Associates, a New York Limited Partnership, by and Through its general
partner, M.E. Venture Management, Inc. v. O. Ahlborg & Sons, Inc.
and Richard Ahlborg, No. 01-145 (July 1, 2003) (Corrected)
an action to enforce a judgment confirming a construction arbitration
award rendered against Construction Services, Inc. (CSI).
The plaintiff filed suit against O. Ahlborg & Sons, Inc., and
one of its principals, Richard Ahlborg, seeking to set aside CSI’s
corporate identity, pierce its corporate veil and impose liability for
CSI’s judgment debt upon the defendants.
The plaintiff claimed that CSI was operated by Richard Ahlborg as
a mere conduit or instrumentality of O. Ahlborg & Sons, Inc., that
Richard Ahlborg breached his fiduciary duty to CSI’s creditors by
making preferential payments and fraudulent transfers, and that both
defendants were liable for violations of the Uniform Fraudulent Transfer
Act. The trial justice
denied and dismissed plaintiff’s complaint and the Supreme Court
reversed the decision of the trial justice.
Court held that the trial justice overlooked and misconceived the
abundant evidence supporting a finding that CSI was organized and
controlled by defendants; it was undercapitalized, financially
dependent, lacking in independent business vitality and totally
dominated by defendants. Accordingly,
the Court concluded that the trial justice erred in refusing to hold O.
Ahlborg & Sons, Inc. liable for CSI’s corporate debt.
Further, the trial justice erred in refusing to find that Richard
Ahlborg, as a director and sole shareholder of CSI, breached his
fiduciary duty to its shareholders and that both the defendants
committed violations of the Uniform Fraudulent Transfer Act.
Accordingly, the appeal of the plaintiff is sustained and the
judgment is vacated.
State v. Thomas G.
Carter, No. 01-629 (July 1, 2003)
defendant was convicted, following a jury trial, of violating a domestic
abuse protective order after having twice been convicted of a crime of
domestic violence, a felony offense.
The Supreme Court held that the defendant’s second offense,
violating a District Court no-contact order, was not an enumerated crime
qualifying as a second offense, pursuant to the provisions of G.L. 1956
§§ 15-15-5 and 12-29-59(c)(1)(ii).
Thus, the offense presently on appeal does not rise to the level
of a felony. The judgment of
conviction is vacated.
Corporation v. City of Providence, No. 00-499 (July 1, 2003)
appeal of the defendant, City of Providence, from a summary judgment
entered by a justice of the Superior Court is denied and dismissed.
Property that was owned by the city was sold at tax sale by the
Providence Water Supply Board and the city failed to respond to a
petition to foreclose its rights of redemption to the property.
The plaintiff, the mortgagee of the subsequent purchaser of the
property, was erroneously informed by the city that property tax liens
were outstanding and the property would be sold for non-payment of
taxes. The plaintiff paid
the taxes and, upon discovering that the liens were not valid, filed
suit against the city seeking reimbursement.
The Supreme Court held that plaintiff’s failure to comply with
the provisions of G.L. 1956 § 45-15-5 did not give rise to summary
judgment and was not fatal to plaintiff’s claim.
The Court held that plaintiff’s subsequent compliance with §
45-15-5 was sufficient.
the merits, the judgment of the Superior Court declaring that the
city’s prior liens were invalid is affirmed.
When the city obtained a judgment foreclosing all rights of
redemption to the property, all prior liens were extinguished pursuant
to G.L. 1956 § 44-9-31. Further,
when the buyer at the second tax sale, conducted by the Providence Water
Supply Board, obtained a judgment foreclosing all rights of redemption
to the property, all subsequent liens were extinguished.
Consequently, the taxes paid by plaintiff were not lawful and a
judgment ordering reimbursement was appropriate.
The city’s appeal is denied and dismissed.
Products, Inc. v. Thomas Hagan, et al, No. 02-345 (July 1, 2003)
appeal of the defendants from the entry of summary judgment is sustained
in part and denied in part. The
judgment declaring the defendant, Thomas Hagan (Hagan), personally
liable for debts incurred by a defunct corporation is affirmed.
As a principal of a non-existent corporation, Hagan is personally
liable for debts incurred after the corporate charter was revoked.
Further, the defendant’s argument that the defunct corporation
was a fictitious business name for a Massachusetts corporation is
rejected. The evidence
disclosed that the Massachusetts corporation was not authorized to
conduct business in Rhode Island, nor is there any record evidence
establishing the fictitious business name.
The Court held that pursuant to G.L. 1956 § 7-1.17.1, a
corporation seeking to conduct business under a fictitious trade name
must register the name with the Secretary of State prior to commencing
business. Finally, the
record disclosed a factual dispute with respect to whether the
defendant, John Teeden (Teeden), was a principal of the defunct
corporation or merely an employee. Consequently,
summary judgment was improperly granted and the judgment against Teeden
First Bank &
Trust Co. v. City of Providence, No. 01-0140 (July 1, 2003)
declaratory judgment issued in favor of plaintiff, First Bank and Trust
Company (First Bank), declaring that a tax sale conducted by the city
was void abinitio, is vacated.
The Supreme Court held that the city’s tax liens, although
older than three years, did not terminate pursuant to G.L. 1956 §
44-9-1, upon alienation of the property by the mortgagor/taxpayer to its
mortgagee, First Bank, because the conveyance to First Bank was made
after the city had instituted enforcement proceedings by notifying the
interested parties and advertising an impending tax sale.
Accordingly, the tax deeds to the defendant/appellants were
valid. The appeal of the
defendants is sustained and the judgment is vacated.
In re: Stephanie
B., In re: Amanda A., In re: Thomas J., No., 02-490 (June 30, 2003)
these companion certiorari petitions, the Supreme Court concluded that
although moot, the circumstances giving rise to these petitions were
capable of repetition but evading review and that the important
constitutional issues warranted the Court’s attention.
The Supreme Court held that the Family Court acted in excess of
its jurisdiction in issuing three orders, restraining the petitioner,
Butler Hospital, a private mental health care facility from discharging
two juveniles in DCYF custody and ordering Butler to admit a third
patient or appear and show cause why it declined to admit the patient.
Because the petitioner was not a party to these proceeding, had
not been provided with notice and an opportunity to appear before the
issuance of these injunctions, its right to procedural due process was
violated. The Family Court
did not have personal jurisdiction over the petitioner and had no
ability to enforce these orders. Further,
it is undisputed that the Court did not civilly commit these juveniles
pursuant to the provisions of chapter 5 of title 40.1., the Mental
Health Law. Further, the
Family Court has no equitable jurisdiction to issues the orders
presently under review.
William Gardner et
al v. Cumberland Town Council et al, No. 01-290 (June 30, 2003)
for certiorari, William and Flora Gardner (the Gardners) asked the
Supreme Court to vacate the Cumberland Town Council’s (council) order
abandoning an unnamed paper street.
The Supreme Court held that it lacked jurisdiction to review the
merits of the council’s order on certiorari because the council’s
order to abandon the street was a legislative act.
The Supreme Court also rejected various procedural challenges to
the council’s actions including an alleged lack of quorum, failure to
state findings of fact or reasons for the abandonment, the failure of
all council members to attend all portions of all previous hearings
before voting on the propriety of the council’s abandonment order,
most of which improperly assumed that, to be valid, such a legislative
act must first comply with the procedural prerequisites of a judicial
proceeding. Lastly, the
Supreme Court held that, by attending the meeting at which the council
voted to abandon the road, the Gardners lacked standing to complain
about the town’s alleged failure to serve them with personal notice of
the abandonment order.
Kildeer Realty, a
Rhode Island General Partnership v. Brewster Realty Corp. et al, No.
01-512 (June 27, 2003)
appeal from the denial of defendant’s motion to vacate a final decree
foreclosing all rights of redemption to property sold at tax sale by the
City of Providence is denied. Although
the defendant property owner, whose interest was recorded 83 days prior
to the sale, was not given actual notice of the sale, contrary to the
provisions of G.L. 1956 § 44-9-11, the defendant was notified of the
plaintiff’s petition to foreclose its rights of redemption to the
property. The Supreme Court
held that defendant’s failure to appear and file an answer objecting
to the petition serves as a bar to challenging the validity of the tax
sale by a motion to vacate the judgment.
