Supreme Court

Published Opinions 2011 - 2012

  
  
State v. John Kluth, No. 09-31 (July 13, 2012)09-31
The defendant appealed from judgments of conviction based on a Superior Court jury’s finding of guilt on thirty counts of obtaining money by false pretenses.  On appeal, the defendant contended (1) that the then presiding justice of the Superior Court exceeded his authority in granting the prosecutor’s request to change venue; (2) that the charges filed against him were improperly joined as a matter of law, in view of the provisions of Rule 8(a) of the Superior Court Rules of Criminal Procedure; and (3) that, even if the charges had been properly joined, the trial justice’s failure to sever the cases infringed upon his right to a fair trial.

The Supreme Court held that, in light of the considerations of judicial economy and the significant resources demanded by the defendant’s trial, the then presiding justice’s ruling with respect to the motion to transfer constituted a sustainable exercise of his discretion. 

With respect to the defendant’s contention as to joinder, the Court stated that the offenses charged were of the same or similar character.  The Court therefore held that joinder was proper as a matter of law.  The Supreme Court further held that, due to the fact that the evidence of the other alleged crimes might well be admitted at separate trials and the fact that the allegations were nearly identical, the trial justice did not abuse her discretion in joining the criminal informations for trial. 

The Supreme Court held that the defendant had waived his contentions with respect to the issue of severance.

Accordingly, the Supreme Court affirmed the judgments of the Superior Court.
Mutual Development Corporation v. Ward Fisher & Company, LLP et al., No. 09-168 (July 13, 2012)09-168
The plaintiff, Mutual Development Corporation, appealed from the Superior Court’s grant of summary judgment in favor of the defendants, Ward Fisher & Company, LLP and WF Realty & Investment, LLC.  On appeal, the plaintiff contended that the hearing justice improperly interpreted and applied subsection 6 of the Statute of Frauds, G.L. 1956 § 9-1-4, in deciding that said section could properly be invoked with respect to an alleged oral finder’s fee agreement between the plaintiff and the defendants, thereby barring recovery by the plaintiff.

The Supreme Court first addressed the plaintiff’s contention that the Statute of Frauds did not apply to a finder’s fee because of what the plaintiff contended was a “well-recognized distinction” between a broker and a finder.  After reviewing the cases relied upon by the plaintiff, the Court concluded that it is the nature of the transaction which is determinative as to whether subsection 6 of the Statute of Frauds applies, and not whether the person seeking the fee acted as a finder or a broker.

Next, the Court turned to the use of the word “commission” in the Statute of Frauds to determine whether that term encompassed both flat-sum commissions and percentage-based commissions.  The Court reviewed the definition of “commission” in several recognized dictionaries and determined that that term contemplated both types of payments.  Ultimately, the Court held that, in furtherance of the policy of the Statute of Frauds, any person who seeks to recover a flat-sum commission or a percentage-based commission upon the sale of any interest in real estate is required to comply with subsection 6 of the Statute of Frauds.

Accordingly, the Supreme Court affirmed the judgment of the Superior Court.
State v. James S. Richardson, No. 10-216 (July 12, 2012)10-216
On November 14, 2008, a jury convicted the defendant, James S. Richardson, of one count of murder and one count of burglary.  The defendant was sentenced to life imprisonment without the possibility of parole.  The defendant appealed his conviction and asserted that the trial justice erred by: (1) allowing one of the state’s expert witnesses to bolster the credibility of another expert witness; (2) denying the defendant’s motion for judgment of acquittal; and (3) denying the defendant’s motion for a new trial.  The Supreme Court affirmed the judgment of the Superior Court in all respects.

The Court rejected the defendant’s assertion that the second expert witness’ testimony constituted impermissible bolstering.  The Court held that the substance of the second expert witness’ testimony was an opinion that was based on the objective scientific observations, facts, and figures contained in the first expert’s reports.  The second expert’s reliance on the objective measurements contained in the worksheets and reports distinguished his testimony from the kind of “subjective analysis” that the Court previously had held constituted bolstering. 

With respect to the denial of the motion for a new trial, the Court held that the trial justice performed an exhaustive review of the evidence presented at trial, and he conducted a thorough and proper analysis with respect to the defendant’s motion for a new trial in this matter.  Despite the defendant’s contention that the trial justice should not have found the state’s primary witnesses to be credible, the Court noted that it was clear that the trial justice considered the testimony of both witnesses and came to a different conclusion.  Therefore, the Court affirmed the trial justice’s ruling denying the defendant’s motion for a new trial.  Because the Court affirmed the Superior Court’s judgment with respect to the motion for a new trial, the Court did not reach a review of the motion for judgment of acquittal.

