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Opinions (2002-2003)

 
Supreme Court
Published Opinions 2002 - 2003 Term

National Hotel 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)

This is 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.

The 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)

The 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.  

United Lending Corporation v. City of Providence, No. 00-499 (July 1, 2003)

The 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.

On 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.

Kingfield Wood Products, Inc. v. Thomas Hagan, et al, No. 02-345 (July 1, 2003)

The 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 is vacated.

First Bank & Trust Co. v. City of Providence, No. 01-0140 (July 1, 2003)

A 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)

In 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)

Petitioning 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)

The 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."   

Bartholomeus T. deBont v. Darlene P. deBont, No. 02-593 (June 27, 2003)

The 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 parties separated. 

Further, 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)

The 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 consolidated.  Accordingly the appeals are considered separately. 

The 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)

The 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 for declaratory 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" credits. 

Richard A. Skolnik v. Charles R. Mansolillo et al, No. 02-49 (June 16, 2003)

The 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.

Interstate 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)

In 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 to $1,000.

Champlin's Realty 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, 2003)(Corrected)

The 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)

Affirming 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. 

Geraldine Mills, M.D. v. Gloria Nahabedian, No. 02-416 (June 11, 2003)

In 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)

This 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)

The 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)

The 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)

The 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)

The 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)

Stephen 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)

The 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. 

The 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. 

Later, 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 harmless.   

State v. Edward Vashey, No. 01-60 (June 9, 2003)

The pro 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)

The 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.

Francisca Rodriquez et al v. Providence Housing Authority et al, No. 02-562 (June 9, 2003)

In 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)

The 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.

Extrusions Inc., Win-Vent Division v. National Grange Mutual Insurance Company, No. 02-481 (June 9, 2003)

Extrusions 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)

The 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 underinsured-motorist claims.

State v. Keith Werner, No. 94-745 (June 5, 2003)

The 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)

The 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 of mandamus.  

Don Krivitsky d/b/a Coastline Copters v. Town of Westerly, No. 02-370 (June 3, 2003)

The 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, 2003)

The 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.

Carolmarie Plourde et al v. Ray Myers, alias Jane Doe, No. 02-12 (June 3, 2003)

In this 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)

The 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 problems.      

Fernando E. Nunes et al v. Meadowbrook Development Co., Inc., No. 02-506 (June 3, 2003)

The 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 reversed.

Harry Bogosian et al v. Charles Bederman et al, No. 02-144 (June 3, 2003)

The 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, 2003)

There 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. 

Metropolitan Group Property and Casualty Insurance Company v. Devin C. Lopes et al, No. 02-186 (June 2, 2003)  (Corrected)

The 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.  Affirmed.

GBM Acquisitions, Inc. v. Susan Adams d/b/a The Waterfront Cafe, No. 02-252 (June 2, 2003)

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.  Affirmed.

William M. White v. R. Gary Clark, Administrator, No. 01-550 (June 2, 2003)

This 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)

The 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)

In Re Christopher B. et al, No. 01-150 (May 30, 2003)

In 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.  

Finally, 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 granted.  

Granoff Realty II, Limited Partnership v. Thomas Rossi, in his Capacity as Tax Assessor for the City of Providence, No. 02-235 (May 30, 2003)  Corrected

State v. Ronnie Frazar, No. 02-192 (May 28, 2003)  Corrected

The 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)

The 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)

The 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)

The 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. Craddock, No. 02-299 (May 23, 2003)

The 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.

Polytop Corporation v. Chipsco, Inc., No. 02-194 (May 22, 2003)

The 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)

The 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.

However, 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)

The 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)

In 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)

The 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)

This 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)

The 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)

The 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 plaintiffs.  Consequently, the plaintiff’s appeal is sustained and preliminary injunction is vacated.

Maria Medeiros, Executrix of the Estate of Edward Couto v. Anthem Casualty Insurance Group et al, No. 02-326 (May 15, 2003)

This 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)

The 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)

The 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)

Ann 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 misrepresentation. 

Raymond Volpe et al v. James Andrew Gallagher et al, No. 01-463 (May 12, 2003)

On July 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 property.  The 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 new trial. 

The 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)

The 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 original sentence.

Christopher J. Freitas v. Nancy L. Mello, Town Treasurer of the Town of Tiverton et al, No. 02-251 (May 12, 2003)

The 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.  

The Providence Journal Company v. Convention Center Authority, No. 02-132 (May 12, 2003)

The 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)

Plaintiff 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 benefit.  Because 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)

The 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)

The 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.  

Renaissance 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.

James H. Woloohojian v. Elizabeth V. Bogosian, No. 01-468 (April 29, 2003)

The defendant 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 justice’s decision.

 

James Gardiner v. Muriel Gardiner, No. 02-176 (April 29, 2003)

The 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)

The 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 the arrangement.   

State v. Craig Price, No. 01-64 (April 18, 2003)  (Corrected)

The 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. 

Rhode Island Depositors Economic Protection Corporation v. Coffey and Martinelli, Ltd. et al v. Muriel A. Lanfredi, No. 00-517 (April 18, 2003)

We deny 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)

This 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).

In 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 premises.  

State of Rhode Island v. Rhode Island Brotherhood of Correctional Officers, No. 01-590 (April 15, 2003)

The 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)

A 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 arbitrator.    

Terry S. Lieberman v. Bliss-Doris Realty Associates, L.P., et al, No. 02-191 (April 14, 2003)

The 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)

The 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)

We 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.

Geraldine Mills, M.D. v. Alfred Toselli, M.D., No. 02-425 (April 10, 2003)

The 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)

The 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.  

In re Jonathan P., No. 01-65 (April 8, 2003)(Corrected)

The respondent appealed a Family Court decree terminating his parental rights.  Specifically, the respondent, incarcerated in another state at the time of the hearing, asserted that the trial justice erred in (1) refusing to allow him use of transcripts from his hearing that he could not attend due to his incarceration and (2) denying his motion for a court-appointed psychologist to testify on the respondent’s behalf.  This Court concluded that the trial justice provided respondent with reasonable participation in his hearing through the submission of an affidavit and consultation with his attorney and that a court-appointed psychologist was not required since the majority of the finding of unfitness was not related to respondent’s mental health.  

Kathleen Yankee et al v. Diane LeBlanc et al v. Town of Cumberland, No. 02-127 (April 4, 2003)

The Superior Court’s entry of judgment on behalf of the Town of Cumberland was affirmed in part and reversed in part.  The Superior Court properly concluded that the town’s remedial measures in respect to the design of the highway did not constitute egregious conduct, and thus the public duty doctrine immunized the town from liability for its maintenance and design of roadways.  The entry of summary judgment in favor of defendant on plaintiffs’ claim that the town had breached its duty to trim vegetation, however, was vacated because the evidence submitted by plaintiffs established a triable issue of material fact. 

Rosemary DiGuilio v. Rhode Island Brotherhood of Correctional Officers et al, No. 01-611 (April 4, 2003)

The plaintiff, an employee of the Department of Corrections and a member of the Rhode Island Brotherhood of Correctional Officers (the union), brought a declaratory judgment action against her employer in Superior Court after the union refused to take her grievance to arbitration.  In her suit, the plaintiff did not allege, much less prove, that the union breached its duty of fair representation when it declined to take her grievance to arbitration.  We hold that a claim of unfair representation was a prerequisite to her suing to enforce her rights under the collective bargaining agreement in Superior Court, and that without such a claim, the plaintiff did not have standing to bring the declaratory judgment action.

Town of North Kingstown v. Local 473, International Brotherhood of Police Officers, N.A.G.E., et al, No. 02-149 (April 4, 2003)

The plaintiff, Town of North Kingstown (town), had been granted summary judgment on its complaint for a declaratory judgment stating that a town employee, a police officer under investigation by the town for possible improper conduct while on duty, had no right to have a union representative present during the interrogation.  The defendants, the International Brotherhood of Police Officers, N.A.G.E., Local 473, and its president, Patrolman Joseph Hart, and vice president, Patrolman Patrick Flanagan, in their official capacities, appealed.  We denied and dismissed the appeal because the Law Enforcement Officers’ Bill of Rights is the sole source of remedies available to an officer being interrogated, and the Bill of Rights does not provide an officer with the right to have a union representative present during an investigation.

State v. Michael Caprio, No. 01-459 (April 1, 2003)

The defendant appealed the hearing justice’s finding that he violated the terms of his probation asserting that the hearing justice erred in denying his motion to dismiss for lack of jurisdiction under the Interstate Agreement on Detainers Act (IADA), denying his motion for continuance to appoint new counsel, and refusing to allow a line of cross-examination questioning regarding previous amicable meetings between the complainant and defendant.  This Court concluded that while the IADA does not apply to probation violation hearings, once the detainee is in the state he can be tried on any other pending charge.  The hearing justice did not abuse his discretion in denying defendant’s motion for continuance nor did he abuse his discretion in limiting the cross-examination as to prior amicable meetings between complainant and defendant.   

