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THOMAS RUOTOLO and BONNIE RUOTOLO JENNIFER SOUSADENNIS SOUSA, ELLEN BRADY, SCITUATE REALTY INC., SCITUATE REALTY BRADY AGENCY, INC., JOHN DOE, ALIAS 1-5, d/b/a ABC, ALIAS 1-5, and XYZ, CORPORATION, ALIAS 1-5 JENNIFER SOUSA and DENNIS SOUSA ANTHONY E. MUSCATELLI, Individually and d/b/a INTERNATIONAL MAPPING & SURVEYING CORP., a/k/a INTERNATIONAL MAPPING AND SURVEYING, INC.; KENNETH REICHER; INTERNATIONAL MAPPING & SURVEYING CORP.; JOSEPH GERMAIN, individually and d/b/a NEW ENGLAND INFRASTRUCTURES, INC.; WE LEASE IT, INC.; JAMES FLYNN; and FLYNN SURVEYS COMPANY, No. 05-3702 (August 30, 2007)
IN RE: LAURETTE BORDUAS EIFRIG : PC/06-3872 and GILBERT KAHN v. CITY OF NEWPORT ZONING BOARD OF REVIEW : N.C. No. 05-0193 (AUGUST 17, 2007)
ROBIN C. BROWN, Administratrix
of the Estate of Wade C. Brown, Jr. v. THOMAS PICCOLO and KATHRYN
PICCOLO No: WC 04-0089 (Aug. 15, 2007)
LANPHEAR, J. Deborah L. Parker commenced this action against her former
employers and supervisors seeking recovery of damages for an alleged
violation of the Rhode Island Fair Employment Practices Act. Successful
in her request for back pay on the constructive discharge count, she now
moves for the award of attorneys’ fees and costs.
Heritage Healthcare Services, Inc. v. A. Michael Marques, in his
capacity as director of the Rhode Island Department of Business
Regulation, Rhode Island Department Of Business Regulation, and The
Beacon Mutual Insurance Company, No. PB 06-4420 (August 9, 2007) GIBNEY, J. Plaintiff Raymond LaBelle (“LaBelle”) seeks a money judgment from Defendant Malry L.P. d/b/a the Hi-Hat (“the Hi-Hat”) for breach of contract. The Hi-Hat defends this action on grounds of failure of consideration, unclean hands, and payment. The Defendant has also filed a three count counterclaim—breach of contract, misrepresentation, and unjust enrichment—for which it seeks compensatory damages, consequential damages, attorney’s fees, interest, and costs. Jurisdiction is pursuant to G.L. 1956 §§ 8-2-13 and 8-2-14. C.A. No.: PC 04-4077 (August 8, 2007) CYNTHIA M. GIFFORD V. RHODE ISLAND STATE HOUSING APPEALS BOARD, MEMBERS: STEVE OSTIGUY, CHARLES MAYNARD, CYNTHIA FAGAN, DONALD GOODRICH, ISADORE RAMOS, Ph. D., M. THERESA SANTOS, WILLIAM WHITE, and MARY B. SHEKARCHI, No. 06-653 (August 7, 2007) John Haronian v. Narragansett Zoning Board of Review and Ruth Mullen, No. 06-0106 (August 3, 2007) Before the Court for decision after a bench trial was Plaintiffs’ Count I, breach of fiduciary duty, and Count IV, determination and payment of the fair value of Plaintiffs’ 50% ownership interests in Billington Farms LLC (the LLC). Following the Plaintiffs’ complaint for dissolution and breach of fiduciary duty, the parties stipulated that the provisions of the “buyout statute”would apply to this dispute. G.L. 1956 § 7-1.2-1315 (formerly G.L. 1956 § 7-1.1-90.1). Therefore, in lieu of dissolution, this Court determined the “fair value” that Defendant Jackson Despres must pay to the Plaintiffs to purchase their ownership interests in the LLC.
