text:
In re
Advisory Opinion to the House of Representatives (Casino II) No. 05-134
(September 19, 2005)
At the request of the Honorable House of
Representatives of the State of Rhode Island and Providence Plantations,
Justices of the Supreme Court gave an advisory opinion on the
constitutionality of pending legislation dealing with a proposed casino
in the town of West Warwick. The proposed enactment at issue,
entitled "Establishment and Extension of Gambling Activities and Other
Facilities," would amend legislation that was passed by the General
Assembly in 2004 and codified at chapter 9.1 of title 41 (2004 Casino
Act). The request made by the Honorable Members of the House
asked: (1) whether the proposed Casino Act complied with article 6,
section 15, of the Rhode Island Constitution requiring all casinos be
operated by the state; (2) whether the proposed Casino Act complied with
article 6, section 22 requiring a statewide and municipal referendum to
become effective; (3) and (4) whether the proposed Casino Act violated
the federal and state equal protection guarantees.
The Justices answered the first question in the
negative, opining that the proposed Casino Act did not grant the state
sufficient power to make decisions concerning all operational aspects of
the gaming enterprise as required by article 6, section 15 of the Rhode
Island Constitution and as interpreted in In re Advisory Opinion to
the Governor (Casino I), 856 A.2d 320 (R.I. 2004). The
Justices answered the second question in the affirmative, opining that
the requirements of article 6, section 22 would be satisfied if
referenda questions receive local and statewide majority approval.
Finally, the Justices declined to answer the third and fourth questions
relating to the federal and state equal protection clauses, because to
do so would violate the prohibition against fact-finding in the context
of issuing an advisory opinion.
In re Philip S., No. 04-342 (September 19, 2005)
The petitioner, an adult who was adopted as an
infant, sought to learn the identity of his biological parents. He
based his claim on his understanding of the requirements of the Mormon
religion. The Family Court denied the petition, and this Court
affirmed that decision, holding that the petitioner had failed to
establish "good cause" for the relief that he sought. In its
opinion, the Court reiterated its view as to the great importance of
confidentiality in the adoption context.
State v. Gary John,
No. 03-332 (September 16, 2005)
The defendant was convicted on two counts of
violating a no-contact order issued pursuant to G.L. 1956 §
12-29-4 which prohibited him from contacting his
ex-wife. As a result, he was given an enhanced sentence as a
third-time offender pursuant to G.L. 1956 § 12-29-5, which is part of
the Domestic Violence Prevention Act.
This Court held
that the defendant could properly invoke its very recent ruling in
State v. Martini, 860 A.2d 689 (R.I. 2004), which held that a
conviction for "domestic disorderly conduct" cannot serve as the basis
for enhancing a sentence pursuant to § 12-29-5. Consequently, the
Court vacated the defendant's felony conviction and sentence and
remanded the case for resentencing.
In addition, the Court held that the trial
justice did not err in denying defendant's Rule 29 motion for judgment
of acquittal. The Court also held that the trial justice acted
consistently with the provisions of Rule 404(b) and Rule 403 of the
Rhode Island Rules of Evidence when he admitted evidence of three prior
incidents of contact between defendant and his ex-wife in violation of
previously issued no-contact orders and when he admitted the actual
prior no-contact orders which prohibited defendant from contacting his
ex-wife. Finally, the Court held that the trial justice's
instructions to the jury were legally sufficient.
Marion McAusland v.
Dennis Carrier, No. 03-300 (September 2, 2005)
After a nonjury
trial, the Superior Court ruled that the plaintiff had acquired a
prescriptive easement over that portion of a circular driveway that was
on defendant's property (the rest of the circular driveway being on
plaintiff's property). The Superior Court further ruled, however,
that the easement was personal to the plaintiff and would terminate upon
the plaintiff's death.
After discussing the well-established legal principle that easements are
presumed by the law to be permanent and not merely personal, this Court
held that the Superior Court erred when it ruled that the easement in
question was personal to the plaintiff. The Court noted that the
defendant failed to rebut the presumption that an easement is permanent
(an "easement appurtenant").
The case was remanded to the Superior Court for further proceedings.
State v. Antonio Gomes,
No. 02-585 (September 2, 2005)
defendant appeals from his Superior Court jury conviction of
second-degree murder. This Court held that the District Court
erred in issuing a search warrant for the defendant's blood under G.L.
1956 § 12-5-2 as that statute was worded at the time the search warrant
was issued. Nevertheless, the admission at trial of DNA evidence
that was derived from the improperly seized blood constituted harmless
error beyond a reasonable doubt in view of the overwhelming independent
evidence of the defendant's guilt. This Court further held the
Superior Court did not err in granting the prosecution's motion in
limine to preclude the admission of a particular police report in view
of the fact that defense counsel's offer of proof was inadequate.
The defendant's appellate arguments about the admissibility of certain
hearsay statements under Rule 803(2) and Rule 803(3) of the Rhode Island
Rules of Evidence were not raised in the Superior Court and, therefore,
were waived under the "raise or waive" rule
Stanley Henshaw III v.
Brendan P. Doherty et al, No. 03-526 (September 2, 2005)
The plaintiff was arrested by the state police on a charge of simple
assault. He was eventually acquitted of that charge and then sued
the state and various members of the State Police for malicious
prosecution, false arrest, and negligent supervision. The Superior
Court granted summary judgment in favor of all the defendants, and this
Court affirmed that judgment. The Court held that there was probable
cause for the issuance of an arrest warrant at the time that the
plaintiff was arrested. The state police had been electronically
monitoring a meeting between the plaintiff and an undercover state
police officer, who was part of a team investigating allegations that
the plaintiff was operating an illegal sex-for-hire business. The
Court held that the troubling substance of the electronically monitored
conversation between the plaintiff and the undercover officer provided a
more than sufficient basis for a finding of probable cause for the
issuance of a warrant for the plaintiff's arrest on a charge of simple
assault. In view of its ruling as to the probable cause issue, the
Court held that the plaintiff's allegations were properly dismissed in
their entirety.
Mildred J. Bajakian v.
Stephan G. Erinakes, Executor of the Will of Blanch Erinakes,
No.03-488 (September 2, 2005)
This case involves a will contest between two
siblings with respect to their deceased mother's will. A jury in
Kent County Superior Court found that the mother had lacked testamentary
capacity at the time that she executed the will. This Court
affirmed the judgment in favor of the plaintiff, who had challenged the
The Court analyzed and discussed Rule 803(3) of
the Rules of Evidence which makes certain declarations about a person's
then-existing state of mind admissible as evidence under certain
rigorously defined conditions.
The court also addressed the criteria which
should guide determinations about the testamentary capacity of a person
who has executed a will.
In conclusion, the Court held that the pertinent issues of fact and
credibility were properly referred to the jury and that there was no
reason why the jury's verdict should not be upheld
John Candido v.
University of Rhode Island, No. 03-412 (September 2, 2005)
The plaintiff brought a negligence claim against
the defendants, the University of Rhode Island (URI) and the Rhode
Island Board of Governors for Higher Education, seeking damages for the
injuries that he sustained after falling on the URI campus on the night
of September 6, 1997. After a jury found that the defendants were
not negligent, the plaintiff filed a motion for a new trial, which was
subsequently denied by the trial justice. The plaintiff appealed,
and this Court affirmed the order of the Superior Court denying the
plaintiff's motion for a new trial.
This Court held that the trial justice properly
adhered to the standards concerning new trial motions and sufficiently
articulated the basis for his finding that sufficient competent evidence
existed to justify the jury's verdict in light of the jury charge.
This Court also held that the trial justice did not overlook or
misconceive any material or relevant evidence and was not otherwise
clearly wrong. Finally, this Court held that the trial justice did
not err when, in his decision denying the motion for a new trial, he
compared the facts of the plaintiff's case with those in Malsen v.
Cicchelli, 621 A.2d 183 (R.I. 1993
State of RI v. David Gordon (No 2004-148 C.A.) (September 1, 2005)
The defendant
appealed from convictions for first-degree arson, conspiracy, and
insurance fraud. The Court denied the appeal, holding that the
trial justice did not commit reversible error: (1) in finding that the
defendant had waived and forfeited his right to counsel and in ordering
defendant to immediately proceed to trial pro se, with
standby counsel; (2) in dealing with a vaguely worded request by a
private attorney concerning the possible entry of appearance on behalf
of the defendant three days after the trial had commenced; and (3) in
deciding not to provide the defendant with additional money in
connection with his defense. In addition, the Court held that the
trial justice did not abuse his discretion: (a) in qualifying a witness
for the prosecution as an expert; and (b) in permitting the prosecution
in its cross-examination of the defendant to go beyond the scope of the
testimony given on direct examination.
A. Michael Marques v. Harvard Pilgrim Healthcare of New England, Inc.(
2002-103 Appeal.) (September 1, 2005)
Thomas P.
Seymour, appearing pro se, appealed from the denial of his
motion for summary judgment and from the grant of summary judgment in
favor of the appellee, Harvard Pilgrim Healthcare of New England, Inc.
The Court concluded that genuine issues of
material fact exist in this case in the present state of the record that
precluded the granting of summary judgment in HPHC-NE's favor.
The Court held that, in general, Title III of
the Americans with Disabilities Act of 1990 (ADA) mandates that health
insurers provide equal access to health insurance for all
persons, regardless of disability. The Court further held,
however, that an insurance provider may deny equal health insurance
coverage under the "safe harbor" provision of the ADA, on condition
that the insurance provider can demonstrate that the
denial of health insurance coverage was based on
sound actuarial principles or that its decision was based upon actual or
reasonably anticipated experience. If the provider so
demonstrates, the burden would shift back to the disabled plaintiff who
would then have to prove that the insurance provider's articulated
reasons for its denial were, in fact, a "subterfuge" to evade the
purposes of Title III of the ADA. The case was remanded to the
Superior Court for further proceedings.
Mary D. Croce v. State of Rhode Island,
Office of Adjutant General et al. ( No. 2002-459-Appeal.) (September
1, 2005)
This is an age discrimination case.
The plaintiff's primary allegation of discrimination relates to a layoff
that occurred in September of 1995. Although the plaintiff did not
commence litigation until December of 1998, she claimed that the
applicable statutes of limitation should not bar her claim in view of
her understanding of the "continuing violation" exception that is
available in appropriate circumstances in the context of the
anti-discrimination statutes. After explaining the nature and extent of
the "continuing violation" exception, this Court held that that
exception would be inapplicable to the plaintiff's attempt to bring the
September 1995 layoff within the limitations period. As for the
other alleged acts of discrimination referenced in plaintiff's
pleadings, the Court held that summary judgment was correctly granted in
the defendants' favor. Accordingly, the Court affirmed the summary
judgment that had been granted by the Superior Court.
State of RI v. Judith Ensey.( 2002-236-C.A.) ( September 1, 2005)
The defendant
appeals from her jury conviction of driving under the influence in
contravention of G.L. 1956 § 31-27-2. This Court held that the
trial justice did not err in admitting the results of a breathalyzer
test, where the record reveals that the state satisfied all of the
foundational requirements set forth in § 31-27-2(c). In addition,
the cautionary instruction given by the trial justice in reaction to
defense counsel's improper closing argument did not constitute a basis
for reversal.
Oliver Lyons v. State of RI (No
2002-278-Appeal.) ( September 1, 2005)
The Superior Court hearing justice did not err in denying an application
for post conviction relief where the applicant failed to prove that
defense counsel's tactical decision not to subpoena certain medical
records constituted ineffective assistance of counsel.
Kathleen M. Gorman v.
Daniel W. Gorman, No. 03-611 (August 26, 2005)
This appeal stemmed from a disagreement over the
meaning of a property settlement agreement that was approved by the
Family Court in connection with the parties' divorce and was
incorporated by reference into the final divorce decree. The
subsequent dispute centered around two separate stock plans in which the
defendant husband was a participant. One of those stock plans was
specifically and accurately named in the agreement in question, whereas
the other was not. The Family Court found the property settlement
agreement to be ambiguous and then proceeded to reform the document so
that it would encompass both stock plans. The defendant appealed.
This Court recognized that the Family Court has
broad statutorily conferred power to oversee divorce proceedings and to
decide whether to approve a proposed property settlement. This
Court went on to hold, however, that the Family Court erred in this
instance when it found the agreement to be ambiguous; this Court held
that the terms set forth in the property settlement agreement are
William J. Flanagan et
al. v. Marcia Blair et al., No. 04-179 (August 26, 2005)
The Supreme Court
held that the motion justice in the Superior Court did not abuse his
discretion under Rule 37(b)(2)(C) of the Rhode Island Superior Court
Rules of Civil Procedure when he entered final judgment in the
defendant's favor after the plaintiff defied the court's order to
provide responses to the defendant's discovery requests by a date
specified in the order.
Douglas J. Pelletier v.
State of RI,
No. 04-74 (August 26, 2005)
In light of this Court's earlier decision in McKinney v. State,
843 A.2d 463 (R.I. 2004), the hearing justice erred in granting an
application for postconviction relief "solely on the issue of
resentencing," where there was no evidence that the sentence resulting
from a negotiated plea agreement sentence was either illegal or
State of RI v. Perez,
No 2002-241 (August 26, 2005)
The defendant
appeals from his conviction, after a jury trial, of first-degree murder
for killing his mother. The trial justice did not err in denying
the defendant's motion to sequester the state's expert rebuttal witness
where that expert's presence was essential to the presentation of the
state's rebuttal. In view of the fact that the characteristics and
behaviors associated with both "antisocial personality disorder" and
"conduct disorder" are essentially the same and that there already was
testimony about the latter disorder before the jury, and considering the
fact that the trial justice mitigated any potential prejudice by
granting defense counsel's request for a continuance, the trial justice
did not err in allowing the state's expert witness to testify about
"antisocial personality disorder" -- even though that diagnosis had not
been included in the state's supplemental response to discovery.
The trial justice did not err in denying the defendant's motion to
suppress certain statements that he made to the police, because
defendant had been read his Miranda
rights and had then knowingly and voluntarily waived them before giving
two statements to the police. Moreover, in view of the
overwhelming evidence against the defendant, any possible error in this
regard would have been harmless beyond a reasonable doubt. The
trial justice properly denied the defendant's motion to dismiss for lack
of a speedy trial after the defendant failed to show that his right to a
speedy trial had been violated.
Richard Hyatt v. Village House Convalescent Home, Inc., et al. (No
2004-25-Appeal) (August 24, 2005)
The plaintiff appealed from a Superior Court
judgment in favor of one of the defendants. The judgment at issue
was entered after the Superior Court granted the defendant's
Super.R.Civ.P. 12(b)(6) motion to dismiss the plaintiff's complaint as
it related to the defendant because the plaintiff's complaint did not
contain factual allegations sufficient to support any cause of action
against the defendant. The Court affirmed the dismissal of counts
2, 3, and 5 of the complaint, but remanded the case to the Superior
Court for further litigation with respect to counts 1 and 4.
A. Raso v. Ashbel T. Wall, Jr., Director of the Department of
Correction (No. 2003-73-C.A) (August 23, 2005)
The applicant
appealed from the Superior Court's denial of his application for
postconviction relief. Without reaching the merits of Edward A. Raso's
argument, this Court remanded the case for a finding of whether his
application for postconviction relief was barred by the doctrine of
laches--since this Court has now ruled that the laches doctrine may be
available in some circumstances in the context of applications for
postconviction relief.
Barbara J. Davis et al v. Ford Motor Credit Co., et al, No. 04-221
(August 12, 2005)
Where an individual was alleged to have
negligently operated a leased vehicle, and where there were no
allegations of actual negligence on the part of the defendant lessor,
both the individual and the defendant lessor constituted a single
tortfeasor for purposes of the Uniform Contribution Among Tortfeasors
Act. Pursuant to the pertinent statutes and this Court's
precedents, the plaintiffs' execution of a valid and enforceable release
running to the operator of the vehicle served also to release the
defendant lessor from exposure to possible vicarious liability for the
operator's action.
Donna DelSanto, Administratrix of the Estate of Geraldine DelSanto et
al. v. Hyundai Motor Finance Co., et al, No. 03-227 (August 12,
Where an individual was alleged to have
negligently operated a leased vehicle, resulting in the wrongful death
of another person, and where there were no allegations of actual
negligence on the part of the defendant lessor, both the individual and
the defendant lessor constituted a single tortfeasor for purposes of the
Joint Tortfeasor Act. Pursuant to the pertinent statutes and this
Court's precedents, plaintiff's execution of a release running to the
vehicle's operator also served to release the defendant lessor from
being vicariously liable for the operator's action.
State v.
Gahlil Oliveira, No. 00-470; State v. Victor St. Hill et al, No.
00-521 (August 5, 2005)
The defendants,
Gahlil Oliveira, Victor St. Hill, and Amita St. Hill, appealed from a
judgment of conviction on two charges. The Supreme Court reversed
the judgment of the Superior Court with respect to the felony murder
convictions, and affirmed the judgment with respect to the conspiracy
The indictment charged Gahlil Oliveira and Victor St. Hill with "murder
in the first degree, to wit: murder committed during the course of the
perpetration, or attempted perpetration of felony manufacture, sale,
delivery or other distribution of a controlled substance otherwise
prohibited by the provisions of Chapter 28 of title 21 of the General
Laws of Rhode Island, in violation of § 11-23-1 of the general laws of
Rhode Island, 1956, as amended (Reenactment of 1994)." On appeal,
Gahlil Oliveira and Victor St. Hill argued that the evidence presented
by the prosecution at trial was legally insufficient to support their
conviction of first-degree felony murder, and thus the trial justice
erred by denying their motion for judgment of acquittal. Gahlil
Oliveira and Victor St. Hill asserted that no reasonable reading of G.L.
