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11-38011-380.pdfGerald Lopes v. State of Rhode Island, No. 11-380 (March 26, 2015)
This appeal came before the Supreme Court pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not summarily be decided.  Gerald Lopes (Lopes) seeks review of the denial of his application for postconviction relief.  Lopes entered a plea of nolo contendere in two separate cases to the charges of burglary, breaking and entering, and receiving stolen goods.  Lopes later applied for postconviction relief in the Superior Court, alleging myriad grounds for relief, including: (1) constitutional violations of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution; (2) due process violations; (3) ineffective assistance of trial counsel; (4) prosecutorial misconduct; and (5) new evidence.
 
The Supreme Court held that the trial justice had not erred in finding that Lopes had knowingly and voluntarily pled to the charges.  The Court also concluded that Lopes had failed to satisfy his burden of proof with regard to his allegations of ineffective assistance of counsel.  Accordingly, the Court affirmed the judgment of the Superior Court.
13-60, 13-61, 13-6213-60, 13-61, 13-62.pdfDavid F. Miller et al. v. Metropolitan Property and Casualty Insurance Co. et al., Nos. 13-60, 13-61, 13-62 (March 20, 2015)
The Supreme Court’s opinion addressed three appeals arising from the complaint filed by the plaintiff, David F. Miller, against the defendants, Amica Mutual Insurance Company, Amica Property and Casualty Insurance Company (collectively Amica), and Metropolitan Property and Casualty Insurance Company (Metropolitan).  Beginning in 2001, the plaintiff fell under the suspicion of the Rhode Island State Police (State Police), who, with the help of the defendants, conducted an investigation into insurance claims at the plaintiff’s Cumberland auto body shop.  The plaintiff was later arrested and charged by the Rhode Island Attorney General (Attorney General), but those charges ultimately were dismissed upon certain conditions.  Those conditions were: (1) that the plaintiff relinquish or transfer his auto-body license, (2) that the plaintiff pay restitution to the defendants, and (3) that the plaintiff execute a general-liability release in favor of the Attorney General, the State Police, and the defendants.
 
Fifteen months later, the plaintiff filed his complaint, alleging eight counts, including tortious interference with contracts, malicious prosecution, and abuse of process.  Of the eight counts, all except the abuse-of-process claim were dismissed prior to trial on motions for summary judgment granted in favor of the defendants.  After a jury trial, where the plaintiff secured verdicts in his favor, the trial justice granted Amica’s motion for judgment as a matter of law, but denied the same motion from Metropolitan.  The plaintiff appealed the former decision, and the prior judgments in Amica’s favor, and Metropolitan appealed the latter.  The plaintiff then cross-appealed the pretrial rulings in Metropolitan’s favor, resulting in three separate appeals.

On review, the Supreme Court found that the release that the plaintiff signed to end the criminal prosecution explicitly barred the plaintiff from pursuing civil claims against the defendants.  The plaintiff received consideration for the release, in the form of the termination of the prosecution, he is an experienced businessman who would have been aware of the consequences of signing such a document, and he was advised by counsel throughout the process.  The plaintiff argues that despite these facts the release should not be valid because he signed the release under duress.  However, the plaintiff could not produce sufficient evidence, at the summary judgment stage or at trial, to show that the defendants’ conduct rose to the level of legal duress because the defendants did not commit an unlawful act and the plaintiff had more than one legitimate choice when he contemplated signing the release.

Applying settled law, the release was found to be valid and should have been the basis for the trial justice to grant judgment to the defendants on all counts of the complaint.  Accordingly, the Supreme Court affirmed the pretrial grants of summary judgment for Amica and Metropolitan.  With respect to the abuse of process claim that went to trial, the Supreme Court affirmed the trial justice’s grant of judgment as a matter of law in favor of Amica, and reversed the trial justice’s decision and granted judgment as a matter of law for Metropolitan.

Justice Goldberg did not participate.
13-11013-110.pdfState v. Joseph Armour, No. 13-110 (March 17, 2015)
This case came before the Rhode Island Supreme Court on February 3, 2015, on appeal by the defendant, Joseph Armour (defendant), from a Superior Court judgment of conviction following a jury verdict of guilty of one count of second-degree child molestation.  The defendant contended that the trial justice erred in: (1) denying his motion to suppress an incriminating confession he gave to the police; (2) permitting Dr. Amy Goldberg to testify regarding the explanation of a normal examination over defense counsel’s objection; and (3) denying the defendant’s motion for judgment of acquittal.  After thorough examination of the record, the Supreme Court determined that, in light of the trial justice’s findings of historical fact and credibility determinations which are viewed with deference, the trial justice did nor err in concluding that the defendant’s confession was given voluntarily.  Next, the Court concluded that the defendant had not properly preserved his objection to Dr. Goldberg’s testimony.  Lastly, the Court determined that there was more than sufficient evidence to support the defendant’s conviction and denied his motion for judgment of acquittal.  Accordingly, the Court affirmed the Superior Court judgment.
12-8712-87.pdfJennifer O’Connor v. Newport Hospital et al., No. 12-87 (March 17, 2015)
The plaintiff, Jennifer O’Connor, appealed from a verdict returned in favor of all of the defendants in this medical malpractice action.  O’Connor had filed suit against an emergency- room physician, the physician’s employer, and the hospital where the allegedly negligent medical treatment had been provided, claiming that the defendants were liable for the permanent injuries she sustained after the defendants had allegedly failed to provide the correct diagnosis and treatment while she was in the emergency room at Newport Hospital.  On appeal, the plaintiff claimed that she was entitled to a new trial because the trial justice erred by admitting three documents into evidence during the voir dire of the plaintiff’s standard-of-care expert, and that this error, exacerbated by biased and incorrect language on the jury verdict form, was sufficiently prejudicial to warrant a new trial.
 
The documents at issue included printouts from two web pages and an email communication, all of which purported to show that the plaintiff’s expert witness, a Canadian physician, was not eligible to become a board-certified emergency-medicine physician in the United States.  The authentication of each document was a matter of first impression in Rhode Island.  The Supreme Court held that the brief testimony of one witness (the Canadian medical expert) who was clearly unfamiliar with all three documents was insufficient to support the authenticity of the documents.  The Supreme Court also held that each document was inadmissible as hearsay.  The trial justice, therefore, abused his discretion by admitting the three documents into evidence. 

The plaintiff had also objected to the wording of the first question on the jury verdict form, which asked whether the plaintiff had proven that the defendant-physician had breached the standard of care “for an emergency medicine physician practicing in the United States.”  The plaintiff contended that the wording was biased and incorrect, and also reinforced the core of the defendants’ criticism of the Canadian expert witness, and, ultimately, the import of the three improperly admitted documents.  The Supreme Court concluded that, while the language might pass muster in another medical malpractice case, when viewed in light of the circumstances of this case, the jury verdict question highlighted information contained in the three documents and contributed to the prejudicial effect of the erroneously admitted documents.  The phrase “practicing in the United States” drew attention to the fact that the Canadian medical expert witness was not board-certified in the United States, and the Court also noted that, while the witness had already testified that he was not board-certified in the United States, the three documents were available to the jury during its deliberations because each was admitted as a full exhibit.
  
Ultimately, the Supreme Court held that there was sufficient prejudice to warrant a new trial because the improperly admitted documents could reasonably have influenced the jury’s determination of the central issue in this case and the jury could have been misled into lending more weight to the expert witness’s nationality than appropriate, resulting in prejudice to the plaintiff.  Accordingly, the Supreme Court vacated the judgment and remanded the case for a new trial.
13-306, 14-2713-306, 14-27.pdfAtwood Health Properties, LLC v. Calson Construction Company v. Gem Plumbing & Heating Co., Inc., Nos. 13-306, 14-27 (March 17, 2015)
The defendant, Calson Construction Company (Calson), and the third-party defendant, Gem Plumbing & Heating Co., Inc. (GEM), (collectively, defendants) appeal a Superior Court order confirming an arbitration award in favor of the plaintiff, Atwood Health Properties, LLC (Atwood or plaintiff).  On appeal, Calson argued that the trial justice improperly confirmed an arbitration award; however, because Calson failed to object to Atwood’s request for confirmation and, in fact, requested that the Superior Court confirm the arbitration award, the Rhode Island Supreme Court deemed Calson’s appeal waived.  Turning to GEM’s appeal, GEM argued that:  (1) the arbitrator manifestly disregarded the contract and applicable law when he failed to make a finding of negligence before determining that GEM was in breach—a finding that GEM avows was required according to the indemnity clause in the contract with Calson; (2) the arbitrator’s reliance on the indemnification provision was in violation of G.L. 1956 § 6-34-1; (3) Atwood’s claims are time barred; and (4) the calculation of damages was irrational.  After a thorough review of the record, the Supreme Court was not persuaded by GEM’s contentions and affirmed the trial justice’s determination.
12-110, 111, 11212-110, 111, 112.pdfRetirement Board of the Employees’ Retirement System of the City of Providence v. Frank E. Corrente and Angel Taveras, in his capacity as the Mayor of the City of Providence (intervenor)and the City of Providence (intervenor), Nos. 12-110, 12-111, 12-112
These appeals arose from a decision of the Retirement Board of the Employees’ Retirement System of the City of Providence (board) to reduce the pension of former city employee Frank E. Corrente.  Corrente had been convicted on six criminal charges stemming from his employment as the Director of Administration for former mayor Vincent A. Cianci, Jr.  Pursuant to the “Honorable Service Ordinance” (HSO), Chapter 17, Article VI, § 17-189.1 of the City of Providence Code of Ordinances (as enacted in 1999), the board had voted to reduce Corrente’s pension benefits and then filed a miscellaneous petition in the Superior Court requesting that the court confirm its decision.  The mayor and the city (intervenors) were allowed to intervene in the matter, and a Superior Court justice confirmed the board’s decision to reduce Corrente’s pension.  The intervenors appealed the order of the Superior Court confirming the board’s decision, and the board cross-appealed the trial justice’s decision granting the intervenors’ motion to intervene.  On appeal, the Supreme Court first issued an order directing the parties to file supplemental briefs addressing the threshold issue of whether the Superior Court was properly vested with subject-matter jurisdiction over the case.  After the Supreme Court issued this order, the General Assembly enacted a new statute, G.L. 1956 § 36-10.1-5, which granted subject-matter jurisdiction to the Superior Court over cases brought pursuant to the HSO.

The Supreme Court held that, because the case was filed pursuant to the HSO and was adjudicated in the Superior Court prior to the enactment of § 36-10.1-5, the Superior Court lacked subject-matter jurisdiction.  The Supreme Court held that the final judgment of the Superior Court was therefore void.  The Supreme Court further held, however, that the Superior Court was now vested with jurisdiction over the case.  Accordingly, the Supreme Court remanded the matter to the Superior Court.  The Superior Court was directed to use its discretion to either conduct further proceedings based upon the record before the court, or, in its discretion, to re-enter its previous judgment.  
13-28213-282.pdfState v. Michael Tully, a.k.a. Michael Vanover, No. 13-282 (March 9, 2015)
The defendant, Michael Tully, appealed from a conviction of first-degree felony murder and conspiracy to commit robbery, as well as from the denial of his motion for a new trial.  The charges resulted from an attempted robbery that resulted in the death of one Ralph Joseph.  On appeal, the defendant first argued that the trial justice erred in denying his motion to pass the case.  This motion had been made during trial, after the state’s main witness unexpectedly testified that she had seen and recognized the defendant’s face during the commission of the crime.  The Supreme Court affirmed the trial justice’s denial of the defendant’s motion.  The Supreme Court held that the witness’s inconsistent testimony did not amount to a discovery violation and merely provided defense counsel with fodder for impeachment upon cross-examination.
 
Next, the defendant argued that the trial justice erred in denying his motion for a new trial.  The defendant asserted that the verdicts in the case were inconsistent and that there was a lack of evidence to support a conviction for the charge of conspiracy to commit robbery.  The Supreme Court affirmed the trial justice’s denial of the defendant’s motion.  The Supreme Court noted that verdicts need not be logically consistent so long as they are legally consistent and held that the verdicts in this case were indeed legally consistent.  Additionally, the Court concluded that the trial justice was not clearly wrong in agreeing with the jury’s finding that the defendant was guilty of conspiracy.
13-29413-294.pdfState v. Wilson Rodriguez, No. 13-294 (March 9, 2015)
This appeal came before the Supreme Court pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not summarily be decided.  The defendant, Wilson Rodriguez (defendant), appealed from a judgment of conviction after a jury verdict found him guilty of one count of delivery of a controlled substance, to wit cocaine.  In support of his appeal, the defendant argued that the trial justice erred in: (1) his denial of the defendant’s motion in limine to bar the testimony of detectives who conducted surveillance of the defendant; (2) his charge to the jury; (3) his failure to include certain portions of cross-examination testimony of a detective during a read back to the jury; (4) his denial of the defendant’s motion for judgment of acquittal; and (5) his denial of the defendant’s motion for a new trial.  The Supreme Court determined that cause had not been shown and affirmed the judgment of the Superior Court.
13-10113-101.pdfRenewable Resources, Inc. v. Town of Westerly, No. 13-101 (March 4, 2015)
The plaintiff, Renewable Resources, Inc., appealed from a Superior Court order vacating a preliminary injunction halting demolition of the Potter Hill Mill (the mill), as well as a subsequent judgment dismissing the remaining counts of the plaintiff’s amended complaint against the defendant the Town of Westerly (the town).  On appeal, the plaintiff argued that the hearing justice abused his discretion in failing to find a change in circumstances warranting the mill’s demolition.

The Supreme Court recounted that the plaintiff’s breach of the 2006 memorandum of agreement (MOA), which outlined the plaintiff’s duties in rehabilitating the mill, served as the impetus for the hearing justice’s decision to vacate the preliminary injunction.  The Court acknowledged that the preliminary injunction functioned as an enforcement mechanism for the MOA, given that it was supplemented by orders to commence the reconstruction and repair of the mill’s buildings.  Further, the Court noted that, between the granting of the preliminary injunction and the filing of the emergency motion for relief, the town twice sought to hold the plaintiff in contempt.  The Court reasoned that, because this noncompliance resulted in the mill’s advanced state of deterioration, the plaintiff’s breach was sufficient to constitute a change in circumstances.  As a result, the Court held that the hearing justice did not abuse his discretion in granting the town’s emergency motion for relief.

Finally, the Court deemed any argument relating to the hearing justice’s dismissal of counts 1 and 2 of the plaintiff’s amended complaint to have been waived.
12-32212-322.pdfNarragansett Indian Tribe v. State of Rhode Island and UTGR, Inc. d/b/a Twin River and Newport Grand, LLC (Intervenors), No. 12-322 (March 4, 2015)
The plaintiff, Narragansett Indian Tribe (Tribe), appealed the entry of partial summary judgment against its challenge to the facial constitutionality of the 2011 Casino Act G.L. 1956 chapter 61.2 of title 42 (Casino Act). The Tribe argued that the Casino Act violated article 6, section 15 of the Rhode Island Constitution, which provides that “[a]ll lotteries shall be prohibited in the state except lotteries operated by the state * * *.”  Additionally, the Tribe asserted that the Casino Act was unconstitutionally vague and in violation of the non-delegation doctrine embodied in sections 1 and 2 of article 6 of the Rhode Island Constitution.

The Supreme Court held that the Casino Act was not facially unconstitutional because it vested the state with “full operational control” and the “authority to make all decisions about all aspects of the functioning of the business enterprise * * *.”  Additionally, the Court noted that the Casino Act contains a clause which provides that the state shall “[h]old all other powers necessary and proper to fully effectively execute and administer the provisions of” the Casino Act.
 
The Supreme Court declined to take into consideration subsequent legislation and materials produced by the state in connection with the Casino Act that were not addressed by the hearing justice, leaving these matters to be addressed in the context of the Tribe’s as-applied challenge, which remains pending in the Superior Court.
14-14814-148.pdfIn the Matter of Keven A. McKenna, No. 14-148 (February 27, 2015)
This attorney disciplinary matter came before the Supreme Court pursuant to a recommendation of the Disciplinary Board of the Rhode Island Supreme Court (board) that the respondent, Keven A. McKenna, be suspended from the practice of law for a period of one year.  This recommendation stemmed from McKenna’s misconduct in: engaging in the unauthorized practice of law as a limited liability entity; failing to disclose his income and  misrepresenting his interest in a receivable to the United States Bankruptcy Court for the District of Rhode Island; engaging in conduct that amounted to a lack of candor, dishonesty, and misrepresentation to the bankruptcy trustee; failing to keep and provide records that were subpoenaed by Assistant Disciplinary Counsel; and engaging in conduct during proceedings in the Workers’ Compensation Court and Bankruptcy Court that demonstrated a lack of candor and an attempt to disrupt these tribunals.
  
A three-member panel of the board conducted eight hearings on this matter and found that McKenna had violated Article V, Rules 1.19, 3.3, 3.5, 7.1, 7.5, and 8.4 of the Supreme Court Rules of Professional Conduct.  The board adopted the findings of the panel and submitted its recommendation to the Supreme Court.  McKenna then filed two motions to dismiss, a motion to stay the proceedings pursuant to G.L. 1956 § 9-33-2, and a motion to recuse the justices of the Supreme Court.  Throughout the proceedings, McKenna challenged the authority of the Supreme Court to regulate attorneys, as well as its and the board’s jurisdiction over matters of attorney discipline, and he alleged that the proceedings before the board and the Supreme Court violated his procedural due process rights.
  
The Supreme Court denied McKenna’s motions and adopted the recommendation of the board.  The Court held that it had jurisdiction over attorney disciplinary matters and that McKenna’s due process rights had not been compromised by the disciplinary process.  The Supreme Court further held that McKenna had failed to establish any facts warranting recusal, and that § 9-33-2 was inapplicable to attorney disciplinary proceedings.  The Supreme Court agreed with the board’s findings of misconduct and ordered that McKenna be suspended from the practice of law for a period of one year.
12-25712-257.pdfJoseph Laplante et al. v. Rhode Island Hospital et al., No. 12-257 (February 25, 2015)
The plaintiff, Joseph Laplante, appealed pro se from the Providence County Superior Court’s grant of summary judgment in favor of the defendants, Rhode Island Hospital, Lifespan, Inc., Frantz J. Gibbs, M.D., and Michael P. Bradley, M.D.  On appeal, the plaintiff argued that the hearing justice in this case:  (1) overlooked genuine disputes as to material facts that would preclude summary judgment; (2) failed to apply the doctrine of res ipsa loquitur; and (3) erred in granting summary judgment in light of what the plaintiff characterized as the egregious conduct of his attorney in the Superior Court.

The Supreme Court held that, because the plaintiff was barred from presenting expert testimony due to his conduct during the discovery phase of litigation, he would not be able to demonstrate any genuine dispute as to a material fact considering the complexity of his medical malpractice claim.  In addition, the Supreme Court held that the hearing justice correctly found that the doctrine of res ipsa loquitur did not apply to the plaintiff’s claims, primarily because the plaintiff was barred from presenting expert testimony and the defendants’ alleged negligence was not so obvious as to be evident to a layperson.  Finally, the Supreme Court held that the plaintiff waived any claim stemming from alleged attorney misconduct in light of his failure to raise it before the hearing justice.  Consequently, the Supreme Court affirmed the hearing justice’s grant of the defendants’ motion for summary judgment.
13-34413-344.pdfFerris Avenue Realty, LLC v. Huhtamaki, Inc., et al., No. 13-233 (February 25, 2015)
This case arose from the refusal of the defendant, Huhtamaki, Inc. (Huhtamaki), to indemnify the plaintiff, Ferris Avenue Realty, LLC (Ferris), after Ferris incurred costs related to the cleanup of hazardous substances.  After a thirteen-day trial, a jury found in favor of Ferris.  On appeal, Huhtamaki argued that the trial justice erred in: (1) finding that Ferris provided sufficient notice to Huhtamaki in accordance with the parties’ Indemnity Agreement; (2) admitting certain testimony from an expert witness; (3) admitting allegedly spoliated evidence; (4) instructing the jury; and (5) permitting Ferris to rely upon what Huhtamaki contended was “a pyramid of inferences” as Ferris sought to prove its case.

The Supreme Court held that:  (1) Huhtamaki received actual notice; (2) the trial justice properly exercised his discretion in permitting Ferris’s expert witness to testify with respect to the presence of hazardous substances on the property in question; (3) the trial justice did not commit reversible error in admitting the allegedly spoliated evidence; (4) Huhtamaki’s claims of error with respect to the charge to the jury were either unfounded or unpreserved; and (5) Huhtamaki’s argument that Ferris relied upon an impermissible “pyramid of inferences” was meritless.

Accordingly, the Supreme Court affirmed the judgment of the Superior Court.
13-5313-53.pdfBruce Brayman Builders, Inc. v. James M. Lamphere, in his capacity as Town Planner for the Town of Hopkinton, No. 13-53 (February 13, 2015)
This case arose from a dispute over a preliminary plan application for a minor subdivision submitted by the plaintiff, Bruce Brayman Builders, Inc. (Brayman).  The defendant, James M. Lamphere, in his capacity as Town Planner for the Town of Hopkinton, refused to certify Brayman’s application as complete due to unpaid personal property taxes; that refusal was premised upon the defendant’s interpretation of the pertinent regulations as requiring that both the personal property taxes and real property taxes of an applicant must be paid up.  Brayman, contending that said requirement applied only to real property taxes, sought declaratory relief to that effect from the Superior Court.  The parties eventually cross-moved for summary judgment with respect to the proper interpretation of the term “property taxes.”  The trial justice denied both motions and then sua sponte denied Brayman’s request for declaratory relief due to what the trial justice described as Brayman’s failure to have exhausted its administrative remedies.
  
The Supreme Court held that the trial justice abused his discretion in sua sponte relying upon the administrative exhaustion doctrine to deny Brayman declaratory relief where neither party had briefed or argued the issue of administrative exhaustion at the summary judgment stage.  Accordingly, the Court vacated the judgment of the Superior Court.
13-25313-253.pdfDawn L. Huntley v. State of Rhode Island et al., No. 13-253 (February 12, 2015)
The plaintiff, Dawn L. Huntley, and her attorney, Nicholas S. Gelfuso, jointly appealed from a final judgment entered in favor of the defendants.  On appeal, the appellants contended that the hearing justice erred in:  (1) vacating the entry of default against the defendant Alan Goulart; (2) denying Ms. Huntley’s applications for entry of default against the defendants Gerald Coyne and Patrick Lynch; and (3) imposing a monetary sanction upon Attorney Gelfuso pursuant to Rule 11 of the Superior Court Rules of Civil Procedure.
  
The Court first determined that the hearing justice acted correctly in removing the entry of default against Mr. Goulart and in denying the applications for default against Mr. Coyne and Mr. Lynch; the Court predicated that determination on the fact that its April 2013 decision barring Ms. Huntley’s claims on the basis of res judicata applied to the above defendants.  Additionally, the Court discerned no abuse of discretion in the monetary sanction imposed by the Superior Court upon Attorney Gelfuso in light of the hearing justice’s careful review of the record and Attorney Gelfuso’s rather egregious misrepresentations.
13-28113-281.pdfState v. Ana M. Cruz, No. 13-281 (February 11, 2015)
The defendant, Ana M. Cuz, appealed from a Superior Court judgment of conviction, having been found guilty on two counts: (1) resisting arrest in violation of G.L. 1956 § 12-7-10; and (2) disorderly conduct in violation of G.L. 1956 § 11-45-1. The defendant contended that her Sixth Amendment right to counsel, guaranteed by the United States and Rhode Island Constitutions, was violated when the trial justice allowed her to represent herself at trial without first determining whether she had made a knowing and intelligent waiver of her right to counsel.

Midway through jury selection, the defendant informed the trial justice that she wanted to waive her right to counsel and proceed pro se at trial. The trial justice engaged in a detailed colloquy with the defendant to make her aware of the potential risks of self-representation. Notwithstanding this colloquy, the defendant’s appellate argument asserted that her waiver of counsel was constitutionally deficient because it was not made knowingly and intelligently. After careful consideration, the Supreme Court concluded that the record established the defendant’s voluntary, knowing, and intelligent waiver of counsel. Accordingly, the Court affirmed the judgment of the Superior Court.
13-10213-102.pdfHeritage Healthcare Services, Inc., et al. v. The Beacon Mutual Insurance Co., et al., No. 13-102 (February 6, 2015)
The plaintiffs, a certified class of approximately 14,000 policyholders of The Beacon Mutual Insurance Company (Beacon), appealed a Superior Court judgment that dismissed their complaint.  The plaintiffs alleged that from September 2001 to March 2006, Beacon engaged in a systematic scheme to divert over $101 million to a small percentage of its policyholders rather than distributing it equitably to all its policyholders.  The plaintiffs further alleged that Beacon ceased formally declaring and distributing annual dividends from 2002 until 2004 and instead charged inequitable and unauthorized lower premiums, referred to as consent-to-rate discounts, to certain of its largest policyholders, instead of filing lower rates for all its policyholders.  As a result, the plaintiffs concluded that because of the consent-to-rate discounts, they were denied money that should have been equitably distributed to all policyholders as dividends.
On appeal, the plaintiffs argued that the hearing justice erred when he held that their claims were derivative in nature and when he dismissed their complaint for not satisfying the procedural requirements associated with a derivative action. 
The plaintiffs argued that their claims were direct, because governing law entitled them to an equitable distribution of the excess surplus of the company and because they suffered disproportionate harm as compared to other policyholders.   Further, the plaintiffs argued that Beacon’s failure to formally declare a dividend does not transform the nature of their claims from direct to derivative.  Finally, the plaintiffs insisted that the hearing justice erred in holding that Beacon was authorized to distribute consent-to-rate discounts to its policyholders.
  
The Supreme Court determined that governing law did not entitle the plaintiffs to an equitable distribution of Beacon’s excess surplus because the complaint alleged that Beacon diverted $101 million as consent-to-rate discounts.  Therefore, Beacon never collected the $101 million and that money never became excess surplus that could have been equitably distributed.  Next, the Supreme Court determined that, even if the $101 million had been collected, the plaintiffs would not have necessarily been entitled to an equitable distribution because Beacon’s authority to issue dividends was discretionary.  Finally, the Supreme Court found that, assuming Beacon was not authorized to issue consent-to-rate discounts would not transform the plaintiffs’ claims into direct claims.
 
Accordingly, the Supreme Court affirmed the judgment of the Superior Court.
12-31912-319.pdfKristopher Plante et al. v. Daniel Stack et al. v. Bella Restaurant, No. 2012-319 (February 6, 2015)
The defendants, Daniel Stack and the Disabled American Veterans Department of Massachusetts, Inc., petitioned for a writ of certiorari seeking review of three Superior Court rulings in the underlying negligence action.  On appeal, the defendants requested that the Court reverse the hearing justice’s rulings: (1) denying the defendants’ motion to compel additional testimony from the Plante family; (2) granting the plaintiffs’ motion for a protective order limiting the defendants’ planned neuropsychological examination of the plaintiff; and (3) revoking defense counsel’s pro hac vice admission.
  
The petition for certiorari was denied in part and granted in part.  The Supreme Court affirmed the denial of the defendants’ motion to compel additional testimony from the Plante family as well as the portion of the protective order allowing for one non-attorney representative to be present during the testing phase of the neuropsychological examination, and it quashed the writ of certiorari as to those issues.  The Court granted certiorari, however, as to the rulings that no history was allowed be taken by the defendants’ neuropsychologist and that the plaintiffs’ counsel was allowed to be present during the testing phase of the examination.  Those portions of the protective order were quashed.  Finally, the Court granted certiorari on the revocation of defense counsel’s pro hac vice admission and quashed the ruling as to that issue. 
13-135, 136, 13713-135, 136, 137.pdfMary Lou Dauray v. Gabrielle D. Mee (a/k/a Gabrielle Malvina Mee);Mary Lou Dauray, as heir-at-law of Gabrielle D. Mee, and on behalf of the Estate of Gabrielle D. Mee v. Legion of Christ et al.; Mary Lou Dauray, as heir-at-law of
These three separate appeals are brought by the plaintiff, Mary Lou Dauray (Dauray), challenging the Superior Court’s grant of summary judgment determining that she did not have standing to maintain the actions.  The three appeals brought by Dauray are: (1) an appeal of a probate court order admitting the will of Dauray’s aunt, Gabrielle D. Mee (Gabrielle), claiming that the will was executed through undue influence, fraud, and mistake in the inducement; (2) an appeal from a suit claiming that Gabrielle was unduly influenced and fraudulently induced into giving approximately $60 million in lifetime gifts to the Legion of Christ North America, Inc. (Legion of Christ); and (3) an appeal from an action alleging that Bank of America, N.A., as successor-in-interest by merger or otherwise to Fleet National Bank, breached its fiduciary duties as trustee of multiple trusts set up by Gabrielle and her husband.
  
In these three appeals, Dauray argued that the trial justice was incorrect in his determination that Dauray was not a person legally interested in the estate and, thus, did not have standing either under the common law or pursuant to G.L. 1956 § 33-18-17.  Dauray argued that the mere fact that she was an heir-at-law of Gabrielle meant that she had standing.  Furthermore, Dauray asserted that the trial justice abused his discretion when he conditioned the filing of Dauray’s amendment to her reasons for appeal of the probate court decision upon the payment of attorneys’ fees associated with taking the prior deposition of Dauray pursuant to G.L. 1956 § 33-23-1(a)(2).
    
The Supreme Court affirmed the trial justice with respect to his determination that Dauray lacked standing to challenge the will of Gabrielle.  The Court determined that, because there was a valid and enforceable residuary clause, even if partial intestacy did result, the residuary beneficiaries would be eligible to take; and, thus, Dauray had no possibility of inheriting from the will.  Because of this determination, the Court concluded that Dauray could not be a person legally interested in the estate of Gabrielle; and therefore, she did not have standing pursuant to § 33-18-17.  However, the Court determined that the trial justice abused his discretion in awarding attorneys’ fees as a condition of amending Dauray’s reasons for appeal of the probate court decision because the imposition of retrospective attorneys’ fees did not comport with what was right and equitable under the circumstances.

Accordingly, the Supreme Court affirmed in part and vacated in part the judgment of the Superior Court.
    
Justice Flaherty did not participate.
13-12413-124.pdfState v. Victor Arciliares, No. 13-124 (January 26, 2015)
The defendant, Victor Arciliares, appealed from a judgment of conviction entered after a jury trial in Providence County Superior Court.  The defendant was found guilty of five offenses, most notably murder in the first degree, in violation of G.L. 1956 § 11-23-1.  The defendant contended that the trial justice erred when he curtailed the extent to which the defendant was allowed to cross-examine a key prosecution witness.  The defendant claimed that the exclusion of the proffered evidence was reversible error and merits a new trial.
 
The defendant was on trial for murder and other violent offenses that arose out of his alleged involvement with the shooting death of Alfredo Barros on October 30, 2010, in Pawtucket.  The gun that fired the fatal bullets was never found.  Similarly, the car that eyewitnesses said they saw at the scene of the shooting was never found.  The police officers who investigated the case had few leads for months after the shooting, and little information was released to the public.  The break in the case came when an informant told an investigator at the Adult Correctional Institutions (ACI) that he had information about the murder.  This informant implicated the defendant by claiming that the defendant had divulged to him details of the murder in the form of a confession.
  
The state’s case consisted mainly of this one key witness.  The state argued that the defendant would only have been privy to the details of the murder because he was in fact guilty of the crime.  The defendant claimed that he knew of the details because he was questioned by a Pawtucket Police detective in the course of the investigation.  When this detective was on the stand, the defendant was prevented from asking him what details of the murder he told to the defendant at their meeting.  The judge sustained the state’s objection to the testimony on the grounds that the testimony violated the rule set forth in State v. Harnois, 638 A.2d 532, 535-36 (R.I. 1994), which would not allow the defendant to ask witnesses about statements the defendant himself had made.
 
On review, the Supreme Court found that the testimony the defendant desired to elicit from the detective was not barred by Harnois, because the defendant sought for the detective to recount his own statements, as opposed to the defendant’s statements.  The Supreme Court held that the desired testimony was relevant because it might have shown that the defendant was told many of the details about the murder without being involved himself.  This testimony would have allowed the defendant to argue that the informant heard these details in an innocent conversation with the defendant and the informant then fabricated his testimony to extract favorable treatment from the state.

Accordingly, the restriction of cross-examination was an error by the trial justice because it undercut the defendant’s strongest defense.  Consequently, the Supreme Court vacated the defendant’s convictions.  The case will be remanded to the Superior Court for a new trial.
13-369, 13-37013-369, 13-370.pdfCarol A. Maccarone v. Raymond J. Maccarone, Jr., Nos. 13-369, 13-370 (January 26, 2015)
The defendant, Raymond J. Maccarone, Jr., appealed from a Family Court judgment entered in favor of the plaintiff, Carol A. Maccarone, enforcing a property settlement agreement that was incorporated but not merged into the parties’ final judgment of divorce.  The plaintiff cross-appealed the denial of her motion to dismiss the defendant’s appeal.  The defendant, who did not retire upon reaching the age of eligibility, argued that the Family Court justice should not have awarded the plaintiff her share of his pension benefits, plus interest, because the property settlement agreement clearly set the valuation date as the date of his retirement.

The Supreme Court found that the property settlement agreement was ambiguous, reasoning that it was open to more than one reasonable interpretation and that, as such, the Family Court justice properly resolved the ambiguity based on the principles of equitable distribution.  The Court also held that interest was properly awarded, as Raymond’s failure to place $25,000 in an escrow account constituted a breach of contract, thus triggering the application of interest under G.L. 1956 § 9-21-10.  Finally, the Court remanded the issue of attorney’s fees to the Family Court, and directed it to address the basis for such an award and the calculation thereof.

