Supreme Court

Published Opinions 2010 - 2011 Term

Employers Mutual Casualty Co. v. Arbella Protection Insurance Co. et al., No. 09-330 (July 12, 2011)

The defendants appealed from the Superior Court’s grant of partial summary judgment in favor of the plaintiff. The Superior Court determined that the plaintiff did not owe a duty to defend or indemnify a certain insured party. On appeal, the defendants argued, inter alia, that genuine issues of material fact precluded the grant of summary judgment.

The Supreme Court ruled that genuine issues of material fact existed with respect to whether the plaintiff had a duty to defend or indemnify the insured, and it accordingly vacated the judgment of the Superior Court.

Wayne DeMarco et al v. Travelers Insurance Company et al, No. 08-334 (July 12, 2011)

The defendant insurance company appealed from the Superior Court’s grant of partial summary judgment in favor of the plaintiff. The plaintiff was seriously injured in a collision while traveling as a passenger in a motor vehicle owned and operated by the defendant’s insureds; another person in that vehicle was also seriously injured in the collision. The plaintiff obtained a judgment against the insureds in a personal injury action, which judgment far exceeded the insureds’ insurance policy limits; the plaintiff then brought suit against the defendant insurance company in reliance upon an assignment of rights from the insureds.

The Superior Court granted partial summary judgment in favor of the plaintiff with respect to the following two counts of his complaint: (1) the claim that the defendant should pay to the plaintiff the entire judgment amount entered in the personal injury action against the insureds pursuant to the Supreme Court’s 1999 decision in Asermely v. Allstate Insurance Co.; and (2) the claim that the defendant should pay interest on the entire judgment amount pursuant to a Rhode Island statute that is commonly referred to as the “rejected settlement offer statute.”

On appeal, the defendant challenged the Superior Court’s grant of summary judgment, arguing that the hearing justice erred for two primary reasons: (1) that the plaintiff’s release of the defendant’s insureds from liability and/or the existence of a “judgment satisfied order” in the underlying personal injury action extinguished any claim or rights against the defendant that might have been assigned to the plaintiff by the insureds; and (2) that the record contained facts on the basis of which a finder of fact could conclude that the defendant had acted reasonably and in its insureds’ best interests in handling the multiple claims that it faced with respect to the insurance policy proceeds, which claims in the aggregate exceeded the policy limits.

The Supreme Court vacated the grant of partial summary judgment in favor of the plaintiff. The Court first explicated its holding in Asermely as it should be applied with respect to the duty an insurer has to its insured when faced with multiple claims for insurance policy proceeds, which claims in the aggregate exceed the policy limits. The Court held that the case must be remanded for a fact-finder to determine whether the defendant met its duty under the explicated Asermely standard. The Court further held that the rejected settlement offer statute applied in cases involving a single plaintiff even where the insurer faced multiple claims that together exceeded the policy limits and that the statute should be applied on remand to the extent that the defendant is found to be liable to the plaintiff. The Court also held that the plaintiff’s release of the defendant’s insureds did not invalidate the assignment of rights to the plaintiff. The Supreme Court further ruled that the issue of the effect of the “judgment satisfied order” in the underlying personal injury action had not been litigated in the Superior Court and therefore was not properly before the Supreme Court at this time.

Accordingly, the Supreme Court remanded the case to the Superior Court for further proceedings consistent with its opinion.

Anthony DeCiantis v. State of Rhode Island, No. 08-156 (July 12, 2011)

The applicant appealed from a judgment of the Superior Court dismissing his application for postconviction relief. On appeal, the applicant contended that a hearing justice of the Superior Court erred by (1) mischaracterizing the applicant’s claim; (2) ruling that the state had no obligation to inform the then-defendant of a witness’s uncharged crimes; (3) determining that the state did not deliberately withhold exculpatory evidence; and (4) finding that no prosecutorial misconduct had occurred.

The Supreme Court ruled that the hearing justice had made a determination as to whether or not the state’s nondisclosures were deliberate and that that determination as well as the determination that no prosecutorial misconduct had occurred were proper. The Court also ruled that the applicant had failed to make the showing of materiality required to obtain a new trial.

Accordingly, the Court affirmed the judgment of the Superior Court.

North End Realty, LLC v. Thomas Mattos et al., No. 09-93 (July 8, 2011)

The plaintiff appealed from a judgment of the Superior Court entered in favor of the defendants (the finance director, town planner, and members of the town council of the Town of East Greenwich). The judgment denied the plaintiff’s motion for injunctive relief, in which it had requested that the defendants be enjoined from enforcing provisions that appear in several ordinances enacted by the town, which provisions require that certain developers, of which the plaintiff is one, pay a fee-in-lieu of undertaking the construction of affordable housing. On appeal, the plaintiff argued (1) that the town did not have the authority to impose the fee-in-lieu and (2) that the fee-in-lieu was an illegal tax which violated its rights under various provisions of the Rhode Island Constitution.

The Supreme Court, without deciding whether the fee-in-lieu constituted a fee or a tax, held that East Greenwich could not legally impose the fee-in-lieu provided for by its town ordinances in the absence of prior specific enabling legislation from the General Assembly. As a result, the Court determined that it was not necessary to reach the plaintiff’s other arguments. Accordingly, the Supreme Court vacated the judgment of the Superior Court.

State v. Mark Sampson, No. 08-311 (July 8, 2011)

The defendant appealed from a judgment of conviction for second degree child abuse after a bench trial in the Superior Court for Kent County. On appeal, the defendant contended that the trial justice erred in four respects.

The Supreme Court ruled that, because the defendant was not properly advised by the trial justice that the decision of whether or not to waive the jury was for a criminal defendant to make and was not his or her attorney’s decision to make, the defendant’s waiver of his right to counsel was not voluntary, knowing, and intelligent and that, therefore, he was entitled to a new trial. The Supreme Court also ruled that, since the statutory provision pursuant to which the defendant was charged contained the word “serious,” a finding as to same will have to be made at the conclusion of the defendant’s new trial on remand. Accordingly, the Supreme Court vacated the judgment of the Superior Court.

State v. Tracey Barros, No. 08-292 (July 8, 2011)

The defendant appealed from his conviction after a jury trial in the Superior Court for Providence County of the following offenses: conspiracy to commit murder; first degree murder; discharging a firearm while committing a crime of violence; and unlawfully carrying a firearm without a license. On appeal, the defendant challenged the denial of a motion to suppress his confession; and he also challenged a ruling by the trial justice which precluded defense counsel from cross-examining a prosecution witness regarding evidence which, in the defendant’s view, suggested that a person or persons other than the defendant may have committed the murder of which he was found guilty.

The Supreme Court sustained the trial justice’s denial of the defendant’s motion to suppress. The Court held that criminal defendants do not have a due process right to have their custodial interrogations electronically recorded in full. The Court also declined to impose such a mandate based on its supervisory authority, and the Court declined to require that a cautionary instruction accompany the introduction into evidence of incriminating statements made during interrogations that are not fully recorded. The Court also held that the trial justice’s findings of fact were not clearly erroneous, and it sustained the trial justice’s ultimate ruling that the defendant’s confession was voluntary and was not a product of police failure to promptly present him before a judicial officer.

With respect to the defendant’s desire to conduct cross-examination of a police officer who testified as a witness in the prosecution’s case in chief about possible third parties who allegedly may have committed the murder, the Court upheld the trial justice’s ruling barring such cross-examination due to the fact that the proposed evidence did not measure up to the well-established criteria relative to the admissibility of such evidence.

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

Harodite Industries, Inc. v. Warren Electric Corporation et al., No. 09-222 (July 6, 2011)

The plaintiff filed a petition for writ of certiorari, whereby it sought review of an order of the Superior Court denying the petitioner’s motion to amend its complaint. The Supreme Court granted that petition and also ordered the parties to address the issue of whether a Rhode Island or a Massachusetts statute of limitations would be applicable to the claims asserted by the petitioner in its proposed amended complaint.

The Supreme Court ruled that the Superior Court’s denial of the petitioner’s motion to amend its complaint was not an abuse of discretion. The Court further ruled that, pursuant to an application of the interest-weighing approach, a Rhode Island statute of limitations would apply to the claims asserted by the petitioner in its proposed amended complaint.

Fernando E. Nunes et al. v. Meadowbrook Development Co., Inc., Nos. 09-128, 10-402 (July 6, 2011)

On appeal, the plaintiffs contended that a hearing justice of the Superior Court erred in granting the defendant’s motion for summary judgment with respect to whether or not the plaintiffs were entitled to attorneys’ fees pursuant to the covenants contained in the warranty deed that the defendant had issued to the plaintiffs when the plaintiffs purchased a certain parcel of property from the defendant.

The Supreme Court ruled that the plaintiffs were not entitled to attorneys’ fees because they had successfully defended their title, the defendant not being able to establish an easement over the plaintiffs’ property. Accordingly, the Supreme Court held that the plaintiffs were not entitled to attorneys’ fees pursuant to the covenants in the warranty deed, and the Court affirmed the judgment of the Superior Court.

In re Review of Proposed Town of New Shoreham Project, No. 10-273 (July 1, 2011)

The petitioners, Toray Plastics (America), Inc. and Polytop Corporation, came before the Supreme Court pursuant to a statutory petition for a writ of certiorari, based on G.L. 1956 § 39-5-1, seeking our review of an amended power-purchase agreement (2010 PPA) between Narragansett Electric Company d/b/a National Grid (National Grid) and Deepwater Wind Block Island, LLC (Deepwater Wind). Per the 2010 PPA, Deepwater Wind agreed to construct a demonstration wind farm in state waters near Block Island and National Grid reciprocally agreed to purchase the electricity generated by the wind farm and apportion the entire cost of construction to in-state ratepayers over the course of the twenty-year contract. The petitioners, dissatisfied with National Grid’s above-market cost-distribution plan, challenged the Public Utilities Commission’s (the commission) approval of the 2010 PPA based on the statutory criteria outlined by G.L. 1956 § 39-26.1-7.

Among their particular quarrels, the petitioners attested that the commission’s majority applied an excessively deferential review to the 2010 PPA and was incorrectly indifferent to the 2010 PPA’s lack of mandatory provisions for constructing a transmission cable between Block Island and the mainland of the state. The petitioners also disagreed with the commission’s findings that the 2010 PPA is commercially reasonable, provides economic-development benefits and environmental benefits, and establishes a proper mechanism to distribute savings realized in the cost of construction, if any, to ratepayers. On each of the issues, the Supreme Court held that the petitioners’ arguments were unavailing. Accordingly, the Court affirmed the commission’s decision, quashed the writs of certiorari, and remanded the case to that tribunal.

In re Steven D. et al., No. 09-62 (June 29, 2011)

The respondents appealed from a Family Court decree terminating their parental rights with respect to their two children. On appeal, the respondents each contended that the trial justice erred in finding that the Rhode Island Department of Children, Youth and Families (DCYF) had shown by clear and convincing evidence: (1) that they were unfit parents; (2) that DCYF made reasonable efforts to reunify them with their children; and (3) that termination of parental rights was in the best interests of their children. The respondent mother advanced two additional arguments: (1) that the trial justice erred in admitting the results of a substance abuse screening test performed during the course of the Family Court trial; and (2) that the trial justice erred in denying her motion requesting the court to admit a particular psychiatric report into evidence or, in the alternative, to require the state to bear the cost of issuing a subpoena to the author of the report.

The Supreme Court vacated the Family Court decree with respect to both respondents. The Court first held that the trial justice erred in finding that DCYF had made reasonable efforts to reunify the respondent mother with her children. The Court determined that DCYF had not satisfied the reasonable efforts requirement where it failed to ensure that the respondent mother was offered or received substance abuse treatment or counseling services despite the fact that the department considered alcohol abuse to be a primary barrier to reunification.

The Court next held that the trial justice erred when he found parental unfitness with respect to the respondent father because, the Court held, DCYF had not shown unfitness by clear and convincing evidence. Finally, the Court opined that the trial justice erred in admitting the results of the substance abuse screening test over the respondent mother’s objection and without the necessary foundational testimony. Due to the fact that the Court vacated the decree of the Family Court on other grounds, it did not need to determine whether such admission was harmless error, nor was it required to reach the issue of whether the failure to admit the psychiatric report was erroneous.

State v. Ramondo Howard, No. 09-240 (June 29, 2011)

The defendant appealed from a judgment entered after an adjudication of probation violation.

The Supreme Court ruled that, after making certain comments from the bench, the hearing justice should have recused himself from further participation in the defendant’s case; the Court also held that he committed reversible error in not doing so. Accordingly, the Supreme Court vacated the judgment of the Superior Court.

Michael P. Trainor v. Paul Grieder, No. 09-362 (June 29, 2011)

The defendant appealed from the entry of three orders of the Superior Court that relate to the plaintiff’s attempt to recover his due pursuant to the judgment entered in his favor for injuries sustained as a result of an assault. On appeal, the defendant asserted (1) that the Superior Court lacked subject matter jurisdiction because there had been no return of an unsatisfied execution; (2) that jurisdiction procured by void process cannot be waived; and (3) that the defendant had already been unlawfully incarcerated in violation of his constitutional rights.

The Supreme Court affirmed the orders of the Superior Court. In doing so, the Court held that the defendant had unequivocally waived his arguments with respect to the return of the execution and that the defendant’s contention as to the Superior Court’s lack of subject matter jurisdiction was meritless. After having so ruled, the Court then noted that the defendant’s other two appellate arguments had not been properly briefed, and it accordingly declined to address them.

Narragansett Improvement Company et al v. Evelyn Wheeler et al, No. 09-88 (June 27, 2011)

Narragansett Improvement Company (Narragansett Improvement), one of three plaintiffs in the underlying action, appealed from a Superior Court judgment in favor of the defendants, members of the Rhode Island Advisory Commission on Historical Cemeteries (advisory commission). The judgment was entered pursuant to Rule 54(b) of the Superior Court Rules of Civil Procedure and emanated from an order granting the defendants' motion to dismiss certain counts of the plaintiffs' complaint. On appeal, Narragansett Improvement argued that the trial justice erred in dismissing these counts because the advisory commission exceeded its authority, under G.L. 1956 § 23-18.3-1, by "identifying" and "registering" certain features on the plaintiffs’ property, located in the Town of North Smithfield, as historical cemeteries and by notifying the town as to the same. Narragansett Improvement contended that the advisory commission's actions violated the plaintiffs' procedural and substantive due process rights under the Rhode Island Constitution. Narragansett Improvement also asserted that the trial justice erred by not recognizing a slander of title claim against the defendants.

The Supreme Court affirmed on all grounds. First, it affirmed the trial justice's dismissal of the plaintiffs’ procedural due process claim, reasoning that the plaintiffs did not have a constitutionally protected interest in the actions of the advisory commission, a purely advisory governmental body. The Court also affirmed the trial justice's dismissal of the plaintiffs' substantive due process claim. Finally, the Court affirmed the trial justice's dismissal of the plaintiffs' slander of title claim, reasoning that the North Smithfield Planning Board's denial of the plaintiffs' application for land development superseded the advisory commission’s actions as the cause of the plaintiffs' alleged pecuniary loss.

State v. Norman Cipriano, Jr. State v. Jamie Bryant, No. 09-56, 08-60 (June 27, 2011)

The defendants, Norman Cipriano, Jr., and Jamie Bryant, appealed from Superior Court judgments of conviction for receiving stolen goods and for conspiring to commit larceny.

On appeal, the defendants first argued that the trial justice erred in denying their motions for judgment of acquittal. The Supreme Court concurred with the trial justice’s conclusion that the evidence presented was sufficient to deny the motions for acquittal. The defendants next argued that the trial justice erred in his jury instructions concerning inferences and reasonable doubt. The Court held, however, that the trial justice did not err by refusing to issue a requested instruction concerning inferences, and that he did not err in his overall instructions concerning reasonable doubt. Mr. Cipriano additionally argued that the trial justice erred in refusing to pass the case after a witness testified to seeing Mr. Cipriano on a prison bus. The Court, however, found that the trial justice did not err by denying the motion to pass. Finally, Mr. Cipriano argued that the trial justice erred in denying his motion for a new trial, but the Court again found that the trial justice did not err in his denial.

Accordingly, the Court affirmed the judgments of the Superior Court.

Carmine J. D’Ellena v. The Town of East Greenwich, a Municipal Corporation and the East Greenwich Planning Board, No. 09-85 (June 24, 2011)

The plaintiff appealed from the Superior Court’s denial of declaratory relief concerning a requirement imposed by the East Greenwich Planning Board that the “Legacy Woods” development in that town be connected to a public water supply. On appeal, the plaintiff contended that the trial justice erred in a number of respects.

The Supreme Court ruled that the plaintiff had waived his right to challenge the decision of the planning board. Accordingly, the Supreme Court affirmed the judgment of the Superior Court.

Martin Malinou, Individually and as Executor of the Estate of Etta E. Malinou and as Executor of the Estate of Sheldon Malinou v. The Miriam Hospital et al., No. 09-87 (June 24, 2011)

The plaintiff, Martin Malinou, appealed pro se from a Superior Court entry of summary judgment in favor of the defendants, The Miriam Hospital, Steven M. Kempner, M.D., Jean Mary Siddall-Bensson, M.D., Lifespan Corporation, Coastal Medical, Inc., Johanna LaManna, R.N., Randall S. Pellish, M.D., Rhode Island Hospital, Evelyn Asante, R.N., Patricia Brown, R.N., and Michael Capicotto, M.D. (collectively defendants). In this wrongful death and medical negligence action that arose out of medical care provided to the plaintiff’s mother, the trial justice concluded that the plaintiff failed to raise any genuine issue of material fact on the elements of breach and causation.

On appeal, the plaintiff asserted the following arguments: (1) The Superior Court erred in precluding certain expert testimony; (2) The evidence established a genuine issue of material fact about whether the defendants breached the standard of care, thereby causing his mother’s death; (3) The doctrine of loss of chance established the element of causation; (4) A judicially determined standard of care that would not require the testimony of expert witnesses was appropriate in this case; (5) Viable causes of action existed for loss of society and companionship and for negligent infliction of emotional distress, as well as for filing a false death certificate; and (6) The trial justice erred in granting summary judgment in favor of Lifespan Corporation because it failed to maintain telephone records.

The Supreme Court affirmed the judgment of the Superior Court, holding that summary judgment properly was granted in favor of all the defendants. First, the Court reasoned that, notwithstanding the ample opportunity afforded to the plaintiff to produce his expert witnesses for depositions, the plaintiff nonetheless repeatedly failed to comply with numerous discovery orders, and therefore the Superior Court did not abuse its discretion by precluding certain witnesses from testifying at trial.