1956 § 11-23-1, the felony-murder statute, encompassed
their actions because all the evidence at trial, viewed in the light
most favorable to the state, demonstrated that they were unsuccessfully
attempting to purchase or possess a controlled substance, not to
manufacture, sell, deliver, or distribute it. The Supreme Court held
that the "possession with intent to deliver" is an independent unit of
prosecution under the Rhode Island Controlled Substances Act,
G.L. 1956 chapter 28 of title
21, and that the Legislature did not include the statutory felony
"possession with intent to deliver" within the enumerated felonies
supporting a first-degree felony-murder charge. The Supreme Court
also held that attempting to acquire a substantial quantity of a
controlled substance, without some further act directed at the delivery
or distribution of the contraband, did not satisfy the substantial step
required to constitute attempted distribution or delivery. The
Supreme Court reviewed the evidence in this case, and determined that
the record was devoid of any evidence that establishes, either directly
or inferentially, that Gahlil Oliveira and Victor St. Hill took any
action in an effort to further distribute or deliver the cocaine.
Consequently, the Supreme Court concluded that their motions for
judgment of acquittal on the first-degree felony-murder count, should
have been granted.
State v. Albert Verrecchia (2001-554-C.A) (August 2, 2005)
Following our remand in State v. Verrecchia,
766 A.2d 377 (R.I. 2001), the defendant appeals from the denial of his
motion to suppress evidence obtained pursuant to a search warrant.
The affidavit submitted in support of the search warrant at issue was
not constitutionally flawed, and it contained ample evidence upon which
to base a determination of probable cause. In addition, the motion
justice did not err in denying defendant's request for a hearing
pursuant to
Franks v. Delaware, 438 U.S. 154 (1978), since, even if defendant's
allegations concerning alleged omissions and falsehoods were true and
would therefore have to be set aside, there would remain more than
sufficient untainted evidence to support a finding of probable cause.
State v. Kailash Mohapatra, No. 04-21 (July 25, 2005)
The defendant,
Kailash Mohapatra (defendant), appeals from a jury conviction on one
count of second-degree child molestation in violation of G.L. 1956 §
11-37-8.3. He argues (1) that evidence of prior sexual misconduct
involving a person other than the complaining victim should not have
been admitted into evidence; (2) the trial justice should have given a
limiting instruction concerning uncharged sexual misconduct involving
the victim; and (3) the use of the criminal information as the verdict
form violated his right to a fair trial.
Concerning the
first issue, the prior sexual misconduct was sufficiently similar and
contemporaneous to support the trial justice's conclusion that the
testimony was admissible. As for the second issue, the trial
justice's failure to give a limiting instruction did not constitute
reversible error because the defendant utilized the uncharged sexual
misconduct involving the victim on cross-examination and during closing
argument. Concerning the third issue, the defendant failed to
properly preserve that argument for appeal. Accordingly, we
Tanner v E. Greenwich Town Counsel No 2002-677 (July 18, 2005)
In this case, the defendants, the Town Council
of the Town of East Greenwich and its five members, in their official
capacity, (hereinafter collectively referred to as "town council"),
appealed from a grant of summary judgment and an award of attorney's
fees in favor of the plaintiff, Frederick S. Tanner, on his allegation
that the town council appointed three people to the zoning board of
review and planning board in violation of the Open Meetings Act (OMA).
The plaintiff alleged that the posted notice for the disputed meeting
was misleading because it listed the town council meeting as consisting
of "Interviews for Potential Board and Commission Appointments," and
then listed the names of potential appointees beside their respective
scheduled interview times, with each interview scheduled twenty minutes
apart, but failed to give any indication that the town council intended
to vote on several appointments.
The Supreme Court affirmed the grant of summary
judgment and held that the plaintiff had standing to challenge the
violation of the OMA; that, notwithstanding the town council's
subsequent renotice and reappointment of the disputed appointees, the
issues of whether the town council in fact violated the OMA and, if so,
whether it did so willfully or knowingly were still justiciable
controversies; that the requirement that a public body provide
supplemental notice, including a "statement specifying the nature of the
business to be discussed," obligates that public body to provide fair
notice to the public under the circumstances, or such notice based on
the totality of the circumstances as would fairly inform the public of
the nature of the business to be discussed or acted upon; and that the
original notice failed to comply with this standard.
In re Court Order Dated October 22, 2003, No. 03-613 (July 19, 2005)
Just prior to the start of a high-profile
murder trial, the trial justice entered a restrictive order prohibiting
the publication of specified identifying information and/or visual
depictions of the state's witnesses in the case. Soon after the
motion was granted, the petitioners, a local newspaper and one of its
reporters, and a local television media outlet and several of its
employees, allegedly violated the order by publishing certain
information about witnesses in the trial. In response, the state
began its efforts to bring contempt charges against the petitioners, and
the trial court ordered them to appear in order to show cause why they
should not be held in contempt. On a writ of certiorari to the
Court, the petitioners requested that the Court review the restrictive
order and the show cause orders, and argued that the restrictive order
was an unconstitutional infringement on their First Amendment rights.
Without fully addressing the constitutionality of the restrictive order,
the Court quashed both the restrictive and show cause orders, finding
that the petitioners had been denied due process when they were not
given notice of the order and its contents, and when they were not fully
aware that the order was directed at them. Because the process was
flawed, the Court determined that it would be unjust and inappropriate
to sanction a contempt hearing. In addition, the Court reiterated
its concerns about the constitutional implications of trial court orders
that constitute prior restraints on speech or publication.
Newport Realty, Inc. v. Patrick Lynch, in his capacity as Attorney
General of the State of Rhode Island, No. 03-363 (July 19, 2005)
This is an action
to quiet title to several streets located in Newport,
identified as North Commercial Wharf, Scott's Wharf, and an unnamed
connecting street. The plaintiff, Newport Realty, Inc., as owner
of all the property that abuts these streets, claimed that the streets
were private rights-of-way that had merged by virtue of its unity of
title. The State of Rhode Island is the only defendant before the
Court on appeal.
The trial
justice, in a written decision, declared that the issue to be decided
was the intent of the grantor when it filed a development plan but that
such proof is almost always "non-existent." He proceeded to allow
and consider parol evidence and extrinsic evidence, without a finding
that the development plan, a recorded instrument, was ambiguous.
Adams v Christie's No 2004-325 Appeal (July 18,2005)
This appeal
concerns a challenge to the Providence Athenaeum's proposed sale of its
copy of the Double Elephant Folio of John James Audubon's Birds of
America (Audubon folio) at public auction, pursuant to a consignment
agreement with Christie's, Inc. The plaintiffs, fifty-eight named
individuals, all shareholders/members of the Providence Athenaeum,
alleged in their complaint that the officers and directors of the
Athenaeum were unlawfully elected in violation of the corporate charter.
They further accused the officers and directors of financial management
and breach of fiduciary duty. After a thirteen-day jury-waived
trial, the trial justice denied the plaintiffs all requested relief,
dismissed the complaint in its entirety, and awarded the defendants
their costs.
re MacKenzie C. No 2003-128 ( July 18, 2005)
The Department of
Children, Youth and Families (DCYF) appealed from a Family Court decree
dismissing an abuse petition filed against the parents of a child
who suffered nineteen fractures before she was nine-weeks-old. In
his original decision, the trial justice rejected the parents' proffered
medical explanation of the child's injuries, and made a finding, based
on the inference that the parents were the principle caretakers of the
child, that the parents had caused or allowed to be caused the child's
injuries. Three years later, however, the trial justice reopened
the case, heard new evidence, and reversed his finding of abuse.
After reviewing the extensive record, the Supreme Court held that the
trial justice did not err in reopening the case, admitting the testimony
of the parents' expert witness, and dismissing the petition upon
reconsideration. The Supreme Court declined to address several
additional issues raised by DCYF in their appeal, as the disposition of
the abuse petition rendered them moot.
Kathy Dalo v. Judy
Thalmann et al, No. 03-403 (July 13, 2005)
This appeal
arises from a claim of damages brought by the holder of a defaulted
promissory note against one of the makers, the defendant, Judy Thalmann.
After the Superior Court entered summary judgment on the issue of
liability and, after a bench trial, entered judgment for damages in
favor of the holder, the defendant appealed. The Supreme Court
affirmed the grant of summary judgment on the issue of liability.
The Supreme Court vacated the judgment as to damages, holding that an
action for damages on a promissory note provides the parties with a
right to a jury trial and, after a jury trial is demanded, it must be
provided unless waived pursuant to Rule 39 of the Superior Court Rules
of Civil Procedure. The defendant did not waive appellate review
of her right to a jury trial by failing to object in the Superior Court
because a party waives the Supreme Court's review of a denial of a right
to a jury trial on appeal by not requesting a jury trial or by a valid
waiver pursuant to Rule 39.
State v. Mark A. Hallenbeck, No. 03-340 (July 13, 2005)
After the
stabbing death of a maintenance worker at the Warwick Mall on May 30,
2001, the defendant was indicted on a charge of first-degree murder.
After trial before a jury, the defendant was found not guilty of first-
and second-degree murder, but the jury returned a guilty verdict on the
lesser-included offense of manslaughter. After denying the
defendant's motion for a new trial, the trial justice sentenced the
defendant to thirty years at the Adult Correctional Institutions, with
twenty years to serve and ten years suspended and ten years probation.
Subsequently, the defendant filed a motion to reduce sentence pursuant
to Rule 35 of the Superior Court Rules of Criminal Procedure.
The Supreme Court
held that the trial justice did not commit error by failing to properly
instruct the jury on the issues of self-defense and manslaughter; that
the trial justice did not err in denying the defendant's motions for
judgment of acquittal and for a new trial; that the trial justice
properly denied the defendant's motion to admit the victim's criminal
record into evidence; that the trial justice, however, correctly
admitted an enlarged photograph of the crime scene into evidence; and
that the defendant failed to preserve the issue of the proper imposition
of his sentence for appellate review. Consequently, the Supreme
Court affirmed the judgment of conviction.
In re David L, No. 04-76 (July 12, 2005)
This is a
mother's appeal from a Family Court decree terminating her parental
rights to her son David, born November 5, 2001. The mother's
parental rights were terminated based on allegations that (1) she had
abandoned or deserted the child, and (2) her parental rights to another
child previously had been terminated and she continues to lack the
ability or willingness to respond to rehabilitation services.
On appeal, the
mother conceded that DCYF proved a prima facie case of
abandonment pursuant to G.L. 1956 § 15‑7‑7(a)(4), but argued that she,
in fact, successfully rebutted this prima facie case.
In addition, she argued, the trial justice committed clear error by
terminating her parental rights under § 15‑7‑7(a)(2)(iv) because she had
demonstrated before trial that she no longer was acting in a manner
detrimental to David. Third, the mother asserted that the trial
justice erred in finding her to be an unfit parent to David because at
the time of trial she was engaged in a voluntary residential substance
abuse treatment program, had achieved sobriety, and was effectively
addressing her mental health needs. Lastly, she contended that the
trial justice erred in finding that terminating her rights to the child
would be in David's best interest.
The Supreme Court
ruled that there was sufficient evidence in the record to support the
trial justice's factual findings and legal conclusions and affirmed the
Family Court decree terminating the mother's parental rights.
Paul J. Waters v. Charles F. Magee, Jr., No. 03-630 (July 12, 2005)
The defendant,
Charles F. Magee, Jr., appealed from a Family Court order granting sole
custody of the parties' two minor children to the plaintiff, Paula J.
Waters, setting forth a visitation schedule, ordering the payment of
current and retroactive child support, and restraining him from
assaulting, molesting, or otherwise interfering with the plaintiff in
any manner until April 7, 2006. The defendant argued on appeal
that the trial justice overlooked or misconceived material evidence or
was otherwise clearly wrong regarding the following issues: (1) her
restriction of defendant's cross-examination of the plaintiff about the
defendant's alcohol abuse; (2) the limitations she placed on the
defendant's visitation with his minor children; and (3) establishing a
child support arrearage "from a time when the parties at the very least
enjoyed shared placement of the minor children with [defendant] caring
for the children a majority of the time." In addition, the
defendant argued that the trial justice was barred by res judicata from
entering a restraining order against the defendant because it was "based
upon the same facts and circumstances that another justice of the same
court denied after a full hearing on the issue."
State v. John Davis,
No. 03-622 (July 8, 2005)
The defendant appealed from judgments of conviction for assault with a
dangerous weapon with intent to rob and for breaking and entering.
The Supreme Court affirmed, rejecting the defendant's argument that the
trial justice erroneously denied his motion for a new trial. The
Supreme Court held that the trial justice did not overlook or
misconceive material evidence in deciding to deny the defendant's motion
for a new trial. Also, although the defendant failed to preserve
the issue for appeal,
the state did not have to persuade a unanimous jury beyond a reasonable
doubt that the defendant was either a principal or an aider or abettor
the defendant's manner of participation was not an element of the crimes
charged in the indictment.
James J. Malachowski v. State of Rhode Island et al, No. 03-268
(July 8, 2005)
In this appeal and petition for certiorari, the
Supreme Court reversed summary judgment for the defendants on the
plaintiff's declaratory judgment action based on the trial justice's
erroneous conclusion that the Unclassified Pay Plan Board was an
administrative agency within the Administrative Procedures Act.
The Supreme Court denied the petition for certiorari based on its
conclusion that the Personnel Appeals Board lacked jurisdiction over the
plaintiff's appeal pursuant G.L. 1956 § 36‑4‑42 because the plaintiff's
salary was not reduced by his appointing authority.
E. Perrotti et al v. Paul S. Gonicberg, No. 04-138 (July 7, 2005)
The plaintiffs,
Jamie E. Perrotti and Paul A. Perrotti, appealed from the denial of
their motion for a new trial in their negligence action seeking recovery
for physical and psychological injuries allegedly suffered in an
automobile accident. At the time of the accident, Mrs. Perrotti
was approximately six months pregnant. After a trial on the issue
of damages, a jury found in favor of the plaintiffs and awarded them
$750 in damages. Before submitting the case to the jury, however,
the trial justice had ruled, sua sponte, that Mrs.
Perrotti had failed to establish a prima facie case with
respect to her claim of emotional injury and anguish because of her
concern about the health of her unborn child.
The plaintiffs
raised two issues on appeal. Their first assertion of error was
that the trial justice erred in dismissing Mrs. Perrotti's claim for
mental suffering occasioned by her concern for her unborn child.
Secondly, they maintained that it was error to preclude them from
presenting evidence that their two-year-old daughter suffered a broken
leg in the accident.
Albert E. Hagenberg v. Scott Avedisian et al, No. 04-182 (July 7, 2005)
This appeal
involves the application of G.L. 1956 § 45-19-1, the Injured on Duty
(IOD) statute, and the unilateral revocation of medical reimbursement
benefits to the plaintiff, Albert E. Hagenberg, by the defendants, the
City of Warwick and various municipal officials. The Supreme Court
affirmed the judgment in favor of the defendants, which denied both
declaratory and injunctive relief; and also affirmed the judgment in
favor of the plaintiff, but on grounds different from those that the
trial justice relied upon.
Specifically, the
Court concluded that the Board of Public Safety was vested, by
Warwick's charter, with the authority to direct the pension fund roll
and that the board unanimously concluded in 1979 that the plaintiff was
entitled to continued reimbursement for job-related medical expenses.
State v. Eddie M. Linde, No. 03-336 (July 7, 2005)
After the
shooting death of a coworker at the Susse Chalet motel in
Smithfield on
October 23, 2001, the defendant was charged by indictment with
first-degree murder and additional felony offenses. The defendant
appeals from a judgment of conviction entered in the Superior Court
after a jury returned guilty verdicts on nine different counts,
including murder in the second degree. After denying the
defendant's motion for a new trial, the trial justice sentenced the
defendant on the various felonies, most significantly to life
imprisonment, consecutive to a forty-year sentence with twenty years to
The Supreme Court
held that the trial justice did not err in refusing to suppress evidence
seized from under the defendant's motel room mattress pursuant to a
search that his roommate consented to. In addition, the Supreme
Court held that the trial justice did not err by refusing to instruct
the jury on self-defense because he correctly assessed that there was no
evidence of self-defense in this case. Consequently, the Supreme
Court affirmed the judgment of conviction.
Bridget Selwyn v. Karen Ward et al, No. 02-637 (July 7, 2005)
The plaintiff,
who was injured when a minor poured grain alcohol onto an open flame,
appeals from a grant of summary judgment in favor of the defendant, RC
Liquors, Inc., a liquor store, which allegedly sold the grain alcohol to
another minor. The plaintiff argues that the defendant knew or
should have known that minors have a tendency to ignite grain alcohol,
an extremely flammable substance. Alternatively, the plaintiff
asserts that selling grain alcohol to minors is ultrahazardous or
abnormally dangerous, warranting application of strict liability.
The Supreme Court
affirmed the summary judgment and held that the defendant did not owe a
duty of care to the plaintiff to protect her from the deliberate
ignition of the grain alcohol because it could not reasonably have
foreseen such a risk. Further, the Court held that selling grain
alcohol to minors is not an ultrahazardous or abnormally dangerous
activity for purposes of application of strict liability.
Edward E. Young, Sr. v. State, No. 03-0454 (July 1, 2005)
The applicant, Edward E. Young, Sr., appealed pro se from
the Superior Court's denial of his application for post-conviction
relief. Young was convicted of three counts of first-degree child
molestation sexual assault on September 20, 1996, and sentenced to
forty-five years at the Adult Correctional Institutions on each count,
to run concurrently, with twenty years to serve, and the balance
suspended with probation. The applicant argued that: his trial
counsel was ineffective by failing to present the testimony of two
witnesses who he claims would have impeached the victims testimony; his
appellate counsel was ineffective in failing to raise issues on appeal
about the failure to present those witnesses and the denial of his
motion for a new trial; the jury was prejudiced against him, which
should have resulted in a mistrial; the trial justice had an ex
parte conversation with the prosecutor; the prosecutor did not act
in good faith in bringing the case against him; and there were
inconsistencies in witness statements compared with trial testimony.
