PUBLISHED
DECISIONS 2010
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W. Michael Sullivan, in his capacity as
Director of the State of Rhode Island Department of Environmental
Management v. Town of Coventry and Town of Middletown, No.
09-6217 (March 17, 2010)
East Providence School Committee, Mario
Cirillo, in his capacity as Superintendant of Schools, The City of
East Providence; through it sfianance Director, James mcDonald;
Joseph S. Larisa, Jr., Robert E. Cusack, Brian G. Coogan, Valerie A.
Perry, and Bruce Ditraglia, in their capacities as Members of the
East Providence City Council; Joseph S. Larisa, Jr., in his capacity
as Mayor of the City of East Providence; and Richard Brown, in his
capacity as Manager of the City of East Providence v. East
Providence Education Association; Rhode Island stat Labor Relations
Board; Walter J. Lanni, Frank J. Montanaro, Gerald S. Goldstein,
Ellen L. Jordan, John R. Capobianco, and Elizabeth S. Dolan, in
their capacities as Members of the Rhode island Board of Regents for
Elementary and Secondary Education; Robert G. Flanders, Jr., Patrick
A. Guida, Colleen A. Callagan, May Beretta, Betsy P. Shimbert, Frank
Caprio, Anna Cano-Morales, Angus M. Davis, and Karen Forbes, in
their capacites as Members of the Board of Reegents for Elementary
and Secondary Education; Rhode Island Department of Elementary and
Secondary Education; and Deborah A. Gist, in her capacity as
Commissioner of Elementary and Secondary Education, No. 09-1421
(March 15, 2010)
Vincent Mesolella and CVDDI, LLC v.
Michael Phillips, in his capacity as the Town of Smithfield Town
Planner; Randy R. Rossi, in his capacity as the Town of Smithfield
Finance Director; John Steere, in his capacity as Chairman of the
Town of Smithfield Planning Board; Kevin Gendron, Michael Moan,
Stephen Davis, Bruce Baumier, David Tassoni, Catherine Lynn, and
Rudy D'Agostino, in their capacities as Members of the Town of
Smithfield Planning Board, No. 09-4060
Kenneth Panciera and Joanne
Panciera v. Ashaway Pines, LLC, No. 07-0836 (March 12, 2010)
(Amended Decision)
Everett McCain v. The Town of North
Providence, by and through its Mayor, Charles Lombardi, No.
09-4878 (March 11, 2010)
Joseph F. Alessi v. Bowen Court
Condominium and Janet O'Rourke in her capacity as President, Bowen
Court Condominium Assocation, No. 03-0235 (March 10, 2010)
A.F. Homes, LLC v. John Ward, in
his capacity as the Town Finance Director of the Town of Lincoln,
and Albert V. Ranaldi, Jr., in his capacity as the Town Planner and
the Administrative Officer to the Planning board of the Town of
Lincoln, No. 09-1145 (mARCH 8, 2010)
Keven A. McKenna, P.C. and Keven A.
McKenna v. Sumner Stone, et al, No. 09-4179 (March 4, 2010)
America Condominium Association, Inc.,
Capella South Condominium Association, Inc., and Harbor Houses
Condominium Association, Inc. v. IDC Inc., IDC Properties, Inc., and
Thomas R. Roos, No. 99-0232 (March 1, 2010)
City of Woonsocket v. John R. Dionne;
Charles Baldelli, in his Capacity as Chairman of the Woonsocket
Personnel Board; James Carney, in his Capacity as a Member of the
Woonsocket Personnel Board; and Constance Gauthier, in her Capacity
as a Member of the Woonsocket Personnel Board, No. 08-0400;
Consolidated with John R. Dionne v. City of Woonsocket and Carol
Touzin, in her Capacity as City Treasurer, No. 08-2805
(February 26, 2010)
Hope Drury Goddard, Margaret G. Leeson,
R.H. Ives Goddard III, Moses B.I. Goddard, Hope Leeson Mills, Robert
Leeson, III, Margaret Hazard leeson, Benjamin Dix Leeson, Charlotte
I. Goddard, Thomas P.O. Goddard, Jr., Elizabeth G. Goddard, Caroline
H. Goddard, Jesse Goddard, and Benjamin Goddard, as Beneficiaries of
a certain trust established under the Will of Margaret H. Goddard;
and William H.D. Goddard and Thomas P.I. Goddard, as Co-Trustees and
Beneficiaries of a certain trust established under the Will of
Margaret H. Goddard v. Bank of America, N.A., as Trustee of certain
trust established under the Will of Margaret H. Goddard, No.
