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Whose Dog Is It? (or, I’m a dog, not just another piece of furniture!)

In a case involving animal rights, the Kent County (Rhode Island) Superior Court recently addressed a matter of “Whose Dog Is It?” (Alexander M . Champagne v. Kelley F. Higgins). In that case, Mr. Champagne and Ms. Higgins traveled to China, where they lived together for about two years. While in China, they “mutually decided to acquire a dog for companionship.”  As the court observed, the dog – Hector – was a loyal companion to both Higgins and Champagne while in China.  In April 2012, Higgins’ visa expired and she returned to the United States with Hector. Champagne remained in China to finish his studies, and in June 2012, returned to the United States. In June 2015, Champagne and Higgins broke up, and  Hector stayed with Higgins.  Champagne eventually sued to get possession of Hector.

As the Kent County Superior Court’s Judge Rubine observed:

  • “In Rhode Island as in most jurisdictions, domestic animals and pets are considered personal property or chattels and ownership and possession are determined by property law. In other words, the majority view finds pet animals to be no different than a piece of furniture or a painting.”

Judge Rubine then cited to a “good summary of the evolving law of companion pets,” referencing Sabrina DeFabritiis’ Barking Up the Wrong Tree: Companion Animals, Emotional Damages, and the Judiciary’s Failure To Keep Pace, 32 N. Ill. U. L. Rev. 237 (2012), and  noted that the  premise of that article is summarized as follows:

  • “An increasing number of American households regard their companion animals as being as much a part of their family as they do their human family members; however, companion animals have not always held this status. The role companion animals serve has evolved from chattel property—whose function was to derive economic benefit—to family members who share a unique emotional bond with their human companions. The judiciary has failed to keep pace with this societal change . . .”

The Rhode Island court, Judge Rubine,  then noted that “a pure property analysis looks principally to the party who paid the purchase price, to determine right to possession,” but also observed that there were problems with treating a companion animal such as Hector like a simple piece of furniture. The Rhode Island court then favorably referenced a “more enlightened approach in keeping with modern societal views” that a recent New York Supreme Court  had taken in the case of Travis v. Murray, 42 Misc. 3d 447 (N.Y. Sup. Ct. 2013), also involving a companion animal.

The Rhode Island court noted the less understanding, historical approach of treating a dog (or other animal) as a simple piece of property involved looking at who has the “superior possessory right in the chattel [property] and thus, it is the property rights of the litigants, rather than their respective abilities to care for the dog or their emotional ties to it, that are ultimately determinative.” The court compared that approach with the New York Travis case standard that, in resolving the issues of ownership and possession of a companion dog, allows “the court to look to factors not considered in order to determine property rights of ownership or possession of other chattels, but recognizes companion animals as sui generis, and right of possession should consider a standard based upon the ‘best for all concerned.’”

The Rhode Island judge then determined that, without proof of clear ownership one way or the other, that the court would apply the “best for all concerned” standard. In doing so, and in “weighing the best for all concerned with respect to ownership or rights to possession of a companion animal,” the judge concluded that Ms. Higgins was entitled to exclusive possession of Hector.  In other words, Hector – and other companion animals – are not just another piece of furniture!

For more detailed facts of the case, please see Alexander M . Champagne v. Kelley F. Higgins, decision dated December 16, 2016, Kent County Superior Court, (Warwick, Rhode Island), Judge Rubine presiding).

Categories: Animal Rights, Civil, Property Law, Recent Decisions.

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What’s in a name? Tomato/Tomato

Sometimes, just sometimes, we do not stop to consider the little issues.  In this case, the plaintiff filed suit against a condo association as it neared the end of the statute of limitation within which to file suit.  However, the plaintiff did not think too much about the named defendant or perhaps thought too much and instead of filing against the condo association the plaintiff filed under “XYZ Company”.   This is equivalent to naming a defendant as John or Jane Doe.  The statute of limitations expired and a year later the plaintiff moved for leave to amend the complaint with the proper name of the defendant.  It turns out that the plaintiff had found several names during the research as to at-fault party prior to filing suit.  Instead of listing these names, and definitively naming the association as listed on with the Recorder of Deeds, the plaintiff waited until the answers on interrogatories and even longer.  XYZ Company cannot substitute for a name if parties have knowledge of the name.  The statute of limitations was not tolled by this strategy and plaintiff lost all rights to have her day in court.  In court proceedings, tomato is tomato.  See opinion Lisa Garant v. Michael E. Winchester et al.

