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Rhode Island Judiciary > Courts > Supreme Court > OpinionsOrders > Opinions (2004-2005)  


Opinions (2004-2005)

 
Supreme Court
Published Opinions 2004 - 2005 Term

In re Advisory Opinion to the House of Representatives (Casino II) No. 05-134 (September 19, 2005)

At the request of the Honorable House of Representatives of the State of Rhode Island and Providence Plantations, Justices of the Supreme Court gave an advisory opinion on the constitutionality of pending legislation dealing with a proposed casino in the town of West Warwick.  The proposed enactment at issue, entitled "Establishment and Extension of Gambling Activities and Other Facilities," would amend legislation that was passed by the General Assembly in 2004 and codified at chapter 9.1 of title 41 (2004 Casino Act).   The request made by the Honorable Members of the House asked: (1) whether the proposed Casino Act complied with article 6, section 15, of the Rhode Island Constitution requiring all casinos be operated by the state; (2) whether the proposed Casino Act complied with article 6, section 22 requiring a statewide and municipal referendum to become effective; (3) and (4) whether the proposed Casino Act violated the federal and state equal protection guarantees.

The Justices answered the first question in the negative, opining that the proposed Casino Act did not grant the state sufficient power to make decisions concerning all operational aspects of the gaming enterprise as required by article 6, section 15 of the Rhode Island Constitution and as interpreted in In re Advisory Opinion to the Governor (Casino I), 856 A.2d 320 (R.I. 2004).  The Justices answered the second question in the affirmative, opining that the requirements of article 6, section 22 would be satisfied if referenda questions receive local and statewide majority approval.  Finally, the Justices declined to answer the third and fourth questions relating to the federal and state equal protection clauses, because to do so would violate the prohibition against fact-finding in the context of issuing an advisory opinion.

In re Philip S., No. 04-342 (September 19, 2005)

The petitioner, an adult who was adopted as an infant, sought to learn the identity of his biological parents.  He based his claim on his understanding of the requirements of the Mormon religion.  The Family Court denied the petition, and this Court affirmed that decision, holding that the petitioner had failed to establish "good cause" for the relief that he sought.  In its opinion, the Court reiterated its view as to the great importance of confidentiality in the adoption context.

State v. Gary John, No. 03-332 (September 16, 2005)

The defendant was convicted on two counts of violating a no-contact order issued pursuant to G.L. 1956 § 12-29-4 which prohibited him from contacting his ex-wife.  As a result, he was given an enhanced sentence as a third-time offender pursuant to G.L. 1956 § 12-29-5, which is part of the Domestic Violence Prevention Act.

This Court held that the defendant could properly invoke its very recent ruling in State v. Martini, 860 A.2d 689 (R.I. 2004), which held that a conviction for "domestic disorderly conduct" cannot serve as the basis for enhancing a sentence pursuant to § 12-29-5.  Consequently, the Court vacated the defendant’s felony conviction and sentence and remanded the case for resentencing.

In addition, the Court held that the trial justice did not err in denying defendant’s Rule 29 motion for judgment of acquittal.  The Court also held that the trial justice acted consistently with the provisions of Rule 404(b) and Rule 403 of the Rhode Island Rules of Evidence when he admitted evidence of three prior incidents of contact between defendant and his ex-wife in violation of previously issued no-contact orders and when he admitted the actual prior no-contact orders which prohibited defendant from contacting his ex-wife.  Finally, the Court held that the trial justice’s instructions to the jury were legally sufficient.

Marion McAusland v. Dennis Carrier, No.  03-300 (September 2, 2005)

After a nonjury trial, the Superior Court ruled that the plaintiff had acquired a prescriptive easement over that portion of a circular driveway that was on defendant’s property (the rest of the circular driveway being on plaintiff’s property).  The Superior Court further ruled, however, that the easement was personal to the plaintiff and would terminate upon the plaintiff’s death.

After discussing the well-established legal principle that easements are presumed by the law to be permanent and not merely personal, this Court held that the Superior Court erred when it ruled that the easement in question was personal to the plaintiff.  The Court noted that the defendant failed to rebut the presumption that an easement is permanent (an "easement appurtenant").

The case was remanded to the Superior Court for further proceedings.

 

State v. Antonio Gomes, No. 02-585 (September 2, 2005)

The defendant appeals from his Superior Court jury conviction of second-degree murder.  This Court held that the District Court erred in issuing a search warrant for the defendant’s blood under G.L. 1956 § 12-5-2 as that statute was worded at the time the search warrant was issued.  Nevertheless, the admission at trial of DNA evidence that was derived from the improperly seized blood constituted harmless error beyond a reasonable doubt in view of the overwhelming independent evidence of the defendant’s guilt.  This Court further held the Superior Court did not err in granting the prosecution’s motion in limine to preclude the admission of a particular police report in view of the fact that defense counsel’s offer of proof was inadequate.  The defendant’s appellate arguments about the admissibility of certain hearsay statements under Rule 803(2) and Rule 803(3) of the Rhode Island Rules of Evidence were not raised in the Superior Court and, therefore, were waived under the "raise or waive" rule

Stanley Henshaw III v. Brendan P. Doherty et al, No. 03-526 (September 2, 2005)

The plaintiff was arrested by the state police on a charge of simple assault.  He was eventually acquitted of that charge and then sued the state and various members of the State Police for malicious prosecution, false arrest, and negligent supervision.  The Superior Court granted summary judgment in favor of all the defendants, and this Court affirmed that judgment.   The Court held that there was probable cause for the issuance of an arrest warrant at the time that the plaintiff was arrested.  The state police had been electronically monitoring a meeting between the plaintiff and an undercover state police officer, who was part of a team investigating allegations that the plaintiff was operating an illegal sex-for-hire business.  The Court held that the troubling substance of the electronically monitored conversation between the plaintiff and the undercover officer provided a more than sufficient basis for a finding of probable cause for the issuance of a warrant for the plaintiff’s arrest on a charge of simple assault.  In view of its ruling as to the probable cause issue, the Court held that the plaintiff’s allegations were properly dismissed in their entirety.

Mildred J. Bajakian v. Stephan G. Erinakes, Executor of the Will of Blanch Erinakes, No.03-488 (September 2, 2005)

This case involves a will contest between two siblings with respect to their deceased mother’s will.  A jury in Kent County Superior Court found that the mother had lacked testamentary capacity at the time that she executed the will.  This Court affirmed the judgment in favor of the plaintiff, who had challenged the will.

The Court analyzed and discussed Rule 803(3) of the Rules of Evidence which makes certain declarations about a person’s then-existing state of mind admissible as evidence under certain rigorously defined conditions.

The court also addressed the criteria which should guide determinations about the testamentary capacity of a person who has executed a will. 

In conclusion, the Court held that the pertinent issues of fact and credibility were properly referred to the jury and that there was no reason why the jury’s verdict should not be upheld

John Candido v. University of Rhode Island, No. 03-412 (September 2, 2005)

The plaintiff brought a negligence claim against the defendants, the University of Rhode Island (URI) and the Rhode Island Board of Governors for Higher Education, seeking damages for the injuries that he sustained after falling on the URI campus on the night of September 6, 1997.  After a jury found that the defendants were not negligent, the plaintiff filed a motion for a new trial, which was subsequently denied by the trial justice.  The plaintiff appealed, and this Court affirmed the order of the Superior Court denying the plaintiff’s motion for a new trial.

This Court held that the trial justice properly adhered to the standards concerning new trial motions and sufficiently articulated the basis for his finding that sufficient competent evidence existed to justify the jury’s verdict in light of the jury charge.   This Court also held that the trial justice did not overlook or misconceive any material or relevant evidence and was not otherwise clearly wrong.  Finally, this Court held that the trial justice did not err when, in his decision denying the motion for a new trial, he compared the facts of the plaintiff’s case with those in Malsen v. Cicchelli, 621 A.2d 183 (R.I. 1993

State of RI v. David Gordon (No 2004-148 C.A.) (September 1, 2005)

The defendant appealed from convictions for first-degree arson, conspiracy, and insurance fraud.  The Court denied the appeal, holding that the trial justice did not commit reversible error: (1) in finding that the defendant had waived and forfeited his right to counsel and in ordering defendant to immediately proceed to trial pro se, with standby counsel; (2) in dealing with a vaguely worded request by a private attorney concerning the possible entry of appearance on behalf of the defendant three days after the trial had commenced; and (3) in deciding not to provide the defendant with additional money in connection with his defense.  In addition, the Court held that the trial justice did not abuse his discretion: (a) in qualifying a witness for the prosecution as an expert; and (b) in permitting the prosecution in its cross-examination of the defendant to go beyond the scope of the testimony given on direct examination. 

A. Michael Marques v. Harvard Pilgrim Healthcare of New England, Inc.( 2002-103 Appeal.) (September 1, 2005)

Thomas P. Seymour, appearing pro se, appealed from the denial of his motion for summary judgment and from the grant of summary judgment in favor of the appellee, Harvard Pilgrim Healthcare of New England, Inc. ("HPHC-NE").  The Court concluded that genuine issues of material fact exist in this case in the present state of the record that precluded the granting of summary judgment in HPHC-NE’s favor.   The Court held that, in general, Title III of the Americans with Disabilities Act of 1990 (ADA) mandates that health insurers provide equal access to health insurance for all persons, regardless of disability.  The Court further held, however, that an insurance provider may deny equal health insurance coverage under the "safe harbor" provision of the ADA, on condition that the insurance provider can demonstrate that the denial of health insurance coverage was based on sound actuarial principles or that its decision was based upon actual or reasonably anticipated experience.  If the provider so demonstrates, the burden would shift back to the disabled plaintiff who would then have to prove that the insurance provider’s articulated reasons for its denial were, in fact, a "subterfuge" to evade the purposes of Title III of the ADA.  The case was remanded to the Superior Court for further proceedings.

Mary D. Croce v. State of Rhode Island, Office of Adjutant General et al.  ( No. 2002-459-Appeal.) (September 1, 2005)

 This is an age discrimination case.   The plaintiff’s primary allegation of discrimination relates to a layoff that occurred in September of 1995.  Although the plaintiff did not commence litigation until December of 1998, she claimed that the applicable statutes of limitation should not bar her claim in view of her understanding of the "continuing violation" exception that is available in appropriate circumstances in the context of the anti-discrimination statutes. After explaining the nature and extent of the "continuing violation" exception, this Court held that that exception would be inapplicable to the plaintiff’s attempt to bring the September 1995 layoff within the limitations period.  As for the other alleged acts of discrimination referenced in plaintiff’s pleadings, the Court held that summary judgment was correctly granted in the defendants’ favor.  Accordingly, the Court affirmed the summary judgment that had been granted by the Superior Court. 

State of RI v. Judith Ensey.( 2002-236-C.A.) ( September 1, 2005)

The defendant appeals from her jury conviction of driving under the influence in contravention of G.L. 1956 § 31-27-2.  This Court held that the trial justice did not err in admitting the results of a breathalyzer test, where the record reveals that the state satisfied all of the foundational requirements set forth in § 31-27-2(c).  In addition, the cautionary instruction given by the trial justice in reaction to defense counsel’s improper closing argument did not constitute a basis for reversal.

Oliver Lyons v. State of RI (No 2002-278-Appeal.) ( September 1, 2005)

The Superior Court hearing justice did not err in denying an application for post conviction relief where the applicant failed to prove that defense counsel’s tactical decision not to subpoena certain medical records constituted ineffective assistance of counsel.

Kathleen M. Gorman v. Daniel W. Gorman, No. 03-611 (August 26, 2005)

This appeal stemmed from a disagreement over the meaning of a property settlement agreement that was approved by the Family Court in connection with the parties’ divorce and was incorporated by reference into the final divorce decree.  The subsequent dispute centered around two separate stock plans in which the defendant husband was a participant.  One of those stock plans was specifically and accurately named in the agreement in question, whereas the other was not.  The Family Court found the property settlement agreement to be ambiguous and then proceeded to reform the document so that it would encompass both stock plans.  The defendant appealed.

This Court recognized that the Family Court has broad statutorily conferred power to oversee divorce proceedings and to decide whether to approve a proposed property settlement.  This Court went on to hold, however, that the Family Court erred in this instance when it found the agreement to be ambiguous; this Court held that the terms set forth in the property settlement agreement are unambiguous. 

William J. Flanagan et al. v. Marcia Blair et al., No. 04-179 (August 26, 2005)

The Supreme Court held that the motion justice in the Superior Court did not abuse his discretion under Rule 37(b)(2)(C) of the Rhode Island Superior Court Rules of Civil Procedure when he entered final judgment in the defendant’s favor after the plaintiff defied the court’s order to provide responses to the defendant’s discovery requests by a date specified in the order.

Douglas J. Pelletier v. State of RI, No. 04-74 (August 26, 2005)

 In light of this Court’s earlier decision in McKinney v. State, 843 A.2d 463 (R.I. 2004), the hearing justice erred in granting an application for postconviction relief "solely on the issue of resentencing," where there was no evidence that the sentence resulting from a negotiated plea agreement sentence was either illegal or unconstitutional.

State of RI v. Perez, No 2002-241 (August 26, 2005)

The defendant appeals from his conviction, after a jury trial, of first-degree murder for killing his mother.  The trial justice did not err in denying the defendant’s motion to sequester the state’s expert rebuttal witness where that expert’s presence was essential to the presentation of the state’s rebuttal.  In view of the fact that the characteristics and behaviors associated with both "antisocial personality disorder" and "conduct disorder" are essentially the same and that there already was testimony about the latter disorder before the jury, and considering the fact that the trial justice mitigated any potential prejudice by granting defense counsel’s request for a continuance, the trial justice did not err in allowing the state’s expert witness to testify about "antisocial personality disorder" -- even though that diagnosis had not been included in the state’s supplemental response to discovery.  The trial justice did not err in denying the defendant’s motion to suppress certain statements that he made to the police, because defendant had been read his Miranda rights and had then knowingly and voluntarily waived them before giving two statements to the police.  Moreover, in view of the overwhelming evidence against the defendant, any possible error in this regard would have been harmless beyond a reasonable doubt.  The trial justice properly denied the defendant’s motion to dismiss for lack of a speedy trial after the defendant failed to show that his right to a speedy trial had been violated.

Richard Hyatt v. Village House Convalescent Home, Inc., et al. (No 2004-25-Appeal)  (August  24, 2005)

The plaintiff appealed from a Superior Court judgment in favor of one of the defendants.  The judgment at issue was entered after the Superior Court granted the defendant’s Super.R.Civ.P. 12(b)(6) motion to dismiss the plaintiff’s complaint as it related to the defendant because the plaintiff’s complaint did not contain factual allegations sufficient to support any cause of action against the defendant.  The Court affirmed the dismissal of counts 2, 3, and 5 of the complaint, but remanded the case to the Superior Court for further litigation with respect to counts 1 and 4.

 Edward A. Raso v. Ashbel T. Wall, Jr., Director of the Department of Correction (No.  2003-73-C.A) (August 23, 2005)

The applicant appealed from the Superior Court’s denial of his application for postconviction relief. Without reaching the merits of Edward A. Raso’s argument, this Court remanded the case for a finding of whether his application for postconviction relief was barred by the doctrine of laches--since this Court has now ruled that the laches doctrine may be available in some circumstances in the context of applications for postconviction relief.

Barbara J. Davis et al v. Ford Motor Credit Co., et al, No. 04-221 (August 12, 2005)

Where an individual was alleged to have negligently operated a leased vehicle, and where there were no allegations of actual negligence on the part of the defendant lessor, both the individual and the defendant lessor constituted a single tortfeasor for purposes of the Uniform Contribution Among Tortfeasors Act.  Pursuant to the pertinent statutes and this Court’s precedents, the plaintiffs’ execution of a valid and enforceable release running to the operator of the vehicle served also to release the defendant lessor from exposure to possible vicarious liability for the operator’s action.

Donna DelSanto, Administratrix of the Estate of Geraldine DelSanto et al. v. Hyundai Motor Finance Co., et al, No. 03-227 (August 12, 2005)

Where an individual was alleged to have negligently operated a leased vehicle, resulting in the wrongful death of another person, and where there were no allegations of actual negligence on the part of the defendant lessor, both the individual and the defendant lessor constituted a single tortfeasor for purposes of the Joint Tortfeasor Act.  Pursuant to the pertinent statutes and this Court’s precedents, plaintiff’s execution of a release running to the vehicle’s operator also served to release the defendant lessor from being vicariously liable for the operator’s action.

State v. Gahlil Oliveira, No. 00-470; State v. Victor St. Hill et al, No. 00-521 (August 5, 2005)

The defendants, Gahlil Oliveira, Victor St. Hill, and Amita St. Hill, appealed from a judgment of conviction on two charges.  The Supreme Court reversed the judgment of the Superior Court with respect to the felony murder convictions, and affirmed the judgment with respect to the conspiracy convictions.