The Court next concluded that the plaintiff failed to present sufficient expert testimony to establish any deviation from an applicable standard of care, nor did he show how any alleged deviations from the applicable standard of care proximately caused his mother’s death. In addition, the Court declined to adopt a judicially determined standard of care that would disregard the need for expert testimony to establish the applicable standard of care and a breach of that standard. The Court further determined that, because the plaintiff failed to establish a genuine issue of material fact as to his underlying claims for medical negligence and wrongful death, the plaintiff therefore did not have a viable claim for negligent infliction of emotional distress or for loss of society and companionship, and that the doctrine of spoliation of evidence could not operate to bar the otherwise proper entry of summary judgment in favor of Lifespan Corporation. The Court also held that, even if it were to adopt the loss-of-chance doctrine, the doctrine would not have precluded the entry of summary judgment in favor of the defendants because the plaintiff failed to submit any competent evidence on the element of causation in support of his medical negligence claim. Finally, the Court concluded that the plaintiff failed to raise a genuine issue of material fact showing that a false death certificate had been filed.

Elton B. Randall, Jr. v. Deborah Randall, alias, Executrix of the Will of Esther A. Randall, alias, resident decedent of Warwick, Rhode Island, No. 09-229 (June 24, 2011)

The plaintiff appealed pro se from a judgment of the Superior Court dismissing the plaintiff’s de novo appeal from a Probate Court order. On appeal, the plaintiff argued that the defendant acted improperly with respect to a proposed sale of property from an estate and by not seeking Probate Court approval for a claim for reimbursement from the estate and for an alleged removal of funds from the estate.

After considering the record and the arguments of the parties, the Supreme Court ruled that the factual findings of the trial justice were not clearly erroneous, nor did the trial justice overlook or misconceive material evidence in determining that the plaintiff’s appeal should be dismissed. Accordingly, the Supreme Court affirmed the judgment of the Superior Court.

Barry E. DuBois et al v. Frederick Quilitsch et al., No. 09-372 (June 24, 2011)

The plaintiffs appealed from a Superior Court entry of summary judgment in favor of the defendants in a personal injury action resulting from a dog-bite incident. The Supreme Court determined that summary judgment was properly entered because the plaintiffs had failed to provide any evidence demonstrating that the defendants knew of the dog’s vicious propensities. Furthermore, the Court declined to modify the existing one-bite rule or expand liability in dog-bite cases that involve invitees. The Court accordingly affirmed the judgment of the Superior Court.

State v. Michael English, No. 10-42 (June 24, 2011)

The defendant, Michael English, appealed from a Superior Court judgment of conviction adjudicating him a violator of probation. On appeal, the defendant contended that the hearing justice erred in determining that he violated his probation by failing to adhere to the terms of a no-contact order because his contact with the complaining witness was merely coincidental and therefore insufficient to constitute a violation of probation. The Supreme Court concluded that the hearing justice adequately considered the evidence and properly weighed the credibility of the witnesses in determining that the defendant failed to keep the peace and remain on good behavior and that the defendant violated the no-contact order by engaging in contact that was more than mere coincidence. Thus, the Court determined that the hearing justice’s finding that the state’s evidence was reasonably satisfactory to support an adjudication of probation violation was neither arbitrary nor capricious. Accordingly, the Court affirmed the judgment of the Superior Court.

In re Last Will and Testament of John L. Quigley, No. 10-64 (June 24, 2011)

The appellant appealed pro se from an order of the Superior Court denying his motion to vacate a previous order of that court that had reformed the terms of a testamentary trust under which appellant was a beneficiary. On appeal, the appellant argued that the hearing justice erred in denying the motion to vacate pursuant to Rule 60(b)(4) of the Superior Court Rules of Civil Procedure because the order was "void" due to the fact that he did not receive a summons with respect to the proceeding which resulted in the order reforming the trust and, further, because the lack of notice violated his due process rights. The appellant also argued that the hearing justice should have vacated the order pursuant to Rule 60(b)(6) because other extraordinary or unusual factors existed which warranted relief. Finally, he argued that the order should have been vacated because he was allegedly "grossly misrepresented" by his attorney in connection with the proceeding that resulted in the order.

The Supreme Court ruled that the hearing justice did not err in denying the motion to vacate pursuant to Rule 60(b)(4) since a summons was not required due to the fact that the appellant was not a "defendant" in the proceeding with respect to the trust reformation, and the Court ruled that the appellant’s due process rights had not been violated because he had notice of the proceeding and had been represented by counsel at the proceeding. The Court also ruled that the hearing justice did not err in denying the appellant’s motion to vacate pursuant to Rule 60(b)(6) because the motion was not made within a reasonable period of time. Finally, the Court ruled that the appellant had waived his appellate contention that he was grossly misrepresented by counsel.

Accordingly, after having considered the appellant’s arguments on appeal, the Supreme Court affirmed the order of the Superior Court.

Arthur J. Toegemann v. City of Providence, No. 10-91 (June 24, 2011)

The plaintiff, Arthur J. Toegemann, appealed from a Superior Court entry of summary judgment in favor of the defendant, the City of Providence (the city). In this negligence action that arose out of the allegedly dangerous traffic conditions at an intersection where the plaintiff was involved in a motor vehicle accident, the hearing justice concluded that the plaintiff failed to raise a genuine issue of material fact sufficient to exempt this case from the public-duty doctrine. On appeal, the plaintiff argued that the hearing justice wrongfully applied the public-duty doctrine in granting summary judgment.

The Supreme Court affirmed the decision below in holding that the city’s placement of traffic-control devices was precisely the type of discretionary governmental activity that is shielded from tort liability under the public-duty doctrine. Further, the Court determined that the plaintiff failed to raise a genuine issue of material fact sufficient to constitute an exception to the public-duty doctrine.

Linda Pereira v. Kevin Fitzgerald, in his capacity as Treasurer of the City of East Providence, No. 10-168 (June 24, 2011)

The plaintiff appealed from a Superior Court entry of summary judgment in favor of the defendant in a personal injury action resulting from a fall in Kent Heights Park. The Supreme Court determined that summary judgment properly was entered because the defendant was shielded from liability by virtue of the Recreational Use Statute, G.L. 1956 chapter 6 of title 32. The Court explained that the limitation of liability afforded to property owners under the Recreational Use Statute extends to municipalities and that, at the time of the plaintiff’s injuries, the park was held open to the public for recreational activities. The Court accordingly affirmed the judgment of the Superior Court.

State v. John Ferreira, No. 09-172 (June 23, 2011)

The defendant, John Ferreira, was convicted of one count of first-degree child molestation (cunnilingus); one count of second-degree child molestation (mouth/breast contact); one count of second-degree child molestation (hand/breast contact); and one count of second-degree child molestation (hand/vagina contact). On appeal, he argued that the trial justice, in denying his motion for a new trial, (1) overlooked or misconceived significant inconsistencies in the state’s case; (2) wholly overlooked the context in which the complainant’s allegations occurred and the possible motives for fabricating her allegations; (3) overlooked the testimony of the six defense witnesses, including the testimony of the defendant himself; and (4) erred in basing her decision, in part, on matters not in evidence.

The Supreme Court affirmed the judgment of the Superior Court. It first held that the trial justice did not overlook or misconceive any material inconsistencies. The Court further held that the trial justice did not err by not explicitly articulating her rejection of the testimony of witnesses whom she did not find to be credible. The Court reasoned that by accepting the complainant’s testimony as credible, the trial justice impliedly rejected the conflicting testimony of the defendant and the other defense witnesses. Finally, the Court held that even though the trial justice, in her written decision denying the defendant’s motion for a new trial, referred to matters not in the record, such error was harmless because the referenced matters were cumulative and the defendant’s guilt was established by other competent evidence.

State v. Geonando Vargas, No. 09-304 (June 23, 2011)

The defendant, Geornando Vargas, was convicted of delivery of a controlled substance. On appeal, he argued that the trial justice erred by denying his motion for judgment of acquittal because the evidence presented by the state amounted to nothing more than an improper pyramiding of inferences and, therefore, was legally insufficient to support the defendant’s conviction. The defendant further argued that the trial justice erred by denying his motion for a new trial because the justice misconceived the testimony of one of the state’s witnesses.

The Supreme Court affirmed the judgment. In affirming the trial justice’s denial of the defendant’s motion for judgment of acquittal, the Court held that, despite the fact that the state did not present any direct evidence of the defendant actually delivering a controlled substance, it nevertheless presented sufficient circumstantial evidence from which a reasonable juror could infer beyond a reasonable doubt that the defendant unlawfully made a cocaine delivery. The Court rejected the defendant’s “pyramiding-of-inferences” argument and held that the state established a pattern of corroborating circumstances that was sufficient to justify a finding of guilt. The Court also affirmed the trial justice’s denial of the defendant’s motion for a new trial, holding that the trial justice did not misconceive the evidence in this case.

Deborah M. Dawkins v. David M. Siwicki, M.D., No. 08-18 (June 17, 2011)

Deborah M. Dawkins, the plaintiff, appeals from a jury verdict and final judgment in favor of the defendant, David M. Siwicki, M.D., after a jury found that he was not negligent in his diagnosis and treatment of her scaphoid bone fracture. On appeal, she asserted a number of pretrial, trial and post-verdict errors, many of which centered around the evidence of the plaintiff’s smoking—as it related to the defendant’s defense of comparative negligence. After addressing each of the plaintiff’s arguments, the Court ultimately held that her appellate contentions either had not been properly preserved or did not have merit. The Court affirmed the judgment of the Superior Court.

State v. Nicholas Gianquitti, No. 10-8 (June 17, 2011)

Nicholas Gianquitti (Gianquitti) was convicted of second-degree murder and using a firearm while committing a crime of violence in the Providence County Superior Court. Gianquitti appealed to the Supreme Court, contending that the trial justice erred (1) by refusing to instruct the jury in accordance with G.L. 1956 § 11-8-8, and denying his subsequent motion for a new trial on the same basis; and (2) by excluding expert testimony.

The Supreme Court held that no breaking and entering occurred, and thus Gianquitti could not avail himself of the jury instruction set forth in § 11-8-8. As to the exclusion of expert opinion testimony, the Court held that the issue was not properly preserved for appellate review. However, even if it were preserved, the Court held that the trial justice did not abuse his discretion in excluding the expert opinion testimony.

The Shelter Harbor Conservation Society, Inc. v. Charles A. Rogers et al., No. 10-16 (June 17, 2011)

The plaintiff appealed from a Superior Court grant of summary judgment in favor of the defendants and argued that genuine issues of material fact remained about the interpretation of a plat map depicting the defendants’ property in Westerly. The plaintiff argued that the defendants owned just one 30,000-square-foot lot and therefore could not build three single-family residences on the property, while the defendants argued that they owned three 10,000-square-foot lots. According to the plaintiff, the map, which showed three bounded lots inscribed with four numbers each from one to twelve, indicated that the property in question originally consisted of twelve lots, which merged into one lot when they came into common ownership under the merger provision of the Town of Westerly Zoning Ordinance. However, the defendants argued that the lots were excepted from the merger ordinance because the map depicted three lots that exceeded the least-restrictive lot size as defined in the zoning ordinance and thus were protected by the zoning ordinance’s exception to the merger provision.

After the defendants filed a motion for summary judgment, the plaintiff sought to depose the defendants, their attorney, and town officials. They sought information on the issue of merger and an issue regarding common ownership of the property. The trial justice first addressed the potentially dispositive issue of the application of the merger ordinance and thus stayed the notices of depositions sent to the defendants and their attorney while permitting the plaintiff to obtain discovery from Westerly on the issue of merger. She found that as a matter of law, the map showed three 10,000-square-foot lots that fell within the exception to the merger provision and granted summary judgment in favor of the defendants.

On appeal, the plaintiff argued that the trial justice erred because she resolved a disputed issue of material fact when she concluded that the map depicted the defendants’ property as three separate 10,000-square-foot lots instead of twelve 2,500-square-foot lots. Specifically, the plaintiff argued that the evidence concerning the proper interpretation of the map was “conflicting” and these disputed facts should have been resolved in a trial on the merits. Second, the plaintiff contended that the trial justice erred when she prevented the plaintiff from taking discovery from the defendants and their attorney.

The Supreme Court held that the trial justice properly looked solely to the map itself and determined that it depicted three 10,000-square-foot lots. The Court noted that the property was bounded by solid lines into three lots, not twelve smaller lots as was accomplished elsewhere on the map. Therefore, the Court agreed that the exception to the merger provision applied to these three lots. The Court also held that the trial justice did not abuse her discretion when she stayed the notices of deposition because the depositions of the defendants and their attorney were not intended to obtain information relevant to the application of the merger provision, which she addressed first and which could, and did, render consideration of the other issues raised in the case unnecessary. Accordingly, the Court affirmed the judgment of the Superior Court.

State v. James Enos, No. 10-54 (June 17, 2011)

James Enos appealed to the Supreme Court after a conviction for one count of domestic assault with a dangerous weapon in violation of G.L. 1956 § 11-5-2 and G.L. 1956 § 12-29-5. Before the Court, the defendant pressed two arguments. First, he contended that the evidence presented by the state was legally insufficient for a reasonable juror to conclude that he and the complaining witness, Mary, were in a domestic relationship, and thus that the trial justice erred when she denied Mr. Enos’s motion for acquittal under Rule 29 of the Superior Court Rules of Criminal Procedure. Second, he argued that the trial justice erred when she refused to declare a mistrial after a police officer testified that after the defendant was informed of his Miranda rights, he declined to provide information about the incident to the police. The Supreme Court affirmed the judgment of conviction.

The Court agreed with the trial justice’s conclusion that the evidence, overall, suggested Mr. Enos and Mary were in a substantive dating relationship. The Court noted that it was convinced that the trial justice viewed the evidence in the light most favorable to the state, as was her task, and correctly denied the defendant’s motion for a judgment of acquittal. Further, the Court held that, despite a witness’s inappropriate comment on the defendant’s silence after being given Miranda warnings, the trial justice was not clearly wrong when she denied the defendant’s motion for a mistrial and instead opted to instruct the jury to disregard the errant remark.

Kathy Lamarque et al v. Centreville Savings Bank, No. 10-67 (June 17, 2011)

The plaintiff, Kathy Lamarque (Lamarque), appealed from a judgment in favor of the defendant, Centreville Savings Bank (Centreville). Lamarque, who had had a mortgage with Centreville, filed suit after Centreville allegedly disclosed the balance of the loan to a third party. Lamarque asserted that this alleged disclosure amounted to a privacy violation and a breach of the bank’s duty to her. The trial court found that Lamarque had failed to establish that the disclosure occurred and even if it had, that such a disclosure did not constitute a privacy violation or negligent activity. On appeal, this Court affirmed the trial court’s judgment.

City of Providence v. John Doe et al., 10-94 (June 17, 2011)

On September 9, 2009, the plaintiff, City of Providence, filed a verified complaint with the Superior Court in Providence County against John Doe et al. and Jane Doe et al., the unknown defendants, alleging “trespassing on certain City owned land” in the form of an encampment and seeking “temporary, preliminary and permanent injunctive relief * * *.” The complaint sought to enjoin the defendants “or any persons associated therewith, from camping, living, occupying, using or otherwise trespassing upon City owned property, and specifically, the Property of Pleasant Valley Parkway.” After hearing testimony, a justice of the Superior Court, in a written order, granted the plaintiff’s motion for a preliminary injunction. That order enjoined the defendants “from camping, living, occupying, using or otherwise trespassing upon city property and more specifically, the property commonly referred to as Pleasant Valley Parkway.”

The defendants appealed the grant of the plaintiff’s motion for a preliminary injunction on three distinct grounds. First, they asserted that the Superior Court improperly denied their motion for dismiss for lack of subject-matter jurisdiction. Second, the defendants argued that because other remedies at law may exist, the grant of the extraordinary remedy of equitable relief was inappropriate. And third, the defendants contended that the preliminary injunction must fail for indefiniteness because it applies only to unknown persons and therefore is unenforceable at a contempt proceeding. The Supreme Court affirmed the Superior Court and held (1) that the Superior Court had subject-matter jurisdiction over the merits of the plaintiff’s request for injunctive relief; (2) that the trial justice did not abuse his discretion when he determined that injunctive relief was the appropriate remedy; and (3) that the terms of the order issued by the hearing justice speak for themselves and are sufficiently specific “to enable one reading the injunctive order to understand therefrom what he [or she] may not do thereunder.”

State v. Viroth Phannavong, No. 10-256 (June 17, 2011)

Viroth Phannavong (defendant or Phannavong) was convicted of three counts of child molestation—one first degree and two second degree—against his former girlfriend’s daughter. On the first-degree count, Phannavong was sentenced to forty years at the Adult Correctional Institutions, with twenty years to serve, and on the second-degree counts, he was sentenced to ten years to serve, all sentences to run concurrently. On appeal, the defendant contended that the trial justice erred (1) by refusing to admit into evidence a map of the City of Woonsocket, and (2) by denying his motion for a new trial.

The Supreme Court affirmed the judgment of conviction. It held that the trial justice did not abuse his discretion by excluding the map because its reliability was not established, nor did he err in denying the defendant’s motion for a new trial because he conducted a thorough review of the credibility of the witnesses and the weight of the evidence to support the verdict.

State v. Edgar Goulet, No. 09-140 (June 16, 2011)

On May 1, 2006, the defendant, Edgar Goulet, apparently exasperated that his dog, Sparky, would not listen to him, used a .22-caliber rifle to kill the animal. The discharge of the rifle resulted in a 911 call placed by the defendant’s neighbor. The subsequent response and investigation by the South Kingstown Police Department resulted in the unearthing of Sparky’s corpse from a shallow grave located next to a small backhoe excavator and the discovery of an illegal, sawed-off shotgun. The defendant was charged and ultimately convicted by a jury on one count of malicious killing of an animal under G.L. 1956 § 4-1-5 and one count of possession of a sawed-off shotgun in violation of G.L. 1956 § 11-47-8(b). The defendant appealed, alleging numerous errors by the trial justice—including (1) an improper denial of relief from prejudicial joinder pursuant to Rule 14 of the Superior Court Rules of Criminal Procedure and (2) the failure to suppress evidence seized in the course of Fourth Amendment violations; additional issues raised in the appeal were deemed waived or not preserved.

