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Folder: Steven Serenska v. Wells Fargo Bank, N.A., et al., No. 22-229 (February 8, 2024)
  
2/8/2024 11:08 AMDiFonzo, MelissaSteven Serenska v. Wells Fargo Bank, N.A., et al., No. 22-229 (February 8, 2024)
02-7.pdf
  
10/28/2016 11:12 AMPerez, KimRichard H. Boucher v. Kevin E. Sweet, No. 2002-7 (October 28, 2016)
The defendant, Kevin E. Sweet, appealed from an order granting summary judgment in favor of the plaintiff, Richard H. Boucher, in the amount of $48,155.35, plus interest, and counsel fees of $3,237.  The plaintiff executed an $80,000 promissory note to the defendant, secured by real estate in West Warwick, Rhode Island.  The plaintiff defaulted on the note and the defendant instituted foreclosure proceedings.  After the required notice and advertising, a foreclosure sale was held.  The defendant, the only bidder, purchased the property for $35,000 and subsequently filed suit in the Superior Court to collect the deficiency on the note.
  
In the Superior Court, a hearing justice granted the defendant’s motion for summary judgment.  The defendant appealed, arguing that the hearing justice erred in finding no improprieties in the foreclosure sale.  He contended that the defendant violated the sale terms, including paying the required deposit at the time of sale and signing an agreement encompassing the terms of sale.  The defendant asserted that the improprieties, coupled with the inadequate sale price, were sufficient to challenge the foreclosure sale.
 
The Supreme Court held that the defendant’s alleged violations of the sale terms were minor deficiencies and not evidence of fraud or collusion.  Thus, the Court concluded that the deficiencies did not amount to improprieties in the foreclosure sale.  Accordingly, the Court affirmed the hearing justice’s grant of summary judgment. 

Justice Flaherty did not participate.
Item10/28/2016 11:11 AM2016-2017
09-46.pdf
  
7/18/2017 12:22 PMPerez, KimState v. Boghos Terzian, No. 09-46 (June 23, 2017)
The defendant, Boghos Terzian (the defendant), appeals from judgments of conviction entered in the Superior Court following a jury trial.  The defendant was convicted on three counts of felony assault with a dangerous weapon and one count of carrying a pistol without a license.  Before the Supreme Court, the defendant contended that the Superior Court justice erred in denying his motion to suppress evidence seized by police during a warrantless entry and search of his home.

The state asserted that consent and exigent circumstances justified the officers’ warrantless entry and search of the defendant’s home.  The Supreme Court rejected the state’s argument and held that the warrantless search was in violation of the defendant’s Fourth Amendment rights.  Additionally, the Supreme Court held that the admission of the firearm did not amount to harmless error.  Accordingly, the Supreme Court vacated the judgment of the Superior Court and remanded the case for a new trial.
Item6/23/2017 12:21 PM2016-2017
12-171.pdf
  
11/3/2015 11:08 AMPerez, KimMichaela Symonds, by and through her mother and natural guardian, Rhonda Symonds v. City of Pawtucket et al., No. 12-171 (November 3, 2015)
The plaintiff, Michaela Symonds, by and through her mother and natural guardian, Rhonda Symonds, appealed from a Superior Court order of summary judgment entered against her and in favor of the City of Pawtucket (city) in this personal injury action.  The plaintiff was injured while playing on a wooden jungle gym at Slater Memorial Park in Pawtucket, Rhode Island, when a sliver of the jungle gym broke off and pierced her skin.
 
In the Superior Court, the city filed a motion for summary judgment, arguing that it was immune from liability pursuant to Rhode Island’s Recreational Use Statute (RUS), G.L. 1956 chapter 6 of title 32, which modifies the common law by treating users of public and private recreational properties as trespassers, thus greatly reducing the duty of care that owners owe to recreational users.  The hearing justice determined that no genuine issue of material fact existed, the RUS rendered the city immune from liability, and the plaintiff’s claim did not fall within any exception to the RUS.  Therefore, the hearing justice granted summary judgment in favor of the city.

On appeal, the plaintiff argued that the trial justice’s determination that the plaintiff’s claim did not fall within any exception to the RUS was in error.  The Supreme Court held that the exception to the RUS in § 32-6-5(a)(1) was inapplicable because the city did not act willfully or maliciously in failing to guard or warn against the alleged dangerous condition of the jungle gym.  Accordingly, the Supreme Court affirmed the judgment of the Superior Court. 
Item11/3/2015 11:08 AM2015-2016
12-242.pdf
  
12/6/2016 11:40 AMPerez, KimPortsmouth Water and Fire District v. Rhode Island Public Utilities Commission, No. 12-242 (December 6, 2016)
This case came before the Supreme Court pursuant to a statutory petition for a writ of certiorari filed in accordance with G.L. 1956 § 39-5-1.  The petitioner, Portsmouth Water and Fire District (Portsmouth), seeks review of a Public Utilities Commission (PUC) order from docket No. 4025 issued in response to the Supreme Court’s remand order that required the PUC to make more specific findings of fact in a rate case involving the City of Newport’s Utility Department, Water Division (Newport Water or utility).  Specifically, Portsmouth is contesting issues surrounding a $1,584,171 debt that Newport Water owed to the city that stem from docket No. 3818.