Pursuant to § 44-9-31, failure to raise a challenge to the
validity of a tax title will result in the party being "forever barred
from contesting or raising the question in any other proceeding."
deBont v. Darlene P. deBont, No. 02-593 (June 27, 2003)
appeal of the plaintiff, from a decision pending entry of final judgment
issued by a justice of the Family Court is denied and dismissed.
The evidentiary objections raised by plaintiff at trial and the
issues raised in plaintiff’s post trial "Amended Motion for Specific
Relief" are without merit. The
plaintiff failed to present any evidence tending to establish that he
was a de facto/psychological father to defendant’s adopted son.
The plaintiff never parented this child in any meaningful way
because he was incarcerated and the adoption became final after the
with respect to the parties’ biological child, it is undisputed that
this child has no desire to visit her inmate-father and the expert
opinion testimony supported the conclusion of the trial justice that
forced visitation would be detrimental to the child.
The plaintiff’s appeal is denied and dismissed.
William F. Connor
et al v. Paul J. Sullivan; Paul J. Sullivan v. William F. Connor et al,
Nos. 02-247 and 02-248 (June 19, 2003)
appeal of the appellant/plaintiff, Paul J. Sullivan., from a Superior
Court judgment denying and dismissing his complaint for the imposition
of a constructive trust and monetary damages in connection with real
estate purchased at foreclosure by the defendants is denied and
dismissed. The appeal of the
appellant/defendant from a judgment in favor of the plaintiffs in an
action for termination and eviction for the same property is denied and
dismissed. The Supreme Court
rejects the contention of the parties that these cases were
consolidated. Neither party
has produced a written motion seeking consolidation or a transcript
reflecting that a justice of the Superior Court ordered these claims
the appeals are considered separately.
Supreme Court held that the appellant was not deprived of his right to a
trial by jury pursuant to art. 1, sec. 15 of the Rhode Island
Constitution. The appellant
failed to comply with the provisions of Rule 52(a) of the Rules of Civil
Procedure, and failed to demand a jury trial in the constructive trust
claim. Further, in the
action for termination and eviction, the only case for which the
appellant demanded a jury, when this case was reached for trial the
appellant conceded that his only defense to an action for termination
and eviction was a constructive trust and that issue was precluded by
the doctrine of resjudicata.
New England Retail
Properties, Inc. v. Commerce Park Associates 11, LLC, No. 02-479
(June 18, 2003)
Supreme Court affirmed a Superior Court judgment that rejected an
out-of-state corporation’s attempt to collect a real-estate commission
for services rendered in procuring a commercial lessee because the
corporation did not possess a license to perform such services in Rhode
Island. The Court held that
the language of G.L. 1956 § 5-20.5-21 was clear and unambiguous in
preventing any person from maintaining a lawsuit to recover a commission
or any other compensation for any act that only licensed real-estate
brokers can perform unless that person was a duly licensed broker when
she, he, or it performed the act in question.
Richard Gomes v.
Ashbel T. Wall, II Director of the Department of Corrections, et al,
No. 02-536 (June 18, 2003)
The Supreme Court held that consecutive sentences must be
aggregated for the purpose of calculating the maximum amount of
"good-time" credits that can be awarded to an inmate under G.L. 1956 § 42-56-24(b) with respect to
any unserved portion of consecutive sentences; that combining an action
judgment with a request for injunctive relief was proper; and that
plaintiff simply sought to
have the Superior Court declare what his legal rights were once
defendants in the exercise of their discretion determined that he was
entitled to receive the maximum amount of "good-time"
Richard A. Skolnik
v. Charles R. Mansolillo et al, No. 02-49 (June 16, 2003)
City of Providence appealed from a judgment granting plaintiff
attorney’s fees and interest for services he rendered to the
Employees’ Retirement System of the City of Providence in eleven
cases. The city contended
that the trial justice erred in granting plaintiff attorney’s fees
because the retirement board was no longer authorized to hire outside
counsel following the adoption of an ordinance that designated the city
solicitor to serve as legal advisor to the board.
The Court affirmed in part, holding that the board was authorized
to retain plaintiff for representation in four cases, and sustained the
city’s appeal on the remaining seven matters.
A Superior Court order denying the city’s counterclaim for
overpayment was vacated to the extent that the city may be entitled to a
refund for those cases in which the board was not authorized to hire
outside counsel. The case
was remanded to Superior Court with instructions to hold an evidentiary
hearing in order to render an accounting, and to enter a judgment
consistent with the opinion.
Navigation Co. d/b/a The Block Island Ferry et al v. Division of Public
Utilities and Carriers of the State of Rhode Island et al, No. 02-83
(June 13, 2003)
these petitions for certiorari, the Division of Public Utilities and
Carriers of the State of Rhode Island (the Division) and Hi-Speed
complained that a Superior Court trial justice erred by failing to
affirm a Division report and order that (1) fined the president of
Interstate Navigation Co. (Interstate) $22,000 for failing to answer
questions posed to her at a Division hearing, (2) required Interstate to
apply for a Certificate of Public Convenience and Necessity (CPCN) if it
wanted to enter the high-speed ferry market, and (3) prohibited
Interstate from attempting to obtain that CPCN for three years.
This Court concluded that the trial justice erred by reversing
the Division’s order with respect to the three-year moratorium and the
requirement that Interstate apply for a new CPCN at the expiration of
that moratorium. However,
the Court affirmed the trial justice’s reduction of the $22,000 fine
Association, L.P. et al v. Marc Tillson, in his Capacity as Building
Official of the Town of New Shoreham et al, No. 01-491 (June 12,
Town of New Shoreham (town) appealed from a Superior Court judgment
declaring that the town had no power to prohibit commercial ferries from
docking in the Great Salt Pond (pond).
The Supreme Court held that in 1887 the Legislature granted
ownership of the pond to the town but did not expressly delegate
regulatory authority to the town. Further,
the town had no power to prohibit commercial ferries from docking in the
pond as an indirect consequence of its local zoning ordinances
applicable to dry land. Finally,
the Court held that, pursuant to Town of Warren v.
Thornton-Whitehouse, 740 A.2d 1255 (R.I. 1999), the Coastal
Resources Management Council is vested with exclusive authority over
commercial ferry operations and any municipal attempt to prohibit such
activities is preempted. Accordingly,
the judgment of the Superior Court was affirmed.
Leonard C. Wright v.
Mary Anita Zielinski, No. 01-57 (June 11, 2003)
a Superior Court judgment granting the defendant-wife’s motion for
summary judgment and
dismissing her former husband’s lawsuit against her, the Rhode Island
Supreme Court held that (1) the doctrine of res judicata barred the
husband from alleging that his former wife breached their prenuptial
agreement when she sued him for divorce because that claim could have
been raised as a part of the previous divorce case; (2) the husband
failed to demonstrate that the wife’s filing of a motion for temporary
orders along with her divorce complaint constituted an abuse of process
because no evidence suggested that the wife was attempting to pursue
some improper ulterior objective in the divorce case other than to
obtain a divorce and an adjudication of her rights and duties as a
divorced spouse; and (3) that the husband failed meet his burden on
summary judgment to support his claim for intentional infliction of
emotional distress, because he did not produce medical evidence
establishing a causal connection between his wife’s alleged misconduct
and his alleged symptoms.
M.D. v. Gloria Nahabedian, No. 02-416 (June 11, 2003)
this constructive eviction case, the plaintiff, Geraldine Mills, M.D.
(plaintiff), appealed from a jury verdict in favor of the
landlord-defendant, Gloria Nahabedian (defendant).
The plaintiff claims to have been evicted after defendant
installed a carpet that allegedly emitted toxic fumes and foul odors.
The plaintiff first challenges the propriety of the jury’s
finding that she was not constructively evicted.
Because plaintiff failed to request a new trial after the jury
returned its verdict, the Supreme Court did not consider the issue.
The plaintiff also challenged several of the trial justice’s
evidentiary rulings. The
Court held that the trial justice properly limited the number of
witnesses that plaintiff could present because additional witnesses
would have been cumulative. The
trial justice also correctly prohibited plaintiff’s witnesses from
testifying to physical injuries because there is no evidence that the
carpet caused their injuries. Additionally,
a letter written by defendant demanding back-rent was irrelevant to
plaintiff’s constructive eviction claim.
