Skip to main content
Rhode Island Judiciary Banner  
Supreme Court
Search
Rhode Island Judiciary > Courts > Supreme Court > OpinionsOrders > Opinions (2003-2004)  


Opinions (2003-2004)

 
Supreme Court
Published Opinions 2003 - 2004 Term

 

Casino Advisory to the Governor  - August 12, 2004

At the request of His Excellency Donald L. Carcieri, Governor of the State of Rhode Island and Providence Plantations, Justices of the Supreme Court gave an advisory opinion about the constitutionality of legislation dealing with a proposed casino in the Town of West Warwick .  The enactment at issue, G.L. 1956 chapter 1.9 of title 41, entitled "The Rhode Island Gaming Control and Revenue Act," (Casino Act), provides comprehensive guidelines for a casino operation.  The Casino Act also calls for a statewide ballot question asking the voters of this state:  "Shall there be a casino in the Town of West Warwick operated by an Affiliate of Harrah’s Entertainment in association with the Narragansett Indian Tribe?"  (referendum question).  Section 41-9.1-9.  The Governor’s request asked:  "Do the question and the legislation’s establishment of a privately-operated casino violate the [ Rhode Island ] constitutional prohibition" on lotteries in this state except those lotteries operated by the state or those previously permitted by the General Assembly.  See R.I. Const. art. 6, sec. 15.  

First, the Supreme Court justices concluded that, although the Governor’s request for an advisory opinion was flawed procedurally, they would issue an advisory opinion because of the social and constitutional importance surrounding the Casino Act.  Addressing the merits of the Governor’s request, the justices concluded that the referendum question and the Casino Act as a whole were constitutionally defective.  The justices said that the lottery prohibition in R.I. Const. art. 6, sec. 15 applied because the proposed casino was a lottery operation that would host various lottery games.  The referendum question and the Casino Act were invalid because they would have authorized a private organization, Harrah’s, to operate the lottery facility in violation of R.I. Const. art. 6, sec. 15.  Also, a casino such as the one proposed in the Casino Act had not previously been approved.

Finally, the justices concluded that R.I. Const. art. 6, sec. 22 did not cure the constitutional defects associated with the referendum question and the Casino Act.  Article 6, section 22, entitled "Restriction of gambling," provides:

"No act expanding the types of gambling which are permitted within the state or within any city or town therein or expanding the municipalities in which a particular form of gambling is authorized shall take effect until it has been approved by the majority of those electors voting in a statewide referendum and by the majority of those electors voting in a referendum in the municipality in which the proposed gambling would be allowed."

Although art. 6, sec. 22 provides for the expansion of certain types of gambling in Rhode Island , it does not repeal the lottery restriction contained in art. 6, sec. 15.  The justices read art. 6 and art. 22 together and concluded that:  (1) the expansion of all forms of gambling in this state may be undertaken only after receiving approval in accordance with art. 6, sec. 22, and (2) the expansion of lotteries within this state must meet the additional requirements set forth in art. 6, sec. 15, (state operation or prior approval).  Therefore, because the Casino Act and the referendum question violated sec. 15, both were unconstitutional.  

 

State v. Raymond Lynch Docket no: 1999-0327-Appeal (August 11, 2004)

The defendant, Raymond Lynch, appealed from Superior Court jury convictions of three counts of first-degree sexual assault and two counts of second-degree sexual assault. The victim of all five assaults was his developmentally impaired daughter, Mary.[1]  The Court affirmed the convictions and the denial of defendant’s motion for a new trial.

The defendant claimed multiple errors.  He first asserted that the trial justice abused his discretion in finding Mary competent to testify in light of her developmental disabilities.      After reviewing the four testimonial capacities required for a finding of competency, the Court concluded that the trial justice did not err in finding Mary competent to testify. more

 

Stephen Alves v. Hometown Newspapers, Inc., d/b/a The Kent County Daily Times et al, No. 03-181 (August 4, 2004)

The plaintiff, Stephen Alves (Alves or the plaintiff), appealed from a grant of summary judgment in favor of the defendant, Alan G. Palazzo (Palazzo or the defendant). Alves sued Palazzo for libel and portraying him in a false light for letters that Palazzo wrote to the editor of the Kent County Daily Times. Palazzo’s letters concerned the actions of Alves and others on the West Warwick Town Council and School Building Committee over a proposed school building project. The Superior Court granted summary judgment for the defendant pursuant to G.L. 1956 § 9-33-1 and § 9-33-2 of the Limits on Strategic Litigation Against Public Participation Act (the anti-SLAPP statute). The Superior Court also awarded the defendant costs and attorneys’ fees.

The Supreme Court affirmed the grant of summary judgment. It held that Palazzo’s letters, which expressed his concerns over the escalating costs of the school building project, were prototypical examples of protected free speech directed to members of the interested community over matters of public concern that are being considered by a governmental body. Furthermore, the statements of which the plaintiff complained were clearly statements of the defendant’s opinion based on previously disclosed facts. The Supreme Court also affirmed the award to Palazzo of costs and attorneys’ fees.

 

Robert E. Dupre v. Melanie S. Dupre, No. 02-300 (July 30, 2004)

This case involved the desire of a divorced mother to relocate with the two minor children of the marriage.  By the terms of a property settlement agreement that was incorporated into the decision pending entry of final judgment, both parties were awarded joint custody and shared physical placement in accordance with a specified schedule.  The interlocutory order and agreement further provided that if the parties were unable to agree on the primary placement of the children for the 2001-2002 academic year, the issue would be determined by the Family Court.

The parties did not agree and the matter was submitted to Family Court along with mother’s request to reside with the children in Huahine, an island in French Polynesia.  The Family Court heard the matter de novo, and awarded joint custody to both parties, and placement to mother.  It denied her request to relocate the children, however, because she had failed to show a compelling reason to reside in Huahine.

The Supreme Court ruled that the Family Court was correct to treat the issue of placement as an initial determination, rather than as a modification of an existing order.  The Court further ruled, however, that the Family Court erred by applying a compelling-reason standard, and by not addressing the best interests of the children.  The Court also enumerated certain factors that the trial courts should consider in determining relocation cases.

The Court vacated the judgment and remanded for a new hearing on the issue of placement with directions to evaluate the present best interests of the children in light of current circumstances. 

 

Foster-Glocester Regional School Committee v. Board of Review, Department of Labor and Training et al, No. 02-381 (July 16, 2004)

The Foster-Glocester Regional School Committee sought review of a District Court decision affirming the grant of unemployment benefits by the Board of Review of the Rhode Island Department of Labor and Training (board) to a schoolteacher, Michael Bailey, whose employment had been terminated for inappropriate conduct involving female students.  

Bailey appealed his termination to arbitration.  After extensive hearings, the arbitrator held that the school committee had "just cause" to terminate his employment.  The Superior Court affirmed the award. While the arbitration was pending, Bailey filed a claim for unemployment benefits, which the Director of the Department of Labor and Training granted after he determined that Bailey was discharged under "non-disqualifying circumstances." The board affirmed the award, finding the evidence insufficient to prove Bailey’s discharge was for disqualifying circumstances.  The District Court affirmed.  

On appeal, the school committee first argued that the District Court erred by holding that the complaint was moot.  The Court held that the case was not moot because it involved an issue of extreme public importance likely to evade judicial review.   

The school committee next argued that the arbitrator’s decision collaterally estopped the board from relitigating whether Bailey’s discharge was for disqualifying circumstances.  Because the Superior Court confirmed the arbitration award before the District Court hearing, sufficient identity of the issues existed, and the parties were in privity, the Court held that the District Court was collaterally estopped from rendering a decision on whether Bailey’s termination was for "disqualifying misconduct."  

Finally, the school committee argued that the board erred by refusing to give any weight to the transcripts of the arbitration hearing, which presented testimonial evidence that Bailey had been terminated for just cause.  Bailey was represented by counsel and had full opportunity to cross-examine the witnesses, and the parties before the board had similar motives and interests to the parties in the arbitration hearing.  The Court therefore held that the board, having admitted the transcripts in evidence, abused its discretion by refusing to consider them unless the school committee produced corroborating evidence.                 

Accordingly, the judgment of the District Court was quashed, and the record in the case was remanded to the District Court with the decision endorsed thereon.  

 

In re Isabella C., No. 02-400 (July 15, 2004)

The respondent-father appealed from a Family Court decree terminating his parental rights to his daughter, Isabella. On the day of her birth, he was arrested for assaulting and mistreating Isabella’s mentally ill and cognitively impaired mother.  He was held at the ACI on the charges, as well as on a marijuana possession charge, for approximately three months, and convicted one year later, receiving a twenty-year sentence with four years to serve.

In the middle of the trial on DCYF’s termination petition, the trial court allowed DCYF to amend the petition to include an allegation that father’s imprisonment would make it impossible that he would be able to care for Isabella for an extended period.  On appeal, he argued that the Rules of Juvenile Proceedings did not authorize the court to amend a termination petition.  The Supreme Court held that the amendment was within the trial justice’s discretion, and properly granted.  The Supreme Court further held that there was legal and competent evidence to support the trial justice’s findings that father was unfit by reasons of chronic substance abuse and extended incarceration, and that DCYF had made reasonable efforts to reunify father with Isabella.

 

Russell Gorman, Jr. et al v. St. Raphael Academy, No. 03-371 (July 15, 2004)

Near the end of Russell Gorman’s freshman year at Saint Raphael Academy, the principal revised the student handbook to include a hair-length regulation for boys.  Russell and his parents, Kimberly Gorman and Russell Gorman, Jr., filed a complaint alleging breach of contract and seeking injunctive relief allowing Russell to retain his long hair in contravention of the new rule. The trial justice granted the injunction. 

Saint Raphael timely appealed, asserting that the trial justice erred multiple times.  Saint Raphael first argued that the trial justice erred by failing to properly analyze this case within Russell’s single count for breach of contract. The Court agreed that the Superior Court failed to make the predicate findings of offer, acceptance, consideration and breach requisite to determining a breach of contract claim.   

Saint Raphael next argued that the trial justice erred in applying a rational basis test to evaluate the lawfulness of the hair-length rule.  The Court concluded that the determination of what rules or policies comply with the school’s mission statement is an exercise more appropriately left to the school administration.  The principal testified that he set out to change the culture of Saint Raphael and create a sense of community and shared values that would prevent distractions, promote a team spirit, and create a common value-based culture of calmness and order.  He said that there had been hair-length regulations for male students at the schools where he previously served, and he consulted student handbooks at other Catholic schools. 

After reviewing the record and the evidence adduced at trial, this Court was unable to conclude that the hair-length regulation was arbitrary or capricious or that it lacked a rational basis vis-à-vis the school’s mission statement.  More significantly, the Court held that, absent a violation of law or public policy, it was not within the province of the courts to inject itself in the rule-making authority of a private school.  

The Court held the appropriate inquiry is whether the term at issue in a contract involving a private educational institution is contrary to law or public policy.  Private schools must have considerable latitude to formulate and enforce their own rules to accomplish their academic and educational objections.  These rules and regulations generally are binding on those who wish to remain members, provided however, that said rules do not conflict with public policy.  In Rhode Island, it is firmly established that a contract term is unenforceable only if it violates public policy. City of Warwick v. Boeng Corp., 472 A.2d 1214, 1218 (R.I. 1984).  The Court extended this rule to hold that a contractual rule or regulation of a private school is lawful and enforceable as long as it is not against public policy or law. 

The Gormans failed to adduce evidence of a violated contractual right or evidence that the hair-length rule is contrary to public policy of the State of Rhode Island.  The Court then concluded that Saint Raphael’s adoption of a regulation concerning the length of hair of male students was a valid exercise of its discretionary authority, and therefore reversed the judgment of the Superior Court. 

 

Garden City Treatment Center, Inc. v. Coordinated Health Partners, Inc., et al, No. 03-517 (July 14, 2004)

 The defendants, Blue Cross and Blue Shield of Rhode Island (Blue Cross) and Coordinated Health Partners, Inc. (Blue CHiP), appealed a partial summary judgment in favor of Garden City Treatment Center, Inc. Garden City is an emergency health care provider that entered into agreements with defendants that enabled Garden City to seek reimbursement from defendants for medical services provided to members of defendants’ health plans. These agreements also allowed defendants to inspect and "audit" plaintiff’s medical and financial records to determine whether the services plaintiff provided to health plan members were medically necessary and billed at the appropriate rate. 

The defendants conducted a series of audits and found that plaintiff allegedly had been overpaid for many of the claims it submitted for the years 2000, 2001, and the first quarter of 2002. In calculating the overcharges, defendants employed sampling and extrapolation methods in which they reviewed only a small sample from among the thousands of claims that Garden City submitted for a given year or period of months. The defendants reviewed the claims for errors and determined how many claims out of a particular set of claims contained errors. They then applied that error rate over all the claims submitted in a particular period. Similarly, defendants reviewed the sampled claims to determine the average amount that they overpaid to Garden City because of the errant claims. They then applied this average overcharge to the entire set of claims for the period covered by the audit. 

As a result of its 2001 audits of Garden City, defendants alleged that Garden City owed them a total of $160,952.35 in reimbursements for overcharges. The defendants collected these reimbursements by offsetting this amount against subsequent claims that Garden City submitted.  Further rounds of audits resulted in alleged overcharges of $503,693.03 by plaintiff. Before Blue Cross and Blue CHiP could offset these overcharges, Garden City applied for and received a preliminary injunction enjoining the offsets. Subsequently, Garden City received partial summary judgment for $33,684.83 against Blue CHiP and $124,478.53 against Blue Cross for charges that they wrongfully offset against Garden City claims. The Superior Court also permanently enjoined defendants from offsetting $455,547.45 in future claims. Specifically, the court found that there was no language in the contracts that allowed defendants to employ sampling and extrapolation methods when auditing records of Garden City’s submitted claims.

The Supreme Court affirmed. The Court agreed with the Superior Court that the contracts were clear and unambiguous. Furthermore, the Court held that it was not error for the Superior Court hearing justice to refer to a legal dictionary in helping to determine the ordinary meaning of the word "audit." Moreover, evidence of defendants’ use of sampling techniques in auditing claims under contracts with other parties was irrelevant to this case. In addition, defendants appeal to federal authority was unavailing because federal courts allow sampling techniques pursuant to federal guidelines. Finally, the Court rejected defendants’ argument that the use of techniques not explicitly provided for in the contracts would outlaw the use of any undefined techniques in performing audits. The Court held that defendants, as the drafting parties, were in the best position to know that they intended the term "audit" to carry a technical meaning; hence, they should have defined the term in the contracts.

 

Weybosset Hill Investment, LLC v. Thomas Rossi, in his capacity as tax assessor for the City of Providence, No. 02-693 (July 6, 2004)

The City of Providence appealed from a Superior Court judgment in favor of the plaintiff, Weybosset Hill Investments, LLC.  Blue Cross and Blue Shield of Rhode Island challenged three years of tax assessments on an office building known as One Weybosset Hill.  While these tax appeals were pending, Blue Cross sold the property and assigned its rights to those appeals to Weybosset Hill.  The new owner continued to prosecute the appeals and challenged an additional assessment in its own right after it took title to the property. After the Board of Tax Assessment Review denied these appeals, Weybosset Hill filed petitions in Superior Court challenging as excessive the property tax assessments for tax years 1997, 1998, 1999, and 2000.  The petitions were consolidated for the purposes of trial, and the trial justice ruled that the property had been overassessed for all four tax years.  The trial justice awarded Weybosset Hill a total of $1,223,358.01. 

The Supreme Court affirmed the judgment of the Superior Court.  The city was not entitled to amend its answers to Weybosset Hill’s petitions because Weybosset Hill had demonstrated prejudice sufficient to oppose the city’s motion to amend.  Furthermore, the city’s motion to amend its answers previously had been denied by a different Superior Court justice; hence, that ruling was the law of the case.  In addition, the Supreme Court held that the trial justice did not err in denying the city’s motion for a continuance because of the former tax assessor’s medical condition.  Furthermore, the Superior Court previously held that Blue Cross’s rights to pursue the tax appeals were assignable, and that Weybosset Hill had standing as an aggrieved party. The assignment of the tax appeals from Blue Cross to Weybosset Hill was valid because it was a purely economic transaction.

 

State v. Keith A. Werner, No. 96-570 (July 1, 2004)

The defendant, Keith A. Werner (defendant), appealed from a Superior Court judgment convicting him of one count of robbery, two counts of assault with a dangerous weapon, and one count of larceny over $500.  The defendant appealed on numerous grounds, including the trial justice’s refusal to authorize money for defendant to hire an expert to testify at trial about eyewitness identification; the trial justice’s refusal to allow defendant to hire an expert to administer a polygraph examination and then testify about the results at trial; the trial justice’s denial of his motion to dismiss because the police destroyed potentially exculpatory evidence; and the trial justice’s imposition of an additional sentence pursuant to the habitual offender statute.  

The Supreme Court affirmed the trial justice’s rulings on all but one issue.  The Supreme Court determined that the trial justice’s decision not to allow an expert to testify about the problems with eyewitness identification was well founded, in part because defendant failed to present sufficient evidence of a need for expert testimony on the subject. The Supreme Court also reaffirmed its per se rule excluding evidence gathered through a polygraph examination and determined that defendant failed to show that he had been injured by the destruction of evidence that should have been preserved for trial.  Finally, the Supreme Court determined that the prosecution did not provide defendant with requisite notice that it would be pursuing habitual offender status and, therefore, the trial justice erred in sentencing defendant pursuant to that statute.  This Court reaffirmed defendant’s sentence of life in prison, plus twenty years, ten years and twenty years, all to run consecutively, but vacated the additional forty-five year sentence imposed based on the habitual offender statute.    

S. v. Ronald H. Harnois (June, 2004) No.2001-221-C.A

 The defendant appealed from his convictions for two counts of first-degree murder, two counts of aiding and abetting murder and one count of conspiracy to commit murder.  The challenge to his combined convictions for murder, and for aiding and abetting that same murder, was waived for failure to raise the double jeopardy defense before trial.  Even if double jeopardy had not been implicated, this issue was waived for failure to move for judgment of acquittal at the close of all of the evidence.  The trial justice did not overlook or misconceive any material evidence in denying the motion for a new trial and articulated a sufficient rationale in so denying.  When one or more of the aggravating factors present in G.L. 1956 § 11-23-2 is present, the Superior Court has jurisdiction to sentence a person who is vicariously liable for the murder of another to a term of life imprisonment without parole.  Although the trial justice failed to articulate sufficient reasons for imposing the life without parole sentence, following its de novo review, the Supreme Court was satisfied that there was ample evidence to support imposition of the sentence.

 

Coastal Recycling, Inc. v. Richard F. Connors, in his capacity as Finance Director and Purchasing Agent of the Town of Johnston et al, No. 03-322 (June 25, 2004)

This case originated in the Town of Johnston when the town council (council) rejected a resolution submitted by the town’s purchasing officer to accept a bid offered by Coastal Recycling, Inc. (Coastal) to fulfill a four-year refuse-collection contract.  The council found that although Coastal had submitted the lowest bid, it had failed to meet some of the specifications set forth in the bid application and thus was not a responsive, responsible bidder.  The council recommended that the contract be awarded to the second-lowest bidder, Rambone Disposal Services, Inc. (Rambone), instead.  Coastal filed a complaint with the Superior Court seeking declaratory and injunctive relief.  Rambone intervened as a defendant, seeking enforcement of the council’s decision.  Relying on G.L. 1956 chapter 55 of title 45, the trial justice found that the statute preempted the town’s ordinance and endowed the town’s purchasing officer with sole authority to award municipal contracts; therefore, the council was not at liberty to review that decision.  Rambone timely appealed to the Supreme Court.  

This Court held that chapter 55 of title 45 must be read in pari materia with provisions of the town’s ordinance and charter that give the council authority to reject any and all bids that have been solicited by the purchasing officer.  Therefore, because the council exercised sound discretion in rejecting Coastal’s bid, this Court was required to affirm that decision.  The council’s recommendation that Rambone’s bid be accepted, however, fell outside the scope of the council’s power.  Pursuant to § 9.6 of the town’s charter, once the council rejected Coastal’s bid the matter should have been remanded to the purchasing agent to re-solicit new bids.  Therefore, this case was remanded to the town to act accordingly.  

 

Samuel Reyes v. Providence Place Group, LLC, No. 03-623 (June 24, 2004)

The defendant, Providence Place Group, L.L.C (PPG), appealed from a Superior Court judgment in favor of the plaintiff, Samuel Reyes, for $175,000, plus interest and costs. Reyes was employed by a cleaning service that cleaned the food concession area at the Providence Place Mall (the mall). Reyes was injured when a freight elevator in the mall stalled and trapped him inside. The elevator’s air conditioning malfunctioned, causing the chamber to become very hot. Reyes lost consciousness and fell, injuring his shoulder. Reyes filed suit against PPG, and properly served it with a summons and complaint. However, PPG never answered the complaint because it was somehow lost in the transmission from PPG’s agent for service of process to its liability insurer, Travelers Insurance Group (Travelers). Travelers was the entity normally responsible for defending PPG in personal injury actions.

Four months after filing his complaint, Reyes moved for entry of default against PPG. The Superior Court clerk entered the default, and eight months later Reyes sent PPG a notice of an oral proof of claim hearing. PPG and Travelers both received notice of this hearing, yet defense counsel did not appear on behalf of PPG. Subsequently, an order was entered directing that "judgment may enter" for the plaintiff for $175,000, plus interest and costs. PPG then moved to remove the default and for a stay of entry of judgment. The hearing justice denied PPG’s motions, and judgment was entered for Reyes in the same amount as awarded at the proof of claim hearing. The hearing justice found that PPG had not made a showing of "excusable neglect" sufficient to justify setting aside the default.

On appeal, the Supreme Court held that the order that Reyes entered after the proof of claim hearing was not a judgment pursuant to Rule 58(a) of the Superior Court Rules of Civil Procedure. Rule 58(a) requires that all judgments be set forth on a separate piece of paper. Therefore, the order that Reyes submitted was not a judgment within the scope of the rule. As a result, the Supreme Court held that the hearing justice applied the wrong standard to PPG’s motion to vacate the entry of default. The Superior Court applied the more stringent "excusable neglect" standard under Rule 60(b) of the Superior Court Rules of Civil Procedure instead of the "good cause" standard under Rule 55(c) of the Superior Court Rules of Civil Procedure. The Supreme Court reversed the judgment and remanded the case for findings under the proper standard.

 

David Torres v. Kathleen Damicis, in her capacity as Treasurer of the Town of Richmond, No. 03-576 (June 24, 2004)

The plaintiff, David Torres, appealed from a summary judgment in favor of Kathleen Damicis, in her capacity as the treasurer of the Town of Richmond (the town). A town resident, Cosmo J. Gentile, applied for a building permit to construct a garage on his property. On his application, Gentile identified the contractor, Mar Mark Builders (Mar Mark), but did not provide Mar Mark’s registration number. The town building inspector issued the permit without ascertaining Mar Mark’s registration number as required by statute. Mar Mark was not registered and did not have workers’ compensation insurance. 

Torres was hired by Mar Mark to help construct Gentile’s garage. Torres was injured when he fell from staging while working on the roof of the garage. Torres sued the town alleging that the building permit issued to Gentile violated G.L. 1956 § 5‑65‑3(c). The Superior Court granted summary judgment for the town based on the town’s immunity from suit for tort claims under the public duty doctrine. The Supreme Court affirmed the judgment. The Court held that Torres’s claim was barred by the public duty doctrine because the town building inspector was not performing an activity that normally was performed by private persons. Furthermore, Torres did not satisfy the requirements of either exception to the public duty doctrine. Torres did not produce any evidence establishing that the town owed him a special duty or that the town placed him in a position of peril by issuing the building permit.