The Supreme Court affirmed the PUC’s holding that Newport Water realized $557,499 in savings from efficiencies, as described in docket No. 3818.  The Supreme Court held, however, that the PUC went beyond the scope of the Supreme Court’s remand order when it ruled that Newport Water could use excess revenues to pay down its debt.  Consequently, the Supreme Court vacated the PUC’s order to the extent that it allowed Newport Water to use the excess revenues to pay down the debt, absent further action by the PUC.  Finally, the Supreme Court held that it could not determine how much, if any, of the $1,584,171 debt has been repaid.  Accordingly, the Supreme Court directed the PUC to certify to it how much Newport has repaid to the city.
Item12/6/2016 11:40 AM2016-2017
12-325.pdf
  
4/26/2016 11:04 AMPerez, KimState v. Robert Beaudoin, No. 12-325 (April 26, 2016)
The defendant, Robert Beaudoin, appealed from a judgment finding him to be in violation of the terms of his probation and sentencing him to serve two years of a previously imposed suspended sentence.  On appeal, the defendant argued that the hearing justice “clearly erred” in finding that he violated the conditions of his probation on the basis of the evidence presented by the state.  The defendant averred that the hearing justice’s findings of fact were arbitrary and capricious, maintaining that “they were unsupported by the facts adduced at the hearing.”

The Supreme Court affirmed the judgment of the Superior Court.  The Supreme Court noted that the hearing justice had thoroughly assessed the evidence presented at the hearing and that he had issued a bench decision explaining why he was reasonably satisfied that the defendant had failed to keep the peace and remain of good behavior.  The Supreme Court found no reason to disturb the credibility determinations of the hearing justice and, accordingly, affirmed the adjudication of probation violation.
Item4/26/2016 11:04 AM2015-2016
12-49.pdf
  
2/18/2016 11:07 AMPerez, KimJoseph Perry v. State of Rhode Island, No. 12-49 (February 18, 2016)
Joseph Perry, the petitioner, appealed from the July 7, 2010 denial of his postconviction relief application in the Providence County Superior Court.  Mr. Perry contended on appeal that the justice who ruled on his application for postconviction relief erred in denying his application for the following reasons: (1) the justice who presided over Mr. Perry’s second murder trial should have recused; (2) Mr. Perry received ineffective assistance of counsel at the second murder trial because counsel did not request that the justice recuse; and (3) the hearing justice who ruled on his postconviction relief application failed to consider Mr. Perry’s contention that his counsel at his second murder trial was also ineffective due to the fact that counsel did not introduce evidence to support a diminished capacity defense and refused to allow Mr. Perry to testify on his own behalf.

The Supreme Court held that Mr. Perry did not produce sufficient evidence to show that the justice who presided over his second murder trial should have recused.  The Court likewise held that Mr. Perry did not show that his counsel was ineffective in failing to request that the trial justice recuse.  Lastly, the Supreme Court determined that the hearing justice did not err in failing to address Mr. Perry’s other two claims with respect to ineffective assistance of counsel because Mr. Perry produced no evidence to support those contentions and did not address them before the hearing justice.  Accordingly, the Supreme Court affirmed the judgment of the hearing justice denying Mr. Perry’s application for postconviction relief.
Item2/18/2016 11:06 AM2015-2016
13-14, 16.pdf
  
6/24/2016 11:38 AMPerez, KimKathryn Manning et al. v. Peter J. Bellafiore, M.D., et al., Nos. 13-14, 13-16 (June 24, 2016
This case originated as a negligence and wrongful death action brought by the plaintiff Kathryn Manning, individually and as administratrix of the estate of Michael Manning and on behalf of her four minor children, against Peter J. Bellafiore, M.D., but has since evolved into extensive litigation regarding sanctions.  The issue in this case as it related to sanctions was whether Dr. Bellafiore’s trial testimony differed from his pretrial discovery disclosures and, if so, who was at fault for the inconsistencies.  The Superior Court sanctioned both Dr. Bellafiore and the law firm that represented him at trial, White & Kelly, P.C., for their failure to have made certain pretrial disclosures.  Both parties appealed their sanctions to the Supreme Court.  On appeal, Dr. Bellafiore argued that any failure during discovery to disclose certain conversations which he had with the decedent was attributable to his attorney, as he had informed his attorney that such conversations occurred.  Meanwhile, the White & Kelly defendants maintained that Dr. Bellafiore had not disclosed any conversations that he claimed to have had with the decedent to them prior to trial, and that, accordingly, they should not be held responsible for failing to disclose statements of which they had no prior knowledge.
  
After extensive review of the voluminous record, which included all pretrial discovery materials, trial transcripts and exhibits, as well as materials related to the sanction proceedings, the Supreme Court held that: (1) Rule 11 sanctions were not appropriate for discovery violations, but instead, the Superior Court could rely on its inherent power to fashion an appropriate sanction when a party acted in bad faith, vexatiously, wantonly, or for oppressive reasons; (2) the Superior Court did not overlook or misconceive material evidence in finding that Dr. Bellafiore engaged in sanctionable conduct based upon his failure to disclose certain conversations he had had with the decedent during discovery and that a finding of bad faith could be inferred from the Superior Court’s decision, but the trial justice abused his discretion in sanctioning Dr. Bellafiore a sum of $122,398.86 for this conduct and, therefore, lowered the amount to $38,398.53; and (3) a sanction against trial counsel was not appropriate where the trial justice did not make any finding that counsel acted in bad faith, vexatiously, wantonly, or for oppressive reasons, nor could such a finding be inferred.  Accordingly, the Supreme Court affirmed in part and vacated in part the judgment of the Superior Court, and instructed the Superior Court to enter an order sanctioning Dr. Bellafiore in the amount of $38,398.53. 
Item6/24/2016 11:37 AM2015-2016
13-149, 13-227.pdf
  
5/6/2016 11:18 AMPerez, KimBryan Joachim v. Straight Line Productions, LLC et al., Nos. 2013-149, 13-227 (May 6, 2016)
These consolidated cases came before the Supreme Court after the Superior Court entered an order of dismissal as a sanction for the mid-trial production of certain documents and denied the plaintiff, Bryan Joachim’s (plaintiff or Joachim), motion to vacate such order.  On appeal, Joachim set forth a myriad of arguments to support his contentions that the hearing justice erred in (1) dismissing the case pursuant to Rule 37(b)(2) of the Superior Court Rules of Civil Procedure; and (2) denying his motion to vacate the order of dismissal pursuant to Rule 60(b) of the Superior Court Rules of Civil Procedure.
 