Categories: Uncategorized.

Sometimes We Just Do Not Want To Accept Findings

Judgment for divorce was entered in 2008.  However, this does not mean the matter has ended.  Since then the parties have been back and forth to court on several additional petitions including a Motion for Contempt in which the Court found that John Tworog had violated the terms of the original judgment where he was permitted to stay in the marital home for a period of 2 1/2 years provided that he paid the mortgage and upkeep.  John failed to do so and also exhausted a dormant credit line that was issued to both parties.  The lower court found John in contempt and awarded attorney fees as well.  John filed a pro se appeal only to have the Rhode Island Supreme Court rule that his petition was basically unintelligible and upheld the lower court’s ruling of contempt.  John is ordered to pay $69,000 plus interest.  Is there another round to this marriage?  Let’s wait and see.  Entire text can be found at:  Tworog v. Tworog

 

 

Categories: Uncategorized.

Five Remaining Candidates for Rhode Island District Court Judicial Vacancy

Five candidates are still in the running for retired Rhode Island District Court Judge Frank J. Cenerini’s seat.

The candidates for the District Court judicial vacancy are:

defense lawyer Thomas G. Briody;

Coastal Resources Management Council Hearing officer Brian A. Goldman;

Traffic Tribunal Magistrate Alan R. Goulart;

attorney Paul D. Ragosta; and,

former State Representative Timothy Williamson.

It is expected that one of these persons will be appointed to replace retired Judge Cenerini before the end of this year’s legislative session, which normally concludes in late June.

 

 

Categories: News.

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Rhode Island – The basics – Contract Law & Breach of Contract

Rhode Island – The basics – Contract Law & Breach of Contract

Generally, any written agreement between two parties that meets certain criteria is a contract. Areas where you normally see contracts formed are between two businesses, a person and a business, in real estate transactions such as where you have a purchase and sale agreement, in a divorce where you likely have a property settlement agreement, and in many other everyday situations.

The starting point in all contract claims is that you must have valid contract with the other party. Then, the other party has to break the contract, or in more legal terms “breach” the contract. When the other side breaks the contract, you must either be performing as promised under the contract, or in some circumstances, you were ready, willing and able to perform when the other side broke the contract. As part of your breach of contract claim, you can ask the court to award you money damages for the other side’s breaking of the contract.

Whether you are in Woonsocket, Providence, Warwick, Newport, or anywhere in between, here are some Rhode Island specific things to keep in mind if you have a potential Rhode Island breach of contract claim:

 

Rhode Island – Contract – Statute of Limitations. A statute of limitations is the period in which the cause of action, or lawsuit, must be properly commenced. Generally, the Rhode Island contract statute of limitations for breach of contract actions is ten (10) years, with the ten-year period starting to run when the breach of contract occurs. R.I.G.L. § 9-1-13. There is a different statute of limitations for the very limited circumstances of “contracts or liabilities under seal,” and for actions for a court judgment. The contract statute statute of limitations for those very specific circumstances is twenty (20) years. R.I.G.L. § 9-1-17.

Rhode Island – Contract – Elements.  You will first have to establish you had a valid contract. The Rhode Island Supreme Court has said that the elements of a valid contract are “competent parties, subject matter, a legal consideration, mutuality of agreement, and mutuality of obligation.” R.I. Five v. Med. Assocs., 668 A.2d 1250, 1253 (R.I. 1996). The Rhode Island Supreme Court has further explained the requirement of a mutuality of obligation as “when both parties are ‘legally bound through the making of reciprocal promises.'” D’Oliveira v. Rare Hosp. Int’l, Inc., 840 A.2d 538, 540-41 (R.I. 2004).