 

Jeff Anthony Properties v. The Zoning Board of Review of the Town of North Providence et al, No. 03-356 (June 24, 2004)

The plaintiff, Jeff Anthony Properties (Anthony Properties or plaintiff), sought review by writ of certiorari of a Superior Court judgment dismissing its complaint and granting summary judgment in favor of the intervenors in its appeal from a decision of the Zoning Board of Review of the Town of North Providence. The Supreme Court quashed the grant of summary judgment, holding that a statutory provision requiring the plaintiff to give notice of the appeal to certain persons entitled to notice within ten days of filing the appeal, was not a prerequisite to invoking Superior Court jurisdiction.  Moreover, the Court declined to construe the notice requirement strictly against the plaintiff where there existed an ambiguity in the statutory language. 

Anthony Properties filed an application with the zoning board in March 2002 for a special-use permit or variance to construct a one-story addition to an existing structure in North Providence. A hearing on the application was held in front of the zoning board. At the hearing, the intervenors, who owned abutting property, presented evidence from a real estate consultant and a traffic engineer to oppose the application. The zoning board denied the application, and Anthony Properties timely appealed the decision to Superior Court. Anthony Properties failed, however, to send notice of its appeal to nearby landowners within ten days, as required by statute.

After receiving notice, the owners of an abutting parcel intervened and filed a motion for summary judgment, arguing that Anthony Properties failed to give notice to nearby landowners within ten days of filing its appeal in Superior Court. The motion for summary judgment was granted, and Anthony Properties successfully petitioned the Supreme Court for a writ of certiorari.

The Supreme Court quashed the Superior Court judgment holding that the ten-day notice requirement was not jurisdictional.  Moreover, the motion justice found that the intervenors had not been prejudiced by the tardy notice.  Also, the Supreme Court declined to construe the ten-day notice requirement strictly against the plaintiff because of an ambiguity in the statutory text. Therefore, the Supreme Court quashed the judgment and remanded the case for further proceedings.

 

State v. Michael R. Grayhurst, No. 01-119 (June 23, 2004)

The defendant, Michael R. Grayhurst (defendant), was charged with nine counts of threats to public officials, ten counts of violating a no-contact order, three counts of extortion and blackmail, one count of stalking, one count of assault on a uniformed police/fireman and one count of obstructing a police officer.  Following a trial in the Superior Court, defendant was convicted of each of these twenty-five criminal counts.  The defendant appealed his convictions, asserting that:  

  1. His right not to be placed twice in jeopardy for the same offense was violated because a) his conviction for assaulting a uniformed sheriff/officer was based on the same acts for which defendant was found to be in contempt of court; b) one of his convictions for extortion and blackmail should merge with one of his convictions for violation of a no-contact order; and c) his conviction for stalking should merge with six of his convictions for violations of a no-contact order. 
  2. The State violated Rule 16 of the Supreme Court Rules of Civil Procedure. 
  3. The contents of an envelope sent by defendant to his ex-wife (victim), which were admitted into evidence, constituted inadmissible hearsay and were unduly prejudicial. 
  4. The contents of the two letters defendant wrote to victim, which were admitted into evidence, constituted inadmissible evidence of prior bad acts. 
  5. The testimony of a Family Court magistrate about the inability of a deputy sheriff whom defendant assaulted to return to work following the assault was both prejudicial and irrelevant, and constituted bolstering and inadmissible evidence of prior bad acts. 
  6. The testimony of a Superior Court justice and of a District Court judge constituted inadmissible evidence of prior bad acts, hearsay, and bolstering. 
  7. The testimony of the sheriff whom defendant assaulted was prejudicial and irrelevant.
  8. The testimony of a detective from the Rhode Island State Police that a District Court judge had imposed a no-contact order on defendant constituted inadmissible hearsay. 
  9. The trial justice improperly restricted certain of the questions posed by defendant on cross-examination of defendant victim.
  10. The trial justice improperly denied defendant’s motion to suppress a statement he made to a Rhode Island State Police detective. 
  11. There was insufficient evidence to support the extortion and blackmail convictions because defendant’s threats were not shown to be genuine. 
  12. There was insufficient evidence to support the convictions for threatening a public official because the threats were not delivered directly to the officials. 
  13. The trial justice gave incorrect jury instructions on the charges of threatening a public official, extortion and blackmail, and stalking.
  14. The trial justice failed to adequately answer a question from the jury. 
  15. The trial justice improperly permitted the State to amend its complaint without defendant’s consent to reflect the proper date of letters forming the basis of charges of extortion and blackmail. 
  16. Several discrepancies exist between the transcript of defendant’s sentencing by the trial justice and the Judgments of Conviction and Commitment. 
  17. The trial justice improperly denied defendant’s motion for a judgment of acquittal and motion for new trial.
  18. The defendant is entitled to have his ineffective assistance of counsel claim considered on direct appeal. 

 

The Supreme Court held that: 

 

1.                  Because defendant failed to raise his double jeopardy argument prior to trial, it is waived. 

2.                  The defense counsel waived the Rule 16 objection at trial.

3.                  The contents of the envelope admitted into evidence were not offered for their truth, and therefore did not constitute hearsay.  Moreover, the contents were not unduly prejudicial. 

4.                  The contents of the letters to victim do not constitute evidence of prior bad acts.

5.                  The testimony of the Family Court magistrate was not prejudicial and irrelevant, and did not constitute bolstering, or evidence of prior bad acts.  

6.                  The testimony of a Superior Court justice and a District Court judge did not constitute inadmissible evidence of prior bad acts, hearsay, or bolstering. 

7.                  The testimony of the sheriff whom defendant assaulted is not unduly prejudicial. 

8.                  The testimony of a detective from the Rhode Island State Police did not constitute inadmissible hearsay. 

9.                  The trial justice properly restricted defense counsel’s cross-examination of victim, because certain of defense counsel’s questions would have required victim to reveal attorney-client privileged information, and attorney-client privilege had not previously been waived.

10.              The trial justice properly denied defendant’s motion to suppress a statement he made to a Rhode Island State Police detective. 

11.              Because defendant’s threats were shown to be genuine, there was sufficient evidence to support the extortion and blackmail convictions.  

12.              The defendant’s threats to public officials need not have been delivered directly to those officials in order to constitute a crime; thus, there was sufficient evidence to support the convictions for threatening a public official. 

13.              The trial justice’s jury instructions adequately stated the law and neither reduced nor shifted the State’s burden of proof.  Thus, the instructions were sufficient. 

14.              Because the defense counsel failed to remind the trial justice of the requested answer to the jury’s question, this question is waived. 

15.              The amendment of the complaint did not prejudice defendant’s substantive rights, and, therefore, is permissible. 

16.              The trial justice’s denial of defendant’s motion for a judgment of acquittal and motion for new trial was proper.

17.              The defendant is not entitled to have his ineffective assistance of counsel claim considered on direct appeal.  Instead, this claim may be considered as part of a petition for post-conviction relief. 

18.              This Court held that the discrepancies between the transcript of defendant’s sentencing by the trial justice and the Judgments of Conviction and Commitment should be corrected in accordance with the sentencing as set out by the trial justice. 

Accordingly, this Court affirmed the judgment of the Superior Court.  The record was remanded to the Superior Court for correction of the Judgments of Conviction and Commitment. 

 

In re Island Hi-Speed Ferry, LLC, No. 02-512 (June 23, 2004)

This case came before the Supreme Court on separate statutory petitions for certiorari filed by Interstate Navigation Company d/b/a The Block Island Ferry (Interstate), and the Town of New Shoreham (collectively petitioners).  The petitioners sought review of an August 20, 2002, report and order (2002 order) of the Public Utilities Commission (PUC or commission) issued in docket number 2802, in which it ruled that Island Hi-Speed Ferry, LLC (Hi-Speed) could continue operating through the 2002 season charging a previously approved rate.  Also in the 2002 order, the PUC denied the petitioners access to a compliance report and related data responses (compliance report) Hi-Speed submitted as part of its continuing obligation to provide information to allow the PUC to monitor the reasonableness of Hi-Speed’s rates.  Because the 2002 operating season has passed and the PUC has since issued a new order establishing Hi-Speed’s rates, the issues raised in this case were moot.  Therefore, the Court affirmed the 2002 order of the PUC.

 

Paul A. DeCesare, individually and on behalf of all other Persons similarly situated v. Lincoln Benefit Life Company, No. 03-119 (June 23, 2004)

In this class action, the Supreme Court upheld the certification of the class by the trial justice pursuant to Rule 23(a) and 23(b)(2) of the Superior Court Rules of Civil Procedure.  Having concluded that plaintiffs met their burden of demonstrating the four prerequisites of Rule 23(a) and further finding, pursuant to Rule 23(b)(2), that declaratory and final injunctive relief was requested and appropriate, the Supreme Court affirmed the Superior Court’s class certification.  The Supreme Court reversed the Superior Court’s decision to certify the class under Rule 23(b)(3), however, concluding that certification under Rule 23(b)(2) sufficed and was the more attractive vehicle in which to proceed because of its broader res judicata effect.  

With respect to the decision on the merits, however, the Supreme Court reversed the decision of the trial justice granting summary judgment to the defendant, Lincoln Benefit Insurance Company.  The Supreme Court rejected the finding by the trial justice that Lincoln "declared" the annual earnings rate and cap for an annuity in accordance with the terms of the annuity contract by notifying its employees of the rate by a wholly internal e-mail.  The Supreme Court concluded that the term "declare" encompasses some affirmative act capable of providing notice to the annuitants and an internal e-mail is insufficient.  The judgment is affirmed in part and vacated in part.

 

State v. Hector Jaiman, No. 02-286 (June 22, 2004)

In this criminal case the defendant, Hector Jaiman, challenged his convictions for first degree murder and felony assault on the ground that an out-of-court police statement obtained from the state’s cooperative witness was improperly admitted into evidence as a prior inconsistent statement.  The Supreme Court rejected these contentions.  The only objection to the admissibility of this evidence was that it failed to comply with Rule 801(d)(1)(A) of the Rhode Island Rules of Evidence. The defendant argued that the witness’s professed failure of memory rendered him unavailable as a witness and therefore not subject to cross examination.  Citing California v. Green, 399 U.S. 149 (1970) and U.S. v. Owens, 484 U.S. 554 (1988), the Court held that the police statement was admissible as substantive evidence as a prior inconsistent statement of a testifying witness.  When the declarant testifies under oath and is subject to cross examination concerning the statement, a prior inconsistent statement is admissible as substantive evidence in accordance with Rule 801(d)(3)(A).  Neither the rule nor the Confrontation Clause is violated when the witness claims a memory loss relative to the circumstances surrounding the out-of-court-statement if defendant is afforded an adequate opportunity for cross examination.

 

V. George Rustigian Rugs, Inc. v. Renaissance Gallery, Inc., et al, No. 03-625 (June 22, 2004)

This case concerned the legitimacy of a going-out-of-business sale (GOB sale) conducted by an oriental rug dealer.  The plaintiff, V. George Rustigian Rugs, Inc., through its president, Rosalind Rustigian, filed suit against the defendants alleging that they acquired a substantial inventory of oriental rugs in contemplation of a GOB sale in violation of G.L. 1956 § 6-14-9.  After a Superior Court bench trial, the trial justice found for the defendants on the ground plaintiff failed to sustain its burden of proving that the defendants acquired stock in contemplation of a GOB sale.  However, the Supreme Court concluded that the trial justice erred in her interpretation of § 6-14-9 because, although a presumption arises with respect to any goods ordered within thirty days of a GOB sale, a retailer is prohibited from acquiring any merchandise in contemplation of such a sale.  This error is deemed harmless in light of the trial court’s extensive findings of fact that plaintiff failed to prove that defendant ordered any merchandise in contemplation of a GOB sale.  The judgment is affirmed. 

State v. Sonia Lora, No. 02-271 (June 21, 2004)

The defendant, Sonia Lora, appealed from a Superior Court conviction of felony assault and malicious destruction of property. The defendant argued that the Superior Court erred in denying her motion for a new trial and improperly admitted two exhibits.  The Court affirmed the Superior Court’s judgment of conviction. 

Candida Santana testified that defendant drove her car into Santana’s car, smashed her car windshield with rocks and bottles, smashed her driver’s side window with an iron pipe, and stabbed her with a knife in the back and face. An eyewitness testified that he observed defendant at the shopping plaza, standing outside of Ms. Santana’s car holding her by the hair and punching her. A police officer testified that when she arrived on the scene, she observed Ms. Santana bleeding heavily from the face and head. The officer also saw defendant jump into another car and leave the scene. The officer pursued the car, stopped it, and took defendant back to the scene, where the eyewitness identified her. 

The defendant contended that the trial justice erred in admitting two photographs of Ms. Santana’s car at the scene of the incident because, at the time of the incident, the car was approximately ten to fifteen feet south of the location where it was depicted in the photographs. After reviewing the exhibits and the testimony, the Court concluded that the trial justice did not abuse his discretion by allowing the admission of these two photographs. The Court was satisfied that the photographs were not misleading in the context for which they were offered because the difference in location was noted at the time the photographs were introduced. 

The defendant also asserted that the trial justice erred in denying her motion for a new trial because the verdict was against the fair preponderance of the evidence and failed to do substantial justice between the parties. The defendant testified at trial that Ms. Santana was the initial aggressor and that Ms. Santana first tried to run the defendant over with her car. 

After an independent review of the evidence in this case, the trial justice weighed the credibility of the witnesses and other material evidence and determined that his verdict as a "thirteenth juror" was the same as that reached by the jury. The trial justice accepted the testimony of the victim, Ms. Santana, along with the other witnesses, as more credible than that of the defendant.

The Court concluded that the trial justice did not overlook or misconceive material evidence and was not clearly wrong in his assessment of the evidence. 

 

Fleet National Bank, Trustee v. 175 Post Road, LLC, No. 02-182 (June 21, 2004)

A purchaser of real estate, AZA Realty Trust (AZA), appealed from a Superior Court judgment in response to a petition for instructions by the Receiver of the seller, 175 Post Road, LLC, concerning the obligations of the parties under a purchase and sale agreement. The Superior Court ruled in favor of the Receiver that the seller’s responsibility for asbestos abatement was limited to the terms contained in the parties’ amended purchase and sale agreement.  

AZA agreed to purchase commercial real estate from the Receiver and Neles-Jamesbury, Inc. (Neles-Jamesbury), assignee of the original mortgage holder on the property, Fleet National Bank. The Receiver and Neles-Jamesbury negotiated with AZA for the sale of the property. The dispute arose out of the scope of asbestos abatement for the subject property. AZA claimed that the parties committed a mutual mistake because the purchase and sale agreement did not reflect the scope of asbestos abatement that plaintiff suggested in its original offer. The Supreme Court affirmed the Superior Court judgment because the purchase and sale agreement was unambiguous and clearly specified the scope of asbestos remediation. Moreover, the purchase and sale agreement was later amended to define the scope of asbestos abatement in more precise terms. Therefore, the Supreme Court held that any misunderstanding of the terms of the agreement by the buyer was the result of a unilateral mistake, rather than a mutual mistake or fraudulent misrepresentation.

 

Lester Hoffman et al v. Judy Davenport Metcalf et al, No. 03-431 (June 21, 2004)

The plaintiffs, Lester Hoffman and Anne L. Mishley (plaintiffs), appealed pro se from a Superior Court grant of summary judgment in favor of the defendants, Berkeley Manor d/b/a Newport Green Associates (Berkeley Manor) and Judy Davenport-Metcalf (collectively, defendants).  The plaintiffs were tenants in the defendants’ apartment complex at Newport Green.  The plaintiffs’ complaint alleged that Berkeley Manor’s earlier eviction action against them was brought in retaliation for their efforts to abate a noise problem at the apartment complex.  The plaintiffs also alleged that Ms. Davenport-Metcalf’s criminal complaints against them made to the Newport police and her legal action for libel and slander were an abuse of process and a malicious prosecution. 

The Superior Court granted summary judgment for the defendants, ruling that the plaintiffs’ suit was barred by G.L. 1956 chapter 33 of title 9, the anti-SLAPP statute.  The Supreme Court affirmed, but on different grounds.  The Supreme Court held that the anti-SLAPP statute did not apply in this case because the private causes of action and criminal complaints did not constitute issues of public concern sufficient to invoke the provisions of chapter 33 of title 9.  Nevertheless, the Supreme Court found no merit to the plaintiffs’ complaint.

Clifford McFarland et al v. Michael Brier et al, No. 02-500 (June 21, 2004)

This case involves competing claims to a certificate of deposit (CD) that a guarantor pledged as collateral to secure his personal guaranty of a loan that a bank made to his company.  Later, a creditor of the corporate borrower and guarantor obtained a writ of attachment against the CD.  The lending bank, First Bank and Trust Co. (the bank), and the garnishing creditor, Read & Lundy, both claimed superior rights to the CD.  In 1996, the defendant guarantor Michael Brier, a bank customer, pledged a $200,000 CD to the bank to secure his personal guaranty on a loan the bank issued to Brier’s company, Consigned Systems, Inc. (CSI).  Approximately six months later, Read & Lundy served the bank with a prejudgment writ of attachment for any of Brier’s assets in the bank’s possession, up to the amount of $100,000.  After the bank received the writ, but before it had matured into a full right of garnishment, the bank applied the CD to pay down the CSI loan, on which CSI was in default.

Concluding that the bank held a prior perfected security interest, the Supreme Court reversed the Superior Court decision and vacated the judgment in favor of Read & Lundy.  The Court held that under Article 9 of the Uniform Commercial Code, the bank perfected its security interest when it took possession of the pledged CD.  This CD qualified as an Article 9 "instrument" because it was a writing of a type that would be transferred in the ordinary course of business by delivery with any necessary endorsement or assignment.  Even though the CD bore a "nontransferable" legend, the Court held that this legend was not controlling for Article 9 collateral classification purposes.  In addition, the bank had superior rights to the CD under its common-law right of setoff.

The Court next held that, notwithstanding the later-served writ of attachment, the bank properly applied the CD against the CSI loan balance without first seeking judicial approval to do so.  As a creditor with a prior perfected security interest, the bank was free to dispose of the CD upon default, as long as it conducted every aspect of the disposition in a commercially reasonable manner.  Likewise, when a garnishee conveys attached property to a third party, that third party takes subject to the attachment.  Although nothing in Article 9 or the common law of garnishment required the bank to obtain judicial approval before liquidating the CD and applying it to the balance due on the defaulted loan, the Court cautioned that a secured party that does not obtain prior judicial approval risks liability if it disposes of the attached collateral in a commercially unreasonable manner.  Finally, the bank was entitled to liquidate the CD under its common-law right of setoff — an extrajudicial self-help remedy — without obtaining prior judicial approval.  

Estate of Brian W. Hart a/d/a Brian William Hart v. Cheryl A. LeBlanc, No. 03-464 (June 18, 2004)

This case originated in the Probate Court of the Town of Richmond, where the Estate of Brian W. Hart (estate) filed a petition to sell certain real property.  The Probate Court denied the estate’s petition and the estate appealed to the Superior Court pursuant to G.L. 1956 § 33-23-1.  The respondent filed a motion to dismiss due to the estate’s failure to have the entire Probate Court transcript, which was created by a stenographer that the estate had commissioned, submitted to the Superior Court within thirty days of the execution of the Probate Court order.  Relying on § 33-23-1, the Superior Court granted the respondent’s motion to dismiss.  The Supreme Court reversed the Superior Court’s decision, holding that when a transcript or electronic recording was made during Probate Court proceedings, the appealing party must submit a written transcript of the relevant portion of the proceedings to the Superior Court on appeal.  The Superior Court’s ruling was reversed because the Supreme Court determined that the petitioner had submitted the relevant portion of the Probate Court transcripts to the Superior Court.

Crafford Precision Products Co. v. Equilasers, Inc., No. 03-418 (June 16, 2004)

The plaintiff, Crafford Precision Products Co. (plaintiff), purchased four laser welders from the defendant, Equilasers, Inc. (defendant).  The laser welders malfunctioned, and plaintiff subsequently filed suit against defendant, alleging breach of express warranty, breach of implied warranty of merchantability, breach of implied fitness for a particular purpose, breach of obligation to deal in good faith, and conversion.  A jury trial was held, at which defendant’s only witness testified about one of the laser welders, identified as unit 21.  A verdict was rendered in favor of defendant on all counts.  Thereafter, defendant revealed the laser welder identified as unit 21, about which its witness testified, actually was a different laser welder, unit 22.    

The plaintiff then filed a motion for new trial based on this newly discovered evidence, and for sanctions against defendant, in the Superior Court.  The Superior Court granted plaintiff’s motion for new trial as to the counts of conversion and breach of implied warranty of fitness for a particular purpose and denied plaintiff’s motion to impose sanctions.  The plaintiff appealed from the denial of its motion for costs and sanctions, arguing the hearing justice abused his discretion by not granting sanctions, while defendant appealed from the trial justice’s grant of a new trial on the counts of conversion and breach of implied warranty of fitness for a particular purpose, arguing the newly discovered evidence was not sufficient to justify a new trial.   The Supreme Court held that the hearing justice did not abuse his discretion either in refusing to impose sanctions, or in granting a new trial based on his determination that the newly discovered evidence was capable of changing the verdict at trial and was sufficiently credible to warrant a new trial.  Accordingly, the Court affirmed the judgment of the Superior Court.  

Michael Walker v. Urbano Prignano, Jr., No. 03-631 (June 16, 2004)

Summary judgment was entered against the plaintiff police officer in his suit to recover for injuries suffered while responding to a security alarm that had sounded at the defendant’s home.  The plaintiff appealed.  The Supreme Court affirmed the summary judgment, holding that the public-safety officer’s rule barred the plaintiff’s claim.  The Court rejected the plaintiff’s argument that the rule no longer applied once he had completed his inspection of the defendant’s property and was responding to a separate emergency that he had observed off the premises.  Noting that the plaintiff was injured while still on the defendant’s property, the Court concluded that the injury was one the officer reasonably could anticipate arising under the emergent circumstances presented.  Additionally, the Court determined that the plaintiff’s unexpected presence on the property demonstrated that the defendant neither had the opportunity to exercise reasonable care in maintaining his property nor to exercise control over the plaintiff’s actions once there.

State v. Harold Summerour, No. 03-621 (June 16, 2004)

The Supreme Court affirmed a hearing justice’s decision to revoke the defendant’s probation and sentence him to serve six years of a previously suspended sentence.  On appeal, the defendant argued that the hearing justice erred in assessing the credibility of the defendant and the victim, both of whom testified at the probation-revocation hearing.  Specifically, the defendant argued that the hearing justice should have considered the victim’s own criminal record before determining that the victim was credible, that the hearing justice failed to consider discrepancies between the victim’s testimony and that of a police officer who responded to the scene and testified at the hearing, and that the hearing justice erroneously considered a charge against the defendant when assessing his credibility after that charge had been dismissed.  This Court held that the hearing justice’s finding that the defendant had failed to keep the peace pursuant to the terms of his probation were supported by satisfactory evidence and that he did not err his in credibility assessments.   

Peter A. Carnevale et al v. Joan L. Dupee, No. 03-259 (June 15, 2004)

Landowner claiming title to land by adverse possession argued that she and her predecessors in title had met all required elements of G.L. 1956 § 34-7-1, having maintained the disputed parcel by erecting fences and mowing the area openly for more than ten years.  The record owners, abutting landowners, refuted her claim by arguing that the alleged adverse possession was not open and notorious because dense vegetation blocked their view of the subject parcel.  After a nonjury trial in the Superior Court, a trial justice agreed with the record owners that claimant had failed to demonstrate by clear and convincing evidence that her possession was open and notorious because the parcel was inaccessible and her activity was not visible.  The trial justice deemed this dispositive of the claim.  The Supreme Court reversed, concluding the trial justice erred as a matter of law.  In keeping with Tavares v. Beck, 814 A.2d 346 (R.I. 2003), an owner may be charged with knowledge of the adverse use of his land regardless of whether the use is visible from the street or boundary line.  The judgment was vacated and remanded to the Superior Court for further findings of fact on the adverse possession claim.

David Nickerson et al v. Jan H. Reitsma, in his capacity as Director of the Rhode Island Department of Environmental Management, No. 02-531 (June 15, 2004)

On certiorari before the Supreme Court, the respondent, Jan H. Reitsma, in his capacity as Director of the Rhode Island Department of Environmental Management (respondent), sought review of a decision of the Superior Court that upheld the factual findings and conclusions of law of an administrative hearing judge, yet vacated the penalty imposed based on his "inherent equitable authority" to do so.  The respondent also challenged an order issued by the trial justice that purported to consolidate the administrative appeal with a pending civil action against a defendant who defaulted and was not a party to the administrative appeal. 

