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Opinions (2001-2002)

 
Supreme Court
Published Opinions 2001 - 2002 Term

State v. Christopher S. Thornton, No. 99-376 (June 27, 2002)

The defendant appealed his conviction on a variety of alleged trial errors.This Court rejected his constitutional claim and concluded that he voluntarily waived his right to counsel. Furthermore, there was no abuse of discretion on the part of the trial justice in permitting a juror to remain on the jury panel. The trial justice did not err in excluding defendant from six chambers conferences, from excluding an officer’s testimony, admitting defendant’s prior bad acts, or concluding that the parole board, rather than the court, should assess the quality of defendant’s claimed rehabilitation.The appeal was denied and dismissed.

State v. Milton Aponte, No. 00-234 (June 20, 2002)

The defendant appealed his conviction on a variety of alleged trial errors.This Court rejected his constitutional claim and concluded that he voluntarily waived his right to counsel. Furthermore, there was no abuse of discretion on the part of the trial justice in permitting a juror to remain on the jury panel. The trial justice did not err in excluding defendant from six chambers conferences, from excluding an officer’s testimony, admitting defendant’s prior bad acts, or concluding that the parole board, rather than the court, should assess the quality of defendant’s claimed rehabilitation.The appeal was denied and dismissed.

Richard E. Johnson, Jr. v. Newport County Chapter for Retarded Citizens, Inc., et al, No. 01-129 (June 19,2002)

This Court concluded that the 90-day provision in G.L. 1956 § 28-5-24.1 fell under an exception to the tolling provision in § 9-1-19 and, therefore, the 90-day statute of limitations was applicable. In appropriate circumstances, equitable tolling could serve as an exception to the statute of limitations set forth in § 28-5-24.1 for people of unsound mind. If the employee was found to be of unsound mind, equitable tolling was available as an exception to the statute of limitations during the period at issue.

Newport Court Club Associates d/b/a Newport Athletic Club et al v. Town Council of the Town of Middletown et al, No. 00-7 (June 19, 2002)

This Court previously held that the town lacked the authority to include charges for debt service and capital costs in its sewer bills.  The town then lobbied for corrective legislation, and the general assembly obliged. The new law gave a town the option of including assessments for these cost in its sewer charges, or of paying for them through general taxation. The town’s council adopted the latter course. The ratepayer argued that § 1 violated R.I. Const. art. 13, § 4, which required that specific legislation affecting a particular home-rule community be approved by a majority of the town’s electors. This Court rejected the ratepayer’s argument because the law was enacted, not under § 4 but under R.I. Const. art. 13, § 5, and was a proper exercise of the legislature’s power over municipal taxation and borrowing. The sewer assessment was not a tax, and thus the 5.5 percent cap imposed on municipal taxes by G.L. 1956 § 44-5-2(c) was inapplicable. Section 1, did not violate equal protection under the state or federal constitutions, and was not an unconstitutional delegation of power under R.I. Const. art. 6, §§ 1 or 2.

State v. Anibal Santiago, No. 01-428 (June 18, 2002)

A police officer stopped an unregistered vehicle that defendant was driving and both occupants reached under the front seat. A subsequent search of the vehicle revealed two loaded firearms underneath the front seat. At the time of the incident, defendant was under a suspended sentence of incarceration with probation. The trial justice found that there was no evidence to suggest that defendant knew the weapons were under the seat, and it found that defendant had not violated the conditions of his probation. This Court granted the state’s appeal because: (1) defendant's knowledge of the existence and location of the weapons could be inferred from his conduct, and the trial court erred when it found there was no evidence that established that defendant knew the guns were under the seat; and (2) the trial court erred by applying a "reasonably satisfied" standard to the narrow question of whether defendant was guilty of illegally possessing firearms instead of applying that standard to determine if defendant was lacking in the good behavior required by his probationary status.

731 Airport Associates, LP et al v. H & M Realty Associates, LLC by and through its Member, Donald N. Leef, No. 01-83 (June 18, 2002)

This appeal concerned an agreement for the purchase of land.  After the seller sold the property to a third party, the buyer filed suit. This Court concluded that the trial justice did not err by finding that the seller's attorney lacked apparent authority to bind the seller, that there was no meeting of the minds, and that the buyer failed to prove the seller manifested an objective intent to be bound in the absence of an executed written agreement.

Joseph T. Wood, Jr. v. Mary-Ellen Durkin, No. 01-70 (June 14, 2002)

The trial court allowed the trial to proceed on a counterclaim, which the husband argued was improperly filed. This Court concluded that, as the husband filed a claim for divorce, and the wife's counterclaim likewise was for divorce, the husband was adequately apprised of the issues and should have been prepared to proceed to trial. Accordingly, had the trial justice granted a motion to amend the pleadings, the husband would not have been prejudiced. Furthermore, the husband neither answered nor objected to the counterclaim when it was filed. Thus, he was not disadvantaged by proceeding in his absence. 

State of Rhode Island, Department of Environmental Management v. State of Rhode Island, Labor Relations Board et al, No. 00-372 (June 14, 2002)

The union alleged that the DEM violated the collective bargaining agreement (CBA) by posting a part-time position. The union sought review by the Office of Labor Relations, which denied the union's grievance. The union then took the matter to the Labor Relations Board (Labor Board). This Court concluded that, under the CBA, the union elected to submit disputes such as this to binding arbitration. Therefore, the matter was not appropriately before the Labor Board, nor was it ripe for judicial review. Therefore, the trial justice’s decision upholding the Labor Board decision was error.

Mary Elizabeth Codd v. Victor G. Barrett, No. 01-99 (June 14, 2002)

The family court found the father in civil contempt for failure to comply with the final judgment of divorce. This Court concluded that the motion upon which the magistrate based his contempt finding was the plaintiff mother's motion to declare the father in willful contempt and was one relating to a finding of contempt for failure to pay child support. Therefore, the father's appeal had to be by way of certiorari. The fact that the order addressed other issues that, if based in a separate judgment may have been appealable, was of no moment. 

Thomas P. Ricci v. Edward Marandola et al, No. 01-262 (June 13, 2002)

The automobile dealer sought to have an arbitration award confirmed which appraised business and real estate that he and his partner sought to divide.  This Court concluded that the arbitration clause in the parties' agreement was very broad, and therefore, there was no way that the arbitrator could be said to have exceeded his authority.

Lisa Geremia v. Allstate Insurance Company, No. 00-355 (June 13, 2002)

The insured pursued a claim for underinsured/uninsured motorist (UM) benefits against defendant insurer and demanded binding arbitration. The arbitrators made an award favoring the insured. The insured filed a petition to confirm the arbitration award and to alter the calculation of interest made by the arbitrators. This Court concluded that the trial justice did not err in confirming the award.

State v. Junis Brown, No. 99-325 (June 13, 2002)

The defendant was convicted of robbing a store proprietor with a gun and with another person. This Court concluded that the trial justice properly denied defendant’s motion for new trial based on newly discovered evidence since the evidence was known or could reasonably have been discovered by defendant by the time of trial. Furthermore, the trial justice’s jury instructions were proper and its colloquy with deliberating jurors to answer their questions was harmless error.

Pierre de Bourgknecht v. Thomas Rossi, in his capacity as Tax Assessor for the City of Providence, No. 01-22 (June 13, 2002)

This Court agreed with the trial justice that the assessor’s 1994 depreciation adjustment was arbitrary. The doctrine of res judicata did not apply because there was no judicial determination of the lower valuation for 1994. Although tax assessment history could be relevant, each annual assessment of property for taxation was a separate act and independent of the assessment of the same property for other years. This Court noted that the landowner did not supported his 1995 claim with appraisals or expert testimony. The doctrine of administrative finality also did not apply--for the 1995 valuation to be similar to the 1994 valuation--since the doctrine did not allow for perpetuation of administrative error.

Marketing Design Source, Inc. v. Pranda North America, Inc., No. 01-32 (June 12, 2002)

This Court upheld judgment in the firm’s favor on its breach of contract claim and on the manufacturer’s counterclaim for breach of the implied warranties of merchantability and fitness for a particular purpose. The parties' references in the pleadings to a written agreement satisfied the statute of frauds, and the manufacturer failed to offer critical evidence in support of its counterclaim for breach of warranty. Finally, the amount of damages was readily ascertainable from the invoices and other records submitted by the firm.

State v. David Fritz, No. 01-369 (June 12, 2002)

The defendant was accused of violating G.L. 1956 § 11-2-1.1, failure to pay child support. The defendant filed a motion to dismiss the information, claiming that his obligation to pay child support ended once his parental rights had been terminated and therefore, he could not be prosecuted under the statute.This Court determined that termination of parental rights did not terminate parental support obligations. Because the trial justice improperly found that the amount of defendant's child support obligation was to be determined from the date that his parental rights were terminated, the matter was remanded for a determination of whether there was probable cause that defendant violated  § 11-2-1.1(b)(1).

State v. Roger Goddard, No. 00-346 (June 12, 2002)

The Court determined that the trial justice erred in permitting the prosecution to elicit from one of the State's witnesses the defendant's post-arrest decision to not be questioned after being given the Miranda warnings. However, the error was harmless beyond a reasonable doubt because the evidence of defendant's robbing the victim clearly established that defendant had committed the crime and at the time was not suffering from any diminished capacity. 

Andrew Perry et al v. William Garey et al, No. 01-37 (June 12, 2002)Also See Diagram

The trial justice ordered the corporations to pay royalties per a contract between the parties. This Court concluded that the consultants were not entitled to royalties pursuant to the contract, because of the language in a previous contract.

Claire M. Norton et al v. George A. Courtemanche et al v. SAI Surveying Company et al, No. 01-63 (June 7, 2002)

The decedent commenced litigation against his neighbors alleging that they had built a house on his land based on the mown-grass line that he believed reflected the true boundary as represented in an old plat map. This Court affirmed the factual findings and legal conclusions of the trial justice, rejecting the decedent’s claim. The trial justice did not hold that a mown-grass line could never be used to prove a boundary, only that the mown-grass line evidence in the instant case was inconclusive. Finally, the trial justice’s interpretation of the plat map was not unreasonable, even though it could have been interpreted differently.

State v. William Holdsworth, No. 99-468 (June 6, 2002)

The defendant appealed the denial of his motion to suppress alleging that the arresting officer lacked reasonable suspicion of criminal activity, and that the trial justice did not sufficiently inquire about his psychiatric condition before finding him competent to waive his right to counsel. This Court determined that the suppression motion was properly denied. However, the trial justice did not adequately conduct a Chabot inquiry prior to accepting defendant's waiver of counsel. A competency evaluation and a new trial were needed.

State v. Alfred Silvia, Sr., No. 99-438 (June 4, 2002)

The defendant was accused of molesting his granddaughter in two incidents that allegedly occurred on the same day. However, the actual date could not be pinpointed. This Court determined that the evidence was sufficient to support defendant's conviction. The defendant also challenged the constitutionality of the registration and notification statute that would eventually apply to him, but this Court concluded that the defendant had failed to raise it below and therefore, his challenge was waived.

In re Chaselle S., No. 01-102 (June 4, 2002)

The father appealed the family court decision terminating his parental rights.This Court noted that DCYF failed to offer services for a 12-month period, as required by the statute, in part because father initially questioned his paternity. The Court concluded that G.L. 1956 § 15-7-7 did not require corrective services during the time that a putative parent's biological relation to the child was in question. Furthermore, the father's substantial problems and the best interests of the child favored the termination of the father's parental rights. Accordingly, the family court did not err in terminating the father's parental rights.

National Lumber & Building Materials Co. v. James R. Langevin, in his capacity as Secretary of State et al, No. 01-113 (June 4, 2002)

The secretary of state's office approved defendant's use of a fictitious business name after it approved the plaintiff’s use of the same. The trial justice properly permanently enjoined defendant from using the name while doing business in Rhode Island. 

The Sakonnet Point Marina Association, Inc. v. Bluff Head Corp. et al v. Harbor Point Properties, Inc., No. 01-136 (June 4, 2002)

A corporation purchased property and received a quitclaim deed which required it to provide 21 parking spaces for people who belonged to a nearby marina or their guests, either on the property it purchased or on an adjacent piece of property. The corporation refused to make 21 parking spaces available on the property it purchased, an association which subsequently purchased the marina (marina association) sued to enforce the parking easement. The Court held that the parking easement was valid, and because the corporation did not purchase the adjacent piece of property, all 21 spaces had to be provided on the property it purchased.

Robert M. Santucci et al v. Citizens Bank of RI, No. 01-163 (June 4, 2002)

An elderly woman opened an 18-month certificate of deposit with a principal balance of approximately $ 39,000. She made significant withdrawals from her account and gave the money to a man who had a history of drug abuse.When her children were appointed guardians they sued the bank. The Court concluded that the children had no private right of action against the bank, the bank did not breach its duties or contracts it had with the elderly woman.

