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Opinions (2000-2001)

 
Supreme Court
Published Opinions 2000 - 2001 Term

State v. Gahil Oliveira et al, No. 99-7 (July 6, 2001)

Three defendants were accused of conspiracy and murder.  One victim was killed but another escaped. The surviving victim identified two defendants as the shooters and two other defendants as those in the vehicle. After conviction, the defendants appealed. The Court rejected allegations that evidence was improperly admitted due to the state's discovery misconduct. An out-of-court identification did not involve state action. The trial justice did not err in questioning jurors collectively about whether they had seen a newspaper article about the crimes. The trial justice did not err in refusing to recuse herself due to the fact that the murder victim's mother was to act on the justice's court nomination. There was no prejudice resulting from an allegedly inappropriate remark made by the trial justice. The trial justice did not erroneously limit the defense's examination of two witnesses, and there was no prejudice from the denial of one defendant's motion to sever.

In the Matter of Joseph A. Cozzolino, No. 01-240 (July 3, 2001)

The lawyer was the subject of a disciplinary board complaint.  Former clients alleged that they had paid the attorney’s fee but never received the work product.  The Court held that the attorney violated several ethical rules. Since the attorney had a long history of disciplinary actions, the Court indefinitely suspended his license.

In the Matter of William R. MacLean, No. 01-216 (June 29, 2001)

The attorney was the subject of a disciplinary board complaint. The attorney was relatively unresponsive to the investigation but admitted his acts. Finding that the attorney's medical and psychological problems made it difficult to attend to his practice, the board established a monitoring program and recommended a public censure. By the time the Court reviewed the recommendation, however, it had also received notice that the attorney had failed to follow the monitoring program and that several more clients had filed complaints against him. Therefore, despite the mitigating circumstances, the Court determined that an indefinite suspension from practice was the only way to protect the public.

State v. Jacques Gauthier, No. 99-270 (June 29, 2001)

The defendant was still on probation when he was present at, and possibly committed, the murder of his wife's lover. The trial justice found that he had not violated his probation under Rule 32(f) because he was not convinced that defendant was the murderer. The Court granted the state's petition for certiorari on the ground that if defendant were found not in violation of probation in connection with the murder, collateral estoppel would preclude further prosecution. The Court reversed the trial justice’s finding of no probation violation.  The standard was not whether defendant had committed a murder, but simply that he had failed to keep the peace and remain on good behavior.

State v. Jeffrey O'Brien, No. 98-261 (June 29, 2001)

The defendant asked his fraternity brother to videotape his intimate relations with the victim. On appeal, the Court determined that the videotape recorder, was an "interception device" under Rhode Island law. The Court also concluded that the trial justice’s failure to read to the jury the statutory definitions of "intercept" and "intercepting device" was not reversible error. The Court defined "willfully," in the context of G.L. 1956 § 11-35-21(a)(1), as acting voluntarily and intentionally, and not because of a mistake or accident or other innocent reason. The trial justice’s refusal to give an instruction distinguishing between committing a tort and acting for the purpose of committing a tort was not reversible error. The videotape was properly admitted into evidence because its probative value was not substantially outweighed by the danger of unfair prejudice. No other errors were made and the conviction was affirmed.

Diane S. Cronan ex rel. State v. John J. Cronan, No. 99-378 (June 28, 2001)

The Superior Court had permitted plaintiff to pursue a private prosecution of her husband after the Attorney General had failed to prosecute.  The defendant challenged the Superior Court's jurisdiction to hear and determine the private prosecution of a criminal complaint. The Court declined to exercise its supervisory powers to establish a per se rule prohibiting private prosecutions, because the Attorney General's failure to assert control over a criminal prosecution initiated by a private complainant, even a misdemeanor charge, did not deprive the Superior Court of jurisdiction to hear and determine the charge. 

Earl H. Webster v. Louis A. Perotta et al; Stephen J. Riccitelli v. Louis A. Perotta et al; Vincent J. Ferrante, Sr. v. Town of Johnston et al; Ruth V. Bolton v. Louis A. Perota et al, No. 00-333 (June 27, 2001)

G.L. 1956 § 45-19-1, the "Injured on Duty" statute, guaranteed full pay to police officers and firefighters injured in the line of duty. Several retired police officers sued their former municipal employer for failure to properly compensate them, and the town failed to respond to their complaints.  Default judgments were entered in favor of the claimants, and the trial justice ordered the town to pay the retirees.   The Court determined that although the default judgments precluded the town from disputing liability, the trial justice still had to determine damages.  Since the statute only provided full compensation for non-retired public employees, the Court remanded for a hearing on what salary and benefits were due claimants under the "IOD" statute prior to their retirement.   Prejudgment interest was not recoverable because the town was exercising a governmental function.

In re Steven E. Ferrey, No. 2001-172 (June 26, 2001)

A board permitted an attorney not licensed to practice in Rhode Island to appear before it. After the attorney had appeared before the board on several occasions, he filed a motion with the Court of Rhode Island for pro hac vice permission to provide legal services in Rhode Island. The Court ruled that it had the exclusive and ultimate authority to determine who may or may not be permitted to practice law in Rhode Island and, although the Court would grant the attorney's motion seeking permission to practice before the board, that grant was effective on the date of the Court's opinion, and not, as the attorney had requested, nunc pro tunc to the date the attorney first appeared before the board.

Kingstown Mobile Home Park, Pearl Krzak, No. 99-166 (June 26, 2001)

The landlady of a mobile home park sought to evict a tenant.  When she was prevented from doing so she challenged the constitutionality of the Rhode Island Mobile and Manufactured Homes Statute, G.L. 1956 § 31-44-1 et seq. On appeal, the Court determined that the placing of special limitations on landlords in the special situation of mobile homes was justified by legislative findings of tenant vulnerability. The Court did not review the landlady's constitutional challenge, because she failed to give required notice to the attorney general, and found that none of her reasons for eviction appeared in the exclusive list at G.L. 1956 § 31-44-2(a).

John H. Janson v. Patricia J. Janson, No. 99-490 (June 25, 2001)

On appeal, the wife argued that the trial justice's refusal to hear her motion and the subsequent entry of the qualified domestic relations order constituted reversible error. Upon review, the Court reversed and remanded the judgment. Because the parties' property-settlement agreement and the trial justice’s decision were silent with respect to when the wife was entitled to receive either actual or equivalent pension payments, the trial justice should have resolved the ambiguity based upon principles of equitable distribution rather than simply adopting, without sufficient explanation or justification, the husband's preferred reading of the agreement. In the absence of a clear agreement specifying how and when the husband's pension was to be valued and distributed to the wife, it was inequitable for the trial justice to allow the husband to unilaterally deprive the wife of her share of the pension by delaying his retirement until some uncertain date in the future when he might decide to retire.

Maria Craveiro v. Aurelio Craveiro v. Dalia Duarte et al, No. 00-381 (June 22, 2001)

When the husband and wife divorced, they owned property in the United States and in Portugal. The Family Court trial justice ordered the husband, who had returned to Portugal, not to dispose of the Portuguese property, as it was to be used in determining equitable distribution.Four days later, he sold the property to relatives at a fraction of its value. The Court dismissed as untimely the husband's and relatives' appeals of a judgment awarding the wife a divorce, set aside the conveyance as fraudulent, and awarded statutory attorney’s fees to the wife.Upon reviewing the trial justice’s finding that that the husband and his family consistently acted to prevent an equitable distribution from occurring, the Court found no clear error and therefore sustained the trial justice’s decision.

Richmond Square Capital Corporation v. Richard Mittleman et al, No. 99-551 (June 21, 2001)

Lender alleged that lawyers failed to properly advise it about taxes due on the real estate. When the taxes came due, lender paid them to protect the collateral. After the borrower defaulted, lender sought to enforce a guaranty of the loan and settled its claim with the guarantor. On appeal, lawyers argued that the trial justice erred in excluding evidence relating to the settlement between lender and the guarantor. Lawyers argued that evidence of the settlement would have reduced or negated lender's damages arising from the malpractice. The Court determined that there was no abuse of discretion in refusing to admit the settlement documents. Payment of the taxes was an expense that lender had to incur regardless of the ultimate fate of the loan or the value of whatever settlement it was able to negotiate. Additionally, the collateral source doctrine mandated that evidence of payments made to an injured party from sources independent of a tortfeasor were inadmissible and should not diminish a tortfeasor's liability to the plaintiff.

The Providence Journal Co. v. Convention Center Authority, No. 99-320 (June 21, 2001)

On appeal, the newspaper contended that the trial justice erred in finding that the records sought from the authority were exempt from public disclosure under the Rhode Island Access to Public Records Act (APRA).The authority, on the other hand, maintained that the documents sought by the newspaper were protected from public disclosure under the APRA. The Court held that the documents relating to the negotiations between the authority and the representatives of the golf tournament and banquet were not subject to disclosure under the APRA because the information amounted to confidential commercial or financial information obtained from the authority's prospective customers. However, the final contract between the parties was subject to disclosure under the APRA, because once the negotiations were solidified into a final agreement between the parties, that agreement, or at least portions of it, should have been available to the public pursuant to the APRA. If the final contract included confidential or privileged financial information of the customers, and was segregable, that limited information was subject to redaction.

Vivian J. Viti v. John N. Viti, No. 00-73 (June 21, 2001)

Upon husband and wife's divorce, the trial justice awarded the husband 40 percent of the marital estate and the wife 60 percent. On appeal, the husband argued that the trial justice failed to set forth with specificity her reasons for awarding the wife 60 percent of the marital assets. Upon review, the Court affirmed the trial justice’s division of the parties' marital assets. Although the trial justice did not state with specificity the factors she was relying on in awarding the wife 60 percent of the marital assets, she did consider all the evidence in light of the factors set forth in R.I. Gen. Laws § 15-5-16.1. The Court reviewed the trial justice’s decision and determined that all the necessary facts and statutory factors were considered. Consequently, the trial justice did not err or abuse her discretion in ordering an equitable distribution of the parties' marital assets.

In re Samson P., No. 00-202 (June 21, 2001)

The parents appealed an order terminating their parental rights. The Court found that both parents suffered from mental illness. The child had respiratory problems and required special medical care. There was overwhelming evidence of parents' collective cognitive and psychological deficiencies. The child had substantial medical needs, and parents were unable to properly care for him. The parents had failed to accept or follow through with the various plans for reunification. As a result, the Court ruled them unfit to raise the child.

Jan Reitsma et al v. Pascoag Reservoir & Dam, LLC,  No. 00-306 (June 20, 2001)

In 1964, the state purchased a lot abutting a private lake owned by a corporation. In 1965, the state constructed a boat ramp on the lot to give members of the public access to the lake. The ramp extended into the lake and was partially submerged at ordinary high water levels. Evidence showed the state allowed members of the public to use the boat ramp and that the corporation did not complain about that use until 1997 when it posted a "No trespassing" sign near the ramp. The Court determined that (1) the state was not limited to using its power of eminent domain to acquire property; (2) the law permitted the state to acquire an easement by prescription or title by adverse possession over property that was privately owned; and (3) because the state's construction of the boat ramp and its subsequent maintenance of that structure during uninterrupted use by the public over the next 32 years was adverse, continuous, and open and notorious, the state acquired a portion of the lake bottom by adverse possession and also acquired a prescriptive easement, on behalf of the public, to use the ramp for purposes of obtaining access to the lake.

State v. Paul Furtado, No. 00-44 (June 20, 2001)

The charges against defendant stemmed from a domestic dispute with the defendant's former girlfriend. The defendant argued on appeal that there was gross disparity between the sentence imposed on him and those imposed on similar offenders, and that the sentence was manifestly excessive and without justification. The Court determined that defendant failed to establish that the trial justice abused his discretion in denying his motion to reduce his sentence. Despite defendant's attempt to show that the sentence he received was disparate from other sentences imposed for similar offenses, he failed to meet his burden of showing that there was no justification for the sentence he ultimately received. Moreover, the sentence imposed was within the statutory limitations. Therefore, however disparate it may have been from sentences generally imposed for similar offenses, the sentence was not one that was beyond the power of the sentencing justice to impose, nor was it patently unjustified.

State v. Lucien E. Forbes, No. 99-558 (June 19, 2001)

The defendant borrowed $32,000 from the check holder and gave holder a demand note due 14 days later. The defendant gave the holder a $32,000 post-dated check stating the holder could draw on the account on March 21, or at the latest March 24, but to contact defendant's assistant. There were delays. The holder finally presented the check in June and it was dishonored. The holder complied with the demand requirements of G.L. 1956 § 19-9-26, but defendant did not pay the $32,000. The Court determined that the trial justice had not erred when it denied defendant's motions for acquittal, for certain instructions concerning specific intent, and for a new trial. Under § 19-9-26, defendant's failure to pay the check within seven days of receipt of the certified mailing constituted prima facie evidence of intent to defraud that could rebutted only by the affirmative action of payment of the check in full. That holder knew there might not be sufficient funds was not a defense. The defendant's statement that funds would be available on March 24 also created prima facie evidence of defendant's intent to defraud.

The New England Expedition-Providence, LLC v. City of Providence et al, No. 01-89 (June 19, 2001)

A provision in the city zoning ordinance stated that "the purpose of a major land development project was to allow for the creation of multifamily, mixed use developments or primary through secondary schools through careful site planning." The developer argued that provision exempted its shopping center development from the statutory requirement of G.L. 1956 § 45-24-31(37) requiring city planning review and approval, since the shopping center was not a multifamily, mixed use, or a school. The Court agreed with the trial justice that the development was a § 45-24-31(37) major land development. The ordinance had to be read in conjunction with § 45-24-31(37), which was the enabling act. The language of § 45-24-31(37) was clear and unambiguous, and its definitions superceded any contradictory ordinance definitions. Moreover, under the ordinance, read in its entirety, the development was commercial, and therefore was a major land development project.

Melissa Moseley et al v. Kevin Fitzgerald in his capacity as Treasurer of the City of East Providence et al v. New England Telephone and Telegraph Company et al, No. 99-544 (June 19, 2001)

A 15-year old girl suffered a serious head injury when she tripped on a guy wire that supported a utility pole and fell backwards, striking her head on a sidewalk. Evidence showed that the pole was located near on property owned by a municipality that was the site of both an elementary school and a public playground, and that the pole was jointly owned by a telephone company and an electric company. However, the companies had concluded an agreement which gave the electric company responsibility for maintaining the guy wire. The Court determined that (1) G.L. 1956 § 45-15-9 imposed a requirement on plaintiffs to notify the municipality of the accident within 60 days of the date on which it occurred as a condition to filing suit, and plaintiffs were barred from suing the municipality because they had not given that notice; and (2) because telephone company and electric company had equal ownership and control over the utility pole, they owed an equal duty to correct dangerous conditions and to warn others of dangerous conditions, their agreement notwithstanding.

In re Anthony M., No. 99-489 (June 15, 2001)

A teen-aged mother with a troubled past lost custody of her infant son to DCYF. The agency worked with her for many years, executing five different case plans aimed at preparing the mother to be reunited with her child. The mother never followed through. When the boy was eight years old, DCYF sought to terminate the mother's parental rights and allow the family he lived with to adopt him. The high court held that clear and convincing evidence supported the trial justice’s determination that the mother was unfit and that the boy's best interests required termination. While it was commendable that the mother was married and settled at the time of trial, DCYF had not been made aware of this change and was required to act in the best interests of the child.

Gregory Solas v. Emergency Hiring Council of the State of Rhode Island et al, No. 99-68 (June 14, 2001)

The council held a closed meeting to consider the hiring of hearing officer.The plaintiff, an advocate of the handicapped, wished to be present. The council refused permission.  The Court held the council was a public body as defined by G.L. 1956 § 42-46-2(c), and as such, was subject to the procedures and requirements set forth in Open Meetings Act.The Court found the council possessed significant supervisory and executive veto power over creating or filling state employment positions, and acted in an advisory capacity in state hirings. The Court held the award of fees proper pursuant to § 42-46-8(d) given the fact that that section was amended prior to the time the judgment was entered. Even if the amendment had not been effective at judgment, the Court could have applied the provision.

John Carillo v. State of Rhode Island, No. 92-155 (June 14, 2001)

An important witness at an inmate's trial for murdering a guard was a fellow inmate. The witness testified at the inmate's trial that he had been promised a prison term no longer than 45 years in exchange for his testimony. The inmate applied for post-conviction relief when he learned, many years later, that the witness's sentence had been much shorter. He argued that his due process rights had been violated by the prosecution's failure to disclose the true terms of the plea agreement. The Court did not reach the inmate's constitutional question because it found no clear error in the trial justice's determination that the plea agreement was as described and that its terms were modified only after the inmate's conviction.