The Supreme Court held that, while Rule 37(b)(2) requires the plaintiff to violate an order as a prerequisite for dismissal, a trial justice has authority under Rule 37(d) to dismiss an action in the absence of such an order when a party commits certain discovery violations.  In addition, the Supreme Court held that it was within the trial justice’s discretion to impose a sanction of dismissal based upon the discovery violation in this case and the plaintiff’s subsequent conduct in dealing with that discovery violation.  Thus, the Supreme Court held that the case was properly dismissed pursuant to Rule 37(d).
  
The Supreme Court also concluded that the various arguments presented in Joachim’s Rule 60(b) motion to vacate were meritless, and, therefore, the trial justice properly denied that motion.  Accordingly, the Supreme Court affirmed the judgment of the Superior Court. 
Item5/6/2016 11:17 AM2015-2016
13-174, 17-394.pdf
  
4/30/2019 11:01 AMPerez, KimIn re Estate of Elizabeth Brown, a/k/a Letizia I. Brown, Nos. 13-174, 17-394 (April 30, 2019)
The appellant, Mary Ryan, appealed pro se from an April 26, 2013 final judgment of the Providence County Superior Court and a June 5, 2013 order of the same court.  The April 26, 2013 judgment denied and dismissed Ms. Ryan’s probate appeal and prohibited Ms. Ryan, with significant exceptions, from “filing pleadings or other documents” in Superior Court unless they have been signed by a Rhode Island licensed attorney.  The June 5, 2013 order denied Ms. Ryan’s motions to vacate which were filed pursuant to either Rule 59 or Rule 60 of the Superior Court Rules of Civil Procedure.  Ms. Ryan also raised the issue of the attorneys’ fees awarded to opposing counsel in an April 22, 2013 order of the Superior Court.  Ms. Ryan made numerous contentions of error on appeal.
 
The Supreme Court held that Ms. Ryan failed to provide the necessary Superior Court transcripts for the Supreme Court to be in a position to review many of her contentions on appeal.  However, based on the record before it, the Court instructed the Superior Court to moderately reduce the amount of attorneys’ fees awarded to opposing counsel in the case and to limit the duration of the sanctions against Ms. Ryan with respect to filing pro se in Superior Court.  With respect to the remaining contentions that were reviewable, the Court was unable to detect any reversible error on the part of the trial justice.  Accordingly, the Court remanded with directions to modify the April 22, 2013 attorneys’ fees order, affirmed in part and vacated in part the April 26, 2013 judgment, and affirmed the June 5, 2013 order of the Superior Court.
Item4/30/2019 11:01 AM2018-2019
13-189.pdf
  
7/7/2016 11:21 AMPerez, KimState v. Armando Garcia, No. 13-189 (July 7, 2016)
In appealing his judgment of conviction to the Supreme Court, the defendant, Armando Garcia, alleges error in the denial of his motion to suppress his confession to police, certain evidentiary rulings made by the trial justice, and the denial of his motion for a new trial.
  
After examining the record, the Court determined that, in light of the trial justice’s findings of historical fact, the trial justice did nor err in concluding that the defendant voluntarily, knowingly, and intelligently waived his right to freedom from self-incrimination.  The Court further rejected the defendant’s argument on appeal that delay in his presentment before a judicial officer warranted suppression of his confession.  The Court concluded that the defendant had waived presentment, that such waiver was not the product of undue influence, and that the defendant’s confession was not the causative effect of any undue delay in presentment.

The Supreme Court further held that the evidentiary issues raised on appeal were without merit and that the trial justice did not overlook or misconceive evidence in denying the defendant’s motion for a new trial.

Accordingly, the Supreme Court affirmed the judgment of the Superior Court.
Item7/7/2016 11:21 AM2015-2016
13-203.pdf
  
5/3/2017 10:50 AMPerez, KimState v. Anthony Parrillo, No. 13-203 (May 3, 2017)
The Supreme Court issued a writ of certiorari to review a Superior Court order denying the state’s request to adjudge Anthony Parrillo a probation violator.  The hearing justice’s decision to deny the state’s request was based upon his finding that Parrillo was no longer on probation in 2011, the time that he allegedly committed the offense of felony assault.  The Supreme Court held that any credit that Parrillo received on his thirty-year sentence (as a result of time served and/or good behavior) did not actually reduce his sentence; instead, it reduced the time that he would spend incarcerated.  The Supreme Court held that Parrillo’s thirty-year sentence in 1986 meant that he was on probation until 2016, and was subject to being adjudged a violator in 2011.

The Supreme Court also entertained Parrillo’s argument that, even if he was deemed to be on probation in 2011, the state should have been barred from adjudging him a probation violator based on the principles of equitable estoppel because the state, through the Department of Corrections, informed Parrillo in a 2009 letter that his probation had terminated at that time.  Although the Supreme Court rejected this argument—primarily because Parrillo failed to establish the requisite elements to warrant such relief—the Court remanded the case to the Superior Court for a determination of whether the state should be barred based on principles of due process.  Accordingly, the Supreme Court vacated the order of the Superior Court and remanded the case thereto.