The Supreme Court found no merit to the applicant's arguments and
affirmed the judgment denying him post-conviction relief.
Don-Lin Jewelry Co., Inc. v. The Westin Hotel Company, No. 04-153
(June 30, 2005)
This appeal
arises from the plaintiff's claim that the defendant breached a bailment
agreement by failing to return the bailed property. At the close
of the plaintiff's evidence in this nonjury trial, the Superior Court
granted the defendant's motion to dismiss in accordance with Rule 41 of
the Superior Court Rules of Civil Procedure and entered judgment against
the plaintiff. The Supreme Court affirmed, holding that, when the
plaintiff surrendered possession of personalty to the defendant with the
sole instruction that the bailed property be delivered to a third party
and the defendant complied with that instruction, the bailment
terminated. The plaintiff cannot hold the defendant liable for
loss of the bailed property under the original bailment if the loss
occurred after the termination of that bailment.
State v. Keith Burke, No. 03-606 (June 30, 2005)
The defendant appeals from a Superior Court
order denying his motion to reduce his five-year sentence for felony
witness intimidation with a fifteen-year enhancement penalty as a
habitual offender. The Supreme Court affirmed the hearing
justice's order, holding that the defendant's sentence was not grossly
disproportionate. The defendant received the maximum
sentence for witness intimidation and fifteen of a possible twenty-five
years under the habitual offender statute. The Supreme Court
agreed with the trial justice that the defendant's criminal career
justified the enhanced penalty.
Terence M. Fracassa v. M. Priscilla Doris et al, No. 03-608 (June
30, 2005)
This is the
second appeal to come before the Supreme Court in this matter. In
2003, the plaintiff appealed from a judgment in the defendants' favor,
denying his claim for specific performance of a purchase and sales
See Fracassa v.
Doris, 814 A.2d 358 (R.I. 2003). This Court vacated the
judgment and remanded the case for additional findings of fact relative
to events occurring after the scheduled closing date. On remand,
the trial justice granted specific performance to the plaintiff.
The defendants appealed this judgment, arguing that the trial justice
did not exercise his independent judgment but, instead, read "between
the lines" of the Supreme Court's opinion and interpreted it as a
directive to reconsider his decision.
The Supreme Court
held that the trial justice did not abuse his discretion by ordering
specific performance of the agreement or by altering the terms of the
original agreement. The Court concluded that the trial justice's
findings that the parties agreed to a new closing date and that the
plaintiff was ready, willing, and able to close on that date were
supported by the record. Further, the trial justice did not abuse
his discretion by finding that the plaintiff waived certain conditions
that were intended for his benefit. The judgment is affirmed.
re Amber P. et al, No. 03-399 (June 28, 2005)
The respondent-father, William A. Pandolfi,
appealed from a Family Court decree terminating his parental rights to
his daughters Amber and Angelica. To support his appeal, the
respondent alleged that the trial justice improperly considered the
respondent's conviction for rape of a fourteen-year-old girl in New
Hampshire because the Supreme Court of that state had remanded his case
to the trial court at the time the hearings on the state's termination
petition began. The respondent also alleged that the trial justice
improperly focused on the fact of his conviction in granting the state's
termination petition and erred in finding that the state had undertaken
reasonable efforts to encourage and strengthen the parental
relationship. The respondent also maintained that he was denied
adequate assistance of counsel, and, finally, that the trial justice
improperly admitted the testimony of the state's expert witness.
The Supreme Court affirmed the decree terminating the respondent's
parental rights. The Court found that although the respondent's
conviction had been remanded at the time of the Family Court's hearings
on the termination petition, the conviction never was vacated or
overturned. Thus, the Court deemed that the trial justice was not
wrong to consider the conviction, the facts underlying the conviction,
and the respondent's failure to undergo sexual offender counseling as
ordered. The Court also held that the trial justice did not rely
solely on Pandolfi's conviction, noting that the trial justice's
decision was supported amply by the testimony adduced at trial, and
especially in light of the duration of the respondent's sentence.
Additionally, in view of the unique facts of the case, the Court saw no
error in the trial justice's finding that the state had undertaken
reasonable efforts to reunite the respondent with the children.
Finally, the Court rejected respondent's latter points of appeal,
holding that the respondent had knowingly waived counsel in the
proceedings below, and had failed to object to the expert witness's
qualifications before the trial justice.
State v. Mariano Jimenez
No. 2003-640-C.A. ( June 24, 2005)
The Superior
Court did not abuse its discretion in allowing questioning concerning
defendant's experience and familiarity with the specific gun that he
used to kill his victim because defendant opened the door to such
questioning when he testified that the killing was directly attributable
to the malfunctioning of that gun. The trial justice properly refused to
instruct the jury on the lesser-included offense of diminished-capacity
manslaughter because defendant failed to produce sufficient evidence
required to warrant such an instruction.
State ex rel. Town of Westerly v. Charles M. Bradley, No. 04-197
(June 21, 2005)
The defendant
appeals from a Superior Court judgment of conviction for violating a
Westerly town ordinance prohibiting swimming in the Weekapaug Breachway.
The defendant challenges the validity of the ordinance as violating the
Rhode Island Constitution and the Constitution of the United States.
The Supreme Court held that: (1) the ordinance is not void for
vagueness, in light of a related town ordinance that further defines the
scope of the prohibition and the town's proffered limiting construction;
and (2) the ordinance is a valid exercise of the town's police power and
does not violate the public trust doctrine. The judgment is
John F. McBurney v. Armand A. Teixeira, No. 00-283 (June 15, 2005)
The plaintiff
sued the defendant alleging intentional interference with a contractual
relationship, and the defendant moved for summary judgment, maintaining
that the plaintiff's suit was barred by the applicable ten-year statute
of limitations. In the alternative, the defendant argued that a
settlement agreement and release between the plaintiff and an associate
of the defendant, whom the plaintiff had sued earlier, absolved the
defendant from any potential liability. Citing an appeal in a
companion case in which the authenticity of the settlement agreement was
in issue, the motion justice granted the defendant's motion on statute
of limitations grounds only. The plaintiff appealed, and the
matter was consolidated for argument with McBurney v. Roszkowski,
No. 99-496-A. (R.I., filed June 15, 2005). In light of its holding
in that companion case, in which the Court affirmed a Superior Court
finding that the settlement was valid, the Court affirmed the motion
justice's granting of the defendant's motion for summary judgment,
holding that the broad and unambiguous language of the settlement
agreement evinced a clear intent to release the defendant from liability
for the misconduct alleged in the plaintiff's complaint.
Accordingly, it was not necessary for the Court to consider whether the
plaintiff's suit was barred by the statute of limitations.
John B. Newman et al v. Valleywood Associates, Inc., No. 02-674
(June 15, 2005)
In this case discussing the interplay between
the Rhode Island Mechanics' Lien Law, G.L. 1956 chapter 28 of title 34,
and The Arbitration Act, G.L. 1956 chapter 3 of title 10, a Superior
Court motion justice determined that the defendant's motion to arbitrate
a contractual dispute would be granted only if the defendant released
its mechanic's lien on the subject real property within two weeks.
This Court read the two statutes in pari materia and held that a
party does not waive its right to arbitrate a contractual dispute, as a
matter of law, by filing a notice of intention to claim a mechanic's
John F. McBurney v. Joseph J.
Roszkowski, No. 99-496 (June 15, 2005)
The plaintiff
sued the defendant, alleging the latter's intentional interference with
a contractual relationship between the plaintiff and a client.
Shortly after the beginning of trial, the parties entered into a
settlement agreement and judgment stipulation. After reviewing the
form of the judgment stipulation, however, the plaintiff sought to
correct the record under Rule 60(b) of the Superior Court Rules of Civil
Procedure, arguing that he had not authorized his attorney to stipulate
to a judgment for the defendant. At that time, the plaintiff also
alleged that his signature had been forged onto the settlement and
release agreement. A justice of the Superior Court denied the
motion, and the plaintiff appealed. Before considering the
plaintiff's appeal, the Supreme Court remanded the case to the Superior
Court for findings of fact regarding the authenticity of the signatures
on the settlement agreement and the authority of the plaintiff's counsel
to enter the stipulation in question. Pursuant to that mandate, a
justice of the Superior Court subsequently found that the plaintiff's
counsel had, at a minimum, the implied authority to enter the judgment
stipulation at issue, and that the signatures on the settlement
agreement were authentic. The Court affirmed, holding that because
the plaintiff's attorney was authorized to settle the case by the
client, she was authorized to take such steps legal, proper, and
necessary to carry out the client's wishes. In the absence of
evidence that the plaintiff specifically had instructed his counsel not
to enter into the stipulation at issue, the Court held that the
plaintiff's counsel possessed the authority to resolve the matter.
Turning to the authenticity of the signature on the settlement
agreement, the Court discerned no basis to second-guess the lower
court's assessment of the relevant expert testimony presented on remand.
Accordingly, the Court affirmed the Superior Court's denial of the
plaintiff's motion under Rule 60(b).
Maria L. DeCamp v. Dollar Tree Stores, Inc., et al, No. 04-31 (June
14, 2005)
The plaintiff,
Maria L. DeCamp (plaintiff), appealed from the entry of summary judgment
in favor of the defendants, Dollar Tree Stores, Inc., and the
plaintiff's supervisor, Kenneth Braz (collectively defendants), which
dismissed the plaintiff's suit alleging employment discrimination based
upon her sex and her disability. On the claim of sex
discrimination, the Court held that the plaintiff had established both a
prima facie case of her gender-based disparate treatment claim and a
genuine issue of material fact concerning each element of her
gender-based hostile work environment claim. On the claim of
disability discrimination, the Court held that the plaintiff failed to
establish a prima facie case of disability discrimination.
Accordingly, the Court affirmed the grant of summary judgment in favor
of the defendants on the count of disability discrimination, reversed
the grant of summary judgment in favor of the defendants on the count of
sex discrimination, and remanded the case for further proceedings,
pertaining to the plaintiff's gender-based disparate treatment claim and
gender-based hostile work environment claim.
Gerald Kaveny et al v. Town of Cumberland Zoning Board of Review,
No. 03-318 (June 13, 2005)
Various abutting
landowners appealed the decision of the Zoning Board of Review of the
Town of Cumberland approving developer Highland Hills's application for
a comprehensive permit pursuant to the Rhode Island Low and Moderate
Income Housing Act (act), G.L. 1956 chapter 53 title 45, allowing
Highland Hills to build 160 units for persons over fifty-five years-old,
of which, twenty percent would be reserved for low and moderate income
buyers. This Court vacated the board's decision because the board
failed to make any findings of fact supporting its decision to permit
160 units, as opposed to the originally proposed 343 units. The
Court further concluded that the act was not constitutionally invalid
under due process, equal protection, or nondelegation grounds. The
Court declined to consider abutters' challenge to the State Housing
Appeals Board's implementing regulations because the abutters made no
claim that the challenged provision was involved in board's decision.
Keven A. McKenna P.C. et al v. Frank Williams et al, No. 05-144
(June 6, 2005)
State v. Jeffrey Dustin, No. 04-303 (June 6, 2005)
The defendant,
Jeffrey Dustin (defendant), appealed from convictions for possession of
cocaine and possession of marijuana handed down after he stipulated to
the evidence on record and waived his right to a jury trial. He
claimed the hearing justice erred in denying his pretrial motion to
suppress the evidence on the grounds that the search that revealed the
narcotics was not incident to a lawful arrest. As a preliminary
matter, the Supreme Court held that the issue had not been waived when
defendant stipulated to the facts of the case rather than going on with
a full adversarial proceeding. Notwithstanding, his convictions
are affirmed because the police officers had the reasonable suspicion
necessary to search the defendant and, thus, his constitutional rights
were not violated.
Pamela A. Westlake v. Robert L. Westlake, No. 04-43 (June 3, 2005)
In this appeal
from a post-final-judgment Family Court placement decision in favor of
the plaintiff mother, the defendant father argued that the trial justice
erroneously denied his motion to modify placement of the parties' two
minor children. Soon after the plaintiff mother moved with the
children from the area where the family resided before the divorce to a
more distant part of
Rhode Island, the defendant moved for and was denied physical
placement of the minor children. On appeal, the defendant asserted
that the trial justice failed to consider the best interests of the
children when making his decision and that instead, the trial justice
took into consideration that which was best for the plaintiff mother.
After determining that the trial justice had not abused his discretion,
had conducted the appropriate analysis, and had taken into consideration
the best interests of the children, the Court denied the defendant's
Robert T. Kells v. Town of Lincoln, et al, No. 04-239 (June 3, 2005)
In this case, the
defendants, the Town of
Lincoln, by and through its finance director, Stephen Woerner,
and current town administrator, Sue P. Sheppard, appealed from a
Superior Court summary judgment enjoining them from removing the
plaintiff, Robert T. Kells, from his position as chief of police.
The defendants also appealed the Superior Court's granting of attorney's
fees to the plaintiff. The Court affirmed the hearing justice's
determinations, holding that Kells, through both his contract with the
town and the provisions of the town charter, was entitled to the
protections afforded by the town charter. The Court ruled that the
chief of police, despite his indefinite tenure, could be removed only
for cause, and after a specification of charges, notice of a hearing,
and an opportunity to be heard before the town council. The Court
further held that because Kells's contract was both valid and
enforceable, the defendants' failure to adhere to it constituted a
breach of contract. As such, and because there was a complete
absence of a justiciable issue of either law or fact raised by the
defendants, attorney's fees were warranted.
Cheryl Pierce,
Individually and Cheryl Pierce, p.p.a. as Parent and Next of Friend of
John T. Pierce, a minor v. Rhode Island Hospital, d/b/a Hasbro
Children's Hospital et al, No. 04-0374 (June 2, 2005)
Two-and-a-half-year-old John T. Pierce, son of Cheryl Pierce (the
plaintiff), was permanently scarred after physicians at
Rhode Island
Hospital removed a cast from his left leg. After arbitration and
award in plaintiff's favor, the arbitrator amended the award to reflect
the proper statutory interest for medical malpractice. The
plaintiff appealed the Superior Court's confirmation of the amended
award. This Court affirmed, holding that the arbitrator's initial
award was a clear case of "material miscalculation of figures," and, as
such, amendment was proper. The Court rejected the plaintiff's
contention that the arbitrator's denial of her claim for loss of
consortium was "manifest disregard of the law" because she failed to
submit any supporting evidence.
Thomas Noel O'Sullivan, individually, as exector of the estate of Julia
Mary Walsh O;Sullivan, and as natural parent and next friend of Kieran
O'Sullivan, Clodagh O'Sullivan and Aoife O'Sullivan, minors, No.
03-70 (May 26, 2005)
The plaintiff
filed a wrongful death action against the defendant hospital and certain
doctors arising out of the death of the plaintiff's wife at Rhode Island
Hospital, which occurred after she had been treated unsuccessfully at
Newport Hospital. The plaintiff claimed that he did not discover
that these defendants were potential tortfeasors until he received his
wife's medical records several months after her death. The
plaintiff appealed the Superior Court's grant of summary judgment in
favor of the defendants. The Superior Court ruled that the plaintiff's
wrongful death action against the defendants was time barred pursuant to
the three-year statute of limitations period set forth in Rhode Island's
wrongful death statute.
The Supreme Court
reversed and remanded the case for trial, holding that the plaintiff's
complaint was timely filed. The Supreme Court determined that the
death of an individual does not trigger the running of the statute of
limitations in all wrongful death cases. Instead, when a death is
caused by any wrongful act, neglect or default which is not known at the
time of death, the statute is tolled until the wrongful act, neglect or
default is discovered or, in the exercise of reasonable diligence,
should have been discovered. The Supreme Court held that because
the plaintiff's wife's illness became progressively worse during the
days when she was seeking treatment at Newport Hospital, the defendants
were understandably not known to the plaintiff as being potential
tortfeasors at the moment of her death. Therefore, the statute of
limitations is tolled until the date the plaintiff received his wife's
medical records.
State v. Danilo Disla, No. 03-74 (May 26, 2005)
The defendant was convicted of one count of
delivering a controlled substance and one count of conspiring to violate
the Rhode Island Controlled Substances Act, G.L. 1956 chapter 28 of
title 21, by agreeing to deliver a controlled substance. On
appeal, he contended that the evidence presented by the prosecution at
trial was legally insufficient to support his conviction of conspiracy
to deliver heroin, and thus the trial justice erred by denying his
motion for judgment of acquittal. The state agreed and conceded
that it presented insufficient evidence at trial to support the
defendant's conviction of conspiracy. Notwithstanding the state's
confession of error, the Supreme Court conducted its own examination of
the record, and concluded that the evidence was indeed insufficient to
support the conspiracy conviction. The Supreme Court therefore
vacated the Superior Court judgment with respect to this count.
Secondly, the defendant argued on appeal that
the trial justice erred in failing to pass the case on two occasions
during the trial: once, after a witness for the prosecution testified
that the alleged coconspirator was a known narcotics user; and, again,
after the same witness testified that two days before the alleged drug
transaction, he had taken a photograph of the defendant at the same
location. The Supreme Court held that in both instances the trial
justice had given appropriate cautionary instructions that were more
than adequate to cure any possible prejudice that might inure to the
defendant as a result of the testimony. Accordingly, the Superior
Court judgment was affirmed as to the delivery charge.