The LLC was in the business of developing and constructing homes on a parcel of land in Cumberland, Rhode Island. Because the LLC had no equipment, employees, or a contractor’s license, the LLC utilized contracts with the related entities Marsh Builders, Inc. and Smithfield Peat Company. However, as of the valuation date, its only significant assets were 21 lots of land and some cash in a bank account. The Court found that “fair value” was the Plaintiffs’ pro rata share of the LLC. The LLC’s value was the price at which the entity would be sold in a hypothetical transaction between a willing buyer and a willing seller, neither of whom are under any compulsion to act. This was appropriately determined by using an asset-based approach as advocated by the Defendants. The Court rejected Plaintiffs’ invitation to use an income-based approach to valuation. However, the real estate appraisal relied upon by the Defendants was flawed, so the Court adopted an appraisal presented by the Plaintiffs’ expert.
On the breach of fiduciary duty claims, the Plaintiffs sought “lost profits” damages, or 50% of the profits expected from the continued development of the 21 lots after the valuation date, because they were “frozen out” of the LLC. However, the Court determined that such damages were inappropriate since the effect of the buyout statute was to terminate the Plaintiffs’ status as owners on the valuation date. Therefore, they were not entitled to profits continuing throughout the entity’s expected lifespan.
State of Rhode Island v. Joshua Withee, No. 02-3191 (July 30, 2007) IBRAHIM SALEH v. M. GEORGECARVALHO,RUSSELL J. FERLAND, RAYMOND M. GANNON DOUGLAS S. MCKINNON and GEORGE SHABO, in their capacities As members of the PAWTUCKET ZONING BOARD OF REVIEW, No.: 2006-0051 (July 27, 2007) Before this Court was an appeal from a July 13, 2006 decision of the Rhode Island Board of Regents for Elementary and Secondary Education (“Regents”). The Regents Decision affirmed (1) the termination of appellant from his position as a teacher in the Providence School Department and (2) the annulment of his teaching certificate. This case arises out of a classroom incident in which Mr. Dame closed a classroom door, the door contacted a student in the doorway, and the student suffered a laceration to his head.
In order to dismiss a teacher or to annul his teaching certificate, there must be “cause.” See G.L. 1956 § 16-11-4; § 16-13-4. The Hearing Officer found that Mr. Dame used profanity, inappropriately slammed a door into Student H, and induced that student to falsely report the cause of the accident. Although the testimony conflicted in some respects, the Court found that the conclusions of the Hearing Officer were based upon her determinations of the credibility of witnesses and were owed deference. Therefore, the conclusion that “cause” existed was not clearly erroneous. The appellant also argues that the various officials should have imposed lesser sanctions upon him. However, the findings of fact were significant in this case and reasonably called into question whether future students are safe in appellant’s care. Therefore, the decisions to dismiss and annul were not abuses of discretion. Sheila A. Jordan v. Rhode Island Department of Human Services, No. 06-2626 (July 6, 2007) William A. Hilley and Toni Lynn Hilley v. Stephen T. Lawrence, No. 03-0413 (June 29, 2007) In re: Ginger Collins, No. 96-2916 (June 29, 2007) Following their dissent to a merger with another company, the Plaintiffs petitioned under G.L. 1956 § 7-1.2-1202 to require R.I.S.A.T., Inc. to purchase their shares of stock in the corporation at a “fair value” determined by the Court. Section 1202(h) of that statute requires the Plaintiffs to surrender their shares to the corporation for notation on the shares that a demand for fair value has been made under the statute. If they fail do to so within 20 days of the demand, then the corporation has the option to terminate the shareholders dissenter’s rights under the statute, unless this Court “for good and sufficient cause shown” directs otherwise. It is undisputed that the Plaintiffs did not submit their shares within the 20 day notation period, and that the corporation sought to exercise its option to terminate.
