Casino Advisory to the Governor - August 12, 2004
At the request
of His Excellency Donald L. Carcieri, Governor of the State of
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
. 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
"Shall there be a casino in the Town of
operated by an Affiliate of Harrah’s Entertainment in association with the
Narragansett Indian Tribe?"
(referendum question). Section
The Governor’s request asked: "Do
the question and the legislation’s establishment of a privately-operated
casino violate the [
] 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
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
, it does not repeal the
contained in art. 6,
The justices read art. 6
and art. 22 together and
(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
Therefore, because the
Casino Act and the
violated sec. 15, both
State v. Raymond Lynch Docket no: 1999-0327-Appeal (August 11, 2004)
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.
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
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.
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
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
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
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
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
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
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
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
Garden City Treatment Center, Inc. v. Coordinated Health Partners, Inc.,
et al, No. 03-517 (July 14, 2004)
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
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
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
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
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 §
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
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
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
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,
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
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
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
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
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
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:
- 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.
- The State violated Rule 16 of the
Supreme Court Rules of Civil Procedure.
- The contents of an envelope sent by
defendant to his ex-wife (victim), which were admitted into
evidence, constituted inadmissible hearsay and were unduly
- The contents of the two letters
defendant wrote to victim, which were admitted into evidence,
constituted inadmissible evidence of prior bad acts.
- 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.
- The testimony of a Superior Court
justice and of a District Court judge constituted inadmissible
evidence of prior bad acts, hearsay, and bolstering.
- The testimony of the sheriff whom
defendant assaulted was prejudicial and irrelevant.
- 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.
- The trial justice improperly
restricted certain of the questions posed by defendant on
cross-examination of defendant victim.
- The trial justice improperly denied
defendant’s motion to suppress a statement he made to a Rhode Island
State Police detective.
- There was insufficient evidence to
support the extortion and blackmail convictions because defendant’s
threats were not shown to be genuine.
- There was insufficient evidence to
support the convictions for threatening a public official because
the threats were not delivered directly to the officials.
- The trial justice gave incorrect jury
instructions on the charges of threatening a public official,
extortion and blackmail, and stalking.
- The trial justice failed to adequately
answer a question from the jury.
- 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.
- Several discrepancies exist between
the transcript of defendant’s sentencing by the trial justice and
the Judgments of Conviction and Commitment.
- The trial justice improperly denied
defendant’s motion for a judgment of acquittal and motion for new
- The defendant is entitled to have his
ineffective assistance of counsel claim considered on direct appeal.
The Supreme Court held that:
Because defendant failed to raise his double jeopardy
argument prior to trial, it is waived.
The defense counsel waived the Rule 16 objection at trial.
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.
The contents of the letters to victim do not constitute
evidence of prior bad acts.
The testimony of the Family Court magistrate was not
prejudicial and irrelevant, and did not constitute bolstering, or
evidence of prior bad acts.
The testimony of a Superior Court justice and a District
Court judge did not constitute inadmissible evidence of prior bad acts,
hearsay, or bolstering.
The testimony of the sheriff whom defendant assaulted is
not unduly prejudicial.
The testimony of a detective from the Rhode Island State
Police did not constitute inadmissible hearsay.
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
The trial justice properly denied defendant’s motion to
suppress a statement he made to a Rhode Island State Police detective.
Because defendant’s threats were shown to be genuine,
there was sufficient evidence to support the extortion and blackmail
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.
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.
Because the defense counsel failed to remind the trial
justice of the requested answer to the jury’s question, this question is
The amendment of the complaint did not prejudice
defendant’s substantive rights, and, therefore, is permissible.
The trial justice’s denial of defendant’s motion for a
judgment of acquittal and motion for new trial was proper.
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
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
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
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
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
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
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
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
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’
Clifford McFarland et al v. Michael Brier et al, No. 02-500 (June
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
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
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
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
Peter A. Carnevale et al v. Joan L. Dupee, No. 03-259 (June 15,
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,
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
David Illas, Jr. et al v. Theodore Przybyla et al, No. 02-396 (June
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
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
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
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
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
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
The defendant, Donna Viti (the
defendant), was injured in an accident while riding on her husband’s
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
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
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
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 §
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
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
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 §
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)
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
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
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
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)
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
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,
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
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
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
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
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
Travelers Property & Casualty Corporation v. Old Republic Insurance
Company, No. 02-442 (May 10, 2004)
Property and Casualty Company (Travelers) appealed from a Superior Court
grant of summary judgment in favor of defendant, Old Republic Insurance
Republic), on a complaint for declaratory judgment. Travelers contended
that the hearing justice erred in failing to rule that
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
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,
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
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
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
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
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.