Frederick R. DeCosta et al v. Joseph DeCosta et al, No. 01-619 (April 1, 2003)

 The appeal of the defendant from a decision of a Superior Court trial justice in favor of the plaintiff in this trespass and ejectment action is sustained in part and denied in part.  That portion of the judgment declaring that a fence erected by defendant is an encroachment on plaintiff’s property and ordering that it be removed is affirmed.  The finding of the trial justice that defendant failed to establish ownership by adverse possession or pursuant to the doctrine of acquiescence is affirmed.  However, that portion of the judgment denying defendant’s counterclaim for adverse possession of land on defendant’s side of a hedgerow that was jointly planted and maintained by the parties as a common boundary line is vacated.  The Supreme Court held that the trial justice erred in finding that the doctrine of acquiescence was not applicable to the facts in this case.  The agreement of the parties to plant a hedgerow that served as an obvious boundary marker between the parcels, for a period in excess of the statutory term for adverse possession is conclusive evidence of an agreement to establish a boundary line and precludes a party from later claiming that the hedgerow is not the true boundary.

State of Rhode Island, ex rel. Town of Portsmouth v. Joseph H. Hagan, No. 01-488 (April 1, 2003)

The petition for certiorari seeking review of an order of the District Court that suppressed breathalyzer test results is granted and the judgment is quashed.  The Supreme Court concluded that members of the Portsmouth Police Department acted appropriately in transporting defendant outside the town for purposes of a breathalyzer test when Portsmouth’s machine malfunctioned. The officer did not relinquish custody of defendant at the town line.  Further, the jurisdictional borders confining the authority of the state’s various police departments have become blurred by time and necessity; therefore, the extraterritorial travel of a defendant who is in lawful custody for the performance of legitimate law enforcement duties is sanctioned.  However, the limited authority to arrest a person outside the jurisdictional limits of the police department is governed by statute and is subject to greater constitutional scrutiny and a showing of probable cause. 

Bowen Court Associates et al v. Ernst & Young, LLP et al, No. 01-294 (March 27, 2003)

After unsuccessfully defending against a lawsuit brought by the Rhode Island Depositors Economic Development Corporation (DEPCO) to recover the unpaid balance and interest on a loan originally borrowed from the Rhode Island Central Credit Union, seeDEPCO v. Bowen Court Associates, 763 A.2d 1005 (R.I. 2001), the plaintiffs filed suit against the defendant-accountants who audited the credit union’s financial statements.  The plaintiffs alleged that they chose the credit union as the lender for their real-estate project based on the accountants’ negligent accounting services that they provided to the credit union.  According to the plaintiffs, the accountants’ negligence caused the credit union’s financial statements to misrepresent its financial strength.  Eventually, the credit union succumbed to a receivership and was unable to fund the balance of its loan commitment to the plaintiffs.  The Superior Court granted summary judgment in favor of the accountants, ruling both that the plaintiffs’ claims were time-barred by the three-year statute-of-limitations for professional malpractice claims, as set forth in G.L. 1956 § 9-1-14.1, and that G.L. 1956 § 42-116-40 precluded the plaintiffs’ indemnification claim against the accountants because they previously resolved their liability to DEPCO in a judicially-approved settlement that included their alleged negligence vis-à-vis the credit union.  

The Rhode Island Supreme Court affirmed the motion justice’s summary judgment, holding that the statute of limitations for professional-malpractice claims barred the plaintiffs’ third-party claims against the accountants for professional negligence, irrespective of the lack of contractual privity between the parties.  The Court also held that § 42-116-40 precluded the plaintiffs’ indemnification claim against the accountants with respect to matters addressed in the prior judicially-approved settlement with DEPCO. 

Theodore E. Stebbins, Jr. v. Melinda Blauvelt Wells, et al, No. 01-620 (March 27, 2003)

A buyer of waterfront property in Little Compton sued the seller and the real-estate agents involved in selling the property, alleging numerous causes of action arising from the averred failure of the agents and the seller to disclose to the buyer that the property was susceptible to an erosion problem.  In addition to his common law and other statutory causes of action, the plaintiff-buyer alleged a private cause of action for damages under G.L. 1956 § 5-20.8, the real-estate sales disclosure act.  In the buyer’s first appeal from a Superior Court summary judgment in favor of defendants, Stebbins v. Wells, 766 A.2d 369 (R.I. 2001) (per curiam) (Stebbins I), the Rhode Island Supreme Court affirmed the court’s summary judgment in favor of defendants on the count in the amended complaint alleging fraud and misrepresentation.  But the Court vacated the Superior Court’s order granting summary judgment "on the disclosure issue" and remanded the case to the Superior Court for a trial, holding that a material issue of fact remained regarding whether the alleged erosion was severe enough to constitute a disclosable defect under § 5-20.8-1 et seq.  

Following this Court’s remand, the trial justice again granted summary judgment — this time in favor of the agent defendants with respect to plaintiff’s alleged private cause of action for damages under the disclosure act.  In doing so, the Superior Court ruled that Stebbins I affirmed the summary judgment dismissing all the buyer’s other remaining claims, except for the alleged private right of action for damages under § 5-20.8.  

On appeal from the Rule 54(b) judgment granting summary judgment in favor of the agents on this claim, the Supreme Court of Rhode Island affirmed in part and reversed in part:  the Court affirmed the summary judgment in favor of the agents on the buyer’s claim for damages under the act because a private right of action for damages was not specifically provided for by the Legislature as a means of enforcing the act; but the Court reversed the motion justice’s ruling that interpreted Stebbins I as having affirmed summary judgment in favor of defendants on all the buyer’s other remaining claims.  

In doing so, the Court confirmed what it ruled in Stebbins I, 766 A.2d at 373, and held that § 5-20.8, together with other applicable sections of the General Laws, created a duty on the part of real-estate agents and sellers to disclose material defects to a buyer in situations where they have special knowledge not apparent to the buyer and are aware that the buyer is acting under a misapprehension as to facts which would be important to the buyer and would probably affect his decision to buy the property.  In light of this conclusion and the holding in Stebbins I, the Court remanded the case to the Superior Court for a trial on the buyer’s negligent omission and negligence claims against all defendants and on the breach-of-fiduciary-duty claim against the buyer’s agent.  Because the Superior Court’s granting of summary judgment on the buyer’s other claims in his amended complaint was not challenged on the appeal in Stebbins I, the Court held that the buyer waived any right to object to their dismissal from the case.

Laura Love Rose et al v. Firstar Bank et al, No. 01-556 (March 27, 2003)

In this action by the beneficiaries of an Ohio trust to remove an Ohio bank as trustee, the trustee/bank petitioned for certiorari to review the Superior Court’s denial of its motion to dismiss the complaint for lack of personal jurisdiction.  The Supreme Court held that the Superior Court lacked personal jurisdiction because the bank, in its capacity as trustee, never purposefully availed itself of the benefits of doing business in this jurisdiction, and the beneficiaries’ trust-mismanagement claims did not arise out of the bank’s Rhode Island contacts.

John Jalowy v. The Friendly Home, Inc., et al, No. 01-238 (March 26, 2003)

After a series of confrontations between the plaintiff and certain staff nurses who worked for the defendant nursing home, the defendant nursing home and its administrator barred the plaintiff from visiting at the home even though his mother was a resident there.  Although a Superior Court jury found that the defendants did not retaliate against the plaintiff for complaining about the home and its nursing staff, it found defendants liable for intentional and negligent infliction of emotional distress.  The trial justice then granted judgment as a matter of law for the defendants and dismissed these claims.  On appeal, the Supreme Court held that the plaintiff was not entitled to a judgment notwithstanding the verdict or a new trial on his claim that the defendants retaliated against him for filing a report under the Abuse in Health Care Facilities Act when they barred him from visiting at the nursing home.  Based on the evidence, a reasonable jury could conclude that the defendants’ actions were not retaliatory.  Moreover, the trial justice did not err in granting the defendants’ motion for judgment as a matter of law on the plaintiff’s claim that the defendants intentionally caused him emotional distress, because the plaintiff did not show that the defendants’ nonretaliatory actions could be classified as extreme and outrageous. 

Dr. Lee H. Arnold, in his capacity as Director, Rhode Island Department of Labor and Training v. Rhode Island Department of Labor and Training Board of Review and Gail Adler et al, No. 01-237 (March 26, 2003) (Corrected)

The Supreme Court reversed a District Court’s calculation of attorney’s fees under G.L. 1956 § 28-42-37(b).  In doing so, the Court held that the calculation of attorney’s fees under the statute was an appealable decision rather than a ministerial function.  Further, the Court held that attorney’s fees should be 15 percent of any unemployment compensation benefits awarded based on the time of unemployment following the filing of an appeal and extending prospectively until benefits expire.  The case was remanded to the District Court to recalculate attorney’s fees. 

Roy LaCroix v. David Walker, No. 01-350 (March 25, 2003)

The trial justice did not err in granting the plaintiff’s motion for a new trial where the justice reviewed and commented on the evidence and on the credibility of witnesses, exercised independent judgment in rendering his decision, was not clearly wrong, and did not overlook material evidence. 