The Court found that such statutes are generally construed in favor of the shareholder, and are only intended to protect third parties from unwittingly purchasing shares which are subject to a demand for fair value. Consequently, “good and sufficient cause” exists to excuse a delay in submitting the shares for notation when that delay is insubstantial and the corporation has not been prejudiced by that delay. In this case, the Court found that no prejudice had befallen the corporation due to the delay. The Court further found that any delay was insubstantial because it did not extend the valuation proceeding beyond the length of time contemplated by the statute. Because no prejudice had resulted from the insubstantial delay, the Court found “good and sufficient” cause to direct that the “fair value” of the Plaintiffs’ shares be determined according to the statute. Timothy Jackson v. State of Rhode Island, No. 99-1037 (June 25, 2007) Davol Square Jewelry Mart, LLC v. Narragansett Bay Commission, No. 03-2198 (June 14, 2007) Before the Court was the motion of Defendant McLaughlin & Moran, Inc. (Moran), pursuant to Super. R. Civ. P. Rule 12(b)(6), to dismiss Counts X and XII of Plaintiff C&C Distributors, Inc’s complaint for failure to state a claim upon which relief may be granted. C&C alleges that Moran tortiously interfered with its contract for the exclusive distribution of the Bass Ale brand of beer in Rhode Island by “accepting” the distribution rights from the supplier.
The Court found that Count XII of C&C’s complaint did not state a claim for tortious interference because merely “accepting” a subsequent contract was not an act of interference which caused harm to the plaintiff, even if Moran knew that its acceptance was inconsistent with the prior contract held by C&C. As to the declaratory judgment sought by C&C in Count X, the Court denied the motion to dismiss. If successful, C&C’s claims based upon the Beer Industry Fair Dealing Law, G.L. 1956 § 3-13-1 et seq., were such that Moran’s supplier could be precluded from selling the Bass Ale brand to Moran. Such a result would necessarily affect Moran’s rights, and therefore, it cannot be said that no relief could be granted against Moran on Count X. State of Rhode Island v. Carl White, No. 07-0042 (June 7, 2007) The Rhode Island Manufactured and Mobile Homes Act, G.L. 1956 § 31-44-3.1(a), (c), provides that an incorporated tenants association of a mobile home park is entitled to a right of first refusal, which entitles that association to match any offer to purchase the property from its owner. In September 2005, Everson Construction Inc. entered into an agreement with Chimera Inc. for the purchase and sale of the real estate containing the Davis Mobile Homes Park. The Tenants Association was not incorporated at this time. Later in September 2005, Everson attempted to convey the real estate to Chimera, but the deed contained a wholly incorrect description of the real estate. In November 2005, the Tenants Association incorporated and sought to exercise its purported statutory right of first refusal. In December 2005, Chimera and Everson caused a corrected deed, which properly described the real estate, to be executed and recorded The Court found that in September 2005, the Tenants Association did not exist as an incorporated entity, and therefore was not entitled to a right of first refusal. Moreover, the relevant statutory provision granted a right of first refusal only when there existed “a bona fide offer which the owner intend[ed] to accept.” In November 2005, when the Tenants Association was incorporated, there was no such because the offer had already been accepted, and had ripened into an enforceable contract. Therefore, the Tenants Association was not entitled to a right of first refusal, and the Court granted summary judgment in favor of the Defendants. Cynthia Richter v. Rhode Island Department of Human Services, No. 06-0648 (May 30, 2007) Tracy Rarick v. Deborah Tobin, Leeann Tobin and Gail Taylor, No. 00-6411 (May 25, 2007) National Refrigeration, Inc. v. Travelers Indemnity Co., No. 05-0107 (May 22, 2007) Ann Strauss Barlett v. Peter C. Fitts, No. 00-2002 (May 17, 2007) Joseph Baginski v. The Town of Johnston Zoning Board of Review, No. 05-4783 (May 17, 2007) Giacomo Romano v. Nancy M. Guzman, No. 04-0613 (May 16, 2007) In this negligence action, a reasonable jury could differ with respect to the conflicting expert testimony in this negligence action; consequently, defendant’s motion for a new trial is denied. Defendant’s motion for an additur also is denied, as the jury properly could have discounted from its calculation of damages medical expenses for injuries it considered unrelated to the automobile collision. Before the Court after a bench trial were various claims for damages and other relief arising out of the sale of a waste hauling business. The writings memorializing the transaction provided for a sale price of $3,403,843 which was