Sullivan Whitehead & DeLuca LLP

Commercial Property Owner’s Responsibility to Invitee

Paul Sullivan — Fri, 17 May 2013 19:18:55 +0000

The Rhode Island Supreme Court ruled in favor of commercial property owner. Plaintiff/Appellant had sued commercial property owner after an injury on the property. The Supreme Court reviewed the Superior Court’s ruling granting Summary Judgment. In its opinion the Court sided with the property owner. The property had been leased and as part of the lease agreement, the lessee was responsible for the maintenance and repairs of the property. The property owner’s argument that none of the three exceptions, (1) that its lease with Healthtrax did not require it to repair and maintain the premises; (2) that plaintiff‟s injury was not caused by a latent defect, and (3) that HCP did not assume a duty to repair the premises, applied in this case was upheld. See full opinion: Berard v. HCP, Inc.

Expungement vs. Sealing of Records

Paul Sullivan — Mon, 06 May 2013 18:25:08 +0000

The Rhode Island Supreme Court has handed down a significant opinion to the challenges facing probation individuals and getting their records/BCI cleared up via sealing of records. The Court held that there is a distinct recognition that nolo pleas followed by probation only are not convictions for purposes of the sealing of records statute. Therefore any subsequent dismissed action is subject to the sealing provisions provided in by RI Gen. Laws. See Opinion at: State v. Poulin

U.S. Supreme Court Holds That More Than Just Dissipating Alcohol Level Needed Before Warrant-Less Search

Paul Sullivan — Mon, 22 Apr 2013 12:59:08 +0000

Last week the United States Supreme Court answered a question lingering around for 47 years. The Court held that just because alcohol dissipates in the blood stream, it is not automatic grounds to allow for a warrant-less search of blood specimen. McNeely had been stopped by a police officer after the police officer witnessed him crossing the center-line and speeding. McNeely refused a breathalyzer and the officer took him to a hospital. When McNeely refused to provide a blood sample, the officer ordered the technician to take it anyway. McNeely was determined to be intoxicated. However, the officer never applied for a search warrant to take the sample. The Supreme Court was direct and to the point. The State, in this case Missouri, is not entitled to a per se rule that permits for a warrant-less search absent exigent circumstances. Dissipating blood-alcohol concentration alone is not an exigent circumstance the Court holds. See Entire Opinion at: Missouri v. McNeely

Boston

Paul Sullivan — Tue, 16 Apr 2013 12:07:39 +0000

Condolences to all the Victims, Families and Friends of the Boston Marathon tragedies from the Sullivan Whitehead & DeLuca family.

Rhode Island Divorce Law – Child Custody, Placement & Visitation

Paul Sullivan — Tue, 05 Mar 2013 13:42:05 +0000

In Rhode Island, when the Family Court looks to determine child custody, child placement, and visitation rights of the parent, the ‘paramount consideration’ is the best interests of the child. The Rhode Island Supreme Court has set out a non-exclusive list of factors for the Rhode Island Family Court judge to weigh in determining where the best interests of the child lie in a particular case. The following are the factors that the court considers when determining the best interest of the child for awarding custody, placement and visitation rights:

1. The wishes of the child’s parent or parents regarding the child’s custody.

2. The reasonable preference of the child’s, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.

3. The interaction and interrelationship of the child with the child’s parent or parents, the child’s siblings, and any other person who may significantly affect the child’s best interest.

4. The child’s adjustment to the child’s home, school, and community.

5. The mental and physical health of all individuals involved.

6. The stability of the child’s home environment.

7. The moral fitness of the child’s parents.

8. The willingness and ability of each parent to facilitate a close and continuous parent- child relationship between the child and the other parent.

The Rhode Island Supreme Court has further advised that the best interests of a child in a particular case should not be determined by focusing exclusively on any one of these factors; instead, the hearing justice should “consider a combination of and an interaction among all the relevant factors that affect the child’s best interest.” These factors are called the Pettinato factors. See Parker v. Williams, 896 A.2d 44 (R.I. 2006); Pettinato v. Pettinato, 582 A.2d 909 (R.I. 1990).

