Constance Fravala a/k/a Constance Fravala Phillips v. City of Cranston, by and through its Director of Finance Jerome I. Baron, No. 09-197, 09-225 (June 24, 2010)

The City of Cranston appealed from a Superior Court judgment declaring Constance Fravala the common-law wife of Wilbur Phillips at the time of his death and granting Ms. Fravala past and present monthly widow’s pension benefits.  Ms. Fravala appealed from the same judgment, which also denied her request for prejudgment interest.

The city first argued on appeal that the trial justice erred in denying its motion in limine to exclude evidence of Ms. Fravala and Mr. Phillips’s relationship prior to the death of Lillian Cantone, to whom Mr. Phillips legally was married, because as a matter of law Ms. Fravala and Mr. Phillips could not have been married under the common law before her death.  The Supreme Court held that the trial justice did not abuse her discretion in ruling that evidence predating Ms. Cantone’s death was relevant to the intent of Mr. Phillips and Ms. Fravala to enter into a husband-wife relationship. 

Second, the city argued that the trial justice erred in allowing the introduction of five envelopes addressed to variations of " Mrs. Constance Phillips" and an affidavit, because they constituted inadmissible hearsay.  The Court concluded that the trial justice did not err in admitting the envelopes or the affidavit because they were not hearsay, but rather were offered to prove the community’s perception of Mr. Phillips and Ms. Fravala’s relationship.

Third, the city argued that the trial justice misconstrued the evidence in concluding that a common-law marriage existed between Ms. Fravala and Mr. Phillips at the time of his death.  The Court held, after carefully reviewing the record, that the trial justice did not overlook or misconceive material evidence or otherwise commit clear error. 

In her cross-appeal, Ms. Fravala contended that the trial justice erred in concluding that Ms. Fravala was not entitled to prejudgment interest under G.L. 1956 § 9-21-10(a).  The Court affirmed, holding that Ms. Fravala was not entitled to prejudgment interest under the statute because she requested relief in the form of a declaratory judgment.  The Court concluded that the determination of benefits, by way of a declaratory judgment, was not an award of damages, and therefore was not appropriate for prejudgment interest.

Rhode Island Managed Eye Care v. Blue Cross and Blue Shield, No. 08-216, 08-217 (June 24, 2010)

This case involved a breach-of-contract claim by the plaintiff, Rhode Island Managed Eye Care, Inc. (RIMEC), against the defendant, Blue Cross & Blue Shield of Rhode Island (Blue Cross).  RIMEC primarily alleged that it did not receive payment for all the Blue Cross members for whom it provided services under a contract between the parties.  A jury rendered a verdict in favor of the plaintiff, but the trial justice granted the defendant a new trial on the issue of lost profits.  The plaintiff appealed this decision, and the defendant cross-appealed, challenging the admittance of certain business records into evidence at trial.  

In order to execute the contract, RIMEC developed original software.  Using that software, RIMEC generated the records at issue.  Blue Cross alleged that circumstantial evidence cast doubt on the documents’ trustworthiness, and that therefore the documents were not admissible under Rule 803(6) of the Rhode Island Rules of Evidence as business records.  The Court concluded, however, that the trial justice did not abuse his discretion in admitting the documents into evidence.  The Court also rejected Blue Cross’s argument that the documents were not properly authenticated under Rule 901 of the Rhode Island Rules of Evidence.

RIMEC argued that the trial justice erred in granting a new trial on the issue of lost profits because the jury’s award was not against the weight of the evidence.  Blue Cross exposed a mathematical error, however, in the analysis of the witness who testified about RIMEC’s lost profits.  RIMEC argued that the jury was entitled to base its verdict on that witness’s calculation, notwithstanding the error.  The Court was satisfied that the trial justice did not overlook or misconceive the evidence in determining the lost-profits award was against the weight of the evidence and that he was not otherwise clearly wrong. 

The Court affirmed the judgment of the Superior Court.

State v. Gabriel Moreno, No. 08-161 (June 23, 2010)

The defendant, Gabriel Moreno, appeals from his conviction by a Providence County Superior Court jury of kidnapping, felony assault, two counts of simple assault, and interference with the use of a telephone in an emergency.  The issues that the defendant raised on appeal all center around the exclusion by the trial justice of certain testimony by a defense witness.  The defendant contended that the trial justice erred in excluding testimony with respect to the complaining witness’s reputation for untruthfulness as well as other testimony that the defendant contended would have impeached the complaining witness’s testimony.

The Supreme Court held that, without deciding whether or not the trial justice abused his discretion in excluding the witness’s reputational testimony, any such error would have been harmless beyond a reasonable doubt since the jury had already heard an abundance of testimony to the effect that the complaining witness was untruthful.  The Court affirmed the exclusion of other proffered impeachment testimony, holding that the trial justice did not abuse his discretion in ruling that the testimony’s probative value was outweighed by the potential that it would confuse or mislead the jury.  The defendant also raised a third issue on appeal; however, the Court held that the issue had not been properly preserved at trial and so was deemed to have been waived.

Efrain Otero v. State of Rhode Island, No. 08-330 (June 23, 2010)

The applicant, Efrain Otero, appealed from a Superior Court judgment denying his application for postconviction relief.  At his first hearing on the application, his appointed counsel withdrew from representation and filed a " no-merit" memorandum in accordance with the requirements set forth in Shatney v. State, 755 A.2d 130 (R.I. 2000).  The hearing justice preserved one argument for further proceedings and dismissed the other claims as groundless.  At his second hearing, the applicant was represented by a private attorney, and the trial justice dismissed the only remaining claim.   

On appeal, the applicant argued that the hearing justice improperly allowed his appointed counsel to withdraw his postconviction-relief claims as he concurrently sought to withdraw as counsel.  He further argued that the hearing justice should have advised him at the hearings that he could proceed pro se.  The Supreme Court noted that the applicant’s first argument was fatally flawed because his appointed counsel did not, in fact, withdraw his postconviction-relief claims.  Further, the Court held that the first hearing was not procedurally deficient because the applicant had the opportunity to be heard on his application and the hearing justice " essentially followed" the Shatney procedures.  The Court did not mandate an affirmative obligation on the part of a hearing justice to intervene in a postconviction-relief proceeding to advise an applicant of his or her right to proceed pro se when his or her attorney appears to be unprepared.         The applicant also argued that he received ineffective assistance of counsel at his trial and that the trial justice improperly instructed the jury on the elements of second-degree murder.  The Court concluded that the applicant’s ineffective assistance of counsel claim was without merit.  Moreover, the Court held that the applicant’s improper jury instruction claim was barred by the doctrine of res judicata, and thus was not properly before the Court.

State v. Edward Peoples, No. 09-13 (June 21,2010)

The defendant, Edward Peoples (Peoples or defendant), appealed from multiple convictions of child molestation.  On appeal, Peoples contends that the trial justice erred by improperly limiting his cross-examination of a witness and in denying his motion for a new trial.

The Supreme Court upheld his convictions.  The trial justice did not abuse his discretion by limiting the cross-examination of the witness when defense counsel began to inquire about a third-party perpetrator defense.  After a careful review of the record in this case, the Court was satisfied that the trial justice appropriately precluded defense counsel from engaging in this line of questioning because there was not an offer of proof establishing a third-party perpetrator.

Additionally, the trial justice was not clearly wrong by denying the defendant’s motion for a new trial.  After close review of the record from the hearing for the motion for a new trial, the Court was satisfied that the trial justice did not err in reaching this conclusion.  The trial justice undertook a deliberate, careful and thorough review of the evidence before him and his decision is entitled to great weight.  Further, there was nothing in the record that any evidence was overlooked or misconceived by the trial justice. 

State v. Wilder E. Flores, No. 08-281 (June 21, 2010)

The state of Rhode Island appealed from a Superior Court order granting the defendant Wilder E. Flores’ motion to suppress evidence gathered as result of his arrest after a traffic stop.  The state contended that the trial justice erred in ruling that the police officer’s plain view of two large clear plastic bags containing white powder was sufficient to constitute probable cause to arrest.  The Supreme Court agreed.  On a de novo review of the existence of probable cause, the Court determined that under the totality of the circumstances, including the officers’ training and experience, the area in which the traffic stop occurred, and the immediately apparent nature of the contraband, the officer did have probable cause at the time he arrested Flores.  Accordingly, it reversed the Superior Court order.

In re Kent County Water Authority Change: Rate Schedule, No. 09-41 (June 17, 2010)

This case is before the Supreme Court as a statutory petition for certiorari filed by the Kent County Water Authority (KCWA or petitioner), pursuant to G.L. 1956 § 39-5-1.  The petitioner sought review of the Rhode Island Public Utilities Commission’s (PUC) decision, in Docket No. 3942, denying a rate increase to KCWA for several discrete expenses: a salary increase that was less than requested, full funding for its infrastructure replacement program (IFR) and its determination that KCWA employees should pay a portion of their health-insurance expenses.  The City of Warwick intervened before the PUC and is a party to this appeal. 

The petitioner argued that it was error for the PUC to reject its request for full funding of the IFR as approved by the Department of Health based on the statutorily required Clean Water Infrastructure replacement program.  KCWA averred that in limiting its funding for this program, the PUC ignored the Comprehensive Clean Water Infrastructure Act of 1993, as set forth in G.L. 1956 § 46-15.6-2.  The petitioner next asserted that the PUC erred when it denied its requested salary increase for KCWA employees, alleging that the increase was necessary to maintain and attract a qualified workforce.  Finally, the petitioner contended that PUC erred in ordering KCWA employees to contribute 10 percent for their health-care premiums and that this decision was not supported by legally competent evidence. 

The Supreme Court affirmed the report and order of the PUC.  Concerning the IFR funding, the Court deemed that G.L. 1956 § 39-1-1(c) and § 46-15.6-2 were not in conflict and indeed, can be read harmoniously as consistent with the Legislature’s design that the PUC perform its statutory authority to review rate cases and protect the public from unreasonable charges.  The Court also held that the salary amount for the KCWA employees was reasonable and supported by substantial evidence.  Finally, the Court held that the PUC’s decision regarding the health-insurance expense was supported by substantial evidence, including the fact that most other water utilities require their employees to contribute toward their health insurance and that nothing in G.L. 1956 § 39-16-5 would divest the PUC of its statutory authority to determine what rates are just and reasonable.

State v. Tonya Fuller-Balletta, No. 08-96 (June 17, 2010)

The acquittee, Tonya Fuller-Balletta (Fuller-Balletta or acquittee), appeals from an order of the Superior Court that recommitted her to the custody of the Rhode Island Department of Mental Health, Retardation and Hospitals (MHRH) pursuant to G.L. 1956 § 40.1-5.3-4(e) for care and treatment at an inpatient facility, after Fuller-Balletta was acquitted for the murder of her daughter.  On appeal, the acquittee argues that: (1) the evidence presented at the hearing legally was insufficient to meet the statutorily required showing of a likelihood of serious harm to support the trial justice’s finding that the acquittee is dangerous; (2) the trial justice erred when she failed to consider the precise circumstances of the acquittee’s conduct that gave rise to the insanity acquittal; and (3) the trial justice should have ordered the acquittee into a community-based outpatient facility instead of inpatient treatment at a public institution.

The Court held that the evidence presented to the trial justice met the state’s agreed-upon burden of clear and convincing evidence that Fuller-Balletta’s unsupervised release would create a likelihood of serious harm, as required by § 40.1-5.3-4(c). The acquittee did not produce any evidence to dispute these findings. 

The Court further declared that the trial justice did not err when she failed to consider the precise circumstances giving rise to the homicide in this case and did not take into account Fuller-Balletta’s " lack of intentionality and malice."   The motivation underlying Fuller-Balletta’s psychotic delusions was not relevant to the question of dangerousness.

Finally, the Court ruled that the trial justice did not err by refusing to order MHRH to place Fuller-Balletta in a community-based outpatient setting.  The statute pertaining to the initial commitment hearing does not, in any way, grant the trial justice the authority to order such a placement.

State v. Jose A. Rodriguez, No. 08-321 (June 17, 2010)

Jose A. Rodriguez (Rodriguez) appealed from a Superior Court judgment of conviction for possession of heroin with intent to deliver, possession of cocaine with intent to deliver, and possession of a knife while committing a crime of violence.  Rodriguez’s convictions arose from a July 13, 2006, incident in which the defendant was discovered with another man in a parked car possessing individually packaged bags of cocaine and heroin.  The defendant contended that the trial justice erred in denying the defendant’s motion for judgment of acquittal because there was insufficient evidence to support the two counts charging possession of cocaine and heroin with intent to deliver.  He also argued that failure to prove that he possessed either heroin or cocaine with an intent to deliver would necessarily require acquittal on the charge of possession of a knife while committing a crime of violence.  Rodriguez further argued that a witness testifying against him should not have been permitted to disclose their previous drug transactions.  Finally, Rodriguez argued his motion for a new trial erroneously was denied and reiterated the same arguments he made in favor of a judgment of acquittal.

The Court held that there was sufficient evidence of Rodriguez’s intent to deliver cocaine and heroin to support a jury finding of guilt beyond a reasonable doubt.   It also held that Rule 404(b) of the Rhode Island Rules of Evidence did not require that evidence of the defendant’s previous drug transactions with a witness be suppressed because it was probative of Rodriguez’s intent when he agreed to meet the witness on July 13, 2006.  Finally, the Court held that, although its standard of review for a denial of a motion for new trial was different from a denial of a motion for judgment of acquittal, the Court was satisfied that the trial justice did not err in denying the defendant’s motion.  Accordingly, it affirmed the judgment of the Superior Court.

Michael Downey et al v. Donald L. Carcieri et al., No. 09-79 (June 16, 2010)

The defendants, Governor Donald L. Carcieri and the directors of twelve state agencies, appeal from a judgment entered in favor of the plaintiffs, Rhode Island Council 94, A.F.S.C.M.E., AFL-CIO and its executive director.  The plaintiffs brought this action under the Access to Public Records Act, G.L. 1956 chapter 2 of title 38 (APRA), and the Governmental Oversight and Fiscal Accountability Review Act, G.L. 1956 chapter 2.3 of title 37 (GOFARA), pursuant to which the plaintiffs sought records relating to state agency privatization contracts.  The defendants contend that the trial justice erred in ruling that the plaintiffs were not required to exhaust administrative remedies before instituting this suit in the Superior Court.  The defendants also assert that the trial justice erred in deciding that, under the GOFARA, the state was required to determine whether services now performed by private entities on behalf of state agencies formerly were performed by agency personnel at any time in the past.  Finally, the defendants contend that the trial justice erred in awarding attorneys’ fees to the plaintiffs.

Turning to the language of § 38-2-8, it was clear that the section set forth various administrative remedies without requiring that they be pursued prior to bringing an action in the Superior Court.  The Court found such a reading to be consistent not only with the use of the word " may" in the section, but also with the final sentence of § 38-2-8(b), which explicitly provides that " [n]othing within this section [§ 38-2-8] shall prohibit any individual or entity from retaining private counsel for the purpose of instituting proceedings for injunctive or declaratory relief in the [S]uperior [C]ourt * * *."   It is clear from the foregoing that the General Assembly manifestly intended requestors to have recourse to the Superior Court, even without prior exhaustion of alternative, administrative remedies.

The Court then addressed the issue of the scope of the duty imposed on the defendants under the GOFARA.  Upon consideration of the meaning of the term " services heretofore provided" as used in the GOFARA, the Court concluded that the phrase encompassed all services performed at any time in the past by regular employees of a state agency.  The Court also found no error in the Superior Court’s award of damages to the plaintiffs.  The judgment of the Superior Court therefore was affirmed.

State v. Justin Prout, No. 06-203 (June 16, 2010)

Following a jury trial, the defendant was convicted of unlawful breaking and entering of a dwelling house, assault with a dangerous weapon, and simple assault.  The defendant appealed, arguing that the trial justice erred in denying his motion for a new trial.  The defendant contended that the trial justice misconceived or overlooked material evidence pertaining to (1) the trial witnesses’ credibility; and (2) the defendant’s alleged diminished capacity.

According to the three complaining witnesses, the defendant forced his way into a Providence home and became involved in a violent, unprovoked altercation with two people inside.  He attacked at least one complaining witness with a knife.  He later was arrested and taken to Rhode Island Hospital for treatment of injuries he suffered during the fight.  The defendant was intoxicated when he was admitted to the emergency room.  He also was uncooperative and verbally abusive; as a result the hospital staff placed him in restraints and administered antipsychotic medication in an effort to calm him.

After trial, the trial justice instructed the jury on burglary, the lesser-included offense of breaking and entering, assault with a dangerous weapon, and simple assault.   The trial justice also sua sponte included an instruction about the defendant’s alleged diminished capacity.  The jury acquitted the defendant of burglary, but convicted him of breaking and entering, assault with a dangerous weapon, and simple assault.

The defendant made a motion for a new trial, arguing that the state’s witnesses lacked credibility and, therefore, the jury should have rejected their testimony.  The defendant further argued that he possessed diminished capacity on the night of the incident because of his intoxication and mental illness and, therefore, he could not form the intent required to commit the crimes of which he was accused.  The trial justice denied defendant’s motion, finding the witnesses credible and the evidence sufficient to sustain the convictions.  The trial justice also noted that the defendant had a high level of alcohol in his system and was in an uncontrollable state on the night of the incident, but concluded that that fact alone did not justify the grant of a new trial.  The defendant appealed the trial justice’s decision.    

After a careful review of the trial justice’s ruling, the Court was satisfied that he performed the correct analysis in deciding the defendant’s motion for a new trial.  The trial justice adequately articulated his reasons for denying the defendant’s motion.  He thoroughly summarized the evidence presented at trial and found that there was no question that the three principals presented by the state were credible witnesses.  Moreover, the trial justice found that the state produced sufficient evidence to sustain all three convictions.

Furthermore, the trial justice did not overlook or misconceive evidence concerning the defendant’s diminished capacity when deciding the motion for a new trial.  In Rhode Island, the doctrine of diminished capacity applies only to crimes of specific intent.  The defendant was acquitted of burglary, the only specific-intent crime with which he was charged.  His arguments were inapplicable to the remainder of the crimes of which he stood convicted.  For these reasons, the Supreme Court affirmed the decision of the Superior Court.

State v. Joseph Santos, No. 08-99 (June 16, 2010)

The defendant, Joseph Santos, appealed from his conviction on two criminal counts arising out of his involvement in a motorcycle accident.  The defendant was sentenced to fifteen years, thirteen years to serve, on one count of driving under the influence, death resulting, in violation of G.L. 1956 § 31-27-2.2, and ten years, two years to serve, on a second count of driving so as to endanger, death resulting, in violation of § 31-27-1.  On appeal, the defendant contended that the trial justice erred in denying the defendant’s motion to suppress his blood-alcohol-level-test results.

The defendant argued that the trial justice erred in denying his motion to suppress the results of the blood-alcohol-level test performed at Rhode Island Hospital incident to his treatment after the accident.  Under G.L. 1956 § 5-37.3-6.1 a patient must be afforded notice and an opportunity to be heard before process may issue for any confidential health care information.  The Court was convinced that both requirements were satisfied in the case.  The defendant was afforded a hearing on his motion to quash a state subpoena served on the hospital, and he conceded that the satisfaction of the mandatory twenty-day-notice period was not at issue following a continuance on his motion to quash the subpoena.

After the continuance, the defendant attacked the subpoena on the grounds that it was not properly supported by an affidavit demonstrating probable cause.  The trial justice ultimately ruled that an affidavit was not a prerequisite for issuance of the subpoena in light of the statutory language of § 5-37.3-6.1(c).  Moreover, she noted that affidavits and supporting documents would have been superfluous in the instant case given the fact that substantial evidence was presented in the information packet and through testimony at the suppression hearing supporting the issuance of the subpoena.  The Court discerned no abuse of discretion in the trial justice’s ruling.

The defendant further argued that the state was required to prove that he freely and voluntarily consented to the release of his confidential medical records to the Rhode Island State Police and that, in the absence of such a showing, the records should have been suppressed by the trial justice.  The state sought the defendant’s medical records through a subpoena in accordance with the procedure set forth in § 5-37.3-6.1.  The Court found no basis for this argument and therefore affirmed the judgment of the Superior Court.

Philip Poulin v. Custom Craft, Inc., et al, No. 09-160 (June 16, 2010)

The plaintiff appealed from a summary judgment in favor of the defendants, his former corporate employer and its president.  The plaintiff’s complaint alleged unlawful discrimination on the basis of a disability.  Without deciding whether the plaintiff was, in fact, disabled under the law, the trial justice granted the defendants’ motion for summary judgment on the basis that the plaintiff failed to make out a prima facie case that he was terminated because of his alleged disability. 