Alan MacQuattie et al v. Ralph A. Malafronte et al, No. 99-278 (June 14, 2001)

The plaintiff custodians filed an action seeking a restraining order to prevent a termination hearing from going forward.The restraining order was denied and the custodians' employment terminated. The union filed a grievance contesting the termination. The grievance went to arbitration, where it was denied.At trial, defendants moved for summary judgment. On appeal, the custodians argued that summary judgment was improper because material issues of fact remained about whether the termination constituted an unfair labor practice. The Court noted that the custodians did not present evidence that would support their contention, and that mere allegations to the contrary contained in the custodians' pleadings were insufficient to defeat the motion for summary judgment. Further, the Court asserted that the custodians could not prevail on the unfair representation claim if school district officials did not contravene the collective bargaining agreement.

In re Ginger G., No. 98-509 (June 13, 2001)

DCYF filed a termination of parental rights petition. The mother did not appear for the termination hearing. The trial justice granted DCYF’s request to proceed in her absence. The mother later addressed the court and explained that she had missed the trial date because she had the time wrong. The mother then disputed much of the caseworker's testimony. Notwithstanding her presentation, the trial justice ordered the entry of the decree. Although it was unclear why the mother did not appear, it was known that she had a long history of mental illness and substance abuse that frequently resulted in hospitalization. Therefore, it could not have been assumed that her absence was entirely voluntary. Her guardian ad litem remained entirely passive, and indicated that she thought her responsibilities did not include acting as the mother's legal representative. At a minimum, the trial justice should have inquired about the status or position of the mother and the reason for her absence to ascertain whether the non-appearance was voluntary or involuntary.

Malek Ahmed v. Constance Pannone et al, No. 00-125 (June 13, 2001)

Lawyer filed a second amended complaint after stipulating to the dismissal of pro se complaints. The trial justice found that the client had dismissed at least two previous claims arising from the same facts and that, pursuant to Rule 41(a)(1), the notice of dismissal as to the pro se pleadings operated as an adjudication on the merits. In granting the lawyer summary judgment in the malpractice action, the trial justice found that it was the client's failure to appeal the underlying dismissal that ultimately caused that suit to be dismissed, and that the client failed to show that the dismissal resulted from a breach of the lawyer's standard of care. The Court held that the client's assertion that the lawyer's filing of the stipulation caused him damages was speculative in light of the client's failure to appeal or make a motion to vacate the Rule 41(a)(1) order. Moreover, the client failed to present the necessary expert evidence on the standard of care. The client also presented no competent evidence of consequential damages. In short, the client failed to prove all the necessary elements of his legal malpractice claim.

State v. Kushnowski, No. 00-78 (June 13, 2001)

The defendant's convictions resulted from events which occurred outside a bar where the victim was talking to her boyfriend on a pay phone when defendant grabbed her from behind and punched her in the face. In the ensuing struggle he hit her, fractured her arm, and threw her head-first into his car where he subsequently sexually assaulted her. The Court held the trial justice properly admitted evidence of defendant's prior criminal assaults since he opened the door by having witnesses testify as to his peaceable nature. The jury instructions were also proper. The defendant's request for a simple assault instruction was properly denied since no actual and adequate dispute existed regarding the element that distinguished the greater and lesser charges. The trial justice had no authority to dismiss the count of assault with the intent to commit sexual assault or to merge it for sentencing. However, the vacating of his conviction on the count did not affect his sentence, given that he was not sentenced on the count. Therefore, there was no need for resentencing.

McKinney & Nazareth, P.C. v. Gregory J. Jarmoszko, No. 00-104 & 00-21 (June 13, 2001)

The Court held that default was a drastic remedy which should only be used in extreme situations. The default was improperly entered. The client had responded to the complaint with a document that amounted to a denial of the claim and which constituted a pro se entry of appearance. Since the client had appeared and the law firm was aware of the essence of his answer, the client should not have been defaulted. The trial justice had stayed entry of default to allow the client to proceed with his motion to vacate the default and amend his answer. The client relied on the trial justice’s representation that the entry of default would be stayed. However, the default judgment was actually entered despite an order accompanying the judgment indicating that judgment should not be entered until at least September 21, 1999. Had the trial justice’s order been followed as written, the client's motion to vacate the default would have been heard on September 20, 1999.Instead, the motion was heard on September 17, 1999. At that hearing, however, the motion justice was annoyed with the client's behavior and denied his motion to set aside the entry of default. That motion should have been granted.

Allstate Insurance Company v. Peter J. Lombardi, No. 98-476 (June 12, 2001)

The passenger was injured in an auto accident, and brought an uninsured motorist (UIM) claim against the insurance company. The claim went to arbitration. While the arbitration was pending, a decision was issued which held that under the facts of that case, an insured was not entitled to recover prejudgment interest in excess of the policy limits. Nevertheless, the arbitrators issued an award for the passenger, which included interest in excess of the policy limits. The insurance company tendered a check for the policy limits to the passenger, which included accord and satisfaction language and which the passenger accepted. The passenger then sought confirmation of the arbitration award. The trial justice confirmed the award and required the insurance company to pay interest. The Court determined that while Rule 60(b)(4) allowed relief from a judgment if the judgment was void, a judgment was not void merely because it was erroneous. Regardless of whether the lower court erred on the merits when it entered judgment, the insurance company could not obtain relief merely because of a legal error on the merits when judgment was entered.

Jeanette Calise et al v. Hidden Valley Condominium Assocation, Inc., No. 99-452 (June 11, 2001)

The plaintiff slipped and fell on a former defendant's common area. The plaintiff's husband alleged loss of consortium.A hearing was held to determine the amount of the plaintiffs' damages due from the defaulted defendants.The Court determined that the trial justice’s decision was correct.The comparative negligence statute, G.L. 1956 § 9-20-4, was not a comparative fault statute. Section 9-20-4 did not address proportionate negligence among defendants. Therefore, the Court applied the Uniform Contribution Among Tortfeasors Act to the fact scenario. Since the underlying policies of the Act were to encourage settlements and finalize litigation, the defaulted defendants should not have had the privilege of disputing proportionate liability with defendants who did not default or with the plaintiffs. The plaintiffs conceded that damages payable by the defaulted defendants would be equal to the total damages awarded, reduced by the settlement received from the former defendants.

David R. Heflin v. John Koszela, Jr. et al, No. 99-475 (June 11, 2001)

Tenant rented a house owned by a trust. One of the trust beneficiaries was the son of the owner of a gas company and an officer of another company.The two companies shared offices and employees.When tenant had trouble with his gas heater, gas company sent an employee to fix it. The heater exploded, injuring tenant.He sued both companies and owner's estate for damages, claiming they were alter egos of each other. The claims were heard separately. Both company and estate were granted summary judgment. Tenant's appeals were consolidated. The Court determined that tenant presented sufficient evidence of companys’ alter ego status to go to trial. He failed to timely follow up on his action against estate after his initial claim was disallowed. His negligence action was not a contingent claim. He waived actual notice by filing his initial claim in the probate court.

The Energy Council of Rhode Island v. Public Utilities Commission et al, No. 00-241 (June 11, 2001)

The Rhode Island Utility Restructuring Act deregulated utility service. It provided that electrical distribution companies would be required to offer a standard rate for a transition period, after which customers who had contracted with nonregulated suppliers were to be offered last resort power service. After arranging for an appropriate source for last resort service, an electrical company sought approval for rate increases for its nonresidential last resort customers only.  A group of major business customers challenged the public utility commission's approval of the rate increase as discriminatory and not based on the evidence, but the Court affirmed the increase. Rate differentials not based on cost differentials were not necessarily discriminatory, so long as they were reasonably based on the different circumstances of customers who had no other service options (primarily residential customers) and those who did.  Furthermore, the order was reasonably based on credible evidence.

State v. Rodney Perry, No. 99-137 (June 8, 2001)

The Court concluded that, despite errors made by the trial justice regarding jury instructions as well as not allowing defense counsel to discuss the prosecutor’s failure to call a witness discussed during opening argument, there was substantial other evidence indicating the defendant’s guilt.Therefore, reversal or a new trial was not warranted. Further, the Court did not believe that the prosecution was guilty of a Brady violation in failing to disclose its communicated willingness to consider relocating Kelly if he felt threatened as a result of his trial testimony.The first-degree murder conviction was affirmed.

State v. Corey Martinez, No. 98-308 (June 8, 2001)

As part of a common plan or scheme of a criminal organization, the offenses in the indictments were properly joined.There was no abuse of discretion for failing to sever the cases because there was no showing of substantial prejudice in the joinder.There was no error by the trial justice for failing to allow public funds to be used for an eyewitness identification expert because the trustworthiness of the identification was not beyond the ken of the jury.The conviction was affirmed.

Paula Kevorkian v. Judith Glass et al, No. 00-115 (June 8, 2001)

The defendant filed a pretrial memo that the trial justice treated as a motion for summary judgment, but proper notice was not given to the plaintiff.Summary judgment is a proper vehicle for a trial justice to determine whether a particular statement is defamatory per se. However, once a trial justice determines that a pretrial memorandum sounds in summary judgment, he then must ensure that the statutory notice requirement has been met.Failure to do so, as in this case, was reversible error.

John Miguel v. State of Rhode Island, No. 00-163 (June 8, 2001)

The sole focus of an application for post-conviction relief filed by an applicant who has pled guilty is the nature of counsel's advice concerning the plea and the voluntariness of the plea. If the plea is validly entered, the Court does not consider any alleged prior constitutional infirmity.Further, to prevail on this appeal the defendant must have demonstrated at his post-conviction hearing that his attorney's advice was not within the range of competence demanded of attorneys in criminal cases.Counsel had raised the potential defense of diminished capacity and, therefore, competently represented the defendant.

Sheldon Whitehouse et al v. William Davis et al, No. 00-10 (June 5, 2001)

On appeal from a decision by a justice of the Superior Court, the Court held that a statute requiring funding for a specific environmental hazard, an oil spill or threatened oil spill, was applicable to the remediation of an environmental hazard caused by the stockpiling of millions of automobile tires. The Court agreed with the statutory construction employed by the trial justice respecting the availability of funds from the Oil Spill Prevention, Administration and Response Fund which was created by G.L. 1956 chapter 12.7 of title 46, and affirmed the decision permitting money to be spent to dismantle the stockpile of tires, thereby preventing a catastrophic discharge of a petroleum-based product into the waters of the state.

Michael Sparling et al v. Russell Bizier et al v. Metropolitan General Insurance Company, No. 99-500 (June 4, 2001)

After an insurance policy was cancelled, and summary judgment was granted in favor of insurance company, the insured argued, on appeal, that a genuine issue of material fact remained regarding whether the insured received a cancellation notice and whether the policy permitted cancellation for not paying the premium. The Court concluded that the motion justice correctly ruled on both summary judgment motions because the insurer's proof of mailing provided sufficient proof that notice had been given was not rebutted with competent evidence by the insured, and also, the policy had specific language regarding mailing notice of cancellation for non-payment of a premium.

Phoenix J. Finnegan, a Rhode Island General Partnership v. Seaside Realty Trust et al, No. 2000-162 (June 1, 2001)

The Court noted that, although G.L. 1956 § 44-9-11 was unconstitutional because it did not provide for mail or personal notice to readily identifiable interested parties, the failure of the appellant to record her lease or option to purchase the property was fatal to her claim because the existence of her substantial property interest was not readily identifiable to either the tax collector or the title examiner employed by appellee.The final judgment was affirmed.

Phoenix J. Finnegan,  a Rhode Island General Partnership v. Christopher Bing et al, No. 99-430 (June 1, 2001)

Following a tax sale that was declared void because of a lack of notice to respondent property owner, the trial justice also exercised equitable jurisdiction by requiring reimbursement by city to petitioner.The Court held that the foreclosure of a right of redemption is based purely on statutory law and the trial justice had no discretion to order equitable relief; the petitioner’s remedy was limited by statute, which provided for the filing of a claim for a refund by the petitioner with the city.

State v. Tremayne Clifton, No. 99-157 (June 1, 2001)

The Court affirmed a conviction for assault with a dangerous weapon (G.L. 1956 § 11-5-2(a)) following the trial justice’s denial of a motion for acquittal.In evaluating that evidence, the Court applies an objective test, asking whether the defendant's actions were such that they would have created a well-founded fear or apprehension of an immediate injury on the part of a reasonable person who was confronted with the same or similar conduct. The inquiry focuses solely upon the objective actions and demeanor of the wrongdoer in light of the circumstances.The Court has not erected such rigid requirements of "close proximity" or "extended encounter" to prove the commission of that crime.Also, the Court denied the defendant’s motion to dismiss, brought on the grounds that the defendant was not tried within 120 days pursuant G.L. 1956 § 13-13-1 et seq., the Interstate Agreement on Detainers Act, because good cause had been shown.The dissent suggested an evidentiary hearing in light of the fact that good cause had not been shown in open court and the trial justice did not make a finding of good cause for the continuance, as well as the trial date having been set past the mandatory 120 days prior to any motion for a continuance.

In re Devone S., No. 99-449 (May 30, 2001)

In an involuntary termination of parental rights hearing, the Rhode Island Family Court found, pursuant to G.L.1956 § 15-7-7(a)(2), that father was an unfit parent, and,pursuant to G.L.1956 § 15-7-7(a)(4), that father had abandoned his child.The Rhode Island Court agreed that DCYF had made its prima facie cases, finding substantial evidence of abandonment and unfitness.

Stephanie George v. Faeze Fadiani, D.M.D. et al, No. 00-60 (May 30, 2001)

In a medical malpractice action seeking to hold a dental practice vicariously liable, the trial justice erred in holding that the doctrine of collateral estoppel prevented the plaintiff from bringing suit because prior action was not brought by plaintiff or someone in privity with plaintiff.Further, the trial justice erred in granting summary judgment on the theory that doctor was an independent contractor.Rather, to sustain an action for medical-malpractice against a professional medical corporation based on the theory of apparent authority, the plaintiff must establish that the professional medical corporation, or its agents, acted in a manner that would lead a reasonable person to conclude that the physician was an employee or agent of the hospital, that the patient actually believed the physician was an agent or a servant of the professional medical corporation, and that the patient thereby relied to his detriment upon the care and skill of the allegedly negligent physician, which necessarily involves a fact-intensive inquiry.

William B. Galloway v. Roger Williams University, No. 00-25 (May 25, 2001)

The plaintiff was fired as dean of admissions and filed suit.The Rhode Island Court held that the law in Rhode Island is clear: employees who are hired for an indefinite period with no contractual right to continued employment are considered at-will employees who are subject to discharge at any time for any permissible reason or for no reason at all. It is not the role of the courts to create rights for persons whom the legislature has not chosen to protect.  The plaintiff had actual notice, via his personnel handbook, that he  was an at-will employee.

Ronald Raimbeault et al v. Takeuchi Manufacturing (U.S.) Ltd. et al, No. 99-529 (May 23, 2001)

The Court applied the Daubert standard to the admissibility of expert testimony under Rhode Island Rule of Evidence 702.The Court held that the trial justice did not err in finding that the plaintiffs' witness did not have the knowledge, skill, experience, training, or education required by R.I. R. Evid. 702, nor was his testimony relevant, appropriate, or of assistance to the jury.Therefore, the expert witness testimony was properly excluded.

Bradford Associates et al v. Rhode Island Division of Purchases et al Shaw Construction Corporation v. Rhode Island Division of Purchases et al, No. 2000-160 & 2000-188 (May 23, 2001)

Because an agency hearing was not required by law, the action was not a ‘contested case’ pursuant to G.L. 1956 § 45-35-15, and the trial justice had no jurisdiction to make a determination that the contractors’ suspension implicated a constitutionally protected liberty interest.

State v. Christopher Barnes, No. 99-469 (May 23, 2001) 

The Court reviewed the suppression of certain evidence by the trial justice.The spoliation doctrine was not applicable to good faith scientific testing.Even though sample had been consumed by state laboratory, and thus prevented testing by the defendant, does not violate an accused’s rights.A hearing justice's discretion is not exercised by merely granting or denying a party's request.It was an abuse of discretion to suppress the evidence in a Rule 403 hearing without giving the Court sufficient reasoning.

Norman A. Lizotte et al v. Edna Mitchell v. Yorktown Associates et al, No. 00-23 (May 16, 2001)

After summary judgment was granted in favor of the defendant sellers, the plaintiff purchasers appealed.The Court affirmed.The plaintiffs made no showing of actual misrepresentation that allegedly induced them to close on the property.Further, by accepting the warranty deed, the purchasers waived any contract claims based upon the earlier sales agreement; because the purchasers' contract claims were barred by the doctrine of merger by deed, the issue of recision of the contract necessarily failed.