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

Aldo, the Drug Sniffing Dog Gets Passing Grade by U.S. Supreme Court

Paul Sullivan — Wed, 27 Feb 2013 20:12:56 +0000

Aldo, the drug sniffing drug used in a Florida stop alerted on a vehicle. The police officer had asked for consent and the driver declined. Based on the officer’s observation of an open beer can and the defendant’s nervousness, the office used his dog Aldo to do a sniff around the vehicle. Aldo alerted and the officer proceeded to check the vehicle. The officer found contraband but none which Aldo had been trained to detect. In a subsequent stop of the defendant, Aldo again alerted on his vehicle. This time the search revealed nothing. While the Florida Supreme Court found for the Defendant on appeal based on requiring that there be some documentation available as to the dog’s hit and misses, the United States Supreme Court reversed. So Aldo can continue to have false positives and the search will be upheld based on the facts found with Florida v. Harris. See full opinion at: Florida v. Harris

Foreclosure, Mortgage and Promissory Notes

Paul Sullivan — Tue, 19 Feb 2013 14:51:01 +0000

In traditional Selya style, the Circuit Judge walks us through the distinction in law and equity as he positions to answer the Plaintiff’s challenge in foreclosure proceedings. The Plaintiff defaulted on her home loan. Upon the default, the note holder foreclosed on her property by sale. The Plaintiff challenged the foreclosure which started in the Land Court, but eventually the matter wound up in the United States District Court for the District of Massachusetts. Judge Selya delivers an observed and pointed opinion on beneficial interest of the loan and bare legal title of mortgage. The ruling is limited to Massachusetts at it is premised on the state statutes and interpertations thereof. The Plaintiff failed in her appeal as Judge Selya delivered that “the MERS framework is faithful to the age-old tenets of mortgage law in Massachusetts and that, therefore, the foreclosure here was not unlawful.” Full opinion: Culhane v. Aurora Loan Services of Nebraska

Allstate, Exclusion Clause and Regular Use of Insured Person

Paul Sullivan — Mon, 04 Feb 2013 21:52:02 +0000

The Rhode Island Supreme Court recently upheld a decision in favor of Allstate agreeing with the lower court that the policy was unambiguous and therefore appellant was not covered. The facts were pretty straight-forward. The plaintiff was injured in a serious accident. The defendant or offending vehicle was covered by an Allstate issued policy. The defendant an Allstate insured was driving a vehicle his father had leased for him for his regular use. The plaintiff sued for her injuries and the full policy was tendered. However, she sought additional coverage from a second policy also from Allstate. The defendant’s mother had a policy of her own that included resident-relative. The defendant lived with the mother. The policy provided a section that excluded any additional insured drivers that had a vehicle that they used regularly. There was a also a provision in the policy that when checked indicated that certain “Drivers Excluded” from the policy. There were none listed. The plaintiff argued that the policy was ambiguous among other issues because defendant should be covered since he was not excluded. The Superior Court disagreed and the Rhode Island Supreme Court affirmed. Allstate prevailed that the policy as written is not ambiguous and that the party could not overcome any of the other issues. See full decision: Allstate v. Ahlquist

Judge Smith Rules that Out-of-State Counsel Subject to Lawsuit in Rhode Island

Paul Sullivan — Thu, 24 Jan 2013 14:42:35 +0000

Attorneys from Texas advertised on their website that they could represent in all 50 states. Rhode Island plaintiff sought out and retained the firm. After the Texa firm settled plaintiff’s claim and plaintiff becoming dissatisfied with the settlement, plaintiff sought out counsel to file claim against the Texa firm. Judge Smith from the United States District Court for the District of Rhode Island sided with the plaintiff that Texa firm had enough connection to Rhode Island during the handling of the case and found that Texa attorneys were subject to lawsuit in Rhode Island. See Judge Smith’s opinion at: Dennett v. Archuleta

Clear Right to Attorney on Post-Conviction Relief Application-Court Rules

Paul Sullivan — Wed, 26 Dec 2012 21:42:09 +0000

The Rhode Island Supreme Court has made it clear that a first time applicant for Post-Conviction Relief shall have a right to an attorney. The Court, interperting RI Gen. Laws Section 10-9.1-5, found that a first time applicant should be referred to the Public Defender’s office and should that office not be available for representation, then the court shall appoint a a private attorney. The Court’s reasoning was straight-forward and explained its prior holding in Shatney v. State [755 A.2d 130 (R.I. 2000)]. Specifically, the Court held:

‘…that an indigent, first-time applicant for postconviction relief is entitled to be represented in the first instance by the Public Defender, who shall meet with the applicant for a preliminary inquiry into the claim or claims which may form the basis of the requested relief. In cases in which the Public Defender “is excused from representing the applicant because of a confilct of interest or is otherwise unable to provide representation, the court shall assign counsel to represent the applicant.’

The Court further expressed that in cases where the attorney cannot find grounds to continue, the attorney may seek to withdraw from the case. See, Campbell v. State