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
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)
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
in the hope of receiving permanent employment
as a police officer for
. However, he failed the swimming test, which
precluded his graduating from the municipal academy. The
did not require its recruits to pass a swimming
struck an agreement with the City of
in which Phelps could attend the
academy, provided certain conditions were met.
also informed the Police Officers’ Commission
on Standards and Training (the commission) of the agreement for Phelps’s
opposed the agreement and sought a declaratory judgment that training at
the municipal academy is mandatory for all officers except those for
, 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,
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
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
r on a construction project with the State of
(state), from a Superior Court final judgment in favor of Peerless
Insurance Company (Peerless). An
employee of Pasquazzi Brothers, Inc. (Pasquazzi), a subcontrac
r on the project, was injured while working on the project and sued Lusi
for negligence. Lusi filed a
Superior Court declara
ry judgment against Peerless, the insurer for Pasquazzi, seeking a
defense and indemnification with respect
the employee’s claim. The Supreme
Court held that the relevant contract language did not evidence a clear
intent by Peerless and Pasquazzi
designate Lusi as an additional insured under the terms of the Peerless
insurance policy with respect
claims alleging Lusi’s own negligence.
The Court held that the incorporation and flow-down provisions of
the contracts at issue failed
add Lusi as an additional insured
its Peerless insurance policy for this type of claim.
The Court also ruled that Lusi failed
procure an "appropriate agreement" from Pasquazzi
add Lusi as an additional insured under the Peerless policy
cover negligence claims against Lusi.
In addition, the Supreme Court decided that Lusi failed
provide evidence of any contract provision from which the Court could
what extent the primary contract required Lusi
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
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
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
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
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
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
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.
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
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
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
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
Jeffrey L. Vigneaux v. Lorraine T. Carriere, No. 03-421 (April 8,
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.
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
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
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
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)
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
Specifically, the Court held that:
Mr. DiPrete was subject to pension revocation under PEPRRA
although he committed his many crimes dishonoring his office of Governor
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.
The failure to join Mrs. DiPrete as an indispensable party
did not require dismissal of this revocation action against Mr. DiPrete.
The Retirement Board’s complaint seeking pension
revocation under PEPRRA stated a claim upon which relief can be granted.
The General Assembly did not supercede PEPRRA in order to
maintain preferable tax status of the state’s retirement system.
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.
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
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
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.
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).
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
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
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
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
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
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,
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
Kenneth A. Castellucci v. Mark A. Battista, No. 02-687 (March 18,
The Court affirmed a judgment of
liability and a remitted award of compensatory and punitive damages
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
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,
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
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 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
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,
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’
In re: New England Gas Company, No. 02-279 (March 5, 2004)
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 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
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
Edmond J. Brown v. State of Rhode Island, No. 02-0393 (March 3,
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)
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 §
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
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
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
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,
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
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
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,
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
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
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
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
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)
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 §
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
Casco Indemnity Company v. Kenneth Gonsalves, No. 03-159 (January
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,
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
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
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
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
n Trust Company of Westerly (hereinafter "the bank").
The plaintiffs alleged that the bank improperly used
rmation from an R&L loan application
issue a loan
a business competi
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
present any evidence of a mutual agreement with the bank about the
bank’s internal use of the
rmation contained in their loan application.
The Court held that, in the absence of an agreement
the contrary, a bank violates no duty
a loan cus
mer when it uses
rmation received from that borrower in deciding whether
make a loan
another prospective borrower. The
Court held that the plaintiffs failed
establish a prima facie case for
interference-with-contractual-relations by failing
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
show any facts that would support an underlying intentional
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
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
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
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
The Supreme Court affirmed the order of
the Family Court suspending the defendant-father’s visitations with
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
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
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
office of a
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
to warrant the exercise of jurisdiction over them. The Court affirmed
the trial justice’s decision that
could not exercise either specific or general jurisdiction over Harris
and O’Melveny. The Court held that the
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
. Furthermore, the Court held that Harris and O’Melveny had insufficient
to support the exercise of general jurisdiction where neither the lawyer
nor the law firm made regular appearances in
on behalf of
Virginia M. Hanley et al, No. 02-535 (December 19, 2003)
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
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
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
In the Matter of Charles H. DiLuglio, No. 03-485 (December 17, 2003)
Court reviewed a petition for discipline filed by Disciplinary
Counsel, regarding the conduct of the respondent, Charles H.
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
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
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
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
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
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,
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
Paul Anjoorian v. Arnold Kilberg, et al, No. 01-356 (December 4,
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 §
Furthermore, the record supports termination of respondent
mother’s parental rights for unfitness by reason of her chronic
RICO Corporation v. Town of Exeter, et al, No. 03-3 (December 4,
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
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
Antonio Machado v. State of Rhode Island, No. 02-474 (November 26,
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)
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)
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
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
Granoff Realty II Limited Partnership v. Thomas Rossi, in his Capacity
as Tax Assessor for the City of Providence, No. 02-344 (October 29,
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
The Court held that
the taxpayer’s failure to file a signed and notarized account
pursuant to G.L. 1956 § 44-5-16 precluded it from challenging the
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;
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
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