In light of the affirmance of the Family Court judgment in the plaintiff’s favor, the Court concluded that her cross-appeal was moot and elected not to decide it.
13-262-12-12713-262-12-127.pdfRafael Genao v. Litton Loan Servicing, L.P. et al., Nos. 13-262, 12-127 (January 16, 2015)
The plaintiff, Rafael Genao, appealed from the Superior Court’s entry of summary judgment against him and in favor of the defendants Litton Loan Servicing, L.P. (Litton) and Deutsche Bank, National Trust Company (Deutsche Bank).  In a related matter, the Supreme Court granted Mortgage Electronic Registration Systems, Inc.’s (MERS) petition for a writ of certiorari, which sought review of a Superior Court order denying its motion for a protective order.  The plaintiff had executed a note and mortgage on his commercial real property with Equity One Mortgage Company (Equity One) as the lender and MERS as the named mortgagee.  When the plaintiff failed to make timely payments, foreclosure proceedings were initiated.  The plaintiff filed an action in the Superior Court seeking a declaratory judgment, injunctive relief, an order quieting title, and compensatory damages, and sought to depose a MERS designee.

Before this Court, MERS contended that the hearing justice should have granted its motion for a protective order quashing the deposition because the plaintiff had no standing to challenge the validity of an assignment to which he was neither a party nor a third party beneficiary.  In the wake of adopting the rationale of the United States Court of Appeals for the First Circuit in Wilson v. HSBC Mortgage Services, Inc., 744 F.3d 1 (1st Cir. 2014), the Court rejected the plaintiff’s claim of standing on the ground that a corporate officer acting outside the scope of his or her authority creates a voidable contract that can still be ratified by the corporation, and it found that the hearing justice erred in denying the motion for a protective order.  The Court, therefore, quashed the denial of the motion for a protective order.  The Court further held that, even assuming that the plaintiff had standing to challenge the assignment, there was no basis for overturning the grant of summary judgment in favor of Litton and Deutsche Bank, and it affirmed the judgment of the Superior Court.  

13-8913-89.pdfKevin R. Hough v. Shawn P. McKiernan et al., No. 13-89 (January 16, 2015)
Kevin R. Hough was severely injured when he was punched by Shawn P. McKiernan, the force of the blow causing Hough to fall backwards and strike his head on the pavement of a street.  Immediately prior to this incident, McKiernan had driven by Hough on several occasions in an automobile owned by one Rita Bower, flashing the high beams and taunting Hough as he drove past.

Among the defendants sued by Hough was Quincy Mutual Fire Insurance Company (Quincy), the insurer of the vehicle driven by McKiernan. Hough alleged liability under the provisions of G.L. 1956 § 31-33-6, which imputes vicarious liability upon the owner of a vehicle for its consensual use or operation.  Hough appealed from a Superior Court judgment as a matter of law in favor of Quincy.  Hough argued that the trial justice erred in finding that Quincy was shielded from liability under an exemption pursuant to § 31-33-6.  Quincy asserted that the ruling below was proper because Hough’s injuries did not result from an accident involving the insured motor vehicle.
 
The Supreme Court affirmed the Superior Court’s judgment as a matter of law in favor of Quincy, but it did so on different grounds from those relied on by the trial justice.  The Court held that there must be a causal relationship between the operation and use of the motor vehicle and the injuries sustained by a plaintiff in order to impute liability to the vehicle owner under § 31-33-6.  Because Hough failed to demonstrate such a causal connection between the vehicle and his injuries, the Supreme Court affirmed the judgment of the Superior Court

13-35213-352.pdfWayne Bitgood v. Gordon Greene Post Number 27 of the American Legion, No. 2013-352 (January 16, 2015)
A barroom altercation led to a jury verdict awarding $448,130 in damages to the plaintiff, Wayne Bitgood, on his negligence claim against Gordon Greene Post Number 27 of the American Legion, the owner of the premises on which the altercation occurred.  The jury also determined that the plaintiff’s own negligence was a proximate cause of his injuries and attributed twenty percent of the overall negligence to him.  The Superior Court denied the defendant’s posttrial motion for a new trial and/or remittitur for reapportionment of the plaintiff’s comparative negligence.  The defendant appealed the Superior Court judgment, contending that the trial justice erred by denying the motion.  The Supreme Court upheld the denial of the defendant’s motion because the trial justice properly considered the motion and neither overlooked nor misconceived material evidence. 

Accordingly, the Supreme Court affirmed the judgment of the Superior Court. 
13-31813-318.pdfPatricia Pacheco v. Nestor Marulanda, No. 13-318 (January 14, 2015)
The defendant, Nestor Marulanda, appealed a Family Court order modifying his visitation with the parties’ minor child.  After the defendant was charged with breaking and entering the plaintiff’s home and pilfering her jewelry, a consent order was entered that granted the defendant supervised visitation with the child.  The consent order directed that the supervision was to be provided by the defendant’s parents.  Subsequently, the plaintiff filed an expedited motion to suspend the defendant’s visitation, alleging that the defendant’s visitations had been unsupervised in direct contravention of the consent order.  At a hearing held by a justice of the Family Court, the defendant conceded to three separate incidents when he was with the minor child, unsupervised by his parents.  As a result, the Family Court found the defendant in contempt of the consent order and modified the defendant’s visitation rights to require that any and all visitation take place at the courthouse.

On appeal, the defendant argued that the hearing justice abused his discretion in modifying his visitation.  Specifically, the defendant argued that the hearing justice erred because the consent order could have easily been misconstrued by him.  Further, the defendant argued that the hearing justice erred in finding him in contempt because he believed his visitation did not need to be supervised.  Finally, the defendant appealed the remedy that was imposed following the hearing justice’s finding of contempt.

The Supreme Court held that the consent order was valid and enforceable.  Next, the Supreme Court held that the hearing justice properly exercised his discretion when he found the defendant in contempt as a result of his engaging in unsupervised visitations.  Finally, the Supreme Court held that the remedy imposed by the hearing justice was within his bounds of discretion and contemplated the best interests of the child.

Accordingly, the Supreme Court affirmed the order of the Family Court.  
13-19013-190.pdfAnn Marie DiLibero v. Mortgage Electronic Registration Systems, Inc., et al., No. 13-190 (January 14, 2015)
The plaintiff, Ann Marie DiLibero, appealed a Superior Court judgment dismissing her complaint against the defendants Mortgage Electronic Registration Systems (MERS), UBS Real Estate Securities, Inc. (UBS), USA Residential Properties (USA Residential), and Rushmore Loan Management Services, LLC (Rushmore).  The plaintiff had executed a mortgage, using her Foster home as collateral, with New Century Mortgage Corporation (New Century) as the lender and MERS as the named mortgagee.  In April 2007, New Century filed for bankruptcy.  Approximately two years later, MERS assigned its interest in the mortgage to UBS.  Likewise, UBS assigned the mortgage to USA Residential.  Upon entering default for failure to make timely payments, Rushmore, USA Residential’s loan servicer, began foreclosure proceedings.  The plaintiff filed an action seeking injunctive relief, a declaration that the mortgage assignments were void and the foreclosure sale was invalid, and to quiet title to the property.
  
The defendants, in lieu of an answer, filed a motion to dismiss under Rule 12(b)(6) of the Superior Court Rules of Civil Procedure.  The hearing justice granted the motion to dismiss finding that the plaintiff lacked standing to challenge the assignments of the mortgage, but that even if she had standing, the assignments were valid and the foreclosure proper.

On appeal, the plaintiff advanced a number of arguments in an attempt to demonstrate why the dismissal of her complaint was premature.  First, the plaintiff argued that the hearing justice did not use the correct legal standard when deciding the motion to dismiss.  Next, the plaintiff argued that the hearing justice erred in dismissing her complaint because she adequately alleged that the assignments of the mortgage, from MERS to UBS and from UBS to USA Residential, were invalid.
 
The Supreme Court concluded that, based upon the facts as alleged in the complaint, the plaintiff adequately stated a claim upon which relief may be granted.  The plaintiff alleged that the assignments of the mortgage were invalid because New Century filed for bankruptcy two years before the first assignment of the mortgage was executed.  As a result, the plaintiff alleged that New Century’s MERS membership had been terminated, thereby prohibiting MERS from continuing to act as its nominee to assign the mortgage.  The Supreme Court found that crediting the allegations of the plaintiff’s complaint as true, when New Century filed its rejection of the executory contract with MERS, the contract was breached and its relationship with MERS was terminated; therefore, the subsequent assignment of the mortgage executed by MERS to UBS would be void ab initio because the assignor, MERS, had nothing to assign.

Accordingly, the Supreme Court vacated the Superior Court’s dismissal.

13-14613-146.pdfRoderick A. McGarry v. Marilyn Pielech et al., No. 13-146 (January 14, 2015)
The plaintiff, Roderick A. McGarry, appealed from the denial of his motion for a new trial after a jury verdict entered in favor of the defendant Marilyn Pielech, in her capacity as Treasurer and Finance Director of the Town of Cumberland (town), in a suit alleging age discrimination in hiring.  The plaintiff contends that the town discriminated against him because of his age when making its hiring decisions for a pair of English teaching positions for the 1998-1999 school year.  The plaintiff was fifty-six years of age at the time of his application and both successful candidates were under the age of forty.  In pursuing his claim, the plaintiff discovered that his personnel file did not contain notes and rating sheets of his performance in his interview for those positions.  The plaintiff felt that those notes would show that he was equally qualified as the younger successful candidates.  The defendant never produced these interview notes, and the trial justice gave an instruction on spoliation of the evidence to the jury, allowing them to infer that the notes were harmful to the defendant’s case.  Nevertheless, the jury returned a verdict for the defendant.  The plaintiff sought a new trial, but his motion was denied.  The plaintiff appealed that denial to the Supreme Court alleging three errors.

The plaintiff argued three errors of law which he believed demanded a new trial: the failure to allow him to question witnesses about a letter the defendant’s counsel had written concerning the case, the failure to instruct the jury on a federal regulation and a state statute concerning document retention and inspection, and the failure to allow him to pursue his retaliation claim.  The Supreme Court concluded that these arguments were without merit.
  
First, the trial justice reasoned that the letter’s probative value on the discrimination claim was substantially outweighed by the danger of confusing the issues and misleading the jury.  The Supreme Court found no error in the trial justice’s use of discretion and the resultant exclusion of the letters.  Second, the trial justice ruled that the two laws on which the plaintiff proposed she instruct the jury were inapplicable to the case at hand and that therefore an instruction on them would not have accurately stated the law for the jury.  In reviewing the record, the Supreme Court found no error in the trial justice’s ruling.  Third, the plaintiff had waived further litigation of his retaliation claim when he failed to appeal a judgment as a matter of law, pursuant to Rule 50 of the Superior Court Rules of Civil Procedure, granted to the defendant on the retaliation claim after the plaintiff’s first trial.  The Supreme Court demands that parties address all arguments in their briefs, or that issue will be considered waived.  The plaintiff’s appeal after his first trial did not contest the judgment granted to the defendant on the retaliation claim, and therefore it was correct for the trial justice to conclude that the second trial would not contain such a claim.

Accordingly, the Supreme Court affirmed the Superior Court’s denial of a new trial.

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Checked Out To: Ferris, MirellaLina Cruz v. Mortgage Electronic Registration Systems, Inc., et al., No. 12-136 (January 13, 2015)
The defendant, Mortgage Electronic Registration Systems, Inc. (MERS), petitioned for a writ of certiorari seeking review of a Superior Court decision denying its motion for a protective order as to discovery sought by the plaintiff, Lina Cruz (Cruz).  Cruz had executed a mortgage on her Johnston home with New Century Mortgage Corporation as the lender and MERS as the named mortgagee.  MERS subsequently transferred its interest in the mortgage to ACT Properties, LLC (ACT Properties), which then assigned its interests in the mortgage to USA Residential Properties, LLC (USA Residential).  When Cruz failed to make timely payments, Rushmore Loan Management Services, LLC, acting on behalf of USA Residential, initiated foreclosure proceedings. Cruz responded by filing an action in the Superior Court seeking a declaratory judgment, injunctive relief, an order quieting title, and compensatory damages.  The complaint also sought a declaration that the assignment from MERS to ACT Properties was invalid because the signer was unauthorized.

Before this Court, MERS contended that the hearing justice should have granted its motion for a protective order because Cruz had no standing to challenge the validity of an assignment to which she was neither a party nor a third-party beneficiary.  MERS argued that any contention that the signer lacked the requisite authority would render the assignments, at most, voidable, instead of void.

Adopting the holding of the United States Court of Appeals for the First Circuit in Wilson v. HSBC Mortgage Services, Inc., 744 F.3d 1 (1st Cir. 2014), the Supreme Court limited standing to those instances where a homeowner challenges a mortgage assignment as void.  The Court reasoned that a corporate officer acting outside the scope of his or her authority creates a voidable contract that can still be ratified by the corporation.  As a result, the Court held that, even if successful, Cruz’s challenge to the signer’s authority would merely render the assignment voidable at the election of one of the parties to the assignment.  Because Cruz was not a party to the assignment, she lacked standing to challenge it, and her attempts to engage in corresponding discovery were barred.
  
Having concluded that Cruz lacked standing to challenge the signer’s authority, the Court found that the hearing justice erred in denying the motion for a protective order.  As such, the hearing justice’s denial of the motion for a protective order was quashed.
14-514-5.pdfVirginia B. Kinder, individually and in her capacity as Trustee of the Virginia B. Kinder Trust v. Jil Westcott et al., No. 14-5 (January 12, 2015)
This case came before the Supreme Court on December 4, 2014, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not summarily be decided.  The plaintiff, Virginia B. Kinder, filed this action, seeking a declaratory judgment to quiet title to a right-of-way and damages for trespass.  The defendant, Jil Westcott, counterclaimed that her right of access derived from an instrument expressly granting an easement appurtenant.  The defendant moved for summary judgment; and, at a hearing on October 1, 2013, the Superior Court granted summary judgment:  declaring that the defendant had established the existence of an express easement appurtenant.  The plaintiff appealed.  After hearing the arguments of counsel and examining the memoranda submitted by the parties, the Supreme Court determined that cause had not been shown and that this case could be decided without further briefing or argument.  The Court held that pursuant to the express terms of the recorded instrument creating the easement, the easement was freely assignable and granted an easement appurtenant.  Therefore, the Court affirmed the judgment of the Superior Court.
13-15013-150.pdfCity National Bank, successor-in-interest to Imperial Capital Bank v. Main and West, LLC et al., No. 13-150 (January 12, 2015)
This case came before the Supreme Court for oral argument on December 4, 2014, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not summarily be decided.  Main and West, LLC, Thomas C. Riley, and Deborah J. Stebenne (collectively, defendants) contended that the trial justice erred in granting summary judgment in favor of City National Bank (plaintiff).  The defendants assert that the trial justice erred in granting the plaintiff’s motion for summary judgment because he considered, among other documents, an exhibit that was viewed in camera, without having afforded defense counsel an opportunity to review it.  After carefully reviewing the record, the Supreme Court was satisfied that this appeal could be resolved without further briefing or argument.  The Court determined that it was inappropriate for the trial justice to review and rely on a document not shown to defense counsel.  Accordingly, the Court vacated the judgment and remanded this case to the Superior Court with directions for the Superior Court to conduct a new hearing on the plaintiff’s motion for summary judgment, after defense counsel is afforded an opportunity to review the redacted document previously viewed in camera. 
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Checked Out To: Perez, KimTown of North Kingstown v. International Association of Firefighters, Local 1651 AFL-CIO, et al., No. 13-44, 13-66, 13-96 (January 9, 2015)

These consolidated appeals arise out of a decision of the Superior Court issuing various declaratory and injunctive relief in a highly contested labor dispute between the town and the union regarding the town’s decision to reorganize the platoon structure of its fire department.  The Supreme Court affirmed the hearing justice’s determination that the union had waived its right to submit unresolved issues to interest arbitration.  Further, the Supreme Court held that the interest arbitration panel did not have jurisdiction to decide unresolved issues between the parties or to pass upon the effects of the town’s decision to reorganize the platoon structure.

In light of the union’s awareness of the town’s desire to implement the platoon structure reorganization from the prior year’s arbitration proceedings, the Union’s failure to timely comply with G.L. 1956 § 28-9.1-13, the town’s formal proposal of the platoon structure reorganization during bargaining, and the union’s failure to timely submit unresolved issues to interest arbitration pursuant to § 28-9.1-7, the Supreme Court held that the town’s actions in implementing the platoon structure reorganization were lawful.  Therefore, the Supreme Court vacated the injunction that purported to prevent the platoon structure reorganization.

Accordingly, the Supreme Court affirmed in part and reversed in part the judgment of the Superior Court.

12-15712-157.pdfTheodore J. Fabrizio, Jr. v. City of Providence et al., Stephen J. Deninno, Jr. v. City of Providence et al., No. 12-157 (December 19, 2014)
The petitioners, former Providence Mayor Vincent A. Cianci, Jr. and former Chief of the Providence Fire Department James Rattigan, sought review on certiorari of an order by the Superior Court denying without prejudice their motion for summary judgment.  The underlying dispute arose after the respondents, Theodore J. Fabrizio, Jr. and Stephen J. Deninno, two Providence firefighters, objected to orders from the Fire Department that they serve as part of the crew of a fire engine in the 2001 Pride Parade.  Following their unwilling participation in the parade, the respondents sued the petitioners, as well as the City of Providence, on a variety of state and federal claims.  Mayor Cianci and Chief Rattigan moved for summary judgment on the surviving two of those claims (regarding freedom of religion, speech, and association), invoking the venerable doctrine of qualified immunity from suit.  The Superior Court held that further development of the pertinent facts was warranted; accordingly, it denied the motion for summary judgment, but it did so without prejudice.
 
The Supreme Court held that the requirement that the respondents participate in the parade as public servants carrying out a regular work assignment was not a deprivation of their constitutional rights.  Therefore, since no deprivation of a constitutional right occurred, the petitioners prevailed as a matter of law without it being necessary to address whether they were qualifiedly immune from suit.  The Superior Court was directed to enter judgment in favor of the petitioners.
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Checked Out To: Ferris, MirellaAnn Marie Maguire v. City of Providence et al., No. 13-304 (November 28, 2014)
The plaintiffs, Emond Plumbing & Heating, Inc. (Emond) and Tecta America New England, LLC (Tecta), appealed a Superior Court judgment that granted the motion of the defendant, BankNewport, for summary judgment and denied the plaintiffs’ cross-motion for summary judgment.  The plaintiffs contracted with a general contractor to act as subcontractors on a construction project for the landowner.  During the course of the project, the landowner defaulted on its loan obligations.  As a result, the defendant reversed a disbursement of loan proceeds to the landowner that was intended to compensate the plaintiffs for their work.  Thereafter, the defendant foreclosed on the property, purchased the building at the foreclosure sale, including the improvements thereon, and decided to use the property as its corporate headquarters.  The plaintiffs filed suit against the defendant seeking to recover under the theory of unjust enrichment.
   
On appeal, the plaintiffs argued that the Superior Court erred when it analyzed their claims under the Uniform Commercial Code (UCC) and the equitable subordination framework applicable to priority disputes between secured and unsecured creditors.  Instead, the plaintiffs argued that their claims should have been analyzed under the theory of unjust enrichment.  The plaintiffs averred that they have sufficiently demonstrated that they conferred a benefit upon the defendant, that the defendant appreciated the benefit, and that the defendant’s acceptance of the benefit, without payment, would be inequitable and unjust.

The Supreme Court determined that the case law on unjust enrichment was dispositive of the instant action; therefore, there was no need to address the plaintiffs’ first argument.  Next, the Supreme Court assumed, without deciding, that the plaintiff had satisfied the first two prongs of the unjust enrichment analysis.  Thus, the Supreme Court stated that the third prong of the analysis—whether it would be inequitable for the defendant to retain any benefit without paying for the value thereof—was dispositive of the instant action.  The Supreme Court held that because of the absence of a contractual relationship between the plaintiffs and the defendant, as well as the lack of any allegation that the defendant engaged in any type of misconduct or fraud, the defendant’s retention of the property, including the improvements thereon, was not inequitable.
  
Accordingly, the Supreme Court affirmed the judgment of the Superior Court.
13-21213-212.pdfEmond Plumbing and Heating, Inc., et al., v. Bank Newport, No. 13-212 (November 28, 2014)
The plaintiffs, Emond Plumbing & Heating, Inc. (Emond) and Tecta America New England, LLC (Tecta), appealed a Superior Court judgment that granted the motion of the defendant, BankNewport, for summary judgment and denied the plaintiffs’ cross-motion for summary judgment.  The plaintiffs contracted with a general contractor to act as subcontractors on a construction project for the landowner.  During the course of the project, the landowner defaulted on its loan obligations.  As a result, the defendant reversed a disbursement of loan proceeds to the landowner that was intended to compensate the plaintiffs for their work.  Thereafter, the defendant foreclosed on the property, purchased the building at the foreclosure sale, including the improvements thereon, and decided to use the property as its corporate headquarters.  The plaintiffs filed suit against the defendant seeking to recover under the theory of unjust enrichment.
   
On appeal, the plaintiffs argued that the Superior Court erred when it analyzed their claims under the Uniform Commercial Code (UCC) and the equitable subordination framework applicable to priority disputes between secured and unsecured creditors.  Instead, the plaintiffs argued that their claims should have been analyzed under the theory of unjust enrichment.  The plaintiffs averred that they have sufficiently demonstrated that they conferred a benefit upon the defendant, that the defendant appreciated the benefit, and that the defendant’s acceptance of the benefit, without payment, would be inequitable and unjust.

The Supreme Court determined that the case law on unjust enrichment was dispositive of the instant action; therefore, there was no need to address the plaintiffs’ first argument.  Next, the Supreme Court assumed, without deciding, that the plaintiff had satisfied the first two prongs of the unjust enrichment analysis.  Thus, the Supreme Court stated that the third prong of the analysis—whether it would be inequitable for the defendant to retain any benefit without paying for the value thereof—was dispositive of the instant action.  The Supreme Court held that because of the absence of a contractual relationship between the plaintiffs and the defendant, as well as the lack of any allegation that the defendant engaged in any type of misconduct or fraud, the defendant’s retention of the property, including the improvements thereon, was not inequitable.
  
Accordingly, the Supreme Court affirmed the judgment of the Superior Court.
13-27413-274.pdfTorrado Architects v. Rhode Island Department of Human Services, No. 13-274 (November 25, 2014)
This appeal came before the Supreme Court on October 30, 2014, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not be summarily decided.  Subsequent to the confirmation of an arbitration award regarding the administrative appeal by the plaintiff, Torrado Architects (Torrado), of a decision of the state’s Chief Purchasing Officer, Torrado filed another petition to compel arbitration against the defendant, Rhode Island Department of Human Services (DHS), for equitable claims.  The trial justice determined that Torrado’s successive petition to compel arbitration was barred by the doctrine of res judicata, and he entered judgment in favor of DHS.  The plaintiff timely appealed the trial justice’s decision.  The Supreme Court determined that cause had not been shown and affirmed the judgment of the Superior Court.
12-28312-283.pdfDeborah Thornley v. Community College of Rhode Island et al., No. 12-283 (November 24, 2014)
The plaintiff in this disability discrimination case, Deborah Thornley, appealed from a Superior Court judgment in favor of the defendants, Community College of Rhode Island, Anita Creamer, Doris Fournier, and the Board of Governors for Higher Education.  The plaintiff was enrolled in the nursing program at the Community College of Rhode Island during the 2003-2004 academic year, while allegedly suffering from chronic headaches, which she treated with the medication Percocet.  During the spring semester of 2004, the plaintiff left the nursing program.  She subsequently filed a civil action against the defendants, claiming that she had been “dropped” from the nursing program because of her disability.  The jury, however, after an eleven-day trial, reached a verdict for the defendants, finding that the plaintiff had failed to prove that she was disabled.

The plaintiff argued on appeal that the trial justice erred by: (1) admitting into evidence a medical report prepared by a neurologist who treated the plaintiff four years after she left the nursing program; (2) excusing a juror on the fourth day of trial; and (3) informing the jury that some of the plaintiff’s claims had been dismissed as a matter of law after the close of evidence.  The Supreme Court held that the trial justice did not err by admitting the medical report into evidence because the report was relevant to the issue of whether the plaintiff was disabled.  The Supreme Court further held that the trial justice was acting well within the parameters of her broad discretionary authority when she excused the juror.  The Supreme Court held that the plaintiff’s final argument on appeal was waived because the plaintiff’s counsel at trial failed to object to the trial justice’s statement at the time it was made.  Accordingly, the Supreme Court affirmed the judgment of the Superior Court. 
13-27313-273.pdfJohn Wells v. R. Suzanne Smith et al., No. 13-273 (November 24, 2014)
This case arose out of claims of negligence brought by the plaintiff, John Wells (plaintiff), alleging that R. Suzanne Smith (Smith) and Michael Ead (Ead) (collectively, defendants), negligently caused the plaintiff’s injuries.  The Supreme Court heard oral argument on October 30, 2014, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not summarily be decided.  A justice of the Superior Court had granted summary judgment in favor of the defendants.  The trial justice determined that the plaintiff had conceded all counts except for counts two, the negligent-hiring claim, and seven, the negligent design, construction, and inspection claim.  With respect to counts two and seven, the trial justice held that Smith could not be found negligent in hiring Ead, because she did not owe a legal duty of care to the plaintiff.  The trial justice also found that Ead owed no duty of care to the plaintiff.  Subsequently, the plaintiff timely appealed.  After hearing the arguments of counsel and reviewing the memoranda of the parties, the Court was satisfied that cause had not been shown and affirmed the judgment of the Superior Court.

Justice Flaherty did not participate.
12-32712-327.pdfState v. Kevin Storey, No. 12-327 (November 24, 2014)
The defendant, Kevin Storey, appealed from a Superior Court judgment of conviction for one count of assault with a dangerous weapon and one count of simple assault and battery.  The defendant was sentenced to a term of fifteen years at the Adult Correctional Institutions, with five years to serve and ten years suspended, with probation. On appeal, the defendant argued that the trial justice erred by: (1) denying his motions for judgment of acquittal and new trial; (2) not allowing him to cross-examine the complaining witness concerning custody issues involving her sons; and (3) imposing an illegal sentence.

The Supreme Court upheld the denial of the defendant’s motions for judgment of acquittal and new trial because the trial justice properly considered the defendant’s motion for a new trial and neither overlooked nor misconceived material evidence.  The Supreme Court also held that the trial justice had not abused her discretion when she limited the scope of the defendant’s cross-examination to exclude the subject of custody issues with the complaining witness’s two eldest sons.  The Supreme Court held that the sentencing issue was not properly before it for review because the defendant had not challenged the sentence in the Superior Court and failed to present extraordinary circumstances that compelled review by this Court.  Accordingly, the Supreme Court affirmed the judgment of the Superior Court.
13-132-14-16413-132-14-164.pdfPawtucket Redevelopment Agency v. Patricia Brown, Nos. 13-132, 14-164 (November 21, 2014)
The defendant, Patricia Brown, appealed from a Superior Court ruling granting the plaintiff, Pawtucket Redevelopment Agency, its motion for a new trial and the setting aside of a jury verdict in favor of the defendant on her counterclaim against the PRA.  The plaintiff also appealed the denial of its renewed motion for judgment as a matter of law.  Having found that the trial justice appropriately carried out her duties under Rule 59 of the Superior Court Rules of Civil Procedure, the Supreme Court affirmed the decision to grant a new trial and set aside the jury verdict on the defendant’s counterclaim.  Additionally, the Supreme Court declined to address the merits of the plaintiff’s appeal because the plaintiff’s notice of appeal was not timely filed.
13-7913-79.pdfPatricia Breggia et al. v. Mortgage Electronic Registration Systems, Inc., et al., No. 13-79 (November 21, 2014)
The plaintiffs, Patricia Breggia and Frank Breggia, Jr., appealed from the Superior Court entry of summary judgment against them and in favor of the defendants Mortgage Electronic Registration Systems, Inc. (MERS) and OneWest Bank, FSB (OneWest).  The plaintiffs had executed a mortgage on their Johnston home with American Mortgage Network, Inc. (AmNet) as the lender and MERS as the named mortgagee.  MERS subsequently transferred its interest in the mortgage to OneWest; and, when the plaintiffs failed to make timely payments, OneWest initiated foreclosure proceedings.  The plaintiffs responded by filing an action in the Superior Court seeking a declaratory judgment, injunctive relief, and compensatory damages.  The complaint sought a declaration that the assignment from MERS to OneWest was invalid, and it also sought to quiet title to the property.

On appeal, the plaintiffs contended that genuine issues of material fact existed as to the ability of MERS to serve as mortgagee without at the same time being the holder of the note, as to the validity of the assignment from MERS to OneWest, and as to the lawfulness of the foreclosure sale.  The plaintiffs also claimed that the hearing justice improperly relied on previous Superior Court decisions.
Citing Bucci v. Lehman Brothers Bank, FSB, 68 A.3d 1069, 1085 (R.I. 2013), the Supreme Court held that MERS was not only the nominee of the lender, but also the mortgagee with the statutory power of sale.  The Court also held that the assignment from MERS to OneWest was valid and consistent with Mruk v. Mortgage Electronic Registration Systems, Inc., 82 A.3d 527, 538 (R.I. 2013).  The Court further held that the foreclosure sale initiated by OneWest was lawfully noticed and conducted.  Finally, the Court rejected the plaintiffs’ contention that the hearing justice improperly relied upon previous Superior Court decisions.
   
Having concluded that these were questions of law properly settled by the hearing justice, the Court affirmed the judgment.
11-35311-353.pdfState v. Brian Verry, No. 11-353 (November 20, 2014)
The defendant, Brian Verry (defendant), appealed from a judgment of conviction of one count of felony assault, for which he received a twenty-year suspended sentence with twenty years of probation; one count of simple assault, for which he received a one-year sentence to be served concurrently with the other sentence imposed; and one count of first-degree child abuse, for which he received a sentence of twenty years, with fifteen years to serve and five years suspended with five years of probation.  In support of his appeal, the defendant argued that the trial justice (1) abused his discretion in refusing to grant a continuance and (2) erred and violated the defendant’s right to present a defense when the trial justice prohibited the defendant’s father from testifying in the defendant’s case-in-chief.  The Supreme Court determined that the trial justice did not err and affirmed the judgment of the Superior Court.
13-30213-302.pdfWilliam J. Nye v. Susan J. Brousseau et al., No. 13-302 (November 19, 2014)
The plaintiff, William J. Nye, appealed pro se from a grant of summary judgment and dismissal in favor of the defendants, Susan J. Brousseau, individually and as trustee, Paul G. Brousseau, individually and as trustee, and The Brousseau Family Trust, concerning an action regarding a parcel of land (judgment parcel) that this Court previously affirmed belonged to the plaintiff.  On appeal, the plaintiff argued that the trial justice erred in dismissing his count to quiet title for failure to comply with an order compelling the plaintiff to produce a title abstract.  The plaintiff additionally argued that the trial justice was incorrect in granting summary judgment on the counts alleging negligence and fraud because the defendants improperly transferred their property to The Brousseau Family Trust.

The Supreme Court held that the trial justice did not abuse her discretion in dismissing the claim to quiet title based on the plaintiff’s failure to comply with the court order, particularly after he disavowed any claim pursuant to G.L. 1956 § 34-16-2. Additionally, the Court determined that no genuine issues of material fact existed and affirmed summary judgment on the counts sounding in negligence and fraud.  Accordingly, the judgment of the Superior Court was affirmed.
11-38911-389.pdfRocco D'Alessio v. State of Rhode Island, No. 11-389 (November 18, 2014)
The applicant, Rocco D’Alessio, appealed a Superior Court denial of his postconviction-relief application.  On April 16, 2002, the applicant was convicted of the second-degree murder of his infant daughter, Gianna D’Alessio.  The medical testimony at trial was that of Dr. Elizabeth Laposata, who gave her opinion that the infant had died due to a violent shaking.  Considering the evidence that the applicant was in sole custody of the infant at the time, the jury concluded that the injuries were inflicted by the applicant and a guilty verdict was returned.  The applicant was sentenced to a term of sixty years, forty years to serve in prison, with the balance suspended with probation.

 In 2007, the applicant filed an application for postconviction relief based on newly discovered evidence that he argued required that his conviction be vacated.  This newly discovered evidence was the existence of a Dr. Richard T. Callery, a medical examiner who had worked on the infant’s autopsy file while employed on a contract basis with Rhode Island’s Office of State Medical Examiners (OSME).  Doctor Callery’s testified before the original trial justice at a three-day hearing for postconviction relief in July of 2011.  Doctor Callery testified that his role at OSME was to review and complete the autopsy files that had been begun and left unfinished by Dr. Samuel A. Livingstone, a medical examiner who no longer worked in the office.  Doctor Callery testified that, when he viewed the D’Alessio file, he was unable to agree with the preliminary conclusion that the infant’s manner of death was homicide by a violent shaking.  Doctor Callery testified that this was due to the poor condition of the file, including its slides and photographs.  However, Dr. Callery was not able to provide a definite conclusion as to the manner of death, nor did he dispute that the file could have been completed in order to confirm the conclusion that the manner of death was a homicide.  In ruling on the application, the hearing justice noted that Dr. Laposata’s trial testimony was definite in her conclusions, backed by her medical experience, and based on a complete file.  Because Dr. Callery’s testimony was not of the type that would ultimately change the verdict at a new trial, the hearing justice denied the application for postconviction relief.