The Supreme Court affirmed the judgment of the Superior Court. In doing so, the Court held that the defendant’s showing of need for relief from prejudicial joinder was insufficient and that the trial justice did not abuse his discretion when he denied the defendant’s motion to sever the two counts. Additionally, the Court held that an initial, limited search of the defendant’s property was permissible under the emergency doctrine and plain-view exceptions to the Fourth Amendment’s warrant requirement. As such, the Court reasoned that the defendant’s Fourth Amendment arguments about the propriety of the warrantless search were without merit and evidence later seized during a warrant search was not subject to exclusion under the fruit of the poisonous tree doctrine.

RBS Citizens Bank, N.A. v. Howard F. Issler. Kimberly Issler (Intervenor)., No. 09-356 (June 16, 2011)

The intervenor appealed from an order of the Superior Court granting a “motion to charge garnishee” made by the plaintiff bank. On appeal, the intervenor contended that the hearing justice erred in permitting the plaintiff to attach funds in a particular bank account in order to satisfy a judgment that the plaintiff had obtained against the intervenor’s estranged husband, where the funds in that particular account allegedly belonged to the intervenor alone.

The Supreme Court ruled that, based on the Court’s precedent, the plaintiff bank acted legally in setting off the funds at issue. Accordingly, after having considered the intervenor’s arguments on appeal, the Supreme Court affirmed the order of the Superior Court.

State v. Raymond Staffier, No. 09-204 (June 15, 2011)

This case came before the Supreme Court after the defendant, Raymond Staffier (Staffier), was found not guilty of one count of second-degree child molestation and guilty of three counts of second-degree child molestation. Staffier appealed the judgment of conviction and made two appellate contentions before the Court. First, he argued that the trial justice erred when she denied his motion for a new trial, arguing that the inconsistent verdicts failed to do substantial justice. He also argued that the trial justice erred because she allowed the state to present a rebuttal witness who had been present during the defense’s case, despite the trial justice’s having previously entered a sequestration order.

The Supreme Court affirmed the judgment of conviction, according great deference to the trial justice’s denial of Staffier’s motion for a new trial and deeming that the trial justice had not abused her discretion with respect to allowing the state to present its rebuttal witness.

In re Destiney L. et al., No. 08-338 (June 14, 2011)

The respondent-mother, Shakiyyah L., appealed from a Family Court decree terminating her parental rights to two children, ShaHeim L. and Destiney L. The Department of Children, Youth, and Families (DCYF) became involved with this family after Shakiyyah delivered a stillborn boy. While she was hospitalized, testing revealed cocaine and opiates in Shakiyyah’s system. DCYF identified a number of issues that Shakiyyah would have to address before she could be reunified with her children. The identified issues included (1) substance abuse, (2) reported depression and mental health issues, (3) a cognitive assessment, (4) a parenting assessment, (5) a parent/child evaluation, and (6) visitation; but the most prominent of those issues was her substance abuse.

The trial justice subsequently terminated Shakiyyah’s parental rights on a ground of chronic substance abuse. On appeal, Shakiyyah advanced two arguments: First, that DCYF failed to make reasonable efforts to “encourage and strengthen the parental relationship.” Specifically, Shakiyyah argued that DCYF did not provide referrals for several problems that were identified as barriers to reunification in her case plans. Second, Shakiyyah argued that the trial justice erred in finding that she had a chronic substance-abuse problem because she successfully completed a substance-abuse treatment program, albeit after the termination petitions were filed.

The Supreme Court affirmed the decree of the Family Court. In doing so, it concluded that the trial justice had not clearly erred when she determined that Shakiyyah had a chronic substance abuse problem that resulted in the placement of her children with DCYF for more than twelve years.

Timothy S. Barrow et al. v. D&B Valley Associates, LLC, No. 10-108 (June 10, 2011)

Timothy and Barbara Barrow filed suit in the Superior Court to quiet title to a strip of land of which D&B Valley Associates, LLC was the record owner. The Barrows claimed title through adverse possession, or in the alternative, through boundary by acquiescence. The trial justice concluded that they had failed to show either and entered judgment in favor of the defendant. The Barrows appealed.

In 1988, the Barrows purchased property in Middletown from Herbert and Claire Weida. The Weidas previously had received permission from their neighbor, Mr. Dunn of D&B Valley Associates, to use a portion of D&B Valley Associates property. The central question facing the Court on appeal is whether the permissive nature of the use ended when the owner of the dominant parcel, the Weidas, conveyed their property to the Barrows. The Court held that it did not. Applying the rule from Hilley v. Lawrence, 972 A.2d 643 (R.I. 2009), the Supreme Court held that just as a permissive use cannot ripen into a prescriptive easement, a use that is originally permissive cannot ripen into a claim for adverse possession absent any new hostile act. Because the Weidas had permission from Mr. Dunn to make use of the strip of land between the two lots, the permissive nature of that use could only become hostile when that permission was withdrawn or when the nature of the use changed. Neither of those events occurred here. The Supreme Court affirmed the judgment of the trial court.

State v. Shianna Kelly, No. 09-247 (June 10, 2011)

The defendant, Shianna Kelly, appealed from a Superior Court judgment of conviction for entering a dwelling with the intent to commit larceny. On appeal, the defendant argued that the trial justice erred in denying her motion for a new trial. The Supreme Court noted that the trial justice had articulated explicit and adequate rationale for denying the defendant’s motion, and held that the trial justice did not clearly err in denying such. The Court accordingly affirmed the judgment of the Superior Court.

The Narragansett Electric Company v. Michael R. Minardi, in his capacity as the Tax Assessor for the Town of Barrington et al., No. 09-232 (June 9, 2011)

The Narragansett Electric Company (Narragansett or plaintiff), appealed from the dismissal of its suit against thirty-four Rhode Island municipalities (municipalities or defendants), in the Providence County Superior Court. The Superior Court found it was without subject-matter jurisdiction because the plaintiff “neither filed a timely appeal under § 44-5-26, nor invoked the [c]ourt’s equitable jurisdiction under § 44-5-27.” On appeal, the plaintiff contended that the trial justice erred by granting the defendants’ motions to dismiss, because: (1) G.L. 1956 §§ 44-5-26 and 44-5-27 allows taxpayers alleging an illegal tax to appeal directly to the Superior Court; (2) the petition for a declaratory judgment is an independent, ripe, and justiciable action brought appropriately under the Uniform Declaratory Judgments Act; and (3) it is futile for the plaintiff to appear before the local tax assessors and boards of review because they lack the authority to resolve the issue.

The Supreme Court held that Narragansett failed to establish that it had been assessed an illegal tax, and thus could not avail itself of the direct appeal to the Superior Court set forth in § 44-5-27.

Kingston Hill Academy and The Compass School v. Chariho Regional School District, No. 10-362 (June 6, 2011)

The petitioner, the Chariho Regional School District (Chariho) sought review of the decision of the board of regents for elementary and secondary education by way of a writ of certiorari. The Supreme Court granted the petition for a writ. The respondents, Kingston Hill Academy and The Compass School (the charter schools), originally requested a hearing before the department of elementary and secondary education about Chariho’s nonpayment of its share of the charter schools’ operating costs. When the commissioner ruled in Chariho’s favor, the charter schools appealed to the board of regents for elementary and secondary education, and Chariho filed a cross-appeal seeking review of the severance issue. The board affirmed the commissioner of the department of elementary and secondary education’s decision to treat its affirmative defense of unclean hands as a counterclaim but reversed the commissioner’s determination that Chariho was required to remit payments to the charter schools for students attending the schools from its district as of the “reference year” as opposed to actual enrollment at the charter schools each quarter.

In its memoranda submitted to the Court, Chariho sought review of three issues: (1) whether the commissioner and board properly severed its affirmative defense without holding a hearing on whether the respondents violated G.L. 1956 § 42-87-3 by discriminating against children with disabilities; (2) whether the board misconstrued G.L. 1956 § 16-77.1-2 by ordering Chariho to pay tuition for students at the charter schools based on actual enrollment; and (3) whether the commissioner erred by not affording Chariho notice and a hearing with regard to the calculation of the exact amount of tuition that Chariho allegedly owed.

First, the Supreme Court held that the board properly treated the petitioner’s “affirmative defense” as a counterclaim and severed it for a future proceeding because the respondents did not acquire their right to local-district payments by engaging in the alleged discrimination. Second, the Court held that the statute in question providing for the manner in which the local-district payments are made to the charter schools was ambiguous. Therefore, it afforded the board’s interpretation of the statute deference. The Court held that the board’s interpretation of the statute to require that local districts make payments based on actual enrollment at the charter schools each quarter was neither clearly erroneous nor unauthorized. Third, the Court declined to address Chariho’s argument that it is entitled to a hearing on the issue of calculating a specific amount of tuition owed for specification of a dollar amount because it did not raise this issue in its petition for a writ of certiorari. Accordingly, the Court affirmed the decision of the board.

Duane Horton v. Portsmouth Police Department et al., No. 10-111 (June 6, 2011)

The plaintiff, Duane Horton (Horton or plaintiff), appealed from a grant of summary judgment in favor of the Portsmouth Police Department and various officials (defendants) on each count of his thirteen-count complaint. He alleged five counts of malicious prosecution relating to his arrests on or about July 24, 2004 (count 1); January 23, 2006 (count 2); February 6, 2006 (count 3); February 9, 2006 (count 4); and July 17, 2006 (count 8). The plaintiff also raised one count of malicious prosecution for his incarceration from February 9, 2006, until February 14, 2006 (count 5). He alleged one count of false arrest for his arrest on February 9, 2006 (count 6) and one count of false imprisonment for his incarceration from February 9, 2006 until February 14, 2006 (count 7). The remaining counts alleged one count of tortious denial of access to public records (count 9), civil-rights violations (counts 10 and 11), failure to properly destroy records after exoneration (count 12), and illegal retention of records of identification (count 13).

The motion justice granted the motion for summary judgment as to counts 1, 2, 3, 4, and 8 on the grounds that the defendants possessed probable cause to arrest in each instance considering the heavy burden that the plaintiff bore to prove otherwise because each arrest was carried out based on a warrant. On appeal, the plaintiff argued that summary judgment improperly was granted because the defendants in each instance lacked probable cause to arrest and prosecute him for various offenses, including violations of a no-contact order, breaking and entering, trespass, and vandalism.

The Supreme Court held that the plaintiff had not sustained his burden to show that the defendants acted without probable cause, and as an element of his claims of malicious prosecution, these claims must fail. The Court noted that because it held that the defendants possessed the requisite probable cause to arrest and prosecute, it followed that the plaintiff’s false-imprisonment and civil-rights claims must fail because they depend on a want of probable cause. The Court also deemed the plaintiff’s remaining claims of tortious denial of access to public records; civil-rights violations; failure to properly destroy records after exoneration; and illegal retention of records of identification waived because they were not briefed adequately to allow for meaningful review. Accordingly, the Court affirmed the judgment of the Superior Court.

Geraldine C. Sloat v. The City of Newport by and through its Director of Finance, Laura Sitrin et al., No. 10-160 (May 27, 2011)

The defendant, the City of Newport (Newport or the city) appealed from a Superior Court judgment granting Geraldine C. Sloat’s (plaintiff or Sloat) petition to vacate the summary judgment entered in favor of Newport. Sloat filed a complaint against Newport and the state, claiming negligence in maintenance of a sidewalk in Newport, on which she allegedly tripped and injured herself. Both the state and Newport filed answers to the complaint, denying responsibility for maintaining the sidewalk in question. Although the state erroneously filed its answer in the wrong county, it provided the plaintiff with a copy in January 2005. Newport then moved for summary judgment, which was heard in November 2005. Neither the plaintiff nor the state objected to the city’s motion for summary judgment, which was granted. Subsequently, the state filed its own motion for summary judgment, arguing that it was not liable to the plaintiff because it was not responsible for maintenance of the sidewalk on which she allegedly injured herself. The state’s motion for summary judgment was denied.

In response to the state’s denial of responsibility for maintenance of the sidewalk in Newport, the plaintiff filed a petition to vacate the summary judgment entered in favor of Newport years earlier. She argued that she was entitled to relief because Newport had not served the state with a copy of its motion for summary judgment and deprived the state of the opportunity to present its argument that it was not responsible for maintenance of the sidewalk at the time of the hearing on Newport’s motion. In its objection to the plaintiff’s petition to vacate, Newport argued that she was not entitled to relief because the plaintiff did not exercise due diligence in verifying the city’s claims and objecting to its motion for summary judgment.

The hearing justice concluded that “[a]t the time of [Newport’s] motion for summary judgment[,] [the] [p]laintiff was justifiably under the impression that the [s]tate did not dispute responsibility for the sidewalk maintenance as the [s]tate filed no objection to [Newport’s] motion.” Because Newport did not provide the state with a copy of its motion, “the delay in discovering the evidence * * * was not caused by the fault or negligence of [Sloat].” Therefore, she granted the plaintiff’s petition to vacate the judgment entered in favor of Newport.

The Supreme Court held that the state’s answer established that an impression that the state was conceding responsibility for sidewalk maintenance, which the hearing justice found justifiable on Sloat’s part, in fact, would not have been justified. The Court explained that Sloat was required to exercise diligence to verify the city’s contentions, and her failure to do so in the face of the state’s unequivocal denial of responsibility for maintenance of the sidewalk where she alleged to have fallen was fatal to her independent action in equity to vacate the summary judgment granted in favor of Newport. Accordingly, it vacated the judgment of the Superior Court.

Generation Realty, LLC et al. v. Kristen J. Cantazaro et al. DePasquale Brothers, Inc., No. 09-165 (May 27, 2011)

The defendants, the Town of North Providence and its representatives, appealed from a Superior Court grant of summary judgment in favor of the plaintiffs, Capital City Community Centers, Inc. and Generation Realty, LLC, the owner and prospective purchaser of property in North Providence, respectively. This appeal required the Supreme Court to interpret G.L. 1956 § 45-24-53, the notice provision of the Rhode Island Zoning Enabling Act. Specifically, the Court was asked to decide whether North Providence provided adequate notice to the plaintiffs when it amended its zoning ordinance in 1999. The plaintiffs argued, and the hearing justice agreed, that the 1999 amendments included specific changes, which, under § 45-24-53(c), required personal written notice. According to the plaintiffs, because the defendants provided only public notice, the 1999 amendments were null and void as they applied to the plaintiffs. The defendants argued that the amendments were general and thus, under § 45-24-53(b), required only public notice.

The Court vacated and reversed the judgment of the Superior Court. After reviewing § 45-24-53 de novo, the Court held that public notice of the 1999 amendments was adequate. It noted that it is a fundamental rule of construction that an ordinance, much like a statute, must be considered in its entirety, not as if each section were independent of all other sections. The Court then reviewed the 1999 amendments in their entirety and concluded that their extensive nature rendered them general rather than specific.

State v. Gerald Lynch, No. 07-81 (May 26, 2011) Amended

The defendant, Gerald Lynch, appealed to the Supreme Court from a conviction of four counts of first-degree sexual assault, for which he was sentenced to twenty years at the Adult Correctional Institutions, ten years to serve, on each count, with the sentences to run concurrently. On appeal, he had four arguments: (1) the trial justice erred in denying his motions for acquittal and for a new trial because the state failed to prove beyond a reasonable doubt that the defendant used force or coercion, a necessary element of first-degree sexual assault; (2) it was error for the trial justice to admit evidence of the complainant’s size and age as compared to the defendant’s; (3) the trial justice erred when it instructed the jury concerning the defense of consent; and (4) the trial justice erred in allowing in testimony about the effects of the sexual assaults on the complainant. The Court held that there had been no error at the trial level and affirmed the convictions on all counts.

State v. Memeh Kizehai, No. 09-211 (May 19, 2011)

The defendant, Memeh Kizekai (defendant), appealed from his conviction for uttering and publishing a "bad check" in a violation of G.L. 1956 § 11-17-1. The defendant contended that the trial justice erred by denying his motion for a new trial because, as the defendant maintained, the testimony of a state witness was not credible, and the state failed to present sufficient evidence to support his conviction. The Supreme Court summarily disposed of the defendant’s assertions of error.

Based the evidence in the record and the deferential standards with which the Court reviews a trial justice’s denial of motion for a new trial and assessment of witness credibility, the Court concluded that the trial justice did not overlook or misconceive material and relevant evidence or commit clear error by crediting the testimony of the state’s witness. The Court also disagreed with the defendant that by not offering the testimony of a handwriting expert, the state failed to present sufficient evidence to support the defendant’s conviction. On this claim of error, the Court explained that the crime of uttering and publishing does not require proof that the defendant created the falsified negotiable instrument and therefore, the state was not compelled to present evidence showing that the handwriting on the check actually belonged to the defendant.

Accordingly, the Court affirmed the judgment of the Superior Court.

Jose Torres v. State of Rhode Island, No. 09-347 (May 19, 2011)

The applicant, Jose Torres (applicant), appealed from the denial of his application for postconviction relief in Superior Court. The applicant was accused of selling heroin to an individual who later provided the drug to a third party who subsequently overdosed and died. Based on a theory of felony murder, G.L. 1956 § 11-23-1, the applicant was charged with the murder of the individual who overdosed. Instead of facing trial, the applicant pled guilty to an amended charge of manslaughter along with three other drug crimes. He then filed an application for postconviction relief, arguing that his original criminal indictment wrongly charged him with murder because, in his assessment, indirect distribution drug crimes cannot form the predicate basis for felony murder in Rhode Island. Although he ultimately pled guilty to a lesser charge, the applicant argued that his conviction still should be vacated because of the allegedly flawed indictment. This defect, he argued, could not be waived by his plea. The trial justice denied his application, and the applicant appealed, seeking the Supreme Court’s review of his postconviction-relief question of law.

The Supreme Court first established that a voluntarily given guilty plea waives all challenges to pre-plea constitutional violations, but does not waive challenges that the indictment failed to state a claim or failed to show jurisdiction of the court. However, the Court then determined that the applicant’s quarrel with the indictment raised neither of these exceptions. Rather, the applicant was challenging the sufficiency of the evidence against him and whether the state actually could prove the murder charge based on a felony-murder theory. The Court noted that Rhode Island’s murder statute expressly permits drug-distribution crimes to form the predicate basis for felony murder. As such, the Court held that the indictment articulated a valid crime and by voluntarily pleading guilty to a charge amended with his consent, Torres waived any argument that the state could not have proven him guilty of this offense. 

Accordingly, the Court affirmed the judgment of the Superior Court.