09-6232; Hope Drury Goddard, et al v. Bank of America, N.A., et al,
No. 09-6233; Hope Drury Goddard, et al v. Bank of America, N.A., et
al, No. 09-6234; Hope Drury Goddard, et al v. Bank of America, N.A.,
et al, No. 09-6235 (Filed February 24, 2010)
Charles S. Faber and Karen M. Faber v.
Francine A. McVay a/d/a Francine A. Ledo; Wickford Insurance Agency,
Inc.; Lauren Albright; Mastors & Servant, LTD; Judith Gordon;
Marketing Associates Insurance Agency, Inc.; Chubb Group of
Insurance Companies a/k/a Chubb Indemnity Insurance Company and
Chubb National Insurance Co.; Jane Doe; and ABC Corporation, No.
09-4512
In re Mark Jackson Grand Jury, No.
09-6902 (February 23, 2010)
Cathy Fedora v. Bruce Werber, D.P.M.;
Roger Williams Medical Center; The Miriam Hospital; Siamak
Barkhordian, M.D.; Basmaa Ali, M.D.; Anthony L. Moulton, M.D., Kamel
Norteye Addo, M.D.; Darren P. DiIulio, D.P.M; Foot & Ankle Institute
of New England, Inc.; Providence Surgical Care Group; Seacoast
Thoracic and Cardiovascular Surgery, Inc.; John and Jane Doe, M.D.,
Alias; and John Doe Corporation, Alias, No. 07-6053 (February
22, 2010)
James Gardner v. Town of Charlestown,
No. 08-0937 (February 22, 2010)
One Athenaeum Row, Inc. Association
v. John M. Kelly, Arthur Strother, Andrea Underwood, Anthony
Catuaro, and Daniel Varin, all in their official capacities as
members of the City of Providence Zoning Board of Review, No.
07-1377 (February 22, 2010)
Athenaeum Row Condominium Association
v. John M. Kelly, Arthur Strother, Andrea Underwood, Anthony
Catuaro, and Daniel Varin, all in their official capacities as
members of the City of Providence Zoning Board of Review, No.
07-1378 (February 22, 2010)
In re Irving Briggs Petition of A.T.
Wall, Director, Rhode Island Department of Corrections, No.
05-5598 (February 19, 2010)
Frances Gammell-Roach v. John Howland
and Bradford Soap International, Inc., No. 09-3501 (February 16,
2010)
The Court denied
a Super. R. Civ. P. Rule 12(b)(6) motion to dismiss brought by
Defendants, John Howland (“Howland”) and Bradford Soap
International, Inc. (“BSI”) against Plaintiff Frances Gammell-Roach.
In her complaint, the Plaintiff has alleged that Howland has engaged
in a long course of conduct which constitutes an oppressive
freeze-out and a breach of the fiduciary duty owed by Howland to the
Plaintiff. Defendants argued for dismissal on Counts I, II, and V
of the complaint asserting that such claims are derivative in nature
and Plaintiff has failed to plead a derivative action as required by
Super. R. Civ. P. Rule 23.1. However, the Court held that the
allegations in the Plaintiff’s complaint concern conduct of the
Defendants which, when considered as a whole, could constitute an
oppressive “freezing out” of the Plaintiff as a minority
shareholder, as set forth by the Rhode Island Supreme Court in
Hendrick v. Hendrick, 785 A.2d 784, 791-92 (R.I. 2004).