Rhode Island – Contract – Breach.  When a party breaks a contract, legally its termed a breach of contract. To bring a Rhode Island claim that the other side broke the contract, or committed a breach of contract, you must show that you were performing as you had promised under the contract when the breach occurred. If you were supposed to perform your contract obligations under the contract at the same time (concurrently) as the party that you are saying broke the contract, the Rhode Island Supreme Court has said that when “concurrent acts are to be performed by the parties to a contract, the party bringing suit for breach need only aver that he or she was ready and willing to perform and that the alleged breacher was requested to perform but refused.” Kottis v. Cerilli, 612 A.2d 661, 663-64 (R.I. 1992). In those circumstances, “It is not necessary that the party alleging the breach actually perform; instead, notice of his or her readiness to perform constitutes and implies tender.” Danforth v. More, Rhode Island Supreme Court, (Jan. 14, 2016).

Rhode Island – Contract – Damages.  Under Rhode Island law, a court can award you damages for breach of contract to place you in as a good a position as if the parties fully performed the contract. This would include any lost profits.  You must, however, be able to prove your damages with a “reasonable degree of certainty,” based on “reasonably precise figures;” and the damages claimed cannot be based on speculation.

Rhode Island law also requires that you take “reasonable efforts and ordinary care” to lessen (mitigate) your damages. “This rule prevents the injured party from sitting silent while the damages accumulate.” Tomaino v. Concord Oil of Newport, Inc., 709 A.2d 1016, 1026-27 (R.I. 1998). Importantly, this “duty to mitigate does not create liability for failure to do so; however, [you are] prohibited from recovering the amount of damages [you] could have reasonably avoided.” Bibby’s Refrigeration, Heating & Air Conditioning, Inc. v. Salisbury, 603 A.2d 726, 729 (R.I. 1992).

Rhode Island – Implied Contract – Elements. If you don’t have an actual signed contract with the other party, then you still might be able to say that you had an implied contract. Under Rhode Island law, an implied contract “is a form of express contract wherein the elements of the contract are found in and determined from the relations of and the communications between the parties, rather than from a single clearly expressed written document.” Marshall Contractors, Inc. v. Brown Univ., 692 A.2d 665, 669 (R.I. 1997). If you do not have a written contract, but instead have several documents or exchanges with the other person or business, then you should consult with an attorney to see if what you do have adds up to an implied contract.

Rhode Island – Recovering attorney’s fees in certain breach of contract actions. Generally speaking, even if you win in your breach of contract lawsuit, you cannot make the losing party pay for the attorney’s fees that you have spent in your lawsuit.  There are certain circumstances, however, where you can make the losing party in your breach of contract claim pay your attorneys fees, as there is a Rhode Island statute that allows for the recovery of those fees. That statute, R.I.G.L. § 9-1-45, says:

The court may award a reasonable attorney’s fee to the prevailing party in any civil action arising from a breach of contract in which the court:

(1) Finds that there was a complete absence of a justiciable issue of either law or fact  raised by the losing party; or

(2) Renders a default judgment against the losing party.

 

If you have a question about a contract, or think someone has broken a contract they had with you, then please call us. We practice in all cities and towns in Rhode Island, from Woonsocket, to Providence, to Warwick, to Newport, and all places in between. Contact us, we can help.

 

Categories: Business, Contracts.

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When Criminal Statutes are Decriminalized While Matter is Still Pending

Defendant John Whiting challenged his conviction because the misdemeanor threshold for his crime was increased after he had been charged.  Whiting was charged with larceny over $500.00, the specific amount being $714.  At the time of the offense, this was classified as a felony because of the amount.  While Defendant Whiting’s case was pending, the Legislature increased the threshold for felonies to $1500 or more.  Whiting motion the court to recognize his case as a misdemeanor.  The Superior Court rejected and the Rhode Island Supreme Court agreed with the Superior Court.  However, all criminal cases where the statutes have been amended, repealed, modified or changed should not be looked at through this narrow scope .  The Supreme Court reminded us that there is a difference when the Legislature decriminalizes a crime then when one is modified:

       “Accordingly, the majority reasoned that it would be “inconsistent with the intent of the Legislature to prosecute acts that are no longer criminal offenses,” and upheld the dismissal of the counts arising under the repealed statute. Id. At bottom, the majority opined that it would be “fundamentally unfair to prosecute an individual for prior conduct that would now not constitute a violation of law.” Id. Unlike the circumstances in Babbitt and Mullen, here, at all relevant times, defendant’s conduct was, and remains, criminal. There was no intention to pardon the type of act committed by defendant.”

