State
v. Gahil Oliveira et al, No. 99-7 (July 6, 2001)
Three defendants were accused of conspiracy and murder.
One victim was killed but another escaped. The surviving victim
identified two defendants as the shooters and two other defendants as
those in the vehicle. After conviction, the defendants appealed. The
Court rejected allegations that evidence was improperly admitted due
to the state's discovery misconduct. An out-of-court identification
did not involve state action. The trial justice did not err in
questioning jurors collectively about whether they had seen a
newspaper article about the crimes. The trial justice did not err in
refusing to recuse herself due to the fact that the murder victim's
mother was to act on the justice's court nomination. There was no
prejudice resulting from an allegedly inappropriate remark made by the
trial justice. The trial justice did not erroneously limit the
defense's examination of two witnesses, and there was no prejudice
from the denial of one defendant's motion to sever.
In
the Matter of Joseph A. Cozzolino, No. 01-240 (July 3, 2001)
The
lawyer was the subject of a disciplinary board complaint. Former
clients alleged that they had paid the attorney’s fee but never
received the work product. The Court held that the attorney
violated several ethical rules. Since the attorney had a long history
of disciplinary actions, the Court indefinitely suspended his license.
In
the Matter of William R. MacLean, No. 01-216 (June 29, 2001)
The attorney was
the subject of a disciplinary board complaint. The attorney was
relatively unresponsive to the investigation but admitted his acts.
Finding that the attorney's medical and psychological problems made it
difficult to attend to his practice, the board established a
monitoring program and recommended a public censure. By the time the
Court reviewed the recommendation, however, it had also received
notice that the attorney had failed to follow the monitoring program
and that several more clients had filed complaints against him.
Therefore, despite the mitigating circumstances, the Court determined
that an indefinite suspension from practice was the only way to
protect the public.
State
v. Jacques Gauthier, No. 99-270 (June 29, 2001)
The
defendant was still on probation when he was present at, and possibly
committed, the murder of his wife's lover. The trial justice found
that he had not violated his probation under Rule 32(f) because he was
not convinced that defendant was the murderer. The Court granted the
state's petition for certiorari on the ground that if defendant were
found not in violation of probation in connection with the murder,
collateral estoppel would preclude further prosecution. The Court
reversed the trial justice’s finding of no probation violation.
The standard was not whether defendant had committed a murder, but
simply that he had failed to keep the peace and remain on good
behavior.
State
v. Jeffrey O'Brien, No. 98-261 (June 29, 2001)
The
defendant asked his fraternity brother to videotape his intimate
relations with the victim. On appeal, the Court determined that the
videotape recorder, was an "interception device" under Rhode
Island law. The Court also concluded that the trial justice’s
failure to read to the jury the statutory definitions of
"intercept" and "intercepting device" was not
reversible error. The Court defined "willfully," in the
context of G.L.
1956 § 11-35-21(a)(1), as acting voluntarily and intentionally,
and not because of a mistake or accident or other innocent reason. The
trial justice’s refusal to give an instruction distinguishing
between committing a tort and acting for the purpose of committing a
tort was not reversible error. The videotape was properly admitted
into evidence because its probative value was not substantially
outweighed by the danger of unfair prejudice. No other errors were
made and the conviction was affirmed.
Diane
S. Cronan ex rel. State v. John J. Cronan, No. 99-378 (June 28, 2001)
The
Superior Court had permitted plaintiff to pursue a private prosecution
of her husband after the Attorney General had failed to prosecute.
The defendant challenged the Superior Court's jurisdiction to hear and
determine the private prosecution of a criminal complaint. The Court
declined to exercise its supervisory powers to establish a per se rule
prohibiting private prosecutions, because the Attorney General's
failure to assert control over a criminal prosecution initiated by a
private complainant, even a misdemeanor charge, did not deprive the
Superior Court of jurisdiction to hear and determine the charge.
Earl
H. Webster v. Louis A. Perotta et al; Stephen J. Riccitelli v. Louis
A. Perotta et al; Vincent J. Ferrante, Sr. v. Town of Johnston et al;
Ruth V. Bolton v. Louis A. Perota et al, No. 00-333 (June 27, 2001)
G.L.
1956 § 45-19-1, the “Injured on Duty” statute, guaranteed full
pay to police officers and firefighters injured in the line of duty.
Several retired police officers sued their former municipal employer
for failure to properly compensate them, and the town failed to
respond to their complaints. Default judgments were entered in
favor of the claimants, and the trial justice ordered the town to pay
the retirees. The Court determined that although the
default judgments precluded the town from disputing liability, the
trial justice still had to determine damages. Since the statute
only provided full compensation for non-retired public employees, the
Court remanded for a hearing on what salary and benefits were due
claimants under the “IOD” statute prior to their retirement.
Prejudgment interest was not recoverable because the town was
exercising a governmental function.
In
re Steven E. Ferrey, No. 2001-172 (June 26, 2001)
A
board permitted an attorney not licensed to practice in Rhode Island
to appear before it. After the attorney had appeared before the board
on several occasions, he filed a motion with the Court of Rhode Island
for pro hac vice permission to provide legal services in Rhode Island.
The Court ruled that it had the exclusive and ultimate authority to
determine who may or may not be permitted to practice law in Rhode
Island and, although the Court would grant the attorney's motion
seeking permission to practice before the board, that grant was
effective on the date of the Court's opinion, and not, as the attorney
had requested, nunc pro tunc to the date the attorney first appeared
before the board.
Kingstown
Mobile Home Park, Pearl Krzak, No. 99-166 (June 26, 2001)
The
landlady of a mobile home park sought to evict a tenant. When
she was prevented from doing so she challenged the constitutionality
of the Rhode Island Mobile and Manufactured Homes Statute, G.L.
1956 § 31-44-1 et seq. On appeal, the Court determined that the
placing of special limitations on landlords in the special situation
of mobile homes was justified by legislative findings of tenant
vulnerability. The Court did not review the landlady's constitutional
challenge, because she failed to give required notice to the attorney
general, and found that none of her reasons for eviction appeared in
the exclusive list at G.L.
1956 § 31-44-2(a).
John
H. Janson v. Patricia J. Janson, No. 99-490 (June 25, 2001)
On
appeal, the wife argued that the trial justice's refusal to hear her
motion and the subsequent entry of the qualified domestic relations
order constituted reversible error. Upon review, the Court reversed
and remanded the judgment. Because the parties' property-settlement
agreement and the trial justice’s decision were silent with respect
to when the wife was entitled to receive either actual or equivalent
pension payments, the trial justice should have resolved the ambiguity
based upon principles of equitable distribution rather than simply
adopting, without sufficient explanation or justification, the
husband's preferred reading of the agreement. In the absence of a
clear agreement specifying how and when the husband's pension was to
be valued and distributed to the wife, it was inequitable for the
trial justice to allow the husband to unilaterally deprive the wife of
her share of the pension by delaying his retirement until some
uncertain date in the future when he might decide to retire.
Maria
Craveiro v. Aurelio Craveiro v. Dalia Duarte et al, No. 00-381 (June
22, 2001)
When the husband and wife divorced, they owned property in
the United States
and in Portugal. The Family Court trial justice ordered the husband,
who had returned to Portugal, not to dispose of the Portuguese
property, as it was to be used in determining equitable distribution.
Four days later, he sold the property to relatives at a
fraction of its value. The Court dismissed as untimely the husband's
and relatives' appeals of a judgment awarding the wife a divorce, set
aside the conveyance as fraudulent, and awarded statutory attorney’s
fees to the wife. Upon
reviewing the trial justice’s finding that that the husband and his
family consistently acted to prevent an equitable distribution from
occurring, the Court found no clear error and therefore sustained the
trial justice’s decision.
Richmond
Square Capital Corporation v. Richard Mittleman et al, No. 99-551
(June 21, 2001)
Lender
alleged that lawyers failed to properly advise it about taxes due on
the real estate. When the taxes came due, lender paid them to protect
the collateral. After the borrower defaulted, lender sought to enforce
a guaranty of the loan and settled its claim with the guarantor. On
appeal, lawyers argued that the trial justice erred in excluding
evidence relating to the settlement between lender and the guarantor.
Lawyers argued that evidence of the settlement would have reduced or
negated lender's damages arising from the malpractice. The Court
determined that there was no abuse of discretion in refusing to admit
the settlement documents. Payment of the taxes was an expense that
lender had to incur regardless of the ultimate fate of the loan or the
value of whatever settlement it was able to negotiate. Additionally,
the collateral source doctrine mandated that evidence of payments made
to an injured party from sources independent of a tortfeasor were
inadmissible and should not diminish a tortfeasor's liability to the
plaintiff.
The
Providence Journal Co. v. Convention Center Authority, No. 99-320
(June 21, 2001)
On appeal, the newspaper contended that the trial justice
erred in finding that the records sought from the authority were
exempt from public disclosure under the Rhode Island Access to Public
Records Act (APRA). The
authority, on the other hand, maintained that the documents sought by
the newspaper were protected from public disclosure under the APRA.
The Court held that the documents relating to the negotiations between
the authority and the representatives of the golf tournament and
banquet were not subject to disclosure under the APRA because the
information amounted to confidential commercial or financial
information obtained from the authority's prospective customers.
However, the final contract between the parties was subject to
disclosure under the APRA, because once the negotiations were
solidified into a final agreement between the parties, that agreement,
or at least portions of it, should have been available to the public
pursuant to the APRA. If the final contract included confidential or
privileged financial information of the customers, and was segregable,
that limited information was subject to redaction.
Vivian
J. Viti v. John N. Viti, No. 00-73 (June 21, 2001)
Upon
husband and wife's divorce, the trial justice awarded the husband 40
percent of the marital estate and the wife 60 percent. On appeal, the
husband argued that the trial justice failed to set forth with
specificity her reasons for awarding the wife 60 percent of the
marital assets. Upon review, the Court affirmed the trial justice’s
division of the parties' marital assets. Although the trial justice
did not state with specificity the factors she was relying on in
awarding the wife 60 percent of the marital assets, she did consider
all the evidence in light of the factors set forth in R.I.
Gen. Laws § 15-5-16.1. The Court reviewed the trial justice’s
decision and determined that all the necessary facts and statutory
factors were considered. Consequently, the trial justice did not err
or abuse her discretion in ordering an equitable distribution of the
parties' marital assets.
In
re Samson P., No. 00-202 (June 21, 2001)
The
parents appealed an order terminating their parental rights. The Court
found that both parents suffered from mental illness. The child had
respiratory problems and required special medical care. There was
overwhelming evidence of parents' collective cognitive and
psychological deficiencies. The child had substantial medical needs,
and parents were unable to properly care for him. The parents had
failed to accept or follow through with the various plans for
reunification. As a result, the Court ruled them unfit to raise the
child.
Jan
Reitsma et al v. Pascoag Reservoir & Dam, LLC, No. 00-306
(June 20, 2001)
In
1964, the state purchased a lot abutting a private lake owned by a
corporation. In 1965, the state constructed a boat ramp on the lot to
give members of the public access to the lake. The ramp extended into
the lake and was partially submerged at ordinary high water levels.
Evidence showed the state allowed members of the public to use the
boat ramp and that the corporation did not complain about that use
until 1997 when it posted a "No trespassing" sign near the
ramp. The Court determined that (1) the state was not limited to using
its power of eminent domain to acquire property; (2) the law permitted
the state to acquire an easement by prescription or title by adverse
possession over property that was privately owned; and (3) because the
state's construction of the boat ramp and its subsequent maintenance
of that structure during uninterrupted use by the public over the next
32 years was adverse, continuous, and open and notorious, the state
acquired a portion of the lake bottom by adverse possession and also
acquired a prescriptive easement, on behalf of the public, to use the
ramp for purposes of obtaining access to the lake.
State
v. Paul Furtado, No. 00-44 (June 20, 2001)
The
charges against defendant stemmed from a domestic dispute with the
defendant's former girlfriend. The defendant argued on appeal that
there was gross disparity between the sentence imposed on him and
those imposed on similar offenders, and that the sentence was
manifestly excessive and without justification. The Court determined
that defendant failed to establish that the trial justice abused his
discretion in denying his motion to reduce his sentence. Despite
defendant's attempt to show that the sentence he received was
disparate from other sentences imposed for similar offenses, he failed
to meet his burden of showing that there was no justification for the
sentence he ultimately received. Moreover, the sentence imposed was
within the statutory limitations. Therefore, however disparate it may
have been from sentences generally imposed for similar offenses, the
sentence was not one that was beyond the power of the sentencing
justice to impose, nor was it patently unjustified.
State
v. Lucien E. Forbes, No. 99-558 (June 19, 2001)
The
defendant borrowed $32,000 from the check holder and gave holder a
demand note due 14 days later. The defendant gave the holder a $32,000
post-dated check stating the holder could draw on the account on March
21, or at the latest March 24, but to contact defendant's assistant.
There were delays. The holder finally presented the check in June and
it was dishonored. The holder complied with the demand requirements of
G.L.
1956 § 19-9-26, but defendant did not pay the $32,000. The Court
determined that the trial justice had not erred when it denied
defendant's motions for acquittal, for certain instructions concerning
specific intent, and for a new trial. Under § 19-9-26, defendant's
failure to pay the check within seven days of receipt of the certified
mailing constituted prima facie evidence of intent to defraud that
could rebutted only by the affirmative action of payment of the check
in full. That holder knew there might not be sufficient funds was not
a defense. The defendant's statement that funds would be available on
March 24 also created prima facie evidence of defendant's intent to
defraud.
The
New England Expedition-Providence, LLC v. City of Providence et al,
No. 01-89 (June 19, 2001)
A
provision in the city zoning ordinance stated that "the purpose
of a major land development project was to allow for the creation of
multifamily, mixed use developments or primary through secondary
schools through careful site planning." The developer argued that
provision exempted its shopping center development from the statutory
requirement of G.L.
1956 § 45-24-31(37) requiring city planning review and
approval, since the shopping center was not a multifamily, mixed use,
or a school. The Court agreed with the trial justice that the
development was a § 45-24-31(37) major land development. The
ordinance had to be read in conjunction with § 45-24-31(37), which
was the enabling act. The language of § 45-24-31(37) was clear and
unambiguous, and its definitions superceded any contradictory
ordinance definitions. Moreover, under the ordinance, read in its
entirety, the development was commercial, and therefore was a major
land development project.
Melissa
Moseley et al v. Kevin Fitzgerald in his capacity as Treasurer of the
City of East Providence et al v. New England Telephone and Telegraph
Company et al, No. 99-544 (June 19, 2001)
A 15-year old girl suffered a serious head injury when she
tripped on a guy wire that supported a utility pole and fell
backwards, striking her head on a sidewalk. Evidence showed that the
pole was located near on property owned by a municipality that was the
site of both an elementary school and a public playground, and that
the pole was jointly owned by a telephone company and an electric
company. However, the companies had concluded an agreement which gave
the electric company responsibility for maintaining the guy wire. The
Court determined that (1) G.L.
1956 § 45-15-9 imposed a requirement on plaintiffs to
notify the municipality of the accident within 60 days of the date on
which it occurred as a condition to filing suit, and plaintiffs were
barred from suing the municipality because they had not given that
notice; and (2) because telephone company and electric company had
equal ownership and control over the utility pole, they owed an equal
duty to correct dangerous conditions and to warn others of dangerous
conditions, their agreement notwithstanding.
In
re Anthony M., No. 99-489 (June 15, 2001)
A
teen-aged mother with a troubled past lost custody of her infant son
to DCYF. The agency worked with her for many years, executing five
different case plans aimed at preparing the mother to be reunited with
her child. The mother never followed through. When the boy was eight
years old, DCYF sought to terminate the mother's parental rights and
allow the family he lived with to adopt him. The high court held that
clear and convincing evidence supported the trial justice’s
determination that the mother was unfit and that the boy's best
interests required termination. While it was commendable that the
mother was married and settled at the time of trial, DCYF had not been
made aware of this change and was required to act in the best
interests of the child.
Gregory
Solas v. Emergency Hiring Council of the State of Rhode Island et al,
No. 99-68 (June 14, 2001)
The council held a closed meeting to consider the hiring of
hearing officer. The
plaintiff, an advocate of the handicapped, wished to be present. The
council refused permission. The
Court held the council was a public body as defined by G.L.
1956 § 42-46-2(c), and as such, was subject to the procedures and
requirements set forth in Open Meetings Act.
The Court found the council possessed significant supervisory
and executive veto power over creating or filling state employment
positions, and acted in an advisory capacity in state hirings. The
Court held the award of fees proper pursuant to §
42-46-8(d) given the fact that that section was amended prior to
the time the judgment was entered. Even if the amendment had not been
effective at judgment, the Court could have applied the provision.
John
Carillo v. State of Rhode Island, No. 92-155 (June 14, 2001)
An
important witness at an inmate's trial for murdering a guard was a
fellow inmate. The witness testified at the inmate's trial that he had
been promised a prison term no longer than 45 years in exchange for
his testimony. The inmate applied for post-conviction relief when he
learned, many years later, that the witness's sentence had been much
shorter. He argued that his due process rights had been violated by
the prosecution's failure to disclose the true terms of the plea
agreement. The Court did not reach the inmate's constitutional
question because it found no clear error in the trial justice's
determination that the plea agreement was as described and that its
terms were modified only after the inmate's conviction.