Accordingly, the Supreme Court affirmed the judgment of conviction.
State v. Julie Robat, No. 10-61 (July 12, 2012)10-61
The defendant appealed from a judgment of conviction on one count of second-degree murder; the victim was the defendant’s newborn daughter.  On appeal, the defendant argued that the trial justice erred in failing to grant her motion for a judgment of acquittal and her later motion for a new trial because, according to the defendant, the state failed to provide legally sufficient evidence for a jury to find that she acted with malice in connection with the death of her baby.  The defendant further contended that the trial justice erred in failing to grant her motion for a new trial on other grounds—viz., what the defendant alleged were improper comments made by the prosecutor during her closing argument.

After thoroughly reviewing the record and the trial justice’s articulated reasoning in ruling on the motion for a new trial, the Supreme Court held that the trial justice did not overlook or misconceive material evidence in denying the defendant’s motion for a new trial.  Specifically, the Court concluded that there was sufficient evidence to support a finding that the defendant acted with malice in connection with the death of her baby.

In view of the fact that it had concluded that the trial justice did not err in denying that motion, the Court found it unnecessary to pass upon the motion for judgment of acquittal—since the latter motion is more demanding from a defendant’s perspective than is a motion for a new trial.

Lastly, the Court reviewed the defendant’s contention concerning the allegedly improper comments made by the prosecutor during her closing arguments.  The Court first stated that, in view of the facts of this case, the challenged statements did not constitute improper comments.  The Court further noted that, in any event, although defense counsel had made objections to the comments at issue, counsel neither moved to pass the case nor requested a cautionary instruction.  The Court reiterated its long-standing rule that such procedural steps must be taken in order to preserve for appeal an issue involving alleged impropriety in a closing argument.

Accordingly, the Supreme Court affirmed the judgment of conviction.
State v. Juan Diaz, No. 10-236 (July 12, 2012)10-236
The defendant appealed from a judgment of conviction on one count of second-degree murder and one count of using a firearm while committing a crime of violence.  On appeal, the defendant contended that the trial justice erred in failing to grant his motion for judgment of acquittal on the second-degree murder charge; the basis for that contention was the defendant’s subordinate assertion that the state failed to provide legally sufficient evidence for a jury to find that he acted with malice in connection with the death of the victim.  The defendant additionally contended on appeal that the trial justice erred in omitting the phrase “criminal negligence” from his instruction to the jury concerning involuntary manslaughter and instead used “confusing language,” which made it difficult for the jury to distinguish the crime of involuntary manslaughter from the crime of murder in the second degree.

After thoroughly reviewing the record and viewing the evidence in the light most favorable to the prosecution, the Supreme Court concluded that there was sufficient evidence produced at trial to support a verdict of second-degree murder.  The Court therefore held that the trial justice did not err in denying the defendant’s motion for a judgment of acquittal as to the second-degree murder charge. 

Next, the Court reviewed the defendant’s contention that the trial justice erred in failing to include the term “criminal negligence” in the instruction concerning involuntary manslaughter.  The Court noted that the instructions that were given, when viewed as a whole, could have misled a jury composed of ordinary intelligent lay people to the prejudice of the defendant.  Therefore, the Court held that, in view of the facts of this case, the trial justice was required to instruct the jury as to the concept of criminal negligence.

Accordingly, the Supreme Court vacated the judgment of conviction and remanded the case to the Superior Court.
Eddy Guerrero v. State of Rhode Island, No. 10-429 (July 12, 2012)10-429
The applicant appealed from the denial of his application for postconviction relief.  His sole contention on appeal was that the hearing justice erred in holding that his trial counsel provided effective assistance of counsel prior to and during the applicant’s plea.  Specifically, the applicant contended: (1) that his counsel failed to obtain an interpreter for him at the time of the hearing on his motion to suppress certain evidence and at the time of his eventual plea; (2) that, prior to his execution of the plea form, his counsel failed to properly explain to him the essential elements of the offense to which he ultimately pled nolo contendere; (3) that his trial counsel failed to meet with him in a setting conducive to meaningful attorney-client communications; (4) that, by not conducting a sufficient investigation, his counsel failed to properly prepare for the suppression hearing; and (5) that the hearing justice erred in failing to address the prejudice component of the analysis relative to ineffective assistance of counsel claims that is described in Strickland v. Washington, 466 U.S. 668 (1984).