Finally, there was no evidence that the trial justice was biased
against plaintiff. Accordingly,
the judgment was affirmed.
State v. Keith
Werner, No. 97-497 (June 11, 2003)
case came before the Supreme Court on an appeal by defendant Keith
Werner from a judgment of conviction entered in the Superior Court for
the County of Providence on a charge of assault with a dangerous weapon.
The Court denied and dismissed the appeal because there was no
abuse of discretion when the trial justice ruled that he would allow the
state to admit evidence of defendant’s prior assaults if he testified,
in order to disprove the defendant’s claim of self-defense in
attacking a correctional officer. Moreover,
a state witness’s use of the word "segregation," even though
considered to be inappropriate by the trial justice, was not so
inexpiable as to require a mistrial, and no cautionary instruction was
requested or given in order to avoid emphasizing the state’s reference
to that word.
Jame Skene et al v.
Richard Beland, No. 02-280 (June 10, 2003)
plaintiff, James Skene, appealed a Superior Court justice’s exclusion
of expert testimony, denial of a motion to pass, and refusal to grant a
new trial in this personal injury action.
This Court affirmed, concluding that the trial justice correctly
excluded the testimony because it was speculative, confusing and
non-probative because the expert witness was unable to explain his
theory to a reasonable degree of engineering certainty.
Further, this Court determined that the trial justice did not
abuse her discretion in denying the motion to pass and she properly
denied the motion for a new trial.
State v. Pedro Ortiz,
No. 02-81 (June 10, 2003)
Supreme Court denied the defendant’s appeal from a second-degree
murder conviction. The Court
held that the Superior Court’s denial of the defendant’s motion to
suppress his custodial statements to the police was justified because
the police had probable cause to detain and arrest the defendant and
because the police properly advised him of his Miranda rights.
The Court also held that admission of the medical examiner’s
testimony, which opined that the victim’s blood-alcohol content showed
that he was impaired at the time of his death, was not error.
Lastly, the Court held that the denial of a requested
involuntary-manslaughter instruction did not constitute reversible error
because the evidence adduced at trial demonstrated that the defendant
deliberately attacked the victim in a manner that was incapable of
supporting a conclusion that the victim’s death was involuntary or
accidental. Thus, the
Supreme Court denied defendant’s appeal and affirmed the conviction.
Donald Allaire et
al v. Howard R. Fease et al, No. 02-394 (June 10, 2003)
defendants, Howard and Andrea Fease, appealed from a Superior Court
order granting a preliminary injunction preventing them from obstructing
travel across a tract of their land.
The plaintiffs, Donald Allaire and other Hog Island residents,
used defendants’ tract of land to access their properties for decades,
and were ultimately seeking a prescriptive easement. This Court affirmed
the order granting a preliminary injunction because the trial justice
properly considered all relevant factors in granting the injunction and
did not abuse his discretion.
Linda Cruz v. Al
Johnson et al, No. 02-450 (June 10, 2003)
defendants appealed a Superior Court order granting the plaintiff’s
motion for new trial on the grounds that the trial justice improperly
instructed the jury on the shopkeeper’s privilege statute, G.L. 1956
§ 11-21-41(c) and that the verdict was against the weight of the
evidence. This Court
affirmed the order of the trial justice because the trial justice
properly determined that he erred in issuing a jury instruction on the
shopkeeper’s privilege statute when there was no observation that the
plaintiff "conceal[ed] or attempt[ed] to conceal merchandise."
Stephen G. Hay et
al v. Pawtucket Mutual Insurance Company, No. 02-564 (June 10, 2003)
G. Hay (plaintiff) appealed a Superior Court trial justice’s order
granting Pawtucket Mutual Insurance Company’s (defendant) motion for
summary judgment on plaintiff’s breach of insurance contract claim.
This Court concluded that the trial justice correctly granted
that motion because plaintiff did not file his claim until the statute
of limitations had expired.
Geraldine Mills, M.D.
v. State Sales, Inc., et al, No. 01-82 (June 10, 2003)
plaintiff, Geraldine Mills, M.D. (plaintiff), appealed from a summary
judgment in favor of Robert F. Weisberg (Weisberg).
She also appealed from a Rule 50 judgment as a matter of law in
favor of State Sales, Incorporated, Beaulieu of America, Incorporated
and Gloria Nahabedian (collectively referred to as defendants).
The plaintiff claimed that a carpet installed in her office
emitted toxic fumes causing her personal injuries and filed a negligence
suit against Weisberg and defendants.
plaintiff claimed that Weisberg negligently failed to detect toxins in
her office when he conducted tests therein.
However, plaintiff failed to provide expert testimony of the
standard of care expected of a person who conducted tests to detect the
presence of toxins. Therefore,
this Court affirmed summary judgment in favor of Weisberg.
at a pre-trial Daubert hearing, the hearing justice excluded
plaintiff’s experts who she presented to establish a causal connection
between her injuries and the carpet.
Immediately thereafter, the hearing justice granted defendants’
Rule 50 motion for judgment as a matter of law because, without her
experts, plaintiff would be unable to establish causation.
The Supreme Court concluded that the trial justice did not abuse
her discretion in excluding the witnesses.
Although the trial justice erred by entering judgment in favor of
defendants pursuant to Rule 50 before trial had begun, that error was
State v. Edward
Vashey, No. 01-60 (June 9, 2003)
se defendant was not entitled to a preliminary, probable cause
hearing in this probation revocation case.
Any delay in conducting a hearing on the merits was attributable
to defendant, who repeatedly continued the matter in an attempt to
obtain discovery to which he was not entitled.
The record reveals that defendant received a full and fair
hearing supporting the finding of a probation violation.
To challenge the legality of his sentence, defendant must bring a
Rule 35 motion. The proper
avenue for a claim of ineffective assistance of counsel is through an
application for postconviction relief.
State v. Juan
Martinez, No. 02-268 (June 9, 2003)
trial justice properly excluded extrinsic evidence where it was intended
to impeach a witness on collateral matters.
The evidence also properly could have been excluded under Rules
602 and 403 of the Rhode Island Rules of Evidence.
The trial justice properly excluded speculative testimony
concerning an unperformed DNA test.
The proper avenue to challenge the trial justice’s rejection of
an uncorrected, inaccurate presentence report is through an application
for postconviction relief.
et al v. Providence Housing Authority et al, No. 02-562 (June 9,
this wrongful death case, the trial justice did not err in granting
defendant Providence Housing Authority’s motion for summary judgment.
Upon receiving decedent’s application for a transfer to a
one-story apartment after he fell down the stairs, defendant put
decedent on a waiting list because no appropriate accommodation was
available. The plaintiffs
failed to demonstrate that defendant had a duty to immediately provide
decedent with a one-story apartment.
State v. Felipe
Almonte, No. 01-335 (June 9, 2003)
defendant appealed the trial court’s judgment of conviction following
a jury trial in Superior Court. The
defendant challenged the admission of certain witness testimony because
the witness’ name was not provided to defendant pursuant to Rule 16 of
the Rhode Island Superior Court Rules of Criminal Procedure.
Because defendant was acquitted of the charge that the testimony
pertained to, the Court found that he was not prejudiced by admission of
that testimony. Defendant
also challenged the exclusion of witness testimony offered by the
defense at trial to discredit the state’s witness.
The Court ruled that the trial justice did not abuse his
discretion in precluding that testimony.
The appeal was denied and dismissed and the judgment appealed
from was affirmed.
Win-Vent Division v. National Grange Mutual Insurance Company, No.
02-481 (June 9, 2003)
Inc., Win-Vent Division (Win-Vent) brought this cause of action to
recover money on a payment bond issued by National Grange Mutual
Insurance Company (National Grange) in its capacity as a surety for
Berkshire Construction Services, Inc. (Berkshire).
The Warwick School Committee hired Berkshire to serve as
Construction Manager for a school-construction project involving Toll
Gate High School and several other public schools in the Warwick area.
Berkshire and the school committee contracted with a
subcontractor, Graham Glass, Inc. (Graham), to provide windows for the
project. Win-Vent supplied
windows for the Warwick school project to Graham in four separate
shipments, resulting in a total amount owed to Win-Vent of $73,468.