The indictment charged Gahlil Oliveira and Victor St. Hill with "murder in the first degree, to wit: murder committed during the course of the perpetration, or attempted perpetration of felony manufacture, sale, delivery or other distribution of a controlled substance otherwise prohibited by the provisions of Chapter 28 of title 21 of the General Laws of Rhode Island, in violation of § 11-23-1 of the general laws of Rhode Island, 1956, as amended (Reenactment of 1994)."  On appeal, Gahlil Oliveira and Victor St. Hill argued that the evidence presented by the prosecution at trial was legally insufficient to support their conviction of first-degree felony murder, and thus the trial justice erred by denying their motion for judgment of acquittal.  Gahlil Oliveira and Victor St. Hill asserted that no reasonable reading of G.L. 1956 § 11-23-1, the felony-murder statute, encompassed their actions because all the evidence at trial, viewed in the light most favorable to the state, demonstrated that they were unsuccessfully attempting to purchase or possess a controlled substance, not to manufacture, sell, deliver, or distribute it. The Supreme Court held that the "possession with intent to deliver" is an independent unit of prosecution under the Rhode Island Controlled Substances Act, G.L. 1956 chapter 28 of title 21, and that the Legislature did not include the statutory felony "possession with intent to deliver" within the enumerated felonies supporting a first-degree felony-murder charge.  The Supreme Court also held that attempting to acquire a substantial quantity of a controlled substance, without some further act directed at the delivery or distribution of the contraband, did not satisfy the substantial step required to constitute attempted distribution or delivery.  The Supreme Court reviewed the evidence in this case, and determined that the record was devoid of any evidence that establishes, either directly or inferentially, that Gahlil Oliveira and Victor St. Hill took any action in an effort to further distribute or deliver the cocaine.  Consequently, the Supreme Court concluded that their motions for judgment of acquittal on the first-degree felony-murder count, should have been granted.

State v. Albert Verrecchia (2001-554-C.A) (August 2, 2005)

Following our remand in State v. Verrecchia, 766 A.2d 377 (R.I. 2001), the defendant appeals from the denial of his motion to suppress evidence obtained pursuant to a search warrant.  The affidavit submitted in support of the search warrant at issue was not constitutionally flawed, and it contained ample evidence upon which to base a determination of probable cause.  In addition, the motion justice did not err in denying defendant’s request for a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), since, even if defendant’s allegations concerning alleged omissions and falsehoods were true and would therefore have to be set aside, there would remain more than sufficient untainted evidence to support a finding of probable cause.

 

State v. Kailash Mohapatra, No. 04-21 (July 25, 2005)

The defendant, Kailash Mohapatra (defendant), appeals from a jury conviction on one count of second-degree child molestation in violation of G.L. 1956 § 11-37-8.3.  He argues (1) that evidence of prior sexual misconduct involving a person other than the complaining victim should not have been admitted into evidence; (2) the trial justice should have given a limiting instruction concerning uncharged sexual misconduct involving the victim; and (3) the use of the criminal information as the verdict form violated his right to a fair trial. 

Concerning the first issue, the prior sexual misconduct was sufficiently similar and contemporaneous to support the trial justice’s conclusion that the testimony was admissible.  As for the second issue, the trial justice’s failure to give a limiting instruction did not constitute reversible error because the defendant utilized the uncharged sexual misconduct involving the victim on cross-examination and during closing argument.  Concerning the third issue, the defendant failed to properly preserve that argument for appeal.  Accordingly, we affirm. 

Tanner v E. Greenwich Town Counsel No 2002-677 (July 18, 2005)

In this case, the defendants, the Town Council of the Town of East Greenwich and its five members, in their official capacity, (hereinafter collectively referred to as "town council"), appealed from a grant of summary judgment and an award of attorney’s fees in favor of the plaintiff, Frederick S. Tanner, on his allegation that the town council appointed three people to the zoning board of review and planning board in violation of the Open Meetings Act (OMA). The plaintiff alleged that the posted notice for the disputed meeting was misleading because it listed the town council meeting as consisting of "Interviews for Potential Board and Commission Appointments," and then listed the names of potential appointees beside their respective scheduled interview times, with each interview scheduled twenty minutes apart, but failed to give any indication that the town council intended to vote on several appointments. 

The Supreme Court affirmed the grant of summary judgment and held that the plaintiff had standing to challenge the violation of the OMA; that, notwithstanding the town council’s subsequent renotice and reappointment of the disputed appointees, the issues of whether the town council in fact violated the OMA and, if so, whether it did so willfully or knowingly were still justiciable controversies; that the requirement that a public body provide supplemental notice, including a "statement specifying the nature of the business to be discussed," obligates that public body to provide fair notice to the public under the circumstances, or such notice based on the totality of the circumstances as would fairly inform the public of the nature of the business to be discussed or acted upon; and that the original notice failed to comply with this standard. 

In re Court Order Dated October 22, 2003, No. 03-613 (July 19, 2005)

 Just prior to the start of a high-profile murder trial, the trial justice entered a restrictive order prohibiting the publication of specified identifying information and/or visual depictions of the state’s witnesses in the case.  Soon after the motion was granted, the petitioners, a local newspaper and one of its reporters, and a local television media outlet and several of its employees, allegedly violated the order by publishing certain information about witnesses in the trial.  In response, the state began its efforts to bring contempt charges against the petitioners, and the trial court ordered them to appear in order to show cause why they should not be held in contempt.  On a writ of certiorari to the Court, the petitioners requested that the Court review the restrictive order and the show cause orders, and argued that the restrictive order was an unconstitutional infringement on their First Amendment rights.  Without fully addressing the constitutionality of the restrictive order, the Court quashed both the restrictive and show cause orders, finding that the petitioners had been denied due process when they were not given notice of the order and its contents, and when they were not fully aware that the order was directed at them.  Because the process was flawed, the Court determined that it would be unjust and inappropriate to sanction a contempt hearing.  In addition, the Court reiterated its concerns about the constitutional implications of trial court orders that constitute prior restraints on speech or publication. 

Newport Realty, Inc. v. Patrick Lynch, in his capacity as Attorney General of the State of Rhode Island, No. 03-363 (July 19, 2005)

This is an action to quiet title to several streets located in Newport, identified as North Commercial Wharf, Scott’s Wharf, and an unnamed connecting street.  The plaintiff, Newport Realty, Inc., as owner of all the property that abuts these streets, claimed that the streets were private rights-of-way that had merged by virtue of its unity of title.  The State of Rhode Island is the only defendant before the Court on appeal. 

The trial justice, in a written decision, declared that the issue to be decided was the intent of the grantor when it filed a development plan but that such proof is almost always "non-existent."  He proceeded to allow and consider parol evidence and extrinsic evidence, without a finding that the development plan, a recorded instrument, was ambiguous.

Adams v Christie's No 2004-325 Appeal (July 18,2005)

This appeal concerns a challenge to the Providence Athenaeum’s proposed sale of its copy of the Double Elephant Folio of John James Audubon’s Birds of America (Audubon folio) at public auction, pursuant to a consignment agreement with Christie’s, Inc.  The plaintiffs, fifty-eight named individuals, all shareholders/members of the Providence Athenaeum, alleged in their complaint that the officers and directors of the Athenaeum were unlawfully elected in violation of the corporate charter.  They further accused the officers and directors of financial management and breach of fiduciary duty.  After a thirteen-day jury-waived trial, the trial justice denied the plaintiffs all requested relief, dismissed the complaint in its entirety, and awarded the defendants their costs.

 

In re MacKenzie C. No 2003-128 ( July 18, 2005)

The Department of Children, Youth and Families (DCYF) appealed from a Family Court decree dismissing an abuse petition filed against the parents of  a child who suffered nineteen fractures before she was nine-weeks-old.   In his original decision, the trial justice rejected the parents’ proffered medical explanation of the child’s injuries, and made a finding, based on the inference that the parents were the principle caretakers of the child, that the parents had caused or allowed to be caused the child’s injuries.  Three years later, however, the trial justice reopened the case, heard new evidence, and reversed his finding of abuse.  After reviewing the extensive record, the Supreme Court held that the trial justice did not err in reopening the case, admitting the testimony of the parents’ expert witness, and dismissing the petition upon reconsideration.  The Supreme Court declined to address several additional issues raised by DCYF in their appeal, as the disposition of the abuse petition rendered them moot.  

Kathy Dalo v. Judy Thalmann et al, No. 03-403 (July 13, 2005)

This appeal arises from a claim of damages brought by the holder of a defaulted promissory note against one of the makers, the defendant, Judy Thalmann.  After the Superior Court entered summary judgment on the issue of liability and, after a bench trial, entered judgment for damages in favor of the holder, the defendant appealed.  The Supreme Court affirmed the grant of summary judgment on the issue of liability.  The Supreme Court vacated the judgment as to damages, holding that an action for damages on a promissory note provides the parties with a right to a jury trial and, after a jury trial is demanded, it must be provided unless waived pursuant to Rule 39 of the Superior Court Rules of Civil Procedure.  The defendant did not waive appellate review of her right to a jury trial by failing to object in the Superior Court because a party waives the Supreme Court’s review of a denial of a right to a jury trial on appeal by not requesting a jury trial or by a valid waiver pursuant to Rule 39.    

State v. Mark A. Hallenbeck, No. 03-340 (July 13, 2005)

After the stabbing death of a maintenance worker at the Warwick Mall on May 30, 2001, the defendant was indicted on a charge of first-degree murder.  After trial before a jury, the defendant was found not guilty of first- and second-degree murder, but the jury returned a guilty verdict on the lesser-included offense of manslaughter.  After denying the defendant’s motion for a new trial, the trial justice sentenced the defendant to thirty years at the Adult Correctional Institutions, with twenty years to serve and ten years suspended and ten years probation.  Subsequently, the defendant filed a motion to reduce sentence pursuant to Rule 35 of the Superior Court Rules of Criminal Procedure.

The Supreme Court held that the trial justice did not commit error by failing to properly instruct the jury on the issues of self-defense and manslaughter; that the trial justice did not err in denying the defendant’s motions for judgment of acquittal and for a new trial; that the trial justice properly denied the defendant’s motion to admit the victim’s criminal record into evidence; that the trial justice, however, correctly admitted an enlarged photograph of the crime scene into evidence; and that the defendant failed to preserve the issue of the proper imposition of his sentence for appellate review.  Consequently, the Supreme Court affirmed the judgment of conviction.

 

In re David L, No. 04-76 (July 12, 2005)

This is a mother’s appeal from a Family Court decree terminating her parental rights to her son David, born November 5, 2001.  The mother’s parental rights were terminated based on allegations that (1) she had abandoned or deserted the child, and (2) her parental rights to another child previously had been terminated and she continues to lack the ability or willingness to respond to rehabilitation services.

On appeal, the mother conceded that DCYF proved a prima facie case of abandonment pursuant to G.L. 1956 § 15‑7‑7(a)(4), but argued that she, in fact, successfully rebutted this prima facie case.  In addition, she argued, the trial justice committed clear error by terminating her parental rights under § 15‑7‑7(a)(2)(iv) because she had demonstrated before trial that she no longer was acting in a manner detrimental to David.  Third, the mother asserted that the trial justice erred in finding her to be an unfit parent to David because at the time of trial she was engaged in a voluntary residential substance abuse treatment program, had achieved sobriety, and was effectively addressing her mental health needs.  Lastly, she contended that the trial justice erred in finding that terminating her rights to the child would be in David’s best interest.

The Supreme Court ruled that there was sufficient evidence in the record to support the trial justice’s factual findings and legal conclusions and affirmed the Family Court decree terminating the mother’s parental rights.

Paul J. Waters v. Charles F. Magee, Jr., No. 03-630 (July 12, 2005)

The defendant, Charles F. Magee, Jr., appealed from a Family Court order granting sole custody of the parties’ two minor children to the plaintiff, Paula J. Waters, setting forth a visitation schedule, ordering the payment of current and retroactive child support, and restraining him from assaulting, molesting, or otherwise interfering with the plaintiff in any manner until April 7, 2006.  The defendant argued on appeal that the trial justice overlooked or misconceived material evidence or was otherwise clearly wrong regarding the following issues: (1) her restriction of defendant’s cross-examination of the plaintiff about the defendant’s alcohol abuse; (2) the limitations she placed on the defendant’s visitation with his minor children; and (3) establishing a child support arrearage "from a time when the parties at the very least enjoyed shared placement of the minor children with [defendant] caring for the children a majority of the time."  In addition, the defendant argued that the trial justice was barred by res judicata from entering a restraining order against the defendant because it was "based upon the same facts and circumstances that another justice of the same court denied after a full hearing on the issue."

State v. John Davis, No. 03-622 (July 8, 2005)

The defendant appealed from judgments of conviction for assault with a dangerous weapon with intent to rob and for breaking and entering.  The Supreme Court affirmed, rejecting the defendant’s argument that the trial justice erroneously denied his motion for a new trial.  The Supreme Court held that the trial justice did not overlook or misconceive material evidence in deciding to deny the defendant’s motion for a new trial.  Also, although the defendant failed to preserve the issue for appeal, the state did not have to persuade a unanimous jury beyond a reasonable doubt that the defendant was either a principal or an aider or abettor because the defendant’s manner of participation was not an element of the crimes charged in the indictment. 

James J. Malachowski v. State of Rhode Island et al, No. 03-268 (July 8, 2005)

In this appeal and petition for certiorari, the Supreme Court reversed summary judgment for the defendants on the plaintiff’s declaratory judgment action based on the trial justice’s erroneous conclusion that the Unclassified Pay Plan Board was an administrative agency within the Administrative Procedures Act.  The Supreme Court denied the petition for certiorari based on its conclusion that the Personnel Appeals Board lacked jurisdiction over the plaintiff’s appeal pursuant G.L. 1956 § 36‑4‑42 because the plaintiff’s salary was not reduced by his appointing authority.      

 Jamie E. Perrotti et al v. Paul S. Gonicberg, No. 04-138 (July 7, 2005)

The plaintiffs, Jamie E. Perrotti and Paul A. Perrotti, appealed from the denial of their motion for a new trial in their negligence action seeking recovery for physical and psychological injuries allegedly suffered in an automobile accident.  At the time of the accident, Mrs. Perrotti was approximately six months pregnant.  After a trial on the issue of damages, a jury found in favor of the plaintiffs and awarded them $750 in damages.  Before submitting the case to the jury, however, the trial justice had ruled, sua sponte, that Mrs. Perrotti had failed to establish a prima facie case with respect to her claim of emotional injury and anguish because of her concern about the health of her unborn child.

The plaintiffs raised two issues on appeal.  Their first assertion of error was that the trial justice erred in dismissing Mrs. Perrotti’s claim for mental suffering occasioned by her concern for her unborn child.  Secondly, they maintained that it was error to preclude them from presenting evidence that their two-year-old daughter suffered a broken leg in the accident.

Albert E. Hagenberg v. Scott Avedisian et al, No. 04-182 (July 7, 2005)

This appeal involves the application of G.L. 1956 § 45-19-1, the Injured on Duty  (IOD) statute, and the unilateral revocation of medical reimbursement benefits to the plaintiff, Albert E. Hagenberg, by the defendants, the City of Warwick and various municipal officials.  The Supreme Court affirmed the judgment in favor of the defendants, which denied both declaratory and injunctive relief; and also affirmed the judgment in favor of the plaintiff, but on grounds different from those that the trial justice relied upon.

Specifically, the Court concluded that the Board of Public Safety was vested, by Warwick’s charter, with the authority to direct the pension fund roll and that the board unanimously concluded in 1979 that the plaintiff was entitled to continued reimbursement for job-related medical expenses.

State v. Eddie M. Linde, No. 03-336 (July 7, 2005)

After the shooting death of a coworker at the Susse Chalet motel in Smithfield on October 23, 2001, the defendant was charged by indictment with first-degree murder and additional felony offenses.  The defendant appeals from a judgment of conviction entered in the Superior Court after a jury returned guilty verdicts on nine different counts, including murder in the second degree.  After denying the defendant’s motion for a new trial, the trial justice sentenced the defendant on the various felonies, most significantly to life imprisonment, consecutive to a forty-year sentence with twenty years to serve.

The Supreme Court held that the trial justice did not err in refusing to suppress evidence seized from under the defendant’s motel room mattress pursuant to a search that his roommate consented to.  In addition, the Supreme Court held that the trial justice did not err by refusing to instruct the jury on self-defense because he correctly assessed that there was no evidence of self-defense in this case.  Consequently, the Supreme Court affirmed the judgment of conviction.

Bridget Selwyn v. Karen Ward et al, No. 02-637 (July 7, 2005)

The plaintiff, who was injured when a minor poured grain alcohol onto an open flame, appeals from a grant of summary judgment in favor of the defendant, RC Liquors, Inc., a liquor store, which allegedly sold the grain alcohol to another minor.  The plaintiff argues that the defendant knew or should have known that minors have a tendency to ignite grain alcohol, an extremely flammable substance.  Alternatively, the plaintiff asserts that selling grain alcohol to minors is ultrahazardous or abnormally dangerous, warranting application of strict liability.

The Supreme Court affirmed the summary judgment and held that the defendant did not owe a duty of care to the plaintiff to protect her from the deliberate ignition of the grain alcohol because it could not reasonably have foreseen such a risk.  Further, the Court held that selling grain alcohol to minors is not an ultrahazardous or abnormally dangerous activity for purposes of application of strict liability.

Edward E. Young, Sr. v. State, No. 03-0454 (July 1, 2005)

The applicant, Edward E. Young, Sr., appealed pro se from the Superior Court’s denial of his application for post-conviction relief.  Young was convicted of three counts of first-degree child molestation sexual assault on September 20, 1996, and sentenced to forty-five years at the Adult Correctional Institutions on each count, to run concurrently, with twenty years to serve, and the balance suspended with probation.  The applicant argued that: his trial counsel was ineffective by failing to present the testimony of two witnesses who he claims would have impeached the victims testimony; his appellate counsel was ineffective in failing to raise issues on appeal about the failure to present those witnesses and the denial of his motion for a new trial; the jury was prejudiced against him, which should have resulted in a mistrial; the trial justice had an ex parte conversation with the prosecutor; the prosecutor did not act in good faith in bringing the case against him; and there were inconsistencies in witness statements compared with trial testimony.  The Supreme Court found no merit to the applicant’s arguments and affirmed the judgment denying him post-conviction relief.