Elizabeth Ferguson v. Wayland Manor Associates et al, No. 99-485 (May 16, 2001)

The Rhode Island Court vacated summary judgment, holding that the motion justice erred in excluding an expert affidavit. The facts or data relied upon by the expert need not be admissible in evidence if they are of a type reasonably relied upon by experts in a particular field in forming opinions or inferences upon the subject, pursuant to Rhode Island Rule of Evidence 703 (advisory committee's note). Also, when viewing the affidavit in conjunction with other evidence presented during the summary judgment hearing, the affidavit, viewed in the light most favorable to plaintiff, established a prima facie case and raised a genuine issue of material fact about the cause of the fire.

Narragansett Electric Co v. Public Utilities Commission et al, No. 00-235 (May 16, 2001)

The Rhode Island Utility Restructuring Act introduced performance-based rate setting and also contained many policy expressions, giving prime importance to a ratepayer’s interests. The petitioner was obliged, pursuant to the statute, to refund overpayments to its customers.However, the statute did not specifically address refunds received by the petitioner from its own supplier of electrical power. When the utility did receive such a refund, it sought authorization to retain the refund for its equity holders.The utility appealed the Commission's order that it refund the extra money to its ratepayers. The Court reviewed respondent's factual findings with deference, but the Court reviewed the application of the statute de novo, agreeing that the statutory emphasis on ratepayer welfare made the principle of ‘equitable recovery’ applicable even after the enactment of the statute. The Commission reasonably found that the utility had no unrecovered costs and correctly ordered a refund.

In re Christopher S., No. 00-212 (May 15, 2001)

Three questions were certified to the Court: (1) whether the Sexual Offender Registration and Community Notification Act, was constitutional as applied to juveniles; (2) whether juveniles accused of sexual offenses were entitled to a jury trial if the Act was constitutional; and (3) whether a juvenile had the right to a jury trial, if he/she was subjected to registration as a sex offender past his/her 21st birthday.The Court declined to answer the questions because the Family Court had to deal with the issues in the first instance.

Ernest Robinson v. Michael Malinoff, in his capacity as City Manager of the City of Newport et al, No. 99-523 (May 14, 2001)

Intervenor newspaper cited the Access to Public Records Act as basis for reviewing plaintiff’s police personnel files.Intervenor moved for, and received, summary judgment against only plaintiff, and not against the defendant City, based solely upon APRA. On appeal, plaintiff argued the exception to APRA in G.L. 1956 § 38-2-2(4)(A)(I) exempted records concerning a particular and an identifiable person, which, if disclosed, constituted an unwarranted invasion of privacy. The Rhode Island Court vacated the summary judgment because the plaintiff had not relied on APRA, so the trial justice erred in basing summary judgment on APRA, and only the plaintiff, and not the city, as the "public body" and record custodian, was included in the summary judgment motion.  Summary judgment was vacated.

Estate of Maurice A. Gervais, No. 00-64 (May 14, 2001)

Pursuant to G.L. 1956 § 33-25-4, the appellee widow elected to take a life estate in lieu of bequests in will.The probate court granted appellant's motion to enjoin appellee from leasing premises and ordered that the appellee's interest in real estate be valued and paid to her in lieu of her interest in property; that decision was reversed by the Superior Court.On appeal, the Rhode Island Court heldthat the appellee did not abandon her life estate because she had a right to claim a life estate in all of the decedent's real estate owned by him in fee simple, including any rental properties. The probate judge, therefore, exceeded that court’s jurisdiction.

State v. Joseph Perry, No. 99-116 (May 14, 2001)

(Need summary)

State v. Thomas Valenti et al, No. 99-41 (May 14, 2001)

There was overwhelming evidence of guilt, no denial of a right to remain silent because the defense ‘opened the door’, no improperly derogatory comments made by the prosecutor or trial justice, and none of the rulings on the admissibility of evidence was an abuse of discretion.The convictions were affirmed.

City of Warwick v. Mark Adams, No. 00-328 (May 11, 2001)

Certiorari was granted with respect to the request for a holding that defendant had a unilateral right to revoke his waiver to a jury trial within 10-days after an appearance before the district court, pursuant to the Rhode Island District Court Rules of Criminal Procedure 23, and that the absence of counsel during the hearing before a bail commissioner, in any event, constituted the ‘good cause’ needed to revoke the waiver.

State v. Louise Russell, No. 99-504 (May 11, 2001)

The defendant moved to suppress field sobriety tests and breath-test results.The motion was denied and the defendant was convicted.On appeal, the Court held that the officer's actions were justified under the officer's ‘community-caretaking’ function. That is, when the defendant was driving in the breakdown lane, she appeared to have violated the law. Also, in light of the fact that the defendant’s car abruptly stopped a few feet from the officer's cruiser at a place where the car was protruding into the lane of travel, the police officer was allowed to suspect that the defendant was in some sort of trouble and in need of the police officer's assistance. The Court held that the police officer acted reasonably when opening the car's passenger door and asking the defendant what was wrong.

Cheryl A. Pierce v. Paul O. Pierce, No. 2000-81 (May 11, 2001)

In responding to a certified question, the Rhode Island Court stated that, pursuant to G.L. 1956 § 15-5-16.2(b), the family court's jurisdiction over a young adult with special needs who has reached the age of 21 and whose custodial parent was seeking continued child support, is terminated. Caselaw decided before the language establishing the age 21 limit was added to the statute did not provide the family court with jurisdiction to extend a parent's responsibility for the support of a young adult with special needs beyond the age of 21.

Cindy L. Patino, as Administratrix of the Estate of Eugene J. Janarelli et al v. Frank Suchnik et al, No. 99-563 (May 11, 2001)

The plaintiff sued EMTs who responded to a 911 call, but did not transport injured party to the hospital at party’s request and after determining that he did not need medical attention.Pursuant to G.L.1956 § 23-4.1-12(a), emergency rescue personnel enjoy a qualified immunity from negligence claims, provided they are not guilty of gross negligence or willful misconduct in performing their functions. The plaintiffs requested jury instructions based, in part, on department of health protocols for EMTs. The trial justice rejected those instructions and told the jury that the EMTs could be held liable only if the alleged misconduct was a result of gross negligence or willful misconduct. The Rhode Island Court held that the instructions requested by the plaintiffs would have removed the issue of gross negligence from the jury's consideration.The judgment was affirmed. 

James E. Bjartmarz v. Pinnacle Real Estate Tax Service, No. 99-223 (May 11, 2001)

The plaintiff alleged that his employer violated the Rhode Island Whistleblower Act and engaged in improper pay practices.The employer sought to have the lawsuit stayed because of contract language requiring arbitration.The motion justice found the clause unenforceable because he was fraudulently induced to sign the employment agreement.The Rhode Island Court stated that, unless the employee's fraud claim went to the whole agreement and not just the arbitration clause, issues of fraud would have to handle in the arbitration process. Because the employee's fraud claims were unsworn and there were additional facts to be resolved relevant to those claims, the motion justice should have resolved those predicate facts in a trial, or evidentiary hearing, limited to that issue of fraud, before ruling on the motion to stay.

Helen J. L'Heureux v. David L. L'Heureux, No. 00-3 (May 4, 2001)

The husband's duty under the divorce decree to continue his ex-wife's coverage under his employer's health insurance plan ceased pursuant to G.L. 1956 § 27-20.4-1, upon the husband's remarriage, despite the statute not being mentioned in the decree or final judgment.The husband should not have been found in contempt for ending her coverage when he later remarried.

Americo J. Zinno v. Richard Parenaude et al, No. 00-145 (May 4, 2001)

The plaintiff received workers’ compensation after telling his employer that his injury was a result of the work-related activity of moving a table, rather than disclosing that he was assaulted by a fellow employee.The benefits were terminated when it was determined that the injury was arthritic in nature and not work-related.The plaintiff sued under the Whistleblower Act, contending that he was forced into early retirement in retaliation for his whistleblower activities. He claimed that he was "whistleblowing" when he attempted to expose defendant co-worker's harassment and violations of the Occupational Health and Safety Act (OSHA). The Rhode Island Court affirmed the grant of summary judgment, because the plaintiff neither reported the alleged harassment or OSHA violations to a public body, nor did he tell anyone at the defendant university.

Walter Van Cala v. Tiverton Getty, No. 00-31 (May 4, 2001)

The right to a trial by jury is not waived unless one of the requirements set forth in Rhode Island Superior Court Rules of Civil Procedure 39(a) is satisfied. A party who properly asserts a demand for a jury trial is not required, under Rhode Island Superior Court Rules of Civil Procedure 38, to renew such a demand on the date of trial. The plaintiff's right to a trial by jury was denied; the plaintiff was, therefore, entitled to a new trial.

State v. David M. Lynch, No. 98-15 (May 4, 2001)

The standard for police identification procedures is well-settled.The first step is to determine whether the identification procedure used was unnecessarily suggestive.The next step of the analysis --whether the identification lacks independent reliability despite the procedure's suggestiveness – is not necessary unless the first part of the test is answered in the affirmative.With respect to the use of a photo array, in order to determine whether such an array poses a substantial risk of misidentification, a comparison must be made between the description of the suspect given by the witness with the general characteristics of each individual featured in the display.Finally, Rule 804(c) applies in all criminal and civil cases, and is not limited to statements that describe the cause or circumstances of a declarant's impending death, provided that certain constitutional safeguards are metJudgment affirmed.

Dioairo Mercado v. City of Providence, No. 99-448 (May 4, 2001)

The plaintiff sued city for injuries sustained when he fell after tripping in a hole that surrounded a water shutoff valve in a city sidewalk. The trial justice granted the city's motion for summary judgment on the ground that the plaintiff failed to give the city notice within 60 days of his injury pursuant to G.L. 1956 § 45-15-9. The Court on appeal affirmed the judgment. The plaintiff's complaint asserted that the city had a duty to maintain its sidewalks and negligently failed to do so. Such an allegation fell squarely within the provisions of § 45-15-9; thus, the plaintiff was required to comply with the 60-day notice requirement. The plaintiff's failure to provide notice to the city within the statutory 60-day period was fatal to his claim.

Glayds L. Cok v. Paula Read, No. 99-478 (May 4, 2001)

The plaintiff was not given any notice or prior warning that restrictions on her pro se appearances were contemplated. Although defendant maintained that she had been harassed by plaintiff's conduct, there was no evidence that she ever sought relief from such conduct; instead, defendant sought only additional fees and interest as sanctions for plaintiff's civil contempt. plaintiff never was given an opportunity to oppose the pro se restrictions. If the motion justice wished to prevent plaintiff from appearing pro se in any and all civil actions, she had to develop a record showing such widespread abuse of the judicial system as to warrant such a broad prohibition.

Woonsocket Teachers' Guild, Local 951, AFT v. Woonsocket School Committee, No. 00-14 (May 2, 2001)

A special education school leased classrooms from a local high school, and the school's nurse was given the task of administering medicine to the special education students. The teacher's union filed a grievance on behalf of the nurse against the school district and sought to have the dispute arbitrated pursuant to its collective bargaining agreement (CBA). An arbitrator issued a decision in favor of the nurse and the Superior Court affirmed the arbitrator's award. The Court held that the dispute was not arbitrable from its inception and that the arbitrator exceeded her powers. The Court thus vacated and remanded the Superior Court’s decision.  The provision of health services to special education students who attended classes at the high school was within the school district's non-delegable managerial decision-making authority and could not be circumvented by negotiation. Even if the issue had been arbitrable, the award would have been vacated because it was not a plausible interpretation of the CBA, it produced an irrational result, and it manifestly disregarded a relevant contractual provision.

Kevin Tinney v. Harle Tinney et al, No. 99-345 (April 27, 2001)

Plaintiff sought to force the partition and sale of a 60 room castle owned by plaintiff and defendant, husband and wife, in joint tenancy. The plaintiff had received his share of the estate by working first as a plumber on the estate, gaining the trust and confidence of defendant's parents, and eventually being adopted by defendant’s mother after defendant’s father had died. After the mother's death, plaintiff attempted to sever his interest in the property in order to collect the proceeds from the forced sale of the property. The trial justice found that that plaintiff had used undue means to acquire his interest, except for one portion legally obtained, and denied plaintiff's petition. The trial justice also ordered plaintiff to vacate the premises, and plaintiff appealed. The Court found that plaintiff was precluded, on appeal, from challenging for the first time the validity of the introduction of evidence on hearsay grounds. Accordingly, the Court found nothing in the record that demonstrated the material evidence produced by defendants did not clearly exceed the required burden of proof.

Sanders Real Estate Corporation, Agent for Boston Development Company Limited Partnership - I State. v. Joel D. Landry et al, No. 99-447 (April 27, 2001)

On appeal, tenants argued that the renewal clause of a lease was unenforceable because it did not specify the exact rental amount for the new term or contain a method to determine such rent if the parties could not agree; that the renewal clause did not apply because tardy rent payments placed tenants into default which terminated the lease and resulted in a month-to-month tenancy; that the lease terms were so onerous as to violate public policy and render the lease void ab initio; and that damages were assessed incorrectly. The Court held that (1) the renewal clause was not void for uncertainty or indefiniteness because the minimum monthly rent for the renewed term was stated in the lease and was sufficiently definite to be enforceable; (2) the lease did not terminate due to tardy rent payments because tenants always cured their default; (3) the lease terms were the result of negotiation and did not violate public policy; and (4) the record supported the trial justice's factual findings as to damages, including mitigation.

John K. Kalooski v. Albert - Frankenthal AG and Hanna & Hamann Im-und Export GmbH. No. 99-498 (April 27, 2001)

The plaintiff was injured while working on a folder machine sold by defendant. The trial justice held that in order to exercise personal jurisdiction under the Rhode Island long-arm statute, G.L. 1956 §9-5-33(a), defendant must have had sufficient minimum contacts with Rhode Island. defendant's affidavit stated that the machine in question was not sold directly to plaintiff's employer or to the Co-defendant, but was originally sold to a corporation in Germany The defendant testified that it never advertised, owned any property, maintained an office, or had any employees in the state. The Court held that there was insufficient minimum contacts with Rhode Island to establish in personam jurisdiction.  

Michael Sousa et al v. Town of Coventry et al, No. 00-51 (April 26, 2001)

After previously rejecting the company's application to construct a tower, defendant amended a zoning ordinance to permit construction of the tower. The company then entered into a lease and received a building permit. The plaintiffs did not file their complaint until more than four months after the ordinance was amended. Thus, their arguments challenging the validity of the ordinance were time-barred. The plaintiffs argued that the appeal period for contesting the issuance of the building permit did not begin to run until they became aware of the decision to issue the building permit. The defendant approved the lease of town property for the construction of the telecommunications tower at a public meeting, which was noticed and received press coverage.  Thus, plaintiffs had constructive notice that a building permit would be issued, and they had an obligation to periodically inspect the public records for the issuance of a building permit if they had any interest in objecting to its issuance. The plaintiffs' complaint seeking to challenge the issuance of the building permit was untimely.

Insurance Company of North America v. Kayser-Roth Corporation et al, No. 99-531 (April 24, 2001)

Following a cleaning solvent spill by a tanker truck, the EPA brought suit against defendant for cleanup under the Comprehensive Environmental Response, Compensation, and Liability Act. The defendant argued that it could not be held liable for the cleanup of a site formerly owned by a subsidiary that had been dissolved pursuant to Rhode Island law. The defendant also notified defendant insurer. The trial justice found in favor of the EPA, and defendant unsuccessfully appealed. Thereafter, as part of a larger declaratory judgment, defendant asserted claims against the insurer claiming that it had breached its obligation by failing to provide a defense or indemnify the corporation in the preceding action. The trial justice found in favor of defendant, and the insurer appealed. The Court found that the trial justice's sanction was appropriate under the circumstances in light of defendant insurer's conduct throughout the pretrial period.

State of Rhode Island ex. rel. Town of Middletown v. Alden C. Kinder, No. 00-329 (April 23, 2001)

A police officer observed defendant's vehicle traveling at 65 mph in a posted 25 mph zone. The vehicle swerved into the passing lane without signaling and narrowly missed the front end of another vehicle. The officer pursued defendant's vehicle into another town and arrested defendant. The Court held that the officer's observations were sufficient to pursue defendant across town lines. G.L. 1956 § 12-7-19 provides that an officer who enters another town in close pursuit of a person in order to arrest him or her for a violation of the motor vehicle code has the same authority to arrest and hold the person in custody as members of the municipal peace unit in any city or town.  G.L. 1956 § 31-27-1 provides that any person who operates a motor vehicle recklessly so that the lives or safety of the public might be endangered is guilty of a misdemeanor. The Court held that, based on the totality of the circumstances, the officer had probable cause to arrest defendant for reckless driving.