On appeal, the plaintiff contended that an unresolved issue of material fact precluded summary judgment, and that the hearing justice failed to draw all reasonable inferences in his favor in deciding the motion.  The Supreme Court agreed with the hearing justice, however, that the plaintiff failed to make out a prima facie case that the defendants discharged the plaintiff because of his alleged disability.  Thus, the Court affirmed the judgment of the Superior Court.

Clare A. Parker et al. v. Marsha N. Byrne et al., No. 09-162 (June 16, 2010)

The plaintiffs appealed from the Superior Court’s grant of summary judgment in favor of the defendants.  The plaintiffs had entered into two purchase and sales agreements with the defendants to sell their two properties in North Kingstown.  The agreements were contingent upon each other, contained provisions requiring the plaintiffs to deliver marketable title, and required notice to be in writing.  The defendants then received a town zoning certificate stating that the properties had merged, provided the plaintiffs with oral notice of the issue, and postponed the scheduled closing.  Shortly thereafter, one of the properties was sold at a foreclosure auction.

The plaintiffs argued on appeal that the hearing justice erred in granting summary judgment in favor of the defendants because issues of material fact remained as to who breached the agreements and whether the defendants misrepresented their reason for not performing under the agreement. 

The Supreme Court affirmed the motion justice’s grant of summary judgment.  The Court noted that, although whether a party materially breached a contract is generally a question of fact, the particular sequence of events in the instant case admitted of only one reasonable disposition, and therefore could be decided as a matter of law.  The Court concluded that the plaintiffs breached the agreements by failing to present two marketable titles to the defendants within a reasonable time after the scheduled closing date, thereby excusing the defendants from performance under the agreements.  The Court further held that providing the plaintiffs with oral notice rather than written notice was an immaterial breach on the part of the defendants.  Lastly, the Court affirmed summary judgment in favor of the defendants with respect to the fraud claim because the plaintiffs offered no evidence suggesting that the defendants falsely represented, at the time they entered into the agreements, their desire to purchase the properties.

State v. David Rios, No. 07-131 (June 16, 2010)

The defendant, David Rios, appealed from a judgment of conviction for murder, kidnapping with intent to extort, conspiracy to commit kidnapping, and the commission of a crime of violence with a firearm. The defendant’s only contention on appeal was that the trial justice erred in permitting two witnesses to testify that they observed the defendant in possession of a handgun on several occasions prior to the murder.  He argued that such evidence is inadmissible under Rule 404(b) of the Rhode Island Rules of Evidence.

The Supreme Court disagreed.  It determined that testimony that the defendant had previously brandished a handgun while threatening the victim was relevant to his motive.  Moreover, it held that evidence that the defendant frequently carried a handgun was probative of his opportunity to commit the crime.  Accordingly, it affirmed the judgment of conviction.

State v. Rudy Sifuentes, No. 09-75 (June 10, 2010)

The petitioner, Rudy Sifuentes, having previously been convicted of first-degree murder and sentenced to life imprisonment without the possibility of parole, requested that the Supreme Court (1) undertake an independent review of his sentence of life imprisonment without the possibility of parole and (2) modify his sentence so as to provide for the possibility of parole. 

Although the Court was of the view that Mr. Sifuentes had waived his right to such a review (due to the fact that he did not raise his right to an independent review of his sentence in either of his two prior appeals to this Court or in his more recent application for postconviction relief), the Court nonetheless opted to undertake a review of his sentence of life imprisonment without the possibility of parole.  After having conducted an independent review of his sentence, the Court concluded that the imposition of life imprisonment without the possibility of parole was appropriate.

State v. Akeem King, No. 07-178 (June 10, 2010)

The defendant, Akeem King, appealed from a judgment of conviction for murder in the second degree entered after a jury trial in the Providence County Superior Court.  On appeal, the defendant contended that the trial justice erred in denying his motion to suppress inculpatory statements that he made in a particular interview with the Providence police, which statements he contended were elicited after an unnecessary delay in his presentment before the District Court. 

The Supreme Court held that the trial justice did not err in denying the defendant’s motion to suppress the statements because the record failed to indicate that the delay in presentment caused the defendant to make the further inculpatory statements.  The Court therefore affirmed the judgment of conviction.

Joan Prout v. City of Providence et al., No. 07-215 (June 10, 2010)

The plaintiff, Joan Prout (Prout or plaintiff) appealed from the Superior Court’s entry of summary judgment in favor of the defendant, the City of Providence (city).  On July 11, 2005, Prout filed a notice of claim with the city for injuries that occurred on May 18, 2005, when she stepped onto what she alleged was a " negligently maintained sewer grid."   Thereafter, the plaintiff filed a complaint in the Superior Court seeking damages for her injuries.  Both the notice of claim that she filed with the city and the complaint described the location of the injury as " at or near Glenham Street."   The city moved for summary judgment contenting that the notice of the place of the injury was insufficient as a matter of law pursuant to G.L. 1956 § 45-15-9.  The plaintiff sought to amend her complaint for a more specific description, but the trial justice denied her motion and granted summary judgment in favor of the city.  On appeal, Prout argues that the grant of summary judgment was erroneous because her complaint set forth adequate notice as required by § 45-15-9. 

The Supreme Court upheld the grant of summary judgment.  The plaintiff failed to adequately specify the location of the allegedly defective sewer.  The record indicated that Glenham Street was 1249 feet long and had eighteen sewer grids; Prout’s description of the incident " at or near Glenham Street" was inadequate as a matter of law to provide the city proper notice.  Additionally, § 45-15-9 requires that an injured party file or amend the notice of claim within a sixty-day period.  The plaintiff failed to meet this statutory time-frame when she sought to amend her notice of claim.   

In re Angelina T., No. 09-217 (June 10, 2010)

Jason Tench appealed from a Family Court decree terminating his parental rights to his daughter, Angelina.  The Family Court justice terminated Mr. Tench’s parental rights both on the grounds of " unfitness by reason of conduct or conditions seriously detrimental to the child" and abandonment.  He argued on appeal that the trial justice did not make the necessary findings to support termination of his parental rights and that that record before the Family Court justice did not support by clear and convincing evidence either the justice’s finding of abandonment or his finding of conduct or conditions seriously detrimental to the child.  

The Supreme Court agreed.  It determined that the Family Court justice did not make the findings necessary to support termination on the basis of " unfitness by reason of conduct or conditions seriously detrimental to the child" .  Moreover, it held that evidence submitted by DCYF could not support a finding of unfitness either on the grounds of conduct or conditions seriously detrimental to the child or by reason of abandonment.  Accordingly, it vacated the termination decree.

Evelina Costa et al. v. Carol Ann Silva, No. 09-126 (June 9, 2010)

The defendant, Carol Ann Silva, appealed from a Superior Court judgment declaring that she did not have an easement over her neighbors’ property and enjoining her from trespassing on that property.  On appeal, the defendant contended that the trial justice erred in two primary respects: (1) in declining to rule upon the defendant’s adverse possession claim; and (2) in granting injunctive relief to the plaintiffs.  The Supreme Court affirmed the judgment of the Superior Court, holding (1) that the trial justice properly declined to rule upon the merits of the defendant’s adverse possession claim because the defendant had failed to comply with the statutory requirements that must be satisfied before a party may properly assert a claim of adverse possession; and (2) that, in granting injunctive relief in favor of the plaintiffs, the trial justice did not misapply the law, misconceive or overlook material evidence, or make factual findings that were clearly wrong.

State v. Joseph Medeiros, No. 09-207 (June 7, 2010)

The defendant Joseph Medeiros appealed from a judgment of conviction for two counts of second-degree child molestation, one count of first-degree sexual assault, and one count of second-degree sexual assault.  On appeal, he argued that the trial justice erred when she permitted the state to present the witness statement of a prior molestation victim of the defendant under Rule 404(b) of the Rhode Island Rules of Evidence.  The defendant maintained that the witness statement of his previous victim pertained to incidents that were " not sufficiently relevant" to any of the " other purposes" for which evidence of other crimes is admissible under Rule 404(b), that were " insufficiently similar" to the charges in this case, that were " too remote," and that were unnecessary to the state’s case while at the same time " highly prejudicial" to him.  Additionally, the defendant argued that the trial justice abused her discretion when she adjudicated him guilty and when she denied his motion for a new trial.

The Supreme Court held that it could not consider the defendant’s argument that the trial justice abused her discretion when she admitted the evidence of the defendant’s prior sexual misconduct because the trial justice’s rationale for her ruling was absent from the record.  The Court reasoned that it was the defendant’s responsibility to request that the trial justice place the rationale for her reasoning on the record but did not do so.  However, the Court opined that even if properly preserved, the argument lacked merit.    

The Supreme Court next considered the defendant’s argument that the trial justice clearly was wrong when she adjudicated the defendant guilty and denied his motion for a new trial.  In light of the trial justice’s specific assurances that she reviewed all the evidence, and in consideration of her finding that the complainant’s testimony was credible, the Court held that the trial justice did not overlook or misconceive the material evidence nor was she otherwise clearly wrong.  Accordingly, the Court affirmed the judgment of conviction. 

Leo Connor et al. v. Mary Schlemmer et al., No. 08-168 In re Estate of Kathleen T. Connor, No. 08-183 (June 7, 2010)

This consolidated appeal involved two cases concerning the estate of the late Kathleen T. Connor.  The first case was a declaratory-judgment action in which the plaintiffs (1) challenged a 2001 deed executed by Ms. Connor and a 2002 power of attorney she executed in favor of one of the defendants, and (2) requested the imposition of a constructive trust on Ms. Connor’s former residence.  The plaintiffs appealed from a judgment in favor of the defendants dismissing their action on the merits.

The second case was a Probate Court appeal by the plaintiffs challenging the admission to probate of Ms. Connor’s 2002 will.  A jury returned a verdict finding that Ms. Connor lacked sufficient mind and memory necessary to execute a will in 2002.  The trial justice, however, granted the estate’s motion for a new trial.  The plaintiffs appealed the consolidated cases, and the Court affirmed the judgment and order of the Superior Court.

The plaintiffs contended that the trial justice failed to address their theory of constructive trust in the deed case.  Upon review of the trial justice’s decision in the deed case and on the defendants’ motion for reconsideration, the Court was satisfied that the trial justice adequately set forth the facts of the case and separately recited the conclusions of law drawn therefrom, including the constructive trust issue. 

The plaintiffs further suggested that the trial justice overlooked and misconceived certain evidence presented at trial concerning Ms. Connor’s competence to execute the 2001 deed.  Specifically, they contended that the trial justice failed to discuss the drafting attorney’s testimony in his bench decision in the declaratory-judgment action and did not adequately consider the alleged shortcomings and inconsistencies in that witness’s testimony. Conversely, the plaintiffs argued that the trial justice assigned improper weight to the testimony of Ms. Connor’s guardian ad litem.  The Court could find no support for the argument that the trial justice’s findings were not amply supported by the material evidence offered at trial.  The trial justice did not misconceive the import of the drafting attorney’s testimony, nor did he consider the guardian ad litem’s testimony for improper purposes.

The Court further concluded that none of the trial justice’s evidentiary rulings during the trial were an abuse of discretion, nor did he incorrectly rely on any of the admitted evidence.  Moreover, the Court concluded that the trial justice did not abuse his discretion in refusing to allow the plaintiffs to present certain rebuttal evidence.

Finally, the Court discerned no error in the trial justice’s decisions on the motions for new trial in both cases.  It concluded that the trial justice conducted a thorough and searching review of the evidence, undertook the proper legal analysis, and reached his decision only after much deliberation and circumspection.  The judgment and order below were therefore affirmed.

Foster Glocester Regional School Building Committee et al v. Steven A. Sette et al, No. 08-162 (June 4, 2010)

The defendants, who were the four members of the Glocester Town Council who voted to remove the plaintiff, Gregory Laramie, from his position on the Foster-Glocester Regional School Building Committee (RBC) by declaring his seat on the RBC vacant, appealed from a Superior Court judgment granting declaratory and injunctive relief in favor of the plaintiffs, the RBC and its eight individual members.  The defendants contended that the Glocester Town Charter expressly empowers the Glocester Town Council with the authority to remove those members of the RBC whom the Glocester Town Council has appointed or to fill vacancies on the RBC when they arise.  Alternatively, the defendants argued that the Glocester Town Council nonetheless possesses this authority by implication because the authority to appoint a member to the RBC necessarily implies the authority to remove him or her.  The Supreme Court affirmed the Superior Court’s judgment in granting declaratory relief.  However, the Supreme Court vacated the preliminary injunction because the Court concluded that the need for the injunction no longer existed.

The Supreme Court first considered the Superior Court’s grant of declaratory relief to the plaintiffs.  The Court recognized that it will not overturn a trial justice’s decision to grant declaratory relief absent a clear abuse of discretion, but the Supreme Court will review questions of law de novo.  The Court determined that the Glocester Town Charter did not empower the Glocester Town Council to remove members of the RBC because although the Glocester Town Charter grants the Glocester Town Council the authority to remove members of the boards, commissions, and committees of the Town of Glocester, the RBC is not a board, commission, or committee of the Town of Glocester. 

Consequently, any authority for the Glocester Town Council to remove members of the RBC, or to declare seats on the RBC vacant and appoint new members, must derive from the legislation that created the Foster-Glocester Regional School District and the RBC, to wit, Public Laws 1958, chapter 109.  Section 4 of Public Laws 1958, chapter 109, authorized the Glocester Town Council to appoint three members to the RBC and to appoint a replacement in the event of a vacancy.  But the Court held that § 4 was silent about whether any member of the RBC can be removed from office.  Also, the statute set a term for the life of the RBC, but did not provide a term for its members.  In the Supreme Court’s judgment, nothing in § 4 authorized the Glocester Town Council to remove RBC members whom they had appointed.

Next, the Supreme Court evaluated, again under a deferential standard of review, whether the trial justice committed error in granting the plaintiffs’ request for a preliminary injunction.  The Court agreed with the hearing justice and held that the town council was without authority to remove Laramie from the RBC.  The Supreme Court, however, vacated the preliminary injunction because, after having declared that the Glocester Town Council did not possess the authority to remove members of the RBC, the need for injunctive relief ceased to exist.

Auto Body Association of Rhode Island v. State of Rhode Island Department of Business Regulation et al., No. 08-224, 08-225 (June 4, 2010)

The petitioners, the Rhode Island Department of Business Regulation (DBR) and the Property and Casualty Insurers Association of America (PCI), filed separate petitions for the issuance of writs of certiorari, seeking review of a Superior Court order which reversed DBR’s interpretation of G.L. 1956 § 27-29-4.4.  The DBR and PCI articulated two primary contentions to the Supreme Court: (1) that the hearing justice erred when she overruled DBR’s decision and concluded that the auto body labor rate survey must be used by insurers as the sole determinant of the prevailing auto body labor rate; and (2) that the hearing justice erred in ruling that the provisions of § 27-29-4.4 apply to every insurer that is authorized to sell motor vehicle liability insurance in the State of Rhode Island. 

The Supreme Court held (1) that the hearing justice of the Superior Court should have deferred to DBR’s interpretation of § 27-29-4.4 (that the auto body labor rate survey should be just one factor in determining the prevailing auto body labor rate); and (2) that the hearing justice should not have reached the issue as to whether the provisions of § 27-29-4.4 apply to every insurer that is authorized to sell motor vehicle liability insurance in the State of Rhode Island, since that issue had not been raised by the parties.  Accordingly, the Court granted the petitions for certiorari and quashed the judgment of the Superior Court.

Harold Curtis v. State of Rhode Island, No. 08-153 (June 4, 2010)

The state appealed from a Superior Court judgment granting a motion to correct the sentence of the defendant, thereby awarding the defendant credit toward the completion of his full sentence for time served as a parolee on community confinement. 

The defendant was released from prison on parole in March 2006, a special condition of which was that he cooperate with community confinement for a minimum of ninety days.  He also signed a document stating that he would not receive credit toward his original sentence for the time he spent on parole.  He thereafter returned to prison as a parole violator. 

The defendant subsequently filed a pro se application for postconviction relief, which was treated as a motion for a corrected sentence by the hearing justice.  He argued that the ninety days he spent on community confinement while he was paroled should be credited toward the time he had left to serve after his parole was revoked.  

The Supreme Court held that under G.L. 1956 §§ 13-8-9, 13-8-16(a), and 13-8-19(b), and given the defendant’s assent to the terms of his permit, the ninety days he spent on community confinement should not be credited toward his original sentence.  The Supreme Court therefore vacated the Superior Court judgment.

State v. Maximo Guerrero, No. 09-111 (May 28, 2010)

On October 21, 2008, the defendant, Maximo Guerrero, was convicted by a jury of four counts of second-degree child molestation sexual assault and one count of first-degree child molestation sexual assault.  After the verdict, Guerrero filed a motion for a new trial.  He argued that he was entitled to a new trial because the complaining witness was evasive in her answers, she could not remember details about the alleged incidents, and her accounts were too improbable, such that her testimony was not credible.  The trial justice denied the motion for a new trial.  Thereafter, Guerrero was sentenced to thirty years, with twenty years to serve and a ten-year suspended sentence on his first-degree child molestation sexual assault conviction.  On each second-degree child molestation sexual assault conviction, Guerrero received a twenty-five year sentence with fifteen years to serve, with all sentences to run concurrently.

The single issue before the Supreme Court was whether the trial justice erred when she denied the defendant’s motion for a new trial after a jury convicted him of four counts of second-degree child molestation and one count of first-degree child molestation.  The Supreme Court held that the trial justice did not err in denying the defendant’s motion for a new trial.  The Court determined that the trial justice appropriately applied the " thirteenth juror" standard in evaluating a motion for a new trial after a jury verdict.  In particular, the Supreme Court held that the trial justice independently assessed the credibility of the witnesses, especially the complaining witness.  The trial justice acknowledged the inconsistencies in the complaining witness’s testimony, and the alleged improbability of her accounts of sexual assault, but ultimately concluded that the complaining witness was credible about the charged incidents.  The Court found no error in the trial justice’s analysis or conclusions, and affirmed the judgment of conviction.

William Page v. State of Rhode Island, No. 04-105 (May 26, 2010)

The applicant, William Page (having been previously convicted of first-degree murder and sentenced to life without the possibility of parole) appealed to this Court from the Superior Court’s denial of his application for postconviction relief.  On appeal, the applicant contended that his trial counsel was ineffective during both the trial and the sentencing phases.  Mr. Page contended that, prior to and during trial, trial counsel (1) failed to investigate and present any defense; (2) erred in advising him to opt for a bench trial rather than a jury trial; and, (3) erred in stipulating to facts presented by the prosecution.  Mr. Page further contended that, at the time of sentencing, his counsel failed to present sufficient mitigating evidence in an effort to avoid the imposition of the sentence of life without the possibility of parole.
 
Mr. Page additionally contended that his appellate counsel, during his direct appeal to the Supreme Court, was ineffective by virtue of his failure to argue to the Supreme Court that it should conduct a de novo review of his sentence of life without the possibility of parole.

The Supreme Court affirmed the Superior Court’s denial of postconviction relief with respect to Mr. Page’s allegation of ineffective assistance of trial counsel, both during his trial and at sentencing.  The Court held that counsel’s strategic decisions (viz., advising that Mr. Page waive his right to a jury trial, stipulating to the prosecution’s facts, and choosing which witnesses and evidence to focus on during sentencing) were well within the range of competency.

The Supreme Court held that Mr. Page’s appellate counsel had provided ineffective assistance in his failure to assert Mr. Page’s statutory right to a de novo review of his life without the possibility of parole sentence by the Supreme Court.  The Court then proceeded to conduct such a review of Mr. Page’s sentence, and it concluded that the sentence of life without the possibility of parole was appropriate and that the imposition of same should be ratified.

In re Brook Ann R., No. 09-156 (May 21, 2010)

The respondent, the biological father of minor child, Brook Ann R., appealed from a Family Court decree terminating his parental rights with respect to her.  On appeal, the respondent argued that the trial justice erred in (1) finding that he had abandoned his daughter, and (2) terminating his parental rights based upon his incarceration.  The Supreme Court held that the trial justice did not err in finding that the respondent had abandoned his daughter, because there was clear and convincing evidence that the respondent had not seen his daughter in four years, which is far longer than the statutory period of six months necessary to establish abandonment.  The Court further reaffirmed that it is the parent’s responsibility, not the responsibility of DCYF, to maintain contact with his or her child in the care of DCYF and that incarceration does not excuse a parent from this responsibility.  Because the Court affirmed the Family Court decree on the basis of abandonment, the Court declined to pass on the termination of the respondent’s parental rights on the basis of his imprisonment. 