Harris N. Rosen v. E. Rosen Company, No. 01-452 (March 25, 2003)

The decision of the hearing justice granting the receiver’s request to assign, nuncprotunc, certain rights, including copyrights to Sherwood Brands, Inc., (Sherwood), the original buyer of the debtor’s assets in this receivership proceeding is affirmed.  The Supreme Court held that Smith Enterprises and Jake Smith (Smith), who were not parties to the sale by the receiver have no standing to challenge a nuncpro tunc assignment of rights in a receivership, notwithstanding that the assignment may be useful to Sherwood in its federal suit against Smith alleging copyright infringement. Further, a justice of the Superior Court may reform a written contract when it appears that the parties failed to correctly set forth their prior understanding of the terms of the agreement, including the power to grant a nuncprotunc order.

Luis Tavarez v. State, No. 02-4 (March 24, 2003)

The Superior Court’s denial of applicant’s petition for post-conviction relief was affirmed.  The  hearing justice properly concluded that there was sufficient factual basis for applicant’s plea of nolo contendere and that the trial justice’s colloquy with defendant comported to the requirements of Rule 11 of the Superior Court Rules of Criminal Procedure.  The July 20, 2000 amendment to G.L. § 12-12-22 requiring that aliens be notified that nolo contendere pleas could have immigration consequences was not retroactively applicable to applicant’s July 6, 2000 plea. 

Paul F. Lischio et al v. Zoning Board of Review of the Town of North Kingstown,et al, No. 2001-505 (March 21, 2003)

The petition for certiorari seeking review of a judgment of the Superior Court that affirmed in part and denied in part a decision of the respondent, Zoning Board of Review of the Town of North Kingstown, is granted and the judgment is quashed.  The Supreme Court held that denial of a dimensional variance for road purposes for an otherwise landlocked parcel was error.  Further, it was error for the zoning board and the trial justice to deny dimensional relief based on the proposed use of the parcel because the use – a mini self-storage facility – is a permitted use. The correct inquiry was whether substantial evidence was produced demonstrating that the denial of the dimensional variance amounts to more than a mere inconvenience which, under the prior act, "means that there is no other reasonable alternative to enjoy a legally permitted beneficial use of one’s property."  G.L. 1956 § 45-24-41(d)(2). 

In the Matter of James A. O'Leary, No. 03-49 (March 14, 2003)

In this disciplinary decision, the Supreme Court adopted the recommendation of the Supreme Court Disciplinary Board (board) that respondent, James A. O’Leary (respondent), be suspended from the practice of law for sixty days for violating Rule 8.4(c) of the Rules of Professional Conduct.  The Court cited numerous mitigating circumstances resulting in this sanction, including respondent’s remorse, full restitution, cooperation with the board and the fact that respondent did not misappropriate client funds. 

Domingo Goncalves M. NMU Pension Trust, No. 02-10 (March 14, 2003)

This dispute concerned the calculation of a retired employee’s benefits under a pension plan governed by the Employee Retirement Income Security Act of 1974 (ERISA).  After the pension-plan administrator refused to recalculate the plaintiff’s pension benefits, the plaintiff filed a declaratory judgment action in Superior Court.  The defendant administrator then moved for and obtained summary judgment after the pension-plan trustees confirmed the administrator’s calculation of the pension benefits due to the plaintiff.  The plaintiff, on appeal, argued that summary judgment was inappropriate because the motion justice resolved a genuine issue of material fact when he determined that the trustees’ interpretation of the pension plan was reasonable.  In denying the plaintiff’s appeal, the Supreme Court held that the defendant was entitled to judgment as a matter of law because both the administrator’s and the trustees’ interpretation of the pension plan was a reasonable one and that it was not arbitrary and capricious.  Moreover, the motion justice employed the correct deferential standard of review because the plan accorded the trustees broad discretionary power to interpret its substantive provisions.  The motion justice did not err in determining that the challenged interpretation of the plan was reasonable. 

Steven L. Henderson v. Angela C. Henderson, Nos. 01-608 & 01-544 (March 11, 2003)

This Court concluded that the motion justice did not err in denying defendant’s motion to dismiss plaintiff’s complaint for a divorce from bed and board based on jurisdictional grounds.  Jurisdiction in Rhode Island is proper over this action because states’ have the power to regulate the status of their citizens as long as the petitioner is a domiciliary of that state at the time the action is filed.  Not only is this authorized by the legislature, but it also comports with the United States Supreme Court precedent holding that such exercise of quasiinrem jurisdiction by the states does not offend litigants’ rights to due process.  Furthermore, the motion justice also did not err in ruling on the status of plaintiff’s and defendant’s children because, as is the case in divorce action, rulings on child custody are permissible by statute and through a state’s inherent power to regulate the status of children living in the state at the time the petition is filed.

State v. James J. Brooks, No. 02-68 (March 10, 2003)

In denying defendant’s appeal from a denial of a motion for a new trial in a nonjury criminal case, the Supreme Court held that the trial justice was not clearly wrong, nor did she overlook or misconceive material evidence in denying the motion.  The defendant was convicted of felony assault and malicious destruction of property.  In his motion for a new trial, he sought to introduce evidence to bolster his claim that an eyewitness who testified at the trial had an unobstructed view of the altercation, instead of the partial view suggested by the evidence.  The defendant in his motion also questioned the credibility of the officer who responded to the victim’s 9-1-1 call, as well as the lack of medical testimony presented at trial regarding the victim’s professed memory loss as a result of the assault.  The trial justice concluded that the evidence defendant sought to present was not "newly discovered" and that the testimony of the officer was credible.  Because a motion for a new trial in a nonjury criminal case is of "limited effectiveness" and because defendant failed to proffer any newly discovered evidence, the trial justice’s assessment of the proffered evidence and his denial of the new-trial motion did not constitute error. 

Charles Austin v. Richard Carden et al, No. 02-11 (March 10, 2003)

The trial justice properly concluded that the statute of limitations was not tolled because the evidence submitted by plaintiff did not indicate that he was of unsound mind at the time his action accrued.  The plaintiff’s suit was clearly barred by the statute of limitations.  The Superior Court’s entry of summary judgment in favor of defendants was affirmed.

John Elliott v. Town of Warren et al, No. 01-479 (March 7, 2003)

Summary judgment in favor of the defendant, town of Warren is affirmed.  The plaintiff, a former Warren police officer, who accepted a disability retirement after sustaining work-related injuries that led to his permanent disability, is not entitled to full salary or medical benefits pursuant to G.L. § 45-19-1.  The town of Warren properly enrolled in the Municipal Employees Retirement Pension system pursuant to the provisions of chapter 21 of title 45 prior to plaintiff’s employment with the town and his benefits are limited to the provisions of that chapter.

State v. Peter Austin Jones, No. 01-474 (March 7, 2003)

While jogging along Allen’s Avenue in Providence, the victim, an investigative reporter for the Providence Journal, was first taunted, then chased, and finally assaulted by a person he passed on the sidewalk.  The police presented the victim with a photographic array, from which he immediately identified the defendant as his attacker.  The victim confirmed this identification later when he picked out the defendant as his attacker from a diverse group of people who were present in a District Court courtroom.  After trial, a jury convicted defendant for felony assault.  The defendant appealed this conviction, arguing that the array of photographs initially presented to the victim was impermissibly suggestive and thus tainted the victim’s identification of him as the assailant.  The Supreme Court of Rhode Island upheld the trial justice’s denial of the defendant’s motion to suppress the identification evidence, denied the appeal, and affirmed the conviction, holding that the photographic array used by the police was not unduly suggestive of the defendant, and that the identification itself possessed independent reliability.

John R. Santurri v. Richard M. DiPietro et al, No. 01-188 (March 7, 2003)

A Superior Court justice exceeded his authority in ordering a forced sale of land to the prevailing party in a claim of adverse possession.  Notwithstanding his concerns for the practical reality that the neighbors’ feud would persist, the Court is not at liberty to craft an unsolicited remedy and order an unwilling party to convey property in contravention of a finding of ownership. 

David Desjarlais v. USSAA Insurance Company, No. 01-490 (March 6, 2003)(Corrected)

The plaintiff appealed from a judgment confirming an arbitration award in favor of defendant, his uninsured and underinsured motorist carrier.  Having received an award from one insurance carrier, plaintiff filed for an additional award from his own carrier.  That claim went to arbitration under the defendant’s policy.  The arbitration panel denied his application from further benefits.  Plaintiff objected confirmation of that award claiming that he had a potential for future disability.  Plaintiff had no evidence to support this and therefore any future disability is hypothetical.  Consequently, the arbitration award was proper under G.L. 1956 § 10-3-12.  The appeal was denied and dismissed.

State v. Matthew Ferrara et al, No. 01-105 (March 6, 2003)

The defendant appealed from the denial of his motion to reduce sentence.  The Court rejected the defendant’s assertion that the trial justice abused his discretion in refusing to reduce the sentence of life imprisonment plus seventy-five consecutive years for kidnapping two people, raping one and throwing her from a moving vehicle.