State v. Reynaldo Rodriguez, No. 00-411 (June 4, 2002)

The defendant was convicted of drug charges.  On appeal he alleged that the fact that his fingerprints were found on four different objects associated with a methamphetamine "box lab," was insufficient evidence to convict him since an innocent explanation was possible. The Court was of the opinion that the totality of the circumstantial evidence and the fingerprint evidence against defendant were sufficient for a jury to conclude beyond a reasonable doubt that defendant possessed drug paraphernalia by dominion and control and possessed heroin with the intent to deliver. 

Rachel F. Kennett et al v. Richard Marquis et al, No. 01-128 (June 4, 2002)

The Court affirmed the trial justice’s decision that the agent had not acted outside of her agency relationship with the sellers and buyers. Therefore, the defendant-agent was entitled to judgment as a matter of law.

In re Brianna D., No. 01-5 (June 3, 2002)

This Court affirmed the family court decree terminating the mother’s parental rights.  The mother was a chronic substance abuser, attempted to treat her bipolar disorder with illegal drugs, and was not motivated toward recovery. Furthremore, she failed to abide by case plans.

Joao Mello v. Joseph DaLomba et al, No. 00-375 (June 3, 2002)

A former employee filed suit alleging that his former employer demanded kickbacks. At the close of a jury trial, the trial court granted the employer's motion for judgment as a matter of law. This Court determined that (1) the trial justice did not err by bifurcating the trial on the issues of liability and damages; (2) the trial justice erred by relying on the absence of a threat of bodily harm to the employee as a basis for dismissing the employee's claims under state law, because G.L. 1956 §§ 11-42-1.2, 11-42-2, contemplated liability for threats of non-bodily harm; (3) the trial justice erred by assuming that the employer could not be held civilly liable under G.L. § 9-1-2 for violating federal statutes; and (4) the trial court also failed to evaluate the employee's claim that the employer had violated G.L. 1956 §§ 28-14-2, 11-41-4.

State v. Sory Kaba et al, No. 99-113 (June 3, 2002)

The case concerned the delivery of a package from Thailand, addressed to what the police decided was defendants' address. The package contained heroin and defendants were arrested after picking up the package from a post office. One of the defendant's made incriminating statements after being confronted by the police. This Court held the statements were made absent police interrogation and voluntarily after his arrest. Having concluded that the evidence was sufficient to withstand the more stringent review applicable to a motion for a new trial, it followed that the evidence was also sufficient to withstand a motion for a judgment of acquittal.

Steven Biron et al v. Dennis Falardeau, No. 00-421 (May 31, 2002)

On appeal, the Court advised that civil contempt was established when it was proved by clear and convincing evidence that a lawful decree was violated. The Court agreed with the trial justice that there was sufficient evidence to show that the neighbor violated the original restraining order by engaging in contact with plaintiff property owners that amounted to more than mere coincidence. In addition, the Court concluded that the terms of the order restraining the neighbor from "interfering, molesting, harassing, or contacting" the property owners was sufficiently clear for the neighbor to understand that he was to refrain from contacting the property owners as he did. Accordingly, the Court affirmed the trial justice’s civil contempt finding.

David Oberlander v. General Motors Corp., No. 01-109 (May 31, 2002)

The buyer argued on appeal the trial court improperly granted summary judgment. The Court advised that, in order to establish liability for breach of the implied warranty of merchantability, a plaintiff must prove that the product was defective, that it was in a defective condition at the time it left the hands of the seller, and that said defect was the proximate cause of the injury. Therefore, since the buyer did not present any evidence that the truck was defective at the time he bought it, that the defect was attributed to the manufacturer, or of diminished value of the truck, summary judgment was properly granted.

State v. David A. Andreozzi, No. 00-289 (May 31, 2002)

The defendant was charged with domestic disorderly conduct, which was later modified to simple assault for allegedly raising his hand to his wife. The Court rejected defendant’s claimed errors on appeal, concluding that the trial justice did not abuse his discretion in permitting inquiry into defendant's prior bad conduct. Any error was cured by the trial justice’s cautionary instruction to the jury that the evidence was admitted for the limited purpose of showing defendant's motive or intent.

State v. Jonathan P. Quaweay, No. 00-288 (May 29, 2002)

The defendant filed a motion to reduce his sentence, arguing that a reconsideration of the severity of the offense justified a reduction. The Court on appeal noted that, pursuant to R.I. Super. Ct. R. Crim. P. 35, the motion to reduce the sentence needed to be filed within 120 days of the final judgment of conviction, which was on or before July 30, 1996. The motion was not timely. Moreover, even if the motion was filed in time, the superior court did not err in refusing to reduce the sentence.

State v. Marc A. Girard, No. 01-282 (May 28, 2002)

The defendant appealed from his murder conviction alleging that his confession was involuntary. The Court looked to the totality of the circumstances in evaluating the voluntariness of defendant's confession. It noted that he had not been in custody when he first spoke with police, and that he received many Miranda cautions, and that every time he was cautioned, he executed a waiver. The Court further rejected defendant’s other claimed errors.

Spencer Potter v. Mary Crawford, in her capacity as Treasurer of the Town of Jamestown, No. 01-94 (May 24, 2002)

The owner negotiated a settlement of a dispute with the chairman of the town council over a wharf construction project that allegedly infringed on his riparian rights. The owner prepared a written agreement. However, the town notified the owner that it would not sign the agreement. The town contended that the chairman lacked both actual and apparent authority to bind the town to the oral agreement. The town also attacked the owner’s substantive complaint. On appeal, the Court rejected the owner’s allegation that the chairman had the authority to bind the town.Further, even if the owner's riparian boundary had been infringed upon, there was no showing that his riparian rights in fact had been adversely affected despite that infringement.

Liberty Mutual Insurance Company v. Bartolo Tavarez, Administrator of the Estate of Bartolo A. Tavarez, No. 00-405 (May 23, 2002)

On appeal, the insurer sought review of a trial justice’s authority to add prejudgment interest and cost to an arbitration award.  The Court upheld the award because of the insurer's egregious breach of contract in refusing coverage for the claim and in failing to arbitrate it in a timely manner. The award of interest was appropriate "further relief" in the declaratory-judgment action, under G.L. 1956 § 9-30-8. Nevertheless, the trial justice’s calculation of interest was erroneous as was its award of certain litigation costs, such as expert witness fees.

Patricia Lett v. The Providence Journal Company
Louis Giuliano v. The Providence Journal Company
No. 00-62 (May 23, 2002)

The plaintiffs appealed from a motion to dismiss granted in the newspaper’s favor. Both also argued that the trial justice erred in not granting their motions to vacate on the basis of newly discovered evidence. This Court upheld the trial justice’s finding that plaintiff’s had committed a fraud on the court. There was also no abuse of discretion in his determination that plaintiffs misled the trial justice concerning one plaintiff’s ability to testify. This Court otherwise affirmed the decision of the trial justice.

Joyce Rezendes v. Daniel Beaudette et al, No. 2000-365 (May 22, 2002)

The employee brought a claim of malicious prosecution against the employer after the employee was charged with larceny. On appeal, the employee argued that the trial justice erred in his motion for new trial and judgment as a matter of law analyses. The Court rejected the employee’s claims.

In re McBurney Law Services, Inc., No. 2001-159 & 2000-11 (May 21, 2002)

A shareholder and the corporation’s counsel set forth the shareholder’s percentage of owned shares in writing to settle a dispute.The shareholder later sought to modify the stipulation and the panel granted the modification. On appeal the Court determined that the stipulation could not be challenged since it was a compromise. 

David Butera d/b/a Butera Building and Design v. Richard N. Boucher et al, No. 99-409 (May 21, 2002)  (Corrected)

The buyers terminated the contract to build a house with the builder alleging failure to accomplish substantial performance. The builder sued and was awarded lost profits. The Court on appeal concluded that (1) the trial court did not abuse its discretion by quashing two subpoenas duces tecum that were filed by the buyers on the eve of trial and were overbroad; (2) the buyers breached the contract by terminating it without justification before the completion date and, as a result, the builder was entitled to recover his lost profits even though he had not substantially performed; (3) the record supported the jury's verdict in favor of the buyers on the builder's claim for slander and the trial court did not err by denying the builder's motion for a new trial on that claim; and (4) the trial court did not err when it granted the buyers' motion for judgment as a matter of law on the builder's claims for malicious prosecution and abuse of process.

City of Newport v. Allen Lama et al, No. 01-1 (May 21, 2002)

The trial justice found that because the union had initially negotiated the terms of the occupational injury provision in the collective bargaining agreement (CBA), the city could not apply an amended city ordinance to the CBA absent further negotiation. On appeal, the Court concluded the arbitrator's award should not have been confirmed because she manifestly disregarded the clear and unambiguous language of the contract. The appellate court noted the arbitrator incorrectly found that the reference to the ordinance in the CBA was capable of different meanings because, in the absence of a limitation on the city's authority to amend, the ordinance implied that the parties accepted such a possibility. 

State v. Feole, No. 99-241 (May 21, 2002)

The defendant was charged with solicitation of murder. On appeal, the defendant contended that the trial justice infringed on his Sixth Amendment rights.  This Court concluded that (1) the resolution adopted by the trial court afforded defendant his right to testify and promoted the fair and expeditious resolution of the case without unduly delaying the trial; (2) defendant was not deprived of his right to counsel; and (3) the trial court erred by asking defendant in the jury's presence if he wanted to testify but because defendant did not object during that exchange or brief or argue the issue on appeal, the issue was not preserved for review.

Donald Tinney v. Kevin Tinney, a/d/a Kevin Jacob Koellisch et al, No. 2001-51 (May 20, 2002)

In this declaratory judgment action, the natural son asked the court to declare that the adopted son was not entitled to intestate inheritance. The trial court denied the motion and granted the adopted son’s motion for the same. On appeal, the natural son maintained the legislature did not intend to give an adopted adult the same rights as an adopted child. Upon reviewing the statutory history of adoption in Rhode Island, the appellate court determined it was clear that "child" meant the son or daughter of a parent, regardless of age. 

State v. Derick Hazard, No. 99-127 (May 16, 2002) (corrected)

On appeal, the defendant challenged several of the trial justice’s rulings.  The Court concluded that the trial justice did not err by admitting the witness's testimony as a credible and reliable witness and not admitting the recantation for the reason that the witness's first statements were corroborated and his recantation could be attributed to fear of repercussions. The other inconsistencies of the witness's testimony were for the jury to decide. The superior court was not a credibility gatekeeper. The appeals court further noted that the evidence of defendant's alibi did not warrant a new trial based on newly discovered evidence.

Michael Parrella, Donna Ann Parella, and Michael Anthony Parrella v. Dr. Kathleen Cote Bowling and Women and Infants Hospital of Rhode Island, No. 00-296 (May 16, 2002)

The parents brought a malpractice action after their son was born with cerebral palsy, contending that his condition was caused by oxygen deprivation during a critical pre-delivery period when the physician could not be reached on her pager. On appeal the Court sustained the jury verdict. 

Colleen Lee v. Rhode Island Council 94, A.F.S.C.M.C., AFL-CIO, Local 186 v. Town of Burrillville, by and through its Treasurer, John Manville, No. 00-368 (May 16, 2002)  Please note, this file is in Microsoft Word.  Adobe is giving me error messages.  As soon as I can create it in pdf, I will change it.  Sorry for any inconvenience.

The employee sued the union alleging a breach of the duty of fair representation, after the union failed to file a timely request for arbitration on her behalf. The union filed a third-party complaint against the town seeking indemnification. On appeal, this Court was not convinced that the failure to perform the ministerial act of a timely demand for arbitration amounted to mere negligence. The appellate court concluded that when the neglect of the union completely extinguished the employee's right to a determination of the merits of her termination, the union’s conduct amounted to unfair representation.

State v. Peter Apalakis, No. 00-439 (May 15, 2002)

The defendant appealed the trial justice’s denial of his motion to suppress. The defendant argued that by handcuffing him and isolating him in order to elicit incriminating statements, the officers conducted an unreasonable seizure in violation of the Fourth Amendment. This Court rejected defendant’s arguments.

Marie Medeiros et al v. Anthem Casualty Ins. et al, No. 00-261 (May 13, 2002)

The first and second decedents were killed in a car accident when they were struck by an uninsured drunk driver on their way home from a baseball game. At the time of their deaths, each decedent owned part of two closely held corporations that carried separate insurance policies providing coverage for two cars, neither of which was involved in the accident, and uninsured motorist coverage for the corporation, which was the named insured party. The trial court properly granted summary judgment in favor of the insurers because the decedent was not entitled to uninsured motorist coverage - the corporation was the insured party, not the decedent. There was no direct evidence that the decedents were engaged in any business-related activity at the time of the accident.