The trial justice erred in consolidating the administrative appeal with a pending civil action and in taking testimony in the context of an administrative appeal.  Further, having found that the administrative hearing officer properly performed his responsibilities, that he made sufficient findings of fact to support the decision and did not make errors of law, the trial justice erred in vacating the penalty.  When passing upon appeals of administrative agency decisions in accordance with  § 42-35-15 of the Rhode Island Administrative Procedures Act, the trial justice’s authority is limited to a review of the record to determine if legally competent evidence was produced sufficient to support the agency decision.  The judgment is quashed. 

Eliza Richards et al v. Yakub Halder et al, No. 03-380 (June 15, 2004)

This is an appeal from a judgment granting a permanent injunction restraining the defendants from using vehicles to traverse and park on a right-of-way to their home.  The parties reside in separate houses on the same lot in the city of Providence; the defendants’ home is located directly behind the plaintiffs’ dwelling and has no access to the street, except over and across the plaintiffs’ driveway.  Notwithstanding the language in the deed that granted a "right of way over and across" the plaintiffs’ driveway, the trial justice found that the driveway had been used solely for foot traffic.  He granted a permanent injunction preventing defendants from parking in the driveway.  On appeal, the Supreme Court rejected defendants’ contention that by its language, the easement created an unrestricted right to park in the driveway.  Noting that there was no room for a vehicle to pass over the driveway and enter upon defendants’ portion of the lot and no evidence that the easement was intended to include parking privileges, the Supreme Court affirmed the judgment.  Further, the Court rejected defendants’ argument that their due process rights were violated when the trial justice, pursuant to Rule 65 of the Superior Court Rules of Civil Procedure, ordered the consolidation of the hearing for a preliminary injunction with a trial on the merits.

Don Krivitsky d/b/a Coastline Copters v. Town of Westerly, No. 03-509 (June 10, 2004)     

The defendant, the Town of Westerly, appeals from a Superior Court writ of mandamus.  The writ directed the town clerk to issue an amusement license to the plaintiff, Don Krivitsky d/b/a Coastline Copters (Coastline), so that Coastline could provide helicopter rides to the public in the town’s Misquamicut Beach area.  Concluding that the plaintiff failed to properly invoke the jurisdiction of the Superior Court to issue the writ of mandamus, the Supreme Court reversed, vacated the order of mandamus, and remanded for entry of judgment in favor of the town.  The Court held that Coastline was not entitled to a writ of mandamus because it possessed an adequate legal remedy:  namely, the arguable right to appeal any purported licensing disapproval to the town council for a de novo review of the application, as provided for in both the town’s home rule charter and in the code of ordinances.  And if Coastline still did not obtain the license from the town council, Coastline could have petitioned this Court for a writ of certiorari.  Because Coastline did not exhaust these remedies, it was not entitled to a writ of mandamus.  Finally, the Court held that mandamus was also improper because Coastline possessed no clear legal right to the license, and neither the fire chief nor the town manager were under a ministerial duty to approve the license.

David Illas, Jr. et al v. Theodore Przybyla et al, No. 02-396 (June 10, 2004)

The plaintiffs appealed from a decision granting the defendant town’s motion for summary judgment.  The Supreme Court affirmed, holding that the plaintiffs failed to demonstrate that the town had a duty to remove from law enforcement computer systems a withdrawn bench warrant that had issued against one of the plaintiffs.  The Court also held that any purported negligence on the town’s part in failing to verify the identity of the suspect who falsely identified himself as the appealing plaintiff, thus resulting in the issuance of the bench warrant after that plaintiff failed to appear in court as ordered, was barred by the statute of limitations contained in G.L. 1956 § 9-1-25.  The Court noted that the loss-of-society claims of the additional plaintiffs were procedurally defective on appeal because no filing fees were paid on their behalf with the notice of appeal. 

Amos Robinson, Jr. v. John H. Mayo et al, No. 03-534 (June 10, 2004)

The defendant insurer, Trust Insurance Company (Trust) appealed from a Superior Court judgment declaring that a clause within a Massachusetts automobile-insurance policy, geographically limiting coverage to accidents occurring within Massachusetts, violated Rhode Island public policy and, that, therefore, Trust’s attempt to exclude coverage for accidents occurring outside Massachusetts was void and unenforceable.  The insured defendant, John H. Mayo (Mayo), had not purchased additional optional coverage, which would have extended the coverage area to Rhode Island and to other areas outside of Massachusetts.  Through a declaratory judgment, the injured-party plaintiff, Amos Robinson, Jr., sought to reform Mayo’s policy so that it would cover his claim against Mayo arising from an automobile accident that occurred in Rhode Island.  Trust moved for summary judgment, which a motion justice denied.  The court then entered a declaratory judgment against Trust and in favor of the plaintiff, declaring the coverage limitation to be void and in conflict with Rhode Island public policy. 

On appeal, the Supreme Court reversed, holding that the Massachusetts-coverage provision did not conflict with Rhode Island law and public policy.  Although Massachusetts law requires that insurers issuing policies in that state offer optional additional insurance coverage for bodily injury liability occurring outside Massachusetts, Rhode Island law does not require such insurers to provide coverage for accidents occurring in Rhode Island.  In other words, Rhode Island law does not attempt to regulate the coverage of insurance policies issued in other states to vehicle owners or operators who do not register their vehicles here.

Charles H. Mosby, Jr., et al v. William V. Devine, in his Capacity as Chief of the Rhode Island Bureau of Criminal Identification, and Patrick C. Lynch, in his capacity as Rhode Island Attorney General, No. 01-161 (June 10, 2004)

The plaintiffs, Charles H. Mosby (Mosby) and Steven Golotto (Golotto) applied for permits to carry a concealed weapon.  The defendants, the chief of the Rhode Island Bureau of Criminal Identification and the Rhode Island Attorney General (collectively referred to as the department), denied the plaintiffs’ applications and the plaintiffs appealed to the Superior Court.  A Superior Court motion justice concluded that an application to carry a concealed weapon was not a "contested case" because a hearing is neither required under the terms of the permitting statute nor under the Due Process Clause of the Fourteenth Amendment to the United States Constitution.  Because the review of an application to carry a concealed weapon is not a "contested case," plaintiffs’ case was dismissed for lack of subject-matter jurisdiction under the Administrative Procedures Act, G.L. 1956 Chapter 35 of title 42. 

Golotto was dismissed from the appeal for failing to tender the required $150.00 appellate filing fee within the time period required by Rule 4(a) of the Supreme Court Rules of Appellate Procedure.  

The Court concluded that the department’s review of Mosby’s gun permit application was not a "contested case" because it was not required to provide a hearing before rejecting the application.  The department’s exercise of its broad discretion to deny an application to carry a concealed weapon under G.L. 1956 § 11-47-18 did not have an impact upon "the right of the people to keep and bear arms" as described in Article I, section 22 of the Rhode Island Constitution.  Further, § 11-47-18 does not require a hearing on an individual’s application for a gun permit.  Because the decision to grant or deny an application to carry a concealed firearm under § 11-47-18 is not a "contested case," the Superior Court lacks subject-matter jurisdiction to review the rejection of Mosby’s application pursuant to the APA.  The Supreme Court held the only way to obtain judicial review of the department’s rejection of an application filed under § 11-47-18 is to seek a writ of certiorari from the Supreme Court.

Flanders, J., dissenting.  Since 1843, when the Rhode Island Constitution first became effective, the people of this state have enjoyed a constitutionally protected right to keep and bear arms.  This is one of the fundamental rights belonging to the people of this state that our constitution declares to be "essential and unquestionable."  Thus, any regulatory regime that imposes vague and unspecific barriers to arms bearing by law-abiding members of society must not be administered in such an arbitrary and unreasonable way as to deny people their constitutionally protected right to do so for any lawful purpose.  But this is exactly what the Department of Attorney General has done in this case when it denied plaintiffs a license without a hearing, without defining in advance what constituted "a proper showing of need," and without regard to the lawful purposes they articulated for requiring such a license.  For this reason, Justice Flanders would reverse and require the Attorney General to rehear these applications after adopting appropriate rules for doing so under the Administrative Procedures Act.

Robert P. Morey v. Ashbel T. Wall et al, No. 02-723 (June 10, 2004)

The defendant, Department of Corrections (department), brought this appeal arguing that a Superior Court hearing justice erred when he ruled that the plaintiff, Robert P. Morey (Morey), was entitled to receive ten days of "good-time" credits pursuant to G.L. 1956 § 42-56-24 for each month served of a ten-year prison sentence before the sentence was reduced to six years. The Supreme Court held that a writ of mandamus is not the proper procedural vehicle to challenge the calculation of good-time credits.  Although Morey petitioned for a writ of mandamus, the Superior Court treated the case as though it was a request for declaratory and injunctive relief, which was a proper method of challenging the department’s calculation because Morey did not challenge a discretionary aspect of the department’s decision.  The Court also held that the case was not moot because the proper calculation of Morey’s good-time credits could affect his punishment if he violated the terms of his parole or probation.  Nevertheless, the Court reversed the order of the Superior Court because a sentence reduction is effective nunc pro tunc and § 42-56-24 requires the calculation of good-time credits to be commensurate with a reduced prison sentence.        

John Mastrobuono et al v. The Providence Redevelopment Agency of the City of Providence, No. 03-156 (June 10, 2004)

The defendant, the Providence Redevelopment Agency of the City of Providence (the city), appealed from a Superior Court judgment awarding the plaintiffs, John and Carol Mastrobuono (collectively referred to as plaintiffs), $245,750 for the condemnation of their property.  The city contended that the trial justice erred in accepting the plaintiffs’ expert’s valuation of the plaintiffs’ property because the expert’s opinion was speculative, was unsupported by adequate foundational facts and failed to account for developmental costs in transforming the property into its highest and best use as a restaurant.  The city also argued that the trial justice erred by rejecting its experts’ opinions about the value of the subject property.  Finally, the city complained that the trial justice improperly inflated the value of the subject property based on its relative youth compared with that of a comparable sale property.  The Court affirmed the judgment because the trial justice relied on evidence that was supported by a proper factual foundation and the city’s experts failed to provide evidence of comparable sales.   

In re Carlos F. et al, No. 02-718 (June 10, 2004)

The respondent mother appeals from a judgment terminating her paternal rights to five of her six children.  The respondent did not challenge the finding by the trial justice that she was unfit.  Rather, mother argues that the trial justice erred in refusing to consider her mother, the maternal grandmother of the children, as a suitable guardian for these children.  The decision of the trial justice is supported by the evidence.  The respondent bore the burden of proving that her mother was a suitable person to serve as a custodial guardian for her grandchildren.  The respondent failed to meet that burden of proof.  Consequently, the judgment is affirmed.

Alan J. Root et al v. Providence Water Supply Board et al, No. 01-499 (June 10, 2004)

The defendants, the Providence Water Supply Board (water board) and Stephen Napolitano, in his official capacity as the Treasurer of the City of Providence (city), appealed from Superior Court judgments in favor of the plaintiffs, Alan Root, Susan Root, Stephen Moscicki, and Sandra Moscicki, awarding damages as just compensation for the taking of their easements by eminent domain.  The Supreme Court reversed the judgments and remanded the case for entry of judgment for the defendants.  The Court held that G.L. 1956 § 45-50-13(e) authorized the Providence Public Building Authority (PPBA) to exercise the power of eminent domain to take the property over which the plaintiffs’ easements ran and that the PPBA did so in 1991.  Thus, the Court held, the PPBA was solely liable for any damages that the plaintiffs incurred because of that taking.  The Court held that by failing to bring a timely suit against the PPBA pursuant to § 45-50-13(e), and by naming only the water board and the city as the defendants, the plaintiffs sued the wrong parties because these defendants did not take their property without paying them just compensation.  The Court also held that the trial justice failed to consider whether the PPBA was an indispensable party to the action.  The Court ruled that, pursuant to § 45-50-13(e), the plaintiffs possessed an adequate remedy at law for the PPBA’s taking of their easements, which they failed to pursue.  Lastly, the Court held that any contention that the plaintiffs failed to receive personal notice of the taking, pursuant to § 45-50-13(d), had to be asserted against the PPBA, not the water board or the city, because the only entity that § 45-50-13 authorized to take the Joslin Farm and to provide notice to the parties who held an interest in the Joslin Farm property was the PPBA, the actual condemning authority.  Thus, the Court held, awarding damages against the water board and the city constituted reversible error.

Nationwide Mutual Insurance Company v. Donna Viti, No. 03-247 (June 10, 2004)

The defendant, Donna Viti (the defendant), was injured in an accident while riding on her husband’s underinsured motorcycle.  The defendant subsequently attempted to obtain underinsured motorist coverage under her policy with the plaintiff, Nationwide Mutual Insurance Company (plaintiff or Nationwide) on an automobile she owned.  Nationwide refused the defendant coverage, citing the exclusionary clause in the policy.  The clause, known as an "owned but not insured clause," precluded coverage for bodily injury suffered by an insured, such as the defendant, while occupying a motor vehicle that is owned by the defendant or by a relative, and that is not insured by Nationwide.  The plaintiff subsequently filed an action for declaratory judgment in the Superior Court, and then moved for summary judgment, with the defendant filing a counter-motion for partial summary judgment.  The Superior Court granted the plaintiff’s summary judgment motion and denied the defendant’s cross-motion.  The defendant appealed, asserting that the exclusionary clause violated G.L. 1956 § 27-7-2.1, which makes uninsured motorist coverage mandatory in Rhode Island.  The Supreme Court held that, because the Court previously has held that "owned but not insured" exclusionary clauses do not violate § 27-7-2.1, the exclusionary clause was valid and the defendant was not entitled to receive underinsured motorist coverage from Nationwide.  Accordingly, the Court affirmed the judgment of the Superior Court.

Deborah Carroll et al v. Barry Yeaw, Treasurer of the Town of Coventry, et al, No. 02-486 (June 9, 2004)

Deborah Carroll (Ms. Carroll) and John Carroll (collectively plaintiffs) allege that Ms. Carroll was injured after falling on a staircase that was rebuilt pursuant to a building permit on which Kevin Hanna (defendant), a registered contractor, permitted his name, address and registration number to be placed.  The staircase was owned by the Town of Coventry (town) and constructed by a town resident, and the defendant did not supervise or participate in rebuilding the staircase.  Additionally, the town building inspector who initially required the building permit said later that he had made a mistake and that the permit was unnecessary.  The plaintiffs subsequently filed an action in the Superior Court, and the hearing justice granted summary judgment in favor of the defendant.  The plaintiffs appealed, asserting that the defendant owed a duty of care to lawful users of the stairway, such as Ms. Carroll, to ensure that the staircase was properly reconstructed.  The Supreme Court held that because of the remoteness of the connection between the defendant’s actions and Ms. Carroll’s alleged injuries, the defendant did not owe Ms. Carroll a duty of care.  Accordingly, the Court affirmed the judgment of the Superior Court.  

State v. Robert Bluitt, No. 02-181 (June 7, 2004)

The defendant, Robert Bluitt, was convicted of one count of first-degree sexual assault and one count of second-degree sexual assault against his biological granddaughter.  On the eve of trial, the defendant discharged his privately retained attorney, but maintained that he was not representing himself at trial even though the trial justice told him that he was.  Concluding that the defendant did not knowingly and intelligently waive his right to counsel, the Supreme Court reversed, vacated the convictions, and remanded for a new trial.  Although the defendant conceded that his waiver was voluntary, the Court held that nothing in the record showed that the defendant’s waiver was knowing and intelligent.  The record did not reflect that the defendant appreciated the burdens, dangers, and downside risks of representing himself at trial.  And the trial justice rebuffed the prosecution’s suggestion to ask the defendant "some questions as to his ability concerning representing himself."  Instead, the trial justice treated the defendant’s discharge of his attorney as a request for a continuance and did not advise the defendant that this discharge also constituted a waiver of his right to counsel.  Because the record does not show that the defendant was aware of the dangers and disadvantages of representing himself at trial, his waiver of his right to counsel was not knowing and intelligent.  Thus, the Court vacated the defendant’s convictions and remanded the case for a new trial.

Labor Ready Northeast, Inc. v. Marilyn Shannon McConaghy, in her capacity as Director of the Department of Business Regulation, No. 02-698 (June 4, 2004)

Reversing and quashing a Superior Court judgment to the contrary, the Supreme Court held that the Department of Business Regulation (DBR) did not exceed its authority when it decided that the defendant employer engaged in an unlicensed check-cashing business in violation of G.L. 1956 § 19-14-2.  The defendant paid some of its temporary day laborers by issuing "vouchers" to them that contained access codes.  The employees could enter these access codes into so-called cash dispensing machines to obtain cash for their net wages, less a fee paid to the employer for providing this service.  The DBR ruled that the defendant’s "vouchers" constituted checks under § 19-14-1 because they qualified as an "other instrument for the transmission or payment of money."  The Superior Court disagreed and interpreted § 19-14-1’s use of the term "instrument" as applying only to "negotiable instruments," as defined by Article 3 of the Uniform Commercial Code.

The Supreme Court reversed, holding that the Superior Court failed to accord the requisite deference to DBR’s reasonable interpretation of the undefined statutory phrase "other instrument for the transmission or payment of money" in its own regulatory statute.  The Court concluded that the DBR’s interpretation of the word "instrument"as used in the check-cashing statute to include any written document that defines legal rights, duties, entitlements, or liabilities was not unreasonable.  The defendant’s vouchers qualified as instruments under this definition because they provided evidence of and defined the workers’ right to obtain a cash payment for their wages.  The defendant’s vouchers, therefore, constituted checks for purposes of § 19-14-1.

The Supreme Court also held that the DBR acted within its authority when it decided that the defendant employer improperly engaged in an unlicensed check-cashing business in violation of § 19-14-2 because its cash dispensing machines provided currency for checks, less a fee charged for providing this service.  The Court rejected the defendant’s contention that, for the statute to apply to its voucher system, the word "for" required a strict physical presentment or exchange of the vouchers "for" the currency before the employee could obtain the cash.  Instead, the Court concluded that both the statute’s spare and undefined general language and the doctrine of noscitur a sociis militated against DBR’s placing a narrow construction on the phrase "providing currency for checks," reasoning that "for" in this context meant simply "as regards," "in respect to," or "in view of." 

Jose Mendez v. Jose Brites et al, No. 01-230 (June 4, 2004)

This is an automobile-accident case involving a Massachusetts insurance policy that did not provide coverage for bodily injury claims arising out of accidents occurring in Rhode Island.  The injured motorist, Jose Mendez (Mendez) and the insured driver, Jose Brites (Brites) appealed from a Superior Court grant of summary judgment in favor of the insurer, Metropolitan Property and Casualty Insurance Company (Metropolitan).  Mendez, a Rhode Island resident, and Brites, a Massachusetts resident, were involved in a motor-vehicle accident in Providence, Rhode Island.  At the time of this accident, Metropolitan insured Brites and his automobile with an automobile-liability-insurance policy that, consistent with Massachusetts law, provided liability insurance coverage only for bodily injuries arising out accidents that occurred in Massachusetts.  Seeking to recover for his accident-related injuries, Mendez filed a declaratory-judgment action in Superior Court against Brites and Metropolitan, requesting the court to reform the language in Brites’s Metropolitan insurance policy, so that it would provide liability coverage for Mendez’s claims against Brites.  Brites also filed a cross complaint against Metropolitan, seeking a declaratory judgment that would reform his Metropolitan insurance policy in this same manner.  

The Supreme Court held that Rhode Island law does not directly conflict with the Massachusetts law that requires insurers issuing polices to residents of that state to offer only optional liability coverage for bodily injuries to others resulting from accidents occurring outside of Massachusetts. 

The Court further held that the Rhode Island Motor Vehicle Reparations Act, title 31, chapter 47, does not attempt to regulate the terms of insurance policies issued in other states to vehicle owners or operators who do not register their vehicles in Rhode Island.  Thus, the Court held, the state does not require an insurer such as Metropolitan to comply with the mandatory insurance provisions of G.L. 1956 § 31-47-2 when it issues an automobile-liability policy in Massachusetts to a Massachusetts resident who opts not register his vehicle in Rhode Island.  Additionally, the Court held that the Massachusetts-only coverage limitation in the Brites policy did not conflict with current Rhode Island public policy.  Although the General Assembly has chosen to subject out-of-state owners who permit their motor vehicles to be operated on the public highways of this state, without proper insurance, to revocation of their driving privileges, it does not require that the out-of-state insurers of such vehicle owners must issue the type of insurance required under § 31-47-2.

The Court also held that the General Assembly chose to protect the citizens of Rhode Island from uninsured or underinsured motorists, not by reforming the provisions of out-of-state insurance policies to provide such additional coverage whenever their insureds drive here, but by requiring insurers who issue automobile liability policies in this state to offer uninsured or underinsured motorist coverage to motorists who wish to register their vehicles in Rhode Island and by requiring motorists who drive here to obtain the requisite insurance for their vehicle.

Lisa M. Elgar v. National Continental/Progressive Insurance Company et al, No. 03-554 (June 4, 2004)    AMENDED

The plaintiff, a taxicab driver, sought uninsured motorist benefits from the insurer of the taxi she was operating when she was physically assaulted and seriously injured by two passengers.  The plaintiff argued that because the passengers were directing her where to drive they were the de facto drivers of the taxi and she was therefore entitled to uninsured motorist coverage.  The trial justice found that the assailants were passengers in the taxi and that no uninsured vehicle was involved in the incident that gave rise to the plaintiff’s injuries.  The Supreme Court agreed, citing Nationwide Mutual Insurance Co. v. Steele, 747 A.2d 1013 (R.I. 2003) (mem.), in which the Court cautioned that there must be reasonable limitations on the construction of the uninsured motorist insurance statute, G.L. 1956 § 27-7-2.1, to protect against groundless claims.  These limitations include the requirement that the claimant present credible evidence that the injuries were caused by the operation or ownership of an uninsured vehicle.  There must be a nexus between an uninsured vehicle and the injuries.  The judgment is affirmed.

Paul M. Clift et al v. Vose Hardware, Inc. et al, No. 03-389 (May 28, 2004)

In this products liability case, the Supreme Court affirmed the Superior Court’s grant of the defendants’ motion for summary judgment.  The Court held that the plaintiffs failed to adduce any evidence showing that the defendants either manufactured, distributed, designed, or sold the bungee-cord product in question.  The Court noted that the affidavit attached to the plaintiffs’ opposition to summary judgment was conclusory and did not create any genuine dispute of material fact.  The Court also rejected the plaintiffs’ contention that the defendants erred by not attaching supporting evidence to their summary judgment motions.  Pointing to the plain language of Rule 56(b) of the Superior Court Rules of Civil Procedure, the Court held that the defendants properly moved for summary judgment "without supporting affidavits."

State v. Anthony J. DiChristofaro, No. 03-416 (May 27, 2004)

The defendant’s appeal from a judgment of conviction for two counts of assault with a deadly weapon and one count of resisting arrest is denied and the conviction is affirmed.  The Supreme Court rejected defendant’s contention that the trial justice erred in denying his motion for a new trial.  The trial justice performed an appropriate review of the evidence, passed upon the credibility of the witnesses, and concluded that the state’s witnesses were credible and that the evidence was sufficient to support the verdicts.  Further, the trial justice properly refused to instruct the jury on self-defense.  There is no evidence in this record that could support an inference that the victims in this case were the aggressors.  Consequently, the trial justice did not err in declining a self-defense instruction.