Rosemarie Zaino v. Frank N. Zaino, No. 00-74 (March 3, 2003)

The Family Court has the authority to re-open a final divorce judgment and property settlement agreement in an independent action based on allegations of fraud by intentional misrepresentation of marital assets and income in the original divorce proceeding.  The judgment awarding damages and attorneys fees to plaintiff was affirmed as a proper recovery of an amount the plaintiff would have received absent defendant’s fraudulent misconduct.  However, a one year, $250 per day discovery sanction was vacated and remanded for a recalculation from December 23, 1997, to February 16, 1998, to more equitably reflect the time in which defendant’s noncompliance was willful. 

Peter Filippi et al v. Marion Filippi et al; Peter Filippi et al v. Citizens Trust Company, in its capacity as Corporate Trustee of the Paul A. Filippi Trust Agreement, Nos. 01-130 and 01-169 (February 18, 2003)

The plaintiffs are the three eldest children of the deceased Paul Filippi and the defendants are his wife (Marion) and his institutional trustee (Citizens).  The plaintiffs brought a breach of contract suit against Marion seeking to enforce the terms of an oral partnership agreement whereby plaintiffs and decedent would share in the proceeds of the sale of a parcel of land.  In a separate breach of contract claim, plaintiffs attempted to enforce an oral promise between decedent and one of plaintiffs in which he allegedly promised to give her the family business (Ballards) if she managed the business.  Finally, plaintiffs filed an undue influence claim against Citizens alleging that Marion wrongfully influenced decedent’s decision to amend his trust in 1992.   After a jury verdict in favor of plaintiffs on the breach of contract claims and the trial justice’s judgment in favor of Citizens on the undue influence claims, both plaintiffs and Marion appealed.  

Marion appealed the trial justice’s denial of her motion for judgment as a matter of law arguing that the trial justice erred in finding that (1) an oral agreement to share in the proceeds of the sale of land was not within the statute of frauds, and (2) the parol evidence rule did not prohibit evidence of the oral agreement.  Marion also asserted that the evidence did not support a finding that decedent entered into a contract with one of the plaintiffs to leave her the business.  Furthermore, she appealed the trial justice’s denial of her motion for a new trial on all the issues except damages unless plaintiffs accepted a remittitur.  The plaintiffs cross-appealed on the issue of remittitur.  Also, plaintiffs appealed the trial justice’s ruling on the undue influence claim contending that he erred in ruling on the claim in equity and contrary to the advisory jury verdict. 

This Court held that the trial justice erred in denying Marion’s motion for judgment as a matter of law because the partnership agreement was unenforceable under the statute of frauds and, additionally, the parol evidence rule should have prohibited evidence of the prior oral agreement.  On the second breach of contract count, this Court concluded that the trial justice erred in denying Marion’s motion for judgment as a matter of law because there was insufficient evidence to support a verdict that the decedent entered into an oral contract with his daughter leaving her the family business.   As a result, the remittitur and new trial issues are moot.  Finally, this Court affirmed the trial justice’s decision to rule on the undue influence claim and his ultimate finding of no undue influence in spite of the advisory jury’s finding to the contrary.     

 

State v. Brian E. Reis, No. 01-173 (February 10, 2003)

The trial justice did not abuse his discretion in admitting evidence of prior drug transactions between the defendant and his co-conspirator.  Additionally, the trial justice did not err by denying the defendant’s motion for judgment of acquittal.

Kendall Hudson et al v. City of Providence et al, No. 01-315 (February 12, 2003)

Summary judgment in favor of the defendant, city of Providence, is affirmed.  The driver injured in an automobile collision sought damages for the defendant’s failure to maintain a stop sign at an intersection. The Supreme Court held that a decision to install a traffic control device is a discretionary act and a governmental function that, in the absence of egregious negligence or a breach of a special duty owed to an identifiable individual, neither circumstance being present herein, is shielded by the public duty doctrine.

State v. Hervey Momplaisir, No. 00-36 (February 12, 2003)

The defendant’s convictions for four felony violations of the Uniformed Controlled Substances Act are affirmed.  Although the hearsay statements of a non-testifying co-defendant were inadmissible and do not qualify as exceptions to the hearsay rule as present sense impressions or excited utterances, their admission into evidence constitutes harmless error.  The trial justice appropriately excluded, pursuant to Rule 403 of the Rhode Island Rules of Evidence, a notation contained in a prison medical report.  Evidence that the defendant falsely identified himself to police and was identified as a result of a separate drug investigation was admissible. 

Kathleen M. Feeney v. Stephen T. Napolitano, in his capacity as Treasurer of the City of Providence et al, No. 01-199 (February 5, 2003)

The defendants appeal from a Superior Court judgment entered after a bench trial in this personal injury case.  The Court concludes that the trial justice erred in awarding damages against the city employee in his individual capacity because plaintiff only sued the employee in his official capacity.  Thus, the damage award was vacated to the extent that it exceeded $100,000, the maximum amount recoverable from the city under G.L. 1956 § 9-31-3.

Town of Coventry Zoning Board of Review v. Omni Development Corporation, No. 02-20 (January 30, 2003)

A decision of the State Housing Appeals Board, issued pursuant to the Rhode Island Low and Moderate Income Housing Act, G.L. § 45-53-1 et. seq. that granted relief to the developer/appellee from local ordinances and subdivision requirements for a development proposal for low and moderate income housing is remanded for appropriate findings of fact; however the zoning board of review lacks the requisite standing to prosecute an appeal to this Court.  The Supreme Court is satisfied that the Act in existence at the time this appeal was determined by the State Housing Appeals Board included subdivision development in addition to multifamily housing projects.

Theta Properties et al v. Ronci Realty Co., Inc., No. 01-359 (January 30, 2003)

The Superior Court entered a default judgment against a dissolved corporation and then denied a motion to vacate same.  On appeal, the Supreme Court reversed and held that General Laws 1956 § 7-1.1-98 was a statute of repose that barred this attempt to sue a dissolved corporation more than two years after its dissolution.  The Court also held that retroactive application of an amendment to § 7-1.1-98.1 (providing for a five-year wind-up period for dissolved corporations) to a dissolved corporation whose wind-up period and ability to sue or be sued had expired two years before the General Assembly enacted the amendment would violate the due-process clause in the Rhode Island Constitution.  Thus, the Superior Court erred by entering the default judgment and by refusing to vacate same.  As a result, the Court vacated the judgment against the dissolved corporation as void.

Lawrence P. Tavares et al v. Horace P. Beck, No. 01-541 (January 29, 2003)

Reversing a Superior Court trial justice’s decision that plaintiffs failed to establish the elements of adverse possession, the Supreme Court vacated the judgment and remanded for further proceedings and findings because the trial justice misconstrued the claim-of-right doctrine, misapplied the open and notorious elements of an adverse-possession claim, improperly considered the record title holder’s out-of-state residency when evaluating the quantum and intensity of the uses in question, and erroneously found that a predecessor’s period of adverse possession could not be tacked on to the plaintiffs’ period because the predecessor’s attempts to bootstrap himself into ownership of the property evidenced his unclean hands.

Terence M. Fracassa v. John F. Doris, Jr., et al, No. 01-158 (January 29, 2003)

In this appeal from the denial of specific performance of a real estate contract, the Court remanded the case for additional findings of fact concerning whether the parties orally agreed to extend the time for performance or whether the contract expired.  The Statute of Frauds does not require a written amendment to extend the time for performance and the parties may enter into an oral agreement to extend the time for performance.  Further, a provision declaring that time is of the essence renders the time for performance a material contract term; however, this provision can also be waived either expressly or impliedly by the parties.

State v. Wayne Wright, No. 00-8 (January 28, 2003)

In rejecting the defendant’s appeal from a felony-murder conviction, the Supreme Court held that certain statements by the defendant’s mother during telephone calls on the date of the murder qualified for admission into evidence under either the present-sense-impression exception to the hearsay rule or as excited utterances.  The trial justice did not abuse his discretion in sustaining the state’s objection to defendant’s attempt to cross-examine a witness about whether a videotape showed that certain other individuals were present in the lobby of the victim’s apartment building during the period when she was murdered.

In the Matter of William G. Coningford, No. 02-692 (January 27, 2003)

The Supreme Court Disciplinary Board recommended that respondent be disciplined for violating Rules 1.15(a), 1.15(b) and 8.4(c) of the Rules of Professional Conduct by converting his clients’ funds and commingling them with his own and failing to distribute funds that were in his possession.  In order to adequately protect the public and maintain the integrity of the profession, the respondent is disbarred from the practice of law.  

Zbigniew Maciszewski v. Thomas J. Flatley d/b/a The Flately Company, No. 01-59 (January 22, 2003)

The plaintiff appeals from a summary judgment that terminated his action to collect punitive damages and interest from defendant for failing to pay a settlement.  The defendant, however, timely tendered payment of the settlement amount and plaintiff was not entitled to punitive damages or interest.  Summary judgment was properly entered in defendant’s favor.