On appeal, the applicant advanced three arguments.  First, applicant contended the hearing justice was clearly erroneous when he ruled that the newly discovered evidence was not material and would not change the verdict at trial.  Second, he alleged the court erred by raising and denying, sua sponte, a claim of ineffective assistance of counsel.  Third, applicant argued that his right to due process was violated when the state withheld evidence from the defense in violation of the applicant’s constitutional rights as set forth in Brady v. Maryland, 373 U.S. 83 (1963).
  
The Supreme Court concluded that the first argument was without merit and that the second and third arguments were not properly before this Court because they were not raised in the postconviction-relief hearing below.  Doctor Callery’s testimony was simply not strong enough to warrant relief and instead was of such a vague and indefinite nature that it could not create a “reasonable probability of a different result.”  Doctor Callery said he did not remember specifically what the file contained, failed to offer a definite conclusion, and ultimately did not provide evidence that meets this Court’s test for materiality.  If Dr. Callery’s testimony were to be offered at trial alongside the testimony of Dr. Laposata, it was not of a type that would likely change the verdict at a new trial.  The Court found no clear error in the hearing justice’s ruling.

Accordingly, the Supreme Court affirmed the Superior Court’s denial of postconviction relief.
12-30912-309.pdfWayne DeMarco et al. v. Travelers Insurance Company et al., No. 12-309 (November 18, 2014)
The defendant, Travelers Insurance Company (Travelers), was before the Court on appeal from a Superior Court order for prejudgment interest pursuant to G.L. 1956 § 27-7-2.2, in favor of the plaintiffs, Wayne DeMarco and Leesa DeMarco, individually, as parents and legal guardians of Chayce DeMarco, a minor, and Brayden DeMarco, a minor, and as assignees of Leo H. Doire, and Virginia Transportation Corporation.  This Court previously affirmed the entry of summary judgment with respect to § 27-7-2.2 liability in DeMarco v. Travelers Insurance Co., 26 A.3d 585 (R.I. 2011) (DeMarco I).  On appeal, Travelers argued that the claim for interest pursuant to § 27-7-2.2 was rendered moot by the entry of a judgment satisfied order necessary to complete an assignment of claims between plaintiffs and Travelers’ insureds and thus divested the Superior Court of subject-matter jurisdiction.  Furthermore, Travelers contended that the Superior Court improperly concluded on remand that the claim for interest was affirmed.

The Supreme Court held that the § 27-7-2.2 claim for interest was affirmed by the Court’s prior decision.  The Court concluded that the Superior Court was not divested of subject- matter jurisdiction.  Additionally, the Court ruled that the judgment satisfied order did not render moot the claims assigned to plaintiffs.  Accordingly, the Court affirmed the order of the Superior Court.
13-21413-214.pdfState v. Allen Wray, No. 13-214 (November 12, 2014)
The defendant, Allen Wray, appealed from an order of the Superior Court denying his motion for credit for time served while awaiting trial and sentencing.  In January 2006, while serving a suspended twelve-year sentence for drug-related charges, the defendant was charged and held without bail on robbery charges.  In April 2006, the defendant was adjudicated a probation violator and ordered to serve the previously suspended sentence.  He was convicted of the robbery charges in December 2008 and sentenced in April 2009 to ten years to serve, to run concurrently with the sentence imposed for the drug-related charges.

The defendant argued that, pursuant to the provisions of G.L. 1956 § 12-19-2(a), his sentence in the robbery case should have been reduced by the number of days that he spent incarcerated between his arrest in January 2006 and his sentencing in April 2009.  Alternatively, the defendant argued that he was entitled to credit for the time between his arrest in January 2006 and his probation violation adjudication in April 2006.  The Supreme Court held that the defendant was entitled to credit for his time served between January 2006 and April 2006.  The defendant was not, however, entitled to credit for the time he served between April 2006 and April 2009 because, during this time, he was serving the execution of the previously suspended sentence for the drug-related charges. 
10-13110-131.pdfState v. John S. Miguel, No. 10-131 (November 10, 2014)
The defendant, John S. Miguel, appealed pro se from a Superior Court order denying his motion to reduce what he contended was an illegal sentence imposed upon him pursuant to Rule 35 of the Superior Court Rules of Criminal Procedure in January of 1992.  In the underlying criminal case, the defendant pled guilty to the second-degree murder of his wife, and he received a life sentence.  On appeal, he argued:  (1) that his life sentence is illegal because it exceeds the thirty-year maximum sentence for voluntary manslaughter, the crime for which the defendant felt he ought to have been sentenced, rather than second-degree murder; and (2) that the continued imposition of the life sentence is violative of the Eighth Amendment to the United States Constitution and article 1, section 8 of the Rhode Island Constitution.

The Supreme Court affirmed the trial justice’s denial of the defendant’s Rule 35 motion, holding that, because life imprisonment is within the purview of Rhode Island’s statute prescribing punishments for murder and because the defendant validly entered a plea of guilty to second-degree murder, the defendant’s sentence of life imprisonment was not illegal under Rule 35.  In addition, the Supreme Court held that there was no violation of the Eighth Amendment, nor was there a violation of the parallel provision of the Rhode Island Constitution, where the defendant pled guilty to the crime of second-degree murder and received a lawful sentence.
12-22612-226.pdfState v. Kathleen McKinnon-Conneally, No. 12-226 (November 10, 2014)
The defendant, Kathleen McKinnon-Conneally, appealed from a Superior Court judgment finding her to be in violation of the terms of her probation and sentencing her to serve the remaining eight and one-half years of her previously suspended sentence.  The defendant’s original sentence was imposed in 2010 after she pled nolo contendere to one count of second-degree robbery.  The original sentence was for ten years at the Adult Correctional Institutions (ACI), with eighteen months to serve, which term to serve was stayed pending her completion of mental health and substance abuse counseling, and eight and one-half years suspended, with probation. The stay was removed and the defendant was incarcerated at the ACI to serve the eighteen-month portion of the sentence.  Shortly after her release from the ACI, the defendant was arrested on charges of first-degree robbery and conspiracy to commit first-degree robbery.  The defendant was presented to the Superior Court as a probation violator pursuant to Rule 32(f) of the Superior Court Rules of Criminal Procedure.  The Superior Court found that the defendant had violated the terms of her probation and ordered her to serve the entire eight and one-half years of the previously suspended portion of her sentence.  The defendant subsequently pled nolo contendere to the charges of first-degree robbery and conspiracy to commit first-degree robbery.

On appeal, the defendant argued that the hearing justice abused his discretion when he ordered her to serve the entire remaining suspended portion of her original sentence.  The defendant claimed that the hearing justice ignored the sentencing benchmark for the 2010 conviction for second-degree robbery, the defendant’s mental health diagnoses, and the defendant’s substance abuse problems.  After carefully considering the record in light of the hearing justice’s broad discretion to determine the extent to which a suspended sentence will be executed, if at all, the Supreme Court was satisfied that the hearing justice did not abuse his discretion.  Accordingly, the Supreme Court affirmed the judgment of the Superior Court.
11-266-12-77-12-11611-266-12-77-12-116.pdfSimcha Berman et al. v. Laura Sitrin, in her capacity as Finance Director for the City of Newport et al., Nos. 11-266, 12-77, 12-116 (November 10, 2014)
The plaintiffs, Simcha and Sarah Berman, appealed from a judgment in favor of the defendant, the State of Rhode Island, after a jury trial declaring that the defendant was not negligent.  The plaintiffs also appealed the denial of their motions for judgment as a matter of law, a new trial, and to vacate judgment.  The defendant cross-appealed the denial of its motion for judgment as a matter of law.
  
The plaintiffs assigned error to various rulings over the course of the trial.  In particular, plaintiffs argued that there was error (1) in the trial justice’s refusal to grant a change of venue or venire; (2) in the manner in which a jury view was conducted; (3) in the refusal to admit into evidence a letter written by the then-president of a nearby college; (4) in the jury being informed that a settling joint tortfeasor had liability insurance pursuant to Rule 411 of the Rhode Island Rules of Evidence for the purposes of proving ownership and control; (5) in the trial justice’s adherence to our prior decision in this case, and in improperly instructing the jury.  The Court held that there was no error in the trial justice’s rulings that warranted reversal.

The plaintiffs also argued that the trial justice should have granted plaintiffs’ motions for judgment as a matter of law, a new trial, or to vacate judgment.  The Court held that the trial justice properly denied these motions.  Having affirmed the jury verdict in favor of the defendant, the Court declined to entertain the arguments raised in the state’s cross-appeal.
12-189-12-19012-189-12-190.pdfTimothy Raiche d/b/a T. Raiche Builders v. Timothy W. Scott et al., No. 12-189, 12-190 (October 31, 2014
These consolidated appeals came before the Supreme Court on October 2, 2014, pursuant to an order directing the parties to appear and show cause why the issues raised in these appeals should not be summarily decided.  After a bench trial, a justice of the Superior Court declared that the defendants, Timothy W. and Pamela J. Scott (the defendants), owed the plaintiff, Timothy Raiche (the plaintiff) d/b/a T. Raiche Builders, $5,455.50 in damages and further found that the defendants were responsible for prejudgment interest on the amount of an offer of judgment that had been deposited in the Registry of the Superior Court, in accordance with Rule 68(b)(3) of the Superior Court Rules of Civil Procedure.  The defendants timely appealed the trial justice’s decision to award prejudgment interest on the amount of the offer of judgment.  The plaintiff cross-appealed the trial justice’s damages award.  The Supreme Court determined that cause had not been shown and thus, denied and dismissed the appeals of both parties and affirmed the judgment.
13-17913-179.pdfFederal National Mortgage Association v. Etta E. Malinou et al., No. 13-179 (October 20, 2014)
The defendant, Martin Malinou, appealed a Superior Court judgment that awarded the plaintiff, Federal National Mortgage Association (Fannie Mae), possession of premises in Providence (the property).  The defendant’s mother, Etta E. Malinou, had owned the property and had executed a “reverse mortgage” thereon.  After Mrs. Malinou’s death, the defendant inherited the property and payment of the note executed by Mrs. Malinou was demanded in full.  No payments were made.  As a result, the property was sold at a foreclosure sale.  Thereafter, the property was conveyed to the plaintiff, which filed a trespass and ejectment action in the District Court.  The case was transferred to the Superior Court for trial where judgment entered in favor of the plaintiff.

On appeal, the defendant raised five arguments: (1) The Superior Court did not have personal or subject matter jurisdiction over the controversy because there was no service on the estate; (2) deference should not be given to the trial justice’s findings of fact because they were based on documentary evidence; (3) the trial justice erred when she required clear and convincing evidence to rebut the presumption in favor of Fannie Mae; (4) the trial justice erred when she failed to enforce the subpoenas duces tecum issued upon Lender Processing Services, Inc. and Bank of America; and (5) an August 2012 tax-sale deed in favor of Rookies Real Estate divested Fannie Mae of the right to possess the property.

The Supreme Court held that the personal jurisdiction argument was waived because it was not raised in the Superior Court.  The Supreme Court also concluded that the trial court was vested with subject matter jurisdiction because the defendant answered the complaint and appeared in court.  With respect to the defendant’s second argument, the Supreme Court held that it was well established that deference be given to the trial justice’s decision when sitting without a jury.  Next, the Supreme Court upheld the trial justice’s finding that the defendant failed to rebut the presumption that Fannie Mae was entitled to possession of the property.  Further, the Supreme Court held that the trial justice’s decision to not enforce the subpoenas that were overbroad and issued on the eve of trial was not an abuse of discretion.  Finally, the Supreme Court held that the defendant’s argument concerning the tax-sale deed was meritless because the plaintiff was within the redemption period.

Accordingly, the Supreme Court affirmed the judgment of the Superior Court.  
13-5913-59.pdfDesmond A. Leone v. Mortgage Electronic Registration Systems, et al., No. 13-59 (October 20, 2014)
The plaintiff, Desmond A. Leone, appealed a Superior Court entry of summary judgment against him and in favor of the defendants Mortgage Electronic Registration Systems (MERS), Equity One, Inc. (Equity One), and Assets Recovery Center Investments, LLC (ARC).  The plaintiff had executed a mortgage, using his Johnston home as collateral, with Equity One as the lender and MERS as the named mortgagee.  MERS later assigned its interest in the mortgage to ARC.  Upon entering default for failure to make timely payments, ARC began foreclosure proceedings and the home was sold in November of 2009.  The plaintiff filed an action for declaratory relief in Providence County Superior Court seeking declarations that the assignment of his mortgage from MERS to ARC was invalid and to quiet title to the property.
   
The defendants filed a motion to dismiss under Rule 12(b)(6) of the Superior Court Rules of Civil Procedure and the hearing justice converted the motion to one for summary judgment when he considered materials provided to him by the parties that were outside of the pleadings.  In granting summary judgment for the defendants, the hearing justice declared that there were no genuine issues of material fact and that the defendants were entitled to judgment as a matter of law.

On appeal, the plaintiff advanced a number of arguments.  First, the plaintiff contested the hearing justice’s conversion of the motion to dismiss to a motion for summary judgment.  Next, the plaintiff contended that summary judgment was incorrectly granted to the defendants because there were genuine issues of material fact.  The plaintiff argued that the assignment of the mortgage from MERS to ARC was invalid, that the foreclosure by ARC was improper, and that the hearing justice improperly relied on other Superior Court decisions.
   
The Supreme Court concluded that these arguments were without merit.  Rule 12(b) says that if a hearing justice considers materials outside the pleadings the motion shall be converted to one for summary judgment.  Here, both the plaintiff and the defendants submitted extraneous documents and should have been on notice of the motion’s conversion.  On the remaining points, the Supreme Court found on facts similar to those in Bucci v. Lehman Brothers Bank, FSB, 68 A.3d 1069, 1085 (R.I. 2013), MERS was the mortgagee with the Statutory Power of Sale and not simply the nominee of the lender.  The assignment of the mortgage from MERS to ARC was valid and consistent with the Court’s decision in Mruk v. Mortgage Electronic Registration Systems, Inc., 82 A.3d 527 (R.I. 2013).  Further, the limited power of attorney from Equity One to ARC gave ARC the rights of the lender in addition to the rights of mortgagee.  Therefore, the foreclosure by ARC on the property was proper.  These were questions of law properly settled by the hearing justice.

Accordingly, the Supreme Court affirmed the Superior Court’s grant of summary judgment.
13-9013-90.pdfKevin R. Hough v. Shawn P. McKiernan et al., No. 13-90 (October 17, 2014)
The defendant, Shawn P. McKiernan, appealed from a Superior Court ruling granting his motion for remittitur and awarding the plaintiff, Kevin R. Hough, damages of $925,000.  On appeal, the defendant argued that the award of $925,000 was excessive, punitive, and shocked the conscience.  The Supreme Court held that the trial justice conducted the appropriate analysis and did not overlook or misconceive material evidence in ruling on the motion for a remittitur and/or a new trial.  The Court determined that the trial justice weighed the evidence and testimony properly before coming to the conclusion that the plaintiff’s medical expenses, permanent injuries, and pain and suffering justified an award of $925,000.
   
Accordingly, the Court affirmed the judgment.
11-26211-262.pdfIn re Estate of Ann Marie Picillo et al., No. 11-262 (October 15, 2014)
In this will contest, Michael J. Picillo (contestant), a nephew and heir-at-law of Ann Marie Picillo (the decedent), appealed a Superior Court judgment affirming the Probate Court’s decision to admit the decedent’s will to probate. On appeal, contestant, who was before the Court pro se, argued that the trial justice erred by:  (1) failing to consider whether the will was executed in compliance with G.L. 1956 § 33-5-5; (2) concluding that the will was not the product of undue influence; (3) finding the decedent had the requisite testamentary capacity to execute the will; and (4) failing to make appropriate findings of fact required by Rule 52(a) of the Superior Court Rules of Civil Procedure.
12-34212-342.pdfState v. Jason Nickerson, No. 12-342 (July 10, 2014)
The defendant, Jason Nickerson, appealed his conviction on four counts of first-degree sexual assault, in violation of G.L. 1956 § 11-37-2, and one count of felony assault and battery, in violation of G.L. 1956 § 11-5-2.  On appeal, the defendant argued that the trial justice erred in denying his motion for judgment of acquittal and his motion for a new trial, claiming (1) that the state failed to prove that the defendant was the perpetrator of the alleged crimes, and (2) that the chain of custody of the evidence kit was not sufficiently established by the state and should therefore have been excluded.  The defendant also argued that, in violation of his constitutional rights and Rule 16 of the Superior Court Rules of Criminal Procedure, the trial justice erred in denying his motion to exclude the testimony of a forensic evidence analyst who testified at trial, and that the trial justice should have granted the defendant’s motion for a new trial on this basis.
   
The Supreme Court held that the trial justice did not err in finding that Rule 16 had not been violated after determining that the state’s failure to produce certain documents was inadvertent and that the defendant suffered no resulting prejudice.  The Court also held that the trial justice correctly concluded that the defendant’s constitutional rights were not violated as a result of the inadvertent nondisclosure.  Finally, the Supreme Court held that the trial justice conducted the correct analyses and did not err in denying both the defendant’s motion for a new trial and the defendant’s motion for judgment of acquittal.  Accordingly, the Supreme Court affirmed the judgment of conviction.
12-26912-269.pdfKenneth N. Ingram et al. v. Mortgage Electronic Registration Systems, Inc., et al., No. 12-269 (July 2, 2014)
The plaintiffs, Kenneth and Olivia Ingram, appealed from the entry of summary judgment in the Superior Court in favor of the defendants Mortgage Electronic Registration Systems, Inc. (MERS) and Deutsche Bank National Trust Company (Deutsche Bank).  On appeal, the plaintiffs argued that the trial justice erred by converting the plaintiffs’ Rule 12(c) motion for judgment on the pleadings into a motion for summary judgment under Rule 56 of the Superior Court Rules of Civil Procedure.  The plaintiffs also argued that, because of issues related to the validity of the assignment of the mortgage and the note, the Superior Court justice erred by concluding that no genuine issues of material fact existed and that the defendants were entitled to judgment as a matter of law.

 The Supreme Court held that the Superior Court justice properly converted the defendants’ motion for judgment on the pleadings to one for summary judgment.  Based primarily upon this Court’s recent opinions in Bucci v. Lehman Brothers Bank, FSB, 68 A.3d 1069 (R.I. 2013) and Mruk v. Mortgage Electronic Registration Systems, Inc., 82 A.3d 527 (R.I. 2013), the Court also concluded the assignment of the mortgage was valid and that Deutsche Bank had the authority to foreclose on the plaintiffs’ property.
12-33012-330.pdfCity of Pawtucket v. Nichalas Laprade, No. 12-330 (July 2, 2014)
This case came before the Supreme Court pursuant to a writ of certiorari filed by the petitioner, the City of Pawtucket, seeking review of a Superior Court judgment affirming a decision of a hearing committee that was convened to adjudicate disciplinary charges against the respondent, Pawtucket police officer Nichalas Laprade, in accordance with the Law Enforcement Officers’ Bill of Rights (LEOBOR), found in G.L. 1956 chapter 28.6 of title 42.
  
The Supreme Court held that the jurisdiction of the Superior Court was not properly invoked by a letter sent to the Presiding Justice requesting a continuance of the initial LEOBOR hearing date.  In addition, the Supreme Court held that the Presiding Justice exceeded her authority under § 42-28.6-5(b) by requiring the parties to treat the hearing as if it were actually held on an earlier date.  Based on these errors of law which occurred at the beginning of the LEOBOR proceedings, the Supreme Court deemed it unnecessary to reach additional issues raised on appeal.
  
Accordingly, the Supreme Court quashed the decision of the Superior Court and vacated the decision of the hearing committee.  The case was remanded to the Superior Court with directions to further remand the matter to the hearing committee to conduct LEOBOR proceedings regarding the disciplinary charges filed against the respondent de novo. 
11-341, 12-202, 12-20311-341, 12-202, 12-203.pdfJody King v. Huntress, Inc., Nos. 11-341, 12-202, 12-203 (July 2, 2014)
In this federal maritime action, Jody King, the plaintiff, raised claims for maintenance and cure; negligence under the federal Jones Act, as codified in 46 U.S.C. § 30104; and breach of the warranty of seaworthiness.  On June 1, 2011, following a trial in Washington County Superior Court, in which the plaintiff prevailed on his claim for maintenance and cure, but not on his claims for negligence and breach of the warranty of seaworthiness, the trial justice denied the motion for a new trial filed by the defendant, Huntress, Inc., with respect to the claim for maintenance and cure and granted the motion for a new trial filed by the plaintiff with respect to the claims for negligence and breach of the warranty of seaworthiness.  The defendant appealed that decision, contending that the trial justice erred in: (1) denying the defendant’s motion for a new trial on the claim of maintenance and cure because the trial justice, of his own accord, gave what the defendant considered to be an improper jury instruction with respect to “unearned wages;” (2) granting the plaintiff a new trial on the issues of negligence and breach of the warranty of seaworthiness because the trial justice (in the defendant’s view) “overlooked” and “misconstrued” testimony, resulting in a decision which was “clearly wrong;” and (3) applying Rhode Island’s prejudgment interest statute, as codified in G.L. 1956 § 9-21-10, as opposed to the principles of general federal maritime law pertaining to prejudgment interest.

The Court held: (1) that the trial justice’s unearned wages jury instruction, which was part of his instructions to the jury with respect to the plaintiff’s claim for maintenance and cure, was erroneous and resulted in prejudice to the defendant; (2) that the trial justice overlooked and misconceived material evidence in the course of granting the plaintiff’s motion for a new trial on his claims for negligence under the Jones Act and breach of the warranty of seaworthiness; and (3) that the trial justice erred in applying Rhode Island’s prejudgment interest statute, rather than following federal maritime law and submitting the issue of prejudgment interest to the jury.  Accordingly, the Court remanded the case with instructions that a new trial be conducted solely with respect to the plaintiff’s claim for maintenance and cure.
13-1513-15.pdfButterfly Realty et al. v. James Romanella & Sons, Inc., No. 13-15 (July 1, 2014)
The plaintiffs, Butterfly Realty and Dairyland, Inc. (collectively the plaintiffs), claimed a prescriptive easement over a commercial parking lot owned by the defendant, James Romanella & Sons, Inc.  In a prior decision, Butterfly Realty v. James Romanella & Sons, Inc., 45 A.3d 584 (R.I. 2012), the Supreme Court vacated a Superior Court judgment denying the plaintiffs’ claim and remanded the matter for further proceedings.  Upon remand, a Superior Court trial justice again found that the plaintiffs had failed to meet their burden of clearly and convincingly proving all of the requisite elements for a prescriptive easement.  The plaintiffs appealed.
  
After carefully parsing the record, the Supreme Court upheld the trial justice’s determination that the plaintiffs had failed to show by strict proof that their use of the parking lot was hostile to the defendant.  The Court concluded that the record supported the trial justice’s reasonable inference that the plaintiffs’ use of the parking lot was permissive.  The Court additionally rejected the plaintiffs’ argument that the trial justice had exceeded the scope of remand.  Thus, the Court affirmed the judgment.
13-8713-87.pdfProcess Engineers & Constructors, Inc. v. DiGregorio, Inc. et al., No. 13-87 (July 1, 2014)
The defendant, DiGregorio, Inc. (DiGregorio), appealed from a Superior Court judgment in favor of the plaintiff, Process Engineers & Constructors, Inc. (Process), granting the plaintiff’s claim for quantum meruit after a nonjury trial.  DiGregorio argued that the trial justice erred in finding that Process conferred a benefit on DiGregorio and that the trial justice erred in awarding Process’s back charges that were not proven to be fair and reasonable or due and owing.

The Supreme Court held that, for its quantum meruit claim, Process was required to prove only that it was not at fault for the loss; it did not need to prove who was at fault.  The Court was satisfied that competent evidence supported the trial justice’s finding that Process “was able to show that the additional costs in replacing the damaged pipe were not attributed to [p]laintiff’s own inefficiencies or job preparation.”  Additionally, the Court concluded that Process submitted evidence of the value of the services and DiGregorio put forth no evidence that Process’s charges were unreasonable.  Accordingly, the Court affirmed the Superior Court judgment.
12-24412-244.pdfState v. Antonio O. Whitfield, No. 12-244 (June 30, 2014)
The defendant, Antonio O. Whitfield, appealed from convictions of assault with a dangerous weapon (two counts) and simple assault (one count).  On appeal, the defendant argued that (1) the trial justice abused his discretion by allowing the state to impeach his credibility with fourteen prior criminal convictions and (2) the trial justice erred by denying defense counsel’s motion to pass the case after the prosecutor allegedly vouched for the credibility of two witnesses during his closing argument.

The Supreme Court held that the trial justice did not abuse his discretion by allowing the state to impeach the defendant’s credibility with his prior criminal convictions.  Additionally, the Court held that, although a portion of the prosecutor’s closing argument was improper, the trial justice did not abuse his discretion by refusing to pass the case.
12-248, 12-24912-248, 12-249.pdfNicholas T. Long et al. v. Dell, Inc., et al., Nos. 12-248, 12-249 (June 27, 2014)
In this putative class action, the plaintiffs allege that the defendants violated the Deceptive Trade Practices Act (DTPA), G.L. 1956 chapter 13.1 of title 6, and that the defendants were negligent by improperly collecting sales taxes on certain services purchased in conjunction with the sales of its computer products.  A justice of the Superior Court granted summary judgment on both counts in favor of the defendants.  On appeal, the plaintiffs contend that the defendants had a duty to properly calculate and collect sales tax and that the defendants’ collection of sales tax on service contracts constituted an unfair and deceptive trade practice under the DTPA.  Furthermore, they contend that the trial justice improperly concluded that Nicholas Long’s claims for declaratory and injunctive relief were moot.  In a separate appeal, consolidated for purposes of this opinion, the intervenor tax administrator argues that the Superior Court improperly struck his affirmative defenses.

 The Supreme Court affirmed the Superior Court justice’s rulings on the negligence count and the declaratory and injunctive relief claims.  The Court also affirmed the Superior Court justice’s order striking the tax administrator’s affirmative defenses.  However, the Court vacated the Superior Court justice’s ruling on the DTPA count and remanded the case to the Superior Court.
13-291, 29213-291, 292.pdfIn re Steven D. et al., Nos. 13-291, 13-292 (June 27, 2014)
In these consolidated appeals, the respondent parents, Kathleen D. and Ronald D., appealed from a Family Court decree terminating their parental rights to their two children, Steven D. and Zachary D., for a second time.  On appeal to the Supreme Court, Ronald argued that the Family Court justice erred by finding that (1) he was an unfit parent; (2) that DCYF made reasonable efforts at reunification; and (3) that the termination of his parental rights was in the best interests of the children.  In addition, Kathleen argued that DCYF’s failure to provide interaction between her and the children’s foster parents should result in the Family Court decree being vacated.
     
The Supreme Court held that, although clear and convincing evidence supported the termination of Ronald’s parental rights in accordance with G.L. 1956 § 15-7-7(a)(3)—that the children were unlikely to return to the parents’ care within a reasonable period of time—the Family Court justice did not err in finding that Ronald was an unfit parent in accordance with § 15-7-7(a)(2)(iii)—for reason of conduct or conditions seriously detrimental to the child, including chronic substance abuse.  The Supreme Court also held that the Family Court justice did not err in finding that DCYF had made reasonable efforts to reunify Ronald with the boys, or that the termination of Ronald’s parental rights was in the best interests of the children.  As to the argument raised by Kathleen, the Supreme Court held that, because the reasonable efforts that DCYF must make are aimed at reunification, the department is not required to provide interaction between a biological parent and a foster parent.  Accordingly, the Supreme Court affirmed the Family Court decree terminating the respondents’ parental rights.
12-8312-83.pdfState v. Darnell Hie, No. 12-83 (June 27, 2014)
The defendant, Darnell Hie, appealed from a November 17, 2011 judgment of conviction after a jury found him guilty of two counts of second-degree child molestation sexual assault pursuant to G.L. 1956 § 11-37-8.3.  On appeal, the defendant contended that the trial justice erred in refusing to declare a mistrial and in denying his motion for a new trial.

The Court held that the trial justice did not abuse his discretion in refusing to declare a mistrial because any prejudice which may have resulted from the incident at issue was cured by the trial justice’s instructions to the jury.  The Court further held that the trial justice properly carried out his analysis of the defendant’s motion for a new trial and did not misconceive or overlook material evidence or otherwise commit clear error.

Accordingly, the Court affirmed the Superior Court’s judgment of conviction and denial of the defendant’s motion for a new trial.
12-35812-358.pdfRoger T. Lamoureux v. State of Rhode Island, No. 12-358 (June 27, 2014)
The applicant, Roger T. Lamoureux, appeals from a judgment of the Superior Court denying his application for postconviction relief pursuant to G.L. 1956 § 10-9.1-1.  On appeal, the applicant contended that he was entitled to postconviction relief on the basis of what he perceived to be errors on the part of the trial justice and ineffective assistance of counsel.  The applicant further contended that the hearing justice committed clear error or abused his discretion in denying the application because the applicant was not given a proper evidentiary hearing at which he might submit evidence in support of his claims.
  
The Supreme Court held that the applicant’s claims relating to alleged errors committed by the trial justice were clearly barred by the doctrine of res judicata.  With respect to the applicant’s claim that his trial counsel was ineffective, the Court held that the applicant had not made the requisite showing that his trial attorney’s representation fell below an objective standard of reasonableness as required by the first prong of the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984).  The Court also noted that, after the hearing justice granted the motion to withdraw filed by applicant’s attorney, the applicant was afforded two hearings at which he could have presented evidence in support of his postconviction relief claims, yet he failed to do so.
 
Accordingly, the Court affirmed the judgment of the Superior Court.
13-20013-200.pdfErnest Barone v. State of Rhode Island et al., No. 13-200 (June 27, 2014)
The plaintiff, Ernest Barone, appealed pro se from the Superior Court’s granting of a motion to dismiss filed by the defendants, the State of Rhode Island and the Rhode Island Division of Taxation, which motion alleged that the Superior Court lacked subject matter jurisdiction.  In the Superior Court, the plaintiff had filed a complaint seeking declaratory, injunctive, and equitable relief, in addition to reimbursement of sales taxes imposed and collected by the defendants on the plaintiff’s motor vehicle property taxes.  The Superior Court ruled: (1) that the District Court had exclusive jurisdiction over tax matters and related equitable and constitutional claims; and (2) that, because the gravamen of the instant case was a tax dispute, the Superior Court lacked subject matter jurisdiction to adjudicate the plaintiff’s claims.  On appeal, the plaintiff posited that the Superior Court had subject matter jurisdiction and that the remedy at law available to him was inadequate.
  
In rendering its decision, the Court considered the statutory provisions set forth in G.L. 1956 §§ 44-19-18; 44-19-25, G.L. 1956 §§ 8-8-3; 8-8-24 and the case of Owner-Operators Independent Drivers Association of America v. State, 541 A.2d 69 (R.I. 1988).  The Court held that its prior holding in Owner-Operators that the District Court has exclusive jurisdiction over tax matters and the power to decide all related claims was wholly dispositive of the case.  The Court found no merit in the plaintiff’s contention that his remedy at law was inadequate.
  
Accordingly, the Court affirmed the order of the Superior Court.
13-10813-108.pdfQuest Diagnostics, LLC v. Pinnacle Consortium of Higher Education, a Vermont Reciprocal Risk Retention Group et al., No. 13-108 (June 27, 2014)
The plaintiff, Quest Diagnostics, LLC, appealed from the Superior Court’s grant of summary judgment in favor of the defendants, Pinnacle Consortium of Higher Education, a Vermont Reciprocal Risk Retention Group, and Genesis Insurance Company, in this insurance coverage dispute.  Quest argued that: (1) it was covered as an insured under the Pinnacle general liability policy; (2) it was covered under the professional liability coverage section of the Pinnacle policy; (3) it was covered under the Genesis excess policy; and (4) both Pinnacle and Genesis breached their duties to defend and waived their rights to deny coverage because they did not respond to the plaintiff’s demand for defense in a reasonably timely manner.
 
The Supreme Court affirmed the judgment of the Superior Court, holding that the clear and unambiguous language of the Pinnacle policy extended coverage to additional insureds “but only to the extent the Named Insured has agreed to do so.”  The named insured, Brown University, had entered into a Professional Services Agreement with Quest, under which Quest would perform clinical laboratory testing at the Brown University health center.  The Professional Services Agreement required both parties to procure four types of insurance coverage: workers’ compensation insurance, general liability insurance, “All Risk” property insurance, and professional liability insurance.  Notably, the agreement obligated both to name the other party as an additional insured under their general liability policies; there was no requirement that they do so for any of the other types of insurance.  Because the Professional Services Agreement was the source of the agreement to extend general liability coverage to Quest as an additional insured, the Supreme Court held that there was no agreement that Brown would provide professional liability coverage to Quest.
  
The Supreme Court held that the language of the Professional Services Agreement and the Pinnacle policy was clear and unambiguous—although Quest was an additional insured under the general liability coverage, it was not an insured under the professional liability coverage.  Because the claims against Quest alleged professional negligence, they fell within the purview of professional liability insurance.  Accordingly, neither Pinnacle nor Genesis had a duty to defend or indemnify Quest in this action.
12-31512-315.pdfKimberly S. Phelps et al. v. Gregory Hebert et al., No. 12-315 (June 27, 2014)
The plaintiffs, Kimberly S. Phelps and Thomas Phelps, individually and as co-administrators of the Estate of Ashley R. Phelps, brought suit against the defendants Leo R. Pelletier and Susan Pelletier, claiming that the defendants negligently allowed a guest at their son’s graduation party to operate an all-terrain vehicle in a reckless manner, resulting in the death of the plaintiffs’ daughter, Ashley.  The defendants’ motion for summary judgment was granted by a Superior Court justice, who determined that the defendants owed no duty to Ashley under principles of premises liability.  On appeal, the plaintiffs argued that summary judgment was granted in error because a duty should have been recognized and imposed upon the defendants.
    