The bottom line, each case should be handled individually and if the statute is actually repealed the RI Supreme Court has a track record of recognizing that these are instances where cases should be dismissed.  See the full opinion: State v. John Whiting.

Categories: Criminal.

Restitution, Modification Not So Easy

In the Rhode Island Supreme Court’s order in State v. Rosenbaum we are reminded the standard that the Court uses to determine whether restitution should be reduced and that that she was unable to make restitution.  Although defendant argued that her Social Security could not be used to pay restitution, the Superior Court found defendant had sufficient assets that she could divest herself of to make restitution payments if she wanted, including a vehicle she no longer used but was paying the bank note, insurance and taxes.  Ironically, the court pointed out that while she was making allegations of inability to pay restitution, she was living in a $1.3 million dollar home and was paying attorney fees. See Order at: State v. Rosenbaum

Categories: Criminal.

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Rhode Island – Alimony

In Rhode Island, alimony is a rehabilitative tool intended to provide temporary support until a spouse is self-sufficient, and is based purely on need. Giammarco v. Giammarco, 959 A.2d 531, 535 (R.I. 2008). In determining whether alimony is appropriate, the court first makes the assignment of property under the divorce (divides the marital property). This division of marital property occurs before the court makes the alimony determination because the needs of each party will be affected by the equitable distribution of the marital estate. R.I. Gen Laws §15-5-16.1(c).

In determining the amount of alimony (if any) a person will get, the court is required to consider:

(i) the length of the marriage;

(ii) the conduct of the parties during the marriage;

(iii) the health, age, station, occupation, amount and source of income, vocational skills,  and employability of the parties; and,

(iv) the state and the liabilities and needs of each of the parties.”

Vicario v. Vicario, 901 A.2d 603, 611 (RI 2006).

If you need help with a family law issue, including divorce, alimony, child custody, child support, or relocation, call us at (401) 861-9900. We can help.

Categories: Family Court, Family Law.

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Concurrent Awaiting Trial Sentence Calculations

The Rhode Island Supreme Court recently decided on appeal that the defendant was entitled to the time he was awaiting trial to be credited to his sentence.  Allen Wray was sentenced to a drug case and imposition of the sentence was suspended.  In January of 2006 he was arrested on a robbery case.  He was immediately noticed as a violator of previously imposed sentenced.  In April of 2006 he was adjudged a violator and the suspension of the sentence was lifted.  In 2009 Allen Wray was convicted on the robbery charge.  The Court indicated that his sentence was to commence on that date in April 2009 and to run concurrent with his current sentence for the drug case.  Allen Wray argued that he was not afforded full credit for his time served awaiting trial and sentence.  The Supreme Court agreed in part and denied in part.  The Court indicated that the period from January 30, 2006 until April 12, 2006, should have been credited towards his robbery sentence.  The Court found its reasoning within the statute.  Allen Wray was awaiting sentence during this period, and although he received credit for this period towards his drug case, he was not sentenced until April 2009.  See full opinion at: State v. Allen Wray

Categories: Uncategorized.

First Amendment Right to Tape Police During an Arrest

Carla Gericke and Tyler Hanslin were pulled over for a traffic stop.  In the process, Hanslin informed the police officer he had a firearm.  The police were taking him into custody when Gericke informed the officer that she was going to record and tape him.  He asked her to get into her vehicle.  She complied, however, when other officers arrived she was arrested for refusing to tell the officer where she put the camera.  The charges were later dropped and she pursued a claim for violation of civil rights against the officers.  The officers claimed qualified immunity but the First Circuit Court of Appeals found that there is First Amendment Right and that the officers should have known based on Glik.  See full opinion:  Gericke v. Gebin

Categories: Civil, News, Recent Decisions.

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