 

Manuel Thomas v. Rhode Island Insurers' Insolvency Fund, No. 01-139 (January 22, 2003)

The Rhode Island Insurers’ Insolvency Fund petitioned for certiorari from the Workers’ Compensation Appellate Division’s decree reversing the Workers’ Compensation trial court’s decision that refused to grant Manuel Thomas loss of use and disfigurement benefits under G.L. 1956 § 28-33-19.  We affirmed the Appellate Division because respondent had not exhausted his statutory benefits under § 28-33-19.

In re Estate of Anna Cantore, No. 01-568 (January 22, 2003)

We hold that the trial justice did not abuse his discretion in awarding attorney’s fees when the amount is adjusted to reflect the wrongdoing of the parties connected with the administration of their mother’s estate.  Furthermore, prejudgment interest is inappropriate in an action calling for accounting and reimbursement. 

State v. Joseph D. Keohane, Jr., No. 99-569 (January 17, 2003)

The Superior Court was without authority to accept a conditional plea of guilty in order for defendant to challenge the denial of a motion to suppress evidence seized from his automobile.  Unlike the federal system, conditional pleas are not available in this jurisdiction.  Further, the trial justice properly denied defendant’s motion to suppress evidence seized during a vehicle stop based upon information from an anonymous tip.

Marilyn Grieco, in her capacity as mother and next friend for her minor son, John Doe, alias v. Stephen T. Napolitano, in his capacity as Treasurer of the City of Providence, No. 00-299 (January 17, 2003)

The Superior Court properly awarded minor plaintiff $30,000 compensatory damages for emotional injuries caused by a municipal agency’s negligent violation of General Laws 1956 § 9-1-44, which creates civil liability for the release of the name of a minor victimized by a crime.  Plaintiff demonstrated sufficient physical symptomology to substantiate claim of emotional harm.    

State v. Anthony DeCiantis, No. 01-149 (January 16, 2003)

A motion under Rule 35 of the Superior Court Rules of Criminal Procedure to correct a sentence imposed without affording the defendant his constitutional right of allocution was untimely because it was not filed within 120 days after receipt by the Superior Court of the mandate affirming the defendant’s 1984 conviction for murder.  Because the court did not afford defendant his right of allocution before imposing the sentence, the sentence was illegally imposed.  Nevertheless, it was not an illegal sentence because the court was authorized to impose a consecutive life sentence on this defendant, who was already serving concurrent life terms for previous murders.  Thus, the Superior Court erred when it ordered the defendant to be resentenced.

Lois Bourque v. Stop & Shop Companies, No. 01-259 (January 16, 2003)

In this action for false arrest and extortion, the Supreme Court rejected an appeal by a store from a Superior Court damages judgment in favor of an alleged shoplifter.  The Court held that the language used in the store’s waiver form exceeded what General Laws 1956 § 11-41-21(c)(1) ("shoplifting enforcement") allowed.  The trial justice did not err in denying the store’s motion for judgment as a matter of law because the trial justice correctly concluded that the jury could find that the store had coerced the customer into signing the waiver by refusing to let her leave until she did so.  The trial justice’s denial of the store’s motion for a new trial also did not constitute reversible error because there was no indication that the trial justice overlooked or misconceived any material or relevant evidence, nor that he was clearly wrong.  The trial justice’s instructions on the shopkeeper’s privilege were not erroneous because the store did not preserve this alleged error via a specific objection.  Finally, the trial justice did not abuse his discretion when he rejected the store’s attempts to exclude a licensed social worker’s testimony regarding plaintiff’s mental condition when he instructed the jury on punitive damages. 

State v. Walter Waite, No. 01-35 (January 15, 2003)

The defendant appealed a Superior Court justice’s finding that he violated the terms of his probation based on charges of first-degree robbery and assault with a dangerous weapon, which the state later dropped.  The Court held that the hearing justice did not err in finding that he was reasonably satisfied that defendant violated the conditions of his probation to keep the peace and remain on good behavior.  Furthermore, the Court concluded that the hearing justice did not act arbitrarily in finding all of the witnesses credible, even though some of their stories were conflicting, because only one of the witnesses testified to the facts relevant to whether the defendant violated the conditions of his probation.   

Clifford R. Montiero v. Silver Lake I, L.P. et al, No. 01-514 (Janaury 15, 2003)

The plaintiff appeals from a summary judgment entered in favor of the defendants.  The plaintiff brought suit against defendants after he was attacked on their premises by a pit bull terrier owned by a third party.  Summary judgment was properly entered because there was insufficient evidence of defendants’ knowledge of the dog’s presence on the premises.  Additionally, plaintiff failed to provide any evidence of defendants’ knowledge of the pit bull’s propensity for viciousness. 

William M. Hefner v. James Distel, alias, No. 01-503 (January 14, 2003)

The plaintiff motorcyclist was involved in an automobile collision at an intersection after he passed on the left two vehicles that were stopped in the right lane of a city street.  The Supreme Court held that a Superior Court trial justice failed to engage in the proper analysis of the evidence and erred when he granted the plaintiff’s motion for a new trial, or, in the alternative, an additur in favor of the plaintiff.  Applying the appellate rule, the Supreme Court decided that sufficient evidence existed for the jury to decide that the defendant motorist having taken reasonable precautions before entering the intersection did not operate his vehicle in a negligent manner, whereas the plaintiff motorcyclist failed to do so.  Consequently, the Court vacated the order granting the plaintiff a new trial or, in the alternative, an additur, and remanded the case for entry of judgment in favor of the defendant.

Elizabeth A. Andreozzi v. David A. Andreozzi, No. 01-185 (January 14, 2003)

The defendant appealed the Family Court magistrate’s decision granting sole custody of the children to plaintiff, calculating child support based on potential income in addition to defendant’s social security benefits, and distributing 75 percent of the marital assets to plaintiff.   He also appealed the magistrate’s denial of his motion for new trial.  The magistrate was not clearly wrong, did not misconceive or overlook material evidence and did not abuse his discretion in his determinations; therefore, this Court affirms his decision.

Bradford W. Haworth et al v. John Lannon et al Philip Barresi et al v. John Lannon et al, No. 01-515 (January 14, 2003)

The plaintiffs’ appeal of the entry of summary judgment in favor of defendant town of Warren was denied and dismissed.  The public duty doctrine shielded the town from liability for its building inspector’s alleged negligence because plaintiffs presented no genuine issue of material fact on whether the special duty or egregious conduct exceptions to the public duty doctrine applied in this case.

Ridgewood Homeowners Association et al v. David Mignacca et al
Ridgewood Homeowners Association et al v. Zoning Board of Review of Cranston et al
, No. 01-289 (January 14, 2003)

A restrictive covenant in their deed bars Kathy and David Mignacca from maintaining a miniature horse on their property in Ridgewood Estates.  The plaintiffs did not waive their right to enforce the covenant.  In addition, a local ordinance that the trial justice relied on was trumped by a conflicting, more recent local zoning ordinance enacted pursuant to a state law of general applicability. But controlling in this case is the restrictive covenant that unambiguously bans the horse and its shed.  Therefore, the Mignaccas are barred from maintaining the horse on their property even if such a use were allowed under the zoning code.

State v. Robert Dyer, No. 00-466 (January 14, 2003)  (Corrected)

The defendant’s judgment of conviction on one count of burglary and two counts of assault with a dangerous weapon with intent to kill was affirmed. The admission of the complainant’s testimony on the reasons her daughter did not testify was not error, and the trial justice properly denied the defendant’s motions for a new trial and for a judgment of acquittal.

Patrick A. Fayle v. Scott C. Traudt, No. 01-292 (January 13, 2003)

The Supreme Court held that the prose defendant in this case failed to invoke its jurisdiction properly when he appealed from various interlocutory orders of the Superior Court.  Consequently, the Court was unable to reach the merits of the alleged legal errors that the defendant sought to challenge.  The challenged orders included denials of motions for summary judgment, for discovery sanctions, and to dismiss the complaint.  The defendant also sought to appeal from the Superior Court’s orders holding in abeyance his motions (1) to hold a jury trial, (2) to amend his counterclaim to include a claim for punitive damages, and (3) to vacate previous discovery rulings.  Consequently, the Court remanded the case to the Superior Court for further proceedings. 

Rhode Island Insurers' Insolvency Fund v. Leviton Manufacturing Co., Inc., No. 01-422 (January 7, 2003)

Because the Rhode Island Insurers’ Insolvency Fund is not entitled to any prejudgment interest under the Rhode Island Insurers’ Insolvency Act, it cannot recover prejudgment interest on a reimbursement award for the period during which that judgment was appealed.  Postjudgment interest does not begin to accrue until the date of final judgment, which is the date of this Court’s partial affirmation of the judgment.    

DeVere V. Carney, Jr., et al v. Kardinal Land, Inc. et al, No. 01-495 (January 7, 2003)

Because the statute of limitations on plaintiff’s counterclaim for fraud had not been tolled, this Court affirmed the Superior Court’s entry of summary judgment in favor of DeVere V. Carney, Jr.  Kathleen Page had been aware of Carney’s allegedly fraudulent actions since 1984 yet failed to exercise the reasonable diligence which would have permitted her to confirm the suspected fraud within the ten-year period for bringing civil actions pursuant to R.I.G.L. 1956 § 9-1-13(a).