The Supreme Court held that, based on the facts presented in this case, the landowners owed no duty and therefore could not be held liable as a matter of law for injuries occurring to an individual outside of their property.  Accordingly, the Supreme Court affirmed the judgment of the Superior Court.
12-8212-82.pdfJavier Merida v. State of Rhode Island, No. 12-82 (June 24, 2014)
The applicant, Javier Merida, appealed from a judgment of the Superior Court denying his application for postconviction relief.  Merida was convicted of two counts of first-degree child molestation and one count of second-degree child molestation.  On appeal, he contended that he was denied his constitutional right to the effective assistance of counsel under the Sixth Amendment to the United States Constitution and article 1, section 10 of the Rhode Island Constitution.
 
After careful review of the record, the Supreme Court affirmed the denial of Merida’s application.  The Court held that trial counsel’s performance was not constitutionally deficient for any of the reasons raised by Merida.
11-19911-199.pdfMaureen O’Connell et al. v. William Walmsley et al. v. Tapco, Inc., et al., No. 11-199 (June 23, 2014)
In this wrongful death action, the plaintiffs, Maureen O’Connell and Paul Roberti, in their capacities as co-administrators of the Estate of Brendan M. O’Connell Roberti, appealed from a Superior Court order granting judgment as a matter of law in favor of the defendant, William Walmsley, following a jury trial in which Walmsley was found to be negligent.  On appeal, the plaintiffs argued that the trial justice erred in granting the defendant’s motion for judgment as a matter of law because sufficient evidence was presented at trial to support the jury’s finding that the defendant was negligent.
 
The Supreme Court held that the trial justice erred by granting the defendant’s motion for judgment as a matter of law after the jury returned its verdict.  The Court concluded that sufficient evidence was presented at trial establishing the defendant’s intoxication, speed, and an inference of diminished reaction time from which the jury could infer negligence and conclude that the defendant’s failure to react was a contributing factor in the car collision which caused Brendan Roberti’s death.  Accordingly, the Court vacated that portion of the Superior Court order granting the defendant’s motion for judgment as a matter of law.
12-26312-263.pdfState v. Michael Patino, No. 12-263 (June 20, 2014)
The state appealed from an order of the Superior Court granting the defendant’s motion to suppress virtually all of the evidence obtained by the Cranston Police Department during its investigation into the death of his girlfriend’s six-year-old son, Marco Nieves.  The Cranston police were dispatched to a Cranston apartment to investigate the sudden illness of the young child, during which time they discovered incriminating text messages on the cell phone of the defendant’s girlfriend implicating the defendant with respect to the boy’s injuries.  After the boy succumbed to his injuries and died, the defendant, Michael Patino, was charged with a single count of first-degree murder.  Prior to trial, the hearing justice suppressed the text messages, finding that the defendant had standing to challenge the search and that the search was in violation of the defendant’s Fourth Amendment rights.  The hearing justice also found that the defendant had made a preliminary showing that affidavits in support of several of the warrants obtained during the course of the investigation contained statements that were knowingly false or made with reckless disregard for the truth.  On appeal, the state argued that the defendant did not have standing to raise a Fourth Amendment challenge because he did not have a reasonable expectation of privacy in the text messages.

 The Supreme Court held that the defendant did not have a reasonable expectation of privacy in the text messages contained on his girlfriend’s phone and thus did not have standing to challenge the search and seizure.  The Supreme Court also held that the defendant did not have standing to challenge several of the at-issue warrants in the case.  The Supreme Court also held, however, that the defendant did have a reasonable expectation of privacy in two of his own cell phones seized during the investigation and, further, that the state did not challenge the suppression of those phones.

 Accordingly, the Supreme Court vacated the Superior Court order with respect to all of the phones and evidence that the defendant did not have proper standing to challenge; affirmed the order suppressing the defendant’s personal cell phones; and determined that the defendant did not have standing to raise several Franks challenges and that the challenges to which he did have proper standing were moot.
12-32812-328.pdfLawrence C. LaBonte (American Steel Coatings, LLC) v. New England Development R.I., LLC et al., No. 12-328
American Steel Coatings, LLC (American Steel) appealed from a December 7, 2011 order in which a justice of the Providence County Superior Court voided as usurious a “Loan Agreement, Promissory Note, and Mortgage” granted to American Steel by New England Development R.I., LLC and its owner, Lawrence C. LaBonte.  American Steel contended on appeal that the hearing justice erred when he determined that the “commercial loan commitment fee” contained in the loan agreement between the parties was to be considered interest because it did not fall within the parameters of G.L. 1956 § 6-26-2(c)(1) (which details fees that are not considered to be interest); American Steel further contended that the hearing justice also erred when he concluded that the loan agreement was not rendered non-usurious by the presence of a usury “savings clause.”

The Supreme Court held that under § 6-26-2(c)(1)(iv) a “[c]ommercial loan commitment * * * fee[]” is defined as a fee “to assure the availability of a specified amount of credit for a specified period of time;” the Court further held that the fee in the instant case did not fall within that definition.  As such, the Court concluded that the fee at issue was part of the interest being charged, rendering the loan agreement void as usurious.  The Court also reiterated its holding in NV One, LLC v. Potomac Realty Capital, LLC, 84 A.3d 800, 810 (R.I. 2014), that “usury savings clauses” are unenforceable.
 
Accordingly, the Court affirmed the order of the Superior Court.
13-35413-354.pdfIn re Application of Carlton Vose., No. 13-354 (June 20, 2014)
The applicant, Carlton Vose, filed a petition in opposition to the recommendation of the Supreme Court’s Committee on Character and Fitness that he be denied admission to the Rhode Island bar.  Specifically, the applicant asserted that the committee violated his due process rights and failed to support its conclusions with sufficient and proper evidence.
 
The Supreme Court adopted the recommendation of the committee.  The Court held that the committee’s findings regarding the applicant’s character were well-founded and did not constitute an abuse of discretion.  The Court noted that the hearing transcripts and the applicant’s written submissions revealed the applicant’s hostile attitude and lack of candor.  Further, the Court held that the committee had not impinged on the applicant’s due process rights because the applicant was provided with notice and multiple hearings during which he had the opportunity to present evidence to prove his good character.  Pursuant to Article II, Rule 3 of the Supreme Court Rules of Admission of Attorneys and Others to Practice Law, the burden remained on the applicant throughout the proceedings to prove his good character by clear and convincing evidence.  Finally, the Court held that the committee was within its discretion to consider the findings of another state’s board of bar examiners in determining whether the applicant possessed the requisite character and fitness to be admitted to the bar in Rhode Island. 
13-12813-128.pdfGregory Coogan v. Cheryl Nelson et al., No. 13-128 (June 16, 2014)
The plaintiff Gregory Coogan (Coogan or plaintiff) appealed from a grant of summary judgment by the Superior Court in favor of the defendants, Cheryl Nelson and Mark Nelson, in this case arising out of a dog bite that occurred on the defendants’ property.  The plaintiff was bitten by the defendants’ dog when he was delivering a package to the defendants’ home in West Greenwich, Rhode Island.  The Superior Court held that the plaintiff had been bitten within the enclosure of the defendants’ property and that there was no genuine issue of material fact as to whether the defendants knew of the dog’s vicious propensities.
  
The Supreme Court concluded that a question of material fact remained as to whether the driveway of the defendants’ unfenced yard should be considered within the defendants’ enclosure for purposes of G.L. 1956 § 4-13-16, which provides that dog owners will be held strictly liable for any dog bites occurring while the dog was outside of the dog owner’s enclosure.  The Court also held that an incident report about the defendants’ dog having previously caused a deep scratch to the nose of the defendants’ son was enough evidence to raise a question of material fact as to the defendants’ knowledge of the dog’s vicious propensities.  The Court clarified that, for the purposes of the so-called “one-bite rule,” which states that, in order for a dog owner to be held liable for a dog bite occurring within the owner’s enclosure, the dog owner must have notice that the dog had vicious propensities, such notice may be based on the dog causing some “other injury” besides a bite.
  
Accordingly, the Supreme Court vacated the judgment of the Superior Court.
13-413-4.pdfState v. Mohamed Nabe, No. 13-4 (June 16, 2014)
The defendant appealed from a judgment of conviction after a Superior Court jury found him guilty of one count of carrying a firearm in a motor vehicle without a license in violation of G.L. 1956 § 11-47-8(a).  On appeal, the defendant contended that the trial justice overlooked and misconceived material evidence and was otherwise clearly wrong in denying his motion for a new trial because, in his view, there was no evidence that he was aware that his codefendant was in possession of a gun until the gun was fired.

 The Supreme Court held that there was nothing in the record that could lead to the conclusion that the trial justice was clearly wrong or that he overlooked or misconceived material and relevant evidence in denying the defendant’s motion for a new trial.  Accordingly, the Supreme Court affirmed the judgment of conviction. 
13-19813-198.pdfRosanna Cavanaugh v. Brian Cavanaugh, No. 13-198 (June 16, 2014)
The defendant, Brian Cavanaugh, appealed from an order of the Chief Judge of the Family Court affirming an order by a magistrate of the Family Court restraining and enjoining him from contacting his former wife, Rosanna Cavanaugh (the plaintiff).  On appeal, the defendant contended that the magistrate erred when she issued a civil restraining order because any remedy that might be afforded to a plaintiff under the pertinent statute requires, as a prerequisite, a finding of “domestic abuse;” and it was the defendant’s representation that the magistrate made an explicit finding on the record that the case did not involve domestic abuse.  It was the defendant’s further contention that, if the Court determined that the magistrate made “a positive finding of domestic abuse, such a finding was unfounded and unsupported” by anything in the record.

The Supreme Court held that, under the relevant statutory definitions, the defendant’s conduct constituted “domestic abuse.” The Supreme Court further held that the Chief Judge properly affirmed the magistrate’s order because it was within the magistrate’s authority to issue a civil restraining order after determining that, based on the evidence before her, such an order was necessary to protect the plaintiff from the defendant’s harassment.
 
Accordingly, the Supreme Court affirmed the order of the Family Court.
13-6813-68.pdfRose Nulman Park Foundation, by its Trustees, Carol B. Nulman and Joel S. Nulman v. Four Twenty Corp., et al., No. 13-68 (June 13, 2014)
The defendants, Robert C. Lamoureux and Four Twenty Corporation (collectively, defendants), appealed from a judgment of the Superior Court granting a mandatory injunction in favor of the plaintiff, Rose Nulman Park Foundation (Foundation).  The Foundation owned property in Narragansett, Rhode Island, which was designated as Rose Nulman Park and was to be kept undeveloped and open to the public for recreational purposes.  The defendants, who owned a lot abutting onto the Foundation’s property, erroneously constructed a home entirely on the Foundation’s property rather than on their own lot.  The plaintiff filed the underlying complaint seeking a mandatory injunction to remove the home from its property.  The Superior Court granted the plaintiff’s request for injunctive relief.
  
The Supreme Court concluded that the trial justice had correctly stated and applied the applicable law in reaching his conclusion to grant injunctive relief.  The Court also agreed with the trial justice that, while he did not have to balance the equities, he did so properly when he found that the harm to the plaintiff and the public outweighed the hardships to which the defendants would be subject, in having to remove the house from the plaintiff’s property.  Accordingly, the Supreme Court affirmed the judgment of the Superior Court.
13-10613-106.pdfRhode Island Joint Reinsurance Association v. Genoveva Santana-Sosa, Alias et al., No. 13-106 (June 13, 2014)
This appeal resulted from an interpleader action brought by the Rhode Island Joint Reinsurance Association against multiple defendants for the purpose of determining the proper disposition of insurance proceeds, which were disbursed pursuant to an insurance policy covering mortgaged real property that was damaged by fire.  The former homeowner and borrower, Genoveva Santana-Sosa, appealed from a judgment of the Superior Court in favor of the loan servicer, Bank of America, N.A.
  
 The Supreme Court affirmed the judgment of the Superior Court.  While Santana-Sosa alleged that the lender improperly conducted foreclosure proceedings against the insured property, the Supreme Court held that the propriety of the foreclosure was not at issue in this interpleader action.  The Supreme Court further held that Santana-Sosa was not entitled to the insurance proceeds pursuant to the terms of the mortgage, because she had agreed to maintain fire insurance on the property with the lender named as a loss payee, the lender had exercised its statutory power of sale, and the amount of the insurance proceeds was less than the amount unpaid under the note. 
12-32612-326.pdfState v. Roger Watkins, No. 12-326 (June 13, 2014)
The defendant, Roger Watkins, appealed from a Superior Court judgment of conviction, having been found guilty by a jury of six counts of first-degree sexual assault and four counts of second-degree sexual assault, for which he was sentenced to fifty years, with twenty-five years to serve and twenty-five years suspended, with probation.  On appeal, the defendant argued that the trial justice erred in admitting evidence concerning prior acts of misconduct committed by the defendant against the complainant, allowing an examining physician to testify to statements made by the complainant during the course of her treatment, and denying his motion for a new trial.

 The Supreme Court held that the defendant’s prior acts of misconduct were properly admitted under Rule 404(b) of the Rhode Island Rules of Evidence and were not unfairly prejudicial to the defendant.  The Supreme Court further held that, although there was not a sufficient foundation to admit the doctor’s testimony, the error was harmless in light of the large amount of inculpatory evidence properly admitted at trial.  Finally, the Court held that the trial justice did not overlook or misconceive evidence in denying the defendant’s motion for a new trial.
13-24513-245.pdfState v. Anibal Acevedo, No. 13-245 (June 13, 2014)
The defendant, Anibal Acevedo, appealed from a judgment of conviction of two counts of first-degree child molestation and three counts of second-degree child molestation.  On appeal, the defendant argued that the trial justice erred when she allowed the state to question the complaining witness on redirect examination about uncharged incidents of misconduct.

The Supreme Court held that the trial justice did not abuse her discretion.  The defendant had cross-examined the complaining witness about her statement to police, in which she said that the abuse had occurred “every other day.”  The trial justice allowed the state to attempt to rehabilitate the witness and correct the impression that the cross-examination may have left on the jury.  The trial justice considered the redirect examination with the attorneys and prevented the state from getting into the specifics of the uncharged incidents.  The misimpression that may have been left on the jury, plus the narrow scope of the testimony, led the Supreme Court to conclude that the trial justice had properly exercised her discretion in admitting the evidence.

Accordingly, the Court affirmed the judgment of conviction.
13-18413-184.pdfThomas H. McGovern, III v. Bank of America, N.A. et al., 13-184 (June 9, 2014)
The plaintiff Thomas H. McGovern, III appealed from the Superior Court’s grant of summary judgment in favor of the defendants, Bank of America, N.A., BAC Home Loans, Federal Home Loan Mortgage Corporation, and Celtic Roman Group, LLC.  The plaintiff had filed a complaint in Superior Court seeking to declare invalid a foreclosure sale conducted by Bank of America.  On appeal, the plaintiff argued that summary judgment was improvidently granted because (1) the trial justice improperly placed the burden on him to prove that the loan was not in default; (2) the foreclosure sale was not lawfully noticed; and (3) there existed a genuine issue of material fact concerning the identity of the note-holder.

 After reviewing the record, the Supreme Court upheld the grant of summary judgment.  The Court concluded that the trial justice had articulated and applied the proper standard for analyzing a motion for summary judgment.  The Court additionally agreed with the trial justice’s conclusion that the foreclosure sale was lawfully noticed.  Lastly, the Court held that the plaintiff had failed to come forward with competent evidence to establish that there was a genuine issue of fact concerning the identity of the note-holder at the time of the sale.
  
 Accordingly, the Court affirmed the Superior Court judgment. 
13-19113-191.pdfBerkshire Wilton Partners, LLC v. Bilray Demolition Co., Inc., No. 13-191 (June 9, 2014)
After a dispute arose between the plaintiff, a general contractor, and the defendant, a subcontractor, both parties submitted claims for damages to an arbitrator.  The plaintiff objected to the defendant’s claims, relying on the defendant’s previous execution of a waiver and release.  The arbitrator disagreed with the plaintiff’s argument that the release barred the defendant’s claims.  Accordingly, the arbitrator proceeded to award the defendant damages.  The plaintiff sought to have the award vacated pursuant to G.L. 1956 § 10-3-12.  A Superior Court trial justice granted the plaintiff’s motion to vacate, and the defendant appealed.

 On appeal, the Supreme Court concluded that the trial justice should have allowed the arbitrator’s award to stand.  In so holding, the Court emphasized that an arbitrator’s error of law or misconstruction of a contract does not suffice to vacate an award.  After reviewing the arbitrator’s decision, the Court specifically rejected the plaintiff’s arguments that the arbitrator manifestly disregarded relevant caselaw and the language of the release.  Thus, the Court vacated the judgment of the Superior Court.
13-19713-197.pdfJanet Coit, in her capacity as Director of the Rhode Island Department of Environmental Management v. John H. Tillinghast et al., No. 13-197 (June 9, 2014)
The plaintiff, Janet Coit, named in her official capacity as director of the Rhode Island Department of Environmental Management (DEM), appealed from an order of the Superior Court in favor of the defendants, John, Alfred, and Anna Tillinghast, adopting the report of a master and ordering that the master’s findings be implemented.  The dispute arose from the operation of the Bowdish Lake Camping Area in Glocester and Burrillville and, more specifically, from the establishment in the early 1970s of five campsites located in Burrillville near Wilbur Pond.  To assist in resolving the contentious relationship between the parties, a justice of the Superior Court appointed a master to resolve the remaining issues stemming from a consent agreement signed by the parties in 1998.  Addressing the first dispute in the consent agreement, the trial justice ordered the master to prepare a report relating to the five campsites and make recommendations to the court, setting forth findings of fact and conclusions of law, if required.  The court also ordered the master to submit an application to DEM to alter the wetlands around the campsites, which, after a review, DEM denied because the master had not fully explored alternative locations to the existing campsites.  The trial justice ultimately entered an order adopting the master’s report and directing that it be implemented.  DEM appealed.  At a pre-briefing conference, a single justice of the Supreme Court directed the parties to file supplemental memoranda addressing the issue of whether the trial justice’s order was interlocutory and therefore not appealable.

The Supreme Court held that the trial justice’s order was interlocutory because it did not possess sufficient elements of finality to be properly before the Court.  Moreover, the order did not meet either statutory or decisional exceptions to make review proper at this time.

Accordingly, the Supreme Court denied and dismissed DEM’s appeal.
12-15912-159.pdfIn re J.S., No. 12-159 (June 9, 2014)
The juvenile respondent appealed from a judgment entered by the Family Court finding him delinquent for having committed assault with a dangerous weapon in violation of G.L. 1956 § 11-5-2.  On appeal, the respondent contended that the trial justice overlooked or misconceived material evidence and was otherwise clearly wrong in finding that the state had disproved his defense of self-defense beyond a reasonable doubt.
 
 The Supreme Court held that there was nothing in the record that would lead to the conclusion that the trial justice was clearly wrong or that he overlooked or misconceived material evidence in rejecting the respondent’s defense of self-defense and his adjudication of the respondent as delinquent.  Accordingly, the Supreme Court affirmed the judgment of the Family Court. 
10-409, 11-33710-409, 11-337.pdfGail M. Bober v. David R. Bober, Nos. 10-409, 11-337 (June 6, 2014)
The defendant, David R. Bober, appealed from a Family Court decision pending entry of final judgment in this divorce action on the grounds that: (1) the trial justice overlooked or misconceived the medical evidence relating to the plaintiff’s medical condition; (2) the trial justice erred by awarding alimony to the plaintiff that could “turn into ‘lifetime’ alimony”; (3) the trial justice overlooked or misconceived evidence in arriving at the property distribution award; and (4) the trial justice erred by retroactively applying a modification of child support in violation of G.L. 1956 § 15-5-16.2.  The plaintiff, Gail M. Bober, cross-appealed, arguing that the trial justice erred by failing to award her: (1) attorney’s fees; (2) a sixty-percent share of the equity in a house that the defendant’s mother transferred to the defendant and his sister; and (3) lifelong medical coverage.  Further, she contended that the trial justice’s “sua sponte amended alimony award” was inequitable to her and contrary to previous holdings of this Court.

The Supreme Court affirmed the decision pending entry of final judgment in all respects save one; the Court held that the trial justice’s amendment of the alimony award, in which he determined that Mrs. Bober would receive fifty percent of Mr. Bober’s pension upon the date he chose to retire, rather than upon his eligibility to retire, was inequitable.  The Court stated that a pension is akin to a forced savings account and, thus, pension benefits are marital property subject to equitable distribution.   The Court noted that, particularly in cases where a high degree of hostility is present, one spouse should not be allowed to deprive the other of his or her interest in a marital asset by invoking a condition wholly within his or her control—viz., the retirement date.

 The Supreme Court, mindful of the animosity present in this long and contentious divorce, directed the Family Court to enter an order directing the defendant to pay to the plaintiff one-half the value of his pension benefits at such time as he becomes eligible to receive his maximum pension benefits; such payments are to be made monthly; the defendant’s obligation to pay alimony will cease at that time.  Upon the defendant’s retirement, the plaintiff shall receive one-half of the defendant’s pension benefits pursuant to a qualified domestic relations order.
13-15213-152.pdfSiemens Financial Services, Inc., et al. v. Stonebridge Equipment Leasing, LLC, et al., No. 13-152 (June 6, 2014)
The defendants and counterclaimants, Stonebridge Equipment Leasing, LLC, New England Radiology & Lab Services, P.C., Muhammad M. Itani, and Bishar I. Hashem, appealed from a final judgment entered after summary judgment was granted for the plaintiffs, Siemens Financial Services, Inc. and Siemens Medical Solutions USA, Inc.  The defendants leased medical equipment from the plaintiffs but defaulted on those leases.  The defendants argued that summary judgment was inappropriate because of four factual disputes relating to their defenses and counterclaims, all of which were based on misrepresentations that allegedly induced the defendants into entering the leases.

The Supreme Court affirmed; none of the purported factual disputes prevented the proper granting of summary judgment.  First, the Court observed that some of the ostensible factual issues did not even relate to the misrepresentations alleged to have been made by the plaintiffs, but instead related to the plaintiffs’ purported failure to deliver contracted-for services, allegations that were not made in the defendants’ answers or counterclaims.  The Court also held that the defendants had failed to show a genuine issue of material fact regarding the accuracy of any alleged misrepresentations.  The Court additionally rejected the defendants’ contention that forecasts formed the basis of their misrepresentation defenses and counterclaims, as such estimates cannot underlie misrepresentation claims.  Moreover, the Court determined that the defendants had not shown a factual dispute about whether they had relied on the forecasts.  Finally, the Court held that the defendants’ counterclaim under Mass. Gen. Laws ch. 93A, which was coterminous with the other counterclaims, suffered the same fate as those claims.

Accordingly, the Supreme Court affirmed the judgment.
13-9113-91.pdfRhode Island Joint Reinsurance Association v. Kevin O’Sullivan et al., No. 13-91 (June 6, 2014)
In this interpleader action filed by Rhode Island Joint Reinsurance Association (RIJRA), Stanley Gurnick and Phoenix-Gurnick, RIGP (collectively, the Gurnicks) appealed from a grant of summary judgment by the Superior Court in favor of Navigant Credit Union (Navigant), deciding that Navigant was entitled to insurance funds under an insurance policy on a parcel of property in North Providence, Rhode Island.  The Gurnicks possessed the first mortgage on the property while Navigant had a second mortgage on the property.  The Navigant mortgage required the mortgagor to insure the mortgaged property against loss or damage and name Navigant as the loss payee under the policy, which the mortgagor duly did, obtaining insurance from RIJRA.  After the property sustained water damage that was insured by the RIJRA policy, RIJRA filed the instant interpleader action to determine who was entitled to the proceeds.

The Supreme Court held that an insurance policy is a contract between the insured and the insurer and does not run with the property insured.  The Court further concluded that, because the Gurnicks had not required the mortgagor to insure the property, the Gurnicks were not entitled to an equitable lien on the insurance proceeds.  Accordingly, the judgment of the Superior Court was affirmed. 
12-6712-67.pdfMichael L. Woodruff v. Stuart Gitlow, M.D., No. 12-67 (June 2, 2014)
The defendant, Dr. Stuart Gitlow, petitioned the Supreme Court for a writ of certiorari seeking review of a Superior Court order denying his motion for summary judgment.  The Court granted the petition, directing the parties to address whether a physician who was hired by the Federal Aviation Administration (FAA) to conduct an independent medical records review owed a duty of care to the subject of the review.  The FAA engaged the defendant to review the medical records of the plaintiff, Michael Woodruff, and to make a recommendation about the plaintiff’s fitness to have his medical certificate reinstated after he had voluntarily surrendered it.  Doctor Gitlow conducted his review and concluded that Woodruff fell within the FAA’s regulatory definition for substance dependence.  The FAA subsequently denied the plaintiff’s application for reinstatement, and Woodruff filed suit in Superior Court, alleging that Dr. Gitlow had been negligent.  In denying Dr. Gitlow’s motion for summary judgment, the trial justice concluded that the existence of a physician-patient relationship presented a material issue of fact and that the Restatement (Second) Torts § 552 (1977), entitled “Information Negligently Supplied for the Guidance of Others,” indicated that a duty could arise in this situation.

 The Supreme Court first held that there was no material issue of fact regarding any physician-patient relationship because the undisputed facts indicated that the parties had not established such a relationship.  Next, the Court held that the trial justice’s reliance on § 552 of the restatement was misplaced because Woodruff was not the intended beneficiary of the report and did not rely upon it to his detriment.  Finally, applying the factors outlined in Banks v. Bowen’s Landing Corp., 522 A.2d 1222, 1225 (R.I. 1987), the Court held that, in this case, Dr. Gitlow did not owe Woodruff a duty of reasonable care.

 Accordingly, the Supreme Court quashed the order of the Superior Court and remanded the case with its decision endorsed thereon.
13-13113-131.pdfAmadeu Santos v. State of Rhode Island, No. 13-131 (June 2, 2014)
The applicant, Amadeu Santos, appealed from the denial of his application for postconviction relief.  Santos’s application was filed approximately fourteen years after he pled nolo contendere to three counts of second-degree sexual assault.  Santos alleged in his application that the plea colloquy was insufficient pursuant to Rule 11 of the Superior Court Rules of Criminal Procedure.  The hearing justice denied Santos’s application pursuant to the doctrine of laches.

 The Supreme Court affirmed the hearing justice’s denial of Santos’s application for postconviction relief.  The Supreme Court held that the hearing justice did not abuse his discretion and was not clearly wrong in finding that the fourteen-year delay was unreasonable.   The Supreme Court noted that, in the fourteen years between Santos’s plea and the filing of his application, he had repeated contact with the judicial system in the form of fulfilling his obligations to register as a sex offender, appearing before the court in relation to his probation requirements, and making two motions for permission to travel, for which he had retained private counsel.
12-34312-343.pdfAntonio P. Rosano v. Mortgage Electronic Registration Systems, Inc., et al., No. 12-343 (June 2, 2014)
The plaintiff, Antonio P. Rosano, appealed from a final judgment of the Superior Court dismissing his complaint against the defendants Mortgage Electronic Registration Systems, Inc., EquiFirst Corporation, and Sutton Funding LLC c/o HomEq Servicing, under Rule 12(b)(6) and (7) of the Superior Court Rules of Civil Procedure.  On appeal, the plaintiff argued that he stated a claim upon which relief could be granted and that he had joined all necessary parties.  The plaintiff did not name in his complaint the current title holder of the contested property, Bank of New York Mellon Trust Company.  In affirming the judgment of the Superior Court, the Supreme Court noted that it need only affirm on one of the two grounds raised to dispose of the appeal.  The Supreme Court held that the plaintiff’s complaint for declaratory and injunctive relief was brought specifically under the provisions of the Uniform Declaratory Judgments Act, G.L. 1956 chapter 30 of title 9, and that § 9-30-11 requires that all persons who have or claim any interest must be joined.  Additionally, the Supreme Court held that Rule 19(a) of the Superior Court Rules of Civil Procedure is abundantly clear in requiring that a person subject to service of process shall be joined if complete relief cannot be accorded among those already parties, or if the person claims an interest relating to the subject of the action.  Because the plaintiff failed to join the current title holder of the contested property, Bank of New York Mellon Trust Company, the Supreme Court held that the hearing justice’s dismissal of the action on Rule 12(b)(7) grounds was entirely appropriate.
13-9813-98.pdfState v. Pedro Marte, No. 13-98 (May 30, 2014)
The defendant, Pedro Marte, appealed from a Superior Court judgment of conviction for possession with intent to deliver cocaine.  The defendant argued that the trial justice erred by not excluding evidence that the defendant was carrying cash at the time of his arrest and in denying him any remedy for the state’s late disclosure of that evidence.

 The Supreme Court noted that the late disclosure was not intentional, and that the trial justice had allowed a brief recess, during which the parties reached an agreement that the state would not ask how much money was found on the defendant at the time of his arrest.  Accordingly, because the fact that the defendant had an unspecified amount of cash on his person was not unfairly prejudicial, the Supreme Court affirmed the judgment of the Superior Court.
12-23812-238.pdfState v. Rafael Ferrer, No. 12-238 (May 30, 2014)
The defendant appealed from a judgment of conviction on one count of carrying a pistol without a license and one count of possession of a firearm by a person previously convicted of a crime of violence.
 
 On appeal, the defendant contended: (1) that the trial justice erred in denying his motion for a judgment of acquittal pursuant to Rule 29 of the Superior Court Rules of Criminal Procedure; and (2) that the trial justice violated his right to the assistance of counsel under the United States and Rhode Island constitutions by improperly restricting defense counsel’s closing argument.
 
 The Supreme Court held that, viewing the evidence in the light most favorable to the state, giving full credibility to its witnesses, and drawing all reasonable inferences consistent with the defendant's guilt, there was sufficient evidence submitted at trial to support a verdict of guilty beyond a reasonable doubt.  The Supreme Court also held that no limitation on closing argument occurred at the time of the state’s first objection to defense counsel’s closing argument and that the trial justice properly sustained the state’s other objection at issue on appeal.
  
 Accordingly, the Supreme Court affirmed the Superior Court’s judgment of conviction.
12-312-3.pdfState v. Lakesha Garrett, No. 12-3 (May 30, 2014)
The defendant appealed from a judgment of conviction after a Superior Court jury found her guilty of one count of voluntary manslaughter.  On appeal, the defendant contended that the trial justice overlooked and misconceived material evidence and was otherwise clearly wrong in denying her motion for a new trial because, in her view, the state failed to meet its burden of proving beyond a reasonable doubt that she did not act in self-defense.

 The Supreme Court held that there was nothing in the record that would lead to the conclusion that the trial justice was clearly wrong or that she overlooked or misconceived material and relevant evidence in denying the defendant’s motion for a new trial.  Accordingly, the Supreme Court affirmed the judgment of conviction.
11-8511-85.pdfChariho Regional School District et al. v. Deborah Gist, in her capacity as the Commissioner of Elementary and Secondary Education of the State of Rhode Island et al., No. 11-85 (May 30, 2014)
The plaintiffs, the Chariho Regional School District and the Cranston School Department, appealed from an October 19, 2010 judgment of the Providence County Superior Court dismissing their complaint, pursuant to which the plaintiffs had sought a writ of mandamus.  The plaintiffs contended that the hearing justice erred when, in applying Rule 12(c) of the Superior Court Rules of Civil Procedure, he granted the motions to dismiss the plaintiffs’ complaint; those motions had been filed by Deborah Gist, the Commissioner of Elementary and Secondary Education of the State of Rhode Island (the Commissioner), and Frank T. Caprio, the then-General Treasurer of the State of Rhode Island (collectively the defendants).  They alleged that the hearing justice erred in finding: (1) that the Commissioner’s decision to deny the plaintiffs reimbursement for the salaries and benefits of certain officials in the plaintiffs’ vocational-technical schools was discretionary in nature, rather than ministerial; and (2) that the plaintiffs had an adequate remedy at law.

The Court held that, due to a conflict between certain Department of Education regulations and state statutes, the plaintiffs could not, under any set of facts, prove that they had a clear legal right to the funds in question, as was required for the issuance of a writ of mandamus.  Accordingly, the Court affirmed the judgment of the Superior Court granting the motions to dismiss filed by the defendants.
13-4813-48.pdfIn re: Proceedings to Establish a Contact Voltage Detection and Repair Program Applicable to National Grid Pursuant to Legislation—Review of RFP Process and Recommended Survey Schedule for 2013, No. 13-48 (May 30, 2014)
The Narragansett Electric Company d/b/a National Grid (the NEC) and the Division of Public Utilities and Carriers (the Division), collectively the respondents, moved to quash a writ of certiorari issued by this Court on February 15, 2013.  The appellees contended that Power Survey Company’s (the petitioner’s) petition for a statutory writ of certiorari was not filed within seven days of the order of the Rhode Island Public Utilities Commission (the Commission) which was being challenged, as required in G.L. 1956 § 39-5-1.  Specifically, the respondents posited that, despite the fact that the petitioner claimed to be challenging an order of the Commission issued on February 1, 2013, it was in reality challenging an order of the Commission issued on November 9, 2012; and they further contended that the petitioner had missed the available seven day window within which to file a timely appeal of the November 9, 2012 order.
 