David H. Haffenreffer, in his Capacity as Co-Executor of the Estate of Carolyn B. Haffeenreffer v. Karl Haffenreffer, in his Capacity as Co-Executor of the Estate of Carolyn B. Haffenrefeffer et al., No. 08-276 (May 18, 2010)

The defendant, Karl Haffenreffer, appealed from the Superior Court’s grant of summary judgment in favor of the plaintiff, David H. Haffenreffer.  The defendant raised two principal issues on appeal.  First, the defendant contended that the hearing justice in the Superior Court erred in ruling that an offer document, authored by the coexecutors administering the Estate of Carolyn B. Haffenreffer, precluded the defendant from using a credit, reflective of his anticipated share in the decedent’s overall estate, as a portion of the purchase price in acquiring three particular units of real estate from the estate.  Secondly, the defendant contended in the alternative that the hearing justice erred in failing to order a reformation of the offer document so as to comport with the actual pre-existing intention of the coexecutors, for whom the offer document was drafted. 

The Supreme Court reversed the judgment of the Superior Court.  The Court, after carefully reviewing the decedent’s will (which was incorporated by reference into the offer document), held that the contested provision unambiguously allowed the defendant to use a credit, reflective of his anticipated share in the decedent’s overall estate, as a portion of the purchase price in acquiring the three particular units of real estate from the estate.  Therefore, the Court held that summary judgment had been improperly granted in favor of the plaintiff.   

Susan McNulty v. City of Providence et al, No. 08-146 (May 13, 2010)

The plaintiff, Susan McNulty, appealed from the Providence County Superior Court’s grant of summary judgment in favor of defendant, City of Providence, arising out of Ms. McNulty’s injury on a Providence sidewalk.  On appeal, the plaintiff contended that the hearing justice erred in granting summary judgment in favor of the defendant, even though the plaintiff failed to give the city written notice within sixty days of her injury, as required by statute.  She further contended that the hearing justice erred in refusing to apply the doctrine of equitable estoppel against the defendant, since the city had not informed her of the sixty-day requirement.

The Supreme Court affirmed the Superior Court’s issuance of summary judgment in favor of the defendant, due to the fact that the plaintiff had not provided the statutorily required notice to the city within the requisite sixty days of her injury.  The Court further held that, because the city made no affirmative representations to the plaintiff, the doctrine of equitable estoppel was inapplicable to the case at bar.

Robert Buttie v. Norfolk & Dedham Mutual Fire Insurance Co. No. 07-368 (May 12, 2010)

In this case, a motor vehicle owned by the plaintiff, in which he and two of the defendants were passengers, was involved in a collision with an underinsured motorist.  All three parties sought uninsured/underinsured (UM) benefits from the plaintiff’s insurance carrier, and the two injured defendants sought UM benefits from their own policy.  The parties entered into binding arbitration to determine the amount of UM benefits to which each was entitled.  The case came before the Supreme Court when the plaintiff sought review by writ of certiorari of a Superior Court order confirming the arbitration award.  One of the defendants argued that certiorari should not have been granted, but the Court held it was within its discretion to issue the writ.

The plaintiff contended that the arbitrator erred in distributing the plaintiff’s insurance policy because the two injured defendants were given priority under the policy for which the plaintiff paid the premiums.  The Court found that it was indeed irrational for the arbitrator to have done so. 

Additionally, the two injured defendants argued that if the Court was to determine that the plaintiff was entitled to additional sums from their own policy, the portion of the award regarding their insurance companies’ liability to them also should be altered.  The Court agreed that the arbitrator’s irrationality had infected the entire award, and that the rights of the parties and the ends of justice required that they be compensated to the full extent of their damages, within their policy limits. 

Grazina Kulawas et al v. Rhode Island Hospital, No. 08-223 (May 11, 2010)

The plaintiff, Grazina Kulawas (Kulawas or plaintiff), appealed from a summary judgment granted in favor of the defendant, Rhode Island Hospital (hospital or defendant), her former employer.  The plaintiff, who was injured while walking down a ramped corridor on her way to lunch in the hospital cafeteria, settled her workers’ compensation claim against the hospital.  In accordance with the provisions of G.L. 1956 § 28-33-25.1, the plaintiff executed a release and the trial judge entered a decree providing for the payment of $48,000 that was not subject to any third-party liens pursuant to the Workers’ Compensation Act (act).

The release provided that it was specific to the claim that the injury is work-related and did not bar possible non-work-related claims.  Kulawas subsequently filed a premises negligence suit against the hospital, and the defendant filed a motion for summary judgment based on G.L. 1956 § 28-29-20, the exclusivity provision of the act.  The hearing justice granted the motion and concluded that, once an employee and employer enter into a settlement based on § 28-33-25.1, it is a compromise settlement of a disputed claim between the employer and employee and the employee’s day in court has ended.

The Supreme Court agreed with this holding, concluding that the applicability of the exclusivity provision of the act as set forth in § 28-29-20, does not depend on the wording of the release or decree from the Workers’ Compensation Court.  The Supreme Court declared that its holding in Manzi v. State, 687 A.2d 461 (R.I. 1997) (mem.), controls the result in this case.  In Manzi, the Court held that notwithstanding a workers’ compensation release specifying that the settlement was not payment of workers’ compensation benefits, under the exclusivity provision of the act, the defendant was discharged from any liability when he signed the release based on § 28-33-25.1.

The Court further declared that the plaintiff’s failure to preserve her common law right to bring an action at law against her employer precluded her from maintaining a tort claim in Superior Court based on the same injury arising from the same incident.

State v, Christopher Langstaff, No. 08-44 (May 11, 2010)

The defendant, Christopher Langstaff, appealed from his conviction by a jury in the Newport County Superior Court on a single count of second-degree child molestation sexual assault. On appeal, the defendant contended that the trial justice clearly erred in admitting testimony relating to a separate instance of sexual contact between the defendant and the complaining witness, since the defendant had only learned of that evidence on the morning that the prosecution was going to present it. The Supreme Court held that, even though there was no indication that the prosecution deliberately withheld such evidence, the trial justice clearly erred in permitting the evidence to be introduced, in view of its late disclosure. Accordingly, the Court vacated the judgment of conviction and remanded the case to the Superior Court for a new trial.

Veronika Ayriyan v. Daniel Ayriyan, No. 09-0029, No. 09-0030 (May 10, 2010)

The plaintiff, Veronika Ayriyan, appealed from judgments of the Family Court awarding defendant Daniel Ayriyan full custody of their children and denying her motion to vacate the order of the Family Court entered on September 4, 2007.  The parties divorced in 2001 after two years of marriage, and successfully shared custody of their two boys until 2007.  At this time, Veronika alleged in Massachusetts court that Daniel had abused their older son and sought a protective order.  Over the course of approximately six months, the parties each filed various motions with the Family Court seeking physical placement of their children among other forms of relief.  A guardian ad litem was appointed for the children who made a recommendation of an appropriate custody arrangement to the Family Court.  Ultimately, the trial justice issued an order that awarded physical possession to Daniel and continued the matter for hearings. 

After conducting a hearing, the trial justice awarded sole custody and physical placement to Daniel and specified Veronika’s visitation rights.  Additionally, she found Veronika to be in contempt of an order of the Family Court establishing Rhode Island as the children’s " home state" when she sought protective orders in Massachusetts court. 

On appeal, Veronika argued that the trial justice erred when she awarded full custody of the children to Daniel because of an inappropriate reliance on the guardian’s report and a failure to meaningfully apply the factors set forth in Pettinato v. Pettinato, 582 A.2d 909, 914 (R.I. 1990).  She also maintained that the trial justice erred when she found her to be in contempt.  The Supreme Court held that the trial justice, in fact, rendered a decision that considered all of the evidence in light of every Pettinato factor, and thus she did not abuse her discretion when she awarded full custody to Daniel.  The Court also held that the trial justice did not abuse her discretion when she found Veronika to be in contempt of a Family Court order when she sought protective orders in Massachusetts court.  The Court did not consider Veronika’s appeal of the denial of her motion to vacate because Veronika neither briefed nor argued that issue.  Accordingly, the Court affirmed the judgments of the Family Court. 

Attorney General Patrick C. Lynch v. Rhode Island Department of Environmental Management et al, No. 08-235 (May 5, 2010)

The plaintiff, Attorney General Patrick C. Lynch, appeals from a Superior Court judgment, which affirmed the decision of a hearing officer of the Department of Environmental Management Administrative Adjudication Division for Environmental Matters (AAD).  The AAD hearing officer had dismissed the Attorney General’s administrative appeal of a 2003 license to operate a refuse facility in East Providence on the ground of mootness.  Both the AAD hearing officer and the Superior Court trial justice had held that the issue of the validity of the 2003 license was rendered moot by that license’s expiration in 2006, as well as by the subsequent issuance of a renewal license and the transfer of that license.  The Supreme Court issued a writ of certiorari to consider whether the issue had been rendered moot.  

The Supreme Court concluded that the issue of the validity of the 2003 license was not moot, because the subsequent renewal and transfer licenses were each inherently linked to the original 2003 license. The Supreme Court therefore granted the Attorney General’s petition for certiorari, quashed the judgment of the Superior Court, and remanded this case to the Superior Court with instructions that the matter be returned to the AAD for administrative proceedings to commence expeditiously.

Carmen K. (Marandola) Vanderheiden v. Edward Marandola, Jr., No. 09-69 (May 5, 2010)

The defendant, Edward Marandola, Jr. (Edward), appealed from an order of the Family Court enforcing an arbitration decision.  The arbitrator declared that it was reasonable for Edward to pay for two years of private high school tuition for his son.  The Family Court trial justice found that Edward agreed to a property settlement agreement as well as a consent order that called for arbitration, and thus, Edward was bound by the decision.  Edward argued on appeal that the Family Court did not have subject matter jurisdiction over the arbitrator’s decision, and in the alternative, the trial justice erred in automatically confirming the decision without properly reviewing it. 

The Supreme Court held that the Family Court properly asserted its jurisdiction in this matter.  The Family Court has the statutory authority to hear motions for child support and custody, as well as the authority to govern property settlement agreements and contracts between husbands and wives.  The Supreme Court held that Edward was bound by the terms of his property settlement agreement and subsequent consent order, both of which contained the arbitration provision. 

The Supreme Court also held that the trial justice committed harmless error when he failed to review the merits of the arbitrator’s decision.  The issue at bar pertained to a form of child support, and thus, the trial justice should have reviewed the arbitration decision to determine whether there were any inequities to the child or to the parties.  In the case at bar, however, this Court determined that there were no such inequities.

Richard Cote v. State of Rhode Island, No. 09-39 (May 4, 2010)

The applicant appealed from a Superior Court order denying his application for postconviction relief, in which he sought to modify a sentence imposed in 1992 for multiple counts of robbery, conspiracy, and assault with a dangerous weapon.  The applicant had entered nolo contendere pleas to those counts.  He was sentenced to forty years in the Adult Correctional Institutions (ACI) on each of the robbery counts, with twenty years to serve and twenty years suspended; ten years to serve on the conspiracy count; and twenty years to serve on each of the counts of assault with a dangerous weapon.   All sentences were to run concurrently.

At the time the applicant entered his plea, the Department of Corrections (DOC) calculated all of the good-behavior and institutional-industries credits that an inmate potentially could earn over the course of his or her period of incarceration at the beginning of his or her sentence and estimated that inmate’s earliest possible release date based on that calculation.  The applicant asserted that, at the time of his plea, he was provided with a table setting forth estimated times to serve based on his sentence term.  In light of this information, the applicant believed that, if he accepted a plea of forty years, with twenty years to serve, his actual time to serve would be approximately twelve years after consideration of all potential good-behavior and work-time credits. 

The Supreme Court reviewed the DOC’s method of calculating good-behavior and work-time credits in Barber v. Vose, 682 A.2d 908 (R.I. 1996).  In that case, the Court held that the DOC’s computation method was not consistent with the plain language of G.L. 1956 § 42-56-24.  Specifically, the Court noted that good-behavior or good-time credits under the statute did not accrue as a matter of right and that such credits should be awarded on a monthly basis only after an inmate had earned them during the preceding month.  The DOC thereafter altered its good-behavior and work-time-credit-calculation policy to comport with the Court’s decision.  Under the new calculation method, the applicant could be expected to serve approximately fourteen years in the ACI.

On appeal, the applicant contended that DOC’s revised method for calculation of good‑time credits resulted in a misrepresentation of the minimum time the applicant would be required to serve in the ACI as a result of his plea.  He asserted that he relied upon the DOC’s alleged representations in deciding to plea nolo contendere to the charges against him and to accept a sentence of forty years, with twenty years to serve.  Because the information that allegedly formed the basis of his plea later was deemed unlawful, he suggested that his plea was not knowing, intelligent, and voluntary, and thus it should be vacated.

The Court rejected the applicant’s argument, noting that the Superior Court has no authority over the DOC’s decision-making with respect to the award of good-time and industrial-time credits to individual inmates.  Thus, such considerations did not implicate the Superior Court’s determination of the voluntariness of the applicant’s plea.

Plainfield Pike Gas & Convenience, LLC. v. 1889 Plainfield Pike Realty Corp. No. 08-138 (May 3, 2010)

This case arose out of a contract executed by the defendant corporation and a third party.  The plaintiff LLC claimed to hold an interest under that agreement as the nominee of the third party and appealed from: (1) a summary judgment in favor of the defendant; (2) an order denying its motion to vacate the summary judgment; and (3) an order removing the plaintiff’s attachment of the defendant’s real property.

The Court determined that the Superior Court erred in granting summary judgment for the defendant because a question of fact existed in regard to whether the plaintiff was the third party’s nominee under the contract.  The Court noted that an affidavit executed by one of the plaintiff’s members stated that the plaintiff was the third party’s nominee.  The Court also observed that plaintiff contended its members asserted themselves as the third party’s nominee in communications with the defendant and that the plaintiff’s investors paid $175,000 to an agent of the defendant.  Additionally, the defendant presented evidence that the parties had engaged in a similar course of conduct with regard to other properties.

Because the Court vacated the summary judgment entered in favor of the defendant, the Court also vacated the order removing the attachment and directed that the Superior Court, on remand, reinstate the writ of attachment.

In re Paul Harrison, No. 09-22 (April 29,2010)

The Supreme Court granted the state’s request for review by writ of certiorari of a Family Court order placing a minor at Ocean Tides Residential Treatment Program (Ocean Tides), a facility dedicated to the treatment of male adolescents.  The only issue on appeal was whether a Family Court justice retains the authority to place a juvenile in a facility other than the Training School when that juvenile has been certified under G.L. 1956 § 14-1-7.3(a)(2) and sentenced to serve the period of the child’s minority " in the training school for youth in a facility to be designated by the court."   The state contended that that a Family Court justice did not have the authority under § 14-1-7.3 to place a certified juvenile at Ocean Tides because that facility is outside of the training school.  The Public Defender responded that the statute provides the Family Court with discretion with regard to placement.  After reviewing the juvenile justice statute as a whole, the Court concluded that the General Assembly intended to vest the Family Court with broad authority to order a TCP for children sentenced to the Training School, even when they have been certified under § 14-1-7.3.  Accordingly, the Family Court justice’s order was affirmed.

William J. Nye v. Paul G. Brouseau et al., No. 09-20 (April 29, 2010)

William J. Nye appealed from a Superior Court judgment that fixed the boundary dividing his property from that of his neighbors, the defendants, Paul G. Brousseau and Susan J. Brousseau, enjoined Nye from trespassing on the Brousseaus’ property, and awarded the Brousseaus damages on the basis of breach of contract.  A row of shrubbery stood between Nye and the Brousseaus’ property.  A dispute arose between the parties about the accurate boundary line between their properties.  The Brousseaus had the property surveyed, which revealed that a portion of Nye’s driveway and a portion of the southernmost bushes actually were on the Brousseaus’ property.  Nye disagreed with the results of this survey. 

Nye filed a pro se complaint against the Brousseaus in Superior Court.  He argued that the boundary between the properties followed the row of shrubbery and was established by acquiescence.  He also sought temporary and permanent injunctive relief to prevent the Brousseaus " from trespass of the asserted boundary line."   The Brousseaus raised two counterclaims.  First, they sought a declaratory judgment that the boundary line dividing the two properties was as determined in the survey.  Second, they sought a temporary restraining order and injunction preventing Nye from entering their property.  For both counts of the counterclaim, the Brousseaus also requested that they " be granted such other and further relief as [the Superior Court] shall deem appropriate and the circumstances of the case may require."        

After a nonjury trial, the trial justice enjoined both parties from entering the property of the other without consent, awarded Nye damages for the Brousseaus’ trimming of the bushes in his possession, and ruled that the shrubbery represented the boundary between the properties under the doctrine of title by acquiescence.  The trial justice ruled that the boundary should run through the " centerline" of the shrubbery.  Finally, acknowledging that the Brousseaus " prayed for an award of any other relief that the Court may deem equitable and just," the trial justice awarded one-half the cost of the surveyor’s bill to the Brousseaus for Nye’s breach of his agreement to share the cost of the survey. 

On appeal, Nye argued that trial justice erred when he fixed the boundary as running down the center of the trunks, rather than locating the shrubbery entirely on his property, when he issued an injunction preventing Nye from entering the Brousseaus’ property without their consent, and when he entered judgment in favor of the Brousseaus on an " unasserted" breach-of-contract claim.  The Supreme Court afforded deference to the trial justice’s conclusion that the boundary line ran through the shrubbery’s centerline as a question of fact and held that he did not abuse his discretion.  The Court also vacated the injunction against Nye as unnecessary because there no longer was any imminent threat that Nye would trespass the Brousseaus’ property given that Nye now owned the challenged area.  Finally, the Court held that the boilerplate language of the Brousseaus’ counterclaim was not a sufficient basis for the trial justice’s award in their favor for monetary damages.  Accordingly, the Court affirmed the Superior Court judgment in part and vacated the judgment in part.

John E. Ashley et al v. Kenneth A. Kehew et al, No. 08-264 (April 28, 2010)

John Ashley and Cheryl Beach, the owners of a residential property in Portsmouth, appealed from a Superior Court decision denying their claim for injunctive relief to enjoin the Kehews, the owners of an adjacent residential lot, from subdividing their property.  Ashley and Beach argued that the Kehews’ property was burdened by a restrictive covenant prohibiting further subdivision of the property and that Ashley and Beach had the right to enforce the restrictive covenant.  They grounded their authority to enforce the restrictive covenant in a condition on the face of a subdivision plat that prohibited further subdivision of the Kehews’ property and in identical language contained in a deed.  After a trial without a jury, the trial justice ruled that the Kehews’ property no longer was burdened by the restrictive covenant because all parties, or their predecessors in interest, mutually had agreed to release the Kehews’ property from the restrictive covenant.

On appeal, the Supreme Court considered whether the restrictions remained in effect or whether they effectively had been released by the respective parties.  The Court recognized that Rhode Island law was relatively scant on what constitutes an effective release of a restrictive covenant and so the Court looked to principled authorities for guidance.  The Court held that a restrictive covenant can be terminated by a release, but the validity of a purported release is governed by Rhode Island’s well-settled rules on the interpretation of contracts.  The Court carefully scrutinized what purported to be the releasing language in the deeds and other instruments related to the various conveyances, and concluded that Ashley and Beach never released their right to enforce the restrictions against further dividing the Kehews’ property.  The Court held that the trial justice clearly erred in finding that all parties mutually agreed to the release of the restrictive covenants.  The Supreme Court vacated the Superior Court’s judgment and remanded the record for entry of judgment in favor of John Ashley and Cheryl Beach.

George Karousos et al v. Jonathan Pardee et al, No. 08-174

In 1997, George Karousos filed an abuse-of-process complaint against Jonathan Pardee and eleven other defendants.  The basis for the complaint was Pardee’s appeal to the Newport Zoning Board of a zoning enforcement officer’s letter that appeared to authorize Karousos to operate a culinary school, a nonconforming use, in a building that had not been used as a school for close to twenty years.  In their answer to the complaint, the defendants raised the affirmative defense that their appeal was entitled to immunity under the anti-SLAPP statute, G.L. 1956 chapter 33 of title 9. 

The Superior Court granted summary judgment in favor of the defendants.  The motion justice held that the defendants were immune from civil liability in the abuse-of-process action because their actions were not subjectively baseless and, therefore, were protected by the anti-SLAPP statute.  In accordance with the statute, the Superior Court awarded the defendants’ costs and reasonable attorneys’ fees, but in determining what were reasonable attorneys’ fees, the motion justice excluded attorneys’ fees and costs relating to an earlier unsuccessful summary-judgment motion and a petition for a writ of certiorari that was denied.

On appeal, Karousos raised two arguments.  First, Karousos argued that whether the defendants’ actions were subjectively baseless is a matter for the fact-finder and the motion justice erred by determining it as a matter of law.  Second, Karousos sought to have the award of attorneys’ fees vacated.  In a cross-appeal, the defendants argued that they were entitled to attorneys’ fees and costs as provided for in the anti-SLAPP statute, including those relating to this appeal, as well as to the unsuccessful summary judgment motion and petition for a writ of certiorari, because those actions were reasonable.