Virginia Sharkey v. George M. Prescott et al, No. 09-316 (May 16, 2011)

The plaintiff appealed from a Superior Court judgment granting the motion of the defendant for summary judgment and dismissing the plaintiff’s action alleging legal malpractice on the ground that it was filed beyond the relevant three-year statute of limitations. The plaintiff alleged in her complaint that the defendant committed legal malpractice when he counseled her and her husband to convey two parcels of real estate to themselves as trustees of the trust that he drafted for them. The plaintiff also alleged that the defendant committed legal malpractice when he drafted the trust so as to prevent her from accessing the principal of the residuary trust. She argued that under the discovery-rule exception her complaint was not time-barred because the incidents of legal malpractice were not discoverable in the exercise of reasonable diligence at the time they occurred, and because she discovered the defendant’s alleged legal malpractice in the exercise thereof within three years of the filing of the complaint. The trial justice ruled that the plaintiff had not demonstrated that the discovery rule applied and thus her allegations of legal malpractice were time-barred. Accordingly, she granted the defendant’s motion for summary judgment on both counts.

On appeal, the plaintiff argued before the Court that the trial justice erred when she granted the defendant’s motion for summary judgment because there were outstanding issues of material fact that rendered summary judgment inappropriate. The Court held that the trial justice did err when she granted summary judgment on the plaintiff’s claim that the defendant committed legal malpractice when he allegedly advised the plaintiff that the achievement of her and her husband’s estate plan required them to deed two parcels of real estate to themselves as trustees, which caused the lots to merge. The Court reasoned that the discovery-rule exception was applicable to this allegation because it was a latent error that was not discoverable in the exercise of reasonable diligence at the time the alleged malpractice occurred because, although the plaintiff was aware of that the lots would merge, she was not aware that another option was available to her until a later date. However, the Court also held that issues of material fact remained as to when the plaintiff discovered that a potential claim existed, the resolution of which would reveal whether the plaintiff’s claim of legal malpractice was time barred, and therefore, summary judgment was inappropriate as to this claim. 

Finally, the Court held that the trial justice did not err when she granted summary judgment on the plaintiff’s allegation that the defendant committed legal malpractice when he drafted the trust so as to prevent the surviving spouse from accessing the principal of the residuary trust because this was not a latent error and a reasonable person would have been on notice of a potential claim of legal malpractice after reading a trust that contained a provision directly contrary to his or her attested desires at the time of execution. Accordingly, the Court affirmed the judgment in part and vacated it in part. The case was remanded to the Superior Court for further proceedings not inconsistent with the opinion.

Veronica Coates v. Ocean State Jobbers, Inc., No. 08-140 (May 13, 2011)

The plaintiff appealed prose from a Superior Court denial of her motion for a continuance and the dismissal of her complaint against the defendant. The plaintiff contended that her motion for a continuance should have been granted because the defendant refused to provide her with the documents she needed to try her case, and because of her physical disabilities. The plaintiff also argued that dismissal of her complaint was in error because she appealed the denial of her motion for a continuance and requested a stay of trial.

The Supreme Court affirmed the judgment of the SuperiorCourt. First, it affirmed the trial justice’s denial of the plaintiff’s motion for a continuance, reasoning that there was no good cause for the plaintiff to wait until trial was imminent to request, from the defendant, documents that could have been requested much earlier in the litigation process. The Court also noted that the plaintiff did not file a certificate from a practicing physician to substantiate her claims of illness. Second, the Court affirmed the trial justice’s dismissal of the plaintiff’s complaint for lack of prosecution, reasoning that the plaintiff did not fulfill her responsibility of moving the case on for trial.

Irene DaPonte v. Ocean State Job Lot, Inc. et al, No. 10-29 (May 12, 2011)

The president of Ocean State Job Lot, Marc Perlman, entered one of the company’s stores, and after expressing his displeasure over the placement of a price sticker, forcefully attached the sticker to the shoulder of the plaintiff employee, Irene DaPonte. As a result of that incident, the plaintiff filed a four-count complaint with the Superior Court against Mr. Perlman and Ocean State Job Lot. Two of those four counts were dispatched before the eventual trial. The remaining two counts, alleging (1) a violation of Ms. DaPonte’s right to privacy under G.L. 1956 § 9-1-28.1(a)(1), providing an individual with "[t]he right to be secure from unreasonable intrusion upon one’s physical solitude or seclusion," and (2) an associated claim, extending liability from Mr. Perlman to Ocean State, based upon the legal theory of respondeat superior, were tried by a Superior Court justice sitting without a jury. On March 6, 2009, final judgment was entered, dismissing both remaining counts of the plaintiff’s claim with prejudice. The plaintiff timely appealed the judgment of the trial justice to the Supreme Court. 

After hearing the parties’ arguments and considering the memoranda submitted, the Court affirmed the judgment of the trial justice. In so doing, the Court said, "we share the trial justice’s conclusion that even though there is a strong gloss of inappropriateness, and indeed offensiveness, attached to the defendant’s action, to transform the defendant’s public, boorish touching of the outer garment of the plaintiff’s shoulder and other coarse behavior into a right-to-privacy action would transform every non-permitted touching into a parallel right-to-privacy action * * *." Furthermore, the Court held that in arriving at the conclusion of law that the offensive conduct was "not actionable" under § 9-1-28.1(a)(1), the trial justice did not overlook or misconceive material evidence, and she was not otherwise clearly wrong in her decision.

Trust of Rose P. McManus, Elizabeth Cullen, Trustee v. Albert McManus et al., No. 09-191 (May 10, 2011)

This case centered on a dispute between four siblings over how the estate of their mother should be divided. One sister, Elizabeth Cullen, was the trustee of the mother’s intervivostrust. After distributing her mother’s assets, Elizabeth filed a petition for an order to discharge her; her siblings objected and counterclaimed that Elizabeth had misappropriated trust money by failing to include the balance of a Citizens Bank account opened by Elizabeth and her mother in the trust assets. The trial justice granted summary judgment in favor of the siblings, and Elizabeth appealed. 

In her appeal, Elizabeth argued that the presence of the word "joint" on the signature card, when read in conjunction with a separate document, the "Disclosure for Personal Accounts," created a right of survivorship in the account. The Court did not agree and concluded that neither document gave any indication that this particular account carried a right of survivorship, which is necessary to create such an interest. In so holding, the Court noted that its prior rulings very clearly require that joint accounts specifically state a right of survivorship for such a right to exist.

Val-Gioia Properties, LLC v. Earl Blamires et al, No. 09-92 (May 9, 2011)

The defendants, Earl Blamires, Earl’s wife, Sylvia Blamires, and Earl’s son, Brian Blamires, appealed from a Superior Court judgment denying their appeal from a District Court default judgment entered in favor of the plaintiff, Val-Gioia Properties, LLC. The Superior Court trial justice found that the Superior Court did not have subject-matter jurisdiction to hear the merits of the case and ultimately affirmed the default judgment entered by the District Court. 

The Supreme Court deemed this to be error, holding that the default judgment was vacated when the defendants filed an appeal to the Superior Court and that the defendants therefore were entitled to a trial denovo on all issues of fact and law, in accordance with G.L. 1956 § 9-12-10. The Court vacated the judgment of the Superior Court and remanded the case consistent with its opinion.

State v. Gerald Lynch, No. 07-81 (May 6, 2011)

The defendant, Gerald Lynch, appealed to the Supreme Court from a conviction of four counts of first-degree sexual assault, for which he was sentenced to twenty years at the Adult Correctional Institutions, ten years to serve, on each count, with the sentences to run concurrently. On appeal, he had four arguments: (1) the trial justice erred in denying his motions for acquittal and for a new trial because the state failed to prove beyond a reasonable doubt that the defendant used force or coercion, a necessary element of first-degree sexual assault; (2) it was error for the trial justice to admit evidence of the complainant’s size and age as compared to the defendant’s; (3) the trial justice erred when it instructed the jury concerning the defense of consent; and (4) the trial justice erred in allowing in testimony about the effects of the sexual assaults on the complainant. The Court held that there had been no error at the trial level and affirmed the convictions on all counts.

Walter Moore v. Rhode Island Board of Governors for Higher Education et al., No. 10-10 (May 6, 2011)

Walter Moore (Moore) appealed from the grant of summary judgment in favor of the defendant, Rhode Island Board of Governors for Higher Education (Board of Governors) and the University of Rhode Island (URI), in the Providence County Superior Court. Judgment was entered on the basis that Moore, in a prior suit, had executed a waiver and release in which he released the Board of Governors and, interalia, its agents, from liability for any cause of action—past, present, or future—arising from his employment by the Board of Governors. Moore then appealed to this Court seeking a determination of (1) whether URI has the capacity to sue and be sued in its own name; (2) whether URI is an agent of the Board of Governors; and (3) whether the June 13, 2005 release included a release of any potential claims against URI on the grounds that URI is an agent of the Board of Governors. 

The Supreme Court remanded the case to the Superior Court for further factual findings on whether Moore’s claim was time-barred.

Michael West et al v. James McDonald et al, No. 08-254 (May 6, 2011)

The petitioner, Michael West, desired to construct a total of six units, in the form of three duplexes. However, West’s plan to develop the land was denied by the East Providence planning board; that decision was affirmed by both the board of appeals and the Superior Court for Providence County. The Supreme Court granted the petition for certiorari to determine whether the requirements of a municipality’s comprehensive plan are controlling when they restrict a use that would seem to be allowed under the zoning code.

Before the Supreme Court, the petitioner argued (1) that the Superior Court erred when it held that a municipality is not mandated to conform its zoning ordinance to the comprehensive plan within eighteen months of adopting the comprehensive plan; (2) that the Superior Court misinterpreted East Providence’s zoning ordinance, comprehensive plan, subdivision regulations, and the record of prior proceedings; (3) that the Superior Court erred when it failed properly to resolve a conflict between the zoning ordinance and the comprehensive plan, and then that the comprehensive plan controls to resolve any such conflict; (4) that the Superior Court’s decision is contrary to public policy and public interest; and (5) that the doctrine of equitable estoppel prevents the denial of West’s proposed subdivision. On review, the Supreme Court concluded that the provisions requiring that zoning ordinances conform to comprehensive plans within eighteen months are directory rather than mandatory. As a result, a municipality’s failure to amend a zoning code within eighteen months does not eviscerate the goals, requirements, and mandates of a municipality’s comprehensive plan.

The Court then interpreted the city’s zoning ordinance and comprehensive plan. In examining the state and municipal rules, the Court observed that petitioner’s subdivision proposal must comply with both the comprehensive plan and the zoning code. The Court found instructive two provisions of the zoning code addressing potential conflicts between that code and the comprehensive plan. The first provided that the provisions of any other statute, ordinance or regulation that require a greater percentage of lots to be left unoccupied or impose other higher standards than are required in zoning code chapter shall govern in the event of such a conflict. An additional provision in the zoning code says: "[i]n instances of uncertainty in the construction or application of any section of this chapter, the ordinance shall be construed in a manner that will further the implementation of and not be contrary to, the goals and policies and applicable elements of such comprehensive plan." The Court, therefore, concluded that there was no error in the denial of the application for a subdivision that did not comply with the comprehensive plan.

Finally, the Court addressed the petitioner’s contention that the principles of equitable estoppel prevented the planning board from denying an application that comported to the zoning code. The Court concurred with the trial justice who determined that the facts did not support the application of equitable estoppel.

The Court, therefore, affirmed the judgment of the Superior Court.

State v. Norman Laurence, No. 2007-64 (April 27, 2011)

The defendant, Norman Laurence (Laurence), appealed from a Superior Court judgment denying his application for postconviction relief. Laurence argued that the trial justice erroneously dismissed his assertions that two attorneys rendered his pretrial representation ineffective. Laurence also alleged that his prose trial preparations secretly were taped while he was incarcerated at the Adult Correctional Institutions and then provided to the state’s attorneys who allegedly used the tapes to subvert his defense during trial. He contended that the trial justice erred when he found this spying claim meritless and also abused his discretion when he denied Laurence’s request to conduct discovery on this issue prior to the postconviction-relief hearing. The Supreme Court affirmed the trial court’s decision on all issues.

Concerning Laurence’s allegations of ineffective assistance, the Court held that the doctrine of resjudicata barred one of these claims and waiver at the postconviction-relief hearing disposed of the other. The Court also determined that the trial justice did not clearly err in finding Laurence’s spying allegation meritless because there was no credible evidence to overcome affidavits attesting that Laurence’s trial preparations were not taped or transmitted to the state. The Supreme Court likewise held that it was not an abuse of discretion for the trial justice to deny Laurence’s prehearing request to take depositions aimed at probing the validity of his spying allegations. Accordingly, the Court affirmed the judgment of the Superior Court.

Jacalyn Sidell v. Moss Sidell, No. 09-159 (April 19, 2011)

Moss Sidell (Moss) appealed from a Family Court judgment dismissing his post-divorce petitions for lack of jurisdiction, in favor of his ex-wife, Jacalyn Sidell (Jacalyn). The Court found that despite the parties agreeing that Rhode Island would remain the home state for purposes of the Uniform Child Custody Jurisdiction and Enforcement Act, G.L. 1956 chapter 14.1 of title 15, that Rhode Island no longer had jurisdiction over custody issues since neither Moss, Jacalyn, nor their minor child in question lived in Rhode Island. The Court found that the issue of modification of the support order was not before the Court, but that Rhode Island had permissive jurisdiction to enforce the order as the initiating state under the Uniform Interstate Family Support Act, G.L. 1956 chapter 23.1 of title 15. The Court vacated and remanded that portion of the judgment for a determination from the Family Court of whether it will accept its permissive jurisdiction. Lastly, it held that this was an inappropriate forum to determine whether Moss Sidell’s due-process rights were violated in Connecticut.

Barbara A. Rogers v. Robert F. Rogers, No. 10-106 (April 18, 2011)

The defendant, Robert F. Rogers, filed a motion for declaratory judgment, seeking a declaration that the Family Court was vested with subject-matter jurisdiction over the complaint for divorce filed by his wife, the plaintiff, Barbara A. Rogers. The Family Court suasponte dismissed the divorce action based on lack of subject-matter jurisdiction, upon learning that neither party resided in Rhode Island after the proceedings commenced. 

The Court vacated the judgment of the Family Court and held that, once the complaint for divorce is properly filed in Family Court, the Family Court is not deprived of subject-matter jurisdiction merely because the plaintiff has moved out of Rhode Island and changed his or her domicile. 

Mohan Papudesu, M.D. v. Medical Malpractice Joint Underwriting Association of Rhode Island and John Doe, alias, No. 09-364 (April 18, 2011)

The plaintiff appealed from a Superior Court grant of summary judgment in favor of the defendant insurer. On appeal, the plaintiff contended that the Superior Court erred (1) in ruling that certain language in the insurance contract governing the relationship between the parties constituted legally appropriate authority for the insurer to settle a malpractice claim against the plaintiff in disregard of his wishes and (2) in granting summary judgment on that ground.

The Supreme Court ruled that the contractual language at issue was unambiguous and that it gave the defendant full discretion to settle the malpractice claim against the plaintiff. Accordingly, after having considered the plaintiff’s arguments on appeal, the Supreme Court affirmed the Superior Court’s grant of summary judgment.

State v. Brandy Graff, No. 10-3 (April 18, 2011)

The Rhode Island Department of Corrections (DOC) appealed from a Superior Court order granting the motion of the defendant to transfer her to "ACI, Minimum Security, work release." On appeal, the DOC argued that the hearing justice erred in granting the motion; it contended: (1) that a motion to modify a sentence is not provided for by the Rules of Criminal Procedure; (2) that classification of inmates is the prerogative of the director of the DOC—and that, accordingly, the defendant is subject to the DOC’s existing work-release procedure; and (3) that the Superior Court’s classification of the defendant violated the doctrine of separation of powers.

The Supreme Court ruled that G.L. 1956 § 31-27-2.2 provided the hearing justice with the authority to order the defendant to the work-release program at the time of her sentencing. The Court further ruled, however, that the authority to sentence to work release was not a continuing authority and that the hearing justice erred in granting, some two years after her sentencing, the defendant’s motion to modify her sentence. Accordingly, after having considered the arguments of the parties on appeal, the Supreme Court vacated the order of the Superior Court.

Susan T. Duffy v. Sandra A. Powell, in her capacity as Director, Rhode Island Department of Labor and Training, and the Board of Review, Department of Labor and Training, No. 09-100 (April 14, 2011)

The Supreme Court granted the Rhode Island Department of Labor and Training’s (DLT) petition for writ of certiorari to determine whether G.L. 1956 § 28-41-6 prohibits receipt of temporary disability insurance (TDI) benefits after a lump sum workers’ compensation award. The DLT denied the respondent, Susan T. Duffy’s (respondent or Duffy) claim for TDI benefits because she had received a lump sum workers’ compensation award covering the same period of disability. This decision eventually was reversed by a judge of the Sixth Division District Court (District Court), who found that Duffy was entitled to receive TDI benefits, based "on the interests of justice."

The Supreme Court quashed the decision of the District Court. Under G.L. 1956 § 28-33-25, lump sum workers’ compensation settlements are to apply prospectively. Thus, the respondent’s lump sum workers’ compensation award covered the same period for which the respondent claimed TDI benefits, and § 28-41-6(a) disqualified her from receiving both. 

In re Julian D, No. 09-271 (April 11, 2011)

The respondent-father appealed from a judgment terminating his parental rights to his son, Julian. After a trial, the Family Court justice, in an oral pronouncement and a subsequently written decree, found that the Department of Children, Youth and Families (DCYF) had established by clear and convincing evidence that the respondent’s parental rights were terminated based on G.L. 1956 § 15-7-7(a)(3) and (a)(4). First, under § 15-7-7(a)(3), the trial justice found that the respondent’s son had been in DCYF’s custody and care for at least twelve months, DCYF had created an "appropriate" case plan that included an offer of services, these efforts by DCYF were "reasonable," the respondent did not comply with the case plan, and there was "no substantial probability" of the child returning safely to the respondent’s care within a reasonable period. Second, under § 15-7-7(a)(4), the trial justice determined that DCYF had proven parental abandonment. After concluding that both statutory predicates for termination existed, the trial justice found that it was in the best interests of the child, who was placed in a pre-adoptive home, that the respondent’s parental rights be terminated.