In re Faith H., No. 01-524 (January 7, 2003)

There was sufficient evidence in the record to support the Family Court’s decree terminating the father’s parental rights, given that the father’s incarceration was "of such a duration that renders it improbable for the parent to care for the child for an extended period of time," as required by G.L. 1956 § 15-7-7 (a)(2)(i). The father was incarcerated before the child’s birth to a sentence of ten years, with 33 months to serve and 87 months suspended with probation, and has never had custody of the child, who requires special care and is bonded with her maternal grandmother, who has cared for the child since her birth.    

State v. Vincent A. Ceraso, No. 01-101 (December 27, 2002)

Two Newport police officers who responded to an emergency accident on the Jamestown side of the Newport Bridge with the agreement and approval of a Jamestown Sergeant who was on the scene were held to have jurisdiction to stop a driver who went past a roadblock at a high rate of speed and appeared to be operating under the influence of alcohol.  After submitting the driver to field sobriety tests, a Newport police lieutenant on the scene turned him over to the state police who charged him with driving under the influence and brought him to a state police barracks for a breathalyzer test.  His conviction of this charge in the Superior Court was affirmed, and the Newport police officers were held to have jurisdiction pursuant to R.I.G.L. 45-42-1 which authorizes emergency cooperation between officers of different municipalities.

P.J.C. Realty, Inc., d/b/a Brooks Pharmacy v. John J. Barry III et al, No. 01-320 (December 27, 2002)

This is an appeal by the city council from the issuance of a writ of mandamus ordering the city to amend its zoning ordinances in accordance with an application filed by Brooks Pharmacy.  Held:  Mandamus could not issue to require the city to enact an amendment to its zoning ordinance.  The declaratory judgment which set forth that the city had an obligation to conform its zoning ordinances to its comprehensive plan was sustained.  The trial court’s refusal to review the inaction of the city council pursuant to R.I.G.L. 45-24-71 was sustained and Brook Pharmacy’s cross appeal was denied.

Marshall Contractors d/b/a Algonquin Builders v. Bennington Iron Works and Ajax Construction Company; Daniel A. Ferguson et al v. Marshall Contractors d/b/a Algonquin Builders and Bennington Iron Works, Nos. 01-478 and 01-496 (December 27, 2002)

The granting of a motion for judgment as a matter of law in favor of Bennington was held to be erroneous.  The judgment in favor of Bennington was vacated, and the case was remanded to the Superior Court for trial on the merits.

Viriato Rose et al v. Jane G. Shaw et al, No. 01-437 (December 27, 2002)

The dismissal of this action in the Superior Court on the ground that the Family Court would be the more appropriate tribunal for trial of this action was reversed.  The case was remanded to the Superior Court for reinstatement and trial.  This Court held that the Family Court had no jurisdiction of this breach of contract action between these plaintiffs and defendants, Jane G. Shaw and John K. Shaw.

American Commerce Insurance Company v. Sebastian M. Porto et al, No. 01-80 (December 26, 2002)

Because the relevant insurance policy excluded coverage for bodily injury claims arising out of actual, alleged, or threatened sexual molestation, an insurer had no duty to defend a Boy Scout troop leader in a negligent-supervision lawsuit brought by a Boy Scout who was the victim of sexual molestation by another troop leader.

State v. Destie Ventre, No. 00-497 (December 23, 2002)

The judgments of conviction of murder in the second degree and assault with a dangerous weapon were vacated.  The trial court’s refusal to allow Leonardo’s prior commission of the act of murder (while a juvenile) to be considered as evidence of propensity for violence in aid of the claim of self defense was held to be prejudicial error.  The jury instructions on the issue of self defense were held to be erroneous.  The failure to instruct the jury on the lesser offense of voluntary manslaughter was held to be prejudicial error.  The case was remanded to the Superior Court for a new trial.

Thomas P. Gill, et al v. Thomas R. Wagner, et al, No. 01-447 (December 23, 2002)

A motion justice erred in removing a lis pendens from land-evidence records when the buyers sought specific performance of an agreement to sell real estate, and the seller allegedly agreed to extend the closing date while he attempted to cure the title problem.

Susan J. Ferreira v. Kenneth A. Mello, Jr., et al, No. 01-154 (December 20, 2002)

After the plaintiff’s claims in the underlying automobile collision were settled by the defendant insurance companies, the trial justice rendered a declaratory judgment declaring that the insurer of the vehicle’s owner was responsible for the statutory minimum mandated for compulsory insurance and the remaining amount should be apportioned between the carriers on a pro-rata basis.  The Supreme Court reversed and held that when the applicable provisions of multiple insurance policies are identical and provide that the owner’s insurance carrier is primarily liable and the driver’s insurance is excess, pro-rata apportionment of liability is not required and the state’s compulsory insurance scheme does not mandate a different result. 

State v. Michael B. Chalk, No. 02-6 (December 20, 2002)

The late disclosure of cumulative impeaching evidence did not violate the defendant’s right to due process because the state did not act deliberately, and there was no reasonable probability that the jury verdict would have been different had the evidence been produced  earlier.  The trial justice complied with Rule 404(b) of the Rhode Island Rules of Evidence in admitting testimony on uncharged conduct that demonstrated the defendant’s lewd disposition towards the complainant and gave an adequate and appropriate limiting instruction.

Budget Termite & Pest Control, Inc. v. Donald Bousquet, No. 01-271 (December 19, 2002)

A cartoon published in the comics section of a Sunday newspaper was not defamatory because ordinary readers would not understand the cartoon to contain false factual representations about any particular company or its employees, including the plaintiff pest exterminator whose name was similar to the name used in the cartoon.

State ex rel. Town of Richmond v. Leo R. Roode, III et al, No. 01-117 (December 19, 2002)

The Supreme Court held that even though enabling legislation authorized a municipality to enact a licensing ordinance for go-kart and drag-racing tracks, the municipality could not apply that ordinance to the owner of a tracked parcel of real estate used for motorized dirt-biking.

Kathleen Geloso et al v. James Kenney et al, No. 01-391 (December 19, 2002)

The plaintiffs appealed the trial justice’s grant of defendants’ motion for judgment as a matter of law in a slip and fall case where plaintiffs sued their sister and brother-in-law for failing to provide a handrail on the stairs.  The trial justice granted the motion on the grounds that plaintiffs failed to show proximate cause.   Because there was sufficient evidence on proximate cause for reasonable minds to differ, the jury could have considered the issue of proximate cause.  However, plaintiffs did fail to prove that defendants owed a legal duty to provide a handrail; therefore we affirmed the decision of the trial justice.  

Pier House Inn, Inc. v. 421 Corporation, Inc., No. 01-33 (December 18, 2002)

In the absence of any authority or agreement to grant the award, the punitive damages portion of an arbitration award was properly vacated.  A Superior Court justice may correct or modify an arbitration award under § 10-3-14 by remanding that award to the arbitrator for clarification.

State v. Keith Burke, No. 00-229 (December 17, 2002)

The defendant was convicted of witness intimidation and sentenced to an additional fifteen-year enhanced penalty as an habitual offender.  There was no abuse of discretion in denying defense counsel’s motion to withdraw on the eve of trial, where defense counsel was ready, willing and able to proceed and defendant showed no credible evidence of a conflict of interest.  The trial justice did not err in amending the criminal information on the eve of trial, where the information contained a typographical error and there was no evidence that defendant suffered any resulting prejudice.  The defendant suffered no prejudice when the habitual offender notice was amended to substitute a different felony predicate offense.  Suspended sentences of imprisonment constitute predicate offenses for purposes of the habitual offender statute; consequently, a defendant does not need to have served time in prison on such sentences before the statute becomes applicable.

Astro-Med, Inc. v. R. Moroz, Ltd., No. 01-165 (December 17, 2002)

The defendant, Moroz, appealed from a hearing justice’s order to enter final judgment pursuant to Rule 54(b) in favor of plaintiff, Astro-Med.  According to Moroz, the hearing justice erred in ordering the entry of final judgment because a transactional relationship existed between its counterclaims and Astro-Med’s claim upon which final judgment was entered.  Moroz further argued that the hearing justice erred in ordering the entry of final judgment because its counterclaims against Astro-Med remained intact and there was a possibility that Moroz would be entitled to a setoff.  While entry of final judgment on fewer than all the claims presented in a case is strongly disfavored, the hearing justice did not abuse her discretion in so ordering.    

George Saber v. Dan Angelone Chevrolet, Inc., No. 00-361 (December 17, 2002)

The defendant, Dan Angelone Chevrolet, Inc. (defendant) appeals from a Superior Court judgment in favor of plaintiff, George Saber (plaintiff).  After a trial, the trial justice found that a car sold to plaintiff by defendant was impounded by the police on the mistaken belief that it was stolen.  The trial justice ruled that the impoundment constituted a breach of warranty of title and granted plaintiff’s motion for judgment as a matter of law.  The defendant challenges certain evidentiary rulings and jury instructions issued by the trial justice.  The defendant also challenges the trial justice’s grant of plaintiff’s motion to judgment as a matter of law and denial of its motion for a new trial.  The trial justice was correct in all of his rulings and the judgment awarding damages equal to the purchase price of the car is affirmed. 