The Supreme Court affirmed the Superior Court’s grant of summary judgment and affirmed the Superior Court’s award of attorneys’ fees and costs.  The Court held that the defendants’ appeal was not subjectively baseless because the only evidence offered at summary judgment was that the defendants were motivated to appeal the zoning enforcement officer’s letter in an effort to halt the opening of the culinary institute.  If the defendants were successful before the Newport Zoning Board, they could have achieved that goal.  No evidence of any ulterior motive was offered by Karousos, and the Court held that the Superior Court properly granted the defendants’ motion for summary judgment because the defendants’ actions were entitled to immunity under the anti-SLAPP statute.  The case was remanded to the Superior Court for a further determination of the defendants’ reasonable attorneys’ fees and costs relating to this appeal.

State v. Jose Luis Vargas, No. 09-82 (April 22, 2010)

The defendant, Jose Luis Vargas (Vargas or defendant), appealed from multiple convictions of child molestation.  On appeal, Vargas contends that (1) the trial justice erred by allowing the state to use some of Vargas’s prior convictions to impeach him if he were to take the witness stand; (2) the trial justice erred by allowing the state to cross-examine the victim’s grandmother concerning Vargas’s sexual relationship with her then-minor daughter; and (3) the trial justice erred by failing to adequately inform the jury about the distinctions between two counts that both charged Vargas with second-degree child molestation.

The Supreme Court upheld the convictions.  The trial justice appropriately followed the balancing procedures required by Rule 609 of the Rhode Island Rules of Evidence when he determined that the state could impeach Vargas with his prior convictions for possession of a stolen motor vehicle as well as a federal conviction for uttering and delivering forged United States Treasury checks.  The trial justice determined on the record that the prejudicial effect of these convictions would not substantially outweigh their probative value. 

Additionally, the trial justice did not abuse his discretion when he allowed a defense witness to be cross-examined concerning her reaction (or lack thereof) to the defendant’s sexual relationship with her then-underage daughter.  The testimony elicited from this defense witness had already been disclosed during the state’s case-in-chief and this testimony was relevant evidence under Rule 401 of the Rhode Island Rules of Evidence. 

Finally, the trial justice did not err when he failed to correlate the specific episodes of molestation with specific counts in the indictment.  The jury found the defendant guilty of all counts, and there is no evidence from the record that the jury was confused or needed further clarification.      

State of Rhode Island v. Robert Erminelli, No. 09-64 (April 22, 2010)

The defendant, Robert Erminelli, appealed from a judgment of conviction by a trial justice, sitting without a jury, for violating G.L. 1956 § 11-37-8.3, second-degree child molestation sexual assault.  The trial justice found that the defendant assaulted the victim, that the defendant did so for the purposes of his own sexual gratification, and that the victim was fourteen years of age or younger.  The trial justice sentenced the defendant to twenty-five years, with eight years to serve and seventeen years of probation.  The defendant filed a motion for a new trial, which the trial justice denied.  On appeal, the defendant argues that the trial justice erred in denying his motion for a new trial because the trial justice misconceived the evidence and incorrectly found that the state’s witnesses were credible.     

The Supreme Court held that the trial justice did not err when he denied the defendant’s motion for a new trial.  The Court applied the same deferential standard of review to the trial justice’s denial of the defendant’s motion for a new trial as it would to the trial justice’s finding of facts on the merits.  The Supreme Court concluded that the trial justice was faced with conflicting accounts of what transpired and that the trial justice made an express credibility determination that the state’s witnesses were believable and truthful and the defense witnesses were programmed and lacked credibility.  The Court held that the trial justice’s credibility determinations were not clearly wrong nor did the trial justice misconceive or overlook material evidence.  The judgment of conviction was affirmed, and the case was remanded to the Superior Court.   

Simcha Berman et al v. Laura Sitrin, in her capacity as Finance Director for the City of Newport et al, No. 08-74 (April 20, 2010)

This case concerns a catastrophic accident that occurred along the City of Newport’s Cliff Walk attraction, a public easement over private land, running high above the Atlantic shore.  The plaintiffs purchased admission tickets to visit The Breakers mansion, a historic site owned and operated by the defendant, The Preservation Society of Newport (Society).  After exiting the mansion’s grounds, and walking down a public street toward the Cliff Walk, one plaintiff ventured onto a " beaten path," when, he alleges, the ground shifted below him, causing him to fall twenty-nine feet onto the rocks below.  He suffered a severe spinal cord injury, rendering him a quadriplegic. 

The plaintiffs appeal from the Superior Court’s grant of summary judgment in favor of both defendants, the Society and the City of Newport (city or Newport).  On appeal, the plaintiffs argue that in this case, the Rhode Island Recreational Use Statute (RUS), G.L. 1956 chapter 6 of title 32, does not apply to the Society or the city.  The plaintiffs argue that there was a joint enterprise between the defendants regarding Cliff Walk maintenance and repair; thus, the Society’s wanton and willful conduct can be imputed to the city.  

The Supreme Court affirmed the grant of summary judgment in favor of the Society, but on grounds other than those relied upon by the trial justice.  The Court held that the Society and all landowners whose properties abuts the Cliff Walk have no control over the easement and are not liable for injuries suffered on the public easement.  It is a well established legal principal in this jurisdiction, as well as others, that a landowner whose property abuts a public way has no duty to repair or maintain it.  The Court opined that because the Society has no duty to the visitors on the Cliff Walk, it is not responsible for plaintiff’s injuries.

The Court, however, reversed the grant of summary judgment in favor of the city.  The RUS limits landowner liability for injuries occurring on public land, unless the landowner discovered a user’s peril and then acted willfully or maliciously in failing to guard or warn against a dangerous condition.  It is the Court’s opinion that Newport owes a duty to members of the public who visit the Cliff Walk, and in this case, cannot use the RUS as a shield against liability.  Because the city had actual notice of dangerous instabilities in the ground underneath the Cliff Walk, particularly in the area where this injury occurred, Newport discovered the user’s peril such that the RUS is not a defense to liability.  Additionally, the evidence in the record established that the city willfully and maliciously failed to post adequate signs in the area, warning users about these instabilities.    

CASE NO:                              No. 2008-74-Appeal.

David L. Steinhof et al v. Michelle J. Murphy et al, No. 08-136 (April 19, 2010)

The plaintiffs and some of the defendants cross-appeal from the Superior Court’s summary judgment (1) dividing a trust corpus into two equal shares, and (2) directing that a proportional share of federal and state estate taxes be paid out of that trust.  One of the defendants requested that the Court affirm summary judgment in both respects.

The Supreme Court affirmed in part and vacated in part the summary judgment of the Superior Court.  The Court held that, given the ambiguous nature of the trust, questions of material fact exist that were not appropriate for summary disposition.  Additionally, the Court held that taxes should be apportioned between the trust and the estate because the plain language of the Uniform Estate Tax Apportionment Act, G.L. 1956 chapter 23.1 of title 44, clearly requires the apportionment of state and federal estate taxes among all people interested in an estate, unless a will otherwise provides.  The Court held that the will at issue did not provide otherwise. 

Dennis D. Bossian v. Paul A. Anderson, No. 08-333 (April 16, 2010)

The plaintiff, Dennis D. Bossian, appealed pro se from the Providence County Superior Court’s grant of summary judgment in favor of the defendant, Paul A. Anderson.  On appeal, the plaintiff contended that the hearing justice erred in granting summary judgment in favor of the defendant on the basis of the doctrine of res judicata, since, in his view, his claim of conversion had not yet been explicitly ruled upon.  The Supreme Court upheld summary judgment in favor of the defendant, holding that the transactional rule in the Court’s res judicata jurisprudence applied to bar the plaintiff’s conversion claim.

Kathryn Manning et al v. Peter J. Bellafiore, M.D., No. 05-320 (April 12, 2010)

The defendant, Peter J. Bellafiore, M.D., appealed from a Superior Court order granting the motion for a new trial sought by the plaintiff, Kathryn Manning.  This wrongful death and medical malpractice action arose out of the tragic and premature death of Michael Manning from a stroke.  After a lengthy trial, a jury found in favor of Dr. Bellafiore.  The trial justice granted the plaintiff’s motion for a new trial, both as a sanction for what he considered Dr. Bellafiore’s " flagrant discovery abuse[s]" and because he found the jury’s verdict to be against the fair preponderance of the evidence.  The trial justice found the jury’s verdict flawed because the expert testimony established that the appropriate standard of care required prompt imaging of Mr. Manning’s brain, which would have revealed the cause of his stroke, and because of the questionable credibility of Dr. Bellafiore’s testimony that he discussed options for accomplishing the required imaging with Mr. Manning.

On appeal, Dr. Bellafiore argued that the trial justice abused his discretion in granting the plaintiff’s motion for a new trial as a form of sanction.  Additionally, Dr. Bellafiore contended that the trial justice’s determination that the jury’s verdict was against the weight of the evidence was clearly wrong.  The Court reviewed the trial justice’s decision to grant the plaintiff a new trial and concluded that he applied the correct standard of review to the plaintiff’s motion for new trial, thoroughly reviewed the testimony at trial, and articulated his basis for granting a new trial.  Moreover, the Court carefully reviewed the voluminous evidence elicited at trial and held that the trial justice conducted the appropriate analysis, did not overlook or misconceive material evidence, and was not otherwise clearly wrong.  Accordingly, it affirmed the order of the Superior Court.

State v. Joseph McManus, No. 02-655 (April 2, 2010)

The defendant, Joseph McManus (the defendant) was before the Supreme Court on appeal from Superior Court judgments of conviction for criminal solicitation.  The defendant was found guilty after a jury trial of soliciting Vincent Arruda (Arruda) to murder Attorney General Jeffrey Pine (Attorney General) and soliciting Robert Smith (Smith) to murder the Attorney General and to feloniously assault Assistant Attorney General Margaret Lynch (Lynch). 

On appeal, the defendant raised a number of issues that, he contended, were an abuse of discretion by the trial justice and warrant reversal of his conviction.  The defendant asserted three instances of purported error concerning the testimony of Smith, a previously cooperating witness: the state’s use of leading questions; the introduction of the witness’s grand jury testimony; and error by the trial justice in allowing the transcript of Smith’s interview with the investigators to be introduced as a full exhibit.  The defendant also argued that the trial justice erred when he allowed a detective investigating the case to testify because the state had failed to list him as a witness in its discovery answer. 

The defendant also alleged that the testimony of two witnesses was allowed in violation of Rule 16 of the Superior Court Rules of Criminal Procedure and had an impacted on his right to confront his accusers.  Finally, the defendant contended that his sentence violated both the state and federal constitutions as cruel and unusual punishment.  The Supreme Court affirmed the convictions. 

Although the Court concluded that the trial justice erroneously allowed Smith’s statement to be introduced under Rule 803(5) of the Rhode Island Rules of Evidence, as a recorded recollection, the Supreme Court held that its introduction was proper under Rule 801(d)(1)(A) of the Rhode Island rules of Evidence, as a prior inconsistent statement.  Next, the Supreme Court held that the use of leading questions was proper because Smith was an adverse witness; however, the Court also concluded that the trial justice came dangerously close to a prejudicial abuse of discretion because of the length of the examination.  The Court also held that the introduction of Smith’s grand jury testimony was not properly preserved for appellate review.

Additionally, the Court rejected the constitutional issues that the defendant raised because the use of leading questions and inconsistent out-of-court statements did not have an impact on the defendant’s right of confrontation.  The Court held that the defendant’s discovery allegation was also without merit because the state properly listed that it may call other witnesses; this was not a case of unfair surprise; and there was no showing of bad faith on the part of the prosecutor.  Finally, the sentencing issue was not properly before the Court because the defendant had not filed a motion to reduce sentence, in accordance with Rule 35 of the Superior Court Rules of Criminal Procedure. 

In re Caleb W. et al, No. 08-45 (April 2, 2010)

The respondent, the biological father of minor children Caleb W. and Cullen W., appealed from a Family Court decree terminating his parental rights with respect to both children.  The respondent contended on appeal that the Family Court justice erred in finding that the Department of Children, Youth and Families (DCYF) had made reasonable efforts toward reunification and that respondent was noncompliant with DCYF directives.  The respondent further contended that the Family Court justice had improperly relied on his homelessness and periods of imprisonment in rendering his decision. 

The Supreme Court held that it was unable to perceive a basis in the record for ruling that the Family Court justice was clearly erroneous or overlooked or misconceived material evidence in reaching his determination that the grounds for termination of parental rights were satisfied.  The Supreme Court therefore held that the Family Court justice did not err in terminating the respondent’s parental rights.

Accordingly, the decree of the Family Court was affirmed.

In re Miguel A., No. 09-63 (March 25, 2010)

The respondent appeals from an adjudication of delinquency entered in the Family Court.  The respondent was charged with three counts, of what would, if committed by an adult, be first-degree child sexual molestation.  The respondent makes numerous contentions on appeal.  He argues that: (1) the trial justice erred by precluding two witnesses from testifying and such preclusion violated his constitutional right to compulsory process; (2) the trial justice erred by denying his motions for judgment of acquittal; and (3) his due process right to present a defense was violated because of the vagueness of the accusations against him. 

The Supreme Court affirmed the adjudication of delinquency.  The Court reasoned that the trial justice did not abuse her discretion when she precluded two defense witnesses from testifying; defense counsel failed to comply with the rules of discovery, and additionally, the trial justice properly found that the witness’s proffered testimony would be irrelevant.  Additionally, the respondent’s compulsory process claim was waived under this Court’s " raise-or-waive" rule and failed to meet the rule’s limited exception.

The Court found that the respondent failed to renew his motion for judgment of acquittal, and thus he did not preserve the issue for appellate review.  Nonetheless, even if the respondent properly preserved this question, the Court would have upheld the trial justice’s decision of adjudication of delinquency because the evidence presented during the hearing was sufficient to support a verdict of guilt beyond a reasonable doubt.

Finally, this Court held that the respondent’s due process right to present a defense was not violated.  It is well settled that the state does not have to prove the exact date when a crime occurs, but rather can allege that the act occurred within a certain period.

H.V. Collins Company v. Jerome Williams, et al, No. 09-154 (March 24, 2010

The plaintiff, H.V. Collins Company (Collins), appeals from a Superior Court judgment in favor of the defendants, the State of Rhode Island, Department of Administration (department) and A.F. Lusi Construction, Inc. (Lusi).  The facts in this case arose from a bid opening by the State of Rhode Island seeking bids for a general contractor for a new state police headquarters and E 9-1-1 facility.  Collins submitted its bid two minutes late.  Notwithstanding the lateness, an employee of the department publicly opened and recorded Collins’s bid.  The next day, the purchasing agent for the department notified Collins that because its bid was deemed late it would not be considered by the awarding authority. 

In its second amended complaint, Collins sought a declaratory judgment declaring the contract award invalid and injunctive relief to restrain the department from awarding the contract to Lusi.  Subsequently, Collins withdrew its motion for preliminary injunction, thereby leaving only the declaratory-relief request.  The Superior Court granted the defendants’ motion for summary judgment and this appeal followed.

Before hearing oral argument on this case, the Supreme Court directed the parties to submit memoranda on whether this case was moot because the facility was substantially complete and Collins had not made a claim for monetary damages.  The Court declared that this case was moot because there was no viable relief available to the plaintiff.

State v. Angelo Marmolejos, No. 08-103 (March 24, 2010)

The defendant, Angelo Marmolejos (defendant), appealed from Superior Court judgments of conviction for assault with intent to commit murder in a dwelling house, while armed with a dangerous weapon, in violation of G.L. 1956 § 11-5-4 and for using a firearm while committing a crime of violence, in violation of G.L. 1956 § 11-47-3.2(a).  On appeal, the defendant contended that a photo array introduced at trial was not relevant to the issues, and that its probative value was substantially outweighed by its prejudicial effect, in violation of Rule 403 of the Rhode Island Rules of Evidence.  The defendant also argued that in accordance with Rule 16 of the Superior Court Rules of Criminal Procedure, the trial justice erred in two respects.  Specifically, the first error occurred when the complainant, Jose Lespin (Lespin), testified that two shots were fired, rather than one, as the defendant had testified before the jury.  Finally, the defendant alleges a second instance of unfair surprise arose from Lespin’s testimony that he was hallucinating when the police interviewed him at the hospital.  The Supreme Court affirmed the convictions. 

The Supreme Court held that the trial justice did not abuse his discretion when he allowed the introduction of the photo array into evidence and that any potential prejudice that may have arisen was cured by the trial justice’s cautionary instruction to the jury.  The Supreme Court also held that neither of the defendant’s allegations of surprise rose to the level of a discovery violation.           

State v. Kenneth Pitts, No. 08-195 (March 23, 2010) 

The defendant, Kenneth Pitts, appealed from his conviction by a jury in the Providence County Superior Court of one count of disorderly conduct stemming from the exposure of his genitals to a Providence police officer.  On appeal, the defendant contended that the trial justice erred in: (1) denying his motions for a judgment of acquittal; (2) allowing testimony of the Providence police officer as to evidence found in the defendant’s vehicle; and (3) allowing the prosecution to cross-examine the defendant regarding certain other evidence that was found in the defendant’s vehicle.

 The Supreme Court affirmed the judgment of the Superior Court, holding (1) that the trial justice did not err in denying the defendant’s motions for a judgment of acquittal because the testimony of the Providence police officer was sufficient to support a guilty verdict beyond a reasonable doubt; and (2) that the trial justice did not abuse his discretion with respect to the challenged evidentiary rulings.

State v. Alonzo Shelton, No. 09-18 (March 23, 2010)

Alonzo Shelton, the defendant, appealed from a judgment of conviction and sentence for eight counts arising from the murder of one woman, Jessica Imran, and the assault with intent to murder another, Julie Lang, the defendant’s former girlfriend.  The state alleged that the defendant, and his nephew, Barry Offley, were responsible for the shootings of the women in Ms. Imran’s Pawtucket apartment in the early morning hours of July 27, 2006.  Ms. Imran died from her wounds, but Ms. Lang survived and informed the police of defendant’s address.  At approximately 4:30 a.m., the police officers responded to this address, where they found the first-floor apartment of the three-tenement building with a light on and the door ajar.  The officers entered the apartment to search for a victim or suspect.  In the process of performing this security sweep, an officer observed several items in an illuminated bedroom in plain view on the bed.  After the apartment was secured, the apartment’s inhabitants advised the officers that the apartment belonged to Brenda Alvarez, the defendant’s girlfriend.  When Ms. Alvarez arrived home, two detectives explained the situation to her and sought her consent to search her apartment.  After reading the consent-to-search form both by herself and with the officers, Ms. Alvarez signed the consent-to-search form.  The officers accompanied her into the apartment, where they searched her bedroom and seized the items that the officer previously had observed, in addition to several additional items. 

The defendant was charged with (1) first-degree murder of Jessica Imran in violation of G.L. 1956 § 11-23-1 and § 11-23-2; (2) conspiracy to commit the crime of murder of Jessica Imran in violation of G.L. 1956 § 11-1-6 and § 11-23-1; (3) assault on Julie Lang with a dangerous weapon in a dwelling with the intent to murder her in violation of G.L. 1956 § 11-5-4; (4) conspiracy to murder Julie Lang in violation of § 11-1-6 and § 11-23-1; (5) burglary of the dwelling of Jessica Imran in violation of G.L. 1956 § 11-8-1; (6) conspiracy to commit burglary in violation of § 11-1-6 and § 11-8-1; (7) carrying of a pistol without a license in violation of G.L. 1956 § 11-47-8(a); (8) possession of a firearm following a previous conviction for a crime of violence in violation of § 11-47-5; (9) discharge of a firearm during a crime of violence, resulting in the death of Jessica Imran, in violation of § 11-47-3.2(b)(3); and (10) discharge of a firearm while in the commission of a crime, resulting in the injury of Julie Lang, in violation of  § 11-47-3.2(b)(2).  After a trial in Superior Court, the jury found the defendant guilty of conspiring with Offley to murder Julie Lang, conspiring with Offley to murder Jessica Imran, of the first-degree murder of Jessica Imran, of assaulting Julie Lang with a dangerous weapon in a dwelling with intent to murder her, of discharging a firearm while committing a crime of violence that resulted in Jessica Imran’s death, of discharging a firearm while committing a crime of violence that resulted in the injury of Julie Lang, of illegally carrying a firearm without a license, and of unlawfully possessing a firearm after previously having been convicted of a felony. 