State v. Norman Laurence, No. 01-46 (May 20, 2004)

The defendant appealed from his convictions for first-degree murder, conspiracy to commit first-degree murder, and breaking and entering, arguing that his Fifth Amendment right to due process and his Sixth Amendment right to the effective assistance of counsel had been violated.  After rejecting the services of three court-appointed attorneys, as well as one standby counsel, during a series of pre-trial hearings, the defendant proceeded to trial pro se.  He claimed that an attorney, whom the trial justice found had had an attorney/client relationship with the defendant at one time, colluded with the state by facilitating an immunity deal on behalf of another client, who in turn provided information leading to the defendant’s arrest and indictment.  The Supreme Court determined that, under the totality of the circumstances, the prosecutorial conduct was not of an outrageous nature as to be constitutionally violative because it was the client, not the attorney, who provided the information leading to the defendant’s arrest.  Next, the defendant argued that the trial justice failed to afford him the assistance of constitutionally effective counsel, thereby impermissibly forcing him to represent himself.  The Court held, however, again under the totality of the circumstances, that the defendant voluntarily, knowingly, and intelligently waived his right to counsel by refusing, without a showing of good cause, to accept the services of several competent, court-appointed attorneys.  Thus, the Court denied the defendant’s appeal.

State v. Marcelino Collazo Gomez, No. 02-274 (May 17, 2004)   Corrected

The defendant, Marcelino Collazo Gomez (Gomez or defendant), appeals from a pair of Superior Court jury trials in which the defendant first was found guilty of conspiracy to commit murder and then was found guilty of first-degree murder. The conspiracy conviction from the first trial resulted in a ten-year sentence with six years to serve in the Adult Correctional Institutions (ACI), and the first-degree murder conviction from the second trial resulted in a mandatory life sentence in the ACI. The appeals from both trials were consolidated.

On appeal from the first trial, Gomez asserted that the trial justice erred in denying his motion for a new trial. He also challenged an evidentiary ruling that precluded him from impeaching a state’s witness by exploring the underlying circumstances of the witness’s previous convictions. He also argued that the trial justice erred by giving the jury a "flight" instruction. Gomez also appeals the trial justice’s ruling that allowed testimony into evidence as an adoptive admission during the second trial.

The Supreme Court held that the trial justice did not err in denying the defendant’s motion for a new trial because the trial justice applied the right standard in weighing the evidence and found that the evidence was sufficient to support the conspiracy conviction. Next, the Court held that the trial justice properly excluded any factual inquiry into the witness’s previous crimes because the Rhode Island Rules of Evidence preclude such an inquiry. The Court also held that the flight instruction was proper because giving the jury the instruction was supported by the facts and adequately apprised the jury of the applicable law. Finally, the trial justice did not err in allowing in witness testimony as an adoptive admission because the objection to the testimony was not properly preserved, and the defendant had an opportunity to deny or reply to the statement that the witness addressed to him.

Miliana M. Nicolae, M.D. v. Miriam Hospital, No. 03-516 (May 13, 2004)

The plaintiff, Miliana Nicolae, M.D. appealed from the entry of summary judgment in favor of the defendant, Miriam Hospital (hospital), pursuant to which the Superior Court dismissed her claims alleging a potpourri of unlawful employment and discriminatory practices.  The Supreme Court affirmed the trial court’s summary judgment in favor of the hospital.  The Court held that the plaintiff waived the right to challenge the propriety of the documents that the hospital submitted to support its summary-judgment motion because she failed to timely raise any such evidentiary objection to the motion justice.  The Court also held that the motion justice did not abuse his discretion in denying the plaintiff’s unsubstantiated oral request via an ex parte telephone call to the motion justice seeking a new hearing date virtually on the eve of that long-scheduled proceeding.  Lastly, the Court held that relying only on unsubstantiated accusations and conclusory assertions without presenting any competent evidence that the nondiscriminatory reasons the hospital gave for requesting her resignation were pretextual, the plaintiff did not meet her burden, as the nonmoving party, to show that a genuine issue of a material fact existed.  

Town of Richmond v.  Wawaloam Reservation, Inc., et al, No. 03-69 (May 10, 2004)

In this consolidated appeal, the Supreme Court affirmed the Superior Court’s issuance of injunctive relief, ordering defendants to correct and abate sundry zoning and building-code violations at defendants’ campground.  Before it filed these enforcement actions, the Town of Richmond (town) had obtained favorable decisions from the local zoning board of review and from the state building-code board concerning the existence of these violations.  The defendants neither appealed these decisions nor took any action to correct or abate the zoning and building-code violations.  The town then brought these actions requesting the Superior Court to enjoin defendants to correct the previously adjudicated violations of the zoning ordinance and state building code.

The Supreme Court held that the doctrine of res judicata barred the defendants from relitigating any claims or defenses relating to the existence of zoning or building-code violations that they raised or could have raised in the previous administrative proceedings.  Noting that the parties and issues were identical in both proceedings and that the unappealed administrative decisions were final judgments for res judicata purposes, the Court held that the defendants were precluded from reasserting any defenses that they raised or could have raised in the previous administrative actions. 

With respect to the issues not governed by the previous administrative decisions, the Court ruled that the trial justice properly found that the defendants needed to obtain special-use permits before enlarging their legal nonconforming campground use.  Thus, the Court affirmed the injunction ordering the defendants to correct or abate the new roadway that they had constructed without first obtaining a special-use permit.  In addition, the Court held that the Superior Court did not err in permitting the town’s Deputy Zoning Enforcement Officer and Alternate Building Official to testify in both proceedings because the defendants did not challenge his authority to testify at trial and could not point to any statute, rule, or other legal basis that would have barred his testimony.

Travelers Property & Casualty Corporation v. Old Republic Insurance Company, No. 02-442 (May 10, 2004)

Travelers Property and Casualty Company (Travelers) appealed from a Superior Court grant of summary judgment in favor of defendant, Old Republic Insurance Company (Old Republic), on a complaint for declaratory judgment. Travelers contended that the hearing justice erred in failing to rule that Old Republic was liable for prejudgment interest awarded on a previous jury verdict. The jury verdict resulted from a trial concerning an automobile accident in which Travelers’ and Old Republic’s insureds were responsible for the plaintiff’s injuries. After the verdict in that case was entered, the clerk of the court attached prejudgment interest according to G.L. 1956 § 9-21-10. Travelers appealed from that jury verdict. However, all parties to that suit settled all claims before the Supreme Court heard Travelers’ appeal. Travelers argued that, despite the settlement, Old Republic was still liable for the prejudgment interest on the verdict because its policy provided "primary" insurance in the underlying case.

The Supreme Court held that the issue of whether Old Republic or Travelers was the primary insurer on the policies implicated in the underlying case was irrelevant. The Supreme Court affirmed the summary judgment because final judgment was not entered in the underlying case. A final resolution of Travelers’ appeal was precluded when the parties settled that case. Therefore, the question of who was liable for prejudgment interest did not apply to the controversy between Travelers and Old Republic.

 

Thomas S. Michalopoulos v. C & D Restaurant, Inc., d/b/a "Eddie and Conrad's Fine Foods.", No. 02-460 (May 6, 2004)

The defendant’s counsel appealed from a Superior Court order imposing a monetary sanction against him, pursuant to Rule 11, following an evidentiary hearing on defendant’s motion for a new trial based on judicial misconduct.  The defendant alleged the trial justice had made improper and prejudicial nonverbal gestures during its counsel’s closing argument, thereby compromising the jury.  After the trial justice referred the matter to the hearing justice, an evidentiary hearing was scheduled and the defendant’s counsel attempted to withdraw the issue.  Characterizing the allegations as serious, the hearing justice rejected this request, rescheduled the hearing, and informed that Rule 11 sanctions would be considered if the evidence did not support the defendant’s argument.  The hearing justice denied the defendant’s motion for a new trial, determined that the defendant’s counsel failed in his duty to present a claim in compliance with the mandates of Rule 11, and imposed a sanction of $1,000.  The Supreme Court affirmed this sanction, noting that there was no record evidence that the alleged conduct undermined the jury’s impartiality, pursuant to Riccardi v. Rivers, 688 A.2d 302 (R.I. 1997).  Furthermore, the Court rejected defense counsel’s due process argument, holding that the hearing justice’s letter advising of possible Rule 11 sanctions provided the required notice.

Harvard Pilgrim Health Care of New England, Inc. v. Thomas Rossi, in his capacity as Tax Assessor of the City of Providence, No. 03-170 (May 6, 2004)

The City of Providence (the city) appealed a judgment awarding Harvard Pilgrim Health Care (Harvard Pilgrim) the sum of $484,907.46, plus $53,580.47 in interest and costs for the overassessment of taxes on its ratable, tangible personal property for tax year 2000.  

The city first argued that the annual account filed by Harvard Pilgrim on January 31, 2000, was insufficient under G.L. 1956 §§ 44-5-15 and 44-5-16 to vest the Superior Court with jurisdiction.  After reviewing the account, the Court concluded that Harvard Pilgrim did file a "true and exact account * * * describing and specifying the value" of all its ratable personal estate sufficient to invoke the statutory appeal process to challenge the city’s assessment. Harvard Pilgrim timely provided an itemized list of nearly nine thousand items of ratable personal property, listing acquisition cost, in-service date, depreciation, and net book value of each item.  

Additionally, the city argued that the admission of plaintiff’s exhibit No. 15 was error.  Through the testimony of Jeffrey Lieberman, the project director in charge of managing the liquidation of Harvard Pilgrim, Harvard Pilgrim introduced into evidence an "Application for Abatement of Property Tax for fiscal year 2000" (exhibit No. 15).  The city asserted that Lieberman had neither personal knowledge of the source of the figures set forth in exhibit No. 15, nor expertise upon which any of the calculations of value could be predicated.  After reviewing the record, the Court concluded that the city raised no objection at the trial level to Lieberman’s testimony and therefore waived this argument.  This Court will not review issues that are raised for the first time on appeal.

The city further argued that there was no competent expert evidence to establish that Harvard Pilgrim’s appraisal of the fair market value of its tangible personal property as of December 31, 1999, met industry standards.  The Court concluded that the city did not properly preserve this issue for appellate review as they did not enter an objection at the time of Lieberman’s testimony.  

The Court therefore affirmed the ruling of the trial justice and remanded the record to the Superior Court. 

Ruth Rivera individually and as guardian of Jazmine Principe; Nicole Rivera by and through her mother and natural guardian Toni Rivera, No. 03-460 (May 3, 2004)

The plaintiff, Nicole Rivera, by and through her mother and natural guardian, Toni Rivera, appealed from a Superior Court order denying her motion to vacate a settlement and dismissal stipulation due to mutual mistake by the parties in the formation of the settlement release. 

On September 21, 2001, plaintiff Nicole Rivera was involved in an automobile accident with defendant, Danielle Gagnon. After plaintiff filed a personal injury action against defendant, the parties engaged in settlement discussions, which ultimately resulted in plaintiff entering into a settlement agreement with defendant’s insurance company, New London County Insurance Company (New London). The agreement stated that for consideration of $3,000, plaintiff released and discharged New London  and defendant from any claims or demands related to the auto accident.  Additionally, plaintiff signed two more agreements agreeing to indemnify and hold harmless defendant and New London. 

In an affidavit, plaintiff’s counsel asserted that there was a separate verbal agreement with New London  that medical bills would be paid separately through subrogation.  New London’s claim manager asserted in her affidavit that there was no agreement that New London would pay the medical bills.

 Nowhere in the written agreements did plaintiff memorialize her alleged verbal agreement with New London.  The language was clear and unambiguous and susceptible only to one interpretation.  Therefore, the Court afforded the language of the releases its plain and ordinary meaning without reference to extrinsic evidence.  The Court concluded that plaintiff made a unilateral mistake by not memorializing the terms of the agreement as she understood them.  Mutual mistake was not adequately demonstrated. 

Counsel for the plaintiff additionally asserted that the motion justice did not allow him a sufficient opportunity to present testimony in order to prove mutual mistake.  The parties previously had argued their respective positions and had been given an opportunity to submit memoranda.  The hearing justice opined that the affidavits could not be any clearer, and saw no basis for having an evidentiary hearing.  The Court concurred with her assessment, and detected no abuse of her discretion.

Accordingly, the Court affirmed the judgment of the Superior Court. 

State of Rhode Island et al v. John J. Partington et al, No. 03-142 (May 3, 2003)

The defendants, Thomas A. Phelps (Phelps) and the Town of East Greenwich (East Greenwich) appealed from a Superior Court grant of summary judgment in favor of the State of Rhode Island and Anthony J. Silva. Phelps attended the Rhode Island Municipal Police Training Academy in the hope of receiving permanent employment as a police officer for East Greenwich . However, he failed the swimming test, which precluded his graduating from the municipal academy. The Providence Police Training Academy did not require its recruits to pass a swimming test, so East Greenwich struck an agreement with the City of Providence in which Phelps could attend the Providence academy, provided certain conditions were met. East Greenwich also informed the Police Officers’ Commission on Standards and Training (the commission) of the agreement for Phelps’s training.

The commission opposed the agreement and sought a declaratory judgment that training at the municipal academy is mandatory for all officers except those for hire by Providence , and that all agreements for training at facilities other than the municipal academy must get commission approval before the agreements are executed. The Superior Court granted summary judgment on the commission’s declaratory judgment action. The Supreme Court affirmed the Superior Court judgment because the plain language of G.L. 1956 §§ 42-28.2‑6 and 42‑28.2‑10(f) makes attendance at the municipal academy mandatory for all potential officers, except those for hire by Providence, and the language reveals that the commission has sole authority to allow arrangements for training at any academy other than the municipal academy.

Christopher M. Duffy v. Kathleen E. Dwyer, No. 03-160 (April 29, 2004)

The plaintiff, Christopher M. Duffy (plaintiff), appealed from a Superior Court summary judgment in favor of the defendant, Kathleen E. Dwyer (defendant).  The plaintiff brought this action against the defendant pursuant to the Uniform Fraudulent Transfer Act, G.L. 1956 chapter 16 of title 6.   Without reaching the merits, the motion justice concluded that because the plaintiff filed his claim five and a half years after the allegedly fraudulent transfer was completed, it was barred by the statute of limitations.  The Supreme Court affirmed, holding that the transfer was valid and thus caused the four-year statute of limitations to begin running.  In addition, the plaintiff’s argument that his claim falls within the discovery exception to the statute of limitations failed because he reasonably could have discovered the transfer at the time the deed was recorded. 

David R. Fenwick v. Claire Oberman, No. 02-719 (April 29, 2004)

The plaintiff, David R. Fenwick (plaintiff), appealed from a Superior Court judgment on a verdict awarding him $1 in damages for a battery suffered at the hands of his former supervisor, Claire Oberman (defendant).  The plaintiff argued that the trial justice erred by refusing to instruct the jury on punitive damages.  He also argued that the trial justice erred by excluding evidence of past animosity between him and the defendant for lack of relevance.  The Supreme Court held that the battery was not sufficiently malicious to justify punitive damages, regardless of the bad relationship between the parties.  The judgment of the Superior Court was affirmed.  

State v. Anibal Santiago, No. 03-335 (April 22, 2003)

The defendant is before the Supreme Court on appeal from the denial of a motion to dismiss this criminal information on the grounds of collateral estoppel. After a Superior Court violation hearing the hearing justice found that defendant was not in violation of the terms and conditions of his probation.  This Court reversed that determination in State v. Santiago, 799 A.2d 285 (R.I. 2002). The defendant subsequently admitted violation but sought dismissal of the charges that formed the basis of the violation on the ground of collateral estoppel. We deny and dismiss the appeal.  Where a decision of the trial court is vacated on appeal there has not been a final and valid judgment on the merits.  Consequently, collateral estoppel is not available.  

State v. Robert Kittell, No. 03-137 (April 22, 2004)

Following a jury trial, Robert Kittell (defendant) was convicted of one count of felony assault.  The defendant appealed, claiming the Superior Court trial justice committed reversible errors in his instructions to the jury, and that the trial justice improperly denied his motion for a new trial.  The Supreme Court held that, when considered as a whole, the jury instructions properly conveyed to a jury of ordinarily intelligent lay persons the correct law of self-defense and did not imply, as the defendant argued, that the burden shifted to the defendant to prove his right to invoke self-defense.  In addition, the trial justice did not improperly single out the defendant’s testimony when instructing the jury on how to assess a witness’s credibility.  Finally, the Supreme Court affirmed the trial justice’s refusal to order a new trial, holding the trial justice was not clearly wrong and did not overlook or misconceive material and relevant evidence when he denied the defendant’s motion for a new trial. 

A.F. Lusi Construction, Inc. v. Peerless Insurance Company, No. 02-553 (April 22, 2004)

This is an appeal by A.F. Lusi Construction, Inc. (Lusi), a general contrac to r on a construction project with the State of Rhode Island (state), from a Superior Court final judgment in favor of Peerless Insurance Company (Peerless).  An employee of Pasquazzi Brothers, Inc. (Pasquazzi), a subcontrac to r on the project, was injured while working on the project and sued Lusi for negligence.  Lusi filed a Superior Court declara to ry judgment against Peerless, the insurer for Pasquazzi, seeking a defense and indemnification with respect to the employee’s claim.  The Supreme Court held that the relevant contract language did not evidence a clear intent by Peerless and Pasquazzi to designate Lusi as an additional insured under the terms of the Peerless insurance policy with respect to claims alleging Lusi’s own negligence.  The Court held that the incorporation and flow-down provisions of the contracts at issue failed to require Pasquazzi to add Lusi as an additional insured to its Peerless insurance policy for this type of claim.  The Court also ruled that Lusi failed to procure an "appropriate agreement" from Pasquazzi to add Lusi as an additional insured under the Peerless policy to cover negligence claims against Lusi.  In addition, the Supreme Court decided that Lusi failed to provide evidence of any contract provision from which the Court could discern to what extent the primary contract required Lusi to procure such insurance from Pasquazzi.  Lastly, the Court held that the limiting language of the flow-down provision in the primary contract between Lusi and the state suggested that Lusi was not required to obtain Pasquazzi’s agreement to procure insurance that would indemnify Lusi for its own negligence.  The Court did not need to decide the effect of G.L. 1956 § 6-34-1 on this type of insurance-procurement agreement because Lusi failed to obtain the "appropriate agreement" from Pasquazzi pursuant to the contract terms, and failed to provide adequate evidence from which the Court could determine exactly what kind of insurance Lusi was required to obtain from Pasquazzi. 

Keystone Elevator Company, Inc. v. Johnson & Wales University et al, No. 02-501 (April 15, 2004)

The defendants, Johnson & Wales University (University) and Agostini Construction Company, Inc. (Agostini), appealed from a Superior Court award of $12,383 in attorneys’ fees to the plaintiff, Keystone Elevator Company, Inc. (Keystone), as the prevailing party in its mechanics’ lien petition.  Defendants claimed several errors on appeal. 

First, defendants appealed the denial of their motion for reconsideration, wherein they objected to the procedural means Keystone utilized to request attorneys’ fees.  After reviewing the record, the Court concluded that defendants were on sufficient notice that the issue of attorneys’ fees was under consideration by the trial justice and that they had an opportunity to object. The Court therefore affirmed the judgment of the Superior Court.

Section 34-28-19 of the mechanics’ lien statute permits the trial court to award attorney’s fees to the prevailing party in a mechanics’ lien action.  The defendants next argued that the trial court abused its discretion by failing to give the term "prevailing party" its plain and ordinary meaning.  The defendants maintained that set-offs, credits, and settlement offers must be considered in the determination of the prevailing party, and that it is inequitable to find that a party "prevails" and award legal fees when the party recovers an insignificant portion of its claim.  

The Court concluded that "* * * the fairest test to determine who is the prevailing party is to allow the trial judge to determine from the record which party has in fact prevailed on the significant issues tried before the court." Prosperi v. Code, Inc., 626 So. 2d 1360, 1363 (Fla. 1993). Such a standard places the determination of which party is the "prevailing party" precisely where it ought to be, within the sound discretion of the trial justice. The Court concluded that it was clear that the trial justice considered both the setoff and credit in determining that Keystone was the prevailing party. Moreover, the Court discerned no legislative intent in the Rhode Island mechanics’ lien statute indicating that settlement offers should be considered.  In summary, the Court was satisfied that the award of attorneys’ fees in this case was an appropriate exercise of the trial justice’s discretion.

The defendants also asserted that the mechanics’ lien statute requires the filing of a notice of lis pendens even when no litigation is pending affecting the title to real property.  Keystone originally filed a notice of intention in the land evidence records relative to a parcel of property owned by the University. Thereafter, the University filed a petition to discharge lien pursuant to § 34-28-17, whereby a bond replaced the real property as security on the claim.  The defendants maintained that Keystone’s failure to file a lis pendens was fatal to their mechanics’ lien claim, and therefore, an attorneys’ fee award pursuant to the mechanics’ lien statute was not available.  

In interpreting the statute, it is well settled law that the Court will not construe a statute to reach an absurd result. In this case, the Court noted that it is axiomatic that the University filed the bond petition in order to remove the lien from its property, yet defendants then insisted that a lis pendens also must be filed against the property even though Keystone no longer had any claim to the property.   The Court therefore affirmed the trial justice’s denial of the defendants’ motion to dismiss the lien claim for Keystone’s failure to file a notice of lis pendens

Carri Oliveira, Individually and as Administratrix of the Estate of Djonen Oliveira and Jose Oliveira v. Lisa J. Jacobson, M.D., et al, No. 02-581 (April 15, 2004)

The defendants, Lisa J. Jacobson, M.D. and Women and Infants Hospital, appeal from a jury verdict of liability for the wrongful death of Djonen Oliveira, a newborn son born to the plaintiffs, Carri Oliveira and Jose Oliveira.  The Supreme Court affirmed the judgment. The trial justice appropriately limited the jury’s consideration to the named defendants and instructed the jurors not to consider the conduct of persons not before the Court. The defendants failed to present any evidence relative to the treatment of other health care professionals and the trial justice correctly instructed the jury on this issue.  Further, there was evidence of the infant’s pain and suffering sufficient to warrant consideration of a damage award for pain and suffering.  Finally, the award of damages for economic loss was supported by the evidence.  Contrary to the argument of defense counsel, the plaintiffs’ expert witnesses testified that if the child had been timely delivered by cesarean section, he would be alive and well today.  Consequently, the jury was entitled to award damages for the child’s loss of earning capacity. 

Cranston Print Works Company v. Paul Pothier et al, No. 01-470 (April 14, 2004)

The defendants, Koyu Nikoloff and his wholly owned corporation, International Brokerage & Consulting, Inc. (collectively, "Nikoloff"), appealed from a Superior Court judgment that granted the plaintiff, Cranston Print Works Company (Cranston Print), among other relief, a permanent injunction preventing Nikoloff from working for or consulting with the co-defendant, Bolger & O’Hearn, Inc. (Bolger). 

The Supreme Court reversed the Superior Court decision, vacated the judgment and order issuing injunctive and declaratory relief, and remanded this case for further proceedings consistent with its opinion.  Previously, to resolve another lawsuit, Cranston Print, Nikoloff’s former employer, had entered into a settlement agreement with Nikoloff whereby he agreed not to compete with Cranston Print with respect to certain prohibited product lines and areas.  The hearing justice in this case interpreted this settlement agreement as precluding Nikoloff from working for any chemical supplier that provided services or products in connection with any of these prohibited product lines or areas, regardless of whether Nikoloff’s work for such a chemical supplier involved any such product lines or whether it fell within other product areas and activities expressly permitted by the agreement.  The Supreme Court held that this interpretation was clearly wrong and remanded the case to the Superior Court to determine whether Nikoloff’s work for Bolger actually involved any of the activities that the settlement agreement expressly allowed Nikoloff to engage in while he was consulting for other companies. 

In reaching this decision, the Supreme Court rejected Cranston Print’s mootness argument (namely, that its separate settlement with Bolger barred Nikoloff from working there even if he prevailed on this appeal), reasoning that the Superior Court’s declaratory judgment concerning the enforceability of certain noncompete provisions in the settlement agreement affected Nikoloff’s ability to work for other prospective employers besides Bolger.  The Court also held that reasonable noncompete covenants contained in a settlement agreement were enforceable, but it remanded this case for the Superior Court to assess the reasonableness of these particular noncompete provisions.  In particular, the Supreme Court cautioned that even though unlimited restraints on the geographic scope and duration of the various covenants not to compete were not per se unreasonable, the breadth and duration of such restraints should be no greater than necessary to protect Cranston Print’s legitimate business interests.