The Court held that, notwithstanding the petitioner’s contention that it was appealing from the February 1, 2013 order, the petitioner was in fact challenging the November 9, 2012 order.  Consequently, the Court held that the petition for a statutory writ of certiorari was not filed by the petitioner within seven days, as required by § 39-5-1, and therefore was not timely.  The Court further held that, even if it treated the petitioner’s petition for a statutory writ of certiorari as a petition for a common law writ of certiorari, it would deny such a petition because there were no “unusual hardship[s] or exceptional circumstances” in the instant case.
  
The Court granted the motions to quash filed by the NEC and the Division, quashed the February 15, 2013 writ of certiorari, and denied the petition for a common law writ of certiorari.
13-2213-22.pdfJoseph P. Notarianni Revocable Trust of January, 2007 v. Joseph Paul Notarianni, Jr., et al., No. 13-22 (May 30, 2014)
The plaintiff, the Joseph P. Notarianni Revocable Trust of January, 2007, appealed from a December 6, 2012 Kent County Superior Court judgment granting a motion to dismiss its trespass and ejectment action.  The motion to dismiss was filed by Joseph Paul Notarianni, Jr., Robert Notarianni, Christine Fink, Rebecca Balasco, and Thomas P. Notarianni (collectively the defendants).  The motion justice granted the motion to dismiss, finding that the Superior Court did not have subject matter jurisdiction and that the plaintiff trust lacked the requisite standing to be a party in a landlord-tenant action.

The Court held that the Superior Court did have subject matter jurisdiction over the trespass and ejectment action pursuant to G.L. 1956 § 9-12-10.1.  It was the further holding of the Court that, due to the fact that no hearing was held and no findings of fact were made with respect to the issue of standing, the Court was unable to conduct a review.  Accordingly, the Court vacated the judgment of the Superior Court and remanded the case with instructions to conduct an evidentiary hearing on the issue of standing.
12-10512-105.pdfState v. Steven B. Morris, No. 12-105 (May 28, 2014)
The state appealed from an order of the Superior Court granting the defendant’s motions to suppress and/or exclude evidence obtained by Pawtucket police detectives following the defendant’s arrest in the city of Providence.  The defendant Steven B. Morris (Morris or defendant) was indicted for two separate incidents of first-degree robbery committed in Pawtucket.  On appeal, the state argued that the hearing justice erred in deciding that evidence stemming from an extra-jurisdictional arrest was subject to the exclusionary rule of the Fourth Amendment to the United States Constitution.
  
The Supreme Court concluded that the defendant’s arrest was unauthorized because it was made outside of the Pawtucket detectives’ jurisdiction.  The Court held, however, that exclusion of the evidence obtained from the defendant’s arrest was not required under the Fourth Amendment to the United States Constitution, relying on the United States Supreme Court’s holding in Virginia v. Moore, 553 U.S. 164, 178 (2008), that the Fourth Amendment did not require exclusion of evidence because of a violation of state law.  The Court further determined that the Pawtucket detectives’ actions in the instant case did not constitute such an egregious violation of their jurisdictional authority to justify application of the exclusionary rule.
  
Accordingly, the Court vacated the order of the Superior Court granting the defendant’s motions to suppress the evidence obtained from his arrest. 
11-19011-190.pdfState v. Mark Ceppi, No. 11-190 (May 28, 2014)
The defendant, Mark Ceppi, appealed from a judgment of conviction on one count of domestic felony assault, pursuant to G.L. 1956 § 11-5-2 and G.L. 1956 § 12-29-5, and one count of domestic simple assault, pursuant to § 11-5-3 and § 12-29-5, which judgment was entered on August 5, 2010, following a jury-waived trial in the Newport County Superior Court.  The defendant contended that the trial justice erred in denying his motion to dismiss a criminal information filed against him, which motion invoked Rule 9.1 of the Superior Court Rules of Criminal Procedure and G.L. 1956 § 12-12-1.7.  That criminal information contained two counts, on both of which the defendant was eventually convicted; he posited that the criminal information package was not sufficient to establish probable cause for either of the two counts.  He further contended that the trial justice made a number of evidentiary errors during the course of trial.  Those errors, according to the defendant, were as follows: (1) finding that certain portions of the testimony of Newport Det. Christopher Hayes were not hearsay and allowing improper bolstering of the testimony of Heather King (the complaining witness) by the testimony of Det. Hayes; (2) improperly allowing questioning of the defendant with respect to an alleged past incident of violence involving his former wife; (3) impermissibly restricting the defendant’s testimony with respect to Ms. King’s alleged intoxication; and (4) wrongly allowing Stephanie Bacon, the complaining witness’s twin sister, to testify with respect to the complaining witness’s injuries.

 The Court held that, if there was any deficiency in the criminal information, it was rendered harmless by the fact that, following a trial, the defendant was found guilty on both counts in the criminal information.  The Court further held that there were no evidentiary errors at trial which merited reversal.  Accordingly, the Court affirmed the Superior Court’s judgment of conviction.
11-32811-328.pdfDavid A. Roscoe v. State of Rhode Island, No. 11-328 (May 16, 2014)
The applicant, David A. Roscoe, appealed a judgment of the Superior Court denying his postconviction-relief application.  In 1991, Roscoe received a thirty-year sentence, fifteen years of which were suspended, with probation, for a conviction the previous year for multiple counts of child molestation, assault and battery, and witness intimidation.  In 2004, after he had been released from incarceration, Roscoe was found to have violated the terms and conditions of his probation and received the fifteen years remaining from his 1991 sentence.

Roscoe then sought postconviction relief from his 1990 conviction, contending that the trial justice had been biased, that the attorney appointed to represent him had provided ineffective assistance, and that the evidence had been insufficient to convict.  An attorney was appointed to represent Roscoe in his postconviction-relief application, but the attorney was allowed to withdraw after he concluded that Roscoe’s claims had no merit.  On appeal, Roscoe argued that the trial justice should not have allowed the attorney to withdraw.

The Supreme Court held that the hearing justice followed the procedures set forth in Shatney v. State, 755 A.2d 130, 135 (R.I. 2000), and, therefore, properly allowed counsel to withdraw.  The Court further held that the hearing justice was not clearly erroneous in her determination that the grounds had no merit.  The Supreme Court also determined that the factual investigation into Roscoe’s claims was not insufficient.  Lastly, the Court held that after counsel withdrew in accordance with Shatney, Roscoe was allowed to proceed pro se and was not entitled to a second appointed attorney to represent him in the evidentiary hearing on the merits of his application.

Accordingly, the Supreme Court affirmed the judgment.
12-25412-254.pdfState v. Adam Lake, No. 12-254 (May 16, 2014)
The defendant appealed from a judgment of conviction after a jury found him guilty of two counts of first-degree child molestation sexual assault.
 
On appeal, the defendant contended that the trial justice abused her discretion in denying his motion for a new trial because, in the defendant’s view, she overlooked and misconceived material evidence, specifically with respect to the testimony of the complaining witness; the defendant further asserted that the verdict failed to truly respond to the evidence and failed to do substantial justice between the parties.
  
 The Supreme Court held that there was nothing in the record that would lead it to conclude that the trial justice was clearly wrong or that she overlooked or misconceived material and relevant evidence in denying the defendant’s motion for a new trial.  Accordingly, the Supreme Court affirmed the Superior Court’s judgment of conviction.
12-6612-66.pdfDavid J. Alba v. Cranston School Committee, No. 12-66 (May 16, 2014)
David J. Alba (Alba) petitioned the Supreme Court for a writ of certiorari seeking review of a decision of the Board of Regents for Elementary and Secondary Education (board).  The board affirmed a decision of the Commissioner of Education which upheld the Cranston School Committee’s (committee) vote to nonrenew Alba’s employment contract.  The Court granted the petition so as to consider whether the committee had exceeded its statutory authority in nonrenewing Alba’s contract or had deprived Alba of the procedural protections to which he was entitled under the provisions of the School Administrators’ Rights Act, G.L. 1956 chapter 12.1 of title 16.

The Court held, after a thorough review of the record, that the committee acted within the scope of its statutory authority when it declined to renew Alba’s contract.  In light of the fact that Alba and his counsel walked out of the committee hearing without presenting any evidence, the Court also rejected Alba’s claim that the committee had deprived him of his right to a meaningful hearing.  In addition, the Court concluded that a comment made by one of the committee’s members in advance of the hearing did not require that committee member to recuse himself from participating in the hearing.

 Accordingly, the Supreme Court affirmed the board’s decision.
11-13211-132.pdfFrederick Carrozza, Sr., et al. v. Michael Voccola, in his capacity as executor of the Estate of Frederick Carrozza, Jr., et al., No. 11-132 (May 16, 2014)
Frederick Carrozza, Sr. and his living children (Phillip Carrozza, Freida Carrozza, and Laurie Carrozza-Conn) (collectively the counterclaim defendants) appealed from a judgment rendered by the Newport County Superior Court on December 17, 2010. The trial justice held the counterclaim defendants liable for slander of title, finding that notices of lis pendens were maliciously filed by the counterclaim defendants on the four properties at issue in the case. The counterclaim defendants contended that the trial justice erred: (1) when he held that Michael Voccola, in his capacity as executor of the estate of Frederick Carrozza, Jr., Angela Giguere, and Christine Giguere-Carrozza (collectively the counterclaimants) had met the required burden of proof to establish slander of title; (2) when he awarded compensatory damages based on the difference between the highest value of the properties attained during the period of time in which they were subject to the notices of lis pendens and the value of the properties when the notices of lis pendens were removed; (3) when he ruled that prejudgment interest should run from the date on which the notices of lis pendens were filed; (4) when he awarded punitive damages in the amount of $845,000 against Frederick Sr.; and (5) when he held Phillip, Freida, and Laurie liable for slander of title despite the fact that they were not parties to this civil action at the time that the notices of lis pendens were filed in 2002.

The Supreme Court held that: (1) the trial justice did not commit clear error or misconceive or overlook material evidence when he held Frederick Sr. liable for slander of title; (2) the trial justice properly computed compensatory damages by subtracting the value of the property on the date the notices of lis pendens were removed from the highest value of the properties attained during the time period in which they were subject to the notices of lis pendens; (3) prejudgment interest should be calculated starting from November 15, 2002, the date of the filing of the notices of lis pendens; (4) the trial justice did not misconceive any evidence in awarding punitive damages against Frederick Sr., but the punitive damages awarded were excessive; and (5) the trial justice properly found Phillip, Freida, and Laurie liable for slander of title.

Consequently, the Supreme Court affirmed the judgment of the Superior Court in part and vacated the portion of that judgment awarding $845,000 in punitive damages. The Court reduced the punitive damages to $422,500 and remanded the case to the Superior Court with instructions to enter judgment accordingly.
13-1113-11.pdfIn re Lyric P., No. 13-11 (May 16, 2014)
The respondent appealed from a Family Court decree terminating his parental rights with respect to his son.  On appeal, the respondent argued that the Family Court trial justice erred in finding that the Department of Children, Youth, and Families (DCYF) had proven that (1) it made reasonable efforts to reunite him with his son; (2) there was no substantial possibility that his son could safely return to his care within a reasonable period of time; and (3) he was unfit by reason of imprisonment.

 After carefully reviewing the record, the Supreme Court concluded that the evidence supported the trial justice’s findings that the child could not safely return to the respondent’s custody within a reasonable period of time and that respondent was unfit.  In addition, the Court concluded that there was sufficient evidence of record to support a determination that DCYF had made reasonable efforts to reunite the respondent with his son.  Accordingly, the Court affirmed the Family Court’s decree terminating the respondent’s parental rights.
13-10713-107.pdfMichael Moura et al. v. Mortgage Electronic Registration Systems, Inc., et al., No. 13-107 (May 16, 2014)
The plaintiffs, Michael Moura and Margaret Moura, appealed a Superior Court entry of summary judgment against them and in favor of the defendants, Mortgage Electronic Registration Systems (MERS), Accredited Home Lenders, Inc., Foreclosure Management Co., Vericrest Financial, Inc., Accredited REO Properties, LLC, and Deutsche Bank National Trust Company, as Trustee on behalf of the LSF MRA Pass-Through Trust.  The plaintiffs filed a two-count complaint in Superior Court seeking declaratory judgment and injunctive relief.  In granting the defendants’ motion for summary judgment, the trial justice declared that there were no genuine issues of material fact and that the defendants were entitled to judgment as a matter of law.
12-22712-227.pdfRicardo Ramirez v. State of Rhode Island, No. 12-227 (May 9, 2014)
Ricardo Ramirez appeals from a Superior Court judgment denying his application for postconviction relief.  On appeal, Ramirez argues that the hearing justice erred (1) by failing to make findings of fact pursuant to this Court’s holding in Shatney v. State, 755 A.2d 130 (R.I. 2000); (2) by not allowing Ramirez an opportunity to be heard on the merits of his application before allowing the appointed attorney to withdraw; and (3) by declining to consider the applicant’s motion to reduce sentence pursuant to Rule 35 of the Superior Court Rules of Criminal Procedure.

The Supreme Court held that the trial justice did not follow the appropriate procedure as mandated in Shatney v. State, 755 A.2d 130 (R.I. 2000), and that Ramirez was not provided with appointed counsel as required by G.L. 1956 § 10-9.1-5.  The Court also concluded that, on remand, Ramirez should have the opportunity to present any available claims in this first application for postconviction relief, including that he was deprived of the assistance of counsel to pursue a Rule 35 motion.  Accordingly, the Court vacated the judgment of the Superior Court and remanded the case with directions to appoint counsel in accordance with § 10-9.1-5. 
12-19812-198.pdfMaria Marble v. John Faelle et al., No. 12-198 (May 9, 2014)
The plaintiff, Maria Marble, suffered injuries when she was struck by a vehicle owned by the defendant, Hertz Corporation.  Hertz filed a motion for summary judgment, contending that it did not consent to the driver’s operation of the vehicle and that, alternatively, a federal statute, 49 U.S.C. § 30106, known as the Graves Amendment, precludes recovery against Hertz. A Superior Court justice granted Hertz’s motion.  The plaintiff appealed and argued that summary judgment was improperly granted.

The Supreme Court held that genuine issues of material fact make summary judgment inappropriate in this case.  Accordingly, the Court reversed the judgment of the Superior Court and remanded the case for trial.
12-21912-219.pdfState v. Thomas Mercurio, No. 12-219 (May 2, 2014)
The defendant, Thomas Mercurio, appealed from his conviction on one count of resisting arrest.  On appeal, the defendant challenged the trial justice’s pretrial denial of his motion in limine seeking to preclude admission into evidence of his prior convictions.  The defendant also argued that the trial justice erred by permitting the prosecutor to impeach the defendant’s testimony on cross-examination by revealing that two of the defendant’s prior convictions were for assaults on police officers.
  
The Supreme Court held that the prosecutor’s cross-examination of the defendant had improperly “manufactured” the issue of the defendant’s respect for police officers and for law and order, in order to impeach the defendant with the exact nature of his earlier convictions.  The Court concluded that the defendant had not “opened the door” to the prosecutor’s broad questions about the defendant’s sentiments towards police officers in general.  In so holding, the Supreme Court contrasted the situation in the case at bar from those in State v. Rosario, 14 A.3d 206, 218 (R.I. 2011), where “[the] defendant [Rosario] chose to answer a question about his attitude towards one person * * * with an extremely broad and unqualified declaration about his respect for authority in general.”  Finally, the Supreme Court concluded that the admission into evidence of the defendant’s prior convictions was not harmless.
12-11512-115.pdfState v. John Quaweay, No. 12-115 (May 2, 2014)
The defendant, John Quaweay, appealed from the Superior Court’s denial of his motion for a new trial based on newly discovered evidence.  Following his conviction for various firearms offenses, Quaweay moved for a new trial based on allegedly new information that the United States Marshals Service visited the apartment of his former girlfriend sometime prior to trial.  On appeal, the defendant argued that the trial justice erroneously concluded that such information did not constitute newly discovered evidence. 

 The Supreme Court held that the information which the defendant alleged to be newly discovered could have been obtained prior to trial through the exercise of reasonable diligence.  The Court therefore affirmed the trial justice’s denial of the defendant’s motion for a new trial. 
12-208,211,212,21412-208,211,212,214.pdfJean Ho-Rath et al. v. Rhode Island Hospital et al., Nos. 12-208, 211, 212, 214 (May 2, 2014)
These four consolidated appeals came before the Supreme Court following entries of final judgment in favor of four groups of defendants in this medical negligence action brought by the plaintiffs, individually and on behalf of their minor daughter, who was born with a genetic abnormality.  At issue in all four appeals is the application of G.L. 1956 § 9-1-14.1(1), an act which tolls the three-year statute of limitations for medical malpractice claims when the injured party is a minor.  On appeal, the plaintiffs argued that, pursuant to § 9-1-14.1(1), medical negligence claims may be brought on behalf of a minor at any time before the minor attains the age of majority, with an additional three years to bring suit on his or her own behalf after attaining the age of majority.  The plaintiffs also contend that parents must bring any derivative claims at the same time that a child’s claims are advanced.  Finally, the plaintiffs argued that the claims against the defendant laboratories Corning Incorporated and Quest Diagnostics, LLC, did not sound in medical malpractice and were therefore not subject to § 9-14.1-1(1).  The defendants Corning Incorporated, Quest Diagnostics, LLC, Rhode Island Hospital, Women & Infants Hospital, and each hospital’s associated medical professionals argued that the trial justice correctly dismissed the plaintiff parents’ derivative claims, but argued that the trial justice erred in interpreting § 9-1-14.1(1) to allow the child to bring an action on her own behalf upon attaining the age of majority.

The Supreme Court held that the claims against laboratories Corning Incorporated and Quest Diagnostics, LLC did not sound in medical malpractice and were therefore not subject to § 9-1-14.1(1), and vacated the Superior Court judgments entered in favor of those defendants.  The Court also concluded that cause had been shown concerning the appeals and cross-appeals filed by the plaintiffs and the defendants Rhode Island Hospital, Miriam Hospital, Women & Infants Hospital, and each hospital’s associated medical professionals, and directed that the questions raised therein be assigned to the Court’s full argument calendar.  
11-9211-92.pdfState v. Dana Gallop, No. 11-92 (May 2, 2014)
The defendant, Dana Gallop, appealed from a judgment of conviction of multiple charges arising out of a shooting outside the nightclub Passions in Providence.  On appeal, the defendant argued that the trial justice erred when he admitted an eyewitness’s out-of-court identification that the defendant argued was impermissibly suggestive.  The Supreme Court examined the photographic array that was displayed to the witness and held that it was not unnecessarily suggestive.  Therefore, the identification was admissible without the Supreme Court needing to consider whether the identification was independently reliable.

The defendant also argued that the state violated his constitutional rights by using its peremptory challenges to strike two minority venirepersons.  The Supreme Court held that the trial justice’s decisions to allow the challenges were not clearly erroneous.  Regarding the first potential juror, the Court considered the state’s proffered race-neutral reasons—the juror had earned a criminal-justice degree and was employed by a law firm in which one of the lawyers is a prominent criminal-defense attorney—and accepted the trial justice’s conclusion that they were not race-based.  For the second juror, the Supreme Court declined to engage in a comparative-juror analysis to determine whether the state’s race-neutral reasons were pretextual because that argument was not made to the trial justice.  Thus, the Court held that the defendant failed to meet his burden under the three-part test from Batson v. Kentucky, 476 U.S. 79 (1986).

Accordingly, the Supreme Court affirmed the judgment of conviction.
12-27112-271.pdfWoonsocket School Committee et al. v. The Honorable Lincoln Chafee in his official capacity as the Governor of the State of Rhode Island et al., No. 12-271 (May 2, 2014)
The plaintiffs brought suit against the General Assembly and various individuals in their official capacities within the executive and legislative branches of the state government.  The plaintiffs challenged the legislatively enacted school funding formula, which, they alleged, failed to allocate adequate resources to less affluent communities in the state.  The plaintiffs maintained that said formula, together with a confluence of statutory mandates, Rhode Island Department of Education regulations, educational standards, and the low tax capacity of certain urban municipalities, operated to inhibit students in their respective cities from obtaining a quality education. The plaintiffs sought injunctive and declaratory relief, alleging violations of the Education Clause, article 12, section 1 of the Rhode Island Constitution, as well as of their substantive due process and equal protection rights.  The Superior Court granted the defendants’ motion to dismiss the plaintiffs’ complaint.

 The Supreme Court affirmed the order of the Superior Court dismissing the plaintiffs’ complaint.  The Supreme Court determined that the facts alleged in the plaintiffs’ complaint were not sufficient to assert a claim upon which relief could be granted for a violation of the Education Clause.  The Supreme Court held that, while the Education Clause imposes a duty on the General Assembly to promote public education, the Clause also grants the General Assembly plenary power to determine the means of carrying out this mandate.    The Supreme Court further held that the repeal of the “Continuing Powers Clause,” article 6, section 10 of the Rhode Island Constitution, did not affect the Education Clause’s express grant of power to the General Assembly in the realm of education.  The Supreme Court also held that the plaintiffs’ claim presented a separation of powers issue, because the plaintiffs’ requested relief would require the court to impose its own judgment over that of the General Assembly in order to determine whether particular policies were beneficial to public education.

 The Supreme Court also held that the plaintiffs had failed to state a substantive due process claim, because the Rhode Island Constitution does not provide a fundamental right to education and because the plaintiffs did not allege facts to suggest that the education funding formula was arbitrary and capricious.
13-113-1.pdfStephen Carney, Jr. v. Sandra Carney, No. 13-1 (April 25, 2014)
The defendant, Sandra Carney (Sandra), appeals an order of the Family Court in favor of the plaintiff, her former husband, Stephen Carney, Jr. (Stephen).  In November 2006, a justice of the Family Court entered final judgment on the divorce between the parties, ending their nearly-seventeen-year marriage.  The parties had entered into a marriage settlement agreement (MSA), which the Family Court approved and incorporated by reference, but not merged, into the final judgment.  As part of the MSA, Stephen agreed to convey his interest in the parties’ home, while Sandra agreed to refinance the property and assume responsibility for all associated costs.  As consideration for relinquishing his interest, paragraph seven of the MSA indicated Stephen would receive $100,000 as an equitable distribution in 2024.  Paragraph seven also included two conditions that could accelerate the timing of the payment and a formula for determining the amount Stephen would receive should the property be sold for less than $475,000.  After Sandra sold the property in 2011, the parties found themselves in Family Court.

After a hearing, a justice of the Family Court appeared to find the language of paragraph seven ambiguous and interpreted it to mean that when the agreement was executed, the parties intended that Sandra and the two children would remain in the marital domicile and that the property would not be sold during the minority of the children.  The trial justice then held that sale of the property prior to 2024 constituted a third condition that accelerated payment to Stephen.  Because the property was sold for less than $475,000, the trial justice also calculated the amount of Stephen’s equitable distribution.
  
The Supreme Court held that paragraph seven was ambiguous because the timing of the payment to Stephen in the event the property was sold prior to 2024 was susceptible to more than one reasonable interpretation.  The trial justice, however, did not make sufficient findings of fact to determine the intent of the parties; therefore, the Supreme Court remanded the case to allow the trial justice to make the appropriate findings related to the intent of the parties if the property were sold before 2024.

The Supreme Court also held that the trial justice erred in calculating the amount of Stephen’s equitable distribution because she had not included the final step in the formula.
Finally, the Supreme Court found that Sandra had not objected to the trial justice’s open-court assertion that the parties had agreed to share equally in the costs of “enrichment activities” outlined in the MSA, nor did she object when an order to that effect was entered.  Therefore, the Supreme Court held that Sandra had waived the issue.

Accordingly, the Supreme Court affirmed in part and reversed in part the order of the Family Court and remanded the case to the Family Court to allow the trial justice to make the requisite findings of fact.
13-6313-63.pdfDavid F. Miller et al. v. Metropolitan Property and Casualty Insurance Company et al., No. 13-63 (April 17, 2014)
The defendant appealed from the denial of its motion to dismiss a cross-appeal filed by the plaintiff.  The defendant argued that the plaintiff’s cross-appeal was untimely pursuant to Article I, Rule 4(a) of the Supreme Court Rules of Appellate Procedure and should, therefore, be dismissed.  The plaintiff contended that the cross-appeal was timely.
 
The Supreme Court affirmed the Superior Court’s denial of the defendant’s motion to dismiss the plaintiff’s cross-appeal.  The Supreme Court held that Rule 4(a) must be interpreted in a manner that provides a twenty-day appeal period triggered by an appeal that constitutes the first appeal adverse to a potential cross-appellant’s interests.  In the case at hand, the plaintiff’s cross-appeal was filed in response to an appeal filed by the defendant, which was the first appeal in this multi-party case that was adverse to the plaintiff’s interests.  The Supreme Court accordingly held that Rule 4(a) provided a twenty-day appeal period triggered by the defendant’s appeal, during which the plaintiff was entitled to file a notice of cross-appeal in response. 
13-119, 13-12013-119, 13-120.pdfJPL Livery Services, Inc. d/b/a Ocean State Transfer v. Rhode Island Department of Administration et al.; JPL Livery Services v. State of Rhode Island et al., Nos. 13-119, 13-120 (April 17, 2014)
The plaintiff appealed from a Superior Court judgment in favor of the defendants.  The plaintiff and the defendants were parties to a service contract, in which the plaintiff agreed to provide livery services for the transportation of human remains.  The plaintiff challenged the trial justice’s findings that the contract was not exclusive and that the defendants’ unilateral termination of the contract did not constitute a breach.  The Supreme Court affirmed the judgment of the Superior Court.

 The Supreme Court held that the defendants did not breach the contract when they began using their own personnel for livery services in addition to the services provided by the plaintiff, because the contractual language did not form an exclusive agreement.  The Supreme Court further held that the contract’s termination clause allowed the defendants to terminate the agreement upon a finding of unsatisfactory performance.  The Supreme Court also held that this language did not render the agreement illusory because the defendants retained some obligation under the agreement and were statutorily required to exercise good faith in the performance of their contractual relationship with the plaintiff.  Finally, the Supreme Court held that the trial justice did not err in her factual findings and credibility determinations when finding that the defendants had acted in good faith.
13-15513-155.pdfState v. Jose L. Barrientos, No. 13-155 (April 17, 2014)
The defendant, Jose L. Barrientos, appealed from a Superior Court judgment of conviction declaring him to be in violation of the terms of his probation and sentencing him to five years of his previously suspended sentence.  On appeal, the defendant argued that the hearing justice erred because the evidence before him was insufficient to support his findings. In particular, the defendant argued that the state’s failure to provide testimony from a toxicologist regarding the identity of the substance seized from him—a substance that a field test revealed to be an opium derivative—was fatal to the state’s case.  In affirming the judgment of the Superior Court, the Supreme Court noted that the quantum of proof required to support a finding of probation violation is minimal.  Because a hearing justice need only be reasonably satisfied that an alleged violator has failed to keep the peace or be of good behavior, the Supreme Court held that the hearing justice was well warranted in reaching his determination that the defendant violated the terms and conditions of his probation.
13-12913-129.pdfWilfredo Nunez et al. v. Merrimack Mutual Fire Insurance Co., No. 13-129 (April 17, 2014)
The plaintiffs, Wilfredo Nunez and Janette Campos, appealed the Superior Court’s grant of summary judgment in favor of the defendant, Merrimack Mutual Fire Insurance Company.  The plaintiffs filed a claim with their insurance company, Merrimack Mutual, for damage sustained when the oil line to their hot water heater corroded, leaking oil and damaging their basement.  Merrimack denied the claim and the plaintiffs filed suit in Superior Court claiming breach of contract.  The trial justice granted Merrimack Mutual’s motion for summary judgment, finding that the clear and unambiguous language of the insurance policy did not cover damage caused by corrosion.  On appeal, the plaintiffs argued that the damage was covered by a pollution exclusion clause in the policy.  The plaintiffs also argued that because the loss was unexpected from their perspective, it was covered under the policy.

 The Supreme Court affirmed the judgment of the Superior Court, holding that the clear and unambiguous language of the insurance policy did not provide coverage for the type of loss incurred by the plaintiffs.
11-5411-54.pdfNational Refrigeration, Inc. v. Capital Properties, Inc. et al. No. 11-54 (April 17, 2014)
The plaintiff, National Refrigeration, Inc., appealed from a Superior Court judgment granting the motion of defendants Capital Properties, Inc. and Capitol Cove, LLC for final judgment under Rule 54(b) of the Superior Court Rules of Civil Procedure in a mechanics’ lien action.  The plaintiff, acting as subcontractor to Providence Builders, LLC, performed work on a property that was owned by Capital Properties and leased by Capitol Cove.  When a dispute arose regarding payment, the plaintiff sought to enforce a mechanics’ lien against the owner, the lessee and the builder.  The lien was dismissed after the parties posted a $400,000 bond, pursuant to the provisions of G.L. 1956 § 34-28-17.  Capital Properties and Capital Cove then requested, and were granted, an entry of final judgment pursuant to Rule 54(b).

 On appeal, the plaintiff argued that the owner, lessee, and the surety on the bond were all directly liable for the relief sought under the mechanics’ lien statute, and because the plaintiff complied with the requirements of the lien statute, judgment should be awarded in its favor.  The Supreme Court affirmed the judgment of the Superior Court, holding that a mechanics’ lien proceeding is an action in rem and that, once a bond is posted, it stands as security for the plaintiff’s claim and the property is no longer encumbered.  Therefore the claim against the owner and lessee was properly dismissed.
12-20612-206.pdfState v. Luis Barrios, No. 12-206 (April 17, 2014)
The defendant appealed from a judgment of conviction after a jury found him guilty of two counts of second-degree sexual assault.
  
On appeal, the defendant contended that the trial justice abused his discretion in denying the defendant’s motion for a new trial. The defendant specifically argued that reasonable minds could not differ regarding the evidence and the reasonable inferences drawn therefrom in this case and that the evidence presented at trial was insufficient to prove beyond a reasonable doubt that the defendant was the person who sexually assaulted the complainant.
 
 The Supreme Court held that there was nothing in the record that would lead it to conclude that the trial justice was clearly wrong or that he overlooked or misconceived material and relevant evidence in denying the defendant’s motion for a new trial.  Accordingly, the Supreme Court affirmed the Superior Court’s judgment of conviction.
11-39811-398.pdfState v. Markus Matthews, No. 11-398 (April 11, 2014)
The defendant, Markus Matthews, appealed from his conviction on a single count of first-degree robbery.  On appeal, the defendant argued that his conviction should be vacated because (1) he was charged with two counts of first-degree robbery in violation of double jeopardy principles; (2) the admission of a recorded statement of a witness violated Rule 801(d)(1)(A) of the Rhode Island Rules of Evidence and the Confrontation Clause; (3) certain testimony should not have been admitted as an adoptive admission of the defendant; and (4) the trial justice erred by denying his motion for a new trial.

The Supreme Court held that the defendant waived his double jeopardy argument by failing to raise the issue by motion prior to trial as required by Rule 12(b)(2) of the Superior Court Rules of Criminal Procedure; nevertheless, even if the argument was not waived, the Court noted that the conviction of a single count of first-degree robbery does not violate double jeopardy.  Additionally, the Court held that the admission of a recorded statement of a witness did not violate Rule 801(d)(1)(A) or the Confrontation Clause, the adoptive admission testimony was properly admitted, and the trial justice did not err by denying the defendant’s motion for a new trial.  Accordingly, the Court affirmed the conviction.
11-25711-257.pdfState v. Kayborn Brown, No. 11-257 (April 11, 2014)
The defendant, Kayborn Brown, appealed from a judgment of conviction stemming from two incidents on August 4, 2008, in Central Falls and on August 6, 2008, in Providence.  Following these incidents, the defendant was charged with ten offenses.  After a jury trial, the defendant was found guilty for the murder of Jorge Restrepo in violation of G.L. 1956 § 11-23-1, first-degree robbery in violation of G.L. 1956 § 11-39-1, conspiracy to commit robbery in violation of G.L. 1956 § 11-1-6, carrying a pistol without a license in violation of G.L. 1956 § 11-47-8(a), and reckless driving in violation of G.L. 1956 § 31-27-4.  The defendant had been charged with five other counts; three of which were dismissed through Rule 48(a) of the Superior Court Rules of Criminal Procedure, and two were disposed of after the trial justice granted the defendant’s motion to acquit pursuant to Rule 29 of the Superior Court Rules of Criminal Procedure.

On appeal, the defendant pressed five arguments.  First, he contended that the trial justice erred when he refused to sever the counts related to the August 4 incident from the August 6 offenses  because, the defendant alleged, those counts had been misjoined and should have been severed as a matter of law under Rule 8(a) of the Superior Court Rules of Criminal Procedure.  Next, the defendant maintained that, assuming the counts were properly joined under Rule 8(a), the trial justice nevertheless abused his discretion in refusing to sever pursuant to Rule 14 of the Superior Court Rules of Criminal Procedure.  Third, Brown argued that the trial justice impaired the defendant’s right to a fair trial when he excluded a police sketch of the alleged murderer.  Fourth, the defendant claimed that the trial justice erred when he allowed the state to introduce three photographs taken during an autopsy performed on the victim.  Finally, the defendant asserted that the trial justice abused his discretion when he denied the defendant’s motion for a new trial.

The Supreme Court held that the trial justice had not abused his discretion when he found the counts had not been misjoined because Rule 8(a) favors joinder and because the offenses charged in the indictment were of a sufficiently similar character and were connected together to justify joinder.  Secondly, the Court held that the trial justice did not err when he denied the defendant’s motion to sever under Rule 14 because the defendant had not suffered additional prejudice by the admission into evidence of an unusual red firearm recovered after the August 6 incident that would have likely been mutually admissible at separate trials.