Arnold Road Realty Associates, LLC, et al v. The Tiogue Fire District,
No. 03-615 (May 24, 2005)
The plaintiffs, Arnold Road Realty Associates,
LLC (Arnold Road) and A. Cardi Realty Company, Inc. (Cardi Realty),
appealed from a Superior Court judgment in favor of the defendant, the
Tiogue Fire District, on their slander-of-title allegations. The basis
of the alleged slander was both the recording of, and the failure to
remove, a tax collector's deed to property that Arnold Road formerly
owned in Coventry, Rhode Island. The trial justice found that, although
someone other than the true owner was given notice of the tax sale and
the resulting deed, Arnold Road failed to prove the requisite element of
malice necessary to support its slander-of-title claims. Thereupon,
Arnold Road sought to amend its complaint by adding Cardi Realty as a
party plaintiff, and by adding counts for declaratory judgment and to
quiet title. The trial justice found that his earlier decision on
the slander-of-title claims was dispositive of the additional claims,
and granted the plaintiff's motion to amend and summarily entered
judgment for the plaintiffs on the declaratory-judgment and quiet-title
On appeal, Arnold Road argued that the trial
justice overlooked and misconceived the evidence in finding that the
Tiogue Fire District did not act with the requisite malice necessary to
support the slander-of-title counts. In its cross-appeal from the
judgment in favor of Arnold Road and Cardi Realty on the
declaratory-judgment and quiet-title counts, the Tiogue Fire District
argued that the addition of the declaratory-judgment and quiet-title
counts after the trial concluded, combined with the denial of an
opportunity to amend its answer, deprived it of its right to a full and
fair hearing on the merits of the additional counts.
The Supreme Court held that the record supported
the Superior Court justice's decision that the plaintiff failed to prove
that the defendant acted with malice in either recording or failing to
remove the tax collector's deed. Furthermore, the Supreme Court
held that the issue of the validity of the tax collector's deed was
tried with the implied consent of the parties and affirmed the judgment
in favor of the plaintiffs on the declaratory-judgment and quiet-title
counts. The Court did not examine the issue of the propriety of
adding Cardi Realty as a party plaintiff for the declaratory-judgment
and quiet-title counts, because Arnold Road had standing to bring the
quiet-title action and the addition of Cardi Realty did not change the
essential result, which was to void the tax deed and to quiet
title to the property.
State v. Israel Rivera, No. 04-164 (May 20, 2005)
On an appeal from a Superior Court judgment that
the defendant had violated the terms of his probation, the Court
determined whether the trial justice could properly consider testimony
regarding a witness's financial relationship to the defendant when
assessing credibility. Israel Rivera was presented as a violator
of his probation pursuant to Rule 32(f) of the Superior Court Rules of
Criminal Procedure. His girlfriend testified on his behalf, and
the trial justice posed questions from the bench about her financial
reliance on defendant. The defendant argued that the trial justice
improperly considered such information when assessing the witness's
credibility. Applying the rule that determinations of witness
credibility at probation-revocation hearings are made at the discretion
of the trial justice, and that such determinations will be overturned
only if they are found to be arbitrary or capricious, the Court found
that the consideration of the testimony was proper. The Court
reasoned that such testimony was relevant when considering the possible
bias of the witness, and, therefore, the judgment was affirmed.
Anthony J. Dellagrotta et al v. Cynthia A. Dellagrotta, No. 02-46
(May 19, 2005)
Both parties
appealed from a decision of the Superior Court in a nonjury case, in
which the court found that the plaintiffs were the rightful owners of
certain property, but the defendant was entitled to compensation for the
cost of improvements she made to the property and the house's
appreciation in value attributable to those improvements. In
addition, the defendant argued that the trial justice erred in granting
the plaintiffs an award of rent and attorney's fees on their trespass
and ejectment claim. The Supreme Court affirmed the decision of
the Superior Court that the defendant failed to prove the elements of
promissory estoppel or that a constructive trust should be imposed upon
the property for her benefit. The Court vacated the plaintiffs'
award of attorney's fees, holding that the Residential Landlord and
Tenant Act, G.L. 1956 chapter 18 of title 34, did not apply because
there was no rental agreement between the parties. An award of
rent was appropriate, the Court determined, to compensate the plaintiffs
for the defendant's possession of the house after receipt of notice that
she no longer was privileged to remain there. Finally, the Court
directed entry of a new judgment on the defendant's unjust enrichment
award because the benefit conferred upon the plaintiffs was the
increased value of the house only.
Azarig Kooloian v. Suburban Land Co. et al v. Azarig Kooloian, Jr.,
alias, No. 03-4 (May 18, 2005)
This appeal
arises from a buyer's claim of damages from the defendants for breach of
contract and fraud in the context of a purchase and sales agreement for
real estate. The defendants—the property's seller, the seller's
controlling shareholder, and a related corporation—appeal from a money
judgment. The Supreme Court concluded that the evidence supported
the trial justice's finding that the defendants breached the contract
and committed fraud. The buyer acquired the property at a
foreclosure sale at a higher price than the purchase price agreed to in
the purchase and sales agreement. The trial justice found that
because defendants acted in bad faith and committed fraud, the buyer was
entitled to damages compensating him for his loss of the bargain
negotiated in the purchase and sales agreement. The Supreme Court
affirmed the judgment.
Mary Seide v. State of Rhode Island et al, No. 03-521 (May 16, 2005)
The plaintiff sued the defendants, several
police officers and their governmental employers, to recover for
injuries suffered in an accident with the driver of a stolen vehicle who
was being pursued by the defendant police officers. The plaintiff
appealed from the Superior Court's grant of judgment as a matter of law,
and on appeal, the
Supreme Court vacated the judgment.
Specifically, the Court held that the Public Duty Doctrine did not grant
the defendants immunity because G.L. 1956 §
31‑12‑9 expressly waives
an officer's immunity from suit by providing that, when a police officer
pursues a person suspected of violating the law, the officer is not
protected "from the consequences of [his or her] reckless disregard of
the safety of others." Additionally, the Court concluded that
judgment as a matter of law was improperly granted on the issue of
proximate cause because the plaintiff produced evidence that reasonably
could lead a jury to conclude that the officers' decision to continue
the pursuit and their failure to terminate the chase earlier was in
reckless disregard for the safety of others. Also, the plaintiff
did not need to present expert testimony that the defendants breached a
duty of care owed to plaintiff
because the
jury was capable of
understanding the facts and drawing correct conclusions without the
assistance of an expert.
Finally, a police department's
pursuit policy,
adopted as official policy governing high-speed police pursuits, may
serve as a standard that the jury could compare with the defendants'
conduct in deciding whether the defendants breached the standard of care
owed to the plaintiff.
State of RI v. Horton,
No. 2002-401 (May 5, 2005)
The defendant appealed his 2001 conviction of
first-degree child molestation sexual assault for which he was sentenced
to twenty years, eight to serve, with the balance suspended with
probation. On appeal, the defendant advanced three points of error
as reasons for reversing his conviction. The defendant argued that
the trial justice committed reversible error when she overruled the
defense's objections to certain comments made by the prosecutor during
closing argument, that the trial justice erred in denying the
defendant's motion for a new trial based on the trial justice's weighing
of certain testimony, and that the trial justice erroneously admitted
into evidence pictures that had not been provided to the defendant
during discovery. The Court held that two comments the
prosecution made and that the defendant objected to failed to rise
beyond the level of harmless error, and as such, did not warrant
reversal. The Court also held that the trial justice followed the
appropriate procedure and, considering both the weight of the evidence
and the credibility of the witnesses, rightly denied the defendant's
motion for a new trial. Finally, the Court did not agree that
there was reversible error in the prosecution's discovery violation
because the defendant had the opportunity to view the videotape.
For these reasons, the Court denied the defendant's appeal and upheld
his conviction.
State of RI v. Sylvia,
No. 2004-152 (May 5, 2005)
The defendant, Terrence Sylvia, appealed from a
Superior Court judgment revoking four previously suspended sentences and
sentencing him to serve eight years at the Adult Correctional
Institutions for violating the terms of his probation. The
defendant argued on appeal that, notwithstanding the reduced burden of
proof required at a violation hearing, the evidence adduced against him
nevertheless was insufficient to show that he violated the terms of his
probation. Thus, he asserted, the hearing justice acted
arbitrarily and capriciously. The defendant also argued that the
hearing justice improperly relied upon the defendant's previous contacts
with the criminal justice system to buttress the state's proof.
The Supreme Court
reviewed the record and found the defendant's contentions to be without
merit. The Supreme Court was satisfied that the hearing justice
properly weighed and considered the evidence presented and found that
the testimony of the complaining witness identifying the defendant as
his assailant was credible. Moreover, the record disclosed that
the hearing justice considered the defendant's criminal history only
with respect to the issues of bail and sentencing, after he had revoked
the suspended sentences. The Supreme Court held that the trial
justice acted neither arbitrarily nor capriciously in considering the
evidence and in determining that, despite apparent inconsistencies,
there existed reasonably satisfactory evidence to support a finding that
the defendant had violated the conditions of his probation.
Euphemia Barr Gardner et al v. Wayne R. Baird, No. 04-237 (May 4,
In this appeal
arising from a grant of summary judgment in favor of the
defendant-property owner, the Supreme Court held that the motion justice
erred by finding that the plaintiffs could not prove that they had an
ownership interest in the defendant's property. The plaintiffs
sufficiently pleaded a claim for a prescriptive easement and
demonstrated that factual questions existed that may prove they are
entitled to a judgment in their favor. In addition, the Court held
that the plaintiffs who failed to pay the appellate filing fee were
properly before the Court on appeal.
I. Shane Olshansky et al v. Rehrig International et al, No. 04-184
(May 3, 2005)
The plaintiffs,
I. Shane and Myra Olshansky (plaintiffs), appealed from a summary
judgment in favor of the defendant, Rehrig International (defendant), on
the plaintiffs' claims of strict liability, negligence, breach of
implied warranty, and loss of consortium. The motion justice
determined that the plaintiffs were unable to prove their case based on
the evidence on the record, particularly since they did not plan to
retain an expert to explain what defect caused the basket of a shopping
cart to disengage from the wheels, thus causing Mr. Olshansky's alleged
injuries. This Court affirmed, holding that nothing on the record
established that this defendant was in any way negligent, that it
breached an implied warranty, or that a defect existed in the product
that caused Mr. Olshansky's injuries. The plaintiffs provided no
information to survive summary judgment.
The Elena Carcieri Trust-1988 et al v. Enterprise Rent-A-Car Company of
Rhode Island, No. 04-176 (May 3, 2005)
defendant-lessee appeals from a judgment of the Superior Court in favor
of the plaintiff-lessor in this commercial landlord-tenant case.
The defendant argues that it timely exercised its option to extend the
lease in accordance with its provisions, which required that notice of
the defendant's election to extend the term of the lease be given "not
later than three (3) months prior to expiration of the original term."
The Supreme Court
concluded that the trial justice did not err in finding the contract
ambiguous and affirmed the finding that the defendant failed to exercise
its option to extend by the July 31, 2002, deadline and became a
holdover tenant by remaining in possession of the property.
Although the lease provided that the parties would enter into a second
agreement stipulating the termination of the original term, the parties
never entered into that agreement. In the absence of an agreement
modifying the term of the lease, the parties are bound by provisions in
the original lease setting the lease term from November 1, 1997, to
October 31, 2002.
In re James C., No. 00-443 (May 2, 2005)
The Family Court did not err in admitting
hearsay evidence in the form of two repair estimates proffered by the
state during appellant's juvenile restitution hearing. The Family
Court's admission of the evidence in question did not violate the
juvenile's Fourteenth Amendment right to due process. When a
juvenile is ordered to pay restitution, he or she is entitled to a
hearing to determine the amount, however, this hearing may be conducted
in a relatively summary fashion during which adherence to the rules of
evidence is not required.
Loretta M. Scarborough v. Thomas E. Wright, No. 03-510 (May 2, 2005)
Summary judgment in favor of defendant on
statute of limitations grounds is affirmed based upon plaintiff's
failure to comply with Rule 56 of the Superior Court Rules of Civil
Procedure. In this case, the affidavit submitted by plaintiff in
opposition to defendant's motion for summary judgment was not valid
because it was not notarized, i.e. it was not taken before a person
having authority to administer such oath or affirmation.
State v. David L. Crow, No. 02-407 (April 29, 2005)
In this appeal by a defendant found guilty of
solicitation to commit murder and to commit arson, there was sufficient
evidence of the defendant's guilt beyond a reasonable doubt. The
trial justice did not overlook or misconceive material evidence, was not
clearly wrong, and articulated a sufficient rationale for denying the
defendant's motion for a new trial. The defendant's failure to
have properly objected to the jury instructions on criminal solicitation
constituted a waiver of that issue on appeal.
Brian Martin v. Matthew J. Marciano et al, No. 03-561 (April 27,
The plaintiff,
Brian Martin (plaintiff), was attacked while attending a high school
graduation party that the defendant-parent, Lee Martin (defendant),
hosted at her home in honor of her daughter, Jen Martin (Jen). The
evidence showed that the defendant may have provided alcohol to the
plaintiff and other underage guests at the party. The plaintiff
brought suit against: the defendant; party guest Matthew J.
Marciano; and the uninvited attacker, Chijoke Okere (Okere). A
Superior Court motion justice granted the defendant's motion for summary
judgment, concluding that the defendant owed the plaintiff no duty to
protect him from Okere's attack. The plaintiff appealed and the
Supreme Court reversed. As an adult provider of alcohol to the
underage plaintiff, the defendant was duty bound to exercise reasonable
care to protect him from criminal attack. Whether Okere's actions
constitute a supervening act breaking the causal link between the
defendant's conduct and the plaintiff's injuries is an unresolved
question of fact for the jury to consider.
Dawn Tedesco et al v. Richard F. Connors, in his capacity as Finance
Director and Purchasing Agent of the Town of Johnston et al, No.
03-469 (April 27, 2005)
The plaintiff, Dawn Tedesco, brought suit
against the defendant, Rhode Island Department of Transportation (DOT),
for injuries suffered in a bicycle accident after her tire slipped into
a parallel-bar sewer grate on Atwood Avenue. At the close of the
plaintiff's case, the defendant moved for a judgment as a matter of law
on two grounds: (1) that the public duty doctrine barred
plaintiff's case and the egregious conduct exception did not apply; and,
in the alternative, (2) that G.L. 1956 § 24-5-1(b), in allocating a duty
to the local municipalities to make roadways safe for bicycles, thereby
relieved the state of that same duty. The trial justice granted
the town's motion on the issue of the public duty doctrine and, thus,
never reached the statutory argument.
The Supreme Court reversed the ruling of the
trial justice and held that determination of the egregious conduct
exception is a mixed question of law and fact and, therefore, that a
trial justice must allow a jury to find the predicate or duty-triggering
facts, provided any exist, in making such a determination.
Furthermore, § 24-5-1(b) was of no help to the defendant because of the
DOT's own policy of replacing parallel-bar sewer grates on Rhode Island
Russell DePetrillo et al v. Norman Lepore a/k/a Lepore Farm, No.
04-122 (April 27, 2005)
The plaintiffs, Russell and Donna DePetrillo
(plaintiffs), asked this Court to declare a real estate purchase and
sale agreement specific enough for specific performance. The trial
justice denied specific performance, finding that the contract could not
be specifically performed because it was not sufficiently clear,
definite, certain, and complete as to its essential terms. The
plaintiffs appealed. Because there was significant doubt as to
precisely what parcel would constitute the seller's reserved lot, this
Court affirmed, holding that the trial justice did not abuse his
discretion in finding that the contract could not be specifically
Angelina M. Wellborn v. Spurwink/Rhode Island et al, No. 04-183
(April 25, 2005)
In this sex
discrimination case, the defendant, Spurwink/Rhode Island, appealed from
a Superior Court judgment in favor of the plaintiff, former employee
Angelina M. Wellborn, arguing that the trial justice should have granted
its Super.R.Civ.P. 50 motion for judgment as a matter of law, or in the
alternate, its Super.R.Civ.P. 59 motion for a new trial. Although
Wellborn alleged sex discrimination by Spurwink and two of her
supervisors, the trial court granted Rule 50 motions for judgment as a
matter of law relating to both supervisors, but denied the motion
relating to the defendant. The jury returned a verdict in
Wellborn's favor, finding that she had been the victim of adverse
employment action by Spurwink as a result of her pregnancy, and the
trial justice denied the defendant's subsequent Rule 59 motion for a new
trial. On appeal, the defendant argued that the trial justice
should have granted either its Rule 50 motion or its Rule 59 motion,
claiming that there was no evidence to show that Wellborn was the victim
of any adverse employment practice or discriminatory animus, or that
Wellborn had been constructively discharged from her job. The
Court denied the defendant's appeal, holding that the evidence was
sufficient for a jury to determine whether the plaintiff had met her
burden of proving that Spurwink's proffered justifications were pretexts
for discrimination.
Credit Union Central Falls v. Lawrence S. Groff, No. 04-196 (April
22, 2005)
Doris P. Riendeau
(Riendeau) appealed the denial of a motion to intervene in a Superior
Court civil action brought by Credit Union Central Falls (CUCF or
plaintiff) against attorney Lawrence P. Groff (Groff or defendant).
The Court reversed the judgment of the Superior Court, holding that
Riendeau was entitled to intervention of right because she claimed a
particularized interest in the specific funds attached in the underlying
action, and, but for intervention, that civil action might, as a
practical matter, have impaired or impeded her ability to protect her
interest. Riendeau's interest was not adequately represented by
Chief Disciplinary Counsel because she endeavored to go beyond merely
identifying her interest, and affirmatively sought to establish her
superior right to the attached funds in Groff's client account.