Don-Lin Jewelry Co., Inc. v. The Westin Hotel Company, No. 04-153 (June 30, 2005)

This appeal arises from the plaintiff’s claim that the defendant breached a bailment agreement by failing to return the bailed property.  At the close of the plaintiff’s evidence in this nonjury trial, the Superior Court granted the defendant’s motion to dismiss in accordance with Rule 41 of the Superior Court Rules of Civil Procedure and entered judgment against the plaintiff.  The Supreme Court affirmed, holding that, when the plaintiff surrendered possession of personalty to the defendant with the sole instruction that the bailed property be delivered to a third party and the defendant complied with that instruction, the bailment terminated.  The plaintiff cannot hold the defendant liable for loss of the bailed property under the original bailment if the loss occurred after the termination of that bailment.     

State v. Keith Burke, No. 03-606 (June 30, 2005)

The defendant appeals from a Superior Court order denying his motion to reduce his five-year sentence for felony witness intimidation with a fifteen-year enhancement penalty as a habitual offender.  The Supreme Court affirmed the hearing justice’s order, holding that the defendant’s sentence was not grossly disproportionate.   The defendant received the maximum sentence for witness intimidation and fifteen of a possible twenty-five years under the habitual offender statute.  The Supreme Court agreed with the trial justice that the defendant’s criminal career justified the enhanced penalty.

Terence M. Fracassa v. M. Priscilla Doris et al, No. 03-608 (June 30, 2005)

This is the second appeal to come before the Supreme Court in this matter.  In 2003, the plaintiff appealed from a judgment in the defendants’ favor, denying his claim for specific performance of a purchase and sales agreement.  See Fracassa v. Doris, 814 A.2d 358 (R.I. 2003).  This Court vacated the judgment and remanded the case for additional findings of fact relative to events occurring after the scheduled closing date.  On remand, the trial justice granted specific performance to the plaintiff.  The defendants appealed this judgment, arguing that the trial justice did not exercise his independent judgment but, instead, read "between the lines" of the Supreme Court’s opinion and interpreted it as a directive to reconsider his decision. 

The Supreme Court held that the trial justice did not abuse his discretion by ordering specific performance of the agreement or by altering the terms of the original agreement.  The Court concluded that the trial justice’s findings that the parties agreed to a new closing date and that the plaintiff was ready, willing, and able to close on that date were supported by the record.  Further, the trial justice did not abuse his discretion by finding that the plaintiff waived certain conditions that were intended for his benefit.  The judgment is affirmed.

In re Amber P. et al, No. 03-399 (June 28, 2005)

The respondent-father, William A. Pandolfi, appealed from a Family Court decree terminating his parental rights to his daughters Amber and Angelica.  To support his appeal, the respondent alleged that the trial justice improperly considered the respondent’s conviction for rape of a fourteen-year-old girl in New Hampshire because the Supreme Court of that state had remanded his case to the trial court at the time the hearings on the state’s termination petition began.  The respondent also alleged that the trial justice improperly focused on the fact of his conviction in granting the state’s termination petition and erred in finding that the state had undertaken reasonable efforts to encourage and strengthen the parental relationship.  The respondent also maintained that he was denied adequate assistance of counsel, and, finally, that the trial justice improperly admitted the testimony of the state’s expert witness. 

            The Supreme Court affirmed the decree terminating the respondent’s parental rights.  The Court found that although the respondent’s conviction had been remanded at the time of the Family Court’s hearings on the termination petition, the conviction never was vacated or overturned.  Thus, the Court deemed that the trial justice was not wrong to consider the conviction, the facts underlying the conviction, and the respondent’s failure to undergo sexual offender counseling as ordered.  The Court also held that the trial justice did not rely solely on Pandolfi’s conviction, noting that the trial justice’s decision was supported amply by the testimony adduced at trial, and especially in light of the duration of the respondent’s sentence.  Additionally, in view of the unique facts of the case, the Court saw no error in the trial justice’s finding that the state had undertaken reasonable efforts to reunite the respondent with the children.  Finally, the Court rejected respondent’s latter points of appeal, holding that the respondent had knowingly waived counsel in the proceedings below, and had failed to object to the expert witness’s qualifications before the trial justice.

State v. Mariano Jimenez  No. 2003-640-C.A. ( June 24, 2005)

The Superior Court did not abuse its discretion in allowing questioning concerning defendant’s experience and familiarity with the specific gun that he used to kill his victim because defendant opened the door to such questioning when he testified that the killing was directly attributable to the malfunctioning of that gun. The trial justice properly refused to instruct the jury on the lesser-included offense of diminished-capacity manslaughter because defendant failed to produce sufficient evidence required to warrant such an instruction.

State ex rel. Town of Westerly v. Charles M. Bradley, No. 04-197 (June 21, 2005)

The defendant appeals from a Superior Court judgment of conviction for violating a Westerly town ordinance prohibiting swimming in the Weekapaug Breachway.  The defendant challenges the validity of the ordinance as violating the Rhode Island Constitution and the Constitution of the United States.  The Supreme Court held that:  (1) the ordinance is not void for vagueness, in light of a related town ordinance that further defines the scope of the prohibition and the town’s proffered limiting construction; and (2) the ordinance is a valid exercise of the town’s police power and does not violate the public trust doctrine.  The judgment is affirmed.

John F. McBurney v. Armand A. Teixeira, No. 00-283 (June 15, 2005)

The plaintiff sued the defendant alleging intentional interference with a contractual relationship, and the defendant moved for summary judgment, maintaining that the plaintiff’s suit was barred by the applicable ten-year statute of limitations.  In the alternative, the defendant argued that a settlement agreement and release between the plaintiff and an associate of the defendant, whom the plaintiff had sued earlier, absolved the defendant from any potential liability.  Citing an appeal in a companion case in which the authenticity of the settlement agreement was in issue, the motion justice granted the defendant’s motion on statute of limitations grounds only.  The plaintiff appealed, and the matter was consolidated for argument with McBurney v. Roszkowski, No. 99-496-A. (R.I., filed June 15, 2005).  In light of its holding in that companion case, in which the Court affirmed a Superior Court finding that the settlement was valid, the Court affirmed the motion justice’s granting of the defendant’s motion for summary judgment, holding that the broad and unambiguous language of the settlement agreement evinced a clear intent to release the defendant from liability for the misconduct alleged in the plaintiff’s complaint.  Accordingly, it was not necessary for the Court to consider whether the plaintiff’s suit was barred by the statute of limitations.

John B. Newman et al v. Valleywood Associates, Inc., No. 02-674 (June 15, 2005)

In this case discussing the interplay between the Rhode Island Mechanics’ Lien Law, G.L. 1956 chapter 28 of title 34, and The Arbitration Act, G.L. 1956 chapter 3 of title 10, a Superior Court motion justice determined that the defendant’s motion to arbitrate a contractual dispute would be granted only if the defendant released its mechanic’s lien on the subject real property within two weeks.  This Court read the two statutes in pari materia and held that a party does not waive its right to arbitrate a contractual dispute, as a matter of law, by filing a notice of intention to claim a mechanic’s lien. 

John F. McBurney v. Joseph J. Roszkowski, No. 99-496 (June 15, 2005)

The plaintiff sued the defendant, alleging the latter’s intentional interference with a contractual relationship between the plaintiff and a client.  Shortly after the beginning of trial, the parties entered into a settlement agreement and judgment stipulation.  After reviewing the form of the judgment stipulation, however, the plaintiff sought to correct the record under Rule 60(b) of the Superior Court Rules of Civil Procedure, arguing that he had not authorized his attorney to stipulate to a judgment for the defendant.  At that time, the plaintiff also alleged that his signature had been forged onto the settlement and release agreement.  A justice of the Superior Court denied the motion, and the plaintiff appealed.  Before considering the plaintiff’s appeal, the Supreme Court remanded the case to the Superior Court for findings of fact regarding the authenticity of the signatures on the settlement agreement and the authority of the plaintiff’s counsel to enter the stipulation in question.  Pursuant to that mandate, a justice of the Superior Court subsequently found that the plaintiff’s counsel had, at a minimum, the implied authority to enter the judgment stipulation at issue, and that the signatures on the settlement agreement were authentic.  The Court affirmed, holding that because the plaintiff’s attorney was authorized to settle the case by the client, she was authorized to take such steps legal, proper, and necessary to carry out the client’s wishes.  In the absence of evidence that the plaintiff specifically had instructed his counsel not to enter into the stipulation at issue, the Court held that the plaintiff’s counsel possessed the authority to resolve the matter.  Turning to the authenticity of the signature on the settlement agreement, the Court discerned no basis to second-guess the lower court’s assessment of the relevant expert testimony presented on remand.  Accordingly, the Court affirmed the Superior Court’s denial of the plaintiff’s motion under Rule 60(b). 

Maria L. DeCamp v. Dollar Tree Stores, Inc., et al, No. 04-31 (June 14, 2005)

The plaintiff, Maria L. DeCamp (plaintiff), appealed from the entry of summary judgment in favor of the defendants, Dollar Tree Stores, Inc., and the plaintiff’s supervisor, Kenneth Braz (collectively defendants), which dismissed the plaintiff’s suit alleging employment discrimination based upon her sex and her disability.  On the claim of sex discrimination, the Court held that the plaintiff had established both a prima facie case of her gender-based disparate treatment claim and a genuine issue of material fact concerning each element of her gender-based hostile work environment claim.  On the claim of disability discrimination, the Court held that the plaintiff failed to establish a prima facie case of disability discrimination.  Accordingly, the Court affirmed the grant of summary judgment in favor of the defendants on the count of disability discrimination, reversed the grant of summary judgment in favor of the defendants on the count of sex discrimination, and remanded the case for further proceedings, pertaining to the plaintiff’s gender-based disparate treatment claim and gender-based hostile work environment claim.

Gerald Kaveny et al v. Town of Cumberland Zoning Board of Review, No. 03-318 (June 13, 2005)

Various abutting landowners appealed the decision of the Zoning Board of Review of the Town of Cumberland approving developer Highland Hills’s application for a comprehensive permit pursuant to the Rhode Island Low and Moderate Income Housing Act (act), G.L. 1956 chapter 53 title 45, allowing Highland Hills to build 160 units for persons over fifty-five years-old, of which, twenty percent would be reserved for low and moderate income buyers.  This Court vacated the board’s decision because the board failed to make any findings of fact supporting its decision to permit 160 units, as opposed to the originally proposed 343 units.  The Court further concluded that the act was not constitutionally invalid under due process, equal protection, or nondelegation grounds.  The Court declined to consider abutters’ challenge to the State Housing Appeals Board’s implementing regulations because the abutters made no claim that the challenged provision was involved in board’s decision.

Keven A. McKenna P.C. et al v. Frank Williams et al, No. 05-144 (June 6, 2005)

State v. Jeffrey Dustin, No. 04-303 (June 6, 2005)

The defendant, Jeffrey Dustin (defendant), appealed from convictions for possession of cocaine and possession of marijuana handed down after he stipulated to the evidence on record and waived his right to a jury trial.  He claimed the hearing justice erred in denying his pretrial motion to suppress the evidence on the grounds that the search that revealed the narcotics was not incident to a lawful arrest.  As a preliminary matter, the Supreme Court held that the issue had not been waived when defendant stipulated to the facts of the case rather than going on with a full adversarial proceeding.  Notwithstanding, his convictions are affirmed because the police officers had the reasonable suspicion necessary to search the defendant and, thus, his constitutional rights were not violated.

Pamela A. Westlake v. Robert L. Westlake, No. 04-43 (June 3, 2005)

In this appeal from a post-final-judgment Family Court placement decision in favor of the plaintiff mother, the defendant father argued that the trial justice erroneously denied his motion to modify placement of the parties’ two minor children.  Soon after the plaintiff mother moved with the children from the area where the family resided before the divorce to a more distant part of Rhode Island, the defendant moved for and was denied physical placement of the minor children.  On appeal, the defendant asserted that the trial justice failed to consider the best interests of the children when making his decision and that instead, the trial justice took into consideration that which was best for the plaintiff mother.   After determining that the trial justice had not abused his discretion, had conducted the appropriate analysis, and had taken into consideration the best interests of the children, the Court denied the defendant’s appeal. 

Robert T. Kells v. Town of Lincoln, et al, No. 04-239 (June 3, 2005)

In this case, the defendants, the Town of Lincoln, by and through its finance director, Stephen Woerner, and current town administrator, Sue P. Sheppard, appealed from a Superior Court summary judgment enjoining them from removing the plaintiff, Robert T. Kells, from his position as chief of police.  The defendants also appealed the Superior Court’s granting of attorney’s fees to the plaintiff.  The Court affirmed the hearing justice’s determinations, holding that Kells, through both his contract with the town and the provisions of the town charter, was entitled to the protections afforded by the town charter.  The Court ruled that the chief of police, despite his indefinite tenure, could be removed only for cause, and after a specification of charges, notice of a hearing, and an opportunity to be heard before the town council.  The Court further held that because Kells’s contract was both valid and enforceable, the defendants’ failure to adhere to it constituted a breach of contract.  As such, and because there was a complete absence of a justiciable issue of either law or fact raised by the defendants, attorney’s fees were warranted. 

  Cheryl Pierce, Individually and Cheryl Pierce, p.p.a. as Parent and Next of Friend of John T. Pierce, a minor v. Rhode Island Hospital, d/b/a Hasbro Children's Hospital et al, No. 04-0374 (June 2, 2005)

Two-and-a-half-year-old John T. Pierce, son of Cheryl Pierce (the plaintiff), was permanently scarred after physicians at Rhode Island Hospital removed a cast from his left leg.  After arbitration and award in plaintiff’s favor, the arbitrator amended the award to reflect the proper statutory interest for medical malpractice.  The plaintiff appealed the Superior Court’s confirmation of the amended award.  This Court affirmed, holding that the arbitrator’s initial award was a clear case of "material miscalculation of figures," and, as such, amendment was proper.  The Court rejected the plaintiff’s contention that the arbitrator’s denial of her claim for loss of consortium was "manifest disregard of the law" because she failed to submit any supporting evidence.

Thomas Noel O'Sullivan, individually, as exector of the estate of Julia Mary Walsh O;Sullivan, and as natural parent and next friend of Kieran O'Sullivan, Clodagh O'Sullivan and Aoife O'Sullivan, minors, No. 03-70 (May 26, 2005)

The plaintiff filed a wrongful death action against the defendant hospital and certain doctors arising out of the death of the plaintiff’s wife at Rhode Island Hospital, which occurred after she had been treated unsuccessfully at Newport Hospital.  The plaintiff claimed that he did not discover that these defendants were potential tortfeasors until he received his wife’s medical records several months after her death.  The plaintiff appealed the Superior Court’s grant of summary judgment in favor of the defendants. The Superior Court ruled that the plaintiff’s wrongful death action against the defendants was time barred pursuant to the three-year statute of limitations period set forth in Rhode Island’s wrongful death statute. 

The Supreme Court reversed and remanded the case for trial, holding that the plaintiff’s complaint was timely filed.  The Supreme Court determined that the death of an individual does not trigger the running of the statute of limitations in all wrongful death cases.  Instead, when a death is caused by any wrongful act, neglect or default which is not known at the time of death, the statute is tolled until the wrongful act, neglect or default is discovered or, in the exercise of reasonable diligence, should have been discovered.  The Supreme Court held that because the plaintiff’s wife’s illness became progressively worse during the days when she was seeking treatment at Newport Hospital, the defendants were understandably not known to the plaintiff as being potential tortfeasors at the moment of her death.  Therefore, the statute of limitations is tolled until the date the plaintiff received his wife’s medical records.

State v. Danilo Disla, No. 03-74 (May 26, 2005)

The defendant was convicted of one count of delivering a controlled substance and one count of conspiring to violate the Rhode Island Controlled Substances Act, G.L. 1956 chapter 28 of title 21, by agreeing to deliver a controlled substance.  On appeal, he contended that the evidence presented by the prosecution at trial was legally insufficient to support his conviction of conspiracy to deliver heroin, and thus the trial justice erred by denying his motion for judgment of acquittal.  The state agreed and conceded that it presented insufficient evidence at trial to support the defendant’s conviction of conspiracy.  Notwithstanding the state’s confession of error, the Supreme Court conducted its own examination of the record, and concluded that the evidence was indeed insufficient to support the conspiracy conviction.  The Supreme Court therefore vacated the Superior Court judgment with respect to this count.

Secondly, the defendant argued on appeal that the trial justice erred in failing to pass the case on two occasions during the trial: once, after a witness for the prosecution testified that the alleged coconspirator was a known narcotics user; and, again, after the same witness testified that two days before the alleged drug transaction, he had taken a photograph of the defendant at the same location.  The Supreme Court held that in both instances the trial justice had given appropriate cautionary instructions that were more than adequate to cure any possible prejudice that might inure to the defendant as a result of the testimony.  Accordingly, the Superior Court judgment was affirmed as to the delivery charge.