Alan
MacQuattie et al v. Ralph A. Malafronte et al, No. 99-278 (June 14,
2001)
The
plaintiff custodians filed an action seeking a restraining order to
prevent a termination hearing from going forward.
The restraining order was denied and the custodians' employment
terminated. The union filed a grievance contesting the termination.
The grievance went to arbitration, where it was denied.
At trial, defendants moved for summary judgment. On appeal, the
custodians argued that summary judgment was improper because material
issues of fact remained about whether the termination constituted an
unfair labor practice. The Court noted that the custodians did not
present evidence that would support their contention, and that mere
allegations to the contrary contained in the custodians' pleadings
were insufficient to defeat the motion for summary judgment. Further,
the Court asserted that the custodians could not prevail on the unfair
representation claim if school district officials did not contravene
the collective bargaining agreement.
In
re Ginger G., No. 98-509 (June 13, 2001)
DCYF
filed a termination of parental rights petition. The mother did not
appear for the termination hearing. The trial justice granted DCYF’s
request to proceed in her absence. The mother later addressed the
court and explained that she had missed the trial date because she had
the time wrong. The mother then disputed much of the caseworker's
testimony. Notwithstanding her presentation, the trial justice ordered
the entry of the decree. Although it was unclear why the mother did
not appear, it was known that she had a long history of mental illness
and substance abuse that frequently resulted in hospitalization.
Therefore, it could not have been assumed that her absence was
entirely voluntary. Her guardian ad litem remained entirely passive,
and indicated that she thought her responsibilities did not include
acting as the mother's legal representative. At a minimum, the trial
justice should have inquired about the status or position of the
mother and the reason for her absence to ascertain whether the
non-appearance was voluntary or involuntary.
Malek
Ahmed v. Constance Pannone et al, No. 00-125 (June 13, 2001)
Lawyer
filed a second amended complaint after stipulating to the dismissal of
pro se complaints. The trial justice found that the client had
dismissed at least two previous claims arising from the same facts and
that, pursuant to Rule 41(a)(1), the notice of dismissal as to the pro
se pleadings operated as an adjudication on the merits. In granting
the lawyer summary judgment in the malpractice action, the trial
justice found that it was the client's failure to appeal the
underlying dismissal that ultimately caused that suit to be dismissed,
and that the client failed to show that the dismissal resulted from a
breach of the lawyer's standard of care. The Court held that the
client's assertion that the lawyer's filing of the stipulation caused
him damages was speculative in light of the client's failure to appeal
or make a motion to vacate the Rule 41(a)(1) order. Moreover, the
client failed to present the necessary expert evidence on the standard
of care. The client also presented no competent evidence of
consequential damages. In short, the client failed to prove all the
necessary elements of his legal malpractice claim.
State
v. Kushnowski, No. 00-78 (June 13, 2001)
The
defendant's convictions resulted from events which occurred outside a
bar where the victim was talking to her boyfriend on a pay phone when
defendant grabbed her from behind and punched her in the face. In the
ensuing struggle he hit her, fractured her arm, and threw her
head-first into his car where he subsequently sexually assaulted her.
The Court held the trial justice properly admitted evidence of
defendant's prior criminal assaults since he opened the door by having
witnesses testify as to his peaceable nature. The jury instructions
were also proper. The defendant's request for a simple assault
instruction was properly denied since no actual and adequate dispute
existed regarding the element that distinguished the greater and
lesser charges. The trial justice had no authority to dismiss the
count of assault with the intent to commit sexual assault or to merge
it for sentencing. However, the vacating of his conviction on the
count did not affect his sentence, given that he was not sentenced on
the count. Therefore, there was no need for resentencing.
McKinney
& Nazareth, P.C. v. Gregory J. Jarmoszko, No. 00-104 & 00-21
(June 13, 2001)
The
Court held that default was a drastic remedy which should only be used
in extreme situations. The default was improperly entered. The client
had responded to the complaint with a document that amounted to a
denial of the claim and which constituted a pro se entry of
appearance. Since the client had appeared and the law firm was aware
of the essence of his answer, the client should not have been
defaulted. The trial justice had stayed entry of default to allow the
client to proceed with his motion to vacate the default and amend his
answer. The client relied on the trial justice’s representation that
the entry of default would be stayed. However, the default judgment
was actually entered despite an order accompanying the judgment
indicating that judgment should not be entered until at least September
21, 1999.
Had the trial justice’s order been followed as written, the client's
motion to vacate the default would have been heard on September
20, 1999.
Instead, the motion was heard on September 17, 1999.
At that hearing, however, the motion justice was annoyed with the
client's behavior and denied his motion to set aside the entry of
default. That motion should have been granted.
Allstate
Insurance Company v. Peter J. Lombardi, No. 98-476 (June 12, 2001)
The
passenger was injured in an auto accident, and brought an uninsured
motorist (UIM) claim against the insurance company. The claim went to
arbitration. While the arbitration was pending, a decision was issued
which held that under the facts of that case, an insured was not
entitled to recover prejudgment interest in excess of the policy
limits. Nevertheless, the arbitrators issued an award for the
passenger, which included interest in excess of the policy limits. The
insurance company tendered a check for the policy limits to the
passenger, which included accord and satisfaction language and which
the passenger accepted. The passenger then sought confirmation of the
arbitration award. The trial justice confirmed the award and required
the insurance company to pay interest. The Court determined that while
Rule 60(b)(4) allowed relief from a judgment if the judgment was void,
a judgment was not void merely because it was erroneous. Regardless of
whether the lower court erred on the merits when it entered judgment,
the insurance company could not obtain relief merely because of a
legal error on the merits when judgment was entered.
Jeanette Calise et al v. Hidden Valley
Condominium Assocation, Inc., No. 99-452 (June 11, 2001)
The
plaintiff slipped and fell on a former defendant's common area. The
plaintiff's husband alleged loss of consortium.
A hearing was held to determine the amount of the plaintiffs'
damages due from the defaulted defendants.
The Court determined that the trial justice’s decision was
correct. The comparative
negligence statute, G.L.
1956 § 9-20-4, was not a comparative fault statute. Section 9-20-4 did not address proportionate negligence among
defendants. Therefore, the Court applied the Uniform Contribution
Among Tortfeasors Act to the fact scenario. Since the underlying
policies of the Act were to encourage settlements and finalize
litigation, the defaulted defendants should not have had the privilege
of disputing proportionate liability with defendants who did not
default or with the plaintiffs. The
plaintiffs conceded that damages payable by the defaulted defendants
would be equal to the total damages awarded, reduced by the settlement
received from the former defendants.
David
R. Heflin v. John Koszela, Jr. et al, No. 99-475 (June 11, 2001)
Tenant
rented a house owned by a trust. One of the trust beneficiaries was
the son of the owner of a gas company and an officer of another
company. The two companies
shared offices and employees. When
tenant had trouble with his gas heater, gas company sent an employee
to fix it. The heater exploded, injuring tenant.
He sued both companies and owner's estate for damages, claiming
they were alter egos of each other. The claims were heard separately.
Both company and estate were granted summary judgment. Tenant's
appeals were consolidated. The Court determined that tenant presented
sufficient evidence of companys’ alter ego status to go to trial. He
failed to timely follow up on his action against estate after his
initial claim was disallowed. His negligence action was not a
contingent claim. He waived actual notice by filing his initial claim
in the probate court.
The
Energy Council of Rhode Island v. Public Utilities Commission et al,
No. 00-241 (June 11, 2001)
The Rhode Island Utility Restructuring Act deregulated
utility service. It provided that electrical distribution companies
would be required to offer a standard rate for a transition period,
after which customers who had contracted with nonregulated suppliers
were to be offered last resort power service. After arranging for an
appropriate source for last resort service, an electrical company
sought approval for rate increases for its nonresidential last resort
customers only. A group of
major business customers challenged the public utility commission's
approval of the rate increase as discriminatory and not based on the
evidence, but the Court affirmed the increase. Rate differentials not
based on cost differentials were not necessarily discriminatory, so
long as they were reasonably based on the different circumstances of
customers who had no other service options (primarily residential
customers) and those who did. Furthermore,
the order was reasonably based on credible evidence.
State
v. Rodney Perry, No. 99-137 (June 8, 2001)
The Court concluded that, despite errors made by the trial
justice regarding jury instructions as well as not allowing defense
counsel to discuss the prosecutor’s failure to call a witness
discussed during opening argument, there was substantial other
evidence indicating the defendant’s guilt.
Therefore, reversal or a new trial was not warranted. Further,
the Court did not believe that the prosecution was guilty of a Brady
violation in failing to disclose its communicated willingness to
consider relocating Kelly if he felt threatened as a result of his
trial testimony. The
first-degree murder conviction was affirmed.
State
v. Corey Martinez, No. 98-308 (June 8, 2001)
As part of a common plan or scheme of a criminal
organization, the offenses in the indictments were properly joined.
There was no abuse of discretion for failing to sever the cases
because there was no showing of substantial prejudice in the joinder.
There was no error by the trial justice for failing to allow
public funds to be used for an eyewitness identification expert
because the trustworthiness of the identification was not beyond the
ken of the jury. The
conviction was affirmed.
Paula
Kevorkian v. Judith Glass et al, No. 00-115 (June 8, 2001)
The defendant filed a pretrial memo that the trial justice
treated as a motion for summary judgment, but proper notice was not
given to the plaintiff. Summary
judgment is a proper vehicle for a trial justice to determine whether
a particular statement is defamatory per se. However, once a trial
justice determines that a pretrial memorandum sounds in summary
judgment, he then must ensure that the statutory notice requirement
has been met. Failure to
do so, as in this case, was reversible error.
John
Miguel v. State of Rhode Island, No. 00-163 (June 8, 2001)
The sole focus of an application for post-conviction relief
filed by an applicant who has pled guilty is the nature of counsel's
advice concerning the plea and the voluntariness of the plea. If the
plea is validly entered, the Court does not consider any alleged prior
constitutional infirmity. Further,
to prevail on this appeal the defendant must have demonstrated at his
post-conviction hearing that his attorney's advice was not within the
range of competence demanded of attorneys in criminal cases.
Counsel had raised the potential defense of diminished capacity
and, therefore, competently represented the defendant.
Sheldon
Whitehouse et al v. William Davis et al, No. 00-10 (June 5, 2001)
On appeal from a decision by a justice of the Superior
Court, the Court held that a statute requiring funding for a specific
environmental hazard, an oil spill or threatened oil spill, was
applicable to the remediation of an environmental hazard caused by the
stockpiling of millions of automobile tires. The Court agreed with the
statutory construction employed by the trial justice respecting the
availability of funds from the Oil Spill Prevention, Administration
and Response Fund which was created by G.L. 1956 chapter 12.7 of title
46, and affirmed the decision permitting money to be spent to
dismantle the stockpile of tires, thereby preventing a catastrophic
discharge of a petroleum-based product into the waters of the state.
Michael
Sparling et al v. Russell Bizier et al v. Metropolitan General
Insurance Company, No. 99-500 (June 4, 2001)
After an insurance policy was cancelled, and summary
judgment was granted in favor of insurance company, the insured
argued, on appeal, that a genuine issue of material fact remained
regarding whether the insured received a cancellation notice and
whether the policy permitted cancellation for not paying the premium.
The Court concluded that the motion justice correctly ruled on both
summary judgment motions because the insurer's proof of mailing
provided sufficient proof that notice had been given was not rebutted
with competent evidence by the insured, and also, the policy had
specific language regarding mailing notice of cancellation for
non-payment of a premium.
Phoenix
J. Finnegan, a Rhode Island General Partnership v. Seaside Realty
Trust et al, No. 2000-162 (June 1, 2001)
The Court noted that, although G.L. 1956 § 44-9-11 was
unconstitutional because it did not provide for mail or personal
notice to readily identifiable interested parties, the failure of the
appellant to record her lease or option to purchase the property was
fatal to her claim because the existence of her substantial property
interest was not readily identifiable to either the tax collector or
the title examiner employed by appellee.
The final judgment was affirmed.
Phoenix
J. Finnegan, a Rhode Island General Partnership v. Christopher
Bing et al, No. 99-430 (June 1, 2001)
Following a tax sale that was declared void because of a
lack of notice to respondent property owner, the trial justice also
exercised equitable jurisdiction by requiring reimbursement by city to
petitioner. The Court held
that the foreclosure of a right of redemption is based purely on
statutory law and the trial justice had no discretion to order
equitable relief; the petitioner’s remedy was limited by statute,
which provided for the filing of a claim for a refund by the
petitioner with the city.
State
v. Tremayne Clifton, No. 99-157 (June 1, 2001)
The Court affirmed a conviction for assault with a
dangerous weapon (G.L. 1956 § 11-5-2(a)) following the trial
justice’s denial of a motion for acquittal.
In evaluating that evidence, the Court applies an objective
test, asking whether the defendant's actions were such that they would
have created a well-founded fear or apprehension of an immediate
injury on the part of a reasonable person who was confronted with the
same or similar conduct. The inquiry focuses solely upon the objective
actions and demeanor of the wrongdoer in light of the circumstances.
The Court has not erected such rigid requirements of
"close proximity" or "extended encounter" to prove
the commission of that crime. Also,
the Court denied the defendant’s motion to dismiss, brought on the
grounds that the defendant was not tried within 120 days pursuant G.L.
1956 § 13-13-1 et seq., the Interstate Agreement on Detainers Act,
because good cause had been shown.
The dissent suggested an evidentiary hearing in light of the
fact that good cause had not been shown in open court and the trial
justice did not make a finding of good cause for the continuance, as
well as the trial date having been set past the mandatory 120 days
prior to any motion for a continuance.
In
re Devone S., No. 99-449 (May 30, 2001)
In an involuntary termination of parental rights hearing,
the Rhode Island Family Court found, pursuant to G.L.
1956 § 15-7-7(a)(2), that father was an unfit parent, and,
pursuant to G.L.
1956 § 15-7-7(a)(4), that father had abandoned his child.
The Rhode Island Court agreed that DCYF had made its prima
facie cases, finding substantial evidence of abandonment and
unfitness.
Stephanie
George v. Faeze Fadiani, D.M.D. et al, No. 00-60 (May 30, 2001)
In a medical malpractice action seeking to hold a dental
practice vicariously liable, the trial justice erred in holding that
the doctrine of collateral estoppel prevented the plaintiff from
bringing suit because prior action was not brought by plaintiff or
someone in privity with plaintiff.
Further, the trial justice erred in granting summary judgment
on the theory that doctor was an independent contractor.
Rather, to sustain an action for medical-malpractice against a
professional medical corporation based on the theory of apparent
authority, the plaintiff must establish that the professional medical
corporation, or its agents, acted in a manner that would lead a
reasonable person to conclude that the physician was an employee or
agent of the hospital, that the patient actually believed the
physician was an agent or a servant of the professional medical
corporation, and that the patient thereby relied to his detriment upon
the care and skill of the allegedly negligent physician, which
necessarily involves a fact-intensive inquiry.
William
B. Galloway v. Roger Williams University, No. 00-25 (May 25, 2001)
The plaintiff was fired as dean of admissions and filed
suit. The Rhode Island
Court held that the law in Rhode Island
is clear: employees who are hired for an indefinite period with no
contractual right to continued employment are considered at-will
employees who are subject to discharge at any time for any permissible
reason or for no reason at all. It is not the role of the courts to
create rights for persons whom the legislature has not chosen to
protect. The plaintiff had
actual notice, via his personnel handbook, that he was
an at-will employee.
Ronald
Raimbeault et al v. Takeuchi Manufacturing (U.S.) Ltd. et al, No.
99-529 (May 23, 2001)
The Court applied the Daubert standard to the
admissibility of expert testimony under Rhode Island Rule of Evidence
702. The Court held that
the trial justice did not err in finding that the plaintiffs' witness
did not have the knowledge, skill, experience, training, or education
required by R.I. R. Evid. 702, nor was his testimony relevant,
appropriate, or of assistance to the jury.
Therefore, the expert witness testimony was properly excluded.
Bradford
Associates et al v. Rhode Island Division of Purchases et al Shaw
Construction Corporation v. Rhode Island Division of Purchases et al,
No. 2000-160 & 2000-188 (May 23, 2001)
Because an agency hearing was not required by law, the
action was not a ‘contested case’ pursuant to G.L. 1956 §
45-35-15, and the trial justice had no jurisdiction to make a
determination that the contractors’ suspension implicated a
constitutionally protected liberty interest.
State
v. Christopher Barnes, No. 99-469 (May 23, 2001)
The Court reviewed the suppression of certain evidence by
the trial justice. The
spoliation doctrine was not applicable to good faith scientific
testing. Even though
sample had been consumed by state laboratory, and thus prevented
testing by the defendant, does not violate an accused’s rights.
A hearing justice's discretion is not exercised by merely
granting or denying a party's request.
It was an abuse of discretion to suppress the evidence in a
Rule 403 hearing without giving the Court sufficient reasoning.
Norman
A. Lizotte et al v. Edna Mitchell v. Yorktown Associates et al, No.
00-23 (May 16, 2001)
After summary judgment was granted in favor of the
defendant sellers, the plaintiff purchasers appealed.
The Court affirmed. The
plaintiffs made no showing of actual misrepresentation that allegedly
induced them to close on the property.