Item5/3/2017 10:50 AM2016-2017
13-213, 14-39.pdf
  
6/23/2016 11:13 AMPerez, KimDawn K. Roy, in her capacity as the administratrix of the estate of Brett A. Roy, et al. v. The State of Rhode Island et al., Nos. 13-213, 14-39 (June 23, 2016)
Tragically, on July 10, 2008, twenty-nine-year-old Brett A. Roy broke his neck when diving into the pond at World War II Memorial Park in Woonsocket.  Roy and his wife, Dawn K. Roy (plaintiffs), individually and as the parents of their two children, filed this action against the State of Rhode Island, the Rhode Island Department of Environmental Management (DEM), and two individuals in their official capacities as DEM employees (collectively, the state), alleging theories of negligence and premises liability.  After a multi-week trial, the jury returned a verdict for the state, finding that the state did not “fail to warn or guard against a dangerous condition, use, structure or activity” or against a “non-obvious, latent dangerous condition” at the pond.  Subsequently, both parties filed renewed motions for judgment as a matter of law, which the trial justice denied.  However, the plaintiffs also filed a motion for a new trial, which the trial justice granted.  Thereafter, the state brought the instant appeal arguing that the trial justice erred in granting the plaintiffs’ motion for a new trial and in denying its motion for judgment as a matter of law.  The plaintiffs filed a cross-appeal arguing that their motion for judgment as a matter of law should have been granted.
  
The Supreme Court concluded that that the state bore no liability for Roy’s injuries—either because diving is an open and obvious danger or because the state was protected under the Recreational Use Statute.  Consequently, the Supreme Court reversed the decision of the trial justice denying the state’s motion for judgment as a matter of law.
Item6/23/2016 11:13 AM2015-2016
13-216, 217, 220.pdf
  
6/13/2016 11:28 AMPerez, KimBarbara A. Voccola and Edward R. Voccola, in their capacities as Co-Executors of the Estate of Edward E. Voccola v. Patricia A. Forte et al., Nos. 13-216, 13-217, 13-220 (June 13, 2016)
Patricia Forte and Red Fox Realty, LLC (the defendants) appealed from a Providence County Superior Court, March 12, 2013 final judgment in favor of Barbara Voccola and Edward R. Voccola, in their capacities as co-executors of the Estate of Edward E. Voccola (the plaintiffs), holding that Edward E. Voccola’s signature on certain documents was not genuine and finding three warranty deeds at issue in the case to be null and void.  The defendants’ primary contentions on appeal were as follows: (1) the trial justice erred when she held that Edward E. Voccola’s signatures authorizing the transfer of the properties at issue were not genuine; and (2) the trial justice erred in holding in the plaintiffs’ favor on the defendants’ claim that Edward E. Voccola gifted the properties at issue to Patricia Forte.  The plaintiffs filed a cross-appeal from the decision of the trial justice awarding Patricia Forte $82,000 for her counterclaim.  They contended on appeal that the trial justice erred in making that award because: (1) in her counterclaim, Patricia Forte did not seek reimbursement for paying Edward E. Voccola’s criminal fines, which act was the basis of the trial justice’s $82,000 award; and (2) any “claim of damages as to the criminal fines” was settled in a 2007 Settlement Agreement between various parties, including Edward E. Voccola and Patricia Forte.
Item6/13/2016 11:27 AM2015-2016
13-221.pdf
  
2/1/2016 10:54 AMPerez, KimState v. Kimberly Fry, No. 13-221 (February 1, 2016)
The defendant, Kimberly Fry, appealed from a judgment of conviction after being found guilty by a jury of second degree murder of her eight-year-old daughter, Camden Fry.  On appeal, the defendant contended that the trial justice erred in:  (1) declining to instruct the jury on voluntary manslaughter due to diminished capacity and inadequately instructing the jury on accident; (2) permitting the state to elicit testimony from a witness through improper impeachment and leading questions; (3) failing to declare a mistrial following the state’s violation of the court’s sequestration order; and (4) allowing admission of a video depicting the scene of the murder, including the victim’s body.

The Supreme Court held that the defendant waived any argument with regard to an instruction on voluntary manslaughter due to diminished capacity by failing to raise a timely objection before the jury retired to deliberate.  The Court further held that the accident instruction provided by the trial justice was adequate.  In addition, the Court held that the defendant’s argument regarding improper impeachment was not properly preserved for appeal.  The Court also held that the defendant failed to object to all but one of the leading questions to which she assigned error on appeal, and the trial justice did not err in permitting the state’s attorney to ask yes-or-no questions during the direct examination of its own witness.  Additionally, the Court held that the trial justice’s sequestration order was not violated and, in any event, the remedial measure taken by the trial justice was sufficient to prevent any prejudice.  Finally, the Court held that the admission of the video depicting the victim’s body was appropriate under Rule 403 of the Rhode Island Rules of Evidence and, therefore, was properly admitted.
  