Arnold Road Realty Associates, LLC, et al v. The Tiogue Fire District, No. 03-615 (May 24, 2005)

The plaintiffs, Arnold Road Realty Associates, LLC (Arnold Road) and A. Cardi Realty Company, Inc. (Cardi Realty), appealed from a Superior Court judgment in favor of the defendant, the Tiogue Fire District, on their slander-of-title allegations.  The basis of the alleged slander was both the recording of, and the failure to remove, a tax collector’s deed to property that Arnold Road formerly owned in Coventry, Rhode Island.  The trial justice found that, although someone other than the true owner was given notice of the tax sale and the resulting deed, Arnold Road failed to prove the requisite element of malice necessary to support its slander-of-title claims.  Thereupon, Arnold Road sought to amend its complaint by adding Cardi Realty as a party plaintiff, and by adding counts for declaratory judgment and to quiet title.  The trial justice found that his earlier decision on the slander-of-title claims was dispositive of the additional claims, and granted the plaintiff’s motion to amend and summarily entered judgment for the plaintiffs on the declaratory-judgment and quiet-title counts. 

On appeal, Arnold Road argued that the trial justice overlooked and misconceived the evidence in finding that the Tiogue Fire District did not act with the requisite malice necessary to support the slander-of-title counts.  In its cross-appeal from the judgment in favor of Arnold Road and Cardi Realty on the declaratory-judgment and quiet-title counts, the Tiogue Fire District argued that the addition of the declaratory-judgment and quiet-title counts after the trial concluded, combined with the denial of an opportunity to amend its answer, deprived it of its right to a full and fair hearing on the merits of the additional counts.

The Supreme Court held that the record supported the Superior Court justice’s decision that the plaintiff failed to prove that the defendant acted with malice in either recording or failing to remove the tax collector’s deed.  Furthermore, the Supreme Court held that the issue of the validity of the tax collector’s deed was tried with the implied consent of the parties and affirmed the judgment in favor of the plaintiffs on the declaratory-judgment and quiet-title counts.   The Court did not examine the issue of the propriety of adding Cardi Realty as a party plaintiff for the declaratory-judgment and quiet-title counts, because Arnold Road had standing to bring the quiet-title action and the addition of Cardi Realty did not change the essential result, which was to void the tax deed and to quiet title to the property.

State v. Israel Rivera, No. 04-164 (May 20, 2005)

On an appeal from a Superior Court judgment that the defendant had violated the terms of his probation, the Court determined whether the trial justice could properly consider testimony regarding a witness’s financial relationship to the defendant when assessing credibility.  Israel Rivera was presented as a violator of his probation pursuant to Rule 32(f) of the Superior Court Rules of Criminal Procedure.  His girlfriend testified on his behalf, and the trial justice posed questions from the bench about her financial reliance on defendant.  The defendant argued that the trial justice improperly considered such information when assessing the witness’s credibility.  Applying the rule that determinations of witness credibility at probation-revocation hearings are made at the discretion of the trial justice, and that such determinations will be overturned only if they are found to be arbitrary or capricious, the Court found that the consideration of the testimony was proper.  The Court reasoned that such testimony was relevant when considering the possible bias of the witness, and, therefore, the judgment was affirmed.

Anthony J. Dellagrotta et al v. Cynthia A. Dellagrotta, No. 02-46 (May 19, 2005)

Both parties appealed from a decision of the Superior Court in a nonjury case, in which the court found that the plaintiffs were the rightful owners of certain property, but the defendant was entitled to compensation for the cost of improvements she made to the property and the house’s appreciation in value attributable to those improvements.  In addition, the defendant argued that the trial justice erred in granting the plaintiffs an award of rent and attorney’s fees on their trespass and ejectment claim.  The Supreme Court affirmed the decision of the Superior Court that the defendant failed to prove the elements of promissory estoppel or that a constructive trust should be imposed upon the property for her benefit.  The Court vacated the plaintiffs’ award of attorney’s fees, holding that the Residential Landlord and Tenant Act, G.L. 1956 chapter 18 of title 34, did not apply because there was no rental agreement between the parties.  An award of rent was appropriate, the Court determined, to compensate the plaintiffs for the defendant’s possession of the house after receipt of notice that she no longer was privileged to remain there.  Finally, the Court directed entry of a new judgment on the defendant’s unjust enrichment award because the benefit conferred upon the plaintiffs was the increased value of the house only.

Azarig Kooloian v. Suburban Land Co. et al v. Azarig Kooloian, Jr., alias, No. 03-4 (May 18, 2005)

This appeal arises from a buyer’s claim of damages from the defendants for breach of contract and fraud in the context of a purchase and sales agreement for real estate.  The defendants—the property’s seller, the seller’s controlling shareholder, and a related corporation—appeal from a money judgment.  The Supreme Court concluded that the evidence supported the trial justice’s finding that the defendants breached the contract and committed fraud.  The buyer acquired the property at a foreclosure sale at a higher price than the purchase price agreed to in the purchase and sales agreement.  The trial justice found that because defendants acted in bad faith and committed fraud, the buyer was entitled to damages compensating him for his loss of the bargain negotiated in the purchase and sales agreement.  The Supreme Court affirmed the judgment. 

Mary Seide v. State of Rhode Island et al, No. 03-521 (May 16, 2005)

The plaintiff sued the defendants, several police officers and their governmental employers, to recover for injuries suffered in an accident with the driver of a stolen vehicle who was being pursued by the defendant police officers.  The plaintiff appealed from the Superior Court’s grant of judgment as a matter of law, and on appeal, the Supreme Court vacated the judgment. 

Specifically, the Court held that the Public Duty Doctrine did not grant the defendants immunity because G.L. 1956 § 31‑12‑9 expressly waives an officer’s immunity from suit by providing that, when a police officer pursues a person suspected of violating the law, the officer is not protected "from the consequences of [his or her] reckless disregard of the safety of others."  Additionally, the Court concluded that judgment as a matter of law was improperly granted on the issue of proximate cause because the plaintiff produced evidence that reasonably could lead a jury to conclude that the officers’ decision to continue the pursuit and their failure to terminate the chase earlier was in reckless disregard for the safety of others.  Also, the plaintiff did not need to present expert testimony that the defendants breached a duty of care owed to plaintiff because the jury was capable of understanding the facts and drawing correct conclusions without the assistance of an expert.  Finally, a police department’s pursuit policy, adopted as official policy governing high-speed police pursuits, may serve as a standard that the jury could compare with the defendants’ conduct in deciding whether the defendants breached the standard of care owed to the plaintiff. 

State of RI v. Horton, No. 2002-401 (May 5, 2005)

The defendant appealed his 2001 conviction of first-degree child molestation sexual assault for which he was sentenced to twenty years, eight to serve, with the balance suspended with probation.  On appeal, the defendant advanced three points of error as reasons for reversing his conviction.  The defendant argued that the trial justice committed reversible error when she overruled the defense’s objections to certain comments made by the prosecutor during closing argument, that the trial justice erred in denying the defendant’s motion for a new trial based on the trial justice’s weighing of certain testimony, and that the trial justice erroneously admitted into evidence pictures that had not been provided to the defendant during discovery.   The Court held that two comments the prosecution made and that the defendant objected to failed to rise beyond the level of harmless error, and as such, did not warrant reversal.  The Court also held that the trial justice followed the appropriate procedure and, considering both the weight of the evidence and the credibility of the witnesses, rightly denied the defendant’s motion for a new trial.  Finally, the Court did not agree that there was reversible error in the prosecution’s discovery violation because the defendant had the opportunity to view the videotape.  For these reasons, the Court denied the defendant’s appeal and upheld his conviction.

State of RI v. Sylvia No. 2004-152 (May 5, 2005)

The defendant, Terrence Sylvia, appealed from a Superior Court judgment revoking four previously suspended sentences and sentencing him to serve eight years at the Adult Correctional Institutions for violating the terms of his probation.  The defendant argued on appeal that, notwithstanding the reduced burden of proof required at a violation hearing, the evidence adduced against him nevertheless was insufficient to show that he violated the terms of his probation.  Thus, he asserted, the hearing justice acted arbitrarily and capriciously.  The defendant also argued that the hearing justice improperly relied upon the defendant’s previous contacts with the criminal justice system to buttress the state’s proof.           

The Supreme Court reviewed the record and found the defendant’s contentions to be without merit.  The Supreme Court was satisfied that the hearing justice properly weighed and considered the evidence presented and found that the testimony of the complaining witness identifying the defendant as his assailant was credible.  Moreover, the record disclosed that the hearing justice considered the defendant’s criminal history only with respect to the issues of bail and sentencing, after he had revoked the suspended sentences.  The Supreme Court held that the trial justice acted neither arbitrarily nor capriciously in considering the evidence and in determining that, despite apparent inconsistencies, there existed reasonably satisfactory evidence to support a finding that the defendant had violated the conditions of his probation.

Euphemia Barr Gardner et al v. Wayne R. Baird, No. 04-237 (May 4, 2005)

In this appeal arising from a grant of summary judgment in favor of the defendant-property owner, the Supreme Court held that the motion justice erred by finding that the plaintiffs could not prove that they had an ownership interest in the defendant’s property.  The plaintiffs sufficiently pleaded a claim for a prescriptive easement and demonstrated that factual questions existed that may prove they are entitled to a judgment in their favor.  In addition, the Court held that the plaintiffs who failed to pay the appellate filing fee were properly before the Court on appeal.

I. Shane Olshansky et al v. Rehrig International et al, No. 04-184 (May 3, 2005)

The plaintiffs, I. Shane and Myra Olshansky (plaintiffs), appealed from a summary judgment in favor of the defendant, Rehrig International (defendant), on the plaintiffs’ claims of strict liability, negligence, breach of implied warranty, and loss of consortium.  The motion justice determined that the plaintiffs were unable to prove their case based on the evidence on the record, particularly since they did not plan to retain an expert to explain what defect caused the basket of a shopping cart to disengage from the wheels, thus causing Mr. Olshansky’s alleged injuries.  This Court affirmed, holding that nothing on the record established that this defendant was in any way negligent, that it breached an implied warranty, or that a defect existed in the product that caused Mr. Olshansky’s injuries.  The plaintiffs provided no information to survive summary judgment.

The Elena Carcieri Trust-1988 et al v. Enterprise Rent-A-Car Company of Rhode Island, No. 04-176 (May 3, 2005)

The defendant-lessee appeals from a judgment of the Superior Court in favor of the plaintiff-lessor in this commercial landlord-tenant case.  The defendant argues that it timely exercised its option to extend the lease in accordance with its provisions, which required that notice of the defendant’s election to extend the term of the lease be given "not later than three (3) months prior to expiration of the original term." 

The Supreme Court concluded that the trial justice did not err in finding the contract ambiguous and affirmed the finding that the defendant failed to exercise its option to extend by the July 31, 2002, deadline and became a holdover tenant by remaining in possession of the property.  Although the lease provided that the parties would enter into a second agreement stipulating the termination of the original term, the parties never entered into that agreement.  In the absence of an agreement modifying the term of the lease, the parties are bound by provisions in the original lease setting the lease term from November 1, 1997, to October 31, 2002. 

In re James C., No. 00-443 (May 2, 2005)

The Family Court did not err in admitting hearsay evidence in the form of two repair estimates proffered by the state during appellant’s juvenile restitution hearing.  The Family Court’s admission of the evidence in question did not violate the juvenile’s Fourteenth Amendment right to due process.  When a juvenile is ordered to pay restitution, he or she is entitled to a hearing to determine the amount, however, this hearing may be conducted in a relatively summary fashion during which adherence to the rules of evidence is not required.

Loretta M. Scarborough v. Thomas E. Wright, No. 03-510 (May 2, 2005)

Summary judgment in favor of defendant on statute of limitations grounds is affirmed based upon plaintiff’s failure to comply with Rule 56 of the Superior Court Rules of Civil Procedure.  In this case, the affidavit submitted by plaintiff in opposition to defendant’s motion for summary judgment was not valid because it was not notarized, i.e. it was not taken before a person having authority to administer such oath or affirmation.

State v. David L. Crow, No. 02-407 (April 29, 2005)

In this appeal by a defendant found guilty of solicitation to commit murder and to commit arson, there was sufficient evidence of the defendant’s guilt beyond a reasonable doubt.  The trial justice did not overlook or misconceive material evidence, was not clearly wrong, and articulated a sufficient rationale for denying the defendant’s motion for a new trial.  The defendant’s failure to have properly objected to the jury instructions on criminal solicitation constituted a waiver of that issue on appeal.

Brian Martin v. Matthew J. Marciano et al, No. 03-561 (April 27, 2005)

The plaintiff, Brian Martin (plaintiff), was attacked while attending a high school graduation party that the defendant-parent, Lee Martin (defendant), hosted at her home in honor of her daughter, Jen Martin (Jen).  The evidence showed that the defendant may have provided alcohol to the plaintiff and other underage guests at the party.  The plaintiff brought suit against:  the defendant; party guest Matthew J. Marciano; and the uninvited attacker, Chijoke Okere (Okere).  A Superior Court motion justice granted the defendant’s motion for summary judgment, concluding that the defendant owed the plaintiff no duty to protect him from Okere’s attack.  The plaintiff appealed and the Supreme Court reversed.  As an adult provider of alcohol to the underage plaintiff, the defendant was duty bound to exercise reasonable care to protect him from criminal attack.  Whether Okere’s actions constitute a supervening act breaking the causal link between the defendant’s conduct and the plaintiff’s injuries is an unresolved question of fact for the jury to consider. 

 

 

Dawn Tedesco et al v. Richard F. Connors, in his capacity as Finance Director and Purchasing Agent of the Town of Johnston et al, No. 03-469 (April 27, 2005)

The plaintiff, Dawn Tedesco, brought suit against the defendant, Rhode Island Department of Transportation (DOT), for injuries suffered in a bicycle accident after her tire slipped into a parallel-bar sewer grate on Atwood Avenue.  At the close of the plaintiff’s case, the defendant moved for a judgment as a matter of law on two grounds:  (1) that the public duty doctrine barred plaintiff’s case and the egregious conduct exception did not apply; and, in the alternative, (2) that G.L. 1956 § 24-5-1(b), in allocating a duty to the local municipalities to make roadways safe for bicycles, thereby relieved the state of that same duty.  The trial justice granted the town’s motion on the issue of the public duty doctrine and, thus, never reached the statutory argument.

 The Supreme Court reversed the ruling of the trial justice and held that determination of the egregious conduct exception is a mixed question of law and fact and, therefore, that a trial justice must allow a jury to find the predicate or duty-triggering facts, provided any exist, in making such a determination.  Furthermore, § 24-5-1(b) was of no help to the defendant because of the DOT’s own policy of replacing parallel-bar sewer grates on Rhode Island roadways. 

Russell DePetrillo et al v. Norman Lepore a/k/a Lepore Farm, No. 04-122 (April 27, 2005)

The plaintiffs, Russell and Donna DePetrillo (plaintiffs), asked this Court to declare a real estate purchase and sale agreement specific enough for specific performance.  The trial justice denied specific performance, finding that the contract could not be specifically performed because it was not sufficiently clear, definite, certain, and complete as to its essential terms.  The plaintiffs appealed.  Because there was significant doubt as to precisely what parcel would constitute the seller’s reserved lot, this Court affirmed, holding that the trial justice did not abuse his discretion in finding that the contract could not be specifically performed.

 

Angelina M. Wellborn v. Spurwink/Rhode Island et al, No. 04-183 (April 25, 2005)

In this sex discrimination case, the defendant, Spurwink/Rhode Island, appealed from a Superior Court judgment in favor of the plaintiff, former employee Angelina M. Wellborn, arguing that the trial justice should have granted its Super.R.Civ.P. 50 motion for judgment as a matter of law, or in the alternate, its Super.R.Civ.P. 59 motion for a new trial.  Although Wellborn alleged sex discrimination by Spurwink and two of her supervisors, the trial court granted Rule 50 motions for judgment as a matter of law relating to both supervisors, but denied the motion relating to the defendant.  The jury returned a verdict in Wellborn’s favor, finding that she had been the victim of adverse employment action by Spurwink as a result of her pregnancy, and the trial justice denied the defendant’s subsequent Rule 59 motion for a new trial.  On appeal, the defendant argued that the trial justice should have granted either its Rule 50 motion or its Rule 59 motion, claiming that there was no evidence to show that Wellborn was the victim of any adverse employment practice or discriminatory animus, or that Wellborn had been constructively discharged from her job.  The Court denied the defendant’s appeal, holding that the evidence was sufficient for a jury to determine whether the plaintiff had met her burden of proving that Spurwink’s proffered justifications were pretexts for discrimination.   

Credit Union Central Falls v. Lawrence S. Groff, No. 04-196 (April 22, 2005)

Doris P. Riendeau (Riendeau) appealed the denial of a motion to intervene in a Superior Court civil action brought by Credit Union Central Falls (CUCF or plaintiff) against attorney Lawrence P. Groff (Groff or defendant).  The Court reversed the judgment of the Superior Court, holding that Riendeau was entitled to intervention of right because she claimed a particularized interest in the specific funds attached in the underlying action, and, but for intervention, that civil action might, as a practical matter, have impaired or impeded her ability to protect her interest.  Riendeau’s interest was not adequately represented by Chief Disciplinary Counsel because she endeavored to go beyond merely identifying her interest, and affirmatively sought to establish her superior right to the attached funds in Groff’s client account.  The Superior Court’s supplemental order did not moot the appeal because, although it did provide for notice and an opportunity for a hearing, the supplemental order was not sufficiently specific in describing what would take place at the hearing and, in any case, any such hearing could prove meaningless without the opportunity for discovery before it was held.