State v. Norberto Bolarinho, No. 02-690 (April 14, 2004)

 

In re Estate of Milton Paroda, No. 02-675 (April 12, 2004)

The appellant, Barbara Kusnierz, appealed from a Superior Court order denying her appeal from an order of the Central Falls Probate Court. An earlier order of that Probate Court diminished Kusnierz’s responsibilities and duties as co-administratrix of the estate of Milton Paroda.  Paroda died intestate and was survived by four heirs at law, including his niece Kusnierz. The other heirs at law wanted Walter Kudzma, Paroda’s brother-in-law, to be sole administrator. The Probate Court initially appointed Kusnierz and Kudzma to share administrative duties for the estate. However, the Probate Court later diminished Kusnierz’s duties when Kudzma and the other heirs at law petitioned to remove Kusnierz as co-administrator accusing her of wasting the estate and obstructing the distribution of estate assets due to her incompetence. The Superior Court affirmed the Probate Court’s order when the parties appeared there for a scheduling conference. The Supreme Court reversed the Superior Court and remanded the case for a de novo hearing on the issue of Kusnierz’s competence to co-administer the estate pursuant to G.L. 1956 § 33-23-1(d).

John J. Cullen, et al v. Town Council of the Town of Lincoln, No. 01-212 (April 12, 2004)

The Supreme Court granted a writ of certiorari to review a decision of the Town Council of the Town of Lincoln (council) denying the petitioners’, John J. Cullen and Roland Montigny, application to tie into the sewer system of the Town of Lincoln.  Because the council failed to accompany its decision with adequate factual findings and legal conclusions, however, the Court was forced to remand the record to the council with instructions to make such findings and conclusions.  

State v. Lloyd Bulgin, No. 02-227 (April 9, 2004)

The defendant appealed from his conviction for possessing marijuana and operating a motor vehicle while possessing marijuana, arguing that the trial justice should have granted his judgment of acquittal because the evidence was legally insufficient to establish possession.  The Supreme Court affirmed the judgment.  Viewing the evidence in the light most favorable to the state, giving full credibility to the state’s witnesses, and drawing therefrom all reasonable inferences consistent with guilt, the Court held that the defendant constructively possessed the drug.  The Court looked at the totality of the circumstances to determine constructive possession, noting specifically that the defendant continued driving for a while after the arresting officer activated his cruiser’s overhead lights, the officer identified a strong marijuana odor when he approached the vehicle, and the contraband and rolling papers were found in plain view and within reach of the defendant.

Lauren E. Griggs, et al v. Estate of Glenn E. Griggs, No. 02-611 (April 9, 2004)

This case originated in the Probate Court where the petitioners filed a petition for guardianship of their father, Glenn Griggs (Mr. Griggs).  The Probate Court denied the petition and the Superior Court dismissed the petitioners’ appeal because they failed to include a decision-making assessment tool completed by Mr. Griggs’s treating physician with their petition.  The Supreme Court affirmed the Superior Court’s decision but on different grounds.  The Supreme Court held that because the petitioners failed to submit a substantial portion of the Probate Court record relevant to the appeal to the Superior Court within the statutory deadline or permitted extension, the appeal was not perfected and, thus was not properly before the Superior Court.  Because this appeal was dismissed without reaching the merits of the controversy, the Supreme Court did not consider whether a valid petition for appointment of guardianship must be accompanied by a decision-making assessment tool completed by the proposed ward’s treating physician.

Jeffrey L. Vigneaux v. Lorraine T. Carriere, No. 03-421 (April 8, 2004)

This is a claim for specific performance in which the parties entered into a written contract for the sale of property that was drafted by the plaintiff.  After the defendant notified plaintiff that she wished to list her home with a real estate broker for a higher price than the amount agreed to by the parties, plaintiff filed suit for specific performance.  The trial justice, sitting without a jury, found for plaintiff and held that the agreement, although drafted by plaintiff, was sufficient to satisfy the Statute of Frauds, G.L. § 9-1-4 and that plaintiff was at all times a ready and willing buyer, able to perform the contract according to its terms.  The Supreme Court affirmed the trial justice and rejected defendant’s claim that the agreement lacked certain essential terms.  Although the agreement did not contain a date for performance of the contract, in such instances a contract for the sale of land is to be performed within a reasonable time.  The judgment of the Superior Court is affirmed.

Paula A. Beaton v. Philip Malouin, No. 03-45 (April 8, 2004)

During the trial of this personal injury claim, the trial justice erroneously excluded the testimony of plaintiff’s expert witness.  Pursuant to Rule 702 of the Rules of Evidence, if scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert may testify in the form of an opinion.  Further, scientific evidence is admissible if it is relevant, appropriate and of assistance to the jury. The test for deciding whether to admit expert testimony "is whether the expert testimony reflects scientific knowledge that can be tested by scientific experimentation and whether the expert testimony logically advances a material aspect of the plaintiff’s case."  Raimbeault v. Takeuchi Mfg. (U.S.), Ltd., 772 A.2d 1056, 1061 (R.I. 2001).  In this case, the Supreme Court determined that the trial justice erred in excluding testimony from plaintiff’s engineer relative to defendant’s line of sight on the highway because the opinion was derived from an examination of the highway drawings and did not include actual measurements of the accident scene.  The Supreme Court held that the witness’s testimony was capable of verification by scientific experimentation and was relevant to the issues before the jury.  Accordingly, its exclusion was reversible error. 

Further, the refusal to permit plaintiff’s counsel to read two of defendant’s interrogatory answers because a proper foundation had not been laid was reversible error.  By its terms, Rule 613 of the Rules of Evidence does not apply to admissions of a party and no foundation is necessary before an admission can be introduced into evidence.           

State v. Rocco D'Alessio, No. 02-701 (April 1, 2004)

The Supreme Court affirmed the conviction of the defendant, Rocco D’Alessio (defendant), for the second-degree murder of his three-month-old daughter, Gianna Lynn D’Alessio (Gianna).  On appeal, the defendant first argued that the chief medical examiner of the State of Rhode Island, Elizabeth Laposata, M.D. (Dr. Laposata), was unqualified to offer her expert opinion that the cause of Gianna’s death was shaken-baby syndrome.  The defendant also alleged that the trial justice denied him his constitutional right of confrontation because he was precluded from cross-examining Gianna’s mother, Jennifer Greenhalgh (Ms. Greenhalgh), about her drug use since the time of Gianna’s death and at the time of trial.  Finally, according to the defendant, the trial justice erred by denying his motion for a new trial on the grounds that the verdict was against the weight of the evidence and failed to do substantial justice. 

The Supreme Court held that the trial justice properly qualified Dr. Laposata as an expert.  Doctor Laposata’s medical training in the fields of anatomic and forensic pathology, together with her experience as a medical examiner participating in other autopsies involving shaken-baby-syndrome, gave her sufficient education, training and experiences to allow her to express her opinion as to the cause of Gianna’s death.  The fact that Dr. Laposata was not an expert in the field of neuropathology might bear on the weight of her testimony, but not its admissibility.

The trial justice properly limited cross-examination of Ms. Greenhalgh on the issue of her supposed drug use because there was no indication that she was either intoxicated or suffering from adverse withdrawal symptoms at the time she testified.  Finally, the defendant was not entitled to a new trial because the trial justice properly reviewed the evidence and correctly concluded that the evidence supported the conviction.    

Phillip Johnston v. John Poulin et al, No. 02-318 (March 29, 2004)

Phillip Johnston (plaintiff) appealed the Superior Court judgment holding that Barbara and John Poulin (defendants) were not liable for plaintiff’s injuries caused by Barbara Poulin’s horse.  The injury occurred one evening after the horse escaped from its enclosure.  Two police officers found the horse on the highway and walked the horse to plaintiff’s barn to board it for the night.  As plaintiff tied the horse in its stall, the horse reared up and then fell down.  While getting back on its feet, the horse hit plaintiff in the head with its rear hoof.  

The plaintiff claimed that defendants were liable for his injuries pursuant to G.L. 1956 § 4 14 1, which confers strict liability upon an owner or keeper of a horse, regardless of fault, for damages caused by the horse while "at large."  The plaintiff asserted that the horse was "at large" from the time it escaped its enclosure until such time as it is returned to its "home." 

After an analysis of relevant case law and legal authority, the Court concluded that an animal is at large when it is free, unrestrained, at liberty to follow its own instincts, and not under effective control.  The question of whether the horse was still at large at the time of plaintiff’s injury is a question of fact to be resolved by the fact-finder.  The Court therefore reversed the grant of summary judgment and remanded the papers to the Superior Court for further proceedings.

State v. Donald Ramsey, No. 02-577 (March 29, 2004)

The Supreme Court affirmed defendant’s conviction on two counts of child molestation.  The defendant asserted on appeal that the trial court committed error in denying both his motion to suppress a written statement and his motion for a new trial.  The defendant argued that the written statement furnished to the Warwick police should have been suppressed because it was involuntarily coerced due to the threats and intimidating tactics of the officers.  Considering the totality of the circumstances, the Court found that defendant was not coerced or intimidated as there was evidence that he talked back to the officers and refused to include certain admissions in the statement, which defendant claimed the lieutenant pressured him to do.  The defendant also argued that his motion for a new trial should have been granted because the evidence presented by the prosecution was inherently unbelievable.  However, the trial justice properly complied with the applicable standard and did not overlook or misconceive material evidence, nor was she clearly wrong.

Cheryl A. DeMelo v. Richard P. Zompa, No. 01-174 (March 29, 2004)

The Supreme Court affirmed the Family Court’s dismissal of plaintiff’s divorce complaint, in which she asserted that a common-law marriage existed between her and defendant.  The trial court properly excluded plaintiff’s post-trial memorandum because it incorporated several documents that were not introduced at trial.  The trial court also did not abuse its discretion in refusing to find a common-law marriage.  Although the parties had lived together for 13 years, there was a lack of clear and convincing evidence that the parties intended to be husband and wife or that they held themselves out to the community as husband and wife.

State v. Treze D. Parson, No. 02-108 (March 29, 2004)

The defendant, Treze D. Parson, appealed from a Superior Court judgment denying his motion to correct an illegal sentence. The defendant argued that G.L. 1956 § 12-19-9 prohibits a sentencing justice from executing the previously suspended sentence of a probation violator beyond the end of the originally imposed term of probation. He asserted that the violation hearing justice lacked authority to order him to serve the entire ten years of his suspended sentence when less than two years remained on his ten-year period of probation. The Court denied the appeal.

The defendant’s argument for relief under § 12-19-9 has no merit.  The statute is clear and unambiguous.  If a defendant violates the terms of his or her probation, the court may remove the suspension and order the defendant to serve the entire portion of any sentence that was previously imposed but suspended, or any lesser sentence that the court determines is just.  A suspended sentence, however, does not begin to run until it is executed. See State v. Heath, 742 A.2d 1200, 1202 (R.I. 2000) (per curiam).

Accordingly, the Court denied the defendant’s appeal, and affirmed the judgment of the Superior Court.

Alexander E. Aponik, Jr. v. Joseph A. Lauricella et al, No. 03-150 (March 29, 2004)

The plaintiff, Alexander Aponik., Jr., contracted with defendants, Lauricella and Thiel, to build a house. When the house was nearly complete, plaintiff and defendants contested exactly how much of the house was finished and how much of the money to be paid under the contract was still due. The parties mutually agreed to arbitrate the dispute. Initially, the arbitrator awarded plaintiff $27,984, plus interest and costs. The award was later supplemented to include prejudgment interest of $6,716.16 for a total of $34,700.16. On appeal in Superior Court, the hearing justice affirmed the arbitrator’s award and added costs and attorneys’ fees for an additional award of $13,194.35. The Supreme Court affirmed the supplemented arbitration award, but reversed the Superior Court’s award of attorneys’ fees. The Superior Court could not add attorneys’ fees to the arbitration award unless the arbitrator had previously awarded them pursuant to a proper statutory provision. 

The Retirement Board of the Employees' Retirement System of the State of Rhode Island v. Edward D. DiPrete et al, No. 00-429 (March 26, 2004)

The defendant, former Rhode Island Governor Edward D. DiPrete (Mr. DiPrete), appealed from a Superior Court judgment revoking his pension and other retirement benefits pursuant to the Public Employee Pension Revocation and Reduction Act (PEPRRA), G.L. 1956 chapter 10.1 of title 36, after he pled guilty to eighteen criminal counts committed while in office between 1985 and 1991.  The plaintiff, the Retirement Board of the Employees’ Retirement System of the State of Rhode Island (Retirement Board), which initiated this revocation action, cross-appealed from the trial justice’s decision to return all of Mr. DiPrete’s retirement contributions.  Mr. DiPrete’s wife, Patricia H. DiPrete (Mrs. DiPrete), also appealed from a judgment prohibiting her from collecting any portion of Mr. DiPrete’s pension and other benefits as an innocent spouse pursuant to § 36-10.1-3(d).

With respect to Mr. DiPrete, the Supreme Court affirmed the full and complete revocation of his pension and retirement benefits.  Specifically, the Court held that: 

1)      Mr. DiPrete was subject to pension revocation under PEPRRA although he committed his many crimes dishonoring his office of Governor before 1996.

2)      The resolution of the criminal case against Mr. DiPrete did not preclude the Retirement Board from seeking to revoke Mr. DiPrete’s pension and benefits.  

3)      The failure to join Mrs. DiPrete as an indispensable party did not require dismissal of this revocation action against Mr. DiPrete.  

4)      The Retirement Board’s complaint seeking pension revocation under PEPRRA stated a claim upon which relief can be granted.  

5)      The General Assembly did not supercede PEPRRA in order to maintain preferable tax status of the state’s retirement system. 

6)  Based on his dishonorable behavior as governor and the clear purpose of PEPRRA, the trial justice properly revoked Mr. DiPrete’s pension and benefits in their entirety. 

 With respect to Mrs. DiPrete, however, the Court ruled that the trial justice’s decision to deny her request for even a portion of the retirement benefits was based on a misapplication of § 36-10.1-3(d).  The trial justice erred by failing to consider the importance of the economic partnership theory of marriage as it applies to the determination of justice required under the laws of this state, particularly § 36-10.1.3(d).  The trial justice’s decision also was flawed because he improperly drew an adverse inference against Mrs. DiPrete and he failed to make all required findings of fact.  Therefore, the Supreme Court vacated the portion of the judgment pertaining to Mrs. DiPrete and remanded for a further determination of her rights to the revoked pension and benefits in accordance with this opinion. 

As a consequence of the Supreme Court’s decision with respect to Mrs. DiPrete, the portion of the judgment ordering the return of contributions to Mr. DiPrete was also vacated.  The General Laws of Rhode Island, specifically § 36-10.1-4(b), expressly required Mr. DiPrete’s retirement contributions to be returned to him, without interest.  The portion of Mr. DiPrete’s return shall depend on the percentage of the benefits that the Superior Court may award Mrs. DiPrete. 

State v. Francisco Torres, No. 01-54 (March 26, 2004)

The defendant appealed from his conviction on three counts of assault with a dangerous weapon, arguing that his Sixth Amendment right to a public trial had been violated.  The trial justice had excluded the defendant’s two sisters from the courtroom during jury selection and voir dire on the basis that the courtroom, already filled with potential jurors, did not have enough seating to accommodate them.  The Supreme Court sustained the defendant’s appeal and remanded the case for a new trial, noting that the defendant was entitled to have family members present during the jury-selection process.  The Court also noted that the trial justice’s closure of the courtroom to the family members was intentional, extended through the entire jury-selection process, and failed to take into consideration any alternative accommodations.

Ronald T. Blanchard et al v. Theresa Carmone Wells et al, No. 03-248 (March 26, 2004)

The defendant, Theresa Carmone Wells (Ms. Wells), appealed a judgment granting specific performance of a purchase and sales agreement to the plaintiffs, Ronald T. Blanchard and Doris S. Blanchard (the Blanchards). The Blanchards filed a complaint for specific performance and damages, asserting that Ms. Wells wrongfully refused to perform her contractual obligations under the agreement and that they were ready, willing, and able to complete the purchase.  Ms. Wells, who after signing the agreement became concerned about buyers’ plans to subdivide and develop the lot, contended that the buyers never obtained all the permits as required by the agreement.  

 A grant of specific performance is appropriate when "a party to a real estate agreement unjustifiably refuses or fails to perform under the agreement." Yates v. Hill, 761 A.2d 677 (R.I. 2000).        Although Ms. Wells insists that the issuance of all development permits was a condition precedent to the closing, it is well established by this Court that "a party may waive a condition precedent if the condition is for the benefit of the waiving party." Thompson v. McCann, 762 A.2d 432 (R.I. 2000) (citing Jones v. United States, 96 U.S. 24, 28 (1877)).        In the instant case, the Court concluded that the conditions set forth in the purchase and sales agreement were for the protection of the Blanchards, as purchasers of the property.  If the Blanchands determined through the permitting process that they were not able to develop the property as they wished, they had the right, per this contract, to withdraw from the deal without prejudice.    

The Court concluded that ample evidence supported the hearing justice’s judgment in this case.  The purchase and sales agreement was sufficiently definite in its terms and left no reasonable doubt as to what the parties intended.  The Blanchards were ready, willing, and able to purchase the property and waived any conditions that might delay the sale.  Ms. Wells unjustifiably refused to perform her contractual obligations when the agreement provided her with no contractual right to halt the sale.  The Court therefore affirmed the judgment of the Superior Court.   

State v. Carlos Arroyo, No. 03-2 (March 26, 2004)

The defendant appealed his conviction for first-degree robbery following a jury trial in which he was also acquitted of three separate firearms offenses.  The defendant argued that the trial justice abused his discretion in qualifying as an expert a detective with limited experience in fingerprint examination, but the Court determined that his ability to offer expert testimony affected only the weight of that testimony, not its admissibility.  The defendant also claimed that the detective’s testimony was impermissibly bolstered by a second expert witness.  The Court, however, determined that this additional testimony was permissible because it did not address the detective’s credibility.  The defendant also maintained that his conviction on the first-degree robbery count was legally inconsistent with his acquittal on the firearms counts.  The Court upheld the verdicts because the counts are separate and distinct crimes and the jury could have inferred from the evidence that the defendant used a gun, despite the fact that no gun was ever introduced at trial.  Finally, the defendant argued that the trial justice erred in denying his motion for a new trial, but the Court determined that the trial justice complied with the applicable standard.  Thus, the Court affirmed the defendant’s conviction.

Cumberland Farms, Inc. v. State of Rhode Island, Department of Transporation by and through its Director, William D. Ankner, No. 02-482 (March 24, 2004)

This is a suit for damages arising out of a condemnation of a portion of property owned by the plaintiff, Cumberland Farms, Inc., by the defendant, State of Rhode Island, Department of Transportation (DOT).  The plaintiff is the owner of a Gulf gasoline station in the City of Warwick.  Sometime in 1993, the plaintiff was notified that the defendant was considering taking a portion of the plaintiff’s property in connection with highway improvements.  At the same time, the plaintiff was faced with a mandate from the Department of Environmental Management to replace its fuel storage tanks no later than December 23, 1998.  The DOT rejected the plaintiff’s attempts to have the taking coordinated with the tank removal.   After the plaintiff complied with the DEM mandate, it received a notice of the taking from DOT.  The plaintiff sought compensation for the cost of relocating the pump islands.  After a jury-waived trial, the trial court declined to award compensation finding that the operative date for condemnation damages with the date of the taking.  The Supreme Court affirmed.

Elizabeth E. Meyer et al v. City of Newport, et al, No. 02-457 (March 24, 2004)

The decision of the trial justice granting summary judgment in favor to the defendants is affirmed.  The trial justice found and the Supreme Court agreed that the plaintiffs, an abutting landowner to the defendant, Harbor Realty, LLC, and persons who have alleged that they make use of the Newport waterfront, have no standing to challenge a Superior Court consent judgment to which they are not parties.  Further, the trial justice concluded that the Uniform Declaratory Judgments Act, G.L. 1956 chapter 30 of title 9, does not vest the Superior Court with subject matter jurisdiction to pass upon the validity of a prior consent judgment.  The Superior Court also concluded that the plaintiffs failed to demonstrate an entitlement to injunctive relief, having failed to establish any irreparable harm that was immediate or imminently threatened.  This finding was also affirmed on appeal; the Supreme Court concluded that the plaintiffs have no standing to challenge a consent judgment to which they were not parties, nor have they met the jurisdictional prerequisite of an actual case or controversy.  Finally, the plaintiffs failed to join as indispensable parties all parties to the consent judgment.

America Condominium Association, Inc., et al v. IDC, Inc., et al, No. 01-469 (March 23, 2004)

In this condominium dispute, the parties cross-appeal a partial summary judgment entered in favor of the plaintiffs.   The plaintiffs’ cross-appeal is granted and defendants’ cross- appeal is denied.  

The Supreme Court held that the Rhode Island Condominium Act (the Act) is, in large part, a consumer protection statute.  Because a declarant’s development rights are special declarant rights under the Act, the unanimous consent of all unit owners was required to amend such development rights.  The defendants’ attempts to extend the declarant’s development rights were void ab initio because only master unit owners and representatives of the individual unit owners were permitted to give consent to such amendments.  Considering that the declarant’s development rights in the disputed areas were not timely exercised, those rights lapsed with the passage of time and fee simple title vested in all unit owners.  The one year statute of limitations was inapplicable because the amendments being challenged were void ab initio.  The affirmative defense of laches was not available to defendants where they voluntarily executed a tolling agreement extending the date that plaintiffs could file suit but then, nevertheless, developed one of the areas in dispute.  The defendants were entitled to an accounting with respect to their payment of common expenses after their rights in the disputed parcels had expired.

State v. Leneth Fisher, No. 00-485 (March 23, 2004)

The judgments of conviction for assault with a dangerous weapon and possession of a weapon after having been convicted of a crime of violence are affirmed.  The Supreme Court held that the refusal to permit cross-examination of a police witness regarding forensic testing of evidence was not error because the officer was not responsible for evidence handling and adequate cross-examination of the police detective actually charged with the seizure and testing of evidence was allowed.  Further, the Court upheld the decision of the trial justice to preclude defense counsel from participating in a demonstration of how defendant was assisted to the ground during his arrest.  Finally, any error in instructing the jury on constructive possession of the firearm was harmless. 

Ida L. Hall et al v. Steve Kuzenka et al, No. 02-153 (March 19, 2004)

The plaintiff, Ida L. Hall and the defendant, Brad W. McMenamon (defendant), were involved in a car accident in 1997.  Ida L. Hall and her husband Roger Hall (collectively plaintiffs), subsequently brought a negligence suit against defendant.  The defendant asserted the defense of lack of personal jurisdiction in his answer to plaintiff’s complaint, and later re-asserted that defense in a motion to dismiss pursuant to Rule 12(b)(2) of the Superior Court Rules of Civil Procedure.  The Superior Court granted defendant’s motion to dismiss.  The plaintiffs appealed the Superior Court judgment, asserting defendant’s motion to dismiss was untimely because, in contravention of the timing language of Rule 12(b), he filed his motion after filing his answer to plaintiffs’ complaint.  The Supreme Court held that, because defendant previously asserted lack of personal jurisdiction in his answer, his motion to dismiss was not untimely.  Accordingly, the Court affirmed the judgment of the Superior Court. 

Mary Gasper et al v. Maria F. Cordeiro, No. 03-62 (March 19, 2004)

Joseph Cordeiro (Joseph) and his sister-in-law Mary F. Cordeiro (defendant), opened two joint bank accounts in 1999.  Following Joseph’s death, the plaintiffs, Mary Gaspar and Agnes Caromile acting on behalf of their sister, Alice Cordeiro (collectively plaintiffs) and defendant filed cross motions for summary judgment on the issue of whether the accounts carried a right of survivorship for defendant.   The Superior Court concluded that the accounts did not carry a right of survivorship, and granted summary judgment for plaintiffs.  The defendant appealed the Superior Court judgment, asserting that an unsigned Personal Deposit Account Agreement, which was issued after the accounts were opened, and which contained survivorship language, indicated a right of survivorship in the accounts.  The Supreme Court held that because survivorship language did not appear on the signed signature cards or customer agreements, defendant did not have a right of survivorship in the joint accounts.  Accordingly, the Court affirmed the judgment of the Superior Court. 