John Marandola Plumbing & Heating Company v. Delta Mechanical, Inc., No. 98-465 (April 23, 2001)

Heating company and mechanical company both bid on a project to refurbish a school. The mechanical company was the lowest bidder and won the bid, but was later found to have incorrectly calculated the overtime benefits paid to its employees. The heating company sued the mechanical company, alleging that because the mechanical company had violated the prevailing wage law, it was entitled to damages as the next-lowest bidder on the project. The trial justice granted the mechanical company's motion for summary judgment. Upon review, the Court vacated the order granting summary judgment to the mechanical company, and remanded the case for a trial on the merits.  The Court found that a genuine issue of material fact existed about whether the school committee would have rejected the heating company's bid.

Clifford McFarland, Read & Lundy, Inc. v. Michael Brier, et al, No. 99-374 (April 23, 2001)

Supplier had retained corporate accounting firm, owned by accountant. Thereafter, accountant and a former employee of supplier formed a competing corporation and solicited business from supplier's customers. Supplier learned of this and lowered its prices. A restraining order was issued barring defendants from soliciting supplier's customers. The trial justice found that supplier failed to mitigate damages by not raising prices after the restraining order was issued. This reduced the damage award and precluded damages for loss of value of the supplier's stock. The trial justice also found that defendants' conduct did not justify punitive damages and denied judgment against the corporate accounting firm.  The Court reversed the decision of the trial justice, finding that the supplier had mitigated its damages.  Furthermore, the matter was a violation of the Uniform Trade Secrets Act, so the exemplary damages standard in that statute, and not common law, should have been applied. The Court directed an award of punitive damages and attorneys fees. The corporate accounting firm, an alter ego of accountant, was jointly liable.

In re Micaela C., No. 99-43 (April 19, 2001)

The respondent, father, appealed the termination of his parental rights claiming that there was no clear and convincing evidence to support termination. However, the Court found that the record supported the trial justice's findings that DCYF developed numerous case plans and made referrals for respondent to address those issues which led to the child's placement. respondent's refusal to cooperate repeatedly undermined those efforts. The child never resided with respondent and he had never parented her. He did not comply with DCYF's treatment plan or meet its objectives. Given the likely duration of his incarceration for first-degree murder, it was improbable that he would be able to care for or meet the needs of the child for a long period of time. Further, DCYF was not required to make reasonable efforts to reunify respondent and child, as respondent was previously proven to be unfit as to another one of his children.  G.L. 1956 § 15-7-7(a)(2)(iv).    

Landy Paolella v. Radiologic Leasing Associates et al, No. 99-526 (April 18, 2001)

Doctor and partners entered into an agreement to create a partnership. They were also shareholders in the medical practice. When the doctor withdrew from the practice, he was terminated from the partnership. He sued for his share of the partnership. His motion for summary judgment was denied. After additional discovery, he filed a second motion for summary judgment based on a different section of the agreement. The partners tried to introduce an oral agreement changing the terms of the agreement. The second motion was granted, and the evidence was not allowed. The partners appealed. Because the alleged prior oral understanding sought to modify the written agreement, it was barred by the parol-evidence rule. The second motion for summary judgment was based on a different section of the agreement and on different evidence. The law-of-the-case doctrine did not apply.

Carl von Bernuth et al v. Zoning Board of Review of the Town of New Shoreham et al, No. 99-567 (April 17, 2001)

The applicants applied to the Board for a dimensional variance relieving them from setback and lot-size restrictions of a zoning ordinance. The Board granted the application and the trial justice affirmed the Board’s decision. On appeal, the applicant argued that the decision was defective because no legally competent evidence existed in support of the position that the applicants had no reasonable alternative for the enjoyment of the permitted use of the lots without the relief sought and defendant's decision failed to address that statutory requirement. The Court agreed there was no evidence in the record that a hardship existed or that the applicants had no reasonable alternative. Therefore, the Court concluded that in affirming defendant's grant of relief, the trial justice misapplied the law and made findings that were clearly wrong. Accordingly, the Court held the trial justice erred in affirming defendant's decision that did not comply with statutory provisions of G.L. 1956 § 45-24-69(d).

Loretta A. Provost et al v. Dennis Finlay, as Treasurer of the Town of Smithfield, No. 99-549 (April 13, 2001)

The plaintiff filed a complaint under G.L. 1956 § 45-15-8 for injuries she allegedly sustained when she fell into a manhole while walking on a sidewalk in defendant's municipality.  The plaintiff admittedly failed to comply with the 60-day notice of claim requirement of G.L. 1956 § 45-15-9.  The plaintiff contended, however, that the defendant should be estopped from asserting its defense of untimely notice because it had waited almost three years before filing its dismissal motion. Unlike the notice required by G.L. 1956 § 45-15-5, notice pursuant to § 45-15-9 could not be waived voluntarily or involuntarily. Under § 45-15-9, sufficient notice was a jurisdictional prerequisite to bringing suit against a municipality. The purpose of the notice of claim was to give the municipality an opportunity to investigate claims and, if appropriate, to settle them without litigation.

Helen Petrone et al v. The Town of Foster, R.I. by and through its Treasurer et al, No. 99-2 (April 13, 2001)

Appellants purchased some land and then subdivided it into 10 portions without planning board approval. However, the county clerk recorded the deeds. Appellee prevented appellants from selling the lots separately. Appellee subsequently purchased the land at a tax sale. The Court held that the town clerk should not have accepted the deeds for recording because they purported to convey less than the entire tract of contiguous land owned by the grantor without prior approval of the planning board. Moreover, appellants were not entitled to rely on the fact that the town accepted those deeds for recording and then separately taxed the lots since such fact was not conclusive in determining the legality of the subdivision. Finally, appellants had not exhausted their administrative remedies and their claim was not ripe.

Carol Najarian, Executrix of the Estate of Hope L. Anderson v. National Amusements, Inc., et al, No. 99-539 (April 12, 2001)

Decedent was a resident of Rhode Island and attended defendants' movie theater in Massachusetts. In the utter darkness decedent mistakenly thought there was a wall to her left, reached to steady herself on the nonexistent wall, lost her balance, fell, and suffered a broken hip and broken left elbow. The jury returned a verdict finding defendants 40 percent negligent and decedent 60 percent negligent.  The Court applied choice of laws principles and determined that Massachusetts’s comparative negligence statute was the applicable law. In an action for a personal injury, the local law of the state where the injury occurred determined the rights and liabilities of the parties, unless, with respect to the particular issue, some other state had a more significant relationship. 

Barbara Tateosian et al v. Celebrity Cruise Services, Ltd., No. 99-517 (April 12, 2001)

The plaintiff couple purchased two cruise line tickets on defendant's ship. Attached to their ticket was a contract which limited the time to bring a negligence action to one year and selected the forum. After embarking on their cruise, the wife became sick from food poisoning. The plaintiffs did not file their suit until 18 months after the accident.  The trial justice dismissed their action. The Court affirmed the decision of the trial justice finding that the contract gave clear notice of the cruise contract terms because the warnings on the embarkation coupons were sufficiently obvious and were emphatically brought to the plaintiffs' attention. In addition, after receiving notice of the injury, defendant reminded plaintiffs that all rights were reserved including those set out in the cruise ticket contract. Therefore, the contract was fundamentally fair and plaintiffs were bound by its terms.

In re Brandon A., No. 99-129 (April 11, 2001)

The trial justice conducted a hearing on the petition for termination of parental rights. respondent father was personally served; however, he notified the court that he would be unavailable for the hearing because he was incarcerated. respondent was represented at the hearing by a court-appointed attorney when the Family Court entered a default judgment against respondent. respondent appealed contending that the default against him was error because it deprived him of his constitutional right to meaningful participation in the termination hearing that took place during his incarceration out of state.  Therefore, the Court did not reach the merits of the termination of the respondent's parental rights, because the respondent was represented by counsel at the termination hearing.  The entry of a default judgment based on the lack of a personal appearance was clearly erroneous.

State v. David Barrett, No. 97-286 (April 6, 2001)

The defendant, along with two friends, drove to a gas station because he was angry with the attendant who worked there. While there, defendant encountered the attendant's friend, they argued, and defendant shot the friend three times. Two psychiatrists testified that defendant suffered from bipolar disorder and opined that he was not able to appreciate the wrongfulness of his conduct, or to conform his behavior to the requirements of the law, when the crime occurred. The Court held that (1) the jury was allowed to disregard the testimony of defendant's two psychiatrists, and believe the prosecution's one expert witness, in finding defendant guilty of second-degree murder; (2) the trial justice did not commit error when he refused to allow defendant's lay witnesses, who were not present during the shooting, to express their opinion about defendant's mental state; (3) defendant did not acquire the right to ask improper questions on cross-examination, merely because he had not objected when the prosecutor asked similar questions on direct examination; and (4) the trial justice did not err by rejecting defendant's motion for judgment of acquittal, or his motion for a new trial.

Elton Simpson v. State of Rhode Island, No. 99-267 (April 4, 2001)

Petitioner was represented by various lawyers during his rape prosecution. On application for post-conviction relief, he argued that his first two public defenders had an inherent conflict of interest, denying him effective representation in violation of U.S. Const. amend. VI, XIV. While the Court agreed that a conflict of interest was a per se violation of the right to effective counsel, it applied a rule of close case-by-case review, and held that petitioner failed to meet his burden to show that an actual conflict existed. No federal or Rhode Island law established a per se conflict between successive public defenders, and the record in fact reflected that both lawyers did well by an uncooperative client.

In re John F. Lallo, No. 00-515 (April 3, 2001)

A judge pleaded guilty to making false material declarations and the Commission on Judicial Tenure and Discipline (commission) imposed a monetary sanction totaling his salary for the days he was not on the job. The judge claimed the commission lacked authority to impose the sanction and that it was a penalty that entitled him to a jury trial. The Court found that the commission had authority to impose the sanction, and that it was civil and restitutionary in nature. However, the Court found the sanction had been miscalculated and remanded the matter for a more accurate determination that could include prosecution costs. The commission was obliged to file its recommendations for sanctions and a transcript of its proceedings with the Court. Upon doing so, those records became public documents and the citizen action group was entitled to receive a copy.

Anthony Sciacca et al v. Gloria Caruso et al, No. 99-441 (April 2, 2001)

The defendant obtained planning-board approval to subdivide her previously merged lots back to their original dimensions, thereby restoring them to their undersized status. Thereafter, defendant submitted an application to the town's zoning board with respect to the smaller of the two lots seeking a dimensional variance to build a single-family house. The zoning board granted her request for a dimensional variance, which the trial justice affirmed. On appeal, the Court determined the trial justice decision overlooked the self-created hardship rule of G.L. 1956 § 45-24-41(c)(2). Specifically, the Court noted that defendant sought relief from dimensional zoning requirements that became applicable to her substandard lot only because of her earlier illegal subdivision of the property before the planning board. Therefore, the Court concluded that by ignoring these circumstances and refusing to consider defendant's "prior action" in causing the planning board to subdivide her single merged lot back into two undersized lots, the zoning board and the trial justice misapplied state law, respectively, in granting and then in upholding the requested variance.

Loraine A. Kelley v. Cowesett Hills Association, No. 99-419 (March 30, 2001)

The plaintiff filed a complaint against defendant alleging negligence, assault and battery, and deceptive trade practices. The trial justice granted defendant's motion for summary judgment. On appeal, plaintiff argued: (1) the trial justice erroneously reconsidered the original denial of summary judgment on the negligence and deceptive trade practices claims, thus violating the law-of-the-case doctrine; and (2) that because her discovery and concerns about asbestos fell within the statute of limitations, her assault and battery claim was not time barred and should not have been dismissed. The Court was satisfied that no genuine issues of material fact existed for plaintiff's claims. Specifically, the Court found plaintiff could not establish a prima facie case of negligence nor was her claim for assault and battery timely. Additionally, the Court determined plaintiff was not a consumer as contemplated by the Deceptive Trade Practices Act. Finally, the Court concluded plaintiff's inability to come forward with any additional evidence of negligence constituted a sufficient change in circumstances to defeat the law-of-the-case doctrine.

In re Jennifer G., No. 99-488 (March 19, 2001)

Petitioner child welfare agency sought termination of respondent mother's rights pursuant to former G.L. 1956 § 15-7-7(a)(3) after her daughter had spent several years in specialized foster care. respondent challenged the factual support for the trial justice's findings of reunification efforts, parental unfitness, and failure to cooperate with efforts to provide psychiatric care. The Court held that the record provided ample evidence that petitioner repeatedly devised plans, which included treatment of respondent's mental illness, and that respondent refused to cooperate. The untreated illness made respondent unable to function as a parent and made termination in the child's best interests. Finally, under the circumstances, it was permissible to include some of the time during which the child was in petitioner's custody under a temporary rather than a permanent order in calculating whether the child had been in care for the requisite 12 months, where services were offered to respondent throughout.

State v. George R. Lopes, No. 98-12 (March 16, 2001)

The defendant was tried and convicted by a jury of second-degree child sexual molestation. The defendant appealed and asserted that, before his trial began, the trial justice abused his discretion and prejudiced his defense by failing to rule on a state's motion in limine to exclude several of his intended character witnesses and that the trial justice erred in excluding the testimony of those character witnesses. The Court found that the trial justice properly excluded the character witness testimony where the witnesses failed to provide sufficient foundation from which to form an opinion of the defendant's reputation in the community. The Court concluded that the trial justice did not abuse his discretion in excluding the proffered reputation evidence.  Furthermore, there was no record evidence of the trial justice's failure to rule on the state's pretrial motion in limine.

Leo Norton et al v. Russell J. Boyle, No. 99-457 (March 16, 2001)

The defendant was the retired founder of a funeral home. After his retirement he continued to assist at funerals. On one particular day while assisting with a funeral, defendant decided to move the family limousine closer to the grave site but had difficulty putting the limousine into gear and it lurched forward, hitting the car in front of it, creating a chain reaction. The plaintiff, an employee of the funeral home, had his leg pinned between the bumpers of two cars as a result of the accident. The plaintiff received worker's compensation benefits but filed suit against defendant. The defendant alleged that plaintiff could not maintain the action against him because he was an employee of the funeral home. The Court found that the evidence at trial indicated that the funeral home agreed to have defendant act on the funeral home's behalf.  The Court found that defendant possessed the authority to move company vehicles in assisting the funeral proceedings and was an agent of the funeral home when the accident occurred.

Helen Ames et al v. Oceanside Welding and Towing Company, Inc., et al, No. 99-300 (March 16, 2001)

Appellant had been a resident of Appellee’s apartment complex for eight years. She and other residents routinely parked their vehicles along a private driveway. The complex had a long-standing policy that during heavy snow, residents were prohibited from parking their vehicles on the road to give plows or other vehicles access. The policy provided that improperly parked cars would be towed at the owner's expense. After a heavy snow, plaintiff's car was towed from the driveway and she sued for conversion, unfair trade practices, and other torts. The Court affirmed summary judgment for defendants, because the record showed that plaintiff and the other residents had sufficient notice of the parking policy in snowy conditions and, in fact, consented to the consequences of non-compliance.

State v. Carl W. Crocker, No. 98-334 (March 15, 2001)

Following the 1981 arraignment of defendant on criminal charges of sexually assaulting an eight-year-old child, the Superior Court released him from custody on his own personal recognizance. After receiving advance notice, defendant not only failed to show up in 1981 for his scheduled pretrial conference, but also, despite knowing of an outstanding warrant for his arrest, he deliberately stayed away from this jurisdiction for the next sixteen years. When defendant finally was arrested and forced to return to Rhode Island in 1997, defendant asserted that all charges against him should be dismissed because the state had not provided him with a speedy trial because of its negligence in failing to arrest him sooner.  The trial justice denied this motion and a jury convicted defendant on all charges. On appeal, the Court found that defendant's evasive misconduct was not merely negligent, but willful and deliberate. Thus, he was more culpable than the state for causing the delay in his trial. As such, the judgment was affirmed.