State v. Neil Stierhoff, No. 04-117 (April 19, 2005)

The defendant was convicted of misdemeanor stalking in violation of G.L. 1956 § 11-59-2 following a jury-waived trial in the Superior Court.  On appeal, the defendant alleged that the trial justice committed several errors of law.  The Supreme Court rejected the defendant’s appeal, holding: (1) the defendant waived his argument that the state had failed to introduce competent medical evidence to prove that the complainant sustained substantial emotional distress by failing to raise the issue before the trial justice; (2) there was no indication that the trial justice misconceived the evidence or was otherwise wrong in denying the defendant’s motion to dismiss where the evidence established that the defendant was well aware that his advances toward the complainant were unwanted and unwelcome; and (3) the defendant waived his argument that the state’s failure to disclose the content of the testimony of a witness violated Rule 16 of the Superior Court Rules of Criminal Procedure by failing to adequately object to the testimony on such grounds before the trial justice.  The Court also rejected the defendant’s argument that § 11-59-2, as applied to him, was unconstitutionally vague, reasoning that the evidence presented by the state unmistakably established that the defendant knew that the complainant was bothered by his advances. 

State v. Jacques Gautier, No. 04-165 (April 12, 2005)

The defendant, while on probation for a previous conviction, was arrested in 1998 for the murder of Jeffrey Indellicati.  The state presented the defendant as a violator, but a justice of the Superior Court determined that the state had failed to present sufficient evidence that the defendant had killed the victim.  The state petitioned for certiorari, and the Supreme Court quashed the judgment.  State v. Gautier, 774 A.2d 882 (R.I. 2001) (Gautier I).  On remand, the hearing justice deemed the defendant a violator, and the state thereafter formally charged the defendant for the 1998 murder.  The defendant argued that the findings of fact made by the hearing justice during his original probation-revocation hearing precluded the state from prosecuting him for the murder, and moved to dismiss the indictment.  A Superior Court justice denied the defendant’s motion, and he sought review before the Supreme Court.  In denying the defendant’s appeal, the Court revisited its holding in State v. Chase, 588 A.2d 120 (R.I. 1991) and overruled it, holding, pursuant to its decisions in State v. Godette, 751 A.2d 742 (R.I. 2000) and State v. Znosko, 755 A.2d 832 (R.I. 2000), that even if the hearing justice had made additional findings on remand, those findings would in no way preclude the state from prosecuting the defendant for the misconduct underlying the alleged probation-violation.  Accordingly, Chase, insofar as it is inconsistent with the Court’s decision, is expressly overruled. 

Pleasant Mangement, LLC v. Maria Carrasco et al, No. 03-470 (April 12, 2005)

The defendants, Maria Carrasco (Carrasco) and her husband Jose Ortega (collectively defendants), appealed from the denial of their motion to vacate a default decree that foreclosed their right to redeem ownership of a tenement house currently owned by the plaintiff, Pleasant Management, LLC (plaintiff).  In light of the violation of Article V, Rule 4.2 of the Supreme Court Rules of Professional Conduct committed by the plaintiff’s counsel, the Supreme Court held that the motion justice committed in error of law in failing to consider whether that violation constituted excusable neglect under G.L. 1956 § 9-21-2.  Accordingly, the Supreme Court vacated that decision and remanded the case for such a determination.   

State v. Michael B. Champion, No. 04-151 (April 11, 2005)

After a jury convicted the defendant, Michael B. Champion (defendant), on one count of simple assault against his former girlfriend, the defendant sought a new trial on the grounds that the verdict was against the weight of the evidence.  Inexplicably, the motion for new trial, which counsel alleges he filed fifteen days after the jury rendered its verdict, was never received by the trial justice, the Superior Court clerk’s office, or the prosecutor.  Once defense counsel was notified that no one had received the motion, he filed a new motion along with an affidavit stating that he had filed the original motion as required by Rule 33 of the Superior Court Rules of Criminal Procedure. 

At the subsequent hearing on defendant’s motion for new trial, the Superior Court justice denied the defendant’s motion on procedural grounds, concluding that, notwithstanding defense counsel’s affidavit, the record did not support a finding that the motion had been timely filed.  This Court affirmed that decision after concluding that, even taking the defendant’s allegations  about the timing of the initial motion as true, the original motion for new trial was filed fifteen days after the jury rendered its verdict and, thus, exceeded the ten days required by Rule 33.

America Condominium Association, Inc., et al v. IDC, Inc. et al, No. 01-469 (April 8, 2005)

This case came before the Supreme Court on defendants’ petition for reargument of the March 23, 2004 Opinion in America Condominium Association, Inc. v. IDC, Inc., 844 A.2d 117 (R.I. 2004).  The Supreme Court granted the petition for reargument, limiting it to the title/ownership issue raised in the petition and addressed by this Court in section VI of the opinion.  The Supreme Court reaffirmed its earlier holdings in their entirety, but proceeded to clarify certain aspects of its earlier opinion.

The Court held that the Rhode Island Condominium Act distinguishes between development rights, reserved by the parties, and improvement rights, which may persist even after the development rights expire.  In addition, the Supreme Court held that the creation of units in a condominium must follow the statutory requirements set forth in G.L. 1956 chapter 36.1 of title 34.

In addition, the Supreme Court reiterated its conviction that the Rhode Island Condominium Act places a strong emphasis on consumer protection.

Impulse Packaging Inc. v. Laureana S. Sicajan, No. 03-79 (March 31, 2005)

In this Workers’ Compensation case, the Court was called upon to determine whether the Appellate Division of the Workers’ Compensation Court properly dismissed the employee petitioner’s appeal when it found that her reasons of appeal lacked the specificity required by statute and the Workers’ Compensation Court Rules of Practice and Procedure.  On appeal from a trial court decision in favor of the respondent employer, Impulse Packaging, the petitioner employee submitted to the Appellate Division documents consisting of a brief reasons of appeal, stapled to which was an eight-page supplemental memorandum.  The Appellate Division denied and dismissed the appeal for failure to adhere to the specificity requirements of G.L. 1956 § 28-35-28.  The Court granted the petitioner’s petition for writ of certiorari and held that although the Appellate Division was within its discretion in this case to reject the reasons of appeal in the form presented to it, justice requires a result less drastic than summary dismissal.  As a result, the Court quashed the final decree of the Appellate Division and remanded for further proceedings consistent with its opinion. 

Jacksonbay Builders, Inc. v. Farhad Azarmi et al, No. 04-255 (March 24, 2005)

The defendant appealed pro se from a Superior Court judgment confirming an arbitration award in favor of the plaintiff, Jacksonbay Builders, Inc., for $14,163, plus interest.  Arguing that he did not know about a twenty-day limit to reject the arbitration award, the plaintiff argued that it should not have ripened into a judgment.

The Supreme Court held that it would have been within the discretion of the trial justice to enlarge the defendant’s time to reject the award.  However, the Supreme Court also held that the defendant failed to show excusable neglect according to Rule 6(b) of the Superior Court Rules of Civil Procedure and that, therefore, the trial justice did not abuse his discretion when he refused to grant an enlargement of time.  In addition, the Supreme Court did not disturb the award of prejudgment interest in favor of the plaintiff.

Accordingly, the judgment of the Superior Court is affirmed.

John F. McBurney v. The GM Card, No. 04-19 (March 24, 2005)

The plaintiff appealed from an order entered in the Superior Court in favor of the defendant staying his claim of libel per se and compelling arbitration in accordance with the terms of the parties’ credit card agreement.  He argued that because his complaint included a claim for punitive damages, a preliminary evidentiary hearing in Superior Court pursuant to Palmisano v. Toth, 624 A.2d 314 (R.I. 1993) was required and arbitration was not the proper forum.  The motion justice considered the credit card agreement between the parties, and opined that it contained a broad arbitration clause that encompassed all claims, disputes, or controversies arising from, or relating to, the parties’ agreement.  Declining to dismiss the complaint, the motion justice stayed the action and ordered the parties to submit the matter to arbitration consistent with the terms of the credit card agreement.

On appeal, the plaintiff argued that the motion justice erred by staying the action and compelling arbitration.  The defendant, on the other hand, maintained that the arbitration clause between the parties was valid and enforceable, and that to hold otherwise would contravene state and federal statutes and run counter to strong public policy favoring arbitration.

The Supreme Court held that Nevada substantive law applied in this case and that the arbitration agreement was valid and enforceable.  In addition, the Supreme Court underscored that punitive damages generally may be awarded through arbitration without the need for an evidentiary hearing in this case.

Accordingly, the order of the Superior Court is affirmed.

State v. Warren Harris, No. 02-253 (March 17, 2005)

The defendant waived any right he may arguably have had under the Confrontation Clause as construed by the United States Supreme Court in Crawford v. Washington, because he chose to offer the hearsay statement at issue during his cross-examination of prosecution witnesses.  In addition, the Court affirmed the trial court’s conclusion as to the sufficiency of the evidence.

In the Matter of Eileen G. Cooney, No. 05-68 (March 16, 2005)

 

State v. Idalio Fernandes Santos, No. 01-516 (March 16, 2005)

An individual who was convicted of sexual assault before July 1, 1992, but who is released after that date, is not required to register as a sexual offender pursuant to § 11-37-16 or  § 11-37.1-18.

Pawtucket Fraternal Order of Police Lodge #4 v. City of Pawtucket, No. 04-154 (March 16, 2005)

The plaintiff, the Pawtucket Fraternal Order of Police Lodge #4 (union), filed a grievance with the defendant, the City of Pawtucket (city), because the city had changed its method of computing the cost to purchase service credits to a method the union alleged was contrary to the parties’ Collective Bargaining Agreement (CBA).  After its grievance was rejected, the union filed a demand for arbitration; the arbitrator found in favor of the city.  The union then filed a petition to vacate the arbitrator’s award in the Superior Court that was duly granted.  The city appealed to the Supreme Court.

This Court held that the hearing justice erred in two respects when he vacated the arbitrator’s award.  First, the hearing justice misunderstood the parties’ positions and erroneously found that the union and the city agreed that the provision in question was ambiguous.  The city never made such a concession.  Regardless of the parties’ positions, it was passably plausible for the arbitrator to find that the language was unambiguous.  Second, the hearing justice erred in substituting his own judgment for the arbitrator’s in concluding that the revised method used by the city in calculating the cost of service credits was contrary to the CBA.  The arbitrator’s award drew its essence from the CBA, was passably plausible, reached a rational result and thus the hearing justice erred in vacating that award.

Kathleen Murray v. Peter McWalters, in his capacity as Commissioner of the Rhode Island Department of Elementary and Secondary Education, No. 04-107 (March 16, 2005)

After her employer, the Rhode Island Department of Elementary and Secondary Education (RIDE), declined to implement recommended merit increases for two consecutive salary years, the plaintiff, Kathleen Murray (Murray), brought an action in Superior Court.  Murray alleged that RIDE’s personnel regulation pertaining to salary increases was invalid as contrary to state law, and that RIDE had used the illegal regulation to deprive her of recommended salary increases. 

Murray appealed from the motion justice’s grant of summary judgment in favor of RIDE and the other named defendants, including Peter McWalters, in his capacity as Commissioner of Elementary and Secondary Education and the Rhode Island Board of Regents for Elementary and Secondary Education (collectively defendants).  The Supreme Court affirmed, concluding that the trial justice did not err in granting defendants’ motion for summary judgment because the regulation in question was a valid interpretation of a statute committed to the Board’s administration and because Murray had not been deprived of any entitlement.

Morris Maglioli et al v. J.P. Noonan Transporation, Inc. et al, Nelson Ferreira et al v. J.P. Noonan Transporation, Inc. et al, No. 04-136 (March 16, 2005)

The plaintiffs brought suit for injuries suffered in a collision with a tractor-trailer against the defendants, the driver and the owner of the tractor-trailer.  After the jury returned a verdict for the defendants, the trial justice granted the plaintiffs’ motion for a new trial, finding error in the court’s instructions to the jury.  The defendants appealed.  Although the Supreme Court agreed with the trial justice that it was error to give the rear-end collision instruction when the tractor-trailer had been struck from the side, the Court concluded that this error was harmless.  Also, the Supreme Court held that the sudden emergency instruction was warranted because the tractor-trailer driver observed a vehicle spinning ahead on the road and had only seconds to respond.  The order of the Superior Court granting a new trial was vacated.

 

Silvestro Gliottone v. Jeff Ethier et al, No. 04-162 (March 14, 2005)

The plaintiff sued the defendant for personal and property damages stemming from a motor vehicle accident in October 1999.  The defendant moved for summary judgment before a justice of the Superior Court, which held a hearing on the defendant’s motion on the same day that the defendant served notice of that motion on the plaintiff.  The Superior Court granted the defendant’s motion.  On appeal, the Supreme Court vacated the judgment, holding that: (1) the plaintiff’s failure to object before the hearing justice resulted in a waiver of his argument that the Superior Court’s hearing of the defendant’s motion within the ten-day period specified in Rule 56(c) of the Superior Court Rules of Civil Procedure constituted reversible error; and (2) the accident scene photographs, which depict severe damages to both vehicles, were sufficient to create a genuine issue of material fact about whether the defendant was speeding at the time of the collision, and therefore, whether the defendant may have been comparatively negligent at the time of the accident.   

Cynthia L. Guertin v. Arthur R. Guertin, No. 03-377 (March 14, 2005)

The defendant-father appealed from a Family Court order denying his post final judgment motion to modify custody and/or placement for reason that the trial justice improperly considered the results of a polygraph examination.  The defendant also appealed a provision in the order enjoining his current wife from having any contact with the child’s prescriptions.

The Supreme Court held that the record supported the Family Court justice’s decision that the defendant failed to prove a sufficient change of circumstances from those that existed when the Family Court entered the divorce decree and affirmed the denial of the defendant’s motion to modify placement and/or custody.  The Supreme Court held that the Family Court lacked jurisdiction over the defendant’s current wife and reversed and vacated the provision enjoining her from being involved in the child’s pharmacological needs.

Edward J. Plunkett v. State of Rhode Island, No. 03-473 (March 10, 2005)

The petitioner, State of Rhode Island, sought review by writ of certiorari of an order of the Superior Court denying its motion for summary judgment.  The petitioner contended that the doctrine of res judicata barred the respondent from challenging his termination on the grounds of age and disability discrimination because the respondent had the opportunity to litigate those issues in a previous action.  In the respondent’s original lawsuit, he was denied injunctive relief from his termination from state employment because he was an at-will employee.  The respondent argued that he could not have raised the age and disability discrimination issues in his original lawsuit because he had not been granted a right-to-sue letter from the Rhode Island Commission for Human Rights, as required under G.L. 1956 § 28‑5‑24.1. 

The Supreme Court held that the respondent was precluded from litigating the age and disability discrimination claim because it arose out of the same transaction as the original lawsuit.  The respondent’s lack of a right-to-sue letter did not prevent the preclusive effect of the earlier judgment from reaching the discrimination claims.  The respondent never sought to amend his original complaint to include a discrimination claim.  The order of the Superior Court is quashed, and the case is remanded for entry of summary judgment in favor of the petitioner.

Blue Coast, Inc. v Suarez Corporation Industries, No. 03-455 (March 10, 2005)

The plaintiff, a wholesale jewelry manufacturer, brought this breach of contract action against the defendant, a national mail-order catalog retailer, after a dispute arose over the plaintiff’s compliance with order specifications in the manufacture of costume jewelry for the defendant.  The defendant counterclaimed for breach of contract.  A jury found in favor of the plaintiff in the sum of $349,249.12 and for the defendant in the sum of $48,715 on its counterclaim.  The defendant appealed.  The Supreme Court affirmed, holding that: (1) the trial justice’s decision to exclude the testimony of an expert witness offered by the defendant was not an abuse of discretion; (2) the trial justice’s decision to exclude certain test results offered by the defendant on the grounds that the results were confusing and beyond the comprehension of the jury was not an abuse of discretion; (3) the defendant waived its argument that the written documents exchanged between the parties represented a complete integration of the manufacturing agreement between them when it failed to renew its motion for judgment as a matter of law at the close of the evidence or after the jury verdict; and (4) the jury’s award on the defendant’s breach of contract counterclaim did not lack a reasonable basis in the evidence. 

Sycamore Properties, LLC v. Tabriz Realty, LLC et al, No. 03-635 (March 8, 2005)

Alexandra L. Pollard v. Acer Group, A R.I. General Partnership, No. 03-34 (March 8, 2005)

ABAR Associates, a RIGP v. Emilio Luna, Jr., et al, No. 02-391 (March 8, 2005)

On March 8, 2005, the Rhode Island Supreme Court decided the following three tax sale cases.

Sycamore Property v. Tabriz Realty et al.is an appeal of a grant of summary judgment in favor of the defendants.  The plaintiff asserted that the motion justice erred in finding that taxpayers who failed to contest the validity of a tax sale for lack of notice in the subsequent foreclosure proceeding could not seek to vacate the foreclosure decree in an independent action.  The plaintiff asserted that the recent amendment to § 44‑9‑24, permitting a taxpayer to institute a separate action to vacate a foreclosure decree for "inadequacy of notice amounting to a denial of due process or for the invalidity of a tax sale" applies to the facts of the case.

On appeal, the Supreme Court reversed the judgment, concluding that the amendment to § 44‑9‑24 is ambiguous and, therefore, must be construed in favor of the taxpayer.  The amended language "inadequacy of notice amounting to a denial of due process" could reasonably be interpreted to mean either notice of the tax sale, notice of the foreclosure petition, or both and, because the amendment specifically provides that "a separate action" may be instituted "for the invalidity of the tax sale," the statute is ambiguous.