The Superior Court's supplemental order did not moot the appeal because,
although it did provide for notice and an opportunity for a hearing, the
supplemental order was not sufficiently specific in describing what
would take place at the hearing and, in any case, any such hearing could
prove meaningless without the opportunity for discovery before it was
State v. Neil Stierhoff, No. 04-117 (April 19, 2005)
The defendant was
convicted of misdemeanor stalking in violation of G.L. 1956 § 11-59-2
following a jury-waived trial in the Superior Court. On appeal,
the defendant alleged that the trial justice committed several errors of
law. The Supreme Court rejected the defendant's appeal, holding:
(1) the defendant waived his argument that the state had failed to
introduce competent medical evidence to prove that the complainant
sustained substantial emotional distress by failing to raise the issue
before the trial justice; (2) there was no indication that the trial
justice misconceived the evidence or was otherwise wrong in denying the
defendant's motion to dismiss where the evidence established that the
defendant was well aware that his advances toward the complainant were
unwanted and unwelcome; and (3) the defendant waived his argument that
the state's failure to disclose the content of the testimony of a
witness violated Rule 16 of the Superior Court Rules of Criminal
Procedure by failing to adequately object to the testimony on such
grounds before the trial justice. The Court also rejected the
defendant's argument that § 11-59-2, as applied to him, was
unconstitutionally vague, reasoning that the evidence presented by the
state unmistakably established that the defendant knew that the
complainant was bothered by his advances.
State v. Jacques Gautier, No. 04-165 (April 12, 2005)
The defendant,
while on probation for a previous conviction, was arrested in 1998 for
the murder of Jeffrey Indellicati. The state presented the
defendant as a violator, but a justice of the Superior Court determined
that the state had failed to present sufficient evidence that the
defendant had killed the victim. The state petitioned for
certiorari, and the Supreme Court quashed the judgment. State
v. Gautier, 774 A.2d 882 (R.I. 2001) (Gautier I). On
remand, the hearing justice deemed the defendant a violator, and the
state thereafter formally charged the defendant for the 1998 murder.
The defendant argued that the findings of fact made by the hearing
justice during his original probation-revocation hearing precluded the
state from prosecuting him for the murder, and moved to dismiss the
indictment. A Superior Court justice denied the defendant's
motion, and he sought review before the Supreme Court. In denying
the defendant's appeal, the Court revisited its holding in State v.
Chase, 588 A.2d 120 (R.I. 1991) and overruled it, holding, pursuant
to its decisions in State v. Godette, 751 A.2d 742 (R.I. 2000)
State v. Znosko, 755 A.2d 832 (R.I. 2000), that even if the hearing
justice had made additional findings on remand, those findings would in
no way preclude the state from prosecuting the defendant for the
misconduct underlying the alleged probation-violation.
Chase, insofar as it is inconsistent with the Court's decision, is
expressly overruled.
Pleasant Mangement, LLC v. Maria Carrasco et al, No. 03-470 (April
12, 2005)
The defendants,
Maria Carrasco (Carrasco) and her husband Jose Ortega (collectively
defendants), appealed from the denial of their motion to vacate a
default decree that foreclosed their right to redeem ownership of a
tenement house currently owned by the plaintiff, Pleasant Management,
LLC (plaintiff). In light of the violation of Article V, Rule 4.2
of the Supreme Court Rules of Professional Conduct committed by the
plaintiff's counsel, the Supreme Court held that the motion justice
committed in error of law in failing to consider whether that violation
constituted excusable neglect under G.L. 1956 § 9-21-2.
Accordingly, the Supreme Court vacated that decision and remanded the
case for such a determination.
State v. Michael B. Champion, No. 04-151 (April 11, 2005)
After a jury
convicted the defendant, Michael B. Champion (defendant), on one count
of simple assault against his former girlfriend, the defendant sought a
new trial on the grounds that the verdict was against the weight of the
evidence. Inexplicably, the motion for new trial, which counsel
alleges he filed fifteen days after the jury rendered its verdict, was
never received by the trial justice, the Superior Court clerk's office,
or the prosecutor. Once defense counsel was notified that no one
had received the motion, he filed a new motion along with an affidavit
stating that he had filed the original motion as required by Rule 33 of
the Superior Court Rules of Criminal Procedure.
At the subsequent
hearing on defendant's motion for new trial, the Superior Court justice
denied the defendant's motion on procedural grounds, concluding that,
notwithstanding defense counsel's affidavit, the record did not support
a finding that the motion had been timely filed. This Court
affirmed that decision after concluding that, even taking the
defendant's allegations about the timing of the initial motion as
true, the original motion for new trial was filed fifteen days after the
jury rendered its verdict and, thus, exceeded the ten days required by
Rule 33.
America Condominium Association, Inc., et al v. IDC, Inc. et al, No.
01-469 (April 8, 2005)
This case came
before the Supreme Court on defendants' petition for reargument of the
March 23, 2004 Opinion in America Condominium Association, Inc. v.
IDC, Inc., 844 A.2d 117 (R.I. 2004). The Supreme Court granted
the petition for reargument, limiting it to the title/ownership issue
raised in the petition and addressed by this Court in section VI of the
opinion. The Supreme Court reaffirmed its earlier holdings in
their entirety, but proceeded to clarify certain aspects of its earlier
The Court held
that the Rhode Island Condominium Act distinguishes between development
rights, reserved by the parties, and improvement rights, which may
persist even after the development rights expire. In addition, the
Supreme Court held that the creation of units in a condominium must
follow the statutory requirements set forth in G.L. 1956 chapter 36.1 of
title 34.
In addition, the
Supreme Court reiterated its conviction that the Rhode Island
Condominium Act places a strong emphasis on consumer protection.
Impulse Packaging Inc. v. Laureana S. Sicajan, No. 03-79 (March 31,
In this Workers' Compensation case, the Court
was called upon to determine whether the Appellate Division of the
Workers' Compensation Court properly dismissed the employee petitioner's
appeal when it found that her reasons of appeal lacked the specificity
required by statute and the Workers' Compensation Court Rules of
Practice and Procedure. On appeal from a trial court decision in
favor of the respondent employer, Impulse Packaging, the petitioner
employee submitted to the Appellate Division documents consisting of a
brief reasons of appeal, stapled to which was an eight-page supplemental
memorandum. The Appellate Division denied and dismissed the appeal
for failure to adhere to the specificity requirements of G.L. 1956 §
28-35-28. The Court granted the petitioner's petition for writ of
certiorari and held that although the Appellate Division was within its
discretion in this case to reject the reasons of appeal in the form
presented to it, justice requires a result less drastic than summary
dismissal. As a result, the Court quashed the final decree of the
Appellate Division and remanded for further proceedings consistent with
its opinion.
Jacksonbay Builders, Inc. v. Farhad Azarmi et al, No. 04-255 (March
24, 2005)
The defendant appealed
pro se from a Superior Court judgment confirming an
arbitration award in favor of the plaintiff, Jacksonbay Builders, Inc.,
for $14,163, plus interest. Arguing that he did not know about a
twenty-day limit to reject the arbitration award, the plaintiff argued
that it should not have ripened into a judgment.
The Supreme Court held that it would have been within the discretion of
the trial justice to enlarge the defendant's time to reject the award.
However, the Supreme Court also held that the defendant failed to show
excusable neglect according to Rule 6(b) of the Superior Court Rules of
Civil Procedure and that, therefore, the trial justice did not abuse his
discretion when he refused to grant an enlargement of time. In
addition, the Supreme Court did not disturb the award of prejudgment
interest in favor of the plaintiff.
Accordingly, the
judgment of the Superior Court is affirmed.
John F. McBurney v. The GM Card, No. 04-19 (March 24, 2005)
The plaintiff
appealed from an order entered in the Superior Court in favor of the
defendant staying his claim of libel per se and compelling arbitration
in accordance with the terms of the parties' credit card agreement.
He argued that because his complaint included a claim for punitive
damages, a preliminary evidentiary hearing in Superior Court pursuant to
Palmisano v. Toth, 624 A.2d 314 (R.I. 1993) was required and
arbitration was not the proper forum. The motion justice
considered the credit card agreement between the parties, and opined
that it contained a broad arbitration clause that encompassed all
claims, disputes, or controversies arising from, or relating to, the
parties' agreement. Declining to dismiss the complaint, the motion
justice stayed the action and ordered the parties to submit the matter
to arbitration consistent with the terms of the credit card agreement.
On appeal, the
plaintiff argued that the motion justice erred by staying the action and
compelling arbitration. The defendant, on the other hand,
maintained that the arbitration clause between the parties was valid and
enforceable, and that to hold otherwise would contravene state and
federal statutes and run counter to strong public policy favoring
The Supreme Court
held that
substantive law applied in this case and that the arbitration agreement
was valid and enforceable. In addition, the Supreme Court
underscored that punitive damages generally may be awarded through
arbitration without the need for an evidentiary hearing in this case.
Accordingly, the
order of the Superior Court is affirmed.
State v. Warren Harris, No. 02-253 (March 17, 2005)
The defendant
waived any right he may arguably have had under the Confrontation Clause
as construed by the United States Supreme Court in Crawford v.
Washington, because he chose to offer the hearsay statement at issue
during his cross-examination of prosecution witnesses. In
addition, the Court affirmed the trial court's conclusion as to the
sufficiency of the evidence.
In the Matter of Eileen G. Cooney, No. 05-68 (March 16, 2005)
State v. Idalio Fernandes Santos, No. 01-516 (March 16, 2005)
An individual who
was convicted of sexual assault before July 1, 1992, but who is released
after that date, is not required to register as a sexual offender
pursuant to § 11-37-16 or § 11-37.1-18.
Pawtucket Fraternal Order of Police Lodge #4 v. City of Pawtucket,
No. 04-154 (March 16, 2005)
The plaintiff,
the Pawtucket Fraternal Order of Police Lodge #4 (union), filed a
grievance with the defendant, the City of Pawtucket (city), because the
city had changed its method of computing the cost to purchase service
credits to a method the union alleged was contrary to the parties'
Collective Bargaining Agreement (CBA). After its grievance was
rejected, the union filed a demand for arbitration; the arbitrator found
in favor of the city. The union then filed a petition to vacate
the arbitrator's award in the Superior Court that was duly granted.
The city appealed to the Supreme Court.
This Court held
that the hearing justice erred in two respects when he vacated the
arbitrator's award. First, the hearing justice misunderstood the
parties' positions and erroneously found that the union and the city
agreed that the provision in question was ambiguous. The city
never made such a concession. Regardless of the parties'
positions, it was passably plausible for the arbitrator to find that the
language was unambiguous. Second, the hearing justice erred in
substituting his own judgment for the arbitrator's in concluding that
the revised method used by the city in calculating the cost of service
credits was contrary to the CBA. The arbitrator's award drew its
essence from the CBA, was passably plausible, reached a rational result
and thus the hearing justice erred in vacating that award.
Kathleen Murray v. Peter McWalters, in his capacity as Commissioner of
the Rhode Island Department of Elementary and Secondary Education,
No. 04-107 (March 16, 2005)
After her employer, the Rhode Island Department
of Elementary and Secondary Education (RIDE), declined to implement
recommended merit increases for two consecutive salary years, the
plaintiff, Kathleen Murray (Murray), brought an action in Superior
Court. Murray alleged that RIDE's personnel regulation pertaining
to salary increases was invalid as contrary to state law, and that RIDE
had used the illegal regulation to deprive her of recommended salary
Murray appealed from the motion justice's grant
of summary judgment in favor of RIDE and the other named defendants,
including Peter McWalters, in his capacity as Commissioner of Elementary
and Secondary Education and the Rhode Island Board of Regents for
Elementary and Secondary Education (collectively defendants). The
Supreme Court affirmed, concluding that the trial justice did not err in
granting defendants' motion for summary judgment because the regulation
in question was a valid interpretation of a statute committed to the
Board's administration and because Murray had not been deprived of any
Morris Maglioli et al v. J.P. Noonan Transporation, Inc. et al, Nelson
Ferreira et al v. J.P. Noonan Transporation, Inc. et al, No. 04-136
(March 16, 2005)
The plaintiffs
brought suit for injuries suffered in a collision with a tractor-trailer
against the defendants, the driver and the owner of the tractor-trailer.
After the jury returned a verdict for the defendants, the trial justice
granted the plaintiffs' motion for a new trial, finding error in the
court's instructions to the jury. The defendants appealed.
Although the Supreme Court agreed with the trial justice that it was
error to give the rear-end collision instruction when the
tractor-trailer had been struck from the side, the Court concluded that
this error was harmless. Also, the Supreme Court held that the
sudden emergency instruction was warranted because the tractor-trailer
driver observed a vehicle spinning ahead on the road and had only
seconds to respond. The order of the Superior Court granting a new
trial was vacated.
Silvestro Gliottone v. Jeff Ethier et al, No. 04-162 (March 14,
The plaintiff sued the defendant for personal and property damages
stemming from a motor vehicle accident in October 1999. The
defendant moved for summary judgment before a justice of the Superior
Court, which held a hearing on the defendant's motion on the same day
that the defendant served notice of that motion on the plaintiff.
The Superior Court granted the defendant's motion. On appeal, the
Supreme Court vacated the judgment, holding that: (1) the plaintiff's
failure to object before the hearing justice resulted in a waiver of his
argument that the Superior Court's hearing of the defendant's motion
within the ten-day period specified in Rule 56(c) of the Superior Court
Rules of Civil Procedure constituted reversible error; and (2) the
accident scene photographs, which depict severe damages to both
vehicles, were sufficient to create a genuine issue of material fact
about whether the defendant was speeding at the time of the collision,
and therefore, whether the defendant may have been comparatively
negligent at the time of the accident.
Cynthia L. Guertin v. Arthur
R. Guertin, No. 03-377 (March 14, 2005)
defendant-father appealed from a Family Court order denying his post
final judgment motion to modify custody and/or placement for reason that
the trial justice improperly considered the results of a polygraph
examination. The defendant also appealed a provision in the order
enjoining his current wife from having any contact with the child's
The Supreme Court
held that the record supported the Family Court justice's decision that
the defendant failed to prove a sufficient change of circumstances from
those that existed when the Family Court entered the divorce decree and
affirmed the denial of the defendant's motion to modify placement and/or
custody. The Supreme Court held that the Family Court lacked
jurisdiction over the defendant's current wife and reversed and vacated
the provision enjoining her from being involved in the child's
pharmacological needs.
Edward J. Plunkett v. State of Rhode Island, No. 03-473 (March 10,
The petitioner, State of Rhode Island, sought review by
writ of certiorari of an order of the Superior Court denying its motion
for summary judgment. The petitioner contended that the doctrine
of res judicata barred the respondent from challenging his termination
on the grounds of age and disability discrimination because the
respondent had the opportunity to litigate those issues in a previous
action. In the respondent's original lawsuit, he was denied
injunctive relief from his termination from state employment because he
was an at-will employee. The respondent argued that he could not
have raised the age and disability discrimination issues in his original
lawsuit because he had not been granted a right-to-sue letter from the
Rhode Island Commission for Human Rights, as required under G.L. 1956
§ 28‑5‑24.1.
The Supreme Court held that the respondent
was precluded from litigating the age and disability discrimination
claim because it arose out of the same transaction as the original
lawsuit. The respondent's lack of a right-to-sue letter did not
prevent the preclusive effect of the earlier judgment from reaching the
discrimination claims. The respondent never sought to amend his
original complaint to include a discrimination claim. The order of
the Superior Court is quashed, and the case is remanded for entry of
summary judgment in favor of the petitioner.
Blue Coast, Inc. v Suarez Corporation Industries, No. 03-455 (March
10, 2005)
The plaintiff, a wholesale jewelry manufacturer,
brought this breach of contract action against the defendant, a national
mail-order catalog retailer, after a dispute arose over the plaintiff's
compliance with order specifications in the manufacture of costume
jewelry for the defendant. The defendant counterclaimed for breach
of contract. A jury found in favor of the plaintiff in the sum of
$349,249.12 and for the defendant in the sum of $48,715 on its
counterclaim. The defendant appealed. The Supreme Court
affirmed, holding that: (1) the trial justice's decision to exclude the
testimony of an expert witness offered by the defendant was not an abuse
of discretion; (2) the trial justice's decision to exclude certain test
results offered by the defendant on the grounds that the results were
confusing and beyond the comprehension of the jury was not an abuse of
discretion; (3) the defendant waived its argument that the written
documents exchanged between the parties represented a complete
integration of the manufacturing agreement between them when it failed
to renew its motion for judgment as a matter of law at the close of the
evidence or after the jury verdict; and (4) the jury's award on the
defendant's breach of contract counterclaim did not lack a reasonable
basis in the evidence.
Sycamore Properties, LLC v. Tabriz Realty, LLC et al, No. 03-635
(March 8, 2005)
Alexandra L. Pollard v. Acer Group, A R.I. General Partnership, No.
03-34 (March 8, 2005)
ABAR Associates, a RIGP v. Emilio Luna, Jr., et al, No. 02-391
(March 8, 2005)
On March 8, 2005,
the Rhode Island Supreme Court decided the following three tax sale
Sycamore Property v. Tabriz Realty et al.is an appeal of a
grant of summary judgment in favor of the defendants. The
plaintiff asserted that the motion justice erred in finding that
taxpayers who failed to contest the validity of a tax sale for lack of
notice in the subsequent foreclosure proceeding could not seek to vacate
the foreclosure decree in an independent action. The plaintiff
asserted that the recent amendment to § 44‑9‑24, permitting a taxpayer
to institute a separate action to vacate a foreclosure decree for
"inadequacy of notice amounting to a denial of due process or for the
invalidity of a tax sale" applies to the facts of the case.
On appeal, the
Supreme Court reversed the judgment, concluding that the amendment to
§ 44‑9‑24 is ambiguous and, therefore, must be construed in favor of the
taxpayer. The amended language "inadequacy of notice amounting to
a denial of due process" could reasonably be interpreted to mean either
notice of the tax sale, notice of the foreclosure petition, or both and,
because the amendment specifically provides that "a separate action" may
be instituted "for the invalidity of the tax sale," the statute is
In ABAR
Associates v. Luna, ABAR Associates appealed from a Superior Court
order that vacated a final decree forever foreclosing and barring all
rights of redemption with respect to real estate that ABAR had purchased
at a tax auction sale. The order also permitted First Union
National Bank, an assignee of a mortgage on the property, to intervene,
file an answer to the foreclosure petition, and redeem the property.