Accordingly, the Court affirmed the Superior Court’s judgment of conviction.
Item2/1/2016 10:54 AM2015-2016
13-236.pdf
  
1/31/2017 10:49 AMPerez, KimAnne duPont Corbin v. Richard Beverley Corbin, III., No. 13-236 (January 31, 2017)
The defendant, Richard Beverley Corbin, III, appealed from an order of the Family Court on two post-final-judgment motions filed after his divorce from the plaintiff, Anne duPont Corbin.  On appeal, the defendant argued that the trial justice erred when she determined that the post-employment compensation that he received from his former employer was marital property and thereby her award of 50 percent of it to Anne was also error.  Alternatively, the defendant maintained that, should the Supreme Court affirm the trial justice’s findings with regard to the post-employment compensation, then the fee that he paid to an attorney for negotiating that compensation should be considered marital debt, of which Anne should pay half.  Additionally, the defendant argued that the trial justice erred when she awarded counsel fees to Anne for her prosecution of a motion to modify child support, after she made a specific finding that the defendant did not adequately notify Anne when he regained employment.
Item1/31/2017 10:49 AM2016-2017
13-241.pdf
  
7/12/2016 11:06 AMPerez, KimState v. Juan Soler, No. 13-241 (July 12, 2016)
The defendant, Juan Soler, appealed from a Superior Court judgment convicting him of assault with a dangerous weapon and vandalism.  The defendant argued that the trial justice had erred by refusing to include a self-defense instruction in the jury charge because there was sufficient evidence introduced during the trial to support his self-defense theory.  After carefully reviewing all of the testimony at trial, the Supreme Court held that the defendant had presented sufficient evidence, albeit slight and tenuous, to warrant a self-defense jury instruction.  The Supreme Court concluded that the lack of a self-defense instruction within the jury charge entitled the defendant to a new trial on the charge of assault with a dangerous weapon.  Accordingly, the Supreme Court vacated the defendant’s conviction for felony assault and remanded the case to the Superior Court for further proceedings.
Item7/12/2016 11:06 AM2015-2016
13-246.pdf
  
12/11/2015 3:00 PMPerez, KimState v. James Oliveira, No. 13-246 (December 4, 2015)
In this appeal from a judgment of conviction of first-degree child molestation, the defendant, James Oliveira, argued that (1) his right to a speedy trial was violated by the forty-five-month delay between the return of the record to the Superior Court after the Supreme Court vacated the conviction from the defendant’s first trial and the commencement of his retrial and (2) the trial justice abused his discretion in admitting hearsay testimony.  The Supreme Court held that the defendant’s right to a speedy trial was not violated because, although the delay was presumptively prejudicial, most of the delay was caused by defense counsel and, therefore, properly attributed to the defendant, the defendant did not adequately assert his right to a speedy trial, and the defendant failed to demonstrate prejudice.  The Court also determined that several of the defendant’s claims of evidentiary error were without merit.  To the extent that any evidentiary errors were committed by the trial justice, the errors were harmless beyond a reasonable doubt because the evidence of the defendant’s guilt was overwhelming.    
Item12/4/2015 2:59 PM2015-2016
13-252.pdf
  
9/21/2016 1:41 PMPerez, KimMichael Morse v. Employees Retirement System of the City of Providence, No. 13-252 (June 6, 2016)
The petitioner, Michael Morse, sought review, pursuant to a writ of certiorari, of a decision of the Retirement Board of the Employees Retirement System of the City of Providence (the board), dated July 24, 2013.  In its decision, the board denied Morse’s application for accidental disability retirement.  The petitioner argued that the decision should have been quashed because it was based solely on the fact that he did not satisfy the board’s self-imposed “unanimity rule,” requiring that all three physicians who examined Morse agree that the applicant was permanently disabled as a result of a work-related injury.  The petitioner argued that the unanimity rule was contrary to the plain language of the city’s ordinance on accidental disability retirement and that the board’s adoption of the rule effectively abdicated its discretion to review applications to a single disagreeing physician.  The board argued that the Supreme Court should affirm its decision because the unanimity rule is required by the plain language of the ordinance and by legislative history.
Item6/6/2016 1:40 PM2015-2016
13-254.pdf
  
4/26/2016 11:03 AMPerez, KimState v. Robert Beaudoin, No. 13-254 (April 26, 2016)
In 2009, the defendant, Robert Beaudoin, entered a plea of nolo contendere to one count of felony assault and was sentenced to fifteen years at the Adult Correctional Institutions, five months to serve and the remaining 175 months suspended with probation.  In 2012, a Superior Court trial justice, after holding an evidentiary hearing, declared the defendant to be a probation violator and ordered him to serve two years of the suspended sentence that was imposed in 2009.  After a jury trial on the charges that gave rise to the probation violation proceeding, the defendant was acquitted in 2013.  Meanwhile, in 2010, the General Assembly amended G.L. 1956 § 12-19-18, see P.L. 2010, ch. 311, § 1, and added subsections (b) and (c) to that statute, thereby effectively mandating the defendant’s release from imprisonment after his acquittal.  The defendant moved for relief under § 12-19-18(b).  The trial justice denied the motion, concluding that the statute could not be applied retroactively and further declaring that the amendment was unconstitutional even when applied prospectively.
  