The Supreme Court held that, based on the testimony of the postconviction relief witnesses and the credibility determinations made by the hearing justice, the hearing justice did not err in concluding that trial counsel, in choosing not to utilize the services of an interpreter, did not provide ineffective assistance of counsel.
With respect to the immigration consequences of the applicant’s plea, the Supreme Court further held that the hearing justice did not err in concluding that trial counsel was not ineffective given his finding that trial counsel adequately warned the applicant of the immigration consequences of his plea.  The Court additionally stated that the hearing justice did not err in finding that the applicant’s plea was intelligent.

Concerning the applicant’s contention as to trial counsel’s alleged failure to prepare, the Supreme Court held that, in view of the trial counsel’s thorough questioning and extensive argument at the suppression hearing, the hearing justice did not err in ruling that trial counsel was not ineffective.  The Supreme Court further held that, in light of the record of trial counsel’s substantive and confidential discussions with the applicant, the hearing justice did not err in concluding that trial counsel’s representation of the applicant was not ineffective with respect to the applicant’s “meaningful attorney-client communications” contention.

In view of the determination that trial counsel’s performance was within the range of competence demanded of attorneys in criminal cases, the Court stated that it did not need to address the second component of the Strickland analysis.

Accordingly, the Supreme Court affirmed the judgment of the Superior Court.
Sofya M. Zharkova v. Paul D. Gaudreau, No. 11-295 (July 11, 2012)11-295
The plaintiff, Sofya M. Zharkova, appealed from a judgment of the Family Court dismissing her complaint for divorce from the defendant, Paul D. Gaudreau.  In her complaint, the plaintiff alleged that a common-law marriage had existed between the defendant and her.  At trial, after hearing testimony from the parties and from several other witnesses and after considering the exhibits in the record, the trial justice found that the plaintiff had failed to prove the existence of a common-law marriage by clear and convincing evidence; accordingly, he dismissed the plaintiff’s complaint.

On appeal, the plaintiff contended that the trial justice’s decision failed to do “substantial justice” between the parties and that the trial justice overlooked and/or misconceived relevant and material evidence or was otherwise “clearly wrong.”
 
The Supreme Court held that the trial justice did not clearly err in finding that there was no clear and convincing evidence of the intent of the parties to enter into a husband-wife relationship.  The Court further stated that, after considering all of the evidence as well as the trial justice’s credibility determinations, the trial justice did not err in finding that the plaintiff failed to prove by clear and convincing evidence that there was a general reputation in the community that the plaintiff and the defendant were husband and wife.  As a result, the Court held that the trial justice did not misconceive or overlook relevant evidence, nor was he clearly wrong when he found that the plaintiff failed to prove the existence of a common-law marriage between herself and the defendant.

Accordingly, the Supreme Court affirmed the judgment of the Family Court.
Reilly Electrical Contractors, Inc. d/b/a Relco, Inc. et al. v. State of Rhode Island Department of Labor and Training, through its director Adelita S. Orefice, No. 10-266 (July 6, 2012)10-266
On October 27, 2005, Reilly Electrical Contractors, Inc. (Relco) and its employees (the petitioners) were cited by the Rhode Island Department of Labor and Training (DLT) for installing hollow PVC material without an electrician’s license in violation of G.L. 1956 § 5-6-2.  After two hearings before the Board of Examiners of Electricians (the board), the DLT upheld the citations. The petitioners appealed to the Superior Court, which affirmed the board’s findings, ruling that the PVC material was conduit pursuant to § 5-6-2, and therefore, an electrician’s license was required to install it. 

Before the Supreme Court, the petitioners argued that the work performed on the date of the violations was not electrical in nature, but rather “excavation and other preparatory work.”  The petitioners also argued that because the PVC material could not, by itself, conduct electricity, it was not conduit, and therefore, a licensed electrician was not needed for its installation. 

The Supreme Court determined that the PVC material being installed was to be used in the future to house and protect electrical conductors.  It distinguished the present matter from Unistrut Corp. v. State Department of Labor and Training, 922 A.2d 93 (R.I. 2007) by holding that the term conduit as used in § 5-6-2 possessed a specific definition, and that the PVC material handled by the petitioners was indeed conduit for the purpose of carrying electricity.  In so holding, the Supreme Court relied upon the National Electrical Code’s definition of PVC conduit as well as how the Code governed its use and installation.  The Court also relied on the testimony elicited before the board.  Finally, the Court concluded that a plain reading of the statute supported the findings of the board and the Superior Court.  