Kenneth A. Castellucci v. Mark A. Battista, No. 02-687 (March 18, 2004)

The Court affirmed a judgment of liability and a remitted award of compensatory and punitive damages against defendant.  After suffering a home invasion and armed assault, plaintiff commenced a civil action against defendant for assault, battery, false imprisonment, intentional infliction of emotional distress, negligent infliction of emotional distress, trespass to land, and invasion of privacy.  The Court held that neither the punitive damage award of $300,000, nor the compensatory damage award of $150,000, each reduced by the trial justice in the amount of $25,000 from the amount awarded by a jury, was excessive.  The plaintiff was under no obligation to present evidence of the defendant’s financial means in order for the punitive damage award to be valid; the defendant bore the burden of mitigating damages with evidence of means and he assumed the risk by not doing so.  The trial justice properly denied defendant’s motion for a directed verdict on intentional infliction of emotional distress because plaintiff presented ample evidence of physical injury caused by the incident.  Evidence of defendant’s plea of nolo contendere for criminal charges stemming from the same incident was properly admitted for impeachment purposes because the plea resulted in a sentence and was not unduly prejudicial.  The defendant waived the right to argue inadequate jury instructions when he failed to object prior to jury deliberations. 

Paul M. Martinelli et al v. Little Angels Day Care, Inc., et al, No. 02-597 (March 18, 2004)

The Court reversed the Superior Court’s entry of summary judgment in favor of the defendant family day care home and its operators and ordered judgment to enter in favor of the plaintiff homeowners.  The plaintiffs alleged a violation of a restrictive covenant that limited use of the property in a Johnston subdivision "solely and exclusively for single family private residence purposes."  The Court held that the language of the restrictive covenant was unambiguous and that it prohibited business activity in the neighborhood.  Because the family day care home operated as a for-profit business and its activities were not consistent with those of a permanent, traditional family unit, it was held to directly contravene the restrictive covenant.  Although the state’s zoning law, G.L. 1956 § 45-24-37, permits placement of family day care homes in all residential zoning use districts, this does not destroy the force and effect of the restrictive covenant.  Moreover, public policy that favors day care homes in residential settings does not render unenforceable a valid restrictive covenant governing property rights.          

Cheryl Dowdell v. Peter Bloomquist, No. 02-630 (March 15, 2004)

The Supreme Court affirmed the judgment of a Superior Court trial justice granting injunctive relief to the plaintiff for the adjacent landowner’s planting of a close row of 40’ tall, expansive trees on the property line between the parties which blocked plaintiff’s view.  The Court deferred to the trial justice’s findings that the planting of the trees served no useful purpose and was maliciously intended, and that defendant’s actions were a violation of the spite fence statute, Rhode Island General Laws 1956 § 34-10-20.  The trees were properly considered a fence within the meaning of the statute.  Although there is no right at common law for light, air, or view, based on the language of § 34-10-20, violations of the statute are specifically actionable as a private nuisance.  Hence, equitable relief is an available remedy for violation of the spite fence statute. 

Robert Cherenzia et al v. Patrick Lynch, in his Official Capacity as Attorney General of the State of Rhode Island, No. 02-613 (March 15, 2004)

Holding that the provisions of G.L. 1956 § 20-6-30 neither infringed on the plaintiffs’ (fishermen) fundamental constitutional rights, nor violated their equal-protection or due-process rights, the Supreme Court reversed a Superior Court motion justice’s grant of summary judgment in favor of the fishermen.  The fishermen claimed that the provisions of G.L. 1956 § 20-6-30 precluding any person from using a self contained underwater breathing apparatus (SCUBA) when harvesting shellfish in four designated coastal ponds violated not only their "rights of fishery," as guaranteed by Art. 1, sec. 17 of the Rhode Island Constitution, but also their due-process and equal-protection rights as guaranteed by Art. 1, sec. 2 of the constitution.

The Supreme Court held that the anti-SCUBA statute did not violate Art. 1, sec. 17 of the constitution, which guarantees all the inhabitants of the state access to the state’s fishery resources, in equal measure, because the fishermen possessed no fundamental constitutional right to harvest shellfish with the assistance of SCUBA at the four ponds in question.  Additionally, the Court held that the statute did not violate their right to equal protection under the law because it did not create a suspect class, violate a fundamental constitutional right, or deny these fishermen their livelihood or occupation.  The Supreme Court held that the provisions of § 20-6-30 are not "wholly irrelevant" to the achievement of the state’s legitimate objective to protect the fishing resources of the state so that they can be enjoyed by all the inhabitants of the state who wish to access them.  Likewise, the Court held that the fishermen’s due-process claim failed because they did not prove, beyond a reasonable doubt, that the provisions of § 20-6-30 lacked a substantial relation to the public health, safety, and welfare, or to the Legislature’s constitutionally prescribed duty to protect and conserve the fishery resources of the state.  

State v. George D. Haney, No. 03-89 (March 12, 2004)

The defendant, George Haney, appealed from a Superior Court judgment convicting him of, inter alia, domestic assault for acts he committed in Burrillville during the evening of March 2, 2002.  Previously, in a separate case, the defendant pled nolo contendere to domestic assault charges stemming from acts he committed in Glocester earlier on that same evening.  On appeal, the defendant argued that the state placed him in double jeopardy by prosecuting him for both domestic assault charges.  The Supreme Court rejected this argument and affirmed the defendant’s conviction.  Initially, the Court held that the defendant waived his double-jeopardy argument because he failed to raise it in a pretrial motion as required by Rule 12(b)(2) of the Superior Court Rules of Criminal Procedure.  In addition, the Court observed that even if the defendant had preserved this defense, the state did not place him in double jeopardy because the domestic assault charges arose from separate acts.  The Court rejected defendant’s argument that both assaults were part of a single continuous act because defendant assaulted the victim on separate occasions at different times and in different places.

State v. Anthony J. DiChristofaro, No. 02-193 (March 10, 2004)

The defendant, Anthony J. DiChristofaro (defendant), was presented as a probation violator after he was arrested in 2001 for charges of felony assault and resisting arrest.  After being found to have violated his probation after a hearing, he was convicted at trial on these charges, which he challenged in a separate appeal.  The defendant appealed the Superior Court judgment revoking his probation, asserting that the hearing justice’s revocation of his probation was arbitrary and capricious.  Additionally, the defendant contended that his appeal from his post-trial convictions affected the propriety of the hearing justice’s decision.  The Supreme Court held that the hearing justice’s decision was not arbitrary or capricious and that the defendant’s appeal from his convictions was irrelevant to the revocation of his probation.  Accordingly, the Court affirmed the judgment of the Superior Court finding the defendant to have violated the terms of his probation. 

Eileen LaBella et al v. David R. Ortiz et al, No. 03-157 (March 5, 2004)

The defendants appealed the trial justice’s decision to grant the plaintiffs’ motion for a new trial in this civil action to recover damages for personal injuries resulting from a motor vehicle collision.  The jury had returned a verdict in favor of the defendants, finding that the plaintiffs failed to show that their injuries were proximately caused by the defendant motorist’s negligence, which the defendants had conceded at trial.  The defendants articulated a number of points on appeal, all of which basically relate to either (1) the failure of the trial justice to consider the inconsistencies in, and impeachment of, the plaintiffs’ expert witness or (2) the trial justice’s overlooking and misconceiving other evidence.  In affirming the decision to grant the plaintiffs’ motion for a new trial, the Court determined that the trial justice performed his function under the appropriate standard and neither overlooked nor misconceived material evidence.  The Court did not address the plaintiffs’ cross-appeal on the issue of an incorrect jury instruction because of its conclusion with respect to the defendants’ appeal.

In re:  New England Gas Company, No. 02-279 (March 5, 2004)

The petitioner, New England Gas, appeals from an order of the Public Utilities Commission denying its request to keep certain responses to commission-issued data requests from public disclosure. The commission denied New England Gas’s request to keep the data responses confidential because the information did not meet any of the exemptions in the Access to Public Records Act (the APRA). The Supreme Court affirmed the commission’s order, holding that the policy of the APRA favored disclosure of the information, and the APRA did not provide a remedy for a party seeking to keep information from public disclosure.

Dorene Tavares v. Aramark Corporation, No. 02-0160 (March 4, 2004)

The plaintiff suffered a workplace injury in 1996.  In a 1998 pretrial order, the plaintiff was no longer considered incapacitated and her benefits were terminated.  In this case the Court reviewed a decree of the Appellate Division of the Workers’ Compensation Court (Appellate Division) granting Dorene Tavares’s, (plaintiff) petition to resume collecting weekly indemnity benefits based on a return of incapacity following surgery performed in 1997.  The defendant, Aramark Corporation (defendant), asserted that the Appellate Division committed reversible error in concluding that plaintiff’s incapacity following surgery was causally related to her workplace injury.  The defendant further argued that, pursuant to G.L. 1956 § 28-33-38, plaintiff’s failure to attend an impartial medical examination as required by § 28-33-34 should result in her forfeiting benefits.  Finally, the defendant argued that there was no competent medical evidence in the record to support a finding that the plaintiff was totally incapacitated.   The Supreme Court held that the plaintiff’s incapacity following surgery was causally related to her original workplace injury even though the surgery was unnecessary.  The plaintiff relied on her doctor’s recommendation in good faith.  The Court in turn relied on Perron v. ITT Wire and Cable Div., 103 R.I. 336, 343, 237 A.2d 555, 559 (1968), which states that a plaintiff’s good faith submission to a course of treatment recommended by his or her treating physician establishes a causal relationship between a workplace injury and incapacity resulting from that course of treatment.

The Court also concluded that forfeiture of benefits was not mandated under § 28-33-38, and that there was competent evidence on the record to support the Appellate Division’s finding of total incapacity.  Accordingly, the Court affirmed the decree of the Appellate Division. 

Edmond J. Brown v. State of Rhode Island, No. 02-0393 (March 3, 2004)

The Supreme Court affirmed the Superior Court’s denial of the petition for post-conviction relief filed by the applicant, Edmond J. Brown.  The Court held that the applicant failed to timely raise any statute-of-limitations argument in his post-conviction-relief submissions or contentions to the Superior Court.  Because these issues were not raised with the hearing justice, the Court held that it could not consider them on review of that decision denying post-conviction relief.  The Court also noted that the applicant long ago had waived any statute-of-limitations defenses and arguments by failing to raise them as an affirmative defense at trial.  In any event, such defenses and arguments lacked any merit.

Likewise, the Court held the applicant had waived his ex-post-facto argument because it was not presented to the hearing justice.  And the Court also rejected the applicant’s suggestion that the hearing justice denied him procedural due process.  Even though this Court’s decision in Shatney v. State, 755 A.2d 130 (R.I. 2000) (per curiam) did not apply to his hearing, the applicant effectively received the benefit of the Shatney procedures at the hearing.  The Court also affirmed the hearing justice’s rejection of the applicant’s ineffective-assistance-of-counsel claim, agreeing that, in the main, the applicant was challenging the legitimate strategic decisions and trial tactics of his attorney. 

Mill Realty Associates, et al v. Robert Crowe, et al, No. 02-433 (February 17, 2004)

On certiorari from the Superior Court, the Supreme Court affirmed the decision of the trial justice that upheld a zoning board decision denying a building permit to the petitioner, Mill Realty Associates, a Rhode Island General Partnership. The petitioner sought relief from a decision of the building official of the town of Coventry and appealed to the respondents, members of the Zoning Board of Review of the town of Coventry. The petitioner alleged that it was not subject to the minimum lot size requirements of the town’s zoning ordinance because its lot was a single non-conforming lot of record in existence at the time the zoning ordinance was enacted and as such it was entitled to build a single family dwelling on a parcel that did not meet the minimum lot size requirement for lots without access to the public water supply.  Both the zoning official and the zoning board concluded that petitioner’s lot was a conforming lot of record because it had access to the public water supply.  The Superior Court affirmed this decision, finding that substantial evidence existed to support the board’s decision.  The Superior Court also rejected petitioner’s argument that it was the victim of selective enforcement.

The Supreme Court denied relief on the ground that petitioner failed to produce any evidence that it could not connect to an existing water line.  Additionally, the Supreme Court also concluded that petitioner failed to produce any evidence tending to support its contention that the ordinance was selectively enforced against it. 

State v. Jose Dearmas, No. 02-189 (February 13, 2004)

The petitioner, Jose Dearmas, is a defendant in a pending criminal case charging him with two counts of first-degree child molestation.  The state sought to obtain a blood sample from him to compare his DNA with the DNA obtained from body fluids that the perpetrator of the crimes in question left at the scene.  After a Superior Court trial justice issued a blood-seizure order and a search warrant for that purpose, this Court issued a writ of certiorari to review that order and warrant.  On review, the Supreme Court held that the term "property" as used in G.L. 1956 § 12-5-2 (authorizing the issuance of search warrants for the seizure of "property") does not include blood samples to be seized involuntarily from criminal defendants or suspects.  The Court also refused to interpret Rule 41 of the Superior Court Rules of Criminal Procedure in a manner inconsistent with § 12-5-2.  Consequently, the Court quashed a Superior Court order authorizing the police to seize a blood sample from the petitioner as well as the search warrant that a Superior Court trial justice had issued for that purpose because the Superior Court lacked the authority to do so. 

John M. Park v. Ford Motor Company, No. 02-575 (February 13, 2004)

The plaintiff, John M. Park, appealed a Superior Court judgment dismissing his motion for class certification, damages, and injunctive relief stemming from Ford Motor Company’s failure to include the SecuriLock™ system on his Ranger pickup truck when the "Monroney sticker" listed the system as a standard feature. The Superior Court dismissed Park’s motion for failure to plead the jurisdictional minimum amount in controversy for actions in Superior Court. The Supreme Court reversed the Superior Court because the Rhode Island Deceptive Trade Practices Act (the DTPA) vests the Superior Court with jurisdiction to hear cases involving violations of the DTPA. Furthermore, the DTPA allows victims of deceptive trade practices to aggregate their claims in a class action.

In Re Robert S. et al, No. 01-456 (February 11, 2004)

The decree of the Family Court terminating the parental rights of the respondent-father to his sons, Robert and Rashad, is affirmed.  The Family Court justice determined, by clear and convincing evidence, that respondent was an unfit parent because the children had been in DCYF custody for more than a year and that respondent was offered assistance to improve the situation but failed to comply with DCYF’s recommendations.  In addition, there was not a substantial likelihood that the children would be returned to respondent within a reasonable amount of time.  The respondent showed no interest in his children and no interest in being reunified with them.  Thus, in the best interest of the children, respondent’s parental rights are terminated.

Kevin Sweet v. Town of West Warwick;Town of West Warwick v. Kevin Sweet, et al, No. 02-612 (February 11, 2004)

The defendant, the town of West Warwick appealed from a Superior Court judgment in favor of the plaintiff, Kevin Sweet, in this action for the assessment of damages following the town’s taking of the plaintiff’s two multi-unit properties through eminent domain.  On appeal, the Supreme Court considered whether the trial justice properly calculated fair-market value of the properties by looking to their income producing potential rather than by looking exclusively to evidence of comparable sales.  Because both parties presented expert evidence of fair-market value based on the income approach and the trial justice found the evidence of comparable sales to be unreliable, the Court held that the trial justice did not err in using the income approach and affirmed the judgment of the Superior Court.   

Tyler v. Chavers et al v. Fleet Bank (RI), N.A. et al, No. 02-201 (February 11, 2004)

The plaintiffs opened credit card accounts with Fleet after receiving mail solicitations.  After Fleet raised the Annual Percentage Rates applied to their credit cards, plaintiffs initiated this class action suit against Fleet seeking damages and equitable relief for violations of Rhode Island’s Deceptive Trade Practices Act (DTPA) and breach of contract.  A Superior Court motion justice granted summary judgment in favor of Fleet on both counts.  The motion justice concluded that Fleet could not be subject to liability under the DTPA in this case.  The breach of contract claim was dismissed for lack of subject matter jurisdiction.  The judgment was affirmed in part and reversed in part.  The Supreme Court agreed that Fleet could not be subject to liability under the DTPA because its credit card solicitations were subject to regulation by federal agencies.  The Court, however, reversed the portion of the judgment dismissing the breach of contract claim because the Superior Court had equity jurisdiction over that claim.    

Stephen C. Bergquist v. John Cesario, No. 02-614 (February 9, 2004)

The defendant, John Cesario, appealed from a Superior Court "corrected order" entered on April 15, 2002, adjudging him in contempt of a December 10, 2001 restraining order. In addition, on June 12, 2003, the Court granted Cesario’s petition for certiorari, wherein Cesario sought review of five Superior Court orders.  The Court ruled that review of the May 31, 2001 order adjudging Cesario in contempt was not fairly raised in Cesario’s memoranda and was therefore waived. 

Cesario was adjudged in contempt and sentenced to the Adult Correctional Institutions for thirty days on August 20, 2001. It is apparent from the record that he was adjudged in criminal contempt and that the contempt hearing on August 20, 2001, was conducted without adherence to the notice requirements of Rule 42(b).  The Court concluded, however, that as the motion did not seek criminal sanctions and indeed was designated by the hearing justice as "civil," the Court need not vacate the entire judgment.  The judgment was allowed to stand as one of civil contempt; only the criminal contempt sanctions imposed by the judgment were vacated.  

Cesario also challenged the August 31, 2001 order restraining him from contacting the Bergquist children as being baseless and illegal. The Court was convinced from a careful review of the record that the hearing justice had ample evidence before him and was well within his discretionary authority to impose the restraining order both as an independent order and as a means of allowing Cesario to purge his contempt.  Cesario next challenged the granting of a motion to quash on October 22, 2001, and a December 10, 2001 court order adjudging him in contempt. Because Cesario did not provide the Court with the hearing transcripts, the Court was unable to review the lower court proceedings.  Therefore, the orders of the Superior Court were affirmed.

Lastly, Cesario argued that there was no clear and convincing evidence at the February 28, 2002 contempt hearing that he violated the court’s December 10, 2001 restraining order prohibiting his involvement in Bergquist’s Family Court proceedings. After reviewing the transcript, the Court concluded that the hearing justice did not abuse his discretion as there was ample evidence to support his finding that Cesario violated the restraining order. 

In summary, the thirty-day sentence imposed on August 20, 2001, was quashed. The judgments of the Superior Court were affirmed in all other respects.

State v. Aries Crudup, No. 02-458 (February 4, 2004)

The Supreme Court affirmed a hearing justice’s decision to revoke defendant’s probation.  On appeal, defendant argues that the hearing justice had insufficient evidence to conclude that defendant possessed a firearm, that the hearing justice erred in taking judicial notice that defendant was preparing the gun to be fired based on testimony that he was "racking" the weapon, and that defendant’s right to due process was violated because he was not sufficiently notified of the grounds for his violation.  The Court held that, even though the operability of the gun was not determinative, the evidence was reasonably satisfactory so that the hearing justice could determine that defendant possessed a firearm and in violation of his probation.  Further, even though the hearing justice made an unfortunate choice of words in taking "judicial notice," the same conclusion would have resulted had the hearing justice made an inference that defendant was preparing to fire his gun.  Finally, defendant’s right to due process was not violated because the state met its requirement by putting defendant on notice of the claimed violations of his probation pursuant to Rule 32(f) of the Superior Court Rules of Criminal Procedure.   

James R. McKinney v. State, No. 02-197 (February 4, 2004)

The Supreme Court reversed the Superior Court hearing justice’s decision to reduce defendant’s sentence of sixty years, with forty to serve, to twenty-five years to serve, after defendant pled nolo contendere to seven counts relating to an armed robbery when he fired shots at two people.  The hearing justice incorrectly determined that defendant’s sentence was disproportionate and, thus, in violation of the Cruel and Unusual Punishment clauses of the Rhode Island and United States Constitutions.  Based on recent United States Supreme Court cases, the Court held that the Constitutions provide a narrow proportionality guarantee and, because defendant’s sentence was commensurate to his crimes, the original sentence was constitutional and, thus, upheld.  In doing so, the Court adopted a test for disproportionality that requires a defendant’s sentence to be commensurate to the crime he committed.  Only if the sentence is not commensurate to the crimes will defendant’s sentence be compared to sentences imposed on similarly situated defendants.  

Edward R. D'Allesandro et al v. Ronald Tarro, in his capacity as treasurer of the Town of Barrington, et al, No. 03-218 (February 2, 2004)

The plaintiff, Edward D’Allesandro, appealed from an entry of summary judgment in favor of the defendant, Ronald Tarro, in his capacity as treasurer of the Town of Barrington.  The plaintiff argued that the hearing justice erroneously concluded that he assumed the risk of falling when he walked backwards without looking behind him and fell over a large rock within a town right-of-way. 

The doctrine of assumption of risk, if proven, "absolve[s] a defendant of liability for having created an unreasonable risk." Raimbeault v. Takeuchi Manufacturing (U.S.), Ltd., 772 A.2d 1056, 1064 (R.I. 2001) (per curiam) (citing Walker v. Jackson, 723 A.2d 1115, 1117 (R.I. 1999) (per curiam) and Rickey v. Boden, 421 A.2d 539, 543 (R.I. 1980)).  Whether a plaintiff has assumed the risk of harm is generally a question for a trier of fact. Rickey v. Boden, 421 A.2d at 543.  However, if only one rational inference can be drawn from the evidence on this issue, then the trial justice may treat the question as one of law. Id.

The facts of this case suggest that only one reasonable inference can be drawn, namely, that plaintiff voluntarily assumed a risk after he knew and understood the risk involved.  He admitted that, with full knowledge of the presence of large rocks in the area, he stepped backwards while looking in a forward direction.  The plaintiff testified at deposition that he knew there were rocks on the subject property, and that they had been there for "quite some time."  He had knowledge of the property because he lived across the street from the right-of-way for twenty-five years and had parked his truck on the abutting vacant lot "from time to time."  The plaintiff’s knowledge was adequate to put him on warning that he was taking a risk by walking backwards without looking where he was going.  Accordingly, the Court affirmed the judgment of the Superior Court.

Capital Properties, Inc. v. City of Providence et al, No. 01-596 (January 30, 2004)

The City of Providence appealed to the Rhode Island Supreme Court from an award of costs and attorney’s fees to Capital Properties, Inc.  

The Court affirmed the judgment of the Superior Court on the basis of the statutory provisions of Rhode Island General Laws § 44-7-12, which allow for reimbursement of reasonable costs and attorney’s fees to a plaintiff.  Recovery was proper under § 44-7-12(b) because:  (1) CPI was the prevailing party in the civil action; (2) the civil action arose from the collection of a municipal tax levy;  and (3) there existed a complete absence of a justiciable issue of either law or fact raised by the losing party. 

Jalex Builders, Inc. v. Janet F. Monaghan, No. 03-0059 (January 29, 2004)

The plaintiff, Jalex Builders, Inc., (plaintiff) filed an action against defendant, Janet F. Monaghan, (defendant) for breach of a contract to construct a home for defendant.  The defendant filed a counterclaim for defective workmanship.  After a jury-waived trial, the trial justice found that plaintiff was entitled to recover for work performed under the contract, but that certain aspects of the work performed by plaintiff were defective.  The trial justice offset the damages awarded to each party and entered judgment for defendant.  The plaintiff appealed, arguing the trial justice erred in deeming its work defective.  The defendant argued that, because plaintiff did not file a motion for a new trial, the trial justice’s findings were not reviewable on appeal.  The Supreme Court held that the findings were reviewable, despite plaintiff’s failure to move for a new trial because the case was heard at a non-jury trial.  The Supreme Court, however, held that the trial justice properly deemed plaintiff’s workmanship defective and properly awarded damages to defendant. 