The Supreme Court held that this case involved a prospective, not retroactive, application of § 12-19-18(b) because all three events that triggered the statute’s application—(1) an evidentiary hearing; (2) the adjudication of probation violation and the imprisonment of the defendant on his previously imposed suspended sentence as a result of that adjudication; and (3) the subsequent acquittal on the underlying charges—occurred after the effective date of the amendment to § 12-19-18.  Additionally, the Court determined that, because neither party raised the issue of the constitutionality of § 12-19-18(b) when applied prospectively, the trial justice was without authority to decide it.  Accordingly, the Court vacated the judgment and remanded for proceedings consistent with the opinion.
Item4/26/2016 11:03 AM2015-2016
13-272.pdf
  
2/4/2016 11:03 AMPerez, KimState v. Barry Offley, No. 13-272 (February 4, 2016)
The defendant, Barry Offley, appealed from a judgment of conviction entered after a jury trial in Providence Superior Court during the fall of 2007.  The state alleged that the defendant and his uncle, Alonzo Shelton, were responsible for the execution-style murder of one woman, Jessica Imran, and the assault with intent to murder another, Julie Lang, on July 27, 2006.  Lang survived and identified Offley as Imran’s killer.  The defendant and Shelton were tried separately.  Shelton went to trial first and was convicted on May 9, 2007.  At the defendant’s trial, the defendant testified and disavowed any responsibility for the shootings.  Although he admitted to carrying a gun into Imran’s apartment, he maintained that he was an innocent, albeit intoxicated, bystander to his uncle’s crimes.  The defendant did not concede that he shot Imran.   Rather, he testified that a shot went off accidentally while he was showing Lang the weapon and that his uncle then seized the weapon and shot the two women.
  
After trial, the jury convicted Offley of the first-degree murder of Imran, conspiracy with his uncle to murder Imran, assault of Lang in a dwelling with intent to murder her, conspiracy to murder Lang, carrying a pistol without a license, discharging a firearm while committing a crime of violence that resulted in Imran’s death, and discharging a firearm while committing a crime of violence resulting in Lang’s injuries.  On appeal, the defendant argued that the trial justice erred when he allowed the state to read into the record prior testimony from a witness at Shelton’s earlier trial about the defendant’s level of intoxication on the night of the shooting.  The defendant also argued that the trial justice abused his discretion when he denied his motion for a new trial.

The Supreme Court affirmed the judgment of conviction.  The Court held that, to the extent the state should not have read the prior testimony into the record, any error was harmless because the defendant could not avail himself of a diminished capacity defense, because he testified and denied any responsibility for the shootings.  Second, the Court held that the trial justice did not err when he denied the defendant’s motion for a new trial because the trial justice properly 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.  
Item2/4/2016 11:02 AM2015-2016
13-278.txt.pdf
  
4/29/2016 10:50 AMPerez, KimState v. Ray Burgess, No. 13-278 (April 29, 2016)
After his motion to suppress was denied, the defendant, Ray Burgess, was convicted of one count of possession of cocaine.  On appeal, the defendant argued that the trial justice erred in denying his motion to suppress.  Accepting the state’s concession that the police immediately arrested the defendant upon his emergence from a restaurant, the Supreme Court held that the motion to suppress should have been granted because the arrest was not supported by probable cause where the tip from a first-time informant who police had discovered was the subject of an outstanding warrant was devoid of predictive detail and failed to indicate the informant’s basis of knowledge of the alleged criminal activity and where police failed to corroborate or independently investigate the bare-bones tip.  Accordingly, the Court vacated the defendant’s conviction.
Item4/29/2016 10:49 AM2015-2016
13-288.pdf
  
1/12/2016 11:14 AMPerez, KimCCF, LLC v. Wayne Pimental, in his capacity as the Building Official for the Town of East Greenwich, Rhode Island et al., No. 13-288 (January 12, 2016)
This appeal emanated from a dispute between competing fast-food restaurants over whether one of the restaurants was entitled to build and operate a drive-through window pursuant to the East Greenwich Zoning Ordinances.  The plaintiff, operator of a Wendy’s restaurant, sought to prevent one of the defendants from building and operating a drive-through window at a new McDonald’s restaurant across the street from the plaintiff’s location.  A Superior Court justice resolved the dispute on cross-motions for summary judgment, denying the plaintiff’s requested mandatory injunction and writ of mandamus.  On appeal, the plaintiff contended that, according to the applicable zoning ordinances, McDonald’s Corporation could not build the drive-through window without first securing a special-use permit application from the East Greenwich’s Zoning Board of Review.  The Supreme Court held that the applicable zoning ordinance allowed the drive-through window as a matter of right and had not required a special-use permit.  Accordingly, the Supreme Court affirmed the judgment of the Superior Court. 
Item1/12/2016 11:13 AM2015-2016
13-289.pdf
  
4/1/2016 9:31 AMPerez, KimState v. Tony Gonzalez, No. 13-289 (March 29, 2016)
The defendant, Tony Gonzalez, appealed from a conviction following a jury trial in Kent County Superior Court.  The defendant was convicted of one count of murder in the first degree, in violation of G.L. 1956 § 11-23-1; one count of assault with intent to commit murder, in violation of G.L. 1956 § 11-5-1; one count of “discharg[ing] a firearm while committing a crime of violence, to wit, murder, resulting in the death of Carl Cunningham, Jr.,” in violation of G.L. 1956 § 11-47-3.2; and one count of “discharg[ing] a firearm while committing a crime of violence, to wit, assault with intent to commit murder,” in violation of § 11-47-3.2.  On appeal, Mr. Gonzalez contended that the trial justice erred in failing to grant his motion to suppress certain evidence that was obtained as a result of his warrantless arrest in his home.  He specifically posited that “neither exigent circumstances nor consent justified the failure of the * * * police to obtain a warrant * * *.”  Mr. Gonzalez also argued on appeal that the trial justice erred in failing to “remove two biased jurors from the jury” or, in the alternative, grant a mistrial.