Further, by accepting the warranty deed, the purchasers waived
any contract claims based upon the earlier sales agreement; because
the purchasers' contract claims were barred by the doctrine of merger
by deed, the issue of recision of the contract necessarily failed.
Elizabeth
Ferguson v. Wayland Manor Associates et al, No. 99-485 (May 16, 2001)
The Rhode Island Court vacated summary judgment, holding
that the motion justice erred in excluding an expert affidavit. The
facts or data relied upon by the expert need not be admissible in
evidence if they are of a type reasonably relied upon by experts in a
particular field in forming opinions or inferences upon the subject,
pursuant to Rhode Island Rule of Evidence 703 (advisory committee's
note). Also, when viewing the affidavit in conjunction with other
evidence presented during the summary judgment hearing, the affidavit,
viewed in the light most favorable to plaintiff, established a prima
facie case and raised a genuine issue of material fact about the cause
of the fire.
Narragansett
Electric Co v. Public Utilities Commission et al, No. 00-235 (May 16,
2001)
The Rhode Island Utility Restructuring Act introduced
performance-based rate setting and also contained many policy
expressions, giving prime importance to a ratepayer’s interests. The
petitioner was obliged, pursuant to the statute, to refund
overpayments to its customers. However,
the statute did not specifically address refunds received by the
petitioner from its own supplier of electrical power. When the utility
did receive such a refund, it sought authorization to retain the
refund for its equity holders.
The utility appealed the Commission's order that it refund the
extra money to its ratepayers. The Court reviewed respondent's factual
findings with deference, but the Court reviewed the application of the
statute de novo, agreeing that the statutory emphasis on ratepayer
welfare made the principle of ‘equitable recovery’ applicable even
after the enactment of the statute. The Commission reasonably found
that the utility had no unrecovered costs and correctly ordered a
refund.
In
re Christopher S., No. 00-212 (May 15, 2001)
Three questions were certified to the Court:
(1) whether the Sexual Offender Registration and Community
Notification Act, was constitutional as applied to juveniles; (2)
whether juveniles accused of sexual offenses were entitled to a jury
trial if the Act was constitutional; and (3) whether a juvenile had
the right to a jury trial, if he/she was subjected to registration as
a sex offender past his/her 21st birthday.
The Court declined to answer the questions because the Family
Court had to deal with the issues in the first instance.
Ernest
Robinson v. Michael Malinoff, in his capacity as City Manager of the
City of Newport et al, No. 99-523 (May 14, 2001)
Intervenor newspaper cited the Access to Public Records Act
as basis for reviewing plaintiff’s police personnel files.
Intervenor moved for, and received, summary judgment against
only plaintiff, and not against the defendant
City, based
solely upon APRA. On appeal, plaintiff argued the exception to APRA in
G.L. 1956 § 38-2-2(4)(A)(I)
exempted records concerning a particular and an identifiable person,
which, if disclosed, constituted an unwarranted invasion of privacy.
The Rhode Island Court vacated the summary judgment because the
plaintiff had not relied on APRA, so the trial justice erred in basing
summary judgment on APRA, and only the plaintiff, and not the city, as
the "public body" and record custodian, was included in the
summary judgment motion. Summary
judgment was vacated.
Estate
of Maurice A. Gervais, No. 00-64 (May 14, 2001)
Pursuant to G.L. 1956 § 33-25-4, the appellee widow
elected to take a life estate in lieu of bequests in will.
The probate court granted appellant's motion to enjoin appellee
from leasing premises and ordered that the appellee's interest in real
estate be valued and paid to her in lieu of her interest in property;
that decision was reversed by the Superior Court.
On appeal, the Rhode Island Court held
that the appellee did not abandon her life estate because she
had a right to claim a life estate in all of the decedent's real
estate owned by him in fee simple, including any rental properties.
The probate judge, therefore, exceeded that court’s jurisdiction.
State
v. Joseph Perry, No. 99-116 (May 14, 2001)
(Need summary)
State
v. Thomas Valenti et al, No. 99-41 (May 14, 2001)
There was overwhelming evidence of guilt, no denial of a
right to remain silent because the defense ‘opened the door’, no
improperly derogatory comments made by the prosecutor or trial
justice, and none of the rulings on the admissibility of evidence was
an abuse of discretion. The
convictions were affirmed.
City
of Warwick v. Mark Adams, No. 00-328 (May 11, 2001)
Certiorari was granted with respect to the request for a
holding that defendant had a unilateral right to revoke his waiver to
a jury trial within 10-days after an appearance before the district
court, pursuant to the Rhode Island District Court Rules of Criminal
Procedure 23, and that the absence of counsel during the hearing
before a bail commissioner, in any event, constituted the ‘good
cause’ needed to revoke the waiver.
State
v. Louise Russell, No. 99-504 (May 11, 2001)
The defendant moved to suppress field sobriety tests and
breath-test results. The
motion was denied and the defendant was convicted.
On appeal, the Court held that the officer's actions were
justified under the officer's ‘community-caretaking’ function.
That is, when the defendant was driving in the breakdown lane, she
appeared to have violated the law. Also, in light of the fact that the
defendant’s car abruptly stopped a few feet from the officer's
cruiser at a place where the car was protruding into the lane of
travel, the police officer was allowed to suspect that the defendant
was in some sort of trouble and in need of the police officer's
assistance. The Court held that the police officer acted reasonably
when opening the car's passenger door and asking the defendant what
was wrong.
Cheryl
A. Pierce v. Paul O. Pierce, No. 2000-81 (May 11, 2001)
In responding to a certified question, the Rhode Island
Court stated that, pursuant to G.L. 1956 § 15-5-16.2(b), the family
court's jurisdiction over a young adult with special needs who has
reached the age of 21 and whose custodial parent was seeking continued
child support, is terminated. Caselaw decided before the language
establishing the age 21 limit was added to the statute did not provide
the family court with jurisdiction to extend a parent's responsibility
for the support of a young adult with special needs beyond the age of
21.
Cindy
L. Patino, as Administratrix of the Estate of Eugene J. Janarelli et
al v. Frank Suchnik et al, No. 99-563 (May 11, 2001)
The plaintiff sued EMTs who responded to a 911 call, but
did not transport injured party to the hospital at party’s request
and after determining that he did not need medical attention.
Pursuant to G.L.
1956 § 23-4.1-12(a), emergency rescue personnel enjoy a
qualified immunity from negligence claims, provided they are not
guilty of gross negligence or willful misconduct in performing their
functions. The plaintiffs requested jury instructions based, in part,
on department of health protocols for EMTs. The trial justice rejected
those instructions and told the jury that the EMTs could be held
liable only if the alleged misconduct was a result of gross negligence
or willful misconduct. The Rhode Island Court held that the
instructions requested by the plaintiffs would have removed the issue
of gross negligence from the jury's consideration.
The judgment was affirmed.
James
E. Bjartmarz v. Pinnacle Real Estate Tax Service, No. 99-223 (May 11,
2001)
The plaintiff alleged that his employer violated the Rhode
Island Whistleblower Act and engaged in improper pay practices.
The employer sought to have the lawsuit stayed because of
contract language requiring arbitration.
The motion justice found the clause unenforceable because he
was fraudulently induced to sign the employment agreement.
The Rhode Island Court stated that, unless the employee's fraud
claim went to the whole agreement and not just the arbitration clause,
issues of fraud would have to handle in the arbitration process.
Because the employee's fraud claims were unsworn and there were
additional facts to be resolved relevant to those claims, the motion
justice should have resolved those predicate facts in a trial, or
evidentiary hearing, limited to that issue of fraud, before ruling on
the motion to stay.
Helen
J. L'Heureux v. David L. L'Heureux, No. 00-3 (May 4, 2001)
The husband's duty under the divorce decree to continue his
ex-wife's coverage under his employer's health insurance plan ceased
pursuant to G.L. 1956 § 27-20.4-1, upon the husband's remarriage,
despite the statute not being mentioned in the decree or final
judgment. The husband
should not have been found in contempt for ending her coverage when he
later remarried.
Americo
J. Zinno v. Richard Parenaude et al, No. 00-145 (May 4, 2001)
The plaintiff received workers’ compensation after
telling his employer that his injury was a result of the work-related
activity of moving a table, rather than disclosing that he was
assaulted by a fellow employee. The
benefits were terminated when it was determined that the injury was
arthritic in nature and not work-related.
The plaintiff sued under the Whistleblower Act, contending that
he was forced into early retirement in retaliation for his
whistleblower activities. He claimed that he was "whistleblowing"
when he attempted to expose defendant co-worker's harassment and
violations of the Occupational Health and Safety Act (OSHA). The Rhode
Island Court affirmed the grant of summary judgment, because the
plaintiff neither reported the alleged harassment or OSHA violations
to a public body, nor did he tell anyone at the defendant university.
Walter
Van Cala v. Tiverton Getty, No. 00-31 (May 4, 2001)
The right to a trial by jury is not waived unless one of
the requirements set forth in Rhode Island Superior Court Rules of
Civil Procedure 39(a) is satisfied. A party who properly asserts a
demand for a jury trial is not required, under Rhode Island Superior
Court Rules of Civil Procedure 38, to renew such a demand on the date
of trial. The plaintiff's right to a trial by jury was denied; the
plaintiff was, therefore, entitled to a new trial.
State
v. David M. Lynch, No. 98-15 (May 4, 2001)
The standard for police identification procedures is
well-settled. The first
step is to determine whether the identification procedure used was
unnecessarily suggestive. The
next step of the analysis --whether the identification lacks
independent reliability despite the procedure's suggestiveness – is
not necessary unless the first part of the test is answered in the
affirmative. With respect
to the use of a photo array, in order to determine whether such an
array poses a substantial risk of misidentification, a comparison must
be made between the description of the suspect given by the witness
with the general characteristics of each individual featured in the
display. Finally, Rule
804(c) applies in all criminal and civil cases, and is not limited to
statements that describe the cause or circumstances of a declarant's
impending death, provided that certain constitutional safeguards are
met. Judgment affirmed.
Dioairo
Mercado v. City of Providence, No. 99-448 (May 4, 2001)
The
plaintiff sued city for injuries sustained when he fell after tripping
in a hole that surrounded a water shutoff valve in a city sidewalk.
The trial justice granted the city's motion for summary judgment on
the ground that the plaintiff failed to give the city notice within 60
days of his injury pursuant to G.L. 1956 § 45-15-9. The Court on
appeal affirmed the judgment. The plaintiff's complaint asserted that
the city had a duty to maintain its sidewalks and negligently failed
to do so. Such an allegation fell squarely within the provisions of §
45-15-9; thus, the plaintiff was required to comply with the 60-day
notice requirement. The plaintiff's failure to provide notice to the
city within the statutory 60-day period was fatal to his claim.
Glayds
L. Cok v. Paula Read, No. 99-478 (May 4, 2001)
The
plaintiff was not given any notice or prior warning that restrictions
on her pro se appearances were contemplated. Although defendant
maintained that she had been harassed by plaintiff's conduct, there
was no evidence that she ever sought relief from such conduct;
instead, defendant sought only additional fees and interest as
sanctions for plaintiff's civil contempt. plaintiff never was given an
opportunity to oppose the pro se restrictions. If the motion justice
wished to prevent plaintiff from appearing pro se in any and all civil
actions, she had to develop a record showing such widespread abuse of
the judicial system as to warrant such a broad prohibition.
Woonsocket
Teachers' Guild, Local 951, AFT v. Woonsocket School Committee, No.
00-14 (May 2, 2001)
A
special education school leased classrooms from a local high school,
and the school's nurse was given the task of administering medicine to
the special education students. The teacher's union filed a grievance
on behalf of the nurse against the school district and sought to have
the dispute arbitrated pursuant to its collective bargaining agreement
(CBA). An arbitrator issued a decision in favor of the nurse and the
Superior Court affirmed the arbitrator's award. The Court held that
the dispute was not arbitrable from its inception and that the
arbitrator exceeded her powers. The Court thus vacated and remanded
the Superior Court’s decision. The provision of health
services to special education students who attended classes at the
high school was within the school district's non-delegable managerial
decision-making authority and could not be circumvented by
negotiation. Even if the issue had been arbitrable, the award would
have been vacated because it was not a plausible interpretation of the
CBA, it produced an irrational result, and it manifestly disregarded a
relevant contractual provision.
Kevin
Tinney v. Harle Tinney et al, No. 99-345 (April 27, 2001)
Plaintiff
sought to force the partition and sale of a 60 room castle owned by
plaintiff and defendant, husband and wife, in joint tenancy. The
plaintiff had received his share of the estate by working first as a
plumber on the estate, gaining the trust and confidence of defendant's
parents, and eventually being adopted by defendant’s mother after
defendant’s father had died. After the mother's death, plaintiff
attempted to sever his interest in the property in order to collect
the proceeds from the forced sale of the property. The trial justice
found that that plaintiff had used undue means to acquire his
interest, except for one portion legally obtained, and denied
plaintiff's petition. The trial justice also ordered plaintiff to
vacate the premises, and plaintiff appealed. The Court found that
plaintiff was precluded, on appeal, from challenging for the first
time the validity of the introduction of evidence on hearsay grounds.
Accordingly, the Court found nothing in the record that demonstrated
the material evidence produced by defendants did not clearly exceed
the required burden of proof.
Sanders
Real Estate Corporation, Agent for Boston Development Company Limited
Partnership - I State. v. Joel D. Landry et al, No. 99-447 (April 27,
2001)
On
appeal, tenants argued that the renewal clause of a lease was
unenforceable because it did not specify the exact rental amount for
the new term or contain a method to determine such rent if the parties
could not agree; that the renewal clause did not apply because tardy
rent payments placed tenants into default which terminated the lease
and resulted in a month-to-month tenancy; that the lease terms were so
onerous as to violate public policy and render the lease void ab
initio; and that damages were assessed incorrectly. The Court held
that (1) the renewal clause was not void for uncertainty or
indefiniteness because the minimum monthly rent for the renewed term
was stated in the lease and was sufficiently definite to be
enforceable; (2) the lease did not terminate due to tardy rent
payments because tenants always cured their default; (3) the lease
terms were the result of negotiation and did not violate public
policy; and (4) the record supported the trial justice's factual
findings as to damages, including mitigation.
John
K. Kalooski v. Albert - Frankenthal AG and Hanna & Hamann Im-und
Export GmbH. No. 99-498 (April 27, 2001)
The
plaintiff was injured while working on a folder machine sold by
defendant. The trial justice held that in order to exercise personal
jurisdiction under the Rhode Island long-arm statute, G.L. 1956 § 9-5-33(a),
defendant must have had sufficient minimum contacts with Rhode Island.
defendant's affidavit stated that the machine in question was not sold
directly to plaintiff's employer or to the Co-defendant, but was
originally sold to a corporation in Germany
The defendant testified that it never advertised, owned any property,
maintained an office, or had any employees in the state. The Court
held that there was insufficient minimum contacts with Rhode Island
to establish in personam jurisdiction.
Michael
Sousa et al v. Town of Coventry et al, No. 00-51 (April 26, 2001)
After
previously rejecting the company's application to construct a tower,
defendant amended a zoning ordinance to permit construction of the
tower. The company then entered into a lease and received a building
permit. The plaintiffs did not file their complaint until more than
four months after the ordinance was amended. Thus, their arguments
challenging the validity of the ordinance were time-barred. The
plaintiffs argued that the appeal period for contesting the issuance
of the building permit did not begin to run until they became aware of
the decision to issue the building permit. The defendant approved the
lease of town property for the construction of the telecommunications
tower at a public meeting, which was noticed and received press
coverage. Thus, plaintiffs had constructive notice that a
building permit would be issued, and they had an obligation to
periodically inspect the public records for the issuance of a building
permit if they had any interest in objecting to its issuance. The
plaintiffs' complaint seeking to challenge the issuance of the
building permit was untimely.
Insurance
Company of North America v. Kayser-Roth Corporation et al, No. 99-531
(April 24, 2001)
Following
a cleaning solvent spill by a tanker truck, the EPA brought suit
against defendant for cleanup under the Comprehensive Environmental
Response, Compensation, and Liability Act. The defendant argued that
it could not be held liable for the cleanup of a site formerly owned
by a subsidiary that had been dissolved pursuant to Rhode Island law. The defendant also notified defendant
insurer. The trial justice found in favor of the EPA, and defendant
unsuccessfully appealed. Thereafter, as part of a larger declaratory
judgment, defendant asserted claims against the insurer claiming that
it had breached its obligation by failing to provide a defense or
indemnify the corporation in the preceding action. The trial justice
found in favor of defendant, and the insurer appealed. The Court found
that the trial justice's sanction was appropriate under the
circumstances in light of defendant insurer's conduct throughout the
pretrial period.
State
of Rhode Island ex. rel. Town of Middletown v. Alden C. Kinder, No.
00-329 (April 23, 2001)
A
police officer observed defendant's vehicle traveling at 65 mph in a
posted 25 mph zone. The vehicle swerved into the passing lane without
signaling and narrowly missed the front end of another vehicle. The
officer pursued defendant's vehicle into another town and arrested
defendant. The Court held that the officer's observations were
sufficient to pursue defendant across town lines. G.L. 1956 § 12-7-19
provides that an officer who enters another town in close pursuit of a
person in order to arrest him or her for a violation of the motor
vehicle code has the same authority to arrest and hold the person in
custody as members of the municipal peace unit in any city or town.