paid in part with a promissory note for $2,683,843. The buyer sought adjustments to the stated purchase price based upon fraud or misrepresentations about the average monthly revenues of the business, and based upon a clause providing for adjustments based upon lost revenues within 90 days of the transaction closing. The Court found that the buyer did not rely on any statements of the seller and, therefore, the fraud or misrepresentation claim could not prevail. Moreover, the Court found that no misrepresentation of monthly revenues had occurred. The Court found that the buyer was entitled to a $95,000 adjustment in the purchase price due to lost accounts within 90 days of closing. The revocation of the seller’s corporate charter under G.L. 1956 § 7-1.2-1310(a)(3) did not prevent the seller from maintaining its suit on the promissory note. Finally, the Court found that any price adjustments did not excuse the non-payment of the obligations under the note. Therefore, the buyer was in default under the note and the seller was entitled to enforce its acceleration rights. Alan A. Nunes v. Samuel Celone, No. 05-0456 (May 10, 2007) Defendant sought to dissolve an attachment on his home pursuant to Section 9-26-4.1 of the General Laws, which provides for a homestead exemption of $300,000. Plaintiff objected on three grounds: (1) that Defendant had engaged in a fraudulent transfer within the meaning of the Uniform Fraudulent Transfer Act, Section 6-16-1 to 6-16-12, by converting non-exempt assets into exempt assets; (2) that the homestead exemption was inapplicable to “debts contracted” prior to the acquisition of the homestead estate; and (3) that the value of the home exceeded the allowable homestead exemption of $300,000. The Court declined to dissolve the attachment because it found that certain of the debts included in the judgment were contracted prior to the acquisition of the home, and that the value of the home was otherwise in excess of the allowable exemption limit. Therefore, the Court would allow the Plaintiff to proceed with the process of levy and execution in order to satisfy the debts contracted prior to the sale of the home. However, the Court ordered that any proceeds above that amount be placed into escrow pending determination of whether the debtor was entitled to payment of such funds as the proceeds of exempt property.
Christopher Young v. Louis E. Gelineau, et al, No. 03-1302 (May 10, 2007) Kenneth W. Thomae v. Columbia Management Advisors, Inc., No. 05-1331 (May 9, 2007) Before the Court was Defendant Columbia Management Advisors, Inc.’s (Columbia) motion for summary judgment with respect to all of the Plaintiff’s claims. The Plaintiff, brought claims for breach of contract, misrepresentation, promissory estoppel, and unjust enrichment. Plaintiffs’ claims arose from Columbia’s decision not to pay a performance bonus to Plaintiff when he resigned after the fiscal year ended, but before those bonuses were distributed. Columbia argued that any promise to pay a bonus was too vague to be enforceable. Plaintiff responded that a memoranda issued by Columbia’s manager had adequately defined the requirements to receive a bonus. Assuming arguendo that these requirements were part of the contract, however, the Plaintiff failed to demonstrate a genuine issue that he would be entitled to a bonus under those criteria. With respect to a “salary equalization” bonus, the Court found that an issue of fact existed as to whether Plaintiff must have remained employed until the bonuses were distributed, and this precluded summary judgment. The Court also found that Columbia was entitled to summary judgment on the misrepresentation, promissory estoppel, and unjust enrichment claims with respect to both payments. Plaintiff sought a declaratory judgment that State Procurement Regulation 8.11.2, which addresses the use of alternative construction management methods, was invalid because it allegedly conflicted with G.L. 1956 § 37-2-39. Plaintiffs’ complaint also addressed the use of a particular management method called “construction management at risk” (CMAR) in a building project at URI which was recently awarded to Defendant Gilbane Building Company by the Department of Administration. The Court found that the Plaintiff had standing to challenge the validity of the regulation, and that the regulation was invalid because it purported to allow methods for construction contracting management, other than a general contractor, without identifying the methods which are deemed feasible. Gilbane also brought a motion to dismiss, or in the alternative, for summary judgment to the extent that the Plaintiff’s complaint addressed the URI project. The Court found that genuine issues of fact remained as to whether Lusi had brought its protest within the time periods required by § 37-2-52(b), and whether the Department of Administration’s actions amounted to a palpable abuse of discretion. Therefore, the Court denied Gilbane’s motion.