The Supreme Court held: (1) that the defendant’s mother did not consent to the entry of police into her home; (2) that her signing of a consent to search form was not free and voluntary; (3) that exigent circumstances were not present so as to justify a warrantless search; and (4) that the defendant’s signing of a consent to search form was not sufficiently attenuated from his illegal arrest so as to be a valid consent.  The Supreme Court went on to hold that the trial justice erred in failing to exclude the evidence at issue which was obtained as a result of the defendant’s warrantless arrest in his home because the defendant’s Fourth Amendment rights were violated by that warrantless entry.  Moreover, it was the judgment of the Court that the admission of the evidence at issue was not harmless error; and the Court found it unnecessary to reach the issue of the allegedly biased jurors.  Accordingly, the Supreme Court remanded the case for a new trial.
Item4/1/2016 9:31 AM2015-2016
13-290.pdf
  
3/11/2016 11:05 AMPerez, KimState v. Donald Greenslit, No. 13-290 (March 11, 2016)
The defendant, Donald Greenslit, appealed from a conviction on several counts following a jury trial in Providence County Superior Court.  Mr. Greenslit contended that the trial justice erred when she determined that a new trial should not be granted because, in his view, the state did not present adequate evidence of premeditation to support a conviction for murder in the first degree.  He also challenged his conviction for obstructing a firefighter.

The Supreme Court held that the trial justice properly denied Mr. Greenslit’s motion for a new trial.  The Court concluded that there was adequate evidence in the record to support a finding of premeditation.  The Court further concluded that there was adequate evidence to support the conviction for obstruction of a firefighter.

Accordingly, the Court affirmed the Superior Court’s denial of the defendant’s motion for a new trial.
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13-297, 298, 299.pdf
  
5/10/2016 11:07 AMPerez, KimAntonio Ribeiro v. The Rhode Island Eye Institute, et al., Nos. 13-297, 13-298, 13-299 (May 10, 2016)
The plaintiff, Antonio Ribeiro, filed a medical malpractice suit against his optometrist, Dr. Martin Newman, and Dr. Newman’s employer, the Rhode Island Eye Institute, LLC.  At trial, Ribeiro argued that Dr. Newman had breached the duty of care owed to him because he failed to diagnose a detached retina and that that negligence had resulted in a permanent vision loss in Ribeiro’s right eye.  Ribeiro also sought to hold the Eye Institute vicariously liable for Dr. Newman’s negligence.  At the close of Ribeiro’s case, the defendants moved for judgment as a matter of law pursuant to Rule 50 of the Superior Court Rules of Civil Procedure, arguing that Ribeiro had failed to meet his burden of proving that there had been a deviation from the standard of care, proximate causation, and damages.  The trial justice took the motions under advisement and the defendants proceeded with their case.  After hearing all the evidence, the jury returned a verdict in favor of the defendants, finding that, although Dr. Newman had violated the standard of care in treating Ribeiro, that violation was not the cause of Ribeiro’s vision loss.  All parties then filed posttrial motions.  Ribeiro moved for a new trial, arguing that the trial justice erred by restricting his causation expert’s trial testimony.  The defendants renewed their motions for judgment as a matter of law and, in the alternative, moved for a new trial on the issue of standard of care.  The trial justice denied all posttrial motions; and the parties, having timely appealed and cross-appealed, appeared before the Supreme Court arguing that the trial justice erred in denying their respective motions.
 
The Supreme Court concluded that the trial justice impermissibly limited the testimony of Ribeiro’s causation expert.  As a result, the Supreme Court vacated the judgment and remanded the case to the Superior Court for a new trial on all issues.  Because neither of the defendants renewed their Rule 50 motion at the close of all the evidence, but instead waited until after the jury returned its verdict to renew that motion, the Supreme Court held that the defendants waived their ability to challenge the ruling on appeal.  Finally, the Supreme Court did not reach the merits of the defendants’ appeal of the denial of their motion for a new trial because the plaintiff’s appeal was sustained and a new trial was already granted on all issues.
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13-311.pdf
  
11/2/2016 11:13 AMPerez, KimMathew M. Cote v. John Aiello et al., No. 13-311 (November 2, 2016)
The plaintiff, Mathew M. Cote (plaintiff), appealed from a Superior Court judgment in favor of the defendants, John and Anna-Maria Aiello (defendants), dismissing the plaintiff’s claims for breach of an implied contract, promissory estoppel, fraud, negligent misrepresentation, and unjust enrichment after a nonjury trial.  The plaintiff argued that the trial justice erred in finding that the plaintiff failed to prove that an implied contract to purchase the defendants’ business, Richmond Ready Mix, arose from the statements of the parties and that the promises made by the defendants were not clear and unambiguous declarations to support a claim for promissory estoppel.  The plaintiff also assigns error to the trial justice’s dismissal of his fraud and negligent misrepresentation claims, as well as the measure of damages awarded on his unjust enrichment claim.

The Supreme Court held that all of the trial justice’s findings and conclusions were supported by ample evidence in the trial record.  The Court was satisfied that competent evidence supported the trial justice’s finding that the parties did not enter into an implied contract, as both mutual assent and the essential terms of a potential agreement were lacking.  The Court was additionally convinced that the trial record supported the finding that the defendants’ statements were not clear, nor was it reasonable for the plaintiff to rely on such statements to his detriment given their ambiguity.  The Court determined that a fraud or negligent misrepresentation claim cannot be based on statements concerning future possibilities.  Consequently, the Court held that the trial justice did not err in dismissing the plaintiff’s fraud and negligent misrepresentation claims.  Lastly, the Court concluded that the trial justice did not erroneously determine that interest was an appropriate measure of damages on the plaintiff’s unjust enrichment claim.  The plaintiff did not present evidence on a reasonable interest rate, and the link between the plaintiff’s loans and the company’s growth and profitability was attenuated.  Accordingly, the Court affirmed the Superior Court judgment.   
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13-312.pdf
  
4/19/2017 2:39 PMPerez, KimState v. Miguel Davis, No. 13-312 (February 5, 2016)
The defendant, Miguel Davis, appealed from a judgment of conviction entered after a jury trial in Providence County Superior Court.  The defendant was found guilty of three offenses, most notably murder in the first degree of Dominique Gay in violation of G.L. 1956 §§ 11-23-1 and 11-23-2.  Although police had reason to suspect Davis of the crime early in the investigation, the firearm used in the commission of the crime was never found and neither of the two eyewitnesses to the heinous event identified Davis as the shooter for two years or more.
  