G.L. 1956 § 31-27-1 provides that any person who operates a
motor vehicle recklessly so that the lives or safety of the public
might be endangered is guilty of a misdemeanor. The Court held that,
based on the totality of the circumstances, the officer had probable
cause to arrest defendant for reckless driving.
John
Marandola Plumbing & Heating Company v. Delta Mechanical, Inc.,
No. 98-465 (April 23, 2001)
Heating
company and mechanical company both bid on a project to refurbish a
school. The mechanical company was the lowest bidder and won the bid,
but was later found to have incorrectly calculated the overtime
benefits paid to its employees. The heating company sued the
mechanical company, alleging that because the mechanical company had
violated the prevailing wage law, it was entitled to damages as the
next-lowest bidder on the project. The trial justice granted the
mechanical company's motion for summary judgment. Upon review, the
Court vacated the order granting summary judgment to the mechanical
company, and remanded the case for a trial on the merits. The
Court found that a genuine issue of material fact existed about
whether the school committee would have rejected the heating company's
bid.
Clifford
McFarland, Read & Lundy, Inc. v. Michael Brier, et al, No. 99-374
(April 23, 2001)
Supplier
had retained corporate accounting firm, owned by accountant.
Thereafter, accountant and a former employee of supplier formed a
competing corporation and solicited business from supplier's
customers. Supplier learned of this and lowered its prices. A
restraining order was issued barring defendants from soliciting
supplier's customers. The trial justice found that supplier failed to
mitigate damages by not raising prices after the restraining order was
issued. This reduced the damage award and precluded damages for loss
of value of the supplier's stock. The trial justice also found that
defendants' conduct did not justify punitive damages and denied
judgment against the corporate accounting firm. The Court
reversed the decision of the trial justice, finding that the supplier
had mitigated its damages. Furthermore, the matter was a
violation of the Uniform Trade Secrets Act, so the exemplary damages
standard in that statute, and not common law, should have been
applied. The Court directed an award of punitive damages and attorneys
fees. The corporate accounting firm, an alter ego of accountant, was
jointly liable.
In
re Micaela C., No. 99-43 (April 19, 2001)
The
respondent, father, appealed the termination of his parental rights
claiming that there was no clear and convincing evidence to support
termination. However, the Court found that the record supported the
trial justice's findings that DCYF developed numerous case plans and
made referrals for respondent to address those issues which led to the
child's placement. respondent's refusal to cooperate repeatedly
undermined those efforts. The child never resided with respondent and
he had never parented her. He did not comply with DCYF's treatment
plan or meet its objectives. Given the likely duration of his
incarceration for first-degree murder, it was improbable that he would
be able to care for or meet the needs of the child for a long period
of time. Further, DCYF was not required to make reasonable efforts to
reunify respondent and child, as respondent was previously proven to
be unfit as to another one of his children. G.L. 1956 §
15-7-7(a)(2)(iv).
Landy
Paolella v. Radiologic Leasing Associates et al, No. 99-526 (April 18,
2001)
Doctor
and partners entered into an agreement to create a partnership. They
were also shareholders in the medical practice. When the doctor
withdrew from the practice, he was terminated from the partnership. He
sued for his share of the partnership. His motion for summary judgment
was denied. After additional discovery, he filed a second motion for
summary judgment based on a different section of the agreement. The
partners tried to introduce an oral agreement changing the terms of
the agreement. The second motion was granted, and the evidence was not
allowed. The partners appealed. Because the alleged prior oral
understanding sought to modify the written agreement, it was barred by
the parol-evidence rule. The second motion for summary judgment was
based on a different section of the agreement and on different
evidence. The law-of-the-case doctrine did not apply.
Carl
von Bernuth et al v. Zoning Board of Review of the Town of New
Shoreham et al, No. 99-567 (April 17, 2001)
The
applicants applied to the Board for a dimensional variance relieving
them from setback and lot-size restrictions of a zoning ordinance. The
Board granted the application and the trial justice affirmed the
Board’s decision. On appeal, the applicant argued that the decision
was defective because no legally competent evidence existed in support
of the position that the applicants had no reasonable alternative for
the enjoyment of the permitted use of the lots without the relief
sought and defendant's decision failed to address that statutory
requirement. The Court agreed there was no evidence in the record that
a hardship existed or that the applicants had no reasonable
alternative. Therefore, the Court concluded that in affirming
defendant's grant of relief, the trial justice misapplied the law and
made findings that were clearly wrong. Accordingly, the Court held the
trial justice erred in affirming defendant's decision that did not
comply with statutory provisions of G.L. 1956 § 45-24-69(d).
Loretta
A. Provost et al v. Dennis Finlay, as Treasurer of the Town of
Smithfield, No. 99-549 (April 13, 2001)
The
plaintiff filed a complaint under G.L. 1956 § 45-15-8 for injuries
she allegedly sustained when she fell into a manhole while walking on
a sidewalk in defendant's municipality. The plaintiff admittedly
failed to comply with the 60-day notice of claim requirement of G.L.
1956 § 45-15-9. The plaintiff contended, however, that the
defendant should be estopped from asserting its defense of untimely
notice because it had waited almost three years before filing its
dismissal motion. Unlike the notice required by G.L. 1956 § 45-15-5,
notice pursuant to § 45-15-9 could not be waived voluntarily or
involuntarily. Under § 45-15-9, sufficient notice was a
jurisdictional prerequisite to bringing suit against a municipality.
The purpose of the notice of claim was to give the municipality an
opportunity to investigate claims and, if appropriate, to settle them
without litigation.
Helen
Petrone et al v. The Town of Foster, R.I. by and through its Treasurer
et al, No. 99-2 (April 13, 2001)
Appellants
purchased some land and then subdivided it into 10 portions without
planning board approval. However, the county clerk recorded the deeds.
Appellee prevented appellants from selling the lots separately.
Appellee subsequently purchased the land at a tax sale. The Court held
that the town clerk should not have accepted the deeds for recording
because they purported to convey less than the entire tract of
contiguous land owned by the grantor without prior approval of the
planning board. Moreover, appellants were not entitled to rely on the
fact that the town accepted those deeds for recording and then
separately taxed the lots since such fact was not conclusive in
determining the legality of the subdivision. Finally, appellants had
not exhausted their administrative remedies and their claim was not
ripe.
Carol Najarian, Executrix of the Estate of Hope L. Anderson v. National
Amusements, Inc., et al, No. 99-539 (April 12, 2001)
Decedent was a
resident of Rhode Island
and attended defendants' movie theater in Massachusetts.
In the utter darkness decedent mistakenly thought there was a wall to
her left, reached to steady herself on the nonexistent wall, lost her
balance, fell, and suffered a broken hip and broken left elbow. The
jury returned a verdict finding defendants 40 percent negligent and
decedent 60 percent negligent. The Court applied choice of laws
principles and determined that Massachusetts’s
comparative negligence statute was the applicable law. In an action
for a personal injury, the local law of the state where the injury
occurred determined the rights and liabilities of the parties, unless,
with respect to the particular issue, some other state had a more
significant relationship.
Barbara
Tateosian et al v. Celebrity Cruise Services, Ltd., No. 99-517 (April
12, 2001)
The
plaintiff couple purchased two cruise line tickets on defendant's
ship. Attached to their ticket was a contract which limited the time
to bring a negligence action to one year and selected the forum. After
embarking on their cruise, the wife became sick from food poisoning.
The plaintiffs did not file their suit until 18 months after the
accident. The trial justice dismissed their action. The Court
affirmed the decision of the trial justice finding that the contract
gave clear notice of the cruise contract terms because the warnings on
the embarkation coupons were sufficiently obvious and were
emphatically brought to the plaintiffs' attention. In addition, after
receiving notice of the injury, defendant reminded plaintiffs that all
rights were reserved including those set out in the cruise ticket
contract. Therefore, the contract was fundamentally fair and
plaintiffs were bound by its terms.
In
re Brandon A., No. 99-129 (April 11, 2001)
The
trial justice conducted a hearing on the petition for termination of
parental rights. respondent father was personally served; however, he
notified the court that he would be unavailable for the hearing
because he was incarcerated. respondent was represented at the hearing
by a court-appointed attorney when the Family Court entered a default
judgment against respondent. respondent appealed contending that the
default against him was error because it deprived him of his
constitutional right to meaningful participation in the termination
hearing that took place during his incarceration out of state. Therefore,
the Court did not reach the merits of the termination of the
respondent's parental rights, because the respondent was represented
by counsel at the termination hearing. The entry of a default
judgment based on the lack of a personal appearance was clearly
erroneous.
State
v. David Barrett, No. 97-286 (April 6, 2001)
The defendant,
along with two friends, drove to a gas station because he was angry
with the attendant who worked there. While there, defendant
encountered the attendant's friend, they argued, and defendant shot
the friend three times. Two psychiatrists testified that defendant
suffered from bipolar disorder and opined that he was not able to
appreciate the wrongfulness of his conduct, or to conform his behavior
to the requirements of the law, when the crime occurred. The Court
held that (1) the jury was allowed to disregard the testimony of
defendant's two psychiatrists, and believe the prosecution's one
expert witness, in finding defendant guilty of second-degree murder;
(2) the trial justice did not commit error when he refused to allow
defendant's lay witnesses, who were not present during the shooting,
to express their opinion about defendant's mental state; (3) defendant
did not acquire the right to ask improper questions on
cross-examination, merely because he had not objected when the
prosecutor asked similar questions on direct examination; and (4) the
trial justice did not err by rejecting defendant's motion for judgment
of acquittal, or his motion for a new trial.
Elton
Simpson v. State of Rhode Island, No. 99-267 (April 4, 2001)
Petitioner
was represented by various lawyers during his rape prosecution. On
application for post-conviction relief, he argued that his first two
public defenders had an inherent conflict of interest, denying him
effective representation in violation of U.S. Const.
amend. VI, XIV. While the Court agreed that a conflict of interest was
a per se violation of the right to effective counsel, it applied a
rule of close case-by-case review, and held that petitioner failed to
meet his burden to show that an actual conflict existed. No federal or
Rhode Island law established a per se conflict between successive
public defenders, and the record in fact reflected that both lawyers
did well by an uncooperative client.
In
re John F. Lallo, No. 00-515 (April 3, 2001)
A
judge pleaded guilty to making false material declarations and the
Commission on Judicial Tenure and Discipline (commission) imposed a
monetary sanction totaling his salary for the days he was not on the
job. The judge claimed the commission lacked authority to impose the
sanction and that it was a penalty that entitled him to a jury trial.
The Court found that the commission had authority to impose the
sanction, and that it was civil and restitutionary in nature. However,
the Court found the sanction had been miscalculated and remanded the
matter for a more accurate determination that could include
prosecution costs. The commission was obliged to file its
recommendations for sanctions and a transcript of its proceedings with
the Court. Upon doing so, those records became public documents and
the citizen action group was entitled to receive a copy.
Anthony
Sciacca et al v. Gloria Caruso et al, No. 99-441 (April 2, 2001)
The
defendant obtained planning-board approval to subdivide her previously
merged lots back to their original dimensions, thereby restoring them
to their undersized status. Thereafter, defendant submitted an
application to the town's zoning board with respect to the smaller of
the two lots seeking a dimensional variance to build a single-family
house. The zoning board granted her request for a dimensional
variance, which the trial justice affirmed. On appeal, the Court
determined the trial justice decision overlooked the self-created
hardship rule of G.L. 1956 § 45-24-41(c)(2). Specifically, the Court
noted that defendant sought relief from dimensional zoning
requirements that became applicable to her substandard lot only
because of her earlier illegal subdivision of the property before the
planning board. Therefore, the Court concluded that by ignoring these
circumstances and refusing to consider defendant's "prior
action" in causing the planning board to subdivide her single
merged lot back into two undersized lots, the zoning board and the
trial justice misapplied state law, respectively, in granting and then
in upholding the requested variance.
Loraine
A. Kelley v. Cowesett Hills Association, No. 99-419 (March 30, 2001)
The
plaintiff filed a complaint against defendant alleging negligence,
assault and battery, and deceptive trade practices. The trial justice
granted defendant's motion for summary judgment. On appeal, plaintiff
argued: (1) the trial justice erroneously reconsidered the original
denial of summary judgment on the negligence and deceptive trade
practices claims, thus violating the law-of-the-case doctrine; and (2)
that because her discovery and concerns about asbestos fell within the
statute of limitations, her assault and battery claim was not time
barred and should not have been dismissed. The Court was satisfied
that no genuine issues of material fact existed for plaintiff's
claims. Specifically, the Court found plaintiff could not establish a
prima facie case of negligence nor was her claim for assault and
battery timely. Additionally, the Court determined plaintiff was not a
consumer as contemplated by the Deceptive Trade Practices Act.
Finally, the Court concluded plaintiff's inability to come forward
with any additional evidence of negligence constituted a sufficient
change in circumstances to defeat the law-of-the-case doctrine.
In
re Jennifer G., No. 99-488 (March 19, 2001)
Petitioner
child welfare agency sought termination of respondent mother's rights
pursuant to former G.L. 1956 § 15-7-7(a)(3) after her daughter had
spent several years in specialized foster care. respondent challenged
the factual support for the trial justice's findings of reunification
efforts, parental unfitness, and failure to cooperate with efforts to
provide psychiatric care. The Court held that the record provided
ample evidence that petitioner repeatedly devised plans, which
included treatment of respondent's mental illness, and that respondent
refused to cooperate. The untreated illness made respondent unable to
function as a parent and made termination in the child's best
interests. Finally, under the circumstances, it was permissible to
include some of the time during which the child was in petitioner's
custody under a temporary rather than a permanent order in calculating
whether the child had been in care for the requisite 12 months, where
services were offered to respondent throughout.
State
v. George R. Lopes, No. 98-12 (March 16, 2001)
The
defendant was tried and convicted by a jury of second-degree child
sexual molestation. The defendant appealed and asserted that, before
his trial began, the trial justice abused his discretion and
prejudiced his defense by failing to rule on a state's motion in
limine to exclude several of his intended character witnesses and that
the trial justice erred in excluding the testimony of those character
witnesses. The Court found that the trial justice properly excluded
the character witness testimony where the witnesses failed to provide
sufficient foundation from which to form an opinion of the defendant's
reputation in the community. The Court concluded that the trial
justice did not abuse his discretion in excluding the proffered
reputation evidence. Furthermore, there was no record evidence
of the trial justice's failure to rule on the state's pretrial motion
in limine.
Leo
Norton et al v. Russell J. Boyle, No. 99-457 (March 16, 2001)
The defendant
was the retired founder of a funeral home. After his retirement he
continued to assist at funerals. On one particular day while assisting
with a funeral, defendant decided to move the family limousine closer
to the grave site but had difficulty putting the limousine into gear
and it lurched forward, hitting the car in front of it, creating a
chain reaction. The plaintiff, an employee of the funeral home, had
his leg pinned between the bumpers of two cars as a result of the
accident. The plaintiff received worker's compensation benefits but
filed suit against defendant. The defendant alleged that plaintiff
could not maintain the action against him because he was an employee
of the funeral home. The Court found that the evidence at trial
indicated that the funeral home agreed to have defendant act on the
funeral home's behalf. The Court found that defendant possessed
the authority to move company vehicles in assisting the funeral
proceedings and was an agent of the funeral home when the accident
occurred.
Helen
Ames et al v. Oceanside Welding and Towing Company, Inc., et al, No.
99-300 (March 16, 2001)
Appellant
had been a resident of Appellee’s apartment complex for eight years.
She and other residents routinely parked their vehicles along a
private driveway. The complex had a long-standing policy that during
heavy snow, residents were prohibited from parking their vehicles on
the road to give plows or other vehicles access. The policy provided
that improperly parked cars would be towed at the owner's expense.
After a heavy snow, plaintiff's car was towed from the driveway and
she sued for conversion, unfair trade practices, and other torts. The
Court affirmed summary judgment for defendants, because the record
showed that plaintiff and the other residents had sufficient notice of
the parking policy in snowy conditions and, in fact, consented to the
consequences of non-compliance.
State
v. Carl W. Crocker, No. 98-334 (March 15, 2001)
Following
the 1981 arraignment of defendant on criminal charges of sexually
assaulting an eight-year-old child, the Superior Court released him
from custody on his own personal recognizance. After receiving advance
notice, defendant not only failed to show up in 1981 for his scheduled
pretrial conference, but also, despite knowing of an outstanding
warrant for his arrest, he deliberately stayed away from this
jurisdiction for the next sixteen years. When defendant finally was
arrested and forced to return to Rhode Island in 1997, defendant
asserted that all charges against him should be dismissed because the
state had not provided him with a speedy trial because of its
negligence in failing to arrest him sooner. The trial justice
denied this motion and a jury convicted defendant on all charges. On
appeal, the Court found that defendant's evasive misconduct was not
merely negligent, but willful and deliberate. Thus, he was more
culpable than the state for causing the delay in his trial. As such,
the judgment was affirmed.
Patricia
A. Berard v. Ryder Student Transporation Services, Inc., No. 99-260
(March 15, 2001)
After
being granted the right to sue by the Rhode Island Commission for
Human Rights (commission), plaintiff attempted to file a pro se
complaint against defendant, failing to set forth a specific cause of
action or a claim upon which relief could be granted. The trial
justice ordered plaintiff to file a complaint capable of evaluation
and response by defendant. The plaintiff failed to do so, and her case
was dismissed. The Court affirmed. The plaintiff failed to
allege the act defendant committed that entitled her to relief, and
plaintiff could not rely on her pleadings before the commission to
provide defendant with the allegations. The Court vacated the
dismissal order and remanded the case, instructing the trial justice
to dismiss the action without prejudice.