Accordingly, the Supreme Court affirmed the judgment of the Superior Court. 
State v. James Cook, No. 10-363 (July 6, 2012)10-363
After a jury returned verdicts of guilty on twenty-two counts ranging from first-degree sexual assault to identity fraud, the defendant, James Cook, appealed.  The defendant contended (1) that the trial justice erred by denying his motions to pass the case after a witness testified that the defendant had been on probation, and (2) that the trial justice committed reversible error when he admitted instances of the defendant’s prior sexual misconduct into evidence because the evidence should have been excluded under Rule 403 of the Rhode Island Rules of Evidence and also because under Rule 404(b) it was not reasonably necessary for the state to prove its case.

The Supreme Court held that the trial justice did not abuse his discretion by declining to pass the case after testimony was given that the defendant had been on probation.  After considering all the circumstances surrounding the errant statement, including the trial justice’s cautionary instructions to the jury as well as his individual voir dire of each juror regarding the offending testimony, the Court concluded that the statement was not sufficiently prejudicial to prevent the jury from calmly and dispassionately weighing the evidence. 

The Supreme Court also held that the trial justice did not commit reversible error by admitting evidence of prior sexual misconduct committed by the defendant.  The Court first determined that the defendant’s right to appeal based on Rule 403 grounds had been waived because the defendant never sufficiently articulated to the trial justice any objection based on that rule.  However, in assuming that the objection was not waived, the Supreme Court held that, in comparison with the other, probably more inflammatory, evidence presented against the defendant at trial, the evidence of the defendant’s prior sexual misconduct, while prejudicial, was not unfairly prejudicial.  Finally, the Court held that the prior sexual-misconduct evidence was reasonably necessary under Rule 404(b) for the state to rebut the defense of consent, argued by the defendant at trial.
  
For these reasons, the Supreme Court affirmed the defendant’s convictions.
Roderick A. McGarry v. Marilyn Pielech et al., No. 10-386 (July 6, 2012)10-386
This case came before the Supreme Court on March 6, 2012, on appeal by the plaintiff, Roderick A. McGarry (the plaintiff or McGarry), from a final judgment in favor of the defendant, the Cumberland School Department (the defendant or school department), granting the defendant’s posttrial motion for judgment as a matter of law pursuant to Rule 50 of the Superior Court Rules of Civil Procedure, concluding that the defendant had not discriminated against hiring the plaintiff on the basis of his age.  In February 2010, a jury trial commenced on the plaintiff’s claims of age discrimination and retaliation; the jury returned a verdict in the plaintiff’s favor.  However, the trial justice granted the defendant’s motion for judgment as a matter of law on both claims, and alternatively, granted the defendant’s motion for a new trial.  The plaintiff appealed and contended that the trial justice erred by ruling that an adverse inference resulting from the spoliation doctrine—without additional extrinsic evidence—cannot satisfy the plaintiff’s burden of proof, and that the trial justice’s decision in the alternative to grant defendant’s new-trial motion was in error.
 
The Supreme Court reversed in part and affirmed in part the judgment of the Superior Court.  The Court held that the trial justice erred when he determined that in addition to the adverse inference against the defendant resulting from missing interview sheets, the plaintiff had to offer additional corroborating evidence to sustain a jury verdict against the despoiler.  Accordingly, the Court reversed the trial justice’s grant of judgment as a matter of law.  The Court also held that the trial justice’s determination that the jury gave an inordinate amount of weight and credence to the missing interview sheets was not clearly wrong, and affirmed the granting of the defendant’s new-trial motion.
Fred M. Hazard et al. v. East Hills, Inc., No. 11-316 (July 6, 2012)11-316
The plaintiff, Laurel Y. Hazard (the plaintiff), appeals from the grant of a motion for summary judgment in favor of the defendant, East Hills, Inc. (the defendant), declaring that the plaintiff was barred by the doctrine of laches from prosecuting a claim of ownership of an undeveloped eight-acre tract of land in South Kingstown, Rhode Island, and declaring that the defendant had established ownership of the lot by adverse possession and in accordance with the Rhode Island Marketable Record Title Act, G.L. 1956 chapter 13.1 of title 34.   On appeal, the plaintiff, who was pro se, asserted that the claim should not be barred by the doctrine of laches, that the defendant failed to satisfy the requisite elements of adverse possession of the subject property, and that a 1909 boundary agreement entered into by the defendant’s predecessor in interest was defective and was improperly relied upon by the special master as a title transaction for purposes of establishing marketable record title.  The Supreme Court affirmed the judgment of the Superior Court based on the equitable doctrine of laches.