Terrence M. Goodwin v. Fuji Electric Co., LTD, alias DEF Corporation, et al, No. 02-3105 N & M Properties, LLC v. The Town of West Warwick, No. 06-0894 (April 19, 2007) The Plaintiffs are a group of employers which hold workers compensation insurance policies from the Defendant. They seek to be certified as class representatives of similarly situation employers with claims against Beacon. The Plaintiffs have sought to compel Defendant to produce a draft market conduct report, which was prepared pursuant to an examination by the Department of Business Regulation (DBR), and was transmitted to the Defendant. The Court found that the Examination Statute, G.L. 1956 § 27-13.1-1 to 27-13.1-7, did not grant Beacon a privilege that would prevent it from producing the report to the Plaintiffs. However, the Court found that a deliberative process privilege in favor of the DBR prevented the Plaintiffs from obtaining the report before the examination process had concluded, even if they sought it from Defendant. Before the Court were various motions for summary judgment or partial summary judgment arising from the alleged breach of a warranty clause in a contract for the sale of fiber optic cable. The Court found that the Plaintiffs’ claims were not barred by the statute of limitations because the contract for sale included a warranty extending to future performance within the meaning of G.L. 1956 6A-2-725(2). The Court also found that no material issues of fact existed as to the following issues: (1) the parties to the contract had incorporated by reference a warranty that the fiber optic cable will be designed to withstand aggressive environmental conditions; (2) alternatively, the warranty relative to environmental conditions became a part of the contract when Defendant FI Projects, Inc. failed to object to its terms; (3) the cable had failed due corrosion caused by the environmental conditions, and therefore the warranty was breached. The Court found that the contractual liability could not be attributed to Defendant Alcoa Fujikura Ltd. on a theory of successor liability because there was no showing that it paid less than adequate consideration when it purchased the assets of the transferor corporation. The Court found that material issues of fact precluded summary judgment in favor of any party on the Plaintiffs’ claims for piercing the corporate veil and attributing liability to Cookson America, Inc. and Cookson Group, plc. For the same reasons, the Court denied the motions to dismiss for lack of personal jurisdiction by these Defendants. On the Plaintiffs’ claims for fraudulent transfer and tortious interference with contractual relations, the Court found that material issues of fact remained which precluded summary judgment in favor of Cookson America, Inc. and Cookson Group, plc. Ricci Drain-Laying Sales, Inc. and Christy's Auto Rentals, Inc., No. 99-5986 (April 11, 2007) State of Rhode Island v. Kenneth S. Rice, No. 96-0257 (April 10, 2007) Arnold Shorrock v. Jonathan Scott, No. 03-0329 (April 10, 2007) Carol Baker v. Rhode Island Department of Business Regulation, et al, No. 04-2600 (April 5, 2007) West Reach Estates Association v. Hugh Collard Joan C. Pease Collard, No. 06-315 (April 5, 2007) The State of Rhode Island, by and Through Its Attorney General Patrick C. Lynch; and The Employees' Retirement System of Rhode Island, by and Through Its Chairman, Paul J. Tavares v. Marjorie R. Yashar, No. 06-1866 (March 21, 2007) AMENDED Liduina Madruga v. State of Rhode Island, No. 06-2776 (March 14, 2007) Alan A. Nunes v. Samuel Celone, No. 05-0456 (March 9, 2007) Defendant sought to dissolve the attachment which had been placed on his automobile, claiming that the car was exempt from attachment under G.L. 1956 § 9-26-4(13). The Plaintiff objected to dissolving the attachment, arguing that the Defendant had violated the Uniform Fraudulent Transfer Act, G.L. 1956 § 6-16-4(a)(1) by converting non-exempt assets to exempt assets in anticipation of the present lawsuit. The Court found that, even if the Plaintiff were successful in proving that a fraudulent transfer occurred, the Court did not have the power to disregard the exemption statute. Therefore, the Court ordered that the attachment be dissolved. Anthony DeCiantis v. State of Rhode Island, No. 98-0899 (March 7, 2007) Mary Irene Shepard v. Harleysville Worcester Insurance Company, Inc., No. 06-0084 (March 1, 2007) Jaykee