The trial justice sentenced Shelton to serve all seventeen years of his previously imposed suspended sentence, with the remaining sentences imposed for his convictions in this case to be served consecutively to those seventeen years.  On count 1 (murder of Jessica Imran), he sentenced the defendant to life in prison; on count 2 (conspiracy to murder Jessica Imran), he sentenced the defendant to ten years to serve; on count 3 (assault with a dangerous weapon within a dwelling), he sentenced the defendant to life in prison; on count 4 (conspiracy to murder Julie Lang), he sentenced the defendant to ten years to serve; on count 7 (unlawful possession of a pistol), he sentenced the defendant to ten years to serve; on count 8 (unlawful possession of a firearm), he sentenced the defendant to ten years to serve; on count 9 (causing the death of Jessica Imran with a firearm), he sentenced the defendant to a life sentence consecutive to that for count 1; and on count 10 (causing injury to Julie Lang with a firearm), he sentenced the defendant to a twenty-year sentence to be served consecutively to count 3.  The trial justice then determined Shelton to be a habitual offender, and he sentenced him to twenty-five nonparolable years to be served consecutive to all other terms of imprisonment.

On appeal, the defendant challenged the judgment of conviction and sentence on several constitutional grounds.  First, he argued that the trial justice erred when he permitted the introduction of evidence seized from Ms. Alvarez’s bedroom in violation of the United States and Rhode Island Constitutions because Ms. Alvarez’s consent for the search of her apartment was not voluntary.  Second, he contended that the trial justice erred when he ruled that the state could inquire as to the length of Shelton’s suspended sentence at the time he allegedly committed these crimes and that he further erred when he informed the jury of the length of the suspended sentence.  Finally, he challenged the term of the sentence imposed in this case as cruel and unusual under the United States and Rhode Island Constitutions, and he argued that several of the counts on which he was convicted should have been merged.

The Supreme Court affirmed the judgment of conviction.  First, the Court held that Ms. Alvarez voluntarily consented to the search of her apartment because her knowledge of the officers’ previous entry into her apartment merely represented a rationale for her providing consent.  Second, the Court held that the trial justice was wholly within his discretion under the Rhode Island Rules of Evidence when he allowed testimony and evidence about the defendant’s suspended sentence because this evidence was relevant, not unduly prejudicial, and tended to demonstrate his motive to kill Ms. Lang to prevent her from implicating him on a drug charge while he was serving a suspended sentence.  Finally, the Court held that the defendant had not preserved his claim that several counts should have been merged and also had not preserved his challenge to the term of his sentence for review and, therefore, those arguments could not be reviewed on direct appeal. Accordingly, the Court affirmed the judgment of conviction.  

State v. Leroy Robinson, No. 06-322 (March 12, 2010)

The defendant appealed from a conviction on two counts of first-degree child molestation sexual assault.  On appeal, the defendant challenged the denial of his motion to suppress the confession that he had made to a police detective; he also challenged the admission of certain testimony by the mother of the complaining witness and by the investigating detective.

 The Supreme Court upheld the trial justice’s denial of the defendant’s motion to suppress his confession.  The Court first held that the trial justice’s findings of historical fact were not clearly erroneous.  Then, the Court sustained the hearing justice’s ultimate ruling that, based on the facts in the record and the totality of the circumstances, the defendant’s confession was made knowingly and voluntarily.

The Court further held that, even if a portion of the testimony of the mother of the complaining witness did constitute inadmissible hearsay, the error in admitting it was harmless in view of the fact that it was cumulative of the complaining witness’s own testimony to the same effect.

The Court also held that, although a portion of the investigating detective’s testimony constituted inadmissible hearsay, the error in admitting that testimony was harmless as it was merely cumulative.  The Court additionally held that the admission of the challenged portion of the detective’s testimony did not violate Rule 404(b), as it was introduced to demonstrate the defendant’s lewd disposition or intent toward the complaining witness.  The Court further held that, although the trial court erred in not providing the jury a limiting instruction with respect to how it should consider the Rule 404(b) evidence, the error was harmless beyond a reasonable doubt. 

After having considered each of the defendant’s arguments on appeal, the Supreme Court affirmed the Superior Court’s judgment of conviction.

Keystone Properties v. Steven Campo, No. 08-189 (March 5, 2010)

The defendant (seller) appeals from the Superior Court’s judgment granting specific performance in favor of the plaintiff (buyer).  The seller argued to the Supreme Court that the trial justice committed reversible error by finding that the buyer remained ready, willing and able to perform a contract for the sale of real property located in Providence, Rhode Island.  Alternatively, the seller asserted that the buyer abandoned the contract by returning the deposit for the sale. 

The Supreme Court affirmed the judgment of specific performance in favor of the buyer and remanded the record to the Superior Court.  Specifically, the trial justice made credibility findings with respect to the parties that the Supreme Court declined to disturb on appeal.  The Court, noting the burden of proof required to overcome a grant of specific performance, concluded that the judgment was within the sound discretion of the trial justice.             

State v. Kevin Adefusika, No. 07-192 (March 2, 2010)

The defendant, Kevin Adefusika, appealed from his conviction by a jury in the Washington County Superior Court on one count of first-degree sexual assault and one count of second-degree sexual assault.  On appeal, the defendant contended that the trial justice committed reversible error in (1) refusing to give a certain jury instruction requested by the defendant concerning the " force or coercion" element of the first-degree sexual assault charge; (2) permitting a court reporter to read back a particular portion of the complaining witness’s trial testimony; (3) allowing a rebuttal witness to comment on the demeanor of two defense witnesses; and (4) denying defendant’s motion for a new trial.  The Supreme Court affirmed the judgment of the Superior Court, holding that (1) although he permissibly chose not to adopt the particular language requested by the defendant, the trial justice adequately instructed the jury; (2) the trial justice did not abuse his discretion in ruling upon the extent of the read-back; (3) the defendant’s objection to certain testimony by a rebuttal witness was not raised with sufficient specificity in the trial court, and was therefore waived; and (4) the trial justice neither clearly erred nor overlooked or misconceived material evidence in denying the defendant’s motion for a new trial.

In re Providence Water Supply Board's Application to Change Rate Schedules, No. 07-378 (February 26, 2010) 

This case is before the Supreme Court as a statutory petition for certiorari filed by the intervenor, the City of Providence (city), pursuant to G.L. 1956 § 39-5-1.  The city sought review of the Rhode Island Public Utilities Commission’s (PUC) decision, in Docket No. 3832, denying the Providence Water Supply Board (PWSB) a rate increase to reimburse the city for sums the city paid for PWSB’s retirees’ health-care coverage and benefits, because of the city’s oversight from the years 1997 through 2005.  The city argued that the principle against retroactive ratemaking should not apply because it should fit within the statutory exception to that principle, found statutorily in G.L. 1956 § 39-3-11.1.  Conversely, the Court was asked to affirm the PUC’s decision finding that the exception should not apply because neither the city nor the PWSB demonstrated that the amount at issue was a " loan or advance," as provided for in the statutory exception. The PUC further ruled that the city failed to meet its burden of proof with regard to the actual amount that might be reimbursed through the ratemaking process.   

This Court affirmed the report and order of the PUC.  The Court did so because the city does not qualify for the statutory exception because there was no documentation of a loan or advance and because the city merely provided an extrapolation in lieu of actual numbers for the retirees’ health-care costs. 

International Brotherhood of Police Officers, Local 569 (No. 08-328)

The plaintiff appeals from a judgment in favor of the defendant, the City of East Providence and its police department.  The then-presiding justice of the Superior Court found that the city acted properly when it discharged a police officer for non-disciplinary reasons without employing the hearing procedure required by the Law Enforcement Officers’ Bill of Rights (LEOBOR), G.L. 1956 chapter 28.6 of title 42.  The plaintiff argues that the officer’s constitutional right of due process was violated when the defendant failed to comply with the LEOBOR.

The Supreme Court affirmed the judgment, holding that the LEOBOR was wholly inapplicable to the case at bar.  The Court reasoned that the LEOBOR applies only to police officers who are under investigation or interrogation for allegations of police officer misconduct.  It is undisputed that there were no allegations of misconduct against the officer involved in this case. 

The Supreme Court also noted that, although the officer may have been entitled to a hearing under the Revised Ordinances of the City of East Providence, this issue was not before the Court. 

Jeffrey S. Washington v. State of Rhode Island, No. 07-66

The applicant, Jeffery S. Washington, appealed from a Superior Court judgment denying his applications for postconviction relief.  In 1989, a jury found him guilty of first-degree felony murder for the rape and resulting death of an elderly woman.  He unsuccessfully appealed his conviction to the Rhode Island Supreme Court in 1990.  Washington filed his first application for postconviction relief in 1998, but did not complete it until 2004.  In 2005, a hearing justice of the Superior Court denied his application.  He then filed a second application for postconviction relief, alleging discovery violations, which the hearing justice also denied.

In this consolidated appeal of his two applications for postconviction relief, Washington argued that his trial attorney, the now deceased former chief public defender of Rhode Island, rendered ineffective assistance of counsel on several grounds.  Washington contended that his trial attorney provided constitutionally deficient representation because he failed to present evidence establishing the defense of diminished capacity, because he promised the jury that Washington would take the witness stand and then advised Washington to refrain from testifying, advice that Washington ultimately assented to, and because he refused to allow Washington to exercise his right to testify on his own behalf.  Finally, Washington argued that the trial justice committed reversible error when he did not conduct a colloquy with Washington to ensure that Washington’s waiver of his right to testify was knowing, intelligent, and voluntary.

The Supreme Court held that Washington received effective assistance of counsel.  The Court reasoned that the hearing justice did not overlook or misconceive the evidence when she found that Washington’s trial attorney’s decision to forgo a diminished-capacity defense was reasonable, that it was reasonable for the attorney to advise Washington against taking the stand, and that the absence of Washington’s testimony did not prejudice his defense.  The Court also held that the trial justice did not err when he did not conduct a colloquy with Washington when he waived his right to testify, because such an inquiry is not required under Rhode Island law.  Accordingly, the Court affirmed the judgment of the Superior Court. 

Classic Entertainment & Sports, Inc. v. Scott Pemberton, No. 08-118 (February 22, 2010)

The defendant, Scott Pemberton, appealed pro se from the Providence County Superior Court’s grant of summary judgment in favor of the plaintiff, Classic Entertainment & Sports, Inc. (Classic Entertainment).  On appeal, the defendant challenged the hearing justice’s decision to grant summary judgment against him in this breach of contract and quantum meruit action. Mr. Pemberton, a professional boxer, contended that he never agreed to pay Classic Entertainment, his promoter, any proceeds from his earnings in a particular fight.  However, the hearing justice concluded that Mr. Pemberton did not prove by competent evidence the existence of a disputed issue of material fact.  The Supreme Court affirmed the judgment of the Superior Court, holding that the hearing justice did not err in granting summary judgment in favor of the plaintiff.

Champlin's Realty Associates v. Michael Tikoian et al; Town of New Shoreham v. Coastal Resources Management Council, Nos. 09-113, 09-114, 09-115 (February 18, 2010)

The Supreme Court issued a writ of certiorari to review the Superior Court’s decision in an administrative appeal from a decision of the Coastal Resources Management Council (CRMC or council) that denied the application of Champlin’s Realty Associates to extend its marina located on Block Island.  In 2003, Champlin’s filed its application for expansion with CRMC.  The Town of New Shoreham, the Block Island Land Trust, the Conservation Law Foundation, the Committee for the Great Salt Pond, and the Block Island Conservancy, opposed the application.  The CRMC chairman, Michael Tikoian, appointed a subcommittee to hold hearings on Champlin’s application and to issue a recommendation to the full council.  He appointed Paul E. Lemont, vice chairman of CRMC, as chairman of the subcommittee. 

The subcommittee held a public workshop to make findings of fact and to decide upon the recommendation to CRMC.  The subcommittee issued a recommendation with three votes in favor of a scaled-down modification of the proposal and one vote against. 

On February 28, 2006, CRMC met to consider the record, evidence, and the subcommittee’s recommendation, as well as Champlin’s argument that CRMC should adopt the recommendation.  Five CRMC members voted to approve the subcommittee’s recommendation, while five members, including Lemont and Tikoian, voted against adoption.  The tie vote resulted in a rejection of the recommendation.  On July 5, 2006, CRMC issued its written decision denying Champlin’s application.  That same day, the five members who voted in favor of adopting the subcommittee’s recommendation released " Findings of Fact of the CRMC Members in Support of the Subcommittee Recommendation."  

On March 23, 2006, Champlin’s filed a complaint in Superior Court through which it sought judicial review of CRMC’s decision rejecting its application.  Based on G.L. 1956 § 42-35-15(f), Champlin’s filed a motion requesting an evidentiary hearing before the trial justice to determine the existence of any procedural irregularities during the course of the CRMC proceedings.  CRMC objected to the motion for an evidentiary hearing and argued that the evidentiary hearing inevitably would intrude on the mental processes of the agency members in violation of their quasi-judicial immunity.  The trial justice granted Champlin’s motion for the evidentiary hearings, with the caveat that the mental processes of the agency members were strictly off-limits.  On January 2, 2008, after the hearings were concluded and after this Court issued Arnold v. Lebel, 941 A.2d 813 (R.I. 2007), a case that proscribed ex parte contacts at the agency level, the trial justice issued a show-cause order that asked the parties to " show cause why Plaintiff’s appeal should not be granted based on the likelihood that Arnold prohibited the type of off the record communications" revealed by the evidentiary hearing.

After hearing witness testimony at the numerous evidentiary hearings and the show-cause hearing, the trial court concluded that the CRMC members " did not appreciate the quasi-judicial nature of their roles or the prohibition against ex parte communications."   As a result, the trial justice found that because of their bias, three members should not have participated in the various proceedings.  The trial justice found that Champlin’s substantial rights had been violated by an off-the-record alternate plan and the bias of two CRMC members. 

In an effort to avoid further delay, however, the trial justice declined to remand the matter to CRMC.  Rather, she subtracted the votes of the three CRMC whom she found to be biased and recalculated the vote to a four to three vote in favor of adopting the subcommittee’s recommendation.  Accordingly, she implemented the " decision" of the CRMC members supporting the subcommittee’s recommendation.

The Supreme Court held that the trial justice did not abuse her discretion when she granted the motion for an evidentiary hearing to determine whether procedural irregularities occurred at the agency level, despite the possibility that the hearing might stray into the mental processes of the agency members.  The Court held that the existence of the alternate plan was a sufficient ground to support the grant of the hearing to investigate alleged procedural irregularities.  Nonetheless, the Supreme Court determined that the hearings themselves repeatedly violated the quasi-judicial immunity of the CRMC members.  The Court held that agency adjudicators enjoy immunity from rendering testimony as to their mental processes in reaching decisions, just as judicial officers do.

The Supreme Court concluded that the request for the creation of an alternate, 100-foot plan and the chair’s contact with the Governor’s office constituted ex parte contacts within the meaning of Arnold because each represented an off-the-record communication concerning the merits of an appeal that the parties were not given an opportunity to respond to.  However, the Court held that that the clear remedy for an Arnold violation is remand to the agency for supplementation of the record with the ex parte communication to allow the parties to appropriately respond and to conduct appropriate cross-examination.

The Court afforded deference to the trial justice’s findings of bias and concluded that the trial justice’s disqualification of the chairman and another member from participating in proceedings regarding Champlin’s application was supported by legally competent evidence.  However, the Court held that the trial justice improperly relied on the vice chairman’s mental processes as divulged during the evidentiary hearings, and thus her disqualification of the vice chairman was in error because insufficient legally competent evidence remained to support his disqualification. 

As for a remedy, the Supreme Court held that the trial justice erred when she subtracted the disqualified votes and elevated the subcommittee recommendation to a CRMC decision, because the subcommittee is not authorized to render a decision for CRMC.  Further, the Court rejected the trial justice’s conclusion that remand to the CRMC was not warranted because of the purportedly unreasonably delay occasioned by the creation of a viable CRMC to hear the matter.  The Supreme Court concluded that the time taken to resolve Champlin’s application is not unreasonable in light of the potential environmental impact an expansion will have.  Therefore, the Court held that, in the interest of justice, the case should be returned to the Superior Court with an order that that tribunal remand the matter to CRMC as that agency currently is constituted so that the hearing on Champlin’s application may be reopened and the record expanded to include ex parte contacts and be subject to cross-examination.  Accordingly, the Court affirmed the judgment of the Superior Court in part, reversed in part, and remanded to the Superior Court with instructions to remand to CRMC for further proceedings consistent with its opinion.   

The People's Credit Union v. Pauline Berube, No. 07-104 (February 18, 2010)

The defendant, Pauline Berube, appealed pro se from a Superior Court grant of partial summary judgment in favor of the plaintiff, The People’s Credit Union.  The partial summary judgment grant awarded The People’s Credit Union declaratory relief and invalidated a recorded deed from Berube to The People’s Credit Union that The People’s Credit Union argued it did not accept.  The People’s Credit Union introduced an affidavit from an employee that attested to its refusal to accept this recorded deed.  Berube said that The People’s Credit Union accepted delivery of the deed, but she failed to come forward with any evidence to support her position.  The motion justice ruled that because Berube was unable to offer any evidence that contradicted The People’s Credit Union’s affidavit, there was no genuine issue of fact about whether The People’s Credit Union accepted the deed.  Judgment as a matter of law was entered because acceptance of a deed is an element of an effective conveyance of a deed. 

On appeal, the Supreme Court affirmed the Superior Court’s judgment.  The Court applied the same standard as the motion justice, and concluded that there were no genuine issues of material fact because Berube failed to contradict with competent evidence The People’s Credit Union’s affidavit.  In the absence of any genuine issue of fact, The People’s Credit Union was entitled to judgment as a matter of law on its claim for a declaratory judgment.  In doing so, the Court held that effective conveyance of a deed requires not only the delivery of a deed, but also the acceptance of the deed by the grantee.  The Court remanded the case to the Superior Court for resolution of the remaining claims. 

In re Tory S., No. 08-76 (February 15, 2010)

The respondent, the biological father of minor child Tory S., appealed pro se from a Family Court decree terminating his parental rights pursuant to G.L. 1956 § 15-7-7(a)(4), on the grounds that he had abandoned or deserted the child.  The respondent contended on appeal that he had not abused Tory, or any other child, and that the child’s mother had lied in order to obtain a restraining order against him.  The Supreme Court held that the Family Court justice did not err in terminating his parental rights. 

The Supreme Court further held that the Family Court justice’s finding of abandonment by clear and convincing evidence was supported by extensive evidence on the record that the respondent had neither contacted nor attempted to contact the minor child for a period in excess of the six-month statutory requirement, despite his ability to do so.  The Court noted that the respondent’s incarceration during the majority of the child’s life did not excuse his lack of effort to make contact with the child.

Accordingly, the decree of the Family Court was affirmed. 

State v. Jose Rivera, No. 08-100 (February 12, 2010)

The defendant, Jose Rivera, appealed from a Superior Court judgment of conviction on two counts of first-degree sexual assault, four counts of second-degree sexual assault, and one count of simple assault.  On appeal, the defendant contended that: (1) the complaining witnesses were not competent to testify at trial; (2) the trial justice erred in denying the defendant’s motion to sever the trial counts; (3) the denial of the defendant’s motion for a new trial was an abuse of discretion; (4) the trial justice erred on numerous evidentiary rulings; and (5) it was error for the trial justice to permit the state to lead the complaining witnesses during direct examination.  The Supreme Court affirmed the Superior Court judgment.

The Supreme Court held that the trial justice did not abuse his discretion in finding the three complaining witnesses competent to testify.  The complaining witnesses in the present case evinced their ability to observe, recollect, communicate, and appreciate the necessity of telling the truth.

The Supreme Court also discerned no abuse of discretion in the trial justice’s denial of the defendant’s motion to sever because the counts against the defendant were similar in character, and they were straightforward, simple, and distinct.  Furthermore, the Court did not overturn the trial justice’s denial of the motion to sever because the defendant was not substantially prejudiced.

The defendant further argued that the trial justice erred in denying his motion for new trial because the evidence presented at trial was not legally sufficient, and errors of law were made during the trial.  Specifically, the defendant averred that his motion for new trial should have been granted because (1) the prosecutor asked questions that implied the defendant assaulted a complaining witness outside of the dates designated in the bill of particulars, (2) the defendant was not allowed to present evidence about a complaining witness’s promiscuity, (3) the defendant was not allowed to present evidence about a complaining witness’s prior false accusations of sexual assault, and (4) the trial justice made numerous erroneous evidentiary rulings.