Therefore, Plaintiff has not failed to plead a derivative action
under Rule 23.1, but rather has properly stated an individual claim
for breach of fiduciary duty, for which she will be permitted to
prove facts entitling her to relief.
A.F. Homes, LLC v. John Ward, in his
capacity as the Town Finance Director of the Town of Lincoln, and
Albert V. Ranaldi, Jr., in his capacity as the Town Planner and the
Administrative Officer to the Planning Board of the Town of Lincoln,
No. 09-1145 (February 16, 2010)
David A. Marcantonio, D.D.S. v. Rhode
Island Department of Health, Health Services Regullation, Board of
Examiners in Dentistry, No. 08-6873 (February 12, 2010)
John L. Sweeney, and Theordore A.
Platz, III, v.
Christine R. Reed, No. 05-0565 (February 12, 2010)
Plaintiffs filed a complaint against Defendant, seeking
payment of Defendant’s one-third share of a promissory note signed
by all three parties, who were members of an LLC. The promissory
note, executed on behalf of the LLC, was to be used as working
capital for the operation of a restaurant. Defendant counterclaimed,
alleging that Plaintiffs breached their fiduciary duties towards
her, and thus she was not liable for the debt.
Following a non-jury trial, this Court found that
Defendant failed to prove that Plaintiffs breached any of the
statutory fiduciary duties enumerated in the Rhode Island Limited
Liability Company Act, G.L. 1956 § 7-16-17. The Court found that
Defendant signed the note, and therefore, she was liable to
Plaintiffs in the amount of $22,376.39.
Felicia Howard and Michael Hamel v.
Greenwood Credit Union, No. 07-0928 (February 12, 1020)
The Court granted
a motion to dismiss based upon lack of subject matter jurisdiction
pursuant to Super. R. Civ. P. Rule 12(b)(1) on behalf of the
Defendant, Greenwood Credit Union. Felicia Howard and Michael Hamel
(collectively, “Plaintiffs”), individually and on behalf of a
yet-to-be-certified class of persons similarly situated, filed an
amended class-action complaint (“Complaint”) against the Defendant,
seeking statutory damages and injunctive relief for alleged
violations of G.L. 1956 §§ 6A-9-614, 616, and 625. The Court denied
Plaintiffs’ request for injunctive relief finding that in regard to
allegedly defective UCC notices already received by the Plaintiffs,
Plaintiffs are not at risk of suffering any immediate or imminent
irreparable harm for which there is no adequate remedy at law.
Consequently, Plaintiffs’ Complaint did not fall within the equity
jurisdiction of the Superior Court. Additionally, the Court held
that since the Defendant was a third party financier, the
appropriate formula to assess statutory damages under § 6A-9-625 is
the credit service charge formula. Accordingly, Plaintiffs’
possible damages, calculated using such provision, can total only
$4,906.66, an amount below the jurisdictional threshold of this
Court.
William O. Araujo v. State of Rhode
Island, No. 09-0004 (February 12, 2010)
Petitioner submitted to the Superior Court an application
for post-conviction relief pursuant to Rule 11 of the Superior Court
Rules of Criminal Procedure. The Superior Court granted
Petitioner’s application because it determined Petitioner did not
understand the nature of the charge to which he pled nolo contendere.
The Court vacated the plea because the plea colloquy from
Petitioner’s 1994 burglary charge lacked any indication that the
Petitioner knew and understood the elements constituting the crime
of burglary. Specifically, the Court noted that the judge accepting
Petitioner’s plea never explained to Petitioner the essential
elements of the charge, the judge never verified that Petitioner’s
attorney explained the elements of the charge to him, and finally
Petitioner never admitted to facts that constituted the crime of
burglary.
Beverly Haviland v. Brown University,
No. 05-4270 (February 11, 2010)
Kenneth Panciera and Joanne Panciera v.