The state’s case was premised on four issues: motive, eyewitness identification, access to firearms, and an alleged confession.  The first witness was the victim’s on-again-off-again girlfriend who testified that Davis had a motive for killing the victim because, after Davis briefly dated the victim’s girlfriend, Gay began to repeatedly confront and harass Davis with escalating hostility.  Next, one of the two eyewitnesses to the shooting testified that he saw the shooter in a disguise for an instant before the shots were fired and he fled the scene.  While he testified that he recognized the shooter that day, he did not identify Davis to the police until more than three years later, after Davis had already been arrested and seeing a video of him in court.  The second eyewitness did not testify at trial because he invoked his Fifth Amendment right against self-incrimination.  The third issue was presented by another ex-girlfriend of Davis’s who testified that she had taken Davis to her grandfather’s house on a couple of occasions where many firearms were kept.  Her aunt also testified to searching the grandfather’s house, after Davis had been there, and finding that a handgun was missing from under the bed, where her father insisted he had left it.  Finally, a purported friend of Davis’s testified that Davis had confessed to him that he killed Gay with the stolen gun, a fact that the witness divulged to police upon being interrogated as a suspect for an unrelated robbery.

After trial, the jury convicted Davis of first-degree murder of Gay, discharging a firearm while committing a crime of violence, and possession of a firearm without a license.  On appeal, the defendant argued that the judge erred in denying two of his requests for jury instructions, (1) that the jury disregard comments made by the prosecution in its opening statement regarding the second eyewitness who failed to testify, and (2) on the factors to consider when reviewing the reliability of eyewitness identifications.  The defendant also argued that the trial justice abused his discretion when he allowed prejudicial R.I. R. Evid. R. 404(b) evidence of the defendant’s alleged bad act of stealing firearms when the murder weapon was never found and the alleged stolen guns could not be connected to the murder.  Additionally, the defendant challenged the admission of an in-life photograph of the victim, his girlfriend, and their child, and finally the trial justice’s denial of his motion for a new trial.

On review, the Supreme Court affirmed the judgment of conviction.  Specifically, the Court found that the trial justice did not err in denying the defendant’s requests for jury instructions because (1) the prosecutor’s remarks were not so prejudicial that they required a curative instruction, and (2) the trial justice operated within his considerable discretion granted by this Court’s precedent concerning instructions on eyewitness identification testimony and, further, the Court was not persuaded to overturn such precedent because the litany of scientific and psychological studies presented to the Court on eyewitness testimony was not presented to the trial justice.  The Supreme Court additionally held that the defendant’s argument that prejudicial evidence about stolen guns was admitted in error was waived because, after motions in limine to suppress such evidence were denied, the defendant failed to object to the admission of the evidence during trial. Finally, the Court affirmed the trial justice’s denial of the defendant’s motion for a new trial because the trial justice properly 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.
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13-317.pdf
  
4/4/2017 11:53 AMPerez, KimGary Lemont v. Estate of Mary Della Ventura, No. 13-317 (April 4, 2017)
The plaintiff, Gary Lemont, appealed from a Superior Court judgment in favor of the defendant, the Estate of Mary Della Ventura.  The plaintiff filed a negligence suit after falling and sustaining injuries while on the defendant’s property; and, following a four-day trial, a jury returned a verdict finding the defendant to be 65 percent negligent.  The trial justice, however, subsequently granted the defendant’s motion for judgment as a matter of law and motion for a new trial on the grounds that the elements of the plaintiff’s negligence claim had not been established by the evidence adduced at trial.  On appeal, the Supreme Court agreed and affirmed the Superior Court order granting the defendant’s motion for judgment as a matter of law.
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13-321.pdf
  
6/24/2016 10:27 AMPerez, KimKenlin Properties, LLC et al. v. City of East Providence et al., No. 13-321 (June 23, 2016)
The Supreme Court granted a petition for writ of certiorari filed by the City of East Providence and the East Providence Zoning Board of Review (zoning board) (collectively, the city) seeking review of a judgment of the Superior Court.  The zoning board had affirmed a notice of violation issued by the East Providence zoning officer finding several violations of a use variance that had been granted in 1998 to the owner and operator of a facility known as Pond View Recycling (Pond View).  Kenlin Properties, LLC and TLA-Providence, LLC, as the owner and operator of Pond View, had appealed to the Superior Court from the zoning board’s decision upholding the notice of violation.  A trial justice of the Superior Court reversed the zoning board’s decision after concluding that the zoning board’s decision was clearly erroneous and made upon unlawful procedure because the zoning board erred as a matter of law by reviewing material outside of the decision granting the variance.

The Supreme Court held that the determination of the scope of a use variance is a question of fact entrusted in the first instance to the zoning board and that in determining the scope of a variance, the zoning board may refer to the entire public record.  The Supreme Court concluded that the record supported the zoning board’s decision that Pond View was in violation of the 1998 use variance by exceeding the scope of the variance.  Thus, the Supreme Court quashed the judgment of the Superior Court and remanded the case to the Superior Court with instructions to enter judgment for the city.
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