Keri Ellen Flynn v. Nicholas Al-Amir, No. 00-494 (December 16, 2002)

Ten years after the Family Court defaulted the defendant for failing to answer a divorce complaint and found that he and the plaintiff had shared a common-law marriage, the defendant moved to vacate the final judgment of divorce for improper service of process.  The Court held, that service of process by registered mail was proper when the husband’s mother accepted the summons and complaint for him at an out-of-state address where the wife believed the husband was then residing.  The Family Court did not err in excluding defendant’s affidavits in connection with denying his motion to vacate the judgment because the affiants were unavailable for cross-examination.

Shari Ann Stephenson v. Lawrence P. Stephenson, No. 99-404 (December 12, 2002)  (Corrected)

In this divorce case, the husband placed his wife’s name on various personal accounts that had existed before the marriage.  During the course of the marriage, the only activity on these joint accounts was the posting of interest by the bank.  It was error for the trial justice to find that the joint accounts had transmuted into marital property by operation of law in light of the undisputed findings that the husband did not have the requisite intent to create in his wife a present possessory interest in the accounts, and that he had added her name merely for convenience and estate planning purposes.  Given that the marital estate must be reduced by the value of the joint accounts, the monetary award to the wife must be reviewed for its appropriateness in view of the substantial reduction of the marital estate.

Charles Samos et al v. 43 East Realty Corporation, No. 00-437 (December 12, 2002)

In this dispute over the interpretation of a lease agreement and its accompanying amendment, the trial justice did not err in finding that the unambiguous notice provisions in the lease amendment agreement superseded the notice provisions in the original lease agreement.

State v. Kenneth S. Rice, No. 01-155 (December 12, 2002)

Criminal statutes must be construed strictly.  Accordingly, pursuant to the habitual offender statute, a trial justice may not order a defendant to serve, without parole, a term of imprisonment that is longer than the habitual offender portion of his or her sentence.  

In re Joseph A. Cozzolino, No. 02-620 (December 11, 2002)

In this disciplinary decision, the Court adopts the recommendation of the Supreme Court Disciplinary Board (board) that respondent, Joseph A. Cozzolino (respondent) be sanctioned for misconduct in the course of the practice of law.  The Court, however, rejects the board’s specific disciplinary recommendations, and instead, disbars the respondent from the practice of law for his repeated ethical violations.

In re Request for Advisory Opinion from the Governor (Warwick Station Project), No. 02-615 (December 10, 2002)  (Corrected)

The Court declined to issue an advisory opinion to the Governor on two questions relating to the Warwick Station Project.  The Court concluded that in order to issue its opinion, it would have to engage in fact-finding, which is prohibited in the course of rendering an advisory opinion.  Therefore, the Court declined to issue its opinion.  Associate Justice Flanders wrote a separate opinion, indicating that, in his opinion, the Court was required to render an advisory opinion by the constitution.

Katherine M. Kelley et al v. Donald Jepson, Administrator of the Estate of Brandt H. Jepson, No. 01-321 (December 6, 2002)

When a probate judge issues a written, dated, signed decision that clearly settles the respective rights and claims of the contestants challenging the probate of a will, and the document terminates litigation of the contested will in the probate court, the judge’s decision is a decree that triggers the statutory limitations period and the requirements for filing an appeal pursuant to G.L. 1956 § 33‑23-1. If a party fails to comply with the statutory requirements, the appeal may be heard only by petition to the Superior Court under G.L. 1956 § 9-21-6.  

Edward J. Plunkett v. State of Rhode Island, No. 01-303 (December 5, 2002)

Specific legislation trumps more general legislation whenever the two conflict. The executive director of the State Judicial Information System (SJIS) was not entitled to "full status" or tenure under G.L 1956 § 36-4-59 (a general statute) when he reached twenty years of state service, because G.L. 1956 § 8-15-4 (a specific statute) provides that assistants to the court administrator, including the SJIS executive director, serve at the pleasure of the Chief Justice of the Supreme Court. 

Michael Labonte v. National Grange Mutual Insurance Company, No. 01-339 (December 5, 2002)

An insurer may bring a declaratory judgment action to clarify coverage. The insurer need not provide independent counsel to its insured each time the insurer initiates a coverage investigation.  The possibility that a conflict between an insurer and its insured might arise at some later point in an investigation does not relieve an insured of the duty to cooperate with a coverage investigation.

Michael Regan v. Nissan North America, Inc. et al, No. 01-135 (December 5, 2002)

General Laws 1956 § 31-33-6 shielded defendant from liability for the negligence of her son while he drove her leased car with her permission, because her son had filed a statement of financial responsibility. The Court rejected negligent entrustment as a basis for defendant’s liability. 

State v. William Pona, No. 00-487 (December 4, 2002)

The defendant, William Pona appealed his conviction for resisting arrest, arguing that the trial justice erred in not sanctioning the state by excluding certain evidence that defendant claimed did not meet the timing and specificity requirements of Superior Court Rule of Criminal Procedure 16. We held that the trial justice was well within his authority to offer a continuance as a sanction and note that it was defendant, rather than the state, who violated Rule 16.

State v. Jorge DePina et al, No. 00-461 (December 3, 2002)

The defendants appealed their convictions of first-degree murder and conspiracy to murder, alleging numerous errors in the trial justice’s limitation of their cross-examinations and opening statement, in the omission of jury instructions on lesser-included offenses, and in the denial of their motions for a new trial. DePina and Monteiro alleged additional errors in the denial of their motions for severance of their trials from that of Teixeira. We affirm the convictions of DePina and Monteiro and the conspiracy conviction of Teixeira. We vacate Teixeira’s conviction of murder. The Court is evenly divided on whether his case should be remanded for a new trial on the murder count.

State v. Loretta A. Gough, No. 01-362 (December 3, 2002)  (Corrected)

It was not an abuse of discretion to allow a police officer with considerable knowledge and experience to testify that circular marks on the victim’s wrists were caused by the misuse of handcuffs.  Such testimony did not constitute vouching where jury was assisted with enough additional facts to assess the officer’s conclusions.  The trial justice did not overlook or misconceive material evidence in denying the defendant’s motion for a new trial.

R.C. Associates v. Centex General Contractors, Inc., No. 01-317 (November 29, 2002)

The defendant corporation failed to answer a breach of contract complaint until over five and one-half months after the filing of the complaint and over three and one-half months after entry of a default judgment.  The denial of its motion to vacate the default judgment was not an abuse of discretion where the defendant corporation provided no showing of good cause to justify granting the motion

State v. Edwin B. Edward III, No. 01-389 (November 25, 2002)

The conviction of domestic murder in the first degree and a sentence of life imprisonment without parole were affirmed by the Court. The defendant’s contentions regarding the insufficiency of the indictment and other issues raised were rejected.

State v. Paul Hurteau, No. 01-183 (November 25, 2002)

The defendant appealed his conviction for resisting arrest, alleging that the trial justice erred by not instructing the jury on his right resist an arrest effectuated with excessive force. This Court affirmed the trial justice because there was no evidence at trial that the police used excessive force.

In re Jason L. et al, No. 01-166 (November 22, 2002)

Respondent-mother appealed from a Family Court decree terminating her parental rights to six of her children under G.L. 1956 § 15-7-7(a)(3).  Respondent alleged that the Department of Children, Youth and Families’ (DCYF) efforts to reunify her family were inadequate because she suffered from Battered Women’s Syndrome (BWS).  Respondent did not raise the issue of BWS at trial.  Therefore, this Court will not consider its effect on DCYF’s obligation to respondent.  The Family Court justice did not abuse his discretion in finding that DCYF satisfied all of its statutory obligations, including finding that the mother was unfit, and this Court affirmed the decree terminating respondent’s parental rights under § 15-7-7(a)(3).   

Catherine E. Graziano and John P. Hawkins v. Rhode Island Lottery Commission et al, No. 97-144 (November 18, 2002)

Affirms the judgment of the Superior Court in favor of the lottery commission on the grounds of resadjudicata and reverses the Superior Court’s finding that the lottery commission violated the Open Meetings Act.

State v. John Sivo, No. 01-178 (November 15, 2002)

The Supreme Court affirmed a Superior Court judgment of conviction for perjury in violation of G.L. § 11-33-1.  The Court held that one material false statement that has been given under oath with knowledge that it was false is sufficient for a violation of § 11-33-1. Although the crime of perjury may be proven by evidence of two or more material, irreconcilably contradictory declarations, pursuant to § 11-33-1(c), it is not the only means of establishing the falsity of the statement in question.     

John J. Cullen v. Dennis Auclair, No. 01-588 (November 14, 2002)

Plaintiff appealed from motion justice’s grant of summary judgment, based on his defamation and false light claims against defendant.  This Court affirmed the judgment because defendant’s statements were opinions based upon disclosed non-defamatory facts.  Furthermore, this Court extended the protections afforded statements of opinions to false light claims based on such opinions.