Ashaway Pines, LLC, No. 07-0836 (February 9, 2010)
Town of Johnston v. International
Brotherhood of Police Officers, Local 307, No. 08-7062 (February
8, 2010
Town of Johnston v. International
Brotherhood of Police Officers, Local 307, No. 08-5956 (February
8, 2010
VVSI, Inc. a Rhode Island Business
Corporation v. The City of Newport City Council, Charles Y. Duncan,
Justin S. McLaughlin, Mary C. Connolly, Stephen C. Waluk,
Jeanne-Marie Napolitano and Kathryn E. Leonard, individually, Laura
Sitrin, Finance Director, and Edward LaValle, City Manager, No.
08-0530 (February 8, 2010)
Kevin M. Sheehan v. Town of
North Smithfield, by and through its Finance Director, Richard F.
Erickson, et al, No. 02-1647 (February 2, 2010)
Plaintiff, a former principal, claimed that the Town,
through its School Committee, breached a verbal contract with him
regarding salary and fringe benefits promised at his hiring and
engaged in fraud, negligent misrepresentation, conspiracy and aiding
and abetting to avoid paying him his due. Plaintiff sought
compensatory and punitive damages.
After a non-jury trial, this Court denied all Plaintiff’s
Counts—Breach of Contract, Promissory Estoppel, Fraud, Negligent
Misrepresentation, Conspiracy, Aiding and Abetting, and Punitive
Damages—with the exception of his request for reimbursement of four
vacation days pursuant to an implied contract theory emanating from
a then-currently enacted School Committee policy. Because Plaintiff
accrued, but did not use four vacation days during his final year of
employment with the Town, this Court held that Plaintiff was due
payment for those four days pursuant to the School Committee
policy.
For the remaining Breach of Contract and Promissory
Estoppel Counts, this Court held that Plaintiff could not rely on
alleged promises regarding salary and benefits from School Committee
Members or the Superintendent, who all lacked actual authority to
make binding contracts. For the Fraud and Negligent
Misrepresentation Counts, this Court found Plaintiff did not prove
that Defendants or their agents made statements knowing their
falsity and with the intent to deceive Plaintiff, nor did Plaintiff
show that he justifiably relied on statements from individuals
lacking actual authority. Finally, for the Conspiracy and Aiding
and Abetting Counts, without proving the existence of a valid
underlying tort theory or the joint assent to commit an underlying
tort, Plaintiff did not establish the claims derivative of Fraud and
Negligent Misrepresentation. Finding that the Town’s actions did not
rise to a level of criminality, this Court denied Plaintiff’s
request for punitive damages.
Tidewater Realty, LLC v. State
of Rhode Island and Providence Plantations, State of Rhode Island
Department ofEnvironmental Management, and Rhode Island State
Properties Committee, No. 05-3316 (February 2, 2010)
Furey Roofing and Construction Company,
Inc. v. Emplyers Mutual Casualty Company, No. 09-0685 (February
1, 2010)
State of Rhode Island v. Paul Miller,
No. 09-0223 (January 29, 2010)
State of Rhode Island v. Joseph Carter,
No. 09-0454; State of Rhode Island v. Timothy Poland, No.
09-0455 (January 29, 2010)
State of Rhode Island v. David Norman,
No. 08-1791 (January 28, 2010)
Barbara Ramirez Johnston v. Estate of
Raymond D. McCarthy and Ruth McCarthy, in her capacity as Executrix
of the Estate of Raymond D. McCarthy and Individually, No.
08-3216 (January 28, 2010)
State of Rhode Island v. Thomas J.