Michael
Marra v. Joseph McDonald d/b/a Kar Wash King - Power Wash., No. 99-284
(March 15, 2001)
The
plaintiff was convicted for possessing hazardous materials. The
plaintiff sought to establish liability and sought contribution from
the defendant for the transfer of the hazardous waste. The
plaintiff alleged that the defendant misled him when he took
possession of the barrels containing this material. The
plaintiff argued that he was told that these barrels contained dirty
water, not hazardous materials. The trial justice's judgment was
affirmed. First, the trial justice acted within its discretion when it
excluded the testimony of plaintiff's insurance broker. The trial
justice properly found that the witness was not qualified to provide
expert testimony on the subject of plaintiff's inability to secure
bonding after his conviction, and that the bonding incident described
by the witness was too remote in time from the alleged
misrepresentation. Next, the trial justice did not err in denying
plaintiff a new trial because the evidence was evenly balanced and
plaintiff had failed to tip the evidentiary scales in his favor. The
trial justice found both stories about evenly credible. Thus, it
properly concluded that plaintiff had failed to satisfy his burden of
proving his claim by a preponderance of the evidence.
Catherine
C. Lagana v. International Brotherhood of Electrical Workers' - Local
1274, No. 99-66 (March 15, 2001)
The
plaintiff argued that an action against a union for unfair
representation was a separate cause of action under state law that was
not precluded or governed by federal law. plaintiff argued that in McDonald
v. RI General Council, 505 A.2d 1176 (R.I. 1986) the Court
reviewed Section 301 of the Labor Management Relations Act, codified
at 29
U.S.C.S. § 185 (1978), (LMRA) and found that G.L. 1956 § 9-1-14
applied. The Court responded that McDonald did not apply here. The
employer in McDonald was a municipal employer. As a municipal
employee, the plaintiff in McDonald did not have a federal
cause of action under LMRA; therefore, the six-month federal statute
of limitations was inapplicable. A private-sector employee's action
for unfair representation against his or her union was covered by and
subject to federal law. This case qualified as a hybrid type of action
under LMRA, since the employee's grievance against the employer and
defendant necessarily involved interpretation of the
collective-bargaining and supplemental agreements. Under federal law,
suits by private-sector employees against their unions for alleged
unfair representation were governed by the § 160(b) six-month statute
of limitations.
Shelby
Insurance Company v. Northeast Structures, Inc., No. 99-487 (March 14,
2001)
Appeal
from a Superior Court summary judgment in favor of the plaintiff,
Shelby Insurance Company. The
Court reversed the decision of the trial justice, finding that because
there was a question of fact, summary judgment was not appropriate.
Phoenix
J. Finnegan, A Rhode Island General Partnership v. L.K. Goodwin Co.,
Inc., et al. No. 99-403 (March 14, 2001)
Appeal from a Superior Court judgment which denied
plaintiff’s petition to foreclose defendants’ right of redemption.
The Court affirmed the decision of the trial justice, finding
that any interest that was reserved or not conveyed by deed should
have been noted in plaintiff’s quitclaim deed.
Consequently, all of plaintiff’s interest in the property was
extinguished, including the defendants’ right of redemption.
Any mistake that plaintiff made by omitting any other amounts
due was unilateral and did not invalidate the redemption deed.
State
v. Byron Barber, No. 99-23 (March 14, 2001)
Appeal from a Superior Court adjudication that defendant
violated the terms of his probation while he was serving a sentence at
the Adult Correctional Institutions.
The Court affirmed the decision of the trial justice, finding
that the defendant received proper notice of the proceedings against
him, and that an individual could have been found to violate his
probation while still incarcerated.
In
the Matter of John F. Lallo, No. 00-526 (March 14, 2001)
Petition to revoke or suspend the license to practice law
in accordance with Article III, Rule 24 of the Court Rules of
Disciplinary Procedure. respondent
entered a guilty plea to the charge of violating 18 U.S.C. § 1623.
The Court held that respondent should be disbarred from the
practice of law. In so
finding, the Court noted that it has long held that conviction of a
felony offense will result in the disbarment of any attorney except in
the rarest of cases. The
Court found no reason to deviate from this standard in the instant
matter.
In
the Matter of Joseph A. Cozzolino, No. 01-56 (March 14, 2001)
The Court Disciplinary Board rendered a decision and
recommendation that the respondent be suspended from the practice of
law. The Court adopted
petitioner’s findings that respondent violated Article V, Rules
8.1(b) and 1.3 of the Court Rules of Professional Conduct.
The Court also adopted petitioner’s recommendation that the
respondent be suspended from the practice of law for sixty days,
concluding that the sanction was appropriate in light of the dual
purpose of professional discipline to protect the public and maintain
the integrity of the profession.
M
& B Realty, Inc. et al v. Pierre Duval et al, No. 99-375
(March 12, 2001)
Cross-appeals from a Superior Court judgment entering
summary judgment in favor of the plaintiffs, but denying plaintiffs’
claim for punitive and compensatory damages.
The Court reversed the decision of the trial justice, finding
that a conflict in the evidence and an issue of material fact
remained.
Caroline
Barone v. The Christmas Tree Shop, No. 98-525 (March 12, 2001)
Appeal from a Superior Court decision entering judgment as
a matter of law in favor of the defendant.
The Court agreed with the conclusion of the trial justice,
finding that there was a complete absence of evidence upon which the
defendant’s negligence could be predicated.
Town
of North Kingstown v. Gerry Albert et al, No. 99-211 (March 6, 2001)
Appeal from a Superior Court judgment entered in favor of
the defendants. The Court
affirmed the decision of the trial justice, finding that excavation to
create an irrigation pond was an accessory and essential use of a farm
and was allowed under the zoning ordinance and R.I.G.L. 1956 § 2-23.
Moreover, the Court held that the excavation project did not
constitute a “use” under the zoning ordinance, and thus, was not
subject to the ban on earth removal use in rural residential (RR)
districts. Finally, the
Court found that having taken the erroneous position that the project
could not obtain a license under the removal ordinance because it was
a forbidden use in an RR district, the town cannot now apply the
removal ordinance to the project after it has been completed.
State
v. Cornelius Breen, No. 98-41 (February 26, 2001)
Appeal from a Superior Court judgment denying defendant’s
motion for judgment of acquittal. The Court affirmed the decision of
the trial justice, finding that sufficient evidence existed to support
a judgment of conviction for stalking.
In addition, the trial justice did not abuse his discretion in
admitting evidence of the defendant’s previous conviction.
The Court found that the admission of documents relating to the
conviction, although erroneous, was harmless error.
Paul
E. Romano v. The Retirement Board of the Employees' Retirement System
of the State of Rhode Island, No. 99-394 (February 19, 2001)
Appeal from a judgment of the Superior Court, which upheld
a decision of the board that suspended the plaintiff’s pension.
The Court affirmed that portion of the trial justice’s ruling
holding that the doctrine of equitable estoppel did not preclude the
board from suspending future retirement payments to the plaintiff.
The Court quashed the trial justice’s sua sponte order of
restitution because there was insufficient evidence to determine, as a
matter of law, whether it was equitable in these circumstances to
require restitution.
In
re Suebun V. et al, No. 99-472 (February 16, 2001)
Appeal from a decree of the Family Court terminating
respondent’s parental rights to her children.
The Court affirmed the decision of the trial justice, finding
that the Department of Children, Youth and Families (DCYF) established
by clear and convincing evidence that the children had been in the
care and custody of DCYF for at least twelve months and that there was
no substantial probability that the children would be returned to
their parents’ care within a reasonable period.
The Court concluded that the evidence overwhelmingly supports a
finding of parental unfitness.
In
re Cody F., No. 00-105 (February 16, 2001)
Appeal from a decree of the Family Court terminating
respondent’s parental rights to his son.
The Court affirmed the decision of the trial justice,
concluding that there is sufficient evidence in the record to support
the trial justice’s finding of abandonment and desertion.
The Court also rejected respondent’s claim that the
Department of Children, Youth and Families failed to make reasonable
efforts to establish reunification with respondent’s son, since
respondent has never held nor seen since the day of his birth.
State
v. Jeffrey Bettencourt, No. 99-476 (February 15, 2001)
Appeal from a Superior Court judgment denying defendant’s
motion for reduction of sentence pursuant to Super. R. Crim. P. 35.
The Court affirmed the decision of the trial justice, finding
that the defendant failed to show that the original sentence was
unduly severe or that circumstances have changed so as to require a
reduction of sentence.
Joseph
W. Salvatore v. State, No. 99-27 (February 15, 2001)
Appeal from a Superior Court judgment denying
post-conviction relief. The Court affirmed the decision of the trial
justice, finding that from the totality of the evidence, the trial
justice did not overlook or misconceive any material evidence, nor was
he otherwise clearly wrong. Moreover,
the Court found that no evidence of prejudice to the applicant was
presented on his application for post-conviction relief.
State
v. David Medina, No. 99-107 (February 15, 2001)
Appeal from a Superior Court judgment granting
defendant’s motion to dismiss. The Court reversed, finding that the
trial justice was clearly in error in dismissing the information
charging the defendant with felony assault and battery.
The Court held that the trial justice had no authority under
the Superior Court Rules of Criminal Procedure to dismiss a case
without allowing the state to proceed with the presentation of
evidence in support of its charges.
In
re Jarvis R. et al, No. 99-371 (February 15, 2001)
Appeal from a Family Court judgment terminating
respondent’s parental rights to her children.
The Court affirmed the decision of the trial justice,
concluding that the record supports a finding that the Department of
Children, Youth and Families made reasonable efforts to address the
problems that led to the children’s removal from the home and to
reunify the family. The
Court also found that there was no merit to respondent’s argument
that the Family Court placed upon her the burden of establishing her
mental impairment. Rather,
the trial justice merely held that respondent had the burden of going
forward with the evidence to give some indication that she was
mentally impaired and unable to understand the social services and
related case plans that were prepared for her.
State
v. Carlo Belloli, No. 99-413 (February 15, 2001)
Appeal from a Superior Court judgment of conviction of
first-degree murder and conspiracy.
The Court affirmed the convictions, finding that the trial
justice did not abuse his discretion in allowing into evidence
photographs of the victim, since they were clearly relevant and
necessary to the issue of torture and aggravated battery.
In addition, the Court found that the state was not required to
prove that the victim died while in Rhode
Island in order for the trial justice to assume jurisdiction in the
prosecution.
State
v. Albert Verrecchia, No. 99-458 (February 15, 2001)
Appeal from Superior Court convictions for multiple crimes,
including racketeering, burglary, conspiracy, robbery, and receiving
stolen goods. The
defendant challenged the trial justice’s denials of his motion to
suppress evidence, his right to a speedy trial, his motion to sever,
and his request for jury instructions on entrapment and duress.
The Court reversed in part, holding that the defendant
possessed a legitimate expectation of privacy in the garage he rented.
Therefore, he was entitled to challenge the search of his
garage and the seizure of the guns and other property the police found
there. The Court rejected
defendant’s other arguments and affirmed his convictions in all
other respects.
Bradford
Dyeing Associates, Inc. v. J. Stog Tech GmgH., No. 99-440 (February
14, 2001)
Cross-appeals to determine whether a Superior Court trial
justice erred in vacating an arbitrator’s award concerning a
contract dispute between the two parties to the case.
The Court concluded that the trial justice did err in vacating
the arbitrator’s award, concluding that the trial justice erred in
failing to recognize the clear findings of fact made by the
arbitrator.
Michael
Rubino v. Donna Rubino, No. 99-443 (February 12, 2001)
Appeal from a decision of the Family Court granting the
parties a divorce and concluding that the rights and liabilities of
the parties, pursuant to the divorce, were to be determined by the
provisions of G.L. 1956 § 15-5-16.1, the equitable distribution
statute, rather than the terms of the antenuptial agreement signed by
the parties two days before they were married.
The Court reversed the decision of the Family Court with
respect to the equitable distribution issue, concluding that the trial
justice was clearly wrong in finding as a fact that defendant had
abandoned the agreement by accepting an advancement of $5,000.
In
the Matter of Robert F. DiPippo, No. 01-58 (February 9, 2001)
The Court Disciplinary Board rendered a decision and
recommendation that the respondent be disbarred from the practice of
law. The Court adopted
petitioner’s findings that respondent violated Article V, Rules
1.15(a), (b) and (d); 1.16(a)(1) and (a)(6); and Rule 8.4(c) of the
Court Rules of Professional Conduct.
The Court also adopted petitioner’s recommendation that the
respondent be disbarred from the practice of law, concluding that
respondent’s conduct was intentional and willful and he was no
stranger to the disciplinary process.
Marilyn
J. Moretti v. Vincent F. Moretti, No. 99-171 (February 9, 2001)
Appeal from a Family Court judgment granting an absolute
divorce and providing for the distribution of certain assets.
The Court sustained defendant’s appeal concerning the
valuation of the goodwill of Tangleridge Landscaping, Inc., finding
that the case should be remanded to the Family Court so that
enterprise goodwill, as opposed to personal goodwill, may be evaluated
and applied to the overall value of Tangleridge, taking into account
the risk factor that would be applicable if defendant left the
business. The Court
affirmed the judgment in all other respects, concluding that the
dissipation of assets and the award of alimony arguments raised by the
defendant are without merit.
State
v. Donald Desire, No. 98-530 (February 9, 2001)
Appeal from a Superior Court order denying defendant’s
motion to vacate his plea of nolo contendere.
The Court affirmed the decision of the trial justice, finding
that since the proper avenue for a claim attacking the voluntariness
of a plea is by way of an application for postconviction relief, this
appeal is not properly before this court.
The Court also found that were the motion proper, the trial
justice did not err in denying the requested relief, as the plea was
voluntary an intelligently made and is not subject to collateral
attack.
State
v. Charles Smith, No. 99-298 (February 8, 2001)
Appeal from a judgment of conviction entered in the
Superior Court in which a jury found the defendant guilty of murder in
the first degree, committed by means of torture and aggravated
battery. The trial justice
denied the defendant’s motion for a new trial and sentenced him to a
term of life imprisonment without the possibility of parole.
The defendant was also sentenced to a consecutive term of
fifteen years to serve as a habitual offender.
This appeal followed. The
Court affirmed the judgment of the Superior Court with regard to the
defendant’s conviction and sentence to life imprisonment without the
possibility of parole. However,
the ruling of the trial justice with respect to the defendant’s
habitual status is reversed because the state failed to meet its
burden of proof under G.L. 1956 § 12-19-21(b).
Margerty
K. Lerner, et al v. Michael A. Ursillo et al, No. 99-460 (February 7,
2001)
Appeal from a Superior Court entry of summary judgment in
favor of the defendants. The
Court affirmed the decision of the trial justice, finding that the
plaintiffs failed to provide the requisite clear and convincing
evidence necessary to establish the existence of an oral agreement.
Theodore
E. Stebbins, Jr. v. Melinda Blauvelt Wells, et al, No. 99-335
(February 7, 2001)
Appeal from a Superior Court entry of summary judgment in
favor of the defendants. The
Court reversed the decision of the trial justice, finding that a
genuine issue of material fact existed regarding whether the severity
of the erosion amounts to a disclosable defect, and that summary
judgment was therefore precluded.
Donna
Flanagan, Individually and as Parent and Next Friend of Ashley
Flanagan v. Conrad Wesselhoeft, M.D., No. 99-121 (February 5, 2001)
Appeal from a Superior Court judgment in favor of the
plaintiffs and a cross –appeal challenging the constitutionality of
the Rhode
Island statute governing the computation of interest in medical
malpractice actions. The
Court affirmed the decision of the trial justice finding that the
evidence relating to the absence of informed consent would have been
sufficient to support the jury’s verdict in favor of plaintiffs, and
that evidence was more than sufficient to overcome a motion for
judgment as a matter of law. The
Court also found that since the Attorney General was not served with a
copy of the proceeding and was not given an opportunity to be heard at
the trial level, the constitutionality issue is not properly before
the Court.
Herbert
Katz v. Alphonse Mangiarelli, Jr., et al, No. 00-120 (January 30,
2001)
Appeal from a Superior Court summary judgment in favor of
the plaintiff. The Court
reversed the decision of the trial justice, finding that significant
issues of fact existed concerning the final amount of the invoice and
the reasons for the plaintiff’s withdrawal as the defendants’
attorney. Therefore,
summary judgment was improper.
Richard
J. Dyer in His Capacity as Trustee of 19 Blue Beverage Realty Trust v.
Ryder Student Transportation Services, Inc., No. 99-384 (January 30,
2001)
Appeal from a Superior Court judgment entered in favor of
the plaintiff. The Court
affirmed the decision of the trial justice, finding that because the
defendant failed to strictly comply with the terms of the renewal
provision in the lease, the lease terminated by its own terms on June
30, 1998 and
Ryder became a holdover tenant from that date forward.
In
re Craig G., Jr., et al, No. 99-299 (January 30, 2001)
Appeal from a decree of the Family Court terminating the
respondent’s parental rights to his children.