State v. James Grant, No. 01-0045 (January 27, 2004)

The defendant was convicted of two counts of first degree robbery, two counts of assault with a dangerous weapon, possession of a firearm without a license and possession of a firearm after having been previously convicted of a crime of violence.  His convictions are affirmed.  The defendant raised for the first time on appeal whether the eyewitness, pursuant to Rule 602 of the Rhode Island Rules of Evidence, had the requisite personal knowledge to identify defendant.  Consequently, the Court deems this issue waived.  The defendant also challenged the refusal of the trial justice to instruct the jury to consider whether the crimes of receiving stolen goods and obtaining money under false pretenses are lesser-included offenses to the crime of robbery.  This argument is without merit; neither offense meets the test set forth in Blockburger v. United States, 284 U.S. 299 (1932).  Because each offense requires proof of elements not included in those required for robbery, they are not lesser-included-offenses of robbery.  Finally, the Court rejects defendant’s contention that an inventory search of defendant’s backpack upon his arrest was illegal.

James D'Oliveira v. Rare Hospitality International, Inc., No. 03-124 (January 27, 2004)

The grant of summary judgment by the trial justice is affirmed in this employment contract case.  The trial justice concluded that no genuine issue of material fact existed and that the defendant was entitled to judgment as a matter of law because plaintiff failed to establish the existence of a binding agreement to pay him severance benefits based on salary and tenure upon termination of his employment with the defendant corporation.  Citing the Supreme Court’s decision in Roy v. Woonsocket Institutions for Savings, et al., 525 A.2d 915, 918 (R.I. 1987), the Court affirmed the decision of the hearing justice declaring that if an employee is notified by his or her employer that its benefits policies are subject to unilateral change, the employee does not have a legitimate expectation that any particular policy will remain in effect.

Because plaintiff acknowledged that he never received any documentation from defendant evidencing the specific conditions of defendant’s severance policy and indeed, never inquired into the plan, plaintiff failed to establish the existence of an enforceable contract to pay severance benefits based on salary and tenure. 

 

Walter M. DeLuca v. Linda Lee DeLuca, No. 02-9 (January 23, 2004)

The Supreme Court affirmed a Family Court order denying the defendant, Linda DeLuca’s (wife) motion to vacate the decision granting her and her husband a divorce pending entry of a final judgment based on the agreements that the parties placed on the record at a nominal-court hearing.  The Court also affirmed the Family Court’s order denying her motion for a new trial and other relief. 

With respect to the motion to vacate, the Court ruled that the Family Court magistrate did not err in rejecting the wife’s offer to return to court at some unspecified date in the future with expert medical evidence that would establish her contention that prescription drugs had impaired her understanding of what occurred at the nominal hearing, at which both parties were represented by counsel.  The Court also held that a motion for a new trial was not the appropriate method for challenging the terms of a divorce decision in a nominal case because the court did not sift through factual issues and settle questions of law at the hearing, but merely read into the record the parties’ agreement on the terms of the divorce.  Also, the Court decided that allowing the parties to complete discovery concerning their respective assets after the conclusion of the nominal hearing did not result in reversible error.  Finally, the Court ruled that allowing post-hearing depositions and the parties to enter into a written property-settlement agreement were not intended to function as conditions precedent to the entry of a decision pending entry of a final divorce judgment.

David DeLaire v. Rick H. Kaskel et al, No. 02-477 (January 22, 2004)

The judgment granting summary judgment in favor of defendants is vacated.  The Supreme Court rejected defendants’ argument that plaintiff, an animal control officer for the town of East Greenwich, falls within the ambit of the public safety officer’s rule. The Court declined to extend the public safety officer’s rule to animal control officers, and refused to relieve a landowner from liability for negligence.  Because of the significant differences in the duties and responsibilities of animal control officers and public safety officials, and the disparities between their compensation, injured-on-duty guarantees and other statutory protections, fundamental concepts of justice do not preclude an animal control officer from seeking redress for the negligent acts of a landowner.

Amy Realty, A RIGP v. Sergio S. Gomes, et al, No. 02-480 (January 21, 2004)

Validating certified mail, return-receipt requested, as a proper method of notifying taxpayers of a proposed sale of their property for nonpayment of taxes, the Supreme Court reversed and vacated a Superior Court order nullifying the tax sale of certain real estate in Pawtucket.  The Court also affirmed the Superior Court order requiring the defendant taxpayers to deposit into the court registry the amount plaintiff paid at the tax sale.  The Supreme Court held that the Narragansett Bay Water Quality District Commission (NBC) complied with G.L. 1956 § 44-9-10’s notice requirements by sending the notice of the tax sale by certified mail, return receipt requested, to the taxpayers’ last and usual place of abode, even though the taxpayers alleged that they never received actual notice of the sale.  The Supreme Court also held that the hearing justice, pursuant to his equitable powers, did not err in ordering the taxpayers to deposit money into the court registry to ensure that they were ready, willing, and able to redeem the property.  The Supreme Court then remanded this case to the Superior Court to determine whether, in addition to the amount defendants paid into the registry, the plaintiff tax-sale purchaser would be entitled to recover any of the costs, penalties, taxes, and interest, along with the net rents on the property, for the period from the one-year anniversary of the tax sale to the date of redemption.

David Mattos et al. v. Lisa Seaton, Alias et al, No. 03-166 (January 16, 2004)

The Supreme Court affirmed summary judgment in favor of the plaintiffs, David Mattos and Diane Mattos, in this dispute over the existence of an alleged easement between adjacent lots in the Town of Cumberland.  Citing the merger doctrine, the Court rejected the defendant’s contention that the original owners created an easement across plaintiffs’ property to benefit defendant’s lot.  In any event, the Court held that the original owners intended any easement to end when the defendant’s lot obtained access to a town road, and the defendant’s lot had obtained such access before this lawsuit began.  Consequently, the Court affirmed the summary judgment in favor of the plaintiffs.

Alma Santiago, by and through her mother and natural Guardian, Alma Martinez v. First Student, Inc., et al, No. 03-41 (January 15, 2004)

The plaintiff, Alma Santiago (plaintiff), by and through her mother and natural guardian, Alma Martinez, appeals from a summary judgment entered in favor of the defendant, First Student, Inc. (defendant).  The plaintiff claimed that she was injured when defendant’s school bus, in which she was a passenger, collided with another vehicle.  The plaintiff, however, was unable to describe the collision or provide any other evidence to indicate how the collision occurred.  The Supreme Court affirmed summary judgment because plaintiff failed to provide any evidence of defendant’s negligence.    

State v. Diana Portes, No. 01-567 (January 14, 2004)  Corrected

The Supreme Court affirmed the judgment of conviction after a jury found the defendant guilty of possession of in excess of one kilo of cocaine and possession of cocaine with intent to deliver.  The trial justice properly denied defendant’s pretrial motion seeking to suppress evidence because the police were justified in entering the apartment and making a cursory search under the emergency exception to the constitutional protection against an unlawful search or seizure.  The state presented sufficient evidence to prove beyond a reasonable doubt that defendant was in constructive possession of the drugs.  It was reasonable to infer that she had knowledge of the contraband and had the intent to exercise control over it in part because the contraband was found throughout the home where she resided.  Neither the trial justice’s deferred ruling on the admissibility of evidence of the co-defendants’ flight, nor the prosecutor’s closing arguments, were unreasonably prejudicial.    

Debra A. LePage, as Administratrix of the Estate of Allen LePage v. Adam C. Babcock et al, No. 03-132 (January 14, 2004)

The Supreme Court affirmed summary judgment in favor of an employer who owned a trailer involved in a fatal accident with an employee, and where the employer did not own the tractor that hauled the trailer.  The motion justice properly granted the defendant employer’s motion because a trailer is not a motor vehicle as defined by G.L. 1956 § 31-1-3; rather, it is a vehicle.  Therefore, the employer can not be held vicariously liable pursuant to G.L. 1956 § 31-33-6, which specifically uses the term "motor vehicle" rather than simply "vehicle," for the acts of the operator of the tractor hauling the trailer.  The motion justice correctly refrained from ruling on the plaintiff’s argument under the dual persona doctrine, an exception to the exclusive remedy provision of the Workers’ Compensation Act, because the use of that doctrine was dependent upon the vicarious liability statute on which she based her claim against the employer.

In re Abby D., No. 03-21 (January 14, 2004)

The mother and grandparent of Abby D. (Abby) filed a joint petition to adopt Abby pursuant to G.L. 1956 § 15-7-5(b).  The petition was granted, and, pursuant to § 15-7-5(b), the respondent’s, Joseph Doucette, parental rights to Abby were terminated under G.L. 1956 § 15-7-7(a)(4) for statutory abandonment.  The respondent appealed, arguing that Abby’s mother and grandparent were not entitled under § 15-7-5(b) to file a joint petition for adoption, and that his parental rights were improperly terminated.  The Supreme Court held that § 15-7-5(b) expressly allows a parent to join the adoption petition of a grandparent.  The Court also concluded that there was sufficient evidence that respondent abandoned Abby pursuant to § 15-7-7(a)(4).  Accordingly, the Court affirmed the decree granting the adoption and terminating the respondent’s parental rights.   

State v. Julius Foster, No. 00-467 (January 14, 2004)

The defendant appealed from his conviction for possession of cocaine.  In his appeal, he contended that the trial justice erred in not granting his motion to suppress the cocaine evidence, which was taken from the rear seat of a police cruiser after an officer detained him there during a traffic stop.  The officer had observed the defendant passenger making furtive movements in the stopped vehicle, ordered him out, and then conducted a pat-down search of his person.  The defendant argued on appeal that the Fourth Amendment prohibited his subsequent detention in the cruiser because the officer’s pat-down revealed neither weapons nor contraband.  The Supreme Court balanced the defendant’s constitutional rights with the opposing state interests in crime prevention and officer safety and determined that detaining the defendant in the cruiser was a reasonable measure under the circumstances.  Noting that the defendant’s suspicious behavior during the stop mirrored that of another passenger of the car whom the officer was then in the process of arresting for cocaine possession, the Court concluded that under the totality of the circumstances the detention of the defendant was constitutionally permissible.

Casco Indemnity Company v. Kenneth Gonsalves, No. 03-159 (January 12, 2004)

The injured defendant, Kenneth Gonsalves (Gonsalves), appealed from a summary judgment declaring that he cannot collect under the uninsured motorist provision of his automobile insurance contract with the plaintiff, Casco Indemnity Company (Casco).  Gonsalves was injured when a junked Plymouth Horizon that was stacked on top of two other vehicles in a salvage yard fell on him.  The Supreme Court held that, because the Horizon was being used as junk at the time of the accident, he was not injured by a "motor vehicle," as contemplated by the insurance contract.  Thus, the Supreme Court affirmed judgment in favor of Casco.

Gertrude Taylor v. Mass. Flora Realty, Inc., No. 02-681 (January 12, 2004)

The plaintiff, Gertrude Taylor (plaintiff), appeals from a Superior Court summary judgment in favor of the defendant, Mass. Flora Realty, Inc. (defendant).  The plaintiff was injured when she slipped and fell on a patch of black ice in the parking lot of defendant’s shopping plaza.  According to plaintiff, the ice was formed after snow had been plowed, melted and refroze.  Because the injury occurred in Massachusetts, the conduct leading to the injuries occurred in Massachusetts, and the parties’ relationship was centered in Massachusetts, the Supreme Court held that Massachusetts negligence law applied.  Under Massachusetts law, even if defendant did cause the ice to form by plowing the snow, which later melted then refroze, the conduct does not amount to negligence.  Therefore the Superior Court’s entry of summary judgment was affirmed.

Bryan D. Konar v. PFL Life Insurance Company v. National Development Asset Management of New England v. Dennis DePalma, Alias, and Rhode Island Bureau of Investigation and Protection, Ltd., No. 02-291 (January 9, 2004)

The plaintiff Bryan D. Konar brought suit against defendant, PFL Life Insurance Company, for negligent security, after he was attacked in the parking lot of defendant’s mall.  On the day of the attack, defendant’s independent contractor was responsible for providing security at the mall.  Affirming summary judgment in favor of defendant, the Supreme Court held that, pursuant to the independent contractor rule, defendant was not liable for its independent contractor’s negligence.  Because plaintiff’s complaint did not include a claim for premises liability, the Court rejected plaintiff’s request to adopt the exception to the independent contractor rule contained in § 425 of the Restatement (Second) of Torts.  The Court, however, did express its willingness to revisit the issues of § 425 given the right facts and circumstances.

Fatima Furtado v. Claire A. Laferriere, No. 02-594 (January 9, 2004)

The plaintiff filed a personal injury action against defendant on the eve of the statute of limitations.  That suit was dismissed without prejudice for insufficient service of process pursuant to Rule 4(l) of the Superior Court Rules of Civil Procedure.  Relying on the savings statute, G.L. 1956 § 9-1-22, plaintiff re-filed her claim against defendant within one year of the dismissal of her first case.  Concluding that plaintiff was not entitled to the protection of the savings statute, the motion justice granted defendant’s motion for summary judgment.  Eleven months later, final judgment was entered and plaintiff appealed.  The Supreme Court held that plaintiff timely appealed from the final judgment.  Additionally, the Supreme Court reversed the summary judgment because plaintiff’s first case was not dismissed for neglect to prosecute and, therefore, the savings statute applied. 

Linda J. Franco et al v. Joseph A. Latina, M.D., No. 02-233 (January 9, 2004)

In this medical malpractice case, the Supreme Court affirmed a Superior Court decision granting plaintiff’s motion for a new trial.  The Court held that the trial justice did not overlook or misconceive evidence in finding that the defendant doctor violated the standard of care when he mistakenly clipped and cut plaintiff’s bile duct rather that her cystic duct.  Based on the testimony of plaintiff’s expert witnesses, the trial justice found that even though defendant used a surgical procedure that was within the standard of care when he performed the surgery, the defendant’s negligent performance of this procedure, not the technique itself, caused defendant’s negligent misidentification of plaintiff’s cystic duct.  In her decision, the trial justice noted that during cross-examination the defendant acknowledged that the standard of care required him to conclusively identify the anatomical structures before performing the surgical procedure.  Therefore, the Supreme Court held that the trial justice properly functioned as a "superjuror" by soundly exercising her independent judgment and evaluating the weight of the evidence and the credibility of the witnesses.

Virginia Mead et al v. Papa Razzi Restaurant et al, No. 02-648 (January 9, 2004)

The trial justice erred when he granted the defendants’ motion for judgment as a matter of law at the close of the plaintiffs’ case.  The plaintiffs, a patron injured in a slip and fall and her husband, presented sufficient evidence for a jury to determine whether it was more probable than not that defendants’ agents negligently caused the unsafe condition or did not correct the same within a reasonable period of time.  Issues of fact upon which reasonable minds might differ remained, especially in light of testimony that defendants’ corporate policy required production of an incident report but that none was available for the incident in question.  Absent an explanation of the existence or nonexistence of the incident report, the jury could have inferred that its production would have had adverse consequences for defendant.      

In re William R. et al, No. 01-261 (January 9, 2004)

A mother appealed a Family Court order terminating her parental rights to her two sons.  The Supreme Court affirmed the order terminating her parental rights, holding that the evidence introduced at the hearing demonstrated that the mother’s mental illness, coupled with her need for continued specialized care, demonstrated her unfitness to care for her children under G.L. 1956 § 15-7-7(a)(2).  In addition, the Supreme Court held that the Department of Children, Youth, and Their Families properly made reasonable efforts pursuant to G.L. 1956 § 15-7-7(b)(1) to strengthen and encourage the mother’s relations with her two sons by considering the mother’s mental illness and making appropriate treatment recommendations based thereon.

Read & Lundy, Inc. and Clifford McFarland v. The Washington Trust Company of Westerly, No. 03-020 (January 9, 2004)

The plaintiffs, Read & Lundy, Inc. (R&L) and Clifford McFarland, appeal from a summary judgment in favor of the defendant, the Washing to n Trust Company of Westerly (hereinafter "the bank").  The plaintiffs alleged that the bank improperly used info rmation from an R&L loan application to decide whether to issue a loan to a business competi to r of R&L.  The Supreme Court upheld the motion justice’s grant of summary judgment in favor of the bank on plaintiffs’ breach of contract claim because plaintiffs failed to present any evidence of a mutual agreement with the bank about the bank’s internal use of the info rmation contained in their loan application.  The Court held that, in the absence of an agreement to the contrary, a bank violates no duty to a loan cus to mer when it uses info rmation received from that borrower in deciding whether to make a loan to another prospective borrower.  The Court held that the plaintiffs failed to establish a prima facie case for interference-with-contractual-relations by failing to show damages resulting from the bank’s actions.  The Supreme Court ruled that the motion justice correctly granted summary judgment on the plaintiff’s civil conspiracy claim because plaintiffs failed to show any facts that would support an underlying intentional to rt liability against the bank.  Lastly, the Court held that the plaintiffs’ claims for violation of the Uniform Trade Secrets Act were time-barred under G.L. 1956 § 6-41-6.   

Sun-Lite Partnership v. Town of West Warwick, No. 02-234 (December 23, 2003)

State v. Joseph Tavares, No. 02-563 (December 22, 2003)

The defendant’s appeal from a Superior Court judgment declaring him to be a violator of the terms and conditions of his probation and ordering him to serve five years at the Adult Correctional Institutions is sustained. The defendant was declared a probation violator for failure to pay restitution.  Not only had the defendant’s probation expired, the tolling period had also lapsed.  The record discloses that an arrest warrant based on a probation violation notice was outstanding at the time the defendant’s probation expired.  However, when the defendant was surrendered on the warrant, he was released on personal recognizance based on his promise to satisfy his restitution obligation.  He was subsequently arrested and released numerous times, having made no restitution payments.  The hearing justice found that each successive warrant issued for the defendant’s arrest tolled the period of probation.  We deem this to be error.  The judgment is reversed and the papers in the case are returned to Superior Court.

State v. Francisco Sosa, No. 01-184 (December 22, 2003)

The defendant’s appeal from judgments of conviction for murder in the first degree and possession of a firearm without a license is denied and dismissed.  The Supreme Court rejected defendant’s contention that the introduction of a prosecution witness’s former testimony violated his Sixth Amendment right to confront the witnesses against him.  The finding that the state exercised reasonable diligence in attempting to secure the attendance of the witness for trial is supported by the evidence. The touchstone of an unavailability analysis is reasonableness, not exhaustion.

The remaining issues raised by defendant are without merit.  The evidence against defendant did not support an instruction on second-degree murder.  The motion to dismiss the jury panel was untimely and incorrect as a matter of law.  The defendant made no effort to establish that the jury did not represent a fair cross-section of the community and merely moved to pass the particular panel of potential jurors rather than the entire venire.  Finally, he trial justice did not err in denying defendant’s motion for a new trial.  The judgment is affirmed.

Alvin A. Owens, Jr. v. Charles P. Silvia, M.D., et al, No. 02-218 (December 22, 2003)

The plaintiff, Alvin A. Owens Jr., appealed from a Superior Court judgment as a matter of law in favor of the defendants, Gregory Towne, M.D., Rebecca Paolino, C.R.N.A., and Rhode Island Hospital.  The Supreme Court held that the trial justice abused his discretion in determining that Owens’ expert witness, a board-certified anesthesiologist, was not qualified to render his opinions because his theory of negligence was not one shared by the individual defendants, and because Owens failed to introduce any evidence that would corroborate the scientific validity of the expert’s causation conclusions.  The Court affirmed the trial justice’s decision to preclude Owens from using, in his case-in-chief, deposition testimony of the defendants’ expert witness.  The Supreme Court decided that, absent extraordinary circumstances not present in this case, a party may not obtain expert testimony for use in his or her case-in-chief from a deposition taken of the opposing party’s expert trial witness during the discovery process.  Lastly, the Court held the trial justice did not abuse his discretion in failing to conduct an in limine hearing before allowing the defendants to introduce a consent form signed by Owens because the defendants were not introducing evidence to rebut a claim alleging a lack of informed consent, nor using informed consent as an affirmative defense to such a claim. 

Sylvia Carolina Africano v. Frank R. Castelli, No. 02-158 (December 19, 2003)

The Supreme Court affirmed the order of the Family Court suspending the defendant-father’s visitations with his daughter.  The trial justice properly considered the best interests of the child in concluding that continued visitations between the father and his daughter would endanger the child’s physical and mental health, as well as her over-all well-being.  The Court affirmed the Family Court’s orders awarding attorney’s fees to the father and denying the plaintiff-mother’s claims for uninsured medical expenses and attorney’s fees as an appropriate sanction, in light of the extent and willfulness of the mother’s contemptuous behavior in this case.  The Supreme Court also held that the court’s continued custody of the mother’s and her daughter’s passports and the order requiring the child to reside within fifty miles of Rhode Island were proper to enhance the possibility that the father would be able to obtain visitation with his daughter in the not-too-distant future.  The Court would not review the mother’s cross-appeal on the issue of suspension of child support because it reviews orders modifying child support only by writ of certiorari, not on appeal, even when such orders are bundled with other issues.  Finally, if the parties file any motions in the future relating to their daughter, the court shall appoint a guardian ad litem, who, after conducting an appropriate investigation, shall report to the court concerning the child’s best interests with respect to the motion in question.

Geraldine Mills, M.D. v. C.H.I.L.D., Inc., et al, No. 03-90 (December 19, 2003)

The Supreme Court affirmed the Superior Court summary judgment in favor of the defendant C.H.I.L.D. Inc. and its employees against the plaintiff, Dr. Geraldine Mills.  The Court held that Dr. Mills’ failure to provide a transcript proved fatal to her appeal concerning her motion to amend her complaint.  The Court held that it was impossible to determine whether the motion justice abused her discretion in partially denying the motion to amend because, without a transcript, the Court did not know the reasons for the denial.  The Supreme Court also ruled that certain challenged statements, while employees of C.H.I.L.D. Inc. communicated to others about Dr. Mills’ alleged inability to continue taking RIte Care patients, were subject to a qualified privilege making them immune to a claim for defamation.  Additionally, Dr. Mills presented no evidence of malice on the defendants’ part that would overcome this qualified privilege.  Lastly, the Court held that the motion justice did not err in granting summary judgment dismissing Dr. Mills’ claim for tortious interference with contractual relations because she failed to show evidence of damages resulting from the alleged interference.       

Cerberus Partners, L.P. et al v. Gadsby & Hannah, LLP, Schatz & Schatz, Ribicoff & Kotkin v. Adam C. Harris and O'Melveny & Myers, LLP, No. 02-196 (December 19, 2003

This is an appeal from a Superior Court judgment granting third-party defendants’, Adam C. Harris and O’Melveny & Myers, LLP, motion to dismiss for lack of personal jurisdiction over the out-of-state lawyer and law firm. The underlying suit arose when successors in interest to a lending syndicate lost their security interest in the assets and inventory of a company to whom the lending syndicate had made sizable loans. The lenders lost their security interest when the law firms that counseled the lenders failed to perfect the lenders’ security interest in   New Hampshire  after the debtor company moved to that state. Harris and the O’Melveny firm were brought in as counsel to the lenders after the debtor company sought voluntary bankruptcy protection in federal court. Gadsby & Hannah, Schatz & Schatz, Ribicoff & Kotkin served as counsel for the lenders in the underlying loan agreements, which were governed by the laws of   Rhode Island. The lenders sued these law firms for malpractice as a result of their failure to perfect the lenders’ security interest in the debtor company’s assets and inventory in   New Hampshire  . These law firms are third-party plaintiffs in the present action. They claimed that if they are liable to the lenders, then Harris and O’Melveny are liable under theories of contribution and indemnity as co-counsel to the lenders.

Harris and O’Melveny, a   New York  lawyer and New York office of a California law firm, moved to dismiss for lack of personal jurisdiction. The trial justice granted the motion and noted that Harris and O’Melveny did not have sufficient contacts with Rhode Island to warrant the exercise of jurisdiction over them. The Court affirmed the trial justice’s decision that Rhode Island could not exercise either specific or general jurisdiction over Harris and O’Melveny. The Court held that the Rhode Island choice-of-law provision in the underlying loan agreements was not sufficient to support jurisdiction over third-party defendants where they took no part in drafting the loan agreements and never counseled the lenders in Rhode Island . Furthermore, the Court held that Harris and O’Melveny had insufficient contacts with Rhode Island to support the exercise of general jurisdiction where neither the lawyer nor the law firm made regular appearances in Rhode Island on behalf of Rhode Island clients.