Patricia A. Berard v. Ryder Student Transporation Services, Inc., No. 99-260 (March 15, 2001)

After being granted the right to sue by the Rhode Island Commission for Human Rights (commission), plaintiff attempted to file a pro se complaint against defendant, failing to set forth a specific cause of action or a claim upon which relief could be granted. The trial justice ordered plaintiff to file a complaint capable of evaluation and response by defendant. The plaintiff failed to do so, and her case was dismissed. The Court affirmed.  The plaintiff failed to allege the act defendant committed that entitled her to relief, and plaintiff could not rely on her pleadings before the commission to provide defendant with the allegations.  The Court vacated the dismissal order and remanded the case, instructing the trial justice to dismiss the action without prejudice.

Michael Marra v. Joseph McDonald d/b/a Kar Wash King - Power Wash., No. 99-284 (March 15, 2001)

The plaintiff was convicted for possessing hazardous materials.  The plaintiff sought to establish liability and sought contribution from the defendant for the transfer of the hazardous waste.  The plaintiff alleged that the defendant misled him when he took possession of the barrels containing this material.  The plaintiff argued that he was told that these barrels contained dirty water, not hazardous materials.  The trial justice's judgment was affirmed. First, the trial justice acted within its discretion when it excluded the testimony of plaintiff's insurance broker. The trial justice properly found that the witness was not qualified to provide expert testimony on the subject of plaintiff's inability to secure bonding after his conviction, and that the bonding incident described by the witness was too remote in time from the alleged misrepresentation. Next, the trial justice did not err in denying plaintiff a new trial because the evidence was evenly balanced and plaintiff had failed to tip the evidentiary scales in his favor. The trial justice found both stories about evenly credible. Thus, it properly concluded that plaintiff had failed to satisfy his burden of proving his claim by a preponderance of the evidence.

Catherine C. Lagana v. International Brotherhood of Electrical Workers' - Local 1274, No. 99-66 (March 15, 2001)

The plaintiff argued that an action against a union for unfair representation was a separate cause of action under state law that was not precluded or governed by federal law. plaintiff argued that in McDonald v. RI General Council, 505 A.2d 1176 (R.I. 1986) the Court reviewed Section 301 of the Labor Management Relations Act, codified at 29 U.S.C.S. § 185 (1978), (LMRA) and found that G.L. 1956 § 9-1-14 applied. The Court responded that McDonald did not apply here. The employer in McDonald was a municipal employer. As a municipal employee, the plaintiff in McDonald did not have a federal cause of action under LMRA; therefore, the six-month federal statute of limitations was inapplicable. A private-sector employee's action for unfair representation against his or her union was covered by and subject to federal law. This case qualified as a hybrid type of action under LMRA, since the employee's grievance against the employer and defendant necessarily involved interpretation of the collective-bargaining and supplemental agreements. Under federal law, suits by private-sector employees against their unions for alleged unfair representation were governed by the § 160(b) six-month statute of limitations.

Shelby Insurance Company v. Northeast Structures, Inc., No. 99-487 (March 14, 2001)

Appeal from a Superior Court summary judgment in favor of the plaintiff, Shelby Insurance Company.The Court reversed the decision of the trial justice, finding that because there was a question of fact, summary judgment was not appropriate.

Phoenix J. Finnegan, A Rhode Island General Partnership v. L.K. Goodwin Co., Inc., et al. No. 99-403 (March 14, 2001)

Appeal from a Superior Court judgment which denied plaintiff’s petition to foreclose defendants’ right of redemption.The Court affirmed the decision of the trial justice, finding that any interest that was reserved or not conveyed by deed should have been noted in plaintiff’s quitclaim deed.Consequently, all of plaintiff’s interest in the property was extinguished, including the defendants’ right of redemption.Any mistake that plaintiff made by omitting any other amounts due was unilateral and did not invalidate the redemption deed. 

State v. Byron Barber, No. 99-23 (March 14, 2001)

Appeal from a Superior Court adjudication that defendant violated the terms of his probation while he was serving a sentence at the Adult Correctional Institutions.The Court affirmed the decision of the trial justice, finding that the defendant received proper notice of the proceedings against him, and that an individual could have been found to violate his probation while still incarcerated.

In the Matter of John F. Lallo, No. 00-526 (March 14, 2001)

Petition to revoke or suspend the license to practice law in accordance with Article III, Rule 24 of the Court Rules of Disciplinary Procedure.respondent entered a guilty plea to the charge of violating 18 U.S.C. § 1623.The Court held that respondent should be disbarred from the practice of law.In so finding, the Court noted that it has long held that conviction of a felony offense will result in the disbarment of any attorney except in the rarest of cases.The Court found no reason to deviate from this standard in the instant matter.

In the Matter of Joseph A. Cozzolino, No. 01-56 (March 14, 2001)

The Court Disciplinary Board rendered a decision and recommendation that the respondent be suspended from the practice of law.The Court adopted petitioner’s findings that respondent violated Article V, Rules 8.1(b) and 1.3 of the Court Rules of Professional Conduct.The Court also adopted petitioner’s recommendation that the respondent be suspended from the practice of law for sixty days, concluding that the sanction was appropriate in light of the dual purpose of professional discipline to protect the public and maintain the integrity of the profession.

M &  B Realty, Inc. et al v. Pierre Duval et al, No. 99-375 (March 12, 2001)

Cross-appeals from a Superior Court judgment entering summary judgment in favor of the plaintiffs, but denying plaintiffs’ claim for punitive and compensatory damages.The Court reversed the decision of the trial justice, finding that a conflict in the evidence and an issue of material fact remained.

Caroline Barone v. The Christmas Tree Shop, No. 98-525 (March 12, 2001)

Appeal from a Superior Court decision entering judgment as a matter of law in favor of the defendant.The Court agreed with the conclusion of the trial justice, finding that there was a complete absence of evidence upon which the defendant’s negligence could be predicated.

Town of North Kingstown v. Gerry Albert et al, No. 99-211 (March 6, 2001)

Appeal from a Superior Court judgment entered in favor of the defendants.The Court affirmed the decision of the trial justice, finding that excavation to create an irrigation pond was an accessory and essential use of a farm and was allowed under the zoning ordinance and R.I.G.L. 1956 § 2-23.Moreover, the Court held that the excavation project did not constitute a "use" under the zoning ordinance, and thus, was not subject to the ban on earth removal use in rural residential (RR) districts.Finally, the Court found that having taken the erroneous position that the project could not obtain a license under the removal ordinance because it was a forbidden use in an RR district, the town cannot now apply the removal ordinance to the project after it has been completed.

State v. Cornelius Breen, No. 98-41 (February 26, 2001)

Appeal from a Superior Court judgment denying defendant’s motion for judgment of acquittal. The Court affirmed the decision of the trial justice, finding that sufficient evidence existed to support a judgment of conviction for stalking.In addition, the trial justice did not abuse his discretion in admitting evidence of the defendant’s previous conviction.The Court found that the admission of documents relating to the conviction, although erroneous, was harmless error.

Paul E. Romano v. The Retirement Board of the Employees' Retirement System of the State of Rhode Island, No. 99-394 (February 19, 2001)

Appeal from a judgment of the Superior Court, which upheld a decision of the board that suspended the plaintiff’s pension.The Court affirmed that portion of the trial justice’s ruling holding that the doctrine of equitable estoppel did not preclude the board from suspending future retirement payments to the plaintiff.The Court quashed the trial justice’s sua sponte order of restitution because there was insufficient evidence to determine, as a matter of law, whether it was equitable in these circumstances to require restitution.

In re Suebun V. et al, No. 99-472 (February 16, 2001)

Appeal from a decree of the Family Court terminating respondent’s parental rights to her children.The Court affirmed the decision of the trial justice, finding that the Department of Children, Youth and Families (DCYF) established by clear and convincing evidence that the children had been in the care and custody of DCYF for at least twelve months and that there was no substantial probability that the children would be returned to their parents’ care within a reasonable period.The Court concluded that the evidence overwhelmingly supports a finding of parental unfitness.

In re Cody F., No. 00-105 (February 16, 2001)

Appeal from a decree of the Family Court terminating respondent’s parental rights to his son.The Court affirmed the decision of the trial justice, concluding that there is sufficient evidence in the record to support the trial justice’s finding of abandonment and desertion.The Court also rejected respondent’s claim that the Department of Children, Youth and Families failed to make reasonable efforts to establish reunification with respondent’s son, since respondent has never held nor seen since the day of his birth.

State v. Jeffrey Bettencourt, No. 99-476 (February 15, 2001)

Appeal from a Superior Court judgment denying defendant’s motion for reduction of sentence pursuant to Super. R. Crim. P. 35.The Court affirmed the decision of the trial justice, finding that the defendant failed to show that the original sentence was unduly severe or that circumstances have changed so as to require a reduction of sentence.

Joseph W. Salvatore v. State, No. 99-27 (February 15, 2001)

Appeal from a Superior Court judgment denying post-conviction relief. The Court affirmed the decision of the trial justice, finding that from the totality of the evidence, the trial justice did not overlook or misconceive any material evidence, nor was he otherwise clearly wrong.Moreover, the Court found that no evidence of prejudice to the applicant was presented on his application for post-conviction relief.  

State v. David Medina, No. 99-107 (February 15, 2001)

Appeal from a Superior Court judgment granting defendant’s motion to dismiss. The Court reversed, finding that the trial justice was clearly in error in dismissing the information charging the defendant with felony assault and battery.The Court held that the trial justice had no authority under the Superior Court Rules of Criminal Procedure to dismiss a case without allowing the state to proceed with the presentation of evidence in support of its charges.  

In re Jarvis R. et al, No. 99-371 (February 15, 2001)

Appeal from a Family Court judgment terminating respondent’s parental rights to her children.The Court affirmed the decision of the trial justice, concluding that the record supports a finding that the Department of Children, Youth and Families made reasonable efforts to address the problems that led to the children’s removal from the home and to reunify the family.The Court also found that there was no merit to respondent’s argument that the Family Court placed upon her the burden of establishing her mental impairment.Rather, the trial justice merely held that respondent had the burden of going forward with the evidence to give some indication that she was mentally impaired and unable to understand the social services and related case plans that were prepared for her.

State v. Carlo Belloli, No. 99-413 (February 15, 2001)

Appeal from a Superior Court judgment of conviction of first-degree murder and conspiracy.The Court affirmed the convictions, finding that the trial justice did not abuse his discretion in allowing into evidence photographs of the victim, since they were clearly relevant and necessary to the issue of torture and aggravated battery.In addition, the Court found that the state was not required to prove that the victim died while in Rhode Island in order for the trial justice to assume jurisdiction in the prosecution.

State v. Albert Verrecchia, No. 99-458 (February 15, 2001)

Appeal from Superior Court convictions for multiple crimes, including racketeering, burglary, conspiracy, robbery, and receiving stolen goods.The defendant challenged the trial justice’s denials of his motion to suppress evidence, his right to a speedy trial, his motion to sever, and his request for jury instructions on entrapment and duress.The Court reversed in part, holding that the defendant possessed a legitimate expectation of privacy in the garage he rented.Therefore, he was entitled to challenge the search of his garage and the seizure of the guns and other property the police found there.The Court rejected defendant’s other arguments and affirmed his convictions in all other respects.

Bradford Dyeing Associates, Inc. v. J. Stog Tech GmgH., No. 99-440 (February 14, 2001)

Cross-appeals to determine whether a Superior Court trial justice erred in vacating an arbitrator’s award concerning a contract dispute between the two parties to the case.The Court concluded that the trial justice did err in vacating the arbitrator’s award, concluding that the trial justice erred in failing to recognize the clear findings of fact made by the arbitrator. 

Michael Rubino v. Donna Rubino, No. 99-443 (February 12, 2001)

Appeal from a decision of the Family Court granting the parties a divorce and concluding that the rights and liabilities of the parties, pursuant to the divorce, were to be determined by the provisions of G.L. 1956 § 15-5-16.1, the equitable distribution statute, rather than the terms of the antenuptial agreement signed by the parties two days before they were married.The Court reversed the decision of the Family Court with respect to the equitable distribution issue, concluding that the trial justice was clearly wrong in finding as a fact that defendant had abandoned the agreement by accepting an advancement of $5,000.

In the Matter of Robert F. DiPippo, No. 01-58 (February 9, 2001)

The Court Disciplinary Board rendered a decision and recommendation that the respondent be disbarred from the practice of law.The Court adopted petitioner’s findings that respondent violated Article V, Rules 1.15(a), (b) and (d); 1.16(a)(1) and (a)(6); and Rule 8.4(c) of the Court Rules of Professional Conduct.The Court also adopted petitioner’s recommendation that the respondent be disbarred from the practice of law, concluding that respondent’s conduct was intentional and willful and he was no stranger to the disciplinary process.

Marilyn J. Moretti v. Vincent F. Moretti, No. 99-171 (February 9, 2001)

Appeal from a Family Court judgment granting an absolute divorce and providing for the distribution of certain assets.The Court sustained defendant’s appeal concerning the valuation of the goodwill of Tangleridge Landscaping, Inc., finding that the case should be remanded to the Family Court so that enterprise goodwill, as opposed to personal goodwill, may be evaluated and applied to the overall value of Tangleridge, taking into account the risk factor that would be applicable if defendant left the business.The Court affirmed the judgment in all other respects, concluding that the dissipation of assets and the award of alimony arguments raised by the defendant are without merit.

State v. Donald Desire, No. 98-530 (February 9, 2001)

Appeal from a Superior Court order denying defendant’s motion to vacate his plea of nolo contendere.The Court affirmed the decision of the trial justice, finding that since the proper avenue for a claim attacking the voluntariness of a plea is by way of an application for postconviction relief, this appeal is not properly before this court.The Court also found that were the motion proper, the trial justice did not err in denying the requested relief, as the plea was voluntary an intelligently made and is not subject to collateral attack.  

State v. Charles Smith, No. 99-298 (February 8, 2001)

Appeal from a judgment of conviction entered in the Superior Court in which a jury found the defendant guilty of murder in the first degree, committed by means of torture and aggravated battery.The trial justice denied the defendant’s motion for a new trial and sentenced him to a term of life imprisonment without the possibility of parole.The defendant was also sentenced to a consecutive term of fifteen years to serve as a habitual offender.This appeal followed.The Court affirmed the judgment of the Superior Court with regard to the defendant’s conviction and sentence to life imprisonment without the possibility of parole.However, the ruling of the trial justice with respect to the defendant’s habitual status is reversed because the state failed to meet its burden of proof under G.L. 1956 § 12-19-21(b).

Margerty K. Lerner, et al v. Michael A. Ursillo et al, No. 99-460 (February 7, 2001)

Appeal from a Superior Court entry of summary judgment in favor of the defendants.The Court affirmed the decision of the trial justice, finding that the plaintiffs failed to provide the requisite clear and convincing evidence necessary to establish the existence of an oral agreement.

Theodore E. Stebbins, Jr. v. Melinda Blauvelt Wells, et al, No. 99-335 (February 7, 2001)

Appeal from a Superior Court entry of summary judgment in favor of the defendants.The Court reversed the decision of the trial justice, finding that a genuine issue of material fact existed regarding whether the severity of the erosion amounts to a disclosable defect, and that summary judgment was therefore precluded.

Donna Flanagan, Individually and as Parent and Next Friend of Ashley Flanagan v. Conrad Wesselhoeft, M.D., No. 99-121 (February 5, 2001)

Appeal from a Superior Court judgment in favor of the plaintiffs and a cross –appeal challenging the constitutionality of the Rhode Island statute governing the computation of interest in medical malpractice actions.The Court affirmed the decision of the trial justice finding that the evidence relating to the absence of informed consent would have been sufficient to support the jury’s verdict in favor of plaintiffs, and that evidence was more than sufficient to overcome a motion for judgment as a matter of law.The Court also found that since the Attorney General was not served with a copy of the proceeding and was not given an opportunity to be heard at the trial level, the constitutionality issue is not properly before the Court.

Herbert Katz v. Alphonse Mangiarelli, Jr., et al, No. 00-120 (January 30, 2001)

Appeal from a Superior Court summary judgment in favor of the plaintiff.The Court reversed the decision of the trial justice, finding that significant issues of fact existed concerning the final amount of the invoice and the reasons for the plaintiff’s withdrawal as the defendants’ attorney.Therefore, summary judgment was improper.

Richard J. Dyer in His Capacity as Trustee of 19 Blue Beverage Realty Trust v. Ryder Student Transportation Services, Inc., No. 99-384 (January 30, 2001)

Appeal from a Superior Court judgment entered in favor of the plaintiff.The Court affirmed the decision of the trial justice, finding that because the defendant failed to strictly comply with the terms of the renewal provision in the lease, the lease terminated by its own terms onJune 30, 1998 and Ryder became a holdover tenant from that date forward.