Next, the Supreme Court held that the defendant’s right to a fair trial had not been impaired when the trial justice refused to enter into evidence a police sketch and did not allow a police sketch artist to testify.  The Court held that the sketch artist would not have been able to authenticate the sketch because the declarant was not available at the trial.  Fourth, the Court held that the trial justice did not impede the defendant’s right to a fair trial when he allowed into evidence three autopsy photographs, to which the defendant had objected, because the photographs were at least marginally relevant and not enormously prejudicial to the defendant.  Finally, the Court held that the trial justice had not erred when he refused the defendant’s motion for a new trial because the trial justice reviewed the evidence, weighed the credibility of the witnesses, and made plain that he did not disagree with the jury’s verdict.

Accordingly, the Court affirmed the judgment of conviction.
11-10511-105.pdfDonald Panarello v. State of Rhode Island, Department of Corrections et al., No. 11-105 (April 7, 2014)
The plaintiff, Donald Panarello, appealed from a judgment of the Superior Court following a bench trial.  In her lengthy decision, the trial justice held that the defendant, the State of Rhode Island Department of Corrections (DOC), had not discriminated against the plaintiff due to his military status in violation of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. §§ 4301 through 4335, or the parallel state statute entitled “Employment Rights of Members of Armed Forces,” G.L. 1956 chapter 11 of title 30, when it decided not to promote him on three occasions.  The plaintiff contended: (1) that, while the trial justice had correctly articulated the burden-shifting method of proof applicable in employment discrimination cases under the USERRA, she incorrectly applied it; and (2) that the trial justice overlooked or misconceived evidence that the plaintiff considered to be relevant, material, and supportive of his “prima facie” case of employment discrimination.
For actions under the USERRA and the parallel state statute, the Supreme Court adopted a two-part burden-shifting paradigm, articulated in the 2007 decision of the United States Court of Appeals for the First Circuit in the case of Velázquez-García v. Horizon Lines of Puerto Rico, 473 F.3d 11 (1st Cir. 2007).  The Court further held that the trial justice properly applied that two-part burden-shifting paradigm and did not overlook or misconceive material evidence. 
Accordingly, the Court affirmed the trial justice’s judgment in favor of the DOC.

12-207, 21012-207, 210.pdfCommerce Park Associates 1, LLC, et al. v. Monique Houle, in her capacity as Tax Collector of the Town of Coventry et al., Nos. 12-207, 12-210 (March 31, 2014)
These consolidated cases came before the Supreme Court on cross-appeals from a judgment of the Superior Court granting the defendants’ motion to dismiss the plaintiffs’ complaint for failure to exhaust their administrative remedies under G.L. 1956 § 44-5-26 and denying the defendants’ request for sanctions against the plaintiffs.  This is one of several cases in which the plaintiffs were challenging sewer assessments levied by the Town of Coventry.  The plaintiffs were also requesting injunctive relief to prevent a tax sale on their properties from proceeding.
  
In the first of these cases, the plaintiffs claimed that the hearing justice erred in granting the defendants’ motion to dismiss because the appeal process in § 44-5-26 was not applicable to sewer assessments.  In their cross-appeal, the defendants contended that their request for sanctions against the plaintiffs should have been granted by the hearing justice because of the plaintiffs’ various duplicative filings.
 
The Supreme Court concluded that the sewer assessments at issue were not taxes and, therefore, were not governed by the appellate procedures of chapter 5 of title 44.  The Supreme Court held that the plaintiffs were required to follow the procedure set forth in § 19 of the Coventry sewer enabling act, P.L. 1997, ch. 330, in order to challenge their sewer assessments.  The Supreme Court further held that the hearing justice had not abused his discretion in denying the defendants’ request for sanctions.  Accordingly, the Supreme Court vacated the judgment of the Superior Court as to the defendants’ motion to dismiss and affirmed the judgment as to sanctions.
13-12513-125.pdfKris Ellinwood et al. v. Scott B. Cohen et al., 13-125 (March 28, 2014)
In this automobile negligence action, the plaintiff Kris Ellinwood, his wife, and three children appealed from the Superior Court’s grants of summary judgment in favor of the defendant Scott B. Cohen.  The plaintiff, a patrolman with the East Providence Police Department, was struck by a vehicle driven by a third party while responding to an automobile accident involving the defendant.  The Superior Court concluded that the “public-safety officer’s rule” barred the plaintiff’s negligence claim.  On appeal, the plaintiff argued that the public-safety officer’s rule was inapplicable because the defendant failed to warn him that glare from the morning sun was impairing the vision of approaching motorists.
   
 The Supreme Court held that the Superior Court properly applied the public-safety officer’s rule.  The Court reasoned that a police officer responding to a roadside emergency could reasonably anticipate the risk of being struck by another vehicle.  The Court rejected the plaintiff’s assertion that a motorist who has just been in an accident on a public roadway has a legal duty to warn a responding police officer of the possible dangers of sun glare.
   
 Accordingly, the Court affirmed the judgment.
12-25112-251.pdfState of Rhode Island ex rel. Town of Little Compton v. David Simmons, No. 12-251 (March 25, 2014)
The state, through the Town of Little Compton, petitioned the Supreme Court for a writ of certiorari seeking review of a District Court decision that dismissed a charge of driving under the influence against the defendant, David Simmons.  Police officers from Little Compton located Simmons in Tiverton and transported him back to the scene of an automobile accident in which the defendant had been involved in Little Compton.  The defendant subsequently failed field-sobriety tests and was arrested.  The hearing judge dismissed the charges after she found that the police had effectively placed the defendant under arrest in Tiverton, which exceeded their authority because the arrest was outside their jurisdiction.  The Supreme Court granted the petition to consider whether the interaction in Tiverton between the defendant and the Little Compton police officers amounted to an arrest.

After a review of the record, the Supreme Court held that the defendant had not been arrested in Tiverton, after weighing the factors outlined in State v. Bailey, 417 A.2d 915, 917 (R.I. 1980).  Specifically, the Court held that even though the defendant’s freedom of movement had been curtailed, Simmons had not been subjected to any degree of force by law enforcement and had voluntarily accompanied the police back to Little Compton.  The Court concluded that a reasonable person in like circumstances would have felt free to leave.

Accordingly, the Supreme Court quashed the judgment of the District Court and remanded the case with its decision endorsed thereon.
11-36011-360.pdfPeter W. Russo v. State of Rhode Island, Department of Mental Health, Retardation and Hospitals et al., No. 11-360 (March 24, 2014)
The defendant, the Rhode Island Department of Mental Health, Retardation and Hospitals, appealed from a judgment of the Superior Court that was entered on November 8, 2010, following a bench trial.  The trial justice found in favor of the plaintiff Peter W. Russo holding that the defendant had violated the Rhode Island Whistleblowers’ Protection Act (WPA), G.L. 1956 chapter 50 of title 28, when it placed the plaintiff on administrative leave with pay and required that he undergo an independent medical examination (IME).  The defendant contended on appeal that the trial justice erred in finding: (1) that paid administrative leave and the requirement to undergo an IME constituted a “discharge, threat[], or * * * discriminat[ion]” under the WPA; (2) that the plaintiff had reported violations of a “law or regulation or rule promulgated under the law of [Rhode Island]” (which is one of the preconditions for obtaining relief under the WPA); (3) that there was a causal connection between the plaintiff’s reports at issue in the case and his placement on paid administrative leave; and (4) that the defendant did not have “legitimate nonretaliatory” grounds to place the plaintiff on paid administrative leave and require that he undergo an IME.

The Supreme Court held that placing an employee on paid administrative leave with the requirement that he or she undergo an IME, as happened in this case, did not constitute an action which “discharge[d], threaten[ed], or otherwise discriminate[d]” against the employee in violation of the WPA.  Accordingly, the Court vacated the decision of the Superior Court and held that the defendant did not violate the WPA.
11-9711-97.pdfState v. Nayquan Gadson, No. 11-97 (March 13, 2014)
The defendant, Nayquan Gadson, appealed the Superior Court’s judgment of conviction for second-degree robbery.  On appeal, the defendant contended that the trial justice erred: (1) in failing to dismiss the second-degree robbery charge in view of what the defendant contends was a “not guilty” finding by the jury on the lesser included offense of larceny from the person; (2) in denying the defendant’s motion to sever Count Six, which charged a codefendant (and him alone) with carrying a handgun without a license; and (3) in denying the defendant’s motion in limine seeking to “preclude the State from submitting or referring to: * * * any alleged connection between Gadson and the firearm used by [another person] to commit the robbery.”

The Supreme Court held that the defendant waived his right to have the Court consider his argument that the trial justice erred in failing to dismiss the second-degree robbery charge against him and his argument that the trial justice erred in denying his motion in limine.  The Supreme Court further held that the codefendant was properly joined in the indictment with the defendant under Rule 8 of the Superior Court Rules of Criminal Procedure and that the trial justice did not abuse his discretion in denying the defendant’s motion pursuant to Rule 14 of the Superior Court Rules of Criminal Procedure to sever Count Six against the codefendant from the trial of both of the defendants on Counts One through Five.

Accordingly, the Supreme Court affirmed the Superior Court’s judgment of conviction.
12-14112-141.pdfLangdon Wilby et al. v. Paul Savoie, Alias, No. 2012-141 (March 12, 2014)
The plaintiff, Paul Savoie, appealed from a judgment in favor of the defendants, Langdon Wilby and Tammy Emmett.  The plaintiff and the defendants were members of the board of directors of a Vermont corporation formed for the purpose of reconstructing and operating a defunct racetrack in the Town of Pownal, Vermont.  The plaintiff invested $350,000 in the venture before the project was ultimately abandoned due to issues surrounding the corporation’s ability to obtain a racetrack license.  The plaintiff brought claims against the defendants for breach of fiduciary duty, breach of contract, and fraud.  After a bench trial in Superior Court, the trial justice entered judgment for the defendants on all counts.

 On appeal, the plaintiff presented three arguments.  First, the plaintiff argued that the trial justice erred by failing to address the plaintiff’s claim that the defendants fraudulently induced him to invest in the corporation.  Second, the plaintiff argued that the trial justice erred by failing to hold the defendants accountable for their breach of fiduciary duties.  Third, the plaintiff argued that the trial justice made clear errors of fact, drew unreasonable inferences from the evidence, and overlooked and misconceived material evidence when he concluded that the plaintiff knew of, and was partially responsible for, the defendants’ mismanagement of the corporation.
 
The Supreme Court affirmed the judgment of the Superior Court.  The Supreme Court held that the trial justice did address the plaintiff’s fraud claim, and that the trial justice appropriately found no evidence of an intention to misrepresent or defraud.  The Supreme Court further held that the trial justice did not find that the defendants breached any fiduciary duties owed to the plaintiff, and that the trial justice’s findings on this issue were not clearly erroneous.  Finally, the Supreme Court held that the trial justice did not overlook or misconceive material evidence, nor were his factual findings clearly erroneous, with regard to the plaintiff’s knowledge of and participation in the mismanagement of the corporation.
11-10711-107.pdfCharles Burns et al. v. Moorland Farm Condominium Association, et al., No. 11-107 (March 10, 2014)
The defendant Moorland Farm Condominium Association (the association) appealed a judgment of the Superior Court that concluded that assessments to pay for repairs to decks attached to certain condominium units were illegal.  Condominium owners sued to avoid paying special assessments allocated to the repairs of decks in the condominium development.  The trial justice concluded that the decks were parts of the individual units rather than common areas and that therefore the repairs must be paid by the individual unit owners.

On appeal, the association first argued that the trial justice erred by allowing the case to proceed despite the absence of the unit owners who would bear the responsibility of paying for the repairs if the decks were not considered common areas.  The association additionally assailed the trial justice’s determination that the decks were not common areas and his decision to exclude an affidavit from an expert witness.  Finally, the defendant contended that the trial justice should have granted its motion for relief from judgment, filed according to Rule 60(b) of the Superior Court Rules of Civil Procedure, and that the motion did not warrant sanctions pursuant to Rule 11 of the Superior Court Rules of Civil Procedure.

The Supreme Court vacated the judgment of the Superior Court.  The declaratory-judgment act requires joinder of all parties who have an interest that may be affected by the declaration.  The plaintiffs did not join as parties to the lawsuit the owners of condominium units who would need to pay the reallocated assessments should the original assessments be declared illegal.  This was fatal to the action.

Accordingly, the Court declined to review the trial justice’s decision regarding whether the decks were common areas, whether to exclude the expert affidavit, or whether to grant the defendant relief from the judgment.  The Supreme Court determined, however, that the issue of the Rule 11 sanctions was reviewable and held that those sanctions were improper.
12-5912-59.pdfDonna Rose v. Christopher Cariello et al., No. 12-59 (March 4, 2014)
The defendants, Christopher Cariello and James Cariello, appealed from a judgment of the Superior Court granting the plaintiff’s motion for a new trial and/or additur, after a jury trial in this negligence action.  On appeal, the defendants argued that the trial justice erroneously substituted his own judgment for that of the jury in considering the facts of the case and that he erred in granting the motion for a new trial on the basis of the inadequacy of damages.
  
The Supreme Court concluded that the trial justice engaged in the proper analysis in considering the motion for a new trial and that his findings were supported by sufficient evidence in the record.  The Supreme Court also held that the trial justice was not clearly wrong in his determination that the jury’s award of damages was inadequate.  Accordingly, the Supreme Court affirmed the judgment of the Superior Court.
11-16311-163.pdfCarmella Bucci v. Hurd Buick Pontiac GMC Truck, LLC et al., No. 11-163 (March 4, 2014)
The plaintiff, Carmella Bucci, appealed entry of summary judgment in favor of the defendant, Hurd Buick Pontiac GMC Truck, LLC, Hurd Buick Pontiac GMC Truck, LLC d/b/a Regine Pontiac GMC, and Hurd Chevrolet, Inc.  The defendant fired the plaintiff at the age of seventy-two after the defendant had employed her three times over a period of five years.  The plaintiff filed claims of age and disability discrimination claiming that the defendant had unlawfully fired her.  In granting the defendant’s motions for summary judgment, the Superior Court declared that there were no genuine issues of material fact and that the defendants had not engaged in unlawful age or disability discrimination.  On appeal, the plaintiff argued that the trial justice erred in applying the three-step framework as outlined in McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973), which this Court adopted in Newport Shipyard, Inc. v. Rhode Island Commission for Human Rights, 484 A.2d 893, 898 (R.I. 1984).  Specifically, the plaintiff argued that the trial justice erred in finding that the defendant had met its burden of production in providing legitimate nondiscriminatory reasons for discharging her and that the plaintiff had not demonstrated that the reasons given for her termination were pretextual.

The Supreme Court held that the plaintiff’s claim of disability discrimination was not properly before the Court because the plaintiff did not develop this aspect of her appeal in the submitted brief.

The Supreme Court also held that because the defendant’s burden was limited to one of production and not persuasion under the second step of McDonnell-Douglas, the defendant had met this burden by proffering several legitimate reasons for the plaintiff’s discharge that were not discriminatory.  Finally, the Supreme Court held that the plaintiff had not shown that the defendant’s reasons for the plaintiff’s termination were pretextual.

Accordingly, the Supreme Court affirmed the judgment of the Superior Court.
12-35612-356.pdfReynalda Weeks v. 735 Putnam Pike Operations, LLC d/b/a Greenville Skilled Nursing and Rehabilitation, No. 12-356 (February 28, 2014)
The plaintiff, Reynalda Weeks, appealed from an order of the Providence County Superior Court entered on January 30, 2012, staying her employment discrimination case (brought pursuant to the Rhode Island Civil Rights Act (RICRA), G.L. 1956 chapter 112 of title 42, and the Rhode Island Fair Employment Practices Act (FEPA), G.L. 1956 chapter 5 of title 28) in that court and ordering that the “matter * * * be resolved through binding arbitration as required by the governing Collective Bargaining Agreement between the parties.” On appeal, plaintiff contended that the hearing justice erred when she granted defendant’s motion to stay because the collective bargaining agreement’s arbitration provision did not preclude the plaintiff from asserting her statutorily created rights (under the RICRA and the FEPA) in a judicial forum.

The Supreme Court held that the right to a judicial forum for claims brought specifically under the RICRA or the FEPA may be waived in a collective bargaining agreement only if that waiver is clear and unmistakable; the Court further held that the collective bargaining agreement in the instant case did not contain such a clear and unmistakable waiver. Consequently, the Court vacated the order of the Superior Court and held that the collective bargaining agreement did not require the plaintiff’s RICRA and FEPA claims to be arbitrated.
12-12912-129.pdfAlexander Rose v. State of Rhode Island, No. 12-129 (February 24, 2014)
The applicant, Alexander Rose, appealed from a Superior Court judgment denying his application for postconviction relief.  Rose previously pled nolo contendere to one count of first-degree child molestation and received a twenty-year sentence, with eight years to serve and twelve years suspended with probation.  In a post-conviction relief application filed in October 2010, Rose argued that he was no longer subject to the custody of his probation officer because he had successfully completed his period of probation.  The hearing justice denied Rose’s application, reasoning that Rose’s probationary period did not end until March 2014.
 
 On appeal, Rose argued that his “good-time” credits and credit for pre-trial confinement should have accelerated the end date of his probationary period.  After careful consideration, the Supreme Court rejected Rose’s arguments.  The Court held that Rose’s credits for good time were properly applied to reduce his term of incarceration but could not be used to reduce the overall length of his sentence below the mandatory minimum sentence of twenty years.  The Court likewise held that the amount of time that Rose spent confined while awaiting trial was correctly credited towards his eight-year term of incarceration but did not make his twenty-year sentence retroactive.  Accordingly, the Court affirmed the Superior Court’s judgment.   
12-23, 12-2412-23, 12-24.pdfBarbara C. Cayer v. Cox Rhode Island Telecom, LLC d/b/a Cox Communications et al., Nos. 12-23, 12-24 (February 21, 2014)
The plaintiff, Barbara C. Cayer, was injured after the car she was driving was rear-ended by a van driven by the defendant Nelson Ovalles.  Cayer filed suit against Ovalles, his wife, and the defendant Cox Rhode Island Telecom, LLC d/b/a Cox Communications (Cox).  At the time of the accident, Ovalles was acting as a cable technician on behalf of Cox and M&M Communications, Inc. (M&M), a contractor for Cox.  Cox obtained summary judgment after a Superior Court justice determined that Ovalles was not an employee of Cox.  The plaintiff then attempted to amend her complaint to add claims against M&M.  A different justice of the Superior Court denied that motion on the basis that the claims against M&M were untimely and did not relate back under Rule 15 of the Superior Court Rules of Civil Procedure.  Cayer appealed both decisions.

The Supreme Court held that summary judgment was proper because it was clear that Ovalles was not an employee of Cox.  The installation agreement between Cox and M&M specifically renounced any employer-employee relationship with M&M’s technicians.  Additionally, the facts indicated that Cox had no control over Ovalles’s method of performance.

The Supreme Court denied and dismissed the appeal of the denial of the plaintiff’s motion to amend.  The order was interlocutory, and none of the statutory or decisional exceptions applied to make review proper at this time.
12-26212-262.pdfNV One, LLC, et al. v. Potomac Realty Capital, LLC, et al., No. 12-262 (February 18, 2014)
The defendant, Potomac Realty Capital, LLC, appealed from the Superior Court’s grant of partial summary judgment in favor of the plaintiffs, NV One, LLC, Nicholas E. Cambio, and Vincent A. Cambio.  The defendant asserted that the trial justice erred when he granted the plaintiffs’ motion for partial summary judgment on liability for violation of the usury statute, G.L. 1956 § 6-26-2, by declaring the usury savings clause of the parties’ loan agreement unenforceable.  Neither party disputed that the interest rate was usurious; thus, the case turned on the enforceability of the usury savings clause.  The defendant argued that the Supreme Court should give effect to the clause and enforce the contract.

The enforceability of usury savings clauses was an issue of first impression in Rhode Island.  The Supreme Court affirmed the judgment of the Superior Court, holding that such clauses are against the state’s well-established policy of preventing usurious transactions.
12-16912-169.pdfJames W. Brown et al. v. Elmer Stanley et al., No. 12-169 (February 18, 2014)
One of the plaintiffs, Bluelinx Corporation, appealed from a Superior Court order granting the renewed motion for judgment as a matter of law and conditionally granting the motion for a new trial brought by the remaining defendants, Project Hope/Projecto Esperanza, Inc. and the Diocesan Bureau of Social Service.  The plaintiff brought this action seeking contribution for payments made to an individual who was struck by a vehicle owned by the plaintiff and operated by its employee, James W. Brown, while participating in a fundraising walk sponsored by the defendants.  On appeal, the plaintiff argued that although the defendants initially did not have a duty to provide for the safety of the participants, the defendants assumed a duty of care after taking steps to control traffic on the street where the participant was struck.  The plaintiff also argued that whether this duty was extinguished or breached was a question for the jury.

The Supreme Court affirmed the judgment of the Superior Court granting the defendants’ motion for judgment as a matter of law.  Because the Court concluded that, as a matter of law, there was no cognizable duty of care owed by the defendants in this case, the Court declined to address the trial justice’s decision conditionally granting a new trial.
12-1212-12.pdfState v. Jethro Rolle, No. 12-12 (February 18, 2014)
The defendant, Jethro Rolle, appealed from the Superior Court’s denial of his motion to dismiss a charge of second-degree sexual assault on double jeopardy grounds following the granting of a mistrial at the defendant’s behest.  On appeal, the defendant argued that the trial justice erred when he concluded that the prosecutor’s conduct at trial, which amounted to a violation of the rules of discovery, was not done with the intent to provoke a mistrial.
 
 The Supreme Court held that the trial justice did not err in concluding that the prosecutor lacked the specific intent to goad the defendant into moving to pass the case.  After thoroughly examining the record, the Court concluded that there was ample support for the trial justice’s finding that the prosecutor was not seeking to abort a rapidly derailing trial.  The Court therefore affirmed the trial justice’s decision.
11-38411-384.pdfDonna Banville v. Peter Brennan et al., No. 11-384 (February 7, 2014)
The defendants, Peter and Joyce Brennan, appealed from a judgment entered by the Superior Court in favor of the plaintiff, Donna Banville, in this boundary dispute between neighbors. On appeal, the Brennans argued that the trial justice erred in finding that the doctrine of acquiescence applied to establish the dividing line between the two lots.  The Brennans also argued that the trial justice erred in awarding damages to Banville based on the diminution in the fair market value of her real property as a result of the alleged encroachment by the Brennans.
 
The Supreme Court held that the trial justice had not overlooked or misconceived material evidence in determining the location of the boundary line between the parties’ respective lots.  The Supreme Court concluded that the evidence in the record supported the trial justice’s finding as to the establishment of the boundary line and his award of damages to the plaintiff.  Accordingly, the Supreme Court affirmed the Superior Court’s judgment in favor of the plaintiff.
12-29812-298.pdfWilliam Chhun et al. v. Mortgage Electronic Registration Systems, Inc., et al., No. 12-298 (February 3, 2014)
The plaintiffs, William Chhun and Joli Chhim, appealed from a Superior Court judgment granting the motion to dismiss of the defendants, Mortgage Electronic Registration Systems, Inc., Domestic Bank, Aurora Loan Services, LLC, and Deutsche Bank National Trust Company.  On appeal, the plaintiffs argued that the Superior Court justice erroneously held that they did not have standing to challenge the assignment of their mortgage and that he improperly granted the defendants’ motion to dismiss.

Based on its recent holding in Mruk v. Mortgage Electronic Registration Systems, Inc., No. 2012-282-A., slip op. at 13 (R.I., filed Dec. 19, 2013), the Supreme Court held that the plaintiffs have standing to challenge the assignment of their mortgage.  Additionally, the Court held that the plaintiffs alleged sufficient facts in the complaint to survive a motion to dismiss.  Accordingly, the Court vacated the judgment of the Superior Court and remanded the case for further proceedings.
11-20311-203.pdfState v. Raymond Clements, No. 11-203 (February 3, 2014)
The defendant, Raymond Clements, appealed from a judgment of conviction for two counts of murder, one count of arson, and one count of conspiracy.  Clements contended that the trial justice erred when he allowed evidence of a robbery committed during the day before the overnight murders, gave the jury a faulty instruction as to the proper use of that evidence, and denied a motion to pass the case.  The Supreme Court held that the evidence’s admission under Rule 404(b) of the Rhode Island Rules of Evidence, if error, was harmless.  The Court additionally held that the admission of the evidence did not violate Rule 403 of the Rhode Island Rules of Evidence.

The Court further held that the defendant’s objections to the jury instructions were not preserved, as he did not object to any of the three instructions that the trial justice gave the jury regarding the use of the robbery evidence.  Finally, the Court held that the denial of the motion to pass the case was not an abuse of discretion.

The Supreme Court affirmed the judgment of conviction.
11-37811-378.pdfState v. John H. Silva, No. 11-378 (February 3, 2014)
The defendant appealed from a judgment of conviction of the following offenses stemming from a shooting: two counts of assault with a dangerous weapon; two counts of discharging a firearm during a crime of violence; one count of carrying a handgun on his person without a license; and one count of discharging a firearm within a compact area.
 
On appeal, the defendant contended that the trial justice abused his discretion in denying his motion for a new trial. The defendant specifically argued that the trial justice overlooked and misconceived material evidence and failed to draw the appropriate inferences from the evidence presented because the testimony of two of the key witnesses at trial—Ramon Jimenez and John Nazario—was not credible.  The defendant further asserted that the verdict was against the fair preponderance of the evidence and failed to do substantial justice between the parties.

 The Supreme Court held that there was nothing in the record that would lead it to conclude that the trial justice was clearly wrong or that he overlooked or misconceived material and relevant evidence in denying the defendant’s motion for a new trial.  Accordingly, the Supreme Court affirmed the Superior Court’s judgment of conviction. 
10-5010-50.pdfState v. Linda A. Diamante, No. 10-50 (January 30, 2014)
The defendant, Linda A. Diamante, appealed from the Superior Court’s denial of a motion to seal her judicial records.  In Superior Court, the defendant moved to seal the record of a charge of felony assault with a dangerous weapon that was dismissed.  The trial justice denied the motion because the defendant opted to plead nolo contendere to a second charge in the same criminal case, and G.L. 1956 § 12-1-12.1(a) requires an individual to be “exonerated of all counts in a criminal case” as a precondition to having his or her record sealed.  The defendant contended that the trial justice’s denial of her motion was in error because, in her view, § 12-1-12(a) and § 12-1-12.1(a) are in conflict and, according to the defendant, § 12-1-12(a) mandates the sealing of her record.

The Supreme Court affirmed the trial justice’s denial, holding that the defendant’s record could not be sealed because the plain language of § 12-1-12.1(a) conditioned the sealing of a court record on a defendant being exonerated on “all counts” in a criminal case.  (Emphasis added.)  The Court further held that no conflict existed between § 12-1-12(a) and § 12-1-12.1(a) because § 12-1-12(a), when addressing the sealing of court records, provided that a court record shall be sealed if doing so is “consistent with § 12-1-12.1.”
10-36110-361.pdfState v. Mustapha Bojang, No. 10-361 (January 30, 2014)
The defendant, Mustapha Bojang, appealed from two convictions of first-degree child molestation sexual assault.  The defendant argued that the trial justice committed three errors that require this Court to vacate those convictions: (1) the denial of the defendant’s motion to suppress statements made to police during a post-arrest interrogation; (2) the refusal to allow cross-examination of the complainant about a false accusation of physical abuse by the complainant against her mother; and (3) the denial of the defendant’s motion for a new trial.

 The Court affirmed the trial justice’s denial of the motion for a new trial and held that the limitation on cross-examination was not error.  However, the Court remanded the case to the Superior Court in order for the trial justice to make additional findings of fact and credibility determinations concerning the voluntariness of the defendant’s confessions.
12-17312-173.pdfState v. Gabriel Santiago, No. 12-173 (January 15, 2014)
The defendant, Gabriel Santiago, appealed from a conviction for second-degree child molestation sexual assault.  On appeal, the defendant argued that the trial justice erred when she allowed the complaining witness to testify that the defendant’s body part was hard when she touched it.  The witness was able to recall this fact after having her recollection refreshed.  The defendant’s contention was that the state’s supplemental discovery responses indicated that the complaining witness did not remember whether the body part was hard and that her recollection could not be refreshed.

The Supreme Court held that the trial justice did not abuse her discretion in finding that no discovery violation had occurred.  When a witness’s recollection is refreshed, the witness’s in-court testimony, and not the memorandum used to refresh that recollection, is evidence.  Thus, the fact that the witness’s recollection was not refreshed before trial did not mean that the witness’s recollection could not be refreshed at trial.  The Supreme Court, therefore, affirmed the conviction.
11-30511-305.pdfState v. Paul Fleck, No. 11-305 (January 15, 2014)
The defendant, Paul Fleck, appealed from a judgment of conviction for one count of simple domestic assault in violation of G.L. 1956 § 11-5-3 and G.L. 1956 § 12-29-5.  On appeal, the defendant argued that the trial justice erred when she denied both his motion for judgment of acquittal under Rule 29 of the Superior Court Rules of Criminal Procedure and his motion for new trial under Rule 33 of the Superior Court Rules of Criminal Procedure because the weight of the evidence that Fleck and the complaining witness were in a substantive dating relationship as defined under § 12-29-2 was insufficient to support a conviction.

The Supreme Court held that the trial justice was not clearly wrong when she denied the motion for new trial. The trial justice reviewed all of the evidence presented, weighed the credibility of the witnesses, and said that she agreed with the verdict.  The Court further held that the Rule 29 motion was not preserved for appellate review but that, even if it had been, the Court would not have reached the issue because the Court affirmed the denial of the Rule 33 motion.

Accordingly, the Court affirmed the judgment of conviction.
12-23012-230.pdfState v. Christian Buchanan, No. 2012-230 (January 14, 2014)
The defendant, Christian Buchanan, appealed from a judgment of conviction of three counts of second-degree and one count of first-degree child molestation sexual assault.  On appeal, the defendant claimed that the trial justice abused her discretion in refusing to exclude all evidence of uncharged acts of molestation in violation of Rule 404(b) of the Rhode Island Rules of Evidence.  The defendant also argued that the trial justice erred in denying the defendant’s motion for judgment of acquittal and motion for a new trial, claiming that the evidence failed to prove that the crimes occurred at the location or within the time frame listed in the bill of particulars.  Finally, the defendant claimed that the trial justice erred in denying his motion for a new trial based on comments made by the prosecutor, which he contended were unduly prejudicial.
      
After careful review, the Supreme Court concluded that the defendant failed to properly preserve the evidentiary issue on appeal by failing to object to the proffered testimony.  The Court also held that the trial justice did not err in denying the defendant’s motion for a new trial or motion for judgment of acquittal.  Lastly, the Supreme Court concluded that because the defendant did not object to the trial justice’s limiting instructions after the inappropriate comments, the defendant failed to properly preserve the issue on appeal.  Accordingly, the Supreme Court affirmed the judgment of conviction.
12-11312-113.pdfChristopher Reynolds v. First NLC Financial Services, LLC, et al., No. 12-113 (January 10, 2014)
The plaintiff, Christopher Reynolds, appealed the granting of a motion for summary judgment by the Superior Court.  Reynolds defaulted on a mortgage loan.  He twice filed bankruptcy petitions, and each time Deutsche Bank National Trust Company (Deutsche Bank) obtained relief from the automatic stay to pursue foreclosure.  Deutsche Bank filed its second motion for relief from the stay after a foreclosure sale had taken place.  The plaintiff later filed a Superior Court action seeking a declaration that the foreclosure sale was void.  Summary judgment was granted based on res judicata, and the plaintiff appealed.

On appeal, the Supreme Court held that the elements of res judicata were satisfied.  The same parties litigated the issue of the propriety of the assignment of the mortgage when Deutsche Bank filed motions for relief from the stay, the second of which came after the foreclosure sale occurred.  In granting that second motion, the bankruptcy judge said that the completed sale was “valid.”  The bankruptcy concluded without appeal, so the order was final.

The judgment was affirmed.
12-32312-323.pdfNarragansett Indian Tribe v. State of Rhode Island and UTGR, Inc. d/b/a Twin River and Newport Grand, LLC,Intervenor Defendant, No. 12-323 (January 10, 2014)
The defendant, the State of Rhode Island, appealed from the entry of partial summary judgment in the Superior Court, holding that the plaintiff, the Narragansett Indian Tribe (Tribe), had standing to pursue its constitutional challenge to the 2011 Casino Act, G.L. 1956 § 42-61.2-1, as enacted by P.L. 2011, ch. 151, art. 25, § 2, which proposed the establishment of casino table games at the Twin River gambling facility.  On appeal, the state argued that the Tribe had not suffered an injury in fact from the Casino Act so as to give it standing and, further, that the hearing justice erred in finding that the public interest exception to standing applied.
  
