Recent Developments in Rhode Island Law 2014 - State Courts and Civil Procedure

Recent Developments in Rhode Island Law

2014

State Courts and Civil Procedure

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Nicole J. Benjamin, [email protected] Pollock & Sheehan P.C.One Citizens Plaza, 8th FloorProvidence, RI 02903(401) 274-7200www.RIAppeals.com

Recent Developments

• Electronic filing in Civil Cases

• Providence County Civil Non-Dispositive Motion Calendar

• Issues of First Impression

• Recent Developments in Appellate Practice

Electronic Filing in Civil Cases

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• Commencing on November 5, 2014.

• All civil cases filed on or after November 5, 2014, must be filed electronically.

• Existing civil case files will be scanned when a matter is scheduled in the case.

• Closed cases will remain in paper form.


• Register for the Public Access Portal. • Register for the Electronic Filing System.

• Attend training webinar. • Read Proposed Article X, Rules Governing Electronic Filing, Rules of Civil Procedure and Rules of Practice.


Proposed Article XRules Governing Electronic Filing

• Rule 3: Misuse of the electronic filing system may constitute a violation of the Rules of Professional Conduct.


• Rule 4: Materials such as videotapes, xrays, etc. may be filed manually upon filing Notice of Manual Filing. • Rule 5: Electronic filing system will be available 24 hours a day, 7 days a week. Must file by 11:59 to be timely.


• Rule 6: New language for certificates of service.

• Rule 7: If a document requires the signature of an opposing party, signatures should be obtained and scanned.

Significantly different from practice in Federal Court.


• Discovery may be served through the Electronic Filing System. Discovery will not be filed with the Court if the service only option is utilized.

Significantly different from practice in Federal Court.

Providence County CivilNon-Dispositive Motion

Calendar

Judge Licht’s October 10, 2014 Order

Eliminates the call of the calendar, commencing November 12, 2014.


CalendarBy midnight on the Monday before the Wednesday calendar, counsel for one of the parties must send an email to:

[email protected]


Calendar

Email subject line:

Re: Case Number, Case Name


CalendarEmail body:

(1) Ready or Ready Subject(2) Ready (Discovery Dispute)(3) Formal or Formal Subject(4) Formal (Subpoena of Medical Records)(5) Order to enter by agreement(6) Continued by agreement (to a specific date)(7) Pass by agreement


Calendar

Email cc:

Opposing counsel


CalendarIf opposing counsel disagrees, he/she must indicate the disagreement in an email by 4 p.m. on the Tuesday before the Wednesday calendar.

The motion will be treated as ready.


Calendar

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Calendar9:30 a.m. Formal matters

10:45 a.m. Formal/Subpoena of Medical Records

11:00 a.m. Ready/Ready Subject

2 p.m. Ready/Discovery Dispute

The 2013-2014 Rhode Island Supreme

Court Term


Court Term78 civil decisions (15 more than last term)

33 civil orders

7 dissents in civil matters (2 disciplinary)

14 attorney discipline matters


Court Term2013 Appellate Caseload

194 Civil

195Certiorari

46 Miscellaneous

Issues of First Impression

16 issues of first impression addressed by

the Rhode Island Supreme Court in the

2013-2014 term.

Issues of First Impression

AdmiraltyAppellate PracticeAttorneys Class ActionsCommercial LawEmployment Law

InjunctionsMedical MalpracticeDog BitesMedical Records ReviewQuasi ContractEvidence

Admiralty Law

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King v. Huntress,94 A.3d 467 (R.I. 2014)

HELD: Unearned wages are available on a maintenance claim only from the time seaman becomes unfit for his or her duties until the balance of the voyage, unless the seaman has a employment contract providing him or her with the right to employment for a fixed period of time.

King v. Huntress, 94 A.3d 467 (R.I. 2014)

HELD: Federal maritime law, not Rhode Island statutory law, governs an award of prejudgment interest. Thus, prejudgment interest is not automatically added to a judgment as it is under Rhode Island law. Instead, the decision to award prejudgment interest is left to the discretion of the jury.

Appellate Practice

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Carrozza v. Voccola,90 A.3d 142 (R.I. 2014)

HELD: A concession of a point by a party in a pre-

briefing statement does not preclude that party

from raising the issue at the time of full briefing.

Long v. Dell,93 A.3d 988 (R.I. 2014)

HELD: A trial justice’s decision on a motion to

strike brought pursuant to

R.I. Super. Ct. R. Civ. P. 12(f)

is reviewed for abuse of discretion.

Attorneys


In re Application of Carlton Vose,

93 A.3d 33 (R.I. 2014)HELD: The Supreme Court’s Committee on

Character and Fitness may consider another

state’s findings in determining whether an

applicant for admission to the Rhode Island bar

possesses the requisite character and fitness.