Santina Siena, M.D. et al v. Microsoft Corporation, No. 00-472 (May 9, 2002)

The doctor and the law firm alleged that the computer company unlawfully exercised its monopoly power by licensing its operating system at a price that exceeded that which it could have charged in a competitive market. Both parties had purchased the computers with the software already installed, however, neither purchased the computer from defendant directly.  The Court affirmed the Superior Court finding that neither party had standing because they were indirect purchasers.

State v. George Raymond, No. 00-260 (May 9, 2002)

The defendant appealed from the trial justice’s denial of his motion for new trial.  On appeal, this Court affirmed. The defendant was accused of holding a knife to the taxicab driver’s neck, and ordering him to drive.  In reviewing the motion for new trial, the trial justice was satisfied that the driver's testimony was truthful. Furthermore, defendant did not dispute his position in the taxicab, nor the fact that he was carrying a knife in his lap, which corroborated the driver's testimony.

David L. Carpentier v. State of Rhode Island, No. 00-339 (May 9, 2002)

The defendant plead nolo contendere to charges of rape and kidnapping. He later applied for post-conviction relief.This Court concluded that his appeal was untimely since no final judgment had been entered following the post-conviction relief decision.

State v. Dennis Farias, No. 00-38 (May 9, 2002)

The defendant was accused of sexual assault.At trial, a lifeguard testified for the State that she confronted defendant and told him that his touching and rubbing other club members had to stop. The defendant argued on appeal that the trial justice erred by admitting evidence of prior uncharged acts of sexual touching and that a limiting instruction regarding such testimony should have been given. This Court noted that in cases in which prior bad act evidence could be used for a variety of reasons, a limiting instruction explaining the limited purpose for considering the evidence was proper and the failure to give a limiting instruction, in this case, was reversible error.

In re Andrey G., No. 00-406 (May 9, 2002)

The defendant was charged with first and second-degree child molestation.On appeal, defendant complained of a variety of errors. The Court affirmed the convictions, determining that the trial justice did not abuse her discretion in admitting hearsay evidence and did not consider evidence of other uncharged acts.

JH v. RB, No. 00-359 (May 8, 2002)

The mother filed an action to establish the paternity of her child in Rhode Island.She alleged that her former boyfriend was the father, and not her ex-husband.However, a Florida divorce judgment concluded that ex-husband was the father of the child.Therefore, the mother could not now contest the Florida judgment.The trial justice properly applied the Full Faith and Credit Clause.

Rhode Island Laborers' District Council et al v. City of Providence et al, City of Providence et al. v. Rhode Island Laborers' District Council et al, No. 99-411 (May 8, 2002)

The union claimed that 85 employees were municipal employees and should be parties to the collective bargaining agreement (CBA). The union reached an agreement with the mayor's assistant that recognized 27 of the employees. However, the city's council did not ratify that agreement. Arbitation was resolved in the union’s favor. This Court found that the grievance was not arbitrable because the addition of the employees was a substantive amendment ot the CBA which required ratification.

Robert Skaling et al. v. Aetna Insurance Company and Travelers/Aetna Insurance Company as successor to Aetna Insurance Company, No. 00-325 (May 8, 2002)

The insured was injured attempting to rescue a person from an underinsured vehicle and the insurer denied him UM benefits. This Court concluded that even though insured did not prevail on judgment as a matter of law on his breach of contract claim, he could still claim bad faith.   Under G.L. 1956 § 9-1-33, the question of the insurer's bad faith in refusing to settle the insured's claim against it was to be determined by a trier of fact.

Joanne Woodstock v. Everet Sherman et al, No. 00-274 (May 8, 2002)

The trial justice granted the motion for new trial filed by the motorist after the jury found in the driver’s favor.On appeal, the Court determined that the trial justice committed clear error in granting the motion, as it relied twice on purported evidence that the driver saw the motorist's vehicle slide before coming to a stop at the intersection, even though neither party testified to that fact at trial.

David J. Caito v. Mauro Juarez, alias and General Dry Wall Services, Inc., No. 01-9 (May 3, 2002)

The buyer refused to pay the seller an additional $10,000 that the seller demanded after the buyer took ownership of the property. The seller refused to appear at the closing and the buyer demanded specific performance. The Court affirmed the trial justice’s decision.

Board of Governors for Higher Education and the State of Rhode Island through its Department of Administration v. Infinity Construction Services, Inc., No. 00-469 (May 3, 2002)

A contractor entered into an agreement with the State and the state board to build a university facility. The contract contained an arbitration clause.  The contractor hired a subcontractor to do the excavation and when the subcontractor encountered site problems, the contractor assigned its arbitration rights to the subcontractor. This Court concluded that the trial justice properly awarded injunctive relief. The contractor could not assign its arbitration rights to the subcontractor. Furthermore, the subcontractor could not invoke the pass-through doctrine because it was not in privity with the state.

Small Business Loan Fund Corporation v. David M. Gallant et al, No. 00-380 (May 3, 2002)

The appeal was dismissed for failure to order a transcript within the 10-day period set forth in R.I. Sup. Ct. art. I, R. 10(b)(1). No showing of excusable neglect was made.

Ralph Sweet v. Pace Membership Warehouse, Inc., No. 00-94 (May 2, 2002)

The contractor alleged that he continued to suffer from effects of the accident and that his injuries were permanent.  A videotape arguable could have shown that the contractor was engaging in strenuous activity.  The trial justice excluded the videotape.  On appeal, the Court held that it was an abuse of discretion because the videotape was impeachment evidence. 

Anthony DiCiantis v. Ashbel T. Wall et al, No. 01-28 (April 25, 2002)

The inmate filed a claim under 42 U.S.C. § 1983 alleging that the prison warden had infringed on his constitutional rights by placing him in administrative segregation without a hearing.The Court determined that the Superior Court had no jurisdiction to review alleged violations of Morris Rules.Further, the inmate had no liberty interest in the disciplinary proceedings, and therefore he had no constitutional right of judicial review of the same. 

Aetna Bridge Company v. State of Rhode Island Department of Transportation, No. 99-391 (April 19, 2002)

The bridge company contracted with the department to do bridge reconstruction work. The bridge company underestimated the scope of certain work, and was required to employ an additional 1,650 work hours to complete the project. The department refused to pay. An arbitrator gave an award in favor of the bridge company. The department alleged that the bridge company lacked standing to bring a pass-through claim. The Court concluded that if the bridge company's claim was a pass-through claim with no concomitant liability to the bridge company, then it would not be arbitrable pursuant to the Severin doctrine. The Court remanded for a determination of the substantive arbitrability of the claim. 

Wanda MacTavish v. Rhode Island Hospital, No. 00-504 (April 19, 2002)

The patient claimed the trial justice erred in granting the hospital's motion for summary judgment.The hospital had alleged that the patient’s claim could not survive summary judgment because she did not plan to introduced medical expert testimony at trial to support her slip-and-fall claim.This Court ruled that in the absence of any specific hospital order or existing duty requiring the hospital nurse to provide ambulatory assistance to the patient, expert opinion was necessary to establish both the hospital's duty of care and a breach of that duty by the nurse. Therefore, the appeal was denied and dismissed.

Linda Tucker et al v. Edmund Kittredge et al, No. 00-473 (April 19, 2002)

The trustees had filed suit to enjoin the landowner and two neighbors from interfering with an alleged public right of way. The neighbors moved for a preliminary injunction to enjoin the trustees from interfering with the right of way. The landowner was not present at the hearing on this motion, nor had he received notice of it. The trial justice ordered that all obstacles on the right of way, including a fence erected by the landowner, had to be removed. This Court reversed because under R.I. Super. Ct. R. Civ. P. 65(a)(1), it was error to grant the trustees’ motion without notice to the landowner. Under Rule 7(b)(1) the landowner was entitled to receive a written motion requesting the relief granted to the trustees and, under Rule 6(c) he was entitled to at least 10 days’ notice of a hearing on that motion.

State v. Carl J. Thomas, No. 00-486 (April 19, 2002)

The defendant entered a plea of nolo contendere in the middle of trial, against the advice of his counsel.  He explained that he wished to spare his wife further anguish. After thoroughly discussing the consequences with him, the trial justice accepted his plea. The defendant later sought post-conviction relief on the grounds that since he was not taking his anti-psychotic medication at the time he entered his pleas, he was not competent to enter them. The trial justice rejected the application and this Court affirmed. On appeal, the Court re-examined the record of the plea proceedings and found that although applicant mentioned that he was not taking his medication, the trial justice explicitly inquired into his understanding of the proceedings, thoroughly explained matters to applicant, and found on the record that applicant’s actions were knowing and intelligent.

Ann Chiaradio et al v. Francis Falck, M.D., et al No. 00-199 (April 15, 2002)

The patient filed a medical malpractice lawsuit against her ophthalmologist alleging that she was partially blinded because of his negligent performance of eye surgery. In the middle of trial, the physician’s counsel sought to commence discovery regarding a theory that a subsequent eye surgery had caused the blindness, based on a videotape of that surgery.The trial justice ordered the physician to pay the extra expert witness costs incurred by the patient in complying with these late discovery requests because the physician was notified of the videotape in an earlier deposition but did not pursue the theory. The Court reviewed the order on an interlocutory appeal, since the physician's right to defend himself was at stake, and held that the order improperly limited the physician's right to defend himself. However, if the patient succeeded on the merits, the extra costs caused by an expert witness should be awarded to the patient.

Gerald K. Adams v. Uno Restaurants, Inc. d/b/a Pizzeria Uno Restaurant and Bar, No. 00-266 (April 15, 2002)

The employee sued the employer alleging that he was retaliated against for reporting a health code violation.The employer moved to set aside the jury's verdict for lack of medical testimony on whether the employee's emotional distress and humiliation ordinarily and naturally followed from the employer's actions.The Court concluded that it was error for the trial justice to grant the employer’s motion.

State v. Jean Bautista Guzman, No. 00-478 (April 12, 2002)

The defendant was convicted of second-degree murder and two weapons offenses and received three consecutive sentences for shooting a victim who allegedly threatened him. The trial justice modified the judgment so that the two longer sentences ran concurrently.The defendant appealed alleging that the trial justice abused his discretion in not modifying the sentence for illegal firearm possession. This Court determined that under Rule 35, there was nothing unreasonable about the decision to make defendant serve an extra five years. 

Joseph Roe v. Louis E. Gelineau et al, No. 00-136 (April 12, 2002)

The victim alleged personal injury claims against a priest and the catholic church. The defendants alleged that the statute of limiations had expired. The victim alleged that under G.L. 1956 § 9-1-14, the statute was tolled because he was of unsound mind. The Court determined that while repressed recollection could qualify as an unsound mind disability sufficient, under § 9-1-19, to toll a limitations statute, the victim did not show enough evidence that his alleged repressed recollection was sufficiently relevant, reliable, and scientifically and/or medically established to require a hearing on whether it constituted unsound mind. 

State v. Juan Tilson, No. 00-432 (April 9, 2002)

The defendant alleged that the state engaged in prosecutorial misconduct because it brought a two-count information against defendant because he failed to plead guilty. The State's reasons for bringing the additional charges were not based on improper considerations, such as race or religion. Furthermore, the defendant was informed of the state’s intentions during negotiations.The Court concluded that there was no prosecutorial misconduct but questioned the State's action in holding defendant in jail for three weeks after failing to notify his attorney of the new information, and cautioned against such practice, absent justification.

State v. Adrian Bustamante, No. 01-116 (April 4, 2002)

The defendant was convicted of murder and conspiracy to commit murder. The jury determined the murder was committed with torture and aggravated battery.  The defendant subsequently filed a motion to reduce his sentence.  The defendant failed to meet his burden to succeed on a Rule 35 appeal.

Judith J. Oliveira v. Steven A. Lombardi et al; Michael R. Ayers v. Joseph A. Tiberi et al, No. 2001-27 & 2000-273 (April 3, 2002)

In case for negligent operation of motor vehicles, lessors of motor vehicles said they could not be vicariously liable fro a consensual operator’s negligence because they did not "own" the vehicles under G.L. 1956  § 31-33-6.  The Court held the lessors, as legal titleholders and registered owners, were "owners" under § 31-33-6. It was irrelevant whether the lessor was a long-term lessor or a short-term rental agency. G.L. 1956 § 31-34-4, making motor vehicle lessors vicariously liable for the vehicles' negligent operation, was not limited to entities in the business of renting motor vehicles, but made any owner liable. The statute's reference to "rented" rather than "leased" vehicles was of no consequence, and its application was not limited to short-term rental agencies. Relevant regulations required the lessors to provide proof of financial responsibility, showing they were to be an additional surety to satisfy a negligence claim.

Kevin A. Cahill v. William M. Gagnon, alias, et al  No. 2000-371 (April 2, 2002)

A motorist filed a personal injury action against a state transit authority and one of its bus drivers after he was injured in a motor vehicle accident. During a jury trial, the trial justice refused to charge the jury on the doctrine of spoliation.In addition, the trial justice refused to admit a police report into evidence because it was based on hearsay. Finally, the trial justice refused to allow the motorist to impeach the bus driver by showing that his safety record listed a total of 31 entries but did allow the motorist to ask the bus driver a general question about deposition testimony he gave where he admitted having only two or three accidents. The Court affirmed the various decisions of the trial justice.