Graham remitted only a portion of this amount to Win-Vent before
filing for bankruptcy, leaving Win-Vent with an unpaid balance due on
its contract with Graham. Win-Vent
subsequently sued National Grange for the unpaid amount in its capacity
as a surety on Berkshire’s payment bond.
A Superior Court judgment entered in favor of National Grange,
and Win-Vent appealed.
Nancy L. Desjarlais
et al v. USAA Insurance Company, No. 02-137 (June 9, 2003)
Supreme Court held that derivative claims for loss of society,
companionship, and consortium must be joined with the impaired party’s
underlying tort and underinsured motorist claim(s) unless the deprived
spouse can show that it was not feasible to do so, thereby avoiding
duplicative litigation, the risk of inconsistent results, and potential
multiple recoveries against the same defendant(s).
In this case, a spouse’s failure to join her derivative claims
for loss of consortium, including those of her children for loss of
society and companionship, with the underlying personal injury and
underinsured-motorist claims of her impaired husband precluded her from
maintaining them in a later-filed independent lawsuit after the husband
had settled his underlying tort claims and arbitrated his
State v. Keith
Werner, No. 94-745 (June 5, 2003)
defendant has appealed the entry of a judgment of conviction in the
Superior Court on one count of possession of a loaded weapon in a
vehicle, one count of possession of a sawed-off shotgun, and three
counts of assault with a dangerous weapon.
The defendant has alleged numerous errors in the application of
the Interstate Agreement on Detainers Act, in the denial of his
pre-trial motions to suppress as well as in the trial justice’s
evidentiary rulings, in the jury instructions, and in the denial of his
motions for a mistrial. This
Court denied and dismissed the appeal of the defendant.
The judgment of conviction is affirmed.
Louis Martone v.
Johnston School Committee, No. 02-95 (June 3, 2003)
defendant, Johnston School Committee (committee), appeals from a
Superior Court judgment of Mandamus directing it to offer the
plaintiff-teacher, Louis Martone (Martone) a hearing pursuant to G.L.
1956 § 16-13-5 to review his suspension.
Pursuant to the election of remedies doctrine, plaintiff was not
entitled to a § 16-13-5 hearing because he filed a grievance before
invoking his statutory remedy. Further,
plaintiff was not entitled to a § 16-13-5 hearing because of his being
placed on administrative leave with pay as the committee had.
Accordingly, the Supreme Court vacated the issuance of the writ
Don Krivitsky d/b/a
Coastline Copters v. Town of Westerly, No. 02-370 (June 3, 2003)
Town of Westerly (town) appealed from a Superior Court order in a writ
of mandamus action directing the town clerk to issue Don Krivitsky d/b/a
Coastline Copters (Coastline) a class III amusement license to operate a
helicopter ride. The proper
procedure for review of a town council’s denial of a license is by
writ of certiorari to this Court. Thus,
the Superior Court lacked jurisdiction to hear and rule on the matter.
Accordingly, the Court vacated the Superior Court’s order.
Estate of Antonio A.
Fontes, Jr., et al v. John L. Salamone, D.D.S., No. 02-91 (June 3,
defendants appealed a Superior Court trial justice’s denial of their
motion for judgment as a matter of law arguing that a third-party’s
actions constituted a superseding intervening cause that relieved
defendants of liability. The
defendants also appealed the trial justice’s decision not to instruct
the jury on superseding intervening cause.
Because defendants failed to meet the procedural and evidentiary
requirements for the defense of a superseding intervening cause, the
Supreme Court affirmed the decision of the trial justice and denied and
dismissed the appeal.
et al v. Ray Myers, alias Jane Doe, No. 02-12 (June 3, 2003)
personal injury action resulting from a rear-end collision, the
plaintiffs appealed several of the trial justice’s rulings.
Specifically, they argued that the trial justice improperly (1)
denied their motions for judgment as a matter of law and new trial, (2)
permitted evidence of minimal automobile damage to demonstrate lack of
injury absent expert testimony, (3) failed to voirdire
the jury at the close of evidence about whether the insurer employed any
of the jurors, and (4) failed to charge the jury on the law of a
particular statute. This
Court denied and dismissed the plaintiffs’ appeal because the trial
justice properly reviewed the evidence and ruled on the motions for
judgment as a matter of law and new trial.
The trial justice also properly charged the jury on the
applicable law. The
plaintiffs failed to preserve the remaining issues for review.
In the Matter of
Paul L. Foster, No. 03-144 (June 3, 2003)
Supreme Court Disciplinary Board (board) recommended that the
respondent, Paul L. Foster (respondent), be publicly censured for
misconduct in the practice of law for failing to act diligently or to
communicate with his clients. This
Court adopted the board’s recommendation of a public censure after
reviewing the mitigating circumstances involving respondent’s health
Fernando E. Nunes
et al v. Meadowbrook Development Co., Inc., No. 02-506 (June 3,
plaintiffs appeal the trial justice’s order denying plaintiffs’
request for injunctive relief barring defendants from using a purported
easement over their property. The
trial court incorrectly ruled that the defendant had a valid easement by
deed and by necessity. The
easement was extinguished under the merger rule, because unity of title
to the dominant and servient estates was once vested in defendant.
Moreover, defendants are not entitled to an easement by
necessity. For these
reasons, the appeal was sustained and the judgment appealed from was
Harry Bogosian et
al v. Charles Bederman et al, No. 02-144 (June 3, 2003)
trial justice should have returned a property purchase deposit to the
plaintiffs where affirmation of the contract was impossible because the
defendants no longer possessed title to the property.
Because the return of a deposit is merely a reimbursement, the
plaintiffs are not entitled to statutory interest.
Shayna L. Ferrara,
by her guardian and next best friend, Commonwealth of Massachusetts
Department of Social Services v. Michael Marra, No. 01-560 (June 3,
existed genuine issues of material fact from which a jury could infer
that the defendant landlord had knowledge of the vicious propensities of
at least one of the three pitbull dogs belonging to his tenant who
attacked a juvenile guest of the tenant.
Property and Casualty Insurance Company v. Devin C. Lopes et al, No.
02-186 (June 2, 2003) (Corrected)
defendant appeals the trial justice’s decision granting summary
judgment in favor of plaintiff. The
plaintiff in this matter filed a complaint seeking a declaratory
judgment that an automobile insurance policy issued to defendant had
lapsed prior to the date when defendant’s grandson was involved in an
automobile accident. At
issue was whether a cancellation notice sent by plaintiff was effective
to terminate defendant’s coverage.
The trial justice ruled that the cancellation notice was clear,
definite, and unequivocal, and that the insurance policy had lapsed
prior to the automobile accident at issue.
Inc. v. Susan Adams d/b/a The Waterfront Cafe, No. 02-252 (June 2,
The plaintiff appeals the trial justice’s denial of
plaintiff’s motion for a new trial following a jury verdict in favor
of defendant. The plaintiff
in this commercial lease dispute filed a complaint seeking eviction and
back-rent for arrearages owed by defendant under a restaurant lease that
it had assumed under a previous owner, and for the unlawful use of an
adjacent boat slip. Defendant
claimed that the original landlord had agreed to orally modify the lease
to reduce the amount of rent due. The
trial justice denied plaintiff’s motion, finding that it was
reasonable for the jury to find defendant credible and to infer that the
description of the premises in the lease included the boat slip.
William M. White v.
R. Gary Clark, Administrator, No. 01-550 (June 2, 2003)
case is before the Court pursuant to a writ of certiorari.
Petitioner sought review of the District Court’s denial of his
motion for exemption from prepayment as a condition precedent to the
court’s denovo review of the tax administrator’s
determination of deficiency. The
Court found that the District Court incorrectly determined that
petitioner failed to establish reasonable probability of success on the
merits. The petition for
certiorari is granted and the judgment appealed from is quashed.
The case is remanded to District Court with instructions to grant
petitioner’s motion for exemption from prepayment and for denovo
review on the merits.
State v. Roger P.
Greene, No. 02-163 (June 2, 2003)
defendant’s appeal from a judgment of conviction entered in the
Superior Court for three counts of first-degree child molestation sexual
assault and two counts of second-degree child molestation sexual assault
was denied and dismissed. The
trial justice properly exercised his discretion in admitting a police
officer’s testimony that the defendant had admitted to viewing
pornographic films. The
admission of this testimony was harmless beyond a reasonable doubt and
did not require a limiting instruction.