Class

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Actions

Long v. Dell,93 A.3d 988 (R.I. 2014)

HELD: When a defendant files a motion for summary judgment before the plaintiff class is certified, the Court must treat the case as though it were certified as a class action. By treating a case as a certified class action at the summary judgment stage, the Court may consider the injury or damage sustained by the class and is not restricted to the injury or damage of the named plaintiff(s).

Commercial Law

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Usury

NV One v. Potomac Realty Capital,

84 A.3d 800 (R.I. 2014)

HELD: Usury savings clause in a commercial loan

document does not validate an otherwise

usurious contract.

The Rhode IslandDeceptive Trade

Practices Act

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Long v. Dell,93 A.3d 988 (R.I. 2014)

HELD: To prove that a trade practice is deceptive under the Deceptive Trade Practices Act, R.I. Gen. Laws § 6-13.1-1 et seq., a plaintiff must demonstrate: “[1] a representation, omission, or practice, that [2] is likely to mislead consumers acting reasonably under the circumstances, and [3], the representation, omission, or practice is material.” (adopting the FTC’s interpretation of § 5(a) of the Federal Trade Commission Act).

Long v. Dell,93 A.3d 988 (R.I. 2014)

HELD: To be actionable, deceptive act does not

need to be made with intent to deceive, “it is

enough that the representations or practices

were likely to mislead consumers acting

reasonably.”

Rhode Island’sWhistleblowers’

ProtectionAct


Russo v. State,87 A.3d 399 (R.I. 2014)

HELD: An employer’s placement of an employee

on paid administrative leave does not constitute

an adverse employment decision akin to

discharging, threatening or otherwise

discriminating against the employee under

Rhode Island’s Whistleblowers’ Protection Act.

Russo v. State,87 A.3d 399 (R.I. 2014)

HELD: Administrative leave with pay is not considered a suspension and it has been deemed to be “a reasonable means of coping with a problematic workplace situation while only ‘minimally affecting’ the employee.” Consequently, an employee placed on paid administrative leave cannot claim a violation of the Whistleblowers’ Protection Act.

Injunctions

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Long v. Dell,93A.3d 988 (R.I. 2014)

HELD: An injunction is a remedy, not a cause of action.

MedicalMalpractice

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Ho-Rath v. Rhode Island Hospital,

89A.3d 806 (R.I. 2014)Presented two issues of first impression.


89A.3d 806 (R.I. 2014)1. “Whether . . . medical malpractice claims may be brought on a child’s behalf at any time before the minor reaches the age of majority, and thereafter by the child within three years after attaining the age of majority[.]”


89A.3d 806 (R.I. 2014)1. “or [whether] medical malpractice claims must be brought on behalf of a minor child within three years of the incident giving rise to the cause of action, or within three years after attaining the age of majority – but at no time in between.”


89A.3d 806 (R.I. 2014)2. “Whether parents may bring their derivative claims at whatever time the minor’s medical negligence claims are pursued, or whether parents must file all derivative claims within three years of the incident giving rise to the cause of action, even if the child’s claims are not brought until sometime thereafter.”


89A.3d 806 (R.I. 2014)The Supreme Court concluded that on the basis of these two issues of first impression, full briefing and argument was required. Thus, while these issues of first impression were not resolved we can anticipate that they will be resolved after they come before the Court for full argument this term.

Dog Bites

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Coogan v. Nelson,92A.3d 213 (R.I. 2014)

HELD: Under common law, a dog owner may be held liable for a dog bite occurring within the dog owner’s enclosure if the plaintiff can “prove that the defendant knew about the dog’s vicious propensities.” The common law rule is commonly referred to as the “one-bite rule,” however, in Coogan the Supreme Court held that a bite is not the only type of prior incident that would suffice to indicate a dog’s vicious propensities.

Medical Records Review

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Woodruff v. Gitlow,91 A.3d 805 (R.I. 2014)

HELD: A doctor who has been hired by a third party to provide an opinion about a patient based solely on the review of the patient’s records does not owe a duty of care to the patient. Consequently, the doctor cannot be held liable in a suit by the patient for any negligence occurring in connection with the doctor’s medical records review.

Quasi Contract Quantum Meruit

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Process Engineers & Constructors, Inc. v. DiGregorio, Inc,

93 A.3d 1047 (R.I. 2014)HELD: Quantum meruit is a claim or right of action for the reasonable value of services rendered. To establish a prima facie case, a plaintiff need only submit evidence of the value of the services; the factfinder may infer the charges are fair and reasonable. If the defendant contests the reasonableness of the value, the burden will then shift to the defendant to demonstrate that the charges are unreasonable.

Reply Letter Doctrine

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McGovern v. Bank of America, N.A.,91 A.3d 853 (R.I. 2014)

HELD: The Rhode Island Supreme Court recognized for the first time the “Reply Letter Doctrine,” one of the means by which evidence may be authenticated under the Rhode Island Rules of Evidence. (citing Advisory Committee Notes to R.I. R. Evid. 901(b)(4)).