Louis J. Giuliano v. Louis A. Pastina, No. 01-88 (March 29, 2002) (Corrected)

A shareholder sued a person who worked at the racetrack after he learned that the employee had allegedly participated in illegal betting. The motion justice decided that the employee did not owe a duty to the shareholder, that his conduct did not cause an injury to the shareholder, and that the shareholder's claim, if valid, belonged to the corporation and was a shareholder derivative action. Because the shareholder failed to comply with Rule 23.1 on derivative actions, the complaint was dismissed. The Court on appeal concluded that the shareholder's complaint disclosed no compliance with Rule 23.1, and therefore, was properly dimissed. Further, the motion justice did not abuse her discretion by denying the shareholder's motion for letters rogatory or by staying discovery.

Kevin J. Tierney et al v. The Department of Human Services, No. 01-342 (March 28, 2002)

The applicant for Medicaid benefits was found financially ineligible based on information from bank accounts.Accounts were held jointly with son and sister. The applicant died prior to her appeal from agency’s denial of benefits.The son and sister proceeded with the appeal. The Court concluded that the relevant issue on appeal was whether applicant had access to the funds in those accounts to pay the expenses of her last illness. There was no dispute she had such access. Thus, the appeal was denied and dismissed.

Eloise Branch v. William Quattrocchi, Jr., No. 00-518 (March 28, 2002)

The Court concluded that the best interest of the child standard would be employed when considering petitions to change the name of minor children. The family court should consider numerous factors in deciding what was in the child's best interest including the names of other members of the child's household, what the child's name was on the birth certificate, and the length of time that the child had used the surname. In this case, the family court failed to conduct the appropriate inquiry when granting a petition to change a surname.

Irving A. Strynar v. Jack Rahill, Treasurer for the City of Pawtucket et al, No. 00-247 (March 28, 2002)

The former detective sought damages for constitutional injuries after municipal officials allegedly improperly delayed granting him his request for injured on duty benefits. The Court concluded that the IOD statute was an exclusive remedy that barred detectives claims against municipal officials for intentional misconduct. The detective waived constitutional challenge for failure to raise it in his complaint.

John Paul Bernier v. Andrew Lombardi, No. 00-113 (March 27, 2002)

The tenant claimed retaliatory eviction.The trial justice ruled that the injunctive relief issue was moot, as the tenant had vacated the apartment. Based on her assessment of the evidence and witnesses, the trial justice found that the tenant's claim for damages lacked merit and that sufficient evidence existed to support a judgment for the landlord. The Court on appeal concluded that the trial justice did not err in revisiting the district court's decision, since the statute provided for a de novo review. The Court affirmed the trial justice’s findings.

State v. Gerald Marshall, No. 99-401 (March 22, 2002)

Defendant made numerous telephone calls to his estranged wife, seeking to reconcile their marriage, and, when his proposals were rejected, he became abusive. The Court held the clear language of the governing statute, G.L. 1956 § 11-35-17(a), required the State to prove beyond a reasonable doubt that at the time defendant initiated his telephone call to his wife, he did so for the intended purpose of threatening her or subjecting her to statutorily proscribed language. Therefore, the trial justice erred by instructing the jury that defendant's intent need not have existed when he initiated the telephone call. 

State v. Oscar Casas, No. 01-522 (March 18, 2002)

At the beginning of the trial, defendant moved for a mistrial when an inexperienced prosecutor referred to evidence that was the subject of an as-yet unruled upon motion in limine. The trial justice granted the mistrial.  The defendant then moved to dismiss the indictment against him, on grounds that he had been compelled to move for a mistrial by the prosecutor's misconduct. The Court declined to further extend the rule under which it would grant double jeopardy dismissals in cases where the prosecutor intentionally goaded a defendant into moving for a mistrial. There was no evidence that the prosecutor's statement was anything other than a mistake, although she should have known better, so the extreme relief of dismissal was not warranted.

State v. Jean Valcourt, No. 00-322 (March 14, 2002)

The Court rejected defendant’s various claims of error on appeal. The trial justice did not commit reversible error by refusing to disqualify a juror and declare a mistrial. The defendant waived the issue of the denial of his motion for judgment of acquittal, as defense counsel agreed that the time frame for the offense would be limited. The record disclosed that defendant posed a single objection to the extensive testimony of other assaults. An appropriate limiting instruction was immediately given by the trial justice. The trial justice did not err in admitting evidence about other assaults in the circumstances. Further, the trial justice appropriately sought to eliminate any undue prejudicial effects from the evidence by giving a limiting instruction several times over the course of the trial and during his charge to the jury.

State v. Leo Belanger, No. 00-419 (March 13, 2002) 

The Court rejected defendant’s various claims of error on appeal. First, the Court determined that the trial justice did not err in denying a motion for judgment of acquittal since it would require him to weigh evidence or pass upon the credibility of the witnesses. The defendant failed to object at the close of instructions and waived any objections. A medical report was admissible hearsay.  The defendant's statements, in which he sought to justify his criminal behavior, were probative of defendant's consciousness of guilt and were, therefore, relevant and admissible testimony. The evidence was more than sufficient to convince a jury of defendant's guilt beyond a reasonable doubt. A finding of violation of probation based on a lesser standard of proof, mere reasonable satisfaction that a violation had occurred, was clearly established.

Wladsylaw Sobanski v. Steven Donahue et al, No. 99-467 (March 13, 2002)

A police officer was attacked by a dog when he was investigating a prior dog attack.  He sued the landlords who raised the police officer's rule as a defense to the complaint. The Court deemed the rule to be dispositive of the appeal and fatal to the police officer's claim. The police officer clearly was aware that a dog was kept in the neighboring yard and that the dog had recently escaped and attacked a neighbor. Although he was neither called to the scene by the landlords nor injured on their property, both defendants were responsible for his presence in the neighbor's yard because they permitted a vicious dog to be housed on the premises.

Neil F. Keenan v. LA. Caroline Somberg, No. 00-203 (March 11, 2002)

The family court had subject matter jurisdiction over this paternity suit, even though the plaintiff was found not to be the father by DNA testing.The plaintiff failed to establish that the was the child’s de fact parent.The plaintiff and the mother never agreed that the he would be a parent to the child, nor did the mother hold him out to be the child's father. The plaintiff never resided with the mother, and presented no evidence establishing any indicia of parenthood. The family court justice did not abuse its discretion by concluding that it was in the child's best interests to deny visitation to the friend.

Elaina Malinowski, Individually and as Administratrix of the Estate of Michael Malinowski, a/k/a Michael Anthony Chaffee-Malinowski v. United Parcel Service, Inc., et al, No. 00-305 (March 11, 2002)

The mother's brought a wrongful death action against the driver of a truck that struck and killed her son, and the parcel service that owned the truck.The jury found in favor of the truck driver and the UPS. After the first appeal, a new trial was granted. A second jury found for UPS.The Court upheld the judgment and rejected the mother's argument that she should have been allowed to present evidence of the driver's actual speed as recorded on the tachograph in his truck, despite considerable evidence that it had not been functioning properly. Furthermore, the evidence simply did not show that the driver had been negligent as a matter of law.

Dianne Lecours v. Norman E. Lecours, No. 00-240 (March 8, 2002)

The husband was required to provide his wife with health insurance and carry enough life insurance to satisfy the mortgage according to a settlement agreement. The agreement was incorporated into but not merged into the parties' divorce. The wife brought a contempt proceeding to enforce the agreement. The husband argued on appeal that the the family court did not have jurisdiction over the contempt proceeding. The Court held that a family court's subject matter jurisdiction under G.L. 1956 § 8-10-3 reached all kinds of agreements in connection with divorce. Since the husband failed to object in the trial court to the new consent agreement, he was bound by the modified contract.

Lucinda Morra v. Daniel Harrop, No. 00-149 (March 6, 2002)

The trial justice struck the doctor’s expert testimony both on substantive and procedural grounds. On appeal, the Court concluded that the trial justice erred.  The expert witness testified that the father’s death was a suicide.  The trial justice compounded his error in striking the testimony by denying the motion for a brief continuance to permit the daughter to recall the doctor in an attempt to clarify his testimony and avoid the inevitable judgment as a matter of law.

In re Rule Amendments to Rules 5.4(a) and 7.2(c) of the Rules of Professional Conduct No. 00-436 (March 4, 20002) (Amended)

The Ethics Advisory Panel requested the Court to consider proposed amendments to the state rules of professional conduct and allow attorneys to share their court-awarded fees with nonprofit entities. The Court declined to do so because it would be at variance with the legislature's public policy and would condone criminal conduct by members of the bar, nonprofit corporations, and associations.

State v. Joseph M. Paul, No. 00-252 (February 28, 2002)

The defendant alleged on appeal that he did not knowingly and voluntarily waive his rights during the police interrogation, and that the admission of his confession was error. In the instant case, the evidence in the record amply supported the fact that defendant knowingly and voluntarily waived his rights. The trial justice and the reviewing court found absolutely no credible evidence which in any way suggested that the police officers mistreated, or otherwise created a coercive atmosphere at the police station. 

Dovenmuehle Mortgage, Inc. v. Daniel J. Antonelli, No. 00-332 (February 15, 2002)

The debtor purchased a mortgage from the company.His subsequent failure to pay taxes on the land permitted the city to sell the property at a tax sale. Both the company and the debtor received notice of the sale and failed to discharge the debt. The debtor alleged that the company had a duty to discharge the debt.The  Court rejected the argument, noting that pursuant to the contract, the company could choose whether to pay the taxes. 

Maria Tavares v. Deysi Barbour et al, No. 00-430 (February 15, 2002)

A child was injured crossing the street by a passing motor vehicle.The mother sued alleging that the driver of the vehicle that the child exited was negligent by discharging her daughter across the street from her destination.The Court rjected the argument, noting that the mother had duty to assist her daughter, since she exited the vehicle with her. Furthermore, the dirver had no duty snce she was legally parked.

Richard T. Nassa v. Hook-SupeRx, Inc., et al, No. 00-171 (February 15, 2002)

The employee sued the employer and some of his former co-workers for defamation, intentional infliction of emotional distress, and employment discrimination. The trial justice determined that his defamation claims were barred by the workers' compensation exclusivity provision of G.L. 1956 § 28-29-20. On appeal, the Court held that, even though injuries resulting from intentional torts were not excluded from the doctrine's coverage, defamation claims fell outside the exclusivity provision, as they allowed recovery for injury to interests that were not protected by the statute, which provided compensation for physical and psychological injuries, but not for injuries to intangibles, such as reputation.

In re Rule Amendments to Rules 5.4(a) and 7.2(c) of the Rules of Professional Conduct No. 00-436 (February 15, 2002) (Corrected)

Amico's Incorporated, d/b/a Pal's Family Restaurant et al v. Thomas Mattos et al, No. 01-118 (February 15, 2002)

The town of East Greenwich, enacted an ordinance that placed more stringent limitations on smoking in bars and restaurants than were provided under state statutes. A group of restaurant and bar owners challenged the ordinance as beyond the powers of the municipal body that enacted it. The Court upheld the ordinance as an authorized exercise of home rule powers pursuant to R.I. Const. art. 13, § 2. G.L. 1956 §§ 5-24-1, 3-5-5 specifically empowered local governments to license eating establishments and the sale of alcohol, and the ordinance related to the underlying purposes of both types of licensing authority. Furthermore, statewide legislation regulating smoking did not evidence an intent to occupy the entire field of smoking regulation, but only to set a regulatory floor that local governments were free to exceed.

State v. Luis Vega, No. 99-398 (February 14, 2002)

The defendant appealed after the trial justice issued an Allen instruction.  The Court ruled that by failing to object at trial to the instructions, defendant failed to preserve any inadequacies or errors and was precluded from raising such arguments for the first time on appeal. Finally, the trial justice did not err in denying defendant's motion for a new trial. He considered the evidence in light of his charge to the jury and concluded that defendant did in fact place his hand on the victim's breast, as alleged.

State v. Christopher Golembewski, No. 00-423 (February 14, 2002)

The Court reviewed a motion for new trial and determined that the trial justice erred in denying the motion by failing to follow the appropriate steps. After stating that he believed the jury verdict was against the weight of the evidence, the trial justice declared that a reasonable jury could have reached a guilty verdict. Furthermore, by instructing the jury that "a knife is a dangerous weapon," the trial justice relieved the prosecution of its burden of proving that the assault occurred with a dangerous weapon and thereby removed that element from the jury's consideration. 