First Union had failed to record its mortgage interest until after entry
of the final decree, and therefore had not received notice of the
foreclosure petition. The Supreme Court determined that the
Superior Court erred by allowing First Union to intervene, and thereby
challenged the validity of the foreclosure process, after entry of the
final decree. The order was therefore reversed and the final
decree reinstated.
In Pollard v.
Acer Group, the appellant's failure to have raised before the
Superior Court a due process argument as to the constitutionality of the
Rhode Island tax sale statute, G.L 1956 chapter 9 of title 44, precluded
her from raising the issue before this Court on appeal. The
judgment of the Superior Court was affirmed by this Court.
State v. Jerry T. Badessa et al, No. 04-180 (March 1, 2005)
After granting
the state's petition for writ of certiorari, the Court heard oral
arguments on the question of who meets the definition of "first
offender" for the purposes of the expungement statutes as codified at
G.L. 1956 §§ 12-1.3-1 through 12-1.3-3. After the hearing justice
expunged the records of respondents Jerry T. Badessa, David W. Brunetti,
and Brian L. Dexter, the state urged the Court to quash the expungement
orders because each of the respondents' criminal records contained
multiple convictions. In reply, the respondents argued that
multiple convictions do not render them ineligible for expungement.
After applying our maxims of statutory interpretation to the expungement
statutes, the Court determined that the respondents' interpretation of
the relevant statutes would lead to the absurd result of categorizing
anyone with a criminal record, regardless of its length or complexity,
as a first offender. Instead, the Court concluded that the
Legislature did not intend for the expungement statutes to apply to
individuals with multiple convictions. Therefore, the Court
quashed the orders expunging the respondents' convictions, and remanded
the record to the Superior Court.
Kerri D. Fossa v. Richard D. Fossa, No. 04-89 (February 25, 2005)
The plaintiff's
pro se appeal challenging changes of venue that have occurred
in this case is dismissed. The order the plaintiff appeals from
makes no reference to this venue issue. Pursuant to Article I,
Rule 3(c) of the Supreme Court Rules of Appellate Procedure, this Court
does not have appellate jurisdiction over the issue raised by the
State of Rhode Island, Department of Corrections v. Rhode Island
Brotherhood of Correctional Officers, No. 03-42 (February 25, 2005)
The State of Rhode Island, Department of
Corrections (DOC) terminated a correctional officer after concluding
that allegations of theft, possession of stolen items, and possession of
marijuana and cocaine were factually substantiated. The Rhode
Island Brotherhood of Correctional Officers (RIBCO) filed a grievance on
behalf of the officer, alleging that his dismissal violated the
collective bargaining agreement because it was without just cause.
An arbitrator found that the DOC lacked just cause to terminate the
officer and ordered reinstatement, with full back pay, benefits, and
statutory interest. The state filed a motion in Superior Court to
vacate the arbitration award and argued that the arbitrator's findings
were irrational, that the arbitrator exceeded his authority, and that
the arbitrator improperly substituted his judgment for that of the DOC
director. The union filed a countermotion to confirm the arbitrator's
award. The Superior Court justice ruled that the arbitrator's
findings were not irrational, and that the arbitrator did not substitute
his judgment for that of the DOC director with regard to an illegal
cable hookup. The Superior Court justice denied the state's motion to
vacate the arbitrator's award of back pay and benefits, and granted
RIBCO's motion to confirm the arbitrator's award of back pay and
benefits. The Superior Court justice further granted the state's
motion to vacate the arbitrator's award of prejudgment interest and
denied RIBCO's motion to confirm the arbitrator's award of prejudgment
The Supreme Court held that the arbitrator
reached an irrational result in concluding that the officer's removal
and possession of state property did not amount to theft. The
Supreme Court further held that because the charges of theft of state
property and wrongfully obtaining telecommunication service were
factually substantiated, the arbitrator impermissibly substituted his
judgment for that of the director in reversing the director's decision
to terminate the officer. The Supreme Court reversed the Superior
Court justice's orders and vacated the arbitrator's award.
Gem Plumbing & Heating Co., Inc. v. Robert V. Rossi, et al, No.
03-386 (February 22, 2005)
Gem Plumbing &
Heating Co., Inc. (Gem) appeals from a Superior Court judgment in favor
of the property owners, Robert V. Rossi and Linda A. Rossi (collectively
Rossis), declaring that the Mechanics' Lien Law violated the Due Process
Clauses of the Fourteenth Amendment to the United States Constitution
and Article 1, Section 2 of the Rhode Island Constitution.
Analyzing the amended version of the statute, this Court applies the
balancing test, which requires us to weigh (1) the "consideration of the
private interest that will be affected by the prejudgment measure"; (2)
"an examination of the risk of erroneous deprivation through the
procedures under attack and the probable value of additional or
alternative safeguards"; and (3) giving "principal attention to the
interest of the party seeking the prejudgment remedy, with, nonetheless,
due regard for any ancillary interest the government may have in
providing the procedure or forgoing the added burden of providing
greater protections."
Connecticut v. Doehr, 501 U.S. 1, 11 (1991).
Primarily because
of Gem's preexisting interest in the Rossis' property and the
availability of a prompt post-deprivation hearing pursuant to G.L. 1956
§ 34-28-17.1, we hold that the statute passes constitutional muster.
We accordingly vacate the judgment of the Superior Court.
F.C.C., Inc. v. Richard A. Reuter et al, No. 03-583 (February 22,
The plaintiff contractor appealed from a
Superior Court decision granting summary judgment in favor of the
defendant property owners. The plaintiff argued that the trial
court incorrectly ruled that the Rhode Island Mechanics' Lien Law, found
at G.L. 1956 chapter 28 of title 34, is unconstitutional.
Interpreting the recently amended mechanics' lien statute, the Court
referred to its opinion in Gem Plumbing & Heating Co. v. Rossi,
No.2003-386-A. (R.I., filed Feb. 22, 2005) and held that the mechanics'
lien statute does not violate the constitution. Therefore, the
Court sustained the plaintiff's appeal, and reversed the judgment of the
Superior Court. The Court remanded the case to the Superior Court
for further findings of fact relating to the defendants' claims
regarding the plaintiff's alleged failures to follow the mandatory
directives of the mechanics' lien statute.
State of Rhode Island, Department of Corrections v. Rhode Island
Brotherhood of Correctional Officers, No. 03-313 (February 17, 2005)
The Supreme Court vacated an order of the
Superior Court that confirmed an arbitration award, in which the
arbitrator declared a grievance arbitrable under the terms of a
collective bargaining agreement unrelated to the grievant. The
grievant, as a member of a state-employed correctional officer
bargaining unit, is not entitled to benefits under a collective
bargaining agreement that, by its terms, does not extend benefits to his
bargaining unit.
Connecticut Valley Homes of East Lyme, Inc. v. Raymond Bardsley, et
al, No. 03-513 (February 15, 2005)
In this appeal arising from a decision in a
jury-waived case seeking payment on a construction contract, the trial
justice erred by making rulings in a letter to counsel. After
entertaining a motion to reopen the evidence and permitting expert
testimony on the defendant's counterclaim, the trial justice further
erred by striking the counterclaim and declaring that the expert
testimony was an offer of proof.
David Cruz v. Wausau Insurance et al, No. 04-65 (February 8, 2005)
The Superior Court motion justice did not abuse his discretion in
denying plaintiff's petition for declaratory relief that sought a ruling
concerning the applicability of the doctrines of res judicata and
collateral estoppel to the issues involved in an arbitration proceeding.
Shirley Bergeron v. Joseph J. Roszkowski, et al, No. 03-26 (February
7, 2005)
The plaintiff
appeals from a Superior Court judgment dismissing her legal malpractice
action with prejudice for the plaintiff's failure to prosecute her
The Supreme Court
found that the trial justices did not abuse their discretion in ruling
that the plaintiff was not entitled to a further continuance and in
dismissing her case with prejudice for failure to prosecute. The
judgment of the Superior Court is, therefore, affirmed.
Adrian Bustamante v. Ashbel T. Wall, No. 04-4 (February 7, 2005)
The applicant was
convicted of first-degree murder and conspiracy to commit murder and
sentenced to life imprisonment without the possibility of parole.
In his motion for post-conviction relief, the pro se
applicant asserted a myriad of self-declared constitutional violations
that he believed warranted that his conviction and sentence be set
aside. First, the applicant alleged ineffective assistance of
counsel by both his trial counsel and appellate counsel. Second,
the applicant challenged the composition of both the grand jury and the
petit jury. Third, the applicant alleged that he was denied a fair
trial by the prosecutor's misconduct. Finally, the applicant
asserted that the trial justice violated his due process and equal
protection rights by denying the jury the right to determine what, if
any, aggravated enumerated circumstances were involved in accordance
with G.L. 1956 § 12-19.2-1 and G.L. 1956 § 11-23-2. The Supreme
Court found no merit to the applicant's claims and affirmed the judgment
denying him post-conviction relief.
Athanasia Koutroumanos v. Thomas Tzeremes, No. 03-267 (February 7,
defendant-husband appealed from a Family Court order that distributed
the marital estate and awarded alimony and counsel fees to the
plaintiff-wife. The defendant averred that the trial justice erred
in both calculating and assigning the marital estate, by failing to
address the tax ramifications associated with the defendant's need to
liquidate marital assets to pay the plaintiff her share of the equitable
distribution, and by failing to make the required findings of fact
necessary to sustain the award of alimony and counsel fees. In its
order, the Family Court awarded the liquidated proceeds of the parties'
investment account to the plaintiff, assigned a credit card debt to
defendant, and distributed all other marital assets equally. The
proceeds of the investment account previously had been paid to the
plaintiff as "partial equitable distribution." The Supreme Court
held that the Family Court erred by failing to credit the defendant with
one-half the value of the investment account. The Supreme Court
affirmed the order in all other respects.
Blue Cross & Blue Shield of Rhode Island v. Beverly E. Najarian,
Director of the Department of Administration, in her official capacity
as the Chief Purchasing Officer for the State of Rhode Island and
Providence Plantations et al, No. 04-361 (February 3, 2005)
In its search for
a health care insurance provider for 52,000 state employees, retirees
and dependants, the State of Rhode Island (State) accepted competitive
sealed bids from two companies, United Healthcare (United) and Blue
Cross and Blue Shield of Rhode Island (Blue Cross), for a three-year
contract to commence on January 1, 2005. After careful
consideration, the contract was tentatively awarded to United.
Citing several deficiencies in both the bid process and United's
proposal, Blue Cross filed a complaint in the Superior Court seeking an
injunction preventing the State from implementing the award and forcing
the State to resolicit bids.
Subsequent to a
hearing on preliminary injunction that was later consolidated with a
trial on the merits, the Superior Court justice issued a written opinion
granting Blue Cross's request, finding the State had committed six
"wrongful acts," in violation of the State Purchases Act, G.L. 1956
chapter 2 of title 37. Specifically, the trial justice found that
the State (1) modified its Request for Proposals (RFP) after bids were
submitted to protect United from a possible disadvantage after it had
submitted a "seemingly non-responsive bid" by offering a mature quote
from administrative fees when an immature quote was requested; (2)
modified the RFP after bids had been submitted to reward United for
offering to refund a portion of its administrative fees in lieu of
guaranteeing to return a percentage of the pharmacy rebates as requested
by the RFP; (3) modified the RFP after bids had been submitted to
correct for United's failure to submit two quotes that had been
requested for "illustrative" purposes only; (4) penalized Blue Cross
because it was unable to provide a quote requested in the RFP because
Blue Cross was subject to regulations by the Department of Business
Regulation and United was not; (5) permitted United to modify its bid
after "best and final" offers were submitted to remove a charge that had
been added since the original bids were submitted; and (6) contacted
United off the record, after "best and final" offers had been submitted,
to request the insurance company to provide an additional service, at no
additional cost, in an attempt to thwart an expected bid protest.
In light of our
holding in H.V. Collins Co. v. Tarro, 696 A.2d 298 (R.I. 1997),
the only question on appeal was whether the State committed a palpable
abuse of discretion in awarding the contract to United. The
Supreme Court held that, although the State's officials were
ill-prepared, their conduct did not rise to the level of palpable abuse
of discretion at any time. The trial justice erred by substituting
her own judgment for the awarding authority's, by failing to give the
awarding authority's decision the statutorily mandated presumption of
correctness, and by failing to consider the overall comprehensiveness of
the bidding process. Therefore, this Court vacated the injunction
issued in the Superior Court and reinstated the contract as awarded to
In the Matter of Mark C. Bonn, No. 05-4 (February 3, 2005)
The Supreme Court Disciplinary Board (board)
recommended that the respondent, Mark C. Bonn (respondent), be monitored
in his practice of law by a member of the bar for a twelve-month period
for failing to maintain a client account and converting client funds as
proscribed by the Supreme Court Rules of Professional Conduct. The
Court departed from the board's recommendation and concluded that
respondent should be publicly censured in addition to being monitored in
his practice for a period of twelve months.
Giacomo D. Catucci v. Alice M. Pacheco, alias d/b/a Wholesale
Countertops & Solid Surface, Inc. et al, No. 01-280 (February 2,
This appeal
arises from a claim for unpaid rent and utilities in the context of a
commercial lease that was tried before a jury in Superior Court.
At the close of the plaintiff's case, the trial justice sua
added new party defendants pursuant to Rule 15 of the Superior Court
Rules of Civil Procedure. On appeal, the Supreme Court vacated the
judgment against the new party defendants deeming it prejudicial to add
new parties without notice.
Alexis Doctor v. State of Rhode Island, No. 04-78 (January 31, 2005)
After being
convicted of murder, conspiracy, and assault with intent to commit
murder, Alexis Doctor filed an application seeking postconviction relief
in the Superior Court. The applicant advanced two arguments in
support of his application: First, he argued that his attorney's
deficient performance during his trial amounted to a violation of his
right to counsel as guaranteed by the Sixth and Fourteenth Amendments to
the United States Constitution. Secondly, he alleged that there
was new and previously undiscoverable evidence warranting a new trial.
The Superior Court denied the application and we affirmed, holding that
(1) defense counsel's failure to instruct the applicant on and to object
to the court's Fenner instruction did not amount to ineffective
assistance of counsel, (2) defense counsel's failure to pursue a line of
questioning at trial was not unreasonable, and (3) the applicant's new
evidence was not sufficient to require a new trial, because it was both
available at the time of his trial and not credible.
Mary D'Amico v. Johnston Partners et al, No. 04-3 (January 31, 2005)
The plaintiff
moved to substitute the defendant tortfeasor's liability insurance
carrier under G.L. 1956 § 27-2-2.4 approximately six years after the
completion of the defendant's Chapter 11 bankruptcy reorganization.
The Superior Court denied the motion on the grounds that § 27-2-2.4 did
not permit a claimant to join an insurer after the conclusion of the
bankruptcy proceeding. On appeal, the Court reversed, holding that
both the plain and unambiguous language of the statute and the tenets of
statutory interpretation did not allow it to attach such a condition to
§ 27-2-2.4. Accordingly, the Court concluded as a matter of law
that the motion justice should have granted the motion to substitute in
accordance with
Rhode Island
Edward Gucfa v. Brenda J. King et al, No. 03-624 (January 28, 2005)
The plaintiff
brought suit against the two defendants for injuries suffered while the
plaintiff was doing construction work on property jointly owned by the
defendants. The defendants filed a motion to dismiss for failure
to effectuate service within 120 days as required by Rule 4(l) of the
Superior Court Rules of Civil Procedure. At a hearing on the
motion, the plaintiff requested additional time to serve the defendants,
and the motion justice continued the motion. Nearly a year later,
a second motion justice found that the plaintiff's attempts to serve the
defendants in a timely manner were unreasonable, and he dismissed the
The Supreme Court
affirmed the dismissal of the action. The Supreme Court concurred
with the second motion justice that the plaintiff had failed to show
good cause why service had not been made within 120 days. The
Supreme Court also held that the law of the case doctrine did not apply.
The first motion justice had not ruled on the motion; rather, the motion
was continued. Further, the purported "ruling" of the first motion
justice never was reduced to writing and entered in the record.
Kerri Lucier et al v. Impact Recreation, Ltd. et al, No. 04-0011
(January 26, 2005)
The plaintiffs,
the parents of a young boy injured while skateboarding at a commercial
skate park, filed this premises liability action against the business
entity operating the skateboard facility, one of its principals, and the
business entity's landlord. The plaintiffs alleged that the
defendants failed to maintain the property in a safe condition, and that
the defendant-landlord failed to ensure that the commercial tenant was
not engaged in an activity that was inherently dangerous to the public
at large, and negligently permitted and maintained dangerous conditions
on the property. The plaintiffs also sued for loss of consortium.
The Superior Court granted the defendant-landlord's motion for summary
On appeal, the
Supreme Court affirmed the grant of summary judgment. The Court
reiterated that a commercial landlord is not liable for injuries that
the guest of a tenant suffers on the leased premises, unless the injury
results from the landlord's breach of a covenant to repair in the lease,
or from a latent defect known to the landlord but not known to the
tenant or guest, or because the landlord subsequently had assumed the
duty to repair. The Court concluded that the plaintiffs had not
shown any of the exceptions to the general rule that a commercial
landlord is not liable for injury to third persons on the leased
premises. In addition, the Supreme Court declined to recognize the
plaintiffs' theory of negligent entrustment of real estate as a means
for recovery.
George McCarthy et al v. Environmental Transportation Services, Inc.,
No. 03-376 (January 25, 2005)
The petitioners sought review by writ of
certiorari of a decree of the Appellate Division of the Workers'
Compensation Court (Appellate Division) denying a petition for review of
a benefits determination made by the respondent. This petition
called upon the Supreme Court to interpret the meaning of "excess
damages" as it is used in the formula set forth in G.L. 1956 § 28‑35‑58
for determining the number of weeks an injured employee's weekly
compensation benefits should be suspended to account for damages
recovered from a responsible third party. The Appellate Division
had concluded that the term "excess damages" was the gross amount of an
employee's tort recovery, after reimbursement of prejudgment weekly
compensation benefits.