In re Craig G., Jr., et al, No. 99-299 (January 30, 2001)

Appeal from a decree of the Family Court terminating the respondent’s parental rights to his children.The Court affirmed the decision of the trial justice, finding that although not required, reasonable efforts at reunification were made in this case and that the finding of abandonment was appropriate and supported by the evidence.

In re Ariel S., No. 99-195 (January 30, 2001)

Appeal from a decree of the Family Court terminating the respondent’s parental rights to his daughter.The Court affirmed the decision of the trial justice, finding that the Department of Children, Youth and Families established a prima facie case of abandonment and desertion that was not rebutted by the respondent.

State v. Jesus Constreras-Cruz, No. 98-533 (January 30, 2001)

Appeal from Superior Court judgments of conviction on counts of burglary and first-degree sexual assault.The Court affirmed the decision of the trial justice, finding that the evidence clearly demonstrated that the defendant had no permission to enter the bedroom but instead entered the victim’s room with the intent to commit a felony therein.Therefore the trial justice did not err in denying the motion for judgment of acquittal.

Lucille M. Couture et al v. Pawtucket Credit Union, No. 99-400 (January 29, 2001)

The Court held that defendant was entitled to summary judgment because defendant's right to set off survived a discharge in bankruptcy. The setoff claim satisfied the requirements of 11 U.S.C. § 553(a), and defendant was not required to file a proof of claim to protect its setoff right from discharge. The defendant acquired a mortgage loan executed by plaintiff.The defendant also maintained four time-deposit accounts held by plaintiff and plaintiff’s parents.Subsequently, plaintiff filed for bankruptcy, and defendant bank froze the time-deposit accounts.Following the discharge, a foreclosure sale resulted in a deficiency and defendant applied the funds in the accounts against the deficiency. 

In re John Oliveira, No. 99-15 (January 29, 2001)

Appellant and his sister attempted to attack the validity of their father’s will.The probate judge ultimately rejected this challenge.Said decision was appealed and later dismissed by the Superior Court as being untimely.On appeal, the Court affirmed the trial justice’s dismissal of the probate appeal since it was untimely.The decision filed by the probate judge equated to a "decree" because it was a judicial act, altered the parties’ respective rights, and ultimately terminated litigation. The decision was signed by the probate judge and duly filed by the town clerk.

In re Crystal C. et al, No. 99-301 (January 29, 2001)

The trial justice held that respondent was unfit pursuant to G.L. 1956 § 15-7-7(a)(2)(iii), and (a)(3).This Court affirmed the trial justice’s order which terminated respondent’s parental rights.  On appeal, the Court rejected respondent’s argument that the DCYF failed to prove by clear and convincing evidence that reunification was unlikely within a reasonable period of time as defined in the statute. The Court also concluded that the record clearly supported the trial justice's finding that termination of respondent's parental rights would be in the best interests of the three children.

State v. James Pelz, No. 98-287 (January 26, 2001)

The defendant was found guilty of failure to pay child support pursuant to G.L 1956 § 11-2-1.1.The Court affirmed the judgment, concluding there was sufficient evidence to establish that probable cause existed to charge defendant under § 11-2-1.1, without including interest in meeting the statutory threshold.The Court also held that the application of § 11-2-1.1, as applied to defendant, did not render it an invalid ex post facto law. The Court also rejected defendant’s argument that the family court abused its discretion in limiting cross-examination.

In the Matter of Vincent A. Indeglia, No. 2000-509 (January 26, 2001)

The respondent was brought before the Disciplinary Board for violations of the Court Rules of Professional Conduct.At the hearing, respondent admitted to violating R.I. Sup. Ct. art. V, R. 1.2(a), 1.4(a), 1.15(a)(b), 8.4(c). After respondent offered mitigation testimony, the board recommended the appropriate disciplinary sanction to impose was a 90-day suspension from the practice of law.The Court adopted the recommendation of the board, and suspended respondent from the practice of law for 90 days even after a determination that respondent admitted to his wrong, repaid his client, and fully cooperated with the Board. 

State v. Daniel M. Ilacqua, No. 99-433 (January 24, 2001)

The defendant pled nolo contendere to two charges of receiving stolen goods and conspiracy.defendant received a five-year suspended sentence, with probation. Two years later, defendant was charged with possession with intent to deliver a controlled substance. He was held without bail on both the new charge and as an alleged probation violator. The defendant received a 170 day credit for the time he had been held without bail pending a hearing on the violation of his probationary sentence; however, the 170-day credit was not applied to the six-month consecutive sentence he received on the crimes charged in the second information. The Court denied and dismissed defendant's appeal and affirmed the judgment of the Superior Court.The Court rejected defendant’s argument on appeal that he was entitled to 340 days credit for time served and held that defendant could not apply his 170 day credit to each charge pending against him.

Charles T. Francis V. Buttonwoods Realty Co., No. 99-92 & No. 99-95 (January 24, 2001)

The petitioners contracted to purchase two parcels held for sale by respondent, who was the receiver for an insolvent realtor.Large tax liabilities accrued to the town during hazardous waste clean-up of the properties.The petitioners sought to obtain a tax abatement. Subsequently, the contracts received court approval, and the tax abatement was denied. The petitioners, thereafter, announced that they waived their insistence on a tax abatement and sought to enforce their contracts. The Court held that despite respondent's fiduciary duties as a receiver, he was also bound by court-approved contracts. Since some benefit would flow to petitioners from the possible condition precedent requiring tax abatement, petitioners were entitled to waive it, and the trial justice erred in denying them the benefit of their bargain.

R & R Association et al v. City of Providence Water Supply Board, et al v. State of Rhode Island, No. 99-153 (January 23, 2001)

The plaintiffs were class representatives of the present-day successors in interest to certain persons who, in 1922, held land and water rights that were appurtenant to nine separate mill sites that abutted the north branch of the PawtuxetRiver. In 1922, a contract was formed whereby defendant city would compensate the mills for taking their riparian rights. The Court held that 1915 R.I. Pub. Laws ch. 1278, § 6 authorized defendant city to acquire absolutely by condemnation the waters of the river and its tributaries, or any part or parts thereof.It was also determined that the statute authorized defendant city to sell water to communities not mentioned in the original 1915 act. The Court held the 1922 contract limited any remaining water rights principally to the requirement that defendant maintain a specific minimum flow of water on the PawtuxetRiver. The defendants retained a statutory obligation to determine whether any such surplus would be discharged into the north branch of the PawtuxetRiver.

Progressive Casualty Insurance Company v. Narragansett Auto Sales, No. 99-271 (January 19, 2001)

The victim of a motor vehicle accident filed suit alleging bodily injury and property damage. plaintiff filed an action seeking a declaratory judgment that plaintiff had no duty to indemnify the defendant. The trial justice granted plaintiff's summary judgment motion, after finding that the policy in question did not provide coverage because the tortfeasor lacked consent to utilize plaintiff's dealer license plates. On appeal, defendant argued that plaintiff was required to defend the suit based on the "pleadings test."The Court vacated the summary judgment order and held that plaintiff was required to defend irrespective of the defendant's ultimate liability to the victim because defendant satisfied the "pleadings test" by reciting facts which brought the injury within the coverage of the policy.

Joanne S. Ohms v. State of Rhode Island Department of Transporation et al, No. 99-187 (January 19, 2001)

The defendant leased a motorized moped to plaintiff.The plaintiff was involved in an accident and suffered personal injuries.The plaintiff filed a negligence action based on a failure to warn of known hazardous road conditions. The trial justice held that defendant did not have a duty to warn lessees of its vehicles about dangerous conditions that existed on public roads. Accordingly, the trial justice granted defendant’s summary judgment motion. The Court affirmed and held that the warning given to plaintiff in the lease agreement was adequate to apprise plaintiff of the roadway dangers that she might encounter.As such, defendant lessor did not owe any duty to lessee.

Arthur J. DeBlois, Jr., et al v. R. Gary Clark in his capacity as Tax Administrator, No. 98-336 (January 19, 2001)

The petitioners owned a small condominium in Rhode Island but spent the majority of their time at a separate residence in Florida. The respondent, Rhode Island Tax Administrator, assessed income tax deficiencies assessed The petitioners after they filed nonresident returns. The Court held that pursuant to G.L. 1956 § 8-8-28, petitioners sustained their burden of proof in proving by a preponderance of the evidence that they changed their domicile.The Court also held that strict requirements for the content of tax deficiency notices are required pursuant to G.L. 1956 § 44-30-81, as well as Rhode Island case law.The Court found that the notices received by petitioners were ambiguous and potentially misleading.

In Re Bryce T., No. 00-95 (January 12, 2001)

The petitioner sought to terminate respondent's parental rights based on respondent's chronic substance abuse. The respondent discharged her appointed counsel on the day of trial.The trial justice advised against such action and clearly explained to respondent that she would be proceeding pro se. The petition to terminate respondent's parental rights was granted and respondent appealed claiming that it was error for the trial justice to not appoint substitute counsel.The Court affirmed and held that the trial justice was under no duty to appoint substitute counsel.The Court found that the trial justice clearly explained the ramifications of discharging counsel.The Court also found no evidence that the appointed counsel was ineffectively representing respondent.

Pezzucco Construction v. Melrose Associates, L.P., No. 99-346 (January 12, 2001)

The plaintiff entered into a subcontract to perform exterior rehabilitation work on 10 different properties. The plaintiff stopped working on the project and terminated the contract after failing to receive payment for work performed. The plaintiff then recorded notices of intention to file mechanic’s liens.Exactly 120 days after said recordation, plaintiff filed a motion to enforce the liens and mailed 10 notices of lis pendens to the recorder of deeds. Said notices were recorded in the land evidence records three days later. The trial justice thereafter entered for plaintiff, and enforced the liens. Subsequently, judgment was vacated. The Court held that plaintiff’s liens were void because the notices of intention were not sent by certified mail, and the notices of lis pendens were recorded in the land evidence records three days after the 120-day statutory limit.

Michael A. Brennan v. George A. Vose, Jr., et al, No. 98-300 (January 12, 2001)

Appellant sought post-conviction relief after being sentenced to life in prison for felony murder. Appellant’s pray for relief was denied and he appealed.The Court affirmed and found that the trial justice had sufficient evidence to find that appellant was fully aware of his right to testify on his own behalf.The Court also found that trial counsel for Appellant was adequately prepared and Appellant’s decision not to testify was voluntary and made without any improper influence. Further, there was no support for the proposition that newly discovered evidence was undiscovered at trial.

Women's Development Corporation, et al, v. City of Central Falls, No. 98-207; 99-87; 99-293 (January 11, 2001)

The plaintiffs filed suit against defendant for breach of contract and defendant counterclaimed alleging breach of contract and fraud. The trial justice dismissed plaintiffs' breach of contract claim, assessed attorney's fees against plaintiffs and also dismissed defendant’s fraud claim.The Court reversed the dismissal of plaintiffs’ breach of contract claim after finding evidence of substantial performance. As such, the Court vacated the trial justice’s award of attorney’s fees.The Court also held that the trial justice erred in granting judgment for plaintiffs on defendant’s fraud claim because factual questions were unresolved.The trial justice's refusal to grant plaintiffs' Super. Ct. R. Civ. P. 9(b) motion was not reversible error in light of evidence adduced at trial.

State v. Alfred J. Veltri, No. 99-453 (January 11, 2001)

The defendant was arrested, charged, and instructed of his right to call an attorney via a pay telephone.The defendant declined to make a phone call.The defendant was subsequently convicted of the charges. The trial justice vacated the verdict and dismissed the charges after finding that defendant did not receive his free telephone call. The Court granted certiorari, vacated the dismissal, and reinstated defendant’s conviction finding that the defendant waived any right to challenge the failure to provide him with access to a free telephone call by failing to do so before or during his trial. The Court also found that defendant was not substantially prejudiced.

State v. Lewis E. Elliott, No. 99-164 (January 10, 2001)

The defendant appealed his sexual assault conviction arguing that the admission of certain uncharged sexual misconduct evidence was improper hearsay.The Court affirmed finding that the trial justice was correct in ruling that the defense had "opened the door" during cross-examination. The Court also held that the state was properly allowed to conduct a redirect examination of defendant's wife concerning her knowledge of the prior investigation because no hearsay objection was raised by defendant.Also, the trial justice properly gave a limiting instruction prior to closing arguments that the testimony could be used to show a pattern, design, scheme, plan, an intent, or a mode of operation of defendant. 

State v. Glenn A. Reed, No. 99-418 (January 9, 2001)

The trial justice granted defendant’s motion to dismiss after finding a lack of probable cause with regard to the charge of intent to deliver a controlled substance.  The Court reversed and held that, pursuant to G.L. 1956 § 12-12-1.9, the trial justice is required to examine the information and exhibits when making a probable cause determination under Super. Ct. R. Crim. P. 9.1. The Court held that the trial justice failed to consider the evidence in the information package, relating to confidential informants, which supported the inference of defendant's intent to sell cocaine.

Ronald Gossett et al v. Susan Reid, No. 99-233 (January 9, 2001)

The plaintiff husband was injured when a stone fell from a wall on the premises which he and his wife rented from defendant.The trial justice granted plaintiffs eight separate continuances.The plaintiff husband also failed to comply with a court order requiring him to submit to a videotaped deposition.The defendant moved to dismiss for failure to comply with said court order.The trial justice granted defendant’s motion to dismiss.The Court affirmed finding that, in light of the equities involved, the trial justice properly dismissed the case since it had been pending for more than five years.

Ronald Harvey et al v. Town of Tiverton et al, No. 99-63 (January 9, 2001)

The plaintiffs were successful in their attempt to secure building permits and a liquor license needed to operate a banquet facility.Nonetheless, plaintiffs filed suit alleging that defendants had colluded to block plaintiffs from acquiring the necessary permits. The trial justice dismissed the complaint and the Court affirmed.The Court found that the defendants were prejudiced by difficulty of locating certain other defendants due to the length of inactivity which exceeded the statutory five-year period.

William D. Ankner et al v. Stephen Napolitano et al, No. 00-148 (January 8, 2001)

Appellant, the State, and Appellee were all parties to condemnation litigation.Appellant conveyed to Appellee a parcel of land.As consideration, Appellee agreed to credit Appellant as having paid its 50 percent share of a previous condemnation award. Appellant was also obligated to pay, on behalf of the City of Providence, the other 50 percent share. The trial justice determined that the credit agreement between Appellee and Appellant did not pertain to the judgment interest which had accrued by the final award.The trial justice also refused to correct an error in the interest rate calculations. On appeal, the Court held that Appellee had long benefited from the property transfer and therefore, under equitable principles, had been fully compensated for Appellant's share of the final award, principal and interest. The Court also held that the trial justice erred in not correcting an error in interest rate calculations through the use of a variable treasury-bill interest rate prescribed by statute.

Thomas S. Michalopoulos v. C & D Restaurant, Inc., d/b/a "Eddie and Conrad's Fine Foods", No. 99-222 (January 8, 2001)

The plaintiff was injured when the stairs at defendant's premises went out from under him. The plaintiff sued. The jury found plaintiff 80 percent negligent. The trial justice then granted plaintiff's motions for a new trial and for additur, and reapportioned the comparative negligence of the parties to find plaintiff 40 percent negligent. The trial justice did not err in allowing expert opinion that the stairs were moveable and others had used them in the same manner as plaintiff. The trial justice did not err in denying defendant's motion for judgment as a matter of law because of the questions raised by the expert testimony. Although the Court approved the use of an additur to correct the jury's misapportionment of liability, the trial justice erred in not allowing defendant an opportunity to assent to it.

Robert Testa v. Norfolk and Dedham Mutual Fire Insurance Company, No. 99-243 (January 8, 2001)

The plaintiff obtained car insurance from an insurer. His policy was later transferred to defendant insurer. The plaintiff's car was stolen. The defendant insurer denied plaintiff’s insurance claim based on alleged misrepresentations in the insurance application. Specifically, plaintiff’s care was garaged in a state other than that listed in the insurance policy. The trial justice awarded damages to plaintiff.On appeal, the Court held that plaintiff was never asked where the car was to be garaged when the policy was transferred and as such no misrepresentation was ever made. The Court also noted that the original insurance application was silent as to this issue. 

State v. Marc Gomes, No. 00-42 (January 8, 2001)

The defendant was convicted of first degree murder and carrying a pistol without a license.At trial, the arresting officer was permitted to testify as to the description of defendant that was broadcast over the police radio based upon an eyewitness account.The Court affirmed.The Court found that the officer’s testimony was not objectionable hearsay because it was not offered to prove defendant's guilt.The Court held that the officer had probable cause to detain, arrest, and search defendant for weapons and therefore the officer's testimony about the description at trial was necessary to show why he apprehended defendant. The Court also held defendant did not properly preserve his objection as to testimony given by his former cellmate. 