          The Court was satisfied that the trial justice did not abuse his discretion in denying the motion for new trial.  The trial justice independently assessed the credibility of the witnesses and agreed with the jury that the complaining witnesses were credible, and that the defendant was not credible.  Furthermore, the Court discerned no merit in the defendant’s argument concerning errors of law as the defendant put forth in his motion for new trial.  The Court held that the state’s questioning about events outside the dates on the bill of particulars was permissible because it constituted proper impeachment questioning.  The Court also noted that the trial justice properly denied evidence suggesting a complaining witness’s promiscuity and a prior false accusation of sexual assault.  Evidence suggesting a complaining witness’s promiscuity is precluded by the rape shield statute; because the defendant never proffered evidence that the prior sexual assault did not occur, the trial justice was free to find that the prejudicial effect of asking such a question outweighed its probative value and, as a result, to preclude such questioning.  The Court also held that the trial justice correctly denied the motion for new trial after considering the other evidentiary issues that the defendant presented.

          Finally, the defendant contended that the trial justice erred by declining to deny the state’s motion to lead the complaining witnesses, and by specifically allowing two leading questions.  The Court was satisfied that the trial justice did not abuse his discretion because one of the colloquies did not contain a question, and the second contained a permissible question, assuming that it was, in fact, leading.

UAG West Bay AM, LLC et al v. Nicholas E. Cambio et al, No. 08-132 (February 5, 2010)

The defendant appealed from an order denying its motion for an extension of time to file a notice of appeal and dismissing its notice of appeal.  The defendant contended that its appeal was timely because the Superior Court clerk failed to properly enter the judgment and failed to provide the parties with notice of the entry of judgment from which they wished to appeal.  It further argued that, even if its filing of the notice of appeal was not timely, it had demonstrated excusable neglect for any delay.

The parties to this case signed a document entitled " Final Judgment," that incorporated the hearing justice’s grant of partial summary judgment in favor of the plaintiffs as well as other issues resolved by the parties. The hearing justice then signed the judgment in the presence of attorneys representing all parties.  The defendant’s attorney then asked the plaintiffs’ counsel to file the judgment with the clerk’s office and to provide him with a fully executed copy of the document.  The plaintiffs’ attorney did so that same day.  The judgment bore a stamp indicating that it was filed with the clerks’ office on December 10, 2007, but it was not signed by the clerk.  In fact, the judgment was not signed by the clerk until December 11, 2007, although the docket indicates that it was entered on December 10.  The clerk’s office never sent any party a notice of entry of judgment.

On January 4, 2008, the defendant filed an emergency motion for a brief extension of time to file its notice of appeal.  In its motion, the defendant asserted that there was excusable neglect justifying an extension of time within which to file an appeal. Affidavits attached to the emergency motion stated that the attorney of record had completely delegated responsibility for the filing of the notice of appeal to his associate and that the latter failed to make the filing in a timely manner due to serious illness. 

Although Rule 77(d) of the Superior Court Rules of Civil Procedure generally requires the clerk to serve notice of entry of judgment by mail upon each party not in default for failure to appear, the clerk’s failure to comply with this requirement does not void the judgment.  Rule 77(d) also authorizes a party to give notice of the entry of judgment by sending a copy of the judgment by mail to his or her adversary.  In this case, an attested copy of the final judgment bearing both the hearing justice’s signature and the December 10, 2007 time-stamp of the clerk’s office was mailed by opposing counsel to the defendant’s attorney of record on December 10, 2007.  Moreover, the defendant’s attorney of record manifestly believed that the appeal period had begun to run (or would soon begin to run) because he asked his associate to file a notice of appeal even before receiving the copy. Under the circumstances presented in this case, the clerk’s failure to mail the parties notice of the entry of judgment did not invalidate that judgment.  In addition, the clerk’s erroneous recording of the date of entry of judgment on the docket under Rule 79(a) of the Superior Court Rules of Civil Procedure did not invalidate the judgment.

Article I, Rule 4 of the Supreme Court Rules of Appellate Procedure requires an appellant to file its notice of appeal within twenty days of the entry of judgment.  Relief from the repercussions of failure to comply with procedural requirements will not be granted in absence of excusable neglect.  In the instant case, the attorney of record was lead counsel in all the proceedings in the Superior Court.  A reasonably prudent attorney would have confirmed that his or her associate had actually filed the notice of appeal within the time period, or, discovering that he or she was incapable of doing so, assumed responsibility himself or herself.  The Court did not consider the attorney of record’s assertion that he was extremely busy in December 2007 as a sufficient basis for finding excusable neglect.  The order of the Superior Court was therefore affirmed.

William P. McGloin v. Trammellcrow Services, Inc., No. 07-63 (February 5, 2010)

This case came before the Supreme Court on the employee’s request for issuance of a writ of certiorari to review a final decree of the Appellate Division of the Workers’ Compensation Court.  The Appellate Division had affirmed the decision of a trial judge dismissing the employee’s request for workers’ compensation on the grounds that his injury was not work-related and did not arise out of, or in the course of, his employment.  The Supreme Court reversed the final decree of the Appellate Division. 

The Appellate Division correctly noted that the longstanding going-and-coming rule normally operates to bar compensation for an injury that occurs while an employee is going to or coming from the workplace.  The Appellate Division also correctly recognized that the Court’s precedent requires that to establish a causal connection, an employee must demonstrate that the accident took place (1) within the period of employment; (2) at a place where the employee may reasonably be; and (3) while he or she is reasonably fulfilling the duties of the employment or doing something incidental thereto.  If these three criteria are met and the nexus is established, the employee will be entitled to receive workers’ compensation benefits.  

The Court concluded that, under the facts of this case and in light of the nature of his employment, the employee’s injury must be considered incidental to his job duties.  Having satisfied the criteria for establishing a nexus between his injury and his employment, the employee was entitled to workers’ compensation benefits.

State v. Robert J. Cardin, No. 05-0079 (February 5, 2010)

The defendant was convicted of shoplifting in violation of G.L. 1956 § 11-41-20 after a trial in District Court.  The defendant appealed the verdict and the case was tried de novo before a jury in Superior Court.  The jury rendered a guilty verdict, and the defendant was sentenced to six months probation and fifteen hours of community service.  The defendant appealed from this judgment of conviction, averring that the trial justice erred in (1) denying his motion for judgment of acquittal, and (2) improperly instructing the jury.

Section 11-41-20(b)(3) provides that an individual is guilty of shoplifting if he or she " [t]ransfer[s] any merchandise displayed, held, stored or offered for sale in a retail mercantile establishment from one container to another in an attempt to purchase or purchase the merchandise personally or in consort with another at less than the full retail value with the intention of depriving the merchant of all or any part of the full retail value of the merchandise[.]"    

The defendant argued that the state failed to prove that the retailer was deprived of any " retail value" of its merchandise because it did not present any evidence establishing the value of the shoplifted item.  The Court held that, viewing the evidence in the light most favorable to the state, sufficient evidence was presented to support a guilty verdict.  Moreover, the fact that only a photograph of the box was offered into evidence did not warrant a judgment of acquittal because that evidence, together with the testimony of the retailer’s employee, provided sufficient evidence to support a jury verdict of guilt beyond a reasonable doubt.

The defendant also argued that the trial justice erred by instructing the jury only in the language of subsection (b)(3) of § 11-41-20 even though the language of the criminal complaint against the defendant alleged that he violated subsections (1) and (3) of § 11-41-20(b).  Although the complaint did not specify a violation of either subsections (1) or (3) of the shoplifting statute, its language clearly tracked § 11-41-20(b)(3).  The Court was satisfied, therefore, that the trial justice’s jury instruction, in which she quoted the language of § 11-41-20(b)(3), was correct.

 State v. Richard V. DiCarlo, No. 08-102 (February 1, 2010)

The defendant in this case was found guilty by a Providence County jury of three counts of second-degree child molestation sexual assault.  He then moved for a new trial, which motion was denied by the trial justice.  He was thereafter sentenced to twenty years of imprisonment, with eight years to serve and the remainder suspended, with probation.  The defendant then appealed to the Supreme Court, contending that the trial justice erred in denying his motion for a new trial.

The Supreme Court affirmed the trial justice’s denial of defendant’s motion for a new trial, holding that the trial justice undertook the appropriate analytical process in determining that a new trial was not warranted.  The Supreme Court accorded due deference to the several credibility determinations made by the trial justice with respect to the witnesses and evidence presented at trial.  After reviewing those credibility determinations and the analytical process employed by the trial justice, the Supreme Court concluded that there was no basis in the record for ruling that the trial justice was either clearly wrong or that he misconceived or overlooked material evidence in denying the defendant’s motion for a new trial. 

Accordingly, the judgment of conviction was affirmed. 

Curry v. Andrew Curry, No. 07-347 (January 26, 2010)

Andrew Curry appealed from the Family Court’s equitable distribution of his and his former spouse Dorothy Curry’s marital property.  Dorothy cross-appealed.  Andrew argued that the trial justice abused her discretion when she failed to compensate him adequately for certain actions taken by Dorothy that substantially reduced the marital estate and injured Andrew financially, when she assigned Dorothy an interest in a parcel of real estate, and when she found another parcel of real estate to be marital property.  In her cross-appeal, Dorothy argued that the trial justice abused her discretion when she ordered that Dorothy honor her guarantee of a loan that the parties obtained during their marriage, despite Dorothy’s argument that her bankruptcy discharged her of any responsibility for the loan.  Additionally, Dorothy argued on appeal that the trial justice erred when she twice declined to revalue the real property in the marital estate.

After the trial justice determined the parties’ marital assets, she considered the factors of Rhode Island’s equitable distribution statute codified at G.L. 1956 § 15-5-6.1 and ordered that the parties’ marital property be divided equally.  The trial justice ruled that Dorothy’s discharge in bankruptcy did not affect her obligations to Andrew and, therefore, Dorothy must reimburse Andrew for her share of the loan that the parties had guaranteed.  Additionally, the trial justice ruled that Dorothy was entitled to a share of an interest in real estate included in the marital property despite her discharge in bankruptcy.  She declined to update the value of the marital property prior to issuing her bench decision or thereafter because both parties failed to submit their appraisals in a timely fashion. 

The Supreme Court held that the trial justice did not abuse her discretion when she determined the parties’ marital assets and when she distributed them on an equal basis.  Further, the Court held that the trial justice did not err when she ruled that Dorothy’s discharge in bankruptcy did not eliminate her obligations to Andrew nor did it preclude an assignment of her share of the marital property to her.  Finally, the Court held that the trial justice did not err when she declined to revalue the property after trial because no circumstances existed that compelled deviation from the usual time of valuation, when all equitable issues were resolved.  Accordingly, the Supreme Court affirmed the judgment of the Family Court.       

  Catherine Goetz v. Luvraj, LLC, et al, No. 08-270 (January 26, 2010)

The defendants appeal from the Superior Court’s entry of a Minnesota judgment pursuant to the Uniform Enforcement of Foreign Judgments Act in favor of the plaintiff.  The defendants argued to the Supreme Court that the Minnesota District Court lacked personal jurisdiction over the parties such that the entry of the foreign judgment in accordance with the Full Faith and Credit Clause of the United States Constitution was improper.

The plaintiff, a Minnesota resident, entered into a contract to purchase the defendants’ internet-based business, which sold puzzles to customers in all fifty states, including Minnesota.  At the time, the defendants were a Massachusetts limited liability company and a Massachusetts resident, respectively.  The parties negotiated the terms of the sale in a series of more than 100 emails, telephone calls, and letters sent to and from Minnesota.  The plaintiff ultimately traveled to Massachusetts to tender $100,000 and sign the sales contract, which had a Minnesota choice-of-law clause.

After the purchase, the plaintiff alleged that the defendants misrepresented the value of and costs associated with the business, and filed suit for breach of contract, misrepresentation, and fraud.  Both the defendants, who had recently established residency in Rhode Island, were served properly with process in this state.  The defendants failed to enter appearance or file a motion contesting personal jurisdiction and were defaulted in the Minnesota District Court. 

The Supreme Court affirmed the entry of the Minnesota judgment, holding that the hearing justice properly found that Minnesota had personal jurisdiction over the defendants.  The Court, applying Minnesota law, reasoned that the defendants’ quantity of contacts, quality of contacts, and connection with the claim supported Minnesota jurisdiction, and that the state had an interest in providing a forum for the case. 

Additionally, the Court held that, while defending a lawsuit in Minnesota may have been inconvenient for the defendants, that fact alone cannot help the defendants avoid personal jurisdiction. 

State v. Gary Letts, No. 07-324 (January 26, 2010)

Gary Letts appealed his misdemeanor conviction for obtaining money by false pretenses.  Letts’s conviction arose from a dispute over a paving contract in which he accepted a $400 deposit but never completed the contract.  The parties appeared for oral argument on December 2, 2009, based on a Supreme Court order that they show cause why the issues raised in this appeal should not summarily be decided without further briefing or argument.  After considering the record, the memoranda submitted by the parties, and the oral arguments advanced by each, the Supreme Court affirmed the Superior Court’s judgment of conviction.

On appeal, Letts argued that the evidence at trial failed to establish that he intended to cheat or defraud when he accepted the $400 deposit. He also contended that the trial justice both misconceived the evidence and drew unreasonable inferences from the evidence when he concluded that Letts accepted the $400 deposit under false pretenses.  The state argued that the trial justice correctly found that Letts employed a false pretense when he said that he could complete the paving job within a specific time period in order to obtain $400, because Letts knew that because of a backlog of paving jobs and adverse weather conditions that performance within the specified period was impossible.   

After reviewing the record, and after giving due deference to the trial justice’s factual conclusions, the Supreme Court held that the trial justice did not err when he found that Letts misrepresented his intention to perform his contract.  The Supreme Court concluded that the trial justice’s findings of fact and his conclusion about whether Letts obtained the $400 under false pretenses were not clearly wrong.  Additionally, the Supreme Court held that sufficient evidence existed in the record to support these conclusions because in light of the large backlog of jobs, and the poor weather conditions at the time of contracting, the trial justice could conclude that Letts deliberately misrepresented his intention to perform the agreed upon work.  Similarly, the Supreme Court held that the trial justice did not err when he found that Letts’s " intent to cheat or defraud" was established when he deposited the $400 check after intentionally using false pretenses to obtain the check from the Apontes.  The Supreme Court affirmed the Superior Court’s judgment of conviction and remanded the case to the Superior Court. 

In re Application for Registration by the Law Offices of James Sokolove, LLC, No. 08-151 (January 21, 2010)

The petitioners, D’Oliveria & Associates, P.C., DeLuca & Weizenbaum, Ltd., and the Law Offices of David Morowitz[1] (collectively petitioners), brought this objection to the application of the respondent, James Sokolove (Sokolove), to register and practice law as a Rhode Island limited liability entity (Sokolove Law, LLC), in accordance with Article II, Rule 10 of the Supreme Court Rules for the Admission to Practice Law.  The petitioners urge us to deny Sokolove’s application because they contend that the proposed Sokolove Law, LLC, will provide a referral system and would be inappropriate under our Rules of Professional Conduct.  Further, they contend that Sokolove improperly began to advertise before Sokolove Law, LLC, was properly approved as a limited liability entity.  Conversely, Sokolove asserts it is improper to deny a LLC application based on alleged violations of the Rules of Professional Conduct and further, that Sokolove Law, LLC’s application comports to Rule 10.  Because we agree with Sokolove’s contentions, we approve his application to become a limited liability corporation.  We also take this opportunity to review our well-established rules addressing fee-sharing and referrals and note that we expect all attorneys within the state to follow them accordingly.

State v. Kenneth S. Rice, No. 07-201 (January 20, 2010)

The defendant, Kenneth S. Rice, appealed from a Superior Court order denying a motion to correct sentence.  The defendant claimed that his judgment of conviction and commitment erroneously recited that he was to serve fifty years on two first-degree child molestation sexual assault counts.  Mr. Rice claimed that the trial justice sentenced him orally to five years on each count.  To support this contention, the defendant pointed to the transcript of the trial justice’s announcement of sentencing. 

The Court affirmed the trial justice’s denial of the defendant’s motion, noting that a number of factors pointed to the conclusion that the trial justice did in fact orally pronounce a sentence of fifty years.  The Court also observed that previous statements made on behalf of the defendant by his attorney, in the context of an earlier motion pursuant to Rule 35 of the Superior Court Rules of Criminal Procedure, amounted to judicial admissions that the correct sentence was fifty years on each count.

State v. Victor H. Gonzalez, No. 07-2 (January 13, 2010)

This case came before the Supreme Court for review pursuant to the Court’s having issued a writ of certiorari to the petitioner, the defendant Victor H. Gonzalez; Mr. Gonzalez sought to vacate the judgment of conviction on two counts of second-degree child molestation sexual assault entered in the Superior Court after a jury trial.  Before this Court, the defendant argued that the hearing justice erred when she denied his pretrial motion to suppress his confession, in which he admitted to the Pawtucket police that he had engaged in sexual contact with his girlfriend’s minor daughter.  The defendant alleged that, before he made that confession, an investigator employed by the Department of Children, Youth and Families had threatened to take away his child and his girlfriend’s children from their home if he did not go to the police and make a statement. 

The Supreme Court affirmed the judgment of conviction.  The Court held that the hearing justice’s finding of historical fact to the effect that no such threat had been made by the investigator was not clearly erroneous.  After a review of the entire record with respect to the voluntariness issue, the Court sustained the hearing justice’s ruling that the defendant confessed voluntarily and that the circumstances did not call for suppression of the confession.

Sharie Paul v. Marvin Lester Paul, No. 08-222 (January 11, 2010)

The defendant, Marvin Lester Paul (Marvin), appealed from a Family Court postjudgment order in favor of his former wife, Sharie Paul (Sharie, which directed him to immediately list for sale three properties contained in a disputed paragraph of the parties’ Marital Settlement Agreement. 

Immediately prior to the hearing before the Family Court on the parties’ complaints for divorce, the parties completed a Marital Settlement Agreement (agreement).  In their haste, a previously typewritten draft of the agreement was modified with handwritten deletions and additions.  Significantly, the agreement required Marvin to pay to Sharie $500,000 as an equitable distribution of their marital estate.  Additionally, the Agreement set forth in detail how Sharie would receive the majority of proceeds from the sale of any property enumerated in the agreement to be put toward the satisfaction of the $500,000.  Further, Sharie held a security interest over the properties and, in the event that the properties had not been sold by 2012 and she had not received the full $500,000, she would be able to foreclose on any remaining properties.  

However, handwritten modifications made to a particular paragraph of the Agreement led to disagreement between the parties over whether three of the enumerated properties received an exemption from listing for sale, as Marvin argued, or whether they received only a one-year deferment from listing for sale and thus should have been listed for sale after April 2, 2008, as Sharie contended.  At the crux of the dispute was the placement of a single handwritten punctuation mark after an abbreviation for the state of Rhode Island.  Marvin argued that the mark was a period indicating that the paragraph consisted of two sentences, while Sharie argued that the mark was simply an abbreviation symbol. 

The Family Court justice ruled that the punctuation mark rendered the paragraph ambiguous and construed the paragraph as requiring the immediate listing for sale of the three disputed properties.  He so ruled because he found that Marvin’s construction was not the most equitable because it would unfairly place him in total control of the properties’ sale and, in light of the possibility of foreclosure, was at odds with the parties’ intent as reflected in their agreement that the sale of the enumerated properties was meant to serve as the " mechanism" through which to generate the $500,000 that Marvin agreed to pay Sharie.

On appeal, Marvin argued that the Family Court justice erred when he ruled that the Agreement’s paragraph was ambiguous and that the Family Court justice abused his discretion when he found that Sharie’s interpretation of the paragraph was the most equitable.  The Supreme Court held that the Family Court justice did not err because the paragraph was reasonably susceptible to two different constructions because of the placement of the punctuation mark and was therefore ambiguous.  The Court further held that the trial justice did not overlook or misconceive the relevant evidence when he ruled on the most equitable construction of the paragraph, and therefore did not abuse his discretion when he declined to adopt Marvin’s interpretation of the paragraph as the most equitable.  Accordingly, the Court affirmed the order of the Family Court.    

  Progressive Northern Insurance Company v. Dennis Lyden, No. 07-217 (January 8, 2010)

Dennis Lyden appealed from a Superior Court judgment confirming an arbitration award in favor of Progressive Northern Insurance Company (Progressive).  Lyden, an insured of Progressive, was injured in a car accident and alleged that his damages exceeded what he collected from the tortfeasor’s insurance carrier.  Lyden brought an underinsured claim against his own carrier, and the matter went to arbitration upon Lyden’s demand.  The attorney who represented Lyden in his third-party claim against the tortfeasor referred the arbitration of the claim with Progressive to another attorney.  The matter could not be settled through arbitration and the attorney returned the file to the referring attorney’s office and advised him of the lack of settlement.  The arbitrator issued an award that found that Lyden was not entitled to compensation from Progressive. 