Kromah v. Rhode Island Department of Human Services, No. 06-0260 (February 28, 2007) Gary A. King v. David M. King, and Carole M. King, No. 04-1539 (February 12, 2007) Frank Cabral v. Zoning Board of Review of the City of Warwick, No. 06-0239 (February 7, 2007) State of Rhode Island v. John A. Celona, No. 05-1111 (January 29, 2007) Lime Rock Fire District, Inc. v. Iaff, Local 3023, AFL-CIO, No. 05-4149 (January 26, 2007) The Petitioner sought Summary Judgment on its Petition for Declaratory Judgment, arguing that its firefighters are no longer represented by the Defendant because of the union’s dormancy and lack of representation among the Petitioner’s employees. The Union sought to dismiss the Petition for lack of subject matter jurisdiction. The Union argued that this Court was without jurisdiction because Lime Rock had not exhausted all administrative remedies at its disposal. The Court denied Defendants Motion to Dismiss, and granted Petitioner’s Motion for Summary Judgment. The Court found that, based on all of the evidence submitted by the parties, the Petitioner was entitled to autonomy, the Defendant no longer had a representational relationship with Petitioner, and that the actions of the Petition did not amount to an unfair labor practice. Domenic D'Agostino v. NANCY D’AGOSTINO, HENRY D’AGOSTINO, JR., LINDA D’AGOSTINO, JANET D’AGOSTINO, PETER R. D’AGOSTINO, LOUIS D’AGOSTINO and ALAN D’AGOSTINO NATIONAL WRECKING CO., INC., Alias,and John Doe Corporations A through E, and PROVIDENCE CRANE SERVICE COMPANY, INC., INDUSTRIAL WRECKING COMPANY, INC.,ALLEN LUMBER COMPANY, and ALLEN REALTY COMPANY, INC. No. 04-6804 (January 26, 2007) After reviewing all of the evidence and assessing the credibility of the witnesses in this inter-family dispute, the Court found that the family established a partnership that included various businesses and properties. The Court further found that the partnership had dissolved by operation of law, and ordered an accounting and equitable distribution in accordance with § 7-12-51. Should the accounting reveal any conversion, the converted property must be returned to the rightful owners. The plaintiff’s prayers for the imposition of a constructive trust, resulting trust, reformation of a deed and claim for adverse possession are denied. The counterclaimants did not prove their fraud and misrepresentation claim. Furthermore, their claim for punitive damages and attorney’s fees is denied. Defendants brought motions to dismiss under Rules 12(b)(1) and 12(b)(2) for lack of subject matter jurisdiction and lack of personal jurisdiction, respectively. Plaintiff also brought a motion for summary judgment under Rule 56. Plaintiff claims that under three agreements with the Defendants, it is entitled to indemnification of costs that it incurred while defending a Connecticut lawsuit for bad faith handling of a workers compensation insurance claim. The Court found that it clearly has subject matter jurisdiction under G.L. 1956 §§ 8-2-14 and 9-30-1. Therefore, it denied the Rule 12(b)(1) motion. The Court granted the Rule 12(b)(2) motion, with respect to one defendant, because under Rhode Island law an unincorporated association is not a proper party to a lawsuit. Rather, under § 9-2-12, a plaintiff must sue either the officers or members of the association as representatives of that association. On the Plaintiff’s summary judgment motion, the Court rejected Plaintiff’s assertion that the indemnification clauses unambiguously require the Defendants to indemnify Plaintiff. Based on a reading of the entire agreement, and not just one clause, there exists a genuine issue of fact as to whether the costs to be indemnified were “loss adjustment expenses” covered by a “servicing carrier allowance.” If so, those costs are not separately indemnified. Since the terms are undefined, the contracts are ambiguous and extrinsic evidence is required to give those terms meaning. In this appeal from the Department of Labor and Training (DLT), this Court finds that the findings and conclusions in this case were legally insufficient and do not enable this Court to conduct an adequate review. Furthermore, by not allowing twenty days to pass before entering his order in accordance with § 5-70-22(b), the DLT Director denied plaintiff its due process. This error was harmless because the Court is remanding the case for detailed findings of fact and conclusions of