In re Maya C. et al, No. 99-26 (January 8, 2001)

The respondent appealed from a termination of parental rights.The Court denied the appeal and affirmed the lower court’s termination.The Court found that the record revealed respondent had a ten to fifteen year history of chronic substance abuse.The trial justice did not overlook any relevant or material evidence, and properly admitted testimony from respondent’s mother regarding the substance abuse.The Court found that the decision of the trial justice was supported by clear and convincing evidence, in light of respondent's substance abuse history, living environment, and repeated relapses.

Rhode Island Depositors Economic Protection Corporation v. Bowen Court Associates et al, No. 99-532 (January 5, 2000)

The defendant and a credit union signed a note to finance defendant's real estate project. The credit union closed and was placed into receivership. The defendant ceased making payments on the note, claiming damages for credit union's failure to provide more financing that had been previously agreed upon. The plaintiff corporation, legislatively created to protect the depositors of various failed financial institutions, acquired credit union's assets and the note from the receiver. Pursuant to G.L. (1956) § 42-116-6(b), plaintiff was only liable for such obligations of those institutions as it agreed to accept. Since plaintiff had not agreed to be liable for defendant’s claim against the credit union, defendant could not assert its recoupment defense because recoupment was not a " real defense. 

Jose A. Cabral et al v. George DuPont, No. 99-207 (January 5, 2001)

The plaintiffs agreed to buy a home from defendant. The plaintiffs agreed to deposit $ 16,000 of the purchase price in a separate joint interest bearing checking account. The defendant was to get the money if plaintiffs received permits to enlarge the home to three bedrooms. The defendant got a check for $ 16,000 after closing the sale. The Court affirmed trial justice’s findings that defendant forged plaintiff's endorsement, deposited the check into defendant's bank account, and breached the agreement. Based on G.L. 1956 9-21-10(a) (1956), the Court reversed the pre-judgment interest award to allow plaintiffs only the interest accrued while the money was in the interest bearing account.

State v. John R. Rieger, No. 98-322 (January 5, 2001)

The defendant was convicted of assault with a dangerous weapon. The Court held that trial justice properly denied motions for new trial and the alternative motion for judgment of acquittal in light of other evidence that inculpated defendant. In the justice's eyes a reasonable juror would have been justified in finding defendant guilty beyond a reasonable doubt. The Court also determined that the admissions of testimony by police expressing an opinion on defendant’s truthfulness and testimony by the state medical examiner concerning ballistics were not properly preserved for appeal since defense counsel’s objection to one of the three questions on the issue was merely a general one. 

Cadillac Lounge, LLC v. City of Providence, No. 99-407 (January 4, 2001)

The petitioner applied for and was granted an alcohol beverage license and an adult entertainment license by respondent, the Providence Board of Licenses. The proposed adult entertainment would be located in a M-1 zoning district where adult entertainment is a permitted use. Local residents appealed, and the licenses were revoked. The issue was remanded for a new hearing before the board where the petitions were denied. The Court quashed the board’s decision and determined that even though cities have power to deny or revoke licenses, that power is limited to licenses for activities or locations that present danger to the public health or safety. Since the board’s decision rested on other reasons, it was arbitrary and capricious and exceeded the board’s jurisdiction. 

State v. Steven R. Salvatore, No. 98-175 (January 4, 2001)

The defendant was charged with filing a false document after failing to disclose all required information to bank regulators upon entering into a joint banking venture. The defendant promised a loan for equipment leases as long as he received a one percent fee. The defendant was charged with bribery after keeping the money for himself. The trial justice properly denied defendant's motion for judgment of acquittal because defendant was properly convicted of solicitation or acceptance of a bribe. Additionally, defendant was properly convicted of fraud because defendant knew that statement was false and intended to mislead the accounting firm and the bank's regulators.

State v. John R. Pacheco, Jr., No. 2000-6 (January 3, 2001)

The defendant was convicted of one count of first-degree murder and one count of conspiracy to commit murder. The defendant was sentenced to life imprisonment plus 10 years for the two crimes. The Court affirmed the sentence. It was harmless error to admit the prosecution witness's testimony about statements made by defendant's coconspirator. It was not an abuse of discretion to deny defendant's motion to pass the case and declare a mistrial. The defendant's challenge as to the sufficiency of the jury instructions on statements made in furtherance of a conspiracy was not preserved for appeal. The state was not barred, by the doctrine of collateral estoppel, from seeking a life sentence without parole. 

In re Alicia S., No. 99-71 (December 26, 2000)

The petitioner DCYF obtained custody of respondent's child. At the hearing on termination of respondent's parental rights, she consented to her child being adopted. No reference was made at the hearing to an alleged oral visitation agreement between the adopting parents and respondent. The trial justice denied respondent's motion to enforce the visitation agreement, holding that her parental rights, including visitation, terminated when the adoption was granted. The Court affirmed and held that G.L. 1956 § 15-7-14, which grants certain visitation rights to biological parents, was irrelevant, because the statute was enacted after the adoption and was not applied retroactively. Because the law in effect at the time of the adoption denied visitation rights to birth parents of adopted children, the trial justice's order was correct.

In re Russell S., No. 98-367 (December 26, 2000)

Appeal from the trial justice’s decree terminating the petitioner’s parental rights to her son because of her longstanding drug addictions and history of mental disorders.  The Court initially held that the state was required to prove by clear and convincing evidence that a parent is unfit before permanently severing parental rights in her natural children.The Court noted that once a parent had been adjudicated unfit, the balance shifted so that the best interests of the child outweighed all other considerations. The Court then reviewed petitioner's history of drug abuse, mental illness, and her unsuccessful attempts at rehabilitation and reunification with her son. The court affirmed the trial justice’s decree, finding that the state had presented clear and convincing evidence that the petitioner was unfit.

Hedco, Ltd v. Gwendolyn Blanchette, No. 98-510 (December 26, 2000)

Appeal from trial justice’s order dismissing the plaintiff’s trespass and ejectment action.The Court found that even though the plaintiff Landlord's termination of its lease with defendant Tenant substantially complied with G.L. 1956 § 34-18-56, a landlord seeking to evict a tenant occupying United States Department of Housing and Urban Development subsidized property must send a termination notice that complies with 24 C.F.R. § 247.4(a)(1), which requires that the notice to terminate tenancy state a specific date of termination.The Court found that although the termination notice complied with G.L. 1956 § 34-18-35 and used most of the precise language suggested in G.L. 1956 § 34-18-56, it did not meet the higher standard required for federally subsidized housing because the exact date for termination was not explicitly stated.

Gooding Realtly Corporation v. Bristol Bay CVS, Inc., No. 99-514 (December 26, 2000)

The defendant’s petition for certiorari granted from the Superior Court’s dismissal of an appeal from a District Court judgment in a trespass and ejectment case.The defendant vacated the commercial property it leased from the plaintiff prior to the expiration of the lease but continued to pay rent and maintain the property until the lease actually expired.The plaintiff thereafter alleged that the defendant was a holdover tenant because it had retained the keys to the premises. The trial justice found that plaintiff was entitled to possession and that the defendant was liable for holdover rent.The Superior Court summarily dismissed the defendant’s appeal because of its failure to comply with the bond requirements of G.L. 1956 § 34-18.1-18 for payment of future rent.The Court held that G.L. 1956 § 34-18.1-18 was inapplicable because possession of the property was not an issue.The court remanded the case to the Superior Court with directions to grant a trial on the merits.

State v. David Bettencourt, No.99-445 (December 22, 2000)

The defendant first appealed his conviction for second degree sexual assault, arguing that the trial justice should have granted his motion for a new trial in light of his statement that he did not believe the testimony of a police officer who had testified that the defendant had knowingly, intelligently, and voluntarily waived his constitutional rights before confessing to the crime.The court had remanded the case for a determination of whether the confession was properly admitted into evidence, and, if not, whether this error was harmless beyond a reasonable doubt.On remand the trial justice found the confession had not properly been admitted but that its admission was harmless error.The court reversed and remanded to the Superior Court for a new trial, finding that the admission of the defendant's statement may have bolstered the credibility of the testimony of the victim and her mother to the extent that it contributed to his conviction.

Patricia L. Poudrier v. Brown University, No. 99-285 (December 20, 2000)

Writ of certiorari granted from a decision of the Appellate Division of the Workers’ Compensation Court affirming the trial justice’s denial of the plaintiff’s petition for workers' compensation benefits from the defendant employer.The trial justice had denied her motion for an independent medical examiner to be appointed under G.L. 1956 § 28-34-5.Her petition for benefits was then denied. The Court quashed the order affirming the denial of benefits and remanded the case to the Workers’ Compensation Court because the statute did not allow the trial justice any discretion with respect to whether an impartial medical examiner would be appointed in cases in which the alleged disability was the result of an occupational disease or condition.

 State v. Lisa A. DiStefano, No. 99-119 (December 20, 2000)

On certification from the Superior Court, the Court determined that G.L. 1956 § 31-27-2(c) precludes, for violations of G.L. 1956 § 31-27-2.2 (driving under the influence, death resulting), admission of results of breathalyzer, blood, or urine tests at trial when the samples are seized without the defendant's consent.The court held that the statutory language "none shall be given" is plain and unambiguous and becomes operative after the suspect refuses a chemical test.Furthermore, upon such a refusal, a test should not be given with or without a warrant to "any person who operated a motor vehicle within this state,"pursuant to G.L. 1956 § 31-27-2.1(a).The Court recognized that the legislature delineated the scope of the District Court’s and Superior Court’s warrant authority and those courts have no inherent power to issue a search warrant but, rather, can only exercise those powers that are conferred by statute.

Casa DiMario, Inc. v. Kenneth Richardson et al; Case DiMario, Inc. v. Leo Fox et al, Nos. 99-84, 99-162 (December 18, 2000)

Consolidated appeals concerning the legality of a municipal ban on nude barroom dancing.The Court held that the trial justice properly vacated the consent order between the plaintiff and the defendant’s town solicitor because the solicitor did not have actual or apparent authority to compromise the pending claims involving the plaintiff's establishment on the terms set forth in the order.  The Court found that the town officials’ assurances to the plaintiff that its establishments would have been " grandfathered" against the town’s anti-nudity ordinances was insufficient as a matter of law to estopp the defendant from vacating the settlement or enforcing the anti-nudity ordinances against the plaintiff.   The Court held that the 1997 amendment to G.L. § 3-7-7.3 did not limit defendant’s power in this respect.Therefore, the defendant did have authority to impose anti-nudity ordinances, as they were valid codifications of its preexisting power to do so.  Furthermore, the ordinances were not overbroad and thus not a free speech violation.

State v. Stephen M. Mulcahey, No. 99-204 (December 18, 2000)

The defendant’s appeal from a conviction of third degree sexual assault for engaging in sexual intercourse with his fifteen-year-old girlfriend one month before her sixteenth birthday.The Court held that the trial justice did not err in denying the defendant’s motion in limine to exclude the State’s evidence that the defendant’s girlfriend had engaged in an uncharged act of oral sex with him a few months before the charged misconduct occurred and that the defendant had told one of his friends about it.The court found that it is within the trial justice’s discretion to rule on the admission of evidence of uncharged sexual misconduct.  Furthermore, under the "lewd disposition" rule, an uncharged sexual act was probative of the defendant’s lack of regard for his girlfriend’s underage status.

Metro Properties, Inc. v. Edward Yatsko et al, No. 99-353 (December 18, 2000)

The plaintiff’s appeal from a summary judgment in favor of the defendants and an award of attorney fees.The Court affirmed in part because, under G.L. 1956 § 9-1-4(6), an agreement to receive a real estate commission has to be in writing.In any event, it did not appear that the plaintiff was a procuring cause for the tenant’s purchase of the property.The Court reversed the award of attorney fees because before trial an arbitration panel had merely found that the plaintiff's complaint was nonarbitrable.

Belliveau Building Corporation v. William J. O'Coin, et al, No. 98-445 (December 18, 2000)

The defendants’ appeal from a nonjury trial judgment that they tortiously interfered with the plaintiff’s contract to sell real estate. The plaintiff also cross-appeals, challenging the trial justice’s refusal to award punitive damages and its preclusion on res judicata grounds of its attack on the propriety of the defendants’ filing of a first notice in the land evidence records concerning their right of first refusal.The Court sustained the defendants’ appeal and denied the plaintiff’s cross-appeal.A restriction on one of the subject lots gave the defendants a preemptive right of first refusal in the event the plaintiff couple later sought to sell or lease lot three.The couple, who served as the sole officers and shareholders of plaintiff corporation, conveyed that lot to the plaintiff without giving the defendants any opportunity to exercise their right of first refusal.The court found that the defendants’ conduct constituted justified interference with the plaintiff-third party contract given their right of first refusal and their objectively colorable belief that first conveyance of the lot between the couple and plaintiff had triggered the right of first refusal.

Margaret P. Hiltonv . Vincent Fraioli, d/b/a Edgewood Associates, No. 99-132 (December 14, 2000)

The defendant’s motion for a new trial. The defendant employed the plaintiff in his real estate agency under a one-year contract.The plaintiff sued after the defendant stopped paying his salary.The trial justice entered judgment for plaintiff, having found that the defendant breached the contract. The court affirmed, holding that the trial justice did not err in finding that the contract was unambiguous and clearly provided for a one-year guarantee of employment based upon its language stating the agreement was for one year from the time of signatures. The Court found that the trial justice properly denied the defendant’s motion because even though the agency encountered start-up difficulties that was insufficient evidence to show that the plaintiff was incompetent.

Town of North Providence v. Local 2334 International Association of Fire Fighters, AFL-CIO, No. 99-52 (December 15, 2000)

The defendant city’s motion to vacate an arbitrator’s award.plaintiff firefighter's union filed grievance against the defendant based on the city’s failure to include holiday pay when calculating longevity compensation.The defendant asserted that it had never included holiday pay in that calculation, and thus had not violated the agreement.The arbitrator found that the parties, by past practice, had misinterpreted the collective bargaining agreement and that gross pay as set forth therein should include holiday pay in so far as longevity was concerned.The trial justice denied the motion to vacate.On appeal, the court affirmed the order, reasoning that the award was passably plausible because it was consistent with the agreement, which provided that longevity compensation for firefighters with eight or more years of service would be calculated based on gross pay.

Global Waste Recycling, Inc. v. Henry Mallette, Jr., et al, No. 98-597 (December 14, 2000)

The plaintiff initiated a civil action for defamation against the defendant neighbors, claiming that its construction and demolition recycling business and reputation had been destroyed by the publication of defendant statements in the newspaper that the plaintiff was burning lead and asbestos on the property. The Court found that the plaintiff’s suit was barred pursuant to the express immunity provisions of G.L. 1956 § 9-33-2(a) because the defendants’ statements were neither objectively sham, nor actionable in light of the immunity protection afforded those statements by virtue of the Limits on Strategic Litigation Against Public Participation, G.L. 1956 § 9-33-2 (Anti-SLAPP statute).

Rhode Island Insurers' Insolvency Fund v. Leviton Manufacturing Company, Inc., No. 99-410 (December 13, 2000)

The plaintiff’s motion for summary judgment.The defendant delayed discovery for years, at one point seeking to rescind all its admissions, and its sole response to plaintiff’s summary judgment motion was an employee’s affidavit stating his opinion that the plaintiff was too liberal in paying claims.The Court found this affidavit, offered as lay opinion testimony, was inadequate to rebut the plaintiff’s motion, and that the defendant’s discovery misconduct justified the trial justice in exercising its discretion to award attorneys’ fees. However, the Court determined that prejudgment interest could only have been awarded in actions for damages, while the case was a statutory action for reimbursement.

In the Matter of John A. Scungio, No. 2000-414 (December 12, 2000)

A criminal information was filed in a federal district court charging the respondent attorney with making materially false statements and representations to special agents of the FBI.The respondent entered a guilty plea to the federal charges.The disciplinary council filed a petition to revoke or suspend the respondent’s license to practice law.The court found that lying to federal agents violated R.I. Sup. Ct.art. V, R. 8(b) and that delivering a bribe to a public official on behalf of his clients violated R.I. Sup. Ct. art. V, R. 8.4(d).The Court determined that the respondent’s misconduct demanded the imposition of the harshest sanction available.