The Supreme Court held that "excess damages,"
for purposes of § 28‑35‑58, means the amount remaining, if any, of
compensatory damages recovered from a responsible third party after
deductions for the reimbursement of pre-settlement or prejudgment
workers' compensation benefits and that portion of attorney's fees and
court costs attributable to the reimbursed amount. The Supreme
Court quashed the judgment and remanded the case for further
Maribel Oyola et al v. Carmen Burgos et al, No. 04-135 (January 21,
The plaintiffs,
personal injury claimants, appealed from the Superior Court's grant of
summary judgment on the issue of the defendant Avis Rent-A-Car's (Avis)
liability for injuries suffered from an accident in one of Avis's
vehicles. The Court affirmed, holding that the hearing justice did
not err in refusing to apply
New York
law, when the plaintiffs and driver all were
Rhode Island
residents, the road trip's origin and intended terminus were in Rhode
Island, and the accident's New York location was merely fortuitous.
Because the instant case presented a conflict only about which state's
law governed the relationship of the parties and not negligence, the
Court declined to apply its earlier conflict of laws doctrine that the
place of the injury was the most important factor in torts conflicts
cases. Accordingly, the Court held that the motion justice did not
err in granting defendant's motion for summary judgment.
In re Shawn B. et al, NO. 02-703 (January 21, 2005)
father-respondent, Thomas C. Johnson (respondent), appealed from a
Family Court decree terminating his rights to two sons, Shawn and
Brandon. The respondent alleged that the Family Court lacked
neutrality because a justice from that court instructed the Department
of Children, Youth and Families (DCYF) to file a petition to terminate
his rights when the children's legal guardians sought to adopt them.
In addition, the respondent asserted that he did not abandon his
children but that DCYF failed to arrange visitation since he was
imprisoned for murdering their mother. Finally, the respondent
argued that this matter should have been delayed until his appeals for
post-conviction relief were heard by the Supreme Court.
This Court held
that the Family Court was not prejudicial against the father-respondent
because the justice who ordered DCYF to file the termination petition
recused herself from the remaining proceedings. Additionally, by
ordering DCFY to file an involuntary termination petition, the Family
Court justice was protecting the respondent's right by guaranteeing him
representation by a court-appointed attorney. Concerning the
respondent's assertion that he did not abandon his children, this Court
found that DCYF did not have a duty to arrange for visitation and that
the respondent had abandoned his children long before DCYF became
involved. Finally, this Court found no indication that the
respondent had any petitions for post-conviction relief pending; even if
he had, that was no reason to delay this matter before the Family Court,
thus destroying the children's chances for adoption, after the
respondent has already potentially destroyed their lives by committing
such a heinous crime against their mother.
In re Raymond C. et al, No. 02-329 (January 21, 2005)
This is an appeal
from a decree terminating the parental rights of the respondent-parents
by a justice of the Family Court. The respondents alleged that the
Department of Children, Youth and Families (DCYF) failed to make
reasonable efforts to help reunify these parents with their four
children. The Supreme Court rejected the appeal, concluding, as
did the trial justice, that the mother's chronic mental illness was the
primary reason she was unfit to parent her children. Despite
significant mental health services, this problem remained largely
Although the
Supreme Court agrees with the trial justice that DCYF should have made
greater efforts toward reunification, until the mother's mental illness
was stabilized these efforts would be futile. With respect to the
respondent-father, the trial justice found, and the Supreme Court
agreed, that he never participated in a meaningful reunification plan
and was largely absent. The judgment is affirmed.
George F. Sanzi et al v. Taranath M. Shetty, M.D., et al v. Medical
Malpractice Joint Underwriting Association of R.I., No. 02-443
(January 20, 2005)
The defendant
physician and his professional services corporation appeal from a
Superior Court decision granting summary judgment in favor of the
third-party-defendant insurance provider, Medical Malpractice Joint
Underwriting Association of Rhode Island (JUA). After the
plaintiff family members of the deceased, Rebecca Caldarone, sued the
defendants, alleging that Dr. Shetty's sexual abuse and battery of
Caldarone led to her suicide and untimely death, JUA refused to defend
or indemnify Shetty or Shetty, Inc. Subsequently, the defendants
filed a third-party complaint against JUA, but their claims were denied
by the hearing justice, who found that JUA had no duty to defend or
indemnify the defendants for the claims alleged in the plaintiffs'
complaint and thus was entitled to judgment as a matter of law. On
appeal, the Court held that the allegations of sexual abuse do not fall
within the "professional services" coverage of Shetty's insurance policy
because Shetty's professional services were only remotely incidental to
the allegations, and that based on the inferred intent doctrine, the
policy's coverage of accidental occurrences did not encompass
intentional sexual molestation. In addition, the Court saw no
merit in the defendants' argument that a criminal-act exclusion found in
later policies implies criminal-act coverage in the policies at issue in
this appeal.
State v. Gina M. Loccisano, No. 03-361 (January 19, 2005)
The defendant,
Gina M. Loccisano (defendant), appeals from a conviction of one count of
larceny of a controlled substance issued after a bench trial. The
defendant alleges that the state failed to prove its case beyond a
reasonable doubt. Both the defendant and the state present
arguments based on an appeal from a motion to dismiss. Since no
such motion ever was made or filed during or after the trial, however,
this Court is not required to consider the merits of her appeal because
the defendant failed to preserve the issue. In any event, the
state presented sufficient evidence at trial to support the trial
justice's finding, beyond a reasonable doubt, that the defendant was
guilty of one count of larceny of a controlled substance.
Michelle Ritter v. Mantissa Investment Corporation et al, No. 02-584
(January 19, 2005)
After the parties
divorced, Michele Ritter (plaintiff) brought a separate suit against
Donald Ritter (defendant) alleging that the defendant conveyed 50
percent ownership of their home, known as the Nunnery, to the plaintiff
during the marriage and that the divorce did not affect that property
interest. A motion justice granted the defendant's summary
judgment motion on two grounds: (1) the doctrine of res judicata
barred litigation of the ownership of that real estate after the divorce
proceeding concluded in Family Court; and (2) the release provisions of
the agreement entered into between the plaintiff and the defendant
barred the plaintiff's claim. The Supreme Court reversed on both
grounds, holding that the defendant: (1) was not entitled to judgment
as a matter of law on the doctrine of res judicata; and (2) that a
genuine issue of material fact existed about whether the release
language barred the plaintiff's claim.
State v. Franklin D. Becote, No. 03-637 (January 18, 2005)
The defendant
appeals from a Superior Court judgment of conviction for one count of
breaking and entering a dwelling in violation of G.L. 1956 § 11‑8‑2 and
one count of conspiracy in violation of G.L. 1956 § 11‑1‑6. The
Supreme Court held that the trial justice did not abuse his discretion
by failing to grant a continuance when the defendant asked to dismiss
his appointed counsel. The defendant agreed to proceed to trial
and never asked to represent himself. The defendant's motion for a
new trial was denied without error.
State v. Keith Werner, No. 96-155 (January 12, 2005)
The defendant,
Keith Werner, appealed his convictions stemming from the August 1990
robbery of the West Warwick Credit Union. Werner's appeal to the
Court alleged violations of the Interstate Agreement on Detainers Act
(IADA), G.L. 1956 chapter 13 of title 13, and asserted a claim that the
trial justice committed reversible error when she instructed the jury
that an extrajudicial identification made by selecting a defendant's
photograph from a group of people is generally more reliable than an
identification made after the presentation of the defendant alone.
Although acknowledging that the Court had already ruled on the very same
issues in Werner's previous appeals to this Court on other criminal
convictions, Werner urged the Court to revisit its previous holdings.
The Court refused to reconsider its decisions on both the IADA and jury
instruction issues, citing both collateral estoppel and stare
decisis. Therefore, the Court denied the defendant's appeal
and remanded the papers to the Superior Court.
State v. Sythongsay Luanglath et al, No. 94-732 (January 10, 2005)
This case was first heard in the Superior Court
in 1993 when a jury convicted each of the defendants, Sythongsay and
Soukky Luanglath (collectively defendants), on one count of burglary and
three counts of robbery. The defendants appealed from the trial
justice's denial of their motion for new trial. We remanded the
case to the trial justice to make determinations about the reliability
of the testimony presented against the defendants. The trial
justice complied and the defendants yet again appealed to this Court.
On their second appeal, the defendants argued that their convictions
were against the weight of the evidence, that their rights were violated
when the trial proceeded with only eleven jurors, and that the trial
justice erred in denying their motion to pass after she failed to reveal
the deadlocked jury's numerical split, which inadvertently had been
disclosed to her in a note from the jury.
This Court affirmed the trial justice's denial
of the defendants' motions for new trial, finding that the evidence
supported the conviction, no newly discovered evidence required a new
trial, and defendants' due process had not been violated.
Furthermore, the defendants' rights to a jury of twelve were not
violated when one of the jurors was dismissed because the trial justice
obtained knowing, intelligent and voluntary waivers from both the
defendants before she dismissed the juror. Finally, this Court
reversed the trial justice's decision denying the defendants' motion to
pass the case. The trial justice erred by failing to disclose the
contents of the note sent by the jury because it contained a numerical
split. In light of this failure, and the fact that the jury was
split ten to one, this Court held that the supplemental instructions,
the "Allen
charge," issued to the jury were improper.
Therefore, the convictions against the
defendants were vacated and the case remanded to the Superior Court for
a new trial.
State v. David Higham, No. 2003-237 (December 23, 2004)
The defendant, David Higham, appeals from a
judgment of conviction for two counts of first-degree child molestation
sexual assault in violation of G.L. 1956 § 11‑37‑8.1 and
§ 11‑37‑8.2
entered in the Superior Court. The defendant was sentenced
to concurrent terms of forty years on each count, with twenty years to
serve at the Adult Correctional Institutions, and twenty years
suspended, with twenty years of probation.
In his appeal, Higham contended that the trial
justice erred in refusing to pass the case after a witness testified
that she had discussed the incidents of sexual assault with the victim
in counseling. The Supreme Court held, however, that the witness's
testimony did not constitute vouching for the credibility of the
complaining witness. In addition, after the testimony in question,
the trial justice gave a curative instruction to the jury that was
sufficient to offset the remark made by the witness. Defense counsel did
not object to this instruction and, therefore, the issue was not further
preserved for appellate review.
Furthermore, Higham argued on appeal that the
trial justice erred in denying his motion for a judgment of acquittal on
count 1, because the evidence was not sufficient to establish an act of
cunnilingus. The Supreme Court held that evidence of actual vaginal
penetration is not required to establish an act of cunnilingus.
The judgment of conviction was affirmed.
State V
Mostafa Ibrahim
Docket No: 02-0101
(December 23, 2004)
The defendant appealed from a judgment of
conviction for second-degree child molestation sexual assault in
violation of G. L. 1956 § 11‑37‑8.3 and § 11‑37‑8.4. The defendant
was sentenced to fifteen years, with three years to serve in prison.
On appeal, defendant contended that the trial
justice incorrectly applied the sentencing benchmarks. The Supreme
Court held that defendant was precluded from challenging the validity of
a sentence on direct appeal, and that he must first file a motion in
Superior Court pursuant to Rule 35 of the Superior Court Rules of
Criminal Procedure.
Next, defendant argued that the trial justice
presented the jury with erroneous instructions, denying him due process
and a fair trial. The Supreme Court held that the trial justice's
instructions, when viewed in their entirety, presented the jurors with
all the necessary elements that the state had to prove and informed the
jurors with the appropriate burden of proof to be applied in this case.
In his third argument on appeal, the defendant,
a native of Egypt, argued that he was prejudiced at trial by his
difficulties with the English language. The Court held that this
issue was waived because it had not been raised properly below.
Last, the defendant asserted that the state
violated his constitutional rights because it failed to provide him with
exculpatory evidence. The Court found this assertion to be merit
less. The judgment of conviction was affirmed.
Wayne Cady v. IMC Mortgage Company et al, No. 02-484 (December 20,
The plaintiff,
Wayne Cady (Cady), brought suit against his employer, RMC Holdings,
Inc., a wholly owned subsidiary of IMC Mortgage Company (collectively
corporate defendants), and Harry Struck (Struck), Cady's former
supervisor, after defendants terminated Cady while the parties were
still under a five-year employment agreement. The jury found that
Cady was terminated without cause and, therefore, was entitled to
damages for breach of contract. In addition to many other counts,
the jury determined that Struck surreptitiously had listened in on
Cady's telephone conversations in violation of the federal wiretapping
statute and that Struck had invaded Cady's privacy. The jury
awarded Cady more than $500,000 in damages. The trial justice
amended the damages after trial, finding that $100,000 in punitive
damages assessed against corporate defendants was inappropriate because
the jury had not awarded any compensatory damages against corporate
defendants. The parties appealed to this Court on numerous
The Supreme Court
affirmed the trial justice's rulings on all but one issue. The
trial justice's decision relating to defendants' Workers' Compensation
argument; to Struck's federal wiretapping arguments; to Cady's punitive
damages arguments were affirmed. The Court concluded, however,
that the trial justice had improperly instructed the jury on the
doctrine of commercial frustration. Therefore, Cady should have
been awarded the full amount of damages for the time remaining on his
employment contract. The case was remanded to the Superior Court
to make the appropriate adjustment and for a hearing on attorney's fees
and costs.
In re Ephraim L. et al, No. 02-716 (December 20, 2004)
The respondent,
Linda A. Logan, appealed from the Family Court's finding that her
children, Ephraim and Theodora Logan, were "dependent" on the court for
protection and assistance. In addition, Logan argued that the Family
Court had violated her First Amendment right to the free exercise of
religion under the United States Constitution. The Court affirmed
the Family Court judgment, holding that there was sufficient evidence to
support the trial justice's dependency finding. Because Logan did
not assert them at trial, her free exercise claims were waived.
Harvard Pilgrim Health Care of New England v. Gelati, No. 03-197
(December 17, 2004)
The plaintiff, Harvard Pilgrim Health Care,
appealed three Superior Court judgments upholding the City of
Providence's tangible personal property assessments for the tax years
1997, 1998, and 1999. Harvard Pilgrim's overriding claim on appeal
was that the city had assessed its tangible personal property in excess
of fair market value, violating G.L. 1956 § 44-5-12. To succeed on
its over-assessment claim, Harvard Pilgrim had the burden of proving the
fair market value of its property. For the 1997 and 1998 tax
years, the trial justice rejected the plaintiff's retroactive appraisal
evidence as unpersuasive. Because the plaintiff's expert provided
only a "bald reference" to experience, without more, as justification
for his appraisal conclusions, the Court held that the trial justice did
not abuse his discretion.
Harvard Pilgrim next alleged that, with respect
to its 1999 tax appeal, the Superior Court erred in concluding that
certain tolling provisions of the Insurer's Rehabilitation and
Liquidation Act, G.L. 1956 § 27-14.3-19 and § 27-14.3-28, did not cure
Harvard Pilgrim's untimely appeal to the Board of Tax Assessment Review.
The Court held that the trial justice erred in concluding that the term
"action or proceeding" only applied to toll statutes of limitation in
conjunction with newly instituted litigation by insurance companies in
rehabilitation or liquidation. Accordingly, the Court remanded the
case to the Superior Court for further proceedings on the merits of
plaintiff's claims.
Thomas Contois et al v. Town of West Warwick et al, No. 03-379
(December 17, 2004)
The plaintiffs,
parents of an eight-year-old child who tragically died after a
fever-induced seizure caused him to aspirate his own vomit, sued the
defendants, the Town of West Warwick and individual Emergency Medical
Technicians, for gross negligence in the delivery of emergency medical
treatment to their son. The plaintiffs allege that a delay of
approximately sixty seconds took place before the EMTs suctioned the
child, and that the delay doomed any chance their son had to survive the
seizure and resulting aspiration. After a trial in the Superior
Court, a jury returned a verdict in favor of the defendants. The
plaintiffs appealed, arguing that the trial justice's failure to
instruct the jury on the loss of chance doctrine confused the jury in
light of the plaintiffs' experts' testimony, and, in correlation, urge
the Court to formally adopt the loss of chance doctrine.
Additionally, the plaintiffs argue that the trial justice erred by
including an intervening cause charge in her charge to the jury.
The Court indicated that it may revisit of the
loss of chance defense under appropriate circumstances, but held that
the facts present here cannot be reconciled with the loss of chance
doctrine. Therefore, the Court held that the trial justice
did not err by declining to charge the jury on loss of chance, nor did
the Court conclude that the instruction on intervening cause constitutes
reversible error.
Raymond F. Pollard v. Eugene Hastings et al, No. 03-169 (December
16, 2003)
This appeal arises from a will contest tried
before a jury in which the trial justice granted the defendants' motion
for a new trial. The plaintiff challenged the will on the grounds
that the decedent lacked testamentary capacity. On appeal, the
Supreme Court concluded that the trial justice appropriately performed
his function when he weighed the evidence, commented on the credibility
of the witnesses, and found that he did not agree with the verdict.
The order is affirmed and the case remanded for a new trial.
James Canavan v. Lovett, Schefrin and Harnett et al, No. 03-644
(December 16, 2004)
The plaintiff instituted a legal malpractice
action in the Superior Court against the defendant law firm and several
named attorneys after the plaintiff's liability insurer denied his
underinsured motorist liability claim. The defendants moved for
summary judgment on the grounds that the plaintiff's cause of action was
barred by the applicable statute of limitations as set forth by G.L. §
9-1-14.3. On appeal, the Supreme Court reversed, holding that the
evidence, viewed in the light most favorable to the plaintiff, presented
a genuine issue of material fact as to whether the plaintiff had
sufficient knowledge and awareness of facts from which to suspect, in
the exercise of reasonable diligence, that the alleged malpractice had
occurred. Accordingly, the Court concluded as a matter of law that
summary disposition was inappropriate and remanded the record to the
Superior Court.