William R. Macera, acting in his capacity as the Mayor of Johnston v. Mary Cerra et al, No. 00-80 (February 8, 2002)

The mayor had fired the employee from his position and the employee appealed. The trial justice found that the employee was the highway director and that the mayor did not have the authority to fire him. The mayor argued that the employee was the director of public works, and that the mayor had the authority to fire him from that position. The Court affirmed the decision of the trial justice. The mayor also argued that the trial justice erred when it refused to rule on his claim that the employee held a supervisory position within the town and was thus not entitled to union membership. The highway director was not a rank and file employee eligible for inclusion in the collective bargaining unit.

Rudolph Mottola v. Mark E. Cirello et al; Frank S. Jean et al v. Deana Chirico et al, Nos. 00-278, 00-250 & 00-251 (February 4, 2002)

The employee, while working for the State and driving a vehicle, had hit a pedestrian. The Court held that under G.L. 1956 § 9-31-12, upon certification that the employee-tortfeasor was acting within the scope of his or her employment and that the claim was not fraudulent, malicious, or the result of willful misconduct, the suit was to be deemed to be an action against the State. The trial justice appropriately substituted the State as the party defendant. However, it was not the province of the trial  justice to dictate how the attorney general elected to carry out the functions of his office and it was an abuse of discretion to order the attorney general to do anything. There was also no authority for the trial justice to direct defense counsel to withdraw his appearance. The trial  justice had also ordered that the injured person was not entitled to prejudgment interest on any award. The Court held that the issues of the damages cap and of the prejudgment interest were not before the trial court and it was an abuse of discretion for the trial  justice to enter orders relating to those issues.

State v. William Mendez, No. 00-459 (February 1, 2002)   

The defendant claimed that the hearing justice should have recused himself from the hearing, because during the judge's tenure as the public defender, a member of the public defender's office represented defendant at an event unrelated to his violation hearing.   The defendant also argued that testimony about the victim's identification at the scene was inadmissible hearsay. The Court rejected the appeal.

Richard C. Wilkinson v. The State Crime Laboratory Commission et al, No. 00-410 (January 31, 2002)

The plaintiff appealed his dismissal from his state job.The Court determined that when defendants declined to reappoint the employee to a limited-term position in 1996 and refused to retain him as a classified full-status state employee, they violated the merit system, which prohibited them from dismissing the employee from state service without cause to do so. 

State v. Joseph Boillard, No. 99-473 (January 31, 2002)

The defendant appealed alleging that the trial justice erred in refusing to sustain his objections to statements that the State made during closing arguments. The Court on appeal concluded that the State's closing statements were within the array of reasonable inferences that could have been drawn from the facts presented at trial, and they were neither extraneous nor inflammatory. The Court rejected defendant’s other arguments.

Francis Pellegrino et al v. The Rhode Island Ethics Commission et al, No. 00-132 (January 30, 2002)

During a budget crisis, Rhode Island abolished compensation for members of administrative boards, but reinstated a right to compensation, for a limited period, as to board members who performed adjudicatory functions. Years later, several former members of one commission sought to recover unpaid compensation and the state alleged that the statute of limitations had expired. The Court concluded that the state had waived sovereign immunity as to the period covered by the legislation reinstating a right to payment. Since the claim was unlike anything covered by a specific statute of limitations, the 10-year catchall statute of limitations applied.

Robert Bailey et al v. Algonquin Gas Transmission Company et al, No. 00-315 (January 30, 2002)

A default judgment was entered against an engineering group after its attorney failed to respond to a request for production of documents.  Evidence showed that the group's attorney received documents sent by plaintiffs but he did not respond to them, and he blamed his conduct on problems with alcohol abuse. The Court concluded that although the engineering group was not aware that its attorney was mishandling the case, the trial justice did not abuse his discretion by refusing to vacate the default judgment pursuant to R.I. Super. Ct. R. Civ. P. 60(b)(6).

In re Joseph S. et al., No. 00-357 (January 29, 2002)

The mother’s parental rights were terminated.  She had received psychiatric and counseling services from numerous institutions and organizations. Despite the plethora of services, the mother failed to achieve appropriate insight into her illness and refused to recognize her need for medication, preferring instead to remain in a devastating cycle of violent behavior followed by institutionalization or hospitalization, as recognized by the trial justice. The best interests of both children required a termination of the mother's parental rights and for the children to remain with their foster family in a pre-adoptive home. Both children had been in the state's care and custody since birth and had never resided with their mother. 

Purvis Systems, Inc. v. American Systems Corporation, No. 99-290 (January 24, 2002)

The parties had a contract disagreement and submitted the issue to arbitration. The arbitrator issued an award in favor of the subcontractor which included, per the subcontract, the fees and expenses of the American Arbitration Association (AAA) and the fees and expenses of the arbitrator. The arbitrator subsequently modified the award to provide that expenses of the arbitration include both reasonable attorney's fees and the costs of the AAA prior to issuing a supplemental award. The Court held the trial  justice erred in vacating the supplemental award since the subcontract provided that any controversy was to be settled by binding arbitration in accordance with the rules of the AAA. The parties agreed that all expenses of the arbitration were to be assessed against the losing party, and those expenses could be added to any judgment. The AAA rules, the arbitration clause in the subcontract, and the contractor's own demand for arbitration vested the arbitrator with broad authority to interpret the terms of the subcontract.

State v. Efrain Otero, No. 00-187 (January 24, 2002)

The defendant appealed after the trial justice denied his motion for new trial.  The trial justice  did not err in denying defendant's motion for a new trial, as the evidence was legally sufficient to convict defendant. There was ample circumstantial evidence to support a finding that defendant brought a gun to the bar and carried out a preconceived plan to kill the victim. This evidence included eyewitness testimony that defendant had what appeared to be a gun when he approached the victim, and only one of the victim's wounds was from close range. The State's witnesses were unequivocal in describing defendant as the aggressor.

Rhode Island Employment Security Alliance, Local 401, S.E.I.U., AFL-CIO et al v. State of Rhode Island, Department of Employment and Training, et al, No. 2000-302 (January 18, 2002)

The state employees and union alleged that, in violation of Conn. Gen. Stat. § 36-4-9, the state employees were placed in lower job classifications and pay grades than other state workers in positions with substantively similar authority, responsibility, character of work, and working conditions. The Court rejected the appeal because the state personnel administrator was statutorily mandated to provide the relief plaintiffs were seeking. The state employees did not exhaust this administrative remedy. In addition, seeking the administrative remedy would not have been futile, as eight of the state employees actually received favorable upgrades at the administrative level.

State v. Keith Nunes, No. 2000-449 (January 14, 2002)

On appeal, defendant argued that the trial justice erred by failing to instruct the jury on the lesser-included offense of second-degree murder and by failing to grant his motion for new trial. The case did not invite a second-degree murder instruction because there was no evidence that the premeditation was either momentary or less than momentary. The record showed that after defendant's two altercations with the group at the boardwalk, he drove to the Silver Lake area to retrieve a gun. Then defendant drove back to the boardwalk searching for the men. As defendant found the group, he drove near, stopped his car, raised his torso out of the driver's side window, and fired five rounds into the crowd.   The defendant then fled the scene. In addition, the trial justice did not err in rejected defendant’s motion for new trial.

In re Jared S. No. 2000-447 (January 11, 2002)

On appeal, the Court affirmed the family court decision to terminate parental rights. The termination was based on their cruel and abusive treatment of their first child, coupled with their lack of remorse and their refusal to accept responsibility for his abuse caused the termination. The family court's capacity to terminate the parents' parental rights based on those factors was proper. 

State v. Ronald L'Heureux, No. 2000-185 (January 10, 2002)

The defendant argued the trial justice erred in determining the prosecutor had turned over the police report as soon as he learned of its existence. Additionally, defendant asserted that the trial prosecutor knowingly used perjured testimony in violation of defendant's due process rights, the State violated his due process rights by failing to disclose photographs of the vandalism to his home, and his motion for a new trial should have been granted in the interest of justice. The Court on appeal determined that the hearing justice complied with the applicable standard employed when ruling on a motion for a new trial based on newly discovered evidence. The Court also noted that defendant waived his claim based on perjured testimony, but even it not waived, the claim lacked merit since nothing in the police report supported his contention. As to the photographs, the supreme court held that defendant cited no authority to support his contention, and none existed. Finally, the Court concluded that the hearing justice did not err in denying defendant's interest of justice motion for a new trial since nothing in the verdict was inconsistent with the law, evidence, or jury instructions.

Charlene L. Pacheco v. Norman Bedford, No. 2000-230 (January 10, 2002)

The father was in prison for child sexual molestation convictions. He argued that, under the Americans with Disabilities Act (ADA), 42 U.S.C.S §§ 12101-12213, he should have been provided court-appointed counsel. The trial magistrate had earlier continued the case and referred the father to the law school clinic for help. There was no evidence that the father contacted the law school or any other counsel. A judge in a separate case found that the father was capable of representing himself in that case. The Court held that an ADA plaintiff had no absolute right to appointed counsel, and the trial justice could consider the father's efforts to retain counsel and his ability to represent himself in determining his request for appointed counsel. Mere incarceration, alone, did not justify the denial of visitation rights. However, the trial magistrate found that there was no significant bond between the father and the child, that the relationship was not harmonious and that the father had been convicted of a crime victimizing a child. The trial magistrate and the trial court chief judge did not abuse their discretion in terminating the father's visitation rights.

State v. Julio Torres, No. 2001-220 (January 10, 2002)

The defendant shot and wounded his former girlfriend. Prior to the shooting, defendant had threatened both the victim and her new boyfriend. Defendant argued that R.I. R. Evid. 404(b) precluded admission of evidence of the threats. The Court held that a threat without more was not a crime, and thus, only when evidence of a prior threat made by an accused was both prejudicial and irrelevant did it become inadmissible. Otherwise, evidence of a threat made by an accused to an intended victim was admissible. The threats were made within two days of the shooting, and were relevant. Within minutes of the shooting, the victim's young children said to others that defendant, their father, did it.  The defendant argued that the statements were hearsay and thus inadmissible. The Court found that the statements were admissible under the excited utterance hearsay exception. Finally, the trial justice did not err in admitting incriminating statements made by defendant immediately after his arrest. The Court  held that the trial justice did not err in finding that defendant had been given and waived his Miranda rights prior to making the statements.

Norman Laurence v. Russell Sollitto et al, No. 2000-307 (January 9, 2002)

The inmate was represented by several attorneys in the course of his prosecution and conviction on murder charges, and he subsequently sued several of them. The attorney in the instant case represented the inmate only briefly, at a suppression hearing. The Court, after noting that the attorney's motion to dismiss had become a summary judgment motion when he attached extraneous materials to it, agreed that the inmate's claims were insufficient. A court-appointed attorney or public defender did not act under color of state law for purposes of 42 U.S.C.S. § 1983 liability. Furthermore, the inmate could only recover money damages, which he was in fact seeking, if his conviction had been reversed, expunged, or invalidated, which was not the inmate's situation. Finally, not only was there no showing of negligent representation in fact, but the inmate failed to allege that the attorney's purported negligence caused his conviction.

State v. Paul Calenda, No. 99-565 (January 8, 2002)

The defendant argued the trial justice abused his discretion by excluding evidence of the victim's drug use. The supreme court held there was no abuse where the victim testified he had not used drugs the day of the altercation, and evidence of the victim's drug use at another time was irrelevant and prejudicial. The defendant also argued the trial justice abused his discretion by preventing any inquiry into whether defendant had used physical force in the past to collect rents. The supreme court held the trial justice did not abuse his discretion in concluding that defendant's past actions were irrelevant. The defendant next argued the trial justice erred by admitting a tenant list as a business record because it lacked adequate foundation. The supreme court found that the trial justice did not err since the foundational requirements were met by a combination of defendant's and the property manager's testimony. Finally, defendant argued the trial justice erred by denying him a continuance and by denying his motion to reopen the case. The supreme court found that the trial justice appropriately denied defendant's motion to reopen where defendant had simply made a tactical decision.

State v. William Shinn, No. 2000-211 (January 7, 2002)

The defendant, a former corrections officer, was charged with assault with a dangerous weapon and conspiracy after he allegedly beat an inmate. At defendant's trial, the prosecution offered three photo identification logs which police had used during their investigation. The defendant  did not object to the admission of the logs and they were admitted into evidence. After all evidence was admitted and while the jury was deliberating, the jury asked the trial justice about handwritten notes that appeared in the logs and the court discovered for the first time that police detectives had made notes in the logs while interviewing a witness who did not testify. The trial justice told the jury that the notes were hearsay and asked them if they could disregard the notes. After the jury responded that they could disregard the notes, the trial justice denied defendant's motion for a mistrial and allowed the jury to reach a verdict. The state supreme court held that, although the trial justice had a long discussion with the jury and attempted to cure any prejudice, the case was unsalvageable and the trial justice violated defendant's right to a fair trial by denying his motion for a mistrial.