Progressive’s insurance policy contained a statutorily required provision that says that an arbitrator’s award is binding against the parties unless " either party reserves his or her right to a jury trial by giving notice, by certified mail return receipt requested, to the other party or parties and to the arbitrator within sixty (60) days of the decision."   No reservation of this right was provided within sixty days of the arbitrator’s decision.  Subsequently, Progressive sought confirmation of the arbitrator’s award under G.L. 1956 § 10-3-11 in Superior Court.  In response to the motion to confirm, Lyden filed an objection, arguing that counsels’ failure to reserve his right to a trial within sixty days of the award " was the result of the neglect of counsel and constitutes ‘excusable neglect’ as defined by Rule 60(b) of the Rules of Civil Procedure."   Rule 60(b)(1) of the Superior Court Rules of Civil Procedure allows a court to relieve a party " from a final judgment, order, or proceeding for * * * excusable neglect."  The Superior Court granted Progressive’s motion to confirm the arbitration award on the grounds that the inaction of the two attorneys because each " assumed" that the other would preserve the right to litigate the matter did not rise to the level of excusable neglect.

On appeal, Lyden argued that the trial justice abused his discretion when he granted the motion to confirm and rejected Lyden’s argument that he should be granted relief from his failure to timely reserve the right to a jury trial on the ground of his attorneys’ excusable neglect under Rule 60(b)(1).  In response, Progressive argued that Rule 60 does not apply because the arbitration at issue was heard outside the purview of the Court and was strictly governed by the arbitration provision of the insurance contract.

The Supreme Court held that Rule 60 did not apply because no final judgment or order had been entered when Lyden sought relief from the consequences of his untimely filing of a reservation of his right to a jury trial.  Therefore, the Court held that Lyden was contractually bound to the arbitrator’s award under the insurance policy.  Accordingly, the Court affirmed the judgment of the Superior Court confirming the arbitrator’s award.   

State of Rhode Island v. Jose Pagan, No. 03-632 (December 21, 2009)

The defendant, Jose Pagan, appealed from his conviction by a jury in the Washington County Superior Court on a charge of breaking and entering with felonious intent.  On appeal, the defendant contended that the hearing justice erred when he denied the defendant’s motion to suppress an incriminating statement made to a detective at the West Hartford, Connecticut police station.  The defendant asserted that the incriminating statement was the fruit of an illegal arrest by the police in West Hartford; he contended that the prosecution had failed to prove at the suppression hearing that the Connecticut warrant for his arrest was valid.  The Supreme Court affirmed the judgment of the Superior Court, holding that the hearing justice did not err in finding that the defendant’s arrest was legal.

Cayetano Giron et al v. Jane F. Bailey et al, No. 08-179 (December 18, 2009)

Jane Bailey, the owner of residential rental property, appealed from a Superior Court judgment in favor of her tenants, Cayetano and Robin Giron.  The Girons’ claims against Bailey emanate from Cayetano’s fall from a second-floor porch to the street after the porch railing collapsed.  The Girons alleged that on September 30, 1999, Bailey " negligently and recklessly failed to exercise proper due care to maintain the common areas" and that Cayetano Giron tumbled from the second-floor porch and suffered injury " due to defective railings and dangerous conditions."

At trial, Bailey argued that she was entitled to judgment as a matter of law pursuant to Rule 50 of the Superior Court Rules of Civil Procedure because the Girons had failed " to introduce expert testimony that the railing was unreasonably dangerous or defective or that [Bailey] should have known that the railing was unreasonably dangerous or defective."   In response, the Girons argued that expert testimony was not necessary to determine whether the railing was defective, because the common knowledge of the jurors would enable them to conclude that the condition of the railing represented a danger.  The trial justice denied Bailey’s Rule 50 motion, submitted the evidence for the jury’s consideration, and the jury returned a verdict in favor of the Girons.

On appeal, Bailey renewed her argument that the Girons could not prove that Bailey’s failure to maintain the porch railings was the proximate cause of Cayetano’s fall and resulting injuries, because absent expert testimony, a jury could not determine for itself whether a properly maintained railing would have prevented Cayetano’s fall, given the force of Cayetano’s impact.

The Supreme Court affirmed the trial justice’s denial of Bailey’s Rule 50 motion.  The Court held that sufficient evidence was introduced to establish that Bailey breached her duty to her tenants when her agent failed to repair the porch’s railing and floorboards after receiving actual notice of their unsafe condition.  Further, the Court held that the plaintiffs also introduced sufficient evidence for a jury to reasonably conclude that Bailey’s breach of the standard of care she owed Cayetano Giron was the proximate cause of Cayetano’s fall from the second-floor porch to the street.  Ultimately, the Court concluded that expert testimony was unnecessary because the jury was not speculating about whether Bailey’s breach of her duty of care was the proximate cause of Cayetano Giron’s injuries.

Nilsa Rodrigues (a/k/a Juana Rodriguez) v. State of Rhode Island, No. 07-345 (December 18, 2009)
 

The applicant appeals from a denial of her application for postconviction relief in the Superior Court.  Among the issues on appeal, the applicant asserted that the original plea colloquy, which took place twelve years ago in Superior Court, was constitutionally defective because her guilty plea was neither knowing, voluntary, nor intelligent.  The applicant also argued that she was deprived of her Sixth Amendment right to effective assistance of counsel.  She asserts that her court-appointed attorney failed to investigate her case and additionally failed to inform her that by pleading guilty, she could face immigration consequences in the future.

The Supreme Court affirmed the denial of postconviction relief on both grounds.  The Court reasoned that the original trial justice’s plea colloquy was not constitutionally defective.  The trial justice made an on-the-record determination that the applicant’s plea was both voluntary and intelligent; moreover, the applicant admitted her guilt no less than four times during the colloquy.

Additionally, the Court held that the applicant’s constitutional right to effective assistance of counsel was not violated.  The Court reasoned that the applicant’s attorney acted appropriately, and was able to negotiate a relatively lighter sentence for the charged offenses than she otherwise would have received.

Finally, the Court held that the applicant’s counsel was not ineffective for failing to inform her of the potential immigration consequences of her plea; particularly in light of the fact that the applicant was made aware of the plea’s potential consequences from information written on the plea sheet. 

Nicholas T. Long and Julianne Ricci, individually and on behalf of a class of persons similarly situated v. Dell, Inc., et al. No. 2007-346 (December 14, 2009)

The plaintiffs, individually and on behalf of a yet-to-be-certified class of persons similarly situated filed a class-action lawsuit in Superior Court alleging violations of the Rhode Island Deceptive Trade Practices Act (DTPA) under G.L. 1956 chapter 13.1 of title 6, as well as common-law negligence. The defendants and the tax administrator for the State of Rhode Island, as intervenor, sought common-law certiorari to review the denial of a motion to dismiss for lack of subject-matter jurisdiction. The defendants and the tax administrator asserted that this is a taxation issue and plaintiffs should have exhausted their administrative remedies with the Division of Taxation, followed by an appeal to the Sixth Division District Court, in accordance with G.L. 1956 § 44-19-18. The plaintiffs, conversely, assert that the Superior Court had exclusive jurisdiction in accordance with § 6-13.1-5.2(a) because this was a claim for violation of the DTPA.

The Supreme Court affirmed the order finding that the deceptive trade practice allegation and negligence claim, were properly brought before the Superior Court under the subject-matter jurisdiction granted to it through the DTPA. The Court reasoned that the gravamen of the plaintiffs’ complaint was that the deceptive trade practice at issue alleged that the defendants illegally collected taxes on their products.
 

Michael Medeiros v. Laura Sitrin et al. No. 2008-278-Appeal (December 11, 2009)

The plaintiff appealed from an entry of judgment as a matter of law in favor of the defendants, Ronald Ford and the City of Newport. The Supreme Court determined that the motion for judgment as a matter of law was properly granted and affirmed the judgment of the Superior Court.

The plaintiff sustained an injury at Rogers High School in Newport, RI, in a scuffle with two other students after the plaintiff arrived late to his class. The class was held both in a laboratory and an adjoining classroom, and it was necessary to travel through the laboratory to reach the classroom. At the time of the incident, the teacher, Ford, was in the classroom taking attendance, and the three students, including the plaintiff, were alone in the laboratory. One student tried to grab something from the plaintiff’s hand while the other student jumped on the plaintiff’s back, causing him to lose his balance and fall. The incident among the students lasted just seconds, and Ford responded immediately after hearing the plaintiff fall.

The plaintiff argued on appeal that the trial justice erred when he granted the defendants’ motion for judgment as a matter of law. The plaintiff contended that a reasonable jury could find that Ford had breached his duty to supervise his students when he left the laboratory unattended to take attendance and distribute materials in the classroom. To support this argument, plaintiff relied on Ford’s testimony about his long-standing classroom practices, the Rogers High School Teacher’s Handbook’s directive for teachers to supervise students " at all times," and several cases from other jurisdictions where teachers were found to have breached their duty to supervise. The defendants maintained that the plaintiff had failed to present evidence establishing a standard of care and a breach therefrom.
After viewing the evidence in a light most favorable to the plaintiff, the Supreme Court assumed that Ford owed his students a duty to supervise but held that the plaintiff did not offer legally sufficient evidence that Ford had breached this duty. Therefore, the Court held that a reasonable jury could not find for the plaintiff on the issue of negligence. Accordingly, the Court denied the plaintiff’s appeal.
 

Mary E. DeFontes and Nicholas T. Long, individually and on behalf of a class of persons similarly situated v. Dell, Inc., et al, Nos. 04-137 and 04-114 (December 14, 2009)

The defendants, Dell Inc. f/k/a/ Dell Computer Corp. (Dell), Dell Catalog Sales LP (Dell Catalog), Dell Marketing LP (Dell Marketing), QualxServ, LLC (QualxServ), and BancTec, Inc. (BancTec), collectively (defendants), appealed from a Superior Court order denying their motion to stay proceedings and compel arbitration.  The plaintiffs, brought suit individually and on behalf of a class of similarly situated persons against the defendants, alleging that its collection of taxes from them on the purchase of Dell optional service contracts violated the Deceptive Trade Practices Act, G.L. 1956 chapter 13.1 of title 6. The defendants filed a motion to stay proceedings and compel arbitration, citing an arbitration provision within the parties’ purported agreement.  They argued that the arbitration provision was part of a " Terms and Conditions Agreement," which they contended the plaintiffs had accepted by accepting delivery of the goods.  Specifically, the defendants averred that the plaintiffs had three separate opportunities to review the terms and conditions agreement, namely: by selecting a hyperlink on the Dell website, by reading the terms that were included in the acknowledgment/invoice that was sent sometime after the order, or by reviewing the copy of the terms were included in the packaging when the computer was shipped.  The hearing justice reviewed the terms and conditions agreement and found that language was insufficient to give a reasonable consumer notice of his or her right to reject the terms by returning the goods.  The absence of this an express disclaimer meant that the defendants could not prove that the plaintiffs knowingly consented to the terms and conditions agreement.  Accordingly, the hearing justice found that the plaintiffs could not be compelled into arbitration.  The Supreme Court agreed.  It determined that that it was unclear whether a reasonably prudent consumer would understand that by keeping the Dell computer he or she was agreeing to be bound by the terms and conditions agreement and retained, for a specified time, the power to reject the terms by returning the product.  Accordingly, it affirmed the judgment of the Superior Court. 

State v. Jerry Coleman, No. 07-223 (December 14, 2009)

The defendant, Jerry Coleman, appealed from a Superior Court order denying his motion to reduce sentence.  The defendant contended that his sentence should have been reduced because it was grossly disproportionate to that of his confederate; he also contended that the trial justice erred by departing from the Superior Court Sentencing Benchmarks.  The defendant also argued that he should have been sentenced to serve his sentences concurrently rather than consecutively.

The Supreme Court affirmed the order of the Superior Court, holding that the defendant’s sentence was not grossly disproportionate to that of his confederate.  The Supreme Court also held that the trial justice did not abuse her discretion in departing from the Superior Court Sentencing Benchmarks because her reasons for departure were justified.  Finally, the Supreme Court held that it was not an abuse of discretion for the trial justice to order the defendant to serve consecutive sentences based on the facts and circumstances of the crime committed.  

School Committee of the City of Cranston et al v. Michelle Bergin-Andrews et al,No. 08-289 City of Cranston v. School committee of the City of Cranston, et al, No. 08-291 (December 14, 2009)

The plaintiffs, the School Committee of the City of Cranston, and the Superintendent of Schools appeal from a judgment in favor of the defendants, the members of the Cranston City Council, the Mayor, and the Director of Finance.  The plaintiffs sought additional appropriations for the Cranston School Department for fiscal year (FY) 2007-2008 in what is commonly referred to as a " Caruolo action."   The plaintiffs also appealed from a judgment in favor of the defendants in the city’s consolidated action for declaratory, injunctive, and mandamus relief. 

The plaintiffs contended that the trial justice erred in concluding that the school committee did not meet the statutory prerequisites for filing a Caruolo action under G.L. 1956 § 16-2-21.4, as well as alleging a number of other errors.  The Supreme Court affirmed the judgment of the Superior Court.

The Court concluded that, in light of the language of the Caruolo Act itself, as well as the other pertinent provisions of G.L. 1956 chapter 2 of title 6, it was clearly the General Assembly’s intent to encourage expeditious action in instances of potential school deficit spending.  The Court therefore affirmed the trial justice’s application of the doctrine of laches in the instant case.  The Court further held that the trial justice did not abuse her discretion in discussing the plaintiffs’ failure to conform to other statutory requirements prior to bringing the Caruolo action.

Likewise, the Court held that the trial justice did not abuse her discretion in consolidating the instant cases.  Both involved common issues of fact and law, and the resolution of the school committee’s Caruolo action will have an immediate and profound effect on the FY 2008-2009 budget at issue in the defendants’ complaint and counterclaim.  The Court also held that, in light of the Superior Court’s consolidation order as well as the evidence adduced at trial, it appears that the school committee was adequately on notice that the two actions would be tried together and could be decided simultaneously.

The school committee also contended that the trial justice erred in granting injunctive relief ordering it to prepare a corrective action plan for FY 2007-2008.  In actuality, however, the trial justice ordered the school committee to file the corrective action plan by writ of mandamus.  Upon review of the record, the Court found the trial justice’s issuance of the writs to be adequately supported by the evidence adduced at trial.  There was no disposition of the injunctive relief claims on the merits and the school committee’s arguments as to that issue are inapposite.

The Court further held that the trial justice did not misconceive the evidence nor was she clearly wrong in making her factual findings.  There was ample evidence to suggest that the school committee could have been more effective in its budgeting practices, could have helped foster a settlement by filing a corrective action plan, might have been able to cut programs without violating its contractual obligations, and did not act in a timely fashion to reduce expenses.

  State v. William Grullon No. 2007-214 (December 10, 2009)

The defendant appealed from his convictions for two counts of possession with intent to distribute cocaine and one conviction of conspiracy to violate Rhode Island’s Uniform Controlled Substances Act, G.L. 1956 chapter 28 of title 21. The defendant’s convictions arise from a series of cocaine purchases by an informant, working with the New Shoreham Police Department on Block Island, from the defendant and from the defendant’s brother. As a result of the New Shoreham Police Department’s investigation, the defendant and his brother were arrested at Block Island State Airport, where a subsequent search of his brother’s belongings resulted in the discovery of 175 bags of cocaine.

Before the Supreme Court, the defendant advanced six arguments as to why his convictions should be overturned. He argued that he received ineffective assistance of counsel, based upon two independent theories. Next, he argued that the trial justice erred when he denied his motion to dismiss his conspiracy charge because the state’s bill of particulars alleged a specific date that varied from the evidence at trial. The defendant also argued that the court abused its discretion when it admitted into evidence a photocopy of a $100 bill because the state failed to demonstrate cause for not introducing the original. He also contended that there was error in the admission of a bag, alleged to have contained cocaine, because the chain of custody was not established. Finally, the defendant maintained that the trial justice abused his discretion when he allowed the informant to testify about a cellular-phone conversation, because the state did not disclose in discovery that the conversation was over a cellular-phone.

The Supreme Court rejected all six arguments and affirmed the judgments of conviction. The Supreme Court dismissed the defendant’s two claims of ineffective assistance of counsel because they were brought on direct appeal, rather than by a petition for postconviction relief. The Court also held that the variance between the bill of particulars and the state’s proof at trial did not surprise or prejudice the defendant. Next, the Court held that the trial justice did not abuse his discretion when he admitted the photocopy of the $100 bill, nor did the trial justice abuse his discretion when he found that the state did not violate the rules of discovery. Finally, the Supreme Court concluded that the defendant failed to preserve his right to appeal the admission of a bag that contained cocaine.

  State v. Richard Tower No. 2008-297 and State v. Richard Tower No. 2008-298 (December 14, 2009)

On October 29, 2006 and on November 26, 2006, the defendant, Richard Tower, was alleged to have violated a no-contact order with respect to his former girlfriend. On October 29, 2006, two police officers responded to the report of a domestic disturbance at the former girlfriend’s apartment. Upon arriving, the officers spoke to Tower, who initially refused to speak to them, and then moved toward one officer, shoving his shoulder into the officer’s chest. The two officers handcuffed Tower and then spoke with his former girlfriend who was present in the apartment. On November 26, 2006, a police detective conducting a follow-up investigation to the October 29, 2006 incident, again saw Tower at his former girlfriend’s address while the she was at home.

The state filed two criminal informations in Superior Court alleging that Tower committed a felony on October 29 and on November 26 when he violated his no-contact order with his former girlfriend because Tower had two prior convictions for domestic-violence crimes, and that he committed a simple assault when he struck one officer. Tower was convicted by a jury in Superior Court of two separate violations of the no-contact order and for the simple assault.
On appeal, Tower raises two arguments. First, Tower argues that the Superior Court lacked subject-matter jurisdiction to try him for violating the no-contact order because the no-contact order had expired before the incident on October 29, 2006, thereby depriving the Superior Court of jurisdiction. Second, Tower argues that he was entitled to a judgment of acquittal on the simple assault charge because placing his shoulder into the officer’s chest was insufficient evidence to constitute a simple assault.
 

The Supreme Court affirmed the defendant’s judgments of conviction. First, the Court held that the Superior Court had subject-matter jurisdiction to try Tower because the informations filed by the state alleged that Tower committed a felony. Since the Superior Court has exclusive jurisdiction over felony charges, it therefore had subject-matter jurisdiction, regardless of whether the state could prove at trial that the no-contact order was valid. Second, Tower waived his right to seek appellate review of the trial justice’s denial of his motion for judgment of acquittal under Rule 29 of the Superior Court Rules of Criminal Procedure on his simple assault conviction because he failed to renew his motion for judgment of acquittal after he presented witnesses on his own behalf.

Christine C. Chiappone v. Harry Chiappone. No. 2005-50-Appeal.(December 14, 2009)

The defendant, Harry Chiappone, appealed from a Family Court decision pending entry of final judgment of divorce.  As grounds for his appeal, Harry argued that: (1) the trial justice erred in the valuation of certain marital assets subject to equitable distribution; (2) she failed to consider the statutory factors in equitably distributing the marital assets; (3) she erred in failing to consider the children’s best interests and in deferring to a therapist on the issue of visitation; and (4) she failed to rule on the defendant’s motion to modify the temporary support order.  The plaintiff, Christine C. Chiappone, cross-appealed from the same decision, asserting that the trial justice erred by including assets in the marital estate that were intended for the parties’ minor children, under the Uniform Transfer to Minors Act, G.L. 1956 chapter 7 of title 18.

The defendant’s first issue raised on appeal is now moot, as a judgment of the United States Bankruptcy Court has discharged the debt at issue.  Moreover, Harry conceded that the trial justice erred in including the marital estate in the custodial account composed of stock.  Further, the Supreme Court held that the trial justice did not abuse her discretion in equitably dividing the marital assets because the trial justice clearly considered the statutory factors in dividing the marital estate.  The Court held that the trial justice did consider the children’s best interests on the issue of visitation; and, though the trial justice erred in stating that visitation should be left to the therapist rather than the Family Court, it is an error without a remedy.  The defendant has not sought visitation with his daughters in over ten years, and the Family Court has had no occasion to consider the application of the visitation order.  Finally, the Court discerned no abuse of discretion in the trial justice’s failure to hold a hearing on the defendant’s motion to modify because the defendant failed to press the motion and provide evidence of changed circumstances.

State v. Tyrone Gilbert.  Mo 2008-199 (December 14, 2009)

The defendant appealed from a Superior Court adjudication of probation violation.  On appeal, the defendant argued that the hearing justice erred in refusing his request for the appointment of alternate counsel and for a continuance to secure the appearance of a witness. 

At the hearing, the defendant requested a new attorney because he did not feel confident in his appointed counsel based on an unreturned phone call and the attorney’s statement that it was not her job to believe him.  The hearing justice gave the defendant the option of proceeding with appointed counsel or proceeding pro se, and the defendant chose to proceed with the appointed counsel.  At the conclusion of the testimony, the defendant requested a continuance to secure a witness, but the hearing justice denied this request.  The hearing justice adjudged the defendant a probation violator, finding that the defendant’s actions amounted to domestic assault, a violation of a no-contact order, disorderly conduct, and resisting arrest. 