Lewis, No. 04-0503 (January 25, 2010)
Sovereign Bank v. David Fowlkes, Jr.,
Henry Seemore, Jr., MichelleGordon-Seemore, Ian Hardman and Jennifer
Hardman, No. 08-4330 (January 25, 2010)
Gaudino Leite v. Irene M. Pimental,
No. 03-3175 (January 25, 2010)
J. D. CEMENT WORKS, INC.
v. SBER ROYAL MILLS, LLC, ROYAL MILLS FEDERAL LLC, SBER
ROYAL MILLS COTTON SHED, LLC, and COTTON
SHED FEDERAL, LLC., No. 2008-1718 (Consolidated)
George W. Pirie v. 3960 Post Road, LLC,
and Defelice Center Condomimum Association, d/k/a Bay Winds
Condomimium Association, No. 09-0470 (January 21, 2010)
Gerald S. Kempen v. The Town of
Middletown, R.I., by and through its Town Administrator, Shawn J.
Brown; by and through its Finance Director, Lynne Dible; Paul M.
Rodigures, in his capacity as President of the Town Council; Shirley
R. Mello, in her capacity as Vice President of the Town Council;
Barbara A. Barrow, in her capacity as member of the town Council,
No. 08-0577 (January 15, 2010)
State of Rhode Island v. Edwin Marrrero,
No. 06-3555 (January 14, 2010)
State of Rhode Island v. Keeper of
Records, No. 09-1499 (January 14, 2010)
Drake Petroleum Co., Inc. v. City of
Cranston Zoning Board of Review, by and through its members, Joy
Montanaro, Edward DiMuccio, Frank Corrao, III, Adam Sepe and Steven
Minicucci; Calvi Realty Co., Inc. and Stop & Shop Supermarket, Co.,
08-7985 (January 14, 2010)
The Plum Beach Club v. Town of North
Kingston Zoning Board of Review and Itamara Partners, No.
09-0009 (January 13, 2010)
Gary Tassone v. State of Rhode Island,
No. 00-4624 (January 13, 2010)
Linda J. Spaight and Raymond R. Morris
v. Bahram Shan-Hosseini, M.D. Reza Shah Hosseini, M.D. Jennifer
Botte, M.D. and Women & Infants Hospital of Rhode Island,
Amended, No. 04-6822
(January 13, 2010)
State of Rhode island v. Wayne Morris,
No. 09-2087 (January 11, 2010)
Harold Hazard v. State of Rhode Island,
No. 03-799 (January 11, 2010)
Timothy C. Harrington v. James Cardono,
No. 05-0891 (January 8, 2010
Sand Trace, LLC v. Randy Rossi, in his
capacity as the Finance Director of the Town of Smithfield; George
D. McKinnon, Antonia S. Fonseca, S. James Busam, David L. Greene,
Peter Fogarty, Gordon Stroupe, and John Kovolski in their capacity
as Members of the Town of Smithfield Zoning Board of Review; And
GERI DeAngelis, in her capacity as the Zoning Board of Review Clerk
for the Town of Smithfield, No. 09-1768 (January 6, 2010)
G. Dale Dulgarian, in his Capacity as
Trustee of the Krikor S. Dulgarian Trust of December 22, 1960 v. The
Zoning Board of Review of the City of Providence, Myrth York, Scott
Wolf, Arthur v. Strother, Michael E. Egan and Daniel W. Varin, in
their capacities as Members of said Zoning Board, Thayer Realty
Trust, and Shark Sushi Bar & Grill, No. 08-4182 (January 5,
2010)
Marilyn Downs and Erin Downs, a
minor, 3M Company et al, No. 06-1710; Lisa Kroskob and Craig Kroskob
v. AGCO, et al, 07-6435 (January 5, 2010)
The Narragansett Electric Company d/b/a
National Grid v. Samuel Zira, Rochelle Zira and City Limits Auto
Sales, Inc., No. 04-0796 (January 5, 2010)
Arnolda Improvement Corporation v.
Bartlett and Company Antiques, Inc.; Boat Cove Dock Association;
Chester T. Davis; David R. Bailey; Patricia J. Bailey; and Marilyn
S. Ryan, No. 09-0019