Despite the parties’ assumption that the trial justice had terminated the respondent’s parental rights based on § 15-7-7(a)(4) alone, the Supreme Court first held that the trial justice had based the termination of rights on both § 15-7-7(a)(3) and § 15-7-7(a)(4). The Court then went on to affirm based on § 15-7-7(a)(3), the statutory grounds for termination involving twelve months in DCYF custody. The Supreme Court determined that the trial justice did not clearly err when he found by clear and convincing evidence that the respondent’s son had been in DCYF custody for more than twelve months. The Court also agreed with the trial justice that DCYF’s appropriate case plan, which included an offer of sexual-offender treatment, constituted "reasonable efforts" that were aimed at "strengthening and encouraging" the parent-child relationship and were intended to address the situation that led to the child’s placement with DCYF. Given the respondent’s failure to accept these services and his continued disagreement with their necessity, the Supreme Court concluded that the trial justice did not erroneously find that the child would be unable to return to the respondent’s care within a reasonable time. Finally, the Court credited the Family Court justice’s finding that the best interests of the child also commanded termination because the respondent’s son had been living with his pre-adoptive foster family for nearly his entire life and had developed a mutual, loving bond with them. Accordingly, the Court affirmed the judgment of the Family Court terminating the parental rights of the respondent.

David Gordon v. State of Rhode Island, No. 09-67 (April 11, 2011)

David Gordon appealed from a Superior Court judgment denying his application for postconviction relief. On appeal, the applicant first argued that the magistrate did not have constitutional authority to preside over his postconviction-relief proceedings. The Supreme Court found that the applicant had failed to properly preserve this issue for appeal and thus the Court declined to address the argument.

Next, the applicant argued that the state had failed to disclose certain inducements given to a codefendant in return for her testimony against him. The applicant first averred that the state did not reveal the withdrawal of its objection to the codefendant’s release on bail. The Court concluded that this apparent inadvertent nondisclosure did not rise to the level of prejudice that would merit a new trial, and accordingly affirmed the magistrate’s denial of postconviction relief. The applicant contended that the state also failed to disclose its withdrawal of a probation violation against the codefendant and a $2,500 restitution reduction. The Court determined, however, that the trial justice did not err in declining to find these to be improperly undisclosed inducements.

Accordingly, the Court affirmed the judgment of the Superior Court.

State v. John E. Gauthier, No. 10-424 (April 8, 2011)

The defendant, John E. Gauthier, sought review of a Superior Court’s finding that he violated the conditions of his probation. The defendant argued that, because the complaining witness was not credible, and because there was a significant discrepancy between witnesses’ testimonies, the hearing justice acted arbitrarily and capriciously in finding a probation violation. The Supreme Court declined to second-guess the trial justice’s credibility determinations and concluded that the trial justice did not act arbitrarily or capriciously in finding reasonably satisfactory evidence that the defendant had violated his probation by failing to keep the peace and be of good behavior. Accordingly, the Court affirmed the judgment of the Superior Court. 

Cesar Tamayo v. Paula Arroyo, No. 09-34 (April 1, 2011)

Paula Arroyo, mother of Samantha Tamayo, appealed from an order in favor of Cesar Tamayo, father of the child. A Family Court magistrate rendered a decision holding that the father’s nontaxable income would not be included in the child-support calculation; income from his rental properties also would be excluded because his most recent tax return reported a loss on those properties; and lastly, that the mother would not be reimbursed for past or future day-care expenses based on tax reasons and because free day care purportedly was available by the father’s wife. A Family Court justice affirmed. On appeal the father argued that this Court did not have jurisdiction.

The Court found that it had proper jurisdiction, and vacated and reversed the magistrate’s order. We held that the taxability of income is not a proper consideration for a child-support calculation; that when looking at business income the magistrate carefully must review income and expenses; and that the sole criterion for determining whether day-care expenses will be included in the calculation is whether those costs are reasonable.

Ashley Hahn v. Allstate Insurance Company, No. 09-164 (March 31, 2011)

The plaintiff, Ashley Hahn, sought injunctive relief as well as compensatory and punitive damages against the defendant, Allstate Insurance Company, based on its refusal to submit to an appraisal of fire damage to the plaintiff’s house. The Superior Court issued a permanent injunction requiring that the defendant submit to the appraisal process. The defendant then appealed to this Court, contending (1) that the trial justice failed to make adequate findings of fact to support a final judgment as required by Rule 54(b) of the Superior Court Rules of Civil Procedure; (2) that although labeled "a permanent injunction," the relief actually was preliminary and mandatory in nature and as such, the trial justice failed to find "great urgency" to justify this form of relief; and (3) that the trial justice’s declaration that the parties were bound to submit the dispute to appraisal was inconsistent with the facts of the case and the applicable case law.

This Court denied Allstate’s contentions and affirmed the judgment below. The Court held that the trial justice made adequate factual findings required by Rule 54(b), that a finding of "great urgency" was implicit in his ruling, and that, therefore, the judgment issued with respect to one of the three counts in the complaint was warranted; and lastly, that the trial justice was correct in ruling that Allstate was bound to submit to the appraisal process. 

Charles D. Moreau, et al v. Robert G. Flanders, Jr., Esq., in his capacity as appointed Receiver for the City of Central Falls et al., No. 10-400 (March 29, 2011)

The City of Central Falls is a duly authorized municipal corporation that has a home rule charter adopted in accordance with article 13 of the Rhode Island State Constitution. The mayor and city council of the City of Central Falls brought appeal from a Superior Court ruling upholding the constitutionality of G.L. 1956 chapter 9 of title 45, as amended by P.L. 2010, ch. 27, §1, entitled, "An Act Relating to Cities and Towns—Providing Financial Stability" (act). That constitutional challenge was preceded by a dire fiscal crisis faced by the citizens of Central Falls and its elected officials. That fiscal crisis was largely defined by a June 30, 2009, independent audit. Therefore, in May 2010, the mayor and city council petitioned the Superior Court for the appointment of a receiver who would aid the city in returning to fiscal stability. That petition was granted by the Superior Court, and a temporary judicial receiver was appointed. 

Aware of what was happening in Central Falls, the General Assembly determined that judicial receiverships, initiated solely at the discretion of a municipality, were not in the best interest of the citizens of Central Falls or the state. Thereupon, the General Assembly worked a major revision of chapter 9 of title 45, which was signed into law in June 2010. The legislation prohibited municipalities from seeking the appointment of judicial receivers, but instead authorized the director of the Department of Revenue to execute a defined process to restore stability to fiscally imperiled municipalities. Potential conflict between the revised act and the judicially appointed receiver was avoided when Mayor Moreau and the city council jointly sought a consent order, which, by city council resolution approved June 17, 2010, would dismiss "the pending Superior Court action with prejudice after transitioning the Receivership from Superior Court to the State Department of Revenue."

On July 16, 2010, retired Superior Court Justice, Mark A. Pfeiffer (receiver) was appointed by the director of the Department of Revenue to serve as receiver for the City of Central Falls. Following his appointment, by letter dated July 19, 2010, Pfeiffer informed Mayor Moreau that he, Pfeiffer, had been appointed receiver of Central Falls and that he had assumed the duties and functions of the office of mayor. The mayor was thus, as permitted by the act, relegated to an advisory capacity. Thereupon, on September 20, 2010, the city council passed a resolution that authorized the engagement of independent legal counsel to file a legal action to challenge the constitutionality of the act. 

In a comprehensive decision dated October 18, 2010, the trial justice addressed sundry arguments pertaining to the constitutionality of the act. In his decision, the trial justice upheld the act as constitutional. The mayor and city council timely appealed, and the matter was assigned to the regular calendar for a full briefing and hearing. The parties appeared before the Supreme Court on February 1, 2011. 

On appeal, the Supreme Court held that: (1) the act does not contravene the Home Rule Amendment of the Rhode Island Constitution because the act applies alike to all municipalities and its affect upon any municipality’s form of government is temporary and incidental; (2) the act does not violate the separation of powers doctrine because that concept is foreign to municipal governance; (3) the appellants’ constitutional vagueness argument is without merit; (4) the delegation of power granted to the Department of Revenue under the act is permissible; (5) broadside attacks that the act creates absurd results that shock the conscience are speculative and conjectural, and that judicial relief is available if such speculation should ever ripen into a discernable cause of action; (6) the act does not violate equal protection because publicly elected officials are not similarly situated to union members represented through collective bargaining; and (7), because an elected office is an agency of trust inuring from and for the benefit of the people, an elected official cannot claim a fundamental right to the office, and thus, Mr. Moreau does not hold a property interest in the office of mayor that is subject to the requirements of procedural due process. So holding, the Supreme Court affirmed "the detailed, well-written, and scholarly decision of the trial justice * * *."

David M. Campbell et al. v. Tiverton Zoning Board et al., No. 10-45 (March 25, 2011)

After the defendant Tiverton Yacht Club (the defendant or TYC) lost its clubhouse to a fire in 2003, it endeavored to rebuild. The Tiverton building official issued a building permit to the TYC in 2006. However, the Campbells and the Morans (collectively, the plaintiffs), whose homes abut the TYC clubhouse’s property, filed an action for a declaratory judgment and injunctive relief in Newport County Superior Court requesting that the court determine the extent to which "the expansion and intensification represented by the building plans and building permit represent[ed] a continued expansion and intensification of the TYC since it became a non-conforming use * * * in 1964." They requested that the court enjoin the rebuilding of the clubhouse pursuant to the TYC’s building plans and the issued permit. 

After several hearings before a justice of the Superior Court, the trial justice found in favor of the plaintiffs holding that the issued building permit for the proposed clubhouse in a residential zone represented an unlawful expansion of the TYC’s nonconforming use. She also held that the TYC’s marina across the street from its clubhouse "must be prohibited and declared to be an unlawful expansion of a nonconforming use" because the marina did not exist in 1964 and operated "in tandem" with the TYC clubhouse.

The defendants appealed from the declaratory judgment delineating the extent and nature of the TYC’s nonconforming use as it related to the issued building permit and its marina operations. Subsequently, the trial justice considered and denied the Campbells’ motion for attorney’s fees under Rhode Island’s legislation entitled Equal Access to Justice for Small Businesses and Individuals, codified at G.L. 1956 chapter 92 of title 42 (the act). The Campbells appealed from the order denying their motion. While these consolidated appeals were pending, the Tiverton Town Council amended its zoning ordinances and map so that the TYC clubhouse lot was no longer the site of a nonconforming use.

The Supreme Court declined to address the merits of the defendant’s appeal because as a result of the amendment eliminating the TYC’s nonconforming use, the issues raised in the defendants’ appeal were moot, save one. The Court held that the issue of whether the trial justice erred when she prohibited the TYC’s operation of its marina was not moot. It reasoned that the trial justice abused her discretion and exceeded her authority because the marina was a legal operation that was distinct from the clubhouse and, therefore, they were not "tandem" entities. Accordingly, the Court denied and dismissed the defendants’ appeal in part and vacated the judgment of the Superior Court in part. 

The Court next considered the Campbells’ appeal from the denial of their motion for attorney’s fees under the act. The Court held that the Campbells were not entitled to attorney’s fees because the Tiverton building official did not conduct an "adjudicatory proceeding" as required under the act when he issued the building permit to the TYC. Accordingly, the Court affirmed the judgment of the Superior Court.

Karen Elias-Clavet v. Board of Review, Rhode Island Department of Employment and Training, et al, No. 09-152 (March 22, 2011)

The petitioner, Karen Elias-Clavet, a per-diem substitute teacher, filed for writ of certiorari seeking appellate review of a District Court decision affirming the denial of her claim for unemployment benefits. Denial of benefits by the Department of Labor and Training was based upon the between-terms disqualification provision of G.L. 1956 § 28-44-68(2) of the Rhode Island Employment Security Act. Before the Court, the petitioner argued that she did not receive reasonable written assurance of continued employment under substantially the same terms and economic conditions for the academic year following summer vacation, and therefore, she should not have been disqualified from receiving unemployment benefits.

Review of the entire record in this case led the Court to conclude that there was legally competent evidence—and reasonable inferences that may be drawn therefrom—to support the agency’s denial of benefits to the petitioner, as well as the District Court’s decision to affirm. Specifically, the Court held that a letter on June 9, 2008, to the petitioner, when considered in conjunction with the response form sent with the mailing, satisfied the written "reasonable assurance" provision of § 28-44-68(a). Furthermore, the Court was in accord with its prior holding that the term "reasonable assurance" is not to be construed as constituting a guarantee of future employment to a per-diem substitute teacher.

The Supreme Court affirmed the decision of the District Court, and quashed the writ of certiorari previously issued.

State v. David Gongoleski, No. 09-120 (March 18, 2011)

The defendant, David Gongoleski, was convicted of vandalism and disorderly conduct. On appeal, he argued that the trial justice abused her discretion by admitting, for impeachment purposes, evidence of the defendant’s prior convictions for assault and for violation of a no-contact order. The defendant asserted that evidence of the convictions added little, if any, probative value on the issue of his credibility as a witness, and that he was enormously prejudiced by their admission.

The Supreme Court affirmed the judgment of the Superior Court. It held that the trial justice properly balanced the prejudicial effect versus probative value of admitting the defendant’s previous convictions before coming to a reasonable conclusion that the probative value significantly outweighed the prejudice of admittance. The Court also noted that the trial justice guarded against potential prejudice by prohibiting the state from referring to the convictions as domestic and from referring to the identity of the victims. The Court concluded that the trial justice therefore did not abuse her discretion by admitting evidence of the defendant’s prior convictions for impeachment purposes.

State v. Evaristo Rosario, No. 08-319 (March 11, 2011)

The defendant appealed from a judgment of conviction entered after a jury trial in the Superior Court for Providence County. On appeal, the defendant contended that the trial justice erred by denying his motions to pass the case.

The Supreme Court ruled that the challenged rulings of the trial justice were not erroneous. Accordingly, after having considered the defendant’s arguments on appeal, the Supreme Court affirmed the judgment of the Superior Court.

Paula J. DiPaola v. Anthony DiPaola, No. 09-61 (March 11, 2011)

 The plaintiff, Paula J. DiPaola, appealed from a Family Court post-final judgment order in favor of her former husband, Anthony DiPaola (defendant). The order reversed the holding of the general magistrate, and found that the parties’ marital settlement agreement (agreement) unambiguously assigned to the plaintiff one-half of only those stock options that had vested as of the date the parties executed the agreement. On appeal, the plaintiff contended that the intent of the agreement was to entitle her to one-half of all the defendant’s stock options, including those that had not yet vested as of the date the agreement was executed. The defendant, on the other hand, argued that the purpose of the agreement was to divide only those stock options that had vested as of the date the parties executed the agreement. The defendant further contended that the plaintiff waived her interest in the non-vested stock options.

 The Supreme Court vacated the decision below, holding that the agreement was reasonably susceptible to two different meanings, and therefore was ambiguous. The Court determined that one reasonably could read the agreement both as dividing only those stock options that had vested as of the date of the agreement, or as dividing all of the defendant’s stock options. The Court then reviewed the record to discern the intended meaning of the agreement. In adopting the construction that was most equitable and that would not give to one party an unconscionable advantage over the other, the Court interpreted the agreement to entitle the plaintiff to one-half of all stock options that the defendant earned during the marriage, including those that vested after the agreement was executed.

Benjamin Zanni v. Joseph Voccola et al, No. 09-137 (March 8, 2011)

This case came before the Supreme Court on January 31, 2011. The Court affirmed the judgment of the Superior Court.

The plaintiff was severely injured in 1996 while he was mowing grass as part of a work assignment at Allenwood Federal Prison Camp. After his subsequent release from incarceration in early February 1997, the plaintiff met with his attorney, Mr. Joel Landry, to discuss potential legal claims related to his accident, including a products-liability action against the lawn mower manufacturer that is central to this case.

On October 30, 1998, the last day before Pennsylvania’s two-year statutory period for products liability cases was to expire, the plaintiff filed a products-liability action in that state against the manufacturer of the lawn mower. Mr. Landry prepared the complaint; but, because Mr. Landry was not licensed to practice in Pennsylvania, he had Mr. Benjamin Zanni sign the complaint as a prose litigant and engaged a Pennsylvania attorney, Mr. Warren Baldys, to file it.

The plaintiff believed his case was proceeding in due course. However, in a letter dated August 30, 1999, the plaintiff learned that the products-liability action would be dismissed in ten days because the party sued was not the party responsible and the plaintiff was failing to properly advance the action. The plaintiff believed his case was over and subsequently terminated his relationship with attorney Landry. At some point in the end of 1999 or early in 2000, Mr. Zanni received notice that the case had been dismissed and could not be revived.

On March 9, 2005, the plaintiff filed a complaint for legal malpractice against Mr. Landry and Mr. Voccola. The defendants moved for summary judgment on the ground that the three-year statute of limitations for legal malpractice had expired prior to the plaintiff’s suit. A motion justice entered judgment in favor of the defendants on June 27, 2008.

The Supreme Court reviewed the granting of a motion for summary judgment denovo. It concluded that by applying either the statute of limitations or its exception, the discovery rule, the statutory period to bring suit expired prior to the plaintiff bringing his action. In doing so, the Court noted several undisputed facts that clearly demonstrated that the plaintiff knew of the alleged acts of malpractice. Specifically, the Court concluded that the dismissal of the complaint by the Pennsylvania court undoubtedly put the plaintiff on notice of a potential claim; that the end of the attorney-client relationship marked a point prior to which the alleged acts of malpractice must have occurred; and the plaintiff’s claim that he could not have known of the malpractice prior to reviewing his file in 2004 was without merit.

State v. Brian Mlyniec, No. 09-47 (March 7, 2011)

The defendant, Brian Mlyniec, appealed from a Superior Court judgment of conviction for first-degree murder, for which he received a sentence of life without the possibility of parole. On appeal, the defendant argued that the trial justice erred in failing to suppress his videotaped statement to the police, averring that his statement was involuntary because of his intoxication and that the police unlawfully ignored his request for counsel. The Supreme Court concurred with the trial justice’s conclusion that the defendant’s statement was voluntary. Furthermore, the Court found that the defendant’s argument about counsel was untimely and had been appropriately denied as such.

The defendant also argued that the trial justice improperly allowed testimony about a prior act of misconduct by the defendant, in violation of Rule 403 of the Rhode Island Rules of Evidence. The Court held, however, that the trial justice did not abuse his discretion in allowing the testimony.

Next, the defendant argued that the trial justice erred in refusing to recuse himself from presiding over the trial because of his alleged bias and the appearance of impartiality resulting from the trial justice’s previous participation in a federal investigation involving defense counsel. The Court found that the trial justice did not err by denying the motion to recuse.