 

Virginia M. Hanley et al, No. 02-535 (December 19, 2003)

In this slip-and-fall case, the Supreme Court held that the  Superior Court had jurisdiction to hear the state’s motion for summary judgment pursuant to the so-called the recreational use statute, Chapter 6 of title 32 of the Rhode Island General Laws, where the state affirmatively pleaded the defense of immunity in its answer to the complaint.   The state is an owner entitled to immunity under the statute when the alleged injury occured within a state-owned public park.  None of the exceptions to the statute apply in this case where: (a) the plaintiffs did not allege that the state engaged in any willful or malicious conduct; (b) walking is an activity that is inextricably linked with one of the statute’s enumerated activities, namely, camping; and (c) payment of a camping fee did not constitute an entrance fee for purposes of the statute.

City of Woonsocket v. International Brotherhood of Police Officers, Local 404 et al, No. 02-570 (December 18, 2003)

In this labor arbitration, the arbitrator concluded that the plaintiff, the City of Woonsocket, failed to comply with the provisions of the collective bargaining agreement by failing to provide a timely response to an employee’s claim that he was suffering an on-duty injury arising from a diagnosis of hypertension.  The arbitrator found that the contract language was unambiguous and required the city to file a written response either accepting or rejecting the claim within 15 days of receipt or the claim was deemed accepted.  She concluded that the city had violated the contract provisions and directed that the employee be awarded injured-on-duty status and benefits. The Superior Court hearing justice concluded that the award was not irrational, and was a passably plausible interpretation of the contract and confirmed the award.  The hearing justice also awarded attorneys’ fees to the employee, concluding that he was a prevailing party within the meaning of G.L. 1956 § 28-9-19(c).  On appeal, the Supreme Court affirmed the judgment confirming the award, concluding, as did the arbitrator, that the contract provision mandating a written response within 15 days of receipt was clear and unambiguous.  However, that portion of the award granting attorneys’ fees to the employee is vacated; the employee is not a party to the arbitration and is not entitled to an award of attorneys’ fees.

State v. Troy Lassiter, No. 99-434 (December 18, 2003)

The judgments of conviction against the defendant, Troy Lassiter, for murder, conspiracy to murder and assault with intent to murder are vacated.  The trial justice erroneously permitted the state to present police testimony that impermissibly bolstered the testimony of the state’s only eyewitness.  The Supreme Court concluded that opinion testimony by a police detective stating his belief and the basis for believing that the witness was untruthful when he initially stated that he was unable to identify the perpetrators was prejudicial error that warranted reversal of the judgments of conviction.  Moreover, out-of-court statements of the decedent that implicated the co-defendants in prior criminal conduct are not relevant to prove that defendant engaged in a conspiracy absent proof of an existing conspiracy and proof that defendant knew about the prior criminal acts.

In the Matter of Charles H. DiLuglio, No. 03-485 (December 17, 2003)

The Supreme Court reviewed a petition for discipline filed by Disciplinary Counsel, regarding the conduct of the respondent, Charles H. DiLuglio.  The bases for the petition were DiLuglio’s actions regarding a "settlement" of a civil litigation matter wherein he signed his client’s name to a quit claim deed, notarized the same, and recorded the deed in the land-evidence records of the town of Charlestown.  DiLuglio entered a plea of nolo contendere to the criminal charges that arose from his actions and reached an agreement with his former client to compensate her for the value of her lost land and associated legal fees.  The Court held that DiLuglio had presented sufficient evidence of mitigating factors to allow it to conclude that his continued practice of law would not be subversive of the public interest.  But the Court suspended DiLuglio from the practice of law for three months, at the conclusion of which his ability to practice law will be automatically reinstated.

In the Matter of Kenneth M. Levine, No. 03-591 (December 17, 2003)

The Supreme Court affirmed the recommendation of the Supreme Court Disciplinary Board, and thereby publicly censured the respondent, Kevin M. Levine.  In his pro hac vice application, respondent, a member of the bar of the Commonwealth of Massachusetts, submitted under oath that no disciplinary proceedings or criminal charges had ever been instituted against him.  In fact, the Massachusetts Board of Bar Overseers recently filed a Petition for Discipline against respondent.  The Supreme Court, therefore, publicly censured respondent for violation of Rules 3.3(a)(1) and 8.l4(c) of the Rules of Professional Conduct.

Esther Hardguittini, et al v. City of Providence et al, No. 02-483 (December 17, 2003)

The Supreme Court held that plaintiffs could not recover uninsured motorist benefits from the defendant insurer because the plaintiffs were unable to show that the alleged tortfeasor was an uninsured, underinsured, or a hit-and-run driver.  Although the plaintiffs had the opportunity to obtain basic identifying information about the alleged tortfeasor, they failed to do so, instead relying solely on the police report as the source of this information.  When the police later lost or misplaced this accident report, the defendant insurer was not required to bear the brunt of the plaintiffs’ failure to obtain information identifying the alleged tortfeasors and the vehicle he was operating when the accident occurred.

State of Rhode Island v. Rhode Island Employment Security Alliance, Local 401, SEIU, AFL-CIO, No. 02-625 (December 12, 2003)

The judgment of the Superior Court confirming an arbitration award in favor of the defendant, Rhode Island Employment Security Alliance, Local 401, SEIU, AFL-CIO (Local 401), is vacated.  The Supreme Court held that the arbitrator exceeded his powers in finding that an arbitration award rendered in favor of another collective bargaining unit triggered a letter of understanding (parity letter) that obligated the plaintiff, State of Rhode Island, to pay to Local 401 employees any negotiated wage increases provided to any other unionized groups.  The Court concluded that the trial justice erred in refusing to vacate the award and in confirming the award.  Notwithstanding that the parties may have agreed to expand the arbitrator’s authority and permit the arbitrator to consider principles of grievance arbitration in rendering his award, an arbitration proceeding is not a contract negotiation.  The contract provision containing the parity letter plainly and unambiguously provided that the state’s obligation to pay additional wages to Local 401 employees was triggered when "an improvement in wages or benefits [is] negotiated by the Department of Administration with other unionized groups[.]"  Accordingly, the award of the arbitrator did not draw its essence from the contract nor was it a rational result.

Anthony J. DeCiantis, Sr. v. Rhode Island Department of Corrections, et al, No. 02-187 (December 12, 2003)

The plaintiff, an inmate at the Adult Correctional Institutions, filed suit in Superior Court seeking declaratory and injunctive relief against State of Rhode Island mandating the director of the Department of Corrections (director) to reclassify plaintiff to a minimum security inmate-classification.  The trial justice granted the state’s Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief may be granted.  The Supreme Court affirmed the judgment and rejected plaintiff’s argument that by granting the motion the trial justice violated the law of the case.  Further, in accordance with Bishop v. State, 667 A.2d 275 (R.I. 1995), the director has unfettered discretion in inmate-housing classification decisions. However, where, as here, the director consistently overrules a recommendation from the prison’s classification board, the inmate is entitled to know the reasons for the director’s decision.  The judgment is affirmed. 

In Re Douglas F., No. 02-589 (December 12, 2003)

The judgment of the Family Court terminating the rights of the respondent/father to his son is affirmed.  The Court declined to consider respondent’s allegation of bias on the part of the trial justice because it was not raised in the proceeding below and is not properly before the Court.  The argument of the respondent that termination of his parental rights after a finding of unfitness was error is without merit.  The record discloses abundant evidence to support the conclusion of the trial justice that respondent is unable to properly parent his child.  The respondent has never provided for the child emotionally or financially.  The child has resided with respondent’s step-mother for most of his life and is in a stable, pre-adoptive home.  Accordingly, the judgment of the Family Court is affirmed.

Nellie S. Francis v. Joshua Brown, No. 02-464 (December 4, 2003)

The plaintiff alleged damages from the negligent maintenance of trees adjacent to her property.  The Superior Court properly granted the defendant landowner’s motion for judgment as a matter of law.  No issue of fact remained for jury consideration because plaintiff, acting pro se, failed to present sufficient proof of ownership, negligence, proximate causation, or damages.  The trial justice did not abuse his discretion in ruling on the admission or exclusion of evidence at trial.  Likewise, neither the trial justice nor other hearing justices involved in this case abused their discretion in ruling against plaintiff on various pretrial motions, including the grant of Sup.Ct.R.Civ.P. Rule 11 counsel fees to defendant for plaintiff’s inappropriate and duplicative objections, or the denial of plaintiff’s request to amend the complaint for a second time.      

State of Rhode Island v. Robert Silvia, No. 02-164 (December 4, 2003)

This is an appeal from a finding that defendant had violated the terms and conditions of his probation.  The Court concluded that there was existed satisfactory evidence from which to conclude that defendant made felonious threats and committed an unjustified homicide while serving the suspended portion of his sentence for first-degree sexual assault.  Consequently, the trial justice did not act arbitrarily or capriciously in finding that defendant had violated the terms and conditions of his probation.

Paul Anjoorian v. Arnold Kilberg, et al, No. 01-356 (December 4, 2003)

The defendant, Arnold Kilberg, appealed from a Superior Court judgment wherein the plaintiff’s, Paul V. Anjoorian’s, shares of stock in Fairway Capital Corporation were valued by a court appointed appraiser. Fairway is engaged in the business of making and servicing small business equity loans. Anjoorian, a 50-percent shareholder of Fairway, sought dissolution of the company pursuant to G.L. 1956 § 7-1.1-90. Kilberg was not a shareholder in Fairway, but only its "investment advisor." The shareholders filed a notice of election to purchase Anjoorian’s shares pursuant to G.L. 1956 § 7-1.1-90.1. The trial justice adopted the appraiser’s valuation figure and entered judgment for Anjoorian. Kilberg, but not the shareholders, appealed the judgment.

The Court affirmed the Superior Court judgment. In affirming the judgment, the Court noted that Kilberg did not fulfill the requirement that he present those parts of the record necessary for the Court to review the trial justice’s decision. Given the incompleteness of the record, the Court had no choice but to reject Kilberg’s appeal and affirm the Superior Court. The Court also held that the finding of an appraiser in valuing shares of stock is to be undisturbed so long as the appraiser did not overlook material evidence when ascertaining the full and fair value of stock. 

In Re Tara P. et al, No. 02-600 (December 4, 2003)

A Family Court justice did not abuse his discretion in denying petitions for three "open adoption" decrees where said decrees did not conform with the mandates set forth in G.L. 1956 § 15-7-14.1(a).  Furthermore, the record supports termination of respondent mother’s parental rights for unfitness by reason of her chronic substance abuse.

RICO Corporation v. Town of Exeter, et al, No. 03-3 (December 4, 2003)

The Superior Court did not abuse its discretion when it denied the plaintiff’s motion to amend the complaint and entered judgment in favor of the defendant.  The matter was before the Superior Court on remand from this Court under explicit directions to determine whether plaintiff’s predecessor-in-interest held a sand and gravel earth removal license prior to the time that the subject land was zoned for residential purposes in 1977.  Evidence of licensure would have resolved the issue of whether the plaintiff acquired a valid, preexisting nonconforming earth removal use when it purchased the land in 1989.  The trial justice did not err by finding in favor of the defendant without conducting the mandated trial because the plaintiff conceded that a license had not been obtained during the relevant time period and a trial would therefore have been futile.                  

Shannon Rivers v. American Commerce Insurance Company, et al, No. 02-582 (December 4, 2003)

After granting a petition for a writ of certiorari the Supreme Court quashed the order of the Superior Court denying the defendant insurance company’s motion for summary judgment.  The plaintiff, injured in an automobile accident, filed suit against the defendant pursuant to R.I.G.L. § 27-7-2 after service of process was returned non est inventus against the defendant’s insured.  The defendant sought summary judgment in its favor for plaintiff’s personal injury claim on the basis that suit was commenced against it after the three-year limitations period had run, in violation of R.I.G.L. § 9-1-14(b).  The motion justice ruled that plaintiff’s suit was timely commenced because the original claim against the insured was filed within three years of the accident and suit against defendant was filed after service of process was returned non est inventus but within the 120-day service of process allowance period for the original claim, as provided by the Superior Court Rules of Civil Procedure Rule 4(l).  The Supreme Court disagreed and held that suit was filed out of time because the direct action against the defendant was filed more than three years after the date when the injuries were sustained.  The Court concluded that Rule 4(l) had no bearing on the timeliness of the commencement of suit, even though suit against the insured could not occur until a return of service non est inventus against the insured.           

State v. Robert Zmayefski, No. 99-266 (December 3, 2003)

Following a jury trial Robert Zmayefski (defendant) was convicted of breaking and entering, possession of marijuana and resisting arrest.  The defendant appealed, claiming his right to a speedy trial had been violated and that the trial justice erred is denying his motion to acquit and his motion for new trial.  The Supreme Court held that defendant’s right to a speedy trial had not been violated because defendant never asserted his right and most of the delay was attributable to defendant.  The motion to acquit was not reviewed because defendant failed to make a motion at the close of his case.  The Court affirmed the trial justice’s refusal to order a new trial, holding 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, even though the evidence against him was mainly circumstantial. 

Antonio Machado v. State of Rhode Island, No. 02-474 (November 26, 2003)

The defendant entered nolo contendere pleas to one felony (breaking and entering) and two misdemeanors.  The trial justice warned the defendant that because he was a noncitizen, his plea might have immigration consequences.  Thereafter, the defendant appealed the Superior Court’s denial of his application for post-conviction relief, claiming that the trial justice committed error by not properly apprising him of the specific immigration consequences.  The Supreme Court held that the trial court did not properly administer the warnings mandated by the newly amended G.L. 1956 § 12-12-22, which now require the court to inform a non-citizen defendant that a plea of nolo contendere or guilty may result in deportation, exclusion of admission to the United States, or denial of naturalization. A generalized reference to potential immigration consequences does not give adequate notice to a defendant of the specific immigration actions that he or she may face by entering a plea.  Accordingly, the Court reversed the trial court’s denial of the defendant’s application for post-conviction relief and remanded the case with direction to vacate the plea.

Shelter Harbor Fire District v. Charles E. Vacca, in his Capacity as Tax Assessor, Town of Westerly, No. 03-17 (November 26, 2003)

The defendant, Charles E. Vacca, acting in his capacity as tax assessor for the town of Westerly, appealed a judgment holding that certain property owned by Shelter Harbor Fire District (Shelter Harbor) was exempt from taxation in 1999.  The defendant argued that the trial justice erred in her interpretation of the private and public acts at issue.  Additionally, the defendant appealed the denial of a counterclaim.  The Supreme Court examined the clear and ordinary language of Shelter Harbor’s amended Act of Incorporation and affirmed the lower court’s judgment that Shelter Harbor’s non-commercial properties were exempt from state and local taxes in 1999.  Furthermore, the Court held that Mr. Vacca’s counterclaim was compulsory, and therefore was waived because it was not asserted in the first responsive pleading.  Accordingly, the Court affirmed the judgment of the Superior Court.

State v. Damien McGuy, No. 00-264 (November 25, 2003)

On the defendant's appeal from his conviction for second-degree murder, the Supreme Court held that the trial justice did not err in refusing to instruct the jury on the lesser-included offense of voluntary manslaughter because the evidence did not warrant such an instruction.  The defendant, Damien McGuy, was not adequately provoked when the victim allegedly touched defendant's face and brandished a gun without pointing it an him.  Although the defendant testified that he was afraid that the victim might shoot him, this testimony, by itself, was insufficient to show that the defendant killed the victim in a heat of sudden passion in response to adequate provocation.  The Supreme Court also held that the state did not violate the constitutional prohibition against placing a defendant in double jeopardy for the same offense because the charges of murder and of committing a crime of violence while armed each required proof of a fact that the other crime did not.

State v. Marc Dumas, No. 02-165 (November 25, 2003)

360 Thames Street Condominium v. The Landing Development Company, et al, No. 01-286 (November 21, 2003)  (Corrected)

The parties in this parking easement case filed cross appeals from a judgment entered after a nonjury trial in the Superior Court.  The trial justice did not misapply the law, overlook or misconceive evidence or make factual findings that were clearly wrong in declaring that the easement clearly and unequivocally required defendants to pay its proportion of the expenses, including property taxes, of maintaining and operating the burdened property, did not require termination of the easement for failure to pay those expenses, and did not require the establishment of a sinking fund.  The trial justice did not err in calculating defendants’ fair share of the expenses but erroneously ordered the defendants to refund tax expenses from January 1, 1992 instead of July 1, 1992. 

Glimaco Guzman, et al v. Jan-Pro Cleaning Systems, Inc., et al, No. 02-712 (November 21, 2003)

In this breach of contract action, the trial justice did not err in finding defendants had committed fraud under the Franchise Investment Act where they knew that they had no ability to fulfill their promises under the agreement.  Consequently, it was not error to award lost profits instead of limiting damages to a refund of the franchise fee as provided by the liquidated damages provision of the franchise agreement.  The trial justice’s actual calculation of lost profits was erroneous because it did not take anticipated expenses into account.  The case is remanded to the Superior Court for a proper determination of the net lost profits, including their present-day value, upon the presentation of appropriate evidence.

State v. Firlando Rivera, No. 01-13 (November 19, 2003) Corrected

The trial justice correctly denied defendant’s motion for a new trial after a jury found defendant guilty of first-degree murder and various firearm charges.  The trial justice properly performed the required analysis as enunciated in State v. Banach, 648 A.2d 1363 (R.I. 1994) and carefully articulated the facts and credible testimony of witnesses on which he relied for his decision.  He deliberately addressed and dismissed defendant’s two contentions that the evidence was insufficient to prove defendant’s identity or deliberate premeditation during the murder.  The trial justice did not overlook or misconceive material evidence, nor was he otherwise clearly wrong in agreeing with the jury that defendant was guilty beyond a reasonable doubt.  

State v. Michael Rocha, No. 02-402 (November 19, 2003)

State v. Michael Gehrke, No. 01-386 (November 18, 2003)

The defendant was convicted of breaking and entering into the home of his former girl friend.  On the second day of trial, defendant attempted to call a witness who he did not disclose during discovery.  The defendant claimed he did not disclose the witness’s identity because he did not learn of her proposed testimony until the day before trial and did not directly speak with her until the first day of trial.  The trial justice precluded the witness from testifying as a sanction for defendant’s discovery violation.  On appeal, defendant argued that his conviction violated his Sixth Amendment right to present witnesses on his behalf.  Concluding that preclusion of the witness’s testimony was an appropriate sanction for defendant’s intentional discovery violation, the Supreme Court affirmed the conviction.  

In re Marcella, No. 01-471 (November 14, 2003)

The judgment of the Family Court terminating the parental rights of the respondent-mother to her daughter, Marcella, is affirmed.  The trial justice gave adequate consideration to respondent’s recent efforts at sobriety and concluded that these efforts were too little and too late as to this child.  The refusal of the trial justice to terminate respondent’s parental rights to her remaining two children was not error and is not relevant to the issues before the Court.  The trial justice considered the best interest of each child independently and determined that termination of respondent’s parental rights to Marcella was in that child’s best interest.    

State v. David Roberts and Babatunde Akinjobe, No. 02-405 (November 14, 2003)

The judgments of conviction against the defendants for several felony offenses, including murder and conspiracy to murder, are affirmed.  The defendants challenged the denial of their motions to dismiss the indictments due to the state’s failure to preserve exculpatory evidence, the automobile in which the decedent was sitting when he was murdered.  Based on the dubious probative value of evidence of a trajectory pattern in a vehicle into which multiple gunshots were fired, and the defendants’ failure to prove that the state acted in bad faith, the defendants have not established a due process violation.  Further, because the defendants failed to prove that the state acted negligently in entrusting the vehicle to a towing company, a lost evidence instruction was properly denied.

Jose Cruz v. Town of North Providence, No. 03-68 (November 6, 2003)

The Supreme Court affirmed a Superior Court judgment finding, as a matter of law, that the defendant, the Town of North Providence, was not liable under the doctrine of respondeat superior for a police officer’s alleged assault and battery upon a motorist who the police had arrested for driving while intoxicated.  Noting that the plaintiff motorist had neglected to name the individual officer as a defendant, the Supreme Court held that the plaintiff’s evidence was insufficient to prove that the police officer’s alleged misconduct was the product of a practice or policy promulgated or implemented by an authorized superior officer or by the governing body of the municipality.  In addition, the Supreme Court declined to address plaintiff’s negligent-hiring, -training, and -supervision theories because plaintiff raised these issues for the first time on appeal.

State v. Brian R. Piette, No. 02-580 (November 5, 2003)

The Supreme Court affirmed a hearing justice's decision to revoke the defendant's probation.  On appeal, the defendant challenged the sufficiency of the evidence to support that adjudication.  The Court held that the evidence presented at the hearing, which showed that the defendant was in possession of and had been operating a stolen motor vehicle, was sufficient for the hearing justice to determine that the defendant had been lacking in the required good behavior expected and required of a person on probation.  The state argued that the defendant's subsequent plea of nolo contendere to possession of a stolen motor vehicle foreclosed his ability on appeal to challenge the sufficiency of the evidence before the hearing justice.  But the Court held it was not necessary to consider the effect of the later nolo plea because ample other evidence existed to support the hearing justice's determination.

State v. Paul Campbell, No. 02-411 (November 4, 2003)

The Supreme Court held that the state provided the defendant, Paul Campbell, in his capacity as an alleged probation violator, with adequate notice under Rule 32(f) of the Superior Court Rules of Criminal Procedure when it attached the relevant police reports detailing the defendant's alleged improper conduct to the notice in question.  The Supreme Court also held that the hearing magistrate did not err in refusing to hold a separate hearing to determine whether the defendant's custodial statement that he provided to the police was the result of police coercion because the exclusionary rule does not apply to probation-revocation proceedings.  In any event, the defendant offered no evidence of any coercion at the revocation hearing.  Consequently, the Supreme Court affirmed a Superior Court judgment revoking the defendant's probation, concluding that the magistrate did not act arbitrarily and capriciously in finding that the defendant violated the terms of his probation.

Evan J. Connjorklund, et al, No. 02-0720 (October 31, 2003)

The plaintiff, Evan J. Connor (plaintiff), brought suit against defendants, Paul Bjorklund (Paul) and Evelyn Bjorklund after Paul rear-ended plaintiff’s automobile while he was stopped at a traffic light.  The jury returned a verdict in favor of defendants, finding that plaintiff was solely responsible for the rear-end collision.  The trial justice granted plaintiff’s motion for new trial because he found that Paul was not a credible witness.  Therefore, the trial justice concluded that Paul was unable to rebut a presumption of his negligence as the driver of a vehicle that rear-ended another.  The Supreme Court affirmed because the trial justice properly assessed Paul’s credibility and applied the presumption of negligence against defendants.   

Granoff Realty II Limited Partnership v. Thomas Rossi, in his Capacity as Tax Assessor for the City of Providence, No. 02-344 (October 29, 2003)

The Supreme Court affirmed the Superior Court’s entry of summary judgment in favor of the defendant, Thomas Rossi, in his capacity as tax assessor for the city of Providence, thereby rejecting a commercial property owner’s challenge to a municipal tax assessment.  The Court held that

(1)        the taxpayer’s failure to file a signed and notarized account pursuant to G.L. 1956 § 44-5-16 precluded it from challenging the assessment;

(2)        the city’s mere act of accepting the unsigned account for filing did not estop the city from raising the insufficiency of the account as a pretrial defense;

(3)        the taxpayer did not properly preserve its contentions regarding the alleged unconstitutionality of the municipal property-tax statute because it did not notify the Attorney General of any constitutional challenge to the statute and it did not raise these constitutional issues before the Superior Court; and

(4)        the taxpayer could not challenge an alleged over assessment without filing a proper account merely by showing that the property values used in the challenged assessment were greater than the assessed values used in the preceding year’s assessment.  Rather, the taxpayer also had to show that the property had been assessed at a value in excess of its full and fair cash value, that the property’s tax assessment exceeded the uniform percentage of the assessed value for other taxable property, or that the assessment was illegal.

  
Rhode Island Judiciary 2011 Website Use Policy