The Supreme Court held that the Tribe had suffered an injury in fact because of the removal of some 200 video lottery terminal (VLT) machines from the Twin River establishment in order to accommodate the new table games as the Tribe is entitled to receive a percentage of the revenue from the VLT machines.  Accordingly, the Supreme Court affirmed the Superior Court’s judgment that the Tribe had standing to pursue its cross-appeal of the judgment of the Superior Court on the merits of its claims challenging the constitutionality of the Casino Act.
11-33811-338.pdfSteven Iadevaia v. Town of Scituate Zoning Board of Review, No. 11-338 (December 23, 2013)
The petitioner, Steven Iadevaia, appealed from a Superior Court judgment affirming a decision by the respondent, the Town of Scituate Zoning Board of Review, which denied the petitioner’s application for a building permit and dimensional variance.  On appeal, the petitioner argued that the trial justice erred when she affirmed the zoning board’s decision interpreting a frontage requirement in the Scituate Zoning Ordinance.  Further, the petitioner argued that, assuming the Scituate Zoning Ordinance did require frontage, his property had always consisted of two separate lots that had never merged and that, therefore, he was entitled to a dimensional variance for the nonconforming lot.  Finally, the petitioner argued that the trial justice erred when she invoked the doctrine of judicial estoppel to preclude the petitioner from advancing the argument that his property had always existed as two separate, discrete lots.

 The Supreme Court vacated the Superior Court judgment, holding that the trial justice overlooked substantial evidence in the record indicating that the petitioner owned two separate lots that never merged.  The Supreme Court also held that the trial justice erred by invoking judicial estoppel to prevent the petitioner from arguing that his property had always consisted of two lots.  Finally, the Court determined that the Scituate Zoning Ordinance did not contain a frontage requirement for the petitioner’s residential district and declined to read such a requirement into the ordinance.  The Court remanded the case to the Superior Court with instructions to remand the case to the respondent, the Scituate Zoning Board of Review, to treat the unimproved lot as a separate lot and not apply a frontage requirement to the petitioner’s application for a building permit.
 
12-213, 12-26812-213, 12-268.pdfSteven T. Burton v. State of Rhode Island et al., Nos. 12-213, 12-268 (December 20, 2013)
The plaintiff, Steven T. Burton, appealed a Superior Court decision in favor of the defendant, State of Rhode Island.  The seventeen-year-old plaintiff was injured while exploring the reputedly haunted site of the former Ladd Center.  Rather than encountering ghosts, the plaintiff and his companions discovered four glass bottles containing a clear liquid that was later revealed to be sulfuric acid.  As the plaintiff was attempting to exit a building on the property, one of the bottles broke, splashing him with its contents and severely burning him.
 
Conceding his status as a trespasser, the plaintiff sought recovery from the State of Rhode Island under the doctrine of attractive nuisance.  The Supreme Court affirmed the judgment of the Superior Court, holding that, because the plaintiff was old enough to appreciate the risk of breaking into an abandoned building and of transporting a substance which he admitted he had reason to believe was hazardous, the doctrine of attractive nuisance was inapplicable to this case.  Therefore, because the plaintiff was a trespasser whom the state did not discover in peril, as is required to establish a duty of care, the state owed him no such duty.
12-28212-282.pdfWalter J. Mruk, Jr. v. Mortgage Electronic Registration Systems, Inc., et al., No. 12-282 (December 19, 2013)
The plaintiff, Walter J. Mruk, Jr., appealed from the entry of summary judgment in the Superior Court in favor of defendants Mortgage Electronic Registration Systems, Inc. (MERS), IndyMac Mortgage Services (IndyMac), OneWest Bank, FSB (OneWest), and Federal National Mortgage Association (FNMA).  On appeal, plaintiff argued that the trial justice erred in holding that no genuine issues of material fact existed and that defendants were entitled to judgment as a matter of law.  The plaintiff also argued that the assignment of his mortgage from MERS to FNMA was not valid and that the foreclosure sale was not proper.
  
The Supreme Court held that homeowners in Rhode Island have standing to challenge an invalid, ineffective, or void assignment of a mortgage on their homes.  The Supreme Court rejected all of plaintiff’s other arguments on the merits based on its holding in Bucci v. Lehman Brothers Bank, FSB, 68 A.3d 1069 (R.I. 2013), and concluded that the assignment of the mortgage was valid and that FNMA had the authority to foreclose on Mruk’s property.  Accordingly, the Supreme Court vacated the judgment of the Superior Court as to standing but affirmed the judgment of the Superior Court on all other claims.
12-20112-201.pdfState v. Paul Castriotta, No. 12-201 (December 17, 2013)
The defendant, Paul Castriotta, appealed from an order of the Superior Court that denied his motion to vacate judgment and sentence.  The defendant alleged that his nolo contendere plea to second-degree child-molestation charges should be set aside because his attorney did not inform him that his attorney had a personal conflict in continuing to represent the defendant.  The attorney disclosed to the defendant that someone close to him had been the victim of a sexual assault similar in nature to the charges to which the defendant had admitted.  On appeal, the defendant argues that he was not adequately represented.

The Supreme Court concluded that the defendant’s appeal is not properly before the Court.  Under Rule 32(d) of the Superior Court Rules of Criminal Procedure, once the trial justice has imposed sentence, any issue that relates to the validity of the plea can be addressed only through postconviction relief.  Regardless, the Court noted that the alleged sexual assault that caused the attorney’s conflict did not occur until after the defendant had pleaded.

Accordingly, the Court affirmed the order.
11-25911-259.pdfJorge M. DePina v. State of Rhode Island, No. 11-259 (December 6, 2013)
Gelci Reverdes, who testified as an eyewitness in the 1998 murder trial of the applicant Jorge M. DePina, appealed from a Superior Court order denying her motion to quash a subpoena duces tecum seeking discovery of her medical, psychiatric, and psychological health care records.  On appeal, Reverdes argued (1) that the trial justice abused his discretion by denying the motion to quash, because the requesting party failed to show a particularized need for the information or that the information was relevant to the proceedings, and (2) that the trial justice failed to determine that the need for disclosure outweighed Reverdes’ privacy interests.
    
After a careful review of the record, the Supreme Court held that the trial justice erred in denying the motion to quash without first conducting the interest-weighing analysis required by the Rhode Island Confidentiality of Health Care Information Act, G.L. 1956 § 5-37.3-6.1(d), (e).  Accordingly, the Supreme Court vacated the order and remanded the case to the Superior Court to make additional findings consistent with § 5-37.3-6.1(d), (e).
12-25312-253.pdfState v. Jaylon Baker, No. 12-253 (December 5, 2013)
The defendant, Jaylon Baker, appealed from a Superior Court judgment of conviction of assault with a dangerous weapon, carrying a pistol without a license, and using a firearm while committing a crime of violence.  The trial justice’s denial of the defendant’s motion for a new trial provided the sole predicate of the appeal.  The defendant argued that the trial justice overlooked and misconceived material evidence when denying his motion for a new trial.  Specifically, the defendant asserted that the trial justice erred by accepting the testimony of the complaining witness (a police officer) over that of the defendant, because the complaining witness’s testimony was not credible and was not supported by the physical evidence.  The Supreme Court determined that the trial justice articulated adequate grounds for denying the defendant’s motion and did not overlook or misconceive material evidence when making his decision.  Accordingly, the Supreme Court affirmed the Superior Court’s judgment of conviction.
12-27312-273.pdfJoanne Miller v. Henry Saunders et al., No. 12-273 (December 5, 2013)
The plaintiff appealed from a Superior Court order granting summary judgment for the defendants.  The plaintiff challenged the trial justice’s rulings that the plaintiff’s deceased ex-husband created a valid custodial trust with regard to his life insurance proceeds and that this custodial trust did not violate a property settlement agreement executed by the plaintiff and the decedent in conjunction with their divorce.  The plaintiff argued that the decedent did not create a legally cognizable trust because the property settlement agreement required him to maintain his life insurance policy for the benefit of his minor children, and because his written declaration of trust did not comply with the statutory requirements for creating a custodial trust pursuant to the Rhode Island Uniform Custodial Trust Act.

 The Supreme Court held that the decedent did create a valid custodial trust and that this trust did not violate the terms of the property settlement agreement.  Specifically, the Supreme Court interpreted the phrase “in substance” in G.L. 1956 §§ 18-13-3(a), 18-13-18(b)(4), and held that this phrase does not require a verbatim recitation of the statute’s suggested language for the creation of a valid custodial trust.  The Supreme Court also held that the property settlement agreement was not ambiguous, and that its terms allowed the decedent to channel the insurance funds to his children by way of a custodial trust.
12-29712-297.pdfDennis Martin, in his capacity as Executor of the Estate of Camella L. Martin v. Michael Lawrence, alias, et al., No. 12-297 (December 5, 2013)
The plaintiff, Dennis Martin, as administrator of the estate of his mother, Camella L. Martin, appealed from a judgment entered by the Superior Court in favor of defendant, Michael Coyne, after a jury trial in an automobile accident negligence action.  The plaintiff also appealed from a denial of plaintiff’s motion for judgment as a matter of law or, in the alternative, for a new trial.  On appeal, plaintiff argued that the trial justice erred in granting defendant’s motion in limine to exclude a document entitled “Notice of Injury—Proof of Loss” which Mrs. Martin had filled out and submitted to Allstate Insurance Company in which she gave a brief description of how the accident occurred.  The plaintiff contended that the document should have been admitted pursuant to the business records exception of Rule 803(6) of the Rhode Island Rules of Evidence.  The plaintiff also argued that the trial justice erred in denying his motion for judgment as a matter of law or, in the alternative, for a new trial because the jury verdict was inconsistent with the evidence.
  
The Supreme Court rejected plaintiff’s argument, holding that the trial justice had not abused his discretion in excluding the document because it had not been properly authenticated as required by Rule 803(6).  The Court also held that the trial justice had not erred in denying plaintiff’s motion for judgment as a matter of law or for a new trial.  Accordingly, the Court affirmed the judgment of the Superior Court.
11-36411-364.pdfState v. Robert Raso, No. 11-364 (December 3, 2013)
The defendant, Robert Raso, appealed from a Superior Court judgment of conviction declaring him to be in violation of the terms of his probation and sentencing him to serve twenty-five years of his previously imposed sentence. The defendant argued that the complaining witnesses’s testimony was inconsistent and not credible and that, therefore, the hearing justice acted arbitrarily and capriciously in finding a violation.

 The Supreme Court affirmed the Superior Court’s decision, holding that the hearing justice had adequately explained the reasoning behind her credibility findings.  Further, the Court held that there was more than sufficient evidence adduced at the violation hearing to support the hearing justice’s credibility assessments and findings. 
12-16112-161.pdfState v. Charles Mitchell, No. 12-161 (November 27, 2013)
The defendant, Charles Mitchell, appealed from a Superior Court judgment of conviction of two counts of first-degree child molestation and five counts of second-degree child molestation.  On appeal, the defendant argued that the trial justice abused his discretion in admitting evidence of the defendant’s other bad acts under Rule 404(b) of the Rhode Island Rules of Evidence.  Second, the defendant challenged the trial justice’s denial of his motion for a new trial.  Finally, he ascribed error to the trial justice’s denial of his request for the appointment of new counsel prior to sentencing.

 The Supreme Court held that the trial justice did not abuse his discretion in admitting evidence that the defendant had allegedly molested the complainant’s sister.  In addition, the Court determined that the trial justice followed the proper procedure in ruling on the defendant’s motion for a new trial and did not overlook or misconceive material evidence.  Lastly, the Court concluded that the trial justice appropriately balanced the defendant’s right to counsel of his choice and the public’s interest in the expeditious administration of justice.  Thus, the Court upheld the trial justice’s denial of the defendant’s request for new counsel.
   
Accordingly, the Court affirmed the judgment.
12-212-2.pdfEloisa Gomes and Armando Gomes v. Mario Rosario, No. 2012-2 (November 27, 2013)
In this negligence action, resulting from an automobile collision, the defendant, Mario Rosario, appealed from a Superior Court judgment granting a new trial to the plaintiff, Eloisa Gomes.  After a seven-day trial, a jury found that Gomes had failed to prove, by a preponderance of the evidence, that Rosario was negligent.  The trial justice, however, granted the plaintiff’s motion for a new trial, finding that the jury’s assignment of “no liability to the defendant demonstrates that this court’s instructions were not clear or properly understood or applied by the jury in this case.”

The Supreme Court held that the trial justice did not overlook or misconceive material evidence in granting the plaintiff’s motion for a new trial.  Accordingly, the Court affirmed the judgment. 
10-7710-77.pdfGeorge E. Morabit v. Dennis Hoag, No. 10-77 (November 26, 2013)
The plaintiff, George E. Morabit, appealed from the Superior Court’s grant of judgments as a matter of law in favor of the defendant, Dennis Hoag.  The plaintiff sought damages for the defendant’s alleged destruction of a stone wall and removal of trees from his property.  On appeal, the plaintiff argued that the trial justice erred in: (1) precluding the testimony of his expert witness on the subject of historic stone walls; and (2) not allowing the jury to consider his evidence of damages for the removed trees.

After a careful review of the record, the Supreme Court held that the trial justice committed reversible error by not allowing the plaintiff’s expert to testify on the subject of stone walls.  The trial justice applied an overly stringent standard for the admission of expert testimony.  Even assuming that historic stone walls are a novel field of study, there were sufficient indicia of reliability to allow the jury to consider the expert’s opinions.

With regard to the plaintiff’s second assignment of error, the Court held that the trial justice had improperly granted the defendant’s motion for judgment as a matter of law.  The trial justice invaded the province of the jury by making findings of fact and weighing the plaintiff’s evidence of damages.  Accordingly, the Supreme Court vacated the judgment of the Superior Court and remanded the matter for further proceedings.
11-248, 12-32111-248, 12-321.pdfState v. Lawrence Clay, Nos. 11-248, 12-321 (November 20, 2013)
The defendant, Lawrence Clay, appealed from a Superior Court judgment of conviction, having been found guilty of kidnapping of a minor and reckless driving, and sentenced to sixty years with thirty years to serve and thirty years suspended, with probation. On appeal, the defendant argued that the trial justice erred in admitting testimony about a prior alleged sexual assault perpetrated by the defendant.  Further, the defendant argued that the trial justice erred in denying the defendant’s motion for a new trial.

 The Supreme Court determined that the evidence of the alleged sexual assault presented at trial related to one continuous event and was necessary in order for the jury to hear a complete and coherent rendition of what transpired relative to the kidnapping and reckless driving charges.  The Supreme Court affirmed the Superior Court judgment, holding that the evidence of the alleged sexual assault was not admitted merely to show the defendant’s bad character or propensity and was thus admissible under Rule 404(b) of the Rhode Island Rules of Evidence.

 The Supreme Court also affirmed the Superior Court judgment denying the defendant’s motion for a new trial, determining that the trial justice carefully considered all of the consistencies and inconsistencies in the evidence as well as the credibility of the witnesses.
12-13112-131.pdfState v. Harold T. Drew, No. 12-131 (November 19, 2013)
The defendant, Harold T. Drew, appealed from a Superior Court order denying his motion for a new trial based on newly discovered evidence.  The defendant was convicted in 2004 on one count of first-degree murder, one count of discharging a firearm while committing a crime of violence, and three counts of entering a dwelling with the intent to commit a larceny therein.
 
After his conviction, the defendant became aware of a narrative written by a detective from the Swansea Police Department prior to the defendant’s trial.  The narrative was written in connection with an investigation of breaking-and-entering crimes that occurred in Massachusetts.  The defendant filed a motion for a new trial pursuant to Rule 33 of the Superior Court Rules of Criminal Procedure, arguing that the narrative disclosed new, material evidence concerning a cooperation agreement between the Swansea Police Department, the Rhode Island State Police, and a prominent state’s witness in the defendant’s murder trial.  The defendant also argued that the narrative evidenced the state’s failure to disclose information in violation of his constitutional due-process rights.  The trial justice conducted an evidentiary hearing and found that the narrative did not present new evidence and that the evidence was merely cumulative and impeaching.
 
 The Supreme Court affirmed the order of the Superior Court.  The Supreme Court held that the trial justice did not overlook or misconceive relevant and material evidence when ruling on the defendant’s motion.  The Supreme Court further held that the defendant’s constitutional due-process rights were not violated because the state did not fail to disclose information.
12-5212-52.pdfJohn C. O’Donnell, III v. Anne A. O’Donnell, No. 12-52 (November 18, 2013)
The plaintiff, John C. O’Donnell, III, appealed from a Family Court order directing him to comply with a provision in a divorce settlement agreement that required him to maintain health insurance for the defendant, Anne A. O’Donnell.  On appeal, the plaintiff claimed that because there was no written marital settlement agreement, there was no meeting of the minds sufficient to form an enforceable agreement.  The plaintiff argued that a stenographic record of an oral agreement reached in open court is not sufficient to form a nonmodifiable marital settlement agreement.

After reviewing the record, the Supreme Court concluded that the Family Court justice did not err or abuse her discretion in finding that the parties recited and assented to the terms of their agreement in open court, and that the parties intended and agreed that the transcript of that agreement would serve as their marital settlement agreement.  Accordingly, the Supreme Court affirmed the Family Court order. 
12-24712-247.pdfCynthia Caluori v. Dexter Credit Union, No. 2012-247 (November 18, 2013)
The plaintiff, Cynthia Caluori, appealed from a Superior Court judgment in favor of the defendant, Dexter Credit Union, denying her claim for an easement over Dexter’s property.  Mrs. Caluori had sought a declaratory judgment that an easement by prescription and an easement by implication existed that gave her the right to use a paved driveway on the northern border of her property.  On appeal, the plaintiff argued that the trial justice erred in finding that, because she had previously acknowledged the defendant’s superior title and because her use of the driveway was open but not notorious, she had failed to prove the existence of a prescriptive easement.  Further, the plaintiff argued that the trial justice erred in holding that she had not established an implied easement.

 The Supreme Court held that the trial justice erred by relying solely on the original warranty deed, as well as a notice of intent to dispute which was not offered in evidence, to defeat the plaintiff’s claim of hostility and claim of right.  Further, the Supreme Court held that, under the facts of this case, there was no distinction between the requirements of open and notorious use and because the plaintiff had proven her use of the disputed parcel was open, it follows that the use was notorious.  The Supreme Court vacated the portion of the Superior Court judgment that held that Ms. Caluori had not established notorious use, and it directed the Superior Court on remand to make further findings regarding the element of hostility.

Finally, the Supreme Court held that there was no implied easement because Mrs. Caluori had not clearly and convincingly proven that the disputed property was “reasonably necessary for the convenient and comfortable enjoyment of the property” at the time of severance. Vaillancourt v. Motta, 986 A.2d 985, 987 (R.I. 2009) (quoting Wiesel v. Smira, 49 R.I. 246, 250, 142 A. 148, 150 (1928)).
12-1112-11.pdfState v. Emanuel Baptista, No. 12-11 (November 18, 2013)
The defendant, Emanuel Baptista, appealed from a judgment of conviction after a jury trial declaring him guilty of two counts of first-degree child molestation and two counts of first- degree child abuse on a child under the age of five.  On appeal, the defendant argued that the trial justice erred in denying his motion for a new trial by having overlooked and misconstrued material and relevant evidence.  The defendant also claimed the trial justice erred because the jury verdict failed to do substantial justice between the parties.
  
After a thorough review of the record and the trial justice’s articulated reasoning in refusing to grant a new trial, the Supreme Court concluded that the trial justice independently weighed the testimony, evaluated the credibility of the witnesses, and did not overlook or misconstrue material evidence.  The Supreme Court also held that the trial justice did not need to examine the verdict for substantial justice because she agreed with the jury’s verdict of guilty.  Accordingly, the Supreme Court affirmed the judgment of conviction.
07-14507-145.pdfState v. Kendall Whitaker, No. 07-145 (November 13, 2013)
The defendant, Kendall Whitaker, appealed from a judgment of conviction for (1) murder, (2) robbery, (3) assault with a dangerous weapon, (4) carrying a handgun without a license, (5) using a firearm in the commission of a crime of violence, (6) discharging a firearm in the commission of a crime of violence, and (7) committing a crime of violence while armed and having available a firearm.  Whitaker argued that the trial justice committed error when she denied his motion for new trial, gave the jury confusing or improper instructions, denied his motion for judgment of acquittal, instructed the jury that the defendant was in custody without alerting the defendant that she was contemplating such an instruction, allowed too many leading questions by the state, and failed to record bench conferences.

The Supreme Court held that the trial justice’s analysis in her denial of the motion for new trial reveals specific factual findings that indicate that she found truth in some witnesses’ testimony despite her stated concern about the credibility of most of the witnesses.  The Court held that the jury instructions were warranted by the evidence, were not confusing, and accurately set forth the state’s burden of proof.  The motion for judgment of acquittal was properly denied because the state’s theory did not require impermissibly pyramiding inferences.

The Court determined that the trial justice should not have informed the jury that the defendant was in custody without following the procedure set forth in State v. Fenner, 503 A.2d 518 (R.I. 1986), but held that, based on the content of the instruction and the lack of an objection or motion to pass, reversible error had not occurred.

Finally, the Supreme Court held that the use of leading questions was not beyond the bounds allowed in a trial justice’s discretion and that the defendant failed to indicate what was said at unrecorded bench conferences, to what he objected, and how he was prejudiced, thereby precluding relief based on that argument.

The Court affirmed the judgment of conviction.
11-31111-311.pdfState v. Donald Young, No. 11-311 (November 7, 2013)
The defendant, Donald Young, appealed from a judgment of conviction for (1) the murder of Kasean Benton in violation of G.L. 1956 § 11-23-1, (2) conspiring to murder in violation of G.L. 1956 § 11-1-6, (3) discharging a firearm during the commission of a violent crime resulting in the death of another in violation of G.L. 1956 § 11-47-3.2, (4) assault with a dangerous weapon on Dukuly Torell Soko in violation of G.L. 1956 § 11-5-2, (5) conspiring with others to assault Soko with intent to murder in violation of § 11-1-6, (6) discharging a firearm while committing a crime of violence in violation of § 11-47-3.2, and (7) possession of an unlicensed firearm in violation of § 11-47-8(a).  On appeal, the defendant argued that the trial justice erred when he admitted evidence of gang affiliation and the earlier stabbing of one of the victims and testimony about an unsolved homicide.  The defendant further argued that his constitutional right against double jeopardy was violated because count 4, assault with a dangerous weapon with intent to murder, merged with count 6, discharging a firearm while in the commission of a crime of violence.
 
The Supreme Court held that the defendant had failed to preserve the issue about the admission of evidence and had waived that issue on appeal.  The Supreme Court further held that there was no double-jeopardy violation because this Court had previously determined in State v. Marsich, 10 A.3d 435, 442 (R.I. 2010), that the General Assembly clearly intended that consecutive sentences be imposed for certain crimes of violence committed by use of a firearm.

Accordingly, the Court affirmed the judgment of conviction.
12-22912-229.pdfOption One Mortgage Corporation v. Aurora Loan Services, LLC, as servicer for Mortgage Electronic Registration Systems, Inc., No. 12-229 (November 5, 2013)
The defendant, Aurora Loan Services, LLC, appealed from a grant of summary judgment by the Superior Court in favor of the plaintiff, Option One Mortgage Corporation (Option One), holding that the mortgage held by Option One was superior to the mortgage held by Aurora.  On appeal, Aurora argued that the trial justice was in error in concluding that a reference to a prior deed in the Option One Mortgage description was sufficient to put a subsequent mortgage holder on notice to make further inquiry as to the exact property encumbered by the Option One Mortgage.
 
The Supreme Court rejected Aurora’s argument, relying on its prior decision in In re Barnacle, 623 A.2d 445 (R.I. 1993).  The Court held that the reference to a prior deed in the Option One Mortgage, in addition to the tax assessor’s plat and lot number and street address, were sufficient to put a subsequent mortgage holder on constructive notice of the lot being encumbered by the Option One Mortgage.  Accordingly, the Court affirmed the grant of summary judgment in favor of the plaintiff, Option One.
10-028310-0283.pdfState v. Victor M. Lopez, No. 10-283 (November 5, 2013)
The defendant, Victor M. Lopez, appealed from a Superior Court conviction for breaking and entering and for felony assault with a dangerous weapon.  On appeal, he argued that the trial justice erred in (1) denying his motion for a new trial; (2) not permitting defense counsel to question potential jurors about eyewitness testimony during voir dire; and (3) denying his motion for a judgment of acquittal on the charge of felony assault.
  
The Supreme Court held that the trial justice had not erred and had not overlooked or misconceived material evidence in denying Lopez’s motion for a new trial.  The Court also held that the trial justice did not abuse his discretion in curtailing during voir dire defense counsel’s questioning of potential jurors as to eyewitness testimony.  Finally, the Court held that the trial justice had not erred in denying the motion for a judgment of acquittal because the evidence supported the conviction of felony assault. 
12-15412-154.pdfState v. Brian Mlyniec, No. 12-154 (November 5, 2013)
The defendant, Brian Mlyniec, appealed from the order of the Superior Court denying his motion to reduce sentence under Rule 35 of the Superior Court Rules of Criminal Procedure.  The defendant alleged that his sentence of life imprisonment without parole for the first-degree murder of Kelly Anderson, which involved aggravated battery, was inappropriate because he was capable of rehabilitation.  On appeal, the defendant argued that the hearing justice abused his discretion in denying the motion to reduce the sentence.

The Supreme Court concluded that the hearing justice identified several circumstances to justify the defendant’s sentence including the severity and brutality of the crime and the defendant’s persistent refusal to take responsibility for Ms. Anderson’s murder.  The Court held that the sentence was neither without justification nor grossly disparate from other sentences generally imposed for similar offenses.

 Accordingly, the Court affirmed the judgment.
12-23212-232.pdfIn re Lauren B. et al., No. 12-232 (November 4, 2013)
The respondent appealed from a Family Court decree terminating his parental rights with respect to his daughters.  On appeal, the respondent argued that the Family Court trial justice erred in finding that: (1) the Department of Children, Youth, and Families (DCYF) made reasonable efforts to reunite his family; (2) there was no substantial possibility that the children could safely return to his care within a reasonable period of time; and (3) he had abandoned his daughters.

 The Supreme Court affirmed the Family Court’s decree terminating the respondent’s parental rights.  The Court concluded that the evidence of record showed that DCYF had offered the respondent services aimed at correcting the reasons the children had been placed in care, but the respondent refused to cooperate with DCYF.  Accordingly, the Court held that there was ample evidence to support the trial justice’s finding that there was clear and convincing evidence of DCYF’s reasonable efforts to reunite the respondent with his daughters.  The Court further held that, in light of the respondent’s failure to complete the requirements of his case plans, there was no error in the trial justice’s finding that the children could not safely return to the respondent’s custody within a reasonable period of time. 
           
 The Supreme Court declined to pass on the respondent’s additional allegation of error.
12-17412-174.pdfAnthony Perkins v. State of Rhode Island, No. 12-174 (November 4, 2013)
The applicant, Anthony Perkins, appealed from a judgment of the Superior Court denying his postconviction-relief application.  Perkins had previously pled nolo contendere to two counts of second-degree child molestation, and he applied for postconviction relief based on his assertion that his counsel erroneously advised him that a plea was necessary to prevent the state from attempting to revoke his probation stemming from an earlier robbery conviction.  Perkins argued that the advice was erroneous because the robbery conviction was entered after the acts underlying the molestation charges.  On appeal, Perkins contends that the trial justice erred when he denied the application.

The Supreme Court held that there was no basis to conclude that the trial justice committed error when he found that the applicant had never received the advice that he contended was erroneous.  The Court further held that, even if such advice had been given to him, the applicant could not show the prejudice required to prevail on his claim because the sentence he received pursuant to his plea agreement was more favorable than the sentence he could have received had he been convicted after a trial.

The Supreme Court affirmed the judgment of the Superior Court.
195,359195,359.pdfPeter Wyso v. Full Moon Tide, LLC., et al., Nos. 12-195, 12-359 (November 1, 2013)
In these consolidated appeals, the plaintiff, Peter Wyso appealed a Superior Court entry of summary judgment in favor of the defendants, Full Moon Tide LLC and Strings & Things, Inc. and Deborah and Frederick Howarth.  While vacationing on Block Island, the plaintiff fell and suffered injuries on a deteriorated sidewalk in front of 104 Water Street.  The plaintiff filed a negligence claim against the tenants and owners of property abutting a public sidewalk at 104 Water Street in New Shoreham claiming that the defendants owed the plaintiff a duty of care.  The plaintiff made no argument that the defendants were in any way responsible for the condition of the sidewalk.  In granting the defendants’ motions for summary judgment, the Superior Court declared that there were no genuine issues of material fact and that the defendants owed the plaintiff no duty of care for the condition of the sidewalk.  The plaintiff argued that this Court can find a duty of care based on the five-factor ad hoc approach we took in Banks v. Bowen’s Landing Corp., 522 A.2d 1222 (R.I. 1987).  The plaintiff also contended that a New Shoreham municipal ordinance, which establishes that owners, or agents of owners, of property abutting public sidewalks have a duty to maintain sidewalks in good order and repair, creates a duty of care that runs to individual passersby.

The Supreme Court held that the ad hoc duty of care approach in Banks was not applicable to this case because the defendants did not possess or control the sidewalk.  The Supreme Court also held that consistent with previous jurisprudence, the municipal ordinance in question only established a duty of care to the town of New Shoreham, not to individuals.  Accordingly, the Supreme Court affirmed the Superior Court’s grant of summary judgment.
12-12512-125.pdfEddie M. Linde v. State of Rhode Island, No. 12-125 (October 31, 2013)
The applicant, Eddie M. Linde, appealed from a judgment of the Superior Court denying his application for postconviction relief.  Linde was convicted of second-degree murder and related firearms offenses.  Before this Court, he contended that (1) the mandatory consecutive life sentence imposed under G.L. 1956 § 11-47-3.2 for discharging a firearm while committing a crime was unconstitutional; (2) the conviction and sentence for second-degree murder and discharging a firearm while committing a crime of violence resulting in death violates the Double Jeopardy Clause of the United States Constitution and article 1, section 7 of the Rhode Island Constitution; and that (3) trial counsel was constitutionally ineffective because (a) he failed to argue that the applicant was so intoxicated that he was incapable of knowingly, intelligently, or voluntarily waiving his right to remain silent; and (b) he failed to present a manslaughter defense based on diminished capacity at the plea-bargaining stage and again, at trial.
  
 After careful review of the record, the Supreme Court affirmed the denial of Linde’s application.  The Court held that Linde’s convictions and sentences did not violate either double jeopardy principles or cruel and unusual punishment proscriptions of the state and federal constitutions.  Additionally, the Court held that Linde’s trial counsel was not constitutionally ineffective because a diminished capacity defense would have conflicted with trial strategy and his client’s wishes.
12-25512-255.pdfJeanne E. Johnson v. QBAR Associates, No. 12-255 (October 29, 2013)
The plaintiff, Jeanne E. Johnson, appealed from a grant of summary judgment in favor of the defendant, QBAR Associates, concerning an action filed seeking to vacate a final decree foreclosing the plaintiff’s right to redeem property after a tax sale.  On appeal, the plaintiff argued that the notices of the petition to foreclose were inadequate because both referred to a tax sale and tax deed from the tax collector of the Town of Cumberland, rather than the North Cumberland Fire District.  The plaintiff also argued that a final decree barring her right of redemption could not have entered without a default having first entered against her.
      
After a careful review of the record, the Supreme Court concluded that, under the facts of the case, the plaintiff’s challenge to the validity of the final decree was properly limited to the grounds enunciated in G.L. 1956 § 44-9-24.  The Court determined that there was no indication that the plaintiff received inadequate notice of the petition or was otherwise deprived of due process in the foreclosure proceedings.  The Court also held that, pursuant to § 44-9-30, a default need not enter prior to entry of a final decree foreclosing upon the right of redemption.  Accordingly, the Supreme Court affirmed the judgment of the Superior Court.
12-6112-61.pdfDennis D. Bossian v. Paul A. Anderson, No. 12-61 (July 2, 2013)
The plaintiff, Dennis D. Bossian, appealed from the Superior Court’s grant of judgment as a matter of law in favor of the defendant, Paul A. Anderson.  On appeal, the plaintiff argued that the trial justice erred:  (1) in concluding that damages for loss of reputation were not awardable; (2) in finding that the term “smoking gun” was not slanderous per se; and (3) in failing to submit his breach of fiduciary duty claim to the jury.
 
Because the Supreme Court was satisfied that the plaintiff was fully heard—as he conceded several times in open court—on the issue of damages, the Court concluded that the plaintiff’s claims of error were without merit.  As to the plaintiff’s claim for damages for loss of reputation, the Court held that the plaintiff failed to proffer evidence of his damages and that, therefore, the trial justice did not err when she rejected this claim.  With respect to the plaintiff’s claim of slander per se, the Court concluded that the trial justice properly dismissed the claim because, even if the phrase “smoking gun” was used, such term did not rise to the level of slander per se.  As to the plaintiff’s final claim—breach of fiduciary duty—the Court concluded that the plaintiff failed to present sufficient evidence of damages even if the defendant’s alleged breach of fiduciary duty had been established.
  
Accordingly, the Court held that the plaintiff had failed to prove his case and that the trial justice properly granted judgment as a matter of law.  Therefore, the Supreme Court affirmed the judgment of the Superior Court.
11-34511-345.pdfState v. Blake Covington, No. 11-345 (July 2, 2013)
The defendant, Blake Covington, appealed from a judgment of conviction for multiple counts of felony assault and of using a firearm while committing a crime of violence and one count of carrying a pistol or revolver without a license.  There were three facets to the defendant’s appeal.  First, the defendant contended that the trial justice erred in admitting a statement the victim made to police shortly after he was shot by the defendant.  Second, the defendant argued that the trial justice deprived him of his right to present a full defense by precluding him from presenting his third-party-perpetrator evidence.  Lastly, the defendant claimed that the trial justice erred when he denied the defendant’s motion for a new trial.