Associated Builders & Contractors of Rhode Island, Inc. et al v. Department of Administration, State of Rhode Island, No. 2001-40 & 2000-514 (January 4, 2002)

In November 2000, the State of Rhode Island solicited bids for construction of a convocation center and ice facility. Contractors who chose to bid on the project were required to accept the terms of a project labor agreement (PLA) which the State had negotiated with an organization that represented labor unions. Under the terms of the PLA, successful bidders were required to hire employees through union hiring halls and to contribute to union benefit funds. Nonunion contractors filed suit challenging the use of a PLA. The state supreme court held that (1) nonunion contractors had standing to challenge the State's action even though they did not bid on the contracts and the issues they raised were not moot; (2) PLAs were not illegal per se under the State Purchases Chapter (Act), R.I. Gen. Laws tit. 37, ch. 2 (1956); but (3) under state law, state contracting authorities could make a PLA a condition of a bid specification in a public contract only after they had established that the size and complexity of the project was such that a PLA supported the goals and objectives of the Act and they had conducted an objective, reasoned study using reviewable criteria.

Mary Ryan et al v. The Roman Catholic Bishop of Providence, A Corporation Sole et al, No. 2000-102 (January 4, 2002)

A woman filed a civil action against a priest, the church and diocese where he worked, and church officials, alleging that she was sexually abused by the priest while she was a minor. While the civil action was pending, the priest was convicted of first-degree sexual assault and a presentence investigation and report (PSR) was completed. Thereafter, the woman sought access to the PSR because she believed the priest may have told the investigator that church officials knew he had sexually abused others and transferred him because of his behavior. The priest filed a motion for a protective order, arguing that the contents of the PSR were confidential. While the case was on appeal to the state supreme court, the priest died and his estate was substituted as a party. The state supreme court held that, although its prior holding that PSRs were confidential remained inviolate, the case presented an extremely narrow factual circumstance which warranted an exception to that rule and it was appropriate for the trial justice to examine the PSR in camera to determine if the information sought was contained in the PSR and, if so, whether the potential harm to the priest was outweighed by plaintiff’s need for the document in light of her ability to discover the information from other sources.  In this case, the Court concluded that the trial justice properly permitted the PSR to be discoverable, since because there was no other way for the plaintiff to discover the information, especially since the priest was no longer living.

In re DeKarri P., No. 2000-495 (December 28, 2001)

When the child was born, the father was in prison. The mother relinquished her parental rights. For over a year, the father refused to have contact with his child. The agency filed a termination of parental rights on the basis that the child had been in custody for more than 12 months, his parents had abandoned or deserted him, the father was unfit by reason of imprisonment, and it was unlikely that the child would be returned to his care within a reasonable period. On appeal, the father claimed that the trial justice erred when it found that the father abandoned the child. The Court found that because the father refused to contact the child for over six months, the child was abandoned under R.I. Gen. Laws § 15-7-7(a)(4) (1956). As a result, the agency had no obligation to make reasonable efforts to reunify the father and child.

Pawtucket Mutual Insurance Company v. Barry Gay, et al, No. 2000-336 (December 28, 2001)

The vehicle in question was reported stolen, and when recovered it was determined to be a constructive total loss. The insurance company offered to pay the insured the actual cash value of the vehicle at the time it was stolen, but the insured sought to have the company pay to repair the vehicle. The defendant argued that the trial court erred in interpreting the policy, and that the company did not have an absolute right to either repair the vehicle or pay its replacement value. The Court held the policy language on this issue was clear and unambiguous. The policy provided that the company had the option to pay its insured for the loss in money, to repair, or to replace the damaged property, or to return the stolen property to the insured and pay for any resulting damage. The policy language was clear that it was the insurer, not the insured, who had the right to elect one of these options. The insurer's liability for payment of the loss, however, was limited to the lesser of either the actual cash value of the stolen or damaged property or the amount necessary to repair or replace the property, neither of which could exceed $ 35,000.

State v. Walter Truesdale, No. 99-338 (December 28, 2001)

While ransacking an apartment for drug money, defendant murdered the occupant, and returned across the hall to his girlfriend's apartment. The police suspected him almost immediately and interviewed him extensively in an attempt to obtain a confession. They also obtained permission from his girlfriend to tape-record their telephone conversations. Both sides questioned the police about the interviews. When the police stated that "it was a vicious killing," defendant finally objected and requested a mistrial. The Court  held that defendant opened the door for the comment by questioning the police about the interviews. Therefore, there was no mistrial. Given the importance of the uncoerced, candid confession in the tape recording, the trial justice did not overlook material evidence when it failed to mention the testimony of defendant's witnesses.

Carla Christine Stone v. Green Hill Civic Association, Inc., et al, No. 2000-290 (December 28, 2001)

The owner claimed that members of the association and other defendants had been using the beach without seeking her permission to do so, and that they were otherwise asserting a right to use her property. The trial justice found that defendants failed to present any evidence that they used the beach under a claim of right. The Court found that defendants indicated that area residents had used the beach as far back as 1928. The defendants contend that, to use the beach, they never asked permission of the owner or her predecessors in title or their family members. The owner, however, contended and provided evidence that, if credited, would indicate that the previous owners of the property had granted permission for the use in question. A prior owner testified that the association had asked permission to place a lifeguard chair on the beach in question. The prior owner also testified that people who used the beach asked permission before doing so. The Court held that genuine issues of material fact existed, depending largely on credibility, about whether the use of the beach by the association and its members was permissive.

Eugene E. Wigginton v. Reginald A. Centracchio et al, No. 2000-164 (December 26, 2001)

When a Rhode Island army national guard officer was forced to retire after 20 years, he sued the adjutant general in federal court, arguing that under R.I. Gen. Laws § 30-3-13, as a member of a staff corps or department, he was entitled to retain his position, unless removed for cause, until age 60. Noting that R.I. Gen. Laws § 30-3-1 required the organization of the state army national guard to mirror that of the United States Army, the Court, on certification of the federal appeals court's question, held that the term "staff corps and departments" had not had any meaning since a reorganization of the United States Army six decades earlier, and that it had been carried over into the instant statute by inadvertence. The Court therefore declined to attribute any modern meaning to the term, as this would have led to an absurd result

Claude E. Hampton v. State, No. 99-385 (December 24, 2001)

When the probation violator's probation was revoked, neither the hearing justice nor his own attorney notified him of his right to appeal that adjudication. The probation violator asserted that this failure violated his constitutional right to due process, and that his attorney's failure to so notify him was ineffective assistance of counsel. The Court held that a probation-revocation hearing did not call for the full panoply of rights normally guaranteed to criminal defendants. The rights guaranteed by R.I. Super. Ct. R. Crim. P. 32(a)(2) were inapplicable to probation-violation hearings. Neither any statute nor the United States Constitution gave probation violators the right to be notified about the right to appeal violation adjudication. The defendant was entitled to effective assistance of counsel at a probation violation hearing, and a defense attorney's failure to disclose to his or her client of a right to appeal a probation violation adjudication could not be justified as a strategic decision. However, the probation violator was still obligated to show prejudice from his counsel's failure to inform him of his right to appeal, and failed to do so.

Thomas A. English et al v. Kenneth D. Green et al Bruno Formato v. Kenneth D. Green et al, No. 99-548 (December 21, 2001)

The Court held that the trial justice's grant of a new trial after determining that the jury's apportionment of negligence was against the fair weight of the evidence failed to do substantial justice to the parties, and that the damage awards shocked the conscience of the court was not error. The trial justice did not misconceive or overlook material evidence by finding that reasonable minds would agree that the driver was at least partly negligent. The trial justice also did not err in concluding that the evidence did not support the jury's assessment of damages. The jury's award to one injured party was against the fair preponderance of the evidence in light of his pain and suffering and the restrictions that his injuries placed on his day-to-day activities. Similarly, reasonable minds could not have concluded that the other injured party was entitled to less than his medical expenses for a permanent injury. There was sufficient evidence suggesting that the trial justice determined that the driver's negligence was a proximate cause of the accident, and that the injuries proximately resulted therefrom.

RICO Corporation v. Town of Exeter et al, No. 2000-86 (December 21, 2001)

The company bought a piece of property from a third party, believing that there was a nonconforming earth removal use on the property. When the company attempted to renew its gravel bank license, the town asked the company to show cause why it should not issue a cease and desist order or otherwise review, limit, or condition the company's current operations. The company filed a petition for a declaratory judgment and for injunctive relief and the town filed a counterclaim, asserting that the company's use of the property violated various town ordinances and challenging the existence and validity of the company's alleged nonconforming use of the property. Because the issue raised by the town challenging the existence of the alleged nonconforming use constituted a material issue of fact, the motion hearing justice was precluded from acting upon and deciding the parties' respective cross-motions for summary judgment. The proper resolution of that material fact was essential to support the validity of the trial justice final judgment. Its absence compelled the Court to vacate the final judgment order.

State v. Irving Briggs, No. 99-263 (December 19, 2001)

The defendant argued on appeal he was deprived of his Sixth Amendment right's to counsel and to a fair trial, and the trial justice erred by failing to instruct the jury on the lesser included offense of larceny. The Court determined an examination of the totality of the circumstances demonstrated defendant validly waived his right to counsel. The Court reasoned the record showed defendant wished to place the outcome of the trial in his own hands, fully aware of the risks involved. In addition, the Court found there was an "actual and adequate dispute" concerning the existence of force and defendant was entitled to the larceny instruction. However, the record reflected that defendant took the stand and admitted to committing larceny. Accordingly, the Court concluded there was no dispute about defendant's guilt on each of the larceny elements. However, the Court also concluded the tenor of the trial justice's  questioning contained prejudicial influences, and when reviewed together, prevented the jury from engaging in its independent fact-finding role.

Michael L. Martinelli v. Frank L. Hopkins, Jr., et al, No. 99-540 (December 18, 2001) Corrected

The injured party was severely injured when a rotten tree fell on him while he was attending an outdoor festival hosted by the property owner. The city issued a license for the party, which provided that the property owner had to provide adequate portable toilets and private security forces. Unlimited free beer was provided to the attendants. The property owner underestimated the number of toilets needed, and failed to hire adequate security. The tree fell on the injured party when several other people attempted to cross a fence which was attached to the tree. The Court held the trial court properly denied the city's motions. The trial justice clearly exercised his independent judgment and denied the city's motion for a new trial. He found that the city, although acting in a governmental function when it issued the license, had acted in an egregious manner. The Court held the trial justice properly determined that the egregious conduct exception to the public duty doctrine applied to the city. The record revealed that the city knew that attendance at the festival had risen sharply, that free beer was provided, and unruly crowds presented safety risks.

Sea Fare's American Cafe, Inc. et al v. Brick Market Place Associates et al, No. 2000-324 (December 18, 2001)  Corrected

The lessee rented space for the lessee's restaurant from the lessor. Under the lease, the lessee agreed to purchase inventory that was already on the premises, and the lessee's share of the rent was to decrease if the rentable space within the property increased. Prior to the lessee occupying the rental property, some of the inventory purchased by the lessee was removed. The lessor said it would compensate the lessee for the loss and never did so. The lessor began leasing out additional parking spaces, thereby increasing the property's rentable space, without reducing the lessee's rent. The Court found that the trial justice erred in granting summary judgment on the rentable space issue, because the lease was ambiguous as to whether the parking lot was included within the lease property. The trial  justice did not err in finding for the lessee on the missing inventory issue and in calculating the damages of the missing inventory. In calculating the damages for the missing inventory, the trial justice was permitted to rely on the testimony of the lessee, who had 10 years of experience in purchasing such equipment.

John Anderson v. Dennis Botelho et al; Kenneth Longwill v. Donnis Botelho et al; Deborah Botelho et al v. Evelyn Scire, No. 2000-17 (December 17, 2001)

The 1st driver allegedly turned suddenly in front of the 2nd driver and his passenger, causing the 2nd driver to stop and causing the 3rd driver, who had his daughters with him, to rear-end the 2nd driver's vehicle. The 2nd driver, the passenger, and the two daughters were injured. The 3rd driver filed for bankruptcy after the accident and became judgment-proof. The trial justice ordered the parties not to refer to the bankruptcy to prevent prejudice. Despite the caution, the 1st driver's counsel made several references to the 3rd driver being immune from suit. The 1st driver's theory was that she was only sued due to the 3rd driver's judgment-proof status. The trial justice granted the new trial based on the comments. The 1st driver argued on appeal that the 3rd driver's bankruptcy was relevant to witness credibility and should not have been excluded and that the new trial was erroneously granted. The Court held that references to the bankruptcy were properly excluded as prejudicial to the jury's ability to assess the parties' comparative negligence. The new trial was properly granted, as disclosing the 3rd driver's judgment-proof status tainted the verdict.