Anita B. Logan v. Jeffrey S. Logan, No. 99-134 (December 12, 2000)

Appellant husband’s motion to modify child custody was denied by the trial justice.The court denied and dismissed the appeal and affirmed the trial justice’s judgment because before a final custody decree could be amended, the movant has to establish that the conditions or circumstances existing at the time of the decree had so changed that the decree should be modified in the interest of the child’s welfare.The court found that the Appellant failed to prove a sufficient change in circumstances, because neither the child’s increase in age nor appellee’s living with her then-fiancé were sufficient to require modification of the earlier custody award.

State v. Russell S. Allessio, No. 98-532 (December 11, 2000)

The defendant’s appeal from a conviction, claiming that the jury’s verdict of not guilty on two counts of first-degree child molestation was inconsistent with its return of a guilty verdict on the charge of second-degree child molestation. The Court found that the victim’s testimony plainly supported the jury’s verdict and that the defendant was not prejudiced by the 11th-hour disclosure of relatively inconsequential charges. The trial justice did not abuse his discretion in permitting the state to supplement its discovery in this manner before the defendant presented his case.

In re Nathan F. et al, No. 99-302 (December 11, 2000)

The respondents’ appeal from a family court decree terminating their parental rights.  The court affirmed the judgment, holding that the family court’s findings, which were based upon the testimony of the respondent mother and social workers employed by the petitioner, reports from rehabilitation centers, and evidence of domestic violence by respondent father, supported the trial justice’s conclusion that both respondents were unfit by reason of conduct or conditions seriously detrimental to their children.

In re Delicia B. et al, No. 99-470 (December 11, 2000) (corrected)

The respondent appealed the termination of her parental rights, arguing that the trial justice erred in finding her to be an unfit parent and that her children had not been formally committed to the DCYF for the full 12-month period before termination petitions were filed.The Court affirmed, finding that G.L. 1956 § 15-7-7(a)(3) only required that a child have been placed in the legal custody or care of DCYF for at least 12 months.Under the respondent’s supervision, the children missed or postponed vital medical appointments, they were hungry, unclothed, dirty, and lacked adequate housing and other basic necessities.

Ferandinho P. Gomes v. Mossberg Industries, Inc., No. 98-580 (December 11, 2000)

The plaintiff’s appeal from the trial justice’s granting of the defendant’s motion for judgment as a matter of law on a product’s liability suit.At trial, plaintiff presented a number of witnesses seeking to establish the defendant's liability, but all of them were unable to conclude that the defendant manufactured the machinery in question.Then, the plaintiff attempted to qualify an expert witness in civil engineering.The trial justice refused to qualify the expert witness because he admitted he was unfamiliar with the manufacture and design of industrial machinery and had done nothing to prepare for trial.The Court affirmed, holding that the plaintiff had sued the wrong party and no facts could establish the defendant’s liability.

In re Robert S. et al, No. 99-18 (December 11, 2000)

The petitioner DCYF removed two children of the respondent father from the home of their mother and placed them with their maternal grandmother. The petitioner subsequently placed the children with the respondent’s mother. The petitioner requested the Court to declare the children neglected, and then amended the petition to have the children declared "dependent" under G.L. 1956 § 14-1-3(6).The family court declared them dependent.The Court affirmed because even though lack of housing and need for parental aid services were not explicitly articulated in § 14-1-3(6), they were encompassed under the term "dependent," and also the family court’s findings were supported by substantial evidence.

Bechtel Corporation v. Leonard Ponte, No. 99-188 (December 4, 2000)

Employer’s petition for certiorari seeking review of a final decree of the Appellate Division of the Workers’ Compensation Court, which reversed a trial justice’s grant of a request to set an earnings capacity.The Court affirmed the decree of the Appellate Division and denied the employer’s petition for certiorari, finding that the court correctly concluded that the respondent's seven percent impairment did not reasonably establish his earnings capacity.The Court further held that although G.L. 1956 § 28-29-2(3)(i) permitted the trial justice, in his or her discretion, to consider an employee’s efforts in seeking employment when deciding whether to implement the reduction, the section was not intended to be punitive.The failure to actively seek employment did not warrant the drastic reduction in respondent's benefits.Finally, the Court determined that requiring some reasonable correlation between respondent employee’s functional impairment and his ability to earn when establishing an earnings capacity was not error.

State v. Robert M. Chiellini, No. 98-409 (December 4, 2000)

The defendant challenged the trial justice’s denial of his pro se motion for a mistrial.The Court affirmed in part, reversed in part, and remanded.The Court held that the trial justice did not err in denying the defendant’s motion for a mistrial, finding that the trial justice conducted an adequate investigation into one juror’s actions calling an attorney for an explanation of the difference between first- and second-degree murder and neither the prosecution nor the defense desired a new trial.The Court found that the trial justice did err, however, when it refused to apply the habitual criminal statute, G.L. 1956 § 12-19-21, and impose an additional sentence on defendant after finding him to be a habitual offender.

Giulia Simeone, in her capacity as Administratrix of the Estate of Maria G. Simeone et al, No. 99-173 (December 1, 2000)

The Court granted the petitioner’s writ of certiorari from the trial justice’s judgment that punitive damages are not recoverable and denial of her motion to compel responsive answers.The Court held that the state legislature intended to preclude the recovery of punitive damages in a wrongful death action, as evidenced by examining the history of the act and the amendments thereto, the case law relating to damages recoverable under the act, and a comparison of the act with wrongful death statutes in other states.Thus, the Court held that the trial justice abused its discretion in determining that the interrogatories were not relevant.

Astrida Heal v. Stephen Heal, No. 98-577 (December 1, 2000)

Appeal from a family court decision imposing a monetary sanction on the defendant’s attorney based on a finding by the trial justice that counsel filed and litigated a frivolous counterclaim in which the defendant sought custody and physical possession of his minor children.The record in the case demonstrated that a custody claim was made on the eve of trial, after settlement negotiations with respect to the marital property had collapsed. Thus, the court held the trial justice did not err in finding the claim to be completely lacking in merit. The attorney was sanctioned for filing a frivolous motion, an 11th hour counterclaim for sole custody of the minor children.

Montee Debar et al v. Women and Infants Hospital et al, No. 99-91 (November 29, 2000)

Appeal following entry of judgment as a matter of law in favor of the defendants in a Superior Court medical malpractice and wrongful death action.At trial, the plaintiffs sought to introduce testimony of a distinguished neonatal pediatrician on the issue of causation of death. The court held that it was error to exclude this testimony on grounds that he was not an obstetrician, finding that so long as a medical expert on causation was knowledgeable, he did not have to practice in exactly the same specialty as a defendant.The court also noted, for trial justice guidance, that when the plaintiffs suddenly learned that they could not have used an expert they had reasonably counted on, they should have been granted a continuance or non-suit.

In re Application of Roger I. Roots, No. 00-276 (November 20, 2000)

The petitioner applied to the court seeking admission to the state bar.The Committee on Character and Fitness conducted hearings and four members voted to admit the petitioner and two members voted to reject his application. The court concluded that the expiration of the petitioner’s probationary status on the federal-weapons conviction had expired only four years prior to petitioner enrolling in law school and that the petitioner had continued to engage in activities that cast doubt on his candor, truthfulness, and ability to take the attorney’s oath in good faith.The court also concluded that the petitioner had a record of dishonesty which, combined with his other criminal misconduct and recent fabrication on his bar application, showed a lack of candor and justified not admitting him to practice law.

In the Matter of Arthur A. Coia, No. 2000-224 (November 20, 2000)

Petition to revoke or suspend the respondent’s license to practice law.The respondent pled guilty to a criminal information, filed in the United States District Court for the District of Massachusetts, charging him with felony mail fraud, in violation of 18 U.S.C.S. § 1341.Upon receipt of the certified copy of the respondent’s judgment of conviction and the petition filed by disciplinary counsel, the court issued an order to respondent to show cause why the petition to revoke or suspend his license to practice law should not be granted. The court, having reviewed the briefs of the parties and having heard the arguments of counsel and a statement from the respondent, ordered the suspension of respondent from the practice of law for two years.

Carol A. Cummings v. William H. Shorey, in his capacity as Tax for the Town of Middletown, No. 99-117 (November 16, 2000)

The plaintiff’s appeal from a judgment in favor of the defendant claiming that her property taxes had been assessed illegally and that the revaluation was either not certified pursuant to G.L. 1956 § 44-5-11(b) or was certified late, in violation of G.L. 1956 § 44-5-22.defendant granted her some reduction in the assessments, but no relief for the assessment process, which she claimed was illegal.The court held that G.L. 1956 § 44-5-11(b) and 44-5-22 were directory in nature, rather than mandatory, as the legislature did not choose to provide a remedy for their violation.Thus, a failure to strictly comply with them did not render the entire tax structure illegal.The court determined that when the plaintiff stipulated that the property was accurately valued, she failed to meet her burden of proof that the assessment exceeded the property’s fair value.

James J. Thompson v. Doreen A. McCann et al, No. 99-288 (November 6, 2000)

The defendant’s appeal a judgment for specific performance of a purchase and sale agreement, contending that the Superior Court erred in finding that they breached the agreement and granting specific performance.The court affirmed, finding that the plaintiff’s conduct had waived the condition precedent pertaining to the transfer of the liquor license. Because that condition was for the plaintiff’s benefit, the waiver did not constitute a breach of contract on his part and did not excuse the defendants’ obligation to perform.The defendants’ conduct contributing to the parties’ inability to close on the specified date, along with other facts in the case, meant that the decision not to strictly apply a "time is of the essence" clause was not erroneous.

Dallas Pell Yates v. Valerie Hill and Valerie Hill, in her capacity as Trustee of the D. Valerie Trust, No. 99-533-A  (November 6, 2000)

The defendant appeals from a trial justice judgment ordering her to specifically perform a purchase and sale agreement.The court held that specific performance was properly granted because the defendant’s misgivings about selling the property were not grounds for excusing her from performing her contractual obligation.The plaintiff’s and the defendant’s mutual mistake about the proper capacity, either individually or as sole trustee of a trust, in which the defendant should have signed the contract was a situation in which reformation of the contract was appropriate.The failure of conditions precedent to occur was waived because those conditions were originally included for the benefit of the plaintiff.

Diana M. Rivers et al v. George Poisson et al, No. 99-159 (November 3, 2000)

The plaintiff sued defendant  for loss of consortium, negligent supervision and negligent retention of an employee arising from various incidents wherein the defendant’s employee placed harassing phone calls to the plaintiff.The defendant employer filed motions for summary judgment with respect to the plaintiff’s main claims and the trial justice granted partial summary judgment.The Court concluded that, on the facts, no duty existed to anticipate that telephone calls would be made to the plaintiff, and that no duty existed after the termination of the calls to discharge defendant janitor. 

State v. Donna Dellatore, No. 98-298 (November 3, 2000)

The defendant appealed her conviction of the second-degree murder of her newborn child.The Court found that the trial justice’s instructions to the jury addressed both prongs of the Amaro test.Any error in failing to instruct the jury that the child was "born alive" was harmless.

Lori Kiley vs. Steven Patterson, No. 98-46-A (November 2, 2000)

The plaintiff sued for personal injuries arising from a baseball game wherein defendant slid into plaintiff.After summary dismissal of her action against defendant on grounds of assumption of the risk, in the absence of Rhode Island law, the court adopted a duty of care measured not by ordinary negligence standards but by willfulness or recklessness standards. At trial, if plaintiff could only prove defendant's negligence, she could not recover. If, however, as some evidence indicated, she could prove that defendant acted recklessly or intentionally in executing a take-out slide forbidden by league rules, she might recover.

John T. Gormly v. Linda R. Gormly, No. 98-272 (November 1, 2000)

The plaintiff appealed a decision of the Superior Court holding that the defendant former spouse was entitled to the increase in value of the plaintiff’s 401(k) plan because the distributions to the defendant had not been timely made.  The Court held that the Family Court has jurisdiction over post divorce property issues, however, the trial justice did not infringe upon the Family Court’s exclusive jurisdiction as the defendant spouse was merely given compensation for the use of money that was rightfully hers to begin with.

Maria Lindia v. Awilda Nobles et al, No. 99-268 (November 1, 2000)

The plaintiff appealed the trial justice’s dismissal with prejudice of plaintiff’s action for personal injuries pursuant to Super. R. Civ. P. 41(b)(2) for failure to timely serve the defendant with process.The Court reversed the trial justice holding that Super. Ct. R. Civ. P. 41(1), a special rule which provides for a dismissal without prejudice for failure to serve process timely, should have been applied by the trial justice.The Court held that application of a special rule prevails over application of a general rule.

Mario Olivieri, Jr. v. Sherrie L. Olivieri, No. 99-253 (November 1, 2000)

The defendant appealed a magistrate’s decision in a divorce proceeding between plaintiff and defendant that certain bonds were marital assets subject to equitable distribution.The Court upheld the magistrate’s decision, finding that the defendant had indicated an intent to make the bonds part of the marital estate.Because the defendant contributed more financially to the marriage than did plaintiff did not mean that the magistrate erred in distributing the property.

Jan Reitsma, Director of the Rhode Island Department of Environmental Management v. Global Waste Recycling, Inc., No. 2000-318 (November 1, 2000)

The plaintiff, director of the state DEM denied defendant waste recycler's license and sought to enjoin defendant from receiving waste materials during an appeal of the denial. The defendant did not fund an adequate closure fund as required to get a license to operate, nor did defendant obtain a bond in the alternative as a court ordered. Because defendant failed to obtain a bond or insurance policy to cover closing costs, the trial justice enjoined defendant from accepting additional waste material for recycling. The trial justice gave defendant permission to resume operations by obtaining the bond or insurance policy. The Court affirmed because defendant had failed to comply with the trial justice's orders, had no approved closure plan for insurance to cover, and had no insurance policy to secure closure costs.

Barbara Rubery et al v. The Downing Corporation et al, No. 99-359 (November 1, 2000)

The plaintiff’s brought a personal injury action against defendants for plaintiff wife’s slip-and-fall on ice covered walkway in front of defendants’ building.The Court held that the defendant lessee had no duty to warn the plaintiff wife of the dangerous condition because she had just shortly before the accident entered the building aware of said condition.

In re Nicole C. et al, No. 98-582 (October 27, 2000)

The trial justice entered a decree terminating respondent mother's parental rights to her children. respondent appealed the decree, arguing the trial justice erred in finding that the DCYF made reasonable efforts to provide her with programs tailored to address her underlying problems and promote reunification with her children. The court held the trial justice's decision was not clearly wrong, nor did the trial justice overlook or misconceive material evidence. DCYF made numerous attempts to enroll the respondent in several different parenting classes as well as programs designed to treat substance abuse. The respondent failed to attend these classes or refused to cooperate with the programs. DCYF found respondent an apartment, paid the first month's rent, and posted the security deposit. Within two months she was arrested again and incarcerated for various drug-related crimes involving both heroin and marijuana. The court held the evidence was overwhelming and clearly supported the finding of parental unfitness.

In re John F. et al, No. 98-602 (October 27, 2000)

The respondent appealed the termination of her parental rights by the trial justice.The Court affirmed the determination of the trial justice, finding that the trial justice had clear and convincing evidence that the respondent had failed to provide her children with a stable, secure, and consistent home life.Additionally, the trial justice had competent evidence of the respondent’s consistent failure to avail herself of the numerous treatment services offered to her by DCYF. 

State v. Adalberto Villafane, No. 99-20 (October 27, 2000)

The defendant appealed his convictions for first-degree child molestation and assault with intent to commit first-degree child molestation.The Court, in affirming the defendant’s conviction, held that the trial justice’s two curative jury instructions effectively nullified any jury prejudice regarding a potentially inflammatory statement made by the victim regarding a polygraph examination.Moreover, the statement only ambiguously implied that victim was the subject who took the polygraph test.

State v. Jeffrey Scott Hornoff, No. 99-508 (October 24, 2000)

The defendant appealed his conviction of first-degree murder.  The Court, in affirming the defendant’s conviction, found that the trial justice had sufficient evidence of a heinous attack and the discovery at the scene of gloves that had obviously been removed after the murder indicating premeditation for a first-degree murder conviction.The Court also found that the new evidence defendant sought to offer failed to meet the most basic criteria necessary to warrant a new trial.

Maureen V. Rubano v. Concetta A. DiCenzo, No. 97-604 (September 25, 2000)

The Family Court certified this jurisdictional question to the Court regarding a consent agreement between biological mother and non-biological former domestic partner which arranged latter’s visitation with the couple’s child.The Court remanded, holding that the Family Court did have jurisdiction to determine the existence of a mother and child relationship between the non-biological partner and the child and, as such, could enforce the parties' written agreement to allow non-biological partner to have visitation.

  
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