The Court affirmed the decision of the trial justice, finding
that although not required, reasonable efforts at reunification were
made in this case and that the finding of abandonment was appropriate
and supported by the evidence.
In
re Ariel S., No. 99-195 (January 30, 2001)
Appeal from a decree of the Family Court terminating the
respondent’s parental rights to his daughter.
The Court affirmed the decision of the trial justice, finding
that the Department of Children, Youth and Families established a
prima facie case of abandonment and desertion that was not rebutted by
the respondent.
State
v. Jesus Constreras-Cruz, No. 98-533 (January 30, 2001)
Appeal from Superior Court judgments of conviction on
counts of burglary and first-degree sexual assault.
The Court affirmed the decision of the trial justice, finding
that the evidence clearly demonstrated that the defendant had no
permission to enter the bedroom but instead entered the victim’s
room with the intent to commit a felony therein.
Therefore the trial justice did not err in denying the motion
for judgment of acquittal.
Lucille
M. Couture et al v. Pawtucket Credit Union, No. 99-400 (January 29,
2001)
The Court held that
defendant was entitled to summary judgment because defendant's right
to set off survived a discharge in bankruptcy. The setoff claim
satisfied the requirements of 11
U.S.C. § 553(a), and defendant was not required to file a
proof of claim to protect its setoff right from discharge. The
defendant acquired a mortgage loan executed by plaintiff.
The defendant also maintained four time-deposit accounts held
by plaintiff and plaintiff’s parents.
Subsequently, plaintiff filed for bankruptcy, and defendant
bank froze the time-deposit accounts.
Following the discharge, a foreclosure sale resulted in a
deficiency and defendant applied the funds in the accounts against the
deficiency.
In
re John Oliveira, No. 99-15 (January 29, 2001)
Appellant and his
sister attempted to attack the validity of their father’s will.
The probate judge ultimately rejected this challenge.
Said decision was appealed and later dismissed by the Superior
Court as being untimely. On
appeal, the Court affirmed the trial justice’s dismissal of the
probate appeal since it was untimely.
The decision filed by the probate judge equated to a
“decree” because it was a judicial act, altered the parties’
respective rights, and ultimately terminated litigation. The decision
was signed by the probate judge and duly filed by the town clerk.
In
re Crystal C. et al, No. 99-301 (January 29, 2001)
The
trial justice held that respondent was unfit pursuant to G.L.
1956 § 15-7-7(a)(2)(iii), and (a)(3).
This Court affirmed the trial justice’s order which
terminated respondent’s parental rights. On
appeal, the Court rejected respondent’s argument that the DCYF
failed to prove by clear and convincing evidence that reunification
was unlikely within a reasonable period of time as defined in the
statute. The Court also concluded that the record clearly supported
the trial justice's finding that termination of respondent's parental
rights would be in the best interests of the three children.
State
v. James Pelz, No. 98-287 (January 26, 2001)
The
defendant was found guilty of failure to pay child support pursuant to
G.L 1956 § 11-2-1.1. The
Court affirmed the judgment, concluding there was sufficient evidence
to establish that probable cause existed to charge defendant under §
11-2-1.1, without including interest in meeting the statutory
threshold. The Court also
held that the application of § 11-2-1.1, as applied to defendant, did
not render it an invalid ex post facto law. The Court also rejected
defendant’s argument that the family court abused its discretion in
limiting cross-examination.
In
the Matter of Vincent A. Indeglia, No. 2000-509 (January 26, 2001)
The respondent was
brought before the Disciplinary Board for violations of the Court
Rules of Professional Conduct. At
the hearing, respondent admitted to violating R.I. Sup. Ct. art. V, R.
1.2(a), 1.4(a), 1.15(a)(b), 8.4(c). After respondent offered
mitigation testimony, the board recommended the appropriate
disciplinary sanction to impose was a 90-day suspension from the
practice of law. The Court
adopted the recommendation of the board, and suspended respondent from
the practice of law for 90 days even after a determination that
respondent admitted to his wrong, repaid his client, and fully
cooperated with the Board.
State
v. Daniel M. Ilacqua, No. 99-433 (January 24, 2001)
The
defendant pled nolo contendere to two charges of receiving stolen
goods and conspiracy. defendant
received a five-year suspended sentence, with probation. Two years
later, defendant was charged with possession with intent to deliver a
controlled substance. He was held without bail on both the new charge
and as an alleged probation violator. The defendant received a 170 day
credit for the time he had been held without bail pending a hearing on
the violation of his probationary sentence; however, the 170-day
credit was not applied to the six-month consecutive sentence he
received on the crimes charged in the second information. The Court
denied and dismissed defendant's appeal and affirmed the judgment of
the Superior Court. The
Court rejected defendant’s argument on appeal that he was entitled
to 340 days credit for time served and held that defendant could not
apply his 170 day credit to each charge pending against him.
Charles
T. Francis V. Buttonwoods Realty Co., No. 99-92 & No. 99-95
(January 24, 2001)
The
petitioners contracted to purchase two parcels held for sale by
respondent, who was the receiver for an insolvent realtor.
Large tax liabilities accrued to the town during hazardous
waste clean-up of the properties.
The petitioners sought to obtain a tax abatement. Subsequently,
the contracts received court approval, and the tax abatement was
denied. The petitioners, thereafter, announced that they waived their
insistence on a tax abatement and sought to enforce their contracts.
The Court held that despite respondent's fiduciary duties as a
receiver, he was also bound by court-approved contracts. Since some
benefit would flow to petitioners from the possible condition
precedent requiring tax abatement, petitioners were entitled to waive
it, and the trial justice erred in denying them the benefit of their
bargain.
R
& R Association et al v. City of Providence Water Supply Board, et
al v. State of Rhode Island, No. 99-153 (January 23, 2001)
The
plaintiffs were class representatives of the present-day successors in
interest to certain persons who, in 1922, held land and water rights
that were appurtenant to nine separate mill sites that abutted the
north branch of the PawtuxetRiver. In 1922, a contract was formed whereby
defendant city would compensate the mills for taking their riparian
rights. The Court held that 1915 R.I. Pub. Laws ch. 1278, § 6
authorized defendant city to acquire absolutely by condemnation the
waters of the river and its tributaries, or any part or parts thereof.
It was also determined that the statute authorized defendant
city to sell water to communities not mentioned in the original 1915
act. The Court held the 1922 contract limited any remaining water
rights principally to the requirement that defendant maintain a
specific minimum flow of water on the Pawtuxet River. The defendants retained a statutory obligation
to determine whether any such surplus would be discharged into the
north branch of the Pawtuxet River.
Progressive
Casualty Insurance Company v. Narragansett Auto Sales, No. 99-271
(January 19, 2001)
The
victim of a motor vehicle accident filed suit alleging bodily injury
and property damage. plaintiff filed an action seeking a declaratory
judgment that plaintiff had no duty to indemnify the defendant. The
trial justice granted plaintiff's summary judgment motion, after
finding that the policy in question did not provide coverage because
the tortfeasor lacked consent to utilize plaintiff's dealer license
plates. On appeal, defendant argued that plaintiff was required to
defend the suit based on the “pleadings test.” The Court vacated
the summary judgment order and held that plaintiff was required to
defend irrespective of the defendant's ultimate liability to the
victim because defendant satisfied the “pleadings test” by
reciting facts which brought the injury within the coverage of the
policy.
Joanne
S. Ohms v. State of Rhode Island Department of Transporation et al,
No. 99-187 (January 19, 2001)
The
defendant leased a motorized moped to plaintiff.
The plaintiff was involved in an accident and suffered personal
injuries. The plaintiff
filed a negligence action based on a failure to warn of known
hazardous road conditions. The trial justice held that defendant did
not have a duty to warn lessees of its vehicles about dangerous
conditions that existed on public roads. Accordingly, the trial
justice granted defendant’s summary judgment motion. The Court
affirmed and held that the warning given to plaintiff in the lease
agreement was adequate to apprise plaintiff of the roadway dangers
that she might encounter. As
such, defendant lessor did not owe any duty to lessee.
Arthur
J. DeBlois, Jr., et al v. R. Gary Clark in his capacity as Tax
Administrator, No. 98-336 (January 19, 2001)
The
petitioners owned a small condominium in Rhode Island but spent the majority of their time at a
separate residence in Florida. The respondent, Rhode Island Tax Administrator,
assessed income tax deficiencies assessed The petitioners after they
filed nonresident returns. The Court held that pursuant to G.L.
1956 § 8-8-28, petitioners sustained their burden of proof
in proving by a preponderance of the evidence that they changed their
domicile. The Court also
held that strict requirements for the content of tax deficiency
notices are required pursuant to G.L. 1956
§ 44-30-81, as well as Rhode Island case law.
The Court found that the notices received by petitioners were
ambiguous and potentially misleading.
In
Re Bryce T., No. 00-95 (January 12, 2001)
The
petitioner sought to terminate respondent's parental rights based on
respondent's chronic substance abuse. The respondent discharged her
appointed counsel on the day of trial.
The trial justice advised against such action and clearly
explained to respondent that she would be proceeding pro se. The
petition to terminate respondent's parental rights was granted and
respondent appealed claiming that it was error for the trial justice
to not appoint substitute counsel.
The Court affirmed and held that the trial justice was under no
duty to appoint substitute counsel.
The Court found that the trial justice clearly explained the
ramifications of discharging counsel.
The Court also found no evidence that the appointed counsel was
ineffectively representing respondent.
Pezzucco
Construction v. Melrose Associates, L.P., No. 99-346 (January 12,
2001)
The
plaintiff entered into a subcontract to perform exterior
rehabilitation work on 10 different properties. The plaintiff stopped
working on the project and terminated the contract after failing to
receive payment for work performed. The plaintiff then recorded
notices of intention to file mechanic’s liens.
Exactly 120 days after said recordation, plaintiff filed a
motion to enforce the liens and mailed 10 notices of lis pendens to
the recorder of deeds. Said notices were recorded in the land evidence
records three days later. The trial justice thereafter entered for
plaintiff, and enforced the liens. Subsequently, judgment was vacated.
The Court held that plaintiff’s liens were void because the notices
of intention were not sent by certified mail, and the notices of lis
pendens were recorded in the land evidence records three days after
the 120-day statutory limit.
Michael
A. Brennan v. George A. Vose, Jr., et al, No. 98-300 (January 12,
2001)
Appellant
sought post-conviction relief after being sentenced to life in prison
for felony murder. Appellant’s pray for relief was denied and he
appealed. The Court
affirmed and found that the trial justice had sufficient evidence to
find that appellant was fully aware of his right to testify on his own
behalf. The Court also
found that trial counsel for Appellant was adequately prepared and
Appellant’s decision not to testify was voluntary and made without
any improper influence. Further, there was no support for the
proposition that newly discovered evidence was undiscovered at trial.
Women's
Development Corporation, et al, v. City of Central Falls, No. 98-207;
99-87; 99-293 (January 11, 2001)
The
plaintiffs filed suit against defendant for breach of contract and
defendant counterclaimed alleging breach of contract and fraud. The
trial justice dismissed plaintiffs' breach of contract claim, assessed
attorney's fees against plaintiffs and also dismissed defendant’s
fraud claim. The Court
reversed the dismissal of plaintiffs’ breach of contract claim after
finding evidence of substantial performance. As such, the Court
vacated the trial justice’s award of attorney’s fees.
The Court also held that the trial justice erred in granting
judgment for plaintiffs on defendant’s fraud claim because factual
questions were unresolved. The
trial justice's refusal to grant plaintiffs' Super. Ct. R. Civ. P.
9(b) motion was not reversible error in light of evidence adduced at
trial.
State
v. Alfred J. Veltri, No. 99-453 (January 11, 2001)
The
defendant was arrested, charged, and instructed of his right to call
an attorney via a pay telephone. The
defendant declined to make a phone call.
The defendant was subsequently convicted of the charges. The
trial justice vacated the verdict and dismissed the charges after
finding that defendant did not receive his free telephone call. The
Court granted certiorari, vacated the dismissal, and reinstated
defendant’s conviction finding that the defendant waived any right
to challenge the failure to provide him with access to a free
telephone call by failing to do so before or during his trial. The
Court also found that defendant was not substantially prejudiced.
State
v. Lewis E. Elliott, No. 99-164 (January 10, 2001)
The defendant
appealed his sexual assault conviction arguing that the admission of
certain uncharged sexual misconduct evidence was improper hearsay.
The Court affirmed finding that the trial justice was correct
in ruling that the defense had "opened the door" during
cross-examination. The Court also held that the state was properly
allowed to conduct a redirect examination of defendant's wife
concerning her knowledge of the prior investigation because no hearsay
objection was raised by defendant.
Also, the trial justice properly gave a limiting instruction
prior to closing arguments that the testimony could be used to show a
pattern, design, scheme, plan, an intent, or a mode of operation of
defendant.
State
v. Glenn A. Reed, No. 99-418 (January 9, 2001)
The
trial justice granted defendant’s motion to dismiss after finding a
lack of probable cause with regard to the charge of intent to deliver
a controlled substance. The
Court reversed and held that, pursuant to G.L.
1956 § 12-12-1.9, the trial justice is required to examine
the information and exhibits when making a probable cause
determination under Super. Ct. R. Crim. P. 9.1. The Court held that
the trial justice failed to consider the evidence in the information
package, relating to confidential informants, which supported the
inference of defendant's intent to sell cocaine.
Ronald
Gossett et al v. Susan Reid, No. 99-233 (January 9, 2001)
The
plaintiff husband was injured when a stone fell from a wall on the
premises which he and his wife rented from defendant.
The trial justice granted plaintiffs eight separate
continuances. The
plaintiff husband also failed to comply with a court order requiring
him to submit to a videotaped deposition.
The defendant moved to dismiss for failure to comply with said
court order. The trial
justice granted defendant’s motion to dismiss.
The Court affirmed finding that, in light of the equities
involved, the trial justice properly dismissed the case since it had
been pending for more than five years.
Ronald
Harvey et al v. Town of Tiverton et al, No. 99-63 (January 9, 2001)
The
plaintiffs were successful in their attempt to secure building permits
and a liquor license needed to operate a banquet facility.
Nonetheless, plaintiffs filed suit alleging that defendants had
colluded to block plaintiffs from acquiring the necessary permits. The
trial justice dismissed the complaint and the Court affirmed.
The Court found that the defendants were prejudiced by
difficulty of locating certain other defendants due to the length of
inactivity which exceeded the statutory five-year period.
William
D. Ankner et al v. Stephen Napolitano et al, No. 00-148 (January 8,
2001)
Appellant,
the State, and Appellee were all parties to condemnation litigation.
Appellant conveyed to Appellee a parcel of land.
As consideration, Appellee agreed to credit Appellant as having
paid its 50 percent share of a previous condemnation award. Appellant
was also obligated to pay, on behalf of the City of Providence, the
other 50 percent share. The trial justice determined that the credit
agreement between Appellee and Appellant did not pertain to the
judgment interest which had accrued by the final award.
The trial justice also refused to correct an error in the
interest rate calculations. On appeal, the Court held that Appellee
had long benefited from the property transfer and therefore, under
equitable principles, had been fully compensated for Appellant's share
of the final award, principal and interest. The Court also held that
the trial justice erred in not correcting an error in interest rate
calculations through the use of a variable treasury-bill interest rate
prescribed by statute.
Thomas
S. Michalopoulos v. C & D Restaurant, Inc., d/b/a "Eddie and
Conrad's Fine Foods", No. 99-222 (January 8, 2001)
The
plaintiff was injured when the stairs at defendant's premises went out
from under him. The plaintiff sued. The jury found plaintiff 80
percent negligent. The trial justice then granted plaintiff's motions
for a new trial and for additur, and reapportioned the comparative
negligence of the parties to find plaintiff 40 percent negligent. The
trial justice did not err in allowing expert opinion that the stairs
were moveable and others had used them in the same manner as
plaintiff. The trial justice did not err in denying defendant's motion
for judgment as a matter of law because of the questions raised by the
expert testimony. Although the Court approved the use of an additur to
correct the jury's misapportionment of liability, the trial justice
erred in not allowing defendant an opportunity to assent to it.
Robert
Testa v. Norfolk and Dedham Mutual Fire Insurance Company, No. 99-243
(January 8, 2001)
The
plaintiff obtained car insurance from an insurer. His policy was later
transferred to defendant insurer. The plaintiff's car was stolen. The
defendant insurer denied plaintiff’s insurance claim based on
alleged misrepresentations in the insurance application. Specifically,
plaintiff’s care was garaged in a state other than that listed in
the insurance policy. The trial justice awarded damages to plaintiff.
On appeal, the Court held that plaintiff was never asked where
the car was to be garaged when the policy was transferred and as such
no misrepresentation was ever made. The Court also noted that the
original insurance application was silent as to this issue.
State
v. Marc Gomes, No. 00-42 (January 8, 2001)
The defendant was
convicted of first degree murder and carrying a pistol without a
license. At trial, the
arresting officer was permitted to testify as to the description of
defendant that was broadcast over the police radio based upon an
eyewitness account. The
Court affirmed. The Court
found that the officer’s testimony was not objectionable hearsay
because it was not offered to prove defendant's guilt.
The Court held that the officer had probable cause to detain,
arrest, and search defendant for weapons and therefore the officer's
testimony about the description at trial was necessary to show why he
apprehended defendant. The Court also held defendant did not properly
preserve his objection as to testimony given by his former
cellmate.