Finally, the defendant challenged the imposition of his sentence of life without parole. Upon conducting an independent review of the entire record, the Court found the defendant’s crime to be of the "most heinous" crimes and determined that the sentence of life imprisonment without parole was appropriate. Accordingly, the Court affirmed the judgment of the Superior Court.

Thomas D. Cullen v. Robert Tarini et al., No. 09-224 (March 7, 2011)

The defendants, Robert and Nellie Tarini and Hammersmith Investment Associates, LLC, appealed from a Superior Court judgment granting a permanent injunction to enforce certain restrictive covenants that limited construction on the defendants’ property. The defendants contended that the trial justice erred in two primary respects: (1) in granting injunctive relief to the plaintiff without balancing the equities between the parties and without proof of irreparable harm to the plaintiff; and (2) in overlooking and misconceiving material evidence.

The Supreme Court affirmed the judgment of the Superior Court, holding that the plaintiff, Thomas D. Cullen, was entitled to enforce the restrictive covenants against the defendants, notwithstanding the defendants’ expenditure of over $1 million to construct a house that violated the restrictions in several key respects. First, the Court determined that the trial justice did not overlook or misconceive material evidence in finding that (1) the defendants failed to provide the plaintiff with meaningful notice of the size and location of the planned construction; (2) the plaintiff appropriately notified the defendants of his intention to strictly enforce the restrictive covenants; and (3) the defendants came to the court with unclean hands. 

The Court next concluded that the trial justice did not abuse his discretion by granting injunctive relief without proof of irreparable harm to the plaintiff and without balancing the equities between the parties. The Court stated that proof of irreparable harm and a balancing of the equities are not required in all restrictive covenant cases. In this case, the Court reasoned that injunctive relief was appropriate because the defendants knowingly violated the valid restrictive covenants that applied to their property, and did so without adequately notifying the plaintiff of the violations, and because the violations offended the purpose of the restrictive covenants. 

Leslie Rivera v. Joseph E. Rose et al, No. 09-220 (March 7, 2011)

The plaintiff appealed from a Superior Court order denying her motions to (1) vacate a judgment on an arbitration award and (2) allow her to file a rejection of the arbitration award out of time. The plaintiff argued that the trial justice abused her discretion by not finding that the plaintiff’s failure to file a rejection of the arbitration award within the appropriate time limit was excusable neglect. The plaintiff asserted that excusable neglect existed in this case because, as a result of circumstances beyond her control, she did not receive (1) notice of her attorney’s withdrawal from the case; (2) notice of the arbitration hearing date; or (3) a copy of the arbitration award. The defendants argued that the plaintiff’s failure to timely reject the arbitration award was not excusable neglect because the plaintiff had actual or constructive notice of the ongoing arbitration and should have monitored her own case.

The Supreme Court vacated and reversed the order of the Superior Court. The Court noted that the order granting the plaintiff’s former counsel’s motion to withdraw required all notices to be sent to the plaintiff via certified mail; however, no notices were actually sent to the plaintiff via certified mail. The Court also reasoned that the plaintiff’s failure to timely reject the arbitration award was not within her control because the plaintiff’s landlord withheld her mail without her knowledge and, in doing so, prevented the plaintiff from receiving important arbitration notices.

The Supreme Court remanded the case to the Superior Court with instructions to vacate the judgment on the arbitration award, to allow the plaintiff to file a rejection of the arbitration award out of time, and for further proceedings consistent with the opinion.

State v. Darrell E. Pona, No. 09-305 (March 3, 2011)

The defendant appealed from an adjudication of probation violation in Superior Court. He argued on appeal that the hearing justice acted arbitrarily and capriciously when he found that the defendant violated his probation. The defendant also argued that he was entitled to a new violation hearing based on newly discovered evidence including photographs and evidence that was "material to the credibility of the sole eyewitness" to the defendant’s conduct. As a result, he contended that he was denied due process and requested the Supreme Court to vacate the hearing justice’s finding and remand the matter to the Superior Court.

At the violation hearing, there was testimony from the eyewitness to the defendant’s conduct, the arresting Providence police officer, and the resident of the home that the defendant allegedly attempted to break and enter. The eyewitness, the resident’s neighbor and an off-duty trooper for the Rhode Island State Police, testified that on June 15, 2008, he observed the defendant walk across the street to the home and tap on the door. He also testified that as he approached the defendant, he "heard a ripping sound" after he saw the defendant "fumbling with the door." The eyewitness asked him what he was doing, and informed him that he was a state trooper. According to the eyewitness, the defendant then fled on foot. He was later apprehended and arrested by a Providence police officer who received a description of the defendant from the resident who called the police after the eyewitness alerted her to what he had observed at her home. 

The hearing justice found the eyewitness and the resident to be highly credible, but found the arresting officer less so because of his limited recollection and reliance on his report. However, the hearing justice was "reasonably satisfied" that the defendant "failed to keep the peace and be of good behavior on June 15, 2008." Therefore, he found that the defendant violated the terms of his previously imposed probations. The hearing justice sentenced the defendant to serve six years of a previously imposed seven-year suspended sentence, with one year suspended and continued the defendant’s previously imposed probation.

After careful review, the Court concluded that reasonably satisfactory evidence existed to support the hearing justice’s finding that the defendant violated the terms and conditions of his probation. The Court declined to "second-guess" the hearing justice’s credibility determinations because they were supported by the record before him. Therefore, the Court held that the hearing justice acted neither arbitrarily nor capriciously when he adjudicated the defendant a probation violator. Finally, the Court also declined to address the defendant’s argument that his due-process rights were violated and that he was entitled to a new hearing because these issues had not yet been presented to the Superior Court in the first instance. Accordingly, the Supreme Court affirmed the judgment of the Superior Court.

State v. Maria J. Pineda, No. 09-53 (March 2, 2011)

The defendant, Maria J. Pineda, appealed from her convictions for felony assault with a dangerous weapon, a hammer, G.L. 1956 § 11-5-2, and disorderly conduct, G.L. 1956 § 11-45-1. Pineda contended that the trial justice erred in four respects: (1) declining to instruct the jury on self-defense, (2) failing to inform her that she was entitled to individual counsel separate from her codefendant or to inquire into the specific conflicts of interest potentially caused by their joint representation, (3) denying her motions for a judgment of acquittal, and (4) denying her motion for a new trial. The Court affirmed the trial court’s decision on all issues.

In arguing that the self-defense instruction was improperly withheld, Pineda maintained that her articulated theory of self-defense, kicking and deflecting blows in attempts to repel the complainant, was supported by the requisite amount of evidence in the record. Although agreeing there was evidence of self-defensive kicking and deflecting blows in the record, the Court held that the defendant’s theory was distinct from an assault with a hammer and therefore could not justify or excuse the charged crime. Accordingly, the Court determined that giving a self-defense instruction upon this basis would have confused the jury, and the trial justice properly declined Pineda’s request. Furthermore, the Court held that even if Pineda had raised a properly framed self-defense hypothesis, that she used the hammer in self defense, there was not a scintilla of evidence in the record that Pineda used the hammer in a self-defensive manner. In the Court’s view, a self-defense instruction is not appropriate for a charge of assault with a dangerous weapon when the record lacks any evidence that the specific, charged dangerous weapon was used in a self-defensive manner. Accordingly, the Court determined that the trial justice properly withheld the self-defense jury instruction.

The Court also disagreed that the joint representation of Pineda and her codefendant brother caused actual conflicts of interest that adversely affected her counsel’s performance thereby depriving Pineda of her Sixth Amendment rights. The Court further declined to adopt a supervisory rule that would affect the sanctity of the attorney-client relationship by requiring trial justices to affirmatively investigate potential conflicts caused by joint representation and inform codefendants of their right to separate counsel. Neither a review of the societal benefits and burdens implicated by the suggested rule, nor Pineda’s alleged examples of conflict persuaded the Court to afford criminal defendants such prophylactic measures.

Based on the evidence in the record and the great weight accorded to a trial court’s ruling on sufficiency of evidence motions, the Court also affirmed the trial justice’s denial of Pineda’s motion for a new trial. In so ruling, the Court held that it was not clear error for the trial justice to find that the jury reasonably credited the complainant’s version of case and that the record contained other evidence, beyond the complainant’s testimony, that also substantiated the jury’s verdict. Furthermore, because the defendant could not prevail on the motion-for-a-new-trial standard, the Court also held that it was not error for the trial justice to deny Pineda’s motions for a judgment of acquittal, which present an even heavier evidentiary hurdle for a defendant.

Scott Pierce v. Providence Retirement Board, No. 09-145 (March 2, 2011)

This case came before the Supreme Court as a petition for a writ of certiorari filed by Scott Pierce based on Article I, Rule 13(a) of the Supreme Court Rules of Appellate Procedure. Pierce sought the Court’s review of a Providence Retirement Board decision that denied his application for accidental-disability retirement benefits. Pierce had worked as a Providence firefighter for over twenty-six years and repeatedly injured his ankle at work. On June 29, 2006, Pierce again injured his ankle on the job, and after ankle fusion surgery, was unable to return to his position. He applied to the board for accidental-disability retirement and submitted to three medical evaluations that confirmed he was permanently disabled as a result of workplace accidents. Nonetheless, the board denied Pierce’s application because his disability was not proximately caused by a single, workplace accident. In its view, the board determined that the ordinance dictating the qualifying criteria for accidental-disability retirement requires a single, workplace accident cause the disability. On certiorari, Pierce asked the Court to examine whether the board correctly interpreted and applied the City of Providence ordinance.

The Supreme Court held that the board misinterpreted the ordinance. Based on applicable canons of statutory construction (included in the Providence Code’s "Rules of construction") and the legal definition of proximate cause, the Court concluded that the proper interpretation of the ordinance permits a retirement-system member to qualify for accidental-disability retirement if the disability was caused by multiple, work-related accidents. Upon its correction of the board’s legal reasoning, the Court held that Pierce’s examining physicians opined that that multiple workplace accidents, including the accident on June 29, 2006, proximately caused Pierce’s permanent ankle disability. Because the June 2006 accident occurred within eighteen months of Pierce’s application and was one of the proximate causes of his disability, Pierce’s application met all requirements of the ordinance. Accordingly, the Court quashed the board’s decision to deny Pierce these benefits and remanded to that tribunal with directions to award Pierce accidental-disability retirement benefits retroactive to the date of his original retirement.

State v. Kendall Johnson, No. 09-249 (February 18, 2011)

On August 26, 2008, Kendall Johnson was charged by information in the Superior Court of Providence County on four counts: (1) assault with a dangerous weapon (namely, a firearm) upon Donald Washington; (2) discharging a firearm while committing a crime of violence, causing injury to Mr. Washington; (3) assault with intent to rob Mr. Washington; and (4) carrying a pistol without a license. 

At a jury trial, the defendant was identified as the gunman. He was convicted on all four counts of the information and sentenced to an aggregate of thirty years in prison. On appeal, the defendant contended that the trial justice committed reversible error when he admitted into evidence statements by an eye witness, Ms. Reed, and Providence Police Department Det. A’vant about the defendant’s nickname. 

In affirming the judgment, the Supreme Court adopted the approach of jurisdictions that have held that nicknames, as used in this context, do not constitute hearsay because their use does not rise to the level of an assertion. In the Court’s opinion, the admission of this testimony did not constitute a clear abuse of the trial justice’s discretion.

Moreover, the Court held that because the witnesses were able to positively identify the assailant by his given name and other physical characteristics, any testimony about the defendant’s nickname was merely cumulative and therefore not prejudicial.

B.S. International Ltd. v. JMAM, LLC, No. 09-72 (February 16, 2011)

The plaintiff appealed a Superior Court judgment entered in favor of the defendant. On appeal, the plaintiff contended that the trial justice’s factual findings with respect to the contract governing the relationship between the parties were erroneous.

The Supreme Court ruled that the trial justice’s findings of fact, largely based upon credibility determinations, were not clearly erroneous. Accordingly, the Court sustained the trial justice’s ultimate ruling that the defendant was entitled to reimbursement for rejected merchandise, even if that merchandise had not been returned to the plaintiff.

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

State v. Fernando Guerra, No. 08-320 (February 15, 2011)

The defendant appealed a Superior Court denial of his motion for a new trial, which motion he filed after a jury found him guilty of entering a building with the intent to commit larceny. On appeal, the defendant contended that the trial justice committed clear error because, in his view, the jury’s verdict was against the fair preponderance of the evidence and failed to do substantial justice.

The Supreme Court ruled that the trial justice’s ruling was not clearly wrong and that the trial justice did not misconceive or overlook material evidence in denying the defendant’s motion. Accordingly, after having considered the defendant’s arguments on appeal, the Supreme Court affirmed the judgment of the Superior Court.

Town of Coventry v. Braid Properties, No. 09-133 (February 7, 2011)

This action stemmed from various zoning violations committed by the defendant, Baird Properties, LLC, on a large parcel of land on Gibson Hill Road in Coventry, Rhode Island. The defendant appealed from: (1) a Superior Court order enjoining the defendant and "its member," Michael Baird, from harassing intervenors, James and Lee Steitz, and their attorney, Nicholas Gorham; (2) the denial of Baird’s motion for a temporary restraining order against Nicholas Gorham; and (3) the trial justice’s finding that Baird was in contempt of a previously entered restraining order. Before the Supreme Court, the defendant argued that the trial justice erred (1) by allowing the Steitzes to intervene; (2) when he denied the defendant’s motion for a restraining order against Nicholas Gorham; and (3) by finding the defendant in contempt and sentencing him to serve one and one-half days in the Adult Correctional Institutions.

The Supreme Court affirmed on all counts, holding that the trial justice correctly granted the Steitzes motion to intervene pursuant to Rule 24(a)(2) of the Superior Court Rules of Civil Procedure; that the Superior Court did not possess personal jurisdiction over Nicholas Gorham and could not grant a restraining order against him; and that the defendant consented to the court’s contempt jurisdiction and thereby waived his right to appeal his sentence.

Eric Neufville v. State of Rhode Island, No. 09-107 (February 4, 2011)

Eric Neufville (applicant) appealed from a judgment denying his application for postconviction relief in the Superior Court, alleging that he received ineffective assistance of counsel and that, but for this deficiency, he would not have entered pleas of nolo contendere to the crimes of assault, assault with intent to commit robbery, felony assault on two individuals and possession of a firearm without a license and breaking and entering. The applicant alleged that his trial attorney had failed to investigate the facts of his case; he had not filed any pretrial motions; that counsel had failed to prepare for trial and had told the applicant that he had no defense; and he had failed to inform the applicant, a noncitizen, of immigration consequences if he were convicted.

We affirmed the denial of postconviction relief, holding that the applicant received effective assistance of counsel and therefore that his entry of pleas was knowing and voluntary.

Raymond Lynch v. State of Rhode Island, No. 07-317 (February 4, 2011)

Raymond Lynch (Lynch) was convicted of three counts of first-degree sexual assault and two counts of second-degree sexual assault against his developmentally disabled daughter. He appealed from a Superior Court judgment denying his application for postconviction relief, alleging his constitutional rights were violated by ineffective assistance of counsel and prosecutorial misconduct. Lynch further contended that there was insufficient evidence at trial to support his conviction; however, the Supreme Court addressed this argument on direct appeal, and Lynch thus was barred from raising the issue again in a postconviction-relief setting.

The Supreme Court affirmed the judgment of the Superior Court, holding that Lynch received effective assistance of counsel, and that no prosecutorial misconduct occurred.

Harry Hill et al v. National Grid et al., No. 09-214 (January 22, 2011)

Twelve-year-old Austin Hill suffered injuries while engaging in a game of touch football on a vacant lot owned by the defendant, National Grid. The plaintiffs filed a complaint for negligence in Superior Court alleging that Austin was injured by a dangerous condition on the property. Before the Superior Court, the plaintiff contended that the defendant had a duty to a trespassing minor, in this instance, stemming from the attractive nuisance doctrine. That doctrine provides an exception to the general rule that landowners owe very limited duties to trespassers.

After hearing arguments about the applicability of the attractive nuisance doctrine, a justice of the Superior Court granted the defendant’s motion for summary judgment. She determined that the plaintiff had failed to make any showing that the defendant knew or had reason to know children were trespassing. The plaintiffs appealed that judgment.

The Supreme Court reviews the granting of summary judgment de novo. Here, the Court determined that the plaintiffs have raised sufficient facts from which a reasonable jury could conclude that the defendant knew or had reason to know trespass was likely. The Court further determined that a reasonable jury could conclude that the defendant knew or had reason to know of a dangerous condition on the property, namely metal stakes protruding from the ground. Because there are disputed material facts, the entry of summary judgment was improper. Therefore, the Supreme Court vacated the judgment of the Superior Court.

Julie A. Pearson a/k/a Julie A. Marion v. Gregory J. Pearson, No. 09-334 (January 21, 2011)

The defendant, Gregory J. Pearson, appealed from a Family Court order requiring him to pay costs and attorney’s fees to the plaintiff, Julie A. Marion. On appeal, Pearson contended that as the prevailing party on Marion’s motion to adjudge him in contempt, the trial justice abused his discretion by awarding attorney’s fees to Marion. He argued that the Rhode Island General Laws pertaining to domestic relations do not expressly authorize an award of attorney’s fees to a nonprevailing party and also that the Family Court justice should have considered certain domestic relations statutory factors before granting the award.

The Court held that the parties’ property settlement agreement provided an adequate contractual basis for awarding attorney’s fees and it was not an abuse of discretion for the trial justice to award the fees to Marion in this case. The Court also held that Rhode Island’s domestic relations laws, G.L. 1956 chapter 5 of title 15, did not apply to the instant issue, which was essentially a contract dispute and not a petition for divorce or similar action.

Accordingly, the Court affirmed the order of the Family Court.

State v. Curley Snell, No. 09-262 (January 21, 2011)

The defendant, Curley Snell, appealed from an order denying his motion to reduce his sentence based on Rule 35(a) of the Superior Court Rules of Criminal Procedure. Snell was convicted of two counts of assault with a dangerous weapon, a knife, one count of assault with a dangerous weapon, a shod foot, and one count of simple assault, aggravated as his third domestic conviction. Snell was sentenced to a total of forty-five years, with thirty years to serve and fifteen years suspended, with probation to commence upon his release from prison. To support his Rule 35 motion, Snell argued that the imposition of two, fifteen-year, consecutive sentences exceeded the Superior Court Sentencing Benchmarks and therefore were was grossly disproportionate. He further argued that the imposition of consecutive sentences was not supported by extraordinary aggravating circumstances. In his specific allegation of error, the defendant maintained that the trial justice incorrectly assessed that wounds inflicted upon Snell’s victims were "life threatening," and therefore, it was an abuse of discretion for the trial justice to justify the elevated and consecutive sentences upon this basis.