McGovern v. Bank of America, N.A.,91 A.3d 853 (R.I. 2014)The Reply Letter Doctrine allows “‘a letter [to] be

authenticated by content and circumstances indicating it was in reply to a duly authenticated one.’” (quoting Advisory Committee Notes to Fed. R. Evid. 901(b)(4)). The proponent of the evidence must “‘prove that the first letter was dated, was duly mailed at a given time and place, and was addressed to [the sender of the reply-letter].’”

Recent Developments in Appellate Practice


Final Judgment Rule


Appeal from Grant of Summary Judgment in Favor of

One Defendant Without 54(b) Judgment

Maciel v. Davey,76 A.3d 149 (R.I. 2014)

Summary judgment entered in favor of one of several defendants.

No Rule 54(b) judgment entered.

Plaintiff appealed from the grant of summary judgment.

Maciel v. Davey,76 A.3d 149 (R.I. 2014)

After a Rule 12A conference, the Supreme Court dismissed plaintiff’s appeal because the order that granted the motion for summary judgment was interlocutory.

Without a final judgment, the appeal was improper.

No argument afforded.

The McAuslan Doctrine – Doctrine Applied

DePina v. State,79 A.3d 1284 (R.I. 2013)

With few exceptions, appeals are only permitted from a final judgment.

Generally, interlocutory orders are only reviewable by certiorari.


Judicial exception: The McAuslan Doctrine

First recognized by the Supreme Court in 1912 McAuslan v. McAuslan, the doctrine provides that an interlocutory order may be reviewed before a case has concluded when the order “‘has such an element of finality as to require immediate review by [the Supreme] Court to avoid possible injurious consequences.’”


Plaintiff served a subpoena seeking mental health records.

A motion to quash the subpoena was denied.


On appeal, the patient argued that the consequences of the trial court’s order were imminent and irreparable because once the medical records are released, the confidential nature of those documents could not be remedied.

Court agreed and applied the McAuslan Doctrine.

McAuslan Doctrine – Mechanism for Raising Doctrine

Weeks v. 735 Putnam Pike Operations,

85 A.3d 1147 (R.I. 2014)The Court’s decision strongly suggests that the McAuslan Doctrine may be invoked in the context of a direct appeal, rather than in the context of a petition for writ of certiorari.

Weeks v. 735 Putnam Pike Operations,

85 A.3d 1147 (R.I. 2014)The defendant argued that the plaintiff’s appeal was interlocutory in nature and should be dismissed because the plaintiff chose to file a direct appeal instead of filing a petition for writ of certiorari.

Court deemed the appeal appropriate under the McAuslan Doctrine.

Raise or

Waive

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Jury Instructions


Pursuant to Rule 51(b), “[n]o party may assign as error the giving or the failing to give an instruction unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds for the party’s objection.”


The Supreme Court has been “especially rigorous in the application of the raise-or-waive rule when considering objections to jury instructions.”

Motions in Limine

Martin v. Lawrence,79 A.3d 1275 (R.I. 2013)

A preliminary ruling on a motion in limine generally is insufficient to preserve an issue for appellate review.

A proper objection on the record at the trial itself is generally necessary.

Martin v. Lawrence,79 A.3d 1275 (R.I. 2013)

In Martin, the Court excused the defendant’s noncompliance with this general rule, recognizing that because the motion in limine was made on the day of trial, the defendant may have been reluctant to attempt to introduce the evidence.

Timeliness of Appeal

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Miller v. Metropolitan,88 A.3d 1157 (R.I. 2014)

In Miller, the Court held that under Rule 4(a), when a party files a notice of appeal, any party adverse to that appeal may file a notice of appeal within 20 days of the filing of that notice of appeal. This is true even if the party seeking to invoke the rule has already filed a notice of appeal in the case.


Rule 4(a) provides in relevant part: “If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within twenty (20) days of the date on which the first notice of appeal was filed, or within the time otherwise prescribed by this subdivision, whichever period last expires.” R.I. Sup. Ct. R. App. P. 4(a).


The Supreme Court held that Rule 4(a) “should be interpreted to provide a twenty-day appeal period after the first timely notice of appeal from an adverse party.” According to the Court, Rule 4 was designed to “‘allow all parties an opportunity to see and respond to the actions of their adversaries.’” (quoting Lee v. Coahoma County Mississippi, 937 F.2d 220, 223 (5th Cir. 1991)).