In
re Maya C. et al, No. 99-26 (January 8, 2001)
The
respondent appealed from a termination of parental rights.
The Court denied the appeal and affirmed the lower court’s
termination. The Court
found that the record revealed respondent had a ten to fifteen year
history of chronic substance abuse.
The trial justice did not overlook any relevant or material
evidence, and properly admitted testimony from respondent’s mother
regarding the substance abuse. The
Court found that the decision of the trial justice was supported by
clear and convincing evidence, in light of respondent's substance
abuse history, living environment, and repeated relapses.
Rhode
Island Depositors Economic Protection Corporation v. Bowen Court
Associates et al, No. 99-532 (January 5, 2000)
The defendant and a
credit union signed a note to finance defendant's real estate project.
The credit union closed and was placed into receivership. The
defendant ceased making payments on the note, claiming damages for
credit union's failure to provide more financing that had been
previously agreed upon. The plaintiff corporation,
legislatively created to protect the depositors of various failed
financial institutions, acquired credit union's assets and the note
from the receiver. Pursuant to G.L. (1956) § 42-116-6(b), plaintiff
was only liable for such obligations of those institutions as it
agreed to accept. Since plaintiff had not agreed to be liable for
defendant’s claim against the credit union, defendant could not
assert its recoupment defense because recoupment was not a “real
defense.
Jose
A. Cabral et al v. George DuPont, No. 99-207 (January 5, 2001)
The
plaintiffs agreed to buy a home from defendant. The plaintiffs agreed
to deposit $ 16,000 of the purchase price in a separate joint interest
bearing checking account. The defendant was to get the money if
plaintiffs received permits to enlarge the home to three bedrooms. The
defendant got a check for $ 16,000 after closing the sale. The Court
affirmed trial justice’s findings that defendant forged plaintiff's
endorsement, deposited the check into defendant's bank account, and
breached the agreement. Based on G.L.
1956 9-21-10(a) (1956), the Court reversed the pre-judgment
interest award to allow plaintiffs only the interest accrued while the
money was in the interest bearing account.
State
v. John R. Rieger, No. 98-322 (January 5, 2001)
The defendant was
convicted of assault with a dangerous weapon. The Court held that
trial justice properly denied motions for new trial and the
alternative motion for judgment of acquittal in light of other
evidence that inculpated defendant. In the justice's eyes a reasonable
juror would have been justified in finding defendant guilty beyond a
reasonable doubt. The Court also determined that the admissions of
testimony by police expressing an opinion on defendant’s
truthfulness and testimony by the state medical examiner concerning
ballistics were not properly preserved for appeal since defense
counsel’s objection to one of the three questions on the issue was
merely a general one.
Cadillac
Lounge, LLC v. City of Providence, No. 99-407 (January 4, 2001)
The petitioner
applied for and was granted an alcohol beverage license and an adult
entertainment license by respondent, the Providence Board of Licenses.
The proposed adult entertainment would be located in a M-1 zoning
district where adult entertainment is a permitted use. Local residents
appealed, and the licenses were revoked. The issue was remanded for a
new hearing before the board where the petitions were denied. The
Court quashed the board’s decision and determined that even though
cities have power to deny or revoke licenses, that power is limited to
licenses for activities or locations that present danger to the public
health or safety. Since the board’s decision rested on other
reasons, it was arbitrary and capricious and exceeded the board’s
jurisdiction.
State
v. Steven R. Salvatore, No. 98-175 (January 4, 2001)
The
defendant was charged with filing a false document after failing to
disclose all required information to bank regulators upon entering
into a joint banking venture. The defendant promised a loan for
equipment leases as long as he received a one percent fee. The
defendant was charged with bribery after keeping the money for
himself. The trial justice properly denied defendant's motion for
judgment of acquittal because defendant was properly convicted of
solicitation or acceptance of a bribe. Additionally, defendant was
properly convicted of fraud because defendant knew that statement was
false and intended to mislead the accounting firm and the bank's
regulators.
State
v. John R. Pacheco, Jr., No. 2000-6 (January 3, 2001)
The defendant was
convicted of one count of first-degree murder and one count of
conspiracy to commit murder. The defendant was sentenced to life
imprisonment plus 10 years for the two crimes. The Court affirmed the
sentence. It was harmless error to admit the prosecution witness's
testimony about statements made by defendant's coconspirator. It was
not an abuse of discretion to deny defendant's motion to pass the case
and declare a mistrial. The defendant's challenge as to the
sufficiency of the jury instructions on statements made in furtherance
of a conspiracy was not preserved for appeal. The state was not
barred, by the doctrine of collateral estoppel, from seeking a life
sentence without parole.
In
re Alicia S., No. 99-71 (December 26, 2000)
The
petitioner DCYF obtained custody of respondent's child. At the hearing
on termination of respondent's parental rights, she consented to her
child being adopted. No reference was made at the hearing to an
alleged oral visitation agreement between the adopting parents and
respondent. The trial justice denied respondent's motion to enforce
the visitation agreement, holding that her parental rights, including
visitation, terminated when the adoption was granted. The Court
affirmed and held that G.L. 1956 § 15-7-14,
which grants certain visitation rights to biological parents, was
irrelevant, because the statute was enacted after the adoption and was
not applied retroactively. Because the law in effect at the time of
the adoption denied visitation rights to birth parents of adopted
children, the trial justice's order was correct.
In
re Russell S., No. 98-367 (December 26, 2000)
Appeal
from the trial justice’s decree terminating the petitioner’s
parental rights to her son because of her longstanding drug addictions
and history of mental disorders. The
Court initially held that the state was required to prove by clear and
convincing evidence that a parent is unfit before permanently severing
parental rights in her natural children.
The Court noted that once a parent had been adjudicated unfit,
the balance shifted so that the best interests of the child outweighed
all other considerations. The Court then reviewed petitioner's history
of drug abuse, mental illness, and her unsuccessful attempts at
rehabilitation and reunification with her son. The court affirmed the
trial justice’s decree, finding that the state had presented clear
and convincing evidence that the petitioner was unfit.
Hedco,
Ltd v. Gwendolyn Blanchette, No. 98-510 (December 26, 2000)
Appeal
from trial justice’s order dismissing the plaintiff’s trespass and
ejectment action. The
Court found that even though the plaintiff Landlord's termination of
its lease with defendant Tenant substantially complied with G.L. 1956
§ 34-18-56, a landlord seeking to evict a tenant occupying United
States Department of Housing and Urban Development subsidized property
must send a termination notice that complies with 24 C.F.R. §
247.4(a)(1), which requires that the notice to terminate tenancy state
a specific date of termination. The
Court found that although the termination notice complied with G.L.
1956 § 34-18-35 and used most of the precise language suggested in
G.L. 1956 § 34-18-56, it did not meet the higher standard required
for federally subsidized housing because the exact date for
termination was not explicitly stated.
Gooding
Realtly Corporation v. Bristol Bay CVS, Inc., No. 99-514 (December 26,
2000)
The
defendant’s petition for certiorari granted from the Superior
Court’s dismissal of an appeal from a District Court judgment in a
trespass and ejectment case. The
defendant vacated the commercial property it leased from the plaintiff
prior to the expiration of the lease but continued to pay rent and
maintain the property until the lease actually expired.
The plaintiff thereafter alleged that the defendant was a
holdover tenant because it had retained the keys to the premises. The
trial justice found that plaintiff was entitled to possession and that
the defendant was liable for holdover rent.
The Superior Court summarily dismissed the defendant’s appeal
because of its failure to comply with the bond requirements of G.L.
1956 § 34-18.1-18 for payment of future rent.
The Court held that G.L. 1956 § 34-18.1-18 was inapplicable
because possession of the property was not an issue.
The court remanded the case to the Superior Court with
directions to grant a trial on the merits.
State
v. David Bettencourt, No.99-445 (December 22, 2000)
The
defendant first appealed his conviction for second degree sexual
assault, arguing that the trial justice should have granted his motion
for a new trial in light of his statement that he did not believe the
testimony of a police officer who had testified that the defendant had
knowingly, intelligently, and voluntarily waived his constitutional
rights before confessing to the crime.
The court had remanded the case for a determination of whether
the confession was properly admitted into evidence, and, if not,
whether this error was harmless beyond a reasonable doubt.
On remand the trial justice found the confession had not
properly been admitted but that its admission was harmless error.
The court reversed and remanded to the Superior Court for a new
trial, finding that the admission of the defendant's statement may
have bolstered the credibility of the testimony of the victim and her
mother to the extent that it contributed to his conviction.
Patricia
L. Poudrier v. Brown University, No. 99-285 (December 20, 2000)
Writ
of certiorari granted from a decision of the Appellate Division of the
Workers’ Compensation Court affirming the trial justice’s denial
of the plaintiff’s petition for workers' compensation benefits from
the defendant employer. The
trial justice had denied her motion for an independent medical
examiner to be appointed under G.L. 1956 § 28-34-5.
Her petition for benefits was then denied. The Court quashed
the order affirming the denial of benefits and remanded the case to
the Workers’ Compensation Court because the statute did not allow
the trial justice any discretion with respect to whether an impartial
medical examiner would be appointed in cases in which the alleged
disability was the result of an occupational disease or condition.
State
v. Lisa A. DiStefano, No. 99-119 (December 20, 2000)
On
certification from the Superior Court, the Court determined that G.L.
1956 § 31-27-2(c) precludes, for violations of G.L. 1956 § 31-27-2.2
(driving under the influence, death resulting), admission of results
of breathalyzer, blood, or urine tests at trial when the samples are
seized without the defendant's consent.
The court held that the statutory language “none shall be
given” is plain and unambiguous and becomes operative after the
suspect refuses a chemical test. Furthermore,
upon such a refusal, a test should not be given with or without a
warrant to “any person who operated a motor vehicle within this
state,” pursuant to G.L. 1956 § 31-27-2.1(a).
The Court recognized that the legislature delineated the scope
of the District Court’s and Superior Court’s warrant authority and
those courts have no inherent power to issue a search warrant but,
rather, can only exercise those powers that are conferred by statute.
Casa DiMario, Inc. v. Kenneth Richardson et al; Case
DiMario, Inc. v. Leo
Fox et al, Nos. 99-84, 99-162 (December 18, 2000)
Consolidated
appeals concerning the legality of a municipal ban on nude barroom
dancing. The Court held
that the trial justice properly vacated the consent order between the
plaintiff and the defendant’s town solicitor because the solicitor
did not have actual or apparent authority to compromise the pending
claims involving the plaintiff's establishment on the terms set forth
in the order. The Court
found that the town officials’ assurances to the plaintiff that its
establishments would have been “grandfathered” against the
town’s anti-nudity ordinances was insufficient as a matter of law to
estopp the defendant from vacating the settlement or enforcing the
anti-nudity ordinances against the plaintiff.
The Court held that the 1997 amendment to G.L. § 3-7-7.3 did
not limit defendant’s power in this respect.
Therefore, the defendant did have authority to impose
anti-nudity ordinances, as they were valid codifications of its
preexisting power to do so. Furthermore,
the ordinances were not overbroad and thus not a free speech
violation.
State
v. Stephen M. Mulcahey, No. 99-204 (December 18, 2000)
The
defendant’s appeal from a conviction of third degree sexual assault
for engaging in sexual intercourse with his fifteen-year-old
girlfriend one month before her sixteenth birthday.
The Court held that the trial justice did not err in denying
the defendant’s motion in limine to exclude the State’s evidence
that the defendant’s girlfriend had engaged in an uncharged act of
oral sex with him a few months before the charged misconduct occurred
and that the defendant had told one of his friends about it.
The court found that it is within the trial justice’s
discretion to rule on the admission of evidence of uncharged sexual
misconduct. Furthermore,
under the “lewd disposition” rule, an uncharged sexual act was
probative of the defendant’s lack of regard for his girlfriend’s
underage status.
Metro
Properties, Inc. v. Edward Yatsko et al, No. 99-353 (December 18,
2000)
The
plaintiff’s appeal from a summary judgment in favor of the
defendants and an award of attorney fees.
The Court affirmed in part because, under G.L. 1956 § 9-1-4(6), an agreement to receive a real estate
commission has to be in writing. In
any event, it did not appear that the plaintiff was a procuring cause
for the tenant’s purchase of the property.
The Court reversed the award of attorney fees because before
trial an arbitration panel had merely found that the plaintiff's
complaint was nonarbitrable.
Belliveau
Building Corporation v. William J. O'Coin, et al, No. 98-445 (December
18, 2000)
The
defendants’ appeal from a nonjury trial judgment that they
tortiously interfered with the plaintiff’s contract to sell real
estate. The plaintiff also cross-appeals, challenging the trial
justice’s refusal to award punitive damages and its preclusion on
res judicata grounds of its attack on the propriety of the
defendants’ filing of a first notice in the land evidence records
concerning their right of first refusal.
The Court sustained the defendants’ appeal and denied the
plaintiff’s cross-appeal. A
restriction on one of the subject lots gave the defendants a
preemptive right of first refusal in the event the plaintiff couple
later sought to sell or lease lot three.
The couple, who served as the sole officers and shareholders of
plaintiff corporation, conveyed that lot to the plaintiff without
giving the defendants any opportunity to exercise their right of first
refusal. The court found
that the defendants’ conduct constituted justified interference with
the plaintiff-third party contract given their right of first refusal
and their objectively colorable belief that first conveyance of the
lot between the couple and plaintiff had triggered the right of first
refusal.
Margaret
P. Hiltonv . Vincent Fraioli, d/b/a Edgewood Associates, No. 99-132
(December 14, 2000)
The
defendant’s motion for a new trial. The
defendant employed the plaintiff in his real estate agency under a
one-year contract. The
plaintiff sued after the defendant stopped paying his salary.
The trial justice entered judgment for plaintiff, having found
that the defendant breached the contract. The court affirmed, holding
that the trial justice did not err in finding that the contract was
unambiguous and clearly provided for a one-year guarantee of
employment based upon its language stating the agreement was for one
year from the time of signatures. The Court found that the trial
justice properly denied the defendant’s motion because even though
the agency encountered start-up difficulties that was insufficient
evidence to show that the plaintiff was incompetent.
Town
of North Providence v. Local 2334 International Association of Fire
Fighters, AFL-CIO, No. 99-52 (December 15, 2000)
The defendant city’s motion to vacate an arbitrator’s
award. plaintiff
firefighter's union filed grievance against the defendant based on the
city’s failure to include holiday pay when calculating longevity
compensation. The
defendant asserted that it had never included holiday pay in that
calculation, and thus had not violated the agreement.
The arbitrator found that the parties, by past practice, had
misinterpreted the collective bargaining agreement and that gross pay
as set forth therein should include holiday pay in so far as longevity
was concerned. The trial
justice denied the motion to vacate.
On appeal, the court affirmed the order, reasoning that the
award was passably plausible because it was consistent with the
agreement, which provided that longevity compensation for firefighters
with eight or more years of service would be calculated based on gross
pay.
Global
Waste Recycling, Inc. v. Henry Mallette, Jr., et al, No. 98-597
(December 14, 2000)
The
plaintiff initiated a civil action for defamation against the
defendant neighbors, claiming that its construction and demolition
recycling business and reputation had been destroyed by the
publication of defendant statements in the newspaper that the
plaintiff was burning lead and asbestos on the property. The Court
found that the plaintiff’s suit was barred pursuant to the express
immunity provisions of G.L. 1956 § 9-33-2(a) because the
defendants’ statements were neither objectively sham, nor actionable
in light of the immunity protection afforded those statements by
virtue of the Limits on Strategic Litigation Against Public
Participation, G.L. 1956 § 9-33-2 (Anti-SLAPP statute).
Rhode
Island Insurers' Insolvency Fund v. Leviton Manufacturing Company, Inc., No. 99-410 (December 13, 2000)
The
plaintiff’s motion for summary judgment.
The defendant delayed discovery for years, at one point seeking
to rescind all its admissions, and its sole response to plaintiff’s
summary judgment motion was an employee’s affidavit stating his
opinion that the plaintiff was too liberal in paying claims.
The Court found this affidavit, offered as lay opinion
testimony, was inadequate to rebut the plaintiff’s motion, and that
the defendant’s discovery misconduct justified the trial justice in
exercising its discretion to award attorneys’ fees. However, the
Court determined that prejudgment interest could only have been
awarded in actions for damages, while the case was a statutory action
for reimbursement.
In
the Matter of John A. Scungio, No. 2000-414 (December 12, 2000)
A
criminal information was filed in a federal district court charging
the respondent attorney with making materially false statements and
representations to special agents of the FBI.
The respondent entered a guilty plea to the federal charges.
The disciplinary council filed a petition to revoke or suspend
the respondent’s license to practice law.
The court found that lying to federal agents violated R.I. Sup.
Ct. art. V, R. 8(b) and that delivering a bribe to a
public official on behalf of his clients violated R.I. Sup. Ct. art. V, R. 8.4(d).
The Court determined that the respondent’s misconduct
demanded the imposition of the harshest sanction available.
Anita
B. Logan v. Jeffrey S. Logan, No. 99-134 (December 12, 2000)
Appellant
husband’s motion to modify child custody was denied by the trial
justice. The court denied
and dismissed the appeal and affirmed the trial justice’s judgment
because before a final custody decree could be amended, the movant has
to establish that the conditions or circumstances existing at the time
of the decree had so changed that the decree should be modified in the
interest of the child’s welfare.