First establishing that Snell’s sentences did not exceed statutory maximums, the Court held the trial justice was sufficiently justified in departing upward from the Superior Court Sentencing Benchmarks. While acknowledging that the trial justice did state that Snell’s victims sustained life-threatening injuries, the Court held that the trial justice articulated numerous other reasons for giving Snell a stiff punishment, including the viciousness of the crimes, Snell’s criminal record riddled with prior assaultive conduct and domestic violence, Snell’s refusal to take responsibility or show remorse for his actions, Snell’s efforts to control the behavior of his child’s mother, and the fact that the commission of the crime was by ambush. Based on the record, the Court was satisfied that the nature of the injuries was but one of several reasons why Snell received a strict term of years to serve. The Court held that the trial justice was well within his discretion to give and then confirm the length of punishment for Snell.

Likewise, the Court was unswayed by Snell’s assertion that consecutive sentences were unwarranted because the injuries were not medically life threatening and therefore could not support a finding of extraordinary aggravating circumstances. Noting that Snell primarily relied upon authority lacking precedential value, the Court held based on the trial record, especially the fact that there were two, non-simultaneous assaults on two different victims, it was not an abuse of discretion for the trial justice to impose consecutive sentences and thereafter deny Snell’s Rule 35 motion on this basis.

 Accordingly, the Court affirmed the order of the Superior Court.

Melanie B. Cahill v. Margaret P. Morrow, Individually and in her capacity as Executrix of the Estate of George R. Morrow, No. 08-34 (Janaury 20, 2011)

The defendant, Margaret P. Morrow, appealed from a judgment declaring that the plaintiff, Melanie B. Cahill, had perfected title to property in Snug Harbor, South Kingstown, Rhode Island by adverse possession. On appeal, Morrow, the record owner of the property, argued that the trial justice did not properly consider the effect of a 1997 letter from Cahill to Morrow’s husband asking if she could discuss purchasing the property. Morrow contended that the 1997 letter and two other inquiries made in 2002 extinguished the adverse-possession elements of hostility and claim of right because Cahill necessarily recognized that Morrow’s husband held superior title to the property. Morrow also requested the Court to review whether Cahill’s evidence met the clear and convincing standard of proof required for adverse possession claims.

The Supreme Court held that when there is no ongoing dispute between the parties, an offer to purchase negates the elements of hostility and claim of right and interrupts the accrual of an adverse-possession claim at that point. Here, because Cahill’s 1997 letter was not an attempt to make peace with Morrow’s husband as a way to avoid pending litigation, Cahill’s adverse possession claim to the property halted in 1997. The Court then established that an offer to purchase made after a claim is vested by statute does not automatically divest the claim already obtained. However, the Court also held that such post-vesting offers (not made to settle an ongoing dispute) still recognize the record owner’s superior title and are poignantly relevant to the adverse nature of possession during the statutory period. Here, although Cahill and her predecessor exhibited some degree of adverse use of the property for the twenty-six years prior to the 1997 letter, that offer and the two other purchase inquiries still impact whether these twenty-six years of possession were made under a claim of right. Accordingly, based on the Court’s opinion on offers to purchase, questions of fact remain whether Cahill established adverse possession by clear and convincing evidence.

The Court reversed the judgment of the Superior Court and remanded with instructions to reevaluate the record prior to the 1997 offer-to-purchase letter, permit the parties to supplement the existing record by offering any additional testimony or other evidence, and then issue an amended decision and judgment not inconsistent with the Court’s opinion.

Beacon Mutual Insurance Company v. Spino Brothers, Inc., No. 09-129 (January 18, 2010)

The defendant, Spino Brothers, Inc. (Spino Bros. or defendant), appeals from a Superior Court grant of summary judgment in favor of the plaintiff, Beacon Mutual Insurance Co. (Beacon or plaintiff). This declaratory judgment action stems from the underlying facts of Rodrigues v. DePasquale Building and Realty Co., 926 A.2d 616 (R.I. 2007), in which this Court held that Spino Bros. was contractually liable to indemnify DePasquale Building and Realty Co. (DePasquale) for tort damages under an agreement executed by those parties. Beacon, the defendant’s insurer, then filed a declaratory action seeking an adjudication that it was not required to indemnify the defendant, based on an exclusion provision in their insurance contract.

The defendant argued that it was not liable to DePasquale because it had not been negligent with respect to the underlying case and also that it had not assumed any contractual liability to DePasquale, rendering the exclusion provision inapplicable. This Court held that the defendant could not relitigate its liability toward DePasquale and also that the insurance contract clearly excluded coverage for contractual liability of the defendant. We affirmed the trial justice’s grant of summary judgment on both counts. 

In re Edwin H. Tetreault, No. 09-166 (January 13, 2011)

On certification from the United States Bankruptcy Court for the District of Rhode Island, the Supreme Court interpreted G.L. 1956 § 9-26-4.1, the homestead estate exemption statute, as it applied to the debtor, a devisee of a residuary interest in real property, who is a tenant in common and sole occupant of the property. First, the Court held that a devisee of real property under the residuary clause of a Rhode Island will may satisfy the ownership or possessory rights requirement enumerated in the homestead estate exemption statute, until that point when he or she is divested of that interest. Furthermore, the Court determined that a tenant in common, who is the sole occupant of a property, may be eligible for the homestead estate exemption. In construing the homestead estate exemption statute liberally in favor of debtors, the Court reasoned that the statute is intended to benefit tenants in common as well as sole owners, and that the statutory references to "family" in § 9-26-4.1(b) do not preclude the debtor from qualifying for the homestead estate exemption.

Next, the Court concluded that a general devisee of a residuary interest in real property does not have legal standing to occupy or intend to occupy property after the executrix has initiated a procedure to evict the devisee from the property based on the authority granted in an express power of sale in the testatrix’s will. The Court ruled that the debtor had been divested of his possessory interest in the property at the time he filed for bankruptcy. Once the executrix took affirmative steps to exercise her testamentary power of sale, the debtor no longer had legal standing to occupy the property against the will of the executrix and therefore was disqualified from exemption under the homestead estate exemption statute. Finally, the Court declined to address the fourth certified question.

Frederick W. Bonn v. Amanda Pepin et al, No. 09-71 (January 7, 2011)

After trial, a Superior Court jury awarded the plaintiff, Frederick W. Bonn, $70,848 for injuries suffered on October 22, 2003, in a motor vehicle collision involving the defendant, Amanda Pepin. Dissatisfied with the verdict, the defendant moved for a new trial on damages under Rule 59 of the Superior Court Rules of Civil Procedure, or in the alternative, for a remittitur. That motion was denied by the trial justice, and the defendant timely appealed.

Upon review of the judgment of the Superior Court, the Court observed that the tasks of the parties, their counsel, the jury, and the trial justice were made exponentially more complicated because the plaintiff had been involved in three additional accidents between the 2003 collision and a left shoulder surgery that he underwentin 2007. Because the issues of liability and actual cause largely were conceded by the defendant, the issue of proximate cause—as demonstrated or refuted by the testimony of the medical experts—burgeoned into the central issue contested. Predictably, starkly contradictory medical testimony was presented during the course of the trial. 

In affirming the judgment of the Superior Court, the Court held: (1) that the trial justice did not overlook or misconceive material evidence, and that he was not clearly wrong, and (2) that he engaged in the proper analysis (and a sufficiently documented analysis) when he independently passed upon the weight of the evidence and the credibility of the witnesses. Further, the Court said that it agreed with the analysis of the trial justice.

Leonard I. Lazarus v. William H. Sherman et al,No. 08-228 (January 6, 2011)

The defendants appealed from a judgment of the Superior Court declaring a provision of a trust contained in two wills to be unambiguous and to allow the plaintiff to withdraw principal from the trust without the consent of his sister, a defendant and also a beneficiary of the trust. The defendants also argued on appeal that the trial justice erred when he retracted, months later, a previous statement that he made in response to the defendants’ inquiry about the substance of a proposed final judgment at a hearing to address attorneys’ fees. They submitted to the Court that the entered judgment was not final because the statement about the possible inclusion in the final judgment of a requirement that the plaintiff and his sister each repay $75,000 to the estate was a holding necessary to resolve the issues raised.

The Supreme Court held that the provision of the trust unambiguously permitted the plaintiff to withdraw up to half of the principle of the trust without the consent of his sister. The Court reasoned that, in light of the entire will, particularly the division of the trust estate into equal amounts in trust for the benefit of the plaintiff and his sister, the testators’ did not intend for one beneficiary to have a veto power over the other in the withdrawal of principal. The Court also held that the trial justice did not hold that the parties were required to pay back $75,000 to the trust. The Court reasoned that he did not err when he refused to include such an order in the judgment because the complaint did not request resolution of a repayment issue. Therefore, the Court perceived no jurisdictional defect. Accordingly, the Supreme Court affirmed the judgment of the Superior Court. 

John J. Ryan v. City of Providence, et al, No. 09-311 (January 6, 2011)

The plaintiff John J. Ryan, a retired captain of the Providence Police Department, asks us to vacate a declaratory judgment of the Superior Court in which the trial justice held (1) that the city’s Honest Service Ordinance of the Providence Code of Ordinances (HSO) does not require that there be a criminal conviction before action can be taken to reduce or revoke a retiree’s pension, and (2) that any action taken by the city’s retirement board (the board) under the ordinance will be reviewed by the Superior Court with deference toward the board’s findings of fact.

In 2008, the board for the City of Providence served Ryan with notice of its intention to hold a pre-deprivation hearing to consider a reduction or revocation of his retirement benefits. The board alleged that Ryan engaged in several activities during his tenure with the police department that violated the city’s HSO. Ryan filed suit in Superior Court seeking declaratory judgment that the HSO requires an employee be convicted of or plead guilty or nolo contendere to a crime related to his public employment before the board can convene a reduction or revocation hearing; and further, that any action taken by the board be reviewed de novo by the Superior Court.

The Supreme Court vacated the judgment of the Superior Court. In doing so, it determined that Providence’s HSO is unambiguous and that it requires a criminal conviction for a crime related to one’s employment before the board can take action to reduce or revoke that employee’s pension. Specifically, the Court determined that the ordinance laid out specific convictions that constituted a failure to render honorable service and that, in doing so, the city intended to limit the applicability of the ordinance to employees so convicted. Because the Court determined that the HSO did not apply to Ryan, it did not go on to address the Superior Court’s standard of review.

Heritage Healthcare Services, Inc. v. A. Michael Marques, Director and Rhode Island Department of Business Regulation, No. 08-160 (January 6, 2011)

Beacon Mutual Insurance Company, Inc. (Beacon), a nonprofit public corporation chartered as a domestic mutual insurance company, was created by the Rhode Island General Assembly in the early 1990s in response to a crisis in the workers’ compensation insurance market. Beacon’s enabling charter has been amended from time to time, with the most recent amendments occurring in 2003 with the enactment of P.L. 2003, ch. 410 (repealing the former G.L. 1956 § 27-7.2-2). Arising from an ongoing civil action brought by Heritage Healthcare Services, Inc. (Heritage) against Beacon, Heritage has sought confirmation of its position that the phrase "lowest possible price," in Section 3 of Beacon’s charter, provides policyholders with a private cause of action against Beacon.

In 2006, the Department of Business Regulation ruled in response to a petition for declaratory relief that the phrase "lowest possible price" does not provide policyholders such as Heritage with a private cause of action. Under G.L. 1956 § 42-35-15 of the Administrative Procedures Act (APA), Heritage appealed that agency decision to the Superior Court, and in 2007 the Superior Court issued a decision that affirmed the Department of Business Regulation ruling. 

Heritage appealed, and the Supreme Court, under the APA, § 42-35-16, reviewed the question of law denovo. In affirming the judgment of the Superior Court, the Supreme Court opined that the phrase "lowest possible price" is clear within its context as a statement of policy, and that policy language such as this serves to clarify other substantive provisions of Beacon’s statutorily crafted insurance charter without creating substantive rights.

State v. Parrish Chase, No 09-52 (December 16,2010)

The defendant, Parrish Chase, appealed from a Superior Court order denying his motion to reduce sentence under Rule 35 of the Superior Court Rules of Criminal Procedure. On appeal, the defendant argued that he was entitled to the appointment of counsel in connection with the motion to reduce proceedings pursuant to Rule 44 of the Superior Court Rules of Criminal Procedure. The Supreme Court declined to read into Rule 44 a requirement that counsel be assigned to represent a defendant at a sentence-reduction hearing, explaining that a motion to reduce sentence is a posttrial proceeding and not a stage of the proceeding to which the procedural right to counsel under Rule 44 attaches.

The defendant also argued that the denial of his motion to reduce was improper. The Court held, however, that based on the record, the trial justice did not abuse his discretion in denying the motion to reduce.

Finally, the defendant challenged the constitutionality of the state manslaughter statute, arguing that the statute failed to recognize or distinguish his mental disability. The Court found that the defendant failed to provide any legal support for his argument and deemed the argument waived on account of inadequate briefing. Accordingly, the Court affirmed the order and remanded the case to the Superior Court.

State v. Nakeda Brown, No. 08-326 (December 15, 2010)

The defendant, Nakeda Brown, appealed from a judgment of conviction for one count of felony assault and one count of simple assault, both relating to a domestic altercation between the defendant and Waysaywhein Timbo. The defendant argued on appeal that the trial justice erred when he permitted the state to cross-examine the defendant about physically abusing Ms. Timbo in the past. The defendant also argued that the trial justice committed error by allowing a rescue technician to testify about a statement that Ms. Timbo made concerning the cause of her injuries. Finally, the defendant challenged the trial justice’s ruling to allow the state to question the defendant using a transcript of a telephone conversation, between the defendant and Ms. Timbo, that contained several "inaudible" designations.

The Supreme Court affirmed on all grounds. First, it held that the defendant’s objection at trial, to the state questioning the defendant about physically abusing Ms. Timbo in the past, was untimely and lacked an appropriate basis, and thus the defendant did not adequately preserve this issue for appeal. Second, the Court held that the trial justice correctly found that the rescue technician’s testimony, about a statement that Ms. Timbo made concerning the cause of her injuries, fell under the medical-diagnosis exception found in Rule 803(4) of the Rhode Island Rules of Evidence. Finally, the Court held that the trial justice did not abuse his discretion in overruling the defendant’s objection to the state’s use of a transcript of a telephone conversation that contained several "inaudible" designations.

Stafford J. King III v. NAIAD Inflatables of Newport, Inc., No. 09-141 (December 14, 2010)

NAIAD Inflatables of Newport, Inc. (NAIAD), engaged the law firm of Duffy & Sweeney, Ltd. (D&S) to defend it in a civil lawsuit brought in 2005 by the plaintiff, Stafford J. King, III. Soon, however, NAIAD became delinquent in its financial obligations to D&S. Concerned with both a large receivable and a looming trial date, D&S filed a motion to withdraw from the case. This motion was unopposed by the client or by opposing counsel. A justice of the Superior Court denied the firm’s motion. On the grounds of abuse of discretion by the hearing justice, the law firm timely appealed.

D&S filed a motion to withdraw based upon NAIAD’s failure to fulfill its financial obligations under the engagement agreement. Supported by an affidavit of counsel, the motion was properly certified and forwarded to all parties of interest in compliance with the Rules of Civil Procedure. Providing its client with ample notice, D&S made numerous requests for payments, sent reminder invoices, and warned NAIAD that D&S—based on a signed engagement agreement between the parties—would seek to withdraw as counsel if the client failed to bring the balance current. Further, D&S informed NAIAD that it would have the right to object before the Superior Court in the event that such a motion was filed. Denying the unopposed motion, the hearing justice cited Article V, Rule 1.16 of the Supreme Court Rules of Professional Conduct, and ruled that granting the motion would have a "materially adverse effect" on the interests of the clients.

In reversing the Superior Court’s denial of counsel’s motion to withdraw, the Supreme Court said that the hearing justice did not accord adequate weight to the hardship and substantial financial burden that would befall D&S if the law firm were required to continue in its representation of a nonpaying client. Moreover, the Court was of the opinion that the law firm’s request to withdraw was not presented at such a critical point in the litigation process that withdrawal would be detrimental to either the court or the client. 

State v. Leon Brown, No. 08-209 (December 14, 2010)

Leon Brown was convicted of assault with a dangerous weapon, as well as of assault of a police officer and resisting arrest. He was sentenced to twenty years in prison, with an additional ten-year sentence as a habitual offender. On appeal, the defendant argued (1) that the trial justice erred in denying his motion for judgment of acquittal because the evidence adduced at trial was not legally sufficient to sustain a conviction of robbery, for which the defendant was indicted; (2) that the trial justice clearly erred when she did not grant the defendant’s motions to strike and to pass the case following a witness’s testimony that the defendant said "I’ll get you" to the witness; (3) that an additional sentence should not have been imposed under G.L. 1956 § 12-19-21, the habitual criminal statute, because the requisite notice of intent to seek such a sentence was not timely filed. The defendant argued that his initial appearance in the Sixth Division District Court on August 18, 2004, on the robbery charge and his presentment as a probation violator of a felony sentence at about the same time constituted his arraignment, and that the state had forty-five days thereafter to file a habitual criminal notice. Because the notice was filed more than forty-five days from the initial appearance, the defendant asserted, the state missed its window of opportunity to invoke the habitual criminal statute as to him.

The Supreme Court affirmed on all grounds. First, it affirmed the trial justice’s denial of the defendant’s motion for judgment of acquittal because the evidence in this case, when viewed in the light most favorable to the state, was sufficient for the jury to have inferred beyond a reasonable doubt that the defendant committed a robbery. Second, the Supreme Court affirmed the trial justice’s denial of the defendant’s motions to strike and to pass the case as a result of a witness’s testimony that the defendant said "I’ll get you" to the witness. The Court held that the trial justice did not clearly err when she admitted the statement to provide context, and that the statement was not so inflammatory as to warrant a mistrial. Finally, the Supreme Court affirmed the trial justice’s imposition of an additional sentence upon the defendant as a habitual offender. The Court held that the triggering arraignment in this case occurred in the Superior Court on February 4, 2005, and not on August 18, 2004, the date of the defendant’s initial appearance in District Court. Thus, the state was acting well within the statutory time frame of § 12-19-21 when, on February 16, 2005, it notified the defendant that upon conviction he would be subject to an additional sentence as a habitual offender.