Judgment in favor of Plaintiff May 31, 2012

Metropolitan and Amica filed Renewed Motion for Judgment as a Matter of Law and Motion for New Trial


Order denying Metropolitan’sMotions August 20, 2012

Order granting Amica’s Motion for Judgment as aMatter of Law and ConditionallyGranting Amica’s Motion forNew Trial August 20, 2012


Plaintiff timely appealed, listing Amica as the only defendant August 27, 2012

Metropolitan timely appealedfrom the judgment and the orderdenying its post-trial motions, listingPlaintiff and Amica and Allstate on its notice of appeal August 31, 2012


Plaintiff cross-appealed from the May 31, 2012 judgment September 18, 2012

Metropolitan moved to dismissPlaintiff’s cross-appeal asuntimely


HELD: Plaintiff’s cross-appeal was timely because it was within 20 days of Metropolitan’s August 31, 2012 notice, the first time Plaintiff had notice of an appeal from an adverse party.

In re Kyla C.,79 A.3d 846 (R.I. 2013)

In In re Kyla C. the Rhode Island Supreme Court held that the Family Court exceeded its authority when it vacated and reissued an order for the sole purpose of permitting a party sufficient time to file an appeal.

In re Kyla C.,79 A.3d 846 (R.I. 2013)

Over a year after the Family Court had issued a decree terminating the respondent’s parental rights and after the respondent missed the deadline for filing an appeal, the Family Court vacated the termination of parental rights decree and issued a new termination decree to afford the respondent an opportunity to file a timely appeal.

In re Kyla C.,79 A.3d 846 (R.I. 2013)

The Supreme Court declined to entertain the appeal on the grounds that it was not properly before it. In doing so, the Court recognized that “‘courts of this state lack jurisdiction to vacate and then to re-enter a judgment as a means of extending the time allowed under the applicable statutory limitation for the claiming of an appeal.’” (quoting Ferranti v. M.A. Gammino Construction Co., 289 A.2d 56, 57 (R.I. 1972)).

Premature Appeals


Miller v. Saunders80 A.3d 44 (R.I. 2013)

Under Rule 4 of the Rhode Island Rules of Appellate Procedure, an appeal to the Rhode Island Supreme Court is timely if it is filed within 20 days of the date of the entry of the judgment, order, or decree appealed from.

Generally, the Rhode Island Supreme Court treats premature appeals as timely.

Perfecting anAppeal

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In re Kyla C.,79 A.3d 846 (R.I. 2013)

Court dismissed appeal when pro se litigant failed to timely transmit the record.

In re Kyla C.,79 A.3d 846 (R.I. 2013)

Rule 11(c) of the Rules of Appellate Procedure permits an extension of time when the inability of the appellant to timely transmit the record is due to his or her excusable neglect.

In Kyla C., the respondent offered no reason for his neglect other than that he did not understand he was required to order a transcript. Such neglect is not excusable, even for a pro se litigant.

Process Engineers v. DiGregorio,

93 A.3d 1047 (R.I. 2014)Court reminded litigants that it is the responsibility of the parties to ensure that all transcripts are ultimately filed with the Court.

Fiorenzano v. Lima,84 A.3d 811 (R.I. 2014)

Sanctions are not permitted for failure to perfect an appeal.

An appeal that is not timely perfected may be dismissed but there is no statute or rule that calls for any sanctions for failure to perfect an appeal.

Perfecting anAppeal

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Brief Writing

Process Engineers v. DiGregorio,

93 A.3d 1047 (R.I. 2014)In a rare passage, the Court noted that it “greatly appreciates clear and concise writing. However, it is also essential that the parties support their factual representations to this Court with citation to the record.”

Nat’l Refrigeration v. Capital Properties,

88 A.3d 1150 (R.I. 2014)Failing to file a brief on appeal may led to default.

That was the case in National Refrigeration where a party was defaulted for failure to file a brief on appeal.


of Civil Procedure

Rule 12(c)Motion for Judgment on

the Pleadings

Ingram v. Mortgage Electronic Registration

Systems, Inc.,94 A.3d 532 (R.I. 2014)If a party introduces materials that serve as the

basis for the Court’s conversion of a motion for judgment on the pleadings into a motion for summary judgment, that party cannot complain that it lacked notice that the motion would be converted.

Rule 56Motion for Summary

Judgment


A party who opposes a motion for summary judgment has an obligation to come forward with competent evidence to establish a genuine issue of material fact.


In McGovern, the plaintiff attempted to rely on assertions in his complaint to defeat the defendant’s motion for summary judgment.

The Supreme Court reminded litigants that a non-moving party may not rest on allegations, denials in the pleadings, conclusions or legal opinions.


In McGovern, the Court also reminded litigants that unauthenticated documents are “not usually competent evidence worthy of consideration by the court in ruling on a motion for summary judgment.”


When submitting evidence in connection with a motion or opposition to summary judgment, authentication can be accomplished “by submitting an affidavit of a person with personal knowledge of the documents who can attest to their authenticity and qualify them as admissible evidence.”

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