The court found that the Appellant failed to prove a sufficient
change in circumstances, because neither the child’s increase in age
nor appellee’s living with her then-fiancé were sufficient to
require modification of the earlier custody award.
State
v. Russell S. Allessio, No. 98-532 (December 11, 2000)
The
defendant’s appeal from a conviction, claiming that the jury’s
verdict of not guilty on two counts of first-degree child molestation
was inconsistent with its return of a guilty verdict on the charge of
second-degree child molestation. The Court found that the victim’s
testimony plainly supported the jury’s verdict and that the
defendant was not prejudiced by the 11th-hour disclosure of relatively
inconsequential charges. The trial justice did not abuse his
discretion in permitting the state to supplement its discovery in this
manner before the defendant presented his case.
In
re Nathan F. et al, No. 99-302 (December 11, 2000)
The
respondents’ appeal from a family court decree terminating their
parental rights. The court
affirmed the judgment, holding that the family court’s findings,
which were based upon the testimony of the respondent mother and
social workers employed by the petitioner, reports from rehabilitation
centers, and evidence of domestic violence by respondent father,
supported the trial justice’s conclusion that both respondents were
unfit by reason of conduct or conditions seriously detrimental to
their children.
In
re Delicia B. et al, No. 99-470 (December 11, 2000)
(corrected)
The
respondent appealed the termination of her parental rights, arguing
that the trial justice erred in finding her to be an unfit parent and
that her children had not been formally committed to the DCYF for the
full 12-month period before termination petitions were filed.
The Court affirmed, finding that G.L. 1956 § 15-7-7(a)(3) only required that a child have been
placed in the legal custody or care of DCYF for at least 12 months.
Under the respondent’s supervision, the children missed or
postponed vital medical appointments, they were hungry, unclothed,
dirty, and lacked adequate housing and other basic necessities.
Ferandinho
P. Gomes v. Mossberg Industries, Inc., No. 98-580 (December 11, 2000)
The
plaintiff’s appeal from the trial justice’s granting of the
defendant’s motion for judgment as a matter of law on a product’s
liability suit. At trial,
plaintiff presented a number of witnesses seeking to establish the
defendant's liability, but all of them were unable to conclude that
the defendant manufactured the machinery in question.
Then, the plaintiff attempted to qualify an expert witness in
civil engineering. The
trial justice refused to qualify the expert witness because he
admitted he was unfamiliar with the manufacture and design of
industrial machinery and had done nothing to prepare for trial.
The Court affirmed, holding that the plaintiff had sued the
wrong party and no facts could establish the defendant’s liability.
In
re Robert S. et al, No. 99-18 (December 11, 2000)
The
petitioner DCYF removed two children of the respondent father from the
home of their mother and placed them with their maternal grandmother.
The petitioner subsequently placed the children with the
respondent’s mother. The petitioner requested the Court to declare
the children neglected, and then amended the petition to have the
children declared “dependent” under G.L. 1956 § 14-1-3(6). The
family court declared them dependent.
The Court affirmed because even though lack of housing and need
for parental aid services were not explicitly articulated in §
14-1-3(6), they were encompassed under the term “dependent,” and
also the family court’s findings were supported by substantial
evidence.
Bechtel
Corporation v. Leonard Ponte, No. 99-188 (December 4, 2000)
Employer’s
petition for certiorari seeking review of a final decree of the
Appellate Division of the Workers’ Compensation Court, which
reversed a trial justice’s grant of a request to set an earnings
capacity. The Court
affirmed the decree of the Appellate Division and denied the
employer’s petition for certiorari, finding that the court correctly
concluded that the respondent's seven percent impairment did not
reasonably establish his earnings capacity.
The Court further held that although G.L. 1956 § 28-29-2(3)(i)
permitted the trial justice, in his or her discretion, to consider an
employee’s efforts in seeking employment when deciding whether to
implement the reduction, the section was not intended to be punitive.
The failure to actively seek employment did not warrant the
drastic reduction in respondent's benefits.
Finally, the Court determined that requiring some reasonable
correlation between respondent employee’s functional impairment and
his ability to earn when establishing an earnings capacity was not
error.
State
v. Robert M. Chiellini, No. 98-409 (December 4, 2000)
The
defendant challenged the trial justice’s denial of his pro se motion
for a mistrial. The Court
affirmed in part, reversed in part, and remanded.
The Court held that the trial justice did not err in denying
the defendant’s motion for a mistrial, finding that the trial
justice conducted an adequate investigation into one juror’s actions
calling an attorney for an explanation of the difference between
first- and second-degree murder and neither the prosecution nor the
defense desired a new trial. The
Court found that the trial justice did err, however, when it refused
to apply the habitual criminal statute, G.L. 1956 § 12-19-21, and impose an additional sentence on defendant
after finding him to be a habitual offender.
Giulia Simeone, in her capacity as Administratrix of the Estate of Maria G.
Simeone et al, No. 99-173 (December 1, 2000)
The
Court granted the petitioner’s writ of certiorari from the trial
justice’s judgment that punitive damages are not recoverable and
denial of her motion to compel responsive answers.
The Court held that the state legislature intended to preclude
the recovery of punitive damages in a wrongful death action, as
evidenced by examining the history of the act and the amendments
thereto, the case law relating to damages recoverable under the act,
and a comparison of the act with wrongful death statutes in other
states. Thus, the Court
held that the trial justice abused its discretion in determining that
the interrogatories were not relevant.
Astrida
Heal v. Stephen Heal, No. 98-577 (December 1, 2000)
Appeal
from a family court decision imposing a monetary sanction on the
defendant’s attorney based on a finding by the trial justice that
counsel filed and litigated a frivolous counterclaim in which the
defendant sought custody and physical possession of his minor
children. The record in
the case demonstrated that a custody claim was made on the eve of
trial, after settlement negotiations with respect to the marital
property had collapsed. Thus, the court held the trial justice did not
err in finding the claim to be completely lacking in merit. The
attorney was sanctioned for filing a frivolous motion, an 11th hour
counterclaim for sole custody of the minor children.
Montee
Debar et al v. Women and Infants Hospital et al, No. 99-91 (November
29, 2000)
Appeal
following entry of judgment as a matter of law in favor of the
defendants in a Superior Court medical malpractice and wrongful death
action. At trial, the
plaintiffs sought to introduce testimony of a distinguished neonatal
pediatrician on the issue of causation of death. The court held that
it was error to exclude this testimony on grounds that he was not an
obstetrician, finding that so long as a medical expert on causation
was knowledgeable, he did not have to practice in exactly the same
specialty as a defendant. The
court also noted, for trial justice guidance, that when the plaintiffs
suddenly learned that they could not have used an expert they had
reasonably counted on, they should have been granted a continuance or
non-suit.
In
re Application of Roger I. Roots, No. 00-276 (November 20, 2000)
The petitioner applied to the court seeking admission to
the state bar. The
Committee on Character and Fitness conducted hearings and four members
voted to admit the petitioner and two members voted to reject his
application. The court concluded that the expiration of the
petitioner’s probationary status on the federal-weapons conviction
had expired only four years prior to petitioner enrolling in law
school and that the petitioner had continued to engage in activities
that cast doubt on his candor, truthfulness, and ability to take the
attorney’s oath in good faith. The
court also concluded that the petitioner had a record of dishonesty
which, combined with his other criminal misconduct and recent
fabrication on his bar application, showed a lack of candor and
justified not admitting him to practice law.
In
the Matter of Arthur A. Coia, No. 2000-224 (November 20, 2000)
Petition
to revoke or suspend the respondent’s license to practice law.
The respondent pled guilty to a criminal information, filed in
the United States District Court for the District of Massachusetts,
charging him with felony mail fraud, in violation of 18 U.S.C.S. §
1341. Upon receipt of the
certified copy of the respondent’s judgment of conviction and the
petition filed by disciplinary counsel, the court issued an order to
respondent to show cause why the petition to revoke or suspend his
license to practice law should not be granted. The court, having
reviewed the briefs of the parties and having heard the arguments of
counsel and a statement from the respondent, ordered the suspension of
respondent from the practice of law for two years.
Carol
A. Cummings v. William H. Shorey, in his capacity as Tax for the Town
of Middletown, No. 99-117 (November 16, 2000)
The
plaintiff’s appeal from a judgment in favor of the defendant
claiming that her property taxes had been assessed illegally and that
the revaluation was either not certified pursuant to G.L. 1956 §
44-5-11(b) or was certified late, in violation of G.L. 1956 §
44-5-22. defendant granted
her some reduction in the assessments, but no relief for the
assessment process, which she claimed was illegal.
The court held that G.L. 1956 § 44-5-11(b) and 44-5-22 were
directory in nature, rather than mandatory, as the legislature did not
choose to provide a remedy for their violation.
Thus, a failure to strictly comply with them did not render the
entire tax structure illegal. The
court determined that when the plaintiff stipulated that the property
was accurately valued, she failed to meet her burden of proof that the
assessment exceeded the property’s fair value.
James
J. Thompson v. Doreen A. McCann et al, No. 99-288 (November 6, 2000)
The
defendant’s appeal a judgment for specific performance of a purchase
and sale agreement, contending that the Superior Court erred in
finding that they breached the agreement and granting specific
performance. The court
affirmed, finding that the plaintiff’s conduct had waived the
condition precedent pertaining to the transfer of the liquor license.
Because that condition was for the plaintiff’s benefit, the waiver
did not constitute a breach of contract on his part and did not excuse
the defendants’ obligation to perform.
The defendants’ conduct contributing to the parties’
inability to close on the specified date, along with other facts in
the case, meant that the decision not to strictly apply a “time is
of the essence” clause was not erroneous.
Dallas Pell Yates v. Valerie Hill and Valerie Hill, in her capacity as
Trustee of the D. Valerie Trust, No. 99-533-A (November 6, 2000)
The
defendant appeals from a trial justice judgment ordering her to
specifically perform a purchase and sale agreement.
The court held that specific performance was properly granted
because the defendant’s misgivings about selling the property were
not grounds for excusing her from performing her contractual
obligation. The
plaintiff’s and the defendant’s mutual mistake about the proper
capacity, either individually or as sole trustee of a trust, in which
the defendant should have signed the contract was a situation in which
reformation of the contract was appropriate.
The failure of conditions precedent to occur was waived because
those conditions were originally included for the benefit of the
plaintiff.
Diana M. Rivers et al v. George Poisson et al, No. 99-159 (November 3,
2000)
The
plaintiff sued defendant for
loss of consortium, negligent supervision and negligent retention of
an employee arising from various incidents wherein the defendant’s
employee placed harassing phone calls to the plaintiff.
The defendant employer filed motions for summary judgment with
respect to the plaintiff’s main claims and the trial justice granted
partial summary judgment. The
Court concluded that, on the facts, no duty existed to anticipate that
telephone calls would be made to the plaintiff, and that no duty
existed after the termination of the calls to discharge defendant
janitor.
State
v. Donna Dellatore, No. 98-298 (November 3, 2000)
The
defendant appealed her conviction of the second-degree murder of her
newborn child. The Court
found that the trial justice’s instructions to the jury addressed
both prongs of the Amaro test.
Any error in failing to instruct the jury that the child was
“born alive” was harmless.
Lori
Kiley vs. Steven Patterson, No. 98-46-A (November 2, 2000)
The
plaintiff sued for personal injuries arising from a baseball game
wherein defendant slid into plaintiff.
After summary dismissal of her action against defendant on
grounds of assumption of the risk, in the absence of Rhode Island law,
the court adopted a duty of care measured not by ordinary negligence
standards but by willfulness or recklessness standards. At trial, if
plaintiff could only prove defendant's negligence, she could not
recover. If, however, as some evidence indicated, she could prove that
defendant acted recklessly or intentionally in executing a take-out
slide forbidden by league rules, she might recover.
John T. Gormly v. Linda R. Gormly, No. 98-272 (November 1, 2000)
The
plaintiff appealed a decision of the Superior Court holding that the
defendant former spouse was entitled to the increase in value of the
plaintiff’s 401(k) plan because the distributions to the defendant
had not been timely made. The
Court held that the Family Court has jurisdiction over post divorce
property issues, however, the trial justice did not infringe upon the
Family Court’s exclusive jurisdiction as the defendant spouse was
merely given compensation for the use of money that was rightfully
hers to begin with.
Maria
Lindia v. Awilda Nobles et al, No. 99-268 (November 1, 2000)
The
plaintiff appealed the trial justice’s dismissal with prejudice of
plaintiff’s action for personal injuries pursuant to Super. R. Civ.
P. 41(b)(2) for failure to timely serve the defendant with process.
The Court reversed the trial justice holding that Super. Ct. R.
Civ. P. 41(1), a special rule which provides for a dismissal without
prejudice for failure to serve process timely, should have been
applied by the trial justice. The
Court held that application of a special rule prevails over
application of a general rule.
Mario Olivieri, Jr. v. Sherrie L.
Olivieri, No. 99-253 (November 1, 2000)
The
defendant appealed a magistrate’s decision in a divorce proceeding
between plaintiff and defendant that certain bonds were marital assets
subject to equitable distribution.
The Court upheld the magistrate’s decision, finding that the
defendant had indicated an intent to make the bonds part of the
marital estate. Because
the defendant contributed more financially to the marriage than did
plaintiff did not mean that the magistrate erred in distributing the
property.
Jan
Reitsma, Director of the Rhode Island Department of Environmental
Management v. Global Waste Recycling, Inc., No. 2000-318 (November 1,
2000)
The
plaintiff, director of the state DEM denied defendant waste recycler's
license and sought to enjoin defendant from receiving waste materials
during an appeal of the denial. The defendant did not fund an adequate
closure fund as required to get a license to operate, nor did
defendant obtain a bond in the alternative as a court ordered. Because
defendant failed to obtain a bond or insurance policy to cover closing
costs, the trial justice enjoined defendant from accepting additional
waste material for recycling. The trial justice gave defendant
permission to resume operations by obtaining the bond or insurance
policy. The Court affirmed because defendant had failed to comply with
the trial justice's orders, had no approved closure plan for insurance
to cover, and had no insurance policy to secure closure costs.
Barbara
Rubery et al v. The Downing Corporation et al, No. 99-359 (November 1,
2000)
The
plaintiff’s brought a personal injury action against defendants for
plaintiff wife’s slip-and-fall on ice covered walkway in front of
defendants’ building. The
Court held that the defendant lessee had no duty to warn the plaintiff
wife of the dangerous condition because she had just shortly before
the accident entered the building aware of said condition.
In
re Nicole C. et al, No. 98-582 (October 27, 2000)
The
trial justice entered a decree terminating respondent mother's
parental rights to her children. respondent appealed the decree,
arguing the trial justice erred in finding that the DCYF made
reasonable efforts to provide her with programs tailored to address
her underlying problems and promote reunification with her children.
The court held the trial justice's decision was not clearly wrong, nor
did the trial justice overlook or misconceive material evidence. DCYF
made numerous attempts to enroll the respondent in several different
parenting classes as well as programs designed to treat substance
abuse. The respondent failed to attend these classes or refused to
cooperate with the programs. DCYF found respondent an apartment, paid
the first month's rent, and posted the security deposit. Within two
months she was arrested again and incarcerated for various
drug-related crimes involving both heroin and marijuana. The court
held the evidence was overwhelming and clearly supported the finding
of parental unfitness.
In
re John F. et al, No. 98-602 (October 27, 2000)
The
respondent appealed the termination of her parental rights by the
trial justice. The Court
affirmed the determination of the trial justice, finding that the
trial justice had clear and convincing evidence that the respondent
had failed to provide her children with a stable, secure, and
consistent home life. Additionally,
the trial justice had competent evidence of the respondent’s
consistent failure to avail herself of the numerous treatment services
offered to her by DCYF.
State
v. Adalberto Villafane, No. 99-20 (October 27, 2000)
The
defendant appealed his convictions for first-degree child molestation
and assault with intent to commit first-degree child molestation.
The Court, in affirming the defendant’s conviction, held that
the trial justice’s two curative jury instructions effectively
nullified any jury prejudice regarding a potentially inflammatory
statement made by the victim regarding a polygraph examination.
Moreover,
the statement only ambiguously implied that victim was the subject who
took the polygraph test.
State
v. Jeffrey Scott Hornoff, No. 99-508 (October 24, 2000)
The
defendant appealed his conviction of first-degree murder. The
Court, in affirming the defendant’s conviction, found that the trial
justice had sufficient evidence of a heinous attack and the discovery
at the scene of gloves that had obviously been removed after the
murder indicating premeditation for a first-degree murder conviction.
The Court also found that the new evidence defendant sought to
offer failed to meet the most basic criteria necessary to warrant a
new trial.
Maureen
V. Rubano v. Concetta A. DiCenzo, No. 97-604 (September 25, 2000)
The
Family Court certified this jurisdictional question to the Court
regarding a consent agreement between biological mother and
non-biological former domestic partner which arranged latter’s
visitation with the couple’s child.
The Court remanded, holding that the Family Court did have
jurisdiction to determine the existence of a mother and child
relationship between the non-biological partner and the child and, as
such, could enforce the parties' written agreement to allow
non-biological partner to have visitation.