Representative David N. Cicilline et al v. Lincoln C. Almond, in his capacity as Governor of the State of Rhode Island  Aram G. Garabedian, in his official capacity as a State Senator and Chairman of the Senate Subcommittee on Human Services and Transportation et al v. The Governor of the State of Rhode Island, Lincoln C. Almond in his official capacity et al, No. 01-631 (November 13, 2002)

Challenge by individual legislators and a beneficiary of a government-funded-housing program to the governor’s alleged decision to "freeze" appropriated funds for this program was moot after the General Assembly replaced the original appropriation with an alternative financing mechanism.

State v. Richard Dale, No. 00-484 (November 12, 2002)  (Corrected)

Defendant’s appeal challenging the finding of two separate probation violations is denied and dismissed.  The Supreme Court rejected defendants arguments that a second violation hearing, based upon felony offenses that arose after defendant had admitted to a previous probation violation and was awaiting sentencing, was barred by the Double Jeopardy Clause.   Further, the fact the that state dismissed the drug charge that formed the basis of the first violation does not invalidate the finding of probation violation.

Joyce Labossiere v. Jason Berstein, M.D., No. 01-210 (November 12, 2002)

The Superior Court did not err in denying plaintiff’s motion to vacate default judgment pursuant to Rule 60(b)(1), (4) or (6).  Failure by plaintiff’s newly-retained, substitute counsel to enter an appearance in the case during the course of pretrial discovery was not excusable neglect, and defendant was justified in directing correspondence strictly to counsel of record.     

Leno Ferreira et al v. Integon National Insurance Company, No. 2001-254 (November 13, 2002)

General Laws 1956 § 27-7-2.1 requires that insurers obtain a written rejection of uninsured motorist coverage from an insured only at the time an automobile liability policy is first issued, even if, as here, additional named insureds are subsequently added to the policy.

John Doe v. John Burkland, No. 01-95 (November 12, 2002)

Two cohabitating men were not barred as a matter of law from entering into a contract to share equally with each other any property acquired individually during their cohabitation, even if they were involved in a homosexual relationship at that time.  One party waived his ability to use a pseudonym by filing court documents that used his real name for the first nine months of the litigation.

State v. David Cluley, No. 01-569 (November 12, 2002)

The District Court erred in suppressing breath-test results in prosecution for driving under the influence of alcohol.  Although previous test results for the breath-testing machine showed that it slightly underreported the blood-alcohol content of the tested solutions, the machine was still functioning within the manufacturer’s specifications.  Thus, the previous test results did not invalidate the test results on the date in question, which showed that the defendant’s blood-alcohol content exceeded the legal limit while he was operating a motor vehicle.

School Committee of the Town of North Kingstown v. John Crouch et al, No. 01-213 (November 8, 2002)

The Superior Court properly enjoined a tenured teacher and his union from arbitrating the teacher’s for-cause dismissal because the collective-bargaining agreement did not clearly provide for arbitration of this type of dismissal and the teacher had elected to pursue the available statutory remedy for challenging same.

State v. Patrick Kilburn, No. 99-321 (November 8, 2002)

In this appeal from the denial of defendant’s motion to reduce sentence, the trial justice did not err in finding that defendant did not cooperate with the authorities. The trial justice established the rationale for defendant’s long sentence and distinguished it most persuasively from the sentence given to his co-conspirator. By not challenging the habitual offender portion of his sentence below, and by not providing a statistical summary to the trial justice in order to attempt to establish that his sentence was excessive when compared with other habitual offenders, defendant waived these issues on appeal. It is clearly beyond question that a trial error may not be raised to support a motion to reduce sentence under Rule 35.

Anthony Ducally v. State of Rhode Island, No. 01-442 (November 8, 2002)

The trial justice erred in vacating defendant’s plea agreements. Deportation was a collateral consequence of his pleas and there was no duty to advise defendant of its possibility The failure to give such advice did not constitute ineffective assistance of counsel. The state’s petition for certiorari is granted and the order vacating the pleas is quashed.

Vincent DiBattista et al v. State of Rhode Island et al, No. 01-100 (November 8, 2002)

Res judicata prevented  two former foster-care parents from relitigating the revocation of their license to serve in this capacity.  The failure of the Family Court’s dismissal decree to include a heading labeling it as a "Judgment" did not prevent the decree from constituting a final, reviewable order.  An alleged statement by a government official that after revoking their license, the Department of Children, Youth and Families removed foster-care children from plaintiffs’ care because there was a substantial risk of imminent harm was not defamatory.

Bradford Dyeing Association, Inc. v. J. Stog Tec GMBH, No. 01-257 (November 7, 2002)

Post judgment interest begins to accrue on an arbitration award that has been appealed on the date of entry of a final judgment. This occurs when all appeals have concluded, either on the date of the entry of an unappealed judgment or on the date of this Court’s affirmation of a judgment or dismissal of an appeal, whichever event first occurs. Here, the motion justice correctly ruled that postjudgment interest refers to interest accruing after final judgment has been entered and that an arbitration award on appeal was not equivalent to an entry of judgment for the purpose of assessing postjudgment statutory interest.

Carlton J. Bleau v. Ashbel T. Wall et al, No. 01-612 (November 4, 2002)

The state appealed a Superior Court hearing justice’s order granting defendant’s application for post-conviction relief.  The hearing justice granted post-conviction relief based on newly discovered evidence without holding an evidentiary hearing.  This Court sustained the state’s appeal, reversed the order of the hearing justice, and dismissed the defendant’s application because the newly discovered evidence was merely cumulative, impeaching and immaterial.  Furthermore, this Court concluded that in this type of application, a conviction cannot be vacated without holding a full evidentiary hearing.  

James M. Munroe v. Cheaters Holding Corp. et al, No. 00-415 (November 4, 2002)

Sole owner of consultation business, as well as the consultaion business itself, are not liable to plaintiff for injuries sustained as a result of the alleged negligence of security personnel at exotic dance club where plaintiff failed to produce any evidence that either was involved in, much less caused, the negligent act. Consequently, the grant of summary judgment in favor of these defendants was appropriate.

Narragansett Bay Commission General Rate Filing, No. 01-518 (November 1, 2002)

The Narragansett Bay Commission (NBC) appealed from a decision of the Public Utilities Commission (commission) ordering it to retain an independent auditor to oversee the combined sewer overflow project.  Because the commission properly exercised its statutory authority in making its order and since the independent auditor cannot interfere with managerial functions, this Court affirmed the decision of the commission.  Furthermore, there was no evidence that the commission order requiring the NBC to finance the position was unreasonable.

Sheldon Whitehouse, in his capacity as Attorney General for the State of Rhode Island v. Matthew Moran, individually and in his capacity as a member of the Town of Tiverton Board of Canvassers, No. 99-343 (October 29, 2002)

The Attorney General has jurisdiction to file a petition in equity in the nature of quo warranto.  Section 17-8-2, of the Rhode Island General Laws applies specifically to the office of a member of a board of canvassers, while G.L. 1956 § 17-1-5.1 is a general statute applying to a variety of elective offices.  If these statutes cannot be construed harmoniously, the special statute will prevail.  Pursuant to the provisions of G.L. 1956 § 17-8-2, the respondent may not serve as a member of the Board of Canvassers of the Town of Tiverton because the respondent has been and is now employed as a public school teacher in the Town of New Shoreham and also is a part-time employee of the  Department of Environmental Management of the State of Rhode Island.  

State v. Mark Koehler, No. 00-471 (October 28, 2002)

The defendant was charged by grand jury indictment with two counts of assault with a dangerous weapon, arising from a dispute over a security deposit made toward the lease of an apartment owned by the plaintiff.  The defendant was found guilty of the lesser-included offense of simple assault and battery.  The denial of defendant’s pretrial motion to dismiss the indictment based upon insufficiency of the evidence was affirmed.  Further, the trial justice denied defense counsel’s motion to pass the case due to comments made during the prosecution’s closing argument. The Supreme Court held that the defendant clearly opened the door to the prosecutor’s argument by commenting on a witness’s absence during the trial. The defendant’s appeal was denied and dismissed and the Superior Court’s judgment of conviction was affirmed. 

Ernest G. Bromaghim v. William Furney et al, No. 01-192 (October 28, 2002)

In this premises liability case, the Rule 50 judgment as a matter of law in favor of the defendant was affirmed; the plaintiff failed to prove that the defendants assumed control over the premises while the construction work was in progress or that the work actually or impliedly was accepted by the owners.  Further, there was no evidence that the defendants knew or should have known of an unsafe condition on their premises; the defects, if any, were latent defects for which the defendants could not be held liable. Plaintiff’s appeal was denied and dismissed and the judgment of the Superior Court was affirmed.

State v. Christopher Golembewski, No. 2000-423 (October 29, 2002)

A jury instruction that improperly omits an element of an offense is subject to harmless-error analysis.  In this case, the instructional error with respect to that element was harmless. A rehearing on the defendant’s new-trial motion is warranted because the trial justice, in denying the defendant’s motion for a new trial, failed to enunciate a rationale, supported by evidence, for his decision to uphold the jury’s verdict.

  
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