Julio Ramos v.
Violeta Granajo, No. 02-567 (May 30, 2003)
Re Christopher B. et al, No. 01-150 (May 30, 2003)
this termination-of-parental-rights case, the Rhode Island Supreme Court
reversed the termination of a mother’s parental rights under G.L. 1956
§ 15-7-7(a)(2)(i) (mental deficiency) and also under subsection (a)(3)
(child at least twelve months in DCYF custody), insofar as termination
under these subsections related to the mother’s deficient mental
condition. The Court held
that no legally competent evidence supported the trial justice’s
conclusion that the mother was offered or received services to correct
the situation concerning her mental deficiency and her need for basic
parenting education, both of which had led, at least in part, to the
children’s placement. Nevertheless,
the Court upheld the trial justice’s termination decree under §
15-7-7(a)(3) with respect to the situation involving Mary Ann’s
recurrent problem with entering into and failing to end abusive male
relationships. The Court
held that the trial justice correctly found that DCYF undertook
reasonable efforts to provide Mary Ann with appropriate services aimed
at correcting this aspect of the situation that led to Christopher’s
and Kayla’s placement with DCYF. Thus,
the Court affirmed the Family Court’s termination of parental rights
on this basis.
holding that the termination-of-visitation issue argued in DCYF’s
petition for certiorari was moot in this case, the Supreme Court denied
DCYF’s petition and quashed the writ of certiorari as improvidently
Realty II, Limited Partnership v. Thomas Rossi, in his Capacity as Tax
Assessor for the City of Providence, No. 02-235 (May 30, 2003)
State v. Ronnie
Frazar, No. 02-192 (May 28, 2003) Corrected
record evidence, though sparse, was sufficient to establish that
defendant knowingly and voluntarily gave up his rights when he entered
into a plea agreement.
Imerio J. Balletta
et al v. Ellen M. McHale, No. 02-331 (May 27, 2003)
plaintiff moved to amend his complaint to add a loss of consortium claim
on behalf of his wife. The
pretrial justice allowed the amendment without prejudice for the
defendant to raise the statute of limitations.
The defendant then moved for summary judgment on the loss of
consortium claim, asserting that it was time-barred by the applicable
statute of limitations. The
motion justice granted the motion for summary judgment, and plaintiff
appealed. The Court denied
and dismissed the appeal, concluding that the "relation back"
provisions of Rule 15(c) of the Superior Court Rules of Civil Procedure
did not apply to the addition of a party plaintiff and that the "law
of the case" doctrine did not preclude the motion justice from
granting summary judgment on the loss of consortium claim.
State v. Rafael
Pena-Rojas, No. 01-234 (May 27, 2003)
defendant, Rafael Pena-Rojas, filed an untimely notice of appeal from
his conviction for first-degree child molestation.
Upon discovering that his appeal was untimely, he then petitioned
the Supreme Court for the issuance of a writ of certiorari, which the
Court granted. In
petitioning for certiorari, the defendant asked the Supreme Court to
grant him a new trial because the trial justice prevented him from
testifying that he did not have any sexually transmitted diseases, even
though the complaining witness testified that she had contracted such
diseases after having had sexual relations with defendant and another
man in a motel room. The
Supreme Court affirmed the trial justice’s decision to exclude this
evidence because defendant failed to make an offer of proof concerning
this line of inquiry. Moreover,
even assuming that the defendant had offered to prove that he was free
of any sexually transmitted diseases and that he was never treated for
such illnesses, such evidence alone would not have assisted his defense
in light of the victim’s testimony that she engaged in sexual
relations not only with him but also with another man on that same
evening. Because the
defendant made no offer of proof indicating that he was prepared to
prove that neither he nor the other man suffered from the sexually
transmitted diseases that plagued the victim, and that, therefore, he
could not have transmitted these diseases by sexual contact with the
victim on the night in question, the trial justice did not err in
excluding this evidence. Thus,
the trial justice was entitled to sustain the state’s objections to
this line of inquiry, especially when admitting this evidence might have
confused the jury without assisting them in determining whether
defendant committed the offense in question. The
Supreme Court dismissed the appeal as untimely, denied defendant’s
petition for certiorari, quashed the writ as improvidently granted, and
affirmed the judgment of conviction.
Michael Hogan v.
Diane Hogan, No. 02-5 (May 27, 2003)
Rhode Island Supreme Court sustained in part and denied in part a
husband’s appeal from an amended Family Court decision pending the
entry of a final judgment of divorce from his wife.
In doing so, the Court vacated the "20 percent add-on"
portion of the child-support award, as well as that portion of the
visitation order that required the husband to host the children at the
place where he was living, despite the inadequate room to accommodate
overnight visits. But the
Court denied the appeal with respect to the husband’s other alleged
points of error, thereby affirming the Family Court decision on all
other issues raised. The
Court held that the Family Court failed to make the necessary
case-specific findings to support the 20 percent increase in child
support over the guideline amounts.
The Court also held that the trial magistrate failed to focus on
the best interests of the children in formulating the visitation order
when he compelled the husband to provide overnight visitation for the
children or to pay for a babysitter, in light of husband’s unrebutted
trial testimony that he was living with his brother at a location where
there was inadequate room to accommodate such overnight visitation.
Margaret Mary Hovarth v. Walter R.
02-299 (May 23, 2003)
plaintiff, Margaret-Mary Hovarth, appealed from a Family Court order
denying her motion to require her former husband, the defendant Walter
R. Craddock, to provide her with an accounting of the funds that he
expended with respect to an account that she and her husband had
established for the benefit of their daughter under the Uniform Gifts to
Minors Act (UGMA) prior to their divorce.
The Family Court denied the plaintiff’s motion, ruling that it
did not have jurisdiction to entertain the motion for an accounting,
because the Uniform Transfers to Minors Act (UTMA) G.L. 1956 §§
18-7-20 and 18-7-2 (5), which replaced UGMA in 1985, specifically vested
jurisdiction in the Probate Court to decide such matters.
The Rhode Island Supreme Court denied the appeal and affirmed the
order, holding that the Family Court lacked jurisdiction to act on a
motion for an accounting brought under the UTMA.
v. Chipsco, Inc., No. 02-194 (May 22, 2003)
appeal of the plaintiff in this contract dispute from an order of the
Superior Court directing the parties to proceed to arbitration and
ordering a stay of the trial court proceedings is denied.
The trial justice did not err in finding that valid enforceable
contracts with arbitration provisions resulted from the exchange of
quotations and purchase orders by the parties.
The Court determined that this case is controlled by § 6A-2-207
of the Rhode Island Commercial Code and that plaintiff’s failure to
expressly condition its acceptance on defendant’s assent to the
additional or different terms in its purchase order resulted its
acceptance of the quotation and the formation of a contract pursuant to
§ 6A-2-207(1). As between
merchants, the additional or different terms become a part of the
contract unless the offer expressly limited acceptance to the terms of
the quotation or the additional terms materially alter the contract.
The Supreme Court concluded that neither situation was present in
this case and rejected plaintiff’s argument that a contract was formed
by the conduct of the parties, pursuant to § 6A-2-207(3).
The plaintiff’s appeal is denied and dismissed and the decision
of the hearing justice is affirmed.
Cynthia Leonard v.
Daniel McDowell, No. 02-57 (May 22, 2003)
plaintiff’s appeal from a judgment affirming an arbitration award is
denied and dismissed and the defendant’s cross-appeal is sustained.
The Supreme Court rejected plaintiff’s argument that the
arbitration agreement should be set aside due to discovery violations
and on the ground of mutual mistake.
The Court held that any discovery irregularities were
attributable to plaintiff; the fact that plaintiff miscalculated the
extent of her physical injuries does not support a claim of mutual
mistake. Further, this
Court’s opinion in Asermely v. Allstate Insurance Co., 728 A.2d
461 (R.I. 1999), has no relevance to this case.
the trial justice erred in including in the judgment a provision that
the loss of consortium claims of plaintiff’s minor children survived
the tortfeasor’s release from liability.
The Court held that the claims of the minor children were not
properly before the hearing justice and had never been raised in any
forum. Accordingly, we
vacate that portion of the judgment declaring that the loss of
consortium claims of the minor children survived the release.