The Court initially concluded that the trial justice did not err in confirming the report of the special master because the special master conducted his charge thoroughly and produced an eloquent and detailed report; thus, the Supreme Court affirmed the trial court’s confirmation of the special master’s report.  The Supreme Court then held that the plaintiff’s claim was barred by the equitable doctrine of laches because she had waited well over 100 years to bring her suit.  Moreover, the Supreme Court noted that the plaintiff failed to provide a fair explanation for such a protracted delay and the delay significantly prejudiced the defendant because, over the 100-year span of time, evidence was lost, witnesses died, and title to the parcels changed hands many times.  Based on the Court’s conclusion that the plaintiff’s claim was barred by laches, it declined to reach the issues of adverse possession or the applicability of the Marketable Record Title Act.
Beverly Haviland v. Ruth J. Simmons in her capacity as President of Brown University et al., No. 10-231, (July 6, 2012)10-231
The defendant, Brown University (the defendant, Brown, or the University), appealed to the Supreme Court from a Superior Court judgment in favor of the plaintiff, Beverly Haviland (the plaintiff or Haviland), in her action for declaratory relief in this employment case.  The defendant contended that there existed no justiciable issue in this case because the plaintiff could not demonstrate an injury in fact, as she did not face any actual or imminent loss of employment.  The defendant also asserted that the trial justice erred in finding that there was an implied-in-fact contract between the plaintiff and Brown because there was insufficient evidence presented to establish an enforceable promise of de facto tenure.  The defendant further contended that no tenure-like standard of review applies to the plaintiff because only the Brown Corporation was vested with the authority to grant tenure and none of the University administrators who communicated with Haviland were vested with actual or apparent authority to provide the plaintiff with de facto tenure.  The Supreme Court affirmed the judgment of the Superior Court.

The Supreme Court held that the terms of the contract were contained in the several communications and letters exchanged between the parties and accepted by Haviland on November 19, 2000.  The contractual elements were satisfied, giving rise to an express employment contract between Haviland and Brown.  The Court held that the terms assented to were those contained in the November 8, 2000 letter, supplemented by the terms of the
October 18, 2000 letter (which were still operative according to the November 17, 2000 letter), but that the terms of the contract relating to contract renewal and reappointment were ambiguous because those terms were subject to more than one reasonable interpretation.  The Court construed the language concerning the reappointment standard against Brown, and it declared that Haviland’s reappointment is governed by the express terms set forth in the letter of October 18, 2000.

Finally, the Court held that the University was estopped from denying that its administrators had the authority to provide the plaintiff with employment security because the University failed to produce any probative evidence establishing that those officers lacked such authority.
State v. Kenneth Viveiros, No. 09-249 (July 6, 2012)09-246
The defendant, Kenneth Viveiros (the defendant or Viveiros), came before the Supreme Court on appeal from a conviction on four counts of simple assault against three inmates at the Adult Correctional Institutions (ACI), occurring while the defendant was employed as a lieutenant at the ACI.  On appeal, the defendant asserted that the trial justice erred by: (1) denying the defendant’s motion to sever his trial from that of his codefendant, Captain Gualtar Botas (Botas); (2) granting the state’s motion in limine, precluding the testimony of inmate Sebastian Atryzek; (3) giving improper jury instructions; and (4) denying the defendant’s motion for a new trial based on the insufficiency of the evidence.  The Supreme Court affirmed Superior Court’s judgment of conviction in all respects.

The Supreme Court held that the trial justice did not abuse his discretion in denying the defendant’s motion to sever because the trial justice carefully assessed the potential for prejudice in joining the defendant’s case with the other defendants, severed out the party and claims he believed would create prejudice, and, for purposes of judicial economy, kept together the cases and claims that could be tried without prejudicing the defendant. 

With respect to the defendant’s second contention, the Supreme Court held that the trial justice did not err by granting the state’s motion in limine to preclude a defense witness from testifying.  The Court found that the proposed testimony constituted collateral extrinsic evidence intended to contradict that of another witness and was therefore inadmissible under Rule 608(b) of the Rhode Island Rules of Evidence.
 
The Supreme Court also held that the defendant could not raise an objection to the jury instructions on appeal because the defendant failed to make the objection at the time of trial.  Based on the Court’s “raise-or-waive” rule, the defendant’s argument that the jury instructions were improper was waived.  The Court noted that although the defendant was precluded from arguing improper instructions because he had failed to raise the matter below, the Court was satisfied that the instructions were in fact proper and adequately covered the law.