Lou Ann Lauro v. Kenneth G. Knowles, M.D., et al, No. 2000-223 (December 14, 2001)

The doctor performed a procedure on the patient to alleviate carpal tunnel syndrome in her right wrist. During surgery, an anesthesiologist damaged the patient's eye. The patient sued the doctor for failure to properly supervise the anesthesiologist and for failure to warn her of the risks of damage to her eye. The state supreme court found that the doctor submitted affidavits in support of his proposition that there was no genuine issue of material fact relative to the doctor's duty to inform. His affidavits established the extremely low risk of corneal abrasion and the even lower risk of long-term impact. Because the patient failed to submit opposing affidavits or other evidence, the grant of summary judgment was proper.

Gerard T. Ouimette v. State, No. 2000-131 (December 14, 2001) 

The defendant pleaded nolo contendere to robbery in 1958 and to amended charges of assault with a dangerous weapon and conspiracy in 1976. His 1981 petition for post conviction relief was denied. Thereafter, a federal court sentenced him to life imprisonment without parole. Another petition for post conviction relief was denied. The state supreme court held that defendant did not overcome the presumption of regularity in the prior proceedings. He failed to prove that his 1958 plea was not entered willingly and knowingly. Because he could have raised the challenge in prior proceedings, the issue of voluntariness was barred by res judicata. Rather than arguing to the trial justice that his counsel's performance in 1976 was deficient and ineffective, he merely filed a post-decision affidavit by his attorney, which was insufficient to support a claim of ineffective assistance of counsel.

State v. Angelo Ramirez, No. 99-306 (December 14, 2001)

The defendant was convicted of, inter alia, assault with a deadly weapon and assault with intent to murder after he shot a child while involved in a high-speed chase with another vehicle. The Court held that the jury's verdicts on the two charges of assault with a dangerous weapon were not legally inconsistent since two of the intended victims were not standing next to each other; rather, one was out in the open while the other was standing some distance away. Although testimony varied as to specific facts, the evidence was sufficient to have enabled the jury to conclude defendant's guilt beyond a reasonable doubt. It was reasonable to infer that defendant committed an assault with intent to murder when he fired several successive gunshots on a busy highway from out the window of his speeding car.

Harvey Realty v. Killingly Manor Condominium Association et al, No. 2000-157 (December 14, 2001)

The buyer purchased four condominium units in a tax sale and later sought to foreclose the association's right of redemption on the units. The association claimed the underlying tax sale was invalid because it did not receive proper notice. The state supreme court held that although the tax sale arguably affected the association's due process rights, it did not meet its burden in showing an allegedly defective advertisement. The association did not qualify for the statutory notice because it was not the taxpayer. However, it was entitled to notice as an interested party. Because it received notice by certified mail, the constitutional requirement was satisfied.

Delta Airlines, Inc., et al v. James T. Neary, Jr., in his capacity as Tax Assessor for the City of Warwick, No. 2000-194 (December 7, 2001)  (Corrected)

The airline's  lease provided that any leasehold improvements became the property of the airport corporation that leased the airport property from the State. The Court found that the airport corporation was exempt from the municipal taxation at issue in the instant case, under R.I. Gen. Laws §§ 42-64-20(b), 42-64-7.1(b). The Court found that the tax-exempt status of leased property was governed by the status of its owner. Therefore, property owned by a tax-exempt entity was exempt even when the property was in the possession of a non-exempt lessee. Accordingly, the airlines, in the instant case, were not liable for municipal taxes from which the lessor that owned the property was exempt, regardless of whether the owner was considered to be the airport corporation or the state. The airline's 17-year lease did not extinguish the property's exempt status and did not produce a taxable event. The statutory and common law rules regarding the allocation of the tax burden between a life tenant and a remainderman did not constitute a source of taxing authority, and, in fact, were not relevant since the property was exempt from taxation in the first instance.

State v. Steven Eason, No. 2000-242 (December 7, 2001)

The defendant argued on appeal the trial justice erred in refusing to vacate his plea because: (1) the plea was not knowing, voluntary, and intelligent; (2) the refusal to vacate the plea violated defendant's Sixth Amendment right to represent himself; and (3) the trial court's failure to inquire whether defendant waived his right to counsel before arguing his pro se motion to vacate his plea violated defendant's Sixth Amendment right to the assistance of counsel. The Court noted defendant did not offer any evidence that he did not intelligently and understandingly waive his rights. In short, the Court found no basis to conclude that the trial court abused its discretion in denying the withdrawal motion. Further, the Court noted defendant conceded he was advised on multiple occasions of his right to represent himself and he declined to do so up until the time he argued his motion to vacate his plea. Under these circumstances, the Court concluded defendant's Sixth Amendment right to self-representation was not violated. Finally, the Court concluded defendant was represented by counsel at the plea withdrawal hearing.

In re Shanelly C., No. 2000-352 (December 7, 2001)

The child was committed to an agency's custody after she was found to have been abused by the mother. During the five years prior to the termination, the agency provided the mother with individual counseling, parenting classes, a psychiatric evaluation, parent-child assessments, and biweekly visitation. Although the mother participated in some of the offered services, she failed to complete any of the three reunification case plans developed by the agency. The mother refused to continue her visits because the agency insisted on either the use of the English language during visitation, or, if the mother persisted in speaking only in Spanish, that the visitation would occur with an interpreter present. The mother had no further contact with the child in person or through letters or phone calls after December 1998. R.I. Gen. Laws § 15-7-7(a)(4) (1956) provided that an abandonment of the parent-child relationship occurred when there was a lack of communication or contact with the child for at least six months. The Court  held the mother's blatant refusal to visit her daughter unless she could control the environment supported the finding of abandonment.

State v. John Nania, No. 99-240 (December 7, 2001)

Upon review, the Court found defendant's arguments to be without merit. The trial justice heard the testimony of the witnesses, evaluated their demeanor on the witness stand, and decided which witness was worthy of belief.  The defendant failed to provide the Court with any basis for disturbing the trial justice's conclusion that the complainant was the more credible witness. The trial justice did not err in restricting defendant's cross-examination of the victim. Credibility determinations rested with the trier of fact, and the issue of the witness's veracity was reserved for the fact-finder. The trial justice satisfied both R.I. Gen. Laws § 12-19-9 and R.I. Super. Ct. R. Crim. P. 32(f); defendant's counsel was provided an opportunity to address the hearing justice before his decision on the ultimate issue, whether defendant had violated the terms and conditions of his probation. No error was committed, therefore, by ordering the suspension of sentence to be lifted and the sentence to be served on a single felony case.

Stanley-Bostitch, Inc. v. Regenerative Environmental Equipment Co., Inc., et al, No. 2000-284 (December 6, 2001)

On appeal, the equipment company argued that the motion justice committed an error of law when she determined that the price-adjustment clause was not part of the parties' contract. The original proposal and a November 9 purchase order were not executed at the same time. Because the manufacturer did not sign or return the equipment company's confirmation, the manufacturer did not assent to the arbitration clause, and thus the original proposal was not incorporated into the parties' agreement. That reasoning was also true for the price adjustment clause at issue. The original proposal was not incorporated by reference into the contract. The price differential at issue was in excess of $ 99,000. That figure was approximately 10 percent of the initial purchase order. Consequently, the price-adjustment was so significant that, as a matter of law, the clause was a material alteration of the contract under R.I. Gen. Laws § 6A-2-207(2)(b).

Domenic Murino, Jr. v. Progressive Northern Insurance Company, 2000-219 (December 5, 2001)

The insurance company contended that its liability was fixed by the insurance contract, which limited its UM coverage to $ 50,000, that it had paid the policyholder $ 50,000, and refused to pay the remainder of the arbitrator's award, which included prejudgment interest over and above the UM limit. The Court held that the facts of the instant case bore a striking resemblance to the facts of the Sentry decision. The policyholder, after receiving the limit of the tortfeasor's insurance policy coverage, made a claim against his own insurance company for UM benefits. His claim was submitted for arbitration, and the arbitrator was requested only to determine the amount due to the plaintiff under his UM coverage. The arbitrator was asked to determine only the amount that the insurance company was required to pay to the policyholder under his UM policy. The Court held the Sentry decision controlled, and it remained the law that prejudgment interest in excess of policy limits could be awarded when an arbitrator was asked to determine only the amount that a plaintiff was entitled to recover in UM benefits from an insurance company.

Lamphone Vorgvongsa v. State of Rhode Island, No. 2000-152 (December 3, 2001)

The defendant and co-defendant both had guns and chased after the victim, firing their guns at him. The victim was fatally shot in the back. A test of the co-defendant's gun, compared with the fatal bullet, confirmed that the bullet that killed the victim had not been fired from the co-defendant's gun.  The defendant claimed that his private, and prominent, defense counsel provided ineffective assistance of counsel. The Court disagreed. Defense counsel properly refused to introduce a ballistics report from a defense witness, because the report of the defense witness indicated that it was defendant's gun that fired the fatal bullet. Defense counsel did not err in failing to move for a mistrial based on remarks made by the prosecutor in closing arguments, because the prosecutor's remarks constituted fair and vigorous comment upon the evidence. The prosecutor's decision not to impeach one of the State's witnesses, based upon her testimony in the co-defendant's trial, was a reasonable tactical decision.

John J. Mcvicker et al v. Travelers Insurance Company et al, No. 2000-205 (December 3, 2001)

The defendant moved to dismiss the declaratory judgment action under R.I. Super. Ct. R. Civ. P. 12(b)(6) for failure to state a claim for which relief could be granted. The motion justice granted defendants' motion because she concluded that R.I. Gen. Laws § 27-7-2.1 was clear as it related to property damage claims. On appeal, the insured parties argued that to require an insured to provide the name and address of an unknown hit-and-run driver constituted a misinterpretation of R.I. Gen. Laws § 27-7-2.1(e) and violated public policy. The Court held that identifying data about hit-and-run drivers must be submitted to recover on uninsured motorist property-damage claims. The Court reasoned that requiring an insured to present some means of identifying an uninsured or underinsured hit-and-run driver for purposes of recovering on property-damage claims was a rational statutory limitation to afford insurers financial protection against potentially fraudulent claims. In addition, because R.I. Gen. Laws § 27-7-2.1 was clear and unambiguous, the Court found there was no need for judicial construction to avoid an apparent inconsistency in the statute.

Carmel Absi, D.D.S. et al v. The State of Rhode Island Department of Administration et al, No. 2000-298 (December 3, 2001)

The dentists and dental hygienists signed a series of one-year contracts with the corrections department to provide dental services for inmates. The issue for decision was whether the dentists and dental hygienists were within the state merit system or whether, pursuant to R.I. Gen. Laws § 37-2-72, they were contract employees. The Court found that they were not state employees within the State Merit System Act, R.I. Gen. Laws § 36-3-1 et seq. The dentists and dental hygienists qualified as independent contractors, because the agency and officers did not exercise control over the methods of dental treatment. The conditions for hiring dental consultants as independent contractors under R.I. Gen. Laws § 37-2-72 were met. The agency and officers demonstrated a need for the dentists and hygienists' services and an absence of state personnel to perform the work.

State v. Harold A. Hazard, No. 98-237 (December 3, 2001)

During trial, defendant tried to elicit testimony of the victim's bias and state of mind. He also tried to introduce evidence of his state of mind when he attempted suicide. The Court held that the evidence was cumulative hearsay, and could not be used to show why or how the state of mind was induced. The defendant  failed to object to the removal of a juror mid-way through the trial or to show how he was prejudiced. The juror knew a witness but was unable to say whether it would affect her decision. He claimed he had a right to be present when the court questioned the juror in chambers. He failed to preserve the issue. In any event, his attorney was present during the conference and expressly agreed to the juror's excusal.  The defendant had no right to be present at a stage of the trial in which his guilt or innocence was not being adjudicated.

State v. Joseph Fillion, No. 00-456 (November 28, 2001)

The defendant argued on appeal that the trial justice erred by not allowing cross-examination of the victim about, inter alia, her plans to write a book about her experiences. The Court rejected defendant’s argument and held that denial of cross-examination was not automatically deemed error and found that the jury would not have viewed the victim's testimony differently had the cross examination been allowed. The Court similarly rejected defendant’s other arguments and affirmed the conviction.

Ernest Barone v. Martha C. O'Connell, No. 2000-275 (November 28, 2001)

The parties divorced and their final divorce decree ordered that land owned by them as tenants by the entirety be sold and the proceeds divided equally. No buyer could be found so the husband decided to pay off the mortgage, taxes and maintenance expenses. He sued the wife for equitable contribution of half the maintenance expenses. The Court on appeal concluded that the husband had sued in the proper court. Once all judgments directly related to the divorce had been entered, the family court no longer had jurisdiction. Because the divorce decree entitled each party to half the proceeds when the property was ultimately sold, the husband established his right to seek equitable contribution in the amount of half the expenses required until sale could take place.