In re Dayvon G. et al, No. 09-131 (December 14, 2010)

The respondent appealed from a Family Court decree terminating her parental rights to her children, Dayvon and Selena, on the grounds of (1) the respondent’s chronic substance abuse, (2) the placement of the children with the Rhode Island Department of Children, Youth and Families (DCYF) for at least twelve months with no substantial probability that the children could return to the respondent’s care within a reasonable period of time, and (3) abandonment.

The Supreme Court affirmed the decree, holding that there is "abundant evidence" in the record to support the trial justice’s determination that the children had been in DCYF care for over twelve months and that there was not a substantial probability that the children would be able to return safely to the respondent’s care within a reasonable period of time. The Court did not address the other two grounds for the termination of the respondent’s parental rights.

State v. Christopher Marsich, No. 07-306 (December 13, 2010)

The defendant, Christopher Marsich, appealed from a conviction of one count of first- degree robbery, one count of use of a firearm while committing a violent crime, one count of possession of a firearm after previous conviction of a violent crime and from adjudication as a habitual offender. The defendant raised four grounds on appeal: (1) that the trial justice erred in denying his motion for continuance; (2) ineffective assistance of trial counsel; (3) that he should not have been adjudged a habitual offender; and (4) that his convictions violated the Double Jeopardy Clauses of the state and federal constitutions. The Court affirmed the judgment of convictions.

The defendant argued that the trial justice erred when he denied his motion for a continuance to secure an alibi witness. The Court held that the defendant had failed to satisfy the necessary criteria to show that this denial amounted to an arbitrary decision by the trial justice. The Court next held that the defendant’s claim of ineffective assistance of counsel was inappropriate for review on direct appeal.

The defendant’s third argument was that he should not have been adjudged a habitual offender in accordance with G.L. 1956 § 12-19-21. He argued that he did not receive sufficient notice and in addition that this Court should adopt a rule in which felonies more than ten or fifteen years old should not be considered for purposes of habitual-offender adjudications. The Court held that the defendant had waived his notice argument, but nonetheless held that the notice would have been deemed adequate had the issue been properly before the Court. It also held that it would apply the literal language of the statute and would not add in a limiting timeframe for felonies.

Lastly, the Court held that the convictions of use of a firearm while committing a violent crime (G.L. 1956 § 11-47-3.2) and first-degree robbery (G.L. 1956 § 11-39-1) were not double jeopardy violations because the General Assembly has explicitly authorized cumulative sentencing in accordance with § 11-47-3.2. 

In re Jermaine H. et al, No. 10-52 (December 13, 2010)

Jermaine Haney, the respondent, appealed from a Family Court decision that placed his four minor children in the care and custody of the Department of Children, Youth and Families because the trial justice found that his children were neglected and dependent as to him. The respondent argued to the Court that the Family Court trial justice should have recused herself from the trial because at an earlier probable-cause hearing she had made findings of fact by clear and convincing evidence, rather than at the lower standard that was required. The Court rejected this argument, holding that although a higher standard was used, this did not amount to bias or prejudice against the respondent.

The respondent also argued that there was insufficient evidence of neglect and dependency. The Court gave deference to the Family Court trial justice’s findings and found that there was legally sufficient evidence to support her findings of dependency and neglect. Specifically, there was evidence of substance abuse and domestic violence; and, because of this, she found that the children were at risk of being harmed.

State v. Alberto Heredia, No. 07-127 (December 13, 2010

The defendant, Alberto Heredia (Heredia), appeals from his conviction by a Providence County Superior Court jury of second-degree murder. Heredia contends that the evidence failed to establish beyond a reasonable doubt that he was responsible for the death of Edgar Ortega (Ortega), either as a principal or as an aider and abettor, and that, as such, the trial court erred in denying his motions for judgment of acquittal and his motion for a new trial.

The Supreme Court held that the trial justice did not err by denying the defendant’s motions for a judgment of acquittal. Viewed in the light most favorable to the state, as required when passing on a motion for a judgment of acquittal, the evidence presented at trial established that Heredia’s actions, at a minimum, were a substantial factor in causing Ortega’s death. As such, the defendant was not entitled to a judgment of acquittal.

Additionally, the trial justice properly denied Heredia’s motion for a new trial. Her written decision outlined the appropriate standard of review, passed upon the credibility of witnesses, and weighed all of the evidence. It is clear that the trial justice neither overlooked nor misconceived material evidence; therefore, her decision is entitled to great weight. Accordingly, the Court affirmed the judgment of conviction.

State v. Pedro Rodriguez, No. 08-98 (December 13, 2010)

Pedro Rodriguez (Rodriguez) appealed from a conviction of possession with intent to deliver cocaine, and knowingly possessing one ounce to one kilogram of cocaine while operating a motor vehicle. Rodriguez contended that the trial justice erred by denying his Super. Ct. R. Crim. P. 29 motion for judgment of acquittal, because the state failed to establish that he knowingly possessed contraband and, further, that he had the requisite intent to deliver cocaine.

The Supreme Court affirmed the conviction. The evidence, viewed in the light most favorable to the prosecution, was sufficient to establish that the defendant knowingly possessed cocaine and additionally possessed the requisite intent to deliver cocaine.

In re Daniel D. et al, No. 09-289 (December 9, 2010)

The respondent-father appealed from a judgment terminating his parental rights to his three sons. After a trial in Family Court, the trial justice found that the Department of Children, Youth and Families (DCYF) had established by clear and convincing evidence a primafacie case of abandonment as a result of the respondent’s lack of contact with his children for more than six months. Further, he found that it was in the best interests of the children that their father’s parental rights be terminated.

The respondent argued on appeal that the primafacie case of abandonment had been rebutted because he had intellectual disabilities and a language barrier that prevented him from fully understanding the termination proceedings and, as a result, prematurely was led to believe that he had lost his parental rights. Further, he contended that DCYF did not make reasonable efforts to reunify him with his three sons. Finally, the respondent implored the Court to explain how severing ties with his children could possibly be in their best interests.

The Supreme Court held that the trial justice did not abuse his discretion when he found by clear and convincing evidence that the respondent had abandoned his children for at least six months as required by statute and that termination was in the best interests of the respondent’s children, who were doing well in foster care. The Court acknowledged the respondent’s disability and the language barrier between him and DCYF, but it was satisfied that the trial justice was not clearly wrong when he found that the respondent had abandoned his children after living out of state and not directly contacting them for approximately a year and a half. The Court also noted that DCYF need not make reasonable efforts to reunify a family when the ground underlying the petition for termination of parental rights is abandonment. Finally, the Supreme Court recognized the tragedy inherent in cases involving termination of parental rights, but it held that the trial justice’s determination of the best interests of the children was supported by legally competent evidence. Accordingly, the Court affirmed the judgment of the Family Court terminating the parental rights of the respondent.

State v. Kevin H. Storey, No. 09-178 (December 3, 2010)

The defendant, Kevin H. Storey, appealed from his conviction for possession of a firearm after a previous conviction for a crime of violence (G.L. 1956 § 11-47-5); possession of methylenedioxy amphetamine ("Ecstasy") (G.L. 1956 § 21-28-4.01(c)(2)(i)); and possession of marijuana (§ 21-28-4.01(c)(2)(ii)). On appeal, Storey argued that the trial justice improperly denied his motion to suppress evidence obtained by a search warrant. He contended that the affidavit supporting the warrant did not provide requisite probable cause, nor did it describe the place to be searched with sufficient particularity. With regard to probable cause, Storey asserted that the two-month old, anonymous tip was stale, the trash-pull evidence obtained three days before the warrant application did not corroborate the tip, the criminal-background information included in the affidavit was irrelevant to the drug crime the police were investigating, and the shared occupancy of Storey’s residence was improperly omitted from the affidavit. With regard to particularity, Storey argued that the warrant was overbroad because it authorized an exploration of his entire single-family house, rather than isolating the search to singular rooms, and did not account for the second person who also lived there. 

Given the deference accorded to a magistrate’s determination of probable cause, the general preference for warrants, and the totality of the circumstances, the Supreme Court held that the trial justice did not abuse his discretion by affirming the magistrate’s decision to issue the warrant. Although the tip was anonymous and was received two months prior to the application for the warrant, the Court held that the contents of the trash pull refreshed the viability of the tip. The Court also held that the residue of cocaine and the twelve cut plastic bags collected from the trash pull provided sufficient evidence of drug distribution to corroborate the tip and establish a fair probability that illegal, drug-selling activities were ongoing at Storey’s residence. Although not drug arrests or convictions, the Court also determined that it was not constitutionally problematic for the affidavit to include a listing of Storey’s prior criminal record. Lastly, the Court was unconvinced that information about the shared occupancy of the residence was purposely or recklessly omitted from the affidavit to skew a finding for probable cause.

As for Storey’s particularity challenge, the Court held that the warrant apprised the executing police officers with a description so they could easily identify and ascertain the place to be searched, which was supported by probable cause. Because warrants authorize searches of places and not people, the Court held that it was not necessary for the magistrate to take into account who else was living at Storey’s residence when he authorized that place to be searched. Accordingly, the Court affirmed the judgment of the Superior Court.

Bliss Mine Road Condominium Association v. Nationwide Property and Casualty Insurance Company, No. 09-33 (November 1, 2010)

The defendant, Nationwide Insurance Property and Casualty Insurance Co. appealed from a Superior Court judgment in favor of the plaintiff, Bliss Mine Road Condominium Association. The plaintiff owns property insured under a commercial insurance policy issued by the defendant. That property was severely damaged in a storm on December 9, 2005.

The plaintiff initially brought suit after Nationwide asserted that a windstorm deductible in the insurance policy precluded any recovery for damage resulting from the December storm. After the jury reached a verdict for the plaintiff, the trial justice entered judgment for the plaintiff as a matter of law under Rule 50 of the Superior Court Rules of Civil Procedure.

On appeal, Nationwide argued: (1) that the Superior Court’s grant of a judgment as a matter of law in favor of the plaintiffs was improper; (2) that the instruction to the jury of the definition of windstorm was in error because the policy contemplated a windstorm accompanied by other weather events; (3) that the jury instruction was misleading to the resultant prejudice of Nationwide; and (4) that the denial of the motion for a new trial was in error. 

The Supreme Court affirmed the judgment under Rule 50. It determined that the term "windstorm" was ambiguous in the context of the policy. It went on to apply principles of contract interpretation to the plaintiff’s policy; construing the policy in favor the insured, the Court determined that a windstorm is a storm with high winds and little or no precipitation. Because the storm at issue included substantial precipitation, the Court concluded that judgment as a matter of law for the plaintiffs was proper.

State v. Robinson Berroa, No. 08-53 (November 1, 2010)

The defendant, Robinson Berroa, was convicted at a jury-waived bench trial on counts of (1) possession of a controlled substance with intent to deliver, (2) possession of one ounce to one kilo of a controlled substance, and (3) conspiracy to violate Rhode Island’s Uniform Controlled Substances Act, G.L. 1956 chapter 28 of title 21. The defendant’s convictions resulted from a November 6, 2003 traffic stop following a tip that a confidential informant provided about drug trafficking through T.F. Green International Airport in Warwick. 

The defendant was driving the vehicle that picked up two women traveling from the southwest United States. These women were discovered to be carrying cocaine in their purses. On appeal, the defendant contended that the trial justice erred in denying his motion for dismissal pursuant to Rule 29(b) of the Superior Court Rules of Criminal Procedure, because there was insufficient evidence to support either the two possession-based charges or the conspiracy charge. The Court agreed and vacated the conviction.

In vacating the conviction, the Court held that there was insufficient evidence to support a finding of guilt beyond a reasonable doubt. In reaching this holding, the Court opined that there was a lack of proof of any agreement to advance a conspiracy, and that the evidence supporting an inference of constructive possession was based upon speculation and conjecture that could just as easily promote an inference of the defendant’s innocence.  

WMS Gaming, Inc. v. David M. Sullivan, Tax Administrator of the Division of Taxation of the State of Rhode Island, No. 09-17 (November 1, 2010)

This case came before the Supreme Court as a petition for writ of certiorari filed by the petitioner WMS Gaming, Inc., under G.L. 1956 § 44-19-25. The petitioner sought review of a District Court judgment confirming the final decision and order of the respondent, the tax administrator of Rhode Island’s Division of Taxation. The final decision and order upheld the division’s assessment of a use tax against the petitioner on equipment, namely video lottery terminals (VLTs), which the petitioner manufactured and provided to the Rhode Island Lottery Commission (Lottery) by agreement. Specifically, the petitioner asked the Court to review whether the agreement between the parties was a license or a lease and, if a license, whether the petitioner engaged in a taxable use of its VLTs in Rhode Island. Finally, the petitioner requested the Court to determine whether this arrangement violated the Rhode Island Constitution, which the petitioner argued the District Court judge erroneously declined to address.

The Supreme Court held that the agreement between the Lottery and WMS was a license because it exhibited the indicia of a license. It was revocable, and privileged WMS to profit from VLTs in Rhode Island, an activity otherwise prohibited by law. The agreement was titled a "license agreement" and never referred to a lease or rental. The Supreme Court reasoned, moreover, that the substance of the agreement established that it was a license and not a lease because services were an essential component of the agreement rather than the provision of the VLTs alone. Further, the Court noted that the Lottery director had the statutory authority only to license a technology provider, not to lease VLTs. Finally, the Court held that the statutory compensation due to WMS was not a lease payment from the Lottery to WMS but rather a license fee in the form of a percentage of WMS’s net profits. The Court reasoned that absent the prohibition against lotteries except those operated by the state, WMS would be able to retain 100 percent of its profits. Therefore, for the privilege of bringing its terminals to Rhode Island and profiting from them, WMS had to pay for that privilege with a fee, which was the statutory amount excised from its net profits.

The Court next held that as a licensee, WMS engaged in a taxable use of the VLTs because it exercised sufficient control over them. The Court reasoned that WMS was liable for a use tax because it exercised powers incident to its ownership of the VLTs when it fulfilled the agreement by assisting in maintaining its VLTs, keeping its VLTs up-to-date with new games by installing software in the VLTs, and executing the yearly player promotions that it was obligated to develop. Finally, the Court held that the District Court judge did not err when he declined to address WMS’s constitutional question because it was not necessary to do so. The Court agreed with the District Court judge because the control necessary to establish a taxable use was separate and distinct from the operational control that the Lottery must exercise over lotteries conducted in Rhode Island. After reviewing the record, the Court perceived no indication that the Lottery ever ceased to have operational control of the VLTs in violation of the Rhode Island Constitution’s prohibition of lotteries except those operated by the state. Accordingly, the Supreme Court affirmed the judgment of the District Court.

State v. Tyrone R. Powell., No. 08-336 (October 29, 2010)

The defendant, Tyrone R. Powell, was presented to the Superior Court as a probation violator after he was arrested for the sale of crack cocaine to three undercover police officers. After a hearing conducted over three separate hearing dates, a justice of the court adjudicated the defendant a probation violator. The suspension of the remaining five years, six months of a previously imposed sentence was vacated.

On writ of certiorari, the defendant argued that the hearing justice erred in (1) denying the defendant’s request for a continuance to secure new counsel, and (2) in refusing the defendant’s request for the appointment of alternative counsel. The Court observed that the decision of a hearing justice to grant or deny a defendant’s request for a continuance to secure alternate counsel is left to the sound discretion of the hearing justice and will not be disturbed upon review absent a clear abuse of discretion. 

The Court concluded that the hearing justice exercised diligence in balancing the public’s interests and the presumption favoring a defendant’s right to counsel of choice. Finding no indication of an abuse of discretion by the hearing justice, the Court affirmed the order of the Superior Court lifting the defendant’s suspended sentence.

In re Charles L. et al, 09-206 (October 29, 2010)

 April L. appealed from a final decree of the Family Court terminating her parental rights to her children, Charles L. and Victoria L. The Department of Children, Youth and Families (DCYF) had a long period of involvement with April and her children because April suffers from mental illness that makes caring for her children difficult.

DCYF developed eight case plans (four for each child) over the course of two years prior to filing the petition for termination of parental rights. As part of those case plans, April had to improve her parenting skills, maintain stable mental health, refrain from violence, and cooperate with visitation plans. To achieve the goals identified in the plan, DCYF put April in touch with agencies providing a wide range of social services.

Despite her efforts, April was unable to achieve the stability necessary to be reunified with her children. She frequently stopped taking her medication, was abusive toward service providers, and often acted out in front of her children. 

In April 2006, DCYF filed a petition for the termination of her parental rights to Charles and Victoria. After a trial that took a year, the trial justice granted the petition, and April appealed.

April argued on appeal that her mental illness did not make her an unfit parent. The Supreme Court held that the trial justice did not err in finding that April was unfit. It noted that, despite April’s desire to be with her children, her inability to manage her health conditions, and thereby achieve stability, renders her incapable of caring for Charles and Victoria. Accordingly, the Court affirmed the decree terminating April’s parental rights to Charles and Victoria.

State v. Jack Ruffner, No. 09-99 (October 20, 2010)

The defendant, Jack Ruffner, appealed from an order denying his motion to reduce his sentence under Rule 35 of the Superior Court Rules of Criminal Procedure. Ruffner was convicted of second-degree murder and was sentenced to life in prison. To support his Rule 35 motion, the defendant argued that his good behavior and rehabilitative efforts while incarcerated, including completing several courses and earning his GED, warranted a reduced sentence. On appeal, Ruffner contended that the trial justice abused his discretion because he did not consider the defendant’s good behavior and rehabilitative efforts when he ruled on the Rule 35 motion. The Supreme Court held that the trial justice did not abuse his discretion when he denied the defendant’s motion to reduce and when he left the defendant’s good behavior and rehabilitative efforts for the parole board to consider in the future when the defendant was eligible for parole.

The Court determined that the trial justice did take the defendant’s good behavior and rehabilitative efforts into account, but found both unpersuasive to warrant reducing the defendant’s sentence in light of his past misbehavior out of prison and the severity of his crime. Therefore, the Court held that it was well within the trial justice’s discretion to leave consideration of the defendant’s good behavior and rehabilitative efforts to the parole board because inmates are expected to behave while incarcerated and the parole board appropriately may assess the defendant’s progress in prison. Accordingly, the Court affirmed the order of the Superior Court.