Finally, the Supreme Court declined to disturb the trial justice’s denial of the defendant’s motion for a new trial because there was no evidence that the trial justice overlooked or misconceived any material evidence or that he was clearly wrong.  The trial justice engaged in a comprehensive and proper analysis of the evidence presented; he reviewed the testimony from both sides and independently assessed the credibility of the witnesses.  The Court held that the trial justice properly denied the motion for a new trial after concluding that the case was one where reasonable minds could differ.
State v. Michael Ciresi, Nos. 10-253, 10-254 (July 5, 2012)10-253, 10-254
Before the Court was the appeal of the defendant, Michael Ciresi (Ciresi), a former North Providence police officer and narcotics detective.  After the Pawtucket Police Department discovered Ciresi’s potential involvement in a 2004 Pawtucket burglary, further probing exposed a string of disreputable and illegal endeavors undertaken by Ciresi with the help of a number of criminal “informants,” who later cooperated in a wide-scale investigation by the state police into Ciresi’s activities.  Ultimately, Ciresi was charged with ten counts by two separate indictments, ranging from burglary to the receipt of stolen goods.

Prior to trial, the state moved for joinder of the two indictments against Ciresi, which motion the trial justice granted based on what he perceived as a common plan or scheme by Ciresi to cultivate and corrupt criminal informants for his personal gain in his role as a police officer.  The trial justice subsequently considered, and denied, Ciresi’s motion to sever the indictments.  Before trial, the state also moved to admit numerous instances of Ciresi’s prior uncharged misconduct under Rule 404(b) of the Rhode Island Rules of Evidence.  Viewing the evidence as indicative of Ciresi’s common plan of using criminals for his own benefit, the trial justice preliminarily granted the state’s motion relative to the evidence at issue in this appeal.  After a lengthy jury trial, during which the state presented over two dozen witnesses, including several criminals, to support its case, the jury returned a verdict of guilty on all counts, with the exception of one. 

On appeal, Ciresi contended that the trial justice abused his discretion by admitting thirty-seven pieces of evidence of Ciresi’s uncharged misconduct through the testimony of criminals with whom Ciresi was alleged to have affiliated because, in his view, the testimony constituted improper propensity evidence that should have been excluded under Rule 404(b).  Ciresi also challenged the trial justice’s joinder of the indictments for a consolidated trial, and subsequent refusal to sever the indictments—specifically, Ciresi averred that as a matter of law, the indictments could not be joined because the dissimilar charges were not part and parcel of a common scheme or plan.  He likewise maintained that the consolidation of the indictments created substantial prejudice that, as a result, impinged his constitutional right to a fair trial.

After carefully reviewing the record in this case, the Supreme Court concluded that Ciresi failed to preserve the majority of his evidentiary objections for appeal.  In regard to those that were preserved, the Court held that the trial justice did not abuse his discretion by admitting the instances of uncharged misconduct because the evidence fell within the exception in Rule 404(b) for proof of motive, intent or common plan.  The Court likewise upheld the trial justice’s joinder of the indictments, as well as his denial of Ciresi’s motion to sever.

Accordingly, the Supreme Court affirmed the judgments of the Superior Court.
Jessup & Conroy, P.C. v. Mary Y. Seguin, No. 10-264 (July 5, 2012)10-264
Before the Court was the appeal of the pro se defendant, Mary Y. Seguin (Seguin), challenging a Superior Court justice’s grant of summary judgment in favor of the plaintiff, Jessup & Conroy, P.C. (the law firm), on Seguin’s counterclaim in this collection action.  A motion justice of the Superior Court determined that Seguin had not submitted any competent evidence to show a disputed issue of material fact and that she had therefore failed to sustain her burden in opposing the motion.  On appeal, Seguin maintained that genuine issues of material fact existed as to each of her fifteen counts of her counterclaim against the law firm, which included claims of deceptive trade practices, RICO violations, negligence, and fraud, among others.  Seguin also contended that she did not receive a fair hearing on her opposition in the lower court.

After a de novo review of the motion justice’s grant of summary judgment, the Supreme Court held that, despite the voluminous materials presented by Seguin in connection with her opposition, she had failed to submit any competent evidence from which the Court could discern a genuine issue of material fact.  The Court also concluded that Seguin received a full and fair hearing on her opposition.  Based on Seguin’s failure to sustain her burden as a nonmoving party opposing a motion for summary judgment, the Supreme Court affirmed the judgment of the Superior Court.
Allen J. Drescher, as Trustee of Little Compton Realty Trust v. Sigurd W. Johannessen, No. 10-269 (July 5, 2012)10-269
The plaintiff, Allen J. Drescher (Drescher), appealed from a judgment of the Superior Court declaring that he had not acquired a prescriptive easement over a right-of-way owned by the defendant, Sigurd W. Johannessen (Johannessen), and that the right-of-way at issue was not a dedicated public road.  On appeal, Drescher maintained that the evidence adduced at trial clearly and convincingly proved his prescriptive use over the right-of-way.  Specifically, he challenged the trial justice’s determinations that his use of the right-of-way was not open, notorious, hostile, or under claim of right for a continuous period of ten years.  Drescher likewise contended that the trial justice erred in his conclusion that the right-of-way was not a public road.  Relying on subdivision plans depicting the right-of-way, as well as trial testimony about its local use, Drescher asserted that the necessary dedicatory intent and public acceptance to establish a public road was proved at trial.