In ABAR Associates v. Luna, ABAR Associates appealed from a Superior Court order that vacated a final decree forever foreclosing and barring all rights of redemption with respect to real estate that ABAR had purchased at a tax auction sale.  The order also permitted First Union National Bank, an assignee of a mortgage on the property, to intervene, file an answer to the foreclosure petition, and redeem the property.  First Union had failed to record its mortgage interest until after entry of the final decree, and therefore had not received notice of the foreclosure petition.  The Supreme Court determined that the Superior Court erred by allowing First Union to intervene, and thereby challenged the validity of the foreclosure process, after entry of the final decree.  The order was therefore reversed and the final decree reinstated.

In Pollard v. Acer Group, the appellant’s failure to have raised before the Superior Court a due process argument as to the constitutionality of the Rhode Island tax sale statute, G.L 1956 chapter 9 of title 44, precluded her from raising the issue before this Court on appeal.  The judgment of the Superior Court was affirmed by this Court.

State v. Jerry T. Badessa et al, No. 04-180 (March 1, 2005)

After granting the state’s petition for writ of certiorari, the Court heard oral arguments  on the question of who meets the definition of "first offender" for the purposes of the expungement statutes as codified at G.L. 1956 §§ 12-1.3-1 through 12-1.3-3.  After the hearing justice expunged the records of respondents Jerry T. Badessa, David W. Brunetti, and Brian L. Dexter, the state urged the Court to quash the expungement orders because each of the respondents’ criminal records contained multiple convictions.  In reply, the respondents argued that multiple convictions do not render them ineligible for expungement.  After applying our maxims of statutory interpretation to the expungement statutes, the Court determined that the respondents’ interpretation of the relevant statutes would lead to the absurd result of categorizing anyone with a criminal record, regardless of its length or complexity, as a first offender.  Instead, the Court concluded that the Legislature did not intend for the expungement statutes to apply to individuals with multiple convictions.  Therefore, the Court quashed the orders expunging the respondents’ convictions, and remanded the record to the Superior Court. 

Kerri D. Fossa v. Richard D. Fossa, No. 04-89 (February 25, 2005)

The plaintiff’s pro se appeal challenging changes of venue that have occurred in this case is dismissed.  The order the plaintiff appeals from makes no reference to this venue issue.  Pursuant to Article I, Rule 3(c) of the Supreme Court Rules of Appellate Procedure, this Court does not have appellate jurisdiction over the issue raised by the plaintiff.

State of Rhode Island, Department of Corrections v. Rhode Island Brotherhood of Correctional Officers, No. 03-42 (February 25, 2005)

The State of Rhode Island, Department of Corrections (DOC) terminated a correctional officer after concluding that allegations of theft, possession of stolen items, and possession of marijuana and cocaine were factually substantiated.  The Rhode Island Brotherhood of Correctional Officers (RIBCO) filed a grievance on behalf of the officer, alleging that his dismissal violated the collective bargaining agreement because it was without just cause.   An arbitrator found that the DOC lacked just cause to terminate the officer and ordered reinstatement, with full back pay, benefits, and statutory interest.  The state filed a motion in Superior Court to vacate the arbitration award and argued that the arbitrator’s findings were irrational, that the arbitrator exceeded his authority, and that the arbitrator improperly substituted his judgment for that of the DOC director. The union filed a countermotion to confirm the arbitrator’s award.  The Superior Court justice ruled that the arbitrator’s findings were not irrational, and that the arbitrator did not substitute his judgment for that of the DOC director with regard to an illegal cable hookup. The Superior Court justice denied the state’s motion to vacate the arbitrator’s award of back pay and benefits, and granted RIBCO’s motion to confirm the arbitrator’s award of back pay and benefits.  The Superior Court justice further granted the state’s motion to vacate the arbitrator’s award of prejudgment interest and denied RIBCO’s motion to confirm the arbitrator’s award of prejudgment interest. 

The Supreme Court held that the arbitrator reached an irrational result in concluding that the officer’s removal and possession of state property did not amount to theft.  The Supreme Court further held that because the charges of theft of state property and wrongfully obtaining telecommunication service were factually substantiated, the arbitrator impermissibly substituted his judgment for that of the director in reversing the director’s decision to terminate the officer.  The Supreme Court reversed the Superior Court justice’s orders and vacated the arbitrator’s award. 

Gem Plumbing & Heating Co., Inc. v. Robert V. Rossi, et al, No. 03-386 (February 22, 2005)

Gem Plumbing & Heating Co., Inc. (Gem) appeals from a Superior Court judgment in favor of the property owners, Robert V. Rossi and Linda A. Rossi (collectively Rossis), declaring that the Mechanics’ Lien Law violated the Due Process Clauses of the Fourteenth Amendment to the United States Constitution and Article 1, Section 2 of the Rhode Island Constitution.  Analyzing the amended version of the statute, this Court applies the Mathews-Doehr balancing test, which requires us to weigh (1) the "consideration of the private interest that will be affected by the prejudgment measure"; (2) "an examination of the risk of erroneous deprivation through the procedures under attack and the probable value of additional or alternative safeguards"; and (3) giving "principal attention to the interest of the party seeking the prejudgment remedy, with, nonetheless, due regard for any ancillary interest the government may have in providing the procedure or forgoing the added burden of providing greater protections."  Connecticut v. Doehr, 501 U.S. 1, 11 (1991).

Primarily because of Gem’s preexisting interest in the Rossis’ property and the availability of a prompt post-deprivation hearing pursuant to G.L. 1956 § 34-28-17.1, we hold that the statute passes constitutional muster.  We accordingly vacate the judgment of the Superior Court. 

F.C.C., Inc. v. Richard A. Reuter et al, No. 03-583 (February 22, 2005)

The plaintiff contractor appealed from a Superior Court decision granting summary judgment in favor of the defendant property owners.  The plaintiff argued that the trial court incorrectly ruled that the Rhode Island Mechanics’ Lien Law, found at G.L. 1956 chapter 28 of title 34, is unconstitutional.  Interpreting the recently amended mechanics’ lien statute, the Court referred to its opinion in Gem Plumbing & Heating Co. v. Rossi, No.2003-386-A. (R.I., filed Feb. 22, 2005) and held that the mechanics’ lien statute does not violate the constitution.  Therefore, the Court sustained the plaintiff’s appeal, and reversed the judgment of the Superior Court.  The Court remanded the case to the Superior Court for further findings of fact relating to the defendants’ claims regarding the plaintiff’s alleged failures to follow the mandatory directives of the mechanics’ lien statute. 

State of Rhode Island, Department of Corrections v. Rhode Island Brotherhood of Correctional Officers, No. 03-313 (February 17, 2005)

The Supreme Court vacated an order of the Superior Court that confirmed an arbitration award, in which the arbitrator declared a grievance arbitrable under the terms of a collective bargaining agreement unrelated to the grievant.  The grievant, as a member of a state-employed correctional officer bargaining unit, is not entitled to benefits under a collective bargaining agreement that, by its terms, does not extend benefits to his bargaining unit.

Connecticut Valley Homes of East Lyme, Inc. v. Raymond Bardsley, et al, No. 03-513 (February 15, 2005)

In this appeal arising from a decision in a jury-waived case seeking payment on a construction contract, the trial justice erred by making rulings in a letter to counsel. After entertaining a motion to reopen the evidence and permitting expert testimony on the defendant’s counterclaim, the trial justice further erred by striking the counterclaim and declaring that the expert testimony was an offer of proof. 

David Cruz v. Wausau Insurance et al, No. 04-65 (February 8, 2005)

The Superior Court motion justice did not abuse his discretion in denying plaintiff’s petition for declaratory relief that sought a ruling concerning the applicability of the doctrines of res judicata and collateral estoppel to the issues involved in an arbitration proceeding.

Shirley Bergeron v. Joseph J. Roszkowski, et al, No. 03-26 (February 7, 2005)

The plaintiff appeals from a Superior Court judgment dismissing her legal malpractice action with prejudice for the plaintiff’s failure to prosecute her complaint.

The Supreme Court found that the trial justices did not abuse their discretion in ruling that the plaintiff was not entitled to a further continuance and in dismissing her case with prejudice for failure to prosecute.  The judgment of the Superior Court is, therefore, affirmed.

Adrian Bustamante v. Ashbel T. Wall, No. 04-4 (February 7, 2005)

The applicant was convicted of first-degree murder and conspiracy to commit murder and sentenced to life imprisonment without the possibility of parole.  In his motion for post-conviction relief, the pro se applicant asserted a myriad of self-declared constitutional violations that he believed warranted that his conviction and sentence be set aside.  First, the applicant alleged ineffective assistance of counsel by both his trial counsel and appellate counsel.  Second, the applicant challenged the composition of both the grand jury and the petit jury.  Third, the applicant alleged that he was denied a fair trial by the prosecutor’s misconduct.  Finally, the applicant asserted that the trial justice violated his due process and equal protection rights by denying the jury the right to determine what, if any, aggravated enumerated circumstances were involved in accordance with G.L. 1956 § 12-19.2-1 and G.L. 1956 § 11-23-2.  The Supreme Court found no merit to the applicant’s claims and affirmed the judgment denying him post-conviction relief.

Athanasia Koutroumanos v. Thomas Tzeremes, No. 03-267 (February 7, 2005)

The defendant-husband appealed from a Family Court order that distributed the marital estate and awarded alimony and counsel fees to the plaintiff-wife.  The defendant averred that the trial justice erred in both calculating and assigning the marital estate, by failing to address the tax ramifications associated with the defendant’s need to liquidate marital assets to pay the plaintiff her share of the equitable distribution, and by failing to make the required findings of fact necessary to sustain the award of alimony and counsel fees.  In its order, the Family Court awarded the liquidated proceeds of the parties’ investment account to the plaintiff, assigned a credit card debt to defendant, and distributed all other marital assets equally.  The proceeds of the investment account previously had been paid to the plaintiff as "partial equitable distribution."  The Supreme Court held that the Family Court erred by failing to credit the defendant with one-half the value of the investment account.  The Supreme Court affirmed the order in all other respects. 

Blue Cross & Blue Shield of Rhode Island v. Beverly E. Najarian, Director of the Department of Administration, in her official capacity as the Chief Purchasing Officer for the State of Rhode Island and Providence Plantations et al, No. 04-361 (February 3, 2005)

In its search for a health care insurance provider for 52,000 state employees, retirees and dependants, the State of Rhode Island (State) accepted competitive sealed bids from two companies, United Healthcare (United) and Blue Cross and Blue Shield of Rhode Island (Blue Cross), for a three-year contract to commence on January 1, 2005.  After careful consideration, the contract was tentatively awarded to United.  Citing several deficiencies in both the bid process and United’s proposal, Blue Cross filed a complaint in the Superior Court seeking an injunction preventing the State from implementing the award and forcing the State to resolicit bids. 

Subsequent to a hearing on preliminary injunction that was later consolidated with a trial on the merits, the Superior Court justice issued a written opinion granting Blue Cross’s request, finding the State had committed six "wrongful acts," in violation of the State Purchases Act, G.L. 1956 chapter 2 of title 37.  Specifically, the trial justice found that the State (1) modified its Request for Proposals (RFP) after bids were submitted to protect United from a possible disadvantage after it had submitted a "seemingly non-responsive bid" by offering a mature quote from administrative fees when an immature quote was requested; (2) modified the RFP after bids had been submitted to reward United for offering to refund a portion of its administrative fees in lieu of guaranteeing to return a percentage of the pharmacy rebates as requested by the RFP; (3) modified the RFP after bids had been submitted to correct for United’s failure to submit two quotes that had been requested for "illustrative" purposes only; (4) penalized Blue Cross because it was unable to provide a quote requested in the RFP because Blue Cross was subject to regulations by the Department of Business Regulation and United was not; (5) permitted United to modify its bid after "best and final" offers were submitted to remove a charge that had been added since the original bids were submitted; and (6) contacted United off the record, after "best and final" offers had been submitted, to request the insurance company to provide an additional service, at no additional cost, in an attempt to thwart an expected bid protest.

In light of our holding in H.V. Collins Co. v. Tarro, 696 A.2d 298 (R.I. 1997), the only question on appeal was whether the State committed a palpable abuse of discretion in awarding the contract to United.  The Supreme Court held that, although the State’s officials were ill-prepared, their conduct did not rise to the level of palpable abuse of discretion at any time.  The trial justice erred by substituting her own judgment for the awarding authority’s, by failing to give the awarding authority’s decision the statutorily mandated presumption of correctness, and by failing to consider the overall comprehensiveness of the bidding process.  Therefore, this Court vacated the injunction issued in the Superior Court and reinstated the contract as awarded to United.

In the Matter of Mark C. Bonn, No. 05-4 (February 3, 2005)

The Supreme Court Disciplinary Board (board) recommended that the respondent, Mark C. Bonn (respondent), be monitored in his practice of law by a member of the bar for a twelve-month period for failing to maintain a client account and converting client funds as proscribed by the Supreme Court Rules of Professional Conduct.  The Court departed from the board’s recommendation and concluded that respondent should be publicly censured in addition to being monitored in his practice for a period of twelve months.

Giacomo D. Catucci v. Alice M. Pacheco, alias d/b/a Wholesale Countertops & Solid Surface, Inc. et al, No. 01-280 (February 2, 2005)

This appeal arises from a claim for unpaid rent and utilities in the context of a commercial lease that was tried before a jury in Superior Court.  At the close of the plaintiff’s case, the trial justice sua sponte added new party defendants pursuant to Rule 15 of the Superior Court Rules of Civil Procedure.  On appeal, the Supreme Court vacated the judgment against the new party defendants deeming it prejudicial to add new parties without notice.        

Alexis Doctor v. State of Rhode Island, No. 04-78 (January 31, 2005)

After being convicted of murder, conspiracy, and assault with intent to commit murder, Alexis Doctor filed an application seeking postconviction relief in the Superior Court.  The applicant advanced two arguments in support of his application:  First, he argued that his attorney’s deficient performance during his trial amounted to a violation of his right to counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution.  Secondly, he alleged that there was new and previously undiscoverable evidence warranting a new trial.  The Superior Court denied the application and we affirmed, holding that (1) defense counsel’s failure to instruct the applicant on and to object to the court’s Fenner instruction did not amount to ineffective assistance of counsel, (2) defense counsel’s failure to pursue a line of questioning at trial was not unreasonable, and (3) the applicant’s new evidence was not sufficient to require a new trial, because it was both available at the time of his trial and not credible. 

Mary D'Amico v. Johnston Partners et al, No. 04-3 (January 31, 2005)

The plaintiff moved to substitute the defendant tortfeasor’s liability insurance carrier under G.L. 1956 § 27-2-2.4 approximately six years after the completion of the defendant’s Chapter 11 bankruptcy reorganization.  The Superior Court denied the motion on the grounds that § 27-2-2.4 did not permit a claimant to join an insurer after the conclusion of the bankruptcy proceeding.  On appeal, the Court reversed, holding that both the plain and unambiguous language of the statute and the tenets of statutory interpretation did not allow it to attach such a condition to § 27-2-2.4.  Accordingly, the Court concluded as a matter of law that the motion justice should have granted the motion to substitute in accordance with Rhode Island law.

Edward Gucfa v. Brenda J. King et al, No. 03-624 (January 28, 2005)

The plaintiff brought suit against the two defendants for injuries suffered while the plaintiff was doing construction work on property jointly owned by the defendants.  The defendants filed a motion to dismiss for failure to effectuate service within 120 days as required by Rule 4(l) of the Superior Court Rules of Civil Procedure.  At a hearing on the motion, the plaintiff requested additional time to serve the defendants, and the motion justice continued the motion.  Nearly a year later, a second motion justice found that the plaintiff’s attempts to serve the defendants in a timely manner were unreasonable, and he dismissed the action. 

The Supreme Court affirmed the dismissal of the action.  The Supreme Court concurred with the second motion justice that the plaintiff had failed to show good cause why service had not been made within 120 days.  The Supreme Court also held that the law of the case doctrine did not apply.  The first motion justice had not ruled on the motion; rather, the motion was continued.  Further, the purported "ruling" of the first motion justice never was reduced to writing and entered in the record.

Kerri Lucier et al v. Impact Recreation, Ltd. et al, No. 04-0011 (January 26, 2005)

The plaintiffs, the parents of a young boy injured while skateboarding at a commercial skate park, filed this premises liability action against the business entity operating the skateboard facility, one of its principals, and the business entity’s landlord.  The plaintiffs alleged that the defendants failed to maintain the property in a safe condition, and that the defendant-landlord failed to ensure that the commercial tenant was not engaged in an activity that was inherently dangerous to the public at large, and negligently permitted and maintained dangerous conditions on the property.  The plaintiffs also sued for loss of consortium.  The Superior Court granted the defendant-landlord’s motion for summary judgment.

On appeal, the Supreme Court affirmed the grant of summary judgment.  The Court reiterated that a commercial landlord is not liable for injuries that the guest of a tenant suffers on the leased premises, unless the injury results from the landlord’s breach of a covenant to repair in the lease, or from a latent defect known to the landlord but not known to the tenant or guest, or because the landlord subsequently had assumed the duty to repair.  The Court concluded that the plaintiffs had not shown any of the exceptions to the general rule that a commercial landlord is not liable for injury to third persons on the leased premises.  In addition, the Supreme Court declined to recognize the plaintiffs’ theory of negligent entrustment of real estate as a means for recovery. 

George McCarthy et al v. Environmental Transportation Services, Inc., No. 03-376 (January 25, 2005)

The petitioners sought review by writ of certiorari of a decree of the Appellate Division of the Workers’ Compensation Court (Appellate Division) denying a petition for review of a benefits determination made by the respondent.  This petition called upon the Supreme Court to interpret the meaning of "excess damages" as it is used in the formula set forth in G.L. 1956 § 28‑35‑58 for determining the number of weeks an injured employee’s weekly compensation benefits should be suspended to account for damages recovered from a responsible third party.  The Appellate Division had concluded that the term "excess damages" was the gross amount of an employee’s tort recovery, after reimbursement of prejudgment weekly compensation benefits.  

