27, 1999)
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
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
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
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,
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
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
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
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
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.