The Supreme Court affirmed the Superior Court’s judgment in favor of Johannessen.  Affording the requisite deference to the trial justice’s findings of fact, the Court concluded that Drescher had failed to prove each element of a prescriptive easement by clear and convincing evidence.  The Court likewise found no error in the trial justice’s determination that the right-of-way was not a public road because Drescher failed to establish that Johannessen’s predecessor-in-interest intended to dedicate the right-of-way and that the right-of-way was accepted by the public for public use.
Joseph Iozzi et al. v. City of Cranston et al., Nos. 10-87, 10-112, 10-113 (July 5, 2012)10-87, 112, 113
Several days of intense rainfall in October 2005 overloaded the sewer system servicing the plaintiffs’ Cranston home, causing water and sewage to back up and enter the plaintiffs’ basement through a toilet, resulting in extensive damage to their home and personal property.

The plaintiffs filed suit against the city and the companies responsible for operating and maintaining the sewage disposal system (the operating companies), alleging negligence.  The plaintiffs also sued their homeowner’s insurance carrier (insurance carrier) for denying their claim of coverage under their homeowner’s insurance policy.  After summary judgments were granted in favor of the operating companies and the insurance carrier in the Superior Court for Providence County, the plaintiffs appealed.  The Supreme Court consolidated these separate appeals on April 10, 2012. 
 
On appeal, the plaintiffs alleged that the judgments in favor of the various defendants were improper because of the existence of several genuine issues of material fact.  Concerning the appeal involving the operating companies, the Supreme Court held that, because the plaintiffs failed to file a notice of appeal within twenty days from the date that final judgment was entered pursuant to Article I, Rule 4 of the Supreme Court Rules of Appellate Procedure, their appeal was untimely and not properly before the Court. 

Regarding the plaintiffs’ appeal from the judgment in favor of the insurance carrier, after first determining that the homeowner’s insurance policy was clear and unambiguous, the Supreme Court held that the policy excluded coverage for water damage caused from water or sewage that backed up from sewers.  The plaintiffs also argued in their appeal that a remaining issue of material fact existed about whether the property damage to their home was the result of an act of God or human negligence.  However, the Supreme Court held that this argument was waived because it was never raised in the prior proceedings. 
  
Accordingly, the Supreme Court affirmed the judgments of the Superior Court.
Robert I. Burke et al. v. Katherine Gregg et al., No. 11-148 (July 5, 2012)11-148
This controversy surrounds a newspaper article written by co-defendant Katherine Gregg that sparked an acrimonious on-air rant by the co-defendant Dan Yorke, a well-known radio talk show host, about the plaintiff Robert I. Burke, a local restaurateur and community activist.  The article described an annual St. Patrick’s Day lunch hosted by William Murphy, the then-Speaker of the House of Representatives of the Rhode Island General Assembly, at one of Burke’s restaurants.  The lunch, a private event, was in large measure a “roast” of local public figures.  In a story published by the Providence Journal, Gregg was openly critical of an “off the record” rule that banned reporters from disclosing the jokes made during the lunch.  Her article attributed the creation and enforcement of the policy to both Burke and Murphy.  The same day that Gregg published her story, Yorke referred to the article on the air and—apparently incensed by its contents—used his talk show as a platform to hurl a series of crude and disparaging remarks at Burke from the safety of his microphone.
 
Burke, along with BOEA, Inc., and Food & Beverage Corporation, filed a complaint in the Providence County Superior Court, alleging various counts of defamation and breach of contract against Gregg, the Providence Journal Company, Yorke, and Citadel Broadcasting Corporation.  All the defendants filed motions to dismiss the complaint.  After considering the arguments of the parties, a justice of the Superior Court granted the defendants’ motions to dismiss, finding that Gregg’s article—even if false or inaccurate—was nondefamatory, and that Yorke’s on-air comments were protected because, no matter how repugnant or derogatory, they were statements of opinion based on disclosed, nondefamatory facts.  The plaintiffs timely appealed from that decision.