State v. Ricardo
Hernandez, No. 99-238 (May 20, 2003)
defendant appealed arguing that the trial justice should not have held a
single trial on criminal charges arising from three incidents in which
he assaulted three female victims. The
Court concluded that joinder was proper under Rule 8 of the Superior
Court Rules of Criminal Procedure, and that the trial justice did not
abuse his discretion in granting the Rule 13 motion to consolidate.
The defendant’s argument that the trial justice should have
severed one of the cases for a separate trial was rejected because it
was not properly preserved
for review. The Court denied
and dismissed the appeal.
Verizon New England
Inc. d/b/a Verizon Rhode Island v. Rhode Island Public Utilities
Commission et al, No. 02-161 (May 20, 2003)
its petition for writ of certiorari, Verizon Rhode Island (Verizon)
asserted that the Rhode Island Public Utilities Commission (PUC)
exceeded its authority in ordering Verizon to resell voice messaging
service (VMS) to local competitors at wholesale prices under the federal
Telecommunication Act of 1996 (the act).
The Court concluded that the PUC exceeded its state statutory
authority in regulating VMS, a mixed interstate and intrastate
communication, when G.L. 1956 § 39-1-1 (c) only allows for regulation
of intrastate communication.
State v. Raymond C.
Bolduc, No. 02-289 (May 19, 2003)
Superior Court convicted Raymond Bolduc (defendant) of one count of
simple assault for punching his neighbor in the face, throwing him to
the floor, and choking him by the neck after the neighbor requested the
defendant to lower the volume of music emanating from his apartment.
The defendant asserted on appeal that the trial justice erred in
denying both his motion for a mistrial and his motion for a new trial
after the complaining witness suffered a seizure while he was testifying
during the trial. The
Supreme Court affirmed the trial justice’s denial of the motion for
mistrial because the court properly assessed the prejudicial impact of
the witness’s seizure on the minds of the jurors
and clearly indicated in his instructions to them that the seizure
should not influence their decision.
The Supreme Court also held that the trial justice was not
clearly wrong and did not overlook or misconceive material and relevant
evidence when he denied the motion for new trial.
The trial justice decided that the neighbor testified credibly
when he said that he entered the apartment with the defendant’s
consent. The only evidence
of self-defense came from the defendant’s own testimony, but he
undercut his credibility on this issue by admitting that he did not feel
threatened by his neighbor.
In re Unique T.,
No. 01-298 (May 16, 2003)
Court affirmed the Family Court’s entry of an order terminating the
respondent-father’s parental rights to his daughter.
The evidence in the record that respondent failed to contact his
daughter, or the social worker assigned to her case, for over six months
constituted prima facie evidence of abandonment under G.L. 1956 §
15-7-7(a)(4). The defendant
may not rely on the fact of his incarceration to rebut this presumption
of abandonment. This Court
affirmed that it is the responsibility of the parent, and not that of
the Department of Children, Youth, and Families, to actively seek
contact between the parent and the child.
State v. Michael R.
Bruneau, No. 02-166 (May 16, 2003)
defendant’s appeal of the Superior Court’s entry of a judgment of
conviction on one count of violating a no-contact order in violation of
G.L. 1956 § 15-15-3 was denied and dismissed.
The formal defect in defendant’s criminal information did not
render that information invalid. Further,
defendant was properly served by mail with the no-contact order, and the
evidence that defendant traveled to complainant’s home and kicked at
her door was sufficient to sustain defendant’s conviction for
violating the order’s prohibition on "contacting, molesting or
otherwise interfering with [complainant] at home * * *."
In re Joseph B.,
No. 00-114 (May 15, 2003)
trial justice did not err in denying respondent juvenile’s motion to
suppress a statement he made to police where he was informed of his Miranda
rights in front of his mother and where he initialed each right to
indicate his comprehension.
Germano DiDonato v.
Paul Kennedy et al, No. 02-94 (May 15, 2003)
The hearing justice did not
to consider and resolve any of the requisite factors before granting the
defendant’s prayer for a preliminary injunction against one of the
the plaintiff’s appeal is sustained and preliminary injunction is
Executrix of the Estate of Edward Couto v. Anthem Casualty Insurance
Group et al, No. 02-326 (May 15, 2003)
case concerns the failure of a party to exercise due diligence to
discover certain evidence that it belatedly sought to use as grounds to
vacate a summary judgment. The
Rhode Island Supreme Court affirmed the trial justice’s order denying
the motion to vacate, holding that the plaintiff failed to show due
diligence in attempting to obtain this evidence before the court entered
summary judgment dismissing the claims.
In particular, the plaintiff could have discovered the evidence
in question before the court entered a summary judgment against her by
simply subpoenaing the witness to a deposition, by interviewing her, or
by otherwise attempting to ascertain what she knew about whether the
plaintiff’s husband was engaging in a corporation-related activity on
the night of the fatal accident .
State v. Richard J.
Beverly, No. 00-524 (May 15, 2003)
trial justice was not arbitrary or capricious when he accepted as
credible the testimony of a police officer who identified defendant at
the scene of a burglary; consequently, he did not err in determining
defendant to be a probation violator.
State v. Jose Luis
Rodriguez, No. 01-517 (May 14, 2003)
Supreme Court affirmed the defendant’s Superior Court convictions for
murder in the first degree, using a firearm while committing a crime of
violence, and carrying an unlicensed weapon.
The Court held that the trial justice did not commit prejudicial
error by delivering an improper Allen charge after the jury
informed the trial justice that it had reached an impasse in its
deliberations. Further, the
Court held that the defendant’s conviction for first-degree murder and
for using a firearm when committing a crime of violence did not violate
the state constitutional prohibition against double jeopardy.
Finally, the trial justice did not err in refusing to instruct
the jury on the lesser-included offense of second-degree murder.
Ann Zarella v. The
Minnesota Mutual Life Insurance Company, No. 01-241 (May 13, 2003)
Zarrella (plaintiff) appealed a Superior Court hearing justice’s
denial of class certification on several claims against Minnesota Mutual
Life Insurance Company (defendant).
We concluded that the hearing justice did not err in denying
class certification because common issues of fact and law did not
predominate over individual ones, nor was a class action the superior
method of litigation. Additionally,
plaintiff appealed the trial justice’s decision to grant defendant’s
Superior Ct. R. Civ. P. 50 motion on her claims of breach of contract,
equitable estoppel, breach of the duty of good faith and fair dealing,
bad faith, § 7-15-2 of the Rhode Island RICO act, § 9-1-2 and punitive
damages. We disagreed and
concluded that the trial justice correctly granted those motions.
The trial justice did err, however, in not granting defendant’s
Rule 50 motion on plaintiff’s negligent misrepresentation claim
because the purpose behind the alleged false materials of retaining
plaintiff as a customer, did not correlate with plaintiff’s actual
reliance of switching insurance companies.
Therefore, we affirmed in part and vacated that portion of the
jury verdict that found defendant liable for negligent
Raymond Volpe et al
v. James Andrew Gallagher et al, No. 01-463 (May 12, 2003)
3, 1994, James Gallagher (Gallagher), who suffered from a delusional
mental illness, shot and killed Ronald Volpe (victim), his next-door
neighbor, with a shotgun that he kept at his mother’s home.
The victim’s next of kin, plaintiffs Raymond Volpe and Joyce
Almonte, accused the homeowner-defendant, Sara Gallagher, of negligently
allowing her adult son, Gallagher, to keep guns and ammunition on her
homeowner-defendant maintained that she was unaware that her son kept
and stored such munitions on her property, and that, because her son had
no history of violence, she could not have foreseen that he would murder
her next-door neighbor. After
the jury returned a verdict in favor of the victim’s family, the trial
justice overturned that verdict and granted defendant’s motion for a
Supreme Court held that, as a possessor of property, defendant owed a
duty to her neighbor, the victim, to exercise reasonable care to control
her son’s arms-bearing activity on her adjacent property because she
knew about her son’s mental illness, yet nevertheless allowed him to
possess and to store guns and ammunition there.
The defendant’s conduct created an unreasonable risk of bodily
harm to the victim and to others on and outside her property who
forseeably might have come within the zone of danger that her mentally
disturbed son’s arsenal posed for all those in the vicinity.