The Supreme Court held that "excess damages," for purposes of § 28‑35‑58, means the amount remaining, if any, of compensatory damages recovered from a responsible third party after deductions for the reimbursement of pre-settlement or prejudgment workers’ compensation benefits and that portion of attorney’s fees and court costs attributable to the reimbursed amount.  The Supreme Court quashed the judgment and remanded the case for further proceedings.

Maribel Oyola et al v. Carmen Burgos et al, No. 04-135 (January 21, 2005)

The plaintiffs, personal injury claimants, appealed from the Superior Court’s grant of summary judgment on the issue of the defendant Avis Rent-A-Car’s (Avis) liability for injuries suffered from an accident in one of Avis’s vehicles.  The Court affirmed, holding that the hearing justice did not err in refusing to apply New York law, when the plaintiffs and driver all were Rhode Island residents, the road trip’s origin and intended terminus were in Rhode Island, and the accident’s New York location was merely fortuitous.  Because the instant case presented a conflict only about which state’s law governed the relationship of the parties and not negligence, the Court declined to apply its earlier conflict of laws doctrine that the place of the injury was the most important factor in torts conflicts cases.  Accordingly, the Court held that the motion justice did not err in granting defendant’s motion for summary judgment.

In re Shawn B. et al, NO. 02-703 (January 21, 2005)

The father-respondent, Thomas C. Johnson (respondent), appealed from a Family Court decree terminating his rights to two sons, Shawn and Brandon.  The respondent alleged that the Family Court lacked neutrality because a justice from that court instructed the Department of Children, Youth and Families (DCYF) to file a petition to terminate his rights when the children’s legal guardians sought to adopt them.  In addition, the respondent asserted that he did not abandon his children but that DCYF failed to arrange visitation since he was imprisoned for murdering their mother.  Finally, the respondent argued that this matter should have been delayed until his appeals for post-conviction relief were heard by the Supreme Court.

This Court held that the Family Court was not prejudicial against the father-respondent because the justice who ordered DCYF to file the termination petition recused herself from the remaining proceedings.  Additionally, by ordering DCFY to file an involuntary termination petition, the Family Court justice was protecting the respondent’s right by guaranteeing him representation by a court-appointed attorney.  Concerning the respondent’s assertion that he did not abandon his children, this Court found that DCYF did not have a duty to arrange for visitation and that the respondent had abandoned his children long before DCYF became involved.  Finally, this Court found no indication that the respondent had any petitions for post-conviction relief pending; even if he had, that was no reason to delay this matter before the Family Court, thus destroying the children’s chances for adoption, after the respondent has already potentially destroyed their lives by committing such a heinous crime against their mother.

In re Raymond C. et al, No. 02-329 (January 21, 2005)

This is an appeal from a decree terminating the parental rights of the respondent-parents by a justice of the Family Court.  The respondents alleged that the Department of Children, Youth and Families (DCYF) failed to make reasonable efforts to help reunify these parents with their four children.  The Supreme Court rejected the appeal, concluding, as did the trial justice, that the mother’s chronic mental illness was the primary reason she was unfit to parent her children.  Despite significant mental health services, this problem remained largely unresolved.

Although the Supreme Court agrees with the trial justice that DCYF should have made greater efforts toward reunification, until the mother’s mental illness was stabilized these efforts would be futile.  With respect to the respondent-father, the trial justice found, and the Supreme Court agreed, that he never participated in a meaningful reunification plan and was largely absent.  The judgment is affirmed.

George F. Sanzi et al v. Taranath M. Shetty, M.D., et al v. Medical Malpractice Joint Underwriting Association of R.I., No. 02-443 (January 20, 2005)

The defendant physician and his professional services corporation appeal from a Superior Court decision granting summary judgment in favor of the third-party-defendant insurance provider, Medical Malpractice Joint Underwriting Association of Rhode Island (JUA).  After the plaintiff family members of the deceased, Rebecca Caldarone, sued the defendants, alleging that Dr. Shetty’s sexual abuse and battery of Caldarone led to her suicide and untimely death, JUA refused to defend or indemnify Shetty or Shetty, Inc.  Subsequently, the defendants filed a third-party complaint against JUA, but their claims were denied by the hearing justice, who found that JUA had no duty to defend or indemnify the defendants for the claims alleged in the plaintiffs’ complaint and thus was entitled to judgment as a matter of law.  On appeal, the Court held that the allegations of sexual abuse do not fall within the "professional services" coverage of Shetty’s insurance policy because Shetty’s professional services were only remotely incidental to the allegations, and that based on the inferred intent doctrine, the policy’s coverage of accidental occurrences did not encompass intentional sexual molestation.  In addition, the Court saw no merit in the defendants’ argument that a criminal-act exclusion found in later policies implies criminal-act coverage in the policies at issue in this appeal.  

 

State v. Gina M. Loccisano, No. 03-361 (January 19, 2005)

The defendant, Gina M. Loccisano (defendant), appeals from a conviction of one count of larceny of a controlled substance issued after a bench trial.  The defendant alleges that the state failed to prove its case beyond a reasonable doubt.  Both the defendant and the state present arguments based on an appeal from a motion to dismiss.  Since no such motion ever was made or filed during or after the trial, however, this Court is not required to consider the merits of her appeal because the defendant failed to preserve the issue.  In any event, the state presented sufficient evidence at trial to support the trial justice’s finding, beyond a reasonable doubt, that the defendant was guilty of one count of larceny of a controlled substance. 

Michelle Ritter v. Mantissa Investment Corporation et al, No. 02-584 (January 19, 2005)

After the parties divorced, Michele Ritter (plaintiff) brought a separate suit against Donald Ritter (defendant) alleging that the defendant conveyed 50 percent ownership of their home, known as the Nunnery, to the plaintiff during the marriage and that the divorce did not affect that property interest.  A motion justice granted the defendant’s summary judgment motion on two grounds:  (1) the doctrine of res judicata barred litigation of the ownership of that real estate after the divorce proceeding concluded in Family Court; and (2) the release provisions of the agreement entered into between the plaintiff and the defendant barred the plaintiff’s claim.  The Supreme Court reversed on both grounds, holding that the defendant:  (1) was not entitled to judgment as a matter of law on the doctrine of res judicata; and (2) that a genuine issue of material fact existed about whether the release language barred the plaintiff’s claim.

State v. Franklin D. Becote, No. 03-637 (January 18, 2005)

The defendant appeals from a Superior Court judgment of conviction for one count of breaking and entering a dwelling in violation of G.L. 1956 § 11‑8‑2 and one count of conspiracy in violation of G.L. 1956 § 11‑1‑6.  The Supreme Court held that the trial justice did not abuse his discretion by failing to grant a continuance when the defendant asked to dismiss his appointed counsel.  The defendant agreed to proceed to trial and never asked to represent himself.  The defendant’s motion for a new trial was denied without error.

State v. Keith Werner, No. 96-155 (January 12, 2005)

The defendant, Keith Werner, appealed his convictions stemming from the August 1990 robbery of the West Warwick Credit Union.  Werner’s appeal to the Court alleged violations of the Interstate Agreement on Detainers Act (IADA), G.L. 1956 chapter 13 of title 13, and asserted a claim that the trial justice committed reversible error when she instructed the jury that an extrajudicial identification made by selecting a defendant’s photograph from a group of people is generally more reliable than an identification made after the presentation of the defendant alone.  Although acknowledging that the Court had already ruled on the very same issues in Werner’s previous appeals to this Court on other criminal convictions, Werner urged the Court to revisit its previous holdings.  The Court refused to reconsider its decisions on both the IADA and jury instruction issues, citing both collateral estoppel and stare decisis.  Therefore, the Court denied the defendant’s appeal and remanded the papers to the Superior Court. 

State v. Sythongsay Luanglath et al, No. 94-732 (January 10, 2005)

This case was first heard in the Superior Court in 1993 when a jury convicted each of the defendants, Sythongsay and Soukky Luanglath (collectively defendants), on one count of burglary and three counts of robbery.  The defendants appealed from the trial justice’s denial of their motion for new trial.  We remanded the case to the trial justice to make determinations about the reliability of the testimony presented against the defendants.  The trial justice complied and the defendants yet again appealed to this Court.  On their second appeal, the defendants argued that their convictions were against the weight of the evidence, that their rights were violated when the trial proceeded with only eleven jurors, and that the trial justice erred in denying their motion to pass after she failed to reveal the deadlocked jury’s numerical split, which inadvertently had been disclosed to her in a note from the jury.

This Court affirmed the trial justice’s denial of the defendants’ motions for new trial, finding that the evidence supported the conviction, no newly discovered evidence required a new trial, and defendants’ due process had not been violated.  Furthermore, the defendants’ rights to a jury of twelve were not violated when one of the jurors was dismissed because the trial justice obtained knowing, intelligent and voluntary waivers from both the defendants before she dismissed the juror.  Finally, this Court reversed the trial justice’s decision denying the defendants’ motion to pass the case.  The trial justice erred by failing to disclose the contents of the note sent by the jury because it contained a numerical split.  In light of this failure, and the fact that the jury was split ten to one, this Court held that the supplemental instructions, the "Allen charge," issued to the jury were improper.    

Therefore, the convictions against the defendants were vacated and the case remanded to the Superior Court for a new trial.

 

State v. David Higham, No. 2003-237 (December 23, 2004)

The defendant, David Higham, appeals from a judgment of conviction for two counts of first-degree child molestation sexual assault in violation of G.L. 1956 § 11‑37‑8.1 and § 11‑37‑8.2 entered in the Superior Court.  The defendant was sentenced to concurrent terms of forty years on each count, with twenty years to serve at the Adult Correctional Institutions, and twenty years suspended, with twenty years of probation.

In his appeal, Higham contended that the trial justice erred in refusing to pass the case after a witness testified that she had discussed the incidents of sexual assault with the victim in counseling.  The Supreme Court held, however, that the witness’s testimony did not constitute vouching for the credibility of the complaining witness.  In addition, after the testimony in question, the trial justice gave a curative instruction to the jury that was sufficient to offset the remark made by the witness. Defense counsel did not object to this instruction and, therefore, the issue was not further preserved for appellate review.

 Furthermore, Higham argued on appeal that the trial justice erred in denying his motion for a judgment of acquittal on count 1, because the evidence was not sufficient to establish an act of cunnilingus.  The Supreme Court held that evidence of actual vaginal penetration is not required to establish an act of cunnilingus.

The judgment of conviction was affirmed.

State V Mostafa Ibrahim  Docket No: 02-0101 (December 23, 2004)

The defendant appealed from a judgment of conviction for second-degree child molestation sexual assault in violation of G. L. 1956 § 11‑37‑8.3 and § 11‑37‑8.4.  The defendant was sentenced to fifteen years, with three years to serve in prison.

On appeal, defendant contended that the trial justice incorrectly applied the sentencing benchmarks.  The Supreme Court held that defendant was precluded from challenging the validity of a sentence on direct appeal, and that he must first file a motion in Superior Court pursuant to Rule 35 of the Superior Court Rules of Criminal Procedure. 

Next, defendant argued that the trial justice presented the jury with erroneous instructions, denying him due process and a fair trial.  The Supreme Court held that the trial justice’s instructions, when viewed in their entirety, presented the jurors with all the necessary elements that the state had to prove and informed the jurors with the appropriate burden of proof to be applied in this case.

In his third argument on appeal, the defendant, a native of Egypt, argued that he was prejudiced at trial by his difficulties with the English language.  The Court held that this issue was waived because it had not been raised properly below.

Last, the defendant asserted that the state violated his constitutional rights because it failed to provide him with exculpatory evidence.  The Court found this assertion to be merit less.  The judgment of conviction was affirmed.

Wayne Cady v. IMC Mortgage Company et al, No. 02-484 (December 20, 2004)

The plaintiff, Wayne Cady (Cady), brought suit against his employer, RMC Holdings, Inc., a wholly owned subsidiary of IMC Mortgage Company (collectively corporate defendants), and Harry Struck (Struck), Cady’s former supervisor, after defendants terminated Cady while the parties were still under a five-year employment agreement.  The jury found that Cady was terminated without cause and, therefore, was entitled to damages for breach of contract.  In addition to many other counts, the jury determined that Struck surreptitiously had listened in on Cady’s telephone conversations in violation of the federal wiretapping statute and that Struck had invaded Cady’s privacy.  The jury awarded Cady more than $500,000 in damages.  The trial justice amended the damages after trial, finding that $100,000 in punitive damages assessed against corporate defendants was inappropriate because the jury had not awarded any compensatory damages against corporate defendants.  The parties appealed to this Court on numerous grounds.

The Supreme Court affirmed the trial justice’s rulings on all but one issue.  The trial justice’s decision relating to defendants’ Workers’ Compensation argument; to Struck’s federal wiretapping arguments; to Cady’s punitive damages arguments were affirmed.  The Court concluded, however, that the trial justice had improperly instructed the jury on the doctrine of commercial frustration.  Therefore, Cady should have been awarded the full amount of damages for the time remaining on his employment contract.  The case was remanded to the Superior Court to make the appropriate adjustment and for a hearing on attorney’s fees and costs.

In re Ephraim L. et al, No. 02-716 (December 20, 2004)

The respondent, Linda A. Logan, appealed from the Family Court’s finding that her children, Ephraim and Theodora Logan, were "dependent" on the court for protection and assistance.  In addition, Logan argued that the Family Court had violated her First Amendment right to the free exercise of religion under the United States Constitution.  The Court affirmed the Family Court judgment, holding that there was sufficient evidence to support the trial justice’s dependency finding.  Because Logan did not assert them at trial, her free exercise claims were waived.

Harvard Pilgrim Health Care of New England v. Gelati, No. 03-197 (December 17, 2004)

The plaintiff, Harvard Pilgrim Health Care, appealed three Superior Court judgments upholding the City of Providence’s tangible personal property assessments for the tax years 1997, 1998, and 1999.  Harvard Pilgrim’s overriding claim on appeal was that the city had assessed its tangible personal property in excess of fair market value, violating G.L. 1956 § 44-5-12.  To succeed on its over-assessment claim, Harvard Pilgrim had the burden of proving the fair market value of its property.  For the 1997 and 1998 tax years, the trial justice rejected the plaintiff’s retroactive appraisal evidence as unpersuasive.  Because the plaintiff’s expert provided only a "bald reference" to experience, without more, as justification for his appraisal conclusions, the Court held that the trial justice did not abuse his discretion. 

Harvard Pilgrim next alleged that, with respect to its 1999 tax appeal, the Superior Court erred in concluding that certain tolling provisions of the Insurer’s Rehabilitation and Liquidation Act, G.L. 1956 § 27-14.3-19 and § 27-14.3-28, did not cure Harvard Pilgrim’s untimely appeal to the Board of Tax Assessment Review.  The Court held that the trial justice erred in concluding that the term "action or proceeding" only applied to toll statutes of limitation in conjunction with newly instituted litigation by insurance companies in rehabilitation or liquidation.  Accordingly, the Court remanded the case to the Superior Court for further proceedings on the merits of plaintiff’s claims.

Thomas Contois et al v. Town of West Warwick et al, No. 03-379 (December 17, 2004)

The plaintiffs, parents of an eight-year-old child who tragically died after a fever-induced seizure caused him to aspirate his own vomit, sued the defendants, the Town of West Warwick and individual Emergency Medical Technicians, for gross negligence in the delivery of emergency medical treatment to their son.  The plaintiffs allege that a delay of approximately sixty seconds took place before the EMTs suctioned the child, and that the delay doomed any chance their son had to survive the seizure and resulting aspiration.  After a trial in the Superior Court, a jury returned a verdict in favor of the defendants.  The plaintiffs appealed, arguing that the trial justice’s failure to instruct the jury on the loss of chance doctrine confused the jury in light of the plaintiffs’ experts’ testimony, and, in correlation, urge the Court to formally adopt the loss of chance doctrine.  Additionally, the plaintiffs argue that the trial justice erred by including an intervening cause charge in her charge to the jury. 

The Court indicated that it may revisit of the loss of chance defense under appropriate circumstances, but held that the facts present here cannot be reconciled with the loss of chance doctrine.   Therefore, the Court held that the trial justice did not err by declining to charge the jury on loss of chance, nor did the Court conclude that the instruction on intervening cause constitutes reversible error.    

Raymond F. Pollard v. Eugene Hastings et al, No. 03-169 (December 16, 2003)

This appeal arises from a will contest tried before a jury in which the trial justice granted the defendants’ motion for a new trial.  The plaintiff challenged the will on the grounds that the decedent lacked testamentary capacity.  On appeal, the Supreme Court concluded that the trial justice appropriately performed his function when he weighed the evidence, commented on the credibility of the witnesses, and found that he did not agree with the verdict.  The order is affirmed and the case remanded for a new trial.

James Canavan v. Lovett, Schefrin and Harnett et al, No. 03-644 (December 16, 2004)

The plaintiff instituted a legal malpractice action in the Superior Court against the defendant law firm and several named attorneys after the plaintiff’s liability insurer denied his underinsured motorist liability claim.  The defendants moved for summary judgment on the grounds that the plaintiff’s cause of action was barred by the applicable statute of limitations as set forth by G.L. § 9-1-14.3.  On appeal, the Supreme Court reversed, holding that the evidence, viewed in the light most favorable to the plaintiff, presented a genuine issue of material fact as to whether the plaintiff had sufficient knowledge and awareness of facts from which to suspect, in the exercise of reasonable diligence, that the alleged malpractice had occurred.  Accordingly, the Court concluded as a matter of law that summary disposition was inappropriate and remanded the record to the Superior Court.   