law; whereupon, plaintiff may appeal to the Director in accordance with § 5-70-22(b). James Mullowney, et al v. William Masopust, et al, No. 05-212 (January 16, 2007) John Lombardi v. Psw, Inc., No. 06-1311 (No. 06-1311 (January 12, 2007) Before the Court are various motions related to the fee requests of special counsels Richard Sinapi and David Steiner, who were retained by the Receiver to prosecute a contingent fee lawsuit on behalf of the receivership. After settling the lawsuit for $1,060,000, the counsels moved for payment of the fees and costs of prosecuting the lawsuit: Sinapi claimed a 40% contingent fee, and Steiner claimed 10%. A group of creditors have objected to the payment of fees to Sinapi and Steiner. They argue with respect to Sinapi that his contingent fee agreement should be read to exclude certain amounts from the definition of “damages,” so that the basis of his 40% contingent fee is not the whole $1,060,000. The Court disagreed and found that the agreement was unambiguous and that the term “damages” applied to the entire settlement amount. With respect to Steiner, Creditors argue that his contingent fee applied only to recoveries from the “First Data” defendant, and since “First Data” did not contribute any money to the settlement funds, he is not entitled to any recovery. The Court found that retainer letter was ambiguous as to his entitlement to fees. Therefore, the Court ordered that an evidentiary hearing be held on Steiner’s entitlement to fees. In addition, the Court also ordered that Steiner respond to certain discovery requests made by the Creditors that were relevant to the retainer agreement.
Bank Rhode Island v. Maxitforme, Inc., No. 06-1626 (January 11, 2007) Russell J. Aubin, D.O. (“Appellant”), an anesthesiologist, appealed from a decision of the Rhode Island Board of Medical Licensure and Discipline (“Board”) revoking his license to practice medicine, because he sexually molested a patient in his care. The Board determined that the Appellant’s actions constituted unprofessional conduct in violation of G.L. 1956 § 5-37-5.1, both in general and specifically subsections (7), (19), and (30) thereof. In this appeal, the Superior Court found that G.L. 1956 § 5-37-5.2(e)(3) did not violate the Appellant’s constitutional due process right by not requiring the members of a hearing committee to observe personally all testimony during the agency hearing. Section 5-37-5.2(e)(3) preserved the Appellant’s right to due process by providing for a hearing officer to act as a fact-finder and by requiring hearing committee members to read the hearing transcripts and review all evidence. Additionally, the hearing officer did not abuse her discretion by admitting the testimony of a former patient of the Appellant. This patient claimed that the Appellant committed a second, uncharged act of sexual molestation during a surgery in Massachusetts. The hearing officer had the discretion to allow the second patient’s testimony pursuant to G.L. 1956 § 42-35-10(a) or as an exception provided under Rule 404(b) of the Rhode Island Rules of Evidence. Finally, the Superior Court held that a “not guilty” verdict at a subsequent criminal trial arising out of the same incident had no bearing on this appeal, because disciplinary proceedings are civil in nature and designed primarily to protect the public. Therefore, the Superior Court affirmed the Board’s decision, finding it based on reliable, probative, and substantial evidence in the record.
Plaintiff subcontractor sought Summary Judgment on a Petition for a Mechanic’s Lien. The Court found that, based on the evidence submitted by both parties, there was a disputed and genuine material issue of fact, and thus the case was not ripe for Summary Judgment.
As Super R. Civ. P. 4 does not apply to administrative agencies, the Board did not err in failing personally to serve the Appellants. The Board mailed notice to the Appellants at their address of record. Because the Appellants breached their legal duty to notify the Board of an address change, they should not now be permitted to complain that they did not receive notice of the hearing. The issue of notice is dispositive; thus, the error, if any, in discussing Houghton’s possible future criminal prosecution was harmless and probably waived. Bridget Generis v. Foster Cove Improvement Association, No. 01-0376 (January 4, 2007)
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