Under both the totality of the circumstances test and the
balancing approach, the Court held that defendant breached a duty to the
victim when she let a delusional and paranoid person keep firearms and
ammunition at her house, regardless of the absence of any prior similar
incidents of violence on her son’s part.
The absence of a violent past did not excuse defendant’s
conduct in failing to exercise control over her property to prevent her
mentally ill son from possessing guns thereon.
Thus, the Supreme Court concluded that the trial justice erred as
a matter of law in granting a new trial and it remanded the case for
entry of a judgment consistent with the jury’s verdict.
State v. John Brown,
No. 02-267 (May 12, 2003)
defendant appeals the trial justice’s decision denying his Rule 35
motion to reduce sentence in this probation violation case.
The Court denied and dismissed his appeal because defendant
failed to file his motion within 120 days of the imposition of his
Freitas v. Nancy L. Mello, Town Treasurer of the Town of Tiverton et al,
No. 02-251 (May 12, 2003)
plaintiff, Christopher J. Freitas, appealed from a summary judgment
entered in the Superior Court in favor of the defendants, the Town of
Tiverton, Tiverton’s Treasurer Nancy L. Mello, and two Tiverton police
officers, Richard Medeiros and Timothy Panell.
Officer Panell had offered undisputed deposition testimony that,
after he arrested the plaintiff and handcuffed his wrists behind his
back, the plaintiff fell forward while Panell was holding the
plaintiff’s left elbow with one arm while escorting him to the police
station. Because it is possible to infer from the undisputed testimony
that the plaintiff’s injuries were the proximate result of the
defendants’ breach of the duty of reasonable care owed to the
plaintiff, summary judgment was not properly granted.
Journal Company v. Convention Center Authority, No. 02-132 (May 12,
plaintiff, the Providence Journal Company (the Journal,) appealed the
Superior Court’s entry of summary judgment for the defendant, the
Convention Center Authority (the Authority).
The Journal had requested, pursuant to the Access to Public
Records Act (APRA), G.L. 1956 chapter 2 of title 38, the disclosure of
several final contracts the Authority had entered into. A Superior Court
justice granted the Authority’s motion to redact the purchase price of
various items in the contracts, and ordered further redactions sua
sponte. We vacate the
judgment because the final prices, the consideration offered by the
purchaser of the goods and services, were part of the final contract and
thus must be disclosed. Further,
under the general principles of the adversary system, a party should not
be granted relief which it did not request, and thus the suasponte
redactions were in error.
D & H Therapy
Associates v. Jeffrey Murray, No. 02-249 (May 9, 2003)
D & H Therapy Associates had brought an action for damages on an
unpaid bill for services.
The only evidence defendant Jeffrey Murray put forth in his
motion to deny summary judgment was his own affidavit stating his
opinion that plaintiff’s prices were unreasonably high and that he was
billed for some services that he never received.
This testimony, however, directly contradicted the testimony a
witness had given on Murray’s behalf in a federal action for damages.
Having vouched for that testimony and for the reasonableness and
accuracy of the bill in the federal proceeding, we hold that the
defendant is estopped from disputing the evidence in the matter before
us now. Under
the doctrine of judicial estoppel, we cannot allow a litigant who has
taken advantage of evidence, presented as truthful in one forum, to
thereafter challenge the veracity of that evidence for his added
we hold that the defendant cannot challenge the bill or the
plaintiff’s affidavit, no genuine issues of material fact remain and
the plaintiff is entitled to judgment as a matter of law.
James G. Armenakes
v. State of Rhode Island, No. 02-56 (April 30, 2003)
Supreme Court affirmed a judgment denying post-conviction relief to
defendant for a conviction for possession of cocaine pursuant to an Alford
plea. The Court held that
the plea was knowingly and voluntarily entered, that defendant was not
denied the effective assistance of counsel and that the plea formalities
were more than adequately met. Subsequent
modification of sentence at defendant’s behest was not fatal to the
plea; defendant was at all times present in the court room, and
understood the nature and consequences of the plea and that an Alford
plea results in a conviction.
Sydney Earl Scott
Taylor v. Ashbel T. Wall, in his capacity as Director of Corrections of
the State of Rhode Island et al, No. 01-258 (April 30, 2003)
applicant appealed from a Superior Court’s denial of his application
for post-conviction relief. The
applicant contended that he is entitled to relief because of a comment
made by the trial justice to the jury.
The Court concluded that res judicata barred that argument.
The applicant’s remaining two arguments centered around a
procedure invoked at his trial whereby the child-victim’s testimony
was videotaped and subsequently shown to the jury.
According to the applicant, this procedure deprived him of his
Sixth Amendment right to confrontation.
The Court held that the procedure was proper and the applicant
had the opportunity to effectively confront the witness at the time of
the videotaping. Accordingly,
the Supreme Court denied the appeal.
Development Corp. v. Universal Properties Group, Inc., et al, No.
01-287 (April 30, 2003)
The plaintiffs are entitled
to injunctive relief where defendants, after expressly being prohibited
from doing so, deliberately placed a retaining wall within a cross
easement for their economic benefit alone, and where the obstruction
could impede plaintiff’s development of its own property.
Woloohojian v. Elizabeth V. Bogosian, No. 01-468 (April 29, 2003)
appealed from a Superior Court judgment ordering the distribution of a
partnership’s assets in connection with the closure of a receivership.
The plaintiff petitioned the partnership into receivership. The
defendant challenged the distribution of two of the partnership’s
parcels of real property that were liquidated pursuant to separate
orders entered in 1996 and 1999. Accordingly,
the Supreme Court concluded that those transfers were not reviewable in
this appeal as the appeal is out of time.
Further, the Court determined that the hearing justice did not
improperly disburse the partnership’s additional assets and close the
receivership in the order from which defendant appealed.
Accordingly, the Supreme Court affirmed the Superior Court
James Gardiner v.
Muriel Gardiner, No. 02-176 (April 29, 2003)
defendant, Muriel A. Gardiner (Muriel), challenged a Family Court
justice’s refusal to find plaintiff, James B. Gardiner (James), in
contempt for failing to abide by the terms of two court orders requiring
that he specifically perform the terms of a property settlement
agreement. The Family Court
justice ruled that James could not be found in contempt because he was
no longer bound by the terms of the agreement at the time of the
contempt hearing. Although
James was not contractually bound to perform at the time of the contempt
hearing, the Court concluded that his earlier disregard for the orders
warranted reversal of the Family Court justice’s order and Muriel was
entitled to receive compensation for expenses and attorney’s fees
incurred as a result.
Alexander M. Deus,
as Court-Appointed Guardian on behalf of his Mother and Ward,
Emerenciana Deus, No. 02-185 (April 29, 2003)
plaintiff filed suit against the defendant-employer for work related
injuries suffered by his mother. The
trial justice denied plaintiff’s motion for summary judgment and
granted defendant’s cross-motion for summary judgment. The
plaintiff claimed that, although his mother received adequate workers’
compensation benefits, defendant was not immune from suit under the
Workers’ Compensation Act (the act).
He argued that because the corporation that administered
workers’ compensation benefits on behalf of defendant listed
plaintiff’s mother as an employee, defendant was not entitled to
protection under the act. This
Court denied and dismissed the appeal concluding that, although the
workers’ compensation paperwork did not list defendant as the
employer, defendant was, in fact, the employer who paid the premiums for
protection under the act. Thus,
because plaintiff’s mother received the benefits to which she was
entitled, this Court refused to strip defendant of protection under the
act because the Department of Labor and Training knew and approved of
State v. Craig Price,
No. 01-64 (April 18, 2003) (Corrected)
defendant’s appeal of Family Court judgments holding him in civil
contempt and finding him guilty of criminal contempt was denied and
dismissed. Because the
defendant had been sentenced to the maximum punishment which could be
imposed on him as a juvenile, he was in danger of no further criminal
penalties; moreover, the privilege of self-incrimination does not apply
to psychiatric interviews which may lead to civil commitment.
Given that defendant was not justified in defying the Family
Court orders based on his Fifth Amendment privilege, the trial justice
was clearly correct in finding him guilty of criminal contempt and in
denying defendant’s motion for judgment of acquittal.