State v. Michael Morris, No. 01-0587 (December 16, 2004)

The defendant, Michael Morris, appeals from a Superior Court order denying his post-trial motion to reduce sentence pursuant to Rule 35 of the Superior Court Rules of Criminal Procedure.  Morris previously had been convicted and sentenced to an aggregate fifty-year sentence for his part in a brutal home invasion in Cranston, during which he cut the homeowner on the face.  Because Morris did not meet his burden of proving that the sentence was without justification and grossly disparate from other sentences generally imposed for similar offenses, the Court affirmed.

Weaver v. American Power Conversion Corp. No: 2004-44-Appeal (December 15, 2004)

The plaintiff, a former employee of the defendant corporation, alleged that the defendant breached a contractual obligation to award him a specified number of stock options after he began working for the corporation.  The Superior Court granted summary judgment in favor of the defendant.  On appeal, the Supreme Court affirmed, holding that a reasonable jury could find only that the original obligation between the parties was extinguished by a second stock option agreement that was intended by both parties to act as a replacement for the first.  The plaintiff failed to present any evidence that he at any time outwardly manifested a contrary intent to the defendant corporation.  Accordingly, the Court concluded as a matter of law that summary disposition was appropriate.

Joseph Soave et al v. National Velour Corporation et al, No. 03-557 (December 14, 2004)

The plaintiff sued the defendant, a building contractor, for injuries sustained after the plaintiff fell from a retaining wall.  The plaintiff alleged that the defendant’s negligence in failing to install a guardrail on the wall proximately caused the injury.  The Superior Court granted the defendant’s motion for summary judgment.  On appeal, the Supreme Court affirmed, holding that a building contractor who follows plans and specifications provided by an owner, architect, or engineer, who builds in reliance on a validly issued building permit, and who relinquishes control of the finished work product has no duty to third parties injured as a result of a deficiency in those plans, unless the defect is so obviously dangerous that no competent contractor would build in compliance with the specifications.  The plaintiff failed to establish any genuine issue of fact as to the obvious dangerousness of the plans.  Accordingly, the Court concluded as a matter of law that the defendant owed no duty of care to the plaintiff.

State v. Anthony F. DelBonis, No. 03-511 (December 14, 2004)

The defendant, Anthony F. DelBonis, appeals from a Superior Court judgment of conviction for one count of driving under the influence of liquor or drugs (DUI) in violation of G.L. 1956 § 31-27‑2, as amended by P.L. 2000, ch. 264, § 1.  On appeal, the defendant argued that the trial court erred when it denied his motion to dismiss for lack of subject-matter jurisdiction because the statute does not provide for misdemeanor offenses when there is no evidence of the offender’s blood alcohol content (BAC), and therefore, these offenses must be considered civil violations subject to the jurisdiction of the Traffic Tribunal pursuant to § 31‑27‑2(h).  The Supreme Court determined that, when properly alleged in a criminal complaint, the District Court is vested with original jurisdiction over misdemeanor violations of § 31-27-2, and the Superior Court has jurisdiction over misdemeanor appeals from the District Court.  However, under the rules of statutory construction governing penal statutes, an essential element of a misdemeanor DUI prosecuted under § 31-27-2 was that the defendant’s BAC was .1 percent or greater.  The Court also held that the trial court has no authority to insert a criminal penalty in an enactment of the Legislature.  The judgment is vacated, and remanded with directions to enter a judgment of acquittal.  

 

Richard J. Casey v. Town of Portsmouth et al, No. 04-124 (December 13, 2004)

The plaintiff, Richard J. Casey (plaintiff), brought suit against the defendants, Town of Portsmouth (town) and Donna A. Barker, individually and in her capacity as town personnel director (collectively defendants), alleging that the defendants discriminated against him based on his age by twice failing to hire him for the position of utilityman in 1998.  The hearing justice granted the defendant’s motion for summary judgment.

The Supreme Court affirmed the ruling of the motion justice and held that the facts did not support an inference of age discrimination because the plaintiff failed to offer proof that the legitimate, nondiscriminatory reason that the defendants gave for not hiring him was pretextual.

Nellie S. Francis v. American Bankers Life Assurance Company of Florida, No. 03-599 (December 13, 2004)

The Supreme Court affirmed, concluding that the plaintiff failed to introduce sufficient proof to sustain her allegations.  The Court also held that the plaintiff had neither met the procedural requirements, nor even attempted to introduce medical records, under G.L. 1956 § 9‑19‑27.

In addition, as the trial justice correctly stated, the plaintiff failed to put forth any evidence showing that she sustained damages as a result of the defendant’s alleged actions.

Consequently, after looking at the evidence presented in the light most favorable to the plaintiff and drawing all reasonable inferences in her favor, there remain no factual issues in dispute that reasonable people could disagree about.  Therefore, the trial justice correctly granted judgment as a matter of law in favor of the defendant.

State v. Curley Snell, No. 01-621 (December 13, 2004)

The Supreme Court affirmed a hearing justice’s decision to revoke the defendant’s probation.  On appeal, the defendant argued that his right to confront and cross-examine the state’s witness was violated and his right to present his own evidence and testimony was violated.   This Court held that defendant actually was permitted to cross-examine the state’s only witness at length, and the hearing justice was within his discretion when he sustained the state’s objection to the phrasing of the defendant’s questions.  In addition, although noting that the hearing justice did short-circuit the hearing, this Court held that the defendant’s failure to request to address the hearing justice precluded him from appealing on those grounds

Frenchtown Five L.L.C. v. Carmela Vanikiotis, alias Jane Doe, No. 04-30 (December 9, 2004)

            The defendant appeals from the granting of a preliminary injunction by the Superior Court.  The plaintiff corporation and its predecessors-in-title historically have benefited from a right-of-way across the defendant’s property.  When the defendant frustrated access to the right-of-way, the plaintiff sought judicial intervention, and the Superior Court, applying a four-part test, granted a preliminary injunction to prevent the defendant from blocking the plaintiff’s access to the right-of-way.  The Supreme Court held that trial justice did not abuse his discretion in granting the preliminary injunction, and that he properly found that (1) the plaintiff established a likelihood of success on the merits, (2) the plaintiff would suffer irreparable harm without the requested injunctive relief, (3) a balancing of the equities weighed in favor of the plaintiff, and (4) issuance of the preliminary injunctive served to preserve the status quo.  Therefore, the Court affirmed the Superior Court order and denied the defendant’s appeal.  

Luanne Powers, Individually and as Guardian and Next Friend of the minor Plaintiffs, James Powers and Amanda Powers v. Joseph A. Coccia, No. 04-91 (December 9, 2004)

The plaintiffs appeal from a Superior Court judgment denying their motion for a new trial.  One year after complaining to the defendant landlord about birds flying close to their windows, the tenant plaintiffs discovered bird mites in their apartment.  The plaintiffs initially contacted a pest control company themselves, but from that point on, the defendant made arrangements with the exterminators and contractors needed to combat the mite infestation.  After vacating the apartment, the plaintiffs sued the defendant, in separate actions, for a return of the security deposit and for negligence. 

A jury found for the defendant in the negligence suit, after which the Superior Court denied the plaintiffs’ subsequent motion for a new trial.  On appeal, the plaintiffs argued that the trial justice erred when she denied the plaintiffs’ motion to introduce as non-hearsay an affidavit filed by the defendant in the security deposit action that contains statements and invoices made by the exterminators and contractors.  The Court held that because defendant’s affidavit neither falls under Rule 801(d)(2)(B) as an adoptive admission nor constitutes a statement made by a party’s agent under Rule 801(d)(2)(D) of the Rhode Island Rules of Evidence, it was properly excluded as hearsay.  Therefore, the Court denied the plaintiffs’ appeal. 

Michael J. McEntee et al v. C. Noah Davis et al, No. 03-522 (December 9, 2004)

The trial justice correctly granted the plaintiffs’ petition to enforce a consent judgment pursuant to Rule 70 of the Superior Court Rules of Civil Procedure.   The parties, neighboring landowners in the Town of South Kingstown, disagreed about the validity of the consent judgment conveying a driveway located on the defendant’s property to the plaintiffs.  The defendants argued that the consent judgment should be rescinded or nullified based on mutual mistake.  The trial justice rightly held that a unilateral, and not mutual, mistake occurred when the defendant installed the driveway based on erroneous data supplied by his own surveyor, resulting in the conveyance to the plaintiffs of more land than the defendant had intended to convey.  This Court applied a deferential standard of review and determined that the trial justice’s findings of fact were not clearly erroneous.  The trial justice did not overlook or misconceive material evidence, and the decision did not fail to do substantial justice between the parties. 

 Michael J. Andrade et al v. David B. Perry et al, No. 03-432 (December 8, 2004)

Consistent with its previous holdings, the Court concluded that prejudgment interest should be added against municipal employees, but a specific designation of individual capacity is not a prerequisite for recovery.  After an automobile accident between the plaintiff and an on-duty South Kingstown police officer, the plaintiff sued both the officer and the town.  A jury returned a verdict against both the defendants, and prejudgment interest was later added to the judgment against the officer.  The defendant officer appealed, arguing that prejudgment interest should not apply to a judgment against a police officer acting within the scope of his official duties, and that the plaintiff’s complaint was insufficient to give the officer notice that he was being sued in his individual capacity.  The Court declined to overrule clearly established law providing for prejudgment interest against public employees.  Likewise, the Court refused to read into the recent decision in Feeney v. Napolitano, 825 A.2d 1 (R.I. 2003) a requirement that individual capacity specifically must be pled in order to assess prejudgment interest against a public employee. 

Union Station Associates et al v. Thomas Rossi, in his capacity as Tax Assessor for the City of Providence et al, No. 02-454 (December 8, 2004)

The City of Providence imposed an illegal retroactive tax on several landowners in the Capital Center District of the city.  The Superior Court declared the tax illegal and permanently enjoined the city from enforcing the levy.  The plaintiffs thereafter sought a writ of mandamus directing the city to issue clean municipal lien certificates pursuant to the Superior Court order.  The trial justice granted the petition and awarded attorneys’ fees.  On appeal, the Supreme Court concluded that the trial justice’s granting of the plaintiff’s petition for a writ of mandamus was not erroneous.  The defendant was under a defined ministerial obligation to comply with an order of the Superior Court.  The defendant’s appeal of that previous decision did not stay its duty to follow the order.  Furthermore, at no time did the defendant present a justiciable issue of law or fact in defense of the tax scheme.  Accordingly, plaintiff was entitled to attorney’s fees under G.L. 1956 § 44-7-12(b). 

State of Rhode Island v. Rhode Island Alliance of Social Service Employees, Local 580, No. 03-600 (December 1, 2004)

The Supreme Court held that the Superior Court properly affirmed an arbitrator’s award.  The defendant labor union sought redress from the state after a member of the union had her car stolen from the parking lot at the Department of Health and Human Services, where she worked.  The arbitrator interpreted the collective bargaining agreement (CBA) broadly and concluded that the state failed to take "prompt appropriate" action to correct the unsafe parking lot after it had been notified of the "unsafe conditions."  Because the arbitrator did not exceed his powers and the award "drew its essence" from the CBA, the Supreme Court was required to defer to the arbitrator’s award.

Sengchanh Amphavannasouk v. Dawn Simoneau, No. 03-472 (December 1, 2004)

The plaintiff, Sengchanh Amphavannasouk, brought suit against the defendant, Dawn Simoneau, after an automobile accident in Providence.  A unanimous jury returned a verdict for the defendant.  The plaintiff made a motion for a new trial, asserting that the verdict had been tainted by the introduction of extraneous information to the jury by one of the jurors.  The trial justice heard testimony from the jury foreperson and, based on this testimony, the trial justice denied the plaintiff’s motion.

The Supreme Court affirmed the denial of the plaintiff’s motion for a new trial.  The testimony of the jury foreperson supported a conclusion that any extraneous information brought into deliberations probably would not affect a reasonable average juror.

State v. Thomas Martini, No. 03-0387 (November 26, 2004)

The state appeals from the dismissal by the Superior Court of a Criminal Information filed against the defendant, Thomas Martini.  The state argued that a disorderly conduct conviction under G.L. 1956 § 11‑45‑1 against a family or household member is a crime of domestic violence and is subject to the sentencing enhancements provided in G.L. 1956 § 12‑29‑5(c).  However, pursuant to the provisions of § 11‑1‑2, the penalty provisions set forth in § 11‑45‑1 classify disorderly conduct as a petty misdemeanor.  The sentencing enhancement provisions of § 12‑29‑5(c) are limited to persons "convicted of an offense punishable as a misdemeanor."  Accordingly, by its terms, § 12‑29‑5(c) excludes from its provisions offenses that are not punishable as a misdemeanor.  The judgment is affirmed.

Town of Cumberland v. Rhode Island Interlocal Risk Management Trust, Inc. et al, No. 02-0002 (November 24, 2004)

This is an appeal from a grant of summary judgment in favor of the Town of Cumberland seeking indemnification from the defendant-insurers, which issued insurance policies for losses, in connection with a settlement the town paid in an underlying suit.  The Supreme Court previously had concluded that plaintiff was liable for damages in the underlying suit for violating the substantive and procedural due process rights of the claimants by wrongful interference with their subdivision plans. On appeal, the defendants jointly assigned three errors:  (1) that the general liability policy provides coverage for personal injuries that are intended or expected; (2) that Rhode Island public policy does not prohibit the payment of insurance benefits for damages intentionally caused by the insured; and (3) that the town’s claim was not barred by the exclusion for claims "in any way connected with * * * condemnation" of property.  In addition, one of the named defendants asserted the applicability of exclusionary language in its excess liability policy.

          The Supreme Court affirmed the judgment, agreeing with the motion justice’s findings that:  (1) the insurance policy provides coverage because the contract language purporting to exclude intended and expected injuries is in conflict with the enumerated intentional torts that were covered, including civil rights violations; (2) Rhode Island public policy does not bar an insured from indemnification for intentional torts when the insurance policy explicitly provides such coverage; and (3) the inverse condemnation exclusion does not apply because the settlement did not arise from an eminent domain proceeding or a regulatory taking.  In addition, the Court concluded that the separate claims of the excess liability insurance provider were without merit.

Gbenga Lajayi v. Adebo Fafiyebi et al, No. 03-618 (November 17, 2004)

The defendant, Adebo Fafiyebi, appealed from a judgment granting specific performance of a purchase and sales agreement in favor of the plaintiff, Gbenga Lajayi.  After a jury-waived trial, the trial justice, ruling that the lack of a "time is of the essence" clause in the agreement required the plaintiff only to consummate the transaction within a reasonable period, ordered specific performance.  The defendant contends that the trial justice erred in granting specific performance because the plaintiff failed to comply with certain conditions delineated in the purchase and sales agreement.  The defendant also contends that the trial justice erred in finding that the mortgage contingency clause was for the benefit of the plaintiff, and that the plaintiff properly waived the conditions contained in the mortgage contingency clause.

On appeal, the Supreme Court concluded that the trial justice erred in finding that the mortgage contingency clause was for the benefit of the plaintiff.  However, the Court held that the mortgage contingency clause was for the mutual benefit of the parties and that, based on the findings of the trial justice, both parties had waived the clause.  The Court agreed with the trial justice’s finding that the lack of a "time is of the essence" clause in the agreement required the plaintiff only to consummate the transaction within a reasonable period.   The Court concluded that the trial justice in this case had before him ample evidence to support his finding that plaintiff acted with due diligence in obtaining alternate financing and attempting to effectuate the closing on the properties.  Thus, the Court upheld the judgment granting specific performance.

Carmen P. Boscia v. Jami C. Sharples et al, No. 03-270 (November 12, 2004)

This is an appeal from a denial of plaintiff’s motion for an additur or a new trial in a personal injury action tried before a jury.  The plaintiff assigned three errors to the rulings of the trial justice: the exclusion of crash scene photographs; the introduction of unauthenticated medical records; and the denial of plaintiff’s motion for an additur or a new trial.

On appeal, the Supreme Court vacated the judgment, concluding that the trial justice committed reversible error by excluding relevant photographs and allowing into evidence unauthenticated medical records.  The Court held that the cumulative effect of these errors so prejudiced the plaintiff’s case as to work an injustice upon him.  The judgment is vacated and the case remanded for a new trial.

Paul J. Andrukiewicz v. Georgia D. Andrukiewicz, No. 02-395 (November 12, 2004)

In post-judgment divorce proceedings, the defendant/wife, Georgia Andrukiewicz, sought enforcement of the terms of the parties’ property settlement agreement.  The Family Court found that the language of the agreement entitles the wife to receive her share of the value of the plaintiff/husband’s pension benefits as of his "normal retirement date," which was declared to be the date that he becomes eligible to retire.  On appeal, the husband acknowledged that the agreement provides that the wife will received $583 each month as of his "normal retirement date," but argued that this language is ambiguous and must refer to the date he actually retires to avoid an inequitable and unconscionable result.  The Supreme Court rejected his argument and deemed the language of the agreement to be clear and unambiguous.  The Court said that under its plain and ordinary meaning, the husband’s "normal retirement date" is when he is eligible to retire under his pension plan.  Further, the Court declined to reach the defense of laches because the husband had not properly preserved it for appellate review.  The judgment is affirmed. 

  
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