State v. Michael Morris, No. 01-0587 (December 16, 2004)
The defendant, Michael Morris, appeals from a
Superior Court order denying his post-trial motion to reduce sentence
pursuant to Rule 35 of the Superior Court Rules of Criminal Procedure.
Morris previously had been convicted and sentenced to an aggregate
fifty-year sentence for his part in a brutal home invasion in Cranston,
during which he cut the homeowner on the face. Because Morris did
not meet his burden of proving that the sentence was without
justification and grossly disparate from other sentences generally
imposed for similar offenses, the Court affirmed.
Weaver v.
American Power Conversion Corp. No: 2004-44-Appeal (December 15, 2004)
The plaintiff, a former employee of the
defendant corporation, alleged that the defendant breached a contractual
obligation to award him a specified number of stock options after he
began working for the corporation. The Superior Court granted
summary judgment in favor of the defendant. On appeal, the Supreme
Court affirmed, holding that a reasonable jury could find only that the
original obligation between the parties was extinguished by a second
stock option agreement that was intended by both parties to act as a
replacement for the first. The plaintiff failed to present any
evidence that he at any time outwardly manifested a contrary intent to
the defendant corporation. Accordingly, the Court concluded as a
matter of law that summary disposition was appropriate.
Joseph Soave et al v. National Velour Corporation et al, No. 03-557
(December 14, 2004)
The plaintiff sued the defendant, a building
contractor, for injuries sustained after the plaintiff fell from a
retaining wall. The plaintiff alleged that the defendant's
negligence in failing to install a guardrail on the wall proximately
caused the injury. The Superior Court granted the defendant's
motion for summary judgment. On appeal, the Supreme Court
affirmed, holding that a building contractor who follows plans and
specifications provided by an owner, architect, or engineer, who builds
in reliance on a validly issued building permit, and who relinquishes
control of the finished work product has no duty to third parties
injured as a result of a deficiency in those plans, unless the defect is
so obviously dangerous that no competent contractor would build in
compliance with the specifications. The plaintiff failed to
establish any genuine issue of fact as to the obvious dangerousness of
the plans. Accordingly, the Court concluded as a matter of law
that the defendant owed no duty of care to the plaintiff.
State v. Anthony F. DelBonis, No. 03-511 (December 14, 2004)
The defendant, Anthony F. DelBonis, appeals from
a Superior Court judgment of conviction for
one count of driving under the influence of liquor or drugs (DUI) in
violation of
§ 31-27‑2, as amended by P.L.
2000, ch. 264, § 1. On appeal, the defendant argued that
the trial court erred when it denied his motion to dismiss for lack of
subject-matter jurisdiction because the statute does not provide for
misdemeanor offenses when there is no evidence of the offender's blood
alcohol content (BAC), and therefore, these offenses must be considered
civil violations subject to the jurisdiction of the Traffic Tribunal
pursuant to § 31‑27‑2(h). The Supreme Court determined that, when
properly alleged in a criminal complaint, the District Court is vested
with original jurisdiction over misdemeanor violations of § 31-27-2, and
the Superior Court has jurisdiction over misdemeanor appeals from the
District Court. However, under
the rules of statutory construction governing penal statutes,
an essential element of a
misdemeanor DUI prosecuted under § 31-27-2 was that the defendant's BAC
was .1 percent or greater. The Court also held that the trial
court has no authority to insert a criminal penalty in an enactment of
the Legislature. The judgment is vacated, and remanded with
directions to enter a judgment of acquittal.
Richard J. Casey v. Town of Portsmouth et al, No. 04-124 (December
13, 2004)
The plaintiff, Richard J. Casey (plaintiff),
brought suit against the defendants, Town of Portsmouth (town) and Donna
A. Barker, individually and in her capacity as town personnel director
(collectively defendants), alleging that the defendants discriminated
against him based on his age by twice failing to hire him for the
position of utilityman in 1998. The hearing justice granted the
defendant's motion for summary judgment.
The Supreme Court affirmed the ruling of the
motion justice and held that the facts did not support an inference of
age discrimination because the plaintiff failed to offer proof that the
legitimate, nondiscriminatory reason that the defendants gave for not
hiring him was pretextual.
Nellie S. Francis v. American Bankers Life Assurance Company of Florida,
No. 03-599 (December 13, 2004)
The Supreme Court affirmed, concluding that the
plaintiff failed to introduce sufficient proof to sustain her
allegations. The Court also held that the plaintiff had neither
met the procedural requirements, nor even attempted to introduce medical
records, under G.L. 1956 § 9‑19‑27.
In addition, as the trial justice correctly
stated, the plaintiff failed to put forth any evidence showing that she
sustained damages as a result of the defendant's alleged actions.
Consequently, after looking at the evidence
presented in the light most favorable to the plaintiff and drawing all
reasonable inferences in her favor, there remain no factual issues in
dispute that reasonable people could disagree about. Therefore,
the trial justice correctly granted judgment as a matter of law in favor
of the defendant.
State v. Curley Snell, No. 01-621 (December 13, 2004)
The Supreme Court affirmed a hearing justice's
decision to revoke the defendant's probation. On appeal, the
defendant argued that his right to confront and cross-examine the
state's witness was violated and his right to present his own evidence
and testimony was violated. This Court held that defendant
actually was permitted to cross-examine the state's only witness at
length, and the hearing justice was within his discretion when he
sustained the state's objection to the phrasing of the defendant's
questions. In addition, although noting that the hearing justice
did short-circuit the hearing, this Court held that the defendant's
failure to request to address the hearing justice precluded him from
appealing on those grounds
Frenchtown Five L.L.C. v. Carmela Vanikiotis, alias Jane Doe, No.
04-30 (December 9, 2004)
The defendant appeals from the granting of a preliminary injunction by
the Superior Court. The plaintiff corporation and its
predecessors-in-title historically have benefited from a right-of-way
across the defendant's property. When the defendant frustrated
access to the right-of-way, the plaintiff sought judicial intervention,
and the Superior Court, applying a four-part test, granted a preliminary
injunction to prevent the defendant from blocking the plaintiff's access
to the right-of-way. The Supreme Court held that trial justice did
not abuse his discretion in granting the preliminary injunction, and
that he properly found that (1) the plaintiff established a likelihood
of success on the merits, (2) the plaintiff would suffer irreparable
harm without the requested injunctive relief, (3) a balancing of the
equities weighed in favor of the plaintiff, and (4) issuance of the
preliminary injunctive served to preserve the status quo.
Therefore, the Court affirmed the Superior Court order and denied the
defendant's appeal.
Luanne Powers, Individually and as Guardian and Next Friend of the minor
Plaintiffs, James Powers and Amanda Powers v. Joseph A. Coccia, No.
04-91 (December 9, 2004)
The plaintiffs appeal from a Superior Court
judgment denying their motion for a new trial. One year after
complaining to the defendant landlord about birds flying close to their
windows, the tenant plaintiffs discovered bird mites in their apartment.
The plaintiffs initially contacted a pest control company themselves,
but from that point on, the defendant made arrangements with the
exterminators and contractors needed to combat the mite infestation.
After vacating the apartment, the plaintiffs sued the defendant, in
separate actions, for a return of the security deposit and for
A jury found for the defendant in the negligence
suit, after which the Superior Court denied the plaintiffs' subsequent
motion for a new trial. On appeal, the plaintiffs argued that the
trial justice erred when she denied the plaintiffs' motion to introduce
as non-hearsay an affidavit filed by the defendant in the security
deposit action that contains statements and invoices made by the
exterminators and contractors. The Court held that because
defendant's affidavit neither falls under Rule 801(d)(2)(B) as an
adoptive admission nor constitutes a statement made by a party's agent
under Rule 801(d)(2)(D) of the Rhode Island Rules of Evidence, it was
properly excluded as hearsay. Therefore, the Court denied the
plaintiffs' appeal.
Michael J. McEntee et al v. C. Noah Davis et al, No. 03-522
(December 9, 2004)
The trial justice
correctly granted the plaintiffs' petition to enforce a consent judgment
pursuant to Rule 70 of the Superior Court Rules of Civil Procedure.
The parties, neighboring landowners in the Town of
South Kingstown, disagreed about the validity of the consent
judgment conveying a driveway located on the defendant's property to the
plaintiffs. The defendants argued that the consent judgment should
be rescinded or nullified based on mutual mistake. The trial
justice rightly held that a unilateral, and not mutual, mistake occurred
when the defendant installed the driveway based on erroneous data
supplied by his own surveyor, resulting in the conveyance to the
plaintiffs of more land than the defendant had intended to convey.
This Court applied a deferential standard of review and determined that
the trial justice's findings of fact were not clearly erroneous.
The trial justice did not overlook or misconceive material evidence, and
the decision did not fail to do substantial justice between the parties.
J. Andrade et al v. David B. Perry et al, No. 03-432 (December 8, 2004)
Consistent with
its previous holdings, the Court concluded that prejudgment interest
should be added against municipal employees, but a specific designation
of individual capacity is not a prerequisite for recovery. After
an automobile accident between the plaintiff and an on-duty South
Kingstown police officer, the plaintiff sued both the officer and the
town. A jury returned a verdict against both the defendants, and
prejudgment interest was later added to the judgment against the
officer. The defendant officer appealed, arguing that prejudgment
interest should not apply to a judgment against a police officer acting
within the scope of his official duties, and that the plaintiff's
complaint was insufficient to give the officer notice that he was being
sued in his individual capacity. The Court declined to overrule
clearly established law providing for prejudgment interest against
public employees. Likewise, the Court refused to read into the
recent decision in Feeney v. Napolitano, 825 A.2d 1 (R.I. 2003) a
requirement that individual capacity specifically must be pled in order
to assess prejudgment interest against a public employee.
Union Station Associates et al v. Thomas Rossi, in his capacity as Tax
Assessor for the City of Providence et al, No. 02-454 (December 8, 2004)
The City of
Providence imposed an illegal retroactive tax on several landowners in
the Capital Center District of the city. The Superior Court
declared the tax illegal and permanently enjoined the city from
enforcing the levy. The plaintiffs thereafter sought a writ of
mandamus directing the city to issue clean municipal lien certificates
pursuant to the Superior Court order. The trial justice granted
the petition and awarded attorneys' fees. On appeal, the Supreme
Court concluded that the trial justice's granting of the plaintiff's
petition for a writ of mandamus was not erroneous. The defendant
was under a defined ministerial obligation to comply with an order of
the Superior Court. The defendant's appeal of that previous
decision did not stay its duty to follow the order. Furthermore,
at no time did the defendant present a justiciable issue of law or fact
in defense of the tax scheme. Accordingly, plaintiff was entitled
to attorney's fees under G.L. 1956 § 44-7-12(b).
State of Rhode Island v. Rhode Island Alliance of Social Service
Employees, Local 580, No. 03-600 (December 1, 2004)
The Supreme Court held that the Superior Court
properly affirmed an arbitrator's award. The defendant labor union
sought redress from the state after a member of the union had her car
stolen from the parking lot at the Department of Health and Human
Services, where she worked. The arbitrator interpreted the
collective bargaining agreement (CBA) broadly and concluded that the
state failed to take "prompt appropriate" action to correct the unsafe
parking lot after it had been notified of the "unsafe conditions."
Because the arbitrator did not exceed his powers and the award "drew its
essence" from the CBA, the Supreme Court was required to defer to the
arbitrator's award.
Sengchanh Amphavannasouk v. Dawn Simoneau, No. 03-472 (December 1,
The plaintiff, Sengchanh Amphavannasouk, brought
suit against the defendant, Dawn Simoneau, after an automobile accident
in Providence. A unanimous jury returned a verdict for the
defendant. The plaintiff made a motion for a new trial, asserting
that the verdict had been tainted by the introduction of extraneous
information to the jury by one of the jurors. The trial justice
heard testimony from the jury foreperson and, based on this testimony,
the trial justice denied the plaintiff's motion.
The Supreme Court affirmed the denial of the
plaintiff's motion for a new trial. The testimony of the jury
foreperson supported a conclusion that any extraneous information
brought into deliberations probably would not affect a reasonable
average juror.
State v. Thomas Martini, No. 03-0387 (November 26, 2004)
The state appeals
from the dismissal by the Superior Court of a Criminal Information filed
against the defendant, Thomas Martini. The state argued that a
disorderly conduct conviction under G.L. 1956 § 11‑45‑1 against a family
or household member is a crime of domestic violence and is subject to
the sentencing enhancements provided in G.L. 1956 § 12‑29‑5(c).
However, pursuant to the provisions of § 11‑1‑2, the penalty provisions
set forth in § 11‑45‑1 classify disorderly conduct as a petty
misdemeanor. The sentencing enhancement provisions of § 12‑29‑5(c)
are limited to persons "convicted of an offense punishable as a
misdemeanor." Accordingly, by its terms, § 12‑29‑5(c) excludes
from its provisions offenses that are not punishable as a misdemeanor.
The judgment is affirmed.
Town of Cumberland v. Rhode Island Interlocal Risk Management Trust,
Inc. et al, No. 02-0002 (November 24, 2004)
This is an appeal
from a grant of summary judgment in favor of the Town of Cumberland
seeking indemnification from the defendant-insurers, which issued
insurance policies for losses, in connection with a settlement the town
paid in an underlying suit. The Supreme Court previously had
concluded that plaintiff was liable for damages in the underlying suit
for violating the substantive and procedural due process rights of the
claimants by wrongful interference with their subdivision plans. On
appeal, the defendants jointly assigned three errors: (1) that the
general liability policy provides coverage for personal injuries that
are intended or expected; (2) that Rhode Island public policy does not
prohibit the payment of insurance benefits for damages intentionally
caused by the insured; and (3) that the town's claim was not barred by
the exclusion for claims "in any way connected with * * * condemnation"
of property. In addition, one of the named defendants asserted the
applicability of exclusionary language in its excess liability policy.
The Supreme Court affirmed the judgment, agreeing with the motion
justice's findings that: (1) the insurance policy provides
coverage because the contract language purporting to exclude intended
and expected injuries is in conflict with the enumerated intentional
torts that were covered, including civil rights violations; (2) Rhode
Island public policy does not bar an insured from indemnification for
intentional torts when the insurance policy explicitly provides such
coverage; and (3) the inverse condemnation exclusion does not apply
because the settlement did not arise from an eminent domain proceeding
or a regulatory taking. In addition, the Court concluded that the
separate claims of the excess liability insurance provider were without
Gbenga Lajayi v. Adebo Fafiyebi et al, No. 03-618 (November 17,
The defendant,
Adebo Fafiyebi, appealed from a judgment granting specific performance
of a purchase and sales agreement in favor of the plaintiff, Gbenga
Lajayi. After a jury-waived trial, the trial justice, ruling that
the lack of a "time is of the essence" clause in the agreement required
the plaintiff only to consummate the transaction within a reasonable
period, ordered specific performance. The defendant contends that
the trial justice erred in granting specific performance because the
plaintiff failed to comply with certain conditions delineated in the
purchase and sales agreement. The defendant also contends that the
trial justice erred in finding that the mortgage contingency clause was
for the benefit of the plaintiff, and that the plaintiff properly waived
the conditions contained in the mortgage contingency clause.
On appeal, the
Supreme Court concluded that the trial justice erred in finding that the
mortgage contingency clause was for the benefit of the plaintiff.
However, the Court held that the mortgage contingency clause was for the
mutual benefit of the parties and that, based on the findings of the
trial justice, both parties had waived the clause. The Court
agreed with the trial justice's finding that the lack of a "time is of
the essence" clause in the agreement required the plaintiff only to
consummate the transaction within a reasonable period. The
Court concluded that the trial justice in this case had before him ample
evidence to support his finding that plaintiff acted with due diligence
in obtaining alternate financing and attempting to effectuate the
closing on the properties. Thus, the Court upheld the judgment
granting specific performance.
Carmen P. Boscia v. Jami C. Sharples et al, No. 03-270 (November 12,
This is an appeal
from a denial of plaintiff's motion for an additur or a new trial in a
personal injury action tried before a jury. The plaintiff assigned
three errors to the rulings of the trial justice: the exclusion of crash
scene photographs; the introduction of unauthenticated medical records;
and the denial of plaintiff's motion for an additur or a new trial.
On appeal, the
Supreme Court vacated the judgment, concluding that the trial justice
committed reversible error by excluding relevant photographs and
allowing into evidence unauthenticated medical records. The Court
held that the cumulative effect of these errors so prejudiced the
plaintiff's case as to work an injustice upon him. The judgment is
vacated and the case remanded for a new trial.
Paul J. Andrukiewicz v. Georgia D. Andrukiewicz, No. 02-395
(November 12, 2004)
In post-judgment
divorce proceedings, the defendant/wife, Georgia Andrukiewicz, sought
enforcement of the terms of the parties' property settlement agreement.
The Family Court found that the language of the agreement entitles the
wife to receive her share of the value of the plaintiff/husband's
pension benefits as of his "normal retirement date," which was declared
to be the date that he becomes eligible to retire. On appeal, the
husband acknowledged that the agreement provides that the wife will
received $583 each month as of his "normal retirement date," but argued
that this language is ambiguous and must refer to the date he actually
retires to avoid an inequitable and unconscionable result. The
Supreme Court rejected his argument and deemed the language of the
agreement to be clear and unambiguous. The Court said that under
its plain and ordinary meaning, the husband's "normal retirement date"
is when he is eligible to retire under his pension plan. Further,
the Court declined to reach the defense of laches because the husband
had not properly preserved it for appellate review. The judgment
is affirmed.