The Court declined to review the validity and propriety of the
defendant’s sentence, holding that the defendant’s appeal of his
sentence was premature given that the defendant had not filed a motion
to reduce sentence in the Family Court.
This Court held that the defendant’s claim of double jeopardy,
numerous claims of error in the jury instructions, his Batson
challenge to the state’s use of peremptory challenges, and alleged
prejudicial delay in the prosecution of his case, were without merit.
Depositors Economic Protection Corporation v. Coffey and Martinelli,
Ltd. et al v. Muriel A. Lanfredi, No. 00-517 (April 18, 2003)
and dismiss defendant Muriel A. Lanfredi’s appeal from an order
striking her demand for a trial by jury, and sustain the defendant’s
appeal from the dismissal of her cross-claim against co-defendant John
E. Martinelli. The
defendant’s guaranty extended to the notes at issue here through the
clear and unequivocal language of the loan agreement, and the defendant
waived her right to a jury trial regarding the notes at issue, which we
consider together with the guaranty and the loan agreement as part of a
single, continuous transaction. The
motion justice erred in dismissing the defendant’s cross-claim against
Martinelli because Rhode Island Depositors’ Economic Protection
Corporation (DEPCO) settlement statute, G.L. 1956 § 42-116-40, does not
extinguish obligations derived from contractual indemnity.
Mary M. Kurczy,
Individually and as Parent and next friend of Lucas Landry, a minor v.
St. Joseph's Veterans Association, Inc., No. 00-387 (April 15, 2003)
case involves a premises-liability action brought by the plaintiff, Mary
M. Kurczy, in her capacity as the mother and next friend of her son,
Lucas Landry. On May 19,
1990, ten-year-old Lucas, while on the defendant’s premises as an
invited guest during an evening wedding reception, was seriously injured
by falling to the bottom of an outdoor concrete stairwell on the
defendant’s premises. The
Rhode Island Supreme Court first encountered the facts of this case in Kurczy
v. St. Joseph Veterans Association, Inc., 713 A.2d 766 (R.I. 1998),
after which the Court remanded the case for a new trial.
Now, after a second Superior Court trial and a verdict in favor
of the plaintiff, the defendant property-owner appealed to the Supreme
Court, arguing that the trial justice committed a host of reversible
errors. The plaintiff also
filed a cross appeal, challenging the trial justice’s refusal to award
postjudgment interest while the appeal to this Court was pending.
Rejecting the defendant’s arguments en toto, the
Rhode Island Supreme Court affirmed the trial court’s judgment and
denied the appeal. The Court
also denied the plaintiff’s cross appeal, reaffirming its recent
decision in Rhode Island Insurer’s Insolvency Fund v. Leviton
Manufacturing Co., Inc., 813 A.2d 47 (R.I. 2003) (per curiam)
(holding that postjudgment interest under G.L. 1956 § 9-21-10 is only
appropriate after a judgment that finally adjudicates the rights of the
parties thereto, and is not appropriate while an appeal is pending).
affirming the judgment, the Court rejected challenges to (1) the trial
justice’s denial of motions for judgment as a matter of law, (2) the
defendant’s motion for a new trial, (3) various evidentiary rulings
involving, inter alia, the
admissibility of expert-witness and lay-opinion testimony, and (4)
certain jury instructions, including spoliation, a so-called Allen
charge, and the duty of care owed when children are invitees on
State of Rhode
Island v. Rhode Island Brotherhood of Correctional Officers, No.
01-590 (April 15, 2003)
decision of the trial justice vacating an arbitration award is affirmed.
The Supreme Court held that an arbitrator’s decision reducing
from termination to a sixty-day suspension a disciplinary sanction
imposed by the Director of Corrections for a serious infraction
impacting on institutional security was an irrational result and in
excess of the authority of the arbitrator. Although pursuant to G.L. §
29-9-1, an arbitrator may modify employer-imposed disciplinary
sanctions, in Rhode Island Department of Corrections v. R.I
Brotherhood of Correctional Officers, 725 A.2d 296 (R.I. 1999), the
Supreme Court has previously held that given the "awesome
responsibility" of the Director of Corrections in the area of public
safety, the director must have the ultimate power to fashion an
appropriate disciplinary sanction. The
defendant’s appeal is denied and dismissed and the judgment vacating
the arbitration award is affirmed.
V.S. Haseotes &
Sons, L.P., by and through its general partners Lily Bentas and Byron
Haseotes v. Demetrois Haseotes et al, No. 02-58 (April 15, 2003)
Superior Court judgment confirming an arbitration award is affirmed.
The Supreme Court upheld the finding by the trial justice that an
after-the-fact discovery that the arbitrator’s law partner’s brother
represented defendant in a prior bankruptcy proceeding is an
insufficient basis to overturn an arbitration award.
The Court concluded that even if the arbitrator was aware of the
connection, and nothing in the record suggests that she was, such a
remote and trivial relationship could not be characterized as
prejudicial. Further, the
Court declined to adopt a standard that constructive notice of a
potential conflict is sufficient to show evident partiality by an
Terry S. Lieberman
v. Bliss-Doris Realty Associates, L.P., et al, No. 02-191 (April 14,
defendants in this premises liability case appealed the trial judge’s
order granting plaintiff’s motion for a new trial.
This matter arose out of an injury sustained by plaintiff while
descending a common stairwell on defendants’ property.
The trial justice granted plaintiff’s motion stating that the
court could not sustain the jury’s verdict that the defendant was not
negligent, and that the court committed an error of law in charging the
jury on notice separately from its other negligence instructions.
This Court held that reasonable minds could differ because the
facts could support a jury verdict for plaintiff or defendant, and also
the manner in which the trial justice charged the jury on notice was not
error. The defendant’s
appeal was sustained.
Joseph M. Brito,
Sr. v. Matthew J. Capone et al, No. 02-107 (April 11, 2003)
defendants’ appeal of the Superior Court’s entry of summary judgment
in favor of plaintiff was denied and dismissed. The
defendants conceded liability on the promissory note executed in favor
of plaintiff and did not submit any evidence supporting their
disagreement with the amount due and the plaintiff’s right to enforce
the note. Further, the trial
justice properly denied the defendants’ motion to disqualify the
plaintiff’s counsel because the defendants failed to submit evidence
either that the attorney’s representation of the plaintiff and prior
representation of defendant Matthew Capone were substantially related,
or that information counsel received during his prior representation
would inure to the defendants’ disadvantage.
Direct Action for
Rights and Equality v. Bernard E. Gannon, in his capacity as Chief of
Police for the City of Providence, No. 99-22 (April 10, 2003)
hold that the trial justice did not err in (1) ordering defendant to pay
the costs of redacting information from certain records provided to
plaintiffs, (2) determining that defendant should not have been held in
civil contempt and not be fined pursuant to G.L 1956 § 38-2-9(d), and
(3) modifying his original order so as to allow for redaction of social
security numbers of the complainants and badge numbers of the officers
against whom the complaints were made.
We do hold, however, that the trial justice erred in not awarding
plaintiff attorneys’ from the date of the commencement of this action.
M.D. v. Alfred Toselli, M.D., No. 02-425 (April 10, 2003)
Supreme Court affirmed summary judgment for a defendant accused of
slandering a medical doctor who had worked under his supervision, when
she was employed at a hospital. The
Court held that the one-year statute of limitation governing actions for
words spoken had expired when plaintiff filed her Superior Court
lawsuit. The Court also held
that plaintiff failed to demonstrate any compelling circumstances that
would justify the application of a discovery rule to her slander claims;
and that, in any event, application of the discovery rule would be
unavailing because plaintiff failed to sue within one year of the date
that she discovered or should have discovered that defendant had spoken
the words in question.
Dolores Ciambrone v.
Coia & Lepore, Ltd., et al, No. 02-59 (April 10, 2003)
Superior Court properly granted summary judgment to the defendants in
this attorney malpractice case. The
plaintiff was time-barred from filing suit more than three years after
discovery of the alleged negligent advice, and she failed to demonstrate
that defendants were the proximate cause of any injuries.
Despite plaintiff’s later contentions that she had no
recollection of said discovery more than three years prior to filing
suit, the Supreme Court held that plaintiff had failed to demonstrate
inconsistencies in the record to warrant a trial on the merits.
No genuine issue of material fact existed and the defendants were
entitled to judgment as a matter of law.