The Supreme Court held that the hearing justice did not abuse his discretion in refusing to appoint the defendant alternate counsel because there were no exceptional circumstances justifying the postponement of the violation hearing, the grounds for defendant’s request did not call into doubt counsel’s capability to adequately represent him, no other competent attorney was prepared to represent the defendant, and postponement of the hearing would have inconvenienced the court and the state’s two witnesses.

The Court also held that it was not an abuse of discretion to deny the defendant’s request for a continuance to locate a witness, given that the defendant made no offer of proof that the witness’s testimony would have been material, did not provide any facts demonstrating that he had been diligent in securing the witness, and there was no assurance that the witness would become available to testify.

Charles Vaillancourt v. Richard Motta et al, No. 08-310 (November 25, 2009)

The defendants appealed from an entry of summary judgment in favor of the plaintiff in this dispute between neighboring property owners over a shared sewer pipe.  Until 1954, the plaintiff’s and the defendants’ properties comprised a single parcel of land.  Continually since the time the parcel was severed, a sewer line serving the defendants’ property has traversed what is now the plaintiff’s property to reach a city tie-in.  In 2007, the plaintiff purchased the property, discovered the sewer line, and filed the present action for declaratory and injunctive relief.  The defendants argued that they had an easement by implication to maintain the sewer pipe.  The Superior Court granted summary judgment in favor of the plaintiff, thereby permanently restraining the defendants from maintaining the sewer pipe across the property.      

On appeal, the defendants argued the plaintiff failed to demonstrate that there were no issues of material fact in dispute.  The Supreme Court reaffirmed that the test for an easement by implication is whether the easement was reasonably necessary for the convenient and comfortable enjoyment of the property as it existed at the time of severance.  The Court held that the plaintiff failed to carry his burden on a motion for summary judgment to show there were no issues of material fact in controversy because he did not offer any evidence concerning the facts and circumstances present at the time of severance tending to demonstrate that the easement was not necessary.  The Supreme Court vacated the lower court’s grant of summary judgment.    

George Waterman v. Frank Caprio, in his capacity as Treasurer of the State of Rhode Island et al, No. 07-312 (November 25, 2009)

The plaintiff appeals from an entry of summary judgment in favor of the defendants.  The plaintiff presented three issues on appeal.  He first asserted that the hearing justice misinterpreted G.L. 1956 § 36-10-31 by finding that his disability retirement payments must be offset by his workers’ compensation settlement payments made pursuant to G.L. 1956 § 28-33-25.1.  The plaintiff also argued that because a retirement system employee indicated that the disability payments would not be offset, the defendants should be estopped from reducing his pension benefits.  Finally, the plaintiff argued that this Court should allow him to resurrect both his workers’ compensation claim and accidental disability claims, which the plaintiff asserts he forfeited based on the retirement system employee’s representations. 

The Supreme Court affirmed the grant of summary judgment holding that the hearing justice properly interpreted § 36-10-31 and correctly denied plaintiff’s equitable estoppel claim.  The Court reasoned that § 36-10-31’s language is clear, unambiguous, and broad.  Section 36-10-31 requires that disability payments must be offset by " [a]ny amount paid or payable under the provisions of any workers’ compensation law," which the Court held included workers’ compensation settlement payments provided by § 28-33-25.1.

Additionally, the Court held that the plaintiff’s estoppel claim could not survive because the statements made by the retirement system employee were ultra vires.  The employee had no actual or implied authority to make binding statements that contradicted state law.  Because § 36-10-31’s language clearly requires that the disability benefits must be offset in this instance, it did not matter that the employee suggested otherwise. 

Finally, the plaintiff’s resurrection claim was denied under the Court’s " raise or waive" rule.

State v. Timothy Scanlon, No. 07-330 (Amended)

City of East Providence v. International Association of Firefighters Local 850, No. 07-277 (November 20, 2009)

The City of East Providence (city) appealed from a Superior Court order confirming an arbitration award in favor of the International Association of Firefighters, Local 850 (Local 850).   The city contended that the arbitrator’s award was improper because it conferred the benefits of G.L. 1956 chapter 19.1 of title 45, entitled, " Cancer Benefits for Fire Fighters" to its firefighters.  After battling prostate cancer, Battalion Chief James Moniz returned to active duty and sought to convert the forty-four days of sick-leave he had used for cancer treatment back to his sick leave reserve.  Chief Moniz sought to have these days converted based on his eligibility for injured-on-duty benefits through the " Cancer Benefits for Fire Fighters" statute.  The city denied Chief Moniz’s request to convert his sick days, stating in part, that because he was able to return to active duty, he was not entitled to benefits under the " Cancer Benefits for Fire Fighters" statute.

 At arbitration, the city contended that the language of the " Cancer Benefits for Fire Fighters" statute limited its application to municipalities participating in the optional municipal retirement program.  The city further contended that it was exempt from providing injured-on-duty benefits to its cancer afflicted firefighters based on the fact that it had established its own retirement system, as enacted by P.L. 1925, ch. 715.  The Local 850 argued that the " Cancer Benefits for Fire Fighters" statute applied to all firefighters in Rhode Island, and in the alternative, that the city had established a past practice of providing injured-on-duty benefits through the " Cancer Benefits for Fire Fighters" statute for cancer stricken firefighters.  The arbitrator determined that the " Cancer Benefits for Fire Fighters" statute was incorporated into the parties’ collective bargaining agreement through the parties’ adoption of the " Injured-On-Duty" statute and awarded Chief Moniz forty-four days of sick leave to his sick leave reserve.

On appeal, the city argued that the arbitrator exceeded his authority by looking to the " Injured-On-Duty" statute and the " Cancer Benefits for Fire Fighters" statute.  The city further argued that the arbitrator’s award was irrational because it conferred benefits under the " Cancer Benefits for Fire Fighters" statute that the city had neither contemplated, nor funded.

The Supreme Court determined that the arbitrator did not exceed his authority by looking to, and interpreting the relevant, applicable statutes.  Further, the Supreme Court held that the " Cancer Benefits for Fire Fighters" statute provided injured on-duty benefits for all cancer stricken Rhode Island fire fighters.  Finally, the Supreme Court held that the arbitrator’s award was not irrational because all municipalities are required by the " Injured On-Duty" statute to provide on-duty benefits for firefighters and police officers who are injured on-duty, and that classifying cancer as an on-duty injury for firefighters would not cause irreparable harm to the city.  Therefore, the Supreme Court affirmed the Superior Court’s confirmation of the arbitration award. 

Peter Boranian v. Elaine Richer et al, No. 08-324 (November 20, 2009)

 The plaintiff appealed from a Superior Court order granting the defendants motion for leave to reject a court-annexed arbitration award out of time.  The parties had submitted to court-annexed arbitration under the Superior Court Rules Governing Arbitration of Civil Actions.  The arbitrator awarded the plaintiff $45,000, plus interest and costs.  The defendants sought to reject the arbitrator’s award and proceed with trial under Rule 5(a) of the Superior Court Rules Governing Arbitration of Civil Actions.  On May 13, 2008, the defendants filed their rejection with the Superior Court Arbitration Office.  The Defendants’ rejection, however, had missed the twenty-day deadline by one day.  The defendants then moved for leave to reject the arbitrator’s award out of time based on the defendants’ counsel’s incorrect calculation of the deadline date.  The hearing justice found that the defendants’ counsel’s failure to properly calendar the deadline date amounted to excusable neglect, and he granted their motion for leave to reject the arbitrator’s award out of time. 

On appeal, the plaintiff contended that the defendants’ counsel’s failure to timely file the rejection of the arbitrator’s award did not amount to excusable neglect as defined by this Court.  The defendants argued that their counsel’s failure to calculate the proper rejection deadline was excusable neglect and, in the alternative, that Rule 6(d) of the Superior Court Rules of Civil Procedure provided them with an additional day to file their rejection, making their rejection timely. 

The Supreme Court held that the hearing justice abused his discretion in granting the defendants’ motion for leave to reject the arbitrator’s award out of time because the defendants’ reason for missing the deadline was not sufficient to constitute excusable neglect.  Therefore, the Supreme Court reversed the order of the Superior Court.  The Supreme Court also noted that Rule 6(d) did not provide for an additional day when a required act was based on a filing date, rather than a service date. 

  Michael A. Ballard v. State of RI, No. 06-186 (November 19, 2009)

The applicant, Michael A. Ballard, appealed from a Superior Court judgment denying his application for postconviction relief.  Mr. Ballard was convicted of conspiring to abduct three teenagers in 1979.  Specifically, a jury found the applicant guilty of conspiracy to kidnap with intent to extort, kidnapping with intent to extort, kidnapping, assault with a dangerous weapon, and carrying a pistol without a license.  Mr. Ballard was sentenced to life imprisonment on two counts and an aggregate of sixty-five years on the remaining counts.

The applicant raised four issues on appeal.  First, he alleged that the State of Rhode Island did not have jurisdiction to prosecute him because he was not properly removed from federal custody into state custody.  The applicant argued that a writ of habeas corpus and mittimus served on federal authorities is not an appropriate legal procedure for transferring physical custody of a defendant from federal to state authorities.  The Court held, however, that the transfer of custody was proper because the federal authorities no longer had an interest in the applicant and did not contest the transfer. 

Further, Mr. Ballard argued that the trial justice improperly instructed the jury on reasonable doubt when he defined " reasonable doubt" as an " actual or a substantial doubt." While the applicant’s case was still on direct review, this Court held in another case that " substantial doubt" should not be equated with " reasonable doubt."  This issue, however, was raised previously by the applicant on direct review and addressed by the Court at that time.  It therefore is barred by the doctrine of res judicata.  The Court also rejected the applicant’s contention that his right to confrontation under the Sixth Amendment to the United States Constitution was violated because the statement of an out-of-court declarant was read into the record, and that individual was neither called as a witness nor subjected to cross-examination.     

The applicant’s final argument was that, although his sentence previously had been reduced twice, it remained " manifestly excessive" and thus violated the Eighth Amendment to the United States Constitution.  The applicant’s sentence initially was reduced by the original trial justice and, thereafter, the Court reduced his sentence further, holding that it was, in fact, manifestly excessive.  The Court held that any further review was barred by the doctrine of res judicata.  The judgment of the Superior Court was affirmed. 

State v. Timothy Scanlon, No. 07-330 (November 17, 2009)

On July 28, 2005, a jury found Timothy Scanlon guilty of three counts of first-degree sexual assault; two counts of felony assault; and one count of first degree robbery.

On appeal, the defendant raises four issues in an effort to overturn his conviction(s).  First, defendant argues that the trial justice erred when he granted the state’s motion in limine,  excluding the testimony of a defense witness who would impeach the credibility of the complaining witness, because the proposed testimony was material not collateral.  Second, the defendant argues that he was entitled to judgment of acquittal for one count of felony assault because the complaining witness’s injuries did not rise to the level of a " protracted loss or impairment of the function of any bodily part, member or organ" as defined in the felony assault statute.  Third, the defendant asserts that his convictions on both felony assault counts merge under a double jeopardy analysis because both occurred as part of a continuous incident.  Finally, the defendant asserts that he is entitled to a new trial because he was prejudiced and denied due process when the state disclosed two pieces of evidence just before trial.

The Supreme Court affirmed the judgments of conviction.  The Court held that the trial justice’s grant of the state’s motion in limine was appropriate because the proposed testimony was extrinsic evidence offered solely to impeach the complaining witness and was therefore properly excluded pursuant to Rule 608(b) of the Rhode Island Rules of Evidence.  The Court also determined that the defendant failed to preserve his right to appeal the denial of his motion for judgment of acquittal on one felony assault count, re: the complaining witness’s injuries, because he did not renew his motion after presenting his own witnesses.  The Court rejected the defendant’s argument that his two felony assault convictions merged under a double jeopardy analysis because the assaults were not part of a continuous incident but rather were two distinct occurrences.  Finally, the Court affirmed the trial justice’s denial of the defendant’s motion for new trial because the defendant failed to object at the time of disclosure or when introduced at trial to the state’s alleged discovery violations. 

State v. Nicki A. Nelson, No. 07-323 (November 13, 2009)

The defendant appealed from Superior Court judgments of conviction for operating a motor vehicle while under the influence of intoxicating liquor, resulting in serious bodily injury in violation of G.L. 1956 § 31-27-2.6 and for driving to endanger resulting in personal injury in violation of § 31-27-1.1.   The defendant raised three arguments on appeal.   

First, the defendant argued that the trial justice committed reversible error when he denied a defense motion for a mistrial after a prospective juror made an inappropriate comment during the voir dire that, as a college professor, she had had students killed by drunk drivers.  The Supreme Court held that the trial justice did not err in denying the defendant’s motion.  The Court reasoned that the prospective juror’s improper statement would not influence the average reasonable juror because it neither revealed unknown information to the panel nor did it imply that the defendant herself was guilty.  Additionally, the Court held that the trial justice’s curative instruction to the jury was sufficient to remedy any prejudicial effect stemming from the statement and an individual voir dire of each juror was unnecessary.

Second, the defendant asserted that the trial justice erred when he admitted the evidence of the blood-alcohol level analysis because of an insufficient showing of chain of custody of the blood specimen because of the inability of the state to indicate the laboratory technician who performed the analysis.  The Court held that it was reasonably probable that the blood specimen had not been tampered with and, therefore, the trial justice did not err when he admitted the results of the blood-alcohol level analysis.  Therefore, any infirmity in the chain of custody properly went to the weight of the evidence rather than its admissibility.

  Finally, the defendant alleged error in the trial justice’s interrogation of two of the state’s witnesses.  The Court first addressed whether the issue of the trial justice’s interrogation of the emergency room physician was properly preserved for review.  Defense counsel deferred his objection until after the trial justice’s interrogation of the witness had concluded when he requested to be heard at sidebar, but the objection was not placed on the record, outside of the jury’s presence, until the following day due to time constraints.  The Court held that the issue was properly preserved despite the deferment of the objection because Rule 614(C) of the Rhode Island Rules of Evidence provides that objections to interrogation by the court " may be made at the time or at the next available opportunity when the jury is not present."   (Emphasis added.)  In addition to being timely, the Court also concluded that the objection was sufficiently specific to preserve the issue for review because it put the trial justice on notice that the defendant objected to the line of questioning.  The trial justice’s questioning of the second witness, the director of the Rhode Island State Crime Laboratory, properly was preserved for review.   

The Court then addressed the merits of the defendant’s arguments, and held that the trial justice’s interrogation of both witnesses represented reversible error.  The Court reasoned that the trial justice overstepped the narrow parameters of judicial interrogation of witnesses because the trial justice did not limit himself to clarification of justifiably confusing matters for the jury. Although the trial justice did not assume the role of an advocate, his interrogation of the witnesses nonetheless improperly served as an extension of the direct and cross-examinations, and elicited highly prejudicial testimony, and reinforced the defendant’s intoxication to the jury.  Accordingly, the Court sustained the defendant’s appeal in part and denied it in part.  The Court vacated the judgments of conviction and remanded the case to the Superior Court for a new trial. 

Martel Investment Group, LLC v. Town of Richmond et al, No. 08-152 (November 9, 2009)

Martel Investment Group, LLC (Martel) appealed from a Superior Court decision granting summary judgment in favor of the defendant, Town of Richmond (town).  Martel brought suit against the town, contending that the town should be equitably estopped from enforcing an amended zoning ordinance that prohibited Martel from operating an " adult entertainment business."  Shortly after Martel purchased a parcel of land, formerly the site of a Bickford’s restaurant, the town issued it a building permit that allowed it to begin renovations on the building.  Subsequent investigation by the building official revealed that Martel had not submitted to development-plan review under § 18.54.010.D.2 of the Town of Richmond Zoning Ordinance.  The building official notified Martel that it was required to apply for development- plan review, but Martel delayed seeking development-plan review, and in the interregnum the town’s zoning ordinance was amended to prohibit " adult entertainment businesses."

After hearing arguments of counsel, the hearing justice entered summary judgment in favor of the Town.  The court primarily relied on this Court’s opinion in Town of Johnston v. Pezza, 723 A.2d 278, 283 (R.I. 1999), in which the Supreme Court held that the doctrine of equitable estoppel does not apply to instances in which a building official acts outside the authority vested in the official by the zoning ordinance.  On appeal, Martel argued that the hearing justice erred in declining to find that the town was estopped from enforcing its zoning ordinances.  The Supreme Court disagreed.  It held that this case was governed by its earlier holding in Pezza and declined to disturb the hearing justice’s decision.  The Court reiterated that a building-permit applicant is responsible for ensuring that his or her application conforms to the relevant zoning ordinances.  Because a building official may not act beyond the authority granted to him or her by law, the building official’s issuance of a building permit without the required development-plan review was ultra vires such that the doctrine of equitable estoppel did not apply.  Accordingly, the judgment of the Superior Court was affirmed.

In re Toryn C, No. 07-294 (November 6, 2009)

The petitioners appealed from a Family Court order dismissing their petition for adoption.  The chief judge dismissed the petition on the grounds that the Family Court did not have jurisdiction to hear the matter because both the petitioners were residents of Massachusetts at all times relevant to the petition.  The Supreme Court affirmed the order of the Family Court dismissing the petition, holding that the facts of the case placed the petition for adoption outside the jurisdiction of the Family Court as delimited in G.L. 1956 § 15-7-4.

Frank Fiorenzano v. Kenneth Lima, No. 08-234 (November 6, 2009)

The plaintiff, Frank Fiorenzano, appealed pro se from a summary judgment granted by the Superior Court in favor of the defendant, Kenneth Lima, with respect to all counts of the plaintiff’s complaint.  On appeal, the plaintiff contended that the hearing justice erred when she granted summary judgment in favor of the defendant; he argued that he should be allowed to proceed with respect to two counts of the underlying complaint: namely, abuse of process and loss of consortium. 

The Supreme Court affirmed the judgment of the Superior Court, holding that the defendant’s actions did not constitute an abuse of process.  The Supreme Court also held that the plaintiff’s loss of consortium claim must also fail because such a claim is derivative in nature and there was no tort judgment in favor of the plaintiff’s spouse to which a loss of consortium claim could relate. 

Loretta Furlan v. Douglas Farrar, No. 08-134 (November 5, 2009)

This case arose from a dispute between a residential landlord and his tenant.  The defendant landlord, Douglas Farrar, appealed from a judgment entered in favor of the pro se plaintiff, Loretta Furlan, after a bench trial in the Superior Court.  The Supreme Court affirmed the judgment of the Superior Court, holding that, because the defendant landlord prevented the plaintiff tenant from accessing the apartment after the plaintiff had called the defendant to terminate the month-to-month tenancy, the plaintiff was entitled to the return of her security deposit minus her unpaid, accrued rent.

State of Rhode Island v. Shane M. Gaspar, No. 07-44 (October 30, 2009)

The defendant, Shane Gaspar, appealed from a Superior Court judgment of conviction on five counts of first-degree sexual assault.  The defendant presented three grounds as a basis for reversal of his conviction and a new trial.  He contended that the trial court committed prejudicial error by (1) permitting the state to introduce the testimony of another woman who had a prior sexual relationship with the defendant under Rule 404(b) of the Rhode Island Rules of Evidence, (2) allowing the state to introduce the complaining witness’s hearsay statements contained in a report prepared by an emergency room doctor, and (3) permitting the state’s medical expert to offer an opinion about the approximate age of the complaining witness’s bruising without providing any foundation for her opinion.

The Supreme Court vacated the judgment of conviction and remanded the case to the Superior Court for a new trial.  The Court held, first, that the testimony presented by the defendant’s former girlfriend about their sexual relationship was inadmissible under Rule 403 because its probative value was substantially outweighed by the risk of unfair prejudice to the defendant.  Moreover, the Court noted that the risk of unfair prejudice was heightened because the state presented the testimony of defendant’s former girlfriend as part of its case-in-chief in order to " anticipatorily impeach" the defendant’s expected testimony.

The Court also found error with the state’s introduction of a narrative summary of the alleged assault taken by the doctor who treated the complaining witness.  The Court held that the doctor’s unredacted medical summary report should not have been admitted at trial because it contained factual details that were unconnected with diagnosis or treatment and that strongly, and explicitly, imputed criminal fault to the defendant.

 On the defendant’s third claim of error, however, the Court held that the trial justice did not abuse her discretion in permitting the doctor to testify about the approximate age of the complaining witness’s bruises.  The Court held that the testimony was not without proper foundation and that the doctor’s qualifications were sufficient to assure the Court that her conclusion was well-grounded.