Rollins Hudig Hall of Rhode Island, Inc. v. R. Gary Clark, Tax Administrator Frank B. Hall of Rhode Island Inc. v. R. Gary Clark, Tax Administrator, No. 99-383 (November 27, 2001)

The taxpayer was a surplus lines insurance broker. The issue was whether it had procured an unreported portion of coverage from unauthorized/unapproved carriers, such that it would be required to pay an insurance tax. The taxpayer contended it did not procure a large portion of the insurance, and should not have to pay any tax on the portion it did not procure. The Court on appeal affirmed the lower court decision, finding legally competent evidence in the record indicated that the taxpayer did not actively participate in negotiating the coverage with the unauthorized/unapproved insurers. Therefore, the insurance tax would not have to be paid. However, the tax administrator could rely upon the sworn statements of the taxpayer. Therefore, the taxpayer was liable for the taxes it voluntarily paid for placements with unauthorized/unapproved surplus insurers and for the interest it was assessed because of the late payment of those taxes.

BHG, Inc. v. F.A.F., Inc., No. 2000-269 (November 23, 2001)

The plaintiff brought suit to recover commissions due on sales made before and after its contract with defendant was terminated. The defendant filed a motion in limine, asking the trial justice to preclude plaintiff from presenting any evidence of post-termination sales. On appeal, because the effect of the trial justice’s decision was to dispose of a substantial portion of plaintiff's case, the Court concluded the trial justice abused its discretion by ruling on the motion in limine without explanation and without either receiving any evidence on disputed issues of material fact or converting the motion into one for summary judgment. 

ADP Marshall, Inc. v. Brown University, No. 2000-422 (November 23, 2001)

At trial, a dispute arose as to the proper measure of damages - either the project's finished value or the value of the services and materials.  No decision was made in limine, instead the trial justice stated that he would reconsider the issue if raised at trial. No objection was made at trial to testimony about the value of the finished project. The appellate court held that the proper measure of damages was the reasonable value of the work done. But, issues not preserved by a trial objection were not to be considered on appeal. As the trial court said that it would reconsider its order at trial, the university's failure to reassert its objection at trial was fatal. Regardless, the juror interrogatories showed the error to be harmless. 

Town of West Greenwich v. A. Cardi Realty Associates et al, No. 99-559 (November 21, 2001)

The excavator argued that the town did not have authority to regulate earth removal activities.  The excavator opined that the authroty had to flow from specific enabling legislation, otherwise the town could not prohibit the expansion of a nonconforming use when that use is earth removal. The trial justice's held that the excavator established a preexisting nonconforming use of earth removal. The Court concluded that the town's ordinance was valid and enforceable but disagreed with the trial justice's finding that the extensive commercial earth removal amounted to a change in the basic nature and character of the nonconforming use. Accordingly, the Court held that the excavator was entitled to continue to excavate the land and was not limited to a few truckloads per year as determined by the trial justice.

State v. Frank Johnson, No. 99-474 (November 21, 2001)

The defendant contended on appeal that there was insufficient evidence introduced at trial to show that he possessed the drugs that were seized or that he intended to sell them. The Court concluded that the presence of cocaine on the dresser in defendant's bedroom, together with the other indicia of a drug-delivery operation discovered on the premises, was sufficient to support a finding that defendant was in constructive possession of the cocaine and exercised control over it. The Court otherwise affirmed the conviction.

Norman Laurence v. Gretchen J. Nelson, No. 00-295 (November 21, 2000)

The father asked for visitation in the family court.  The father was also being prosecuted criminally.  On appeal, the father alleged that the trial justice delayed the hearing on the father's motion for visitation so his conviction could be used against him. The father argued his motion for a new trial based upon newly discovered evidence was not heard. The family court file, however, did not contain a copy of the motion. Moreover, the evidence relied upon in support of the motion would not have justified a new trial. The father also alleged erroneous evidentiary rulings occurred during trial. After reviewing each, the Court concluded they did not constitute reversible error. Finally, the father contended he should not have been handcuffed during trial, the presence of the state police during trial interfered with his rights, and he was not afforded the same liberties during the trial as the mother's attorney because he represented himself. The Court concluded that the trial justice did not rely on any of those factors and since the case was not tried before a jury, there was no error.

Joan D. Martin v. Evan D. Howard et al, No. 99-483 (November 13, 2001)

A parishioner sued a minister and church officials for malpractice, breach of contract, and related claims arising out of her sexual involvement with the minister. The Court on appeal upheld the trial justice’s determination that to the extent that the parishioner stated cognizable claims at all, they were time-barred by the three-year statute of limitations for personal injuries under § 9-1-14. 

State v. Joseph D. Dorsey, No. 99-165 (November 8, 2001)

The defendant was charged with violating a domestic protection order, sexual assault, and other offenses.  At trial he sought to attack the credibility of the complainant, his estranged wife, by examining her on charges of paternity against three men in connection with her elder child, her statements as a teen-ager that she had been raped as a small child, and her mental health history generally. The trial justice excluded all of that evidence.  The Court on appeal concluded that the trial justice’s ecision did not violated defendant’s Sixth Amendment right of confrontation because none of the proffered evidence was relevant on the issue of the wife's truthfulness. 

Anthony Fiore et al v. Town of Kingstown et al, No. 99-482 (November 7, 2001)

Property owners challenged a zoning amendment that put an initial 24-month cap on the number of building permits that could be issued. On appeal, the property owners presented one issue, which asked the appellate court to enter a declaration of the validity of the ordinance as it applied in 1997. However, none of the property owners had applied for or had been denied a building permit. The appellate court held that the property owners, in light of their waiver of a takings claim, had no right or claim that they could enforce against the town despite the requested declaration. The challenged quota had expired, and was no longer in effect when the trial justice ruled, and therefore, the property owners were not entitled to the requested relief in either the Superior or Supreme Court. The issue of the validity of the 1997 building permit limit had been made moot by time. 

Anthony P. DeCarli v. Christine M. Webber, No. 99-14 (November 6, 2001)

The trial justice failed to enter summary judgment after granting the relief.  When it was discovered, the court granted a motion to enter a judgment nunc pro tunc. The Court affirmed.

Louis M. Pucino v. Frederick K. Uttley, Trustee et al, No. 2000-527 (November 6, 2001)

The truckdriver used his neighbors land to turn his truck around and the neighbor allowed this practice.  The neighbors successor allowed this use until the truckdriver built a garage on the land, and at that point they started to build a fence to restrict his use.  The trial justice did not abuse his discretion by issuing preliminary injunctive relief against the building of the fence, under the Rhode Island doctrine that precluded a party that had long acquiesced in an altered boundary from challenging it. The determination that the truckdriver was likely to succeed on the merits was not clearly erroneous and the other equitable prerequisites were met.

State v. Domingo Grullon, No. 99-402 (November 5, 2001)

After conviction, state instituted forfeiture proceedings against him.  The defendant alleged that department lacked probable cause.  The Court concluded that defendant failed to pursue statutory remedies under G.L. 1956  § 21-28-5.04.2. Furthermore, the Court determined that defendant failed to raise his Eight Amendment claim and therefore, it was not properly before the supreme court.

State v. Lee A. Spencer, No. 00-88 (November 5, 2001)

The Court on appeal agreed with the defendant that the trial justice ought to have engaged in a more detailed colloquy, however, the Court was not persuaded that such an inquiry would have revealed any factors suggesting that the waiver was not knowing, voluntary, or the product of a conscious decision. The Court also rejected defendant’s claim that the state had commited prosecutorial misconduct by disclosing to the grand jury that he failed a computer voice stress test and held that the error did not warrant dismissal of the indictment when otherwise competent evidence to establish probable cause was presented.

UST Corporation v. General Road Trucking Corp. et al, No. 99-279 (November 5, 2001)

 

State v. Wesley Hanes, No. 00-168 (November 2, 2001)

The defendant was convicted of murder.  On appeal he alleged that the trial justice erred in failing to issue a self-defense instruction.  The defendant alleged that the instruction was supported by evidence that the victim provoked the ensuing assault by bumping into defendant, and that the brother told him that he and the victim were carrying guns and threatened to shoot defendant. The Court determined that the trial court's instructions adequately covered the law of self-defense. The defendant did not preserve for appeal the issue of whether the medical examiner could testify whether the bullet trajectory was consistent with the victim leaning over and reaching for his back pocket.

Peter A. Carnevale et al. Joan L. Dupee, No. 99-499 (November 2, 2001)

Ten years after the possessor purchased and occupied the disputed land, a developer surveyed and subdivided the land and sold the disputed parcel to the purchasers. The trial justice ruled the possessor could not claim ownership of the land because she didn’t object ot the subdivision.  She alleged she was not notified of the developer’s challenge to her ownership. The filing of the survey with the planning board and the possessor's subsequent notice thereof were insufficient, as a matter of law, to interrupt her possession under G.L. 1956 § 34-7-6. Thus, the trial justice erred in finding the notice sufficient to interrupt her adverse possession claim. 

Western Mass Blasting Corp. v. Metropolitan Property and Casualty Insurance Company et al, No. 2000-143 (November 1, 2001)

The homeowner's insurer sought, by subrogation, recovery from the contractor's insurer after it paid homeowner for damages caused by contractor’s blasting. At the arbitration, contractor did not attend but provided evidence that it did not cause the homeowner's damage.  The contractor's insurer was ordered to reimburse the homeowner's insurer for the amount of the settlement. The contractor could not recover for the homeowner's insurer's alleged tortious interference with the contractor's insurance contract, since the homeowner's insurer's actions (1) to get subrogation reimbursement were justified, and also, the contractor did not establish a prima facie tortious interference case, let alone plead it, and (2) violated no duty owed to the contractor. The contractor could not recover under a defamation theory for its subsequent impaired insurability, since the contractor was in privity with its insurer and the homeowner's disclosure at arbitration were as privileged as in a court proceeding.

In re Shaylon J., No. 2000-220 (November 1, 2001)

The father appealed from his termination of parental rights. On appeal, the family court decree was affirmed because there was clear and convincing evidence that there was no substantial probability that the child could be returned to her father's care within a reasonable period and, taking into consideration that the father's incarceration prevented the department from providing him with various services, the department fulfilled its obligations in that regard.

State v. Keith Burke, No. 2001-358 (October 31, 2001)

The defendant was charged with assaulting hi wife and alleged that the Superior Court did not have jurisdiction.The Court disagreed, finding the family court was not vested with jurisdiction to hear and decide criminal cases of witness intimidation by an adult, but was authorized to take appropriate steps to prevent witness or victim intimidation with respect to cases over which it had jurisdiction. Therefore, the trial court had jurisdiction.

State v. Armand C. Fernandes, No. 98-466 (October 31, 2001)

The defendant argued that the trial justice issued an erroneous instruction on breaking and entering. The defendant alleged that the trial court did not state that force was a required element of the crime. The Court on appeal observed that in both the original instruction and the clarification, the trial court properly indicated that force was a required element of the offense. 

In the Matter of Aurendina G. Veiga, No. 01-407 (October 29, 2001)

An attorney agreed to pursue a police officer's claim that he was endangered by disclosures made in a newspaper story. She failed to pursue the claim and was unresponsive when the client attempted to retrieve his documents from her. The Court agreed with the disciplinary board that she should be sanctioned for her failure to conduct herself consistently with the Rules of Professional Conduct.  Her conduct was also reported to the Commission on Judicial Tenure & Discipline since she was now a traffic judge.

Anthony Perkins v. City of Providence et al, No. 99-414 (October 26, 2001)

The injured party appealed from the trial justice’s grant of a new trial in favor of the city.  The trial justice granted the motion because he found  that injured party was so lacking in credibility as to be totally unworthy of belief. Furthermore, the trial justice determined that the injured party had failed to disclose evidence of a previous accident which precluded the jury from making an informed decision. The Court affirmed the trial justice’s decision.

In re Michael C. et al, No. 2001-47 (October 26, 2001)

The mother’s parental rights were terminated but no final decree was signed.   The mother argued that the trial justice overlooked or misconceived material evidence. The supreme court could not say that the trial justice, who heard testimony for several days, was wrong in granting the termination petitions.

State v. Andrew P. Cook, No. 2000-58 (October 26, 2001)

The defendant had left messages on the victim’s answering machine which were excluded at trial. The Court found that there was no evidence that the trial court abused its discretion in excluding the answering machine tape given that the tape did not include any threats or evidence of a plan to assault the victim.

Richard Krajewski et al v. George Bourque et al, No. 2000-98 (October 25, 2001)

The Court agreed that the police officer's rule limited the general duty of care in negligence arising from the presumption that officers were deemed to have assumed all normal risks inherent in their duties. The officer had gone to the home of a child suspected to have damaged mailboxes, and slipped and fell in the driveway.  There was a sufficient nexus between the alleged tortfeasors and the event that brought the officer to the premises

In re Olivia C. et al, No. 2000-464 (October 24, 2001)

The decision to terminate the mother’s parental rights was affirmed.  DCYF had proved by clear and convincing evidence that termination was in the child’s best interests.  The mother had permitted a boyfriend to sexually abuse the child.

  
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