The Supreme Court held that when Gregg’s article was considered in its totality from the point of view of an ordinary reader, its inaccurate attribution of the “off the record” rule to Burke was not defamatory because the comments could not reasonably be interpreted to have injuriously affected Burke’s reputation, degraded him in society, or brought him into public hatred and contempt.  On the contrary, the Court held that the article openly suggested that Burke and Murphy had a prudent, thoughtful, and logical reason for imposing an “off the record” rule, even if it was overtly critical of “press bans” per se.  Furthermore, the Court agreed with the motion justice that Yorke’s scurrilous remarks were expressed in the form of an opinion, and that he based his opinion on disclosed, nondefamatory facts:  Gregg’s article, which he referenced on the air.
 
The Court also held, however, that the motion justice did not definitively rule on the plaintiffs’ breach-of-contract claim against Citadel, and remanded this matter to the Superior Court for a hearing with respect to that count.
David M. Sullivan, Tax Administrator for the State of Rhode Island Division of Taxation v. William J. Reilly et al., No. 11-171 (July 5, 2012)11-171
The plaintiff, the Rhode Island Tax Administrator, filed this collection action against the defendants, William J. and Marielle Reilly, in pursuit of more than $1 million in assessed, but unpaid, personal income taxes from the late 1990s.  In their answer to the plaintiff’s complaint, the defendants denied that they owed any personal income taxes for the assessed years.  Eventually, the plaintiff filed a motion for summary judgment, which was granted by a justice of the Superior Court.  The defendants timely appealed, arguing that the motion justice erred because (1) the defendants were nonresidents that were not subject to Rhode Island income tax; (2) the period of limitation for filing a tax-collection-action had expired; and (3) the equitable doctrine of laches should bar the tax administrator’s suit under these circumstances.
  
The Supreme Court held that the motion justice did not err when he granted summary judgment to the plaintiff.  The Court held that the defendants were not entitled to judicial review of the tax administrator’s assessment of taxes for the contested tax years because they failed to exhaust their administrative remedies.  Taxpayers that wish to contest a tax assessment must follow the statutory scheme; they cannot simply wait to be sued by the tax administrator in a collection action and object for the first time in their answer to the complaint.  The Court also held that the defendants had waived any argument with respect to the statute of limitations or laches.
  
Accordingly, the Court affirmed the judgment of the Superior Court.  
GSM Industrial, Inc. v. Grinnell Fire Protection Systems Company, Inc., et al., No. 11-140 (July 5, 2012)11-140
This matter involved a dispute arising under the Rhode Island mechanic’s-lien statute.  The plaintiff, GSM Industrial, Inc., was a subcontractor that entered into an agreement with AirPol, Inc., a general contractor, to install an air-pollution-control mechanism on property owned by the defendant, Grinnell Fire Protection Systems, Inc.  When AirPol failed to pay GSM the balance of its fee, GSM filed a complaint to enforce a mechanic’s lien against Grinnell. In an attempt to comply with the complicated statutory scheme set forth in G.L. 1956 § 34-28-4, GSM executed a notice of intention to execute a mechanic’s lien.  GSM’s president signed the notice, which was “acknowledged” by a Pennslyvannia notary public.  The statute requires that the notice be executed “under oath.”  Eventually, Grinnell challenged the sufficiency of the notice of intention, alleging that the notary’s acknowledgement did not satisfy the “under oath” requirement, which rendered the lien “void and wholly lost” under the statute.  A justice of the Superior Court agreed, finding that a notarial acknowledgment was distinctly different from an oath, and that the notice was fatally defective. 

GSM appealed, arguing that the notice was valid because the statute does not require the “magic words” signed and sworn, and that a notarial acknowledgment was sufficient to satisfy the oath requirement.  GSM also contended that, even if it did not strictly comply with the statute, the oath requirement was directory rather than mandatory.  Further, GSM argued that it would “defy common sense” to dismiss the complaint when it could be amended without difficulty and did not result in prejudice to the defendants. 

The Supreme Court held that the acknowledgement of GSM’s notice of intention did not satisfy the statutory scheme.  The Court held that an “acknowledgement” is a formal declaration before a public officer by someone who signs a document that confirms that the signature is authentic and is his or her free act and deed. It is a verification of the fact of execution, not of the content of the document.  An oath, on the other hand, militates against meritless claims, frivolous misrepresentations, or vexatious assertions by ensuring that the declarant may be subject to legal penalties for false statements.  Furthermore, the Court held that the oath requirement was mandatory rather than directory because its language was unambiguous, unequivocal, and expressly incorporated by reference into § 34-28-4(a).
 
Accordingly, the Court affirmed the judgment of the Superior Court. 
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