The Supreme Court held that the trial justice did not abuse his discretion in admitting the victim’s statement to police because the statement was relevant and its probative value was not substantially outweighed by the danger of unfair prejudice.  The Court also determined that the trial justice did not abuse his discretion in excluding the defendant’s proffered third-party-perpetrator evidence because that evidence was either too speculative or constituted improper opinion testimony.  Finally, the Court concluded that the trial justice complied with the new-trial-motion procedure, articulated adequate reasons for denying the motion, and did not overlook or misconceive material evidence or otherwise clearly err.  Accordingly, the Court affirmed the judgment.
12-8612-86.pdfKaren Lombardi v. City of Providence et al., No. 12-86 (July 2, 2013)
The state appealed from the entry of summary judgment entered on the claim of the plaintiff, Karen Lombardi, in favor of its codefendant, the City of Providence (city).  The state argued that the trial justice erroneously determined that the city had no duty to maintain the sidewalk where the plaintiff fell and was injured.

The Supreme Court held that, because the state had chosen not to assert a cross-claim for contribution or indemnification against the city in accordance with Rule 13(g) of the Superior Court Rules of Civil Procedure, the state was not sufficiently “aggrieved by” the judgment, as required by G.L. 1956 § 9-24-1.  Accordingly, the Court determined that the state lacked standing to prosecute the appeal, and the judgment was affirmed.
12-8012-80.pdfAmerican States Insurance Company v. Joann LaFlam, No. 12-80 (July 2, 2013)
The plaintiff, American States Insurance Company (ASIC), filed a declaratory judgment action in the United States District Court for the District of Rhode Island against the defendant, Joann LaFlam (LaFlam), seeking a declaration that LaFlam’s claim for uninsured/underinsured motorist (UM/UIM) coverage against ASIC was time-barred under the insurance policy’s limitations period.  The pertinent clause of the policy provided that the insured must initiate legal action against ASIC or make a written demand for arbitration within three years after the date of the accident.  The District Court entered judgment on the pleadings in favor of ASIC, concluding that the clause was not void as against the public policy of this state and operated to bar LaFlam’s claim for UM/UIM coverage.  LaFlam appealed to the United States Court of Appeals for the First Circuit, and the Court of Appeals certified the following question to this Court:
“In light of the UM/UIM statute[, G.L. 1956 § 27-7-2.1,] and Rhode Island public policy, would Rhode Island enforce the two provisions of the contractual limitations clause in this case?”

 The Supreme Court held, as a matter of first impression, that an insured’s cause of action against his or her UM/UIM carrier accrues on the date that the UM/UIM contract allegedly is breached, which is the date on which the UM/UIM insurer denies the claim or clearly rejects a demand for payment or arbitration under the UM/UIM policy.  The Court next determined that the clause of the ASIC insurance policy, which both shortened the period in which a UM/UIM claim may be asserted from the ten-year statute of limitations and fixed a date on which that shortened period begins to run that is earlier than the accrual date for the cause of action, was void and unenforceable as against public policy.  Accordingly, the Court answered the certified question in the negative.
10-43710-437.pdfWellington Condominium Association et al. v. Wellington Cove Condominium Association et al., No. 10-437 (June 26, 2013)
The plaintiffs, Wellington Condominium Association, Wellington Hotel Association, John Rizzo, Arthur Leonard, and Frederick Howayeck (collectively, the plaintiffs), appealed from a Superior Court judgment denying their claims for an easement across the property of the defendants, Wellington Cove Condominium Association, Wellington On The Harbor Condominium Owners’ Association, and Harrington Court Condominium, LLC (collectively, the defendants).  On appeal, the plaintiffs assigned error to the trial justice’s finding that the plaintiffs had failed to establish the elements of an implied easement.  The plaintiffs also challenged the trial justice’s conclusion that an express easement was not created by the condominium declaration.

After careful review, the Supreme Court affirmed the trial justice’s judgment with respect to the plaintiffs’ claim of express easement.  The Court concluded that the language of the declaration was clear: the declaration granted reasonable rights of way over and across defendants’ property to provide adequate access only with regard to any amenities that are located “in, by, along or adjacent to Narragansett Bay.”  The Court held that the disputed right of way did not fall within the purview of that language. 

As to the plaintiffs’ claim of implied easement, the Court determined that the trial justice’s analysis was incorrect because it proceeded under the framework of an implied easement by reservation and rested on the erroneous conclusion that the plaintiff condominium association conveyed a portion of its land without expressly reserving a right of way to itself.  The Court concluded that the claim of implied easement must turn on a determination of which party was the common owner of the property vested with the right to reserve an easement unto itself.
 
Based on that conclusion, the Court reasoned that the plaintiffs were powerless to prevent the assignment of rights and subsequent withdrawal of the defendants’ premises, and the plaintiffs were likewise unable to reserve anything to themselves.  Therefore, the plaintiffs could not be deemed to be grantors, nor could they be characterized as a common owner who conveyed a portion of the estate.  Instead, the Court concluded that, based on its examination of the condominium documents, that, at all times relevant, the successor declarant was the common owner.  Because the common owner severed a portion of its estate—the servient parcel—and retained it for further development, the Court held that a different analysis must be undertaken.  Rather than framing the claim as an implied easement by reservation, it must be examined as an implied easement by grant, and the plaintiffs’ claim now must be examined under those principles.
 
The plaintiffs’ appeal was sustained in part and denied in part.  The Court vacated the judgment of the Superior Court with respect to its determination of the claim of an implied easement, affirmed the judgment in all other respects, and remanded the case for further proceedings.
11-26511-265.pdfState v. Kenneth W. Keenan, No. 11-265 (June 26, 2013)
This Court granted the State of Rhode Island’s petition for a writ of certiorari seeking review by this Court of the Superior Court’s grant of the defendant’s motion to reduce sentence pursuant to Rule 35 of the Superior Court Rules of Criminal Procedure.
 
After a careful review of the record, the Supreme Court held that the trial justice erred in hearing and deciding the motion on a second date; the Court found that the trial justice had already adjudicated the merits of the first motion.
 
Accordingly, the Supreme Court quashed the judgment of the Superior Court.
11-14,15,17,1811-14,15,17,18.pdfLori Noel Meyer v. Patrick W. Meyer, Nos. 11-14, 11-15, 11-17, 11-18 (June 26, 2013)
The defendant, Patrick W. Meyer, filed four appeals, which the Supreme Court Court later consolidated, all relating to a divorce action that was commenced in April of 2009 when the plaintiff, Lori Noel Meyer, filed a complaint for divorce against the defendant.  Patrick Meyer pressed four issues on appeal: (1) whether or not the trial justice erred in denying Patrick’s motion to dismiss for lack of subject matter jurisdiction, which motion contended that Lori was not a resident of Rhode Island in accordance with the pertinent statute; (2) whether or not the trial justice erred in awarding Lori rehabilitative alimony; (3) whether or not the trial justice erred with respect to an award of counsel fees; and (4) whether or not the trial justice erred in adjudging Patrick in contempt of court.
 
The Supreme Court first considered the issue of the Family Court’s subject matter jurisdiction, which required that Lori Noel Meyer was a domiciliary of Rhode Island and had resided within the state for the year prior to the filing of the complaint for divorce.  After a careful review of the record, the Supreme Court held that there was sufficient evidence from which the trial justice could determine that Lori was a resident of the state of Rhode Island at the relevant time and that, therefore, the Family Court had subject matter jurisdiction over the divorce action.  The Supreme Court additionally considered the awards of rehabilitative alimony; it held that the trial justice considered the required statutory factors and did not abuse his discretion in making such award.  The Court was divided as to the award of counsel fees and therefore affirmed the Family Court’s award.  Finally, the Supreme Court reviewed the order and judgment relating to the adjudication of contempt of court.  The Court held that the trial justice did not abuse his discretion in finding that the defendant (who had sought a divorce in France) had violated an explicit order of the Family Court, which order had enjoined and restrained him from proceeding with a divorce action in France or in any other jurisdiction.

Accordingly, the Supreme Court affirmed all orders and judgments of the Family Court from which the defendant had appealed.
09-34009-340.pdfState v. Derrick R. Oliver, No. 09-340 (June 26, 2013)
The defendant appealed from a judgment of conviction on five criminal counts.  On appeal, the defendant contended that the charges against him should have been dismissed because the state did not bring him to trial within the timeline designated within the Interstate Agreement on Detainers Act, G.L. 1956 chapter 13 of title 13 (the IADA).  He also argued that his convictions for larceny and assault with a dangerous weapon violated the Double Jeopardy Clauses of the United States and Rhode Island Constitutions.

The Supreme Court held that, because the defendant requested numerous continuances and never objected to the continuances requested by the state, the trial court did not err in denying his motion to dismiss based on the IADA deadline.  The Court also held that the larceny and assault convictions did not violate the Double Jeopardy Clauses because the convictions punished two distinct acts of the defendant.

Accordingly, the Supreme Court affirmed the Superior Court’s judgment of conviction.
11-19311-193.pdfState v. Marcus Huffman, No. 11-193 (June 26, 2013)
The defendant, Marcus Huffman, appealed from a judgment of conviction following a jury trial, at the conclusion of which the jury found him guilty of first degree sexual assault stemming from an incident that occurred in March of 2007.  He raised three issues on appeal.

Prior to trial, the defendant moved to dismiss the indictment against him because, he contended, certain gaps in the recording of the grand jury proceedings deprived him of sufficient notice and due process and also violated Rule 6 of the Superior Court Rules of Criminal Procedure; on appeal, he challenged the denial of his motion to dismiss the indictment.  The Supreme Court held that, based upon the totality of the record of the grand jury proceedings, the denial of the motion to dismiss the indictment was not error.

At the defendant’s trial, information surfaced during the redirect examination of the complaining witness that had not been previously disclosed to the defendant.  He asserted on appeal that the prosecution’s failure to have previously disclosed that information violated Rule 16 of the Superior Court Rules of Criminal Procedure and should have resulted in a mistrial.  The Supreme Court held that, because of the nature of the new information, the point in the trial when it was revealed, the absence of a commitment by the defendant to a particular trial strategy or theory, and the availability of a continuance, the trial justice did not err in denying the defendant’s motion to dismiss the case.
  
In addition, an expert witness was allowed to testify as to her opinion with respect to the incident in question; her testimony was permitted over the defendant’s objection.  On appeal, the defendant argued that the expert witness’s testimony improperly vouched for or bolstered the complaining witness’s testimony as well as the testimony of a certified nurse assistant.  The Supreme Court held that the expert witness’s testimony did not improperly vouch for or bolster the testimony of other witnesses.  Therefore, the Court affirmed the trial justice’s decision to permit the testimony of the expert witness.

Accordingly, the Supreme Court affirmed the judgment of conviction. 
07-023607-0236.pdfState v. John J. Eddy, No. 07-236 (June 26, 2013)
The defendant appealed from a judgment of conviction of three counts of first-degree child molestation sexual assault in violation of G.L. 1956 § 11-37-8.1, and two counts of first-degree sexual assault in violation of § 11-37-2.  On appeal, the defendant argued that: (1) the waiver of his right to counsel at trial was not voluntary; (2) even if his waiver was voluntary, he later revoked that waiver; (3) the trial justice was constitutionally required to appoint counsel—at least on a standby basis—to represent defendant after he chose to proceed pro se and then absented himself from the trial; (4) the trial justice should not have permitted the defendant to absent himself from the trial under Rule 43 of the Superior Court Rules of Criminal Procedure, because he was charged with “the Rhode Island equivalent of a capital crime”; (5) his conviction should be overturned because he was tried in Providence County on a criminal offense that allegedly occurred in Kent County, which the defendant alleged was an improper venue; and (6) the cumulative effect of all the purported errors required that his conviction be overturned.

The Supreme Court held that the defendant’s waiver of his right to counsel was voluntary and, furthermore, that the trial justice was within his discretion to deny the defendant’s eleventh-hour request for the appointment of counsel after he had already waived that right. The Court held that neither the United States Constitution, nor article 1, section 10 of the Rhode Island Constitution mandated that counsel be appointed when a pro se defendant voluntarily absents himself from his trial.  Additionally, the Court held that Rule 43 of the Superior Court Rules of Criminal Procedure did not preclude the trial justice from allowing the defendant to voluntarily absent himself from trial.  Finally, the Court held that any alleged error regarding venue was harmless beyond a reasonable doubt, and because all of defendant’s arguments lacked merit, a cumulative error analysis was unnecessary.

Accordingly, the Court affirmed the judgment of conviction against the defendant.
11-30, 31, 3211-30, 31, 32.pdfBennie Sisto, as the Trustee of Goat Island Realty Trust v. America Condominium Association, Inc., et al.; Bennie Sisto, as the Trustee of Goat Island Realty Trust v. Capella South Condominium Association, Inc., et al., Nos. 11-30, 31, 32 (June 26, 2013)
In these consolidated appeals, the plaintiff, Bennie Sisto, appealed from two judgments of the Superior Court: (1) the granting of summary judgment in favor of the defendant, America Condominium Association, Inc. (America); and (2) the granting of summary judgment in favor of the defendants, Capella South Condominium Association, Inc., Harbor Houses Condominium Association, Inc. (Harbor Houses), and Goat Island South Condominium Association, Inc. (GIS).  Additionally, Harbor Houses (a nominal defendant in the second action) appealed from the Superior Court’s grant of summary judgment in that action, arguing that judgment should have been granted in Sisto’s favor.
  
Sisto, who owned one of the nineteen sub-condominium units in Harbor Houses Condominium, contended that the hearing justice erred in concluding that he could not expand his unit without the unanimous consent of the 153 other unit owners in the entire Goat Island South Condominium community, pursuant to Rhode Island’s Condominium Act, G.L. 1956 chapter 36.1 of title 34.  Harbor Houses echoed Sisto’s argument in this regard.  Additionally, Sisto, who had filed an application with the Coastal Resources Management Council (the CRMC) for approval to expand his unit, argued that Rhode Island’s Anti-SLAPP statute, G.L. 1956 chapter 33 of title 9 did not insulate America from liability for its correspondence with the CRMC, in which it stated that Sisto did not own the land over which he sought to expand his unit.  Asserting that this correspondence was erroneous and deceptive, Sisto contended that America should not be entitled to the conditional immunity afforded by the anti-SLAPP statute.

After carefully reviewing the condominium declarations and the Condominium Act, the Supreme Court affirmed the judgment of the Superior Court in the second action, holding that Sisto’s proposed expansion required the unanimous consent of all unit owners in the Goat Island South Condominium community.  Further, the Court held that America’s correspondence with the CRMC fell within the embrace of the anti-SLAPP statute.  In the first action, the Court vacated the Superior Court’s issuance of a declaratory judgment because America had not filed a counterclaim for a declaratory judgment regarding the necessity of unanimous consent among all of the unit owners prior to Sisto’s expansion of his unit.  Accordingly, the Court affirmed in part and vacated in part the judgments of the Superior Court.
11-139, 10-43311-139, 10-433.pdfHope Billings McCulloch v. James Robert McCulloch, Nos. 11-139, 10-433 (June 25, 2013)
The plaintiff, Hope Billings McCulloch (Hope), appealed from a decision that granted her complaint and the counterclaim of the defendant, James Robert McCulloch (James), for an absolute divorce.  Hope argued that the trial justice erred: (1) in his determination of the percentage of Microfibres Partnership Limited (MPL) that was marital property; (2) by declining to place a value on Microfibres, Inc. (Microfibres) before he divided the marital estate; (3) by disregarding a consent order that set forth the date as of which the marital property was to be valued; (4) by assigning Hope 25 percent of Microfibres, thereby rendering her a minority shareholder in a closely held corporation; (5) by declining to award Hope alimony; (6) by awarding Hope only $1,000 per week in child support; (7) by declining to award Hope fees for her attorneys, experts, and the supervisor of James’s visits with their son Lucas McCulloch (Lucas); and (8) by declining to order the disclosure of certain documents and information concerning James’s will, trusts, and estate plans.  Additionally, in a protective and conditional cross-appeal, James argued that the trial justice erred when he held that Microfibres was a marital asset and not an advance on his inheritance.

The Supreme Court held that the trial justice did not err in determining that the contested portion of MPL was not marital property.  Additionally, the Court held that the trial justice did not err in declining to award fees for attorneys, experts, and supervised visits, nor did he err in declining to order the disclosure of information about James’s will, trusts, and other estate-planning documents.  However, the Court did find that the trial justice was required to value Microfibres and MPL as a whole, and he was required to value the portions of those companies that he assigned to each party, and the Court remanded the matter for a trial to determine those values.  Because the Court could not fully review the distribution of the marital estate without those values, it declined to pass on the alimony and child support issues.

Furthermore, the Court held that the manner in which the trial justice deviated from the terms of the consent order constituted error; however, that error did not require a rehearing.  Finally, the Court addressed James’s conditional cross-appeal and held that the trial justice did not err when he held that Microfibres was marital property.

Accordingly, the Court affirmed in part and vacated in part the Family Court’s decision pending entry of final judgment and remanded the matter to that tribunal. 
12-19712-197.pdfNorman Laurence v. Rhode Island Department of Corrections et al., No. 12-197 (June 20, 2013)
The pro se plaintiff, Norman Laurence, appealed from two orders entered in a civil action:  (1) an order denying his motion to proceed in forma pauperis; and (2) an order restricting the plaintiff from filing any pro se actions in Superior Court. 

In light of the plaintiff’s expressed willingness to pay the fees associated with his lawsuit, the Supreme Court deemed the first issue waived.  As to the second issue raised by the plaintiff, the Court concluded that the order limiting the plaintiff’s access to the courts was overly broad.  The Court held that the order failed to recite any findings of fact and that the plaintiff was not afforded notice or an adequate opportunity to be heard before the order was entered.  In addition, the Court was not persuaded that the record demonstrated the requisite degree of continuous and widespread abuse of the judicial system. 

Accordingly, because the order did not comport with the Court’s precedent and failed to include the protections afforded to the plaintiff, the Supreme Court concluded that the order was improperly entered and impermissibly infringed upon the plaintiff’s right of access to the courts.  For those reasons, the Court vacated the orders restricting the plaintiff from filing any pro se actions in Superior Court and remanded the record to the Superior Court.
12-512-5.pdfState v. Christopher S. Thornton, No. 12-5 (June 19, 2013)
The applicant, Christopher S. Thornton, appealed from a judgment of the Superior Court denying his application for postconviction relief.  On appeal, Thornton argued that the hearing justice erred in finding that he was not entitled to postconviction relief based on the prosecution’s failure to disclose certain victim-impact statements.  His argument was premised on both Rule 16 of the Superior Court Rules of Criminal Procedure and Brady v. Maryland, 373 U.S. 83 (1963).  Additionally, he claimed entitlement to a new trial based on newly discovered evidence, pursuant to G.L. 1956 § 10-9.1-1.  In response, the state contended that Thornton’s claims were not only barred by res judicata, but were also meritless.

After reviewing the record, the Supreme Court concluded that Thornton’s claims were indeed barred by res judicata.  The Court further noted that his claims lacked merit because the state had not deliberately withheld the victim-impact statements and because he was not prejudiced by the nondisclosure, especially in light of the fact that they were sent to the clerk of the court and filed with the rest of the documents in his case file.  The Court also held that Thornton was not entitled to a new trial based on newly discovered evidence.  Accordingly, the Supreme Court affirmed the judgment of the Superior Court.
12-7412-74.pdfState v. Lewis Kausel, No. 12-74 (June 19, 2013)
The defendant, Lewis Kausel, appealed from a judgment of conviction for simple domestic assault.  On appeal, the defendant alleged four errors: (1) that the trial justice erred by failing to properly instruct the jury as to the elements of the charged conduct, thereby relieving the state of the burden of proving “mens rea”; (2) that the trial justice improperly limited the defendant’s cross-examination of the complaining witness; (3) that the trial justice impermissibly allowed a police witness to vouch for the complaining witness’s credibility; and (4) that the trial justice erred in withholding from the defendant a copy of the complaining witness’s victim impact statement, which the state received after the trial was completed but before the sentencing proceeding.
  
The Supreme Court held that the trial justice’s jury instruction with respect to intent adequately covered the appropriate law, and it therefore affirmed the trial justice’s instruction in that regard.  In addition, the Court held that the trial justice did not err in limiting the defendant’s cross-examination of the complaining witness.  The Court also held that any testimony that might have constituted impermissible vouching did not prejudice the defendant.  Finally, the Court determined that the trial justice did not err in proceeding with the sentencing of the defendant after the admission of the statement of the complaining witness.

Accordingly, the Supreme Court affirmed the judgment of conviction.
12-17612-176.pdfState v. DeAnthony Allen, No. 12-176 (June 19, 2013)
The defendant appealed from a judgment of conviction for first degree child abuse.  On appeal, the defendant contended that the charge against him should have been dismissed because the child abuse statute (G.L. 1956 § 11-9-5.3) was unconstitutionally vague.  He also argued that the trial justice erred when he admitted a statement that the defendant wrote at a police station; the defendant contended that he did not knowingly and voluntarily waive his Miranda rights before providing that statement.  Finally, the defendant argued that the trial justice erred in denying his motion for a judgment of acquittal and his motion for a new trial.

The Supreme Court held that the first degree child abuse provision in the child abuse statute provided the defendant with sufficient notice that his conduct was unlawful; therefore, the Court held that the statute was constitutional as applied to the defendant.  The Court next held that the defendant knowingly, intelligently, and voluntarily waived his Miranda rights before providing his statement to the police; he was given a form by the police which included those rights, and he read each right out loud in front of the police, market his initials next to each right, and signed the form to indicate that he understood those rights.  Finally, the Court held that the trial justice did not err in denying the defendant’s motions for a judgment of acquittal and for a new trial.

Accordingly, the Supreme Court affirmed the Superior Court’s judgment of conviction.
12-5412-54.pdfThe Wampanoag Group, LLC et al. v.James A. Iacoi et al., No. 12-54 (June 19, 2013)
The defendants appealed from the Superior Court’s denial of their motion for leave to file a third-party complaint.  The defendants are attorneys who were retained by the plaintiffs in connection with the purchase of property.  The initial complaint filed by the plaintiffs stated that they paid for the property under the belief that the existing leases on the property were “triple net leases.”  The plaintiffs further alleged that the attorneys were responsible for advising them about the nature of the leases and that the attorneys’ negligent review of those leases led to the plaintiffs’ overpayment for the property.  The defendants filed a motion for leave to file a third-party complaint under Rule 14 of the Superior Court Rules of Civil Procedure.  That proposed complaint alleged that the real estate agents were responsible for reviewing the leases and that the defendants were therefore entitled to contribution or indemnification.

The Superior Court denied the defendants’ motion for leave to file a third-party complaint, stating that the defendants failed to allege a cause of action against the real estate agents.  On appeal, the Supreme Court vacated the Superior Court’s denial, noting that the proposed complaint satisfied the requirements of Rule 14.  The Court recognized that the proposed third-party complaint contained allegations which, if proved, would entitle the defendants to seek contribution or indemnification from the real estate agents.
11-29, 10-37111-29, 10-371.pdfState v. Adrian Hazard, Nos. 11-29, 10-371 (June 19, 2013)
The trial justice found the defendant, Adrian Hazard, to be a probation violator for eluding police officers, carrying a revolver without a license and possession of a pistol after being convicted of a crime of violence, and he ordered that the defendant serve ten years of his previously suspended sentence.  The defendant appealed, contending that his inoperable replica of a Remington 1858 .44-caliber black powder revolver was not a “firearm” or “pistol” under G.L. 1956 chapter 47 of title 11 (the Firearms Act) and that his ten-year sentence was excessive.

In a separate criminal case, the state charged the defendant with recklessly operating a motor vehicle, carrying a pistol or revolver without a license, and possession of a firearm after having been convicted of a crime of violence.  Concerned with the trial justice’s interpretation of the Firearms Act during the defendant’s probation-revocation hearing, the state filed a motion in limine requesting that the trial justice interpret the Firearms Act such that a pistol, or a frame or receiver, need not be capable of expelling a projectile, or be readily converted to do so, in order to fall within the Firearms Act’s reach.  The trial justice denied the motion, and the state appealed.  The two appeals were consolidated.
12-14712-147.pdfProvidence School Board v. Providence Teachers Union, Local 958, AFT, AFL-CIO, No. 12-147 (June 19, 2013)
After the Providence School Board (board) changed its formula for calculation of health insurance premium rates for active and retired teachers, which resulted in a higher increase in premium costs for retired teachers, the Providence Teachers Union, Local 958, AFT, AFL-CIO (union) submitted a grievance protesting what it termed the increased cost for health insurance for retired teachers.  The arbitrator ruled in the union’s favor, and the board moved to vacate the award in the Superior Court.  The trial justice vacated the award, concluding that the union did not have standing to pursue a grievance on behalf of retired teachers and that the issue of the calculation of group premium rates was not arbitrable.  The union appealed.

The Supreme Court agreed with the trial justice that the union was attempting to grieve a claim on behalf of the retired teachers—an action that the parties’ collective-bargaining agreement did not authorize and the Court’s precedent foreclosed.  The Court determined that, because the union had no standing to pursue the grievance, the grievance was not arbitrable.  The Court held that the arbitrator had exceeded his powers in adjudicating this dispute and that the trial justice properly granted the board’s motion to vacate the award.  Accordingly, the Court affirmed the order of the Superior Court.
09-38109-381.pdfState v. Jeffrey Martin, No. 09-381 (June 18, 2013)
The defendant, Jeffrey Martin, appealed from a judgment of conviction for first-degree sexual assault following a jury trial in the Superior Court.  On appeal, the defendant argued that the Superior Court erred in denying his request to instruct the jury on the defense of consent, in admitting certain testimony under the excited-utterance exception to the hearsay rule, and in denying his motion to dismiss the indictment because of irregularities at the grand jury proceedings.

 The Supreme Court first held that the trial justice properly instructed the jury as to first-degree sexual assault.  In particular, the Court concluded that a specific instruction on the defense of consent or mistake of fact was unnecessary in this case because the charge pertaining to the “force or coercion” element of the offense adequately covered the concept of consent.  Additionally, the Court determined that no evidence was presented at trial that would have supported the defendant’s proposed instruction.
12-15112-151.pdfInland America Retail Management LLC v. Cinemaworld of Florida, Inc., No. 12-151 (June 18, 2013)
The plaintiff, Inland American Retail Management LLC, appealed from a judgment of the Superior Court that concluded, as a matter of law, that the language of a lease between the parties unambiguously provided that the formula to allocate certain real estate tax payments should be based on the square footage of the leased premises of the defendant, Cinemaworld of Florida, Inc.  The trial justice also declined to grant Inland’s request for interest, late charges, expenses, and attorneys’ fees.  On appeal, Inland argued that the trial justice erred by (1) adopting a formula that was not supported by the lease and (2) declining to award interest, late charges, expenses, and attorneys’ fees.

The Supreme Court reversed the judgment of the Superior Court, holding that the language of the lease was ambiguous and presented a genuine issue of material fact as to the parties’ intent.  Based on this holding, the Supreme Court declined to review whether the trial justice erred in declining to award interest, late charges, expenses, and attorneys’ fees to Inland.  Accordingly, the Court vacated the judgment of the Superior Court, holding that these issues should be resolved by a trier of fact and were not suitable for summary disposition.
09-374, 10-397, 10-42209-374, 10-397, 10-422.pdfRhode Island Construction Services, Inc. v. Harris Mill, LLC., Rhode Island Construction Services, Inc. v. Harris Mill, LLC, Thomas Lonardo & Associates, Inc. v. Rhode Island Construction Services, Inc., Nos. 09-374, 10-397, 10-422 (June 18, 2013)
Thomas Lonardo & Associates, Inc. (TLA) filed a petition to enforce a mechanics’ lien related to its architectural work on a renovation project.  Petra Finance, LLC (Petra) held a first priority mortgage on the property.  Petra missed the deadline to file a statement of claim in the mechanics’ lien proceedings; accordingly, TLA’s mechanics’ lien gained priority over Petra’s mortgage.  The Superior Court, however, allowed Petra to file a statement of claim out of time, thus restoring the mortgage’s priority.

In this consolidated appeal, the Supreme Court reversed the Superior Court’s decision to allow Petra to file an answer and statement of claim out of time in the mechanics’ lien action.  The Supreme Court held that Petra’s untimely filing was not the result of “excusable neglect.”
10-12810-128.pdfState v. Gerald D. Price, No. 10-128 (June 18, 2013)
The defendant, Gerald D. Price, was convicted by a jury of one count of possession of marijuana and two counts of possession of cocaine with the intent to deliver while armed with or having available a firearm.  On appeal, Price contended that the trial justice committed three errors, each of which, he maintained, entitled him to a new trial.  First, the defendant argued that the trial justice incorrectly interpreted the phrase “having available any firearm” within G.L. 1956 § 11-47-3.  Second, he averred that the trial justice erroneously permitted the state to impeach his credibility with an allegation of previous criminal conduct and with information that was false and prejudicial.  Third, Price argued that the trial justice violated his constitutional right to make an informed decision about whether to plead or proceed to trial and that, therefore, he should only be retried on a single count rather than on three. 

The Court first observed that the defendant had moved for judgment of acquittal at the close of the state’s case but did not renew this motion at the close of his own presentation of evidence and, therefore, the Court concluded that his argument concerning the denial of his Super.R.Crim.P. 29 motion had been waived.  The Court next held that the trial justice erred by allowing the prosecutor for the state to ask questions of the defendant that were not factually correct regarding his past criminal history, and it vacated the judgment of conviction.  The Court additionally concluded that the defendant’s constitutional rights were not violated with regard to the defendant’s decision to proceed to trial and that, therefore, the defendant could be retried on all counts upon remand.
12-112-1.pdfIn re Evelyn C., No. 2012-1 (June 18, 2013)
The respondent-father appealed from a Family Court termination of parental rights with respect to his daughter.  Specifically, father argued that the trial justice erred in concluding that he has a substance-abuse problem, rendering him unable to care for his daughter.  Further, father asserts that there was insufficient evidence to support the trial justice’s determination that it was unlikely that she could be returned to him within a reasonable amount of time. 

The Supreme Court affirmed the decision below.  First, the Court held that there was a copious amount of evidence in the record to support the trial justice’s finding of father’s chronic substance abuse by clear and convincing evidence.  The Court also found no error in the trial justice’s determination that the department granted father a plethora of opportunities and services to enable him to reunite with his daughter, but that father either did not take advantage of these services or failed to use them to improve his situation adequately and that, therefore, it was unlikely that father’s daughter could be returned to him within a reasonable amount of time.
10-23710-237.pdfState v. Roger Morin, No. 2010-237 (June 18, 2013)
The defendant, Roger Morin, appealed from a Superior Court judgment of conviction for first-degree child molestation.  On appeal, he argued that the trial justice erred in (1) refusing to suppress a statement that he made to police following his arrest; (2) admitting that statement without first redacting certain portions; and (3) denying his motion for a new trial.

The Supreme Court rejected Morin’s argument that his statement should have been suppressed as the fruit of an unlawful arrest.  The Court held that, although Morin was arrested in his home without a warrant, the arrest was valid because it was made under exigent circumstances.  The Court also held that the trial justice did not abuse his discretion in denying Morin’s request to partially redact his statement before it was admitted into evidence.  Finally, the Court held that the trial justice had not clearly erred and had not misconceived or overlooked material evidence in denying Morin’s motion for a new trial.  Accordingly, the Court affirmed the judgment in all respects.
10-23010-230.pdfGreensleeves, Inc. v. Philip B. Smiley, Sr. et al., No. 10-230 (June 18, 2013)
The defendant, Eugene Friedrich, appealed from a Superior Court judgment awarding damages, prejudgment interest and costs to the plaintiff, Greensleeves, Inc., on its tortious interference of contract claim.  On appeal, Friedrich contended that the trial justice erred in (1) finding that he had tortiously interfered with Greensleeves’ contract; and (2) denying his motion pursuant to Rule 59(e) of the Superior Court Rules of Civil Procedure to amend the judgment to reduce the award of prejudgment interest.
 
Although the Supreme Court acknowledged that the trial justice erred by referring to and considering matters outside the record in his bench decision, it concluded that those errors were harmless.  Because there was cumulative record evidence upon which the trial justice relied in reaching his ultimate conclusion that Friedrich tortiously interfered with Greensleeves’ contract, the Court held that the trial justice had not committed any reversible error.  Additionally, the Court declined to adopt a fault-based analysis with respect to the award of prejudgment interest.  Friedrich asserted that, because Greensleeves had pursued two unsuccessful appeals during the protracted travel of the case, extending the matter for twenty-nine months, the prejudgment interest should be accordingly reduced.  Mindful of its limited standard of review, the Court reasoned that the trial justice had not committed a manifest error of law in denying Friedrich’s motion to amend the judgment to reduce the award of prejudgment interest.  Accordingly, the Court affirmed the judgment of the Superior Court in all respects.
11-35511-355.pdfMichael Bell v. State of Rhode Island, No. 11-355 (June 18, 2013)
In July 2009, Michael Bell was convicted of felony assault following a jury-waived trial, and he was sentenced to fifteen years, with four to serve and eleven suspended, with probation.  In February 2010, Bell filed an application for postconviction relief.  The Superior Court rejected Bell’s arguments and denied the requested relief.
 
Bell appealed from the denial of his application for postconviction relief, arguing that his trial counsel had provided ineffective assistance of counsel by giving him “incorrect legal advice” that “ultimately deprived [him] of the opportunity to consider and accept a favorable plea offer.”  The Supreme Court affirmed the judgment of the Superior Court, holding that, because the prosecution made no offer and, further, because even had an offer been made, Bell was unlikely to have accepted it given his stated desire to join the military, Bell failed to prove that the counsel he received was deficient or that he was prejudiced in any way by his counsel’s performance.
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